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IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN. MR. JUSTICE QAZI FAEZ ISA. MR. JUSTICE MAQBOOL BAQAR. CRIMINAL APPEAL NO. 178-L OF 2009. (On appeal against the judgment dated 30.04.2009 passed by the Lahore High Court, Lahore in Criminal Appeal No. 739 of 2006 and M. R. No. 69-T of 2006). Nasir Javaid and another. …Appellant(s) VERSUS The State. …Respondent(s) For appellant No. 1: Syed Iftikhar Hussain Gillani, Sr. ASC For appellant No. 2: Mr. Jalees Ahmed Meer, ASC. For the State : Ch. Zubair Ahmed Farooq, Addl. P. G. Pb. Date of Hearing: 15.03.2016 (Judgment Reserved) J U D G M E N T EJAZ AFZAL KHAN, J.- This appeal with the leave of the Court has arisen out the judgment dated 30.04.2009 of a Division Bench of the Lahore High Court, Lahore whereby it dismissed the appeal filed by the appellants and answered the Capital Sentence Reference No. 69 of 2006 in the affirmative. 2. Brief facts of the case, as can be culled from the FIR and the statements of the PWs recorded in the Court are that on 23.09.2004 at about 1:30 PM, Husnain Riasat a son of the complainant who was 4 years old left his house to purchase toffees but did not come back. The complainant went far and wide in search of his son, made announcements on loudspeakers of the mosques and also reported the matter in Police Station, Dhulla, District, Gujranwala but CRIMINAL APPEAL NO. 178-L OF 2009 2 of no avail. On the night intervening 24 and 25.09.2004 when the complainant alongwith his brother while searching Husnain Riasat, reached a street adjoining his residential house, he noticed a nylon bag lying near the gate of his factory wherefrom blood was oozing. The brother of the complainant on opening the bag found the dead body of the latter’s son soaked in blood. It was without footwear. “Asif is a dog; it is the result of his cruelty; my blood boils when I see him” were the words written on the bag. Nasir Javed and Qaisar Javed the appellants alongwith their two brothers, Tariq Javed and Asif Javed, the acquitted co-accused, were charged for committing the gruesome murder in a case registered against them under Sections 302/34/364A PPC and 7(a) ATA vide FIR No. 318 of 2004 dated 23.09.2004 at Police Station Dhulla, District Gujranwala. The motive for the occurrence is that the complainant supported one Muhammad Nadeem in a case of murderous assault registered against Nasir Javed appellant and purchased a shop the latter was working in, which also resulted in exchange of threatening words in between the complainant and the appellants a few days before the occurrence. 3. During the course of investigation the appellants and their acquitted co-accused were found linked with the commission of the crime. After the completion of investigation, they were forwarded to the Court of the learned Judge Anti-Terrorism Court No. 1, Gujranwala for trial who on its conclusion convicted and sentenced the appellants to death on three counts under Section 364-A, 34, 302(b) PPC and 7(a) ATA and to pay compensation of one lac each or in default to undergo six months S.I., acquitted the co- accused vide judgment dated 25.4.2006 and sent the capital CRIMINAL APPEAL NO. 178-L OF 2009 3 sentence reference to the High Court for its confirmation. The appellants preferred an appeal before the High Court against the conviction and sentence which was dismissed while the capital sentence reference was answered in the affirmative. 4. Learned ASC appearing on behalf of the appellants contended that the occurrence is blind and un-witnessed; that the circumstantial evidence collected during the course of investigation does not form a chain as could link the appellants with the crime; that the last seen evidence, appears to be concocted because of its belated appearance; that the evidence relating to disposal of the dead body at 11:00 PM near the workshop also appears to be concocted when no source of light near or around the place has been indicated in the site plan nor any recovery thereof has been made. Extra-judicial confessions, the learned ASC argued, have been attributed to the appellants and the acquitted co-accused but they being of weak probative worth cannot be used as either evidence or corroborative of the charge, that too, when no reason much less plausible has come forth for making such confession before Ghulam Ahmed, Basharat Ali and Muhammad Zaman. Discoveries so called, the learned ASC argued, cannot boost up the case of the prosecution when none of the pieces of evidence commands credence. 5. Learned ASC appearing on behalf of the respondents contended that motive, last seen evidence, extra-judicial confession, recoveries and evidence relating to disposal of the dead body not only form a chain but connect the appellants with the dead body of the deceased. He next contended that these pieces of evidence when linked together rule out the hypothesis of innocence of the CRIMINAL APPEAL NO. 178-L OF 2009 4 appellants, therefore, both the Courts have rightly convicted and sentenced them. Such finding, the learned ASC maintained, being in line with the principles laid down by this Court for appraisal of evidence in criminal cases is not open to any exception. 6. We have gone through the entire record carefully and considered the submissions of the learned ASCs for the appellants as well as the learned Addl. P. G. Punjab for the State. 7. This case, so to speak, hinges on circumstantial evidence. What tempts the Court to believe this type of evidence is the maxim that men may lie but circumstances don’t. We don’t nor can we doubt and dispute its centuries old well tested wisdom. We rather use it as a touchstone for assessing and evaluating the evidentiary worth of the circumstantial evidence. It enables us to reason unknown from the known if the circumstances are reported fairly and faithfully. Deduction about the guilt of the accused could well be drawn from the circumstances as are well authenticated. But where the circumstances so reported are tinkered and tampered with, or contrived and conjured up, they cannot be accepted without careful and critical analysis. Circumstantial evidence can form basis of conviction if it is incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt. This case thus has to be analyzed and adjudged in this perspective. 8. The first significant piece of evidence in this case is motive. The motive for the occurrence is that the complainant supported one Muhammad Nadeem in a case of murderous assault registered against Nasir Javed appellant and purchased a shop the latter was working in, which also resulted in exchange of threatening CRIMINAL APPEAL NO. 178-L OF 2009 5 words in between the complainant and the appellants a few days before the occurrence. The statement that the complainant supported the said Muhammad Nadeem remained unproved. In case it is true, it was not of a nature as could drive the appellants to go to such an extreme when the matter between the said Muhammad Nadeem and the appellant Nasir Javed ended in a compromise? How could purchasing of the shop incense any of the appellants to commit such a gruesome crime, when the shop was admittedly purchased by Muhammad Arif, a cousin of the complainant? When, where and in whose presence the appellants exchanged the threatening words with the complainant remained unproved and unsubstantiated. We, thus, don’t think such a tragic incident could be a fall out of a motive of this type. 9. The other evidence in the sequence is that of last seen which has been furnished by PW-11. According to this witness, he and Mohammad Akhtar the abandoned PW saw the deceased in the company of the appellants on a motorbike at 2:00 PM on the day of occurrence. But strangely enough he did not inform the complainant about this episode nor did he report it, notwithstanding, disappearance of the child became talk of the town on the same day on account of its having been proclaimed through the loudspeakers of the mosques in the village. When questioned as to why he remained silent for three days, he replied that he went to Lahore. Accepted, for a while that he went to Lahore and came back three days later. But what about Muhammad Akhtar who did not go anywhere? Why did he choose to be silent? We don’t find any answer to the aforesaid questions. The story of going to Lahore is thus nothing but a lie to lend crutches to another lie. The PW stated CRIMINAL APPEAL NO. 178-L OF 2009 6 that he saw the deceased sandwiched in between the appellants on a motorbike from the shop of Abdul Razzaq. What business this witness had in the village when he is a landlord of village Alipur Chatha and Hafiz Abad. He stated that he came to the Dairy Form of Zafarullah to purchase a buffallow but he was not available. Did he meet anybody on the Dairy Form? Did he inquire from anybody about Zafarullah? If not how did he come to know that Zafarullah was not available? Answers to these questions and examination of the person informing him about Zafarullah could have proved his presence in the village but his failure to answer the questions mentioned above and failure on the part of the prosecution to examine the witness would negate his presence in the village. Given that he was in the village, what brought him to the shop of Abdul Razzaq? His reply was that Muhammad Akhtar wanted to purchase cigarettes. But neither Muhammad Akhtar nor Abdul Razzaq has been examined as PWs. Their examination could have established the presence of the PW and his companion in the shop but failure on the part of prosecution to examine them not only belied his presence in the shop but also gave rise to an adverse inference against it under Article 129(g) of the Qanoon-e-Shahadat Order, 1984. Given that he was present in the shop of Abdul Razzaq, but how could he see the deceased and the appellants when according to the site plan, gate of the house of the appellants as well as the street across it are not visible from the shop. He craned his presence to the veranda of the shop and then to the corner of the street but this addition appears to be an afterthought as neither the veranda nor the corner of the street has been indicated in the site plan. Given that street as well as the gate were visible from the shop, but what CRIMINAL APPEAL NO. 178-L OF 2009 7 was that extraordinary or unusual which attracted the PW to watch the events with such an amount of keenness particularly when it is not the case of the prosecution that the child was crying or resisting his carriage on the motorbike. Why should the appellants carry the child so openly on a motorbike and thereby expose their identity when their ultimate aim was to do away with him? Both the questions, in the absence of any explanation, raise serious doubt about the veracity of the witness. Testimony of this witness with all his deftness and dexterity does not inspire confidence. We, therefore, don’t feel inclined to place any reliance thereon. 10. Then comes the evidence relating to disposal of the bag containing the dead body of the child. PW-10 furnished the evidence of this episode. According to the PW, he visited workshop of Muhammad Riaz situated at Mohallah Tufail Town, Rajkot District Gujranwala at 11:00/11:15 p.m. but the workshop was closed. He, thus, went to the residence of Muhammad Riaz which was lying on the back of the workshop. He after knocking at the door of the residence was waiting for the response, that he saw the appellants on a motorbike dispose of a nylon bag. The statement accounting for the presence of the witness at the alleged place of disposal of the dead body of the child is not free from doubt when there is absolutely nothing in the statement to show any emergency necessitating such a dash to the workshop located at a distance of 38/40 kilometers, at such odd hours, notwithstanding, the desired spare parts could be had from the nearby market on the following day. How could he see and identify the appellants when the tube- lights which were allegedly lit at the relevant time have not been indicated in the site plan nor have they been recovered. The CRIMINAL APPEAL NO. 178-L OF 2009 8 testimony of this witness appears to be unnatural and even unconformable to common human experience and observation and thus does not inspire confidence. We, therefore, leave it out of account. 11. Next is the evidence of extra-judicial confessions. Evidence of this type because of its being concocted easily is always looked at with doubt and suspicion. It could be taken as corroborative of the charge if it, in the first instance, rings true and then finds support from other evidence of unimpeachable character. If the other evidence lacks such attribute, it has to be excluded from consideration. Extra-judicial confessions of the appellants when examined in this light neither ring true nor agree with truth nor fit in with the surrounding circumstances of the case. The circumstances disclosed therein that the complainant made their lives miserable, implicated them in criminal cases and insulted their mother are not supported by the prosecution evidence. According to the statement of PW-13, the appellants were driven by their immense sense of guilt to make extra-judicial confessions. But why should they make extra-judicial confessions before PW-13, who being closely related to the complainant was expected to do them more harm than good. Why should they make such confessions before the said witness who did not hold any authority nor did he wield any influence as could hold out any hope to the appellants and thereby tempt them to make any confessions. We don’t find any answer to the aforesaid questions nor any other justification for believing them. We are rather amazed to note as to why did the Trial Court and the Court of Appeal believe the extra-judicial confessions of the appellants and discard those of the acquitted co-accused. CRIMINAL APPEAL NO. 178-L OF 2009 9 Notwithstanding all of them suffering from alike infirmities deserve alike treatment. We don’t find any plausible reason to treat them differently. We, thus, hold that the extra-judicial confessions are not worthy of reliance and cannot be taken even as corroborative of the charge. 12. The medical evidence, too, does not support the prosecution version as the swelling on the anus of the victim has not been accounted for. This injury on the face of it would tend to point the accusing finger to some maniac or sadist who derives pleasure from an act of this type. Withholding of the original report of the chemical analysis would give added strength to the inference. We, therefore, don’t think the medical evidence supports the prosecution version. 13. The last piece of evidence consists of recoveries. This evidence at its best can be taken as corroborative rather than evidence of the charge. The reason is that it, per se does not name or nominate any accused, nor does it prove or point to his guilt. It simply supplements the other evidence on the record, if it, in its own rights, inspires confidence. Having thus analyzed, the evidence of recoveries does not inspire confidence as the witnesses attesting them being closely related to the complainant are highly interested. Such recoveries also appear to be contrived and conjured up when nothing incriminating came forth, pursuant to the first raid of the appellants’ house made soon after the occurrence and then everything incriminating so-called popped up from the same places of the house pursuant to another raid made 10/15 days later. The evidence of recoveries against this background has little evidentiary worth. So is the case with the evidence of the handwriting expert CRIMINAL APPEAL NO. 178-L OF 2009 10 whose opinion, that specimen handwritings have been executed cautiously and consciously, not only speaks for itself but takes it far off precision and accuracy. This is but natural because the techniques of this branch of expertise have not been perfected to a level where opinion based on comparison could be treated as unerring and infallible. It thus follows that none of the pieces of evidence discussed above, either individually or collectively, is compatible with the guilt of the appellants nor is it incapable of explanation on any other reasonable hypothesis than that of the guilt of the appellants. It would not thus be safe to maintain the finding of conviction on this evidence. 14. For the reasons discussed above, we allow this appeal, set aside the conviction and sentence of the appellants and acquit them of the charges. They be set free forthwith, if not required in any other case. Judge Judge Judge Announced in open Court at Islamabad on ________________ Judge ‘Not approved for reporting’ M. Azhar Malik

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.180 of 2020 (Against the judgment dated 05.11.2015 passed by the Lahore High Court Lahore in Criminal Appeal No.1033 of 2011 along with M.R. No.268 of 2011) Tariq Mehmood …Appellant(s) Versus The State …Respondent(s) For the Appellant(s): Mr. Tariq Mehmood Butt, ASC For the State: Mr. Muhammad Jaffar, Addl. Prosecutor General Punjab Date of hearing: 02.11.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Indicted for homicide as well as murderous assault, along with five others, subsequently acquitted, Tariq Mehmood, appellant is alone with a guilty verdict, returned by a learned Additional Sessions Judge at Khoshab vide judgment dated 31.05.2011, upheld by the High Court vide judgment dated 05.11.2015 albeit with alteration of death penalty into imprisonment for life, being impugned through leave of the Court. 2. Muhammad Shahbaz, 23, hereinafter referred to as the deceased, was fatally shot at 10:00 p.m. on 20.7.2009 within the precincts of Police Station Khoshab whereas Muhammad Ramzan (PW-9), attacked with an hatchet, survived the assault in the backdrop of a dispute over turn of irrigation water; incident was reported by deceased’s brother Muhammad Riaz (PW-8); besides the appellant, he blamed the Sanwal, Muhammad Ahsan son of Muhammad Ramzan, Muhammad Ahsan son of Sanwal, Shahadat Hussain alias Mithu and Nazar Hussain, variously armed for mounting the assault on the deceased and the PWs, present at complainant’s shop. Sanwal Khan accused opened the attack with an exhortation followed by a shot by the appellant on the left side of deceased’s chest; Nazar Baloch dealt hatchet blow to Muhammad Ramzan (PW-9) on the left side of his head Criminal Appeal No.180 of 2020 2 followed by a club blow by Muhammad Ahsan on his left elbow. Complainant escaped a fire shot by Shahadat Hussain; Muhammad Ramzan (PW-9) also survived unscathed by a fire shot targeted by Sanwal Khan accused; Muhammad Ahsan accused lastly hit the complainant on his flank; commotion attracted Muhammad Mumtaz (PW-10) to the spot. Muhammad Ramzan (PW-9) with two incised wounds on left side of head and outer back of left elbow joint was medically examined under a police docket at 10:40 p.m; autopsy followed 11:30 p.m. with a solitary fire shot on the left side of chest, blamed as cause of death. As the investigation progressed, subsequent to their arrest, the appellant led to the recovery of .30 caliber pistol (P-7) whereas acquitted co-accused got recovered weapons assigned to them in the crime report. Forensic reports san support to the prosecution. 3. Learned counsel for the appellant contends that evidence disbelieved both by the trial Court as well as the High Court qua majority of the accused, each assigned a distant and specific role, cannot sustain conviction without independent corroboration, conspicuously lacking inasmuch as neither the alleged motive nor recovery of pistol (P-7) advanced prosecution case vis-à-vis the appellant; that occurrence being a night affair with an electric bulb being the sole source of light question of identity of the assailants, surprising the witnesses at a small outlet is looming large on the scene; that evidence of Muhammad Ramzan (PW-9), disbelieved by the High Court qua his own assailant would hardly qualify for a credit as a witness on a capital charge; that complainant’s presence at the crime scene, otherwise far from being plausible, is additionally confounded by his failure to undertake medical examination despite allegation of assault resulting into injuries on his person. It would be unsafe to maintain the conviction, concluded the learned counsel. The learned Law Officer has faithfully defended the impugned judgment. 4. Heard. Record perused. 5. Though certainly not a constituent of the crime, nonetheless, prosecution’s failure on motive, given the number and diverse background of the assailants, cannot be viewed as entirely without implications for the prosecution inasmuch as the even dated situation, cited as a motive in the backdrop, projects the venue as somewhat intriguing and as such spells out, in retrospect, a scenario incompatible with the script, outlined in the crime report. Miraculous escape by the two eye witnesses, each targeted with handguns directly Criminal Appeal No.180 of 2020 3 by the assailants from a close blank is a story that may not find a buyer; absence of casings at the spot and investigating officer’s failure to effect recovery of the weapons are additional blows to witnesses’ credibility, concomitantly undermining status of the entire case, inasmuch as in the face of wholesale rejection of evidence, found inherently flawed. Fractional reliance to maintain appellant’s solitary conviction on the statements of witnesses disbelieved qua their own assailants is an option fraught with potential risk of error and as such inconsistent with the principle of safe administration of criminal justice. Appeal is allowed; impugned judgment is set aside; the appellant is acquitted of the charge and has been ordered to be released forthwith if not required to be detained in any other case vide short order of even date. Judge Judge Judge Islamabad, the 2nd November, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MANZOOR AHMAD MALIK MR. JUSTICE SAJJAD ALI SHAH MR. JUSTICE QAZI MUHAMMAD AMIN AHMED Criminal Appeal No.185/2006 and Jail Petition No.694/2018 (On appeal from the judgment dated 13.6.2005 of the High Court of Sindh, Karahi passed in ATA No.3/2004) Waqar A. Shamsi (Criminal Appeal No.185/2006) Muhammad Arshad (Jail Petition No.694/2018) … Petitioner(s) Versus The State (in both cases) … Respondent(s) For the Petitioner(s) : Syed Rifaqat Hussain Shah, AOR (in Criminal Appeal No.185/2006) Nemo. (in Jail Petition No.694/2018) For the State : Ch. Aamir Rehman, Additional Attorney General Mr. Khadim Hussain, Additional Prosecutor General, Sindh Date of Hearing : 14.10.2019. JUDGMENT QAZI MUHAMMAD AMIN AHMED, J.- Hafiz Muhammad Umar, 18, resident of Phase-VI, D.H.A. Karachi, a student of Saint Andrew School , left home in the morning of fateful day i.e. 16-9-2003 to attend the school; he did not return at the expected point of time whereupon his brother Muhammad Faisal (PW-1) inquired from his friend Waqar Ali Shamsi, appellant herein, on a cell phone, albeit with no information; in the meanwhile, the complainant received a phone call; the anonymous caller claimed custody of Hafiz Muhammad Umar while demanding ransom for his release. CPLC, (Citizen Public Liaison Committee) was taken on board whereafter the incident was formally reported at 8:00 p.m. A supplementary statement, on the following day, divulged further details of communication between the captor and the abductee on the Criminal Appeal No.185/2006 and Jail Petition No.694/2018 2 basis whereof, the appellants were arrayed as suspects alongside Imran Masih alias Raja, since absconder. Waqar Ali Shamsi appellant was taken into custody; pursuant to a disclosure, he led the police party alongside witnesses to a premises, occupied by the absconder under rent, wherefrom the dead body of Hafiz Muhammad Umar was found, bundled in a sack; as the investigation progressed, Muhammad Arshad petitioner was arrested on 20-9-2003; the accused were finally sent to trial as juveniles; the trial culminated into their conviction vide judgment dated 15.1.2004; they were sentenced for homicide, abduction for ransom and terrorism, findings upheld by the learned High Court with extension of benefit of section 382-B of the Code of Criminal Procedure 1898, vide impugned judgment dated 13-6-2005, being assailed by the convicts; leave has been granted in Criminal Appeal No.185 of 2016 filed by Waqar Ali Shamsi, clubbed with Jail Petition No.694 of 2018 filed by Muhammad Arshad; with a common thread, these are being decided through this single judgment. 2. For convicts, it is argued that prosecution failed to adduce sufficient evidence to positively link them with the crime and that entire case is structured upon a misplaced and misconceived suspicion, aspects that escaped notice by the courts below. The learned Additional Attorney General assisted by Additional Prosecutor General Sindh faithfully defended the impugned judgments; by referring to various pieces of evidence, they maintained that there existed sufficient evidence, usually procurable in the cases of like nature, to frame the accused with the charge by excluding every hypothesis of their innocence. 3. Heard. Record perused. 4. Calamity strikes by surprise; people seldom fall prey to crimes under ideal circumstances, therefore, it would be unrealistic to insist for or expect choice uniform pieces of evidence in every criminal case; what is to be essentially seen is that whether prosecution was able to come forward with the available evidence, possible under the circumstances of the case and that whether such a volume or nature of evidence is sufficient to sustain the charge. In the present case, the complainant, deceased’s brother, unsuspectingly sought information from Waqar Ali Shamsi appellant, being a fast friend, expected to know the whereabouts; as the investigation geared up, he made his breast clean, reaching out to the deceased and, thus prosecution was able to constitute a chain of circumstances, link by link, through last seen evidence, occupation of premises, recovery of electric wire and ropes, Criminal Appeal No.185/2006 and Jail Petition No.694/2018 3 employed by the culprits to cause death confirmed as asphyxial and, thus argument that there was no evidence for a guilty return does not hold much water. Devastated family residing in an affluent neighbourhood had no axe to grind against the appellant, deceased’s best friend, to swap him with the real offender; his exclusive knowledge is a piece of evidence inexorably pointed upon his culpability; web of circumstances is equally hovering over the guilt of Muhammad Arshad petitioner as well; they cannot escape the consequences of deceased’s murder on the strength of bald denials, supported by inconsequential defence furnished by their well-wishers; their convictions as well as sentences consequent thereupon for an offence under Section 302 (b) of the Pakistan Penal Code, 1860 are maintained, however, we have not been able to find out any piece of evidence to frame them with the charge of abduction for ransom, even obliquely, as there is no proof that communication by the anonymous caller demanding ransom was actually made by the convicts; phone data sans positive proof about the caller or subscriber of cell phone handset as the calls were made, according to prosecution’s own case, from a public calling booth; ransom was never transacted, therefore, prosecution case to the extent of abduction for ransom is on a stumbling ground; they are acquitted from the charge under section 365-A of the Code ibid. Concomitantly, their conviction under section 7 (e) is set aside and they are acquitted from the charge as well; sentence shall be commuted with the benefit provided under Section 382-B of the Code of Criminal Procedure 1898. With the above modification, Criminal Appeal is allowed and the Jail petition is converted into appeal with the same consequence. JUDGE JUDGE Islamabad, the 14th October, 2019 JUDGE Ghulam Raza/*

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.19-P/2014 (On appeal from the judgment dated 14.12.2011 passed by the Peshawar High Court, Peshawar in Ehtesab Criminal Appeal No.15 of 2003). Abdullah Jan …Appellant(s) VERSUS The State & others …Respondent(s) For the Appellant(s) : Syed Zafar Abbas Zaidi, ASC Haji Muhammad Zahir Shah, AOR For The National Accountability Bureau : Syed Azeem Dad, Additional Deputy Prosecutor General, National Accountability Bureau Date of Hearing : 30.04.2019 ORDER Qazi Muhammad Amin Ahmed, J.- Abdullah Jan, appellant herein, is in receipt of a guilty verdict returned by learned Judge, Accountability Court No.1, Peshawar vide impugned judgment dated 13.9.2013. As a Store Keeper in Communication & Works Department, he was found to have accumulated assets, hugely disproportionate to his legitimate source of income. Feeling aggrieved, the appellant questioned vires of his conviction before the Peshawar High Court; the attempt met with no better fate as the learned High Court concurred with the findings recorded by the learned trial Court vide judgment dated 14.12.2011. 2. We have noticed that the learned High Court while affirming findings rendered by the learned Accountability Court has not discussed evidence adduced by the prosecution as well as the appellant and thus we feel handicapped to objectively verify the points of determination as well as contentions raised by the appellant and therefore consider it in the fitness of things to remit Criminal Appeal No.19-P/2014 2 this matter to the learned High Court so as to benefit us with detailed discussion within the contemplation of Section 367 of the Code of Criminal Procedure, 1898. This appeal is allowed, the impugned judgment is set aside, the case is remanded and shall be deemed to be pending for decision afresh. It is expected that the learned High Court would find it convenient, in the fullness of time, sooner rather than later, to decide the issue, after affording opportunity of hearing to the appellant. JUDGE JUDGE Islamabad, the 30th of April, 2019 Ghulam Raza/* JUDGE

                             /                                                                             /                   1                                                                                                            -                                                                                                                                                                                                                                                                                    -                            2 Criminal Appeal No. 190/2016                                                                                                                                                                                                                                                                                                                                                     3 Criminal Appeal No. 190/2016                                                                                                                                                                                                                                                                                                                                   4 Criminal Appeal No. 190/2016                                                                                                                                                                      5 Criminal Appeal No. 190/2016

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SAYVED MAZAHAR ALl AKBAR NAQVI MR. JUSTICE MUHAMMAD ALl MAZHAR MR. JUSTICE ATHAR MINALLAH CRIMINAL APPEAL NO. 190 OF 2020 (Against the judgment dated 21.10.2015 passed by the Lahore High Court Rawalpindi Bench in Criminal Appeal No. 33-1/20I0 Criminal Revision No. 56/2010 and Murder Reference No. 100/2010) All Asghar @ Aksar Appellant(s) VERSUS The State Respondent(s) For the Appellant(s): Syed Rifaqat Hussain Shah, ASC For the State: Mirza Muhammad Usman, DPG For the Complainant: Mr. Muhammad Bashir Paracha, ASC Date of Hearing: 0712.2022 JUDGMENT SAYYED MAZAHAR ALl AKBAR NAQVI, J. Appellant Ali Asghar was tried by the learned Additional Sessions Judge, Attock, pursuant to a case registered vide FIR No. 258 dated 21.08.2009 under Section 302 PPC at Police Station Saddar, Attock for committing murder of Ehsan Ullah, brother of the deceased. The learned Trial Court vide its judgment dated 1502.2010 convicted the appellant under Section 302(b) PPC and sentenced him to death. He was also directed to pay compensation amounting to Rs.200,000/- to the legal heirs of the deceased or in default whereof to further undergo six months SI. in appeal the learned High Court maintained the conviction and sentence of death under Section 302(b) PPC. The amount of compensation and the sentence in default whereof was also maintained. Being aggrieved by the impugned judgment, the appellant filed Jail Petition No. 501/2015 before this Court wherein Criminal Appeal No. 190/2020 -: 2 leave was granted by this Court vide order dated 05.03.2020 and the present appeal has arisen thereafter. 2. The prosecution story as given in the impugned judgment reads as under:- "2. Brief facts of the case, as disclosed by Naveed Akram, complainant (PW-10) in his statement on the basis of which formal crime report was recorded, are that they are three brothers. On 21.08.2009, he along with his elder brother Ehsan UIlah and Iftikhar Khan (PW-11) was sitting in their Baithak situated in Mauza Mongiwal. His brother Ehsan Ullah went out towards their agricultural farm. He and lftikhar Khan (PW-11) also followed him. At 04.30 pm, when they reached near the shop of one Abdul Marian which was closed due to Jummah tul Mubarik and Ali Asghar, appellant, was standing near the shop who raised lalkara to Ehsan Jllah, deceased, that he had insulted him at his farm and he will teach him a lesson and after taking out .30 bore pistol from fold of his Shalwar, made straight fires at Ehsan Ullah which landed on his right hand and right side of his abdomen who after sustaining injuries fell down. The occurrence, besides him was witnessed by lftikhar Khan (PW-11) and Azeem Khan (given up PW), who per chance was passing by there. Ali Asghar after the occurrence fled away from the spot. The motive behind the occurrence, as disclosed by the complainant in [xhPH was that on 20.08.2009 a quarrel took place between Ali Asghar and servant of Ehsan Ullah deceased and Ehsan Ullah reprimanded the appellant and due to this grudge. All Asghar has committed the murder of Ehsan Ullah. The complainant further stated-that they were taking Ehsan Ullah in injured condition to hospital, Attock, who succumbed to the injuries. 3. After completion of the investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. The prosecution in order to prove its case produced thirteen witnesses. In his statement recorded under Section 342 Cr.P.C, the appellant pleaded his innocence and refuted all the allegations leveled against him. He did not opt to appear as his own witness on oath as provided under Section 340(2) Cr.P.0 in disproof of the allegations leveled against him. He also did not produce any evidence in his defence. 4. Learned counsel for the appellant while opening his arguments has stated that there are glaring contradictions and dishonest improvements in the statements of the eye-witnesses, which escaped the notice of the learned courts below. Contends that the presence of the Criminal Appeal No. 190/2020 -: 3 prosecution witnesses at the place of occurrence was doubtful and they have not explained the same. Contends that the prosecution witnesses are interested and related, therefore, their evidence has lost its sanctity and the conviction cannot be based upon it. Contends that the prosecution has not been able to prove motive as alleged, which causes serious dent in the prosecution case. Lastly contends that the impugned judgment passed by the learned High Court is the result of mis-reading of the evidence, therefore, the same may be set at naught. 5. On the other hand, learned Law Officer assisted by learned counsel for the complainant vehemently opposed this appeal on the ground that the eye-witnesses had no enmity with the appellant to falsely implicate him in this case. It has been contended that the eye-witnesses have reasonably explained their presence at the spot at the relevant time, which is quite natural and probable and the medical evidence is also in line with the ocular account, therefore, the appellant does not deserve any leniency from this Court. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. A bare perusal of the record shows that the unfortunate incident, wherein the brother of the complainant lost his life, took place on 21.08.2009 at 4.30 PM. The matter was reported to the Police and the FIR was lodged on the same day at 06.15 PM i.e. just after one hour and forty five minutes of the occurrence. Keeping in view the inter se distance between the place of occurrence and the Police Station i.e. 20 kilometer, the FIR is considered to be promptly lodged. The occurrence took place in the broad daylight whereas the parties were known to each other, therefore, there is no chance of misidentification. The ocular account in this case has been furnished by Naveed Aram Khan, complainant (PW-10) and Iftikhar Khan (PW-11). The complainant NaveS Akram was brother of the deceased while the other PW lftikhar Khan was maternal uncle (kholoo) of the deceased. Both these witnesses were residents of the same -- -p - Criminal Appeal No. 190/2020 -: 4 locality where the occurrence took place, therefore, their presence at the place of occurrence on the fateful day and time is not unnatural. These prosecution witnesses were subjected to lengthy cross-examination by the defence but nothing favourable to the appellant or adverse to the prosecution could be brought on record. Both these PWs remained consistent on each and every material point inasmuch as they made deposition according to the circumstances surfaced in this case, therefore, it can safely be concluded that the ocular account furnished by the prosecution is reliable, straightforward and confidence inspiring. The medical evidence available on the record further corroborates the ocular account so far as the nature, time, locale and impact of the injuries on the person of the deceased is concerned. Even otherwise, it is settled law that where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence. As far as the question that the prosecution witnesses are interested and related, therefore, their evidence has lost its sanctity is concerned, it is now settled that mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses. Learned counsel for the appellant could not paint out any plausible reason as to why the complainant has falsely involved the appellant in the present case and let off the real culprit, who has committed murder of his real brother. Substitution in such like cases is a rare phenomenon. During the course of proceedings, the learned counsel contended that there are material discrepancies and contradictions in the statements of the eye-witnesses but on our specific query he could not point out any major contradiction, which could shatter the case of the prosecution. It is settled law that even if there are some minor discrepancies, the same should be ignored if they do not hamper the salient features of the prosecution case. As long as the material aspects of the evidence have a ring of truth, courts should ignore minor discrepancies in the evidence. The test is whether the evidence of a witness inspires confidence. If an omission or discrepancy goes to the root of the matter, the defence can take advantage of the same. While appreciating the evidence of a witness, the approach must be whether the Criminal Appear No. 190/2020 -: 5 evidence read as a whole appears to have a ring of truth. Minor discrepancies on trivial matters not affecting the material considerations of the prosecution case ought not to prompt the courts to reject evidence in its entirety. Such minor discrepancies which do not shake the salient features of the prosecution case should be ignored. From the place of occurrence, two crime empties of .30 bore pistol were recovered. The same were sent to Forensic Science Laboratory on 26.082009 whereas the pistol recovered from the appellant was subsequently sent to FSL on 03.09.2009 much prior to the dispatch of the pistol. According to the report of the FSL, the crime empties matched with the weapon recovered from the appellant. In these circumstances, there is sufficient material available on record to sustain conviction of the appellant. However, so far as the quantum of punishment is concerned, we are of the view that the same requires consideration. According to the prosecution, on 20.08.2009 a quarrel took place between the appellant and servant of Ehsan UUah, deceased. The deceased had reprimanded the appellant and due to this grudge, the appellant committed the murder of Ehsan Ullah. The prosecution has also produced servant of the deceased namely Sher Ahmed as PW-7. In his statement, Sher Ahmed deposed that the appellant wanted him to work with him and he asked him to leave the job of the deceased. A bare perusal of the statement of the said witness reveals that the real motive of the appellant was with the said Sher AU, therefore, the actual motive to commit the murder of Ehsan Ullah remained shrouded in mystery. It is now well established that if a specific motive has been alleged by the prosecution then it is duty of the prosecution to establish the said motive through cogent and confidence inspiring evidence. Otherwise, the said motive might be considered a mitigating circumstance in favour of an accused. However, where no motive is alleged, the capital punishment can be awarded keeping in view the evidence led by the prosecution. In these circumstances, we are of the view that the penalty of death would be harsh. Consequently, while maintaining the conviction of the appellant under Section 302(b) PPC, the sentence of death is altered into imprisonment for life duly provided under the statute. The amount of Criminal Appeal No, 190/2020 IMMI compensation and the sentence in default whereof is also maintained. Benefit of Section 382-B Cr.PC. is also extended to the appellant. 7. For what has been discussed above, this appeal is partly allowed and the impugned judgment is modified as stated in the preceding paragraph. Islamabad, the 7th0f December, 2022 Approved For Reporting IrA.i.iicini

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.195-L/2017 (Against the judgment dated 17.2.2015 passed by the Lahore High Court, Lahore in Criminal Appeal No.72 of 2012 and CSR No.4- T of 2012). Tariq Shah etc. …Appellant(s) VERSUS The State etc. …Respondent(s) For the Appellant(s): Mr. Munir Ahmad Bhatti, ASC Mrs. Tasnim Amin, AOR For the State: For respondent No.2: Ch. Muhammad Mustafa, DPG Mr. Naveed Ahmad Kh., ASC Date of Hearing: 24.6.2019. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Through leave of the Court, impugned herein is High Court's judgment dated 17.2.2015 whereby appellants' convictions recorded by the trial Court have been affirmed, albeit with alternation of death penalties into imprisonment for life. 2. Appellants, namely, Tariq Shah, Makhdoom Hussain and Fayyaz Shah have been arrayed as accused alongside Saqib Shah, Husnain Shah, Abbas Shah, Aoun Shah, Ali Hassan, and Ali Hussain on the complaint of Syed Ahad Haider Shah for committing qatl-e-amd of Ghulam Abbas Lak, Sammar Ali Shah and Qamar Ali Shah besides murderous assault upon Muhammad Naveed, Muhammad Ashiq, Muhammad Adil and Shahzad, PWs at 8.45 a.m. on 12.10.2009 within the remit of Police Station Civil Lines, Faisalabad. According to the prosecution, on the fateful day, Criminal Appeal No.195-L/2017 2 arrived at the scene in two vehicles, armed with Kalashnikovs, they confronted the deceased and the injured in front of Anti-Terrorism Court, Faisalabad; Saqib Shah accused is assigned a burst to Ghulam Abbas Lak deceased; Makhdoom Shah fired upon Sammar Ali Shah and Ghulam Abbas Lak whereas Husnain Shah and Tariq Shah targeted Qamar Ali Shah and Sammar Ali Shah deceased; Tariq Shah joined the co-accused while hitting Sammar Ali Shah; Abbass Shah once again targeted Ghulam Abbas Lak while Ali Hussain Shah shot Sammar Ali Shah; fire shots by Ali Hassan hit Qamar Ali Shah; Fayyaz Hussain Shah resorted to indiscriminate firing on Muhammad Naveed whereas Aoun Shah targeted Ashiq and Muhammad Adil. A police constable on duty, namely, Muhammad Shahzad, was also caught in the line of fire; motive for the crime is previous enmity. During spot inspection, the Investigating Officer secured nine casings ejected from two types of weapons i.e. Kalashnikov and .222 caliber gun besides a .30 caliber pistol with six live bullets. 3. Before appellants' indictment, through separate trial, Saqib Shah, Husnain Raza, Ali Hassan and Ali Hussain, were acquitted from the charge. It is a common ground that Abbas Ali Shah and Aoun Shah, accused tried subsequently, were also issued a clean chit. Acquittal of the identically placed co-accused notwithstanding and despite exoneration, the appellants, however were convicted by the learned trial Court with ultimate penalty, altered into imprisonment for life vires whereof are being assailed before us. 4. An internecine feud is long raging between the two sides facing each other in and outside the courts and in this backdrop, appellants' culpability, warrants a cautious judicial scrutiny. Huge loss of lives and receipt of multiple injuries by the witnesses are confirmed by those who miraculously endured the assault; their presence at the crime scene cannot be doubted, nonetheless, whether they are telling the whole truth is an issue altogether different; while the assailants certainly desired to eliminate old adversaries, the former may not have qualms to utilize the incident to see that some heads roll. Seen from this angle, participation of a large number of accused, each armed with automatic weapon, Criminal Appeal No.195-L/2017 3 to take the victims by surprise is really intriguing; with formidable lethality of the weapons used in first strike, every single of them could conveniently engage the intended targets; wholesale participation is an uncalled for imprudence, certainly avoidable; investigative conclusions and earlier adjudications reinforce the hypothesis of a wider net and once such a possibility is reasonably contemplated, participation of each nominee would inherently be fraught with suspicion. Seizure of two types of empties during spot inspection unmistakably suggests number of assailants much less than mentioned in the crime report. There is yet another predicament facing the prosecution in the totality of circumstances; those acquitted from the charge are inexorably placed in an identical position with the present appellants. The witnesses were found unworthy of reliance; there is nothing to improve upon their credence; injuries suffered by them are not passports into the realm of truth; once rejected, evidence of prosecution's witnesses cannot be pressed into service to sustain the charge, similar on all fours. Prosecution is also failing on investigative and forensic sides. It would be unsafe to maintain the convictions without potential risk of error, therefore, by extending benefit of doubt, Criminal Appeal is allowed; impugned judgment is set aside; the appellants are acquitted from the charge and shall be released forthwith, if not required in any other case. JUDGE JUDGE Lahore, the 24th of June, 2019 Not approved for reporting Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Dost Muhammad Khan Mr. Justice Sardar Tariq Masood Criminal Appeal No. 199 of 2011 (Against the judgment dated 19.06.2009 passed by the Lahore High Court, Lahore in Criminal Appeal No. 171 of 2006 and Capital Sentence Reference No. 53-T of 2003) Dr. Irfan Iqbal …Appellant versus The State …Respondent For the appellant: Mr. Aitzaz Ahsan, Sr. ASC Mr. M. S. Khattak, AOR For the complainant: Mr. Babar Awan, Sr. ASC Raja Abdul Ghafoor, AOR For the State: Mr. Muhammad Abdul Wadood, Deputy Prosecutor-General, Punjab Date of hearing: 23.11.2016 JUDGMENT Asif Saeed Khan Khosa, J.: Dr. Irfan Iqbal appellant was booked in case FIR No. 700 registered at Police Station Ganj Mandi, District Rawalpindi on 18.12.2002 in respect of offences under sections 302, 324 and 1099, PPC and section 7 of the Anti- Terrorism Act, 1997 and after a regular trial conducted in a connected private complaint he was convicted by the trial court for an offence under section 7(a) of the Anti-Terrorism Act, 1997 and was sentenced to death and to pay a fine of Rs. 3,00,000/- or in default of payment of thereof to undergo rigorous imprisonment for Criminal Appeal No. 199 of 2011 2 one year. The appellant challenged his conviction and sentence before the Lahore High Court, Rawalpindi Bench, Rawalpindi through an appeal which was dismissed by the said Court and the connected Capital Sentence Reference was answered in the affirmative. While passing the impugned judgment the High Court had additionally convicted the appellant for an offence under section 302(b), PPC and had sentenced him to death on that score as well besides ordering him to pay compensation to the heirs of the deceased. Hence, the present appeal by leave of this Court granted on 28.04.2011. 2. While granting leave to appeal in this case this Court had clearly observed on 28.04.2011 that leave to appeal was not being granted for reconsideration of the merits of the appellant’s case but leave to appeal had been granted only to examine the following questions: “(a) Whether the learned Division Bench of the Lahore High Court was right in holding that the appellant was sentenced only under Section 7(a) ATA was convicted and sentenced under section 302(b) PPC, as reproduced hereinabove in para-5 of this order; (b) Whether in the given circumstances and submission made by the learned counsel for the petitioner case of the petitioner fall within the scope of Section 302(c) PPC; and (c) If the case of the petitioner does not fall within the scope of Section 302(c) PPC, whether the sentence of death is warranted in this case.” We have heard the learned counsel for the parties on the said aspects of the case at some length and have also perused the record with their assistance. 3. As regards the first question referred to in the leave granting order we have straightaway observed that no charge had been framed by the trial court against the appellant in respect of an offence under section 302(b), PPC, no conviction of the appellant had been recorded by the trial court for the offence under section 302(b), PPC, no appeal or revision petition had been filed by the Criminal Appeal No. 199 of 2011 3 State or the complainant party before the High Court seeking conviction of the appellant for the offence under section 302(b), PPC and admittedly no notice had been issued by the High Court to the appellant before convicting and sentencing him for the offence under section 302(b), PPC. The provisions of section 423(1)(b), Cr.P.C. clearly show that a sentence passed against a convict cannot be enhanced by a court hearing an appeal against conviction and if at all while hearing such an appeal the Court is minded to enhance the convict’s sentence then the Court can exercise its revisional jurisdiction but in exercise of revisional jurisdiction no sentence of a convict can be enhanced without notice to him as is evident from the provisions of subsections (2) and (6) of section 439, Cr.P.C. Admittedly no such notice had been issued by the High Court to the appellant. In this view of the matter while answering question No. 1 in the leave granting order we hold that the High Court was not justified in this case in additionally convicting and sentencing the appellant for the offence under section 302(b), PPC while hearing the appellant’s appeal against conviction. 4. Question No. 2 in the leave granting order is about applicability or otherwise of the provisions of section 302(c), PPC to the case in hand and in that context we may observe that it has been clarified by this Court in the case of Zahid Rehman v. The State (PLD 2015 SC 77) that the provisions of section 302(c), PPC stand attracted to the cases falling in the Exceptions to the erstwhile provisions of section 300, PPC. In this context the Exception that came closest to the facts of the present case was Exception 1 which dealt with cases of grave and sudden provocation and we have noticed that in the case in hand there might have been grave provocation offered to the accused party by Waseem Hassan deceased and his injured brother namely Asim Hassan but at the time of commission of the alleged murder the said provocation had no longer remained sudden. According to the facts of this case after the appellant’s brother namely Nasir Iqbal had been fired at and critically injured by Waseem Hassan Criminal Appeal No. 199 of 2011 4 deceased and his brother namely Asim Hassan inside the house of the appellant and his family in which incident both Waseem Hassan deceased of the present case and his brother namely Asim Hassan had also received injuries the deceased and his injured brother had been removed to a hospital for treatment and the present occurrence had taken place inside that hospital when the appellant and his father had gone to the said hospital and had then caused injuries to Waseem Hassan deceased and his brother namely Asim Hassan. It is, thus, evident that the case in hand was not a case of an immediate response by the accused party to the violence committed or provocation offered by the members of the complainant party and there was a gap of time between the two incidents. We have, therefore, entertained no manner of doubt that the present occurrence was a direct result of the grave provocation offered by the complainant party but such provocation was no longer sudden at the time of the present occurrence and, thus, Exception 1 to the erstwhile provisions of section 300, PPC did not stand attracted in its entirety and, therefore, the case in hand did not fall squarely within the ambit of section 302(c), PPC. 5. The third question mentioned in the leave granting order pertains to availability or otherwise of any mitigating circumstance for the purpose of reduction of the appellant’s sentence of death to imprisonment for life. In the said context the facts of the case show that even according to the case of the prosecution itself the appellant had reached the place of occurrence, i.e. the relevant hospital in the company of his father namely Sheikh Muhammad Iqbal and at that time the appellant was empty-handed whereas the appellant’s father carried a revolver with him. The FIR as well as the statements of the eyewitnesses made before the trial court clearly show that it was the appellant’s father who had handed over the revolver to the appellant at the spot with a command that the appellant should spare none from the complainant party. It is evident from such facts asserted by the prosecution that at the time of the present occurrence the appellant was acting under the influence of his father. Apart from that it has already been Criminal Appeal No. 199 of 2011 5 observed by us while attending to question No. 2 in the leave granting order that the case in hand has been found by us to be a case of grave provocation offered by the complainant party to the appellant and the other members of his family but the element of suddenness in such provocation was missing so as to completely attract Exception 1 to the erstwhile provisions of section 300, PPC. In a somewhat similar backdrop this Court had observed in the case of Ghulam Abbas v. Mazher Abbas and another (PLD 1991 SC 1059) as follows: “It has been ruled in a number of cases by the superior Courts that in case some of the conditions in the exceptions to section 300, P.P.C. are substantially satisfied but others are not then the least that the Court can do in such a difficult situation is that it may award lesser sentence but under the charge of murder; because, for acquittal from that charge and conviction for the lesser offence under section 304, Part I, P.P.C., all the conditions of an exception must be satisfied.” (underlining has been supplied for emphasis) Following the principle laid down in the above mentioned precedent case and also keeping in view the conclusion reached by us that the appellant had acted at the relevant time under the influence of his father we have felt persuaded to reduce the sentence of death passed against the appellant to imprisonment for life on the charge under section 7(a) of the Anti-Terrorism Act, 1997. 6. For what has been discussed above this appeal is dismissed to the extent of the appellant’s conviction for the offence under section 7(a) of the Anti-Terrorism Act, 1997, his sentence passed for the said offence is reduced from death to imprisonment for life and his conviction and sentence for the offence under section 302(b), PPC are set aside. The order passed by the trial court in respect of payment of fine by the appellant as well as the order passed in respect of imprisonment in default of payment of fine are, however, maintained. The benefit under section 382-B, Cr.P.C. Criminal Appeal No. 199 of 2011 6 shall be extended to the appellant. This appeal is disposed of in these terms. Judge Judge Judge Islamabad 23.11.2016 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mian Saqib Nisar Mr. Justice Asif Saeed Khan Khosa Mr. Justice Sh. Azmat Saeed Mr. Justice Iqbal Hameedur Rahman Mr. Justice Dost Muhammad Khan Criminal Appeal No. 19 of 2012 (Against the order dated 05.07.2011 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No. 7821-B of 2011) Sarwar, etc. … Appellants versus The State, etc. … Respondents Criminal Appeal No. 32-L of 2012 (Against the order dated 08.03.2012 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No. 470-B of 2012) Iftikhar Ahmed … Appellant versus The State, etc. … Respondents Criminal Appeal No. 82 of 2014 (Against the order dated 23.12.2013 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Miscellaneous No. 1783-B of 2013) Nadeem Khan … Appellant versus The State, etc. … Respondents Criminal Petition No. 397 of 2013 (Against the order dated 30.09.2013 passed by the Lahore High Court, Multan Bench, Multan in Criminal Miscellaneous No. 2088-B of 2013) Shaukat Ali … Petitioner versus The State, etc. … Respondents Criminal Petition No. 455 of 2013 (Against the order dated 10.09.2013 passed by the Lahore High Court, Multan Bench, Multan in Criminal Miscellaneous No. 2619-B of 2013) Mukhtiar Hussain … Petitioner versus Allah Ditta, etc. … Respondents Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 2 For the appellants: Mr. Azam Nazir Tarar, ASC with appellants No. 3 to 5 in person (in Cr. A. 19 of 2012) Mr. Azam Nazir Tarar, ASC with the appellant in person (in Cr. A. 32-L of 2012) Mr. Ansar Nawaz Mirza, ASC With the appellant in person (in Cr. A. 82 of 2014) For the petitioners: In person. (in Cr. P. 397 of 2013) Nemo. (in Cr. P. 455 of 2013) For the complainant: Mian Muhammad Shafiq Bhandara, ASC (in Cr. A. 19 of 2012) Raja Abdul Rehman, ASC Syed Ali Imran, ASC (in Cr. A. 32-L of 2012) Nemo. (in Cr. A. 82 of 2014) Mr. Nazir Ahmed Bhutta, ASC (in Cr. P. 397 of 2013) N.R. (in Cr. P. 455 of 2013) For the State: Mr. Asjad Javaid Ghural, Additional Prosecutor-General, Punjab Ch. Abdul Waheed, Additional Prosecutor- General, Punjab (in all cases) Date of hearing: 29.09.2014 JUDGMENT Asif Saeed Khan Khosa, J.: The question as to whether after having been summoned by a trial court under section 204, Cr.P.C. to face a trial in connection with a private complaint the person so summoned is required only to furnish a bond, with or without sureties, under section 91, Cr.P.C. for his future appearance before the trial court or he is to apply for pre-arrest bail under section 498, Cr.P.C. is a question which has remained a subject of some controversy in the past and, therefore, on 20.01.2012 this Court had granted leave to appeal in some of the present matters so that the issue may be conclusively resolved through an authoritative pronouncement. The leave granting order (reported as 2012 SCMR 1912) passed by a 5-member Bench of this Court reads as follows: Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 3 “The question involved in these petitions is as to whether upon his summoning by a trial Court in a case arising out of a private complaint an accused person needs to apply for bail in terms of sections 496, 497 and 498, Cr.P.C. or in such a situation he is only to submit a bond for his appearance before the trial Court under section 91, Cr.P.C. It appears that in different judgments different notes have been struck by this Court on the subject and a reference in this respect may be made to the cases of Syed Muhammad Firdaus and others v. The State (2005 SCMR 784), Luqman Ali v. Hazaro and another (2010 SCMR 611) and Criminal Appeal No. 56 of 1986 (Raham Dad v. Syed Mazhar Hussain Shah) decided by this Court on 14-1-1987). At different times different High Courts had also rendered conflicting judgments on the issue. It is, therefore, imperative that such conflicts should be removed or resolved at the earliest so as to restore certainty in the matter for the guidance of all the courts in the country. In this view of the matter leave to appeal is granted in both these petitions and the Office is directed to fix the appeals for regular hearing at the earliest possible, preferably within a period of one month. The petitioners in Criminal Petition No. 549-L of 2011 have already been admitted to ad-interim pre-arrest bail by this Court vide order dated 11-8-2011. Their ad-interim pre-arrest bail shall continue till the next date of hearing.” 2. In view of the legal controversy at hand we have deemed it appropriate to resolve the legal issue first and then to leave the present appeals and petitions to be decided by appropriate Benches of this Court on the basis of their respective merits in the light of the law declared through the present judgment. 3. We have heard the learned counsel for the parties, some of the parties appearing in person and the learned Additional Prosecutors- General, Punjab appearing for the State at some length and have also attended to and perused the statutory provisions and the precedent cases referred to and relied upon by them in support of their respective submissions. 4. For a proper resolution of the legal question involved it may be advantageous to reproduce the following legal provisions of the Code of Criminal Procedure, 1898 relevant to the issue: 91. Power to take bond for appearance. When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court. 204. Issue of process. (1) If in the opinion of a Court taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be one in which, according to the fourth Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 4 column of the Second Schedule, a summons should issue in the first instance, it shall issue its summons for the attendance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first instance, it may issue a warrant, or, if it thinks fit, a summons for causing the accused to be brought or to appear at a certain time before such Court or if it has no jurisdiction itself some other Court having jurisdiction. ------------- -------- 496. In what cases bail to be taken. When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such Court to give bail, such person shall be released on bail: Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided: Provided further that nothing in this section shall be deemed to affect the provisions of section 107, sub-section (4), or section 117, sub-section (3). 497. When bail may be taken in case of non-bailable offence. (1) When any person accused of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years: ----------------- ---- (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided. --------------------- 498. Power to direct admission to bail or reduction of bail. The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive; and the High Court or Court of Session may, in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail, or that the bail required by a police officer or Magistrate be reduced. 498-A. No bail to be granted to a person not in custody, in Court or against whom no case is registered, etc. Nothing in section 497 or section 498 shall be deemed to require or authorize a Court to release on bail, or to direct to be admitted to bail, any person who is not in custody or is not present in Court or against whom no case stands registered for the time being and an order for the release of a person on bail, or a direction that a person be admitted to bail, shall be effective only in respect of the case that so stands registered against him and is specified in the order or direction. Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 5 5. Before embarking upon any discussion on the legal issue involved in these matters it may also be useful to refer to all the reported cases on both sides of the legal divide. The reported cases on the subject can be divided into two categories, the first category of cases is that wherein it was held that after having been summoned by a trial court to face a trial in connection with a private complaint the person so summoned is required only to furnish a bond, with or without sureties, under section 91, Cr.P.C. for his future appearance before the trial court and in the second category of cases it was held that such person is to apply for pre-arrest bail under section 498, Cr.P.C. failing which he is to be taken into custody and lodged in jail. 6. In the first category of cases, i.e., the category of cases wherein it was held that after having been summoned by a trial court to face a trial in connection with a private complaint the person so summoned is required only to furnish a bond, with or without sureties, under section 91, Cr.P.C. for his future appearance before the trial court the pioneering and groundbreaking case was the case of Mazhar Hussain Shah v. The State (1986 P.Cr.L.J. 2359). In that case while seized of a private complaint a Sessions Judge recorded the statement of the complainant and the evidence produced at the preliminary stage and then issued process against the accused persons under section 204, Cr.P.C. In response to the summonses issued by the Sessions Judge the accused persons appeared before the Sessions Judge and filed applications for pre-arrest bail but the same were dismissed by the Sessions Judge with the observation that it was not a fit case for pre- arrest bail. The accused persons then approached the Lahore High Court, Lahore for the desired relief and Muhammad Rafiq Tarar, J. admitted the said accused persons to pre-arrest bail and observed as follows: “3. Section 204, Cr.P.C. provides that if the Court taking cognizance of an offence is of the opinion that there is sufficient ground for proceeding, it shall issue a summons if the case appears to be one in which, according to the fourth column of the Second Schedule, summons should issue in the first instance but if the case appears to be one in which according to that column, a warrant should issue in the first instance, it may issue a warrant, or, if it thinks fit, a summons, for causing the accused to be brought or to Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 6 appear before it. According to fourth column a warrant should ordinarily issue in the first instance in a case under section 302, P.P.C. but in this case the Court chose to issue a summons. Section 91, Cr.P.C. lays down that when any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court. Under this section a bond with or without sureties may be taken from an accused person or from a witness for his appearance. The learned Sessions Judge was empowered to issue warrant or summons for causing the accused to be brought to or appear before him and exercising that power he issued summons to the petitioners in response to which they appeared before him. He was, therefore, required to proceed under section 91, Cr.P.C., and to direct them to execute bonds with or without sureties for their appearance in Court. This section by necessary implication also empowers the Court to commit the person present in Court to custody if he fails to give security for his attendance. It is nobody's case that the petitioners were asked to execute bond and they had failed to do so. Process is issued to the accused when the Court taking cognizance of the offence is of the opinion that there is sufficient ground for proceeding. Such opinion is not to be equated with the existence of reasonable ground for believing that the accused was guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. In the circumstances, I feel inclined to the view that the petitioners are entitled to bail. The interim bail is, therefore, confirmed.” Admission of Syed Mazhar Hussain Shah accused to pre-arrest bail by the Lahore High Court, Lahore in that case was challenged by Reham Dad complainant before this Court through Criminal Appeal No. 56 of 1986 but that appeal was dismissed by a 3-member Bench of this Court through its judgment dated 14.01.1987. The said judgment had not been published in any law report or journal and, therefore, the same is being reproduced here in full: “IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESEMT Mr. Justice Dr. Nasim Hasan Shah Mr. Justice Ali Hussain Qazilbash Mr. Justice Saad Saood Jan Cr. A. No. 56/86. (On appeal from the order dated 7.12.1985 of the Lahore High Court, Lahore in Cr. Misc. No. 2807/B of 1985) Reham Dad s/o Muhammad Bakhsh. ….Appellant Vs. Syed Mazhar Hussain Shah & others. …Respondents Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 7 For the appellant: Ch. Muhammad Abdul Wahid, Sr. ASC Mr. Mahmood A. Qureshi, AOR (absent) For respondents 1-17: Mr. Nemat Khan, ASC Ch. Mehdi Khan Mehtab, AOR {absent) For the State: Mr. M. Nawaz Abbasi, Asstt. A.G. Pb. Rao Muhammad Yousuf Khan, AOR Date of hearing: 14.1.1987 JUDGMENT Ali Hussain Qazilbash J.- This appeal arises out of the order of a learned Single Judge of the Lahore High Court dated 7.12.1985 whereby the respondents were allowed bail before their arrest. 2. The facts are that Syed Mazhar Hussain Shah, Head Constable (Incharge) Proclaimed Offenders Staff, Gujrat and 8 other constables as well as 8 private persons are accused in a complaint case by the appellant Rahim Dad for the murder of his two sons namely Muhammad Azam, Muhammad Azhar and one Noor Hussain under sections 120-B, 148, 302 and 109/149 PPC. It was complained by the appellant that in pursuance of a conspiracy the respondents committed the crime under the sections given above on 23.12.1983. As police officials were involved in the case, it was given a colour of police encounter and lot of public attention was attracted to the case. No case, however, could be registered with the police, therefore, the appellant filed a complaint on 18.7.1984. A judicial inquiry was made in the matter by Mr. Muhammad Musa Khan, Magistrate 1st Class, Gujrat in which the respondents were found guilty but in another inquiry conducted by the Assistant Commissioner, Mandi Bahau Din, the police officials, accused in the complaint were exonerated and therefore the complaint was lodged. The complaint came up before a learned Sessions Judge, Gujrat who proceeded under section 204 of the Cr.P.C., recorded preliminary evidence and issued process against the respondents on 17.7.1985. In response to the summons issued by the learned Sessions Judge, the respondents appeared in Court moved application for bail before arrest. Relying on the provisions of sections 90 and 91 Cr.P.C., the learned Sessions Judge rejected the bail application on 29.10.1985 holding that there were grounds for proceeding further in the matter. The respondents then moved in the High Court their bail before arrest through Cr. Misc. No. 2807-B of 1985 on 12.11.1985 which came up for hearing before Mr. Justice Muhammad Rafiq the same day, who admitted the respondents to interim bail and then on 7.12.1985 confirmed the bail through the impugned order, hence the present appeal. 3. We have heard the learned counsel for the parties and have gone through the orders of the Courts below. The learned Single Judge while allowing bail to the respondents has observed, “The learned Sessions Judge was empowered to issue warrants or summons for causing the accused to be brought or to appear before him and exercising that power he issued summons to the petitioners in response to which they appeared before him. He was, therefore, required to proceed under section 91 Cr.P.C. and to direct them to execute bonds with or without sureties for their appearance in the Court. The section, by necessary implication also empowers the Court to commit the person present in the Court to custody if he fails to give security for his attendance. Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 8 Process is issued to the accused when the Court taking cognizance of the offence is of the opinion that there is sufficient ground for proceeding. Such opinion is not to be equated with the existence of reasonable ground for believing that the accused was guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years.” 4. We have considered the arguments of the learned counsel for the parties in the light of the above observation and we are of the view that the learned Single Judge was justified in admitting the respondents to bail. His findings are unexceptionable and need no interference. This appeal fails and is hereby dismissed.” 7. The ratio of the case of Mazhar Hussain Shah (supra) was subsequently referred to and followed by Khalid Paul Khawaja, J. of the Lahore High Court, Lahore in the case of Maqbool Ahmad and another v. The State and another (1997 P.Cr.L.J. 1074) wherein it was observed as follows: “13. Admittedly the petitioners are accused persons in a private complaint. After the issuance of a process against them under section 204, Cr.P.C. when they had put in appearance before the trial Court the learned Sessions Judge should have acted in accordance with the provisions of section 91, Cr.P.C. which reads as follows:-- "When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court.” It has been held in Mazhar Hussain Shah v. The State 1986 PCr.LJ 2359 (Lahore) that after appearance of the accused in Court in pursuance of a process issued under section 204, Cr.P.C. the trial Court was required to proceed under section 91, Cr.P.C. and to direct the accused to execute bonds with or without sureties for appearance in Court. Admittedly in the present case the accused petitioners were not asked to execute bonds. This was a lapse on the part of the learned trial Court which militates against the law laid down by Superior Courts. In my opinion the learned Sessions Judge should have asked the petitioners to execute bonds for their appearance even if they had been summoned through non-bailable warrants of arrest. 14. From the dictum laid down in the aforecited Mazhar Hussain Shah's case it emanates that the learned Sessions Judge had wrongly proceeded to consider that the petitioners had applied for their pre- arrest bail. In the aforecited case the facts are identical to the present case. A few Police Officers were summoned in a private complaint under sections 120-B, 148, 302, 109 and 149, P.P.C. They appeared before the trial Court and moved applications for bail. The Court treated the said applications as applications for pre-arrest bail and dismissed them. It was held that the observation of the learned trial Court that it was case of pre-arrest bail was misconceived and the accused were found to be entitled to bail. It was further held that existence of sufficient grounds for proceedings in a complaint case could not be equated with the existence of reasonable grounds that the accused was guilty of an offence punishable with death or imprisonment for ten years. In this view of the matter the present Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 9 applications, in stricto senso, could not be considered to be applications for pre-arrest bail and, therefore, the contention that the petitioners had not alleged mala fides was irrelevant. 15. In view of what has been stated above the interim bail granted to Maqbool Ahmad, Babu Muhammad Ishaque, Master Asif, Akhtar and Muhammad Nawaz petitioners is confirmed while Muhammad Aslam petitioner in Criminal Miscellaneous No. 5357/B of 1997 is required to execute a bail bond in the sum of Rs. 20,000 with one surety in the like amount to the satisfaction of the learned trial Court.” 8. The legal position declared in the case of Mazhar Hussain Shah (supra) was also expressly referred to and relied upon by Kh. Muhammad Sharif, J. of the Lahore High Court, Lahore in the later case of M. Siddique v. Rehmat and others (PLJ 2001 Cr.C. (Lahore) 251) and it was held in that case as under: “Through this Criminal Revision learned counsel for the petitioner has challenged the order of learned Addl. Sessions Judge, Sheikhupura dated 2.10.2000, whereby, the said learned Addl. Sessions Judge in a complaint case after summoning the respondent, through summons directed them to file bail bonds in the sum of Rs. 50,000/-. He submits that in the peculiar circumstances of the case when younger son of the complainant has been murdered by the respondents and police with mala fide intention had cancelled the case, the Court in the first instance should have issued non-bailable warrants, that Section 204, Cr.P.C. should be read with Section 497 Cr.P.C. alongwith Section 91, Cr.P.C. He has also relied upon PLD 1992 Lahore 444, and 1987 P.Cr.L.J. 532 & 1897. 2. I have heard learned counsel for the petitioner at a great length and have also gone through Sections 204, 497 and 91 Cr.P.C. As far as, Section 497 Cr.P.C. is concerned, the same is reproduced below: 497. When bail may be taken in cases of non- bailable offence--(1) When any person accused of non- bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or (imprisonment) for life or imprisonment for 10 years.” 2. In Section 497, Cr.P.C. The word used by the statute is that when any accused person of non-bailable offence is arrested or detained without warrant by any officer-in-charge of Police Station, or appears or is brought before a Court. In my humble opinion, the words give the meaning that the persons who has been summoned or himself surrenders before the Court, he may be released on bail but he shall not be so released if there appear reasonable grounds for believing that he is guilty of an offence punishable with death or (imprisonment) for life or imprisonment for 10 years. Moreover, the same matter was also examined by this Court while deciding the case of Mazhar Hussain Shah vs. The State, reported in 1986 P.Cr.L.J. 2359, wherein it was held that: Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 10 “Process is issued to the accused when the Court taking cognizable of the offence is of the opinion that there is sufficient ground for proceeding. Such opinion is not to be equated with the existence of reasonable ground for believing that the accused was guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years.” 3. In the instant case, FIR was registered against the respondents but no challan was submitted in the Court, thereafter, complaint was filed. After recording preliminary evidence, Court came to the conclusion that prima facie case was made out, summons were issued against the respondents and in response to the summons they appeared before the Court and they were directed by Court to file bail bonds in the sum of Rs. 50,000/-. No illegality has been committed by learned Addl. Sessions Judge, Sheikhupura. The judgments cited by learned counsel for the petitioner are not applicable in the instant case and particularly, in a judgment that is, 1987 P.Cr.L.J. 532, it was held by his Lordship that investigation in that case was biased one which is not here in this case. This practice of summoning the accused through bailable warrants is going on for the last so many years. It is based on good reasoning and interpretation of the statute. No case for interference is made out, therefore, this petition is dismissed in limine.” 9. Subsequently in the case of Ghulam Abbas v. State (PLJ 2005 Cr.C. (Lahore) 72) while dealing with an application for suspension of sentence and bail after conviction in a case arising out of a private complaint Ch. Iftikhar Hussain, J. of the Lahore High Court, Lahore had observed as follows: “7. The contention that he may be released on bail by suspending his sentence by taking bond from him for appearance according to the spirit of Section 91, Cr.P.C. is absolutely misconceived. It is because of the fact that the object of that provision of law is only to secure the attendance/appearance of a person, whose presence may be required by Court in relation to some matter before it. The position in the case of the applicant is altogether different inasmuch as that he after due appreciation of the evidence available on the record was found guilty of the charge of Qatal-e-Amd of the deceased and was convicted and sentenced as mentioned above. So, the provision of Section 91, Cr.P.C. cannot be attracted in his case for suspending his sentence and release on bail.” 10. Later on in the case of Syed Muhammad Firdaus and others v. The State (2005 SCMR 784) a 3-member Bench of this Court approvingly referred to the case of Mazhar Hussain Shah (supra) and held as already held by this Court in the above mentioned unreported case of Reham Dad (supra). The relevant observations made by this Court are reproduced below: “A perusal of above order indicates that prima facie, learned Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 11 trial Court failed to take into consideration that the case of petitioners Raja Munawar Hussain, Amjad Javed Saleemi is also at par with the case of Dr. Muhammad Azam, therefore, they have also not been summoned and once the Court decided to proceed against them, then their bail should have not been cancelled, as they were liable to be dealt with under section 91, Cr.P.C. in view of the judgment in the case of Mazhar Hussain Shah v. The State 1986 PCr.LJ 2359.” 11. The next was the case of Muhammad Ijaz v. Nadeem and 3 others (PLD 2006 Lahore 227) wherein Syed Shabbar Raza Rizvi, J. of the Lahore High Court, Lahore noticed the judgment passed by this Court in the case of Syed Muhammad Firdaus (supra) and went on to add as follows: “Section 88 of the Code of Criminal Procedure, 1973 (India) is verbatim in language to section 91, Cr.P.C. For convenience, it is reproduced hereunder:-- "When any person of whose appearance or arrest the officer presiding in any Court is empowered to issue summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court or any other Court to which the case may be transferred for trial." The purpose of this section is to ensure or demand presence of such person who is directed by the Court to execute the bonds. For the same reasons, these provisions are applicable to a person who is present in Court and is free. If a person is already under arrest and in custody, provisions of section 91, Cr.P.C. are not applicable. In this regard, two judgments from Indian jurisdiction are referred; Ajit Singh v. State AIR 1970 Dehli 155 and Madhu Umaye v. S.D.M. 1971 1.Cr.L.J. 1720 and AIR 1971 SC 2486.” 12. The last case of this category of cases was the case of Muhammad Yasin v. The State and another (2008 YLR 2197) decided by Malik Saeed Ejaz, J. of the Lahore High Court, Lahore and it was held in that case as under: “12. In the instant case, the petitioner was declared innocent in the investigation and police case against him has been filed as "Untraced". Resultantly, in private complaint regarding the same occurrence, process under section 204, Cr.P.C. was issued by the learned trial Court and the petitioner was directed to appear to face trial in the instant complaint. When the accused appeared in response to issuance of such process, the learned trial Court instead of directing him to execute bonds with or without surety by following the provisions of section 91, Cr.P.C., rejected the request of bail of the petitioner and sent him behind the bars. 13. The case-law cited by the learned counsel for the petitioner is very much applicable in the instant case. I would like to reproduce the relevant extracts of the same. In the case reported as 2005 SCMR Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 12 784 it is held that "Once the Court decided to proceed against them (accused), then their bail should have not been cancelled as they were liable to be dealt with under section 91, Cr.P.C." In the case cited as 1997 P.Cr.L.J. 1074 it is observed that "Admittedly the petitioners are accused persons in a private complaint. After the issuance of a process against them under section 204, Cr.P.C. when they had put in appearance before the trial Court the learned Sessions Judge should have acted in accordance with the provisions of section 91, Cr.P.C." Similarly in case published as 1986 P.Cr.L.J. 2359 in its head-note it is held that "In response to summons issued by trial Court in a private complaint accused persons appearing before trial Court and moving for bail which was refused --- After appearance of accused in Court, trial Court, held, was required to proceed under S. 91, Cr.P.C. and to direct accused to execute bonds with or without sureties for appearance in Court --- As accused were not asked to execute bond they could not be said to have failed to do so --- Observations of trial Court that case was of pre-arrest bail was found to be misconceived and accused were found to be entitled to bail in circumstances." 14. In these circumstances, I am of the considered view that the learned trial Court has not followed the prescribed procedure of law as laid down under section 204, Cr.P.C. read with section 91, Cr.P.C. but on the other hand the learned trial Court had decided the bail petition of the petitioner by touching the merits of the case, while interpreting the provisions of section 204, Cr.P.C. read with section 91, Cr.P.C. in the light of above cited judgments, I am of the considered view that the merits of the case are not required to be touched at the time of deciding bail petition in a private complaint, therefore, the impugned order dated 16-4-2007 passed by the learned Additional Sessions Judge, Khanewal, is not sustainable, hence, the same is set aside. 15. Keeping in view the facts and circumstances of the case and relying upon the above referred judgments, I have no option but to admit the petitioner to bail merely on technical grounds by following the provisions of section 204, Cr.P.C. read with section 91, Cr.P.C. to release him on bail by directing to submit bail bonds in the sum of Rupees Five Lac (Rs. 5,00,000), with two sureties, each in the like amount, to the satisfaction of the trial Court.” 13. The first reported case falling in the second category of cases wherein it was held that a person summoned to face a trial in connection with a private complaint is to apply for pre-arrest bail under section 498, Cr.P.C. was the case of Wazir Khan and another v. The State (1987 P.Cr.L.J. 532). In that case Rustam S. Sidhwa, J. of the Lahore High Court, Lahore did not discuss the legal position in respect of the issue at hand at all and proceeded upon an assumption that in such a case the person concerned is to apply for pre-arrest bail. In the later case of Sajjad Hussain alias Basara v. Faqir Muhammad and another (1987 P.Cr.L.J. 1898) decided by Qurban Sadiq Ikram, J. of the Lahore High Court, Lahore the position was again the same. Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 13 14. In the subsequent case of Malik Anjum Farooq Paracha v. Manzur-ul-Haq and 5 others (PLD 1992 Lahore 444) Tanvir Ahmad Khan, J. of the Lahore High Court, Lahore also proceeded under the same assumption and without any discussion regarding the legal issue at hand held as under: “I have considered the contentions. I must observe at the very outset that the role of the Investigating Agency is highly questionable in this case. The stance taken by the S.P. Crime Branch who is present in Court is that once the investigation of a case is entrusted to the Crime Branch, the accused named therein would not be arrested unless and until the investigation is finalized and its approval is accorded by the Inspector-General of Police. He has stated that though there are no such written instructions or rules but this procedure is based upon prevailing practice. It is strange enough that in this broad daylight occurrence in the premises of the Court in which one person lost his life and two persons were brutally injured; the F.I.R. was promptly recorded; the prearrest bail of respondents Nos. 1 to 5 was not confirmed by the learned Additional Sessions Judge Mr. Mazhar Hussain Minhas on the 22nd of December, 1991 the police functionaries did not apprehend the accused/respondents. If this practice is not arrested and is allowed to continue, then an accused of' any serious crime, can successfully avoid arrest by arranging the investigation through Crime Branch and frustrate a judicial order. Inspector-General of Police, Punjab is to take serious note of this practice. Subsequent to this attitude of the Crime Branch, on a complaint filed by the petitioner on the similar facts, Mr. Ata Rasool Joya, Additional Sessions Judge issued process after being fully satisfied from the preliminary evidence recorded by him that a case of section 302, P.P.C. is made out. He issued non-bailable warrants of the respondents and instead of keeping his hand away as it was brought to his notice that the earlier pre-arrest bail application on similar facts was disallowed by Mr. Mazhar Hussain Minhas, Additional Sessions Judge, he allowed the execution of bail bonds through his order dated 7-5-1992. The proper procedure for him was to refer the matter to the learned Sessions Judge, Rawalpindi for an appropriate order. Instead of doing the same he in a mechanical manner directed the respondents to execute the bail bonds without noticing and considering the conditions for grant of bail under section 497, Cr.P.C. This exercise of power on his part is clearly in violation of the rule laid down in Zubair's case PLD 1986 SC 173 wherein it has been specifically held that in the same case (or in the cross-case) successive bail application has to be heard by the same Court. In the case in hand the facts of F.I.R. No. 488 and that of a complaint are completely similar. Respondents were earlier held by Mr. Mazhar Hussain Minhas, Addl. Sessions Judge not entitled to the concession of bail as according to him there appears reasonable ground for believing that they have been guilty of an offence punishable with death or imprisonment for life or for 10 years. Keeping all the facts and circumstances of the case into consideration, the concession granted to the respondents Nos. 1 to 5 by allowing them to submit their bail bonds is hereby recalled and it is directed that they shall be arrested forthwith. Office is directed to transmit this order to the S.S.P., Rawalpindi for compliance. A copy of this order shall also be sent to the Inspector-General of Police, Punjab.” Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 14 15. The later case of Noor Nabi and 3 others v. The State (2005 P.Cr.L.J. 505) holds the same foundational distinction in the second category of cases on the subject under discussion as is held by the case of Mazhar Hussain Shah (supra) in the first category of cases. In the case of Noor Nabi Rahmat Hussain Jafferi, J. of the High Court of Sindh, Karachi had undertaken a detailed analysis of the scheme of things in the Code of Criminal Procedure and had held as follows: “I have given due consideration to the arguments and have gone through the material available on the record very carefully. On the earlier dates, the counsel for the applicants got the matter adjourned to produce the order by which the applicants were granted bail in direct complaint case. The counsel for the applicants did not produce the bail order on the ground that no such order was passed but produced the affidavit of surety which was accepted by the trial Court on 12-8-2002 and released the accused. I have gone through the contents of direct complaint and the F.I.R. I find that the facts are same, the accused are also same. It appears that the direct complaint was filed because the police did not arrest the applicants even after lodging the F.I.R. In the direct complaint, the process was issued against the applicants and other co-accused persons in the shape of bailable warrants as required under fourth column of Schedule-II attached to the Cr.P.C. In pursuance of the B.Ws. the accused appeared before the Court but the Court released them on executing bond with surety without passing any order granting bail to them as required under section 497, Cr.P.C. Important question has been raised in this application as to whether the Court issuing process under section 204, Cr.P.C. in a direct complaint, is required to release the accused merely on bond as required under section 91 of Cr.P.C. or a bail is to be granted within the meaning of section 497, Cr.P.C., when the accused involved in non-bailable case appeared before the Court issuing the process against them. In the case of Mazahar Hussain Shah v. State reported in 1986 PCr.LJ 2359, it has been observed that in a case of private complaint when the accused appear before the Court in pursuance of process issued against him under section 204, Cr.P.C. then the accused is simply required to execute a bond with or without surety for their appearance as provided under section 91, Cr.P.C. With utmost respect to the Honourable Judge, I am unable to agree with the said proposition because of following reasons:-- This point can be properly appreciated if the scheme of Criminal Procedure Code is examined relating to the institution of case, issuing of process and ultimately trial. A perusal of Criminal Procedure Code reveals that it is divided into parts, which are divided in Chapters and that are again sub-divided in sub-chapters. The parts, chapters and sub-chapters have been given headings to emphasis subject on which they deal. Some of the subjects are general in nature. Some of the subjects are special, contain special provisions to deal with special situation and some of the subjects are supplementary, contain supplementary Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 15 provisions to add, supplies deficiency, fill need, give further information to other provisions. This scheme of the Code may be kept in view, to understand the further discussions. If an offence is committed then the aggrieved party may file report before an officer of police station within the meaning of section 154, Cr.P.C. or file a direct complaint before the competent Court under section 200, Cr.P.C. or the Magistrate on his own information comes to know about the commission of offence. Basically there are three stages in a case:-- (1) Institution of proceedings, (2) Commencement of the proceedings before the Court and (3) Trial. Conditions requisite for initiating proceedings are dealt with in sub-chapter "B" of Chapter XV of Part VI of Cr.P.C. Part-VI of the Code deals with "proceedings in prosecutions". It has 17 Chapters; starting from Chapters XV to XXXIII. For the purpose of present proceedings, Chapters XV, XVI, XVII and XX are material. Chapter XV is divided into two sub-chapters "A" and "B". Sub-chapter "A" deals with "place of enquiry or trial". Sub-chapter "B" deals with "conditions requisite for initiation of proceedings". Chapter XVI deals with "of complaints to Magistrates", Chapter XVII deals with "of the commencement of proceedings before Court", Chapters XX, XXII and XXII-A deal with "trial before Magistrates, summary trials and trials before High Court and Court of Session" respectively. Sub-chapter "B" of Chapter XV "conditions requisite for initiation of proceedings" of Part VI of the Code is spread into 15 sections starting from sections 190 to 199-B. One of the conditions requisite for initiation of proceedings is of taking cognizance by the Magistrate on a police report (section 173, Cr.P.C.), 2. on a direct complaint constituting the facts of offence when the complaint is filed under section 200, Cr.P.C. and 3. on information received from any person other than Police Officer or upon Magistrate's own knowledge or suspicion. Under section 190, Cr.P.C. the proceedings of a case start by taking cognizance, on the above three sources of information received by a Magistrate. If the direct complaint is lodged and after taking cognizance under section 190, Cr.P.C. then Chapter XVI of Part VI would come into operation which has only four sections starting from sections 200 to 203, under which the Court is authorized to hold preliminary enquiry and if it comes to the conclusion that no case has been made out then the complaint is required to be dismissed under section 203, Cr.P.C. But if from the enquiry it is found that the offence has been committed then the Chapter XVII "of the commencement of proceedings before Court" would come into operation. If the proceedings are initiated on any of the abovementioned three sources viz. police report, direct complaint or personal knowledge of the Magistrate, then the proceedings of a case commences by issuing the process as required under section 204, Cr.P.C. Section 204, Cr.P.C. reads as under:-- "section 204. Issue of process.--- (1) If in the opinion of a Court taking cognizance of an offence there is sufficient ground for proceedings, and the case appears to be one in which, according to the fourth column of the Second Schedule, a summons should issue in the first instance, it shall issue his summons for the attendance of the accused. If the case appears to be one in which according to that column, a warrant should issue in the first instance, it may issue a warrant, or if it thinks fit, a summons, for causing the accused to be brought or to appear at a certain time Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 16 before such Court or if it has no jurisdiction itself some other Court having jurisdiction. (2) Nothing in this section shall be deemed to affect the provisions of section 90. (3) When by any law for the time being in force any process fee or other fees are payable, no process shall be issued until the fees are paid and if such fees are not paid within a reasonable time, the Court may dismiss the complaint." A perusal of this section reveals that after taking cognizance of an offence (on any of the source of information mentioned in section 190, Cr.P.C.), if the Court is of opinion that there are sufficient grounds for proceeding and the case appears to be one in which according to the fourth column of the Second Schedule, a summons should be issued in the first instance then the Court shall issue summons for the attendance of the accused but if the Court forms an opinion that the case appears to be one in which according to the abovementioned column, a warrant should be issued in the first instance then it may issue a warrant or if the Court thinks fit a summons may be issued for causing the accused to be brought or to appear at a certain time before such Court or if the Court has no jurisdiction then to some other Court having jurisdiction in the matter. Under subsection (2), it is provided that provision of section 90, Cr.P.C. shall not be deemed to be affected because of the above provision. A general perception is that section 204, Cr.P.C. is applicable to a case filed on a direct complaint only but the wording of the sections "if in opinion of a Court taking cognizance of an offence" are very significant and clear. Under which if the Court takes cognizance of an offence on any of the sources of information mentioned in section 190, Cr.P.C. viz. on police report, on direct complaint or on a Magistrate's personal information, the process can be issued under section 204, Cr.P.C. This is the only provision through which the proceedings are commenced in the Court of law. In my humble view, under the Chapter XVII "of the commencement of proceedings before the Court" the proceedings will commence before any Court if after taking cognizance as required under section 190, Cr.P.C. on any sources mentioned in it, process is issued to the accused persons. Reference is invited to a case of Raghunath Puri v. Emperor reported in AIR 1932 Pat. 72 and Muhammad Aslam v. Additional Secretary, Government of N.-W.F.P. reported in PLD 1987 SC 103. This Chapter which is independent by itself has two sections viz. 204 and 205. Section 205, Cr.P.C. deals with the power of Magistrate to dispense with the personal attendance of the accused. Once the proceedings are commenced under section 204, Cr.P.C. then process of trial begins by framing of the charge as required by various sections of Chapter XIX and then starts the trial before Magistrate, summary trial and trials before High Court and Court of Session as provided under Chapters XX, XXII and XXII-A. From the perusal of section 204, Cr.P.C. it reveals that the process is issued to procure the attendance of accused persons through summons or warrants so as to bring them or to appear before the Court for the commencement of proceedings before the Court. If the summons are issued then they are required to attend the Court on the date mentioned in it or if the warrants are issued then the accused are brought before the Court and if the accused come to know that process has been issued against them but the summons or warrants have not been served or bailable warrants are served then they can appear before the Court. If the accused is Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 17 already in custody then by issuing production warrant for producing the accused before the Court, the proceedings are commenced in the Court. The words used in this section "brought" and "appear" are very significant which should be kept in mind for future reference. Under the scheme of Criminal Procedure Code, Chapter III, deals with general provisions which has only one Chapter namely Chapter VI "process to compel appearance". This is sub-divided into four chapters viz. "A" to "D". Sub-chapter "A" deals with summons, sub-chapter "B" deals with warrants of arrest, sub-chapter "C" deals with proclamation and attachment and sub-chapter "D" deals with other rules regarding process. Thus, under this Chapter, general provisions are provided for issuance of process to compel the appearance of all persons through summons, warrants and in case of non-compliance of warrants, then actions by issuing proclamations and attachment and then other rules regarding process. In this Chapter forms of summons, warrants, the officers who are competent to issue such process and who are to serve the process, the manner in which process are served and so on so forth are provided. The relevant sub-chapter is sub-chapter "D". It starts from sections 90 to 93-C. Section 90 deals with the issuance of warrants in lieu of, or in additional to summons. Section 91 empowers the Court to take bonds for appearance when the persons against whom the process is issued by executing a bond with or without sureties. Sections 92 and onwards are not relevant for the purpose of present discussion. The important provision viz. section 91 reads as under:-- "Section 91. Power to take bond for appearance.--- When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court." A bare reading of this section reveals that when a person is present, in response to summons or warrant, before the Officer Presiding any Court who is empowered to issue summons or warrants then such officer may direct the said persons to execute a bond with or without sureties for his appearance in such Court. Usually under this provision when the complainant or witness appears before the Court in response to summons issued to them and the case is adjourned then bonds with or without sureties are taken from those persons for their appearance on the next date of hearing. However, the words "any person" used in this section are very wide. The said persons can be broadly divided into two categories:-- (1) Accused of an offence which is again sub-divided: (a) involved in bailable offence; (b) involved in non-bailable offence; 2) Any other person including complainant, witnesses or any person, whose appearance is required by the Court excepting above-named persons. The section 91 is appearing in the Part-III, Chapter VI, Cr.P.C. which contains general provisions relating to the process to compel appearance of any person. This Chapter would deal with any process issued against any persons under the Code. Thus, under this Part of Code, general powers have been given to the Court to deal with the issue of process and its related matters. Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 18 A perusal of criminal Procedure Code further reveals that there are supplementary provisions which have been enacted to supplement the other provisions which require further addition or clarification. Part-IX of Criminal Procedure Code deals with such provisions and its heading is "Supplementary provisions". The word "supplementary" is derived from the word "supplement". The dictionary meaning of word “supplement” is defined in Chambers Dictionary as under:-- "Supplement sup'li-ment, n that which supplies a deficiency or fills a need; that which completes or brings closer to completion; an extra part added (later) to a publication, giving further information or listing corrections to earlier mistakes". Thus, supplementary provisions have been enacted to supply deficiency or fill a need or give further information to already enacted provisions. This part has 9 Chapters starting from Chapters XXXVIII to XLVI. In order to make the point further clear, it is pointed out that Chapter XXXVIII is in respect of "the Public Prosecutor" starting from sections 492 to 495, Cr.P.C. dealing with the appointment of Public Prosecutor and their powers. In the Code wherever the word "Public Prosecutor" is mentioned, the same is to be interpreted within the provisions of Chapter XXXVIII. For example in section 265-A, Cr.P.C., the prosecution is to be conducted by a "Public Prosecutor" but there is no provision in the said section as to who would be the Public prosecutor, what will be his powers so on and so forth. Therefore, for these further clarifications, one has to refer to sections 492, to 495, Cr.P.C. which are supplementary provisions to section 265-A, Cr.P.C. where the word "Public Prosecutor" is mentioned. Therefore, section 265-A, Cr.P.C. is to be read with sections 492 to 495, Cr.P.C. for the purpose of giving clarification to word "Public Prosecutor". Similarly in section 91, the word "bond" has been referred which is to be executed by a person who appears before the Court for his appearance either with or without sureties. No further details have been mentioned as to how the bond should be executed, forfeited, amount of bond, and instead of bond other recognizance can be executed so on and so forth; therefore, for those matters, we have to refer to other provisions of the Code. Chapter XLII "Provisions as to bonds" appearing in Chapter IX "supplementary provisions", would be referred to and read with section 91, Cr.P.C. dealing with above subject. Similarly under section 91, Cr.P.C. any person is to be released after executing bond. Any person, includes an accused of an offence. No further details have been mentioned in it as to how the accused person can be released in case of bailable or non-bailable offence. For obtaining further details and fill the deficiency of section 91, Cr.P.C. Chapter-XXXII of Supplementary Provisions, Part-IX, Cr.P.C. "on bail" would be attracted which starts from sections 496 to 502, Cr.P.C. which deal "in what cases bail is required to be taken till the discharge of the sureties". As such section 91 is to be read along with the sections 496 to 502, Cr.P.C. for the purpose of releasing the accused involved in bailable or non-bailable offences. A perusal of section 496, Cr.P.C. reveals that when any person is arrested, detained without warrants by Officer Incharge of a police station or appears or brought before the Court and is prepared to give bail then such person shall be released on bail. Under section 497, Cr.P.C. if the accused person is involved in a non-bailable offence, then in such case where such person is arrested or detained without warrants by an Officer Incharge of a police station, or appears or is brought before the Court, he may be released on bail Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 19 but shall not be so released if there appears reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years. Thus, under both these provisions, an order granting bail is to be passed before releasing an accused person who appears or is brought before the Court, and who is involved in a bailable or non-bailable offence. Without grant of bail such person cannot be released on bail. Bonds are to be executed after grant of bail. If section 91 is read with section 496 and 497, Cr.P.C. then there will be no hesitation in holding that when an accused person involved in a case of bailable or non-bailable offence against whom the process is issued under section 204, Cr.P.C. then he is to be released on bail within the meaning of section 496 or 497, Cr.P.C. as the case may be and then would execute bonds with or, without surety. The word "appears" or "brought" appearing in section 496 and 497, Cr.P.C. are the same words which have been used in section 204, Cr.P.C., for which I have already made such reference in the earlier part of the order. From the above position, it is clear that once the accused person or persons are brought or appear before the Court in pursuance of process under section 204, Cr.P.C. issued either on a police report, direct complaint or Magistrates own personal information, then the Court is required to decide as to whether the offences are bailable or non-bailable. If the offences are bailable then the Court shall release the accused on bail within the meaning of section 496, Cr.P.C. by passing appropriate order. However, if the offences are non-bailable, then the accused person or persons are required to be remanded to judicial custody or the Court may grant bail to them within the meaning of section 497, Cr.P.C. after complying the requirements of the said section by passing a speaking order. If the accused person or persons before the process is served upon them or bailable warrants are served want to invoke the provisions of pre-arrest bail as provided under section 498, Cr.P.C. then they can approach the appropriate Court for grant or otherwise of the pre-arrest bail by invoking the provisions of said section after satisfying the conditions mentioned therein. The provisions of sections 496, 497 and 498, Cr.P.C. have elaborately been discussed by the Honourable Supreme Court of Pakistan in cases Sadiq Ali v. State PLD 1966 SC 589 and Muhammad Ayoob v. Muhammad Yakoob PLD 1966 SC 1003. Thus, the section 91, Cr.P.C. cannot be applied in isolation, but it is to be applied and read with sections 496 and 497, Cr.P.C. for the purpose of release of an accused person against whom a process is issued under section 204, Cr.P.C. by the Court after taking cognizance on any source of information mentioned in section 190, Cr.P.C. In the present case, the offences were non-bailable. When the applicants appeared before the trial Court in pursuance of bailable warrants issued under section 204, Cr.P.C. for their appearance, the trial Court without granting bail within the meaning of section 497, Cr.P.C. released the applicants on the affidavits filed by the surety. The said procedure was not warranted by law; therefore, the trial Court was not justified in releasing the accused without granting of bail through an order passed under section 497, Cr.P.C. The trial Court is required to comply with provisions of section 497, Cr.P.C. in the direct complaint case. Thus, the arguments of the counsel for the applicants has no force that the trial Court had granted bail to the applicants.” Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 20 16. In the later case of Zia-ur-Rehman Sajid v. Muhammad Aslam and another (2005 P.Cr.L.J. 1706) Maulvi Anwarul Haq, J. of the Lahore High Court, Lahore had followed the law declared by the High Court of Sindh, Karachi in the case of Noor Nabi (supra) and had also referred to the case of Khizer Hayat v. Inspector-General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470) wherein a Full Bench of the Lahore High Court, Lahore had referred to the case of Noor Nabi. It was observed by Maulvi Anwarul Haq, J. as reproduced below: “3. Learned counsel for the petitioner contends that the learned trial Court for all purposes has granted pre-arrest bail to the petitioner without a notice and without complying with the provisions of sections 496 and 497, Cr.P.C. According to him, provisions of section 91, Cr.P.C. arc to be read in conjunction with the said sections 496 and 497, Cr.P.C. He relies on the case of Noor Nabi and 3 others v. The State 2005 PCr.LJ 505. Learned A.A.-G. states that a learned Full Bench of this Court, in its judgment dated 1-6-2005 inter alia, in Writ Petition No. 11862 of 2004 (Khizar Hayat v. Inspector-General of Police (Punjab), Lahore and others) has approved the said dictum of the learned High Court of Sindh High Court at Karachi. Learned counsel for the respondent No. 1, on the other hand, contends that on a plain reading of section 91, Cr.P.C. the impugned order of the learned trial Court cannot be stated to be illegal. 4. I have examined the available records as also the relevant provisions of Cr.P.C. in the light of said judgments. I deem it appropriate to reproduce hereunder the observations of my learned brother Asif Saeed Khan Khosa, J. who delivered the opinion of the Full Bench appearing at pages 43 and 44 of the said judgment:--- "The powers available during an investigation, enumerated in, Part V, Chapter XIV of the Code of Criminal Procedure, 1898 read with section 4(1)(1) of the same Code, include the powers to arrest an accused person and to effect recovery from his possession or at his instance. Such powers of the investigating officer or the investigating person recognize no distinction between an investigation in a State case and an investigation in a complaint case. In the case of Noor Nabi and 3 others v. The State 2005 P.Cr.L.J. 505 a learned Judge-in-Chamber of the Honourable Sindh High Court has already clarified that section 91, Cr.P.C. deals only with procuring attendance of a person before the Court and after his availability before the Court the matter of his admission to bail or not rests in the hands of the Court and that the impression about automatic admission of an accused person to bail in a case of private complaint is erroneous." 5. Now examining the present case in the light of the said judgment of the learned Full Bench cited by the learned A.A.-G. and the said judgment of the learned High Court of Sindh at Karachi in the case of Noor Nabi and 3 others, I find that notwithstanding the fact that the respondent No. 1 had put in appearance before the Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 21 learned trial Court, provisions of sections 496 and 497, Cr.P,C. had not been rendered ineffective and the learned trial Court has acted with lawful authority in assuming that the respondent No. 1 is entitled to automatic admission to bail. There was no power vesting in the learned trial Court to release the respondent No. 1 after taking him into custody without passing an order in terms of section 497, Cr.P.C. This criminal miscellaneous is accordingly treated as an application under section 561-A, Cr.P.C. and is allowed and the impugned order of the learned trial Court is set aside. The respondent No. 1 shall, however, be entitled to apply for grant of bail and if such an application is filed, the same shall be considered and decided by the learned trial Court after hearing the complainant as well as the State in accordance with law.” 17. Still later in the case of Shaukat Rasool v. The State and another (PLD 2009 Lahore 590) Muhammad Khalid Alvi, J. of the Lahore High Court, Lahore decided on the same lines as was done in the case of Noor Nabi (supra) without referring to the said precedent case and it was held as follows: “6. Chapter VI of the Code of Criminal Procedure deals with process to compel service through summons, bailable or non-bailable warrants and ensure presence of persons connected with the inquiry or trial. Person may be a witness or an accused in such inquiry or trial. This Chapter does not deal with grant or refusal of bail to a person accused of bailable or non-bailable offence. Section 91 referred by the learned counsel for the petitioners is reproduced as follows:-- "Power to take bond of appearance.--When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court." This section empowers a Court to require "any person" to execute a bond with or without surety for his appearance in such Court. Such person may or may not be an accused in the inquiry or trial before such Court he is merely being bound down by such bond to appear before the Court as and when required. 7. So far as grant of bail is concerned, it is dealt with by Chapter XXXIX of the' Code of Criminal Procedure which deals with various categories of bails. Section 496 is reproduced as follows:-- "In what cases bail is to be taken.-- When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer incharge of a Police Station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such Court to give bail, such person shall be released on bail. Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided: Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 22 Provided, further that nothing in this section shall be deemed to affect the provisions of section 107, subsection (4) or section 117, subsection (3)." This section deals with accused of non-bailable offences arrested or detained without warrant or appear or brought before the Court, such person "shall" be released on bail without any further formality provided the accused is ready to furnish bail. Meaning thereby that in such eventuality there is no discretion lying with the Court to refuse of grant bail. 8. Section 497 deals accused of nonbailable offence, which is reproduced as follows:-- "When bail may be taken in case of non-bailable offence.-- (1) When any person accused of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or [imprisonment] for life or imprisonment for ten years]:" Subsection (1) of section 497 Cr.P.C. divides accused persons of non-bailable offences in two categories; first category is of those accused persons who have allegedly committed offences which are punishable with less than 10 years and are non-bailable. This category of accused persons may be ordinarily admitted to bail keeping in view the facts and circumstances of the case. However, bail may be refused in exceptional circumstances, keeping in view the nature of offence, previous history of the accused, his conduct, repetition of offence by such accused etc. etc. Second category is of those accused persons who are guilty of offences punishable with more than 10 years. There is a bar for the grant of bail to such accused persons unless reasonable grounds are available for believing that he is not guilty of such an offence. 9. In any case for the grant or refusal of bail under this provision discretion lies with the Court and has to be exercised judicially by application of mind. 10. Another distinctive feature between sections 91 and 497 Cr.P.C. is that in section 91 the Court is not required to issue notice to the prosecution while directing "any person" to execute bond. While under section 497 if the Court intends to admit an accused of non-bailable offence to bail a notice to prosecution is mandatory under the last proviso to subsection (1). 11. Sections 498 and 498-A deal with the powers of Sessions Court and High Court to admit to bail even though he was not yet been arrested or detained in an offence which falls in the category of non-bailable offences. 12. Under section 204 of the Cr.P.C. the Court after recording preliminary evidence is of the opinion that there are sufficient grounds to proceed further would issue process in the nature as provided in the 4th Column of the 2nd Schedule i.e. summons or warrants in the first instance. In response to such process if the accused person appears before the Court he not only may be required by the Court to execute a bond under section 91 Cr.P.C. but it shall also be required that his custody be handed over to a surety under a bail bond in terms of section 496 if the offence is bailable and in terms of section 497 if the offence is non-bailable. If the offence is Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 23 non-bailable the accused is necessarily required to be taken into custody by the Court and notice as required under the last proviso to subsection (1) of section 497 Cr.P.C. will be issued to the prosecution for the purpose of grant or refusal of bail to such an accused. 13. Nutshell of the above discussion is that if a person accused of non-bailable offence is summoned by a Court under section 204 is not only required to execute bond under section 91 for his appearance but it is also required that either he be taken into custody by the Court and if he is to be released on bail then before such release a notice to prosecution is to be issued and the grant or refusal of bail is then to be examined on its own merits. It is thus evident that a person accused of non-bailable offence should either be in the custody of the Court or in the custody of a surety in terms of section 496 or 497. Execution of bond under section 91 does not qualify the above test. 14. For what has been stated above, contention of the learned counsel for .the petitioners that furnishing of bond by the petitioners under section 91, Cr.P.C. is sufficient for their release on bail because conditions necessary to be examined for admitting a person accused of non-bailable offence are not considered while requiring bond under section 91.” 18. In the case of Luqman Ali v. Hazaro and another (2010 SCMR 611) decided by a 3-member Bench of this Court the judgment handed down was authored by Rahmat Hussain Jafferi, J. who was also the author of the judgment rendered by the High Court of Sindh, Karachi in the case of Noor Nabi (supra). In the judgment delivered in the case of Luqman Ali practically the same reasoning was re- advanced as was advanced in the case of Noor Nabi (supra) and it was held as under: “7. Having heard the learned counsel for the parties, the respondent and perusing the record of the case very carefully, we find that the point involved in the case is interpretation of section 204, Cr.P.C. as the name of the respondent was put in Column No. 2 of the Challan because the police found him innocent but the respondent was joined as an accused person under the orders of the trial Court which has not been challenged anywhere as such it has attained finality. Thus, the respondent was an accused in a murder case which is punishable with death or imprisonment for life. 8. In this case, after submission of Challan, the Judicial Magistrate took cognizance as provided under section 190, Cr.P.C. and sent up the case to the Court of Session where the cognizance was also taken as required under section 193(1), Cr.P.C. The case was assigned to IInd Additional Sessions Judge, who issued the process to the respondent mentioned in Colunm No. 2 of the Challan after joining and making him as an accused. The process in the shape of non-bailable warrants was issued to procure his attendance so as to commence the proceedings against him. The scheme of Criminal Procedure Code envisages three steps (i) initiation of proceedings which can be initiated after fulfilling one of the conditions, as provided under sections 190 to 199-B of Chapter XVB, Cr.P.C.; (ii) commencement of proceedings as provided under Chapter XVII, Cr.P.C. containing only two sections viz. 204 and Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 24 205; and (iii) the trial as provided under Chapters XX or XXII or XXII-A, etc. Cr.P.C. One of the conditions for initiation of proceedings is to take cognizance as required under section 190 of Chapter XV-B, Cr.P.C. The heading of Chapter XV-B reads as under:--- "B- Conditions requisite for initiation of proceedings." Thus, under this Chapter, the cognizance is one of the conditions for initiation of proceedings. Once the proceedings are initiated then the same are required to be commenced which can only be done under section 204, Cr.P.C. of Chapter XVII, heading of which is as follows:- "Of the commencement of proceedings before Courts." 9. It will be advantageous to reproduce section 204, Cr.P.C. to understand the scope of the said provision of law:--- "204. Issue of process.---(1) If in the opinion of a Court taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be one in which, according to the fourth column of the Second Schedule, a summons should issue in the first instance, {it} shall issue its summons for the attendance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first instance, it may issue a warrant, or, if {it} thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Court or if it has no jurisdiction itself some other Court having jurisdiction. (2) Nothing in this section shall be deemed to affect the provisions of section 90. (3) When by any law for the time being in force any process fees or other fees are payable, no process shall be issued until the fees are paid, and if such fees are not paid within a reasonable time, the Court may dismiss the complaint." Under subsection (1), if the Court, which is taking cognizance of the offence (under sections 190, 193, 194 and 200 etc., Cr.P.C.) finds sufficient grounds for proceedings, then it can issue process according to Column No. 4 of 2nd Schedule to Cr.P.C. If the case is such where summons is required to be issued under 4th Column then summons shall be issued for attendance of the accused and if the case appears to be one in which according to said Column warrants should be issued then the Court may in the first instance issue warrants or if thinks fit summons can be issued for causing the appearance of the accused before the Court on certain date or if it has no jurisdiction then direction can be issued to appear before such other Court. Under subsection (2), the provisions of section 90, Cr.P.C. would not come in the way. 10. Thus, the purpose of section 204, Cr.P.C. is to procure the attendance of the accused by issuing the required process. If the accused is in custody then such process can be issued by issuing production order to the jail authorities and if the accused is absconding then the process can be issued in the shape of warrants. It is pointed out that if the accused is absconding or Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 25 released then the name of accused of both the categories are required to be mentioned in Column No. 2 of the Challan with red and blue ink, respectively. Therefore, the process is to be issued to the accused, who is absconding and similar process can also be issued to an accused whose name is in Column No. 2 with blue ink after he is made an accused in the case. It will be noted that warrants are addressed to the Police Officer to arrest the person and produce him before the Court on a particular date. Thereafter the said warrants become ineffective unless extended or re-issued by the Court. Similar is the case with the bailable warrants under which the Police Officer is required not to arrest the accused if he furnishes surety before him for his appearance before the Court on the date mentioned in the warrants. After appearance of the said accused before the Court the said order ceases to exist unless the accused is released in accordance with law. 11. In such a situation when the accused appears in pursuance of process under section 204, Cr.P.C. either through summons or warrants or bailable warrants or on his own and if the offence is non-bailable then the provisions of section 497, Cr.P.C. would be attracted and accused could only be released after moving such application and grant of the same. If no such application is moved or no bail is granted by any competent Court either under section 497 or 498, Cr.P.C., as the case may be, then the accused is required to be remanded to judicial custody till the time a proper order is passed either by the trial Court or by the superior Court. 12. We have examined the order of the learned Additional Sessions Judge and find that the same is well-reasoned, based upon correct interpretation of relevant provisions of law and relying upon the case of Noor Nabi (supra). We have also examined the said judgment and found that the learned High Court examined in depth all the required provisions of law and interpreted the same in its true perspective. We have examined the impugned order of the learned High Court but are unable to persuade ourselves to agree with the finding arrived at by the learned High Court particularly releasing the accused without the grant of bail. Such release of the accused was unwarranted, illegal and against the provisions of sections 497 and 498, Cr.P.C., therefore, the said order cannot be sustained. 13. In the light of what has been discussed above, the impugned order passed by the learned High Court is set aside and the remarks recorded against the learned Additional Sessions Judge are expunged. The respondent is directed to surrender before the trial Court immediately. However, he may move an application for grant of bail under section 497 or 498, Cr.P.C., as the case may be, which shall be decided in accordance with law and merits of the case.” 19. The last reported case of this category of cases is the case of Amjad Iqbal v. Additional Sessions Judge, Bhalwal, District Sargodha and 9 others (PLD 2012 Lahore 33) wherein Ijaz Ahmad Chaudhry, C.J. of the Lahore High Court, Lahore (as his lordship then was) had expressly referred to and followed the law declared by this Court in the case of Luqman Ali (supra) and had observed as follows: Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 26 “6. I have heard learned counsel for the parties and have also gone through the documents appended with this petition, in addition to the case law cited by learned counsel for the parties at the bar, in support of their respective pleas. During the course of hearing, I have noted that the question involved in this petition is that whether a court is competent to release the accused summoned in a private complaint upon his furnishing bail bonds or they are required to file independent bail petitions for their release. To resolve the controversy, perusal of sections 91 and 204 of Cr.P.C. would be imperative, which for convenience of reference are reproduced herein below: - "91. Power to take bond for appearance.-- When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summon or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such court." "204. Issue of process.-- (1) If in the opinion of a Court taking cognizance of an offence there is sufficient ground for proceeding and the case appears to be one in which, according to the fourth column of the second schedule a summons should issue in the first instant, it shall issue its summons for the attendance of the accused. If the case appears to be one in which, according to that column, a warrant should issue in the first instance, it may issue a warrant, or, if, it thinks fit, a summons for causing the accused to be brought or to appear at a certain time before such Court or (if it has not jurisdiction itself) some other court having jurisdiction. (2) Nothing in this section shall be deemed to affect the provision of section 90. (3) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid, and, if such fees are not paid within a reasonable time, the Court may dismiss the complaint." A perusal of the aforementioned provisions makes it crystal clear that a court can call a person through summons or through warrants. The afore-quoted sections deal with the procedure regarding procurement of attendance of an accused. Once an accused appears before the court pursuant to the process issued to him, the purpose of afore- mentioned sections comes to an end and then the court is to determine whether the offence is bailable or non-bailable. If according to the court, the offence is bailable, it will release the accused upon submission of bail bonds. In case, if the offence is non-bailable, the court shall either release them on bail upon an application or send them to the judicial lock up. According to the dictum laid down by the Hon'ble Supreme Court of Pakistan, in the case of Luqman Ali, supra, while dealing with such question the Hon'ble Supreme Court of Pakistan inter alia held as under: "In such a situation when the accused appears in pursuance of process under section 204, Cr.P.C. either through summons or warrants or bailable warrants or on his own and if the offence is non-bailable then the provisions of section 497, Cr.P.C. would be attracted and accused could only be released after moving such Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 27 application and grant of the same. If no such application is moved or no bail is granted by any competent Court either under section 497 or 498, Cr.P.C., as the case may be, then the accused is required to be remanded to judicial custody till the time a proper order is passed either by the trial Court or by the superior Court. We have examined the order of the learned Additional Sessions Judge and find that the same is well- reasoned, based upon correct interpretation of relevant provisions of law and relying upon the case of Noor Nabi (supra). We have also examined the said judgment and found that the learned High Court examined in depth all the required provisions of law and interpreted the same in its true perspective. We have examined the impugned order of the learned High Court but are unable to persuade ourselves to agree with the finding arrived at by the learned High Court particularly releasing the accused without the grant of bail. Such release of the accused was unwarranted, illegal and against the provisions of sections 497 and 498, Cr.P.C., therefore, the said order cannot be sustained." As per the afore-referred judgment of the Hon'ble Supreme Court of Pakistan, if a person appears before the court pursuant to process under section 204, Cr.P.C. in a non-bailable offence, the court cannot release him merely on filing of surety bonds rather he can be released after giving bail.” 20. A survey of the reported cases detailed above clearly shows that in the first category of cases in favour of acceptance of a bond under section 91, Cr.P.C. the case of Mazhar Hussain Shah v. The State (1986 P.Cr.L.J. 2359) decided by Muhammad Rafiq Tarar, J. of the Lahore High Court, Lahore was the foundational case and the order passed in that case was not only upheld by a 3-member Bench of this Court vide judgment dated 14.01.1987 passed in Criminal Appeal No. 56 of 1986 (Reham Dad v. Syed Mazhar Hussain Shah & others) but the said order had also been approvingly referred to by another 3- member Bench of this Court in the later case of Syed Muhammad Firdaus and others v. The State (2005 SCMR 784). As against that in the second category of cases in favour of bail under sections 496, 497 or 498, Cr.P.C. the pivotal position is held by the case of Noor Nabi and 3 others v. The State (2005 P.Cr.L.J. 505) decided by Rahmat Hussain Jafferi, J. of the High Court of Sindh, Karachi and the reasons recorded in that case were subsequently repeated by the same Honourable Judge in his capacity as a Judge of this Court in the case of Luqman Ali v. Hazaro and another (2010 SCMR 611) Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 28 decided by a 3-member Bench of this Court. It is, thus, imperative to critically examine the cases of Mazhar Hussain Shah (supra) and Noor Nabi (supra) and all the precedent cases based on those cases so that the comparative merit of the two conflicting approaches may be assessed. 21. The principles laid down by the Lahore High Court, Lahore in the case of Mazhar Hussain Shah (supra) were upheld by a 3-member Bench of this Court in its judgment dated 14.01.1987 passed in Criminal Appeal No. 56 of 1986 (Reham Dad v. Syed Mazhar Hussain Shah & others) and the said principles were subsequently approvingly referred to by another 3-member Bench of this Court in the case of Syed Muhammad Firdaus and others v. The State (2005 SCMR 784) and also in the other cases belonging to the first category of cases mentioned above. After a careful perusal and examination of all the precedent cases belonging to this category of cases the principles laid down therein may be summarized as follows: (i) A process is issued to an accused person under section 204, Cr.P.C. when the court taking cognizance of the offence is of the “opinion” that there is “sufficient ground” for “proceeding” against the accused person and an opinion of a court about availability of sufficient ground for proceeding against an accused person cannot be equated with appearance of “reasonable grounds” to the court for “believing” that he “has been guilty” of an offence within the contemplation of sub-section (1) of section 497, Cr.P.C. Due to these differences in the words used in section 204 and section 497, Cr.P.C. the intent of the legislature becomes apparent that the provisions of section 91, Cr.P.C. and section 497, Cr.P.C. are meant to cater for different situations. (ii) If the court issuing process against an accused person decides to issue summons for appearance of the accused person before it then the intention of the court is not to put the accused person under any restraint at that stage and if the accused person appears before the court in response to the summons issued for his appearance then the court may require him to execute a bond, with or without sureties, so as to ensure his future appearance before the court as and when required. (iii) If in response to the summons issued for his appearance the accused person appears before the court but fails to submit the requisite bond for his future appearance to the satisfaction of the court or to provide the required sureties then the accused person may be committed by the court to custody till he submits the requisite bond or provides the required sureties. 22. As against that in the second category of cases the principles laid down by the High Court of Sindh, Karachi in the case of Noor Nabi Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 29 (supra) and iterated on the identical lines by a 3-member Bench of this Court in the case of Luqman Ali v. Hazaro and another (2010 SCMR 611) and referred to and followed in the other cases of this category mentioned above may be encapsulated as follows: (i) The scheme of the Code of Criminal Procedure shows that institution of proceedings, commencement of proceedings before the court and trial before the court are dealt with therein separately and the provisions relatable to the same are different. Section 91, Cr.P.C. is a step relevant to commencement of proceedings before the court taking cognizance of the case. (ii) Any person appearing before the court or brought before the court upon issuance of summons or warrant against him may be required by the court under section 91, Cr.P.C. to execute a bond for his appearance before the court in future and this power is usually exercised in connection with appearance of the complainant or a witness so as to ensure his appearance before the court in future. (iii) When an accused person appears before the court or is brought before the court after issuance of summons or warrant against him he cannot be released upon execution of a bond under section 91, Cr.P.C. but he is either to be taken into custody or he may be released on bail under sections 496, 497 or 498, Cr.P.C. depending upon whether the offence in issue is bailable or non- bailable. 23. After carefully attending to the relevant statutory provisions of the Code of Criminal Procedure and after minutely examining all the precedent cases detailed above we may straightaway observe, and we observe so with great respect, that in the cases of Noor Nabi (supra) and Luqman Ali (supra) as well as in all the other cases falling in the second category of cases mentioned above different High Courts and even this Court had completely omitted from consideration that a contrary view in respect of the very issue under discussion had already been expressed by this Court in the cases of Reham Dad (supra) and Syed Muhammad Firdaus (supra) and in those cases the law declared by the Lahore High Court, Lahore in the case of Mazhar Hussain Shah (supra) had expressly been upheld and approvingly referred to respectively by different 3-member Benches of this Court. It is, thus, obvious that in the case of Noor Nabi the High Court of Sindh, Karachi could not take a view of the issue different from that already expressed by this Court. The judgment in the case of Luqman Ali was authored by the same Honourable Judge who was the author of the judgment in the case of Noor Nabi and in the case of Luqman Ali Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 30 too the earlier two judgments of this Court on the subject had completely been ignored. This oversight, if not a lacuna, in the judgments rendered in the cases of Noor Nabi and Luqman Ali and also in all the other cases wherein the ratio of the said two cases had been followed had substantially denuded all such judgments of their authoritative force besides completely impairing their persuasive value and it may be said with respect that the said judgments were rendered per incuriam. 24. It has also been particularly noticed by us that in the case of Noor Nabi the High Court of Sindh, Karachi had made contradictory observations regarding the scope of section 91, Cr.P.C. On the one hand it had expressly been held in the judgment delivered in that case that the words “any person” in section 91, Cr.P.C. include an accused person who appears or is brought before the court upon issuance of summons or warrant against him but on the other hand it had also been observed in that judgment that the provisions of section 91, Cr.P.C. are usually utilized for securing and ensuring future appearance of a complainant or a witness before the court whereas the matter of an accused person is to be dealt with not under section 91, Cr.P.C. but under sections 496, 497 or 498, Cr.P.C. This contradiction in the said judgment had remained completely unexplained and unresolved and in the case of Luqman Ali the judgment in the case of Noor Nabi had been expressly referred to, if not dittoed, and the learned author Judge of both of those judgments was one and the same Honourable Judge. 25. In the context of the legal issue under discussion it is of critical importance to understand and appreciate the difference between a bail and a bond and unfortunately in the cases of Noor Nabi and Luqman Ali that difference and distinction had not been noticed or realized at all. A bail is a release from a restraint (actual, threatened or reasonably apprehended loss of liberty) and a bond is an undertaking for doing a particular thing and in the present context it is an undertaking for appearance before the court in future as and when required to do so. A bond invariably stipulates a penalty for Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 31 non-fulfillment of the undertaking and in case of failure to fulfill the undertaking the bond may be forfeited and the stipulated penalty may be imposed in full or in part. It had not been appreciated in the cases of Noor Nabi and Luqman Ali that in a case of issuance of summons against an accused person under section 204, Cr.P.C. such person is under no actual, threatened or reasonably apprehended restraint at the time of his appearance before the court and, thus, his applying for bail is not relevant at such a stage and if he undertakes before the court to keep on appearing before the court in future as and when required to do so then he may be required to execute a bond, with or without sureties, in support of such undertaking. The position may, however, be different where the process issued against the accused person under section 204, Cr.P.C. is through a warrant, bailable or non-bailable, in which case the accused person may come under an actual, threatened or reasonably apprehended restraint. In such a case the accused person may choose to apply for bail which may or may not be allowed by the concerned court. Even in such a case upon appearance of the accused person before the court or upon his having been brought before it the court concerned may, if it thinks appropriate, require the accused person to furnish a bond, with or without sureties, without even considering bail to be necessary because issuance of a warrant, bailable or non-bailable, was meant only for procuring attendance of the accused person before the court and not for any other purpose. 26. In the backdrop of what has been observed by us in the preceding paragraph we deem it necessary to discuss the concepts of restraint, bail and bond in some detail because a proper understanding of the said concepts holds the key to the legal issue under discussion. So far the most illustrative and illuminating judgment rendered in respect of such concepts has been the one handed down in the case of The Crown v. Khushi Muhammad (PLD 1953 Federal Court 170). It was a case decided by a 3-member Bench of the erstwhile Federal Court of Pakistan, the predecessor Court of this Court, and the subject under discussion was the scope of filing of Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 32 an application for pre-arrest bail in a criminal case. In that case Abdul Rashid, C.J. had observed as follows: “It appears to me to be obvious from the above observation that section 498 does not in any way enlarge the categories of persons to whom bail can be granted under Chapter XXXIX. This necessarily leads to the inference that such persons must be under custody before they can be given any relief by the High Court or the Court of Session. Under sections 496 and 497 an accused person can be released on bail. This presupposes that the accused person is under some sort of restraint. If section 498 is ancillary or subsidiary to sections 496 and 497 it cannot be said that this section empowers the highest Court to grant bail to persons who have not been put under any restraint whatever. If this were so, the ancillary and subsidiary section would be enlarging the powers granted to the Courts under the principal sections, namely, 496 and 497. It is difficult to hold that the legislature would embody in a subsidiary or ancillary section a provision which deals with persons other than those who fall within the purview of sections 496 and 497. If section 498 were given the wide interpretation envisaged in the case of Hidayat Ullah Khan (supra), section 498 would not be ancillary or subsidiary, but would be wholly independent of the powers conferred on the High Court or the Court of Session by sections 496 and 497. In order to support the interpretation placed on section 498 of the Code in the case of Hidayat Ullah Khan (supra), Mr. Qalandar Ali Khan contended, on behalf of the respondent, that as soon as the respondent had made an application to the Court asking for grant of bail he had appeared before the Court and that such appearance must be regarded as a surrender to the custody of the Court. It was urged that, under the circumstances, he could be admitted to bail under the provisions of section 498 as he had appeared in Court under section 497. This argument of the counsel leads to extraordinary results. If a person who appears before the High Court under section 497, is taken to be in the custody of the Court merely because of his appearance, it is difficult to imagine what would happen to him if the Court rejects his application for bail. He appeared in Court as a free man. Is the Court bound to keep him in custody and send him to jail simply because it rejects his application? If so, under what provision of the Code? The failure of his application would therefore deprive a suspected person of his freedom. What is the Court to do with him is another difficult question? He comes into Court protesting that he is innocent and there is no case against him. The Court decides not to accept his application for bail. He cannot be required to execute any bail bonds under the provisions of section 499 of the Code. It is clear, therefore, that the making of an application for bail and his presence in Court cannot be regarded as appearance under section 497 of the Code. In fact, in Hidayat Khan's case (supra) it was pointed out by the learned Judges of the High Court that nowhere in law was there to be found any warrant for the plea that a Court possesses any power to take into custody a person offering himself for the purpose if there be no justification for the Court to exercise the power of taking such person into custody. When a person appears before the High Court merely to present an application for bail, without any warrant for his arrest having been issued, he is not appearing in respect of any offence of which the High Court is taking cognizance at the time and his appearance before the Court cannot be regarded as a surrender to custody. Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 33 It was urged by Mr. Sleem that "admitting to bail" is also placing a person under some form of restraint. Reference was made in this connection to section 308 of the Code where it is laid down that whenever the jury is discharged the accused shall be "detained in custody or on bail as the case may be." The word "detained" applies both to custody and to the enlargement of a person on bail. The grant of bail to accused person is merely the substitution of one type of restraint for another type of restraint. If through mistake, fraud, or otherwise, a person has been enlarged on bail on insufficient sureties, or if they afterwards become insufficient, the Court may issue a warrant of arrest directing that the person released on bail be brought before it and may order him to find sufficient sureties, and on his failing so to do, may commit him to jail. It is possible to conceive of cases where a person has unnecessarily applied for anticipatory bail and has been released on executing a bail bond with sureties. He might never have been arrested by the police but being released on anticipatory bail he has made himself liable to be committed to prison if his sureties become insufficient after bail has been taken. It may be that at one stage or another the surety of a person who has been given bail desires to be discharged and such person is unable to find a new surety. In these circumstances, a person who would never have been arrested otherwise may be arrested and committed to prison. The provisions of section 498 of the Code cannot be interpreted in manner which lead to such absurd results. The basic conception of the word "bail" is release of a person from the custody of police and delivery into the hands of sureties, who undertake to produce him in Court whenever required to do so. This is the meaning which has been given to the word "bail" in Standard English Dictionaries as well as in Wharton's Law Lexicon and Stroud's Judicial Dictionary. This is also borne out by the form of bond and bail bond given in Schedule V of the Cr.P.C. This basic conception of the meaning of the word "bail" has not been adverted to in the Full Bench judgment in the case of Hidayat Ullah Khan (supra). Reliance has been placed by the learned Judges of the High Court on the case of Johur Mull and others (10 C W N 1093). In that case there was a murder in Calcutta. Four persons were arrested on suspicion by the police and their cases were pending before the Second Presidency Magistrate. Meanwhile, Johur Mull and others were also suspected and non-bailable warrants for their arrest were issued. Thereupon they made an application for bail in the High Court before they had surrendered. The only objection that was taken to the application by the Offg. Standing Counsel was that in murder cases ordinarily no bail should be taken. It was observed by Mitra, J. that ordinarily they did not allow bail in cases like the present, but they had power under section 498 of the Code to direct that any person should be admitted to bail in any case. This case is distinguishable as the issuing of a non-bailable warrant may be treated as imposing a certain amount of restraint on the accused. If the words "in any case" could be taken to include every accused person including a convict or a person who has not been taken into custody, there would have been no necessity to enact section 426 of the Code, or to insert subsection (2-B) in section 426 which was done in 1945. A person who had been granted special leave to appeal to His Majesty-in-Council could then be admitted to bail under section 498 on the ground that the words "in any case" cover the case of a convict who has preferred an appeal to His Majesty-in-Council. It has been observed by the Lahore High Court in Hidayat Ullah Khan's case (supra) that it is conceivable to think of cases where credible information has been laid before a police officer that a certain person is guilty of a non-bailable offence not punishable with Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 34 death or transportation for life, that he is in the presence of the police officer at the time when information is received, and that in such a case there will be no contravention of anything contained in the Code if the police officer grants bail to such a person forthwith without going through the formality of arresting him. This observation seems to imply that the arrest of a person necessarily means the use of force against him in order to bring him under restraint by the police officer. Section 46 of the Code lays down that "In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action". In the case referred to above, there would be a submission to the custody of the police officer by word or action and the police officer could thereupon release the person on bail under section 169 or section 497 of the Cr.P.C. The police officer, in the circumstances, could act only under section 169 or section 497 which deal with release on bail and the word "release" necessarily implies freedom from some sort of restraint. A brief reference may now be made to cases which have taken a view contrary to the one taken by the Full Bench of the Lahore High Court in the case of Hidayat Ullah Khan (supra). On the 19th of October, 1943 Mr. Justice Blacker delivered judgment in a case (Criminal Miscellaneous No. 743 of 1943) in which an application had been made by one K. S. Sobti that he be admitted to bail under the provisions of section 498 of the Cr.P.C. It was stated in the petition that the petitioner was in no sort of custody, nor was he under any form of restraint. It was pointed out by the Advocate-General that the police had not yet even decided whether they will prosecute Sobti as there was a great deal of material to be sifted, and they were not certain whether the material would be sufficient for the prosecution of the petitioner. The learned Judge came to the conclusion that section 498 could not be availed of by any one who was not in custody and against whom no warrant for arrest had been issued. A Full Bench of the East Punjab High Court has held in Amir Chand v. The Crown (AIR 1950 East Punjab 53) that the very notion of bail presupposes some sort of previous restraint. Bail, therefore, could not be granted to a person who had not been arrested and for whose arrest no warrants had been issued. Section 498 of the Code did not permit the High Court or the Court of Session to grant bail to persons whose case was not covered by sections 496 and 497. The judgment of the Lahore High Court, in the case of Hidayat Ullah Khan (supra), the decision of Munir, J. (Now C.J.) in Khawja Nazir Ahmad v. The Crown (Cr. Misc. No. 592 of 1943), the decision of Blacker, J., referred to above, and some authorities of the Sind Chief Court were discussed in great detail in this case. Reference was also made in the judgment of Kapur, J., to statute law in England and it was pointed out that in spite of the fact that the words "admitted to bail' had been uniformly used in English statutes there was no case which purported to show that bail had ever been granted to a person who was not under restraint. The learned Judges of the Sind Court have also dealt with this matter in the case of Muhammad Abbas v. The Crown (PLR 1949 Kar. 95 = PLD 1950 Sind 80). It was pointed out in this case that it would be contrary to every judicial principle for a high judicial authority to exercise a revisional power like that conferred by section 498 of the Code to interfere by giving directions in anticipation to a subordinate authority before the subordinate authority had exercised jurisdiction legally conferred upon it. The existence of a concurrent power in the High Court with that of the Magistrate in granting bail was negatived. It was pointed out that all persons who can be admitted to bail under Ss. 496 and 497 must be in the custody of the police or in the custody of the Court as otherwise the words "shall be released on bail" would have no meaning. It was also observed that where a person is admit- Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 35 ted to bail he has to execute a bond and his surety or sureties have to execute bail bonds and the time when the person released is required to be present before the Court is to be entered in those bonds. Various other entries have also to be made in the bail bond. such as, the offence with which the accused is charged, and the bail bonds are intended to secure the appearance of persons who have been arrested and whose presence is required by Court. The terms of these documents make it clear that they can only be executed by persons who are under arrest or in custody. It is unnecessary to examine all these authorities in detail as all of them rely to a great extent on the observations made by their Lordships of the Privy Council in the case of Jairam Das (supra) and on the basic conception that bail means a release of a person from one type of restraint, and his being handed over to the sureties which is another type of restraint. After a careful examination of the provisions of sections 496, 497 and 498 of the Code I have reached the conclusion that a person cannot be admitted to bail against whom a report has been lodged at the police station but who has not been placed in custody, or under any other form of restraint, or against whom no warrant for arrest has been issued. In the case of a person who is not under arrest, but for whose arrest warrants have been issued, bail can be granted under section 498 if he appears in Court and surrenders himself.” (Italics and underlining have been supplied for emphasis) In the same case A. S. M. Akram, J. had recorded the following observations in his lordship’s separate opinion: “On the 20th October, 1950, one Muhammad Sadiq made a report at the Police Station Khudian, District Lahore, to the effect that the respondent, Khusi Muhammad, and four others had abducted his daughter Mst. Mumtaz Begum on the 16th of October, 1950. The police took up investigation and arrested the four others, who were subsequently released on bail. No effort at arresting the respondent Khusi Muhammad was, however, made at any time, but Khushi Muhammad became apprehensive and in anticipation of his possible arrest made an application before the Sessions Judge of Lahore, praying that he may be "released on bail pending investigation and trial, if any". The Sessions Judge refused bail and rejected his application on the 15th November, 1950. Khushi Muhammad thereupon made an application to the High Court of Judicature at Lahore, purporting to be one under section 498, Cr. P. C. for 'bail before arrest'. The High Court relying upon the Full Bench Decision in the case of Hidayat Ullah Khan v. The Crown (supra) allowed the application by order dated the 14th of December, 1950, and directed that "if it is intended to arrest him (applicant), he should be released by the District Magistrate, if a bail bond is furnished to his satisfaction". Against this order the present appeal by the Crown has been preferred with our leave. Counsel for the appellant challenges before us the validity of the High Court order on the short ground that no bail can be granted unless the person seeking for it is under legal custody. In support he cites the cases of Muhammad Abbas and others v. Crown (supra) and Amir Chand and another v. The Crown (supra). His contention is that the view taken in the Full Bench case of Hidayat Ullah Khan v. The Crown is erroneous and cannot be given effect to. This case has been fully discussed and considered in the two cases mentioned above, in which a contrary view has been expressed and which has laid down that anticipatory bail is not permissible under the law. I do not think Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 36 it will serve any useful purpose to reproduce here the elaborate arguments contained in the judgments of these two cases. The decision to the effect that unless a man is under custody no question of bail can arise seems to me to be a correct decision on a proper construction of the relevant sections of the Code. The main argument advanced by counsel for the parties regarding the point under consideration was practically the same as in the cases referred to above. Learned counsel for the respondent urged before us, that the provision in section 498, Cr.P.C. “the High Court or Court of Session may, in any case, -------------- direct that any person be admitted to bail --------------”, was wide enough to cover the case of a person not under custody: that the word `appears' in sections 496 and 497 Cr.P.C., not being qualified in any manner, also conveys the same meaning: that the expression `admitted to bail' in section 498 Cr.P.C. does not imply prior custody: that this interpretation would not in any way militate against the observation of their Lordships of the Judicial Committee in the case of Lala Jai Ram Das v. The King Emperor (supra) "that sections 496 and 497 provide for granting bail to accused persons before trial and the other sections of the chapter (Chapter XXXIX) deal with matters ancillary or subsidiary to that provision" that the scope of section 498 in no way gets wider than that of sections 496 and 497 in case these sections are construed in the manner suggested. But, one cannot take merely a single word out of a section regardless of its context and setting and then construe the section in the light of the natural meaning which the word ordinarily bears. A section should be construed as a whole keeping in view the manifest purpose for which it is enacted. The expression "be released on bail" which occurs in both sections 496 and 497 provides a clue as to the real meaning of the word 'appears' in those sections. "Be released on bail" pre-supposes that the person must either be in actual custody or be liable to be taken into custody under a warrant of arrest already issued or ordered to be issued. In the latter events he must as a matter of course surrender before he can be released on bail. The word 'appears' therefore, must be limited in its meaning so as to apply only to the aforesaid persons. If this be correct then 'any person' in section 498 cannot be construed so as to enlarge the class of persons contemplated by sections 496 and 497. The expression "admitted to bail" in section 498 and 'released on bail' in sections 496 and 497 is obviously synonymous and to seek to differentiate between the two would be an attempt to make a distinction without difference. The Code itself at times gives directions that persons arrested may be "admitted to bail" (see sections 62, 307(2) and 500 of the Cr.P.C). In truth the word 'bail' signifies only a change of custody or control a change from the rigour of police custody or jail custody to the mild control of private persons (the sureties) upon certain terms and conditions. In Chapter XXXIX of the Cr.P.C. which includes sections 496, 497 and 498 the heading given is 'Of Bail'. The contention, therefore, of counsel for the respondent that a person under no sort of restraint and at full liberty to go anywhere he pleases, can be released or admitted to bail, does not appear to me to be a sound one. I do not think it is necessary to pursue this matter further as I fully agree in this particular respect with the decision in the cases of Muhammad Abbas and others v. The Crown and Amir Chand and another v. The Crown, and in the reasons given in support thereof. In my opinion neither section 498 nor any other section of the Cr.P.C. is applicable to the facts and circumstances of the present case. The order for bail dated the 14th December, 1950, must, therefore, be set aside as without jurisdiction.” (Italics and underlining have been supplied for emphasis) Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 37 M. Shahabuddin, J. had also recorded his own opinion in that case and this is what his lordship had held: “This appeal raises the question whether under section 498, Cr.P.C., the High Court or Court of Session can grant bail to a person against whom information has been given to the police that he has committed an offence for which he may be arrested, but who has not yet been placed under restraint by arrest or otherwise. --------------------- --------------------- It is true that the question now under consideration was not before Their Lordships, but the importance of this decision lies in this that, even though there was no provision for releasing on bail a convicted person whom special leave to appeal had been given, and the utility of the High Court having power to release such persons on bail was fully appreciated, it was not possible to take the expressions 'in any case' and 'any person' in section 498 in their literal meaning owing to the context in which they are used. It may be said that as Their Lordships have observed that 'any person' means any accused person and as a person whom a complaint alleging an offence is made is also an accused person, bail under section 498 can be granted to him. But Their Lordships have also laid down that the principal sections relating to bail are 496 and 497 and the rest of the sections in Chapter 39 deal with matters ancillary and subsidiary to sections 496 and 497. Under the latter two sections bail can be granted only to persons who are in some sort of custody and not to those who are at liberty. That being so, section 498 cannot be construed as applicable to persons who are under no restraint at all, for, if it is so interpreted it ceases to be a provision dealing with matters ancillary or subsidiary to sections 496 and 497. In my opinion therefore the expressions, 'any case' and 'any person' occurring in section 498 refer only to persons coming under sections 496 and 497. Mr. Qalandar Ali Khan appearing for the respondent argued that the appearance of a person before the High Court to ask for bail even when he is free amounts to his placing himself in legal custody. A similar contention was raised before the Full Bench by the petitioners in that case but Cornelius, J. repelled it observing as follows:- "Nowhere in law is there to be found any warrant for the belief that a Court possesses any power to take into its custody a person offering himself for the purpose if there be no justification in law for the Court to exercise the power of taking such person in custody." I agree with this observation and I also agree with the further observation of the learned Judge in this connection that it is reasonable to suppose that the Code has provided for the grant of bail to persons in relation to the power it has given to Courts to compel their attendance. In the present case the respondent when he appeared before the High Court was under no restraint whatever. The police had not taken any action, nor was there anything to compel this attendance before a Court. There is therefore no substance in the con- tention of the learned Advocate. Apart from section 498 being ancillary to sections 496 and 497, I fail to see how, in view of the connotation of the term 'bail' a person who is under no restraint whatever can be released on bail. 'Bail' is not defined in the Code, but it is clear from its dictionary Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 38 meaning and its definition in Wharton's Law Lexicon that it necessarily implies an existing custody. It is also clear that when a person is released on bail he is not altogether free but on the other hand passes into the custody of his sureties, in Foxhall v. Barnet (1854 L J New Series Vol. 23 p. 7) a case for damages for false imprisonment cited by Mr. Sleem, Lord Coleridge observed: "the admitting to bail is only change of custody. The bail might have retaken him and sent him back to prison at any time". The same principles exist in the law applicable to this country. For instance, section 308 refers to bail as detention. It provides that when the jury is discharged the accused shall be detained in custody or on bail. Under sections 501 and 502, if the sureties are found to be insufficient or wish to be discharged the person released on bail becomes liable to be committed to prison unless he furnished the required security. I therefore consider that subjection to some form of custody is a condition precedent to the grant of bail. --------------------- --------------------- The learned Judge has referred to the case of Johar Mull and others (supra) as supporting his view; but there, the present question was neither raised nor discussed. The contention on behalf of the Crown in that case appears to have been only that bail ought not to be allowed in cases of murder. The learned Judges of the Calcutta High Court no doubt observed at the outset that they had power under section 498 to direct that any person should be admitted to bail in any case, but in fact they proceeded on the basis that they could "revise the order of the Magistrate and say that he should have exercised his discretion in granting bail". In that case the Magistrate had issued a non-bailable warrant for the arrest of the petitioners who appeared before the High Court. That decision does not lay down that bail can be granted to a person even when he is under no restraint. On the other hand it seems to me that the petitioners in that case can be said to have appeared before the High Court in the sense in which the word `appear' is used in sections 496 and 497. As pointed out earlier mere appearance when there is no justification for the Court to take the person appearing into custody is not the appearance before Court required for the grant of bail, but when against the person who appears before a High Court a warrant for his arrest has already been issued by the Court of first instance it cannot be said that the High Court has no justification to take him into custody. In Muhammad Abbas v. Crown (supra) where the question for decision was the same as here. Tyabji C.J. has observed that the power conferred under section 498 is of a revisional character and that a higher Court should not interfere before the subordinate Court exercises its discretion. I am unable to accept this view. Ordinarily the higher Court may not interfere unless the petitioner has moved the Court of first instance, but I do not think that it can be said that there is a legal bar to a higher Court exercising a power in the first instance unless the section under which it acts states to that effect. Under section 498 the bail required by the police officer or Magistrate may be reduced by the High Court or Court of Session. There is nothing in the section to indicate that the High Court can reduce the bail only after the Session Court has declined to do so. That being so, I can see no objection to the High Court or Court of Session, like the Court of first instance, exercising the power of granting bail to a person against whom a non-bailable warrant has been issued, if he appears in Court and surrenders himself. In Muhammad Abbas v. Crown to which reference has been made above and in Amir Chand v. Crown the Full Bench decision of the Lahore High Court was considered and dissented from. In those cases the applicants for bail were persons under no restraint whatever. They had not been arrested by the police, nor had warrants been issued for their arrest. It was held that they could not be released Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 39 on bail under section 498. For reasons stated above, I consider that this conclusion and not the one reached by the Full Bench of the Lahore High Court is correct. Tyabji, C.J. in the Sind case has observed that the power of the High Court and Court of Session under section 498 is not affected by the limitations on the grant of bail imposed in section 497 and Cornelius, J. in the Full Bench case has expressed the same view. Khosla, J. of the East Punjab High Court, however, is of opinion that after the decision of the Privy Council in Lala Jairam Das's case (supra) that view cannot be regarded as correct. For the purposes of the present case I do not find it necessary to deal with this point, for, even if it is assumed that the power under section 498 is unfettered by the limitations imposed in section 497 the fact still remains that that power can be exercised only for granting bail, and as 1 have already stated some sort of custody is a condition precedent to the grant of bail.” (Italics and underlining have been supplied for emphasis) 27. The masterly analysis of the relevant legal question undertaken in the above mentioned case leaves no room for doubt that the matter of bail in a criminal case, be it a Challan case or a case arising out of a private complaint, is relevant only where the accused person concerned is either under actual custody/arrest or he genuinely and reasonably apprehends his arrest on the basis of some process of the law initiated either by a court or by the police. It is but obvious that issuance of process by a court through summons for appearance of an accused person before the court neither amounts to arrest of the accused person nor it can ipso facto give rise to an apprehension of arrest on his part and, thus, such accused person cannot apply for pre-arrest bail and even if he applies for such relief the same cannot be granted to him by a court. It may be important here to refer to the case of Muhammad Muddasar v. The State and others (2011 SCMR 1513) wherein the accused person against whom process had been issued by the trial court under section 204, Cr.P.C. through summons in a complaint case was admitted by this Court to pre-arrest bail because after issuance of summons the trial court had directed arrest of the accused person and through such direction of the trial court the accused person had come under a restraint. Ever since the case of The Crown v. Khushi Muhammad (PLD 1953 FC 170) the legal position is quite settled that both in a Challan case and a complaint case pre- arrest bail can be granted to an accused person only where there is a genuine and established apprehension of his imminent arrest in connection with such case with the effect of a virtual restraint on Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 40 such accused person and a reference in this respect may be made to the subsequent cases of Sadiq Ali v. The State (PLD 1966 SC 589), Chiragh Shah and another v. The State (1969 SCMR 134), Sh. Zahoor Ahmad v. The State (PLD 1974 Lahore 256), Murad Khan v. Fazal-e- Subhan and another (PLD 1983 SC 82), Jamal-ud-Din v. The State (1985 SCMR 1949), Meeran Bux v. The State (PLD 1989 SC 347), Ajmal Khan v. Liaqat Hayat (PLD 1998 SC 97) and Syed Muhammad Firdaus and others v. The State (2005 SCMR 784). It had also been held in those and many other cases that for admitting an accused person to pre-arrest bail in a criminal case the court concerned has to be satisfied that the intended or apprehended arrest of the accused person is actuated by ulterior motives or mala fide on the part of the complainant party or the police. When an accused person appears before a court which has issued summons for his appearance under section 204, Cr.P.C. on the basis of a private complaint the accused person is still unaware of the exact nature of the allegations leveled against him or about the basis of his summoning by the court and, therefore, he is not expected to be in any position at that stage to urge or substantiate before the court that the private complaint instituted against him is actuated by malice. Apart from that in the case of Sh. Zahoor Ahmad v. The State (PLD 1974 Lahore 256) Muhammad Afzal Zullah, J. (as his lordship then was) had summed up the basic conditions to be satisfied before exercise of jurisdiction of a court to allow pre-arrest bail under section 498, Cr.P.C. in all kinds of criminal cases and they are: “(a) that there should be a genuine proved apprehension of imminent arrest with the effect of virtual restraint on the petitioner; (b) that the petitioner should physically surrender to the court; (c) that on account of ulterior motives, particularly on the part of the police, there should be apprehension of harassment and undue irreparable humiliation by means of unjustified arrest; (d) that it should be otherwise a fit case on merits for exercise of discretion in favour of the petitioner for the purpose of bail. In this behalf the provisions contained in section 497, Cr.P.C. would have to be kept in mind; (e) that unless there is reasonable explanation, the petitioner should have earlier moved the Sessions Court for the same relief under section 498, Cr.P.C.” Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 41 Those conditions and requirements have consistently been insisted upon by all the courts in the country as prerequisites ever since and one of such prerequisites for pre-arrest bail is that the accused person applying for such relief must have a good case for bail on the merits and for having a good case for bail on the merits the requirements of section 497, Cr.P.C. have to be kept in mind which requirements are totally different from those contemplated by the provisions of sections 204 and 91, Cr.P.C. as was noticed by the Lahore High Court, Lahore in the case of Mazhar Hussain Shah (supra) and by this Court in the cases of Reham Dad and Syed Muhammad Firdaus (supra). Unfortunately all these critical aspects of the matter had completely escaped notice of the Honourable Judges deciding the cases of Noor Nabi and Luqman Ali (supra) and it had been held in those cases as a matter of course that after having been summoned by a court to appear before it the accused person concerned has to apply for bail or he has to be committed to custody. It is regrettable that before holding that their lordships’ attention had not been drawn towards the following observations made by Abdul Rashid, C.J. in the above mentioned case of The Crown v. Khushi Muhammad (PLD 1953 Federal Court 170): “If a person who appears before the High Court under section 497, is taken to be in the custody of the Court merely because of his appearance, it is difficult to imagine what would happen to him if the Court rejects his application for bail. He appeared in Court as a free man. Is the Court bound to keep him in custody and send him to jail simply because it rejects his application? If so, under what provision of the Code? The failure of his application would therefore deprive a suspected person of his freedom. What is the Court to do with him is another difficult question? He comes into Court protesting that he is innocent and there is no case against him. The Court decides not to accept his application for bail. He cannot be required to execute any bail bonds under the provisions of section 499 of the Code. It is clear, therefore, that the making of an application for bail and his presence in Court cannot be regarded as appearance under section 497 of the Code. In fact, in Hidayat Khan's case (supra) it was pointed out by the learned Judges of the High Court that nowhere in law was there to be found any warrant for the plea that a Court possesses any power to take into custody a person offering himself for the purpose if there be no justification for the Court to exercise the power of taking such person into custody. When a person appears before the High Court merely to present an application for bail, without any warrant for his arrest having been issued, he is not appearing in respect of any offence of which the High Court is taking cognizance at the time Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 42 and his appearance before the Court cannot be regarded as a surrender to custody.” To us those observations apply with equal force to a case of a private complaint wherein a process has been issued against an accused person by a court under section 204, Cr.P.C. through summons requiring him only to appear before the court. In such a case the police is not looking for arrest of such person and what is the authority of the court to order that he may be taken into custody upon refusal to require him to execute a bond for his future appearance before the court under section 91, Cr.P.C. or upon dismissal of his application for pre-arrest bail is a question which abegs an answer which is nowhere to be found in the Code of Criminal Procedure. In the said Code arrest of a person is an incident of investigation by the police and in a case of a private complaint there is no investigation involved unless an investigation is ordered by the court concerned under section 202, Cr.P.C. which can be done before the issue of process under section 204, Cr.P.C. If an investigation under section 202, Cr.P.C. is ordered by the court seized of a private complaint and if during such investigation the police or the investigating person intends to arrest the suspect then such suspect apprehending a restraint on him can, obviously, apply before the court for pre-arrest bail under section 498, Cr.P.C. and if he is actually arrested then he can apply for post-arrest bail under sections 496 or 497, Cr.P.C. It has already been observed above that if a person summoned under section 204, Cr.P.C. fails to submit a bond under section 91, Cr.P.C. to the satisfaction of the court or fails to provide the requisite sureties then he may be committed to custody but such custody would last for as long as he does not fulfill the said requirements and he is to be released from the custody the moment those requirements are fulfilled by him. Such custody would surely not be an arrest in connection with the offence in issue but such custody would only be in connection with compelling him to comply with the court’s requirements under section 91, Cr.P.C. It had not been appreciated in the cases of Noor Nabi and Luqman Ali that even in cases of the most heinous offences the police, not to speak of a court, is under no statutory obligation to necessarily and straightaway Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 43 arrest an accused person during an investigation as long as he is joining the investigation and is cooperating with the same. A reference in this respect may be made to sections 54 and 55, Cr.P.C., Article 4(1)(j) of the Police Order, 2002, Rules 24.1, 24.4, 24.7, 25.2(1), 25.2(2), 25.2(3) and particularly Rules 26.1, 26.2 and 26.9 of the Police Rules, 1934 and to the cases of Abdul Qayyum v. S.H.O., Police Station Shalimar, Lahore (1993 P.Cr.L.J. 91), Muhammad Shafi v. Muhammad Boota and another (PLD 1975 Lahore 729), Muhammad Siddiq v. Province of Sindh through Home Secretary, Karachi and 2 others (PLD 1992 Karachi 358), Mst. Razia Pervez and another v. The Senior Superintendent of Police, Multan and 5 others (1992 P.Cr.L.J. 131) and Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470). 28. There is yet another important legal aspect relevant to the issue at hand which had not been adverted to in the cases of Noor Nabi and Luqman Ali (supra) and that revolves around the provisions of section 498-A, Cr.P.C. which stipulate as follows: 498-A. No bail to be granted to a person not in custody, in Court or against whom no case is registered, etc. Nothing in section 497 or section 498 shall be deemed to require or authorize a Court to release on bail, or to direct to be admitted to bail, any person who is not in custody or is not present in Court or against whom no case stands registered for the time being and an order for the release of a person on bail, or a direction that a person be admitted to bail, shall be effective only in respect of the case that so stands registered against him and is specified in the order or direction. The provisions of section 498-A, Cr.P.C. tend to create an impression that the provisions of sections 497 and 498, Cr.P.C. may be relevant only to cases registered (presumably under section 154, Cr.P.C.) and it may be difficult for the purposes of section 498-A, Cr.P.C. to equate a private complaint, and that too only at the stage of issuance of process under section 204, Cr.P.C. through summons, with a case registered under section 154, Cr.P.C. If the impression so created is correct then the concept of bail may be alien particularly to such a stage of a private complaint and it may be a bond mentioned in section 91, Cr.P.C. which may be the only recourse possible in such a case. It may be true that the true scope of the provisions of section Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 44 498-A, Cr.P.C. is yet to attain judicial clarity in this specific regard but at the same time it is equally true that even this aspect of the matter had failed to receive any consideration at all in the cases of Noor Nabi and Luqman Ali. 29. At this stage a clarification may be in order. In his capacity as a Judge of the Lahore High Court, Lahore and speaking for a Full Bench of that Court one of us (Asif Saeed Khan Khosa, J.) had observed in the case of Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others (PLD 2005 Lahore 470) as under: "The powers available during an investigation, enumerated in, Part V, Chapter XIV of the Code of Criminal Procedure, 1898 read with section 4(1)(1) of the same Code, include the powers to arrest an accused person and to effect recovery from his possession or at his instance. Such powers of the investigating officer or the investigating person recognize no distinction between an investigation in a State case and an investigation in a complaint case. In the case of Noor Nabi and 3 others v. The State 2005 P.Cr.L.J. 505 a learned Judge- in-Chamber of the Honourable Sindh High Court has already clarified that section 91, Cr.P.C. deals only with procuring attendance of a person before the Court and after his availability before the Court the matter of his admission to bail or not rests in the hands of the Court and that the impression about automatic admission of an accused person to bail in a case of private complaint is erroneous." Those observations had been made in the year 2005 and the judgment in the case of Noor Nabi (supra) was the latest pronouncement on the subject at that time and, thus, the same was referred to in that judgment. The earlier unreported judgment of this Court in the case of Reham Dad (supra) handed down in the year 1987 was not brought to the notice of the Court on that occasion and the later judgment of this Court in the case of Syed Muhammad Firdaus (supra) rendered in the year 2005 had not yet been published in any law report or journal of the country and had, thus, escaped notice. In this background one of us (Asif Saeed Khan Khosa, J.) feels no hesitation in acknowledging that he stands better informed and more enlightened on the subject at present than he was in the year 2005. 30. As a result of the discussion made above we hold that the law propounded by the Lahore High Court, Lahore in the case of Mazhar Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 45 Hussain Shah v. The State (1986 P.Cr.L.J. 2359) and by this Court in the cases of Reham Dad v. Syed Mazhar Hussain Shah & others (Criminal Appeal No. 56 of 1986 decided on 14.01.1987) and Syed Muhammad Firdaus and others v. The State (2005 SCMR 784) was a correct enunciation of the law vis-à-vis the provisions of sections 204 and 91, Cr.P.C. and it is concluded with great respect and veneration that the law declared by the High Court of Sindh, Karachi in the case of Noor Nabi and 3 others v. The State (2005 P.Cr.L.J. 505) and by this Court in the case of Luqman Ali v. Hazaro and another (2010 SCMR 611) in respect of the said legal provisions was not correct. As held in the cases of Mazhar Hussain Shah, Reham Dad and Syed Muhammad Firdaus (supra) the correct legal position is as follows: (i) A process is issued to an accused person under section 204, Cr.P.C. when the court taking cognizance of the offence is of the “opinion” that there is “sufficient ground” for “proceeding” against the accused person and an opinion of a court about availability of sufficient ground for proceeding against an accused person cannot be equated with appearance of “reasonable grounds” to the court for “believing” that he “has been guilty” of an offence within the contemplation of sub-section (1) of section 497, Cr.P.C. Due to these differences in the words used in section 204 and section 497, Cr.P.C. the intent of the legislature becomes apparent that the provisions of section 91, Cr.P.C. and section 497, Cr.P.C. are meant to cater for different situations. (ii) If the court issuing process against an accused person decides to issue summons for appearance of the accused person before it then the intention of the court is not to put the accused person under any restraint at that stage and if the accused person appears before the court in response to the summons issued for his appearance then the court may require him to execute a bond, with or without sureties, so as to ensure his future appearance before the court as and when required. (iii) If in response to the summons issued for his appearance the accused person appears before the court but fails to submit the requisite bond for his future appearance to the satisfaction of the court or to provide the required sureties then the accused person may be committed by the court to custody till he submits the requisite bond or provides the required sureties. We may add that (iv) If the process issued by a court against an accused person under section 204, Cr.P.C. is through a warrant, bailable or non- bailable, then the accused person may be under some kind or form of restraint and, therefore, he may apply for his pre-arrest bail if he so chooses which may or may not be granted by the court depending upon the circumstances of the case but even in such a case upon appearance of the accused person before the court he may, in the discretion of the court, be required by the court to execute a bond for Criminal Appeal No. 19 of 2012, Criminal Appeal No. 32-L of 2012, Criminal Appeal No. 82 of 2014, Criminal Petition No. 397 of 2013 & Criminal Petition No. 455 of 2013 46 his future appearance, with or without sureties, obviating the requirement of bail. 31. Having declared the correct legal position in respect of the provisions of sections 204 and 91, Cr.P.C. we direct the Office of this Court to fix the titled appeals and petitions for hearing before appropriate Benches of the Court for their decision on the basis of their respective merits in the light of the law declared through the present judgment. Judge Judge Judge Judge Judge Announced in open Court at Islamabad on: 03.10.2014 Judge Islamabad 03.10.2014 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Maqbool Baqar Mr. Justice Syed Mansoor Ali Shah Criminal Appeals No. 201 and 202 of 2018 (Against the judgment dated 28.03.2017 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in criminal Revisions No. 382 and 428 of 2016) Syed Azhar Hussain Shah (in Cr. A. 201 of 2018) Rafi Ullah Jan (in Cr. A. 202 of 2018) …Appellants versus The State, etc. (in both cases) …Respondents For the appellants: Mr. Hassan Raza Pasha, ASC (in Cr. A. 201 of 2018) Mr. Asadullah Khan Chamkani, ASC (in Cr. A. 202 of 2018) For the complainant: Malik Waheed Anjum, ASC (in both cases) On Court’s Notice: Syed Nayyab Hussain Gardezi, Deputy Attorney-General for Pakistan Barrister Ghulam Shabbir Shah, Additional Advocate-General, Sindh Mr. Salim Akhtar, Additional Prosecutor-General, Sindh Mr. Ayaz Sawati, Additional Advocate-General, Balochistan Mr. Qasim Ali Chohan, Additional Advocate-General, Punjab Mr. Ahmed Raza Gillani, Additional Prosecutor-General, Punjab Mr. Zahid Yousaf Qureshi, Additional Advocate-General, Khyber Pakhtunkhwa Syed Baqaq Shah, State Counsel (in both cases) Date of hearing: 10.01.2019 Criminal Appeals No. 201 and 202 of 2018 2 JUDGMENT Asif Saeed Khan Khosa, J.: Criminal Miscellaneous Applications No. 3 & 8 of 2019 and 2103, 2074, 2075, 2076, and 2077 of 2018 in Criminal Appeal No. 201 of 2018 These miscellaneous applications are allowed and the documents appended therewith are permitted to be brought on the record of the main appeal. Disposed of. Criminal Appeal No. 201 of 2018 2. Syed Azhar Hussain Shah appellant was booked and tried in case FIR No. 66 registered at Police Station Saddar Talagang, District Chakwal on 06.05.2014 in respect of an offence under section 324, PPC read with section 34, PPC and upon completion of the trial he was convicted and sentenced by the trial court for offences under sections 324, 334 and 336, PPC. For the offence under section 324, PPC the appellant was sentenced by the trial court to rigorous imprisonment for seven years and a fine of Rs. 2,00,000/- or in default of payment thereof to undergo simple imprisonment for one year. On appeal the Court of Session upheld and maintained all the convictions and sentences of the appellant recorded by the trial court except the sentence passed against him for the offence under section 324, PPC which was reduced by the Court of Session to rigorous imprisonment for four years and a fine of Rs. 1,00,000/- or in default of payment thereof to undergo simple imprisonment for six months. A revision petition filed by the appellant before the High Court in that regard was subsequently dismissed and the convictions and sentences of the appellant recorded by the Court of Session were upheld and maintained. Hence, the present appeal by leave of this Court granted on 16.03.2018. 3. On 16.03.2018 leave to appeal had been granted by this Court and various questions were framed which needed consideration. The said questions are reproduced below: Criminal Appeals No. 201 and 202 of 2018 3 “(i) Whether Magistrate empowered u/s 30 read with section 35 Cr.P.C. is competent to try offences which are punishable with Diyat or Arsh which has not been specifically mentioned therein because these are entirely new punishments provided under the new dispensation of justice after the introduction of Qisas and Diyat laws based on Islamic injunction, now permanent part of the PPC. (ii) Whether the trial held by the Magistrate in these two petitions awarding Diyat and Arsh respectively, in case the first point is answered in the negative, would not become corum non judice and without jurisdiction and the conviction so awarded would be liable to set at naught. (iii) The learned Additional Prosecutor General pointed out that vide Act No. II of 1997 the punishment by way of Arsh and Daman was for the first time included through Amendment Act in clause A of section 32 of Cr.P.C. conferring jurisdiction on the Magistrate empowered u/s 30 to award such punishment and whether the Diyat is thus not excluded because after the new amendment it was not included to fall within the jurisdiction of the Magistrate so empowered. (iv) Whether the organs specified in different provisions of the PPC with regard to partial pairment or complete impairment of organs or pair of organs, the Diyat amount can exceed fixed for Qatl-e-Amad by the government from time to time and which Court have jurisdiction in that case too. (v) Whether the organs specifically mentioned in the relevant chapter of the PPC for the purpose of awarding Diyat, Arsh or Daman would exclude the internal organs in the human body in case it is injured, if the injuries enter in the cavities of trunk of human body i.e. cranium cavity, chest cavity and abdominal cavity. And whether these organs can be brought at par with those specifically mentioned in different provisions of the PPC and if not, then how a punishment can be awarded for that and whether the provision of sections 336 and 337-D would resolve the dispute or not.” With the assistance of the learned counsel for the parties and the learned Law Officers we have attended to the said questions. 4. According to the Second Schedule to the Code of Criminal Procedure, 1898 an offence under section 324, PPC is triable by a Court of Session and the said Schedule had been appended to the Code by virtue of the provisions of section 28 of that Code whereas section 30 of the said Code clearly provided that notwithstanding anything contained in sections 28 and 29 of the Code the Provincial Government may invest any Magistrate of the first class with power to try as a Magistrate all offences not punishable with death. In the case in hand the trial of the appellant was conducted by a Magistrate invested with such power under section 30 of the Criminal Appeals No. 201 and 202 of 2018 4 Code and, thus, there was no jurisdictional infirmity vis-à-vis the authority of the concerned Magistrate to try the appellant for offences under sections 324, 334 and 336, PPC. It may be true that section 34 of the Code provides that the Court of a Magistrate specially empowered under section 30 of the Code may pass any sentence authorized by the law except the sentence of death or imprisonment for a term exceeding seven years but that limitation on the sentence to be passed by a Magistrate only regulates the punishment and not the jurisdiction of the Magistrate to try an offence. In the order granting leave to appeal some reference had also been made to the issue of payment of Diyat vis-à-vis trial of a case by a Magistrate but we note that by virtue of the provisions of section 299, PPC Diyat is relevant only to a case of death of a victim and the quantum of Diyat is governed by the provisions of section 323, PPC whereas the case in hand was a case regarding offences under sections 324, 334 and 336, PPC wherein the victim had actually survived. In this view of the matter any issue regarding Diyat appears to be hardly relevant to the case in hand. These observations made by us take care of most of the questions raised in the order granting leave to appeal and we have also noticed in this respect that some observations made in the case of Allah Wasaya and others v. Sikandar Hayat and others (2012 SCMR 193) had also clarified the relevant issues mentioned in the order granting leave to appeal . 5. As regards the merits of the case of the appellant we have found that the occurrence in this case had taken place in broad daylight, an FIR in that respect had been lodged with sufficient promptitude and the appellant had been named in the FIR as the principal perpetrator of the alleged offences and firearm injuries on the thigh, penis and below the belly of the victim had been attributed to him therein. The eyewitnesses produced by the prosecution included the injured victim namely Syed Ahsan Raza Shah (PW1) and the ocular account furnished by the victim and Syed Muhammad Raza (PW2) was consistent and the same had found full support from the medical evidence. Both the courts below had undertaken an exhaustive analysis of the evidence Criminal Appeals No. 201 and 202 of 2018 5 available on the record and had then concurred in their conclusion regarding guilt of the appellant having been proved to the hilt and upon our own independent evaluation of the evidence we have not been able to take a view of the matter different from that concurrently taken by the courts below. The appellant has already been treated leniently in the matter of his sentences. We, however, note that his sentences of imprisonment had not been ordered to run concurrently to each other which relief ought to have been extended to him. 6. For what has been discussed above this appeal is dismissed, the convictions and sentences of the appellants recorded by the Court of Session are upheld and maintained and it is clarified that the benefit under section 382-B, Cr.P.C. shall be extended to the appellant and all his sentences of imprisonment shall run concurrently to each other. This appeal is disposed of in these terms. Criminal Appeal No. 202 of 2018 7. The legal questions raised in the order granting leave to appeal have been answered by us today in the connected Criminal Appeal No. 201 of 2018. In view of the judgment rendered in the said connected appeal no occasion has been found by us for interference with the impugned orders passed by the courts below in the present case. This appeal is, therefore, dismissed. Judge Judge Judge Islamabad 10.01.2019 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Dost Muhammad Khan Mr. Justice Syed Mansoor Ali Shah Criminal Appeal No. 206 of 2016 (Against the judgment dated 22.02.2016 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No. 372 of 2011 and Murder Reference No. 69 of 2011) M s t . N a z i a A n w a r …Appellant v e r s u s T h e S t a t e , e t c . …Respondents For the appellant: Raja Ikram Ameen Minhas, ASC Mrs. Rubina Mahmood Khan, ASC Mr. S. A. Mehmood Khan Saddozai, ASC Chaudhry Akhtar Ali, AOR For the State: Mr. Muhammad Jaffar, Deputy Prosecutor-General, Punjab Date of hearing: 13.02.2018 JUDGMENT Asif Saeed Khan Khosa, J.: Mst. Nazia Anwar appellant had allegedly caused multiple injuries to her friend namely Mst. Fahmeeda Bibi with the use of a dagger inside the house of the deceased as well as of her mother namely Mst. Sadiqa Bibi complainant in Line No. 2, Quaid-e-Azam Colony near Dhamial Camp, Rawalpindi in the area of Police Station Saddar Bairooni, District Rawalpindi at about 10.00 A.M. on 12.10.2010 in the backdrop of a motive according to which the appellant had borrowed a sum of Rs. 5,000/- from the deceased and a heated exchange had taken place between them over demand of repayment of that loan. With the said allegations the appellant was booked in case FIR No. 640 registered at the above mentioned Police Station at about mid-day on the same day and after a Criminal Appeal No. 206 of 2016 2 regular trial the appellant was convicted by the trial court for an offence under section 302(b), PPC and was sentenced to death and to pay compensation which conviction and sentence of the appellant were subsequently upheld and confirmed by the High Court. Hence, the present appeal by leave of this Court granted on 21.04.2016. 2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise. 3. The occurrence in this case had taken place in broad daylight and inside the house of Mst. Sadiqa Bibi complainant. An FIR in respect of the alleged occurrence had been lodged with reasonable promptitude wherein the present appellant was named as the sole perpetrator of the alleged murder. Mst. Sadiqa Bibi complainant (PW2) was a natural witness of the occurrence being an inmate of the house wherein the occurrence had taken place and the time of occurrence was such that the complainant was likely to be present in her house at that time. The complainant had absolutely no reason to falsely implicate the appellant in the murder of the complainant’s daughter who was also a friend of the appellant. The record of the case shows, and it is so recorded in the FIR itself, that the appellant had been apprehended at the spot inside the relevant house and was later on handed over to the local police. A blood-stained dagger had also been recovered from the place of occurrence. The medical evidence had provided full support to the ocular account furnished by Mst. Sadiqa Bibi, complainant (PW2). Both the courts below had undertaken an exhaustive analysis of the evidence available on the record and had then concurred in their conclusion regarding guilt of the appellant having been established to the hilt and upon my independent evaluation of the evidence I have not been able to take a view of the matter different from that concurrently taken by the courts below. There can conceivably be many theories as to why the appellant was found inside the house of the complainant with a baby-boy aged about four months but all such theories lie within the realm of conjectures which have no place in the criminal law. There is Criminal Appeal No. 206 of 2016 3 also little room available for drawing an inference in that regard as some foundational facts necessary for drawing an inference are missing in that respect. 4. I have particularly attended to the sentence of death passed against the appellant and have noticed in that context that the motive set up by the prosecution had remained far from being established. According to the FIR as well as the statement of the complainant the motive was based upon borrowing of a sum of Rs. 5,000/- by the appellant from the deceased and on the issue of repayment of that loan a heated exchange had taken place between the appellant and the deceased. Mst. Sadiqa Bibi complainant (PW2) was the only witness produced by the prosecution regarding the alleged motive but in her deposition made before the trial court the complainant had admitted that the appellant and the deceased were on very good and friendly terms, no date or time of borrowing of the relevant amount by the appellant from the deceased had been specified by the complainant, the complainant was not present when the money had been borrowed by the appellant from the deceased, no date, time or place of the altercation taking place between the appellant and the deceased over repayment of the borrowed amount had been specified by the complainant and admittedly the complainant was not present when the said altercation had taken place. In these circumstances it is quite obvious to me that the motive asserted by the prosecution had remained utterly unproved. The law is settled by now that if the prosecution asserts a motive but fails to prove the same then such failure on the part of the prosecution may react against a sentence of death passed against a convict on the charge of murder and a reference in this respect may be made to the cases of Ahmad Nawaz v. The State (2011 SCMR 593), Iftikhar Mehmood and another v. Qaiser Iftikhar and others (2011 SCMR 1165), Muhammad Mumtaz v. The State and another (2012 SCMR 267), Muhammad Imran @ Asif v. The State (2013 SCMR 782), Sabir Hussain alias Sabri v. The State (2013 SCMR 1554), Zeeshan Afzal alias Shani and another v. The State and another (2013 SCMR 1602), Naveed alias Needu and others v. The State and others (2014 SCMR 1464), Muhammad Nadeem Waqas and another v. The State Criminal Appeal No. 206 of 2016 4 (2014 SCMR 1658), Muhammad Asif v. Muhammad Akhtar and others (2016 SCMR 2035) and Qaddan and others v. The State (2017 SCMR 148). After going through the entire record of the case from cover to cover and after attending to different aspects of this case I have found that although it is proved beyond doubt that the appellant was responsible for the murder of the deceased yet the story of the prosecution has many inherent obscurities ingrained therein. It is intriguing as to why the appellant would bring her four months old baby-boy to the spot and put the baby-boy on the floor and then start belabouring the deceased with a dagger in order to kill her. I have, thus, entertained no manner of doubt that the real cause of occurrence was something different which had been completely suppressed by both the parties to the case and that real cause of occurrence had remained shrouded in mystery. Such circumstances of this case have put me to caution in the matter of the appellant’s sentence and in the peculiar circumstances of the case I have decided to withhold the sentence of death passed against the appellant. 5. For what has been discussed above this appeal is dismissed to the extent of the appellant’s conviction for the offence under section 302(b), PPC but the same is partly allowed to the extent of her sentence of death which is reduced to imprisonment for life. The order passed by the trial court regarding payment of compensation by the appellant to the heirs of the deceased as well as the order regarding imprisonment in default of payment of compensation are, however, maintained. The benefit under section 382-B, Cr.P.C. shall be extended to the appellant. (Asif Saeed Khan Khosa) Judge I respectfully disagree with my learned brother Asif Saeed Khan Khosa, J. and have recorded my separate reasons. (Dost Muhammad Khan) Judge Criminal Appeal No. 206 of 2016 5 I agree with my learned brother Asif Saeed Khan Khosa, J. (Syed Mansoor Ali Shah) Judge JUDGMENT OF THE COURT By a majority of two against one (Dost Muhammad Khan, J. dissenting) this appeal is dismissed to the extent of the appellant’s conviction for the offence under section 302(b), PPC but the same is partly allowed to the extent of her sentence of death which is reduced to imprisonment for life. The order passed by the trial court regarding payment of compensation by the appellant to the heirs of the deceased as well as the order regarding imprisonment in default of payment of compensation are, however, maintained. The benefit under section 382-B, Cr.P.C. shall be extended to the appellant. This appeal is disposed of in these terms. (Asif Saeed Khan Khosa) Judge (Dost Muhammad Khan) Judge (Syed Mansoor Ali Shah) Judge Islamabad 13.02.2018 Not approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE YAHYA AFRIDI MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE MUHAMMAD ALI MAZHAR CRIMINAL APPEAL NO. 208 OF 2022 (On appeal against the judgment dated 28.01.2020 passed by the High Court of Sindh, Bench at Sukkur in Criminal Jail Appeal No. D-172/2019) Zain Ali … Appellant VERSUS The State … Respondent For the Appellant: Mr. Muhammad Shabbir Rajput, ASC For the State: Raja Inam, Special Prosecutor, ANF Mr. Ehtisham ul Haq, Special Prosecutor, ANF Date of Hearing: 29.05.2023 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Appellant was tried by the learned Additional Sessions Judge-III, Sukkur in terms of the case registered vide FIR No. 08 dated 25.03.2013 under Section 9(c) of the Control of Narcotic Substances Act, 1997, at Police Station ANF, Sukkur, as contraband charas weighing 563 kilograms and opium weighing 1500 grams was recovered from the secret cavities of the vehicle, which the appellant was driving. The learned Trial Court vide its judgment dated 30.07.2019 convicted the appellant under Section 9(c) of the Control of Narcotic Substances Act, 1997, and sentenced him to imprisonment for life. He was also directed to pay a fine of Rs.100,000/- or in default whereof to further undergo SI for one year. Benefit of Section 382-B Cr.P.C. was also extended to him. In appeal the learned High Court maintained the conviction and sentences recorded against the appellant by the learned Trial Court. Criminal Appeal No. 208/2022 2 2. The prosecution story as given in the impugned judgment reads as under:- “2. Succinctly, the prosecution case as depicted in the FIR is that on 25-03-2013 at about 7-30 am, at Old Toll Plaza situated at National Highway, Rohri, a team of ANF police headed by Inspector Tahir Ahmed secured 563 kilograms charas in shape of 563 foil packed packets, each containing two slabs and 1500 grams Opium in shape of three packets from the secret cavities of Vigo Hilux Toyota vehicle bearing No.CS-8258. During the personal search of the accused, a cash amount of Rs. 5300/-, one Watan card, some other cards, two mobile phones, 8 mobile sims, one wrist watch, one wallet of black colour were recovered from the possession of accused in presence of mashirs namely HC Ayaz Ahmed and PC Shoukat Ali. From further search of the vehicle, its registration book in the name Gazali Textile Mill. One Photostat copy of CNIC in the name Shahbaz Ghazi was also recovered in presence of mashirs namely HC Ayaz Ahmed and PC Shoukat Ali. Accused further disclosed that the alleged contraband material belongs to one Zubair Ahmed, who is resident of District Sanghar. Such mashirnama of arrest and recovery was prepared at the spot in the presence of mashirs. Thereafter the accused alongwith recovered case property and vehicle were brought to Police Station ANF Sukkur, where the instant case for an offence punishable u/s 9(c) of Control of Narcotic Substance Act, 1997, was registered against him on behalf of the State. On completion of the usual formalities, the ANF police submitted report u/s173 Cr.PC before the competent Court of law.” 3. After completion of investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. In order to prove its case the prosecution produced two witnesses. When examined under Section 342 Cr.P.C., the appellant stated that he is innocent and has been falsely implicated in the case. However, he did not make his statement on oath under Section 340(2) Cr.P.C in disproof of allegations leveled against him. He also did not produce any evidence in his defence. 4. Learned counsel for the appellant contended that the appellant has been falsely implicated in this case and the Police has planted a fake case upon him. Contends that the narcotic was allegedly recovered from the appellant in the broad daylight in a busy thoroughfare but none from the public was associated in the case to depose against him. Contends that the prosecution could not prove safe custody of the allegedly recovered narcotics and its safe transmission to the Police Station and then to the Laboratory for chemical analysis, therefore, the same cannot be used against the appellant to sustain his conviction. Lastly Criminal Appeal No. 208/2022 3 contends that the reasons given by the learned High Court to sustain conviction of the appellant are speculative and artificial in nature, therefore, the impugned judgment may be set at naught. 5. On the other hand, learned Law Officer has supported the impugned judgment. He contended that the appellant was caught red handed while transporting a huge quantity of narcotics, the Police officials had no enmity to falsely involve him in the present case and the safe custody of the narcotic and then its safe transmission to the Chemical Examiner has been proved to the hilt, therefore, he does not deserve any leniency by this Court. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on record. 7. As per the prosecution story, on a spy information, a team of ANF officials established a picket on 25.03.2013 at Old Toll Plaza, National Highway, Rohri and at about 07:30 am they intercepted a Vigo Hilux Toyota vehicle bearing registration No. CS-8258, which was being driven by the appellant Zain Ali. From the secret cavities of the vehicle, 563 kilograms of charas in shape of 563 foil packed packets, each containing two slabs and 1500 grams opium in the shape of three packets were recovered. The whole recovered opium was sealed in one parcel whereas 40/40 kilograms of charas was separated and sealed in separate parcels. At the same time, 43 kilogram and 40 kilogram charas was separated and sealed in two parcels for the purpose of chemical examination. To prove the recovery, the prosecution mainly relied upon the statements of Inspector Tahir Ahmed, complainant (PW-1) and Aijaz Ali Shah, PC (PW-2). Both these witnesses have narrated the prosecution story in a natural manner and remained consistent throughout and their testimony could not be shattered by the defence despite lengthy cross-examination. The said witnesses had no enmity with the appellant to falsely implicate him in the present case. Even otherwise a huge quantity of 563 kilograms of contraband charas and 1500 grams of opium in no circumstances can be planted by the Investigating Officer of his own. As already stated above, Criminal Appeal No. 208/2022 4 the whole case hinges upon the statement of the official witnesses and no independent witness was associated while conducting the search of the vehicle. However, it is well settled that testimonies of the police personnel are required to be treated in the same manner as the testimony of any other witness and there is no principle of law that without corroborating by the independent witnesses, their testimonies cannot be relied upon. This Court has time and again held that reluctance of general public to become witness in such like cases has become judicially recognized fact and there is no way out to consider statement of official witnesses, as no legal bar or restriction has been imposed in such regard. The presumption that a person acts honestly applies, as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. We have minutely scrutinized the statements of the above witnesses and found them to be consistent, cogent and reliable and there is hardly any discrepancy regarding the recovery of narcotics from the vehicle, which was being driven by the appellant. Moreover, learned counsel for the appellant could not elicit any material contradiction in their statements so as to discredit their testimony. The prosecution has successfully established its case by further proving that the contraband so recovered from the possession of the appellant was weighed, packed and then sent for chemical examination, which on examination was found to be charas. The learned counsel for the appellant had argued that there are major contradictions in the statements of prosecution witnesses, which shatter not only their credibility but the very veracity of their statements. However, we could not find that there is any contradiction, which will impeach or affect the credibility of the prosecution witnesses. It is also settled that minor contradictions, inconsistencies, embellishments or improvements on trivial matters, which do not affect the core of the prosecution case, should not be made a ground, on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Mere marginal variations in the statement of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by Criminal Appeal No. 208/2022 5 the witness earlier. While appreciating the evidence of a witness, the approach must be whether evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the discrepancies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. However, as stated above, the prosecution witnesses of recovery remained firm on each and every material particular of the prosecution story and their testimony could not be shaken. 8. During the course of arguments, learned counsel for the appellant had argued that one Suleman Haider, Constable, who deposited the sample parcels in the office of Chemical Examiner was not produced in evidence, therefore, the safe custody of the allegedly recovered narcotic and its safe transmission is not established. However, this argument is of no help to the appellant. A bare perusal of the record shows that a huge quantity of 563 kilograms charas and 1500 grams opium was recovered from the appellant on 25.03.2013. The Investigating Officer separated 83 kilograms of charas in two separate parcels of 43/40 kilogram and sealed the same. The whole recovered 1500 grams opium was also separated and sealed in a parcel. All the three sealed sample parcels were sent to the office of Chemical Examiner on the very next day i.e. 26.03.2013. The report of the Chemical Examiner testifies this fact that the three sealed parcels were received on the said date, which were found to be charas and opium. It also came in evidence that the whole recovered narcotics, except the parcels which were sent to the Chemical Examiner, was produced in Court in sealed parcels during trial as a case property. Although, Tahir Ahmed, Inspector/I.O. was cross-examined by the defence at length but no question was put to him, which could suggest that either the whole recovered narcotics was not produced in Court or the same was not sealed in separate parcels as stated by him. Similarly, no question was put to him, which could suggest that the recovered narcotics was planted on the Criminal Appeal No. 208/2022 6 appellant. In this view of the matter, it can safely be said that the safe chain of custody of the recovered narcotics was not compromised at all. Even otherwise, in Liaquat Ali Vs. The State (2022 SCMR 1097), this Court candidly held that the Control of Narcotic Substances (Government Analysts) Rules, 2001 virtually place no bar on the Investigating Officer to send the samples within a certain/specified period of time. These Rules are stricto sensu directory and not mandatory in any manner. It does not spell as to whether in case of any lapse, it would automatically become instrumental to discard the whole prosecution case. The Rules cannot control the substantive provisions of the Control of Narcotic Substances Act, 1997 and cannot in any manner frustrate the salient features of the prosecution case, which otherwise hinges upon (i) receipt of information, (ii) action by the concerned law enforcing agency, (iii) recovery of contraband narcotics, (iv) the report of chemical examiner regarding analysis of the recovered contraband, (v) the finding of fact by the courts below after recording of evidence i.e. (a) witnesses of the raiding party, (b) the recovery witnesses, (c) Investigating Officer and all other attending circumstances. Even otherwise, in terms of Section 29 of the Control of Narcotic Substances Act, 1997, manner and standard of proof in cases registered under the Act is slightly different as in terms of the said Act the accused is presumed to have committed the offence unless the contrary is proved. 9. The menace of drugs has taken alarming dimensions in this country partly because of the ineffective and lackadaisical enforcement of the laws and procedures and cavalier manner in which the agencies and at times Courts of the country address a problem of such serious dimensions. Studies based on conferences and seminars have very often shown that the menace is deep rooted. This menace is a great threat to a peaceful society and is affecting many lives especially the youngsters, therefore, immediate steps are required to be taken to curb these nefarious activities. The proceeds of narcotics are largely utilized in anti- state/terrorist activities, which this country is facing since decades. When the prosecution is able to prove its case on its salient features then un- Criminal Appeal No. 208/2022 7 necessary technicalities should not be allowed to hamper the very purpose of the law on the subject. The close analysis of the whole prosecution evidence i.e. the recovery of huge quantity of narcotics, the happening of the occurrence in broad daylight, separating the samples from each packet in a prescribed manner and sending them to the Chemical Examiner, report of the Chemical Examiner and the statements of the prosecution witnesses when evaluated conjointly leaves no room to come to a different conclusion than what has been arrived at by the learned High Court. The learned High Court has correctly appreciated the material aspects of the case and the conclusions drawn are in line with the guidelines enunciated by this Court on the subject. Learned counsel for the appellant has not been able to point out any legal or factual error in the impugned judgment, which could be made basis to take a different view from that of the learned High Court. 10. For what has been discussed above, this appeal having no merit is accordingly dismissed. JUDGE JUDGE JUDGE Islamabad, the Announced on 24.07.2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmed Malik Mr. Justice Sajjad Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.20 of 2018 (Against judgment dated 19.01.2015 passed by Lahore High Court in Criminal Appeal No.2264 of 2011 as well as CSR No.46-T of 2011) Muhammad Tariq Ramzan …Appellant(s) Versus The State …Respondent(s) For the Appellant: Mr. Sagheer Ahmed Qadri, ASC For the State: Mirza Abid Majeed, Deputy Prosecutor General Punjab Date of hearing: 09.10.2019. JUDGMENT Qazi Muhammad Amin Ahmed, J. Muhammad Tariq Ramzan, appellant tried alongside his real brothers Zahid Ramzan and Abid Ramzan, since acquitted, was returned a guilty verdict by the learned Special Judge Anti-Terrorism Court-I, Faisalabad, in the absence of Tahir alias Mana and Nazar Abbas, co-accused, since proceeded against as proclaimed offenders; alongside Tahir alias Mana, he is attributed fire shots to Muhammad Adeel deceased within the remit of Police Station Mansoorabad, District Faisalabad on 16.8.2011 at 2:30 p.m. It is prosecution’s case that the accused used blasphemous and derogatory language against the holy personage and as the deceased admonished them, they harboured a grudge, finally settled on the fateful day. The accused were sent to face trial on both charges separately and it is admitted at all hands that they have been acquitted from the charges of Criminal Appeal No.20 of 2018 2 blasphemy. According to the prosecution, the appellant along with Tahir alias Mana targeted the deceased with multiple fire shots; autopsy report confirmed six entry wounds with corresponding exits. Arrested on 29.8.2011, the appellant pursuant to a disclosure, led to the recovery of .30 caliber pistol P-3, found wedded with two of the casings secured from the spot. Upon conclusion of investigation, indicted before the learned Special Judge, he alongside the co-accused claimed trial which culminated into his conviction with penalty of death on two counts vide judgment dated 15.12.2011; his appeal failed on all counts, however, with alteration of penalty of death into imprisonment for life vide impugned judgment dated 19.01.2015, vires whereof are being challenged by leave of the Court. 2. Acquittal of co-accused as well as failure of case of blasphemy besides the improbable presence of the witnesses at the relevant time have been pressed into service by Mr. Sagheer Ahmad Qadri, ASC to argue that it would be unsafe to maintain the judgment; contrarily defended by the learned Law Officer. 3. Heard. Record perused. 4. The prosecution case is primarily structured upon ocular account furnished by Muhammad Sarwar and Muhammad Iqbal, PWs; we are not impressed by the argument that they had no business at the crime scene, a small grocery outlet in the village; both of them from the same neighbourhood, i.e. Chak No.203/RB, Mananwala Faisalabad and as such in the absence of strong and positive evidence, to suggest the contrary, their presence cannot be viewed with suspicion. On an independent analysis of their statements, they are found in a comfortable unison on all the salient details of the occurrence as well as the issues collateral therewith nor there is even an oblique reference to any animus, propelling them to falsely implicate the appellant in a small locality within broad daylight. Though held inconsequential by the High Court, nonetheless, weapon recovered on appellant’s disclosure is found consistent with the nature of injuries suffered by the deceased. Notwithstanding, prosecution’s failure on the charges of blasphemy, the ocular account itself independently is Criminal Appeal No.20 of 2018 3 found by us sufficient to sustain the charge. The High Court has already exercised caution with regard to quantum of sentence to be exacted from the appellant. The evidence points inexorably upon appellant’s culpability, leaving no space to entertain any hypothesis of his innocence, however, with failure of charges of blasphemy, the motive part of prosecution case plunges into darkness that casts away the charge under section 7(a) of the Anti Terrorism Act, 1997. Consequently, while maintaining appellant’s conviction under clause (b) of Section 302 of the Pakistan Penal Code, 1860, he is acquitted from the charge under Section 7 of the Act ibid; amount of compensation and consequences in the event of default are kept intact with benefit of section 382-B of the Code of Criminal Procedure, 1898. Criminal appeal is partly allowed in the terms noted above. Judge Judge Judge Islamabad 9th October, 2019 Not Approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE FAISAL ARAB MR. JUSTICE KHILJI ARIF HUSSAIN CRIMINAL APPEAL NO. 21-K OF 2016 (On appeal against the judgment dated 10.11.2015 passed by the High Court of Sindh, Karachi in Criminal Appeal No. 175/2014) The State/ANF … Appellant VERSUS Muhammad Arshad … Respondent For the Appellant: Mr. Habib Ahmed, ASC For the Respondent: Raja Aftab, ASC Mr. A.S.K. Ghori, AOR along-with respondent in person Date of Hearing: 06.12.2016 JUDGMENT FAISAL ARAB, J.- Based on a spy information that the respondent would smuggle heroin abroad, the respondent was arrested from Karachi Airport just before taking a flight to Bangkok. He was first taken to nearby Nihal Hospital in Malir for taking X-Ray of his abdomen which disclosed that it contained foreign bodies. He was then brought to Jinnah hospital, Karachi in the custody of ANF police for further examination. It has come on the record that a doctor administered Lactulose syrup and Omerprazole capsule and, thereafter, the respondent excreted 50 capsules, which after chemical examination were found to contain 550 grams of heroin powder. He was tried by Special Court-II, ANF, Karachi, found guilty and sentenced to suffer RI for five years. He was also fined Rs.50,000/- and in case of default in the payment of Criminal Appeal No. 21-K/2016 2 fine, he was to undergo imprisonment for a further period of six months. 2. The Respondent challenged his conviction in appeal before the High Court and was acquitted. The main reasons that prevailed with the learned Judges of the High Court were that the Dr. Inam Khan, who appeared as PW-5, did not support the prosecution version; that the respondent did not excrete heroin filled capsules in presence of the doctor; that no doctor of Nihal hospital or paramedic staff, where the respondent was initially taken for X-Ray after his arrest, was examined by the Investigating Officer or produced before the Trial Court. Such omissions led the High Court to believe that no independent, trustworthy or confidence inspiring evidence was brought on record to connect the respondent with the commission of the crime. The High Court’s decision of acquittal was then challenged in this Court by the State through a petition for leave to appeal bearing No. 82-K/2015, from which the present appeal has arisen. 3. Learned counsel for the appellant argued that the respondent after his arrest was immediately taken to the nearest hospital for X-Ray which showed foreign bodies in his stomach, whereafter he was taken to Jinnah Hospital for further examination. The Doctor then administered him medicines so that the respondent may pass stool and resultantly he excreted 50 capsules which after chemical examination were found to contain 550 grams of heroin power. Leaned counsel further submitted that Head Constable who appeared as PW-3 and other Constables who were specifically deputed in the ward where the respondent was kept, were present at the time when the respondent excreted the capsules. Dr. Inam Khan who had administered medicine to the respondent was examined as PW-5. He deposed that after examining respondent’s X-Ray he advised that the respondent be administered Lactulose syrup and one Omerprazole capsule Criminal Appeal No. 21-K/2016 3 and on the next day while he was on duty, the staff of ANF informed him that the respondent has excreted 50 capsules. These very capsules were then sent to Chemical Examiner. The Chemical Examiner Dr. Fazal Elahi was also examined as PW-3. He in his deposition confirmed that 50 capsules weighed 615 grams of which 550 grams were heroin powder. Learned counsel submitted this evidence was sufficient to convict the respondent. 4. Learned counsel for the respondent on the other hand argued that the X-Ray taken in Nihal hospital did not contain the name of the respondent and that it has not come in the evidence as to whether the accused excreted the capsules on the bed or in the toilet and whether the capsules were washed or not and if so as to in whose presence. He also submitted that it has also not come in the evidence that the respondent excreted capsules in the presence of the doctor. He next submitted that no medical officer posted in the department of radiology, who has issued CT scan report, after the excretion of the capsules, was examined. 5. We have examined the evidence that has come on the record. It is an admitted position that the respondent was arrested from the airport. He was then immediately taken to nearby Nihal hospital in Malir where X-Ray of his stomach was taken which depicted foreign bodies. The X-Ray as well as the receipt of the hospital has been produced in evidence. The X- Ray no doubt does not contain the name of the respondent but it contains the receipt number and on the receipt itself the name of the respondent and the very same receipt number that is on the X-Ray is there. After the X-Ray, the respondent was taken to Jinnah hospital. At all times his custody was secured through police personnel. The doctor then administered the requisite medicines so that whatever is in his stomach is flushed out. This entire process, right from the arrest of the respondent and administration of necessary medicine to Criminal Appeal No. 21-K/2016 4 facilitate quick excretion, has not been questioned by the defence in the cross-examination of the prosecution witnesses. All that had been said in defence was that X-Ray film does not contain the name of the respondent, that it has not come in the evidence as to whether the accused excreted the capsules on the bed or in the toilet and whether the capsules were washed or not and if so as to who washed the same and that no medical officer posted in the department of radiology, who has issued CT scan report after the excretion of capsules was examined. 6. We have noted that there is no material omission or contradiction in the depositions of the prosecution witnesses. The doctor i.e. PW-5 first administered the requisite medicine and thereafter the respondent excreted capsules under the watch of ANF Staff, who were deputed for such purpose. The excreted capsules were then produced before the doctor. In the presence of deposition of the doctor who after noticing foreign bodies in the X-Ray administered medicine to facilitate excretion as well as the depositions of ANF staff in whose presence respondent excreted capsules, it matters not whether the respondent excreted the capsules on the bed or in the toilet or whether the capsules were washed or not as such details are of no relevance. It has come in the evidence that the recovered capsules after excretion were immediately presented to the concerned doctor and then were sealed and sent to the Chemical Examiner. Upon chemical examination it was confirmed that the capsules contained 550 grams of heroin powder. No contradictions on this material aspect of the case has been extracted from the prosecution witnesses. We may mention here that even where no proper investigation is conducted, but where the material that comes before the Court is sufficient to connect the accused with the commission of crime, the accused can still be convicted, notwithstanding minor omissions that have no bearing on the outcome of the case. Thus, there exists ample evidence on record to find the respondent guilty and the Trial Court rightly convicted him. Criminal Appeal No. 21-K/2016 5 7. The above are the reasons of our short order dated 06.12.2016 whereby we allowed this appeal, set aside the impugned judgment of the High Court and restored that of the Trial Court. JUDGE JUDGE JUDGE Karachi, the 8th of December, 2016 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.21-P of 2010 (Against the judgment dated 18.06.2008 passed by the Peshawar High Court, Peshawar in Criminal Appeal No.425/2005 with Murder Reference No.40/2005). Wazir …Appellant(s) VERSUS The State & another …Respondent(s) For the Appellant(s) : Mr. Astaghfirullah, ASC For the State : Mr. Mujahid Ali Khan, Additional Advocate General, Khyber Pakhtunkhwa Date of Hearing : 29.04.2019 Judgment Qazi Muhammad Amin Ahmed, J.- Wazir Son of Shamshair, appellant herein, was tried along side eleven others by the learned Special Judge, Anti Terrorism Court at Saidu Sharif for being a privy to abduction of Muhammad Naeem deceased in order to exact ransom from his family; he was arrested much late in the day, finally indicted along side Noor Zaman co-accused; consequent upon their convictions they were sentenced to death; remainder of the accused were acquitted from the charge. The High Court maintained conviction of the appellant, however altered penalty of death into imprisonment for life; while dealing with the case of Fazal Rehman, co-convict he was found guilty by the learned High Court for conspiracy within the contemplation of Section 109 of the Pakistan Penal code, 1860 and thus sentenced to five years R.I. Leave has been granted to re-apprise the evidence to ensure safe administration of criminal justice. 2. Learned counsel for the appellant contends that the appellant has been roped in the case on the basis of a misplaced Criminal Appeal No.21-P of 2010 2 and misconceived suspicion; that confessional statement is a flawed piece of evidence hardly sufficient to sustain the charge; it has been disbelieved qua majority of the accused and thus cannot be pressed into service qua the appellant; it is contracted by medical evidence pointed out by the learned counsel. Contrarily the learned Law Officer has defended the impugned judgment; he argued that the Courts below rightly convicted the appellant for the crime as prosecution successfully drove home charge against him beyond reasonable doubt. He has referred to appellant’s long absconsion as a circumstance reflecting upon his guilt. 3. Appellant’s confessional statement relied upon by the Courts below is prosecution’s mainstay. Occurrence took place way back in February 2002, whereas the appellant statedly made his breast clean on 27.6.2002. We have noticed the confessional statement spreading over four hand written pages as unseemingly elaborate and exhaustive; it is more an encyclopedia to cater needs for the prosecution than a declaration of guilt by a remorseful or repentant offender. Argument that such a detailed narrative can neither be voluntary nor spontaneous is not entirely beside the mark. We have also not felt comfortable with the printed form with empty spaces to fill the relevant details to qualify requirements of Section 364 of the Code of Criminal Procedure. Argument that warnings and cautions were not live addressed face to face to the prisoner cannot be dismissed out of hand. Once prosecution opts to rely upon a confessional statement of an accused to his detriment it must come forward with the disclosure above all suspicions and taints; it is not a case in hand. Findings recorded by the medical officer with regard to cause of death are not in line with the details purportedly furnished by the appellant. According to the confessional statement the deceased was tortured and he became unconscious when the accused put a quilt on him and found dead when removed, whereas according to Dr. Nisar Ahmed, PW-7 the death “occurred due to extra ordinary violence, choking and fracture of cervical spine (due to trauma and fracture choking) (asphaxial death)”. Confessional statement cannot be favourably received without being imprudent for yet another reason; it has been disbelieved qua Ibrahim, Muhammad Zaib, Hassan Shah, Criminal Appeal No.21-P of 2010 3 Javed, Shah Zaman, Wali Khan, Sajid Khan and Ghani Khan, co- accused. It is by now well settled that a confessional statement has to be received wholistically without quantification; once it is found unreliable qua majority of the accused notwithstanding different roles it cannot furnish basis for appellant’s conviction as well. We have also not been able to draw any distinction in the appellant’s position vis-à-vis Fazal Rehman who had been let off by the learned High Court with five years imprisonment. On the whole, prosecution case against the appellant is not free from doubt and thus it would be un-safe to maintain the conviction. Criminal appeal is allowed. JUDGE JUDGE Islamabad, the 29th of April, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Mushir Alam Mr. Justice Dost Muhammad Khan Criminal Appeals No. 210 and 211 of 2015 (Against the judgment dated 09.03.2015 passed by the Islamabad High Court, Islamabad in Criminal Appeal No. 90 of 2011 and Capital Sentence Reference No. 01 of 2011) Malik Muhammad Mumtaz Qadri (in Criminal Appeal No. 210 of 2015) The State (in Criminal Appeal No. 211 of 2015) … Appellants versus The State, etc. (in Criminal Appeal No. 210 of 2015) Malik Muhammad Mumtaz Qadri (in Criminal Appeal No. 211 of 2015) … Respondents For the appellants: Mian Nazir Akhtar, ASC Khawaja Muhammad Sharif, ASC Mr. Ghulam Mustafa, ASC (in Criminal Appeal No. 210 of 2015) Mian Abdul Rauf, Advocate-General, Islamabad (in Criminal Appeal No. 211 of 2015) For the respondents: Mian Abdul Rauf, Advocate-General, Islamabad (in Criminal Appeal No. 210 of 2015) Mian Nazir Akhtar, ASC Khawaja Muhammad Sharif, ASC Mr. Ghulam Mustafa, ASC (in Criminal Appeal No. 211 of 2015) Dates of hearing: 05.10.2015, 06.10.2015 & 07.10.2015 Criminal Appeals No. 210 and 211 of 2015 2 JUDGMENT Asif Saeed Khan Khosa, J.: Almighty Allah has ordained in the Holy Qur’an that upon receipt of a news or information the men of faith ought to ascertain correctness of such news or information before they may act upon the same and that harm may be avoided if such news or information is got investigated in the first place. The following verses of the Holy Qur’an are relevant in this regard: Surah Al-Hujurat: verse 6 “O you who have faith! If a profligate [person] should bring you some news, verify it, lest you should visit [harm] on some people out of ignorance, and then become regretful for what you have done.” Surah An-Nisa: verse 94 “O you who have faith! When you issue forth in the way of Allah, try to ascertain: do not say to someone who offers you peace, ‘you are not a believer’, seeking the transitory wares of the life of this world. Yet with Allah are plenteous gains. You too were such earlier, but Allah did you a favour. Therefore, do ascertain. Allah is indeed well aware of what you do.” Surah An-Nisa: verse 83 “When a report of safety or alarm comes to them, they immediately broadcast it: but had they referred it to the Apostle or to those vested with authority among them, those of them who investigate would have ascertained it. And were it not for Allah’s grace upon you and His mercy, you would have surely followed Satan, [all] except a few.” In the following paragraphs of this judgment it shall be highlighted as to how the accused person in this case had acted on the basis of nothing but hearsay without getting his information ascertained, verified or investigated and, as Almighty Allah has warned, he has brought harm not only to another person but also to himself. Verily, such are the consequences when Almighty Allah’s warnings or commands are not heeded to. 2. The facts of this case are quite simple and straightforward admitting of no ambiguity but the issues posed before us have been made to appear existential and of metaphysical proportions involving religious beliefs and philosophical reflections. With Criminal Appeals No. 210 and 211 of 2015 3 respect and without prejudice to the strong religious and philosophical views expressed before us we must state at the outset that we, in terms of our calling and vocation and in accord with the oath of our office, are obligated to decide this case in accordance with the law of the land as it exists and not in accordance with what the law should be. There is no gainsaying that the provisions of Article 203G of the Constitution of the Islamic Republic of Pakistan, 1973 categorically oust the jurisdiction of this Court in matters of interpretation of the Injunctions of Islam as laid down in the Holy Qur’an and the Sunnah of the Holy Prophet Muhammad (peace be upon him) falling within the exclusive domain, power and jurisdiction of the Federal Shariat Court and the Shariat Appellate Bench of this Court with reference to an existing law and essentially this Court’s jurisdiction in such matters is limited to application of the principles where they are settled. Apart from that, by virtue of the provisions of Article 230 of the Constitution, it is one of the functions of the Council of Islamic Ideology to interpret the Injunctions of Islam with reference to an existing or proposed law and we would not like to usurp that function either. 3. At about 04.15 PM on 04.01.2011 Mr. Salman Taseer, the then Governor of the Province of the Punjab, was returning home near Kohsar Market, Islamabad when Malik Muhammad Mumtaz Qadri appellant, serving in the Elite Force of the Punjab Police and performing the duties of an official guard of the Governor at that time, opened fire at Mr. Salman Taseer from his official weapon riddling his body with bullets and causing multiple injuries. The grievously injured Mr. Salman Taseer was immediately shifted to Polyclinic Hospital, Islamabad but upon arrival at the hospital he was declared dead. Soon after firing at Mr. Salman Taseer the appellant laid down his weapon and surrendered before the other official guards deputed on the Governor’s security who arrested him at the place of occurrence and secured the weapon of offence. Mr. Shehryar Taseer, a son of Mr. Salman Taseer deceased, reported the matter to the local police through an application at Criminal Appeals No. 210 and 211 of 2015 4 05.10 PM on the same day whereafter formal FIR No. 06 was registered in that regard at Police Station Kohsar, Islamabad at 05.25 PM during the same evening for offences under section 302, PPC read with section 109, PPC and section 7 of the Anti-Terrorism Act, 1997. 4. After completion of the investigation a Challan was submitted before the Anti-Terrorism Court-II, Rawalpindi Division & Islamabad Capital Territory which framed a Charge against Malik Muhammad Mumtaz Qadri appellant in respect of an offence of qatl-e-amd punishable under section 7(a) of the Anti-Terrorism Act, 1997 read with sections 302 and 109, PPC to which the appellant responded as follows: “I have not committed murder of an apostate like Suleman Taseer (the then Governor Punjab) contrary to dictums of the Holy Quran and Sunnah.” During the trial the prosecution produced fourteen witnesses in support of its case against the appellant and also placed on the record some documentary evidence including a positive report of the Forensic Science Laboratory confirming matching of the crime- empties with the firearm recovered from the appellant’s possession. Nadim Asif, ASI (PW11) and Muhammad Amer Khan, Inspector (PW12) furnished the ocular account of the incident and also deposed about arrest of the appellant at the spot and recovery of the weapon of offence from his custody. Dr. Muhammad Arshad, Surgeon (PW1) provided the medical evidence and Ch. Muhammad Ali, Assistant Commissioner City, Islamabad (PW9) proved the confessional statement made before him by Malik Muhammad Mumtaz Qadri appellant under section 164, Cr.P.C. Hakem Khan, Inspector (PW14), the investigating officer, stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature. In his statement recorded under section 342, Cr.P.C. the appellant admitted killing Mr. Salman Taseer and in response to the question as to why he had been implicated in this Criminal Appeals No. 210 and 211 of 2015 5 case and as to why the prosecution witnesses had deposed against him he stated as follows: “Salman Taseer, at relevant time, was acting as Governor of the Province of Punjab. He was a representative of the Federal Government of Pakistan. While holding the position of the Governor of a Province of the Islamic Republic of Pakistan, he publically exposed himself as a sympathiser of condemned prisoner namely Mst. Aasia, who was sentenced to death by a Court of law for use of derogatory remarks about the Holy Prophet Mohammad (Peace Be Upon Him) and directly defiled the name of Holy Prophet Mohammad (Peace Be Upon Him). Needless to point out that the sentence awarded to the above lady was still holding field and the judgment passed by the trial Court, was yet to undergo judicial scrutiny in the Courts of appeal. However, Salman Taseer in a very derogatory manner on his visit to Jail at Lahore, arranged a “Darbar” for making himself available to receive only self arranged mercy petition of the condemned prisoner. It was not that simple, but Salman Taseer also in his interview published on 23.12.2010, in a very shameful manner called Blasphemy Law as “Black Law”. To criticize such law and to challenge it as it was man made law tantamount to directly defiling the sacred name of the Holy Prophet Mohammad (Peace Be Upon Him) and was an attempt to lower down this sacred provision of Law, which is in consonance with the dictates of Quran and Sunnah. In this connection the Daily Express tribune of 5.12.2010 (Portion highlighted Mark A to A) and the Daily Express (Urdu) dated 23.11.2010, marked B to B at page 8 and marked C to C at page 5 are worth mentioning. It is pointed out that the news items mentioned above were never denounced by Salman Taseer in his life time. This situation reveals that Salman Taseer himself was responsible for commission of an offence U/s 295-C of P.P.C. punishable to death or life imprisonment. Inspite of that he was not dealt with in accordance with law, obviously he was the lieutenant of President Asif Ali Zardari and a bully of Americans. So nature had to take its own course and justice was done. It is a lesson for all the apostates, as finally they have to meet the same fate. I may put a question to the prosecution “If a Muslim due to “Sub-o-Shattim” and “Ertad” does not render himself liable to dual liability of being killed? The act which is embedded with both “Sub-o-Shattim” and “Ertad” touches the heights of gravity. Here prosecution has to show that due to Shatum one does not become “Murtad” (apostate) and that “Murtad” is not liable to be killed? This preposition would definitely settle fate of the case, one way or other. Personal life of Salman Taseer shows that right from early times he proved himself as an infidel. He married three times. His one wife was “Sikh” by religion. He arranged his so called marriage in a secret way with that lady in New Delhi in India. From that wedlock a son named Aatish Taseer was born. On attaining youth above Aatish adopted Journalism in London and once or twice traveled to Pakistan to see his father Aatish Taseer wrote a book titled “Stranger to History” and it was published by “Mc CLELLAND STEWART OF LONDON”. The author while describing his father Salman Taseer writes at page 21 & 22 of the Book Stranger to History (Book attached) “My father who drank scotch every evening, never fasted or prayed even ate pork and once said “It was only when I was in jail and all they gave me to read was Koran- and read it back to front several times – that I realized there was nothing in it for me”. Criminal Appeals No. 210 and 211 of 2015 6 His lifestyle, faith and living with a lady of non Muslim faith, reflecting his act of living in constant state of Zinna under the pretext of marriage (not permissible in Islam) speak volume of his character and associated matters. On the faithful day, I being member of Elite Force I was deployed as one of the member of the Escort Guard of Salman Taseer, the Governor Punjab. In Koh-i-Sar Market, the Governor with another after having lunch in a restaurant walked to his vehicle. In adjoining mosque I went for urinating in the washroom and for making ablution. When I came out with my gun, I came across Salman Taseer. Then I had the occasion to address him, “your honour being the Governor had remarked about blasphemy law as black law, if so it was unbecoming of you” Upon this he suddenly shouted and said, “Not only that it is black law, but also it is my shit”. Being a Muslim I lost control and under grave and suddenly provocation, I pressed the trigger and he lay dead in front of me. I have no repentance and I did it for “Tahafuz-i- Namoos-i-Rasool” Salman offered me grave and sudden provocation. I was justified to kill him kindly see my accompanying written statement U/s 265(F)(5) of Cr.P.C.” The appellant opted not to make a statement on oath under section 340(2), Cr.P.C. and did not produce any witness in his defence. He, however, submitted a written statement under section 265-F(5), Cr.P.C. maintaining that he was “justified” in killing Mr. Salman Taseer and also placed on the record some newspaper reports. 5. After recording the evidence and attending to the final arguments of the learned counsel for the parties the learned Judge, Special Court-II, Anti-Terrorism, Rawalpindi Division & Islamabad Capital Territory convicted Malik Muhammad Mumtaz Qadri appellant for an offence under section 302(b), PPC vide judgment dated 01.10.2011 and sentenced him to death and to pay a sum of Rs. 1,00,000/- to the heirs of the deceased by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months. Through the same judgment the trial court also convicted the appellant for an offence under section 7(a) of the Anti-Terrorism Act, 1997 and sentenced him to death and to pay a fine of Rs. 1,00,000/- or in default of payment thereof to undergo simple imprisonment for six months. Criminal Appeals No. 210 and 211 of 2015 7 6. Malik Muhammad Mumtaz Qadri appellant challenged his convictions and sentences before the Islamabad High Court, Islamabad through Criminal Appeal No. 90 of 2011 which was heard by a learned Division Bench of the said Court along with Capital Sentence Reference No. 01 of 2011 seeking confirmation of the sentences of death passed by the trial court and vide judgment dated 09.03.2015 the appeal filed by the appellant was dismissed to the extent of his conviction and sentence recorded by the trial court for an offence under section 302(b), PPC and the connected Capital Sentence Reference was answered in the affirmative to that extent but the appeal was partly allowed to the extent of his conviction and sentence recorded by the trial court for an offence under section 7(a) of the Anti-Terrorism Act, 1997 which conviction and sentence were set aside and he was acquitted of that count of the Charge. 7. Subsequently Malik Muhammad Mumtaz Qadri filed Criminal Petition No. 197 of 2015 before this Court seeking leave to appeal against the above mentioned judgment delivered by the Islamabad High Court, Islamabad and assailing his conviction and sentence for an offence under section 302(b), PPC whereas the State preferred Criminal Petition No. 275 of 2015 before this Court seeking leave to appeal against the same judgment and challenging acquittal of Malik Muhammad Mumtaz Qadri from the charge under section 7(a) of the Anti-Terrorism Act, 1997. On 14.05.2015 this Court allowed both the said Criminal Petitions and granted leave to appeal therein by passing the following order: “Criminal Petition No. 197 of 2015 The record of the case shows that Malik Muhammad Mumtaz Qadri petitioner had admitted killing Governor Salman Taseer and this is so evident from the petitioner’s statement recorded under section 164, Cr.P.C., his response to the charge framed against him and his answers to questions No. 3 and 8 put to him at the time of recording of his statement under section 342, Cr.P.C. It has vehemently been argued by the learned counsel for the petitioner that the killing of the deceased by the petitioner was on account of the deceased having committed blasphemy in terms of section 295-C, PPC and in that backdrop the petitioner was justified in murdering the deceased. After hearing elaborate submissions of the learned counsel for the petitioner we are of the Criminal Appeals No. 210 and 211 of 2015 8 opinion that the following questions, inter alia, require consideration of this Court: i) Did any utterance of the deceased in fact amount to blasphemy in terms of section 295-C, PPC and was sufficient record available in this case to presume commission of blasphemy by the deceased? The learned counsel for the petitioner has read out from clippings of two newspaper reports which prima facie tend to show that the deceased had said something about the law framed for the offence of blasphemy and its improper application and apparently the deceased had not uttered any word defiling the sacred name of the Holy Prophet Muhammad (Peace Be Upon Him). ii) If the petitioner entertained an impression that the deceased had committed blasphemy then did the petitioner, acting in his private capacity, have any legal justification to kill the deceased without having recourse to the law? In this respect Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973 may be relevant which stipulates that no person shall be deprived of his life or liberty save in accordance with law. iii) Even if the petitioner entertained an impression about commission of blasphemy by the deceased and even if he was motivated by any religious sentiment in that regard still could the petitioner kill the deceased at a time when he was performing the duties of a guard of the deceased and was performing official functions, wearing an official uniform, using an official weapon and possessing officially supplied bullets? It would be relevant in this context to consider as to whether a person given in the protection of the petitioner could be deprived of his life by the petitioner himself and as to whether committing such a murder would not offend against the religious injunctions, precepts or traditions. iv) If the petitioner had confessed killing the deceased before the learned trial court at different stages of the trial then was it not a case attracting the provisions of section 304, PPC and section 302(a), PPC which offence carries the punishment of death only and has no alternative sentence? v) In case the petitioner’s conviction is not interfered with by this Court then are there any mitigating circumstances available on the record warranting reduction of the petitioner’s sentence from death to imprisonment for life or not? It may be relevant in the present context that the petitioner had no personal enmity with the deceased and he had acted only under a religious motivation. It may also be relevant in this context that the petitioner could be said to have acted cruelly and brutally in the matter as he had riddled the deceased’s body with as many as thirty-two injuries caused by twenty- eight bullets. Criminal Appeals No. 210 and 211 of 2015 9 2. The questions mentioned above, amongst others, require consideration of this Court. This petition is, therefore, allowed and leave to appeal is granted for the purpose. Criminal Petition No. 275 of 2015 3. It has inter alia been contended by the learned Advocate- General, Islamabad appearing for the petitioner/the State that while holding that the case in hand did not attract the definition of ‘terrorism’ contained in section 6 of the Anti-Terrorism Act, 1997 the Islamabad High Court, Islamabad had completely failed to advert to the provisions of section 6(1)(c) of the Anti-Terrorism Act, 1997 which stipulate that an offence of murder committed for the purpose of advancing a religious cause or for the purpose of intimidating and terrorizing the public or government officials amounts to terrorism triable by an Anti-Terrorism Court. He has also argued that the Islamabad High Court, Islamabad had fallen in error in holding that because there was insufficient evidence regarding spreading of fear and insecurity in the society as a result of the petitioner’s action, therefore, the case in hand was not a case of terrorism. According to him the High Court had failed to appreciate that the definition of terrorism contained in section 6 of the Anti-Terrorism Act, 1997 had relevance to the design or object of the perpetrator of the offence and not to the fall out of an offence creating a sense of fear and insecurity in the society. In this respect he has relied upon the cases of Basharat Ali v. Special Judge, Anti-Terrorism Court-II, Gujranwala (PLD 2004 Lahore 199), Mohabbat Ali and another v. The State and another (2007 SCMR 142), Bashir Ahmed v. Muhammad Siddique and others (PLD 2009 SC 11), Ahmed Jan v. Nasrullah and others (2012 SCMR 59) and Tariq Mahmood v. The State and others (2008 SCMR 1631). The learned Advocate-General, Islamabad has gone on to submit that the jurisdiction of an Anti-Terrorism Court is to be determined on the basis of the allegations leveled in the FIR, the statements made under section 161, Cr.P.C. and the attending circumstances of the case becoming available on the record and, thus, an ultimate acquittal of the respondent from the charge under section 7(a) of the Anti-Terrorism Act, 1997 did not preclude the learned Anti- Terrorism Court from trying the case in hand and in this respect he has relied upon the cases of Allah Din and 18 others v. The State and another (1994 SCMR 717) and Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and others (PLD 2001 SC 169). 4. The contentions of the learned Advocate-General, Islamabad noted above require consideration. This petition is, therefore, allowed and leave to appeal is granted for the purpose. 5. The office is directed to club the appeals arising out of the above mentioned two petitions so that they may be heard together. The office is also directed to fix the appeals for regular hearing in the month of October, 2015, as agreed between the learned counsel for the parties.” Hence, the present appeals before this Court. 8. We have heard Mian Nazir Akhtar, ASC and Khawaja Muhammad Sharif, ASC appearing for Malik Muhammad Mumtaz Qadri convict-appellant and Mian Abdul Rauf, Advocate-General, Criminal Appeals No. 210 and 211 of 2015 10 Islamabad appearing for the State at considerable length and have minutely gone through the record of the case with their able assistance besides carefully perusing all the religious texts and material produced or referred to during the arguments. In the following paragraphs we propose to separately discuss and deal with all the arguments advanced before us from both the sides. 9. In a case of murder two questions are of paramount importance and they are (i) was it the accused person facing the trial who had committed the murder in issue? and (ii) if it was the accused person facing the trial who had committed the murder in issue then did he have any factual or legal justification for committing that murder? In the case in hand the answer to the first question had been provided by Malik Muhammad Mumtaz Qadri appellant himself by admitting at every stage of the case that he, and he alone, had committed the murder of Mr. Salman Taseer. During the investigation, in his confessional statement recorded by a Magistrate under section 164, Cr.P.C., in his reply to the Charge framed by the trial court, through some suggestions put by his learned counsel to different prosecution witnesses, in his statement recorded under section 342, Cr.P.C., in his written statement filed under section 265-F(5), Cr.P.C., through the final arguments advanced by his learned counsel at the conclusion of the trial and also before the High Court, at the leave granting stage before this Court and during the submissions made by his learned counsel before this Court at the time of hearing of the present appeals it had and has consistently been maintained by Malik Muhammad Mumtaz Qadri and his learned counsel that Mr. Salman Taseer had been done to death by none other than Malik Muhammad Mumtaz Qadri appellant at the date, time and place Criminal Appeals No. 210 and 211 of 2015 11 alleged by the prosecution. In these circumstances the question as to who had committed the murder of Mr. Salman Taseer may not detain us any further. 10. The second question as to whether Malik Muhammad Mumtaz Qadri appellant had any factual or legal justification for committing the murder of Mr. Salman Taseer or not has been and is the real bone of contention in this case. This aspect of the case can be divided into two parts, i.e. factual justification and legal justification and we now proceed to discuss these parts separately with reference to the record of the case as well as the submissions made by the learned counsel for the parties before us. 11. The factual justification consistently advanced by Malik Muhammad Mumtaz Qadri appellant has been that in his capacity as the Governor of the Province of the Punjab Mr. Salman Taseer had committed blasphemy. Two separate parts of such factual justification have been highlighted by the learned counsel for the appellant. The first part is that after conviction and sentence of one Mst. Asia Bibi, a Christian lady, in some case for committing the offence of blasphemy Mr. Salman Taseer had paid a visit to that lady inside a jail and on that occasion and also in some television programme aired later on he had observed that the minorities in Pakistan enjoyed adequate constitutional and legal protections, Mst. Asia Bibi had been convicted not under any law introduced by the Quaid-i-Azam or Zulfiqar Ali Bhutto but under a law promulgated by Zia-ul-Haq which was a black law, according to his own inquiries Mst. Asia Bibi was innocent in the matter, Mst. Asia Bibi was a poor and hapless woman, her conviction and sentence had brought a bad name to our system inside the country and abroad and he had obtained an application from Mst. Asia Bibi for seeking some relief for her from the relevant quarters. For proving such utterances of Mr. Salman Taseer the appellant had produced two newspaper reports before the trial court which had been placed on the record as Mark-A and Mark-B. It has been maintained by the learned counsel for the appellant that the above Criminal Appeals No. 210 and 211 of 2015 12 mentioned utterances of Mr. Salman Taseer were blasphemous. The second part of the factual justification advanced by the appellant was that immediately before the present occurrence the appellant had said to Mr. Salman Taseer that it was unbecoming of him as a Governor to have remarked about the blasphemy law as black law upon which Mr. Salman Taseer had responded by saying that “Not only that it is black law, but also it is my shit” which response was also blasphemous and the same had gravely and suddenly provoked the appellant. On the basis of the above mentioned two factual aspects the learned counsel for the appellant has canvassed that Mr. Salman Taseer had committed blasphemy and had also provoked the appellant and, therefore, the appellant was quite justified in killing him. The learned Advocate- General, Islamabad appearing for the State has, however, vehemently argued that none of the said factual aspects asserted by the appellant had been lawfully proved or duly established on the record of this case and, therefore, the same cannot be made a basis for claiming any relief for the appellant. 12. In a criminal case whenever an accused person wants the court to accept that his action was justified in the peculiar circumstances of the case the provisions of Article 121 of the Qanun-e-Shahadat Order, 1984 come into play which provide as follows: “121. Burden of proving that case of accused comes within exception.- When a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Pakistan Penal Code (Act XLV of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. Illustrations (a) A, accused of murder, alleges that, by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A. (b) A, accused of murder, alleges that, by grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A. Criminal Appeals No. 210 and 211 of 2015 13 (c) Section 325 of the Pakistan Penal Code (Act XLV of 1860) provides that whoever, except in the case provided for in section 335, voluntarily causes grievous hurt, shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under section 325. The burden of proving the circumstances bringing the case under section 335 lies on A.” Grave and sudden provocation offered by a victim to the assailant is surely one of the exceptions within the contemplation of the above mentioned Article 121 which exception was previously recognized by Exception No. 1 to the erstwhile section 300, PPC and is now covered by the provisions of section 302(c), PPC. The law is quite settled by now that if an accused person wants the court to believe that some words or actions of the victim had provoked him and on the basis of such provocation he had killed the victim then in all such cases the court is to presume the absence of the circumstances being asserted by the accused person in support of his plea and it is for the accused person to prove through positive and legally admissible evidence that some provocation was actually offered to him by the victim and such provocation was grave and sudden. In the present case both the parts of the factual justification advanced by the appellant had clearly remained unproved by him. As regards the Mst. Asia Bibi related utterances attributed to Mr. Salman Taseer no specific date or time of such utterances or the exact words uttered had been established on the record, the jail and the city wherein he had statedly made the relevant observations were variantly described, the television channel or the programme referred to had not been named, the reporters who had prepared the newspaper reports Mark-A and Mark-B had not been produced as witnesses, both the said newspaper reports were not duly exhibited in evidence and the said reports had never been lawfully proved. Mark-A was a newspaper report published after the murder of Mr. Salman Taseer, i.e. many months after the alleged utterances had been made by him and the said report was purely speculative in nature as the reporter had only speculated that Mr. Salman Taseer had been murdered because of some utterances he had made some Criminal Appeals No. 210 and 211 of 2015 14 months ago. In that report the reporter had never claimed that he had himself heard Mr. Salman Taseer saying what was alleged to have been said by him. Mark-B was a newspaper report about some observations statedly made by Mr. Salman Taseer in a programme aired by a television channel and in that report neither the television channel nor the programme had been named nor the reporter had claimed to have personally heard or seen Mr. Salman Taseer making those observations. Even the date and time of airing of the television programme had not found any mention in the said newspaper report. During their cross-examination some suggestions were put by the appellant to both the eyewitnesses produced by the prosecution regarding the Mst. Asia Bibi related utterances allegedly made by Mr. Salman Taseer but both of them had categorically stated that those suggestions were incorrect. It is true that a similar suggestion put to the investigating officer was accepted by him to be correct but at the same time it is equally true that no source of knowledge of the investigating officer about correctness of such suggestions had been disclosed by the investigating officer himself or was established on the record by the appellant. Apart from that, even if the Mst. Asia Bibi related utterances attributed to Mr. Salman Taseer were to be accepted as duly proved still all that Mr. Salman Taseer had allegedly said on that occasion conveyed an impression that, according to Mr. Salman Taseer, the law regarding commission of blasphemy had been promulgated by an unrepresentative military ruler and the same was a black law because in the absence of proper safeguards against its misuse it was being utilized as a vehicle of oppression against innocent people and weaker segments of the society including religious minorities. In the alleged utterances Mr. Salman Taseer had never, directly or indirectly, made any observation about the Holy Prophet Muhammad (peace be upon him) so as to attract the definition of blasphemy contained in section 295-C, PPC which definition is relevant only to a person who “by words, either spoken or written, or by visible representation, or by any imputation, innuendo or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Criminal Appeals No. 210 and 211 of 2015 15 Muhammad (peace be upon him)”. It is, therefore, difficult to accept that the Mst. Asia Bibi related alleged utterances of Mr. Salman Taseer amounted to commission of blasphemy by him and it is even more difficult to accept that such utterances could be treated by the appellant to be providing provocation to him which provocation was neither grave nor sudden so as to attract any general or special exception recognized by the Pakistan Penal Code. We have already observed above that even if any such exception could be said to be attracted to the case in hand it was for the appellant to prove the circumstances attracting such exception through positive and legally admissible evidence which he had completely failed to produce. In these circumstances the judicial presumption regarding absence of such circumstances contemplated by Article 121 of the Qanun-e-Shahadat Order, 1984 stood reinforced. 13. The second part of the factual justification advanced by the appellant pertained to a verbal exchange allegedly taking place between the appellant and Mr. Salman Taseer immediately prior to opening of fire by the former upon the latter. The contents of the alleged exchange of words asserted by the appellant through his statement recorded under section 342, Cr.P.C. have already been reproduced above. It may be reiterated that even in respect of this factual aspect of the case the onus of proof was squarely on the appellant but he had utterly failed to discharge that onus. In his first version before the investigating officer the appellant had not mentioned any such verbal exchange taking place with Mr. Salman Taseer immediately preceding the firing. During the trial some suggestions were put by the defence to both the eyewitnesses produced by the prosecution regarding the asserted exchange of words but such suggestions were categorically denied and controverted by both of them. It may be relevant to mention here that the words forming the verbal exchange put to the two eyewitnesses through suggestions were different and they were also different from the words mentioned by the appellant in his statement recorded under section 342, Cr.P.C. The record of the Criminal Appeals No. 210 and 211 of 2015 16 case shows that at the time of the present occurrence Mr. Salman Taseer was accompanied by his friend namely Sheikh Waqas whose presence at the spot at the relevant time was also confirmed by the site-plan of the place of occurrence. As the onus to prove the asserted verbal exchange between the appellant and Mr. Salman Taseer was on the appellant, therefore, the appellant could have produced the said Sheikh Waqas as a defence witness or he could have applied before the trial court for summoning of the said witness as a court witness so as to establish taking place of the asserted verbal exchange between the appellant and Mr. Salman Taseer but the appellant had taken no such step. In the absence of any confirmation of the asserted verbal exchange by the eyewitnesses produced by the prosecution and in the absence of production of Sheikh Waqas as a defence witness or his summoning as a court witness the only other person who could prove or establish the asserted exchange of words between the appellant and the victim was none other than the appellant himself but admittedly he had declined to appear before the trial court as his own witness by making a statement on oath under section 340(2), Cr.P.C. Failure of the appellant to enter the witness-box for making a statement in respect of that asserted fact amounted to withholding the best available evidence and such failure on his part had given rise to an inference adverse to truthfulness of the appellant’s factual assertion made in that regard. During his arguments the learned counsel for the appellant was questioned by us regarding complete lack of evidence regarding this part of the factual justification advanced by the appellant and all that he could submit was that it had become available on the record that some of his injuries had been received by Mr. Salman Taseer on the frontal parts of his body and that at some point of time immediately before the firing at him he was facing the appellant and, thus, it could be presumed that some conversation must have taken place between the appellant and Mr. Salman Taseer at that stage. In this context it has also been submitted by him that great number of injuries caused by the appellant to his victim indicated receipt of grave provocation by the appellant and this hinted at Criminal Appeals No. 210 and 211 of 2015 17 taking place of some exchange of words between the appellant and his victim which had gravely provoked the appellant at the spot. Such submissions of the learned counsel for the appellant have, however, been found by us to be nothing but speculative. The onus of proof on this issue was on the appellant and it cannot be said that the requisite onus had been discharged by the appellant on the basis of a mere speculation, more so when such speculation did not relate to the content of the conversation supposedly taking place which content was the very basis of the factual justification being advanced for the murder. We have, thus, felt no hesitation in concluding that this part of the factual justification advanced by the appellant was nothing but an afterthought and even this part of the factual justification had remained far from being proved or established on the record. 14. As regards the issue of availability of any legal justification with Malik Muhammad Mumtaz Qadri appellant for murdering Mr. Salman Taseer the said issue has also been addressed by the learned counsel for the appellant from two diverse angles. The first angle is that commission of blasphemy by Mr. Salman Taseer had provoked the appellant and as the murder of Mr. Salman Taseer had been committed on account of serious provocation offered by the victim, therefore, the appellant’s case attracted some general and special exceptions recognized by the Pakistan Penal Code and, thus, his action did not fall within the purview of section 302(b), PPC. The second angle is that being a devout Muslim the appellant was under a religious and moral, and hence legal, obligation to kill an apostate who had committed the offence of blasphemy, particularly when the State had failed to take any legal action against the offender. 15. We note that both the above mentioned angles of the legal justification advanced are premised upon an alleged commission of the offence of blasphemy by Mr. Salman Taseer and the resultant provocation statedly received or entertained by the appellant which factual premise had, as observed above, remained totally unproved Criminal Appeals No. 210 and 211 of 2015 18 on the record of this case in accordance with the law. It goes without saying that no court of law can decide a question of law on the basis of a fact which itself remains not established in terms of the legal requirements. When confronted with this legal position the learned counsel for the appellant referred to section 79, PPC which reads as under: “79. Act done by a person justified, or by mistake of fact believing himself justified, by law.- Nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith, believes himself to be justified by law, in doing it. Illustration A sees Z commit what appears to A to be a murder. A in the exercise, to the best of his judgment, exerted in good faith of the power which the law gives to all persons of apprehending murders in the Act, seizes Z, in order to bring Z before the proper authorities. A has committed no offence, though it may be true if Z was acting in self-defence.” By relying upon the provisions of section 79, PPC the learned counsel for the appellant has maintained that even if as a matter of fact Mr. Salman Taseer had not committed the offence of blasphemy within the meanings of section 295-C, PPC still the appellant mistakenly believed that Mr. Salman Taseer had committed the said offence and, therefore, the appellant had committed no offence by murdering him. We have, however, found such an interpretation of section 79, PPC advanced by the learned counsel for the appellant to be misconceived and unacceptable. According to our understanding the said section has two parts and for clarity of comprehension the said section can be read as follows: (i) Nothing is an offence which is done by any person who is justified by law in doing it. (ii) Nothing is an offence which is done by any person who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law in doing it. Criminal Appeals No. 210 and 211 of 2015 19 As regards the first part of section 79, PPC the accused person has to refer to and rely upon some express and existing legal provision which makes his act justified by law. In the present case the learned counsel for the appellant has not been able to refer to any express and existing legal provision in the entire body of laws of this country authorizing any person to kill another person on his own because such other person had, or was perceived to have, committed the offence of blasphemy. As far as the second part of section 79, PPC is concerned the accused person has to establish that by reason of a mistake of fact he believed in good faith that his act was justified by law and such belief that his act was justified by law was not based upon a mistake of law. This provision contemplates that if there had been no mistake of fact and if the fact perceived by the accused person to exist actually existed as a fact then the act of the accused person was such that it was justified by law. This provision also makes it clear that the accused person’s belief in his act being justified by law should not be based upon a mistake of law. This provision further requires that the accused person must act in good faith. Applying these tests to the case in hand it is quite apparent that even if due to a mistake of fact the appellant entertained an impression that Mr. Salman Taseer had committed the offence of blasphemy still there was no valid basis available with the appellant to believe that his act of killing Mr. Salman Taseer was justified by the law of the land. It is also obvious that if the appellant believed that his act was justified by law then such belief was based upon a mistake of law and, therefore, the provisions of section 79, PPC were inapplicable to the case. As regards the requirement of good faith it cannot be argued with any degree of seriousness that the decision of the appellant to take the law in his own hands was based upon good faith. The appellant was a serving officer of the police department at the relevant time and he, of all the persons, would have known about the importance and requirement of recourse to the law. A police officer acting in a matter by taking the law in his own hands may be termed as the worst manifestation of bad faith. Section 52, PPC Criminal Appeals No. 210 and 211 of 2015 20 defines “Good faith” and clarifies that “Nothing is said to be done or believed in “good faith” which is done or believed without due care and attention”. In the case in hand the appellant had never claimed that he had himself heard or read the Mst. Asia Bibi related utterances attributed to Mr. Salman Taseer, he had never claimed that he had tried to get his impression or information about commission of the offence of blasphemy by Mr. Salman Taseer verified in any manner whatsoever, he had acted in the matter on the basis of nothing but hearsay and even the asserted verbal exchange between him and Mr. Salman Taseer statedly taking place immediately prior to the occurrence had not been proved by him through any positive evidence at all. In these circumstances it could not be said that the appellant had acted in the matter with “due care and attention” and, hence, in “good faith” within the meanings of section 79, PPC read with section 52, PPC. For all these reasons the arguments addressed by the learned counsel for the appellant on both the angles of the legal justification advanced by the appellant have failed to convince us. 16. Faced with the above mentioned insurmountable difficulties in establishing before us that the appellant had any legal justification available with him for committing the murder of Mr. Salman Taseer the learned counsel for the appellant has turned to the religion of Islam which even otherwise has remained the primary focus of all his arguments advanced before us. He has argued that committing blasphemy is a grave offence in Islam and if a Muslim commits the murder of a person guilty of committing blasphemy then he commits no offence at all and he cannot be punished for the murder committed by him. In support of this plank of his arguments the learned counsel for the appellant has referred to the written statement submitted by the appellant before the trial court under section 265-F(5), Cr.P.C. wherein references had been made to different verses of the Holy Qur’an including Surah At-Taubah: verse 12, Surah At-Taubah: verses 13, 14 & 15, Surah Al-Maidah: verse 33, Surah Al-Hujurat: verse 2, Surah An- Nur: verse 63, Surah Al-Baqarah: verse 104, Surah Al-Ahzab: verse Criminal Appeals No. 210 and 211 of 2015 21 57, Surah An-Nisa, verse 65, Surah At-Taubah: verses 64, 65 & 66, Surah Al-Mujadilah: verses 20 & 21 and Surah Al-Anfal: verses 12, 13 & 14. In the same written statement of the appellant references had also been made to about thirty Ahadith (traditions) of the Holy Prophet Muhammad (peace be upon him) reported in different religious texts. The appellant had also referred in that written statement to two decisions rendered by Caliphs Umar and Ali (May Allah Almighty be pleased with them) and to opinions recorded by some renowned scholars of Islam in respect of liability of a person who has committed blasphemy. The said written statement of the appellant also contained opinions of some religious scholars justifying extrajudicial killing of an apostate and also of his supporters and maintaining that the deadbody of an apostate is not to be given a cleansing bath and no funeral prayers are to be offered for him. Apart from referring to the said written statement filed by the appellant under section 265-F(5), Cr.P.C. the learned counsel for the appellant has also placed on the record some other material containing some more references concerning commission of blasphemy and justifying killing of an apostate. The learned counsel for the appellant has vehemently maintained before us that in the impugned judgment passed by the Islamabad High Court, Islamabad, particularly in paragraphs No. 28, 29 and 30 thereof, some observations had been made by the High Court which observations, according to the learned counsel for the appellant, did not interpret the Islamic law regarding blasphemy in its true and correct perspective. We have gone through all the above mentioned texts, references and material very carefully and with the deepest veneration and respect that they deserve but at the same time we are also conscious of the contours and scope of the jurisdiction that we can exercise in the present proceedings, particularly in the context of Articles 203G and 230 of the Constitution referred to in the opening part of this judgment and also in the context of Article 175(2) of the Constitution which mandates in no uncertain terms that “No court shall have jurisdiction save as is or may be conferred on it by the Constitution or by or under any law”. We may only observe in this Criminal Appeals No. 210 and 211 of 2015 22 context that we as Muslims are fully aware and convinced of the most exalted position held by the Holy Prophet Muhammad (peace be upon him) in the eyes of Almighty Allah as well as in the hearts and minds of the Ummah and the followers of the Islamic faith. It goes without saying that deepest respect and profound reverence for the Holy Prophet Muhammad (peace be upon him) is an article of faith with all of us. Be that as it may the issue involved in this case is not as to whether anybody is allowed to commit blasphemy by defiling the sacred name of the Holy Prophet Muhammad (peace be upon him) or not or as to whether a person committing blasphemy can be killed by another person on his own or not but the real question involved in the present case is as to whether or not a person can be said to be justified in killing another person on his own on the basis of an unverified impression or an unestablished perception that such other person has committed blasphemy. A close and careful examination of all the references made and the religious material produced in this case by the appellant and his learned counsel shows, and shows quite clearly and unmistakably, that such references and material pertain to cases where commission of blasphemy stands established as a fact and then the discussion is about how the apostate may be treated and not a single reference made or instance referred to in the material produced permits killing of a person on the basis only of an unverified impression or an unestablished perception regarding commission of blasphemy. In the case in hand there is nothing on the record to show that the appellant had made any effort whatsoever to get the Mst. Asia Bibi related utterances attributed to Mr. Salman Taseer verified in any manner. An attempt had, however, been made by the appellant during the trial to improve his case in that regard by introducing the story of a verbal exchange taking place between him and Mr. Salman Taseer immediately prior to the occurrence of murder but we have already concluded above that this part of the story introduced by the appellant was an afterthought and the same had also remained far from being proved in accordance with the law. As mentioned above, in the Holy Qur’an Almighty Allah has repeatedly warned those Criminal Appeals No. 210 and 211 of 2015 23 who start believing in hearsay without getting it ascertained, verified or investigated or conduct themselves on the basis of such hearsay. The appellant, therefore, would have done better if, notwithstanding his professed religious motivation in the matter, he had paid heed to those warnings of Almighty Allah as well before an unjustified killing of another on the sole basis of hearsay. An unjustified killing of a human being has been declared by Almighty Allah as murder of the entire mankind. 17. When specifically questioned by us in that respect the learned counsel for the appellant has maintained that it is not just defiling the sacred name of the Holy Prophet Muhammad (peace be upon him) which constitutes blasphemy but criticizing the law regarding blasphemy is also blasphemous. We may record in this context that for canvassing such a point of view the learned counsel for the appellant has not placed reliance upon any scripture of divine origin but has referred to some scholastic interpretations of human origin. In our country the offence of blasphemy has been defined in section 295-C, PPC and by dictate of the oath of our office we are bound to decide matters in accordance with the Constitution and the law and, thus, we have found it difficult to act in this case on the basis of a definition of blasphemy advanced by the learned counsel for the appellant which definition travels beyond the scope of the statutory definition of the same in the law of the land. Apart from that in a democratic society citizens have a right to contend, debate or maintain that a law has not been correctly framed by the State in terms of the mischief sought to be suppressed or that the law promulgated by the State ought to contain adequate safeguards against its misapplication or misuse by motivated persons. It goes without saying that seeking improvement of a manmade law in respect of a religious matter for better or proper enforcement of such law does not ipso facto amount to criticizing the religious aspect of such law. An example at hand is that of the Hudood laws introduced in this country in the year 1979 which were followed by persistent protest against their misapplication and misuse against Criminal Appeals No. 210 and 211 of 2015 24 weaker segments of the society and religious minorities which protest had led to various amendments made in those laws and in the Pakistan Penal Code and the Code of Criminal Procedure from time to time in the later years. For instance, through an amendment section 156-B had been introduced in the Code of Criminal Procedure which provides as follows: “156-B. Investigation against a woman accused of the offence of Zina.- Notwithstanding anything contained in this Code, where a person is accused of offence of zina under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (VII of 1979), no police officer below the rank of a Superintendent of Police shall investigate such offence nor shall such accused be arrested without permission of the Court. Explanation.-- In this section ‘zina’ does not include ‘zina- bil-jabr’.” Section 156-B, Cr.P.C. did not tinker with the offence of Zina itself or with the religious aspects of the same but through introduction of some procedural safeguards it only made it difficult for an innocent person to be maliciously subjected to an unnecessary investigation or trial for that offence. Keeping in view the strong religious sentiments in our society it ought to be understood quite clearly that any call coming from serious quarters for reform in the laws regarding religion related offences can only be a call for introducing safeguards against misapplication or misuse of such laws by motivated persons and such call is ordinarily not to be construed as a call against the religious aspects of the offences covered by such laws. Similar is the case as far as the offence of blasphemy is concerned. It is of critical importance to mention here that in one form or the other laws against offending religious sentiments have been a part of the Pakistan (previously Indian) Penal Code since its enactment in the year 1860 by the British Government with an aim to protect the religious feelings, sensibilities and sensitivities of different religious groups or classes of persons. Section 295 has been a part of the Code since its inception and the same provides protection to places of worship of all religions so that the religion of any class of persons is not insulted. Through an amendment section 295-A was added to the Criminal Appeals No. 210 and 211 of 2015 25 Code in the year 1927 for preventing deliberate and malicious acts intended to outrage religious feelings or beliefs of followers of all religions. Later on the Code was further amended to include section 295-B against willful defiling, damaging or desecrating the Holy Qur’an and still later the Code was again amended and section 295-C was introduced against defiling the sacred name of the Holy Prophet Muhammad (peace be upon him). Such improvements of the Code over time through suitable amendments thereof was never considered as an affront to any religion and, therefore, a call for improvement of section 295-C, PPC for the purpose of providing safeguards against its misuse through leveling of false allegations ought not to be considered as objectionable because the religion of Islam loathes leveling of false allegations which is a serious offence in itself. A bare look at the definition of blasphemy contained in section 295-C, PPC shows that apparently the statutory definition restricts blasphemy to defiling the sacred name of the Holy Prophet Muhammad (peace be upon him) and even the learned counsel for the appellant impliedly considers such definition of blasphemy to be inadequate or incomplete because, on the basis of the views of some religious scholars, he maintains that criticizing the law regarding blasphemy also falls within the mischief of blasphemy. This by itself amply demonstrates that the definition of blasphemy contained in section 295-C, PPC may be considered by some to be needing improvement so as to bring it in line with the true scope of the concept of blasphemy and, likewise, there may be others who may feel that some procedural and other safeguards need to be introduced so that it should become difficult to level or prosecute a false allegation regarding commission of the offence of blasphemy. The above mentioned reference to introduction and amendment of the Hudood laws in the country makes it evident that in all matters, including religious, there is an on-going effort to keep the laws of the land updated through amendments so as to meet the emerging challenges and also to provide safeguards against mischievous manipulations, misapplication or misuse of the existing laws. It is an unfortunate fact which cannot be disputed that in many cases Criminal Appeals No. 210 and 211 of 2015 26 registered in respect of the offence of blasphemy false allegations are leveled for extraneous purposes and in the absence of adequate safeguards against misapplication or misuse of such law by motivated persons the persons falsely accused of commission of that offence suffer beyond proportion or repair. In one of the Judicial Training Toolkits prepared by the Legal Aid Society, Karachi the following statistics have been recorded: “The known blasphemy cases in Pakistan show that from 1953 to July 2012, there were 434 offenders of blasphemy laws in Pakistan and among them were, 258 Muslims (Sunni/Shia), 114 Christians, 57 Ahmadis, and 4 Hindus. Since 1990, 52 people have been extra-judicially murdered, for being implicated in blasphemy charges. Among these were 25 Muslims, 15 Christians, 5 Ahmadis, 1 Buddhist and a Hindu. During 2013, 34 new cases were registered under the blasphemy laws. While at least one death sentence for blasphemy was overturned during the year, at least another 17 people were awaiting execution for blasphemy and at least 20 others were serving life sentences. Although the government has never carried out a death sentence for blasphemy, NGOs reported that at least five persons accused of blasphemy had died in police custody in recent years. The majority of blasphemy cases are based on false accusations stemming from property issues or other personal or family vendettas rather than genuine instances of blasphemy and they inevitably lead to mob violence against the entire community.” In the case of Muhammad Mahboob alias Booba v. The State (PLD 2002 Lahore 587) a learned Division Bench of the Lahore High Court, Lahore had traced the history of the law of blasphemy in the sub-continent and had not only taken judicial notice of the rampant misuse of that law by unscrupulous people trying to settle their personal scores but had also pointed out the hazards of investigation of such cases by untrained and poorly advised investigating officers. Some of the observations made in that case are relevant to the present context and the same are, therefore, reproduced below: “15. Historically speaking the Blasphemy Law was enacted by the British to protect the religious sentiments of the Muslim minorities in the Sub-Continent before partition against the Hindu majority. After the creation of Pakistan, the Muslims themselves were in majority. Section 295-A of the Pakistan Penal Code was enacted in 1927. In 1980, section 295-A was added to the P.P.C. In 1982, section 295-B was introduced. While in 1986, Criminal Appeals No. 210 and 211 of 2015 27 section 295-C was legislated. Initially life imprisonment was the sentence prescribed. However, in 1991 this was replaced with mandatory death penalty. 16. It appears that ever since the law became more stringent, there has been an increase in the number of registration of the blasphemy cases. A report from the Daily Dawn of 18th July, 2002, says that between 1948 and 1979, 11 cases of blasphemy were registered. Three cases were reported between the period 1979 and 1986. Forty four cases were registered between 1987 and 1999. In 2000 fifty two cases were registered and strangely, 43 cases had been registered against the Muslims while 9 cases were registered against the non-Muslims. The report further states that this shows that the law was being abused more blatantly by the Muslims against the Muslims to settle their scores. Because the police would readily register such a case and without checking the veracity of the facts and without taking proper guidance from any well-known and unbiased religious scholar, would proceed to arrest an accused. That an Assistant Sub-Inspector or a Moharrir was academically not competent to adjudge whether or not the circumstances constitute act of blasphemy. -------------------------- 18. In this case we have observed that the investigation of this case which involves a death sentence and where the allegations were of blasphemy, was entrusted to an official of the rank of an Assistant Sub-Inspector who has himself admitted about his own level of education in his statement, the portions of which have been reproduced above. The D.S.P. (Legal) was never produced to state who guided him in proposing that a case of blasphemy was made out against the appellant. The most preposterous fact of the case is brought on the file by the statement of Adalat Khan (P. W.2), according to which pencils and markers, ordinarily obtainable from the market and purchased by someone other than the appellant, and secured through memo. Exh.P.A., were used as an incriminating evidence against the appellant/convict. -------------------------- 23. Needless to say that when the case of the prosecution was per se infirm going into a debate pertaining to Fiqah at the end of the trial Court was totally unnecessary, particularly when the learned trial Court had taken no help from any jurisconsult or any Islamic Scholar having known credentials. The nature of the accusations overwhelmed the trial Court to such an extent that it became oblivious of the fact that the standard of proof for establishing such an accusation and as required, was missing. Mere accusation should not create a prejudice or a bias and the duty of the Judge and as has also been ordained by our Holy Prophet (s.a.w.), is to ascertain the facts and the circumstances and look for the truth with all the perseverance at his command. -------------------------- 30. As we have seen in the recent past cases of such-like nature are on the increase and we have also observed element of mischief involved. This calls for extra care at the end of the Investigating Officers. Whereas, we have seen the failure, inefficiency and incompetence of the Investigating Officer in handling the present case with all its consequences. Therefore, we direct the Inspector-General of Police, Punjab, Lahore, to ensure that whenever such a case is registered, it be entrusted for Criminal Appeals No. 210 and 211 of 2015 28 purposes of investigation to a team of at least two gazetted Investigating Officers preferably those conversant with the Islamic Jurisprudence and in case they themselves are not conversant with Islamic Law, a scholar of known reputation and integrity may be added to the team and this team should then investigate whether an offence is committed or not and if it comes to the conclusion that the offence is committed, the police may only then proceed further in the matter. 31. In view of the sensitivities involved and the rise in the accusations of this type which can be easily made besides what is proposed on the investigational side, we further propose that the trial in such-like case be held by a Court presided over by a Judicial Officer who himself is not less than the rank of a District and Sessions Judge.” The procedural safeguards against misapplication or misuse of the law regarding the offence of blasphemy proposed or directed by the Lahore High Court, Lahore through the above mentioned judgment were never termed, and could never justifiably be termed, as blasphemous by any quarter. In this backdrop any call for reform of the law regarding the offence of blasphemy ought not to be mistaken as a call for doing away with that law and it ought to be understood as a call for introducing adequate safeguards against malicious application or use of that law by motivated persons. Commission of blasphemy is abhorrent and immoral besides being a manifestation of intolerance but at the same time a false allegation regarding commission of such an offence is equally detestable besides being culpable. If our religion of Islam comes down heavily upon commission of blasphemy then Islam is also very tough against those who level false allegations of a crime. It is, therefore, for the State of the Islamic Republic of Pakistan to ensure that no innocent person is compelled or constrained to face an investigation or a trial on the basis of false or trumped up allegations regarding commission of such an offence. 18. As a sequel to the discussion made above a conclusion is irresistible, unavoidable and inescapable that it was Malik Muhammad Mumtaz Qadri appellant who had committed the murder of Mr. Salman Taseer at the date, time and place alleged by the prosecution and also that the appellant had no factual or legal justification available with him for committing the said murder. In Criminal Appeals No. 210 and 211 of 2015 29 view of this conclusion reached by us the conviction of the appellant recorded by the trial court for an offence under section 302(b), PPC and upheld by the Islamabad High Court, Islamabad has been found by us to have been validly recorded and upheld. 19. We have also attended to the question as to whether the provisions of section 302(a), PPC stood attracted to this case or not and have found that although Malik Muhammad Mumtaz Qadri appellant had at all stages of this case admitted killing Mr. Salman Taseer yet he had always advanced some factual, legal or religious justifications for such act of his. The appellant had pleaded not guilty to the Charge framed against him and, therefore, it was not possible to equate his qualified admission regarding killing Mr. Salman Taseer with an unqualified confession of guilt so as to attract the provisions of sections 304 and 302(a), PPC to the facts of this case. 20. The next question to be considered is as to whether by committing the murder of Mr. Salman Taseer, the then Governor of the Province of the Punjab, the appellant had also committed the offence of ‘terrorism’ as defined by section 6 of the Anti-Terrorism Act, 1997 or not which offence is punishable under section 7(a) of the said Act. Section 6 of the Anti-Terrorism Act, 1997, as it stood at the time of the present occurrence, provided as follows: “6. Terrorism.—(1) In this Act, “terrorism” means the use or threat of action where: (a) the action falls within the meaning of subsection (2), and (b) the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society; or (c) the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause. (2) An “action” shall fall within the meaning of subsection (1), if it: (a) involves the doing of anything that causes death; Criminal Appeals No. 210 and 211 of 2015 30 ---------------------------- (3) The use or threat of any action falling within sub-section (2) which involves the use of firearms, explosive or any other weapon is terrorism, whether or not sub-section (1)(c) is satisfied. (4) In this section “action” includes an act or a series of acts. (5) In this Act, terrorism includes any act done for the benefit of a proscribed organization. (6) A person who commits an offence under this section or any other provision of this Act, shall be guilty of an act of terrorism. (7) In this Act, a “terrorist” means:- (a) a person who has committed an offence of terrorism under this Act, and is or has been concerned in the commission, preparation or instigation of acts of terrorism. (b) a person who is or has been, whether before or after the coming into force of this Act, concerned in the commission, preparation, or instigation of acts of terrorism, shall be included in the meaning given in clause (a) above.” A plain reading of section 6 of the Anti-Terrorism Act, 1997 shows that while defining ‘terrorism’ the said section bifurcates the same into two parts, the mens rea for the offence falling in section 6(1)(b) or (c) and the actus reus of the offence falling in section 6(2) of the Act and in order to attract the definition of terrorism in a given case the requisite mens rea and actus reus must coincide and coexist. The provisions of section 6(5), (6) and (7) of the Act also indicate that there may be some other actions of a person which may also be declared or recognized as acts of terrorism by some other provisions of the same Act. Restricting ourselves to the provisions of section 6 of the Anti-Terrorism Act, 1997 for the present purposes we note that in a case where the action involves the doing of anything that causes death [section 6(2)(a)] and such causing of death is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect or create a sense of fear or insecurity in society [section 6(1)(b)] or such causing of death is for the purpose of advancing a religious, sectarian or ethnic cause [section 6(1)(c)] there the causing of death of the victim is to be accepted and treated as terrorism triable exclusively by an Anti-Terrorism Court. As far as the case in hand is concerned the action of Malik Criminal Appeals No. 210 and 211 of 2015 31 Muhammad Mumtaz Qadri appellant involved firing at Mr. Salman Taseer and thereby causing his death and, thus, his actus reus fell within the ambit of section 6(2)(a) of the Anti-Terrorism Act, 1997. As regards the appellant’s mens rea he had himself stated in his statement recorded by the trial court under section 342, Cr.P.C. that the murder of Mr. Salman Taseer committed by him was “a lesson for all the apostates, as finally they have to meet the same fate”. That statement of the appellant clearly established that he not only wanted to punish Mr. Salman Taseer privately for the perceived or imagined blasphemy committed by him but the appellant also wanted to send a message or teach a lesson to all others in the society at large who dared to follow Mr. Salman Taseer’s suit. In this view of the matter the causing of death of Mr. Salman Taseer by the appellant was surely designed to intimidate or overawe the public or a section of the public or to create a sense of fear or insecurity in the society so as to attract the requisite mens rea contemplated by section 6(1)(b) of the Anti-Terrorism Act, 1997. Apart from that it cannot be seriously contested that the appellant had committed the murder of Mr. Salman Taseer for the purpose of advancing a religious cause and, thus, even the mens rea contemplated by section 6(1)(c) of the Anti-Terrorism Act, 1997 stood fully attracted to the case of the appellant. In these circumstances we have entertained no manner of doubt that the action of the appellant and the intention, design or purpose behind such action fully attracted the definition of terrorism contained in section 6 of the Anti-Terrorism Act, 1997 and, therefore, he was correctly and justifiably punished by the trial court under section 7(a) of the said Act for committing the offence of terrorism. In paragraph No. 44 of the impugned judgment the Islamabad High Court, Islamabad had set aside the appellant’s conviction and sentence recorded by the trial court under section 7(a) of the Anti- Terrorism Act, 1997 on the sole ground that sufficient evidence had not been brought on the record by the prosecution to establish that the murder committed by the appellant had in fact created any sense of fear or insecurity in the society. We have found such an approach adopted by the Islamabad High Court, Islamabad vis- Criminal Appeals No. 210 and 211 of 2015 32 à-vis the offence of terrorism to be utterly misconceived. The provisions of section 6(1)(b) of the Anti-Terrorism Act, 1997 quite clearly contemplate creation of a sense of fear or insecurity in the society as a design behind the action and it is immaterial whether that design was actually fulfilled or not and any sense of fear or insecurity was in fact created in the society as a result of the action or not. It is the specified action accompanied by the requisite intention, design or purpose which constitutes the offence of terrorism under section 6 of the Anti-Terrorism Act, 1997 and the actual fallout of the action has nothing to do with determination of the nature of offence. In this view of the matter we find ourselves in agreement with the learned Advocate-General, Islamabad that Malik Muhammad Mumtaz Qadri appellant’s acquittal by the Islamabad High Court, Islamabad from the charge under section 7(a) of the Anti-Terrorism Act, 1997 is liable to be set aside and consequently his conviction for the said offence recorded by the trial court needs to be restored. 21. It has been argued by the learned counsel for the appellant that the Charge framed in this case contained only one count in respect of committing “the offence of qatl-e-amd punishable under clause (a) of section 7 of the Anti-Terrorism Act, 1997 read with sections 302 and 109, PPC” and as no separate charge had been framed by the trial court in respect of an offence under section 6 read with section 7(a) of the Anti-Terrorism Act, 1997, therefore, after recording the appellant’s conviction and sentence for an offence under section 302(b), PPC the trial court could not separately and additionally convict and sentence the appellant under section 7(a) of the Anti-Terrorism Act, 1997. We have examined this argument with reference to the record of the case and have observed that at no stage of his trial the appellant had ever raised any objection in the above mentioned regard or had ever claimed that he had been misled or prejudiced on the basis of any irregularity in the Charge framed or on account of any misjoinder of charges. In view of such conduct of the appellant before the trial court the provisions of section 537, Cr.P.C. provide Criminal Appeals No. 210 and 211 of 2015 33 a complete answer to the argument advanced by the learned counsel for the appellant in this regard. Apart from that this Court has clarified in many cases that the offences of murder and terrorism are distinct and separate offences and a person found guilty of committing murder while committing the offence of terrorism is to be convicted and sentenced separately for the said offences. In the present case the trial court had followed the law declared by this Court in that respect and, thus, no legitimate exception can be taken to the course adopted by the trial court in that regard. 22. As regards the sentences passed or to be passed against Malik Muhammad Mumtaz Qadri appellant both the learned counsel for the appellant have argued with emphasis that in the peculiar circumstances of this case the appellant does not deserve a sentence of death either for the murder committed by him or for indulging in terrorism. In this regard it has been argued that the appellant had no personal enmity with Mr. Salman Taseer and his only motivation for committing the murder of Mr. Salman Taseer was religious. It has also been argued that the appellant had been provoked firstly by the Mst. Asia Bibi related blasphemous utterances of Mr. Salman Taseer and secondly by his verbal exchange with the appellant immediately before his murder and, thus, the case in hand was a case of a continuing provocation as well as of grave and sudden provocation offered to the appellant at the spot. It has further been argued that the motive set up in the FIR had not been proved by the prosecution and lack of proof of motive set up by the prosecution is a valid ground for reduction of a sentence of death to imprisonment for life on a capital charge. It has lastly been pointed out in this context that according to the record of the case the appellant had acted under the influence of some religious speakers on the basis of whose inciting, provocative and instigating speeches made in a religious meeting the appellant had made up his mind to kill Mr. Salman Taseer and, thus, his conduct in the matter was not that of a free agent acting on his own. As against that the learned Advocate-General, Islamabad has Criminal Appeals No. 210 and 211 of 2015 34 maintained that the appellant was a trained police officer who was deputed to guard Mr. Salman Taseer against any physical harm but while performing that duty the appellant had allowed his personal emotions and feelings to overtake his official responsibility and, therefore, the treachery committed and the deception resorted to by the appellant had rendered him undeserving of any sympathy in the matter of sentence. 23. We have carefully attended to the above mentioned contentions of the learned counsel for the appellant and the learned Advocate-General, Islamabad with reference to the record of the case. As regards the asserted religious motivation of the appellant we note that even if the appellant had entertained an impression about commission of blasphemy by Mr. Salman Taseer and even if he was motivated by any religious sentiment in that regard still the appellant could not kill Mr. Salman Taseer at a time when the appellant was performing the duties of a guard of Mr. Salman Taseer and was performing official functions, wearing an official uniform, using an official weapon and possessing officially supplied bullets. The learned Advocate-General, Islamabad has termed such conduct of the appellant to be treacherous because he had killed a person given under his protection and he had employed deception for the purpose which amounted to dishonourable conduct. We have been told that the appellant was born in a religious family and had been brought up in religious traditions. If that were so then the appellant would have been aware that a person given in his protection, whatever be the credentials of such person, could not be deprived of his life by the appellant himself and that committing such person’s murder by the appellant would offend against religious precepts or traditions. The appellant’s grooming in religious traditions would also have taught him to distinguish between the requirements of his job for which he was paid from the public exchequer and acting on the basis of his personal sentiments. The appellant’s religious training would also have guided him in the matter of discerning between hearsay and fact and he would have been conscious that, as Criminal Appeals No. 210 and 211 of 2015 35 referred to in the opening lines of this judgment, Almighty Allah has warned against believing hearsay or conducting oneself on the basis of unverified news or information. In this backdrop the self- serving argument based upon religious motivation of the appellant has been found by us to be unacceptable, particularly when this argument is squarely based upon an alleged commission of blasphemy by Mr. Salman Taseer which assertion had never been proved before the trial court through any lawfully adduced evidence at all. 24. What has been observed by us in the preceding paragraph can also be said about the argument that the appellant was provoked by some earlier utterances attributed to Mr. Salman Taseer and by the verbal exchange taking place at the spot as it has already been concluded by us above that none of those two events had been proved by the appellant before the trial court in accordance with the law and the onus of proof in that respect was on the appellant. We have also concluded above that the story advanced by the appellant about an exchange of words between him and Mr. Salman Taseer at the place of occurrence was nothing but an afterthought. It has been argued before us that great number of injuries caused by the appellant to his victim showed that the appellant had received grave provocation but this aspect of the matter again stems from the story belatedly advanced by the appellant about a verbal exchange between him and the victim at the spot which story had never been proved by the appellant through any positive evidence at all. A ground for mitigation of sentence cannot be pressed into service on the basis of something which had never been proved on the record. 25. The argument based upon the motive set up by the prosecution having remained unproved has also failed to impress us. The motive asserted in the FIR was that Mr. Salman Taseer had his own point of view in respect of various important national issues and for that reason different religious and political groups were indulging in serious propaganda against him and were also Criminal Appeals No. 210 and 211 of 2015 36 issuing threats that he would be murdered. The prosecution might have remained unable to establish involvement of any religious or political group in the murder of Mr. Salman Taseer but it had certainly succeeded in proving that the appellant’s motivation for the murder of Mr. Salman Taseer was nothing but some of his views although the contents of those views and those views being blasphemous had never been established by the appellant in accordance with the law as the onus for proving the same was exclusively on him. The place of motive in a case of murder is to establish as to who would be interested in killing the person murdered and such factor is to provide corroboration to the ocular account furnished by the prosecution but where the accused person admits killing the deceased there the primary purpose of setting up the motive stands served. According to Article 21 of the Qanun-e-Shahadat Order, 1984 a motive set up by the prosecution may be proved even by the conduct of the accused person and the conduct of the appellant in the present case had gone a long way in proving the motive set up by the prosecution. Apart from that Article 2(4) of the Qanun-e-Shahadat Order, 1984 provides that “A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.” In the circumstances of this case the motivation of the appellant was so obvious that only an imprudent man could conclude that his motivation was other than what the prosecution had asserted. Considering the prosecution’s case regarding the motive in juxtaposition with the appellant’s stance and conduct we have felt no hesitation in concluding that the prosecution had succeeded in proving the motive set up by it and, therefore, the argument that the sentence of death may be withheld in this case on account of lack of proof of motive has no legs to stand upon. 26. The contention that the appellant had acted under the influence of some others and, thus, his culpability stood diminished on that score has been found by us to be a contention Criminal Appeals No. 210 and 211 of 2015 37 which is not based upon any evidence whatsoever. Although it had been alleged in the FIR that the appellant had committed the murder of Mr. Salman Taseer at the behest of some political and religious groups and in his confessional statement recorded by a Magistrate under section 164, Cr.P.C. the appellant had said something about his inspiration for the murder coming from the speeches made by some persons during a religious meeting yet none of those factors carried any evidentiary value at all. An FIR is not a substantive piece of evidence and the prosecution had not brought even an iota of evidence on the record regarding the appellant acting at the behest of anybody else. The appellant’s statement recorded under section 164, Cr.P.C. was inadmissible in evidence because it had unlawfully been recorded on oath. Apart from that in his written statement submitted before the trial court under section 265-F(5), Cr.P.C. and also in his statement recorded by the trial court under section 342, Cr.P.C. the appellant had abandoned the above mentioned stand taken by him in his statement recorded under section 164, Cr.P.C., he had declined to make his own statement before the trial court on oath under section 340(2), Cr.P.C. and he had also failed to produce any witness in his defence. In these circumstances the claim that the appellant had acted under the influence or at the behest of somebody else was a claim which was based upon no evidence at all. It may be pertinent to observe in this context that at the time of the present occurrence the appellant was not a child of an impressionable age but was a fully grown up and trained police officer and, thus, his acting under the influence of somebody else has appeared to us to be a contention which is even otherwise difficult to accept. 27. There are some other aspects of this case which are relevant to the issue of sentencing of the appellant and they must also be stated for the record. The law of the land does not permit an individual to arrogate unto himself the roles of a complainant, prosecutor, judge and executioner. The appellant was a trained police officer who knew the importance of recourse to the law. The Criminal Appeals No. 210 and 211 of 2015 38 appellant was very well aware of the case of Mst. Asia Bibi who was alleged to have committed the offence of blasphemy and through the course of law she had been convicted for that offence by a trial court. If the appellant had suspected Mr. Salman Taseer to have committed the offence of blasphemy then he should also have adopted the legal course knowing that the embargo contained in the provisions of Article 248 of the Constitution against criminal proceedings against a serving Governor of a Province was only temporary in nature and not permanent. Apart from that the appellant had acted in this case on the basis of nothing but hearsay and he had murdered the serving Governor of his Province without making any effort whatsoever to get his information about commission of blasphemy by Mr. Salman Taseer verified or confirmed. Throughout the world a police officer committing a crime is dealt with more sternly in the matter of his sentence than an ordinary person because an expectation is attached with a police officer that in all manner of circumstances he would conduct himself strictly in accordance with the law and under no circumstances he would take the law in his own hands. If the asserted religious motivation of the appellant for the murder committed by him by taking the law in his own hands is to be accepted as a valid mitigating circumstance in this case then a door shall become open for religious vigilantism which may deal a mortal blow to the rule of law in this country where divergent religious interpretations abound and tolerance stands depleted to an alarming level. It may also be relevant in the context of the appellant’s sentence that in the execution of his design he had riddled his victim’s body with as many as twenty-eight bullets causing thirty-two grievous injuries which clearly showed that the appellant had acted cruelly and brutally in the matter and such cruelty and brutality demonstrated by the appellant detracts from any sympathy to be shown to him in the matter of his sentence. Having said all that it is difficult to ignore that in his statement recorded under section 342, Cr.P.C. the appellant had also maintained that Mr. Salman Taseer used to indulge in different kinds of immoral activities. This part of the appellant’s statement Criminal Appeals No. 210 and 211 of 2015 39 had opened a window to the appellant’s mind and had clearly shown that it was not just the alleged commission of blasphemy by Mr. Salman Taseer which prompted the appellant to kill him but there was some element of personal hatred for Mr. Salman Taseer which too had played some part in propelling the appellant into action against him. Such mixture of personal hatred with the asserted religious motivation had surely diluted, if not polluted, the acclaimed purity of the appellant’s purpose. For all the reasons detailed above no occasion has been found by us for reducing the appellant’s sentence from death to imprisonment for life for the offences of terrorism and murder committed by him. The usual wages for the crimes of the nature committed by the appellant is death and in the circumstances of this case the appellant deserves no less. 28. As a sequel to the discussion made above Criminal Appeal No. 210 of 2015 filed before this Court by Malik Muhammad Mumtaz Qadri convict is dismissed, Criminal Appeal No. 211 of 2015 preferred before this Court by the State is allowed and consequently the convictions and sentences of Malik Muhammad Mumtaz Qadri recorded by the learned Judge, Special Court-II, Anti-Terrorism, Rawalpindi Division & Islamabad Capital Territory on 01.10.2011 are restored. (Asif Saeed Khan Khosa) Judge (Mushir Alam) Judge (Dost Muhammad Khan) Judge Islamabad October 07, 2015 Approved for reporting.

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE ASIF SAEED KHAN KHOSA MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL Criminal Appeal No.218 of 2015 And Jail Petitions No.249 & 454 of 2015 (On appeal from the judgment dated 27.1.2015 passed by the Lahore High Court, Rawalpindi Bench in Crl.Appeal No.706-T of 2010 and Crl.Appeal No.707-T/2010) Intekhab Ahmad Abbasi (in Crl.A.No.218/15) Zafar Ali (in JP 249/15) And (i) Muhammad Kabeer (ii) Muhammad Ishaq @ Kamran (iii) Qamar Zaman (iv) Abid Khan (in JP 454/15) …Appellant/Petitioners VERSUS The State etc. … Respondent(s) For the appellant(s): Mr. Basharatullah Khan, ASC Syed Rifaqat Hussain Shah, AOR (in Crl.A. 218/15) For the Petitioners: Nemo in both For the State: Mr. Muhammad Jaffar, DPG, Pb. Date of hearing: 30.11.2017 JUDGMENT Dost Muhammad Khan, J.— Jail Petitions No.249 and 454 of 2015 are barred by 259 days, however, vide Crl.M.A No.1573/15 condonation of delay has been sought on valid reasons, therefore, delay in filing of these jail petitions is condoned. Crl.M.A. is disposed of. 2. At a trial, held by the learned presiding Judge, Anti- Terrorism Court Rawalpindi/Islamabad, appellant Intikhab Ahmad Crl.A. 218/15 etc. 2 Abbasi (in Crl.Appeal No.218/2015), petitioner Zafar Ali (in JP 249/15) and petitioners of Jail Petition No.454/2015 namely, (i) Muhammad Kabeer (ii) Muhammad Ishaq @ Kamran (iii) Qamar Zaman and (iv) Abid Khan were convicted and were sentenced to life imprisonment u/s 120-B PPC read with section 7 ATA with fine of Rs.2,00,000/- or in default thereof six months S.I.. They were further sentenced to life imprisonment u/Ss.4 & 5 of the Explosive Substances Act, each on each count. They were sentenced to seven years R.I. u/s 420 PPC with fine of Rs.50,000/- or in default thereof to suffer three months S.I., excluding petitioner No.2 in JP No.454/15. U/s 468 read with S.471 PPC, each one was sentenced to seven years R.I. with fine of Rs.50,000/- each or in default three months S.I. each, except petitioner No.2. While their co-accused namely, (i) Muhammad Sajjad (ii) Muhammad Zameer (iii) Farhan Mehmood (iv) Abdul Sattar and (v) Noor Muhammad @ Ustad Jee were acquitted on the basis of benefit of doubt. The sentences awarded to the convicts were directed to run concurrently with benefit of S.382-B Cr.P.C. 3. This single judgment shall also decide connected Jail Petitions No.249 and 454 of 2015 being the outcome of the same judgment and because evidence and questions of law involved are identical. Prosecution Story: 4. The initial story set up in FIR No.291/08 is that on a source report of intelligence network that, some explosive laden vehicles have entered Rawalpindi and the terrorists are likely to explode the same at important public places to cause massive destruction, both of property and human life, all law enforcing agencies/police were put on alert. Crl.A. 218/15 etc. 3 5. On 6.6.2008, SHO PS Sadiq Abad, Rawalpindi on a tip off that the vehicles were parked in Awan Service Station parking lot, situated in Dhoke Kala Khan and the terrorists were likely to make departure for the target therefore, he along with the police party of the PS and companies of Elite Force reached there immediately, cordoned off the area and found (i) Abdul Manan of Murree, district Rawalpindi (ii) Abid Khan, district Tank (iii) Muhammad Ishaq, Gulbahar Colony, Peshawar (iv) Muhammad Kabeer, Havelian, district Abbottabad (v) Qamar Zaman of district D.G. Khan and (vi) Zafar Ali of Darra Adam Khel (F.R Kohat), standing thereby, who on seeing the heavy contingent got into the three vehicles however, they were brought down. On search of the vehicles, from the corolla car four pressure cookers full of explosive and two tins of milk also full of explosive, nuts and bolts were recovered. From Land-cruiser, No. LXH 7860 five pressure cookers packed with explosive, three milk containers of the same nature, two plastic containers full of diesel fuel, while from land- cruiser No.JH-175 six pressure cookers and two milk containers full of explosive, two plastic cane full of diesel fuel, three small bags containing nuts and bolts were recovered. All of them were arrested, as the accused had planned to indulge in subversive activities, causing mass devastation, both of life and property. The “Murasla” report for crimes u/Ss. 7 ATA, 120-B PPC and sections 4 & 5 of the Explosive Substances Act was allegedly sent to the Police Station where the above FIR was registered at 8:40 am on the same day i.e.6.6.2008. 6. In view of the nature of the crime, the Ministry of Interior, Government of Pakistan, constituted JIT comprising officers of FIA and a Deputy Superintendent of Police. During interrogation Abdul Manan accused arrested on the spot, happened to be Intikhab Ahmad Abbasi, Crl.A. 218/15 etc. 4 appellant. During the course of investigation further recoveries were made at the instance of the petitioners from the other set of acquitted accused. 7. The JIT through self crafted design, gave another colour to the alleged crime, portraying that the accused were deputed and sent by the then terrorist commander Bait-Ullah Mehsud (dead) Qari Hussain and others to assassinate General(R) Pervez Musharraf, the then head of the State and Army. It was brought on record that at some occasion unsuccessful attempt was made on his life when the accused in the three explosive laden vehicles chased his cavalcade from Rawalpindi to Islamabad but due to mechanical fault caught by one vehicle, they could not execute the plan and returned unsuccessful. One Mansoor was shown as their handler at Rawalpindi who had hired room for accommodating the accused but that place is still untraced. 8. Thereafter, as the story goes they were directed to strike at the GHQ with explosive laden vehicles to assassinate General (R) Pervez Musharraf however, before executing the second plan they were apprehended by the police in the above manner. 9. Cases of such nature creating that much of sensation always receive wide publicity like in this case when the attention of print and electronic media both, national and international was attracted. Therefore, in the appraisal and re-appraisal of evidence courts are required to take extra degree of caution so that it might not be led to a wrong conclusion due to over-smarting design of the investigating agency. Crl.A. 218/15 etc. 5 10. Majority of the accused from whom large quantity of the same kind of explosive powder was recovered at the instance of the present accused, have been acquitted by both the Courts below, disbelieving the major portion of the prosecution case. The Prosecution itself has divided its case into three separate parts, which are as follows:- “(i) The arrest of the petitioners/appellant along with explosive laden vehicles, which were connected with the batteries of the vehicles and push buttons on the front penal, to be detonated and cause explosions; (ii) that, some of the accused had received the command and directions personally from the notorious commander Bait- Ullah Mehsood and two other commanders, referred to above, to carry out the suicidal attacks on General (R) Pervez Musharraf and for their safe stay, their handler namely Mansoor had hired room somewhere, where the accused were to take rest at night; and (iii) except Intikhab Ahmed Abbasi, appellant, the rest of the accused/petitioners confessed their guilt and the story of the Prosecution so set up received confirmation.” 11. Attending to the first part, the very arrest of the appellant/petitioners from the parking lot of Awan Service Station with explosive laden vehicles appears to be highly intriguing one. The heavy contingent of police raided the premises, surrounded it from all four corners and during the arrest, recovery and seizure proceedings not a single public witness was associated. Even the owner, caretaker/manager and particularly the watchman, who was deputed for the look-after and care of the parked vehicles to ensure that no vehicle parked inside is taken away by unauthorized person, was not Crl.A. 218/15 etc. 6 available or could not be procured. The large contingent of police remained on the crime scene for many hours but out of all these persons, none was available. This mysterious circumstance by itself would bespeak about the proceedings conducted behind the blind curtain out of the sight of such persons. Even the register maintained in the office of the service station showing the entries about the parked vehicles and its particulars was not taken into possession rather it was arranged after many days. The said register was containing lose sheets, blank pages and the rest were half filled besides that the most disturbing aspect of the matter is that all the three vehicles laden with explosive substance (potassium chloride) were not mentioned therein and they were shown one day earlier at one page. Who was the author of these entries and who among the three was maintaining the register, still remains a begging question yet to be answered, as on 14.6.2008 while taking the said register into custody, the owner of the premises, Raja Qaiser, his brother Faisal Shabbir and Caretaker Sajawal were present but none of them was examined to ascertain the authorship of the entries in the register. None of the three was cited as a witness in the calendar nor anyone of them was produced at the trial and once the learned courts below discarded this piece of primary evidence, the same had rendered the entire story about the arrest of the accused with explosive laden vehicles from the above premises has become unreliable. The noticeable contradictions amongst the prosecution witnesses interse apart, the two learned courts below have rightly discarded this primary piece of evidence and in the absence of that no reliance can be placed on the testimony of highly interested prosecution witnesses when the Crl.A. 218/15 etc. 7 fairness and honesty in the course of investigation from the very inception has become a fantasy and drastically eroded. Even the report of NADRA about the forged identity cards allegedly recovered from the accused was not brought on record at the trial to prove the charge of forgery. 12. The Head of the J.I.T., Nasrullah Gondal, Assistant Director, FIA (PW-18), to whom the accused and the explosive laden vehicles were handed over by the SHO, Police Station, Sadiqabad, Rawalpindi, when was asked by the defence, could not trace out or refer any case diary showing the number of the vehicles and other articles entrusted to him on 7.6.2008. He also could not tell the trial court that the appellant/petitioners had made several complaints to the Judge, Anti-Terrorism Court, Director General, FIA and other authorities against the mode and manner of the investigation and to record their defence plea. It is a matter of record that all the accused were kept under tight security and during transit to the court or way back, the level of high security was further enhanced. It is absolutely unbelievable that this witness did not know about the nature of the complaints lodged by the accused when he was the Incharge/Head of the JIT all the times. The inference would that he has deliberately suppressed the truth from the court. He also admitted cuttings, over- writings and interpolation made in the recovery memos about the quantity of the explosive substance, recovered from the accused. The substituted entries were not initialed by him. He also admitted at the trial that no Prado Jeep was mentioned in the register of Awan Service parking Lot rather Pajero Jeep was mentioned and even the initial date of recovery was scored off and was substituted by 8.6.2008. Crl.A. 218/15 etc. 8 13. It is also a matter of record that the accused suffered many injuries during their custody, however, an unbelievable and amazing story was tailored that these injuries were suffered by the accused when they were taken to Wah Cantt/Taxila to point out the house of another accomplice but when they could not do so, while coming back the accused jumped at the metalled road, started rolling thereon and sustained the injuries. To muffle and burry deep the torture given to the accused, he got treated the injured accused from a private clinic instead of taking them to the government hospital. The legitimate inference would be that due to severe torture, when the accused got frustrated and had broken down and when they could not point out the house of the so called accomplice they were treated ruthlessly. Another vital aspect of the case is that potassium chloride allegedly recovered from the accused, was described as explosive substance, however, the chemical formula of explosive substance is ‘potassium nitrate/black powder, sulphur, phosphorus nitrate, powder aluminum or grain dust, potassium chlorate and many other chemicals if are mixed together, would constitute high intensity explosive substance to cause massive destruction/devastation through explosion, therefore, a question arises as to whether potassium chloride recovered in this case is a sole ingredient, which could be termed high intensity and of velocity explosive substance to destroy a well-fortified building/structure and cause destruction of both life and property. The report of the incharge BDS thus appears to be inconclusive and it cannot be categorized to be a right opinion on the subject. Crl.A. 218/15 etc. 9 14. According to the consistant stance, the conspiracy punishable u/s 120-B PPC was hatched in South Wazirustan and Miran Shah, the headquarter of North Wazirustan however, none of the accused was taken to those places to point out as the investigating agency could have easily undertaken that process with the permission of the Interior Ministry, thus, the offence u/s 120-B PPC remained un- established. It is the prosecution case that the accused have not undergone any tough training to carry out the assigned task. The nation is victim of the terrorist activities which are carried out by highly trained and skilled terrorists and the militant commanders would never venture to send such raw hand and inexperienced persons for targeting the most high profile person and the place like GHQ. Even the accused were not taken to the place for pointing out where they first made unsuccessful attempt on the cavalcade of the then Chief of Army Staff and this part of the story is till a mystery. How the accused knew about the layout plan and about the location of the office of the Chief of Army Staff when no map or guideline materials were recovered from them, is another lacuna in the case. 15. Within no time after the arrest of the accused ‘Murasla Report’ was sent for registration of the case and Section 120-B PPC was also inserted therein, when by then, the accused were neither interrogated nor they had disclosed about the place, time where they hatched the conspiracy and that too in FATA areas. This fact by itself would suggest that the investigating agency from the very beginning virtually acted under the influence of self-crafted theory of labeling the case of a high profile. Till the close of the investigation they could not wriggle out of that influence and did not act with fairness and application of Crl.A. 218/15 etc. 10 independent mind. To the contrary, every effort was made albeit fallaciously to score points in the subject case after it had got extraordinary publicity and to earn undue fame at the cost of life of the accused. 16. It is not denied that before the present occurrence two unsuccessful attempts at the life of former Chief of Army Staff were made. In the first one, a time/remote control device was detonated under the bridge when the cavalcade of the then General had hardly passed through the same. The second one was the most dreadful suicidal attack which was made on his cavalcade on 25th December, 2003 near ‘Jhanda Cheechi’, Rawalpindi when explosive laden vehicle was blasted near his car and he narrowly escaped. It is a hard fact that after the second attack it was decided firmly to trace out the mastermind and all suspects involved in such attacks/terrorist activities. A massive hunt was launched by all the law enforcing agencies and many suspects were arrested and many were released after tough interrogation. Judged from this angel, the plea of the appellant/petitioners gets support that they were arrested earlier by some agency personnels and after long detention were then handed over to the local police. 17. Considering the case in the above background, it would be fair to draw an inference that the accused were coerced and pressurized to make confession after remaining in the custody of the J.I.T. for many weeks blind foldedly at unknown places. 18. It is an admitted fact that the petitioners (i) Abid (ii) Ishaq (iii) Qamar were produced before the area Judicial Magistrate on 24.6.2008 but they refused to make confessions thus, they were Crl.A. 218/15 etc. 11 remanded to judicial custody (prison). It is highly shocking and no prudent mind would believe the false story that when these accused were brought out of the court, at that point of time they disclosed to make confessions when by then they were to be out of the clutches and reach of the investigating agency. Here, intrigues were pressed into service and instead of complying with the order of judicial remand of the accused, the investigating agency disregarding the same, applied to the District & Sessions Judge, Rawalpindi to depute Special Magistrate for recording their confessions. The confessions thus procured with the courtesy of the Special Magistrate besides being irregular, have lost judicial efficacy and legal worth. Out of the two Special Magistrates who recorded the confessions of two sets of the accused, one was subsequently appointed on a high post in the Directorate of Anti-Corruption probably as a reward for towing his judicial authority with the wish and will of the investigating agency. The two special Magistrates have acted the police way, knowing well that the accused had remained for weeks in the custody of high profile investigating agency but all of them were given half an hour time to re-think and re-compose about the making of confession. During half an hour time accused were made to sit in the retiring rooms of the two Special Magistrates. 19. Another ludicrous mode adopted by the Magistrates was that on each confessional statement of each accused, the signatures of the Head of the J.I.T. were obtained. When confronted at the trial with this novel procedure they adopted, an artificial explanation was given to the effect that it was for the identification of the accused for making confession before them. Every human being invariably has some identification mark on his face, hands and trunk of the body which is Crl.A. 218/15 etc. 12 always considered sufficient in this regard. The legitimate inference would be that this abnormal course was adopted for the satisfaction of the in-charge of the investigation. It is a classic example of violating the most sacred judicial obligation and breach of duty. 20. Admittedly some of the accused were illiterate or under- metric while some were speaking Pashto. Both the Magistrates could not understand the words spoken by them but no translator/interpreter was appointed within the meaning of Section 543 of Code of Criminal Procedure to record their statements in the words exactly spoken by them. It is also strange enough that the investigating officer recorded the statements of both the Magistrates u/s 161 Cr.P.C. about the proceedings of the confession recorded by them, a phenomenon absolutely alien to the judicial realm. 21. We are constrained to re-emphasize that this sacred judicial obligation must be performed in a strict judicial manner observing all safeguards and precautions as laid down in the High Court Rules and Orders. Printed proforma containing questionnaire is not to be used because it amounts to filling the blanks and is not in accord with the requirements of law and rules. In view of the changing trend of investigation, particularly in sensitive cases and keeping in view the phenomenon of forced disappearance of people and because in some cases the accused are not kept in the lock up of the notified police station therefore, the following additional questions may be put to accused person, when a situation of this nature arises, which is as follows:- (i) When and by whom you were arrested and from which place? Crl.A. 218/15 etc. 13 (ii) Where you were kept during custody by the police/investigating agency? (iii) Whether previously you were produced before any other Magistrate for recording confession and you had refused to confess? 22. The Government and all the State institutions charged with such duty are required to chisel out the blunt tools i.e. the investigating agencies and the prosecution to come to the expectations of the people in the changed scenario. This requires allocation of sufficient funds for the purpose to impart high skill and knowledge to these agencies including training through foreign experts. At the same time modern digital forensic labs/center of excellences in the provinces and Federal Capital be established on urgent basis with highly qualified staff on the subject of forensic science so that the real culprits involved in such ruthless and detestable crimes are timely punished for the crimes they commit. Even mobile, digital forensic laboratory be provided as a back-up force to reach any place well in time to collect forensic evidence from the crime scene and the surroundings. Simply and exclusively relying on the armed forces and semi armed forces killing the terrorists in encounter is not a complete solution to the elimination of the monster evil of terrorism. The most effective tool is the prevention of such crime. Effective and skillful investigation of the same and efficient prosecution of the terrorist in judicial process before the Anti-Terrorism Courts would suppress and eliminate this menace of high magnitude, provided further that Anti-Terrorism Courts are equipped with modern gadgets and all facilities provided and full protection is given to the Presiding Judges of such courts, the Prosecutors, Investigators and the Prosecution Witnesses. This would Crl.A. 218/15 etc. 14 provide enough safeguards in recording of convictions in view of the newly emerging situation in the country. 23. To prevent the occurrence of such crimes, the combined network of all intelligence agencies shall be put into correct channel to timely share the intelligence so collected. If the intelligence network is properly organized and combined together it would effectively plug the funding and secret financial sources now falling into the hands of the terrorist organizations. It is also essential that security/guards deployed on important installations, sensitive public places and State institutions shall be provided modern arms & ammunitions with protection gadgets so that they may be able to protect such places/institutions, at random targeted by the terrorists. The amount to be spent on such useful objectives would certainly minimize the needed military operations going-on in the country at the heavy cost from the public exchequer. The impossible would become possible if the outreach of the agencies/law enforcing authorities is made formidable and extraordinarily effective. The present system suffers from many loopholes and deficiencies in many ways to counter the menace of terrorism. All these suggestions and recommendations may be forwarded to the concerned Divisions/Ministries and the departments of the Provinces and those authorities who are assigned the task to counter the terrorism and terrorist activities. If peace and tranquility is fully restored it would definitely attract heavy investment in the country. After careful reappraisal of the evidence discussed above, we are entertaining no amount of doubt that the prosecution has failed to bring home guilt to the accused as the evidence furnished at the trial is full of factual, legal defects and is bereft of legal worth/judicial Crl.A. 218/15 etc. 15 efficacy, therefore, no reliance can be placed on the same. In view of the above discussion, Jail Petitions No.249 and 454 of 2015 are converted into appeals. All these three appeals including Crl. Appeal No.218 of 2015 are allowed by extending benefit of doubt to all the appellants and they are acquitted of all the charges leveled against them. These are the detailed reasons for our short order of even date, which is reproduced below:- “For reasons to be recorded later, Crl.Appeal No.218/15, filed by Intekhab Ahmad Abbasi is allowed and for similar reasons, Jail Petition No.249/15 filed by Zafar Ali and Jail Petition No.454/15 filed by Muhammad Kabeer, Muhammad Ishaq, Qamar Zaman and Abid Khan in case FIR No.291 dated 6.6.2018, registered by Police Station Sadiq Abad, District Rawalpindi for crimes u/Ss.420, 468, 120-B/471 PPC read with Ss.4 & 5 of the Explosive Substances Act and section 7 of the ATA, are converted into appeals and accordingly allowed. All the appellants are acquitted of all the charges leveled against them and all the above named appellants be set free forthwith if not required in any other case.” Judge Judge Judge Islamabad, the 30th November, 2017 Nisar /- “Approved For Reporting”

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.22-P/2014 (Against the judgment dated 8.6.2010 of the Peshawar High Court, Peshawar passed in Cr. Appeal No.88/2007) State through Director ANF …Appellant(s) VERSUS Parvez Khan & another …Respondent(s) For the Appellant(s) : Mr. Muhammad Tariq Shah, Special Prosecutor, Anti Narcotics Force For the Respondent(s) : N.R. Date of Hearing : 30.04.2019 ORDER Qazi Muhammad Amin Ahmed, J.- In a Punjab bound, Mazda truck bearing registration No.KG-5783, Parvez Khan and Ismail Khan, respondents herein were surprised by an Anti Narcotics Force contingent within the remit of Police Station Dera Ismail Khan. Upon search a huge cache of contraband comprising opium and charas weighing 576 kilograms was recovered from secret cavities of the vehicle. Indictment before a learned Judge Special Court (CNS), Peshawar, camp at Dera Ismail Khan, resulted into conviction under Section 9(c) of Control of Narcotic Substances Act, 1997; they were sentenced to imprisonment for life along with fine of rupees five lacs each or to undergo two years S.I. with benefit of Section 382-B of the Code of Criminal Procedure, 1898. Marwat Khan and Zaheer Shah, accomplice behind the consignment stayed away from law and stand proceeded accordingly. The vehicle was forfeited to the State. A learned division bench of Peshawar High Court acquitted the respondents from the charge on a variety of grounds, most prominent being a stated lack of conscious knowledge on part of Criminal Appeal No.22-P/2014 2 the respondents as the vehicle in question was registered in the name of one Muhammad Afaq, a resident of Karachi, who disowned ownership. It was further noted by the learned High Court that case property including the vehicle itself was not properly exhibited. Leave to appeal has been granted to the extent of Parvez Khan, respondent. Learned Law Officer contends that there was no occasion for the learned High Court to acquit the respondent from the charge in the face of massive recovery of contraband that could not be conceivably foisted upon the respondent and as such his acquittal from the charge on inconsequential omissions warrants interference by this Court. 2. Huge cache of different variety of contraband notwithstanding the prosecution does not appear to have aptly prosecuted its case; concomitantly lacunas noticed by the learned High Court cannot be viewed artificial or imaginary and hypothesis of respondent lack of conscious knowledge cannot be refuted without being imprudent. The appeal fails; Order of forfeiture of the vehicle in favour of the State is kept intact. Appeal dismissed. JUDGE JUDGE Islamabad, the 30th of April, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.231 of 2020 (Against the judgment dated 24.04.2017 passed by the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat in Crl. Appeal No.199-M of 2014) Shah Nawaz Khan …Appellant(s) Versus The State …Respondent(s) For the Appellant(s): Rana Abdul Latif Khan, ASC Mr. Mehmood A. Sheikh, AOR For the State: Mr. Anees M. Shahzad, State Counsel, KPK Date of hearing: 02.11.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Through leave of the Court, impugned herein is judgment dated 24.4.2017 by a learned Division Bench of the Peshawar High Court, Mingora Bench, whereby appellant’s conviction under section 9(c) of the Control of Narcotic Substances Act, 1997, returned by a learned Addl. Sessions Judge Chitral vide judgment dated 23.7.2014, has been upheld; he was tried alongside five others, since acquitted, for transportation of 12070 grams of cannabis in ten separate packs, concealed in a public vehicle No.3296/Peshawar registered in his name, intercepted by a contingent of Police Station Darosh District Chitral on 30.11.2012 while he was on the wheel. The appellant confronted indictment after retracting a detailed judicial confession recorded by a Judicial Magistrate (PW-3) whom he faced from the safety of judicial custody. 2. Heard. Record perused. 3. The learned trial Judge extended benefit of the doubt to Nizam-ud-din, co-accused, employed as a conductor on the possibility of want of conscious knowledge whereas let off Shah Nawaz, Ashiq Jan, Criminal Appeal No.231 of 2020 2 Abdul Nasir and Syed Hazrat, subsequently arrayed on the basis of appellant’s confession wherein they were blamed as privy to the crime, a course that went unchallenged, otherwise unexceptionable. However, we have not been able to sway for the same path vis-à-vis the appellant. Even if, appellant’s confession purportedly recorded by his own choice when he was already remitted into judicial custody, is excluded from consideration, the prosecution still possessed overwhelming evidence to establish his exclusive culpability, beyond doubt; he was not only on the driving seat but also owned the vehicle that carried huge cache of contraband, concealed in a secret cavity thereof; seizure of cash of Rs.152,000/- vide inventory adds to the credibility of operation carried out by the functionaries seemingly with no axe to grind. Testimony furnished by Abdul Hayat SHO (PW-1) and Sardar Wali Khan, SI/IO (PW-2) does not suffer from any flaw or infirmity; both of them comfortably faced cross-examination, otherwise hopelessly inconsequential and directionless. Surprisingly, presence of contraband in the vehicle is attributed to an unknown passenger, vehemently denied by Abdul Hayat, SHO (PW-1), a position that goes a long way to help out the prosecution, otherwise well entrenched on the issues of safe custody of the contraband and transmission of samples to the office of Chemical Examiner. Acquittal of co-accused, indicted on the basis of appellant’s confession as an unsuspecting carrier, does not bring him any benefit in retrospect. View taken by the Courts below being well within the remit of law does not call for interference. Appeal fails. Dismissed. Judge Judge Judge Islamabad, the 2nd November, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Qazi Faez Isa Mr. Justice Tariq Parvez Criminal Appeals No. 235 and 236 of 2010 (Against the judgment dated 08.04.2010 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No. 158 of 2006 and Murder Reference No. 486 of 2006) Muhammad Ameer (in Cr. A. 235 of 2010) Riyat Khan (in Cr. A. 236 of 2010) …Appellants versus Riyat Khan, etc. (in Cr. A. 235 of 2010) The State (in Cr. A. 236 of 2010) …Respondents For the appellants: Mr. Sana Ullah Zahid, ASC Mr. Ejaz Muhammad Khan, AOR (late) (in Cr. A. 235 of 2010) Syed Zulfiqar Abbas Naqvi, ASC Mr. Arshad Ali Ch., AOR (absent) (in Cr. A. 236 of 2010) For respondent No. 1: Syed Zulfiqar Abbas Naqvi, ASC Mr. Arshad Ali Ch., AOR (absent) (in Cr. A. 235 of 2010) For the State: Mr. Ahmed Raza Gillani, Additional Prosecutor-General, Punjab (in both cases) Date of hearing: 26.04.2016 JUDGMENT Asif Saeed Khan Khosa, J.: Criminal Appeal No. 236 of 2010 At about 12.00 Noon on 24.03.2004 Riyat Khan appellant had allegedly stabbed one Muhammad Afzal on the left side of his Criminal Appeals No. 235 and 236 of 2010 2 chest in Chak Thoa Mahram Khan within the area of Police Station Saddar, Talagang, District Chakwal which injury had proved fatal and the said Muhammad Afzal died two days later, i.e. on 26.03.2004. In respect of the said murder FIR No. 33 was registered at the above mentioned Police Station on 26.03.2004 on the basis of a dying declaration allegedly made by Muhammad Afzal deceased before the local police in a hospital. After a full- dressed trial the appellant was convicted by the trial court for an offence under section 302(b), PPC and was sentenced to death and to pay compensation but on appeal his sentence of death was reduced by the High Court to imprisonment for life. Hence, the present appeal by leave of this Court granted on 25.05.2010. 2. Leave to appeal had been granted in this case so as to reappraise the evidence in order to examine as to whether the prosecution had succeeded in establishing the appellant’s guilt beyond reasonable doubt or not. With the assistance of the learned counsel for the parties we have gone through the record of the case minutely. 3. The linchpin of this case was a dying declaration attributed to Muhammad Afzal deceased which declaration he had allegedly made before the local police in an injured condition in a hospital on 24.03.2004 and which was subsequently made the basis of an FIR two days later, i.e. on 26.03.2004. It has been found by us to be rather intriguing that if the dying declaration had actually been made by the deceased on 24.03.2004 before the police itself then why an FIR had not been chalked out on the basis of the same during the next two days. Another factor sufficient to raise an eyebrow in the context of the dying declaration is that Dr. Nazir Ahmed (PW2), under whose medical care Muhammad Afzal deceased was when alive, had categorically stated before the trial court that the police had not recorded any statement of Muhammad Afzal deceased in his presence and he had gone on to state that Muhammad Afzal deceased had never made any statement before him about the alleged occurrence. A dying Criminal Appeals No. 235 and 236 of 2010 3 declaration is an exception to the hearsay rule and, thus, the same is to be scrutinized with due care and caution, particularly in the backdrop of the observations made by different Courts about veracity of a dying declaration in the Province of the Punjab and a reference in this respect may be made to the cases of Bakhshish Singh alias Bakhshi and others v. Emperor (AIR 1925 Lahore 549), Tawaib Khan and another v. The State (PLD 1970 SC 13) and Usman Shah and others v. The State (1969 P.Cr.L.J. 317). In the case in hand it quite clearly appears that Muhammad Afzal deceased had no regard for the truth because he had categorically stated in the so-called dying declaration that he was taken to the hospital in an injured condition by Ghulam Abbas (PW9) and by one Noor Muhammad but the above mentioned doctor had contradicted the deceased by stating that the deceased had been brought to the hospital in an injured condition by a police constable and on that occasion no private person was accompanying the deceased. Even Ghulam Abbas (PW9) had given a big lie to Muhammad Afzal deceased by unambiguously stating before the trial court that he had not taken Muhammad Afzal deceased to the hospital in an injured condition at all. The other person who had statedly taken Muhammad Afzal deceased to the hospital in an injured condition was Noor Muhammad but the record of the case shows that the said person, though cited in the Calendar of Witnesses, had been given up by the prosecution as unnecessary. The legal inference to be drawn in that context is that if the said witness had entered the witness-box then he would not have supported the case of the prosecution. All this shows that either Muhammad Afzal deceased had economized with the truth while making his dying declaration or the dying declaration itself was a fabricated document which had been manufactured at some subsequent stage for the purposes of implication of the present appellant and to justify availability of the so-called eyewitnesses. In these peculiar circumstances we have decided not to place any reliance upon such a document. Criminal Appeals No. 235 and 236 of 2010 4 4. As already observed above, one of the eyewitnesses relied upon by the prosecution, i.e. Noor Muhammad had not been produced by the prosecution before the trial court and the ocular account was furnished in this case only by Ghulam Abbas (PW9). The said witness was a first cousin of Muhammad Afzal deceased and was admittedly a chance witness who ordinarily resided about one kilometer away from the place of occurrence. The stated reason for availability of this witness near the place of occurrence had never been established through any independent evidence at all. Apart from that the said witness had demonstrated an unusual conduct because according to him he had found the deceased in an injured condition, had shifted the deceased to the deceased’s house and had then gone to attend a marriage ceremony rather than taking the injured close relative to a hospital or informing the police about the incident. The said so-called eyewitness had not received any independent corroboration from the motive or from the alleged recovery of the weapon of offence inasmuch as no witness had been produced by the prosecution to prove the alleged motive and the memorandum of the alleged recovery of the weapon of offence had admittedly been signed by the recovery witnesses at the police station and not at the place of recovery whereat such memorandum had allegedly been prepared. 5. For what has been discussed above a conclusion is inescapable and irresistible that the prosecution had failed to prove its case against Riyat Khan appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded by the courts below are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case. Criminal Appeal No. 235 of 2010 6. As respondent No. 1 namely Riyat Khan has been acquitted by this Court today upon acceptance of his Criminal Appeal No. Criminal Appeals No. 235 and 236 of 2010 5 236 of 2010, therefore, the present appeal seeking enhancement of his sentence has lost its relevance. Dismissed. Judge Judge Judge Islamabad 26.04.2016 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MANZOOR AHMAD MALIK MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL MR. JUSTICE QAZI MUHAMMAD AMIN AHMED CRIMINAL APPEAL NO.239/2020 (On appeal from the judgment dated 11.12.2019 passed by the Islamabad High Court, Islamabad in Crl.No.A.255/2019) Mian Khalid Perviz … Appellant Versus The State through Special Prosecutor, ANF & another … Respondents For the Appellant : Raja RizwanAbbassi, ASC Syed RifaqatHussain Shah, AOR For the State : Mr. Inaam Amin Minhas, Spl. Prosecutor, ANF Ch. IhteshamulHaq, Spl. Prosecutor, ANF alongwithRaja Shoaib, Inspector, ANF Naseer, S.I., ANF Date of Hearing : 26.10.2020 JUDGMENT MAZHAR ALAM KHAN MIANKHEL, J-. The Appellant was booked and tried in case FIR No.72 dated 27th May, 2018 registered under Section 9(c) of the Control of Narcotic Substances Act, 1997 (CNSA) at Police Station, Anti- Narcotics Force (ANF)/RD, (North) Rawalpindi for an alleged recovery of 12 packets of charas (from specially built two secret cavities, six packets in each) weighing 12 kilograms. After a regular trial, Appellant was convicted under Section 9(c), CNSA, 1997 and sentenced to imprisonment for life with a fine of Rs.10,00,000/-, CRL.A.239/2020 -:2:- (One Million) in default whereof to further undergo simple imprisonment for one year vide judgment dated 10th July, 2019 passed by learned Judge, Special Court (Control of Narcotic Substances) Islamabad (Trial Court). Benefit of Section 382-B Cr.P.C. was also extended to him. His conviction and sentence was upheld by Division Bench of the Islamabad High Court, Islamabad by dismissing his Appeal vide judgment dated 11th December, 2019. Hence instant Appeal with Leave of this Court dated 17th April, 2020. 2. Learned counsel for the Appellant, learned Special Prosecutors, ANF were heard and record of the case was perused. Perusal of the record reveals that a huge quantity of ‘charas’ weighing 12-kilograms was recovered from the secret cavities, specially built, of Toyota Hilux, Vigo Registration No.BF145, Islamabad. FIR noted above was registered; recovery memo and sample parcels were made and then sent for chemical analysis. Appellant was arrested. After investigation of the case, Appellant was sent to the court of Special Judge (CNS), Islamabad to face the trial. Prosecution in support of its case produced five witnesses. Record of the case would further reflect that prosecution proved its case and established the recovery of narcotics, registration of case, safe custody of the recovered substance and onward transmission of sample parcels for chemical analysis and then a chemical analysis report from ‘National Institute of Health (Drugs Control and Traditional Medicines Division) (NIH), Islamabad’ confirming the recovered substance to be ‘charas’. The Trial Court, while considering the entire evidence, returned a verdict of guilty for CRL.A.239/2020 -:3:- Appellant, as noted above, and the same was maintained and upheld by the High Court in Appeal. 3. Leave to Appeal was granted on 17th April, 2020 by this Court for re-appraisal of entire evidence on the ground that only evidence of prosecution was considered by the courts below while recording conviction of the Appellant whereas defence evidence adduced by the Appellant was not considered /evaluated in its true perspective. 4. We, in the given circumstances, heard the learned counsel for the Appellant in detail. Learned counsel could not point out any single piece of misreading or non-reading of the material evidence produced by the prosecution. We may also observe that the Trial Court, while recording a conviction of the Appellant, has discussed the defence evidence in Paras-15 & 16 of its judgment dated 10th July, 2019 whereas the Appellate Court while concurring and maintaining the conviction so recorded by the Trial Court has not only considered the defence plea of the Appellant but has also discussed his statement on oath recorded under Section 340(2) of the Code of Criminal Procedure, 1898 (Cr.P.C.) and then the entire defence evidence. 5. Re-appraisal of entire evidence led by the prosecution reflects that prosecution was successful in proving its case beyond any reasonable doubt. The defence evidence led by the Appellant was also discussed and considered by the Trial Court and the Appellate Court had concurred on the point that defence had failed to rebut the evidence of prosecution. Since leave was granted only CRL.A.239/2020 -:4:- on the point that defence evidence led by the Appellant was not appraised properly, so we just for the safe administration of justice have also gone through the entire defence evidence. Besides general denials of the occurrence, Appellant in his statement under Section 340 (2) Cr.P.C. has also alleged his abduction on 26th May, 2018 by the ANF officials, false involvement on the basis of malice and his refusal to accept the demand of illegal gratification of Rs.05 million made by Inspector Shakeel. He also leveled allegations of dacoity/robbery of different articles including prize bonds from his house on 26th May, 2018 and thereafter he was allegedly taken/shifted to P.S. North, ANF along with his vehicle. He also produced ten witnesses in his defence including his brother. 6. Some of the documentary evidence in defence produced by the Appellant was recorded by automated information system which according to law is admissible under Article 164 of the Qanun-e- Shahadat Order, 1984 (P.O. No.X of 1984) but in case of denial, law requires that such evidence generated through the system ibid must be proved in accordance with law. The Courts have been empowered to receive and make use of such evidence collected through modern technologies. Articles 46-A and 78-A of the Order ibid as well as the provisions of Electronic Transactions Ordinance (LI of 2002) provide procedure to receive and prove such evidence. Reference in this regard can also be made to the case of Ishtiaq Ahmed Mirza v. Federation of Pakistan (PLD 2019 SC 675) and Ali Raza v. State(2019 SCMR 1982). CRL.A.239/2020 -:5:- 7. The defence evidence recorded by Najam Riaz (DW-1) and Nouman Khan Bangash (DW-2), pertains to calls data of Appellant’s mobile phones and that of the cell phones of Investigating Officer (I.O.) (Ex. DB to DE and DJ). A perusal of these documents would reveal that these were general in nature. Neither relevant entries were pointed out in the data nor the voice record transcripts were produced which, if available, could have made a point. There is nothing on the record in this regard to help out the Appellant in support of his allegations made in defence. Mere production of CDR DATA without transcripts of the calls or end to end audio recording cannot be considered/used as evidence worth reliance. Besides the call transcripts, it should also be established on the record that callers on both the ends were the same persons whose calls data is being used in evidence. While considering such type of evidence extra care is required to be taken by the Courts as advancement of science and technology, on the other hand, has also made it very convenient and easy to edit and make changes of one’s choice as highlighted and discussed in the case of Ishtiaq Ahmad Mirza supra. We also can lay hand on the case of Azeem Khan v. Mujahid Khan (2016 SCMR 274) in this regard. So, the CDR DATA produced by the said witnesses is of no help to the Appellant and cannot be termed as an evidence worth reliance to shatter the direct evidence adduced by the prosecution. 8. The other important piece of evidence so produced was tracking data of a vehicle from 25th to 27th May, 2018 (Ex.-DK/1- 14). Again these are the electronically generated documents of V- Tracking (Pvt) Ltd. Company brought on the record by the Zonal CRL.A.239/2020 -:6:- Manager of the company, Jabran Ahmad, DW-3. This data does not mention the details of vehicle in question or its owner. No doubt this data reflects different locations but apparently nothing could confirm that it is with regard to the same vehicle of the Appellant. During the course of arguments, learned counsel for the Appellant had pointed out certain entries in the bottom of Ex.DK/12 (page 121 of paper book) and few entries on the top of Ex.DK/13 (page 122 of paper book) which reflect that location of a vehicle till 11:11:01 pm, on 26th May, 2018 was “0.21 KM SE of ABL Gulzar-e- Quaid Branch Chaklala, Rawalpindi, Punjab, PK”. His contention was that it is the vehicle of Appellant BF-145 near P.S. ANF. But the record so relied does not confirm that the record under consideration is of the vehicle in question. DW-10 Mian Majid Perviz, brother of Appellant, produced documents pertaining to Takaful and installation of tracker in the vehicle BF-145, Islamabad owned by Appellant as Ex.DW.11/1-2. But there is nothing on the record which could show that Ex.DK/1-14 pertain to the vehicle shown in Ex.DW11/1-2. No doubt this is the important evidence if proved and established on the record, then it goes to the root of the case and sufficient for indentation and completely diminishing the prosecution evidence. The two types of documents noted above do not connect each other and apparently do not support the stance of the Appellant. Since Zonal Office of the said tracking company is in Islamabad and to clarify certain questions, officer of the company was asked to send any technical expert to clarify the record and answer some important questions cropped up during CRL.A.239/2020 -:7:- writing the judgment. The person appeared in response was the same person who had brought the record during trial, Jabran Ahmad, Zonal Manager, DW-3. He in reply to our query submitted that what is tracked by their system or what helps in tracking is the tracking device fitted in the vehicle. If the said device with the help of an expert or with collusion of the company’s employee, is removed from that vehicle and refitted in any other vehicle without intimation to the tracking company then in that case, the vehicle to be tracked by the system would be the vehicle in which the tracking device is refitted and the movement of original vehicle would not be traced. He further explained that normally it is very difficult even for the owner to trace the device fitted in the vehicle but possibility of removal and refitting cannot be ruled out. At this juncture, he further explained that whenever power supply to the device from the battery of the vehicle is disconnected or current supply line to the device is removed, the system of the company receives an alert through a fully automated process in this regard. He pointed out such alerts five in numbers appearing on Ex.DK/13 (page 122 of the paper book) which show zero, zero entries of latitude and longitude. When this being the position, possibility of intervention by the Appellant side cannot be ruled out. These readings show some sort of interference but the record is silent as to who was responsible for such interference. This situation creates a serious doubt on the stance of Appellant. The specific plea taken by the Appellant legally has to be proved by the Appellant without any loophole and ambiguity specially when there is no ill-will, mala fide or any other grudge on the part of the other party/prosecution. We, while scanning the entire record, are CRL.A.239/2020 -:8:- unable to understand as to why the Appellant was chosen for alleged abduction on 26th May, 2018 at daytime and then raid and alleged dacoity/robbery and demand of illegal gratification and that too in the month of Holy Ramadan. Besides the above, no separate report was lodged in the police station for these wrongdoings of the ANF. The other disturbing factor is that DW-10, Mian Majid Perviz, who is the brother of Appellant, claims to be present at the time of alleged abduction of the Appellant from the Shell Petrol Pump at 3:30 pm on 26th May, 2018 and he reported the matter at 15:40 on 27th May, 2018 (Ex.D-11/B). He also moved an application to the concerned SHO/Police Station, Aabpara, Islamabad (Ex.DW-11/A) on 7th June, 2018 to trace the location of mobile phones and the vehicle of the Appellant. This appears to be an attempt of maneuvering evidence in defence. It is hardly to believe that till 7th June, 2018 he or the family of Appellant was unaware of the recovery of narcotics. Details of Takaful of the vehicle and installation of tracking device by the tracking company ibid were also produced by DW-10 (Ex-DW-11/1-2). Investigating Officer of the case Raja Shoaib, Inspector, PS-ANF, during personal search of the Appellant had also recovered ‘Inter-Services Intelligence (ISI)’ Card (P/6) and a stamp in the name of Appellant ‘AD Ministry of Defence, Rawalpindi’ (P/15). The Appellant during the investigation disclosed that these were fake and on such disclosure other Sections of Penal Code were also inserted in the FIR. The other witnesses with oral evidence produced in defence have no evidentiary value in presence of prosecution evidence. Appellant in his statement under Section 340(2) Cr.P.C. alleged that at the time of his abduction his son and driver were also with CRL.A.239/2020 -:9:- him who were let off by the ANF staff but both were not produced in defence rather DW-10 who was not named by Appellant was produced. With all the above short comings in defence evidence it becomes very difficult to believe such evidence. DW-3, Zonal Manager of the tracking company during his statement had also produced map of movement history of the vehicle comprising three sheets Ex.DL 01-03 but the map available on the paper book consist of (five sheets) (from page 124 to 128) without exhibit mark. We are unable to rely or consider such documents which are not part of the record. Original record of the case was perused. The map produced during trial (Ex.DW 01-03) is different from these documents. The exhibited map also is of no help to the Appellant as the same have the similar shortcomings as discussed above. So, we are of the considered view that the defence evidence so led by the Appellant is not of such credence and trustworthy that it could shatter the confidence inspiring evidence of prosecution. Resultantly, this appeal, having no merit, is dismissed. These are the reasons for our short order of even date which is re-produced herein below:- “For reasons to be recorded later, the instant criminal appeal is dismissed.” Judge Judge Judge Islamabad, 26th October,2020 Sarfraz/- ‘Approved for reporting’

In the Supreme Court of Pakistan (Appellate Jurisdiction) Present: Mr. Justice Anwar Zaheer Jamali, HCJ Mr. Justice Mushir Alam Mr. Justice Umar Ata Bandial Criminal Appeals No.24 & 25 of 2010. (On appeal from judgment of Lahore High Court, Lahore dated 26.5.2009, passed in Crl.A No.123-J/2006 and MR No.4-T/2006) Javed Iqbal, etc (in Crl.A-24/2010) Khizar Hayat, etc (in Crl.A-25/2010) …Appellants Versus The State (in both cases) … Respondents For the appellants: Dr. Khalid Ranjha, Sr. ASC (in Crl.A-24/10) Mir Muhammad Ghurran Khurshid Imtiazi, ASC (in Crl.A-25/2010) For the State: Mr. Asjid Javed Goral, Addl.P.G Punjab. Date of hearing: 02.10.2015 JUDGMENT Anwar Zaheer Jamali, C.J. – In the above captioned two criminal appeals, leave was granted by the Court vide its order dated 12.1.2010, which reads as under:- “As many as 27 persons were charged and tried by the Judge Anti Terrorism Court, Faisalabad, on 6.2.2006, for various offences, including those under Sections 302(b), 324, 295-A, 295-B and 295-C PPC. For the offence under Section 295-C, only the accused, Shahbaz Ahmed, was convicted and sentenced to death and the remaining were awarded imprisonment for life. They all were convicted and sentenced to imprisonment for life of each of the offences under Sections 302(b), 295-B PPC. They were further convicted and sentenced for various other offences, namely, under Sections 295-A, Crl.A No.24& 25/2010 2 148, 186, 353 PPC as well as under Sections 7(a) and 9 of the Anti Terrorism Act, 1997. One of the co-accused was a juvenile and was tried separately. On appeal, the Lahore High Court set aside the conviction and sentences of all the accused under Section 295-C PPC whereas it upheld their conviction and sentences for the remaining offences. 2. Javed Iqbal and Tahir Mehmood, have filed Criminal Petition No.692 of 2009 and the remaining convicts have filed Jail Petition No.842 of 2009, out of them Petitioners No.6, 11, 12, 13, 15, 16, 17, 21 and 22 were represented by a private counsel. The remaining petitioners were not preresented. 3. The case against the petitioners was that they had proclaimed one of them, Shahbaz Ahmed, as “Imam Mehdi” and had invited the people to follow him and warned that if he was resisted, the country as a whole and the City of Faisalabad in particular would face destruction. To further project their view point, the petitioners along with others started a procession in motorcars and proceeded towards the Motorway. It is alleged that the participants of the procession were duly armed. That the police was informed about this incident, who proceeded to stop the procession. According to the police, some of the persons in the procession started firing at the police personnel stationed at the Motorway Interchange of Faisalabad. That when the police party headed by a Deputy Superintendent of Police, reached the spot, the processionist resorted to firing upon them, injuring four of their compansions, namely, Navid alias Nazir Tahir Ahad, Babar Shjafi and Abid. Babar Shafi, later on passed away. The petitioners were thereafter arrested, tried and convicted as stated above. 4. We have heard Dr. Khalid Ranjha, Sr.ASC in Criminal Petition No.692 of 2009 and Mr. Inayatullah Cheema, ASC in Jail Petition No.842of 2009. After hearing arguments of the learned counsel, we grant leave to ap0peal to re-examine the evidence in the light of contentions raised, particularly whether: (i) It was not from the firing of the police party that the petitioners’ companions were injured, who received firearms Crl.A No.24& 25/2010 3 injuries on the front of their bodies, and when none from the police party was injured in the incident. (ii) All the accused, 27 in numbers, could be convicted for the above stated offences as there was nothing on record that they shared common intention for the commission of each of such offences and (iii) Was it possible for the police party to identify each of the 27 petitioners for the commission of the crime alleged to have been committed by them.” 2. Briefly stated, facts leading to these criminal proceedings are that on 15.12.2005, FIR No.1081/2005, under sections 7, Anti- terrorism Act, 1997, 16, Maintenance of Public Order Ordinance, 1960, 427, 324, 353, 295-B, 295-C, 149, 186, 146, 148, Pakistan Penal Code and 13, of the Pakistan Arms Ordinance, 1965, was registered by complainant Malik Rasheed Ahmed, DSP City at P.S Nishatabad, District Faisalabad with the following assertions:- That on 15.12.2005 at about 12:00 noon, DSP/SDPO City, Faisalabad received a wireless message that 25/30 persons, duly armed with firearm weapons and making aerial firing, were coming towards Sargodha Road from Nishatabad bridge. They were holding flags and banners and were making announcement of emergence of Imam Mehdi on mega phone. On receipt of complaint, he along with three other Police officials approached them at Bolay-de-Juggi, near Telephone Exchange, where he asked them to stop firing, whereupon they raised slogans that Imam Mehdi has emerged, who is accompanying them, and all nation should embrace him till 4:00 pm., otherwise they will Crl.A No.24& 25/2010 4 destroy the whole Country. They started firing at the Police party, who escaped by taking shelter behind their official vehicle. Thereafter they started proceeding ahead and kept on making aerial firing. The incident was reported to the City Control, and more Police contingents were called to control the situation. One Muhammad Younas son of Noor Muhammad sustained firearm injury at the hands of these persons near Haji Camp, which caused panic and fear in the locality. The accused persons made indiscriminate firing at Motorway Toll Plaza, Kamalpur, due to which all the officials ran away from there and accused persons entered Motorway and after covering a distance of about two furlongs, when they saw the Police party approaching them, they deboarded from their vehicles and in a confusion started firing at Police party, as a result whereof 3/4 co-accused persons received injuries. A passenger bus was also made hostage by them. At this spot they entered into negotiation with the Police, during which accused Shahbaz Ahmed, the self proclaimed Imam Mehdi, made derogatory remarks against the Holy Prophet Hazrat Muhammad (PBUH), and demanded that injured co-accused may be shifted to hospital. After the negotiations, following a strategy, all the accused persons were apprehended and crime weapons, as detailed in the recovery memo, were recovered from them. Moreover, crime empties were also recovered from different places on their route. The case was accordingly registered against them. Crl.A No.24& 25/2010 5 3. After investigation of the crime, 27 accused named in the FIR were set up for trial before the Special Judge ATC, Faisalabad, where they were accordingly charged for the said offences, to which all of them pleaded not guilty and claimed trial. The trial of the appellants was, therefore held, during which eighteen prosecution witnesses were examined and documents Ex-PD to Ex-PXX were produced by the prosecution, which amongst others contained mushirnamas of recovery of eight 8mm rifles, one 0.12 bore pistol, eight 0.30 bore pistols and one chhuri, being alleged crime weapons. After the completion of prosecution evidence, section 342, Cr.P.C, statements of all the accused were recorded before the trial Court. However, none of them offered to examine himself under section 340(2), Cr.P.C, nor any one of them except Shahbaz asked to lead evidence in defence before the trial Court. At the conclusion of trial, arguments were heard and vide judgment dated 06.2.2006, appellant Shahbaz Ahmed, upon his conviction, was awarded following sentences:- i) U/S 148/149 PPC and sentenced to 3 years R.I. ii) U/S 295-A PPC and sentenced to 10 years R.I. iii) U/S 295-B PPC and sentenced to imprisonment for life. iv) U/S 295-C PPC and sentenced to death subject to confirmation by the Hon’ble Lahore High Court, Lahore and a fine of Rs.5,00,000/-, in default thereof to undergo for 5 years S.I. v) U/S 302(b)/149 PPC and sentenced to imprisonment for life as “Taa’zir”. He shall also pay the compensation of Rs.5,00,000/- to the legal heirs of the deceased, in default thereof to undergo for 6 months S.I. Crl.A No.24& 25/2010 6 vi) U/S 324/149 PPC and sentenced to 10 years R.I. with a fine of Rs.1,00,000/- in default thereof to undergo for 2 years S.I. U/s 337-L(2) PC and sentenced to 2 years R.I. on four counts. vii) U/S 186 PPC and sentenced to 3 months R.I. viii) U/S 353 PPC and sentenced to 2 years R.I. ix) U/S 7 clause (a) of ATA-1997 and sentenced to imprisonment for life and a fine of Rs.5,00,000/- in default thereof to undergo for 5 years S.I. x) U/S 9 of ATA of 1997 and sentenced to 5 years R.I. and a fine of Rs.1,00,000/-, in default thereof to undergo one year S.I. Twenty-three other accused (1) Khizar Hayat son of Sikandar Ali, (2) Taj Din son of Hashmat Ullah, (3) Javaid Iqbal son of Abdul Waheed, (4) Tahir Mahmood son of Abdul Waheed, (5) Taj Ansari son of Hafiz Noor- ul-Hassan, (6) Zafar Iqbal son of Habib Ullah (7) Ijaz Ahmad son of Ahmad Din, (8) Muhammad Ilyas son of Muhammad Ibrahim, (9) Talib Hussain son of Farzand Ali, (10) Muhammad Yasin son of Abdul Majeed, (11) Imran son of Abdul Hameed, (12) Abdul Rehman son of Qasim Ali, (13) Muhammad Ismail son of Khushi Muhammad, (14) Muhammad Iqbal son of Bashir Ahmad, (15) Ateeq-ur-Rehman son of Ali Muhammad, (16) Ishaq Ahmad son of Muhammad Nawaz, (17) Mukhtar Ahmad son of Muhammad Riaz, (18) Naveed Ali Shah son of Haqdar Shah, (19) Muhammad Sajid Ali son of Jamshaid Ali (20) Shoukat Ali son of Fazal Din (21) Mahmood-ul-Hassan son of Shoukat Ali (22) Muhammad Iqbal son of Muhammad Anwar and (23) Shahbaz Ahmed alias Bholoo son of Ishtiaq Ahmad, were convicted and awarded following sentences:- i) U/S 148/149 PPC and sentenced to 3 years R.I. each. Crl.A No.24& 25/2010 7 ii) U/S 295-A PPC and sentenced to 10 years R.I each. iii) U/S 295-B PPC and sentenced to imprisonment for life each. iv) U/S 295-C PPC and sentenced to imprisonment for life each and a fine of Rs.5,00,000/- each, in default thereof to undergo for 5 years S.I each. v) U/s 302(b)/149 PC and sentenced to imprisonment for life each as “Taa’zir”. They shall also pay the compensation of Rs.5,00,000/- each to the legal heirs of the deceased, in default thereof to undergo for 6 months S.I. each. vi) U/S 324/149 PPC and sentenced to 10 years R.I each with a fine of Rs.100,000/- each, in default thereof to undergo for 2 years S.I. each. U/S 337-L(2) PPC and sentenced to 2 years R.I each on four counts. vii) U/S 186 PPC and sentenced to 3 months R.I each. viii) U/S 353 PPC and sentenced to 2 years R.I. each. ix) U/s 7 clause (a) of ATA-1997 and sentenced to imprisonment for life each and a fine of Rs.5,00,000/- each, in default thereof to undergo for 5 years S.I. each. x) U/S 9 of the ATA of 1997 and sentenced to 5 years R.I each and fine of Rs.1,00,000/- each, in default thereof to undergo one year S.I each. All sentences shall run concurrently and Benefit of section 382-B, Cr.P.C is given to the convicts. While the remaining three accused (1) Muhammad Abid Hussain son of Ali Muhammad (2) Naveed Ahmed son of Shah Muhammad and (3) Tahir Ahmad son of Munir Ahmad, were convicted and sentenced as under:- i) U/S 148/149 PPC and sentenced to 3 years R.I. each. ii) U/S 295-A PPC and sentenced to 10 years R.I each. iii) U/S 295-B PPC and sentenced to imprisonment for life each. iv) U/S 295-C PPC and sentenced to imprisonment for life each and a fine of Rs.5,00,000/- each, in default thereof to undergo for 5 years S.I each. Crl.A No.24& 25/2010 8 v) U/S 302(b)/149 PC and sentenced to imprisonment for life each as “Taa’zir”. They shall also pay the compensation of Rs.5,00,000/- each to the legal heirs of the deceased, in default thereof to undergo for 6 months S.I. each. vi) U/S 324/149 PPC and sentenced to 10 years R.I each with a fine of Rs.100,000/- each, in default thereof to undergo for 2 years S.I. each. U/S 337-L(2) PPC and sentenced to 2 years R.I each on three counts. vii) U/S 186 PPC and sentenced to 3 months R.I each. viii) U/S 353 PPC and sentenced to 2 years R.I. each. ix) U/s 7 clause (a) of ATA-1997 and sentenced to imprisonment for life each and a fine of Rs.5,00,000/- each, in default thereof to undergo for 5 years S.I. each. x) U/S 9 of the ATA of 1997 and sentenced to 5 years R.I each and fine of Rs.1,00,000/- each, in default thereof to undergo one year S.I each. All sentences shall run concurrently and Benefit of section 382-B, Cr.P.C is given to the convicts. 4. Against the judgment of the trial Court (ATC), remedy of appeal was availed by the appellants before the Lahore High Court, Lahore through appeals/jail appeals No.123-J, 124-J, 259 and 260 of 2006. These appeals were heard together with Murder Reference No.4- T of 2006, and by consolidated judgment dated 06.5.2009, the same were disposed of in the manner that criminal appeal No.123-J/2006 was partly allowed in favour of the appellants to the extent that their conviction under section 295-C, PPC was set aside, murder reference was not confirmed, and they were acquitted of the said charge with further observation that the sentences awarded to them shall run concurrently and benefit of section 382-B, Cr.P.C shall also be given to them. It is against this judgment of the Division Bench of the Lahore Crl.A No.24& 25/2010 9 High Court that criminal petition and jail petitions were filed, wherein leave was granted in terms of the order reproduced above. 5. Dr. Khalid Ranjha, learned Sr. ASC for some of the appellants in these appeals read the contents of the FIR in verbatim to portray the actual incident forming basis for the registration of FIR No.1081/2005 against the appellants. Thereafter he read the evidence of all material witnesses examined on behalf of the prosecution, particularly the eye-witnesses of the occurrence to show that the whole investigation was conducted with a pre-determined mind and misdirected, inasmuch as on the basis of bare allegations of aerial firing, a peaceful mob was encircled by the Police and fired upon, which action culminated in the incident of murder of one Baba Shafi by some unknown person, may be Police, and injuries to 3/4 appellants. The gist of his submissions was that the whole story is concocted in order to hush-up the highhandedness of the police in badly tackling the situation, due to which a small issue was blown out of proportion, particularly against the appellants, excluding appellant Shahbaz Ahmed son of Shah Muhammad, who had, according to the prosecution, declared himself Imam Mehdi and spoken some derogatory remarks about Holy Prophet Hazrat Muhammad (PBUH). He also emphasized that in the given facts and circumstances of the case, it was quite easy for the police/investigation agency to involve as many persons in the crime as they liked, but this important legal aspect of the case was not at all taken into consideration by both the Courts below, which resulted Crl.A No.24& 25/2010 10 in gross miscarriage of justice to the appellants. Making reference to section 342, Cr.P.C statements, he conceded that convict, Shahbaz Ahmed in his section 342, Cr.P.C statement has admitted the case of prosecution in toto to the extent of his own conduct and involvement in this strange incident, but at the same time learned ASC raised objection about the mental state of this appellant, as it was not possible for a man of normal prudence to have taken such stance of being self- proclaimed Imam Mehdi. In the end, learned ASC made reference of some cases in support of his submissions, regarding the principle that benefit of any doubt in the prosecution case was to be extended to the accused. In our opinion, this proposition of law is so well recognized that it needs no further elucidation. 6. Another legal aspect of the case argued before us by the learned Sr. ASC was regarding non-compliance of the mandatory requirement of section 196, Cr.P.C, about seeking sanction/permission for trial of an accused charged under sections 295-A, PPC, which was lacking in the present case. In this context, he relied upon the case of Nawaz Sharif v. The State (2000 MLD 946). Indeed, section 196 of Cr.P.C bars the Court from taking cognizance of an offence under section 295-A of PPC, without requisite sanction/approval/permission and failure to obtain such mandatory permission renders the proceedings to that extent a nullity in law. However, we are not impressed by this submission of the learned Sr. ASC, as bar of taking cognizance provided under section 196, Cr.P.C will not apply to the Crl.A No.24& 25/2010 11 proceedings before the Anti Terrorism Courts in view of the combined effect of Sections 12, 19, 30 and the overriding effect of section 32 of the ATA, being proceedings under a special statute, which provides exclusion of those provisions of Cr.P.C and other laws which are inconsistent with the provisions of ATA. In this context, a glance at these provisions of the ATA goes to show that section 12, which starts with non- obstante clause, deals with the jurisdiction of Anti-terrorism Courts; section 19 provides for a detailed procedure under sub-sections (1) to (14), regarding the procedure and powers of Anti-terrorism Court; section 30, which also starts with non-obstante clause, provides for modified application of certain provisions of the Code (Criminal Procedure Code), during the proceedings before the Anti-terrorism Court, and lastly section 32 gives overriding effect to the provisions of ATA, and provides that notwithstanding anything contained in the Code or any other law but, save as expressly provided in this Act, the provisions of the Code shall, in so far as they are not inconsistent with the provisions of this Act, apply to the proceedings before an Anti-terrorism Court, which shall be deemed to be a Court of Session. The case of Nawaz Sharif (supra) relied by the learned Sr. ASC in support of his submission about the applicability of section 196, Cr.P.C to the proceedings before the Anti Terrorism Courts, also negates his arguments. For ease of reference, relevant conclusion in this judgment is reproduced as under:- “Thus, there being inconsistency and the difference between the provisions of section 30 of the Act and section 196 of the Code, the provisions contained in the latter will not be applicable to the proceeding before the Special Court. Therefore, in view of the inconsistency, as discussed above, section 32 of the Act would come Crl.A No.24& 25/2010 12 into play and the bar contained in section 196, Cr.P.C would not in any way affect to the taking of cognizance by this Court in exercising power under section 19 of the Act. Consequently, the application is dismissed.” 7. The other learned ASCs appearing on behalf of the appellants in these connected appeals adopted the arguments of learned ASC Dr. Khalid Ranjha with the addition that the few legal heirs of deceased Baba Shafi had pardoned some of the appellants, but unfortunately no final orders could be passed by the Court on such compromise application under section 345, Cr.P.C, as some other legal heirs of the deceased were out of the Country, as evident from the contents of CMA No.325/2015 and orders passed thereon. 8. On behalf of the State, Mr. Asjad Javed Ghoral, learned Additional Prosecutor General, Punjab, strongly supported the impugned judgment passed by learned Division Bench of the Lahore High Court and contended that whatever relief the appellants were entitled to, has already been allowed to them through the impugned judgment, therefore, they are not entitled to any further relief. 9. Before the hearing of these appeals, we have called for the jail rolls of the 26 appellants, which reveal that appellant Muhammad Iqbal son of Bashir Ahmed has died during the pendency of these appeals, therefore, the appeal to his extent, became infructuous. As regards the remaining appellants, Khizar Hayat, Taj Din, Javed Iqbal, Tahir Mehmood, Taj Ansari, Zafar Iqbal, Ejaz Ahmed, Muhammad Ilyas, Talib Hussain, Muhammad Yasin, Imran, Abdul Rehman, Muhammad Crl.A No.24& 25/2010 13 Ismail, Attiq-ur-Rehman, Ishaq, Mukhtar, Naveed Ali, Muhammad Sajid, Shaukat Ali, Mehmood-ul-Hassan, Muhammad Iqbal, Shahbaz Ahmed, Muhammad Abid, Naveed Ahmed and Shahbaz Ahmed, by now they have all served their substantive sentences for over 9-years and 9- months, but having been also convicted under sections 7(a) and 9 of Anti-Terrorism Act, 1997 (ATA), they have not been granted any remissions in view of the bar provided by section 21F of the said Act of 1997, vis-à-vis the ratio of judgments in the case of Shah Hussain v. The State (PLD 2009 SC 460) and Nazar Hussain and another v. The State (PLD 2010 SC 1021). The learned Additional Prosecutor General further made reference to the depositions of prosecution witnesses to show that the question of indiscriminate firing from the side of appellants was answered by the trial Court and the appellate Court on the basis of undeniable testimony of the eye-witnesses of occurrence, thus, their conviction and sentences are fully justified. The learned Additional Prosecutor General, however, when confronted with the deposition of PW-8 Ch. Mushtaq Ahmed, DSP, did not dispute that he had directed the Police to respond to the firing of the appellants and they did; not only this but the injured witness Muhammad Younas (PW-10) also deposed that Police was making firing at accused persons. He also did not dispute that no one from the general public, except Muhammad Younas, received bullet injury, which could not be attributed to any particular appellant. Moreover, no Police personnel received any bullet injury as against three of the appellants, who admittedly suffered bullet Crl.A No.24& 25/2010 14 injuries; which lend credence to the case of the appellants that it was due to the Police firing at the appellants that some of them received firearm injuries, and fatal injury was caused to one Baba Shafi, who was also from amongst them, as evident from the deposition of Dr. Muhammad Naeem (PW-16), who stated that the deceased had on his body one light blue colour belt with written name of “BABA SHAFI” in Urdu and one badge with printed words in Urdu “DIN-E-YOUNAS”. Besides, the learned Additional Prosecutor General conceded that all crime empties recovered from the place of occurrence, which were 205 (70+75+60) in number, were attributed to the appellants. But strangely recovery of no crime empty from the bullets fired by the Police was shown by the IO, though he promptly carried out the process of investigation of the crime. 10. In the light of above submission made by the learned ASCs and the learned Additional Prosecutor General, Punjab, we have carefully examined the case record of sessions case No.01/ATC/2006 in the form of paper book in Criminal Appeal No.124-J/2006, and other connected appeals. We have also examined the case record of these appeals, which reveals that through Crl.M.A No.325/2015, some of the legal heirs of Baba Shafi, the only deceased of this incident, have pardoned two of the accused i.e. Javed Iqbal and Tahir Mehmood. However, such attempt of compromise did not materialize due to the absence of other legal heirs of the deceased, who are statedly abroad. Crl.A No.24& 25/2010 15 11. Reverting to other material aspects of the case, we find that the prosecution has examined 18 witnesses, out of whom PW-7 Malik Rashid Ahmed, DSP, PW-8 Ch. Mushtaq Ahmed, DSP, PW-10 Muhammad Younas (injured), PW-12 Malik Khalid Mahmood, Inspector and PW-13 Muhammad Abid Aziz, Inspector, were eye-witnesses of the occurrence. However, none of these witnesses attributed direct role of firing at deceased Baba Shafi to any particular appellant. Moreover, the prosecution did not produce/examine any official from the motorway police as well as the driver or any passenger of the bus which was allegedly taken hostage by the appellants. Similarly, in their statements under section 342, Cr.P.C, none of the appellants owned or accepted the liability of causing fatal injury to deceased Baba Shafi or injuries to four others, out of whom three are the appellants before us. Rather they all, including three injured appellants Abid, Naveed, and Tahir, attributed this role specifically to police firing. Admittedly, the incident dated 15.12.2005 occurred in broad daylight at 12:00 noon, when a larger contingent of Police was called and after the whole occurrence, as detailed in the FIR, matter was tactfully settled, number of appellants were arrested at the spot and purported recovery of crime weapons was made from them. These facts simply prove that a serious law and order situation was created by the appellants under the leadership of self-proclaimed Imam Mehdi i.e. the appellant Shahbaz Ahmed. During this incident, as evident from the statement of PW-8 DSP Ch. Mushtaq Ahmed and PW-10 Muhammad Younas, injured, the Crl.A No.24& 25/2010 16 Police also resorted to firing to disburse this mob, which in one way or the other resulted in panic and a fight free for all, causing damage to certain private properties and vehicles. In our opinion, in this background, the prosecution evidence, lacking examination of any independent witness from the locality and many other material witnesses; containing vague/general allegations with material contradictions about the whole incident, particularly about suppression of fact of Police firing etc, was not sufficient either to fix the responsibility of murder of Baba Shafi, injuries to some of the appellants and another person on the appellants or showing any of the ingredients of sections 6 and 8 of the ATA, except against appellant Shahbaz Ahmad, so as to justify their conviction under section 7(a) and 9 of the ATA. Moreover, considering the plea of the appellants, except appellant Shahbaz Ahmed, that cross firing took place between Police personnel and accused persons, which is proved from the record, the possibility that death of Baba Shafi and injuries to the appellants might have been the result of Police firing also cannot be ruled out. It also seems rather strange and affects the credibility of whole investigation that despite exchange of firing, no crime empties of police firing were recovered from the place of occurrence and all the crime empties recovered from the place of occurrence matched with the weapon allegedly recovered/attributed to the appellants. This aspect of the case coupled with the fact that parcels of crime empties and weapons were sent to the Forensic Science Laboratory together on 26.12.2005, after Crl.A No.24& 25/2010 17 an unexplained delay of 11 days, cast further doubt about the case of the prosecution. 12. To move further, when we look at the case of the appellants as per their own assertions, except appellant Shahbaz Ahmed, we find that they all had totally denied any highhandedness on their part during the occurrence and unanimously taken the plea that they had taken out a peaceful procession against one Riaz Gohar Shahi, whom they considered “Dajjal” and appellant Shahbaz Ahmed rescued them from the clutches and obnoxious belief of that “Dajjal”. Therefore, to celebrate this occasion, such procession was taken out under the command of Shahbaz Ahmed, who solely claimed himself as Imam Mehdi, being under some spiritual power. 13. From the evidence brought on record by the prosecution, which is, as mentioned earlier, bald, vague and in general terms, the commission of offence under sections 295-A and 295-B, PPC by the appellants, other than appellant Shahbaz Ahmad, is not proved upto the mark, but all of them in their section 342, Cr.P.C statements, in reply to questions number 2, 3 and 4 have admitted their guilt in unequivocal terms. Hence on this count, their conviction under these provisions of PPC is to be maintained/sustained. 14. In the light of aforementioned, it is clear that case of appellant Shahbaz Ahmed son of Shah Muhammad is distinguishable from other appellants, therefore, by extending them benefit of doubt, their appeals are partly allowed to the extent that conviction of all the Crl.A No.24& 25/2010 18 appellants, except appellant Shahbaz Ahmed, under sections 302(b), 324, 337L(2), PPC and sections 7(a) and 9 of the ATA is set aside, while their convictions under other provisions of law awarded by the trial Court, as modified by the appellate Court, are upheld. As a result they will be entitled for the benefit of all the remissions and benefit of section 382-B, Cr.P.C from the date of their arrest. The jail authorities be informed accordingly. 15. Insofar as appellant Shahbaz Ahmed son of Shah Muhammad is concerned, his appeal is also partly allowed to the extent that his conviction under section 302(b) and 324, PPC is set aside, while sentences under other provisions of law awarded to him by the trial Court, as modified by the appellate Court, are upheld. Announced. Islamabad, 22nd February 2016. Chief Justice Not approved for reporting. تﻗادﺻ Chief Justice Judge Judge

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR, JUSTICE MUNIB AKHTAR MR. JUSTICE SAYVED MAZAHAR ALl AKBAR NAUVI CRIMINAL APPEAL NO. 250 OF 2020 (Against the judgment dated 31.03.2014 of the Lahore High Court, Lahore passed in Criminal Appeal No.217-J/2010 and Murder Reference No.329/2010) Abdul Ghafoor ...Appellant(s) VERSUS The State Respondent(s) For the Appellant(s): Nemo For the State: Mr. Ahmed Raza Gillani, AddI.P.G. Date of Hearing: 30.05.2022 JUDGMENT SAYVED MAZAHAR All AKBAR NAQVI, J.- Appellant along with three co- accused was tried by the learned Additional Sessions Judge, Jhang, pursuant to a case registered vide FIR No. 110 dated 12.02.2007 under Sections 302/337-F(ii)/34 PPC for committing murder f Riasat Ali, son of the complainant. The learned Trial Court vide its judgment dated 23.04.2010 while acquitting three co-accused, convicted the appellant under Section 302(b) PPC and sentenced him to death. He was also directed to pay compensation amounting to Rs. 50,000/- to the legal heirs of the deceased or in default whereof to further undergo SI for six months. He was also convicted under Section 337-F(ii) PPC for causing injury to Kalay Khan and was directed to pay Daman amounting to Rs.10,000/- to the injured. In appeal, the learned High Court while maintaining the conviction under Section 302(b) PPC, altered the sentence of death into imprisonment for life. The amount of compensation and the sentence in CRIMINAL APPEAL NO2500F2020 -: 2 default whereof was maintained. Conviction and sentence under Section 337-F(ii) PPC was also maintained Benefit of Section 382-B Cr.P.C. was extended to him Being aggrieved by the impugned judgment, the appellant filed Jail Petition No. 123/2016 before this Court wherein leave was granted on 23.04.2020 and the present Criminal Appeal has arisen thereafter. 2. The prosecution story as given in the impugned judgment reads as under:- "2. Brief facts of the case as narrated in the FIR recorded on the statement of Sarang complainant (PW-09) are that on 01.02.2007 at about 04.30 pm, he along with his son Riasat All (deceased) and Kalay Khan injured (PW-10) was present. Abdul Ghafoor appellant came outside his house and peeped into the house of iabbar from over the wall upon which Riasat Au (deceased) admonished him. Abdul Ghafoor went into his house while giving threats to him. After about ten minutes, Abdul Ghafoor appellant and Zakir both armed with dagger, Asif empty handed, Nazar armed with sota, came there. Asif and Nazar raised lalkara to murder Riasat Ali on which Abdul Ghafoor appellant inflicted dagger blow which hit Riasat Ali on his head behind the right ear. Zakir accused inflict second blow with his dagger which hit Riasat All on his left shoulder. Kalay Khan (PW-10) tried to rescue Riasat Ali (deceased), upon which, Abdul Ghafoor inflicted dagger blow to him which landed on his abdomen. On hearing hue and cry, Zulfiqar and Mushtaq attracted towards the scene of occurrence, on which the accused fled away. Riasat Ali (deceased) was shifted to the Allied Hospital Faisalabad where he succumbed to the injuries on 12.02.2007. The motive behind the occurrence was that one month ago Abdul Chafoor appellant had abducted Mst. Mumtaz Bibi, niece of the complainant, but her custody was restored on the intervention of the respectables and the appellant peeped into the house to see Mst. Mumtaz Bibi. 3. After completion of investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. In order to prove its case the prosecution produced as many as 12 witnesses. In his statement recorded under Section 342 Cr.P.C, the appellant pleaded his innocence and refuted all the allegations leveled against him. However, he did not make his FT CRIMINAL APPEAL NO.250 OF 2020 -: 3 statement on oath under Section 340(2) Cr.P.0 in disproof of allegations leveled against him. He also did not produce any evidence in his defence. 4. Vide order dated 23.04.2020, Mr. Anees Muhammad Shahzad, learned ASC was appointed by this Court to represent the appellant at State expense. However, despite repeated calls, the learned counsel did not turn up today to argue this case. However, in the interest of justice, we decided to proceed with the case on merits. s. with the able assistance of learned Law Officer, the record of the case was perused in detail and it was pointed out that there are serious lapses on the part of the prosecution. The learned Law Officer though defended the impugned judgment but the same was done half- heartedly because of evidence available on the record, which was hard to rebut. However, he stressed upon that the prosecution has succeeded to establish the case against the appellant. He contended that the evidence led by the prosecution in the shape of ocular version duly supported by medical evidence is sufficient to sustain conviction in the given circumstances, therefore, he does not deserve any leniency by this Court. 6. We have heard learned Law Officer at considerable length and have perused the evidence available on record. In the instant case, there is no denial to this fact that the FIR was registered after an inordinate delay of 11 days whereas Medico Legal Examination Certificate (Ex.PD) indicates that the injured PWs (one died later on) were medically examined in injured condition on the same day with reference to Rapat No. 16 dated 01.02.2007 lodged in Police Station Saddar ihang through Constable Muhammad Daraz. However, the learned High Court while handing down the judgment, in paragraph 8 of the impugned judgment, has tried to establish that the delay in lodging the FIR is not fatal but unfortunately no valid reason has been assigned at all, which can be considered as justiciable reasoning within the parameters of the law. It would be advantageous to reproduce the said paragraph 8, which reads as under:- CRIMINAL APPEAL NO.250 OF 2020 -: 4 "8. So far delay in lodging the FIR is concerned, it is mentioned by the complainant that immediately after the occurrence they took Riasat Ali in injured condition to the hospital and thereafter to Allied Hospital Faisalabad for treatment where they remained busy in taking care of Riasat Ali but when he died on 12.02.2007, the complainant brought the dead body to the police station and lodged the FIR. The record reveals that Kalay Khan (PW-10) and Riasat All (deceased) were medically examined on the day of occurrence at 06:15 pm in DHQ Hospital Jhang. The doctor categorically stated that Riasat Ali was drowsy and disoriented, which indicates his serious condition. In the MLC of Kalay Khan and Riasat All, it is specifically mentioned that the said medical examination was conducted on the request of the police through rapt No. 16. Injury statements Ex.PE and Ex.PB clearly indicate that firstly, rapt No. 16 was incorporated in the Roznamcha of police station, on the day of occurrence and thereafter injury statement of Riasat Au and Kalay Khan were prepared. In the injury statements, it is specifically mentioned that Abdul Ghafoor etc and Zakir etc (three in number) caused injuries to Riasat AU (deceased) and Kalay Khan (PW-10), So, one thing is quite clear that on the day of occurrence firstly the complainant party went to the police station and lodged rapt No. 16, in which, the name of the appellant and Zakir was specifically given as assailants, by the deceased, injured witness and the complainant. The stance of the complainant was that he was stopped by the respectable of the Illaqa for lodging the FIR is also supported from the fact that only rapt was lodged for medical examination and at that time no FIR was chalked out. It is also a circumstance that both the parties are known to each other and there could be no mistaken identity. In that eventuality the delay of eleven days in lodging the Fir is not fatal to the prosecution case because the same was properly explained by the complainant while lodging the FIR whereas the name of the appellant is specifically mentioned in the injury statement Ex.PB as assailant" We have noted that the said Rapat has not been exhibited in evidence and it is not clear from the evidence as to whether the appellant was nominated therein for the stated crime. This Court has repeatedly considered the delay in lodging the FIR a serious lapse unless and until it is plausibly explained. Delay per se is a valid ground to gauge the veracity of the prosecution witnesses. In the case of Mehmood Ahmad Vs. The State (1995 SCMR 127), there was a delay of two hours in lodging the FIR. This Court while holding that the delay of two hours in lodging the FIR has assumed great significance as the same can be attributed to consultation, - - CRIMINAL APPEAL NO.250 OF 2020 -: 5 taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution may wish to implicate charge and put to trial. In the FIR, the co-accused, Zakir was ascribed the role of causing injury with dagger on the left shoulder of the deceased and both the injured witnesses namely Kalay Khan (PW-10) and Mushtaq (PW-11) had testified to this effect but subsequently through written statements they exonerated the said co-accused contradicting his previous statement. The complainant in an affidavit ExDA had himself mentioned that Zakir was not armed with dagger and he was only present at the place of occurrence, as such, he has exonerated him from accusation of causing dragger blow. During investigation, it was also found that accused Zakir was not having a dagger at the time of occurrence and he was only present at the place of occurrence. In these circumstances, the co-accused Zakir was acquitted of the charge by the learned Trial Court. The appellant's case is based on the same set of evidence and the role ascribed to him is similar to that of the co-accused Zakir. The conduct of the prosecution witnesses casts serious doubt on their credibility. The somersault taken by the complainant regarding the accusation leveled against the appellant and co-accused, since acquitted, persuade us to extend benefit of doubt to the appellant not as a matter of grace rather as a matter of right. Keeping in view the fact that the FIR was registered with a delay of 11 days without any plausible explanation and the conduct of the prosecution witnesses, the possibility of throwing a wider net by the complainant cannot be ruled out. In these circumstances, a shadow of doubt in the prosecution case has been created, benefit of which must be given to the appellant. It is settled law that a single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence. Any doubt arising in prosecution case is to be resolved in favour of the accused. However, as discussed above, in the present case the prosecution has failed to prove its case beyond any reasonable shadow of doubt. - CRIMINAL APPEAL NO.250 OF 2020 -: 6:- 8. For what has been discussed above, this appeal is allowed and the impugned judgment is set aside. The appellant is acquitted of the charge. He shall be released from jail forthwith unless detained/required in any other case. The above are the detailed reasons of our short order of even date. Islamabad, the 30" of May, 2022 Approved to porting Ianuiira,i

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Sardar Tariq Masood Mr. Justice Tariq Parvez Criminal Appeal No. 254 of 2014 (Against the judgment dated 16.06.2010 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeal No. 424 of 2003) The State through Director General, Anti-Narcotics Force …Appellant versus Abdul Jabar alias Jabbara …Respondent For the appellant: Raja Inam Amin Minhas, Special Prosecutor, Anti-Narcotics Force Muhammad Tariq, Deputy Director, Anti-Narcotics Force Waseem Ahsan, Assistant Director, Anti-Narcotics Force For the respondent: Syed Zulfiqar Abbas Naqvi, ASC Mr. Arshad Ali Chaudhry, AOR On Court’s notice: Syed Nayyab Hussain Gardezi, Standing Counsel for the Federation Date of hearing: 18.05.2016 JUDGMENT Asif Saeed Khan Khosa, J.: Criminal Miscellaneous Application No. 819 of 2016 This miscellaneous application is allowed and the documents appended therewith are permitted to be brought on the record of the main appeal. Disposed of. Criminal Appeal No. 254 of 2014 2. Abdul Jabar alias Jabbara respondent was tried by a learned Judge, Special Court (CNS), Rawalpindi on the allegation of Criminal Appeal No. 254 of 2014 2 having acquired and being in possession of assets derived from narcotic substances, etc. and after a full-dressed trial he was acquitted of the charge vide judgment dated 08.07.2003. The respondent’s acquittal was assailed by the State before the Lahore High Court, Rawalpindi Bench, Rawalpindi through Criminal Appeal No. 424 of 2003 and the said appeal was dismissed by a learned Division Bench of the said Court vide judgment dated 16.06.2010. Hence, the present appeal by leave of this Court granted on 28.04.2014. 3. We have heard very detailed and elaborate arguments of the learned counsel for the parties and have gone through the relevant statutory provisions cited at the bar as well as the precedent cases referred to. 4. While dismissing the appeal filed by the State against acquittal of the respondent by the trial court the learned Division Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi had concluded that an appeal could not have been filed by the State against acquittal of the respondent recorded by the trial court under the Control of Narcotic Substances Act, 1997 and also that even if the appeal filed by the State was maintainable still such an appeal could not have been filed before the High Court by a Special Prosecutor unless he was authorized to do so by the Federal Government. As depicted by our interim order dated 30.03.2016 essentially there are two questions involved in the present appeal and they are as follows: i) Whether the State can file an appeal against acquittal of an accused person in a case under the Control of Narcotic Substances Act, 1997? and ii) Whether a Special Prosecutor, Anti-Narcotics Force is competent to file an appeal before a High Court against acquittal of an accused person by a Special Court under the Control of Narcotic Substances Act, 1997? The first question mentioned above has already been answered by this Court through the judgment rendered in the case of The State v. Mst. Fazeelat Bibi (PLD 2013 SC 361) but the second question abegs an answer in the absence of any authoritative judgment on Criminal Appeal No. 254 of 2014 3 that issue thus far. The learned Standing Counsel for the Federation of Pakistan and the learned Special Prosecutor, Anti- Narcotics Force have assisted us on behalf of the appellant/State and have referred to various provisions of the Control of Narcotic Substances Act, 1997 as well as the Anti-Narcotics Force Act, 1997 besides relying upon different notifications issued by the Federal Government from time to time for arguing that the State was quite competent to file an appeal against acquittal before the High Court and for doing that the Director-General, Anti-Narcotics Force had the requisite authority to require any official of the Force to file such an appeal on behalf of the State acting through the Director- General. As against that the learned counsel for the respondent has vehemently maintained that the Control of Narcotic Substances Act, 1997 does not provide the procedure whereby an appeal is to be filed before a High Court on behalf of the State or the Director-General acting on behalf of the State and for that procedure one is to follow the provisions of section 417, Cr.P.C. and in that respect the provisions of section 10 of the Pakistan Criminal Law Amendment Act, 1958 may also be relevant. He has also highlighted that the appeal filed by the State before the High Court had been filed through the Force Commander, Regional Directorate, Anti-Narcotics Force, Rawalpindi and such Force Commander was not authorized by any law to act on behalf of the State for the purposes of filing an appeal. The learned counsel for the respondent has, thus, maintained that the impugned judgment passed by the High Court is legally correct and the same, therefore, does not warrant any interference by this Court. 5. We must state at the outset that we have found the impugned judgment passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi to be nothing but a jumble of confusion and we have found it quite difficult to understand as to what was actually meant by the High Court vis-à-vis the issue regarding filing of an appeal against acquittal by the State before a High Court. We have found that the references in the impugned judgment to section 417, Cr.P.C. and section 10 of the Pakistan Criminal Law Amendment Act, 1958 were totally unnecessary and were not even Criminal Appeal No. 254 of 2014 4 relevant to the controversy at hand because the provisions of the Control of Narcotic Substances Act, 1997 and those of the Anti- Narcotics Force Act, 1997 themselves provided a sufficient answer to the issues involved. 6. Section 48 of the Control of Narcotic Substances Act, 1997 provides a right of appeal against an order passed by a Special Court constituted under the said Act and it has already been clarified by this Court in the case of The State v. Mst. Fazeelat Bibi (PLD 2013 SC 361) that an appeal can competently be filed by the State against acquittal of an accused person by a Special Court. Subsection (1) of section 50 of the Control of Narcotic Substances Act, 1997 provides for appointment of a Special Prosecutor by the Federal Government who is competent to conduct proceedings under the said Act before a Special Court and, thus, an argument has been advanced before us that authority of a Special Prosecutor and his conduct of proceedings are restricted only to a Special Court and he can neither file an appeal nor can prosecute the same before an appellate court even if so directed by the State or the Director-General of the Anti-Narcotics Force. We have, however, found the said argument to be difficult to accept. Subsection (1) of section 71 of the Control of Narcotic Substances Act, 1997 clearly provides that the Federal Government may delegate all or any of its powers and functions under the said Act as it may deem necessary or expedient in favour of the Provincial Government, Director-General of the Anti-Narcotics Force or any other authority or officer of the Federal Government. The record produced before us shows that on 07.08.1997 the Federal Government had issued a notification whereby in exercise of its powers conferred by section 71 of the Control of Narcotic Substances Act, 1997 all the powers and functions of the Federal Government under the said Act had been delegated to the Director- General, Anti-Narcotics Force. The record further shows that on 19.11.2014 in pursuance of the provisions of subsection (1) of section 50 of the Control of Narcotic Substances Act, 1997 the Director-General, Anti-Narcotics Force had, in exercise of his powers conferred under section 71 of the said Act read with the Criminal Appeal No. 254 of 2014 5 Government of Pakistan Special Prosecutors (Terms and Conditions) Rules, 2013, not only appointed a Special Prosecutor but had also authorized him to conduct proceedings under the said Act for and on behalf of the Anti-Narcotics Force with effect from 17.10.2014. We have been informed that similar notifications have consistently been issued by the State regarding appointment and authorization of Special Prosecutors since the year 2001. The provisions of section 2(c) of the Anti-Narcotics Force Act, 1997 define the “Force” as the Anti-Narcotics Force constituted under section 3 of the said Act and subsection (2) of section 3 of the said Act provides that the “Force” shall consist of a Director-General to be appointed by the Federal Government and such number of other officials as the Federal Government may, from time to time, appoint to be members of the Force. Section 5(a) of the Anti- Narcotics Force Act, 1997 clearly and unambiguously provides that the functions of the “Force” shall be to inquire into, investigate and prosecute all offences relating to or connected with the various activities mentioned therein. It has already been held by this Court in the cases of Muhammad Hanif and others v. The State and others (2001 SCMR 84) and The State through Advocate-General, N-W.F.P., Peshawar v. Naeemullah Khan (2001 SCMR 1461) that an appeal in a criminal case is a continuation of the trial. We may add that in case an accused person is acquitted by a trial court then filing of an appeal against his acquittal may also be a step towards his prosecution. It is, thus, clear to us that filing of an appeal against the respondent’s acquittal in the present case fell within the functions of the Anti-Narcotics Force and such function could be exercised by the Director-General, Anti-Narcotics Force under the delegated authority of the Federal Government and for the purposes of filing of the appeal the Director-General could act through any of the officials of the Force. In the case in hand the right of appeal was that of the State/Federal Government and it is not disputed before us that at all stages of this case it was the State/Federal Government which was prosecuting the respondent before the trial court and had also filed an appeal before the High Court against the respondent’s acquittal. The legal position which emerges is that the State/Federal Government could competently Criminal Appeal No. 254 of 2014 6 file an appeal before the High Court; the Director-General, Anti- Narcotics Force could act in the matter as a delegatee of the Federal Government; and the function of the Anti-Narcotics Force regarding filing of an appeal could competently be performed by any official of the Force, including a Special Prosecutor, as directed by the Director-General, Anti-Narcotics Force. In this view of the matter the whole controversy over the State and the Director- General having acted in this case before the High Court through a Special Prosecutor has appeared to us to be making a fetish of technicalities which cannot be allowed to defeat the ends of justice if the jurisdictional competence is not doubted in the matter of filing of the appeal by the State/Federal Government or the Director-General, Anti-Narcotics Force. These observations made by us also take care of the argument addressed before us regarding the State acting in this case before the High Court through a Force Commander because it is not doubted that it was the State which had filed the appeal before the High Court and even before this Court it is the Special Prosecutor who is prosecuting the matter. 7. For what has been discussed above this appeal is allowed, the impugned judgment passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi on 16.06.2010 is set aside and the matter is remanded to the said Court to decide Criminal Appeal No. 424 of 2003 afresh on its merits. Judge Judge Judge Islamabad 18.05.2016 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Iqbal Hameedur Rahman Mr. Justice Umar Ata Bandial Criminal Appeal No. 264 of 2006 (Against the judgment dated 13.06.2002 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1912 of 2000) The State …Appellant versus Anwar Saif Ullah Khan …Respondent For the appellant/State: Mr. M. Bashir Kiyani, Deputy Prosecutor-General Accountability For the respondent: Khawaja Harris Ahmed, ASC Mr. M. S. Khattak, AOR In person. Dates of hearing: 08.01.2015, 13.01.2015, 14.01.2015, 20.01.2015 & 21.01.2015 JUDGMENT Asif Saeed Khan Khosa, J.: In his capacity as a Federal Minister Anwar Saif Ullah Khan respondent forced his will upon a reluctant Chairman of a public sector Corporation and after relaxing the relevant rules he got 145 persons appointed to various jobs against the requirements of the Corporation only to please his political friends in the Parliament. The Lahore High Court, Lahore held that what the respondent did was in accord with the prevalent practice. Such implied acceptance of a culture of political patronage cannot be approved by us. The High Court had concluded that the respondent had no criminal intent in the matter. With respect to the High Court, we do not agree. 2 Criminal Appeal No. 264 of 2006 2. The facts of the case are that the respondent served as a Minister for Petroleum and Natural Resources in the Federal Cabinet from 28.11.1994 to 05.11.1996. On 10.05.1997 a Reference was filed against the respondent by the Chief Ehtesab Commissioner before the Lahore High Court, Lahore under section 14(1) of the Ehtesab Ordinance, 1996 with an allegation of indulging in corruption and corrupt practices while holding a public office and upon promulgation of Ordinance No. XVIII of 1999 the said Reference stood transferred to the Accountability Court, Lahore, was numbered as Reference No. 4-B of 1999 and was treated as a Reference filed by the National Accountability Bureau under the National Accountability Ordinance, 1999. The precise allegation leveled against the respondent was that in his capacity as the Federal Minister for Petroleum and Natural Resources he had misused his authority by prevailing upon the Chairman, Oil & Gas Development Corporation and getting 145 persons recommended by some parliamentarians appointed to various jobs in the Oil & Gas Development Corporation and for this purpose he had relaxed the relevant rules. On 15.05.2000 the Accountability Court, Lahore framed a charge against the respondent for an offence under section 9(a)(vi) of the National Accountability Ordinance, 1999 to which the respondent pleaded not guilty and claimed a trial. The prosecution produced eight witnesses in support of its case against the respondent whereafter the respondent’s statement under section 342, Cr.P.C. was recorded wherein he denied and controverted the allegations leveled against him and professed his innocence. The respondent made his statement on oath under section 340(2), Cr.P.C. before the trial court when he appeared as DW1. Upon conclusion of the trial the learned Judge, Accountability Court, Lahore convicted the respondent for an offence under section 3(1)(d) of the Ehtesab Ordinance, 1996 read with section 35 of the National Accountability Ordinance, 1999 vide judgment dated 30.11.2000 and sentenced the respondent to simple imprisonment for one year and a fine of Rs. 50,00,000/- or in default of payment thereof to 3 Criminal Appeal No. 264 of 2006 undergo simple imprisonment for one year. The benefit under section 382-B, Cr.P.C. was extended to the respondent. The Accountability Court also passed a consequential order under section 15 of the National Accountability Ordinance, 1999 disqualifying the respondent from contesting an election or holding a public office for a specified period. The respondent challenged his conviction and sentence before the Lahore High Court, Lahore through Criminal Appeal No. 1912 of 2000 which was heard and allowed by a learned Division Bench of the said Court vide judgment dated 13.06.2002 and the respondent was acquitted of the charge. The State has assailed the respondent’s acquittal by the Lahore High Court, Lahore through the present appeal by leave of this Court granted on 10.05.2006. 3. In support of this appeal the learned Deputy Prosecutor- General Accountability appearing for the appellant/State has argued that the actus reus of relaxing the relevant rules and approving appointment of 145 persons to different posts in the Oil & Gas Development Corporation had never been denied or disputed by the respondent and the mens rea for the exercise was nothing but obliging some parliamentarians which intention was unconstitutional and illegal besides being criminally culpable and, thus, the Lahore High Court, Lahore was not justified in acquitting the respondent of the charge by holding that the prosecution had failed to prove any criminal intent on the part of the respondent. In support of his submissions the learned Deputy Prosecutor-General Accountability has placed reliance upon the cases of Mushtaq Ahmed Mohal and others v. The Honourable Lahore High Court, Lahore and others (1997 SCMR 1043) and Syed Mubashir Raza Jaffri and others v Employees Old-Age Benefits Institutions (EOBI) through President of Board, Board of Trustees and others (2014 SCMR 949). As against that the learned counsel for the respondent has argued that the view formed by the Lahore High Court, Lahore in the matter was a view which was reasonable and a disagreement with such view does not provide a valid basis for interfering with a judgment of acquittal. In support of this argument the learned 4 Criminal Appeal No. 264 of 2006 counsel for the respondent has relied upon the judgment passed by this Court in the case of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11) wherein different principles for interference in a judgment of acquittal had been laid down in detail. He has also argued that the case in hand was a case of an alleged commission of a criminal offence and, thus, the evidence led by the prosecution had to be assessed on the basis of the actus reus and the mens rea which did not coincide in this case so as to make the offending action of the respondent a criminal offence. In this regard he has submitted that after receiving requests from some parliamentarians the respondent had referred the matter of appointments to the Chairman, Oil & Gas Development Corporation, the respondent had relaxed the relevant rules and had approved the making of appointments when he was advised that he had the requisite jurisdiction to relax the rules and the actual appointments were made by the Chairman, Oil & Gas Development Corporation and not by the respondent. He has also argued that before relaxing the rules and granting approval for making of the appointments the respondent had been informed that there was already in existence a prevailing practice whereby the Federal Minister for Petroleum and Natural Resources could grant the requisite approval for appointments after relaxation of the rules as a special case. It has been maintained by the learned counsel for the respondent that following a prevalent practice negated the element of mens rea on the part of the respondent which was crucially important for transforming the respondent’s actus reus into a criminal offence. The learned counsel for the respondent has gone on to argue that Ijaz Ahmed Khan (PW1) had stated before the trial court that the required appointments were to be made after fulfillment of certain conditions, Mobeen Ehsan (PW3) had deposed about his own authority to recruit and had never stated that the respondent had pressurized him in that regard, Akhtar Hussain (PW4) had stated before the trial court that the recruitments in question were made in accordance with the Rules of the Oil & Gas Development Corporation, Abdul Mateen Ahmed (PW5) had also stated the same thing as was stated by 5 Criminal Appeal No. 264 of 2006 Akhtar Hussain (PW4) and R. A. Hashmi (PW6) had clearly deposed before the trial court that the respondent had not applied any pressure upon anybody in the matter of appointment of the relevant persons nor any dictation was given in that regard by the respondent to the Oil & Gas Development Corporation. It has, thus, been maintained by the learned counsel for the respondent that there was no criminal intent in the matter on the part of the respondent and, therefore, the Lahore High Court, Lahore was quite justified in acquitting him. The learned counsel for the respondent has read out the relevant portions of the impugned judgment passed by the Lahore High Court, Lahore and has submitted that the grounds weighing with the High Court for acquitting the respondent were sound and, therefore, the respondent’s acquittal does not warrant any interference by this Court. The learned counsel for the respondent has also drawn our attention towards Exhibit-DW1/2 which contained the government’s policy in respect of Oil & Gas Development Corporation and laid down the requirement of appointments and recruitment through a Selection Board but according to the same policy the Federal Minister concerned could approve a departure from the requirement of advertisement. It has been maintained by the learned counsel for the respondent that the respondent had granted such approval qualifying that such departure would be made in cases of urgency and for ensuring merit. He has also referred to the document brought on the record as Exhibit- DW1/17 showing that the Chairman, Oil & Gas Development Corporation did not usually accept dictation of the Federal Minister. With these submissions the learned counsel for the respondent has maintained that the High Court could have reasonably come to the conclusion it had reached and that the High Court was amply justified in concluding that the requisite mens rea for turning the respondent’s action into a criminal offence was lacking in this case. In support of his submissions the learned counsel for the respondent has placed reliance upon the cases of Maj. (Retd.) Tariq Javed Afridi v. The State (PLD 2002 Lahore 233), The State and others v. M. Idrees Ghauri and others 6 Criminal Appeal No. 264 of 2006 (2008 SCMR 1118), M. Siddique-ul-Farooque v. The State (PLD 2002 Karachi 24), Wahid Bakhsh Baloch v. The State (2014 SCMR 985), Mansur-ul-Haque v. Government of Pakistan (PLD 2008 SC 166) and Pir Mazharul Haq and others v. The State through Chief Ehtesab Commissioner, Islamabad (PLD 2005 SC 63). While exercising his right of rebuttal the learned Deputy Prosecutor- General Accountability has submitted that the Oil & Gas Development Corporation Rules define a “temporary” employment and the appointment of 145 persons in this case was not temporary appointment because the letters of appointment had mentioned probation which is meant for regular posts only. 4. After hearing the learned counsel for the parties and going through the record of the case and the precedent cases with their assistance we have found that the use of authority by the respondent in the matter of appointment of 145 persons on different posts in the Oil & Gas Development Corporation is not disputed and that the main issue is as to whether such use of authority by the respondent amounted to misuse of authority or not within the purview of section 9(a)(vi) of the National Accountability Ordinance, 1999 which provides as follows: 9. Corruption and Corrupt Practices: (a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices:- --------------------- (vi) if he misuses his authority so as to gain any benefit or favour for himself or any other person, or renders or attempts to render or willfully fails to exercise his authority to prevent the grant or rendition of any undue benefit or favour which he could have prevented by exercising his authority. Section 14(d) of the National Accountability Ordinance, 1999 is relevant to a charge under section 9(a)(vi) of the said Ordinance and the same reads as under: 14. Presumption against accused accepting illegal gratification: --------------------- 7 Criminal Appeal No. 264 of 2006 (d) In any trial of an offence under clauses (vi) and (vii) of section 9, the burden of proof that he used his authority, or issued any directive, or authorised the issuance of any policy or statutory rule or order (SRO), or made any grant or allowed any concession, in the public interest, fairly, justly and for the advancement of the purpose of the enactment under which the authority was used, directive or policy or rule or order was issued or grant was made or concession was allowed shall lie on the accused, and in the absence of such proof the accused shall be guilty of the offence, and his conviction shall not be invalid by the reason that it is based solely on such presumption; Provided that the prosecution shall first make out a reasonable case against the accused charged under clause (vi) or clause (vii) of sub-section (a) of section 9. Another issue germane to the above mentioned main issue is as to whether any misuse of authority by the respondent in the matter could be said to have been committed with criminal intent so as to make his action culpable or not. 5. The provisions of sections 9(a)(vi) and 14(d) of the National Accountability Ordinance, 1999 have been discussed and analyzed by this Court in some previous cases in the context of allegations regarding misuse of authority and it may be useful to refer to those cases first before discussing the merits of the present case. In the case of Pir Mazharul Haq and others v. The State through Chief Ehtesab Commissioner, Islamabad (PLD 2005 SC 63) a Provincial Minister according approval regarding regularization of a plot was acquitted by this Court and it was observed as follows: “28. In criminal cases the general rule is that the accused must always be presumed to be innocent and the onus of proving everything essential to the establishment of the offence is on the prosecution. All that may be necessary for the accused is to offer some explanations of the prosecution evidence and if this appears to be reasonable even though not beyond doubt and to be consistent with the innocence of accused, he should be given the benefit of it. The proof of the case against accused must depend for its support not upon the absence or want of any explanation on the part of the accused but upon the positive and affirmative evidence of the guilt that is led by the prosecution to substantiate accusation. There is no cavil with the proposition and judicial consensus seems to be that "if on the facts proved no hypothesis consistent with the innocence of the accused can be suggested, the conviction must be upheld. If however, such facts can be reconciled with any reasonable hypothesis compatible with the innocence of the accused the case will have to be treated as one of no evidence and the conviction and the sentence will in that case have to be quashed." ------- 8 Criminal Appeal No. 264 of 2006 29. We are not persuaded to agree with learned Deputy Prosecutor General NAB that conviction could have been awarded in view of the provision as contained in section 14 of NAB Ordinance, 1999 for the simple reason that "the section cannot be used to undermine the well established rule of law that save in very exceptional class of cases, the burden to prove the guilt of the accused is on the prosecution and never shifts. The section does not affect the onus of providing the guilt of an accused which always rests on the prosecution and it does not cast any burden on an accused person to prove that no crime was committed, by proving facts specially within his knowledge, nor does it warrant the conclusion that if anything is unexplained, which the Court thinks the accused could explain, he ought therefore to be found guilty." ------- 30. It hardly needs any elaboration that "the ordinary rule that applies to criminal trials, viz., that the onus lies on the prosecution to prove the guilt of the accused, is not in any way modified by the rule of evidence contained in this section which cannot be used to make up for the inability of the prosecution to produce evidence of circumstances necessary to prove the guilt of the accused. It is only in cases where the facts proved by the evidence give rise to a reasonable inference of guilt unless the same is rebutted, that such inference can be negative by proof of some fact which, in its nature, can only be within the special knowledge of the accused. If the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence." ------- 31. It would be a misconception of law that every accused who faced trial in the Accountability Court or against whom a reference has been sent the "presumption as envisaged in section 14 of the NAB Ordinance, 1999" would start running against him. Where the prosecution has failed to discharge the onus of "proof" by adducing cogent, concrete and forthright evidence the presumption of guilt would not arise against him and thus the question of conviction would have not arisen. The said proposition has been clarified by this Court in case titled Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607), operative portion whereof is reproduced herein above for ready reference:-- "Be that as it may, the prosecution has to establish the preliminary facts whereafter the onus shifts and the defence is called upon to disprove the presumption. This is also the consistent stand taken by Mr. Abid Hassan Minto as well as the learned Attorney-General who adopted his arguments. This interpretation appears to be reasonable in the context of the background of the NAB Ordinance and the rationale of promulgating the same notwithstanding the phraseology used therein. We are also of the view that the above provisions do not constitute a bill of attainer, which actually means that by legislative action an accused is held guilty and punishable. For safer dispensation of justice and in the interest of good governance, efficiency in the administrative and organizational set-up, we deem it necessary to issue the following directions for effective operation of section 14 (d). 9 Criminal Appeal No. 264 of 2006 (1) The prosecution shall first make out a reasonable case against the accused charged under section 9(a)(vi) and (vii) of the NAB. (2) In case the prosecution succeeds in making out a reasonable case to the satisfaction of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shall shift to the accused to rebut the presumption of guilt." ---- 32. In no circumstances the defence should be expected to prove the accusation. In a similar wake of event while discussing the question of presumption it was held in Rehmat v. State PLD 1977 SC 515 as follows: -- "Needless to emphasise that in spite of section 106 of the Evidence Act in a criminal case the onus rests on the prosecution to prove the guilt of the accused beyond reasonable doubt and this section cannot be construed to mean that the onus at any stage shifts on to the accused to prove his innocence or make up for the liability and failure of the prosecution to produce evidence to establish the guilt of the accused. Nor does it relieve the prosecution of the burden to bring the guilt home to the accused. It is only after the prosecution has on the evidence adduced by it, succeeded in raising reasonable inference of the guilt of the accused, unless the same is rebutted, that this section wherever applicable, comes into play and the accused may negative the inference by proof of some facts within his special knowledge. If, however, the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence." 33. In the light of what has been discussed herein above we are of the view that prosecution has failed to establish the guilt beyond shadow of doubt. The appeals preferred on behalf of appellants are hereby accepted and the judgment passed by learned High Court of Sindh Karachi in Ehtesab Reference No. 8 of 1997 is set aside.” (underlining has been supplied for emphasis) 6. The case of Mansur-ul-Haque v. Government of Pakistan (PLD 2008 SC 166) was a case of a Chief of the Naval Staff allegedly misusing his authority in the matter of purchase of some naval ships. While acquitting the accused person this Court held as under: “9. It is clear from the above referred portion of the judgment of the High Court that the prosecution has not been able to bring on record any cogent evidence to establish the charge and learned DPGA frankly conceded the factual position in the light of which the trial Court held that the allegation regarding exorbitant price and financial loss to the PNSC or financial gain by the accused, was not proved. Learned counsel 10 Criminal Appeal No. 264 of 2006 for the petitioner has not been able to convince us from the evidence on the record that essential elements of mens rea and intention to commit an offence under section 9(a)(vi) of NAB Ordinance were traceable in the transaction or the accused acted for their personal gain at the cost of causing financial loss to the organization (PNSC) or the ships in question were not of viable technology and were not that of international standard and specification. The mere procedural irregularities in the transaction, would not be sufficient to constitute an offence under section 9(a)(vi) of the ibid Ordinance. This is essential to draw distinction between procedural irregularities and violation of substantial provisions of law to determine the question of criminal liability in the transaction. The procedural irregularities may bring an act done in the official capacity within the ambit of misconduct which is distinguishable from criminal misconduct or an act which may constitute an offence and thus unless it is established through the evidence that an act or series of acts done in the transaction constituted an offence, the criminal charge would be groundless. We may point out that notwithstanding the special provision contained in the NAB Ordinance regarding shifting of the burden of proof, the fundamental principle of the law of criminal administration of justice that basic onus is always on the prosecution to establish the commission of an offence is not changed and in the present case, we find that the respondents having negotiated with the seller company abroad in the official capacity entered into the contract of purchase of ships and in the process certain procedural irregularities constituting an act of misconduct in the contemplation of law applicable to their service were probably committed but the same may not constitute a criminal offence under section 9(a)(vi) of NAB Ordinance punishable under section 10 of the said Ordinance or under any other law without proof of the existence of element of dishonest intention of personal gain. The prosecution in the present case has not been able to bring on record any evidence to substantiate the allegation of dishonest intention to cause financial loss to the organization for personal gain to bring the case within the purview of National Accountability Bureau Ordinance, 1999. This is settled law that unless prosecution discharges the initial burden of proving the charge no presumption of guilt can be raised and in the present case, the prosecution except pointing out certain irregularities committed by the respondents in the transaction of purchase of ships for the use of PNSC, has not been able to bring on record any evidence oral or documentary to show that either the price for which the ships were purchased, was exorbitant or the respondents while acting for their personal gain have caused financial loss or any other damage to the organization. In the light of the facts of prosecution case and the circumstances leading to the completion of transaction it is evident on record that the view of the evidence taken by the High Court was unexceptional. The National Accountability Bureau Ordinance, 1999, no doubt is a special law and prosecution having the advantage of the provision of section 14(a) of the Ordinance may not under heavy burden to discharge the onus of proving the charge as the Court may on discharge of initial burden of proving prima facie case by the prosecution raise a presumption of guilt but in the light of concept of criminal administration of justice, the prosecution is not absolved of its duty to prove the charge beyond reasonable doubt under NAB Ordinance as the burden of proof is only shifted on the person facing charge if the prosecution succeeds in making out a reasonable case by discharging the 11 Criminal Appeal No. 264 of 2006 initial burden of proving the charge. The provision of section 14(d) of the said Ordinance envisages that burden of proof is only shifted to the accused to rebut the allegations if the prosecution succeeds in establishing the preliminary facts to raise the presumption of guilt.” (underlining has been supplied for emphasis) 7. In the case of The State and others v. M. Idrees Ghauri and others (2008 SCMR 1118) a public servant accused of misusing his authority in the matter of allotment of plots had been acquitted by this Court. It had been observed by this Court as follows: “11. The leading facts of the case are that appellant while discharging the functions of Managing Director of Cholistan Development Authority (C.D.A.) also exercised the powers of Collector under the Colonization of Government Lands (Punjab) Act, 1912 without formal conferment of such powers in consequence to which he was put to face the criminal prosecution for the charge of corruption and corrupt practices. The defence plea of the appellant was that in view of the past practice, he being under the bona fide impression that M.D. C.D.A., was competent to exercise the power of Collector exercised such powers, which were also subsequently conferred on him, therefore, he committed no offence. In the light thereof, the real question for determination would be whether the appellant assumed the powers of Collector with mala fide intention and for some ulterior motive or he did exercise the power of Collector in good faith without any consideration of illegal gain or undue benefit. There is no cavil to the proposition that an illegal order in a particular set of fact, may have the penal consequence but the question required to be adhered in the present case, was as to whether the act of grant of propriety rights of the land without the power of Collector, by itself would constitute an offence of corruption and corrupt practices within the meanings of section 9(a)(vi) of the Ordinance without proof of essential ingredient of illegal gain and undue favour to constitute such an offence and the answer would certainly be in the negative. The concept of criminal administration of justice is based on the assumption that criminal act is injurious not just to an individual but society as a whole and violation of the criminal law which is built upon constitutional principles of the substantial as well as procedural law, has the consequence of punishment, therefore, the prosecution in the light of constitutional principle is under heavy duty to establish the violation of criminal law to award the punishment. The striding of law to bring an action within its compass is in conflict to the concept of fair treatment, therefore it is primary duty of the Court to ascertain whether the alleged offence was outcome of an act in violation of some law which can be termed as actus reus of the crime (guilty act) and if this essential element of crime is missing, the breach may not subject to the sanction of criminal law, therefore, a person who is blamed to have committed an offence if is not accountable in criminal law for his action, he cannot be subject to the prosecution. The mens rea (guilty mind) is another essential component of crime without proof of which a person cannot be held guilty of an offence and similarly without the proof of concurrence to commit the crime, the offence is not complete. In addition to the above basic components of a crime, the harm caused in consequence to an act is also considered an essential element of a crime because the 12 Criminal Appeal No. 264 of 2006 act if is harmless it may not constitute a crime. The above components of an offence of corruption and corrupt practices are not traceable in the series of transaction in the present case. 12. The charge against the appellant was that he by misuse of his authority, committed an offence of corruption and corrupt practices within the meanings of section 9(a)(vi) punishable under section 10(a) of the Ordinance. The misuse of authority in general, means wrong and improper exercise of authority for the purpose not intended by law, therefore, in order to prove the charge of misuse of authority, at least two basic ingredients i.e. mens rea and actus reus of the crime have to be necessarily established and in case anyone of these two elements is found missing, the offence is not made out. Mens rea in context to the misuse of authority means to act in disregard of the law with the conscious knowledge that act was being done without authority of law and except in the case of strict liability, the element of mens rea is necessary constituent of crime. The offence of corruption and corrupt practices within the meanings of section 9(a)(vi) of the Ordinance, is not an offence of strict liability, therefore, the use of authority without the object of illegal gain or pecuniary benefit or undue favour to any other person with some ulterior motive, may not be a deliberate act to constitute an offence. The mens rea for an offence under section 9(a)(vi) of the Ordinance, is found in two elements i.e. conscious misuse of authority and illegal gain or undue benefit and in absence of anyone of these basic components of crime, the misuse of authority is not culpable, therefore, the prosecution must establish mens rea and actus reus of the crime to establish the charge, as without proof of these elements of crime, mere misuse of authority, has no penal consequence. The offence of corruption and corrupt practices has not been as such defined in the Ordinance but in general terms, the corruption is an act which is done with intent to give some advantage inconsistent with law and wrongful or unlawful use of official position to procure some benefit or personal gain, whereas the expression corrupt practices is series of depraved/debased/morally degenerate acts, therefore, as contemplated in section 14(d) of the Ordinance, unless the prosecution successfully discharges the initial burden of proving the allegation in a reasonable manner, the accused cannot be called to disprove the charge by raising a presumption of guilt. In the present case, the NAB authorities on the basis of order passed by the appellant by virtue of which land was allotted to the affectees of Lal Sohanra Park, launched prosecution against the appellant for the charge of committing an offence under section 9(a)(vi) of the Ordinance whereas the appellant in his defence plea asserted that he having found that the rights of allottees were acknowledgeable in law, exercised the powers of Collector in a good faith with bona fide intention and perusal of record would show that no direct or circumstantial evidence was brought on record to suggest that appellant exercised the power of Collector for the consideration of an illegal gain or an undue benefit for himself or for any other person and consequently, the case would not fulfil the test of section 9(a)(vi) of NAB Ordinance to justify the criminal prosecution. 13. The allegation without specific evidence that appellant in connivance with his co-accused acted for a dishonest or unlawful purpose or the land in question was allotted to the persons who were not entitled for such allotment under the law, would seriously reflect upon the truthfulness of the allegation and learned DPG has not been able to satisfy us that in such a case, mere use of authority contrary to law, is a wrong of the nature, which would necessarily entail the penal consequence under NAB 13 Criminal Appeal No. 264 of 2006 Ordinance. The prosecution also has not been able to bring on record any evidence direct or circumstantial in proof of the fact that the appellant in collusion with his co-accused or in connivance with the allottees of the land by indulging in corruption and corrupt practices, extended undue favour to them for some personal gain or pecuniary advantage, therefore, the mere jurisdictional defect in the allotment without any motive, illegal gain or undue benefit, would not constitute an offence of corruption and corrupt practices within the meanings of section 9(a)(vi) read with section 10(a) of the NAB Ordinance, 1999. ------ --------------------- 15. The presumption of guilt under section 14(d) of the NAB Ordinance, in respect of an offence can only be raised after prosecution has established preliminary facts and succeeded in making out prima facie a reasonable case to charge an accused for an offence under section 9(a)(vi) of the Ordinance. Therefore, notwithstanding the provision of section 14(d) of NAB Ordinance, this is settled law that unless the prosecution to the satisfaction of Court succeeds in discharging the initial burden of proving the allegation, no presumption of guilt can be raised to shift burden of disproving the allegation to the accused.” (underlining has been supplied for emphasis) 8. In the case of Wahid Bakhsh Baloch v. The State (2014 SCMR 985) it was alleged that the accused person, in his capacity as Deputy Commissioner, had asked a Sub-Engineer in the Municipal Committee to make an incorrect (reduced) assessment of the value of some State land and had then got the same allotted in favour of the co-accused. The Accountability Court had convicted the accused person for misuse of authority and his appeal had been dismissed by the High Court but he was acquitted by this Court. It was held by this Court as follows: “12. In M. Anwar Saifullah Khan v. State (PLD 2002 Lahore 458), the Court while adverting to the initial burden on prosecution to prove the charge of misuse of authority or powers held at page 477 as under:-- "20. Misuse of authority means the use of authority or power in a manner contrary to law or reflects an unreasonable departure from known precedents or custom. Every misuse of authority is not culpable. To establish the charge of misuse of authority, the prosecution has to establish the two essential ingredients of the alleged crime i.e. "mens rea" and "actus reus". If either of these is missing no offence is made out. Mens rea or guilty mind, in context of misuse of authority, would require that the accused had the knowledge that he had no authority to act in the manner he acted or that it was against law or practice in vogue but despite 14 Criminal Appeal No. 264 of 2006 that he issued the instruction or passed the order. In the instant case the documentary evidence led by the prosecution and its own witnesses admit that the appellant was told that he had the authority to relax the rules and the competent authority P.W.3 could make the appointments thereafter. The guilty intent or mens rea is missing. Even the actus reus is doubtful because he had not made the appointments. He merely approved the proposal and sent the matter to the competent authority. At worst he could be accused of mistake of civil law. i.e. ignorance of rules. But a mistake of civil law negates mens rea." 13. Admittedly the only evidence to prove mens rea is the statement of Khair Muhammad P.W.4 who was at that time serving as Sub-Engineer in the Municipal Committee and alleged that when he received the letter to assess the property in question, he initially valued it as Rs. 150 per sqft. but it was at the asking of the appellant that he reduced it to Rs. 30 per sqft. However, in his cross-examination he admitted that he never gave it in writing that the property valued Rs. 150 per sqft. When questioned regarding the formula followed by him to determine the value, he explained that the property in question was assessed after assessing the value of the adjacent properties but admitted that the adjoining properties were never assessed as none was sold. The appellant while appearing as his own witness in terms of section 340, Cr.P.C. had candidly denied the charge and maintained that he merely forwarded the letter received from the Senior Member Board of Revenue to Sub-Engineer concerned and the latter's report received regarding assessment was sent to the former and that he had nothing to do with either the allotment or giving possession of the property to Iqbal son of Momin. Surprisingly no question was asked by the prosecution to him that the property in question was assessed at the rate of Rs. 150 at his asking; that he derived any pecuniary benefit from the said transaction or that the property was owned by the revenue department and not the Municipal Committee. There is no corroboration of the statement of P.W.4 regarding the value of the property nor is there any other documentary evidence either. 14. In the afore-referred circumstances, we are of the view that the prosecution had failed to discharge the initial burden to prove beyond reasonable doubt to sustain conviction. Consequently, the impugned judgments cannot be sustained. The appeal is allowed and the impugned judgment of the High Court and that of the trial Court to his extent are set aside. The appellant is acquitted of the charge.” (underlining has been supplied for emphasis) 9. Similar interpretations of sections 9(a)(vi) and 14(d) of the National Accountability Ordinance, 1999 had been advanced by different High Courts in the cases of Aftab Ahmed Khan Sherpao, Ex-Chief Minister of N.-W.F.P. v. The State (PLD 2001 Peshawar 80), Maj. (Retd.) Tariq Javed Afridi v. The State (PLD 2002 Lahore 233) and Muhammad Hayat and 2 others v. The State (PLD 2002 Peshawar 118). 15 Criminal Appeal No. 264 of 2006 10. With reference to the precedent cases mentioned above the law appears to be settled by now that in a case involving a charge under section 9(a)(vi) of the National Accountability Ordinance, 1999 the prosecution has to make out a reasonable case against the accused person first and then the burden of proof shifts to the accused person to rebut the presumption of guilt in terms of section 14(d) of the said Ordinance. It is also apparent from the same precedent cases that a mere procedural irregularity in the exercise of jurisdiction may not amount to misuse of authority so as to constitute an offence under section 9(a)(vi) of the National Accountability Ordinance, 1999 and that a charge of misuse of authority under that law may be attracted where there is a wrong and improper exercise of authority for a purpose not intended by the law, where a person in authority acts in disregard of the law with the conscious knowledge that his act is without the authority of law, where there is a conscious misuse of authority for an illegal gain or an undue benefit and where the act is done with intent to obtain or give some advantage inconsistent with the law. The said precedent cases also show that misuse of authority means the use of authority or power in a manner contrary to law or reflecting an unreasonable departure from known precedents or custom and also that mens rea or guilty mind, in the context of misuse of authority, would require that the accused person had the knowledge that he had no authority to act in the manner he acted or that it was against the law or practice in vogue but despite that he issued the relevant instruction or passed the offending order. 11. Reverting to the merits of the present case we find that some very clear and unmistakable clues to a resolution of both the issues mentioned in paragraph No. 4 above lie in just three pages of the otherwise voluminous record of this case and those three pages are pages No. 396, 397 and 398 of Part-1 of Criminal Miscellaneous Application No. 415 of 2006 filed in the present appeal. The said pages comprise of the Summary regarding making of the offending 145 appointments and contain the evidence and 16 Criminal Appeal No. 264 of 2006 material brought on the record of the trial court as Exhibit-PW6/1, Exhibit-PW6/8, Mark-B, Mark-C, Exhibit-PW6/9, Exhibit-PA, Exhibit-PD, Exhibit-PA/1, Exhibit-PB, Exhibit-PB/1, Exhibit- PB/2, Exhibit-PB/3 and Exhibit-PA/2. The said three pages of the record are reproduced below for facility of reference: “OFFICE OF THE MINISTER FOR PETROLEUM AND NATURAL RESOURCES _________________ Islamabad, Sept. 15, 1996. 1. As Minister is kindly aware that we have been under tremendous pressure from the Parliamentarians to cater for their essential requirements of recruitment in the OGDC. Since Budget Session we have been withstanding this pressure and telling them that their requests for recruitment will be acceded to as soon as the position is eased. We have since prepared a list of applicants based on the recommendations of the Parliamentarians. Minister has already been pleased to go through the list and has since approved it. 2. Before the Chairman OGDC is requested to issue appointment letters, Minister may like to see. (signatures) 16/9/96 (R. A. Hashmi) Principal Staff Officer The Minister PSO (signatures) 23/9/96 Chairman OGDC 3. Principal Staff Officer to the Federal Minister for Petroleum & Natural Resources has conveyed the approval of the Minister for appointment of 145 applicants in OGDC against various posts. 4. In this respect, it is submitted that appointments in OGDC are made against the advertised post after necessary test and interview. However, in the recent past, a number of appointments have been made on the directives of the Prime Minister’s Secretariat without advertising the post, as a special case. In the instant case if the directives of the Honourable Minister are carried out, approval will be required for relaxation of existing policy and the rules. In such case, the applicants will be appointed on the basis of qualifications and experience and will be given the same designation as offered to the Prime Minister’s Secretariat under Phase-I, Phase-II, Phase-III of appointment and the special cases. 17 Criminal Appeal No. 264 of 2006 5. Approval may kindly be solicited from the Minister for Petroleum & Natural Resources for appointment of 145 in relaxation to the rules, as a special case. 6. Submitted please. (signatures) 30/9 (AIJAZ MUHAMMAD KHAN) Chief Personnel Officer MANAGER (PERSONNEL) 7. In view of para 4/N, Para 5/N may kindly be considered. (signatures) 30 Spt 1996 AM (P) CHAIRMAN 8. With reference to para-1 of the note of Principal Staff Officer, the factual position has been briefly explained in para-4. It may be added that existing work force in the OGDC is considerably in excess of its requirements and a severe burden on its budget. However the proposal at Para-5 is submitted for consideration and approval. (signatures) 16.10.96 (M. MUBEEN AHSAN) Chairman OGDC Minister for Petroleum & Natural Resources Approved (signatures) 16/10/96 Chairman OGDC (signatures) 16/10 AM (Personnel) (signatures) 16 Oct 1996 AM (P) CPO (R)” 12. The note put up by his Principal Staff Officer before the respondent on 15.09.1996 clearly showed that: (i) the initiative for making the relevant appointments had been taken by the office of the 18 Criminal Appeal No. 264 of 2006 respondent and not the office of the Chairman, Oil & Gas Development Corporation; (ii) there was a tremendous pressure of the parliamentarians upon the respondent for making the appointments; (iii) the pressure from the parliamentarians was to cater for “their” essential requirements of recruitment in the Oil & Gas Development Corporation; (iv) the respondent had been resisting the pressure for some time in the past; (v) a list of applicants had been prepared by the respondent’s office which list was based upon recommendations of the parliamentarians; (vi) the respondent had gone through the prepared list and had already approved it; (vii) the Chairman, Oil & Gas Development Corporation was to be “requested” to issue the letters of appointment; and (viii) no selection process or consideration of qualifications or merit was involved before approval of the list by the respondent and issuance of the letters of appointment. It is, thus, obvious that the requirement vis-à-vis appointments was that of the parliamentarians and not of the Oil & Gas Development Corporation, the respondent had been resisting the pressure in that regard for some time in the past because the Oil & Gas Development Corporation did not need any such appointment and a list of candidates had already been approved by the respondent before it was to be sent to the Chairman, Oil & Gas Development Corporation for issuing the letters of appointment. It is, therefore, quite evident that in the matter of such appointments the respondent was motivated to please the parliamentarians rather than looking after the interests of the Oil & Gas Development Corporation, the initiative for the appointments had come from the respondent and not from the Chairman, Oil & Gas 19 Criminal Appeal No. 264 of 2006 Development Corporation and also that in order to release the pressure upon him from the parliamentarians the respondent had decided to force his will upon the Competent Authority, i.e. Chairman, Oil & Gas Development Corporation in the matter of such appointments. 13. The note forwarded by the Chief Personnel Officer, Oil & Gas Development Corporation to the Chairman, Oil & Gas Development Corporation on 30.09.1996 had highlighted that the appointments in the Oil & Gas Development Corporation had to be made against advertised posts after necessary tests and interviews and that the “directives” of the respondent in the matter of appointments could only be given effect to after relaxation of the rules as a special case. This clearly showed that merit and open competition had to be sacrificed and bulldozed if the wishes of the respondent were to be accommodated. 14. The note of the Chairman, Oil & Gas Development Corporation submitted before the respondent on 16.10.1996 said it all when it was pointed out by the Chairman to the respondent in black and white that “It may be added that existing work force in the OGDC is considerably in excess of its requirements and a severe burden on its budget.” This had again established beyond any doubt that the requirement of making the appointments in issue was not that of the Oil & Gas Development Corporation but the requirement was that of the respondent and that too not for advancing the interests of the Oil & Gas Development Corporation but to please some parliamentarians who had been pestering the respondent in that regard for some time in the past. 15. As if this were not enough, the record shows that the Chairman, Oil & Gas Development Corporation had put up his above mentioned note before the respondent on 16.10.1996 clearly and unmincingly informing the respondent that the Oil & Gas Development Corporation did not need any new employee but on the same date, i.e. 16.10.1996 the respondent relaxed the rules, 20 Criminal Appeal No. 264 of 2006 the relevant file traveled back to the Chairman and on that very date letters of appointment were issued in favour of all the 145 candidates who had already been approved by the respondent. That still was not enough because the record confirms that the letters of appointment were sent on the same date, i.e. 16.10.1996 not on the addresses of the appointed candidates but were sent to the Principal Staff Officer of the respondent himself who was to deliver those letters of appointment to the respective parliamentarians who had recommended the relevant candidates! Another startling factor evident from the record is that for facilitating the appointment of the pre-approved candidates the respondent had approved relaxation of some rules without anybody ever identifying the relevant rules being relaxed and such relaxation of rules had been approved by the respondent as a special case without ever recording what was the basis or need for treating the matter as a special case. 16. The shocking state of affairs detailed above has left us in no doubt whatsoever that the case in hand was not a case of a mere irregularity in appointments but was a case of the respondent willfully bulldozing the regular procedure, forcing his will upon another vested with jurisdiction, approving/making appointments against the interests and requirements of the relevant institution and appeasing his political friends at the cost of overburdening the workforce and the budget of the institution he was meant to serve and protect. We have, thus, been surprised to find that the Lahore High Court, Lahore had concluded that there was no criminal intent on the part of the respondent and that the travesty of fairness and trashing of due process on the part of the respondent was merely an irregularity which did not constitute any criminal offence. We have examined all the considerations weighing with the High Court for reaching that conclusion and have found those considerations to be hardly commending themselves for approval. The High Court had observed that the respondent had not issued any direction for the relevant appointments; the respondent had the power to relax the relevant rules and precedents were available 21 Criminal Appeal No. 264 of 2006 in that regard; the proposal regarding the relevant appointments had been endorsed by the Chairman, Oil & Gas Development Corporation who was the Competent Authority in the matter of the relevant appointments; the appointments approved by the respondent were merely temporary appointments and the Regulations of the Oil & Gas Development Corporation did not apply to such temporary appointments; the said Regulations even otherwise failed to receive final approval and, thus, any violation of such Regulations could not be considered against the respondent; no prosecution witness had alleged any violation of any Regulation or Rule by the respondent; out of the 145 appointments approved by the respondent only three of the appointees had joined the service till the respondent was a Minister; all the appointees were still in service and they had not been thrown out of the jobs and, therefore, the respondent could not be penalized for approving their appointments; the respondent had issued guidelines qua merits on all Pakistan basis and, thus, he could not be said to have acted in any manner which was discriminatory; the respondent had been given to understand that he could relax the relevant rules before approving the relevant appointments; prior to the present appointments hundreds of other appointments had already been made by the Chairman, Oil & Gas Development Corporation upon the directives of the Prime Minister’s Secretariat but no Reference had been filed against the Chairman vis-à-vis such appointments; and no loss had been suffered by the Oil & Gas Development Corporation on the basis of the appointments approved by the respondent. We note that in the above mentioned context the High Court had failed to appreciate that if the respondent had the power to relax the rules then he had relaxed them in his personal interest to please his political friends and not in the interest of the relevant institution. If the respondent had not issued any direction of his own qua the appointments in question then there is nothing available on the record to explain why he had forced his will upon the manifestly reluctant Chairman, Oil & Gas Development Corporation in the matter of such appointments. If the respondent had required the selection on merits and on all 22 Criminal Appeal No. 264 of 2006 Pakistan basis then there was no explanation available for handing over a pre-approved list of candidates to the Chairman, Oil & Gas Development Corporation for making the appointments which was nothing but discriminatory. If the appointments made were to be temporary in nature then the letters of appointment would not have mentioned a period of probation which is relevant to a permanent appointment. If the relevant appointments were made on a temporary basis then the argument that the appointed persons were still in service and had not been thrown out of service despite passage of a decade had lost its relevance. There might have been some instances in the past where rules had been relaxed for making some appointments in the Oil & Gas Development Corporation but nothing had been brought on the record of the case to show that in those cases as well the Chairman, Oil & Gas Development Corporation had resisted the move on the ground that no new appointment was required and also that those appointments too were made only to meet the “essential requirements” of the parliamentarians and not the requirements of the Oil & Gas Development Corporation. No parallels had been established in that regard and, thus, the reference to some past instances was clearly inapt. 17. Applying the principles deducible from the above mentioned precedent cases to the case in hand we find that the prosecution had indeed succeeded in establishing a reasonable case of misuse of authority against the respondent under section 9(a)(vi) of the National Accountability Ordinance, 1999 and the respondent had surely failed to rebut the presumption contemplated by section 14(d) of that Ordinance. The evidence produced by the prosecution had proved beyond doubt on the basis of un-rebutted documentary evidence that, as already noticed by us above, the initiative for making the relevant appointments had been taken by the office of the respondent and not by the office of the Chairman, Oil & Gas Development Corporation; there was a tremendous pressure upon the respondent from the parliamentarians for making the appointments; the pressure from the parliamentarians was to cater 23 Criminal Appeal No. 264 of 2006 for “their” essential requirements of recruitment in the Oil & Gas Development Corporation; the respondent had been resisting that pressure for some time in the past; a list of applicants had been prepared by the respondent’s office which list was based upon recommendations of the parliamentarians; the respondent had gone through the prepared list and had already approved it; the Chairman, Oil & Gas Development Corporation was to be “requested” to issue the letters of appointment; no selection process or consideration of qualifications or merit was involved before issuance of the letters of appointment; the respondent was motivated only to please the parliamentarians rather than looking after the interests of the Oil & Gas Development Corporation; merit and open competition had been sacrificed and bulldozed for accommodating the wishes of the respondent; the requirement of making the appointments in issue was not that of the Oil & Gas Development Corporation but the requirement was that of the respondent and that too not for advancing the interests of the Oil & Gas Development Corporation but for pleasing some parliamentarians who had been pestering the respondent in that regard for some time in the past; after submission of the note of resistance by the Chairman, Oil & Gas Development Corporation on 16.10.1996 the respondent relaxed the rules, the relevant file traveled back to the Chairman and letters of appointment were issued in favour of all the 145 candidates on that very day, i.e. 16.10.1996; the letters of appointment were sent on the same date, i.e. 16.10.1996 not on the addresses of the appointed candidates but were sent to the Principal Staff Officer of the respondent himself who was to deliver those letters of appointment to the respective parliamentarians who had recommended the relevant candidates; for facilitating the appointment of the pre-approved candidates the respondent had approved relaxation of some rules without anybody ever identifying the relevant rules being relaxed; and such relaxation of rules had been approved by the respondent as a special case without ever recording what was the basis or need for treating the matter as a special case. All this was proved by the prosecution through official record and the respondent had 24 Criminal Appeal No. 264 of 2006 remained contented with a bald assertion of his bona fide. In our considered opinion the case in hand was not a case of a mere procedural irregularity on the part of the respondent but was a clear case of misuse of authority by the respondent, a case of a wrong and improper exercise of authority for a purpose not intended by the law, a case of a person in authority acting in disregard of the law with the conscious knowledge that his act was without the authority of law, a case where there was a conscious misuse of authority for an illegal gain or an undue benefit and a case where the authority was exercised with intent to obtain or give some advantage inconsistent with the law. In keeping with the principles laid down by this Court in the above mentioned precedent cases we have entertained no manner of doubt that the case in hand was an open and shut case of misuse of authority where the respondent had used his authority in a manner contrary to the law knowing that he had no authority to act in the manner he acted. If the initiative for making the appointments in issue had come from the Chairman, Oil & Gas Development Corporation as a requirement for proper functioning of that Corporation then there might have been some substance in the respondent’s assertion of his bona fide but in the present case it is written large on the record that it was the respondent who maneuvered the relevant appointments and that too against the resistance of the Chairman, Oil & Gas Development Corporation and against the interests of that Corporation and with the sole object of pleasing his political friends in the Parliament. To us such exercise of authority by the respondent was nothing short of willful and deliberate circumvention of the legal intent and process amounting to abuse and misuse of authority establishing his mens rea, guilty mind and criminal intent for the purposes of the provisions of section 9(a)(vi) read with section 14(d) of the National Accountability Ordinance, 1999. 18. It may be pertinent and relevant to mention here that the respondent is a highly educated person having earned his Master’s degrees from the University of Peshawar, the University of Oxford 25 Criminal Appeal No. 264 of 2006 and the University of Southern California, he has held the highest bureaucratic positions in the civil service of the country, he and his family have been in politics for a long time, even prior to his relevant stint as a Federal Minister he had remained a member of the National Assembly and of the Senate besides serving as a Federal Minister and before approving/making the appointments in issue he had seen many of his comrades in politics facing criminal charges pertaining to misuse of authority brought against them by the National Accountability Bureau or its predecessor institutions. It was, therefore, quite naïve on the part of the respondent to maintain that what he did in this case was not criminally culpable or that he had no criminal intent in the matter. A deliberate and willful act which fairly and squarely attracts the definition and fulfils all the constituting ingredients of a criminal offence and which is accompanied by the knowledge that others acting in a similar manner have faced criminal charges in the past surely makes the act criminally liable and it cannot be argued with any degree of seriousness that such act had been committed with an intent which was licit or bona fide. Apart from that it is proverbial that ignorance of law is no excuse. In the circumstances of the case discussed above we have entertained no doubt at all that criminal intent on the part of the respondent stood amply established and his actus reus was duly accompanied by the requisite mens rea so as to constitute the relevant offence. 19. It may be true that this Court is generally slow in interfering with a judgment of acquittal passed by a court below but at the same time it is equally true that where acquittal of an accused person by a court below had come about on the basis of considerations which do not commend themselves for approval on the legal plane there such judgment of acquittal cannot be sustained and this is more so where the record of the case had not even been read by the court below correctly or properly. In the present case the crucial record of the case mentioned in paragraph No. 11 above had not been adverted to by the High Court with the care and attention it deserved and, thus, the vision of the High 26 Criminal Appeal No. 264 of 2006 Court remained blurred in respect of criminal intent of the respondent. 20. Doling out jobs in the public sector on the basis of corruption, nepotism, favouritism, lack of due process and misuse of authority has remained a bane of our society for some time and on many previous occasions this Court has been emphasizing the importance of transparency, merit and open competition in that respect. In the case of In re: Abdul Jabbar Memon and others (1996 SCMR 1349) the issue was of recruitment to public posts and offices without proper publicity or advertisement and on 06.03.1993 this Court had passed the following order: “The matter has come up for consideration in the presence of the Deputy Attorneys-General, Provincial Law Officers arid Mr. Anwar Kamal, Advocate/counsel for PIA. The interim order proposed to be made is hereby confirmed and the case adjourned to enable the Provincial Governments, the Federal Government and the counsel for PIA to seek appropriate instructions from their respective Governments/Departments and to ensure compliance with the order. The interim order is reproduced hereunder in extenso:-- "While inquiring into various complaints of violation of Fundamental/Human Rights, it has been found that the Federal Government, Provincial Governments, Statutory Bodies and the Public Authorities have been making initial recruitments, both ad hoc and regular, to posts and offices without publicly and properly advertising the vacancies and at times by converting ad hoc appointments into regular appointments. This practice is prima facie violative of Fundamental Right (Article 18 of the Constitution) guaranteeing to every citizen freedom of profession. Subject to notice to all concerned, and subject to final orders after full hearing in the matter, it is ordered as an interim measure that the violation of this Fundamental/Human Right shall be discontinued forthwith. Steps shall immediately be taken to rectify, so as to bring the practice in accord with the Constitutional requirement.” 21. In the case of Mushtaq Ahmad Mohal v. The Honourable Lahore High Court, Lahore and others (1997 SCMR 1043) this Court had the following to observe on the subject: 27 Criminal Appeal No. 264 of 2006 “16. ------- It may be observed that even otherwise, the Constitutional requirement, inter alia, enshrined in Article 18 of the Constitution which enjoins that "Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business" includes the right of a citizen to compete and participate for appointment to a post in any Federal or a Provincial Government department or an attached department or autonomous bodies/corporations etc. on the basis of open competition, which right he cannot exercise unless the process of appointment is transparent, fair, just and free from any complaint as to its transparency and fairness. The above objective enshrined in our Constitution cannot be achieved unless due publicity is made through public notice for inviting applications with the aid of the leading newspapers having wide circulation. It may be pointed out that the above question came up for consideration before this Court In re: Abdul Jabbar Memon and others 1996 SCMR 1349), wherein it concluded as under:-- --------------------- 17. We reiterate that the appointments to various posts by the Federal Government, Provincial Governments, Statutory Bodies and other Public Authorities, either initial or ad hoc or regular, without inviting applications from the public through the press, is violative of Article 18 read with Article 2A of the Constitution, which has incorporated the Preamble to the Constitution as part of the same and which inter alia enjoins equality of opportunity and guarantees for creation of an egalitarian society through a new order, which objective cannot be achieved unless every citizen equally placed or situated is treated alike and is provided equal opportunity to compete inter alia for the posts in aforesaid Government set-ups/institutions.” 22. Selection of a candidate for appointment to a public post on the basis of “political dictation” came under discussion in the case of Government of N.-W.F.P. through Secretary, Forest Department, Peshawar and others v. Muhammad Tufail Khan (PLD 2004 SC 313) and this Court observed in that case as under: “5. ------- It is also reflected from the documents and the same is not denied that the selection of the respondent was made simply on political dictation. Neither any advertisement was made to fill these vacancies nor any interview was held. The codal formalities for the appointments of these posts were flagrantly violated. Such-like entries in the civil service cannot be countenanced as it generate frustration and despondency among all persons who were having excellent merit but every time they are bypassed through suchlike back door entries on political interference. Everybody who matters in the functioning of the society has always propagated for the adoption of transparency and merit in appointments, which are cardinal principles of good governance. The Constitution of Islamic Republic of Pakistan has also mandated the same as is reflected from the Article 18 which is in the following terms:-- 28 Criminal Appeal No. 264 of 2006 "18. Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business." 6. However, when it comes to actual practice, these principles are blatantly ignored. The Courts are duty bound to uphold the Constitutional mandate and to keep up the salutary principle of rule of law. In order to uphold these principles it has been stated time and again by the superior Courts that all the appointments are to be made after due publicity in a transparent manner after inviting applications, through Press from all those who are eligible, deserving and desirous. Reference in this regard is made to Abdul Jabbar Memon (1996 SCMR 1349) where the learned Judges in a Human Rights case, directed the Federal Government, Provincial Governments, Statutory Bodies and the Public Authorities to avoid violation of fundamental rights (Article 18 of the Constitution) guaranteeing to every citizen's freedom of profession. This view was reiterated by a Bench of five learned Judges in a case reported in Munawar Khan v. Niaz Muhammad (1993 SCMR 1287) where it was observed as under:-- "6. What we have noticed in all these cases which are under consideration before us is that appointments of both the parties contesting the appointments were made without such advertisements, publicity or information in the locality from which the recruitments were to be made. In view of the Constitutional requirement and the interim order already passed in Human Right Case 104 of 1992 it is expected that in future all appointments shall be made after due publicity in the area from which the recruitment had to take place. This will, however, not apply to short-term leave vacancies or to contingent employment." Again in another case, reported in Mushtaq Ahmed Mohal v. Honourbale Lahore High Court (1997 SCMR 1043), a Bench of five learned Judges reiterated this view after quoting in extenso the order passed in the aforementioned case titled as Abdul Jabbar Memon (1996 SCMR 1349) stated as under:-- --------------------- Reference in this regard is also made to the case of Obaidullah v. Habibullah (PLD 1997 SC 835) where the learned Judges again reiterated the afore-quoted paragraph. Reference is also made to the case of Abdur Rashid v. Riazuddin (1995 SCMR 999). 7. However, in spite of all these directions, this salutary principle is being frustrated with impunity. This malady which has plagued the whole society shall be arrested with iron hands and the principle of merits shall be safeguarded, otherwise, it would be too late to be corrected. In the case in hand admittedly the appointment was made clearly in violation of the codal formalities simply on the dictation of a political figure.” 23. The case of Tariq Aziz-ud-Din and others: in re (2010 SCMR 1301) was a case of discrimination in promotion of senior civil servants and this Court had observed in that case as follows: 29 Criminal Appeal No. 264 of 2006 “34. Before parting with the judgment, we may observe that good governance is largely dependent upon the upright, honest and strong bureaucracy particularly in written Constitution wherein important role of implementation has been assigned to the bureaucracy, Civil service is the back bone of our administration. The purity of administration to a large extent depends upon the purity of the services. Such purity can be obtained only if the promotions are made on merit in accordance with law and Constitution, without favouritism or nepotism. It is a time tested, recognized fact that institution is destroyed if promotions/appointments are made in violation of law. It will, in the ultimate result, paralyze automatically. The manner in which the instant promotions in the Civil Services have been made, may tend to adversely affect the existence of this organ. Honesty, efficiency and incorruptibility are the sterling qualities in all fields of life including the Administration and Services. These criteria ought to have been followed in the instant case. Fifty-four persons were promoted in complete disregard of the law causing anger, anguish, acrimony, dissatisfaction and diffidence in ranks of services which is likely to destroy the service structure. ------- According to Article 4 of the Constitution the word "law" is of wider import and in itself mandatorily cast the duty upon every public functionary to act in the matter justly, fairly and without arbitrariness.” 24. Appointment of a Chairman of the Oil and Gas Regulatory Authority (OGRA) came under scrutiny of this Court in the case of Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others (PLD 2012 SC 132) and the Court observed in that case as under: “28. The Executive's ability to make appointments to key positions of authority, and to dispense with the incumbents therein, needs to be examined in historical context as this will facilitate our understanding of the constitutional principle of separation of powers and the importance of judicial review in ensuring adherence to such separation. On account of our colonial legacy and its attendant pattern of governance, this examination takes us back to the pre-independence dispensation and to the British constitutional scheme. That was a time when almost all important State functionaries including not just the Prime Minister and the Cabinet but also judges and civil servants, were appointed and removed by the British monarch in his absolute unfettered discretion. It is for this reason they were said to "hold office during the King's pleasure". While this vestige of an absolute monarchy receded in Britain on account of emerging democratic conventions, in the colonies it survived. Even after several years of independence, this practice continued, as was manifested by the imperious dissolution of the Constituent Assembly in 1954, by the representative of the British Crown. 29. Much has changed since then. Pakistan now has a democratic Constitution which provides for the government of laws and not of men. It is for this reason that in our 30 Criminal Appeal No. 264 of 2006 Constitution there remain few positions where the incumbents "hold office during the pleasure" of someone else based on broad discretion. In its undiluted form this convention exists only in Article 100(2), Article 101(3) and Article 140(3) which relate to the appointments of a Governor, the Attorney General and the Advocates General respectively. Similarly, such discretionary powers do not exist in those statutes which relate to autonomous regulatory bodies like OGRA. 30. It is to be noted that even where appointments are to be made in the exercise of discretionary powers, it has become well settled that such powers are to be employed in a reasonable manner and the exercise of such powers can be judicially reviewed. In the Corruption of Hajj Arrangements' case (Suo Moto Case No. 24 of 2010) and in the case of Tariq Aziz-ud-Din (2010 SCMR 1301), it has been held that appointing authorities "cannot be allowed to exercise discretion at their whims, sweet will or in an arbitrary manner; rather, they are bound to act fairly, evenly and justly". There is an obligation thus imposed on the Executive to make appointments based on a process which is manifestly and demonstrably fair even if the law may not expressly impose such duty. In the Hajj corruption case supra, the Court has again clarified this point saying that "[b]y now, the parameters of the Court's power of judicial review of administrative or executive action or decision and the grounds on which the Court can interfere with the same are well settled. Indisputably, if the action or decision . . . has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matters, the Court would be justified in interfering with the same". 31. Much before these declarations by legislatures and courts, we find exhortations to this effect in the common sense insights to be found in diverse systems and eras in history. We thus have in the classical texts of the Greek ancients, and the writings of those such as Sheikh Saadi, wherein the deleterious consequences of nepotism and cronyism in administrative appointments have been highlighted. Amongst other sources, one finds reference to this in the "Qaboos Namah", a book that Ameer Unsur Ma’ ali Kaikaus wrote in the 11th century A.D. for the instruction of princes, including his son Gilan Shah, in the art of good governance. The Ameer cautioned that when "appointing officers to responsible positions, act carefully and grant positions only to those who are qualified for the duties entailed in that job; and also, beware that when an ignoramus who is not up to the assigned task gets appointed, he will never frankly concede his lack of ability to you; instead, to hide his lack of worth, he will boldly embark upon task after task, and make a mess of it all". [Kaikaus, The Book of Qaboos, page 206-7; Tehran (1963)]. And in a similar vein, warning against the hazards of turning public offices into sinecures, he advises that "if at all you wish to bestow favours upon someone, give him valuable gifts; do not, however, confer on him a high office for which he does not possess the requisite competence". [Kaikaus, The Book of Qaboos, page 207; Tehran (1963)]. We also find mention of some very pertinent principles in this regard in Nizamul Mulk Toosi's "Siyasat Namah", also written in the 11th century, which displays an uncanny cognizance of the evils of nepotism which seem eternally to haunt the corridors of high power even in this day and age. He emphasizes that "the ruler should make sure that he does not award public office to his cronies (merely on the basis of their friendship with him) . . . for such arrangements can give rise to 31 Criminal Appeal No. 264 of 2006 many an evil". [Toosi, The Book of Government, p. 120; Tehran (1994)] The modern day discourse on good governance, whether in the law or in Courts, is only an expression of these universal principles. 32. In the present case involving the respondent's appointment as Chairman OGRA, the law has travelled a great distance from the times of an absolute monarch or the time when the people of Pakistan were subject to colonial rule. Instead, it has come closer to the ethos of responsible governance, which was envisioned in the sage and ever-lasting wisdom adverted to above. Thus, we now have the express stipulation in the Ordinance which requires, firstly, that OGRA "shall be independent in the performance of its functions" and that "the Chairman shall be an eminent professional of known integrity and competence . . . ". These provisions in the Ordinance expressly limit the authority of the political executive or the government of the day, thereby ensuring that the crucial position of Chairman, OGRA, does not end up becoming a cushy sinecure and an anti-people drain on public resources, for want of competence, integrity or efficient regulation. --------------------- 36. To test the validity of the appointment process in this case, it would be useful to adopt a test based on the following considerations: (a) whether an objective selection procedure was prescribed; (b) if such a selection procedure was made, did it have a reasonable nexus with the object of the whole exercise, i.e. selection of the sort of candidate envisaged in section 3 of the Ordinance; (c) if such a reasonable selection procedure was indeed prescribed, was it adopted and followed with rigour, objectivity, transparency and due diligence to ensure obedience to the law. --------------------- 55. The detailed discussion above has highlighted the seriously flawed nature of the selection process and the manner in which it was undertaken. Also, we have touched upon the allegations of wrong doing in the preceding paragraph, for the purpose of the Orders in paragraph 57 below. CONCLUSIONS 56. Based on the foregoing discussion, it is clear that in order to enforce the fundamental rights of the People of Pakistan, it is essential that good governance in OGRA is ensured. To achieve this objective it is crucial that 'highly qualified' persons of 'known competence and integrity' are appointed as Chairman and Members of OGRA. This can only happen if the highest and most exacting standards of diligence, transparency and probity are employed in the selection of these persons. This quite obviously has not been done. We are clear, therefore, that the selection process seriously and irretrievably undermined merit. It is such actions which potentially result in direct harm to the people of Pakistan and also contribute towards heart-burn and disillusionment amongst genuine and competent aspirants for public office. The direct impact of ignoring merit and the eligibility criteria prescribed by the 32 Criminal Appeal No. 264 of 2006 Ordinance also has the potential of causing harshly adverse consequences including unjustified inflation in retail prices for consumers, thus depriving the people of Pakistan of their incomes, assets, quality of life and dignity. Among many other harmful consequences thrown up by cases such as the present one, is the unnecessary clogging of Court dockets thus reducing the Court resources available for resolution of other cases. It is clear this case would not have arisen if the selection process had been designed and implemented to ensure fulfillment of the requirements of the Ordinance. Civil servants and other holders of public office have to remain conscious that in terms of the Constitution "it is the will of the People of Pakistan" which has established the Constitutional Order under which they hold office. As such they are, first and foremost fiduciaries and trustees for the People of Pakistan. And, when performing the functions of their Office, they can have no interest other than the interests of the honourable People of Pakistan in whose name they hold office and from whose pockets they draw their salaries and perquisites.” 25. In the case of Muhammad Ashraf Tiwana and others v. Pakistan and others (2013 SCMR 1159) the matter in issue was selection and appointment of a person as the Commissioner and Chairman of the Securities and Exchange Commission of Pakistan in terms of the requirements of the Securities and Exchange Commission of Pakistan Act 1997. This Court had the following to observe in that case: “20. The second challenge made by the petitioner to the appointments of Commissioners and Chairman SECP is far more weighty. It has by now become well settled that Courts will look into the process of appointments to public office. It is the process which can be judicially reviewed to ensure that the requirements of law have been met. In the case of Muhammad Yasin supra, the process of appointment to public office has been made the subject of judicial review to ensure adherence to the command of the law. This is also a requirement of good governance and has been a subject of comment from ancient times. Abu al-Hassan al- Mawardi (d. 1058 A.D), the famous scholar from Baghdad devoted a substantial portion of his 11th century treatise on constitutional law, the al-Ahkam al Sultaniyyah, to the qualifications for holding public office. These are universal principles of good governance and are reflected in sections 5 and 6 of the Act which lay down stringent criteria for the kind of person the Federal Government may appoint as Commissioner/Chairman SECP. Section 5(1) of the Act specifies that a Commissioner "shall be a person who is known for his integrity, expertise, experience and eminence in any relevant field, including the securities market, law, accountancy, economics, finance, insurance and industry." Under the law, the federal Government has the authority to appoint the Chairman and Commissioners of SECP. The Federal Government, however, has no absolute and unbridled powers in this behalf. It is constrained by the aforesaid requirements of the Act. We have come a long way from the days of the whimsicality of Kings and Caesers, such as Caligula who could conceive of appointing his horse Incitatus 33 Criminal Appeal No. 264 of 2006 as Consul of Rome. The element of subjectivity and discretion of the Government has been severely limited by the legal requirement that an appointee must be a person having integrity expertise, eminence etc. This requirement imposes a duty on the Federal Government to put in place a process which ensures that the requirements of the law are met. 21. ------- It is obvious that if the requirements of section 5(1) are to be adhered to, there has to be a process which ensures that the widest possible pool of qualified candidates is available to the Federal Government. From this pool, through a transparent selection process, appointments can be made. In our judgment in the case of Muhammad Yasin supra, we had set out a three pronged test for appointments to public office: "(a) whether an objective selection procedure was prescribed; (b) if such a selection procedure was made, did it have a reasonable nexus with the object of the whole exercise, i.e. selection of the sort of candidate envisaged in [the law]; (c) if such a reasonable selection procedure was indeed prescribed, was it adopted and followed with rigour, objectivity, transparency and due diligence to ensure obedience to the law." ------- 22. We asked learned counsel for the Federation to show us the process through which the name of respondent No. 4 came up for consideration before the Federal Government. We had sought relevant information vide our order dated 13-9-2011 but this was not complied with. In our order dated 13-6-2012 our direction was expressly repeated. In response, the petitioner filed C.M.A. 2955 of 2012 on 5-7-2012, which provided only a fraction of the requisite departmental record. Therefore, on 13-9-2012, we reiterated our order, but to no effect. Ultimately, on 8-11-2012, the petitioner filed a contempt petition to enforce our orders seeking the relevant record. It was only after this extreme step that the Federation finally submitted some official record and documents in Court through C.M.A. 1342 of 2013 on 13-3-2013 and C.M.A. 1562 of 2013 on 26-3-2013 filed during the course of the hearing. In C.M.A. 1342 of 2013, it was also repeated that the appointment of the respondent was in line with previous practice. However, it was, for the first time added that the then Finance Secretary and Finance Minister had a meeting with respondent No. 4 and "after due consideration his name was recommended for appointment to the Prime Minister of Pakistan". We find this assertion in para 4 of C.M.A. 1562 of 2013 to be wholly unsubstantiated by any material on record. It appears to be false and misleading. The concise statement filed on behalf of the Federation on 25-10-2011 does not make any such averment. C.M.A. 2955 of 2012 filed on 5-7-2012, also did not make any mention of the Finance Minister and Finance Secretary's meeting with respondent No. 4 nor is there any official noting to this effect. We, therefore, find it strange that C.M.A. No.1562 of 2013 which was filed on 26-3-2013 for the first time mentioned any process at all. The averment aforesaid is also belied by the noting on official files which preceded the appointment of respondent No. 4 as Chairman, SECP, and which has been brought on the record through C.M.A. 2955 of 2012, C.M.A. 1342 of 2013 and C.M.A. 1562 of 2013. We may reiterate, based on the record which was provided by the Federal Government after much foot-dragging spanning more than one year, that no process, let alone a credible, fair and transparent one was adopted by the Government. We may add that, rather than recognizing the potential conflict between SECP and respondent No. 4, a common Concise Statement was filed by them. It was only at a subsequent stage that respondent No. 4 instructed separate counsel. Importantly, neither in the Concise Statement nor 34 Criminal Appeal No. 264 of 2006 during the prolonged hearing of the case was any mention made, of any meetings or interview of respondent No. 4 with the Minister or Finance Secretary. --------------------- 28. Furthermore, in view of the requirements of section 5, there is a need to devise a proper mechanism for targeting and attracting a pool of qualified potential appointees. Randomly entertaining CVs, with or without the backing of political patrons, or seeking nominations from arbitrarily selected consultees do not meet this requirement. The requirement can be achieved through a number of different means, be it by open advertisement, or through the auspices of talent scouts who have the needed expertise and who ensure confidentiality to applicants or through any other sufficiently transparent and inclusive process. The details of the mechanism are not our concern at present; these may be worked out by the Federal Government and recorded in the report which we have sought from the Government. What is clear, however, is that the process that went into the impugned appointment clearly does not meet the requirement of the law and the appointment has, therefore, been set aside and struck down. 29. ------- What is missing is due diligence or a fair and demonstrably transparent selection process. In the notings on official files, as observed above, a wholly haphazard and un- structured culture of contacts, recommendations or sifarish appears to have pervaded the corridors of Government in the matter of appointment of Commissioners. In this respect some names as noted above, were floated by random individuals such as the Secretary Finance and the Governor Punjab based on no apparent process and based on no apparent reason. When this glaring omission was pointed out to learned counsel representing the Federation and it was mentioned that individuals, political or otherwise, even when well intentioned, could not be treated as arbiters of integrity, expertise, experience and eminence of recommendees, learned counsel was unable to give any satisfactory response. He merely repeated his submission that the respondent's appointment was made as per past practice. 30. It is obvious to us that such lack of process has irretrievably undermined the selection and appointment of the respondent as Chairman. This itself is a serious flaw in the selection and appointment process. The only documents attached to the summaries were self generated CVs of these persons. Once again there is nothing at all on the record and there was no submission made by learned counsel for the respondents which would show that any inquiry let alone due diligence was undertaken to ascertain the correctness or otherwise of the contents of the CVs. So much so, even the most cursory exercise to verify such contents from any source mentioned in the CVs, was not attempted by the Government. In the absence of such due diligence, we are clear that it would be impossible to ascertain objectively the qualifications of recommendees in the Summary as to integrity, expertise, experience and eminence etc. as required by section 5(1) of the Act. --------------------- 65. ------- We wish to add that issues of appointments to senior positions in public bodies, which have been highlighted in this petition and in other cases which have come up before us, have under-scored the need for a transparent, inclusive and 35 Criminal Appeal No. 264 of 2006 demonstrably fair process for the selection of persons to be appointed to such senior positions. The Federal Government may consider the necessity of putting in place independent mechanisms and of framing open, fair and transparent processes so that the objectives for which public bodies are established can be efficiently achieved and at the same time the pernicious culture of arbitrariness, favouritism and nepotism is eliminated. A copy of this reasoning may be sent to the office of the competent appointing authority and the Law Ministry.” 26. The case of Contempt proceedings against Chief Secretary, Sindh and others: In the matter of (2013 SCMR 1752) pertained to illegal or irregular postings, transfers and promotions, etc. in the Sindh Police and this Court had observed in that case as follows: “121. By the impugned legislations 'absorption' of an employee in ex-cadre group would deprive the seniority and progression of career of meritorious civil servants. A substantial number of unfit and unmeritorious officers and beneficiaries have been absorbed in the important groups, services, positions with the help of authorities and such legislations allow this to continue. The absorption, by way of impugned instruments, would practically cause removal of constitutional and legal differentiations that exist between various cadres, posts and services. Moreover, the culture of patronage will intensify the activity of bringing more politicization, inefficiency and corruption in the provincial services. The Civil Servants Act and Rules framed provide transparency in appointments, which would disappear and the employees who could not get in service through competitive process may also be obliged to look for a political mentor instead of relying on merits in order to protect their careers. We may also observe here that the absorption under the aforesaid impugned instruments is not only confined to non-civil servants to civil servants but through these impugned instruments non-civil servants, who were serving on non-cadre posts, have been transferred and absorbed to cadre posts, the pre-requisite of which is competitive process through Public Service Commission or by other mode provided in the relevant recruitment rules. Law of such nature which is violative of the recruitment rules will encourage corruption and bad governance and the public at large will loose confidence in the officials who are being absorbed under the garb of the aforesaid impugned instruments. --------------------- 123. Though the Court interpreted the provisions of Federal Civil Servants Act of 1973 in the aforesaid judgment but the law and the rules prescribed therein are identical to the language of the Act of 1973 with minor exceptions. We therefore, can safely hold that the impugned instruments empowering validation to the absorbees and appointment by transfer (absorption) of non-civil servant to a cadre post in Sindh Government are contrary to the parameters guaranteed by the Constitution under Articles 240 and 242 and absorptions in such manner to extend favours to unmeritorious employees by the Sindh Government. Such absorption has led to the burnt of increasing lawlessness and violence on one hand and on the other hand meritorious officers despite discharging their duties with utmost dedication and 36 Criminal Appeal No. 264 of 2006 professional excellence are affected with a griping sense of insecurity in respect of their future prospects in careers. 124. We have also noticed the absorption of employees from different departments/organizations in the Sindh Police through the impugned legislation and the material placed before us reflects that almost all of them have been absorbed for political considerations. The senior police officers in the rank of D.I.G, SSP, SP, DSP etc., without undergoing the mandatory police training, are posted in field particularly in Karachi, which has resulted in deteriorating law and order situation in Sindh specially in Karachi owing to their lack of competence. This Court in the case of Watan Party and another v. Federation of Pakistan and others (PLD 2011 SC 997) popularly known as "Karachi Law and Order case", has noticed this situation and observed as under:-- "31. It seems that the police primarily being responsible to enforce law and order has no intention to deliver. Either they are scared or they are dishonest or absolutely lack the requisite skills. -------. Another reason appears to be that police force has been highly politicized, recruitments have been made in political consideration. It came to light during hearing of the case that in police force many police officers have been recruited on political considerations who have managed to occupy such posts for extraneous considerations and senior officers in the rank of SSP, SP and DSP etc. have been inducted into the force from other organizations without following any rules and even they have not un dergone training for the purpose of policing. --------------------- 137. The concept of power under our Constitution is distinct from other constitutions of common law countries. Under the Constitution of Pakistan, the sovereignty vests in Allah and it is to be exercised by "the people within the limits prescribed by Him", as a sacred trust. The Authorities in Pakistan while exercising powers must keep in mind that it is not their prerogative but a trust reposed in them by the Almighty Allah and the Constitution. The impugned legislation is promulgated to benefit patent class of persons specific and violative of Article 25 of the Constitution as it is not based on intelligible differentia not relatable to the lawful object. The impugned legislation on deputation is violative of the service structure guaranteed under Articles 240 and 242 of the Constitution which provides mechanism for appointments of Civil Servants and their terms and conditions as envisaged under Act of 1973 and the Rules of 1974 framed thereunder. The object of the Act of 1973 is to maintain transparency in appointments, postings and transfers of Civil Servants, whereas deputationists who otherwise are transferred and appointed by the Sindh Government under the impugned instruments have destroyed the service structure in Sindh and has blocked the promotions of the meritorious civil servants in violation of the fundamental rights guaranteed to them under Articles 4, 8, 9, 25, 240 and 242 of the Constitution, as discussed hereinabove and are liable to be struck down. --------------------- 37 Criminal Appeal No. 264 of 2006 154. Indeed out of turn promotion has become a vehicle of accelerated progression for a large number of favourite officers using various measures and means. A large number of favourite police officers were conferred out of turn promotions under section 9A of the Act of 1973. This Court repeatedly disapproved the culture of patronage creeping in the Sindh police by abuse of authority which has gravely eroded efficiency, morale and image of the police officers. In the recent order of this Court in the case of Suo Motu No.16 of 2011, this Court has observed as under:-- "It is also a hard fact that the police has been politicized by out of turn promotions and inductions from other departments time and again, through lateral entries which has brought unrest amongst the deserving police officers waiting their promotions on merits. The posting and transfers of the police officers also lack merits. The complete service record of a police personnel which could reflect posting and transfer is not maintained by the relevant wing. Even many police officers posted within the Karachi on senior positions lack qualifications and competence both......If this is the state of affairs, how can there be peace in Karachi. It seems instead of depoliticizing police force further damage has been caused by the government by introducing their blue eyed persons in police force through lateral entries and then granting them retrospective seniority and out of turn promotions." 27. Illegal appointments and massive corruption in the Employees Old-Age Benefits Institution were at issue in the case of Syed Mubashir Raza Jaffri and others v. Employees Old-Age Benefit Institutions (EOBI) through President of Board, Board of Trustees and others (2014 SCMR 949) and this Court had observed in that case as under: “22. In the 1st case of Muhammad Yasin (supra) the appointment of Chairman Oil and Gas Regulatory Authority (OGRA) was declared illegal. In the 2nd case of Muhammad Ashraf Tiwana (supra) the appointment of the Chairman Securities and Exchange Commission of Pakistan (SECP) was held to be in contravention to statutory requirements. Both these cases reiterated the principle that appointments made in a statutory body or Corporation under the control of Provincial or Federal Government in an arbitrary and capricious manner cannot be allowed to hold the field. In the 3rd case of Tariq Aziz- ud-Din (supra) this Court underscored the integral link between good governance and a strong and honest bureaucracy. It was stated that this could only come about if appointments made were based on a clear merit criterion, in accordance with the relevant laws and rules as opposed to favouritism and nepotism. In the 4th case of Syed Mahmood Akthar Naqvi (supra) the Supreme Court, examining the issue of political pressure placed on the civil service by the executive, held that the matter was one of public importance as such undue influence by political powers infringed the fundamental rights under Articles 9, 14, 18 and 25 of the Constitution. In the 5th case, which is a more recent judgment of this Court, relating to contempt proceedings against 38 Criminal Appeal No. 264 of 2006 the Chief Secretary Sindh and others (2013 SCMR 1752), wherein, inter alia, vires of certain legislative instruments introduced by the Sindh Government regarding regularization and absorption of civil servants (particularly, in the police department) was under scrutiny/challenge, the Court examined all the relevant aspects of the case in detail and expressed its views about the maintainability of petitions, absorption, deputation, out of turn promotions and re-employment in Government service qua their subsequent validation through some legislative instruments; principle of locus poenitentiae and effect of such legislation attempting to nullify the effect of the judgments of the Superior Courts. In this regard, while striking down these pieces of legislation, being contrary to the spirit of Articles 240 and 242 of the Constitution and various provisions of Sindh Civil Servants Act 1973, it laid down several guiding principles. The principle of law propounded in this judgment, with reference to many other earlier judgments of the apex Court, lend full support to the case of the present petitioners, as regards illegal appointments, contract appointments, absorptions and their regularization etc., particularly, when these acts are motivated to frustrate and nullify some earlier judgments/orders of the Superior Court in a dishonest, colourful and mala fide manner, as discussed in the earlier part of this judgment and hereinafter. All the cases discussed above reveal that the jurisdiction of this Court has been clear and consistent with regard to the manner in which appointments to public offices are to be made strictly in accordance with applicable rules and regulations, without any discrimination and in a transparent manner. Thus, it is essential that all appointments to public institutions must be based on a process that is palpably and tangibly fair and within the parameters of its applicable rules, regulations and bye-laws. But conversely, it is a sad fact of our bureaucracy that it can be so susceptible to the whims and wishes of the ruling elite class etc, which results in an obvious weakening of state institutions such as the EOBI, whereby the general public, whose interest such establishments have been charged with protecting, are adversely and heavily affected in different ways. 24. Having discussed as above, another important aspect of the case, which needs serious consideration is about the fate of the illegal appointees, which is subject matter of consideration in the present proceedings. If we look at this aspect of the case from the angle of those who have succeeded to get appointments in the manner, as discussed above, some of them may claim that since they met the requisite qualifications for the posts and were thus appointed, they cannot be made to suffer due to illegalities committed by the management of EOBI. However, when we place their cases for appointment in juxtaposition to the other applicants, who had applied for these vacancies and are 23648 in number, we find that these candidates having equal right of opportunity as citizens of this country, in terms of Article 25 of the Constitution were thrown out of the competition despite the fact that they also met the requisite qualifications and might have been more meritorious, but could not exert either political pressure or avail the fruits of nepotism and corruption, forming basis for the selection and appointment of other candidates, many of whom had not even applied for the job in terms of the advertisement for these vacancies made in the month of April, 2009, and in this manner they succeeded in getting entry from the backdoor at the cost of many other bona fide candidates, whose applications were literally thrown in the dust bin in an un- ceremonial manner just for the sake of accommodating the blue eyed ones. All these factors, are over and above the violation of 39 Criminal Appeal No. 264 of 2006 rules, regulation and other codal formalities meant for these appointments, inter alia, highlighted by the fact finding committee on recruitment/appointment in its report, which is a serious subject for the reason that it is based on examination of the entire original record of such proceedings of appointments, right from the date of publication of advertisement regarding these vacancies, and till date none has come forward to question the impartiality of the committee or the authenticity and correctness of such report. In these circumstances, in our opinion, if the appointment of any single appointee during this process is protected on one or the other pretext or for any other consideration it will amount to protecting their ill-gotten gains, acquired through unlawful means, and to perpetuate corruption and discrimination under the disguise of sympathetic consideration for such appointees for the sake of their economic well being.” 28. Under the Federal and Provincial Rules of Business a Federal Minister, a Provincial Minister or a member of the Parliament or of a Provincial Assembly has no direct role whatsoever in the matters of appointment, posting, transfer or promotion, etc. of a person in the concerned ministry, division or department. Under the said Rules of Business a Federal Minister, a Provincial Minister or a member of the Parliament or of a Provincial Assembly has no role even in the exercise of executive authority of the relevant ministry, division or department vesting in some officer of such ministry, division or department. Interference of a Minister or a member of the legislature in such matters has repeatedly been declared by different courts of the country, including this Court, to be without lawful authority and of no legal effect. In the case of Administrator, Punjab Dairy and Poultry Development Board and 3 others v. A. G. Afzal (1988 SCMR 1249) this Court had observed that the legality of an order passed by a Provincial Minister reinstating an employee during the pendency of his departmental appeal before the competent authority against termination of his service was questionable. Later on in the case of Ahmad Khan v. Member (Consolidation), Board of Revenue, Punjab, Lahore and others (PLD 1990 SC 1070) a Provincial Minister for Consolidation had passed an order for a fresh consolidation of land which order had been set aside by the Lahore High Court, Lahore and later on in the said matter this Court had held as follows: 40 Criminal Appeal No. 264 of 2006 “The learned Judge in the High Court made the following observations with regard to the validity of the orders/directions issued by the Minister:-- “Under the law Minister for Consolidation has no jurisdiction or authority to pass any order in respect of consolidation scheme already confirmed under the law against which all objections and judicial proceedings in the nature of appeals and revisions had already been exhausted and disposed of. The impugned order of Minister for Consolidation was, therefore, wholly without jurisdiction and void ab initio. Law is firmly settled that if the basic order is without lawful authority, whole series of such orders together with superstructure of rights and obligations built upon them fall to the ground. ------- ” In addition to the aforesaid reasons in the impugned judgment of the High Court we are also of the view that another argument advanced before the High Court from the respondents’ side, was also valid; namely, that “Minister for Consolidation had no authority to interfere with the confirmed consolidation scheme as under the West Pakistan Consolidation of Holdings Ordinance, 1960, the authorities who could act were the Collector, Commissioner and Board of Revenue.” The statutory functionaries alone could have interfered with the orders challenged before them. The Minister not being such a functionary had no jurisdiction to deal with the matter in any manner whatsoever. His action thus for this additional ground was also void ab initio and could not at all be acted upon. Learned counsel for the petitioner faced with the aforestated formidable position, argued that in addition to the order passed by the Minister in this case the Boar of Revenue had also passed independent order; therefore, the said order would cure the defects pointed out above. We do not agree with him. The order of the Minister as already been explained, was coram non judice. It could not at all be cured by any functionary even if he was acting under the law in purported exercise of his own jurisdiction. Because obviously this exercise also got tainted by the original orders passed by the Minister. In this case there is an additional feature; namely, that the learned Member, Board of Revenue did not act according to his own independent judgment and this is further shown in the order of the Member of the Board of Revenue relied upon by the learned counsel. It is clearly stated therein that “under the orders of the Minister of Consolidation Punjab, the Member (Consolidation) Board of Revenue Punjab has been pleased to allow re-consolidation in village Kotli Bhagu, Tehsil Daska, District Sialkot”. The aforegoing supposition is strengthened by further direction issued by the Board of Revenue namely, that the District Authorities were required “to comply with the above orders and submit a report for information of the Minister for Consolidation, Punjab”. This order was passed in 1987. As shown above, not only this but subsequent orders passed in this case for implementation of the Orders of the Board of Revenue, whether by saying so or otherwise, would all be treated as void and nullity.” 41 Criminal Appeal No. 264 of 2006 29. Those cases were followed by the case of Mrs. Aqeela Asghar Ali and others v. Miss Khalida Khatoon Malik and others (PLD 1991 SC 1118) wherein some adverse remarks recorded against a civil servant had been expunged by the competent authority after a successful approach had been made by the concerned civil servant in that regard to the Chief Minister of the Province. This Court had deprecated the said approach through the following observations: “In the first place what is to be noted is that application on which the remarks were expunged was addressed by the appellant/civil servant to the Chief Minister. The Chief Minister does not appear to be a departmental authority for the purposes of entertaining an appeal or representation against the refusal to expunge a remark or to deal with the delays in disposal of such representation. It was a political appeal made by the civil servant. We find that all the contesting civil servants in this case had been recklessly approaching the Chief Minister for the redress of their grievances. This is to be deprecated. It erodes the discipline in service. It makes the examination of the merits of the case influenced, partial and tainted. With such a political appeal the appellant/civil servant in the background, it was incumbent upon the Government of the Punjab to show that the decision of the competent authority was not abridged, tainted or influenced by such outside command.” 30. Then came the case of Munawar Khan v. Niaz Muhammad and 7 others (1993 SCMR 1287) wherein this Court had declared the legal position in the above mentioned regard in the following terms: “Leave to appeal was granted under Article 212(3) of the Constitution in these appeals to examine, inter alia, the following questions of law of public importance arising therein:-- "(a) Whether, Hon'ble Members of the Legislative Assemblies or Ministers act within the powers and jurisdiction to get appointments made to Government offices and posts? (b) Whether, they cannot ‘interfere’ with the rights of civil servants? (c) Whether, they are bound by the procedure prescribed for the appointment of Government servants? (d) Whether, in the context of the present case the public representatives can be deemed to have violated the ‘Law of the land’, through the act/omission of a Government functionary? (e) Was the Tribunal correct in expressing the view that the public representatives are required to perform functions other than what they have done in this case? 42 Criminal Appeal No. 264 of 2006 (f) Whether, their conduct in the present case is an example of unnecessary interference in the affairs of the Government functionaries? --------------------- 8. As regards the allocation of quota of posts to the local M.P.As. or M.N.As. for recruitment to the posts, we find it offensive to the Constitution and the law on the subject. The Ministers, the Members of National and Provincial Assemblies, all are under an oath to discharge their duties in accordance with the Constitution and the law. The service laws designate, in the case of all appointments, a departmental authority competent to make such appointments. His judgment and discretion is to be exercised honestly and objectively in the public interest and cannot be influenced or subordinated to the judgment of anyone else including his superior. In the circumstances, allocation of such quotas to the Ministers/MNAs/MPAs and appointments made thereunder are all illegal ab initio and have to be held so by all Courts, Tribunals and authorities.” 31. The later case of Pir Mazharul Haq and others v. The State through Chief Ehtesab Commissioner, Islamabad (PLD 2005 SC 63) was a case of according of approval by a Provincial Minister to regularization of a plot. This Court had declared in clear terms that “27. It must be noted that a Minister has no legal right whatsoever to make allotment of any plot at his own whims and wishes and the question of any deviation from the prescribed policy does not arise. No Minister has any right to oblige the persons of his own choice at the cost of public exchequer to earn popularity and to increase his vote bank.” 32. Illegal interference of Ministers and legislators, etc. in the exercise of executive authority of the competent authorities in the civil service has also been commented upon and set aside by different High Courts and Tribunals, etc. in many cases and some of such cases are detailed below with a summery of what was held therein: Mahmood Bakhsh, etc. v. Secretary Irrigation, Government of Punjab, Lahore, etc. (1985 Law Notes (Lahore) 1143): A Provincial Minister has no jurisdiction to direct the competent authorities under the Canal and Drainage Act to include a particular area in the Canal Commanded Area. 43 Criminal Appeal No. 264 of 2006 Muhammad Rashid v. Azad Jammu & Kashmir Government through Chief Secretary and 20 others (PLJ 1987 SC (AJK) 57): A Minister’s order regarding grant of lease was void ab initio. Ch. Muhammad Zaman, etc. v. Azad Government of the State of J & K, etc. (NLR 1987 Service 111): Imposition of a penalty by an Advisor to the President was without jurisdiction. Masti Khan v. The State (KLR 1987 Criminal Cases 131): An order passed by a Chief Minister of a Province transferring investigation of a criminal case was without lawful authority. Muhammad Zaman and 8 others v. The Minister for Consolidation and 3 others (PLD 1988 Lahore 416): A Provincial Minister for Consolidation has no jurisdiction to interfere in a consolidation scheme or to order reconsolidation. Abdul Rauf v. Director, Local Government and Rural Development, Sargodha and another (PLJ 1989 Lahore 288): Transfer of an employee at the instance of a Provincial Minister was without jurisdiction. Ashnaghar v. Secretary Education, Government of NWFP, Peshawar, etc. (NLR 1990 TD 245): Dismissal order passed at the direction of an MPA was set aside as without jurisdiction. Muhammad Ayub and 6 others v. Minister for Education, Punjab Province, Lahore and 2 others (1990 PLC (C.S.) 278): Termination of service upon a verbal direction of a Provincial Minister was set aside as without lawful authority. 44 Criminal Appeal No. 264 of 2006 Shagufta Bibi v. Deputy Education Officer (Women). Tehsil and District Sahiwal (1990 PLC (C.S.) 345): An order of transfer of an employee passed in compliance of an order of a Provincial Minister was set aside as without lawful authority. Muhammad Afzal v. District Education Officer (Female), Rahimyar Khan and 2 others (PLJ 1990 Lahore 206): An order of termination from service passed in compliance of a direction of a Provincial Minister was set aside as without lawful authority. Muhammad Asif v. Secretary Government of Punjab, etc. (KLR 1990 Labour and Service Cases 319): In the matter of transfer of an employee a Provincial Minister does not figure anywhere in the rules and administrative instructions. 33. In the case of Abdul Malik and others v. Government of Balochistan through Secretary, Home and Tribal Affairs Department and others (2013 PLC (C.S.) 736) a learned Division Bench of the High Court of Balochistan, Quetta had reiterated the legal position in this respect in very clear terms besides declaring that exerting political influence in such matters is unconstitutional and illegal and warning the pliant, yielding and compliant civil servants against surrendering their jurisdiction and executive authority before the whims and wishes of the political rulers. The matter before the High Court pertained to some appointments made in the Balochistan Levies Force upon a Minister’s directive in relaxation of rules and on ad hoc basis. The relevant portions of the judgment handed down by the Court in that case are reproduced below: “5. We have heard the learned counsel and gone through the documents on record. The second Summary dated June 8, 2012 states that all four gentlemen mentioned therein were appointed on ad hoc basis and in relaxation of rules, "on the directives of Hon'ble Chief Minister Balochistan and Hon'ble Minister for Home". There is no power vesting in either the Home Minister or the Chief Minister to issue a directive for the appointment of Risaldar Majors and the Home Secretary was correct in stating (in the second Summary) that the said ad hoc appointments 'cannot be justified'. Unfortunately, the very same Home Secretary, namely 45 Criminal Appeal No. 264 of 2006 Mr. Naseebullah Khan Bazai, had earlier, himself, moved a summary recommending the appointments to be made on ad hoc basis and in relaxation of rules, probably to please his Minister. He only came to remember the law and the rules when we directed for the production of the record and sought the reason/s for the 'relaxation of rules'. His earlier subservient attitude can be gauged from the fact that the Home Minister wanted Mir Maqbool Ahmed to be appointed as Risaldar Major vide his letter dated January 12, 2012 and on the very same day the Home Secretary moved the Summary recommending his appointment. The indecent haste with which the Home Secretary acted is a sad reflection on his conduct. Sadly, the then Chief Secretary also did not record his objection on the Summary, nor that it was in contravention of the Rules. 6. It is the duty of the bureaucracy to point out if any law, rule or regulation is being violated and not to move a summary which is in clear contravention thereof. The method of appointment of civil servants is attended to by the Act and the Rules. Section 5 of the Act provides: "5. Appointments.--- Appointments to the Balochistan Service or to a civil service of the Province of Balochistan or to a civil post in connection with the affairs of the Province of Balochistan shall be made in the prescribed manner by the Government of Balochistan or by a person authorized by it in that behalf. " The word ‘prescribed’ is defined in section 2(f), as under:--- "prescribed" means prescribed by rules. The Legislature of Balochistan has enabled the Government of Balochistan to enact rules pursuant to subsection (1) of section 25, which is reproduced hereunder:--- "25. Rules.--- (1) The Government or any person authorized by it in this behalf may make such rules as appear to him to be necessary or expedient for carrying out the purposes of the Act." In exercise of the powers vesting in the Government under the above cited provision the Government has made the Rules. The Balochistan Legislature has not granted the Government any power to ‘relax’ any rule. There is also no provision in the Rules enabling the Government to do anything in purported ‘relaxation of rules’. In view of this clear legal position it is not understandable how two senior bureaucrats, one heading a department and the other heading the bureaucracy in the province, acted in purported ‘relaxation of rules’ and wrongly advised the Chief Minister to do so too. 7. In the case of Abdur Rasheed (supra) a chowkidar was appointed on the recommendation of a Member of a Provincial Assembly and the Hon'ble Supreme Court held that, "The appointment made on the recommendation of M.P.A. was held to be void, ab initio and illegal." In the case of Abdul Jabbar Memon (supra) a different bench, presided over by the Chief Justice of Pakistan held as under:--- "While inquiring into various complaints of violation of Fundamental/Human Rights, it has been found that the Federal Government, Provincial 46 Criminal Appeal No. 264 of 2006 Governments, Statutory Bodies and the Public Authorities have been making initial recruitments, both ad hoc and regular, to posts and offices without publicly and properly advertising the vacancies and at times by converting ad hoc appointments into regular appointments. This practice is prima facie violative of Fundamental Right (Article 18 of the Constitution) guaranteeing to every citizen freedom of profession." The following year a bench of five learned judges of the Supreme Court, in the case of Mushtaq Ahmed Mohal v. Hon'ble Lahore High Court, 1997 SCMR 1043, held, as under:--- "17. We reiterate that the appointments to various posts by the Federal Government, Provincial Governments, Statutory Bodies and other Public Authorities, either initial or ad hoc or regular, without inviting applications from the public through the press, is violative of Article 18 read with Article 2A of the Constitution, which has incorporated the Preamble to the Constitution as part of the same and which inter alia enjoins equality of opportunity and guarantees for creation of an egalitarian society through a new order, which objective cannot be achieved unless every citizen equally placed or situated is treated alike and is provided equal opportunity to compete inter alia for the posts in aforesaid government set-ups/institutions." In Muhammad Tufail Khan's case (supra) the Hon'ble Supreme Court reiterated and reproduced the above paragraph, and concluded in the following terms:--- "7. However, in spite of all these directions, this salutary principle is being frustrated with impunity. This malady which has plagued the whole society shall be arrested with iron hands and the principle of merits shall be safeguarded, otherwise, it would be too late to be corrected. In the case in hand admittedly the appointment was made clearly in violation of the codal formalities simply on the dictation of a political figure." 8. The appointment to the post of Risaldar Major in the Balochistan Levies Force is a sensitive appointment. The Levies Force has been established, 'for maintenance of law and order' and designated as an 'essential service'. The Levies officers in their area of jurisdiction have been given the same powers as police officers under the Code of Criminal Procedure. If persons are appointed as levies officers on the personal whims of a Minister or on the basis of sifarish the fundamental rights of those aspiring to such posts are transgressed, including their right to aspire to such posts (Article 18), to be considered equal before the law (sub-article (1) of Article 25) and the guarantee that they will not be discriminated against (sub-article (2) of Article 25). 9. The facts that have come on record in these two petitions disclose that a number of violations were committed in making the said appointments. Firstly, the Rules were relaxed, secondly, the appointments were made on ad hoc basis, thirdly, they were made without placing advertisements by inviting all interested persons and, fourthly, no test was conducted. The appointments 47 Criminal Appeal No. 264 of 2006 contravened the provisions of the Constitution of this country, the Balochistan Civil Servants Act, 1974, the Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 2009 and a number of judgments of the Hon'ble Supreme Court (inter alia as mentioned above). 10. We have noted that far too often rules are purportedly relaxed, which to state the obvious defeats the very purpose of enacting rules in the first place. Rules can only be relaxed if the rules permit their relaxation, and the conditions stipulated for relaxation are strictly met. However, the applicable Rules did not permit that the Rules could be relaxed. 11. The Minister concerned also ought to have abided by the oath that he took at the time he became a Minister, when he solemnly swore that he would not allow his personal interest to influence his official conduct or official decisions, that he would preserve, protect and defend the Constitution of Pakistan and that he would do right to all manner of people according to the law, without fear or favour, affection or ill-will. The protection accorded under Article 248 of the Constitution, amongst others to ministers, only extends to acts done or purported to be done in the exercise of powers and performance of their office. Therefore, if a minister seeks the appointment of a particular individual he would not be able to take shelter behind Article 248. In addition if a minister seeks the appointment of a particular individual he would also be contravening his oath of office. However, as we had not issued notice to the Minister concerned we are not proceeding further in this regard. 12. There, however, is no excuse for the conduct demonstrated by senior bureaucrats in recommending that illegal appointments be made. They ought not to have moved summaries in blatant disregard of the Constitution, the Act, the Rules and the precedents of this court and Hon'ble Supreme Court. If at all the Summary was moved, on the insistence of the Minister, it should have been clearly mentioned that it was done so on the Minister's behest, but that was in contravention of the Constitutional of Pakistan, the Act, the Rules, and the precedents of the Hon'ble Supreme Court. Unfortunately, senior bureaucrats permitted themselves either to be coerced or bullied by the Minister or else did so to ingratiate themselves with him. Bureaucrats need to be reminded that they are servants of the State and not of ministers. They, like everyone else, are bound to abide by the Constitution of Pakistan, the law, rules and judgments of the Hon'ble Supreme Court, and in failing to do so they betray the civil service, and thus the people. The bureaucracy's abject subservience to ministers is destroying the confidence of the people in it. In accommodating the illegitimate and illegal demands of ministers and acting as their handmaidens the bureaucracy reduces its own prestige and betrays the interest of the people, and at times with disastrous consequences. 13. In the districts of Kohlu, Sherani and Khuzdar the law and order situation is far from satisfactory, therefore, extra caution should have been exercised in making the appointments to the posts of senior Levies officers. If persons come to occupy these posts on the basis of sifarish of a minister their loyalty would not be to the State, but to their benefactors, who may call upon them not to proceed against certain criminals and/or involve their opponents in false criminal cases. The consequences then of one illegal appointment are manifold. And if the person recommended is also not qualified or competent, or both, as often the case has been when resort has 48 Criminal Appeal No. 264 of 2006 been made to favoritism, then, even in cases wherein his political benefactor has no interest he may not be able to conduct himself properly, including apprehending criminals and/or properly prosecuting them. Resultantly, the people pay the price. 14. The Constitution of Pakistan contains the Fundamental Rights and it was enacted unanimously in the year 1973, and reflects the will of the entire nation, but is rendered meaningless if, for instance, bureaucrats become tools in the hands of ministers and permit the violation of the Fundamental Rights. Laws, made by the Provincial Legislature, too are mocked if they are observed in the breach. And rules, formulated by the government, commanding the confidence of the majority in the assembly, are derided if bureaucrats or individual ministers flout the same. If a bureaucrat pampers a minister and knowingly flouts the Constitution laws or rules he does so either because he is corrupt or lacks strength of character. He may also apprehend that in case he does not abide by the dictates of a minister he may be moved to an unwelcome post or made an 'officer on special duty' i.e. an officer without a post; however, such an apprehension or fear is no defence or justification and on this altar of fear or apprehension the Constitution, laws and rules must not be sacrificed. Bureaucrats must not, and cannot be permitted to, breach the Constitution, the law and/or the applicable rules. And, when this is done the State is eroded. Another consequence of appeasing a minister's illegal demand renders him into supra-Constitutional being, and is destructive of good governance. Bureaucrats are under a bounden duty to say 'no' when the provisions of the Constitution, any law or rule are sought to be violated; and, if they do not then they must suffer the consequences.” 34. For what has been discussed above it is quite clear to us that in the matter of getting 145 persons appointed to various jobs in the Oil & Gas Development Corporation the respondent had ignored the mandate of Articles 18 and 25 of the Constitution, he had defied the law declared in the above mentioned judgments rendered by this Court and by some other Courts and Tribunals, he had utilized his authority under the relevant law for extraneous considerations and purposes, he had used his position and power against the interests of the relevant Corporation of which he was incharge and he had done all that to dish out undue favours to others by imposing his will upon a hesitant or unwilling competent authority. We have, thus, felt convinced that the charge under section 9(a)(vi) of the National Accountability Ordinance, 1999 stood fully established against the respondent. This appeal is, therefore, allowed, the impugned judgment passed by the Lahore High Court, Lahore on 13.06.2002 is set aside, the judgment passed by the Accountability Court, Lahore on 30.11.2000 and the 49 Criminal Appeal No. 264 of 2006 conviction and sentence of the respondent recorded through that judgment are restored with the modification that the sentence of fine passed against the respondent is remitted as the criminal case in hand is about two decades old, the respondent has already undergone his entire sentence of imprisonment and the period of his disqualifications under section 15 of the National Accountability Ordinance, 1999 has also expired by now. We feel that insisting upon payment of fine by the respondent or sending him behind the bars for non-payment of fine at such a late stage would amount to, in the words of Shakespeare, insisting upon a pound of flesh. This appeal is disposed of in these terms. 35. The office of this Court is directed to send a copy of this judgment to the Chairman, National Accountability Bureau who is directed to bring this judgment to the notice of all the Federal and Provincial Ministers and the Secretaries of all the Federal and Provincial ministries, divisions and departments in the country who may stand warned that through this judgment and the previous judgments of this Court and of the other Courts and Tribunals mentioned in this judgment the legal position on the subject stands sufficiently explained and clarified and if they or their subordinates, in terms of the provisions of section 9(a)(vi) of the National Accountability Ordinance, 1999, misuse their authority so as to gain any benefit or favour for themselves or any other person, or render or attempt to render or willfully fail to exercise their authority to prevent the grant or rendition of any undue benefit or favour which they could have prevented by exercising their authority then, unless the contrary is established in clear terms, criminal intent on their part, for the purposes of the provisions of section 14(d) of the National Accountability Ordinance, 1999, shall from now onwards be more readily inferred than was done by the courts in the past. It must be realized and appreciated by all concerned that Ministers and legislators exerting pressure upon civil servants for political favours in the public sector and a bureaucracy ready to oblige them form a deadly alliance and their unholy collaboration works as a recipe for 50 Criminal Appeal No. 264 of 2006 destruction of merit, weakening of the State structure and promotion of injustice in the society. It is but obvious that a society which allows merit to be sacrificed at the altar of political patronage, which does nothing to prevent weakening of the State structure and which closes its eyes to injustice is doomed to self- destruct. It is, therefore, about time that the National Accountability Bureau and the courts of the country come down heavily upon such predators of a strong, just and decent society. (Asif Saeed Khan Khosa) Judge I agree with my learned brother Asif Saeed Khan Khosa, J. (Iqbal Hameedur Rahman) Judge Most humbly this appeal merits dismissal for reasons given in the appended note. (Umar Ata Bandial) Judge Announced in open Court at Islamabad on 20.01.2016 (Asif Saeed Khan Khosa) Judge Islamabad 20.01.2016 Approved for reporting. 51 Criminal Appeal No. 264 of 2006 Umar Ata Bandial, J. – I have had the honour of reading the majority opinion rendered by my learned brother Asif Saeed Khan Khosa, J. I respectfully agree with the directions issued therein in the matter of commission of offence of misuse of authority under the National Accountability Bureau Ordinance, 1999 (“NAB Ordinance”). However, on appreciation of the evidence available on record and the law applicable to the facts of the present case under the provisions of Article 12 of the Constitution of Islamic Republic of Pakistan, 1973 (“the Constitution”), I consider it lawful and fair to dismiss the instant appeal. 2. The impugned judgment dated 13.06.2002 by the learned Division Bench of the Lahore High Court that has acquitted the respondent after reversing the judgment dated 30.11.2000 of the learned Accountability Court, Lahore that had convicted the respondent for committing the offences under Section 3(1)(d) Ehtesab Ordinance, 1996 (“Ehtesab Ordinance”) read with Section 35 of the NAB Ordinance. Accordingly, the learned Trial Court sentenced the respondent to imprisonment for one year and a fine of Rs.5,000,000/- (Rupees five million) in default of payment whereof he was ordered to undergo further imprisonment for a period of one year. The respondent was granted the benefit of Section 382-B Cr.P.C in serving his sentence and was subjected to disqualification to contest election or hold public office under Section 15 of the NAB Ordinance (for a period of 10 years) as “warranted under Article 12 of the Constitution.” During the pendency of his appeal before the learned High Court the respondent was released on bail after having undergone 16 months of incarceration. 3. The charge on which the respondent was convicted is available in Cr. Misc. Application No.415 of 2006 (“Cr.MA”). It reads as follows: “1. That you while holding public office as Federal Minister for Petroleum and Natural Resources, Incharge Oil and Gas Development Corporation, by misusing your authority, directed the Chairman Oil and Gas Corporation on 16.09.1996 to appoint 145 persons in Oil and 52 Criminal Appeal No. 264 of 2006 Gas Development Corporation in flagrant violation of the Rules and Procedure as laid down in Service Rules of OGDC and subsequently approved their appointment on 16.10.1996 without lawful authority. 2. That 27 persons amongst 145 approved by you joined service while the remaining could not join service due to the ban imposed by the Govt. in November, 1996. 3. That you as a holder of public office misused your authority by way of allowing pecuniary advantage to 27 persons and attempting to allow pecuniary advantage to the remaining 118 persons and thus you committed the offence of corruption and corrupt practices as defined under Section 9(a) (vi) read with the schedule of Offences annexed to the said Ordinance and punishable under Section 10 of the NAB Ordinance No.XVIII of 1999 which is within the cognizance of this Court.” 4. The respondent pleaded not guilty to the said charge and after the recording of prosecution evidence comprising, inter alia, seven witnesses was concluded, he made a statement on oath under Section 340(2) Cr.P.C. apart from recording his statement under Section 342 Cr.P.C. The incriminating evidence in the case is primarily documentary in nature comprising of the undisputed official record. The office noting relevant to the charged offence is Exb.PW-6/1, Exb.PW- 6/9, Exb.PA, Exb.PB, Exb.PB/1 in the record of the learned Trial Court. It is reproduced below in extenso for convenience of reference: “OFFICE OF THE MINISTER FOR PETROLEUM AND NATURAL RESOURCES ___________ Islamabad, Sept. 15, 1996. 1. As Minister is kindly aware that we have been under tremendous pressure from the Parliamentarians to cater for their essential requirements of recruitment in the OGDC. Since Budget Session we have been withstanding this pressure and telling them that their requests for recruitment will be acceded to as soon as the position is eased. We have since prepared a list of applicants based on the recommendations of the parliamentarians. Minister has already been pleased to go through the list and has since approved it. 2. Before the Chairman OGDC is requested to issue appointment letters, Minister may like to see. (signatures) 16/9/96 (R.A. Hashmi) Principal Staff Officer The Minister (signatures) 16/9/96 PSO 53 Criminal Appeal No. 264 of 2006 (signatures) 23/9/96 Chairman OGDC 3. Principal Staff officer to the Federal Minister for Petroleum & Natural Resources has conveyed the approval of the Minister for appointment of 145 applicants in OGDC against various posts. 4. In this respect, it is submitted that appointments in OGDC are made against the advertised post after necessary test and interview. However, in the recent past, a number of appointments have been made on the directives of the Prime Minister’s Secretariat without advertising the post, as a special case. In the instant case if the directives of the Honourable Minister are carried out, approval will be required for relaxation of existing policy and the rules. In such case, the applicants will be appointed on the basis of qualifications and experience and will be given the same designation as offered to the Prime Minister’s Secretariat under Phase- I, Phase-II, Phase-III of appointment and the special cases. 5. Approval may kindly be solicited from the Minister for Petroleum & Natural Resources for appointment of 145 in relaxation to the rules, as a special case. 6. Submitted please. (signatures) 30/9 (AIJAZ MUHAMMAD KHAN) Chief Personal Officer MANAGER (PERSONEL) 7. In view of para 4/N, Para 5/N may kindly be considered. (signatures) 30 Spt 1996 AM(P) CHAIRMAN 8. With reference to para-1 of the note of Principal Staff Officer, the factual position has been briefly explained in para-4. It may be added that existing work force in the OGDC is considerably in excess of its requirements and a severe burden on its budget. However the proposal at Para-5 is submitted for consideration and approval. (signatures) 16.10.96 (M. MUBEEN AHSAN) Chairman OGDC Minister for Petroleum & Natural Resources Approved. (signatures) 16/10/96 Chairman OGDC (signatures) 16/10 AM(Personnel) (signatures) 16 Oct 1996 AM(P) CPO (R)” (emphasis supplied) 5. A glance at the above office noting makes it clear that the respondent desired the appointment of 145 persons in the Oil and Gas 54 Criminal Appeal No. 264 of 2006 Development Corporation (“OGDC”) in order to oblige parliamentarians. These handpicked persons were short listed by the Personal Staff Officer (“PSO”) of the respondent without advertisement or the conduct any test or interview; in other words, without undertaking any selection process. The respondent ignored the Chairman, OGDC’s (PW-3) note that the existing work force in the OGDC was in excess of its requirement and was a severe burden on its budget. This comment indirectly meant that the Chairman OGDC was opposed to further recruitment in OGDC. Having said that, the Chairman OGDC (PW-3) in paragraph-8 of the office note advised the respondent to approve paragraph-5 of the office note. Paragraph-5 of the office note is a request by the Chief Personal Officer (PW-1) soliciting the approval of the respondent for appointment of 145 persons “in relaxation of the rules as a special case.” The respondent obliged and consequently relaxed unspecified rules in order to facilitate the appointment of 145 persons in the OGDC without any selection process, ascertainment of their merit, allegedly against the operational requirement of the ODGC and by imposing additional financial burden on OGDC’s financial resources. 6. The allegation by the learned Deputy Prosecutor General NAB is that relaxation of rules was granted illegally by the respondent for the extraneous purpose of doing political favours, which is contrary to the interim order passed by this Court as early as 06.03.1993 in Re: Abdul Jabbar Memon & others (1996 SCMR 1349) as duly affirmed in Munawar Khan vs. Niaz Muhammad (1993 SCMR 1287) decided on 04.04.1993 and reiterated with clarity and force in Mushtaq Ahmad Mohal vs. Honourable Lahore High Court (1997 SCMR 1043) decided on 31.03.1997. The interim order passed in Abdul Jabbar Memon’s case (1996 SCMR 1349) is reproduced and relied in the two afore- noted subsequent judgments of this Court. This interim order directs as follows: “While inquiring into various complaints of violation of Fundamental Human Rights, it has been found that the Federal Government, Provincial 55 Criminal Appeal No. 264 of 2006 Governments, Statutory Bodies and the Public Authorities have been making initial recruitments, both ad hoc and regular, to posts and offices without publicly and properly advertising the vacancies and at times by converting ad hoc appointments into regular appointments. This practice is prima facie violative of Fundamental Right (Article 18 of the Constitution) guaranteeing to every citizen freedom of profession. Subject to notice to all concerned, and subject to final orders after full hearing in the matter, it is ordered as an interim measure that the violation of this Fundamental/ Human Right shall be discontinued forthwith. Steps shall immediately be taken to rectify, so as to bring the practice in accord with the Constitutional requirement.” (emphasis supplied) 7. The afore-noted interim order invokes Article 18 of the Constitution which guarantees the freedom of profession to every citizen, for directing all Governments, statutory bodies and public authorities to make initial recruitment, both ad-hoc and regular, to posts and offices not of handpicked persons, but of persons selected after ‘publicly and properly’ advertising the vacancies for competition; likewise before converting ad-hoc appointments into regular appointments. This direction has been reinforced subsequently through several elaborate and considered judgments of this Court that are referred in the majority opinion. These are, however, not read presently because they post-date the incriminating facts constituting the offence charged against the respondent. 8. Accordingly, the learned Deputy Prosecutor General NAB has prayed for the setting aside of the impugned judgment of the learned High Court and for the restoration of the respondent’s conviction and sentence in terms of the judgment dated 30.11.2000 delivered by the learned Accountability Court. 9. In response to submissions made on behalf of the appellant, the learned counsel for the respondent has highlighted that the Prime Minister and Cabinet of which the respondent was a member was dismissed by the then President of Pakistan on 05.11.1996 under Article 58(2)(b) of the Constitution. Notwithstanding the fact that ‘offers of appointment’ were issued on 16.10.1996 in favour of 145 persons short listed by the respondent’s office, only 3 persons were given employment before the dismissal of the Federal Cabinet on 56 Criminal Appeal No. 264 of 2006 05.11.1996. These three persons were granted temporary employment as is evident from their separate notifications of joining OGDC (included in Exb.PW- 4/1 to Exb.PW-4/19). The temporary employment of all appointees is confirmed by Ijaz Mohammad Khan, Chief Personnel Officer, OGDC (PW-1), Saeed Ahmad Khokhar, Manager Process & Plans, OGDC (PW-2), Mobeen Ehsan, the Chairman OGDC (PW-3) and Akhtar Hussain, Chief Staff Officer, OGDC (PW- 4). The OGDC Employees (Service) Regulations, 1994 (“Service Regulations”) expressly provide in the Regulation No.1(4) that these Service Regulations do not apply to “a person employed purely on temporary basis or against a Project.” The Explanation to Regulation No.1(3) states that “appointment on temporary or casual basis is not a regular service of the Corporation.” It is claimed therefore that the disputed temporary appointments do not entail the breach of any rules or regulations. Hence, the relaxation of rules sought by the Chairman, ODGC (PW- 3) in his note of 16.10.1996 was false and mala fide. That the Chairman, OGDC had himself without resort to advertisement or any selection process appointed 68 persons on the direction of the Prime Minister Secretariat vide order dated 10.09.1996 (Exb.DW-1/8 available at page 588 of the Cr.MA) and made similar appointments of 385 persons vide order dated 13.11.1995 (Exb.DW-1/9 available at page 578 of the Cr.MA). That as a matter of departmental practice and precedent the respondent supervised the affairs of OGDC. In the present context, he had on 28.09.1994 granted “relaxation of rules for fulfillment of Government’s desire to provide immediate employment opportunity”(Exb.DW-1/2 available at page 408 of the Cr.MA), which was sought by the predecessor of the Chairman, OGDC on 27.09.1994. 10. After dismissal of the Federal Cabinet on 05.11.1996, the OGDC notified the joining report of 24 other appointees vide notifications issued from 06.11.1996 to 01.02.1997 who were named in the list conveyed by the 57 Criminal Appeal No. 264 of 2006 respondent’s office. It is argued that the said appointments were made by the OGDC of its own violation as the respondent was no longer in the office. In the foregoing background, the respondent has been convicted for the commission of the offence under Section 3(1)(d) of the Ehtesab Ordinance which is as follows: “3. Corruption and corrupt practices: (1) A holder of public office or any other person is said to commit the offence of corruption and corrupt practices: … (d) if he, by corrupt, dishonest or illegal means obtains or seeks for himself or for any other person any property, valuable thing, pecuniary advantage or undue favour. …” 11. The Ehtesab Ordinance, 1996 was promulgated as Ordinance No.CXI of 1996 on 18.11.1996. This Ordinance repeals, inter alia, the Holders of Representative Offices (Punishment for Misconduct) Order, 1997 [President’s (Post Proclamation) Order No.16 of 1977] (“PPPO of 1977”) which contained the following corresponding offence in its Section 3(2)(e): “3. Misconduct: (1) … (2) A holder of representative office is said to commit the offence of misconduct --- … (e) if he, by corrupt, dishonest or illegal means obtains for himself or for any other person any valuable thing or pecuniary advantage, or” The afore-referred office noting (Exb.PB/1) shows 16.10.1996 as the date when the respondent approved relaxation of rules and thereby allegedly committed the offence charged. Although the learned Trial Court has convicted the respondent for the offence committed under Section 3(1)(d) of the Ehtesab Ordinance which came into force on 18.11.1996 in my humble view, under the provisions of Article 12 of the Constitution, the applicable law containing the offence constituted by the alleged delinquent acts of the respondent is Section 3(2)(e) of the PPPO of 1977. There is generally a minor difference in the elements of the offences envisaged in the two statutes but in the present context the essential ingredients of these offences are common. These ingredients are, the resort to corrupt or dishonest or illegal means by an accused to obtain for himself or for any other person any valuable thing or pecuniary advantage. The respondent was convicted 58 Criminal Appeal No. 264 of 2006 by the learned Accountability Court for the afore-mentioned offence under Section 3(1)(d) of the Ehtesab Ordinance read with Section 35 of the NAB Ordinance. It will be noticed that the conviction is not under Section 9(a)(vi) of the NAB Ordinance which proscribes misuse of authority by an accused as an offence. The reason lies in the limitations imposed in Article 12 of the Constitution. Therefore, before evaluating the facts of the case in the light of the said offences, it is useful to peruse Article 12 of the Constitution: “12.(1) No law shall authorize the punishment of a person – (a) for an act or omission that was not punishable by law at the time of the act or omission; or (b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed.” The meaning and effect of Article 12 of the Constitution was dilated in Bhai Khan vs. State (PLD 1992 SC 14) in the following terms: “These Articles prohibit convictions and sentences being recorded in the criminal jurisdiction under ex post facto laws. Previously ex post facto laws imposed liability and punished acts which earlier were lawful when done. Such laws retrospectively created offences for acts or omissions that were not punishable at the time they were done or retrospectively punished persons for offences by penalties greater than or of different kinds from those prescribed for such offences at the time the same were committed. The broad range and nature of ex post facto laws is ably set out by Qadiruddin Ahmad, J. in para 20 of his judgment in Nabi Ahmad v. Home Secretary, West Pakistan (PLD 1969 SC 599 at 610-11). Being against equity and all notions of fairplay and justice, these ex post facto laws over a period of time came to be abhorred. Slowly but surely such ex post facto laws were avoided by resorting to beneficial construction or rendered invalid by legislation and the above Articles in both the Pakistan and Indian Constitutions clearly render invalid such ex post facto laws and cover acts and omissions which may even have their commencement in the pre-Constitution period. See Keshawan M. Memon v. State of Bombay AIR 1951 SC 128. Where ex post facto laws only mollify or lessen the rigours of criminal law, but do not otherwise aggravate them, doubt has been expressed as to whether such laws fall within the prohibition of such Articles. The Indian Supreme Court in Rattan Lal v. The state of Punjab (AIR 1965 SC 444) has treated such a law as not falling within the prohibition.” 59 Criminal Appeal No. 264 of 2006 According to its Section 2, the NAB Ordinance takes effect retrospectively from 01.01.1985. However, the operative effect of the said statutory intent to enforce the law retrospectively was interpreted in the case of Khan Asfandyar Wali vs. Federation of Pakistan (PLD 2001 SC 607) wherein the Court expressed the following view: “218. Article 12 of the Constitution does not deprive the legislature of its power to give retrospective effect to an enactment, which the legislature is competent to enact. It merely provides that no law shall authorise the punishment of a person for an act or omission that was not punishable by law at the time of the act or omission; or for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed. Seen in this perspective, the act of ‘wilful default’, is not an act or omission which was punishable by law at the time the same was committed but an act or omission committed 30-days after the promulgation of the Ordinance whereby the offence of ‘wilful default’ under section 5(r) was created. …” 219. So far as the punishments and creation of offences by the impugned Ordinance are concerned, they are protected by Article 12 of the Constitution, in that, under Article 12 of the Constitution ex post facto legislation can neither create new offences nor provide for more punishment for an offence than the one which was available for it when committed. This is the limited impact of Article 12 of the Constitution. …” (emphasis supplied) 12. Having established that the offence as constituted on 16.10.1996 is relevant for the purpose of prosecuting the respondent, we may now revert to the facts of the case. It is not alleged by the prosecution in this case that as a result of the disputed appointments, the respondent has procured any advantage for himself. Instead, it is alleged that temporary employment for 3 persons and for 24 persons employed by mechanical act of the Chairman, OGDC is the ‘valuable thing’ secured in this case by the respondent. The financial gain representing remuneration received by the said temporary employees has not been challenged as being excessive through any evidence. Their notifications of joining (Exb.PW- 5/1 to Exb.PW-5/19), however, record their temporary employments in Basic Scale-1 and upwards with the highest basic pay drawn being less than Rs.2100/- per month. 60 Criminal Appeal No. 264 of 2006 13. The crux of the prosecution case is that according to the office noting the respondent allegedly relaxed the rules for the extraneous object of (temporarily) appointing persons handpicked by his office to different posts in OGDC. In this regard, we have already noticed that the Service Regulations of OGDC do not apply to its temporary employees. Under the Service Regulations the procedure for appointment of staff in lower scales through a Departmental Selection Committee after advertisement applies to recruitment made against existing vacancies. In the present case, the Chairman OGDC (PW-3) explained that temporary appointments were made because there were no vacancies. Financial loss to OGDC on account of the temporary appointments obtained by the respondent is not alleged nor that he received illegal gratification or other advantage. As such the respondent’s act does not satisfy the threshold of being “corrupt” which is common and necessary ingredient of the offences under Section 3(1)(d) of the Ehtesab Ordinance and under Section 3(2)(e) of the PPPO of 1977. Therefore, he cannot be said to have acted by corrupt means to cause the outcome of temporary appointments. The prosecution has also not alleged that the respondent committed any fraudulent, devious, surreptitious, false or misleading act to obtain the disputed appointments. In fact, he acted brazenly and recklessly to disregard the reservations expressed by the Chairman, OGDC (PW-3) contained in paragraph-8 of the office noting (Exb.PB) but heeded his advice to presumptuously relax the rules without considering the need for or the result of doing so. It can be said that the respondent acted most irresponsibly, perhaps haughtily, to secure his wishes because he did not even consider the two reservations about overstaffing and financial burden expressed by the Chairman, OGDC (PW-3) in paragraph-8 of the said noting. Irrespective of the respondent’s audacious style and conduct, his approach on the file is forthright and direct; he assumes responsibility on record for what he authorized, namely, appointment 61 Criminal Appeal No. 264 of 2006 made after relaxation of rules. Consequently, in my humble view, the respondent acted in a straightforward manner without being dishonest. The meaning of expressions “corrupt”, “dishonest” and “illegal” occurring in the NAB Ordinance was considered judiciously in Hakim Ali Zardari vs. State (PLD 2002 Lahore 269) and may be referred as follows: “27. The expression “illegal” would of course connote anything done against the express provision of law. The term “Corrupt, dishonest and improper” are overlapping and have not been defined in the Ordinance under which the appellant was tried. These are terms of a Penal Statute and have to be construed in the light of the explanation contained in the section itself and in the manner in which they are used in the ordinary parlance. Because as per Crawford: “Criminal and Penal Statutes must be strictly construed, that is, they cannot be enlarged or extended by intendment, implication, or by any equitable considerations. In other words, the language cannot be enlarged beyond the ordinary meaning of its terms in order to carry into effect the general purpose which the statute was enacted”. (Page 460 of Crawford’s Interpretation of Laws by Earlt T. Crawford, Saint Louis Thomas Law Book Company, 1940). 28. It would, therefore, be in accord with this doctrine of interpretation of Penal Statutes if we adhere to the Dictionary meanings of the terms in question. The Black’s Law Dictionary (6th Edition) defines the above expressions as under: Corrupt.-- Spoiled; tainted; vitiated; depraved, debased; morally degenerate. As used as a verb, to change one’s morals and principles from good to bad. Dishonesty. – Disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity; lack of honesty; probity or integrity in principle, lack of fairness and straightforwardness; disposition to defraud, deceive or betray. Improper. – Not suitable; unfit, not suited to the character, time and place. 29. In English Law the expression “dishonesty” which is anonymous (synonymous) with “fraud” (as per Black’s Law Dictionary) has been a subject or immense debate. For Alridge and Parry, the basic elements of dishonesty are as under: “It is commonly and conveniently referred to as ‘dishonesty’, and in the case of many offences is expressly so described. However, the use of this un-technical terms should not be allowed, to obscure the fact the concept it represents is a highly complex one. It embraces at least three and arguably four, distinct requirements: viz that the defendant’s conduct should fail to conform to – (1) generally accepted standards of honest conduct, both: (a) as they actually are, and (b) as he believes them to be; and (2) the limits of what he is legally entitled to do – at any rate: (a) as he believes them to be and arguably also 62 Criminal Appeal No. 264 of 2006 (b) as they actually are.” (Alridge and Parry on Fraud, Second Edition, page 1002)” 14. In the absence of the respondent’s conduct being corrupt or dishonest, the third element of an act constituting the offence alleged against him, namely, its illegality, remains available to the prosecution to prove his guilt under Section 3(1)(d) of the Ehtesab Ordinance or more relevantly under Section 3(2)(e) of the PPPO of 1977. Illegality of the respondent’s action cannot be presumed merely from the impunity or the audacity with which he took it for obtaining the desired appointments. The illegality of his actions must stem from a violation of express law governing temporary employment in the OGDC. As observed earlier, the Service Regulations of OGDC do not apply to the disputed appointments. Therefore, by asking the respondent to relax the rules by the Chairman, OGDC (PW-3) did not secure a valid sanction but actually accomplished the transfer of total responsibility to the respondent for the disputed appointments made by the Chairman, OGDC on the asking of the respondent. The important legal fact is that neither under the OGDC Ordinance, 1961 nor the Rules of Business of the Federal Government, 1973 does a Federal Minister had power to relax rules for recruitment for employees of OGDC. Also relaxation of rules for temporary employment was meaningless as there were no OGDC rules in the field. By the mirage of relaxation of unspecified and non-existent rules, the Chairman, OGDC (PW-3) managed to protect himself against any fallout from such appointment, considering that the Federal Government was in the doldrums and was ousted less than three weeks thereafter. However, to advise relaxation he invented objections that were not uttered on 13.10.1996 when he ordered appointments without competition of 68 persons nominated by the Prime Minster’s Secretariat. If he had intended the objections seriously, he should not have advised a means to commit the objected action. Insofar as the respondent is concerned, there was precedent 63 Criminal Appeal No. 264 of 2006 and departmental practice for relaxation of rules by him. There is no doubt that the respondent was callous and cursory in his style, but one cannot blame him for trusting the suggestion of the Chairman, OGDC which was actually false. Indeed the respondent as DW-2 claimed (wrongly) that he had power to relax the rules, had done so in the past and did so presently. His misinformed self esteem, however misplaced, reflects a state of mind that is clear and upfront. Therefore, he was not conscious of committing any illegality by relaxing the rules because in his mind the Chairman, OGDC (PW-3) bona fide invited him to do. On 16.10.1996 the purpose of seeking handpicked appointments as being illegal appears never to have crossed the respondent’s mind. 15. This brings the present discussion to the other essential prerequisite for the establishment of criminal liability. Apart from a delinquent act satisfying the ingredients of the offence allegedly committed, the prosecution must also prove the guilty mind of an accused, that is his mens rea to commit such an offence. The precedents on the subject of mens rea, in offences falling under NAB Ordinance have been extensively examined in the majority opinion. In this context, the offence committed when an accused adopts an illegal course of action is dealt with directly by the two authorities, State vs. M. Idrees Ghauri (2008 SCMR 1118) and Wahid Bakhsh Baloch vs. The State (2014 SCMR 985). In the case of M. Idrees Ghauri (2008 SCMR 1118) it is held that wrongful exercise of power or action without lawful authority is not actionable unless the accused has criminal motivation. For this purpose it is necessary that the accused person is aware that his action is illegal and still commits the same to benefit himself or another person. In the second case of Wahid Bakhsh Baloch (2014 SCMR 985), consistently with the above said view, it is held that in order to be guilty an accused must have knowingly acted without lawful authority, against law or practice. There is no mens rea for an offence where an accused has 64 Criminal Appeal No. 264 of 2006 followed advice of a competent authority that is actually against the law. Both judgments converge on the present facts to propound the view that conscious knowledge of an accused that a particular act is illegal is necessary to make him criminally culpable for doing such act. The facts of the instant case do not disclose actual or conscious knowledge of the respondent that temporary appointments in OGDC or that relaxation of rules was illegal. It is quite another matter that his action did not in fact entail illegality because temporary appointments in OGDC are not governed by any rules. That the relaxation of rules by the respondent was inconsequential. 16. As a fallback, the prosecution relies upon the law laid down by this Court in Abdul Jabbar Memon’s case (1996 SCMR 1349) and Munawar Khan’s case (1993 SCMR 1287) to allege illegality of action taken by the respondent. Whereas the first case contains an interim order, however, the Munawar Khan’s case (1993 SCMR 1287) is relevant to the present facts. The instructive contents therefrom are reproduced herein below: “6. What we have noticed in all these cases which are under consideration before us is that appointments of both the parties contesting the appointments were made without such advertisement, publicity or information in the locality from which the recruitments were to be made. In view of the Constitutional requirement and the interim order already passed in Human Right Case 104 of 1992 it is expected that in future all appointments had to take place. This will, however, not apply to short-term leave vacancies or to contingent employment. 7. … 8. As regards the allocation of quota of posts to the local M.P.As or M.N.As. for recruitment to the posts, we find it offensive to the Constitution and the law on the subject. The Ministers, the Members of National and Provincial Assemblies, all are under an oath to discharge their duties in accordance with the Constitution and the law. The service laws designate, in the case of all appointments, a departmental authority competent to make such appointments. His judgment and discretion is to be exercised honestly and objectively in the public interest and cannot be influenced or subordinated to the judgment of anyone else including his superior. In the circumstances, allocation of 65 Criminal Appeal No. 264 of 2006 such quotas to the Ministers/ MNAs/MPAs and apointments made thereunder are all illegal ab initio and have to be held so by all Courts, Tribunals and authorities.” (emphasis supplied) The above said ruling condemning political appointments is highly relevant to the present case, but it also highlights a travesty of regulatory legislation: that temporary employment is a permissible backdoor entry to posts in public sector bodies and enterprises because no positive law, rule or regulation governs such employment. Whereas rules have been framed to prescribe the selection process for appointment to temporary posts in government departments, a lacuna remains in existence for autonomous State owned bodies and enterprises. Resultantly, temporary employment has been adopted as a means for preferential entry into service followed by regularization at a later stage under some devised mechanism or policy. The great body of case law on the subject of non-transparent and no- competitive employment in the public sector referred to in the majority opinion pertains to regular appointments governed by rules. This includes the landmark statement of law made in Mubashir Raza Jaffri vs. EOBI (2014 SCMR 949). All those cases decide the invalidity of the impugned appointments in the judicial review jurisdiction rather than the culpability of their perpetrator under accountability laws in the criminal jurisdiction. Indeed for determining criminal liability of an accused for the commission of illegality it is necessary for the safe administration of justice that the regulatory law requiring compliance is express, positive and certain rather than derived from judicial precedents that adjudicate the invalidity of consequential appointments. The enforcement of a prescribed process for making temporary employment in the service regulations of autonomous State owned bodies and enterprises incorporating the principles laid down by judicial precedent is therefore required and is hereby directed. Once there is positive law to test the legality of executive action granting temporary 66 Criminal Appeal No. 264 of 2006 employment, then a reliable threshold for ascertaining criminal liability for violation thereof will become available. 17. Weighed on the touchstone of good governance and responsible leadership, there is no doubt that the respondent acted wrongly. There is also no doubt that if the appointments made at his instance were to be challenged in Court of law, these would be struck down as political appointments. However, the fact remains that upon considering the record, the adoption by the respondent of a means suggested by the Chairman, OGDC (PW-3) which enjoys past precedent and practice, namely, relaxation of rules, does not in the absence of his knowledge of illegality or willful commission of an illegal act amount to an offence under Section 3(1)(d) of the Ehtesab Ordinance or Section 3(2)(e) of the PPPO of 1977. The learned High Court in the impugned judgment acquitted the respondent of the offence charged against him. The reversal of a finding of acquittal of an accused is resorted exceptionally by an Appellate Court. Such an order is passed where the finding of the acquitting Court is found to be perverse, shocking or impossible. The comprehensive statement of law made in Ghulam Sikandar vs. Mamaraz Khan (PLD 1985 SC 11) is most apt. The same is reproduced below: “However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and consistently followed principles can be clearly visualized from the cited and other cases law on the question of setting aside an acquittal by this Court. They are as follows:- (1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused. The approach is slightly different than that in an appeal against conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumption: One initial, that, till found guilty, the accused is innocent; and Two that again after the trial a Court below confirmed the assumption of innocence. (2) The acquittal will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the 67 Criminal Appeal No. 264 of 2006 end result the Court below: (a) disregarded material evidence; (b) misread such evidence ; (c) received such evidence illegally. (3) In either case, the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping always in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason. (4) The Court would not interfere with acquittal merely because on re-appraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous.” 18. The foregoing principles of law narrated in relation to the reversal of the findings of acquittal merit consideration and application in the present case. This would be a strong additional ground available under the law to exercise restraint in relation to attaching criminal liability to the conduct of the respondent. 19. Having expressed my humble view in relation to the facts of this case, it is noted with great admiration that the clear principles of law now governing the matter of employment to public posts that are regulated by rules or regulations have been ably set out in the majority opinion rendered be my learned brother Asif Saeed Khan Khosa, J. The terse and abbreviated reliance on Article 18 of the Constitution for ensuring transparent appointment of pubic posts in governmental, statutory or autonomous entities through competition has been elaborated extensively by him, with which I respectfully agree. Having endorsed those views, I support the direction given in paragraph 35 of the said opinion. 20. For the foregoing reasons and discussion, I do not find any merit in this appeal and dismiss the same accordingly. (Umar Ata Bandial, J.) 68 Criminal Appeal No. 264 of 2006 JUDGMENT OF THE COURT By a majority of two against one this appeal is allowed in the terms noted in the opinion recorded by Asif Saeed Khan Khosa, J. which opinion is declared to be the judgment of the Court. Judge Judge Judge Islamabad 20.01.2016 Approved for reporting.

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa, CJ Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No. 266 of 2019 (Against the judgment dated 24.08.2017 passed by the High Court of Balochistan, Quetta in Ehtesab Appeal No. 05 and 08 of 2009) Hashmat Ullah …Appellant versus The State, etc. …Respondents For the appellant: Mr. Zahoor-ul-Haq Chishti, ASC For the State: Mr. Imran-ul-Haq, Special Prosecutor, National Accountability Bureau Date of hearing: 07.08.2019 JUDGMENT Asif Saeed Khan Khosa, CJ.: Criminal Miscellaneous Application No. 273 of 2018 This miscellaneous application is allowed and the documents appended therewith are permitted to be brought on the record of the main appeal. Disposed of. Criminal Appeal No. 266 of 2019 2. Hashmat Ullah appellant was in the business of selling medicines and many people had invested in the appellant’s business with an understanding that regular profits would be paid to them by the appellant. The appellant statedly continued giving Criminal Appeal No. 266 of 2019 2 profits to such investors for some time but later on he stopped paying profits and allegedly refused to return the invested amounts to the relevant persons. It was also alleged that many cheques issued by him in favour of such investors had been dishonoured. With these allegations Reference No. 4 of 2007 was filed against the appellant before Accountability Court-II, Balochistan, Quetta and after a regular trial the appellant was convicted by the trial court for an offence under section 9(a)(x) of the National Accountability Ordinance, 1999 and was sentenced to rigorous imprisonment for four years and to pay fine besides confiscation of a house standing in his name and disqualification for a period of ten years. The appellant challenged his conviction and sentence before the High Court through an appeal which was dismissed and his conviction and sentence recorded by the trial court were upheld and maintained. Hence, the present appeal by leave of this Court granted on 24.06.2019. 3. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise. 4. Agreements having been entered into between the appellant and some other persons, investments made by such persons in the appellant’s business and payment of profits by the appellant to them for some time are facts which are not denied by the parties to this case. The appellant had throughout maintained that his liability was that of civil nature, particularly rendition of accounts, and not a criminal liability because he never had any criminal intent to commit the alleged offence. A perusal of section 9(a)(x) of the National Accountability Ordinance, 1999 shows that the relevant offence is attracted only if the accused person is proved to have committed the offence of criminal breach of trust as defined in section 405, PPC and if there was an entrustment of property involved in the matter. It has already been clarified by this Court in the cases of Shahid Imran v The State and others (2011 SCMR 1614) and Rafiq Haji Usman v Chairman, NAB and another (2015 SCMR 1575) that the offence under section 405, PPC punishable Criminal Appeal No. 266 of 2019 3 under section 406, PPC is attracted only in a case of entrustment of property and not in a case of investment or payment of money. In the case in hand it is the prosecution’s own case that a section of the public had invested money in the appellant’s business and this undeniable fact had taken the present case out of the purview of section 9(a)(x) of the National Accountability Ordinance, 1999. 5. It has been argued by the learned Special Prosecutor appearing for the State/National Accountability Bureau that originally the charge framed against the appellant was in respect of an offence under section 9(a)(iii) of the National Accountability Ordinance, 1999 and if this Court finds that 9(a)(x) of the said Ordinance was not attracted to the case in hand then the original charge may be considered for the purpose of upholding and maintaining the appellant’s conviction and sentence. We have attended to this aspect of the case and have found that the basic ingredients of the offence under section 9(a)(iii) of the National Accountability Ordinance, 1999 are dishonesty and fraud through which misappropriation takes place or some property is converted to the offender’s use or for the use of any other person and such property had initially been entrusted to the offender or was under his control. In the case in hand the entire evidence produced by the prosecution was in respect of agreements having been entered into by some persons with the appellant for the purposes of investment in the appellant’s business and it is written large on the record of this case that for some time after making of such investments the appellant had been paying profits to the investors. No evidence worth its name had been brought on the record to establish that at the time when the appellant stopped payment of profits to the investors the appellant’s business was still running in profit or the appellant was doing good business. No independent evidence had been produced by the prosecution to prove that stoppage of payment of profits by the appellant to the investors was a result of dishonesty or fraud on his part. The prosecution had also failed to prove that the appellant had converted the investors’ money for his own use or for the use of any other person. Even the provisions of section 9(a)(iii) of the National Criminal Appeal No. 266 of 2019 4 Accountability Ordinance, 1999 speak of entrustment of property to the accused person before it is misappropriated by him and in the case in hand, as already observed above, there was no element of entrustment available in the agreements between the appellant and the investors. The record clearly shows that the investors had invested money in the appellant’s business and they had not entrusted any money to him for such money to be paid back to them in its original form. Apart from that in such cases initial dishonest intention on the part of the accused person is an important factor but the evidence brought on the record clearly negated the same because admittedly the appellant had been paying profits to the investors for some time. It appears that, as admitted by some of the prosecution witnesses themselves, the appellant’s business had hit the rocks and such adversity had brought misfortune not only to the appellant but also to the investors in his business. In the peculiar circumstances of this case we have failed to find any dishonest intention on the part of the appellant so as to convert his act into a crime. The case in hand has appeared to us to be a classical case of a civil dispute based upon alleged breach of agreements for which remedies lied somewhere other than in a criminal court. This appeal is, therefore, allowed the conviction and sentence of the appellant recorded and upheld by the courts below are set aside and he is acquitted of the charge. We have been informed that the appellant has already served out his entire sentence of imprisonment and has since been released from the jail and, thus, no order needs to be passed regarding his release from custody. Chief Justice Judge Judge Islamabad 07.08.2019 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Sajjad Ali Shah Mr. Justice Yahya Afridi Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No. 270-L of 2012 (Against the judgment dated 29.09.2010 passed by the Lahore High Court, Lahore in Criminal Appeal No. 1356/2002 and Murder Reference No. 561/2002) Wajeeh-ul-Hassan …Appellant Versus The State …Respondent For the appellant: Syed Almas Haider Kazmi, ASC Sheikh Masood Akhtar, AOR For the State: Mr. Muhammad Amjad Rafiq, Additional Prosecutor-General, Punjab For the complainant: Mr. Ghulam Mustafa Ch. ASC Date of hearing: 25.09.2019. JUDGMENT Qazi Muhammad Amin Ahmed, J. Wajeeh-ul-Hassan, appellant, is in receipt of a guilty verdict; tried by a learned Additional Sessions Judge at Lahore, he was convicted for offences under Sections 295-A, 295-C & 298-A of the Pakistan Penal Code, 1860 and returned penalty of death alongwith imprisonments on allied charges, vide judgment dated 27-7-2002; the High Court vide judgment dated 29.9.2010 confirmed penalty of death, vires whereof, are being challenged by leave of the Court. 2. Muhammad Ismail Qureshi (PW-6), an Advocate by profession, was dispatched letters with a penname by an Criminal Appeal No. 270-L of 2012 2 anonymous mailer carrying blasphemous contents; it is alleged that he was targeted with incendiary material for his contributions towards enforcement of blasphemy laws in the country, allegedly, a source of annoyance to the minority groups; he burnt the letters and it is subsequent thereto that he received letters P-1 to P-5 in two envelopes P-6 & P-7, last purportedly written by Umar Nawaz Butt with a copy of appellant’s National Identity Card P-8; it is at this point of time that the witness approached the local police for registration of case which is finally registered on the intervention of the High Court. Formal First Information Report was registered on 21-3-1999 by Attiq-ur-Rehman SI (PW-4) who commenced the investigation, in pursuance whereto, he secured photocopies of letters P-9, P-10, P-11, P-12 & P-13 purportedly attested by the complainant alongside a copy of appellant’s National Identity Card P-14, however, without inventory. By this time, the prosecution had made up his mind against the appellant considering him the culprit behind the obnoxious mail; the belief is based upon the copy of National Identity Card, according to the prosecution, dispatched by no other than the appellant himself. A proclamation for appellant’s arrest was issued on 28.1.2001; he was proceeded against under Section 512 of the Code of Criminal Procedure, 1898 to be finally arrested on 21.5.2001, allegedly when produced by Muhammad Wasim (PW-1) and Muhammad Naveed (PW-2), the witnesses of extrajudicial confession, and it is subsequent thereto that the complainant produced impugned five letters with two envelops and a photocopy of appellant’s National Identity Card as late as on 25.5.2001. Saeed Khursheed Ahmed, Judicial Magistrate (PW-8) took specimen of appellant’s handwriting, both in English as well as Urdu on 28.5.2001 for comparison with the impugned letters, an exercise undertaken by Muhammad Bashir Qureshi (PW-9). According to his analysis, writings on the impugned letters and the specimens ‘BEAR IDENTICAL CHARACTERSTICS’. It is on this strength of evidence that the appellant was sent to face trial, on conclusion whereof, besides relying upon an edict Mark ‘A’ issued by a Seminary at Khushab, confirming him as a faithful, he took the following plea:- Criminal Appeal No. 270-L of 2012 3 “I and my father was working in the office of Asma Jehangir husband. After sometime I left the said office and joined Crown Steel Industries where Waseem Mughal was Manager. After serving in the said factory for sometime, I left my job to join Tabliq- e-jamat for four months. During my day in the said factory Waseem Mughal PW asked me that he would introduced me with someone for a meeting. I was called by Waseem Mughal, PW on telephone 15 days prior to my arrest at his home. When I reached his home, Naveed PW, one Mustafa Advocate and another unknown person was present there apart from himself. All those persons took me to Lahore Cantt area and tortured me. I was shown few letters by those persons and I was forced to admit that those letters were written by Asma Jehangir. Upon my refusal, those persons brought me to Allama Iqbal Town Police Station where Ismail Qureshi was already present. After making some entry the Moharar of Police Station showed my arrest. The motive was that a FIR was got registered by Asma Jehangir/Hina Jillani, her sister against Muhammad Ismail Qureshi, the complainant of this case. He had grudge against them. The complainant wanted me to involve Asma Jehangir/Hina Jillani, in this false case. The PWs have deposed against me at the instance of the complainant and the PWs were member of some youth force headed by him.” Position though vigorously taken by the appellant, nonetheless, failed to impress upon the courts below. It has once again been reiterated on appellant’s behalf with considerable vehemence; it is argued that in the face of appellant’s stance, evidence adduced by the prosecution being inherently flawed, weak and discrepant merited outright rejection. It is hardly sufficient to sustain ultimate irreversible corporal penalty of death, concluded the learned counsel. The learned Law Officer assisted by learned counsel for the complainant faithfully defended the impugned judgment by arguing that the complainant, a senior lawyer, had no axe to grind and it is simply unthinkable that he would fabricate impugned Criminal Appeal No. 270-L of 2012 4 letters, with most repugnant contents, to hound the appellant on mere suspicion; according to them, evidence of extrajudicial confession and report of handwriting expert excluded every hypothesis of appellant’s innocence; absconsion has been relied upon as independent corroboration. 3. We have gone through the letters with nauseatic difficulty; their contents are most grievously blasphemous, however, whether the appellant authored and dispatched these letters and the complainant received them in the manner as alleged in the crime report and that whether extrajudicial confession supported by expert’s report constitute sufficient evidence to hand down penalty of death are the issues altogether different. Penalty of death being irreversible warrants caution in the highest degree, before a convict is dispatched to the gallows. With these considerations, we have carefully examined each piece of prosecution evidence in juxtaposition with the appellant’s position. The foremost question is the identity of the mailer; it is prosecution’s own case that an anonymous writer with a penname as Murshid Masih addressed the letters; he surreptitiously concealed his identity throughout and the complainant in the crime report suspected minority groups behind the mischief; in the string of communication it is last letter P-5 with a different name accompanied by a photostate copy of appellant’s National Identity Card; this is how the prosecution finally discovered mailer’s identity. We have found it most intriguing as to why the appellant who consistently hid himself over a long period of time, finally dispatched a copy of National Identity Card so as to voluntarily rope himself in a case that may well cost him his neck; there appears no earthly reason for his choice; if at all, it is assumed that he was on a suicidal course, he could have simply mentioned his identity in the letters or could come forward, as according to the prosecution, he presented himself on 21-5-2001. This aspect of the prosecution case is antithetical to appellant’s journey into the safety of disappearance; the dichotomy is irreconcilable and even with the most lax standard of appreciation of evidence on the touchstone of probability, the prosecution is bound to fail. Criminal Appeal No. 270-L of 2012 5 Evidence of extrajudicial confession, universally regarded as inherently weak, does not present a brighter picture either; why the appellant would make his breast clean to embrace formidable consequences by abandoning his safe anonymity, in the absence of any incriminatory evidence thenceforth, is really mindboggling. According to Muhammad Waseem (PW-1), the appellant worked in his brother’s factory and had long left the job, “on account of suspicious ideas” and he called the witness month before asking for a meeting “in connection with an important work”. On 21-5-2001, the witness is joined per chance by Muhammad Naveed (PW-2) before whom the appellant sought the help for a patch up with the complainant as well as their assistance to appear before the police. The witness admitted that he did not know the complainant of the case and also that Muhammad Naveed (PW-2) joined him after travelling 10-kilometers to attend a Mehfil-e-Milad, scheduled at a different venue and it in this backdrop that both the witnesses took pain to bring the appellant, unscathed, all the way to Moon Market, Iqbal Town, Lahore where Shahzad Kamal SI (PW-10) was on a patrol duty, incidentally seized with the investigation of the case. Appellant’s visit to Muhammad Waseem (PW-1) shortly after arrival of Muhammad Naveed (PW-2), his exhaustive and comprehensive disclosure, subsequent journey to a place other than police station and per chance encounter with the Investigating Officer on patrol duty, seized with the same case in a most populous metropolis, in a flawless sequential order, are the events that cannot be believed to have occurred, without being naively imprudent. There are other reasons to view these witnesses with suspicion on account of their own narrative that the appellant had already left the factory for his ‘suspicious ideas’, therefore, he could not possibly risk a visit without being out of mind; they are discrepant as well, as according to the complainant, the mailer was a converted Christian, named as Murshid Masih whereas according to the witnesses of extrajudicial confession, the appellant was a converted Ahmadi. The entire script is preposterous to say the least. Next piece of evidence is forensic report (Ex.PF) derived on the basis of comparison of handwriting specimens with letters P-1 Criminal Appeal No. 270-L of 2012 6 to P-5, received by the complainant in two envelopes P-6 & P-7. It is prosecution case that the complainant set ablaze entire mail initially received by him, however, retained the above material with him, last received on 21-10-1998. Postal envelopes P-6 & P-7 contradict the complainant as the stamp affixed thereon suggests date, month and year other than month of October; these do not accommodate the sheets of paper without having been folded with permanent marks, conspicuously missing. This material had been handed over to the police after appellant’s arrest without any plausible explanation as to why the complainant retained the inflammatory material with him for a period exceeding two years; these anomalies put us on caution. Evidence of handwriting expert is judicially viewed as inherently weak. Reference is made to the cases reported as Mamtaj Ali Versus The State (PLD 1961 Dacca 573), Saeed Ahmed Versus The State (PLD 2003 SC 389), Syed Muhammad Umer Shah Versus The State (2004 SCMR 1859), Mst. Saadat Sultan and others Versus Muhammad Zahur Khan and others (2006 SCMR 196) and Qazi Abdul Ali and others Versus Khawaja Aftab Ahmad (2015 SCMR 184). It is by now well settled that a weak piece of evidence cannot corroborate another weak piece of evidence. Absconsion cannot be viewed as a proof for the crime. People stay away from law for a variety of reasons not necessarily compatible with the hypothesis of guilt; to avoid the impending wrath of opponents in hostile environments, more often than not compel even the innocent into recusal of safety. We cannot dismiss appellant’s plea of being a faithful Muslim nor can possibly take exception, in the absence of evidence to the contrary to his acclaimed unflinching conviction in the injunctions of his faith. The Constitution of the Islamic Republic of Pakistan, 1973 guarantees freedom to an individual to hold and profess faith of his choice; in his divine pursuits, he is sovereign and there is no intermediary between his soul and its Comforter, therefore, appellant’s declaration of faith is to be preferred over divergent imputations. Citizen regardless of religion are equal Criminal Appeal No. 270-L of 2012 7 before law and entitled to equal protection thereof and it is so guaranteed under the Constitution. A criminal charge is to be essentially settled on positive proof alone and not on perceptional or optical paradigms; the same is required in the present case, nonetheless, hopelessly out of sight. It would be grievously unsafe to maintain the conviction without potential risk of error, therefore, by extending benefit of the doubt, Criminal Appeal is allowed; the impugned judgment is set aside; appellant is acquitted of the charges and shall be released forthwith, if not required in any other case. Office shall ensure destruction of entire derogatory material and copies thereof, at all tiers. Judge Judge Judge Islamabad/Video Link at Lahore 25th September, 2019 Not approved for reporting Azmat/-

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No. 275 of 2011 3 ٢�� � ��  ہ�او ،� � �ر ت� � زاوآ � �آ � ںؤ� ��ا � ُا گ� � � �  �، �، س� � )ل� (ز�ا ،۔�� � �ا ر� روا �ا �� �� نارو� � �� ہ�اوِ زاورد � ے� ، �� � � تد� �ا�ہ � ے�آ� � ل�  س� � �� �� � � �آ  ل�� شروا � � � � ر� �۔� �� � ���ا � �ور � � �  � �د � ں � ہ� �ا �  قو�١٢ر� ر� د� �� � نا  �د ���  � ہ� �ا ۔� � � �ا  � � �� � ٹر�ر � �� ۔ا� � � � � � ہو � � �� �� � س� �� ہو  و ناردا�  �  شا ہ�اوَ �� �� � ن��� � �آ  ہو ں� روا ىد �د � �ر� � ن� � ں�ا �  � روا ل� س� � � � ن� ں� توا� ٔ�و۔� � �� � �� را�د)ہ� �ا ( �� �  � � زور � ۔� �� چ� �� روا �� ٦۔ و� �ا� ل� ِ� �� � �ار ت�ز و ء���ا �� �ور�ا و ��� � �� ہد� د �  ل� تر�۔� � �� ى�� �� � �ار روا � �ا� گ� � نارودِ � ت�وا �  روا ء�ا � ن�� ں�ُا � ا� ل�ا � ��و � ر� � � � �ا � � ��� ��ر � ن  ۔� � � � �� تاد� �ر� � ںو��ر� ہ� �ا٣ چر�٢٠٠٥ سا � ا� ر�� � �  �ر� �� ہ�� قو� � ��� �١٤ چر� ٢٠٠٥� � � � � � ۔� � �  � � � � ز� ِ�ا� �� �ا� �� �  ۔ ٧۔  روا � ا� �ور �� � � ى�آ � تار � � � تار ى��ا ��و ف� � �� ا �� �� � �� � � � �� � �د روا �� ا� � � � �د ��َ�ُ� �� � � � �  ٔ� روا � ��و ع�ا �ا�ا � ا� �� �� ۔� رو�� ��  �ور � � � � � �ذ �   ��  ٔ� � ء�ا � �� �� � � ��  ٔ�رذ �او � � � � د�و� � � � ��  ٔ� �  � � �ا � ر� �اد � � ��� ف� � ۔� � � � � � � �ا ��او   د��� �� ا روا �� � سا روا � � � � �� � � سا �ا � � �و � �� �� � �ا �� �اد �ا � �� �� � �� � �د �ور ر���� � � ۔  � � سا ا� ِ� Crl.A. No. 275 of 2011 4 �ا � �� ن�� ل�اِ� � ز�   ��  ن� �ا� ا� �ا �� � م� ن���� ں� روا ِ���� � �  � � � ��۔� � س� � ��ا با� ل�  ٨۔  � � �ِ�ا� � ا� ٔ�  س ا�  � ہا� � ��ا � ٥ س�ا � �  �� � ن� سا �   ��� �  � � � د� � سا � � ��ا � � �� ش� � م� ن���� �ا �ِ���� �� ت��َِ � �ا � ت�� � � �� �� روا �� �� � �َ � �� ا� �� �� ۔�  �� � �ا ��ا �ا � � ں� ۔� � � �او � ہ� �ا �� � �� � �� �� �َ � � � راد� � � � ا�� �� روا � ��� � ��  �  ��ع�ا �ا�ا �اِ ء�ا � ن�� � ��و  �  � � � ن�� �ا �رذ � � �� �� روا �� �� ں� � � جرد � روا ��و و� ؟� � ش � �او ���ا � � � سا سا � � ��� � ��زآ �� � � � �و �ا �  � ��و � ن�� ود �د � � ہ�� �د م� � ن�� ود ہ� ى� روا ہ� �ا � �ا � � � � �  ۔� � و � ى� � �� ث� � ٩۔ �ا �ا� �و� ور � ن�ا� �د � � ں�ود �� � � ��د � روا ��� � ت��   روا �� � ��و ِ�� ع�ا �ا�ا روا � � � دا�ا و تو� �� � � �� � � ء� د�� �  �د �ز ن�١٦١ ىرا�� ٔ��   ہ� �ا �� ۔� � �� م�� ���� ��� �  � � � � � ل� �� �� �� � قو� / د�� � �� � � �ار � �ا ��ا� � � � س�ر� � ���ا  �� � �  � �ء�� � �� ا�     � ۔� ١٠۔  �� � ت� � �و � ن�� � ع�د��و � � � �� � ��ا ن�ا�ِ � ىر�  � � ل� روا � � �ڈ ر� م� � نارود � �ا /��� � ںؤ�اڈ �ا � � � � ��  ��و � � دا�� �� �او �ا روا د� ہ� �ا �� � �� م� � � � روا � �� �   � � � � ��ا ن�ا� � �ِٔ�و � � تد� ل� روا ل� �� �� � � د�   �� ��ا �ا�ا �ا �رذ � ��د � � �� ِ� روا � �آ � � �� � ��و ِ�� د� ٔ�و روا � � �اد�ورُ �� � �� � � ہا� � � � ا  س �  � ع�د ِ�و � ح�  �  Crl.A. No. 275 of 2011 5 ۔� � �� �� �� � ارذ � �� �ار ر�ا � � ں� �� � �ّ �� � س�  � �  روا � �� � � ل� � ء� � د� ٔ�و � ن�آ� � � ہ� �ا �ا�۔ � تار ى��ا   �� �ا �د � ل� ��ا� ر�ا � ے�ُا � ہس �� ا ِ � � س � �ا �� �اد  تر� �ا �� � � � ى� �� � روا � � �آ �� � � ل� � �ا د� � تر� �ا  � ہ�۔� � � �� ہ� �� � ن� ن�ا� �ِ� � � ںؤ� �ا � � � � � ��ا  �  ۔� �� �ور �� � �ا� � ں�و �اڈ روا ىر� �و � تار روا � �اوُ ١١۔ ن�� �و �� دز� ��و � � سا � تار � � ل�ا � � �ا� �/ � م� ن����ِ���� � �� �� � �� � � �� � � � �� �� �ا � � � ب� ہو ا � � سا �   � �� تادراو ��� تادراو ٔ�� ہو � � �� � � ر�ا را� ہار ��آ� ِ۔ �ر� �  ��و � � � لاڈ � ى�� � � � � � � � �  سا � �ا � � �� �� �� و � � تد� � �� �� � �ر� � تار   روا � �� �د �رد � تد� � �  � �  سا �� � � تد� ى�� ط� � �� و �� � � �د� ��� و  � �� � تد� �ا ۔� � ف� � ں��ا �رز � ف�ا ��ر�ا � تد� �ا � �و  �� �� ��و  �  � �ا� ��� � � �� � �� ِ�ا� ��ء� سا ��  ى� � ن�� �� ود � ہ� �ا  ���� � ب� �� � ل� � ں�ا � ،�  � ف� � � ف�ا و ن�� ل�ا ��  ن�� ں�� � ��� ِ � ��� � �  � � �� � �ا� ز� � �� ِ�ا� ۔ � � � نا � ء� � ر� �� �ر� � �� � � � � �د�� � �� � ن�� ہ� ى� � ن�  � م� ح� �ا � ں�ود � � ى� �د ہ�� � � �  � �� �� � ��ا � � ہ� �ا � ر� د� ١٢ر� �� � د� ں�ود  ہوروا � � � قو � � � � � ہد� � � � �   �� � �رد � �� � � � ب� � � �� ل�ا �ا ہو � تر� � ے� � ��  ت��و�� �ر� �� �� � ت�او � � � � �ور � ��د وِ��و� � روا ك� ت   � �� روا ار�� ��و � ل�ا ��� �ا� ا� � � در � ��ا تد� � � ر�� � ۔� �� � ى� � ہ� �ا روا � �� � ر� �ا �� ت��� ۔�ِ Crl.A. No. 275 of 2011 6 ٹ�: ت��وِ� ےر� �� �� � ى��ا�ر� ٣٠ ىر� ٢٠١٧�  � � � �� � �� � � �ذ � � � �� �ا�ود:۔ “For reasons to be recorded later on, this appeal is allowed. Consequently, the appellant is acquitted of all the charges leveled against him and he shall be set free forthwith, if not required in any other case. The detailed reasons shall follow. � � � ،د�آ م�ا٣٠،ىر�٢٠١٧� )ر� � � ��ا( �و �ا

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Yahya Afridi Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.277 OF 2020 (Against judgment dated 20.10.2010 passed by the Lahore High Court Multan Bench in Crl. Appeal Nos.173 of 2008 with M.R. No.375/2005) Zulfiqar Ali …Appellant(s) Versus The State …Respondent(s) For the Appellant(s): Mr. Rizwan Ejaz, ASC. For the State: Mirza Abid Majeed, Deputy Prosecutor General Punjab. Date of hearing: 12.11.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- The appellant stands convicted for committing Qatl-i-Amd of her sister-in-law Fareeda alias Pappa, 30, her brother Shabbir Ahmed, 25 and mother Jameela, 55/60 at 3:30 p.m. on 1.9.2004 within the precincts of Police Station City Dera Ghazi Khan. The learned Sessions Judge Dera Ghazi Khan vide judgment dated 09.06.2005 sentenced him to death on three counts of homicide within the contemplation of clause (b) of section 302 of the Pakistan Penal Code, 1860, altered into imprisonment for life on each vide impugned judgment dated 20.10.2010, vires whereof, are being assailed on a variety of grounds through leave by the Court. The incident was reported by Sagheer Ahmed (PW-9) related to each deceased in first degree; according to him, her sister Fareeda alias Pappa was happily married with appellant’s brother Umar Ali for past 8/9 years; she complained appellant’s indecent overtures to her husband who shifted the family to another premises. On the fateful day, Fareeda alias Pappa had come to visit her mother when the appellant arrived at the scene; he took a razor (ustra) from his pocket and dealt multiple blows to Fareeda on her face and head after exhorting revenge; deceased’s mother Jameela and brother Shabbir Criminal Appeal No.277 of 2020 2 Ahmed tried to intervene; the appellant picked a wooden plank (mohli) and hit them both in their heads. This happened, as per the complainant, within his view as well as those of Muhammad Ashraf and Muhammad Kashif (given up PWs), residents of Block-C, attracted to the venue that situated in Block-H. The witnesses tried to apprehend the appellant but were kept at bay by his threats. Appellant again dealt blow to Fareeda in her head, already fallen on the ground and severed her trachea. Resistance by Fareeda alias Pappa to appellant’s carnal designs is cited as a motive for the crime. The casualties were shifted to D.H.Q. Hospital D.G. Khan; upon arrival the females were pronounced dead, however, Shabbir Ahmed, being unconscious with a solitary wound on top of skull, briefly struggled for life, however, lost the battle on 3.9.2004. Police recovered wooden plank (mohli) P-12 and razor (ustra) P-13, both stained with blood of human origin. Abandoned by the witnesses named in the crime report, Sagheer Ahmed (PW-9) and his sister Muniran Mai (PW-10) entered the witness box to drive home the charge. Though the leave was primarily granted to consider the implication of consecutive commutation of sentence in the absence of any direction to the contrary by the High Court, however, in the peculiar facts and circumstances of the case and with a view to ensure safe administration of criminal justice, we have allowed the learned counsel for the convict, appointed at State expense, to argue at full length all the available grounds. According to the learned counsel, the case set up in the crime report hopelessly fails to inspire confidence; he has taken us to the statement of Sagheer Ahmed (PW-9) to demonstrate that it was the very first day of the family in the house of occurrence as they had shifted there same day and, thus, there was no occasion for the appellant or for that matter anyone else to know about the presence of Fareeda alias Pappa at the venue, according to the prosecution, the prime targeted chased by the appellant; he next argued that, be that as it may, the appellant had no axe to grind against Shabbir Ahmed and Jameela Bibi who too were brutally murdered while identically placed Sagheer Ahmed (PW-9) remained unscathed. A razor/ustra, hardly a choice weapon for an assassin covering long distance to engage his victim, is yet another intriguing aspect of the case inasmuch as it certainly could not allow the appellant to accomplish the task with any degree of ease under the shadow of witnesses, six in number, two deceased inclusive. Similarly, Criminal Appeal No.277 of 2020 3 there appears no earthly reason as to why the appellant almost slit the neck of Fareeda alias Pappa when she was already lying dead on the ground; there is far more than what meets the eye, concluded the learned counsel. Highlighting the horrors of the incident, the learned Law Officer has faithfully defended the impugned judgment; he has referred to the promptitude in recourse to law and medical examination as well as autopsy shortly thereafter to argue that there was hardly any time for the prosecution to put up a false case with a view to swap the real offender. 2. Heard. Record perused. 3. Though the human response/reaction, in a sudden crisis, particularly one striking awe and terror, cannot be gauged or assessed with any degree of empirical certainty as fear impacts differently upon faculties of the onlookers, nonetheless, despite maximum latitude, in the given scenario, it really appears hard for the appellant who operated with impunity in the face of heavy presence of the witnesses; deceased being herself “a young female with average-built” could not be expected a static target offering no resistance. Razor (P-13), commonly used by the barbers, given its moving handle instead of a fixed grip, is an instrument to be managed with some difficultly against a moving object; it risks the handler more than the intended target and as such unless the victim is stunned as a stone, a possibility beyond contemplation for the witnesses standing nearby to foil the attempt; they included three able-bodied males in their youth; their inaction is mindboggling and explanation far from being plausible, circumstances that in retrospect insinuate their absence at the scene; two of them, named conspicuously in the crime report failed to come forward to support the prosecution. Muniran Mai (PW-10), the next eye witness, has substituted them with Jan Muhammad and Eisa PWs; they too opted to stay away. Amongst others, Fareeda alias Pappa was survived by four children; their ages are not on the record, however, given the family composition and magnitude of brutality inflicted upon their near and dear, they wouldn’t have countenanced their father’s abstention to facilitate offender’s escape from justice. The above circumstances, cumulatively confirm that despite colossal loss of lives, the prosecution has not come forward with the whole truth and that unmistakably presents a situation that does not allow, in the absence of evidentiary certainty, to maintain conviction without potential risk of error. Consequently, by extending benefit of the doubt, criminal appeal is Criminal Appeal No.277 of 2020 4 allowed; impugned judgment dated 20.10.2010 is set aside; the appellant is acquitted of the charge; he shall be released forthwith if not required by law. Judge Judge Judge Islamabad, the 12th November, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa, CJ Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No. 282 of 2019 (Against the order dated 16.05.2019 passed by the Islamabad High Court, Islamabad in Criminal Miscellaneous No. 283-B of 2019) Anti-Narcotics Force through its Regional Director/Force Commander, A.N.F. Rawalpindi …Appellant versus Qasim Ali …Respondent For the appellant: Ch. Ehtisham-ul-Haq, Special Prosecutor, Anti-Narcotics Force Syed Rifaqat Hussain Shah, AOR Mirza Abdul Rehman, A.D. Faizan Khawaja, I.O. For the respondent: Syed Wusat-ul-Hassan Shah, ASC with the respondent in person. Date of hearing: 21.08.2019 JUDGMENT Asif Saeed Khan Khosa, CJ.: Criminal Miscellaneous Application No. 1233 of 2019 This miscellaneous application is allowed and the rejoinder filed by the respondent is permitted to be brought on the record of the main appeal. Disposed of. Criminal Appeal No. 282 of 2019 2 Criminal Appeal No. 282 of 2019 2. Through this appeal by leave of this Court granted on 26.07.2019 the Anti-Narcotics Force/appellant has assailed the order dated 16.05.2019 passed by a learned Division Bench of the Islamabad High Court, Islamabad in Criminal Miscellaneous No. 283-B of 2019 whereby the respondent was admitted to post-arrest bail in case FIR No. 4 registered at Police Station Anti-Narcotics Force/R.D. North, Rawalpindi on 12.01.2019 in respect of offences under sections 9(c) and 15 of the Control of Narcotic Substances Act, 1997. 3. According to the prosecution the respondent was apprehended red-handed while sitting in a motorcar through the search of which vehicle charas weighing 1600 grams, cocaine weighing 57 grams, ice weighing 10 grams and some other intoxicants had been recovered and subsequently a report had been received from the Chemical Examiner in the positive. The respondent had been admitted to post-arrest bail by the High Court mainly on the grounds that in view of the sentencing guidelines of the Lahore High Court, Lahore issued in the case of Ghulam Murtaza and another v The State (PLD 2009 Lahore 362) the respondent was not likely to be punished for a period of imprisonment attracting the prohibitory clause contained in subsection (1) of section 497, Cr.P.C.; a co-accused of the respondent was not apprehended at the spot; and the case against the respondent called for further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C. We, however, have not been able to find the said grounds weighing with the High Court to be valid or sufficient for the purpose of admitting the respondent to post-arrest bail in the present case because all the said considerations were in derogation of the law. It has already been clarified by this Court in the case of Socha Gul v The State (2015 SCMR 1077) that the sentencing guidelines issued by the Lahore High Court, Lahore in the above mentioned case of Ghulam Murtaza are not relevant at the stage of bail or during the trial. Criminal Appeal No. 282 of 2019 3 Failure of the raiding party to apprehend the respondent’s co- accused could hardly react upon the merits of the respondent’s case for bail. Section 51 of the Control of Narcotic Substances Act, 1997 clearly ousts application of the provisions of section 497, Cr.P.C. to the cases under the Control of Narcotic Substances Act, 1997 and, thus, any reference to subsection (2) of section 497, Cr.P.C. by the High Court while admitting the respondent to bail was uncalled for. 4. We have pertinently observed that the merits of the case against the respondent had not been attended to by the High Court at the time of passage of the impugned order by it. It shall, therefore, be fair and proper if instead of canceling the respondent’s bail an opportunity may in the first instance be afforded to the High Court to attend to the merits of the case against the respondent for the purposes of his admission to bail. This appeal is, therefore, allowed, the impugned order passed by the High Court on 16.05.2019 is set aside, the matter of the respondent’s bail is remanded to the High Court for a fresh decision of the same on the merits of the petitioner’s case and during the interregnum the respondent shall be deemed to be on ad-interim post-arrest bail which the High Court may confirm or not. This appeal is disposed of in these terms. Chief Justice Judge Judge Islamabad 21.08.2019 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.291 of 2020 (Against the judgment dated 24.02.2016 passed by the Lahore High Court Lahore in Criminal Appeal No.613 of 2011 along with CSR No.16-T of 2011) Muhammad Farhan alias Irfan …Appellant(s) Versus The State …Respondent(s) For the Appellant(s): Ms. Aisha Tasnim, ASC For the State: Mirza Abid Majeed, Addl. Prosecutor General Punjab Date of hearing: 27.10.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Haji Muhammad Nadir, 50/55, and his son Muhammad Mohsin, 24/25, were gunned down while resisting robbery at 4/5:00 p.m. on 29.12.2009 in their shop located within the precincts of Police Station City Jarranwala; Muhammad Babar (PW-13) and Muhammad Usman (given up) survived the assault. The appellant was one of the four assailants, nominated in the crime report; of them, Malik Irfan and Arshad alias Pehlwan were killed in a police encounter whereas Asif Manzoor is still away from law. The appellant alone contested indictment on multiple charges before the learned Judge Anti Terrorism Court-I, Faisalabad; vide judgment dated 6.4.2011, he was convicted and sentenced as under:- i. U/s 302(b)/34 PPC for committing Qatl-i-Amd of Haji Muhammad Nadar (deceased) to suffer death penalty with payment of compensation to the tune of Rs.500,000/- or six months SI in the event of default ii. U/s 7(a) of Anti-Terrorism Act, 1997 for committing Qatl-i-Amd of Haji Muhammad Nadar (deceased) to suffer death penalty with payment of compensation to the tune of Rs.500,000/- or six months SI in the event of default Criminal Appeal No.291 of 2020 2 iii. U/s 302(b)/34 PPC for committing Qatl-i-Amd of Muhammad Mohsin (deceased) to suffer death penalty with payment of compensation to the tune of Rs.500,000/- or six months SI in the event of default iv. U/s 7(a) of Anti-Terrorism Act, 1997 for committing Qatl-i-Amd of Haji Muhammad Nadar (deceased) to suffer death penalty with payment of compensation to the tune of Rs.500,000/- or six months SI in the event of default v. U/s 324/34 PPC to suffer 10-years RI with payment of fine to the tune of Rs.50,000/- or six months SI in the event of default vi. U/s 392 PPC to suffer 10-years RI with payment of fine to the tune of Rs.50,000/- or six months SI in the event of default vii. U/s 411 PPC to suffer 3-years RI with payment of fine to the tune of Rs.50,000/- or six months SI in the event of default.” The High Court upheld the convictions, however, altered penalty of death into imprisonment for life on each count, vide judgment dated 24.02.2016, vires whereof, are being assailed through leave of the Court. 2. The deceased privately dealt in prize bonds business; on the fateful day, four masked gunmen intruded into the shop and robbed prize bonds of various denominations, valuing rupees two million; PWs resisted them when they resorted to firing in consequence whereof two from amongst the witnesses were fatally shot while Muhammad Babar and Muhammad Usman received injuries; one of the assailants, namely, Irfan was also hit by an accidental shot; during the scuffle masks worn by the assailants fell from their faces; they were identified as Muhammad Farhan alias Irfan, Asif Manzoor, Malik Irfan and Arshad alias Pehlwan. With their injured companion, the accused took to the heels. The appellant was in custody in Noshehro Feroz prison when on a tip off he was formally arrested in the present case on 23.7.2010. As the investigation progressed, the appellant pursuant to disclosures led to the recovery of a .30 caliber pistol (P-6) and prize bonds valuing Rs.35,000/-. Prosecution produced as many as 19 witnesses to drive home the charge; of them, ocular account has been Criminal Appeal No.291 of 2020 3 furnished by Rana Dilawar Hussain (PW-12), Muhammad Babar (PW-13) and Muhammad Waleed (PW-14). The appellant confronted prosecution evidence with denial while blaming Malik Irfan and Arshad alias Pehlwan as the possible culprits already done away during a police encounter. 3. Learned counsel for the appellant contends that question of identity of the assailants is looming large on the scene inasmuch as according to the complainant himself, the robbers had concealed their faces with masks and as they indiscriminately fired upon the deceased and the PWs, there was hardly an occasion that the masks would drop from their faces in the absence of only physical resistance by Muhammad Mohsin PW vis-à-vis Malik Irfan co-accused since eliminated by the police; that Muhammad Babr (PW-13) and Muhammad Usman (give up) though shown in the crime report to have survived the fire shots, nonetheless, were not medically examined and, thus, their presence at the crime scene is far from being plausible; that no casing was secured from the spot and, thus, recovery of pistol (P-6) without forensic comparison does not advance prosecution case. The learned counsel has referred to improvements made by the witnesses in their statements with regard to the locale of injuries to argue that departure of the witnesses from their initially stated positions seriously undermine their credibility. The bottom line is that the actual culprits were done away by the police in the traditional way and that the appellant had been framed as an additional scapegoat, being hounded by the witnesses to oblige the local police. The learned Law Officer has faithfully defended the impugned judgment; according to him, the appellant has already been dealt with a leniency that he did not deserve given the enormity of crime and colossal loss of lives of a father and his son in consequence thereof. 4. Heard. Record perused. 5. The witnesses are closely related; the complainant lost his brother and a nephew related in no less degree with Muhammad Babar (PW-13) and Muhammad Waleed (PW-14) being father and brother, callously done to death in the midst of city during broad daylight, leaving no space to admit any hypothesis of substitution by the witnesses. Death of Malik Irfan and Arshad alias Pehlwan, nominated in the crime report alongside the appellant on the day one, while resisting a police encounter goes a long way to implicate the appellant as being a comrade in the crime. Prosecution’s failure to bring on record medico Criminal Appeal No.291 of 2020 4 legal certificates of the injured though a deplorable inaptitude in prosecution of the case, nonetheless, does not adversely impact upon the totality of circumstances that clearly suggests examination of Muhammad Babar (PW-13) by the Investigating Officer while he was admitted in the Allied Hospital Faisalabad. Alleged improvements in the statements of witnesses, highlighted by the learned counsel to discredit their credibility, being inconsequential narrative variations, mostly explanatory in nature, without altering the integrity of prosecution’s case, merit condonation. Nomination of the accused in the crime report without any loss of time, soon after the incident, lends credence to the story of droppage of masks, a circumstance by itself to strengthen complainant’s truthfulness in faithfully relating events of the fateful day. View taken by the Courts below being well within the remit of law calls for no interference. However, appellant’s conviction under section 7(a) of the Anti Terrorism Act, 1997, is not sustainable in view of the law declared by this Court in the case of Ghulam Hussain & others Vs. The State (PLD 2020 SC 61), therefore, his conviction to that extent is set aside. Remainder of the convictions and sentences consequent thereupon including amounts of compensation and fine are kept intact. Appeal partly allowed. Judge Judge Judge Islamabad, the 27th October, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SARDAR TARIQ MASOOD MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE JAMAL KHAN MANDOKHAIL CRIMINAL APPEAL NO. 293 OF 2020 (On appeal against the judgment dated 09.03.2016 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeal No. 19-J/2012 and Murder Reference No. 16/2012) Bashir Muhammad Khan … Appellant Versus The State …Respondent(s) For the Appellant: Raja Muhammad Rizwan Ibrahim Satti, ASC For the State: Mr. Muhammad Jaffer, Addl. P.G. Date of Hearing: 07.02.2022 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Appellant Bashir Muhammad Khan along with three co-accused was proceeded against in terms of the case registered vide FIR No. 387/2008 dated 29.11.2008 under Sections 302/109/34 PPC at Police Station Kahuta, District Rawalpindi for committing murder of Sagheer Hussain son of the complainant. However, co-accused Muhammad Waqar and Muhammad Shahid were discharged from the case on the basis of supplementary statement of the complainant while co- accused Badshah Khan was declared proclaimed offender. The learned Trial Court vide its judgment dated 22.02.2012 convicted the appellant under Section 302(b) PPC and sentenced him to death. He was also directed to pay compensation amounting to Rs.100,000/- to the legal heirs of the deceased to be recoverable as arrears of land revenue. In default of payment of fine, the appellant was directed to further undergo imprisonment for a period of six months. However, in appeal the learned High Court altered the sentence of death into imprisonment for life. The amount of Criminal Appeal No. 293/2020 -: 2 :- compensation and the sentence in default whereof was maintained. Benefit of Section 382-B Cr.P.C. was also extended to the appellant. 2. The prosecution story as given in the judgment of the learned Trial Court reads as under:- “Muhammad Saleem complainant maintained through the above petition that his son Sagheer Hussain was doing the business of shuttering with Zakir Mehmood, Rustam Javed and Habir ur Rehman, at Punjaar Chowk, Kahuta. Sagheer Hussain deceased victim had obtained contract of under construction house of Zia Ullah. The contract for the construction of above said house was obtained by Badshah Khan who had sublet the contract for the plaster of said house to Muhammad Bashir accused, Shahid and Waqar. On the fateful morning of 29.11.2008 Sagheer Hussain son of the complainant alongwith Zakir, Rustam and Habib ur Rehman went to the place of work. At about 9.00 AM when son of the complainant took the pipe for having water, Muhammad Bashir accused pulled the said pipe upon which altercation took place between them. During this altercation Bashir accused made straight fireshot of pistol .30 bore hitting Sagheer Hussain on his mouth and teeth. The second fireshot made by Shahid with pistol .30 bore hit right buttock of Sagheer Hussain. In the meanwhile Waqar made third fire with pistol .30 bore hitting on left buttock of Sagheer Hussain who fell down and succumbed to the injuries at the spot. The motive behind had been altercation taking place on 28.11.2008 about taking of water. The occurrence was committed at the instance of Badshah Khan accused.” 3. After completion of the investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. The prosecution in order to prove its case produced 15 witnesses. In his statement recorded under Section 342 Cr.P.C the appellant pleaded his innocence and refuted all the allegations leveled against him. However, he did not opt to appear under Section 340(2) Cr.P.C. to lead defence evidence. 4. Learned counsel for the appellant contended that the complainant had not witnessed the occurrence himself and had nominated three accused in the case for making effective firing on the person of the deceased on the basis of information conveyed to him by Habib-ur-Rehman, Zakir Mehmood (PW-9) and Rustam Javed Criminal Appeal No. 293/2020 -: 3 :- (PW-10) but Habib-ur-Rehman was not produced as a witness before the Trial Court whereas Zakir Mehmood (PW-9) and Rustam Javed (PW-10) subsequently resiled from their earlier statement recorded under Section 161 Cr.P.C and testified that the co-accused Shahid and Waqar had not fired upon the deceased. Contends that the complainant in his supplementary statement has also exonerated the said two co-accused. Contends that the three crime empties recovered from the place of occurrence did not match with the pistol allegedly recovered from the appellant but the learned courts below did not take this into consideration. Lastly contends that the learned High Court while passing the impugned judgment has not taken into consideration the above-said aspects of the matter and has not appreciated the evidence in its true prospective, therefore, a great miscarriage of justice has been done. 5. On the other hand, learned Law Officer has defended the impugned judgment. He contended that the appellant has committed murder of an innocent person and the evidence available on record is sufficient to prove the case against him, therefore, he does not deserve any leniency by this Court. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. The perusal of the record clearly reveals that the complainant had not seen the occurrence and had nominated the appellant and co-accused in the crime report for committing murder of his son by firing upon him on the basis of information received from Habib-ur-Rehman, Zakir Mehmood (PW-9) and Rustam Javed (PW-10). However, Habib-ur-Rehman was not produced as a prosecution witness while Zakir Mehmood (PW-9) and Rustam Javed (PW-10) subsequently resiled from their earlier statement recorded under Section 161 Cr.P.C and testified that the co-accused Shahid and Waqar had not fired upon the deceased. It is also an admitted position that the complainant in his supplementary statement recorded after one and half month of the occurrence i.e. 15.01.2009 had also exonerated the said two co-accused Muhammad Waqar Criminal Appeal No. 293/2020 -: 4 :- and Muhammad Shahid. When during the cross-examination the PWs were confronted about their earlier statements recorded under Section 161 Cr.P.C. they could not give any plausible explanation. Delayed recording of statement of PW under Section 161 Cr.P.C. reduces its value to nil unless and until it is explained rendering justiciable reasonings. Reliance is placed on the judgment reported as Abdul Khaliq Vs. The State (1996 SCMR 1553). This judgment was followed by this Court in another judgment reported as Noor Muhammad Vs. The State (2020 SCMR 1049) as also in an unreported judgment passed in Criminal Petition No. 537/2021. Keeping in view the conduct of the PWs, it would not be safe to only rely upon their statements to sustain conviction of the appellant and there must be some independent corroboration to the extent of his involvement in commission of the crime. So far as the recovery of pistol .30 bore from the appellant is concerned, as per the report of the Forensic Science Laboratory the crime empties of .30 bore did not match with the pistol, therefore, the recovery is held inconsequential. As far as the abscondence of the appellant for a period of about six months is concerned, this question was not put to the appellant in his statement under Section 342 Cr.P.C, therefore, the same cannot be used against him. The medical evidence is inconsistent with the ocular account as regards injury No. 3 on the right hip of the deceased is concerned, which in-fact was an exit wound but according to the prosecution witnesses of ocular account the same was an entry wound. In these circumstances, a dent in the prosecution’s case has been created, benefit of which must be given to the appellant. It is a settled law that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence. Any doubt arising in prosecution’s case is to be resolved in favour of the accused and burden of proof is always on prosecution to prove its case beyond reasonable shadow of doubt. However, as discussed above, in the present case the prosecution has failed to prove its case beyond any reasonable shadow of doubt. Criminal Appeal No. 293/2020 -: 5 :- 7. For what has been discussed above, this appeal is allowed and the impugned judgment is set aside. Appellant is acquitted of the charge. He shall be released from jail forthwith unless detained in any other case. JUDGE JUDGE JUDGE Islamabad, the 7th of February, 2022 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mr. Manzoor Ahmad Malik Mr. Justice Mr. Sardar Tariq Masood Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal Nos. 296-L & 297-L of 2020 AND Criminal Petition No.373-L/2016 (Against the judgment dated 23.02.2016 passed by the Lahore High Court Lahore in Crl. Appeal Nos.2055/2010, 2142/2010 and Crl. Rev. No.1348/2010 with M.R. No.135/2011) Akbar Ali (in Cr. A. No.296-L/2020) Muhammad Yousaf & 3 others (in Cr. A. No.297-L/2020) Muhammad Rashid (in Cr. P. No.373-L2016) …Appellant(s) Versus The State & another (in Cr. A. No.296-L & 297-L/2020) Akbar Ali & 5 others (in Cr. P. No.373-L/2016) …Respondent(s) For the Appellant(s): Mr. Azam Nazir Tarar, ASC Mr. Mudassir Chathha, ASC (in Cr.A.296-L & 297-L/2020) For the Petitioner(s): Mr. M. Qamar-uz-Zaman, ASC (in Cr.P.373-L/2016) For the State: Mr. Khurram Khan, Addl. Prosecutor General Punjab Date of hearing: 21.10.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- The appellants, being members of an unlawful assembly, were tried by a learned Additional Sessions Judge at Lahore; they were indicted for homicide as well as murderous assault committed on 12.10.2005 at 2:00 p.m. within the precincts of Police Station Hadyara Lahore. Akbar Ali, appellant is attributed fatal shot to Abdul Hameed deceased, 35/36; Muhammad Shafique (PW-1), Muhammad Siddique (PW-2), Muhammad Shahid (PW-3), Faqir Hussain (PW-4), Muhammad Parvez (PW-5) and Haji Lal Din (PW-9), assaulted with multiple weapons, survived the assault. A previous brawl is cited as motive in the crime Criminal Appeal Nos. 296-L & 297-L of 2020 AND Criminal Petition No.373-L/2016 2 report lodged by deceased’s father Haji Lal Din (PW-9). Accused claimed trial that resulted into their convictions on multiple counts vide judgment dated 30.09.2010; held guilty under clause (b) of section 302 of the Pakistan Penal Code, 1860, Akbar Ali appellant was sentenced to death with a direction to pay compensation. The co-accused were convicted and sentenced for murderous assault upon the witnesses as well as injuries endured by them in consequence thereof. Separate appeals filed by the convicts were dismissed by single judgment dated 23.02.2016 with alteration of Akbar Ali’s death penalty into imprisonment for life; the co-convicts were let off from the charge of murderous assault, however, to the extent of injuries caused by them, direction for monetary compensation to the witnesses was kept intact. Still dissatisfied the convicts through leave of the Court have assailed the findings recorded by the High Court on the grounds that occurrence did not take place in the manner as alleged in the crime report and that after prosecution’s failure on extensively arrayed, coordinate charge of murderous assault, the entire edifice of the case stood seriously jolted and, thus, it would be grievously unsafe to maintain the conviction. Alteration of death penalty into imprisonment for life as well as acquittal on coordinate charges, have been challenged by Muhammad Rashid, petitioner, on behalf of his deceased father; it is argued that in a case of massive violence, proved to the hilt through the testimony of injured witnesses, there was no occasion for the High Court, either to alter penalty of death into imprisonment for life or let off co-accused from the charge of murderous assault merely for investigating officer’s failure to recover from the accused weapon used by them during the occurrence. A confidence inspiring ocular account free from all taints had constituted ‘proof beyond doubt’ that conclusively clinched the case, concluded the learned counsel. 2. Heard. Record perused. 3. Guilty verdict returned to Akbar Ali appellant, even on a most strict reappraisal, does not admit space to any exception; witnesses are unanimous on his having targeted the solitary fatal shot that cost Abdul Hameed life in his prime youth. A negative forensic report, nonetheless, seriously diminished consequentiality of the weapon recovered, a circumstance accompanied by prosecution’s failure to establish motive validly extenuated alteration of death penalty into imprisonment for life, a wage found by us, on our own independent analysis, as conscionable in circumstances. Criminal Appeal Nos. 296-L & 297-L of 2020 AND Criminal Petition No.373-L/2016 3 Though except for Muhammad Anwar appellant/respondent, attributed a butt blow to Muhammad Shafique (PW-1), remainder of the accused are assigned solitary fire shot to the PWs on different parts of their bodies, nonetheless, given nature and locales of the injuries, the High Court viewed their lethality as being insufficient to attract the mischief of section 324 of the Code ibid, particularly in view of recovery of blunt weapons, preferred to saddle the assailants with monetary compensation, primarily provided for the violence endured by the injured, a view vehemently contested by the prosecution. Appellants/ respondents were arrested way back in the year 2005 and appear to have remained incarcerated for considerable period of time; much water has flown under the bridge and it would be thus inexpedient to reexamine and revisit the question of their culpability within the framework of their indictment, as prayed for by the prosecution. Period of incarceration and tribulation of lengthy trial and procedures of appeal have adequately remedied the wrong in circumstances, calling for no further action. Criminal Appeal Nos.296-L and 297-L of 2020 fail. Dismissed. 4. As a natural corollary, Criminal Petition No.373-L of 2016 is dismissed and leave refused. Judge Judge Judge Lahore, the 21st October, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE JAMAL KHAN MANDOKHAIL MR. JUSTICE ATHAR MINALLAH CRIMINAL APPEAL NO. 297 OF 2020 (Against the judgment dated 27.06.2016 passed by the Lahore High Court, Rawalpindi Bench in Murder Reference No. 40/2013 and Criminal Appeal No. 338/2013) Amir Muhammad Khan …Appellant(s) VERSUS The State …Respondent(s) For the Appellant(s): Mrs. Kausar Irfan Bhatti, ASC For the State: Mirza Abid Majeed, DPG For the Complainant: Nemo Date of Hearing: 18.01.2023 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Appellant was tried by the learned Additional Sessions Judge, Talagang, pursuant to a case registered vide FIR No. 8 dated 06.02.2013 under Section 302 PPC at Police Station Lawa, Tehsil Talagang, District Chakwal for committing murder of Adam Khan, father of the complainant. The learned Trial Court vide its judgment dated 20.07.2013 convicted the appellant under Section 302(b) PPC and sentenced him to death. He was also directed to pay compensation amounting to Rs.500,000/- to the legal heirs of each deceased. In appeal the learned High Court while maintaining the conviction of the appellant under Section 302(b) PPC, altered the sentence of death into imprisonment for life. Benefit of Section 382-B Cr.P.C. was also extended to the appellant. Being aggrieved by the impugned judgment, the appellant filed Jail Petition No. 454/2016 before this Court Criminal Appeal No. 297/2020 -: 2 :- wherein leave was granted by this Court vide order dated 13.05.2020 and the present appeal has arisen thereafter. 2. The prosecution story as given in the impugned judgment reads as under:- “2. Brief facts of the case as per the complaint (Ex.PA) filed by Zafar Ali, complainant (PW-8) are that he was resident of Dhoke Chaki Dakhli Dhurnal and on 06.02.2012, he was grazing the cattle, at about 9.00 am, he heard noise. He went to his Dhoke, where his sister-in-law (Bhabi) Mst. Ansar Bibi (PW-9) told him that his father Adam Khan was getting ready to go to the village Dhurnal, when Amir Muhammad Khan while armed with hatchet came in the room and gave repeated hatchet blows on the neck and rear side of left hand of Adam Khan, deceased, who died at the spot. 3. The motive behind the occurrence was alleged a dispute over land and construction of house.” 3. After completion of the investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. The prosecution in order to prove its case produced eleven witnesses. In his statement recorded under Section 342 Cr.P.C, the appellant pleaded his innocence and refuted all the allegations leveled against him. He did not opt to appear as his own witness on oath as provided under Section 340(2) Cr.P.C in disproof of the allegations leveled against him. However, he produced certain documents in his defence. 4. At the very outset, learned counsel for the appellants argued that it was an unseen occurrence and the prosecution witness of the ocular account was not present at the spot. Contends that there are glaring contradictions and dishonest improvements in the statement of the eye- witness, which escaped the notice of the learned courts below. Contends that the ocular account is negated by the medical evidence and the statement of Zahid Iqbal, Halqa Patwari (PW-6), therefore, the same has lost its sanctity and the conviction cannot be based upon it. Contends that the prosecution has not been able to prove motive as alleged, which causes serious dent in the prosecution case. Contends that the recovery of weapon of offence is inconsequential because it was allegedly recovered from an open place, as Criminal Appeal No. 297/2020 -: 3 :- such, it cannot be made basis to sustain conviction of the appellant. Lastly contends that the reasons given by the learned High Court to sustain conviction of the appellant are speculative and artificial in nature, therefore, the impugned judgment may be set at naught. 5. On the other hand, learned Law Officer vehemently opposed this appeal on the ground that the eye-witness had no enmity with the appellant to falsely implicate him in this case. It has been contended that the medical evidence is also in line with the ocular account, therefore, the appellant does not deserve any leniency from this Court. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. 7. A bare perusal of the record reflects that the instant case, wherein the father of the complainant was done to death, took place at 09:00 am on 06.12.2012 whereas the crime report was lodged at 02:10 pm i.e. after more than five hours of the occurrence. The distance between the place of occurrence and the Police station was 21 kilometers. Nowhere in the entire evidence, the prosecution has explained the reason for the delay in reporting the matter to the Police with such a delay. The delayed FIR shows dishonesty on the part of the complainant and that it was lodged with deliberation and consultation. The prosecution case mainly hinges upon (i) the statement of Mst. Ansar Bibi (PW-9), who is the sole eye-witness of the occurrence, (ii) medical evidence, (iii) motive, and (iv) recovery on the pointation of the appellant. According to the Mst. Ansar Bibi, the occurrence took place at 09:00 am; the appellant inflicted two hatchet blows on the neck of the deceased and one blow on the back of left hand of the deceased. According to her, the occurrence took place in the house and the head of the deceased was decapitated from the rest of the body. She further stated during her cross- examination that both the head and the body were separately picked up by the Police. However, her stance is negated by the medical evidence. According to Dr. Rizwan Shahid (PW-10), the occurrence took place at 05:00 am and the Criminal Appeal No. 297/2020 -: 4 :- deceased was not beheaded. He further stated that there is every possibility that the injuries caused to the deceased were inflicted when he was sleeping, lying or during intoxication because the posture of the injuries showed that the injuries on the neck cannot be caused while in standing position. The statement of the doctor that the head of the deceased was not decapitated is further strengthened by Pervaiz Akhtar, SI/Investigating Officer (PW-11), who stated during his cross-examination that when he first saw the dead body, his head was not chopped up from his body. The stance of Mst. Ansar Bibi was further negated by Zahid Iqbal, Halqa Patwari (PW-6), who prepared scaled site plan. According to him, the occurrence took place at a deserted place; there was no house of anyone and there was also no blood sign at the place of occurrence. The appellant in his statement recorded under Section 342 Cr.P.C. had specifically taken the plea that in-fact it was the complainant, who being son of the deceased, had issues with him. The complainant wanted to marry his daughter with one Sher Afzal but his wife and other family members had objection over it. The deceased being father of the complainant had forbidden him from doing so but he did not do so. As a result, the wife of the complainant along with all children went to the house of the deceased. The deceased married the daughter of the complainant namely Sumaira Khatoon with Muhammad Yousaf and in the marriage ceremony the complainant did not participate. The complainant moved an application under Section 491 Cr.P.C, which has been placed on record as Ex.DB, in the Court of Additional Sessions Judge, Talagang against the deceased and others for recovery of his wife and his children. In the said application, he alleged that the deceased wanted to kill him and he has illegally detained his wife and children. Upon the said application, the learned Additional Sessions Judge, got recorded the statement of the wife of the complainant, who in categorical terms stated that she has never been detained by anyone and she along with her children is residing with her father-in-law i.e. the deceased with her free will. Thereafter, the learned Court disposed off the petition filed by the complainant vide order dated 12.07.2008. The said order has also been placed on record vide Ex.DC. It has come on the record that the appellant is grandson of the deceased and he Criminal Appeal No. 297/2020 -: 5 :- was being brought up by the deceased. The appellant alleged that due to the apprehension that the deceased would transfer his whole property in his name, the complainant committed murder of his father. When the appellant had taken a specific stance and in support of the same had placed on record the relevant documents, the learned High Court ought to have taken into consideration the statement of the appellant under Section 342 Cr.P.C. and would have properly scrutinized the evidence but the learned High Court even did not discuss it in the impugned judgment. As far as motive part of the prosecution story is concerned, the complainant in his statement stated that there was a dispute over land and construction of house due to which the appellant committed murder of his father. However, except for his oral assertion he did not produce any independent evidence to substantiate the motive part of the prosecution story, therefore, we are of the view that the prosecution has failed to prove motive. So far as recovery of blood stained hatchet is concerned, the same was allegedly recovered on the pointation of appellant from a thoroughfare, which was easily accessible to everyone, therefore, it is settled law that the same is inconsequential. 8. Mere heinousness of the offence if not proved to the hilt is not a ground to punish an accused. It is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. The peculiar facts and circumstances of the present case are sufficient to cast a shadow of doubt on the prosecution case, which entitles the appellants to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the accused. This Court in the case of Mst. Asia Bibi Vs. The State (PLD 2019 SC 64) while relying on the earlier judgments of this Court has categorically held that “if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Criminal Appeal No. 297/2020 -: 6 :- Pervaiz v. The State (1995 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048).” The same view was reiterated in Abdul Jabbar vs. State (2019 SCMR 129) when this Court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution’s case automatically goes in favour of an accused. The conviction must be based on unimpeachable, trustworthy and reliable evidence. Any doubt arising in prosecution case is to be resolved in favour of the accused. However, as discussed above, in the present case the prosecution has failed to prove its case beyond any reasonable shadow of doubt. 9. For what has been discussed above, this appeal is allowed and the impugned judgment is set aside. The appellant is acquitted of the charge. He shall be released from jail unless detained/required in any other case. The above are the detailed reasons of our short order of even date. JUDGE JUDGE JUDGE Islamabad, the 18th of January, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeals No.298 & 299-L/2017 (Against the judgment dated 26.11.2014 passed by the Lahore High Court, Lahore in Criminal Appeals No.1985/2011 & 2098/2011 and C.S.Rs. No45-T/2011) Tariq Ali Shah (in Criminal Appeal No.298-L/2017) Ahad Shah (in Criminal Appeal No.299-L/2017) …Appellant(s) VERSUS The State etc. (in Criminal Appeal No.298-L/2017) The State through P.G. Punjab (in Criminal Appeal No.299-L/2017) …Respondent(s) For the Appellant(s): Mr. Abid Saqi, ASC (in Criminal Appeal No.298-L/2017) Mr. Naveed Ahmed Kh., ASC (in Criminal Appeal No.299-L/2017) For the State: For respondent No.2: Ch. Muhammad Mustafa, DPG Mr. Naveed Ahmad Kh., ASC (in Criminal Appeal No.298-L/2017) Date of Hearing: 24.6.2019. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Through leave of the Court, impugned herein is High Court's judgment dated 26.11.2014 whereby conviction of Ahad Shah, appellant, returned by the trial Court was upheld with modification of death penalty into imprisonment for life; he was indicted alongside Shahbaz Ali, Adal Shah, Sattar Shah and Mst. Kousar alias pathano for committing qatl-e-amd of Saqib Shah within the precincts of office of Superintendent of Police, Laylpur Town, Faisalabad at 3.45 p.m. on 2.5.2011. On the fateful day, investigation in a criminal case brought both the factions face-to-face at the venue; from amongst the array of accused, Adal Shah and Sattar Shah, blamed for abetment, were acquitted by the trial Court whereas Mst. Kousar Criminal Appeals No.298 & 299-L/2017 2 alias Pathano has been let off by the High Court; Shahbaz Ali, co- accused slipped away before announcement of the judgment. In the backdrop of a longstanding enmity, on the fateful day, the appellant, armed with a .30 caliber pistol, targeted the deceased with multiple fire shots; apprehended at the spot alongside the weapon, wedded with six casings secured from the spot, he was tried by an Anti-Terrorism Court, to receive a guilty verdict. 2. Arch rivalry with string of criminal cases between the two sides is a common ground; appellant's arrest with the weapon shortly after the occurrence statedly from the precincts of office of Superintendent of Police are circumstances, at first sight, pointed inexorably towards his culpability, however, on a closer scrutiny of prosecution's case, a number of factors san plausible explanations; his arrest from the office of Superintendent of Police does not find mention in the crime report; prosecution's claim that Nazakat Ali, SI, PW-9 arrested the appellant from first floor of the office has to be taken with a pinch of salt; according to his narrative, he first went to Allied Hospital, Faisalabad to draw up preliminary proceedings, a process essentially time intensive, and thereafter upon his return apprehended the appellant at the spot with weapon. It is mind boggling as to why in the heavily guarded premises no one else attempted to arrest the appellant; mute response in a heightened situation is somewhat intriguing; genesis of the script is inherently suspect. Acquittal of Mst. Kousar alias Pathano by the High Court is yet another devastating blow to the prosecution; she is a lady constable, indicted for being privy to the crime; it is alleged that clad in a sheet, she took aside the appellant shortly before the incident; logistical support is suggested though with reticence; her acquittal tremors down the very foundation of the case. No less intriguing is belated autopsy conducted the following day i.e. 3.5.2011 at 9.40 a.m. The deceased was shifted dead in the mortuary on 2.5.2011 where complaint was recorded at 4.20 p.m.; Allied Hospital, Faisalabad is a tertiary hospital; holding in abeyance of postmortem examination for such a long period is mind boggling to say the least; it reasonably spaces the hypothesis of consultations and deliberations. Findings recorded by the medial officer further add to the prosecution's predicament; use of a .30 caliber pistol is Criminal Appeals No.298 & 299-L/2017 3 unequivocally alleged as the only weapon employed by the appellant, however, according to the autopsy report, the medical officer noted "A complex of 22 firearms wounds of entries of different shape and sizes (2 mm x 2 mm to 1 cm x 1 cm) in an area of 23 cm x 7 cm on lower chest and abdomen. Left part". The High Court itself viewed the above injury with suspicion for being incompatible/inconsistent with the weapon, seized with appellant's arrest. It casts away the hypothesis of appellant's arrest soon after the occurrence alongside the weapon of offence. Witnesses do not appear to have come forward with the whole truth and given the formidable past hounding both sides, patent discrepancies cannot be viewed as trivial, particularly after prosecution's failure qua three of the co-accused albeit with somewhat different roles. It would be unsafe to maintain the conviction. Criminal Appeal No. 299-L/2017 is allowed; impugned judgment is set aside; the appellant is acquitted from the charge and shall be released forthwith, if not required in any other case. As a natural corollary, Criminal Appeal No.298-L/2017 is dismissed. JUDGE JUDGE Lahore, the 24th of June, 2019 Not approved for reporting Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeals No.3-P & 4-P/2014 (On appeal form the judgment dated 02.10.2012 passed by the Peshawar High Court, Peshawar in Criminal Appeal No.698 of 2011). Somaid (in Crl.A.3-P/2014) Ali Gohar @ Gohar Zaman (in Crl.A.4-P/2014) …Appellant(s) VERSUS Ali Gohar @ Gohar Zaman & another (in Crl.A.3-P/2014) The State & another (in Crl.A.4-P/2014) …Respondent(s) For the Appellant(s) : Mr. Astaghfirullah, ASC Mr. Muhammad Ajmal Khan, AOR (in Crl.A.3-P/2014) Mr. Ghulam Mohyuddin Malik, ASC Mr. Muhammad Zahoor Qureshi, AOR (in Crl.A.4-P/2014) For the State : Barrister Qasim Wadud, Additional Advocate General, Khyber Pakhtunkhwa Along with Respondent No.1 in Crl.A.3-P/2014 Date of Hearing : 30.04.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J.- Criminal Appeal No.3-P/2014 and Criminal Appeal No.4-P/2014, by the complainant’s son and convict respectively, through leave of the Court, arisen out of incident dated 22.9.2005 within the remit of Police Station Zaida, District Swabi; with a common thread, are being decided through this single judgment. Criminal Appeals No.3-P & 4-P/2014. 2 2. Prosecution case is structured on the statement of Haji Muhammad Zamin Khan, deceased; he was on way back after attending a condolence meeting when Ali Gohar, appellant fired upon him, as result whereof he sustained four entry wounds with two exits. After making statement to the police; he succumbed to the injuries; the accused absconded; arrested belatedly he was put to trial; when indicted, claimed trial, resulting into his conviction under Section 302 of Pakistan Penal Code, 1860; he was sentenced to death as tazir vide judgment dated 2.12.2011; the learned Peshawar High Court maintained conviction under clause (b) of the Section ibid, however altered penalty of death into imprisonment for life with a direction to pay Rs.600,000/- as compensation to the legal heirs; benefit under Section 382-B of the Code of Criminal Procedure, 1898 was extended to the appellant. 3. Learned counsel for the complainant contends that in the absence of any judicially recognized mitigating circumstance, there was no occasion for the learned High Court to alter penalty of death into imprisonment for life, whereas learned counsel for the convict has questioned the vires of impugned conviction on the ground that case being founded primarily on a dying declaration, the prosecution miserably failed as to who recorded deceased’s last words and thus it would be unsafe to maintain the conviction. 4. Fate of prosecution case is hinged upon dying declaration, purportedly made by the declarant at the police station, converted into first information report. According to the statement of Munawar Khan, PW-6, he received the injured and recorded his statement, however in the next breath, he ascribed first information report to Khan Ghalib Khan statedly recorded on his dictation. The latter is examined as PW-13; he denies to have recorded the first information report, Exhibit PA and thus as to who recorded deceased’s last words, is shrouded into mystery. Dying declaration, in legislative wisdom, is an exception to general rule of direct evidence; it is admitted to the detriment of an accused without opportunity of cross examination upon the declarant under the belief that a person, face to face with God, would tell nothing but the whole truth. Sanctimonious hypothesis Criminal Appeals No.3-P & 4-P/2014. 3 notwithstanding before conviction is based upon such a declaration, prosecution must demonstrate beyond shadow of doubt that it comprises of the words of declarant alone without extraneous prompting or additions; the person who records dying declaration is therefore a most important witness to verify veracity thereof. He is conspicuously missing in the array of witnesses and thus declaration, Exhibit PA, cannot be relied upon without potential risk of error. It would be grievously unsafe to maintain the conviction, therefore by extending benefit of the doubt to the appellant, Criminal Appeal No.4-P/2014 is allowed, impugned judgment dated 2.10.2012 is set aside; he shall be released forthwith, if not required in any other case; as a natural corollary Criminal Appeal 3-P/2014 is dismissed. JUDGE JUDGE Peshawar, the 30th of April, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Mr. Justice Jamal Khan Mandokhel Criminal Appeal No.3-Q and Criminal Petition No.29-Q of 2021 (Against the judgment dated 22.02.2021 passed by the High Court of Balochistan, Sibbi Bench in Crl. Revision and Appeal No.(S)30 & 114 of 2019) Abdul Ghani (in both cases) …Appellant/Petitioner (s) Versus The State through P.G. Balochistan & another (in Cr.A.3-Q/2021) The State through P.G. Balochistan (in Cr.P.29-Q/2021) …Respondent(s) For the Appellant/ Petitioner(s): Mr. Ahsan Rafiq Rana, ASC (in both cases) For the State: Mr. Abdul Razzaq Sher, ASC (in both cases) For the Complainant: Mr. Noor Jahan Kahor, Addl. Prosecutor General Balochitan (in both cases) Date of hearing: 03.11.2021. ORDER Qazi Muhammad Amin Ahmed, J.- The appellant, indicted for violating Fazeela prosecutrix, 9, was returned a guilty verdict by a Juvenile Court at Naseerabad, District Dera Murad Jamali; convicted under section 376(1) of the Pakistan Penal Code, 1860 he was sentenced to 10-years R.I. vide judgment dated 07.08.2019, enhanced to imprisonment for life by a learned Division of Bench of the High Court of Balochistan vide impugned judgment dated 22.02.2021, vires whereof, are being assailed through the captioned petition as well as appeal as of right. 2. According to the prosecution, the prosecutrix Fazeela Bibi (PW-1) accompanied by her sister Shireen (PW-2) was grazing goats when the appellant, no other than her father’s first cousin, taking advantage of solitude violated her within the view of her younger sister; she was found lying unconscious when pursuant to information Criminal Appeal No. 3-Q of 2021 2 conveyed by Shireen, the family approached her lying unattended. This happened on 12.7.2018 at 4:00 p.m. whereas the report was laid with the police at 5:00 p.m. followed by medical examination of the victim on 13.7.2018 that clinically confirmed carnal assault; samples dispatched for generation of D.N.A. profile as well as confirmation of seminal stains were returned in the negative. 2. Learned counsel for the appellant contends that the prosecutrix as well as her younger sister, being impressionable children of extreme tender age, respectively 9 and 8 years, were not worthy of credit and, thus, implicit reliance upon their testimony is an option fraught with the potential risk of error, a fundamental flaw that escaped notice by the courts below; negative forensic report inescapably casts shadow on the reliability of prosecution case, benefit whereof cannot be withheld; it is alternately argued that in any case there was no occasion for the High Court to enhance the legal sentence particularly in view of tender age of the appellant with no history to haunt his past; tried as a juvenile, the wage settled by the learned trial Judge could not be viewed as inappropriate warranting interference by the High Court, concluded the learned counsel. The learned Law Officer has faithfully defended the impugned judgment; according to him, wage settled by the High Court is most conscionable in circumstances. 2. Heard. Record perused. 3. The incident occurred in a remote rural part of the Province of Balochistan when the prosecutrix’s father was away to Quetta and rushed back upon receipt of information. In this backdrop, the crime is reported with a remarkable promptitude; petitioner being a close family relation, the timeframe does not space any hypothesis of consultations or deliberations. The child being in tender nubility is clinically established to have been violated, a circumstance that required no further forensic corroboration. Negative reports do not reflect upon the veracity of prosecution case for reasons more than one. D.N.A. profile generation though a most meticulous method with unfailing accuracy, nonetheless, requires an elaborate arrangement about storage and transportation of samples, a facility seldom available. Even a slightest interference with the integrity of samples may alter the results of an analysis and, thus, the fate of prosecution case cannot be pinned down to the forensic findings alone, otherwise merely presenting a corroborative support, hardly needed in the face of overwhelming evidence, presented by the prosecution through sources most Criminal Appeal No. 3-Q of 2021 3 unimpeachable. Penetration is sufficient to constitute the offence and there are many factors, physical as well as psychological, that may intervene during a carnal assault, impeding complete consummation of carnal assault. Such subsequent failures do not redeem the enormity of initial assault, a case otherwise established to the hilt. Given the violence inflicted upon the child, enhancement of appellant’s sentence by the High Court, his juvenility notwithstanding, nonetheless, cannot be viewed as excessive or harsh. Petition as well as appeal fail. Dismissed. Judge Judge Judge Quetta, the 3rd November, 2021 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeals No.301-L & 302-L/2017 (Against the judgment dated 13.11.2014 passed by the Lahore High Court, Lahore in Criminal Appeals No.1401/2010 and 1366/2010) Muhammad Ikram Shah (in Criminal Appeal No.301-L/2017) Muhammad Asif and 3 others (in Criminal Appeal No.302-L/2017) …Appellant(s) VERSUS The State (in Criminal Appeal No.301-L/2017) The State (in Criminal Appeal No.302-L/2017) …Respondent(s) For the Appellant(s): Mian Muzaffar Ahmed, ASC (in Criminal Appeal No.301-L/2017) For the Appellants: (Ghafoor Ahmed Shah, Mehfooz Ahmed Shah and Tayyab Shah): For the Appellant: (Muhammad Asif): Miss Najma Perveen, ASC Ms. Tasnim Amin, AOR (in Criminal Appeal No.302-L/2017) Mr. M. Taki Khan, ASC Rana Arif Kamal Noon, ASC (in Criminal Appeal No.302-L/2017) For the complainant: Ch. Akbar Ali Shad, ASC For the State : (without caveat) Ch. Muhammad Mustafa, DPG Date of Hearing: 26.6.2019. JUDGMENT Qazi Muhammad Amin Ahmed, J.- A household in an affluent neighborhood within the remit of Police Station Defence-A, Lahore was surprised at 2.30 p.m. on 6.7.2009 when three unknown intruders trespassed on gun points; they were alongside the servants, namely, Ikram and Farooq, leading them apparently under coercion; they kept the inmates as hostage and looted a number of articles comprising gold ornaments, valuable securities and cell phone handsets; the Criminal Appeals No.301-L & 302-L/2017 - 2- family was confined in a store and they left along with Ali Hussain Mehmood, aged 31/4 years. The culprits demanded ransom of Rs.3,00,00,000/, subsequently settled as Rs.50,00,000/-, paid on 26.8.2009 to secure release of the child. It is in this backdrop that a joint investigation team commenced the probe. The accused were arrayed through supplementary statements; one of the servants, namely, Ikram was identified as accomplice, a privy to the crime. As the investigation progressed, as many as eight persons were identified to have architected the episode with different roles, however, in collaboration with one another; of them, Rab Nawaz and Munir were killed in a police encounter; the appellants along with Mst. Nagina Bibi were arrested on 18.12.2009. Muhammad Asif and Tayyab Shah were identified by the witnesses through a test identification parade. Pursuant to disclosures, the accused led to various incriminating recoveries, including portion of cash received as ransom as well as jewelry. The child was recovered from the custody of Mst. Nagina Bibi, co-accused on 18.12.2009. Indicted on 17.2.2010, the accused claimed trial, pursuant whereto, prosecution produced as many as twenty witnesses to drive home the charge; they furnished ocular account of robbery as well as payment of ransom to Tayyab Shah and Muhammad Asif, appellants. Learned trial Judge convicted all the appellants; they were sentenced to death barring Mst. Nagina Bibi, awarded imprisonment for life; their appeals in the High Court failed albeit with alternation of death penalties into imprisonment for life vide impugned judgment dated 13.11.2014 vires whereof are being challenged through leave of the Court; bound by a common thread, these are being decided through this single judgment. 2. Genesis of the occurrence cannot be doubted and the family certainly does not have an axe to grind against the accused; two from amongst them have been done to death, statedly while resisting the police; Mst. Nagina Bibi has not opted to dispute her conviction and sentence, upheld by the High Court. Testimonies furnished by the witnesses that include female members of the family have been found by us Criminal Appeals No.301-L & 302-L/2017 - 3- straightforward and confidence inspiring, duly corroborated by the recoveries that cannot be possibly foisted. Test identification parade and evidence of payment of ransom to Muhammad Asif and Tayyab Shah, appellants, squarely frame them with the crime by excluding every hypothesis of their innocence; they have rightly been convicted and sentenced; the High Court has already shown leniency by converting penalties of death into imprisonment for life; their appeal fail. Dismissed. Case of Muhammad Ikram Shah, Mehfooz Ahmed Shah and Ghafoor Ahmed Shah is on different footing. Muhammad Ikram Shah is identically placed with Farooq, the other servant in the family; he was let off with a clean chit; it is prosecution's case that he alongside Ghafoor Ahmed Shah and Mehfooz Ahmed Shah shared information that took the investigating officer to the child, statedly, held by Mst. Nagina Bibi, co-accused; assertion being non-specific, vague and joint, does not constitute disclosure within the contemplation of Article 40 of the Qanun-e-Shahadat Order, 1984 in absence whereof their culpability rests more upon a subjective belief rather than a positive proof; they are on crossroad; their convictions cannot be maintained without potential risk of error, therefore, it would be conscionable to extend them benefit of doubt; Criminal Appeals to their extent are allowed. JUDGE JUDGE Lahore, the 26th of June, 2019 Not approved for reporting Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Sarmad Jalal Osmany Mr. Justice Dost Muhammad Khan Criminal Appeal No.310/2006 (On appeal from the judgment dated 2.6.2004 passed by Peshawar High Court Bench Abbottabad in Cr.A.58/2002). Haider Zaman …Appellant VERSUS The State Sadiq Shah …Respondents For the appellant: Mr. Mushtaq Ali Tahirkheli, ASC Ch. Akhtar Ali, AOR For private respondents: Mr. M. Manzoor Ahmed, ASC For State: Mr. Muhammad Siddique Baloch, ASC Date of hearing: 12.3.2014 JUDGMENT Dost Muhammad Khan, Judge,.- This appeal with the leave of the Court dated 10.05.2006, has been filed against the order of acquittal dated 2.06.2004 of respondent No.2 namely Sadiq Shah, charged for a crime under section 302/324/34 PPC, passed by the Peshawar High Court, Abbottabad Bench. 2. Briefly stated, Haider Zaman, while reporting the crime at 12:50 hrs. on 23.01.1997 alleged as follows:- “That on fateful day at about 10:00 hrs while present in his house, he was informed that firing was going on Crl.Appeal No.310/06 2 in the ‘Bazar’, hence he left for the crime spot where he saw (i) Shafique (ii) Azhar and (iii) Sher Muhammad lying dead, while (i) Waheed (ii) Waseem and (iii) Zareen were bound in injured condition. He has further alleged that on inquiries made, he was told that (i) Nazir Shah (ii) Sadiq Shah and (iii) Akram Shah had killed the deceased while injured the three victims. Motive for the crime shown was that a day prior to the fateful day, Akram Shah and Azhar quarreled with each other. And that, the parties were not on a good terms. He added that the crime was witnessed by (i) Saleem (ii) Muhammad Sadiq and (iii) Khurshid Anwar. While adding to the charge he also implicated the Khan family of “Beer” for giving hidden support to the accused.” 3. This report was taken close to the crime sport. The Investigating Officer inspected the spot and secured blood from crime spot of all the victims and the deceased besides 3 empties of 7.62 bore and a cartridge of 30 bore from the place where presence of Akram Shah was shown, 4 empties of 7.62 bore and one de- shaped spent bullets from the place of Sadiq Shah, 4 crime empties of 7.62 bore and one de-shaped bullet from the place of Nazir Shah. He also recovered a magazine of Kalashnikov loaded with 12 bullets from the rooftop of the top floor of the house of the accused along with 7 empties of 7.62 bore and one crime empty of 12 bore from the second place of the rooftop. 4. Present respondent namely Sadiq Shah surrendered before the local police while rest of the nominated accused are still absconding as was stated at the bar. On completion of the investigation charge-sheet was filed in the trial Court, in which one Jehangir and Ishtiaq were also implicated for abetment, who too faced the trial along with the respondent before the learned Crl.Appeal No.310/06 3 Sessions Judge/Judge Special Court at Haripur. The prosecution produced 23 witnesses. After completion of the trial, Jehangir and Ishtiaq were acquitted of the charge, however, respondent Sadiq Shah was convicted and sentenced to life imprisonment on four counts and to pay Rs.100000/- to the legal heirs of each of the deceased. He was further sentenced u/s 337-B PPC for 7 years R.I. on two counts and to pay Rs.30000/- as Daman to victim Waseem PW. 5. On appeal filed by respondent No.2, the learned Division Bench of the Peshawar High Court, Abbottabad Bench set aside his conviction and sentence and acquitted him of all the charges. 6. We have heard the learned ASCs appearing for the parties as well as the learned counsel for the State. 7. Undeniably the appellant Haider Zaman was not an eye- witness because he reached the spot when the transaction was over. It is intriguing to note that besides having all facilities of transportation and help of friends and relatives residing close to the spot, he did not accompany the injured to the hospital, although Waheed was his real nephew, but he chose to become the maker of FIR and on the other hand eye-witnesses, who claimed to have witnessed the crime being available on the spot did not report to the police besides the three injured. 8. The testimony of the two witnesses namely PW Muhammad Sadiq being the uncle of one of the deceased and PW Waheed would show that they were not present on the crime spot but the former was inside his shop, 150 yards away from the crime Crl.Appeal No.310/06 4 spot. It is true that the presence of injured PWs on the spot is established having been injured in the transaction, however, a careful study and appraisal of their testimony would show that they are not on one and the same page with Haider Zaman complainant. Muhammad Sadiq was examined by the police too late under section 161 Cr.PC. although he was available to the police. The question arises as to whether the injured PWs have deposed the true facts or have exaggerated the account and have given twist to the story by toeing their version to that of Haider Zaman complainant. 9. In each hospital, through a notification of the Provincial Government, Crime Reporting Centre headed by an ASI has been established since long but none from the injured reported the matter to the Center when they reached at the hospital. To cover this vacuum and omission, they stated that on reaching the hospital they became unconscious but they were contradicted by the Medical Officer, Dr. Muhammad Irshad, who examined them. The Medical Officer has stated that both the injured were fully conscious and they themselves provided their respective names, parentages and addresses to him. 10. The way and the manner, the injured PWs narrated the story step by step, attributing individual role to each one of the accused and modulated step by step the occurring of the tragedy, appear a tutored one. 11. Besides, PW Abdul Malik, SHO, who recorded Murasila report Ex.P/A stated that when he reached the spot, both the deceased and the injured victims were lying on the spot but in the Crl.Appeal No.310/06 5 FIR he has clearly stated that he informed the police station to depute a police officer to prepare the injury sheets and inquest reports of the injured and the deceased. 12. We do not deem it appropriate to discuss the merits of the case so minutely lest it prejudice the case of the Prosecution as a whole because the three co-accused are still absconding. However, suffice it to say that the transaction appears to be a sudden fight and the role of the respondent in the transaction is of causing injury to one of the injured. He was arrested on 19.02.1997 and after his conviction by the Trial Court on 04.04.2002 till the date when he was acquitted by the High Court through the impugned judgment dated 02.06.2004 he had undergone more than 07 years imprisonment, both as under-trial prisoner and as a convict. And if remissions granted from time to time by the Superintendent Jail, I.G Prisons, Provincial Government and the Federal Government are added, it would be more than 10 years. More so, the immediate cause for the incident has been shrouded in mystery or at least has been suppressed by the Prosecution, rendering blood of the accused to reach at a boiling point by acting in a ruthless manner as reflected from the facts of the case, however, that very cause which in all probabilities might be serious enough has been muffled by the Prosecution. 13. It is bedrock principle of criminal jurisprudence that in a case of this nature being the result of sudden flare up, the principle of vicarious liability is not attracted so strictly like in the cases where crime is committed in a pre-planned and well calculated manner. Crl.Appeal No.310/06 6 14. This being the case, in our view, respondent No.2 has suffered a reasonable sentence for his individual and independent act, he has committed, thus at this stage re-sentencing him after he had earned acquittal from the High Court would not be in consonance with the well settled principle of justice and that too when this Court has always exercised restraints not to interfere in the judgment of the High Court unless it is shown to be perverse, fanciful and is structured as a result of gross misreading and non reading of material evidence causing miscarriage of justice. Thus, we do not find merits in this appeal, accordingly, the same is dismissed. 15. Needless to observe that some remarks made above with regard to the merits of the case shall in no manner prejudice the prosecution case qua the absconding accused and their cases/case when they surrender and are tried, shall be dealt with strictly on merits and on the strength of evidence to be recorded during their trial. Judge Judge Judge Islamabad, the 12th March, 2014 ‘Nisar’ ‘Not approved for reporting’

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Dost Muhammad Khan Mr. Justice Sardar Tariq Masood Criminal Appeal No. 315 of 2012 (Against the judgment dated 29.12.2011 passed by the High Court of Balochistan, Quetta in Criminal Jail Appeal No. 11 of 2011 and Murder Reference No. 06 of 2011) Nasrullah alias Nasro …Appellant versus The State …Respondent For the appellant: Malik Shakeel-ur-Rehman Khan, ASC For the complainant: Mr. Tariq Mehmood, Sr. ASC Syed Rifaqat Hussain Shah, AOR For the State: Mr. Tahir Iqbal Khattak, ASC Date of hearing: 07.03.2017 JUDGMENT Asif Saeed Khan Khosa, J.: Nasrullah alias Nasro appellant had allegedly murdered his wife namely Mst. Hameed Bibi at about 10.30 A.M. on 29.04.2010 by firing at her in his own house in village Arbaseen in the area of Police Station Saddar, Loralai and for commission of the said murder he was booked in case FIR No. 42 registered at the said Police Station on the same day. After a regular trial the appellant was convicted by the trial court for an offence under section 302(b), PPC and was sentenced Criminal Appeal No. 315 of 2012 2 to death which conviction and sentence of the appellant had subsequently been upheld and confirmed by the High Court. Hence, the present appeal by leave of this Court granted on 27.06.2012. 2. Leave to appeal had been granted in this case in order to reappraise the evidence and also to consider the question regarding quantum of the appellant’s sentence and with the assistance of the learned counsel for the parties we have reappraised the evidence and have also attended to the question of the appellant’s sentence. 3. It is not disputed that Zahir Khan complainant (PW4) was not an eyewitness of the alleged occurrence and according to the complainant he had received an information about the murder of his sister on telephone whereafter he had gone to the house of the deceased, had taken the deadbody to the hospital and had thereafter lodged an FIR. It had never been stated by the complainant in the FIR lodged by him that when he had reached the house of the deceased the eyewitnesses namely Taveez Khan (PW1) and Raza Khan (PW5) were present in that house at that time or that it was the said eyewitnesses who had informed him of the occurrence through telephone. It has been found by us to be intriguing that the above mentioned eyewitnesses had claimed to have seen the occurrence wherein Mst. Hameed Bibi had been critically injured but surprisingly the said eyewitnesses had never taken the injured victim to the hospital for medical treatment and till the arrival of the complainant at the house of occurrence the deadbody of Mst. Hameed Bibi was still lying in that house and it was he who had statedly taken the deadbody to the hospital. Such unusual conduct of the above mentioned eyewitnesses surely raised an eyebrow. 4. Both the eyewitnesses produced by the prosecution, i.e. Taveez Khan (PW1) and Raza Khan (PW5) were cousins of Mst. Hameed Bibi deceased and admittedly they lived about eighty Criminal Appeal No. 315 of 2012 3 kilometers away from the scene of the crime. The said eyewitnesses had claimed that they had come to the house of occurrence in order to see their cousin namely Mst. Hameed Bibi deceased but no particular reason for coming to the house of the deceased at that particular point of time had been stated by them nor any such reason had been established through any independent evidence. The medical evidence had contradicted both the above mentioned eyewitnesses inasmuch as Taveez Khan (PW1) had stated before the trial court that Mst. Hameed Bibi deceased had received a fireshot on her chest whereas the medical evidence showed that the firearm wound found on the chest of the deceased was an exit wound. Raza Khan (PW5) had stated before the trial court that both the shots fired by the appellant had hit Mst. Hameed Bibi deceased but the medical evidence confirmed that it was only fireshot which was received by the deceased and that fireshot had made an entry wound as well as an exit wound. The English version of the statement made by Raza Khan (PW5) shows that it was not just the complainant and the local police which had taken the deadbody of Mst. Hameed Bibi deceased from the spot to the hospital but on that occasion even the present appellant had accompanied them to the hospital. The Urdu version (vernacular) of the statement of the said witness, however, omitted the name of the present appellant from those who had taken the deadbody of the deceased from the house of occurrence to the hospital. It had been suggested to the eyewitnesses by the defence that the deceased had committed suicide and if that were so then accompanying of the deadbody by the present appellant to the hospital fitted well with that version. The High Court had itself concluded in so many words that the motive set up by the prosecution based upon strained relations between the spouses had not been proved. The alleged recovery of a pistol from the appellant’s possession during the investigation was legally inconsequential because the report of the Forensic Science Laboratory brought on the record shows that the recovered pistol and the secured crime-empties had been received by the Forensic Science Laboratory together on one and the same day. Criminal Appeal No. 315 of 2012 4 5. It has been argued by the learned counsel for the complainant that in the cases of Arshad Mehmood v. The State (2005 SCMR 1524) and Saeed Ahmed v. The State (2015 SCMR 710) this Court had held that where a wife of a person or any vulnerable dependent dies an unnatural death in the house of such person then some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. The learned counsel for the complainant has maintained that the stand taken by the appellant regarding suicide having been committed by the deceased was neither established by him nor did it fit into the circumstances of the case, particularly when the medical evidence contradicted the same. Be that as it may holding by this Court that some part of the onus lies on the accused person in such a case does not mean that the entire burden of proof shifts to the accused person in a case of this nature. It has already been clarified by this Court in the case of Abdul Majeed v. The State (2011 SCMR 941) that the prosecution is bound to prove its case against an accused person beyond reasonable doubt at all stages of a criminal case and in a case where the prosecution asserts presence of some eyewitnesses and such claim of the prosecution is not established by it there the accused person could not be convicted merely on the basis of a presumption that since the murder of his wife had taken place in his house, therefore, it must be he and none else who would have committed that murder. In the case in hand the eyewitnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of the incident in issue had never been established through any independent evidence, their presence at the spot had not even been mentioned by the complainant in the FIR lodged by him and the conduct displayed by the said eyewitnesses was such that they did not inspire confidence at all. The eyewitnesses produced by the prosecution had been clearly contradicted in this case by the medical evidence and no independent corroboration had been received by them through any other source inasmuch as the Criminal Appeal No. 315 of 2012 5 motive set up by the prosecution had not been proved and the alleged recovery of the weapon of offence was legally inconsequential. In a case of this nature the appellant could not have been convicted for the alleged murder merely because he happened to be the husband of the deceased. 6. For what has been discussed above a conclusion is inescapable that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded and upheld by the courts below are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case. Judge Judge Judge Islamabad 07.03.2017 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.319-L/2017 (Against the judgment dated 26.10.2016 passed by the Lahore High Court, Lahore in Criminal Appeal No.608/2015) Qari Muhammad Ishaq Ghazi …Appellant(s) VERSUS The State …Respondent(s) For the Appellant(s): Rai Bashir Ahmad, ASC For the State: Ch. Muhammad Mustafa, DPG Date of Hearing: 27.6.2019. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Surprised on 21.1.2015 by a contingent of Police Station A-Division Okara, Qari Muhammad Ishaq Ghazi, appellant herein, was found in possession of pamphlets, fraught with incendiary contents, calculated to incite hatred towards a particular sect; indicted before an Anti Terrorism Court at Lahore, he was convicted under Section 9 of the Anti Terrorism Act, 1997 and sentenced to 5-years RI with fine of Rs.100,000/-, to be recovered as arrears of land revenue with benefit of Section 382-B of the Code of Criminal Procedure, 1898 vide judgment dated 24-3-2015; his appeal in the High Court met with no better fate on 26-10-2016 vires whereof are being impugned through leave of the Court. The appeal came up before the Court after appellant's release in the wake of completion of sentence, however, the learned counsel has opted to argue the case at full length with a view to vindicate his position. 2. A multipronged tirade includes submissions, both on factual as well as legal aspects of the case; it ranges from denial, non-association of public witnesses as well as prosecution's failure to establish distribution of impugned material in the public, a sine Criminal Appeal No.319-L/2017 2 qua non, according to the learned counsel to attract the mischief of Section 9 ibid. 3. Contents of the impugned pamphlets are repugnant and abhorrent to say the least; too nauseatic to be reproduced; capable of causing most grievous offence; these contravene all the limits of decency, an obligation sanctimoniously upheld by every faith. The argument that mere possession of the impugned material by itself would not attract the mischief of the section ibid, without actual distribution, is naively beside the mark. A plain reading of Section 9, unambiguously, suggests that possession of the inflammatory material by itself is an offence even before it is distributed; the legislature intended to nip the evil in the bud and rightly so given the inflammatory potential of the crime. Arrested red-handed, objection over non-association of public witnesses to confirm the possession does not hold water either. Police officials, being functionaries of the State, are no less credible witnesses to drive home the charge in a milieu of pervasive apathy towards civic responsibilities; people prefer to recuse behind safety instead of coming forward in aid of justice. The officials who testified in the witness-box had seemingly no axe to grind, otherwise, found by us in a comfortable unison with one another. Police officials are as good witnesses as any other and their evidence is subject to same standard of proof and principles of scrutiny as applicable to any other category of witnesses; in the absence of any animus, infirmity or flaw in their depositions, their statements can be relied without demur. View taken by the Courts below, well within the remit of law, calls for no interference. Criminal Appeal fails. Dismissed. JUDGE JUDGE Lahore, the 27th of June, 2019 Not approved for reporting Azmat Ali/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE QAZI FAEZ ISA MR. JUSTICE FAISAL ARAB Criminal Appeal No.324/2011 and Criminal Appeal No.325/2011 (On appeal from the judgment dated 17.6.2010 of the Lahore High Court, Lahore passed in Crl.A.No.2124/05, Crl.Rev.No.150/05 and M.R.No.107/05). Mst. Rukhsana Begum ….Appellant (In Crl.A.324/2011) VERSUS 1. Sajjad son of Inayat 2. Mehdi son of Inayat 3. Abdul Salam son of Walayat 4. Zaraat son of Inayat 5. Abid son of Bahadar 6. Bilal son of Mehdi Khan 7. Khushi Muhammad son of Zarrat 8. Afzaal Mehdi son of Mehdi Khan 9. Masood alias Rana son of Adalat Khan 10. The State (In Crl.A.324/11) ….Respondents ------------------------ 1. Sajjad son of Inayat 2. Mehdi son of Inayat 3. Afzaal Mehdi son of Mehdi Khan 4. Masood alias Rana son of Adalat Khan …Appellants (In Crl.A.325/2011) VERSUS The State (In Crl.A.325/11) ….Respondent ___________________ In Crl.A.324/2011 For the appellant: Mr. Ansar Nawaz Mirza, ASC Syed Rifaqat Hussain Shah, AOR Respondents-2,5,6,8,9: Mr. Allah Bakhsh Gondal, ASC Respondent-10/State: Ch. Zubair Ahmed Farooq, Addl.PG, Pb Crl.As.324-325/2011 2 In Crl.A.325/2011 For the appellants: Mr. Allah Bakhsh Gondal, ASC Mian Ghulam Hussain AOR (Absent) For State: Ch. Zubair Ahmed Farooq, Addl.PG, Pb Date of hearing: 25.1.2017 JUDGMENT DOST MUHAMMAD KHAN, Judge:- Both these appeals have been filed with leave of the court dated 3.8.2011 for reappraisal of the evidence. 2. We have heard learned ASCs for the parties and the State and have carefully made the reappraisal of evidence. 3. Muhammad Faazil, while reporting the crime to Inspector/SHO Police Station, Sarai Alamgir on 22.2.2003, apparently at 1.35 A.N. shown, at some place out of police station, has alleged that on the fateful day at about 11.00 am, he alongwith his sons Muhammad Fayyaz and Muhammad Yar (deceased), Muhammad Sharif and Fayyaz son of Rahimdad after taking round of their wheat crop near ‘Khohar’ sat in the open plot and were smoking ‘HUKKA’, when in the meanwhile, Inayat son of Qutab Din armed with hatchet, Zaraat, Mehdi, Sajjad sons of Anayat armed with rifles, Abdul Salam son of Walayat armed with rifle, Abid son of Muhammad Sajjad armed with hatchet, Bilal son of Mehdi armed with hatchet, Afzaal Mehdi alias Bodi son of Mehdi Khan armed with hatchet, Khushi Muhammad son of Zaraat armed with hatchet and Muhammad Masood alias Rana son of Adalat Khan (gunman of accused Sajjad) armed with hatchet, in a concerted manner attacked them after encircling all of them. Zaraat Crl.As.324-325/2011 3 fired at Muhammad Fayyaz hitting him on his left thigh, followed by Mehdi whose fire shot hit Muhammad Fayyaz on left lower thigh then, Sajjad fired at Muhammad Fayyaz which hit the dorsal of right foot, which was broken. Abdul Salam fired at his son Muhammad Yar which hit on his left shoulder then Mehdi fired at Muhammad Yar which hit on his lower belly. As a result, both of his sons fell down and while lying on the ground, accused Inayat gave hatchet blow to Muhammad Fayyaz on the right shin/calf. Abid caused hatchet injury to Muhammad Yar on his right shoulder and thereafter, accused Masood, Abid, Bilal, Afzaal Mehdi alias Bodi and Khushi Muhammad gave hatchets blows to both of his sons one after another as a result both sustained serious injuries on the mandible, neck, forehead and skull and after satisfying that both had died, threatened us not to come near them otherwise, they would meet the same fate. Motive for the crime has been shown enmity between the two families. 4. On this report, FIR No.65 was registered for crimes under sections 302/148/149 PPC by police station Sarai Alamgir District Gujrat. 5. The Investigating Officer, inspected the spot and recovered blood stained earth from the places of the two deceased while on 29.3.2003, at the instance of Sajjad accused, .8 mm, rifle was also recovered from his residential house. 6. On 29.3.2003 at the instance of Mehdi accused one rifle apparently of Kalashnikov shape, was recovered from his house while, on the same date, at the instance of Abid accused a hatchet was Crl.As.324-325/2011 4 recovered from his house which was found blood stained. Similarly, at the instance of accused Mehdi alias Bodi alleged crime hatchet was recovered from his house which too was blood stained. In the same fashion, at the instance of accused Masood alias Rana alleged crime hatchet was recovered on the same day from his house. All these were taken into possession vide recovery memos Ex-PE, Ex-:PF, Ex-PG, Ex- PH and Ex-PJ. 7. The dead bodies along with injury sheets and inquest reports, were sent to mortuary, for postmortem examination under the supervision of escorting constables. Autopsy on both the dead bodies was conducted on the same date but at 11.00 pm and 11.30 pm respectively. 8. Rough site plan and scale site plan were prepared, during spot inspection eight crime empties of .8-mm rifle were secured from near the two dead bodies and taken into possession vide memo-Ex-PT. 9. At the conclusion of the investigation, charge sheet was submitted to the trial court, where, the prosecution examined 12 PWs in all and after recording the statement of the accused under section 342 Cr.PC., accused Zaraat, Mehdi, Sajjad and Abdul Salam were sentenced to death on two counts while accused Masood, Bilal, Afzaal, Mehdi, Khushi Muhammad and Abid were awarded life imprisonment. All the accused were also awarded three years R.I. under section 148 PPC, however, accused sentenced to life imprisonment, were given benefit of Section 382-B Cr.PC. 10. The convict appellants filed criminal appeal No.2124/2005 while the trial court sent a Murder Reference No.107/2005. On the Crl.As.324-325/2011 5 other hand, the complainant, filed Criminal Revision Petition No.150/2005, in the Lahore High Court, Lahore. 11. Through, the impugned judgment dated 17.6.2010, the appeal of present appellants (Criminal Appeal No.325/2011) i.e. of Mehdi, Masood alias Rana, Sajjad and Afzaal Mehdi was dismissed. 12. Admittedly, there was a longstanding enmity between the parties, therefore, we have to see as to what extent the witnesses who were inimical to the accused, are supported by any corroboratory evidence of independent and un-impeachable nature. 13. In the ridder to the FIR, the Investigating Officer has mentioned that the complainant Muhammad Faazil met him somewhere in the way while proceeding to the police station. In past, it had become routine practice of the police that indeed in such like crimes, the FIR/written complaints were being taken on the crime spot after preliminary investigation, however, after this court had disapproved this practice, they have invented a new way of misleading the court of law because invariably, in every second or third case, same and similar practice is adopted but with newly invented methodology. 14. In the inquest report of Muhammad Fayyaz, the time of death is shown 12.40 noon on 22.2.2003, while in the FIR, the time of occurrence is shown 11.00 am which lasted only for few minutes. The same time of death is given in the case of Muhammad Yar-deceased in the inquest report. Both the inquest reports were prepared on the crime spot as has been shown on the last page of each one. In column No.23, no crime empty has been shown present there, albeit in the Crl.As.324-325/2011 6 recovery memo and in the site plan, these empties had been shown recovered lying very close to both the dead bodies. This deliberate omission, creates reasonable doubts about the recovery. 15. Another intriguing aspect of the matter is that, according to the FIR, all the accused encircled the complainant, the PWs and the two deceased thus, the apparent object was that none could escape alive. The complainant being father of the two deceased and the head of the family was supposed to be the prime target. In fact he has vigorously pursued the case against the accused and also deposed against them as an eye witness. The site plan positions would show that, he and the other PWs were at the mercy of the assailants but being the prime target even no threat was extended to him. Blessing him with unbelievable courtesy and mercy shown to him by the accused knowing well that he and the witnesses would depose against them by leaving them unhurt, is absolutely unbelievable story. Such behavior, on the part of the accused, runs counter to natural human conduct and behavior explained in the provisions of Article 129 of the Qanun-e-Shahadat, Order 1984, therefore, the court is unable to accept such unbelievable proposition. 16. The site plan would further show that, the complainant party was having no land near or around the crime spot and even the cattle-shed where, they were, allegedly sitting, was belonging to one Nazir Ahmad, therefore, the claim of the complainant that they took a round of their crop prior to the occurrence, stood falsified. This was the only purpose for the complainant and the PWs to be present with the deceased which has not been established through any Crl.As.324-325/2011 7 documentary or other evidence. The second eye witness namely Muhammad Sharif (PW-9) undeniably belongs to another village. It was suggested to him by the defence that his village is 30-Kilometer away from the crime spot. Although he denied the same but the witness was attempting to conceal the true distance as is evident from the observation recorded by the trial court (page-76), therefore, he can be construed as a chance witness. The defence also suggested to him that his daughter is married to the nephew of the complainant which he denied. He also admitted that 2/3 cattle lifting cases were registered against him, however, he denied that one case was registered against him by the Zaraat accused/appellant. He also admitted that while coming from his village to the village of the complainant, river Jhelum intervenes. This witness, has also made dishonest improvements in his statement at the trial from the one he had given to the police under section 161 Cr.P.C. He has further admitted that, after arrival of the police at the spot, the statement of the complainant was recorded first thus, it provide strength to the view of the Court that FIR was lodged at crime spot after deliberation and consultations. 17. In ordinary parlance, a chance witness is the one who, in the normal course is not supposed to be present on the crime spot unless he offers cogent, convincing and believable explanation, justifying his presence there. 18. In the instant case, this witness has shown no work or definite purpose of visit to crime spot, therefore, his presence on the crime spot is not believable and his testimony, for this reason alone is Crl.As.324-325/2011 8 rejected. More so, when for reaching the spot, he had confronted surging waves of fast flowing water of the river. A single doubt reasonably showing that a witness/witnesses’ presence on the crime spot was doubtful when a tragedy takes place, would be sufficient to discard his/their testimony as a whole. This principle may be pressed into service in cases where such witness/witnesses are seriously inimical or appears to be a chance witness because judicial mind would remain disturbed about the truthfulness of the testimony of such witnesses provide in a murder case, is a fundamental principle of our criminal justice system. 19. As discussed earlier, the complainant was at the mercy of the accused as according to his version he alongwith the two deceased was encircled and was under direct and immediate threat of death but he was still able to give photographic narration of the occurrence by attributing individual role to each one of the several accused inflicting injuries with hatchets and fire arms on specific parts of the bodies of the two deceased. This fact, by itself is sufficient, to disbelieve his presence at the crime spot at the fateful time. 20. As we have already declared that, investigation conducted in this case, was neither fair nor honest, therefore, the recovery effected of the so-called crime weapons has also lost its legal worth which otherwise, is not implicating the appellants except Sajjad. 21. It is also pertinent to mention here, that the attesting witness to all these recoveries of incriminating articles is Muhammad Sharif (PW-9) whose testimony we have already disbelieved as a whole. It is fundamental principle of justice that corroboratory Crl.As.324-325/2011 9 evidence, must come from independent source providing strength and endorsement to the account of the eye witnesses, therefore, eye witnesses, in the absence of extraordinary and very exceptional and rare circumstances, cannot corroborate themselves by becoming attesting witness/witnesses to the recovery of crime articles. In other words, eye witnesses cannot corroborate themselves but corroboratory evidence must come from independent source and shall be supported by independent witnesses other than eye witnesses, thus, these recoveries are equally of no judicial efficacy. 22. In this case, some of the accused have been killed/murdered allegedly by the complainant party and some died during imprisonment thus, the private execution to death of some of the accused, by the complainant party, would suggest that they themselves took the revenge from those, who were involved in the crime albeit, the learned counsel for the complainant strongly opposed this view but he was unable to controvert that some of the acquitted accused have been killed. 23. In view of the analysis and combined study of the entire evidence by way of reappraisal, with much care and caution, we are of the considered view, that the prosecution has failed to prove its case against the appellants beyond any reasonable doubt, therefore, this appeal (Criminal Appeal No.325/2011) is allowed and while extending benefit of doubt to the appellants, they are acquitted of all the charges leveled against them. For the reasons given above, Criminal Appeal No.324/2011 filed by Mst. Rukhsana Begum is dismissed. 24. These are the detailed reasons for our short order of even date 25.1.2017 which is reproduced below: Crl.As.324-325/2011 10 “Criminal Appeal No. 324 of 2011: For reasons to be recorded later, this appeal is dismissed. Criminal Appeal No. 325 of 2011: Per report of the Superintendent, District Prison, Gujrat and as was admitted at the bar by the learned ASC for the appellants, Sajjad son of Muhammad Inayat one of the appellants has died, therefore, to his extent this appeal stands abated, while the convictions and sentences awarded to other appellants/accused, namely, Mehdi son of Inayat, Afzaal Mehdi son of Mehdi Khan and Masood alias Rana son of Adalat Khan by the learned High Court vide the impugned judgment dated 17.6.2010 are set aside and they are acquitted of all the charges leveled against them. They be set free forthwith, if not required in any other case. Detail reasons to follow separately.” Judge Judge Judge Islamabad, the 25th January, 2017 Sarfraz/-‘ ‘APPROVED FOR REPORTING’

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Sardar Tariq Masood Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal Nos.324 & 325 of 2021 (Against the judgment dated 24.10.2017 passed by the Lahore High Court Lahore in Cr.A. No.962-J/2012) Shah Zaib & another (in Cr.A. 324/2021) Bilawal (in Cr.A. 325/2021) …Appellant(s) Versus The State (in both cases) …Respondent(s) For the Appellant(s): Barrister Salman Safdar, ASC (in Cr. A. 324/2021) Syed Rifaqat Hussain Shah, ASC (in Cr. A. 325/2021) For the State: Mirza Abid Majeed, Deputy Prosecutor General Punjab For the Complainant: Mr. Akram Gondal, ASC Mr. M. Sharif Janjua, AOR Date of Hearing: 17.02.2022. JUDGMENT Qazi Muhammad Amin Ahmed, J.:- Bilawal son of Muhammad Boota, Shahzaib son of Muhammad Saeed and Shamshad Begum wife of Muhammad Saleem impugn, through leave of the Court, judgment dated 24.10.2017 by a learned Division Bench of the Lahore High Court Lahore whereby guilty verdict returned to them by the learned Judge Anti-Terrorism-II, Gujranwala was upheld albeit with minor modification. 2. According to the prosecution, set up on the complaint of Irfan Saeed (PW-6), his brother Farhan Saeed (PW-7) left home for his factory in a car on 24.11.2014, spotted shortly whereafter by the complainant at G.T. Road. Upon query, from amongst the people gathered around, Muhammad Akbar (PW-8) and Adeel Saad (given up) informed the complainant that the appellants along with the fourth companion intercepted Farhan Saeed and whisked him towards Lahore in their car. According to the complainant, he found Criminal Appeal Nos.324 & 325 of 2021 2 a chit lying in the car demanding ransom of rupees one crore. The incident was reported to the police at 1:45 p.m. pursuant whereto, a police contingent chased the suspects and engaged them near Poll 170 North on the Motorway. The accused resisted the contingent and in exchange of fire, one of them Nadeem received fire shots and succumbed to his injuries in the hospital. The abductee, in handcuffs, was rescued while the appellants were arrested at the spot. The appellants claimed trial, pursuant whereto, prosecution produced a number of witnesses; of them, Irfan Saeed (PW-6), Farhan Saeed, (PW-7) and Muhammad Akrbar (PW-8) are prominent in the array; in a unison, the witnesses reiterated the prosecution case with details of events subsequent thereto. According to the accused, the abductee was teasing women at Morr Emanabad that ignited a situation there, subsequently graduated into a fake police encounter maneuvered by the alleged abductee to settle a score over a monetary dispute with Nadeem deceased. Unimpressed by the plea, the learned trial Judge convicted and sentenced the appellants as under: “U/s 365-A PPC Imprisonment for life to the each convict and the whole property of the each convict shall also liale to be forfeiture in favour of the State U/s 7(e) ATA Imprisonment for life to the each convict and the whole property of the each convict shall also liale to be forfeiture in favour of the State U/s 337-A(i) PPC Imprisonment for one year RI to each convict alongwith payment of amount of Rs.10000/- as Daman to the victim U/s 337-F(i) PPC Imprisonment for one year RI to each convict alongwith payment of amount of Rs.10000/- as Daman to the victim” The High Court viewed the trial Court’s judgment with approval, however, set aside appellants’ sentences recorded under sections 337 A(i), F(i) PPC on account of composition signified by the injured/ abductee. 3. Learned counsel for the appellants contend that occurrence did not take place in the manner as alleged in the crime report; that presence of Shamshad Begum with a minor child in her lap suggests a scenario diametrically inconsistent with the hypothesis of abduction for ransom. Conceding partial composition, the learned counsel, nonetheless, has strenuously argued that story of a readily available written-note requires a pinch of salt. Totality of Criminal Appeal Nos.324 & 325 of 2021 3 circumstances relied upon by the prosecution itself unmistakably suggest that the prosecution did not come up with a whole truth. Alternately, he has argued that at the most a case of abduction simpliciter is made out and that he would be more than satisfied with a corresponding modification in the conviction. The learned Law Officer has defended the impugned judgment; he argued that the appellants were arrested red-handed and the abductee, in handcuffs, was rescued shortly after he was taken away on a gunpoint, from the car with one of the appellants on wheel. 4. Heard. Record perused. 5. Appellants’ red-handed arrest, notwithstanding, a female with a child in their company with handcuffed abductee on board the vehicle, overtaken by the police contingent shortly after registration of a case straight at a police station, compounded by violent death of one of the captors, nonetheless, does not allow a space to throw out the prosecution case on the basis of grounds agitated at the bar. However, argument that the prosecution does not possess enough evidence to conclusively hypothesize the story of abduction for ransom, is not entirely beside the mark inasmuch as mere reliance upon a hand-written note in the abandoned vehicle, that too, in an encounter, seemingly unanticipated, and events subsequent thereto are the factors more vividly spelling out abduction rather simpliciter than the one calculated to fetch ransom. On appraisal of entire evidence, we are inclined to partially allow the appeals by converting appellants’ conviction from section 365-A to section 365 PPC and sentence them with 7-years RI with a direction to pay fine in the sum of Rs.50,000/- each or to undergo six months SI in default thereof; pre-trial period inclusive. Convection under section 7(e) of the Anti Terrorism Act, 1997 is set aside with consequences concomitant thereof. Appeals partly allowed. Judge Judge Judge Islamabad, the 17th February, 2022 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Dost Muhammad Khan Mr. Justice Qazi Faez Isa Criminal Appeal No. 326 of 2013 (Against the judgment dated 03.06.2013 passed by the Lahore High Court, Lahore in Criminal Appeal No. 76-J of 2009 and Murder Reference No. 41 of 2009) Asad Khan …Appellant versus The State …Respondent For the appellant: Syeda B. H. Shah, ASC For the State: Mr. Muhammad Jaffar, Deputy Prosecutor-General, Punjab Date of hearing: 24.05.2017 JUDGMENT Asif Saeed Khan Khosa, J.: Asad Khan appellant had allegedly murdered his wife namely Mst. Zahida Shamim and their two minor children namely Muhammad Arshad, aged about five years, and Muhammad Arman, aged about 7/8 months, inside the house of the appellant with the use of a hatchet at about 10.30 A.M. on 30.07.2008 in village Tala Baangi Khel in the area of Police Station Baangi Khel, District Mianwali. It was alleged by the prosecution that the said murders had been committed by the appellant in the backdrop of strained relations between the appellant and his wife. With the said allegations the appellant was booked in case FIR No. 27 registered at the above mentioned Police Criminal Appeal No. 326 of 2013 2 Station on the same day and after a regular trial the appellant was convicted by the trial court on three counts of the charge under section 302(b), PPC and was sentenced to death on all the counts and to pay compensation which convictions and sentences of the appellant were later on upheld and confirmed by the High Court. Hence, the present appeal by leave of this Court granted on 21.10.2013. 2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise. 3. According the prosecution the incident in issue had been witnessed by Ghulam Jan complainant (PW9), father of Mst. Zahida Shamim deceased and a grand father of Muhammad Arshad and Muhammad Arman deceased, Khizar Hayat and Jan Muhammad but during the trial Khizar Hayat and Jan Muhammad PWs had been given up by the prosecution as having been won over as they had refused to support the prosecution’s case against the appellant. The solitary eyewitness deposing before the trial court was Ghulam Jan complainant who was not only the father of one of the deceased but was also admittedly a chance witness who had come to the place of occurrence from District Faisalabad situated more than 200 miles away from the scene of the crime. The stated reason for visit of the complainant to the spot had never been substantiated or established before the trial court through any independent evidence whatsoever. Muhammad Tariq Mehmood (DW1) had produced a register of attendance before the trial court establishing that on 29.07.2008 as well as on 30.07.2008 Ghulam Jan complainant was very much in attendance at his place of work in Faisalabad and there was no earthly reason to attribute any motive to the said witness to falsely depose before the trial court in order to save the appellant’s skin. It is important to mention here that the very first sentence of the FIR lodged by the complainant showed that he admitted working as a regular employee at Faisalabad and he had never claimed that on the day of occurrence Criminal Appeal No. 326 of 2013 3 he was on leave. The said solitary eyewitness produced by the prosecution had failed to receive any independent corroboration or support inasmuch as the motive set up by the prosecution was never established through any independent evidence, the alleged recovery of a hatchet from the appellant’s possession during the investigation was unbelievable as the said hatchet had statedly been recovered from an open field belonging to somebody else and the investigating officer had conceded before the trial court that at the time of its recovery the hatchet was not stained with blood. The medical evidence did not support the case of the prosecution for the simple reason that post-mortem examination of the deadbodies had been conducted after more than 17/18 hours of the alleged occurrence. The said delay in conducting post-mortem examination of the deadbodies indicated that time had been consumed by the complainant party and the local police in procuring and planting eyewitnesses and in cooking up a story for the prosecution. All these factors have gone a long way in convincing us that the prosecution had not been able to prove its case against the appellant beyond reasonable doubt. 4. It had been held by this Court in the case of Arshad Mehmood v. The State (2005 SCMR 1524) that where a wife of a person dies an unnatural death in the house of such person there some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. In the later case of Saeed Ahmed v. The State (2015 SCMR 710) the said legal position had been elaborated and it had been held that an accused person is under some kind of an obligation to explain the circumstances in which his vulnerable dependent had met an unnatural death within the confines of his house. It had, however, been held in the case of Abdul Majeed v. The State (2011 SCMR 941) that where the entire case of the prosecution stands demolished or is found to be utterly unbelievable there an accused person cannot be convicted merely because he did not explain the circumstances in which his wife or some vulnerable dependent had lost his life. In such a case the entire burden of proof cannot be shifted to him in that regard if Criminal Appeal No. 326 of 2013 4 the case of the prosecution itself collapses. The present case is a case of the latter category wherein the entire case of the prosecution has been found by us to be utterly unbelievable and the same stands demolished and, thus, we cannot sustain the appellant’s conviction and sentence merely on the basis of an inference or a supposition qua his involvement. 5. For what has been discussed above this appeal is allowed, the convictions and sentences of the appellant recorded and upheld by the courts below are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case. Judge Judge Judge Islamabad 24.05.2017 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Gulzar Ahmed Mr. Justice Dost Muhammad Khan Criminal Appeal No. 337 of 2015 (Against the judgment dated 25.05.2015 passed by the High Court of Balochistan, Quetta in Criminal Revision No. 32 of 2015) Khuda-e-Noor …Appellant versus The State …Respondent For the appellant: Mr. Kamran Murtaza, ASC For the State: Mr. Tahir Iqbal Khattak, Additional Prosecutor-General, Balochistan On Court’s call: Mr. Sohail Mehmood, Deputy Attorney-General for Pakistan Date of hearing: 11.11.2015 JUDGMENT Asif Saeed Khan Khosa, J.: The appellant is an accused person in case FIR No. 19 registered at Levies Station Dasht, District Mastung on 16.06.2014 in respect of an offence under section 302, PPC read with section 34, PPC. According to the allegation leveled in the FIR the appellant and his co-accused had murdered one Mst. Samreen, a sister of the appellant, because she was living with her mother after her mother had obtained a divorce from the deceased’s father which factor had annoyed the accused party. After completion of the investigation a Challan in respect of this case was submitted before the learned Sessions Judge, Criminal Appeal No. 337 of 2015 2 Mastung and during the trial the prosecution improved its case vis- à-vis the motive and it was alleged that Mst. Samreen deceased was not enjoying good moral character as she had developed illicit relations with one Atta Ullah and due to that reason she had been done to death by the appellant and his co-accused. On the basis of such factor having become available on the record the learned Sessions Judge, Mastung formed an opinion that the case in hand was one of honour killing and such killing amounted to “terrorism” within the purview of section 6(2)(g) of the Anti-Terrorism Act, 1997 and, thus, the case against the appellant and his co-accused was transferred to an Anti-Terrorism Court. While forming such view the learned Sessions Judge, Mastung had been influenced by the law declared by the High Court of Balochistan, Quetta in the case of Gul Muhammad v. The State (PLD 2012 Balochistan 22). The said order passed by the learned Sessions Judge, Mastung was assailed by the appellant through a revision petition filed before the High Court of Balochistan, Quetta which revision petition was dismissed by the High Court through the impugned order dated 25.05.2015. Hence, the present appeal by leave of this Court granted on 12.08.2015. 2. We have heard the learned counsel for the appellant, the learned Deputy Attorney-General for Pakistan and the learned Additional Prosecutor-General, Balochistan appearing for the State and have gone through the record of the case with their assistance. 3. The crucial question involved in this appeal is as to whether the learned Sessions Judge, Mastung was justified in holding that the case in hand was one of honour killing and, thus, it was a case of “terrorism” attracting the exclusive jurisdiction of an Anti- Terrorism Court or not. It also needs to be examined as to whether the High Court of Balochistan, Quetta was justified in declaring in the case of Gul Muhammad (supra) that by virtue of the provisions of section 6(2)(g) of the Anti-Terrorism Act, 1997 all cases of honour killing are to be tried by an Anti-Terrorism Court. We have minutely gone through the said judgment passed by the High Criminal Appeal No. 337 of 2015 3 Court of Balochistan, Quetta and have found that for holding that all cases of honour killing attracted the definition of “terrorism” the High Court had only relied upon the provisions of section 6(2)(g) of the Anti-Terrorism Act, 1997 without appreciating that by virtue of the provisions of section 6 of the Anti-Terrorism Act, 1997 any action falling within any of the categories of cases mentioned in subsection (2) of section 6 of the Anti-Terrorism Act, 1997 could not be accepted or termed as “terrorism” unless the said action was accompanied by a “design” or “purpose” specified in section 6(1)(b) or (c) of the said Act. If the interpretation of section 6(2)(g) of the Anti-Terrorism Act, 1997 advanced by the High Court of Balochistan, Quetta in the said judgment were to be accepted as correct then all cases of a person taking the law in his own hands are to be declared or accepted as cases of terrorism but that surely was not the intention of the legislature. The provisions of section 6 of the Anti-Terrorism Act, 1997 which define “terrorism” clearly show that the said section is divided into two main parts, i.e. the first part contained in section 6(1)(b) and (c) of the said Act dealing with the mens rea mentioning the “design” or the “purpose” behind an action and the second part falling in section 6(2) of the said Act specifying the actions which, if coupled with the mens rea mentioned above, would constitute the offence of “terrorism”. This scheme of section 6 of the Anti-Terrorism Act, 1997 had unfortunately not been considered by the High Court of Balochistan, Quetta while rendering the judgment mentioned above and, thus, we have every reason to declare that the said judgment passed by the High Court of Balochistan, Quetta had not laid down the law correctly and had in fact misconceived the legal position contemplated by section 6 of the Anti-Terrorism Act, 1997. 4. The case in hand was a case of a private motive set up in the FIR and during the trial the motive set up in the FIR was changed by the prosecution and an element of honour killing was introduced but even that did not change the character of the offence which was nothing but a private offence committed in the privacy of a home with no design or purpose contemplated by Criminal Appeal No. 337 of 2015 4 section 6(1)(b) or (c) of the Anti-Terrorism Act, 1997. We have, thus, entertained no manner of doubt that the allegations leveled against the appellant and his co-accused in the present criminal case did not attract the jurisdiction of an Anti-Terrorism Court, the learned Sessions Judge, Mastung was not justified in transferring the case to an Anti-Terrorism Court and the High Court was also not legally correct in dismissing the appellant’s revision petition. This appeal is, therefore, allowed, the impugned orders passed by the learned Sessions Judge, Mastung as well as the High Court of Balochistan, Quetta are set aside and it is declared that the appellant’s case is to be tried by a court of ordinary jurisdiction. Judge Judge Judge Islamabad 11.11.2015 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa, CJ Mr. Justice Maqbool Baqar Mr. Justice Syed Mansoor Ali Shah Criminal Appeals No. 34-L and 35-L of 2018 (Against the judgment dated 04.06.2018 passed by the Lahore High Court, Lahore in Criminal Revisions No. 194537 and 198776 of 2018) Khadija Siddiqui (in Cr. A. 34-L of 2018) The State (in Cr. A. 35-L of 2018) …Appellants versus Shah Hussain, etc. (in Cr. A. 34-L of 2018) Shah Hussain (in Cr. A. 35-L of 2018) …Respondents For the appellants: Barrister Salman Safdar, ASC with the appellant in person (in Cr. A. 34-L of 2018) Mr. Ahmed Raza Gillani, Additional Prosecutor-General, Punjab (in Cr. A. 35-L of 2018) For respondent No. 1: Dr. Khalid Ranjha, Sr. ASC with respondent No. 1 in person (in both cases) Date of hearing: 23.01.2019 JUDGMENT Asif Saeed Khan Khosa, J.: On 23.01.2019 both these appeals had been allowed and disposed of by us through a short order which read as follows: “For the reasons to be recorded later these appeals are allowed, the impugned consolidated judgment passed by the High Court is set aside and the judgment passed by the learned Additional Sessions Judge, Lahore on 30.03.2018 convicting and sentencing Criminal Appeals No. 34-L and 35-L of 2018 2 respondent No. 1 for various offences is restored. The said respondent shall be taken into custody and shall be lodged in a prison so as to serve his remaining sentences.” The following are the reasons for the said short order passed by us on 23.01.2019. 2. According to the prosecution respondent No. 1 namely Shah Hussain had given multiple Chhurri blows to his class-fellow namely Khadija Siddiqui appellant and her minor sister namely Sofia Siddiqui at about 02.00 P.M. on 03.05.2016 in and outside a motorcar belonging to the victims’ family parked on a roadside in front of the Ambassador Hotel, Davis Road, Lahore and in respect of the said incident an information was laid by a driver of the victims’ family namely Riaz Ahmed before a police officer at 03.23 P.M. on the same day at the Services Hospital, Lahore whereafter formal FIR No. 300 was registered at Police Station Civil Lines, Lahore at 03.45 P.M. during the same afternoon. As a consequence of the said FIR respondent No. 1 was arrested by the local police and upon completion of all the necessary steps taken during the investigation a Challan was submitted against him. A charge in that regard was framed by the trial court against respondent No. 1 to which he pleaded not guilty and claimed a trial. During the trial the prosecution produced twelve witnesses in support of its case against respondent No. 1. Riaz Ahmed complainant (PW5), Khadija Siddiqui (PW6) and Sofia Siddiqui (PW7) furnished the ocular account of the incident in issue and out of the said witnesses Khadija Siddiqui (PW6) and Sofia Siddiqui (PW7) were injured eyewitnesses. The medical evidence was provided by Dr. Rozina Mustafa (PW11) who had medically examined both the injured victims soon after the alleged occurrence and Javed Iqbal, Incharge Investigation (PW12) stated about the various steps taken by him during the investigation of this case. The remaining evidence produced by the prosecution was more or less formal in nature. In his statement recorded under section 342, Cr.P.C. the appellant denied and controverted all the allegations of fact leveled against him by the prosecution and professed his innocence. He, however, Criminal Appeals No. 34-L and 35-L of 2018 3 opted not to make a statement on oath under section 340(2), Cr.P.C. and did not produce any evidence in his defence. Upon conclusion of the trial the learned Magistrate Section 30, Lahore Cantonment convicted and sentenced respondent No. 1 on 29.07.2017 for various offences the details whereof are as follows: i. Under section 324, P.P.C. to seven years rigorous imprisonment with fine of Rs. 50,000/- and in default of the payment thereof, to further undergo simple imprisonment for one year; ii. Under section 337-A(i), P.P.C. to two years rigorous imprisonment with Daman of Rs. 50,000/-; iii. Under section 337-A(ii), P.P.C. to five years rigorous imprisonment with Arsh of Rs. 84,016/-; iv. Under section 337-F(i), P.P.C. to one year rigorous imprisonment with Daman of Rs. 50,000/-; v. Under section 337-F(ii), P.P.C. to three years rigorous imprisonment with Daman of Rs. 50,000/-; vi. Under section 337-F(iv), P.P.C. to five years rigorous imprisonment with Daman of Rs. 50,000/-. The accused was ordered not to be released till the payment of Arsh and Daman even after completion of sentence of imprisonment. All the sentences were ordered to be run concurrently and benefit of section 382-B, Cr.P.C. was extended. Respondent No. 1 challenged his convictions and sentences before the Court of Session, Lahore through an appeal which was partly allowed by a learned Additional Sessions Judge, Lahore vide judgment dated 30.03.2018 and various convictions and sentences passed by the trial court against respondent No. 1 were modified as follows: i. Under section 324, P.P.C. for attempting to commit Qatal- i-Amd of Khadija Siddiqi, sentenced to five years rigorous imprisonment with fine of Rs. 50,000/- and in default of the payment of fine to further undergo simple imprisonment for three months; ii. Under section 337-A(ii), P.P.C. for causing injury on the left side of forehead of Khadija Siddiqi, sentenced to three years rigorous imprisonment and to pay Arsh Rs. 84,016/- to the injured Khadija Siddiqi; iii. Under section 337-F(ii), P.P.C. for causing three injuries to Khadija Siddiqi to pay Daman Rs. 50,000/- to Khadija Siddiqi; Criminal Appeals No. 34-L and 35-L of 2018 4 iv. Under section 337-F(ii), P.P.C. for causing injury on the person of Khadija Siddiqi to pay Daman of Rs. 40,000/- to Khadija Siddiqi; v. Under section 337-F(ii), P.P.C. for causing injury to Khadija Siddiqi and sentenced to pay Daman of Rs. 40,000/- to Khadija Siddiqi; vi. Under section 337-F(i), P.P.C. for causing injury to Khadija Siddiqi and sentenced to pay Daman of Rs. 10,000/- to Khadija Siddiqi; vii. Under section 337-F(i), P.P.C. for causing simple injury to Sufia Siddiqi, sentenced to six months rigorous imprisonment with Daman of Rs. 30,000/- to Sufia Siddiqi. All the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. was extended. Thereafter a revision petition was filed by respondent No. 1 before the Lahore High Court, Lahore assailing his convictions and sentences whereas another revision petition was filed by Riaz Ahmed complainant seeking enhancement of respondent No. 1’s sentences and vide consolidated judgment dated 04.06.2018 a learned Judge-in-Chamber of the Lahore High Court, Lahore allowed the revision petition field by respondent No. 1, set aside all the convictions and sentences of respondent No. 1 and acquitted him of the charge whereas the revision petition filed by the complainant was dismissed. Hence, the present appeals by leave of this Court granted on 13.06.2018. 3. We have heard the learned counsel for the parties at some length and have gone through the record of the case with their assistance. 4. It has been argued by the learned counsel for Khadija Siddiqui appellant that the prosecution had produced three eyewitnesses before the trial court out of whom Khadija Siddiqui (PW6) and Sofia Siddiqui (PW7) were injured witnesses whose presence at the spot could not be doubted and the third eyewitness namely Riaz Ahmad complainant (PW5) was an independent witness having no reason to falsely implicate respondent No. 1 in a case of this nature. He has also argued that the case in hand is a Criminal Appeals No. 34-L and 35-L of 2018 5 classic case of non-reading of the record by the High Court because the statement made by one of the injured eyewitnesses namely Sofia Siddiqui (PW7) had not even been discussed by the High Court in the impugned judgment passed by it whereas the merits of the statement made by Riaz Ahmad complainant (PW5) had not even been adverted to by the High Court. He has further argued that the High Court had also misread some crucial parts of the record of the case which misreading had clouded its vision and had distorted its perception of the facts of the case vitiating the impugned judgment passed by it. The learned counsel has also contended that the present case was a case of a broad daylight occurrence taking place at a thickly populated area of Lahore, an FIR had been lodged in respect of the occurrence with sufficient promptitude, the eyewitnesses produced by the prosecution had consistently pointed their accusing fingers towards respondent No. 1 as the sole perpetrator of the alleged offences, the medical evidence had provided full support to the ocular account, the background of good relations between the assailant and the victims turning sour was admitted by both the parties, the trial court as well as the appellate court had concurred in their conclusion regarding guilt of respondent No. 1 having been proved to the hilt and the High Courts was not justified in acquitting the said respondent. It has been maintained by the learned counsel that the impugned acquittal of respondent No. 1 by the High Court, based primarily upon serious misreading and non-reading of the relevant record, has occasioned grave miscarriage of justice clamouring for interference in the matter by this Court. The learned Additional Prosecutor-General, Punjab appearing for the State/appellant has adopted and supported the contentions of the learned counsel for Khadija Siddiqui appellant and has also prayed for setting aside of the impugned judgment passed by the High Court and restoration of the judgment passed by the learned Additional Sessions judge, Lahore. As against that the learned counsel for respondent No. 1 has argued that the infirmities in the prosecution’s case against the respondent noticed by the High Court in the impugned judgment passed by it had rendered the Criminal Appeals No. 34-L and 35-L of 2018 6 allegations leveled against him quite doubtful; the misreading and non-reading of the record by the High Court highlighted by the learned counsel for the appellants were not serious enough to dislodge the High Court’s judgment in its entirety; the High Court had recorded very cogent reasons for concluding that the circumstances in which respondent No. 1 had belatedly been implicated in this case were not free from serious doubts; and the law is settled that a judgment of acquittal may not be interfered with by a higher Court in the absence of perversity in the same. 5. After hearing the learned counsel for the parties and going through the record it has straightaway been observed by us that the incident in issue had taken place in broad daylight and at a place which was thickly populated and was buzzing with activity at the relevant time. An FIR in respect of the said incident had been lodged with sufficient promptitude and the medical examination of the injured victims had also been conducted without loss of time. The ocular account of the said occurrence had been furnished before the trial court by three eyewitnesses namely Riaz Ahmed complainant (PW5), Khadija Siddiqui (PW6) and Sofia Siddiqui (PW7) out of whom the last two witnesses had the stamp of injuries on their bodies vouchsafing their presence at the scene of the crime at the relevant time. The said eyewitnesses had consistently pointed their accusing fingers towards respondent No. 1 as the sole perpetrator of the alleged offences and ostensibly they had no earthly reason to falsely implicate respondent No. 1 in a case of this nature or to substitute him for the actual culprit. The medical evidence had provided sufficient support to the ocular account furnished by the above mentioned eyewitnesses and the trial court as well as the appellate court had found the evidence produced by the prosecution to be worthy of implicit reliance but the High Court had taken a different view of the matter and had acquitted respondent No. 1 of the charge. The reasons prevailing with the High Court for acquitting respondent No. 1 of the charge may be summed up as follows: Criminal Appeals No. 34-L and 35-L of 2018 7 i) The blood-stained clothes of the injured victims had not been produced before the investigating officer and were not secured during the investigation. ii) Respondent No. 1 was a class-fellow of Khadija Siddiqui (PW6) and they were known to each other quite well but the said injured victim had nominated respondent No. 1 as the culprit for the first time on 08.05.2016, i.e. after five days of the occurrence despite the fact that Dr. Rozina Mustafa (PW11) had stated before the trial court that at the time of arrival of the said injured victim at the hospital she was well oriented and on that occasion the victim had only stated that a boy had attacked her and had not named respondent No. 1 as that boy. iii) While medically examining Khadija Siddiqui (PW6) Dr. Rozina Mustafa (PW11) had initially noticed only eleven injuries sustained by the said victim but subsequently the said number had been swelled to twenty-three and such additional injuries had been mentioned by the said doctor on the basis of the operation notes of the victim and not on the basis of her own examination of the victim. The Doctors conducting the operation on Khadija Siddiqui (PW6) had not been produced during the trial. iv) If the condition of Khadija Siddiqui (PW6) was critical soon after the occurrence then she could not have gone to the Illaqa Magistrate seeking an order for her medical examination. v) Khadija Siddiqui (PW6) had failed to appear before the District Standing Medical Board for fresh examination of her injuries despite having repeatedly been summoned by the Board for the purpose. vi) According to the eyewitnesses there was profuse bleeding of the victims inside their motorcar but admittedly no foot-mat or any other article stained with blood was taken into possession during the investigation from inside the said motorcar nor any such article had been produced before the trial court. vii) Riaz Ahmed complainant (PW5) had not informed the parents of the victims or any other member of their family about the incident and Criminal Appeals No. 34-L and 35-L of 2018 8 had proceeded to lodge an FIR in respect of the same on his own. viii) The motive set up by the prosecution had not been proved by it because according to Khadija Siddiqui (PW6) respondent No. 1 used to harass her and wanted to marry her but she had rejected the proposal whereas the said stance of Khadija Siddiqui (PW6) had been contradicted by her letter brought on the record as Exhibit-DW wherein she had volunteered and had repeatedly stated that she was ready and eager to marry respondent No. 1. ix) The alleged recovery of a Chhurri at the instance of respondent No. 1 was legally inconsequential because the said recovery had been affected after about five months of the incident in issue, the recovered Chhurri was not stained with blood and the recovery had been affected from an open place which was accessible to all and sundry. x) The alleged recovery of a helmet statedly belonging to respondent No. 1 from inside the motorcar of the victims was not readily believable because the recovered helmet was of red colour whereas Asghar Ali, F.C. (PW10), a witness of the said recovery, had clearly stated before the trial court that the recovered helmet was of black colour. xi) The statements made by the injured victims namely Khadija Siddiqui (PW6) and Sofia Siddiqui (PW7) did not inspire confidence because Khadija Siddiqui (PW6) had not divulged the true and complete tale. With these considerations weighing with the High Court it had been concluded by it that the occurrence might have taken place and the two injured victims might have received their injuries during the same occurrence but the manner in which the occurrence had taken place and its background might have been quite different from those described and stated by the said victims. 6. Taking up the above mentioned grounds weighing with the High Court for disbelieving the case of the prosecution and for acquitting respondent No. 1 one by one we note that the first ground prevailing with the High Court was based upon a Criminal Appeals No. 34-L and 35-L of 2018 9 misreading of the record on its part. According to the High Court the blood-stained clothes of the injured victims had not been produced or secured during the investigation whereas the record of the case shows that blood-stained clothes of Sofia Siddiqui (PW7) had not only been produced and secured during the investigation but a memorandum of such recovery had duly been exhibited before the trial court as Exhibit-PG. 7. The second consideration weighing with the High Court based upon failure of Khadija Siddiqui (PW6) to name respondent No. 1 straightaway as the culprit despite their previous intimacy has been found by us to be based upon an incomplete reading of the record of the case by the High Court. The statement made before the trial court by Dr. Rozina Mustafa (PW11) had clearly established that immediately upon receipt of her injuries Khadija Siddiqui (PW6) had become semi-conscious and in the next few days repeated attempts made by the investigating officer to record her statement had failed because according to the recorded opinion of the concerned doctor the said victim was unfit to make any statement. It is true that upon having been taken to the hospital immediately after the occurrence Khadija Siddiqui (PW6) had stated before Dr. Rozina Mustafa (PW11) that a boy had attacked her but the statement made by the said doctor before the trial court clearly shows that at the relevant time the condition of Khadija Siddiqui (PW6) was critical and the surgeons were ready to operate upon her and when Dr. Rozina Mustafa (PW11) wanted to know from the victim the identity of the boy the said doctor was required by the surgeons to immediately leave the operation theatre so that they could commence the operation straightaway in order to save the victim’s life. In the next few days the said injured victim had remained under the effect of anesthesia and soon after regaining consciousness after a few days she had divulged the name of respondent No. 1 as the culprit. Unfortunately this part of the statement made by Dr. Rozina Mustafa (PW11) had been completely ignored by the High Court. Criminal Appeals No. 34-L and 35-L of 2018 10 8. The next consideration weighing with the High Court regarding Dr. Rozina Mustafa (PW11) noticing eleven injuries on the body of Khadija Siddiqui (PW6) ignored that part of the statement made by the said doctor before the trial court according to which when the said doctor was examining the victim her condition was critical and the surgeons ready for the operation had required the said doctor to leave the operation theatre and, thus, recording of the remaining injuries of the victim by that doctor in the Medico-legal Certificate being prepared by her had been deferred till after the operation and the said task was subsequently completed by her on the basis of the operation notes because for the next many days the victim was unconscious and under the effect of anesthesia. Be that as it may the fact remains that even sustaining of eleven injuries by the said victim instead of twenty- three could have conveniently attracted the provisions of section 324, PPC and nothing actually turned in this case on the fact that eleven of the victim’s injuries had been recorded by the concerned doctor in the first phase whereas the remaining injuries had been recorded by the said doctor at a subsequent stage after the operation of the victim. 9. As regards the next consideration weighing with the High Court we have been surprised to notice that according to the High Court the injured victim namely Khadija Siddiqui (PW6) had gone to the Illaqa Magistrate first seeking an order regarding conducting of her medical examination and thereafter she was medically examined on the basis of such an order passed by the Illaqa Magistrate. This consideration weighing with the High Court was squarely based upon a misreading of the documents brought on the record as Exhibit-PN and Exhibit-PJ which clearly established that Khadija Siddiqui (PW6) was medically examined on 03.05.2016 without any intervention or order of a Magistrate and on the next day, i.e. 04.05.2016 the investigating officer had filed an application before the Illaqa Magistrate seeking a direction regarding supply of a copy of the Medico-legal Certificate pertaining to Sofia Siddiqui (PW7) to him. We are constrained to Criminal Appeals No. 34-L and 35-L of 2018 11 observe that the High Court had not demonstrated the requisite care in examining the record of this case and resultantly such a glaring misreading of the record on the part of the High Court had been occasioned. We expect the High Court to do better in this regard in future. 10. The High Court had also observed that Khadija Siddiqui (PW6) had failed to appear before the District Standing Medical Board for re-examination of her injuries and an adverse inference had been drawn by the High Court in that regard against the prosecution. The record, however, shows that the order passed by the Illaqa Magistrate requiring Khadija Siddiqui (PW6) to appear before the District Standing Medical Board had been suspended by the High Court through a Writ Petition filed against that order and that order never stood revived till the conclusion of the trial. Unfortunately this ground weighing with the High Court was also based upon a serious non-reading of the relevant record of the case by it. 11. It had also weighed with the High Court that no blood- stained foot-mat or any other article had been secured by the investigating officer from inside the relevant motorcar but the High Court had failed to read the statement made by the investigating officer of this case namely Javed Iqbal, Incharge Investigation (PW12) properly who had categorically stated before the trial court that the relevant motorcar had been inspected by him soon after the occurrence and that he had noticed blood being available inside that motorcar. Any inefficiency on the part of the said investigating officer in securing any blood-stained article from inside that motorcar was insufficient in the circumstances of this case to conclude that the two injured victims had not been injured at all or that no blood had spilled inside that motorcar at the time of taking place of the occurrence. Khadija Siddiqui (PW6) had received as many as twenty-three injures on different parts of her body through the use of a Chhurri and it was unimaginable that no Criminal Appeals No. 34-L and 35-L of 2018 12 blood of the said victim had come out of her body while being subjected to such a fierce assault through a lethal weapon. 12. The consideration weighing with the High Court that Riaz Ahmed complainant (PW5) had not informed the parents or other members of the family of the victims before proceeding to lodge an FIR has been found by us to be insignificant and irrelevant because the complainant was the driver of the victims and if the victims had been subjected to a very serious assault with the use of a Chhurri then it was nothing but natural and proper for the said driver to have straightway taken the injured victims to the nearest hospital and upon arrival of the police to inform the police about the incident. Such conduct on the part of the driver in fact could be cited in support of the prosecution’s case as the FIR had been lodged by the driver straightaway without even consulting anybody belonging to the victims’ family. This aspect of the case ruled out any deliberation taking place before lodging of the FIR and the same augmented its credibility rather than weakening its reliability. 13. The High Court had observed that the motive set up by the prosecution had not been proved by it because on the one hand Khadija Siddiqui (PW6) had maintained that she had refused to marry respondent No. 1 but on the other hand a letter written by her to respondent No. 1 showed that she was quite willing and eager to marry him. The High Court had failed to read that portion of the statement of Khadija Siddiqui (PW6) wherein she had explained that she was being harassed by respondent No. 1 and she wanted to complain against him to her mother and, therefore, an attempt was made by respondent No. 1 to silence her. Khadija Siddiqui (PW6) had also been suggested by the defence itself that respondent No. 1 had shunned her company but the young lady persisted in continuing her relationship with respondent No. 1 which suggestion clearly showed that there was a break in the close friendship between that young lady and respondent No. 1 Criminal Appeals No. 34-L and 35-L of 2018 13 prompting the respondent to make an attempt to get rid of her which provided a plausible motive to respondent No. 1. 14. The High Court had discarded the alleged recovery of a Chhurri at the instance of respondent No. 1 and the reasons recorded by the High Court in that regard have been found by us to be valid and cogent. 15. The reasons recorded by the High Court for discarding the recovery of a helmet from inside the motorcar of the victims have failed to impress us. The High Court had failed to notice in that regard that a helmet had been recovered by the investigating officer on the very day of occurrence and in the Memorandum of Recovery (Exhibit-PF) no colour of the recovered helmet had been recorded. It could be a lapse of memory on the part of the recovery witness namely Asghar Ali, F.C. (PW10) when he had stated about the colour of the recovered helmet or it could also be attributed to a dishonest concession on his part but the matter of colour of the recovered helmet was not serious enough to throw out the entire case of the prosecution against respondent No. 1, particularly when such case was strongly based upon statements of two injured victims who were a young lady and a minor girl having no reason to substitute the actual culprit who, according to the suggestions of the defence itself, was quite well known to them. 16. The High Court had completely failed to refer to that part of the evidence brought on the record which had clearly established that Khadija Siddiqui (PW6) and respondent No. 1 were class- fellows and it had consistently been suggested by the defence to all the relevant prosecution witnesses, including the two injured victims, that Khadija Siddiqui (PW6) and respondent No. 1 were close friends, they used to visit parks, hotels and the house of PW6’s maternal grandmother as well as the house of the victims’ parents besides watching movies in cinema houses together and, thus, there was hardly any question of Khadija Siddiqui (PW6) not recognizing respondent No. 1 as the sole culprit in an occurrence Criminal Appeals No. 34-L and 35-L of 2018 14 taking place in broad daylight and at a populated place. The defence had itself brought on the record many photographs, some in intimate positions, establishing a close and intimate relationship between Khadija Siddiqui (PW6) and respondent No. 1. The letter written by Khadija Siddiqui (PW6) to respondent No. 1 brought on the record of the case by the defence as Exhibit-DW left no room for doubt regarding very close friendship between the two which friendship had statedly hit some complications in the recent past. 17. We note with some concern that in the entire operative part of the impugned judgment passed by the High Court no discussion had taken place as to why the High Court had ignored or disbelieved the ocular account furnished by the minor and injured eyewitness namely Sofia Siddiqui (PW7). The said injured victim was six years old and the incident had taken place just outside her school when her elder sister, the other injured victim, had gone to bring her back from the school. The said minor injured victim had identified respondent No. 1 as the culprit on the first occasion that she got after the occurrence when respondent No. 1 had appeared before a Court for the purpose of seeking interim pre-arrest bail in connection with the present criminal case. Even Riaz Ahmed complainant (PW5) had identified respondent No. 1 on that occasion and had straightaway informed the investigating officer that respondent No. 1 was the person who had launched the murderous assault on and had injured Khadija Siddiqui (PW6) and Sofia Siddiqui (PW7) a few days ago. Sofia Siddiqui (PW7) had made her statement under section 161, Cr.P.C. on the very day of occurrence and it was suggested to her by the defence itself that she as well as her elder sister, i.e. Khadija Siddiqui (PW6) used to visit parks, hotels and cinema houses in the company of respondent No. 1 and the defence itself had suggested to her that she knew respondent No. 1 since before the occurrence as respondent No. 1 used to visit the victims’ house. In this backdrop failure on the part of Sofia Siddiqui (PW7) to name respondent No. 1 straightaway but recognizing him at the spot and naming him as the sole culprit at the first opportunity Criminal Appeals No. 34-L and 35-L of 2018 15 after the occurrence did not detract from the over all strength of the case of the prosecution against respondent No. 1. Be that as it may, the High Court was not justified in completely ignoring the statement of the said injured eyewitness who had absolutely no reason to falsely implicate respondent No. 1 in a case of this nature. 18. We have noticed that some downright misreading of the evidence had been committed by the High Court and for some of the reasons prevailing with it the High Court had ignored many critical aspects of the case available in the evidence brought on the record. The exercise of appreciation of evidence in this case by the High Court has, thus, been found by us to be laconic and misreading and non-reading of the record by the High Court has been found by us to have led the said Court into a serious error of judgment occasioning failure of justice and clamouring for interference in the matter by this Court. A judgment of acquittal suffering from serious misreading or non-reading of the evidence materially affecting the final outcome of the case is nothing short of being perverse and, hence, not immune from interference. Apart from that the High Court ought to have appreciated that it was only seized of revision petitions and not an appeal and in exercise of its revisional jurisdiction the High Court ought to have confined itself to correctness, legality, regularity or propriety of the proceedings of the courts below rather than embarking upon a full- fledged reappraisal of the evidence, an exercise fit for appellate jurisdiction. In the case in hand the trial and appellate courts had undertaken an exhaustive analysis of the evidence available on the record and had then concurred in their conclusion regarding guilt of respondent No. 1 having been proved beyond reasonable doubt. In the absence of any error of law committed by the courts below and in the absence of any illegality, irregularity or impropriety committed by the courts below in the trial or hearing of the appeal the High Court ought to have been slow in interfering with the concurrent findings of fact recorded by the courts below. Criminal Appeals No. 34-L and 35-L of 2018 16 19. For what has been discussed above these appeals are allowed, the impugned consolidated judgment passed by the High Court is set aside and the judgment passed by the learned Additional Sessions Judge, Lahore on 30.03.2018 convicting and sentencing respondent No. 1 for various offences is restored. The said respondent shall be taken into custody and shall be lodged in a prison so as to serve his remaining sentences. Chief Justice Judge Judge Islamabad January 23, 2019 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE FAISAL ARAB CRIMINAL APPEAL NO. 35-K F 2016 (Against the judgment dated 16.06.2016 of the High Court of Sindh, Karachi passed in Crl. Appeal No. 7/2016) The State/Anti Narcotics Force Appellant(s) VERSUS Parvez Hassan Haravi & another Respondent(s) For the Appellant(s) : Raja Inam Ameen Minhas, Spl. Prosecutor, ANF Ch. Ehtasham ul Haq, Spl. Prosecutor, ANF M. Tariq, Dy. Director For Respondent No. 2 : Mr. M. Akram Sh, Sr. ASC Syed Rifaqat Hussain Shah, AOR Date of Hearing : 12.02.2018 Crl. A 35-K/2016 2 JUDGMENT MAQBOOL BAQAR, J. Having failed in their attempts to obtain an order for forfeiture of a property bearing Bungalow No. 22-A, KDA Scheme No. 2, Karachi, under section 40 of the Control of Narcotics Substance Act, 1997 (CNS Act) before the Special Court, Control of Narcotics Substance-II, Karachi (The Special Court), and thereafter before the High Court of Sindh, the appellant through the instant appeal has, with the permission of this Court, assailed the said two orders declining their request by the Special Court and the High Court on 05.11.2015 and 08.6.2016 respectively. 2. The property sought to be forfeited is in the name of the respondent No. 2, who is an ex-wife of respondent No. 1. The appellant claimed before the Courts below that the property has been purchased by respondent No. 1 with the money he acquired through trafficking in narcotics substances, and that since he has been convicted by a Court in United Kingdom on the charge of attempting to smuggle narcotics, the property is liable to be confiscated under section 40 of the CNS Act. 3. The CNS Act was promulgated on 11.07.1997 for controlling the production, possession and trafficking of narcotic drugs and Crl. A 35-K/2016 3 psychotropic substances. The Act also provides a comprehensive scheme for tracing, identifying, freezing and forfeiture of assets acquired through trafficking in narcotic substances, and thus section 37 of the Act empowers the Special Court trying an offence punishable under the Act to order freezing of the assets of the accused, but as stipulated in the said provision itself, such can only be done, where it appears to the Court that there are reasonable grounds for it to believe that the accused has committed such an offence. Whereas sub-section (2) of section 37 empowers even the Director General and so also the officers authorized under section 21, to freeze the assets of the accused where the said officer is of the opinion that an offence under the Act has either been or is being committed by the accused, but the officers are required to, within seven days of the freezing, place before the Court, the relevant material enabling the Court, either to allow, or to disallow the freezing to continue. 4. The purpose of tracing, identifying and freezing the assets of the accused, his relatives and associates during the investigation or trial, as stated through sub-section 3 of the above provision, is the ultimate forfeiture thereof by the Special Court. Whereas section 38 of the Act mandates that on receipt of a complaint or credible information or where Crl. A 35-K/2016 4 a reasonable suspicion exists about any person of his having acquired assets through illicit involvement in narcotics related activities, within or outside Pakistan, the officers, as designated therein, shall proceed to trace and identify such assets. Sub-section (2) of section 38 provides that where a citizen of Pakistan is charged before a foreign Court of competent jurisdiction for an offence which is also an offence under the CNS Act, the officers designated thereby, shall proceed to identify the assets of the said persons, and subject to the provision of sub-section (3), may freeze the said assets. Whereas in terms of sub-section (3) of section 38 information about the assets traced as above has to be laid before the Special Court for the purpose of section 13 and section 19 in case action under the CNS Act, or any other law for the time being in force is initiated, and in case the person has committed the offence is outside Pakistan, before High Court for the purpose of forfeiture of assets under section 40. 5. Whereas section 12 of the CNS Act places prohibition on possessing, acquiring, using, converting, assigning or transferring any assets which have been derived, generated or obtained directly or indirectly, either in his own name or in the name of his associate, relatives or any other person through an act or omission relating to narcotic Crl. A 35-K/2016 5 substances which constitutes an offence punishable under the CNS Act, the Customs Act, the Prohibition (Enforcement of Hudd), Order, 1979 etc or constituted an offence under any law repealed by the CNS Act. It also prohibits holding or possessing on behalf of any person any assets as mentioned hereinabove. The minimum punishment for contravention of section 12, as prescribed through section 13, is 5 years imprisonment. It also provides for forfeiture of such property to the Federal Government. Another provision for forfeiture is section 19 of the Act which reads as follows: “19. Forfeiture of assets of an offender.—Notwithstanding anything contained in section 13, where the Special Court finds a person guilty of an offence punishable under this Act and sentenced him to imprisonment for a term exceeding three years, the court shall also order that his assets derivable from trafficking in narcotic substances shall stand forfeited to the Federal Government unless it is satisfied, for which the burden of proof shall rest on the accused, that they or any part thereto, have not been so acquired.” In terms of section 39 of the Act, in the event the accused is convicted under section 13, or is otherwise sentenced to imprisonment by the Special Court for more than 3 years, the Director General, Anti Narcotic Force (ANF), may through an application, request the Special Court for forfeiture of the identified assets of the convict or, as the case may be, his associate, relatives or any other person holding or possessing Crl. A 35-K/2016 6 such assets on his behalf. However, the order for forfeiture as ordained by sub-section (2) of section 39, can only be made by the Court upon its satisfaction that the assets sought to be forfeited were derived, generated or obtained in contravention of section 12 or/are liable to be forfeited under section 19, meaning thereby that only those assets shall be forfeited which have been acquired through an act or omission relating to narcotics substance which constitutes an offence punishable under the CNS Act. It is to ensure the satisfaction of the Court that the above criteria is fully met, that section 39 also required that no order thereunder be made without issuing a notice to show cause, and provides a reasonable opportunity of being heard to the persons being affected by such order. 6. In the present case since the appellants are seeking the forfeiture on the basis of a conviction by a foreign Court, they have invoked section 40 of the CNS Act, which section provides that the Special Court, may, on an application of the Director General, Anti Narcotics Force, order for forfeiture of the assets acquired in Pakistan by its citizen who has been convicted by a foreign Court for an offence which is also an offence punishable under the CNS Act. It also provides that no order thereunder shall be made without providing an opportunity of being Crl. A 35-K/2016 7 heard to such citizen. Though section 68 of the Act provides for drawing a presumption that the assets acquired by a person before or at the time of, or after the commission of an offence under the Act, were so acquired, generated or obtained through cultivation, manufacture, production, sale, purchase, and dealing or trafficking of narcotics drugs, psychotropic substances or controlled substances. However the essential pre-requisite, as prescribed through the above provision itself, is the existence of a reasonable ground to believe that the assets were in fact so acquired i.e. through the above noted illicit acts, and that there was no other likely source of acquiring such assets. 7. From the foregoing resumes of the relevant provision of law it can be seen that under the CNS Act prohibition on acquisition and possession is in respect only of those assets that have been derived from narcotics offences (section 12) and that the violation of the above, inter alia, entails forfeiture (section 13). Though the Director General and Officers authorized under section 21 may also freeze the assets of the accused, but within seven days of the freeze such officers has to place before the Court the relevant matter enabling the Court to decide either to allow, or to disallow the freeze to continue (sub section (2) of section Crl. A 35-K/2016 8 37). Even freezing of the assets of an accused, being tried for an offence punishable under the CNS Act cannot be ordered by the Court without there being reasonable grounds available for the Court to believe that the accused has committed such an offence (section 37). And further that even where the Special Court convicts a person for an offence under the Act, and sentence him to imprisonment for a term exceeding 3 years, the mandate of the Court to order forfeiture of his assets under section 19, is limited to only such assets which are “derivable” from trafficking in narcotic substances, however the word “derivable” as used in section 19, has not been so used to convey any attribute to any asset, as all and every asset, acquisition whereof is otherwise not barred or restricted by any law, is capable of being acquired, therefore it is only in the context of the means, capacity and capability of the convict that the word “derivable” has been used, and thus in this view of the matter, the assets of the convict can be forfeited only when there is a probability of the same having been acquired through illicit dealings in narcotics substances, and even then the accused has a right to be offered an opportunity to prove that the property has not been so secured (section 19). This besides being the only plausible interpretation, also get support Crl. A 35-K/2016 9 from the provisions of section 38 in terms whereof in the first place the authorised officer of the ANF can proceed to trace and identity the assets of only those regarding whom there is a complaint, or credible information or reasonable suspicion of having acquired assets through illicit involvement in narcotics, and secondly information about such asset for the purpose of section 40, is required to be placed before the High Court, so that, in our view, the Court may satisfy itself that the assets have been derived from the means and resource acquired through illicit involvement in narcotics. This view is further fortified, endorsed by the provision of section 39, which provides for forfeiture of the assets of a convict under the CNS Act, upon the request of the Director General, ANF, as in terms of thereof also, the satisfaction of the Court, that the assets sought to be forfeited were derived, generated or obtained in contravention of section 12, or/are liable to be forfeited under section 19, is essentially required. 8. So it can safely be said that under the CNS Act only those assets of a convict can be forfeited which have been derived, obtained or acquired through his illicit involvement in narcotics trade. Though section 40 of the CNS Act, which provides that where a citizen of Pakistan is convicted by a foreign Court for an offence which is also punishable Crl. A 35-K/2016 10 under the CNS Act, Special Court may on an application by the Director General or any other authorized officer, order that the assets acquired in Pakistan by such citizen shall be forfeited to the Federal Government, without explicitly saying that the acquisition of such assets should have been through illicit dealing in narcotics substances, however in view of the entire scheme of the law, particularly the provisions relating to tracing, identifying, freezing and forfeiture of the assets, which as noted hereinbefore, require not just a nexus between the asset(s) and the convict, but also that the assets should have been acquired or derived from narcotics trade, even when the investigation, trial and conviction has been conducted/rendered in Pakistan and therefore it would be wholly untenable to say that in case of a foreign conviction, the acquisition of the assets through illicit involvement of the convict in narcotics is not required to be shown, more so, when the section (section 40) employs the word “acquisition” rather than the words like “owned” or “possessed” to connect the property with the convict, and makes it mandatory for the court to provide an opportunity of hearing to the convict before ordering forfeiture. Indeed as noted earlier, section 68 allows a presumption as to the source/genesis of the assets, being Crl. A 35-K/2016 11 narcotics, but such, as prescribed by the said provision itself can only be presumed, where, firstly there are reasonable grounds to believe that the asset were acquired by a person, before or at the time of, or after the commission of an offence under the CNS Act, secondly, that there was no other likely source of acquiring such asset, and the presumption, so drawn as provided by the said section (section 68) is rebuttable. 9. However, in the present case the appellant’s far from showing that the subject property has been derived or generated through any act or omission relating to narcotics, have not been able to show that the same has ever been purchased by respondent No.1, or that he has in any manner contributed towards its purchase. The property admittedly is in the name of respondent No.2, having been purchased by her from the previous owner, namely, Begum Azra Faruki, for a sale consideration of rupees nine lacs fifty thousands (Rs.950,000/-) on 02.2.1987, through a registered sale deed duly executed and registered on the said date. The said deed is exclusively in favour of respondent No.2, and the same does not, in any manner, refers to respondent No.1. The payment of the entire sale consideration amount being Rs.950,000/- is also shown to have been made to the seller by respondent No.2 only. However the appellant in Crl. A 35-K/2016 12 their feeble attempt to connect the properties with respondent No.1 have relied upon a photo copy of a purported supplemental agreement to sell dated 20.10.1986, allegedly executed between the said Mrs. Azra Faruki and the respondent No.1. A narration clause whereof reads as under:- “AND WHEREAS the Agreement dated 3.6.85 sets out the manner in which part payment was affected for Rs.8,50,000/= and vacant possession given on 01.07.85” And through its clause 1, it acknowledges payment of the purported balance sale consideration amount as follows:- “The Purchaser herewith pays to the Seller the outstanding balance of the sale price amounting to Rs.1,00,000/= the receipt of which the Seller does hereby acknowledge.” Whereas clause 5 of the said agreement stipulates as under:- “In the event of the failure of the Purchaser to complete mutation of the said property before the Registrar, before 30th January, 1987, the Purchaser agreed to pay to the Seller a further sum of Rs.1,00,000/- (Rupees lone lac only) as compensation to the seller.” In the first place as noted hereinabove, the above purported document, merely being an unattested, photo copy, cannot be relied upon, secondly, the same even otherwise neither can possibly prove that the property was conveyed to respondent No.1 on the basis thereof, nor has it been otherwise proved that it was in fact on the basis of the alleged payment mentioned in the said agreement that the property was Crl. A 35-K/2016 13 conveyed in favour of respondent No.2, whereas the sale deed in favour of respondent No.2 acknowledges receipt of the entire sale consideration from the said respondent, it neither refers to any payment from the respondent No.1 nor makes any mention of the aforesaid purported supplemental agreement to sale. The investigation officer of the appellant force, has admitted during his cross examination in the case that neither is there any evidence “that the property was purchased from drug money, except the conviction of Pervez Hassan Haravi”, the respondent No.1, in UK, nor is there any reasonable suspicion, or any proof that the property was purchased by respondent No.1 from drug money. 10. In the circumstances, there was/is absolutely no justification to allow confiscation of the subject property, merely for the reason that the same was purchased by respondent No.2, while she was wedded to respondent No.1, and that too some 8 years before his arrest and about 13 years before his conviction. 11. Even otherwise, the provisions of section 40 of the CNS Act, which Act was promulgated on 11.7.1997, cannot be invoked for the forfeiture of the property purchased way back on 02.2.1987, when there was no provision for forfeiture of a property purchased by someone who Crl. A 35-K/2016 14 has been convicted for narcotics related offence by a foreign Court, as the same would be violative of the provisions of Article 12 of the Constitution of Islamic Republic of Pakistan, 1973. The provisions of section 40 of the CNS Act could have been invoked and applied in respect of such purchase, only if the application of the said provisions would have expressly been made retrospective. We therefore do not find any substance in the above appeal and would therefore dismiss the same. JUDGE JUDGE JUDGE Announced in open Court On 04.5.2018 at Islamabad JUDGE “APPROVED FOR REPORTING” Aamir Sh./

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Qazi Muhammad Amin Ahmed Mr. Justice Amin-ud-Din Khan Criminal Appeal No.359 of 2018 (Against the judgment dated 27.2.2018 of the Peshawar High Court Abbottabad Bench passed in Criminal Appeal No.86-A/2015) Muhammad Mumtaz …Appellant(s) Versus Mehtab and another …Respondent(s) For the Appellant(s): Qari Abdul Rasheed , ASC Syed Rifaqat Hussain Shah, AOR For the Respondent (s) Mr. Naveed Hayat Malik, ASC For the State: Malik Akhtar Hussain Awan, AAG KPK Date of hearing: 2.12.2019 ORDER Qazi Muhammad Amin Ahmed, J.- Mehtab s/o Ayub, respondent herein, was tried as a juvenile for committing Qatl-i- Amd of his schoolmate Muhammad Azhar in the dormitory during wee hours of 17.9.2013. The incident was reported without nomination; weapon of offence spotted outside the room, turned out as a lead to the respondent who was eventually tried on the basis of various pieces of circumstantial evidence, his retracted judicial confession being most prominent. A learned Additional Sessions Judge at Abbotabad returned a guilty verdict vide judgment dated 5.6.2015; convicted under clause (b) of Section 302 of the Pakistan Penal Code, 1860, the respondent was sentenced to imprisonment for life with a direction to pay Rs.50,000/- as compensation or undergo six months SI in default thereof with pre-trial commutation. A learned Judge-in-Chamber of the Peshawar High Court altered respondent’s conviction into clause (c) of the Section ibid and reduced sentence to 10-years RI Cr.A. No.359-2018 2 vide impugned judgment dated 27.2.2018; complainant seeks enhancement thereof, by leave of the Court. 2. Learned counsel for the appellant while conceding that the respondent has since served out the sentence, nonetheless, contends that sentence of 10-years is not a conscionable wage for the crime and, thus, merits enhancement in the interest of justice, albeit without support from the State. 3. Heard. Record perused. 4. Respondent’s confessional statement, though retracted subsequently, is prosecution’s mainstay; going by his words, he was carnally assaulted by the deceased for more than once; despite resistance, the deceased insistingly treaded the lusty course and it is in this backdrop, according to the prosecution itself, that the respondent exasperatingly embarrassed, took the most drastic step in the face of no other possible motive. In the absence of any other evidence, the respondent made his breast clean and as such his narrative is to be received in its totality. Incident though most unfortunate, nonetheless, the deceased cannot be credited as being entirely blameless and as such interference by this Court at this point of time, particularly when the respondent had already served out the sentence would be far from being expedient. Appeal fails. Dismissed. Judge Judge Judge Islamabad 2nd December, 2019 Not approved for reporting Azmat*

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MRS. JUSTICE AYESHA A. MALIK CRIMINAL APPEAL NOs. 363 TO 366 OF 2021 (Against the judgment dated 07.03.2017 passed by the Lahore High Court, Rawalpindi Bench in Criminal Appeal Nos. 01 & 02/2014 & Murder Reference No. 09/2014) Muhammad Ali (In Cr.A. 363/2021) Khurram Shahzad (In Cr.A. 364/2021) Muhammad Sajjad, complainant (In Cr.As. 365 & 366/2021) …Appellants VERSUS The State etc (In all cases) …Respondent(s) For the Appellant(s): Mr. Basharatullah Khan, ASC Syed Rifaqat Hussain Shah, AOR (In Cr.As. 363-364/2021) For the Complainant: Malik Qamar Afzal, ASC (In Cr.As. 365-366/2021) For the State: Mr. Muhammad Jaffer, Addl.P.G. Date of Hearing: 22.09.2022 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Appellants Khurram Shahzad and Muhammad Ali along with co-accused Muhammad Waheed Akhtar were tried by the learned Sessions Judge, Chakwal, pursuant to a case registered vide FIR No. 172 dated 14.11.2012 under Sections 302/324/396/449 PPC at Police Station Dhudial, District Chakwal for committing dacoity and murder of Hafiz Muhammad Ijaz. The learned Trial Court vide its judgment dated 03.01.2014 while acquitting the co-accused, convicted the appellants as under:- i) Under Section 460 PPC To death. CRIMINAL APPEAL NOs. 363 TO 366 OF 2021 -: 2 :- ii) Under Section 396 PPC To death with a fine of Rs.50,000/- each or in default whereof to further suffer SI for six months. iii) Under Section 302 (b) PPC To death with a direction to pay an amount of Rs.100,000/- each to the legal heirs of the deceased. iv) Under Section 337-A(ii) PPC To five years RI each with a direction to pay the amount of Arsh, which shall be 5% of the Diyat in equal shares to the said injured. 2. In appeal, the learned High Court while maintaining the conviction of the appellants under Section 460/396 PPC, altered the sentence of death into imprisonment for life. The amount of fine and the sentence in default whereof was maintained. Benefit of Section 382-B Cr.P.C. was also extended to the appellants. The conviction and sentence of the appellants under Section 337-A(ii) PPC was also maintained. However, the learned High Court set aside the conviction and sentence of the appellants under Section 302(b) PPC. All the sentences were ordered to run concurrently. Being aggrieved by the impugned judgment, the appellants filed Jail Petition No. 322/2017 & Criminal Petition No. 520/2017 whereas the complainant filed Criminal Petition Nos. 631 & 632/2017. This Court granted leave in the afore-noted petitions on 04.11.2021 and the present Criminal Appeals have arisen there-from. 3. The prosecution story as given in the judgment of the learned Trial Court reads as under:- “2. The facts of the case, as enshrined in the statement (Exh:PR) made by Muhammad Sajjad complainant (PW-5) before the police, are that he is resident of Dhoke Chach and has his residential house at village Bheen and was running a medical store/clinic at the main market; that his wife and children remained in the house and he while leaving for his clinic, used to lock the main door from outside; that on 14.11.2012, when he reached back home at about 8.30 p.m. after the closure of shop, he opened the main gate, all of a sudden, three dacoits, who were armed with pistols, another armed with chopper (Toka) entered his house whereas one of their companion remained at the gate; that the dacoits snatched an amount of Rs.5,000/- and mobile phone of the complainant; that one of the dacoits, who CRIMINAL APPEAL NOs. 363 TO 366 OF 2021 -: 3 :- was quite young, made blows with the reverse side of pistol on the head of the complainant and his right shoulder, who became injured; that the dacoits asked the complainant to get the grill of the courtyard opened; that the complainant called his wife Aqsan Anwar, who on hearing his noise, bolted the room from the inside and made telephonic calls to the brothers of the complainant, informing them about the situation; that the brothers of the complainant arrived whereafter the assailants after pushing the grill entered the courtyard and then in the rooms; that one of the dacoits made a shot with pistol hitting on above the right eye of Hafiz Muhammad Ijaz, the brother of the complainant, who fell down due to the injury; that the other brother of the complainant Muhammad Nawaz came forward; that the second fire was made on him by the other assailant and the fire shot hit on the abdomen of Muhammad Nawaz; that the complainant etc thereafter, grappled with the assailants and caught hold one of the dacoits; that in that process, his other companion made a chopper blow, which hit on the head of his own companion; that thereafter, the assailants after making fire shots went out of the house; that Muhammad Zameer, the brother of the complainant also sustained a fire shot injury on the finger of his right hand; that one of the dacoits died on the road side due to the injuries; that on hearing the report of firing, so many persons from the locality gathered there and seeing them and also taking advantage of the darkness, the dacoits succeeded in running away. The one who died at the spot was later on identified as Noman Masood s/o Muhammad Masood Pervez. The injured were taken to the hospital and in the way, Hafiz Muhammad ljaz, one of the brothers of the complainant, died due to the injuries.” 4. After completion of investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. In order to prove its case the prosecution produced as many as 20 witnesses. In their statements recorded under Section 342 Cr.P.C, the appellants pleaded their innocence and refuted all the allegations leveled against them. However, they did not make statements on oath under Section 340(2) Cr.P.C in disproof of allegations leveled against them. They also did not produce any defence evidence. 5. At the very outset, learned counsel for the appellants argued that there are material contradictions and discrepancies in the statements of the prosecution witnesses, which have been overlooked by the courts below. Contends that the prosecution case is full of doubts and infirmities, as such, appellants deserve benefit of doubt. Contends that the CRIMINAL APPEAL NOs. 363 TO 366 OF 2021 -: 4 :- prosecution case is based upon conjectures and surmises and it has to prove its case without any shadow of doubt but it has miserably failed to do so. Contends that the prosecution witnesses are interested and related, therefore, their evidence has lost its sanctity and the conviction cannot be based upon it. Contends that the identification parade was conducted in Police Station without observing the instructions/guidelines enunciated by the superior courts. Contends that during identification no role whatsoever was ascribed to the appellants. Contends that in-fact the two co-accused of the appellants had murdered the brother of the complainant but they have been done to death in a police encounter, therefore, the appellants cannot be saddled with the criminal liability. Contends that the recoveries of weapon of offence from the appellants are planted upon them. Contends that on the same set of evidence, co- accused of the appellants has been acquitted, as such, the appellants also deserve the same treatment to be meted out. Lastly contends that the reasons given by the learned High Court to sustain conviction of the appellants are speculative and artificial in nature, therefore, the impugned judgment may be set aside. 6. On the other hand, learned Law Officer assisted by the learned counsel for the complainant has defended the impugned judgment. It was contended that the prosecution case is free from doubts and all PWs have supported the case of prosecution and there are no material contradictions in their evidence. It was further contended that the eyewitnesses were subjected to lengthy cross-examination but their evidence remained unshaken. Lastly contended that the prosecution has succeeded to prove its case beyond any shadow of doubt, therefore, the appellants do not deserve any leniency from this Court. 7. We have heard learned counsel for the parties at a considerable length and have perused the evidence available on record. It is cardinal principle of criminal jurisprudence that each criminal case has its own peculiar facts and circumstances, therefore, needs to be decided accordingly. As per the prosecution version disclosed CRIMINAL APPEAL NOs. 363 TO 366 OF 2021 -: 5 :- in the crime report, it is the case of the prosecution that four dacoits trespassed into the house of complainant Muhammad Sajjad while one of their companion remained outside the gate to provide protection to other companions during occurrence. During the course of investigation, one Waheed Akhtar was also disclosed as one of the companion, who was ascribed the role of abetment. As a consequence, the tally of the accused involved in the said occurrence enhanced to six. It is an admitted fact that one of the co-accused namely Nouman was done to death by his companions during the occurrence while two of the accused namely Muhammad Waqas and Tallat Mehmood were done to death in a police encounter. During the course of proceedings before the Trial Court, the prosecution advanced its case mainly upon the ocular account, medical evidence, identification parade and recovery of weapon of offence from the appellants. The ocular account was furnished by Muhammad Sajjad, complainant/injured (PW-5) and Muhammad Nawaz, injured (PW-7). Both of these witnesses of the ocular account remained consistent on each and every material point qua the date, time, mode, manner of the occurrence and the locale of the injuries on the person of the deceased and the injured PWs. Although both of them were subjected to cross-examination at length but the defence miserably failed to detect anything which can hamper the prosecution case on salient features. The medical evidence fully corroborates the ocular account. During the course of investigation, the accusation against the appellants was fully established as per the contents of the crime report. The main thrust of the arguments advanced by the learned counsel for the appellants was that the ocular account furnished through related witnesses has lost its strength on the ground that occurrence has taken place inside the house at 8.30 pm, which clearly reflects that the inmates of the house are supposed to be at home, therefore, their presence at the spot cannot be doubted in any manner keeping in view the place and the time of occurrence. The other assertion of the learned counsel relates to minor discrepancies, which cannot hamper the prosecution case as it is repeatedly held by this Court that minor discrepancies do not frustrate the prosecution case unless and until CRIMINAL APPEAL NOs. 363 TO 366 OF 2021 -: 6 :- there is something which directly shatters the salient features of the prosecution case but the same is squarely absent in the instant case. Reliance is placed upon Allah Bakhsh Vs. Ahmad Din (1971 SCMR 462). As far as the recovery of the weapon of offence and the identification parade are concerned, it is suffice to say that the recovery of pistol has already been held inconsequential by the learned High Court. Whereas the identification parade looses its strength if the appellants are identified during the course of proceedings before the Trial Court although it is an admitted fact that Muhammad Zulqarnain, Civil Judge/Judicial Magistrate, Rawalpindi (PW-17) who conducted identification parade has categorically stated that the aforesaid witnesses had duly identified the appellants during the course of identification parade. It is an admitted fact that the matter pertains to an occurrence in which dacoity was committed. During the course of the said dacoity, one person was done to death whereas two sustained injuries. To evaluate the strength of participation and criminal liability, it seems advantageous to reproduce the relevant provisions of law, which read as under:- “391. Dacoity: When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity". 395. Punishment for dacoity: Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which shall not be less than four years nor more than ten years and shall also be liable to fine. 396. Dacoity with murder: If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, everyone of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which shall not be less than four years nor more than ten years, and shall also be liable to fine.” 8. The Legislature while defining provisions of Sections 391/396 PPC has deliberately used the word “conjointly”, which is not used anywhere in PPC except in the afore-said provisions. 'Conjointly' indicates CRIMINAL APPEAL NOs. 363 TO 366 OF 2021 -: 7 :- jointness of action and understanding. Every one acts in aid of other. 'Conjointly' means to act in joint manner, together, unitedly by more than one person. According to Black’s Law Dictionary, ‘conjoint robbery’ means where the act is committed by two or more persons. 'Conjoin' means 'join together', as per the Oxford Large Print Dictionary. According to Corpus Juris Secundum, 'Conjointly is explained as 'together', the one with knowledge, consent and aid of the other and pursuant to an agreement or understanding or 'unitedly'. In the 'Words and Phrases' 'Vol. 8 A', published by 'West Publishing', same meaning is adopted as in Corpus Juris Secundum. It explains that conjoint robbery is where the act is committed by two or more persons. According to Webster's New International Dictionary 'conjoint' means 'united', 'connected' associated or to be in conjunction or carried on by two or more in combination. The use of word 'conjointly' in Section 391 PPC indicates that five robbers act with knowledge and consent and in aid of one another or pursuant to an agreement or understanding i.e. unitedly. A bare perusal of the aforesaid provisions clearly reflects that the purpose of using the word “conjointly” relates to overlapping each and every act of participants in the occurrence on equal basis without any distinguishing feature. The aforesaid provisions are based upon entirely different footing as compared to ordinary case of murder where conviction can be recorded on the basis of role ascribed coupled with the fact of having common object or common intention. The law has been devolved on these lines since long but as far as these two provisions i.e. Sections 391/396 PPC are concerned, there is absolutely no chance to distinguish the criminal liability on the basis of act or role ascribed to each accused rather each one of them becomes equally responsible soon after they make preparation for the commission of the offence, act during the course of occurrence and even the acts committed while retreating after commission of the offence. No one can be distinguished on the basis of role or criminal liability with reference to such like offences as these offences are squarely against the fabric of the society and heinous in nature by all means. Section 396 declares in specific terms that the liability of other persons is co-extensive with that of the CRIMINAL APPEAL NOs. 363 TO 366 OF 2021 -: 8 :- actual murderer. All that is required to be proved is that they have been conjointly committing dacoity and during the course of dacoity death caused by a dacoit would be murder and would be attributed to all of them. The death need not be proved against any of the dacoits in particular so long as death is the result of cumulative effect of violence used by the gang. The primary element of the offence under this provision of law is that the dacoity was committed conjointly by all persons involved, and the secondary element is that murder was committed while the dacoity was being committed. The fact that Section 396 PPC is a self- contained provision stands out right away upon its first reading. The Section is unique, in that, it imposes vicarious liability upon all members of the gang without there being any distinction and to that extent is sui generis in nature. Section 396 PPC in its plain term applies to every situation in which five or more persons commit dacoity and in the course of the commission of such dacoity anyone of the said person commits murder. Thereby all five or more people become squarely responsible for the crime of "dacoity with murder" and expose themselves to the penalties outlined in the aforementioned provision of law. The three essential ingredients for invoking Section 396 PPC are that (i) one of the persons must commit murder, i.e., his act must amount to "murder" within the meaning of Section 300 PPC, (ii) the said person must be one of the five or more persons who have joined together to commit dacoity, and (iii) the murder must be committed in the course of commission of such dacoity. If these conditioned are fulfilled, Section 396 PPC would set in and bring all the persons involved in the act of dacoity in the same category even if they did not commit the murder. In other words, so far as the remaining persons are concerned, the prosecution is not required to prove any overt act in order to entail Section 396 PPC to apply with their intention to commit dacoity. Neither intention nor knowledge that murder would be committed in the course of the commission of such dacoity is required to be proved to exist in the contemplation of any of the said other persons. As a consequence, all persons must, therefore, possess the mens rea. They would all nevertheless be exposed to the rigour of Section CRIMINAL APPEAL NOs. 363 TO 366 OF 2021 -: 9 :- 396 PPC. The provision is, therefore, sui generis, in nature, therefore, it seeks to hold persons liable for the offence. 9. So far as the argument of learned counsel for the appellants that on the same set of evidence co-accused has been acquitted is concerned, the same is misconceived. The case of the appellants is distinguishable to that of the acquitted co-accused. The said co-accused was ascribed the role of abetment but no evidence whatsoever regarding the role played by him in the commission of the offence could be placed on record. No specific date, time and place where the conspiracy was hatched has been placed on record. Even name and number of witnesses to that extent is not available on the record. Perusal of Section 107 PPC reveals that three ingredients are essential to dub any person as conspirator i.e. (i) instigation, (ii) engagement with co-accused, and (iii) intentional aid qua the act or omission for the purpose of completion of abetment. All the three ingredients of Section 107 PPC are prima facie missing in this case. In order to link the said co-accused, the prosecution had also produced evidence of extra judicial confession. According to which, he had made confession before Muhammad Bashir, Muhammad Naseer & Zahid Mehmood PWs. According to said witnesses, the accused had appeared before them and disclosed to them that the complainant is under the belief that the dacoity in his house was got committed by him and he had requested for pardon. The learned Trial Court has extensively examined this aspect of the matter and rightly came to the conclusion that from the narration of the witnesses it is nowhere established that the accused himself had made any confession that he was involved in the offence or the same was got committed by him. Rather, his statement was that it was the plea of the complainant with regard to his involvement in the commission of offence and for that reason he had approached the witnesses for pardon. Such a statement cannot come in the definition of extra judicial confession as in extra judicial confession, an accused has to confess his guilt before an independent person. As far as the case of the appellants qua conviction and sentence is concerned, after a careful analysis it is observed by us that the learned High Court has already taken CRIMINAL APPEAL NOs. 363 TO 366 OF 2021 -: 10 :- a lenient view while converting the sentence of death into imprisonment for life. The impugned judgment is well reasoned, proceeds on correct principles of law enunciated by this Court and the same does not call for any interference by this Court. 10. For what has been discussed above, all these appeals having no merit are accordingly dismissed. The above are the detailed reasons of our short order of even date. JUDGE JUDGE JUDGE Islamabad, the 22nd of September, 2022 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MANZOOR AHMAD MALIK MR. JUSTICE SAJJAD ALI SHAH MR. JUSTICE QAZI MUHAMMAD AMIN AHMED Criminal Appeal No.366/2010 (Against judgment dated 18.3.2010 passed by Lahore High Court Rawalpindi Bench Rawalpindi in Crl. Appeal No.335 of 2003) Muhammad Hanif ….Appellant Versus The State … Respondent For the Appellant Mr. M. Shahid Kamal Khan, ASC Mian Muhammad Zafar Iqbal, ASC For the State : Mr. Tariq Mehmood Jehangiri, Advocate General Islamabad with Muhammad Hussain Lasi, DSP/I.O. Date of Hearing : 16.10.2019. JUDGMENT QAZI MUHAMMAD AMIN AHMED, J.- On a tip off, a contingent of Police Station Tarnol, District Islamabad, intercepted a truck bearing Registration No.JT/7808 with a vehicle bearing No. AA/7504 being the payload; upon search of the cargo, secret cavities, concealing a huge cache of charas, packed in different bundles with total weight of 3 mound and 12 kilograms were detected; the stuff was secured vide inventory; appellant is owner of the vehicle being shifted in the truck; samples, taken from each bundle, confirmed narcotic character of the contraband. Upon indictment, the appellant claimed trial, pursuant whereto, prosecution produced four witnesses to drive home the charge. The appellant confronted prosecution evidence with the following plea:- “I had been serving as driver of the said Toyota Pickup. On 24.5.2002, the owner of the said Toyota vehicle, loaded it in truck No.JT/7808 and asked me to take the same to Lahore to be delivered to his brother in law; who is running an auto workshop there. As the owner wanted to sell it, after Criminal Appeal No.366/2010 2 reconstitution of the engine, which was seized, however, on my way to Lahore, the Police stopped the truck, and as already mentioned, took the same to the Police Station. I was told by the police at the Police Station that charas was recovered from the secret cavities of the Toyota Pickup. I was not at all aware of any incriminating substance, concealed anywhere in the Toyota Pickup, as alleged. The police, to whom I had disclosed all this, traced the owner and, instead of challaning him, let him off after bargaining with him, and challaned me being a poor driver. I have been made a scapegoat. The owner also did not care to pursue my case.” The learned Trial Court was not much impressed by appellant’s plea and instead preferred the prosecution evidence to return a finding of guilt with ultimate penalty of death, affirmed by the High Court vide impugned judgment dated 8.3.2010 vires whereof are being assailed by leave of the Court on the grounds that samples were not taken from each piece of the contraband and thus the appellant cannot be saddled with the responsibility for the whole lot, nor being an unsuspecting employee on the payroll could be attributed conscious knowledge, blamed upon the alleged employer. 2. We have gone through the statements of the witnesses constituting an uninterrupted chain of facts ranging from seizure to forensic analysis of the contraband; the witnesses are in a comfortable unison on all the salient details regarding interception of the huge consignment as well as steps taken subsequent thereto. Since the contraband comprising various pieces, quite a few in number, was packed in different bundles, separation of samples for chemical analysis, taken from each bundle, is found by us as exercise sufficient to constitute forensic proof; argument that samples were required from each piece, packed in each bundle, is entirely beside the mark. It would be naively unrealistic to assume that random sampling left space for any doubt about the wholesome narcotic character of the contraband, too huge to be manipulated for concealment in an expensive luxury vehicle. Exoneration of driver and cleaner of the truck by the police, in retrospect, lends credence to the case set up by the prosecution, even otherwise structured upon flawless and immaculate evidence. Defence suggested to the witnesses in the box and position taken in support thereof are far less than convincing to override the overwhelming evidence, inexorably pointed upon the appellant; plea of substitution, Criminal Appeal No.366/2010 3 clamored without entering the witness box to blame the employer, having abandoned the appellant out in the cold does not hold much water as well. View concurrently taken on appellant’s culpability is not open to any legitimate exception. However, quantum of sentence suggested to be exacted from the appellant by the Courts below warrants a serious reconsideration. Huge quantity of cache, notwithstanding, given toxic lethality of the contraband being on lower side coupled with the position taken by the appellant, though rejected, nonetheless, calls for exercise of caution in awarding irreversible penalty of death, therefore imprisonment for life, in circumstances, is viewed by us as a conscionable wage for the crime. Consequently, penalty of death is altered into imprisonment for life to be commuted with benefit under Section 382-B of the Code of Criminal Procedure, 1898; amount of fine and consequence of default are kept intact. Criminal Appeal is partly allowed in the above terms. JUDGE JUDGE Islamabad, the 16th October, 2019 JUDGE Ghulam Raza/*

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.37-L of 2016 (On appeal from the judgment dated 07.10.2013 passed by the Lahore High Court, Lahore in Criminal Appeal No.1511 of 2009). Muhammad Pervaiz …Appellant(s) VERSUS The State, etc. …Respondent(s) For the Appellant(s) : Mr. Nawab Ali Mayo, ASC For the Respondent : Mr. Mehmud ul Islam, AoR (with caveat) For the Complainant : Nemo For the State : Mr. Mazhar Sher Awan, Additional Prosecutor General Date of Hearing : 06.05.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J.- Muhammad Pervaiz, appellant is in receipt of a guilty verdict; he was indicted for committing qatl-e-amd of Kausar Bibi, no other than his better half; it is affirmed by the learned High Court vide impugned judgment dated 7.10.2013 vires whereof are being challenged through leave of the Court. 2. Prosecution case is structured on the statement of deceased’s brother, Muhammad Arshad, PW; according to him, the marriage was on the rocks as the bride failed to bring dowry to the expectation of her in laws. Upon a message by the deceased, Muhammad Arshad, PW along with Mehmood, PW visited the former to take her back, however, upon threats by the appellant they preferred to stay overnight when in midst thereof they were attracted by the hue and cry to see the deceased being strangulated by the appellant with the assistance of Khalid co- Criminal Appeal No.37-L of 2016. 2 accused; they attempted to rescue the deceased without success. Upon indictment, the accused claimed trial to confront prosecution evidence; they blamed dacoits to have murdered the deceased during the fateful night. While acquitting the co-accused, the learned trial Judge convicted the appellant under clause (b) of Section 302 of Pakistan Penal Code, 1860 and sentenced him to death with a direction to pay Rs.100,000/- as compensation or to undergo six month S.I. in the event of default, a view affirmed by the learned High Court albeit with alteration of death penalty into imprisonment for life with benefit of Section 382-B of the Code of Criminal Procedure. 3. Learned counsel for the appellant contends that the appellant could not have been convicted merely upon his failure to satisfactorily explain as to what befell upon his life during the fateful night. He adds that presence of witnesses is extremely doubtful and even otherwise cannot sustain the charge after they had been disbelieved qua identically placed co-accused; the bottom line is that it would be unsafe to maintain conviction. Contrarily, the learned Law Officer vehemently defends appellant’s conviction on the ground that plea advanced by him being preposterous was rightly rejected which in retrospect established his presence at the spot, thus there was no space to entertain any hypothesis of his innocence. 4. Homicidal death is not in dispute; appellant’s plea that dacoits intruded the household and strangulate the deceased has not found favour with the Courts below. The appellant has also not denied his presence, however these factors by themselves cannot hypothesize presumption of appellant’s guilt in the absence of positive proof. Silence or implausible explanation cannot equate with failure within the contemplation of Article 121 of Qanoon-e- Shahadat Order, 1984, thus does not absolve the prosecution to drive home the charge by itself on the strength of positive proof. It would be grievously unsafe to convict suspects on presumptions or upon failure to establish their innocence. Possibilities are infinite and do not necessarily include the guilt alone. Criminal Appeal No.37-L of 2016. 3 A criminal case is to be essentially decided on the basis of evidence adduced by the prosecution. Once the witnesses had visited the deceased to take her back, apparently there was no occasion for them to hold in abeyance the purpose of their detour and in case they were present and in the next room, there was no compulsion for the appellant to do away with the deceased at the risk of retaliation or a certain prosecution. The script is far from being plausible and it is so viewed by the learned High Court itself in the following words “Presence of PWs may be suspicious at the time of occurrence . . . . ”. It is astonishing that despite above observation, the High Court preferred to maintain the conviction. Suspicions are after all suspicions and cannot substitute the legal proof nor a suspect can be condemned on the basis of moral satisfaction in the absence of evidentiary certainty. Yet another circumstance to cast away the conviction is rejection of prosecution evidence qua Khalid co-accused. Role assigned to the acquitted co-accused is inexorably intertwined with appellant’s alleged participation in the crime and thus even strongest corroboration, otherwise hopelessly lacking cannot rescue the charge. It would be unsafe to maintain the conviction, therefore by extending the benefit of doubt, Criminal Appeal No.37-L/2016 is allowed, impugned judgment is set aside. The appellant shall be released forthwith, if not required in any other case. JUDGE JUDGE Lahore, the 06th of May, 2019 Ghulam Raza/* JUDGE

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No. 382/2011 2 /� �آ ِ� � ،ن� � �ود:۔  ٔ����: � �  �و� �ر١٠ ��ا ٢٠١١ ء � � � ر� �� �ا تز�ا � �� � ا�� ِ�ا�   ؁ِ��  � � تد� � � ع�د � ہ� �ا� � �� �ا ۔��  ٢۔  ہ�� � � �ر� � � � تد� � روا � �� � ر� � ��د � ء�و � � ۔� ٣۔  � فؤو�ا� � � ں� �� � ��ا) � ہا�١٠ ( � ٹر�ر ��ا �ا�ا � ١٩٠ /٢٠٠٤ �ر� تادراو �� � ٢١ � ٢٠٠٤ ؁ �  �ِ��  ٩ � � ٤٥ � �  � ر� ى�� � � ىد � ٹ�� �ؤ� �� � � � �ذ جرد �� :- " � � ہ� ٹر�ر �� ��و ِ�� روا زو� روا � را�ز  � ن� ��ر � �ا �ر ��ا ہا� �ِ) � ہا�١١ ( روا �ا� ہا� ر� �  � � � �� ود � � � � � � � � � �  ہ�او رواِ  �  ،� د��  ہ� �ا ل�ر م� �� � � رد � � ى� � راو � �ز �� � � نا روا  ۔ � � � ں� �� � ں�ود �� �� � ب� � ں�ز � � ن�ا� و � � ں� �� �ا گ� �� � �� ر � ہ� �أ  �آ � � �� �� �ا� ٗہ� روا � �� �� ۔ ٔ �ود�ا �� ل�ر م� م� � � ن� �َ � سا � � � ش  � � ے�د � � ر�ا � ل� � � �ر �� �ر � � � � �۔" ٤۔  ہ� �ا �� �� �اور� �� � ى� �  ل�ر م�)ٔ�آ ��ّ��� ( � سا روا   � �� � � �� � �د � ن� � � ے�روا � � ود �  ر� گ� ٹر�ر � � Crl.A. No. 382/2011 3 �  ن��� �� �� ِ�ز �������� ��� �� ہد��  ں�ود � ں� ،�� � ں� � �  ا ٹر�ر �ا ��ا � ق�ا � �اڈ ، �) � ہا�١ ( ۔� ر� �  �� ہ�� ت�  �اڈ ��ز روا ٥۔  � �م��ا��  � � ں� ،� � �ا� ِ�اد ن�� ف� � م� � ١٢ ��ا ِ ن�ا�   �د ِ�ز ن� � م� ۔�� �٣٤٢ٔ��   � ع�د �ا � ہ� �ا روا � � � ىرا��   ن��ا� ہا� �ا) � ع�د  ہا�١ ( � ہ� �ا � �ا�ا ِ�ا� � م��ا � �� ۔� ���  ود  ل� �ا � �ور �� ود � روا ت� �ا� �� ۔�د � � �� ادا � ء �رو � ٦۔ � جر� � ر�� ، �� ِ�ا� �ا � ہ� �ا�ا� روا �  (Murder Reference)  ىر� و �� �ا��  با�۔ �د � ت�ا ٧۔   �� � � تد� � ��ا �� �ا �َ � ٹر�ر ��ا �ا�ا � � �د� ��� � ٔ��� � �  جرد  تادراو  � � �ا ٹر�ر ِ� � �٩ � � ٤٥ � و � � � � � �� ند  �   � �� � � ے� �� � �آ ف� رواِ س� �� ۔�� � ��  � � سا � � � � �   ۔� � م� � �� روا ىرا��ا � �� ہ� �ا �� �� �ا روا ن� �ا � ع�د � ر � تد� ہد� �ُ � � � � � ��و � و� � ر� � � �� � � ت��ا� � �  ا �اُ ۔� � � ع�د �ا � سٔ� � � �� � تادراو ��  � � � � �� � �� ہ� �ا� � �� روا �آ � �� �  ��  � ل� ى� � � � �اد ر�ا� � �ر روآ � ى  ��روا �و��� م� � � �ارآ ��  � �� �� �  � ر� ى�� م�� ��ا ن�ا�ِ �   �آ �۔ ن�رد � ت�� ں�ود ٹو�ر ى� ا� � ہ� �ا � �� س� �� � ءا�ا  ٔ ہدارا ،ا� �اد � ل� �� �� � � روا ىر� � ر� ���� �� م� �� �و� ۔ ٨۔  �ات���ِّ ٔ��و � � ��ا  � �� � �ا � روا س� � � سا � � �د � � سا � � � ن� ح� � ��و � � ��ح� � دز� �  ع�د � ہ� �ا � � ا  � � � � �۔ � � رو� �� � Crl.A. No. 382/2011 4 ٩۔ ہا� �ا  ��ا)�١٠ ( � � � ل� روا ل�ر م� � � �� � �ا � �  � �� ل�ر م� روا � م�ا � ل� �� روا � �� م� � �� � �ا � ج� ��  �� �  � � )ل� ( ى� ن�رد � ں�ود ں� روا  � �ار  � �� ل� م�ا �ا �  � � ۔� �� �آ � � � �  ل� ت�وا �ا ہ� �ا روا �� را�ا  �ر � �ود �� � م� � ��د� � �ا� �و�ور ن� �ا � � ٹر�ر ��ا �ا�ا �ا   ں�� ��� � � �� ���ا روا ح�اروا� � �� �  � �اڈ ن� � �� �ا�ا  �ا  �ر�ا � �ا� س�ور � � م�� ِ�و � ں�ا ۔ � � ن� � � � � � � � ر�ا � �� سا � ع�د �ور را� �� �� �ا � � ہ� �ا � � � ل� �   � � ض� � � روا �ر ہو ل� د�و� � �� �� ر� ر� �� �او � ہ� �ا  � ر� �  �او � �ر �ا � ہ� �ا ��و ِ�� � � ر�ا � � �� سا � � ۔� � � �� �   � � حو�  � ل� � ع�د �ا � ہ� �ا روا �� روآ � � سا ں�ود � روا ل�  � راو � ے�ڈ � سا � � �� � � � ت� � � روا � � � � ء� � � ہ� �ا ۔� راو � ى� � � سا �آ � � � ��ا ہا� ے�ود ح� �ا ) �١١ ( �ا � �  � � ن� �ا�ا �� �د � �� � ��و ِ�� ر�ا ��ا ىرو� � � ، � ن� �ا��  �  ف�ا �� � ر� �� �� �� ہد�آ �� � راد� � �ا � تد� �ا � ہر�� ہا� ۔ � �ادراو �� ت�ز � ہ� �ا � � دا�ا ں� �� ت � �ا نارود � �� �و �� �   ۔� � ى�ِ�� �� � �� � � م� � ىرا��د � �ا � ح� �ا ڑ� � ��و   � � � ڑو� م�� � �ر � ء�ا � �ا� � �� � روا ۔� � �� ن� �ا � �  � � سا � � ں� � ح� نارودِ� ن�ا� �د � � تادراو �  � � � ��  �د�� � نا � �� � ے�ود۔� �� � ١٠۔  �ا� و � روا ر� �ا� �ا � ت�او �� �ر� � �ور � � � �ر��د ��   د� �� ود �� � �ا� �رُ �دادو �� �ا � � � � � �آ � ع � سا ��و ِ�� Crl.A. No. 382/2011 5  ہ� �ا روا ��ا � �� � � ں�ود ا� ��و �� ت�او �ا � روا � �� � � ار� �  � � � ،� � �� � �ر � ء�ا � ،�ا� ا���  �� �  ل�ا �ر �   نا�" ہ�و�� م� ىر�� � �" ��ر � �� � ن�� � �(PLD)  ل� ١٩٦٢ �� � ٥٠٢� ہ� �� �  �  � ِ�ا� � � � روا  ��" ر�� م� ہ�و �و� �از") ن�� ت� � � �� ��ر � (PLD)  ل� ہ� ��١٩٩١� � �٥٥٨ ( � ��ا � ��ا � � �ز�  ۔�� �� �� � ح� ىر� � ں�� � ف�ا �� � �� ١١۔ ٔ�و � ��ا � ا� �� �د � � � ت�  د�  �ا � ر�ا � �د �ر � � �   ں�� � ہ� ى�ود � � �د را� � � � � �  ��ٔ�و سا � ہ� �ا د�  � �   � � �د �ا ہو � � ت� � �د ن � ں� روا � � د�ٔ�ر �� �ا �ا روا � �د �  جاودزا ۔� � � �� � � � � أِ �آ � ہ� �ا ح� ��)ى� ( � � ل� �  روا   �د را� � � ں�ود نا ى� �ا � � � � ر او � ىر�ا د� ،� ��د �ا روا �آ �  � � ن� �� � �� �� ل�ا۔ �رز � ف�ا ا� و �� � � �� � ں��ا ت�� �ا ك� � �د�آِ ��و ۔�� � ش� �  �� ��و � �ا سا � ں� ں�ود ہ� �ا روا ن�ا� � ��ا � � �ز� � سا  اَى� � � � � � �)ٔ �آ� (ا� � ى� م� �ا �او �� �� و ى� ساِ� �   � � س� �� �� � �� � ت��وِ ۔� � �� � � ہد�ز � �� ��رد � ��و ١٢۔  � � � � ى� �ا � دا�ا � � � سا روا � � ل� �ود � ہ� �ا �� � م� � � � ت� �آ � � � سا ت�وا �ا ہو� � �� روا � �� �ا� �د   � �� � ہد� �� � سا �ٔ�و � ��ا �ا ا� ، ��و د�  � � ہ� �ا � �� � � ��� � � ، �� �آ � �  �ا  �د � �د �ر�� � � � �� �� � � � ر�ا    � � ن� ��و �و � � ہ� �ا ح� �ا ۔�ر را�� �ا�� " � ضو� � سا � � ��   �� ر� ر� � � اد�ا �او �ر � �ور را� �� �� �ا � � ہ� �ا �ذ � سا روا Crl.A. No. 382/2011 6  � ىر�ا � �� �او �ر ہو د�و� � ��"،�   � �ا ��ا ،�� � م� � � ��  ہ�� �ر � ت�وا � �رذ � ��اڈ � � سا  � ���� � (money order)۔� ىد� � � � ��ر � � � �رذ �   � � سا ��  � � �ادا �او � �ر  سا � ت�� ہد� � � �� تد� ط� ۔� � د��  � � ت� ف� ى�ود� ل� �د  �� و �� �ٔ�و روا � � � ہا� �ا � � د�  �� � �� � � � �� ن� � سا � روا � � � � �ا� � � � � تد� ���   � � ل� �ود  �و � ،� � ر�ا � �د � ہ� �ا �ر � سا � �ے �ا ۔� �   �ا �� ن�رد �  ��  � ىر� � ��و ِ�و � � �� � �ا � � � ل� ِ تر�  �ز� � ا�ا� �� روا �آ � � ��ا �� ں�ود � �و � � ۔� � � �ا� � � � � ہ� �ا ��� � � � � �ر ت�ز  ل�ا �� ، ن��ا� �اڈ �� � ��  ٹ�� ،ل� �� ى�� �  �� ن� � �� � روا  ٹر�ر �ا ۔� �� � ٤٩ � �  ہ� �ا � � �� ں� ح� ىر� ت� راو � ى� �ز �ا �  ا�ود � � ��ا ��  �  ت�ز   ا� ،� � � ں� � � � ت�ز  د� روا � � وز� �� �   ��روادا�  � ہ� �ا � � � � ں��د � ��و � � �� �� � �� � � � � � �  � �  ��� � � ى� � �ا �ز �ا � �و � � �� ہ� �ا � �� � ��    دا� �ا روا سا ع� ت�ز � �� � � � � ر� ��د��د � �� د� روا �و� �۔� � � � � بو�� ہ� �ا � � �ذ �� � �ا � � �رد � ہ�� ار� �   � �� ر� ى� � � �� �� � ط���ا ��� ىر� ��� �� روا ر�� �� �� روا � ا � ہ� �ا ا� � گ� خ�ر�ن  �� روآ � ىر� � � �اد � � � �� � � � � � ��� و � ��� �� ا� � � � ن� ف� � ل� � ف� د� ٔ�و � � �� ۔ �   � ع�د � �� � ہ� �ا ح� سا روا �آ � � �و ى�� �� � �� � � � � � ۔� � �� �� � � � � ن� Crl.A. No. 382/2011 7 ١٣۔ � �ر � ہ� �ا � ��ا �� روا � � � � ��و �� � � ت�ز ہد  �ا � ح� �ا � �  � � ہ�� � ��د� � �ر ہ�� �اد � �ا  سا ا�ا ِ � � �ا س  � �� �� � ن� � �د � ع�د �ا � ہ� �ا � � نا � � �ذ �� �ا � ��  �ز � � �� � ت �ز � � ح� �ا روا � � �ر � ہ� �ا ت�ز � � ل�   ہ� �ا �� ،� � � � � ہ� �ا  � �� �ا � ع�د �ا ، � � � �ر � � � �  � � � � � ى� � سا � � � � � � �� � �ا ا� ، ��ا � � ��  � � ہ� �ا �د ت�ز �ا � ل� � � تر� � � � � ں��ا � � ن��   روا � � ىزرو ف�اہو � �د �ز � � � �� ح� � �ا ہا� ،� � �د � را� �� �  � � ہ�� � �� � �� �  � � � �� ں�ود �� �� � � � �رد روا   و ���ر ہد� � ت�� ى ے�آ � ٹ� � � � ر� �اد روا � � �� � ��و ہد�آ �  ا� � �ا� � ل� تر� �ا ا� � ���� � � �� ط�ا �۔� �� � �ز ١٤۔  �� ت���ِہ� �ا � ں�ا� ں�ود /�� ود � ��  �د ِ�ز٣٠٢ ن�� تا�� ِ   � �ا� � ر� � م� �ٔ � �ا سا �  � س� �ا� � روا ر� كاردا و  � � � � � ز � � ��و � �� � � ر�ال� � �� د/ � ہ� �ا � � � روا راد� � ��  � � �ر � � سا � � � � ��و ت�ز � � �� �� � ��ا �د � ��و �  ،  � �د � ك� ۔ � �ر � � � ں��ا � روا ں�� � ف�ا � ل� تر� ساِ �ا � � ہ � � ر� � � �� � ��ا �� �� � ف�ا ِ�� �د ت� �ا� � ا� ��ا  ف� � ��ٔ�و ا� � �� � � � د ىر� � ��و روا �� � �� � ر� �رد �  �� �ا � �و � �ر � � �� �ا � ت�او �  �� ود �� � � ا� � ہ � �� �� ں�ود �� ود �� � ت� �ا��� � � � �ا �� روا � �� �  �� �ا� ں�ود � � �� �د  �� � ر� ں� � � �ا �ا � � �د �ز � ہ� �ا  ٣٨٢ب ۔ٔ��  � ىرا�� ۔� �� �د � ہ�� Crl.A. No. 382/2011 8 ٹ�:  �� �ر�ت��وِ  ��د و� ےر� ن�ز � � ِ ى��ا�ر� ٣٠۔٠١۔٢٠١٧ �  � �� � �د� �ذ � � � � �� �ا�ود:۔ “For reasons to be recorded later on, this appeal is partly allowed; the conviction of the appellant is maintained u/s 302(b) PPC along with compensation amount awarded by the Trial Court and in default thereof to suffer six months S.I. however, his death sentence is reduced to life imprisonment on both counts with benefit of S. 382-B Cr.P.C. It is further directed that both the sentences (on both counts) shall run concurrently to each other.” � � � ،د�آ م�ا٣٠،ىر�٢٠١٧� )ر� � � ��ا( �و �ا

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa, CJ Mr. Justice Gulzar Ahmed Mr. Justice Sh. Azmat Saeed Criminal Appeals No. 386, 387, 388, 389 and 390 of 2018 and Criminal Miscellaneous Application No. 487 of 2018 (Against the judgment dated 12.12.2017 passed by the High Court of Balochistan, Quetta in Criminal Ehtesab Appeals No. 18,19, 20, 21 and 22 of 2017) Chairman, National Accountability Bureau through Prosecutor-General, National Accountability Bureau, Islamabad (in all cases) …Appellant versus Mir Faiq Ali Jamali (in all cases) …Respondents For the appellant: Mr. Haider Ali, Special Prosecutor- General, Accountability (in all cases) For the respondents: Mr. Safdar Hussain Tarar, ASC Syed Rifaqat Hussain Shah, AOR (in all cases) Date of hearing: 08.07.2019 JUDGMENT Asif Saeed Khan Khosa, CJ.: The respondent namely Mir Faiq Ali Jamali was tried in connection with various References and ultimately he was convicted by the Accountability Court-I, Balochistan, Quetta for an offence under section 9 read with section 10 of the National Accountability Ordinance, 1999 and was variously sentenced. His appeals filed against his convictions and sentences were subsequently dismissed not only by the High Court Criminal Appeals No. 386, 387, 388, 389 and 390 of 2018 2 but also by this Court. Later on an application was submitted by the National Accountability Bureau before the trial court under section 33-E of the National Accountability Ordinance, 1999 seeking an order regarding recovery of fine from the respondent and the said application was disposed of by the trial court with an observation that the respondent’s disqualification started from the date the respondent paid the fine imposed upon him. The said observation of the trial court was set aside by the High Court through the impugned judgments passed by it and it was held by the High Court that the trial court was not justified in making the above mentioned observation. The impugned judgments passed by the High Court show that the controversy regarding commencement of the period of disqualification of the respondent under section 15(a) of the National Accountability Ordinance, 1999 was not resolved by the High Court. Hence, the present appeals by leave of this Court granted on 28.06.2018. 2. We have heard the learned counsel for the parties and have gone through the record of these cases with their assistance. 3. The issue raised through the present appeals is regarding the time of commencement of the respondent’s disqualification under section 15(a) of the National Accountability Ordinance, 1999. The trial court had observed that the respondent’s disqualification was to start from the date when he paid the requisite fine but the High Court had set aside that observation of the trial court without resolving the said issue. The words used by the legislature in section 15(a) of the National Accountability Ordinance, 1999 are that the period of disqualification is “to be reckoned from the date he is released after serving the sentence”. In the cases in hand the respondent had served out his sentences of imprisonment on 22.10.2013 when he was released from the jail and according to the record he had deposited the requisite fine on 29.11.2016. According to section 53, PPC the punishments to be served by convicts include a sentence of imprisonment as well as a sentence of fine and, thus, in terms of section 15(a) of the National Criminal Appeals No. 386, 387, 388, 389 and 390 of 2018 3 Accountability Ordinance, 1999 the respondent could be said to have served his entire sentence when he was to have undergone the sentence of imprisonment as well as served the sentence of fine by depositing the same. In this view of the matter the time of commencement of the respondent’s disqualification under section 15(a) of the National Accountability Ordinance, 1999 was to be the date on which he had completely served out all his sentences by undergoing the sentences of imprisonment as well as by payment of fine which was 29.11.2016. It is, therefore, clarified that the disqualification of the respondent was to be reckoned from 29.11.2016. With this clarification these appeals are allowed and disposed of. Chief Justice Judge Judge Islamabad 08.07.2019 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE JAMAL KHAN MANDOKHAIL MR. JUSTICE ATHAR MINALLAH CRIMINAL APPEAL NO. 39-K OF 2022, CRIMINAL M.A. NO. 113-K OF 2022 AND CRIMINAL PETITION NO. 613 OF 2022 (Against the judgment dated 22.04.2022 passed by the High Court of sindh, Karachi in Criminal Jail Appeal Nos. 126/2020, 185/2020 and Confirmation Case No. 03/2020) Mst. Hajira Bibi @ Seema and Mst. Shaina Hameed (In Cr.A. 39-K/2022 and Cr.MA 113-K/2022) Abdul Qaseem (In Cr.P. 613/2022) …Appellant/Appellants(s) VERSUS Abdul Qaseem and another (In Cr.A. 39-K/2022 and Cr.MA 113-K/2022) The State (In Cr.P. 613/2022) …Respondent(s) For the Appellant(s): Mr. Mahmood Habibullah, ASC (In Cr.A. 39-K/2022. Via video link from Karachi) Mr. Amir Mansoob Qureshi, ASC (In Cr.P. 613/2022. Via video link from Karachi. Also for respondent No. 1 in Criminal Appeal No. 39-K/2022) For the State: Mr. Hussain Bux Baloch, DPG (Through video link from Karachi) Date of Hearing: 06.02.2023 JUDGMENT CRIMINAL APPEAL NO. 39-K OF 2022 SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Appellants Mst. Hajira and Mst. Shaina Hameed were tried by the learned Additional Sessions Judge, Karachi, pursuant to a case registered vide FIR No. 72/2019 under Sections 302/201/202/109/34 PPC at Police Station Tamoria, Karachi. The allegation against the appellants was that they had abetted the murder of the deceased Abdul Habib, brother of the complainant, with co-accused Saeed Wali. The said co-accused Saeed Wali did not join trial and was declared a proclaimed offender. Co-accused Haroon, who allegedly facilitated the main absconding accused Saeed Wali by driving motorcycle, being juvenile was tried separately CRIMINAL APPEAL NO. 39-K OF 2022, CRIMINAL M.A. NO. 113-K OF 2022 AND CRIMINAL PETITION NO. 613 OF 2022 -: 2 :- by the learned Additional Sessions Judge, Karachi. The learned Trial Court vide two separate judgments dated 27.01.2020 convicted the appellants and co- accused Haroon as under:- Appellants Mst. Hajira and Mst. Shaina i) Under Section 302(b)/34 PPC read with Section 109 PPC To death as Tazir. They were also directed to pay compensation amounting to Rs.10,00,000/- to the legal heirs of the deceased each and in case of default in payment, they shall suffer SI for six months more. ii) Under Section 202 PPC To suffer RI for six months or to pay fine of Rs.5000/- each. In case of default, they were further directed to suffer SI for 05 days. The sentences were ordered to run concurrently. Benefit of Section 382-B Cr.P.C. was also extended to the appellants. Co-accused Haroon i) Under Section 302(b)/34 PPC To imprisonment for life as Tazir. He was also extended benefit of Section 382-B Cr.P.C. 2. In appeal the learned High Court while maintaining the conviction of the appellants under Section 302(b) PPC, altered the sentence of death into imprisonment for life. The other conviction and sentence under Section 202 PPC and the amount of compensation and the sentence in default whereof was also maintained. The convictions were ordered to run concurrently with benefit of Section 382-B Cr.P.C. However, the learned High Court acquitted co-accused Haroon and ordered his release. The prosecution story as given in the judgment of the learned Trial Court reads as under:- “3. The brief facts of the prosecution case are that complainant Abdul Qaseem son of Abdul Hameed stated that on 18.02.2019 through phone call he came to know that his brother Abdul Habib son of Abdul Hameed has been murdered due to firing and dead body shifted to Abbasi Shaheed Hospital. On such information he reached the hospital where he saw the dead body of his brother. The police conducted legal formalities, thereafter dead body was handed over to them for funeral ceremony. He further disclosed that he inquired and came to know that on 18.02.2019 his brother Abdul Habib left the house to Pakistan House in his vehicle Black Color Land Cruiser. When he reached at about 2025 to 2045 at service road, Sarena Mobile Market road near Sakhi Hassan Chowrangi, some unknown accused have made fires upon him and injured him thus he died at the spot. He further stated that his brother was member of Pak Sarzameen Party (PSP). He also remained CRIMINAL APPEAL NO. 39-K OF 2022, CRIMINAL M.A. NO. 113-K OF 2022 AND CRIMINAL PETITION NO. 613 OF 2022 -: 3 :- candidate for MPA from PS-122, hence instant FIR was lodged against unknown accused.” 3. After completion of the investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. The prosecution in order to prove its case produced 22 witnesses. In their statements recorded under Section 342 Cr.P.C, the appellants pleaded their innocence and refuted all the allegations leveled against them. However, they did not opt to appear as their own witness on oath as provided under Section 340(2) Cr.P.C in disproof of the allegations leveled against them. They also did not produce any evidence in their defence. 4. At the very outset, learned counsel for the appellants argued that the appellants were only involved to the extent of abetment but no proof in this regard could be placed on record. Contends that no specific date, time and place where the conspiracy was hatched has been mentioned in the crime report. Contends that the only evidence against the appellants is the voice messages but even if the same is believed to be true, the same does not constitute the offence with which the appellants have been charged with. Lastly contends that the reasons given by the learned courts below to sustain conviction of the appellants are speculative and artificial in nature, therefore, the appellants may be acquitted of the charge. 5. On the other hand, learned Law Officer assisted by learned counsel for the complainant vehemently opposed this appeal. It has been contended that to sustain conviction of the appellants, the prosecution has placed on record trustworthy and reliable evidence, therefore, the appellants do not deserve any leniency from this Court. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. 7. It is the prosecution story that the appellants were second wife and step daughter of the deceased, who had some business dispute with him and for this reason they hatched a conspiracy to commit murder of the CRIMINAL APPEAL NO. 39-K OF 2022, CRIMINAL M.A. NO. 113-K OF 2022 AND CRIMINAL PETITION NO. 613 OF 2022 -: 4 :- deceased with the help of appellant Mst. Hajra’s brother Saeed Wali. To bring home the guilt of the appellants the prosecution mainly relied upon the testimonies of Abdul Qasim (PW-2), Abdul Aziz (PW-3) and Ms. Wardat Izar (PW-18). A bare perusal of the record reveals that no specific date, time and place where the conspiracy was hatched has been mentioned in the crime report. The name and number of witnesses to that extent also does not find mention in the crime report. Although the above-named three prosecution witnesses were subsequently brought into picture by the prosecution in support of its case but their testimonies also do not reveal any exact date and time when the conspiracy was hatched. There are three stages in the commission of a crime, i.e. (i) the mental stage in which the crime is considered and determined upon, (ii) the preparatory stage, and (iii) the stage of execution. Before proceeding further, it would be advantageous to reproduce Sections 107 and 109 of the Pakistan Penal Code, which read as under:- “107. Abetment of a thing: A person abets the doing of a thing, who: First: Instigates any person to do that thing; or Secondly: Engages with one or more other person or, persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly: Intentionally aids, by any act or illegal omission, the doing of that thing. “109. Punishment of abetment if the Act abetted is committed in consequence and where no express provision is made for its punishment: Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence: Provided that, except in case of Ikrah-i-Tam, the abettor of an offence referred to in Chapter XVI shall be liable to punishment of ta'zir specified for such offence including death.” 8. A bare perusal of Section 109 PPC shows that the same comes into operation if there is abetment of an offence. Section 107 deals with abetment of a thing. Abetment under the said provision involves active complicity on the part of the abettor at a point of time prior to actual CRIMINAL APPEAL NO. 39-K OF 2022, CRIMINAL M.A. NO. 113-K OF 2022 AND CRIMINAL PETITION NO. 613 OF 2022 -: 5 :- commission of offence. It is essence of crime of abetment that the abettor should substantially assist the principal culprit towards commission of offence. Concurrence in the criminal acts of another without such participation therein does not per se become culpable. Mere negligence in an act also does not bring in a person within the purview of the offence of abetment. Perusal of Section 107 PPC reveals that three ingredients are essential to dub any person as conspirator i.e. (i) instigation, (ii) engagement with co-accused, and (iii) intentional aid qua the act or omission for the purpose of completion of abetment. Expression "abettor" has been defined in Section 108 PPC to mean a person who abets either commission of an offence, or commission of an act which would be an offence if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor. Intention to aid commission of the crime is the gist of offence of abetment and in the absence of necessary intention, such offence is not made out. Liability of an abettor of a crime is generally co-extensive with the principal offender. All the three ingredients of Section 107 PPC, which have been referred above, are missing in this case. We have specifically asked the learned Law Officer and the learned counsel for the complainant to show us from record any material, which could connect the appellants with the commission of the crime but except the voice messages from the Whatsapp chat of the appellants and the principal accused, they could not point out anything. Since the audio messages were in Pashto language, the same were translated into English and a transcript thereof has been placed on record as Exh.27/1. The learned High Court has also reproduced the same in the impugned judgment. We have carefully gone through the transcript of the messages and are persuaded to observe that the same do not constitute any offence. To establish the charge under section 109 PPC, it is the duty of the prosecution to produce evidence of conclusive nature in order to prove the ingredients as mentioned in the definition of abetment, referred above. However, the prosecution has not produced evidence in support of any one of the ingredients of abetment specified in section 107 PPC. Evidence produced by the prosecution in this case is unsatisfactory and is not sufficient to sustain conviction of the appellants. It is settled principle of law that the conviction must be based on unimpeachable, trustworthy and reliable evidence. Any CRIMINAL APPEAL NO. 39-K OF 2022, CRIMINAL M.A. NO. 113-K OF 2022 AND CRIMINAL PETITION NO. 613 OF 2022 -: 6 :- doubt arising in prosecution case is to be resolved in favour of the accused and burden of proof is always on prosecution to prove its case beyond reasonable doubt. It is also an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. The peculiar facts and circumstances of the present case are sufficient to cast a shadow of doubt on the prosecution case, which entitles the appellants to the right of benefit of the doubt. For the accused to be afforded this right of the benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the accused. This Court in the case of Mst. Asia Bibi Vs. The State (PLD 2019 SC 64) while relying on the earlier judgments of this Court has categorically held that “if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1995 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048).” The same view was reiterated in Abdul Jabbar vs. State (2019 SCMR 129). However, as discussed above, in the present case the prosecution has failed to prove its case beyond any reasonable shadow of doubt. 9. For what has been discussed above, this appeal is allowed and the impugned judgment to the extent of the appellants is set aside. The appellants are acquitted of the charge. They shall be released from jail forthwith unless detained/required in any other case. CRIMINAL M.A. NO. 113-K OF 2022 10. In view of the order passed in the connected Criminal Appeal No. 39-K/2022, this application for grant of bail to the appellants has become infructuous and is dismissed accordingly. CRIMINAL PETITION NO. 613 OF 2022 11. Through this petition, the complainant has called in question the vires of the impugned judgment whereby the learned High Court acquitted co- CRIMINAL APPEAL NO. 39-K OF 2022, CRIMINAL M.A. NO. 113-K OF 2022 AND CRIMINAL PETITION NO. 613 OF 2022 -: 7 :- accused Haroon. We have gone through the merits of the case and found that the learned High Court while acquitting co-accused Haroon has given cogent reasons, which are neither arbitrary nor perverse or fanciful. The learned High Court has evaluated the evidence in its true perspective and has come to the conclusion, which is unexceptionable. Learned counsel for the complainant could not point out any material to interfere with the impugned judgment. Consequently, this petition having no merit is dismissed and leave to appeal is refused. JUDGE JUDGE JUDGE Islamabad, the 6th of February, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE MIAN SAQIB NISAR, HCJ MR. JUSTICE ASIF SAEED KHAN KHOSA MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL CRIMINAL APPEAL NO.39-L OF 2015 (Against the judgment dated 16.10.2014 of the Lahore High Court, Lahore passed in Crl.A.No.2509/2010 and M.R.No.614/2010) Mst. Asia Bibi …Appellant(s) VERSUS The State etc. …Respondent(s) For the appellant(s): Mr. Saif-ul-Malook, ASC For the State: Mr. Zubair Ahmed Farooq, Addl.P.G. For the complainant: Mr. Ghulam Mustafa Chaudhry, ASC Date of hearing: 8.10.2018 JUDGMENT MIAN SAQIB NISAR, CJ. – “I bear witness that there is no God worthy to be worshiped but Allah, the One alone, without partner, and I bear witness that Muhammad (ﷺ) is his Servant and Messenger” The Qalimah-e-Shahadat as shown above, is deemed to be the essence of Islam and the recitation of which makes us Muslims, is self explanatory and testifies that there is no God but Allah and our Prophet Muhammad (ﷺ) is the Last Messenger of Allah. It is our Criminal Appeal No.39-L of 2015 -: 2 :- declaration of faith in the unseen and belief, to bow down our heads before our Lord Allah, admitting the fact that there is none like Him. 2. The sanctity of our Prophet Muhammad (ﷺ) is further evident from the Qalimah-e-Shahadat, as His name is being read together with Allah, thus ultimate care and great importance should be drawn while taking this Holy name. Tolerance is the basic principle of Islam. It is a religious and a moral duty and further relates to the dignity of human beings, the equality amongst all creations of Allah and also to the fundamental freedom of thought, conscience and belief. It does not mean compromise, lack of principles or lack of seriousness about one’s principles rather it means accepting the fact that human beings, naturally distinct in their appearance, situation, speech, behavior, and values, have the right to live in peace and to be as they are. Islam may tolerate anything but it teaches zero tolerance for injustice, oppression, and violation of the rights of other human beings the Quran speaks about, from the very beginning. Freedom of religion has been guaranteed by Islam. It prohibits coercion in matters of faith and belief. “There should be no compulsion in religion. Surely, the right way has become distinct from error.” [Al-Baqara (2:256)] Thus, as Muslims we are bound by this authoritative order and should act within the purview of such. 3. As it is enunciated in the above verse of Allama Muhammad Iqbal, a well renowned activist and the ‘Spiritual Father of Pakistan’, from his poem Jawab-e-Shikwa, the veneration and adulation of Our Criminal Appeal No.39-L of 2015 -: 3 :- Beloved Holy Prophet (ﷺ) is evident and is reckoned as the foundational principle on which the religion - Islam is based. There is no denial whatsoever of the fact that Prophet Muhammad (ﷺ) holds the utmost respect, prestige and dignity amongst the Muslim Ummah and possesses the highest rank and status compared to all Creatures shaped by Allah Almighty, even the Messengers of Allah who came before him. His outstanding demonstration of extremely lofty moral values and personal highest exemplary role model bearing an overwhelming effect on the course of history, as acknowledged by foe and friend alike, rightly deserve and demand utmost respect and honour. His teachings have undoubtedly brought about the greatest effect in changing the minds, deeds and conducts of individuals and nations. His exceptional achievements have surpassed all predecessors in all respects. 4. The unlimited and unparalleled love with Allah’s Messenger (ﷺ), is an integral part of a Muslim’s faith. In this connection the following Verses and Ahadith are very clear: - “Say, [O Muhammad], “If your fathers, your sons, your brothers, your wives, your relatives, wealth which you have obtained, commerce wherein you fear decline, and dwellings with which you are pleased are more beloved to you than Allah and His Messenger and jihad in His cause, then wait until Allah executes His command. And Allah does not guide the defiantly disobedient people”.” [At- Towbah (9:24)] By the star when it descends, Your companion [Muhammad] has not strayed, nor has he erred, Nor does he speak from [his own] inclination. It is not but a revelation revealed, [An-Najm (53:1-4)] Narrated Abu Hurairah (R.A): “Allah’s Apostle (ﷺ) said, “By Him in Whose Hands my life is, none of you will Criminal Appeal No.39-L of 2015 -: 4 :- have faith till he loves me more than his father and his children.” Narrated Anas (RA): The Prophet (ﷺ) said “None of you will have faith till he loves me more than his father, his children and all mankind”. 5. This love has to manifest itself in complete unconditional obedience to follow the footsteps of the Holy Prophet (ﷺ) as is manifested from the following Verses: “Say, [O Muhammad], “If you should love Allah, then follow me, [so] Allah will love you and forgive you your sins. And Allah is Forgiving and Merciful”.” [Ali’Imran (3:31)] But no, by your Lord, they will not [truly] believe until they make you, [O Muhammad], judge concerning that over which they dispute among themselves and then find within themselves no discomfort from what you have judged and submit in [full, willing] submission. [An-Nisa (4:65)]. It is not for a believing man or a believing woman, when Allah and His Messenger have decided a matter, that they should [thereafter] have any choice about their affair. And whoever disobeys Allah and His Messenger has certainly strayed into clear error. [Al-Ahzab (33:36)] 6. The commendable charisma and personality of our Holy Prophet (ﷺ) serves as a role model for all Muslims, in clear terms, as mentioned in the following Verses: “Certainly, you have in Allah’s Messenger an excellent example (role-model) to follow, for whoever looks forward to Allah and the last day and remembers Allah abundantly.” [Al- Ahzab (33:21)] And when you, [O Muhammad], do not bring them a sign, they say, "Why have you not contrived it?" Say, "I only follow what is revealed to me from my Lord. This [Qur'an] is enlightenment Criminal Appeal No.39-L of 2015 -: 5 :- from your Lord and guidance and mercy for a people who believe." [Al-A’raf (7:203)]. And indeed, for you is a reward uninterrupted. And indeed, you are of a great moral character. [Al-Qalam (68:3-4)] And We have not sent you, [O Muhammad], except as a mercy to the worlds. [Al-Anbya (21:107)] 7. The Holy Qur’an has unequivocally described the glorification and exaltation of Holy Prophet (ﷺ) and has ordered Muslims to strictly observe maximum respect and be extremely careful in this regard, to the extent of using most appropriate words and even lowering their voices, failing to do will render all their good deeds in vain, as mentioned in the following Verse. Among the Jews are those who distort words from their [proper] usages and say, "We hear and disobey" and "Hear but be not heard" and "Ra'ina" (ﺎﻨﻋار) twisting their tongues and defaming the religion. And if they had said [instead], "We hear and obey" and "Wait for us [to understand]," it would have been better for them and more suitable. But Allah has cursed them for their disbelief, so they believe not, except for a few. [An-Nisa (4:46)] “O ye who believe! raise not your voices above the voice of the Prophet (ﷺ), nor shout when speaking to him as you shout one to another, lest your deeds be rendered vain while you perceive not.” [Al-Hujurat (4:46)] Ibn Tamiyyah, while explaining this verse writes, “In this Verse the believers have been prohibited from raising their voices over the voice of the Prophet (ﷺ) so that their loud voice before the Prophet (ﷺ) may render their good deeds as vain while they will not understand it”. Allah Almighty declared the enemy of Prophet Muhammad (ﷺ) as the enemy of Allah and ordained that, in this temporary world and also in the eternal life hereinafter, there is a punishment of highest degree for Criminal Appeal No.39-L of 2015 -: 6 :- those who disbelieves or disrespects him. For reference, some of the Verses are mentioned hereinbelow: “Ask forgiveness for them, [O Muhammad], or do not ask forgiveness for them. If you should ask forgiveness for them seventy times - never will Allah forgive them. That is because they disbelieved in Allah and His Messenger, and Allah does not guide the defiantly disobedient people”. [At-Tawbah (9:80)] “And thus, have We made for every prophet an enemy from among the criminals. But sufficient is your Lord as a guide and a helper”. [Al-Furqan (25:31)] “Have you not considered those who were forbidden from private conversation, then they return to that which they were forbidden and converse among themselves about sin and aggression and disobedience to the Messenger? And when they come to you, they greet you with that [word] by which Allah does not greet you and say among themselves, "Why does Allah not punish us for what we say?" Sufficient for them is Hell, which they will [enter to] burn, and wretched is the destination.” [Al-Mujadila (58:8)] “May the hands of Abu Lahab be ruined, and ruined is he. His wealth will not avail him or that which he gained. He will [enter to] burn in a Fire of [blazing] flame. And his wife [as well] - the carrier of firewood. Around her neck is a rope of [twisted] fiber.” [Al-Masad (111:1-5)] “How wretched is that for which they sold themselves - that they would disbelieve in what Allah has revealed through [their] outrage that Allah would send down His favor upon whom He wills from among His servants. So, they returned having [earned] wrath upon wrath. And for the disbelievers is a humiliating punishment.” [Al-Baqarah (2:90)] “Indeed, those who disbelieve in Allah and His messengers and wish to discriminate between Allah and His messengers and say, "We believe in some and disbelieve in others," and wish to adopt a way in between - Those are the disbelievers, Criminal Appeal No.39-L of 2015 -: 7 :- truly. And We have prepared for the disbelievers a humiliating punishment.” [An-Nisa (4:150-151)] “Lo! Those who malign Allah and his Messenger, Allah hath cursed them in the world and the Hereafter, and hath prepared for them the doom of the disdained”. [Al-Ahzab (33:57)] Explaining this Verse Allama Qurtubi writes: “Everything which becomes a means of malignity ( یذا) of the Holy Prophet (ﷺ) whether by quoting words bearing different meanings or similar actions comes under his malignity. (نآﺮﻘﻟا مﺎﮑﺣﻻا ﻊﻣﺎﺠﻟا) Quran, Vol.XIV, page 238).” Allama Ismail Haqqi while explaining this Verse writes: “…..the malignity of Allah and his Prophet (ﷺ) is meant only the malignity of the Prophet (ﷺ) in fact, and mention of Allah (SWT) is only for glorification and exaltation to disclose that the malignity of the Prophet (ﷺ) is indeed the malignity of Allah (SWT).” The other Verses read as follow: - “And of them are those who vex the Prophet (ﷺ) and say: He is only a hearer. Say: A hearer of good for your, who believeth in Allah (SWT) and is true to the believers, and a mercy for such of you as believe. Those who vex the Messenger of Allah, for them there is a painful doom.” “They swear by Allah to you (Muslims) to please you, but Allah, with His Messenger, hath more right that they should please him if they are believers.” [Al-Tawbah (9:61-62)]. Ibn Taimiyyah while explaining these Verses writes: “Verse No. 62 denotes that the malignity of the Prophet (ﷺ) is the opposition of Allah and His Prophet”. (لﻮﻠﺴﻤﻟا مرﺎﺼﻟا, pages 20, 21). These Verses are linked with Verse 20 of Sura Al-Mujadila which is as under: - Criminal Appeal No.39-L of 2015 -: 8 :- “Lo! those who oppose Allah and His messenger, they will be among the lowest.” [Al-Mujadila (58:20)]. Thus, all of these Verses of the Holy Qur’an, mention in clear terms, that these abusers and contemners of the Prophet are actually the opponents of Allah and His Prophet (ﷺ) about whom the Qur’an says: “When thy Lord inspired the angels, (saying) I am with you. So, make those who believe stand firm. I will throw fear into the hearts of those who disbelieve. Then smite their necks and smite of them each finger.” [Al-Anfal (8:12)] “That is because they opposed Allah and His messenger. Whoso Opposeth Allah and His messenger, (for him) Lo! Allah is severe in punishment.” [Al-Anfal (8:13)] “And if Allah had not decreed migration for them. He verily would have punished them in this world, and theirs in the Hereafter is the punishment of the Fire.” [Al-Hashar (59:3)] “That is because they were opposed to Allah and His messenger; and whoso is opposed to Allah (for him) verily Allah is stern in reprisal.” [Al-Hashar (59:4)] 8. These Verses clearly prescribe the severe punishment of death for the opponents of Allah and his Prophet (ﷺ), who include contemners of the Prophet (ﷺ). Thus, no one by words - either spoken or written - directly or indirectly, is allowed to disobey, disregard and rebel against the Holy name of Prophet Muhammad (ﷺ) and if found guilty of disrespecting the name they are liable to be punished. History has remained a witness itself to the incidents pertaining to any attempts of defiance made in the name of our Beloved Holy Prophet (ﷺ). The Muslim communities that exist around the globe have always acted against any such act of contempt and have openly reacted to such, followed by serious repercussions. That is why anything which in any Criminal Appeal No.39-L of 2015 -: 9 :- way attacks any aspect of his sacred life, infuriates Muslims to an intolerable limit, resulting in extremely serious law and order situation, with grievous, disastrous consequences. That is why Section 295-C had to be enacted to bring such contemners before the Court of Law. 9. Reference may be made to an incident which occurred in 1923, when one said person, Rajpal, published a pamphlet/book containing derogatory remarks against Prophet Muhammad (ﷺ). A movement was launched by the Muslims of the sub-continent demanding a ban on the book. As a result, in 1927 the British Government was forced to enact a law prohibiting insults aimed at founders and leaders of religious communities, as such, section 295-A was inserted in the Pakistan Penal Code in the year 1927. However, the Muslims were not satisfied with it and one Ghazi Ilm-ud-Din Shaheed succeeded in murdering Rajpal. After the trial, Ilm-ud-Din was convicted and was given death penalty. He is considered by the Muslims to be a great lover of the Prophet (PBUH). 10. After the independence, to ensure that no attempt could be made to defy the Prophet Muhammad (ﷺ), a new provision was introduced in Pakistan Penal Code, 1860 (PPC), which reads as under: - “295-C. Use of derogatory remarks, etc., in respect of the Holy Prophet: Whoever by words, either spoken or written, or by visible representation or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.” As per this provision, the act of blasphemy was made culpable and the sentence provided was either death or imprisonment for life along with a Criminal Appeal No.39-L of 2015 -: 10 :- fine. The validity of this provision was considered by the Federal Shariat Court in the case titled as Muhammad Ismail Qureshi Vs. Pakistan through Secretary, Law and Parliamentary Affairs (PLD 1991 FSC 10) wherein the Court ruled that Section 295-C of PPC was repugnant to the fundamental principles of Islam to the extent that it provided for the punishment of life imprisonment which acted as an alternative to a death sentence. It was held that the penalty for contempt of the Holy Prophet (ﷺ) is death. It was further held that if the President of the Islamic Republic of Pakistan did not take any action to amend the law before 30th April, 1991, then Section 295-C would stand amended by the said ruling. An appeal was filed before the Shariat Appellate Bench of this Court, which was dismissed for want of prosecution. 11. As mentioned above, Muslims all over the world have immense love, admiration and affection for Prophet Muhammad (ﷺ) more than their own lives or the lives of their parents and children. No one could be allowed to defy the name of the Holy Prophet Muhammad (ﷺ) nor could a person guilty of disrespecting the Holy Prophet (ﷺ) be let off scot-free. Even the Government has always made efforts at the national and international level to eliminate instances of blasphemy of the Holy Prophet (ﷺ). For instance, in March 2009, our government presented a resolution to the United Nations Human Rights Council in Geneva condemning “defamation of religion” as a human rights violation, which called upon the world to formulate laws against the defamation of religion. The resolution was adopted on 26.3.2009 despite wide concerns that it could be used to justify restrictions on free speech in Muslim countries. The efforts of our government succeeded in imposing global limitations against any attempt to defy a religion or belief, on the basis of Criminal Appeal No.39-L of 2015 -: 11 :- freedom of expression. The social media website “Facebook” was blocked as it promoted and hosted a page called as “Everybody draw Muhammad Day”. This was another attempt made by the authorities to stop these malicious and vexatious attempts to sabotage the Holy name. The ban was lifted when Facebook prevented access to the said page. In June 2010, seventeen websites were banned for hosting content which were offensive and demeaning to Muslims. Since then the authorities have been monitoring the content of various websites including Google, Yahoo, YouTube, Amazon, MSN, Hotmail and Bing and all social media websites which are used globally and have a direct impact on people. 12. As noted above, no one could be allowed to defy the name of the Holy Prophet Muhammad (ﷺ) and be left unpunished, but there is another aspect of the matter; sometimes, to fulfill nefarious designs the law is misused by individuals leveling false allegations of blasphemy. Stately, since 1990, 62 people have been murdered as a result of blasphemy allegations, even before their trial could be conducted in accordance with law. Even prominent figures, who stressed the fact that the blasphemy laws have been misused by some individuals, met with serious repercussions. A latest example of misuse of this law was the murder of Mashal Khan, a student of Abdul Wali Khan University, Mardan, who in April 2017 was killed by a mob in the premises of the university merely due to an allegation that he posted blasphemous content online. 13. Reference may also be made to the case of one Ayub Masih, who was accused of blasphemy by his neighbour Muhammad Akram. The alleged occurrence took place on 14th October 1996, the accused was arrested, but despite the arrest, houses of Christians were set ablaze and Criminal Appeal No.39-L of 2015 -: 12 :- the entire Christian population of the village (fourteen families) were forced to leave the village. Ayub was shot and injured in the Sessions Court and was also further attacked in jail. After the trial was concluded, Ayub was convicted and sentenced to death, which was upheld by the High Court. However, in an appeal before this Court, it was observed that the complainant wanted to grab the plot on which Ayub Masih and his father were residing and after implicating him in the said case, he managed to grab the seven-marla plot. The appeal was accepted by this Court and the conviction was set aside. 14. At this jucture, it is to be noted that Islam as stipulated in Holy Book “Quran” teaches us, amongst many other virtues, to live in peace and harmony, with compassion and love to our other fellow human beings. It is the masterpiece of guidance and knowledge bestowed upon us by the Allah Almighty, which cannot be modified in any way whatsoever, thus being the final book. The commandments of Allah are entrenched in the Quran which provides for a complete way of life and teaches us the concept of tolerance. It is however to be kept in mind that unless proven guilty, through a fair trial, as provided for in the Constitution and the law, every person is considered innocent, irrespective of their creed, caste and colour. The Holy Quran has mentioned in clear terms that:- “….. he who slays a soul unless it be (in punishment) for murder or for spreading mischief on earth shall be as if he had slain all mankind; and he who saves a life shall be as if he had given life to all mankind. ……”. [Al-Ma’idah (5:32)] Moreover, it is also pertinent to mention that awarding a sentence is the duty of the State and no one else has the authority to take law into his hands and punish anyone on his own. After allegations regarding Criminal Appeal No.39-L of 2015 -: 13 :- contempt etc., a fair opportunity for offering defence before a competent court, has to be provided so that proper justice is done. This will eliminate the chances of false allegations prompted by ulterior motives, as has been done in several cases in the past. 15. It is worth mentioning that it is a matter of great pride and satisfaction that we are governed by a written Constitution and Statutory Laws. The Constitution, as per Article 4 thereof mandates that “to enjoy the protection of law and to be treated in accordance with the law is an inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. In particular (a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law (b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and no person shall be compelled to do that which the law does not require him to do”. As per Article 37 of the Constitution, it is the duty of the State to ensure that justice is dispensed inexpensively and expeditiously to the People of Pakistan. As per Article 175(2) of the Constitution, “no court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law”. Section 28 of the Criminal Procedure Code, 1898 (Cr.P.C.) provides that subject to the other provisions of the said Code, any offence under the Pakistan Penal Code may be tried (a) by the High Court, or (b) by the Court of Sessions, or (c) by any other Court by which such offence is shown in the eighth column of the Second Schedule to be triable. Thus, under the authority and command of the Constitution and the Law, it is the duty of the State to ensure that no incident of blasphemy shall take place in the country. In case of the commission of such crime, only the State has the authority to bring the machinery of law into operation, bringing the Criminal Appeal No.39-L of 2015 -: 14 :- accused before a Court of competent jurisdiction for trial in accordance with law. However, it is not for the individuals, or a gathering (mob), to decide as to whether any act falling within the purview of Section 295-C has been committed or not, because as stated earlier, it is the mandate of the Court to make such decision after conducting a fully qualified trial and on the basis of credible evidence brought before it. No such parallel authority could in any circumstances be bestowed upon any individual or a group of persons. For this reason, this Court has held that the “Commission of blasphemy is abhorrent and immoral besides being a manifestation of intolerance but at the same time a false allegation regarding commission of such an offence is equally detestable besides being culpable. If our religion of Islam comes down heavily upon commission of blasphemy then Islam is also very tough against those who level false allegations of a crime. It is, therefore, for the State of the Islamic Republic of Pakistan to ensure that no innocent person is compelled or constrained to face an investigation or a trial on the basis of false or trumped up allegations regarding commission of such an offence.” [see: Malik Muhammad Mumtaz Qadri Vs. the State (PLD 2016 SC 17)] 16. In this backdrop, we shall now consider the facts of the instant case. This matter has genesis in a criminal case, which has emanated from FIR No.326 dated 19.06.2009 under Section 295-C P.P.C., registered at Police Station Sadar Nankana Sahib, by one Qari Muhammad Salaam (PW.1) stating therein that on 14.6.2009, the appellant Mst. Asia Bibi, belonging to Christian community of the village, along with other Muslim ladies, including Mafia Bibi (PW.2), Asma Bibi (PW.3) and Yasmin Bibi (given up PW), was plucking Falsa (Grewia/purple berry), in the field belonging to one Muhammad Idrees (CW.1) where the appellant uttered derogatory remarks against the Holy Criminal Appeal No.39-L of 2015 -: 15 :- Prophet Hazrat Muhammad (ﷺ). The said PWs narrated the matter to the complainant/Qari Muhammad Salaam, who on 19.6.2009, called the appellant in a public meeting and inquired about the occurrence, where the appellant confessed her guilt. Thereafter, Qari Muhammad Salaam lodged the complaint before police and consequently the FIR was registered. 17. Before proceeding further, it may be pertinent to signify that the alleged incident, being a heinous crime and involving religious sentiments, attracted the media, both electronic and print, and generated both grief and rage in the public at large. 18. On account of the investigation, the appellant was indicted in the matter; she was arrested and challaned by the police and charged by the learned Addl. Sessions Judge, Nankana Sahib with the offence under Section 295-C of PPC. 19. During the course of the trial the prosecution examined as many as seven witnesses, including Qari Muhammad Salaam/complainant (PW.1), two eye witnesses of the occurrence i.e. Mafia Bibi (PW.2) and Asma Bibi (PW.3), a witness of extra judicial confession Muhammad Afzal (PW.4) and three police witnesses (PW.5 to 7). Whereas, (PW’s) Yasmin Bibi and Mukhtar Ahmad were given up and the prosecution evidence was closed. However, Muhammad Idrees, the owner of the fields was examined as Court witness (CW-l). 20. The appellant had her statement recorded under Section 342 Cr.P.C. wherein she categorically denied the allegations made against her. Further to that, it was also stated that her involvement in this case is being maliciously framed by the eye witnesses due to a quarrel arising out of the fetching of water which escalated the situation and led to the Criminal Appeal No.39-L of 2015 -: 16 :- exchange of heated words between her and the said ladies. However, neither the appellant appeared as her own witness to record statement on oath under Section 340 (2) Cr.P.C. nor did she opt to lead any defence evidence. 21. After the conclusion of the trial, the learned trial Court vide impugned judgment dated 08.11.2010, convicted the appellant under Section 295-C and sentenced her to death with a fine of Rs.100,000/- and in default whereof, to further undergo six months’ SI. The Capital Sentence Reference No.614 of 2010 (wrongly mentioned as Murder Reference) was forwarded under Section 374 Cr.P.C. by the trial Court to the learned High Court for confirmation or otherwise of the sentence of death, whereas, the appellant challenged her conviction/sentence through Criminal Appeal No.2509 of 2010. 22. The learned High Court heard the appeal as well as the reference and vide the impugned judgment, dismissed the appeal of the appellant and answered the Reference in the affirmative, consequently the death sentence awarded to the appellant Mst. Asia Bibi was confirmed. Being aggrieved, the appellant has filed this appeal with the leave of the Court granted vide order dated 22.7.2015, inter alia, to consider and appreciate the evidence on the record. 23. At the outset it was pointed out by the learned counsel for the complainant that at the time the instant appeal is barred by 11 days, as such, liable to be dismissed on this score alone. In this regard it is to be noted that when the instant appeal (petition) was filed, the appellant was in jail and confined to death cell. In the instant case, as the appellant has been sentenced to death, we deem it appropriate to reappraise the evidence to ensure that the conviction and sentence recorded against her had been validly recorded. Besides, the matter of Criminal Appeal No.39-L of 2015 -: 17 :- life and death of a lady is involved, therefore, the appeal should not be dismissed on mere technicalities. In this view of the matter, the delay in the filing of the appeal is condoned. 24. It is the case of the appellant that on the fateful day an altercation took place between the appellant and both the eye witnesses, namely Mafia Bibi (PW.2) and Asma Bibi (PW.3) in the vicinity of the field owned by Muhammad Idrees (CW.1), over the fetching of water which was offered by the appellant. However, the offer was refused, and it was said that because she is a Christian they would never take water from her hand. Over this, a heated argument took place with the exchange of some bitter words between them and as a result of this disagreement, those ladies, in connivance with the complainant, Qari Muhammad Salaam, ignited the situation and wrongly implicated her (the appellant) in this case. Furthermore, the alleged extra-judicial confession was not voluntary but rather resulted out of coercion and undue pressure as the appellant was forcibly brought before the complainant in presence of a gathering, who were threatening to kill her; as such, it cannot be made the basis of a conviction. There is an inordinate delay of about five days in lodging of the FIR which casts a serious doubt and shadow about the probity of the witnesses, and in fact, after the deliberations, a false story was concocted by the witnesses and reported to the police. Even otherwise, the complaint submitted to the police was drafted by an Advocate. The appellant, in her statement recorded u/s 342 Cr.P.C, expressed her full respect to the Holy Prophet (ﷺ) and the Holy Quran and she offered to take an oath on the Bible to the Investigation Officer (IO) to prove her innocence which was refused by the IO. Therefore, the appellant being innocent deserves acquittal. Further, no prior permission Criminal Appeal No.39-L of 2015 -: 18 :- of the Central/Provincial Government was obtained before the registration of the FIR. 25. First of all, we shall consider the validity of the proceedings in absence of a permission from the concerned Government. In this regard it is to be noted that under Section 196 of the Cr.P.C., no Court could take cognizance of any offence punishable under Section 295-A, P.P.C. unless the complaint was made by the order of or under authority from Central or Provincial Government or some officer empowered in that behalf by either of the two governments, but there was no requirement under the said Section for taking cognizance of the offence under Section 295-C of PPC. Besides, it was contended by the learned counsel for the petitioner that as per Section 156-A of Cr.P.C., in a case involving the commission of offence under Section 295-C PPC, no officer below the rank of a Superintendent of Police is authorized to investigate in to the matter. In the instant case, as is evident from its statement, the investigation was entrusted to Muhammad Arshad, SI (PW-7), who recorded the statement of witnesses under Section 161 of Cr.P.C., prepared the site plan and also arrested the accused. Therefore, a violation of Section 156-A of Cr.P.C had been committed. In this regard it is to be noted that though initially the investigation was assigned to a Sub-Inspector, but later on vide letter dated 26.6.2009 the same (investigation) was transferred to one Muhammad Amin Bukhari, SP (Investigation), Sheikupura who completed the same, therefore, the defect, if any, stood cured. 26. It has been advocated by the respondent’s side that the appellant has committed a heinous offence which has offended the feelings of Muslims; therefore, she does not deserve any leniency by this Court. The explanation given to the court pertaining to the delay of 5 Criminal Appeal No.39-L of 2015 -: 19 :- days in lodging of the FIR was said to be based on the significance and the gravity of the situation. The allegations made were of serious nature which required a proper scrutiny and had to be first verified by the complainant himself after which the matter was reported to the Police. Both the eye witnesses, in whose presence the derogatory remarks were passed by the appellant, have not been cross-examined on the decisive and pivotal aspect of the case i.e. blasphemy. Therefore, the learned trial court has rightly convicted and sentenced the appellant. 27. Heard the learned counsel for the appellant, the learned Additional Prosecutor General as well as the learned counsel for the complainant and the record has been perused with their able assistance. 28. The entirety of the prosecution case revolved around the statement of two ladies, namely, Mafia Bibi (PW.2) and Asma Bibi (PW.3) and the extra-judicial confession of appellant. The said (PW’s) stated that the appellant, in the presence of other Muslim ladies, passed derogatory remarks against the Prophet Muhammad (ﷺ). It is pertinent to mention here that admittedly, as is evident from the contents of the FIR and also the statements of the witnesses, there were 25-30 ladies present at the spot when the appellant allegedly passed blasphemous remarks against the Prophet Muhammad (ﷺ), however, none of the other ladies except Mafia Bibi (PW.2) and Asma Bibi (PW.3) reported the matter to anyone. At this stage, it is to be noted that the said ladies did not appear before the Court to support the prosecution case. One of the other ladies, i.e. Yasmin Bibi (given up PW), though was initially included in the list of witnesses, yet was not produced in the witness box and was given up. This creates doubt regarding the prosecution story, however, a thorough analysis of the statements of all the essential witnesses is required in Criminal Appeal No.39-L of 2015 -: 20 :- order to reach towards a just and proper conclusion, which shall be made at the later stage. Whereas, as is apparent from the statement of the appellant recorded under Section 342 Cr.P.C., she negated the allegations in the following terms: - “I am a married woman having two daughters. My husband is a poor labourer. I used to pluck Falsa from the fields of Muhammad Idrees along with a number of other ladies on the basis of daily wages. On the alleged day of occurrence, I along with number of ladies were working in the fields. Both the ladies Mst. Mafia Bibi and Mst. Asma Bibi PWs quarreled with me over fetching water which was offered by me to bring for them, but they refused saying that since I am Christian, they will never take water from my hand. Over this the quarrel ensued and some hot words were exchanged between me and the PWs ladies. The PWs then approached Qari Saalam complainant through his wife who remained teaching the both ladies, hence, the PWs were conspiring with Qari Saalam got a false, fabricated and fictitious case against me. I offered my oath to police on Bible that I had never passed such derogatory and shameful remarks against the Holy Prophet (PBUH) and the Holy Quran. I have great respect and honour to the Holy Prophet (PBUH) as well as Holy Quran and since police had conspired with the complainant, so, the police have falsely booked me in this case. The PWs are real sisters and interested to unfaithfully involve me in this case as they both felt disgrace and dishonour on the basis of altercation and hard words extended to them. Qari Saalam, the complainant is also an interested person and both the ladies remained teaching Holy Quran from his wife. My forefathers are living in this village since the creation of Pakistan. I am also about 40 years old and since the alleged occurrence, no complaint of such nature has ever accrued. I am a Christian and I live in the village, so, being ignorant of any Islamic thought, how can I use such clumsy and derogatory remarks against the beloved Prophet (PBUH) of Allah and the Divine book viz. Holy Quran. (PW) Idrees is also an interested witness who has close family links with their above said ladies.” Criminal Appeal No.39-L of 2015 -: 21 :- 29. There is no denial of the fact that the FIR was registered with a delay of 5 days. The only explanation given by the complainant for such an inordinate delay is that the occurrence took place on 14.6.2009 but the same was brought to his knowledge by Mafia Bibi (PW.2), Asma Bibi (PW.3) and Yasmin Bibi (given up PW) on 16.6.2009; during the period from 16.6.2009 to 19.6.2009 he as well as other people of the area kept on investigating the matter and after being satisfied that the occurrence had taken place, they reported the matter to the police for registration of the FIR. In this regard reference has been made by the learned counsel for the complainant on the judgments of this Court reported as Zar Bahadar Vs. the State (1978 SCMR 136) and Sheraz Asghar Vs. the State (1995 SCMR 1365) to contend that the delay in registration of a FIR is not per se fatal in all the cases as it never washes away nor torpedoes trustworthy and reliable ocular and circumstantial evidence. There is no cavil to the proposition, however, it is to be noted that in absence of any plausible explanation, this Court has always considered the delay in lodging of FIR to be fatal and castes a suspicion on the prosecution story, extending the benefit of doubt to the accused. It has been held by this Court that a FIR is always treated as a cornerstone of the prosecution case to establish guilt against those involved in a crime; thus, it has a significant role to play. If there is any delay in lodging of a FIR and commencement of investigation, it gives rise to a doubt, which, of course, cannot be extended to anyone else except to the accused. Furthermore, FIR lodged after conducting an inquiry loses its evidentiary value. [see: Iftikhar Hussain and others Vs. The State (2004 SCMR 1185)] Reliance in this behalf may also be made to the case titled as Zeeshan @ Shani Vs. The State (2012 SCMR 428) wherein it was held that delay of more than one hour in lodging the FIR give rise to the inference that occurrence did not take place in the manner projected Criminal Appeal No.39-L of 2015 -: 22 :- by prosecution and time was consumed in making effort to give a coherent attire to prosecution case, which hardly proved successful. Such a delay is even more fatal when the police station, besides being connected with the scene of occurrence through a metaled road, was at a distance of 11 kilometers from the latter. In the case titled as Noor Muhammad Vs. The State (2010 SCMR 97) it was held that when the prosecution could not furnish any plausible explanation for the delay of twelve hours in lodging the FIR, which time appeared to have been spent in consultation and preparation of the case, the same was fatal to the prosecution case. In the case titled as Muhammad Fiaz Khan Vs. Ajmer Khan (2010 SCMR 105) it was held that when complaint is filed after a considerable delay, which was not explained by complainant then in such situation it raises suspicion as to its truthfulness. Thus, we are of the view that in the facts and circumstances of the case, the explanation given by the prosecution is not plausible. Another important aspect of the matter is that the complainant (PW-1) in his statement admitted that the application for registration of FIR was drafted by an Advocate; however, he could not mention his name. This also cast doubt on the truthfulness of the story narrated in the FIR. 30. Further to that, there were many discrepancies/ inconsistencies in the statements of the PWs; inasmuch as, the variations made by Mafia Bibi (PW.2) from her earlier statement recorded under Section 161 Cr.P.C. and when got confronted to her are: firstly, during her cross examination she stated that there were more than 1000 people at the time of public gathering but this was not mentioned in her previous statement, secondly, during her cross examination she stated that the public gathering took place at the house of her father but it was not mentioned in her previous statement, thirdly, during her cross Criminal Appeal No.39-L of 2015 -: 23 :- examination she stated that many Ulemas were present at the public gathering but this was not mentioned in her previous statement. Likewise, Asma Bibi (PW.3) also deviated from her earlier statement recorded under Section 161 Cr.P.C. which are: firstly, during her cross examination she stated that the public gathering took place at the house of her neighbour Rana Razzaq, but this was not mentioned in her previous statement, secondly, during her cross examination she stated that there were more than 2000 people at the time of public gathering but this was not mentioned in her previous statement. Muhammad Afzal (PW.4) also made deviations from his earlier statement recorded under Section 161 Cr.P.C. which were confronted to him are: firstly, in his examination-in-chief he stated that he was present in his house when PW ladies along with the complainant and Mukhtar Ahmed came there and narrated the whole occurrence to him, but it was not mentioned previously; secondly, during his examination-in-chief he stated that the public gathering took place at the house of Mukhtar Ahmed, but this was not mentioned in his previous statement; thirdly, during his examination-in-chief he stated that the appellant was brought to the public gathering, but it was not mentioned in his previous statement. Qari Muhammad Salaam (complainant/PW.1) also transformed his earlier complaint submitted before the police for the registration of the FIR: firstly, during his examination-in-chief he stated that he was present in the village when Mafia Bibi (PW.2), Asma Bibi (PW.3) and Yasmin Bibi (given up PW) came to him and informed him of the occurrence, at that time Muhammad Afzal and Muhammad Mukhtar were also present there, however, in his complaint he stated that Mafia Bibi (PW.2), Asma Bibi (PW.3) and Yasmin Bibi (given up PW) and others informed him of the occurrence as well as informing the other people of the village; secondly, he further stated that the public gathering took Criminal Appeal No.39-L of 2015 -: 24 :- place at the house of Mukhtar Ahmed, but this was not mentioned in his complaint; thirdly, he stated that the appellant was brought to the public gathering, but it was not mentioned in his complaint. Thus, such inconsistent statements undermine the evidence of the prosecution. 31. These material contradictions and inconsistent statements of the witnesses are tantamount to cast further doubts on the coherence of the evidence pertaining to the questions set out below; - a) Who informed the complainant about the occurrence of such; b) Who was present at the time of disclosure regarding the allegation made against the appellant; c) How many people were present at the time of the public gathering; d) Where did the public gathering took place; e) What was the distance between the place of the public gathering and the house of the appellant; and f) How and who brought the appellant to the public gathering; 32. With regards to the first two issues, i.e. who informed the complainant about the occurrence and who was present at the time of such disclosure, it is to be noted that in the FIR, it has been vaguely mentioned that Asma Bibi (PW.3), Mafia Bibi (PW.2) and Yasmin Bibi (given up PW) brought the alleged occurrence to the notice of the complainant and other villagers. Whereas, Mafia Bibi (PW.2) in her examination-in-chief stated that she narrated the whole story to Qari Muhammad Salaam (complainant/PW.1) and others, however, during her cross-examination, she categorically mentioned that the matter was Criminal Appeal No.39-L of 2015 -: 25 :- reported to Qari Muhammad Salaam (complainant/PW.1) by her sister Asma Bibi (PW.3) who was a student of complainant’s wife on the evening of the same day i.e. 14.6.2009. Asma Bibi (PW.3) in her examination-in- chief stated that she along with other PWs informed Qari Muhammad Salaam (complainant/PW.1) of the matter, and Muhammad Afzal and Mukhtar were also present there. Muhammad Afzal (PW.4) in his examination-in-chief stated that he was present in his house when Mafia Bibi (PW.2), Asma Bibi (PW.3) and Yasmin Bibi (given up PW) along with Qari Muhammad Salaam (complainant) and Mukhtar Ahmed came there and narrated the whole occurrence to him. Qari Muhammad Salaam (complainant/PW.1) in his examination-in-chief stated that he was present in his village when Asma Bibi (PW.3), Mafia Bibi (PW.2) and Yasmin Bibi (given up PW) came to him and informed him about the incident; at that time Muhammad Afzal and Muhammad Mukhtar were also present there along with other villagers. Thus, the witnesses while giving their statements were not consistent in this regard. 33. Dealing with the question, as to how many persons were present at the time of the public gathering, it is to be noted that PW-1 stated that the public gathering was held in a house consisting of 5 Marla and about 100 people were present there; however, PW.2 stated that more than 1000 people were present in the public gathering; whereas, PW.3 stated that more than 2000 people were present; yet, PW.4 narrated that there may be more than 200-250 persons were present in the public gathering. Thus, the witnesses are also not consistent in this regard. 34. Pertaining to the question as to where the public gathering took place, it is to be noted that the complainant (PW.1) stated in his cross-examination that the public gathering was held at Mukhtar Ahmed’s house, while PW.2 stated in her cross-examination that the Criminal Appeal No.39-L of 2015 -: 26 :- public gathering was held at her father’s, Abdul Sattar’s house, whereas, PW.3 stated in her cross-examination that the public gathering was held at Rana Razzaq’s house, however, PW.4 stated in his examination-in- chief that the public gathering was held at Mukhtar Ahmed’s house. Yet another name was put forth in this regard by CW-1, who in his cross- examination stated that the public gathering was held at the Dera of Haji Ali Ahmed. Thus, on this issue too, there are material contradictions between the statements given by the witnesses. 35. Regarding the issue of the distance between the place of the public gathering and the house of the appellant, it is to be noted that PW.2 did not mention anything in this regard, whereas, PW.3 stated in her cross-examination that the house of the appellant was three houses away from the place of the public gathering. However, PW.4 stated in his cross-examination that the house of the appellant was at a distance of 200/250 yards from the place of the public gathering, while the complainant (PW.1) did not disclose the distance between the house of the appellant and the place of public gathering, nevertheless, according to CW-1 the house of the appellant was in front of the Dera where the public gathering took place. Thus, there are material contradictions between the witnesses on this issue as well. 36. With regard to the issues that who had brought the appellant to the public gathering and how did she got there, it is to be noted that PW.2 stated that she did not remember who brought the appellant to the public gathering but it was a resident of her village, whereas, PW.3 stated that the appellant was called to the public gathering by the people of the village and was brought on foot and the people who called her were also on foot. However, PW.4 stated that Mushtaq Ahmed brought the appellant to the public gathering, while the complainant (PW.1) stated that the people of the village went to the Criminal Appeal No.39-L of 2015 -: 27 :- house of the appellant and took her from there to the public gathering on two motorcycles, Mudassar was one of those people. Thus, on this issue too there are material contradictions between the witnesses. 37. The witnesses were also not in consonance regarding the time and duration of the public gathering. PW-2 stated that it took place on Friday at 12 noon and lasted for 15/20 minutes; PW-3 stated that the public gathering took place at 12 noon and lasted for 15 minutes; PW-4 stated that the public gathering took place at 11/12 noon and lasted for 2/ 2½ hours; whereas, complainant (PW-1) did not mention the time and duration of the gathering. Thus, there are furthers material contradiction between the witnesses. 38. A further conflict also prevails between the other PWs and the complainant. Other PWs stated that the matter was brought to the notice of complainant on the same day i.e. 14.6.2009; however, the complainant during his cross-examination stated that he was informed of the occurrence on 16.6.2009. 39. There is yet another material contradiction regarding the submission of the application to the police and registration of the FIR. At the bottom of the FIR the place of registration of the FIR has been mentioned that the FIR was registered by Mehdi Hassan, SI at “bridge canal Chandar Cot” and the time of registration is given as “5:45 pm”. Conversely, the complainant (PW-1) in his statement has mentioned that the FIR was registered by delivering the application to the SHO concerned. However, Muhammad Rizwan, SI (PW-5) stated that the complainant presented before him the complaint (Exh.PA) upon which he formally registered the FIR (Exh.PA/1). 40. With regard to the arrest of the accused, further contradictions exist in the statement of Muhammad Arshad, SI (PW-7); Criminal Appeal No.39-L of 2015 -: 28 :- inasmuch as, he (PW-7) stated in his examination-in-chief that the accused was arrested by him with the help of two lady constables, presented to the Judicial Magistrate and sent to judicial lockup. It was then stated in the cross-examination that the accused was arrested by him on 19.6.2009 from her house situated at Village Ittanwali at about 4/5 p.m., however, at a subsequent point of time it was stated by him that he reached the Village Ittanwali at about 7 p.m. and remained there for one hour. Furthermore, PW-2 and PW-3 in their statements, categorically denied the fact that an altercation/quarrel took place between the appellant and them on the fetching of water immediately before the passing of the alleged blasphemous remarks by the appellant. Whereas, PW-6 and as well as CW-1 admitted in their statements that an altercation/quarrel took place between them, thus the factum of quarrel is proved from the record. The prosecution did not declare PW-6 as a hostile witness. In this eventuality, the said PWs could not be termed as truthful witnesses and the death sentence could not be inflicted on the testimony of such eye witnesses, which even otherwise are interested witnesses. 41. All these contradictions are sufficient to cast a shadow of doubt on the prosecution’s version of facts, which itself entitles the appellant to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty. If a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz Vs. The State (1995 SCMR 1345) and Ayub Criminal Appeal No.39-L of 2015 -: 29 :- Masih vs The State (PLD 2002 SC 1048). Thus, it is held that the appellant is entitled to the benefit of the doubt as a right. 42. There is also an another facet pertaining to this matter. The learned Trial Court had relied upon the evidence of the witnesses regarding the extra-judicial confession to convict the appellant. The learned High Court has disregarded the extra-judicial confession for the reason that the evidence of extra-judicial confession furnished by the witnesses, i.e. Qari Muhammad Salaam (PW.1), Muhammad Afzal (PW.4) as well as Muhammad Idrees (CW.1), to the extent of confessing the guilt in a public gathering, cannot be termed as an extra-judicial confession because no time, date and manner of commission of offence was given and further, no circumstances under which the appellant had allegedly committed the offence, have been narrated in the alleged confessional statement. In this regard it is to be noted that this Court has repeatedly held that evidence of extra-judicial confession is a fragile piece of evidence and utmost care and caution has to be exercised in placing reliance on such a confession. It is always looked at with doubt and suspicion due to the ease with which it may be concocted. The legal worth of the extra judicial confession is almost equal to naught, keeping in view the natural course of events, human behaviour, conduct and probabilities, in ordinary course. It could be taken as corroborative of the charge if it, in the first instance, rings true and then finds support from other evidence of unimpeachable character. If the other evidence lacks such attribute, it has to be excluded from consideration. Reliance in this behalf may be made to the cases of Nasir Javaid Vs. State (2016 SCMR 1144), Azeem Khan and another Vs. Mujahid Khan and others (2016 SCMR 274), Imran alias Dully Vs. The State (2015 SCMR 155), Hamid Nadeem Vs. The State (2011 SCMR 1233), Muhammad Aslam Criminal Appeal No.39-L of 2015 -: 30 :- Vs. Sabir Hussain (2009 SCMR 985), Sajid Mumtaz and others Vs. Basharat and others (2006 SCMR 231), Ziaul Rehman Vs. The State (2000 SCMR 528) and Sarfraz Khan Vs. The State and 2 others (1996 SCMR 188). 43. Furthermore, as per Article 37 of the Qanun-e-Shahadat Order, 1984, “A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court that it has been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him”. 44. In this very instant case, the appellant was brought to a gathering of potentially hundreds of people, she was alone at the time, tensions were running high, and it was an intimidating environment, the appellant may well have felt threatened and vulnerable; thus, the alleged extra-judicial confession made by the appellant, even if presumed to have been made by her before such public gathering, cannot be termed as a voluntary action and nor it can be relied upon to form the basis of a conviction, especially for capital punishment. 45. Learned High Court while maintaining the conviction of the appellant has relied upon the testimony of the witness for the reasons that (a) the presence of the eye witnesses and the appellant at the relevant time in the field of 'Falsa ' is not denied (b) the witnesses have not been cross examined by the defence qua the offence of blasphemy alleged against the appellant and (c) the defence could not point out or even suggest any previous enmity, ill will or ulterior motive of the eye Criminal Appeal No.39-L of 2015 -: 31 :- witnesses against the appellant to falsely implicate her in the case of such a heinous nature and (d) the testimony of (CW.l), Muhammad Idrees, who was also present in the field at the relevant time, provides strong corroboration to the evidence furnished by the eye witnesses. 46. In this regard it is important to note that this Court has held that the principle, namely, the part of the statement which remains un-rebutted amounts to admission, does not attract in criminal cases. In criminal cases, the burden to prove the guilt of the accused rests heavily upon the prosecution, who has to prove its case beyond any shadow of doubt. Reliance in this behalf may be made to judgments of this Court reported as Nadeem Ramzan Vs. the state (2018 SCMR 149), S. Mahmood Aslam Shah Vs. the State (PLD 1987 SC 250) and State Vs. Rab Nawaz and another (PLD 1974 SC 87). Thus, the learned High Court has erred in law while deciding this aspect of the matter. 47. Besides, both the eye witnesses were specifically cross- examined with regards to the altercation which took place in the said field; inasmuch as, when a specific question was put to Mafia Bibi (PW.2), in her reply she stated that "It is incorrect to suggest that I recorded my statement against the accused Asia Bibi due to the quarrel which took place between me and Asia Bibi during the plucking of Falsa on the same day”. The allegation of blasphemy was also rebutted by the defence which is evident from the answer given by her (PW.2) namely, “It is further incorrect to suggest that I have deposed falsely today and listened nothing”. Likewise, a similar suggestion was also put to Asma Bibi (PW.3) who in response whereof stated that "It is incorrect to suggest that on the day of occurrence, a quarrel took place between me and the accused Mst. Asia Bibi in the said garden on the Criminal Appeal No.39-L of 2015 -: 32 :- issue of drinking water. It is also incorrect to suggest that I am deposing falsely today due to the grudge of the quarrel which took place between me and the accused Mst. Asia Bibi.” With regard to the allegation of blasphemy, a question was put to the said witness (PW.3) who replied that “It is further incorrect to suggest that I am deposing falsely, and nothing has been heard directly by the mouth of the accused Mst. Asia Bibi”. However, Muhammad Idrees (CW.l) in his examination-in-chief admitted the factum of a quarrel between the appellant and the eye witnesses as is evident from his statement which states “This led to a quarrel between them. I was also intimated about this quarrel.” In his cross-examination, he admitted that “I was at a distance of 2/3 Killa away when I came to know about the occurrence. … I confirmed about the facts. … when I came at the spot, I only came to know that there has been a disagreement between the accused and PWs which has resulted due the fetching of water.” Thus, there is no denial about the factum of the argument over the fetching of water between the appellant and eye witnesses before the alleged commission of crime. The mere presence of the appellant as well as the witnesses at the place of alleged occurrence alone is not sufficient to prove the occurrence of the offence. The defence has not contested the matter on the basis that the appellant was not present in the field, rather it has taken the plea that the appellant and witnesses were present in the field in question when the altercation took place between them, and in that resentment the witnesses had falsely implicated her (the appellant) with the help and support of the complainant. Astonishingly, 25-30 ladies were present at the spot but none of them except Yasmin Bibi (given up PW) supported the prosecution version before the complainant, and she too did not opt to appear in the witness-box to depose against the appellant. Even CW.1 has not heard the words constituting the crime of blasphemy. All this Criminal Appeal No.39-L of 2015 -: 33 :- creates doubt regarding the prosecution story. Moreover, the factum of inordinate delay of 5 days in the registration of FIR further casts a serious dent on the prosecution story. 48. It is a well settled principle of law that one who makes an assertion has to prove it. Thus, the onus rests on the prosecution to prove guilt of the accused beyond reasonable doubt throughout the trial. Presumption of innocence remains throughout the case until such time the prosecution on the evidence satisfies the Court beyond reasonable doubt that the accused is guilty of the offence alleged against him. There cannot be a fair trial, which is itself the primary purpose of criminal jurisprudence, if the judges have not been able to clearly elucidate the rudimentary concept of standard of proof that prosecution must meet in order to obtain a conviction. Two concepts i.e., “proof beyond reasonable doubt” and “presumption of innocence” are so closely linked together that the same must be presented as one unit. If the presumption of innocence is a golden thread to criminal jurisprudence, then proof beyond reasonable doubt is silver, and these two threads are forever intertwined in the fabric of criminal justice system. As such, the expression "proof beyond reasonable doubt" is of fundamental importance to the criminal justice: it is one of the principles which seeks to ensure that no innocent person is convicted. Where there is any doubt in the prosecution story, benefit should be given to the accused, which is quite consistent with the safe administration of criminal justice. Further, suspicion howsoever grave or strong can never be a proper substitute for the standard of proof required in a criminal case, i.e. beyond reasonable doubt. In the presence of enmity between the accused and the complainant/witnesses, usually a strict standard of proof is applied for determining the innocence or guilt of the accused. If the PWs are found inimical towards the accused, she deserves acquittal on the principle of Criminal Appeal No.39-L of 2015 -: 34 :- the benefit of the doubt. Keeping in mind the evidence produced by the prosecution against the alleged blasphemy committed by the appellant, the prosecution has categorically failed to prove its case beyond reasonable doubt. Reliance in this behalf may be made to the cases reported as Muhammad Ashraf Vs. The State (2016 SCMR 1617), Muhammad Jamshaid Vs. The State (2016 SCMR 1019), Muhammad Asghar alias Nannah Vs. The State (2010 SCMR 1706), Noor Muhammad alias Noora Vs. The State (1992 SCMR 2079) and Ayub Masih Vs. The State (PLD 2002 SC 1048). 49. I will end this Judgement on a Hadith of our beloved Prophet Muhammad (ﷺ); “Beware! Whoever is cruel and hard on a non-Muslim minority, or curtails their rights, or burdens them with more than they can bear, or takes anything from them against their free will; I (Prophet Muhammad) will complain against the person on the Day of Judgment.” (Abu Dawud) 50. For the foregoing reasons, this appeal is allowed. The judgments of the High Court as well as the Trial Court are reversed. Consequently, the conviction as also the sentence of death awarded to the appellant is set aside and she is acquitted of the charge. She be released from jail forthwith, if not required in any other criminal case. CHIEF JUSTICE I agree and have appended a separate concurring opinion. JUDGE JUDGE Announced in open Court on 31.10.2018 at Islamabad Approved for reporting Waqas Naseer/* Criminal Appeal No.39-L of 2015 -: 35 :- Asif Saeed Khan Khosa, J.: I have had the privilege of perusing the proposed judgment authored by my lord the Hon’ble Chief Justice and I agree with the reasons recorded and the conclusions reached therein. However, because of some important legal and factual issues involved in the case I have decided to record this separate concurring opinion. 2. Mst. Asia Bibi appellant had allegedly made some derogatory remarks against the Holy Prophet Muhammad (Peace Be Upon Him) and the Holy Qur’an on 14.06.2009 in the presence of some of her Muslim female co-workers while plucking Falsa (a kind of berry also known as grewia asiatica) in the field of one Muhammad Idrees in village Ittanwali in the area of Police Station Sadar, Nankana Sahib and for that alleged commission of the offence of blasphemy under section 295-C of the Pakistan Penal Code, 1860 (P.P.C.) she was booked in case FIR No. 326 registered at the said Police Station on 19.06.2009 at the instance of Qari Muhammad Salaam complainant, an Imam of the local mosque. It was alleged that the appellant had stated something to the effect that the Holy Prophet Muhammad (Peace Be Upon Him) had fallen ill and was bedridden for one month before his death, insects had emerged from his mouth and ear, he had got married to Hazrat Khadija (May Almighty Allah Be Pleased With Her) with the intention to loot her wealth and after looting her wealth he had discarded her. It was also alleged that on the same occasion the appellant had also uttered words to the effect that the Holy Qur’an was not a book of God and it was not a divine book but a self-made book. The appellant was arrested by the local police on 19.06.2009 soon after registration of the FIR and upon completion of the investigation a Challan was submitted before the trial court recommending her trial. The trial court framed a Charge against the appellant for an offence under section 295-C, P.P.C. to which she pleaded not guilty and claimed a trial. During the trial the prosecution produced seven witnesses in support of its case against the appellant and produced some documents and statement of a Court Witness was also recorded by the trial court. In her statement recorded under section 342 of the Code of Criminal Procedure, 1898 (Cr.P.C.) the appellant denied and controverted all the allegations of fact leveled against her by the prosecution and professed her innocence. She opted not to make a statement on oath under section 340(2), Cr.P.C. and did not produce any Criminal Appeal No.39-L of 2015 -: 36 :- evidence in her defence. Upon completion of the trial and after hearing of arguments of the learned counsel for the parties the learned Additional Sessions Judge, Nankana Sahib trying the case convicted the appellant for the offence under section 295-C, P.P.C. vide judgment dated 08.11.2010 and sentenced her to death and to pay a fine of Rs. 1,00,000/- or in default of payment thereof to undergo simple imprisonment for a period of six months. The appellant challenged her conviction and sentence before the Lahore High Court, Lahore through Criminal Appeal No. 2509 of 2010 which was heard by a learned Division Bench of the said Court along with Murder Reference No. 614 of 2010 seeking confirmation of the sentence of death passed by the trial court against the appellant and vide judgment dated 16.10.2014 the appellant’s appeal was dismissed, her conviction and sentence recorded by the trial court were upheld and confirmed and the Murder Reference was answered in the affirmative. Hence, the present appeal by leave of this Court granted on 22.07.2015. 3. Leave to appeal had been granted by this Court in order to reappraise the evidence and we have undertaken that exercise by perusing the record of the case from cover to cover with the assistance of the learned counsel for the parties. We have also carefully heard and considered the arguments advanced by the learned counsel for the parties. 4. It has been argued by the learned counsel for the appellant that an FIR in respect of the alleged occurrence had been lodged by Qari Muhammad Salaam complainant (PW1) with a delay of five days and it had been admitted by the complainant before the trial court that before lodging of the FIR deliberations had taken place amongst the members of the complainant party which delay and deliberations had denuded the FIR of its evidentiary value, as held by this Court in the case of Iftikhar Hussain and others v The State (2004 SCMR 1185). He has also argued that the prosecution witnesses had differed with each other over the place where the FIR had been lodged and the Advocate who had drafted the application for registration of the FIR had never been named. He has further argued that two independent prosecution witnesses had confirmed that a quarrel had taken place between the appellant and the ladies belonging to the complainant party before the offending words had Criminal Appeal No.39-L of 2015 -: 37 :- allegedly been uttered by the appellant but the prosecution witnesses belonging to the interested complainant party had completely suppressed such an important fact. It has also been argued by him that no independent corroboration was available confirming the allegations leveled against the appellant by the crucial prosecution witnesses appearing before the trial court, i.e. Mafia Bibi (PW2) and Asma Bibi (PW3). According to him the investigation of this case was conducted by an officer who was not competent to investigate this case as required by section 156-A, Cr.P.C. and in support of this contention he has relied upon the cases of Shaukat Ali v The State and others (2008 SCMR 553), Amjad Farooq and another v The State (2007 P.Cr.L.J. 238) and Malik Muhammad Mumtaz Qadri v The State and others (PLD 2016 SC 17). He has also submitted that it was alleged in the FIR that the appellant was a preacher of Christian faith which formed the motive in this case but no such assertion was made before the trial court by any prosecution witness during the trial. He has pointed out that none of the other female co-workers of the appellant working in the same field of Falsa was produced by the prosecution in support of its case against the appellant and, thus, the best evidence had been withheld by the prosecution and on account of such failure of the prosecution an adverse inference is to be drawn against it. With these arguments the learned counsel for the appellant has maintained that the case of the prosecution against the appellant was full of serious doubts and the benefit of such doubts ought to be extended to her. 5. As against that the learned Additional Prosecutor-General, Punjab appearing for the State has maintained that investigation of a case by a police officer not competent to investigate such case does not vitiate the investigation and in support of this argument he has referred to the provisions of section 156(2), Cr.P.C. He has submitted that the statements made before the trial court by Mafia Bibi (PW2) and Asma Bibi (PW3) were quite consistent and their statements had found sufficient support from the statements made by Muhammad Idrees (CW1) and Muhammad Amin Bukhari, SP (Investigation) (PW6). It has, thus, been maintained by him that the prosecution had succeeded in proving its case against the appellant beyond reasonable doubt. Criminal Appeal No.39-L of 2015 -: 38 :- 6. While opposing this appeal and supporting the appellant’s conviction and sentence recorded and upheld by the courts below the learned counsel for the complainant has argued that delay in lodging of an FIR is not always fatal to a criminal case and in the present case the delay stood sufficiently explained by the prosecution. He has relied in this regard upon the cases of Zar Bahadar v The State (1978 SCMR 136) and Sheraz Asghar v The State (1995 SCMR 1365). He has also argued that both the courts below had concurred in their findings and had found the appellant guilty as charged and such concurrent findings of the courts below are not be interfered with lightly. He has pointed out that in her statement recorded under section 342, Cr.P.C. the appellant had not disputed her presence in the relevant field of Falsa at the date and time of occurrence and she had also admitted having some verbal interaction with her female co-workers, including Mafia Bibi (PW2) and Asma Bibi (PW3), on that occasion and no suggestion was made to those witnesses during their cross-examination that the allegations leveled by them regarding commission of blasphemy by the appellant were incorrect. According to the learned counsel for the complainant an assertion of fact by a witness is deemed to have been admitted by the opposite party if the witness is not controverted regarding such assertion through a suggestion during his cross-examination. He has also submitted that the appellant had made multiple extra-judicial confessions about her guilt before different prosecution witnesses who had consistently deposed about the same before the trial court. In the end he has argued that the prosecution witnesses had no ostensible reason to falsely implicate the appellant in a case of this nature, their consistent statements had inspired confidence of the courts below and, therefore, the appellant’s conviction and sentence recorded and upheld by the courts below do not warrant any interference by this Court. 7. After hearing the learned counsel for the parties and going through the record of the case with their assistance I have observed that the prosecution had produced seven witnesses in support of its case against the appellant. Qari Muhammad Salaam complainant had appeared before the trial court as PW1 and had deposed about having been informed about the incident by three ladies, holding of a public gathering on 19.06.2009 wherein the appellant had allegedly confessed her guilt and had asked for forgiveness and lodging of the FIR by him on Criminal Appeal No.39-L of 2015 -: 39 :- 19.06.2009. Mafia Bibi (PW2) had deposed about the incident taking place in the field of Falsa on 14.06.2009, informing the complainant about that incident and holding of a public gathering on 19.06.2009 wherein the appellant had allegedly made a confession and had sought pardon. Asma Bibi (PW3) had also made a statement regarding the same events which were stated by Mafia Bibi (PW2). Muhammad Afzal (PW4) had stated about having been informed by Qari Muhammad Salaam complainant (PW1), Mafia Bibi (PW2) and Asma Bibi (PW3) about the blasphemy allegedly committed by the appellant and holding of a public gathering on 19.06.2009 wherein the appellant had allegedly admitted her guilt and had sought forgiveness. Muhammad Rizwan, SI (PW5) had recorded the formal FIR at the Police Station. Muhammad Amin Bukhari, SP (Investigation) had appeared as PW6 and had stated about the investigation of this case conducted by him. Muhammad Arshad, SI (PW7) was the initial investigating officer of this case and he had stated about inspecting the place of occurrence on 19.06.2009, recording of statements of witnesses, arresting the appellant, obtaining her judicial remand from a Magistrate and sending her to the judicial lock-up. Some documents were also produced by the prosecution before the trial court in support of its case. The trial court summoned and recorded the statement of Muhammad Idrees as CW1 who claimed to be the owner of the Falsa field wherein the occurrence had allegedly taken place and he also stated about the appellant confessing her guilt before him on 14.06.2009, the complainant being informed about the incident, holding of a public gathering on 19.06.2009 and the appellant allegedly confessing her guilt before that gathering and also before the investigating officer on that day. In her statement recorded under section 342, Cr.P.C. while answering a question as to why the present case was registered against her and as to why the prosecution witnesses had deposed against her the appellant had stated as follows: “I am married woman having two daughters. My husband is a poor labourer. I used to pluck Falsa from the plants of Muhammad Idrees along with number of ladies on the daily wages basis. On the alleged day of occurrence, I along with number of ladies were working in the fields. Both the ladies Mst. Mafia Bibi and Mst. Asma Bibi PWs quarreled with me over fetching water which was offered by me to bring for them but they refused saying that since I am Christian, so, they never took water from the hand of Christian. Over this, quarrel was insued and some hot words were exchanged between myself and the PWs ladies. The PWs then approached Qari Salaam complainant through his wife who remained teaching the both ladies, hence, the PWs were conspiring with Qari Salaam got a false, fabricated and fictitious case against me. I offered my oath to police on Bible that I had never passed such derogatory and Criminal Appeal No.39-L of 2015 -: 40 :- shameful remarks against the Holy Prophet (PBUH) and the Holy Quran. I have great respect and honour to the Holy Prophet (PBUH) as well Holy Quran and since police had conspired with the complainant, so, the police has falsely booked me in this case. The PWs are real sisters and interested to falsely involve me in this case as they felt disgrace and dishonor on the basis of altercation and hard words extended to them. Qari Salaam complainant is also interested person and both the ladies remained teaching Holy Quran from his wife. My forefathers are living in this village since creation of Pakistan. I am also about 40 years old and since the alleged occurrence, no complaint likewise this never exist against me. I am uneducated and no priest of Christian. So much so there is no church of the Christian in the village, so, being ignorant of any Islamic thought, how can I use such clumsy and derogatory remarks against the beloved Prophet (PBUH) of Allah and the Divine book viz Holy Quran. PW Idrees is also a interested witness who has close family links with their above said ladies.” The appellant had opted not to make a statement on oath under section 340(2), Cr.P.C. and had not produced any evidence in her defence. 8. I now proceed to evaluate every piece of evidence produced by the prosecution in the sequence of events statedly unfolding in this case. 9. Mafia Bibi (PW2) and Asma Bibi (PW3) were produced by the prosecution as witnesses of the incident allegedly taking place in the field of Falsa on 14.06.2009. The said ladies were young girls and sisters inter se and were semi-literate who had statedly received some elementary religious education in their village from the wife of Qari Muhammad Salaam complainant (PW1). Those ladies had never stated as to who was addressed by the appellant at the time of uttering the derogatory remarks, they had never disclosed in whose field of Falsa the alleged incident had taken place and they had not themselves lodged any report about the same with the local police. It is of critical importance to mention here that the senior investigating officer of this case namely Muhammad Amin Bukhari, SP (Investigation) (PW6) as well as the owner of the relevant field of Falsa namely Muhammad Idrees (CW1) had categorically stated before the trial court that the derogatory words were uttered by the appellant when there was a religious discussion between the appellant and her Muslim co-workers in the field of Falsa after Mafia Bibi (PW2), Asma Bibi (PW3) and other Muslim co-workers had stated that they would not drink water from the hands of the appellant who was a Christian by faith. According to the said witnesses it was on the basis of the said stance of the appellant’s Muslim co-workers that a “quarrel” had taken place and during the said quarrel the appellant had uttered the derogatory words against the Holy Prophet Muhammad (Peace Be Criminal Appeal No.39-L of 2015 -: 41 :- Upon Him) and the Holy Qur’an. This shows that, according to the prosecution itself, the appellant had uttered the derogatory words attributed to her after the appellant’s religion was insulted and her religious sensibilities had been injured by her Muslim co-workers including Mafia Bibi (PW2) and Asma Bibi (PW3). It is unfortunate that in the FIR lodged by Qari Muhammad Salaam complainant (PW1) and in their statements made before the police under section 161, Cr.P.C. no mention was made by Qari Muhammad Salaam complainant (PW1), Mafia Bibi (PW2) and Asma Bibi (PW3) regarding any such verbal exchange or quarrel. It is also disturbing to note that both Mafia Bibi (PW2) and Asma Bibi (PW3) had completely suppressed this factual aspect of the case in their examinations-in-chief before the trial court and when it was suggested to them by the defence during their cross- examination they simply denied any such verbal exchange and the ensuing quarrel. It is, thus, obvious that both Mafia Bibi (PW2) and Asma Bibi (PW3) had no regard for the truth and they were capable of deposing falsely and also that the said semi-literate young sisters had a reason to level allegations against the appellant which could be untrue. I propose to comment on this aspect of the case from another angle as well in the later part of this opinion. 10. Muhammad Idrees had appeared before the trial court as CW1 and he had not been produced by the prosecution but was summoned by the trial court as a Court Witness. He claimed that he was the owner of the relevant field of Falsa, he had gone to his field of Falsa on 14.06.2009 and he was informed by Mafia Bibi (PW2) and Asma Bibi (PW3) at the spot about an altercation taking place between those ladies and the appellant whereafter the appellant had made a confession before him and had sought pardon. Muhammad Arshad, SI (PW7) had stated that the place of occurrence was the field of Falsa belonging to Muhammad Idrees (CW1) and Muhammad Amin Bukhari, SP (Investigation) (PW6) had stated that Muhammad Idrees (CW1) was attracted to the field and the ladies had narrated the matter to him whereafter he inquired from the appellant who confessed before him. I have, however, found that the story about Muhammad Idrees (CW1) being attracted to the spot, being apprised of the incident by Mafia Bibi (PW2) and Asma Bibi (PW3) and the appellant confessing before him and seeking pardon was a story which was completely new and in their depositions Mafia Bibi (PW2), Criminal Appeal No.39-L of 2015 -: 42 :- Asma Bibi (PW3), Qari Muhammad Salaam complainant (PW1) and Muhammad Afzal (PW4) had not stated anything at all about Muhammad Idrees (CW1) coming to the spot, being apprised of the incident by Mafia Bibi (PW2) and Asma Bibi (PW3) and the appellant confessing before him and seeking pardon! It appears that Muhammad Idrees (CW1) was introduced in this case at some later stage by way of an afterthought. He had not joined the initial investigation of this case conducted by Muhammad Arshad, SI (PW7) and had not made any statement before him. It was the subsequent investigating officer namely Muhammad Amin Bukhari, SP (Investigation) (PW6) who had claimed that Muhammad Idrees (CW1) had appeared before him on 04.07.2009, i.e. after 20 days of the alleged occurrence and after 15 days of registration of the FIR. Such belated surfacing of the said witness was quite suspicious and in all likelihood he had been planted in this case at some subsequent stage. Apart from that the confession allegedly made by the appellant before Muhammad Idrees (CW1) was not put to the appellant at the time of recording of her statement under section 342, Cr.P.C. and the law is settled that a piece of evidence or a circumstance not put to the accused person at the time of recording of his statement under section 342, Cr.P.C. cannot be used or considered against him. The statement made by Muhammad Idrees (CW1) before the trial court is, therefore, to be kept completely out of consideration. 11. The next development allegedly taking place in this case was that Qari Muhammad Salaam complainant (PW1) was informed about the incident but the evidence brought on the record about that development was also not free from doubt. In the FIR lodged by him the complainant had stated that Mafia Bibi (PW2), Asma Bibi (PW3), Yasmin Bibi and some others had informed him and other people of the village about the incident but in the FIR he had not divulged as to when he was informed about the incident. In his examination-in-chief before the trial court the complainant had stated that he was informed by Mafia Bibi (PW2), Asma Bibi (PW3) and Yasmin Bibi on 14.06.2009 and on that occasion Muhammad Afzal (PW4) and Muhammad Mukhtar Ahmad were also present with him whose presence with him had not been mentioned by him in the FIR. In his cross-examination the complainant had changed his stance and had stated that he was informed about the occurrence on Criminal Appeal No.39-L of 2015 -: 43 :- 16.06.2009 (not on 14.06.2009 as stated by him in his examination-in- chief). 12. According to the prosecution the next person informed about the alleged incident was Muhammad Afzal (PW4) but where was he contacted for the purpose was also in doubt. Qari Muhammad Salaam complainant (PW1) had stated before the trial court that on 14.06.2009 Mafia Bibi (PW2), Asma Bibi (PW3) and Yasmin Bibi came to him and informed him about the incident and on that occasion Muhammad Afzal (PW4) and Muhammad Mukhtar Ahmad were also present with him. However, Muhammad Afzal (PW4) had maintained before the trial court that on 14.06.2009 Qari Muhammad Salaam complainant (PW1), Mafia Bibi (PW2), Asma Bibi (PW3), Yasmin Bibi and Muhammad Mukhtar Ahmad came to his house and narrated the occurrence to him. 13. According to the record of the case some steps had been taken by the complainant party before reporting the matter to the police but the ambivalence surrounding taking of such steps was quite noticeable. The alleged occurrence had taken place on 14.06.2009 and the matter was reported to the police on 19.06.2009, i.e. after five days. Qari Muhammad Salaam complainant (PW1) had initially stated before the trial court that he had been informed about the incident on 14.06.2009 but during the same testimony he had also stated that he had been apprised of the occurrence on 16.06.2009. He had stated before the trial court that between 16.06.2009 and 19.06.2009 he and the people of the village had “investigated and consulted and peeped into the matter” and the matter was reported to the police when they had felt satisfied about correctness of the allegations leveled against the appellant. Muhammad Idrees (CW1) had also stated that Qari Muhammad Salaam complainant (PW1) had verified the facts from him. It has pertinently been noticed by us that no detail of any such investigation, consultation or peeping into the matter by the complainant party or of verification by the complainant had been divulged before the trial court nor any evidence had been produced in that regard. 14. The next development allegedly taking place in this case was a public gathering convened and held on 19.06.2009 wherein the appellant was summoned and she had statedly made a confession and had sought Criminal Appeal No.39-L of 2015 -: 44 :- pardon. I have found that the evidence produced by the prosecution in respect of the said public gathering and about what transpired therein was not only an afterthought but was nothing short of concoction incarnate. The said public gathering was allegedly held at about Noon on 19.06.2009 and an FIR in respect of the alleged commission of blasphemy by the appellant had been lodged by Qari Muhammad Salaam complainant (PW1) with the local police at 05.45 P.M. on the same day, i.e. 19.06.2009 but it is quite intriguing to note that in the FIR so lodged no mention whatsoever had been made to any public gathering convened or held earlier on the same day or to summoning of the appellant in any such public gathering, making of a confession by her and seeking pardon by her therein! All that was mentioned in the FIR was that on 19.06.2009 Qari Muhammad Salaam complainant (PW1), Muhammad Afzal (PW4) and Mukhtar Ahmad had summoned Asma Bibi (PW3), etc. and when the appellant was asked about the incident taking place on 14.06.2009 she confessed and sought pardon. After lodging and registration of the FIR the initial investigating officer namely Muhammad Arshad, SI (PW7) had recorded the statements of Mafia Bibi (PW2), Asma Bibi (PW3) and Muhammad Afzal (PW4) under section 161, Cr.P.C. (Exhibits-DA, DB and DC respectively) on that very day and in those statements the said witnesses had also failed to mention anything about any public gathering convened and held on the same day, summoning of the appellant in such gathering, making of a confession by the appellant or seeking pardon by her therein! 15. The witnesses produced by the prosecution before the trial court in order to prove the convening and holding of the so-called public gathering on 19.06.2009 and summoning of the appellant to that gathering, making of a confession by her and seeking pardon by her therein were Qari Muhammad Salaam complainant (PW1) and Muhammad Afzal (PW4). The statements made by the said witnesses have, however, been found by me to be mutually contradictory besides having been contradicted by the remaining record of the case. Qari Muhammad Salaam complainant (PW1) had stated that a public gathering was called in the village on 19.06.2009 but he had failed to mention the time or specific place of its holding. He claimed that in that gathering the appellant had confessed her guilt before him. He had conceded that convening and holding of any public gathering on Criminal Appeal No.39-L of 2015 -: 45 :- 19.06.2009 had not been mentioned by him in the FIR (Exhibit-PA) lodged by him later on the same day. He had maintained that in the public gathering the appellant had narrated the occurrence to him and then Mafia Bibi (PW2) and Yasmin Bibi had narrated the occurrence but in her statement made before the trial court Mafia Bibi (PW2) had not said anything about her presence in the public gathering and Yasmin Bibi was not produced by the prosecution before the trial and she had been given up as unnecessary. Although Mafia Bibi (PW2) had stated about a public gathering in her statement made before the trial court yet she had never claimed to be present in any such gathering and, thus, her statement in that regard was nothing but hearsay. She had stated that the public gathering was held after four days of the alleged occurrence which meant that either the public gathering was held on 18.06.2009 and not on 19.06.2009 or the alleged occurrence had taken place on 15.06.2009 and not on 14.06.2009. I have already mentioned above that in her statement made before the police under section 161, Cr.P.C. Mafia Bibi (PW2) had said nothing about any public gathering at all and she was duly confronted with that earlier statement. In her statement made before the trial court Asma Bibi (PW3) had stated about holding of a public gathering but she had failed to mention any date, time or place of holding of such gathering. In her examination-in-chief she had never claimed to be present in the public gathering but in her cross- examination she had stated that she and others had gone to attend the public gathering on their own. It has already been mentioned by me above that in her statement made before the police under section 161, Cr.P.C. Asma Bibi (PW3) had also said nothing about any public gathering at all and she was duly confronted with that earlier statement. Muhammad Afzal (PW4) had stated before the trial court about his presence in the public gathering and about summoning of the appellant to that gathering, making of confession by her in that gathering and her seeking pardon but he was confronted with his earlier statement made before the police under section 161, Cr.P.C. wherein he had said nothing at all about any such public gathering, summoning of the appellant to that gathering, making of confession by the appellant in that gathering and her seeking pardon. Muhammad Idrees (CW1) had also stated before the trial court about the public gathering convened and held on 19.06.2009 and also about what transpired therein but he had admitted in black and white that he was not present in that gathering and he was Criminal Appeal No.39-L of 2015 -: 46 :- told about the same by some other persons. His statement about the public gathering and whatever transpired therein was, thus, hit by the rule against hearsay evidence. It may, however, be pointed out that the said witness had maintained that the public gathering was held after two or three days of the alleged occurrence and not after five days as asserted by some other witnesses. 16. Apart from what has been discussed above the evidence produced by the prosecution about where the public gathering had been held, how many people had participated in that gathering, who had brought the appellant to the gathering, how the appellant was brought to the gathering and the time consumed in the meeting has been found by me to be replete with glaring contradictions exposing complete falsity of the said part of the prosecution’s story. As regards the place of holding the public gathering Qari Muhammad Salaam complainant (PW1) had stated that the public gathering was held in the house of Muhammad Mukhtar Ahmad who was not produced by the prosecution and was given up as unnecessary. He had also stated that the total area of the house of the said Muhammad Mukhtar Ahmad was 5 Marlas. Mafia Bibi (PW2) had stated that the public gathering was held in the house of her father namely Abdul Sattar wherein she and her sister namely Asma Bibi (PW3) also resided. Asma Bibi (PW3) had stated in one breath that the public gathering was held in her house but in the other breath she had stated that the public gathering was held in the house of her neighbour namely Rana Razzaq. Muhammad Afzal (PW4) had maintained that the public gathering was held in the house of Muhammad Mukhtar Ahmad who had not been produced by the prosecution and had been given up as unnecessary. According to Muhammad Idrees (CW1) the public gathering was held at the Dera of Haji Ali Ahmad and not at any other place. The number of persons who had participated in the said public gathering was stated by Qari Muhammad Salaam complainant (PW1) to be about 100, Mafia Bibi (PW2) had given that figure as more than 1000 including many Ulema and Imams of mosques, according to Asma Bibi (PW3) the number of participants was about 2000 including people of nearby villages and according to Muhammad Afzal (PW4) more than 200/250 people were present in that gathering. Muhammad Idrees (CW1) had stated that many religious scholars were also present in the gathering but he did not know the names of the religious scholars who had Criminal Appeal No.39-L of 2015 -: 47 :- participated. If, as stated by Qari Muhammad Salaam complainant (PW1), the total area of the house wherein the public gathering had been held was only 5 Marlas then hundreds or thousands of people could not conceivably fit into that very small house. The evidence produced by the prosecution regarding bringing the appellant to the public gathering was equally discrepant and utterly unreliable. According to Qari Muhammad Salaam complainant (PW1) some residents of the village including one Mudassir had gone on two motorcycles to the house of the appellant and had brought her with them to the public gathering. The said Mudassir was not produced by the prosecution as a witness. Asma Bibi (PW3) had stated that the house of the appellant was situated only three houses away from the place where the public gathering was held and that the appellant was brought there on foot and she also went back on foot. Muhammad Afzal (PW4) had stated that the house of the appellant was situated 200/250 yards away from the house wherein the public gathering had been held and it was one Mushtaq Ahmad who had brought the appellant to the gathering. Later on during the same statement the said witness had maintained that Mushtaq Ahmad had brought the appellant from the field of Falsa. Muhammad Idrees (CW1) had stated that the appellant’s house was situated in front of the Dera whereat the public gathering was held. According to Mafia Bibi (PW2) and Asma Bibi (PW3) the public gathering lasted for about 15/20 minutes but Muhammad Afzal (PW4) had deposed that the gathering had continued for two to two and a half hours. There was a general consensus among the prosecution witnesses that the public gathering was held on a Friday and it had commenced its proceedings around Noon time. If the proceedings had continued for two to two and a half hours then the participants of the gathering, including some religious scholars and Imams of mosques, might have missed their Friday prayers which was not expected of them! 17. According to the prosecution after the public gathering was over Qari Muhammad Salaam complainant (PW1) had lodged an FIR with the local police on the same day, i.e. 19.06.2009. The circumstances in which the complainant had lodged the FIR were also not free from serious doubts. The original FIR (Exhibit-PA) was in the shape of a written application which had statedly been drafted by an Advocate. The record of this case is completely silent about availability of an Advocate Criminal Appeal No.39-L of 2015 -: 48 :- in the village of the parties and nobody had stated anything about the complainant going to any city so as to contact an Advocate and to get an FIR drafted by him. As a matter of fact the complainant had stated before the trial court that he did not even remember the name of the Advocate who had drafted the FIR. The application Exhibit-PA showed that the same was presented by the complainant before Mehdi Hassan, ASI at Pull Nehar Chandarkot (bridge over Chandarkot canal) at 05.45 P.M. on 19.06.2009 when the complainant had met that police officer there while on his way to the Police Station. Qari Muhammad Salaam complainant (PW1) had, however, stated before the trial court that the application Exhibit-PA was delivered to the Station House Officer of the concerned Police Station which was factually incorrect and was belied by the document Exhibit-PA itself. Muhammad Rizwan, SI (PW5) had stated in black and white that on 19.06.2009 the complainant had presented the complaint Exhibit-PA before him at the Police Station and he had then chalked out the formal FIR (Exhibit-PA/1). Even Question No. 6 put to the appellant at the time of recording of her statement under section 342, Cr.P.C. was about the complainant presenting the application Exhibit-PA at the Police Station which was against the record. It was suggested to the complainant by the defence during his cross- examination that the application Exhibit-PA was presented by him before Mehdi Hassan, ASI at Pull Nehar Chandarkot and not at the Police Station but the complainant had categorically denied that suggestion and had maintained that it was incorrect to suggest that the application Exhibit-PA was not presented by him at the Police Station. The complainant had lied in that regard because it had been recorded by Mehdi Hassan, ASI at the bottom of the application Exhibit-PA that the said application had been presented by the complainant before him at 05.45 P.M. on 19.06.2009 at Pull Nehar Chandarkot. This lie told by the complainant could have further been exposed by Mehdi Hassan, ASI but for some undisclosed reason the said police officer was not produced by the prosecution before the trial court. It is quite strange and out of the ordinary that Qari Muhammad Salaam complainant (PW1), the initiator of this criminal case, did not remember who had drafted the application Exhibit-PA for the purpose of lodging the FIR and he did not even know where and before whom the said application had been presented by him for the purpose of getting an FIR registered. It, thus, appears that something else was happening behind the scene and the actual movers Criminal Appeal No.39-L of 2015 -: 49 :- of the present criminal case were some others who had never come to the fore. Apart from that the FIR had been lodged in this case by Qari Muhammad Salaam complainant (PW1) who was not present in the incident allegedly taking place in the field of Falsa on 14.06.2009 and who had not himself heard any derogatory remark attributed to the appellant. The FIR lodged by him had not even disclosed as to which female co-worker was being addressed by the appellant when she had allegedly uttered the offending words on the relevant occasion. An FIR lodged with a noticeable delay and after consultations and deliberations loses its credibility and in the present case the FIR had been lodged with an unexplained delay of five days and the complainant had admitted before the trial court that the FIR had been lodged after he and the people of the village had “investigated”, “consulted” and “peeped into the matter”. The complainant and the FIR lodged by him, thus, were not worthy of much credit. 18. The investigation conducted in this case by the police after registration of the FIR had also left much to be desired. Qari Muhammad Salaam complainant (PW1) had admitted before the trial court that no permission was obtained from the District Coordination Officer or the District Police Officer, etc. for lodging or registration of an FIR in respect of the offence of blasphemy. The initial investigation of this case was conducted by a Sub-Inspector of Police, i.e. Muhammad Arshad, SI (PW7) which was a violation of section 156-A, Cr.P.C. according to which investigation of such a case could be conducted by an officer not below the rank of Superintendent of Police. After lodging of the FIR it was Muhammad Arshad, SI (PW7) who was entrusted the investigation of the case and it was he who had gone to the place of occurrence, had recorded statements of the witnesses under section 161, Cr.P.C. and had arrested the appellant on the same day, i.e. 19.06.2009. Muhammad Amin Bukhari, SP (Investigation) had appeared before the trial court as PW6 and had claimed to have conducted the subsequent investigation of this case after the Deputy Inspector-General of Police/Regional Police Officer, Range Sheikhupura had entrusted the investigation of the case to him on 24.06.2009. That statement of PW6 was factually incorrect because the relevant letter of the Deputy Inspector- General of Police/Regional Police Officer, Range Sheikhupura was dated 26.06.2009 as was evident from the statement of PW6 himself. The said officer had never visited the place of occurrence and had not recorded the statements of witnesses himself. Even the circumstances in which the appellant had been arrested in connection with this case were quite doubtful. Muhammad Arshad, SI (PW7) had stated before the trial court that the appellant had been arrested Criminal Appeal No.39-L of 2015 -: 50 :- by him on 19.06.2009 from the appellant’s house. Muhammad Idrees (CW1), however, had a different story to tell in that regard and according to him the religious scholars present in the public gathering had handed over the appellant to the police and the appellant had been arrested at the Dera of Haji Ali Ahmad where the public gathering was held. 19. The argument of the learned counsel for the complainant that some factual assertions made by the prosecution witnesses were deemed to have been admitted by the defence because the prosecution witnesses were not cross-examined regarding those assertions and no suggestion was put to them regarding incorrectness of such assertions has been found by me to be misconceived. In the case of Nadeem Ramzan v The State (2018 SCMR 149) this Court had clarified while referring to the earlier cases of S. Mahmood Alam Shah v The State (PLD 1987 SC 250) and State v Rab Nawaz and another (PLD 1974 SC 87) that “the principle that a fact would be deemed to be proved if the witness stating such fact had not been cross-examined regarding the same was a principle applicable to civil cases and not to criminal cases. It was held that a criminal case is to be decided on the basis of totality of impressions gathered from the circumstances of the case and not on the narrow ground of cross- examination or otherwise of a witness on a particular fact stated by him.” 20. The glaring and stark contradictions in the evidence produced by the prosecution in respect of every factual aspect of this case, noticed by me above, lead to an irresistible and unfortunate impression that all those concerned in the case with providing evidence and conducting investigation had taken upon themselves not to speak the truth or at least not to divulge the whole truth. It is equally disturbing to note that the courts below had also, conveniently or otherwise, failed to advert to such contradictions and some downright falsehood. All concerned would have certainly done better if they had paid heed to what Almighty Allah has ordained in the Holy Qur’an: “O you who have believed, be persistently standing firm for Allah, witnesses in justice, and do not let the hatred of a people prevent you from being just. Be just, that is nearer to righteousness. And fear Allah; indeed, Allah is acquainted with what you do.” (Surah Al-Ma’idah: verse 8) “So follow not [personal] inclination, lest you not be just. And if you distort [your testimony] or refuse [to give it], then indeed Allah is ever, with what you do, acquainted.” (Surah An-Nisa: verse 135) Criminal Appeal No.39-L of 2015 -: 51 :- 21. There are indications available on the record that something had transpired between the appellant, a Christian by faith, and her Muslim co- workers in the field of Falsa on the fateful day and it was in the background of that something that the present allegation regarding commission of blasphemy had belatedly been leveled against the appellant after deliberations spanning over five long days. It is unfortunate that all the four private witnesses produced by the complainant party, i.e. Qari Muhammad Salaam complainant (PW1), Mafia Bibi (PW2), Asma Bibi (PW3) and Muhammad Afzal (PW4) had remained completely silent about that something and it were the Court Witness namely Muhammad Idrees (CW1) and the senior investigating officer namely Muhammad Amin Bukhari, SP (Investigation) (PW6) who had spilled the beans in that regard and had shown that the boot might in fact be on the other leg! According to the statement made by Muhammad Idrees (CW1) before the trial court he had come to know that before the offending words were allegedly uttered by the appellant a quarrel had taken place between the appellant and the other female co-workers over an issue of fetching water to drink. Elaborating the said quarrel the said witness, owner of the relevant field of Falsa, had disclosed that while working together in that field on the relevant occasion the worker ladies wanted to drink water and the appellant was requested to fetch water but Mafia Bibi (PW2) and Asma Bibi (PW3) said that they would not drink water from the hands of the appellant because she was a Christian. Muhammad Amin Bukhari, SP (Investigation) (PW6) had stated before the trial court that it came to his knowledge during the investigation that during a religious discussion between the ladies working together in the field of Falsa on the fateful day a Muslim lady asked for water but when the appellant offered her water the Muslim lady refused to have/drink it from the hand of a Christian lady. He had also confirmed that in his statement recorded under section 161, Cr.P.C. Muhammad Idrees (CW1) had stated that a quarrel had taken place between the appellant and the ladies appearing as prosecution witnesses on the issue of drinking water. The record shows, and it is sad to note, that when taking place of such a quarrel between the appellant and Asma Bibi (PW3) on the issue of drinking water was suggested to the latter by the defence during her cross-examination she had denied that suggestion. The denial of that suggestion by Asma Bibi (PW3) has, however, failed to surprise me because in the FIR, in their statements recorded by the police under section 161, Cr.P.C. as well as in their statements made before the trial court all the private witnesses belonging to the complainant party, i.e. Qari Muhammad Salaam complainant (PW1), Mafia Bibi (PW2), Asma Bibi (PW3) and Muhammad Afzal (PW4) had maintained complete silence over this factual aspect of the case and this fact had come to light only through the statements of a Court Witness and an investigating officer who were both independent witnesses. Criminal Appeal No.39-L of 2015 -: 52 :- 22. The above mentioned suppression of a critical fact by the members of the complainant party in fact holds the key to a just, fair and correct decision of the present case. The record of the case shows that the appellant and her forefathers had been living in the same village since before the creation of Pakistan in the year 1947 and during all this while no such incident or quarrel over religions of the parties had ever taken place. It may be advantageous to read again what the appellant had stated in her statement recorded under section 342, Cr.P.C.: “I am married woman having two daughters. My husband is a poor labourer. I used to pluck Falsa from the plants of Muhammad Idrees along with number of ladies on the daily wages basis. On the alleged day of occurrence, I along with number of ladies were working in the fields. Both the ladies Mst. Mafia Bibi and Mst. Asma Bibi PWs quarreled with me over fetching water which was offered by me to bring for them but they refused saying that since I am Christian, so, they never took water from the hand of Christian. Over this, quarrel was insued and some hot words were exchanged between myself and the PWs ladies. The PWs then approached Qari Salaam complainant through his wife who remained teaching the both ladies, hence, the PWs were conspiring with Qari Salaam got a false, fabricated and fictitious case against me. I offered my oath to police on Bible that I had never passed such derogatory and shameful remarks against the Holy Prophet (PBUH) and the Holy Quran. I have great respect and honour to the Holy Prophet (PBUH) as well Holy Quran and since police had conspired with the complainant, so, the police has falsely booked me in this case. The PWs are real sisters and interested to falsely involve me in this case as they felt disgrace and dishonor on the basis of altercation and hard words extended to them. Qari Salaam complainant is also interested person and both the ladies remained teaching Holy Quran from his wife. My forefathers are living in this village since creation of Pakistan. I am also about 40 years old and since the alleged occurrence, no complaint likewise this never exist against me. I am uneducated and no priest of Christian. So much so there is no church of the Christian in the village, so, being ignorant of any Islamic thought, how can I use such clumsy and derogatory remarks against the beloved Prophet (PBUH) of Allah and the Divine book viz Holy Quran. PW Idrees is also a interested witness who has close family links with their above said ladies.” In the backdrop of that statement of the appellant, suppression of the fact by the complainant party about the quarrel over drinking water and confirmation about such quarrel by the Court Witness and the senior investigating officer there are two possibilities which appeal to reason: firstly, the appellant had uttered the offending words after her own religion or religious sensibilities had been insulted and injured by the Muslim co-workers at the spot or, secondly, due to the quarrel taking place between the appellant and her Muslim co-workers at the spot without any offending word having been uttered by the appellant the quarrel was reported by the Muslim ladies to others who then, after deliberating over the matter for five long days, had decided to go after the Criminal Appeal No.39-L of 2015 -: 53 :- appellant with a false allegation regarding commission of blasphemy. Both these possibilities require some examination. 23. The statements made by Muhammad Idrees (CW1) and Muhammad Amin Bukhari, SP (Investigation) (PW6) before the trial court revealed that the alleged blasphemy had been committed by the Christian appellant after her Muslim co-workers had insulted the appellant’s religion and had injured her religious sensibilities only because she believed in and was a follower of Jesus Christ. According to the Holy Qur’an a Muslim’s faith is not complete till he believes in all the Holy Prophets and Messengers of Almighty Allah including Jesus Christ (Isa son of Maryam) (Peace Be Upon Him) and all the revealed Holy Books of Almighty Allah including the Holy Bible. From that perspective insulting the appellant’s religion by her Muslim co-workers was no less blasphemous. Almighty Allah, the Creator of mankind, knew how a human being whose religion and religious sensibilities are insulted is likely to snap and retort and that is why it was ordained in the Holy Qur’an that “And do not insult those they invoke other than Allah, lest they insult Allah in enmity without knowledge. Thus We have made pleasing to every community their deeds. Then to their Lord is their return, and He will inform them about what they used to do.” (Surah Al-An’am: verse 108) The Muslim co-workers of the appellant had violated the command of Almighty Allah by insulting the Deity believed in and the religion followed by the appellant and, even if the prosecution’s allegations against the appellant were to be accepted as correct, the stated reaction to the same by the appellant was not different from that warned about by Almighty Allah. 24. In view of the glaring contradictions in the evidence produced by the prosecution it has appeared to me to be equally plausible that due to the quarrel taking place between the appellant and her Muslim co- workers at the spot without any offending word having been uttered by the appellant the quarrel was reported by the Muslim ladies to others who then, after deliberating over the matter for five long days, had decided to go after the appellant with a false allegation regarding commission of blasphemy. If that were so then the Muslim witnesses in Criminal Appeal No.39-L of 2015 -: 54 :- this case had violated a covenant of the Holy Prophet Muhammad (Peace Be Upon Him) with those professing the Christian faith. In his book The Covenants of the Prophet Muhammad with the Christians of the World (published by Angelico Press on 01.09.2013) John A. Morrow has referred to and reproduced many covenants entered into by the Holy Prophet Muhammad (Peace Be Upon Him) with people of the Christian faith and one of such covenants is called the Covenant of the Prophet Muhammad (Peace Be Upon Him) with the Monks of Mount Sinai. It is reported that in or around the year 628 A.D. a delegation from St. Catherine’s Monastery, the world’s oldest monastery located at the foot of Mount Sinai in Egypt, came to the Holy Prophet Muhammad (Peace Be Upon Him), requested for his protection and he responded by granting them a charter of rights. That charter, also known as The Promise to St. Catherine, was translated from Arabic to English language by Dr. A. Zahoor and Dr. Z. Haq as follows: "This is a message from Muhammad ibn Abdullah, as a covenant to those who adopt Christianity, near and far, we are with them. Verily I, the servants, the helpers, and my followers defend them, because Christians are my citizens; and by God! I hold out against anything that displeases them. No compulsion is to be on them. Neither are their judges to be removed from their jobs nor their monks from their monasteries. No one is to destroy a house of their religion, to damage it, or to carry anything from it to the Muslims' houses. Should anyone take any of these, he would spoil God's covenant and disobey His Prophet. Verily, they are my allies and have my secure charter against all that they hate. No one is to force them to travel or to oblige them to fight. The Muslims are to fight for them. If a female Christian is married to a Muslim, it is not to take place without her approval. She is not to be prevented from visiting her church to pray. Their churches are to be respected. They are neither to be prevented from repairing them nor the sacredness of their covenants. No one of the nation (Muslims) is to disobey the covenant till the Last Day (end of the world)." The promise made was eternal and universal and was not limited to St. Catherine alone. The rights conferred by the charter are inalienable and the Holy Prophet Muhammad (Peace Be Upon Him) had declared that Christians, all of them, were his allies and he equated ill treatment of Christians with violating God’s covenant. It is noticeable that the charter imposed no conditions on Christians for enjoying its privileges and it was enough that they were Christians. They were not required to alter their beliefs, they did not have to make any payments and they did not have any obligations. The charter was of rights without any duties and it Criminal Appeal No.39-L of 2015 -: 55 :- clearly protected the right to property, freedom of religion, freedom of work, and security of person. 25. It is unfortunate that while utilizing the sacred concept of Namoos- e-Risalat (honour and dignity of Prophethood) the above mentioned promise made by the Holy Prophet Muhammad (Peace Be Upon Him) to those professing the Christian faith had not been adhered to by his followers in the present case. It appears that after an altercation taking place in the field of Falsa a feast of falsehood had followed and the Muslim members of the complainant party led by Qari Muhammad Salaam complainant had paid little heed to the following command of Almighty Allah in the Holy Qur’an: “O! ye who believe! Stand out firmly for justice, as witnesses to Allah, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor, for Allah can best protect both. Follow not the lusts (of your hearts), lest ye swerve, and if ye distort (justice) or decline to do justice, verily Allah is well-acquainted with all that ye do.” (Surah Al-Nisa: verse 135) Even if there was some grain of truth in the allegations levelled in this case against the appellant still the glaring contradictions in the evidence of the prosecution highlighted above clearly show that the truth in this case had been mixed with a lot which was untrue. Even in this regard the Muslim witnesses belonging to the complainant party had ignored what had been ordained by Almighty Allah in the following verse of the Holy Qur’an: “And do not mix the truth with falsehood or conceal the truth while you know [it].” (Surah Al-Baqarah: verse 42) Blasphemy is a serious offence but the insult of the appellant’s religion and religious sensibilities by the complainant party and then mixing truth with falsehood in the name of the Holy Prophet Muhammad (Peace Be Upon Him) was also not short of being blasphemous. It is ironical that in the Arabic language the appellant’s name Asia means ‘sinful’ but in the circumstances of the present case she appears to be a person, in the words of Shakespeare’s King Leare, “more sinned against than sinning”. 26. For what has been discussed above a conclusion is inescapable and irresistible that the prosecution had failed to prove its case against Criminal Appeal No.39-L of 2015 -: 56 :- the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded and upheld by the courts below are set aside and she is acquitted of the charge by extending the benefit of doubt to her. She shall be released from the jail forthwith if not required to be detained in connection with any other case. (Asif Saeed Khan Khosa) Judge

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALl AKBAR NAQVI CRIMINAL APPEAL NO. 398 OF 2020 Against the judgment dated 01.02.2018 passed by the Lahore High Court, Rawalpindi Bench In Criminal Appeal No. 281/2015, Criminal Revision No, 130/2015 & Murder Reference No. 36/2015) Sajid Mehmood Appellant(s) VERSUS The State Respondent(s) For the Appellant(s): Mr. Muhammad Ahsan Bhoon, ASC Syed All lmran, ASC Syed Rifaqat Hussain Shah, AOR For the State: Mr. Ahmed Raza Gillani, Addl.P.G. Date of Hearing: 31.05.2022 JUDGMENT SAYVED MAZAHAR ALl AKBAR NAQVI I J.- Appellant Sajid Mehmood along with three co-accused was tried by the learned Sessions Judge, Jhelum in terms of the case registered vide FIR No. 13 dated 16.01.2014 under Sections 302/34 PPC at Police Station Civil Line, District Jhelum, for committing murder of Azeem Ahmed, brother of the complainant. The learned Trial Court vide its judgment dated 23.06.2015 while acquitting the co-accused, convicted appellant Sajid Mehmood under Section 302(b) PPC and sentenced him to death. He was also directed to pay compensation amounting to Rs.500,000/- to the legal heirs of the deceased. In case of non-payment of the compensation, the same was ordered to be recovered as arrears of land revenue and the appellant was CRJMINALAPPEAL NO.398 OF 2020 -: 2 to suffer SI for six months. In appeal the learned High Court while maintaining the conviction of the appellant under Section 302(b) PPC, altered the sentence of death into imprisonment for life. The amount of compensation and the mode of recovery thereof was maintained. Benefit of Section 382-B Cr.P.C. was also extended to the appellant. Being aggrieved by the impugned judgment, the appellant filed Jail Petition No. 160/2018 wherein leave was granted by this Court on 02.06.2020 and the present appeal has arisen out of the same. 2. The prosecution story as given in the impugned judgment reads as under:- "2. The brief facts of the case as unfolded in the FIR, recorded on the statement of Jameel Hussain, complainant (PW-10) are that on 16.012014, he (complainant) alongwith his father Karamat Hussain, PW and his brother Zameer Ahmad was present outside the gate of his house for participating in Milad Sharif in the mosque, when at about 8.30 p.m. Azeem Ahmed, deceased (brother of complainant) came there on his white coloured cultus car bearing registration No. LW/9991 from city side. Azeern Ahrnad (deceased) parked his car in front of his house and as soon as he alighted from his car, accused persons namely Sajid Mehmood alias Saja, Aurangzeb alias Ranga, Abdul Samad all armed with the pistol 30 bore respectively also arrived thereon white colour car being driven by Shahid alias Sando, the accused Aurangzeb alias Rangha raised a lalkara and consequently Sajid Mehrnood alias Saja made a straight fire shot of his pistol targeting left thigh of Azeem Ahmad. On receipt of this pistol's fire Azeem Ahmad fell down on the ground and succumbed to his injuries on the spot and accused persons on their car vanished from the place of occurrence. The occurrence was witnessed by complainant, Zameer Hussain (PW-1) and Karamat Hussain (since given up). The motive behind the occurrence was that on the previous night of the occurrence, the accused persons had got set on fire the Haveli of the complainant party and falsely involved Junaid and others in the occurrence; the respectable of the locality had patched up that matter between the complainant party and Junaid and others; due to this grudge, the accused committed the murder of complainant's brother. Hence, the crime report." 3. After completion of the investigation, report under Section 173 Cr,P.C. was submitted before the Trial Court. The prosecution in order to prove its case produced 13 witnesses. In his statement recorded under Section 342 Cr.P.0 the appellant pleaded his innocence and refuted all the I CRIMINAL APPEAL NO.398 OF 2020 -: 3 allegations leveled against him. However, he did not make his statement on oath under Section 340(2) Cr.P.0 in disproof of allegations leveled against him. He also did not produce any evidence in his defence. 4. Learned counsel for the appellant contended that it was an un-witnessed occurrence and the whole prosecution case is concocted one. Contends that even there are glaring contradictions and dishonest improvements in the statements of the eye-witnesses, which have escaped the notice of the learned courts below. Contends that the complainant was brother of the deceased, therefore, his testimony cannot be believed to sustain the conviction of the appellant. Contends that there is conflict between medical and ocular account. Contends that the postmortem examination was conducted after two hours of the occurrence and in such a short span of time, the rigor mortis could not develop as such contradicted time of occurrence. Contends that according to prosecution witnesses, the dead body of the deceased was brought to the hospital in car whereas according to Dr. Saeed Anwar (PW-7), the dead body was brought by Rescue 1122, which speaks volumes on the conduct of the prosecution witnesses. Contends that although Zameer Hussain (PW-11) was mentioned as witness in the FIR but the Police did not record his statement under Section 161 Cr.P.C., therefore, the said witness could not be examined to corroborate the solitary evidence of other eye-witness i.e. the complainant. S. On the other hand, learned Law Officer has defended the impugned judgment by contending that the judgment of the learned High Court is well reasoned, based on correct principles of law and has examined the evidence in its true perspective, therefore, the same does not call for any interference by this Court. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. The ocular account in this case has been furnished by Ch. Jameel Hussain, complainant (PW-10) and Zameer Hussain (PW-11). These CRIMINAL APPEAL NO3980F2020 -: 4 prosecution witnesses were subjected to lengthy cross-examination by the defence but nothing favourable to the appellant or adverse to the prosecution could be produced on record. Both these PWs remained consistent on each and every material point inasmuch as they made deposition exactly according to the circumstances happened in this case, therefore, it can safely be concluded that the ocular account furnished by the prosecution is reliable, straightforward and confidence inspiring. The medical evidence available on the record corroborates the ocular account so far as the nature, time and impact of the injury on the person of the deceased is concerned. So far as the argument of learned counsel for the appellant that the medical evidence contradicts the ocular version is concerned, we may observe that where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence. It is settled that casual discrepancies and conflicts appearing in medical evidence and the ocular version are quite possible for variety of reasons. During turmoil when live shots are being fired, witnesses in a momentary glance make only tentative assessment of points where such fire shots appeared to have landed and it becomes highly improbable to mention their location with exactitude As far as the question that the complainant was brother of the deceased, therefore ) his testimony cannot be believed to sustain conviction of the appellant is concerned, it is by now a well established principle of law that mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses unless previous enmity or ill will is established on the record to falsely implicate the accused in the case. Both these PWs were inmates of the house, in front of which occurrence took place, therefore, their presence was natural and the same is fully established from the record. Learned counsel for the appellant could not point out any reason as to why the complainant has falsely involved the appellant in the present case and let off the real culprit, who has committed murder of his real brother. Substitution in such like cases is a rare phenomenon. The complainant would not prefer to spare the real culprit who murdered his brother and falsely involve the appellant without any rhyme and reason. During the course of proceedings, the learned CRIMINAL APPEAL NO.3980F2020 -: 5 counsel contended that there are material discrepancies and contradictions in the statements of the eye-witnesses but on our specific query he could not point out any major contradiction, which could shatter the case of the prosecution. While appreciating the evidence, the court must not attach undue importance to minor discrepancies and such minor discrepancies which do not shake the salient features of the prosecution case should be ignored. The accused cannot claim premium of such minor discrepancies. If importance be given to such insignificant inconsistencies then there would hardly be any conviction. 7. It was one of the arguments of learned counsel for the appellant that although Zameer Hussain (PW-11) was mentioned as witness in the FIR but his statement under Section 161 Cr.P.C. was not recorded, therefore, his testimony cannot be relied upon to sustain conviction of the appellant. However, we do not tend to agree with the learned counsel. To arrive at a just conclusion, the courts can call any person likely to be acquainted with the facts of the case after ascertaining it from the Public Prosecutor or the complainant, subject to general provisions that summoning of any such witness does not cause delay or defeat the ends of justice. Section 265-F(2) of the Code of Criminal Procedure empowers the Courts to summon a person, after having been ascertained from the Public Prosecutor or the complainant, who is likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution. Section 265(7) grants even to the accused a right to apply for summoning any witness and production of documents. The very purpose of Section 265-F is to ensure the concept of a fair trial and to achieve this purpose equal opportunity has been given to both the accused and the prosecution for summoning the evidence. There is nowhere mentioned in this Section that only those witnesses could be examined whose statements under Section 161 CrP.C. have been recorded. Under this provision of law i.e. Section 265-F the Trial Court is not bound to record the statements of only those witnesses who have been listed in the calendar of witnesses. On the other hand, Section 540 r.P.C. empowers the Trial Court to summon a material witness even if his CRIMINAL APPEAL NQ.3930F2020 -. 6 name did not appear in the column of witnesses provided his evidence is deemed essential for the just and proper decision of the case. In the present case, although the statement of Zameer Hussain (PW-11) under Section 161 Cr.P.C. could not be recorded by the Police yet the fact remains that he was named as an eyewitness in the very FIR and was fully acquainted with the facts and circumstances of the case. It would be advantageous to reproduce Section 540, Cr.P.C., which is as follows:- "540. Power to summon material witness, or examine persons present. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re- examine any such person if his evidence appears to it to be essential to the just decision of the case". 3. This section is divisible in two parts. In the first part, discretion is given to the Court and enables it at any stage of an inquiry, trial or other proceedings under the Code, (a) to summon anyone as a witness, or (b) to examine any person present in the Court, or (c) to recall and re-examine any person whose evidence had already been recorded. On the other hand, the second part appears to be mandatory and requires the Court to take any of the steps mentioned above if the new evidence appears to it essential to the just decision of the case. The object of the provision, as a whole, is to do justice not only from the point of view of the accused and the prosecution but also justice from the point of view of the society. The Court examines evidence under this section neither to help the prosecution nor to help the accused. It is done neither to fill up any gaps in the prosecution evidence nor to give it any unfair advantage against the accused. Fundamental thing to be seen is whether the Court considers this evidence necessary in the facts and circumstances of the particular case before it. If this results in only "filling of lacuna" that is purely a subsidiary factor and cannot be taken into consideration. There is no bar that a witness, whose statement under Section 161 Cr.P.C. had not been recorded at the time of investigation, cannot be allowed to examine under Section 540 Cr.P.C. When a witness examined in Court, whose E CRJMINAL APPEAL NO3980F2020 -: 7 statement has not been recorded at the time of investigation under Section 161, Cr.P.C., the evidentiary value to be attached to the evidence of such witness has to be looked into and if it is found that prejudice has been caused to the accused then the evidence of such witness may or may not be acted upon. Therefore, the argument of the learned counsel for the appellant is misconceived. 9. In Abid Ali Vs. The State (2011 SCMR 208), this Court has held that to believe or disbelieve a witness, all depends upon intrinsic value of the statement made by him. There cannot be universal principle that in every case, interested witnesses should be disbelieved or disinterested witnesses be believed. It all depends upon the rule of prudence and reasonableness to hold that a particular witness was present on scene of crime and that he is making true statement. Person who is reported otherwise to be very honest, aboveboard and very respectable in society, if gives a statement which is illogical and unbelievable, no prudent man despite his nobility would accept such statement. As a rule of criminal jurisprudence, prosecution evidence is not tested on the basis of quantity but quality of evidence. It is not that who is giving evidence and making statement. What is relevant is what statement has been given and it is not the person but the statement of that person which is to be seen and adjudged. In Niaz-ud-Din Vs. The State (2011 SCMR 725), it was held that conviction in a murder case can be based on the testimony of a single witness, if court is satisfied that he is reliable and it is the quality of evidence and not the quantity which matters. The same was the view of this Court in Asim Vs. The State (2005 SCMR 417), Lal Khan Vs. The State (2006 SCMR 1846) and Muhammad Sadig Vs. The State (2022 SCMR 690). In this view of the matter, even if the testimony of Zameer Hussain is discarded, the evidence of complainant is sufficient to sustain conviction of the appellant. 10, So far as recovery of crime weapon is concerned, after his arrest on 26.01.2014, the appellant got recovered .30 bore pistol and the same was sent to Forensic Science Laboratory on 04.02.2012. The one crime empty had already been sent to office of Forensic Science CRIMINAL APPEAL NO.398 0F2020 n Laboratory on 27.01.2012. According to the report, the empty was found fired from the pistol got recovered from the appellant. Although, the Police sent the crime empty after ten days of the occurrence to the FSL and the same should have been sent without unnecessary delay after being collected from the spot but this laziness would not render the recovery inconsequential. It was argued by the learned counsel that according to prosecution witnesses, the dead body of the deceased was brought to the hospital in car whereas according to Dr. Saeed Anwar (PW- 7), the dead body was brought by Rescue 1122, However, this could not help the appellant simply for the reason that the document, which shows that the deceased was taken to hospital by Rescue 1122, is inadmissible in evidence as neither the author of the said document nor anyone on his behalf appeared before the Trial Court to verify the same. The said document, which is available at page 196 of the paper book, was also not brought on the judicial record. Even otherwise, the learned Trial Court has very rightly dealt with this issue and observed that during cross- examination, the doctor tried to give concession to the accused persons and stated that the dead body was brought by Rescue 1122 but in his re- examination he admitted that in documents there was no mention that the dead body was brought by Rescue 1122. The learned High Court has disbelieved the motive part of the prosecution story by observing that the complainant is neither the eyewitness of the incident of burning of haveb nor was present in the meeting where compromise was effected. According to him, his brother Shakeel had informed him but the said Shakeel was not examined during the trial in order to prove the motive part of the prosecution story. We find no reason to differ with this finding of the learned High Court. It was argued by the learned counsel that the postmortem examination was conducted after two hours of the occurrence and at that time rigor mortis had fully developed, which according to him, shows that the deceased had died long ago before the given time of incident. The phrase rigor mortis is latin with rigor meaning stiffness and mortis meaning death. Rigor mortis is a temporary condition. Depending on body temperature and other conditions, rigor mortis lasts proximately for 72 hours. The phenomenon is caused by the skeletal 4, 1 CRIMINAL APPEAL NO 398 OF 2020 -: 9 muscles partially contracting. The muscles are unable to relax, so the joints become fixed in place. Factors that affect rigor mortis include (i) temperature/weather, (ii) physical exertion, (iii) age, (iv) body fat, (v) any illness the person had at the time of death, (vi) sun exposure, (vii) gender, (viii) body structure, (ix) genetics, (x) tribe & (xi) inhabitation. Admittedly, the occurrence took place in the night of January and development of rigor mortis in the cold days is not surprising. So far as the quantum of punishment is concerned, the learned High Court while taking into consideration the fact that the motive part of the prosecution story is not proved; there was no blood feud between the parties; what actually preceded just before the occurrence remained shrouded in mystery; appellant only fired single shot and co-accused of the appellant have been acquitted by the learned Trial Court, has rightly taken a lenient view and converted the sentence of death into imprisonment for life. No further leniency can be shown to the appellant. The impugned judgment is well reasoned, proceeds on correct principles of law on the subject and does not call for interference by this Court. 11. For what has been discussed above, we do not find any merit in this appeal, which is dismissed. The above are the detailed reasons of our short order of even date. Islamabad. the 31't of May, 2022 Approved For Reporting I A .1.11 till'

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE AMIR HANI MUSLIM MR. JUSTICE MUSHIR ALAM MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE FAISAL ARAB MR. JUSTICE KHILJI ARIF HUSSAIN CRIMINAL APPEAL NO. 04-K OF 2012 (On appeal against the judgment dated 30.09.2011 passed by the High Court of Sindh, Karachi in Cr. Revision Application No. 07/2011) Shaikh Muhammad Naseem … Appellant VERSUS Mst. Farida Gul … Respondent For the Appellant: Nemo For the Respondent: Mr. Abdullah A. Munshi, ASC Mr. K.A. Wahab, AOR For the State: Mr. Shahdat Awan, P.G. Date of Hearing: 22.07.2016 JUDGMENT FAISAL ARAB, J.- In the present appeal, the appellant, who claims to be a tenant of the respondent, filed Criminal Complaint No.130 of 2010 in the Court of Sessions, Karachi-East under the provisions of Illegal Dispossession Act, 2005 alleging that on 08.01.2010 while he was away, the servants and some hired persons of the respondent entered his rented premises and forcibly took its possession. The said criminal complaint was dismissed as not maintainable by the Additional Sessions Judge vide order dated 13.12.2010 for the reason that a Civil Revision Application No. 77 of 2007 wherein the restoration of possession of the same rented CRIMINAL APPEAL NO. 04-K OF 2012 2 premises has been sought by the Appellant is pending adjudication in the High Court of Sindh. The appellant challenged the order of the Additional Sessions Judge before the High Court in Criminal Revision No.7 of 2011 which was dismissed. While doing so the High Court not only adopted the same reasoning as that of the Additional Sessions Judge but also placed reliance on the judgment delivered by a three member bench of this Court in the case of Bashir Ahmad Vs. Additional Sessions Judge (PLD 2010 SC 661) wherein the scope and applicability of the Illegal Dispossession Act, 2005 was restricted. It was held that only such offenders can be prosecuted who possess the credentials and antecedents of ‘land grabbers’ or ‘Qabza Group’ and no one else. As in the impugned judgement, the High Court has placed reliance on Bashir Ahmad’s case supra, we deem it appropriate to refer to the judgment delivered by a five member bench of this Court recently decided on 18.07.2016 in Civil Petition No.41/2008 alongwith Civil Appeals No. 2054/2007 & 1208/2015 (Gulshan Bibi and others Vs. Muhammad Sadiq and others), which resolved the conflict between two sets of judgments of three member benches of this Court, including Bashir Ahmad’s case supra. The first set comprised of the cases of Muhammad Akram Vs. Muhammad Yousaf (2009 SCMR 1066), Mumtaz Hussain Vs. Dr. Nasir Khan (2010 SCMR 1254) and Shahabuddin Vs. The State (PLD 2010 SC 725). These cases do not impose any restriction as to category of persons who could only be prosecuted under the provisions of Illegal Dispossession Act, 2005. The second set comprised of cases of Bashir Ahmad Vs. Additional Sessions Judge (PLD 2010 SC 661) and Habibullah Vs. Abdul Manan (2012 SCMR 1533) wherein it was held that only those possessing the credentials CRIMINAL APPEAL NO. 04-K OF 2012 3 and antecedents of ‘land grabbers’ or ‘Qabza Group’ can be prosecuted thereby restricting the scope and applicability of the Illegal Dispossession Act, 2005. The five member bench of this Court in Gulshan Bibi’s case supra while examining both the sets of cases came to the conclusion that it was not the intention of the legislature that only a particular category of persons can be prosecuted under the Illegal Dispossession Act, 2005. Thus the second set of cases was declared not to be a good law. For ease of convenience, the reasons that prevailed with the five members bench are briefly explained below:- 2. The substantive provisions of Illegal Dispossession Act, 2005, which describe the offence and the offender are contained in Section 3 of the Act. It reads as follows:- “3. Prevention of illegal possession of property, etc. (1) No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owners or occupier of such property. (2) Whoever contravenes the provisions of the sub-section (1) shall, without prejudice to, any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provision of section 544-A of the Code.” (Underlining is ours to lay emphasis) 3. It is evident from the provisions of Section 3 of the Illegal Dispossession Act, 2005 that it describes the offence exhaustively but does not describe the offenders in specific terms. On the contrary, it uses the general terms 'no one' and 'whoever' for CRIMINAL APPEAL NO. 04-K OF 2012 4 the offenders. The use of such general terms clearly indicates that the widest possible meaning was attributed to the offenders. The three member bench of this Court in Bashir Ahmed's case supra however has held that under the Illegal Dispossession Act, 2005 only those can be prosecuted who possess the credentials and antecedents of ‘land grabbers’ or ‘Qabza Group’ and none else. In reaching such conclusion, Bashir Ahmed's case adopted the reasoning contained in the judgment of the Lahore High Court in the case of Zahoor Ahmed Vs. the State (PLD 2007 Lahore 231). The first reason that prevailed with the Lahore High Court in Zahoor Ahmed’s case was the use of the term ‘property grabbers’ in the preamble of the Act, which was made basis to restrict its scope and applicability. We may state that the term ‘property grabbers’ is not one of those terms that is popularly associated with any particular class of offenders such as the terms ‘Land grabbers’, ‘Qabza Mafia’ or ‘Qabza Group’. In fact none of the popular terms which are identified with a specific category of offenders have been used anywhere in the Act. As the term ‘property grabbers’ appearing in the preamble of the Act has been used in general sense, it cannot be identified with any particular category of offenders in order to restrict the scope and applicability of the Illegal Dispossession Act, 2005 to a particular category of offenders. Additionally, the substantive provision of Illegal Dispossession Act i.e. Section 3 expressly uses general terms such as ‘no one’ and ‘whoever’ for the offender. This clearly indicates that the widest possible meaning is to be attributed to these terms. Thus the provisions of Section 3 clearly demonstrate that whosoever commits the act of illegal dispossession, as described in the Illegal Dispossession Act, 2005 CRIMINAL APPEAL NO. 04-K OF 2012 5 against a lawful owner or a lawful occupier, he can be prosecuted under its provisions without any restriction. 4. To reach the conclusion which it did, the Lahore High Court judgment in Zahoor Ahmed’s case apart from using the term ‘property grabbers’ that finds mention in the preamble had also placed reliance on the caption of the Working Paper that was prepared by the law ministry at the time of laying the Illegal Dispossession Bill before the parliament. The caption of the Working Paper states “The object of the proposed Bill is to provide deterrent punishment to the land grabbers and Qabza Group and to provide speedy justice and effective and adequate relief to the victims dispossessed of immovable property by unlawful means….” It can be seen that the terms ‘land grabbers’ and ‘Qabza Group’ that were there in the caption never found their way in any provision of the Illegal Dispossession Act, 2005. The second part of the caption of the Working Paper narrates “….. to provide speedy justice and effective and adequate relief to the victims dispossessed of immovable property by unlawful means….”. In our view the object contained in this second part of the caption of the Working Paper was in fact achieved as is evident from the contents of the substantive provisions of the Act, which are unambiguous and unequivocal and while interpreting them do not lead to any absurdity. In Gulshan Bibi’s case supra the five member bench of this Court had referred to a judgment from English jurisdiction in the case of Pepper Vs. Hart [1992] 3 WLR 1032 wherein it was held that the exclusionary rule whereby reference to Parliamentary materials was prohibited should be relaxed so that the courts may CRIMINAL APPEAL NO. 04-K OF 2012 6 reach the true meaning of the enactment. However, such a conclusion was qualified i.e. it was held that such a course is to be adopted only in situations where the legislation is ambiguous or obscure or while interpreting the provision it leads to an absurdity. While interpreting the scope of the provisions of the Illegal Dispossession Act, 2005 the larger bench of this Court in Gulshan Bibi’s case supra did not find any ambiguity, obscurity or absurdity in the substantive provisions of the Illegal Dispossession Act, 2005 that would have warranted reference to the relevant Parliamentary material. In paragraphs 6 to 8 of Gulshan Bibi’s case the five member bench of this Court held as follows:- “5. A bare reading of sub-sections (1) of Section 3 the Illegal Dispossession Act, 2005 shows that terms like dispossess, grab, control or occupy have been used which clearly mean that illegal dispossession in all forms have been made an offence and by the use of the terms ‘no one’ and ‘whoever’ in sub-sections (1) and (2) of Section 3, anyone and everyone who commits such an offence was made liable for punishment. The very use of the terms like ‘no one’ and ‘whoever’ are clearly intended to convey the widest possible meaning for the offenders. Thus without any distinction any person who illegally dispossesses, grabs, controls or occupies property of a lawful owner or occupier shall be liable for prosecution under the provisions of the Illegal Dispossession Act, 2005. The second set of cases has however restricted the scope and application of the Illegal Dispossession Act, 2005 to a particular class of offenders only i.e. those who possess the credentials or antecedents of being ‘land grabbers’ or Qabza Group by placing reliance on the term ‘property grabbers’ that appears in the preamble of the Illegal Dispossession Act, 2005. From the mere use of the term ‘property grabbers’ in the preamble one cannot reach the conclusion that the legislature intended that a complainant must first establish that the accused possesses the credentials or antecedents of being a professional land grabber or member of a Qabza Group in order to maintain his complaint under the said Act. The term ‘property grabber’ can be construed to refer to anyone who has committed the act of grabbing CRIMINAL APPEAL NO. 04-K OF 2012 7 someone’s property illegally. Limiting the scope and application of the provisions of the main enactment to a particular class of offenders and that too on the basis of a term used in the preamble would not only deflect the Court to go into issues which are not subject matter of the complaint that is before it but at the same time such an interpretation would violate the cardinal principle of the statutory construction that where the language of the substantive provision of an enactment is clear and not open to any doubt then the preamble cannot be used to curtail or enlarge its scope. Thus where the enactment is clear and unambiguous, the preamble cannot be used to undermine the clear meaning of the provisions of the Act or give it a different meaning. Only where the object or meaning of an enactment is not clear, the preamble may be resorted to in order to explain it. So the preamble is to be resorted only to explain and give meaning to any provision of the enactment where its language is open to doubt or is ambiguous or susceptible to more than one meaning. In the presence of the general terms like ‘anyone’ or ‘whoever’ that have been used to describe the offender, which are clear and wide in their application, the scope of the Illegal Dispossession Act, 2005 cannot be confined to any particular class of offenders. 6. It would also be not out of place to mention here that reference to Legislative history is permissible only as an aid to construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity i.e. from the text of a statute, the court is unable to decipher the real intent of the Legislature. Where the text is clear and there exists no ambiguity, resort to the legislative history may actually be counter-productive. This is because legislative history contains sporadic accounts and arguments made by the parliamentarians and the final outcome of debates and arguments made in the parliament could be much different. Therefore, the real intention of the parliament is to be first and foremost ascertained from the provisions of the enactment itself and frequent resort to the legislative history is not warranted. In this regard the case of Pepper Vs. Hart [1992] 3 WLR 1032, a judgment from English jurisdiction, can be referred with considerable advantage. 7. From what has been discussed above it is evident that no provision of the Illegal Dispossession Act, 2005 imposes any precondition on the basis of which a particular class of offenders CRIMINAL APPEAL NO. 04-K OF 2012 8 could only be prosecuted. The Act aims at granting efficacious relief to lawful owners and occupiers in case they are dispossessed by anyone without lawful authority. Section 3(1) of the said Act by using the terms ‘anyone’ and ‘whoever’ for the offenders clearly warns all persons from committing the offence described therein and when found guilty by the court are to be punished without attaching any condition whatsoever as to the maintainability of the complaint. So all that the Court has to see is whether the accused nominated in the complaint has entered into or upon the property in dispute in order to dispossess, grab, control, or occupy it without any lawful authority. Nothing else is required to be established by the complainant as no precondition has been attached under any provision of the said Act which conveys the command of the legislature that only such accused would be prosecuted who holds the credentials and antecedents of ‘land grabbers’ or ‘Qabza Group’. It does not appeal to reason that for commission of an offence reported it the complaint filed under the Illegal Dispossession Act, 2005 the Legislature would intent to punish only those who hold history of committing a particular kind of offence but would let go an accused who though has committed the offence reported in the complaint but does not hold the record of committing a particular kind of offence. In our view trial of a case is to be relatable to the property which is subject matter of the complainant, pure and simple. Any past history of the accused with regard to his act of dispossession having no nexus with the complaint cannot be taken into consideration in order to decide whether the accused stands qualified to be awarded a sentence under the Act or not. Once the offence reported in the complaint stands proved against the accused then he cannot escape punishment under the Illegal Dispossession Act, 2005. 8. In view of the above discussion we conclude that in any proceedings initiated under Illegal Dispossession Act, 2005, the issues which fall for decision would be whether the offence against a lawful owner or occupier, as described in the complaint, has taken place and whether it is the accused who has committed it without any lawful authority. Anyone found committing the offence described in Section 3 would be amenable to prosecution under the provisions of Illegal Dispossession Act, 2005 and no past record of the accused needs to be gone into by the court.” CRIMINAL APPEAL NO. 04-K OF 2012 9 5. In the impugned judgment it was also held that where civil litigation with regard to illegal dispossession from immoveable property is pending between the parties, the proceedings under the Illegal dispossession Act, 2005 cannot be maintained. This finding is also based on the decision of the Lahore High Court in Zahoor Ahmed's case (PLD 2007 Lahore 231, reasoning of which was adopted by three member bench of this Court in Bashir Ahmed's case (PLD 2010 SC 661). We are of the view that such a finding is also not sustainable in law. Any act which entails civil liability under civil law as well as criminal penalty under criminal law, such as the Illegal Dispossession Act, 2005 then a person can be tried under both kinds of proceedings, which are independent of each other. Once the offence reported in the complaint stands proved against the accused within the confines of the provisions of the Illegal Dispossession Act, 2005 then he cannot escape punishment on the ground that some civil litigation on the same issue is pending adjudication between the parties. No one can be allowed to take law in his own hands and unlawfully dispossess an owner or lawful occupier of an immovable property and then seek to thwart the criminal proceedings initiated against him under the Illegal Dispossession Act, 2005 on the pretext that civil litigation on the issue is pending adjudication between the parties in a court of law. Therefore, irrespective of any civil litigation that may be pending in any Court, where an offence, as described in the Illegal Dispossession Act, 2005, has been committed, the proceedings under the said Act can be initiated as the same would be maintainable in law. CRIMINAL APPEAL NO. 04-K OF 2012 10 6. The above are the detailed reasons of our short order of even date whereby while relying on five Member Bench judgment of this Court dated 18.07.2016 rendered in the case of Gulshan Bibi Vs. Muhammad Sadiq in Civil Petition No. 41/2008 and Civil Appeal Nos. 2054/2007 & 1208/2015, this appeal was disposed of and the matter was remanded back to the learned Trial Court for its disposal on merits. JUDGE JUDGE JUDGE JUDGE JUDGE Karachi, the 22nd of July, 2016 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL APPEALS NO. 400, 401 AND 402 OF 2019 (Against the judgment dated 13.05.2019 passed by the High Court of Sindh, Karachi in Special Cr. ATA Nos. 19/2013, 24/2013, 25/2013, Criminal Revision No. 40/2014 and Conf. Case No. 01/2013) Nawab Siraj Ali & Nawab Sajjad Ali In Crl.A.400/2019 Ghulam Murtaza In Crl.A.401/2019 Shahrukh Jatoi In Crl.A.402/2019 …Appellant(s) Versus The State through A.G. Sindh …Respondent(s) (In all cases) For the Appellant(s): Mr. Mahmood Akhtar Qureshi, ASC (In Crl.A.400/2019) Syed Muhammad Farhad Tirmazi, ASC Syed Rifaqat Hussain Shah, AOR (In Crl.A.401/2019) Sardar M. Latif Khan Khosa, Sr. ASC Syed Rifaqat Hussain Shah, AOR (Assisted by Ms. Suzain Jehan Khan, A.H.C.) (In Crl.A.402/2019) For the Complainant(s): Mr. Muhammad Amir Malik, ASC (In all cases) For the State: Dr. Faiz-ul-Hassan Shah, P.G. Sindh Mr. Zafar Ahmed Khan, Addl.P.G. Sindh Mr. Fauzi Zafar, Addl.A.G. Sindh Date of Hearing: 18.10.2022 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Appellants Nawab Siraj Ali, Nawab Sajjad Ali, Ghulam Murtaza and Shahrukh Jatoi were tried by the learned Anti Terrorism Court No. III, Karachi, pursuant to a case registered CRIMINAL APPEALS NO.400, 401 AND 402 OF 2019 -: 2 :- vide FIR No. 591/2012 dated 25.12.2012 under Sections 302/34 PPC at Police Station Darakhshan, Karachi for committing murder of Shahzaib, son of the complainant. During the course of investigation, Sections 354/109 PPC read with Section 7 of the Anti Terrorism Act, 1997 were added and subsequently, report under Sections 173 Cr.P.C was submitted for the offences under Sections 302/354/109/34 PPC read with Section 7 of the Anti Terrorism Act, 1997. Appellant Shahrukh Jatoi was also tried under Section 13(e) of the Pakistan Arms Ordinance, 1965 for possessing a pistol and four cartridges without license. The prosecution story as narrated by the learned Trial Court reads as under:- “Briefly, the facts of the case, as have come on record, are that in the intervening night of 24th and 25th December, 2012 at about 1215 hours, accused Ghulam Murtaza Lashari, cook of accused Nawab Siraj Ali Talpur and Nawab Sajjad Ali Talpur, assaulted Miss Maha with intent to outrage her modesty at the door of her flat situated at Country Club Apartment, Phase V, DHA, Karachi, when she had just returned after attending Valima reception of her sister Mrs. Paresha. Accused Nawab Siraj Ali Talpur, Nawab Sajjad Ali Talpur and their cook Ghulam Murtaza Lashari were her front door neighbours. On coming to know about the misbehavior of accused with her sister, deceased Shahzaib quarreled with the accused at the ground floor reception of the Country Club Apartment. Meanwhile his father complainant Orangzaib Khan along with his wife Mrs. Ambreen reached there and tried to cool down the situation, but the accused insisted that they would not be satisfied unless accused Ghulam Murtaza Lashari was allowed to slap the deceased. However, the complainant directed the deceased to tender apology which he did, but the accused were not satisfied. In order to avert the untoward situation, the complainant asked the deceased to leave the place. As soon as the deceased left the place in his car, accused Shahrukh Jatoi took out and brandished his pistol, made fires in air and loudly declared that he was Shahrukh Jatoi son of Sikandar Ali Jatoi and that he will kill the accused. Thereafter, all the four accused proceeded from there in a silver colour Toyota car of accused Shahrukh Jatoi. Apprehending evil designs of the accused, two friends of the deceased namely Mohammad Shah and Mohammad Ahmed Zuberi followed the deceased in their car; while parents of the deceased went to the flat of accused Nawab Siraj Ali Talpur and Nawab Sajjad Ali Talpur to talk to their father Nawab Imdad Ali Talpur. The accused intercepted the deceased near Bungalow No.44/1/1-A at Khayaban-e-Behria. Accused Shahrukh Jatoi and Nawab Siraj Ali Talpur had pistols and they made fires upon the deceased while accused Nawab Sajjad Ali Talpur and Ghulam Murtaza Lashari instigated them. P.Ws Mohammad Shah and Mohammad Ahmed Zuberi, who had also reached there and had witnessed the incident, took the deceased to Ziauddin hospital in their car and telephoned the complainant to reach the hospital while he and his wife were talking to Nawab Imdad Ali Talpur at his flat. However, the deceased died before reaching the hospital.” CRIMINAL APPEALS NO.400, 401 AND 402 OF 2019 -: 3 :- 2. On 07.03.2013, formal charge was framed against the appellants to which they pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced as many as 23 witnesses. In their statements recorded under Section 342 Cr.P.C, the appellants pleaded their innocence and refuted all the allegations leveled against them. They did not make statements on oath under Section 340(2) Cr.P.C in disproof of allegations leveled against them. However, they produced five witnesses in their defence. The learned Trial Court vide its judgment dated 07.06.2013 convicted and sentenced the appellants as under:- 1) Under Section 7(a) ATA read with Sections 302/109/34 PPC Sentenced appellants Shahrukh Jatoi and Nawab Siraj Ali Talpur to death while appellants Ghulam Murtaza Lashari and Nawab Sajjad Ali Talpur were sentenced to imprisonment for life. All the appellants were directed to pay Rs.500,000/- each to the legal heirs of the deceased or in default whereof to further undergo imprisonment for two years. 2) Under Section 13(e) of the Arms Ordinance Appellant Shahrukh Jatoi was sentenced to rigorous imprisonment for three years. 3) Under Section 354 PPC Appellant Ghulam Murtaza Lashari was sentenced to imprisonment for one year in addition to sentence of imprisonment for life. His sentence in two counts was directed to run concurrently. Benefit of Section 382-B Cr.P.C. was also given to appellants Shahrukh Jatoi, Nawab Sajjad Ali Talpur and Ghulam Murtaza Lashari. 3. The appellants being aggrieved by the judgment of the learned Trial Court dated 07.06.2013, challenged the same through Special Criminal ATA Nos. 19, 24 and 25/2013 whereas Criminal Revision No. 40/2014 was filed by the complainant before the High Court of Sindh, Karachi. The learned Trial Court also filed Reference under Section 374 Cr.P.C., which was sent for confirmation of the sentence of death passed against the above-said two appellants. During the course of proceedings CRIMINAL APPEALS NO.400, 401 AND 402 OF 2019 -: 4 :- before the learned High Court, the above-said appeals were decided vide order dated 28.11.2017 wherein it was held that the motive behind the occurrence relates to personal vendetta, therefore, the application of Section 6 of the Anti Terrorism Act, 1997, was not justified, hence, it was ordered that conviction and sentence recorded under Section 7 of the Anti Terrorism Act is not sustainable while sending the matter to the court of plenary jurisdiction for de novo trial. The said order of the High Court was challenged by civil society before this Court through Criminal Petition Nos. 119-K/2017, 1-K & 2-K/2018. Leave to appeal was granted by this Court on 13.01.2018, hence, Criminal Appeal Nos. 1-K to 3-K/2018 had arisen out of the leave granting order. Thereafter, this Court vide order dated 01.02.2018 converted these Criminal Appeals into Suo Motu Case No. 01/2018 while exercising jurisdiction under Article 184(3) of the Constitution and decided it in the manner as disclosed below:- “These appeals are converted into a Suo Motu Case under Article 184(3) of the Constitution with a direction to the office to assign a number thereto as such. 2. For reasons to be recorded later the case is disposed of with the following orders: i) The common judgment passed by a learned Division Bench of the High Court of Sindh, Karachi on 28.11.2017 in Special Criminal ATA No.19 of 2013, Special Criminal ATA No.24 of 2013, Special Criminal ATA No.25 of 2013, Criminal Revision Application No.40 of 2014 and Confirmation Case No.1 of 2013 is set aside. ii) The order passed by the said Court in the above mentioned matters remanding the relevant criminal case to a court of ordinary jurisdiction for a de novo trial as well as all the post-remand proceedings before the trial court are also set aside. iii) Special Criminal ATA No.19 of 2013, Special Criminal ATA No.24 of 2013, Special Criminal ATA No.25 of 2013, Criminal Revision Application No.40 of 2014 and Confirmation Case No.1 of 2013 shall be deemed to be pending before the High Court of Sindh, Karachi and the same shall be finally decided on their merits at the Court’s earliest convenience, preferably within a period of two months by another bench of the High Court to be constituted by the Chief Justice of the Court. CRIMINAL APPEALS NO.400, 401 AND 402 OF 2019 -: 5 :- iv) The accused persons convicted in the relevant criminal case by an Anti-Terrorism Court are ordered to be retaken into custody as their admission to bail during the post-remand proceedings was nullity in the eyes of law. Our order dated 13.1.2018 putting the names of the accused on the ECL shall continue to hold the field till the time the main matters remanded to the High Court are finally disposed of.” 4. In pursuance of the order passed by this Court and in the light of the guidelines issued by this Court, the matter was taken up by learned Division bench of the High Court of Sindh to decide the lis on merits. During the pendency of the aforesaid appeals before the High Court in second round of litigation, Miscellaneous Application No. 6194/2013 in terms of Section 345 Cr.P.C. was filed on behalf of the appellants and the complainant. This application was accompanied by the list of witnesses and affidavits of the legal heirs wherein it was categorically stated that a compromise has been affected between the parties and they have pardoned the appellants in the name of Allah Almighty without any badl-e-sulah and had prayed for acquittal of the appellants for the charge of murder. The learned High Court in order to ascertain the authenticity, veracity and genuineness of the compromise, sent the matter to the learned Trial Court to record the statements of the legal heirs of the deceased and submit a report in this regard after fulfilling all legal requirements. The learned Trial Court in pursuance of the order of the High Court recorded the statements of the legal heirs of the deceased and vide report bearing No. ATC-III/KDIV/389/2014, Karachi, dated 23.09.2014 held that the compromise between the parties is genuine, without any duress or coercion and all the legal heirs of the deceased Shahzeb have forgiven the appellants in the name of Allah Almighty without taking any badl-e-sulah or amount of diyat. The learned High Court also found the compromise between the parties to be genuine, without any coercion or duress and that all the legal heirs have forgiven the appellants in the name of Allah Almighty without undue pressure and even without any consideration of diyat. Ultimately, vide impugned judgment dated 13.05.2019, the learned High Court set aside the conviction of the appellants under Section 302/109/354/34 PPC on the CRIMINAL APPEALS NO.400, 401 AND 402 OF 2019 -: 6 :- basis of compromise affected between the parties. As the sentence under Section 7 ATA was not compoundable, the learned High Court maintained the conviction of the appellants under the said provision of law. However, it reduced the punishment awarded to appellants Shahrukh Jatoi and Nawab Siraj Ali Talpur from death to imprisonment for life. The learned High Court also maintained the conviction and sentence of the appellants Ghulam Murtaza Lashari and Nawab Sajjad Ali Talpur under Section 7(a) of the Anti Terrorism Act i.e. imprisonment for life. However, benefit of Section 382-B Cr.P.C. was also extended in favour of the appellants. The appellants being aggrieved by the impugned judgment filed Criminal Petition Nos. 724, 784 & 785/2019 wherein leave was granted by this Court vide order dated 17.09.2019 and the present appeals have arisen thereafter. 5. At the very outset, learned counsel for the appellant Shahrukh Jatoi contended that the occurrence has taken place over a petty issue arising out of quarrel between the deceased and the servant of the appellants. Contends that the same was the outcome of personal dispute, therefore, provision of Section 6 punishable under Section 7 of the Anti Terrorism Act is not applicable in the present case. Contends that so far as conviction and sentences under the provisions of 302/109/34 PPC is concerned, the legal heirs of the deceased have pardoned the appellants in the name of Allah Almighty and have settled the matter, as such, the appellants deserve to be acquitted of the charge of terrorism being not attracted. Contends that so far as the conviction of the appellant under Section 13(e) of the Arms Ordinance is concerned, the recovery was planted on the appellant, therefore, the same may be set aside. In support of the arguments, learned counsel relied upon Ghulam Hussain Vs. The State (PLD 2020 SC 61), Muhammad Akram Vs. The State (2022 SCMR 18) & Muneer Malik Vs. The State (2022 SCMR 1491). Learned counsel for the appellants in connected criminal appeals have adopted the arguments of learned counsel for the appellant Shahrukh Jatoi. CRIMINAL APPEALS NO.400, 401 AND 402 OF 2019 -: 7 :- 6. Learned Prosecutor General Sindh assisted by learned counsel for the complainant has supported the stance taken by the learned counsel for the appellants. It has very frankly been admitted by them that the present case does not fall within the ambit of ‘terrorism’ in view of the law laid down by this Court in the case of Ghulam Hussain Vs. The State (PLD 2020 SC 61), therefore, they have no objection if these appeals are allowed and the appellants are acquitted of the charge. 7. We have heard learned counsel for the parties at some length and have perused the relevant case law on the subject. 8. There is no denial to this fact that the instant matter regarding murder of Shahzeb was initiated vide FIR No. 591/2012 dated 25.12.2012 under Sections 302/34 PPC lodged at Police Station Darakhshan, Karachi, with an allegation that the appellants have committed murder of Shahzeb, son of the complainant with a motive of quarrel, which took place in Country club on previous night. A bare perusal of the crime report clearly reflects that the instant occurrence had taken place within the local limits of Police Station Darakhshan because of scuffle amongst youth in Country club at 2330 hours on 24.12.2012. However, the same was patched up but later on after the lapse of 20 minutes, it was disclosed that the son of the complainant was done to death as a result of firearm injuries inflicted by the appellants before this Court. Primarily, while lodging the crime report, provisions of Anti Terrorism Act were not placed. However, at a belated stage, the said occurrence was considered a case falling within the ambit of Anti Terrorism Act, hence, the said provisions were added during the course of investigation. It is an admitted fact that the matter was contested between the parties up to the level of this Court in the first round of litigation when a finding was given by the learned High Court while deciding the lis that the provisions of Section 6 punishable under Section 7 of the Anti Terrorism Act are not made out from the given facts and circumstances. Said finding of the learned High Court was agitated by Civil Society before this Court and ultimately the matter was remanded back to CRIMINAL APPEALS NO.400, 401 AND 402 OF 2019 -: 8 :- the High Court for deciding the appeals filed by the appellants afresh. During the proceedings before the High Court, an application for compromise duly signed by both the parties was filed and ultimately a report requisitioned from the learned Trial Court was finally adjudicated and decided by the learned High Court while accepting the factum of compromise between the parties in accordance with law. The question which requires determination by this Court is only confined to the question as to (i) whether the ingredients of terrorism are established from the facts and circumstances surfaced during the proceedings before trial court, (ii) whether the provision of Section 6 punishable under Section 7 of the Anti Terrorism Act is applicable in the given circumstances, and (iii) whether the punishment inflicted by the High Court while reducing from death sentence to imprisonment for life was justified at all. Undeniably, it is an admitted fact that provisions of Anti Terrorism Act are co-related and ancillary to the substantive offence, which in all fairness is provision of Section 302 PPC. The gravity of said substantive offence can lead it to the conclusion whether the provisions of Anti Terrorism Act are attracted or not. Anti Terrorism Act is a special law enacted with a special intent and purpose, which can be gathered from the bare reading of Preamble of the said Act. It is principle of legislation that preamble of any enactment is always considered as grundnorm of the legislation, which expresses the postulates to attract the said provision of the enactment according to its scope of legislation. As stated above, the Anti-Terrorism Act is a special enactment and special enactment needs to be taken in perspective of its own object. Any departure from same would be negation of its object and spirit. A preamble of a statute is an introductory and expressionary statement that explains the very purpose and underlying philosophy behind the enactment. To better understand the scheme of Anti Terrorism Act, it would be in order to reproduce the Preamble of the Act, which reads as under:- "An act to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences; CRIMINAL APPEALS NO.400, 401 AND 402 OF 2019 -: 9 :- Whereas it is expedient to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected therewith and incidental thereto; 9. A bare perusal of the Preamble shows that the basic purpose behind the enactment of Anti Terrorism Act, 1997, was to prevent, (i) terrorism, (ii) sectarian violence, and (iii) for speedy trial of heinous offences. The word “terrorism” has been given the same meaning as assigned in Section 6 of the Act, which reads as under:- 6. Terrorism.-(1) In this Act, “terrorism” means the use or threat of action where:- (a) the action falls within the meaning of sub-section (2); and (b) the use or threat is designed to coerce and intimidate or overawe the Government or the public or a section of the public or community or sect 5[or a foreign government or population or an international organization] or create a sense of fear or insecurity in society; or (c) the use or threat is made for the purpose of advancing a religious, sectarian or ethnic cause 1[or intimidating and terrorizing the public, social sectors, media persons, business community or attacking the civilians, including damaging property by ransacking, looting, arson or by any other means, government officials, installations, security forces or law enforcement agencies:] [Provided that nothing herein contained shall apply to a democratic and religious rally or a peaceful demonstration in accordance with law.] (2) An “action” shall fall within the meaning of sub-section (1), if it:- (a) involves the doing of any thing that causes death; (b) involves grievous violence against a person or grievous bodily injury or harm to a person; (c) involves grievous damage to property 2[including government premises, official installations, schools, hospitals, offices or any other public or private property including damaging property by ransacking, looting or arson or by any others means; (d) involves the doing of any thing that is likely to cause death or endangers person’s life; (e) involves kidnapping for ransom, hostage-taking or hijacking; (ee) involves use of explosive by any device including bomb blast 2[or having any explosive substance without any lawful justification or having been unlawfully concerned with such explosive; (f) incites hatred and contempt on religious, sectarian or ethnic basis to strip up violence or cause internal disturbance; (g) involves taking the law in own hand, award of any punishment by an organization, individual or group whatsoever, not recognized by the law, with a view to coerce, intimidate or terrorize public, individuals, groups, communities, government CRIMINAL APPEALS NO.400, 401 AND 402 OF 2019 -: 10 :- officials and institutions, including law enforcement agencies beyond the purview of the law of the land; (h) involves firing on religious congregation, mosques, imambargahs, churches, temples and all other places or worship, or random firing to spread panic, or involves any forcible takeover of mosques or other places of worship; (i) creates a serious risk to safety of the public or a section of the public, or is designed to frighten the general public and thereby prevent them from coming out and carrying on their lawful trade and daily business, and disrupts civic life; (j) involves the burning of vehicles or any other serious form of arson; (k) involves extortion of money (“bhatta”) or property; (I) is designed to seriously interfere with or seriously disrupt a communication system or public utility service; (m) involves serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties; (n) involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant; (o) involves in acts as part of armed resistance by groups or individuals against law enforcement agencies; or (p) involves in dissemination, preaching ideas, teachings and beliefs as per own interpretation on FM stations or through any other means of communication without explicit approval of the government or its concerned departments.] (3) The use or threat of use of any action falling within sub-section (2) which involves the use of firearms, explosive or any other weapon is terrorism, whether or not sub-section (1) (c) is satisfied. (3A) Notwithstanding anything contained in sub-section (1), an action in violation of a convention specified in the Fifth Schedule shall be an act of terrorism under this Act.] (4) In this section “action” includes an act or a series of acts. (5) In this Act, terrorism includes any act done for the benefit of a proscribed organization. (6) A person who commits an offence under this section or any other provision of this Act, shall be guilty of an act of terrorism. (7) In this Act, a “terrorist” means:- (a) an individual who has committed an offence of terrorism under this Act, and is or has been concerned in the commission, preparation, 1[facilitation, funding] or instigation of acts of terrorism; (b) an individual who is or has been, whether before or after the coming into force of this Act, concerned in the commission, preparation, 1[facilitation, funding] or instigation of acts of terrorism, shall also be included in the meaning given in clause (a) above. 10. Section 6 defines terrorist acts, Section 7 provides punishment for such acts whereas Section 8 prohibits acts intended or likely to stir up sectarian hatred mentioned in clauses (a) to (d) thereof. The word “sectarian” has been described as “pertaining to, devoted to, peculiar to, or one which promotes the interest of a religious sects, or CRIMINAL APPEALS NO.400, 401 AND 402 OF 2019 -: 11 :- sects, in a bigoted or prejudicial manner”. However, the word “heinous offence” has not been described in the Act. In common parlance “heinous offence” means an offence which is serious, gruesome, brutal, sensational in character or shocking to public morality and which is punishable under laws of the land. A bare reading of the Anti Terrorism Act reveals that an Anti-Terrorism Court has been conferred jurisdiction not only to try all those offences which attract the definition of ‘terrorism’ provided by the Act but also some other cases, which have been specified in Third Schedule of the Act involving heinous offences which do not fall in the said definition of terrorism. The sole purpose of trying such offences by the Anti Terrorism Court is for speedy trial of such heinous offences irrespective of the fact that they do not fall within the ambit of ‘terrorism’. This Court in the case of Ghulam Hussain Vs. The State (PLD 2020 SC 61) while elaborately discussing the scope and intent of the legislature behind the enactment of Anti Terrorism Act, 1997, has held that “an act of 'terrorism' is not just a grave offence but it is a class and species apart and this class or species has to be understood in its true and correct perception and perspective otherwise every serious offence may be found by one Judge or the other to involve terrorism depending upon a subjective assessment of the potential of the act to create some sense of fear or insecurity in some section of the society. Such an approach may not be wholesome as it may ultimately result in every case of a serious offence landing in a Special Court and thereby rendering the ordinary courts substantially redundant. It ought not to be lost sight of that the legislature's repeal of the Suppression of Terrorist Activities (Special Courts) Act, 1975, doing away with the Schedule of the Anti-Terrorism Act, 1997 at one stage and also its retraction from the 'effect' through the fresh definition of 'terrorism' cannot be without any significance or purpose. That drastic change of the definition manifestly indicated a change of meanings and of focus and such a change has to be given its proper effect. After all if the term 'terrorism' as defined today is still to be interpreted in the same manner as the erstwhile term 'terrorist act' then there was hardly any occasion CRIMINAL APPEALS NO.400, 401 AND 402 OF 2019 -: 12 :- or need for the legislature to amend the definition and to bring about any change in the existing law in that regard. The legacy and interpretations pertaining to the Suppression of Terrorist Activities (Special Courts) Act, 1975 and of the original provisions of the Anti- Terrorism Act, 1997 have now to be shaken or shrugged off so as to correctly understand the definition of 'terrorism' introduced through the later Act and its amendments. This Court had itself declared in the case of Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and others (PLD 2001 SC 169) that the subject matters of the Suppression of Terrorist Activities (Special Courts) Act, 1975 and the Anti-Terrorism Act, 1997 were "different" and their respective applicability was "governed by different criteria". The Court further held that the “distinction between cases of terrorism and cases of specified heinous offences not amounting to terrorism but triable by an Anti- Terrorism Court has already been recognized by this Court in the cases of Farooq Ahmed v. State and another (2020 SCMR 78), Amjad Ali and others v. The State (PLD 2017 SC 661) and Muhammad Bilal v. The State and others (2019 SCMR 1362). It has been clarified by this Court in those cases that such specified heinous offences are only to be tried by an Anti-Terrorism Court and that court can punish the person committing such specified heinous offences only for commission of those offences and not for committing terrorism because such offences do not constitute terrorism. For the purposes of further clarity on this issue it is explained for the benefit of all concerned that the cases of the offences specified in entry No. 4 of the Third Schedule to the Anti- Terrorism Act, 1997 are cases of those heinous offences which do not per se constitute the offence of terrorism but such cases are to be tried by an Anti-Terrorism Court because of their inclusion in the Third Schedule. It is also clarified that in such cases of heinous offences mentioned in entry No. 4 of the said Schedule an Anti-Terrorism Court can pass a punishment for the said offence and not for committing the offence of terrorism. It may be pertinent to mention here that the offence of abduction or kidnapping for ransom under section 365-A, CRIMINAL APPEALS NO.400, 401 AND 402 OF 2019 -: 13 :- PPC is included in entry No. 4 of the Third Schedule and kidnapping for ransom is also one of the actions specified in section 7(e) of the Anti- Terrorism Act, 1997. Abduction or kidnapping for ransom is a heinous offence but the scheme of the Anti-Terrorism Act, 1997 shows that an ordinary case of abduction or kidnapping for ransom under section 365- A PPC is merely triable by an Anti-Terrorism Court but if kidnapping for ransom is committed with the design or purpose mentioned in clauses (b) or (c) of subsection (1) of section 6 of the Anti-Terrorism Act, 1997 then such offence amounts to terrorism attracting section 7(e) of that Act. In the former case the convicted person is to be convicted and sentenced only for the offence under section 365-A, P.P.C. whereas in the latter case the convicted person is to be convicted both for the offence under section 365-A PPC as well as for the offence under section 7(e) of the Anti-Terrorism Act, 1997. The same may also be said about the other offences mentioned in entry No. 4 of the Third Schedule to the Act pertaining to "Use of firearms or explosives by any device, including bomb blast in a mosque, imambargah, church, temple or any other place of worship, whether or not any hurt or damage is caused thereby", "Firing or use of explosive by any device, including bomb blast in the court premises", "Hurt caused by corrosive substance or attempt to cause hurt by means of a corrosive substance" and "Unlawful possession of an explosive substance or abetment for such an offence under the Explosive Substances Act, 1908". Such distinction between cases of terrorism and other heinous offences by itself explains and recognizes that all heinous offences, howsoever serious, grave, brutal, gruesome, macabre or shocking, do not ipso facto constitute terrorism which is a species apart.” This Court in the seven members’ bench judgment has settled the issue that not every case of grievous bodily injury or harm, damage to private property, doing anything that is likely to cause death or endangers a person’s life etc would amount to terrorism. It would be in order to reproduce the relevant portion of the said judgment, which reads as under:- CRIMINAL APPEALS NO.400, 401 AND 402 OF 2019 -: 14 :- “If the said requirements and purposes mentioned in clause (c) of subsection (1) of section 6 do not need to be satisfied and if mere use or threat of use of a firearm, an explosive substance or any other weapon for commission of the actions mentioned in subsection (2) of section 6 is to ipso facto constitute the offence of terrorism then every murder committed (action under clause (a) of subsection (2) of section 6), every grievous bodily injury or harm caused (action under clause (b) of subsection (2) of section 6), every grievous damage to private property (action under clause (c) of subsection of section 6), doing anything that is likely to cause death or endangers a person's life (action under clause (d) of subsection (2) of section 6) or creating a serious risk to safety of the public or a section of the public (action under clause (i) of subsection (2) of section 6) even if committed with an ordinary stick, a brickbat or a stone when used as a weapon would constitute the offence of terrorism! Such trivializing of the diabolical offence of terrorism surely could not be the intention of the legislature when framing a law for the offence of terrorism which is a class apart and a species different from any other ordinary crime................................................... ...... mere shock, horror, dread or disgust created or likely to be created in the society does not transform a private crime into terrorism but terrorism as an 'ism' is a totally different concept which denotes commission of a crime with the design or purpose of destabilizing the government, disturbing the society or hurting a section of the society with a view to achieve objectives which are essentially political, ideological or religious. This approach also appears to be in harmony with the emerging international perspective and perception about terrorism. The international perception is also becoming clearer on the point that a violent activity against civilians that has no political, ideological or religious aims is just an act of criminal delinquency, a felony, or simply an act of insanity unrelated to terrorism. This metamorphosis in the anti- terrorism law in our country has brought about a sea change in the whole concept as we have understood it in the past and it is, therefore, of paramount importance for all concerned to understand this conceptual modification and transformation in its true perspective. 11. Admittedly, in the present case, the occurrence took place due to cutting indecent joke with daughter of the complainant by the appellant Ghulam Murtaza Lashari, who was cook of the appellant Shahrukh Jatoi, which aggravated the situation and ultimately resulted into instant unfortunate incident. If the facts of this case are evaluated on the touchstone of the very scheme of the Anti Terrorism Act and the CRIMINAL APPEALS NO.400, 401 AND 402 OF 2019 -: 15 :- dictum laid down by a larger Bench comprising of seven members of this Court, it becomes crystal clear that there was no element of terrorism in the present case. This aspect also lends support from the fact that the father of the deceased, who was himself a police officer, while lodging the crime report admitted that scuffle took place amongst youth in Country club, which ultimately resulted into the instant unfortunate incident. It is a matter of great concern and apathy that a young man lost his life as a result of an incident, which was initiated by servant of the appellant Shahrukh Jatoi and the deceased became a classic example of egoistic approach, which in all eventualities is drastic and the society cannot accredit the same by any stretch of imagination. The involvement of civil society while agitating the grievances of an individual lends support that the egocentric attitude is unacceptable leaving far reaching impression not only for the youth of the day rather for the generations to come. All these facts and circumstances when considered and evaluated conjointly, it might imprint an impression otherwise but we are constrained to follow the Constitution and the law on the subject. It seems essential to reiterate that the courts adjudicate the matters without being influenced by passions. The prime duty of the Court is to do justice according to its own conscience. While dealing with the life and liberty of an accused, utmost care and caution is required to be exercised by the Courts of law because slight carelessness on their part may deprive an accused person/citizen of his life and may cause irreparable hardship and damage to his family. Reference is placed on Khalil-uz-Zaman Vs. The State (PLD 1994 SC 885). We also feel it appropriate to refer to a bouquet of Ahadees mentioned in Khalil-uz-Zaman supra case on this issue, which is as follows:- CRIMINAL APPEALS NO.400, 401 AND 402 OF 2019 -: 16 :- 12. We feel appropriate to refer to some of the judgments of this Court where the occurrence took place due to personal vendetta/enmity and the substantive offence under Section 302 PPC was compromised between the parties, this Court set aside the conviction and sentence of the accused under Section 7 of the Anti Terrorism Act, 1997. In the case of Muhammad Akram Vs. The State (2022 SCMR 18), the accused committed murder of his wife under the impulses of ‘ghairat’. He was convicted under Section 302(b) PPC read with Section 7 of the Anti Terrorism Act and was sentenced to imprisonment for life. During the pendency of his petition before this Court, the parties compromised the matter. The Court accepted the compromise and set aside the conviction of the accused under Section 7 of the Anti Terrorism Act. The judgment of Muhammad Akram supra case was further reiterated by this Court in the case of Muneer Malik Vs The State (2022 SCMR 1494). The same was the case in Amjad Ali Vs. The State (PLD 2017 SC 661), Dilawar Mehmood Vs. The State (2018 SCMR 593), Muhammad Bilal Vs. The State (2019 SCMR 1362) and Farooq Ahmed Vs. The State (2020 SCMR 78). In these circumstances, there left no ambiguity that the present case was the outcome of personal egoistic approach and there was no design or purpose of destabilizing the government, disturbing the society or hurting a section of the society with a view to achieve objectives which are essentially political, ideological or religious, therefore, provisions of Anti Terrorism Act were not applicable in the present case. 13. So far as the conviction of the appellant Shahrukh Jatoi under Section 13(e) of the Arms Ordinance is concerned, admittedly the crime empties were firstly sent to Forensic Science Laboratory on 31.12.2012 but subsequently they were taken back on 17.01.2013 and were re-submitted later on along with the alleged recovered pistol from the appellant on 23.01.2013. This Court in a number of cases has held that if the crime empty is sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory looses its evidentiary value. Sending the crime empties together with the weapon of offence is not a safe way to CRIMINAL APPEALS NO.400, 401 AND 402 OF 2019 -: 17 :- sustain conviction of the accused and it smacks of foul play on the part of the Investigating Officer simply for the reason that till recovery of weapon, he kept the empties with him for no justifiable reason. In this view of the matter, we set aside the conviction of the appellant Shahrukh Jatoi under Section 13(e) of the Arms Ordinance. 14. For what has been discussed above, these appeals are allowed and the impugned judgment is set aside. The appellants are acquitted of the charge. They shall be released from jail forthwith if not required/detained in any other case. The above are the detailed reasons of our short order of even date. JUDGE JUDGE JUDGE Islamabad, the 18th of October, 2022 Approved For Reporting Khurram

Crl. A. No. 402 of 2013 (1).doc IN THE SUPREME COURT OF PAKISTAN ( Appellate Jurisdiction ) PRESENT: Mr. Justice Gulzar Ahmed Mr. Justice Sardar Tariq Masood Mr. Justice Faisal Arab CRIMINAL APPEALS NO. 402 & 403 OF 2013 (On appeal against the judgment dated 15.06.2009 passed by Lahore High Court, Lahore in Crl. A. No. 615 of 2003) Sardar Bibi widow of Muhammad (In Crl. A. No. 402 of 2013) Qamar Abbas & another (In Crl. A. No. 403 of 2013) … Appellant (s) Versus Munir Ahmed etc.. (In Crl. A. No. 402 of 2013) The state (In Crl. A. No. 403 of 2013) … Respondent (s) For the appellant (s) (In Crl. A. No. 402 of 2013) : Mr. Ghulam Mustafa Kandwal, ASC Syed Rifaqat Hussain Shah, AOR In Crl. A. No. 403 of 2013 : Mrs. Bushra Qamar, ASC Mrs. Tasneem Ameen, AOR (Absent) For the respondent (s) (In Crl. A. No. 402 of 2013) : Mrs. Bushra Qamar, ASC Mrs. Tasneem Ameen, AOR (Absent) For the state : Ch. Muhammad Waheed Khan, Addl. P.G. Pb. Date of Hearing : 29.11.2016 JUDGMENT SARDAR TARIQ MASOOD, J. Qamar Abbas and Falak Sher (appellants in Criminal Appeal No. 403 of 2013) along with acquitted accused persons i.e. Munir Ahmed, Sikandar Hayat, Fateh Muhammad, Mulazim Hussain, Nasar Iqbal (Respondents No. 1 to 5 in Criminal Appeal No. 402 of 2013) along with Sultan Ahmad, Akram and Baati, allegedly committed murder of Zafar Iqbal and Sarwar within the area of village Rairka Bala within the jurisdiction of P.S. Miana Gondal, District Mandi Baha-ud-Din on 12.06.2001 at 2:00 a.m.. All the above mentioned accused persons were booked in case FIR No. 158 registered on the same day at the same police station. It is alleged in the FIR that after the occurrence the accused persons took away the chopped head of Zafar Iqbal to their Daira and had shown the same to their father Shana accused (since dead) and told him that they had taken the revenge of the murder of their brother whereupon Shana directed them to cause the said head disappear. The motive mentioned in the FIR was that Khizer Hayat, the maternal nephew of complainant, had murdered Crl. A. No. 402 of 2013 (1).doc Muhammad Ameer son of Shana accused, 4/5 years prior to the occurrence. After the conclusion of trial, both the appellants of Criminal Appeal No. 403 of 2013 along with respondents No. 1 to 5 were convicted under Section 148 P.P.C. and were sentenced to three years R.I. each along with fine of Rs. 20,000/- each or in default thereof to further undergo S.I. for six months. Falak Sher, Qamar Abbas, Munir Ahmed, Sikandar and Mulazam Hussain were also convicted under Section 302 (b) read with Section 149 P.P.C. and were sentenced to death on two counts as Tazir and to pay Rs. 100,000/- each on two counts as compensation under Section 544-A Cr.P.C. or in default thereof to further undergo S.I. for six months whereas Nasar Iqbal and Fateh Muhammad were convicted under Section 302 (c) read with Section 149 P.P.C. and were sentenced to ten years R.I. on two counts. They were also directed to pay compensation of Rs. 25,000/- each or in default thereof to further undergo six months S.I.. The conviction and sentence of Falak Sher and Qamar Abbas was upheld by the Division Bench of the Lahore High Court only for the murder of Zafar Iqbal deceased whereas the conviction and sentences of Munir Ahmed, Mulazam Hussain, Sikandar Hayat, Fateh Muhammad and Nasar Iqbal were set aside by the High Court. Hence the present appeals, by leave of this Court granted on 05.12.2013, to re-appraise the entire evidence and with the assistance of the learned counsel for the parties, we have undertaken that exercise and also perused the record. . 2. According to the prosecution, the occurrence took place at 2:00 a.m. in odd hours of the night. Although prosecution alleged that sufficient light of bulbs was available there but during investigation, no such bulbs (source of light) were taken into possession by the I.O.. In that eventuality, the identification of the assailants became doubtful especially when Mehmand complainant, PW-11 and Muhammad Yar PW-12 allegedly saw the occurrence from a distance of more than 100 feet. Learned counsel for the complainant and learned Additional Prosecutor General are unable to give any explanation as to why the source of light was not taken into possession. We have also observed that the residential house of complainant was at a distance of 3 acre from the place of occurrence whereas the residential house of Muhammad Yar PW-12 was at the distance of 1-1/2 mile from the place of occurrence. The Crl. A. No. 402 of 2013 (1).doc sons of the complainant were sleeping in front of the cattle shed. In that eventuality, the presence of Mehmand, complainant and Muhammad Yar, across the road, upon the roof top of his another Haveli is a sheer chance because at such odd hour of the night they were supposed to be present in their residences which is far away from the place of occurrence. According to Muhammad Yar, PW-12, normally at the time of occurrence he used to be at his residence which is 1-1/2 mile away from the place of occurrence. He did not put forward any reason for his presence at the place of occurrence except that he was sleeping on the roof of the cattle shed of complainant. Both the witnesses of the ocular account in their statements before the court claimed that they were sleeping on the roof top of the cattle shed of the complainant. The site plan (Exb-PL) totally negate this version as the cattle shed and the open place where both the deceased were sleeping, were on the northern side of the road whereas the complainant and Muhammad Yar were allegedly sleeping across the road on the roof top of the Haveli of complainant shown at point “E” of the site plan. The presence of the said witnesses at the roof top of the cattle shed is not shown in the site plan. So the presence of both the witnesses at the place of occurrence is doubtful. In the FIR, the complainant claimed that Qamar Abbas and Mulazam were armed with Tokas whereas rest of the accused, eight in numbers, were armed with firearm weapons. No specification of said firearm weapons were given in the FIR or in the statement under Section 161 Cr.P.C.. From the place of occurrence, only two crime empties of .12 bore have been recovered. Both the witnesses for the first time during trial specified the weapons and alleged that such and such specific weapon was in the hand of such and such accused. Both the witnesses had been duly confronted with their previous statements where such specification of weapons was not mentioned. As doctor, while conducting postmortem examination, declared that the deceased persons received bullet injuries hence for the first time during trial, Falak Sher and Sikandar were shown to be armed with .30 bore pistol and Munir being armed with 7mm rifle. This willful and dishonest improvement was made by both the witnesses in order to bring the prosecution case in line with the medical evidence. In the FIR the complainant alleged that fire shot of Falak Sher hit Zafar Iqbal deceased on Crl. A. No. 402 of 2013 (1).doc his chest and the fire shot of Sultan Ahmed accused also hit on the chest of deceased Zafar Iqbal. According to doctor, there was only one fire arm entry wound on the chest of the deceased Zafar Iqbal. In order to meet this situation, witnesses for the first time, during trial made omission and did not allege that the fire shot of Sultan hit at the chest of Zafar Iqbal, deceased. So the improvements and omissions were made by the witnesses in order to bring the case of prosecution in line with the medical evidence. Such dishonest and deliberate improvement and omission made them unreliable and they are not trustworthy witnesses. It is held in the case of Amir Zaman Vs. Mahboob and others (1985 SCMR 685) that testimony of witnesses containing material improvements are not believable and trustworthy. Likewise in Akhtar Ali’s case (2008 SCMR 6) it was held that when a witness made improvement dishonestly to strengthen the prosecution’s case then his credibility becomes doubtful on the well-known principle of criminal jurisprudence that improvement once found deliberate and dishonest, cast serious doubt on the veracity of such witness. In Khalid Javed’s case (2003 SCMR 149) such witness who improved his version during the trial was found wholly unreliable. Further reference in this respect may be made to the cases of Mohammad Shafique Ahmad Vs. The State (PLD 1981 SC 472), Syed Saeed Mohammad Shah and another Vs. The State (1993 SCMR 550), and Mohammad Saleem Vs. Mohammad Azam (2011 SCMR 474). According to prosecution, Falak Sher appellant and his co-accused Sultan Ahmed effectively fired at the chest of Zafar Iqbal deceased but the trial court had acquitted Sultan Ahmed vide judgment dated 09.04.2003 and the eye witnesses produced by the prosecution i.e. Mehmand complainant (PW-11) and Muhammad Yar (PW-12) were not believed to the extent of the said co- accused. The said acquittal has not been challenged by the complainant or state. Likewise it was the prosecution case that Qamar Abbas appellant along with his co-accused Mulazam chopped the neck of Zafar Iqbal with Tokas. It was also the case of the prosecution that the neck of the deceased Zafar Iqbal was still attached with the body of the deceased when Akram and Baati accused persons separated the same from the body by pulling it. The trial Crl. A. No. 402 of 2013 (1).doc court acquitted Akram and Baati accused whereas Mulazam Hussain had been acquitted by the High Court meaning thereby the eye witnesses had not been believed to the extent of said co-accused who actively participated in the process of chopping and detaching the head of Zafar Iqbal from his body. This court had already settled the law on the point that if the eye witnesses produced by the prosecution are disbelieved to the extent of some accused person attributed effective role, then the said eye witnesses cannot be relied upon for the purpose of convicting another accused person attributed a similar role, without availability of independent corroboration to the extent of such other person. Reference in this respect may be made to the cases of Ghulam Sikandar Vs. Mamaraz Khan (PLD 1985 S.C. 11), Sarfraz alias Sappi Vs. The State (2000 SCMR 1758), Iftikhar Hussain and others Vs. The State (2004 SCMR 1185), Farman Ahmed Vs. Muhammad Inayat and others (2007 SCMR 1825), Akhtar Ali Vs. The State (PLJ 2008 SC 269), Irfan Ali Vs. The State (2015 SCMR 840) and Shahbaz Vs. The State (2016 SCMR 1763) and Akhtar Ali and Others Vs. The State (2008 SCMR 6) Although, the High Court considered the recovery of pistol from Falak Sher as corroboratory piece of evidence but we observe that in the FIR no specific weapon was shown in the hands of the appellant Falak Sher. Even no crime empty of .30 bore was recovered from the place of occurrence and there is no positive report of FSL regarding matching of any crime empty with the allegedly recovered pistol from Falak Sher. So the said recovery is inconsequential and cannot be considered as the corroborative piece of evidence. So far recovery of Toka from Qamar Abbas appellant is concerned, we observe that such recovery was effective after about one month of occurrence and Talib Hussain PW-4 admitted that the place of recovery was collectively inhabited by all the accused so the place of recovery is a joint house and was not in the exclusive possession of Qamar Abbas appellant. Allegedly, the recovery was effected after about one month of the occurrence and it is not expected from an accused person to keep such weapon (stained with blood) as souvenir because during the said period there was ample time to destroy or at least washout the said weapon. The Toka was recovered from Crl. A. No. 402 of 2013 (1).doc behind the door of a house which according to PW was collectively inhabited by many persons. In these circumstances, it could not be said that the recovery was made from the exclusive knowledge and possession of the accused. So no reliance can be placed to such recovery and the High Court had wrongly considered such doubtful recoveries as corroborative piece of evidence to the unreliable ocular account. In the absence of any independent corroboration, the appellants, Falak Sher and Qamar Abbas deserve the acquittal, in view of the case law referred above. 3. Although in the FIR, complainant alleged specific motive regarding the murder of son of Shana accused by maternal nephew of complainant but during cross examination complainant admitted that besides Khizar Hayat, Nawaz and Ejaz were also involved in the said murder case and all the said accused had been acquitted due to a compromise arrived at between the parties. He also admitted that neither he nor his deceased sons were involved in any manner in the said murder case. In that eventuality, there was hardly any occasion for the appellants to commit the murder of deceased person. The complainant during cross examination tried to meet this situation and claimed that he was blamed by the accused person about the said murder. This explanation and improvement is not helpful to the prosecution as in that situation the complainant should be the first target, if present at the spot. From the above discussion, it is quite clear that appellants and their co-accused had no motive or reason to commit murder of the deceased persons and the asserted motive has not been proved. Although occurrence took place at 2:00 a.m. and police station was at a distance of 9 kilometer but report had been lodged not at the police station rather at the spot at about 6:00 a.m. which gave inference that FIR had been lodged after deliberation and consultation. The complainant also admitted during cross- examination that police recorded his statement after the spot inspection. He further deposed that police remained at the spot till 9:30 a.m. and after their departure, he went to police station and told the name of accused again in the police station and his thumb impression was obtained on his statement in the police station, whereas according to prosecution the complaint/fard bayan Crl. A. No. 402 of 2013 (1).doc was prepared at the spot. Subsequent statement of complainant in the police station after 9:30 a.m. further confirms the deliberation and consultation on the part of complainant and the police. According to prosecution, the matter was reported at 6:00 a.m. but postmortem examination on the dead body was conducted at 1:00 p.m. i.e. after 7 hours of the lodging of FIR. This delay raised suspicion regarding the registration of the FIR at the given time. The investigation officer, who initially investigated this case was Tariq Mehmood Ghani, but he was not produced by the prosecution as prosecution had claimed that the said witnesses had gone abroad. Although, secondary evidence has been produced to the extent of said I.O. but prosecution did not establish, by producing the constable, who made report that the said witness had gone abroad. Due to said reason, defence was deprived of valuable right to cross-examine the said I.O. through whom all the facts and circumstances favoring the accused could have been brought on the record. 4. From the above discussion, it is quite clear that in this case FIR was chalked out after consultation and deliberation. The delay in the FIR and postmortem examination further confirms that FIR and documents i.e. inquest report etc. were prepared much after the given time. The source of light i.e. bulbs etc. was not taken into possession during investigation to establish that the witnesses who were allegedly at the distance of more than 100 feet could identify the assailants. So the identification of the assailants was also doubtful in such circumstances of the case. The witnesses of the ocular account are closely related to the deceased and were chance witnesses as their places of residence were far away from the spot. They could not establish their presence at the place of occurrence. Besides that these two witnesses made dishonest and willful improvements and omission in order to strengthen the prosecution case and bring their case in line with the medical evidence. In that eventuality, no reliance can be placed on their testimony as they were not truthful witnesses. The motive in this case remained unproved as neither the deceased nor the complainant were involved in any manner in the murder case of the son of accused Shana and there is no occasion for the accused party to launch attack upon the deceased person. The recovery of pistol from Falak Sher Crl. A. No. 402 of 2013 (1).doc without any positive report of FSL is inconsequential, as discussed above, and the recovery of Toka from Qamar Abbas from a house inhabited by many persons is also not legally helpful to the prosecution. The prosecution had involved the whole family of Shana accused and other relatives and due to the said reason, certain accused persons had been acquitted by the trial court whereas respondents No. 1 to 5 of Criminal Appeal No. 402 of 2013 have been acquitted by the High Court. In that eventuality, independent strong corroboration was required to uphold the conviction and sentence of the appellants in Criminal Appeal No. 403 of 2013 but we have failed to find out any independent corroboration to the ocular account furnished by the above mentioned eye witnesses and the fate of the present appellants i.e. Qamar Abbas and Falak Sher cannot be any different from that of their acquitted co- accused. Consequently, Criminal Appeal No. 402 of 2013 against the acquittal of respondents No. 1 to 5 is dismissed and sureties along with P.R. bonds deposited with the Additional Registrar (Judicial) of this Court are hereby discharged. Criminal Appeal No. 403 of 2015, filed by Qamar Abbas and Falak Sher appellants is, therefore, allowed. Their conviction and sentence, recorded and upheld by the courts below, are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They shall be released from jail forthwith if not required to be detained in connection with any other case. Judge Judge Islamabad, the Judge 29th November, 2016 Atif*/ APPROVED FOR REPORTING Announced in the open Court on __________ at Islamabad. Judge

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice MushirAlam Mr. Justice YahyaAfridi Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.40 of 2020 (Against the judgment dated 13.06.2014 passed by the Lahore High Court Lahore in Crl.A. No.693/2007 along with M.R. No.206/2007) Ghulam Mustafa …Appellant(s) Versus The State …Respondent(s) For theAppellant(s): Mr. Muhammad Siddique Khan Baloch, ASC For the State: MirzaAbidMajeed, Addl. Prosecutor General Punjab Date of hearing: 29.09.2019. JUDGMENT Qazi Muhammad Amin Ahmed, J.-Indicted alongside Sajjad alias Shada, Abdul Wahid, Fakhar Iqbal and Shoukat Ali, since acquitted, the appellant was returned a guilty verdict by a learned Additional Sessions Judge at Kamalia; convicted under clause (b) of section 302 of the Pakistan Penal Code, 1860 for committing Qatl-i-Amd of Muhammad Imran, 22, at 7:00 p.m. on 22.11.2004 within the remit of Police Station City Kamalia, he was sentenced to death vide judgment dated 25.04.2007, maintained by the High Court albeit with alteration penalty of death into imprisonment for life vide judgment dated 13.06.2014, being impugned through leave of the Court. Criminal Appeal No.40 of 2020 2 2. On the fateful day, after spending Eid holidays in his home town, the deceased was scheduled to return to his workplace in Lahore alongside co-worker Yasin (PW-10); at about 7:00 p.m. the complainant went to see off him; as he reached Madani Chowk, he saw the appellant, armed with a Churri, accompanied by acquitted co-accused, each differently armed, mounting assault upon the deceased; the appellant dealt a Churri blow to the deceased on the left side of his abdomen; Irshad and Abdul Wahid dealt him with club blows on his head while Fakhar Iqbal and ShoukatAli, brandishing pistols kept the witnesses at bay; though omitted by the complainant in crime report (Ex.PB), Yasin (PW-10) statedly endured blunt weapon injuries, inflicted by the acquitted co-accused. Admonition by Yasin (PW-10) to the accused, blamed foreve-teasing, is cited as motive for the murder followed by an altercation of even date.Autopsy was conducted at 1:30 p.m. on 23.11.2004; though admitted by the medical officer during the cross-examination, Yasin (PW-10) was also examined by himduring the same night. 3. Learned counsel for the appellant contends that evidence disbelieved qua majority of the accused, some of whom are assigned effective roles, vis-à-vis the injured cannot sustain appellant’s conviction in the absence of independent corroboration, hopelessly lacking in view of exclusion of prosecution evidence on recovery and motive; that crime report is silent on injuries sustained by Yasin (PW-10), introduced by the complainant, for the first time in the witness box through an improvement, duly confronted during his cross-examination; he has also assailed the credentials of Yasin PW as an eye witness on the ground that he admittedly made no statement to the Investigating Officer despite claim of presence and as suchhis testimony carried no weight, particularly in view of rejection of his statement on his own Criminal Appeal No.40 of 2020 3 injuries. The learned Law Officer defended the impugned judgment. 4. Heard. Record perused. 5. The incident occurred in a residential neighbourhood, located at a distanceof 2 ½ k.m. from Police StationCity Kamalia, witnessed amongst others, by Yasin (PW-10)who claims to have himself sustained multiple club blows on different parts of his body i.e. head and nose, noted by medical officer who conducted the autopsy; surprisingly his medico legal certificate is not on the record; though the medical officer admitted in his cross-examination to have examined him at 7:45 p.m, presumably under a police docket. In this backdrop, report to the police at a place other than police stationat 12:15 a.m. confirms a delay that clamors for explanation;admission by the medical officer suggests an intriguing interregnum that reflects a surreptitious silence, casting its shadow on the autopsy delayed by 18 ½ hours, despite availability of the medical officer; confounding prosecution’s dilemma further,the witness has not even been believed against his own assailant and, thus,stranded from the scene.Complainant’s case qua Yasin (PW-10) is not on a better footing either as he made no reference in the crime report to the injuries suffered by the said witness which is further contradicted by the autopsy report inasmuch as solitary stab wound on the abdomen is noted with no injuries on the head as attributed in the crime report to Irshad and Abdul Wahid co-accused, since acquitted. It is no less surprising that the accused despite armed with pistols preferred to target the deceased with a non-conventional weapon. With a manifestly flawed ocular account, prosecution’s failure on motive and recoveryof weapon as well as co-accused has grievously undermined its case vis-à-vis the appellant as well. Arguments that the occurrence did not take place in themanner as alleged in the crime report and Criminal Appeal No.40 of 2020 4 that incident was subsequently reported by the witnesses, stage-managed in circumstances, cannot be dismissed out of hand. Since the very genesis of the incident is far from being clear, it would be grievously unsafe to single out the appellant from the array. Criminal Appeal is allowed; impugned judgment is set aside; the appellant is acquitted of the charge and shall be released forthwith if not required to be detained in any other case. Judge Judge Judge Islamabad 29thSeptember,2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Gulzar Ahmed Mr. Justice Dost Muhammad Khan CRIMINAL APPEALS NO.413/2003 and 414/2003 (On appeal from the judgment dated 29.10.2001 passed by the Lahore High Court, Lahore in Crl.A.202/1996 and Crl.Rev. 245/1996 and M.R. No.379/1998) Crl. A. No.413/2003 Ghulam Mohy-ud-Din alias Haji Babu & others …Appellants VERSUS The State ….Respondent For the appellants: Syed Zahid Hussain Bukhari, ASC For the State: Mr. Ahmed Raza Gillani, Addl. PG (Pb) Crl. A. No. 414/2003 Haji Muhammad Sadiq …Appellant VERSUS Liaquat Ali, etc ….Respondents For the appellant: Syed Zulfiqar Abbas Naqvi, ASC For private respondents: Raja Ghazanfar Ali Khan, ASC For State: Mr. Ahmed Raza Gillani, Addl. PG (Pb) Date of hearing: 18.02.2014 JUDGMENT Dost Muhammad Khan, J.— This single judgment shall decide both the above titled appeals because the same have arisen out of a common judgment rendered by the Lahore High Court, Lahore in Criminal Appeal No.202/1996, Criminal Revision Crl.As.No.413-414/2003 2 No.245/1996 and Murder Reference No.379/1996; also because the same are the result of a single judgment given by the learned trial Judge, thus, the exercise of re-appraisal of the same evidence is to be carried out to reach at a proper conclusion. 2. Precise but relevant facts leading to the present tragedy are that on 25.08.1994 at about 8:00 pm, complainant Muhammad Sadiq (PW-6) was present in his sugarcane crushing machine, installed in his shop, opposite thereof was the shop of Muhammad Ayub, deceased, who along with his brother Abid Hussain deceased, was present there and were busy in chatting, when in the meanwhile appellants (i) Ghulam Mohay-ud-Din @ Babu, (ii) Ahmad @ Muhammad Ahmad (iii) Amanat Ali, (iv) Liaqat Ali (v) Allau-ud- Din and (vi) Nehal-ud-Din and (vii) Amin-ud-Din, armed with daggers, hatchets and butcher-knives reached there, raising ‘Lalkara’ that Muhammad Ayub and Abid Hussain would not be spared. Ghulam Mohay-ud-Din appellant inflicted a dagger blow on the right shoulder of Muhammad Ayub deceased, repeating two more blows with dagger, landing on the right side of deceased’s chest. Appellant No.2, Ahmad @ Muhammad Ahmad also inflicted dagger blow on the posterior side of head of deceased Abid Hussain, causing him injury on the back of his neck and other on his shoulder. Similarly, Liaqat Ali (respondent No.4 in cross Criminal Appeal No.414 of 2003) inflicted two injuries with dagger on deceased Muhammad Ayub, one in the abdomen and other on his forehead, while third injury was caused to him on his buttock. Amanat Ali (respondent No.3 in cross appeal) gave hatchet blow on the left side of Muhammad Ayub deceased and left arm, while third Crl.As.No.413-414/2003 3 blow was given on the upper part of the back of his chest. Allau-ud- Din, Nehal-ud-Din and Amin-ud-Din [respondents (v), (vi) and (vii) in cross appeal filed by the complainant], while brandishing butcher knives, warned the people not to come near them. All the accused then decamped from the spot. The complainant Haji Muhammad Sadiq (PW-6), Muhammad Yasin (PW-7) and Muhammad Rafique (not produced), witnessed the crime. The complainant with the help of PWs and others, took both the injured to Nishter Hospital, Multan but both succumbed to the injuries there. 3. Motive, for the crime was alleged to be a dispute and litigation between the parties over a Khokha (wooden stall). 4. Report of the crime was made in Police Station ‘Lohari Gate’ at 10:00 pm which was registered at serial No.200/94 under sections 302/148/149 PPC. During inspection of the crime site, blood of the two deceased was secured from two places vide Memos Ex.PD and Ex-PF. 5. The three appellants, namely, (i) Ghulam Mohay-ud-Din @ Babu, (ii) Ahmad @ Muhammad Ahmad and (iii) Amanat Ali were arrested on 02.09.1994, while the rest of the accused were arrested on 05.09.1994. 6. While, under interrogation in police custody, the alleged crime daggers were respectively recovered from Ghulam Mohay-ud- Din, [Ex.P.1, vide memo Ex. PB] and from Ahmad [Ex.P.2, vide memo Ex.PC], whereas crime hatchet, [Ex.P.3, vide memo Ex.PD] Crl.As.No.413-414/2003 4 was recovered from Amanat Ali on 06.09.1994. All these crime weapons were stated having blood stains. 7. At the conclusion of investigation, charge-sheet was filed before the learned Additional Sessions Judge/trial Court, whereas, nine PWs, in all, were produced, including the two eye- witnesses namely, Haji Muhammad Sadiq (PW-6) and Muhammad Yasin (PW-7). 8. During the autopsy, conducted by Dr. Shahid Hussain Magasi (PW-8) on the dead-body of Abid Hussain, he found following injuries on the body:- (i) An incised wound 5 cm x 2 cm on the right scapular region, penetrating into thorax. (ii) Incised wound 7 cm x ½ cm on the back in the mid line and on left scapular region. The wound was skin deep. (iii) An incised wound 4 cm x 1 cm on the upper part of left buttock. The wound was 8 cm deep cutting the major blood vessels. (iv) Incised wound 4 cm x 1 cm in “L” shape, skin deep on left palm. In the opinion of Medical Officer, all the injuries were ante-mortem, having been caused with sharp edged weapon, while cause of death was shown haemorrhage. 9. During autopsy on the dead-body of Muhammad Ayub deceased, the Medical Officer noted the following injuries:- Crl.As.No.413-414/2003 5 (i) An incised wound 3 ½ cm x 1 ½ cm on the front of right chest, 2 cm from right nipple. The wound was muscle deep. (ii) An incised wound 2 ½ cm x 1 cm on the front of right chest 1 ½ cm from right nipple. (iii) A lacerated wound 4 cm x 1 cm on the right side of forehead, wound was scalp deep, 2 cm from right eyebrow. (iv) An incised wound 5 cm x 1 ½ cm on right forearm 10 cm from right wrist. The wound was muscle deep. (v) An incised wound 4 cm x 1 ½ cm on left groin 4 cm deep major blood vessels were cut underneath. (vi) An incised wound 6 cm x 3 cm on back of left forearm cutting underlying bone (Ulna) just above wrist joint. (vii) An incised wound 2 cm x 1 cm on left forearm, 3 cm from left wrist joint. The wound was muscle deep. (viii) An incised wound 5 cm x 3 cm on the inner side of left leg just below left knee joint, with partial cutting of under lying bone (tibia). All the injuries were ante-mortem. Injury No.3 was caused with blunt weapon whereas rest of the wounds were caused by sharp edged weapon. All the injuries collectively were sufficient to cause death in ordinary course of nature. 10. The rest of the witnesses are either formal in nature or have played no vital role, therefore, their testimony need not to be discussed or re-appraised. Crl.As.No.413-414/2003 6 11. The two eye-witnesses, namely, Haji Muhammad Sadiq (PW-6) and Muhammad Yasin (PW-7) have given ocular testimony. Both are shopkeepers of the close vicinity to the crime spot. To great extent, they have justified their presence at the crime site, on the fateful day albeit. Judged from different angles, it appears to us that they have not told the whole truth and have exaggerated the account of occurrence to some extent. For this reason, both, the learned trial Court and the Lahore High Court in succession, have made efforts to remove the chaff from the grains. Learned trial Judge, at the conclusion of the trial, convicted the appellants (i) Ghulam Mohay-ud-Din @ Babu, (ii) Ahmad @ Muhammad Ahmad, (iii) Liaqat Ali and (iv) Amanat Ali under section 302(b)/34 PPC on two counts for committing murder of Muhammad Ayub and Abid Hussain and each one was sentenced to death as Ta’zir on two counts. All the four convicts were directed to pay Rs.50,000/- each, to the legal heirs of the deceased or in default thereof, to suffer six months R.I each, while rest of the three co-accused namely, Allau- ud-Din, Nehal-ud-Din and Amin-ud-Din were acquitted, extending them benefit of doubt. 12. On appeal, after re-appraisal of the evidence, a Division Bench of the Lahore High Court, Lahore confirmed the death sentence of appellants Ghulam Mohay-ud-Din @ Babu and Ahmad @ Muhammad Ahmad, along with the Murder Reference. However, death sentence awarded to Amanat Ali and Liaqat Ali was not confirmed, instead, Amanat Ali co-accused was sentenced to undergo 14 years R.I on two counts and to pay Diyat on two counts to the legal heirs of both the deceased, mentioned above. Whereas, Crl.As.No.413-414/2003 7 to the extent of Liaqat Ali convict, appeal was allowed and he was acquitted of the charge. 13. Feeling aggrieved from the judgment of the Lahore High Court, Lahore, appellants (i) Ghulam Mohay-ud-Din @ Babu (ii) Ahmad @ Muhammad Ahmad and (iii) Amanat Ali have questioned the legality of their conviction and sentences through Criminal Appeal No. 413 of 2003 with leave of the Court, while Criminal Appeal No.414 of 2003 has been filed by Haji Muhammad Sadiq, complainant, with leave of the Court, with the prayer to set aside the acquittal of Liaqat Ali, respondent No.1; to set aside the order of reduction of sentence of Amanat Ali, respondent No.2, from death to 14 years R.I and to pay Diyat to the legal heirs of the two deceased and to convert the same into death penalty on two counts, by restoring the judgment of the learned trial Judge. 14. We have heard the learned ASCs and the learned Additional Prosecutor General, Punjab and have gone through the judgment of the High Court and that of the trial Court as well as the evidence available on record. 15. After briefly arguing the case on merits, learned ASC for the appellants, Ghulam Mohay-ud-Din, etc., laid considerable stress on reduction of the death sentence, awarded to the two appellants on the following grounds:- (i) That the motive alleged/set up in the FIR was never established at any stage through any convincing and cogent evidence, which must serve as mitigating circumstance; Crl.As.No.413-414/2003 8 (ii) that the appellants were arrested on 02.09.1994 and were finally sentenced to death along with two co-accused by the learned trial Court vide judgment dated 30.06.1996 and for the last almost 18 years, they are lying in the Death-Cells; (iii) that once the motive part of the incident has disappeared/not proved, the possibility that the incident was the result of sudden flare-up, could not be excluded altogether from consideration; and (iv) that the implication of three co-accused in the crime was found to be false, both by the trial Court and the High Court, in addition to the 4th co- accused, who was acquitted at appeal stage, therefore, as was contended, the benefit of doubt shall go to the appellants, even in the matter of quantum of sentence. 16. The learned Additional Prosecutor General, Punjab was candid in conceding that the death sentence awarded to the two appellants was not warranted in law, keeping in view the facts and circumstances of the case, thus, he was of the view that the sentence is liable to be reduced. 17. On the other hand, learned ASC for the complainant/respondent [appellant in cross Criminal Appeal No.414/2003], however, vehemently contested the above arguments. He was of the view that once the guilt of the appellants has been established and believed by the trial Court as well as by the High Court, after proper appraisal and re-appraisal of the evidence, then there was no occasion or room, left out for the reduction of the two appellants’ sentence from death to life imprisonment. He further argued with vehemence that all the Crl.As.No.413-414/2003 9 accused had come to the spot duly armed with lethal weapons and jointly attacked the two deceased with common intention, causing both of them fatal injuries through daggers, hatchet and butcher knives, therefore, the case of one or other accused could not be sliced away, nor it can be distinguished on any factual and legal premises from that of the three appellants. Thus, he further contended that the acquittal of Liaqat Ali respondent and altering/reducing the sentence of Amanat Ali respondent from death to 14 years R.I. have got no sanction of law in view of the well settled principle that liability of each one of the accuse for the purpose of awarding sentences was one and the same, hence, the impugned judgment of the Lahore High Court is liable to be reversed to that extent, as in his view, the same suffers from patent error of law. 18. As the learned ASC has confined his submission to reduction of the sentence of the two appellants, on the grounds mentioned in the earlier part of this judgment, therefore, we have to determine this question of vital importance as on merits of the case, besides the conceding statement by him at the bar, we after careful re-appraisal of the evidence have no legitimate cause to take exception to the view held by the High Court. 19. Even in the un-amended provision of S.302 PPC, the punishment, provided for murder was death or imprisonment for life and the offender shall also be liable to fine. The change introduced by the law, commonly known as Qisas and Diyat Laws, amending S.302 PPC, the same has been divided into three parts i.e. (a), (b) Crl.As.No.413-414/2003 10 and (c). In clause (b) the Legislature in its wisdom has added qualified words to clause (b) of S.302 PPC, which reads as follows:- “(b) (shall be) punished with death or imprisonment for life as ta’zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in S.304 is not available;” After careful reading of the above penal clause of section 302, it becomes debatable as to whether the normal penalty is death for offence of murder and be given preference invariably or the sentence of death and the life imprisonment are two alternative sentences as provided in the amended clause (b) preceded by qualifying phrase “…..as ta’zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available”. This aspect of the matter has already been commented upon by this Court in the recent case of Hassan and others v. The State and others (PLD 2013 SC 793). 20. Albeit, in a chain of case law the view held is that normal penalty is death sentence for murder, however, once the Legislature has provided for awarding alternative sentence of life imprisonment, it would be difficult to hold that in all the cases of murder, the death penalty is a normal one and shall ordinarily be awarded. If the intent of the Legislature was to take away the discretion of the Court, then it would have omitted from clause (b) of section 302 PPC the alternative sentence of life imprisonment. In this view of the matter, we have no hesitation to hold that the two sentences are alternative to one another, however, awarding one or Crl.As.No.413-414/2003 11 the other sentence shall essentially depend upon the facts and circumstances of each case. There may be multiple factors to award the death sentence for the offence of murder and equal number of factors would be there not to award the same but instead a life imprisonment. It is a fundamental principle of Islamic Jurisprudence on criminal law to do justice with mercy, being the attribute of Allah Almighty but on the earth the same has been delegated and bestowed upon the Judges, administering justice in criminal cases, therefore, extra degree of care and caution is required to be observed by the Judges while determining the quantum of sentence, depending upon the facts and circumstances of particular case/cases. 21. A single mitigating circumstance, available in a particular case, would be sufficient to put on guard the Judge not to award the penalty of death but life imprisonment. No clear guideline, in this regard can be laid down because facts and circumstances of one case differ from the other, however, it becomes the essential obligation of the Judge in awarding one or the other sentence to apply his judicial mind with a deep thought to the facts of a particular case. If the Judge/Judges entertain some doubt, albeit not sufficient for acquittal, judicial caution must be exercised to award the alternative sentence of life imprisonment, lest an innocent person might not be sent to the gallows. So it is better to respect the human life, as far as possible, rather to put it at end, by assessing the evidence, facts and circumstances of a particular murder case, under which it was committed. Crl.As.No.413-414/2003 12 Albeit, there are multiple factors and redeeming circumstances, which may be quoted, where awarding of death penalty would be unwarranted and instead life imprisonment would be appropriate sentence but we would avoid to lay down specific guidelines because facts and circumstances of each case differ from one another and also the redeeming features, benefiting an accused person in the matter of reduced sentence would also differ from one another, therefore, we would deal with this matter in any other appropriate case, where, if proper assistance is given and extensive research is made. In any case, if a single doubt or ground is available, creating reasonable doubt in the mind of Court/Judge to award death penalty or life imprisonment, it would be sufficient circumstance to adopt alternative course by awarding life imprisonment instead of death sentence. 22. In the present case a specific motive was set up in the FIR at the time of reporting the crime by the complainant. He had alleged that there was a dispute between the parties over a ‘Khokha’ (wooden stall), however, no independent corroboratory evidence on this point was furnished. Thus, the version, repeating the same stance at the trial, without any independent corroboratory evidence in this respect, would have no legal worth and judicial efficacy. It has been claimed that the dispute had led to civil litigation over the ‘Khokha’ but no document from judicial record was furnished to the trial Court to show even to a little extent that indeed the dispute over a ‘Khokha’ was a burning issue between the Crl.As.No.413-414/2003 13 parties and they had already been battling for the same in the Civil Court. Thus, the motive part of the incident has remained absolutely unproved. 23. In the case of Mawaz Khan v. Ghulam Shabbir and the State (NLR 1995 Criminal 17), while determining the proper quantum of sentence, this Court in para-9 of the judgment held as follows:- “9. Adverting to the question of sentence raised by the learned counsel for Mawaz Khan, we find that Abdullah Khan (PW-9) and Muhammad Akhtar (PW-10) have deposed about the motive but they were not present when the incident of motive took place. The circumstance of chopping of nose and cutting the ear of the deceased will show that the act of the accused of killing the deceased was somewhat provoked. So the real motive for the crime remains shrouded in mystery. The question of benefit of reasonable doubt is necessarily to be determined not only while deciding the question of guilt of an accused person but also while considering the question of sentence, particularly in a murder case, because there is a wide difference between the two alternative sentences-death or imprisonment for life. Benefit of reasonable doubt in respect of the real cause of the occurrence was thus available to the accused. Needless to add that whenever the real cause of murder is shrouded in mystery, is unknown or is concealed, the Courts have normally awarded the lesser punishments under section 302, PPC as a matter of abundant caution. (Underlining is ours). In the present case too, the motive set up in the FIR was not of that degree and magnitude, if at all it did lay with the appellants, to take lives of two persons, more so, when the same has shrouded in mystery. Crl.As.No.413-414/2003 14 24. In the given circumstances, we are of the firm view that learned Courts below, particularly, the Lahore High Court did not adhere to this vital aspect of the case, rather the same went unnoticed, hence, the sentence of death awarded to the two appellants, mentioned above, was not warranted in law as the motive, beside being too feeble, has not been established. This fact certainly serves as a mitigating circumstance, where normal penalty of death was not to be awarded but proper legal sentence of life imprisonment was more appropriate, thus, omission on the part of the Lahore High Court and the trial Court has caused miscarriage of justice, therefore, the death sentence awarded to the two appellants, in our view, is not sustainable in the eyes of law. 25. Apart from the above, it is a matter of record that the two appellants have remained behind the bars as under-trial prisoners for about two years and they have also spent almost 16 years in Death-Cells of the prison in highly restless & painful condition and mental torture because the sword of death was hanging over their heads day and night during such a long period. On this account too, it is highly desirable and legally deemed appropriate to reduce their sentence from death to life imprisonment. 26. In the case of Dilawar Hussain v. The State (2013 SCMR 1582) similar view was held and even a Review Petition of the condemned prisoner was allowed on the ground that he had spent 18 years in the prison, both as an under-trial prisoner as well as after conviction when death sentence was awarded, which was even Crl.As.No.413-414/2003 15 upheld by this Court. The consideration, which prevailed with this Court by reducing the sentence, was almost the same as held above, albeit the scope of review before the Supreme Court is too narrow as compared to appeal filed with the leave of the Court. Majority view is in favour of reduction of sentence while in some rare cases contrary view has been taken by this Court and that too where cruelty or brutality was the attending element in committing the murder or where element of terrorism was visible or proved in perpetrating the crime. Thus, the view held in Dilawar Hussain’s case (ibid) being very close and nearer to judicial reasons, must prevail and shall hold the field, particularly in the circumstances of the present case. This Court in the case of Hassan and others v. The State and others (PLD 2013 SC 793) held somewhat similar view founded on the principle that when a convict sentenced to death, undergoes a period of custody equal to or more than a term of imprisonment for life during pendency of his legal remedy against his conviction and sentence of death, then keeping in view the principle of expectancy of life, it would be appropriate to reduce his sentence from death to life imprisonment. This view was based on the principle laid down in Dilawar Hussain’s case (supra). It was further held that S.302(b), PPC provides only two sentences, one death sentence and the other imprisonment for life for the offence of murder. Both the sentences are alternative to each other, therefore, to impose death or to maintain it, after the convict had undergone imprisonment for life or equal to it, would defeat the clear intent of the Legislature, as for one and the same crime the convict would suffer twin sentences i.e. Crl.As.No.413-414/2003 16 death and life imprisonment. Thus, considering the long detention of the convict as extenuating circumstance, the sentence of death was reduced to life imprisonment. It was further held that contrary view, expressed by a Bench of less numerical strength, albeit given later, shall not prevail but the larger Bench’s decision on this law point, given earlier, shall hold the field. 27. Although, no hard and fast rule can be laid down through a sweeping opinion however, it has been judicially noticed that in majority of cases, a tendency is gaining momentum on the part of the complainant party of implicating innocent person or innocents are implicated along with the real culprits by throwing the net wider to put the other side to maximum loss, pain and torture. Not only this but also the manner and mode of occurrence is exaggerated making it difficult for the court of law to reach at just and correct conclusion that who is guilty and who is innocent in a particular case. This phenomenon is consistently prevalent in certain parts of the country. The witnesses at the trial while under oath to tell the truth do not respect the oath so taken and repeat the same story, set up in the FIR or during the course of investigation. The declining credentials, values and virtues of the society in this regard is indeed a disturbing point for proper administration of justice by the Judges, as ordinarily they are confronted with such a complexed situation. It was in this backdrop that the theory of ‘sifting of grains from the chaff’ was introduced by the Judges to extend benefit to those about whom they were doubtful of being involved in the crime. This duty of the courts is becoming onerous day by day due to the above phenomenon. The Crl.As.No.413-414/2003 17 courts do not posses magical powers to transform the mindset of the society and to put them on the right path to tell the truth at all phases of criminal investigation, inquiry and trial, particularly in heinous crimes like murder. However, if a uniform yardstick is adopted by the courts discouraging such charge where innocent persons are involved or mixed up with the guilty one, it will soon bear the fruit and people would be made to re-think about their approach and mind set not to level false and exaggerated charge against innocent persons. In this backdrop, the obligation of the Judges while administering justice has become manifold because they are supposed not to let free those who are established guilty for a crime/crimes and to let free those whose involvement therein is not well established according to the well defined and well embedded standards of legal proof and per law of evidence. In this regard, this Court has since long laid down certain parameters and guiding principles, wherein in a given case, the witnesses are found to have falsely implicated one or the other accused, then they are ordinarily not to be relied upon with regard to the other co-accused, unless their testimony/evidence is amply corroborated through strong independent corroboratory evidence of unimpeachable nature qua the other co-accused. 28. Accordingly, for the reasons stated above, we partly allow Criminal Appeal No.413/2013 titled Ghulam Mohy-ud-Din v. the State and others, while maintaining conviction of appellants Ghulam Mohy-ud-Din @ Haji Babu and Ahmad @ Muhammad Ahmad under section 302(b) PPC, however, their Crl.As.No.413-414/2003 18 sentence/sentences of death are reduced to life imprisonment. They are also extended the benefit of section 382-B Cr.P.C. The said appeal is, however, dismissed to the extent of Amanat Ali appellant as having not been pressed. 29. So far as cross Criminal Appeal No.414/2003, filed by Haji Muhammad Sadiq (complainant) for the enhancement of sentence of Amanat Ali respondent No.2 therein is concerned, as on account of undergoing the sentence, he has been released from the prison and when we have already held in the preceding paragraph that appeal to the extent of his conviction and sentence has become infructuous, therefore, at this stage, we have no legitimate reason to enhance his sentence, as it will in no manner secure the ends of justice. Moreover, the Lahore High Court, Lahore, in the impugned judgment has given very sound, cogent and plausible reasons while awarding respondent Amanat Ali, the lessor sentence, distinguishing his role attributed to him in the crime, which is not open to exception on any legal and factual premises. 30. Similarly, the impugned judgment of the Lahore High Court, acquitting Liaqat Ali, respondent is upheld as in support of the acquittal judgment with his regard, sound, convincing and cogent reasons have been given, which are not open to exception, as he has been extended the benefit of doubt by way of abundant caution, not only because he surrendered to the police without any delay and at the very outset had pleaded innocence but also because no recovery of alleged crime weapon was effected from him and once he has earned the benefit of acquittal, after passing Crl.As.No.413-414/2003 19 of such a long time, is not liable to be sent back to prison after a period of 18 years has passed, as such a course would defeat the ends of justice. More over, he has not been attributed of causing fatal injuries to any one of the two deceased. As such, Criminal Appeal No.414/2003 is dismissed. 31. Accordingly, the above titled appeals are decided in the above terms. 32. The surety bonds, if any, executed by the private respondents namely Amanat Ali and Liaqat Ali as well as their sureties, have come to an end and they are discharged from such liability. Judge Judge Judge Islamabad, the 18th February, 2014 Nisar/* Approved For Reporting

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Umar Ata Bandial Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.416 of 2020 (Against the judgment dated 23.04.2015 of the Lahore High Court Bahawalpur Bench passed in Cr. Appeal No.125/2014) Ghulam Abbas …Appellant(s) Versus The State …Respondent(s) For the Appellant(s): Mr. Fakhar Hayat, ASC For the State: Mirza Abid Majeed, Deputy Prosecutor General Punjab Date of hearing: 18.10.2021. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Muhammad Ashraf (PW-2) was in the village mosque when on 3.8.2013 the appellant splashed acid on his body, as a result whereof, he sustained nine burn wounds on various part of his body; the latter was accompanied by a co-accused, seen by the complainant with muffled faces while leaving the mosque; he was later identified by the victim when he regained his senses. The co-accused was exonerated and the appellant alone contested indictment before the learned Judge Anti Terrorism Court Bahawalpur; the trial culminated into his conviction under section 336- B of the Pakistan Penal Code, 1860 read with section 7(c) of the Anti Terrorism Act, 1997 vide judgment dated 8.03.2014, upheld by a learned Division Bench of the Lahore High Court at Bahawalpur vide impugned judgment dated 23.04.2015, vires whereof, are being assailed through leave of the court dated 05.06.2020. It is argued that that as per prosecution’s own case lodged by no other than victim’s real brother two unknown assailants were seen leaving the mosque shortly after the occurrence and, thus, there was no occasion for the learned trial Court, in the absence of test identification parade, to return a guilty verdict, an error concurred by the High Court as well. In the absence of any motive, Criminal Appeal No. 416 of 2020 2 there was no earthly reason for the appellant to take alleged drastic step, that too, within the sanctity of place of worship, concluded the learned counsel. The learned Law Officer has defended the impugned judgment. 2. Heard. Record perused. 3. We are not impressed by the argument that muffled description narrated in the First Information Report in the absence of a test identification parade was fatal to the prosecution case. The occurrence took place inside the mosque and the victim while in the witness-box unhesitatingly pointed his finger on the culpability of the appellant. Extensive burn injuries with instant impact certainly debilitated the victim with suspended faculties; it is but obvious that he was not in a position to communicate with the complainant; absence of appellant’s name in itself amply demonstrates that no deliberations or consultations were recoursed to before registration of the case. Multiple burn injuries, extensive in nature, involving different parts of body rule out the possibility of an accident or self infliction. Victim survived the assault and, thus, was able to disclose assailant’s identity, a circumstance found by us as confidence inspiring and, thus, required no test identification parade, as he himself identified his tormentor. Motive is not a constituent of the crime and the complainant or victim could have trotted out thousand and one reasons but they preferred none. View concurrently taken by the learned trial Judge as well as the High Court on appellant’s culpability for having targeted the victim with acid is not open to any legitimate exception except that his conviction under section 7(c) of the Anti Terrorism Act, 1997, set aside accordingly. Appeal partly allowed. Judge Judge Judge Islamabad, the 18th October, 2021 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Maqbool Baqar Mr. Justice Mazhar Alam Khan Miankhel Criminal Appeal No. 429 of 2017 (Against the judgment dated 15.03.2016 passed by the High Court of Sindh at Karachi in Criminal Acquittal Appeal No. 30 of 2014) State through the Director, Directorate-General of Intelligence & Investigation, (Customs & Excise), Karachi …Appellant versus Haji Nabi Bux, etc. …Respondents For the appellant: Dr. Farhat Zafar, ASC Raja Abdul Ghafoor, AOR For respondent No. 1: Mr. Farhat Nawaz Lodhi, ASC On Court’s Notice: Syed Nayyab Hussain Gardezi, Deputy Attorney-General for Pakistan Date of hearing: 26.09.2018 JUDGMENT Asif Saeed Khan Khosa, J.: Criminal Miscellaneous Application No. 1559 of 2018 This miscellaneous application is allowed and the documents appended therewith are permitted to be brought on the record of the main appeal. Disposed of. Criminal Appeal No. 429 of 2017 2 Criminal Appeal No. 429 of 2017 2. Haji Nabi Bux and Abdullah respondents were booked in case FIR No. C.No.M1564/DCI/Seiz/2011 registered at the Directorate-General of Intelligence & Investigation, FBR, Regional Office, Karachi on 15.09.2011 and after a regular trial conducted by the learned Judge, Special Court-II (CNS), Karachi they were acquitted of the charge vide judgment dated 28.08.2013. The acquittal of the respondents was challenged before the High Court of Sindh at Karachi by the State through the Director, Directorate- General of Intelligence & Investigation (Customs & Excise), Karachi through Criminal Acquittal Appeal No. 30 of 2014 but the said appeal was dismissed by a learned Division Bench of the said Court through the impugned judgment passed by it on 15.03.2016. Hence, the present appeal by leave of this Court granted on 02.10.2017. 3. We have heard the learned counsel for the parties at some length and have gone through the relevant record of the case with their assistance. 4. The appeal filed by the appellant before the High Court had been dismissed on the ground that the same was not maintainable and for holding so the High Court had referred to the provisions of the Control of Narcotic Substances Act, 1997, the Customs Act, 1969 and the Code of Criminal Procedure, 1898. We have found that all the references in the impugned judgment to the provisions of the Customs Act and the Code of Criminal Procedure vis-à-vis the right of appeal and the process of filing an appeal were not strictly relevant to the controversy pertaining to maintainability of the appeal in the present case and all the precedent cases arising out of the said two enactments were also hardly relevant because a right of appeal in a case of recovery of narcotic substance is squarely governed by the provisions of section 48 of the Control of Narcotic Substances Act, 1997. Section 48 of the said Act caters for all kinds of challenges made to a judgment or order of a trial Criminal Appeal No. 429 of 2017 3 court through an appeal and unlike its counterparts in the Customs Act and the Code of Criminal Procedure no restriction has been placed therein as to which person or authority can file an appeal and this had been so clarified by this Court in the case of The State through Mehmood Ahmad Butt, Deputy Director, Regional Directorate, Anti-Narcotics Force, Lahore v. Mst. Fazeelat Bibi (PLD 2013 SC 361). It is not denied that the criminal case in hand was a State case, the State had prosecuted the respondents before the trial court and it was none other than the State itself which had filed an appeal before the High Court against acquittal of the respondents recorded by the trial court. Apart from that the FIR had been lodged in this case by the office of the Directorate- General of Intelligence & Investigation, FBR, Karachi which was the complainant in the case and the appeal filed by the State before the High Court was through such complainant. We find that the provisions of section 48 of the Control of Narcotic Substances Act, 1997 place no restriction on the State or the complainant vis- à-vis filing of an appeal before the High Court and this aspect of the matter had been clarified by this Court in the case of State through Director General, Anti-Narcotics Force v. Abdul Jabar alias Jubbara (2017 SCMR 1213). After going through the impugned judgment passed by the High Court we have found that it was totally unnecessary for the High Court to consider the provisions of the Customs Act or the Code of Criminal Procedure when the provisions of section 48 of the Control of Narcotic Substances Act, 1997 were very clear and were the only provisions governing the subject of appeal in such a case. The High Court would have done better by seeking guidance in that regard from the above mentioned judgments passed by this Court on the subject. 5. For what has been discussed above this appeal is allowed, the impugned judgment passed by the High Court of Sindh at Karachi on 15.03.2016 is set aside and the matter is remanded to the High Court with a direction to entertain the appellant’s appeal filed before it as having have been competently filed which appeal shall now be decided by the High Court on its merits. The bail Criminal Appeal No. 429 of 2017 4 bonds and sureties of the respondents, if any, shall stand discharged as far as this Court is concerned. Judge Judge Judge Islamabad 26.09.2018 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE QAZI FAEZ ISA MR. JUSTICE FAISAL ARAB Criminal Appeal No. 430 of 2011 (On appeal from the judgment dated 10.5.2011 passed by the Lahore High Court, Lahore, Multan Bench in Criminal Appeal No.66/08) Muhammad Ismail … Petitioner(s) VERSUS The State … Respondent(s) For the petitioner(s): Dr. Farhat Zafar, ASC For the State: Ch. Zubair Ahmed Farooq, Addl. P.G. Pb. Date of hearing: 30.1.2017 ORDER Dost Muhammad Khan, J.— Charged for the murder of his own brother Liaqat, the appellant, Muhammad Ismail, faced trial and at the conclusion of that, the learned Sessions Judge, Rajanpur, vide judgment dated 9.6.2005, upon conviction, sentenced the appellant to death u/s 302(b) PPC and also to pay Rs.50,000/- as compensation, to the legal heirs of the deceased u/s 544-A Crl.P.C. 2. The appellant challenged his conviction and sentence in Crl.A. No.66/08, while the Trial Court sent Murder Reference No.343/05 for confirmation of the sentence. Both were decided vide impugned judgment dated 10.5.2011, hence this appeal from Jail, with the leave of the Court dated 17.11.2011, to see whether there was any mitigating circumstance to consider the reduction of the sentence. Crl. Appeal No.430 of 2011 2 We have heard Dr. Farhat Zafar, learned ASC for the appellant, appointed on State expenses and Ch. Zubair Ahmed Farooq, learned Additional Prosecutor General, Punjab. 3. In brief, the prosecution case against the appellant is that, the complainant Mst. Bachi Mai, alongwith her deceased husband Liaqat, was present in their house when, the appellant alongwith acquitted co-accused (son) entered there and inflicted blows with hatchet on the head, beneath the armpit and ear of the deceased. The complainant raised hue and cries, which attracted Samar (PW-7) and Salam (not produced), who witnessed the crime. Motive for the crime was that, the appellant demanded the hand of the daughter of the deceased, namely, Mst. Ashraf, for his maternal uncle’s son, which was refused by the deceased. 4. When the formal charge was framed by the Trial Court, the appellant did not plead guilty to the same and claimed trial. During the trial, besides other PWs, the complainant Mst. Bachi Mai (PW-6) and Samar (PW-7) appeared. The crime report was made during the transit to the Police Station by the complainant, a common pattern of the Police, the Court has disapproved; anyhow, we have to see, as to whether the prosecution has been able to bring charge home to the appellant or not, and to what extent? 5. Although Mst. Bachi Mai (PW-6) has made some improvements at the trial but otherwise, she has given a straightforward statement, consistent with the facts on record and being the inmate of the same house, her entire testimony cannot be discarded for that reason alone. Crl. Appeal No.430 of 2011 3 6. So far as the testimony of Samar (PW-7) is concerned, we have some reservations about his witnessing the crime because he was attracted to the crime house on the outcry of the complainant. His house is at some distance and being a cultivator by profession, he was supposed to be present in his fields, otherwise too, he has given inconsistent statement. The appellant was living in the adjacent house to that of the deceased, the partition wall was of a little height. He scaled over the wall and in quick succession inflicted blows, which might have consumed hardly 3/4 minutes, at the most and if the two witnesses including Samar (PW-7) had reached there, they would have caught hold of the appellant but they did nothing and only witnessed the crime. The way and manners, this witness has painted the picture of the crime, bespeaks a lot that he was not at all the witness of the crime, however, the testimony given on oath by the complainant, the widow of the deceased, is so firm and reliable that it cannot be doubted in any manner, to the extent of witnessing the crime. 7. Both, the Trial Court and the learned Judges of the High Court, have heavily relied upon the so called confession of the appellant, which is not at all a confession under the law but an admission of guilt. Both the Courts conveniently ignored that the appellant, in the first instance, denied the formal charge and pleaded innocence, therefore, they should have probed into the mind of the appellant, as to what prompted him to make such an admission at a belated stage. We will discuss it in the latter part of the judgment. 8. The most striking feature in the case, is the motive part of the incident and to that extent, we have no hesitation to hold that Crl. Appeal No.430 of 2011 4 except the mere bald statement of the complainant, Mst. Bachi Mai (PW-6), no other evidence was furnished by the prosecution to establish the same, in a reasonable manner. In the statement of the appellant, recorded u/s 342 Cr.P.C., in reply to a question with regard to the motive, the appellant stated as follows:- “(Q-No.3). I do not want to discuss the motive.” 9. The reluctance of the appellant to disclose the true motive, indeed, was sufficient whispering into judicial mind, to be alerted. The appellant has shown allegorically his typical rustic character of dignity, not to go for washing a dirty linen in public, at the cost of his own life. The appellant has apparently muffled, what was probably going seriously wrong in the family of the deceased, having a young virgin daughter of vulnerable age and the complainant, his wife too, was of the age of 28. Probably the appellant decided to withhold the true motive for the sake of family honour, a typical characteristic of dignity and virtues, still possessed by the rustic countrymen of our rural society. It was for the judicial mind to have correctly perceived what was not expressly conveyed to it, but much was silently hinted upon. These hints convey a bulk of pains, the appellant had absorbed in the past. When this agony became unbearable to sustain, sufficient to cause extreme annoyance to the appellant where, human blood starts boiling, and the sentiments of anger fly so high, leaving little to re- take its seat. The legitimate inference thus, would be that some detestable affairs in the family of the deceased were prevailing, rendering the appellant unable to bear the stigma/blot on the escutcheon (family honour). The rustic and conservative mind, a Crl. Appeal No.430 of 2011 5 distinct feature of our rural society, is always susceptible to drive away a person to a point, retrieval wherefrom, becomes impossible. Unfortunately, the learned Judges of the High Court and the Trial Court, both, could not read between the lines, the silent message conveyed to them, was conveniently ignored. In the case of Syed Ali Beopari v. Nibaran Mollah and others (PLD 1962 SC 502) the learned Courts below were under legal obligation by acting on the third probable theory as has been firmly held in the case of Zahid Parvez v. The State (PLD 1991 SC 558). 10. The above conceivable inference apart, once the prosecution sets up a particular motive but fails to prove the same, then, ordinarily capital sentence of death is not awarded, which is a consistent view of the Courts since long. Probably, it was in the backdrop of the real motive, not disclosed clearly by the appellant and the prosecution both that, father of the appellant, namely, Allah Wasaya, aged 70 years recorded his statement on 26.5.2005, in the Trial Court stating on oath that he had waived off his right of Qisas and Diyat both. The Courts below rightly held that this singular statement of the father was not sufficient for acquittal of the appellant but conveniently ignored that the same was certainly having bearings on the quantum of sentence. 11. There is a considerable different between confession and admission. The former is regulated by Articles 42 and 43 in particular, of Qanun-e-Shahadat Order, 1984. The Trial Court recorded the statement of the appellant on oath u/s 340(2) Cr.P.C. and he re-affirmed his admission made in his Crl. Appeal No.430 of 2011 6 statement u/s 342 Cr.P.C. about his guilt, although he never opted for to record such statement. The two learned Courts below also could not perceive the correct legal position that, confession of accused as they have held it to be, if is recorded on oath, becomes absolutely inadmissible in evidence and for this reason alone, the same can be discarded. For recording of confession, whether by a Magistrate or the Trial Court, the procedure laid down under the High Court Rules and Orders and the safeguards provided u/s 364 Cr.P.C. have to be essentially followed. 12. True, that u/s 265-E Cr.P.C the Trial Court in a session case, has a discretion to record the plea of the accused and if he pleads guilty to the charge, it may convict him in its discretion. Nevertheless, it is also provided in S.265-F Cr.P.C. that if the Trial Court does not convict him on his plea of guilt, it shall proceed to hear the complainant (if any) and take all such evidence as may be produced in support of the prosecution. This discretion is to be exercised with extra care and caution, and ordinarily on such admission, awarding capital sentence of death shall be avoided and to prove the guilt of an accused, evidence of the complainant or the prosecution has to be recorded, in the interest of safe administration of justice. The most important factors and required standards of confession may be cited below:- “It should be ensured, Crl. Appeal No.430 of 2011 7 (i) that the accused is in full senses and understands the consequences of making a confession; (ii) that, the confession was not a result of any duress, coercion or any promise by the prosecution, to be made an approver; (iii) that, during transit of the accused by the police from and to the Trial Court from the prison, on each “Paishi” no threat or pressure was applied by the escorting police guard or incharge thereof; (iv) what were the actual facts, which induced the accused to confess after facing trial, during which he pleaded innocence all the way; (v) the court recording the confession has to ensure that the mental capacity of the accused is not diminished due to any illness and if some indication of abnormality is suspected by the Court, it is better to refer the accused to the Standing Medical Board to ascertain the true cause thereof; (vi) While recording the confession, the same safeguards and precautions be adopted, by directing the Public Prosecutor, the complainant’s counsel, the Naib Court and all other officials to leave the Court. If need be, the counsel who represents him, may be given an opportunity to be present inside the Court during the whole process, if the accused person, on asking by the Trial Judge, so demands; (vii) the handcuffs of the accused be removed and he be provided a chair on the dais. He may be given some time to think over the making of the confession and in that regard particular questions be put to him, as to why he was making the confession when he has already pleaded innocence and claimed trial at the time, the formal charge was framed; (viii) the Trial Judge shall explain to the accused that, in case of making confession, he has to face a capital sentence in a murder case or any offence punishable with death; (ix) the entire record of all the questions and answers recorded, be properly maintained and thereafter, a proper certificate be appended thereto, showing the satisfaction of the Trial Judge that the accused person was not mentally sick and he was making the confession voluntarily, based on true facts and that, there was no other compelling reason behind that. Crl. Appeal No.430 of 2011 8 As the above procedure was not adopted, therefore, it was incorrectly construed by the Courts below as confession of the accused. Under the law, it may be treated as an admission of the appellant, however, on the basis of admission alone, accused person cannot be awarded a capital punishment because admission, as has been defined by Article 30 of the Qanun-e-Shahadat Order, 1984, is only a relevant fact and not a proof by itself, as has been envisaged in Article 43 of the Order, 1984, where a proved, voluntary and true confession alone is held to be a proof against the maker therefore, both the Courts below have fallen in error by treating this halfway admission to be a confession of guilt on the part of the appellant. 13. It is a bedrock principle of law that, once a Statute or rule directs that a particular act must be performed and shall be construed in a particular way then, acting contrary to that is impliedly prohibited. That means, doing of something contrary to the requirements of law and rules, is impliedly prohibited. Therefore, it is held that the admission of the appellant cannot be a substitute for a true and voluntary confession, recorded after adopting a due process of law and it cannot be made the sole basis of conviction on a capital charge. 14. At the same time, we are not supposed to make a departure from the principle of law, consistently laid down that testimony of a solitary witness, if rings true, found reliable and is also corroborated by some other evidence as well then, it can be made basis for conviction on capital charge. As has been discussed above that, Mst. Bachi Mai (PW-6) was the inmate of the same house, being the widow of the deceased, her presence at the fateful time, cannot be Crl. Appeal No.430 of 2011 9 doubted on any premises whatsoever. Thus, her testimony is sufficient for conviction of the appellant because the same is supported by the recovery of the crime weapons on the spot, stained with the human blood; besides, the medical evidence provides ample support to the same. 15. Judged and considered from all angles, we are of the considered view that on the basis of evidence, recorded at the trial, the appellant was rightly convicted u/s 302(b) PPC however, his capital sentence of death awarded, was not justified in law in view of the peculiar facts and circumstances of the case. These are the detailed reasons for our short order of even date, which is reproduced as under:- “For the reasons to be recorded later, this appeal is partly allowed. The conviction of the appellant u/s 302 PPC is maintained, however, his death sentence is reduced to life imprisonment with benefit of S.382-B Cr.P.C. along with compensation awarded by the Trial Court and in default thereof he shall further undergo six months S.I.” Judge Judge Judge Islamabad, the 30th January, 2017 Nisar /- Approved For Reporting.

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Dost Muhammad Khan Mr. Justice Sajjad Ali Shah Criminal Appeals No. 430 to 432, 442, 446, 447 and 495 of 2017 (Against the orders dated 26.01.2016. 29.01.2016 & 03.02.2016 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Appeals No. 523, 438, 439, 494, 520, 440 and 437 of 2015) The State through Prosecutor-General, Punjab (in all cases) …Appellant versus Jahangir Akhtar (in Cr. A. 430 of 2017) Muhammad Dilpazeer (in Cr. A. 431 of 2017) Muhammad Ayub (in Cr. A. 432 of 2017) Majid Ali (in Cr. A. 442 of 2017) Ghalib Hussain (in Cr. A. 446 of 2017) Bunyad Hussain (in Cr. A. 447 of 2017) Arshad Mehmood (in Cr. A. 495 of 2017) …Respondents For the appellant: Mr. Muhammad Jaffar, Deputy Prosecutor-General, Punjab (in all cases) For the respondents: Mr. Tanvir Iqbal, ASC Syed Rifaqat Hussain Shah, AOR (in all cases) Date of hearing: 17.01.2018 JUDGMENT Asif Saeed Khan Khosa, J.: The respondents in these appeals had allegedly obtained employment in the police department on the basis of fake and forged School Leaving Criminal Appeals No. 430 to 432, 442, 446, 447 and 495 of 2017 2 Certificates and upon discovery of such forgery and fabrication they were not only compulsorily retired from service but were also proceeded against on the criminal side through registration of different FIRs. The respondents applied before the trial court under section 249-A, Cr.P.C. seeking their premature acquittal and the trial court acquitted them of the charge upon acceptance of such applications which orders of the trial court were subsequently upheld by the High Court through dismissal of different appeals filed by the State against the respondents’ acquittal. Hence, the present appeals by leave of this Court granted on different dates. 2. The impugned orders passed by the trial court in the respondents’ cases show that the trial court was labouring under a misconception that on account of compulsory retirement of the respondents from service they could not be criminally prosecuted for the same matter as such prosecution was to amount to double jeopardy attracting the provision of Article 13(a) of the Constitution of the Islamic Republic of Pakistan, 1973 and section 403, Cr.P.C. and even the High Court had agreed with the said opinion. It had not been appreciated by the courts below that disciplinary action taken by a department and criminal prosecution are quite distinct from each other and can proceed simultaneously or one after the other and such separate actions do not attract the principle of double jeopardy. It has already been clarified by this Court in many a precedent case that disciplinary proceedings are meant solely for maintaining and ensuring purity of service whereas criminal prosecution is meant to punish a person for the offence committed by him and that in a proper case departmental and criminal proceedings can proceed simultaneously or one after the other. A reference in this respect may be made to the cases of M/s Hindustan Tin Works Pvt. Ltd., v. The Employees of M/s. Hindustan Tin Works Pvt. Ltd. And others (AIR 1979 SC 75), Muhammad Sardar Khan v. Senior Member (Establishment), Board of Revenue, Punjab, Lahore (1985 SCMR 1062), The Deputy Inspector-General of Police, Lahore and others v. Anis-ur-Rehman Khan (PLD 1985 SC 134), Abdul Sattar v. Government of the Punjab through Additional Criminal Appeals No. 430 to 432, 442, 446, 447 and 495 of 2017 3 Inspector-General of Police, Lahore and others (1987 SCMR 745), Muhammad Ayub v. The Chairman, Electricity Board, WAPDA, Peshawar and another (PLD 1987 SC 195), The Superintendent of Police, Faisalabad and others v. Muhammad Iqbal (1988 SCMR 1792), Ghulam Ghaus v. The Chief Engineer, WAPDA, Faisalabad Region, Faisalabad and another (1989 SCMR 1139), Abdul Rehman v. The Chief Engineer, Sargodha Electricity, Sargodha and others (1989 SCMR 1178), Mian Bashir Ahmed v. Board of Revenue, Punjab (1989 SCMR 1427), Muhammad Tufail v. Assistant Commissioner/Collector (1989 SCMR 316), Amir Abdullah v. Superintendent of Police, and others (1989 SCMR 333), Muhammad Sarwar v. Assistant Commissioner/Collector, Tehsil Ferozewala and 3 others (NLR 1989 Service 81), Muhammad Rafiq v. Province of the Punjab and another (1990 SCMR 1143), Dawood Ali v. Superintendent of Police and others (2005 SCMR 948), Syed Aqleem Abbas Jafari v. Province of Punjab through Secretary, Irrigation Department and others (2005 SCMR 1901), Nazir Ahmed v. Capital City Police Officer, Lahore and another (2011 SCMR 484) and Muhammad Iqbal v. District Police Officer, Sahiwal and another (2011 SCMR 534). We have further observed that the provisions of section 249-A, Cr.P.C. could have been invoked only where the charge was groundless or there was no probability of conviction of the accused person and none of those factors were attended to by the courts below in these cases while acquitting the respondents or upholding their acquittal. 3. For what has been discussed above all these appeals are allowed, the impugned orders passed by both the courts below are set aside, the status of the respondents as accused persons in the relevant criminal cases is restored and the trial court is directed to proceed with their trials in accordance with the law. It may be clarified that if the respondents were on bail at the time of their acquittal then they shall submit fresh bail bonds before the trial court and if they were not on bail at the time of their acquittal then they shall be arrested and shall be dealt with in accordance with Criminal Appeals No. 430 to 432, 442, 446, 447 and 495 of 2017 4 the law. The bail bonds and sureties of the respondents furnished in connection with the present appeals shall stand discharged. Judge Judge Judge Islamabad 17.01.2018 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Maqbool Baqar Mr. Justice Mazhar Alam Khan Miankhel Criminal Appeal No. 436 of 2017 (Against the judgment dated 03.04.2010 passed by the Lahore High Court, Bahawalpur Bench, Bahawalpur in Criminal Appeal No. 294-J of 2010 and Murder Reference No. 29 of 2010) Muhammad Qasim …Appellant versus The State …Respondent For the appellant: Mr. Ansar Nawaz Mirza, ASC For the State: Mr. Muhammad Jaffar, Deputy Prosecutor-General, Punjab Date of hearing: 27.09.2018 JUDGMENT Asif Saeed Khan Khosa, J.: Muhammad Qasim appellant and another had allegedly murdered two persons namely Meer Muhammad and Mst. Qaim Khatoon, a sister-in-law of the appellant, at about 06.00 P.M. on 27.07.2008 in an open filed in village Bakhsanabad in the area of Police Station Bhong, District Rahim Yar Khan in the backdrop of a motive based upon a suspicion of illicit relations between the two deceased. With the said allegations the appellant and his co-accused were booked in case FIR No. 118 registered at the above mentioned Police Station during the same evening and after a regular trial the appellant’s co-accused was acquitted by the trial court whereas the appellant Criminal Appeal No. 436 of 2017 2 was convicted on two counts of an offence under section 302(b), PPC and was sentenced to death on each count and to pay compensation. The appellant challenged his convictions and sentences before the High Court through an appeal which was dismissed to the extent of his convictions on both the counts of the charge under section 302(b), PPC but the same was partly allowed to the extent of his sentences of death which were reduced by the High Court to imprisonment for life on each count. Hence, the present appeal by leave of this Court granted on 18.09.2017. 2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise. 3. The case in hand is a case of double murder committed in broad daylight and an FIR in respect of the same had been lodged with sufficient promptitude wherein the appellant had been nominated as the principal perpetrator of the murders in issue. The ocular account of the alleged occurrence had been furnished before the trial court by Naseer Ahmed complainant (PW1) and Nazir Ahmed (PW2) who were both sons of Meer Muhammad deceased. The said eyewitnesses had advanced a reasonable explanation for their presence at the place of occurrence at the relevant time and had made consistent statements before the trial court which statements had inspired confidence of both the courts below. In the circumstances of the case it was unlikely for the said sons of the deceased to substitute their father’s killer. The medical evidence had provided sufficient support to the ocular account furnished by the above mentioned eyewitnesses. The motive set up by the prosecution was based upon a suspicion of illicit relations between the two deceased and that backdrop had been admitted by the appellant also through his statement recorded under section 342, Cr.P.C. During the investigation four crime-empties had been secured from the place of occurrence which had subsequently been found to be wedded with a pistol recovered from the appellant’s custody. In his statement recorded under section Criminal Appeal No. 436 of 2017 3 342, Cr.P.C. the appellant had admitted killing both the deceased and had maintained that he had committed the said murders under the impulse of grave and sudden provocation and on account of Ghairat after finding the two deceased in a compromising position in the relevant field. The circumstances of this case go a long way in supporting the said stance of the appellant inasmuch as according to the FIR as well as the statements of the eyewitnesses produced by the prosecution there was an on-going suspicion regarding illicit relations between the two deceased; the place of occurrence was a field belonging to the appellant’s family; and there was no habitat situated anywhere close to the said field. It was alleged by the prosecution that at the relevant time Mst. Qaim Khatoon deceased had been dragged to the place of occurrence so as to give the incident a colour of the two deceased having been found in a compromising position but the circumstances of the case did not support that theory. It has already been mentioned above that according to the site-plan of the place of occurrence there was no habitat situated anywhere close to the place of occurrence and no dragging marks either on the ground or on the body of the said deceased had been found during the post-mortem examination. The High Court had noticed in the impugned judgment passed by it that the parents of the female deceased had not pursued the case against the present appellant which hinted at a possibility of the appellant’s version being true. The High Court had further observed that there was no conventional enmity between the parties and, thus, the only reason why the appellant could have committed the murders in issue was nothing but his having seen the two deceased together in an amorous pursuit. 4. The discussion made above leads us to an inescapable conclusion that the case in hand was indeed a case of grave and sudden provocation which could possibly attract the provisions of section 302(c), PPC as declared by this Court in the case of Zahid Rehman v. The State (PLD 2015 SC 77). The leaned Deputy Prosecutor-General, Punjab appearing for the State has, however, Criminal Appeal No. 436 of 2017 4 pointed out that in terms of the first proviso to section 302(c), PPC the case in hand was a case of murders committed in the name or on the pretext of honour and, thus, it was to be treated as a case attracting the provisions of sections 302(a) or 302(b), PPC and not those of section 302(c), PPC. We have attended to this aspect of the matter with care and have found that the words “in the name or on the pretext of honour” used in the first proviso to section 302(c), PPC are not without any significance or meaning. The said words indicate that a murder committed “in the name or on the pretext of honour” has to be a calculated murder committed with premeditation in the background of honour whereas the words used in the context of grave and sudden provocation in Exception 1 to the erstwhile section 300, PPC were “deprived of the power of self-control”. Such words used in Exception 1 to the erstwhile section 300, PPC catered for a situation which was not premeditated and had developed suddenly leading to grave provocation depriving a person of the power of self-control. Such different phraseology used by the legislature in these distinct provisions clearly indicates catering for different situations and, therefore, the words “in the name or on the pretext of honour” ought not to be mixed or confused with grave and sudden provocation leading to depriving of the power of self-control. This distinction between honour and grave and sudden provocation was clearly recognized by this Court in the case of Muhammad Ameer v. The State (PLD 2006 SC 283) and the same is manifestly attracted to the facts of the present case as well. It has already been found by us above that the case in hand was a case of grave and sudden provocation and honour only provided a backdrop to the same. 5. For what has been discussed above this appeal is partly allowed, the convictions and sentences of the appellant are set aside and they are substituted by his conviction on two counts of an offence under section 302(c), PPC with a sentence of rigorous imprisonment for twenty (20) years on each count and to pay a sum of Rs. 1,00,000/- (Rupees one hundred thousand only) to the heirs of each deceased by way of compensation under section Criminal Appeal No. 436 of 2017 5 544-A, Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months on each count. The sentences of imprisonment passed against the appellant shall run concurrently to each other and the benefit under section 382-B, Cr.P.C. shall be extended to him. This appeal is disposed of in these terms. Judge Judge Judge Islamabad 27.09.2018 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE SARDAR TARIQ MASOOD MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE JAMAL KHAN MANDOKHAIL CRIMINAL APPEAL NO. 437 OF 2020 (On appeal against the judgment dated 18.12.2017 passed by the Lahore High Court, Lahore in Criminal Appeal No. 698/2015) Khalid Mehmood @ Khaloo … Appellant Versus The State …Respondent(s) For the Appellant: Mr. Agha Muhammad Ali Khan, ASC Mr. Muhammad Sharif Janjua, AOR For the State: Mirza Abid Majeed, DPG Date of Hearing: 10.02.2022 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Appellant was proceeded against in terms of the case registered vide FIR No. 74 dated 21.02.1995 under Sections 302/34 PPC at Police Station Kot Momin, Sargodha for committing murder of Haji Mehmand father of the complainant. The learned Trial Court vide its judgment dated 02.04.2015 convicted the appellant under Section 302(b) PPC and sentenced him to imprisonment for life. He was also directed to pay compensation amounting to Rs.100,000/- to the legal heirs of the deceased or in default whereof to further undergo six months SI. Benefit of Section 382-B Cr.P.C. was also extended to him. In appeal the learned High Court maintained the conviction and sentences recorded by the learned Trial Court. 2. The prosecution story as given in the impugned judgment reads as under:- “2. Succinctly stated the facts of the prosecution case as it gleans from the FIR are to the effect that on 21.02.1995 at about 12.30 noon Haji Mehmand Criminal Appeal No. 437/2020 -: 2 :- (deceased) was taken to Chenab Bazar Kot Momin by his son Muhammad Anwar complainant for obtaining the medicine as he was ill; that Muhammad Ansar accused (since PO) and Khalid Mehmood alias Khaloo (appellant) arrived there while armed with revolvers; that Ansar (PO) made a fire shot with his revolver which hit on the left flank of Haji Mehmand, whereas fire shot made by Khalid Mehmood alias Khaloo (appellant) landed on the right side of abdomen of Haji Mehmand; that apart from Muhammad Anwar complainant the occurrence was also witnessed by Mukhtar Ahmad (W- 5) and Zulfiqar PW; that they all raised hue and cry whereupon both the accused succeeded to flee away from the spot; that Haji Mehmand was shifted to Civil Hospital, Kot Momin from where he was shifted to Civil Hospital, Sargodha; that both the accused committed the murder of deceased on the abetment of Liaqat, Rafaqat and Bati (acquitted during the earlier trial).” 3. After completion of the investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. The prosecution in order to prove its case produced 8 witnesses. The testimonies of two PWs, who were examined in the earlier trial of co- accused of the appellant, had also been relied upon during trial. In his statement recorded under Section 342 Cr.P.C the appellant pleaded his innocence and refuted all the allegations leveled against him. However, he did not opt to appear under Section 340(2) Cr.P.C. to lead defence evidence. 4. Learned counsel for the appellant contended that the appellant has been convicted on the solitary statement of Mukhtar Ahmad (PW-5), which is not confidence inspiring. Contends that the learned Trial Court while convicting the appellant had relied upon the testimonies of PW-2 and PW-3 of the previous trial of the co- accused, which included the postmortem report and the statement of the doctor recorded in the previous trial but the same was never exhibited in the current trial, therefore, it could not have been made basis by the learned Trial Court to convict the appellant. Lastly contends that mere the absconsion of the appellant cannot be made basis to convict him and the prosecution has to prove its case independently, which has not been done, therefore, the appellant deserves to be acquitted of the charge. Criminal Appeal No. 437/2020 -: 3 :- 5. On the other hand, learned Law Officer has defended the impugned judgment. He contended that the appellant has committed murder of an innocent person and his long absconsion clearly reflects that he has committed the crime, therefore, he does not deserve any leniency by this Court. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. Perusal of the record reveals that the appellant along with four other co-accused was booked in the instant case for committing murder of father of the complainant. Co-accused namely Ansar absconded and is still at large. The appellant along with three co-accused namely Liaqat, Rafaqat and Bati was being tried when he ran away on 21.12.1998 by breaking the chain whereas the three co-accused were ultimately tried and acquitted of the charge by a separate judgment. After his arrest on 18.08.2013, the trial to appellant’s extent again started. The occurrence which took place on 21.02.1995 was witnessed by Muhammad Anwar complainant, Zulfiqar Ali and Mukhtar Ahmed (PW-5). However, only Mukhtar Ahmed (PW-5) appeared in the witness box in the current round as the remaining two witnesses died during the absconsion period of the appellant. Although the statements of both the witnesses namely Muhammad Anwar and Zulfiqar Ali were admissible in evidence under Article 46 of the Qanun-e-Shahadat Order, 1984 but this aspect has not been taken into consideration and relied upon by the learned courts below, which omission cannot be resolved at this stage as the matter arises out of the FIR No. 74 dated 21.02.1995, therefore, any order passed by this Court would not be in the interest of safe administration of criminal justice. So, this is the case of solitary statement. There is no cavil with the proposition that conviction can be made on the basis of solitary statement of an eye- witness but there are certain aspects of the matter, which need to be looked at. It is admitted position that the learned Trial Court while convicting the appellant had relied upon the medical evidence comprising the postmortem report and the statement of the doctor in the earlier trial of the three co-accused of the appellant but the same Criminal Appeal No. 437/2020 -: 4 :- was never exhibited during the current trial of the appellant. This Court in the case of Nur Elahi Vs. Ikram ul Haq and State (PLD 1966 SC 708) has categorically held that “witnesses should be examined only once and their statements read out as evidence in the other case is not supportable in law”. It was further held that “every criminal proceeding is to be decided on the material on record of that proceeding and neither the record of another case nor any finding recorded therein should affect the decision and if the court takes into consideration evidence recorded in another case or a finding recorded therein the judgment is vitiated.” The judgment in Nur Elahi supra case was further reiterated by this Court in Muhammad Sarwar Vs. Khushi Muhammad (2008 SCMR 350) wherein it has been held that “the evidence recorded in one case may not hold good for the other case.” In view of the law laid down by this Court, it can safely be said that the learned Trial Court could not have relied upon the medical evidence that was brought on record in the earlier trial of the three co-accused of the appellant. So far as the recovery of revolver recovered from the possession of the appellant is concerned, the same has no impact on the instant case as no empty was recovered from the place of occurrence. In these circumstances, a dent in the prosecution’s case has been created, benefit of which must be given to the appellant. It is a settled law that single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right. The conviction must be based on unimpeachable, trustworthy and reliable evidence. Any doubt arising in prosecution’s case is to be resolved in favour of the accused and burden of proof is always on prosecution to prove its case beyond reasonable shadow of doubt. However, as discussed above, in the present case the prosecution has failed to prove its case beyond any reasonable shadow of doubt. So far as the argument of the learned Law Officer about the absconsion of the appellant is concerned, it is settled law that absconsion cannot be viewed as a proof for the crime and only on this basis an accused cannot be convicted and it is the prosecution who has to prove its case independently without any reasonable shadow of doubt. Criminal Appeal No. 437/2020 -: 5 :- 7. For what has been discussed above, this appeal is allowed and the impugned judgment is set aside. Appellant is acquitted of the charge. He shall be released from jail forthwith unless detained in any other case. JUDGE JUDGE JUDGE Islamabad, the 10th of February, 2022 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE YAHYA AFRIDI MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE MUHAMMAD ALI MAZHAR CRIMINAL APPEAL NO. 446 OF 2020 (On appeal against the judgment dated 20.12.2016 passed by the Lahore High Court, Lahore in Murder Reference No. 201/2013 and Criminal Appeal No. 789/2013) Abdul Wahid …Appellant(s) VERSUS The State …Respondent(s) For the Appellant(s): Mr. Sagheer Ahmed Qadri, ASC For the State: Mr. Irfan Zia, DPG For the Complainant: Nemo Date of Hearing: 06.06.2023 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Appellant Abdul Wahid was tried by the learned Additional Sessions Judge, Lahore pursuant to a case registered vide FIR No. 78/2010 dated 14.03.2010 under Section 302 PPC at Police Station Muslim Town, District Lahore for committing murder of Muhammad Yousaf, son of the complainant. The learned Trial Court vide its judgment dated 04.06.2013 convicted the appellant under Section 302(b) PPC and sentenced him to death. He was also directed to pay compensation amounting to Rs.200,000/- to the legal heirs the deceased. In case of non- payment of the compensation, the amount was ordered to be realized as arrears of land revenue. In case of non-payment or non-realization as aforesaid, the appellant was directed to further undergo six months SI. In appeal the learned High Court while maintaining the conviction of the appellant, altered the sentence of death into imprisonment for life. The Criminal Appeal No. 446/2020 -: 2 :- amount of compensation and the sentence in default whereof was maintained. Benefit of Section 382-B Cr.P.C. was also extended in his favour. 2. The prosecution story as given in the impugned judgment reads as under:- “2. Prosecution story, as set out in the FIR (EX.PG) registered on the statement (Ex.PA) of Ghulam Mustafa, complainant (PW.1) is that he was resident of Mauza Khairpur Tehsil and District Nankana Sahib. Muhammad Yousaf son of complainant was driver of wagon No.1327/K plied on Peshawar Route No.131. On the night of occurrence i.e. 13.03.2010 the complainant came to Lahore to see his son and was going to Chung Multan Road Hanjarwal while riding on the wagon of his son. Usman grandson (pota) of complainant aged about 12 years was conductor of the wagon. Wahid (appellant) who was employee of Bigman Security Services (Pvt.) Ltd. boarded on the wagon as he oftenly used to travel in the wagon. Grandson of the complainant demanded fare from the appellant, whereupon a quarrel took place as he (appellant) refused to pay the same. When the wagon stopped in front of Postal Colony Wahdat Road at about 10.45 p.m. Muhammad Yousaf leaving the driving seat came behind and told the appellant not to quarrel with the child and pay the fare of Rs.10/-, upon which Wahid Shah (appellant) Security Guard flared up and fired with his pump action gun which landed on the chest of Muhammad Yousaf who became unconscious, smeared with blood. Wahid Shah (appellant) Security Guard decamped from the spot. The occurrence was witnessed by Khalid Hussain and Muhammad Ashraf Qadri along with other passengers. Meanwhile 1122 vehicle arrived and took Muhammad Yousaf to Jinnah Hospital.” 3. After completion of the investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. The prosecution in order to prove its case produced ten witnesses. In his statement recorded under Section 342 Cr.P.C, the appellant pleaded his innocence and refuted all the allegations leveled against him. However, he did not appear as his own witness on oath as provided under Section 340(2) Cr.P.C. in disproof of the allegations leveled against him. He also did not produce any evidence in his defence. 4. At the very outset, learned counsel for the appellant contends that there are glaring contradictions and dishonest improvements in the statements of the eye-witnesses, which have escaped the notice of the learned courts below. Contends that the medical evidence contradicts the ocular account. Contends that the prosecution has not been able to prove Criminal Appeal No. 446/2020 -: 3 :- motive as alleged, which causes serious dent in the prosecution case. Contends that the reasons given by the learned High Court to sustain conviction of the appellant are speculative and artificial in nature, therefore, the impugned judgment may be set at naught. In the alternative, learned counsel contended that the occurrence took place at the spur of the moment, therefore, the conviction of the appellant may be converted into Section 302(c) PPC and his sentence may be reduced. 5. On the other hand, learned Law Officer assisted by the complainant in person submitted that to sustain conviction of an accused, un-rebutted ocular evidence alone is sufficient. Contends that the ocular account is supported by the medical evidence, therefore, the appellant does not deserve any leniency by this Court. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. 7. The unfortunate incident took place on 13.03.2010 at 10:45 pm whereas the crime report was lodged after one hour and fifty five minutes. Keeping in view the fact that the deceased was firstly taken to hospital, which was situated at a distance of more than five kilometers from the place of occurrence where he succumbed to the injuries and the matter was reported from the hospital, it would be considered a promptly lodged FIR. Promptness of FIR prima facie shows truthfulness of the prosecution case and it excludes possibility of deliberation and consultation. There was hardly any time with the complainant or other witnesses to fabricate a false story. The appellant is a single accused. He used to travel in the wagon of deceased for going to his work place and back, therefore, he was known to Muhammad Usman (PW- 2), being conductor of the wagon and son of the deceased, as such, there is no chance of misidentification. The ocular account in this case has been furnished by Ghulam Mustafa, complainant (PW-1) and Muhammad Usman (PW-2). Although Ghulam Mustafa, complainant (PW-1) was resident of Nankana sahib but he has reasonably explained his presence at the place of occurrence at the relevant time. He had come to meet his son on that day Criminal Appeal No. 446/2020 -: 4 :- and was going in his wagon. It is not strange for a father to visit his son nor can any restriction be imposed in this regard. Muhammad Usman (PW-2) was son of the deceased and was conductor of the said wagon, therefore, his presence was also not unnatural. These prosecution witnesses were subjected to lengthy cross-examination by the defence but nothing favourable to the appellant or adverse to the prosecution could be produced on record. These witnesses have given all necessary details of occurrence qua the date, time, place, name of accused, name of witnesses, manner of occurrence, kind of weapon used in the occurrence, the locale of injuries and the motive of occurrence. These PWs remained consistent on each and every material point inasmuch as they made deposition exactly according to the circumstances happened in this case, therefore, it can safely be concluded that the ocular account furnished by the prosecution is reliable, straightforward and confidence inspiring. They had no enmity or ill-will against the appellant to falsely involve him in the case. It is now well settled that if the presence of the related witnesses at the time of occurrence is natural and their evidence is straightforward and confidence inspiring then the same can be safely relied upon to sustain conviction of an accused. Learned counsel for the appellant could not point out any reason as to why the complainant has falsely involved the appellant in the present case and let off the real culprit, who has murdered his real son. Substitution in such like cases is a rare phenomenon. He also could not point out any major contradiction or discrepancy in the statement of the witnesses, which could shatter the case of the prosecution in its entirety. The medical evidence available on the record corroborates the ocular account so far as the nature, time, locale and impact of the injuries on the persons of the deceased is concerned. Even otherwise, it is settled law that where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence and the same alone is sufficient to sustain conviction of an accused. Reliance is placed on Muhammad Iqbal Vs. The State (1996 SCMR 908), Naeem Akhtar Vs. The State (PLD 2003 SC 396), Faisal Mehmood Vs. The State (2010 SCMR 1025) and Muhammad Ilyas Vs. The State (2011 SCMR 460). It is settled principle of law that the value and status of medical evidence and recovery is always corroborative in its nature, which alone is Criminal Appeal No. 446/2020 -: 5 :- not sufficient to sustain conviction. So far as motive part of the prosecution story is concerned, the learned High Court has given a finding which ultimately does not imprint any impression regarding the final fate of adjudication of the instant lis. As the empty of cartridge and the weapon of offence i.e. 12 bore pump action gun were sent together to the Forensic Science Agency, therefore, the recovery is inconsequential. The appellant in his statement under Section 342 Cr.P.C. had taken a defence plea that the companion of the deceased snatched his gun and the same went off mistakenly. However, the learned High Court has rightly observed that the appellant did not opt to appear as his own witness in disproof of the allegations leveled against him in terms of Section 340(2) Cr.P.C. nor did he produce any evidence in his defence, therefore, rightly discarded the same. When the appellant took a specific plea and he was a best witness for the same then his non-appearance is to be taken as withholding of the best evidence. Even otherwise, a bare perusal of the record suggests that the learned Courts below while convicting the appellant did not solely rely on the statement of the appellant recorded under Section 342 Cr.P.C. and the same was based on the appreciation of evidence led by the prosecution in the shape of unimpeachable ocular account, which was supported by the medical evidence and other corroborative evidence to establish guilt of the appellant. 8. In the alternative, learned counsel contended that the occurrence took place at the spur of the moment, without any premeditation on the part of the appellant, therefore, the said aspect may be considered as a mitigating circumstance to reduce the sentence of the appellant. However, we are not convinced with the argument of the learned counsel because of the reason that being a security guard does not mean that the appellant is permitted to carry on official weapon given to him by the Security Agency. The Punjab Private Security Companies (Regulation and Control) Ordinance, 2002 and the Rules framed thereunder, specifically provide a scheme to regulate the private security companies and security guards. A bare perusal of Ordinance and the Rules framed thereunder would show that no guard shall be allowed to carry the weapon licensed in company’s name and same shall have to be handed over when he finishes his duty. It would be in fitness Criminal Appeal No. 446/2020 -: 6 :- of things to reproduce Section 8(11) of the Punjab Private Security Companies (Regulation and Control) Rules, 2003, which reads as under:- “A register shall be maintained at the place of duty indicating the handing over and taking over of the weapon when a new guard starts duty at the same place. This register shall be the property of the Security Company to be issued by the officer not less than the rank of Security Manager of the Company. The register shall be stamped and authenticated by the Company and the pages shall be numbered.” 9. Had the appellant followed the law, he would not have carried gun with him and the unfortunate incident wherein one innocent young lad lost his life could have been avoided. The learned courts below have already taken a lenient view while awarding the sentence of imprisonment for life to the appellant, which in our view leaves no room to further deliberate on this point. The learned High Court has correctly appreciated the material aspects of the case and the conclusions drawn are in line with the guidelines enunciated by this Court on the subject. Learned counsel for the appellant has not been able to point out any legal or factual error in the impugned judgment, which could be made basis to take a different view from that of the learned High Court. 10. For what has been discussed above, we do not find any merit in this appeal, which is dismissed. The above are the detailed reasons of our short order of even date. JUDGE JUDGE JUDGE Islamabad, the 6th of June, 2023 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MUSHIR ALAM MR. JUSTICE DOST MUHAMMAD KHAN CRIMINAL APPEAL NO.465/2015 (On appeal from the judgment dated 23.11.2010 passed by the Lahore High Court, Lahore in Crl.A.No.49/2005) Fayyaz Ahmad …Appellant Versus The State …Respondent For the appellant : Mr. Muhammad Siddique Khan Baloch, ASC For the State : Mirza Muhammad Usman, DPG-Punjab Date of Hearing : 13.9.2017 JUDGMENT Dost Muhammad Khan, J.— Appellant Fayyaz Ahmad “Lifer” at a trial held by Additional Sessions Judge, Vehari was sentenced to life imprisonment u/s 302(b) PPC with benefit of section 382-B Cr.PC and also to pay Rs.50,000/- as compensation to the LRs. of the deceased, namely, Zafar Iqbal. His appeal was dismissed vide impugned judgment dated 23.11.2010 by the then learned Chief Justice of Lahore High Court. On a jail petition, the appellant was granted leave to appeal vide order dated 13.10.2015 to re-appraise the evidence. 2. Brief but relevant facts are, that Mst. Naziran Bibi (PW-8), while reporting the crime to the local police of police station Thengi, district Vehari on 29.8.1999 alleged that two days earlier her child, aged 3 years, was abducted by the appellant and that they did not make a report and sat quiet. Alleging further, that a day thereafter i.e. 28.08.1999, the appellant came to them and Crl.A. 465/2015 2 stated that the child is in the District Courts Vehari and they should accompany him to get back the child. The deceased Zafar accompanied him but did not turn up till late night, thus they got worried and went out for search and during the process of search they reached Chak No.56/WB, where, people had assembled in a cotton crop land and were talking about a dead body, thus they reached at the spot and identified the dead body of Zafar Iqbal whose throat was cut through sharp weapon, hence she charged the appellant Fayyaz along with Riaz and Tufail. 3. Undeniably, rather admittedly it is an un-witnessed crime and the entire edifice of the prosecution case has been built on weakest circumstantial evidence. Two of the co-accused were declared innocent by the investigating agency and even they were not charge-sheeted. 4. It has come in the evidence that the child was handed over to the complainant Mst. Naziran Bibi four days after the occurrence by the police. Wherefrom and from whose custody the child was recovered, is still a begging question having not been explained anywhere by any witness for the prosecution. 5. To believe or rely on circumstantial evidence, the well settled and deeply entrenched principle is, that it is imperative for the Prosecution to provide all links in chain an unbroken one, where one end of the same touches the dead body and the other the neck of the accused. The present case is of such a nature where many links are missing in the chain. To carry conviction on a capital charge it is essential that courts have to deeply scrutinize the circumstantial evidence because fabricating of such evidence is not uncommon as we have Crl.A. 465/2015 3 noticed in some cases thus, very minute and narrow examination of the same is necessary to secure the ends of justice and that the Prosecution has to establish the case beyond all reasonable doubts, resting on circumstantial evidence. “Reasonable Doubt” does not mean any doubt but it must be accompanied by such reasons, sufficient to persuade a judicial mind for placing reliance on it. If it is short of such standard, it is better to discard the same so that an innocent person might not be sent to gallows. To draw an inference of guilt from such evidence, the Court has to apply its judicial mind with deep thought and with extra care and caution and whenever there are one or some indications, showing the design of the Prosecution of manufacturing and preparation of a case, the Courts have to show reluctance to believe it unless it is judicially satisfied about the guilt of accused person and the required chain is made out without any missing link, otherwise at random reliance on such evidence would result in failure of justice. 6. It may also be kept in mind that sometimes the investigating agency collects circumstantial evidence seems apparently believable however, if the strict standards of scrutiny are applied there would appear many cracks and doubts in the same which are always inherent therein and in that case Courts have to discard and disbelieve the same. 7. The last seen evidence is one of such categories of evidence. In this category of cases some fundamental principles must be followed and the Prosecution is under legal obligation to fulfill the same, some of which may be cited below:- (i) There must be cogent reasons that the deceased in normal and ordinary course was Crl.A. 465/2015 4 supposed to accompany the accused and those reasons must be palpable and prima facie furnished by the Prosecution. (ii) The proximity of the crime seen plays a vital role because if within a short distance the deceased is done to death then, ordinarily the inference would be that he did not part ways or separated from the accused and onus in this regard would shift to the accused to furnish those circumstances under which the deceased left him and parted ways in the course of transit. (iii) The timing of that the deceased was last seen with the accused and subsequently his murder, must be reasonably close to each other to exclude any possibility of the deceased getting away from the accused or the accused getting away from him. (iv) There must be some reasons and objects on account of which the deceased accompanied the accused for accomplishment of the same towards a particular destination, otherwise giving company by the deceased to the accused would become a question mark. (v) Additionally there must be some motive on the part of the accused to kill the deceased otherwise the Prosecution has to furnish evidence that it was during the transit that something happened abnormal or unpleasant which motivated the accused in killing the deceased. Crl.A. 465/2015 5 (vi) The quick reporting of the matter without any undue delay is essential, otherwise the prosecution story would become doubtful for the reason that the story of last seen was tailored or designed falsely, involving accused person. Beside the above, circumstantial evidence of last seen must be corroborated by independent evidence, coming from unimpeachable source because uncorroborated last seen evidence is a weak type of evidence in cases involving capital punishment. (vii) The recovery of the crime weapon from the accused and the opinion of the expert must be carried out in a transparent and fair manner to exclude all possible doubts, which may arise if it is not done in a proper and fair manner. (viii) The Court has also to seriously consider that whether the deceased was having any contributory role in the cause of his death inviting the trouble, if it was not a pre-planned and calculated murder.” 7. The appellant was, allegedly, forbidden to visit the house of the complainant and by her mother Mst. Urshaan Bibi (PW-9) where they were living without earning means of livelihood; the reason for that was not given in the FIR, however, at the trial, dishonest improvements were made that the appellant was demanding the hand of Naziran Bibi, complainant which was refused by her mother thus, to compel her for the said marriage, the child was abducted. Crl.A. 465/2015 6 8. No prudent mind on the earth would believe that once the child of 3 years age of the complainant was abducted which incident remained un-witnessed one, by itself, was not more than sufficient to achieve the object by getting hand of the complainant? Unnatural appearance of the appellant before the complainant party asking them to accompany him to collect the child from the District Courts premises, is absolutely unbelievable aspect of the story as it runs counter to natural human behaviour and conduct. The mother love for a child is incomparable and is blessed with a divine spirit, having been placed on high pedestal in this mundane world. Even small birds and sparrows have been shown and noticed, attacking wild animals when its child is aggressed upon, risking its own life to save it. Thus, the degree of dearness of the child to the mother is manifold higher than a brother. If the abduction of the child was true then, there existed no earthly reason to take away the deceased Zafar Iqbal by the appellant with the same motive and intention. It appears absolutely a fantastic theory that the appellant, guilty of abducting the child, would have approached the complainant, because in that event he would have been detained with the help of others or at least police would have been informed about his presence; then how, to the contrary, Zafar Iqbal deceased was let to accompany the appellant to collect the child from the District Courts Premises. The entire story in this regard is bereft of any reason and is hard to believe being of no legal worth and reliance. 9. Another intriguing aspect of the story is that instead of accompanying the appellant to the District Courts premises, the deceased went to the deserted area where his dead body was found Crl.A. 465/2015 7 in a standing cotton crop, considerably away from the District Courts. This deviation is neither understandable nor believable in the absence of any believable and reliable evidence. The brutal manner, the deceased was killed by cutting his throat, speaks volumes about a frustrated mind, full of revengeful sentiments, blowing high for the reasons of very strong motive behind it, which settled down after ruthlessly killing the deceased. The belated motive, attributed to the appellant by itself appears artificial, flimsy, feeble and not sufficient for an ordinary man to act so wolfishly on that account. The complainant admitted that the appellant was frequent visitor to their house. She and her mother, both were having no means to earn bread therefore, being a divorcee and mother of a little child, if her hand was demanded by the appellant, it was not less than a good fortune and blessings, therefore, refusal on her part is absolutely unbelievable. 10. We have searched the case-file from folder to folder but could not lay hand on any piece of corroboratory evidence to lend support to the weak circumstantial evidence. The crime knife, recovered at the instance of the appellant and that too after many days after his police custody is of no help to the prosecution because it was not shown stained with human blood. 11. The above factual infirmities apart, in three successive investigations, conducted by different investigating officers no definite opinion was formed by anyone about the guilt of the appellant as all of them stated on oath at the trial that the investigations carried out by them were inconclusive about the guilt of the appellant, causing the murder of Zafar Iqbal and of abducting the child. It is strange enough that the child was Crl.A. 465/2015 8 recovered by the police according to the evidence on record but the appellant was not charged for the abduction. 12. The autopsy report would suggest that the deceased was done to death 48 hours before the examination of the dead body by the medicolegal officer. This circumstance completely negates and nullifies the prosecution stance about the time of the departure of the deceased with the appellant and has cut the roots of the prosecution case. 13. In view of the combined study of the entire evidence and careful re-appraisal of the same we are led to an inescapable conclusion that the prosecution case is full of improbabilities, legal and factual infirmities of fatal nature and is pregnant with bristling doubts of grave nature. Thus, the prosecution has miserably failed to connect the neck of the appellant with the crime in any manner whatsoever. 14. Before parting with this judgment, we express our concerns and are at loss as to how the Trial Court convicted the appellant, more so, the learned Judge of the High Court maintained the conviction, which amounts to serious miscarriage of justice. For what has been discussed above, this appeal is allowed. The appellant is acquitted of all the charges leveled against him. He shall be set free forthwith if not required to be detained in any other case. Judge Judge Islamabad, the 13th September, 2017 Nisar/- “Approved for reporting’

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE EJAZ AFZAL KHAN MR. JUSTICE MAQBOOL BAQAR MR. JUSTICE FAISAL ARAB CRIMINAL APPEAL NO. 466 OF 2017 (On appeal against the judgment dated 19.03.2014 passed by the Lahore High Court, Lahore in Murder Reference No. 305/2010 & Criminal Appeal No. 253- J/2010) Muhammad Saleem … Appellant VERSUS The State … Respondent For the Appellant: Ms. Aisha Tasneem, ASC For the State: Ch. Muhammad Waheed, Addl. P.G. For the Complainant: Mr. Muhammad Siddiq Khan Baloch, ASC Date of Hearing: 28.02.2018 JUDGMENT FAISAL ARAB, J.- The appellant was tried under Sections 302, 324, 380 & 411 PPC and sentenced to death for committing murder of Muhammad Yaseen vide judgment dated 18.05.2010. He was also directed to pay compensation of Rs.100,000/- to the heirs of the deceased in terms of Section 544-A Cr.P.C. and in default to undergo six months simple imprisonment. He was further convicted under Section 324 PPC for causing injury to the mother of the deceased Mst. Zaitoon Bibi and sentenced to five years rigorous imprisonment and fined to the tune of Rs.15,000/- and in default thereof to suffer a further one month’s simple imprisonment. The learned High Court, however, converted CRIMINAL APPEAL NO. 466 OF 2017 2 the death sentence into life imprisonment, maintaining the fines and other punishment. 2. The incident is of 20.11.2007. In the FIR, it was reported that on hearing cries of his mother at about 2.00 a.m. in the middle of the night, the complainant Muhammad Yameen alongwith Muhammad Shahid, Muhammad Aslam, Malik Sajjad rushed towards the house of his brother Muhammad Yaseen and saw the appellant inflicting dagger blows to his brother and when mother Mst. Zaitoon Bibi intervened, a dagger blow was inflicted on her stomach as well. Leaving the injured on the floor, the appellant left with the knife in his hand daring the witnesses not to come near him. Both Muhammad Yaseen and Mst. Zaitoon Bibi were then taken to hospital in injured condition where Muhammad Yaseen succumbed to his injuries. The motive, as narrated in the FIR, was that just a day earlier the deceased Muhammad Yaseen had received Rs.100,000/- from his nephew Muhammad Shahid and the appellant being his friend was well aware of this and soon after the incident, the said amount was found missing, which raised suspicion that the appellant committed murder of the deceased for money. 3. Learned counsel for the appellant contended that the postmortem was conducted with a delay of six hours; that the prosecution witnesses were related to the deceased; that it was an incident of dacoity in which deceased was killed by dacoits and that the motive attributed to the appellant is not believable. Learned Additional Prosecutor General and the learned counsel for the complainant, on the other hand, defended the impugned judgment. CRIMINAL APPEAL NO. 466 OF 2017 3 4. Whether it was a case of robbery or there was suspicion on the appellant for having illicit relations with the wife of the deceased, as was suggested by the appellant himself in his statement recorded under Section 342 Cr.P.C, the motive will remain shrouded in mystery. The only thing that is to be seen is that whether the ocular and medical evidence as well as the recovery made by the police was so deficient that is to be lightly brushed aside. 5. It is an admitted fact that the appellant remained an absconder for about nine days. He was a friend of the deceased having his residence in the same neighborhood and known to the entire family of the deceased. It is quite surprising that he could not be found at his residence on the night of the incident, considering that the police was informed of the incident at 3:20 a.m. At that time the appellant ought to be found sleeping in his bed but he absconded. For any reason, if he had not spent the night in his house when the murder took place then he must be somewhere else. Not a single question was put to any of the prosecution witnesses that on the fateful night, he spent the night elsewhere. When a person is implicated in a case for committing murder at a place where he was not present, the most important question that is put to the prosecution witnesses in cross-examination is that the accused at the time of the incident was not even present in the locality. Nothing of the sort has come on the record. All this atleast establishes that after the incident, which took place in the middle of the night at 2 a.m. the appellant could not be found at his residence. CRIMINAL APPEAL NO. 466 OF 2017 4 6. PW-7 Muhammad Yameen, the complainant of the FIR and PW-8 Muhammad Shahid were residents of the same locality whereas PW-6 Mst. Zaitoon Bibi the mother of the deceased was residing in the house with the deceased where the murder took place. Hence none of the witnesses can be said to be chance witnesses. Their ocular account of the incident is also consistent. A question may arise that if the prosecution witnesses have told the truth then why they did not intervene considering the fact that the deceased received as many as fourteen stab wounds. As mentioned above, the complainant lived in the adjacent house and PW-8 Muhammad Shahid lived in the house opposite to that of the deceased. They woke up only when they heard the cries of Mst. Zaitoon Bibi. The cries of the mother reflect that scuffle between the appellant and the deceased had already started and in the process the appellant started stabbing the deceased. It would have taken the witnesses atleast a minute or so to get up from their beds and rush to the place of the incident. By that time quite a few knife blows might have already been inflicted on the deceased. There was no reason for the prosecution witnesses, more specially for Mst. Zaitoon Bibi (PW-6) who was mother of the deceased living with him in the same house and had herself received a knife blow right in her stomach to falsely implicate the appellant and conceal the fact that someone else had committed the murder of her son. Then according to the police witness soon after the arrest of the appellant on the tenth day of the incident, the knife and half of the missing money were recovered by the police at his instance. As to the medical evidence, the male doctor who conducted postmortem of the deceased and the female doctor who examined the injured Mst. CRIMINAL APPEAL NO. 466 OF 2017 5 Zaitoon have both in their respective reports have given the approximate time of injuries, which coincides with the time reported by the prosecution witnesses. The testimony of eye-witnesses including complainant, the mother of the deceased who was injured, the police witness, who effected recovery of the crime weapon, the report of the serologist and the medical evidence cannot be brushed aside, which remained unshaken and do not point to any material contradiction. The only inconsistency that was tried to be highlighted by the defence counsel was that initially it was reported that the appellant had a knife in his hand which in evidence turned out to be a knife type of dagger. This inconsistency on its own strength cannot be regarded sufficient enough to discard the unshaken ocular account of the incident. There were fourteen incised wounds on the body of the deceased inflicted by a sharp edged weapon, which could either be caused by a heavy knife or a dagger. Whether it was a knife or a knife type of dagger, the same is a minor discrepancy without having any effect on the type of injuries sustained by the deceased. It all depends how a weapon is described by a witness. 7. As far as the argument that the postmortem was conducted with a delay of about six hours as the injured were taken to the hospital at 3.00 a.m. whereas the postmortem was conducted on the same day at 9.10 a.m., suffice it to say that the lethargy that is witnessed in most of the government hospitals and the fact that it is nobody’s case that the deceased, a man in his forties, died of natural death, the delay in conducting the postmortem was not of such a consequence so as to brush aside the entire ocular evidence against the appellant. CRIMINAL APPEAL NO. 466 OF 2017 6 8. The evidence that has come on the record was sufficient to lead both the courts below to reach the conclusion that it was the appellant who had committed murder. 9. In view of what has been discussed above, charge against the appellant has been proved beyond any shadow of reasonable doubt. This appeal having no merit is thus dismissed. JUDGE JUDGE JUDGE Islamabad, Announced on ____________ by Hon’ble Mr. Justice Faisal Arab Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Yahya Afridi Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.475 of 2019 (Against the judgment dated 27.05.2015 passed by the Lahore High Court Lahore in Crl.A. No.158/2009) Muhammad Kamran …Petitioner(s) Versus The State …Respondent(s) For thePetitioner(s): Ch. Muhammad Rafique Jathol, ASC For the State: Mirza Abid Majeed, Addl. Prosecutor General Punjab Date of hearing: 30.09.2019. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Hamza Shahzad, 11, went missing along with his friend Hassan, 12, at 4:00 p.m. on 4.5.2006 from his house located within the precincts of Police Station City Satellite Town Sargodha; they were searched by the family without recourse to law, however, after receipt of an anonymous call on the following day at 3:00 p.m, his father Iftikhar Ahmad (PW-9) laid information with the police. The anonymous caller, without raising demand, assured the complainant children’s safe conduct, however, subsequently he demanded ransom, finally settled as Rs.20,00,000/- paid by the complainant at the designated venue, situated within the area of Dera Ismail Khan on Criminal Appeal No.475 of 2019 2 11.5.2006; it was received by two persons with muffled faces riding a car soon whereafter the children were brought at the scene by an unknown person. The accused surprisingly returned a sum of Rs.31000/- to the complainant. Despite registration of a criminal case and return of abductees, the complainant opted to stay silent as late as till 21.8.2008 when he through a supplementary statement named the appellant alongside three others as the culprits; Waqar, Shahzad and Umair, named as privies to the transaction, were, however, let off by the police whereas the appellant was formally arrested on 01.9.2008; he was identified by the PWs in a test identification parade, held under magisterial supervision on 13.09.2008. Pursuant to disclosures, the appellant got recovered the car used in the occurrence, a .30-caliber pistol and a sum of Rs.700,000/-, secured vide inventories; he was alone to claim trial before the learned Special Judge Anti-Terrorism Court, Sargodha who returned him a guilty verdict vide judgment dated 16.01.2009; convicted under section 365-A of the Pakistan Penal Code, 1860 as well as section 7(a) of the Anti-Terrorism Act 1997, he was sentenced to imprisonment for life on both heads with concurrent commutation, pre-trial period inclusive with forfeiture of his property, upheld by the High Court vide impugned judgment dated 27.05.2015, vires whereof, are being assailed through leave of the Court. 2. Learned counsel for the appellant contends that prosecution story, inherently flawed, fails to inspire confidence and as such there was no occasion for the High Court to maintain the conviction; that complainant’s silence despite registration of a case for an inordinate period, exceeding two years is a circumstance most intriguing with no explanation whatsoever; that non association of police despite knowledge and opportunity during the alleged delivery Criminal Appeal No.475 of 2019 3 of ransom amount is yet another aspect clamouring explanation. Rejection of appellant’s supplementary statement qua three out of four nominated accused demolished the entire case, concluded the learned counsel. The learned Law Officer has defended the impugned judgment by arguing that the complainant had no axe to grind against the appellant, hounded by a criminal history. It is argued that since the appellant was arrested after having been found in custody in some other case, there was no occasion for the complainant to furnish information with the police. Regarding non association of the police, the learned Law Officer cited safety of the children as paramount consideration to outweigh legal formalities. 3. Heard. Record perused. 4. Though it is rather hard to contemplate a false accusation of abduction, bracketing one’s own kith and kin, nonetheless, appellant’s belated nomination as the central figure in the episode warrants serious consideration for reasons more than one. The witnesses are discrepant on fundamental issues of demand of ransom and the manner whereby it was paid to the appellant. According to the complainant (PW-9), the captor asked for a sum of rupees 4 crore whereas according to Hassan Javed abductee (PW-7) the demanded amount was rupees 20 lac; the latter is supported by Hamza Shahzad (PW-8), no other than complainant’s son who endured captivity alongside the said witness. Even if the discrepancy is viewed as too trivial to cast bearing on the inherent fate of the case, still absence of Hassan Javed’s family from the scene is mindboggling; equally devastated by the disappearance of their child, none approached the police or joined the complainant in his pursuit for recovery of the children. Absence of call data, otherwise technically available, to confirm alleged conversation from appellant’s cell phone to Criminal Appeal No.475 of 2019 4 a landline PTCL number, subscribed by the complainant, a valuable piece of evidence to establish the alleged communication, is a missing link with obvious consequences. The genesis of supplementary statement is also fraught with doubts. According to the complainant, in his belated disclosure, he had nominated the appellant being the principal culprit, however, when confronted with supplementary statement Ex.DD, his name was conspicuously missing therein. Appellant’s nomination by one of the abductees, namely, Hassan Javed (PW-7) in his statement Ex.DC, purportedly recorded on 8.9.2008 met the same embarrassment. Complainant’s choice to let off three co-accused, initially nominated by him in his supplementary statement, is a last straw. To synchronize mutually destructive positions, taken after an appalling delay, to rescue the charge, resting on a moral paradigm, inherently lacking evidentiary certainty on appellant’s guilt, is an option beyond juridical possibility. It would be grievously unsafe to maintain the conviction. Criminal Appeal is allowed; impugned judgment dated 27.05.2015 is set aside; the appellant is acquitted of the charge and shall be released forthwith, if not required to be detained in any other case. Judge Judge Judge Islamabad 30thSeptember,2019 Not approved for reporting Azmat/-

ن�� � ِ�ا� )�(�ا �� ِر�ا :د��  � ب� � ،�� ن� � �آ � ،ن� � �ود � ب� � ب�  � ،ہ� � د� ىرا�� ى� �ا ٤٧٨، ٤٧٩ / ٢٠١٥ ) � ِ�ز٣(١٨٥، ِر�د  ِ �ر� ��ا ل� �� ن��١٩٧٣� ِ � ف��)�آ  �ر� ر�� �� ِ�ا�٠٨۔٠٧۔ ٢٠١١  �ا�� ىرا�� � ى� ١٣٣  ل�٢٠٠٣ ؁ و �ا�� ى�٢٩٨  ل�٢٠٠٤ ؁ � �ا� � و١٠ � ۔۔٢٠٠٣ ؁( �ا د� �ارد ل� )� �ا�ن( م� ر�� )� ل�( � �ا ��د� ہ:  ب�� � راد��� ن� ،   �ا � ِ�ا� ، �و  ��� �ال�  ہ:  ب��ا زا�ا ىر��، �ا � ِ�ا� ، �و  � ِ�ا� �و  ،ن� � �� ب� :ر�� ��  ب�  ،فو�ا� ں� �ا�و ىر�� د�آ م�ا ، :ہ� �� ��  ب�� ِ�ا� �و  ،س�ا � ں� ِ�� ِ�ر� ��: ١٦  ،ىر�٢٠١٨ Crl.As. No. 478-479/15 2 � �آ ِ�/ ۔:� ،ن� � �ود  :�� ت�� �  ں�ود �� � د� � � �� �ا ں�ود �� �ر� ا� � �ر�  �ا  ��ر� � � �ا � ر�� �� ِ�ا� �٠٨۔٠٧۔٢٠١١  � � � �اد ف� � � � � اد ف� � ا� � ٹر�ر ��ا �ا�ا � �ا ��� �� �� روا � � � �  روا ��� � ��اوںو  �ا� ىر� �� ِدا�ا� ن�� �ا ں�ود ۔� �آ � ِ�ز ت� ں� � ۔�٢  ى�وار  � � �� � د�آ م�ا و ن�وڈ٣٥٧  �ر�٢١۔٠٨۔٢٠٠٢  �� � �� �آ م�اد   ت�د ِ�ز٣٠٢/٣٤ و ٣٦٥ �د و ن�� ِتا��  ےا ۔٧   ن�� ىد���������د ِدا�ا (�)  ��١٩٩٧�� �ا� � � ِ�ز � � ىد � ت� �ا� � � راو ر� � � ؁ � ور � ر��   ى� ىرا�� �ا� روا � �ر ل�۔�١٠ /٢٠٠٣  �د ِ�ز٣٧٤   �� � ن�� ىرا�� �� ۔� :�� �� ٢۔  � � ف�ا � �� � ٹر�ر ��ا �ا�ا � ��ا ہا�)١٣ �� � (  � د�آ م�ا ےا ۔ �� ۔�آ �ر�٢١۔٠٨۔٢٠٠٢  ��٣:٥٠  �� �� �� ٹر�ر ند �  �� ہو � ا�٣١  � ل� � سا � � �� ��ر � ������������ � ِنو� �� �ا � � ل�  � � ف�ا �٢٢/٢٣ �  ل� ٢٠٠٠ � ؁�  ہ�رد  ہرادا �ر�ِ�� ��  نؤ� �� �او � �س� � نا�� روا � �را� ں� � ں�� ل� ۔�ا�د �اد   ہو � ں� � ������������  �ر�٨ ۔ �ا٢٠٠٢ � � �ا �او � ؁٣٨٢  �ا ۔�آ ��/� �آ ى�۔  ہو � � ��  �ر� �� � �ر �ار � ن� � � �ا �ازور١١ ۔ �ا٢٠٠٢ � �ار �� � سا � را�ا زو� ؁  � �ر �۔  ا�  ل� � � �� � �� �ار � مز� � �و�١١ ۔ � �ا � ر� �ا � �ا ۔�٢٨٩ ا�   ن� �ا�ا �ا ۔�آ � �او � � � � ند � ود �� �� � ى� �� � �� � �� �ر � س� � ل� � /وا �ور را� س�ر � ن� �٩٥٥٩٥٥٦ ۔٠٣٠٠ Crl.As. No. 478-479/15 3  �ر� نارود سا � ��١٤ �ا ۔٢٠٠٢�� � �و �� ھ� زو� ؁ �ڑ�  ند � ہر�  � ن� � � �٥٢٣٦٧٩٨ ۔٠٣٢٢   � �ر وا � �ار � � � � ىا ��� �ار ل� ر  م� � � � �� � و م� � � ۔ے� �� � ۔� � � ن� ن�ز �� � �او �� ن�  � ں�ود � ل� روا �آ ن�� � زاو� � ہو � � � � �� ں� ۔� �ر � ت� � � � � � � � � ت��� �� ۔ �ر� � �ڈ ��ا� �� � � ل� � سا � ا� � �ا ۔�آ/ ىد ں�د � �� ك�� � �ز� � � ��ا� � � � �ار � د�آ م�ا ى�  � � ل� �� روا � � ن�٩٥٦٠٦٢٣۔٠٣٠٠   � � � م� � � � �١٢ �� �ا ۔ � ����ارود � ند � ہر�د را� ك� � � �� � سا روا ن� �� ح� سا � � ل� �   � �ا ۔ ع�ا ۔� � جرد �� �� � ٣۔  � �� را� خر � ا� �� � �ا � � � ں�واز ِ�ز � دا�ا ك� � ۔اڑ� �ر �� � �ر �ا�ا �� � ڈر ن � ل� � � �ذ �� �ا � ں� ۔� اڑ� � � �  � ��ا ہا�) � ز� � � �� را�ا�٤ �ر�� (١٤۔٠٨۔٢٠٠٢  � �� �� � تار�ا � تار�ا � روا � �ا� جرد ٹر�ر س�  ۔� � �ا� ٤۔ ��  �ر ہا�� � ںو �� ن� � �او � سا � ں� �� غا� � وا � � � سا �  � ��ا ہا�) فر� � � � � �� � �٣ � �د ن�روا ا� � �� � �ا � د� زا ( �ر� � سا ١١۔٠٨۔٢٠٠٢ �ا  � ل� ند � ود � �ا ��  � ىڑ� د� � ےر�ا � ��  �� �� د�آ م�ا� �د ہا� � ہ� �ا �ا د�  �� � رو� خر � ر� روا� � �� �� ۔  �ر� �٢٧۔٠٨۔٢٠٠٢  � � ِ�� ���� � �� ن� � روا �� دا� ،�ا د� � � �او� ا� ن�� � � �از � �� � �� � ہ� �ا �ا د� ۔� � � ر� سا � � ف�ا �� � �� � � � سا ہ� روا � ا�ا ناو� �ا� � ل� � � �� � �ا � روا ن�ر �  �� م� � �او �ا م� �ا � سا � � ���� � ) ى� ا� �آ�ڈر�ر ر ( ظ� �  �� د�آ �ا � ں�ا � � � ل� � � روا �� �د � دو� � ں� ہ�� �ا � ۔�   ن� �ر��او �،  �� (�ا � �ا) راد ہ� � �� �ار � ������� �� �� Crl.As. No. 478-479/15 4  م� ا�� �ا �  سا � ع�ا ���آ �ا � د  �د � ہو � ى� � � � �ا �� �  � � �� ى� ��۔ �� د� � ں�ا � �� �آ� � � (  P.1)  روا ل�ر� د�  (Ex.PL)  �� ل� ل� � � � � ر� ہ ہ�� � سا � � �� �� � � � روا � � �د �  ��� � � � تار�ا روا �ا� ۔�   ً ار� � سا  � �  � �� � � � �ا � � ں�و روا � �ار د� � � �او �ا  � ت�ر� روا ��� � � � � � �� � � �ہ  � � سا �ا� � � � روا � �� ��آ �ا۔� � � �� �د � ��  ٥۔  ِنارود ہ� �ا �ا د� �� �ا �  ۔�� ر�د�١٥  � � � � �� �  م� �� � �او � ل� � ر� � � ں�ا � ں�� ں� روا �  � تا�و�د � � ��� � م� د� ۔ �� �� �� روا ہ� � ل� � ) ى� ا� �آرڈر�ر �(  � � � � � �� ن� �  ء�(��)  ۔� � �ا ے� � ن� � � ل� � � � � � ٦۔  �ر�٢٩۔٠٨۔٢٠٠٢  � �و� �ا � � ��ا ہا�)٢�ا ڑ� رو� � ( � د�آ م  د� �� � �ا � � ں� � � �� � �ا � � �ارد ل� ہ� �ا �� �ا  � سا روا � م� ل�ا � ز� � ہ� �ا ��� � � ل� � ر� � ىڑ� �ر� � ٠٢۔٠٩۔٢٠٠٢  رادرز ى�ڈ �او � � سا ��  � جا� �آ� ہ�� ۔� ىڑ� � �� � �  ى�� �۔ �  زور  � � ہ� �ا ل�٣٠  �� �� ��� � ل� ر� ىڑ� � � � �  � �� � � � � �آ� � � ۔ا� سا روا � ر�� � �ا � م� روا �ا � �ا � �ا �� � �ر� � �٠٩۔٠٩۔٢٠٠٢  � ل� �رذ � � � �آ� �ور روا (�) � راد � �  �ور روا � ��� �� ل� � �� � � � ى�  �ر �� � � سا ۔� � � م� ہ�  �ور را� ود � روا ى� �� � ل� � ��� � � � � ر�� �ر � د�آ �ا �او � � سا   � ہا��� �� �آ��� ۔ ن� � � ن�� � �ا  � �� ہ� ظ� � � � � روا  ت�����   � � ۔� �ا� �اد ن�� Crl.As. No. 478-479/15 5 ٧۔  �� �� ِنارود  �و�ور� � ��ا �ا� ى���������د ِدا�ا  روا � � ن�ا� ہر�ا  � �� � و � �ا� � ہو� � ت� �ا� � ہ� ر�� ن�� � �� م�ا، �ا� �� �د � � �� �ر � �ا � روا �ر �� � �� � ن�� �ا ں�ود �۔�ر ل� �ا�  ٨۔  �ر�٢٨۔١٠۔٢٠١٥ � � �ا � ہ� �ا ں�ود � ا� �ا �اد �� تز�ا ں� � ��  �د � �� � ا� �� �� � � تد� � � �� ٹر�ر ��ا �ا�ا � �ر وا  �ا ن��  � �� � �ا ں�ود روا � � ىرا��دن� �  � تد� ��او � نارود � ر� �  �� � ں��ا � ف�ا � تر� �ا ا� � �ا� � � � �ر� � ہد� � تد� � �  ۔�� � ہ�� ٩۔  � � �ىر� �ا زا�ا  ��  روا �� � �� �  �ا �ا� ء�و ��  ،ن��  �و ىر�� �ا ��   ں�ؤ�ا� ف �و �� روا  �ا�  ��د � �� �  روا � �� � � � � �ر� ��ا � � � تد�روا �� �� ہ�� � �� ط�  ۔� ہ�� ١٠۔  ل� ہ� �ا �و�ارد  ��و �� �� � � � � ت�او را�ا� ہ� �ا � � روا  �ر � �� � �� �� �� روا � م� ِل�ا �� � �� �� � � روا � �� � � � ف � � سا د�و� � � � � � � � ر�ا �ا� � � تد� ل� �� ��  � � �� � روز � �و �� م� �� ��� � ��د �ا ۔ �� � � ن� ں� �� �ا �� �د  �روا � �� �� ںو� � تد� ��او � ا� �� � �� � ى� ى�ود � ى� ��  �ر پ� �د� � � � � سا ت� � رود � � ل� ہ� �ا روا �آ � � � �ارد  ،رو� ��ا � � ك� ر� � تد� ��او � ���روا �� ، ا� � ہ� ہد��� � � � ىد  � ف�ا ��ا �ں �  �� ۔� ف ١١۔  زا�ا �و �� م�  �ا �� �د ��د� ى���  � � �ا د� ہ� �ا � ��ا  ،� ��� ،� ��� ،رو����  روا تد� �� � ں�و�ء ت� �ا� �  ہو� �  � �� �ا� �د � تد� � � � سا م�� � �� � ر� �� ىد �د �� � ں�ا ۔ Crl.As. No. 478-479/15 6  � ہا� � ��ا ف� � �� � سا �٣  � � ل�� � � � �ا� تد� ��او � �� � � سا � �د �د �آ م�ا � ےر�ا � �� � ر� �� � سا � ل � روا � ���  � �و� ��� لوا �� � � ا�ود روا � � � �� �� � � �ذ � ہا� سا � ہا� �  � �� � سا � روا � ��ر �� �� � � � ل� ��� �ر � � � � � سا  � � � �ا� � � � � ن� �د� م� ى�و�د �� � ں�ات� � � �  روا  � � � ہا� سا  � �� � تد� ى�ود � ��۔ � � ا�ا � � ل� � روا  � � ��آ� � � د�آ م�ا � � ��� � �او رود � ا � ہا� �ا تد� � �ر� �ا � ر� �رد� ر�   � � �� ِ �ر� روا ل� گ� �� ر� سا �� �� �ر �� � �� ں�ا ۔� � � � �� �ر � � � م� � ر� �ار (� ۔ىا) ع�ا ��� � � �� �د روز � ےرادا � ہو � �  � م� �ؤ� � م� � � �ا � ��� � ر� � � �� � � � �� � � � ��ر�  ۔�� ر�د� � � ب�را١٥ � ب�ا � � �� � � �۔  �ا � � � � تد� � � � � �ار � � � �� �� ل� �او � � ر�او� � روا � �� ��   �ا �ا �� � ��ا  � � � � �ا ��آ� � � � � �� � �� � �� � �رذ � � � � �� سا � � سا � �� � �� � � � � � ر� �و� � ر� �  ت�� �� � سا روا ���  �� و ك� ��ا �� � م� ڈر�ر � �� � روا ��و�  � � � ۔� �د � � ت  � �  � � � � �� � ��ا تد� م� �رذ � ل� � � � ع�ا �� �� ��  � � ل� (�۔ىا) � ر� � � � �� � زاوآ � سا روا � � (رڈ�ر �) ى� ا� �آ  � � � ظ� � ���� � ےر� �� � �� � � �� � � � روا  �  �� ا� ِ��  � � � � �زا� س� ۔ ہ� �ا � ل� �ا � �� � ��� � �� (�۔ىا) � �  �رد  ل�ا ِ�ز� �� ��   ۔�� � � � � ١٢۔  روز� �و �� م� �د �� �د ى�� �ا� � � � ا��� �  � �  � ��آ �� �� � ر� � � �ىر� �ا � � �� �� � سا � تد�  � � � � �  تد� ى �� را�� � روا ط� �و� �� روا ر�ا �� ��ا �� � سا � � � �� �د Crl.As. No. 478-479/15 7 �   �  � �ں�ا ں� � �� � ا� ��  روا � ��ا � �� � �ا د� ہ� �ا � �� �� �� � � تد� � �ا � ں�� ىر� � سا � ف� �ا � �� � ہ�� � � �ر� �  �  روا � �� ى� � ں� ا� � ں�� � � ىر� �� روا �� � ںور� � ف� ى�ود � � � ت� �ا� �� � ں��ا � ف�ا روا ن�� ر� � � � تد� � � سا  ا� �� �  �� ن� � �ا � ںور� � � �� � � �� � � � � ر� ى� روا  �� �تد�  ۔� � �� م�� � �� حور �رذ � ١٣۔  �� �� ى�ود �اد�آ م�ا ر�� �و  روا  � ں�ا� ں�ود � �� �و �� �ا ں� �� �� � � ن�� �ا ��ا� �� م ن�� �ا � � �� � ���د ��د �� � �� �� �� � سا ں� روا � � ىرا��د �ار ہا� �   �� � سا �� � نا � �  ��  � �� روا � �ر �ر ہ�ا� ا�ا ��و � ��ا� �ور � روا ناو� �   ،�  �ا  � ل�ر� � �� �ا � �ا �� �ا ں�� � تد� � ��و ں� �� �ا �� �  � نا�ا � ��� دز���  � � � سا � ور � �� ت�او و ت�� � ر�رد � � � � �ا �و ىر�� �� �� �ارد ل� ہ� ث� � م� �� �� روا � � � � �   � ا� ىرا�ا �� �� ہ�� ہ�� � � روا � رو� ��ا تد� ف� � سا � �ا ىد�  �ا د� ہ� �ا �� � � � �د�  � سا روا م� ل�ا �� � ��ا ن�ا� � ��� �آ �� ) ى� ا�ر ڈر�ر �( � � زاوآ � ل� � �  �  �آ� روا � ��سا  � � ل� � �او  � � (�۔ىا) م� �� � � �� �� � � �و� � سا� � سا روا � �� ��  ۔� � � �ا� راد �ذ � ��ا� ١٤۔  سا ل� � � تد� � �� �د ��د رادروز � � �و �ا �ا � � �  � ل� � ��� � سا روا � �د ر� ى�آ �� � ل� � ہ�� � � �آ� ء�ا  م� �� ِ�او � � (�۔ىا)  � � ل� ہ����  � �� را�ا � م� و�ور � �� روا � �  � ہو ا� � � �� �ا� � ور � تد� � ر� �رد � ن�� �ا � � �� �� د� � �  ۔� � را� � ��ر ۔� ��� ��ا م� �� �� Crl.As. No. 478-479/15 8 ١٥۔ ء�و � �ا� � �� � � ��د � � �� � ہ�� � � �ر� � � � تد�  �� ےر� ت� ��� روا ��او �آ  ۔� مز� �� � ِ�ز � � او � � ��ا� � � تد� ��  � ن� ل�ا �� روا �او � � ور � �� �� � �� ��ا �� ��ا � سا � � :۔� �� �د � �ذ � � �  )"�ا(  تد� ��او � ہو �� �و� �� � � � � �ا� �ا ت� ا� � � � � �ز � �ا ں�� م� � سا � � � ط� �ز� � � � � ��ا  �� �ر � � ڑارد �� � �ز سا � �� ا�  ء روا �� � � � ل� ا� �ا � �ز سا روا � �  �او ں�� � سا �ا �� � � � � م� ا� ا�ود� ى �� ى� �ا � �� �  � � � ت� �ا� � � � تد� ��او � � �د ا� � ں��ا � � ن�� روا ف�ا ف � �  ۔� � (ب) تد� ��او وا ل�ر �و� �� روا را�� � �� �� � �� � ��  �� � �رذ� � ر� � � �� � م� � � � �  ماود ۔� (ج)  اد� �ا ��ا � ےرادا � � ر� � �� � �� �� � تد� ��او ��ر  � ل� � سا � �� �ا � تد� �ا ا� � � ںور� � � �� � نارود  روا �ا ��ا � ں�ا� � ر� ہ�� � راد� � ط� �ز�� � تد� ��او ��ل  �� � � � � م� �  ��  � � ںور� � ا� � �� �� � �آ � لوا � ر� �  �� �� � ط�ا ��ا � ور � �� �ا� � � �ا� � �ا� � � �ا �ز�  � �� � ��� ۔ (د)  �ا ��ا � �� � ل� � تد� ��او � �� �� � �� ��� �� � راد� � ںور� � �د � ہ� � � � ہد� �� تد� ں� روا � �د � ك�   ۔� �� )ہ(  � ��د� � ںور� � � �� �� روا ل� � تد� ��او � �ا� �ا � � � � � ںودارا �  ےد ��د � �ا ۔� � ف�ا ِ�� �� در � تد� )و(  �ا  سا �دارا � ر� � روا � �و� ��� روا ل� � � �ا � تد� ��او  �اد � �� ل� روا �و� �� �  �� � ر� �� ى�ود � � سا � � � � �ا� ت�� روا ت�او �ا �� � �� � � ��� � � تد� �و�  ور � �� Crl.As. No. 478-479/15 9  � �� � � � � � �ا� � ںور� � � � � �آ �� � �اد � �� � تد� � � سا �� � ر� �� ۔� � � در" ١٦۔  نا� �� � � سا ٰ�ا ��  م�   �� ��(Crown) ہ� �� ] �� ن�� ��ر � �)(ىڈ �ا ل�١٩٥٣  � �ا� ��و٢١٤ [  � � �� � � �و ل�ا � ۔  �� ِنا�  ر�� م� ض� �]��ر � �� ن��(ىڈ �ا �)  ل�١٩٨٤ � � ِ�ا� ؁ ٤٤٥[  �� روانا� ����� رو�������� (Lejzor Teper)  م�   ��� �]� ن�� ���ر �  ل�١٩٥٢ [ ١١٩ � (Privy Council)  ہد�ز ل�ا � � �ا�  ں��ا �ا روا � � � ن� �� �  ہد�ا �� �� �ا� روا � ِ�ا� � �ا � �� روا �رآ � �� � سا ں� روا�اد �  ن��  � � � �رد � ف�ا � � � � ۔� �ا �� �� ١٧۔  �� ںور� � � � ا� �� � ور � ف�ا و ن�� ل�ا � �او �� �ر�  �� تد� ۔� � ��� � � و � � � ��او تد� ل� ِ�� راد� � ص� ِر� �  � ہ�� � � � � �� � � �ا �� ہر�� � د�آ م�ا �ا رود � نا�� �ا ل� � �  �� � �� � ��  روا � �� ��ر � ن� ��  روا � � � ىر�ور� ہو � � �ا�ا  � ٹر�ر ��اا � � � � ر�ا، � س � �و� و �� � دا�� � � � � �ز�  روا � � �ر � نا � � �ا� روا � �� ى�� � � �رآ � �ر � � دا�ا ود � �  ۔� اڑ� � � � � � ر�� � ں�� ك� �� � � ��ا � � �ذ �� ��ا �ا � � ر� �� � � � ل� ا�ا � ��  � سا �� � � � � � �� عو� � �  ������������ � نا � مز� � �و�  ��ا ہا�) � � �ر � � راد� روا م� � � سا �� �� � ن�  �٣ � �او �� �� � � � � � فر� � ( ل� �� د� ہ� �ا �ا � � ر� �  � �� ر� � ت� و ك� ا� �� � � ا�ا روا � � �� � � ں�د �� � �د �  � ل� ى� � تد� ��او سا � � �� � � � �� � تد� � ہا� سا �ا � � ��  � ��، �ر� و  � � � روا رود �� � �و سا ا �� ہ� �ا نارود � �و روا ��  � تد� ��ا � تد� � ہر�� ہا� � � �� � �� �� ن�ا ى� � �� ا� � ل� � �ا د�  ور � ن�� � � �� �رد� ل� �� � ہار ��ا � سا �� �� � � �و� �� �  Crl.As. No. 478-479/15 10  � �� �� � م� �ا� � سا � �و � � �د � ڑ� � �ا �� � �ا د� ہ� �ا  ى�� � � ��/  � ن� �و ل� �� � سا � �� �� � (�� ��) �� �د ر�  ۔� ١٨۔ � � ا� � ��ا�ا �� ��� �  � � ا�ا � ناو� � ل� � � ن�� � � �ا  � ن� ،� ِد ا� ىرو� �� � � ل� � �آ � ہ� � �  ، �� � تد� �� � � سا  سا ا� � �رذ � ل� � �ر � ناو� � ��� ہ�ز � ل� �� � د�� �  ��� �ا� ��  ر�� �� روا � ۔� ��� � � �ء�و  ى  م� � ل� �� �� � ى�ا� �آ  � � � ظ� � (رڈر�ر �) � ہو ا�ِ�او �  �� � ل�ا �� � �د ��د � ل� � � � � � �ا� �د � ۔�� � ل� ��� روا ل� ما�ا �� � �د ��د � ��ا   � � �� م� ِد� � � سا � نا � �ا� � �ر وا �� � � ن�� � ف� � ن�� �ا  ل�ر� سا � � ل� ۔� � � � زا�ا � � ر� � � � سا � ����ا   ا� �  � ور � � � تد� � � � �� � � ل� �� � � �ا� سا روا � �� �� �� �  ۔� � د�� زا� ل� س� � ��ا ١٩۔  �ا � � ل� � ود���  � د�� � � �  �ا � �� ہ� � سا  �� �� � م� رو� �� ى�ود � � � �  سا �د � � �� � ��د � �� �� � ہ� � ۔ ِ� � ںو�� ں�ود نا ء� ۔� � � � � �� ن��  � � � �ا �د� ��� � ��  � ں�د �� � � ��د ً��ا � م� � ہ�� ہر�ود � ل�� � سا� � سا �و � � � ��   �� � � � � ��� ���  � �� � سا � � �� �ر �� � � �ا روا ا ہر� �� سا۔� �رذ � �� � ں� روا ت�ر�  � ل� روا �� � ء�ا نا ��� � � � د� ہو � �ڑ� ۔�  � � �� �ا ِنو� � ل� �ا � ىد � ��و �و زو� � ا� م� � � سا �� �ر �� ل� � سا �� � � ِ�ز س� � �  ۔  � � ��ا � ہا� � � � روا   � � �ا� ت� ��� � �ر وا �ر � � ل� � زو� ے  � � د� � �� رود � م�ا سا ۔� � د�� ہا� �� � سا �� � � � ِ�ز ��و Crl.As. No. 478-479/15 11  �� � ل� � � ��ا � � ىرا� � د�آ م�ا �� � � � �ا�رد �ا د�� � � / � �ا� �� �ر� (ےا �ا ىڈ) �� ��ِ�� � ل� �� �  ت� و ك� � � �  � ہا��� �� ہ�� � زا ہ� �آ� � � د� �� � �ا�رد سا ۔� � � رود ا� �ا � ��ا �� � � � �د � � ت� و ك� �۔� �� � ن� �ا� ٢٠۔ �� � ��ا  و ك� � � � � �آ� ر� � ل� � ��� � �ارد ل� ہ� �ا �  � � د�آ م�ا �� � � � � � � �� ے�ود �ا �� � ر�� � ت�  ��آ� � ر� �� � �� � � �� �� � � � روا � � تز�ا � روا � ىد ع�ا � � �  ۔� � جار�ا �� � � ��آ� سا � ��زور � �� سا �  �د ِ�ز � �ر �� �  ت� روا �� ��ا �ا�١٢٩  �ا � ل� �� تد� ِن�� � � �� �� ر� �و� � ن�� ِل�ا سا ۔� ز� � �� ن�� � � � � ل� �� �ا  � �� �� � �� � تد� � �� �و� ��ا  � ل� � � � � ن� �وا � � � � جا� � � � �ا � ىڑ�ا  �ا � � �ا � ��� �� � � و � ��ا �� �ر �د روا ن�� � �� �� �در وا ڈر� � � � سا روا ہ� �� � ل� � ن�� �او �� �  ف� � نا � � ��آ� � نا � نا �� �ر ں� س� �ا � � � � و ر� � � ء�ا � �ا � � ںور� � ا� �� � � � ر� � تد� ط� �ا � �� �ار � ��ا  �� � ء�ا نا � ۔� در �� � ء� � �� �� � ت� ��ا � � � � � ےد �  �� م�� روا �� � ںور� � ��آ�� �� �� �� ن� � �ا ��  �� �� حور � ��  � �ہر�� � � �� ۔  � سا روا �� � سا ر�رد � � � ل� � ر� � � سا ا� � �� � � �� � � تا�� � جار�ا � � � ر� ہر�� � �   ۔�� � �� � � � � �� � ��ا ��آ� � ١٢۔ � �� � � � آ �ذ � � � � � � �� �� ہ� � � ل� ِ�او � (� ۔ىا) م  �ا� � � ر� � �� ے�� � تد� � ��� �ا � � ���  �� � � � � �  � ح� ى� � سا �� � �� � � � � ��ا � ك� � � � ۔� Crl.As. No. 478-479/15 12  � � � لوا١٥ ۔ �� ر�د� ، ���� ں�� � � � ہرادا �� �ا روا س� ��ا �  �رد  ے� � � ��ر ر� تار ند � � � � � ت�� � �د � سا روا � � �ا � جار�ا ےرادا سا ۔� د�� م� �� روا ى�� �� روا   �ر� � � ��ر م� روا �او د ���  � ��زور � � �� �� سا � � �� � جار�ا �� � ����  ��زور �م� �� سا  � � � � �� � م� روا � � جار�ا � �١٥ ۔ �� ر�د� � � � � جار�ا �� � � � ےرادا � �� �اد� ك� ��ا � تد� � ا� � ��   �او �ا � ل�ر وا ا� � �او �� ن� روا م� � � � �� �� ہ� � � � �/  �� � � � � ظ� � (رڈر�ر �) ى� ا� �آ � � م� �� م� � �  � �  �و� ور � �� � ںؤا� نا � �ر وا � � � �ا�� � � �زا� س� � ا� �   � تد� � ا�  �ر �رد � تد� � � � روا � ��ا ار� � � �ر� � � و � � ن�ا � � �رد �  � �� �� � � �ر� ںور�� ہر�ا ف� � ��د� �  � تد� ل�دا ��� �� � ف � � �� � ںور� � � �� �  ۔� � م� � ��د� � � ٢٢۔ ِ�ا� � �� �� ن�� �ا ں�ود ��  ��  � ت�� ��ا � نا ا� �ر ور � تد� ِن�� �� �و�ور  � �� � جا�ا �� روا �ر � �رد � تد� � �  � � � � ن�� � � � � �� � � � � ہ�و ��� � �� � � را�ا �� ِ�ا� ا� �آ � � ے�ز � ��رد  � تد� سا � �� �ا� �� روا �� �ا�ا �ا ۔� � � ��� � � ر �� �ر� ر��د� ��� �� ��  � ںور� � � � �� � �ا � � � �ر �  ف� � ں��ر� � نا �� � �ر ك� ��ا روا ضا�ا �� راد� �� � ِنارود  تد�  ��� ےر�ا �او �� � �   سا �� ۔� � �رد � �� � � � �ا� ر�� � ت� و ك� � �تد�  ��او �� ف� � ںور� � � �ا � ر� �� � روا  � � ن�� و ف�ا �� ر�ا �ا� � نا � � �� م�� � ����ں�� � � تد� Crl.As. No. 478-479/15 13 �ا�� � ف� � � ں� ا  �ا�اِ�ا� �� ِ�ا� روا ��  ں� �� � ز� � ں� � ىزرو ف� � ر� � � ن�� و ف�ا ِل�ا � � ب�را � �� � �� � ۔ ٢٣۔ آ ں�� � � تد� ��او ��ا � � ء� � ت��و�� �ر� � � �ڑ� � �  و � و � �ا� و ت� �ا� � ن�� �ا � تر� �ا ا� � �ر م�� � ر� � � ��  �� � ر�� �� �ا ں�ود � ےد ہ�� � � � ن�� �ا روا � �� �ر را�� � ��� � � ن�� �ا ں�ود ۔�  �ا ں�ود � � �� �د � �� روا � �� � �� � ںؤا�  ن��� � ہو � ں�  � � �  � � �� ے�ود � ہو � � ے� �ر � ر� ىر�  ۔ں� � ب� �� � �ر � � �  ۔� �� � �ا� � ھ� � � � �  د�آ م�ا١٦   ،ىر�٢٠١٨ � � ��ا) ر�( �را�

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.48-L of 2016 (Against the judgment dated 15.02.2002 passed by the Lahore High Court, Lahore in Criminal Appeal No.2101 of 2002). Muhammad Shafi alias Kuddoo …Appellant(s) VERSUS The State, etc. …Respondent(s) For the Appellant(s) : Mr. Shahid Azeem, ASC Respondent No.2 : In person For the State : Mr. Mazhar Sher Awan, Additional Prosecutor General Date of Hearing : 07.05.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J.- Muhammad Shafi alias Kuddoo, appellant herein, was tried along side Abdul Razzaq and Sakina Bibi, co-accused for committing qatl-e-amd of Khalil Ahmed at fajarwela on 15.2.2002 within the remit of Police Station Chunian, District Kasur. According to the complainant, on the fateful day, after offering fajar prayer, he was on way back home with Khalil Ahmed deceased a head of witnesses; as the deceased went past house of Sakina Bibi accused he was intercepted by the appellant as well as Abdul Razzaq. Upon exhortation, the appellant and Abdul Razzaq co-accused gave sota blows to the deceased; motive for crime is cited as alienation of immovable property by the deceased in favour of Sakina Bibi co-accused, his second wife as well as the appellant, a transaction that he attempted to revoke in the wake of differences with his better half. 2. The accused were indicted before the Additional Sessions Judge, who proceeded to acquit them vide judgment dated 30.10.2002 vires whereof were challenged through appeal Criminal Appeal No.48-L of 2016. 2 admitted to the extent of present appellant and finally allowed vide impugned judgment dated 15.2.2016 whereby the appellant stand convicted under clause (b) of Section 302 of Pakistan Penal Code, 1860; sentenced to imprisonment for life, he is directed to pay compensation in the sum of Rs. 200,000/- or to undergo six months S.I. with benefit of Section 382-B of Code of Criminal Procedure. 3. Learned counsel for the appellant contends that there was no occasion for the learned High Court to reverse the appellant’s acquittal that too after dissecting his case from identically placed co-accused, extended benefit of doubt. It is next argued that view taken by the learned trial Court being a possible view compatible with the evidence brought on the record was not open to any legitimate exception; the bottom line is that the impugned reasoning formulated by the learned High Court to convert appellant’s acquittal into conviction being in conflict with settled norms of safe administration of criminal justice and judicial principles applicable to reversal of acquittal warrants interference by this Court. 4. A variety of reasons weighed with the learned trial Judge to acquit the accused from the charge; inordinate delay in recourse to law being foremost, these include improbability of witnesses’ presence; their enmity with the accused, as well as, contradictions in their depositions and thus he found it unsafe to return a guilty verdict. None of the reasons cited by the learned trial Judge has been found by us as artificial or unrealistic. Even otherwise on an independent analysis, genesis of prosecution case does not appear to be free from doubt. Deceased was 70 years of age and in a chilled winter morning his presence at the crime scene within the view of witnesses, admittedly inimical towards the accused, available per chance and with formidable past has rightly been viewed with caution by the learned trial Judge. Ocular account is in conflict with medical evidence inasmuch as according to the crime report both the appellant, as well as, Abdul Razzaq, co-accused, are assigned one blow each to the deceased, whereas according to the initial medical examination, Medical Officer noted Criminal Appeal No.48-L of 2016. 3 solitary injury on the head, its impact on the eye has been utilized by the witnesses to array the latter in the crime. Deputation of Sakina Bibi to monitor deceased’s arrival so as to inform her son about deceased’s arrival is also an aspect of the case that requires a pinch of salt. Certainly there was no occasion for the learned High Court to convert appellant’s acquittal into conviction after it had itself disbelieved prosecution evidence qua two out of three accused, one with an identical role. It is by now well settled that acquittal carries with it double presumption of innocence; it is reversed only when found blatantly perverse, resting upon fringes of impossibility and resulting into miscarriage of justice. It cannot be set aside merely on the possibility of a contra view. The High Court has derogated from settled principles of law and thus departure does not commend itself with approval. Resultantly, Criminal appeal is allowed, impugned judgment dated 15.2.2016 is set aside. The appellant is acquitted from the charge and shall be set at liberty forthwith, if not required in any other case. Above are the reasons of our short order of even date which is reproduced as under: “For detailed reasons to follow, the instant criminal appeal is allowed. The conviction and sentence of the appellant Muhammad Shafi alias Kuddoo are set aside. He is acquitted of the charge framed against him. He shall be released forthwith, if not required to be detained in any other criminal case.” JUDGE JUDGE Lahore, the 07th of May, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Sardar Tariq Masood Mr. Justice Amin-ud-Din Khan Mr. Justice Syed Hasan Azhar Rizvi CRIMINAL APPEAL NO.48 OF 2021 (On appeal against the judgment dated 10.12.2015 passed by the Lahore High Court, Lahore, in Crl. Appeal No.2831 of 2010) Ahmed Ali and another … … Appellants Versus The State … … Respondent For the appellants : Raja Rizwan Abbasi, ASC ASC Syed Rifaqat Hussain Shah, AOR. For the State : Mr. Muhammad Jaffar, Addl. PG Pb. (Via video link from Lahore) Amicus Curiae : Raja Inaam Ameen Minhas, ASC Date of hearing : 13.12.2022 JUDGMENT SARDAR TARIQ MASOOD, J. Ahmad Ali and Iftikhar Ahmad (hereinafter referred to as the (“appellants”) were booked in case FIR No. 605 of 2010, registered on 26.05.2010 at Police Station A-Division, District Sheikhupura, under Section 9(c) of the Control of Narcotic Substances Act, 1997 (“CNSA”). After regular trial, the learned Sessions Judge/Special Court, CNSA, Sheikhupura, vide its judgment dated 13.11.2010, convicted the appellants under Section 9(c) of CNSA and sentenced to imprisonment for life with a fine of Rs.500,000/- (Rupees five hundred thousand) each, or in default thereof to further undergo simple imprisonment for one year each, with benefit of Section 382-B of the Code of Criminal Procedure, 1898 (“the Code”). The appeal filed by the appellants before the learned High Court was dismissed vide impugned judgment dated 10.12.2015; hence, the instant appeal by leave of this Court granted on 22.01.2021. 2. Learned counsel for the appellants contends that the appellants are innocent and have falsely been involved in the commission of the offence; that the prosecution has failed to prove its case beyond any Crl.A.48/2021 2 reasonable doubt as the prosecution evidence is tainted with contradictions and discrepancies; that the police, just to show their efficiency, has entangled the appellants in this crime; that during the trial neither the recovered Charas was produced in Court nor the same was exhibited; that the vehicle, the secret cavity whereof contraband was recovered, was also neither produced nor exhibited; that Moharrar of the Malkhana had not mentioned the date on which sample parcels were received by him, and also that he remained quiet regarding receipt of the remaining Charas. On the basis of the above deficiencies in the prosecution case, learned counsel submits that the appellants deserve acquittal. 3. On the other hand, learned Additional Prosecutor General Punjab (“APG”) supported the impugned judgment and stated that the prosecution has succeeded in proving the case beyond any reasonable doubt; that there is no inconsistency in the prosecution evidence; that Muhammad Bashir ASI/Moharrar (PW-2) appeared in the trial court and stated that he kept the sample parcels in safe custody and handed over the same to Muhammad Jamil, Constable (PW-3) for onward transmission to the Chemical Examiner, while the said Muhammad Jamil also appeared and stated that he deposited the sample parcels in the office of the Chemical Examiner intact for analysis; thus, the prosecution has proved safe custody and safe transmission. 4. Heard and record perused. The main point agitated by the learned counsel for the petitioners is that the case property was neither produced in the trial court nor exhibited by the prosecution. The learned APG, after going through the record, conceded that this flaw was left by the prosecution during the trial. He, as well as the learned Amicus Curia, however, assisted this court regarding the legal effects of non-production of case property in the trial court. 5. In light of the above, the main questions for consideration before this court are: why is the case property to be produced and exhibited during the trial? under which provisions of law? and which provisions of law deal with the proposition. For that purpose, first we need to examine the relevant provisions of law and rules as to the case property and exhibition of the same in a court of law. Rule 22.16 of the Police Rules, 1934 (“the Police Rules”) deals with the “case property”. Sub-rule (1) thereof provides, inter alia, that in certain circumstances, police shall seize weapons, articles and property in connection with criminal cases, and take charge of property which is unclaimed. Sub-rule (2) thereof provides, inter alia, that each weapon, Crl.A.48/2021 3 article or property (not being cattle) seized under the above sub-rule shall be marked or labelled with the name of the person from whom, or the place where, it was seized, and reference to the case diary or other report submitted from the police station. If articles are made up into a parcel, the parcel shall be secured with sealing wax, bearing the seal impression of the responsible officer, and shall similarly be marked or labelled. Such articles or parcels shall be placed in safe custody, pending disposal as provided by law or rule. Sub-rule (3) thereof provides, inter alia, that the police shall send to headquarters or to magisterial outposts all weapons, articles and property connected with cases sent for trial, as well as suspicious, unclaimed and other property, when ordered to do so by a competent Magistrate. Sub-rule (4) thereof provides, inter alia, that motor vehicles detained or seized by the police in connection with cases or accidents shall be produced before a Magistrate after rapid investigation or by means of in-complete challan. The evidence relating to the identity or condition of the vehicle should be led and disposed of at an early date, and the Magistrate should then be invited to exercise the discretion vested in him by Section 516-A, Code of Criminal Procedure, to order that the vehicle be made over to the owner pending conclusion of the case on security to be produced whenever demanded by the Court. Rule 22.18 of the Police Rules deals with “custody of property”. Sub-rule (1) thereof provides, inter alia, that property exceeding in value of Rs.500/-, whether appertaining to cases or seized on suspicion, or taken as unclaimed, shall be forwarded as soon as possible to district headquarters for deposit in the treasury in accordance with Police Rule 27.18(2) or, in the case of property connected with a case to be tried at an outstation or Tahsil, to the Tahsil Treasury, where it shall be placed in the Tahsil strong-room under the charge of Tahsildar. Sub-rule (2) thereof provides, inter alia, that all case property and unclaimed property, other than cattle, of which the police have taken possession, shall, if capable of being so treated, be kept in the store-room. Otherwise, the officer in-charge of the police station shall make other suitable arrangements for its safe custody until such time as it can be dealt with under sub-rule (1) above. Each article shall be entered in the store-room register and labelled. The label shall contain a reference to the entry in the store-room register and description of the article itself and, in the case of articles of case property, a reference to the case number. If several articles are contained in a parcel, a detail of the articles shall be given on the label and in the store-room register. The officer in-charge of the police station shall examine, government and other property in the store-room, at least twice a month and shall make an entry in the station Crl.A.48/2021 4 diary on the Monday following the examination to the effect that he has done so. Rule 22.70 of the Police Rules provides that Register No. XIX shall be maintained, wherein, with the exception of articles already included in Register No. XVI, every article placed in the store-room shall be entered and the removal of any such article shall also be noted in the appropriate column. Rule 27.11 of the Police Rules provides that the head of the legal branch shall, with the help of his assistants, maintain the Registers, including Register of case property and unclaimed property in Form 27.11(1), which may be destroyed three years after being completed. Rule 27.12 of the Police Rules provides that at headquarters, the Deputy Superintendent of Police (Legal), with the assistance of his staff, shall take charge of weapons, articles and property connected with their safe custody until the case is decided. When final orders are passed in the case, such weapons, articles and property shall, if not made over to the owner, be made over to the District Nazar. The Deputy Superintendent of Police (Legal) shall similarly take charge of, and be responsible for, the safe custody of suspicious property until the issue of the proclamation under Section 523 of the Code of Criminal Procedure, when such property be made over to the District Nazar. Thus, the Police Rules mandate that case property be kept in the Malkhana and that the entry of the same be recorded in Register No. XIX of the said police station. It is the duty of the police and prosecution to establish that the case property was kept in safe custody, and if it was required to be sent to any laboratory for analysis, to further establish its safe transmission and that the same was also recorded in the relevant register, including the road certificate, etc. The procedure in the Police Rules ensures that the case property, when is produced before the court, remains in safe custody and is not tempered with until that time. A complete mechanism is provided in Police Rules qua safe custody and safe transmission of case property to concerned laboratory and then to trial Court. 6. Now adverting to the Lahore High Court Rules and Orders (Civil and Criminal) (“High Court Rules”), it is to be noted that Part B of Chapter 24 of Volume III thereof deals with the trial of the Sessions cases. Rule 14-E thereof provides, inter alia, that care is often required in tracing the custody of a prisoner's substances, personal food, blood- stained clothes, etc. The evidence should never leave it doubtful as to what person or persons have had charge of such articles throughout the Crl.A.48/2021 5 various stages of the inquiry, if such doubt can be cleared up. This is especially necessary in the cases of articles sent to the chemical examiner. The person who packs, seals and dispatches such articles should invariably be examined. Rule 14-F of the High Court Rules provides that clothes, weapons, money, ornaments, food and every article which forms a part of the circumstantial evidence should be produced in Court and their connection with the case and identity should be proved by witnesses. Rule 14-H thereof provides, inter alia, that all exhibits should be marked with a letter or number. Articles which are produced in evidence should have a label attached to them bearing a number, and that number should be quoted throughout the record wherever any such article is referred to and should be distinctly marked as “admitted or not admitted”. If the exhibits have already been assigned numbers by the police, then that series of numbers should be mentioned to avoid confusion. A printed label should be affixed or attached to each exhibit containing, number of exhibit, produced by, admitted (signature of court), date, case and description of exhibits. The Sessions Judge is responsible to see that these entries are properly made. The above rules are reproduced as under:- “14-E. Custody of other articles. - Similar care is often required in tracing the custody of prisoner’s substances, personal food, blood-stained clothes etc. The evidence should never leave it doubtful as to what person or persons have had charge of such articles throughout the various stages of the inquiry if such doubt can be cleared up. This is especially necessary in the cases of articles sent to the Chemical Examiner. The person who packs, seals and dispatches such articles should invariably be examined. 14-F. Every article to be produced. Clothes, weapons, money, ornaments, food and every article which forms a part of the circumstantial evidence should be produced in Court and their connection with the case and identity should be proved by witnesses. 14-H. Exhibits.- All exhibits should be marked with a letter or numbers, Articles which are produced in evidence should have a label attached to them bearing a number, and that number should be quoted throughout the record wherever any such article is referred to and should be distinctly marked as “admitted or not admitted”. If the exhibits have already been assigned numbers by the police, that series of numbers should be mentioned to avoid confusion. A printed label should be affixed or attached to each exhibit containing the following particulars:- (i) Number of exhibit (ii) Produced by (iii) Admitted (Signature of Court) (iv) Date (v) Case Crl.A.48/2021 6 (vi) Description of exhibits. The Sessions Judge, should see that these entries are property made. Thus, under the Police Rules and the High Court Rules, mentioned above, in all cases, especially in the cases of articles sent to the chemical examiner, it is necessary that there be no doubt as to what person or persons have had charge of such articles throughout various stages of the inquiry. Besides, the person who packed, sealed, and dispatched such articles should invariably be examined. Further, the clothes, weapons, money, ornaments, food and every other article that forms a part of the circumstantial evidence has to be produced in court, and their connection with the case and identity should be proved by witnesses. 7. Now, adverting to the relevant provision of the Code of Criminal Procedure, 1898, Section 516-A thereof deals with the order for custody and disposal of property pending trial in certain cases. It provides that when any property regarding which any offence appears to have been committed, or which appears to have been used for the commission of any offence is produced before any criminal court during any inquiry or trial, the court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and if the property is subject to speedy or natural decay, it may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. The first proviso thereto provides that if the property consists of explosive substances, the court shall not order it to be sold or handed over to any person other than a government department or office dealing with, or to an authorized dealer of such substances. The second proviso thereto provides that if the property is a dangerous drug, intoxicant, intoxicating liquor or any other narcotic substance, seized or taken into custody under various laws, the court may, either on an application or of its own motion, and under its supervision and control, obtain and prepare such number of samples of the property as it may deem fit for safe custody and production before it or any other court, and cause destruction of the remaining portion of the property under a certificate issued by it in that behalf. The third proviso thereto provides that such samples shall be deemed to be whole of the property in an inquiry or proceeding in relation to such offence before any authority or court. Thus, the Court, on an application or of its own motion, under its supervision and control, can obtain and prepare such a number of samples of the property as it may deem fit for safe custody and Crl.A.48/2021 7 production before it or any other Court and can cause the destruction of the remaining portion of the property under a certificate issued by it in that behalf. Only then shall such samples be deemed to be the whole of the property in an inquiry or proceeding in relation to such offence before any authority or court. Even then, the sample parcels and the certificate are to be produced before the trial court and required to be exhibited, alongwith the report of the said Magistrate. 8. Another important provision is the Control of Narcotic Substances (Government Analysts) Rules, 2001, which provides the procedure to be followed by the police while dispatching the narcotic for the test or analysis and also the procedure to be adopted by the analyst. Relevant provisions therefrom are as follows: 4. Dispatch of sample for test or analysts, --- (1) Reasonable quantity of samples from the narcotic drugs, psychotropic substances of the controlled substances seized, shall be drawn on the spot of recovery and dispatched to the officer-incharge of nearest Federal Narcotic Testing Laboratory, depending upon the availability for test facilities, either by insured post or through special messenger duly authorized for the purpose. (2) Samples may be dispatched for analysis under the cover of a Test Memorandum specified in Form-1 at the earliest, but not later than seventy-two hours of the seizure. The envelope should be sealed and marked “Secret Drug Sample/Test Memorandum.” 5. Receipt in the laboratory and examination of sample with reference to Test Memorandum. --- (1) The sealed envelope containing the samples, received in the laboratory should be carefully opened and given a distinct laboratory number. (2) A separate register be maintained for narcotic drugs which may be further sub-divided agency-wise and the laboratory numbers should form a continuous series for each year. (3) All samples shall be passed to the analyst the same day, who will then keep the same in his safe custody and will examine and record its, or their, weight in the Test Memorandum. He will compare the markings on the Test Memorandums with the markings on the packages envelopes and will ensure that he test the relevant sample, and in no case, the analysis of a narcotic drug be delayed as the Courts may refuse to extend remand beyond fifteen days in the absence of a chemical report. 6. Report of result of test or analysis. --- After test or analysis the result thereof together with full protocols of the test applied, shall be signed in quadruplicate and supplied forthwith to the sender as specified in Form-II. The above provisions make it clear that samples of reasonable quantity have to be drawn at the spot from the narcotic substances and the same have to be dispatched to the nearest Testing Laboratory. It is important to note that the samples have to be dispatched for analysis at the earliest, but not later than seventy-two hours of the seizure. Further, the samples have to be dispatched for analysis, either by insured post or through special messenger duly authorized for the purpose, under the Crl.A.48/2021 8 cover of a “Test Memorandum” specified in Form-I and the envelope should be sealed and marked as “Secret Drug Sample/Test Memorandum”. After reaching the laboratory, the sealed envelope containing the samples should be carefully opened and given a distinct laboratory number, further subdivided agency-wise and the laboratory numbers should form a continuous series for each year, and for that purpose, a separate register has to be maintained. Thereafter, all samples have to be passed to the analyst on the same day, who has to keep the same in his safe custody, examine and record their weight in the Test Memorandum, compare the markings on the Test Memorandum with the markings on the package envelopes, and to ensure to test the relevant samples. It is emphasized that in no case should the analysis of a narcotic substance be delayed, as the courts refuse to extend remand beyond fifteen days in the absence of a chemical report. 9. With regard to the case law on the subject, it is to be noted that in the case of Qamar Zaman v. Waseem Iqbal and 5 others (2004 SCMR 1209), this court held that the gold articles said to be the belonging of the deceased were neither got identified in accordance with law nor exhibited in the trial, and as such, reliance on the same and awarding capital punishment would not at all be justified. In the case of State of Islamic Republic of Pakistan through Deputy Attorney: General for Pakistan v. Kenneth Marshal and 2 others (2005 SCMR 594) it was held that the prosecution miserably failed to produce and exhibit the case property though many opportunities were afforded by the trial Court; in such circumstances, it was rightly held by the High Court that there was no possibility of the accused being convicted and continuation of trial against them would be an abuse of the process of the Court. In the case of Gul Dast Khan v. the State (2009 SCMR 431), it was held that it would not be out of place to mention that the case property in that case has neither been exhibited nor produced at the trial, causing a dent in the prosecution's case. In the case of Amjad Ali v. State (2012 SCMR 577) it was held that admittedly the case property, the stepney of the car was never produced during trial to verify as to whether it could contain such a huge quantity of the narcotics in question; the referred elements of doubt surrounding the prosecution case have led us to hold that the prosecution has failed to prove its case beyond reasonable doubt to sustain conviction. With regard to the case-law from Indian jurisdiction on the subject, it is to be noted that in the case of Ashok alias Dangra Jaiswal v. State of Madhya Pradesh [(2011) 5 SCC 123] the Indian Supreme Court held as under: Crl.A.48/2021 9 “12. Last but not the least, the alleged narcotic powder seized from the possession of the accused, including the appellant was never produced before the trial court as a material exhibit and once again there is no explanation for its nonproduction. There is, thus, no evidence to connect the forensic report with the substance that was seized from the possession of the appellant or the other accused.” In the case of Vijay Jain v. State of Madhya Pradesh [(2013) 14 SCC 527] it was held as follows: “10. On the other hand, on a reading of this Court's judgment in Jitendra v. State of M.P. (2004) 10 SCC 562, we find that this Court has taken a view that in the trial for an offence under the NDPS Act, it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of the contraband goods were seized from the possession of the accused and the best evidence to prove this fact is to produce during the trial, the seized materials as material objects and where the contraband materials alleged to have been seized are not produced and there is no explanation for the failure to produce the contraband materials by the prosecution, mere oral evidence that the materials were seized from the accused would not be sufficient to make out an offence under the NDPS Act particularly when the panch witnesses have turned hostile. Again, in the case of Ashok v. State of M.P. [(2011) 5 SCC 123], this Court found that the alleged narcotic powder seized from the possession of the accused was not produced before the trial court as material exhibit and there was no explanation for its non- production and this Court held that there was therefore no evidence to connect the forensic report with the substance that was seized from the possession of the appellant.” In the case of Vijay Pandey v. The State of Uttar Pradesh [(2019) 18 SCC 215) it was held as under: “8. The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be co-related.” 10. In the rules referred to above, great emphasis has been laid on the safe custody and safe transmission of the narcotic substances and their transmission to the laboratory within seventy-two hours, perhaps for the reason that if the recovery of the narcotics from the custody of an accused is proved, he has to be convicted relying upon the report of the chemical examiner. Further, the case property is always relevant for the decision of the case because if the narcotics are recovered from any accused, the same should have been shown in court, and then the report of the laboratory would be helpful to the prosecution. Likewise, in narcotics cases, the conviction and sentence are based on the possession of the narcotics or on aiding, abetting or associating with the narcotics offences. In that eventuality, it is incumbent upon the prosecution to Crl.A.48/2021 10 produce the case property before the court to show that this is the narcotics/case property that was recovered from accused’s possession. The defense counsel may then request the court to de-seal and weigh the case property. Even otherwise, if the prosecution claims that huge quantities of narcotics, i.e., many mounds, were recovered but the same were never produced, then how can the accused be convicted for the said narcotics, which were never before the court or may not even be in existence? However, if the narcotics were destroyed under Section 516-A of the Code, then, of course, the said practice should be done after issuing notice to the accused, and the destruction should be done in the presence of the accused or his representative. The Magistrate is required to prepare samples of the narcotics substance that was ultimately destroyed so that a representative of the destruction process could be produced in the Court; besides, the certificate so issued by the Magistrate would also be relevant and the same should be exhibited in the Court. When the contraband, on the basis of which a person is convicted, is not produced or exhibited, how can a conviction be sustained on the basis of the same? When the material (narcotics) is neither produced nor exhibited, the presumption can be drawn that it is not in existence at all. When the best evidence, i.e., the case property/ narcotics, vehicle, etc., is withheld by the prosecution and there is no plausible explanation for the non-production of the same in court, an adverse inference or assumption against the prosecution could be drawn under Article 129-(g1) of the Qanoon-e-Shahadat Order, 1984, and it can easily be presumed that no such material/narcotics is in existence. Needless to observe that if the case property is not produced in Court, the concerned authority/prosecution is required to furnish plausible explanation based upon concrete material and not mere lame excuses. 11. It is further to be noted that in a stringent law such as the CNSA, where capital punishment or imprisonment for life can be awarded even on the testimonies of police officials, in order to bring home guilt against an accused, it is necessary for the prosecution to prove their case through reliable, unimpeachable, and confidence-inspiring evidence beyond any reasonable doubt. The harder the punishment, the stricter the standard of proof. In this regard, reliance can be placed on the judgment of this Court reported as Ameer Zeb v. the State (PLD 2012 SC 380), where it was observed that: “Punishments provided in the Control of Narcotic Substances Act, 1997 were quite stringent and long, if not harsh, and, thus, a special care had to be taken that a court trying such an offence had to be convinced that the entire quantity allegedly recovered Crl.A.48/2021 11 from the accused person’s possession was indeed narcotic substance. We, reverently and respectfully, tend to agree with the latter view and would like to add that the rule of thumb for safe administration of criminal justice is: “The harsher the sentence the stricter the standard of proof.” (Underling is provided by us for emphasis.) In the said Ameer Zaib’s case it was also observed by this court that: “We may also observe that in such cases it is the accused person who is at the receiving end of long and stringent punishments and, thus, safeguards from his point of view ought not to be allowed to be sacrificed at the altar of mere comfort or convenience of the prosecution.” 12. Even otherwise, it is well settled that for the purposes of extending the benefit of doubt to an accused, it is not necessary that there be multiple infirmities in the prosecution case or several circumstances creating doubt. A single or slightest doubt, if found reasonable, in the prosecution case would be sufficient to entitle the accused to its benefit, not as a matter of grace and concession but as a matter of right. Reliance in this regard may be placed on the cases reported as Tajamal Hussain v. the State (2022 SCMR 1567), Sajjad Hussain v. the State (2022 SCMR 1540), Abdul Ghafoor v. the State (2022 SCMR 1527 SC), Kashif Ali v. the State (2022 SCMR 1515), Muhammad Ashraf v. the State (2022 SCMR 1328), Khalid Mehmood v. the State (2022 SCMR 1148), Muhammad Sami Ullah v. the State (2022 SCMR 998), Bashir Muhammad Khan v. the State (2022 SCMR 986), The State v. Ahmed Omer Sheikh (2021 SCMR 873), Najaf Ali Shah v. the State (2021 SCMR 736), Muhammad Imran v. the State (2020 SCMR 857), Abdul Jabbar v. the State (2019 SCMR 129), Mst. Asia Bibi v. the State (2019 PLD 64 SC), Hashim Qasim v. the State (2017 SCMR 986), Muhammad Mansha v. the State (2018 SCMR 772), Muhammad Zaman v. the State (2014 SCMR 749 SC), Khalid Mehmood v. the State (2011 SCMR 664), Muhammad Akram v. the State (2009 SCMR 230), Faheem Ahmed Farooqui v. the State (2008 SCMR 1572), Ghulam Qadir v. the State (2008 SCMR 1221) and Tariq Pervaiz v. the State (1995 SCMR 1345). 13. In the instant case, the exhibits include an application to the SHO (Ex. PA), FIR (Ex. PA/1), a recovery memo (Ex. PB) and a report of the chemical examiner (Ex. PC/1) which were produced during trial; however, the narcotics substance and the vehicle, which form the case property i.e. narcotics recovered, were neither produced in court nor exhibited by the prosecution without plausible explanation. Therefore, we are of the view that the prosecution has failed to prove its case beyond a Crl.A.48/2021 12 reasonable doubt and the benefit of the doubt is extended to the appellants, Ahmed Ali and Iftikhar Ahmed. 14. These are the reasons of our short order dated 13.12.2022 which is reproduced as under: “For reasons to be recorded later, this appeal is allowed and conviction and sentences passed by the trial court and upheld by the High Court are hereby set-aside and the appellants Ahmed Ali and Iftikhar Ahmed are acquitted of the charge. They be released from jail forthwith, if not required to be detained in any other case. Judge Judge Judge APPROVED FOR REPORTING Islamabad .02.2023 M.Saeed/*

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE ASIF SAEED KHAN KHOSA MR. JUSTICE MUSHIR ALAM MR. JUSTICE DOST MUHAMMAD KHAN Criminal Appeal No.497/2009 and Criminal Appeal No.496/2009 (On appeal from the judgment dated 1.6.2009 passed by the Lahore High Court, Rawalpindi Bench Rawalpindi in Crl.A.144-T/2007, Crl.Revision.62-T/2007 & CSR.No.50-T/2007). 1. Azeem Khan …Appellant in Crl.A.496/09 2. Mujahid Khan & another …Appellants in Crl.A.497/0 VERSUS 1. Mujahid Khan & others …Respondents in Crl.A.496/09 2. The State …Respondent in Crl.A.497/09 For the appellants: Agha Muhammad Ali, ASC (In Crl.A.497/09) For the complainant: Sardar Muhammad Ishaq Khan, Sr. ASC For the State: Mr. Ahmad Raza Gillani, ASC Date of hearing: 15.10.2015 JUDGMENT Dost Muhammad Khan, J-. The appellants (i) Mujahid Khan and (ii) Arbab Khan, at a trial held by the learned Presiding Judge of Anti Terrorism Court-II, Rawalpindi, upon conviction U/Ss.365-A and 302 PPC read with Section 7 of Anti Terrorism Act, 1997, were handed down sentence(s) of death u/s 365-A PPC and S.7(e) of ATA. Additionally, appellant Mujahid Khan was convicted and was sentenced to death u/s 302(b) PPC. The properties of the appellants were also ordered to be forfeited. 2. Both the appellants filed appeal before the Lahore High Court, Rawalpindi Bench, Rawalpindi, which was heard along with Murder Reference No.50-T/2007 as well as Criminal Revision No.62- T/2007 filed by the complainant and vide impugned judgment dated Crl.As.496-497/09 2 01.06.2009, the appeal of the appellants was dismissed and the Reference sent by the Trial Court u/s 374 Cr.P.C. was answered in affirmative, however, the Criminal Revision Petition of the complainant was dismissed. 3. Both these appeals have been filed with leave of the Court dated 27.08.2009. The order is self speaking and elaborate one. We have heard Sardar Muhammad Ishaq Khan, learned Sr.ASC for the complainant, Agha Muhammad Ali, learned ASC for the appellants in Crl.A. No.497/2009 and Mr. Ahmad Raza Gillani, learned Additional Prosecutor General, Punjab and have carefully gone through the evidence on record. 4. Precise but relevant facts are that, a pre-teen nephew of the complainant, Khan Wali (PW-4), namely Muhammad Bilal (deceased) aged about 10/11 years went missing on 16.07.2006. In the crime report (Ex-PH/1) the complainant expressed apprehension that his nephew was probably kidnapped. After registration of the crime report, Nazar Muhammad SI, Police Post Naseerabad inspected the spot and prepared the site plan thereof. In the meanwhile a cell phone call was received by Muhammad Wali (PW-3); the caller used cell phone No.0302-5665028 and the receiving cell phone number of Muhammad Wali was 0300-9866033. The caller demanded Rs.25,00,000/- however, bargain was struck at Rs.3,00,000/-, which amount was delivered by leaving it at the place told by the caller to Muhammad Wali (PW-3). At this stage section 365-A PPC was added to the charge. The Investigating Officer obtained phone calls data of both the cell phones from the mobile company through one Rana Shahid Parvez, DSP on 03.08.2006. On 17.08.2006 both the appellants were arrested. During interrogation the appellants jointly disclosed that they had murdered the abductee Muhammad Bilal on 5th day of his Crl.As.496-497/09 3 abduction at 12:00 midnight by chocking his mouth and the dead body was then buried in a ditch however, on 22.07.2006 they had received an amount of Rs.3,00,000/- as ransom money from Muhammad Wali PW, who is the son of the complainant. The appellants further disclosed that after abduction of the deceased on 16.07.2006, they tied him with a tree, situated on the bank of flood channel. The abductee was killed because he used to raise hue and cries. 5. After the said disclosure, both the appellants were jointly taken to Tarnol area where they pointed out the place of crime, wherefrom mud stained torn ‘shalwar’, shirt and a pair of slippers, allegedly belonging to the deceased were recovered along with a wrapper of candies/toffees. A strip containing six pills was recovered from the pocket of the shirt of the deceased. These articles were identified by the father and cousin (Muhammad Wali) to be of Muhammad Bilal deceased on the spot. 12 pieces of bones were also recovered from the crime spot through a recovery memo and were sealed into one and the same parcel. A Suzuki Mehran Car No.FDO 5481 with registration book was recovered from appellant Mujahid Khan besides, the cell phone with SIM No.0302-5071540 was also recovered from appellant Arbab Khan on his personal search. 6. Both the appellants made judicial confession before Ch. Muhammad Taufiq, Magistrate on 18.08.2006 however, against the procedure as required under the law, they were handed over back to the same police officer, who got further physical custody of both the appellants on the same day from the Anti Terrorism Court, Rawalpindi. 7. Besides the above, appellant Mujahid Khan had also made extra-judicial confession before Haji Muhammad Ashraf (PW-8), the Crl.As.496-497/09 4 close relative of the complainant, on 16.07.2006 at 11:00 am at Rawalpindi, however, Muhammad Ashraf instead of informing the complainant through any source including cell phone call, decided to proceed to Peshawar where, he had allegedly struck a bargain with regard to the purchase of property. According to him, he was required to pay the earnest money to the seller and when he came back, he informed the complainant on the following day about the said fact. 8. At the trial, Muhammad Wali (PW-3) had stated that, on 17.08.2006, they were present with the police party, headed by the Investigating Officer who got information that both the appellants were coming to Rawalpindi in the Suzuki Mehran Car, mentioned above, thus, the police laid barricade at Tarnol and both the appellants, on reaching there, were intercepted and arrested. Contrary to the police statement, this witness has further stated at the trial that both the appellants were taken to the crime spot one after another and at their pointation the above crime articles, clothes and pair of slippers were recovered therefrom, which were taken through separate memos, Ex- PA and Ex.PB. 9. The bones recovered, were sent to the Forensic Science Laboratory, Lahore however, Dr. Manzoor Hussain, Research Officer of Molecular Biology, University of Punjab, Lahore (PW-13) stated that he received 21 numbers of bones and in addition thereto teeth as well, however, these were not shown in Ex.PA. At the instance of Arbab Khan appellant, an amount of Rs.150,000/- was recovered from an iron box in his house. The attesting witnesses to the recovery memo (Ex.PG) are the complainant and Muhammad Wali, who have played very active role in the course of furthering the investigation of the case. Crl.As.496-497/09 5 10. On the other hand, Dr. Manzoor Hussain (PW-13) brought on record the positive result of the DNA Test (Ex-PR) on the basis of samples, taken from Azeem Khan and Mst. Khiyal Bibi, the parents of the deceased with the recovered pieces of bones and teeth. 11. At the conclusion of investigation, charge sheet was filed against the appellants in the Trial Court, which ended in the conviction of both the appellants stated above. 12. The summary of the above detail would show that the prosecution has placed reliance on the following pieces of evidence:- (i) The cell-phone data, collected from the cellular company, of both the cell phones, the one allegedly belonging to appellant Arbab Khan and the other to Muhammad Wali (PW-3); (ii) The judicial confession of both the appellants recorded by the Magistrate; (iii) The extra-judicial confession made by one of the appellants, namely , Mujahid Khan, before Haji Muhammad Ashraf (PW-8), Vice President, “Anjuman-e- Tajran, Bara Market” Rawalpindi; (iv) The recovery of the bones (12 in number), clothes and slippers of the deceased from the crime spot; (v) The recovery of money from the house of the above appellant; (vi) The recovery of Suzuki Mehran Car, which one of the appellants had allegedly purchased from unknown seller, paying a portion of the ransom money; and (vii) Positive result of the DNA test. 13. Undeniably, it is an un-witnessed crime. The entire edifice of the prosecution case is based on circumstantial evidence and Crl.As.496-497/09 6 recovery of the alleged incriminating articles, detail of which is given above. 14. The judicial confessions, allegedly made by both the appellants are the material piece of evidence in the prosecution hand, therefore, we would deal with the same in the first instance. 15. Keeping in view the High Court Rules, laying down a binding procedure for taking required precautions and observing the requirements of the provision of section 364 read with section 164 Cr.P.C. by now it has become a trite law that before recording confession and that too in crimes entailing capital punishment, the Recording Magistrate has to essentially observe all these mandatory precautions. The fundamental logic behind the same is that, all signs of fear inculcated by the Investigating Agency in the mind of the accused are to be shedded out and he is to be provided full assurance that in case he is not guilty or is not making a confession voluntarily then in that case, he would not be handed over back to the police. Thereafter, sufficient time for reflection is to be given after the first warning is administered. At the expiry of that time, Recording Magistrate has to administer the second warning and the accused shall be assured that now he was in the safe hands. All police officials whether in uniform or otherwise, including Naib Court attached to the Court must be kept outside the Court and beyond the view of the accused. After observing all these legal requirements if the accused person is willing to confess then, all required questions formulated by the High Court Rules should be put to him and the answers given, be recorded in the words spoken by him. The statement of accused be recorded by the Magistrate with his own hand and in case there is a genuine compelling reason then, a special note is to be given that the Crl.As.496-497/09 7 same was dictated to a responsible official of the Court like Stenographer or Reader and oath shall also be administered to such official that he would correctly type or write the true and correct version, the accused stated and dictated by the Magistrate. In case, the accused is illiterate, the confession he makes, if recorded in another language i.e. Urdu or English then, after its completion, the same be read-over and explained to him in the language, the accused fully understand and thereafter a certificate, as required u/s 364 Cr.P.C. with regard to these proceedings be given by the Magistrate under his seal and signatures and the accused shall be sent to jail on judicial remand and during this process at no occasion he shall be handed over to any police official/officer whether he is Naib Court wearing police uniform, or any other police official/officer, because such careless dispensation would considerably diminish the voluntary nature of the confession, made by the accused. 16. In the instant case, the Recording Magistrate namely, Ch. Taufiq Ahmed did not observe least precautions, required under the law. He was so careless that the confessions of both the appellants were recorded on oath, grossly violating the law, the same, therefore, has rendered the confession inadmissible which cannot be safely relied upon keeping in view the principle of safe administration of justice. 17. The Recording Magistrate committed successive illegalities one after the other as after recording the confessions of the appellants on oath, both were handed over to the same police officer, who had produced them in the Court in handcuffs. This fact bespeaks volumes that the Recording Magistrate was either not knowing the law on the subject or he was acting in the police way desired by it, compromising his judicial obligations. This careless attitude of the Magistrate Crl.As.496-497/09 8 provided premium to the Investigating Agency because it was thereafter, that the recoveries of the so-called incriminating articles were made at the instance of the appellants, detail of which is mentioned above. 18. In our considered view, the confessions of both the appellants for the above reasons are of no legal worth, to be relied upon and are excluded from consideration, more so, when these were retracted at the trial. Confessions of this nature, which were retracted by the appellants, cannot mutually corroborate each other on the principle that one tainted evidence cannot corroborate the other tainted piece of evidence. Similar view was taken by this Court in the case of Muhammad Bakhsh v. The State (PLD 1956 SC 420), while in the case of Khuda Bux v. The Crown (1969 SCMR 390) the confession made, was held not voluntary because the accused in that case was remanded back to the police after making confession. 19. Both the confessions of the appellants prima facie appear to be untrue because the same are clashing with the story set up by prosecution witnesses on material particulars of the case. In the confession of Mujahid Khan it is stated that Arbab Khan co-accused contacted Haji Azeem Khan (father of the deceased) on phone and demanded an amount of Rs.25,00,000/- from him as ransom money also telling him that he will call back. While, Muhammad Wali (PW-3) stated that it was he who was contacted by the accused on cell phone in this regard four times on different dates and he struck the bargain at Rs.3,00,000/- which amount he placed at the point, told to him by the accused. The cell phone data collected by the police is with regard to the two cell-phones, one is attributed to Arbab Khan appellant and the other to PW Muhammad Wali. At the relevant time, Azeem Khan, Crl.As.496-497/09 9 father of the deceased was abroad and only the complainant, Khan Wali and his son Muhammad Wali have been shown interacting with the caller on phone. The contradiction pointed out, is of a serious nature thus, has demolished the story given in the confessions of the appellants and has rendered the same of no legal efficacy. Appellant Mujahid Khan has disclosed in his confession that with the share of the ransom money he purchased Alto Taxi Car but a car of different make (Suzuki Mehran) was recovered. This aspect of the matter was also not investigated to trace out the seller of the car besides, the time and date of the bargain of purchase of the car was also not brought on record. Similarly, appellant Arbab Khan stated in his confessional statement that he had spent the money on his engagement with a girl. Neither the name of the girl has been brought on record nor of her family members i.e. parents, to corroborate this aspect of the matter. Such evidence would have provided enough corroboration what was stated in the confession but it appears that, the same was deliberately withheld therefore, adverse inference is to be drawn against the prosecution. In his confession (Ex-PM), appellant Mujahid Khan has stated that he and Arbab Khan both were called on phone by the police and were then arrested, while PW-3, stated at the trial that both the appellants were arrested during snap checking on a barricade, laid near Tarnol. The above contradiction is of a grave nature, which cannot be lightly ignored. At the trial, the Recording Magistrate made crude attempts to rectify the wrong/illegalities, he had committed in recording the two confessions however, the law of evidence is clear on this point that documentary evidence shall prevail over the oral statement made at a subsequent stage, contradicting the contents of documents. Therefore, his belated statement at the trial cannot be safely relied upon. The subsequent statement of the Recording Crl.As.496-497/09 10 Magistrate created many doubts and had made both the confessions highly doubtful. In the circumstances the principle of re-benefit of doubt is attracted, which has to be extended to the appellants and not the prosecution. The questionnaire would show that many mandatory questions were not put to the appellants like duration of police custody and that they would not be given back to the police whether they record the confession or not. This is another infirmity of a serious nature, diminishing the voluntary nature of the confession to naught. 20. Leaving apart the above infirmities, Mujahid Khan, according to his confession, was a conductor on a Dumper while Arbab Khan was employed in a local hotel near Tarnol. In both the confessions, the appellants have stated that due to poverty they decided to commit the crime of abduction for ransom however, the investigative agency did not record the statements of the driver/owner of the Dumper and the proprietor of the hotel where the accused were employed. Thus, beside others, this important link is missing in the chain for lack of corroborative evidence. Moreover, when both the appellants had spent their share of ransom money, then how an amount of Rs.150,000/- was recovered from appellant Arbab Khan. 21. In both the confessions, it is stated that the abductee was immediately taken out to an open place and he was tied with a tree. One of the appellants, Mujahid Khan used to stay with him at night but at day time he used to leave behind the abductee all alone. Such unnatural conduct could not be believed as any passerby could come across and would have released the abductee. Such a fantastic story, bereft of logic, can only be believed by a blind or imprudent man because it was the abductee, on whom the appellants were to encash upon Rs.25,00,000/- No one, who catches a big fish would let it to Crl.As.496-497/09 11 swim again in the seawater because, its retrieval would become absolutely impossible. 22. The cell phone call data collected is of no help to the prosecution for the reasons that numerous calls have been made indicating continuous interaction between the two cell phones, contrary to the evidence given by Muhammad Wali (PW-3), who has stated at the trial that the unknown caller made calls on his cell phone four times. No competent witness was produced at the trial, who provided the call data, Ex.P-1 to Ex.P-5. No voice record transcript has been brought on record. Similarly from which area the caller made the calls, is also not shown in it. Above all, the most crucial and conclusive proof that the cell phone was owned by the accused and SIM allotted was in his name is also missing. In this view of the matter, this piece of evidence is absolutely inconclusive and of no benefit to the prosecution nor it connects the accused with the crime in any manner. 23. The extra-judicial confession, allegedly made by one of the accused before Haji Muhammad Ashraf (PW-8), Vice President of the “Anjuman-e-Tajran, Bara Market” Rawalpindi appears to be a concocted story because he admitted that the complainant is related to him and they reside in the same street. Appellant Mujahid Khan allegedly made extra judicial confession before him on 14.08.2006, however, he being closely related and having somewhat business connection with the complainant, did not inform him immediately although he was having a car with him at that time and also a cell phone, rather he decided to go to Peshawar and when he came back on the following day, instead of persuading the complainant Khan Wali, under the direction of the latter, he Crl.As.496-497/09 12 straightaway went to Police Post Naseerabad and recorded his statement with the police against both the appellants. His plea that he had struck a bargain of property and was to pay earnest money therefore, he went to Peshawar thus, could not inform the complainant for that reason, is a fallacious one. Being a very serious matter and being a relative of the complainant and because the complainant was residing in Rawalpindi, few kilometers away from that place, when he got this information at 10:30 am on 14.08.2006, there was no impediment in his way to inform him directly or through phone. Peshawar city is roughly 100 kilometer away from Rawalpindi, if at all he was required to strike a bargain for purchase of property, he could have reached there within 2 hours after disclosing this fact to the complainant. Even, the IO did not go to Peshawar to verify this assertion of the PW, as to whether he had gone to Peshawar for the above purpose and who was the seller of the property, with whom he had struck the bargain. No document about the bargain was produced to the Investigating Officer. Even otherwise, the story appears highly insensible and runs counter to natural human conduct and behaviour that the appellant, Mujahid Khan would have disclosed such a gruesome crime before this PW, involving the necks of both, knowing well that this witness was of no help to him/them because on record it is proved that this PW did not utter a single word to the complainant persuading him for re- conciliation and for settlement, rather after disclosing the fact of disclosure of the crime, the appellant had made to him, he (Haji Muhammad Ashraf) on the direction of the complainant went straight to the Police Post and recorded his statement with the Investigating Officer. This, in our considered opinion, appears to be a concocted Crl.As.496-497/09 13 story. He being the relative of the complainant and also running the business in the same market, where the complainant do the same business, the appellant Mujahid Khan would have never opted for disclosing such a gruesome crime to him, when by then the complainant party and the Investigating Agency, both were clueless about the crime of murder of the deceased and also about the actual culprits. This part of the evidence is nothing but a tailored story, which was arranged with the help of the Investigating Agency thus, it is of no legal worth and being absolutely unreliable is excluded from consideration. 24. It is a consistent view of the Courts that extra-judicial confession, if made before a person of influence and authority, expected to extend helping hand to the accused, which is also strongly corroborated, can only be considered as a piece of circumstantial evidence. This Court held so in the case of Noor Muhammad v. The State (1991 PSC 235). Such evidence is held to be the weakest type of evidence. No conviction on capital charge can be recorded on such evidence. 25. The recovery of 12 numbers of bones, shirt, shalwar and slippers of the deceased is also liable to be discarded. The recovery memo (Ex-PA) would show that father of the abductee, namely, Azeem Khan and PW Muhammad Wali are attesting witnesses to the same, who were naturally highly interested witnesses. Secondly, when this parcel was received after about one month in the Forensic Science Laboratory, Lahore, the numbers of bones were found 21 as have been shown in the report and in addition thereto, teeth were also received in the sealed parcel which, at no occasion was the case of the prosecution. Thus, this serious conflict between the two documents is Crl.As.496-497/09 14 of such a nature, which could not be reconciled altogether, either by the learned ASC for the complainant or by the Additional Prosecutor General. This fact by itself creates sufficient doubts and on this score, the DNA test report is of no legal worth. The abductee was killed probably 2/3 days after 16.07.2006 while pieces of bones were recovered on 17.08.2006 which were also overrun by the flood water of the channel and mud as well. According to the well-known medico-legal jurist, MODI such like destruction of entire body of human being, even of teenager is not possible within two months because some of visceras made of tough tissues and full skeleton of human body remain intact. This opinion of the jurist is based on practical experience in many cases of this nature, instances of which are given by him in the Chapter “STAGES OF PUTREFACTION OR DE-COMPOSITION OF BODY”. In this case, only scattered pieces of bones were recovered and not full skeleton of human body, which by itself is unbelievable, being against the well established and universally recognized juristic view on the subject. Thus, the possibility that the body of the person whether dead or alive was torn into pieces by beasts or dogs etc. Moreover, from where the nine additional bones and teeth were arranged by the police and when these were put in the same parcel, is a big question mark for which the prosecution has got no answer to give. In any case, the recovery of the pieces of bones after one month is entirely doubtful in light of the view expressed by MODI in his book. Same is the view of other renowned Jurists on the subject. 26. The next piece of evidence is the positive result of the DNA test. Whether the report was legally admissible, keeping in view the provision of section 510 Cr.P.C. where-under, the report of Crl.As.496-497/09 15 biochemical expert on DNA (a biochemist) is not covered thus, it is open to a serious debate because under the above provision of law, specified experts’ reports, excluding the report of above said expert, have been made admissible. This aspect would be discussed and decided in some other cases elaborately however, at present we are unable to hold the same as an admissible piece of evidence in absence of any sanction of law. 27. In the recent past many scandals in USA, UK and other countries have surfaced where desired DNA test reports were procured by the investigative by contaminating the samples. Such contamination has also been reported in some cases while the samples remained in the laboratories. Many inquires were held on this issue and stringent law has been made by many States to prevent the contamination of samples outside and inside the laboratories. Proper procedure has been laid down for securing and carefully putting into parcel the suspected materials to co-relate with the samples of the parents to establish paternity or maternity. Similarly, stringent check and procedure has been provided to avoid and prevent cross contamination of the two samples because if both come in contact with each others then, it will give false positive appearance and the expert is thus misled. It has also been discovered that credentials of many experts, claiming possessed of higher qualification in this particular field, were found fake and they were thus, removed from service. The DNA Wikipedia on web is an unrebutted testimony to these facts. 28. In any case, it is an expert opinion and even if it is admitted into the evidence and relied upon, would in no manner be sufficient to connect the necks of the appellants with the commission of the crime when the bulk of other evidence has been held by us Crl.As.496-497/09 16 unbelievable thus, no reliance can be placed on it to award a capital sentence. Moreover, to ensure fair-play and transparency, the samples in the laboratories from the parents should have been taken in the presence of some independent authority like a Magistrate and also the recovered samples from the crime scene in the same way to dispel the chances of fabrication of evidence through corrupt practices and the transition of the samples to the laboratory should have also been made in a safe and secure manner. But all these safeguards were kept aside. 29. The plea of the learned ASC for the complainant and the learned Additional Prosecutor General, Punjab that because the complainant party was having no enmity to falsely implicate the appellants in such a heinous crime thus, the evidence adduced shall be believed, is entirely misconceived one. It is a cardinal principle of justice and law that only the intrinsic worth and probative value of the evidence would play a decisive role in determining the guilt or innocence of an accused person. Even evidence of uninterested witness, not inimical to the accused, may be corrupted deliberately while evidence of inimical witness, if found consistent with the other evidence corroborating it, may be relied upon. Reliance in this regard may be placed on the case of Waqar Zaheer vs. The State (1991 PSC 281) 30. We have found that in the recovery memo with regard to the bones, clothes of the deceased and pair of slippers, subsequently addition has been made at a later stage and for that reason alone, the same is liable to be discarded. In the case of Muhammad Sharif v. The State (1980 SCMR 231) interpolation/over-writings made in the inquest report, were considered seriously by this Court and it was held Crl.As.496-497/09 17 that in such a case the Court should be at guard and has to take extra care in making the appraisal of evidence, because once dishonesty in the course of investigation is discovered then Court would always seek strong corroboratory evidence before relying on the other evidence of the prosecution. 31. As discussed earlier, the entire case of the prosecution is based on circumstantial evidence. The principle of law, consistently laid down by this Court is, that different pieces of such evidence have to make one chain, an unbroken one where one end of it touches the dead body and the other the neck of the accused. In case of any missing link in the chain, the whole chain is broken and no conviction can be recorded in crimes entailing capital punishment. This principle is fully attracted to the facts and circumstances of the present case. 32. It is also a well embedded principle of law and justice that no one should be construed into a crime on the basis of presumption in the absence of strong evidence of unimpeachable character and legally admissible one. Similarly, mere heinous or gruesome nature of crime shall not detract the Court of law in any manner from the due course to judge and make the appraisal of evidence in a laid down manner and to extend the benefit of reasonable doubt to an accused person being indefeasible and inalienable right of an accused. In getting influence from the nature of the crime and other extraneous consideration might lead the Judges to a patently wrong conclusion. In that event the justice would be casualty. In cases of circumstantial evidence, the Courts are to take extraordinary care and caution before relying on the same. Circumstantial evidence, even if supported by defective or inadequate Crl.As.496-497/09 18 evidence, cannot be made basis for conviction on a capital charge, More particularly, when there are indications of design in the preparation of a case or introducing any piece of fabricated evidence, the Court should always be mindful to take extraordinary precautions, so that the possibility of it being deliberately misled into false inference and patently wrong conclusion is to be ruled out, therefore hard and fast rules should be applied for carefully and narrowly examining circumstantial evidence in such cases because chances of fabricating such evidence are always there. To justify the inference of guilt of an accused person, the circumstantial evidence must be of a quality to be incompatible with the innocence of the accused. If such circumstantial evidence is not of that standard and quality, it would be highly dangerous to rely upon the same by awarding capital punishment. The better and safe course would be not to rely upon it in securing the ends of justice. 33. In the instant case, both the learned Trial Judge and the learned Division Bench of the High Court in the impugned judgment have not observed, nor have taken care of these guiding and leading principles universally accepted and have at random relied on highly cryptic, infirm and incredible evidence, resulting into miscarriage of justice. For the above mentioned reasons, Crl. Appeal No.497/2009 filed by the appellants, Mujahid Khan and Arbab Khan is allowed, while the connected appeal (Crl.Appeal No.496/09) filed by the complainant is dismissed. These are the detailed reasons for our short order of the even date, which is reproduced below:- “For detailed reasons to be recorded later on Criminal Appeal No.496 of 2009 is dismissed and Criminal Appeal Crl.As.496-497/09 19 No.497 of 2009 is allowed, the convictions and sentences of both the appellants in Criminal Appeal No.497 of 2009 recorded and upheld by the courts below are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required to be detained in connection with any other case.” Judge Judge Judge Islamabad, the 15th October, 2015 Nisar/-‘ ‘Approved for reporting’

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) Present: Mr. Justice Sardar Tariq Masood Mr. Justice Amin-ud-Din Khan Mr. Justice Jamal Khan Mandokhail Criminal Appeal No. 506 OF 2020 (Against the judgment dated 10.02.2017 of the Lahore High Court, Lahore passed in Crl. A. No. 1362 of 2013 and M.R. No. 303 of 2013) Muhammad Ajmal Appellant Versus The State Respondent For the appellant: Raja Rizwan Ibrahim Satti, ASC For the state: Mr. Muhammad Usman, Addl.P.G., Punjab For the complainant: Raja Shafqat Abbasi, ASC Date of Hearing: 07.10.2021 JUDGMENT SARDAR TARIQ MASOOD, J. The appellant Muhammad Ajmal faced trial in case FIR No. 278 dated 19.03.2010, offence under section 302 PPC, registered at police station Shorkot City, District Jhang. On the conclusion of trial, the learned Sessions Judge, Jhang vide judgment dated 11.09.2013, convicted the appellant under section 302 (b) PPC and sentenced him to death, with a direction to pay compensation of Rs.300,000/-, in terms of section 544-A, Code of Criminal Procedure, which shall be recoverable as arrears of land revenue. Aggrieved of his conviction and sentence, the appellant filed a criminal appeal before the Lahore High Court, Lahore. A murder reference was sent by the learned trial court for confirmation or otherwise of sentence of death of appellant. Through the impugned judgment, the learned High Court dismissed the criminal appeal and by converting sentence of death of the appellant into imprisonment for life, answered the murder reference in the negative. Benefit of section 382-B, Code of Criminal Procedure was extended to him. Thereafter, the appellant filed a jail petition before this court, wherein leave was granted on 20.08.2020. Hence, the instant criminal appeal. 2. Learned counsel for the appellant at the very outset contends that leave was granted on the point that whether the case of the appellant comes with the parameters of section 302 (c) PPC or not, hence he will confine his arguments only to that extent. Learned counsel for the Crl. A. No.506/2020 2 complainant contends that motive has been explained during trial and even in the FIR a dispute of “lain dain” was mentioned; further contends that appellant committed the murder in his own shop hence no further leniency can be extended to him. Learned counsel for the complainant relied upon the cases reported as Malik Muhammad Mumtaz Qadri Vs. The State and others (PLD 2016 SC 17), Muhammad Asif Vs. Muhammad Akhtar and others (2016 SCMR 2035) and Sardar Muhammad and another Vs. Athar Zahoor and others (2017 SCMR 1668). 3. We have heard the learned counsel for the appellant, learned Additional Prosecutor General, Punjab as well as the learned counsel for the complainant and perused the available record with their assistance. Before discussing the facts of the present case we would like to discuss the parameters which attracts section 302(c) PPC. An offence under section 302 (c) PPC will be attracted only in those cases, where exceptions to old provision of section 300 PPC stand attracted. Exception 4 of old section 300 PPC is reproduced as under: - “Exception 4:- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner. Explanation: It is immaterial in such cases which party offers the provocation or commits the first assault. So bringing the case under the above exception (culpable homicide not amounting to murder). It is required to be established that the case was one of sudden fight, taken place without any premeditation in the heat of passion upon a sudden quarrel and offender had not taken any undue advantage and must had not acted in a cruel or unusual manner. 4. In the case of Ali Muhammad v. Ali Muhammad and another (PLD 1996 SC 274) it was held that there should be no doubt that the cases covered by the exceptions to the old section 300 PPC read with the old section 304, therefore, are cases which were intended to be dealt with under clause (c) of the new section 302 of the PPC. Likewise in the case of Azmat Ullah v. the State (2014 SCMR 1178) it was held that : “It has already been held by this Court in the case of Ali Muhammad v. Ali Muhammad and another (PLD 1996 SC 274) that the cases falling in the exceptions contained in the erstwhile provisions of section 300, P.P.C. now, attract the provisions of section 302(c), P.P.C. The case in hand was surely a case of lack of premeditation, the incident was one of a sudden fight which was a result of heat of passion developed upon a sudden quarrel and no undue advantage had been taken by the appellant nor had he acted in a brutal or unusual manner. In these circumstances Exception 4 contained in the Crl. A. No.506/2020 3 erstwhile section 300, P.P.C. squarely stood attracted to the case in hand and, thus, the case against the appellant fell within the purview of the provisions of section 302(c), P.P.C.” The new section 302 itself divides qatl-i-amd for the purpose of punishment into three categories i.e. a) qatl-i-amd, punished with death as qisas; b) qatl-i-amd, punished with death or imprisonment for life as ta’zir c) qatl-i-amd, punished with imprisonment of either description for a term which may extended to twenty-five years, where according to the injunctions of Islam the punishment of qisas is not applicable. Admittedly, in the present case, parties were not inimical to each other and there was no previous ill will between the deceased and the appellant. In the FIR it is specifically mentioned that during repairing the tractor of the deceased, altercation took place between the deceased and appellant due to dispute of money. So at the spur of moment, suddenly altercation took place and according to prosecution’s own case, there were exchange of abuses between both of them and then Muhammad Ajmal appellant picked up a hatched lying in the shop and gave a solitary blow to Muhammad Naeem Khan deceased. Mehmood Khan, complainant while appearing in the court also categorically mentioned that “during repair of tractor there was altercation between Naeem Khan and Ajmal accused present in court on the transaction of some amount. Abusive language was used between them.” The whole prosecution during investigation remained silent regarding the detail of “lain dain” and an evasive motive was put up in the FIR but during trial Mehmood Khan made improvement that actually Ajmal appellant was under debt of Naeem Khan due to which this occurrence took place. He was duly confronted with his application Exb-PF (through which FIR was chalked out) where this fact was not mentioned. The said Mehmood categorically stated that: - “We visited workshop of the accused for repair of our tractor for the first time, on the date of occurrence”. The other alleged eye witness Changaiz Khan also stated as under: - “There was altercation and exchange of abusive language between Naeem Khan and Ajmal accused. All of sudden Ajmal after picking hatchet from his workshop made hatchet blow hitting on left side of the neck of Naeem Khan.” The above mentioned evidence of both the witnesses clearly indicate that the deceased went to the workshop of appellant, for repair of tractor, for the first time and in the absence of any previous ill will or grudge, at the spur of the moment due to “lain dain” probably regarding the payment of work done, by the appellant by repairing the tractor, suddenly there was Crl. A. No.506/2020 4 altercation, followed by exchange of abusive language between the appellant and deceased, all of a sudden this occurrence took place indicating that there was no premeditation and at the spur of the moment due to abusive language, in the heat passion, appellant gave a solitary blow with the hatched which was lying there. He did not repeat the blow although deceased was lying on his mercy. He did not take undue advantage nor acted in a cruel or unusual manner. So all the ingredients of above exception are born out from the prosecution cases and his case falls under section 302 (c) PPC. All the parameters mentioned above clearly indicate that it is a case falling under section 302 (c) PPC and not section 302 (b) PPC. The judgments relied upon by learned counsel for the complainant have different facts and in these cases the ingredient of Exception 4 of section 300 (old) PPC were not born out. In the case of Malik Muhammad Mumtaz Qadri (supra) this issue was not discussed likewise in the case of Muhammad Asif (supra) the accused while taking undue advantage gave successive blows to the deceased and also injured complainant and a passerby whereas in the case of Sardar Mahmood and another (supra) no ingredient of above exceptions were present nor born out from the prosecution case whereas in the present case as already discussed, ingredient of Exception 4 of section 300 PPC (old) are born out from prosecution’s case. Consequently, this criminal appeal is partly allowed. The conviction of the appellant is converted from section 302 (b) PPC to section 302 (c) PPC and his sentence is reduced to seventeen years R.I.. The compensation and sentence in default thereof awarded by the trial court and upheld by the High Court shall remain intact. Benefit of section 382-B Cr.P.C. shall also remain intact. Judge Judge Judge Bench-II Islamabad 07.10.2021 (Atif) APPROVED FOR REPORTING. Judge

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mr. Manzoor Ahmad Malik Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.518 of 2010 (Against the order dated 26.01.2009 passed by the Islamabad High Court Islamabad in Criminal Original No.73 of 2008) Securities and Exchange Commission of Pakistan …Appellant(s) Versus Nadeem H. Shaikh and others …Respondent(s) For the Appellant(s): Syed Hamid Ali Shah, ASC Mr. Tariq Aziz, AOR For Respondent Nos. 5,6,9,14,16: Mr. Tanvir-ul-Islam, ASC For Respondent Nos.18 & 19 Mr. Naeem Bukhari, ASC For Respondent No.3 Mr. Nayab Gardezi, ASC Date of hearing: 27.10.2020. ORDER Qazi Muhammad Amin Ahmed, J.- Impugned herein is order dated 21.1.2009, passed in Criminal Original No.73 of 2008 titled as Security & Exchange Commission of Pakistan Vs. Nadeem H. Sheikh & 32 others by the then Islamabad High Court to draw up proceedings against two from amongst a large array of the respondents under section 282-K of the Companies Ordinance, 1984. Exoneration of majority of the respondents was assailed through leave of the Court granted vide order passed as far back as on 14.12.2010. It is in this backdrop that despite repeated directions and opportunities generously granted by the Court from time to time, the appellant persisted in its failure to provide the addresses of the respondents so as to bring the issue, in the fullness of time, to its logical end, sooner rather than later; last order being on 25.02.2020 that runs as follows: “Ibrar Saeed, Law Officer appearing on behalf of the appellant requests for four weeks’ time. Time as requested is granted, but with a Criminal Appeal No.518 of 2010 2 caution that in case the appellant still fails to comply, the appeal shall stand dismissed. The notice stands discharged.” There is no improvement in the state of affairs even today; the learned counsel for the appellant, when confronted with the non-compliance, stated that he had furnished requisite information to the Advocate-on- Record, however, the latter when summoned, took a different plea, diametrically inconsistent with the position taken by the former and instead persuaded the Court for substitute service, a request that cannot be acceded to without disregard to the order earlier passed by this Court. Law assists the vigilant even in causes most valid and justiciable. Similarly, fixation of cases before Benches entails public expense and time, that must not be incurred more than once in the absence of a reason most genuine and compelling. Delay caused by the appellant in doing the needful is exasperating. We do not feel persuaded to allow this long drawn inaptitude to further encumber pendency of the Court. Dismissed. Judge Judge Judge Islamabad, the 27th October, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeals No.52-L & 53-L/2013 (Against the judgment dated 26.10.2010 passed by the Lahore High Court, Multan Bench in Criminal Appeal No.50/2006 and M.R. No.11/2006) Syed Anwar Ali Shah (in Criminal Appeal No.52-L/2013) The State through P.G. Punjab, Lahore (in Criminal Appeal No.53-L/2013) …Appellant(s) VERSUS Irfan Ali and another (in Criminal Appeal No.52-L/2013) Irfan Ali (in Criminal Appeal No.53-L/2013) …Respondent(s) For the Appellant(s): Nemo. (in Criminal Appeal No.52-L/2013) Ch. Muhammad Mustafa, DPG (in Criminal Appeal No.53-L/2013) For respondent-Irfan Ali: N.R. (in both cases) Date of Hearing: 25.6.2019. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Rasheedabad, a neighborhood within the remit of Police Station Lohari Gate, Multan was rocked with a massive blast at 4.25 a.m. on 7.10.2004, shortly after conclusion of a congregation; trapped in the gravity of explosion, 40 persons perished with scores of injured. An improvised device, planted in a vehicle, parked at the scene was ignited seemingly through remote control. The crime scene was littered with pieces of human bodies and the vehicle used in the blast; the attack was directed against a group with a particular persuasion conceivably by the opponents and this is so alleged in the crime report. A joint investigation team commenced the probe. The vehicle was identified as a Suzuki Mehran bearing registration No.MNV- Criminal Appeals No.52-L & 53-L/2013 - 2- 928; it was owned by Zeeshan Khalid, PW-34; according to his testimony, it was snatched on gunpoint on 6.10.2004 by three unknown persons; of them, he identified the respondent during test identification parade on 26.10.2004; next in line is Arif Saeed, PW-36; he was amongst the participants and had seen the vehicle being parked near the congregation at 12/12.30 midnight with four persons alighting therefrom; he too participated in the identification parade to point out the respondent as being one in the lot; Amjad Abbas, co-accused stayed away from law; from amongst the injured, 29 persons appeared before the Court without pointing out their fingers on the respondent. As per evidence furnished by Muhammad Iqbal, PW-74, owner of the guest house along with his clerk, Obaidullah, PW-80, the respondent had stayed during the night in the guest house; the latter failed to identify him and was declared hostile by the prosecution; former testified about the entries in the guests' register. It was primarily on the basis of aforesaid evidence that the respondent was indicted before an Anti-Terrorism Court, Multan; he was returned a guilty verdict on multiple counts accompanied by penalty of death on each vide judgment dated 1.9.2006 appeal wherefrom was allowed vide impugned judgment dated 26.10.2010 vires whereof are being assailed both by the complainant as well as the State. Counsel for the complainant is not in attendance and in the wake of multiple adjournments on his behalf, the case has been argued at length by the learned Law Officer. After grant of leave, despite issuance of process and repeated attempts in consequence thereof, the respondent is not in attendance and in this backdrop, we find it expedient to decide both the appeals, bound by a common thread, directed against the same judgment, with the assistance of the learned Law Officer, on the basis of available record. 2. The incident is a most unfortunate reminder of ubiquitous violence raging in an intolerant environment, threatening the very fabric of our society. It has to be countered and remedied with iron hands by exercising State authority at all Criminal Appeals No.52-L & 53-L/2013 - 3- levels. The fundamental imperative, magnitude of violence and colossal loss of lives consequent thereupon, notwithstanding, respondent's culpability has to be dispassionately adjudged on the touchstone of evidence presented by the prosecution during the trial. The High Court has viewed prosecution's evidence as being flawed and insufficient to drive home the charge beyond reasonable doubt and found it failing on as many as twelve points formulated in the impugned judgment. We independently, on our own, went through the record with the assistance of the learned Law Officer to re-examine/ re-evaluate each piece of evidence. Statement of Arif Saeed, PW-36 constitutes prosecution's mainstay; he claims to have seen the vehicle at 12/12.30 a.m. parked at the corner of the street; the respondent was amongst the passengers who alighted therefrom. It cannot be perceived that a white Mehran car would have been the only vehicle available at the scene, conspicuously noticed by the witness, that too, without being alarmed, given the perceived threat. It was a large gathering and not each participant attended it on foot. Though most fortunate, nonetheless, surprisingly the witness despite his being in close vicinity with the epicenter, survived unscathed; it is most intriguing that he withheld this vital information at the time of registration of case. Case of Zeeshan Khalid, PW-34 is not on much better footing either; according to him, his vehicle was snatched on 6.10.2004 at 7.00 p.m. whereas crime is reported on the following day at 1.20 a.m. Though, at first sight, ingeniously conceived, nonetheless, the script is poor. Such a massive blast could not be carried out in a short span of time, in a slipshod manner, naively being suggested; it required an elaborate logistical support, a time intensive exercise, to be carried out with discretion. Evidence of the owner of guest house, Muhammad Iqbal, PW-74 when juxtaposed with Zeeshan Khalid, PW-34 turns out as mutually destructive; seemingly, there was no occasion for the respondent to stay overnight at the guest house when according to the prosecution, during the same night, he was busy with his colleagues in snatching a vehicle; an attendant in the guest house was declared hostile upon his failure to oblige the prosecution; they did not participate in the identification parade as well. In this backdrop, we cannot accuse Criminal Appeals No.52-L & 53-L/2013 - 4- the High Court for perversity of reasons; on the contrary, we find the impugned view as prudently wise and possible. Appalled by inhuman brutality inflicted upon innocent citizens, nonetheless, we have not been able to find out any sustainable circumstance or factor to interfere with the conclusions drawn by the High Court so as to take a contra view. Criminal Appeals fail. Dismissed. JUDGE JUDGE Lahore, the 25th of June, 2019 Not approved for reporting Azmat Ali/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.52-P/2009 (Against the judgment dated 28.1.2004 of the Peshawar High Court, Peshawar passed in Cr. A. No.222/2003) State thr. Advocate General, KP, Peshawar …Appellant(s) VERSUS Hassan Jalil & others …Respondent(s) For the Appellant(s) : Mr. Qasim Wadud, Additional Advocate General, Khyber Pakhtunkhwa For the Respondent(s) : N.R. Date of Hearing : 29.04.2019 Judgment Qazi Muhammad Amin Ahmed, J. Through leave of the Court, impugned herein is the judgment dated 28.1.2004 by a learned Judge-in-Chambers of the Peshawar High Court, whereby finding of guilt, in a case of homicide by the learned Sessions Judge, Hangu has been set aside. This is in the backdrop of incident dated 30.3.1999, within the remit of Police Station Hangu, District Kohat, reported by Hassan Jalil’s mother-in-law, Noor Seema PW, who surprised the former while fleeing from the home, leaving behind his wife Mst. Perveen Bibi in a pool of blood along side the minors with multiple injuries; she pointed her finger upon the respondent. Upon indictment the respondent claimed trial that culminated in conviction with sentences consequent thereupon vide judgment dated 22.3.2003, subsequently reversed in appeal. 2. Learned Additional Advocate General, Khyber Pakhtoonkhwa has impugned the vires of impugned judgment of the learned High Court on the ground that in the face of overwhelming evidence there was no occasion for respondent’s Criminal Appeal No.52-P/2009 2 acquittal that too in the wake of his long standing absconsion as well as abysmal failure to explain as to what befell upon the household; occurrence being a day light affair there was no space to entertain any hypothesis of mistaken identity or given the relationship, substitution, it is next argued by the learned law officer. He has pointed out death of the children in consequence of injures suffered by them. 3. Respondent’s relationship with the deceased as well as the minors is not in dispute and so is homicidal death of his better half and receipt of injuries by the children, under the same roof; nonetheless in the absence of positive proof he cannot be held guilty for the crime either on the basis of suspicion, moral satisfaction or his failure to explain circumstances, leading to the calamity. Prosecution’s silence to explain as to what possibly prompted the respondent to wipe out his own family is also intriguing, though the complainant in the witness box, obliquely referred to a quarrel between the spouses, however, suggesting cordial relations in the same breath. Arrival of Noor Sima, PW at venue exactly at a point of time when the respondent allegedly did away with the deceased, in itself is a circumstance that reflects on the very genesis of the prosecution case. On an overall analysis of the prosecution evidence, the learned High Court found the prosecution case fraught from doubts, an analysis that cannot be viewed as unconscionable or imprudent, being well within the realm of possibility, calling for interference. Appeal is dismissed. JUDGE JUDGE Islamabad, the 29th of April, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE UMAR ATA BANDIAL MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL APPEAL NO.528 OF 2019 IN JAIL PETITION NO. 327 OF 2018 (Against the judgment of the Lahore High Court, Lahore dated 14.01.2015 passed in Capital Sentence Reference No. 10/2011, Criminal Appeal No.69-ATA/2011 and Criminal Appeal No.86- ATA/2011) Muhammad Hanif … Appellant(s) Versus The State … Respondent(s) For the Appellant(s) : Sardar Shahbaz Khosa, ASC Ch. Akhtar Ali, AOR For the (State) : Ch. M. Sarwar Sidhu, Addl. PG Date of Hearing : 29.09.2020 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J:- Criminal appeal, by leave of the Court, is directed against the impugned judgment of learned Division Bench of Lahore High Court, Multan Bench, dated 14.01.2015 passed in Capital Sentence Reference No.10/2011, Criminal Appeal No.69-ATA/2011 and Criminal Appeal No.86-ATA/2011 whereby the conviction of the appellant under section 302(b), 324, 186, 353, PPC read with section 7 Anti-Terrorism Act, 1997 awarded by the Special Judge, Anti-Terrorism Court, Dera Ghazi Khan vide judgment dated 08.08.2011 was upheld but his sentence of death under section 302(b) PPC and under section 7 Anti-Terrorism Act,1997 was converted into imprisonment for life. All sentences were ordered to run concurrently. The compensation awarded by the learned trial court and sentence in default thereof was Criminal Appeal No.528/19 in JP No.327/18 Muhammad Hanif vs, The State 2 ordered to be maintained. The benefit of section 382-B Cr.P.C. was also extended to the appellant. 2. As per prosecution story contained in the FIR No. 157/2009 dated 12.06.2009, offences under section 302, 324, 353, 186, 34 PPC read with section 7 Anti-Terrorism Act, 1997, registered with police station Civil Lines, D.G. Khan (Exh.PA) lodged at the instance of one Mushtaq Ahmad Shah (PW-5) is that on 12.06.2009 at about 9.30 a.m. the complainant came to visit his brother Iqbal Shah No. 916/HC at Sessions Court who was posted there, where he was assigned the duty of checking persons entering into the court premises. In the meantime, Rao Naveed alongwith Muhammad Hanif previously known to complainant came there on a motorcycle bearing registration 6938/DGK being driven by Rao Naveed Advocate while appellant was on back seat. Soon they tried to enter court premises without checking, Iqbal Shah 916/HC estopped them for personal search, in the meantime Muhammad Hanif after de-boarding from the motorcycle, picked out 30 bore pistol from right folder of his shalwar, fired upon Iqbal Shah (Head Constable) but it missed. The other police official Muhammad Mohsin 411/C who was sitting in a nearly rampart retaliated by fire shot towards the assailant which missed too. Rao Naveed decamped towards north whereas Muhammad Hanif (appellant) ran towards south while resorting to firing. Muhammad Akram SI, Muhammad Tariq HC, Zulqarnain Shah 840/C, Muhammad Mohsin 411/C and Iqbal Shah (HC) chased him. Iqbal Shah being ahead of others, was likely to apprehend Muhammad Hanif who took a turn and made a fire shot at Iqbal Shah which landed on left side of his chest who fell down on the ground. Muhammad Hanif ran towards Arts Council followed by other police officials. Iqbal Shah was taken to hospital in injured condition through ambulance and was medically examined by Dr. Criminal Appeal No.528/19 in JP No.327/18 Muhammad Hanif vs, The State 3 Majeed Ullah Buzdar at 09:55 AM. but he succumbed to injuries in the hospital. 3. After registration of the aforesaid case, the investigation was conducted by Muhammad Zafar SI who after the conclusion of the investigation found them involved in the crime hence they were challaned while placing their names in column No.3 of the report under Section 173 Cr.P.C. On receipt of challan, the learned Judge, Anti-Terrorism Court, Dera Ghazi Khan formally charge sheeted the appellant and his co- accused vide order dated 06.01.2020 to which they pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as 11 witnesses. The appellant was examined under Section 342, Cr.P.C, however, he opted not to appear in his defence, as his own witness in terms of Section 340(2), Cr.PC to disprove the allegations levelled against him, he even did not produce any defence evidence. 4. The learned trial court after conclusion of trial found that prosecution has succeeded to prove accusation against the appellant, hence convicted the appellant under section 302(b) PPC and sentenced to death with payment of compensation of Rs.1,00,000/- to the legal heirs of Muhammad Iqbal Shah deceased under section 544-A Cr.PC or in default whereof to further undergo S.I. for six months. The appellant was also convicted under section 324 PPC and sentenced to 10 years R.I. He was also convicted under section 186 PPC and sentenced to three months. He was convicted under section 353 PPC and sentenced to two years. The appellant was further convicted under section 7(a) of Anti-Terrorism Act, 1997 and sentenced to death with payment of compensation of Rs.2,00,000/- to the legal heirs of Muhammad Iqbal Shah u/s 544-A Cr.PC or in default whereof to further undergo S.I. for six months. Benefit of section 382-B Cr.P.C. was extended to the appellant. The co-accused of Criminal Appeal No.528/19 in JP No.327/18 Muhammad Hanif vs, The State 4 the appellant was acquitted of the charge by extending him benefit of doubt. 5. The appellant being aggrieved by the judgment of the learned trial court dated 08.08.2011 filed Criminal Appeal No.69-ATA/2011 before the Lahore High Court, Multan Bench whereas the learned trial court forwarded Capital Sentence Reference No.10/2011 for confirmation of the sentences of death inflicted upon the appellant whereas the complainant filed Criminal Appeal No.86-ATA/2011 against the acquittal of co-accused Rao Naveed. The learned Division Bench of High Court vide judgment dated 14.01.2015 dismissed the Criminal Appeal No.69- ATA/2011 filed by the appellant and that of complainant, however, maintained convictions under section 302(b), 324, 186, 353, PPC read with section 7(a) of Anti-Terrorism Act, 1997 awarded by the learned trial court but converted the sentence of death to imprisonment for life u/s 302(b) PPC and section 7 of Anti-Terrorism Act. The compensation awarded by the learned trial court and sentence in default thereof was maintained. The benefit of section 382-B Cr.P.C. was also given to the appellant. The sentences were also ordered to run concurrently. 6. Leave to appeal was granted by this Court vide order dated 28.10.2019 mainly on the ground that according to the record, the inter-se distance between the assailant and the deceased was 35 feet whereas the postmortem report clearly reflects that there was blackening around the injuries which do not commensurate with distance mentioned in site plan as per allegation levelled against the petitioner in the crime report. Further that there is contradiction qua the number of injuries sustained by the deceased. 7. At the very outset, learned counsel for the appellant states that both the courts below have not taken into consideration the evidence Criminal Appeal No.528/19 in JP No.327/18 Muhammad Hanif vs, The State 5 available on the record and the same has not been appreciated according to the established principles of “appreciation of evidence” enunciated by the superior courts from time to time. He argued that the presence of the prosecution witnesses of ocular account at the spot at the relevant time is doubtful, the complainant himself is a police officer, his presence at the spot do not inspire confidence. Contends that there are glaring discrepancies found in the statements of prosecution witnesses of the ocular account. Further contends that the inter-se distance disclosed in the site plan clearly contradict the ocular account. Contends that blackening is found around the injuries which suggests that the assailant has fired from a close range. Contends that though the petitioner was taken into custody soon after the occurrence but the fact remains that he was taken into custody from Arts Council which is at fairly long distance from the place of occurrence. Contends that the provision of section 7 of Anti-Terrorism Act, 1997 are not attracted in this case as occurrence has taken place outside the premises of the court and as such the trial in court established under Anti-Terrorism Act, 1997 was beyond its jurisdiction, hence, the conviction and sentence inflicted u/s 7 of the Anti-Terrorism Act, 1997 is not sustainable in the eye of law. The learned counsel further contends that co-accused of the appellant was acquitted of the charge and as such it has created a dent in the prosecution case, therefore, the petitioner is also entitled for the same relief while extending him benefit of doubt. 8. On the other hand, learned Law Officer appearing on behalf of the State vehemently opposed the contentions raised by the learned counsel for the appellant. It has been argued by learned Law Officer that in fact it is a case of highhandedness; the police official was done to death in a brutal manner while he was in uniform and performing his duties in Criminal Appeal No.528/19 in JP No.327/18 Muhammad Hanif vs, The State 6 official capacity. Further contends that conduct of the appellant is reckless; he has acted in a brutal manner twice; in the earlier phase he fired at police official which missed but when he was given hot pursuit by the police officials and he was likely to be arrested by the deceased, he fired at him on the most vital part resulting into instantaneous death. Further contends that the appellant was apprehended at the spot; the recovery of pistol from his possession further lend support to the prosecution version. Contends that the report of Forensic Science Agency is positive. All these facts clearly reflect that the petitioner was sole perpetrator of the occurrence; he has taken law into his own hands while committing the murder of a police official in uniform within the court premises. Finally argued that Anti-Terrorism Court being a special court was fully justified to entertain and take cognizance of such like offences being scheduled offence. Finally argued that prosecution has proved its case to hilt. 9. We have heard the learned counsel for the appellant, learned Additional Prosecutor General and perused the record with their able assistance. A close scrutiny of the record made it abundantly clear that the instant occurrence has taken place in the broad daylight whereas both the accused nominated in the crime report were previously known to the prosecution witnesses. The inter-se distance between the place of occurrence and police station is hardly 1 ½ miles. Undeniably, the incident has taken place in two phases, first in the court premises and the other when the police officials retaliated in the same coin, as a consequent both the accused tried to make their escape but in different directions. The police officials gave a chase to the accused persons and finally when Iqbal Shah 916/HC was likely to apprehend the appellant, he took a turn and fire upon him which pierced through the left side of his chest, resultantly Criminal Appeal No.528/19 in JP No.327/18 Muhammad Hanif vs, The State 7 he expired in hospital, however, the other police officials continued their chase and finally the appellant was taken into custody from the Arts Council where he had taken rescue. The pivotal questions which require determination by this Court are (i) jurisdiction assumed by court constituted under Anti-Terrorism Act (ii) the series of incident qua the occurrence relates to one and the same transaction (iii) contradiction in the inter-se distance between appellant and deceased and if any its legal consequences (iv) conviction and sentence under Anti-Terrorism Act. 10. For the determination of the aforesaid questions raised, it seems imperative to capsulate brief history of law emerged relating to terrorism. Our homeland is perhaps one of the country most affected by terrorism in the world. It began experiencing terrorism on a sustained basis in 1990 primarily in the form of sectarian killings. Thereafter the wave of terrorist activities further intensified upon a larger canvas. Now the target of terrorism was State functionaries, holding key positions, and every notable entity from every walk of life including law enforcing agencies. Use of explosive, sophisticated weapons, bomb blasting, target killing, abduction for ransom, extortion to generate funds for terrorist activities were very common features of crime oriented outlaws to disrupt the peace of society and create a sense of insecurity in public at large. Due to rise in terrorist activities, national economy had incurred huge loss estimated to be in billions of dollars. This situation forced the State functionaries to adopt extraordinary measure to preserve the authority of the State. The consensus has prevailed amongst the Government functionaries to deal with the law breakers with iron hands. Consequently, the Suppression of Terrorist Activities (Special Courts) Act of 1975 was promulgated with special emphasis qua:- (i). No adjournment in the court proceedings. Criminal Appeal No.528/19 in JP No.327/18 Muhammad Hanif vs, The State 8 (ii) Continuation of court proceedings even if the accused absconds, and (iii) Salutary principle burdened to prove guilt upon prosecution was reversed and accused was to prove his innocence. The courts established under the law of Suppression of Terrorist Activities remained in field for a considerable time but it could not deliver according to the expectations, as during proceedings before the courts of law many flaws surfaced before the superior courts, therefore, Suppression of Terrorist Activities (Special Courts) Act of 1975 was substituted by “Special Courts for Speedy Trial Ordinance 1987” The said legislation was introduced with different approach in which right of one appeal was withdrawn while the only appeal arising out of the judgment of trial court was to be heard by a Bench comprising of two Judges of respective High Courts whereas it was to presided over by a Judge of the Supreme Court. The courts established under the legislation could not continue for long hence, the framer of law introduced another act “Anti-Terrorism Act, 1997”. The preamble of the said legislation was more exhaustive, cyclopaedic and potent while the other provisions of the act, were framed to provide legal cover to all judicial norms relating to administration of criminal justice. The said legislation had already undergone judicial review since its inception by this Court in two cases reported as (PLD 1998 SC 1445” Mehram Ali and others vs Federation of Pakistan and others” and (PLD 2001 SC 607) “Khan Asfandyar Wali and others Vs Federation of Pakistan through Cabinet Division, Islamabad and others”. In the aforesaid judgments all those provisions which were found inconsistent to any provision of the “constitution” and established principle of “due process” were struck down, hence, the said legislation is in field to deal with such like cases in more judicious form. The paramount object of said legislation is spelled out from bare reading of “preamble” of the act which is reproduced as under:-. Criminal Appeal No.528/19 in JP No.327/18 Muhammad Hanif vs, The State 9 Anti-Terrorism Act, 1997 (Act No.XXVII of 1997) An Act to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences; It was duly published in Gazette of Pakistan, Extraordinary Part I, August 20, 1997 in the following terms: - No.F.9(39)/97-Legis.—The following Act of Majlis-e-Shoora (Parliament) received the assent of the President on 16th August, 1997, is hereby published for general information: - WHEREAS it is expedient to provide for the prevention of terrorism, sectarian violence and for speedy trial of heinous offences and for matters connected therewith and incidental thereto; The preamble of The Anti-Terrorism Act has broadly classified jurisdiction to entertain cases relating to (i) terrorism, (ii) sectarian violence and for speedy trial of (iii) heinous offences and for matters connected therewith and incidental thereto. Section 6 of the Anti-Terrorism Act, 1997 has defined and categorized cases falling within the definition of terrorism. For the purpose of the case in hand, the provision of sections 6(1)(2)(a)(m)(n)(3) are relevant to the facts and circumstance. 6. Terrorism.-(1) In this Act, “terrorism” means the use or threat of action where:- (2) An “action” shall fall within the meaning of sub-section (1), if it:- (a) involves the doing of anything that causes death; (m) involves serious coercion or intimidation of a public servant in order to force him to discharge or to refrain from discharging his lawful duties; (n) involves serious violence against a member of the police force, armed forces, civil armed forces, or a public servant; (3) The use or threat of use of any action falling within sub-section (2), which involves the use of firearms, explosive or any other weapon is terrorism, whether or not sub-section 1(c) is satisfied. The punishment of the aforesaid provisions is provided u/s 7 of Anti- Terrorism Act. Similarly, the 3rd Schedule relating to cognizable offences Criminal Appeal No.528/19 in JP No.327/18 Muhammad Hanif vs, The State 10 under the act are also notified, classifying the nature of offences attracting the provision of section 6 punishable u/s 7 of the Anti-Terrorism Act, the same is mentioned below: - THE THIRD SCHEDULE (Scheduled Offences) [See section 2(t)] 1. Any act of terrorism within the meaning of this Act including those offences which may be added or amended in accordance with the provisions of section 34 of this Act. 2. ……………….. 3. ……………….. [4. ……………….. (i) ……………….. (ii) ……………….. (iii) firing or use of explosive by any device, including bomb blast in the court premises.] [(iv) ……………….. (v) ……………….. Provision of Section 34 of the act authorized to amend, modify, add or omit any part of the schedule notified by the Government, as a consequent the schedule was reframed vide Notification No.SO(Judl- I)10(I-36(I)/2010 dated 5th September, 2012. While scanning the aforesaid provisions of Anti-Terrorism Act and the schedule appended, the offence committed by the petitioner, it is abundantly clear that a court established under the Anti-Terrorism Act was fully competent to entertain and take cognizance of the offence, therefore, the court constituted under the act was fully competent to proceed with the matter in view of the facts of the instant case narrated above. 11. There is no denial that the occurrence has taken place in two phases. During the course of investigation, it was found correct, hence, the same was incorporated in report u/s 173 Cr.P.C. The learned trial court while framing the charge against the appellant has also proceeded in the same manner. Firstly, he charged u/s 324/353/186 PPC read with Criminal Appeal No.528/19 in JP No.327/18 Muhammad Hanif vs, The State 11 section 7 of Anti-Terrorism Act, 1997 while the second limb the charge relates to offence u/s 302/34 PPC read with section 7 of Anti-Terrorism Act, 1997. The charge sheet framed by the learned trial court fully endorsed the investigation carried out by the investigating officer of the local police. Although the petitioner has committed the crime at two different places commencing from the court premises and finally when he reached in front of Rana Abdul Sittar Tea-stall which is at distance of 1 ½ kilometers it would be presumed one and the same transaction as per the spirit of law. As the act of the petitioner was in continuation till its conclusion and this aspect is fully covered by provision of section 235 Cr.P.C. which is reproduced as under: - “235. Trial for more than one offence. (1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. (2) Offence falling within two definitions. If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences. (3) Acts constituting one offence, but constituting when combined a different offence. If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for, the offence constituted by such acts when combined, and for any offence constituted by anyone, or more, of such acts. (4) Nothing contained in this section shall affect the Pakistan Penal Code, Section 71”. Therefore, the contention of the learned counsel that the occurrence has taken place away from the court premises has no force, the same is repelled. Criminal Appeal No.528/19 in JP No.327/18 Muhammad Hanif vs, The State 12 12. Leave to appeal was granted by this Court vide order dated 28.10.2019 mainly on two grounds:- (a) Inter-se distance between assailant and deceased. (b) Variation in number of injuries sustained by the deceased. Bare reading of the FIR reflects the entire situation qua the act of the appellant. ﺐﺟ ﺎﻧار رﺎﺘﺴﻟاﺪﺒﻋ ﭨﯽ لﺎﭩﺳ ﮯﮐ ﮯﻨﻣﺎﺳ ﮯﭽﻨﮩﭘ ﻮﺗ ﺪﻤﺤﻣ لﺎﺒﻗا هﺎﺷ مرداﺮﺑ ﮯﮔآ ﺎﮭﺗ روا ﺪﻤﺤﻣ ﻨﺣﯿﻒ ﻮﮐ ﮯﻧﺮﭩﮑﭘ ﻻاو ﮨﯽ ﺎﮭﺗ ہﮐ ﺪﻤﺤﻣ ﻨﺣﯿﻒ ﮯﻧ ﭘﯿﮯﮭﭽ ﮍﻣ ﺮﮐ ﻞﭩﺴﭘ ﮯﺳ ﺳﯿﺎھﺪ ﺮﺋﺎﻓ ﮐﯿﺎ ﻮﺟ لﺎﺒﻗا هﺎﺷ مرداﺮﺑ ﻮﮐ ﮯﻨﻣﺎﺳ ﺋﺎﺑﯿﮟ ﺗﺎﮭﭼﯽ ﺮﭘ ﺎﮕﻟ۔ During the trial proceedings, the prosecution witnesses of the ocular account PW-2 Muhammad Akram SI and PW-5 Mushtaq Ahmad Shah (complainant) had reiterated the contents mentioned in the crime report. Both of the witnesses of the ocular account are unanimous on the salient features of the prosecution version qua the time, mode and manner of the occurrence. Both witnesses were found trustworthy, reliable, independent and straightforward by the two courts below. The evidence of prosecution witnesses of the ocular account if found reliable, the same is sufficient to record conviction without any other corroborative piece of evidence. The contention raised by learned counsel that the ocular account is contradicted by the site plan qua the inter-se distance between the appellant and the victim, the law established by the superior courts is unanimous on this point. It is established that the statement of prosecution witnesses of the ocular account if contradictory to site plan it would have precedent over the distance mentioned in the site plan. Even otherwise, site plan is not a substantive piece of evidence having no legal sanctity. The purpose behind the preparation of site plan is to explain or give a glimpse of the occurrence in black and white enabling the concerned to appreciate the facts of the case in a more rational way. During the course of proceedings before the learned trial court, Dr. Majeed Ullah Buzdar appeared as PW.3. He has concurred the statement of prosecution Criminal Appeal No.528/19 in JP No.327/18 Muhammad Hanif vs, The State 13 witnesses as he observed blackening over the injuries which can be caused only from close contact, hence, the contents of FIR, statement of prosecution witnesses of ocular account corroborated by the medical evidence leaves nothing, contrary to challenge the intrinsic value of the prosecution version, hence, it has established the prosecution case beyond reasonable doubt. Reliance is placed upon PLD 1976 SC 234 (Taj Muhammad Vs, Muhammad Yusuf and 2 others) and 1998 SCMR 1823 (Sardar Khan and 03 others Vs, The State). The observation made in 1998 SCMR 1823 is as under: - “The site plans are, however, prepared only to explain or to appreciate the evidence on record in the case. Site plan by itself is not a substantive piece of evidence so that it could contradict the ocular account in the case.” 13. We have noticed that contradiction in number of injuries observed by doctor is mainstay of criticism by the learned counsel for the appellant. This aspect was also noted by this Court while granting leave in this case. This Court has already resolved this issue while delivering exhaustive judgments on the subject. Primarily the ocular account is always considered as principle evidence. The litmus test to evaluate the veracity of the prosecution witnesses of ocular account depends being independent, reliable, trustworthy and confidence inspiring. The evidence of the expert is only confirmative in nature. If there is contradiction in between the ocular account and medical evidence qua the number of injuries, the rule of thumb is that the preference would be given to the ocular account as the statement of prosecution witnesses of ocular account is always placed at a higher pedestal as compare to the medical evidence. The rationale behind such strict construction of the rule of thumb is that firstly, expert evidence is confirmatory in nature based upon opinion of an expert which can be influenced by so many factors (i) lack of expertise (ii) lack of knowledge (iii) defective technique (iv) variation in Criminal Appeal No.528/19 in JP No.327/18 Muhammad Hanif vs, The State 14 observation (v) lack of coordination with subordinate staff and possibility of obliging concession extended in favour of either of the party due to extraneous consideration. Reliance is placed upon 2002 SCMR 1568 (Amrood Khan Vs, The State), 1992 SCMR 2037 (Manzoor and others Vs, The State), 1990 SCMR 1272 (Muhammad Younas and another Vs, The State), NLR 2005 (Criminal) SC 501 (Shafqat Ali etc vs, The Stae), PLD 1976 SC 53 (Yaqoob Shah Vs, The State) and PLD 1993 SC 895 (Muhammad Hanif Vs, The State). The observation made in 1990 SCMR 1272 is as under: - “--- Doctor’s evidence --- There is no principle of law that in each and every case doctor’s evidence must have preference over direct evidence – If witnesses have seen the incident and have implicated the accused and their statements have been accepted by Court, then any conflict with the evidence of Expert does not detract the evidentiary value of the eye-witnesses – [Evidence].[p.1274]-D ” 14. Another unrebutted aspect in this case is that the appellant was apprehended at the spot by the police officials soon after the occurrence leaving no ambiguity qua the involvement of the petitioner in the aforesaid crime. The weapon of offence recovered from the petitioner was transmitted to the office of Forensic Science Laboratory without any delay in its dispatch. The report of Forensic Science Laboratory further confirmed that the empties recovered from the spot are matched with the weapon recovered from the appellant which is positive in nature. All these aspects further strengthen the prosecution case in its totality. Another aspect of this case which is being observed by this Court that the crime rate has at the verge of rise on day-to-day basis. The law breakers are adamants to take the law into their own hands such element, destroying the very fabric of the society must be dealt with iron hand. The instant occurrence is glaring example of the same and as such, no leniency can be extended to such like criminals. Criminal Appeal No.528/19 in JP No.327/18 Muhammad Hanif vs, The State 15 15. In view of the above facts and circumstances, we do not find any merit in this appeal, hence, dismissed accordingly. Judge Judge Judge Islamabad Announced on 05.09.2023 Judge Approved for reporting. “Athar”

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL APPEAL NOs. 531 & 532 OF 2019 AND CRIMINAL PETITION NOs. 339-L & 361-L OF 2015 (On appeal against the judgment dated 19.02.2015 passed by the Lahore High Court, Lahore in Criminal Appeal Nos. 868, 876 & 1037/2010) Muhammad Nawaz (In Cr.A. 531/2019) Muhammad Ilyas (In Cr.A. 532/2019) Irfan Ali (complainant) (In Cr.Ps. 339-L & 361-L/2015) … Appellants/Petitioner VERSUS The State through P.G. and others (In all cases) … Respondents For the Appellants: Ms. Asma Hamid, ASC Ch. Akhtar Ali, AOR (In Cr.As. 531 & 532/2019) For the Petitioner: Mir Sikandar Zulqarnain Saleem, ASC (In Cr.Ps. 339-L & 361-L/2015) For the State: Mr. Muhammad Jaffar, DPG Punjab Date of Hearing: 23.05.2022 JUDGMENT CRIMINAL APPEAL NOs. 531 & 532/2019 SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Appellants Muhammad Nawaz and Muhammad Ilyas along with eight co-accused were tried by the learned Anti Terrorism Court-III, Lahore, pursuant to a case registered vide FIR No. 400/2007 dated 23.05.2007 under Sections 302/324/148/149 PPC read with Section 7 of the Anti Terrorism Act, 1997, at Police Station Ferozwala, District Sheikhupura for committing murder of Ghulam Mustafa and Noor Muhammad and for causing injuries to Zeeshan, Ihsan, Rehmat Ali and Qamar Shah. CRIMINAL APPEAL NOs. 531 & 532 OF 2019 AND CRIMINAL PETITION NOs. 339-L & 361-L OF 2015 2 2. The facts as given in the judgment of the learned Trial Court are reproduced as under:- “2. The FIR Fx.PL was lodged by P.W-10 Irfan Ali complainant on 23.05.2007 at 8:25 am on the allegations that he is the resident of Bhulay Banawal. His brother Ghulam Mustafa is councilor of locality. There was dispute of land between Ghulam Muhammad etc. and Noor etc. residents of village and a case was pending in the court. His brother Ghulam Mustafa was asked for settlement of dispute. On 23.05.2007 at 7:00 am he was present in his house when Imran came there and told that Ghulam Muhammad etc. was giving physical torture to his brother Ghulam Mustafa, whereby, he along with Rehmat Ali, Ehsan Ali, Zeeshan Ali and Imran rushed to the place of occurrence, where Ghulam Muhammad etc. while armed with weapons were giving physical torture to Ghulam Mustafa and Noor. Ilyas accused armed with pump action gun, Nawaz s/o Sultan armed with gun 12-bore, Riaz armed with gun 12-bore, Imtiaz armed with rifle 44-bore, Zafar armed with gun 12-bore, Altaf armed with gun 12-bore, Ghulam Muhammad armed with carbine, Ishaque armed with pistol 30- bore, Bukhsha armed with carbine, Nawaz s/o Khan armed with pistol 30-bore all residents of village along with four un-known persons were present there. Ghulam Muhammad raised lalkara that all of them should be killed, whereupon, Ilyas accused made fire with pump action gun which landed near the right flank of Ghulam Mustafa; Nawaz made fire with gun 12-bore which also landed near the right flank of Ghulam Mustafa; Ilyas accused again made fire with pump action gun which landed on the right thigh of Ghulam Mustafa; Zafar accused made fire with gun 12- bore on Zeeshan which landed on his lower abdomen; Altaf made fire with gun 12-bore which landed on the right thigh of Zeeshan. Rest of the accused also made firing with their respective firearms and the fires hit on different parts of bodies of Ehsan Ali, Noor and Qamar Shah, as a result of which they were seriously injured. He saved his live by laying on the ground. The accused persons made reckless firing with their weapons and while raising lalkaras fled away from the spot. Grave fear, harassment and terrorism was created in the locality. He shifted the injured persons to Mayo Hospital. His brother Ghulam Mustafa succumbed to the injuries in the way, whereas, rest of the injured persons were got admitted in the hospital. Apart from him Ehsan, Rehmat, Zeeshan, Noor Muhammad, Qamar Shah and Imran saw the occurrence.” 3. During the course of investigation carried out by the local police, the appellants along with other co-accused except Bukhsha were found guilty and as such a report under Section 173 Cr.P.C. was submitted before the Trial Court. The learned Trial Court seized of the matter framed charge against 10 accused under Sections 302/324/148/149 PPC read with Section 7(a)(c)(h) of the Anti Terrorism Act. The learned Trial Court while CRIMINAL APPEAL NOs. 531 & 532 OF 2019 AND CRIMINAL PETITION NOs. 339-L & 361-L OF 2015 3 framing the charge specifically mentioned that all the accused while forming an unlawful assembly in furtherance of their common object have committed the crime wherein two persons lost their lives while four sustained injuries and as such committed an offence falling under Section 149 PPC. The charge framed against all the accused reads as under:- “MULTIPLE CHARGE Trial #: F.I.R. #: 400 Dated: 23.05.07 P.S: Feroz Wala, Distt. Sheikhupura. I, Shabbir Hussain Chattha, Judge Anti-Terrorism Court No.3, Lahore considering the material, placed before me, hereby charge you:- 1: Ghulam Muhammad s/o Sher Muhammad. Caste: Kharyl. r/o Bhullay Banay Wal 2: Imtiaz Ahmed s/o Ghulam Muhammad. Caste: Kharyl. r/o Bhullay Banay Wal 3: Muhammad Ilyas s/o Ghulam Muhammad. Caste: Kharyl. r/o Bhullay Banay Wal 4: Muhammad Nawaz s/o Sultan Ahmed. Caste: Kharyl. r/o Bhullay Banay Wal 5: Zafar Iqbal s/o Sardar Ahmed. Caste: Kharyl. r/o Bhullay Banay Wal 6: Sarfraz Ahmed s/o Sultan Ahmed. Caste: Kharyl. r/o Muhammad Wala Thana Budhana, Distt. Jhang. 7: Riaz Hussain s/o Muhammad Sharif. Caste: Hashmi r/o Saddiqua Colony, Ravi Road, Near Girls College, Lahore. 8: Altaf Hussain s/o Sher Muhammad Caste: Kharyl. r/o Bhullay Banay Wal 9: Mushtaq @ Eshaq s/o Sher Muhammad Caste: Kharyl. r/o Bhullay Banay Wal 10: Muhammad Nawaz s/o Khan Muhammad. Caste: Kharyl. r/o Bhullay Banay Wal (……accused under trial) on the following allegations:- Firstly, that on 23.05.07 at about 7:00 am within the area of Bhullay Banay Wal, P.S. Ferozwala, Distt. Sheikhupura, you all the accused named above along with your co-accused Baksha (since P.O) and 3 other unknown co-accused while armed with firearm weapons with common object constituted an unlawful assembly, which is an CRIMINAL APPEAL NOs. 531 & 532 OF 2019 AND CRIMINAL PETITION NOs. 339-L & 361-L OF 2015 4 offence punishable u/s 148/149 PPC, which is within the cognizance of this court being allied offence. Secondly, that on the same date, time and place you all the accused named above along with your co-accused Baksha (since P.O) and 3 other unknown co-accused while armed with firearm weapons with common object to kill and in the meanwhile you both the accused Ilyas & Nawaz s/o Sultan named above fired shots upon Ghulam Mustafa (since deceased) on different parts of his body as a result of which said Ghulam Mustafa died after some time of the occurrence and thus committed Qatl-e-Amd of Ghulam Mustafa which is an offence punishable u/s 302/149 PPC, which is within the cognizance of this court being allied offence. Thirdly, that on the same date, time and place you all the accused named above along with your co-accused Baksha (since P.O) and 3 other unknown co-accused while armed with firearm weapons with common object to kill and in the meanwhile you both the accused Ilyas & Nawaz s/o Sultan named above fired shots upon Ghulam Mustafa (since deceased) on different parts of his body as a result of which said Ghulam Mustafa died after some time of the occurrence and thus committed Qatl-e-Amd of Ghulam Mustafa also committed an act of terrorism as fear and insecurity was created amongst the people of locality, which is an offence punishable u/s 7(a), ATA, 1997, which is within the cognizance of this court being scheduled offence. Fourthly, that on the same date, time and place you all the accused named above along with your co-accused Baksha (since P.O) and 3 other unknown co-accused while armed with firearm weapons with common object to kill and in the meanwhile you both the accused Zafar & Altaf named above fired shots upon Zeeshan on different parts of his body, as a result of which said Zeeshan got injured, which is an offence punishable u/s 324/149 PPC, which is within the cognizance of this court being allied offence. Fifthly, that on the same date, time and place you all the accused named above along with your co-accused Baksha (since P.O) and 3 other unknown co-accused while armed with firearm weapons with common object to kill and in the meanwhile you both the accused Zafar & Altaf named above fired shots upon Zeeshan on different parts of his body, as a result of which said Zeeshan got injured, and thus by seriously injuring said Zeeshan also committed an act of terrorism as fear and insecurity was created amongst the people of locality, which is an offence punishable u/s 7(c), ATA, 1997, which is within the cognizance of this court being scheduled offence. Sixthly, that on the same date, time and place you all the accused named above along with your co-accused Baksha (since P.O) and 3 other unknown co-accused while armed with firearm weapons with common object to kill and in the meanwhile you both the accused Riaz & Sarfraz named above accused also fired shots upon Rehmat Ali, as a result of which said Rehmat Ali got injured, which is an offence punishable u/s 324/149 PPC, which is within the cognizance of this court being an allied offence. CRIMINAL APPEAL NOs. 531 & 532 OF 2019 AND CRIMINAL PETITION NOs. 339-L & 361-L OF 2015 5 Seventhly, that on the same date, time and place you all the accused named above along with your co-accused Baksha (since P.O) and 3 other unknown co-accused while armed with firearm weapons with common object to kill and in the meanwhile you both the accused Riaz & Sarfraz named above accused also fired shots upon Rehmat Ali as a result of which said Rehmat Ali got injured, and thus by injuring said Rehmat Ali also committed an act of terrorism as fear and insecurity was created amongst the people of locality, which is an offence punishable u/s 7(c), ATA, 1997, which is within the cognizance of this court being scheduled offence. Eighthly, that on the same date, time and place you all the accused named above along with your co-accused Baksha (since P.O) and 3 other unknown co-accused while armed with firearm weapons with common object to kill and in the meanwhile you the accused Ghulam Muhammad named above fired shot upon Ehsan Elahi as a result of which said Ehsan Elahi got injured, which is an offence punishable u/s 324/149 PPC, which is within the cognizance of this court being an allied offence. Ninthly, that on the same date, time and place you all the accused named above along with your co-accused Baksha (since P.O) and 3 other unknown co-accused while armed with firearm weapons with common object to kill and in the meanwhile you the accused Ghulam Muhammad named above fired shot upon Ehsan Elahi as a result of which said Ehsan Elahi got injured, and thus by injuring said Ehsan Elahi also committed an act of terrorism as fear and insecurity was created amongst the people of locality, which is an offence punishable u/s 7(c), ATA, 1997, which is within the cognizance of this court being scheduled offence. Tenthly, that on the same date, time and place you all the accused named above along with your co-accused named above while armed with firearm weapons with common object to kill and in the meanwhile you all the accused Riaz, Sarfraz & Imtiaz named above made fire shots upon Noor Muhammad on different parts of his body as a result of which Noor Muhammad got injured and later expired in Mayo Hospital, Lahore on 24.05.07 and thus committed Qatl-e-Amd of said Noor Muhammad, which is an offence punishable u/s 302/149 PPC, which is within the cognizance of this court being allied offence. Eleventhly, that on the same date, time and place you all the accused named above along with your co-accused named above while armed with firearm weapons with common object to kill and in the meanwhile you all the accused Riaz, Sarfraz & Imtiaz named above made fire shots upon Noor Muhammad on different parts of his body as a result of which Noor Muhammad got injured and later expired in Mayo Hospital, Lahore on 24.05.07 and thus committed Qatl-e-Amd of said Noor Muhammad, and thus committed an act of terrorism as fear and insecurity was created amongst the people of locality, which is an offence punishable u/s 7(a), ATA, 1997, which is within the cognizance of this court being scheduled offence. CRIMINAL APPEAL NOs. 531 & 532 OF 2019 AND CRIMINAL PETITION NOs. 339-L & 361-L OF 2015 6 Twelevethly, that on the same date, time and place you all the accused named above along with your co-accused named above while armed with firearm weapons with common object to kill & in the meanwhile your co-accused Baksha (since P.O) made a fire shot upon Qamar Shah as a result of which said Qamar Shah got injured, which is an offence punishable u/s 324/149 PPC, which is within the cognizance of this court being an allied offence. Thirteenly, that on the same date, time and place you all the accused named above along with your co-accused named above while armed with firearm weapons with common object to kill & in the meanwhile your co-accused Baksha (since P.O) made a fire shot upon Qamar Shah as a result of which said Qamar Shah got injured, and thus by injuring said Ehsan Elahi also committed an act of terrorism as fear and insecurity was created amongst the people of locality, which is an offence punishable u/s 7(c), ATA, 1997, which is within the cognizance of this court being scheduled offence. Fourteenly, that on the same date, time and place you all the accused named above along with your co-accused as mentioned above while armed with firearm weapons by making firing at the said place sent a wave of harassment amongst the people of locality, which is an offence punishable u/s 7(h) ATA, 1997, which is within the cognizance of this court being scheduled offence.” 4. In order to prove its case, the prosecution produced as many as 18 witnesses whereas one court witness was also examined. On the conclusion of the prosecution case, the accused persons got recorded their statements under Section 342 Cr.P.C. wherein they denied the allegations leveled against them. However, they did not opt to appear as witness under Section 340(2) Cr.P.C to disprove the allegations as a witness but preferred to produce Muhammad Saleem as DW-1 and relied upon certain documents Ex.DA to Ex.DH. On conclusion of the trial, the learned Trial Court vide its judgment dated 30.03.2010 found the appellants Muhammad Nawaz, Muhammad Ilyas and co-accused Sarfraz Ahmed guilty and as such they were sentenced to death on two counts each under Section 302/34 PPC. They were also directed to pay compensation amounting to Rs.200,000/- each to the legal heirs of each deceased. The compensation if not paid was ordered to be recovered as arrears of land revenue. The compensation if neither paid nor recovered, the convicts were ordered to further suffer six months SI each. Co-accused Zafar Iqbal and Altaf Hussain were convicted and sentenced to 10 years RI each under Section 324/34 PPC with a fine of Rs.50,000/- each or in CRIMINAL APPEAL NOs. 531 & 532 OF 2019 AND CRIMINAL PETITION NOs. 339-L & 361-L OF 2015 7 default whereof to further undergo one year SI each. Sarfraz Ahmad, who was sentenced to death, was also convicted under Section 324/34 PPC and sentenced to 10 years RI with a fine of Rs.50,000/- or in default whereof to further suffer one year SI each. However, the learned Trial Court while convicting the appellants and co-accused, acquitted co-accused (i) Ghulam Muhammad, (ii) Imtiaz Ahmad, (iii) Riaz Hussain, (iv) Mushtaq @ Ishaque, and (v) Nawaz s/o Khan Muhammad on the basis that the charge against them was not proved. 5. The appellants and co-accused Sarfraz Ahmed filed appeals against their conviction before the learned High Court whereas the State also challenged the acquittal of five co-accused before the High Court. In appeal, the learned High Court while maintaining the conviction under Section 302/34 PPC, altered the sentence of death into imprisonment for life to the extent of appellants before us. The amount of compensation and the sentence in default thereof was also maintained. Benefit of Section 382-B Cr.P.C. was also extended to the appellants. However, the learned High Court while handing down the judgment surprisingly acquitted all the accused under Section 148 PPC although they were convicted under Section 148 PPC by the Trial Court and were sentenced to three years RI each. The learned High Court also set aside the conviction and sentences recorded by the learned Trial Court against the co-accused Sarfraz Ahmed. The appeal against acquittal of five co-accused was also dismissed. Being aggrieved by the impugned judgment, the appellants/convicts filed Criminal Petition Nos. 337- L & 338-L/2015, out of which have arisen Criminal Appeal Nos. 531 & 532/2019. The complainant has also challenged the impugned judgment by filing Criminal Petition Nos. 339-L & 361-L/2015 seeking enhancement of the sentence awarded to the appellants and the above-named co-accused. 6. During the course of proceedings before this Court, a query was made to the learned counsel for the appellants qua the legality of conviction and sentence recorded by the Trial Court. Although it is an admitted fact that the learned Trial Court while framing charge against the appellants and other co-accused had charged them for the offences of CRIMINAL APPEAL NOs. 531 & 532 OF 2019 AND CRIMINAL PETITION NOs. 339-L & 361-L OF 2015 8 ‘common object’ falling under Sections 148/149 PPC but while deciding the lis each accused was dealt on the basis of ‘individual liability’ especially with reference to the injuries caused to PWs. The conviction was recorded against the appellants for the murder of two deceased persons. However, the applicability of Sections 148/149 PPC with reference to other co-accused was totally ignored and they were convicted on the basis of ‘individual liability’ without assigning a ‘definite finding’ regarding their participation as members of unlawful assembly and commission of offences in furtherance of their common intention falling under Sections 148/149 PPC. When the appellants and co-accused were specifically charged for having committed the crime in furtherance of their common object, the learned Trial Court ought to have given a definite finding regarding the applicability of Section 302/148/149 PPC to the co-accused qua the charge of murder. The learned courts below ignored the fact that all the accused committed their respective overt acts in furtherance of their common object, and as such they were part of the unlawful assembly, hence, the conviction and sentence recorded against the accused on the basis of individual liability in the absence of any “definite finding” to negate that the act of each individual was without premeditation, is beyond the scope of law. The act of each individual, if committed in furtherance of the common object, the facts are to be dealt conjointly to arrive at a conclusion in the spirit of law of the land. This query with reference to the facts and circumstances of the instant case could not be controverted by the learned counsel for the appellants. Even the learned Law Officer conceded that the learned Trial Court ought to have given a “definite finding” as to whether the occurrence was committed by the accused in furtherance of their common object or not. 7. This Court in a recent judgment dated 26.11.2020 passed in Criminal Petition Nos. 1371 & 1651-L of 2016 has given elaborative guidelines for the application of Section 302 PPC. It would be advantageous to reproduce the relevant portion of the judgment. The same reads as under:- “For the elaborative analysis qua the application of provision of Section 302 PPC, it would be advantageous to reproduce Section 300 PPC wherein ‘qatl-e-amd’, has been defined as under:- CRIMINAL APPEAL NOs. 531 & 532 OF 2019 AND CRIMINAL PETITION NOs. 339-L & 361-L OF 2015 9 Qatl-e-Amd: Whoever, with the intention of causing death or with the intention of causing bodily injury to a person, by doing an act which in the ordinary course of nature is likely to cause death, or with-the knowledge that his act is so imminently dangerous that it must in all probability cause death, causes the death of such person, is said to commit qatl-e-amd. It would also be in “fitness of things” to reproduce Section 302 PPC, which reads as under:- “302. Punishment of qatl-i-amd : Whoever commits qatl-e- amd shall, subject to the provisions of this Chapter be: (a) punished with death as qisas; (b) punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section 304 is not available; or (c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the Injunctions of Islam the punishment of qisas is not applicable. Provided that nothing in clause (c) shall apply where the principle of fasad-fil-arz is attracted and in such cases only clause (a) or clause (b) shall apply.” 9. The provision of Section 302 PPC provides punishment for the commission of qatl-e-amd. The punishment of qatl-e-amd has been categorized under the heads “(a), (b), (c)”. The provision of Section 302(a) PPC is reflection of punishment as provided in Islamic system by way of qisas. The word ‘qisas’ means return of evil for evil and it also denotes retaliation. Another word ‘retribution’ is also synonymous which means a punishment inflicted in return for the wrong and thus distinctively stresses the operation of the strict justice by administering merited punishment. The application of Section 302(a) PPC provides the return in the same coin persuading the offender to be done to death in the same manner he committed death of the fellow person. However, there are certain legal requirements for application of Section 302(a) PPC. Section 299 (k) PPC defines qisas in the following terms:- "qisas" means punishment by causing similar hurt at the same part of the body of the convict as he has caused to the victim or by causing his death if he has committed qatl- iamd in exercise Of the right of the victim or a wali', The Legislature has specifically laid down that the initiation of proceedings under Section 302(a) PPC is subject to qualifying prerequisites as laid down in Section 304 PPC. The same reads as under:- “304. Proof of qatl-i-amd liable to qisas, etc.: (1) Proof of qatl-i-amd shall be in any of the following forms, namely: - CRIMINAL APPEAL NOs. 531 & 532 OF 2019 AND CRIMINAL PETITION NOs. 339-L & 361-L OF 2015 10 (a) the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or (b) by the evidence as provided in Article 17 of the Qanun-e-Shalladat, 1984 (P.O. No. 10 of 1984). (2) The provisions of sub-section (1) shall, mutatis, mutandis, apply to a hurt liable to qisas. Bare perusal of the aforesaid provision broadly emphasis two fold conditions, (i) voluntary and true confession regarding the commission of the offence, (ii) qualifying the postulates of Article 17 of the Qanun-e-Shahadat Order, 1984. Article 17 of the Qanun-e- Shahadat Order, 1984, further emphasis the competence of a person qualifying it to be a truthful witness as required in accordance with the injunctions of Islam as laid down in Holy Quran and Sunnah. The primary/foremost qualification for a person to appear as a truthful witness in a case falling under ‘qisas’ is that he must fulfill the condition of tazkiya-tul-shahood. In ordinary meanings, it is an accepted rule of tazkiya-tul-shahood, that the credibility of the witness shall be examined through credible person of the same walk of life to which the witness belongs. Tazkiya-tul-shahood also entails an open and confidential inquiry regarding the conduct of the witness to ascertain whether the witness is credible or otherwise. The word ‘from the same walk of life’ is most essential attribute regarding this aspect. However, there are two modes provided to evaluate tazkiya-tul-shahood, (i) open, (ii) confidential. To ascertain the credibility of a witness on the touchstone of tazkiya-tul-shahood, the Judge is under obligation to inquire the credentials of the witness proposed to testify during the court proceedings to adjudge his truthfulness. Likewise, he can also adopt the way of secret inquiry to further satisfy his conscience about the credibility of the witness for that he can delegate/appoint someone else to ascertain the truthfulness of the person claiming acquaintance with the facts and circumstances of the case. There is no constraint that with the changing situation in the advanced era, the modern devices/technical assistance can also be utilized to persuade the piousness of the witness to arrive at a conclusion which endorses the believability qua the character of the witness by the Presiding Officer. 10. Section 302(b) PPC was made part of Section 302 PPC by the Legislature, which equates provision of Section 302(a) PPC regarding the infliction of sentence of death. In-fact there are two sentences provided under the head 302(b) i.e. death or imprisonment for life as Tazir. There is marked distinction qua consideration and application of sentence which is also based upon other considerations. The parameters are entirely on different benchmark wherein strict compliance of Section 304 PPC or applicability of Article 17 of the Qanun-e-Shahadat Order is not required. Likewise, the mode and manner of ascertaining the guilt and execution of the sentence is altogether different. The intention behind this was in-fact to meet the requirements CRIMINAL APPEAL NOs. 531 & 532 OF 2019 AND CRIMINAL PETITION NOs. 339-L & 361-L OF 2015 11 of law and order situation prevailing in the society with an intent not to let any crime unattended/un-addressed and further not to let any criminal escape from the clutches of law. The insertion of the word ‘tazir’ under the head 302(b) PPC has a specific significance. The word ‘tazir’ is defined in Section 299(l) as under:- "299(l) ta'zir" means punishment other than qisas, diyat, arsh, or daman” The literal meaning of word ‘tazir’ is chastisement. Undeniably the word ‘tazir’ means punishment inflicted by the Court other than ‘qisas’. As the punishment of ‘tazir’ is not prescribed by the Holy Quran or Sunnah, therefore, it cannot be as stern and stringent as that of qisas. It includes punishment of imprisonment, forfeiture of property and fine. A discretion has been left with the court assigned with the matter to decide and inflict either of the punishments commensurating with the overt act as surfaced according to facts and circumstances of the case. The Court of competent jurisdiction is fully justified to award sentence subject to assigning justiciable reasons to meet the ends of justice. The offence under Section 302(b) PPC is otherwise made compoundable by the application of Section 345(2) Cr.P.C, which in addition further qualifies that if all the legal heirs have compounded the offence, the Court is empowered to ensure that the parties may have buried the hatchets once for all. 11. Provision of Section 302(c) PPC is somewhat similar to the erstwhile Section 304 PPC. The provision of Section 302(c) in the original text was an exception of Section 302 PPC while following the requirements of erstwhile Section 304 PPC. This provision covers all those offences which were committed resulting into culpable homicide not amounting to murder and as such cannot be equated with the requirements for application of sentences as provided under Section 302(a)(b) PPC. Any occurrence though resulted into an act of homicide but it was committed without element of mens rea, pre-meditation or ill design, would squarely attract the provision of Section 302(c) PPC. The framers of the law while inserting the said provision provided sentence of imprisonment which may extend to 25 years. The sentence of 25 years is clothed with discretionary powers of the court contrary to sentences provided under Section 302(a)(b) PPC. Broadly speaking this distinction qua the discretionary power to inflict sentence is based upon the fact that the law makers were conscious of the situations like free fight, case of two versions, undisclosed story, sudden affair, question of ghairat, absence of mens rea, self defence and cases initiated due to the element of sudden provocation. In ordinary speech, the meaning of ‘provocation’ is said to be incitement to anger or irritation. In English law it has a meaning based on anger but it is a word used to denote much more than ordinary anger. To extenuate the killing of a human being provocation has always needed to be of a special significance. Throughout in the proceedings CRIMINAL APPEAL NOs. 531 & 532 OF 2019 AND CRIMINAL PETITION NOs. 339-L & 361-L OF 2015 12 of the cases it is seen to be something which incites immediate anger or "passion", which overcomes a person's self-control to such an extent as to overpower or swamp his reason. In other words provocation is when a person is considered to have committed a criminal act partly because of a preceding set of events that might cause a reasonable person to lose self control. Analyzing the concept of 'provocation in law under the Common Law of England, Lord Devlin, delivering the judgment of the Judicial Committee of the Privy council in Lee Chun-Chuen v. The Queen (1963 1 All ER 73) held as under:- "Provocation in law consists mainly of three elements the act of provocation, the loss of self-control, both actual and reasonable, and the retaliation proportionate to the provocation." So, it can be said that there are mainly four elements which need to be established to avail the defence of provocation i.e. (i) the provoking circumstances, (ii) the accused’s loss of self- control resulting from the provoking circumstances, whether reasonable or not; (iii) whether the provocation could have caused the ordinary person to lose self-control, (iv) the retaliation was proportionate to the provocation. Whether the accused’s loss of self-control was a result of the provoking circumstances is a subjective test. To prove the element of provocation, there are two more conditions i.e. (i) it should be prompt, and (ii) it was retaliated without inordinate delay. We have also noticed that apart from the circumstances narrated above inviting application of Section 302(c) PPC another situation has now erupted in the society having direct nexus with such like situations, i.e. a deliberate and malicious act intended to outrage religious feelings of any class of people by insulting its religion or religious rituals by use of derogatory remarks, which further extend the scope of cases falling under the ambit of sudden provocation. 12. In United Kingdom almost in similar situation, the framers of the law enacted an Act called “Homicide Act, 1957” in which they have dealt with such like situation under the ‘dictum,’ ‘diminished liability’. To evaluate such like situation, the mental faculty of the offender was to be gauged according to prevailing circumstances in which the offence was committed and as such it was given precedence over the already existing liability regarding culpable homicide amounting to murder. While drawing analogy from the said legislation, it can be safely assumed that the provisions of Section 302(c) PPC can also be equated/adjudged keeping in view the state of mind of the offender, his surrounding circumstances and the mode of commission of the offence. If those are adjudged conjointly, it would certainly imprint a better picture before the court of law to adjudicate the matter, which might commensurate with the allegation. 13. A careful analysis of the aforesaid categories falling under the provision of Section 302 PPC abundantly makes it clear CRIMINAL APPEAL NOs. 531 & 532 OF 2019 AND CRIMINAL PETITION NOs. 339-L & 361-L OF 2015 13 that the provision of Section 302(a) PPC is a distinct provision having different mode and manner of application with different considerations exclusively derived from the Islamic judicial system. The proceeding under the aforesaid provision is a rare phenomenon whereas the majority of the cases dealt with by the courts below fall under Section 302(b) PPC. As stated above, provision of Section 302(b) PPC provides two sentences i.e. death, (ii) imprisonment for life. Murder cases exclusively falling within the ambit of Section 302(b) PPC would be dealt with in a manner exclusively depending upon the number of assailants. Undeniably a single assailant can commit the aforesaid offence but if the number of assailants is more than one and the offence is committed in furtherance of common intention then the provision of Section 34 PPC would certainly attract. Similar to that if the tally of the accused is five or more and the offence is committed in furtherance of common object then the provision of Sections148/149 PPC would be applicable. The learned Trial Court seized of the matter depending upon the number of accused has to render a definite finding qua the applicability of Section 34 PPC (common intention) or Sections 148/149 PPC (common object). These two legal aspects are to be addressed with the application of the aforesaid provision of Section 302(b) PPC depending upon the number of assailants. It is bounden duty of the courts below to ascertain the aspect of common intention or common object primarily at the time of framing of the charge on the basis of contents of FIR, statements under Sections 161 & 164 Cr.P.C, if any, final report under Section 173 Cr.P.C and other attending documents collected by the Investigating Officer during investigation. The Trial Court is equally responsible to give a definite finding qua the applicability of Section 34 PPC or Sections 148/149 PPC at the time of conclusion of the trial while handing down the judgment. Now adverting to the moot point which was raised during the proceedings that if anybody is found guilty of commission of offence attracting the provision of Section 302(b) PPC, the co- accused can be saddled with the responsibility on the basis of individual liability or the whole occurrence has to be decided keeping in view that the offence was committed in furtherance of their common intention and the provision of Section 302(b) PPC would be applied conjointly against the persons joining hands falling under either of the categories i.e. common intention or common object falling under Section 34 or 148/149 PPC depending upon the number of persons facing charge. We may observe that any judgment which concludes the commission of offence falling under Section 302(b) PPC in furtherance of common intention or common object but decides the lis on the basis of individual liability would be squarely in defiance of the intent and spirit of law on the subject. 14. Section 302(c) PPC is an exception to the aforesaid provision under which in presence of a clear finding that the offence committed was not in furtherance of common intention or common object, however, the court otherwise comes to the conclusion that the prosecution has proved its case to the hilt CRIMINAL APPEAL NOs. 531 & 532 OF 2019 AND CRIMINAL PETITION NOs. 339-L & 361-L OF 2015 14 against the accused, the Court is under legal obligation to record conviction and sentence according to the role of every assailant constituting a criminal act according to overt act ascribed to him. The framers of the law while inserting Section 302(c) PPC wisely provided sentence which might extend to 25 years. It was done with an intent to provide an opportunity to the court of law to inflict sentence proportionate to the act of the assailant according to the facts surfaced during the course of proceeding. It is not out of context to highlight that the Trial Court prior to proceeding with the matter as stated above has to render a definite finding qua the fact that the incident is not result of common intention or common object which has a substantial importance to attract the aforesaid provision. Any slackness on the part of the court to ignore this aspect might infringe the rights of either of the parties involved in the process of law which is an essential attribute of court proceedings, denial of which might create imbalance, resulting into chaos in the society. The concept of safe administration of criminal justice and maintaining equilibrium qua the protection of legal rights is attire of the judicial system. Any defiance to the said balance might frustrate the confidence of the public which has to be at the highest pith in a civilized society. The courts of law can gain the confidence by imparting fair, equitable and justiciable dispensation of justice eliminating any possibility of discrimination on the basis of gender, race, religion, colour, caste, creed, status and language etc. The Judges have to discharge this arduous task with utmost care and caution so that public confidence in judicial process is not shattered.” 8. A bare perusal of the afore-referred judgment of this Court makes it clear that while dealing with murder cases falling within the ambit of Section 302 PPC, the Trial Court has to evaluate the act committed in the circumstances, which covers that it was committed in furtherance of common intention or on the basis of individual liability to press in the provision of Section 302(b) or 302(c) PPC and it has to give a definite finding qua the same. Any judgment which concludes that the offence falling under Section 302(b) PPC was committed in furtherance of common intention or common object but the sentence is inflicted on the basis of individual liability, the same would be squarely in defiance of the intent and spirit of law on the subject. However, if the Court comes to the conclusion that the elements of common intention and common object have not been established, then each accused would be dealt with, under the provisions of Section 302(c) PPC according to their own role and severity of allegations and would be sentenced CRIMINAL APPEAL NOs. 531 & 532 OF 2019 AND CRIMINAL PETITION NOs. 339-L & 361-L OF 2015 15 accordingly by the Court exercising its discretionary powers. This Court while holding so, has also given following guidelines to the Courts below:- “15. For what has been discussed above, we are inclined to issue following guidelines to the courts below to follow in future: i) that the Trial Court seized with the criminal trial is squarely required to adhere to the provision of Sections 265-C, 265-D Cr.P.C for the purpose of initiation of trial, before framing of charge as ordained to meet the spirit of the law of the land; ii) that the Trial Court is under obligation to fulfill the requirement as stated above, thereafter to frame charge, while minutely looking into the contents of the crime report, statement of the prosecution witnesses under Section 161 Cr.P.C, report under Section 173 Cr.P.C and all other documents appended with the challan with an intent to evaluate whether the criminal act as disclosed has been committed in furtherance of joining hands, which attracts the ingredients of common intention (Section 34 PPC) or common object (Section 148/149 PPC read with the substantive offence), if so, the charge would be framed accordingly; iii) that the Trial Court after recording of evidence, statement of the accused under Section 342 Cr.P.C would provide an opportunity to the accused to lead defence, if any, and further to appear under Section 340(2) Cr.P.C (if he intends to appear) & defence evidence, if any, thereafter, it is obligatory for the courts to give judgment with definite finding qua the element of common intention or common object with reference to the substantive offence; iv) that the Court proceeding with the matter, if reaches to the conclusion that the offence committed is an individual liability then the provision of Section 302(c) PPC would be squarely applicable and each accused would be dealt with according to the gravity of allegation, if any? Note: The Trial Court while rendering such finding has to disclose judicial reasoning.” 9. For what has been discussed above, these appeals are allowed and the impugned judgments of both courts are set aside. The matter is remanded back to the Trial Court for a limited purpose to re- CRIMINAL APPEAL NOs. 531 & 532 OF 2019 AND CRIMINAL PETITION NOs. 339-L & 361-L OF 2015 16 write the judgment on the basis of existing judicial record within two months strictly in accordance with law and the guidelines given in Criminal Petition Nos. 1371 & 1651-L of 2016. The appellants/accused would be dealt with as under trial prisoners before the Trial Court, during pendency of the lis before Trial Court. CRIMINAL PETITION NOs. 339-L & 361-L OF 2015 10. In view of the order passed in the connected Criminal Appeals, these petitions have become infructuous and are disposed of accordingly. 11. The above are the detailed reasons of our short order of even date. JUDGE JUDGE JUDGE Islamabad, the 23rd of May, 2022 Approved For Reporting Khurram

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Sardar Tariq Masood Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.541 of 2020 (Against the judgment dated 20.02.2017 passed by the Lahore High Court Lahore in Cr.A. No.356-J/2013 with M.R. No.376/2013) Rafaqat Ali …Appellant(s) Versus The State …Respondent(s) For the Appellant(s): Ms. Aisha Tasneem, ASC For the State: Mirza Abid Majeed, Deputy Prosecutor General Punjab Date of Hearing: 14.02.2022. ORDER Qazi Muhammad Amin Ahmed, J.:- Mirza Mubashar Baig, 23, was assaulted at 12:00 hours on 17.11.2006 within the remit of Police Station Islam Pura Lahore; rushed to the hospital in injured condition, despite multiple attempts by the Investigating Officer, he was opined as incapable to make a statement and finally succumbed to the injuries on 23.11.2006. Initial medical examination as well as autopsy report confirmed two fire shot wounds, accompanied by corresponding exits. Crime report lodged by deceased’s brother Muhammad Shakeel (PW-7) blamed one Lakha, subsequently identified as the appellant, accompanied by three unknown as suspects for the assault, in the backdrop of a previous altercation. As the investigation progressed, the Investigating Officer took on board one Faisal, lying in injured condition in the hospital as an accused on 25.11.2006; remainder of the accused were identified as Shahbaz Criminal Appeal No.541 of 2020 2 and Latif alias Mitha, subsequently let off/acquitted without challenge. The appellant was alone to receive a guilty verdict under clause (b) of section 302 of the Pakistan Penal Code, 1860, he was sentenced to death with a direction to pay compensation vide judgment dated 28.9.2013, altered by the High Court into imprisonment for life, vide impugned judgment dated 20.2.2017, vires whereof, are being assailed by leave of the Court. 2. Learned counsel for the appellant contends that prosecution case set up during the trial is diametrically different than the one laid with the police; that evidence disbelieved qua the identically placed acquitted co-accused has been relied upon by the courts below in contravention of law declared by this Court inasmuch as neither a vaguely formulated motive nor inconsequential recovery of weapon provided the requisite independent support; that injuries sustained by Faisal co-accused were suppressed by the prosecution, a circumstance that in retrospect spelt out a scenario, still a mystery. According to her, best evidence was withheld and it would be unsafe to rely upon the testimony of the witnesses one of whom is even not named in the crime report. The learned Law Officer faithfully defended the impugned judgment. 3. Heard. Record perused. 4. Complainant prosecuted his case through supplementary statements, subsequently recorded on two different occasions. Though the First Information Report is not to be taken as prosecution’s last word, nonetheless, a supplementary statement, essentially being a statement under section 161 of the Code of Criminal Procedure, 1898 cannot be read in continuation thereof and, thus, a heavy responsibility is cast upon the prosecution to satisfactorily explain its initial failure to nominate an accused in the crime report and the circumstances improving upon its knowledge so as to justify inclusion of the accused previously amiss. Similarly, prosecution’s preference for Muhammad Imran whose name did not figure in the crime report as a witness in preference to Behram Khan, abandoned during the trial, is a circumstance that clamours for explanation. Suppression of multiple firearm punctured wound endured by Muhammad Faisal co-accused, examined on the day of occurrence i.e. 17.11.2006, under a police docket, is yet another Criminal Appeal No.541 of 2020 3 aspect, no less intriguing. Acquittal of identically placed co-accused without challenge is another predicament confronting the prosecution in addition to massive improvements in the statement of the complainant, duly confronted in the witness-box. Argument that occurrence having not taken place in the manner as alleged in the crime report and reality still in the shroud, it would be unsafe to maintain appellant’s conviction on a speculative moral ground is an argument, found by us, as difficult to dismiss. There are doubts, more than one, each deducible from prosecution’s own evidence, benefit whereof, cannot be withheld. Appeal is allowed; impugned judgment dated 20.02.2017 is set aside; the appellant is acquitted from the charge and shall be released forthwith if not required to be detained. Judge Judge Judge Islamabad, the 14th February, 2022 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa Mr. Justice Maqbool Baqar Mr. Justice Syed Mansoor Ali Shah Criminal Appeal No. 547 of 2017 (Against the judgment dated 10.03.2014 passed by the High Court of Baluchistan, Quetta in Criminal Quashment Petition No. 428 of 2013) Muhammad Hanif …Appellant versus The State …Respondent For the appellant: Mr. Abdur Rehman Awan, ASC For the State: Syed Baqar Shah, State Counsel Mr. Aurangzeb, I.O. Date of hearing: 18.10.2018 JUDGMENT Asif Saeed Khan Khosa, J.: Criminal Miscellaneous Application No. 359 of 2018 This miscellaneous application is allowed and the document appended therewith is permitted to be brought on the record of the main appeal. Disposed of. Criminal Appeal No. 547 of 2017 2. The facts of this case are quite long but the long and short of the same is that in his capacity as an Additional Sessions Judge Criminal Appeal No. 547 of 2017 2 the appellant had convicted the Naib Court of his court namely Muhammad Akram for an offence under section 218, PPC but while deciding the appeal filed by the said Muhammad Akram the matter was remanded by the High Court to the trial court with a direction to the local police to reinvestigate the case and to resubmit a Challan against all the persons involved in the offence without specifying as to who those all persons were. As a result of the remand order the matter was reinvestigated by the local police and a fresh Challan was submitted before the trial court against one Zaman Khan but instead of entertaining the said fresh Challan the trial court directed the local police for resubmission of the Challan against all the persons involved, as had been directed by the High Court, once again failing to specify as to who all those persons were. Taking clue from the orders passed by the High Court as well as the trial court the local police formed an impression that the relevant courts wanted a Challan to be submitted against the present appellant as well and, thus, a fresh Challan was submitted before the trial court against him as well on the basis of which an order was passed regarding arrest of the appellant and his production before the trial court. The said order was challenged by the appellant before the High Court through a petition under section 561-A, Cr.P.C. and through the impugned order dated 09.11.2016 the said petition filed by the appellant was dismissed by the High Court. Hence, the present appeal by leave of this Court granted on 29.11.2017. 2. We have heard the learned counsel for the parties and have gone through the record of the case with their assistance. 3. The earlier order passed by the High Court on 13.06.2013 as well as the impugned order passed by the High Court on 09.11.2016, when read together with the order passed by the trial court on 16.06.2015, create an irresistible impression that the High Court as well as the trial court had insisted that the local police must file a Challan against the present appellant. Such approach of the High Court and the trial court was completely Criminal Appeal No. 547 of 2017 3 alien to the law as the law is settled by now that no court can insist that a Challan of a case must be submitted against any particular person and this legal position had been clarified by this Court in the case of Muhammad Nasir Cheema v. Mazhar Javaid and others (PLD 2007 SC 31). The said principle has also been reiterated by a Larger Bench of this Court in the recent case of Mst. Sughran Bibi v. The State (PLD 2018 SC 595). 4. It is intriguing to notice that another accused person in this case namely Muhammad Iqbal, placed in an identical predicament with the present appellant, had been granted the necessary relief by the same High Court through acceptance of his petition under section 561-A, Cr.P.C. vide judgment dated 30.12.2016 handed down by another Hon’ble Judge of the same High Court and the proceedings against the said co-accused had been quashed. It appears that different accused persons placed in the same position in the same criminal case had been treated differently by different Hon’ble Judges of the same High Court which is unfortunate, to say the least. 5. Investigation of a criminal case falls within the exclusive domain of the police and if on the one hand independence of the judiciary is a hallmark of a democratic dispensation then on the other hand independence of the investigating agency is equally important to the concept of rule of law. Undue interference in each others’ roles destroys the concept of separation of powers and works a long way towards defeating justice and this was so recognized in the case of Emperor v. Khwaja Nazir Ahmed (AIR 1945 Privy Council 18). The relevant paragraph from the judgment passed in that case is reproduced below: “Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India there is a statutory right on the part of the police under Ss. 154 and 156, to investigate the Criminal Appeal No. 547 of 2017 4 circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court under S. 561A. The functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course subject to the right of the Court to intervene in an appropriate case when moved under S. 491, Criminal P.C., to give directions in the nature of habeas corpus. In the case of a cognizable offence, the Court’s functions begin when a charge is preferred before it and not until then and, therefore, the High Court can interfere under S. 561A only when a charge has been preferred and not before. As the police have under Ss. 154 and 156, a statutory right to investigate a cognizable offence without requiring the sanction of the Court to quash the police investigation on the ground that it would be an abuse of the powers of the Court would be to act on treacherous grounds.” It appears that the High Court as well as the trial court in the present case had remained oblivious of the said constitutional and legal principle imbedded in our Constitution and the law. 6. For what has been discussed above this appeal is allowed, the impugned judgment passed by the High Court on 09.11.2016 in Criminal Quashment Petition No. 428 of 2013 is set aside, the said petition filed by the appellant before the High Court is allowed and the relevant proceedings against him presently pending before the trial court are quashed. Judge Judge Judge Islamabad 18.10.2018 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI MR. JUSTICE ATHAR MINALLAH CRIMINAL APPEAL NO. 560 OF 2020 (Against the judgment dated 24.01.2017 passed by the Lahore High Court, Lahore in Criminal Appeal No. 288- J/2013 and Murder Reference No. 304/2013) Sarfraz, and Allah Ditta …Appellant(s) VERSUS The State …Respondent(s) For the Appellant(s): Mr. Sagheer Ahmed Qadri, ASC For the State: Mirza Muhammad Usman, DPG For the Complainant: Nemo Date of Hearing: 02.01.2023 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Appellants were tried by the learned Additional Sessions Judge, Pindi Bhattian, pursuant to a case registered vide FIR No. 170 dated 13.06.2011 under Sections 302/34 PPC at Police Station Sukheke, Hafizabad for committing murder of Haq Nawaz and his wife Mst. Tharri Bibi, cousin and sister-in-law of the complainant. The deceased were also parents of appellant Sarfraz. The learned Trial Court vide its judgment dated 11.09.2013 convicted the appellants under Section 302(b) PPC and sentenced them to death on two counts. They were also directed to pay compensation amounting to Rs.300,000/- to the legal heirs of each deceased or in default whereof to further undergo SI for six months on each count. In appeal the learned High Court maintained Criminal Appeal No. 560/2020 -: 2 :- the conviction and sentence of death awarded to the appellants by the learned Trial Court. The amount of compensation and the sentence in default whereof was also maintained. Being aggrieved by the impugned judgment, the appellants filed Jail Petition No. 81/2017 before this Court wherein leave was granted by this Court vide order dated 09.09.2020 and the present appeal has arisen thereafter. 2. The prosecution story as given in the impugned judgment reads as under:- “2. Brief facts of the case as narrated in the FIR recorded on the written application (Ex PA) filed by Muhammad Bashir son of Rasheed Ahmad are that I am resident of Nawan Maneka and is agriculturist by profession. On 13.6.2011, my cousin Haq Nawaz son of Muhammad Hussain, caste Maneka Bhatti, resident of Deh informed me through telephone that his son Sarfraz is giving threats to him that he would kill him if land is not given to him. On which, I along with Muhammad Khan son of Saif Ali, caste Bhatti, resident of Deh came at Dera of Haq Nawaz (deceased), where he was present on roof. We sat at roof along with Haq Nawaz and his wife Tharri Bibi, when we were discussing the matter at about 12.30 night, Sarfraz Ahmad son of Haq Nawaz Bhatti, Allah Ditta alias Mangu son of Allah Yar, Muslim Sheikh and one unknown person came at roof of the Dera. Sarfraz demanded land from Haq Nawaz who refused and replied that you had already taken your share of land and sold the same and now you had no share in the land. On this, Sarfraz brought out pistol from his Shalwar and fired a burst hitting on head of Haq Nawaz who succumbed to injuries at the spot. Then Allah Ditta inflicted a hatchet blow on face of my Bhabi Tharri Bibi wife of Haq Nawaz, which cut left side of her mouth. Tharri Bibi also succumbed to injuries at the spot. Sarfraz committed murder of my cousin and Bhabi on abetment of his brothers-in-law Altaf Hussain, Ikram Hussain sons of Munawar and Munawar son of unknown, caste Maneka Bhatti, resident of Chak Qadir, Tehsil & District Hafizabad who told the accused that if he would murder his parents he could get the whole land. This occurrence was witnessed by me, Muhammad Khan and Arslan son of Haq Nawaz, when we tried to rescue the deceased, accused also gave threats to us and fled away from the spot; hence, this FIR.” 3. After completion of the investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. The prosecution in order to prove its case produced eleven witnesses. In their statements recorded under Section 342 Cr.P.C, the appellants pleaded their innocence and refuted all the allegations leveled against them. However, they did not opt to appear as their own witness on oath as provided under Section 340(2) Criminal Appeal No. 560/2020 -: 3 :- Cr.P.C in disproof of the allegations leveled against them. They also did not produce any documentary evidence. 4. At the very outset, learned counsel for the appellants argued that it was an unseen occurrence and the prosecution witnesses of the ocular account were not present at the spot. Contends that there are glaring contradictions and dishonest improvements in the statements of the eye-witnesses, which escaped the notice of the learned courts below. Contends that the prosecution witnesses were not residents of the place where the occurrence had taken place and they have not given any plausible explanation for their presence at the spot at the relevant time. Contends that the prosecution witnesses are interested, therefore, their evidence has lost its sanctity and the conviction cannot be based upon it. While reiterating the arguments at the time of grant of leave, he submitted that Arslan, son of the deceased, who was inmate of the house was given up and thus the prosecution withheld best evidence by not producing him. Contends that the prosecution has not been able to prove motive as alleged, which causes serious dent in the prosecution case. Contends that the occurrence took place in the dark hours of the night but no source of light has been mentioned by the prosecution. Contends that the recoveries of weapon of offence from the appellants are inconsequential and cannot be made basis to sustain conviction of the appellants. Lastly contends that the reasons given by the learned High Court to sustain conviction of the appellants are speculative and artificial in nature, therefore, the impugned judgment may be set at naught. 5. On the other hand, learned Law Officer vehemently opposed this appeal on the ground that the eye-witnesses had no enmity with the appellants to falsely implicate them in this case. It has been contended that the eye-witnesses have reasonably explained their presence at the spot at the relevant time, which is quite natural and probable and the medical evidence is also in line with the ocular account, therefore, the appellants do not deserve any leniency from this Court. Criminal Appeal No. 560/2020 -: 4 :- 6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. 7. It is cardinal principle of criminal jurisprudence that each criminal case has its own facts, which has to be dealt with according to its peculiar facts and circumstances. The present case is the glaring example of the same wherein the complainant of this case, who was not the inmate of the house rather was cousin of the deceased Haq Nawaz, had to lodge the crime report when admittedly he was residing six kilometers away from the place of occurrence. Prior to taking into consideration the contents of the crime report, few aspects of the case qua, (i) motive, (ii) time of occurrence, (iii) manner of occurrence, and (iv) subsequent events, are essential for their determination to arrive at a just conclusion in the interest of safe administration of criminal justice. Besides, as per contents of the crime report, the occurrence had taken place at 12:30 am on 13.06.2011 whereas the FIR was lodged at 01:30 am, which clearly reflects that the same was registered without any inordinate delay. Perusal of the crime report reflects that the aforesaid crime report was incorporated in response to Rapat No. 32 dated 13.06.2011, which was lodged in response to an application received by Arif Ishaq, ASI/Duty Officer of Police Station Sukheki on 13.06.2011. During the course of proceedings before the Trial Court, the complainant Muhammad Bashir (PW-1) stated before the Court that he moved an application (Ex.PA) for registration of case, which bears his signature, without disclosing time and the name of the subscriber of the application. He further stated before the Court that he proceeded towards Police Station on a motorbike along with Muhammad Khan (PW- 2) and reached there within 15 minutes after the occurrence i.e. approximately at 01:30 am. It is not mentioned anywhere that where and when this application was drafted when it is an admitted fact that the “Police Karvai” was conducted in Police Station. The whole proceedings narrated by Muhammad Bashir (PW-1) are squarely contradicted by Muhammad Khan (PW-2) as according to him Police arrived at the place of occurrence and completed every aspect of investigation i.e. (i) collection Criminal Appeal No. 560/2020 -: 5 :- of crime empties, (ii) blood stained earth from both places where deceased were done to death, (iii) recorded statements of PWs including Muhammad Khan (PW-2) at the spot by the Investigating Officer. Muhammad Sahara, Investigating Officer while appearing as PW-11 stated in the court that he visited the place of occurrence and performed “Police Karvai” as per rules. He also assigned Sikandar Hayat, Constable, to escort the dead bodies to mortuary for conducting post-mortem examination. All these statements are contradictory to each other on salient features, which creates dent in the genuineness of prosecution version, especially when it is an admitted fact that complainant is a distant relative residing at a distance of 6 kilometers while real son of deceased namely Arsalan who was inmate of the same house is absent in every material aspect of the case, which is a serious lapse. All this makes it clear that the complainant was not present at the place of occurrence at the relevant time. This Court being the Court to do complete justice under Article 187 of the Constitution of Islamic Republic of Pakistan, 1973, is under bounden duty to scrutinize each and every bit of “crime report”. At the same time, it is the duty of this Court to scrutinize other aspects surfaced during the course of proceedings before the Trial Court to decide the lis to avoid any injustice to either of the party. There is no denial to this fact that the occurrence had taken place in the odd hours of the night. However, no source of light has been mentioned by the Investigating Officer either in the FIR, rough site plan, scaled site plan or even during the course of proceedings before the Trial Court. 8. As far as ocular account furnished by Muhammad Bashir, complainant (PW-1) and Muhammad Khan (PW-2) is concerned, admittedly, both these witnesses were not residents of the locality and were residing at a distance of 5/6 kilometers away from the place of occurrence. It is an apathy to point out that not a single person from the inmates of the house or from surrounding inhabitants appeared in support of the prosecution version and the whole prosecution case is silent about this aspect of the matter. It is claim of Muhammad Bashir, complainant, that he had received telephonic call from the deceased at 05:00 pm that Criminal Appeal No. 560/2020 -: 6 :- his son i.e. appellant Sarfraz is demanding his share of land from inheritance in the lifetime of his father. He also threatened him that if he did not do so he would kill him. Thereafter, the complainant informed Muhammad Khan (PW-2) at about 06:00/06:15 pm and reached the dera/house of said Muhammad Khan at about 06:30 pm. As Muhammad Khan was taking meal, the complainant remained present at his house for about half an hour and then both of them went to the residence of deceased Haq Nawaz on a motorbike and reached there at 8/8:30 PM. We have noticed that the time consumed by them in approaching the place of occurrence could be hardly half an hour. However, according to complainant’s own showing, he reached the residence of the deceased after one and half hour. The whole record is silent as to what the PWs remained doing in the residence of the deceased during the interregnum period, which clearly reflects that they were not present at the place of occurrence, rather they managed to appear as witnesses after due consultation and deliberation. No record of either the deceased making the call or the complainant receiving the call was produced on record. During cross-examination, the complainant admitted that his sister was married with one Nasar and a dispute took place between the said Nasar and Haq Nawaz deceased over the property. The said Nasar had also caused firearm injury to the deceased and pertaining to said occurrence, FIR was also registered. He also admitted that in the said case, he had supported said Nasar and the occurrence had taken place due to his cause. The admission of the complainant clearly makes it essential that he was inimical towards the deceased Haq Nawaz. In such circumstances, it seems impossible that deceased would have invited an inimical person for his help. 9. Another very material aspect, which requires its interpretation because it can hit the root of prosecution case is that Arsalan, who was son of the deceased and was stated to have witnessed the occurrence, was given up at the time of trial. In view of the above, the claim of the defence that it was an unseen occurrence and the appellants have been made scapegoat with mala fide intention to grab the whole Criminal Appeal No. 560/2020 -: 7 :- ancestral property belonging to the deceased carries much weight. Article 129 of the Qanoon-e-Shahadat Order, 1984, empowers the court to presume the existence of any fact, which it thinks likely to have happened with regard to common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. In Mst. Zarsheda Vs. Nobat Khan (PLD 2022 SC 21), it was held that “adverse inference for non-production of evidence is one of the strongest presumptions known to law and the law allows it against the party who withholds the evidence”. In Muhammad Naeem Khan Vs. Muqadas Khan (PLD 2022 SC 99), this Court while relying on Article 129 of the Qanoon-e- Shahadat Order candidly held that “where a party keeps hold of the witnesses, the presumption would be that if such witnesses were produced, their testimony must be against him, therefore, adverse inference of withholding evidence goes against the party who failed to call the concerned person engaged in the transaction, who was in a better position to give firsthand and straight narrative of the matter in controversy”. In Mst. Shahnaz Akhtar Vs. Syed Ehsan ur Rehman (2022 SCMR 1398) this Court observed that “presumption is a rule of law that ascribes a straightforward probative denomination to accurate statistics and fosters a high degree of probability unless upset and annulled by evocative proof to the satisfaction of the Court and in the event of two equal presumptions, the Court may prefer that which best accords to the facts and circumstances of the case”. Reliance is also placed on Muhammad Jabran Vs. The State (2020 SCMR 1493) & Muhammad Sarwar Vs. Mumtaz Bibi (2020 SCMR 276). 10. As far as motive part of the prosecution story is concerned, appellant Sarfraz had been given his share of the land from inheritance by his father i.e. the deceased Haq Nawaz, which was allegedly sold out by him but still he was claiming his share. Perusal of the record clearly reveals that no details of the property, which was inherited by the deceased father and the share of the land which was earlier given to the appellant, has been given. It is now well established that if a specific motive has been alleged by the prosecution then it is duty of the prosecution to establish Criminal Appeal No. 560/2020 -: 8 :- the said motive through cogent and confidence inspiring evidence. Otherwise, the same would go in favour of the accused. Admittedly, the Investigating Officer had collected one crime empty from the place of occurrence on 13.06.2011. The weapon of offence i.e. .30 bore pistol was allegedly recovered on the pointation of the appellant Safraz on 28.06.2011. Thereafter, both the crime empty and the weapon of offence were sent to Punjab Forensic Science Agency together. This Court in a number of cases has held that if the crime empty is sent to the Forensic Science Laboratory after the arrest of the accused or together with the crime weapon, the positive report of the said Laboratory looses its evidentiary value. Sending the crime empties together with the weapon of offence is not a safe way to sustain conviction of the accused and it smacks of foul play on the part of the Investigating Officer simply for the reason that till recovery of weapon, he kept the empties with him for no justifiable reason. Blood stained hatchet was also allegedly recovered on the pointation of appellant Allah Ditta from his house after 15 days of the occurrence. Such recovery is not worth believing as it was not expected from the accused to keep blood stained weapon at his house as there was ample time to destroy or washout the said weapon. Even otherwise, admittedly the said house was a joint house wherein the other members of the appellant’s family were also residing. In these circumstances, the recoveries are inconsequential. 11. Mere heinousness of the offence if not proved to the hilt is not a ground to punish an accused. It is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. The peculiar facts and circumstances of the present case are sufficient to cast a shadow of doubt on the prosecution case, which entitles the appellants to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the accused. This Court in the case of Mst. Asia Bibi Vs. The State (PLD 2019 SC 64) while Criminal Appeal No. 560/2020 -: 9 :- relying on the earlier judgments of this Court has categorically held that “if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1995 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048).” The same view was reiterated in Abdul Jabbar vs. State (2019 SCMR 129) when this Court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye- witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution’s case automatically goes in favour of an accused. The conviction must be based on unimpeachable, trustworthy and reliable evidence. Any doubt arising in prosecution case is to be resolved in favour of the accused. However, as discussed above, in the present case the prosecution has failed to prove its case beyond any reasonable shadow of doubt. 12. For what has been discussed above, this appeal is allowed and the impugned judgment is set aside. The appellants are acquitted of the charge. They shall be released from jail unless detained/required in any other case. The above are the detailed reasons of our short order of even date. JUDGE JUDGE JUDGE Islamabad, the 2nd of January, 2023 Approved For Reporting Khurram

in THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Sardar Tariq Masood Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.585 of 2020 (Against the judgment dated 06.05.2015 passed by the Lahore High Court Multan Bench in Jail Cr.A. No.606 /2003) Shaukat Hussain …Appellant(s) Versus The State …Respondent(s) For the Appellant(s): Mr. Aftab Alam Yasir, ASC Syed Rifaqat Hussain Shah, AOR For the State: Mirza Abid Majeed, Deputy Prosecutor General Punjab Date of Hearing: 14.02.2022. ORDER Qazi Muhammad Amin Ahmed, J.:- Through leave of the Court impugned herein is judgment dated 06.05.2015 by a learned Judge-in-Chamber of the Lahore High Court Multan Bench Multan whereby guilty verdict returned by a learned Additional Sessions Judge at Rajanpur in a case of homicide vide judgment dated 30.06.2003 was maintained. It is alleged that the appellant, suspecting illicit liaison, strangulated Afshan Batool, no other than his better half, inside his home, at 10:00 p.m. on 15.11.2000. Incident was reported shortly after midnight by deceased’s paternal uncle Ghulam Shabbir (PW-7); according to him, the deceased, in the backdrop of above acrimony, was staying with her parents wherefrom the appellant after mediation took her to his home; complainant and his companion followed him and allegedly witnessed the assault at 10:00 p.m; it is their case that the appellant along with his brother Mushtaq Hussain, since acquitted, placed a noose around the neck with Crl. Appeal No.585-2020 2 Dopatta (P-7) and wire (P-8) and it is through constriction that the deceased was done to death within their view. 2. Learned counsel for the appellant contends that prosecution case on the face of it is extremely improbable inasmuch as not only the father of the deceased abstained from the witness box but medical evidence is also inconsistent with the ocular account. Arrival of the witnesses exactly at the fateful point of time when the deceased was allegedly being strangulated is a coincidence that seldom occur, argued the learned counsel. According to him, the position taken by the appellant sounds more convincing so as to let off him, particularly after prosecution’s failure qua identically placed co-accused. The learned Law Officer has faithfully defended the impugned judgment. 3. Heard. Record perused. 4. In incidents of domestic violence more so in the event of homicidal death of a wife in the house of her husband a heavy onus is cast upon the latter to satisfactorily explain circumstances leading to the tragedy. See Article 122 of the Qanun-i-Shahadat Order, 1984. However, in the present case, explanation furnished by the appellant, when juxtaposed with the prosecution evidence, warrants a serious reconsideration; according to him, the deceased had happily rejoined him, albeit to the annoyance of the complainant who otherwise harboured a grudge and desired to see the marriage on the rocks; in the nutshell, he shifted the blame on the complainant. What puts us on caution is absence of deceased’s father from the scene; he neither joined the investigative process nor opted to be in the witness-box; he would have been prosecution’s best choice to prove both desertion as well as calamity that struck her daughter; his silence is most intriguing, lending support, in retrospect, to the position taken by the appellant. Prosecution story is further negated by the autopsy report wherein on the neck a ligature mark is conspicuous by its absence; there is one bruise accompanied by four abrasion marks with an intact hyoid bone; though the death is opined as asphyxial, nonetheless, it does not appear to have occurred in the manner suggested in the crime report. It is also hard to believe that the witnesses four in number could not have intervened to rescue the deceased, statedly struggling to resist the assault within their view, close distanced at the crime Crl. Appeal No.585-2020 3 scene. Acquittal of co-accused, without challenge, is yet another predicament confronting the prosecution. Fraught with doubts, position taken by the appellant cannot be dismissed without being imprudent. Appeal is allowed; impugned judgment dated 06.05.2015 is set aside; the appellant is acquitted from the charge and shall be released forthwith if not required to be detained. Judge Judge Judge Islamabad, the 14th February, 2022 Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mushir Alam Mr. Justice Sardar Tariq Masood Mr. Justice Yahya Afridi CRIMINAL APPEALS NO. 599 TO 602 OF 2020 AND CRIMINAL PETITIONS NO. 1085 AND 1086 OF 2020 (On appeal against the judgments judgment dated 2.4.2020 passed by the High Court of Sindh, Karachi, passed in Sp. Crl. Anti-Terrorism Appeals No.66 & 67, 68/2002 and confirmation case No.12/2002) The State thr. P.G. Sindh (Crl. As. No. 599 to 601/2020) Ahmed Omar Sheikh (Crl. A. No. 602/2020) Ruth Pearly wife of Judea Pearl & another (Crl. Ps. No. 1085 & 1086/2020) Appellants/Petitioners Versus Ahmed Omar Sheikh (Crl. A. No. 599/2020) Fahad Nasim Ahmed and others (Crl. A. No. 600 to 601/2020) The State thr. Prosecutor General Sindh etc. (Crl. A. No. 602/2020 and Crl. Ps. No. 1085 & 1086/2020) Respondents For the appellant/State: Mr. Farooq H. Naek, Sr. ASC (Crl. As. No. 599 to 601/2020) Dr. Faiz Shah, P.G. Sindh and Crl. Ps.No. 1085 & 1086/20, Assisted by Resptd in Crl.A.602/20 and for Ms. Rahat Ahsan, Addl. PG Sindh R. No.1 in Crls.1085-1086/20) Mr. Hussain Bux Baloch, Addl. PG Sindh. Mr. Adnan Shuja Butt, ASC Mr. Feroze Jamal Shah, ASC Mr. Usman Waleed Sh, Advocate Mr. Muhammad Kassim Mirjat, AOR (Crl.As.602/20 also for Respdt Barrister Mehmood A. Sh, Sr. ASC in Crl.A.599/20 and Respdt. Mr. Mahmood A. Sheikh, AOR R.No.1&3 in Crl.A.600 & 601/20 Respdt in Crl.P.1085/20 and R.No.2 2&3 in Crl.P.1086/20) For the petitioner: Mr. Faisal Siddiqui, ASC (in Cr.P.1085 & 1086/20) Assisted by Ms. Sheza Ahmed, Advocate Ms. Amna Anjum, Advocate Mr. Saad Fayyaz, Advocate For the Respondents: Rai Bashir Ahmed, ASC (Crl.Ps.600 & 601/20 & R-2 & 3 in Crl.P.1086/20) Date of hearings : 25th Nov. 2020, 1st to 3rd, 8th to 10th, 15th to 17th Dec. 2020, 5th to 7th, 12th to 14th, 19th to 21st, 27th and 28th January 2021. Date of decision : 28-01-2021 - - - - - - - - - Crl.As.599-602/2020 etc 2 JUDGMENT SARDAR TARIQ MASOOD, J.- Through these criminal appeals No. 599, 600 and 601 of 2020 by leave of the Court the State through Prosecutor General Sindh has impugned the judgment dated 2.4.2020 of the High Court of Sindh, Karachi whereby sentence of death and other sentences of imprisonment, awarded by the trial Court to Ahmed Omer Sheikh were set aside and he was convicted under section 362 of the Pakistan Penal Code (PPC) and sentenced to seven years imprisonment whereas his co- accused were acquitted of all the charges. The parents of Daniel Pearl have also impugned the same judgment through criminal petitions No. 1085 and 1086 of 2020 against all the respondents. Ahmed Omer Sheikh through criminal appeal No.602 of 2020 has also impugned the judgment against his conviction and sentence of seven years rigorous imprisonment under section 362 PPC. 2. Precise facts of the case are that Fahad Nasim Ahmed, Syed Salman Saqib, Sheikh Muhammad Adil and Ahmed Omar Sheikh (Respondents in Criminal Appeals No. 599, 600, 601 of 2020, Criminal Petition No. 1085 and 1086 of 2020) and Ahmed Omar Sheikh (Appellant in Criminal Appeal No. 602 of 2020) were indicted in case FIR No. 24/20220 registered at Police Station Artillery Maidan, Karachi (South) on 4.2.2002 in respect of the offences under section 365-A of the PPC read with section 7(a) of the Anti-Terrorism Act, 1997 (ATA). Subsequently, sections 368, 302, 109, 201, 120-A/34 PPC and sections 7(a), 8(a)(b)(c), 11/A(a)(b)(c), 6(2)(b)(c)(e)(f) and 11/H (3-4), 11/V(1)(a)(b)(2), 11/L(a)(b), 7(a)(b)(2), 11/W(1)(2) and 7 of ATA were added. They were tried by the learned Judge Anti-Terrorism Court Hyderabad, Crl.As.599-602/2020 etc 3 Division and Mirpurkhas Division in respect of the offences mentioned above. After a full dressed trial, the trial Court vide judgment dated 15.07.2002 convicted Ahmed Omar Sheikh under sections 365-A, 302 and 120-A PPC read with section 6(a) ATA and sentenced him to death under section 7 of ATA, whereas Fahad Nasim Ahmed, Syed Salman Saqib and Sheikh Muhammad Adil were convicted under the same offences but they were sentenced to imprisonment for life. They were directed to pay Rs.5,00,000/- as fine or in default thereof to further undergo five years R.I. All the four accused were also directed to pay Rs.20,00,000/- jointly to be paid by them in equal shares to the widow of Daniel Pearl. The sentences of imprisonment were ordered to run concurrently. Benefit of section 382-B Cr.P.C. was also extended to them. (i) All the facts of the case and gist of the evidence had already been reproduced by the trial Court in its judgment dated 15.7.2002 which further have been elaborated through the impugned judgment, therefore, in order to avoid duplication and repetition, the facts of the case are not being reproduced. 3. Being aggrieved of the judgment of the trial Court, Ahmed Omar Sheikh filed Special Crl. Anti-Terrorism Appeal No.66/2002 before the High Court of Sindh whereas trial Court also sent confirmation case No.12/2002 for confirmation or otherwise of the death sentence of Ahmed Omar Sheikh. The respondents Fahad Nasim Ahmed, Syed Salman Saqib and Sheikh Muhammad Adil had also filed Spl. Crl. Anti-Terrorism Appeal No.67/2002 against their convictions and sentences. Whereas the State also filed Special Criminal Anti-Terrorism Appeal No.68/2002 for enhancement of sentence of Fahad Nasim Ahmed, Syed Salman Saqib and Sheikh Muhammad Adil from life imprisonment to Crl.As.599-602/2020 etc 4 death. A Division Bench of the High Court of Sindh at Karachi vide impugned judgment dated 2.4.2020 acquitted Fahad Nasim Ahmed, Syed Salman Saqib and Sheikh Muhammad Adil from all the charges and their convictions and sentences passed by the trial Court were set aside. Ahmed Omar Sheikh was also acquitted from all the charges, however, he was convicted under section 362 PPC and sentenced to seven years R.I. Benefit of section 382-B Cr.P.C. was also extended to him, whereas confirmation reference of his death sentence was answered in negative. Special Criminal Anti- Terrorism Appeal No.68/2002, filed by the State for enhancement of sentence was also dismissed. Hence the State has filed Criminal Appeals No.599 to 601/2020 and Ahmed Omar Sheikh filed Criminal Appeal No.602/2002 by leave of the Court granted on 28.09.2020 to re-appraise the entire evidence. On the other hand, Ruth Pearl and her husband Judea Pearl has also filed Criminal Petitions No.1085 & 1086/2020 against the impugned judgment of the High Court of Sindh. 4. We have heard the learned Special Prosecutor, Prosecutor General, counsel of Ruth Pearl and another, learned counsel for all respondents and learned counsel for appellant Ahmed Omer Sheikh. 5. Ahmed Omar Sheikh and other three were charge sheeted on 22.4.2002 by the trial Court. The first charge was framed against Ahmed Omar Sheikh as under:- “that you alongwith absconding co-accused hatched a conspiracy on 11.01.2002 in Room No.411, Akbar International Hotel, Rawalpindi, to abduct a Jewish American citizen, a professional journalist, belonging to the Wall Street General, USA for raising demand of ransom” 6. In order to prove this charge the prosecution mainly relied upon Asif Mehfooz Farooqui (PW-6) and Amir Afzal (PW-7). The Crl.As.599-602/2020 etc 5 prosecution is quite pertinent that conspiracy was hatched up on 11.1.2002, in Room No. 411, Akbar International Hotel, Rawalpindi. Asif Mehfooz Farooqui (PW-6), was the person who tried to manage a meeting of Daniel Pearl with one Pir Mubarak Shah Jilani. He went with Daniel Pearl and Arif (since tried separately and acquitted subsequently), to the residence of Pir Mubarak Shah Jilani, but it was told to them that the said Pir Mubarak Shah Jilani, after vacating that house had gone away about one month back. He remained in contact with Arif accused and ultimately, allegedly, he alongwith Daniel Pearl and Arif met with Bashir which according to prosecution was Ahmed Omar Sheikh. According to him they remained in Room No.411 for about three hours and the only purpose was to arrange a meeting with Jilani Sahib. During the trial he did not disclose the source that who had referred him to the said Arif. This witness categorically, during cross examination, stated that no conspiracy took place in Room No. 411 on 11.01.2002. He was not even aware of the address of accused Arif. He made improvements while making statement in Court and he was duly confronted. Although he joined the identification parade but he never prescribed any role of conspiracy of Ahmed Omar Sheikh while identifying him in the identification parade. This witness had not uttered a single word of conspiracy on the said date in Room No. 411, rather he denied the factum of hatching of any conspiracy there. Nobody from prosecution had alleged the hatching of conspiracy by the accused person. So the prosecution has failed to establish any conspiracy between Ahmed Omer Sheikh and Muhammad Arif accused regarding the abduction of Daniel Pearl. Crl.As.599-602/2020 etc 6 7. In order to prove that Ahmed Omar Sheikh stayed in Hotel Akbar International on 11.01.2002 in Room No.411, the prosecution produced Amir Afzal (PW-7), claiming that he was a receptionist at Akbar International Hotel. He produced photo copies of certain documents. On Exhibit 10/1, the name of waiter is not mentioned. On Exhibit 10/2 the position is same and the said column of waiter is also left blank. Even on Exhibit 10/3 the Room number is not mentioned. He admitted that N.I.C. was given by Muzaffar Farooqui @ Ahmed Omar Sheikh but copy of the said ID card was never retained. Even the NIC number was not mentioned in the record. He did not bring the record of the ledger account in the Court. The author of the said documents was not produced. In his statement before the police he had stated that Room No.417 was booked by Muzaffar Farooqui whereas in the Court he claimed that it was Room No.411. He was duly confronted with his previous statement recorded under section 161 Cr.P.C. where Room No.417 was specifically mentioned. He never claimed in his statement under section 161 Cr.P.C. that he could identify Muzaffar Farooqui. He had not stated in his statement under section 161 Cr.P.C. that a foreigner had a meeting with Muzaffar Farooqui. He did not produce any proof of his service in the Akbar International Hotel. He admitted that no statement from the management side was recorded by the police proving his appointment as Receptionist. The said witness also produced some Cash Memos but had not produced the Customer Register where all particulars of the customers staying there including name of customer, his parentage, ID Card number, Room number, time of arrival and departure etc is mentioned. The address of Muzaffar Farooqui is mentioned in Exhibit 10/4 as 18-Nishtar Block, Crl.As.599-602/2020 etc 7 Lahore. The Cash Memo (Exhibit 10/3) shows that Muzaffar Farooqui was occupying Room No. 5 and not 411. Although the exact address of Muzaffar Farooqui was mentioned on Exhibit 10/4 but the Investigating Officer, Rao Muhammad Aslam (PW-22) did not visit the said address i.e. 18-Nishtar Block, Lahore. The said witness claimed that he was receptionist of Akbar International Hotel, Rawalpindi but on a question he categorically stated that he even does not know the area in which the said Hotel was situated. This answer clearly indicates that a false witness was introduced as receptionist, to prove the factum of conspiracy in Room No. 411 of the said Hotel which was completely denied by Asif Mehfooz Farooqui (PW-6). (i) Amir Afzal (PW-7) never joined any identification parade to identify Ahmed Omar Sheikh as Muzaffar Farooqui. There is no explanation on record as to why identification parade of Ahmed Omar Sheikh was not arranged through this witness. Non- arranging of such identification parade had lost the veracity of the statement of this witness. Although this witness identified the accused in the Court but identification in the Court has no value because said witness appeared as PW-7 and prior to that six witnesses were examined by the prosecution and on each occasion the accused was brought with open face and the witness had all opportunity during this time to see the accused in Court. Even prior to that the accused was brought many a times before the Court during physical and judicial remand and there is every opportunity to every one to see him with open face. So the identification in the Court, by this witness, has no persuasive value. The prosecution failed to prove any conspiracy between Ahmed Omar Sheikh and his absconding co-accused Arif in Room Crl.As.599-602/2020 etc 8 No. 411 in Akbar International Hotel, Rawalpindi in presence of Asif Mehfooz Farooqui (PW-7). 8. The definition of criminal conspiracy under section 120-A PPC clearly indicates that two or more persons, if agree to do or cause to be done an illegal act or act which is not legal by illegal means, such an agreement is designated as criminal conspiracy. The punishment for conspiracy is given under section 120-B of the Pakistan Penal Code. So it is to be established by the prosecution that prior to the commission of offence two or more persons had entered into an agreement for committing an un-lawful offence. As already discussed, the statement of witness does not indicate that before hatching the conspiracy the accused entered into an agreement, written or oral, to do an illegal act and the crime was committed in pursuance of a conspiracy by the accused. To constitute a conspiracy meeting of two or more persons for doing an illegal act through illegal means is the primary condition. To ascertain conspiracy it has to be seen and keep in mind by the Court that the evidence, concerning each and every circumstance, must clearly be established by reliable evidence. There should be a prima facie evidence affording a reasonable ground for the Court to believe that two or more persons are member of the conspiracy and conspiracy consists not merely in the intention of two or more persons but in an agreement of two or more persons to do an unlawful act. 9. In this case, the other person Hashim @ Arif S/o Qari Abdul Qadeer, who allegedly was one of the conspirator in Room No. 411 alongwith Muzaffar Farooqui, was declared proclaimed offender when Ahmed Omar Sheikh and other three accused were being Crl.As.599-602/2020 etc 9 tried. It was the prosecution case at that time that said Arif was the person who was part of the agreement with Ahmed Omar Sheikh in hatching of a conspiracy. The learned counsel appearing on behalf of the State admitted that said Arif was subsequently arrested and was tried separately and on 23.10.2014, he was acquitted by the trial Court. The learned Prosecutor General, present in Court, categorically concedes that no appeal against his acquittal was ever filed. So his acquittal attained finality and story of hatching conspiracy of Ahmed Omar Sheikh @ Muzaffar Farooqui with him is falsified. The learned Division Bench of the High Court while discarding the charge of conspiracy against all the accused persons, had rendered valid reasons which are not open to any exception. (i) Although certain judgments qua conspiracy have been produced before us from either side but it is now settled that each criminal case is to be decided having regard to its own peculiar facts and circumstances. A test to be essentially applied in one case may absolutely be irrelevant in another, as the crimes are seldom committed in identical situations. The criminal cases are to be decided on their peculiar facts and circumstance as such the rules laid down in the earlier cases cannot be applied in the subsequent cases in the ‘Omnibus’ manner. In this behalf reliance can be made upon the cases of Khan alias Khani and another vs. the State (2006 SCMR 1744), Imtiaz Ahmad vs. the State (2001 SCMR 1334), Syed Saeed Muhammad Shah and another vs. the State (1993 SCMR 550) and Allah Wadhayo and another vs. the State (2001 SCMR 25). 10. According to prosecution and the FIR the occurrence took place on 23.1.2002 whereas report was lodged on 4.2.2002 at Crl.As.599-602/2020 etc 10 11:45 pm. i.e. the last hour of the day. Prior to that Mrs. Daniel Pearl has received email on 27-1-2002, including photographs showing her husband held in detention. She also received another email subsequently on 30-1-2002 through which her husband was threatened to kill within 24 hours, if the demands were not fulfilled. She did not report the matter when she received emails containing photographs of her husband while he was held in detention or even when she was threatened that her husband would be murdered within 24 hours. Her husband was under the thick clouds of danger but she kept quite for long twelve days, which cannot be overlooked merely because of gravity of the offence. Mrs. Daniel Pearl did not lodge the crime repot promptly and the matter was deferred till 4.02.2002, indicating that till that time consultation and deliberation was going on and FIR was chalked out after such consultation and deliberation, loosing its evidentiary value and creating serious doubt upon the prosecution story. 11. It was the case of Nasir Abbas (PW-1) that he on the asking of Faisal Afridi, another taxi driver, picked up a foreigner from Zam Zama street who was standing in front of his bungalow, where two ladies were also present, out of them one was foreigner, showing that Daniel Pearl was taken away from outside of his house by the Taxi Driver Nasir Abbas (PW-1) in presence of the complainant (Mst. Daniel Pearl) and another lady but surprisingly the FIR, which was chalked out on 04.02.2002, is silent regarding this episode. According to Nasir Abbas (PW-1) he had dropped the said foreigner in front of Village Restaurant after Maghrab prayer at about 7:00 pm. Subsequently on 5.2.2002 said Nasir Abbas (PW-1) while making statement under section 161 Cr.P.C. claimed that in Crl.As.599-602/2020 etc 11 his presence the said foreigner sat in a Toyota Corolla car after shaking hand with another person who had de-boarded from the said Toyota Corolla car. He categorically stated that on the following day i.e. 24.1.2002, he narrated all these facts to Mrs. Daniel Pearl, but surprisingly, the fact of shaking hand with the person who had de-boarded from Toyota Corolla car and going away with him in the said car is not mentioned by Mrs. Daniel Pearl while lodging the FIR. This aspect of the case clearly indicates that the Toyota Corolla car and shaking hand of Denial Pearl with the person who de-boarded from said Toyota Corolla was an afterthought story which was invented on 5.2.2002 i.e. after thirteen days of alleged abduction. It is also a circumstance that despite receiving threatening emails and photographs showing the captivity of Daniel Pearl, she did not lodge the report promptly and the matter was reported to police on 4.2.2002. Non- mentioning of important facts while lodging the FIR is also a circumstance indicating that subsequently false story was fabricated. Had the story of going of Daniel Pearl with a person who de-boarded from a Toyota Corolla car was in existence then the same must have been mentioned in the FIR particularly when Nasir Abbas (PW-1) claimed that he had given the details of this episode of last seen to Mrs. Daniel Pearl. The last seen evidence was available with Mrs. Daniel Pearl, well before lodging the FIR but was not mentioned therein which create serious doubt regarding this piece of evidence. 12. It is a circumstance that it was Faisal Afridi, another Taxi Driver, who booked the Taxi of Nasir Abbas (PW-1) as family of Daniel Pearl need two Taxis, one for Daniel Pearl and the other for Mrs. Daniel Pearl and another lady. Said Faisal Afridi never came Crl.As.599-602/2020 etc 12 forward to make statement to this affect. His evidence was withheld by the prosecution and an adverse presumption can be drawn against prosecution in view of Article 129(g) of Qanoon-e- Shahadat Order, 1984 (Order 1984). (i) It was the case of the prosecution that it was Faisal Afridi who after 23-1-2002, when Daniel Pearl went missing, contacted Nasir Abbas (PW-1). Nasir Abbas categorically admitted that when Faisal Afridi asked him about the whereabouts of said foreigner, he did not disclose the facts of last seen to Faisal Afridi. Had Nasir Abbas seen departure of Daniel Pearl with the accused in Toyota Corolla car, he must have told this fact to Faisal Afridi upon his inquiry. So it is quite clear that the said story of last seen was introduced on 5.2.2002, after arresting Nasir Abbas as suspect and thereafter his statement under section 161 Cr.P.C. was recorded regarding last seen. So the last seen evidence was not in existence, prior to 5.2.2002, that was the reason that same was not disclosed to any one by Nasir Abbas (PW-1) prior to 5.2.2002 and this fact is further strengthened from the fact that this piece of evidence is missing in the FIR, creating serious doubt regarding this piece of evidence. 13. Learned counsel appearing for the parents of Daniel Pearl states that the delay in lodging the FIR can be explained by Mrs. Daniel Pearl and non-mentioning of the last seen evidence in the FIR, is also explainable by her but surprisingly the evidence of Mrs. Daniel Pearl was also withheld. She was an important witness. She is the lady who allegedly received emails on 27.1.2002 and 30.1.2002. She did not explain in the FIR as to from which Laptop/Computer she received the said emails. Allegedly she handed over the copies of the said emails to the police and same Crl.As.599-602/2020 etc 13 were taken into possession through a Mushirnama, but surprisingly said Mushirnama was not signed by her. The FIR is silent regarding the above queries regarding emails. She never produced the Laptop/Computer through which she received the emails. The prosecution even did not produce any person who might have delivered the said emails to her. So withholding her evidence and her non-appearance is a circumstance indicating that till lodging of FIR the story of last seen was not in existence and till that time the only information with Mrs. Daniel Pearl was that the taxi driver dropped him in front of Village Restaurant. It is also a circumstance that during investigation the Police Officer, especially the Investigating Officer, tried to meet Mrs. Daniel Pearl but could not make contact with her. Even he visited the house of Mrs. Daniel Pearl but she did not come out from her house. So one thing is quite clear that subsequently she did not join the investigation despite many efforts made by Hameedullah Memon/IO (PW-23) to join her into the investigation. It was only Mrs. Daniel Pearl who could have produced the source or Gadget/Computer on which the said email was received. Her Computer or Computer of any other person through which said emails were received to her, could have led to the Computer from which these emails were originated and were received. She did not come forward even to join the investigation to support the prosecution version. During trial she made request that her statement be recorded through commission. She ensured that she will appear before the Court with the permission of the doctor, but it was the prosecution who ultimately given her up under the pretext of her pregnancy. The accused party has also filed application under section 540 Cr.P.C. for summoning the said Crl.As.599-602/2020 etc 14 witness to which prosecution opposed and ultimately she was given up. The prosecution can made application for postponing the trial till the recovery of Mrs. Daniel Pearl and her availability but even such effort was not made. She was the most important witness. She being complainant could have explained that how she has received the emails, from where she collected those emails, she could also produce the Computer through which she or anyone else had received the emails. Although she handed over the said emails to the Police but she did not come forward to support the said facts and even she did not sign the Mushirnama of said emails. The said star witness, after lodging of the FIR and handing over the emails to the police, never joined the investigation and never supported the case of prosecution and her evidence was totally withheld by the prosecution. An adverse presumption can easily be drawn against prosecution that had she appeared in Court, she would have not supported the prosecution version. The delay in lodging of the FIR for 12 days and withholding the evidence of such important witness, are the circumstances, creating serious doubt on the prosecution story, qua last seen and abduction. 14. So far abduction of Daniel Pearl is concerned the prosecution has mainly relied on two witnesses namely Nasir Abbas (PW-1) and Jameel Yousaf (PW-2). Nasir Abbas claiming himself to be a taxi driver and denied to be a police official but Hameedullah Memon (PW-23) categorically mentioned while making statement in the court that he searched H.C. Nasir Abbas, driver. This fact clearly indicates that prosecution produced a police employee by posing him as a taxi driver and that was the reason he was not aware of locations of certain places which being Crl.As.599-602/2020 etc 15 a taxi driver he should have known. He admitted that he was not aware of the location of Laxon Building. He again said that he was not aware of the location of CPLC Secretariat. This fact clearly indicates that he was a made up taxi driver by the prosecution. It is a circumstance that he was arrested on 5.2.2002 and thereafter his statement under section 161 Cr.P.C. was recorded as a witness in this case. He being a prosecution witness appeared as PW-1 and claimed that he dropped a white passenger in front of Village Restaurant and on the rear side of Metropole Hotel. According to him, he dropped the said person at 7:00 pm. He also admitted that during those days Maghreb prayer was offered at about 6 pm. So inference can be drawn that darkness had prevailed. It was the duty of the prosecution to show the source of light at the place of occurrence, in the Mushirnama which was prepared on 5.2.2002 after about twelve days of dropping of foreigner on the rear side of the Metropole Hotel. The said Mushirnama is also silent regarding any source of light at the place of occurrence. No site plan was prepared of the place of alleged abduction to indicate any source of light there. Although the said witness improved his version while making a volunteer statement that light was available there but this improvement was an attempt to cover up said lacuna. He was never shown the photograph of Daniel Pearl to identify as to whether the said foreigner was actually Daniel Pearl or not. He did not disclose the feature of the person, with whom foreigner had gone, to Mrs. Daniel Pearl or anyone else, hence any subsequent identification has lost its value as held in the case of Mian Sohail Ahmed and others vs. the State and others (2019 SCMR 956) . The claim of this witness till 5.2.2002 was that he simply dropped the foreigner in front of Village Restaurant and nothing else. He did not Crl.As.599-602/2020 etc 16 disclose this important piece of evidence to Faisal Afridi when he inquired from him on 24.1.2002 about the foreigner. He simply told him that he dropped him in front of Village Restaurant. It is a circumstance that till 4.2.2002 the stance of Mrs. Daniel Pearl was that Nasir Abbas told him that he dropped the foreigner in front of Village Restaurant and she mentioned the same fact after about twelve days of the alleged abduction and did not mention this important piece of evidence of last seen in the company of the accused in the FIR. If any person in routine inquires from any person regarding departure of a person whom he had taken away then the facts that where he dropped him or from where he was taken away by any other person, must have been disclosed by that person. As this important piece of evidence was not mentioned in the FIR so out of necessity Nasir Abbas claimed that he had disclosed the evidence of last seen to Mrs. Daniel Pearl. Had such disclosure was made, Mrs. Daniel Pearl must have mentioned the same in the FIR. Non-mentioning of the important piece of evidence of last seen in the FIR clearly negated the version of Nasir Abbas regarding last seen evidence which for the first time was recorded in his statement on 5.2.2002 that too after his arrest in the police station. So no reliance can be placed on such piece of evidence. If he had seen the foreigner going alongwith someone in a Toyota Corolla car, he should have informed this fact to Faisal Afridi who, for the first time, contacted him and asked regarding the whereabouts of said foreigner. Had the foreigner, as alleged by prosecution, been abducted or taken deceitfully in presence of this witness, it would have been expressly mentioned in the FIR as while lodging the FIR Mrs. Daniel Pearl also referred the disclosure of Nasir Abbas regarding dropping of foreigner in front of Village Crl.As.599-602/2020 etc 17 Restaurant. The arrest of Nasir Abbas prior to his making statement under section 161 Cr.P.C. also indicate that he became a false witness under the coercion and threat by the investigating officer and he also lost his credibility on this score only. (i). Daniel Pearl before dropping in front of Village Restaurant had visited the office of Jameel Yousaf (PW-2) and there he received calls on his cell phone and he assured the caller on the telephone that he is aware of his appointment at 7:00 pm. He confirmed his appointment and told the caller on the other side that he was very close to the office of the caller. So the said call clearly indicates that from the office of Jamil Yousaf (PW-2) Daniel Pearl had to go to some office where he had an appointment. Jamil Yousaf (PW-2) collected the call data from Mobilink and got information that the said calls were made from mobile phone having number 0300- 2170244. The alleged call data of Daniel Pearl shows that he also received a call from 7:11 pm to 7:15 pm (after his alleged abduction) from an unknown number and the prosecution never investigated as who was on the said unknown number which normally is used by the agencies. Jamil Yousaf (PW-2) claimed that he inquired from Mrs. Daniel Pearl regarding phone number 0300- 2170244 and according to her the said number was of Imtiaz Siddiqui, a proclaimed offender having family relations, as his mobile number was even known to the wife of Daniel Pearl. The said facts clearly indicate that Daniel Pearl had an appointment with Imtiaz Siddiqui in his office which was near to the office of CPLC and who was in contact with Daniel Pearl. So the story of abduction by an unknown person through deceitful mean was never brought on the surface prior to twelve days of his alleged abduction which fully indicate that said piece of evidence was Crl.As.599-602/2020 etc 18 created on 5.2.2002, that too after the arrest of Nasir Abbas (PW-1) as suspect so no reliance can be placed on the statement of Nasir Abbas (PW-1) for conviction with regard to abduction, as done by the Division Bench of the High Court. The above important aspects of the case have totally been ignored by the High Court while convicting Ahmed Omer Sheikh under section 362 PPC which is not a penal section rather it was just a definition of abduction. The High Court had not pinpointed the penal section under which the conviction was passed as under section 362 PPC no sentence was provided. So convicting and sentencing under section 362 PPC was also not warranted rather illegal because prosecution failed to prove the alleged abduction of Daniel Pearl. 15. The prosecution also alleged that Denial Pearl was subsequently murdered and the charge was also framed to that extent. For proving the murder one video clip/tape was produced during the evidence through John Molligan (PW-12). According to him he was briefed in connection with this case on 01-2-2002. He claimed that said video clip/tape (Article-1) was delivered to him in Sheraton Hotel, Karachi, by someone. He had not disclosed the source, even the nationality of the said source was not disclosed by him. The original video clip/tape was never produced during the trial and it was Johan Molligan (PW-12) who prepared four copies of the said video clip/tape and delivered one copy to the investigating agents. Admittedly in this video clip/tape the pictures of respondents are not shown, only one hand was shown while slaughtering the neck of Denial Pearl and then holding his head. The said hand does not lead to identity of anyone. Even otherwise, the said video does not lead to any identity of the culprits. The said video clip/tape was delivered to Johan Molligan (PW-12) on Crl.As.599-602/2020 etc 19 21.2.2002, when all the four accused were already in police custody. It is a circumstance that no forensic analysis of the said video clip/tape was ever carried out nor any report of expert was ever produced by the prosecution. If original video clip/tape was delivered to the Investigating Officer then the forensic test could have been done. The original clip/tape was willfully withheld by John Molligan (PW-12) and an adverse presumption can be drawn that the said clip was the result of camera trick. It was not established by the prosecution that as to when and by whom the original video clip was prepared, so there is possibility that the same was prepared in the lab or some film studio. In absence of any forensic report about the genuineness or otherwise of the said video clip, no reliance can be placed on such piece of evidence as held in the case of Asfandyar and another vs. Kamran and another (2016 SCMR 2084). (i) The guidelines to prove an audio or video in the Court are elaborated in the case of Ishtiaq Ahmed Mirza and others vs. Federation of Pakistan (PLD 2019 SC 675). After referring numerous judgments on the point following guidelines were incorporated in the said judgment. Relevant para is reproduced as under: “11. The precedent cases mentioned above show that in the matter of proving an audio tape or video before a court of law the following requirements are insisted upon: * No audio tape or video can be relied upon by a court until the same is proved to be genuine and not tampered with or doctored. * A forensic report prepared by an analyst of the Punjab Forensic Science Agency in respect of an audio tape or video is per se admissible in evidence in view of the provisions of section 9(3) of the Punjab Forensic Science Agency Act, 2007. * Under Article 164 of the Qanun-e-Shahadat Order, 1984 it lies in the discretion of a court to allow any evidence becoming available through an audio tape or video to be produced. Crl.As.599-602/2020 etc 20 * Even where a court allows an audio tape or video to be produced in evidence such audio tape or video has to be proved in accordance with the law of evidence. * Accuracy of the recording must be proved and satisfactory evidence, direct or circumstantial, has to be produced so as to rule out any possibility of tampering with the record. * An audio tape or video sought to be produced in evidence must be the actual record of the conversation as and when it was made or of the event as and when it took place. * The person recording the conversation or event has to be produced. * The person recording the conversation or event must produce the audio tape or video himself. * The audio tape or video must be played in the court. * An audio tape or video produced before a court as evidence ought to be clearly audible or viewable. * The person recording the conversation or event must identify the voice of the person speaking or the person seen or the voice or person seen may be identified by any other person who recognizes such voice or person. * Any other person present at the time of making of the conversation or taking place of the event may also testify in support of the conversation heard in the audio tape or the event shown in the video. * The voices recorded or the persons shown must be properly identified. * The evidence sought to be produced through an audio tape or video has to be relevant to the controversy and otherwise admissible. * Safe custody of the audio tape or video after its preparation till production before the court must be proved. * The transcript of the audio tape or video must have been prepared under independent supervision and control. * The person recording an audio tape or video may be a person whose part of routine duties is recording of an audio tape or video and he should not be a person who has recorded the audio tape or video for the purpose of laying a trap to procure evidence. * The source of an audio tape or video becoming available has to be disclosed. * The date of acquiring the audio tape or video by the person producing it before the court ought to be disclosed by such person. * An audio tape or video produced at a late stage of a judicial proceeding may be looked at with suspicion. * A formal application has to be filed before the court by the person desiring an audio tape or video to be brought on the record of the case as evidence.” In view of above guidelines, in the present case, the piece of evidence i.e. video clip is not worthy of reliance and the High Court has rightly discarded this piece of evidence while assigning valid reasons. Crl.As.599-602/2020 etc 21 (i) The learned counsel for parents of Daniel Pearl argued that the defence counsel summoned the body of Daniel Pearl when it was flashed in the news paper that his dead body was recovered from a grave in a courtyard. Although the said postmortem report was summoned on the application of the defence but the said postmortem report was of an unknown person whose parentage and other particulars were not known. It is also not brought on record by the prosecution that as to how and on whose pointation the said dead-body was recovered. No effort was made by the prosecution to produce the doctor who conducted the postmortem and prepared the report. At this stage, learned counsel for parents of Daniel Pearl cannot claim that the flaws and lacunas left by prosecution due to their negligence be filled by invoking jurisdiction under section 428 Cr.P.C. The Courts remain impartial and they are not meant to fill up the lacunas/gaps and other infirmities left by either party. So prosecution remained fail to establish the factum of murder through cogent evidence. 16. So far the confession or admission of Ahmed Omar Sheikh before the police personnel i.e. Faisal Noor, Inspector CIA (PW-4), Ather Rasheed Butt, DSP (PW-5), Rao Muhammad Aslam, Inspector (PW-22) and Hameedullah Memon, Inspector (PW-23) is concerned, the same was objected to when these witnesses appeared during trial and claimed that accused Ahmed Omar Sheikh made admission regarding the guilt of offence in their presence when he was produced before Mr. Arshad Noor Khan, Administrative Judge, Anti-Terrorism Court Karachi, on 14.2.2002. According to them, the accused disclosed these things to the judge in their presence. The objection regarding Articles 38 and 39 of the Crl.As.599-602/2020 etc 22 Order 1984, was not decided then and there. All the four witnesses who were police officials claimed that the accused Ahmed Omar Sheikh while in police custody made confession in their presence. Articles 38 and 39 of the Order 1984 are quite clear on the subject and such admission, in view of the above said Articles, is inadmissible. Both the Articles of the Order 1984 are re-produced as under : - “38. Confession to police-officer not to be proved.- No confession made to a police-officer shall be proved as against a person accused of any offence. 39. Confession by accused while in custody of police not to be proved against him.- Subject to Article 40, no confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.” 17. In the present case admittedly, the admission of Ahmed Omer Sheikh was before the police and whether he made any admission before the Administrative Judge, is not supported by the order of the judge nor the said Judge came forward to confirm such admission. Admittedly, at that time, he was in police custody and was handcuffed. Any confession, even recorded under section 164 Cr.P.C. will become invalid if the accused is produced before the Magistrate remained in handcuff while making such confession. 18. The plain reading of the above quoted Articles clearly indicate that confession made by any person while he is in custody of the police officials shall not be proved as against a person/accused of any offence. Learned counsel for parents of Daniel Pearl tried to argue that in the presence of the Administrative Judge the said words regarding admission were uttered by the accused but the orders on the remand paper, passed by the learned Administrative Judge does not find mention Crl.As.599-602/2020 etc 23 any of such admission made by Ahmed Omar Sheikh. The said Administrative Judge was never produced by the prosecution to prove such admission or confession. Although the order written by the Administrative Judge contains certain other conversation made by Ahmed Omar Sheikh with the Judge as he asked the learned judge for providing him medical treatment including the medicines, but order is silent regarding any utterance of Ahmed Omar Sheikh qua his admission. Earlier the defence filed an application to the High Court for transfer of the case from the Court of Mr. Arshad Noor Khan as according to depositions of PW-4, PW-5, PW-22 and PW-23, the said Judge became a witness. The prosecution conceded before the High Court and the case was transferred to another judge. Application for summoning of the said judge was filed to make statement in the Court. The said Administrative Judge (Mr. Arshad Noor Khan) was summoned and he appeared before the Court on 22.5.2002, for making statement but the prosecution refused to produce him as witness and categorically stated that they do not want to produce him. Learned counsel for parents of Daniel Pearl tried to argue that in view of Article 4 of the Order 1984, the said witness was not produced. The said witness while granting remand was acting as a Magistrate and in that eventuality he was subordinate to the trial judge. The trial Judge has summoned him for evidence, in that situation, giving him up by the prosecution under the garb of Article 4 of the Order 1984, amounts to withholding a most important evidence and under Article 129(g) of the Order 1984, an adverse presumption can be drawn against the prosecution and it can easily be presumed that he would have not supported the version put forwarded by PW-4, PW-5, PW-22 and PW-23. Even Article 4 of the Order 1984, does Crl.As.599-602/2020 etc 24 not bar to appear as witness but give an opportunity to the Magistrate or the Judge to take privilege not to answer any question put to him and then Article 4 of the Order 1984 will be operative. Otherwise, if he does not claim privilege he can give evidence as there is no bar under the said Article for making statement. He even without any permission can be examined as to the matter which occurred in his presence while he was so acting as Magistrate or Judge. So the evidence of Administrative Judge was willfully withheld by the prosecution with malafide and not bonafide as claimed by the learned counsel for the parents of Denial Pearl. Non examination of Mr. Arshad Noor Khan and non- mentioning of any admission or confession in the remand order is sufficient to discard the evidence of PW-4, PW-5, PW-22 and PW- 23. Articles 38 and 39 of the Order 1984, rendered the statement of these four PWs, inadmissible to the extent of alleged admission/confession of Ahmed Omar Sheikh. 19. In this case the date of arrest of Fahad Nasim Ahmed, Syed Salman Saqib and Ahmed Omar Sheikh remained controversial as according to the Investigating Officer the emails were sent from the system/link provided to Sheikh Naeem (PW-14) and on the night of 10/11 February 2002, on the pointation of said Sheikh Naeem (PW-14), Fahad Nasim Ahmed was arrested and a DELL laptop with hard-disk alongwith other articles i.e. copies of email two manuscripts in Urdu and English etc. were recovered from his residence and on the same night another accused namely Syed Salman Saqib was arrested and certain recoveries were effected. The claim of the Investigating Officer regarding the arrest of the accused persons and recovery of DELL Laptop on 11.2.2002 is totally negated from the statement of Ronald Joseph (PW-8) who Crl.As.599-602/2020 etc 25 categorically stated that the said Laptop was available in the US consulate on 4.2.2002 and he obtained the same on the same day from there. The report of said Ronald Joseph (PW-8) clearly indicate that he started examining the said Laptop on 7.2.2002. So how the Laptop which was already available in the US consulate on 4.2.2002 could be recovered from Fahad Nasim Ahmed on 11.2.2002. In order to meet the contradiction regarding the arrest of the accused persons learned Special Prosecutor General and the Prosecutor General argued that Ronald Joseph (PW-8) has given a wrong date inadvertently. This argument has no force as Ronald Joseph, in his report, categorically mentioned that Laptop was delivered to him from the lock-room of the US consulate and he received the same from there on 4.2.2002. Even in his expert report, it is specifically mentioned that he started examining the said Laptop on 7.2.2002. So one thing is quite clear that much prior to the arrest of Fahad Nasim Ahmed and alleged recovery of Laptop the same Laptop was available with Ronald Joseph (PW-8). Learned counsel for the parents of Daniel Pearl advanced another argument which was contrary to the prosecution version. According to him actually the accused were arrested on 4.2.2002 and Laptop was recovered from them but the Police Officer has shown their arrest late i.e. 11.2.2002. On query, he admitted that although accused were in illegal detention but in such high profile case such illegal detention can be ignored. This argument of the learned counsel is sufficient to throw out the whole prosecution case because none of the witnesses has ever claimed that the accused were arrested on 4.2.2002 or the Laptop which was used for sending emails was ever recovered from the accused on 4.2.2002 or prior to that. Even the arrest of Ahmed Omar Sheikh Crl.As.599-602/2020 etc 26 shown as 13.2.2002 is also doubtful as according to Ahmed Omar Sheikh he surrendered himself on 6.2.2002 at Lahore and later he was shifted to Karachi on 12.2.2002. The news paper clipping and TV footages indicate that he was arrested in Lahore. The version put forward by Ahmed Omar Sheikh gets support even from the statement of prosecution witnesses who admitted that the arrest of the accused in Lahore was published in the news papers. The prosecution’s own witness John Molligan (PW-12) admitted that he saw all the four accused present in the CID centre on 11th or 12th February 2002. The relevant portion is reproduced here under: “I saw four accused person who were present at CID Centre, who are present in this court today. But I saw them at about 11 or 12th Feb. 2002.” This admission on the part of the prosecution’s own witness totally contradicts the claim of the Investigating Officer who stated that on the night of 13th February 2002, he arrested Ahmed Omar Sheikh while wondering near the airport. The claim of Ahmed Omar Sheikh that he was brought through PIA flight from Islamabad was not rebutted by the prosecution by producing the PIA flight inquiry and list of passengers. Two DWs were produced by Ahmed Omar Sheikh to establish his arrest at Lahore. The prosecution story is also not believable that the person who was required by the police was found wondering around the airport area at night time while keeping incriminating documents i.e. email etc with him. 20. As already discussed the arrest of the accused persons were shown subsequently and prior to that they were kept in illegal confinement as claimed by the learned counsel for the parents of Daniel Pearl but this fact cannot be ignored simply on the logic of being a high profile case. Article 10(2) of the Constitution of the Islamic Republic of Pakistan (Constitution) clearly mandate that Crl.As.599-602/2020 etc 27 every person who is arrested and detained in custody shall be produced before the Magistrate within a period of twenty-four hours of such arrest and no such person can be detained in custody beyond the period without the authority of the Magistrate. So while keeping the accused persons in illegal detention, the prosecution had violated the fundamental rights, constitutional mandate and law. Due to this illegal detention of accused persons, the recoveries which were planted subsequently are negated from the statement of Ronald Joseph (PW-8) and John Molligan (PW-12) and have lost its value. 21. The prosecution had mainly relied upon the judicial confession of Fahad Nasim Ahmed and Syed Salman Saqib recorded under section 164 Cr.P.C. Admittedly, the said confessions were retracted and the Court has to see whether such retracted confessions have been made voluntarily without any inducement, promise or coercion and whether the object of making such confession was to state the truth. The confession would be voluntarily if it was made without any threat, inducement, promise, torture etc. In the present case, admittedly, accordingly to the prosecution’s own case, the statements under section 164 Cr.P.C. were recorded after 17/18 days to the extent of Syed Salman Saqib and about 10/11 days of the arrest of Fahad Nasim Ahmed and if keeping in mind the date of arrest as 4.2.2002, as argued by the learned counsel for the parents of Daniel Pearl, then this delay will be 25 days to the extent of Syed Salman Saqib and 17 days to the extent of Fahad Nasim Ahmed. This delay by itself is indicative of the fact that the confessional statements were not made voluntarily. If the object of the accused person to tell the truth and they were volunteered to make such statement the same Crl.As.599-602/2020 etc 28 must have been recorded on the first or second day of their arrest. Keeping them in such long detention clearly made both the retracted judicial confession doubtful and non-voluntarily. (i) Admittedly their statements were recorded with a delay of more than 17/18 days of their illegal confinement. Such long detention that too illegal, is sufficient to discard the confessional statements as the principle that longer police custody of an accused lesser the evidentiary value of his confession, will apply in this case. This delay has not been explained by the prosecution. All the learned counsels appearing on behalf of the prosecution were unable to explain as to why such confessions were not recorded on the day first of their arrest. (ii) The complaint of torture by one of the accused to the Magistrate and reasons of making confession in order to save himself or in order to go jail, are sufficient that the confessions were not voluntarily. From the perusal of the confessional statement of both the accused we are satisfied that the fear of police was not removed from the mind of the accused and the confession made by them is not free from extraneous influence such as threat, promise or inducement. The confessional statements were not made voluntarily and suffer from various defects and infirmity as noted by us and confessional statements have been retracted which are also enough to make them involuntarily and diminish its intrinsic value. (iii) It was the duty of the Magistrate who recorded the confessional statement to remove the impression of fear of torture by the police from the mind of accused before recording such statement. Although few questions were put to Fahad Nasim Crl.As.599-602/2020 etc 29 Ahmed but certain mandatory questions have not been asked from him. Fahad Nasim Ahmed on a question categorically mentioned that he was in the police custody for the last 13/14 days. A specific question as to which circumstance induced him to record such confession. He categorically stated that in order to save himself he was making such statement. This answer clearly depicts that he was not making the statement voluntarily, to bring on record the truth rather he was making statement under compulsion and fear in order to save himself. Relevant answer in Urdu is reproduced as under :- This answer clearly manifests that he was making the statement under the threat to his life or liberty or under promise for sorting him if he makes such statement. So the ingredient under Article 37 of the Order 1984, clearly emerged from the above mentioned answer making the confession irrelevant. The relevant Article is reproduced as under: 37. Confession caused by inducement, treat or promise, when irrelevant in criminal proceedings.- A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil or a temporal nature in reference to the proceedings against him.” It appears from the answer that in order to make such statement he would gain any advantage, which in the present case is apparent when he answered that he wants to make statement in order to save him. So the whole confession of Fahad Nasim Ahmed only by this sentence becomes irrelevant. Admittedly the accused Crl.As.599-602/2020 etc 30 were produced before the Magistrate after many days of their arrest. In order to remove the fear of the police and the apprehension that he may not be handed over again to the same police. A mandatory question was formed by this Court in may judgments so that the fear of remanding him back to the police should be removed but even such question was not asked from the accused person and the impression that he will again be handed over to the same police had not been removed by the Magistrate before recording the said confession. The Magistrate admitted that she had not told the accused whether he makes or does not make confession he will not be handed over to the same police. So the fear of the police and remanding him back to the same police was hanging as a sword upon the accused Fahad Nasim Ahmed. There is no explanation as to why such impression was not removed from the mind of the accused. Although it is the duty of the trial Court, appellate or this court to see as to whether the confession was voluntarily or not but in this case as the Magistrate had seen the accused and had received the answer that accused was making statement in order to save himself, she admitted that the said confession was not voluntarily and she herself volunteer that her answer was in accordance with the circumstances of the case. It is prosecution’s own witness who said that the said confession was not voluntarily, even then she was not declared hostile. 22. At the end of the certificate the Magistrate Ms. Iram Jehangir mentioned that she was satisfied that the confession made by the accused was voluntarily for the following reasons, but surprisingly no such reasons were mentioned by her. That was the reasons she, in the Court, had categorically stated that the confession was not voluntarily. So no reliance can be placed on such retracted Crl.As.599-602/2020 etc 31 confession which on the face of it is the result of inducement, promise or threat etc. 23. So far confession of Syed Salman Saqib is concerned, his arrest was shown by the police on 11.2.2002 but when the Magistrate put him question regarding his incarceration he told that he was in the police custody since 4.2.2002. On a question whether he had been tortured or maltreated, he categorically stated that he had been beaten but not at that time. So the torture upon him during custody of police, established from the said answer, make the confession irrelevant as mentioned in Article 37 of the Order 1984. Even the learned Magistrate admitted that if a confessing accused say that he was beaten by the police, such confession is not correct and is liable to be discarded. She categorically stated that the accused told her that he was beaten and maltreated but not on that day. The accused had taken a specific stance that he was beaten. The Magistrate at page No. 2 had mentioned that the body of the accused was examined with his consent and it was found that ……………………..……………...” but the said column was left blank. So the observation regarding mark of violence etc was totally withheld and the said column was left blank. As already been discussed, it was the duty of the Magistrate to ensure the accused before recording his confessional statement that his body will not be delivered back to the police if he makes or does not make any statement. In this case no such assurance was given to the accused. So the impression of torture which he had already faced and the fear of further torture at the hands of the police were not removed. Question was put to the accused as to which circumstances were inducing him to make confession, the reply was that he wants to go jail. So the object of Crl.As.599-602/2020 etc 32 the accused was not to tell truth but to go to jail in order to avoid further torture and maltreatment at the hands of the police. Even then the Magistrate did not assure him that if he will not make statement, he will not be handed over to the police. 24. The argument of the learned counsel for prosecution that the guidelines given by this Court are directory in nature and are not mandatory. This Court in the case of Azeem Khan vs. Mujahid Khan (2016 SCMR 274) had enunciated the following principles of law and categorically stated that Magistrate is required to observe all these mandatory precautions and observed as under : - “………the Recording Magistrate has to essentially observe all these mandatory precautions. The fundamental logic behind the same is that, all signs of fear inculcated by the Investigating Agency in the mind of the accused are to be shedded out and he is to be provided full assurance that in case he is not guilty or is not making a confession voluntarily then in that case, he would not be handed over back to the police…..” The guidelines given by this Court in numerous judgments have binding effect upon all the courts below in view of Article 189 of the Constitution. 25. The impression of fear was not removed from the mind of both the accused persons and according to the Magistrate it was not mentioned in the printed proforma, hence they were not told “not to fear”. This Court the case of Intikhab Ahmed Abbasi and others vs. the State and others (2018 SCMR 495) had already depreciated recording of judicial confession on printed proforma, containing questionnaire. This was depreciated because it amounts to filling the blanks and not in accordance with the requirement of law and rules. Even after recording the alleged confessional statement of these accused, the Magistrate had mentioned that the confession made by the accused is voluntarily for the reasons as Crl.As.599-602/2020 etc 33 follows but no such reason or ground for believing the confession voluntarily was incorporated by the Magistrate. She also admitted as under: - “It is fact that in the confession the accused has remained in police custody for a month and he wants to go to the jail it makes believing that the confession is not voluntarily.” So the circumstances of both the confessions, are quite clear that the confessions were not made voluntarily. The High Court had discarded both the judicial confessions of Fahad Nasim Ahmed and Syed Salman Saqib and alleged admission of Ahmed Omar Sheikh, before police officials and for doing so the High Court had given valid reasons which are not open to any exception. 26. In this case the recovery of Laptop through which the emails were sent to Mrs. Daniel Pearl was affected on the night of 11.2.2002 from the house of Fahad Nasim Ahmed. Admittedly the Laptop of Mrs. Daniel Pearl or any one else on which these emails were received were not traced out by the police. Even it is not known as to who delivered the said email to Mrs. Daniel Pearl if she had not received the emails on her own Laptop. In order to prove the recovery of Laptop the Investigating Officer claimed that it was Sheikh Naeem (PW-14) who pointed out the house of Fahad Nasim Ahmed on the night between 10/11.2.2002 and he also got recovered a scanner and a hard drive. Muhammad Ali (PW-19) who was a computer expert, working in Anti Car Lifting Cell in Karachi claimed that he received the Laptop and two emails at 1:00 pm. on 11.2.2002, from the Investigating Officer for examination. Muhammad Ali (PW-19) stated that as he was not having the required equipments so he was directed by his superiors to handover the Laptop to US consulate as FBI Officer had arrived to inspect the same. According to him he delivered the said Laptop on Crl.As.599-602/2020 etc 34 12.2.2002 to US consulate through a letter. This Laptop was having most importance, as according to FBI forensic expert, through this Laptop vital information was retrieved and the emails were sent from this Laptop. (i) Ronald Joseph (PW-8) in his evidence admitted that he arrived at Karachi on 4.2.2002; that he received the Laptop on 4.2.2002 in the US Consulate; that he was not aware of the name of the person who handed over to him the said Laptop but he was told that the Laptop is to be processed; that the Laptop was delivered to him from the locker-room of the US consulate; that he took six days in examining and processing the said Laptop. It is also a circumstance that when he left USA, he had knowledge that in Pakistan he was required to process the Laptop. According to his evidence he was briefed to process the Laptop/computer two days before he left for Pakistan, meaning thereby that he was aware on 28th or 29th January 2002 that while going to Pakistan he has to process a Laptop/computer because he left USA on 31.1.2002. Whereas according to prosecution’s own case the second email was sent to Mrs. Daniel Pearl on 30.1.2002. It is also a circumstance that the emails were delivered by Mrs. Daniel Pearl on 5.2.2002 to the police and prior to that the FBI expert had received the recovered Laptop and started to examine it. The argument of learned counsel for the prosecution that Ronald Joseph (PW-8) may have been briefed regarding the Laptop of Mrs. Daniel Pearl or Mrs. Nomani, but surprisingly no such Computer from these ladies was ever recovered. The name of the sender of the said email to the computer of Mrs. Daniel Pearl or Mrs. Nomani could be traced out on which the said email have been received. So only one laptop was in the field which was allegedly recovered on Crl.As.599-602/2020 etc 35 11.2.2002 from the residence of Fahad Nasim Ahmed whereas Ronald Joseph (PW-8) came to Pakistan on 4.2.2002 only to examine the said Laptop. So one thing is quite clear that the Laptop which was shown to be recovered on 11.2.2002 from the residence of Fahad Nasim Ahmed, was already available in the locker-room of US consulate on 4.2.2002. This fact by itself is indicative of the fact that all the recoveries were fabricated and planted to create an evidence against the accused persons which evidence was already available in the locker-room of US consulate. It is admitted by Ronald Joseph that he left Pakistan on 15.2.2002 and Laptop was shown to be recovered on 11.2.2002, as alleged by the prosecution, and given to the FBI on 12.2.2002 via Embassy. According to Ronald Joseph (PW-8) he completed the examination of the Laptop in six days, meaning thereby that he completed the examination of the alleged recovered Laptop on 18.2.2002, whereas according to his own version he left Pakistan on 15.2.2002. The learned counsels appearing on behalf of the prosecution are unable to explain as to recovery of the Laptop on 11.2.2002 was genuine or the evidence of Ronald Joseph (PW-8) and his expert report was truthful and genuine. If the prosecution’s version regarding the recovery of Laptop on 11.2.2002 is believed then the examination of the laptop by the FBI expert on 4.2.2002 would not be possible. If we believe that FBI expert did examined the recovered Laptop, then there is no evidence from where, when and from whom this Laptop was recovered and under what circumstances. The whole prosecution story became doubtful so far recovery of Laptop and other recovered articles are concerned. So the recoveries alongwith Laptop and the expert report generated from the said Laptop are Crl.As.599-602/2020 etc 36 clouded in the doubts and no reliance can be place on such recovery and expert report. 27. The other recoveries including manuscripts in English and Urdu regarding ransom demand which was allegedly recovered at the same time when Laptop was recovered, so there is no guarantee that such recoveries were also affected on the same night. The statement of Ronald Joseph exposed the padding, fabrication and illegal detention of accused persons and the recoveries from them. His evidence also falsified the statements of recovery witnesses and also the statement of Sheikh Naeem on whose pointation the arrest of Fahad Nasim Ahmed was shown to have been effected on 11.02.2002 and laptop etc. was recovered. So all the recoveries allegedly effected on the night of 10th/11th February 2002, became doubtful in view of the statements of Ronald Joseph. Likewise arrest of Ahmed Omar Sheikh on 13.02.2002 and the recoveries from him also negated from the fact that he was already in illegal confinement and this fact is also confirmed by the statement of John Molligan (PW-12). 28. In order to prove the manuscript allegedly written by Sheikh Muhammad Adil in Urdu and Ahmed Omar Sheikh in English, the prosecution produced Ghulam Akbar (PW-10), who claimed himself handwriting expert who gave a positive report that handwritten sample taken from Sheikh Muhammad Adil in Urdu and Ahmed Omar Sheikh in English have matched with the manuscript which was recovered from the residence of Fahad Nasim Ahmed on 11.2.2002 (already disbelieved in preceding para). Ghulam Akbar (PW-10) although claimed that he was handwriting expert but he admitted that “I am post graduate in Sindhi Literature from Karachi Crl.As.599-602/2020 etc 37 University. In that course the process of comparison is not taught to me. I have obtained no degree in this connection. It is fact that there are persons who can write the same in similar hand writing.” He also admitted during cross-examination that “It is fact that in the opinion I had not mentioned the ground in support of my opinion, but I have brought which are in my file.” The above cross-examination clearly indicates that Ghulam Akbar (PW-10) had no qualification, knowledge or expertise to be regarded as a handwriting expert. A handwriting expert who has no requisite qualification and has not been designated as handwriting expert, has no value. PW-10 had no competency and ability to correctly match handwriting sample to the original sample from the same person. The most important aspect of the case is that he had not given any reason/ground or basis in his report as to how he has formed the said opinion and on which ground he came to the said conclusion. He had not mentioned identical letters, natural flow of words and formation of letter etc. The handwriting report does not mention the reasons and the points of similarity, hence the same is not worthy of reliance. So no reliance can be placed on such piece of evidence and expert report. 29. So far identification parade of Ahmed Omar Sheikh by Nasir Abbas (PW-1) and Asif Mehfooz Farooqui (PW-6) is concerned, we have observed that both the witnesses have not described his role during the identification parade and simply picked him up as an accused. Nasir Abbas (PW-1) had seen the accused after one hour of Maghrab prayer when darkness has prevailed. In that eventuality it was not possible to capture the features of the person properly. He even did not describe the feature of the person with whom the foreigner left in a Car. Admittedly the dummies with Crl.As.599-602/2020 etc 38 which Ahmed Omar Sheikh was mixed up wearing different dresses, having different features and physics. Their names, ages and other particulars have not been mentioned by the learned Magistrate. Nasir Abbas (PW-1) admitted that only one person with beard was in the said queue. Nasir Abbas (PW-1) admitted that 20/25 Cameramen were present in the Court room. The Magistrate Iram Jehangir admitted that there was visible bullet mark on the right shoulder of the accused. So the accused with beard alone in the queue with a bullet mark could have been picked up easily by any person whose photographs had been published from 10th February onward in newspapers. The illegal confinement, as already discussed, also gave a presumption that during this period he was exposed to the witnesses. Same was the situation regarding identification of the same accused made by Asif Mehfooz Farooqui (PW-6). Both of them have not described the role of Ahmed Omar Sheikh. So the identification proceedings were full of irregularity, infirmity and cannot be taken into consideration especially when evidence of these two witnesses had already been discarded, as mentioned above. 30. Learned counsel for the parents of Denial Pearl had tried to highlight the previous involvement of Ahmed Omar Sheikh in a criminal case of such nature registered in India but we observe that during trial the FIR or other documents regarding the said case were never produced in the evidence nor ever the accused was confronted during the trial on this aspect of the case. Even otherwise while deciding a case the peculiar facts of the said case has to be seen. Crl.As.599-602/2020 etc 39 31. Learned counsel had also made stress upon a letter written by Ahmed Omar Sheikh from jail during the pendency of his appeal in which, according to learned counsel, he had made confession that he was having a minor role in the occurrence but while going through the said letter we observe that the accused Ahmed Omar Sheikh had professed his innocence in many words in the said letter and ultimately he made a complaint that the sentence awarded to him was very harsh if the role attributed to him is seen. It is a circumstance that this letter was never agitated or argued before the High Court and there is no finding of High Court on this letter. The circumstance of the present case create serious doubt and in that eventuality no premium can be extended for such letter and same cannot be taken into consideration separately rather the whole letter has to be taken in toto in which again and again the accused professed his innocence. 32. After careful reappraisal of the entire evidence, as discussed above, we are entertaining no amount of doubt that prosecution has failed to bring home guilt of the accused/respondents and appellant as the evidence furnished during the trial is full of factual and legal defects. In this case, regarding each and every piece of evidence the doubts are emerging from the mouth of the witnesses, and it is settled since centuries that benefit of doubt automatically goes in favour of an accused. Even if a single circumstance create reasonable doubt in a prudent mind regarding guilt of an accused then the accused shall be entitled to such benefit not as a matter of grace and concession but as a matter of right and such benefit must be extended to the accused person(s) by the Courts without any reservation. Reliance can be made upon Crl.As.599-602/2020 etc 40 the case of Muhammad Mansha vs. the State (2018 SCMR 772) in which this Court held as under : “Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, “it is better that then guilty persons be acquitted rather than one innocent person be convicted”. Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).” Reliance in this behalf can also be made upon the cases of Muhammad Imran vs. the State (2020 SCMR 857), Abdul Jabbar and another vs. the State (2019 SCMR 129), Mst. Asia Bibi vs. the State and others (PLD 2019 SC 64), Muhammad Ashraf alias Acchu vs. the State (2019 SCMR 652), Gul Dast Khan vs. the State (2009 SCMR 431) and Daniel Body (Muslim name Saifullah) and another vs. the State (1992 SCMR 196). (i) The High Court had rightly extended the benefit of doubt to Fahad Nasim Ahmed, Syed Salman Saqib and Sheikh Muhammad Adil and acquitted them from all the charges and had also rightly extended the benefit of doubt to Ahmed Omar Sheikh qua all other charges. However, the High Court ignored these important points mentioned above and wrongly convicted him under section 362 PPC when, as discussed above, the evidence of Nasir Abbas (PW-1) was full of doubts and no reliance can be placed on such doubtful statement. So the conviction of Ahmed Omer Sheikh under section 362 PPC was not justified. Although, learned counsel for the parents of Daniel Pearl argued that it is a high-profile case but Crl.As.599-602/2020 etc 41 even in such like cases the benefit of doubt cannot be extended to the prosecution and it is settled since centuries that such benefit can only be extended to the accused who is facing the trial. The trial Court although had convicted the accused persons under section 365-A, 302, 120-A PPC read with section 6(a) of ATA but surprisingly sentenced them only under section 7(a) of ATA and no sentence was passed independently for each offence rather single sentence in the shape of death to Ahmed Omar Sheikh and life imprisonment in respect of remaining three accused was passed and this illegality was also not curable. Even no conviction can be passed under section 120-A PPC, which deals with the definition of criminal conspiracy. Even conviction and sentence under section 362 PPC awarded by the High Court is illegal as no sentence under section 362 PPC is provided, so conviction or sentence passed by the High Court under section 362 PPC was also illegal. 33. Admittedly the parameters to deal with the appeal against conviction and appeal against acquittal are totally different because the acquittal carries double presumption of innocence and same could be reversed only when found blatantly perverse, illegal, arbitrary, capricious or speculative, shocking or rests upon impossibility. If there is a possibility of a contrary view even then acquittal could not be set aside as has been settled in the cases of The State vs. Khuda Dad and others (2004 SCMR 425). Muhammad Nazir vs. Muhammad Ali and another (1986 SCMR 1441), Rehmatullah Khan vs. Jamil Khan and another (1986 SCMR 941), Mst. Daulan vs. Rab Nawaz and another (1987 SCMR 497) and Gulzar Hussain vs. Muhammad Dilawar and others (1988 SCMR 847) Crl.As.599-602/2020 etc 42 33. As already discussed, the whole prosecution evidence is full of doubts and the prosecution has failed to prove the guilt of the accused persons. Hence Criminal Appeal No.602/2020 filed by Ahmed Omar Sheikh is allowed. He is acquitted of all the charges. He shall be released from jail if not required to be detained in any other case. Criminal Appeals No.599 to 601 of 2020 filed by the State against acquittal and Criminal Petitions No.1085 and 1086 of 2020 filed by the parents of Daniel Pearl against the acquittal of Fahad Nasim Ahmed, Syed Salman Saqib and Sheikh Muhammad Adil and for enhancement of sentence of Ahmed Omar Sheikh are dismissed. The above noted are the reasons of our short order passed on 28.1.2021, by a majority of two against one, (Yahya Afridi, J. dissenting) which is reproduced as under : “Mushir Alam, J.- For the reasons to be recorded later, by a majority of 2 to 1 (Yahya Afridi, J. dissenting), Criminal Appeals No.599, 600 & 601 of 2020, Criminal Petitions No.1085 and 1086 of 2020 are dismissed, the impugned judgment dated 02.04.2020 passed by the High Court of Sindh, Karachi is maintained to the extent of acquittal of all the four respondents from their charges. Criminal Appeal No.602 of 2020 filed by Ahmed Omer Sheikh against his conviction under section 362 PPC, is allowed and he is acquitted of the charge by extending the benefit of doubt to him. Ahmed Omer Sheikh, Fahad Nasim Ahmed, Syed Salman Saqib and Sheikh Muhammad Adil shall be released from the jail forthwith if not required to be detained in connection with any other case. All the miscellaneous applications filed by the either party have lost their relevance, hence, disposed of as such. Sd/- Sd/- Yahya Afridi, J.- For the reasons to be recorded later, Criminal Appeals No.599, 600 and 601 of 2020 and Criminal Petitions No.1085 & 1086 of 2020 are partly allowed in the terms that Ahmed Omer Sheikh and Fahad Nasim are convicted under sections 365-A & 120-B, PPC and section 7 of the Anti-Terrorism Act, 1997 each and sentenced to imprisonment for life on each count. All the sentences passed against both the convicts shall run concurrently. The benefit under section 382-B, Cr.P.C. shall be extended to them. To the extent of Syed Salman Saqib and Crl.As.599-602/2020 etc 43 Sheikh Muhammad Adil Criminal Appeals No.599, 600 & 601 of 2020 and Criminal Petitions No.1085 & 1086 of 2020 are dismissed and their acquittal is maintained on all the charges, they shall be released from the jail forthwith if not required to be detained in connection with any other case. Criminal Appeal No.602 of 2020 filed by Ahmed Omer Sheikh is dismissed.” Sd/-” Judge Judge Judge ORDER OF THE COURT By a majority of two against one, Criminal Appeals No.599, 600 and 601 of 2020, Criminal Petitions No.1085 and 1086 of 2020 are dismissed. Criminal Appeal No.602 of 2020, is allowed in the terms noted in the opinion recorded by Sardar Tariq Masood, J, which opinion is declared to be the judgment of the Court. Judge Judge Judge Islamabad, the M Saeed/** NOT APPROVED FOR REPORTING. Judge YAHYA AFRIDI, J — What we have before us are four criminal appeals, with the leave of the Court, and two direct criminal petitions, all challenging the judgment dated 02.04.2020 passed by the High Court of Sindh, Karachi in appeals filed by the four accused-convicts and the State against the judgment of the Anti-Terrorism Court No. II, Hyderabad dated 15.07.2002 in Police Crime No. 24 of 2002 of Artillery Maidan Police Station, Karachi (South). Appeals and petitions 2. All contesting parties in the cases in hand are aggrieved of the impugned judgment of the High Court of Sindh. The State has impugned in appeal before this Court, the acquittal of the three accused, namely, Fahad Naseem, Salman Saqib and Sheikh Muhammad Adil and the reduction in sentence of Ahmed Omar Sheikh (Criminal Appeals No.599-601/2020). Then we have the appeal moved by Ahmed Omar Sheikh, who is aggrieved of the conviction and sentence passed against him (Criminal Appeal No.602/2020). Lastly, we have the two direct petitions filed by the parents of Daniel Pearl, challenging the acquittal of the three acquitted accused, Fahad Naseem, Salman Saqib and Sheikh Muhammad Adil, and the reduction in the sentence of the fourth accused, Ahmed Omar Sheikh (Criminal Petition No.1085/2020 and Criminal Petition No.1086/2020). Chronology of events 3. In a nutshell, the prosecution story of how the events unfolded, can be summarized as under: - Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 2 i. On 08.01.2002, Daniel Pearl, South Asia Bureau Chief of the Wall Street Journal on an assignment in Pakistan, contacted Asif Mehfooz Farooqui (PW-6), a journalist working for a Japanese news agency, to arrange a meeting with Pir Mubarik Shah Gilani, who was said to be the spiritual guide of Richard Read known as the “shoe bomber”. Asif Mehfooz Farooqui (PW-6) contacted Arif alias Hashim (absconding accused No. 3) who arranged a meeting with the contact of Pir Mubarik Shah Gilani on 11.02.2002 at Akbar International Hotel, Rawalpindi. In this meeting Bashir (later identified as Ahmed Omar Sheikh) was introduced to Daniel Pearl as a contact (‘Mureed’) of Pir Mubarik Shah Gilani. ii. A week later, Daniel Pearl informed Asif Mehfooz Farooqui (PW-6) that “Bashir” had arranged a meeting with Pir Mubarik Shah Gilani at Karachi. iii. Accused Fahad Naseem and Salman Saqib received Ahmed Omar Sheikh from Jinnah International Airport at Karachi and took him to a house in KDA, where they discussed the modalities of sending emails to various organizations and agreed to purchase polaroid cameras, a scanner and a printer. Later, Ahmed Omar Sheikh handed them, scripts in English and Urdu, which they agreed to email. iv. On 23.01.2002, a ‘white man’ hired a taxi driven by Nasir Abbas (PW-1), who was dropped around 07.00 P.M. outside Village Restaurant, Metropole Hotel, Karachi, where he met a person (later identified as Ahmed Omar Sheikh) with whom he sat with and drove off in a white Toyota corolla car. v. Emails dated 27.01.2002 and 30.01.2002 were received by different persons, including media outlets: containing information regarding Daniel Pearl’s abduction, the demand for ransom for his release, and death consequences for its non-compliance. Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 3 vi. On 04.02.2002, Marianne Pearl, wife of Daniel Pearl, made a written complaint to the S.H.O. Artillery Maidan Police Station, Karachi (South) reporting the suspicious absence of her husband. vii. In furtherance of the said complaint, the case FIR No. 24 of 2002, was registered under sections 365-A, Pakistan Penal Code, 1860 (“PPC”) read with section 7 of the Anti-Terrorism Act, 1997 (“FIR”). Sections 368 /302 /109 /205/120-A/34, PPC read with sections 7- A, 8(a)(b)(c), 11/A(a)(b)(c), 6(2)(b)(c)(e)(f), 11/H(3-4), 11/V(I)(a)(b)(2), 11/L(a)(b), 7(a)(b)(2), 11/H(2)(a)(b), 11/W(1)(2), 7 of the Anti-Terrorism Act, 1997 (“ATA”) were subsequently added to the FIR. viii. Accused Fahad Naseem, Salman Saqib and Sheikh Mohammad Adil were stated to be arrested from Karachi on 11.02.2002. While accused Ahmed Omar Sheikh was stated to be arrested from a public place close to Jinnah International Airport, Karachi on 13.02.2002. ix. Ahmed Omar Sheikh, on 14.02.2002 at the time of his first remand before Arshad Noor Khan, Judge, Anti- Terrorism Court-III, Karachi, has been stated to have admitted that he abducted Daniel Pearl, who was by then dead. x. Nasir Abbas (PW-1) and Asif Mehfooz Farooqui (PW-6) identified Ahmed Omar Sheikh in two separate Test Identification Parades carried out by Irum Jahangir (PW-9), Judicial Magistrate, on 21.02.2002 and 01.03.2002, respectively. xi. Irum Jahangir (PW-9), Judicial Magistrate, recorded the confessional statements of the accused Fahad Naseem and Salman Saqib on 21.02.2002 and 01.03.2002, respectively. xii. John Mulligan (PW-12) received a video cassette from a source on 21.02.2002, and the same was viewed in Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 4 Court, showing the murder scene, which the prosecution claims to be that of Daniel Pearl. xiii. On 28.03.2002, the Challan was submitted before the Anti-Terrorism Court (“ATC”) against eleven persons, seven of them were declared absconders under the relevant provisions of Cr.P.C. The Trial 4. The Anti-Terrorism Court No.III, Karachi framed the charge against all four arrested accused, namely; Fahad Naseem, Syed Salman Saqib, Sheikh Muhammad Adil and Ahmed Omar Sheikh, for the offences under sections 120-A, 365-A, 302, PPC read with section 6(a) of the ATA. All four accused pleaded not guilty and claimed trial. The High Court of Sindh on an application of the State vide order dated 30.04.2002 directed for the transfer of the trial from ATC Karachi to ATC Hyderabad. Accordingly, trial proceedings were transferred from ATC Karachi to ATC Hyderabad, and for security reasons, the same were carried out at Central Jail, Hyderabad. 5. The prosecution produced twenty-three witnesses to prove their case against the accused persons. After closing of prosecution evidence, all four accused persons recorded their statements under section 342, Cr.P.C. None of the accused wanted to record his statement on oath under section 340(2), Cr.P.C. However, Ahmed Omar Sheikh produced two witnesses in his defence: his uncle, Rauf Ahmed Sheikh, District & Sessions Judge (DW-1), and his father, Saeed Ahmed Sheikh (DW-2). 6. The trial Judge, ATC No.II Hyderabad vide judgment dated 15.07.2002 held that the prosecution had proved the guilt of all Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 5 four accused beyond reasonable doubt and convicted the accused persons, as guilty of offences under sections 120-A, PPC 365-A, 302, PPC read with section 6(a) of the Anti-Terrorism Act, 1997. And sentenced them in terms that; “Ahmed Umer Shaikh it appears that this accused had engineered entire plan of creating sense of fear nationally and internationally and thereby made conspiracy and he was a Principal Offender and he made with his efforts the other remaining accused to be his aiders/associates for the purpose of completion of his above plan involving the sense of fear, insecurity nationally and internationally. I, therefore, convict accused persons under section 365-A, 302, PPC read with section 6(a) of the Anti-Terrorism Act, 1997 and Section 120-A, PPC and thereupon as a result accused Ahmed Umer Saeed Shaikh is sentenced to death under section 7 of the Anti Terrorism Act, 1997 to be hanged by the neck till he is dead. “Adil Shaikh, Salman Saqib and Fahad Naseem are sentenced under section 7 of the Anti-Terrorism Act, 1997 to suffer Life Imprisonment. They are also sentenced to pay fine of Rs. 5,00,000/- each. In case of non payment of fine, these accused persons shall undergo sentence for five (5) years more. “This court also direct all the four accused persons to pay jointly a sum of Rs. 20,00,000/- (Twenty Lacs), which shall be paid by them in equal share and if this amount is paid it shall be given to the widow of Daniel Pearl and also to his Orphan son. The imprisonment sentences shall to run concurrently and benefit under section 382-B, Cr.P.C. is given to the accused person. The death sentence awarded will be executed subject to the confirmation by the Hon’ble High Court of Sindh, for which the reference is separately made to the Hon’ble High Court of Sindh.” Appeal and Judgment of the High Court of Sindh 7. All four convicted accused assailed the trial court judgment recording their convictions and sentences in appeal before the High Court of Sindh, Karachi. The High Court did not concur with the findings of the trial court on crucial issues for the following reasons: (i) On the charge of criminal conspiracy against the accused, the appellate court found that the same was not proved, as there was no evidence of Fahad Naseem, Syed Salman Saqib, and Sheikh Muhammad Adil being present with Ahmed Omar Sheikh in room No. 411 of Akbar International Hotel, Rawalpindi on 11.01.2002. The lack of evidence to show Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 6 their physical presence together at the relevant time and place was found crucial by the High Court to render a finding that the said charge of conspiracy was not proved against all the four accused. (ii) On the charge of abduction, the appellate court found Ahmed Omar Sheikh guilty of having committed the offence of abduction under section 362, PPC, based on the reasons that: the delay in submitting the complaint to the police by Marianne Pearl was not unnatural, as she was not only a foreigner, but was also expecting a child; Asif Mehfooz Farooqui (PW-6) and Amir Afzal (PW7) were independent and not chance witnesses, and their evidence legally sufficed to prove the deceitful means by which Ahmed Omar Sheikh managed to set up a plan for a meeting between Daniel Pearl and Pir Mubarak Shah Gilani at Karachi; that Asif Mehfooz Farooqui (PW-6) identified Ahmed Omar Sheikh as Bashir in the test identification parade which despite some irregularities, was found to be of legal weight; the testimony of Amir Afzal (PW-7) and the hotel receipts (Exh.P/10/1 and Exh.P/10/4), which he produced corroborated the testimony of Asif Mehfooz Farooqui (PW-6); Nasir Abbas (PW-1) was also found to be an independent witness, and his testimony regarding Daniel Pearl being “last seen” with Ahmed Omar Sheikh on 23.01.2002, and his identifying Ahmed Omar Sheikh in the test identification parade was found worthy of legal credence; the testimony of Jameel Yousaf (PW-2) was found to corroborate the testimony of Nasir Abbas (PW-1). (iii) On the charge of abduction for ransom, the appellate court found that the prosecution evidence did not prove the fact that the demand of ransom was made by the accused. In so concluding, the appellate court passed crucial findings of facts that: the prosecution evidence regarding the time and place of arrest of the accused was not legally proved and was contrary to other prosecution evidence; the recoveries made from the accused at the time of their arrests were not legally reliable; the Forensic Reports based on the data from the Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 7 recovered laptop rendered by Ronald Joseph (PW-8) could not be legally relied upon, as there was a possibility that the laptop was manipulated by the investigating agency and later was shown to have been recovered from Fahad Naseem at the time of his arrest; the testimony of Shaikh Naeem (PW- 14) was found lacking to prove that the ransom emails of 27.01.2002 and 30.01.2002 were sent by Fahad Naseem; the prosecution evidence to prove that the polaroid camera was purchased by Fahad Naseem and Salman Saqib from Mohammad Arif (PW-16) was nullified, when the same were not produced in evidence; the confessions of Fahad Naseem and Salman Saqib were inadmissible, lacking the essential ingredients of being voluntary as required under Article 37 of the Qanun-e-Shahadat, 1984; the stance of the prosecution that, Ahmed Omar Sheikh made an admission before the Judicial Magistrate granting his police remand on 14.02.2002 were not accepted as the same was neither recorded in the remand order nor was the Judicial Magistrate granting the remand order produced as a witness by the prosecution to prove the said fact; Ghulam Akbar Jaffari (PW-10) lacked the technical expertise to be worthy of rendering any opinion as a handwriting expert. (iv) On the charge of murder, the appellate court held that the prosecution had failed to produce any evidence to prove the guilt of the accused, and it held that: the death of Daniel Pearl was not in close proximity to the date of his being “last seen” with Ahmed Omar Sheikh; the video cassette produced by John Mulligan (PW-12) showing the murder of Daniel Pearl did not show that the execution was being carried out by all or any one of the four accused; no crime weapon was recovered to link the same to the accused. 8. Based on the above findings, the High Court allowed the appeals filed by Fahad Naseem, Syed Salman Saqib, Sheikh Muhammad Adil and they were acquitted of all charges; while the appeal of Ahmed Omar Sheikh was partially allowed, and he was Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 8 acquitted of all framed charges, and convicted for the offence under section 362, PPC and sentenced to seven years R.I. and a fine of Rs. 2,000,000/-. Maintainability of the petition filed by the parents of Daniel Pearl 9. Before adverting to the legal merits of the controversy involved in the cases in hand, it would be pertinent to address the maintainability of the direct criminal petitions filed before this Court by the parents of Daniel Pearl against the acquittal of the three accused and reduction in sentence of fourth accused by the High Court. When confronted with the above challenge, the learned counsel representing the parents of Daniel Pearl contended that the scope of Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 (“Constitution”) was wide enough to entertain petitions filed by “person aggrieved”, which included the parents of the person wronged. In this regard, the learned counsel sought reliance on Muhammad Shafi v. Muhammad Asghar.1 In this judgement, the Court held that the paramount consideration for the exercise of jurisdiction, in terms of Article 185(3) of the Constitution, has been to foster the dictates of justice, and not to look at the person invoking the jurisdiction of Supreme Court. The jurisdictional contours of the Supreme Court for entertaining criminal petitions under Article 185 of the Constitution can be flexed for bolstering the ends of justice. 10. In the given circumstance, it is difficult to hold that the parents of Daniel Pearl are not the “persons aggrieved”, within the contemplation of Article 185 of the Constitution. Accordingly, the 1 Muhammad Shafi v. Muhammad Asghar (PLD 2004 SC 875). Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 9 present Criminal Petition No. 1085/2020 and Criminal Petition No. 1086/2020 are held to be maintainable. Remand for additional evidence – Post-Mortem Examination Report 11. The learned counsel representing the parents of Daniel Pearl prayed for the remand of the case to the appellate court for recording of additional evidence in terms of section 428, Code of Criminal Procedure, 1898 (Cr.P.C.) to prove that the Post-Mortem Examination Report available on the record of the Trial Court was, in fact, that of Daniel Pearl. It was urged that proving this fact was necessary for the just adjudication of the case and submitted further that the DNA report of the deceased confirmed that the dead body so recovered and examined, was of Daniel Pearl, who, he further asserted, now remains buried in Los Angeles, United States of America. 12. This issue of the Post-Mortem Examination Report arose when a report published in Daily “Umat” dated 28.05.2002 stated that the dead body of Daniel Pearl had been recovered and examined by a Medical Board of doctors. Based on the said report, Ahmed Omar Sheikh, moved an application to the trial court seeking the said Post Mortem Report to be placed on record of the case. This application was opposed by the State. However, the trial court vide order dated 28.05.2002 allowed the Post Mortem Examination Report to be placed on the record of the case. The contents of the Report stated that a Special Medical Board comprising of six doctors was constituted to examine a corpse, and after examination, the report inter alia noted; that the exhumation was carried on at 09.00 A.M. on 17.05.2002, while the post- Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 10 mortem examination of the corpse was carried out on the same day; the place of exhumation was a plot in Ahsanabad, Karachi; the name and parentage of the dead person was clearly marked as “unknown” and “the body is partially decomposed and adipocered. Facial features are not identifiable due to decomposition changes in all soft tissues”. 13. It is by now a settled principle of criminal administration of law that the appellate courts are to be cautious in allowing the production of additional evidence at an appellate stage, especially when such fact was available and in the knowledge of the party seeking to produce it, as additional evidence.2 The underlying reason for the Appellate Court to exercise restrain is that it might prejudice the case of the accused3 or be used to fill the lacunas of the prosecution case.4 Therefore, unless the said evidence could not have been collected earlier, despite due diligence or where the said party was prevented from collecting and producing the same at the trial for reasons beyond its control and power, the appellate courts are not to allow production of such additional evidence.5 14. Given the above principles governing the production of additional evidence, request of the parents of Daniel Pearl for the production of additional evidence does not merit legal consideration. It is noted that the Post Mortem Examination Report sought to be produced in evidence and proved by adducing additional evidence was available before the Trial Court, and no 2 Dildar v. The State through Pakistan Narcotics Control Board, Quetta (PLD 2001 SC 384), Fazal Ellahi and others v. Crown (PLD 1952 Lahore 388) and Nasir Khan and others v. The State (2005 P.Cr.L.J.1) 3 Ali v. Crown (PLD 1952 FC 71); Ghulam Muhammad v. State (PLD 1957 Lah. 263); Muhammad Ismail v. State (PLD 1970 Kar. 261); Muhammad Ehsan v. State (PLD 1975 Lah. 1431); Gullan v. State (PLD 1977 Lah. 1103); Barkat Ali v. Crown (1969 SCMR 448) 4 Ibid No.2 and 3. 5 Dildar vs. The State (PLD 2001 SC 384) Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 11 positive step was taken by the petitioners during the trial or appellate stage. Hence, the belated request of the parents of Daniel Pearl for the production of additional evidence being bereft of legal merit is denied. Letter of Ahmed Omar Sheikh 15. The learned counsel for the parents of Daniel Pearl also urged, as an additional ground, for remand of the case to the appellate court to consider the letter dated 25.07.2019, stated to be written and signed by Ahmed Omar Sheikh from the Hyderabad Central Jail addressed to the High Court of Sindh, which allegedly contained his admission of criminal culpability. According to the learned counsel, the High Court failed to consider the said letter while deciding the appeals. The learned counsel for Ahmed Omar Sheikh raised serious objections to the consideration of the said letter. The learned counsel was directed to obtain instructions from accused Ahmed Omar Sheikh. Upon receipt of the instructions, it was stated that Ahmed Omar Sheikh admitted to writing the letter but denied having any part in the commission of the offence. It was stated that the letter was meant only to attract the attention of the High Court for the early hearing of his appeal, which at the time had been pending for the last two decades. Suffice it to state that the letter dated 25.07.2019 does not find any mention in the record of judicial proceedings before the High Court. In fact, there are well defined rules under the enabling provisions of the Qanun-e-Shahadat, 1984 for the admissibility of evidence and the recording of statement of the accused, which do not allow consideration of material, such as the letter of Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 12 25.07.2019. In fact, subject to law, none can be allowed to pitch a document before the Supreme Court for consideration, which was never formally tendered or produced in evidence and proved at the appropriate stage.6 Allowing such a practice will not only undermine the sanctity of the judicial record and judicial proceedings, but also violate the rule of admissibility of evidence. Hence, the request of the parents of Daniel Pearl for considering the letter of 25.07.2019 is denied. Production of Press Reports 16. The parents of Daniel Pearl through Crl.M.A. No. 1744/2020 and Crl.M.A. No. 18/2021 prayed to place on record certain newspaper reports; the first application related to Ahmed Omar Sheikh’s alleged admission during the remand proceedings, and the second was regarding his activities during his incarceration in Central Jail Hyderabad. Our courts have generally, allowed relevant and uncontradicted news items published in newspapers or magazines regarding contemporaneous events to be admissible, to form the basis for drawing inferences and accepting as material for forming an opinion. In Islamic Republic of Pakistan vs. Abdul Wali Khan7, newspaper articles that provided a contemporaneous account were held to be admissible, in the terms that: “[I]t cannot be denied that so far as newspaper reports of contemporaneous events are concerned, they may be admissible. Particularly where they happen to be events of local interest or of such a public nature as would be generally known throughout the community and testimony of an eye-witness is not readily available. The contemporary newspaper account may well be admitted in evidence in such circumstances as has often been done by Courts in the United States of America not because they are `business records' or 'ancient documents' but because they may well be treated as a trustworthy contemporaneous account of 6 Khan Muhammad Yusuf Khan Khattak v. S. M. Ayub and 2 others (PLD 1973 SC 160), Province of the Punjab though Collector, Sheikhpura vs. Syed Ghazanfar Ali Shah [2017 SCMR 172] 7 Islamic Republic of Pakistan vs. Abdul Wali Khan (PLD 1976 SC 57) Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 13 events or happenings which took place a long time ago or in a foreign country which cannot easily be proved by direct ocular oral testimony.” 17. The above view has resounded in the judicial pronouncements that have followed.8 However, in criminal cases such evidence must be viewed with strict caution. In Muhammad Ashraf Khan Tareen v The State9, the appellant wanted the Court to rely on a newspaper reporting of the incident. The Court refused to accept the newspaper report as proof of the fact in issue, essentially on the ground that the author of the said report was not produced in Court to prove the fact he had so reported therein. Similarly, in the present case, the author of the reports urged to be considered, were not produced as witnesses, therefore, the said reports did not suffice as proof of the facts stated therein. Thus, admitting such newspaper reports as prayed for by the parents of Daniel Pearl, would be against the safe administration of criminal justice. Hence, the request is declined. Production of acquittal order of Hashim alias Arif 18. On the other hand, the learned counsel for the accused Ahmed Omar Sheikh, through Crl. M.A No. 2074/2020 in Criminal. Appeal No. 599/2020 prayed that the Copy of the judgement of Anti- Terrorism Court dated 23.10.2014 Hyderabad in ATC Case No. 1 of 2008 “State Vs. Muhammad Hashim alias Arif” in FIR No. 24 of 2002 to be allowed to be placed on record. The learned defence counsel submitted that the accused Hashim alias Arif, who was declared a proclaimed offender in the instant case was 8 Muhammad Nawaz Sharif's case (PLD 1993 SC 473); Mrs. Mamoona Saeed vs. Government of the Punjab (2003 YLR 2379) 9 Muhammad Ashraf Khan Tareen vs. The State (1996 SCMR 1747); Ishtiaq Ahmed Mirza vs. Federation of Pakistan (2019 PLD 675) Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 14 subsequently arrested, tried and acquitted by ATC Hyderabad. The learned Counsel argued that since the co-accused has already been acquitted, the present accused Ahmed Omar Sheikh cannot be held guilty of the offence of criminal conspiracy. 19. It is a fundamental principle of criminal jurisprudence that evidence of one case cannot be read into another case, and each case is to be decided in the light of evidence, so produced in that case alone.10 Therefore, the said ATC judgement of acquittal cannot be considered, as an additional piece of evidence by either party (prosecution or defence) in the present case. Even otherwise, the said judgement would be of no legal avail to the defence, as the same clearly states that the prosecution witness, namely, Asif Mehfooz Farooqui (PW-6) during his cross-examination did not recognise the person being tried, as Arif alias Hashim, whom he had met with Daniel Pearl on 11.01.2002 in Akbar International Hotel Rawalpindi. 20. Now to the valued opinion of my respected brothers on the merits of the case. With all deference, I am unable to agree with their evaluation of prosecution evidence, the reasoning leading to, and their conclusion thereon. I, therefore, would most humbly offer my own reasons of dissent. Charge of Criminal Conspiracy 21. The charge of criminal conspiracy is easy to allege and difficult to prove. However, it is one of the very serious offences, and it cannot be lightly adjudicated upon. Therefore, before adverting to the prosecution evidence, it would be appropriate to 10 Khushi Muhammad alias Natho v. The State (PLD 1986 SC 146), Akbar Ali v. Qazi Javed Ahmad and others (1986 SCMR 2018), Ali Sher v. The State (PLD 1987 Kar. 507) and Malik Aman v. Haji Muhammad Tufail (PLD 1976 Lah. 1446) Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 15 elaborate the substantive, procedural and adjective law relating to the offence. 22. “Conspiracy” derives from the Latin words “con” and “spirare”, meaning “to breathe together”.11 In Halsbury's Laws of England, the English Law as to conspiracy consists of: “[an] agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. It is an indictable offence at common law, the punishment for which is imprisonment or fine or both in the discretion of the Court”.12 A similar definition of conspiracy is provided in Black’s Law Dictionary as: “An agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective, and (in most states) action or conduct that furthers the agreement; a combination for an unlawful purpose. Conspiracy is a separate offense from the crime that is the object of the conspiracy. A conspiracy ends when the unlawful act has been committed or (in some states) when the agreement has been abandoned. A conspiracy does not automatically end if the conspiracy’s object is defeated.” 13 Therefore, the word “conspiracy” in its ordinary dictionary meaning has been described as: “an agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective, and action or conduct that furthers the agreement; a combination for an unlawful purpose;14 to plot or scheme together: to devise: to act together to one end.15 23. In American Jurisprudence, the concept of “criminal conspiracy” is not different, as being defined in the terms: “an agreement between two or more persons to accomplish together a criminal or unlawful act or to achieve by criminal or unlawful means…..[T]he unlawful agreement and not its accomplishment is the jist or the essence of the crime of conspiracy”.16 11 Ibid No.4. 12 Halsbury's Laws of England (vide 4th Ed. Vol. 11, pages 44, 58). 13 Black’s Law Dictionary, 9th edn. 14 Ibid. 15 Chambers English Dictionary. 16 American Jurisprudence (2nd Edition, Volume-16, page-129). Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 16 24. The English Law on this matter is well settled, as Russell on Crime notes: "The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties, agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough."17 25. According to Dr. Sri Hari Singh Gour’s “Commentary on Penal Law of India”, the legal position is summed up in the following words: "In order to constitute a single general conspiracy, there must be a common design. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in a general conspiracy though he may not know all its secrets or the means by which the common purpose is to be accomplished. The evil scheme may be promoted by a few, some may drop out and some may join at a later stage, but the conspiracy continues until it is broken up. The conspiracy may develop in successive stages. There may be general plan to accomplish the common design by such means as may from time to time be found expedient."18 26. In our jurisdiction, the offence of criminal conspiracy has been defined in section 120-A, PPC and its punishment is provided under Section 120-B, PPC. There are also special rules of evidence regarding this offence embodied in Article 23 of the Qanun-e- Shahadat, 1984. For ease of reference, the aforementioned provisions are reproduced, hereunder: “120-A. Definition of Criminal Conspiracy- When two or more persons agree to do, or cause to be done — (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.” “120- B Punishment of criminal conspiracy: (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no 17 Russell on Crime notes: (12 Ed. Vol. I, p. 202) 18 Dr. Sri Hari Singh Gour, 'Commentary on Penal Law of India', (Vol. 2, 11th Edn. page 1138) Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 17 express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.” Article 23, Qanun-e-Shahadat, 1984 “Things said or done by conspirator in reference to common design: Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy, as for the purpose of showing that any such person was a party to it.” 27. Given the above statutory provisions, it can be noted that to constitute criminal conspiracy under section 120-A, PPC two essential elements are required to be proved: (i) intent to do or cause to be done an illegal act, or an act which is not illegal but by illegal means; (ii) existence of a conspiratorial agreement. Realising the clandestine nature of the offence, the legislature has employed a special rule of evidence, as provided under Article 23 of the Qanun-e-Shahadat, 1984. The said rule is an exception to the general rules of proof. This rule provides that there should be ‘reasonable ground’ that a person was a party to the conspiracy before his acts, statements or writings can be used against his co- conspirators. Mere association of a person with a conspirator or even a serious suspicion of one’s involvement with the other is not sufficient to constitute ‘reasonable ground’ for the former to be in conspiracy with the latter. Similarly, it is not necessary to establish by direct evidence that the accused and the person whose acts, statements or writings are sought to be given in evidence against the accused, entered into a formal agreement to commit an offence. Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 18 In cases of conspiracy, direct evidence is seldom available and a conspiracy can be established by circumstantial evidence. On this subject, it is difficult to establish a general inflexible rule, as each case must be adjudged by its own peculiar circumstances. Therefore, strict proof of conspiracy is not necessary; what is required by Article 23 of the Qanun-e-Shahadat, 1984, is that there should be “reasonable grounds” to believe that the accused and the person whose acts, statements or writings are sought to be given in evidence have conspired to commit an offence or an actionable wrong.19 Where once the prosecution proves the existence of ‘reasonable grounds’ that two or more have committed an offence or an actionable wrong, anything said done or written by one of the conspirators in reference to the common intention, after the said intention was entertained, is relevant against the others, not only for the purpose of proving the existence of the conspiracy but also for proving that the other person was a party to it. There appears to be a judicial consensus in common law jurisdiction that: - I. The essential ingredients for constituting criminal conspiracy are; an agreement between two or more persons and the agreement must relate to doing or causing to be done either an illegal act or an act which is not illegal in itself but is done by illegal means. Mere common intention or discussion would not constitute the offence unless, there is an agreement. 19 Bhagwan Swarup Lal Bishan Lal and others v The State of Maharashtra (AIR 1965 SC 682) Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 19 II. In most of the cases, criminal conspiracy is hatched in secrecy and no direct evidence could be obtained. Therefore, the circumstances and manner in which each accused plays his role and his level of involvement would be the relevant factors. The circumstances indicating the guilt of the accused would be cumulatively considered in view of the common design and object. The isolated approach, by evaluating the role of individual accused, cannot be adopted. However, the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution. III. Each one of the accused is aware that he has a part to play in a conspiracy though he may not know all the details or the means by which the common purpose is to be accomplished. IV. The conspiratorial scheme may be promoted by a few, some may drop out and some may join at a later stage, but the conspiracy continues until it is broken up. V. The offence of criminal conspiracy is an exception to the general principle of criminal law requiring both, mens rea and actus reus. The offence of criminal conspiracy does not require any actus reus, and stands completed when the conspiratorial agreement is made. VI. Criminal conspiracy is an “independent offence”, and the means adopted by the conspirators may lead to commission of independent offences, for which they would be criminally liable in addition to the offence of criminal conspiracy. The marked yet subtle distinction between the offence of ‘criminal conspiracy’ and that of ‘abetment’ has always remained a touchy issue. Any person, who is not privy to the conspiratorial agreement but aids and abets any person in achieving the unlawful Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 20 goal of the criminal conspiracy would be committing abetment of the substantive offence, so committed in achieving the unlawful goal. In such cases, the person abetting would be charged for abetment of the substantive offences committed in achieving the ultimate unlawful goal and not for criminal conspiracy. VII. Criminal conspiracy is a ‘continuing offence’. The offence continues till the illegal object is achieved or when the same is abandoned by the conspirators. 28. In the present case, the content and evidential value of the prosecution evidence to prove criminal conspiracy against the accused, would have to be viewed and evaluated in accordance with the principles enumerated, hereinabove. This would take us to first consider, Asif Mehfooz Farooqui (PW-6), who introduced himself as a journalist working for a Japanese news agency, and deposed that on 08.01.2002, he was contacted by Daniel Pearl through a mutual contact, seeking to arrange a meeting with Pir Mubarik Shah Gilani, who was said to be the spiritual guide of Richard Read known as the “shoe bomber”. He added that, he after making enquiries made contact with one Arif alias Hashim (absconding accused No. 3), who agreed to help, and took them to a house in Rawalpindi, where they were informed that Pir Mubarik Shah Gilani had moved out from the said house. He then on behalf of Daniel Pearl requested Arif alias Hashim to help in finding the whereabouts of Pir Mubarik Shah Gilani. Arif alias Hashim, after a few days called him to confirm a meeting with a Contact (‘Mureed’) of Pir Mubarik Shah Gilani for the evening of 11.02.2002 at Akbar International Hotel, Rawalpindi. Asif Mehfooz Farooqui (PW-6), Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 21 further stated that on 11.01.2002, Arif alias Hashim after receiving him and Daniel Pearl at Akbar International Hotel, Rawalpindi went to the reception, to enquire about the contact of Pir Mubarik Shah Gilani. He was told that the said person was booked in room No. 411. When they got to room No. 411, it was locked. Daniel Pearl waited outside room No. 411, while they went down to the dining area, where Arif alias Hashim introduced him to the contact under the name of Bashir (later identified as Ahmed Omar Sheikh). Thereafter, all three went to room No. 411, where they along with Daniel Pearl discussed Pir Mubarik Shah Gilani for around three hours. A week later, Daniel Pearl informed him that Bashir (later identified as Ahmed Omar Sheikh) had arranged a meeting with Pir Mubarik Shah Gilani in Karachi. 29. The testimony of Asif Mehfooz Farooqui (PW-6) was supported by Amir Afzal (PW-7), who introduced himself, as a receptionist in Akbar International Hotel, Rawalpindi. He independently confirmed that one Muzaffar Farooq (later identified as Ahmed Omar Sheikh) checked in room No. 411 of Akbar International Hotel, Rawalpindi at 18.15 hours on 11.01.2002 and checked out at 14.13 hours on 12.01.2002, and that an ‘English man’ came to meet him during his stay at the hotel. More importantly, the witness admitted having prepared the ‘check-in sheet’ (Exh.P10/4), which confirmed the particulars about the name of the guest (Muzaffar Farooq-later identified as Ahmed Omar Sheikh), and the time and date of check-in and check-out of the said guest. Thus, the contact of Pir Mubarik Shah Gilani, who had introduced himself as Bashir to Asif Mehfooz Farooqui (PW-6) and Muzaffar Farooq to Amir Afzal (PW-7), was later Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 22 identified by both the witnesses, as the same person, namely, Ahmed Omar Sheikh. Additionally, the evidence establishes that the deceit of Ahmed Omar Sheikh was fully known to Arif alias Hashim, as he was in complete knowledge of the two names he used in the hotel to hide his true identity, namely “Muzaffar Farooq”, when checking in as a guest, and as “Bashir” when being introduced to Asif Mehfooz Farooqui (PW-6) and Daniel Pearl. Still, the true extent of the deceitful design forming the conspiratorial agreement between Ahmed Omar Sheikh and Arif alias Hashim, was by then not clear, and only became evident as events were to unfold later in Karachi. 30. The next prosecution witness is Nasir Abbas (PW-1), who deposed that he was a taxi driver, and a ‘white man’ hired his taxi at around 3.30 P.M., who was dropped at around 07.00 P.M. on 23.01.2002, outside Village Restaurant, Metropole Hotel, Karachi, where he met a person (later identified as Ahmed Omar Sheikh) and sat with him and left in a White Toyota Corolla car. 31. Nasir Abbas (PW-1) and Asif Mehfooz Farooqui (PW-6) identified Ahmed Omar Sheikh in two separate Test Identification Parades carried out by Irum Jahangir (PW-9), Judicial Magistrate, on 26.02.2002 and 06.03.2002, respectively. Both courts below have held not only that the two identifying witnesses are independent and trustworthy, but also declared the proceedings of the Test Identification Parades carried out by Irum Jahangir, Judicial Magistrate (PW-9) to comply with the governing law. These findings on fact and law appear to substantially comply with the Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 23 settled principles on the matter and thus would have legal credence. 32. The objection raised by the defence to the veracity of the testimony of Nasir Abbas (PW-1) was that he did not mention to Faisal Afridi and Marianne Pearl on 24.01.2002 that Daniel Pearl met and went with someone in a white Toyota Corolla car after he dropped him outside Village Restaurant, Metropole Hotel, Karachi. This challenge of the defence, is not of much factual or legal significance. One must appreciate that when Nasir Abbas (PW-1) is first confronted by Faisal Afridi and Marianne Pearl on 24.01.2002, it was but natural and reasonable for them to be concerned with Daniel Pearl’s absence and not his abduction. In fact, according to the prosecution, the abduction of Daniel Pearl first surfaced when the email of 27.01.2002 was received. In these circumstances, it was logical and reasonable for Nasir Abbas (PW-1) in his initial statement of 05.02.2002 to the police under section 161, Cr.P.C., to not only mention but describe the person, Daniel Pearl last met and sat with in the white Toyota corolla car on 23.01.2002. It is worth noting that, when Nasir Abbas (PW-1) recorded his statement to the police under section 161, Cr.P.C. describing the “last seen” evidence, Ahmed Omar Sheikh was by then not in police custody, even according to the defence version. Thus, the assertion of the defence of police tutoring Nasir Abbas (PW-1) about the “last seen” evidence is contrary to the facts and bereft of merit. 33. More importantly, the findings of the two courts below regarding the veracity and the evidential value of the testimony of Nasir Abbas (PW-1) qua the “last seen” evidence of Daniel Pearl with Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 24 Ahmed Omar Sheikh on 23.01.2002 is neither absurd nor does it suffer from any misreading or non-reading of evidence. Similarly, the testimony of Asif Mehfooz Farooqui (PW-6), Amir Afzal (PW-7), and Nasir Abbas (PW-1) has concurrently been accepted as reliable and truthful, and the said three witnesses have been rightly declared to be independent and trustworthy. The careful review of their testimony establishes: i. that accused Ahmed Omar Sheikh was using multiple fake names (Bashir and Muzaffar Farooq) and was consistently trying to conceal his identity. ii. that accused Ahmed Omar Sheikh was the person who on 11/12.01.2002 met Daniel Pearl at Room No. 411 at Akbar International Hotel, Rawalpindi. iii. that Daniel Pearl was “last seen” with accused Ahmed Omar Sheikh on 23.01.2002 in a White Toyota Corolla car near Metropole Hotel, Karachi. 34. To ascertain what transpired after Daniel Pearl arrived in Karachi, and his being ‘last seen’ with Ahmed Omar Sheikh on 23.01.2002, the confessional statements of the accused and the digital evidence produced by the prosecution would become very crucial. 35. Starting with the confessional statement of Fahad Naseem. It was made before Irum Jahangir, Judicial Magistrate (PW-9), on 21.02.2002. The questions asked, the certificate signed by her, and Fahad Naseem’s response thereto, would be relevant. The same, as noted therein, are reproduced for reference, hereunder: Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 25 “FORM OF PROCEEDINGS IN RECORDING CONFESSION OF ACCUSED PERSONS (Section 164 of the Code of Criminal Procedure) In the Court of 1st Magistrate, South, Karachi The accused Fahad Naseem S/o Naseem Ahmed is brought by CIA Investigation Branch-II, Karachi Police Station before me at my Court at 1300 hours to have his confession recorded. A letter is given to me dated 21.02.2002 from the I.O. which is attached to the record. The offence is alleged to have been committed at Near Village Restaurant Towards East on 23.01.2002 at Nil and the accused is said to have been arrested at Flat No.01, Noman Grand City 6-C-J-B/No. 17 Karachi on 11.02.2002 at 0130 hours by Inspector Hameedullah Memon. The accused is placed in custody of Court staff and the Police is directed to leave the premises. The accused is warned that he is not bound to make a confession and that any statement he makes will be taken down in writing and may thereafter be used against him. He is then allotted time for reflection from 1300 to 1330 and during this period, the investigating police have had not access to him. The accused is again brought before me not in open Court but in my chamber because it is more appropriate. I have satisfied myself that there is no policemen in the Chamber or in any place whence the proceedings could be seen or heard. The accused is asked if he is disposed to make a confession of his own free will. He replies as follows: I want to give my statement with my own will. The body of the accused is examined with his consent and it is found that no mark of hurt or maltreatment. The accused is asked details as to the length of time during which and the duration wherein he has been in the custody of the police, do replies as follows:- I am in Police custody from 13/14 days. The accused is examined as follows, in order to ascertain whether he is disposed to make a confession of his own free will or under any inducement, threat or promise, the following and such other questions as may appear necessary to be made. (Every question and every answer to be recorded in full) Question:- Have you been given any inducement, threat or promise by the police or anyone else which induce you to make this confession? Answer: No. Question:- Have you been beaten, tortured or maltreated by the police? Answer: No. Question:- Has any family member of yours, male or female, been sent for by the police in order to pressurize you to confess? Answer: No. Question:- What are the circumstances which are inducing you to confess? Answer: I want to give this statement for my safety. Question:- Are you aware that I am a Magistrate, and if you make a confession, I am required to record it? Answer: Yes. Question: Are you aware that if you make a confession, it will be used against you at your trial and on its basis you may be convicted and sentenced for committing the offence of …..? Answer: Yes. Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 26 Question:- What have to say? Answer: I am Computer Programmer and I am free now a days because I am searching job. On 22-1-2002 my cousin Salman asked me to go with him for some important work and we will go at House No. D-17 in Muhammad Ali Society. Continued….. CERTIFICATE The accused make his confession and every question and answer is taken in full in writing, which is signed by him and also signed by me. The declaration required by Section 164(3) Criminal Procedure Code, is signed by me and appended and the whole is attached to the record. The confession has read over to the accused and he admitted it to have been correctly recorded. I am satisfied, for the following reasons that the confession made by the accused is voluntarily. The accused, after his confession has been recorded by me, is forwarded to the Central Jail, Karachi. Note: Mark of identification of accused Mole on left elbow. 21.02.2002 (Signature of Magistrate) (emphasis Provided)” 36. Given the above, it is noted that the steps taken by Irum Jahangir, Judicial Magistrate (PW-9), before and during the confessional statement of Fahad Naseem, clearly indicates that: firstly, all the requisite information to be communicated to the accused and questions to be asked therefrom, as mandated under sub-section 3 of section 164, Cr.P.C, were duly complied with; secondly, Irum Jahangir, Judicial Magistrate (PW-9) provided sufficient time and free space to Fahad Naseem to contemplate his decision to record the confession or otherwise; thirdly, the statutory certificate was signed by Irum Jahangir, Judicial Magistrate (PW-9), the recording Judicial Magistrate, and thereby raising a presumption of correctness within the contemplation of Article 91 of the Qanun-e-Shahadat, 1984; and finally, though the assurance to send Fahad Naseem was not recorded in the ‘form of proceedings’, he was not handed over to the police but remanded to judicial custody. 37. Additionally, there are three striking answers of Fahad Naseem to the questions asked by Irum Jahangir, Judicial Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 27 Magistrate (PW-9) before recording his confession, which would be relevant, within the contemplation of the exclusionary rule safeguarding voluntariness of confessions, as provided under Article 37 of the Qanun-e-Shahadat, 1984. The said questions, and the answers thereto by Fahad Naseem are that: Question:- Have you been given any inducement, threat or promise by the police or any one else which induce you to make this confession? Answer: No. Question:- Have you been beaten, tortured or maltreated by the police? Answer: No. Question:- What are the circumstances which are inducing you to confess? Answer: I want to give this statement for my safety. The answer of Fahad Naseem to the first two questions distinctly reflects his relaxed state of mind and ease, reflecting his voluntariness in rendering the statement. It is, indeed, the answer to the third question that raises doubt regarding the reason for his making the confessional statement. The matter is clarified when Fahad Naseem is put the same question in his statement under section 342, Cr.PC. The question and his response thereto, were recorded in terms that: Q. 16. It has come in evidence that you in your judicial confession Ex. 50-A before the Judicial Magistrate authorized to record the same in which you have implicated yourself as well as other accused persons regarding commission of crime of abducting ransom conspiracy raising of demand and taking all such steps which were necessary and incidental to the establishment of the offence committed by you. What have you to say? Ans. This is incorrect as the learned J. Mag. has frankly admitted before the court during the trial that judicial confession was result of torture and it was extorted from me by the police under duress. This statement being not voluntarily and is inadmissible in evidence and can not be accepted. 38. On a careful review of the above question and the response thereto, establishes that instead of explaining who or what threatened his safety, he introduced the factum of police torture, Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 28 which he had categorically denied at the time of recording his confession before Irum Jahangir, Judicial Magistrate (PW-9). Thus, it would not be appropriate to accept this new stance and that too at a belated stage. Had he explained the ‘inducement’ for his confessing, without being contrary to his earlier response, it could have been considered a valid ground to discard his confession, but he did not do so. 39. It seems the confusion regarding police torture on Fahad Naseem during his police custody first crept in, when Irum Jahangir, Judicial Magistrate (PW-9), during her cross-examination by the counsel for the accused Ahmed Omar Sheikh, stated that: “it is fact that the confession is not correct if it appears to the court, in case of the confession accused says that he is beaten by the police such confession is discarded. It is fact that to my question that whether accused was beaten tortured or maltreated by the police he replied that he has been maltreated and beaten and not today and not now. I am shown the confession at Page No. 02 it has been mentioned that body of the accused is examined which contains no finding and it is found that the finding as blank.” Later, the witness referring to the confessional statement of Fahad Naseem stated: “it is fact that from the confessional statement of the accused I am of the conclusion that the confession was not voluntarily, Because, voluntarily says that it is according to the circumstances of the case.” This assertion of Irum Jahangir, Judicial Magistrate (PW-9), has to be contextualized with her statement as a whole, and should not be considered in isolation, and that too without considering what Fahad Naseem actually Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 29 stated in response to the query of ‘police torture’ sought by the Judicial Magistrate before recording his statement. More importantly, there is no specific statutory requirement stipulated in section 164, Cr.P.C. mandating the Magistrate to inform the accused that he would not be sent back to police custody should he decide to render a confession or not. The essential element was the satisfaction of the recording Magistrate that the confessional statement was voluntary. The fact that the recording Magistrate affixed her signature on the certificate revealed her state of mind, that at the relevant time when the confessional statement was being recorded, the said confession was voluntary. Thus, the absence of the said specific instruction to the accused by the recording Magistrate cannot be the sole reason for the court to discard the voluntariness or relevancy of the confessional statement.20 40. On reviewing the matter, the picture that emerges is that: firstly, the issue of ‘police torture’ of Fahad Naseem was introduced during the cross-examination of Irum Jahangir, Judicial Magistrate (PW-9); secondly, that Fahad Naseem in his confessional statement out rightly denied being tortured during police custody; and lastly, Fahad Naseem, instead of explaining the ‘inducement’ he had for his ‘safety’, as referred to in his statement under section 342, Cr.P.C., took the cue of ‘police torture’ from the statement of Irum Jahangir, Judicial Magistrate (PW-9), and introduced the same in his statement under section 342, Cr.P.C., as a completely new stance. 20 Nanji vs The State (1957 CriLJ 199); Nakula Chandra Aich vs. State of Orissa (1982 CriLJ 2158) Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 30 41. Moreover, as noted earlier, there was a statutory presumption of correctness attributed to the confessional statement of Fahad Naseem, within the contemplation of Article 91 of the Qanun-e-Shahadat, 1984, and thus to rebut the same, prompt, serious and effective grounds were required to be agitated, which are not forthcoming in the present case. One may, in such circumstances, ignore the belated and bold retraction of his confession and proceed to consider his confession, as a substantial piece of incriminating evidence against him, and circumstantial evidence against the other co-accused. 42. Alternatively, the opinion of Irum Jahangir, Judicial Magistrate (PW-9), regarding the voluntariness of Fahad Naseem’s confession, which she expressed during her cross-examination, would best be appreciated, once we consider the same in juxtaposition with the confessional statement of Salman Saqib, and her opinion thereon at the time of recording the same, and her testimony as a witness. In this regard, it is noted that Salman Saqib rendered his confessional statement before Irum Jahangir, Judicial Magistrate (PW-9) on 01.03.2002. Two crucial glaring facts come to light, which appears to have escaped the attention of the recording judicial magistrate: firstly, the marked delay in recording his confessional statement qua his cousin, the co-accused Fahad Naseem, whom she had examined and recorded his confessional statement nine days earlier; second, the disturbing reply of Salman Saqib admitting to police torture during his police custody. The question and the reply thereto were as under: Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 31 Question:- Have you been beaten, tortured or maltreated by the police? Answer: I have been beaten but no at present. 43. What is pertinent to note is that there can be no single formula or set criteria for determining the voluntariness of a confessional statement. Each case has to be considered on its own particular circumstances and facts. In the case of Salman Saqib, it is noted with concern that there is a marked unexplained delay in his approaching the Judicial Magistrate for recording his confessional statement. This delay is made more profound because his cousin, Fahad Naseem, a co-accused in the present case, arrested on the same day as him, had earlier recorded his confessional statement, wherein he had implicated Salman Saqib. There is no explanation or circumstance, which would justify the said delay. Coupled with the distinct delay is the categoric statement of Salman Saqib being subjected to ‘police torture’ during his police custody. Thus, viewing these circumstances accumulatively, there remains no manner of doubt that the confessional statement of Salman Saqib is not voluntary, and thus it fails to pass the statutory test provided under Article 37 of the Qanun-e-Shahadat, 1984. 44. Given the above, the opinion of Irum Jahangir, Judicial Magistrate (PW-9), qua the voluntariness of the judicial statement of Fahad Naseem is contrary to the facts, and thus would not be of much legal value. Moreover, it is alarming to note that when it came to the confessional statement of Salman Saqib, who had actually stated to have been tortured in police custody, she did not with the same vehemence declare his confessional statement to Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 32 lack voluntariness. Even otherwise, the legal jurisdiction of the Judicial Magistrate recording the confessional statement of an accused is vested under section 164, Cr.P.C., which provides wide power to the recording Judicial Magistrate to refuse recording the confession, if it finds the same to lack voluntariness. But once, the certificate of correctness is signed, then the jurisdiction to adjudge the relevancy of confessional statement, within the contemplation of Articles 37, 38, 39 and 40 of the Qanun-e-Shahadat, 1984 vests upon the trial court, and not the Judicial Magistrate, who recorded the same. Thus, it may be safe to state that the opinion of Irum Jahangir, Judicial Magistrate (PW-9), as to the qualitative value of the statement made before her or the legal effect of existence of certain conditions or facts amounts to appreciation and evaluation of evidence, falls exclusively within the domain of the trial court to adjudge, and not the Judicial Magistrate, who had recorded the confessional statement. 45. To sum up, the confession of Fahad Naseem, shows the ease with which each material fact relating to his introduction to Ahmed Omar Sheikh and their discussions in the two meetings they had, was narrated with all essential details, which provides a complete picture of the criminal conspiracy leading to sending the ransom and death threat emails of 27.01.2002 and 30.01.2002, respectively. 46. Now, moving to the digital evidence, which links the accused Ahmed Omar Sheikh and Fahad Naseem to the charge of criminal conspiracy. Jawed Abbas (PW-3) produced different emails dated 27.01.2002 and 30.01.2002 (Exh.P/8). Importantly, the email dated Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 33 27.01.2002 (Exh.P/8) was stated to be sent from internet café and the identity of the sender could not have been established. Whereas, the email dated 30.01.2002, which according to the prosecution’s case was also sent by Fahad Naseem was proved through independent and qualified witnesses, namely, Shaikh Naeem (PW-14) and Mehmood Iqbal (PW-18). The said email read as under: “Our purpose was not to cause any trouble for Pakistan, only to take it out of the slave-mentality it has towards Amreeka. Look, we took captive only one amreekan and our government kicked up such a fuss. Are not those Pakistanis detained in Cuba human being? Why is our government silent about them? Are there not amongst them some who may be wrongly accused? Why are they not allowed to prove themselves in a proper court instead of being left to the brutal decision of a vengeful amreekan war machine? Pakistanis have a right that their government should try to safeguard their right to the utmost of its ability. Then there are those Pakistanis who are languishing in detention in amreeka but who has no connection to terrorism or to any crime whatsoever. Why are they not allowed access to courts and lawyers to speedily clear themselves? Mula Zaif was the ambassador to Pakistan. How dare Amreeka break all international standards and take him into custody? Is this not a great insult for all Pakistanis? Amreeka took the payment for the f-16s and it then refused to deliver them and also to return the money, why is the government tolerating such outrageous high-handedness by amreeka? That money belongs to the Pakistani government and we will damn well get it back. Brother pakistanis, we may be militarily and economically weaker than some countries, but we are not cowards. We have interrogated mr.D.Pearl and we have come to the conclusion that contrary to what we thought earlier he is not working for the cia. Instead he is working for mossaad. therefore, we will execute him within 24 hours unless amreeka fulfils our demands. we apologise to his family for the worry caused and we will send them food packages just as amreeka apologised for collateral damage and dropped food packets on the thousands of people whose mothers, fathers, sisters and brothers, wives, sons and daughters, grandparents and grandchildren it had had killed. We hope Mr danny’s family will be grateful for the food packets that we send them just as the amreekan public expected the afghans to be grateful for the food packets its airforce was dropping on them. We warn all amreekan journalists working in Pakistan that there are many in their ranks spying on Pakistan under the journalist cover. therefore we give all amreekan journalists 3 days to get out of Pakistan. anyone remaining after that will be targeted. Some of our brothers in the Pakistani government have assured us that they will do their best to ensure the rights of all Pakistanis in custody the world over. May God enable them to fulfil their promise. If they break their promise then rest assured that there are many pakistanis who are ready to take steps for their wrongfully suffering brothers. and many amreekans who are sitting ducks.” Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 34 47. Mehmood Iqbal (PW-18) deposed that he worked for the last six years in Web-Net Communication (“company”), an internet service provider firm, and he produced record from the computer server of the company, as Exh. 64-A. He testified that Mr. Zahoor Bashir the Security Manager of U.S Consulate on 31.01.2002, requested him to locate Internet Protocol (“IP”) addresses of two emails, including the forwarded email (pages 1 and 2 of Exh. 64-A), which in fact was the crucial ransom/death threat email of 30.01.2002, with following particulars: I. Sender’s email address as [email protected] II. Public IP address 202.5.147.3 III. Date and time (30-01-2002, 9:19:14 GMT) 48. From the record of Web-Net Communications (Exh. 64-A page 3 to 6), Mehmood Iqbal (PW-18) submitted that at the relevant time on 30.01.2002, the person, who emailed from strangepeoples@ hotmail.com used an internet connection, which was in the name of Shaikh Naeem (PW-14) against telephone number 8125028, who was one of the customers of the company (page 6 of Exh. 64-A). It may be noted that pages 4 and 5 of Exh-64-A contain the hyperlinks of the images sent through email ID [email protected]. 49. In this sequence, the testimony of Shaikh Naeem (PW-14) was that he was an internet cable provider and extended internet service to the users through cable. He further testified that on 08.02.2002, Hameedullah Memon, Inspector of Police (PW-23), visited him and inquired about how many users he had, and asked Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 35 about complete record of a specific user, who emailed on specific date and time. The witness further submitted that he provided him the Contract Form of the user, who had emailed the specific email, and the same was in the name of Fahad Naseem (Exh.58-A), a Compact Disk (CD) of log files from his local Server (three system generated log files) (Exh.58-B), and Payment Register/billing record (Exh.58-C). The Contract Form (Exh.58-A) was examined, it was in the name of Fahad Naseem, with a signature affixed thereon. I compared the said signature on the Contract Form with his admitted signatures on his two Wakalatnamas already placed on the record, and found the same to be of the same person. 50. During his cross examination, Shaikh Naeem (PW-14) further explained that Fahad Naseem was assigned a special User ID, which was password-protected, and the user was at liberty to change it at any time. He further deposed that the user was registered as User 66 in his internal record. He elaborated further that, he allocated private IP addresses to his users and the system at his end converted them to Public IP address allocated to him during transmission/translation process. The witness was subjected to a lengthy cross-examination, however, he established through system generated record (Exh.58-B), that an email from Hotmail account on 30.01.2002 at 14:19:43 PST was sent from the system of user allocated to Fahad Naseem. 51. Thus, from the digital foot-prints, as produced by Shaikh Naeem (PW-14) and pointed out by Mehmood Iqbal (PW-18), the two totally independent and professionally qualified persons, it is established beyond any reasonable doubt that email dated Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 36 30.01.2002 at 14:19:43 PST, which was sent from a Hotmail account, and it contained the information regarding kidnapping of Daniel Pearl and demands for ransom, originated from a connection owned by Fahad Naseem accused. These crucial pieces of evidence, regarding the email of 30.01.2002, create a complete digital chain, which leads to its origin, an account maintained in the name of Fahad Naseem. Accordingly, the requisite legal independent corroboration to the confession of Fahad Naseem has been duly provided by the two independent witnesses - Shaikh Naeem (PW-14) and Mehmood Iqbal (PW-18). When the digital foot print linking the email of 30.01.2002 to Fahad Naseem is considered in juxtaposition with his confessional statement, it completes the picture of how he met accused Ahmed Omar Sheikh and their discussions regarding the preparation and execution of sending ransom demands. 52. Keeping the prosecution evidence in its true and correct perspective, it is established beyond any reasonable doubt that: the identity of accused Ahmed Omar Sheikh, and him being part of the conspiratorial agreement with Arif alias Hashim and Fahad Naseem has been duly established; Ahmed Omar Sheikh was the person who met Daniel Pearl in Room No. 411 Akbar International Hotel, and was also ‘last seen’ with Daniel Pearl on 23.01.2002; the email dated 30.01.2002 at 14:19:43 PST was sent from the Hotmail account of accused Fahad Naseem on the directions of Ahmad Omar Sheikh. 53. As for Fahad Naseem, his confession confirms his guilt of being part of criminal conspiracy to abduct Daniel Pearl for Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 37 ransom. In this regard, he stated with such clarity that when he first asked about the details of the abduction, he was snubbed by Ahmed Omar Sheikh not to interfere in the said matter. However, he further candidly confessed that on 22.01.2002, Ahmed Omar Sheikh handed over to him, the written scripts of ransom note to be emailed, which he consented to send. Thus, the moment Fahad Naseem communicated his acceptance to Ahmed Omar Sheikh that the ransom demand in the written scripts would be emailed, he entered in the conspiratorial agreement to commit a crime, namely, a criminal conspiracy of abduction for ransom. His subsequent actions, thereafter, would not materially affect his culpability of committing the offence of criminal conspiracy. Indeed, it may constitute committing another crime – aiding or abetting the actual crime. In the present case, it is noted that his very act of emailing the ransom notes would constitute another crime - abduction of Daniel Pearl for ransom under section 365-A, PPC, which would be independent of his criminal culpability to commit the offence of criminal conspiracy of abducting him for ransom under section 120-A, PPC. 54. The confessional statement of Salman Saqib, as discussed earlier, lacks voluntariness within the purview of Article 37 of the Qanun-e-Shahadat, 1984. The other pieces of prosecution evidence that connect him to the crime are the testimony of Rajesh Kumar (PW-13) and Mohammad Arif (PW-16). These two witnesses depose the purchasing of printer, scanner and polaroid cameras by Salman Saqib. To my mind, their testimony is of no legal credence or value, as the very recoveries of the said incriminating articles, at the time Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 38 of arresting Fahad Naseem, are not beyond reproach. It is the case of the prosecution that Fahad Naseem was arrested from Flat No.01, Noman Grand City 6-C-J-B/No. 17 Karachi on 11.02.2002 at 0130 hours, and on search of the said premises, a Del laptop, printer, scanner and written scripts of notes in Urdu and English were recovered. It does not appeal to reason and common sense that a person, who has sent via emails, ransom and death threats, would retain the written scripts thereof, to be recovered from his dwelling after eleven days of committing the crime. More than that, what has cast a serious doubt upon the time, place and manner of arrest and the recoveries made therefrom, is the testimony of another prosecution witness, Ronald Joseph (PW-8) who testified that he was handed over a Del Laptop for forensic examination on the evening of 04.02.2002 at the United States of America Consulate at Karachi. In addition, Ronald Joseph (PW-8) produced two Reports, which the prosecution claims to have forensically confirmed that the examination of the hard disc of the subject Del Laptop by Ronald Joseph (PW-8) had commenced on 07.02.2002. These facts completely contradict the prosecution’s version of recovering Del laptop on 11.02.2002. Similarly, the other recoveries made in the same raid on 11.02.2002, and in particular, the printer and the scanner would also become doubtful. Indeed, when one piece of evidence recovered is found to be tainted, then relying on the other incriminating material recovered therewith would not be just and legally correct. Thus, reliance thereon in any manner would be against the safe administration of criminal justice. Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 39 55. Thus, the only evidence to link Salman Saqib with the crime is the confession of the co-accused Fahad Naseem. This single piece of evidence could not be more than circumstantial evidence, and would not alone, suffice to prove that Salman Saqib is guilty of committing criminal conspiracy to abduct Daniel Pearl for ransom. Convicting a person solely on the basis of the confession of a co- conspirator on the strength of Article 23 of the Qanun-e-Shahadat, 1984 would surely run counter to the settled principles of safe administration of criminal justice enshrined in Article 37 (supra). Thus, when the judicial confession of Salman Saqib has been legally discarded, then there remains no reliable evidence, other than mere suspicion of him being part of the conspiracy. This being so, the condition precedent of there being ‘reasonable grounds to believe’ Salman Saqib was part of a conspiratorial agreement, as envisaged under Article 23 of the Qanun-e- Shahadat,1984 was starkly lacking. Accordingly, the statements, writings or actions of Fahad Naseem could not implicate Salman Saqib to be part of the criminal conspiracy, within the contemplation of Article 23 of the Qanun-e-Shahadat, 1984. In these circumstances, one can safely conclude that the prosecution did not produce sufficient trustworthy evidence to prove the charge of criminal conspiracy against Salman Saqib. As compared to Salman Saqib, the case of the prosecution against Sheikh Adil, is much weaker. Apart from the judicial confessions of Fahad Naseem and Salman Saqib, prosecution was unable to produce any credible evidence against him. And when the judicial confession of Salman Saqib has been legally discarded Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 40 for being not voluntary, the only evidence against Sheikh Adil for committing criminal conspiracy to abduct Daniel Pearl for ransom is the statement of a co-conspirator, namely Fahad Naseem. As discussed earlier, the sole statement of a co-conspirator would not fulfill the condition precedent of there being ‘reasonable grounds to believe’ Sheikh Adil was part of a conspiratorial agreement, as envisaged under Article 23 of the Qanun-e-Shahadat,1984. Charge of Abduction 56. Both the courts below have concurrently found that the prosecution has proved the charge of abduction of Daniel Pearl against Ahmed Omar Sheikh. It is with regard to the proof of demand of ransom by the accused that the appellate court has rejected the stance taken by the prosecution. This has led Ahmed Omar Sheikh to challenge his conviction and sentence for abduction under section 362, PPC awarded by the appellate court.21 57. The prosecution has built the case of abduction on the following pieces of evidence: (i) the “last seen” evidence of him being with Ahmed Omar Sheikh, as testified by Nasir Abbas (PW-1); (ii) and also his identifying Ahmed Omar Sheikh in an identification parade carried out by a Judicial Magistrate; (iii) the supporting testimony of Jameel Yousaf (PW-2); (iv) and the adverse inference drawn from Ahmed Omar Sheikh being unable to reasonably justify his meeting and taking Daniel Pearl in the white Toyota Corolla car on 23.01.2002, and his whereabouts thereafter, in his statement under section 342, Cr.P.C. 21 Criminal. Appeal No. 602 of 2020 Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 41 58. It is important to note that the prosecution claims to have arrested Ahmed Omar Sheikh during the night of 13.02.2002 from a place near Jinnah International Airport, Karachi and recovered from his possession his personal belongings, which included written scripts of the ransom and threat emails of 27.01.2002 and 30.01.2002, CNIC in the name of Muzaffar Farooq, a photocopy of CNIC in the name of Bashir, and receipts of purchases of polaroid cameras, scanner and printer. To start with, it does not hold to reason for any criminal, more so of one, whom the prosecution claims to be an international terrorist, to have in his possession such incriminating pieces of evidence almost twenty-one days after having committed the crime. Reason, logic, and common sense belies this very stance of the prosecution. Hence, all the recoveries made from Ahmed Omar Sheikh at the time of his arrest are undoubtedly suspicious, and thus, warrant to be discarded from consideration against the accused. 59. Similarly, the prosecution version relating to the arrest of Fahad Naseem from a flat on 11.02.2002 at 0130 hours, and the recovery of a Del laptop, and other incriminating evidence also begs reasonable explanation.22 It is difficult to fathom that a criminal would retain such incriminating evidence in his dwelling place after committing the crime. More strikingly, the testimony of another prosecution witness, Ronald Joseph (PW-8) casts a very serious doubt on the recoveries so adamantly presented by the prosecution. These facts completely contradict, the case of the 22 Paragraph 54. Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 42 prosecution, as to the recovery of Del laptop on 11.02.2002 at the time of arresting Fahad Naseem. 60. The worthy counsel for the parents of Daniel Pearl, when confronted to the above contradiction in the prosecution evidence, contended that the same be considered, as being ‘fruits of a poisonous tree’ and be held reliable, being admissible in evidence. The contention of the learned counsel, in the circumstances of the present case, is rather misplaced. From the forensic reports it has not been legally established that the recovered Del Laptop was linked to Fahad Naseem. The only evidence to link the two was the recovery of the Del laptop from the flat, wherefrom Fahad Naseem was arrested on the night of 11.02.2002. When the date of his arrest is made doubtful by the very statement of Ronald Joseph (PW-8) and the Reports, the link between the emails in the hard disc of the Del Laptop and Fahad Naseem is broken. Had the Report contained any private material relating to Fahad Naseem, independent of the ransom notes, the crucial independent link between him and the Del laptop would have been established, and the principle of ‘fruits of a poisonous tree’ could have been applied. In absence thereof, the contents of the Reports would be of no legal effect against accused Fahad Naseem. Similarly, the recovery of the printer and the scanner and its link to Fahad Naseem would also become doubtful, and thus could not be taken in evidence against him or any other co-accused. 61. The defence has also produced Rauf Ahmad Sheikh (DW-1), a serving District & Sessions Judge, who testified that he on 05.02.2002 personally took Ahmed Omar Sheikh to the residence Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 43 of Mr. Javed, D.I.G. Lahore situated at G.O.R-I, Lahore, and made him surrender in the instant case. The very fact that a serving District & Sessions Judge undertakes to render his testimony in a criminal case in support of the accused, even if he is related to him, should not be taken lightly, especially, when he states, the time, place and person before whom Ahmed Omar Sheikh surrendered. In such circumstances, the prosecution could have moved the trial court to summon Mr. Javed, a serving Deputy Inspector General of Police, as a witness to testify otherwise which they did not. 62. The above discussion, safely establishes, without any manner of doubt, that Daniel Pearl was ‘last seen’ with Ahmed Omar Sheikh, and the evidence to that effect has correctly and concurrently been held worthy of credence by the two courts below. To my mind, there appears no valid ground to differ with the said findings of the two courts below. 63. Once the prosecution has proved that Daniel Pearl was “last seen” with Ahmed Omar Sheikh, then the “legal burden” under Article 117 of the Qanun-e-Shahadat, 1984 on the prosecution would stand discharged. And then for the accused to avoid conviction for the charge of abduction, he would have to discharge the “evidential burden” under Article 122 (supra) to provide a plausible explanation or produce evidence of facts to nullify the stance established by the prosecution. A mere bold evasive denial of Ahmed Omar Sheikh in his statement under section 342, Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 44 Cr.P.C. would not legally suffice to escape criminal culpability.23 Similarly, the confessional statement of Fahad Naseem duly corroborated by independent evidence has established beyond any manner of doubt that accused Fahad Naseem in the execution of conspiratorial agreement with accused Ahmed Omar Sheikh sent the email, making the demand for ransom for the release of Daniel Pearl. 64. In view of the above, the prosecution has successfully proved the charge of abduction for ransom under Section 365-A, PPC against accused Ahmed Omar Sheikh and Fahad Naseem. Charge of Murder 65. The main thrust of the prosecution to prove the charge of murder against the accused was based on four pieces of evidence:(i) “last seen” evidence of Nasir Abbas (PW-1); (ii) the video recording of the murder scene tendered in evidence by John Mulligan (PW-12); (iii) the admission of Ahmed Omar Sheikh that Daniel Pearl was dead during the remand proceedings before the Judicial Magistrate on 14.2.2002; and (iv) the wide press reporting of the said admission. (i) Last Seen Evidence 66. “Last seen” evidence is merely a circumstantial evidence, and that too a weak type of evidence, which alone cannot sustain the weight of a capital punishment, and would require other independent corroborative evidence to effect conviction. In a case of murder, where the prosecution case rests on “last seen” evidence, then corroboration would be required from other circumstantial 23 Rahmat v The State (PLD 1997 SC 515); (AIR 1927 Lah. 541); (PLD 1956 FC 123); (1972 SCMR 15); PLD 1966 SC 644. Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 45 evidence; each piece of such evidence would have to be proved to complete the chain, stemming from the accused being “last seen” with the deceased, leading to his death. To achieve this, the prosecution has to prove that the death of the deceased took place in close proximity to the time and place, where the accused was “last seen” with the deceased. Thus, the evidentiary value of the “last seen” evidence of an accused with the deceased will depend upon the facts and circumstances of each case, and for a court to reach a conclusion of guilt of the accused, such circumstances must not only be proved, but must also be found to be incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt.24 67. Given that the prosecution proved the “last seen” evidence of Daniel Pearl before his disappearance being in the company of Ahmed Omar Sheikh, would not legally suffice to prove the charge of murder against Ahmed Omar Sheikh. As correctly observed by the appellate court, what was essential for the “last seen” evidence to be materially relevant in proving the charge of murder was when there was evidence to prove that the time and place of the murder of Daniel Pearl was in close proximity to where Daniel Pearl was “last seen” with Ahmed Omar Sheikh. As the prosecution failed to produce any such evidence, the said confirmed judicial finding on the “last seen” evidence would be of no avail to prove the charge of murder against Ahmed Omar Sheikh, much less the other three accused. 24 Khurshid vs. The State (PLD 1996 SC 305) Muhammad Amin vs The State (2000 SCMR 1784) Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 46 (ii) Video Recording 68. John Mulligan (PW-12) produced a video cassette recording of a murder scene. The prosecution contended that the same was of Daniel Pearl, while the defence vehemently disputed the same. The law regarding admission of audio or video evidence has recently been considered in the case of Ishtiaq Ahmed Mirza and others v Federation of Pakistan25, wherein, inter alia, it was held that not disclosing the source of obtaining the video or forensically confirming it not to be tampered would render its admissibility at naught. In the present case, it is noted that the prosecution was neither able to produce any evidence regarding the source of the said video recording nor proved forensically that the same was not tampered. More importantly, as recorded by the appellate court, the video cassette recording did not show any of the accused committing the offence or being present at the time and place of occurrence shown in the video. Thus, the video cassette recording produced by the prosecution is of no legal avail to prove the charge of murder against all four accused. (iii) Admission made on 14.2.2002 69. The prosecution has produced four witnesses namely Faisal Noor (PW-4), Ather Rasheed Butt (PW-5), Rao Muhammad Aslam (PW- 22) and Hameedullah Memon (PW-23), all contending that Ahmed Omar Sheikh during his first remand proceedings before the Arshad Noor Khan, Administrative Judge, Anti-Terrorism Court-III, Karachi admitted, inter alia; that he had abducted Daniel Pearl, who was by then dead. The prosecution further contends that this 25 (PLD 2019 SC 675) Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 47 admission on the part of Ahmed Omar Sheikh was widely published in the national newspapers. 70. Arshad Noor Khan, Administrative Judge, Anti-Terrorism Court, Karachi before whom the alleged admission was stated to have been made on 12.04.2002 was not produced as a witness by the prosecution. The reason asserted by the prosecution for not producing him as a witness was that Article 4 of the Qanun-e- Shahadat, 1984 barred a Magistrate to be produced for the said purpose. This submission is contrary to the record. All four prosecution witnesses produced to prove the said admission of Ahmed Omar Sheikh, in consonance testified that the admission of Ahmed Omar Sheikh was made, while he addressed the Presiding Judge, Arshad Noor Khan, Administrative Judge, ATC, Karachi in the court room, and that too in the presence of local and foreign journalists. This being so, the non-production of Arshad Noor Khan, Judge, ATC, Karachi after applying for the requisite permission from the Federal Government and the High Court of Sindh nullifies their final contention that the judicial officer could not be produced in view of the bar contained in Article 4 of the Qanun-e-Shahadat, 1984. The matter became more profound, as Arshad Noor Khan, Judge, ATC was present before the Anti- Terrorism Court, Hyderabad on 22.05.2002 to record his testimony, when on the same day, the prosecution moved an application for his withdrawal, as a prosecution witness. 71. It is also noted that the order sheet of the remand proceedings of 14.02.2002 is silent regarding the asserted admission of Ahmed Omar Sheikh. It was, thus, more of a reason Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 48 for the prosecution to have produced Arshad Noor Khan, Judge, ATC, Karachi, as a prosecution witness. His testimony was the ‘best evidence’ available with the prosecution to prove the asserted admission of Ahmed Omar Sheikh. This act of withdrawing the name of Arshad Noor Khan, as a prosecution witness, by itself, renders an adverse inference against the prosecution, within the contemplation of Article 129(g) of the Qanun-e-Shahadat, 1984. (iv) Press reports of Ahmed Omar Sheikh’s admission 72. As for Press reports regarding the alleged statement of Ahmed Omar Sheikh is concerned, as discussed in detail earlier26, when the authors of press reports have not been produced to own their reporting, admitting the said reports, and that too, as proof of the contents thereof, would be against safe administration of criminal justice. 73. In view of the above deliberations, we find that the prosecution has failed to prove the charge of murder against all four accused. Charge of Terrorism 74. The term “terrorism” has been defined in section 6 of Anti- Terrorism Act, 1997. A Larger Bench of this Court in the case of Ghulam Hussain v. The State27, has explained what acts would constitute an offence triable under the ATC. After deliberating exhaustively on the conflicting precedents, this Court finally held that: “16. For what has been discussed above it is concluded and declared that for an action or threat of action to be accepted as terrorism within the meanings of section 6 of the Anti- Terrorism Act, 1997 the action must fall in subsection (2) of section 6 of the said Act and the use or threat of such action must be designed to achieve any of the objectives specified in clause (b) of subsection (1) of section 6 of that Act or the use 26 Paragraph 16 and 17. 27 (PLD 2020 SC 61) Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 49 or threat of such action must be to achieve any of the purposes mentioned in clause (c) of subsection (1) of section 6 of that Act. It is clarified that any action constituting an offence, howsoever grave, shocking, brutal, gruesome or horrifying, does not qualify to be termed as terrorism if it is not committed with the design or purpose specified or mentioned in clauses (b) or (c) of subsection (1) of section 6 of the said Act. It is further clarified that the actions specified in subsection (2) of section 6 of that Act do not qualify to be labelled or characterized as terrorism if such actions are taken in furtherance of personal enmity or private vendetta.” (emphasis supplied) 75. When the facts of the present case are reviewed, it is noted that the motive of the crime was not any private dispute or vendetta against the Daniel Pearl, but went beyond it. The contents of the ransom and death threat email of 30.01.2002, make it clear that the motive of the accused to carry out the crime did not relate to any private dispute or vendetta with Daniel Pearl, but in fact, the matter was clearly the use of a threat designed to intimidate not only the Government of Pakistan, but also the foreign government and organisations to create a sense of fear and insecurity in the society. Thus, viewing the ‘design’ and ‘purpose’ of the Ahmed Omar Sheikh and Fahad Naseem to carry out the abduction of Danial Pearl for ransom, in the light of the principle laid down in Ghulam Hussain’s case (supra), brought the commission of the crime within the mischief of the term “Terrorism”, as envisaged under clause (b) of subsection (1) of section 6 of the ATA, 1997 76. Thus, it would be correct to state that the prosecution was not only able to prove that the acts of Ahmed Omar Sheikh and Fahad Naseem, constituted ‘abduction for ransom’ within the purview of clause (e) of sub-section 2 of section 6, and the ‘design’ and ‘purpose’ of the crime, fall squarely in term of clause (b) of sub-section 1 of section 6 envisaged under ATA, 1997. Accordingly, Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 50 Ahmed Omar Sheikh and Fahad Naseem are found guilty of the offence of terrorism punishable under Section 7 of the ATA, 1997. 77. As for the reliance of the learned counsel for the parents of Daniel Pearl upon the judgment in Nazir Khan and others v. State of Delhi28 delivered by the Supreme Court of India, wherein, Ahmed Omar Sheikh along with others were stated to be nominated accused persons in FIRs registered in different Police Stations in Delhi, India for the offences of kidnapping foreigners for ransom; suffice it to state that Ahmed Omar Sheikh was never charged, tried or convicted in any of said cases. Thus, the cited judgement cannot be read or construed against him in any manner, whatsoever. Inordinate delay- Right to expectancy of life 78. It is extremely disturbing to note that the appeal of Ahmed Omar Sheikh against the conviction and sentence of death passed by the Anti-Terrorism Court dated 15.07.2002 remained pending before the High Court of Sindh for almost two decades. Admittedly, it is not the case of the prosecution that Ahmed Omar Sheikh delayed or was in any manner a cause for the delay in deciding his appeal. This being so, the State, and in particular, its criminal delivery system, is responsible for his prolonged incarceration in the death cell, without providing him his right to be dealt with in accordance with the law; of being heard by an appellate court in a reasonable time. This prolonged incarceration of around two decades in the death cell gave rise to his ‘right to expectancy of life’, entitling him to the sentence of life imprisonment, and not 28 (AIR 2003 SC 2247) Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 51 death. Even otherwise, when two worthy brother Judges having acquitted Ahmed Omar Sheikh of all charges, convicting and saddling him with the sentence to death, would not be akin to safe administration of criminal justice. Conclusion In view of the above deliberations, it is my considered view that: I. The prosecution has not been able to prove the charges framed against Salman Saqib and Sheikh Mohammad Adil, and they have been rightly acquitted by the learned Appellate Court. Therefore, Criminal Appeal No. 600 of 2020 & Criminal Petition No. 1086 of 2020 against their acquittal are dismissed and the judgement of the learned Appellate Court is maintained. II. The prosecution has been able to prove beyond reasonable doubt that Ahmed Omar Sheikh and Fahad Naseem have committed the offences under Section 365-A, PPC, Section 7 of the Anti-Terrorism Act, 1997 and Section 120-B, PPC, thus, they are convicted for the said offences and sentenced to imprisonment for life on each count. Hence, Criminal Appeal No. 599 of 2020 and Criminal Appeal No. 600 of 2020 (to the extent of Fahad Naseem) are allowed and Criminal Petition No. 1085 of 2020 and Criminal Petition No.1086 of 2020 (to the extent of Fahad Naseem) are converted into appeal and is also allowed and the judgement of learned Appellate Court is modified, accordingly. III. Criminal Appeal No. 601 of 2020 for enhancement of sentences (passed by the trial court) of Fahad Naseem, Criminal Appeals No. 599, 600, 601 & 602 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 52 Salman Saqib and Sheikh Muhammad Adil accused is dismissed. IV. Criminal Appeal No. 602 of 2020 filed by Ahmed Omar Sheikh against his conviction and sentence is also dismissed. The above deliberations were in furtherance of views rendered in the short order (minority view) dated 28.01.2021, which reads: “For the reasons to be recorded later, Criminal Appeals No. 599, 600 & 601 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 are partly allowed in the terms that Ahmed Omer Shaikh and Fahad Nasim are convicted under sections 365-A & 120-B, PPC and section 7 of the Anti-Terrorism Act, 1997 each and sentenced to imprisonment for life on each count. All the sentences passed against both of the convicts shall run concurrently. The benefit under section 382-B, Cr.P.C. shall be extended to them. To the extent of Syed Salman Saqib and Shaikh Muhammad Adil Criminal Appeals No. 599, 600 & 601 of 2020 and Criminal Petitions No. 1085 & 1086 of 2020 are dismissed and their acquittal is maintained on all the charges, they shall be released from the jail forthwith if not required to be detained in connection with any other case. Criminal Appeal No. 602 of 2002 filed by Ahmed Omer Shaikh is dismissed.” Judge

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.6-P/2010 (Against the judgment dated 14.5.2009 passed by Peshawar High Court, Peshawar in Cr. Revision No.158/2002) Alamgir …Appellant(s) VERSUS Gul Zaman & others …Respondent(s) For the Appellant(s) : Mr. Astaghfirullah, ASC For Respondent No.1 : Nemo. For the State: : Barrister Qasim Wadud, Additional Advocate General, Khyber Pakhtunkhwa Date of Hearing : 29.04.2019 ORDER Qazi Muhammad Amin Ahmed, J. Through leave of the Court, impugned herein is judgment dated 14.5.2009, whereby a learned division bench of the Peshawar High Court altered respondents’ conviction from clause (b) of Section 302 of the Pakistan Penal Code, 1860 into clause (c) thereof. The issue has arisen out of incident dated 10.8.2006 within the remit of Police Station Lund Khwar, District Mardan reported by Alamgir, appellant herein; he arrayed the respondents as well as one Umar Din in the crime report for committing qatl-e-amd of his father Gul Mehmood, who surprised them while cutting branches of keekar tree and excavating stones from his area. The Criminal Appeal No.6-P/2010 2 appellant endured the assault, however his father succumbed to the injuries. While Umar Rehman co-accused stayed away from law, indicted by a learned Additional Sessions Judge, the respondents were returned a guilty verdict on multiple counts; for qatl-e-amd of Gul Mehmood deceased they were convicted under clause (b) of the Section ibid and sentenced to imprisonment for life along with direction to collectively pay diyat to the tune of Rs.3,65,921/-, to be apportioned amongst the legal heirs. In appeal the learned High Court set aside diyat amount and instead directed payment of compensation in the sum of Rs.50,000/- each; respondents’ conviction was altered from clause (b) into clause (c) of the Section ibid. 2. Learned counsel for the appellant has primarily assailed modification in conviction and sentences consequent thereupon on the ground that there was no occasion for the learned High Court, to modify conviction and sentences, rightly settled by the learned trial Court. It is further argued that the respondents with available weapons took the life of an innocent person ‘massom-ud-dum’, without provocation and thus were liable to be visited with the penalty commensurate with the crime believed to have been committed at their hands by both the Courts below. The learned Law Officer has defended the impugned judgment. 3. It is prosecution’s own case that occurrence took place in a sudden encounter with no previous bad blood; weapons used in the occurrence though formidable in circumstances were nonetheless not choice selection to mount an assault. Accused side also suffered injuries, conspicuously omitted in the crime report. Spot inspection sans presence of tree branches or excavated stones. Scenario spells out a situation that no one anticipated; once started it aggravated, resulting into injuries to the both, with a heavier toll on the complainant’s side. In circumstances respondents’ liability more aptly fall within the mischief of clause (c) of Criminal Appeal No.6-P/2010 3 Section ibid. The view taken by the learned High Court is inconsonance with the law declared in the case titled Ali Muhammad versus Ali Muhammad and another (PLD 1996 SC 274), reaffirmed in the case titled …… versus The State. It is by now well settled that situations earlier covered by erstwhile provisions of Section 304 of the Code ibid are not catered by clause (c) of aforesaid section of law. Impugned view being well within the remit of law calls for no interference. Appeal is dismissed. JUDGE JUDGE Islamabad, the 29th of April, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE GULZAR AHMED MR. JUSTICE DOST MUHAMMAD KHAN MR. JUSTICE QAZI FAEZ ISA Criminal Appeal No.6-P of 2015 (On appeal from the judgment dated 19.12.2013 passed by the Peshawar High Court, Peshawar in Cr.R.42-M of 2013) Irfan and Mehboob Ali ….Appellants Versus Muhammad Yousaf and another ….Respondents For the appellants: Mr. Altaf Samad, ASC For the State: Mr. Aslam Ghumman, ASC for A.G. KPK Date of hearing: 6.4.2016 JUDGMENT Dost Muhammad Khan, J.— Through this appeal with the leave of the Court dated 6.3.2015, the appellants have questioned the legality and propriety of the judgment of the Peshawar High Court dated 19.12.2013 whereby Criminal Revision Petition No.42-M of 2013, filed by the appellants was dismissed and the prayer for accepting the compromise, affected between the parties was declined in the manner, as was done by the Trial Court. We have heard the learned ASC for the appellants and Mr. Aslam Ghuman, learned ASC appearing on behalf of A.G. KPK and have gone through the record. 2. It is an admitted position that the trial Court, upon conviction, awarded death sentence on one count to the appellants albeit it was stated in the judgment that the conviction so awarded u/s 302(b) PPC shall be read with s.7 (a) ATA. Crl.A.6-P/15 2 3. Both the appellants were charged for causing the death of Mst. Naheed through strangulation as she was an obstacle in the way of one of the appellants, namely Irfan, who had developed love affairs with Mst. Ghazala, however, further allegations were made that 15 tolas gold ornaments and cash amount of Rs.65,000/- was also taken away by the appellants. Case F.I.R No.1266 was registered on 30.12.2004 u/Ss.302, 404/34 PPC read with s.7(a) ATA by Police Station, Mingora, District Swat. After conviction, the appellants filed appeal before the Peshawar High Court, however, while partly allowing the appeal, their sentence was reduced to life imprisonment but only u/s 302 PPC and nothing was said in the judgment or in the Reference sent by the Trial Court that the death sentence u/s 7 (a) ATA was confirmed. Probably, the Division Bench of the High Court was mindful that they were convicted u/s 302 PPC on a single count and no sentence of death was awarded u/s 7 ATA. 4. Similarly, this Court while dismissing their leave petition, did not take notice of this omission, made by the Trial Court and then by the High Court because in the judgment of this Court too, the sentence of life imprisonment u/s 302(b)/34 PPC and the imprisonment of three years R.I. with fine of Rs.50,000/- each u/s 404 PPC alone was maintained with further modification. 5. Although it was an omission on the part of the Trial Court, not awarding separate sentence u/s 7 (a) ATA but that legal error was not corrected or to say rectified by the High Court nor by this Court in its judgment dated 24.03.2009 therefore, for all legal intents and purposes it shall be construed without exception that both the appellants were convicted only u/s 302(b)/34 PPC read s.404 PPC. Crl.A.6-P/15 3 6. Under the provisions of s.367 (2) and (3) Cr.P.C. it is mandatory for the Court that after finding the accused guilty of one or more offences, upon recording conviction, separate sentence must be clearly awarded to the accused so convicted otherwise it would be illegal being in violation of the mandatory provisions cited above. In this case, no separate sentence was awarded to the appellants u/s 7(a)ATA by the Trial Court or the High Court, as explained above. This legal aspect of vital importance, conveniently escaped from the notice of the Trial Court and the learned High Court in the second round when the appellants were seeking acquittal on the basis of compromise u/s 302(b) PPC alone, because it cannot be construed nor it is permissible under the law to hold that the appellants were impliedly sentenced to imprisonment for life u/s 7(a) ATA as well. The provision of s.367 Cr.P.C provides that the Court determine first the guilt of the accused and then to pass judgment of conviction where- after the sentence shall follow. Being inseparable and integral part of conviction, unless specifically awarded, it cannot be assumed to the prejudice of the accused that he/they were also sentenced u/s 7 (a) ATA by applying the rule of implication because the law provides the passing of specific sentence for a distinct offence and if it is not awarded, it cannot be construed that same was impliedly awarded as the very judgment to that extent becomes illegal and violative of the mandatory provisions of sub-sections (2) and (3) of S.367 Cr.P.C. 7. Both the offences u/Ss.302 and 404 PPC are compoundable and when the State/Prosecution has not taken any exception to the legal error, so committed by the Trial Court and thereafter by the High Court in the first round of litigation then, at this Crl.A.6-P/15 4 belated stage, it cannot agitate that the necessary modification be made in the conviction and sentences of the appellants and they be further convicted and sentenced u/s 7(a) ATA as well, because the matter is now past and closed transaction and cannot be re-opened. 8. Even otherwise, the applicability of s.7(a)ATA was a begging question because the ingredients constituting that offence are missing in the case, however, at this stage, we are not suppose to further discuss this aspect of the matter. 9. We are of the considered view that both the foras below have committed legal error by not accepting the compromise on the ground that the appellants were also charged and convicted by the Trial court u/s 7(a) ATA. The learned ASC for the State was unable to controvert this legal position, emerging out of the two judgments, referred to above and when he was asked that what the State would gain if the compromise is refused, when the legal heirs of the deceased have received a handsome compensation amount as Diyat from the appellants, he was unable to satisfy the Court in any manner. Accordingly, this appeal is allowed. Both the impugned judgments of the learned Courts below are set aside and the case is sent back to the learned Trial Court, who, after verifying the genuineness of the compromise to its satisfaction shall accept the same and acquit the appellants on the basis thereon. JUDGE JUDGE JUDGE Islamabad, the 6th April, 2016 Nisar /- Approved for reporting.

ن�� � ِ�ا� )��ا �� ر�اِ( د��: � ،ن� � �ود � ب�  � ب�� �� ��� ، �،ب� � � ب� ىرا�� ى� �ا ٦٠٩/٢٠١٤  � ِ�ز)٣(١٨٥،ر�دِِ �ر� ��ا  ل� �� ن��١٩٧٣� )� ف�ِ � �� ِ�ا�،ر��ر���ہر ١٧� ٢٠١٣�  �ىرا��ى� �ا�� ٢٠٠٩/٦٥٥۔٦٥٦( ہ�و �ا )����ن( م� ر��ہ�و  )� ل�( ��� ���ن: �ا � �ار� ِ�ا� ، �و �� ،  ،� م� ں�� ِ�ا� ،�و �)�� �( ر�� ��:  ��ا ،قور� �ا �ز ىر��ب� ر�� ِ�و  ��� ل�: � �� ِ�� ِ�ر��� : ٢٤�ىر، ٢٠١٧ � Crl.A. No. 609 of 2014 2 /� �آ ِ� � ،ن� � �ود:۔  ٔ�� ���: و� تز�ا � ا� �ا �ر� � �٢٤،�� ٢٠١٤  � ں�ود �� � � ىد � ��� �� ِ��  ف� � ے�ود �ا � ��ٔ�و روا � � ىرا��د د� �ارا �ز� ��� � � �  � �ان���   � �ر � م���� ��  �ا� � ا� �� � ��ا ں� روا � � � ر�  �و �آ �ا � � �� روآ � � ے�ود �ا �� ں�ود�� ۔ا� ل�ا ہ  �ا ��� �و �� � ف� � ن��� � ا� �  دا�ا ود � ف� � �  روا �ا ن�  � ��ا ن�ا� � �او � �ا روا � � � ل�ا �و�١٤ روا ١٥حو� ۔�� ٢۔  ٹر�ر ��ا �ا�ا ��� ہد�� �٥٠٦�  �ر١٠۔٠٧۔٢٠٠٣ ہ� � �� � �  ت�د ِ�ز � د�آ � �  ،-F(v) ٣٠٢،١٤٩ ،١٤٨ ،٣٢٤ ،٣٣٧ �د ِ�ز روا-A(ii) ٣٣٧  �   �د١٤٩ ن�� تا�� ِ،�ا�رد ى��  ںازا � د� � � �و �، � � جرد � و م� � � ں�:۔ " �ر� جآ١٠ ��� ٢٠٠٣� � ٦ �� � �  ں�ود � � � �ز � �� ى�  � �ا و � � ��)ل� (�و �ا �۔� �� �� ��روا �و �� ہا� ن� �� ١٥ �� � � � � ں�دآ )١ ( �ا �و �ا)٢( �ا �و ر� )٣ ( �ا �و ب�)٤ (�ا �و ��)٥ (ق� �� �و )٦ ( �� �و �ا )٧ ( م� �و �)٨ (� ں�ن م� �و )٩ (� �و قد�،� ��ا لوا � �    ت� � ں�� ن� �� � � � � �د� ن� � � � � �� ىر� ا � � � � ۔�د � عو� �� � � �ارا�� � �و ،ا � �و  ،ڑورا �و �  و�ل � � �و �ا � � ں�و م�ا �و �ا ،� �و �و� ، )ل� ( � �� �  � �� � � �� � �ا �و ب� روا �ا �و �ا � � �� �آ � � �ور �ا � لو� �و � ۔� � ك�� �و �� ، �� �و �و �ا ، ن��)  ل� Crl.A. No. 609 of 2014 3 � � (��� ��  � ں�ز روا � ب�ود ۔� � سا � م� �و � �� �ا  م� �و ن� ں� ،� �و قد� � � �و �و�، � � � �� � �� �و ق� ورا �و �ا۔� � �ز ��ڑا �و �� ، �ا �و � ر� � � �� � � �ز ہو روا  ��ا � � م�ا �و۔� � �ز ہو � � � �� � م� �و � �" ٣۔  �� �اور�� �ا�ا  ��ا  ہو � � �� � � �ا � �و �� جار�ا � ٹر�ر � �� ت�� �  ك� ہ� �،� � � د�� �� �ا � � � � �و  ى� د� � � � � �ا�رد م� تر� �ِ٣٠٢  ،١٤٨ ،١٤٩ �� ن�� تاِ �� ا� � �� � ِ�� �� جار�ا �ا� �ا�رد �ار�ا �� ، �٤٢٩٥ � �� ل�را ۔�� جرد  � � � �� � ��� د� � �  فو�ِ ، زا� � �د ۔� �� �� � � � �ا �ر� ہ� � ��١٠۔٠٧۔٢٠٠٣ ِ�� ٨ � � ١٠ �  ند۔ ٤۔  � � � �و � قد� روا ن� م� �و ن� ں� ن�� �� � نارودِ � ہ� �ا٣   روا٤� � �ا �و �� )م� �� (�را� ہ� �  سا � �� � �� � ۔� �د  ��� � ز� ِ�ا� ف� � ن�� � � � � �ا� �اد ��ا � � ں�� � �اورر�  �� عو� � د�آ � ،� � � ��ا � �آ � �� روا �)١ (  �ا �و �ا)٢ ( ق�  �� �و)٣ ( م� �و ن� ں�)٤ (� �و قد�) ن�� �ا(روا )٥ ( �ا �و ب� )رو�م� ( �� ود � �� � � �� ں�ود � ا� راور� � �ا�ُا �� روا ىد � ت� ن  �ور �� �ا �� �ا �،راو � � �� ادا � �� نِ�ا� ��دا م� روا �� � تر� � �ا ٦ِ � ہ�  �د ِ�ز ۔�� � � �١٤٨� ن�� تا�� ِ � ٣ ل� �� روا � � �� ١٠ را�  �ور  � تر� � ��� �ادا ما� روا � �٦ِ� ہ�  �  � ،ت�د ِ�ز٣٢٤/ ١٤٩  ن�� تا��ِ ُا � ن١٠ � ل� � � روا ٢٥� تر� � �ادا م� ۔ا� � � �� ادا � � ��� �ور را�  ١ِ� ل�  � ۔ا� � � �را��د ِ�ز ��-F(V) ١٤٩ /٣٣٧  ن�� تا�� ِ�ا "د َا�ن"   �١٥ را�� ہا� � �ا �ا � �ور) ١٥ (۔�د � � �� ادا �� �ا � � ہا� ١٤ �  Crl.A. No. 609 of 2014 4 ت�د ِ�ز � �� عو�١٤٩/-A(ii) � ٣٣٧  � � نا ن�� تا�ِ"شرا"�ا �  ، �و سا   ہز� � ا� � � �� ادا � ب� � �د۔ ا� � � � � م� نا� � روا �ا ر� ح� ساِ � �ا � �ور �� �ا روا � ��،�و� روا �ا  ِ�ز � نا � ۔ا� � � �� ادا � ء�رو � ��   �د١٤٨ ن�� تا�� ِ٣ � روا � � � ل� ١٠ را�  �ور � � �د ِ�ز و ���٣٢٤   �ا � ن�� تا��ِ، � ��� و � � � ل� سد ٢٥را�  �ور�ا �، � �� ا� �  م� دا �را� � � ل� �ا �� ��� �ا ۔� �اِد � نا �� � �ا� � ن١٥٠٠ � �ا �ور   � ہا�١٥ �  عو�  ا� � � �ادا � ��ح� �ا ، � �� حو� � � �ا " شرا" � � �� ادا و �� � ا��ا روا �� �و �ا ، ن� ��و �� ۔� � ى� � د� � � �  ٥۔ � � � ں�� � �� ا� )١( �ا �و �ا)٢ ( �� �و ق�)٣ ( روا م� �و ن� ں� )٤ ( � �و قد� ��� � �ا ىراى٦٥٥/٢٠٠٩ � روا �ا ر� � � �اد ر�� �� ِ�ا�  � �ا � ن��٦٥٦/٢٠٠٩ �� ت� �ا� � � � ��ا � � �اد ف� � �� ا� �ا   ف� � ن�� �او� �ا�) Murder Reference (ى� ٢١٦/٢٠٠٩ ر�� �� ِ�ا�  �۔ ٦۔  �� ِ�ا�، �ر� � �و� � � �ر ود � ر��١٧۔٠٩۔٢٠١٣ �� ت� �ا�  � �ر� �او ىو� �ا � ن�� �ا � �ر� �� �� ر� � � � ت� �ا� � نا  � �� �ا�ا ِ�ا� � �ر � �و� � � ���ر را�� �ُا � � رد� �� ��ادا۔ نا   �د � ن��٣٨٢ ىرا�� ٔ�� ب۔� � ��� ن�� نا � ��د ہ ت�د ِ�ز �� ا� ٣٢٤،- ٣٣٧ F(V) روا -A(ii) ١٤٨/١٤٩/٣٣٧  ن�� تا�� ِ۔� � � � ٧۔ � � �� ت��و �ذ �ر� � �� � � �ا � �� ِ�ا�:۔ )"�ا ( �و �� ����، �� ن�� زا �، ا� � � �� �ا �و �ا �  �ا �� ہ� � ٹر�ر ��ا �ا) (PB/1  ء�ا � �ا سا �� �ر   � �� � ں� � � � �� �� �و �� �اد ��ا �اذ � � Crl.A. No. 609 of 2014 5  ن�� �� �)� �ان�(ا� راد �ذ �� ا� �� � ے�ود � � � ن�� � � ن� � �� � � � � ا� � � �� � � � د�  ۔� �� م� ىرا��د )ب ( د� � ے�ود �ا ت�� ں�ود �� �� ا� � � ��  �/ن�� روا �� � �� �� �ا � �ا� � ں�ود   �� � �� ف�ا � �ا� � ں�� را�اد ہو ں� روا � � ��  �ر۔� )ت (  � �ا� ل� تر� � � سا � �� ِ � � ں�ود � ں� � �رد  � �� � � �� ���ا � �ا� � � ىر نا� ��" � � م� ىر����  ہ�و" ��ر � �� � ن�� � �(PLD)  ل� ١٩٦٢ �  ��٥٠٢� �� � � � ہ� �� �  ���� � ، � تد� � �  � � � � �� �ا � �، �� دز� � ��و �� �� ى�  � �،��  �� � �� ۔�� �� � �  )ث (  � �� ں�ود ��و ِ�� � � ں� �ا � � �� ت�او ��ِ �� ں�ود روا ا� �� �آ ��ا �� روآ � � ے�ود �ا  � �  � دا�ا ود � �� �ا��  � � � � �� حو� دا�ا � � �ود � � � � � � � تد� � حو� �� �و �� � �� ے ۔ا� � )ج ( �ا �و �ا �� � � � �ا�)ہ� �ا (  ل� �و� � � ہا� �  �� ا� ب� � � � �ر �ز �� �)م� رو� ( � � �و �ا �  ں� ح� �ا ۔� � �د راد� � �� �ز � ل� ق� روا قد� ،ن�  �ر� ت�� � ل� ل�ا �و� � � � �ا� �� �آ �اا �ِ � ن  �ا ل�� � �د � راد� �� � �� حو� �۔ �ا ر� � � � ��   � �� �ر ب� � � � � � �� ں�ود � ن�� �ا � روا  � �� حو� ��ا ا� ۔� � �د � راد�َ � �ا� م� � �ا �و � Crl.A. No. 609 of 2014 6  ح� �ا روا � �� � ى���ا ت�� � � حو� � �ا روا حو  �د � �ا ا�ِ �ا ل� ف� � ن �� �ا�راد �ذ � �� حو� �  ہ� �ا قد� روا ن� ں� ، ق� � � �� �) �ا� �ؤ�ور ��( ت�د ِ�ز �ا� � �٣٢٤–A(ii), ١٤٨ ، ٣٣٧-F(v) ، ٣٣٧  ، ١٤٩ � تا��ِ ن� � ل� �ا � نا ح� �ا روا � �� � ى� �  � ہا� �ا روا �� �١٤ � ہا� � �ا و ١٥ �ا� � �� �ز �  ۔� �� � ى� � )ح ( �ا ہ� �ا � روا �ا ر� ح� ا �ا ��� ل�ا �و� رو�� � �   �ا روا�ا ہا� � � �١٥  �� � ى� � ت�ا�ا � �� حو� �  �ح� �ا ۔�د ِ�ز � �ا ر� –F(v) ١٤٩/٣٣٧  ن�� تا��ِ �ا  � ہا� ��ا �١٥ �� حو� �  � م� � �ا �� � �� � ى� ا� ِ�ز ت�د ٣٢٤ ،-A(ii) ٣٣٧-F(v)  ، ٣٣٧ �� تا��ِ ن  � ہا� � ��ا � �١٤اَ � � م� � �� حو� ��ر را��  ��۔�  ��ود ہ� �ا � روا �ا ر�  � ں�٥ ل� ٥ � ١١ روا ند ٤ ل� ١١ ہ�   روا١٦ ند ��� ُا ا� � �� ا� � �ا �� � �� � ا� �� �  � �و �� � �� ىد ىدازآ"د ان�" روا"شرا "� � �ا � �ا ر� � روا � � ىد "دان�" ا� � �  � ل�ا ہ� �ا�� �� �  �� ِ�ا��   �� �ر را�� ۔�" ٨۔ ہ�� � � �ر� � � � ت�او روا تد� � � � � ��د � ء�و � � سا ۔�   ٹر�ر ��ا �ا�ا ح� �ا ۔� �ز� �ارا � و �� �و �ا � ��و �ا � � �ور زورِ  ن�� � � ں� ح� � / ہ� �ا �� وز� رو� � � � �ر � � � �ز� �ارا ��ِ � �ارا �ا � � �� � �ور � �� روا �� �ا�د �� �  � �ا�د ِ�ا� ��  ��ا ِ� ��رد � � روا � ا�ا ِ�ز �� �� � ل� تر� سا ا� � ا� ىر� �ِ� و ��د   �د�ز� � ��� � �ا سا �� � � سا� نا � �� � � � �� �ا � ہو � �  Crl.A. No. 609 of 2014 7 � � ��� � �  ہ� �ا � �� � � / �� �� ہ �� � �� �ا � �ور � �� ن��  �� � � سا � / ��� � � � ر� ��،  ��� و � � �آ � ل�� ��ود  �  ۔� � � �� ہو �� �� �د �ر � �ز� �و �رذ ٩۔ ف�ا و ن�� � � �ا � � ل�ا � � � � ى� � � �� �  دا��  �ا�  ہ�� روا ے� � � س� � � تر� سا � � د�� �و روا �� � �� � �� � ن�� ۔� � �د را� � �� ل�ا � �� � ١٠۔ � �و �� � � �� ن�� � � �ا � �ا � �ا ������ � ��و �ا � �� �ا �  �ا�ا � � � � � � � ٹر�ر ��ا � � روا �اد �ا � � � ہرا� �� �ذ � � سا  � ء�ا �اد ��ا � � � � روا �ر � � ن�� � ل� �� � ر� ��� � سا � � �  ىذ م� ،ت� � رود � � �او �ر � و � � � ر�ا �ا� �ا � � �� �� � ں��  �دآ ر� � �او �ا ۔� ل� ��� و رود � � روا ى� � �� �و� � � � � �ع�د �ا � �� � � � م� � ��د � ��اور� �ا� �  نارود � �  فا�ا � ��  ���� �� �اد � سا �� �� �� ن�� ما�ا � سا روا  ��ا� � سا روان �  � �د � ك� ��ا � تد� �ا� �ا� � ن�ا� �ا ۔  � � ك� ِ�ا � �� �ا � �  � � � �د �ا� � ہو  ۔� � ىرا�� � � �ا روا � ن� �� �� � � � �� �� � ا � �ر �� �� � �� � � � �� ��ر � سا � راد �ر �� � � ے� � � سا � � ع�د �ا۔� �ا ل� ��� روا � ��� � �� ، �� � ر� �و� � ور � ن�� ُ ١١۔ � �و �� ل��  ��و ق١٢ روا �اد � �� ے� � � ر� ٤ �ر� � �� ے�   � �� �ر ت�ز ��ا � � � سا ےر� � كز�� � � � � � ں�  � تد� �� � � � ل� � �� � � � � �او � � �، ر� �او � �ا سا  � �� ��� �  � قو� �ر� � �� ��ا ت�ز � �ا١٢ � ےر� � سا � � روا � � �ر ر�   ء���ا �ا � ����ر ن� � ر� �ہ� ىر� � �  � �ا سا �� � ت� سا ۔� � � ت Crl.A. No. 609 of 2014 8  �آ� ے� د� �� روا ود � ر�ا � � � سا �و �� �� � ش� � سا � � �� �  � � � �� � ش� � � تد� � ں� � ���   سا � ��ا ن�ا� روا � � � �� �و� روا ��� ۔� �� �د� ن���  � � � �ذ �وا � �  ف� � � � � �د را� ہ� � نارود � ������ ��� � � �� ِ�ا� � نا  �ا سا � �د � ى� �د ہ�� �   � � � ت� �او �� � �و � ل� � ىرا��د � ن�ا� حو� �ا روا ��  د� � �� �ا� � �� �� تا�۔� در � �� ِ�ا� � �ا� راد �ذ � ١٢۔ � � � � ِ�ا� � �� ِ�ا�� ےد �ا� �  � � �� � �� � ى�   ن�� � �� و ز� �� � تر� � سا � � �ذ � �� ��� � ۔� ىد � ��   �� �� � ��و �� � � ِ�ا� � �ا"ر�� م� ہ�و �و� �از ") � �� ن��  ��ر � ت� �(PLD)  ل� ہ� ��١٩٩١� � �٥٥٨(  � ن� � � � �� � � �  ���و ل�ا ��� ں�ود � � � � �  �ا�  �� �� � �� �� �ا � �� �وا � �ا� � �  � � � ىراد �ذ� � � � � �� ى�� � �و �� ش�   � تد� را�� �� � � ��� �ز� �� �ذ � � ں� ۔ے� �ا �� � سا � ےد �� ن�ا� حو� و � � � �� � ں�� � �� � �ا � �� ل� ف�� �ا� � ��  �د را� ت� � � �� � � � در � تد� � ن�ا� � نا �و �� ى� � ن�� � � �  ۔ا ا�َ � ��� � �و سا � � �د ا� � ن�� ے�ود تد� � ن�ا� � ��� روا  � ن��ے�ود � � � � ل� �� �اد � �� �  ��و روا ت� ىر� � ت  �ا �د تر� ۔� � �� � تد� ى�� در ��� روا را��ِ � تد� � ن�ا� ا� ف� � ن�� ے�ود�� � � �� ل�ا � ر� � � ف�ا �  �� � ں��ا   ل�ا سا ۔�� ���ت نا� "ا��ر�� م� ن� " ) �� ��ر � ت� � � �� ن��  ل� ہ�١٩٧٠ � � �١٣( ،"ق� م� ر��" ) ل� ہ� �� ��ر � � �� ن��١٩٧٣ � �  �٤١٨( ،"ر�� م� � �")ا���ر � �� � ��� � � ِ�(SCMR) ،  ل�١٩٧٤� � �  ٢٨٩(،"ر�� م� �ا �ا") � � ِ�ا� ، ��ر � ت� � � � �� ن��٤٢٩( روا " � Crl.A. No. 609 of 2014 9 ر�� م� زا�" ) ل� ��ر �� � ��� � � �ا�١٩٨٤ � � �١٩٠(و ىر� �  � ��  �� � � با � ِ�ا� � � ل�ا �ا روا � � �۔� �ر � ١٣۔  � �� � �� ت�او � � �ز� �� �او �ا � � ں�َِ � �� � د� � �ا �  � �� روا �� �� � ٹر�ر �� �� �� �� سا � � �� �� �ا� �د � ت�  � �� � � � ى�� ٹر�ر ��ا �ا�ا � رد � �� �ا � ��۔� � �   ا� � � م� � ىراد ��د � �ر ہ�� � �ا سا �تد� ىر� � تر� �اِ � ��ا  � �� � �ز� �� � ںو� � ��ا �� � ا� ِ�ا� � � سا ۔ نا�" ن� ہ�و  ر�� م�" روا " ہ�و ن� م� ن� � " ) �ر�ر ء� �١٩٩٥ ىرا�� �، � � � ِ�ا�  �٦٦٥ ( � ر� �او �� ن� �ا� �ز� � ا� �� ت�او � �� ہ�� روا �   ت�او � ل�ا �ا � � �ا� ح�ا ۔ � � � � ��" م� ہ�د� ف� �� � ر��" ) �ر�ر ء� �١٩٩٥ � � ىرا�� �٦٨٨ ( �۔� �ا�د � ١٤۔  نا� �� � ا� ِ�ا�ِ" ر�� م� ر�اوذ")�ر ہ� �� � ��� � � ِ�ا� � ١٩٩١ � � �١٣٢٦ (�ا � �ار � � �� �� � جرد � �ذ �ا � � ر:۔ "ؤ� �ذ � �ا ہ� � � � � ںود� � � � �� ن�� � �و �  �� � � � � سا ں� �� گ� � �� ث� � �� � � �  � � � تد� ى�ود �� �د ا� � � ن�� � د� سا � � �� ���   � �� �� ن�� � �� � �� عو� ود روا � �� � ے� ود �  � ف�ا روا � �� � � �� �� ا�  ل� � تد���  �� ر� ِ  ت� � � �� � ��ا �ا روا ے� �� � و � � �� � ن�� ہو �  � � ں� �� � � �� � � �ا �ا ن�ا� روا � �  � �� ۔�� � �� �� ر�ا � �ا� � سا � � �� � ر� � � تد�" Crl.A. No. 609 of 2014 10 ١٥۔  �� � ا� �� ��ن�� �� ل� �� � �   �� � � �د� ��� � ��ر � �ا ن�ا� روا � � �� � � � � � � � رو�ا  ن�ا� �ا ا� � � �� م��  � � ہو �� ر�ا � تد� � ل،را�� �روا�� �د� ���  � �د�� � � تد� ى �۔� � �� ك�� ��ا � � � ف� � ں��ا � ف�ا ف� ١٦۔  � ا� �� � �� � �و � � ہو � جرد ٹر�ر ِ�و � � ٹر�ر ��ا �ا�ا  � �� �  �ا � � ں� � � �� ں�ود روا ا� �� � ��� ہد� �ر� ىر��  � ��و �� � � � � � �� � ں� � �� � ں�� � �� ں�ود �� � �� � سا ۔� � د�� � ��  � جرا�ا �و � � ٹر�ر ��ا �ا�ا � � � � ��ا �  � �ا � روا � � � � � ہو � جرد ٹر�رسا م� � ىرا��د � �  � � � �  � � � ر� �� �اورر� �روا۔� � ہ�� � ىرا�� ��ا نارود � � ١٧۔  � �� ِ�ا� �� �� روا ز� � ن�� ��� �� رد� � � �ز � ا�  �ر�  �و ط��� � � ف�ا روا � ں�ا � تد� � روا �ر � � � � ں��ا   �ا � � �� روا � در ف� � ن�� ے�ود �و� �� �� ر�ا � تد� � ہ� �ا  راو ر�� � �ا،ا ا� ِ۔� � � � � زا�ا � � � س ١٨۔ �� ہد��� و ت�او �  � تد �ا ى� � �� � ہ�� ر�� � ہو ت� و ك� � �� ��آ �  � � � � � تر� �ا روا  �� م� �ا �� ��رد � �� ى� ۔� � �� م�� روا ١٩۔  تد� � ت�� ىرا��� � �� م�ا ىد� � ،رد � �ذ � �� �� � ج:۔ )�ا( � روا � � � تد� ہو� � � ر�ا � ر� �، )ب ( � ر� ىو� � � تد� ہو� � � ر�ا روا د�ا �،روا )ج(  تد� ہو۔� � � � ر�ا و د�ا � ر� � � � Crl.A. No. 609 of 2014 11 ٢٠۔  � تد� ى�� ��ا � تد� � � � مز� �� �  � ف�ا �� �� �د را� ى�� �� �ر � � � ں����� تد�  م� � �� �د ا� � � � � �� � ��  � � �ز� �� � تد� ى�� ط� روا را�� � � تد� � � ى�ود � � �� � � �  � �� � م� � � ف�ا �د ا� ��  � � ى� � �� �� � ں��ا � ن�� و  � تد� ط� ��اروا � � �� � تد� �د � � � سا � تد� ى�� را�� �  �� و د�ا � تد� � � سا ف�ا ِ�ا� � �� روا � �ر۔� � � ر�ا ٢١۔ ىد� �ا �ا � ف�ا� روا  � � � ل�ا  � � � � تد� ط� روا ت�  �� � � ف�ا ِ�� �� �ا �� ىرو� � � �د را� �� � � ��� � � � � � �� �� �� � م� � ت�� ىرا�� رِ ��ا � ��ا � �� � م� ت�  ىر� �د � � � � را�� � � � �� �� �� � م� � سا روا � �� ى� روا  �� � � تد�و ى��،�ر ��� � �� � تد� ��او�  ف� � م� � � ل�ا  ن�ا�� ح� �ر�ِ �ارذ ے�ود � ��ا�  �� ��ا �اڈ �ڑارد ل� � ہ�� � ��  �ا �� ى� �ےد ىد� � ل�ا� � � ب�ا �ا� �� � �۔  �� �ر� ت�اور � � � ں��ا � ف�ا روا ن��� � � � سا �ا� ��  � �� � � ن�� ��ا � �� � س� �/ � ہ� �ا �� �� � و �� ��  � ہ� �ا قد� � � �� � ى� � ےد ہ�� � � � ن�� �ا � ا� ۔� �ر م�� �  ہو � ں� � � ��نارود ہو � � �� ل�و ٹر�ر � � ِ � و �  � � � ت� � � ر�  � � ��و � � � �� �� � ُا ا� ۔� �� � ف� �ا � � � ر�ر ��� �ا � س ٹ�: ت��وِ� ےر� �� �� � ى��ا�ر� ٢٤۔٠١۔٢٠١٧ � � � �� � �� � � �ذ � �  �ا�ود� ��:۔ “At the very outset, we have received a report of the Jailor, Incharge of the Central Prison, Faislabad, where it is stated that appellant Sadiq s/o Ali Muhammad has died Crl.A. No. 609 of 2014 12 during the pendency of this appeal as he developed various complicated diseases including the cardiac and paralyses while the main cause of death is meningitis, thus, he died on 11.10.2014. Accordingly, this appeal is abated to the extent of Sadiq accused. 2. All the three appellants namely (i) Asghar s/o Ahmad (ii) Mushtaq s/o Inayat and (iii) Mian Khan s/o Ghulam, for the reasons to be recorded later on, are acquitted of all the charges leveled against them and they be set free forth if not required in any other case. Appeal is allowed.” � � � ،د�آ م�ا٢٤،ىر�٢٠١٧� )ر� � � ��ا( �و �ا

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Mazhar Alam Khan Miankhel Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.630 of 2019 (Against the judgment dated 11.09.2018 passed by the High Court of Sindh, Bench at Sukkur in Crl. Jail Appeal No.D-175 of 2017) Gulzar …Appellant(s) Versus The State …Respondent(s) For the Appellant(s): Mr. M. Sharif Janjua, ASC For the State: Mr. Hussain Bux, Addl. Prosecutor General Sindh Date of hearing: 28.10.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- The appellant was surprised with a considerable cache of cannabis by a contingent of Khanpur Mahar Ghotki police on 27.3.2017; a Special Judge (CNA) Ghotki vide judgment dated 20.10.2017 returned him a guilty verdict; convicted under section 9(c) of the Control of Narcotic Substances Act, 1997, he was sentenced to 10 ½ years rigorous imprisonment with a direction to pay fine in the sum of Rs.50,000/- or to undergo simple imprisonment for a period of 8 months in lieu thereof, pre-trial period inclusive, upheld by a learned Division Bench of the High Court of Sindh vide impugned judgment dated 11.9.2018, assailed by the convict through a jail petition. 2. Heard. Record perused. 3. Significant quantity of contraband notwithstanding, nonetheless, we have noticed prosecution’s failure to establish safe transmission to the office of Chemical Examiner; the failure has its consequences inasmuch as narcotic character of the contraband, recovery whereof is denied by the appellant throughout, was not established as Rahib Din (PW-2), examined under Public Prosecutor’s Criminal Appeal No.630 of 2019 2 shadow, did not utter a single word to prove transmission of the entire cache, purportedly transmitted by him to the office of Chemical Examiner, in absence whereof, the appellant cannot be saddled with the culpability of possession without being conjectural, an option hardly available under the law. Criminal Appeal No.630 of 2019 is allowed; impugned judgment is set aside; the appellant is acquitted of the charge; he has already been ordered to be released, unless otherwise required to be detained, vide short order of even date. Judge Judge Judge Islamabad, the 28th October, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mr. Manzoor Ahmad Malik Mr. Justice Mr. Sardar Tariq Masood Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.635 of 2019 (Against the judgment dated 18.09.2017 passed by the Balochistan High Court, Quetta in Crl. (ATA) Appeal No.281 of 2007) Muhammad Yaseen …Appellant(s) Versus The State …Respondent(s) For the Appellant(s): Mr. Shabbir Rajput, ASC For the State: Mr. Baqir Shah, State counsel Date of hearing: 22.10.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Muhammad Yasin, appellant, was tried alongside Muhammad Hussain and Muhammad Hadi by the learned Special Judge Anti Terrorism Court-I, Quetta in the absence of absconding co-accused, namely, Qurban Ali alias Shutar, Zakir and Asif, for abduction and subsequent murder of Qari Haji Muhammad, 30/32, while he was on a pleasure trip with his companions Noor Muhammad (PW-4) and Fateh Khan on 30.3.2007; they were frisked and thrashed before confined in a cave wherefrom the deceased was subsequently separated from his companions, let off unscathed. Upon receipt of information, the members of the deceased family set out in his search; during the process, they were confronted and forced to retreat by the tribesmen that included the proclaimed offenders as well. Incident was reported by deceased’s maternal uncle Haji Agh Muhammad (PW-1) on 5.4.2007 at Police Station Quaid Abad, District Quetta. As the investigation commenced, the appellant was confronted to the witnesses in a test identification parade held under magisterial supervision on 16.4.2007; the co-accused were also picked up by the witnesses on different dates. Upon a disclosure, on 9.4.2007, the appellant led a police contingent to a spot on Koh-e-Murdar for the Criminal Appeal No.635 of 2019 2 recovery of corpse of Qari Haji Muhammad, concealed underneath a boulder, subsequent whereto, once again he got recovered a .30 caliber pistol, secured vide inventory dated 18.4.2007; he later accompanied the Investigating Officer to secure a casing from the spot, forensically found wedded with the weapon earlier recovered. The absconders were proceeded against while the appellant and co-accused, upon indictment, claimed trial that resulted into appellant’s conviction under section 7(a) of the Anti Terrorism Act, 1997 read sections 302(b), 148 of the Pakistan Penal Code, 1860 vide judgment dated 12.10.2007; he was sentenced to death and three years RI on the coordinate charge whereas Muhammad Hadi co-accused was convicted under sections 395, 506, 148 read with section 34 of the Code ibid; he was handed down sentences ranging from 3-years to 7-years including direction for payment of fine; Muhammad Hussain co-accused was acquitted from the charge. Having served out the sentences, Muhammad Hadi has since been released. State Reference clubbed with convict’s appeal, came up before a learned Division Bench of the High Court of Balochistan; with a cleavage of opinion, it was decided by a Referee Judge; majority judgment dated 18.09.2017 upheld the conviction, however, altered the penalty of death into imprisonment for life, vires whereof, are being assailed through leave of the Court. 2. Learned counsel for the appellant contends that there is inordinate and inexplicable delay in recourse to law which becomes all the more intriguing as it is prosecution’s own case that soon after deceased’s disappearance members of his clan set out in his search and that in the process they also encountered resistance and, thus, complainant’s silence for so long a period raises serious question regarding the credibility of the story put-forth during the trial; he has referred to the statement of Noor Muhammad (PW-4) to argue that test identification parade, relied upon by the courts below, hardly carried any evidential significance inasmuch as the witness admittedly claimed to have already identified the appellant in his previous encounters. Inconsequentiality of the recovery of weapon and disclosure leading to the discovery of the dead body from an open space has been highlighted as missing links in the chain of circumstances. It would be grievously unsafe to maintain conviction on the basis of inconsistent, incoherent and flawed pieces of evidence belatedly put together, concluded the learned counsel. The learned Law Officer has faithfully defended the impugned judgment. Criminal Appeal No.635 of 2019 3 2. Heard. Record perused. 3. Dr. Shamim Gul Meshwani (PW-10) examined the putrefied dead body; it was burnt from neck to head, missing limbs of the body included skin and muscles from head to face. Overall condition of the corpse seriously hampered the possibility of identification beyond doubt and, according to the witness, it was identified on the basis of clothes, a mobile phone handset and some papers found in the pocket. The condition of the corpse, particularly massive burns, belies the possibility of its presence underneath a boulder, a circumstance that in retrospect seriously shadows the hypothesis of disclosure by the appellant and, thus, jolts the very foundation of the case. Even if it is assumed that the decomposed corpse was that of the deceased, its presence at an openly accessible place drastically diminishes inculpation of the disclosure, heavily relied upon by the prosecution. Presence of a mobile phone handset and papers left with the corpse to provide space to the possibility of identification by the witnesses in itself is a circumstance far from being plausible. During appellant’s examination under section 342 of the Code of Criminal Procedure 1898, though the appellant was confronted with the pointing out of the place wherefrom the dead body of the deceased was recovered, nonetheless, his alleged disclosure leading to the discovery of dead body is conspicuously omitted. Statement of Noor Muhammad (PW-4) who identified the appellant is limited to the extent of handing over of Chaddar and Chappal purportedly last worn by the deceased. It is mindboggling as to why the appellant would undertake such an idiotic exercise when on the other hand he is taking pains to conceal the dead body with additional steps to set ablaze its face to blur the identity. Even if the witness is believed, his testimony does not take prosecution beyond the line of handing over of the items mentioned above. Forensic report does not advance prosecution case either inasmuch as, the seizure of casing after lapse of a period exceeding three weeks is a position that requires a pinch of salt. The story may not find a buyer. Argument that the appellant was roped in after deliberation and consultation spanning over a pretty long period of time exactly on the day the dead body was recovered cannot be dismissed out of hand. Acquittal of Muhammad Hussain though assigned a somewhat different role, nonetheless, inseparably within the integrity of the charge is yet another setback to the prosecution; the failure that went unchallenged is not without consequences. Cleavage in judicial opinion Criminal Appeal No.635 of 2019 4 demands extra caution. On our own independent analysis, prosecution evidence otherwise deficient and inconclusive is fraught with doubts, substantially failing to constitute chain of circumstances to conclusively establish appellant’s culpability beyond doubt; appellant is entitled to benefit thereof. Impugned judgment dated 18.09.2017 is set aside; the appellant is acquitted from the charge; he has already been ordered to be released, if not required to be detained in any other case, vide short order of even date. Appeal allowed. Judge Judge Judge Islamabad, the 22nd October, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE IFTIKHAR MUHAMMAD CHAUDHRY, C.J. MR. JUSTICE TARIQ PARVEZ MR. JUSTICE GHULAM RABBANI Criminal Appeal No.652 of 2009 In Jail Petition No.127 of 2009 (On appeal from the judgment dated 19.01.2009 passed by the Lahore High Court, in Crl.Appeal No.590/2003) Khizar Hayat …..Appellant (s) Versus The State …. Respondent For the appellant(s): Mr. Aftab Ahmed Khan, ASC For the State: Mr. M. Irfan Malik, Addl. P.G. Pb. Date of hearing 23.9.2010 ORDER Iftikhar Muhammad Chaudhry, CJ. – This appeal, by leave of the Court, has been filed against the judgment dated 19.1.2009 passed by the Lahore High Court, Lahore, whereby Crl. Appeal No.590/2009 filed by the appellant was dismissed. 2. Precisely stating relevant facts of the case as per FIR 556/2001 are that on 21.10.2001 Muhammad Arif (complainant) and Ghulam Ghous (deceased) were returning home after offering Maghrib prayer, when they reached at street No.15, suddenly Khizar Hayat (appellant) official of police department in uniform, armed with official Crl.A.652/09 2 gun arrived there and shouted that he had come to take revenge from Ghulam Ghous for insulting him in front of his relatives and friends on account of a dispute over money. Thereafter he made straight firing at Ghulam Ghous, which hit on different parts of his body, who succumbed to the injuries at the spot. On hue and cry of the complainant, the appellant attempted to fire at him but he succeeded to run away, whereas the appellant managed to escape on his motorcycle. After completion of investigation, charge against the appellant was framed, to which he pleaded not guilty and claimed trial. The prosecution, in order to prove its case, produced as many as 14 witnesses. The appellant in his statement u/s 342 Cr.P.C. denied the prosecution story, however, he neither produced any defence evidence nor opted to record his statement on oath u/s 340(2) Cr.P.C. After considering the entire evidence on record the learned trial Court convicted the appellant u/s 302(a) PPC and sentenced him to death as Qisas. He was also directed to pay compensation of Rs.1,00,000/- to the legal heirs of the deceased. The appellant challenged his conviction/sentence before the High Court through Criminal Appeal No.590/2003 and the trial Court also forwarded Murder Reference No.467/2003 for confirmation of death sentence. The learned High Court dismissed the appeal filed by the appellant and answered the murder reference in affirmative vide impugned judgment, hence he moved jail petition before this Court, in which leave to appeal was granted by this Court. Leave granting order reads as under:- “Leave to appeal is granted for reappraisal of evidence to see whether there were material contradictions in the ocular evidence and Crl.A.652/09 3 the medical evidence, adduced by the prosecution, and whether the petitioner could have been convicted under section 302(a)PPC instead of 302(b) PPC.” 3. Learned counsel for the petitioner vehemently argued that the FIR was lodged with the delay of about two hours and the PW Ashfaq Saeed had failed to mention the time of occurrence in his statement. He further contended that no reliance could be placed on the testimony of eye witnesses who were chance witnesses; the complainant Muhammad Arif (PW-2) was the interested witness being brother of the deceased, therefore, his statement cannot be relied upon. The medical evidence was in conflict with the ocular account and the recovery of empties from the spot and the weapon of offence from the petitioner was excluded from the consideration by the High Court, therefore, the petitioner could not be punished under section 302(a) PPC. 4. Learned Additional Prosecutor General supported the impugned judgment. 5. We have examined/scrutinized the prosecution case based upon the ocular testimony furnished by Muhammad Arif, complainant (PW-2) and Ashfaq Saeed (PW-1). Former is brother of the deceased Ghulam Ghous. He got recorded his statement Ex.P.A, which was later on converted into FIR, recorded by Basharat Hussain, SI. According to his statement, on 21st October, 2001 he and his deceased brother were going to their house after offering Maghrib prayer at Jamiah Masjid. When they reached at street No.15, suddenly Khizar Crl.A.652/09 4 Hayat (appellant), who is a police employee intercepted them and in a loud voice asked his brother Ghulam Ghous that “I will take revenge from you because you insulted me before my friends and relatives, on account of dispute regarding transaction of payment”. He suddenly with his official gun fired at Ghulam Ghous, deceased straightly, which hit him on his head, neck and chest, who after receiving the said firearm injuries, fell down. He (complainant) made hue and cry, whereupon accused Khizar Hayat also attempted to fire at him but his life was saved as he ran away from the place. Ghulam Ghous died at the spot and the convict managed to escape good alongwith official gun on motorcycle No. 48, Honda CG 125. It is important to note that in the FIR, the complainant has also named Ashfaq Saeed (PW-1) and one Nazar Hussain (not produced), who witnessed the occurrence. He was subjected to lengthy cross examination but without extracting any beneficial statement to help the convict, however, the plea being an interested witness was raised before the trial Court, the High Court and this Court as well. We fail to understand that how a plea, which is not acceptable on the face of it, is being put forward repeatedly. The statement of the witness on account of being interested witness can only be discarded if it is proved that an interested witness has ulterior motive on account of enmity or any other consideration. Essentially this proposition has been considered in number of cases and this Court had declined to give weight to it, in absence of any reason leading to show that for some ulterior motive or on account of enmity the statement has been falsely given. There is no rule of law that Crl.A.652/09 5 statement of interested witness cannot be taken into consideration without corroboration and even uncorroborated version can be relied upon if supported by the surrounding circumstances. In this regard reference can be made to the cases of Khadim Hussain v. State (2010 SCMR 1090), Ashfaq Ahmed v. State (2007 SCMR 641), Shoukat Ali v. the State (PLD 2007 SC 93) and Muhammad Mansha v. The State (2001 SCMR 199). This Court in the case of Iqbal alias Bala v. The State (1994 SCMR 1) has held that merely the friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused. Reference can also be made to the case of Muhammad Ehsan v. State (2006 SCMR 1857) wherein while considering the plea raised by accused that evidence of widow of deceased could not be relied upon because she was interested witness being related to deceased, this Court held that mere fact that she was widow of deceased would not by itself sufficient to held that she was interested witness as she had no enmity with the accused and even if deceased had enmity with accused it would not have any serious effect upon the credibility and reliability of the testimony of widow. Learned High Court as well as the trial Court deeply considered this aspect of the case and declined to accept the plea. 6. The plea taken by the defence before the trial Court that deceased was a criminal type of person and he had enmity with so many persons, is unknown because the prosecution has produced trustworthy and coherent evidence through PW-Ashfaq Saeed and Crl.A.652/09 6 PW-Muhammad Arif to support the contents of the FIR, Ex. PA/1 and to prove the cause of death, reliance was placed on the statements of Dr. Naseer Ahmad Chaudhry (PW-7), Dr. Muhammad Iftikhar Alam (PW-8) and Dr. Zainab Perveen (PW-14). Through the statement of Muhammad Arif (PW-2) the prosecution has also established the motive for causing the murder by the appellant. The happening of incident has also been established by producing site plan, recovery of blood stained earth from the place of occurrence and the empties being used in the crime weapons, however, the same were of no use because the recovery of the crime weapon has been disbelieved by the High Court. The prosecution has also established that he (appellant) is the same person, who is in employment of the police department as at the time of effecting recovery from his possession, police uniform namely, Qameez (Ex.P-8), Pant (Ex.P-9), Cap (Ex.P-10), Belt (Ex.P-11) and Boot (Ex.P-12) were recovered vide recovery memo Ex. PE, therefore, placing all the pieces of evidence in juxta position and evaluating the same, we are of the considered opinion that the prosecution has established the guilt against the appellant. In addition to it, it is a case of single accused, who has fired upon the deceased-Ghulam Ghous, therefore, substitution of a culprit is not possible besides it is a rare phenomenon where a witness whose close relative has been murdered would substitute the accused with an innocent person thereby allowing the actual accused to go scot-free. As far as second ocular witness of the incident Ashfaq Saeed (PW-1) is concerned, his evidence Crl.A.652/09 7 fully corroborates to the statement of Muhammad Arif (PW-2), as it is evident from his examination-in-chief and cross examination. 7. It is contended on behalf of the convict that both the witnesses are chance witnesses, therefore, their testimony is not worthy of acceptance. It may be noticed that FIR, Ex.PA/1 was lodged with reasonable promptitude wherein names of Ashfaq Saeed (PW-1) along with Nazar Hussain (not produced) were also mentioned. The statement of Ashfaq Saeed (PW-1) was recorded on the same day after happening of incident as it is evident from his cross examination, according to which his statement was recorded by the police at the place of occurrence in between Maghrib and Ishaa’ prayers. This witness has further strengthened the fact of having seen the incident by deposing that he was present in street No.12 at the time of occurrence. It is to be noted that street No.15, where the incident took place is situated within the same vicinity. In this behalf reference to the site plan Ex. P.J may be made, which has established that street No.15 is situated in front of street No.12 and the witness i.e. PW-1, who was present at a distance of 30/40 feet from the place of occurrence was capable to witness the incident. It is important to note that Ashfaq Saeed (PW-1) is an independent witness, who has no relation or enmity with the convict; inasmuch as no suggestion was given to the witness except introducing the plea as has been raised before the Court that he was a chance witness. Therefore, we have no reason to discard the evidence furnished by Ashfaq Saeed. Crl.A.652/09 8 8. Learned counsel for the appellant emphasized that there is contradiction in the ocular testimonies furnished by Ashfaq Saeed (PW-1) and Muhammad Arif (PW-2) to substantiate the plea. We have examined the statements of Dr. Naseer Ahmad Chaudhry (PW-7), Dr. Muhammad Iftikhar Alam (PW-8) and Dr. Zainab Perveen (PW-14) viz-a viz that of PW-1 and PW-2 as well as the contents of FIR, Ex.PA/1. It is to be noted that Dr. Naseer Ahmad Chaudhry conducted autopsy and furnished postmortem report Ex.PG and pictorial diagrams Ex.PG/1 and Ex.PG/2. As far as PWs Dr. Muhammad Iftikhar Alam and Dr. Zainab Perveen are concerned, they are the members of medical board, which finally confirmed the postmortem report, Ex.PG. According to the opinion of Dr. Naseer Ahmad Chaudhry, standing medical board was on unanimous opinion that injuries 1 to 8 were ante-mortem, caused by fire arm, except injuries No.5 and 6 which were caused by blunt means. Injuries No.1,2,3 and 4 individually and in combination with rest of injuries were sufficient to cause death in an ordinary course of nature, underline cause of death being damage to the vital organs that is brain. 9. As has been pointed out hereinabove, it is a case of single accused, who fired upon the deceased. As far as identification of the convict is concerned, Dr. Naseer Ahmad Chaudhry in his statement before the trial Court has offered sufficient explanation, on the basis of which it can be held that as the head is not a stagnant part of the body and the deceased on whom firing had been made, might had been revolving his head to save the same, therefore, causing the injuries on Crl.A.652/09 9 different parts of the head cannot be considered to hold that there is a contradiction in the ocular and medical evidence furnished by the doctors named hereinbefore. 10. There is another important aspect of the case, which is required to be seen that it is not a case of defence that injuries were not caused with firearm and some other crime weapon was used. Both the prosecution and defence are one on the point that firearm has been used, therefore, looking the case from this angle as well, one can conveniently hold that there is no contradiction in the ocular testimony of Ashfaq Saeed (PW-1) and Muhammad Arif (PW-2) and the medical evidence furnished by Dr. Naseer Ahmad Chaudhry (PW-7), Dr. Muhammad Iftikhar Alam (PW-8) and Dr. Zainab Perveen (PW-14). 11. Now it would be considered whether the learned trial Court has rightly awarded him sentence under section 302(a) PPC instead of 302(b) PPC, according to which “whoever commits qatl-i-amd shall, subject to the provisions of this Chapter be punished with death as qisas”. Whereas u/s 304 PPC proof of qatl-i-amd liable to qisas has to be proved in the form that if the accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence, which is not the case of the appellant, therefore, next consideration for awarding sentence of qisas shall depend upon the evidence as provided under section 304(1)(b) PPC, which reads as under:- “304. (1) Proof of qatl-i-amd liable to qisas shall be in any of the following forms, namely:- (a) …….. Crl.A.652/09 10 (b) by the evidence as provided in Article 17 of the Qanun-e-Shahadat, 1984(P.O.10 of 1984).” 12. Admittedly the convict has not made confession before the trial Court. As far as standard of evidence provided in Article 17 of Qanun- e-Shahadat, 1984 (P.O. 10 of 1984) is concerned, it depends upon the standard laid down under Islamic Law, which is that the witness must stand the test of Tazkiya-tul-Shahood. This very question came for consideration before a larger bench of this Court in the case of Abdus Salam Vs. The State (2000 SCMR 338). Relevant para there from is reproduced herein below:- “In this case, the trial Court recorded conviction of the appellant under section 302(a), PPC i.e. Qatl-i-amd, punished with death as Qisas and such conviction was confirmed by the High Court. We are, however, of the view that this was a case for conviction under section 302(b) as proof in this case against the appellant was not available in either of the forms specified in section 304, P.P.C. under section 304(1), P.P.C., proof of Qatl-i-amd is required to be in one of the following forms, namely:- (a) The accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or (b) by the evidence as provided in Article 17 of the Qanun-e- Shahadat, 1984. Reply to the charge and his statement under section 342, Cr.P.C. by the appellant did not amount to confession as required under section 304(1)(a). Evidence of the three witnesses also did not satisfy the test provided in Article 17 of Qanun-e-Shahadat, 1984, as the said witnesses had not been subject of this Court in Manzoor v. State (1992 SCMR 2307) where it was held as follows:-- “As regards it being a case of Qatl-i-amd liable to death by Qisas the requirement of the Islamic Law is that the witnesses must stand the test of Tazkiya-tul-Shahood ( ) and the importance of it has been Crl.A.652/09 11 emphasized in Sanaullah v.The State PLD 1991 Federal Shariat Court 186, in the following words:-- “Tazkiya-tul-Shahood ( )is obligatory in cases punishable with Hadd and Qisas, even if the competency of a witness is not challenged by the Mashood Alaih( )”. In the case of Ghulam Ali v. The State PLD 1986 SC 741 it was held that where proper Tazkiya-tul-Shahood ( )was not done of an eye-witness, the conviction under Islamic Law could not be sustained. In the present case, this requirement having not been satisfied, the conviction under injunctions of Islam could not be awarded.” We accordingly of the view that, in this matter where the prosecution had established its case against the appellant for the Qatl-i-amd of his mother, conviction was required to be recorded under section 302(b), P.P.C. and not under section 302(a), P.P.C.” In the instant case, admittedly no exercise was carried out by the learned trial Court or by the High Court to ascertain whether PWs Ashfaq Saeed and Muhammad Arif fulfill the requirement of Tazkiya- tul-Shahood, for which an inquiry has to be conducted and this aspect of the case has been highlighted in the case of Ghulam Ali v. The State (PLD 1986 SC 741), therefore if the prosecution had succeeded in establishing the offence of qatl-i-amd of Ghulam Ghous, there was no necessity to award the punishment of death to the convict as qisas u/s 302(a) PPC because the Court is empowered to award punishment of death or life imprisonment as Ta’azir u/s 302(b) PPC. 13. In view of the above discussion, we are of the opinion that the appellant was entitled to punishment u/s 302(b) PPC instead of 302(a) PPC, therefore, the sentence of death is maintained u/s 302(b) PPC. He Crl.A.652/09 12 shall also be liable to pay Rs.1,00,000/- as compensation to the legal heirs of the deceased as has been observed by the trial Court vide judgment dated 2.4.2003, maintained by the High Court on 19.1.2009. 14. Consequently, the appeal is dismissed with the observations made hereinabove. Chief Justice Judge Judge Announced on 5.1.2011 at Islamabad Nisar/* Approved For Reporting

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: MR. JUSTICE MANZOOR AHMAD MALIK MR. JUSTICE SYED MANSOOR ALI SHAH MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL APPEAL NO.66-L OF 2020 IN CRIMINAL PETITION NO. 1189-L OF 2014 (Against the judgment of the Lahore High Court, Lahore dated 23.10.2014 passed in Capital Sentence Reference No. 34-T/2007 and Criminal Appeal No.534/2007) Muhammad Shabbir etc. … Appellants Versus The State … Respondent For the Appellants : Mr. Sher Afghan Asdi, ASC For the Complainant Mr. Imdad Hussain Hamdani Syed, ASC For the (State) : Mr. M. Amjad Rafiq Addl. PG Date of Hearing : 23.06.2020 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J:- Criminal appeal, by leave of the Court, is directed against the impugned judgment of learned Division Bench of Lahore High Court, Lahore dated 23.10.2014 passed in Capital Sentence Reference No. 34- T/2007 and Criminal Appeal No. 534/2007 whereby the conviction of the appellants under section 302(b) PPC awarded by the Special Judge, Anti-Terrorism Court, Sargodha vide judgment dated 29.03.2007 on three counts each was maintained but their sentences were converted from death each to imprisonment for life each. The compensation awarded by the learned trial court and Criminal Appeal No. 66-L of 2020. -: 2 :- sentence in default thereof was maintained. The benefit of section 382-B Cr.P.C. was also given to the appellants. Convictions and sentences under section 324, 337A(i), 337 A(ii), 337 F(i), 337 F(iii), 337 F(vi), 148, 149 PPC were also maintained. 2. As per prosecution story contained in the FIR No. 72/2005 dated 16.02.2005, offences under section 302, 324, 148, 149, 395 PPC read with section 7 Anti-Terrorism Act, 1997, registered with police station Jauharabad District Khushab (Exh.PBB) lodged at the instance of one Mazhar Anwaar (PW-20) is that he along with Gul Hayat son of Mian Muhammad, Gul Hayat son of Muhammad Feroze were going to Lorri Adda Hadali on feet and when they reached in the street near the house of Muhammad Mahboob, from opposite side Jeep No. B-4303/Swat came in which Naeemullah (his brother), Said Rasool (PW-21), Hafeezullah were coming and Naeemullah was sitting on front seat, Said Rasool on back seat whereas Hafeezullah was driving the jeep. It is further mentioned in the crime report that when the jeep reached near the shop of Muhammad Iqbal Lohar, due to speed breaker the jeep became slow and from the shop Muhammad Shabbir armed with G- III, Muhammad Ameer armed with Kalashnikov, Khuda Bakhsh (P.O.) armed with Kalashnikov, Imran son of Atta Muhammad armed with Kalashnikov, Imran Abbas son of Ghulam Rasool armed with Kalashnikov came in front of the jeep and appellant Muhammad Shabbir by raising lalkara made a fire shot of rifle G-III on Naeemullah which hit on his head. The crime report further reveals that appellant Muhammad Imran fired a shot with his Kalashnikov which landed on the chest of Naeemullah and thereafter Muhammad Criminal Appeal No. 66-L of 2020. -: 3 :- Ammer made fire with Kalashnikov which hit on front of the mouth of Hafeezullah who was driving the Jeep, thereafter Imran Abbas fired a shot with .12 bore repeater that hit on the left flank of Said Rasool; appellant Muhammad Munir made fire with Kalashnikov which hit on the mouth of Naeem Ullah; thereafter Khuda Bakhsh (P.O.) made fire with Kalashnikov which hit on the chest of Hafeezullah and then all the accused persons made indiscriminate firing which hit on their heads, chests and different parts of the bodies. It is further mentioned that the appellant Shabbir while escaping also took licensed rifle/Kalashnikov with magazine bag, ammunition and license which were lying in Jeep. At some distance, they found Hameedullah (deceased) and Fazal-e-Haq (PW), on this Khuda Bakhsh (P.O.), appellant Muhammad Shabbir and Muhammad Ameer made repeated fires on Hameedullah which hit on his chest, back, left hand and different parts of his body. The matter was reported to the police and as such instant crime report was registered with the local police. 3. After registration of the aforesaid case, it was found that the appellants Muhammad Shabbir etc. after committing the occurrence forcibly snatched a car No. LRZ-4949 Model 2004 2-OD on gun point within the view of Allah Bakhsh (PW-19) and fled away. The appellants were taken into custody and after the conclusion of the investigation; they were challaned while placing their names in column No.3 of the report under Section 173 Cr.P.C. On receipt of challan, the learned Additional Sessions Judge, Khushab formally charge sheeted the appellants vide order dated 20.03.2007 to which they pleaded not guilty and claimed trial. The Criminal Appeal No. 66-L of 2020. -: 4 :- complainant moved application under section 12 of the Anti- Terrorism Act, 1997 which was dismissed vide order dated 14.11.2005 and complainant filed writ petition No.18694/2005 before learned High Court and vide order dated 26.02.2007 the learned High Court transferred this case from learned Additional Sessions Judge Khushab to the court of Special Judge, Anti Terrorism, Sargodha and a fresh charge was framed against all the accused on 20.03.2007 to which they pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as 22 witnesses. The appellants were examined under Section 342, Cr.P.C, however, they opted not to appear in their defence as their own witness in terms of Section 340(2), Cr.P.C. to disproof the allegations levelled against them and they did not produce any defence evidence. 4. The learned trial court after conclusion of trial found that the prosecution succeeded to prove allegations against the petitioner, hence convicted the appellants under section 302/149 PPC and sentenced to death each on three counts for committing the murder of Naeemullah, Hafeezullah and Hameedullah along with compensation of Rs.1,00,000/- each under section 544-A of Cr.P.C. payable to each legal heirs of deceased and in default thereof further undergo six months each on three counts. They were also convicted under sections 324/149 PPC and sentenced to ten years R.I. each for attempting to commit the Qatl-i-Amd of Said Rasool along with fine of Rs.50,000/- each and in default thereof further undergo three months S.I. each. They were also convicted under section 337 A(i)/149 PPC and to pay Rs.25,000/- each as Daman Criminal Appeal No. 66-L of 2020. -: 5 :- for causing Shajjah-e-Khafifah to Said Rasool and in default thereof further undergo two years R.I. They were also convicted under section 337 A(ii)/149 PPC and to pay Rs.15,000/- each for causing Shajjah-e-Mudiah to Said Rasool as five percent of Arsh and also undergo five years R.I. as Tazir. They were also convicted under section 337 F(i)/149 PPC and to pay Rs.25,000/- each as Daman for causing Ghayr-Jaifah Damiyah to Said Rasool and also undergo one year R.I. as Tazir. They were also convicted under section under section 337 F(iii)/149 PPC and to pay Rs.25,000/- each as Daman for causing Ghayr-Jaifah Mutalahimah to Said Rasool and also undergo three years R.I. as Tazir. They were also convicted under section 337 F(vi)/149 PPC and to pay Rs.25,000/- as Daman for causing Ghayr-Jaifah Munaqqillah to Said Rasool and also undergo seven years R.I. each as Tazir. They were also convicted under sections 148/149 PPC and sentenced to undergo three years R.I. each. The appellants were also convicted under section 7(a) of the Anti-Terrorism Act 1997 and sentenced to death each along with fine of Rs.50,000/- each and in default thereof undergo three years S.I. They were also convicted under section 7(c) of the Anti-Terrorism Act, 1997 read with section 149 PPC and sentenced to imprisonment for life each along with fine Rs.50,000/- each and in default thereof further undergo three years S.I. 5. The appellants being aggrieved by the judgment of the learned trial court dated 29.03.2007 filed criminal appeal No.534/2007 before the Lahore High Court, Lahore whereas the learned trial court forwarded Capital Sentence Reference No.34- T/2007 for confirmation of the sentence of death inflicted upon the Criminal Appeal No. 66-L of 2020. -: 6 :- appellants. The learned Division Bench of High Court vide judgment dated 23.10.2014 set aside the convictions and sentences recorded against the appellants under section 7(a) & 7(c) of Anti-Terrorism Act, 1997, however, maintained their convictions under section 302(b) PPC awarded by the learned trial court on three counts each but converted the sentence from death each to imprisonment for life each. The compensation awarded by the learned trial court and sentence in default thereof was maintained. The benefit of section 382-B Cr.P.C. was also given to the appellants. Convictions and sentences under section 324, 337A(i), 337 A(ii), 337 F(i), 337 F(iii), 337 F(vi), 148, 149 PPC were also maintained. 6. Leave to appeal was granted by this Court by means of order dated 20.02.2020 for reappraisal of entire evidence available on the record for safe administration of criminal justice. 7. At the very outset, it has been argued by learned counsel appearing on behalf of appellants that both the courts below have not taken the evidence available on the record in its true prospective and same has not been evaluated according to the established principles of law enunciated by superior courts from time to time. Contends that the prosecution has failed to prove its case against the present appellants as there are many major discrepancies in the statements of the PWs and there is conflict between ocular account and medical evidence. It has been further argued that firing is attributed to all the accused including Khuda Bakhsh (P.O.), hence, learned High Court has failed to appreciate the facts and law of the case in its true perspective and has drawn wrong conclusion due to which gross miscarriage of justice has Criminal Appeal No. 66-L of 2020. -: 7 :- taken place in this case. Further contends that there are circumstances which created reasonable doubt in the prudent mind about the guilt of the appellants, then they would be entitled for the same not as a matter of grace and concession but as a matter of right. Further contends that besides causing specific injuries on the persons of deceased, they all resorted to indiscriminate firing and firearm injuries on the person of injured Said Rasool was specifically attribute to co-accused Muhammad Hussain who was acquitted by the learned High Court and when the injured eyewitness has not been believed qua his own injuries, his evidence cannot be used to convict the appellants when recoveries from the appellants were not relied by the learned High Court. Learned counsel further contends that the complainant in his statement as PW-20 has stated that no untoward incident had taken place after the acquittal of Naeem till the occurrence , hence, the motive setup by the prosecution remained far from being proved, therefore, it create a doubt in the genuineness of the prosecution version resulting into acquittal of the appellants. 8. On the other hand, learned Law Officer assisted by learned counsel appearing on behalf of complainant has argued that the prosecution has been succeeded to establish the case against the appellants. Further contends that three persons were done to death in brutal manner whereas one person was seriously injured which shows the highhandedness of the appellants which is spelled out from the facts and circumstance of this case. It is contended that the ocular account was furnished by the quite independent and trustworthy witnesses duly supported by the medical evidence. Lastly it was argued that the appellants by resorting to firing had Criminal Appeal No. 66-L of 2020. -: 8 :- taken the life of three innocent persons and the prosecution adduced its case through straight forward, reliable and confidence inspiring evidence, therefore, the learned High Court has rightly convicted and sentenced the appellants under the relevant provisions of law. 9. We have heard the learned counsel for the parties and gone through the record. We have noticed that it is a case of highhandedness in which three persons were done to death in brutal manner and one person was seriously injured. It is noticed that as per post mortem reports, the deceased Naeemullah received 28 injuries, deceased Hafeezullah received as many as 34 injuries and deceased Hameedulah received 12 injures on different parts of their bodies. The injured PW Said Rasool also received as many as nineteen injures on different parts of his body. The occurrence initiated when both the deceased Naeem Ullah ( sitting on front seat), Hafeezullah (driver) and injured Said Rasool (PW-21) (sitting on back seat) were passing on Jeep No.B-4303/Swat near the shop of Muhammad Iqbal Lohar, the appellants came from the shop and appellant Muhammad Shabbir made a fire shot of rifle G-III on Naeemullah which hit on his head; appellant Muhammad Imran made a fire shot with his Kalashnikov which hit on the chest of Naeemullah whereas appellant Muhammad Munir made fire with Kalashnikov which hit on the mouth of Naeem Ullah and all the accused persons made indiscriminate firing which hit on their heads, chests and different parts of the bodies. The injured Said Rasool (PW-21) also sustained serious injuries. It is further noticed that after committing the occurrence, when the appellants etc. were decamping, at some Criminal Appeal No. 66-L of 2020. -: 9 :- distance they found Hameedullah and one Fazal-e-Haq, the appellants etc. made repeated fires on Hameedullah which hit on his chest, back, left hand and different parts of his body. Subsequently, it was found that after committing the occurrence, the appellants etc. forcibly snatched a car No. LRZ-4949 (P-35) within the view of Allah Bakhash (PW-19) on gun point and on 17.02.2005 the appellants were arrested near Jhelum River while travelling on the same car. The ocular account has been furnished by Mazhar Anwaar (PW-20) and Said Rasool injured (PW-21) and prosecution also rely on the statement of Allah Bakhash (PW-19). So far as the contention of the learned counsel for the appellants that the firearm injuries of Said Rasool (PW-21) were specifically attributed to co- accused Muhammad Hussain who was acquitted by learned High Court, is concerned, careful perusal of the entire evidence produced by the prosecution reveals that since the occurrence had taken place in the broad daylight in the street near the shop of Muhammad Iqbal Lohar in the same village, therefore, the presence of Mazhar Anwaar (PW-20) and Said Rasool injured (PW-21) at the scene of occurrence was quite natural and beyond any doubt and the statements of the prosecution witnesses are consistent, confidence inspiring and in consonance with the probability and circumstances of the case and being worthy of credence, which could not be brushed aside. Injured Said Rasool (PW-21) received firearms injures in the occurrence while sitting in the jeep and saw the occurrence, hence, his presence at the relevant time cannot be considered as unnatural and improbable and he has no enmity or malice against the appellants and his testimony is duly supported by medical evidence having been found confidence inspiring, truthful Criminal Appeal No. 66-L of 2020. -: 10 :- and unimpeachable. Furthermore it is noticed that co-accused Muhammad Hussain has been acquitted by learned High Court on the basis that his name has been replaced with Imran Abbas son of Ghulam Rasool, caste Kharal resident of Chak No. 47 North, District Sargodha by complainant Mazhar Anwaar (PW-20) in his second supplementary statement dated 18.02.2005 and no identification parade was held for identification of the co-accused Muhammad Hussain and prosecution is not certain about the identity of Muhammad Hussain, benefit of which was given to him. It is further noticed that the report of Forensic Science Agency (Ex.PZ) shows that all empties except some were fired from the weapons recovered from the appellants. So far as the contention of the learned counsel that there are major discrepancies in the statement of PWs, it is established law that if the discrepancies are shattering the prosecution story on salient feature then it has substance to intervene on the subject otherwise it has no impact on the veracity of the prosecution story. Reliance in this regard is placed on case titled "MUHAMMAD IQBAL versus THE STATE” (PLD 2001 Supreme Court 222).We have observed during the course of proceedings that the father of appellant Muhammad Shabbir was murdered wherein Naeemullah deceased was one of the accused. There is no denial to this fact that he was finally acquitted of the charge, therefore, the revenge in the mind of appellant continued cultivation and ultimately instant occurrence has taken place. In such like cases where the murders are committed as revenge depends upon human physiology. The human being a creature of the environment; therefore, he is governed by the background of the society from where he hails. Although this aspect do not cover the doctrine of Criminal Appeal No. 66-L of 2020. -: 11 :- provocation still the area and other antecedent of persons are relevant factor while taking into account which might be suggesting for a moment where revenge can be regarded as mitigating circumstances, however, the question of sentence in each criminal case definitely has direct nexus with the particular circumstances of the said case. This principle was considered and relied upon by salutary judgment titled "AJUN SHAH versus THE STATE" (PLD 1967 Supreme Court 185). The learned High Court while handing down the judgment impugned before us has already taken care of all established principles of law and converted the sentences of each appellant from death to imprisonment for life which seems to us appropriate and in accordance with law. The contentions raised by learned counsel are without any force which are repelled. As a consequence, this appeal is dismissed. Judge Judge Judge Lahore 23.06.2020 Approved for reporting. Athar

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeals No.67-L & 68-L of 2017 (On appeal from the judgment dated 28.11.2013 passed by the Lahore High Court, Lahore in Criminal Appeals No.148 & 202 of 2010 and CSR No.3-T of 2010). Safdar Baloch alias Ali (In Crl.A.67-L/2017) Aziz Khan (In Crl.A.68-L/2017) …Appellant(s) VERSUS The State, etc. (In both cases) …Respondent(s) For the Appellant(s) : Mr. Naseer-ud-Din Khan Nayyar, ASC (In Crl.A.67-L/2017) Miss Najma Parveen, ASC (In Crl.A.68-L/2017) For the State : Mr. Mazhar Sher Awan, Additional Prosecutor General Date of Hearing : 09.05.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J.- Criminal Appeal No.67-L/2017 by Safdar Baloch alias Ali and Criminal Appeal No.68-L/2017 by Aziz Khan, through leave of the Court, arisen out of incident dated 15.12.2005 are bound by a common thread; these are being decided through this single judgment. 2. Prosecution case is structured upon statement of Iftikhar Khan, PW-1; on the eventful day at about 7.30 a.m. he was about to leave home to drop his son namely Shahrayar Khan at the school when the appellants along with Nazir Ahmed, co-accused, differently armed, confronted him. Safdar Baloch alias Ali and Nazir Ahmad shot him with .12 caliber guns on his left leg; as he felled on the ground Aziz Khan, appellant took Shahryar, aged 7/8, Criminal Appeal Nos.67-L & 68-L of 2017. 2 and whisked away in a car while demanding a sum of Rs.500,000/- as ransom. The complainant was rushed to Jinnah Hospital, Lahore; examined at 8.35 a.m., he was noted with two entry wounds on left leg with corresponding exits. Incident was reported to the police at 11:40 a.m. In hot pursuit of the culprits, Sardar Ali, ASI, intercepted car bearing No.LZV-9611 on a police picket; the person on wheel decamped from the scene by scaling over an adjoining wall, while Nazir Ahmad co-accused was subdued alongside the child. The appellants stayed away from law; they were arrested on 8.7.2008 and 18.3.2009 respectively; Nazir Ahmad, co-accused had already faced trial with failures of his appeals throughout. It is in this backdrop that the appellants were convicted under Section 365-A of Pakistan Penal Code, 1860, Section 7(e) of Anti-Terrorism Act, 1997 and Section 324 read with Section 34 of the Code ibid; they are sentenced to death alongside collateral sentences for murderous assault. Their appeals met with no better fate with capital sentence reference, returned in affirmative. 3. First glance cannot escape preponderance of prosecution’s evidence; Iftikhar Khan, PW undoubtedly endured the assault; he was medially examined, noted to have injuries extensive in nature and consistent with the weapons allegedly used in the crime. First Information Report was recorded with a remarkable promptitude with accused prominently named therein; vehicle mentioned in the crime report was intercepted same day at police picket alongside Nazir Ahmed, co-accused with the child; later appeared as a witness to point out his finger upon the appellants. However, certain intriguing aspects of the case warrant an independent and careful scrutiny of evidence. The fate of the present appellants is not linked with the outcome of trial of Nazir Ahmad, co-accused, for a variety of reasons. The foremost question is as to how the complainant nominated the accused merely after having their momentary glimpses in a marriage ceremony few days before the occurrence. They were not with the child when the vehicle was intercepted, nor can it be held with certainty that the one who took to heels was one of them and this leaves Nazir Ahmad, co-accused alone in the field. Statement of the child, Criminal Appeal Nos.67-L & 68-L of 2017. 3 statedly of 7/8 years of age at the relevant time, certainly requires a very cautious scrutiny; he is reticent on important details of the episode, relating to the present appellants; being of an impressionable age, having experienced the nightmare his susceptibility to tuition cannot be ruled out. Argument that crime report was recorded after arrest of Nazir Ahmed, co-accused and the appellants were named therein on the basis of information other than purportedly laid by the complainant is not entirely beside the mark. While the occurrence cannot possibly be denied, nonetheless, nomination of the appellants on complainant’s knowledge is a circumstance fraught with doubts. A crowded ceremony would provide little space/opportunity to the complainant to remember the faces and names of the participants and thus once the source of information about appellants’ participation in the crime is found suspect it would be unsafe to rely upon the testimony of a vulnerable witness alone, particularly when the appellants were not arrested alongside the co-accused. Criminal liability is to be essentially settled on evidentiary certainty and not on moral satisfaction or factualities incompatible with evidence based upon truth. Prosecution’s case against the appellants cannot be viewed as beyond reasonable doubt and thus conviction cannot be maintained without potential risk of error. Resultantly, criminal appeals are allowed, impugned judgment is set aside. The appellants shall be released forthwith, if not required in any other case. JUDGE JUDGE Lahore, the 09th of May, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Mr. Manzoor Ahmad Malik Mr. Justice Mr. Sardar Tariq Masood Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.67-L of 2020 and Criminal Petition No.1133-L of 2014 (Against the judgment dated 17.10.2014 passed by the Lahore High Court Lahore in Crl Appeal No.280 of 2011 along with CST No.10-T of 2011) Shaban Akhtar (in Cr. A. No.67-L/2020) Umar Daraz (in Cr.P. No.1133-L/2020) …Appellant(s) Versus The State through Prosecutor General Punjab (in both cases) …Respondent(s) For the Appellant(s): Mr. Mobin Ahmed Siddiui, ASC For the Complainant: Mr. Akhtar Hussain Bhatti, ASC For the State: Mr. Khurram Khan, Addl. Prosecutor General Punjab Date of hearing: 20.10.2020. JUDGMENT Qazi Muhammad Amin Ahmed, J.- Shaban Akhtar, appellant, along with his brother Ahsan Akhtar, co-accused since acquitted, was tried by the learned Special Judge Anti Terrorism Court Sargodha on multiple counts that included abduction for ransom as well as homicide; upon conviction, both the accused were condemned to death on three heads with direction to pay compensation as well as fine; for screening of evidence, they were additionally sentenced to 7-years RI besides forfeiture of property vide judgment dated 15.2.2011. A learned Division Bench of the Lahore High Court Lahore acquitted Ahsan Akhtar, co-accused, from the charge while maintaining appellant’s conviction albeit alteration of death penalty into imprisonment for life vide impugned judgment dated 17.10.2014, vires whereof are being assailed both by the convict as well as the complainant; bound by a common thread, these are being decided through this single judgment. 2. Mubarak Ali, a lad aged 9/8, went missing after school hours from his home at 2/2:30 p.m. on 22.11.2010, located within the Criminal Appeal No.67-L of 2020 and Criminal Petition No.1133-L of 2014 2 precincts of Police Station Piplan, District Mianwali; he was initially searched by the family, however, upon failure, his father Umar Daraz (PW-2) laid information with the police on 24.11.2010; no one was nominated as suspect nor he apprehended any motive behind disappearance. On 25.11.2010, the complainant upon receipt of information through Sajjad Ahmed (PW-4) and Muhammad Mursaleen (given up), having last seen the deceased with the accused at about 3:00 p.m. nominated them as suspects; he also shared receipt of a missed call from two cell phone numbers i.e. 0301-5663916 & 0306- 317244. On 28.11.2010, a caller identified by the complainant through voice as Ahsan Akhtar, demanded ransom of rupees one million for release of his son; he joined police investigation on 04.12.2010 when the appellant pursuant to a disclosure led a police contingent to an uninhabited Baithak to point out the dead body, identified by the witnesses as that of the deceased; wrist joints and neck were tied, respectively with a rope and piece of cloth; the skin was peeled off in a putrefied condition. Hyoid bone was found fractured with a ligature mark measuring 23 x 1.8 cm, constricting the neck all around; compression of airways resulting into asphyxia was opined as cause of death, occurred within preceding five to ten days without any sign of carnal assault. As the investigation progressed, the Investigating Officer, upon disclosures, secured cell phone handsets from both the accused; two SIMS (subscriber identity modules) were produced by the complainant. Prosecution evidence primarily comprises statements of Umar Daraz complainant (PW-2), Sajjad Ahmad (PW-4) and the Investigating Officer Noor Muhammad (PW-9), unanimously denied by both the accused without being their own witness in disproof of the charge or defence evidence. 3. Learned counsel for the appellant contends that horrors of the incident notwithstanding, nonetheless, there is no credible evidence to even obliquely frame the appellant with the charge, particularly after prosecution’s failure qua Ahsan Akhtar accused, indicted inseparably within the integrity of the charge; that prosecution has not brought on record any forensic evidence to establish digital nexus of cell phone handset, allegedly recovered from the appellant to constitute conversational link with the SIMs (subscriber identity modules) produced by the complainant; that going by prosecution’s own case the ransom was demanded by a caller, whose voice was identified as that of Ahsan Akhtar co-accused, a story disbelieved by the High Court, Criminal Appeal No.67-L of 2020 and Criminal Petition No.1133-L of 2014 3 resulting into his acquittal that raised the very structure of the case to the ground. Evidence of last seen belatedly furnished by a partisan witness, namely, Sajjad Ahmad being far from plausible is hardly sufficient to sustain the charge. Appellant’s arrest, disclosure leading to the recovery of dead body and remission into judicial custody on 4.12.2010, events mind-bogglingly in quick succession are too intriguing to be believed by a prudent mind, concluded the learned counsel. The learned Law Officer has faithfully defended the impugned judgment whereas learned counsel for the complainant has vehemently defended the judgment of the trial Court; according to him, the prosecution in a manner truthful and straightforward produced confidence inspiring evidence available in the circumstances and, thus, High Court had no occasion either to acquit Ahsan Akhtar or alter penalty of death awarded to the appellant having regard to the brutality inflicted upon the innocent soul, leaving behind an abiding pain for the family. There was no axe for the witnesses to grind and as such they were rightly believed by the learned trial Judge for valid reasons, emphatically stressed the learned counsel. 4. Heard. Record perused. 5. Violence inflicted upon the child is abhorrently shocking leaving the family in a perennial trauma; the appellant and his co-accused have been blamed for the beastly act that certainly deserves no leniency, nonetheless, their guilt has to be dispassionately determined on the touchstone of ‘proof beyond doubt’; a proof structured on evidential foundations admitting no hypothesis other than their guilt. The child left home after attending the school, apparently for a routine play on 22.11.2010; his search by the family was an obvious exercise; with no clue, the incident was reported after more than 48 hours without nomination and this happened within a small rural locality i.e. Chak No.15/ML wherein according to the prosecution the child was last seen by Sajjad Ahmad (PW-4) in the company of both the accused while they were standing on the metalled road to await a Lahore bound bus to undertake a detour apparently without any stated purpose. Muhammad Mursaleen has opted to stay away from the witness box whereas Sajjad Ahmad is reticent on the relevant details in terms of point of time and place they noticed the deceased with the accused; they learnt about the calamity only on their return from Lahore on 25.11.2010. Sajjad Ahmad (PW-4) subsequently after disclosure of last seen faithfully remained with the prosecution to Criminal Appeal No.67-L of 2020 and Criminal Petition No.1133-L of 2014 4 attest various recoveries. It is rather intriguing that the witnesses were the only individuals in the village who had seen the child obligingly accompanying his assassins without being alarmed or surprised by their unusual movement. The witness admits to have a cell phone with him during his “stay” at Lahore; it is rather strange that he did not communicate with his family throughout his absence from the village and if at all he had any conversation was not informed about the incident that must have alarmed the small neighbourhood. Argument that the solitary witness was inducted on the basis of a mistaken/ misplaced suspicion cannot be viewed as entirely unrealistic. The Investigating Officer has not been able to collect any digital/ forensic data to establish communication between the appellant and the complainant despite seizure of cell phone handsets and SIMs (subscriber identity module). Automated system, beyond human interference could have conclusively established the telephonic conversation and prosecution’s failure to procure and bring on record easily available data has consequences as contemplated under Article 29 (g) of the Qanun-e-Shahadat Order, 1984. Complainant’s claim that he had identified Ahsan Akhtar by his voice on 28.11.2010 when he demanded ransom does not synchronize with his claim to have heard only “hello” on 23.11.2010, when he had already named both the accused on the basis of information shared with him by Sajjad Ahmad and Muhammad Mursaleen PWs on 25.11.2010. Apparently there was no earthly reason for the caller to expose his number to the family already suspecting him as a culprit in the crime. Chronology of events relied upon by the prosecution does not tally with the findings regarding the duration wherein the child was done to death; it also militates against the timeframe of the demand of ransom. The child went missing in the afternoon of 22.11.2010; the incident is reported on 24.11.2010 whereas the accused were nominated on the following day i.e. 25.11.2010 and it is subsequent thereto that on 04.12.2010 soon after his arrest, the appellant led to the recovery of the dead body, examined same day; the Medical Officer estimated time between death and postmortem within 5 to 10 days. The above events cannot be adjusted within the proximity of timeframe, suggested by no other than the prosecution’s own witness, without potential risk of error. The devastated family is certainly not responsible for the error nor can be possibly attributed any motive, nonetheless, the mosaic of appellant’s purported criminality is shattered beyond recognition on simple Criminal Appeal No.67-L of 2020 and Criminal Petition No.1133-L of 2014 5 calculation; his conviction requires “proof beyond doubt” which cannot be equated with moral satisfaction or strongest suspicion though structured upon beliefs most bonafide. Yet another predicament bracing the prosecution is acquittal of appellant’s brother on the same set of evidence, reflecting a possible view, standing insurmountably in impediment to adverse consideration qua the appellant, unless reversed, an option hardly available in circumstances. It would be unsafe to maintain the conviction. Criminal Appeal No.67-L of 2020 is allowed; the appellant is acquitted of the charge and shall be released forthwith if not required to be detained in any other case. As a natural corollary, Criminal Petition No.1133-L of 2014 stands dismissed. Judge Judge Judge Islamabad, the 20th October, 2020 Not approved for reporting Azmat/-

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.7-P of 2013 (Against the judgment dated 31.01.2007 passed by the Peshawar High Court, Peshawar in Criminal Appeal No.530 of 2005). State thr. Advocate General, KP …Appellant(s) VERSUS Muhammad Rafiq & others …Respondent(s) For the Appellant(s) : Syed Qaisar Ali Shah, Additional Advocate General, Khyber Pakhtunkhwa For the Respondent(s) : N.R. Date of Hearing : 29.04.2019 Judgment Qazi Muhammad Amin Ahmed, J.- Through leave of the Court, respondents’ acquittal from the charge of homicide by a learned division bench of the Peshawar High Court vide impugned judgment dated 31.1.2007 has been called into question; they were returned a guilty verdict by a learned Additional Sessions Judge, at Swabi for committing qatl-e-amd of Tariq Ahmed and Muhammad Rafiq on 11.10.1990 within the precincts of Police Station Swabi while they were being sent off by their mother Mst. Poshan, PW, on their way to Islamabad; convicted on two counts of homicide they were sentenced to imprisonment for life on each, to run concurrently with benefit of Section 382-B of the Code of Criminal Procedure, 1898. 2. Learned counsel for the appellant contends that there was no occasion for the learned High Court to acquit the respondents from the charge inasmuch as prosecution successfully proved its case beyond a shadow of doubt on the strength of confidence inspiring evidence leaving no space to entertain any Criminal Appeal No.7-P of 2013 2 hypothesis other than their guilt. It is next argued that presence of Mst. Poshan, PW with her sons at the time of their departure for Islamabad cannot be viewed with suspicion; on the contrary her last detour with the deceased sons is most confidence inspiring and she certainly is not expected to swap the real offenders through substitution. The impugned acquittal has resulted into miscarriage of justice warranting interference by this Court, concludes the learned counsel. 2. Magnitude of calamity and concomitant trauma for the family, notwithstanding what weighed with the learned High Court nonetheless is improbability of complainant’s presence at the crime scene during the fateful hours. Emotional attachments apart it is rather unusual for a woman more so in a pashtoon rural neighborhood to accompany her sons at a public thorough fare who had already spent preceding day in her company. Prosecution’s dilemma has been further compounded by deviation of Inzar Gul from his previous statement; conflict between ocular account and medical evidence noticed by learned High Court is not unrealistic. Once presence of Mst. Poshan, PW is found suspect, the testimony of Inzar Gul is also cast away. In this backdrop, impugned acquittal is premised on a prudently possible view which cannot be reversed merely on contra contemplation. Appeal is dismissed. JUDGE JUDGE Islamabad, the 29th of April, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.7-P/2014 (On appeal form the Judgment dated 28.05.2013 passed by the Peshawar High Court, Peshawar in Criminal Appeal No.558 of 2010). State through Director ANF Peshawar …Appellant(s) VERSUS Fakhar Zaman …Respondent(s) For the Appellant(s) : Mr. Muhammad Tariq Shah, Special Prosecutor, ANF For the Respondent(s) : N.R. Date of Hearing : 30.04.2019 ORDER Qazi Muhammad Amin Ahmed, J.- Fakhar Zaman, respondent herein, was intercepted by Anti Narcotics Force, Peshawar on 5.4.2009 with 82.600 kilograms of charas garda as well as 07 kilograms of charas pukhta; he was convicted under Section 9(c) of the Control of Narcotics Substances Act, 1997 vide judgment dated 17.5.2010 and sentenced to imprisonment for life along with fine of rupees fifty thousands or to undergo six months S.I. in lieu thereof. The learned Peshawar High Court, in appeal, vide impugned judgment dated 28.5.2013 upheld the conviction, however reduced the sentence to ten years R.I. with benefit of Section 382-B of the Code of Criminal Procedure, 1898 vires whereof are being challenged through leave of the Court, inter alia, on the ground that there was no occasion for the learned High Court to reduce the sentence from imprisonment for life to ten years as according to the proviso to Section 9(c) of the Act ibid, lowest mandated sentence for possessing contraband in excess of ten kilograms is imprisonment for life and as the learned High Court maintained respondent’s conviction, it had no option but to maintain the quantum of sentence as well. Criminal Appeal No.7-P/2014 2 2 2. The respondent was sent for through repeated process and he has found it convenient to stay away from the law; his absence is seemingly calculated to avoid the judicial process. It is by now well settled that an appellant or a respondent, though endowed with right of opportunity of hearing, nonetheless, cannot hold the process of law in abeyance to a point of time of his own choice and his case can be decided even in his absence if the default is deliberate; a case in hand. 3. The impugned view would not commend well with the law, unambiguously providing a sentence, not less than imprisonment for life as well as fine in case an offender is held guilty of possessing contraband in excess of ten kilograms as is the case with the respondent and therefore impugned view taken by the High Court is open to exception, warranting interference by this Court; consequently this appeal is allowed, impugned judgment dated 28.5.2013 is set aside and the sentence awarded by the learned trial Court is restored, however with benefit of Section 382-B of the Code ibid. Perpetual warrants of arrest shall issue to arrest the respondent so as to serve out the sentence, handed down by the learned High Court. JUDGE JUDGE Islamabad, the 30th of April, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Asif Saeed Khan Khosa, CJ Mr. Justice Faisal Arab Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No. 7-P of 2017 (Against the judgment dated 15.05.2013 passed by the Peshawar High Court, Peshawar in Criminal Appeal No. 768 of 2010) Hussain Shah, etc. …Appellants versus The State …Respondent For the appellants: Mr. Altaf Samad, ASC Mr. Tasleem Hussain, AOR For the State: Mr. Muhammad Tariq Kakar, State Counsel Date of hearing: 20.09.2019 JUDGMENT Asif Saeed Khan Khosa, CJ.: Hussain Shah and Abdul Sattar appellants were booked in case FIR No. 33 registered at Police Station Anti-Narcotics Force, Peshawar on 31.05.2009 in respect of an offence under section 9(c) of the Control of Narcotic Substances Act, 1997. The allegation leveled by the prosecution was that a trailer-truck being driven by Hussain Shah appellant was intercepted by a raiding party and from a secret cavity of that vehicle Charas weighing 12000 kilograms contained in 600 bags, each bag containing 20 packets, was recovered and samples of the recovered substance had subsequently been tested positive by the Criminal Appeal No. 7-P of 2017 2 Chemical Examiner. It was alleged by the prosecution that at the relevant time Abdul Sattar appellant was sitting on the front seat of the said vehicle next to the driver’s seat. It was maintained by the prosecution that Abdul Sattar appellant was a cleaner and a helper of the driver of that vehicle. After a regular trial the appellants were convicted by the trial court for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 and were sentenced to imprisonment for life each and to pay fine which convictions and sentences of the appellants were subsequently upheld and maintained by the High Court. Hence, the present appeal by leave of this Court granted on 27.09.2017. 2. Leave to appeal had been granted in this case in order to reappraise the evidence and with the assistance of the learned counsel for the parties we have undertaken that exercise. 3. Hussain Shah appellant was driving the relevant vehicle when it was intercepted and from a secret cavity of that vehicle a huge quantity of narcotic substance had been recovered and subsequently a report received from the Chemical Examiner had declared that the recovered substance was Charas. The prosecution witnesses deposing about the alleged recovery were public servants who had no ostensible reason to falsely implicate the said appellant in a case of this nature. The said witnesses had made consistent statements fully incriminating the appellant in the alleged offence. Nothing has been brought to our notice which could possibly be used to doubt the veracity of the said witnesses. Both the courts below had undertaken an exhaustive analysis of the evidence available on the record and had then concurred in their conclusion regarding guilt of the said appellant having been proved beyond reasonable doubt and upon our own independent evaluation of the evidence we have not been able to take a view of the matter different from that concurrently taken by the courts below vis-à-vis the said appellant. Criminal Appeal No. 7-P of 2017 3 4. It has been argued before us that the report submitted by the Chemical Examiner did not mention the necessary protocols followed or tests applied but we have seen the said report available on the record of the trial court and have found that the said report not only referred to the protocols adopted but also to the tests applied and, thus, we have not been able to find any deficiency in the said report. It has further been argued before us that the Chemical Examiner who had prepared the relevant report was not qualified to hold that position and in that connection Rule 3 of the Control of Narcotic Substances (Government Analysts) Rules, 2001 has been relied upon but we have found that there is nothing available on the record to conclude or hold that the Chemical Examiner preparing the relevant report was not qualified to hold that office. Apart from that a Notification is available on the record according to which the relevant Chemical Examiner had been duly notified by the Government as a Federal Government Analyst. The record further shows that the said Chemical Examiner had prepared the relevant report at a time when he was being assisted in the matter by Mrs. Farhana Shaukat who held the degree of M.Sc. Biochemistry and she too was notified by the Government as the Federal Government Analyst through the same Notification. In this view of the matter the objection raised before us regarding the Chemical Examiner in this case not being qualified to hold that office has failed to impress us. Yet another argument was raised before us regarding the trial court having no jurisdiction to take fresh samples from the recovered substance so that they may be examined by the Chemical Examiner but even that argument has not been found by us to be holding much water. The record of the case shows that initially 600 samples taken from the 600 bags recovered from the relevant vehicle had been sent to the Chemical Examiner for analysis but the Chemical Examiner had returned those samples and had required that a sample had to be taken from each and every packet of the substance recovered in this case and such packets were 12000 in number and it was in that backdrop that the trial court had instructed a Magistrate and under the supervision of that Magistrate fresh and separate Criminal Appeal No. 7-P of 2017 4 samples had been secured from all the 12000 packets recovered which samples were then sent to the Chemical Examiner and thereafter a report was submitted by the Chemical Examiner in the positive. It has also been argued before us that the appellants were not associated with the process of taking of fresh samples by the supervising Magistrate but the learned counsel for the appellants has failed to refer to any provision of law requiring that the accused persons had to be associated with such taking of samples. There are some precedents available which require that at the time of destruction of the recovered substance an accused person is to be associated with such process but neither any legal provision nor any precedent case has been referred to before us in support of the contention raised regarding association of the accused persons with taking of fresh samples by the trial court. Apart from that presumption of regularity and correctness was attached to the exercise undertaken by the trial court in that regard and there is nothing on the record to dislodge that presumption. 5. For what has been discussed above we have entertained no manner of doubt that the prosecution had succeeded in proving its case against Hussain Shah appellant beyond reasonable doubt. This appeal is, therefore, dismissed to his extent and his conviction and sentence recorded and upheld by the courts below are maintained. 6. As far as Abdul Sattar appellant is concerned it was alleged by the prosecution that he was a cleaner and a helper of his co- convict namely Hussain Shah and he was travelling in the same vehicle when the said vehicle was intercepted by the raiding party. It has been pointed out before us that according to the evidence brought on the record Abdul Sattar appellant also knew about existence of a cavity in the body of the relevant vehicle but nothing had been said by any prosecution witness about the said appellant having the requisite knowledge about availability of narcotic substance in such cavity of the vehicle. As a matter of fact no evidence worth its name had been brought on the record to Criminal Appeal No. 7-P of 2017 5 establish that the said appellant was conscious about availability of narcotic substance in a secret cavity of the relevant vehicle in which he was traveling along with its driver. The law is settled by now that if the prosecution fails to establish conscious possession or knowledge in that regard then a passenger cannot be convicted solely on the basis of his availability inside a vehicle at the relevant time. This appeal is, therefore, allowed to the extent of Abdul Sattar appellant, his conviction and sentence recorded and upheld by the courts below are set aside and he is acquitted of the charge by extending the benefit of doubt to him. Abdul Sattar appellant shall be released from the jail forthwith if not required to be detained in connection with any other case. Chief Justice Judge Judge Islamabad/Video Link at Peshawar 20.09.2019 Approved for reporting. Arif

IN THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction) PRESENT: Mr. Justice Manzoor Ahmad Malik Mr. Justice Syed Mansoor Ali Shah Mr. Justice Qazi Muhammad Amin Ahmed Criminal Appeal No.75-L of 2017 (On appeal from the judgment dated 22.04.2014 passed by the Lahore High Court, Lahore in Criminal Appeals No.1098 & 1116 of 2009, Murder Reference No.291 of 2009 and Criminal Revision No.866 of 2009). Tariq Mehmood …Appellant(s) VERSUS The State, etc. …Respondent(s) For the Appellant(s) : Mr. Munir Ahmed Bhatti, ASC For the Complainant(s) : Mr. Azam Nazeer Tarar, ASC For the State : Mr. Mazhar Sher Awan, Additional Prosecutor General Date of Hearing : 09.05.2019 JUDGMENT Qazi Muhammad Amin Ahmed, J Tariq Mehmood, appellant was tried alongside Waseem Sajjad, Amjad Sardar, Israr Ahmad, Ghulam Ali, Sikandar Hayat and Mst. Mehnaz Akhtar by a learned Additional Sessions Judge at Mandi Baha-ud-din for committing qatl-e-amd of Saif-ur-Rehman, deceased in addition to murderous assault on Farhan, PW and abduction of Mst. Tehmina Akram, PW; of them Ghulam Ali, Sikandar Hayat, Israr Ahmad and Mst. Mehnaz Akram were acquitted from the charge, whereas the appellant, Waseem Sajjad and Amjad Sardar were returned a guilty verdict. For homicide, the appellant was sentenced to death under clause (b) of Section 302 of the Pakistan Penal Code, 1860, whereas Waseem Sajjad and Amjad Sardar to imprisonment for life for being in the community of intention along with compensation of Criminal Appeal No.75-L of 2017. 2 Rs.100,000/- each; for murderous assault, the accused were sentenced to ten years R.I. each with fine of Rs.10,000/- and for abduction each was sentenced to seven years R.I. with fine of Rs.20,000/-; sentences were ordered to run concurrently with benefit of Section 382-B of the Code of Criminal Procedure, 1898. A learned Division Bench of Lahore High Court vide impugned judgment dated 22.04.2014 dismissed convicts’ appeals; a revision for enhancement of sentences met the same fate. It would be pertinent to point out that during pendency of the appeal, Waseem Sajjad, convict was released on bail by way of execution of sentence on 30.11.2011; the release warrant was however inadvertently in favour of Amjad Sardar, convict as well, in pursuance whereto both of them were enlarged on bail; they are away from law ever since. The learned High Court dismissed their appeal, however without reference to their departure from the array. 2. Prosecution’s case is structured upon statement of Muhammad Nauman, PW-4; according to him, during the fateful night at 8:15 p.m. the appellant along with co-accused, differently armed, trespassed into his home; they attempted to forcibly take away Samina Akram; upon family’s resistance, Waseem Sajjad, co- accused made a fire shot on Muhammad Farhan, PW on his right flank; as complainant and Saif-ur-Rehman attempted to rescue the girl the appellant fired upon Saif-ur-Rehman, deceased followed by a fire shot by Amjad Sardar; former, twice hit by the both, one by one; accused decamped with Samina Akram within witnesses’ view, recovered unscathed by the police after twenty days of the occurrence. The assailants avenged a suspected liaison between Muhammad Usman, PW with appellant’s cousin. Dissatisfied with investigation, the complainant preferred to prosecute the case through a private complaint. 3. Ocular account furnished by Muhammad Nauman, Muhammad Farhan and Mst. Tehmina Akram, PWs constitutes prosecution’s mainstay. Of them Muhammad Farhan sustained injury, substantially extensive in nature. Occurrence took place inside a residential premises. First sight cannot escape Criminal Appeal No.75-L of 2017. 3 preponderance of evidence, however on a closer view, emerges a picture incompatible with the events, narrated in the crime report. The accused mounted assault, as per prosecution’s own case to settle score with Muhammad Usman, PW for his alleged affair with the lady related to the appellant; it is disgrace that brought the assailants, face to face, with Muhammad Usman, PW, well within their view and reach it is astonishing that while being merciless without restraint upon others they spared prime target of assault. There can be no other inference that either Muhammad Usman was not present at the scene or the occurrence took place in a backdrop other than asserted in the crime report. More intriguing is recovery of Mst. Tehmina Akram, PW; according to her, she remained in captivity for twenty days, the poor soul was taken away to settle score for what her brother had done to a lady of assailants, a conduct repugnant, by all means, nonetheless, no one laid a finger upon the girl despite being at their mercy; she returned unharmed. It is mind boggling that after having shed so much blood why the lady was kept under immunity. Such superior conduct is not expected from the accused when the entire exercise was calculated to disgrace the family. Statement of Mst. Tehmina Akram is contradicted by Rana Muhammad Aslam, Inspector, CW- 1, the investigating officer; according to him, Mst. Tehmina Akram rejoined the family on her own without intervention of the police. In the witness box, she was confronted with her previous statement wherein she had blamed one Farooq alias Farooqi Thabal as primarily responsible for the crime though she denied, this fact was recorded by investigating officer in her previous statement. The investigating officer categorically stated in his examination-in-chief that the aforesaid Farooq alias Farooqi Thabal was principally responsible for the crime; a hired assassin, subsequently killed in a police encounter. Occurrence, statedly, took place on 20.1.2005 at 8.15 p.m. however autopsy was conducted following day at 11.45 a.m.; interregnum spaces the hypothesis of consultations/deliberations. What actually happened during the fateful night is left to our imagination. Even the learned trial Judge has not believed prosecution evidence qua majority of the accused. Once we have found the genesis of prosecution case Criminal Appeal No.75-L of 2017. 4 as inherently suspect, loss of life notwithstanding, we consider it grievously unsafe to maintain the convictions in a case fraught with improbabilities and positions, each self destructive. Criminal appeal is allowed, impugned judgment is set aside. The appellant shall be released forthwith, if not required in any other case. JUDGE JUDGE Lahore, the 09th of May, 2019 Ghulam Raza/* JUDGE

IN THE SUPREME COURT OF PAKISTAN (APPELLATE JURISDICTION) PRESENT: MR. JUSTICE IJAZ UL AHSAN MR. JUSTICE MUNIB AKHTAR MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI CRIMINAL APPEAL NO. 75-L OF 2021 (Against the judgment dated 10.05.2016 passed by the Lahore High Court, Bahawalpur Bench in Criminal Appeal No. 399-J/2012/BWP and Murder Reference No. 63/2012/BWP) Amanullah …Appellant(s) VERSUS The State and another …Respondent(s) For the Appellant(s): Sheikh Sakhawat Ali, ASC (Via video link from Lahore) For the State: Mirza Muhammad Usman, DPG For the Complainant: Malik Muhammad Imtiaz Mahl, ASC Date of Hearing: 15.11.2022 JUDGMENT SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Appellant Amanullah along with two co-accused was tried by the learned Additional Sessions Judge, Sadiqabad, pursuant to a case registered vide FIR No. 136/2011 dated 31.05.2011 under Sections 302/34 PPC at Police Station Bhong, Sadiqabad for committing murder of Din Muhammad, brother of the complainant. The learned Trial Court vide its judgment dated 27.11.2012 while acquitting the co-accused, convicted the appellant under Section 302(b) PPC and sentenced him to death. He was also directed to pay compensation amounting to Rs.200,000/- to the legal heirs of the deceased or in default whereof to further suffer six months SI. In appeal the learned High Court while maintaining the conviction of the appellant under Section 302(b) PPC, altered the sentence of death into Criminal Appeal No. 75-L/2021 -: 2 :- imprisonment for life. The amount of compensation and the sentence in default whereof was maintained. Benefit of Section 382-B Cr.P.C. was also extended to the appellant. Being aggrieved by the impugned judgment, the appellant filed Jail Petition No. 453/2016 before this Court wherein leave was granted by this Court vide order dated 08.02.2021 and the present appeal has arisen thereafter. 2. The prosecution story as given in the impugned judgment reads as under:- “3. Brief facts of the case as given by the complainant Muhammad Hamid (PW-5) in his ‘Fard Biyan’ (Ex.PG), on the basis of which the formal FIR was chalked out, are that he (complainant) was resident of Chak No. 184/P (district Rahimyar Khan) and was a blacksmith (Lohar) by profession. On 31.05.2011 at about 6.30 PM, he alongwith his brother Muhammad Din (deceased), Shabbir Ahmad son of Sikandar, resident of Chak No. 239/P and Asghar Ali son of Noor Muhammad, resident of Sanjarpur came at the residence of his maternal uncle (Mamoon) Abdul Sattar situated at Basit Solangi Mouza Noor Pur on motorcycles. In the meanwhile, Aman Ullah (appellant) while armed with 12 bore double barrel gun, Ikhtiar Ahmad (co- accused since acquitted) armed with pistol, Abdul Aziz (co-accused since acquitted) and Noor Hassan (co-accused since PO) both armed with firearm weapons came there. The appellant’s co-accused namely Abdul Aziz, Ikhtiar Ahmad and Noor Hassan raised lalkara to Amanullah (appellant) that Din Muhammad should not go alive whereupon Amanullah (appellant) made a straight fire shot upon Din Muhammad hitting on his head and thereafter, he made second fire shot which landed on his left hand and left buttock, as a result whereof, he succumbed to the injuries and died at the spot. The complainant alongwith his companions tried to apprehend the accused persons but they gave threats of dire consequences. On hearing the hue and cry, many people gathered at the place of occurrence whereupon the accused persons fled away from the scene of occurrence while brandishing their weapons. The motive behind the occurrence was that about three years ago the complainant (PW-5) was married with Mst. Irshad Bibi, daughter of Amanullah (appellant) and in Watta Satta marriage, sister of the complainant namely Allah Diwayee was married with Ihsan Ullah, son of Aman Ullah (appellant). Due to matrimonial dispute, the complainant (PW- 5) had divorced his wife about two years ago whereupon Ihsan Ullah had also ousted his wife (complainant’s sister) from his house who was pregnant at that time. Later on, she delivered a female child namely Mst. Raheeman Bibi, who was snatched by Ihsan Ullah on the day of her birth whereupon the complainant’s sister filed a habeas corpus petition in the Sessions Courts Rahimyar Khan and as Din Muhammad (deceased) used to pursue the said case, therefore, Amanullah appellant alongwith his co- accused, on account of having grudge over the matrimonial dispute and filing of habeas corpus petition, committed the murder of Din Muhammad deceased, in furtherance of their common intention. Criminal Appeal No. 75-L/2021 -: 3 :- 3. After completion of the investigation, report under Section 173 Cr.P.C. was submitted before the Trial Court. The prosecution in order to prove its case produced eleven witnesses. In his statement recorded under Section 342 Cr.P.C, the appellant pleaded his innocence and refuted all the allegations leveled against him. The appellant also got recorded his statement on oath under Section 340(2) Cr.P.C. and also produced Badar Ali as DW-2. 4. Learned counsel for the appellant while opening his arguments has stated that there are glaring contradictions and dishonest improvements in the statements of the eye-witnesses, which escaped the notice of the learned courts below. While reiterating the contentions raised before this Court when leave was granted, learned counsel squarely relied upon the grounds of leave wherein the main contention of the learned counsel was that the prosecution witnesses were not residents of the place where the occurrence had taken place and they have not given any plausible explanation for their presence at the spot at the relevant time. Contends that the prosecution witnesses are interested and related, therefore, their evidence has lost its sanctity and the conviction cannot be based upon it. Contends that the postmortem of the deceased was conducted with a delay of 10 hours for which no valid reason has been given. Contends that the prosecution has not been able to prove motive as alleged, which causes serious dent in the prosecution case. Lastly contends that the recovery of weapon of offence has also been discarded by the learned High Court, therefore, the appellant may be acquitted of the charge. 5. On the other hand, learned Law Officer assisted by learned counsel for the complainant vehemently opposed this appeal on the ground that the eye-witnesses had no enmity with the appellant to falsely implicate him in this case. It has been contended that the eye-witnesses have reasonably explained their presence at the spot at the relevant time, which is quite natural and probable and the medical evidence is also in line Criminal Appeal No. 75-L/2021 -: 4 :- with the ocular account, therefore, the appellant does not deserve any leniency from this Court. 6. We have heard learned counsel for the parties at some length and have perused the evidence available on the record with their able assistance. A bare perusal of the record shows that the unfortunate incident, wherein the brother of the complainant lost his life, took place on 31.05.2011 at 6.30 PM. The matter was reported to the Police instantly and the FIR was lodged on the same day at 8.40 PM i.e. just after two hours of the occurrence. Keeping in view the inter se distance between the place of occurrence and the Police Station i.e. 13.5 kilometer, the contention of the learned counsel that the FIR was delayed has no force. The occurrence took place in the broad daylight whereas the parties were known to each other, therefore, there is no chance of misidentification. The ocular account in this case has been furnished by Muhammad Hamid, complainant (PW-5) and Shabbir Ahmad (PW-6). Although both these witnesses were not residents of the locality where the occurrence took place but they have reasonably explained their presence at the place of occurrence at the relevant time by stating that they had come to the house of their maternal uncle Abdul Sattar in connection with the matter of their land situated in Basti Solangi, Mouza Noor Pur. It is not denied by the defence anywhere that the said witnesses had no land in the vicinity. The presence of the said witnesses in the house of their maternal uncle cannot be termed as unnatural. These prosecution witnesses were subjected to lengthy cross-examination by the defence but nothing favourable to the appellant or adverse to the prosecution could be brought on record. Both these PWs remained consistent on each and every material point inasmuch as they made deposition according to the circumstances surfaced in this case, therefore, it can safely be concluded that the ocular account furnished by the prosecution is reliable, straightforward and confidence inspiring. The medical evidence available on the record further corroborates the ocular account so far as the nature, Criminal Appeal No. 75-L/2021 -: 5 :- time, locale and impact of the injuries on the person of the deceased is concerned. So far as the argument of the learned counsel for the appellant that the postmortem of the deceased was conducted after a delay of 10 hours is concerned, the learned High Court has rightly observed that no question regarding the reason for the said delay was put to Dr. Gohar Abbas (PW-1). Further, in a developing country like ours, it cannot be expected that the medical staff along with other facilities is readily available during the odd hours of the night that too in a remote area of southern Punjab, hence, this contention has no legal force, which is repelled. Nonetheless, the injuries ascribed to the appellant on the body of the deceased were found available by the Doctor, who conducted postmortem examination. Even otherwise, it is settled law that where ocular evidence is found trustworthy and confidence inspiring, the same is given preference over medical evidence. As far as the question that the complainant was brother of the deceased, therefore, his testimony cannot be believed to sustain conviction of the appellant is concerned, this Court has time and again held that mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses. Learned counsel for the appellant could not point out any plausible reason as to why the complainant has falsely involved the appellant in the present case and let off the real culprit, who has committed murder of his real brother. Substitution in such like cases is otherwise a rare phenomenon. During the course of proceedings, the learned counsel contended that there are material discrepancies and contradictions in the statements of the eye-witnesses but on our specific query he could not point out any major contradiction, which could shatter the case of the prosecution. Even if there are some minor discrepancies, which do not hamper the salient features of the prosecution case, the same should be ignored. Even otherwise, the accused cannot claim benefit of such minor discrepancies. So far as the motive part of the prosecution story is concerned, the learned High Court has discarded the same by holding that the motive as alleged does not appeal to a prudent mind because if the complainant had divorced the daughter of the appellant, Criminal Appeal No. 75-L/2021 -: 6 :- then the appellant must have committed his murder and not of his brother. However, in our view there is a very strong motive, which is not only orally proved but the pendency of the habeas corpus petition by the sister of the complainant and deceased in the Sessions Court, which was being pursued by the deceased, leaves no room to disbelieve the motive part of the prosecution story. As such, we are constrained to observe that the learned High Court has discarded the motive on flimsy grounds, which cannot be accredited by any stretch of imagination. So far as recovery is concerned, admittedly the crime empties and the weapon of offence were sent to the office of Forensic Science Laboratory together, which makes it doubtful as it has been held by superior courts frequently, as such, the recovery was rightly disbelieved by the learned High Court. In these circumstances, there is sufficient evidence available to sustain the conviction of the appellant. So far as the quantum of punishment is concerned, keeping in view the fact that recovery was disbelieved, the learned High Court has already taken a lenient view and converted the sentence of death into imprisonment for life to meet the ends of justice, hence, it leaves no room for us for further deliberation on this score. 7. For what has been discussed above, we do not find any merit in this appeal, which is dismissed. The above are the detailed reasons of our short order of even date. JUDGE JUDGE JUDGE Islamabad, the 15th of November, 2022 Approved For Reporting Khurram