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Petitioner: NAZIR AHMED and another VS Respondent: THE STATE and others
Court Name: Supreme Court of Pakistan Judge(s): Asif Saeed Khan Khosa, Gulzar Ahmed, Ijaz Ahmad Chaudhry Title: NAZIR AHMED and another vs THE STATE and others Case No.:Criminal Review Petitions Nos. 8-L and 10-L of 2013Criminal Petition No,896-
JUDGMENT
Reported As: PLD 2014 Supreme Court 241 Result: Order accordingly Judgment JUDGMENT ASIF SAEED KHAN KHOSA, J.---The jurisdiction of this Court, as is evident from the provisions of Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973, is not just to decide questions of law but it also extends to enunciating principles of law which decisions and principles are binding on all other courts in the country. The principles of law contemplated by Article 189 include principles regulating the practices in vogue in the field of law and some of such practices and the principles enunciated in those regards are the subject of the present judgment. 2. The facts forming the basis for passage of the judgment of this Court under review admit of no ambiguity and the already settled principles of practice and propriety applicable thereto pose no difficulty of comprehension but the judgment under review has been taken exception to not only by the litigant affected by that judgment but also by the learned Judge of the Lahore High Court, Lahore whose order was set aside by this Court through the said judgment. The matter of a litigant filing a review petition before this Court is run of the mill but a Judge of a High Court approaching this Court in person and seeking review of a judgment of this Court is surely out of the ordinary and it may raise many an eyebrow in view of the provisions of Article VI of the Code of Conduct prescribed by the Supreme Judicial Council adherence to which a Judge of a High Court swears while making oath of his office. The said Article of the Code of Conduct reads as follows:
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"A Judge should endeavour to avoid, as far as possible, being involved in litigation either on his own behalf or on behalf of others." ' In this peculiar, and rather disturbing, backdrop we have attended to different aspects of these review petitions with utmost care and have decided to restate some of the relevant principles of law and practice with clarity so that in future no Judge may maintain that he had difficulty in comprehending or applying the same. 3. The facts of the case are that one Muhammad Islam Advocate was murdered and in that respect Muhammad Siddique complainant (respondent No, 2 herein) had lodged F.I.R. No, 733 at Police Station Baseerpur, District Okara on 29-10-2008 for offences under sections 148, 302, 149 and 109, P.P.C. In the F.I.R. The complainant had implicated six persons as the culprits including Nazir Ahmed (petitioner in Criminal Review Petition No, 8-L of 2013) and one Madad Ali and according to the F.I.R. Nazir Ahmed petitioner had caused multiple firearm injuries in the abdomen of the deceased whereas Madad Ali co-accused had caused firearm injuries on the chest and other specified parts of the body of the deceased. During the investigation Nazir Ahmed petitioner and Madad Ali co-accused were opined by the police to be innocent and they were not even arrested which prompted the complainant to file a private complaint in respect of the same incident and against the same accused persons who had already been nominated in the F.I.R.. After a full- dressed trial conducted in the private complaint the learned Additional Sessions Judge, Depalpur, District Okara found both Nazir Ahmed petitioner and Madad Ali co-accused guilty of the murder and vide judgment dated 19-5-2011 he convicted them for an offence under section 302(b), P.P.C. Read with section 34, P.P.C. And sentenced them to imprisonment for life each as Ta'zir besides ordering them to pay a sum of Rs,1,00,000/- each to the heirs of the deceased by way of compensation under section 544-A, Cr.P.C. Or in default of payment thereof to undergo simple imprisonment for six months each. The benefit under section 382-B, Cr.P.C. Was extended to them. Nazir Ahmed petitioner and Madad Ali co-convict assailed their convictions and sentences before the Lahore High Court, Lahore through Criminal Appeal No, 1082 of 2011 jointly filed by them. During the pendency of that appeal Madad Ali co-convict filed Criminal Miscellaneous No,1 of 2011 seeking suspension of his sentence and release on bail which application was allowed by a learned Judge- in-Chamber of the Lahore High Court, Lahore (Sayyed Mazahar Ali Akbar Naqvi, J.) on 23-1-2012 on the grounds that there was previous enmity between the parties; Madad Ali was found by the police to be innocent; the complainant had filed his private complaint with a delay of six months; and the firearm injuries on some specified parts of the body of the deceased attributed to Madad Ali in the F.I.R. Were non-existent in the Post-mortem Examination Report pertaining to the deadbody of the deceased and in his private complaint the complainant had changed the locale of the injuries allegedly caused by Madad Ali so as to bring them in line with the medical evidence. The operative part of the order dated 23-1-2012 reads as under: "6. There is no denial to this factum that the petitioner is nominated in the F.I.R. With specific role, however, previous enmity between the parties is also an admitted fact. During the course of investigation, the petitioner was found innocent by the police and as such he was let off. In view of the premium of innocence, the complainant filed private complaint with the delay of six months, for which no plausible explanation has been rendered by the complainant and in the complaint the complainant has changed his stance qua locale of injuries ascribed to the petitioner. There is contradiction in the ocular as well as medical ocular account. Keeping in view the dictum of law laid down in the cases of 1994 SCMR 453 (Muhammad Afzal and another v. The State), 2006 YLR 1953 (Muhammad Waheed Akhtar v. The State) and 2008 MILD 396 (Fayyaz Maqsood and 3 others v. The State), this Court is persuaded to accept this petition and suspend the sentence awarded to the petitioner and admit him to bail pending disposal of the main appeal subject to his furnishing
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bail bonds in the sum of Rs,1,00,000/- (Rupees one lac only) with one surety in the like amount to the satisfaction of the Deputy Registrar (J) of this Court." ' The said order of the Lahore High Court, Lahore was challenged by Muhammad Siddique complainant before this Court through Criminal Petition No, 95-L of 2012 which petition was dismissed by this Court on 14-3-2012 as having been withdrawn. After suspension of Madad Ali co- convict's sentence and his admission to bail Nazir Ahmed petitioner filed Criminal Miscellaneous No, 01 of 2012 before the Lahore High Court, Lahore seeking the same relief for himself but that application was dismissed by another learned Judge-in-Chamber of the said Court (Abdus Sattar Asghar, J.) on 20-2-2012 for non-prosecution. The order dated 20-2-2012 reads as follows: "Despite repeated calls no one entered appearance on behalf of the petitioner. Name of learned counsel for the petitioner appears in the cause list but there is no intimation with regard to his absence. 2. Dismissed for non-prosecution." ' Subsequently Nazir Ahmed petitioner made his second attempt for the same relief through Criminal Miscellaneous No,2 of 2012 which application was dismissed by Sayyed Mazahar Ali Akbar Naqvi, J. On 11-4-2012 with the following order: "Learned counsel for the petitioner, after arguing the case at some length, wishes to withdraw the instant petition. Dismissed as withdrawn." ' Undeterred by failure of his two earlier applications for suspension of sentence and release on bail Nazir Ahmed petitioner made his third attempt for obtaining the same relief through Criminal Miscellaneous No,3 of 2012 which was not filed through the original learned counsel who had filed and represented him in the earlier two applications but was filed through a different learned counsel and this time the attempt was crowned with success as the same learned Judge-in- Chamber of the Lahore High Court, Lahore who had dismissed the second application of the petitioner for the same relief suspended his sentence and released him on bail on 19-11-2012. The operative part of the order dated 19-11-2012 passed by Sayyed Mazahar Ali Akbar Naqvi, J. Reads as follows:-- "This is the third petition on the subject. The first one bearing Crl. Misc. No, 01/2012 was dismissed for non-prosecution vide order dated 20-2-2012, whereas the second petition bearing Crl. Misc. No, 2 of 2012 was dismissed as withdrawn vide order dated 11-4-2012 6. From the perusal of the record it reveals that the petitioner was nominated in the F.I.R. With specific role but during the course of investigation, he was found innocent and was let off by the investigating agency and thereafter, the complainant filed private complaint after a delay of six months for which no plausible explanation has been rendered. Moreover, there is previous enmity between the parties. The role ascribed to the .Petitioner is that he while armed with .222 bore Rifle fired two fire shots, which hit to Muhammad Islaam (deceased), whereas the role ascribed to the co-accused, Madad Ali, is that he also made two successive fire shots with his rifle .222 bore, which hit his chest. Thus, the role ascribed to the petitioner is identical to that of his co-accused, namely Madad Ali, whose sentence has already been suspended by this Court vide order dated 23-1-2012, passed in Crl. Misc. No,1 of 2011, filed in Crl. A. No,1082 of 2011, which was assailed before the august Supreme Court of Pakistan through Criminal Petition No,98-L of 2012 and the same was dismissed as withdrawn. 7. For the foregoing reasons, this Court is persuaded to accept this petition, suspend the sentence awarded to the petitioner and admit him to bail pending disposal of the main appeal subject to his furnishing bail bonds in the sum of Rs,1,00,000/- with one surety in the like amount to the satisfaction of Deputy Registrar (Judicial) of this Court." ' That order passed by the Lahore High Court, Lahore on 19-11-2012 was assailed before this Court by Muhammad Siddique complainant through Criminal Petition No, 896-L of 2012 which petition was
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converted into an appeal and was allowed by this Court, on 3-1-2013, the impugned order was set aside and bail allowed by the Lahore High Court, Lahore to Nazir Ahmed petitioner was cancelled. The relevant parts of the judgment passed by this Court on 3-1-2013 are reproduced below: "6. The complainant in his private complaint ascribed respondent No, 2 the role of causing two injuries on the person of the deceased Muhammad Islam on his abdominal area and Madad Ali co-convict made two successive fire shots with his .222 bore rifle which hit the deceased on his chest. Both the aforesaid accused having been found guilty by the learned trial Court were convicted under section 302(b), P.P.C. And sentenced to imprisonment for life. Madad Ali co- convict of respondent No,2 filed Crl. Misc. 1 of 2011 in Crl. Appeal No,1082 of 2011 for suspension of his sentence before the learned Lahore High Court, Lahore which stood allowed on 23-1-2012 whereby his sentence was suspended. Thereafter, respondent No, 2 moved an application (Crl. Misc. 1 of 2012) for suspension of his sentence which stood dismissed for non-prosecution as is evident from the certificate given by the learned counsel for respondent No, 2 at the bottom of Crl. Misc. 3 of 2012. Thereafter, respondent No, 2 filed Crl. Misc. 2 of 2012 before the learned Lahore High Court, Lahore, which stood dismissed as withdrawn but on the same grounds the third application (Crl. Misc. 3 of 2012) was allowed by the learned Lahore High Court, Lahore by totally ignoring the principles for suspension of sentence and other material available on record by suspending the sentence of respondent No, 2 through impugned order. The main ground taken by the learned Judge of the Lahore High Court for suspending the sentence of respondent No, 2 was rule of consistency having similarity of roles ascribed to respondent No, 2 as well as Madad Ali co-convict, as such, the impugned order has been passed in violation of the law laid down by this Court in the case of "The State through Advocate General N.-W.F.P. v. Zubair and 4 others" (PLD 1986 Supreme Court 173) wherein it has been held as under: 8. It might be useful to mention here that the second or the subsequent bail application to the same Court shall lie only on a fresh ground namely, a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or was not pressed, it cannot be considered as a fresh ground and made the basis of any subsequent bail application. We may also point out, with respect to the learned Judge who dealt with the second bail application that the mere fact that the learned Judge who had rejected the first bail application of the respondents with the observation that as far as the remaining petitioners (the respondents herein) are concerned no case had been made out for their release on bail, does not mean that the application had not been disposed of on merits. It must be assumed that he had considered all the pleas or grounds raised by the applicant's counsel before him and that the same had not found favour with him." ' In such circumstances it is apparent on the face of record that the ground of similarity of role and rule of consistency was available to the petitioner at the time of filing first application for suspension of sentence but the learned Judge has totally ignored it. From the tenor of impugned order it appears that the learned Judge of the Lahore High Court while suspending the sentence of respondent No, 2 has not exercised discretion in a proper and judicious manner rather has not at all adverted to the guidelines laid down in Zubair's case (supra). 7. In view of the above, we while converting the instant petition into an appeal allow the same, set aside the impugned order dated 19-11-2012 passed by the Lahore High Court, Lahore in Crl. Misc. 3 of 2012 in Crl. Appeal No, 1082 of 2011 and cancel the bail granted to respondent No, 2. 8. Before parting with this order we may observe that discretion exercised by the learned Judge while passing the impugned order in the instant case has appeared to us to be somewhat colourable because after dismissal of second application for suspension of sentence bearing the same ground the only difference in the respondent's third application for the same relief was a
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different learned counsel for that respondent. Office is directed to send a copy of this order to the learned Judge of the Lahore High Court, Lahore for his information." ' Hence, the present review petitions before this Court. Criminal Review Petition No, 8-L of 2013 has been filed by Nazir Ahmed petitioner seeking restoration of his bail and Criminal Review Petition No, 10-L of 2013 has been preferred by Sayyed Mazahar Ali Akbar Naqvi, Judge, Lahore High Court, Lahore praying for expunction of some observations concerning him made by this Court in paragraph No,8 of the judgment under review. 4. In support of the review petition filed by Nazir Ahmed petitioner it has been argued by Mr. Muhammad Ahsan Bhoon, ASC that keeping in view the facts and circumstances of the case as well as the rule of consistency the learned Judge-in-Chamber of the Lahore High Court, Lahore was quite justified in suspending the sentence of Nazir Ahmed petitioner and in admitting him to bail during the pendency of his appeal, particularly when the case against the said petitioner for such relief was at par with that of his co-convict namely Madad Ali who had already been granted the same relief by the same Court. Mr. Bhoon has also argued that in entertaining and deciding the relevant application of Nazir Ahmed petitioner on its merits the learned Judge-in-Chamber of the Lahore High Court, Lahore had followed the law declared by this Court in the cases of Muhammad Riaz v. The State (2002 SCMR 184) and Ali Hassan v. The State (2001 SCMR 1047) and, therefore, the legitimate exercise of jurisdiction and discretion in the matter by the learned Judgein-Chamber of the Lahore High Court, Lahore ought not to have been interfered with by this Court through the judgment under review. While referring to the case of Makhdoom Javed Hashmi v. The State (2008 SCMR 165) Mr. Bhoon has submitted that in an appropriate case this Court may suspend the sentence of a convict and grant him bail even through exercise of review jurisdiction of this Court. Mr. Bhoon has lastly maintained that the contents of paragraph No,8 of the judgment under review tend to cast aspersions not only upon the learned Judge-inChamber of the Lahore High Court, Lahore but also upon him as he was the counsel for Nazir Ahmed petitioner in the said petitioner's third application for suspension of sentence and bail which application was allowed by the Lahore High Court, Lahore. He, therefore, not only seeks review of the judgment of this Court under review but also prays for expunction of the relevant observations made by this Court in that judgment. 5. Khawaja Haris Ahmad, Sr. ASC appearing for Mr. Justice Sayyed Mazahar Ali Akbar Naqvi petitioner has submitted that he only seeks expunction of the remarks made by this Court in paragraph No, 8 of the judgment under review and that he has nothing to say regarding the merits or otherwise of Nazir Ahmed petitioner's case for suspension of sentence and bail. The main thrust of his submissions has been that the case of The State through Advocate-General, N.-W.F.P. v. Zubair and 4 others (PLD 1986 SC 173) was not relevant to the case in hand because nothing had been said in that precedent case about maintainability or otherwise of a subsequent application for bail after dismissal of an earlier application for bail as having been withdrawn. According to Mr. Khawaja the only precedent cases relevant to the issue involved in the present case were the cases of Muhammad Riaz v. The ,State (2002 SCMR 184) and Ali Hassan v. The State (2001 SCMR 1047) and the relevant order passed by Sayyed Mazahar Ali Akbar Naqvi, J. Was in accord with the principle laid down in the said precedent cases. Mr.. Khawaja has maintained that till the passage of the judgment under review different Honourable Judges of different High Courts of the country had been taking the same view of the matter as was taken by Sayyed Mazahar Ali Akbar Naqvi, J. In the order set aside by this Court through the judgment under review and even Sayyed Mazahar Ali Akbar Naqvi, J. Had taken the same view in seven other orders passed by him in different cases decided by him in the year, 2012. In this respect he has placed on the record copies of the said seven orders passed by Sayyed Mazahar Ali Akbar Naqvi, J. And has also referred to the cases reported as Wajid All v. The State (2009 PCr.LJ 275), Mustaqeem v. The State (2005 PCr.LJ 661), Rasheed Ahmad v. The State (2007 MLD 1440), Muhammad Mansha v. The State (2006 PCr.LJ 47),
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Muhammad Asif alias Kala v. The State (2007 PCr.LJ 1292), Muhammad Idrees v. The Site (2005 MLD 899), M. Latif v. The State (1996 MLD 2041) and Akbar Ali v. Jamshaid All and others (2012 PCr.LJ 1301). Mr. Khawaja has gone on to submit that there was no malice on the part of Mr. Justice Sayyed Mazahar Ali Akbar Naqvi petitioner in passing the relevant order in the case of Nazir Ahmed petitioner and the mistake, if any, in the bona fide order passed by him in the said case could only be attributed to confusion and lack of proper understanding of the true, import of the principle laid down in the above mentioned cases of Muhammad Riaz v. The State (2002 SCMR 184) and All Hassan v. The State (2001 SCMR 1047). He has, therefore, maintained that the remarks or observations made by this Court in paragraph No, 8 of the judgment under review were uncalled for and has urged that this Court may order expunction of the same. In the end Mr. Khawaja has submitted that ordinarily no adverse remark or observation is to be made or recorded in a judgment of a court without issuing notice to the concerned person or before affording him an opportunity of being heard in the relevant connection and in this respect he has placed reliance upon the cases, of Muhammad Punhal v. Abdul Wahid Abbasi and another (2003 SCMR 1406), In the matter of expunging certain remarks made by a Magistrate against Additional District and Sessions Judge, Lyallpur (PLD 1950 Lahore 34), Syed All Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf (PLD 1963 SC 51) and Malik Firoz Khan Noon, Prime Minister's House, Karachi v. The State (PLD 1958 SC (Pak.) 333). 6. The learned counsel for Muhammad Siddique complainant has maintained that the judgment of this Court under review is a just and fair judgment besides being a considered judgment and the same addresses and cures a serious malady creeping into conducting of criminal cases and therefore, the same does not call for a review. Regarding the scope of review jurisdiction he has referred to the case of Muhammad Riaz v. The State (2011 SCMR 1019). He has complained that despite cancellation of his bail by this Court Nazir Ahmad petitioner has so far managed to avoid his arrest although no interim relief has been granted to him by this Court during the pendency of the captioned review petitions. The learned Additional Prosecutor-General, Punjab appearing for the State has supported the learned counsel for the complainant and has added that these review petitions essentially seek rehearing of the merits of the case which exercise lies beyond the scope of review jurisdiction of this Court. 7. After hearing the learned counsel for the parties and going through the relevant record with their assistance we find that there are many issues involved in these review petitions and, thus, in the background of the facts of this case we have decided to discuss and resolve these issues one by one in the light of the principles concomitant thereto laid down by this Court from time to time. We find that the first issue involved in the review petitions in hand is as to whether the Considerations weighing with the learned Judge-in-Chamber of the Lahore High Court, Lahore for suspending the sentence of Nazir Ahmed petitioner and for releasing him on bail during the pendency of his appeal were valid considerations for grant of the said relief on the merits of the case. We note in this context that the reasons prevailing with the learned Judge-in-Chamber of the Lahore High Court, Lahore for suspending the sentence of Nazir Ahmed petitioner and for admitting him to bail were that in the Challan case the police had found the petitioner innocent; the complainant had filed his private complaint after a delay of six months; there was previous enmity between the parties; and the sentence of a co-convict of the petitioner namely Madad Ali, attributed a role identical to that alleged against the petitioner, had already been suspended and he had been admitted to bail by the Lahore High Court, Lahore through an order which had not been interfered with by this Court. The facts and circumstances of the case, however, show that none of the said reasons provided a valid or sufficient ground for suspending the sentence of Nazir Ahmad petitioner and for his admission to bail during the pendency of his appeal before the Lahore High Court, Lahore. It ought to have been appreciated by the learned Judge-in-Chamber of the Lahore
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High Court, Lahore that any declaration of innocence of Nazir Ahmad petitioner recorded by the police in the Challan case was irrelevant as the petitioner's trial had been conducted in the complainant's private complaint and not in the Challan case and even otherwise opinion of the police regarding the petitioner's innocence was inadmissible in evidence being irrelevant besides such opinion having already paled into further irrelevance in view of the judicial verdict recorded by the learned trial court in respect of the petitioner's guilt. The learned Judge-in-Chamber of the Lahore High Court, Lahore had also failed to appreciate that the complainant had filed his private complaint when the investigating agency had disappointed and frustrated him on account of its alleged collusion with the accused party and the reasons for the delay in filing of the private complaint had been explained by the complainant before the learned trial court which reasons had been accepted by it as justified. Mere existence of enmity between the parties was hardly a valid ground for suspending the petitioner's sentence and…
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