Summary: Minority opinion of 2025 SCP 164 ---- (a) Constitution of Pakistan, 1973 ----Arts. 8(3)(a), 175(3), 2A, 9, 10, 10A, 19A, 25, 227----Independence of judiciary---Fundamental rights---Military courts---Trial of civilians---Validity---Scope Trial of civilians under the Pakistan Army Act, 1952 (PAA), held unconstitutional—Clause (d) of s. 2(1) of PAA, which brought civilians under military jurisdiction, not covered by the exemption from fundamental rights under Art. 8(3)(a) of the Constitution—Courts martial being executive forums are outside the scope of Art. 175(3) and cannot exercise judicial functions over civilians—Such trials violate rights to liberty, due process, fair trial, equality, and Islamic injunctions as guaranteed under Arts. 2A, 9, 10, 10A, 19A, 25, and 227—Military officers presiding over such trials do not meet the constitutional standard of independence and impartiality required of judicial officers. (b) Pakistan Army Act, 1952 ----S. 2(1)(d), S. 59---Scope---Trial of civilians by courts martial---Jurisdiction---Excess of constitutional limits Clause (d) of s. 2(1) PAA allowing trial of civilians by military courts declared ultra vires the Constitution—Such provision does not serve disciplinary purposes for Armed Forces personnel and hence cannot qualify for constitutional exemption—Convictions and sentences of civilians by courts martial declared to be coram non judice and set aside. (c) Pakistan’s International Obligations ----International Covenant on Civil and Political Rights, 1966 (ICCPR)---UN Human Rights Principles---Right to fair trial---Trial of civilians by military courts---Violation Supreme Court held that military trials of civilians violate Pakistan’s international obligations under ICCPR and other UN treaties—Right to be tried by an independent and impartial tribunal is fundamental—Military courts comprising serving officers cannot satisfy such standards in case of civilians. (d) Code of Criminal Procedure, 1898 ----S. 169---Transfer of cases from military to civil courts---Post-decision implementation Civilians previously convicted by military courts for incidents of 9th May 2023 to be treated as under-trial prisoners—Their cases stand transferred to competent civil courts for trial under regular criminal law—Those acquitted or who have completed their sentences before courts martial deemed discharged under S. 169 Cr.P.C. (e) Article 245 of the Constitution ----Scope and limits---Use of armed forces---Functionality---Excess of jurisdiction Trial of civilians by Armed Forces for offences allegedly committed during civil unrest on 9th May 2023 declared beyond the functional scope permitted under Article 245 of the Constitution—Such judicial functions are not assigned to military authorities.

Summary: (a) Criminal Procedure Code (V of 1898) — S. 497 — Penal Code (XLV of 1860), Ss. 324, 34 — Explosive Substances Act (VI of 1908), Ss. 3/5 — Arms Ordinance, 1965, S. 13-AO — Bail, grant of — Attempt to commit murder — Use of firearms and explosives — Allegations based on suspicion — Delay in FIR — Petitioner accused of firing outside complainant’s house, causing injury — FIR lodged after five hours with no explanation — Complaint based on suspicion due to old enmity; complainant did not directly witness occurrence — Held, accusation not based on direct evidence — Prima facie case required further inquiry — Delay in FIR and absence of independent ocular evidence considered material — Bail granted. (b) Bail — Further inquiry — Scope — When FIR contents are based on suspicion, no specific role is attributed, and other co-accused were discharged under S. 169 Cr.P.C., the case falls within ambit of further inquiry — Defence established reasonable doubt — Petitioner’s advanced age (73 years) also considered as a mitigating factor — Mere past criminal history without conviction cannot be sole ground for denying bail. Rel. 2020 SCMR 871; 2022 SCMR 1467; 2012 SCMR 573. (c) Bail — Habitual offender — Scope — Prosecution argued petitioner involved in multiple cases — Held, mere pendency or registration of cases without conviction is insufficient to treat a person as habitual offender — Bail cannot be withheld solely on such ground unless guilt is proved through conviction. Disposition: Petition allowed. Petitioner admitted to post-arrest bail on furnishing bail bonds of Rs. 500,000 with two local sureties to satisfaction of trial court.

Summary: Inquiry not compulsory before filing FIR --- Abduction, legal procedure, appeal against High Court order---Petitioner, Syed Qamber Ali Shah, challenges High Court's dismissal of a lower court order concerning the alleged abduction of Salman Shah---Lower court had directed SHO, Police Station Ghotki, to register FIR against alleged abductors under Section 22-A, Cr.P.C., after determining the presence of a cognizable offence---High Court overturned this, citing procedural issues and questioning merits of the case, leading petitioner to appeal for reinstatement of the lower court?s directive---Supreme Court notes missteps by High Court in adopting an investigatory stance outside its jurisdiction under Section 561-A, Cr.P.C.---Reiterates the procedural necessity for SHO to register FIR upon finding of a cognizable case without conducting prior independent verification of claims---Judgment reinstates the lower court's order, directing immediate compliance and strict adherence to legal standards by police officials. Relevant cases include Ghulam Muhammad v. Muzammal Khan (PLD 1967 SC 317), highlighting the non-investigative role of police in FIR registration.-------1) Power & function of Justice of peace under Section 22-A of Cr.P.C (2) Section 154, 155, 169 & 173 Cr.P.C. (3) Responsibilities of Investigating Officer. (4) Jurisdiction of High Court under Section 561-A, Cr.P.C.--------Issues:Whether the High Court was correct in setting aside the Justice of Peace's order directing the Station House Officer (S.H.O.) to register an FIR based on the petitioner's application?Whether the Justice of Peace exceeded his jurisdiction in ordering the registration of the FIR without detailed scrutiny of the evidence presented?Whether the Justice of Peace?s directive was a necessary intervention in light of the police's refusal to register the petitioner?s complaint?----Holding/Reasoning/Outcome:The Supreme Court of Pakistan allowed the criminal petition, converting it into an appeal, and overturned the High Court's decision. The Court held:The Justice of Peace did not exceed his jurisdiction by directing the S.H.O. to record the petitioner?s statement and register an FIR if a cognizable offence was made out. The role of the Justice of Peace is primarily to ensure that complaints which are refused registration by police are given due process.The High Court improperly assumed the role of an investigator and inappropriately touched on the merits of the case, which led to an erroneous setting aside of the Justice of Peace's order.The Supreme Court emphasized that the Justice of Peace?s function is to facilitate the administration of criminal justice and not to conduct a detailed investigation, which remains the prerogative of the police.----Citations/Precedents:Sughra Bibi vs. State [PLD 2018 SC 595]Babubhai v. State of Gujrat and others [(2010) 12 SCC 254]Ghulam Muhammad vs. Muzammal Khan [PLD 1967 SC 317]Muhammad Bashir v. Station House Officer, Okara Cantt [PLD 2007 SC 539]Brig. (Retd.) Imtiaz Ahmad vs. Government of Pakistan [1994 SCMR 2142]Norwest Holst Ltd. v. Department of Trade and others [(1978) 3 All ER 280]Wiseman vs. Borneman [(1971) AC 297]Younas Abbas vs. Additional Sessions Judge, Chakwal [PLD 2016 Supreme Court 581]

Summary: Background: The appellants were initially implicated in a substantial embezzlement case involving fraud and transfer of funds in collaboration with bank officials and other private individuals. After a detailed investigation by the Ehtesab Bureau, they were found innocent and discharged under section 169, Cr.P.C. However, private respondents moved applications before Ehtesab Court No.1 to summon the appellants for trial. The trial court accepted the applications and summoned the appellants, prompting this appeal. ----Issues: 1- Whether the trial court can summon co-accused, already discharged by the investigating agency under section 169, Cr.P.C., on the application of the accused. 2- The legality of the trial court's order to summon the appellants during the defense evidence phase based on the application of private respondents. ----Holding/Reasoning/Outcome: --Authority to Summon Discharged Accused: The court emphasized that under section 169, Cr.P.C., the investigating agency can release an accused if there is insufficient evidence. While the court is not bound by the investigating agency's findings, summoning discharged individuals based solely on applications by co-accused is inappropriate. The trial court's decision to summon the appellants lacked judiciousness and did not independently assess the necessity of evidence against the appellants. --Legality of the Trial Court's Order: The court found that the trial court acted beyond its authority by summoning the appellants based on the application of the private respondents. No provision in the Criminal Procedure Code, 1898, supports summoning discharged individuals through applications by co-accused. The proper legal recourse would be to file a private complaint under section 200, Cr.P.C., if there is sufficient evidence against the discharged individuals. The appeal was accepted, and the order dated 29.01.2024, issued by the Ehtesab Court No.1, summoning the appellants, was set aside. The proceedings initiated against the appellants in pursuance of the impugned order were also quashed. ----Citations/Precedents: Section 169, Cr.P.C.: Release of accused when evidence is deficient. Section 200, Cr.P.C.: Procedure for filing private complaints.

Summary: Background: The appellants, previously discharged by the Ehtesab Bureau after a detailed investigation into embezzlement charges, were summoned to face trial based on applications filed by the private respondents. The Ehtesab Court No.1 Muzaffarabad accepted these applications, leading to this appeal. ----Issues: 1- Whether the trial court can summon co-accused who have already been discharged by the investigating agency under section 169, Cr.P.C, based on applications filed by co-accused (private respondents). 2- The legal validity of the Ehtesab Court's order dated 29.01.2024. ----Holding/Reasoning/Outcome: --Summoning of Co-Accused: Section 169, Cr.P.C empowers an investigating agency to release an accused if there is insufficient evidence or reasonable grounds to justify forwarding the accused to a Magistrate. The court noted that while the findings of the investigating agency are not binding on the court, it would be unfair to drag innocent persons into court to face a criminal trial without sufficient evidence. The Ehtesab Court No.1 Muzaffarabad summoned the appellants based on applications filed by the co-accused (private respondents) rather than on its own merit. This approach was found to lack judiciousness, as the court should summon accused persons based on the evidence and not merely on applications from co-accused. --Legal Validity of the Ehtesab Court's Order: The court found that the trial court acted beyond its jurisdiction by summoning the appellants on the application of co-accused without sufficient legal backing or relevant provisions from the Criminal Procedure Code, 1898. The court highlighted that the appropriate remedy, if any, would be to file a private complaint under section 200, Cr.P.C against persons released under section 169, Cr.P.C. The appeal was accepted, and the order dated 29.01.2024 passed by the Ehtesab Court No.1 Muzaffarabad was set aside. The proceedings initiated against the appellants based on the impugned order were quashed. ----Citations/Precedents: Section 169, Cr.P.C Section 200, Cr.P.C Criminal Procedure Code, 1898

Summary: Bail granted ----- (a) Criminal Procedure Code, 1898 – Sections 147, 148, 324, 34, 337-D, 169, 164, 497 – Anti-Terrorism Act, 1997 – Sections 21-L, 6/7 – Bail After Arrest – Rule of Consistency – Further Inquiry —The petitioner sought post-arrest bail in a case registered under various provisions of the Pakistan Penal Code (PPC) and Anti-Terrorism Act, 1997 (ATA) for alleged involvement in an incident of firing and stone-throwing during a procession near Siddiqia Mosque, Gilgit. —The petitioner was not nominated in the FIR and was implicated based on CCTV footage, but no witness identified him from the footage, nor was the location of the CCTV camera disclosed during the investigation. —The alleged extra-judicial confession made by the petitioner was not recorded under Section 164 Cr.P.C. by a Magistrate despite repeated remands. —No evidence indicated that the stone-throwing by the petitioner resulted in any injury. —During the investigation, co-accused Aitizaz Hussain (who allegedly fired a weapon and had a pistol recovered from him) was granted bail, and the petitioner’s case was found to be on better footing. —The petitioner had been in custody since 06.09.2022 and was no longer required for further investigation. —The rule of consistency applied, entitling the petitioner to post-arrest bail. (b) Bail – Grounds for Grant – Prolonged Detention Without Trial —The trial had not yet commenced despite the petitioner being in custody for over a year. —Prolonged detention without trial violates principles of justice, especially when the accused is no longer required for investigation and the prosecution cannot provide a timeline for completing the trial. (c) Judicial Observations – Tentative Findings —The Court clarified that observations made in the bail order were tentative in nature and would not prejudice either party during the trial. —The admissibility and veracity of the CCTV evidence and extra-judicial confession would be determined during the trial. ----- Disposition: Criminal Appeal accepted. Post-arrest bail granted to the petitioner upon furnishing bail bonds of Rs. 200,000 with one surety to the satisfaction of the trial court. Petitioner released if not required in any other case.

Summary: Penal Code (XLV of 1860)-------Ss. 324, 365, 504, 506, 147, 148 & 149---Criminal Procedure Code (V of 1898), S.169---Attempt to commit qatl-i-amd, kidnapping or abducting with intent to secretly andwrongfully confine person, rioting common object---Cross FIRs---Discharge of accusedunder S.169, Cr.P.C., by the Investigating Officer---Issuance of summons by the Trial Courtfor appearance of accused---Petitioner/accused had taken the plea of alibi by producing someevidence---Investigating Officer, discharged accused from the case by exercising his powersunder S.169, Cr.P.C. and mentioned name of accused in Column No.2 of the challan andsubmitted the same in the Trial Court---Trial Court issued summons to accused forappearance---Validity---Cross FIRs had been registered by both the parties against each otherthe same date and time at the same Police Station---Accused and his companions had beennominated with specific role of firing in the FIR registered against accused---InvestigatingOfficer, during investigation, had discharged accused under S.169, Cr.P.C.---Provisions ofS.169, Cr.P.C., empowered the Investigating Officer to discharge any accused, if he wouldcome to the conclusion that sufficient evidence or reasonable ground was not available tojustify forwarding of accused to the Trial Court, but had no power to weigh the defenceevidence---On receipt of challan and after examination of record, if the Trial Court would besatisfied that there existed two sets of evidence from both the sides, the Trial Court hadpowers to weigh both sets of evidence on judicial scale by relying upon the one set and todiscard the other---In the present case, Trial Court after assessing the material available onrecord had rightly summoned the accused placed in Column No.2; because the InvestigatingOfficer by exercising his powers and authority had discharged the petitioner from the case,who had specifically been nominated in the FIR with specific role---Investigating Officer hadmainly based his conclusion of discharge of the accused on the basis of CCTV footageproduced by the accused---Investigating Officer, had no power to weigh the defence evidencequa the prosecution evidence, rather it was the sole discretion of the Trial Court---Investigating Officer while conducting investigation of the matter could not assume thecharge of Trial Judge---Authenticity of the CCTV footage and the supporting documents,were required to be controverted by the complainant party after the acid test of crossexamination---Considering such evidence at such a pre-mature stage would amount to abuseof process of law---Accused could approach the Trial Court for his acquittal from the chargeprior to recording evidence and if the Trial Court found the prosecution evidence deficient, ithad ample powers under S.249-A and S.265-K, Cr.P.C., to acquit the accused---Revisionpetition being devoid of merits, was dismissed, in circumstances.

Summary: (a) Criminal Procedure Code (V of 1898) —- S. 561-A — Maintainability of petition under inherent jurisdiction of High Court — Illegal discharge of accused under S. 169, Cr.P.C. — Scope and jurisdiction of High Court — Powers under S. 561-A, Cr.P.C., are broad and undefined, and can be exercised to prevent abuse of process or to secure the ends of justice — Where Investigating Officer misused powers by discharging nominated accused despite existence of incriminating material on record, High Court was competent to interfere under S. 561-A, Cr.P.C. — Held, inherent powers of High Court could be exercised where administrative actions of investigating agency amount to miscarriage of justice — Petition was therefore maintainable. Shoukat Bus Service, Shahkot v. The State and another 1969 SCMR 325 ref. (b) Criminal Procedure Code (V of 1898) —- S. 169 — Illegal discharge of accused by Investigating Officer — Role of Investigating Officer — Held, action of Investigating Officer in discharging accused under S. 169, Cr.P.C. was arbitrary, perverse and without lawful authority — Accused were nominated in FIR with specific roles involving serious cognizable offences under Ss. 395 & 365, P.P.C., and their pre-arrest bail had earlier been declined by competent court on basis of sufficient material connecting them to commission of offence — Recovery of snatched property (truck) was made during pendency of petition — Investigating Officer, despite this material, relied solely on unverified affidavits asserting plea of alibi — Held, plea of alibi is to be adjudicated at trial and cannot form sole basis for discharge during investigation without proper inquiry — High Court set aside the discharge order and directed reinvestigation and arrest of accused. (c) Constitution of Pakistan —- Art. 199 —- Police Rules, 1934 — Duty of Investigating Officer to follow prescribed procedure — Investigating Officer failed to act in accordance with Police Rules, 1934, while discharging accused — Held, investigating authority was required to conduct impartial investigation and collect evidence from both sides before forming any opinion — Failure to comply with mandatory investigative procedure vitiated discharge order — Investigation done in violation of law and rules cannot be sustained and warrants interference by High Court to ensure fair administration of justice. (d) Bail —- Pre-arrest bail — Principles — Rejection of bail relevant to validity of discharge — Trial Court, while declining pre-arrest bail, held that sufficient material existed to connect accused with offence and that no mala fide could be attributed to complainant or prosecution — High Court held that rejection of pre-arrest bail by Sessions Court was relevant and indicative of the fact that investigating officer’s subsequent discharge was contrary to judicial assessment — Extraordinary relief of bail cannot be extended where sufficient grounds exist for further inquiry — Discharge order in such circumstance held to be unjustified. Ghulam Nabi v. State 2016 PCr.LJ Note 46; 2015 SCMR 1394 ref. Disposition: Petition allowed. Discharge order under S. 169, Cr.P.C. set aside. Investigating Officer directed to arrest and properly investigate accused/respondents in accordance with law and rules and submit challan before competent Court.

Summary: Against dismissal of application U/s 22A for registration of FIR --- (a) Criminal Procedure Code, 1898 (V of 1898) ----Ss. 22-A, 22-B & 154—Registration of FIR—Jurisdiction and duty of Justice of the Peace and Investigating Agency—Principles reiterated. A Justice of the Peace, while exercising powers under Ss. 22-A & 22-B Cr.P.C., must apply a prudent mind to determine whether the complaint discloses the commission of a cognizable offence before directing registration of an FIR. Under S. 154 Cr.P.C., the officer in charge of a police station is legally bound to record information relating to a cognizable offence, yet such registration merely initiates the investigative process and does not curtail the officer’s authority to examine the truth or falsity of the allegations. If the investigation reveals that the accusations are unfounded, the officer may recommend discharge under S. 169 Cr.P.C. and place the accused’s name in Column No. 2 of the report under S. 173 Cr.P.C. However, refusal to record information of a cognizable offence without lawful justification is impermissible. (b) Evidence and appreciation of material ----Registration of FIR—Failure to establish sufficient evidence—Effect. The petitioner alleged that respondent No. 3 received Rs. 1,600,000 for arranging a Cyprus visa for his son but only refunded Rs. 700,000 and subsequently absconded. The FIA’s inquiry, however, found partial recovery (Rs. 799,700 refunded) and insufficient evidence to substantiate the remaining claim. On that basis, the FIA closed the inquiry twice, and the trial court dismissed the application for registration of an FIR. The High Court observed that the petitioner had failed to establish a prima facie case warranting registration of an FIR and upheld the concurrent findings of the authorities. (c) Federal Investigation Agency Act, 1974 ----Scope of FIA’s inquiry powers—Where partial recovery is effected and sufficient evidence lacking—Closure of inquiry justified. The Court held that where the FIA has conducted an inquiry, effected partial recovery, and found the available material inadequate to establish an offence, the closure of proceedings cannot be termed arbitrary or illegal. Disposition Writ petition dismissed. No illegality or infirmity found in the impugned order refusing registration of FIR under S. 22-A Cr.P.C. Citation: Haji Shams ur Rehman v. Director FIA & others, W.P. No. 1154 of 2025, decided on 29 April 2025, per Muhammad Asif, J. – Islamabad High Court.

Summary: Against acceptance of application U/s 22A by Justice of Peace ---- (a) Criminal Procedure Code, 1898 (V of 1898) ----Ss. 22-A, 22-B & 154—Ex-officio Justice of Peace—Jurisdiction—Registration of FIR—Scope and limitation. The powers vested in an Ex-officio Justice of Peace under Ss. 22-A & 22-B, Cr.P.C. are administrative in nature and limited to directing registration of an FIR where information discloses a cognizable offence. Once such information is presented, the police are bound under S. 154, Cr.P.C. to record it without evaluating its truthfulness or merits. The Investigating Officer retains full discretion to investigate the matter and may recommend release of an accused under S. 169, Cr.P.C. if allegations are later found baseless. (b) Criminal law—Registration of multiple FIRs—Same transaction—Bar of duplication. Where multiple FIRs have already been lodged in respect of the same subject matter or transaction, the aggrieved party may not seek repeated directions for registration of fresh FIRs under Ss. 22-A & 22-B, Cr.P.C. The High Court, however, observed that mere pendency of prior cases does not bar registration of a new FIR if the subsequent complaint discloses distinct and independent offences. (c) Contract Act, 1872 (IX of 1872) ----S. 62—Novation of contract—Effect—Compromise agreement—Dishonoured cheques. Execution of a subsequent compromise or settlement between parties amounts to novation under S. 62 of the Contract Act, substituting previous obligations. Failure to honour the compromise or dishonour of cheques issued thereunder may independently constitute an offence under the Penal Code or Negotiable Instruments law. However, such civil arrangements do not extinguish criminal liability where fraudulent intent is alleged. (d) Police Rules, 1934—Duty of police to register complaint—Nature of obligation. Once a cognizable offence is reported, the Officer Incharge of the police station has a statutory duty to record the complaint as an FIR and commence investigation; he cannot refuse registration on any pretext. Reliance placed on Mumtaz Hussain v. Deputy Inspector General (PLD 2002 Lahore 78) and Hazoor Bakhsh v. SSP (PLD 1999 Lahore 417). Disposition Writ Petition dismissed. No illegality or infirmity found in the impugned order of the Ex-officio Justice of Peace directing registration of FIR. Citation: Muhammad Riaz Kayyani v. Inspector General of Police, Islamabad & others, W.P. No. 1528 of 2025, decided on 5 May 2025, per Muhammad Asif, J.—Islamabad High Court.