IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
CRIMINAL MISC. APPEAL No. 30 OF 2022 IN
IN
CRIMINAL PETITION NO. NIL OF 2022
Atif Ali and others
Abdul Basjt and another 
VERSUS
Applicants
Respondents
PRAYER
"this Court may graciously by accepting this appeal set aside
order dated 14.07.2322 of the office of the learned Registrar
and instant Criminal Petition may be entertained and -
numbered accordingly and the same be placed before an
Hon'ble Bench of this Court for decision on merits in
accordance with law. Any other relief which this Court
deems fit and proper may also be awarded to the applicants
to meet the ends of justice"
For the Applicants: 
Mr. Kamran Murtaza, Sr. ASC
For the Respondents. 
Nemo
Date of Hearing: 27.09.2022
ORDER
The applicants were allowed bail before arrest by the
learned ASJ, Dalbandin in case registered vide FIR No. 41/2021 under
Sections 302/324/147/148/149 PVC at Police Station Dalbandjn but their
bail was recalled/cancelled by the learned High Court vide order dated
30.06.2022. Their pre-arrest bail petition before this Court has not been
entertained by the office by placing reliance on Order XXIII Rule 8 of the
Supreme Court Rules, 1980 and a judgment of this Court reported as
Muhammad Adnan Vs. The State (2015 SCMR 1570) which led to filing of
instant Criminal Miscellaneous Appeal.
2. I have heard learned counsel for the applicants and have
perused the relevant case law.
ff1
Cr1. Misc. Appeal No. 3012022 
2
3. The office objection raised by the institution Officer of this
Court is misconceived The bar contained in first proviso to Rule 8 Order
XXIII of the Supreme Court Rules, 1980, does not apply to the case in hand
because of the reason that no order of imprisonment or fine as contained
in Rule 8 ibid is challenged before this Court and, as such, the said bar is
not applicable to the present case. It would be in order to reproduce the
said provision which reads as under:-
'8. Pending the disposal of a petition under this Order, the
Court may direct that execution of any order for imprisonment or
fine, against which leave to appeal is sought, be stayed, on such
terms as the Court may deem fit:
Provided that unless surrender is first made to an order of
imprisonment as above, the petition shall not be entertained
Provided further, petitions involving bail before arrest may
be entertained and posted for hearing if the petitioner undertakes
to appear and surrender in Court."
4. The case of the applicants is entirely on different footing and
the same is not sensitized by first proviso to Rule 8, which requires
surrender to an order of imprisonment before availing the opportunity of
filing petition before this Court. In the instant case, the matter pertains to
recalling of the order of pre-arrest bail granted to the applicants by the
learned Trial Court. in this regard, my view is fortified by the judgment of
this Court reported as Zahid Vs. The State (PIn 1991 SC 379) wherein it has
been held that bar contained in Rule 8 Order XXIII does not apply in such
like cases. It would be advantageous to reproduce relevant portion of the
judgment which reads as under:-
"It is manifest from the terms of the first proviso that unless
surrender is made to an order of imprisonment the petition shall
not be entertained
Now in this case there is no order of imprisonment that is
challenged and the order which is challenged is the order
canceling the bail granted to the appellants by the Additional
Sessions Judge. Accordingly, the bar contained in the first proviso
of Rule 8 does not apply in the circumstances of the present
case."
Cd. Misc. Appeal No. 30/2022 
3
S. Even otherwise, I have noted that in the instant case, second
proviso to Rule 8 would be applicable, which states that the petitions
involving bail before arrest may be entertained and posted for hearing if
the petitioner undertakes to appear and surrender in Court. Learned
counsel for the applicants stated at the bar that the applicants are ready
and willing to appear and surrender before this Court. Reliance in this
regard is placed on the case of Zahid Afzal Vs. The State (PLD 1991 SC 382)
wherein in similar situation, when the petitioners surrendered themselves
before this Court, the petition for bail before arrest was entertained by
this Court.
6. In view of the above, I am of the considered view that the
office objection raised by the Institution Officer is not sustainable in the
eye of law and the same is overruled. The instant Criminal Miscellaneous
Appeal is allowed. Office is directed to entertain the petition and, as it is a
bail petition) fix the same in court in the next week.
(Justice Sad
edMazhar All 2Naqvi)
Approved For Reporting
