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IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
PRESENT:
Mr. Justice Amin-ud-Din Khan
Mr. Justice Syed Hasan Azhar Rizvi
fAr kb
Criminal Petitions No.528-L and I068 -L of 2023
(Against orders dated OS.05.2023 and 06.09.2023, passed by the
Lahore High Court, Lahore in Criminal Miscellaneous Nos.22217-B and 41247-B of 2023)
Shaukat Ali
(in ell.P.No.528-L/2023)
Azeem Hassan Mushtaq
(in Cd.P.No. 1068-1,/2023)
.. .Petitioner(s)
Versus
The State through Prosecutor General,
Punjab, Lahore and Ali Ashraf
(in Cd.P.No.528-L/2023)
The State through Prosecutor General,
Punjab, Lahore and Shaukat Ali
(in CrI.P.No. 1068-L/2023)
.. .Respondent(s)
For the Petitioner(s) Mr. Irfan Sadiq Tarar, ASC
(in ell.P.No.528-L/2023)
Ch. Waseem Ahmed Gujar, ASC
(in Cd.P.No. 1068-L/2023)
Through video link Lahore
For Respondent No.2 Mr. Javed Imran Ranjha, ASC
along with petitioner
(in Cd.P.No.528-L/2023)
Through video link Lahore
Mr. Irfan Sadiq Tarar, ASC
(in (;rl.P.No.1068-1,/2023)
For the State Mr. Muhammad Jaffar,
Additional P.G. Punjab
Through video link Lahore
Date of Hearing 15.01.2024.
2
Cr.P.Nos.528-L & 1068-L/ 2023
JUDGMENT
Cr.P. No.528 -L of 2023:
Syed Hasan Azhar Rizvi, J. Through this petition filed under
Article 185(3) of the Constitution of the Islamic Republic of
Pakistan, 1973, the petitioner/complainant, namely Shaukat
Ali, assails the order dated 05.05.2023 passed by the Lahore
High Court by which post arrest bail was granted to the
respondent, namely, Ali Ashraf.
2. Succinctly, facts of the case are that the
petitioner/complainant lodged an FIR No. 192 dated
10.01.2023 registered under Sections 302, 34, 324, PPC at
Police Station Chung, District Lahore on the allegations that
the respondent along with his co-accused while armed with
respective weapons in furtherance of their common object
assaulted on the complainant party on IO.Ol.2023 at 7:30
p.m. in the area of Gujranwala Chung Punjgrain within the
territorial jurisdiction of the above referred police station and
thereby caused firearm injuries to Danish Ali, nephew of the
petitioner, who later on succumbed to the injuries at the spot.
The motive behind the occurrence is that Danish Ali deceased,
the complainant and others used to forbid the accused persons
from selling narcotics in the vicinity and due to this grudge,
the accused persons with their mutual consultation committed
murder of Danish Ali.
The respondent applied for the post arrest bail before the
Additional Sessions Judge, Lahore which was declined uide
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Cr.P.Nos.528-L & I068.L/2023
order dated 30.03.2023. Being aggrieved, the respondent
approached the Lahore High Court by filing Criminal
Miscellaneous No.22217-B of 2023 which was allowed uLde
order dated 05.05.2023 impugned herein.
3. Learned counsel for the petitioner/complainant
contends that the impugned order has been rendered without
touching the merits of the case; that the respondent/accused
has been nominated in the FIR with a specific role; that the
respondent is extending threats of dire consequences to the
petitioner; that the respondent is harassing the petitioner and
his witnesses not to pursue the case, thus misusing the
concession of bail; that the impugned order is against law and
facts; that the respondent has been declared guilty by the
investigating officer and that sufficient incriminating material
is available on the record to connect the respondent with the
commission of offence.
4. Learned Law Officer while supporting the
contentions raised by the learned counsel for the petitioner
submits that the recovery of weapon of offence has been
affected from the respondent. Whereas, learned counsel for the
respondent has faithfully defended the impugned order and
submitted that the empties allegedly recovered from the
respondent did not match with the alleged weapon of offence.
5. We have heard the learned counsel for the parties
so also the learned Law Officer at a considerable length and
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Cr.P.Nos.528-L & 1068-L/ 2023
scmlned the material available on the record with their able
assistance .
6. It reflects from the record that the respondent has
been nominated in the FIR with a specific role and the recovery
of weapon used in commission of offence has been affected
from the respondent. The medical evidence fully supports the
stance taken by the prosecution.
7. The learned Judge of High Court solely on the basis
of an opinion of the Investigating Officer has passed the
impugned order and granted post arrest bail to the
respondent. The petitioner as well as Tariq Sadiq son of
Muhammad Sadiq, eye witnesses, have fully implicated the
respondent while deposing that the respondent with the intent
to kill Danish Ali has made straight firing upon him.
Furthermore, after registration of FIR, the investigation was
handed over to one Imran Haider, Inspector, who failed to
investigate the case fairly/impartially and became partisan
with the accused persons and gave his opinion regarding non-
involvement of the accused persons in the offence. It is evident
from the statement of the petitioner recorded under Section
200 Cr.P.C. before the Additional Sessions Judge Lahore
available on the record that the petitioner/complainant moved
an application dated 28.03.2023 to the D.I.G. (Investigation)
Lahore for the change of investigation. However, given the fact
that the accused persons are highly influential, Investigating
Officer was reluctant to collect necessary evidence, as a
+
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Cr.P.Nos.528-L & I068-L/2023
consequence, complainant has lost the trust in the
investigation .
8. The complainant filed a private complaint before
the Judicial Magistrate, Lahore, which was, accordingly
forwarded to the Additional Sessions Judge Lahore vide order
dated 13.04.2023.
9. The learned Additional Sessions Judge Lahore IIttle
order dated 12.05.2023 found that sufficient incriminating
material is available against all the accused including the
dr
respondent. As regard the respondent being a highly influential
person WHO is extending threats of dire consequences to the
petitioner, we observe that it amounts to the misuse of
concession of bail, thus in the circumstances, the impugned
order cannot sustain. This Court has dealt with the
proposition qua cancellation of bail in the case reported as
Amir Faraz versus The State (2023 SCMR 308), relevant
extracts there-from are reproduced below for ease of
reference:
“6. ... ... ... ... ... ... ... No doubt,the opinion of the Investigating
OffIcer has some persuasive value, if the same is based upon
a strong and concrete material which is lacking in the present
case .
8. It is settled that in criminal matters, each case has its
own peculiar facts and circumstances and the same has to be
decided on its own facts. In the present case, the petitioner is
specifIcally nominated in the FIR for causing fIrearm injury on
the head of the deceased and the said injury was spelt out
from the medical evidence. He was found involved in the
commission of offence in the fIrst investigation and the ipse
dixit of the second Investigating Officer, especially in the above
mentioned circumstances, had no persuasive value. Although
q
6
Cr.P.Nos.528-L & I068-L/2023
learned counsel for the respondent has relied upon certain
judgments and even the learned counsel for the petitioner has
also placed reliance on certain judgments qua opinion of the
Investigating OfFIcer but we observe that in all the said
judgments, the basic thing, which has to be considered by the
Court, is whether the said opinion is based upon cogent and
concrete material. In the absence of any material/data no
credit can be given to such ipse dixit of the Police OffIcer. If
the plea i.e. ipse diSt of the police,on the basis of which the
respondent has been released on bail is accepted, the same
would amount to discredit the version of the eye-witnesses
at this initial stage of the case which of course is not
permissible in the peculiar circumstances of the case. The
practice adopted by the learned High Court through the
impugned order is not appreciable. The High Court while
granting bait to the respondent has ignored the relevant
material indicating, prima-facie, involvement of the accused
in the commission of the crime and took into account
irrelevant material which had no nexus to the question of grant
of bail to the accused. It is settled law that bait granting order
could be cancelled if the same was perverse. An order which is,
inter alia, entirely against the weight of the evidence on record,
by ignoring material evidence on record indicating, prima facie,
involvement of the accused in the commission of crime, is
always considered as a perverse order, which is in present
case as nraterial evidence on the record brought by
prosecution promptly, was not given any weight by the High
Court and a perverse order was passed upon a baled opinion of
second Investigating O#icer.
11. ... ... ... ... .... ... ... Even otherwise, no hard and fast rule can
be laid down that bail should not be cancelled merely for the
reason that the trial has commenced or is likely to commence
because every case is to be examined in the light of its own
facts, and the crucial question that arises for determination
would be as to whether a person is entitled to grant of bail
under the provision of section 497, Cr.P.C. which, as
already observed, the respondent was not entitled to, especially,
when there is suffIcient material available against him in the
shape of ocular account as well as the medical evidence and the
circumstance that he along with other accused committed the
murder of his NO real brothers. The judgments relied upon by
the learned counsel for the respondent, to this eJect, having
diferent facts and circumstances, could not be applied in this
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Cr.P.Nos.528-L & I068-L/ 2023
case
12. All the above mentioned circumstances have been
ignored by the High Court while granting bait to the
respondent, record to that extent has not been examined by
the High Court and same order can be considered as perverse,
because the material collected by the fIrst Investigating OffIcer,
on the day fIrst, was totally ignored by the High Court while
granting bait in such a double murder case.
10. For what has been discussed above, this petition is
converted into an appeal; allowed; the impugned order dated
05.05.2023 is set aside and the bail granted to the respondent
is hereby recalled/cancelled.
11. The above observations are tentative in nature and
will have no bearing upon subsequent proceedings during the
trial as the trial Court is required to decide the case on its own
merits without being influenced by any observation made in
this order.
Cr.P. No. 1068-L of 2023:
12. After arguing the matter at some length, learned
counsel for the petitioner opts to withdraw this petition.
Dismissed as having been withdrawn.
Islamabad the
1 5th January, 2024.
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