Summary: (a) Martial Law Orders (C.M.L.A-'s) No.4- -Paras. 2 & -Paras. 2 & 3 of M.L.O. No.4 conferred jurisdiction on the Military Court to try and punish any person for offences under any Martial Law Order or under any other laws mentioned in cl. (a) thereof notwithstanding that the offence was triable exclusively by a Special Court or Tribunal or Special Judge or any other Authority or body. [p. 2271 A (b) Martial Law Orders (C.M.LA's) Nos. 4 & 5- - Martial Law Regulation (C.M.LA's) No.3 - Penal Code (XLV of 1860), Ss.307, 326 354, 452, 148 & 149 - West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S. 16 - Constitution of Pakistan (1973), Art. 199-Accused charged with offences under M.L.R. No.3 (C.M.L.A.'s), Ss. 307, 326, 354, 452, 148 & 149, P.P.C. and S.16, Maintenance of Public Order Ordinance, 1960 - Imposition of fine by Summary Military Court - Validity - Although imposition of fine was not contemplated by M.L.R. No.3 but the fine could validly be imposed by the Summary Military Court under various provisions o P.P.C. and Maintenance of Public Order Ordinance, 1960 and no exception could be taken to that. [p. 2271 B & C (c) Martial Law Order (C.M.L.A.'s) NoA & 5- - Martial Law Regulation (C.M.L.A.'s) No.3 - Penal Code (XLV of 1860), Ss. 307,326,354, 452,148 & 149 - West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S. 16 - Constitution of Pakistan (1973), Arts. 199, 4, 23, 24 & 270-A - Constitutional petition-Order of confiscation of property of convicts by Summary Military Court - Convicts were tried under Martial Law Regulation (C.M.L.A.'s) No.3; Ss.307,326,354,452,148 & 149, P.P.C. and S. 16 of Maintenance of Public Order Ordinance 1960 - Summary Military Court having no jurisdiction to order confiscation of property of convicts, order of confiscation was coram non judice and confiscation of property violated Arts. 4, 23 & 24 of the Constitution of Pakistan (1973) and incapable of conferring any right on the Government on the basis of mutation sanctioned in its favour - Confiscation of property could not be treated "as an act done or purported to have been made in good faith" within the meaning of Art. 270-A (2) (4) (5)-Property being still intact and having not been sold away by the Provincial Government was capable of being restored to the petitioners - High Court while giving effect to the Fundamental Rights of petitioners ordered restoration of confiscated property to them alongwith the benefit derived by the Provincial Government during the period the property was enjoyed by it. [pp. 229, 231, 2321 D, F, G & H Federation of Pakistan and another v. Malik Ghulani Mustafa Khar PLD 1989 SC 26; State v. Zia-ur-Rehman PLD 1973 SC 49; Federation of Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151; Inamur Rehman v Federation of Pakistan and others 1992 SCMR 563; Abul A'la Maudoodi v Government of Pakistan PLD 1964 SC 673 and Benazir Bhutto v. Federatio of Pakistan PLD 1988 SC 416 reE (d) Constitution of Pakistan (1973)- - Art. 270-A - Validation covered under Art. 270-A, Constitution of Pakistan - Extent. [p. 2311 E Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 ref. Ch. Ijaz Ahmad, Dy. Attorney-General for the Federation.

Summary: Penal Code (XLV of 1860)- -Ss.354 & 323-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.ll &. 18-Appreciation of evidence-Federal Shariat Court set aside convictions and sentences under Ss1l & 18 of the Ordinance, 1979 and instead convicted accused under S.354, P.P.C. for the reasons that three brothers (accused) could not join in raping the ladies, that was actually the attempt to disgrace them because they harboured in their mins a strong suspicion that one of the close relatives of the ladies was maintaining illicit relations with the daughter of one of the accused-No such aggravated version of the occurrence was given as was attempted at the trial in F.I.R.-Male witnesses had brought out the events at the trial in the aggravated form as were not discussed before the Police-Hold, reasons given by Federal Shariat Court were all relatable to material on record which in any judicial trial required consideration and benefit in a case of such discrepancies must fairly be extended to the accused and not to the prosecution.

Summary: THE STATE-Respondent Offence of Zina (Enforcement of Hudood) Ordinance (VII d 1979)- -Ss. 18 & 10-Penal Code (XLV of 1860), S. 354-Allegation of Zina-bil-Jabr-Delay in lodging of F. I. R.-Statement of lady that accused came upon her and caught hold of her breasts accepted by trial Court-Delay in lodging of F. I. R. and lack of independent corroborative evidence as such loses significance-Accused, held, could not be convicted of attempting to commit Zina-bil-Jabr butt was merely a case of outraging modesty of a woman-Conviction of accused under S. 18 read with S.l0, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was, therefore, not sustainable as offence committed by accused really fell under S. 354, P.P.C. in circumstances.

Summary: (a) Constitution of Pakistan (1973) - Art. 212-Penal Code (XLV of 1860), Ss. 342, 354, 376 & 511 Civil service-Leave to appeal granted to upper subordinates of Police Force to examine, inter alia, whether it was incumbent upon competent Authority to necessarily wait for result of judicial trial, or in any case to adopt more elaborate procedure of inquiry, for coming to a positive conclusion with regard to their innocence or guilt.-[Civil service]. (b) Words and phrases - - Word `malversation'-Means-Corrupt behaviour in position of trust, corrupt administration of public money etc. (c) Words and phrases -.-.- Word "Corrupt"-Means rotten, depraved, wicked and influenced by bribery. (d) Words and phrases"Misconduct"-Definition in Punjab Police (Efficiency and Discipline) Rules, 1975, r. 2(iii). (e) Punjab Police (Efficiency and Discipline) Rules, 1975 Rr. 6 & 2(iii)-Penal Code (XLV of 1860), Ss. 342, 354, 376 & 511-Charges of malversation and misconduct and criminal charges under Ss. 342, 354, 376 & 511, P. P. C. against police officials-Scope of proceedings in criminal trial and charges of malversation and misconduct-Charges of malversation and misconduct, held, had nothing directly to do with criminal charge-Both charges were not co-extensive and inter-connected-Judicial trial could not serve as substitute for departmental inquiry.-[Civil service]. (f) Punjab Police (Efficiency and Discipline) Rules, 1975 8. 6-Charges of misconduct and malversation-Competent Authority is conferred with discretion to decide whether a departmental inquiry through an inquiry officer is not necessary-Such discretion is not controlled by any pre-requisite or guidelines. (g) Punjab Police (Efficiency and Discipline) Rules, 1975 - R. 6-Charges of misconduct and malversation-Show cause Where a superior officer, who had even otherwise the authority to control and supervise functioning of his subordinates conducted a raid and results of such raid were accepted by accused officers themselves; resort to show cause procedure without appointing any inquiry officer, held, could not on any principle be objected to as abuse of discretion of competent Authority or unjustified in law. (h) Evidence Act (I of 1872) - Ss. 40, 41, 42 & 43-Relevancy of judgment in criminal case-Extent.-[Judgment]. A judgment of acquittal in a criminal case only decides that the accused had not been proved guilty of the offence with which be had been charged and to this extent only and no more. It is to be taken as correct and conclusive in a subsequent civil suit between the parties, the opinion and conclusions expressed in the judgment being otherwise irrelevant and inadmissible in such proceedings. Muhammad Azam v. Muhammad Iqbal and others P L D 1984 S C 95 and M. Monir's Commentary on the Evidence Act, Vol. I, p. 591 ref. (i) Punjab Police (Efficiency and Discipline) Rules, 1975 ' R. 6-Penal Code (XLV of 1860), Ss. 342, 354, 376 & 511Evidence Act (I of 1872), Ss. 40, 41, 42 & 43-Funjab Civil Servants Act (VIII of 1974), S. 4-Charges of malversation and misconduct and criminal charges under Ss. 342, 354, 376 & 511, P. P. C. against police officials-Criminal trial and departmental proceedings-Relevancy of judgment in criminal case before Service Tribunal-Judgment in criminal case could be relevant only for ascertaining whether it was a judgment of conviction or acquittal and whether it was an honourable acquittal-Other opinion and findings apart from such two findings, recorded or expressed in judgment, held, could not be utilised by Service Tribunal for unsettling other proceedings. (j) Punjab Civil Servants Act (Vlli of 1974-) - S. 4-Punjab Police (Efficiency and Discipline) Rules, 1975, r. 6Charges of misconduct and malversation-Discretion of competent Authority deciding to hold departmental inquiry without appointment of inquiry officer-Services Tribunal could not lay down requirements for competent authority exercising such discretion-Good record, press reports and quality of service rendered by official was not a criteria for determining whether inquiry should be held after appointing an inquiry officer or by issuing a show-cause notice straightaway-Nature of allegation, time, occasion, place and presence or absence of superiors, etc. might have a bearing on question-No exhaustive or enumerative description of all facts and circumstances could be provided-Competent authority was the best Judge of it and its discretion could not be controlled by such standards. (k) Punjab Police (Efficiency and Discipline) Rules, 1975

Summary: THE STATE-Respondent Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) - S. 18-Penal Code (XLV of 1860), S. 354-Intention to commit Zina-Girl aged 16/17 years accosted by two accused persons who caught hold of her-One accused seized her breasts and bit her face with his teeth while the other removed her loin-cloth from her person-During struggle, shirt of victim girl was also torn and she became naked-On her raising alarm prosecution witnesses reaching spot and witnessed occurrence-Accused while running away from spot took away loin-cloth and Dopatta along with-Girl returned home after wrapping herself in chaddar offered by witnesses-Question whether offence of accused fell under S. 354, P. P. C. or under S. 18. Offence of Zina (Enforcement of Hudood) Ordinance, 1979-Held, nature of injuries caused upon victim girl, the place where they were caused, on cheeks and a linear abrasion on her leg-conduct of accused and manner, in which they acted, all indicated that their intention was to commit Zina which intention was frustrated by arrival of prosecution witnesses, on spot-Conviction under S. 18, therefore, was justified and not liable to be interfered with.

Summary: (a) Martial Law (Pending Proceedings) Order (P. O. 14 of 1972) - Art. 5-Pardon-Civil Servant of Province of Sind convicted of an offence by a Military Court in Punjab-Could be pardoned by Punjab Governor even though sentence of imprisonment served out[Pardon-Civil service]. (b) Martial Law (Pending Proceedings) Order (P. O. 14 of 1972) - Art. 5-Pardon-Civil Servant of Province of Sind convicted of an offence by a Military Court in Punjab and dismissed from service by Sind Government but granted pardon by Punjab Governor on representation for his re-instatement in service, such representation neither actually asking for pardon nor for remission of sentence already served out-Pardon granted by Punjab Governor, held, did not oblige Sind Governor to restore civil servant to his former position.[Pardon-Civil service]. In his representation to the Governor of Punjab, the appellant did not actually ask for pardon, nor for the remission of his sentence. This was obviously because he had already served his sentence and therefore, nothing remained to be remitted. It is no wonder therefore, that the appellant described his petition to the Punjab Governor as "representation"for his"re-instatement in service from the date of suspension with all the benefits". Hut the prayer conveniently ignored the fact that the appellant had been dismissed from service by the Governor of Sind as an aftermath of the appellant's conviction by the Summary Military Court. It is difficult to see how and upon what principle the order of the Punjab Governor pardoning the appellant could oblige the Governor Sind to restore the appellant to his former position from which he had earlier been removed. The latter is not under the direction of the former. Indeed this explains why the Governor of the Punjab merely pardoned the appellant purporting to be under Article 5 of the Martial Law (Pending Proceedings) Order, 1972 (P. O. 14 of 1972) and made no order as to his restoration to his former office. The question how and under what principle can the pardon granted by the Punjab Governor to a person on the pay roll of the Province of Sind can bind that Province which after the dissolution of the Province of West Pakistan, became a distinct political entity with its executive authority vesting in the Governor of Sind? It can scarcely be controverted that the order being an executive fiat of the Punjab Governor had binding effect within the Province of the Punjab and upon officers subordinate to him and not in another Province. (c) Martial Law (Pending Proceedings) Order (P. O. 14 of 1972)- - Art. 5 read with Criminal Procedure Code (V of 1898), S. 401(l)Pardon-Commutation or grant of remission-Difference.-[Pardon]. Power to grant pardon under Article 5 of President Order 14 of 1972 is different from the Provincial Government's power to order commutation or grant remission under section 401, Cr. P. C. The section by its subsection (1) empowers the Provincial Government"to remit the whole or part of the punishment to which (any person) has been sentenced". The section does not include within its ambit, power to grant pardon. Power to grant pardon until the coming into force of P. O. 14 of 1972 had been exclusively reserved to the President and before him, the Governor General under the successive Constitutional enactments. Again power to grant pardon is much larger in its content than the power merely to remit a sentence, and pardoning power was never given to the Governor of a Province before. (d) Martial Law (Pending Proceedings) Order (P. O. 14 of 1972)- - Art. 5-Pardon, effect of-Free pardon-Does not restore convicted person to public office forfeited by, or in consequence of, conviction-Nor does such pardon restore right to a licence, or to practice a profession revoked because of conviction-Such pardon may. however, remove disability for fresh grant or employment.-[Pardon-Civil service]. A free pardon does not restore a convicted person to public office forfeited by or in consequence of conviction; nor does it restore a right to a licence or to practice a profession which has been revoked because of the conviction, though it may remove disability for fresh grant or employment. Hay v. Jartries (1890) 24 Q B D 561 and John Bennet v. Dr. Easedale 79 E R 651 held not relevant. U. S. v. Wilson 7 Pet. 150; Halsbury's Laws of England, 4th Edn., p. 608, Monograph 952; Black's Law Dictionary; American Jurisprudence, Vol. 39, p. 555; Exparte Garland (1866) 4 Wall. 33 and John Knote v. United States S C Rep. Ed. 149-157 ref. (f) Constitution of Pakistan (1972)- -Arts. 280(2) & 281(2)-Vires of order-Challenge to-Nothing suggesting pardon being granted to convicted civil servant on ground of his conviction by Military Court being illegal and mala fide nor any such finding recorded by any Court of appropriate jurisdiction Order of Military Court convicting civil servant, held, protected under Art. 280(2)-Penal Code (XLV of 1860), Ss. 354 & 391.-[Pardon-Civil service]. Karamat Ali v. The State P L D 1976 S C 476 ref.

Summary: Bail- - -Allowed by High Court, with direction, that accused "can always be taken back into custody" should he interfere with course of trial-[Offence under Ss. 354, 376/511, P. P. C.] A. U. Sajjad, Assistant Advocate-General for the State.

Summary: (a) Criminal Procedure Code (V of 1898) –- S. 497(1), 4th proviso –- Bail –- Statutory delay –- Female accused –- Exception to statutory bail due to being declared a "hardened, desperate or dangerous criminal" –- Scope and application –- Principles reiterated –- Petitioner, a female accused, sought post-arrest bail on the ground of statutory delay, having remained behind bars for over one year without conclusion of trial –- Allegation against petitioner was that she, along with two accomplices, robbed the deceased of cash and bed sheets, and upon resistance, threw red chili powder in his eyes and set him on fire with petrol, resulting in over 50% burn injuries and death after days of agony –- Held, although ordinarily a female accused not convicted of a capital offence is entitled to bail after a continuous detention of one year without conclusion of trial, such entitlement is not absolute –- Under 4th proviso to S.497(1), Cr.P.C., bail shall not be granted if the accused is, in the opinion of the Court, a hardened, desperate or dangerous criminal –- Supreme Court in Shakeel Shah’s case explained that such determination is based on the nature and gravity of the offence, the violent means employed, the societal threat posed, and, if available, past criminal record –- In present case, the atrocious mode and manner of commission of offence, resulting in death by immolation, reflected the petitioner’s callous and violent disposition –- Court held petitioner to be a hardened, desperate or dangerous criminal within the contemplation of 4th proviso to S.497(1), Cr.P.C. –- Bail refused despite statutory delay and gender of accused. Cited Case: • Shakeel Shah’s case (reference to Supreme Court interpretation of “hardened, desperate or dangerous criminal”) Disposition: Bail petition dismissed.

Summary: (a) Criminal Procedure Code (V of 1898): ---- S. 173 ---- Framing of charge ---- Trial commences only after framing of charge ---- Jurisdiction of Special Court under the Anti-Rape (Investigation & Trial) Act, 2021 ---- Petitioner's case was registered under S. 354 of the Pakistan Penal Code, 1860 (PPC), and the challan report was submitted to the Judicial Magistrate ---- The Magistrate, considering the offense as a scheduled offense under the Anti-Rape (Investigation & Trial) Act, 2021, referred the matter to the Sessions Judge, who subsequently assigned it to the Additional Sessions Judge ---- The Additional Sessions Judge, without framing charge, ruled that S. 354 PPC was not attracted and remanded the case back to the Area Magistrate for trial ---- Held, trial commences only after framing of charge, and any determination regarding the applicability of scheduled offenses must occur during trial as per S. 16(3) of the Anti-Rape (Investigation & Trial) Act, 2021 ---- Impugned order, having been passed before framing of charge, was held to be premature and beyond jurisdiction. (b) Anti-Rape (Investigation & Trial) Act, 2021: ---- S. 16(3) ---- Exclusive jurisdiction of Special Court to determine whether an offense falls within the schedule ---- Interpretation of "in the course of trial" ---- The Act empowers the Special Court to determine during the course of trial whether an offense is a scheduled offense or not ---- Trial, as settled in precedent, commences only upon framing of charge ---- Impugned order held to be in violation of S. 16(3) of the Act, as no charge had been framed before making such a determination ---- Case law relied upon: Haq Nawaz v. State (2000 SCMR 785) and Niaz Ahmed v. Aijaz Ahmed (PLD 2024 SC 1152) ---- Application of the legal maxim A communi observantia non est recedendum (when the law prescribes a particular procedure, it must be followed accordingly or not at all). (c) Administration of Justice: ---- Jurisdictional error ---- Special Court can only exercise powers prescribed under law ---- Decision rendered in absence of proper legal procedure is not sustainable ---- The Additional Sessions Judge, having disregarded the mandatory procedure under the Anti-Rape (Investigation & Trial) Act, 2021, acted beyond jurisdiction ---- The impugned order, therefore, was set aside and the matter remanded for fresh adjudication after framing of charge, ensuring compliance with procedural requirements. ----Disposition: Petition allowed. The impugned order dated 30.08.2023 was set aside, and the case was remanded to the Additional Sessions Judge, Chunian, for a fresh decision in accordance with law.

Summary: (a) Criminal Procedure Code (V of 1898) – ----S. 497(5) – Cancellation of bail – Considerations for cancellation of bail distinct from grant of bail – Bail once granted requires strong and exceptional grounds for cancellation – Petitioner, complainant in the case, sought cancellation of bail granted to the respondent by the Additional Sessions Judge – Allegations against the respondent included unlawful entry into the complainant’s house and assault – Petitioner contended that the respondent had remained a fugitive from the law and had a criminal record, making him undeserving of bail – However, prosecution failed to establish any misuse of bail by the respondent – High Court held that the Additional Sessions Judge had rightly exercised discretion in granting bail since Section 354, P.P.C. was bailable and Section 452, P.P.C. did not fall within the prohibitory limb of S. 497, Cr.P.C. – Petition dismissed. Cited Cases: • Usman v. Muhammad Azam and another (2001 PCr.LJ 1461 Peshawar) • Nasir and others v. The State (NLR 1991 Criminal 527 Lahore) ----Disposition: Petition dismissed.