Tasleem Khan through Muhammad Imran Khan Vs The State etc

Form No.HCJD/C-121

ORDER SHEET

LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Office Objection (Diary No. 73417/2026)

Tasleem Khan (through Muhammad Imran Khan, Special Attorney)

Vs.

The State and another

S.No. of Order/ Date of order/ Order with the signature of the Judge and that of the parties or counsel, Proceeding proceeding where necessary

02.07.2026 Mr. Mushtaq Ahmad Mohal, Advocate, for the Petitioner. Rana Tasawar Ali Khan, Additional Prosecutor General.

The Petitioner, Tasleem Khan, lodged FIR No.13/2025 dated 25.11.2025 under sections 420, 468 and 471 of the Pakistan Penal Code, 1860 (“PPC”), read with section 5(2) of the Prevention of Corruption Act, 1947, against Respondent No.2 and six others at Police Station ACE Circle, Sargodha. Respondent No. 2 applied to the Special Judge, Anti-Corruption, Sargodha, for pre-arrest bail, which was granted vide order dated 20.04.2026.

2.Tasleem Khan is presently working in Jeddah, Saudi Arabia, and has appointed Muhammad Imran Khan as his Special Attorney to pursue the above-mentioned case on his behalf. Aggrieved by the order dated 20.04.2026, Tasleem Khan has filed this application under section 497(5) of the Code of Criminal Procedure, 1898 (“Cr.P.C.”), through his special attorney, for cancellation of the pre-arrest bail granted to Respondent No.2. The office has raised an objection that this application cannot be entertained as it has been filed through an attorney. Mr. Mushtaq Ahmad Mohal, Advocate, contends that the objection is misconceived.

Opinion

3.The objection raises the question whether an application under section 497(5) Cr.P.C. is competent if the complainant presents it through a duly constituted attorney instead of filing it in person. The

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answer depends on two questions: who may invoke section 497(5), and whether its invocation involves any act which the law requires the complainant to perform personally.

4.Section 497(5) Cr.P.C. reads as under:

(5)A High Court or Court of Session and, in the case of a person released by itself, any other court may cause any person who has been released under this section to be arrested and may commit him to custody.

5.This provision confers a power on the court. It neither prescribes any procedure for its invocation nor restricts it to a defined class of applicants. In The State/Anti-Narcotics Force v. Malik Amir (2005 YLR 1411), a Division Bench of this Court held that these powers are akin to revisional powers, that their invocation “can be made on an application of any concerned person and, in the absence of any such application, by the court itself,” and that they can in no manner be confined to any specific class of persons because no such intention of the legislature flows from the provision. A consistent line of authority recognizes that a private person vitally interested in the prosecution, such as the complainant, a near relative of the deceased or an injured person, is competent to apply for cancellation of bail.1 The caution that the provision must not become an instrument of private vengeance goes to the merits of such an application and places no embargo on a genuinely interested person bringing any impropriety to the notice of the court.2 In Azeem-ud-Din v. Feroze Khan and another (2024 PCr.LJ 1364), this Court surveyed these authorities and, on their strength, overruled a locus standi objection against the son of a deceased complainant.

6.Since an application under section 497(5) Cr.P.C. brings to the notice of the court only the material on which it may act of its own motion, the identity of the person presenting it can hardly be jurisdictional. The Indian Supreme Court took the same view of Nazir Ahmad v. Latif Hussain and others (PLD 1974 Lahore 476); Khalid Mahmood v. Abdul Qadir Shah and others (1994 PCr.LJ 1784); Saleem Akram v. Muhammad Zakir Khan Changezi and another (1979 PCr.LJ 972); Dur Muhammad v. Bashir and others (1983 PCr.LJ 2053); and Shaista Qaiser v. Mir Hassan alias Miro and others (2004 MLD 420). As to the court’s power to act suo motu, see Zahir Ahmad Suri v. Wazir Ahmad Chughtai (1969 PCr.LJ 1161).

Nazar Muhammad v. The State and another (1977 PCr.LJ 277), as explained in Haji Behram Khan v. Akhtar Muhammad and others (1993 PCr.LJ 71).

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section 439(2) of the Indian Code of Criminal Procedure, 1973, which is in pari materia with our section 497(5). In R. Rathinam v. State by DSP (AIR 2000 SC 1851), advocates who were not parties to the case and had no personal connection with it petitioned for the cancellation of bail granted to the accused in a murder case, and the Madras High Court held their petitions to be not maintainable. Reversing, the Supreme Court observed that the power could be invoked by the State or any aggrieved party and could also be exercised suo motu.

“It is not disputed before us that the power so vested in the High Court can be invoked either by the State or by any aggrieved party. Nor is it disputed that the said power can be exercised suo motu by the High Court. If so, any members of the public, whether he belongs to any particular profession or otherwise, who has a concern in the matter can move the High Court to remind it of the need to invoke the said power suo motu. There is no barrier either in Section 439 of the Code or in any other law which inhibits a person from moving the High Court to have such powers exercised suo motu. If the High Court considers that there is no need to cancel the bail for the reasons stated in such petition, after making such considerations it is open for the High Court to dismiss the petition. If that is the position, it is also open to the High Court to cancel the bail if the High Court feels that the reasons stated in the petition are sufficient enough for doing so. It is, therefore, improper to refuse to look into the matter on the premise that such a petition is not maintainable in law.”

7.To meet the office objection, Mr. Mohal also relied upon Mirza Yahya Baig and another v. The State and others (2026 PCr.LJ 638) and drew an analogy from section 154 Cr.P.C. The analogy is inapt. Section 154 applies at the inception of the criminal process. It deals with information relating to the commission of a cognizable offence and does not require that such information must necessarily come from the person immediately affected by the offence. Section 497(5), by contrast, applies after bail has been granted and enables the court to recall that concession. The present objection, therefore, cannot be answered merely by reference to the wide terms of section 154 Cr.P.C. Nevertheless, since the decision was cited at the Bar and the question of lodging an FIR through an attorney is one on which the High Courts have differed, it is appropriate to examine it.

Rathinam has been consistently followed. See, for example, Puran v. Rambilas and another [(2001) 6 SCC 338] and Brij Nandan Jaiswal v. Munna alias Munna Jaiswal and another [(2009) 1 SCC 678].

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8.In Mirza Yahya Baig, where the Court was dealing with a pre-arrest bail application, it was argued that an FIR could not competently be lodged through an attorney. This Court repelled that objection and held that a duly authorized attorney may lawfully lodge an FIR and, where permissible, initiate criminal proceedings on behalf of his principal, and that, where the proceedings were initiated by the principal who later becomes unavailable or incapacitated, the attorney may continue them with the permission of the court. Two strands of reasoning are relevant for present purposes. First, section 154 Cr.P.C. requires only an informant: it identifies the informant, not the complainant, while Form No. 24.5(1) of the Police Rules, 1934, accommodates both. In the case before the Court, the recitals of the FIR were the oral account of the principal, who had personal knowledge of the facts, and the attorney was named only as the informant. Secondly, an FIR is not meant to determine guilt or innocence but to prompt law enforcement agencies to act immediately to collect and preserve evidence. The commission of a crime is a public wrong, and reporting it is the discharge of a public rather than merely a personal function. The criminal law may accordingly be set in motion by any person possessing information about the offence, irrespective of whether he is the victim or an aggrieved person.

9.There is, however, another line of cases which takes a restrictive view of the matter. In Muhammad Qasim v. SHO Khudabad, District Dadu, and others (2016 MLD 1238) and Usman Saleem v. ADJ-III Karachi East and others (2021 PCr.LJ Note 66), the Sindh High Court held that an attorney cannot, in that capacity, lodge an FIR or file a criminal complaint. The reasoning is conceptual: criminal administration of justice recognizes as a witness or complainant only one who has seen, heard, or at least perceived some fact relating to the offence. An attorney, by definition, does not speak from his own knowledge but for his principal and therefore does not fall within the meaning of “witness/complainant.” On that basis, both judgments hold in terms that “an attorney cannot legally, under such status of attorney, file the FIR or a criminal complaint.” Significantly, Muhammad Qasim accepts that anybody may set the

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law in motion but draws the distinction that he may do so as a person, “not as an attorney.”

10.With respect, the above authorities do not govern the present case. First, both decisions arose in the context of complaints under the Illegal Dispossession Act, 2005, where the complainant’s possession and dispossession were themselves material facts. Secondly, the present proceeding is not the lodging of an FIR or the filing of a criminal complaint. It is an application under section 497(5) Cr.P.C., which merely invites the Court to consider whether a concession of bail already granted should be recalled. Thirdly, this Court has taken a different approach in Mirza Yahya Baig, and, for this Court, that decision holds the field. The divergence, therefore, need not be resolved in the abstract. Even if the restrictive Sindh view is kept in view, it does not render the present application incompetent.

11.There remains the question whether the nature of an application under section 497(5) Cr.P.C. requires the complainant’s personal presentation or participation. It does not. The Code recognizes stages at which an act must be performed personally, particularly on the accused’s side of the criminal process. An accused may be required to answer the charge personally, to explain the incriminating circumstances under section 342 Cr.P.C., and to depose personally if he elects to make a statement on oath under section 340(2) Cr.P.C. These acts involve the accused’s own plea, explanation or testimony. A complainant who seeks cancellation of bail performs no comparable act when filing the application. Therefore, unless the attorney is required to depose to facts within the complainant’s personal knowledge, the complainant’s absence from Pakistan does not, by itself, render the application incompetent.

12.Two safeguards must, however, be observed. First, the attorney’s authority must be verified from the instrument under which he acts. The special power of attorney must authorise the institution and pursuit of the present proceeding, and the attorney cannot travel beyond his mandate. Secondly, any affidavit sworn by the attorney must be confined to facts within his own knowledge or facts borne out

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from the record. He cannot depose to matters which are exclusively within the personal knowledge of the complainant.

13.In the present case, the Petitioner has executed a Special Power of Attorney dated 12.11.2025 in favour of Muhammad Imran Khan, which I have examined. It authorises him to institute and pursue proceedings relating to the alleged transaction and disputed documents, including consequential proceedings before the competent forum. The first safeguard is thus satisfied: the attorney acts within, and not beyond, his mandate. The Powers of Attorney Act, 1882, and the general law of agency give legal effect to acts done by the attorney within the scope of his authority. They are not, however, the source of the competence to move this Court, which rests on the nature of section 497(5) Cr.P.C. itself. As to the second safeguard, the application rests on the record of the case, namely the FIR, the order dated 20.04.2026 and the grounds urged against it, and calls for no deposition on matters exclusively within the Petitioner’s personal knowledge. Nothing that the attorney is required to do at this stage requires the Petitioner’s participation. To require the Petitioner to present the application himself would add a condition that the statute does not impose.

14.For the above reasons, the office objection is overruled. The office shall register this application and fix it for hearing in accordance with the law.

(Tariq Saleem Sheikh) Judge

Approved for reporting

Judge