PLJ 2026 Cr.C. 92
[Lahore High Court, Lahore]
Present: Muhammad Amjad Rafiq, J.
SUNNY HAKIM--Appellant
versus
STATE etc.--Respondents
Crl. Misc. No. 33508-B of 2025, decided on 10.7.2025.
Criminal Procedure Code, 1898 (V of 1898)--
ایس ۔ 497-پاکستان پینل کوڈ ، 1860 (1860 کا ایکس ایل وی) ایس ۔ 394/411-ضمانت - تاخیر کی آئینی بنیاد-کیس کا تجزیہ اس معاملے میں صرف ایک اہم حقیقت جمع کرتا ہےیعنی ، ملزم/درخواست گزار کی شناخت ، جس میں مناسب طریقے سے شرکت نہیں کی جا سکتی تھی یا استغاثہ کی طرف سے خطاب نہیں کیا جا سکتا تھا - - درخواست گزار کے وکیل کے ذریعہ اجاگر کردہ حقائق ، جن کی تصدیق ڈپٹی پراسیکیوٹر جنرل نے کی ہے ، شناخت کے عمل میں زخمیوں کی علیحدگی کی وجہ سے پیدا ہونے والے نقصان کو پورا نہیں کرسکے اور استغاثہ کے اس بیان کی کوئی تائید نہیں ہے کہ دراصل یہ درخواست گزار ہی تھا جس نے زخمیوں پر گولی چلائی تھی - - شواہد کی راگوں کو پھولوں کے بنجر کیس کے لیے چپچپا بنایا جا رہا ہے ؛ کارروائی کے اس مرحلے پر اس طرح کے مصنوعی بہاؤ کا ضمانت کے لیے درخواست گزار کی راحت میں کٹوتی کرنے پر شاید ہی کوئی اثر پڑا - درخواست گزار سے محض کچھ رقم اور موٹر سائیکل کی وصولی ، یا مجرمانہ تاریخ کو مقدمے کی سماعت کے اختتام میں تاخیر کی قانونی بنیاد پر بھی ضمانت کی رعایت کو مسترد کرنے کے لیے درست مواد نہیں سمجھا جا سکتا جب تک کہ مجرم ایسے معاملات میں سزا یافتہ نہ ہو جائے ۔
----S. 497--Pakistan Penal Code, 1860 (XLV of 1860), Ss. 394/411--Bail--Statutory ground of delay--Case analysis collects only one vital fact in issue in this case i.e., identification of accused/petitioner, which could not have properly been attended or addressed by prosecution--Facts highlighted by learned counsel for petitioner, verified by learned Deputy Prosecutor General could not fill pitfall created due to disassociation of injured in identification process and there is no support to prosecution version that actually it was petitioner who fired at injured--Rags of evidence are being made sticky to flower barren case; such synthetic flow at this stage of proceedings hardly had any effect to cut relief of petitioner for bail--Mere recovery of some amount and motorcycle from petitioner, or criminal history cannot be considered valid material to decline him concession of bail even on statutory ground of delay in conclusion of trial until offender is convicted in such cases. [P. 104] A
PLD 1990 SC 934.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Burden of proof on prosecution--Bail after arrest--Supreme Court of Pakistan has held that burden of proof on prosecution i.e., “proof beyond reasonable doubt” also applies at all stages including pre-trial stage, and even at time of deciding whether accused is entitled to bail or not--Prosecution so far has not discharged such burden successfully. [P. 105] B
2024 SCMR 476.
Criminal Procedure Code, 1898 (V of 1898)--
ایس ۔ 497 (2)-پاکستان پینل کوڈ ، 1860 (1860 کا ایکس ایل وی) ایس ۔ 394/411-ضمانت ، مزید تفتیش-مقدمے کی سماعت میں تاخیر - - آئینی بنیاد - - مقدمے کی سماعت کے اختتام میں تاخیر کا ذمہ دار استغاثہ تھا - درخواست گزار 18.07.2023 سے سلاخوں کے پیچھے ہے جو پہلے ہی ایک سال کی اپنی قانونی مدت مکمل کر چکا ہے ۔ لہذا ، نہ صرف میرٹ پر بلکہ مقدمے کی سماعت کے اختتام میں تاخیر کی قانونی بنیاد پر بھی ضمانت کا مقدمہ بنا دیا ہے ۔ - درخواست گزار کے مقدمے کی سماعت کے قریب مستقبل میں اختتام کا کوئی امکان نہیں ہے اور اس کے حق میں اس طرح کے حق کی بنیاد پر راحت سے انکار نہیں کیا جاسکتا ہے جب تک کہ وہ سخت ، مایوس یا خطرناک مجرم ، موت یا عمر قید کی سزا کے قابل جرم کا سابقہ مجرم یا دہشت گردی کی کارروائی کا ملزم سزائے موت یا عمر قید کی سزا کے قابل نہ پایا جائے ، لیکن موجودہ درخواست گزار کے معاملے میں ایسی کوئی رعایت نہیں پائی گئی ۔
----S. 497(2)--Pakistan Penal Code, 1860 (XLV of 1860), Ss. 394/411--Bail, grant of--Further inquiry--Delay in trial--Statutory ground--Prosecution was responsible for causing delay in conclusion of trial--Petitioner is behind bars since 18.07.2023 who had already completed his statutory period of one year; therefore, has made out a case for bail not only on merits but on statutory ground of delay in conclusion of trial as well--There is no likelihood of conclusion of petitioner’s trial in near future and relief on basis of such right so accrued in his favour cannot be refused to him unless he is found to be hardened, desperate or dangerous criminal, a previous convict for an offence punishable with death or imprisonment for life or accused of an act of terrorism punishable with death or imprisonment for life, but no such exception was found in case of present petitioner. [P. 105] C
2022 SCMR 1 & PLD 2022 SC 112.
Ch. Iftikhar Ahmad, Advocate for Petitioner.
Ms. Noshe Malik, Deputy Prosecutor General for State.
Complainant in Person.
Date of hearing: 10.7.2025.
Order
Through this petition under Section 497, Cr.P.C., petitioner seeks post arrest bail in case FIR Bearing No. 1684 dated 26.06.2023 registered under Sections 394/411-PPC at Police Station Ravi Road, Lahore.
2. Earlier on the day when the police file was placed before learned Deputy Prosecutor General, she was attempting to collect the facts haphazardly to respond to the queries of this Court due to which much precious time of this Court went into waste. She responded that the record of the case has just been tabled before her in the Court, which irked the Court to call for Prosecutor General, Punjab to appear and respond as to why direction of Supreme Court of Pakistan in a case reported as “Javid Khan versus Arshad Khan and another” (PLD 2024 Supreme Court 73) is not being complied with. On his appearance, he was apprised of the facts that in above judgment, Supreme Court of Pakistan has categorically observed that:
“A practice has also developed whereby despite prior notice to the State preparation of the case is done before the Court, rendering this Court into an office of the prosecution. Rather than attending to the matter with the seriousness that it deserves two police officers, who are investigating the crime travelled from Peshawar to bring documents which could have been e-mailed, faxed or sent by WhatsApp, and then the relevant documents could have been filed, which would have been useful in determining the outcome of this bail application”
The learned Prosecutor General, Punjab was further apprised that as per preamble of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006, (the “CPS Act”) an independent, effective and efficient service for prosecution of criminal cases, to ensure prosecutorial independence, for better coordination in the criminal justice system of the province and matters incidental thereto, was established and being maintained by the Government under the said Act[1] which consists upon Prosecutor General, Additional Prosecutor General, Deputy Prosecutor General, District Public Prosecutor, Deputy District Public Prosecutor and Assistant District Public Prosecutor,[2] and none else, which is headed by the Prosecutor General and its administration vest in him[3] with no intervention whatsoever from any other corner except a liaison with Attorney General of Pakistan and the Advocate General of Punjab, only in cases which are pending in the Courts as a common cause.[4] Thus, the CPS Act being a complete statute gives the Prosecutor General powers to issue guidelines under its Section 10(1) to prosecutors and officers responsible for investigation for effective and efficient prosecution. Of course, such guidelines must be in accordance with the particular policy of government if framed for prosecution of certain offences because government exercises superintendence over the criminal prosecution service but in prosecutorial decision making, criminal prosecution service is wholly independent for the reason that the prosecutors are not the civil servants rather being members of service, having an indemnity to their acts done in good faith, are cloaked as public servants (see Ss. 16 & 18 of the CPS Act), so that for any derelictions in their prosecutorial work they could be held responsible.
3. Section 16 of the CPS Act enunciates that subject to the provisions of this Act and rules, members of the Service, including the staff, shall be appointed and governed under the Punjab Civil Servants Act, 1974 and rules made thereunder. Thus, applicability is conditional to the provisions of CPS Act which outline a clear criterion for appointment of Prosecutor General on contract as per Section-6 and of all other prosecutors under section 8 either by initial recruitment through Punjab public service commission or by promotion or by transfer as prescribed, and prescribed means as per CPS Act, prescribed by rules which has not been made so far. Section 20 of the CPS Act also gives an overriding effect to Sections 8, 9, 10, 11, 12, 13, 14, 15, 17, 18 and 19 of the CPS Act on all other laws; it therefore, gives air to a connotation that Punjab Civil Servants Act, 1974 was not made applicable upon the members of service to give them a status of civil servants rather its applicability is for multifarious purposes like pay, pension, leave, and other fringe benefits which are applied in case of every person working with the affairs of the province. Thus, until the rules are framed under the CPS Act, the application of the Punjab Civil Servants Act and rules made thereunder would remain operative for the cited purposes. It is trite that if any person is directed to be governed by the Punjab Civil Servants Act, 1974, it does not ipso facto make him civil servant if his service is also regulated under any special statute or rules. One of the instances in this respect could be of District Judiciary which is also governed under the Punjab Civil Servants Act, 1974 for the purpose of pay, leave & pension etc., subject to the Punjab Judicial Service Rules 1994, but still they are not regarded as civil servants. Last but not the least Punjab Bar Council does not suspend the practicing license of an advocate who joins the criminal prosecution service or is appointed as law officer in office of Advocate General Punjab or Attorney General of Pakistan so as to permit them to appear before the High Courts or the Supreme Court on behalf of government as a legal counsel. This command of law is incorporated in Section 11 of the CPS Act as well, which is as under:
Conduct of prosecution before Superior Courts.--(1) Without prejudice to the powers conferred under any law on the office of the Attorney General of Pakistan and the Advocate General, the Prosecutor General and the Additional Prosecutor General may depute any Prosecutor, otherwise qualified, for conducting prosecution before the Supreme Court, the High Court or the Federal Shariat Court.
Above section shows that besides being prosecutor he must be “otherwise qualified” which connotes to hold a valid practicing licence for his eligibility to appear before the Superior Courts. This aspect was also attended by the Supreme Court of Pakistan while granting permissions to the prosecutors to contest for the post of Additional Sessions Judge being eligible candidates. Reliance in this respect is placed on case reported as “Riaz Hanif Rahi and others versus Registrar, Lahore High Court, Lahore and others” (PLD 2008 Supreme Court 587). Nonetheless the Supreme Court of Pakistan has already authoritatively held in a case reported as “Province Of Sindh through Chief Secretary, Sindh, Sindh Secretariat and another versus Prosecutor-General Sindh, Criminal Prosecution Department and others” (2012 SCMR 307) that prosecutors are not the civil servants rather public servants so as to take prosecutorial decisions independently free from government pressures for which a need for establishment of independent criminal prosecution service was felt, otherwise prosecution affairs were being regulated by the Government of the Punjab, Law & Parliamentary Affairs Department through the operation of Law Department Manual 1938, a Manual still applicable on the office of Advocate General Punjab.
4. The Code of Conduct for Prosecutors issued in year 2016 by the Prosecutor General Punjab under Section 17 of the CPS Act also ensures independence of prosecutors through following paragraphs:
3.4 Prosecutors must perform their duties in an open and fair manner and not let their personal views regarding race, ethnicity, religion, sect, gender, age, national origin, political affiliation, social status and/or education influence their decisions. Similarly, Prosecutors must not be affected by improper or undue pressure from any source.
4.13 A prosecutor cannot be directed to take a decision with a pre-determined outcome
The above directions of Prosecutor General clearly demand that prosecutors shall work fearlessly by taking independent decisions or giving opinions for prosecution of criminal cases, better coordination in criminal justice system of the province and matters ancillary thereto; therefore, they cannot be directed by any authority to take a pre-determined outcome. Thus, a prosecutor who does not apply his independent mind while taking prosecutorial decisions or giving opinions exposes himself to a legal action by the Prosecutor General under Section 10 (2) of the CPS Act which again regards the prosecutors as public servants. The Section is reproduced;
(2) The Prosecutor General or the District Public Prosecutor may, refer to the authority, competent to initiate disciplinary proceedings under any law for the time being in force, to take disciplinary action against any public servant working in connection with investigation or prosecution, for any act committed by him and is prejudicial to the prosecution.
(Emphasis supplied)
The above subsection reinforces the independence of criminal prosecution service that until the Prosecutor General recommends, no authority in government can take action against the prosecutors.
5. The learned Prosecutor General was ultimately asked when the criminal prosecution service is independent in all respect what restricts him to issue guidelines under Section 10(1) of the CPS Act to the prosecutors and the investigators to follow command & dictates of Hon’ble Supreme Court of Pakistan; he responded that he is already working on such issue and in this respect certain guidelines are also in place. He submitted report which shows that Guidelines issued on 29.04.2025 through letter No. S-PRSQN/PGP/Circulation/ 2024-288-3676 were to the following effects:
i. Investigation officer should attend and produce record of the case during criminal proceedings i.e. bails etc. before Hon’ble High Courts.
ii. Previous history and record of conviction of the accused should be taken from the concerned quarters i.e. CRO branch or PSRMS during the course of investigation and the same be placed on record to assist the Prosecutors during bail and other criminal proceedings before Hon’ble High Court and also attach previous record with reports under Section 173, Cr.P.C.
iii. Investigation officers are under statutory duty to prepare brief of the case in accordance with the Rule 27.4, Police Rule 1934 for the assistance of Public Prosecutors before the Hon’ble High Courts which include previous record of conviction alongwith proof of previous conviction.
Above guidelines were addressed to Inspector General of Police, Punjab, Lahore for compliance. Later by virtue of letter No. S-PRSQN/ PGP/ Misc /7-9 /2025 /6658-A, dated 04.07.2025, Inspector General of Police, Punjab, Lahore was apprised by the Prosecutor General that guidelines issued on 29.04.2025 are not being complied with in letter & spirit.
6. It has been observed that specific directions with respect to use of WhatsApp for obtaining relevant record from the police department has not been issued by the Prosecutor General, Punjab through said guidelines, therefore, the Prosecutor General, Punjab later on the day submitted a letter No. JCM/ PGP/ 65/ 2025 dated 10.07.2025 through Dr. Usman Deputy Prosecutor General Punjab containing a direction to the Inspector General of Police, Punjab, Lahore that all the DPOs may be directed to submit detailed fact sheet/ progress report to concerned prosecutor at least one day prior to hearing of case via WhatsApp or any other approved electronic communication platform. It is expected that the Inspector General of Police, Punjab, Lahore shall pass direction to all concerned that a day prior to the fixation of case, facts and relevant developments in investigation through a fact sheet shall be communicated to the concerned Prosecutor and police officer shall also have liaison with the Prosecutor to respond to any query in this respect. The Prosecutor General is directed to issue administrative direction to the concerned staff of his office that while communicating the date of case to the police they shall obtain the WhatsApp numbers of police officers/officials who are expected to produce the record in the Court, and such numbers shall be shared with the concerned prosecutors, who are directed to keep a close liaison with said police officers for furnishing fact sheet or any required response to the queries raised by them while reading the case files. Like direction be also issued by the Prosecutor General to the concerned prosecutors, so as to make the mechanism effective and a ground for disciplinary action in case of any dereliction.
7. Under Section 10(3)(c) of the CPS Act, Prosecutor is authorized to call for record or any other document within a specified time from a law enforcement agency and if necessary, from any other Government department or agency as may be necessary for the purposes of prosecution. Thus, combined reading of above subsection and Rule 27.4 of Police Rules 1934 relating to police brief gives authority to prosecutors to call for brief fact sheet of the cases prior in time. Practice of obtaining fact sheet, prior in time, will help the prosecutors to prepare their cases well before the fixation date, and on the day when the case is taken up, they could simply verify such facts from the original record of police so as to save precious time of the Court and also to put an effective say in favour of either of the parties because their legal mandate requires that they shall perform their functions and exercise their powers fairly, honestly with due diligence and in the public interest and to uphold justice as mentioned in Section 13(9)(a) of the CPS Act. The word ‘shall’ used in above subsection makes it mandatory for them to act accordingly. Any violation thereof can hold them responsible for disciplinary action under Section 10(2) of the CPS Act.
8. The mandate of above subsection requires the prosecutors to exercise their powers in public interest, and this vague term attracted the attention of this Court to be focused for a clarity what it actually is; therefore, a brief attempt is being made to dig out the requirement of public interest though through a cumbersome exercise of reading a plenty of material which was mainly extracted from; i) The fact sheet developed by the NSW Ombudsman (Integrity Commission Tasmania), 2) An article on “The Public Interest We Know It’s Important, But Do We Know What It Means” by Chris Wheeler. 3) Article published by The Johns Hopkins University Press “The Public Interest: Its Meaning In Democracy” by Anthony Downs.
9. The public interest has been described as referring to considerations affecting the good order and functioning of the community and government affairs for the wellbeing of citizens. It has also been described as the benefit of society, the public or the community as a whole. The public interest would consist of those government actions that most benefited the whole society. It is important to draw a distinction between the question and its application – between what is the public interest, and what is in the public interest in any particular circumstance. Although the term is a central concept to a democratic system of government, it has never been definitively defined either in academics, legislation or by the Courts. While there has been no clear interpretation, there has been general agreement in most societies that the concept is valid and embodies a fundamental principle that should guide and inform the actions of public officials.
THE JOHNS HOPKINS University Press published an article “THE PUBLIC INTEREST: ITS MEANING IN DEMOCRACY” written by ANTHONY DOWNS which shows that there is no exact definition of “public interest”, acceptable to all. Writer deliberates the term “public interest” in following expression:
The term public interest is constantly used by politicians, lobbyists, political theorists, and voters, but any detailed inquiry about its exact meaning plunges the inquirer into a welter of platitudes, generalities, and philosophic arguments. It soon becomes apparent that no general agreement exists about whether the term has any meaning at all, or, if it has, what the meaning is, which specifications are in the public interest and which are not, and how to distinguish between them. In the face of this confusion why the term so often used? The answer can be found by distinguishing between the meaning of a concept and its functions. Many a significant concept is extremely hard to define in such a way that a large number of its users would agree on the definition. One reason it is so hard to define terms like love, justice and power is that they refer to realities so fundamental and all pervasive in our lives that we cannot encompass them in few words Yet everyone who uses such a concept has a notion of what it means, and employs that notion to order the events he encounters and to communicate his thoughts to others. The concept of public interest falls in this category. Nevertheless, it serves important functions in social life.”
10. The terms ‘public interest’ somehow was attempted to be defined by the Academics, Legislatures and the Courts. In its 1979 report on the then draft Commonwealth Freedom of Information Bill, the Australian Senate Committee on Constitutional and Legal Affairs described the public interest as,
“…a convenient and useful concept for aggregating any number of interests that may bear upon a disputed question that is of general – as opposed to merely private – concern”.
The Committee also said that the: …
“public interest “is a phase that does not need to be, indeed could not usefully, be defined... . Yet it is a useful concept because it provides a balancing test by which any number of relevant interests may be weighed one against another. …the relevant public interest factors may vary from case to case – or in the oft quoted dictum of Lord Hail sham of Marylebon “the categories of the public interest are not closed”.
The meaning of the term has been looked at by the Australian Courts in various contexts. In one case the Supreme Court of Victoria said:
The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the wellbeing of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals…
In another case the Federal Court of Australia said:
9. The expression ‘in the public interest’ directs attention to that conclusion or determination which best serves the advancement of the interest or welfare of the public, society or the nation and its content will depend on each particular set of circumstances…
10. The expression ‘the public interest’ is often used in the sense of a consideration to be balanced against private interests or in contradistinction to the notion of individual interest. It is sometimes used as a sole criterion that is required to be taken into account as the basis for making a determination. In other instances, it appears in the form of a list of considerations to be taken into account as factors for evaluation when making a determination...
11. The indeterminate nature of the concept of ‘the public interest’ means that the relevant aspects or facts of the public interest must be sought by reference to the instrument that prescribes the public interest as a criterion for making a determination…
The dilemma faced by those trying to define the public interest was summed up in another case in the following few words:
The public interest is a concept of wide meaning and not readily limited by precise boundaries. Opinions have differed, do differ and doubtless always will differ as to what is or is not in the public interest.
The term was referred to in the following more colourful, but pragmatic, terms by an American commentator:
Plainly the ‘public interest’ phrase is one of those atmospheric commands whose content is as rich and variable as the legal imagination can make it according to the circumstances that present themselves to the policy maker (under the supervision of the Courts of course).
It could have been this term that Lewis Carol was thinking of when he had Humpty Dumpty say:
“When I use a word…it means just what I choose it to mean – neither more nor less.”
11. Most attempts were made to describe what is meant by the ‘public interest’, however, the issue of what constitutes the ‘public’ in ‘public interest’ has largely been unexplored. Public interest though was considered as relates to the interests of members of the community as a whole, or at least to a substantial segment of them - that it should be distinguished from individual, sectional or regional interests, yet at the other end of the spectrum, it is also widely accepted that the ‘public interest’ can extend to certain private ‘rights’ of individuals - rights that in many societies are regarded as being so important or fundamental that their protection is seen as being in the public interest, for example privacy, procedural fairness and the right to silence. Thus, the public interest must also be able to apply to the interests of groups, classes or sections of a population between those two ends of the spectrum.
12. Acting in the public interest is a fundamental concept in a representative democratic system of government or in good public administration. However, this concept, in practice, is somewhat complex, and presents two major obstacles to governments and their public officials acting in the public interest:
• firstly, while it is one of the most used terms in the lexicon of public administration, it is arguably the least defined and least understood – few public officials would have any clear idea what the term actually means and what its ramifications are in practice.
• secondly, identifying or determining the appropriate public interest in any particular case is often no easy task - as Lyndon B Johnson once said: ‘Doing what’s right is n’t the problem. It’s knowing what’s right’.
Thus, public officials must determine the public interest as it applies to them by referring to the purposes for which their organization was established and the functions they and their organization are required to perform. They should consider:
1. any enabling legislation setting out objectives, purposes or functions of the organization
2. relevant government policy
3. their organization’s corporate plan or other relevant internal policy statements, and
4. the duty statement for their position.
We know acting in the public interest has two separate components:
• objectives and outcomes - that the objectives and outcomes of the decision-making process are in the public interest, and
• process and procedure - that the process adopted and procedures followed by decisionmakers in exercising their discretionary powers are in the public interest.
The objectives and outcomes component are the aspect of the public interest most referred to in the literature. The process and procedure component appears to be less discussed, but is just as important. This component would include:
a. complying with applicable law (both its letter and spirit);
b. carrying out functions fairly and impartially, with integrity and professionalism;
c. complying with the principles of procedural fairness/natural justice;
d. acting reasonably;
e. ensuring proper accountability and transparency;
f. exposing corrupt conduct or serious maladministration;
g. avoiding or properly managing situations where their private interests conflict or might reasonably be perceived to conflict with the impartial fulfilment of their official duties; and
h. acting apolitically in the performance of their official functions (not applicable to elected public officials).
13. Applicability of public interest was also focused in Pakistan Jurisprudence; the august Supreme Court of Pakistan in “Javed Ibrahim Paracha v. Federation Of Pakistan and others” (PLD 2004 SC 482) referred the “Public Interest” as under:
‘Public interest’ in the Black Law Dictionary, has been defined as the general welfare of the public that warrants recognition and protection. Something in which the public as a whole has a stake; esp., an interest that justifies governmental regulation.”
In a case reported as “Ashfaq Ahmad Kharal and 21 others v. Province Of Punjab Through Secretary, Law and Parliamentary Affairs and others” (PLD 2024 Lahore 12) this Court after having a survey of case laws on the subject held on the definition of “Public Interest” in following words:
“Now before we examine the impugned Notifications on this touch stone, it is necessary to understand what ‘Public Interest’ means. Although, the expression “public interest” has not been defined in any law, however, this expression is to be understood and interpreted in the light of entire scheme, purpose and object of the enactment in which it is employed.”
14. Code of conduct for prosecutors issued by the Prosecutor General Punjab under Section 17 of the CPS Act, also gives space to public interest as per Para 5B which requires the prosecutors that in every case where there is sufficient evidence to justify a prosecution a prosecutor must go on to consider whether a prosecution is required in the public interest and while doing so shall keep in the mind the public interest factors. The para 5.11 of the Code of conduct further requires the prosecutors as under;
In deciding the public interest, the prosecutors must take into account the views of the victims however this is not the determining factor. The CPS does not act for victims or their families in the same way as lawyers act for their clients, and prosecutors must form an overall view of the public interest.
Thus, as held by judgement of Federal Court of Australia referred in paragraph-9 above that public interest appears in the form of a list of considerations to be taken into account as factors for evaluation when making a determination, Code of conduct for prosecutors in the same line as per para 5.12 lays down the following factors of public interest which must be kept in mind by the prosecutors while applying public interest test;
a) How serious is the offence?
b) The extent of culpability of the offender?
c) The circumstances of the Victim?
d) The age and circumstances of the offender
e) The impact of the offence on the community
f) The remorse shown by the offender or actions taken by him to undo the wrong
g) Is prosecution a proportionate response?
15. Now coming to the case in hand. It was the story of prosecution that two unknown accused in order to commit robbery have caused injuries to Gul Muhammad through firing. Learned counsel for the petitioner claimed false implication of the petitioner on the grounds that on suspicion petitioner was arrested in this case under Section 54 of Cr.P.C., on 18.07.2023, put to test identification parade on 31.07.2023 wherein only complainant has participated whereas the injured Gul Muhammad had never confronted the petitioner in any proceedings including test identification parade and Gul Muhammad injured has also not made any statement under Section 161 of Cr.P.C., thus, prayed for release of petitioner on bail.
16. Heard. Record perused.
17. Case analysis collects only one vital fact in issue in this case i.e., identification of accused/petitioner, which could not have properly been attended or addressed by the prosecution. Facts highlighted by learned counsel for the petitioner, verified by the learned Deputy Prosecutor General could not fill the pitfall created due to disassociation of injured Gul Muhammad in the identification process and there is no support to the prosecution version that actually it was the petitioner who fired at the injured. Rags of evidence are being made sticky to flower the barren case; such synthetic flow at this stage of the proceedings hardly had any effect to cut the relief of petitioner for bail. Mere recovery of some amount and motorcycle from the petitioner, or criminal history cannot be considered valid material to decline him the concession of bail even on statutory ground of delay in conclusion of trial until the offender is convicted in such cases as held in “Moundar and others versus The State” (PLD 1990 Supreme Court 934).
18. In a case, reported as “Akhtar versus Khawas Khan and another” (2024 SCMR 476), Supreme Court of Pakistan has held that the burden of proof on prosecution i.e., “proof beyond reasonable doubt” also applies at all stages including the pre-trial stage, and even at the time of deciding whether the accused is entitled to bail or not. Prosecution so far has not discharged such burden successfully. Therefore, petitioner has succeeded to make out a case for further inquiry. Further, report of learned trial Court bearing No. 125 dated 08.07.2025 reflects that charge was framed in this case on 29.04.2025 and prosecution was responsible for causing delay in conclusion of trial. Petitioner is behind the bars since 18.07.2023 who had already completed his statutory period of one year; therefore, has made out a case for bail not only on merits but on statutory ground of delay in conclusion of trial as well. There is no likelihood of conclusion of petitioner’s trial in near future and the relief on the basis of such right so accrued in his favour cannot be refused to him unless he is found to be hardened, desperate or dangerous criminal, a previous convict for an offence punishable with death or imprisonment for life or accused of an act of terrorism punishable with death or imprisonment for life, but no such exception was found in the case of present petitioner. Consequently, while placing reliance on cases reported as “Shakeel Shah versus The State and others” (2022 SCMR 1), “Nadeem Samson versus The State and others.” (PLD 2022 Supreme Court 112), this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs. 2,00,000/- with one surety in the like amount to the satisfaction of the trial Court.
(A.A.K.) Petition allowed
[1]. (Section (3) of the CPS Act 2006).
[2]. (Section (4) of the CPS Act 2006).
[3]. (Sections 5(2) & 6(1) of the CPS Act 2006).
[4]. (Section 11(2) of the CPS Act 2006).
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