This single order shall dispose of titled petitions filed under Section 497 of Cr.P.C., by the petitioners seeking post arrest bail in case FIR No.444 dated 15.05.2024 registered under Sections 302/324/109/114/34-PPC at Police Station City Muzaffargarh, District Muzaffargarh.
2. It was the story of FIR that on 15.05.2024 at about 10:30 a.m., Muhammad Ishaq complainant along with his elder brother Ashfaq Hussain on their separate motorcycles left for their house from cardboard godown situated near Beehari colony, and at about 10:35 a.m., when they crossed thermal power bypass, Ashfaq Hussain was approximately 100 yards ahead from the complainant, two unknown persons one muffled face and other not muffled riding on a motorcycle crossed the complainant and signaled his brother to stop the motorcycle who acted upon the direction; upon which person not muffled (pillion rider) made three fires with his pistol which hit Ashfaq Hussain at his back; the complainant after stopping his motorcycle came forward, said person made two fires in the air and threatened him not to come near; the witnesses Abdul Ghaffar & Liaqat Hussain emerged there and Ashfaq Hussain was shifted to DHQ hospital, Muzaffargarh who later succumbed to the injures.
3. Learned counsel (s) for the petitioners contended that primarily, no one was nominated in the FIR and police remained on searching unknown accused for more than five months, and this effort of police was being reported in the daily newspapers because the deceased was a renowned journalist, on whose assassination Chief Minister of the Punjab had also taken a serious notice.
However, on the arrest of petitioners in the month of October, 2024, police claimed Samar Abaas petitioner as close relative and neighbour of deceased, whereas Ramzan petitioner was employee of Samar Abass. Both were employed at D.G. Khan Cement Factory, Dera Ghazi Khan. However, police while ignoring above facts, procured an ante-dated supplementary statement of the complainant of 16.05.2024 (next day of occurrence), for nomination of accused/petitioners to show that case was of direct ocular evidence, otherwise it was a blind murder. In support of such contention, some press clippings of "Daily Khabrain Multan" dated 15.05.2024, 20.05.2024, 24.05.2024, 26.06.2024 & 20.10.2024 found appended with the bail petition. Further submitted that by virtue of press clipping dated 20.10.2024, petitioners were shown arrested and, in such press clipping it was reported that after 05 months of the occurrence, for the murder of Ashfaq, his close relatives and neighbour have been arrested; therefore, effort of police to show the existence of supplementary statement of the complainant on the very next day (16.05.2024), is nothing but padding into the evidence. He asserted that such press clippings can be looked into at this stage for relief of bail to the petitioners and in this respect placed his reliance on cases reported as "ANWAR HUSSAIN and 2 others Versus The STATE" (2019 YLR 1117); "IMRAN MALIK Versus The STATE" (2018 MLD 1116).
Learned counsel (s) for the petitioners further added that Police Emergency call at 15 was made by one Khurram from the place of occurrence which carries an impression that complainant and PWs were not present at time of occurrence, and initiation of private prosecution through direct complaint after 08 months of the occurrence clearly shows the police and the complainant on different poles. This distrust was either of the complainant on the police investigation, or police was not ready to accept the command of the complainant.
4. Learned counsel (s) for the complainant on the other hand, opposed the bails on the grounds that Muhammad Ishaq, complainant has made first statement before the police with nomination of the petitioners on the same day which was written down by a witness Abdul Ghaffar whose signatures are also mentioned on such application, but police malafidely did not register the FIR correctly. Further stated that petitioners were employees of D.G. Khan Cement Company and prosecution has also obtained a report of their absence from the said company at the relevant time which was received vide letter dated 24.10.2024. Another evidence alleged was the CDR of the accused/petitioners, showing their link on the day of occurrence.
5. Heard; record perused.
6. First and the foremost fact in this case is the absence of the petitioners on the day of occurrence from D.G. Khan Cement Company. Does the report furnished by the company really tag them absent on that day? Let's see what the report speaks; it is as under; Subject: ATTENDANCE RECORD Attendance record of the following employees of the month of May 2024 is attached as desired, please. a. Sammar Abbas Assistant Junior Officer (Electrical) However, he was not present at place of duty on 15 May 2024 during duty hours. b. Muhammad Ramzan, Helper (WHRPP) The above report was confusing; however, separate sheets attached with report reflect that Samar Abass petitioner was Employee No. 3516 and was in attendance in the company office from 7.58 a.m. to 15.58 p.m. on 15.05.2024; whereas Ramazan Petitioner being Employee No. 91459 was absent on that day. It was the stance of the company that though attendance of Samar Abass petitioner is marked in the record yet he was not physically present in the company, but such stance is not supported by any material, documentary or forensic. Role of driving motorcycle was assigned to Muhammad Ramzan petitioner, whereas role of firing was assigned to Samar Abass petitioner but from the circumstances on the record, it becomes evident that he was in D.G. Khan Cement company at the time of occurrence, casting a doubt on his involvement in commission of murder.
7. Though CDR data was claimed showing connection of Samar Abbas and Muhammad Ramzan near the place of occurrence but without any voice message/transcript. Thus, it does not connect the petitioners with the commission of offence until and unless such CDR is formalized in accordance with law as enunciated in judgment of Full Bench of this Court in a case reported as "Mst. SAIMA NOREEN Versus The STATE and another" (PLJ 2023 Cr. C 371 (FB); for reference, relevant paragraph is reproduced;
10. Although any accused or witness can claim or admit possession and use of any SIM "Subscriber Identity Module' by him or anybody else at the time of occurrence or any other relevant time yet mere such claim or admission is not sufficient for relying on CDR "Call Data Record" of said SIM because CDR only shows use of SIM in territorial/geographical jurisdiction of "Cell Phone Tower" installed by telecom operator and does not disclose that who is actually/exactly carrying and using said SIM; however, "Voice Record Transcript" or "End to End Audio Recording" can reflect the detail/identification of the user. Therefore, without "Voice Recording Transcript", mere "Call Data Record" (CDR) alone of the SIM is inconclusive piece of evidence regarding identity of its user/carrier."
8. Learned counsel for the complainant states that pistol recovered on the lead of Samar Abbas, petitioner stood matched with the spent shells C-1 to C-5, therefore, his criminal liability stays. Had it been an occurrence of circumstantial evidence, all the evidence could have easily been looked in the form of a chain well knitted or scrambled, but once prosecution opted to make it a case of ocular account, then circumstances highlighted by learned counsel (s) for the petitioners including press clipping apparently make the case against the petitioners doubtful.
9. However, the repeated reliance of learned counsel (s) for the petitioners upon press clippings and claim of learned Counsel (s) for the complainant that it is inadmissible piece of evidence carrying a status of second-degree hearsay and misleading, a duty somewhat cast upon this court to re-thrash the admissibility or evidentiary value of press clippings. In the backdrop of contention, I have perused the relevant case laws on the subject and found that press clippings have been used by the Courts in following three situations; a) In Constitutional jurisdiction for matters of public importance. b) Presumption by Courts in criminal jurisdiction. c) Evidence of any party in criminal jurisdiction.
For the first situation, in the following judgments, while dealing with political statements/speeches against the State published in newspapers attributed to political leaders, Hon'ble Supreme Court of Pakistan has held that such statements if have not been denied or repudiated could be used as evidence against them. Reference is made to cases reported as "Mohtarma BENAZIR BHUTTO and another versus PRESIDENT OF PAKISTAN and others" (PLD 1998 Supreme Court 388), and "ISLAMIC REPUBLIC OF PAKISTAN THROUGH SECRETARY, MINISTRY OF INTERIOR AND KASHMIR AFFAIRS, ISLAMABAD versus ABDUL WALI KHAN, M. N. A., FORMER PRESIDENT OF DEFUNCT NATIONAL AWAMI PARTY" (PLD 1976 Supreme Court 57), wherein it was held as under; "It cannot be denied that so far as newspaper reports of contemporaneous events are concerned, they may be admissible, particularly where they happen to be events of local interest or of such a public nature as would be generally known throughout the community and testimony of an eyewitness is not readily available. The contemporary newspaper account may well be admitted in evidence in such circumstances as has often been done by Courts in the United States of America not because they are `business records' or "ancient documents' but because they may well be treated as a trustworthy contemporaneous account of events or happenings which took place a long time ago or in a foreign country which cannot easily be proved by direct ocular oral testimony. Thus, if a person does not avail of the opportunity to contradict or question the truthfulness of the statement attributed to him and widely published in newspapers he cannot complain if that publication is used against him. Such a user would not be hit by the rule of hearsay."
Whereas in a case reported as "Mian MUHAMMAD SHAHBAZ SHARIF Versus FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and others" (PLD 2004 Supreme Court 583), it was held as under; "Newspaper reports and articles can only be used in above exceptional circumstances meaning thereby that if on record admissible evidence is available which is not disputed between the parties particularly in the cases where the defendant/respondent himself had brought on record certain documents in proof of his plea then the Court is not, debarred from looking into the same for the purpose of arriving at a just conclusion particularly in the exercise of jurisdiction under Article 199 and Article 184(3) of the Constitution, where the Court had no occasion to record the evidence itself and had to base its decision on the pleadings of the parties who were supported with the documents like the present case petitioners wherein had relied upon the press clippings and articles but the respondents either on their own or under directions of the Court had brought on record material to satisfy the Court that the transaction under challenge is in accordance with law. Therefore, while accepting such request and declining to give relief, it would be incumbent upon the Court to rely upon the documents which are not disputed between the parties and such documents can be considered/treated as evidence on record.
10. Presumption by Courts in criminal jurisdiction, is the subject matter of the Evidence Act 1872 which with certain modifications was also applicable to the different States of India and by virtue of that Court was authorized to presume the genuineness of newspapers or journal as per Section 81 of said Act, which is as under;
81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents.
The Court shall presume the genuineness of every document purporting to be the London Gazette or [any official Gazette, or the Government Gazette] [Substituted by A.O. 1937, for "the Gazette of India, or the Government Gazette of any L.G., or".] of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to be a copy of a private Act of Parliament [of the United Kingdom] [Inserted by A.O. 1950.] printed by the Queen's Printer and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.
With the development of technology and availability of modern devices, above Section was later supplemented through Section 81A as under; Presumption as to Gazettes in electronic forms.[Inserted by Act 21 of 2000, Section 92 and Sch.II (w.e.f. 17.10.2000).]The Court shall presume the genuineness of every electronic record purporting to be the Official Gazette, or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody.
These two sections still exist in the law of evidence of India, now titled as "the Bharatiya Sakshya Adhiniyam, 2023" in the forms of Section 80 & 81, but by the promulgation of Qanun-e-Shahadat Order 1984, Section 81 of the Evidence Act 1872 was not re-enacted rather opted to skip it in the new legislation. Thus, Courts in Pakistan by law cannot presume the genuineness of a newspaper. Same observation has been made by the Court in a case reported as "ZAHID versus THE STATE" (PLD 1993 Karachi 337). However, in a case reported as "BANARIS KHAN versus The STATE and 2 others"
(2015 YLR 2076) Federal Shariat Court while dilating upon the issue of publication of confession of an accused in newspaper 4 days prior to its actual making held that in the light of judgment reported as 'Wattan Party v. Federation of Pakistan (PLD 2006 SC 697), Court can take judicial notice of news items. This observation is in line with provisions of Article 111 of Qanun-e-Shahadat Order 1984 which is as under; "111. Fact Judicially noticeable need not be proved: No fact of which the Court will take judicial notice need be proved."
Some misunderstanding in law prevails that Court can take judicial notice of only those facts which are listed in Article 112 of Qanun-e-Shahadat Order 1984, and of course newspaper or journal is not mentioned in such Article. Suffice it to say that such Article says that "Facts of which Court must take judicial notice" the word "must" make it obligatory for the Court to take judicial notice of all such facts listed in Article 112 ibid without asking for a formal proof. Whereas Article 111 ibid gives a discretion to the Court to take judicial notice of any fact not listed in Article 112 ibid, depending upon the circumstances of the case. Thus, Court can take judicial notice of a news clipping subject to the considerations that its admissibility depends on several factors, including the relevance to the case, the authenticity of the clipping, and whether the court deems it reliable.
11. However, as a general principle the Supreme Court of Pakistan has held in case reported as "WATTAN PARTY through President Versus FEDERATION OF PAKISTAN through Cabinet Committee of Privatization, Islamabad and others" (PLD 2006 Supreme Court 697) that following parameters must be met for the purpose of taking judicial notice of a newspaper report and articles: -
(i) Where direct evidence is not available.
(ii) Where it is sought to be proved that a person has notice of the contents of the newspaper report.
(iii) Where it is sought to be shown that a person is an author or otherwise responsible for the statement or article published in a newspaper which is to be used against him.
(iv) In cases of defamation.
(v) If the issue/occurrence is rather old and eye-witnesses are either wanting or less reliable.
Keeping in view the above parameters, it was held in a case reported as "ALIM-UD-DIN versus The STATE" (PLD 1982 Lahore 141) that newspaper reports may be admissible in evidence when testimony of a witness is not readily available. In another case reported as "Mrs. MAMOONA SAEED Versus GOVERNMENT OF THE PUNJAB and others" (2003 YLR 2397), it was held that newspaper clippings are admissible in evidence in case the same were not contradicted.
12. The third situation for use of press clippings is in the form of evidence produced by any party in criminal proceedings. It is consensus that press clipping is hearsay evidence and is not admissible under the law unless the author or reporter volunteers to appear as witness to prove the authenticity of the facts stated therein. Reliance in this respect is on cases reported as "Kh. IJAZ AHMED versus D.R.O. and others" (2001 YLR 448); "MANZOOR Versus THE STATE" (2010 YLR 602); "QURBAN ALI and another versus The STATE" (PLD 2014 Sindh 538); "Mst. SHAKILA BANO versus STATION HOUSE OFFICER, POLICE STATION MODEL COLONY, SIR, KARACHI and another" (PLD 1995 Karachi 555); "Ch. AAMIR SHAHZAD Versus MUHAMMAD MAKKI and 5 others" (2021 YLR 1641); "MUHMMAD ASHRAF KHAN Versus The STATE and another"(1996 SCMR 1747); "Malik MUHAMMAD MUMTAZ QADRI Versus THE STATE and others" (PLD 2016 Supreme Court 17).
13. Even the rule of hearsay is not absolute, for, it is subject to certain exceptions. One of these is that statements accompanying and explaining facts are not hit by the hearsay rule. Thus, even in the case of hearsay as observed in Halsbury's Laws of England (3rd Edn., Vol 15, at page 320) in estimating the weight to be attached to a statement "regard must be had to all circumstances from which any inference as to the accuracy or otherwise of the statement can reasonably be drawn, and in particular to the questions whether the statement was contemporaneous with the facts stated and whether the maker had any incentive to conceal or misrepresent the facts".
Explanatory facts are regarded as relevant facts as per Article 22 of Qanun-e-Shahadat Order 1984 which says that facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact............are relevant in so far as they are necessary for that purpose. In such situation, of course press clipping could be considered as explanatory evidence, that shall be read in conjunction with other evidence on the record, because press clipping as sole evidence cannot prove a fact beyond reasonable doubt.
14. It is trite that while considering material at bail stage, Court always acts inquisitorially to search for avenues of further inquiry into the guilt of accused, and thus, can consider any material, that can be transformed into admissible format at a later stage, in order to grant or decline bail to the accused. The above highlights on the subject of press clippings show that if author or reporter of press clipping appears in the dock, it could become admissible evidence; however, cogency whereof rests upon the intrinsic value of information, its reliability and source authentication which of course would be determined after recording of all the evidence in the case. Thus, Court can consider this piece of evidence at this stage as well. case rests on frail pillars. The above situation provides a premium to the petitioners to seek bail on the touchstone of further inquiry which is very much available in this case. Thus, petitioners have made out a case for further inquiry. Reliance in this respect is placed on cases reported as "MAZHAR ALI Versus The STATE and another" (2025 SCMR 318), "ZEESHAN Versus The STATE and another" (2024 SCMR 1716), "Mst. ISHRAT BIBI Versus The STATE through Prosecutor General, Punjab and another" (2024 SCMR 1528), "SAEED AHMED and another Versus The STATE" (PLD 2024 Supreme Court 1241), "SALMAN ZAHID Versus The STATE through P.G. Sindh" (2023 SCMR 1140) "GUL MUHAMMAD Versus The STATE" (2023 SCMR 857) & "MUHAMMAD NAEEM HASSAN Versus The STATE through P.G., Punjab and another" (2022 SCMR 523). Petitioners are behind the bars since 17.10.2024, investigation is complete and persons of the petitioners are not required for further investigation; thus, keeping them behind the bars for indefinite period would not serve any useful purpose to the prosecution.
16. In view of what has been discussed above, titled petitions are allowed and the petitioners are admitted to bail subject to furnishing bail bonds in the sum of Rs.500,000/- each with one surety each in the like amount to the satisfaction of the trial Court. However, above assessment of this Court is tentative in nature which shall not prejudice the case of either side during the trial.