Summary: Background: The petitioner challenged the constitutionality of specific sections of the Pakistan Penal Code (PPC), namely Sections 306(b)(c), 307(1)(b)(c), 309(1), and 310(1), on the grounds that these provisions, related to Qisas (retaliation) and Diyat (compensation), were against the Injunctions of Islam. Additionally, the petitioner contested Sections 313 and 338 of the PPC and Sections 345(1) & (2A) of the Criminal Procedure Code (Cr.P.C.) on similar grounds. ----Issues: 1- Whether the impugned sections of the PPC and Cr.P.C. are against the Injunctions of Islam. 2- Whether the existing legal provisions adequately address the gravity of offenses like honor killing. 3- Whether the state has the authority to legislate and enact laws for maintaining law and order while adhering to Islamic principles. ----Holding/Reasoning/Outcome The court dismissed the petition, holding that the provisions in question were not against the Injunctions of Islam. The court emphasized that the state has the authority to legislate within the limits prescribed by Islamic law. The court further noted that the existing legal framework, particularly the amended Section 311 PPC, already addresses the concerns raised by the petitioner, especially regarding offenses categorized as "fasad-fil-arz" (mischief on earth). The court found that the petitioner's arguments did not sufficiently demonstrate that the impugned sections violated Islamic principles. ----Citations/Precedents 1997 SCMR 1307 - Sheikh Muhammad Aslam & another Vs. Shauakat Ali alias Shauka 2004 SCMR 236 - Bashir Ahmed Vs. The State 2005 SCMR 599 - Khan Muhammad Vs. The State PLD 1996 SC 1 - Abdul Haque vs. The State and another 2000 SCMR 338 - Abdus Salam vs. The State PLD 2005 SC 252 - Muhammad Abdullah Yousaf and others vs. Miss Nadia Ayub and others PLD 2015 SC 77 - Zahid Rehman vs. The State PLD 1980 FSC 1 - Muhammad Riaz Versus Federal Government PLD 1989 SC 633 - Shariat Appellate Bench of the Supreme Court Judgment on compoundability of Qatl-e-Amd under Section 302 PPC

Summary: (a) Pakistan Penal Code, 1860----Ss. 302(a), 302(b), 302(c), 304, 306, 307 & 308---Qatl-i-amd (intentional murder)---Distinction between Qisas and Ta’zir---Scope and applicability of Section 308, P.P.C.---Authoritative interpretation---Supreme Court clarified that Qisas and Ta’zir are two distinct and mutually exclusive legal regimes under Islamic criminal jurisprudence---Section 308, P.P.C., providing alternate punishment where Qisas is not liable or enforceable, is applicable only in cases where Qisas is otherwise attracted but barred due to specific exceptions under Ss. 306 or 307, P.P.C.---Where murder is proved without fulfilling the evidentiary requirements of S. 304, P.P.C., such case falls within the Ta’zir domain under S. 302(b), P.P.C., and Ss. 306–308, P.P.C., have no application---Confusion arose due to earlier judgments applying S. 308, P.P.C., to Ta’zir cases without assessing whether Qisas was applicable---Court categorically held that benefit under S. 308, P.P.C., is not available in cases where conviction is under S. 302(b), P.P.C. as Ta’zir.(b) Penal Code (XLV of 1860)----S. 306---Qatl-i-amd not liable to Qisas---Categories defined---Provision does not create a distinct offence but provides exceptions to the enforcement of Qisas in cases where the offender is a minor, insane, parent, or where Wali is a direct descendant---Offenders falling under this provision may be exempt from Qisas but may still face punishment under S. 308, P.P.C., provided the case otherwise qualifies as Qisas.(c) Penal Code (XLV of 1860)----S. 308---Punishment in Qatl-i-amd not liable to Qisas---Limited application---Provision operates only where Qisas is applicable but not enforceable due to exceptions in Ss. 306 or 307, P.P.C.---Does not apply to cases where punishment is awarded as Ta’zir under S. 302(b), P.P.C.(d) Case Law---Conflicting Precedents---Resolution by Larger BenchCourt reviewed case law spanning over two decades and resolved the long-standing judicial divergence regarding the applicability of Ss. 306–308, P.P.C.---Judgments in cases such as Khalil-uz-Zaman v. Supreme Appellate Court (PLD 1994 SC 885) and its reversal in Faqir Ullah v. Khalil-uz-Zaman (1999 SCMR 2203) revisited---Court held that the latter judgment by a five-member bench holds greater authoritative value and correctly laid down the law---All subsequent decisions granting benefit of S. 308, P.P.C., in Ta’zir cases were held per incuriam to the extent they ignored or misapplied Faqir Ullah’s ratio.(e) Qanun-e-Shahadat Order, 1984----Art. 17---Tazkiyah-tul-shahood---Precondition for Qisas punishment---Qatl-i-amd punishable as Qisas can only be awarded if confession or competent eyewitness testimony (in accordance with Islamic standards) is provided---Failure to meet these requirements shifts the case to Ta’zir regime under S. 302(b), P.P.C.(f) Constitution of Pakistan, 1973----Art. 203G---Interpretation of Islamic injunctions---Scope of judicial review---Supreme Court clarified that interpretation of Islamic injunctions for the purposes of testing repugnancy lies with the Federal Shariat Court and not with the Supreme Court or High Courts.Disposition:Court conclusively held that provisions of Ss. 306, 307, and 308, P.P.C. apply exclusively to cases of Qisas and are inapplicable to Ta’zir convictions under S. 302(b), P.P.C.---Judicial clarity reaffirmed on the doctrinal separation of Qisas and Ta’zir frameworks in Islamic criminal law.Cited Cases:• Faqir Ullah v. Khalil-uz-Zaman, 1999 SCMR 2203• Iftikhar-ul-Hassan v. Israr Bashir, PLD 2007 SC 111• Muhammad Akram v. The State, 2003 SCMR 855• Ghulam Murtaza v. The State, 2004 SCMR 4• Tauqeer Ahmad Khan v. Zaheer Ahmad, 2009 SCMR 420

Summary: (a) Penal Code (XLV of 1860)- -Ss. 302(b) & 308-Constitution of Pakistan (1973), Art.185(3)-Leave to appeal was granted by Supreme Court to consider; whether observation of High Court to the effect that accused, at the time of occurrence was less than 18 years of age and judgment based thereon was sustainable. (b) Penal Code (XLV of 1860)- -S. 308-Qatl-e-Amd not liable to Qisas-Scope-Provision of S.308 P.P.C. is attracted only in case liable to Qisas in which by virtue of provisions of Ss.306 and 307 P.P.C., the punishment of Qisas cannot be imposed or enforced and not in the cases in which punishment is awarded as Tazir. (c) Penal Code (XLV of 1860)- -Ss. 302 & 308-Re-appraisal of evidence-Age of accused-Determination of-Onus to prove-Accused was convicted by Trial Court and sentenced to imprisonment for life-High Court held the accused to be less than 18 years of age and by exercising powers under the provisions of S.308 P.P.C., reduced the sentence from life imprisonment to seven years of imprisonment as "Tazir"-Validity-Inquiry was conducted by Trial Court regarding age of accused and had found that accused was not minor at the time of commission of offence-Such inquiry conducted by Trial Court culminating into a proper order which was not challenged during trial by accused, was conclusive and final for the determination of age-Plea of minor age of accused was nothing but an after-thought, onus to prove such plea was heavily placed on the shoulders of accused but he failed to discharge the same by producing cogent and convincing evidence-Evidence produced by accused was discrepant and fell short of required standard-Mere assertion of accused that at the time of occurrence he was below the age of 18 years and was entitled to benefit under S.308 P.P.C., without positive attempt on his part to substantiate the same, was of no consequence-Judgment passed by High Court was set aside and that of Trial-Court was restored-Appeal was allowed. Ch. Munir Sadiq, D.P.-G., Punjab for the State.

Summary: (a) Penal Code (XLV of 1860)- -S. 302(b)-Constitution of Pakistan (1973), Art. 185(3)-Presence of witnesses including the complainant in the house of occurrence at the relevant time was quite natural and beyond doubt-Accused had neither denied his presence in his house on the day of occurrence nor offered any explanation as to how and under what circumstances his deceased wife while sleeping with him in a room of his house had sustained injuries with the sharp-edged weapon on the sensitive part of her body-Bare denial of accused of knowledge of occurrence and not offering the required explanation had provided a strong corroboration to the eye-witness account to prove his guilt-Ocular testimony was further corroborated by medical evidence and the recovery of Chhuri at the instance of accused which was found stained with human blood-No direct or circumstantial evidence was available on record to suggest that the accused had acted under sudden provocation-Possibility of exchange of words between the deceased and accused as husband and wife on family affairs would not permit the accused to take such a cruel step of killing his wife-Accused had not even taken any such plea in his defence-No leniency could be given to accused in matter of sentence who on a very petty dispute had committed the murder of an innocent and helpless woman-Leave to appeal, was declined to accused in circumstances. (b) Penal Code (XLV of 1860)- -Ss. 306, 307 & 308-Application and scope-Provisions of Ss.306, 307 & 308, P.P.C. would only attract in the cases of Qatl-i-Amd liable to Qisas under S.302(a), P.P.C. and not in the cases in which sentence for Qatl-i-Amd had been awarded as Tazir under S.302(b) & (c), P.P.C.

Summary: (a) Penal Code (XLV of 1860) - - Ss. 302/149, 307/149 & 148 - Constitution of Pakistan (1973), Art. 185(3)- Leave to appeal was granted by Supreme Court for reappraisal of evidence and to consider whether the Trial Court's judgment convicting the accused on a charge of murder could be reversed by High Court, when such conviction was based on reasonable and manifestly sound grounds supported by the evidence on record, and as to whether the reasons for acquittal given by the High Court for upsetting the same were arbitrary, contrary to the record and were based on conjectures and surmises. (b) Penal Code (XLV of 1860) - - Ss. 302/149, 307/149 & 148 - Interested witness - Appreciation of evidence of such witness-Principles.. If an interested witness claiming to be an eye-witness charges a person with the commission of an offence, the first thing which the Court has to determine is, whether he saw the occurrence and was in a position to identify the accused and secondly whether he should be believed for convicting the offender without corroboration. If the interested witness has charged only one person with the commission of offence or has charged more than one person and the number of persons charged by him appear to be reasonable from the circumstances of the case, then in the absence of anything in the evidence which rendered it unsafe to rely on his evidence, his evidence is to be accepted without corroboration as substitution is a thing of rare occurrence and cannot be assumed readily and he who asserts substitution must lay foundation for it. But if the Court finds that the interested witness has exaggerated the number of accused, the Court will insist for corroboration of his testimony from some additional circumstances in the case. The next question arises, in what manner the corroboration to the testimony of the interested witness is to be sought by the Courts before relying on it for conviction. The corroboration to the testimony of an interested witness need not always be from an independent witness supporting the story put forward by the interested witness. Corroboration may be sought from any circumstance in the case which would satisfy the mind of the Court that the witness has spoken the truth. What would be these circumstances, is not possible to lay down with precision as these would vary from case to case according to the facts and circumstances of each case. Corroboration in the case of an interested witness need not be of the same probative force as in the case of an accomplice. Niaz v. State PLD 1960 SC 387; Nazir v. State PLD 1962 SC 269; Subhan v. Raheem PLD 1994 SC 178 'and Sardar Khan v. State 1998 SCMR 1823 ref. (c) Penal Code (XLV of 1860)- - Ss. 302/149, 307/149 & 148- "Interested witness"-Connotation - Mere friendly relation or relationship of the witness with the deceased or complainant party is no ground to discard his evidence describing him as interested witness. Iqbal alias Bhala v. State 1994 SCMRI ref. (d) Penal Code (XLV of 1860) - - Ss. 302/149, 307/149 & 148 - Appreciation of evidence - Maxim"falsus in uno falses in omnibus", application of. Maxim"falsus in uno falsus in omnibus" has not been accepted by the superior Courts in Pakistan as having universal application. Therefore, it does not, necessarily, follow that where the Court does not accept the evidence of 0 witness against some of the accused in a case, the Court cannot accept his evidence against the other accused. The Court often sifts the grain from the chaff while accepting the evidence of a witness against some of the accused in case and at the same time not relying on his version against other accused in the case. Muhammad Ahmed v. State 1997 SCMR 89 and Khairu v. State 1981 SCMR 1176 ref. (e) Penal Code (XLV of 1860)- - Ss. 302/149; 307/149 & 148 - Constitution of Pakistan (1973), Art. 185-?Appeal against acquittal - Reasons given by High Court for not relying on the testimony of prosecution witnesses, besides being artificial and fanciful, were also the result of gross misreading of evidence on record - Ocular account of the incident furnished by the eye-witnesses was consistent and inspired confidence as they had stood the test of cross-examination fully - Contradictions in the statements of the said witnesses were insignificant and did not contradict essential features of the prosecution case and were natural variations which were bound to happen due to examination of the witnesses after about 13 years of the incident - Though the ocular testimony alone was sufficient for conviction of accused, yet the same was further corroborated by the motive and the medical evidence - Prosecution, thus, had established its case against the accused beyond reasonable doubt - Judgment of High Court acquitting the accused was consequently set aside and that of Trial Court was restored converting the conviction of accused under Ss.302/34 & 307/34, P.P.C.-?Conviction of accused under S.148, P.P.C. was, however, set aside-?Appeals against acquittal of accused by High Court were allowed accordingly. Tariq Sayed v. State PLD 1977 Kar. 235; Muhammad Hassan v. Tariq Saeed PLD 1977 SC 45 1; State v. Habibur Rahman PLD 1983 SC 286; Shah Nawaz and others v. The State PLD 195.9 Kar. 383; Ghulam Sikandar v. Mamraz Khan PLD 1985 SC 11; Muhammad Iqbal v. Abid Hussain 1994 SCMR 1928; Yaqoob Khan v. State 1994 SCMR 672; Niaz v. State PLD 1960 SC 387; Nazir v. State PLD 1962 SC 269; Subhan v. Raheem PLD 1994 SC 178; Sardar Khan v. State 1998 SCMR 1823; lqbal alias Bhala v. State 1994 ISCMR 1; Muhammad Ahmad v. State 1997 SCMR 89; Khairu v. State 1981 SCMR 1176 and Javed Ahmed v. State 1978 SCMR 114 ref. (f) Penal Code (XLV of 1860)- - Ss. 302/149, 307/149 & 148-Appraisal of evidence - No overt act was attributed to accused in the F. I.R. -Accused had not even been assigned any specific role of firing on the deceased or the injured witness in the case by any prosecution witness - Judicial notice could be taken of the tendency among the people to involve more persons related to the accused in the case - Accused were acquitted on benefit of doubt in circumstances. (g) Qanun-e-Shahadat (10 of 1984)- - Art. 132 - Cross-examination - Object of-Principles.? The object of cross-examination is to extract truth from the witness. To achieve this objective, the cross-examination must confine to matters which are relevant. The witness may be questioned to establish his bias, interest, corruption or perjury. The witness may also be questioned to discover his position with reference to the controversy or to shake his credit by drawing his attention to any of his previous inconsistent statement as to relevant facts or to his previous statement containing admissions. So long the cross-examination proceeds on these lines, the Court may allow it to continue. However, it is noticed that of late, a tendency has developed amongst the counsel specially in criminal cases to intimidate and scare away the witnesses through prolonged-cross-examination by asking them irrelevant and misleading questions. It is here that the Court should not remain a silent spectator for the right of cross-examination by a party is neither unlimited nor ubridled. As soon as the Court feels that the right of cross-examination is being abused by a party by asking questions to the witness which are irrelevant and intended only to prolong the cross-examination with the object of intimidating or scaring the witness, the Court should intervene and disallow such cross-examination. It cannot be denied that witnesses in adversary litigation, occupy pivotal position. Without truthful witness, it may well-neigh be impossible for the Courts to reach a correct conclusion in the case. The witnesses, therefore, should be treated with dignity and respect by the Courts in cases. The witness while deposing in cases should feel assured that any attempt by party, against whom he is deposing, to intimate or to humiliate him, will not be allowed by the Court and that he will be Provided full protection against all such attempts. It cannot be denied that reluctance on the part of witnesses to give evidence in cases has been largely due to the rough and undignified treatment meted out to them by the Court and the humiliation and intimidation they suffer at the hands of the counsel for the party against whom they appear to depose in the case. The Court possesses ample power to provide protection to witnesses when confronted with such a situation. (h) Criminal trial- - Witness - Connotation. Salim Sadoon, Additional Advocate-General for the State.

Summary: (a) Penal Code (XLV of 1860)- -Ss. 302 & 308-Constitution of Pakistan (1973), Art. 185(3)' -Leave to appeal was granted by Supreme Court to consider whether charge against accused could be altered from S. 302, P.P.C. to S. 308, P.P.C. (b) Penal Code (XLV of 1860)- -Ss. 308, 306, 307(c) & 302-Applicability of S. 308, P.P.C.-Section 308, P.P.C. can only be invoked when accused is found to be guilty of Qatl-i-Amd but he is not liable to Qisas under S. 306, P.P.C. or the Qisas is not enforceable under cl. (c) of S. 307, P.P.C.-Section 308, P.P.C., even if applicable, cannot be applied until first the accused is found guilty of Qatl-e-Amd, under S.30%P.P.C.-Provisions of S. 308, P.P.C. are to apply through their own force when the case falls under the provisions of S. 306, P.P.C,, or S. 307(c) P.P.C., which are to be read together with S. 302, P.P.C, and not in isolation. (c) Penal Code (XLV of 1860)- -Ss. 302 & 308-Application of S.308, P.P.C.-Accused must first be charged for Qatl-e-Amd under S. 302, P.P.C. and only when such charge 118`i been established, provisions of S. 308, P.P.C. could be applied to the case' Sessions Court had substituted the charge framed under S. 302, P.P.C. with that under S. 308, P.P.C., which was not warranted by law-Case was, consequently, remanded to Sessions Court for taking further action in accordance with law. Altaf Ilahi Sheikh, Deputy Attorney-General for the State.

Summary: (a) Penal Code (XLV of 1860)- - Ss. 148 & 149 - Section 149, P.P.C. being only an enabling provision and not a substantive offence, conviction and sentence of accused thereunder by the Trial Court was misconceived-Conviction of only one of the five accused under S302, P.P.C. and conviction of the remaining four accused under S.307, P.P.C. without the aid of S. 149, P.P.C. showed that neither there was any unlawful assembly nor the accused was a member of such assembly and he, therefore, could not be, convicted under S.148, P.P.C.-Accused was consequently acquitted of both the said charges. (b) Penal Code (XLV of 1860)- - S. 148 - Rioting, armed with deadly weapon - Accused person cannot be convicted under S. 148, P.P.C. unless he is found to be a member of an unlawful assembly using force or violence in prosecution of the common object of such assembly. Shaikh Muhammad Naeem, Advocate for the State. ORDER.

Summary: (a) Criminal Procedure Code (V of 1898)- -S.497/498-Penal Code (XLV of 1860), S. 302/307/34/337-Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)-Bad- -Assessment of material on record- -Trial Court has to analyse the legal worth of material to be produced by the parties including affidavits- -Court, during the hearing of bail application can make tentative assessment of material which is different from and not at equal footing with appeasement of evidence; which is within the ambit of jurisdiction of the Trial Court: -[Evidence]. (b) Criminal Procedure Code (V of 1898)- -S. 497/498-Penal Code (XLV of 1860), S. 302/307/34/337-Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)-Bail-Question of sharing of common interest or object is to be decided by the Trial Court. (c) Criminal Procedure Code (V of 1898)- -Ss. 497 & 498-Bail Guidelines for the Courts. after arrest"and"bail before arrest: From legal angle, it can be said that there is material difference between bail after arrest as contemplated under section 497, Cr.P.C. and bail before arrest under section 498, Cr.P.C. In non-bailable offence, an accused is not to be released on bail by the Court, if there appear reasonable grounds for believing that he has been guilty of offence punishable with death or imprisonment for life or ten years. Of course it is also provided that bail can be granted on exceptional grounds of age, infirmity and sex and also if there are sufficient grounds for further inquiry and also on the ground of statutory delay. As against that under section 498, Cr.P.C. High Court oc Court of Session can grant bail at any stage and this provision is normally used for bail before arrest. In this provision amendment has been made and by Code of Criminal Procedure (Amendment) Act XII of 1976 section 498-A is inserted imposing, restriction on grant of bail before arrest to a person, who does not surrender before the Court or against whom no case is registered. Grant of pre-arrest bail means that accused is exempted from joining the investigation and by not joining the investigation, prosecution case may suffer for want of recovery of incriminating articles and other material, which may be necessary to connect him with commission of alleged crime. The Court has to keep in view all these factors in order to maintain balance between both parties and would be cautious not to give undue advantage to one party over the other at the stage of investigation, Of course there is no cavil about the proposition that the Court has power to grant bail before arrest in an appropriate case, if the Court is satisfied that it is a fit case for grant of such relief within the limits of law as stated above. (d) Criminal Procedure Code (V of 1898).- Iqbalur Rahman v. The State PLD 1974 SC 83; Muhammad Hussain v. Muhammad Anwar Ahmad Khan and others 1975 SCMR 151; Choudhary Muhammad Shafi v. Choudhary Muhammad Anwar Samma and another 1975 SCMR 219; Choudhary Zahoor Illahi v. The State 1981 SCMR 935; Ali Muhammad v. Yamin and another 1981 SCMR 1139; Murad Khan v. Fazal-e subhan PLD 1983 SC 82; Mohib Raziq v. Shah Muhammad and another 1983 SCMR 1130 and MA. Bashiran Bibi v. Nisir Ahmad~ Khan and others PLD 1990 SC 83 ref. (e) Criminal Procedure Code (V of 1898)-» -S. 497(5)-Penal Code (XLV of 1860), S. 302/307/34/337-Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 17(3)- -Constitution of Pakistan (1973), Art. 185(3)- Cancellation of bail-Name of the accused and the role of his having participated in firing assigned to him were mentioned in the promptly lodged F.I.R.-Eye-witnesses who were yet to be examined on oath in the Court had not absolved the accused in their 161, Cr.P.C. statements-Even accused's plea of alibi did not assert that he was not physically present at the spot or near about it at the relevant time-Accused had surrendered before the Sessions Court and applied for bail before arrest after nearly two months-Accused was also alleged to have snatched and carried away pistol from the injured eye-witness-Grant of bail before arrest to the accused in the case with murder charge, was not justified on legal grounds-Petition for leave to appeal was consequently converted into appeal which was allowed and pre-arrest bail granted to accused by High Court was cancelled accordingly. Iqbalur Rahman v. The State PLD 1974 SC 83; Muhammad Hussain v. Muhammad Anwar Ahmad Khan and others 1975 SCMR 151; Choudhary Muhammad Shafi v. Choudhary Muhammad Anwar Samma and another 1975 SCMR 219; Choudhary Zahoor Illahi v. The State 1981 SCMR 935; Ali Muhammad v. Yamin and another 1981 SCMR 1139; Murad Khan v. Fazal-eSubhan PLD 1983 SC 82; Mohib Raziq v. Shah Muhammad and another 1983 SCMR 1130 and Mst: Bashiran Bibi v. Nisar. Ahmad Khan and others PLD 1990 SC 83 ref.. ORDER SAJJAD ALI SHAH, J: -Petitioner, who is complainant and father of deceased in the case, seeks leave to appeal against order dated 16-8-1993 of the High Court of Sindh, Karachi whereby bail before arrest is granted to respondent No.2 Sujawal Khan in the murder case and prayer is made for its cancellation. 2. Briefly stated the facts in the background are, as apparent from the order of the trial Court and other relevant papers included in the, paper-book, that family dispute exists between the parties. Brother of deceased Shafqat Sultan was married to step-sister of respondent No.2 Sujawal Khan and that marriage terminated in divorce. Litigation was pending between the parties arising from question of custody of minor daughter. Earlier complainant had filed F.LR. No. 107/93 at P.S. Jamshed Quarters for offences under sections 452/506/34, P.P.C. and in that case order of pre-arrest bail granted to the accused persons namely (1) Altaf s/o Ayoob, (2) Amar s/o Sarwar and (3) Babar s/o Sarwar, was recalled on 20-5-1993 by the IInd A.S.J. (East), Karachi and it is mentioned in the order of the Court (page 99 of paper book) that there was commotion outside the Court-room and son of complainant came in stripped of clothes and complained that he was manhandled by accused persons in that case and apprehended danger. 3. Incident in this case took place on 22-5-1993 at 10-30 a.m. in the Verandah of new City Court building at Karachi. Complainant, his son Shafqat and two servants namely Mirza Khan and Jehangir Khan had come to the Court in connection with cancellation of bail mentioned above, when they saw (1) Sujawal s/o Akbar, (2) Ayoob s/o Mahmood, (3) Altaf s/o Ayoob, (4) Rana s/o Sarwar from whom last-named accused was armed with a large pistol. Sensing danger, Shafqat took his father inside chamber of ASJ-II (East) and bolted the door from inside. Four accused persons named above, started firing indiscriminately on the door of the chamber from outside and in the result some bullets passed and entered head of Shafqat through his ear, who started bleeding and died. Outside the Chamber, eye-witnesses including Mirza Khan and Jehangir saw all the four accused firing together and when attempt was made to apprehend, they resisted and fired and in consequence some persons were injured including Mirza Khan. After escape of accused persons, Mirza informed that accused persons had snatched away from him revolver belonging to and licensed in the name of complainant. Such F.LR. No. 99/93 was lodged by complainant at P.S. Risala (South) Karachi at 11-40 a.m. on the same day for offence under sections 302, 307/34, P.P.C. and section 337 of Qisas and Diyat Ordinance read with section 17(3) of E.H.O. 4. Respondent No.2 Sujawal Khan moved application for bail before arrest in the Court of III Additional Sessions Judge, Karachi, South. Interim bail was granted on 22-7-1993 but the same was cancelled and the application was dismissed vide order dated 29-7-1993 mainly on the ground of lack of jurisdiction. Respondent No.2 approached High Court for bail before arrest under section 498 read with 561-A, Cr.P.C. Interim bail was granted on 3-8-1993, which was confirmed vide order dated 16-8-1993. In the last mentioned order passed by the High Court, it appears that bail has been granted, impressed by the facts firstly that respondent No.2 is an Advocate and had appeared on behalf of his step-sister Mst. Shamim Akhtar, who is daughter-in-law of complainant in this case and there was litigation between them. Secondly some office-bearers of Karachi Bar Association held Press conference in which false implication of respondent No.2 was alleged and some Advocates had sworn affidavits to that effect. Thirdly in police statements of eye-witnesses Jehangir and Mirza Khan recorded under section 161, Cr.P.C., presence of respondent No.2 at the spot is alleged at the time of incident, but it is not stated specifically that he took active part in the firing though it is alleged that he snatched pistol from Mirza Khan. 6. Second ground mentioned in the order of the High Court is that there was press conference asserting false implication of respondent No.2 in the case and some Advocates had sworn affidavits to that effect. In this connection material available on the record shows that incident took place on 22-5-1993 at 10-30 a.m. in the City Court premises and F.LR. was lodged at P.S. Risala 3 furlongs away at 11-40 a.m. on the same day and the defence plea is that respondent No.2 was not present at the spot at the time of incident but was present at Police Post City Court in the same premises, when firing took place at 10-30 a.m. in which he did not participate. Press conference took place not on 22-5-1993, when incident took place but on 25-5-1993, which was 3 days later. At page 55 of the paper book there is photo copy of press release in which Administration is criticized for creating difficulties in the way of discharge of professional duties of Advocates and in that context it is mentioned that Sujawal Khan Advocate (respondent No.2) has been implicated falsely in a murder case, in which incident took place in the Chamber of Judge and at the relevant time the said Advocate was present at police post in the same premises. 7. In support of assertion of false implication in the case, there are affidavits on the record. At page 33 of the paper book is affidavit of respondent o.2 Sujawal Khan, which is sworn on 3rd August 1993, about 2 months and 10 days after the incident. Affidavits of M/s. Mushtaq Ahmad, Salahuddin Khan, Abdul Azeem and Ghulam Mustafa on the record appear to have been sworn on 28-7-1993. This is material in support of defence plea and this Court would not make any comment on the evidence, which is yet to be produced in the trim Court for the simple reason that it is exclusive function and duty of the trial Court to evaluate the evidence and give finding about truthfulness and reliability of evidence and also whether particular individual is falsely implicated or not. Members of the Bar are officers of the Court and are supposed to assist the Court is arriving at just and correct decision. If members of the Bar want to be witnesses in the case they can do so and there appears to be no legal impediment in their way but law laid down is to be followed in letter and spirit. It is for the trial Court to analyse the legal worth of material to be produced by the parties including affidavits. During the hearing of bail application, the Court cannot make tentative assessment of material, which is P different from and not at equal footing with appraisement of evidence, which is within the ambit of jurisdiction of the trial Court. 8. Third ground mentioned in the order of the High Court for grant of bail is that two eye-witnesses in their police statements have admitted presence of respondent No.2` at the spot but have not said that he participated in the firing. Perusal of police statements fat page 103 of the paper book and onwards) shows that eye-witnesses Mirza Khan and Jehangir Khan have stated in their police statements that accused persons came in the car which was being driven by respondent No.2 and from the co-accused Altaf had Klashnikov and Rana had pistol. After complainant and deceased took refuge in the Chamber of Judge and bolted the door from inside, Sujawal Khan tried to open door and pushed it and then firing was made by Rana and Altaf and when attempt was made to capture, Sujawal Khan resisted and snatched away pistol from Mirza Khan. Under section 161, Cr.P.C. statement of a witness is recorded and reduced in writing by the police officer, which is not signed by the witness and its use is restricted as contemplated under section 162, Cr.P.C. to the extent of contradicting that witness in the Court, when he appears for recording his evidence on oath. Question of sharing of common interest or object is to be decided by the trial Court. On the basis of this material, asp mentioned above, the Court has to make tentative assessment, whether it is a fit case for grant of bail before arrest in a murder case. 9. From legal angle, it can be said that there is material difference) between bail after arrest as contemplated under section 497, Cr.P.C. and bail before arrest under section 498, Cr.P.C. In non-bailable offence, an accused is not to be released on bail by the Court, if there appear reasonable grounds for believing that he has been guilty of offence punishable with death or imprisonment for life or ten years. Of course it is also provided that bail can be granted on exceptional grounds of age, infirmity and sex and also if there are sufficient grounds for further inquiry and also on the ground of statutory delay. As against that under section 498, Cr.P.C. High Court or Court of Session can grant bail at any stage and this provision is normally used for bail before arrest. In this provision amendment has been made and by Code of Criminal Procedure (Amendment) Act XII of 1976 section 498-A is inserted imposing restriction on grant of bail before arrest to a person, who does not surrender before the Court or against whom no case is registered. Grant of pre-arrest bail means that accused is exempted from joining the investigation and by not joining the investigation, prosecution case may suffer for want of recovery of incriminating articles and other material, which may be necessary to connect him with commission of alleged crime. The Court has to keep in view all these factors in order to maintain balance between both parties and would be cautious not to give undue advantage to one party over the other at the stage of investigation. Of course there is no cavil about the proposition that the Court has power to grant bail before arrest in an appropriate case, if the Court is satisfied that is a fit case for grant of such relief within the limits of law also it stated above. 10. Survey of case-law on the subject shows that in the case of Iqbalur Rahman v. The State (PLD 1974 SC 83) the charge was under section 302, P.P.C. and High Court granted bail on the ground of alibi, which was cancelled by this Court on the ground that it was function of the trial Court to ascertain truth or otherwise of plea of alibi and took exception to the observation of the High Court that plea was supported by respectable witnesses belonging to the provincial Civil Service, which amounted to a fording about credibility of plea of alibi. In the case of Muhammad Hussain v. Muhammad Anwar Ahmad Khan and others (1975 SCMR 151) the offences were punishable under sections 302, 307, 149 and 148, P.P.C. and bail granted by the High Court on the plea of alibi supported by affidavits of 20 Advocates showing presence of concerned accused 50 miles away at the time of the incident was not cancelled by this Court on the ground that there were no reasons to come to the conclusion that High Court acted unreasonably or perversely. Third case in the line is Choudhary Muhammad Shaft v. Choudhary Muhammad Anwar Samma and another (1975 SCMR 219) in which it was held by this Court that the case of Iqbalur Rahman (supra) did not spell out absolute bar and plea of alibi was rightly considered by the High Court and no exception was taken to the grant of bail by the High Court on the ground that affidavits were filed by 24 members of the Provincial Assembly asserting that petitioner was in the Assembly at Lahore at the relevant time, when incident took place at Gujrat. 12. In the case of Mohib Raziq v. Shah Muhammad and another (1983. SCMR 113(1) charge was of murder and High Court granted bail before arrest on the ground that two eye-witnesses named in F.I.R. had not come forward to support the case. This Court cancelled the bail as Shah Muhammad was named in F.I.R. as one of the assailants, who had fired and injured the deceased, motive was stated in F.I.R. and fire-arm injuries were supported by postmortem report. Deceased himself dictated F.I, R. which could be used as dying declaration. Police had failed to record 161, CrY.C. statements of eyewitnesses. This Court her observed that interference was called for as High Court failed to exercise discretion in accordance with object or purpose of law regulating grant of pre-arrest bail. 13. In the context of what. is stated above, reference to one more judgment of this Court is necessary. In the case of Mst. Bashiran Bibi v. Nisar Ahmad Khan and others (PLD 199(1 SC 83) provisions of section 497, Cr.P.C. were examined in detail in order to ascertain the scope of further inquiry and it was held that normally this Court does not interfere with orders of the High Court relating to bail matters unless either a provision of law is misconstrued or wrongly applied or the decision is contrary to the principles laid down by the Supreme Court, then it is the Constitutional obligation of this Court to set the matter right. It was further held that mere filing of affidavits by Advocates would not attract the expression"further inquiry" nor would it amount to two versions and evidentiary value of such evidence should be left to be determined by the trial Court. In that case complainant lady was stripped naked, beaten and made to dance by accused persons, who were granted bail on the ground that it was case of further inquiry. During the proceedings offer was made to swear about innocence of accused on Holy Qur'an and in that connection reference was made to the affidavits of certain Advocates. It was f held by this Court that High Court was not right in permitting one accused to take oath in the mosque with regard to the guilt or innocence of all accused persons. It is thus clear that principles of law laid down are same, which are to be applied but since facts of any two criminal cases me not the same and each case is to be decided or for that matter, bail matter in that case is to be heard p and decided keeping in view peculiar facts of that case and for that reason the conclusions may vary. The most important criterion is that it is the mind of the Corm which is to be satisfied that the case under its consideration is a fit case or not for grant of bail in line with guidelines covering legal requirement 14. In the instant case name of respondent No.2 appears in F.I.R. which is lodged promptly without any delay and role is assigned to him that he participated in firing. Eye-witnesses are yet to be examined on oath in the Court for recording evidence. In their 161, Cr.P.C. statements they have not E absolved respondent No.2, nor they have said that he was not present. For tentative assessment it would suffice to say that even plea of alibi does not assert that he was not physically present at the spot or near about it at the relevant time. Contention raised on behalf of the complainant is worth consideration that respondent No.2 surrendered before the Sessions Court and applied for bail before arrest after nearly two months. It is alleged that respondent No.2 snatched and carried away pistol from Mirza Khan. In such circumstances grant of bail before arrest in a case with murder charge is not justified on legal grounds and is not in accord with guidelines reflected in the case-law mentioned above. For reasons aforementioned leave is granted 'and the petition is converted into appeal, with is allowed and in the result impugned order of bail is set aside. Let the law take its own course. Comments' made above while making tentative assessment of material are not intended to influence the mind of the trial Court one way or the other and it is open to that Court to act strictly according to law, if any steps are taken to seek relief within the bounds of law after arrest or at the time of appeasement of evidence. N.H.Q./S-798/S Bail cancelled

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.