Summary: (a) Qanun-e-Shahadat Order (10 of 1984)---- ----Electronic evidence---Audio/video recording---Admissibility---Authentication and proof of genuineness---Supreme Court held that electronic evidence may be admissible under Qanun-e-Shahadat Order, 1984 and Electronic Transactions Ordinance, 2002, and may be treated as primary evidence, but its admissibility is subject to strict conditions---Source, origin and manner of obtaining recording must be proved, and expert confirmation must establish that recording was not tampered with, altered or doctored---No audio tape or video can be relied upon by Court unless proved genuine and free from tampering---In present case, prosecution primarily relied upon clandestine audio recording allegedly containing conversation between accused persons regarding payment of bribe, but no additional independent witness or incriminating evidence was available. Cited Cases: • Ishtiaq Ahmed Mirza v. Federation of Pakistan PLD 2019 SC 675 • Ahmed Omar Sheikh v. State 2021 SCMR 873 (b) Qanun-e-Shahadat Order (10 of 1984) / Electronic Transactions Ordinance (LI of 2002)---- ----Secret audio/video recording---Recording made to trap, humiliate, scandalize, extort or procure evidence---Lawfulness and admissibility---Supreme Court held that recording of a conversation in which recorder is participant may generally not constitute illegal wiretapping, even if other person is unaware; however, recording conversation between two other persons is illegal---Audio recordings as evidence must be relevant, duly obtained and must not infringe rights of parties---Secret recordings intended to humiliate, disgrace, scandalize, outrage, insult, trap or extort an accused or any individual are not to be treated as lawful basis for conviction---Illegality of complainant cannot be used as solitary foundation for convicting accused. (c) Prevention of Electronic Crimes Act (XL of 2016)---- ----S. 23---Pakistan Penal Code (XLV of 1860), S. 389---Unauthorized surveillance---Capturing image or voice with dishonest intent---Secretly collecting information about private conversation without consent for extortion or illegal purpose amounts to criminal conduct---PECA recognizes unauthorized surveillance, and S.23 criminalizes unauthorized taking, capturing or transmission of a person’s image or voice with dishonest intent---There is a distinction between routine recordings made in ordinary course of duty and recordings made for purpose of laying a trap to procure evidence---Latter category is punishable and cannot be given judicial legitimacy. Cited Cases: • Hakim Ali Bhatti v. Abdul Hakim 1986 CLC 1784 • Ishtiaq Ahmed Mirza v. Federation of Pakistan PLD 2019 SC 675 (d) Constitution of Pakistan---- ----Art. 14---Dignity of man and privacy of home---Secret recording of private conversation---Constitutional violation---Supreme Court held that inviolability of dignity of man and privacy of home are guaranteed under Art.14 of Constitution---Recording citizen’s conversation secretly and using it as a weapon in judicial proceedings directly violates constitutional guarantee of privacy and dignity---Such practice reduces society to a surveillance theatre where end is treated as justifying means---Where complainant resorts to unlawful surveillance, he may transform from victim into offender, while person against whom such audio/video is leaked may be victim rather than accused. Cited Case: • Hamna Qaiser v. Chairman PEMRA 2024 MLD 243 (e) Islamic jurisprudence---- ----Right of privacy---Prohibition against spying---Surah Al-Hujurat 49:12---Supreme Court observed that right of privacy is firmly embedded in Islamic jurisprudence and constitutional thought---Holy Qur’an commands “Do not spy”---Inviolability of home and prohibition against unwarranted surveillance are foundational principles---Incident from era of Hazrat Umar ibn al-Khattab (RA) was referred to, where even suspected illegality did not justify spying, entering without permission or violating sanctity of home---Privacy is a protected right and cannot be curtailed except strictly in accordance with law. (f) Criminal trial---- ----Electronic/CCTV evidence---Doctrine of silent witness---Distinction between routine CCTV footage and clandestine private recording---Supreme Court distinguished the present case from Zahir Jaffer case, wherein CCTV footage was obtained from permanently installed security system operating routinely at place of occurrence, extracted from original DVR/hard disk by law enforcement, forensically examined by Punjab Forensic Science Agency, and certified to be unedited with affirmative facial recognition---Such evidence was forensically verified, authenticated and primary---In present case, none of those features existed; it was not routine stationary CCTV performing ordinary security function, but secret private recording of conversation by an individual with dishonest intent, sought to be converted into basis for conviction. Cited Case: • Zahir Jaffer 2025 SCP 220 (g) Criminal trial---- ----Private surveillance---Warrantless surveillance by citizens---Judicial legitimacy refused---Supreme Court held that permitting conviction on basis of such secretly procured private recordings would amount to granting general licence to citizens to conduct warrantless surveillance of fellow citizens---Such practice would empower every citizen to act as prosecutor, technician and witness while bypassing constitutional safeguards and investigative procedures---Private surveillance violating law, Islamic principles and fundamental rights cannot be justified or clothed with judicial legitimacy. (h) Criminal appeal against acquittal---- ----Double presumption of innocence---Interference with acquittal---Scope---Trial Court acquitted respondents of offences under Ss.161, 420 and 409, P.P.C. read with S.5 of Prevention of Corruption Act, 1947, and High Court upheld acquittal---Supreme Court found no illegality, misreading or non-reading of evidence in impugned judgments---Acquitted accused enjoys double presumption of innocence: first before trial and second after acquittal---Acquittal cannot be interfered with except for strong and exceptional reasons, which were absent in the case. Disposition: Criminal Petition for leave to appeal was dismissed and leave was refused; acquittal of respondents No.1 and 2 recorded by Trial Court and upheld by Lahore High Court was maintained.

Summary: (a) Penal Code (XLV of 1860)- -S. 409-Prevention of Corruption Act (II of 1947), S. 5(2)-Pakistan Criminal Law (Amendment) Act (XL of 1958), Ss. 4 & 5-Criminal Procedure Code (V of 1898), Ss. 179, 181 (2) & 439-Criminal breach of trust-Place of trial-Principle-Accused persons were public servants who were alleged to have issued illegal Computerized National Identity Cards and passports to foreign nations at place-Q-Case was investigated at place-I-and Special Court at place-I-had also assumed the jurisdiction-Validity-Offence of-criminal breach of trust-can be tried by the Court within whose local limits of jurisdiction the offence is committed by a public servant as well as the Court where any part of the property which is the subject of the offence is received or retained by accused persons-Offence of-criminal breach of trust-allegedly committed by accused persons as public servants occurred in another province, whereas there was no allegation that the accused persons received or retained in place-I-any part of the property which was subject of alleged offence-Special Judge at place-I-could not try accused persons for the offence under S.409, P.P.C. unless he could try them for any of the other alleged offences by virtue of S.5 (7) of Pakistan Criminal Law (Amendment) Act, 1958-Special Judge at place-I-did not have territorial jurisdiction to try the case registered against accused persons-High Court set aside the orders passed by Special Judge and applications filed under S.4 of Pakistan Criminal Law (Amendment) Act, 1958 read with S.177, Cr.P.C. were allowed-High Court directed the Special Judge to return FIRs and challans submitted by FIA to the prosecution or concerned investigating officer for the purpose of submission before Court of competent jurisdiction-Revision was allowed in circumstances. Rao Fahd Ali Khan v. The State and another 2014 PCr.LJ 1071; Faqir Khan v. Bakhtawar Jan and 4 others 2019 PCr.LJ 1558; Mazhar Hussain v. The State and 2 others PLD 2010 Lah. 60; Total Parco Pakistan Limited through Authorized Officer v. Justice of Peace/Additional Sessions Judge (West), Islamabad and 2 others 2021 YLR 1436; Faqir Khan v. Bakhtawar Jan and 4 others 2019 PCr.LJ 1558; Basharat Iqbal v. The State and another 1993 SCMR 1901; Muhammad Sultan v. Muhammad Raza and others 2020 SCMR 1200; Mirza Ali Khan v. Sessions Judge, Peshawar, 2002 SCMR 1461; Abdul Sattar Baig v. The State 2014 PCr.LJ 983; Riasat Ali v. The State 2024 PCr.LJ 1511; Muhammad Aslam v. The State PLD 1962 Sindh 499; Abdullah v. Raja Muhammad Hashim PLD 1962 Kar. 793; Ghulam Murtaza Khan v. Abdul Rahman 1980 PCr.LJ 594; Muhammad Younas Malik v. Drug Court of Sindh 1987 MLD 1619; K. Bhaskaran v. Sankaran Vaidhyan Balan and others AIR 1999 SC 3762; Chowdhry Riaz Ahmed v. The State PLD 1979 Sindh 119; Muhammad Ehsan Khan v. The State 1968 PCr.LJ 759; Shoukat Ali v. Muhammad Ismail 2022 PCr.LJ.N. 60; Abdul Aziz Fazlani v. Abdul Razzaq 2022 YLR Note 199; R.K. Vijayasarathy v. Sudha Seetharam 2019 INSC 216; Muhammad Rashid v. The State PLD 1960 SC 168; Makhdoom Ahmed alias Zameer Ahmad v. Noor Ahmed 2003 YLR 2335; Ishwarlal Girdharilal Parekh v. State of Maharashtra 1969 PTD 904; Syed Fayyaz Hussain Zaidi v. S.H.O. Police Station Chehliyak, Multan 2004 MLD 1403 and Muhammad Salah-ud-Din v. NADRA PLD 2012 Lah. 378 rel. (b) Penal Code (XLV of 1860)- -Ss. 419 & 420-Criminal Procedure Code (V of 1898), S. 179-Cheating-Place of trial-Principle-Accused persons were alleged to have issued illegal Computerized National Identity Cards and passports to foreign nations at place-Q-Case was investigated at place-I-and Special Court at place-I-had also assumed the jurisdiction as cards and passports were printed at place-I-Validity-Printing was to do with creation of the property, which was delivered by the person deceived as a consequence of the deception and such creation was not an ingredient of the offences under Ss.419 and 420, P.P.C.-It was inconsequential where printing of CNICs took place for the purpose of S.179, Cr.P.C.-Printing of CNICs was at the best a mere result of alleged approval granted by accused persons (which might be practically necessary for the consequences of alleged offences to ensue) but was not an essential ingredient for the completion of offences under S.419 or 420, P.P.C. by definition whereas S.179, Cr.P.C. applied to those offences which by their very definition consisted of an act and its consequences. Muhammad Abdul Rauf Siddiqui v. S.H.O. Police Station, Gulberg, Karachi 2013 PCr.LJ 70 rel. Complainant in person.

Summary: Acquittal ---- (a) Penal Code (XLV of 1860) & Prevention of Corruption Act, 1947 ----Ss. 409, 420, 468, 471 & 34, PPC; S. 5(2), PCA—Embezzlement of departmental funds—Standard of proof—Benefit of doubt. Convictions of postal officials for alleged embezzlement of Rs.14,931,650/- set aside—On appraisal of record, prosecution failed to prove guilt beyond reasonable doubt; material infirmities and contradictions in the inquiry and investigation rendered the case doubtful—Benefit of doubt extended; acquittal recorded. (b) Criminal trial—Best evidence rule—Withholding of vital evidence—Adverse inference. Department and FIA failed to produce CCTV footage from the treasury room; inquiry officers admitted footage was not obtained or made part of record, and investigating officer neither seized the system nor recorded statements to prove it was inoperative—Non-production of the best available evidence undermined the prosecution case and invited adverse inference. (c) Departmental proceedings—Procedural irregularities—Denial of fair opportunity. Fact-finding inquiry initiated 2–3 months after the incident; witnesses examined in the absence of accused; no statement of allegations served; accused were not allowed to cross-examine witnesses; inquiry members unable to identify governing rules in Post Office Manual—Such irregularities eroded the probative worth of the departmental findings relied upon for criminal prosecution. (d) Evidence—Missing necessary accused—Break in chain of liability. Record showed MR handed Rs.15,000,000/- to Javed Akhtar Bhatti (Deputy Senior Postmaster) for deposit in SBP; preliminary report also noted non-deposit by JAB on relevant dates—Yet JAB was neither arrayed as an accused nor effectively investigated; even his alleged confessional statement was not brought on record—Failure to investigate/arraign the pivotal custodian of the cash created a decisive gap in prosecution’s chain. (e) Documentary/arithmetical anomalies—Cash verification and forms. Physical cash verification was conducted after two months; the treasury form contained facially erroneous denominations (showing “five lac” notes of Rs.5,000/- leading to an impossible total), further casting doubt on the reliability of the accounting trail. (f) Circumstantial and corroborative evidence—Personal bank accounts. Bank managers’ statements reflected negligible balances in accuseds’ personal accounts; absence of unexplained accretions weakened the allegation of personal appropriation of the missing funds. (g) Appellate review—Concurrent findings—Non-reading/misreading. Despite concurrent convictions by the Trial Court and High Court, Supreme Court interfered where critical evidence was ignored, vital witnesses/evidence were withheld, and material irregularities existed—Convictions could not stand on such tainted footing. Disposition—Both Criminal Petitions allowed; convictions and sentences recorded by the Trial Court (27.06.2019) and affirmed by the High Court (23.01.2023) set aside; petitioners acquitted by extending benefit of doubt.

Summary: (a) Criminal Procedure Code (V of 1898)--- ----S. 497(1), third proviso---Penal Code (XLV of 1860), Ss. 409, 419, 420, 468, 471, 472, 473, 109 & 34---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust by public servant, cheating by personation, cheating and dishonestly inducing someone to deliver property, forgery for the purpose of cheating, use of a forged document as genuine, counterfeit seals, making or possessing a counterfeit seal or instrument with the intent to commit forgery, abetment, common intention, criminal misconduct---Statutory delay in conclusion of trial---Accused sought their bail on the ground of delay in conclusion of trial---Held: Allegations against the accused-petitioners were that they being Administrators and Officers of the Cooperative Societies Department, in active connivance with a land grabber illegally usurped the Society, misplaced original records, filed fake memberships before Court, engineered elections in September 2020 and installed a dummy management, thereafter, bogus plot files were prepared and sold to the public, crime proceeds of approx. Rs.130 million were laundered through various accounts and two properties were purchased in an other Society---In the instant case, the applicants were charged with offences punishable under Ss.409/419/420/ 471/472/473/109/34, P.P.C. read with S.5(2) PCA-II, 1947, which were not punishable up to death, hence their bail plea was covered under part(a) of the third proviso to S.497(1), Cr.P.C.---Said provision provided that if an accused remained detained exceeding one year without conclusion of trial, the law mandated his release on bail---For the purposes of commencement of time under the third proviso to S.497(1), Cr.P.C., period for the conclusion of the trial was to be calculated from the date of the arrest/detention of the accused and it was of little importance as to when the charge was framed and the trial commenced---In the absence of any material to the effect that the applicants were previously convicted, on a tentative assessment, the applicants did not appear to fall under the parameters of hardened, desperate or dangerous criminals---Certified copies of diaries of the Trial Court as available on record also clearly depicted that delay had not been caused in trial due to act or omission from the side of the applicant/accused---Both the applicants were arrested on 16.05.2024 and had remained detained since past more than one year and three months---Prosecutor informed that there were total number of 26 accused involved in this case out of which 6 had absconded whereas 18 accused persons had already been granted bails on different grounds and only present two applicants were presently behind bars---Prosecutor further informed about the position of the trial that 'Charge' had not been framed as yet, whereas the Court was presently vacant---In these circumstances, it appeared that the trial had not even commenced as yet, and the same was not likely to conclude in near future---On a tentative assessment, a case for grant of bail on the ground of statutory delay in the conclusion of trial was prima facie made out within the ambit of S.497, Cr.P.C.---Bail application was allowed, in circumstances. Nadeem Samson v. the state and others PLD 2022 SC 142; Shakeel Shah v. The State and others 2022 SCMR 1; Muhammad Usman v. The State and another 2024 SCMR 28; Nazir Hussain v. Zia-ul-Haq and others 1983 SCMR 72; Moundar and others v. The State PLD 1990 SC 934; Sher Ali alias Sheri v. The State 1998 SCMR 190; Akhtar Abbas v. State PLD 1982 SC 424; Abdul Rashid v. The State 1998 SCMR 897; Zahid Hussain Shah v. The State PLD 1995 SC 49; Muhammad Siddique v. Muhammad Behram and another 1998 PCr.LJ 358; Allah Wasaya v. The State and others PLD 2022 SC 541; Shahzad Ahmed v. The State through FIA Islamabad 2010 SCMR 1221; Shameel Ahmed v. The State 2009 SCMR 174; Riaz Ahmed and others v. Federation of Pakistan through Chairman, National Accountability Bureau NAB and others 2021 PCr.LJ 1182 and Tallat Ishaq v. National Accountability Bureau through Chairman PLD 2019 SC 112 rel. (b) Criminal Procedure Code (V of 1898)--- ----S. 497---Bail order---Observations of the Court---Scope---Observations made in bail order being tentative in nature, should not influence the Trial Court to independently adjudicate the case on its own merits. Nisar Ahmed Tarar for Applicants (in Criminal Bail Application No. 1514 of 2025). Saad Fayaz for Applicant (in Criminal Bail Application No. 1519 of 2025). Muhammad Najeeb Jamali for the Complainant (in Criminal Bail Applications Nos. 1514 and 1519 of 2025). Muhammad Ahmed, Assistant Attorney General for the State. Date of hearing: 21st August, 2025. Muhammad Hasan (Akber), J .--- Through this single order, both the subject bail applications are being decided which have been filed against the common order dated 02.06.2025 passed by learned Special Judge, `(Central-II), Karachi in FIR No.16/2024, registered under Sections 409/419/420/468/471/472/473/109/34 P.P.C read with Section 5(2) PCA-II, 1947 at Police Station F.I.A ACC, Karachi, whereby post a risk bill to both the applicants has been rejected.

Summary: (a) Criminal Procedure Code (V of 1898)--- ----S.497---Penal Code (XLV of 1860), Ss. 409, 468, 471, 420, 161, 465, 109 & 34---Prevention of Corruption Act (II of 1947), S. 5---Criminal breach of trust by public servant, cheating and dishonestly inducing someone to deliver property, forgery for valuable security, use of a forged document as genuine, criminal breach of trust by public servant, public servant accepting any gratification other than legal remuneration, offence of forgery, abetment, common intention, criminal misconduct---Bail, grant of---Further inquiry---Rule of consistency---Allegations against the accused-petitioner were that he through forged document and with the connivance of Naib Tehsildar sold out land measuring 1410 kanals including common village lands and public grazing land fraudulently---Admittedly, the accused/petitioner was not a Government servant hence S.409, P.P.C, and S.5(2) of Prevention of Corruption Act, 1947 were not applicable to the extent of the petitioner in the present case---Co-accused, who were arrested by the police in the instant case, had already been granted post arrest bail by the Chief Court and another nominated accused, the then Naib Tehsildar was on interim bail, as such the present petitioner became entitled for concession of bail on the basis of rule of consistency---Moreover, there was unexplained delay of one year and two months in lodging of the FIR and the documentary evidence available on the prosecution file suggested the matter being of private transaction---Piece of land regarding which the transaction was alleged was not Government land as per revenue record, rather the same was recorded as Jagir of Raja's of the area in the revenue documents---Investigation in the matter to the extent of the present petitioner was completed and the petitioner was behind bars without any trial in the case---Nothing was available on case file to prove the entrustment of the petitioner for the offence of criminal breach of trust, hence, the application of S.409, P.P.C., in the instant matter required further inquiry to the extent of present petitioner---Other sections did not fall under the prohibitory clause of S.497,Cr.P.C.---Petitioner was local habitant of the area and the prosecution had not taken the plea of abscondance or tampering with the evidence by the accused, as such in absence of any allegation of abscondance or tempering with the prosecution evidence by the petitioner, bail was not to be withheld as punishment, because the accused/ petitioner would face the sentence, if ultimately convicted by the Trial Court at the time of conclusion of the trial---Bail petition was allowed, in circumstances. (b) Criminal Procedure Code (V of 1898)--- ----S. 497---Bail---Tentative assessment---Scope---Findings made in bail order are tentative in nature and the Trial Court needs not be influenced by them in any way. Abdul Karim, Ammar Sadib and Tariq Shah for Petitioner. Faqeer Shah Special Prosecutor for Anti-Corruption Department GB for the State. Date of hearing: 13th February, 2025.

Summary: (a) Companies Act (XIX of 2017)--- ----Ss.476, 477 & 497---Criminal Procedure Code (V of 1898), Ss. 154 & 561-A---Constitution of Pakistan, Art. 199---Penal Code (XLV of 1860), Ss. 419, 420, 468, 471, 408 & 409---Quashing of FIR---Constitutional jurisdiction of High Court---Scope---Petitioners/accused sought quashing of FIR by invoking constitutional jurisdiction of the High Court---Held: Allegations against the petitioners were that they being coordinator and servant of a registered company while being hand in glove with each other prepared fake and fictitious rent deed and wrongfully obtained possession of the company's outlets along with wrongful dispossession of the servants of the company, thus cheated the company---When the company was a registered one and completely came within the four corners of Companies Act, 2017 ('the Act') the best course for the company was to move a complaint as required under S. 477 of the Act and not to move an application before the SHO for registration of a criminal case against the petitioners---When the law provides a mechanism for doing a thing in a particular manner, then it must be done in that way and not otherwise---Section 476 of Companies Act, 2017, provides cognizance to be taken in the case of registered companies while S. 477 provided the way of making a complaint for such offences whereas S. 497 provides the penalty /punishment for the offences committed---Section 476 of the Companies Act, being non obstante clause which excludes other provisions of the general law and full mechanism has been provided while taking the cognizance as provided under S. 497 of the Act, which is also a scheduled offence, provided in Eighth Schedule of the Act---Thus, the contents of FIR fully constituted an offence under S. 497 of the Companies Act, hence, lodging of the FIR by the local police was without any competence and was patently illegal on the face of record---Constitutional petition was allowed, accordingly. Syed Mushahid Shah and others v. Federal Investigating Agency and others 2017 SCMR 1218; 2013 SCMR 85 and FIA through Director General FIA and others v. Syed Hamid Ali Shah and others PLD 2023 SC 265 rel. (b) Interpretation of statutes--- ----General and special law---Applicability---Wherever there is a special and general law applicable to a certain matter, the special law will prevail. Muhammad Iqbal others v. Nasrullah 2023 SCMR 273 and Safi-ud-Din Kazi v. Pranab Chandra Roy Choudhary PLD 1950 Dacca 37 rel. Waheed Jan Muhammad for Petitioner. Shoaib Ali, Assistant Advocate General for the State. Malik Asif Ali for Respondent No.2. Date of hearing: 12th February, 2025.

Summary: Penal Code (XLV of 1860)--- ----S. 409---Prevention of Corruption Act (II of 1947), S. 5(2)---Constitution of Pakistan, Art. 10-A---Criminal breach of trust by public servant, criminal misconduct---Appreciation of evidence---Fair and meaningful opportunity to cross-examine witnesses not provided---Fair trial and due process---De-novo trial---Appellant was charged for committing misappropriation of 4,958 bags of wheat and causing loss of Rs. 6,259,475/= to the Government exchequer---Trial Court recorded the evidence of Circle Officer/complainant, however, the cross-examination of the said witness was initially marked as "reserved."---Subsequently, an Advocate cross-examined the said witness, however, his wakalatnama was not found in the entire case file---Furthermore, the Investigating Officer was cross-examined by another counsel and only a single question was put to him---Similar situation was observed in the case of the third prosecution witness, which demonstrably indicated that the appellant was not afforded a fair and meaningful opportunity to cross-examine the witnesses---Such denial of a fundamental right constituted a manifest violation of Art. 10-A of the Constitution of Pakistan, which guaranteed the right to a fair trial and due process---Evidence recorded under such circumstances holds no legal sanctity or evidentiary value, as a conviction could not safely be based on such defective proceedings, particularly where the credibility of the witnesses remained untested on the touchstone of cross-examination---Appeal was allowed by setting aside the impugned judgment and the case was remanded to the Trial Court for the purpose of conducting a "de novo" trial---High Court directed that the Trial Court shall recommence proceedings from the stage of recording evidence, including examination-in-chief and cross-examination of all three prosecution witnesses, that the Trial Court shall to ensure that the appellant was afforded a fair and meaningful opportunity engage a counsel of his own choice and cross-examination of the witnesses was to be conducted in the presence of the defence advocate---Order accordingly. Rajab Ali v. The State 2019 MLD 1713; Tamour Shah v. The State 2001 P.Cr.LJ 1507; Abdul Ghafoor v. The State 2011 SCMR 23; Shafique Ahmed alias Shahjee v. The State PLD 2006 Karachi 377; Syed Waris Khan v. The State 2018 MLD 422; Raja Basharat Ali v. The State 1986 PCr.LJ 1558; Dr. Sher Afghan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813; Muhammad Uris v. The State 1990 MLD 1583 and Abdul Rashid Nasir and others v. The State 2009 SCMR 517 ref. Abdul Ghafoor and others v. The State 2011 SCMR 23 rel. A.R. Faruq Pirzada and Agha Faraz Khan for Appellant. Khalil Ahmed Maitlo, Deputy Prosecutor General for the State. Date of hearing: 6th February, 2025. Judgment Riazat Ali Sahar, J .--- This order dispose off the Jail Appeal preferred by the appellant, Irshad Ali Kalhoro, challenging the impugned judgment dated 11-01-2023, rendered by the learned Special Judge, Anti-Corruption (Provincial), Sukkur Division at Sukkur, in Special Case No. 26 of 2010, arising out of Crime No. 04/2008, registered under Section 409, P.P.C. read with Section 5(2) of Act II of 1947 at Police Station, ACE Khairpur. By virtue of the impugned judgment, the appellant has been convicted under Section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947) and sentenced to rigorous imprisonment (R.I.) for a term of five years, along with the imposition of a fine equivalent to the misappropriated government wheat, amounting to Rs.2,000,000/- (Twenty Lakh Rupees). In the event of default in the payment of the fine, the appellant shall undergo an additional imprisonment of one year. Furthermore, the appellant has also been convicted under Section 409, P.P.C. and has been sentenced to rigorous imprisonment (R.I.) for four years. Additionally, a fine of Rs. 50,000/- (Fifty Thousand Rupees) has been imposed upon him, and in default of payment thereof, he shall suffer simple imprisonment (S.I.) for a period of three months. It is further directed that both sentences shall run concurrently, and the benefit of Section 382-B, Cr.P.C. shall be extended in favour of the appellant. 2. Precisely, the case of the prosecution is that Himath Ali Chandio, Circle Officer, Anti-Corruption Establishment, Khairpur, registered an FIR on behalf of the State with the approval of the competent authority, ACC-II, Khairpur, following a meeting convened on 04-03-2010, based on a written report submitted by the District Food Controller, Khairpur. The allegations levelled against the accused, Irshad Ali Kalhoro, who was serving as Food Supervisor and Incharge of the Wheat Procurement Centre, Fakirabad, pertain to the misappropriation of 4,958 bags of government wheat during the wheat crop season of 2006-2007. It is asserted that the accused, by misusing his official authority, caused a wrongful loss of Rs. 6,259,475/- to the government exchequer while securing an unlawful gain for himself. Consequently, the accused, Irshad Ali Kalhoro, is alleged to have committed the offence, and therefore, the FIR was duly lodged against him on behalf of the State. 3. The police after completing investigation submitted challan of the case and the learned trial Court after observing legal formalities framed the charge to which he pleaded not guilty and claimed trial. 4. To substantiate the charge, the prosecution examined the complainant, PW-1/Investigating Officer Himath Ali Chandio, at Ex.5, PW-2 Sikandar Ali Jalbani at Ex.6, and PW-3 Mohbat Khan Korai at Ex.7. During their examination, they produced the relevant documentary evidence in support of the case of the prosecution. Subsequently, the learned Assistant Prosecutor General (APG) closed the case of the prosecution. Upon the completion of the evidence of the prosecution, the learned trial Court recorded the statement of the appellant under Section 342, Cr.P.C., wherein he denied the allegations levelled against him and asserted his innocence. 5. The learned trial Court after hearing the arguments of learned APG, appellant and appraising the evidence passed impugned judgment. 6. At the very outset, the learned Counsel for the appellant contended that the impugned judgment, passed by the learned trial Court, is contrary to the norms of criminal administration of justice and is legally unsustainable. He asserted that the appellant was deprived of his valuable right to cross-examine the prosecution witnesses through his Counsel, which amounts to a serious violation of due process. On this ground, he prayed for the setting aside of the impugned judgment and the remand of the case to the trial Court to afford the appellant an opportunity to engage a Counsel of his own choice and to cross-examine the witnesses. The learned Counsel further argued that, as per the contents of the FIR, the case was registered on the written report of the District Food Controller, Khairpur (DFC). However, despite being a star witness, the said DFC was neither cited as a prosecution witness nor subjected to cross-examination during the trial. He contended that the non-examination of such a pivotal witness constitutes an inherent defect in the prosecution's case, which is legally unjustifiable. Additionally, he submitted that during the wheat season of 2006-2007, there were no outstanding arrears of the Food Department against the appellant. In this regard, a "No Dues Certificate" issued by the District Food Controller, Khairpur, was duly placed on record by the appellant along with his statement recorded under Section 342, Cr.P.C. before the trial Court. However, the learned trial Court failed to consider this crucial document while rendering the judgment. The learned Counsel also referred to the testimony of PW-03 Mohbat Khan, who categorically stated during the trial that no amount was outstanding against the appellant. Furthermore, during cross-examination, PW-03 explicitly deposed that neither any government wheat bag nor any cash was outstanding against the accused. In light of these material discrepancies, he contended that defective and unreliable evidence cannot be made the basis for conviction. Consequently, the learned Counsel submitted that it would be just and appropriate to remand the case to the trial Court with directions to conduct a "de novo" trial, commencing from the stage of recording evidence, including examination-in-chief and cross-examination of all witnesses. In support of his contentions, he placed reliance upon the cases reported as Rajab Ali v. The State (2019 MLD 1713), Tamour Shah v. The State (2001 PCr.LJ 1507), Abdul Ghafoor v. The State (2011 SCMR 23), Shafique Ahmed alias Shahjee v. The State (PLD 2006 Karachi 377), Syed Waris Khan v. The State (2018 MLD 422), Raja Basharat Ali v. The State (1986 PCr.LJ 1558), Dr. Sher Afghan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813), Muhammad Uris v. The State (1990 MLD 1583) and Abdul Rashid Nasir and others v. The State (2009 SCMR 517). 7. Learned Deputy Prosecutor General appearing on behalf of the States does not oppose the legal position. 8. Having heard the learned counsel and after perusing the record available before me, I proceed to determine the matter accordingly. 9. Upon a meticulous examination of the record, it is evident that the learned trial Court recorded the evidence of Circle Officer/complainant Himath Ali; however, the cross-examination of the said witness was initially marked as "reserved." Subsequently, one Mr. Aijaz Ahmed Naich, Advocate, cross-examined the said witness; however, his vakalatnama is not found in the entire case file. Furthermore, the Investigating Officer (I.O.) was cross-examined by another Counsel, and only a single question was put to him. A similar situation is observed in the case of the third prosecution witness, Muhbat Khan, which demonstrably indicates that the appellant was not afforded a fair and meaningful opportunity to cross-examine the witnesses. Such denial of a fundamental right constitutes a manifest violation of Article 10-A of the Constitution of Pakistan, which guarantees the right to a fair trial and due process. 10. The evidence recorded under such circumstances holds no legal sanctity or evidentiary value, as a conviction cannot safely be based on such defective proceedings, particularly where the credibility of the witnesses remains untested on the touchstone of cross-examination. It is a well-established principle of law that cross-examination conducted by a Counsel who has not been engaged by the accused/appellant is not a substitute for a legitimate cross-examination conducted by a duly appointed defence Counsel. Any cross-examination by a stranger to the appellant cannot be deemed sufficient for the purposes of ensuring a fair trial. In light of these fundamental defects, the only appropriate course of action is to remand the case to the trial Court for retrial from the stage of examination-in-chief and cross-examination of all prosecution witnesses. In this regard, reliance is placed on the judgment reported as Abdul Ghafoor and others v. The State (2011 SCMR 23), which underscores the necessity of ensuring that an accused is afforded a proper opportunity to cross-examine prosecution witnesses, failing which a conviction cannot be sustained under the law. 11. Keeping in view the aforementioned legal position, the instant appeal stands allowed. Consequently, the impugned judgment dated 11-01-2023, rendered by the learned Special Judge, Anti-Corruption (Provincial), Sukkur Division at Sukkur, is hereby set aside, and the case is remanded to the trial Court for the purpose of conducting a "de novo" trial. The trial Court shall recommence proceedings from the stage of recording evidence, including examination-in-chief and cross-examination, of all three prosecution witnesses. Furthermore, the trial Court is directed to ensure that the appellant is afforded a fair and meaningful opportunity to engage a Counsel of his own choice and to conduct cross-examination of the witnesses in the presence of the defence Advocate. Upon completion of the evidence and after affording the right of hearing to the Counsel for both parties, the trial Court shall proceed to render an appropriate judgment in strict accordance with the law. Since, the instant case/FIR pertains to year, 2008 (old one), therefore, the trial should be concluded preferably within three months without any delay. 12. The appellant was on bail at the time of judgment; therefore, he shall remain on same bail subject to furnishing of fresh affidavit of surety before the Trail Court or fresh surety. 13. In view of above stated legal position, this appeal is disposed of along with listed application. JK/I-12/Sindh Order accordingly.

Summary: Post Arrest Bail in FIA Case no. SJC-1/T/01/2024 dated 18.09.2024 U/s 109, 409 PPC & 5(2) PCA 1947 P.S. FIA Anti-Corruption Circle, Islamabad (a) Criminal Procedure Code (V of 1898) –– ---- S. 497 – Post-arrest bail – Grant of bail – Political victimization – Petitioner, a former Prime Minister, sought post-arrest bail in a corruption case registered under Ss. 109, 409, PPC read with S. 5(2) of the Prevention of Corruption Act, 1947 – Petitioner had remained incarcerated since 05.08.2023 in multiple cases – Case against the petitioner alleged non-deposit of a gifted jewelry set in Toshakhana and its undervaluation through undue influence – Held, petitioner’s case required further inquiry, as the applicable Toshakhana policy (Cabinet Division’s O.M. dated 18.12.2018) did not explicitly impose criminal liability for non-deposit of a gift – Evidence against the petitioner was largely documentary and already in possession of the prosecution, reducing the risk of tampering – Petitioner had spent more than four months in custody, and trial had yet to commence – Principle of consistency applied, as petitioner’s wife had already been granted post-arrest bail in the same case – Petition accepted and post-arrest bail granted, subject to furnishing bail bonds of Rs.10,00,000/- with two sureties. (b) Penal Code (XLV of 1860) –– ---- Ss. 109 & 409 – Criminal breach of trust – Public office – Corruption allegations – Petitioner accused of retaining a gift received by his wife during an official foreign visit and influencing an undervalued price assessment – Prosecution relied on the statement of a private appraiser turned approver, alleging undue pressure from petitioner and his wife – Held, prosecution must establish direct evidence of criminal breach of trust – Allegation of undervaluation required scrutiny during trial, and approver’s testimony needed assessment by the trial court – Case fell within the ambit of further inquiry. (c) Administration of Justice –– ---- Grant of bail in corruption cases – Standard of inquiry – Petitioner’s previous conviction in a separate Toshakhana case by the Accountability Court was not a ground for denial of bail, as conviction had been suspended pending appeal – Suspension of sentence did not negate conviction but also did not attain finality – Bail cannot be refused solely on account of an accused’s criminal history unless risk of absconding or evidence tampering is demonstrated – Petitioner’s continued incarceration without substantive trial proceedings was unwarranted – Bail granted. (d) Legal Principles –– ---- Consistency in bail decisions – Petitioner’s wife had been granted post-arrest bail in the same case, and both were placed in the same category in the prosecution report – Principle of consistency warranted similar relief to the petitioner – No direct threats or coercion were attributed to the petitioner, and alleged undue influence on appraiser required proof during trial – Post-arrest bail granted. Disposition: ---- Post-arrest bail granted to petitioner, subject to furnishing bail bonds of Rs.10,00,000/- with two sureties, with a caution to appear before the trial court on all hearing dates.

Summary: Bail granted ----(a) Criminal Law – Post-Arrest Bail & Political Victimization ----Grant of Bail in Cases of Alleged Political Victimization----Held, where a petitioner claims political victimization, the court must assess whether the prosecution is selective in its approach and whether there is prima facie evidence to support the charge. Mere political association or prior incarceration in different cases does not justify prolonged detention without strong supporting evidence. Cited Cases: • Nawaz Sharif v. State (PLD 2009 SC 814) • Asif Ali Zardari v. State (2019 SCMR 2003) (b) Offense Under Section 409 PPC & Criminal Breach of Trust ----Application of Section 409 PPC in Toshakhana Cases----Held, criminal breach of trust under Section 409 PPC requires clear proof of dishonest misappropriation of public property by a public servant or an individual in a position of trust. Mere retention of a gift without malafide intent or established fraudulent undervaluation does not necessarily constitute an offense under Section 409 PPC. Cited Cases: • Asfandyar Wali v. State (2018 SCMR 1834) • State v. Sheikh Muhammad Rashid (PLD 2010 SC 457) (c) Retrospective Application of Rules & Legal Effect ----Applicability of Cabinet Division's Office Memoranda on Toshakhana----Held, an office memorandum (O.M.) that alters the legal consequences of an act cannot have retrospective effect unless explicitly stated. The O.M. dated 18.12.2018, which was applicable at the time of the alleged offense, did not stipulate criminal liability for non-deposit of gifts, whereas the O.M. dated 18.03.2023 introduced punitive action. Since the latter O.M. does not apply retrospectively, the case against the petitioner requires further inquiry. Cited Cases: • Gul Hassan v. State (PLD 2016 SC 249) • Shahid Orakzai v. Pakistan (PLD 2017 SC 514) (d) Grant of Bail & Burden of Proof ----Consideration for Granting Bail in White-Collar Crimes----Held, in cases of white-collar crimes or financial offenses, bail should be granted if (i) the prosecution evidence is primarily documentary, (ii) the accused is not required for further investigation, (iii) the trial is likely to be prolonged, and (iv) there is no likelihood of tampering with evidence. A prima facie case of further inquiry is sufficient to justify bail. Cited Cases: • NAB v. Anwar Majeed (2022 SCMR 304) • Syed Khursheed Shah v. NAB (2021 SCMR 1412) (e) Suspension of Sentence & Its Legal Implications ----Effect of Suspended Conviction on Bail Consideration----Held, the suspension of a sentence does not nullify the conviction, but it does impact the accused’s right to bail. Where an appeal is pending, and no final determination of guilt has been made, the court must balance the presumption of innocence with the severity of the allegations before denying bail. Cited Cases: • Mian Muhammad Shahbaz Sharif v. NAB (2019 SCMR 1929) • Khizar Hayat v. State (PLD 2019 SC 527) Disposition: Bail granted. Petitioner admitted to post-arrest bail subject to furnishing bail bonds of Rs.10,00,000/- with two sureties.

Summary: Background: The petitioner, an employee of a government corporation, was accused of embezzling Rs. 448,604. He was tried by an Anti-Corruption Court, convicted under Section 409 of the Pakistan Penal Code (PPC) and Section 5(2) of the Prevention of Corruption Act, 1947, and sentenced to three years in prison with fines of Rs. 250,000 for each offense. The petitioner appealed the decision to the High Court, which dismissed his appeal. He then petitioned the Supreme Court, admitting that he had deposited the embezzled amount in the State exchequer and requesting a reduction in his sentence due to his wife’s illness and other personal hardships. -----Issues: 1- Whether the petitioner’s repayment of the embezzled amount warrants a reduction in his sentence. -----2- Whether the petitioner’s personal circumstances, such as his wife’s illness, justify leniency in sentencing. -----3- Whether the conviction under Section 409 PPC and Section 5(2) of the Prevention of Corruption Act, 1947, should be upheld. -----Holding/Reasoning/Outcome: --Reduction of Sentence: The Supreme Court acknowledged that although the petitioner could not claim a reduction of sentence as a matter of right, his repayment of the embezzled amount and his willingness to resolve the matter without further contestation indicated a sincere intention to make amends. Considering the petitioner’s efforts and his personal circumstances, the court decided to reduce his sentence. --Personal Circumstances: The court took into account the petitioner’s family situation, particularly his wife’s serious illness, which required his support. His decision to not further contest the case showed his desire to end the proceedings and return to his family, which was seen as a mitigating factor. --Upholding of Conviction: While the petitioner’s conviction under Section 409 PPC and Section 5(2) of the Prevention of Corruption Act was upheld, the court reduced the sentences in both offenses to the time already served. Additionally, the fines were significantly reduced from Rs. 250,000 to Rs. 40,000 under Section 409 PPC and from Rs. 250,000 to Rs. 10,000 under Section 5(2) of the Prevention of Corruption Act. The petitioner was ordered to serve additional short imprisonment terms if he failed to pay the reduced fines. -----Citations/Precedents: Pakistan Penal Code, Section 409 Prevention of Corruption Act, 1947, Section 5(2) Criminal Procedure Code (Cr.P.C.), Section 382-B