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Official Citation: 2023 SCMR 181
Court / Jurisdiction: Islamabad High Court
Year of Decision: 2025
Decision Date: 2025-08-01
Parties: Syed Qalb e Abbas vs The State and another.
Ruling Summary: This decision was rendered by the Islamabad High Court on 2025-08-01, officially reported as 2023 SCMR 181. In this matter between Syed Qalb e Abbas and The State and another., the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2023 SCMR 181
Court Name: Islamabad High Court Judge(s): Mohsin Akhtar Kayani Title: Syed Qalb e Abbas vs The State and another. Case No.: Crl. Appeal No.351-2024 Date of Judgment:2025-08-01 Reported As: 2025 IHC 534 Result: Appeal Allowed
JUDGMENT
JUDGMENT MOHSIN AKHTAR KAYANI, J: Through the instant appeal, the appellant has assailed the judgment dated 30.09.2024 passed by the Special Court (Official Secrets), Islamabad, in case FIR No.03/2021 dated 15.02.2021, registered under Sections 3 and 4 of the Official Secrets Act, 1923 read with Section 409 PPC, at Police Station CTW, FIA, Islamabad. Through the impugned judgment, the appellant has been convicted and sentenced to three years' rigorous imprisonment under Section 3(3) of the Official Secrets Act, 1923, with the benefit of Section 382-B Cr.PC. 2. The brief facts referred in the instant case are that the complainant, Ijaz Ahmed Sheikh, Additional Director, FIA CTW (PW-07), lodged a complaint (Exh.PR) stating that on 15.02.2021, while posted as in-charge at PS FIA CTW, he received information from credible sources about a secret meeting between a foreign diplomat/agent and Syed Qalb e Abbas (the accused/appellant), who was then serving as President and an employee in the Ministry of Planning and Special Initiatives, Islamabad. The meeting was allegedly intended for the communication of secret information prejudicial to the safety and security of the State. 3. Acting upon this information, the complainant constituted a raiding party and proceeded to the designated location behind the PSO petrol pump at G-8 Markaz, Islamabad. The source informed him to wait as the suspect had momentarily left in a white Land Cruiser, bearing registration number QM-162, with tinted windows. 4. Upon the vehicle's return, the appellant was dropped off in the parking area in front of UBL Bank, G-8 Markaz, Islamabad. As he attempted to approach his parked black Honda car, Registration No.AJQ-301, he was intercepted and apprehended by the complainant and his team.
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5. According to Ejaz Ahmed Sheikh, PW-07, the appellant failed to offer any plausible explanation regarding the purpose of his meeting. A personal search was conducted, which led to the recovery of the following items: a memory card, USB, cash amounting to Rs.110,000, CNIC, service card, arms license, ATM card, mobile phone, keys, vehicle registration book, driving license, and other miscellaneous items. 6. The complaint was transmitted to the police station through PW-04, Constable Abdul Manan, and upon submission, FIR No.03 dated 15.02.2021 was registered accordingly. 7. The investigation was entrusted to Inspector Muhammad Noman (PW-08), who issued various letters to the Ministry of Foreign Affairs and the Ministry of Planning and Special Initiatives to verify the appellant's credentials. He submitted the recovered USBs and mobile phone for forensic analysis, recorded the statements of witnesses, verified vehicle registration No. QM-162 from the Excise and Taxation Office, Islamabad, and after receiving the forensic report, submitted the challan under Section 173 Cr.PC before the Court. 8. The trial Court framed the charge on 28.05.2021 under Sections 3 and 4 of the Official Secrets Act, 1923, read with Section 409 PPC, to which the appellant pleaded not guilty. The prosecution examined 12 witnesses (PWs) and one Court witness (CW). The statement of the appellant was recorded under Section 342 Cr.P.C, after which the Court convicted him and awarded a sentence of 03 years' rigorous imprisonment under Section 3 of the Official Secrets Act, 1923. Hence, this appeal. 9. Learned counsel for the appellant submits that the trial Court has failed to properly appreciate the legal requirements regarding the search and seizure of the allegedly incriminating material. It is argued that the appellant was posted on the China Desk at the Ministry of Foreign Affairs, while performing his official duties, he was unlawfully abducted by the law enforcement agencies about a month prior to the registration of the instant FIR. The appellant was subjected to enforced disappearance, upon which his wife, Ms. Huma Abbas, filed a writ petition bearing No. 146/2021, and an FIR under Section 365 PPC was also lodged. After nearly 25 days of illegal confinement, the appellant was recovered and released and later on falsely implicated by FIA CTW in this case under fabricated allegations. 10. It is further submitted that the appellant never met any foreign agent, nor did he communicate any secret or confidential information. No evidence of such communication and sharing of information has been produced. The identity of the alleged foreign agent was never disclosed nor verified during the investigation. 11. Learned counsel for the appellant indicated more flaws in the investigation and asserted that the three main allegedly recovered items including mobile phone, USB, and SIM were not produced or exhibited during trial. Even the bag from which the amount of Rs.110,000 was allegedly recovered was also not exhibited as a piece of evidence. The statement of appellant under Section 164 Cr.PC was recorded on the third day of the appellant's arrest, and he was not remanded to judicial custody prior to such recording, which raises serious questions about the voluntariness of the statement. It is further contended that there are glaring contradictions and inconsistencies among the statements of the prosecution witnesses, which render the prosecution case doubtful and fabricated. 12. Conversely, the learned Special Prosecutor F.I.A opposed the contentions raised by the appellant's counsel. He submits that the appellant was found in possession of multiple classified documents. The digital forensic report confirmed the presence of confidential material in the recovered mobile phone and SIM, and the report was duly exhibited on record and corroborated by Muhammad Sibtain Ahmed Khan, Additional Director (Forensics), CW-01. Hence, according to the prosecution, the appellant's conviction is well-founded, and no doubt arises regarding his guilt. 13. Arguments heard. Record perused.
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14. Perusal of the record reflects that the appellant was apprehended by Ijaz Ahmed Sheikh (PW- 07), Additional Director, FIA CTW Islamabad, based on spy information, with the allegation that the appellant, being an official of the Government of Pakistan, was meeting a foreign agent. Consequently, a raiding team was constituted on 15.02.2021, pursuant to the secret information. 15. The raid was conducted behind the PSO petrol pump located at G-8 Markaz, Islamabad, where the appellant was reportedly dropped off from a white Land Cruiser bearing registration No.QM-162, allegedly driven by the foreign agent. However, during cross-examination, PW-07 did not mention the mobile number of the appellant in his examination-inchief. Furthermore, he failed to produce any copy of the Roznamcha report indicating his departure from the police station after receiving the spy information. 16. PW-07 also did not provide details of the raiding team through any entry in the Roznamcha. He was unable to confirm the make and model of the Land Cruiser, allegedly driven by the foreign agent, and admitted that no site plan was prepared. While acknowledging that the front windscreen of the vehicle was not tinted, he claimed that the remaining windows were tinted, yet he failed to describe the physical features or facial characteristics of the alleged foreign agent or the country of origin of such agent. 17. The most crucial aspect of the case was the communication of sensitive information which has not been substantiated by PW-07. The mode and manner of transmission of the sensitive information are neither mentioned in the complaint nor in his examination-in-chief. 18. PW-07 also admitted that no seizure memo (recovery memo) was prepared by him, and further conceded that neither he nor his officials made any serious attempt to stop or intercept the Land Cruiser allegedly driven by the foreign agent. 19. The investigation was conducted by Muhammad Noman (PW-8), Inspector, FIA CTW, who essentially reiterated the version of PW-7. However, his examination-in-chief is also silent regarding the recovery of the memory card, USB, CNIC, service card, arms license, ATM card, mobile phone, keys, registration book, and other documents allegedly recovered at the time of arrest from appellant. None of them were exhibited during trial. Now it is settled position of law that when material is neither produced nor exhibited, it would be presumed that it does not exist at all as held in 2023 SCMR 181 (Ahmed Ali Vs. State). 20. As per the Investigating Officer, the appellant was produced before the concerned Court on 16.02.2021 for physical remand. However, the appellant was sent to judicial custody on 18.02.2021 after recording of a confessional statement under Section 164 Cr.PC. No explanation was offered as to why the appellant was not sent to judicial custody prior to the recording of such statement, this omission indicates the non-voluntariness of confessional statement under Section 164 Cr.P.C. It is also an admitted fact that the confessional statement of the petitioner was not recorded in the language in which it was originally made, thereby breaching a mandatory legal requirement as stipulated under Section 364(1) of the Code of Criminal Procedure and Rule 11, Chapter 13 of the Lahore High Court Rules as held in MLD 2001 [Lahore] 807 (Muhammad Yar Vs. The State), that a "confessional statement shall be recorded in actual words". The parameters to record confessional / voluntary statement under section 164 Cr.P.C. before the Magistrate are enlisted in detail in 2021 SCMR 873 (The State Vs. Ahmer Omer Sheikh and others), which have not been observed. 21. PW-08 admitted that he had addressed multiple letters to various ministries including the Ministry of Foreign Affairs for verification of the credentials and documents of the appellant. As per forensic report Exh.PL and Exh.PM, a reply was received confirming that the documents recovered during analysis were classified as confidential and secret. 22. It is further stated by PW-8 that the vehicle used by the foreign agent, i.e., QM-162, was verified through the Excise and Taxation Office (ETO) Exh.PK, which confirmed that the said registration
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number was actually allotted to a Mitsubishi Lancer car, not to a Land Cruiser. However, no documentary proof was provided under any law to justify the use of temporary or fake number plates by diplomatic vehicles. 23. During cross-examination, PW-08 conceded that he did not make any entry in the daily Roznamcha regarding his movement in connection with the raid. Whereas, under Police Rules, 1934, it is mandatory for every police official to record the entry of their movement in daily diary and its non-production causes serious doubts in prosecution case as held by Division Bench of Peshawar High Court in judgment reported as 2023 MLD 2014 (Shakeel Ahmed Vs. The State). He further admitted that he could not verify whether the front screen of the Land Cruiser was damaged or tinted. Neither did he take possession of the said vehicle, nor any site plan was prepared. As per Exh.PK, the vehicle was a black Mitsubishi model 2013, bearing altered registration number QM-162. 24. The I.O also admitted that no private person was associated as an independent witness during the proceedings concerning either the arrest of the accused or the recovery of items. He was also unable to recall the exact time when the recovery memo (Exh.PA) was prepared. In terms of Section 103 of the Cr.P.C., the law mandates the two or more inhabitants of the locality must be associated during search and recovery proceedings, to ensure fairness and eliminate doubts. The failure to associate any private witness from the locality constitutes a serious legal lapse. The Hon'ble Supreme Court in 2017 SCMR 898 (Muhammad Ismail v. The State) has categorically held that failure to associate independent witness of the locality casts doubt on the credibility of the alleged recovery 25. He further confirmed that no mobile number was taken into possession from the accused. The most critical flaw in the recovery process is that the recovery memo does not mention whether the articles were sealed or marked with any official seal or insignia. Non-sealing of the recovered items undermines sanctity of the entire recovery process because the adverse presumption of tempering gets attached to the recovery. The only purpose behind immediate sealing is to avoid evidence contamination or tempering with the evidence. This major defect is fatal in the light of law laid down in the case reported as PLD 2006 [Karachi] 698 (Khan Bacha Vs. The State) where it was held that failure to seal and secure recovered items raises serious doubts about the recovery proceedings and cannot be relied upon. 26. The I.O further failed to verify the origin or nationality of the alleged foreign agent. The complaint and FIR are completely silent on this crucial aspect as well. Not even a single letter was addressed to the Ministry of Foreign Affairs for initiating proceedings or verification of the said foreign agent. 27. The other most crucial aspect of the case is the communication of sensitive information, which remained unsubstantiated. The I.O candidly admitted that the complaint and F.I.R, are silent regarding the mode and manner of the alleged transfer of such sensitive information from the accused to the foreign agent. He also conceded that he is not aware of the address or identity of the foreign agent. 28. In a case where the main allegation pertains to the communication of sensitive information, it becomes crucial for investigation officer to establish the telephonic or electronic communication took place between the accused and the alleged foreign agent through the Call Data Record (CDR) of the accused, or verify the location, which are missing in this case. 29. The Investigating Officer admitted that no CDR of the accused was obtained, nor was any request made to the mobile service provider to obtain call logs, messages, or tower location data, particularly for the date of occurrence, i.e., 15.02.2021. 30. In the absence of such records, the prosecution has failed to establish any electronic link between the appellant and the alleged foreign agent. No effort was made to verify the location of the accused through his mobile phone data to place him at the scene of the alleged meeting.
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31. It is now well settled that electronic communication must be substantiated by forensic or telecom records, including CDR and GPS data, especially in cases involving allegations under the Official Secrets Act. The failure to secure such essential records renders the entire investigation incomplete and unreliable. 32. In view of the above discussion and the evidence brought on record, the following admitted facts emerge: i. The appellant, Syed Qalb e Abbas was abducted by unknown individuals on 12.01.2021. A criminal case was registered at Police Station Sabzi Mandi on the complaint of the appellant's brother. ii. It is alleged that on 10.01.2021, at around 5:45 p.m., the appellant was traveling in his Honda City vehicle bearing registration number AJQ-301 when he went missing. iii. Subsequently, the appellant's wife, Syeda Huma Abbas, filed Writ Petition No.146 of 2021 before the Islamabad High Court, which was disposed of by the then Honourable Chief Justice upon the return of the appellant on 10.02.2021. iv. During the period of his disappearance, the appellant remained in illegal detention of unknown individuals. He claimed that his disappearance amounted to an enforced disappearance by state agencies. v. The appellant was apprehended by the FIA on 15.02.2021, as noted in his statement under Section 342 Cr.P.C., through one Faisal, a person allegedly introduced to him during his illegal detention. vi. The appellant was charged under Sections 3 and 4 of the Official Secrets Act, 1923, on the allegation that he had met with a foreign agent and had transmitted/communicated official information of a confidential and secret nature. vii. The identity of the alleged foreign agent was never investigated by the Investigating Officer (IO) nor known till date. viii. It was claimed that the appellant was apprehended by FIA after being deboarded from a white Land Cruiser bearing registration number QM-162, near the PSO Petrol Pump, G-8, Islamabad. However, this vehicle was never verified. The Excise and Taxation Office confirmed that the said registration number was allotted to a Mitsubishi car, as verified by the prosecution's own evidence. ix. No direct evidence was produced by the prosecution to show that any confidential or secret information was actually communicated to a foreign agent. x. The raiding team that intercepted and apprehended the appellant did not produce the blue plastic bag allegedly containing Rs.110,000 cash. xi. The IO also failed to produce or exhibit in the court, the three pieces of alleged technical evidence, namely: A mobile phone (Galaxy A71), A 4 GB Kingston USB flash drive, and A PlayStation USB. xii. The appellant's statement under Section 164 Cr.P.C. was recorded on the third day of his physical remand, without first sending him to judicial custody. xiii. No register (No.19 or No.21) of the concerned police station was produced to establish the safe custody of the allegedly recovered mobile phone and USB devices. xiv. The IO admitted that the USB and mobile phone were never sealed at the time of recovery, nor was any identification mark affixed to them. xv. No record was produced to show that the data allegedly recovered caused any prejudice to the national security of Pakistan or conferred any benefit to an enemy state. xvi. There was no office order, directive, or legal notification presented to establish that the recovered data had ever been classified as secret, confidential, or top secret by any competent authority.
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xvii. No official witnesses, such as the Director General of Human Resources or any official from the Ministry of Foreign Affairs (MOFA), were produced in Court to verify the nature of the documents. xviii. The appellant had already been repatriated to his parent Ministry of Planning and Special Initiatives from the Ministry of Foreign Affairs well before the alleged incident. xix. No Call Data Record (CDR) was collected by the IO to confirm the appellant's presence at the alleged place of arrest or any meeting with a foreign agent. 33. Keeping in view the above investigation flaws, it has been established that on the basis of mere allegations not supported by substantial or circumstantial evidence, conviction cannot be sustained. As per Article 117 of the Qanun-e-Shahadat Order, 1984, the burden of proof lies with the prosecution. Under the Official Secrets Act, 1923, the prosecution is obligated to prove the delivery of secret information through direct evidence, which may include: Eyewitness accounts of the alleged transmission of secret information; Documentary evidence such as emails, letters, or memos showing transmission of classified material; Circumstantial evidence reflecting a consistent pattern of behaviour that supports the allegation; Digital footprints, including logs of access to digital files or email correspondence involving classified content; Forensic analysis of devices used by the accused, like USB drives or mobile phones; Surveillance evidence such as CCTV footage or intercepted communications with foreign agents; Intelligence reports from law enforcement or intelligence agencies; and Expert testimony from cyber security or cryptography professionals. 34. Even in cases involving national security, the law demands a minimum threshold of evidence. The absence of any technical or corroborative proof in this matter undermines the prosecution's case. To establish guilt under the Official Secrets Act, the prosecution must also prove: That the transmitted information was officially classified and protected under law; That the accused had access to such classified material; That the accused intentionally communicated such information to an unauthorized person, knowing it to be classified. 35. The classification status of such information must be proven through a competent authority, who should be produced as a witness to demonstrate that the documents / information were marked as confidential, secret, or top secret, and that unauthorized access to such documents is illegal. 36. Furthermore, classification protocols, secure transmission procedures, and document handling regulations should also be framed to demonstrate procedural lapses. 37. Although the appellant previously served on the China Desk in MOFA dealing with CPEC matters, he had already been transferred to his parent Ministry vide notification dated 28.09.2020 after the repatriation from Ministry of Foreign Affairs vide Notification dated 07.09.2020, prior to the alleged incident. No mobile number allegedly used by the appellant was confirmed through telecom records by the I.O. Mere recovery of old official data from mobile device of accused which he possessed by virtue of the position he was holding, cannot form the basis of conviction under the Official Secrets Act, 1923, especially when: The accused is no longer in a position of access to classified information; The identity of the alleged foreign agent remains unverified; The vehicle from which the appellant was allegedly deboarded (QM-162) is unverified, rather registration received reflects Mitsubishi vehicle car. 38. The prosecution was unable to establish any mensrea or criminal intent of the appellant through direct or circumstantial evidence, including behaviour, background, or conduct indicating deliberate disclosure of secret information.
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39. I have also attended to the Digital Forensic Analysis Report submitted by the Cybercrime Wing, marked as Exh.CW-1/76, prepared by the forensic expert Mohammad Sibtain Ahmed Khan, Assistant Director (Forensics), who appeared as CW-01 in this case. He stated that he received three devices one mobile phone and two USBs for forensic analysis, and submitted a report comprising 77 pages and he conceded that his statement under Section 161 Cr.P.C. was not reduced into writing and his report comprised of three pages only annexed as Exh.PW3, Exh.PW4, and Exh.PW5 out of the total 77 pages. While the remaining pages comprised of, data retrieved from the devices. He did not refer to a single instance from which it could be presumed, on the basis of the forensic analysis, that any data had been transferred to any recipient or to whom it was allegedly sent. 40. He further stated that such determination was not within the scope of forensic analysis. CW-01 also admitted that he did not mention the cell number (or SIM number) in the digital analysis report a key factor required to establish the connection between the appellant and the recovered mobile phone. He also conceded that it is correct to say that the documents retrieved were not verified from the Ministry of Foreign Affairs (MOFA). 41. In view of these admissions by the forensic expert, the second prosecution witness, PW-03 Masood Ali, Deputy Director FIA (In-charge Forensics, CCW-FIA), also appeared in the witness box and deposed that he received two USB devices on 16.02.2021 and one mobile phone on 18.02.2021, allegedly recovered from the accused, for the purposes of extracting secret documents from these devices. However, the timeline indicates that these recovered devices were neither immediately forwarded to the forensic expert nor were they sealed at the time of recovery. 42. Turning now to the Digital Forensic Analysis Report (Exh.CW-1/76) from another perspective, specific findings were made in Clause 4.1 of the report, which are as under: 4.1. Facts and Finding of Samsung Mobile Phone A71 in FIR-03/21 CTW During the course forensic examination of the evidentiary item Mobile phone Samsung bearing IMEI:352639111312681, the data as per scope of the case was searched and the official documents related to MOFA SMS related to MOFA, official Correspondence, china visit, correspondence with china regarding gawader has been identified and extracted and annexed at Flag-C. The investigation officer can identify the facts as per case requirement from extracted data provided in DVD attached. Few detail is annexed at page no.0950. 4.2. Facts and Finding of USB Kingston Silver color in FIR-03/21 CTW During forensic examination of USB silver color the data as per scope of the case was searched and official documents has been identified and annexed at Flag-D. It is pertinent to mention that the malware was also identified in USB. The detail is annexed at page no.51-70. 4.3.…
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