IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
 
PRESENT: 
Mr. Justice Asif Saeed Khan Khosa 
Mr. Justice Ejaz Afzal Khan 
Mr. Justice Iqbal Hameedur Rahman 
 
 
 
Criminal Petition No. 433 of 2015 
(Against the order dated 06.04.2015 passed by the Lahore High 
Court, Lahore in Criminal Miscellaneous No. 01 of 2015 in 
Criminal Appeal No. 645 of 2015) 
 
 
 
Muhammad Adnan alias Dana 
…Petitioner 
 
 
 
 
 
versus 
 
 
The State, etc. 
 
 
     …Respondents 
               
 
 
For the petitioner: 
Mr. Tariq Mehmood Butt, ASC 
with the petitioner in person.  
 
For the respondents: 
N.R. 
 
 
Date of hearing: 
 
 
19.08.2015  
 
 
 
 
ORDER 
 
Asif Saeed Khan Khosa, J.: Muhammad 
Adnan 
alias 
Dana petitioner was convicted for an offence under section 9(b) of 
the Control of Narcotic Substances Act, 1997 vide judgment dated 
23.07.2015 handed down by the learned Additional Sessions 
Judge, Faisalabad and was sentenced to rigorous imprisonment for 
seven months and a fine of Rs. 9,000/- or in default of payment 
thereof to undergo simple imprisonment for two months. It is of 
some 
importance 
to 
mention 
here 
that 
at 
the 
time 
of 
announcement of the judgment by the trial court the petitioner 
Criminal Petition No. 433 of 2015 
 
2
had slipped away and resultantly perpetual non-bailable warrants 
of arrest had been issued by the trial court against him. The 
petitioner filed Criminal Appeal No. 645 of 2015 before the Lahore 
High Court, Lahore challenging his conviction and sentence and 
also filed Criminal Miscellaneous No. 01 of 2015 seeking 
suspension of his sentence during the pendency of his appeal. The 
said appeal was admitted to regular hearing by the High Court on 
06.04.2015 but on the same date the miscellaneous application 
filed by the petitioner seeking suspension of his sentence was 
dismissed because of the conduct of the petitioner displayed before 
the trial court. Hence, the present petition before this Court.  
 
2. 
Upon filing of this petition by the petitioner the office of this 
Court had raised an objection regarding its entertainability in view 
of the provisions of Order XXIII Rule 8 of the Supreme Court Rules, 
1980 which objection of the office was assailed by the petitioner 
before a learned Judge-in-Chamber of this Court through Criminal 
Miscellaneous Appeal No. 20 of 2015. On 15.06.2015 a learned 
Judge-in-Chamber of this Court had directed the main petition to 
be fixed before a Bench of this Court  which would consider the 
question of maintainability of this petition and would then decide 
the petition on its merits, if need be. This petition was fixed before 
a Bench of this Court on 29.06.2015 and on that occasion the 
hearing of the matter was adjourned with an observation that the 
question of maintainability of this petition would be adjudicated 
upon by the Court on the next date of hearing besides considering 
the merits of the case, if found necessary. The present petition has 
now been fixed for hearing today and we have heard the learned 
counsel for the petitioner at some length. The learned counsel for 
the petitioner has mainly contended that after recording of his 
conviction and sentence by the trial court the petitioner had 
surrendered before the High Court at the time of hearing of his 
miscellaneous application seeking suspension of sentence and, 
thus, the High Court ought to have decided the said miscellaneous 
application on its merits. In support of this submission the learned 
Criminal Petition No. 433 of 2015 
 
3
counsel for the petitioner has placed reliance upon the case of 
Mazhar Ahmed v. The State and another (2012 SCMR 997).  
 
3. 
After hearing the learned counsel for the petitioner and going 
through the relevant record of the case appended with this petition 
we have observed that the objection raised by the office to 
entertainability of the present petition is grounded in the 
provisions of Order XXIII Rule 8 of the Supreme Court Rules, 1980 
which read as follows: 
 
“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.”  
 
A bare reading of the above mentioned first proviso to Rule 8 of 
Order XXIII of the Supreme Court Rules, 1980 makes it 
abundantly clear that a criminal petition is entertainable by the 
office of this Court only after a surrender is made by the petitioner 
to an order of imprisonment outstanding against him and after 
entertaining of such a petition after such surrender to the order of 
imprisonment this Court may stay execution of the order of 
imprisonment or fine. Surrender to an order of imprisonment is, 
thus, a condition precedent for entertainment of such a petition 
and it is only after a valid and proper entertainment of such 
petition that the relief regarding stay of execution of the order for 
imprisonment or fine can be granted. It is also quite clear that the 
requirement of surrender to an order of imprisonment pertains 
only to criminal petitions involving an order of imprisonment (e.g., 
cases where a conviction has been recorded or upheld and an 
express order has been passed that the petitioner may be taken 
into custody or cases where bail of the petitioner has been 
disallowed or cancelled and an order has been passed that he may 
be taken into custody) and not to criminal petitions seeking bail 
Criminal Petition No. 433 of 2015 
 
4
before arrest in a criminal case where no order of imprisonment 
has so far been passed. In the case in hand on 27.03.2015 the trial 
court had convicted and sentenced the petitioner for an offence 
under section 9(b) of the Control of Narcotic Substances Act, 1997 
and had simultaneously passed an order that the petitioner, who 
was on bail till then, was to be arrested and lodged in a jail to serve 
his sentence of imprisonment and upon slipping away of the 
petitioner from the trial court on that occasion the said court had 
also issued perpetual non-bailable warrants for the petitioner’s 
arrest. It is, thus, obvious that not one but two orders of 
imprisonment already stand outstanding against the petitioner and 
admittedly he has not surrendered to the said orders of 
imprisonment so far. It goes without saying that surrender to an 
order of imprisonment is not the same thing as surrendering before 
a higher court without actually being imprisoned in compliance of 
a judicial order passed in that regard. In this view of the matter we 
have entertained no manner of doubt that the present petition filed 
by the petitioner is not entertainable till he surrenders to the above 
mentioned orders of imprisonment, as made explicit by the first 
proviso to Rule 8 of Order XXIII of the Supreme Court Rules, 1980. 
Reliance placed by the learned counsel for the petitioner upon the 
case of Mazhar Ahmed v. The State and another (supra) has been 
found by us to be inapt because in that case no discussion was 
made about the provisions of the first proviso to Rule 8 of Order 
XXIII of the Supreme Court Rules, 1980 and at the fag end of the 
judgment passed by this Court in that case a reference was made 
to the second proviso to Rule 8 of Order XXIII of the Supreme 
Court Rules, 1980 in the context of a precedent case cited before 
the Court. The judgment passed by this Court in that case is not 
relevant to the point in issue in the present petition because what 
is relevant to the present petition is the first proviso to Rule 8 of 
Order XXIII of the Supreme Court Rules, 1980 and not the second 
proviso to the said Rule. We have also observed that in the case of 
Musharaf Khan v. The State (1985 SCMR 900) leave to appeal had 
been granted by this Court to consider as to whether a person 
could approach this Court for his bail before arrest in a criminal 
Criminal Petition No. 433 of 2015 
 
5
case by surrendering before this Court or not but that issue again 
is not relevant to the present petition as the present petition 
pertains to suspension of sentence or stay of execution of an order 
for imprisonment and not to bail before arrest which matter is 
regulated by the second proviso to Rule 8 of Order XXIII of the 
Supreme Court Rules, 1980 and not the first proviso to that Rule.  
 
4. 
For what has been discussed above we have found that the 
present petition is not entertainable because the mandatory 
requirement 
of 
surrender 
to 
an 
order 
of 
imprisonment 
contemplated by the first proviso to Rule 8 of Order XXIII of the 
Supreme Court Rules, 1980 has not been fulfilled by the petitioner. 
In this view of the matter the objection raised by the office 
regarding entertainability of this petition is sustained and this 
petition is dismissed on that score.  
 
 
Judge 
 
 
Judge 
 
 
Judge 
 
Islamabad 
19.08.2015 
Not approved for reporting.  
Arif 
 
 
