Red Notices against Foreign National Proclaimed Offender

 PLJ 2024 Karachi 138 (DB)

Present: Aqeel Ahmed Abbasi, CJ and Abdul Mobeen Lakho, J.

Dr. SHEHZAD NASIM and another--Petitioners

versus

FEDERATION OF PAKISTAN and others--Respondents

Const. P. 2735 of 2024, decided on 12.6.2024.

Constitution of Pakistan, 1973--

----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 87, 88 & 512--Issuance of non-bailable warrants--Proclaimed offenders--Foreign national--Initiationing of process for red notices--In case of petitioners for issuance of Notices had been initiated in absence of any order from competent Court of jurisdiction while filing an application to that effect, seeking permission for issuance of Notices in accordance with law and procedure to be adopted for such purpose--It was admitted position that no order had been passed by trial Court in terms of Sections 87/88 read with Section 512, Cr.P.C. against petitioners--There seems no ambiguity as to adopt legal course and procedure prescribed by law to secure appearance of absconding accused person(s) before trial Court--The impugned letters were without lawful authority--Petition disposed of.

                                                                      [Pp. 141 & 143] A, B & C

Mr. Shaukat Ali Shehroze, Advocate for Petitioners.

Mr. Khaleeq Ahmed, DAG alongwith Ms. Shireen Hina, Section Officer, FIA (Policy), Ministry of Interior, Islamabad.

Date of hearing: 12.6.2024.

Order

1. Through instant petition, petitioners through attorney have sought following relief:

          “It is most respectfully prayed on behalf of the petitioners above named that this Hon'ble Court may be pleased to restrain the respondents from issuing Interpol Red notices/warrants and taking any further action in connection with the impugned letters against the petitioners as well as to recall/set aside and suspend the operation of Letter No. AA/25(RD)NCB/2024-5312 dated: 29.04.2024 & Letter No. AA/25(RD)NCB/2024-5314 dated: 29.04.2024 issued without following mandatory procedure and adopting legal requirements as required by
 law.

          Any other relief(s) may deem fit and proper under the circumstances of the case.”

2. On 30.05.2024, when the matter was fixed in Court, contention of learned counsel for the petitioners was recorded and Notices were issued in the following terms:-

“3-4. Through instant Petition, the Petitioners who are reportedly residing at Singapore, have filed instant Petition through their attorney, namely, Nudrat Mand Khan who is present in Court along with the learned counsel for the Petitioners, and have expressed their grievance against issuance of two letters dated 29.04.2024, available at [Pages-15-17 of Court File] issued by the Assistant Director, NCB-Interpol addressed to the Section Officer [FIA], Ministry of Interior, [Mol], Islamabad, with a request for issuance of Interpol Red Notices of Proclaimed Offender/Accused Dr.Nasim Shahzad and Muhammad Umar Shehzad in FIR No. 14 of 2023 of CBC Karachi, on the grounds that such authority is not vested in the FIA or any other Agency, unless an Order to this effect is passed by the Competent Court of jurisdiction in a criminal case to ensure appearance of any Accused/Proclaimed offender, whereas, according to learned counsel, in the instant case admittedly no Order has been passed by the Presiding Officer of Special Courts (Offences in Banks) -Ministry of Law and Justice. According to learned counsel for the Petitioners, Petitioners will seek remedy against the criminal proceedings before the Competent Court of jurisdiction by filing Transitory/Protective Bail so that Petitioners will be enable to defend their position, however, through instant Petition, the Petitioners have sought a declaration with regard to impugned letters which have been issued without lawful authority in violation of law.

          Let pre-admission Notice be issued to the Respondents as well as DAG to be served through first three modes for 12.06.2024, when reply/ objections, if any, shall be filed with advance copy to learned counsel for the Petitioners. In the meanwhile, Respondents are restrained from taking any further adverse/coercive action against the Petitioners pursuant to impugned letters, as referred to hereinabove, till next date of hearing. Learned DAG present in Court in some other cases waives notice of instant Petition, claims its copy and seeks time to file comments. Learned counsel for the petitioner has supplied copy of the same to the learned DAG in Court. Let the reply/comments, if any, be filed before next date with advance copy to the learned Counsel for Petitioner.”

3. Pursuant to Court’s Notices, Ms. Shireen Hina, Section Officer, FIA (Policy), Ministry of Interior, Islamabad, has shown appearance alongwith learned DAG and has filed parawise comments along with report on behalf of Respondents No. 1 to 4, which are taken on record, copy thereof has been supplied to the learned counsel for petitioners, who after perusal of the same submits that there is no order of the Court for issuance of Red Warrant/Notice against the petitioners, who are foreign national, whereas, according to learned counsel for the petitioners, legal requirements, including initiation of proceedings under Section 87/88 Cr. P.C. read with Section 512 Cr. P.C. have not yet been undertaken in the instant matter. However, Assistant Director, NCB-Interpol has issued the impugned two (02) Notices, both dated 29.04.2024 addressed to the Section Officer (FIA), Ministry of Interior, (MOL), Islamabad, requesting for issuance of Interpol Red Notices against the proclaimed Offender/Accused Dr. Nasim Shahzad & Muhammad Omar Shahzad – Case FIR No. 14/2023 of CBC Karachi, which is totally illegal and without lawful authority.

4. While confronted with hereinabove factual and legal position, as stated by learned counsel for the petitioners, Section Officer, FIA (Policy), Ministry of Interior, Islamabad, present in Court and the learned DAG could not controvert such position, however, submitted that only a process for issuance of Red Notices has been initiated against the accused absconders, whereas, trial Court has already issued non-bailable warrant of arrest against both the accused, who are petitioners in the instant case. Learned counsel for the petitioners in response to such contention submits that there is no provision under the law for issuance of Red Warrants/Notices without orders of the competent Court of jurisdiction after proceedings under Sections 87/88, read with Section 512, Cr.P.C, therefore, prays that impugned Notices may be declared to be illegal and without lawful authority.

5. Heard the learned counsel for the petitioners as well as learned DAG and the Section Officer appearing on behalf of the Respondents No. 1 to 4, perused the record with their assistance as well as relevant provisions of law relating to issuance of non-bailable warrants of arrest declaring the accused nominated in FIR as absconders/pro-claimed offenders and issuance of Red warrants/ Notices through concerned Ministry to secure appearance of absconding accused after his arrest, in Court. Prima-facie, the proceedings initiated by the respondents/NCB-Interpol, FIA, Islamabad, in the case of petitioners for issuance of Red Warrants/ Notices have been initiated in the absence of any order from the competent Court of jurisdiction while filing an application to this effect, seeking permission for issuance of Red Warrants/Notices in accordance with law and the procedure to be adopted for such purpose. It is admitted position that no order has been passed by the learned trial Court in terms of Sections 87/88 read with Section 512, Cr.P.C. against petitioners in the above case. It has been further noted that alongwith comments filed by the respondent, a copy of letter dated 08.05.2011 issued from Ministry of Interior, Government of Pakistan has been attached, which is reproduced hereunder for relevance to the proceedings under consideration:

No. 6/30/2011-FIA
GOVERNMENT OF PAKISTAN
MINISTRY OF INTERIOR

****

Islamabad, the 6th May, 2011

1.     The Home Secretary, Government of Punjab, Lahore	9.     The Provincial Police Officer, Punjab, Lahore.
2.     The Home Secretary, Government of Sindh, Karachi.	10.   The Provincial Police Officer, Sindh, Karachi.
3.     The Home Secretary, Government of Balochistan, Quetta.	11.   The Provincial Police Officer, KPK, Peshawar.
4.     The Home Secretary, Government of KPK, Peshawar.	12.   The Provincial Police Officer, Balochistan, Quetta.
5.     The Chief Secretary, Gilgit-Baltistan, Gilgit.	13.   The Inspector General of Police, Azad Jammu & Kashmir, Muzaffarabad.
6.     The Chief Secretary, Azad Jammu & Kashmir, Muzaffarabad.	14.   The Inspector General of Police, Gilgit-Baltistan, Gilgit.
7.     The Chairman, National Accountability Bureau, Islamabad.	15.   The Director (NCB) FIA Headquarters, Islamabad
8.     The Director General, FIA Headquarters, Islamabad.

SUBJECT:   ISSUANCE OF RED WARRANT/NOTICE AND EXTRADITION ORDER

          I am directed to say that the Minister for Interior has directed that no Red Warrant/Notice and Extradition Order shall be issued without approval of the Minister vide Ministry of Interior letter No. 6/3/2011-FIA dated 28-03-2011.

2. It is requested that requests for issuance of Red Notice to the accused person may please be routed through the Ministry of Interior, Islamabad for approval and onward processing by the NCB-INTERPOL in future.

3. It is further requested that the following documents in duplicates (two separate sets) dully attested by the concerned D.P.O. may please be furnished to this Ministry alongwith request, otherwise no action will be taken on incomplete documents:

i.	Red Notice application form indicating date of birth on the format of the INTERPOL duly filled by District Police Officer etc.
ii.	Copy of FIR in English translation
iii.	Statement of witnesses u/s 161 Cr.P.C.
iv.	Summary/History of the case in English
v.	1st warrant for arrest of accused U/S 204 CrPC-issued by the Court.
vi.	Proclamation order against accused U/S 87, 204 Cr.P.C by the court to be published in the Newspaper for appeared before the court within one month.
vii.	Perpetual warrant of arrest under u/s 512 Cr.P.C issued by the court.
viii .	PISCES verification/travel history.
viii .	Photograph (4x4)
ix.	Verisys information (CNIC)/copy of CNIC or CNIC No.

                               Sd/-
                               (ABDUL HANAN)
                               Section Officer (FIA)
                               Tele: 051-9207862”

6. The legal position as stated above is duly acknowledged by the Ministry of Interior in aforesaid letter, therefore, there seems no ambiguity as to adopt the legal course and procedure prescribed by law to secure the appearance of absconding accused person(s) before the trial Court.

7. In view of hereinabove facts and circumstances of instant case, the impugned letters are without lawful authority, hence of no legal effect. However, respondents are at liberty to pursue the matter before the relevant forum/Court and after obtaining the appropriate orders may take further step to secure the production of the absconding accused persons before the Court, in accordance with law. The petitioners are also at liberty to seek appropriate remedy by approaching the relevant forum/Court to join the trial in accordance with law.

8. Instant Constitution Petition stands disposed of in the above terms along with listed application.

(Y.A.)  Petition disposed of

Rule of Consistency in Conviction and Acquittal

 PLJ 2024 Cr.C. 553

[Lahore High Court, Lahore]

Present: Farooq Haider, J.

ASIF alias ASAD and 3 others--Appellants

versus

STATE and another--Respondents

Crl. A. No. 245 & 409 of 2016, heard on 4.3.2024.

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 148--Rioting armed with deadly weapon--Conviction and sentence--As per own case of prosecution, (co-accused/still proclaimed offender) fired shot and caused single/fatal firearm injury to deceased of case, however, present appellants neither caused any injury to deceased or anybody else in case nor even attempted to do so rather allegation of ineffective firing has been alleged against them--Section 148 PPC speaks regarding punishment for rioting armed with deadly weapon--In such perspective, report of Punjab Forensic Science Agency regarding mere working capability of said weapons cannot provide any corroboration to case of prosecution against both these appellants--Hence, when empties were sent to Punjab Forensic Science Agency after arrest of appellant, then report of said Agency regarding matching of empties with allegedly recovered shotgun from appellant is inconsequential and in this regard--When neither common object nor motive could be established by prosecution against present appellants and even recovery of weapons from appellants is inconsequential, then nothing is available on record to provide any corroboration to case of prosecution against present appellants--Held: By now it is well settled that, if same/identical role has been alleged against more than one accused and anyone out of them has been acquitted, then in absence of strong corroboration, other accused persons against whom also similar allegation was levelled by prosecution, cannot be convicted and sentenced--Prosecution has been failed to prove its case against appellants beyond shadow of reasonable doubt and in such state of affairs, there is no need to discuss defence version          

                                               [Pp. 556, 559, 560 & 561] A, C, D, E & F

2018 SCMR 772, 2020 SCMR 287

Pakistan Penal Code, 1860 (XLV of 1860)--

----Ss. 146, 141 & 148--Provisions of law makes it crystal clear that if “rioting” is committed by accused persons while armed with deadly weapons then they are to be punished u/S. 148 PPC and as per Section: 146 PPC, “rioting” is use of force or violence by an unlawful assembly or by any member thereof in prosecution of common object of said assembly and it is equally important to mention here that as per Section: 141 PPC, assembly is designated as “unlawful assembly” if same has been constituted for achieving “common object” mentioned in five clauses mentioned therein; Hence, “common object” is necessary ingredient for invoking Section: 148 PPC.     [Pp. 557 & 558] B

PLD 1996 SC 219.

Mr. Ijaz Ahmad Janjua, Advocate for and with Asif alias Asad Irshad, Muhammad Riaz and Shaukat Ali for Appellants (appellants in Crl. Appeal No. 245/2016 on bail).

Rana Khalid Mehmood, Advocate, vice counsel for and with Jamshaid Ahmad (Appellant in Crl. Appeal No. 409/2016 on bail).

Mr. Ehtesham-ul-Haq, Advocate for Complainant.

Mr. Haroon Rasheed and Ms. Nuzhat Bashir, Deputy Prosecutors General for State.

Date of hearing: 4.3.2024.

Judgment

This single judgment will dispose of Crl. Appeal No. 245/2016 filed by Asif alias Asad, Irshad, Muhammad Riaz and Shaukat Ali (appellants/convicts) against their “conviction & sentence” and Criminal Appeal No. 409/2016 preferred by Jamshaid Ahmed (appellant/convict) against his “conviction & sentence” as these both have arisen out of one and the same impugned judgment dated: 30.01.2016 passed by learned Additional Sessions Judge, Gujranwala/ trial Court.

2. Asif alias Asad, Irshad, Muhammad Riaz, Shaukat Ali and Jamshaid Ahmad (appellants in aforementioned appeals, hereinafter to be referred as appellants) along with Muhammad Aslam, Basharat Ali, Muhammad Javed, Nasir Mehmood and Arshad Ali (since acquitted), Sajid (since proclaimed offender) and Asad Ali (who became proclaimed offender during trial after framing of charge) being involved in case arising out of FIR No. 332/2011 dated: 17.07.2011 registered under Sections: 302, 109, 148, 149 PPC at Police Station: Wahando, District Gujranwala were tried and trial Court vide impugned judgment dated: 30.01.2016 while acquitting aforementioned co-accused persons namely Muhammad Aslam, Basharat Ali, Muhammad Javed, Nasir Mehmood and Arshad Ali of all the charges, has convicted and sentenced the appellants as under:

Convictions	Sentences
Under Section: 148 PPC	“Three years” Rigorous Imprisonment each with fine of Rs.50,000/-each and in case of non-payment of fine, to further undergo Simple Imprisonment for four months each. Benefit of Section: 382-B Cr.P.C. was also extended in favour of all the five appellants.

3. Machinery of law was set into motion by Karamat Ali (complainant/PW-5) by moving application (Ex.PD) to Muhammad Nawaz, ASI/D.O.(PW-9) in Police Station: Wahando, District Gujranwala while mentioning therein that he is resident of Shadi Khan Wala and is a cultivator by profession; on 16.07.2011, petty quarrel of brother of complainant namely Amanat Ali took place with Sajid, Asif alias Asad, residents of the deh, who had extended threat that they will teach him a lesson due to quarrel; on 17.07.2011 at about 7:30 a.m., complainant and his brother Amanat Ali were proceeding to their fields for working, when they were at a little distance from fields, accused persons namely Sajid armed with 44-bore rifle, Asif alias Asad (both sons of Liaqat Ali) armed with Kalashnikov, Asad Ali son of Basharat armed with Kalashnikov, Riaz son of Mehar Din armed with .223 bore rifle, Irshad alias Mehar Din armed with .8mm rifle, Shaukat Ali son of Mehar Din armed with Kalashnikov, Javed son of Ashiq armed with Kalashnikov, Jamshaid son of Mehar Sadiq armed with Kalashnikov, who had already waylaid in furtherance of their common object, started raising lalkaras to teach a lesson for quarrelling and said that they should not be left alive; Sajid son of Liaqat Ali made straight fire shot with rifle at Amanat Ali, which landed at front of his neck, who fell on the ground and died at the spot; the complainant saved his life while laying in the watercourse (کھال); co-accused persons remained firing with their respective weapons; occurrence was witnessed by Muhammad Azam, Nawaz and Zulifqar Ali, who were working in nearby fields; occurrence was committed at the abetment/conspiracy of Basharat Ali, Muhammad Arshad, Muhammad Aslam, Nasir Mehmood and conspiracy hatched by them was heard by Mustafa and Iftikhar Ahmad a few days before the occurrence. Motive behind the occurrence was landed dispute.

4. After completion of investigation, report under Section: 173 Cr.P.C. was submitted in the Court; appellants along with co-accused were formally charge sheeted but they pleaded not guilty and claimed trial whereupon prosecution evidence was summoned; prosecution during trial examined twelve (12) witnesses, out of which, medical evidence was furnished by Dr. Salman Kazmi, Medical Officer (PW-1), ocular account was furnished by Karamat Ali (complainant/PW-5) and Zulifqar Ali (PW-6), Istikhar Ahmad (PW-7) and Ghulam Mustafa (PW-8) are witnesses of abetment/conspiracy whereas detail of investigation of the case was deposed by Ghulam Ali, Inspector/ Investigating Officer (PW-11); prosecution after giving up Muhammad Azam, Basharat Ali and Muhammad Nawaz (PWs) as being unnecessary and tendering report of Chemical Examiner (Ex.PN), report of Serologist (Ex.PO) and report of Punjab Forensic Science Agency (Ex.PP) closed its evidence; after recording of prosecution evidence, accused persons (appellants) were examined under Section: 342 Cr.P.C. but they refuted the allegations levelled against them; they neither opted to appear as their own witnesses under Section: 340(2) Cr.P.C. nor produced any evidence in their defence.

Trial Court after conclusion of trial has convicted and sentenced the appellants as mentioned above through the impugned judgment dated: 30.01.2016.

5. Learned counsel for the appellants, while opening the arguments, submit that conviction recorded against and sentence awarded to the appellants through impugned judgment are against the ‘law and facts’ and result of non-reading/misreading of evidence; further submit that prosecution has failed to prove its case against the appellants through cogent and reliable evidence. In such perspective, learned counsel finally prays for acquittal of the appellants.

6. Conversely, learned Deputy Prosecutors General and learned counsel for the complainant submit that prosecution has proved its case against the appellants up to hilt, therefore, their appeals are liable to be dismissed.

7. Arguments advanced pro and contra have been heard and available record perused.

8. As per own case of prosecution, Sajid (co-accused/still proclaimed offender) fired shot and caused single/fatal firearm injury to Amanat Ali (deceased of the case), however, present appellants neither caused any injury to the deceased or anybody else in the case nor even attempted to do so rather allegation of ineffective firing has been alleged against them. Section 148 PPC speaks regarding punishment for rioting armed with deadly weapon and same is hereby reproduced:

“148. Rioting armed with deadly weapon.--Whoever is guilty of rioting, being armed with deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”

(emphasis added)

whereas “rioting” has been defined under Section: 146 PPC, which is also reproduced for ready reference:-

“146. Rioting.--Whenever force or violence is used by an unlawful assembly, or by any member thereof in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.”

(emphasis added)

and “unlawful assembly” has been defined under Section: 141 PPC, which reads as follows:-

“141. Unlawful assembly.--An assembly of five or more persons is designated an “unlawful assembly” if the common object of the persons composing that assembly is;

First. To overawe by criminal force, or show of criminal force, the Central or any Provincial Government or Legislature, or any public servant in the exercise of the lawful power of such public servant; or

Second. To resist the execution of any law, or of any legal process; or

Third. To commit any mischief or criminal trespass, or other offence, or

Fourth. By means of criminal force, or show of criminal force to any person to take or obtain possession of any property or to deprive any person of the enjoyment of a right of way, of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

Fifth. By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do or to omit to do what he is legally entitled to do.

Explanation. An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.”

(emphasis added)

Perusal of the aforementioned provisions of law makes it crystal clear that if “rioting” is committed by the accused persons while armed with deadly weapons then they are to be punished under Section: 148 PPC and as per Section: 146 PPC, “rioting” is use of force or violence by an unlawful assembly or by any member thereof in prosecution of the common object of said assembly and it is equally important to mention here that as per Section: 141 PPC, assembly is designated as “unlawful assembly” if same has been constituted for achieving “common object” mentioned in five clauses mentioned therein; Hence, “common object” is necessary ingredient for invoking Section: 148 PPC; in this regard, case of “Liaquat versus The State” (PLD 1996 Supreme Court 219) can be advantageously referred and its relevant portion from Page No. 222 is hereby reproduced:

“A plain reading of these provisions will show that an accused cannot be convicted under Section 148, P.P.C. unless he is found to be member of unlawful assembly using force or violence in prosecution of the common object of such assembly.”

(emphasis added)

cases of “Abul Hussain and others versus The State” (1968 PCr.LJ 300), “The State through Advocate-General, Balochistan, Quetta versus Jamadar Muhammad Khan and another” (2005 PCr.LJ 1442), “Nazir Ahmed and others versus The State and others” (PLD 2005 Karachi 18) and “Habib Ahmad and others versus The State” (2020 PCr.LJ 1185) [Lahore] can also be safely referred on the subject.

In this case, it has been rightly held by trial Court for the valid reasons in paragraph No. 17 of the judgment that prosecution could not establish common object; relevant portion of said paragraph is hereby reproduced:

“---- yet it is an admitted fact that no fire made by the remaining accused present in the Court hit the deceased or complainant, hence prosecution was required to prove that they acted in prosecution of their common object. The entire evidence produced by the prosecution is scanned, which could not establish that present accused gathered at the place of occurrence for commission of murder. If they gathered for committing murder then complainant and other PWs were also at their mercy and they should not have been spared. It is also not proved that present accused made straight firing upon deceased or complainant. Besides above, deceased received only single fire shot, which prima facie established that common object in this case is missing.”

(emphasis added)

Therefore, conviction of the appellants under Section: 148 PPC raises eye brows as well as is a question mark.

Apart from above, it is noteworthy here that as per own case of prosecution, Asif alias Asad, Irshad, Muhammad Riaz, Shaukat Ali, Jamshaid Ahmad, Asad Ali (since proclaimed offender) and Javed (since acquitted) have been given one and the same/identical role of making ineffective firing, however, Javed (mentioned above) has already been acquitted and his acquittal has neither been challenged by the State nor by the complainant as confirmed by learned Deputy Prosecutors General as well as by learned counsel for the complainant. Therefore, now strong and independent corroboration is required to uphold the conviction and sentence awarded to the present appellants. It is relevant to mention here that for the genuine reasons mentioned in paragraph No. 15 of the impugned judgment, trial Court has held that prosecution remained fail to prove the motive against present appellants; said paragraph is hereby reproduced:

“15. As far as motive part of the occurrence is concerned, it is admitted by the complainant that accused present in the Court are neither vendors not vendees of the land in dispute. It is also an admitted fact that complainant did not produce any witness of prior occurrence, which allegedly took place on 16.07.2011 between deceased and Sajid etc. No overwhelming evidence regarding motive part has been brought on record. Hence it is concluded that prosecution has not proved motive part of the occurrence against present accused persons.”

(emphasis added)

Though learned Deputy Prosecutors General as well as learned counsel for the complainant emphasis that corroboration is available in the form of recoveries effected from Irshad, Shaukat Ali and Jamshaid Ahmad (appellants), however, it is worth mentioning here that Kalashnikov (P.4) recovered from Shaukat Ali (appellant) and Kalashnikov (P.6) recovered from Jamshaid Ahmad (appellant) were sent to Punjab Forensic Science Agency, Lahore and as per report of said agency (Exh.PP), said both weapons were though in working condition yet empties secured from the place of occurrence and sent to Punjab Forensic Science Agency for comparison, did not match with said weapons. In such perspective, report of Punjab Forensic Science Agency regarding mere working capability of said weapons cannot provide any corroboration to the case of prosecution against both these appellants i.e. Shaukat Ali and Jamshaid Ahmad; in this regard, cases of “Muhammad Mansha versus The State” (2018 SCMR 772) and “Imtiaz alias Taji and another versus The State and others” (2020 SCMR 287) can be safely referred.

Now coming to the case of Irshad (appellant), as per application for registration of case (Ex.PD) and FIR (Exh.PD/1), he was armed with .8mm rifle which he allegedly used in the occurrence and same is the position/stance in the statements of Karamat Ali (complainant/PW-5) and Zulifqar Ali (eye witness/PW-6) recorded during trial of the case, however, .8mm rifle was not recovered from him rather as per case of prosecution, .12-bore shotgun was recovered from him. So, at the maximum, it can be said that firearm weapon .12-bore shotgun was recovered from Irsahd (appellant) but since use of .12-bore shotgun was not claimed in the application moved for registration of the case (Exh.PD) and in the FIR (Exh.PD/1) as well as in the statements of complainant and eye witness recorded during trial of the case, therefore, recovery of said gun is of no avail to the prosecution for the purpose of having corroboration. Though according to the report of Punjab Forensic Science Agency (Ex.PP), two out of four empties of .12-bore shotgun cartridge cases sent to Punjab Forensic Science Agency have matched with the aforesaid shotgun yet it is own case of prosecution that Irshad (appellant) was arrested in this case on 21.07.2011; in this regard relevant portion of the statement of Ghulam Ali, Inspector/Investigating Officer of the case (PW-11) is hereby reproduced:

“On 21.07.11, I arrested Shaukat Ali, Irshad and Jamshaid…”

whereas empties were admittedly sent to Punjab Forensic Science Agency on 30.07.2011 i.e. after arrest of Irshad (appellant) and in this regard relevant portion of the statement of Nadeem Akhtar, ASI/Moharrar of the Police Station (PW-12) is hereby reproduced:

“On 30.07.11, I handed over the sealed parcel of crime empties to Abdul Razzaq constable 2354-C in order to deposit the same in the office of PFSA, Lahore intact.”

Statement of Abdul Razzaq 2354-C (PW-10) can also be referred in this regard, which is reproduced as under:

“On 30.07.2011, said Moharrar handed over me a sealed parcel said to contain crime-empties for deposit in the office of FSL, Lahore. On the same day I deposited the parcel in the said office intact. On the same day I.O. recorded my statement U/S 161 Cr.P.C.”

Hence, when empties were sent to Punjab Forensic Science Agency after arrest of Irshad (appellant), then report of said Agency regarding matching of empties with allegedly recovered shotgun from Irshad (appellant) is inconsequential and in this regard cases of “Muhammad Ilyas versus Muhammad Abid alias Billa and others” (2017 SCMR 54) and “Nawab Siraj Ali and others versus The State through A.G. Singh” (2023 SCMR 16) can be safely referred. Therefore, aforementioned recovery cannot provide any corroboration to the case of prosecution against said appellant.

Undeniably no weapon of offence was recovered from Asif alias Asad and Muhammad Riaz (appellants). In above scenario, it can be safely concluded that when neither common object nor motive could be established by the prosecution against the present appellants and even recovery of the weapons from Irshad, Shaukat Ali and Jamshaid Ahmed (appellants) is inconsequential, then nothing is available on record to provide any corroboration to the case of prosecution against the present appellants. By now it is well settled that, if same/identical role has been alleged against more than one accused and anyone out of them has been acquitted, then in absence of the strong corroboration, other accused persons against whom also similar allegation was levelled by the prosecution, cannot be convicted and sentenced and in this regard cases of “Mst. Sughra Begum and another versus Qaiser Pervez and others” (2015 SCMR 1142), “Imtiaz alias Taj versus The State and others” (2018 SCMR 344), “Haroon Shafique versus The State and others” (2018 SCMR 2118), “Munir Ahmad and another versus The State and others” (2019 SCMR 79), “Altaf Hussain versus The State” (2019 SCMR 274), “Liaqat Ali and others versus The State and others” (2021 SCMR 455), “Muhammad Idrees and another versus The State and others” (2021 SCMR 612) and “Pervaiz Khan and another versus The State” (2022 SCMR 393) can be advantageously referred.

9. Nutshell of the above discussion is that prosecution has been failed to prove its case against the appellants beyond shadow of reasonable doubt and in such state of affairs, there is no need to discuss defence version.

10. In view of what has been discussed above, Crl. Appeal No. 245/2016, filed by Asif alias Asad, Irshad, Muhammad Riaz and Shaukat Ali (appellants) and Crl. Appeal No. 409/2016 filed by Jamshaid Ahmad (appellant) are allowed/accepted; conviction recorded and sentence awarded to aforementioned appellants through impugned judgment dated: 30.01.2016 passed by learned Additional Sessions Judge, Gujranwala/trial Court, are hereby set aside. Resultantly, Asif alias Asad, Irshad, Muhammad Riaz, Shaukat Ali and Jamshaid Ahmad (appellants) are acquitted of the charge. All the appellants are on bail, as during pendency of their appeals (mentioned above), execution of their sentence was suspended vide order dated: 18.10.2016 passed by this Court in Crl. Misc. No. 1/2016 of their respective appeals (mentioned above), therefore, their sureties stand discharged from their all liabilities.

(A.A.K.)          Appeals allowed

Fugitive from law loses some of his rights

 PLJ 2014 Cr.C. (Peshawar) 828

[Bannu Bench]

Present: Muhammad Daud Khan, J.

AZIZ-UR-REHMAN--Petitioner

versus

DIN BIBI & others--Respondents

Crl. Misc./B.A. No. 79-B of 2014, decided on 9.5.2014.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497(1)--Pakistan Penal Code, (XLV of 1860), S. 302--Bail, dismissal of--Prohibitory clause--There was another police report available on record, which revealed that on the same time firing in between two parties were in progress and since the deceased was drug peddler, therefore, he may be killed by some body else--Perusal of the report showed that the police officials deputed near the Police Post, were not present at their duty, due to which accused could not be arrested at the spot and on explanation it was replied in shape of report that it was firing between the two groups--Further this report was not supported by any documentary or oral evidence--Contention of counsel for petitioner that there were two different versions was not based on sound reasons and accused/petitioner cannot get its benefit at bail stage--After registration of case petitioner did not surrender, due to which proceedings u/S. 204, Cr.P.C. and 87, Cr.P.C. were initiated and consequently challan u/S. 512, Cr.P.C. was submitted, and statements of eight PWs were recorded in his absentia and he has been declared as Proclaimed Offender--The occurrence took place and accused was arrested after a long absconsion of more than a year--Held: It is settled principle that a fugitive from law loses some of his normal rights, such as procedural as well as substantial and bail may be declined merely on the basis of abscondence, irrespective of the merits of the case.  [Pp. 830 & 831] A, C & D

Ipsi dixit--

----Principle--It is settled law that Courts are not bound by the ipsi dixit of police.      [P. 831] B

Mr. Hamayun Khan Wazir and Mr. Abdur Rasheed Khan Marwat, Advocates for Petitioner.

Mr. Qudratullah Gandapur, Asstt. A.G. for State.

Mr. Faqir Mahboob-ul-Hameed, Advocate for Respondents.

Date of hearing: 19.5.2014.

Judgment

Having unsuccessful in obtaining bail from the two Courts below the accused/petitioner, Azizur Rehman, involved in case F.I.R No. 114, dated 13.03.2013, under Sections 302, PPC of Police Station Ghazni Khel, Lakki Marwat, has moved this further application through his counsel for the same relief.

2.  The allegations against the accused/petitioner, as per F.I.R, referred to above, are that Mst. Din Bibi widow of Din Shah aged about 50/55 years, at the Baithak of Saadullah Khan situated at Taja Zai, reported the matter to Habibur Rehman Khan ASI, on 13.03.2013 at 16.30 hours, to the effect that on the eventful day, she along with her son Suleman Shah after Zohar Prayer, left for Adda Tajazai for the purpose of buying house hold articles, at about 15.30 hours, when they reached near forest office situated at Tajazai Adda, at road side, accused Azizur Rehman armed with Pistol appeared and with the intention to commit Qatl-e-Amd started firing at her son, resultantly, he was hit and fell down. Accused after the occurrence decamped from the spot. When she attended her son, he was taking his last breathes and died at the spot. Due to rain, with the help of co-villagers, dead-body was shifted to the Baithak of Saadullah. Motive for the occurrence alleged by the complainant was previous blood feud. The report of complainant was reduced in shape of murasila, which was sent to the Police Station Ghazni Khel, through Constable Inamullah No. 370, which was culminated into registration of above mentioned F.I.R.

3.  Learned counsel for the accused/petitioner argued that the report has been lodged after consultation and deliberation with a considerable delay; that medical report contradicts the report of complainant; that the deceased himself was hardened and desperate criminal; that no independent witness is available; that abscontion could not come in the way of bail, when otherwise on merits the accused/petitioner is entitled for the concession of bail; that the IO has alleged another story, which contradicts the complainant version, hence, in order to ascertain that which one version is correct, the instant case needs further probe into the matter and the case of accused/petitioner falls under Section 497(2), Cr.P.C. and he is entitled for the concession of bail.

4.  On the other hand learned counsel for the complainant vehemently rebutted the arguments advanced by learned counsel for the accused/petitioner and contended that the complainant/eye-witness has directly charged single accused/petitioner for committing Qatl-e-Amd of deceased Suleman Shah by firing at him in promptly lodged F.I.R; that it is a day light occurrence, and the parties are known to each other, hence there is no question of misidentification; that a young son has been killed before the eyes of a mother/complainant with the motive of previous blood feud, hence, substitution of real culprit or false implication is rear phenomena; that an empty of .30 bore pistol and blood stained earth and pebbles recovered from the spot; that medical evidence fully supports the prosecution version; that ipsi dixit of police is not binding on the Courts; that the accused/petitioner remained absconder for sufficient time; that trial has been commenced, as such he is not entitled for concession of bail.

5.  I have heard arguments of learned counsel for the parties, Asstt: A.G for the state and perused the record with their valuable assistance.

6.  Perusal of the record divulges that the occurrence took place on 13.03.2013 at 15.30 hours, whereas the report has been lodged at 16.30 hours, with a delay of one hour. The contention of learned counsel for the accused/petitioner that this delay has been consumed in consultation and deliberation is not worth consideration, as bare reading of F.I.R reveals that the occurrence took place away from the house of complainant, when the deceased accompanied his mother was going towards Adda Tajazai, and after the occurrence, due to rain the dead-body was shifted to the Baithak of one Saadullah, hence, there is no room for consultation and deliberation. The substitution by a mother/complainant leaving the actual culprits is also rear phenomena. Further being day light occurrence. The parties being co-villagers and having previous blood feud known to each other, hence, there is also no question of misidentification.

7.  Mst. Din Bibi, complainant directly charged single accused/ petitioner for murder of her son Suleman Shah by firing at him with .30 bore pistol and the recovery of an empty, blood stained earth, and blood stained garments give further support to the complainant version. When all these material pieces of evidence taken in juxtaposition, a prima facie case is made out against the accused/petitioner. The points urged at the Bar by learned defense counsel, if taken into consideration and any view is expressed thereon by this Court, it would not only touch the merits of the case, but would also prejudice the case of either side, which has time and again been discouraged and disapproved by the Superior Courts. The evidence of prosecution can not be tested in depth at bail stage, only tentative assessment is to be made.

8.  There is another police report available on record, which reveals that on the same time firing in between two parties were in progress and since the deceased was drug peddler, therefore, he may be killed by some body else. Perusal of the report shows that the police officials deputed near the Adda Tajazai Police Post, were not present at their duty, due to which accused could not be arrested at the spot and on explanation it was replied in shape of report that it was firing between the two groups. Further this report is not supported by any documentary or oral evidence. It is settled law that Courts are not bound by the ipsi dixit of police. Rather it can formulate its own opinion, in light of the evidence available on record. Hence, contention of learned counsel for petitioner that there are two different versions is not based on sound reasons and accused/petitioner cannot get its benefit at bail stage.

9.  After registration of case petitioner did not surrender, due to which proceedings under Section 204, Cr.P.C. and 87, Cr.P.C. were initiated and consequently challan under Section 512, Cr.P.C. was submitted, and statements of eight PWs were recorded in his absentia and on 27.11.2013, he has been declared as Proclaimed Offender. The occurrence took place on 13.03.2013 whereas accused was arrested on 9.4.2014 after a long absconsion of more than a year. It is settled principle that a fugitive from law loses some of his normal rights, such as procedural as well as substantial and bail may be declined merely on the basis of abscondence, irrespective of the merits of the case.

10.  For the reasons discussed above, on tentative assessment of the record, the accused/petitioner is prima facie connected with the commission of offence, which falls under the prohibitory clause of Section 497(1), Cr.P.C., hence in the circumstances, the present accused/petitioner is not found entitled for the concession of bail. Resultantly, this petition stands dismissed.

(A.S.)   Bail dismissed