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2015 S C M R 1570
[Supreme Court of Pakistan]
Present: Asif Saeed Khan Khosa, Ejaz Afzal Khan and Iqbal Hemeedur Rahman, JJ
MUHAMMAD ADNAN alias DANA---Petitioner
Versus
THE STATE and others---Respondents
Criminal Petition No. 433 of 2015, decided on 19th August, 2015.
(Against the order dated 6-4-2015 passed by the Lahore High Court, Lahore in Criminal
Miscellaneous No.1 of 2015 in Criminal Appeal No.645 of 2015)
Supreme Court Rules, 1980------O. XXIII, R. 8, proviso---Constitution of Pakistan, Art. 185(2)---Petition for leave to appeal---Criminal
proceedings---Stay of execution of order of Trial Court for imprisonment pending disposal of a petition for
leave to appeal before the Supreme Court---Bar under proviso to O.XXIII, R.8 of the Supreme Court Rules,
1980, that "unless surrender was first made to an order of imprisonment, petition for leave to appeal shall not
be entertained"---Scope---Petitioner, in the present case, was convicted and sentenced by Trial Court, and at
time of announcement of judgment by Trial Court, petitioner slipped away and non-bailable warrants of
arrest had been issued against him---Petitioner thereafter filed appeal against conviction and sentence before
the High Court and vide miscellaneous application sought suspension of sentence; which application was
dismissed by High Court---Question before the Supreme Court was "whether the petition for leave to appeal
against impugned order of High Court could be entertained in view of the bar contained in proviso to
O.XXIII, R.8 of the Supreme Court Rules, 1980"---Contention of petitioner was that after recording of his
conviction and sentence by the Trial Court, he had surrendered before the High Court at the time of hearing
of his application seeking suspension of sentence; hence his petition for leave to appeal should be
entertained---Held, that per O.XXIII, R.8 of the Supreme Court Rules, 1980; surrender to an order of
imprisonment was a condition precedent for entertainment of petition for leave to appeal and it was only after
a valid and proper entertainment of such petition that the relief regarding stay of execution of the order for
imprisonment or fine could be granted---Requirement of surrender to an order of imprisonment pertained
only to criminal petitions involving an order of imprisonment; for example, cases where a conviction had
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 had been passed that he may
be taken into custody and the same did not apply to criminal petitions seeking bail before arrest in a criminal
case where no order of imprisonment had so far been passed---Trial Court, in the present case, had convicted
and sentenced the petitioner and had simultaneously passed an order that the petitioner, who was on bail till
then, was to be arrested and lodged in jail to serve his sentence of imprisonment---When the petitioner
slipped away from the Trial Court, the Court had also issued perpetual non-bailable warrants for his
arrest---Two orders of imprisonment already stood outstanding against the petitioner and admittedly he had
not surrendered to the said orders of imprisonment so far---Surrender to an order of imprisonment was not the
same thing as surrendering before a higher court without actually being imprisoned in compliance of a

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judicial order passed in such regard---Present petition for leave to appeal filed by the petitioner could not be
entertained till he surrendered to his orders of imprisonment, as made explicit by the first proviso to R.8 of
O.XXIII of the Supreme Court Rules, 1980---Petition for leave to appeal, being not maintainable, was
dismissed, in circumstances.
Mazhar Ahmed v. The State and another 2012 SCMR 997 and Musharaf Khan v. The State 1985
SCMR 900 distinguished.
Tariq Mehmood Butt, Advocate Supreme Court with Petitioner in person.
Nemo for Respondents.
Date of hearing: 19th August, 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 23-7-2015
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 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.1 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 6-4-2015 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 15-6-2015 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 29-6-2015 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
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

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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 before arrest in a criminal case where no order of imprisonment has so far been passed.
In the case in hand on 27-3-2015 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 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

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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.
KMZ/M-35/SC

Petition dismissed.

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