Sheraz Sikander Vs SHO, PS Mingora & others

JUDGMENT SHEET

PESHAWAR HIGH COURT

MINGORA BENCH

(Judicial Department) W.P No. 91-M/2025 Sheraz Sikandar son of Sikandar Khan (Petitioner) vs SHO, P.S Mingora & others (Respondents) Present: Mr. Ajmal Zia Khan, AHC, for petitioner.

Mr. Imran Khan, Astt: A.G, for respondents.

Date of hearing: - 15.7.2025

JUDGMENT

SALAH-UD-DIN, J.- Through instant writ petition filed under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, petitioner seeks issuance of an appropriate direction to respondent No. 2 to issue him Clearance Certificate, citing the following prayer:- “In view of the foregoing, it is respectfully prayed that this Honorable Court may be pleased to:- a) Direct Respondent No. 2 to issue a police clearance certificate to the petitioner, free from any adverse remarks or mention of FIR No. 1078 dated 26.10.2022, as the petitioner has already been acquitted of the charges leveled against him in the said FIR.

b) Declare that the inclusion of details of FIR No. 1078 in the police clearance certificate is unlawful, arbitrary, and violative of the petitioner's fundamental rights as guaranteed under the Constitution of the Islamic Republic of Pakistan, 1973, the FIR, criminal history deletes from computer & register of Criminal record from register No.9. c) Direct the local police to update their record and thereafter issue Police Clearance Certificate to the petitioner without mentioning the above- mentioned FIR therein.

Nawab (D.B.) Hon”ble Mr. Justice Sabit Ullah Khan Hon”ble Mr. Justice Salah-ud-Din

d) Grant any other relief deemed just and proper by this Honorable Court in the interest of justice and to safeguard the petitioner's fundamental rights.

2.Arguments of learned counsel for

petitioner as well as learned Astt: A.G for State were heard and available record gone through with their able assistance.

3.In essence, grievance of present petitioner is that an FIR No. 1078 dated 26.10.2022, U/S 380 PPC was registered against him at P.S Mingora, District Swat. In the same criminal case, upon completion of investigation, challan was submitted before learned trial Court. Charge was framed against the petitioner, to which he pleaded not guilty and claimed trial. Later on, petitioner was acquitted of the charge in ibid criminal case by learned Judicial Magistrate Swat vide its order dated 28.10.2023, on the basis of compromise arrived at between the parties. Now present petitioner intended to go abroad for earning his livelihood, therefore, he approached respondent No. 2 i.e. District Police Officer, Swat for issuance of “Police Clearance Certificate”, however, same was refused to him citing the reason of pendency of ibid criminal case, wherein the petitioner has Nawab (D.B.) Hon”ble Mr. Justice Sabit Ullah Khan Hon”ble Mr. Justice Salah-ud-Din

already been acquitted, albeit on the basis of compromise.

4.It is an admitted fact on both ends that present petitioner has earned an honorable acquittal in the aforementioned case registered against him at P.S Mingora, on the strength of FIR No. 380 and there is nothing on the available record which would suggest that petitioner has been convicted in any other case.

During the course of arguments, learned Astt: A.G appearing on behalf of respondents was also asked as to whether there is any express order of competent Court of law wherein petitioner has been convicted for a crime under some penal statute and was sentenced to some form of imprisonment or fine, he was unable to show or produce any such order. In such circumstances, it prima facie seems, that local police have wrongly declined request of present petitioner for issuance of “Clearance Certificate”. In its recent judgment rendered in case titled Afzal Izaz Khan vs.

Government of Khyber Pakhtunkhwa through Provincial Police Officer / Inspector General of Police at Peshawar and others (W.P No. 1009- M/2023), this Court has elaborately dealt with Nawab (D.B.) Hon”ble Mr. Justice Sabit Ullah Khan Hon”ble Mr. Justice Salah-ud-Din

controversy akin to instant one and has laid it to rest, in the following manner:

“Since the alleged conviction of the petitioner was the sole ground of excluding him from the run, so it was imperative that some specific order of conviction finding the petitioner guilty of an offence must bear out from the record made available to the court. It is however irksome to note that entire edifice of the case of respondents was built upon some conviction of the petitioner in an offence involving moral turpitude but nothing of that sort was traceable on court file in black and white. Learned AAG representing the respondents was repeatedly asked to show an express order of the competent court of law holding that the petitioner was convicted for a crime under some penal statute and was sentenced to some form of imprisonment or fine. Ironically, no such order was shown to us by the respondents either from the comments and record annexed therewith or otherwise. As there was no conviction available on record indicting the petitioner for any crime, so the debate of validity of Circular Order No. 01/2020 or its application upon the present or future cases has been rendered entirely superfluous and out of context. Therefore, we would refrain from delving into the domain of determining the validity or otherwise of the Circular ibid and would confine to decide the question that was necessary for disposal of the instant case, which primarily was whether the petitioner was a convict or not.

5.We appreciate that word “convict” or “conviction” for that matter has nowhere been expressly defined either in Pakistan Penal Code, 1860 (PPC) or in Criminal Procedure Code, 1898 (Cr.PC) but these words have been used often in different Sections of the two enactments. So as to understand their true import and meaning, one may refer to section 265H of the Cr.PC where it has been made Nawab (D.B.) Hon”ble Mr. Justice Sabit Ullah Khan Hon”ble Mr. Justice Salah-ud-Din

mention of in the heading of the Section but in the body of main section it has been substituted by the expression, “Court finds the accused guilty”. For the sake of brevity, said Section is reproduced below; “265-H. Acquittal or conviction. (1) If in any case under this Chapter in which a charge has been framed the Court finds the accused not guilty, it shall record an order of acquittal.

(2)If in any case under this Chapter the Court finds the accused guilty the Court shall, subject to the provisions of Section 265-I, pass a sentence upon him according to law.”

The above Section of law conspicuously implies that conviction comes upon conclusive finding of guilt which is then followed by sentence or penalty. There cannot be a situation where sentence or penalty is imposed without there being a finding of guilt recorded by the court of law.

6.Even dictionary meaning of words “convict” and “conviction” are examined by us to understand its meaning and for the facility of reference same are reproduced herein;

Convict To condemn; to find guilty of an offence (usually) by a judgment of Court or by the verdict of a jury; to prove or find guilty of an offence or crime charged; to pronounce guilty as by legal decision. A rare use is “to find against a defendant in a civil case.

A convict is one who has been condemned by a competent Court; one who has been convicted of a crime or misdemeanour. And a person committed to prison upon a summary conviction or in default of payment of a penalty or fine adjudged to be paid upon Nawab (D.B.) Hon”ble Mr. Justice Sabit Ullah Khan Hon”ble Mr. Justice Salah-ud-Din

such conviction is to be regarded as a criminal prisoner.” Conviction The act of a legal tribunal adjudging a person guilty of an offence; finding of guilty; strong belief.

Condemnation; finding of guilt; the finding of a person guilty of an offence; the judgment of guilty pronounced against the accused by the proper tribunal, and the mode prescribed by law. The concept of “conviction” as known to the criminal jurisprudence is conviction by a Court of competent jurisdiction and would hardly fall within the domain of the administrative authority. [P Ramanatha Aiyar The Major Law Lexicon 4th Edition 2010] So, even if one assumes for the sake of arguments, that as if there was some penalty against the petitioner in the form of imposition of fine of Rs. 1,000/- purportedly in an offence u/s 4PO, which it was found nowhere, the same would not constitute a conviction unless there is a finding of guilt of an offence under some specific provision of penal statute.

7.As we have not been able to find any such conviction against the petitioner, therefore, we have no other option but to conclude that the impugned action of the respondents was based upon entirely irrelevant considerations and same was amenable to judicial review. Resultantly, we allow this writ petition and set-aside the orders of District Police Officer, Dir (Lower) available at page 43 of the writ petition, by holding that in absence of any conviction / finding of guilt recorded against the petitioner under a specific provision of penal law of land, he could not be held to be a convict and based on that he could not be relegated ineligible for the post in question by application of Circular No. 01/2020. We also hold that in Nawab (D.B.) Hon”ble Mr. Justice Sabit Ullah Khan Hon”ble Mr. Justice Salah-ud-Din

the entire episode, the petitioner has not been treated in accordance with law.

Therefore, we direct the respondents to consider his candidature valid for the post in question and make his appointment if he is otherwise found to be fit on merit as devised by the respondents.”

5.In view of above, when no such

conviction against present petitioner is available on face of record unless brought by police authority to the contrary, then this Court is left with no other option but to hold that impugned actions of respondent No. 2 by declining request of petitioner for issuance of Clearance Certificate were entirely based on irrelevant considerations.

6.For what has been discussed hereinabove, instant writ petition is allowed as prayed for and respondent No. 2 is directed to issue Clearance Certificate to petitioner without mentioning any remarks with regard to his previous involvement in the referred to above case, wherein present petitioner had already been acquitted by a Court of competent jurisdiction.

Announced Sd/- Dt: 15.7.2025 JUDGE

Sd/-

JUDGE

Nawab (D.B.) Hon”ble Mr. Justice Sabit Ullah Khan Hon”ble Mr. Justice Salah-ud-Din