MLD 2008 Judgments

2008 M L D 1697

[Enrolment Committee Pakistan Bar Council]

Before Justice Faqir Muhammad Khokhar, Chairman and M. Ramzan Chaudhry, Member

MUHAMMAD ASHRAF and 4 others---Appellants

Versus

CHAIRMAN, N.-W.F.P, BAR COUNCIL, PESHAWAR and others---Respondents

Enrolment Appeals Nos. 14, 15, 16 of 2005 and 20 and 24 of 2007, decided on 10th May, 2008.

Legal Practitioners and Bar Councils Act (XXXV of 1973)---

----Ss. 26 & 32---Pakistan Legal Practitioners and Bar Councils Rules, 1976, R.112---N.-W.F.P. Legal Practitioners Rules, 2005, R.5.11---Appeal---Enrolment of retired persons as advocates--- Appellants, who were retired from service of government or other organizations were Law graduates; they, after completing period of apprenticeship, made applications for enrolment as advocates under N.-W.F.P. Legal Practitioners and Bar Councils Rules, 1974, but said applications were turned down by the Bar Council on the ground of their attaining the age of superannuation---Validity---Section 26 of Legal Practitioners and Bar Council Act, 1973, prescribed only a qualification of minimum age of 21 years for enrolment as an advocate---Even the Pakistan Legal Practitioners and Bar Councils Rules, 1976, did not disqualify a person to be enrolled as an advocate on the basis of his having retired from service on attaining the age of superannuation---No legal justification had been shown .to deprive the appellants from being enrolled as advocates and deny them right to enter upon the profession of law as guaranteed Art.18 of the Constitution as it would be unreasonable and unfair to make an invidious distinction on the basis of upper age of appellants---Rule 5.11 of N.-W.F.P. Legal Practitioners Rules, 2005, would offend the fundamental right of a citizen to have the equal protection of law and to be treated alike as guaranteed by Art.25 of the Constitution---Upper age limit of the appellants for enrolment had no nexus with the object of Pakistan Legal Practitioners and Bar Councils Act, 1973---Rule 5.11 of N.-W.F.P. Legal Practitioners Rules, 2005, was ex-facie discriminatory and arbitrary---Impugned orders passed by N.-W.F.P. Bar Council, being not sustainable at law, were set aside and N.-W.F.P. Bar Council was directed to proceed with the applications of the appellants afresh on their merits and in accordance with law.

Messrs M.Y. Electronics Industries (Pvt.) Ltd. v. Government of Pakistan through Secretary Finance 1998 SCMR 1404; Messrs Gadoon Textile Mills v. WAPDA and others 1997 SCMR 641; Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan 1992 SCMR 1652; Indian Council of Legal Aid and Advice, and others v. Bar Council of India and another AIR 1995 SC 691; M. Rakhakrishana v. The Secretary, Bar Council of India AIR 2007 Madras 108; Rehmatullah v. University of the Punjab PLD 1982 Lah. 411 and University of the Punjab and 2 others v. Rehmatuallah PLD 1982 Lah. 729 rel.

Zahoor Qureshi, Advocate Supreme Court (for Appellants in Appeal No. 16/2005).

Appellants in person in all other appeals.

Date of hearing: 10th May, 2008.

2008 M L D 1571

[Islamabad]

Before Syed Qalb-i-Hassan Shah and Raja Saeed Akram Khan, JJ

HASHWANI HOTELS LTD. through General Manager---Appellant

Versus

CAPITAL DEVELOPMENT AUTHORITY through Chairman and another---Respondents

Regular First Appeal No. 86 of 2006, decided on 10th July, 2008.

(a) Capital Development Authority Ordinance (XXIII of 1960)---

----S. 51---Capital Development Authority (Conduct of Business) Regulations, 1985, Sched. II---Cancellation of allotment of land by Director Estate Management, C.D.A. on default of highest bidder---Validity---Bidder had deposited more than 50% amount---Possession of land had not been delivered to the bidder on ground of encroachment by different persons and pendency of litigation between previous lessee and C.D.A.---File of land was in possession of F.I.A. in connection with F.I.R. registered against bidder and ex-Chairman of C.D.A.---Such factors had resulted in delay in payment of balance amount by bidder---C.D.A. could not invoke condition regarding payment of instalments without first fulfilling condition with respect to delivery of actual physical possession of land to bidder---Bidder, after learning through newspaper about intention of C.D.A. to cancel allotment, deposited entire balance amount along with delayed charges, but same were returned to bidder---Such conduct of C.D.A. proved its mala fide to cancel such allotment in any event---Bidder, after one or two days of impugned cancellation, had deposited entire amount along with delayed charges even without getting possession of land, which showed his bona fide---Cancellation of allotment by Director Estate Management was without jurisdiction and lawful' authority---High Court set aside impugned cancellation order and directed C.D.A. to deliver actual possession of land clear from all encroachments immediately on deposit of amount claimed from bidder.

Capital Development Authority v. Mrs. Shaheen Farooq 2007 SCMR 1328; Capital Development Authority v. Zahid Iqbal PLD 2004 SC 99; Muhammad Din and others v. Jamal Din 2007 SCMR 1091 and Messrs Essems Hotels (Pvt.) Ltd. v. CDA (Writ Petition No.2816 of 1997) and Civil Petition No. 887 of 1998 ref.

(b) Interpretation of documents---

----Whole document must be read and considered in totality.

S. Naeem Bokhari and Yousaf Anjum for appellant.

Barrister Masroor Shah for Respondents.

Date of hearing: 23rd June, 2008.

2008 M L D 1648

[Islamabad]

Before Muhammad Munir Paracha and Syed Qalb-i-Hassan, JJ

Ch. KHALID MEHMOOD---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN through Secretary Election Commission, Islamabad and 16 others---Respondents

Writ Petition No. 49 of 2008, decided on 29th May, 2008.

Representation of the People Act (LXXXV of 1976)---

---Ss. 14, 68 & 103---Constitution of Pakistan (1973), Arts. 199 & 225---Constitutional petition---Maintainability---Election of Provincial Assembly---Result sheets prepared by Returning Officer showing difference regarding number of votes secured by petitioner---Petitioner seeking recounting of votes after notification of election result---Question of facts involved in such case could not be resolved by High Court in constitutional jurisdiction---Such controversy could only be resolved by Election Tribunal---Election petition had not yet been filed by any candidate---High Court sent constitutional petition to Election Commission for treating same as an election petition and entrust same to Election Tribunal requiring petitioner to fulfil procedural requirements of an election petition.

Asghar v. Punjab Local Councils Election Authority, Lahore and 4 others 1999 SCMR 1123 and Shahid Khan v. Senior Civil Judge/ Returning Officer and 9 others 2002 MLD 1945 rel.

Raja Ibrahim Satti for Petitioner.

Dr. Khalid Ranjha for Respondent No.5.

Date of hearing: 20th May, 2008.

2008 M L D 12

[Karachi]

Before Nadeem Azhar Siddiqi, J

ANWER MOORAJ---Plaintiff

Versus

FATEH FARUKH---Defendant

Suit No. 1167 of 2004, decided on 28th September, 2007.

(a) Damages---

----Suit for---Fraudulent transaction of sale of property---Advance payment of Rs.3,00,000 to defendant---Non-existence of property agreed to be sold by defendant---Plaintiff's claim for damages of Rs.40,00,000 on account of commission of such fraud by defendant, mental agony, tension, torture and loss of business profit from re-sale of property---Un­rebutted claim of plaintiff due to non-filing of written statement by defendant---Validity---Plaintiff due to such fraudulent conduct of defendant became entitled to claim refund of such advance payment---Plaintiff had not mentioned the profit expected to be-earned from resale of property---Plaintiff had not given calculation as to how he had suffered loss of forty lac---Plaintiff had not claimed special damages, but had claimed only general damages---No hard and fast rule existed for granting of general damages---Amount of damages assessed by court must not appear to be punitive in nature or exemplary---Suit was decreed for sum of Rs.3,00,000 on account of refund of advance payment and Rs.10,00,000 on account of damages with markup @ 10% from date of suit till realization of decretal amount along with cost of proceedings.

(b) Damages---

---Suit for---Award of damages by court---Principles.

The damages can be granted by the Court keeping in view the circumstances 'and merits of each case---While granting damages, the court has to satisfy itself that the damages awarded if not completely satisfactory does compensate the plaintiff.

(c) Damages---

---Suit for---General damages, award of---Criteria---Amount of damages assessed by Court must not appear to be punitive or exemplary---Principles.

There is no hard and fast rule for grant of general damages and there is also no yardstick to measure the damages caused to a person and then to determine the compensation---Amount assessed must not appear to be punitive in nature or exemplary.

Mehfooz Yar Khan for Plaintiff.

Nemo for Defendant.

Date of hearing: 19th September, 2007.

2008 M L D 17

[Karachi]

Before A.R. Farooq Pirzada, J

ALLAH DAD and 7 others---Applicants

Versus

THE STATE---Respondent

Criminal Revision No. 115 and M. As Nos. 1187 to 1189 of 2007, decided on 10th October, 2007.

Criminal Procedure Code (V of 1898)---

----S.561-A---Penal Code (XLV of 1860), Ss.364, 147, 148 & 149---Suspension of operation of order---Prayer had been made for suspending the operation of impugned order passed by Magistrate in F.I.R.---Counsel for applicants/accused had contended that no sufficient material on record was available to incriminate accused and that Magistrate had not applied his judicious mind to the facts and circumstances of the case---Application under S.561-A, Cr.P.C. was allowed and operation of impugned order was suspended in the interest of justice, till final decision in the matter before the court.

Sufi Abdul Qadir v. The State and others 2000 PCr.LJ 520 ref.

Noor Hassan Malik for the Applicants.

Nisar Ahmed Abro for the State.

2008 M L D 37

[Karachi]

Before Atta-ur-Rehman, J

SHAUKAT HAYAT and 4 others---Plaintiffs

Versus

KARACHI TRANSPORT CORPORATION through Chairman, Director or Secretary and 2 others---Defendants

Suit No. 1037 of 1991, decided on 14th May, 2002.

Fatal Accident Act (XIII of 1855)---

----S.1---Penal Code (XLV of 1860), S.320---Fatal accident---Death of deceased due to rash and negligent driving of bus---Suit for compensation against driver of bus and his employer---Criteria for assessing Diyat under S.320, P.P.C.---Applicability---Compensation in form of Diyat as allowed under S.320, P.P.C. would be paid by person, who actually caused Qatl-e-Khata---Person liable to pay Diyat under S.320, P.P.C. would not include employer or Insurance Company---Principles.

Nasir Maqsood for Plaintiffs.

Ch. Muhammad Iqbal, A.A.-G. for Defendants.

2008 M L D 62

[Karachi]

Before Rahmat Hussain Jaffari, J

Mst. FARIDA BANO---Plaintiff

Versus

KARACHI ELECTRIC SUPPLY CORPORATION through Managing Director---Defendant

Suit No. 800 of 1995, decided on 18th April, 2004.

(a) Fatal Accidents Act (XIII of 1855)---

----S.1---Electricity Rules, 1937, Rr. 49 (3) & 76---Recovery of damages---Doctrine of res ipsa loquitur---Applicability---Live electricity supply lines, safety against---Proof---Plaintiffs were legal heirs of the deceased who died due to electrocution by entangling with live electric wire which was hanging from electric pole and was lying on road---Plea raised by plaintiffs was that death of their predecessor-in-interest was caused due to negligence of defendants---Validity---Defendants were required to provide devices for safety purpose but they did not do so, which showed negligence on their part---Defendants failed to mention cause of falling of electric wire---Under doctrine of res ipsa loquitur, defendants were required to prove that accident did not occur on account of their negligence---Plaintiffs had proved negligence on the part of defendants and deceased died because of such negligence---Plaintiffs being the legal heirs of deceased were entitled to claim compensation and damages---Suit was decreed accordingly.

Pakistan Steel Mills Corpn Ltd. v. Abdul Habib 1993 SCMR 848 rel.

(b) Qanun-e-Shahadat (10 of 1984)--

----Arts. 132 & 133---Fact not cross-examined---Presumption---If any piece of evidence led in examination-in-chief is not denied or controverted in cross-examination then it is presumed to be accepted by other side.

Muhammad Akhtar v. Munna 2001 SCMR 1700 rel.

(c) Fatal Accidents Act (XIII of 1855)---

---S.1---Recovery of damages---Determination---It is left with Court to exercise judicial discretion in fixing amount of damages to be awarded to the beneficiaries who have sustained loss.

(d) Fatal Accidents Act (XIII of 1855)---

---S.1---Diyat---Entitlement to the legal heirs of victim---If a person is dead due to intentional, unintentional, unlawful, neglectful act, rash or negligent driving or by mistake then the legal heirs of the victim are also entitled to compensation which is known as "Diyat".

Nazir Maqsood for Plaintiff.

Muhammad Sadiq for Respondent.

Date of hearing: 12th April, 2005.

2008 M L D 125

[Karachi]

Before Abdul Rasheed Kalwar, J

AKHTAR alias GAJO and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 485 and M.As No. 2212, 2213 of 2007, decided on 2nd November, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.17(4)/17(2)---Penal Code (XLV of 1860), Ss.337-F(i) & 337-F(ii)---Bail, refusal of---Crime weapon had been recovered at the instance of accused---Incident , was established by recovery of blood-stained earth, crime empties of pistol and kalashnikov, death of one person and receiving injuries by the prosecution witness---Non-existence of any enmity between the parties had excluded the possibility of false implication of accused---Prosecution witnesses had fully implicated the accused in their statements recorded under S.164, Cr.P.C. in the presence of accused, who did not cross-examine them though such opportunity was given to them---Affidavit filed by one prosecution witness exonerating the accused could not be considered in view of the dictum laid down, by Supreme Court in Nazir Ahmed's case reported in PLD 1997 SC 347---Certificate issued by a Councillor being subject to strict proof of it contents, could not be attached legal presumption of genuineness---Substitution of real culprits with innocent persons without any motive was a rare phenomenon---Accused had been picked up in identification parade by the prosecution witnesses---Deeper appreciation of evidence was not permissible at bail stage---Complicity of accused in commission of offence was, prima facie, established on record---Bail was declined to accused in circumstances.

1999 SCMR 1377; PLD 2002 (Karachi) 402; PLD 2002 (Karachi) 125; Mushtaque Ali Kalhoro v. The State 1996 PCr.LJ 1315; 1979 SCMR 137, PLD 1972 (SC) 277; Saeed Muhammad Shah v. State 1993 SCMR 550; Falak Sher v. State 1995 SCMR 1350 and PLD 1997 (SC) 347 ref.

Abdul Fattah Malik for Applicant.

Habib-ur-Rehman Shaikh, Asst.A.-G. for Respondent

2008 M L D 143

[Karachi]

Before Abdur Rehman Faruq Pirzada, J

ABBAS and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 508 of 2007, decided on 23rd October, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.337-H(ii) & 460---Bail, refusal of---Accused allegedly committed lurking house trespass by entering in the house of complainant at night time and attempting to take away the buffalo of complainant---While the complainant raised hue and cry and made challenges, ,one of accused persons fired burst, with kalashnikov upon a person thereby murdering him---On seeing the village people coming and making challenges on the cries of complainant party and fire-arm reports, accused left the buffalo and ran away while firing in the air--Accused, whose names did not appear in the F.I.R., were arrested and thereafter put to identification test before Magistrate, in which complainant and prosecution witness identified accused to be the culprits---Statement of prosecution witness under S.164, Cr.P.C. was also recorded in presence of accused wherein he implicated accused stating that they were accused persons armed with guns who had committed the alleged offence---Postmortem report corroborated the ocular version---Prima facie sufficient material was produced by prosecutors to connect accused with alleged offence---Fact that names of accused persons were not mentioned in the F.I.R., would show that complainant party had no previous enmity or motive to falsely implicate caused in the case---Later on in identification test complainant party identified and nominated accused persons---Alleged offence was that of murder coupled with the offence that of attempt to commit dacoity---Prima facie Ss.398 & 399, P.P.C. were applicable---Bail was refused in circumstances.

2007 MLD 526; 2007 YLR 1315; 1999 PCr.LJ 890; 2001 PCr.LJ 80 and 1998 SCMR 454 rel.

Ahmed Bux Ansari for Applicants.

Nisar Ahmed Abro for the State.

2008 M L D 166

[Karachi]

Before Mushir Alam and Abdul Rasheed Kalwar, JJ

WAZIR HUSSAIN---Appellant

Versus

KARACHI TRANSPORT CORPORATION through Chairman and 2 others---Respondents

H.C.A. No.150 of 1993, decided on 17th October, 2007.

Fatal Accidents Act (XIII of 1855)---

----S.1---Fatal accident---Suit forcompensation---Son of appellant aged 11 years died in road accident caused by bus driven by one and owned by the other respondent---Respondents did not deny the factum of death of son of appellant in the accident with their bus, but denied the negligence on the part of the driver of the bus---High Court where the suit was filed, held that onus to prove negligence of the driver, always lay on the one who had filed suit for compensation---High Court, having not found appellant's evidence sufficient, held that appellant had failed to prove that accident was caused due to rash and negligent driving and that deceased was contributory to the accident---Validity---Held, driver was under an obligation to prove his diligence, but he had failed to satisfy the court on that point---Record had fully established that deceased had died due to accident with bus owned by respondent and driven by his driver but they had failed to prove that deceased was contributory to the accident---High Court appeal was accepted, impugned order was set aside and suit filed by appellant was decreed accordingly.

Federation of Pakistan v. Hafiza Malika Khatoon 1996 SCMR 406; Haji Abdul Razzaq v. Pakistan Ministry of Defence 2005 MLD 114 and Haji Abdul Razzak v. Pakistan Ministry of Defence 2005 SCMR 587 rel.

Nasir Maqsood for Appellant.

Abdul Jabbar Lakho, A.A.-G. for Respondents.

Date of hearing: 20th September, 2007.

2008 M L D 177

[Karachi]

Before Rehmat Hussain Jafferi, J

MUHAMMAD HASHIM---Petitioner

Versus

PRESIDING OFFICER and 6 others---Respondents

C.P. No. D-894 of 2007, decided on 25th September, 2007.

Constitution of Pakistan (1973)---

----Art.199---Criminal Procedure Code (V of 1898), S.249-A---Constitutional petition---Quashing of proceedings---Counsel for petitioner had stated that he had moved application under S.249-A, Cr.P.C. but the trial Court had not decided the same; and the said court had no jurisdiction to try the offence---Validity---Petitioner. had already invoked the jurisdiction of the Trial Court for his acquittal---Point of jurisdiction and application under S.249-A, Cr.P.C., were yet to be decided by the trial Court---Adequate remedy, in circumstances, was available with the petitioner which had already been availed---Trial Court was directed by High Court to decide the point of jurisdiction and application under S.249-A, Cr.P.C. within a period of one month.

Syed Muhammad Kazim for Petitioner.

Ainuddin Khan, ADPGA.

Muhammad Saleem Samo for Respondents No.4.

2008 M L D 178

[Karachi]

Before Mrs. Qaiser Iqbal, J

SHAHBAZ ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.706 of 2007, decided on 2nd October, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.324 & 392/34---Bail, grant of---Case of hardship---Edifice of the case was built on the statement of the complainant and the Mashir of the recovery---Accused was confined in jail for the last 18 months, the charge was framed, but directions for recording the evidence had not been complied with---Such was a case of hardship when material witnesses had not been examined nor any likelihood was of completion of trial in near future---Accused was admitted to bail, in circumstances.

Ali Ahmed Junejo for Applicant.

Miss. Afsheen Aman, State Counsel.

2008 M L D 180

[Karachi]

Before Mushir Alam and Arshad Siraj, JJ

Mrs. BILQEES---Petitioner

Versus

THE CHAIRMAN COMMERCIAL COURT SINDH AT KARACHI and another---Respondents

Constitutional Petition No. D-1858, decided on 2nd October, 2007.

Constitution of Pakistan (1973)---

----Art.199---Criminal Procedure Code (V of 1898), S.561-A---Constitutional petition---Bail, grant of---Petitioner had sought bail on the ground that she had been released on bail on personal bond in the sum of Rs.1,00,000---Record showed that petitioner had already undergone more than the prescribed punishment of three years---No justification in circumstances existed for imposing any further condition except personal bond.

Syed Muhammad Kazim for Petitioner.

Abbas Ali, Addl. A.-G. for Respondent No.1.

Syed Tariq Ali for Respondents.

2008 M L D 181

[Karachi]

Before Amir Hani Muslim, J

ABDUL LATEEF---Applicant

Versus

THE STATE and another---Respondents

Criminal Revision Application No.84 and Miscellaneous Applications Nos.1080 and 1081 of 2007, decided on 11th October, 2007.

Criminal Procedure Code (V of 1898)---

----S.516-A---Restoration of possession of vehicle---Restoration of possession of the vehicle in question to applicant was declined by the court on the ground that original documents in possession of applicant were in the name of other person; and that applicant being not owner of vehicle in question, was not entitled to the restoration of possession---Validity---Scheme of S.516-A, Cr.P.C. did not warrant restoration of possession of vehicle to the owner---Court had to examine as to who was the last in possession of the vehicle---Applicant had stated, that vehicle in dispute was purchased by him on instalments---Original registration book was also with the applicant---Such were sufficient grounds for restoration of possession of vehicle to applicant---Court would allow restoration of possession of the vehicle to the applicant on his executing Superdari.

Shafi Muhammad Memon for Applicant.

G.A. Shahani A. G. and Nisar Ahmed Abro for the State.

2008 M L D 182

[Karachi]

Before Khawaja Naveed Ahmed, J

SHAHIDA BEGUM and others---Applicants

Versus

MUHAMMAD RAMZAN and others---Respondents

Criminal Miscellaneous Application No.S-18 of 2007, decided on 23rd November, 2007.

Criminal Procedure Code (V of 1898)---

---S.561-A---Penal Code (XLV of 1860), Ss.406, 420 & 506(2)---Quashing of proceedings---Contents of the direct complaint did not make out any criminal offence against accused---Case was a false one which had been filed only in order to harass ex-wife---Civil Judge/Judicial Magistrate had misused his power and had not applied his judicial mind while registering the case as he had not even given a thought for a second that he was issuing bailable warrants against a woman who was living at place "K" to attend the court at place---Judicial Magistrate while registering that case had exceeded his power at "N"---No case under Ss.420 & 506(2), P.P.C. was made out---Such was a clear instance of harassment of an ex-wife---Proceedings were quashed, in circumstances.

Rasheed A. Qureshi, Asstt. A.-G. Sindh for the State.

2008 M L D 185

[Karachi]

Before Mrs. Qaiser Iqbal, J

MUHAMMAD ARIF BAIG---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 688 of 2007, decided on 2nd October, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Explosive Substances Act (VI of 1908), Ss.4 & 5---Bail, grant of---Hand-grenade secured from the possession of accused was examined by Bomb Disposal Inspector, but his report was not available on record to suggest whether same was in serviceable condition or not---Accused was behind the bars for the last nineteen months but even charge had not been framed by the trial Court nor there was any likelihood of conclusion of trial in near future---Accused was admitted to bail, in circumstances.

Muhammad Akbar Awan for Applicant.

Miss. Afsheen Aman, State Counsel.

2008 M L D 187

[Karachi]

Before Abdul Rasheed Kalwar, J

ROSHAN---Appellant

Versus

MUHAMMAD SALEH and 2 others---Respondents

Criminal Acquittal Appeal No. 20 and Miscellaneous Application No.621 of 2007, decided on 2nd November, 2007.

(a) Criminal Procedure Code (V of 1898)---

----S.417(2-A)---Penal Code (XLV of 1860), Ss.324/452/337-F(iii)/34---Limitation Act (IX of 1908), Ss. 5 & 29(2)(a)(b)---Appeal against acquittal---Appeal was barred by time by twenty days---Delay in filing the appeal had not been properly explained by the appellant---Mere heinousness of the offence was no ground for condonation of delay--- Appellant should have been vigilant in filing the appeal by keeping in mind the gravity of the offence committed by the accused/respondents---Presence of appellant before the Court for filing of acquittal appeal was not necessary as the same could have been filed by his counsel---Special limitation of 30 days prescribed by S. 417(2-A), Cr.P.C. providing right of appeal against acquittal of accused to aggrieved person, was subject to the application of S.5 of the Limitation Act, 1908, due to the bar contained in S.29(2)(a)(b) of Limitation Act, 1908---Condonation of delay under S.5 of Limitation Act, 1908 therefore, was not available for filing appeal against acquittal under S.417(2-A), Cr.P.C.---Besides conduct of appellant also showed his negligence and carelessness in filing the acquittal appeal and his explanations were neither supported by his own documents, nor the same appeared to be reasonable---Application filed by appellant under S.5 of Limitation Act for condonation of delay was dismissed in circumstances, in consequence whereof his appeal was also dismissed in limine being barred by time.

Rasab and another v. The State and another 1983 SCMR 1018; Muhammad Shareef v. The State 1978 PCr.LJ 546; Muhammad Sharif v. Jamshed Ali and another PLD 1978 Lah. 471 and Din Muhammad v. Fateh Ali and others Criminal Acquittal Appeal No. 18 of 2005 distinguished.

(b) Criminal Procedure Code (V of 1898)---

----S.417(2-A)---Limitation Act (IX of 1908), S.5---Time-barred appeal against acquittal---Section 5 of Limitation Act, 1908 not applicable for condonation of delay---Condonation of delay under S.5 of the Limitation Act, 1908, is not available for filing appeal against acquittal under S.417(2A), Cr.P.C.

Muhammad Hamzo Buriro for Appellant.

Habibur Rehman Shaikh A.A.-G. for Respondent.

2008 M L D 191

[Karachi]

Before Khawaja Naveed Ahmed, J

Mst. SHAHZADI---Petitioner

Versus

DISTRICT POLICE OFFICER, (DPO) and 5 others---Respondents

Constitutional Petition No. D-402 of 2007, decided on 22nd November, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.11 & 16---Constitutional petition---Bail, grant of--Petitioner/alleged victim girl had stated that she was sui juris aged about 18 years and had performed her Nikah with accused after swearing an affidavit of free-will before Civil Judge and Judicial Magistrate---Alleged victim girl, in circumstances, herself was not supporting the allegation of her kidnapping narrated in F.I.R.---Prosecution had little chance of success in the, case---Matter pertained to Division Bench, Single Judge of High Court could only grant some interim relief keeping in view the facts of the case---Accused was released on bail and petition was directed to be placed for hearing before Division Bench of the High Court.

Petitioner in person.

Rasheed Ahmed Qureshi Asstt. A.-G. Sindh for the State.

2008 M L D 201

[Karachi]

Before Mushir Alam, J

ABU BAKER and others---Petitioners

Versus

Messrs T.J. IBRAHIM and others---Respondents

J.M. No. 1 of 1989 and C.M.A. No.6 1652 of 2003, decided on 20th April, 2006.

Civil Procedure Code (V of 1908)---

----S.12(2)---Application against fraud and misrepresentation in transaction---Applicant claimed that property in dispute was purchased by him from its original allottee; that conveyance deed respecting the transaction was duly executed and registered; that property in dispute was never owned or transferred in favour of the attorney of respondent; that on the strength of statement of said attorney a declaration was given by the court vide impugned order to the effect that property in dispute was the assets of respondent-company which had given power of attorney to the attorney and that power of attorney in favour of the attorney was revoked through registered revocation---Allegation of applicant was that such declaration was obtained by the attorney by playing fraud upon the court and by misrepresentation---Validity---Impugned order to the extent of declaration that properties were assets of the respondent-company under liquidation on bald statement of attorney, could not be sustained and was liable to be recalled---Attorney had been established to have mis-represented before the court that he was owner of subject property on the strength of power of attorney---Attorney had suppressed the fact that his power of attorney was revoked much before his statement was recorded in the court---Application under S.12(2), C.P.C. was allowed and property in dispute was excluded from the assets of respondent-company and order to the extent of declaration against property in dispute was set aside.

Shafi Muhammadi for Petitioner.

Qadir Bux Umrani Official Assignee.

Mirza Sarfaraz Ahmed.

Fida Muhammad.

Saiful Islam.

2008 M L D 229

[Karachi]

Before Mrs. Qaiser Iqbal, J

RIAZ KHAN---Applicant

Versus

THE STATE---Respondent

Bail Application No. 699 of 2007, decided on 20th September, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302---Bail, grant of---Allegations against accused were of general nature---Injuries caused to deceased which were fatal in nature, were directly attributed to co-accused and no injury caused to the deceased was attributed to the accused---Accused who was confined in jail for the last four years without trial was entitled to concession of bail---Accused was admitted to bail, in circumstances.

Yaroo v. The State 2004 SCMR 864; Shaboo alias Ali Khan v. The State 2006 MLD 178 and Ghulam Rasool v. The State 2006 MLD 630 rel.

Hameedullah Khan for Applicant.

Abdul Majeed, A.A.-G. for Respondent.

2008 M L D 238

[Karachi]

Before Gulzar Ahmed, J

Mst. ZEENAT TANVIR and 2 others---Plaintiffs

Versus

P & T CO-OPERATIVE HOUSING SOCIETY LTD through Administrator/Chairman

Secretary and another---Defendants

Civil Suit No.333 of 2006, decided on 2nd November, 2006.

(a) Civil Procedure Code (V of 1908)---

----O.XXXIX, Rr.1 & 2---Interim relief---Application for---Prima facie it appeared that applicants were owners of three plots in question---Applicants, in circumstances were entitled to the interim relief as prayed for by them---Interim order passed on application of plaintiff was confirmed, in circumstances.

(b) Civil Procedure Code (V of 1908)---

----O.VII, R.11 & S.11---Specific Relief Act (I of 1877), Ss.8, 42, 54 & 55---Constitution of Pakistan (1973), Art.199---Suit for declaration, possession, mandatory/perpetual injunction and damages---Res judicata, principle of---Applicability---Application for rejection of plaint---Maintainability---Only ground on which application for rejection of plaint was passed was that plaintiff had already filed constitutional petition, which having been disposed of, suit was barred under the principle of res judicata as contained under S.11, C.P.C.---Validity---No dispute existed in respect of the ownership of the plots in question nor any declaration as to the ownership was sought by the plaintiff in said constitutional petition---Even the parties in the said constitutional petition were different from the present suit---City District Government which was defendant in the suit, was not party in the said constitutional petition---Grounds provided for invoking the principle of res judicata, were not available to the defendant as both the proceedings were altogether of a different nature seeking different reliefs and between different parties---Application for rejection of plaint was dismissed in circumstances.

Mirza Sarfaraz Ahmed for Plaintiffs.

Ch. Khalid Rahim for Defendant No. 1.

2008 M L D 257

[Karachi]

Before Rahmat Hussain Jafferi and Muhammad Afzal Soomro, JJ

ABDUL QADIR TAWAKKAL---Petitioner

Versus

CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD---Respondent

Constitutional Petition No. D-2403 of 2006, decided on 9th August, 2007.

Constitution of Pakistan (1973)---

----Art.199---Constitutional petitioner---Bail, grant of---Complainant in his F.I.R. had alleged that Company had sold the hypotheticated goods in respect of the loan advanced to them---Counsel for petitioner had stated that petitioner being neither Director nor Chairman nor Executive Officer of said Company was not involved in the case and that petitioner was not responsible for actions conducted by his sons and other Directors of the Company---Initially when the matter was under investigation, petitioner was granted bail by the Special Court (Offences in Banks) at `L' and said bail granting order had not been cancelled; however, after submission of challan, in the present proceedings petitioner was shown in custody as he was involved in other cases---Petitioner, admittedly was neither Chairman nor Director nor Executive of the Company---Petitioner, in circumstances was entitled to the concession of bail.

Shahab Sarik for Petitioner.

Shafaat Nabi Khan Sherwani D.P.G.A. for N.A.B.

2008 M L D 294

[Karachi]

Before Mrs. Qaiser Jabal, J

MUHAMMAD ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 448 and M.A. No. 1688 of 2007, decided on 13th August, 2007.

Criminal Procedure Code (V of 1898)---

---S.497---Penal Code (XLV of 1860), Ss.393, 397, 452 & 109/34---Bail, grant of---Accused was not put to identification parade during the investigation through injured eye-witnesses who had sustained injuries due to firing opened by the culprits---Accused was behind the bars for last one year and the trial had not yet commenced---Ingredients of commission of robbery or decoity were not spelled out from the F.I.R.---Accused appeared to be a first offender with no past credentials or antecedents of a dacoit---Prima facie case having been made out for grant of bail in favour of accused, he was admitted to bail.

Mirza Sarfaraz Ahmed, for Applicant.

Agha Zafir for the State.

2008 M L D 314

[Karachi]

Before Arshad Noor Khan and Syed Pir Ali Shah, JJ

ABDUL MAJEED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. D-218 of 2006, decided on 18th December, 2007.

(a) Control of Narcotic Substances Act (XXV of 1997)---

----S.9(c)---Appreciation of evidence---Contention of counsel for accused that Police Inspector, who was complainant of the case, could not act as Investigating Officer, was not reasonable and plausible as no law existed by which any restriction had been imposed on the Police Officer not to act as complainant and Investigating Officer at the same time---No embargo was placed on any Police Officer in whose presence an offence had been committed to act as Investigating Officer---Counsel for accused had further contended that as only samples from each of the packets were sent to the Chemical Examiner for analysis instead of the whole quantity of charas, the remaining quantity of charas not sent to Chemical Examiner, could not be treated as charas recovered from accused, was repelled---Whole quantity of narcotic substances could not be sent to the Chemical Examiner for analysis and samples sent to him were sufficient---If the report of the Chemical Examiner was positive, the whole quantity of narcotic substance secured from accused could be treated as contraband narcotic---Persons of locality though were present at the time of recovery, but no one was ready to become the witness---Accused had not alleged any enmity between him and complainant so as to implicate accused falsely in the case---Prosecution witnesses had fully supported the arrest of accused and recovery of narcotic from him---Said prosecution witnesses had been cross-examined at great length, but the arrest of accused and recovery of huge quantity of charas from accused had not been disproved---Presence of accused at the time of his arrest had not been disputed, nor the recovery of huge quantity of charas had been disproved through any independent evidence led by accused---Report of Chemical Examiner also affirmed that substance sent to him for analysis was charas---Defence evidence brought on record by accused, did not inspire confidence---Prosecution, in circumstances had succeeded in bringing home guilt to accused and no illegality or irregularly on the face of record was available so as to interfere with the judgment passed by the Trial Court---Appeal against judgment of the Trial Court, was dismissed.

The State v. Bashir PLD 1997 SC 408 ref.

(b) Criminal Procedure Code (V of 1898)---

----S.103---Search proceedings---Section 103, Cr.P.C. had two-fold aspects---Section 103, Cr.P.C. provided that presence of the respectable persons of the locality was mandatory requirement---If search of the property was conducted by the police and if the respectable persons of the locality had not been picked up for the purpose of search of the property, there could be a material dent in the case of prosecution---In the case of arrest of accused and the recovery from the public place, the availability of the persons of the locality was not mandatory requirement of S.103, Cr.P.C. and even the police officials, who had no mala fide against accused and bore no enmity, could act as mashirs and their evidence could be treated as good as evidence of any other independent witness could be subject to their cross-examination.

Nandan A. Kella for Appellant.

Muhammad Iqbal Kalhoro Special Prosecutor ANF for Respondent.

Date of hearing: 18th December, 2007.

JUDGNIENT

ARSHAD NOOR KHAN, J.---This appeal has been directed against the judgment, dated 29-9-2006, passed by the learned Special Judge Narcotic, Jamshoro at Kotri, whereby the appellant has been convicted under section-9(c) of Control of Narcotic Substances Act, 1997 (hereinafter referred to as "Act of 1997") to suffer 10 years' rigorous imprisonment and fine of Rs.5,00,000 and in default in payment of fine he shall suffer further rigorous imprisonment for two years.

1. The facts giving rise to the present appeal in brief are that on 15-10-2004, the complainant Mir Badshah Inspector ANF received spy information that a person having a sufficient quantity of Charas is available near Railway Crossing Kotri at Khuda Ki Basti Road. On such information the complainant along with his subordinate staff, after recording entry in daily Roznamcha proceeded to the pointed place near Madresah Arabia Qassimul Uloom. Bhitai Colony; Khuda Ki Basti and found a person available there having a carton duly wrapped with gunny rope, who on the pointation of spy was apprehended and the complainant requested to the persons collected there at that time to act as mashir, but no one inclined to act as mashir, as such the complainant in presence of Muhammad Fareed ASIP and PC Rahim Bux arrested the said persons, who disclosed his name as Abdul Majeed son of Muhammad Khan resident of Khuda Ki Basti, Kotri District Dadu and secured such carton from him and on search of the said carton, secured five packets whereon "presidentte kahavi" was written, and every packet contained Charas in the shape of Cake being one kilogram each. The complainant separated 10 grams of Charas from each of the packet. for Chemical analysis and sealed the said samples separately and also sealed the remaining packets of Charas separately and arrested the accused and conducted his personal search and secured Rs.160 from front pocket of his shirt, prepared such mashirnama and returned to the Police Station along with the accused and the case property and lodged the F.I.R. He also conducted the. investigation and after usual investigation challan was sent in Court against the accused to stand trial.

2. The learned trial Court after compliance of section 265(c), Cr.P.C., framed the charge against the accused on 27-3-2006 under section 9(c) of Act, 1997 to which he pleaded not guilty and claimed trial. After framing the charge the prosecution examined P.W. Mir Badshah Inspector ANF vide Exh.6, who produced Roznamcha entry vide Exh.7, mashirnama of arrest of accused and recovery as Exh.B, copy of Chemical Examiner report as Exh.10, P.W.2 ASIP Muhammad Fareed was examined vide Exh.11. The prosecution closed its side vide statement Exh.12.

3. The statement of the accused was recorded under section 342(1), Cr.P.C. wherein he denied to have committed the present offence. He was also confronted by the learned trial Court with the necessary evidence available on record against him. He simply denied the allegations of the prosecution. He claimed to be innocent. He examined himself on oath under section 340(2), Cr.P.C. vide Exh.14 and also examined D.W. Muhammad Ismail vide Exh.15 in his defence and closed his side vide statement Exh.16.

4. The learned trial Court after hearing of learned counsel for the parties convicted and sentenced the appellant as stated above. The appellant being highly aggrieved and dissatisfied with his conviction has preferred this appeal.

5. We have heard Mr. Nandan A. Kellah, learned counsel for the appellant and Mr. Muhammad Iqbal Kalhoro, Special Prosecutor ANF for the respondent.

6. Learned counsel for the Appellant vehemently contended that Mir Badshah Inspector acted as complainant and Investigating Officer at the same time, which is illegal as no one could act as a Judge of his own cause and in the present case he being complainant could not investigate the matter, as such grave illegality has been committed by the prosecution, which could not be cured at this stage. He further contended that the whole quantity of Charas has not been sent to the Chemical Examiner and only the samples have been sent to the Chemical Examiner, which again is an illegality, as there is no report about the remaining quantity of the alleged Charas, which has not been sent to the Chemical Examiner, as such remaining quantity could not be treated as Charas. He further contended that no independent mashir of the locality has been picked up by the prosecution at the time of arrest of the accused and recovery of Charas, which is grave illegality and violation of section 103, Cr.P.C. He further contended that there is enmity in between the accused and one relative of the complainant as such the complainant has falsely implicated the accused in the present case. According to him there are major discrepancies in the evidence of the prosecution witnesses which discrepancies adversely reflects on the case of prosecution, as such the case of the prosecution is not free from doubt and the learned 'trial Court was not justified to convict him and the judgment passed by the learned trial Court may be set aside and the accused may be acquitted from the charge. In support of his contention he has relied upon the case of Bashir v. The State reported in 2003 MLD 259.

7. Mr. Muhammad Iqbal Kalhoro, Special Prosecutor ANF vehemently controverted the contentions advanced by the learned counsel for the appellant and has contended that the recovery of huge quantity of Charas from the appellant has been established through the evidence available on record and no material dent has been inflicted in the testimony of the prosecution witnesses in their cross-examination, as the minor contradictions in the statements of the prosecution witnesses are of no consequences for the reason that their evidence was recorded after 22 months of the incident and some minor contradictions are humanly possible, according to him the evidence available on record is confidence inspiring and no mala fide has been alleged against the prosecution witnesses, nor the enmity as alleged has been substantiated through independent evidence by the appellant, as such the judgment passed by the learned trial Court requires no interference.

8. We have considered the arguments advanced by the learned counsel for the parties and have gone through the entire evidence available on record as well as the case-law.

9. It has been vehemently contended by learned counsel for the appellant that Mir Badshah Inspector who is the complainant of the present case could not act as Investigating Officer at the same time as no one could be Judge of his own cause. The contention seems not be reasonable and plausible as there is no law' by which any restriction has been imposed on the police officer not to act as complainant and Investigating Officer at the same time. In fact there is no embargo on any police officer in whose presence an offence has been committed, to act as Investigating Officer. The said point also came for consideration before Honourable Supreme Court in the case of The State v. Bashir reported in PLD 1997 Supreme Court 408, wherein the Honourable Supreme Court was pleased to observed that no legal prohibition for a Police Officer to be a complainant if he is a witness to the commission of an offence and also to be an Investigating Officer so long as it does not in any case, prejudice the accused person. The dictum laid down by the Honourable Supreme Court in the case State v. Bashir, Supra, is usefully quoted hereinbelow for the sake of convenience:--

"I agree with Ajmal Mian, J. that we are unable to subscribe the said broad legal proposition and that there is no legal prohibition for a police officer to be a complainant if he is a witness to the commission of an offence and also to be an Investigating Officer so long as it does not, in any way, prejudice the accused person."

1. The dictum laid down by the Honourable Supreme Court is the complete answer to the arguments advanced by the appellant's counsel.

2. It has further been argued by the learned counsel for the appellant that only samples from each of the packet were sent to the Chemical Examiner for analysis instead of the whole quantity of the Charas, as such the quantity of the Charas, which was not sent to the Chemical Examiner, could not be treated as charas recovered from the appellant, which is material dent in the prosecution case. The contention seems not to be attractive for the reason that there are hosts of the authorities on this aspect of the matter by the superior Courts that the whole quantity of the narcotic substance could not be sent to the Chemical Examiner for analysis and the sample sent to the Chemical Examiner are sufficient and, in cases if the report of the Chemical Examiner is positive the whole quantity of the narcotic substance may be treated as the contraband or the narcotic secured from the accused.

3. The contention of the learned counsel for the appellant that no independent mashirs were picked up at the alleged time of the arrest of accused and recovery of Charas, though the witnesses of the locality were available at the time of arrest of accused and recovery is also devoid of any force. The contention advanced by the learned counsel for the appellant is self-explanatory, which shows the arrest of the accused and recovery in presence of the persons of locality, but has objected the arrest of accused and recovery on the ground that the persons of that locality have not been picked up as mashirs. The mashirnama of arrest of accused and recovery of charas (Exh.B), which was prepared at the spot, speaks that at the time of arrest of the accused the persons who were collected there were asked to act as mashir but they did not incline to act as mashirs. In F.I.R. also it is stated that the persons of the locality refused to act as mashirs in spite of request by complainant. Same is the assertion made by the prosecution witnesses in their evidence before learned trial Court, which shows that the complainant tried to pick up the mashirs from the locality to witness the arrest and recovery but because of the refusal of the persons of the locality he requested to his subordinates to act as mashirs. Section 103, Cr.P.C. has two fold aspects. According to section 103, Cr.P.C. the presence of the respectable persons of the locality is mandatory requirement, in case, if the search of the property is conducted by the police and, in case, if the respectable persons of the locality have not been picked up for the purpose of search of the property, there may be a material dent in the case of prosecution. In the case of arrest of the accused and the recovery from the public place, the availability of the persons of the locality is not the mandatory requirement of section 103, Cr.P.C. and even the police officials who have no mala fide against the accused and bore no enmity, may act as mashir and their evidence may be treated as good as evidence of any other independent witness could be subject to their cross-examination. In the present case the complainant who arrested the accused and recovered five kilogram of Charas from him has substantiated the arrest of accused and recovery of the huge quantity of charas from him, in his evidence before the Trial Court and in his cross-examination it has not been suggested to him that he possess any enmity against the accused to implicate him in the false case. The appellant has also not alleged any enmity in between him and the accused so as to say that the complainant has any enmity with him to implicate him falsely in the present cease. Simultaneously P.W.2 Muhammad Fareed ASIP has fully supported the arrest of accused and recovery and in his cross-examination also the arrest of accused and recovery has not been disproved in any manner, nor any mala fide or enmity has been pleaded against him. Both these prosecution witnesses have been cross-examined at great length but the arrest of accused and recovery of huge quantity of Charas has not been disproved in their lengthy cross-examination conducted by the defence counsel. The learned counsel for the appellant in order to substantiate his plea that the complainant bore grudge with the appellant has pointed out the suggestion in cross-examination of the complainant that the accused was arrested from his house in presence of his brothers Abdul Hameed, Abdul Rasheed, Abdul Fatah, Noor Ahmed and others to which he replied in negative. The said suggestion in cross-examination shows that the arrest of the accused is not disputed but allegedly he was arrested in presence of these witnesses, but these witnesses have not been examined by him in his defence in order to prove that he was arrested from his house in presence of these witnesses. Non-examination of these witnesses therefore adversely reflects on the plea taken by the learned counsel for the appellant that he was arrested from his house. The scope of section 103, Cr.P.C. has also been considered by the Honourable Supreme Court in the case of State v. Bashir, Supra, wherein the Honourable Supreme Court was also pleased to observe that the evidence of the police official could not be discarded provided they had tested the assessment of truthfulness. We have no justification to disbelieve the evidence of prosecution witnesses about arrest of accused and recovery of Charas from him. The learned trial Court has also considered the whole evidence on this aspect of the matter and has rightly analyse the evidence while convicting the accused.

4. The presence of the accused at the time of his arrest has not been disputed, nor the recovery of huge quantity of charas has been disproved through any independent evidence led by the appellant. The report of Chemical Examiner also affirms that substance which was sent to him for chemical analysis was charas, as such the substance of narcotic sent to him for analysis has been proved to be charas, which report of the Chemical Examiner has also not been controverted by the defence side.

5. The learned counsel for the appellant has vehemently contended that in cross-examination the complainant has stated that each packet of charas contained four slabs, whereas in F.I.R. and mashirnama of arrest of accused and recovery the charas in the shape of cake has been alleged, which is material dent in the case of prosecution, but in our humble opinion the said contradiction is not of much significance so as to brushed aside the whole quantity of the charas secured from the accused. Admittedly the prosecution witnesses were examined after lapse of about 22 months and with such span of period certain minor or trivial contradiction in their testimony are humanly possible, which could not be reflected on the whole testimony regarding arrest of the accused and recovery which otherwise has been proved satisfactorily.

2008 M L D 422

[Karachi]

Before Muhammad Moosa K. Leghari, J

MUHAMMAD SALEEM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 574 of 2007, decided on 9th August,. 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Protection of Women (Criminal Law Amendment) Act (VI of 2006), Ss.376 & 496-A---Bail, grant of---Further inquiry---Maximum punishment provided for the offence of rape under S.376 P.P.C. was death or imprisonment for 25 years, whereas maximum punishment provided for the offence under S.496 P.P.C. was seven years---Hard evidence, in circumstances would be required to attract the applicability of the ingredients constituting an offence of rape as admittedly the alleged victim lady left the house on her own and even herself went to the shop of accused, as claimed in the F.I.R. itself---Such fact was further supported by the fact that she took N.I.C. of her father with her, though she left her house on the pretext of taking treatment, which did not necessitate taking along N.I.C. of her father, nor she was under the age of sixteen years as she was 33 years old---Relations of the lady with her husband were strained---Whether she contracted marriage with accused after being divorced and/or the divorce deed was a fabricated document, required further inquiry---Accused was granted bail, in circumstances.

Khawaja Naveed Ahmed for Applicant.

Mahmood A. Qureshi for the Complainant.

Fazlur Rahman Awan for the State.

2008 M L D 430

[Karachi]

Before Arshad Noor Khan, J

MUHAMMAD AYOOB---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 5 of 2007, decided on 28th January, 2008.

(a) Qanun-e-Shahadat (10 of 1984)---

----Art. 39---Criminal Procedure Code (V of 1898), S.164---Confession of accused before Investigating Officer during investigation---Validity---If such confession was made by accused, then it was incumbent upon Investigating Officer to get his confessional statement recorded before competent Magistrate otherwise such confession was, not admissible in evidence.

(b) Criminal trial---

----Abscondence of accused alone could not be used as sufficient evidence to hold him guilty in commission of offence---Principles.

(c) Criminal trial---

---Benefit of doubt---Effect---Duty of prosecution would be to establish its case against accused by leading cogent, convincing and plausible evidence free from all hypothesis---Conviction of accused could not be based on surmises and conjectures---When case against accused was highly doubtful, then he would be entitled to benefit of doubt 8 a matter of right and not as a matter of grace.

Nazir Hussain Sajan Allana for Appellant.

Muhammad Bux Awan for the State.

Date of hearing: 28th January, 2008.

2008 M L D 442

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD SHAHID CHIRAGO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 980 of 2007, decided on 29th November, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 21---Bail, grant of---Provisions of S.21 of Control of Narcotic Substances Act, 1997 had not been followed in the case as the F.I.R. was lodged by Assistant Sub-Inspector whereas the mandatory requirement of law was that an officer not below the rank of Sub-Inspector of Police or equivalent was only authorized by said section to detain and search any person--Complainant had taken out sample only 10 grams each out of two packets of charas for chemical analysis and same were sent .after the delay of 11 days, without giving any satisfactory explanation in that regard---Alleged recovery of charas was effected from the car and not from exclusive possession of accused and car in question did not belong to the accused---Accused, who had made out a case for grant of bail, was admitted to bail---Contention of accused regarding false implication due to previous enmity of accused with complainant, however was repelled.

Mumtaz Ali v. The State 2001 YLR 1847; Imdad Ali v. The State 2001 YLR 1848; Haji Abdul Manan v. The State 2005 PCr.LJ 1080; Gul Din v. The State PLD 2005 Pesh. 162 and Gharibullah v. The State 2002 PCr.LJ 677 rel.

Ghulam Rasool Mangi for Applicant.

Haider Shaik for the State.

2008 M L D 449

[Karachi]

Before Azizullah M. Memon, J

SHABBIR-UL-HASSAN---Applicant

Versus

Syed ZAHID HUSSAIN and another---Respondents

Criminal Miscellaneous Application No. 42 and M.A. No.664 of 2007, decided on 5th

April, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Cancellation of bail---Principles---Once an accused was admitted to bail, then very strong circumstances were needed for the purpose of cancellation of such order of grant of bail; and that same could not be directed on the basis of evidence which was yet to be properly appraised by the Trial Court itself at the conclusion of the trial---No reason having been shown for directing to cancel bail granted to accused, application for the cancellation of bail was dismissed.

Mehmood Hussain for Applicant.

Afsheen Aman for the State.

2008 M L D 452

[Karachi]

Before Munib Ahmad Khan, J

MUHAMMAD ZAHID HALARI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.383 and 419 of 2007, decided on 18th June, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---West Pakistan Arms Ordinance (XX of 1965), S.13(d)-Bail, grant of---Further inquiry---Accused was a student and minor at the time of incident--,Complainant had filed affidavit exonerating the accused---Delay of three days in lodging F.I.R. had not been explained---Memo. of arrest showed that accused had been arrested after being identified in the Police Station---Case of accused needing further inquiry, he was granted bail.

PLD 1999 Pesh. 39; 1992 PCr.LJ 357; 1987 PCr.LJ 2423; 1997 MLD 2101; 1998 PCr.LJ 1236; 1998 PCr.LJ.1693; 1972 PCr.LJ 310; 1987 MLD 1708 and 2004 PCr.LJ 458 rel.

Khawaja Naveed Ahmed for Applicant (in Criminal Bail No.383 of 2007).

Jawaid Haider Kazmi for Applicant (in Criminal Bail No. 419 of 2007).

Abdul Majeed for the State.

2008 M L D 456

[Karachi]

Before Mrs. Yasmeen Abbasey, J

MUHAMMAD ABID---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 117 of 2007, decided on 13th November, 2007.

Penal Code (XLV of 1860)---

----Ss.393 & 398/34---Appreciation of evidence---Crime weapon allegedly recovered from possession of accused, was neither sealed at the spot nor was produced and got identified through prosecution witnesses---Recovery of pistol and live bullets could be an important piece of evidence, but still non-production of any case property i.e. car which wa§ never produced in the court for its identification through prosecution witness---Pistol and bullets were not shown in challan as case property---Conviction of accused was an arbitrary decision of the Trial Court in absence of both the properties---Prosecution in a case under S.398 P.P.C., which related to the robbery, had to prove that while committing offence, offender caused or attempted to cause death or hurt to any person or put him in the fear of instant death or hurt---Weapon used in commission of offence, was not identified through one of the prosecution witnesses, but non-sealing of said weapon at the very place of recovery made it suspicions and such recovery could not be accepted with any degree of safety---Case of prosecution in view of the evidence produced, appeared to be highly doubtful---If there were circumstances, which created reasonable doubt in a prudent mind about the guilt of accused, then accused would be entitled to the benefit of much doubt not as a matter of grace and concession, but as a matter of right---Prosecution had not explained any of the discrepancies and contradictions appearing in the statement of prosecution witnesses from the date of registration of case till its final disposal---Merely implicating accused by proving his presence at the place of incident through complainant and two police personnel with no independent witness, was not reliable piece of evidence---No identification parade was held after the arrest of absconding accused---Prosecution, in circumstances, had not been able to prove the guilt against accused---Accused in circumstances was acquitted of the charges.

Muhammad Khan and another v. The State 1999 SCMR 1220 and Yar Muhammad and 3 others v. The State 1992 SCMR 96 ref.

Mahmood A. Qureshi for Appellant.

Sardaruddin Qureshi for Respondent.

Date of hearing: 30th October, 2007.

2008 M L D 472

[Karachi]

Before Mrs. Qaiser Iqbal, J

Moulana ABDUL SHAKOOR KHAIRPURI and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.469 of 2007, decided on 7th August, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.420, 468, 471 & 109---Foreigners Act (XXXI of 1946), Ss.3(2), (a), (b), 5 & 13---Bail, grant of---Further inquiry---Deputy Advocate-General had conceded to the grant of bail to accused, however, it was contended that the question of forgery and preparation of the documents would be considered after evidence was recorded by the Trial Court---Was yet to be sorted out after recording of the evidence as to who was responsible for verification of CNIC and had prepared forged documents---Case against accused fell within the purview of further inquiry as contemplated by subsection (2) of S.497 Cr.P.C.---Doctrine of consistency was also involved as bail had been granted in similar cases---Accused were admitted to bail, in circumstances.

Mehmood A. Qureshi for Applicant.

Mehmood A. Rizvi DAG.

2008 M L D 485

[Karachi]

Before Amir Hani Muslim, J

IBRAHIM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 5842 of 2006, decided on 15th June, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.11 & 16---Bail, grant of---Further inquiry---Accused had claimed that he had married the alleged abductee and had relied upon Nikahnama and affidavit of alleged abductee, whereas said Nikahnama had been disputed by her Family Court had taken cognizance of the suits filed by the parties in which one party disputed the validity of Nikahnama, whereas the other party was relying upon the same---Unless the Family Court gave finding, the Trial Court, in exercise of criminal jurisdiction, could not decide the guilt or otherwise of the accused---Court, under the criminal law, had no authority to give any finding on the validity of Nikah, which was the material issue in the case---Family Court, under the law, was the competent forum to give finding on such issues---Allegations contained in the F.I.R. had not been incorporated in the pleadings, either by alleged abductee or by her father when family suit was filed by her or when written statement was filed---No explanation was given as to why F.I.R. was not lodged promptly after the custody of alleged abductee was handed over to the complainant---All said factors having created doubt, same became a case of further inquiry and accused was entitled to bail.

1994 MLD 1298; 2004 SCMR 244 and PLD 2004 SC 219 rel.

Ishrat Ali Lohar for Applicant.

Rasheed A. Qureshi, Asst. A.-G. Sindh.

Jawaid Chaudhry for the Complainant.

2008 M L D 535

[Karachi]

Before Khilji Arif Hussain and Rahmat Hussain Jafferi, JJ

ABDULLAH KHAN and 5 others ---Petitioners

Versus

THE STATE----Respondent

Criminal Appeal No. 301 and Criminal Revision No.109 of 2006, decided on 10th October, 2007.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324 & 149---Appreciation of evidence---Enmity existed between the parties and between the accused and the eye-witnesses---Evidence of such witnesses ought to have been looked into carefully being interested witnesses---No independent witness was examined by the prosecution despite incident took place in a thickly populated area surrounded by the shops etc.---Evidence of three alleged eye-witnesses were contradictory regarding incident---Dead bodies were handed over to the complainant party after completing the F.I.R., which had supported . the contention of accused that F.I.R. and statement under S.161, Cr.P.C. were recorded after due deliberation---T.T. pistol was produced by one of accused along with his licence at the time when he himself appeared at Police Station for the purpose of surrendering---Other two fire weapons were recovered from the garbage heap on the pointation of accused persons---Said recovery having been effected after 13 days of the incident, it was difficult to believe that said fire weapons remained lying in the garbage without notice of garbage collectors and the people of the area---Mashir of recovery was also not a person residing in the area from where recovery was effected---Accused had taken plea of alibi at the first instance---Conviction and sentence awarded to accused by the Trial Court, were set aside in circumstances.

Muhammad Ashraf and 2 others v. The State 1998 SCMR 279; Nawaz Ali and another v. The State 1981 SCMR 132; Ata Muhammad and another v. The State 1995 SCMR 599; Lalan and 2 others v. The State 1976 PCr.LJ 52; Ahmad and another v. The State 1977 PCr.LJ 62; Muhammad Boota and another v. The State and another 1984 SCMR 560; Government of the Punjab v. Dr. Ijaz Hassan Qureshi PLD 1985 SC 28; Gul Muhammad alias Guloo v. The State 2004 YLR 216; Muhammad Imran and others v. The State 2004 PCr.LJ 1697; Amal Sherin and another v. The State through A.G. N.W.F.-P. PLD 2004 SC 371; Muhammad Ashraf and 4 others v. The State and others PLD 2002 Quetta 49; Misroo v. The State 2004 MLD 1276; Arshad Ali alias Achhu v. The State 2002 SCMR 1806 and Shakar Khan v. The State 1983 PCr.LJ 1105 rel.

A.Q. Halepota and Mahmood A. Qureshi for Appellants (in Criminal Appeal No.301 of 2006).

I.A. Hashmi for the Complainant (in Criminal Appeal No.301 of 2006).

I.A. Hashmi for Applicant (in Criminal Revision No.109 of 2006).

Habib Ahmed, A.A.-G. for the State.

Date of hearing: 10th October, 2007.

2008 M L D 546

[Karachi]

Before Khalid Ali Z. Qazi, J

NASEEM AHMED---Plaintiff

Versus

KARACHI BUILDING CONTROL AUTHORITY through Chief Controller---Defendants

Civil Suit No.1472 and C.M.A. Nos. 10073 of 2007, decided on 6th February, 2008.

Court Fees Act (VII of 1870)---

----S.13---Civil Procedure Code (V of 1908), O. XXIII, R.1---Refund of court fee paid on plaint---Application for withdrawal of suit after issuance of summons to defendant and passing of stay order therein---Acceptance of withdrawal application without serving its notice upon defendant---Application for refund of court fee was accepted in circumstances.

Shaikh Riazuddin v. Aqeelur Rehman and 4 others PLD 1993 SC 76 ref.

Shah Nawaz Awan for Plaintiff.

Muhammad Iqbal Memon for Defendant.

Ahmed Prizada, learned A.A.-G. Sindh.

2008 M L D 550

[Karachi]

Before Khawaja Naveed Ahmed, J

Messrs SHAFIQUE TEXTILE MILLS LTD---Petitioner

Versus

THE STATE---Respondent

C.P. No.528 of 2007, decided on 5th December, 2007.

Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 2(a)(b)(h)---Constitution of Pakistan (1973), Art.199---Constitutional Petition---Applicability of Sindh Rented Premises Ordinance, 1979---Scope---Petitioner had challenged concurrent findings of the courts below whereby it had been held that premises in question did not fall under Sindh Rented Premises Ordinance, 1979 as same was a factory---Both courts below had committed error and had shown haste in deciding the matter of jurisdiction---Contents of the rent agreement showed that the premises had been let out for the purpose of godown and not for running a factory; if any factory had been established subsequently, it was a matter of evidence, which could be adjudicated upon after framing the issue on that point---Both judgments of the courts below were set aside and case was remanded to the Rent Controller with the direction to proceed with the case and adjudicate upon it after framing the issue of jurisdiction and decide same after recording the evidence according to law.

Muhammad Saleem v. Altaf Hussain 1998 CLC 1883; PLD 1970 Lah. 455; PLD 1976 SC 781; PLD 1985 Lah. 365; 1998 CLC 318; PLD 1982 Lah. 37; Messrs Usman Brothers v. Muhammad Aslam and 3 others 1999 CLC 2012; PLD 1993 Karachi 181; PLD 1994 Kg. 112; 1985 CLC 1675 and 1996 SCMR 771 rel.

Muhammad Sharif for Petitioner.

Date of hearing: 5th December, 2007.

2008 M L D 414

[Karachi]

Before Mrs. Qaiser Iqbal, J

MUHAMMAD DILAWAR HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 158 of 2005, decided on 17th October, 2006.

Foreigners Act (XXXI of 1946)---

----Ss.9 & 14(2)---Foreigners Order of 1951, Arts.3/2(A)---Appreciation of evidence---Allegation against accused was that he was a Bangladeshi National and had entered into territory of Pakistan illegally in the year 1985 via India through Wagah Border without any passport and valid visa---By virtue of 5.16-A of Pakistan Citizenship Act, 1951, a person domiciled in the territory of Pakistan from Bangladeshi origin before 16-12-1971 alone, could not be treated as foreigner as Bangalis were given statutory recognition---Accused had produced N.I.C., Passport and other which established a chain of circumstances relating to the habitation and existence of relatives in Pakistan---Since the parents of accused were not being accused of entering into Pakistan illegally, plea of accused carried weight as the said documents were not controverted by the prosecution---Accused had discharged the burden of proof showing that he was not a foreigner---Impugned judgment being not sustainable in law same was set aside.

Attaullah Khan for Appellant.

Agha Zafir Ali, A.A.-G. for the State.

Date of hearing: 17th October, 2006.

2008 M L D 589

[Karachi]

Before Khawaja Naveed Ahmed, J

MAQSOOD AHMED and others---Appellants

Versus

THE STATE----Respondent

Criminal Appeals Nos. 386 and 387 of 2006, heard on 17th December, 2007.

Penal Code (XLV of 1860)---

----Ss.399 & 402---Appreciation of evidence---Maximum sentence provided under S.399 P.P.C. was ten years imprisonment, while under S.402, P.P.C. maximum sentence was seven years, but the Trial Court had sentenced accused persons to undergo life imprisonment---High Court had taken serious exception to said negligence on the part of Judicial Officer who did not bother to go through the book while awarding sentence of imprisonment for life to accused persons---Awarding of fine of Rs.10,00,000 on accused persons was also very heavy which was never heard of under S.399 P.P.C.---Material contradictions appeared in the evidence of the prosecution witnesses, which could not be overlooked as edifice of entire prosecution story had fallen down by said contradictions---State Counsel, who was unable to defend the prosecution case, had conceded that the conviction and sentence awarded to accused persons was unsustainable under the law---Impugned judgment was set aside and accused persons were released.

Aamir Mansoob Qureshi for Appellants.

Fazal-ur-Rehman Awan for the State.

Date of hearing: 17th December, 2007.

2008 M L D 600

[Karachi]

Before Agha Rafiq Ahmed Khan, J

MUHAMMAD AFZAL---Applicant

Versus

THE STATE----Respondent

Criminal Revision Application No. 155 of 2007, decided on 3rd January, 2008.

Criminal Procedure Code (V of 1898)---

----S.516-A ---Penal Code (XLV of 1860), S.395---Interim custody of vehicle---Reduction of surety amount---Trial Court had ordered that the interim custody of the vehicle be given to the applicant subject to his furnishing surety in the sum of Rs.1,00,000---Applicant moved application for reduction of surety amount, which application was rejected by the Trial Court---Validity---Vehicle in question was not a case property as according to the contents of F.I.R., accused persons, after commission of offence, left the place of incident while driving said vehicle which was parked in the parking area---Vehicle in question being not case property, High Court directed. that vehicle be handed over to applicant on execution of P.R. Bond in the sum of Rs.2,00,000 for keeping the vehicle in the same condition and produce same in the court as and when required till disposal of the case.

1971 PCr.LJ 19; 1989 PCr.LJ 1110; PLD 1951 (B.J.) 57; 2005 PCr.LJ 1510; Haji Rab Nawaz v. The State 1988 PCr.LJ 1353 and 1984 PCr.LJ 1935 rel.

Jawaid Haider Kazmi for Applicant.

Sabir Haider for the State.

2008 M L D 608

[Karachi]

Before Mrs. Qaiser Iqbal, J

MUHAMMAD FARRUKH KHAN ZAI---Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No.794 of 2007, decided on 25th September, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)-Bail, grant of---Alleged recovery of 2.5 Kgs., heroin was effected from 265 leather belts in the form of small bags out of which 11 plastic bags of tube size were sent to the Chemical Examiner with, gross weight of 54.400 grams---Investigating Officer having secured powder in small bags, entire property was required to be sent to Chemical Analysts to prove that each bag contained heroin powder, wherefrom a small quantity of heroin powder was proved in accordance with law---Since total commodity recovered from the possession of accused having not been sent to the Chemical Examiner, it would not be presumed that sample was taken out from each and every bag---Accused was admitted to bail, in circumstances.

Waris Khan v. The State 2006 SCMR 1051; Muhammad Hashim v. State PLD 2004 SC 856; Dost Khan v. The State 2007 SCMR 1437; Sahib Zada Jehangir v. The State through ANF 2007 PCr.LJ 1113; Nadeem v. The State 2007 MLD 1092; Muhammad Farooq Khan v. The State 2007 PCr.LJ 89; Ali Muhammad v. The State 2003 SCMR 54; Muhammad Hashim v. The State PLD 2004 SC 856; Daulat Khan v. The State 2007 SCMR 1437 and Muhammad Nawaz v. The State 2007 MLD 1846 rel.

Shaukat Hayat for Applicant.

Fazlur Rehman Awan State Counsel.

2008 M L D 613

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

MUSADIQ HUSSAIN and others---Applicants

Versus

THE STATE---Respondent

Criminal Revision Application No. 7 of 2007, decided on 28th February, 2007.

Criminal Procedure Code (V of 1898)---

----Ss.540---Scope of S.540, Cr.P.C.---Recalling and re-examination of prosecution witnesses---Trial Court had recorded the evidence of 12 witnesses out of whom four witnesses were cross-examined---Trial Court had power to examine any person as a witness and recall and re-examine any witness at any stage of trial if it was considered essential for just decision of the case---Trial Court could not deprive any party his legal and valid defence as the veracity of the witness was to be decided by way of cross-examination---F.I.R. in the case had not been produced, either mistakenly or deliberately---Re-examination of author of F.I.R. by recalling him was essential before passing the judgment---Court had to do complete justice between the parties and the carelessness or ignorance of any party or the delay that could result in the conclusion of the case, should not be a hindrance in achieving the object---For the purpose of acting under S.540 Cr.P.C., it was permissible to look into the material, not formally admitted in evidence, whether it was available in the records of the judicial file or in the police file or elsewhere---No bar existed under the law that if a witness was examined by the Trial Court he could not be re-examined, if reasonable grounds were to recall such witness in the interest of justice---Application under S.540 Cr.P.C. for recalling witnesses was not properly considered by the Trial Court---Impugned order was set aside and Trial Court was directed to recall four witnesses, required to be re-examined---Trial Court would issue process for the said witnesses for their cross-examination" and decide case in accordance with law.

State v. Muhammad Yaqub and others 2001 SCMR 308 and Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 ref.

Zubair Ahmed Rajput for Applicants.

Muhammad Ismail Bhutto, State counsel.

2008 M L D 619

[Karachi]

Before Rahmat Hussain Jafferi, J

ABDUL SATTAR---Appellant

Versus

THE STATE----Respondent

Criminal J.A. No.104 of 2004, decided on 13th February, 2007.

Penal Code (XLV of 1860)---

----S.302(b)---Criminal Procedure Code (V of 1898), S.164--Appreciation of evidence---Benefit of doubt---Ocular testimony consisted of complainant---Statement of complainant was highly doubtful as it was neither supported nor corroborated by any piece of evidence---Prosecution had also not relied upon statement of complainant---Prosecution, in circumstances, had failed to prove the ocular testimony---Alleged confession had been retracted---Retracted confession, if it was voluntarily made and was true, then it was sufficient to convict accused without any corroboration, but as a rule of procedure and prudence confession should be corroborated on material particulars---Motive alleged in the confession had not been corroborated---Confession was neither supported nor corroborated by any piece of evidence---Same being not true, it could not be made the sole basis for conviction of accused---Dagger allegedly recovered from accused, was not sent to Chemical Analyzer to have his report that it was stained with blood---Said dagger having not been sealed at the place of incident, possibility of tampering with the dagger could not be ruled out---Even otherwise recovery of blood-stained dagger was not a substantial piece of evidence on which a confession could be based, but it was a corroborative piece of evidence which could corroborate a substantive piece of evidence---When there was no substantive piece of evidence, then nothing was left to be corroborated by the corroborative piece of evidence---Merely on corroborative piece of evidence no conviction could be based---Prosecution having failed to prove the case against accused beyond any reasonable doubt, accused was entitled to the benefit of doubt, which accordingly was given to him.

Zuber Ahmed Rajput for Appellant.

Habib-ur-Rehman Shaikh, A.A.-G. for the State.

Date of hearing: 7th August, 2006.

2008 M L D 627

[Karachi]

Before Rahmat Hussain Jafferi and Sajjad Ali Shah, JJ

MUHAMMAD ARSHAD---Applicant

Versus

THE STATE----Respondent

Criminal Bail Application No. 369 of 2006, decided on 13th July, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9---Bail, refusal of---Case of prosecution was supported by the witnesses and Chemical Analyzer's report---Material available on record showed that reasonable grounds were found to exist for believing that accused was involved in the case---Police entry made in the Roznamcha of Police Station, was yet to be produced in the evidence and that was subject to proof by examining the witnesses---Accused appeared to have taken the plea of alibi through said Police entry, which plea had to be examined after producing the evidence at the time of trial---Said points could be properly appreciated after assessing and appreciating the evidence led by the parties---Only tentative assessment of evidence was required to be undertaken at bail stage and the deeper appreciation of evidence was the function of the Trial Court, which could be done at the time of trial---Accused being not entitled to the concession of bail, his bail application was dismissed.

Muhammad Waseem Samo for Applicant.

Farrukh Zia Shaikh, Special Prosecutor A.N.F. a/w Ms. Afsheen for the State.

2008 M L D 632

[Karachi]

Before Munib Ahmad Khan, J

FAIQ ALI---Applicant

Versus

THE STATE----Respondent

Criminal Bail Application. No. 109 of 2007, decided on 10th May, 2007.

Criminal Procedure Code (V of 1895)---

----S.497---Bail, refusal of---Bail was sought on the ground of hardship, contending that charge was framed after about three years from his arrest, while no witness had' been examined---Nothing was available against accused showing that he caused the delay in proceedings as he was in jail, but other circumstances existed due to which case could not proceed, benefit of which could not be given to accused, because of his role in the F.I.R. which had been alleged to be very open and conspicuous---Trial Judge was directed to take up the matter and record the evidence of complainant as well as other available witnesses after amending the charge within specified period; thereafter, if the case was not decided, accused would be entitled to move bail application.

1986 PCr.LJ 2947; 1992 PCr.LJ 2325 and PLD 2005 Page. 255 rel.

Asif Ali Abdul Razzak Soomro for Applicant.

Muhammad Ismail Bhutto for the State.

2008 M L D 637

[Karachi]

Before Ali Sain Dino Metlo, J

DAWOOD KHAN and 4 others---Applicants

Versus

THE STATE----Respondent

Special Criminal Bail Application No.21 of 2006, decided on 11th May, 2006.

Criminal Procedure Code (V of 1898)---

----S.497---Customs Act (IV of 1968), S.156(1)(8)---Bail, refusal of---Accused persons were caught red-handed while smuggling into the country a huge quantity of prohibited goods and it could not be said, in circumstances that no reasonable grounds were available to disclose complicity of accused persons---Contention of standing counsel that despite enhancing the punishment for the offence of smuggling to rigorous imprisonment for 14 years in 1988, the menace of smuggling had increased,. was not without force, inasmuch as it was the certainty of enforcement and not only the severity of punishment, which would deter the crime---Case being not fit for the grant of bail, bail application was dismissed.

Noorul and others v. The State 1976 SCMR 190; Ali Muhammad and others v. The State 1992 SCMR 696 and Manzoor and 4 others v. The State PLD 1972 SC 81 rel.

Sohail Muzaffar for Applicants.

Mahmood Alam Rizvi for Respondent.

2008 M L D 642

[Karachi]

Before Mrs. Yasmin Abbasey, J

QUDRAT ALI KHAN---Petitioner

Versus

THE STATE----Respondent

Criminal Bail Application No.65 of 2007, decided on 9th April, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.392---Bail, grant of---Point in question involved in the matter of alleged robbery, required evidence---Out of eleven witnesses only three had been shown to have been examined---No material fact, in circumstances had been brought on record against the accused---Accused who was behind the bars since 2005, was allowed to be released on bail.

Shamsher Abbas for Applicant.

Afsneen Aman for the State.

Date of hearing: 9th April, 2007.

2008 M L D 646

[Karachi]

Before Munib Ahmad Khan, J

WAZIR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-384 of 2006, decided on 8th May, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Further inquiry---Complainant had named 26 persons with very specific roles, but after investigation Police had differed from the version of the complainant and had named five persons in Column No.2---Such situation had created a doubt to some extent in the involvement of each and every person in the crime---No specific role was attributed to accused and he was alleged for firing in the air, when other accused were leaving after committing crime---Participation of accused in alleged crime as well as severity of his act was to be determined after further inquiry---Accused, in circumstances was enlarged on bail.

Ahmad v. the State 2006 SBR 1493 ref.

Jai Jai Vehsno for Applicant.

Muhammad Ismail Bhutto for the State.

2008 M L D 651

[Karachi]

Before Ghulam Rabbani, Actg. C.J. and Maqbool Baqar, J

SHER ZAMAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 496 of 2006, decided on 11th July, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Bail, refusal of---Accused had sought bail on the ground of his ailment and in support of his bail plea, counsel for accused had referred to a certified copy of report of Medical Officer, Central Prison Hospital---Nothing was available on record to show that remaining of accused in the jail was hazardous to his life---Held; Counsel for accused having expressed that damage could occur to accused in case he would remain in the jail, let accused be first re-examined by the Medical Officer, Central Prison Hospital; in case contentions of counsel for accused were found to be correct, accused should be produced before some Medical Expert on advice of Medical Officer of the Central Prison Hospital in heavy escort for his medical examination and report---Accused shall be at liberty to apply to the Trial Court where his bail plea will be considered on its own merits after the medical expert furnishes his report.

Akhtar A. Chaner for Applicant.

Farrukh Zia Shaikh, Special Prosecutor along with Ms. Afsheen Aman, and A.N.F. for the State.

2008 M L D 661

[Karachi]

Before Mushir Alam and Shamsuddin Hisbani, JJ

SIDDIQUE through his Legal Heirs and 9 others---Petitioners

Versus

MEMBER (L.U.) BOARD OF REVENUE, SINDH and others---Respondents

Constitutional Petition No. D-21 of 1992 decided on 16th February, 2006.

Colonization of Government Lands (Punjab) Act (V of 1912)---

----S.10---Constitution of Pakistan (1973), Art.199---Constitutional petition---Cancellation of grant of land---Refund of amount of grant to grantee---Petitioner was granted land under statement of condition No.24 as contained in Notification issued under S.10 of Colonization of Government Lands (Punjab) Act, 1912 and petitioner had paid the grant amount as determined and demanded---Said grant subsequently was cancelled---Condition No.24 contained in the Notification of grant of land to petitioner provided that if land in question be required for any public purpose, grantee on demand by the Collector, would surrender the land and he would be entitled to the refund of. the purchase price of said land paid by him---Petitioner having fully paid the grant amount, any subsequent reservation of said granted land, could not be made without complying the condition No.24---Collector was competent to determine the sum as contained in condition No.24---Petitioner, in circumstances was entitled to refund of the amount of grant along with other sum as could be determined by the Collector in accordance with condition No.24---Authority was directed by the High Court to comply with condition No.24 accordingly.

D.M. Lohano for Petitioners.

Masoud A. Noorani, Addl. A.-G. for Respondents Nos. 1 to 4.

Muhammad Younis Rehan for Respondents Nos. and 5 and 6.

Date of hearing: 16th February, 2006.

2008 M L D 668

[Karachi]

Before Muhammad Afzal Soomro and Rahmat Hussain Jafferi, JJ

GUL HASSAN---Appellant

Versus

THE STATE---Respondent

Special Anti-Terrorism Appeal No.39 and Confirmation Case No. 5 of 2005, decided on 7th May, 2007.

(a) Anti-Terrorism Act (XXVII of 1997)---

----S.7(a)---Penal Code (XLV of 1860), Ss.302, 324, 427 & 114---Explosive Substances Act (VI of 1908), S.3---Appreciation of evidence---Two prosecution witnesses had allegedly seen accused hugging a person who was holding a briefcase just before the incident---Allegation was that said person went inside the mosque and then the blast took place---Distance between check post and the persons who were allegedly present and hugging each other was 8 ft.---If the. Police Constables armed with weapons were present at such a close distance, then it did not. appeal to common sense that criminals would hug each other and make conversation with regard to making of blast so loudly that a person standing at a distance of 7 or 8 ft. could hear them---No evidence was led by the prosecution to show that the bomb blast was caused by the person who entered into the mosque---Cases of heinous crimes particularly involving capital punishment could not be decided on mere presumption or inference---Both the witnesses were police set-up witnesses and their evidence was not corroborated by other prosecution witness or by any private person---Prosecution had not led any evidence connecting alleged suicide bomber with accused---Such piece of evidence did not connect accused with the offence---Identification test was a corroborative piece of evidence---If the ocular testimony was discarded, then merely on identification test, no conviction could be awarded---In the present case, at the most, identification test in respect of accused would be to the effect that he was simply seen hugging a person at the place of incident, which by itself, was no offence---Identification test, in circumstances, would carry no weight in the peculiar circumstances of the case---Prosecution having failed to prove case against accused, conviction and sentence awarded to accused by the Trial Court under impugned judgment, was set aside and accused was acquitted and set at liberty.

(b) Qanun-e-Shahadat (10 of 1984)---

----Art. 22---Identification---No conviction could be awarded merely on identification test, of the ocular testimony was discarded.

M. Ilyas Khan & M. Farooq for Appellant.

Habib Ahmed, A.A.-G for the State.

Date of hearing: 22nd March, 2007.

2008 M L D 678

[Karachi]

Before Agha Rafique Ahmed Khan, J

ABID HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.151 of 2008, decided on 4th March, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(b) & 21---Bail, grant of---In the present, case S.9(b) of Control of Narcotic Substances Act, 1997 was attracted wherein maximum punishment provided was seven years which did not fall within the prohibitory clause of S.497, Cr.P.C.---Under S.21 of Control of Narcotic Substances Act, 1997, Assistant Sub-Inspector was not empowered to detain or search accused as was done---Accused was+ granted bail, in circumstances.

2000 PCr.LJ 1222; Mumtaz Ali v. the State 2001 YLR 1847; 2006 YLR 1132 and 2002 PCr. LJ 502 rel.

Ghulam Rasool Mangi for Applicant.

Syed Muhammad Ali for the State.

2008 M L D 679

[Karachi]

Before Mrs. Yasmin Abbasey, J

ABDUL SATTAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.506 of 2007, decided on 19th June, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.392---Bail, grant of---No specific role was shown against accused, except that he was standing in the house of complainant while incident took place---Investigating Officer was also of the view that during investigation he was not able to get any information from accused with reference to the incident---No recovery had taken place---No identification parade was held to check false implication--All said factors went in favour of accused and had created doubt---Accused was allowed to be enlarged on bail, in circumstances.

Imtiaz Ali Awan for Applicant.

Muhammad Ayaz Khan for the State.

2008 M L D 755

[Karachi]

Before Khalid Ali Z. Qazi, J

TRADING CORPORATION OF PAKISTAN (PVT.) LTD.---Plaintiff

Versus

Messrs AL-NOOR (PVT.) LTD.---Defendant

Suit No.572 of 1997, decided on 7th February, 2008.

(a) Qanun-e-Shahadat (10 of 1984)---

----Arts.132 & 133---Shortage in bailed stock of rice and bags---Proof---Shortage of rice claimed by plaintiff admitted by defendant during his cross-examination and in his letter addressed to plaintiff---Quantity of short bags and value thereof mentioned in plaint and affidavit-in-evidence of plaintiff not challenged during his cross-examination by defendant---Effect ---Plaintiff's case stood proved and would not require any further proof---Principles.

Mst. Farooq Bibi v. Abdul Khaliq and others 1999 CLC 1358; Central Bank of India v. Syed Muhammad Abdul Jalil Shah and others 1999 CLC 671 and Muhammad Akhtar v. Mg. Manna and 3 others 2001 SCMR 1700 rel.

(b) Contract Act (IX of 1872)---

----Ss.151, 152 & 176---Contract for storage of rice---Shortage of rice in bags---Burden of proof---Duty of bailee was to take all reasonable precautions to obviate risk, which actually accrued or might reasonably be apprehended or foreseeable---Onus to prove proper discharge of such duty would initially lie on bailee and not on bailor---In case of bailee's failure to discharge such onus, he would become liable to make good loss of bailor---Principles.

Messrs Master Sons v. Messrs Ebrahim Enterprises and another 1988 CLC 1381 and Q.B.E. Insurance Ltd. v. The Trustees of the Port of Karachi through Chairman and others 1992 CLC 904 ref.

(c) Civil Procedure Code (V of 1908)---

----O. VIII, R.6 & O.XX, R.16---Suit for accounts on basis of contract---Security amount plus retention money lying with plaintiff as per terms of contract---Defendant's counter-claim for interest/profit on such money---Maintainability---Plaintiff as per temp of contract was entitled to retain such money until finalization of accounts after performance of contract by defendant---Retention of such money by plaintiff could not be described as illegal, thus, question of payment of any interest/profit thereon would not arise---Counter-claim of defendant was dismissed with costs.

(d) Contract Act (IX of 1872)---

----S.148---Contract for bailment of rice---Enquiry report regarding shortage of rice---Validity---Such report could not legally be described as illegal and ineffective in absence .to the contrary.

Syed Mamnoon Hassan for Plaintiff.

Agha Faquir Muhammad and Agha Zafar for Defendant.

Date of hearing: 27th November, 2007.

2008 M L D 782

[Karachi]

Before Sabihuddin Ahmed and Amir Hani Muslim, JJ

SHAHZAD ALI---Petitioner

Versus

CITY DISTRICT GOVERNMENT through Nazim-e-Ala and another---Respondents

Constitutional Petition No.D-597 of 2003, decided on 16th October, 2003:

Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Allotment of plot---Duties of public authorities---Plot in question was duly allotted to predecessor-in-­interest of petitioner and petitioner had purchased occupancy rights in the plot from the allottee---Formal letter was issued by the Authority acknowledging him as holder of occupancy rights, his name was substituted in the record and transfer/mutation of the plot was effected---While petitioner was still in possession of said plot, Authority chose to auction same in favour of respondent---Petitioner dispatched notices to respondents claiming that he could not be deprived of his valuable rights m the said plot, but having received no response; he filed present constitutional petition---Validity---Authority had honestly felt that allotment order in possession of petitioner was not forged or had been obtained through illegal means---Authority being public authority was bound by limitation imposed by law and could not assume to be above the law---Authority was restrained from interfering with the allotment rights of the petitioner except in accordance with law.

Haji Noor Muhammad v. KDA PLD 1975 Kar. 373 ref.

Muhammad Yaqoob for Petitioner.

Manzoor Ahmed for Respondent No.1.

Nemo for Respondent No.2.

Date of hearing: 16th October, 2003.

2008 M L D 793

[Karachi]

Before Sabihuddin Ahmed and Amir Hani Muslim, JJ

SIBTE-MUJTABA KAZMI---Petitioner

Versus

CANTONMENT BOARD through Cantonment Executive Officer and 3 others---Respondents

Constitution Petition No.55 of 2003, decided on 18th December, 2003.

Cantonments Act (XI of 1924)---

----Ss. 184, 185 & 186---Constitution of Pakistan (1973), Art.199---Constitutional petition---Regularization of illegal construction--Statement had been filed on behalf of respondent to the effect that illegal construction had been regularized and composition fee had also been paid---Authorities had contended that violation of the compulsory open space requirement and raising additional floors in excess of the original approved plan could not be regularized by Authority---Validity---Sections 184 & 185 of Cantonments Act, 1924 had conferred wide powers upon the Cantonment Board and other authorities to condone any illegality in the construction and accepting composition fee instead---Sanctions for constructions of buildings were to be obtained under Chapter XI of the Cantonments Act, 1924 and the building bye-laws made under S.186 of said Act could not override statutory provisions.

Raja Sikandar Khan Yasir for Petitioner.

Ashraf Ali Butt for Respondent No.1

Manzoor Ahmad for Respondent No.2

Shoaib Ali Khan for Respondent No.3.

S.M. Alam for Respondent No.4.

2008 M L D 797

[Karachi]

Before Zia Perwaz, Syed Zawwar Hussain Jafferi and Amir Hani Muslim, JJ

TAJ MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. 40 of 2001, decided on 20th April, 2006.

Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(c)---Appreciation of evidence---Entry of departure of excise staff had shown the time of their departure as 8-00 a.m.---Same entry however, had incorporated the arrest of accused, and recovery of contraband items according to which it was effected at 10-00 a.m.---Said entry belied the prosecution story as entry was either afterthought or had been made with dishonest intent to give the benefit to accused---Investigating Officer did not investigate the case honestly---Material contradictions existed between the deposition of both prosecution witnesses---Mere presence of accused in the oil tanker from which contraband was recovered, was not sufficient to connect him with the offence, unless prosecution would bring material to establish that he had the knowledge of contraband articles lying in the said oil tanker---Prosecution in the face of the evidence produced in the case had failed to prove that accused was in the knowledge of contraband articles---Accused was not found to be the owner of the oil tanker---All said factors were sufficient to hold that evidence of both prosecution witnesses was not confidence inspiring and had material contradiction, the benefit of which must be given to accused---Impugned judgment was passed believing the evidence, of the prosecution story though it had material contradictions and reliance upon such evidence, which was not legal to convict accused---Benefit of doubt was given to accused and he was directed to be released.

M. Ismail v. State PLD 1970 Kar. 261; Latif v. State 1992 PCr.LJ 116; Loung v. State 1999 PCr.LJ 595; Abdul Sattar v. State 2002 PCr.LJ 51; Ashiq Hussain v. State 2001 PCr.LJ 1736 and Zahoor Ahmed Awan v. The State 1997 SCMR 543 rel.

Zubair Ahmed Rajpur for Appellant.

Habib-ur-Rehman Shaikh, A.A.-G. for the State.

Date of hearing: 20th April, 2006.

2008 M L D 803

[Karachi]

Before Sarmad Jalal Osmany and Ali Sain Dino Metlo, JJ

MUHAMMAD FAROOQ KHAN---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

C.P. No.D-1054 of 2007, decided on 8th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.406, 420 & 506/34--Constitution of Pakistan (1973), Art.199---Constitutional petition--Interim bail, grant of---Prima facie, it appeared that accused was present in the city of 'K' on date of incident, when F.I.R. was lodged at place 'L'---Interim bail was granted to accused, in circumstances.

Muhammad Zafar for Petitioner.

2008 M L D 805

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mehmood Alam Rizvi, JJ

MUHAMMAD FAROOQ KHAN---Petitioner

Versus

PROVINCE OF SINDH and others---Respondents

Criminal Bail Application No.396 of 2007, decided on 8th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.406, 420 & 506-B/34---Pre-­arrest bail, grant of---Mater was sub judice before Judicial Magistrate---On the day of alleged incident, accused was at place 'K' where he was attending the proceedings of case in the Court of Judicial Magistrate---Criminal proceedings at place 'L', in circumstances, had been motivated to harass and humiliate accused---Question of alibi, however, would be considered by the Trial Court---Sections of P.P.C., mentioned in F.I.R., were bailable in nature except S.506-B, P.P.C.---Accused, in circumstances, had succeeded in making out a prima facie case that .F.I.R. had been manipulated with ulterior motives---Accused in circumstances was entitled to the concession of pre-arrest bail.

Muhammad Zafar for Applicant.

Abdul Jabbar Lakho, Assistant Advocate General.

2008 M L D 822

[Karachi]

Before Ali Sain Dino Metlo, J

ABDUL SATTAR and 5 others---Applicants

Versus

MUREED and others---Respondents

Civil Revisions Application No.51 of 2006, decided on 25th January, 2008.

(a) West Pakistan Land Revenue Act (XVII of 1967)---

----S.42---Mutation attested on basis of undisputed registered sale deed---Cancellation of mutation by Revenue Officer without notice to purchaser and assigning any reason---Validity---Entries in revenue record would create or extinguish title over property---Revenue Officer had no authority to cancel such mutation---Any number of subsequent entries illegally made in revenue record could not have effect of extinguishing right of rightful owner---Purchaser would not cease to be owner due to such cancellation.

1968 SCMR 573; 1968 SCMR 842(2) and 2001 SCMR 338 rel.

(b) West Pakistan Land Revenue Act (XVII of 1967)---

----S. 42---Entries in revenue record---Evidentiary value---Such entries would not create or extinguish title over property.

1968 SCMR 573 and 1968 SCMR 842(2) rel.

(c) Specific Relief Act (I of 1877)---

----Ss. 42 & 54---West Pakistan Land Revenue Act (XVII of 1967), S.42---Cavil Procedure Code (V of 1908), Ss. 79, 115 & O. XXVII, R.1---Suit for declaration and injunction---Cancellation of plaintiff's mutation attested on basis of undisputed registered sale deed---Suit decreed by Courts below---Objection as to non-impleading of government as party in suit raised before High Court in revision filed by defendant---Validity---Government was not a necessary party in such suit---Adjudication of present suit by Civil Judge and not by Senior Civil Judge could not be challenged on assumption of government as party---Such objection had not been taken before two Courts below---Decree of Civil Judge had merged into decree of Appellate Court, whose jurisdiction to adjudicate such matter was not in dispute---Order of cancellation of mutation passed by Revenue Officer being void and without jurisdiction would not require to be formally set aside---High Court dismissed revision petition in circumstances.

Muhammad Shafi v. Mushtaq Ahmad 1996 SCMR 856 rel.

Abdul Qadir Shaikh for Applicants.

Nemo for the Respondents.

Date of hearing: 25th January, 2008.

2008 M L D 835

[Karachi]

Before Mushir Alam, J

ABDUL JABBAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.170 of 2007, decided on 16th July, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.504/34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of---Further inquiry---Accused was apprehended thirteen days after the occurrence when he was nominated in the crime by the witness in his statement recorded under S.161, Cr.P.C.---Accused was not put to the identification test---No recovery was stated to have been effected---Challan had been submitted wherein accused was shown as absconder---Since no plausible explanation for the delayed recording of the statements of the witnesses was recorded and no recovery had been effected, accused had made out a case of further enquiry---Accused was admitted to bail, in circumstances.

Jai Jai Veshno Mange Ram for Applicant.

Muhammad Ismail Bhutto, State Counsel.

2008 M L D 842

[Karachi]

Before Nadeem Azhar Siddiqi, J

ALLAH REKHIO and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.483 of 2006, decided on 13th July, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Bail, grant of---Further inquiry---Case was pending since last more than thirteen years and only three witnesses were examined so far---Names of accused persons did not appear in the F.I.R. and statements under S.161, Cr.P.C., they were implicated on the basis of statements recorded under S.164, Cr.P.C. and it was not known as to how the witnesses came to know about the involvement of accused persons---Eye-witnesses had not supported prosecution version by saying that they saw 8/9 accused persons with muffled faces with deadly arms---Mashir had also not supported the version by saying that nothing was secured from the place of incident---Fact that the names of accused persons were not given in the F.I.R. and in statements under S.161, Cr.P.C., the possibilities of false implication of accused as an afterthought could not be ruled out---Case of further enquiry having been made out, accused were allowed bail, in circumstances.

Syed Amanullah Shah v. The State PLD 1996 SC 241 ref.

Ali Nawaz Ghanghro for Applicants.

Nisar Ahmed Abro, State Counsel.

2008 M L D 847

[Karachi]

Before Abdur Rahman Faruq Pirzada, J

GUL SHER---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.S-180 of 2008, decided on 25th March, 2008.

(a) Criminal Procedure Code (V of 1898)---

----S. 497----Penal Code (XLV of 1860), Ss.324/337-A(i)---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, grant of---Accused had been allegedly apprehended by the complainant party with the aid of police officials by giving him a chase just after the occurrence and he was implicated in the promptly lodged F.I.R.---Complainant and both the eye-witnesses of the incident however, had sworn their affidavits before the Trial Court exonerating the accused from the alleged offence---Said prosecution witnesses had also verified their affidavits and the contents thereof before High Court--Even though specific allegations had been made against the accused in the F.I.R., but the same had to be seen in juxtaposition with the stance of the prosecution witnesses before the Trial Court---Private eye-witnesses including complainant were not supporting the prosecution case, and prima facie, the case was not likely to end in conviction of accused---Even the alleged recovery of pistol and the robbed property from the possession of accused was not being supported by the Mashir---Police officials were not the eye-witnesses of actual incident of robbery who had arrived later, when complainant party was in pursuit of the accused--Two different sets of prosecution witnesses in the case were available who might lead evidence in opposite directions, but the prime importance would naturally go to the complainant himself who was victim of robbery as well as to the private eye-witnesses---Evidence of police officials would be a corroborative piece of evidence in circumstances---Accused, therefore, was entitled to the concession of bail and he was allowed bail accordingly.

Muhammad Nawaz alias Najja v. The State 1991 SCMR 111, Ali Muhammad and another v. The State PLD 2002 Kar. 125, PLD 2004 Kar. 566; Muhammad Ali v. The State 2006 YLR 3029; Jawad Ahmed v. The State 2002 MLD 400; Muhammad Hayat v. The State 1988 SCMR 474; Syed Amanullah Shah v. The State PLD 1996 SC 241; M. Sadiq v. Sadiq PLD 1985 SC 182; Zafar Iqbal v. the State PLD 2004 Kar. 566; Rehmat Ali and another v. The State 1979 SCMR 30 and Allah Bakhsh v. Nazar Hussain Shah 1979 SCMR 137 ref.

(b) Criminal Procedure Code (V of 1898)---

----S. 497-Bail, grant of---Principles---Where doubt arises regarding the participation of accused in the commission of the crime, then it is better to keep him on bail rather than to keep him in jail.

Syed Amanullah Shah v. The State PLD 1996 SC 241 ref.

(c) Criminal Procedure Code (V of 1898)---

----S.497---Bail, grant of---Principles---Grant of bail as of right---Bail can be granted as of right if the officer in charge of police or Court comes to a definite conclusion on consideration of entire material that there are no reasonable grounds for believing that accused has committed a non-bailable offence.

M. Sadiq v. Sadiq PLD 1985 SC 182 ref.

S. Madad Ali Shah for Applicant.

Rasheed Ahmed Qureshi, Asst. A.G. Sindh along with Dhani Parto ASIP P.S. Tando Adam.

2008 M L D 861

[Karachi]

Before Munib Ahmad Khan, J

HAJI alias GHULAM NABI---Applicant

Versus

THE STATE---Respondent

Criminal Jail Application No.S-112 of 2004, decided on 5th April, 2007.

Penal Code (XLV of 1860)---

----S. 302/34---Appreciation of evidence---Evidence against accused was full of doubts as complainant and the other who were allegedly injured in the. incident died before recording of their evidence---Investigating Officer of the case was also not examined as he was dead by that time---Only evidence which prevailed upon the Trial Court was the evidence of only one prosecution witness, but his evidence could not be relied upon as his version was contrary to the factual position recorded by the police as well as by the doctor in his medico-legal report---No recovery was made from accused---Evidence of doctor in respect of both injured belied the statement of the only one prosecution witness---Impugned judgment of the Trial Court was set aside giving benefit of doubt to accused.

Sardar Khan Lashari for Applicant.

Mushtaque Ahmed Abbasi, Asstt. A.G: for the State.

Date of hearing: 5th April, 2007.

2008 M L D 866

[Karachi]

Before Ali Sain Dino Metlo, J

MORRISON BHATTI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 155 of 2008, decided on 27th March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.334---Bail, refusal of---Accused had, allegedly after giving blows whit an iron bar on the head and other parts of the body of his wife cut off the tip of her nose with a pair of scissors---Matter had been reported to the police on the same day by the brother of the victim---Section 334, P.P.C. had been incorrectly applied in the F.I.R.---Cutting of nose even a part of it would clearly cause permanent disfigurement, which according to S.335, P.P.C. fell within the purview of "Itlaf-i-Udw" and the offence was punishable under S.336, P.P.C., inter alia, with imprisonment upto ten years, and the same was correctly applicable in the case---Violence committed by the accused was a worst type of domestic violence and there was increasing tendency of such violence in the society---Most of the witnesses including the victim had already been examined and the trial was near completion---Bail was refused to accused in circumstances.

Raja Muhammad Hanif for Applicant.

Qazi Wali Muhammad for the State.

2008 M L D 871

[Karachi]

Before Faisal Arab, J

ABDUL HALEEM---Plaintiff

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Managing Director---Defendant

Suit No.754 of 1993, decided on 26th January, 2006.

Limitation Act (IX of 1908)---

----Arts. 23 & 115---Malicious prosecution---Suit for damages on account of malicious prosecution---Limitation---Plea of plaintiff was that he had been illegally dismissed from service and had been dragged in the court mala fide only to save the real culprit-Suit filed by the plaintiff was basically for damages on account of malicious prosecution---Plaintiff had filed suit four years after his acquittal, whereas Art.23 of Limitation Act, 1908 had provided one year period for filing of suit and said period of one year was to start from the date of acquittal or when prosecution otherwise was terminated---Suit by the plaintiff clearly being barred by time, was liable to be dismissed on that ground---Even if suit filed by plaintiff was treated for compensation for breach of contractual right, that was to be filed within the period of three years which would start from the date when defendant had refused plaintiff's demand for reinstatement in service as provided under Art.115 of Limitation Act, 1908---Present suit having been filed after expiry of 3 years and seven months was also barred by time, even if Art.115 of Limitation Act, 1908 was applied.

Ahmedullah Farooqi for Plaintiff.

Yawar Farooqi for Defendant.

Date of hearing: 26th January, 2006.

2008 M L D 886

[Karachi]

Before Khawaja Naveed Ahmed, J

MUKHTAR ALI and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 120 of 2001, decided on 9th April, 2008.

Penal Code (XLV of 1860)---

---Ss. 302(a) & 364-A/109---Appreciation of evidence---Compromise---Accused were convicted and sentenced for life imprisonment and fine---During pendency of appeal filed by accused against their conviction and sentence, a compromise was arrived at between the parties---Accused were convicted and sentenced under Ss.302, 364-A & 109 P.P.C., out of which S.364-A P.P.C. was not compoundable---State Counsel had stated that accused persons had served more than 10 years in jail and if the sentence in a non-compoundable offence under S.364-A P.P.C. was reduced to one already undergone, he would have no objection---Compromise arrived at between the parties in the case under S.302(a) P.P.C. was accepted and sentence and conviction awarded thereunder was set aside, while their conviction under S.364-A P.P.C. was upheld, but their sentence was reduced to the one already undergone on each count---Fine of Rs.50,000 was also reduced to Rs.5,000.

Yousaf Ali v. State 2002 SCMR 1885 and Nazir Ahmad v. State 2007 PCr.LJ 185 rel.

Sultan Mehmood and another v. The State 1986 PCr.LJ 2410 and Younis v. State 2007 YLR 3060 ref.

Kashif Hameed for Appellants.

Fazalur Rehman Awan for the State.

Date of hearing: 9th April, 2008.

2008 M L D 902

[Karachi]

Before Nadeem Azhar Siddique, J

COLONY SARHAD TEXTILE MILLS LIMITED---Petitioner

Versus

MUHAMMAD ASLAM---Respondent

Execution Application No.48 of 2007, and C.M.A. No.45 of 2008, decided on 18th March, 2008.

(a) Civil Procedure Code (V of 1908)---

----O.XXI, Rr. 58 & 64---Decree, execution of---Objection to attachment of property---Proof---Title document produced by objector would be sufficient to prove that such property belonged to him.

(b) Civil Procedure Code (V of 1908)---

----O.XXI, Rr. 58 & 64---Decree, execution of---Objection to attachment of property---Objector being son of judgment-debtor and also party to suit claimed such property to have been gifted to him by judgment­-debtor---Validity---After dismissal of suit against objector and passing of decree, such property had been transferred in his name just to avoid execution of decree---Objector had claimed attached property through judgment-debtor, who was his father and not independently---Objector for invoking provision of O.XXI, R.58, C.P.C., had to prove that he acquired title in good faith and for consideration subsequent to date of first attachment---Judgment-debtor had fraudulently transferred such property in favour of his son-objector---Objection petition was dismissed in circumstances.

Zafar Alam Khan for Decree-Holder.

Tariq Ghani Mansoori for Objector.

2008 M L D 914

[Karachi]

Before Agha Rafiq Ahmed Khan, J

KAMRAN AHMED ANSARI---Petitioner

Versus

Syeda MUNAZZA SHAHEEN and another---Respondents

Constitutional Petition No. S-471 of 2007, decided on 1st April, 2008.

West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5, Sched. & S.10(4)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dissolution of marriage on ground of khula--Family Court having dissolved the marriage of petitioner husband with respondent wife by way of khula in lieu of dower amount, petitioner had filed constitutional petition against judgment of the Family Court---Order passed by the Family Court had shown that petitioner did not appear in the Family Court and his counsel moved application for adjournment, which was dismissed---Since it was admitted that dower amount was not paid by the petitioner to respondent, she insisted for khula and marriage was dissolved under proviso to subsection (4) of S.10 of West Pakistan Family Courts Act, 1964---Respondent lady after dissolution of marriage having contracted marriage with someone else, petition had become infructuous---Family Court having rightly exercised its jurisdiction as provided in West Pakistan Family Courts Act, 1964, no illegality was found in impugned order passed by the Family Court---Constitutional petition was dismissed.

2007 CLC 505 and PLD 1993 Quetta 1 rel.

Mansoorul Haq Ansari for Petitioner.

Sardaruddin Qureshi for Respondent No.1.

2008 M L D 916

[Karachi]

Before Khawaja Naveed Ahmed, J

MUHAMMAD NOORULLAH KABIR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 454 of 2005, decided on 24th March, 2008.

Foreigners Act (XXXI of 1946)---

---Ss. 14(2) & 14-B---Foreigners Order, 1951, S.3(2)(a)---Appreciation of evidence---Deportation of accused---Accused was convicted and sentenced to undergo R.I. for six months with benefit of S.382-B Cr.P.C.---Trial Court, while deciding the case, had mentioned in the judgment that after completion of sentence accused should be deported from Pakistan to his parent country (Bangladesh)---Sentence of six months' R.I. awarded to accused had been completed, but accused was still in custody as he allegedly had another case under S.420 P.P.C. in respect of preparing forged documents---Serving of sentence by accused, would not serve the purpose because there was an order of deportation of accused and he would continue to remain in jail till arrangements for his deportation were made; he could not be released because for getting release, he had to acquire citizenship of Pakistan for which he needed proof which he could not produce in the court---Conviction order would always come in his way and it would not be possible for him to get the nationality/citizenship of Pakistan---Since accused had served the sentence awarded to him and in that case he had been detained just for want of deportation process to. be completed, order of deportation was set aside, in circumstances---Law had to take its own course and accused, if not required in. any other case, be released forthwith from jail.

Tahir v. State 2005 PCr.LJ 1183 and Alam v. The State 2007 YLR 1897 ref.

Muhammad Ali Waris for the Appellant.

Nemo for the State.

2008 M L D 922

[Karachi]

Before Dr. Qamaruddin Bohra, J

Messrs BROOKE BOND PAKISTAN LTD.---Plaintiff

Versus

MUHAMMAD SHAFIQ and another---Defendants

Suit No.419 of 1994, and C.M.As. Nos. 2473 & 2474 of 2007, decided on 26th March, 2008.

Civil Procedure Code (V of 1908)---

----O.IX, R.13---Limitation Act (IX of 1908), S.5---Ex parte decree, setting aside of---Condonation of delay---Defendant deliberately remained absent from Trial Court and did not contact his counsel who had been appearing for about ten years in the case and did not file any written statement---After discharging of power of counsel of defendant, fresh notice was served on him, whereafter two counsel filed Vakalatnama but they did not appear---Trial Court passed decree against the defendant---Validity---Suit was rightly decreed against defendant and judgment and decree could not be said to be ex parte against defendant, who had not produced any evidence whereby his long absence could be condoned---Delay of each and every day was to be explained for getting benefit of S.5 of Limitation Act, 1908---High Court declined to set aside judgment and decree passed against defendant---Application was dismissed in circumstances.

Naveed-ul-Haq for Plaintiff.

Abdul Karim Siddiqui for Defendant No.1.

2008 M L D 926

[Karachi]

Before Ghulam Rabbani, J

NISAR-Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.375 of 2004, decided on 3rd September, 2004.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.324 & 337-F(ii)/34---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Bail, grant of---Accused was not named in the F.I.R. and was in custody since long---Co-accused who was nominated in the F.I.R. had already been granted bail vide order passed by the Trial Court---No proceedings under S.87 or 88, Cr.P.C. had been taken against the accused---State Counsel had stated that accused could be released on bail considering the rule of consistency---Accused was admitted to bail, in circumstances.

Rab Nawaz v. State PLD 1996 Lahore 1240; Nadeem v. State PLD 1996 Kar. 40 and Dosoo v. State 2003 PCr.LJ 933 ref.

Zulfiqar Ali Sangi for Applicant.

Ghulam Sarwar Korai for the State.

2008 M L D 930

[Karachi]

Before Mrs. Yasmin Abbasey, J

KHADIM HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-424 of 2007, decided on 27th August, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.186---Bail, grant of---Two co-accused had already been granted bail---Allegation against accused was that he had attempted to snatch the rifle from the police personnel who was on duty and as such he had interrupted him in performance of his official duty, but that point required consideration---No private witness said to be found at spot, had been cited as witness---Accused was enlarged on bail, in circumstances.

Hidayatullah Abbasi for Applicant.

Muhammad Azeem Panhwar State Counsel.

2008 M L D 939

[Karachi]

Before Khawaja Naveed Ahmed, J

Malik ZAHID ATTIQUE through Attorney---Petitioner

Versus

FARHANA AMJAD and 3 others---Respondents

Constitutional Petition No.S-126 and C.M.A. No. 1268 of 2007, decided on 4th August, 2008

Sindh Rented Premises Ordinance (XVII of 1979)---

----S. 21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dismissal of appeal as well as restoration application due to absence of counsel for appellant---First appeal as well as application for restoration of appeal having been dismissed, petitioner had filed constitutional petition against such dismissal---Counsel for the petitioner, who was a senior lawyer of the High Court, had sworn his personal affidavit and had explained that he was busy in the High Court when the case was called in the Appellate Court below, however his junior had remained in the Appellate Court, which had shown his bona fide---Held, cases should be decided on merits---Procedural law, no doubt, plays a vital role in handling and streamlining the matters in a proper and disciplined way, same, however should not prevail upon the justice---Litigants come to the court for getting justice and not for learning the court procedure or discipline---Courts no doubt should be strict in fallowing the procedure as well as maintaining the discipline, but not at the cost of' justice---Foremost and primary duty of the court was to dispense justice based on facts, law and on the principle of equity---Petitioner having not been heard by the Appellate Court on merits of the case, impugned orders were set aside and case was remanded to Appellate Court to head the Advocates of both sides and decide matter on merits within specified period in order to avoid further delay.

Federation of Pakistan v. Muhammad Hanif 1981 CLC 130; Suhail Printing Press v. Aley Eba Ziadi 2005 SCMR 882; N.Q. Industries v. Bapai Kaikhusro PLD 1968 Kar. 589 and Zulfiqar Ali v. Lal Din 1974 SCMR 162 rel.

S.A. Jalib Ch for Petitioner.

Naeem Sulpman for Respondent No.1.

2008 M L D 978

[Karachi]

Before Dr. Rana Muhammad Shamim and Farukh Zia Shaikh, JJ

THE STATE through Investigating Officer---Appellant

Versus

MANSOOR AHMED---Respondent

Criminal Acquittal Appeal No. D-55 of 2000, and Criminal Revision Application No. 66 of 2001 decided on 26th March, 2008.

Control of Narcotic Substances Act (XXV of 1997)---

----Ss.9(c) & 14---Criminal Procedure Code (V of 1898), Ss. 417 & 435---Appeal against acquittal and revision for enhancement of sentence---Accused, was acquitted while his co-accused was convicted for the offence under S.14 of Control of Narcotic Substances Act, 1997 to suffer R.I. for two years and fine---Appeal and revision had been filed with a prayer that accused who had been acquitted be also convicted and that sentence awarded to co-accused be enhanced---Crux of matter was that charge against accused was framed under S.9(c) of Control of Narcotic Substances Act, 1997, which had provided punishment for death or imprisonment for life, while co-accused had been convicted and sentenced for two years convicted under S.14 of the said Ordinance---Flaw/ambiguity appeared in the impugned judgment whereby co-accused had been convicted under S.14 of Control of Narcotic Substances Act, 1997, though the charge proved against him was under S.9(c) of said Act---Revision and acquittal appeal were allowed and case was remanded to the Trial Court for de novo consideration and to decide the matter on its own merits according to law.

Muhammad Aslam Roshan S.P.P. for Appellant.

Nemo for Respondent.

Date of hearing: 26th March, 2008.

2008 M L D 993

[Karachi]

Before Muhammad Afzal Soomro, C J

Mst. SHAHIDA KHANUM---Plaintiff

Versus

PROVINCE OF SINDH through Secretary Land Utilization and 4 others---Defendants

Civil Suit No. 121 and C.M.As. Nos. 4028 and 4029 of 2008, decided on 5th May, 2008.

(a) Transfer of Property Act (IV of 1882)---

----S. 41---Specific Relief Act (I of 1877), Ss.42 & 39---Suit for declaration and cancellation of document---When the purchaser of property had acted in good faith by taking all reasonable care to ascertain title of his vendor who was continuously shown in revenue record to be the owner of land in question, such transaction, would be protected under S.41, Transfer of Property Act, 1882.

PLD 1987 Lah. 4 fol.

(b) Administration of justice---

----Tendency in society to convert civil litigation into criminal proceedings, deprecated by High Court.

2007 YLR 3321 ref.

(c) Acquiescence---

----Cause to be initiated within reasonable time and unreasonable delay will amount to acquiescence.

Hakim Muhammad Buta and others v. Habib Ahmed and others PLD 1985 SC 153; PLD 2003 SC 628 and Adeshir Cowasjee and 4 others v. Clifton Cantonment Board and others 1998 MLD 1818 ref.

(d) Civil Procedure Code (V of 1908)---

----O. VII, R.11---Limitation Act (IX of 1908), S.3--Plaint, rejection of---Suit was prima facie barred by limitation---Application for rejection of plaint was allowed.

Adeshir Cowasjee and 4 others v. Clifton Cantonment Board and others 1998 MLD 1818; 2000 SCMR 53; Burmah Eastern Ltd. v. Burmah Eastern Employees' Union and others PLD 1967 Dacca 190 and 2007 CLC 1821 ref.

Muhammad Imran Butt for Defendant No.3.

2008 M L D 1018

[Karachi]

Before Arshad Noor Khan, J

Sardar MUHAMMAD ASIF---Applicant

Versus

THE STATE---Respondent

Criminal Revision No. 31 of 2008, decided on 30th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 514--Penal Code (XLV of 1860), Ss.419, 420, 468, 471 & 109---Forfeiture of bond---Applicant stood surety for accused, memo of surety produced by applicant was accepted by the court below and after execution of bond, custody of accused was handed over to him with direction to produce accused on each and every date of hearing in court--Surety was duty bound to cause attendance of accused in court on each and every date of hearing and failure of accused to attend the court would react on the surety---If despite of notice served on surety by the court, he failed to produce accused in court, court would be within its right and power to forfeit surety bond under S.514, Cr.P.C. and further impose fine thereby directing surety to deposit full quantum of surety bond---Accused had frequently jumped bail with intention that reduced quantum of the surety bond would be deposited, which tantamount to his acquittal from the main case---If accused jumped bail, the surety was not entitled to any leniency and full amount of surety bond must be forfeited by the court, without showing any leniency to the surety.

Muhammad Rafique v. The State 2001 PCr.LJ 1599; Gul Muhammad v. The State 2005 YLR 1602; Sher Ali and another v. The State 2000 PCr.LJ 94 ref.

Zeeshan Kazmi v. The State PLD 1997 SC 267; Jamroze Khan v. The State 1990 SCMR 1313; Saffar Khan v. The State 1997 SCMR 1983; Abdul Bari v. Malik Amir Jan and others PLD 1998 SC 50 and Muhammad Safeer v. Faqir Khan others 2000 SCMR 312 rel.

Abdul Jabar Korai for Applicant.

Nemo of Respondent.

2008 M L D 1025

[Karachi]

Before Munib Ahmad Khan, J

ALI RAZA and 3 others---Petitioners

Versus

KHADIM HUSSAIN alias TALIB HUSSAIN and 2 others---Respondents

C.P. No.S-101 of 2007, decided on 22nd April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 190---Words "cognizance" and "trial" as used in S. 190, Cr.P.C.---Scope.

There are two words used in section 190, Cr.P.C., one is 'cognizance' and the other is 'trial'. The Magistrate for the purpose of taking cognizance can examine the material before him. The recoding of statements and taking evidence are two different things. The Magistrate, while taking cognizance, has to record some statements, and to scrutinize the allegation, which is permitted, keeping in view the gist and requirement of S.190, Cr.P.C., otherwise, the very purpose of Magistrate to have a check on the Police Report will fail. As far as the trial is concerned, the matter, after satisfaction of the Magistrate, is sent to the Sessions Judge, who records evidence with an opportunity to the parties to cross-examine the witnesses in detail and to place certain documents as exhibits and to challenge them .in accordance with law.

Ishrat Ali Lohar.for Petitioners.

Muhammad Qasim Rustamani holding brief for Muhammad Ali Rind, learned counsel for Respondents Nos. 1 and 2.

Mumtaz Alam Leghari, Assistant A.-G. for the State.

2008 M L D 1034

[Karachi]

Before Dr. Rana Muhammad Shamim and Farukh Zia G. Shaikh, JJ

ABDULLAH alias PAPOO and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. D-50 of 2005, decided on 13th March, 2008.

Penal Code (XLV of 1860)---

----S. 302/34---Appreciation of evidence---Benefit of doubt---Case of prosecution was full of contradictions which had created serious doubts---No case property was exhibited in the court and shown to the witnesses for identification---Such omission was not of much help to prosecution---To record conviction, there must be a legal evidence available on record---Crime was to be proved through cogent, tangible, direct and strong evidence in court---Prosecution had to stand on its own legs and prove its case beyond reasonable doubt---Evidence brought on record of .the case must be unambiguous and inspiring-confidence---Courts were bound by law to administer justice according to law and not according to their moral conviction, however, strong that might be---Eye-witnesses could not be relied upon, because it could not be definitely said that they were nearby present at the spot---Had they been present at the spot such discrepancies, lapses and material contradictions could not have occurred---No corroborative evidence was available in the case---Recovery of lathies allegedly used in occurrence was also doubtful as about such recovery, witnesses who were present there had not said that same were recovered and sealed at the spot---Recovered crime lathies had not been shown to the witnesses at the trial---No explanation was offered by the prosecution as to why the blood-stained clothes of deceased were not recovered at the time of post-mortem in hospital and why the mashirnama was not prepared at the spot; how and why the blood-stained clothes came in possession of complainant---Eye-witnesses present in the playground were not examined by the Investigating Officer and were not produced as prosecution witnesses during trial---Inference could be drawn that the incident had not taken place as set-up in the complaint---No convincing evidence was forthcoming to show as to who committed the offence---Co-accused having been acquitted, accused were also entitled to benefit of doubt on the principle of equality---Benefit of doubt must go to accused persons---Prosecution having failed to prove its case against accused persons beyond doubt, impugned judgment of the Trial Court was set aside and accused were acquitted giving them benefit of doubt.

Imran Ashraf and others v. The State 2001 SCMR 424; Mehraban v. Abdul Hameed alias Majeed Hameedullah and others PLD 1983 SC 117; Paryai and another v. The State 1978 PCr.LJ 380; Riaz Ahmed v. The State 1986 SCMR 1460; Allah Wadhayo and another v. The State 2001 SCMR 25; Munir Ahmed alias Muni v. The State 2001 SCMR 56; Gul Muhammad alias Guloo v. The State 2004 YLR 216; Rehmatullah v. Muhammad Iqbal and others 2006 SCMR 1517; Attaullah alias Qasim v. The State PLD 2006 Karachi 206; Miran Bux v. Niaz and others 1975 SCMR 337; Mohammad Aslam and others v. The State 1988 SCMR 940; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Ashiq Hussain v. The State 1993 SCMR 417 State of Islamic Republic of Pakistan through DAG for Pakistan v. Kenneth Marshal and 2 others 2005 SCMR 594; Muhammad Sharif and others v. The State 1983 PCr.LJ 1067; Khairuddin and others v. The State 1974 PCr.LJ 219; Budho v. The State 1973 PCr.LJ 395 and Iqbal and another v. The State 1985 PCr.LJ 286 rel.

Mushtaque Hussain Shah and Miss Rizwana Jabeen Siddiqui for Appellants.

Muhammad Mehmood S. Khan Yousfi A.A.-G.

2008 M L D 1047

[Karachi]

Before Munib Ahmad Khan, J

SAJAN---Applicant

Versus

NABI BUX and another---Respondents

Criminal Revision Application No.S-69 of 2007, and M.A. No. 1308 of 2008, decided on 22nd April, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 561-A---Penal Code (XLV of 1860), S.337-A(ii)---Bail, grant of---Further inquiry---Bail earlier granted to applicant/accused having been cancelled, applicant had filed application against said cancellation---Scope---Strong reasons were required to review order granting bail---Trial Court cancelling bail had only relied upon the alleged threat which was common in such types of cases---Injury attributed to applicant fell within the meaning of S.337-A(ii), P.P.C. provided five years punishment---Such injury according to medical certificate was only skin deep---Case was pending before the Trial Court and was not being proceeded due to pendency of that bail application---Trial Court was directed by High Court to expedite the matter and complete the proceedings as early as possible---Action of applicant/ accused did not fall within the prohibitory clause of S.497, Cr.P.C. and his case required further inquiry---Impugned order was set aside and applicant was allowed bail in terms of order earlier passed by the Trial Court in respect of bail application.

Shafi Muhammad Memon, for Applicant.

Hussain Bux Solangi for Respondent No.1.

Mashooq Ali Samo, Assistant, A.-G.

2008 M L D 1051

[Karachi]

Before Khawaja Naveed Ahmed, J

EIJAZ ALAM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 86 of 2008, decided on 16th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of---Counsel for accused had filed along with bail application an affidavit of the complainant according, to which complainant had amicably patched-up with accused and had forgiven him; and that if accused was granted bail he would have no objection---State counsel did not oppose the bail application---Accused was granted bail, in circumstances.

Aamir Mansoor Qureshi for Applicant.

Kausar Naz, for the State.

2008 M L D 1056

[Karachi]

Before Mrs. Yasmin Abbasey, J

SHAFIQUE MUKHTAR alias GUDOO---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 245 of 2008, decided on 28th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 380, 411 & 436---Bail, grant of---Further inquiry---Person to whom responsibility of looking after the family of deceased was given, instead of lodging F.I.R. on the very day waited for return of complainant from other district for lodging the F.I.R.---Indefinite facts appeared on record and at that stage in view of those indefinite evidence, no conclusion could be drawn---Case, in circumstances was of further inquiry---Accused was granted bail, in circumstances.

Aamir Mansoob Qureshi for Applicant.

Agha Zafir, A.A.-G.

2008 M L D 1061

[Karachi]

Before Mrs. Yasmin Abbasey, J

AHMED HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1045 of 2007, decided on 26th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9, 12, 13, 14, 15, 19 & 37---Bail, grant of---Challan was submitted after about 20 days from occurrence and charge was framed after lapse of four years of incident---No progress was made in the trial of case---Accused could not be kept behind the bars for an indefinite period for no fault of his own in delay of the trial of case---Accused was granted bail, in circumstances.

Aamir Mansoob Qureshi for Applicant.

S. Ashfaq Hussain Rizvi, learned Spl. Prosecutor ANF.

2008 M L D 1068

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mehmood Alam Rizvi, JJ

Messrs CLIMAX PRINTERS through Proprietor and another---Appellants

Versus

Messrs HABIB BANK LTD. and 5 others---Respondents

Ist Appeals Nos. 68 to 73 and 79 of 2006, decided on 7th March, 1979, 2008.

(a) Sindh Rented Premises Ordinance (XVII of 1979)---

----S.15---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss. 15(6) & 19---Money decree, execution of---Auction of mortgaged property in possession of tenant---Confirmation of auction in favour of auction-purchaser---Order of Banking Court directing tenant to deliver possession of such property to auction-purchaser---Validity----Statutory tenant had a right to remain on premises and no one could eject/dispossess him without due course of law---Banking Court, in absence of explicit provision, could not put auction-purchaser into possession of such property---Legislative intent could not be construed to deprive tenant of his right to occupy property guaranteed under law in presence of documentary evidence confirming his status---High Court set aside impugned order in circumstances.

Mst. Zarina Khawaja and others v. Agha Mehboob Shah PLD 1988 SC 190; Mst. Mubarak Shah v. Banking Court No. III 2005 CLD 515 and M. Ghani v. M.A. Mullick and 3 others 1973 SCMR 90 rel.

(b) Sindh Rented Premises Ordinance'(XVII of 1979)---

----S.15---Statutory tenant, right of---Scope---Such tenant had a right to remain on premises and no one could dispossess/eject him without due course of law.

Mst. Mubarak Shah v. Banking Court No. III 2005 CLD 515 and M. Ghani v. M.A. Mullick and 3 others 1973 SCMR 90 rel.

Raja Qasit Nawaz for Appellants.

Sadaruddin Huda Respondent No.1.

Muhammad Yaseen Azad for Respondent No.5.

Date of hearing: 15th February, 2008.

2008 M L D 1074

[Karachi]

Before Dr. Rana Muhammad Shamim, J

Mst. SAIMA and another---Petitioners

Versus

SHAHZAD RIAZ and 2 others---Respondents

C.P. No. S-574 of 2007, decided on 16th January, 2008.

Islamic law---

----Hizanat---Welfare of minors---Right of father to claim custody of minor son is not absolute, welfare of minor is always a paramount consideration---Mother's lap is the first place of education where the infant learns and knows her/his mother and even otherwise the affiliation of child with mother is more than that of father---High Court, in the present case, enquired from the children, two of them were grown up---They were not willing to leave their mother at any cost and they were emotionally attached to her due to love and care they were getting from her---Court directed that custody of minors would remain with the mother; father would be allowed to meet with his children as per directions of the Trial Court---Mother was also directed not to leave the jurisdiction of the High Court till disposal of suit pending before the Guardian Judge---Constitution of Pakistan (1973), Art.199.

Muhammad Aslam v. Additional District Judge 2004 CLC 160; Mst. Firdous Iqbal v. Shifaat Ali and others 2000 SCMR 838; Mehtab Mirza v. Mst. Shazia Mansoor 2005 MLD 256; Sardar Hussain and others v. Mst. Parveen Umer PLD 2004 SC 357 and Muhammad Naseer Humayoun v. Mst. Syada Ummatal Khabir 1987 SCMR 174 ref.

Mst. Rubia Jilani v. Raja Zahoor Akhtar 1996 CLC 1603; Mst. Mumtaz Begum v. Karamat Hussain PLD 1981 AJK 4 and Dr. Ruqia Shaukat v. Additional District and Sessions Judge 2003 CLC 1310 distinguished.

K.A. Wahab for Petitioners.

Kh. Shamsul Islam for Respondents.

2008 M L D 1083

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mehmood Alam Rizvi, JJ

ZAFAR IQBAL---Petitioner

Versus

THE STATE through National Accountability Bureau---Respondent

Constitutional Petition No.D-975 and Reference No.18 of 2007, decided on 22nd April, 2008.

(a) Criminal Procedure Code (V of 1898)---

----Ss. 497/498---Bail, grant or refusal of---Deeper appreciation of evidence not permissible at bail stage.

(b) Criminal Procedure Code (V of 1898)---

----S. 497---Bail, grant or refusal of---Reliance of prosecution upon statement/opinion of witnesses---Validity---Such opinion would not be binding upon Court and could not be appreciated, unless material upon which same was based was produced before Trial Court.

Shafi Muhammad for Petitioner.

Ch. Muhammad Iqbal, A.D.P.G. for NAB.

Date of hearing: 17th April, 2008.

2008 M L D 1090

[Karachi]

Before Dr. Rana Muhammad Shamim and Farukh Zia G. Shaikh, JJ

ATTA HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeals Nos.124, 11 and 125 of 2004, decided on 17th April, 2008.

Penal Code (XLV of 1860)---

----S. 302---West Pakistan Arms Ordinance (XX of 1965), S.13(e)---Juvenile Justice System Ordinance (XXII of 2000), S.12---Appreciation of evidence---Sentence, reduction in---Mitigating circumstance---Report of Medical Board showed that accused was hardly between 14 to 16 years of age at the time of commission of offence---Occurrence was the result of an abusive language and hot words exchanged between the complainant, his deceased brother and accused over some amount---Offence of murder committed by accused in such situation was considered as a mitigating circumstance for withholding the penalty of death---Appeal was dismissed, conviction was maintained, sentence of death awarded to accused, however, was altered to imprisonment for life---Benefit of S.382-B, Cr.P.C. was also extended to accused---Conviction of accused under S.13(e) of West Pakistan Arms Ordinance, 1965 was maintained.

Abdul Khaliq v. The State 1989 SCMR 2002; Muhammad Akram v. The State 1999 SCMR 52 and Imtiaz Ahmed alias Kaji and others v. The State 2008 PCr.LJ 441 ref.

Sher Muhammad Shar for Appellant.

Muhammad Mehmood S. Khan Yousafi A.A.-G. for The State.

Sher Muhammad K. Shaikh, DAG as Amicus Curiae.

Date of hearing: 17th April, 2008.

2008 M L D 1096

[Karachi]

Before Munib Ahmed Khan, J

ABDUL GHAFFAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. S-125 and M.A. No.286 of 2008, decided on 21st April 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 302, 324, 337-A(i), 337-F(i), 337-H(iii), 504, 114, 147, 148 & 149---Bail, grant of---Common intention---Member of unlawful assembly armed with deadly weapons---Role of accused---Distinction---Plea raised by accused was that only minor fire-arm injury on non-vital part of body of injured prosecution witness was attributed to him---Effect---Factual narration in F.I.R. showed common intention on the part of accused in which one person died and other 4-5 persons were injured---Accused was part of association of the persons, who gathered for one and the same purpose, therefore, plea of causing minor injury was not sufficient---Each and every person of the gathering was individually and collectively liable for the harm caused to opposite party---Accused allegedly fired from his pistol and injured prosecution witness by hitting his left hand and it could not be said that exact intention of accused was to cause injury on the hand of prosecution witness---Accused fired from his dangerous weapon towards injured prosecution witness and bullet could hit his main organ as well but it was luck of the injured that he escaped and sustained injury on his left hand---Common intention having appeared, case of accused fell within prohibitory clause of S.497, Cr.P.C. as one person was murdered and other 4-5 persons were injured---Bail was refused in circumstances.

Salahuddin Panhwar for Applicant.

Anwar H. Ansari for the State.

2008 M L D 1107

[Karachi]

Before Munib Ahmad Khan, J

NAFEES IQBAL---Applicant

Versus

THE STATE-.-Respondent

Criminal Revision Application No. 1 of 2008, decided on 21st January, 2008.

Criminal Procedure Code (V of 1898)---

---Ss. 516-A, 517 & 561-A---Penal Code (XLV of 1860), S.392/34---Custody and disposal of case property pending trial---Applicant whose car was stolen and F.I.R. was registered at Police Station, had submitted that when he made application to the Trial Court, he was required to furnish a surety and in lieu thereof registration of vehicle in question was retained and vehicle had been released---Applicant had submitted that he was ready to give an undertaking that he would produce the subject vehicle as and when required---State counsel had added that direction be issued to the concerned registering Authority of motor vehicles through the Trial Court and documents of vehicle be retained---Held, purpose of binding the applicant to produce vehicle in dispute, could be achieved after a direction was issued to the concerned Registering Authority of vehicles to maintain status quo and not to transfer the said vehicle in the name of any person, while the undertaking of applicant be kept on record---When applicant had already suffered at the hands of criminal, he should not be burdened further and should not be treated like the criminal---Impugned order was set aside, with direction that applicant was to submit an undertaking and P. R. Bond before the Trial Court and said court was directed to return the documents and to issue directions to the concerned Registering Authority of motor vehicles not to transfer said vehicle in the name of any body till decision of the matter.

Aamir Mansoob Qureshi for Applicant.

Haji Abdul Majeed for the State.

2008 M L D 1112

[Karachi]

Before Khawaja Naveed Ahmed, J

MUHAMMAD ASIM MALIK---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.97 and 158 of 2008, decided on 28th March, 2008.

Criminal procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---Accused were in custody for last more than three years and case had not yet been concluded---No corroborative evidence was available except alleged confessional statements of accused---Was yet to be determined at trial as to whether the retracted confessions made by accused, were voluntary or not and it was further to be determined whether confession was inculpatory or exculpatory---Case being a fit one which required farther inquiry under S.497(2), Cr.P.C. regarding nature of confession and pendency of such inquiry, accused were admitted to bail, in circumstances.

Muhammad Ali v. The State 2008 PCr.LJ 87; Rohsan Bibi v. The State 2007 PCr.LJ 1792; Nazeer Ahmed v. The State PLJ 1977 Baghdad-ul-Jadid 23 (sic) and Muhammad Raheem v. The State PLD 2004 Kar. 564 ref.

Aamir Mansoob Qureshi for Applicant (in Criminal Bail Application.No.97 of 2008).

S. Jawaid Haider Kazmi for Applicant (in Criminal Bail Application No.158 of 2008).

S. Muhammad Ali for the State.

2008 M L D 1116

[Karachi]

Before Dr. Rana Muhammad Shamim, J

NAZEER AHMED and others---Applicants

Versus

COLLECTOR/SETTLEMENT OFFICER, KHAIRPUR and others---Respondents

Civil Revision Application No. 72 of 1987, decided on 29th February, 2008.

Civil Procedure Code (V of 1908)---

----S. 115---Specific Relief Act (I of 1877), Ss.27, 42 & 12---Revision---Suit for declaration, possession and mesne profits---Parties were litigating for the last about 37 years (since 1971) and the entire process had been completed except that the statement given by the counsel for respondents was said to be without the consent of the respondents---Such a cloud might shatter the entire exercise continuing for 37 years and again give a cause to keep the matter pending for an indefinite period, therefore, High Court, in all fairness to save the parties from such ordeal and in the interest of justice directed that respondents be given an opportunity to lead evidence on additional issue framed (in respect of alleged statement of the counsel) whereafter the Trial Court may decide the case on its merits in accordance with law.

A.M. Mobeen Khan for Applicants.

Amanullah Shaikh and Ahmed Ali Memon for Respondents.

Date of hearing: 29th February, 2008.

2008 M L D 1133

[Karachi]

Before Khawaja Naveed Ahmed, J

MUHAMMAD SALEEM and others---Applicants

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No.224 and M.As. Nos.4062 of 2006, 588 of 2007, decided on 27th November, 2007.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Quashing of order, application for---Order sought to be quashed was in accordance with law as per record, which did not need any interference by the High Court---Application for quashing of such order being not maintainable, was dismissed.

Amir Mansoob for the Complainant.

Asadullah Baloch for the State.

2008 M L D 1310

[Karachi]

Before Dr. Qamaruddin Bohra, J

MUREED FATIMA and 2 others---Plaintiffs

Versus

HOME SECRETARY, GOVERNMENT OF SINDH, KARACHI and others---Defendants

Suit No. 7/1239 of 2007, decided on 13th June, 2007.

Fatal Accidents Act (XIII of 1855)---

----S.1---Fatal accident---Court fee---Office objection---Plea raised by plaintiff was that death was caused due to negligent firing of police and suit was covered under Fatal Accidents Act, 1855, hence no court-fee was required to be fixed---Office raised objection to the fact that according to averments made in plaint, death was caused in police encounter, therefore, court-fee was required to be fixed---Validity---Question as to whether deceased died due to wrongful and negligent firing of police officials, required recording of evidence, which could not be decided at the stage of filing of suit, without recording of evidence---Plain reading of plaint showed that it was a case of compensation under the provisions of Fatal Accidents Act, 1855---Plaintiff stated in his plaint that no court-fee had to be deposited as the suit was under the provisions of Fatal Accidents Act, 1855, which was exempted from court-fee---High Court directed the office to register the suit and issue summons to defendants---Objection was over-ruled in circumstances.

Government of N.-W.F.P. v. Saidur Rehman and another 2004 CLC 1682 and Adam Hussain and another v. Muhammad Ayub 1983 CLC 2054 ref.

Taza Gul Khattaq for Plaintiff.

2008 M L D 1327

[Karachi]

Before Khalid Ali Z. Qazi, J

MUMTAZ ALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Applicant No.590 of 2007, decided on 30th May, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302/201/34---Bail, grant of---Delay in trial---Accused was arrested on 24-2-2006 and he had been continuously in custody since then---Prosecution in support of its case had examined complainant and one prosecution witness---Complainant did not implicate accused in cross-examination---Effect---While looking at the hardship caused owing to inordinate delay in conclusion of trial, High Court had found it a fit case in which indulgence to accused must be demonstrated---Bail was granted to accused in circumstances.

Ghulam Abbas alias Abbasy v. The State PLD 2005 Kar. 255; Manzoor Khan v. The State 1972 SCMR 207; Mohammad Sadique v. Muhammad Shafi and another 1973 SCMR 212 and Ihrar Muhammad v. The State PLD 1974 SC 224 ref.

2003 MLD 19; AIR 1941 Sindh 186; AIR 1942 Calcutta 219; PLD 1955 Sindh 227 and 2000 SCMR 107 rel.

Aftab Ahmed Gorar for Applicant.

Naimatullah Bhurgi for the State.

2008 M L D 1333

[Karachi]

Before Muhammad Afzal Soomro, C. J. and Khawaja Naveed Ahmed, J

MIR MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 526 of 2005, decided on 14th April, 2008.

(a) Control of Narcotic Substances Act (XXV of 1997)---

----Ss. 9 (c) & 48---Appreciation of evidence---Recovery of 24 kilograms of Charas---Benefit of doubt---Raiding party as recovery witnesses---Effect---Accused was allegedly arrested from a room of hotel where he was statedly packing 24 kilograms of Charas keeping the door of room open---Trial Court convicted the accused and sentenced him for imprisonment for life---Validity---Investigating Officer, while conducting raid at hotel, did not cease register of hotel from which it could have been proved as to who was in possession of the room on the relevant date and at relevant time---Hotel was located at thickly-populated area and availability of independent witnesses at the time of raid was not difficult as admitted by prosecution witnesses---Investigating Officer did not make any effort to invite any citizen to act as Mushir in raiding party---Police constables were available outside the hotel but Investigating Officer had not even asked them to act as Mushir---Investigating Officer relied upon the testimony of his own two subordinates who always accompanied him---Major dent in prosecution case was caused by non-availability and non-appearance of the officer who was supervisor of the raiding party, who was not even cited as prosecution witness although he was the most senior and respectable person amongst the raiding party---Even on Court's call the said supervisor of raid did not attend the court and prosecution closed its side without examining the supervisor---Benefit of such type of conduct by prosecution agency always had gone to the accused---Plain reading of F.I.R., Mushirnama of recovery and evidence of three witnesses who were the employees of Anti Narcotic Force did not inspire confidence in prosecution case---High Court declined to believe that accused was packing Charas in a hotel room, which was a public place by keeping the door open---High Court set aside the -conviction and sentence awarded by Trial Court and accused was acquitted of the charge---Appeal was allowed in circumstances.

Khalil Ahmed v. The State PLD 2008, Kar. Page. 8; Sawar Jan v. The State 2004 PCr.LJ 1224; Ghous Bukhsh alias Ghousa v. The State 2000 MLD 618 and Wazir Muhammad v. The State PLD 1992 SCMR 1134 ref.

Fida Jan v. The State 2001 SCMR 36 and Muhammad Hanif v. the State 2003 SCMR 1237 distinguished.

(b) Control of Narcotic Substances Act (XXV of 1997)---

----S.9---Qanun-e-Shahadat (10 of 1984), Arts.117 & 120---Guilt of accused---Burden of proof---Principle---Even in case of narcotics the initial burden to prove the guilt of accused is always upon the prosecution.

(c) Control of Narcotic Substances Act (XXV of 1997)---

---S.9---Recovery of narcotics---Evidence of officials---Principle---No doubt evidence -of official witnesses is admissible but it does not mean that they are reliable also---Every case is to be seen in the light of facts of its own.

(d) Control of Narcotic Substances Act (XXV of 1997)---

---S.9---Benefit of doubt---Scope---One single circumstance throwing doubt is sufficient to discard prosecution case.

Amir Mansoob Qureshi for Appellant.

Syed Ashfaq Hussain Riazi, Special Prosecutor ANF.

Date of hearing: Nil.

2008 M L D 1351

[Karachi]

Before Dr. Rana Muhammad Shamim and Ghulam Dastagir A. Shahani, JJ

ALI MUHAMMAD---Petitioners

Versus

TALUKA MUNICIPAL ADMINISTRATION CHAMBER through Taluka Nazim and 11 others---Respondents

Civil Petition Nos.D-183 and 1217 of 2008, decided on 27th June, 2008.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Award of cattle piri contract by Taluka Municipal Administration to the petitioner on payment of contract money by regular instalments---Petitioner was bound to pay instalments as per terms and conditions of the agreement and in case of any violation, contract was to be cancelled, which, on violation by the petitioner, on due notice to him, was cancelled by the Taluka Municipal Administration---Not a single document was brought on record in order to show that alleged payment was made and there was only word against word from the side of petitioner which could not be believed without providing particulars including date and time duly witnessed by somebody else, which was missing in his case---Averments in the constitutional petition had raised complicated questions and allegation of mala fide which could not be resolved in the constitutional petition as framing of issues and recording of evidence was required which only the civil court could undertake being court of ultimate jurisdiction--No violation or illegality in the action of Taluka was pointed out by the petitioner and without due payments petitioner could not be protected because the very original act of the petitioner seemed to be illegal and without jurisdiction--High Court declined interference---Constitutional petition was dismissed.

Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356 and Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another PLD 1970 180 ref.

Kh. Azizullah, for Petitioner.

Masood Ghani and Abbas Ali, Addl. A.-G. for Respondents.

2008 M L D 1366

[Karachi]

Before Ghulam Dastagir A. Shahani, J

Nawab MUHAMMAD JAHANGIR KHANJI---Plaintiff

Versus

Messrs ABEEDA ENTERPRISES through Director---Defendants

Suit No. 672 and C.M.A. No. 3949 of 2006, decided on 12th May, 2008.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.1, 2 & S.151---Easements Act (V of 1882), Ss.32 & 35---Specific Relief Act (I of 1877), Ss.42 & 55---Application under O.XXXIX, Rr.1, 2 & S.151, C.P.C. for grant of injunction in suit for declaration and injunction and protection of easement rights---Prayer of the plaintiff was that defendants be restrained directly or indirectly from raising construction of a multistoreyed high-rise building at a specified plot so also creating third party interest by selling, allotting, booking and transferring of any portion or flat and apartment to anybody else on the said plot till final disposal of the suit---Plaintiff himself had admitted that questioned construction work to some extent had been completed with permission/approval from all the relevant authorities---Several other buildings located at the rear of the plaintiff's property directly adjacent to the building in question, on a corner plot, also existed---Main entrance of the building in question was not facing the plaintiff's property---Held, after admission of the plaintiff no further evidence prima facie, was required and matter would naturally take sufficient time to be decided and to establish the right of easement, and violation, if any, was yet to be proved by the parties through evidence---Material available on record had revealed that act had already been done and thus injunction could not be granted in circumstances---All such facts favoured the defendants and presently the plaintiff had no case nor would he inconvenient for him nor he would suffer any loss---On the contrary if injunction was granted, defendants would be deprived from their legal rights after usual sanctions from the competent forum/authority---Plaintiff in circumstances, was not entitled to relief for injunction.

Moin Azhar Siddiqui for Plaintiff.

Ali Mumtaz for Defendants Nos. 1 and 2.

Nemo for Defendants Nos. 3, 4 & 5.

2008 M L D 1373

[Karachi]

Before Khalid Ali Z. Qazi, J

MUHAMMAD AKHTAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 715 and M.As Nos. 2554 & 2544 of 2008, decided on 24th June, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S. 365-B---Bail, grant of---Nikkah, plea of---Medical Board reported abductee as 19/20 years of age and she stated in court that she, on her own free will, solemnized Nikah with the accused, who was his cousin---Abductee also stated before court that she was happily residing with her in-laws---Effect---Such was a case of further inquiry, as prosecution had fully supported the version of accused---Abductee was sui juris and she was fully entitled to enter into marriage with accused at her own free will in accordance with law---Bail was granted in circumstances.

Muhammad Zafar Ahmed for Applicant.

Raja Ali Asghar for'the Complainant.

Ms. Kausar Naz Naqvi for the State.

2008 M L D 1377

[Karachi]

Before Ghulam Dastagir A. Shahani, J

MUHAMMAD NAJEEB---Plaintiff

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence Pak Secretariat, Rawalpindi and 4 others ---Respondents

Civil Suit No.1388 C.M.As. No.9404, 8955 and 8956 of 2007, decided on 23rd June, 2008.

(a) Cantonments Act (II of 1924)---

----Ss. 15-B, 34, 272 & 273---Specific Relief Act (I of 1877), Ss.42 & 55---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Application under O.XXXIX, Rr. 1 & 2, C.P.C. read with S.55, Specific Relief Act, 1877 for grant of injunction in a suit for declaration, injunction and damages---Plaintiff, a member of Cantonment Board, who was denotified as such, had prayed to direct the Federation of Pakistan and the Cantonment Board to get the office of the plaintiff unlocked and hand over the same to the plaintiff and restrain the defendants directly or indirectly from taking an adverse action against the plaintiff, and not to disturb him in performance of his duty in his office situated in the premises of Cantonment Board Office and prayed further that legal action be taken against the Chief Executive Officer of the Board for having committed contempt of Court due to disobedience/violation of the order passed by the Court---Validity---Framing of issue and evidence was required in order to establish the case on merits---Allegations and denial in respect of complicated question namely whether plaintiff was holding any charge or office papers, as well as any office from which plaintiff was said to have been dispossessed were to be inquired into---At present stage plaintiff's word was not supported by a single document, which could prima facie, show that he had been dispossessed or any violation or disobedience had been made, for which, at the first instance, show-cause notice was to be issued and charge was to be framed and proceeded separately in accordance with law, as plaintiff had to disclose full particulars and to show particular incident, with particular date and time, witnessed by somebody else, as only on general allegations no body could be punished---Questions as to whether order passed by the authority in respect of removal of plaintiff and appointment of another person was legal, proper and in accordance with law; and whether order was based upon some reasons and whether order was passed after service of notice and providing an opportunity of being heard or not, or there was any mala fide on the part of defendants, all being complicated questions were to be decided on merits and required framing of issues and evidence---Plaintiff, in circumstances, had no case nor balance of convenience was in his favour nor he would suffer a loss, which could not be compensated in terms of money, as such applications for injunction and Contempt of Court against the Chief Executive Officer were dismissed.

Ghulam Hussain Baloch and others v. The Chairman NAB and others 2006 PCr.LJ 1185; S.M. Anwar Alvi and others v. Members, Board of Revenue (J-II) Lahore and another 2005 YLR 3324; Hassan Din and 9 others v. Member (Judicial-I) Board of Revenue, Punjab and 75 others 2005 YLR 1160; Basit Ai v. Additional Chief Secretary and 3 others 2005 YLR 1719; Royal Foreign Currency v. The Civil Aviation Authority and another 1998 CLC 374; Pakistan International Airlines Corporation v. Messrs Hazir (Pvt.) Limited and another PLD 1993 Kar. 190; Independent Media v. Ali Salewem and another 2006 CLD 97 and Messrs Universal Business Equipment (Pvt.) Ltd. v. Messrs Kokusai Commerce Inc. and others 1995 MLD 384 ref.

(b) Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr.1 & 2---Cantonments Act (II of 1924), Ss.15-B, 34, 272 & 273---Injunction, grant or refusal of---Requirements and principles---Scope of O.XXXIX, Rr.1 & 2, C.P.C.

Every case is to be decided on its own merits and plaintiff has to prove his own case and he cannot be benefited on the weakness of other side if any. So far grant and refusal of injunction application is concerned, firstly it is to be seen whether plaintiff has prima facie good case, secondly whether balance of convenience lies in favour of injunction and thirdly whether plaintiff would suffer irreparable loss if injunction is refused, as issuance of injunction is discretionary power of the Court. Order XXXIX, R.2, C.P.C, specifically provides for restraining the defendants, in any suit from committing a breach of contract or causing injury of any kind and plaintiff may at any time, after commencement of suit apply to the Court for temporary injunction and said rule related to grant of temporary injunction in a suit for injunction against the apprehended breach of contract or injury of any kind. With equitable remedy by way of injunction mandatory or interlocutory in nature is discretionary and never granted as a. matter of course as stated above. The plaintiff must satisfy that there is a serious issue to be decided, and Court has to consider whether balance of convenience lies in favour of grant of injunction or not, but court cannot judge merits of the case of respective parties. Any decision for justice however, will be taken at any stage of uncertainty about the parties' rights---Even otherwise injunction is never granted to establish new state of things, and from the stage which existed at the date when proceedings were initiated. On such satisfaction the Court will consider, whether Plaintiff if succeeded would be adequately compensated by an award of damages for the loss, if defendants continued to do, and if damages recoverable in law is an adequate remedy, and defendant has a financial position to pay them, no interlocutory order should be formally granted. However, manner of exercise of discretion depends upon the precise nature of the particular rights.?

Salahuddin Khan and 3 others v. Sultan-e-Rome and 10 others PLD 1973 Pesh 95 ref.

(c) Cantonments Act (II of 1924)---

---Ss. 272 & 273---Scope and application of Ss.272 & 273, Cantonments Act, 1924.?

Hamid Hussain v. Government of West Pakistan and others 1974 SCMR 356 and Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner Khairpur and another PLD 1970 SC 180 ref.

(d) General Clauses Act (X of 1897)---

----S. 24-A---Any authority or officer if empowered to make order or give any direction, such power is required to be exercised reasonably, fairly, justly, and for advancement of the purpose of enactment and giving reason for making such order and further that public functionaries have to decide controversy between parties with reasons.?

Shafi Muhammad for Plaintiff.

Khalid Javed for Defendant No.2.

Ashraf Ali Butt for Defendants Nos. 1, 3, 4 and 5.

2008 M L D 1396

[Karachi]

Before Dr. Qammaruddin Bohra, J

Malik FAYYAZ---Applicant

Versus

THE STATE---Respondent

Bail Application No. 498 of 2008, decided on 16th June, 2008.

(a) Criminal Procedure Code (V of 1898)---

---Ss. 498 & 561-A---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 48---High Court of Sindh Administrative Order dated 6th September, 2007---Bail---Single Judge of the High Court can hear the bail application in exercise of the original jurisdiction of the High Court under S.498, Cr.P.C.---Registrar, Sindh High Court, in consequence of such decision of the High Court issued an Administrative Order dated 6-9-2007 to the effect that "Hon'ble Chief Justice has been pleased to order that all the bail applications filed under S.498, Cr.P.C. read with S.48 of Control of Narcotic Substances Act, 1997 shall now be heard by a Single Bench of High Court instead of Division Bench".

Bail Application 660 of 2007 fol.

(b) Criminal Procedure Code (V of 1898)---

----S. 498---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 48---Bail, grant of---Further inquiry---Property in question had not been recovered from the applicant/accused and the evidence available with the prosecution was the statement of the co-accused that he purchased the property in question from the applicant/accused and the said co-accused had pleaded guilty and had been convicted---One of the Mashirs had been examined who had not supported the prosecution case and as such, the applicant/accused's case had become of further inquiry---Accused was admitted to bail in circumstances.

Shaukat Hayat and Syed Khalid Shah for Applicant.

Ashfaq Hussain Rizvi Special Prosecutor ANF.

Zubair Hashmi for the State.

2008 M L D 1403

[Karachi]

Before Ghulam Dastagir A. Shahani, J

SHAKAR DIN---Plaintiff

Versus

PROVINCIAL GOVERNMENT OF SINDH through the Chief Secretary Sindh, Karachi

and 7 others---Defendants

Suit No. 536 C.M.A. Nos. 9185, 5015 of 2006 and C.M.A. No. 110 of 2007, decided on 18th April, 2008.

Civil Procedure Code (V of 1908)---

----O. VII, R.11---Specific Relief Act (I of 1877), Ss.42 & 55---Rejection of plaint---Scope---Plaintiff, in the present case was a licensee for a particular period, but same was not extended, as no fresh order had been produced in respect of extension---Plaintiff, as such, had no right, title and legal character, locus standi and cause of action, for filing the present suit for declaration and injunction, even on a particular date of dispossession---No fruitful result would be achieved even if matter proceeded further, as damages could not be claimed, because plaintiff was not in possession on a particular date, as such application moved under O.VII, R.11, C.P.C. was allowed.

KMC v. Moosa M. Adam and others PLD 1972 Kar. 571 distinguished.

Shahab Sarki for Plaintiff.

Ahmed Prizada, Addl. A.G. for Defendants Nos. 1 to 3.

Salahuddin for Defendants Nos. 4 to 7.

Tahawar Ali Khan for Defendants Nos. 11 to 14.

Date of hearing: 25th March, 2008.

2008 M L D 1410

[Karachi]

Before Dr. Qammaruddin Bohra, J

MUHAMMAD RASHID---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 668 of 2008, decided on 20th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497-Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---Main accused, as per the F.I.R. had fired on the eyes of deceased and the said injury caused his death---Fire-arm was recovered from the said main accused and star witnesses had implicated him in their statements under S.161, Cr.P.C. and S.164, Cr.P.C.---Complainant, who had lodged the report on the information, was not, an eye-witness of the incident---Witnesses had not charged the applicant/ accused for firing or his being armed with T.T. Pistol; they only stated that he was present with the main accused---Investigating Officer had mentioned in the Challan that there was no evidence against the applicant/accused except that he had been challaned due to his presence at the spot treating same indicative of common intention---Validity--Common intention always bore out from the actions---Applicant/accused was not attributed any offence and there was no charge of possessing mens rea against him, from the prosecution side., as such, the case of applicant/accused was of further inquiry---Accused was admitted to bail in circumstances.

Shamsul Hadi for Applicant.

Saleem Akhtar, Addl. Prosecutor General Sindh.

Ms. Afsheen Aman, State Counsel.

2008 M L D 1413

[Karachi]

Before Khawaja Naveed Ahmed, J

Mst. SHAHEEN TARIQ---Plaintiff

Versus

AMAL DEEN KHAN and others---Respondents

Civil Suit No. 1517 of 2006, decided on 21st January, 2008.

Fatal Accident Act (XIII of 1855)---

----S.1---Penal Code (XLV of 1860), Ss. 318 & 323---Death due to rash and negligent driving of truck---Compensation, assessment of---Ex parte proof---Unchallenged affidavit-in-evidence of plaintiff along with statement of claim in support of her claim in plaint---Plaintiff reduced her claim from Rs.1,10,50,000 to Rs.40,45,000 as per principles laid down by superior Courts---High Court decreed suit to the extent of Rs.40,45,000 with interest @ 15% from date of decree along with cost of suit with observations that out of decretal amount, 50% share of children of deceased would be deposited with Nazir, who would invest same in any profitable scheme and would give interests thereof to widow for maintenance of children and their school fees till they attained age of majority, while 25% would be given to widow, and remaining 25% would be given to parents of deceased, if such amount was recovered during their lifetime.

Mufti Muhammad Bashir and Arshad Jamal for Plaintiff.

Date of hearing: 21st January, 2008.

2008 M L D 1419

[Karachi]

Before Khawaja Naveed Ahmed and Khalid Ali Z. Qazi, JJ

FAROOQ AHMED HASHMI---Petitioner

Versus

NAB (SINDH) through Director General and another---Respondents

Constitutional Petition No.D-2372 of 2007, decided on 29th January, 2008.

National Accountability Ordinance (XVIII of 1999)---

----S. 9---Constitution of Pakistan (1973), Art.199---Constitutional petition---Bail, grant of---Allegation of corruption and corrupt practice---Accused (petitioner) had never. held any post throughout his career in government service through which he could use his discretion or ask for bribe 'from any one or somebody would have bribed him for taking any favourable decision from him---Accused, in fact, had never held any decision making post during the tenure of his service---Reference filed by the NAB against the accused revealed that accused was still working at the age of 70 years in the same department on contract basis---Had he been a corrupt person there would have been very little chance of his re­employment---Inference, in such a case could be drawn that a man who was doing the job even 10 years after his retirement from the government job could justify his income if chance was given to him to prove the same---Held, accused/petitioner present in the Court who was looking very weak, and was breathing with difficulty due to old age had succeeded in making out a case for bail specially in the circumstances when his lawyer had claimed that he was an old patient of hypertension, diabeties and heart---Bail was granted by High Court.

Nehal Hashmi for Petitioner.

Ainuddin Khan, Addl. Deputy Prosecutor-General, NAB along with I.O. Mahmood.

2008 M L D 1426

[Karachi]

Before Khawaja Naveed Ahmed, J

ABDUL MANAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.188 of 2008, heard on 28th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)---Bail, refusal of---Allegation against the accused was that while he was driving a car, upon searching by the Excise Police, 132 Kgs of Charas in 136 rods was recovered from the concealed cavities under the dashboard of the said vehicle---Co accused was also sitting on the adjacent seat of the car---Contention of the applicant/accused was that bail having been granted to the co-accused, in view of the rule of consistency he was also entitled to bail and that since the samples were not taken from all the recovered rods for chemical analysis the accused deserved grant of bail---Validity---Held, role assigned to the applicant in the case was distinguishable from that of the co-accused, who had been granted bail by High Court and as such applicant/accused could not claim benefit of bail on the rule of consistency---Taking samples from a few rods and leaving other rods could not help the accused at bail stage, as the recovered contraband was available with the Investigating Officer--No enmity had been shown with the Excise Staff for false implication of the accused---Bail was declined by High Court.

PLD 2004 SC 856; 2000 MLD 117; 1999 MLD 453; 1989 P.Cr.L.J. 2456; 2007 P.Cr.L.J. 89; Bail Application No. 100 of 2008; 1979 SCMR 9 and 2007 YLR 2742 distinguished.

Muhammad Qadir Khan for Applicant.

Syed Muhammad Ali Mirza for the State.

2008 M L D 1428

[Karachi]

Before Dr. Qammaruddin Bohra, J

Dr. AIJAZ AHMED---Applicant

Versus

THE STATE---Respondent

Criminal Revision Applicant No.50 and M.As. Nos. 2087 of 1954 of 2008, decided on 2nd June, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A, 517 & 561-A---Superdari of vehicle allegedly used in offence---Vehicle in question was examined by Forensic Science Laboratory and same was lying at the Police Station since long and chances were that same would be damaged there---Court ordered that Vehicle would be returned to petitioner on superdari with further direction to petitioner to co-operate with the police in investigation of the case, if they required and that the condition of the vehicle should not be changed till disposal of the case.

Shoukat Ali for Applicant.

Syed Muhammad Ali Mirza for the State.

2008 M L D 1431

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mahmood Alam Rizvi, JJ

MUHAMMAD YOUNUS ARAIN---Petitioner

Versus

CHAIRMAN, NAB and another---Respondents

Constitutional Petition No. D-507 and C.M.A. Nos. 1861, 1950 and 4150 of 2005, decided on 13th May, 2008.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 18, 22 & 34-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Cognizance of offence---Delegation of Powers by Chairman National Accountability Bureau---Deputy Director called the petitioner in his office and asked him about his assets in his name and induced petitioner to straightaway enter into some plea "bargain---Petitioner had challenged said action of the Deputy Director and sought declaration that unwarranted action of the Deputy Director was in flagrant violation of law and petitioner had prayed that he be restrained from achieving his nefarious designs; and calling petitioner in his office in the garb of authority and colourable exercise of power---Plea of petitioner was that under S.22 of National Accountability Ordinance, 1999, Chairman NAB could inquire into and investigate any suspected offender when involved in the commission of offence under said Ordinance and Deputy Director being official of Chairman NAB had no power or authority to call for information---Validity---Chairman NAB in writing could delegate powers and also authorize performance of any of his functions for carrying out the objectives of the Ordinance in view of S.34-A of National Accountability Ordinance, 1999---Chairman NAB in exercise of the vested powers, issued orders directing all Director-Generals to carry out functions for the smooth running of the objects of Ordinance, and for expeditious disposal of cases; which contained powers to refer matters to inquiry and investigation in terms of S.18-C of National Accountability Ordinance, 1999.

Abdul Rauf Qadri v. National Accountability Bureau 2004 CLC 1353; PLD 2007 Kar. 469; Messrs Kaloodi International (Pvt.) Ltd. and another v. Federation of Pakistan and others PLD 2001 Kar. 311 and Wakeeludin and others v. The State and others 2007 PCR.LJ 1515 ref.

Muhammad Anwar Tariq for Petitioner.

Muhammad Ali Waris Lari and Asif Rasheed for NAB.

2008 M L D 1442

[Karachi]

Before Dr. Qammaruddin Bohra, J

UMAIR ASHRAF---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No.59 of 2008, decided on 3rd June, 2008.

Qanun-e-Shahadat (10 of 1984)---

----Art. 164---Production of CD as evidence---Applicant in a miscellaneous application had contended that the CD allowed to be produced in evidence consisted of confession of accused before the police and had no evidentiary value---Validity---Such contention could be raised at the time of arguments---Evidence which had been collected by the prosecution through modern device, could not be disallowed.

Rahim Khan Bangash for Applicant.

Ms. Farah Naz Qazi for the State.

2008 M L D 1445

[Karachi]

Before Muhammad Afzal Soomro, C J

KHALID AZIZ and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.1258 of 2006, decided on 12th December, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.337-A(i)&(iv)---Bail before arrest, grant of---No serious injuries had been sustained by the complainant in the case---Offence with which accused persons were charged did not come within the ambit of prohibitory clause of S.497, Cr.P.C.---Interim pre-arrest bail granted earlier to accused persons was confirmed on the same terms and conditions.

Jawed Musarat for Applicants.

Asad Atta Baloch for the State.

Raja Sikandar Khan Yasir for the Complainant.

2008 M L D 1451

[Karachi]

Before Mrs. Qaiser Iqbal and Syed Mahmood Alam Rizvi, JJ

NIAZ A. BALOCH---Petitioner

Versus

CHAIRMAN, NAB and 4 others---Respondents

C.P. No.D-186 and C.M.A. No.649 of 2005, decided on 13th May, 2008.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 18, 22 & 34-A---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Delegation of powers by Chairman, National Accountability Bureau---Reference against the petitioner on charges of corruption and corrupt practices, misuse of authority, acquiring movable and immovable properties beyond his pecuniary sources, in his name and in the names of his dependants as benamidars etc.---Proceedings against petitioner were initiated on the purported sanction of Director General on the alleged delegation of powers by the Chairman---Petitioner had alleged that purported authorization of investigation carried out by the Director General was in violation of law and that entire investigation, was coram non judice and, without legal authority, which was liable to be quashed---Petitioner further urged that under S.22 of National Accountability Ordinance, 1999, the Chairman could inquire into and investigate any suspected offender involved in the commission of offence under said Ordinance---Validity---Chairman NAB in writing could delegate powers and also authorize performance of any of his functions for carrying out the objectives of National Accountability Ordinance, 1999 by way of insertion of S.34-A by virtue of National Accountability (Amendment) Ordinance, 2001---Chairman NAB, in exercise of the vested powers, issued orders directing all Director Generals, to carry out functions for the smooth running of the objects of Ordinance, and for expeditious disposal of cases, which contained powers to refer matters to inquiry or investigation in terms of S.18-C of National Accountability Ordinance, 1999.

Abdul Rauf Qadri v. National Accountability Bureau 2004 CLC 1353; PLD 2007 Kar. 469; Messrs Kaloodi International (Pvt.) Ltd. and another v. Federation of Pakistan and others PLD 2001 Kar. 311 and Wakeeludin and others v. The State and others 2007 PCr.LJ 1515 ref.

M.A. Kazi for Petitioner.

Muhammad Ali Waris Lari and Asif Rasheed for NAB.

2008 M L D 1473

[Karachi]

Before Khawaja Naveed Ahmed, J

MUHAMMAD RAMZAN and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.139 & 140 and M.As. Nos. 438 & 685 of 2008, decided on 14th March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.395---Bail, grant of---Further inquiry---Accused persons were arrested from a bungalow, which was the place of incident---Accused persons did not. appear to be dacoits, but could be the gang persons of land mafia who were involved in occupying vacant bungalow on gun point in absence of the owner by throwing Chowkidars out of the premises---Was, however yet to be determined whether it was a case of dacoity or it was a case of gang of persons of land mafia---Matter, in circumstances, required evidence and that point would be decided only through evidence---Present was a fit case for holding further inquiry under S.497(2), Cr.P.C. into the nature of the offence---Accused persons were granted bail, in circumstances.

Abdul Hakim Rajput for the Applicants (in Bail Application No.139 of 2008).

Safdar Husain Shah Bukhari, Advocate for Applicants (in Bail Application No.140 of 2008).

Ismatullah Khan Niazi for the State.

2008 M L D 1491

[Karachi]

Before Khawaja Naveed Ahmed, J

MANZOOR HUSSAIN---Applicant

Versus

THE STATE---Respondent

Criminal Revision Application No. 27 of 2008, decided on 27th April, 2008.

Criminal Procedure Code (V of 1898)---

---S. 516-A---Penal Code (XLV of 1860), S.395---Custody and disposal of property pending trial---Application under S.516-A, Cr.P.C. for release of the vehicles was strongly opposed by State Counsel on the grounds that applicant did not co-operate with the police and had not supplied names and addresses of the drivers of the vehicles; that vehicle was the case property; that accused persons were absconding and the vehicles were the material piece of evidence in the hands of the prosecution, and if same were released, the prosecution's case would be hampered---Impugned order was a speaking order and did not need any interference---Impugned order was upheld and application was dismissed.

Fayaz Ahmed Sammor for Applicant.

Arshad Lodhi, A.A.-G for the State.

2008 M L D 1505

[Karachi]

Before Khawaja Naveed Ahmed, J

SALEEM and 7 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 377 of 2006, decided on 19th February, 2008.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 337-A(ii), 337-L(ii), 504, 147, 148, 149 & 114---Appreciation of evidence---Substitution of accused, theory of---Scope--One man had died in the incident and others had received injuries---Ocular testimony was on record against the accused persons---Injured eye-witnesses were alive---Fatal shot had been attributed to accused---Ocular testimony was not in contradiction with medical evidence---Theory of substitution of accused was a rare phenomenon, which was never used in cases like the present case, which had occurred on public place like hotel where number of other persons were sitting, lights were on and incident was witnessed by a crowd---Theory of substitution was mostly used in blind cases which were not witnessed by eye-witnesses and the complainant had option in hand to name any person into the case keeping in view the motive and scale of enmity with a particular person---Present case was of a different nature, which had been witnessed by eye-witnesses who had supported the prosecution version in their evidence at the trial---Inquest report of deceased prepared by the police, had shown that deceased was bleeding from abdomen---Prosecution having successfully proved its case against accused person, Trial. Court had rightly convicted them---Sentence and conviction of the main accused remained the same, while the sentences of the other accused persons who had been charged with causing injuries to the prosecution witnesses, had been reduced to already undergone.

Imran Ashraf and 7 others v. The State 2001 SCMR 424 and Muhammad Hanif v. The State PLD 1993 SC 895 ref.

Abdus Sami for Appellants.

Fazal ur Rehman Awan for the State.

2008 M L D 1521

[Karachi]

Before Khawaja Naveed Ahmed, J

MUHAMMAD SALEEM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 2 of 2008, decided on 25th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.409/34---Bail, grant of---Involvement of accused, contributory in nature---Further inquiry---Accused was in jail since 21-6-2007 and charge had not been framed---Involvement of accused in the offence was contributory in nature---Case was a fit one of holding further inquiry under S.497(2), Cr.P.C. and accused was entitled to be enlarged on bail pending inquiry/trial---Accused was admitted to bail in circumstances.

Naheed Afzal Khan for the Applicant.

Agha Zaafar, A.A.-G for the State.

2008 M L D 1548

[Karachi]

Before Khawaja Naveed Ahmed, J

Malik MUHAMMAD YAQOOB---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 140 to 145 of 2004, heard on 12th February, 2008.

Emigration Ordinance (XVIII of 1979)---

----S. 22---Appreciation of evidence---Since accused was in advance age and he had spent 22 months and 8 days in jail, his sentence was reduced to the one already undergone by him---State counsel had shown her concern about the amount received by accused from different poor people and sought direction from the High Court for refund of that amount---Said controversy should have been resolved by the Investigating Officer at the investigation stage or the Trial Court could have taken measures on the basis of evidence---Victims could recover the alleged amount from accused through civil litigation, if so advised.

Appellant in person along with Muhammad Shahid Qadeer Suharwardy for Appellant.

Ms. Sofia Saeed Shah Standing Counsel for the State.

Date of hearing: 12th February, 2008.

2008 M L D 1562

[Karachi]

Before Khawaja Naveed Ahmed, J

MUHAMMAD ALI alias PAPOO---Appellant

Versus

THE STATE---Respondent

Criminal Jail Appeal No. 165 of 2007, decided on 11th March, 2008.

Penal Code (XLV of 1860)---

----S. 398--Appreciation of evidence---Accused present in the court repented and promised that he would not repeat the offence in future---Accused also submitted that he was a married man, having wife and children and he prayed for mercy---Accused had been continuously in custody for last about three years and three months---Keeping in view the repentence and regrets for committing the offence shown by accused and his seeking forgiveness from the Almighty Allah, his sentence was reduced to, one already undergone by him---Amount of fine was also reduced from Rs.50,000 to Rs.2,000, in circumstances.

Muhammad Ali alias Papoo in person.

Fazalur Rehman Awan for the State.

2008 M L D 1586

[Karachi]

Before Khawaja Naveed Ahmed, J

LAL KHAN alias SHER KHAN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.45 of 2007, decided on 26th February, 2008.

Penal Code (XLV of 1860)---

----Ss. 324 & 395---Appreciation of evidence---Sentence, reduction in---Counsel for accused had stated that he would be satisfied if sentence awarded to accused persons be reduced---State counsel had submitted that he had no objection if the sentence awarded to accused persons was reduced as they were youngmen and they repented the crime committed by them---Keeping in view the young age of accused persons as well as the attending circumstances of the case sentence awarded to them by the Trial Court was reduced to 4 years' R.I. and amount of fine was also reduced from Rs.10,000 to Rs.5,000, in circumstances.

Ajab Khan Khatak for Appellants.

Fazalur Rehman Awan for Respondent.

2008 M L D 1638

[Karachi]

Before Munib Ahmad Khan, J

MASOOD AHMED ABBASI---Appellant

Versus

GULAB KHAN and 2 others---Respondents

Criminal Acquittal Appeal No.133 of 2006, decided on 14th January, 2008.

Penal Code (XLV of 1860)---

----Ss.448 & 454/34---Criminal Procedure Code (V of 1898), S. 417--Appeal against acquittal---Grievance of the appellant/complainant was that his Watchman, appointed 40 years before, was not allowing him to enter into the plot in question---F.I.R. was registered against respondent accused (watchman) under Ss.448 & 454/34, P.P.C.---Matter was proceeded by Magistrate and accused was acquitted under S.249-A, Cr.P.C., with the observation that no trespass had been committed in the case---State Counsel had also stated that present appeal was not maintainable and the order of the Magistrate was proper---Appellant had even not filed any document to show the ownership of plot in question---Appellant having himself parted with his possession of the plot about 40 years back to alleged accused, no trespass was committed in the case---Appeal was dismissed.

Muhammad Irfan for Appellant.

Raja Mir Muhammad Khan for Respondents.

Ms. Afsheen Aman for the State.

Date of hearing: 14th January, 2008.

2008 M L D 1646

[Karachi]

Before Bin Yamin, J

JUNAID---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 369 of 2008, decided on 22nd May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.324---Bail, grant of---Further inquiry---Allegation against accused was that he was present at the time of the incident duly armed with dagger, but nothing was available on record to show that he had actually used the dagger--Merely presence of accused was not sufficient to establish the case of prosecution against accused---Case of accused falling within the ambit of further inquiry, he was allowed bail.

Muhammad Nawaz Abbasi for the Applicant.

Syed Muhammad Ali Meerza, State Counsel.

2008 M L D 1654

[Karachi]

Before Arshad Noor Khan, J

MUHAMMAD ARSHAD---Appellant

Versus

SULTAN MURREE and another---Respondents

Criminal Acquittal Appeal No. 220 of 2007, decided on 28th January, 2008.

Illegal Dispossession Act (XI of 2005)---

----S.3---Criminal Procedure Code (V of 1898), S. 417---Appeal against acquittal---Appellant/complainant had alleged that he was in possession of the shop in question for the last 15/16 years and was running his business therein and respondent had illegally dispossessed him from the shop---Validity---Appellant was not the owner of the shop in question which was situated in a Katchi Abadi and he himself was the land grabber over a Government land---Possession of appellant over the Government land in any way could not be termed to be lawful possession over the shop in question---Appellant himself being not the lawful owner or occupier of the property in question, he could not seek protection, under the provisions of Illegal Dispossession Act, 2005.

Mamoona Bano v. S.H.O., Police Station Al-Falah and others SBLR 2007 Sindh 1047 rel.

Sardar Sher Afzal for Appellant.

M. Naimat Ali Randhawa for Respondents.

Miss Afsheen Aman for Respondent No.2.

2008 M L D 1657

[Karachi]

Before Munib Ahmad Khan, J

AYESHA KHALID---Applicant

Versus

I.O., NAZIR A. CHAUDHRY---Respondent

Criminal Transfer Application No.1 of 2008 and Criminal Miscellaneous Application No.4 of 2008, decided on 14th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 526---Penal Code (XLV of 1860), S.365-A---Transfer of case---Application for---Applicant had submitted that her matter had not properly been scrutinized by the police officials as well as by the Magistrate and that the Magistrate had wrongly entertained the police report---Officials were duty bound to submit their report after investigation and it was the Magistrate who would decide as to whether under the given circumstances the said report was to be accepted or some other direction to be issued to the police officials---Applicant was levelling allegations against her real uncle and aunt, who were aged persons---Applicant had stated that since the property was involved, they were after her life---Magistrate was directed by High Court to look into the matter and after hearing the applicant to pass an order on the police report which had been submitted and to pass an order within specified period.

Applicant in person.

2008 M L D 1661

[Karachi]

Before Ghulam Rabbani, J

KHALID and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.244 of 2004, decided on 24th May, 2004.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.436---Interim pre-arrest bail, confirmation of---Only allegation against accused persons was that the fire took place at their instance---Contentions of counsel for accused persons were that F.I.R. was delayed by five hours without any plausible explanation and that accused were not available at the scene of offence at the relevant time---State Counsel while not disputing said factual aspects of the case, had conceded that interim pre-arrest bail already granted to accused persons be confirmed and further submitted that the main accused had already been enlarged on bail---Two eye-witnesses whose names appeared in the F.I.R. had also not supported the prosecution case--Accused persons, having made out a case for confirmation of pre-arrest bail already granted to them, same was confirmed accordingly.

Khadim Hussain M. Sheikh for Applicants.

Muhammad Azeem Panhwar for the State.

2008 M L D 1672

[Karachi]

Before Munib Ahmad Khan, J

Messrs SIDDIQUI FUND TRUST, KARACHI through Manager-Applicant

Versus

THE IVTH ADDITIONAL SESSIONS JUDGE, KARACHI EAST and 2 others ---Respondents

Criminal Revision Application No.85 of 2007, decided on 11th February, 2008.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Criminal Procedure Code (V of 1898), S.439---Illegal dispossession---Applicant being aggrieved of encroachment by his tenant, moved District Court under Illegal Dispossession Act, 2005---Applicant had stated that respondent who was tenant of applicant, had constructed rooms with bathroom adjacent to flats of applicant and thereby had encroached upon the land of the applicant Trust---Application was dismissed on the ground that respondent was not a land grabber and her possession of room did not fall within the meaning of "illegal possession"---Explanation given by the respondent for construction of room in question had no force as she could seek adjustment from landlady in respect to the rent of the premises--Respondent being a tenant could not be allowed to construct at her own additional room without any approval of applicant Trust---Respondent was illegally holding additional extended place and her occupation in respect to that extended portion was quite illegal, Trial Court was not justified to dismiss application of the applicant without apprehending the true wording of the law---Impugned order was set aside with the direction to proceed with the matter in accordance with law.

PLD 2007 SC 427 ref.

Khalid Farooqi for Applicant.

Ms. Afsheen Aman for the State.

2008 M L D 1676

[Karachi]

Before Mrs. Yasmin Abbasey, J

BADER MAQBOOL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 6 of 2007, decided on 8th October, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 173 & 190---Penal Code (XLV of 1860), S.324---Purpose of examination of report under S.173, Cr.P.C.---For the purpose of examination of report under S.173, Cr.P.C., office of Judicial Magistrate, would be considered in two different categories, one as judicial officer and other as administrative officer---While functioning on administrative side, he would discharge his duties as persona designata and not as a court, and while discharging his duties as a persona designata, though he was required to examine the material placed before him, but was not bound to explain each and every aspect of case and give its reason for acceptance and rejection---Offence under S.324, P.P.C. was exclusively triable by the Court of Session---After receiving the report under S.173, Cr.P.C., Magistrate was therefore required to forward the same to the Court of Session as provided under S.190, Cr.P.C.---Subsection (2) of S.190, Cr.P.C., further clarified that Magistrate taking cognizance under subsection (1) of said section 190, Cr.P.C. of the offence triable exclusively by a Court of Session, would, without recording any evidence, send the case to the Court of Session for trial---Trial Court was directed to forward the report submitted by Investigating Officer under S.173, Cr.P.C. in the Court of Session for its disposal.

Muhammad Ashraf Kazi for Applicant.

Ms. Afsheen Aman for the State.

Date of hearing: 8th October, 2007.

2008 M L D 1688

[Karachi]

Before Bin Yamin, J

MUHAMMAD ARIF and 3 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.618 of 2008, decided on 27th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.337-A(i)(v)---Interim pre-arrest bail, grant of---Except one accused person, name of other three accused persons were not mentioned in the F.I.R.---Counsel for accused persons had submitted that case against accused persons had been registered on false ground to humiliate and harass them; that accused persons were respectable persons of the locality and were involved in the case on false ground because of enmity---Point raised by the counsel for accused persons required consideration---Interim pre-arrest bail was granted to accused persons, in circumstances.

Muhammad Nawaz Khan Abbasi for Applicants.

2008 M L D 1689

[Karachi]

Before Munib Ahmad Khan, J

BIBI ZAINAB and another-,-Petitioners

Versus

AHSAN-UR-RASHEED and 10 others---Respondents

Civil Revision No. 118 of 2006, decided on 14th January, 2008.

Civil Procedure Code (V of 1908)---

----S. 115---Revision application---Serious dispute existed in respect of properties of deceased between the parties which could not be solved through short cut proceeding---Applicants were claiming the properties of the deceased on the basis of oral gift, notwithstanding the fact that they were sharers in the said properties, while the other side was claiming on the basis of sharing; in such a situation, the only solution was that parties should file suit for administration of properties of the deceased.

Ashraf Mehmood and Muhammad Ali Abbasi for Petitioner.

Ms. Afsheen Aman for the State.

Kadir Bux Umrani, Official Assignee.

2008 M L D 1690

[Karachi]

Before Mrs. Yasmin Abbasey, J

FARMAN ALI---Applicant

Versus

TANDI BAKHT and 3 others---Respondents

Criminal Revision Application No.152 of 2005, decided on 3rd March, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 203 & 265-K---Dismissal of complaint---Plea of counsel for the applicant was that after taking cognizance of the matter and framing of charge, the Presiding Officer should have recorded the evidence in order to scrutinize the matter properly; that disposing of case under S.203, Cr.P.C. without recording statement of prosecution witness, was a miscarriage of justice---Counsel for State had argued that no prejudice was caused to applicant---Prima facie direct complaint lodged by applicant in 2002 for an alleged incident, which happened in January, 1998, appeared to be false and frivolous---Even if, as per applicant's own statement, in Jirga respondent had admitted her guilt and she was penalized by Jirga, no explanation was given by the applicant that despite admission of respondent why no complaint or F.I.R. was got lodged by the applicant earlier---No medical report had also been placed on record in proof of poisoning the applicant---State Counsel had stated that the Trial Court was justified in disposing of case as there was no probability of conviction of accused persons---No doubt arguments advanced by the State Counsel appealed to reason, but after taking cognizance and framing of charge, proper course would have been to record the statement of at least main prosecution witness before disposal of any application under S.265-K, Cr.P.C.---Only four witnesses had been mentioned in the list of witnesses filed along with the complaint---Trial Court was directed to record evidence of said four prosecution witnesses within specified period.

Aman Khatak for Applicant.

Ms. Afsheen Aman for the State.

2008 M L D 1702

[Karachi]

Before Arshad Noor Khan, J

MUMTAZ HUSSAIN---Petitioner

Versus

Dr. NASIR KARIM and 2 others---Respondents

Criminal Revision No. 73 of 2007, decided on 28th January, 2008.

Illegal Dispossession Act (XI of 2005)---

----Ss. 4 & 5---Illegal dispossession---Revision had been directed against the order passed by the Trial Court whereby the direct complaint filed by applicant under S.4 of Illegal Dispossession Act, 2005 was dismissed--Suit filed by the applicant against respondents for injunction was pending adjudication before the Civil Court, wherein the applicant had prayed for perpetual injunction against their dispossession from the property in dispute---Respondents had also filed suit against the applicant for declaration, cancellation and perpetual injunction with regard to the same property---Dispute between both the parties with regard to same property involved in the complaint, in circumstances was pending adjudication before the competent courts wherein both the parties were required to establish their claims by leading evidence pro and contra to their respective claims---Unless the titles of the parties were cleared by the Civil Court, the criminal proceedings under Illegal Dispossession Act, 2005 could not be initiated---Lower Court had rightly passed order by holding that the matter being sub judice before the Civil Court, proceeding under Illegal Dispossession Act, 2005 could not be taken---In absence of any illegality and irregularity in the findings of the court below, same could not be interfered with by the High Court in exercise of its revisional jurisdiction.

Attaullah Khan for Appellant.

Miss Afsheen Aman for the State.

2008 M L D 1709

[Karachi]

Before Arshad Noor Khan, J

Master SAMEER and others---Plaintiffs

Versus

FAZAL MEHMOOD and another---Defendants

Suit No.663 of 2004, decided on 26th August, 2008.

(a) Fatal Accidents Act (XIII of 1855)---

----S.1---Fatal accident---Recovery of damages---Rash and negligent driving---Proof---Non-Production of .eye-witnesses---Plaintiffs being legal heirs of deceased claimed recovery of damages on the ground that their predecessor-in-interest died in accident due to rash and negligent driving of defendant---Validity---Widow of plaintiff was not present at the time of incident, therefore, she could not be termed as eye-witness of the case---Sister of widow was going with deceased and also sustained injuries at the time of incident, she was the real and natural witness of incident but she had not been examined by plaintiff to prove that vehicle was driven by defendant recklessly in rash and negligent manner---Non­-examination of natural witness adversely reflected on the case of plaintiffs---Plaintiffs produced copy of F.I.R. which was registered against unknown vehicle and driver---Name of driver could not be mentioned in F.I.R. as the driver was not known to plaintiff but registration number of vehicle could have been noted and must have been mentioned in the F.I.R., which was the base of the suit---F.I.R. was completely silent to implicate defendant and his vehicle to be responsible for the incident---Plaintiff had also produced a copy of charge-sheet framed against defendant, in which number of vehicle was also mentioned but charge-sheet was completely silent regarding arrest of defendant and seizure of vehicle in question---No sufficient evidence was on record to prove that defendant was driving vehicle in question which hit deceased in rash and negligent manner and vehicle did not receive any damage while climbing on foot-path---Plaintiff failed to lead any cogent, convincing and plausible evidence to prove that defendant was driving vehicle in rash and negligent manner---Plaintiff could not prove that defendant was responsible for causing death of deceased and evidence led by plaintiff was wholly insufficient to award any compensation/damages against defendants---Suit was dismissed in circumstances.

Punjab Road Transport Corporation v. Zahida Afzal and others 2006 SCMR 207; Pakistan Steel Mills Corporation Ltd. v. Ehteshamuddin Qureshi 2005 SCMR 1392; Ehteshamuddin Qureshi v. Pakistan Steel Mills Corporation Ltd. 2004 MLD 361; Irfan Khan and others v. Islamic Republic of Pakistan 2005 MLD 1409; Aijaz and others v. Karachi Transport Corporation and others 2004 MLD 491; Najma Parveen v. Karachi Transport Corporation 2004 MLD 518; Mst. Razia Khatoon and others v. Province of N.-W.F.P. and others 2002 MLD 539 ref.

(b) Criminal Procedure Code (V of 1898)---

----S. 221---Charge-sheet---Object and scope---Charge-sheet in criminal administration of justice is gist of whole case of prosecution which requires to show that which of the accused has been implicated by which of the evidence collected against him---In the present case charge-sheet was silent about role attributed to accused, it was deemed that evidence against such accused had not been collected by prosecution.

(c) Fatal Accidents Act (XIII of 1855)---

---S.1---Limitation Act (IX of 1908), Art.21---Fatal accident---Recovery of damages---Limitation---Incident took place on 17-5-2002 and suit was filed on 30-6-2004---Effect---Suit was presented much after expiry of period of one year from the date of incident---Suit filed by plaintiff was hit by Art. 21 of Limitation Act, 1908---Suit was time-barred in circumstances.

(d) Fatal Accidents Act (XIII of 1855)---

---S.1---Fatal accident---Recovery of damages---Locus standi---Children and widow of deceased had locus standi and' legal character to file suit against defendants---Suit was maintainable in circumstances.

Raja Ali Asghar, for Plaintiffs.

Muhammad Ali Abbasi for Defendants.

Date of hearing: 13th August, 2008.

2008 M L D 1735

[Karachi]

Before Mrs. Qaiser Iqbal and Khawaja Naveed Ahmed, J

MUHAMMAD ASIF MARGOOB SIDDIQUI---Petitioner

Versus

PAKISTAN through Secretary of Law and Parliamentary Affairs Islamabad

and 3 others---Respondents

Constitutional Petition No. D-1167 and Miscellaneous Applications Nos.5665 and 5666 of 2008, decided on 19th August, 2008.

(a) National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(v) & 18---Constitution of Pakistan (1973), Art. 199---Qanun­-e-Shahadat (10 of 1984), Art.161---Constitutional jurisdiction of High Court---Scope---Quashing of proceedings---Privileged documents---Accused sought quashing of inquiry proceedings which were initiated on anonymous complaint some 3/4 years ago---High Court directed the authorities to provide proceedings of Executive Board Meeting---Contention of authorities was that such proceedings could not be provided being an internal correspondence---Validity---Contention of authorities was rejected by High Court on the ground that matter did not pertain to any State secret whereby affairs of the State could be put under jeopardy---No privilege could be attached to such documents and in order to arrive at a just conclusion High Court was well within its power to rely upon such documents---Contention of authorities was not only meritless but also contemptuous---High Court, under Art. 199 of the Constitution, could quash inquiries/investigations---Continuation of inquiry or proceedings by NAB authorities against accused would be a mala fide exercise of power required to be checked in as enshrined under Art. 199 of the Constitution---Proceedings of inquiry pending against accused before NAB authorities were quashed by High Court in exercise of power under Art. 199 of the Constitution---Petition was allowed in circumstances.

Muhammad Irshad Khan v. Chairman, NAB 2007 PCr.LJ 1957; Chairman, NAB v. Muhammad Irshad Khan 2008 SCMR 1012; Gulzar v. Sindh Punjab Goods Transport PLD 1966 Kar. 256 and Karachi Administration Employees Cooperative Housing Society v. Government of Sindh 2004 YLR 1070 rel.

(b) Public functionaries---

---Good governance---Principle---All public power should be exercised reasonably, justly, fairly and free from malice.

Amanullah Khan v. Federal GOP PLD 1990 SC 1092 and Chairman RTA v. Pakistan PLD 1991. SC 14 rel.

(c) National Accountability Ordinance (XVIII of 1999)---

---S.9(a)(vi)---Words "misuse of authority"---Meaning---Any action amounting to misuse of power, whether taken in good faith or bad faith, is to be reckoned as mala fide act---Distinction between misuse of power in good faith and misuse in bad faith is that former arises when an authority exercises its power in breach of law but acts bonafidely and with best of intentions---While taking into account some extraneous matters or by ignoring relevant matters, the same would render the act or order ultra vires---Such would be a fraud on power.

H.M. Abdullah v. Income Tax Officer 1991 PTD 217; Shahnaz Begum v. Hon'ble Judges of the High Court of Sindh PLD 1971 SC 677; Anwar Ahmed Khan v. The State 1996 SCMR 24; Raja Rustam Ali Khan v. Muhammad Hanif 1997 SCMR 2008; Muhammad Latif A.S.-I. v. Sharefan Bibi 1998 SCMR 666; Chidambram v. Shahmugham AIR 1938 Madras 129; S.N. Sharma v. Bipin Kumar AIR 1970 SC 786; State of West Bengal v. Swapan Kumar AIR 1982 SC 949; State of Haryana v. Ch. Bhajan Lal AIR 1992 SC 604; State of Orissa v. Ganesh Chandra Jew AIR 22004 SC 2179; Rain Babu Singh v. Addl. Director-General of Police 1993 Cr.LJ 1253 (Allahabad); Napra's case AIR 1976 AP 219; Bir Singh AIR 1952 Allahabad 610; Muhammad Hussain's case AIR 1936 Calcutta 224; Chamanal's case AIR 1943 Lah. 304; Nandram's case AIR 1947 Allahabad's case 348; Parameshwara's case AIR 1966 Karnatka 264; Sharda's case PD AIR 1977 SC 1754; and A. Younus Juanj's case 1979 Cr.LJ 770; Administrative Law Text by Kenneth Culp Davis at p. 94; Dictionary of Powers by D.J. Galligan; Gadoon Textile Mills v. WAPDA 1997 SCMR 641 and Government of N.-W.F.P. v. Majee Floor and General Mills 1997 SC 1804; Collaterally, in KDA v. Wall Muhammad 1991 SCMR 2434; Lord Lindley in General Assembly of Free Church of Scotland v. Overtown 1904 AC 515; Warrington C.J. in Short v. Poole Corporation 1926 Ch 66; Partap Sindh v. State of Punjab, AIR 1964 SC 72; Makhan Singh v. State of Punjab, AIR 1964 SC 381; Anand v. Chief Secretary, AIR 1966 SC 657; Durgadas v. Union of India, AIR 1960 SC 1078; State of Assam v. Bharat Kala Bhandar, AIR 1967 SC 1766; Raja Anand v. State of U.P. AIR 1967 SC 1081; Somawantiv. State of Punjab, AIR 1963 SC 151; Express Newspapers Pvt. Ltd. v. Union of India AIR 1986 SC 872; Ram Manohar Lohia v. State of Bihar AIR 1966 SC 740; ITO v. Seth Brothers AIR 1970 SC 292; State of Assam v. Amalgamated Tea Estates AIR 1979 SC 2072; S.N. Sharma v. Bipin Kumar AIR 1970 SC 786; State of Punjab v. Ramilal AIR 1971 SC 1228; Punnalal Binjraj v. Union of India AIR 1957 SC 397; Barium Chemicals v. Company Law Board AIR 1967 SC 295; State of Punjab v. Gurdial Singh AIR 1980 SC 319 and H.D. Vora v. State of Maharashtra AIR 1984 SC 866 rel.

(d) National Accountability Ordinance (XVIII of 1999)---

----Preamble---Object of promulgation of National Accountability of Ordinance, 1999, was to check corruption and corrupt practice of the source of public office.

Dr. Farogh Naseem for Petitioner.

Choudhry Muhammad Iqbal, ADPG NAB.

2008 M L D 1

[Lahore]

Before Syed Zahid Hussain, J

ABDUL GHAFOOR and others---Petitioners

Versus

MUHAMMAD TUFAIL---Respondent

Civil Revision No. 2664 of 2005, decided on 11th October, 2007.

Punjab Pre-emption Act (IX of 1991)---

----S.13---Pre-emption suit-.-Non-mentioning in plaint date, time and place where pre-emptor acquired knowledge of sale---Effect---Performance of Talbs was sine qua non for such suit---Pre-emptor's had failed to fulfil pre-conditions for maintaining such suit, thus, was dismissed.

Government of N.-W.F.P. through Secretary, Law Department v. Malik Said Kamal Shah PLD 1986 SC 360; Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1; Kanwal Nain and 3 others v. Fateh Khan and others PLD 1983 SC 53 and Muhammad Aslam and 2 others v. Syed Muhammad Azeem Shah and 3 others 1996 SCMR 1862 ref.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others PLD 2007 SC 302; Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315; Fazal Subhan and 11 others v. Mst. Sahib Jamala and others PLD 2005 SC 977; Fazal Din through L.Rs. v. Muhammad. Anayat through L.Rs. 2007 SCMR 1; Nawab Din through L.Rs. v. Faqir Sain 2007 SCMR 401; Mst. Kharia Bibi v. Mst. Zakia Begum and 2 others 2007 SCMR 515; Mst. Lalan Bibi and others v. Muhammad Khan and others 2007 SCMR 1193 and Abdul Rehman v. Haji Ghazan Khan 2007 SCMR 1491 rel.

Shahid Shaukat for Petitioners.

Zaheer Zulfiqar for Respondent.

2008 M L D 3

[Lahore]

Before Iqbal Hameed ur Rehman, J

AHMAD NAWAZ---Petitioner

Versus

THE STATE and 2 others---Respondents

Writ Petition No. 2355 of 2007, decided on 17th September, 2007.

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979)---

----S. 10---Criminal Laws Amendment (Protection of Women) Act (VI of 2006), Preamble---General Clauses Act (X of 1897), S.6---Constitution of Pakistan (1973), Arts. 12 & 199---Constitutional petition---Quashing of F.I.R.---Effect of the enforcement of the Criminal Laws Amendment (Protection of Women) Act, 2006, on the cases got registered as well as the, offences committed prior to the enforcement of the said Act---Occurrence had taken place on 10-3-2006 and the F.I.R. was get registered under S.10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, on 16-3-2006 much prior to the enforcement of the Criminal Laws Amendment (Protection of Women) Act, 2006, which came into force on 2-12-2006---Law applicable at the time of taking place of the occurrence as well as at the time of registration of the F.I.R. would be fully applicable to the case and the Criminal Laws Amendment (Protection of Women) Act, 2006, whereby some sections of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, including section 10 thereof had been omitted, would not apply to the case, as was evident from the saving clause given in the Act, 2006---Even Article 12 of the Constitution and section 6 of the General Clauses Act, 1897, had fully protected the Offence of Zina (Enforcement of Hudood) Ordinance, 1979---No case, thus, was made out for quashing of the impugned F.I.R.---Constitutional petition was dismissed accordingly.

Athar Rehman Khan for Petitioner.

Muhammad Qasim Khan, A.A.-G. on Court's call for Respondents.

2008 M L D 7

[Lahore]

Before Khawaja Muhammad Sharif, J

BILAL WAHEED BUTT---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 7378-B of 2007, decided on 29th October, 2007.

Criminal Procedure Code (V of 1898)---

---S. 497---Penal Code (XLV of 1860), Ss.302/324/337-A(iii)/337-F(iii)/337-F(v)/148/149/109---Bail, refusal of---Accused, along with his co-accused while armed with fire-arm had caused injuries on the person of the deceased---Accused was never declared innocent by the police---Case of accused was totally different from co-accused who had been declared innocent and were on bail---Contention that accused was behind the bars for the last one year and four months but the trial had not yet concluded, was not sustainable, as no bail could be granted on the ground of delay after deletion of such ground from the Statute Book---Offences alleged against the accused fell within the ambit of the prohibitory clause of S. 497(1), Cr.P.C.---Bail was refused to accused in circumstances.

Sh. Najam ul Hassan for Petitioner.

Munir Ahmad Bhatti for the Complainant.

Ch. Jamshed Hussain, D.P.G. along with Akram Khan S.-I. with record.

2008 M L D 9

[Lahore]

Before Ijaz Ahmad Chaudhry, J

BASHIR AHMAD---Petitioner

Versus

S.H.O. and 5 others---Respondents

Writ Petition No. 10503 of 2007, decided on 26th October, 2007.

(a) Criminal Procedure Code (V of 1898)---

----S. 154---Penal Code (XLV of 1860), S.302---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Registration of second F.I.R.---Petitioner's son had married the daughter of the respondent against the wishes of her father and other family members---Respondents, thereafter, abducted the girl forcibly on gun point from the house of the petitioner and kept her in the house of another respondent where she was murdered---Case under S.302, P.P.C. had been registered on the statement of the father of the girl---Contention of the petitioner was that after her abduction his daughter-in-law had been murdered by all the private respondents but in order to save their skin the F.I.R. was got registered on a concocted story only against one respondent showing her as unmarried women, whereas all the respondents were responsible for her murder---Petitioner had approached the S.H.O. for the registration of the case against all the private respondents but in vain---Petitioner thereafter, moved the Justice of Peace for registration of the case who had dismissed his application only on the ground that registration of second F.I.R. would complicate the matter---Validity---Such approach was not proper---F.I.R. sought to be registered could not be refused keeping in view the peculiar facts and circumstances of the case, as prima facie cognizable offence was made out from the perusal of the contents of the application and second F.I.R. could be registered---Preliminary inquiry could not be conducted and the S.H.O. was bound to register the F.I.R. in a case of cognizable offence---S.H.O. was consequently directed to record the statement of the petitioner under S.154, Cr.P.C. and proceed further in accordance with law---Constitutional petition was accepted accordingly.

Muhammad Anwar's case PLD 1999 Lah. 50; Ghanwa Bhutto's case PLD 1997 Kar. 119 and Muhammad Bashir v. The State PLD 2007 SC 539 ref.

(b) Criminal Procedure Code (V of 1898)---

----S. 154---Registration of F.I.R.---Preliminary inquiry cannot be conducted and S.H.O. is bound to register the F.I.R, in a case of cognizable offence.

Muhammad Bashir v. The State PLD 2007 SC 539-ref.

Messrs Ghulam Hussain Awan and Syed Gul Shad Hussain Shamsi for Petitioner.

2008 M L D 15

[Lahore]

Before Khawaja Muhammad Sharif, J

REHANA KAUSAR---Petitioner

Versus

IJAZ AHMAD and 2 others---Respondents

Criminal Miscellaneous No. 6875-CB and 7439-CB of 2007, decided on 25th October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Prevention of Corruption 'Act (II of 1947), S.5'--Penal Code (XLV of 1860), Ss.420/468/471/109---Cancellation of pre-arrest bail, refusal of---No evidence was available on record to show that the deceased, who was father of both the parties, had suffered an heart attack and was taken to hospital by the accused who had got his thumb impressions and signatures on the gift deed---No eye-witness of the said incident was available---Thumb impressions on the gift deed, according to the report of Handwriting Expert, were of the deceased, while his signatures did not tally with the signatures on his bank account, identity card and passport---Recovery had been effected and challan had been submitted in the Court---Accused were not alleged to have misused the bail granted to them---Petitions for cancellation of pre-arrest bail were dismissed in circumstances.

Muhammad Yousaf v. Senior Special Judge, Anti-Corruption and others CPLA No.474-L of 2006 and Rafique Bibi v. Muhammad Sharif and others C.P. No.84-L of 2006 ref.

Malik Allah Yar Khan for Petitioner.

Syed Afzaal Haider Naqvi for Respondents.

Ch. Jamshaid Hussain, Dy. Prosecutor General with Tariq Maqsood, Inspector/Circle Officer, Anti-Corruption, Lahore.

2008 M L D 19

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

MUHAMMAD QASIM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 7369-B of 2006, decided on 25th October, 2007.

Criminal Procedure Code (V of 1898)--

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c)/15---Bail, grant of---Although the offence allegedly committed by the accused was grave in nature but he was behind the bars for the last more than two years without any tangible progress in the trial---Right to life and liberty was a fundamental right guaranteed by the Constitution to a citizen which included the right of accused to a speedy trial---Accused could not be detained in jail for an indefinite period without a trial contrary to the Constitution and law---Co-accused had been allowed bail by High Court on the ground of delay in the trial---Accused was admitted to bail in circumstances.

Gull Zaman v. The State 1999 SCMR 1271 rel.

Kashif Javed Chaudhry for Petitioner.

Rana Sohail Iqbal Khan for ANF Respondent.

2008 M L D 21

[Lahore]

Before Mian Hamid Farooq, J

RAZAI MUSTAFA through (Special Attorney)---Petitioner

Versus

MUHAMMAD SIDDIQUE---Respondent

Civil Revision 1907 of 2007, decided on 11th October, 2007.

(a) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Pre.-emption suit---Talb-i-Muwathibat, performance of---Mentioning in plaint only date of performance of such Talb, but non-mentioning therein as to how, where, when and from whom plaintiff acquired knowledge of sale---Effect---Mentioning of date, time and place of performance of such talb in plaint was mandatory for plaintiff---Suit was liable to be dismissed on such omission.

Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs and others PLD 2007 SC 302 fol.

(b) Punjab Pre-emption Act (IX of 1991)---

----Ss. 13 & 30(a)---Registration Act (XVI of 1908), S.60---Pre-emption suit---Sale through registered deed, dated 25-4-2000---Performance of Talb-i-Muwathibat on 16-6-2000---Plea of plaintiff was that sale was kept secret from him; that he came to know of sale on 16-6-2000 and performed such Talb---Proof---Plaintiff did not explain in plaint as to how and by which manner such registered sale was kept secret from him---Plaintiff in cross-examination. stated that sale took place 7/8 days prior to 16-6-2000; that he came to know of sale after one or two days of sale---Held, registered sale-deed would be presumed to be a notice to public at large-Plaintiff had failed to perform such talb within time as required by law---Suit was dismissed in circumstances.

(c) Registration Act (XVI of 1908)---

----S. 60---Registered sale-deed would be presumed to be a notice to public at large.

(d) Civil Procedure Code (V of 1908)---

----S. 115---Revision---Concurrent findings of facts---Reappraisal of evidence by High Court---Scope---High Court would not be required to undertake such exercise if such findings, were based on evidence, and would not be interfered in exercise of jurisdiction under S.115, C.P.C.---Principles.

Abdul Rahim and another v. Mst. Janatay Bibi and others 2000 SCMR 346; Anwar Zaman and 5 others v. Bahadur Sher and others 2000 SCMR 431; Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647; Altaf Hussain v. Abdul Hameed and Abdul Majeed through legal heirs and another 2000 SCMR 314; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rashid Ahmad v. Muhammad Siddique PLD 2002 SC 293 rel.

(e) Civil Procedure Code (V of 1908)---

----S. 115---Revision---Findings on question of fact or law recorded by Courts below---Validity---Such findings, unless suffering from jurisdictional defect, illegality or material irregularities, could not be interfered in revisional jurisdiction.

Muhammad Rafique v. Aamer Shahzad and others 1999 YLR 610 rel.

Zulfiqar Ali Dhuddi for Petitioner.

2008 M L D 26

[Lahore]

Before Khawaja Muhammad Sharif, J

ROHEEL SANI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 7535-B of 2007, decided on 25th October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.392/411---Bail, refusal of---Complainant in whose clinic robbery had been committed had on the same day implicated the accused in the case in his supplementary statement---Mobile phone had been recovered from the accused which he claimed to be his own, but he could not produce any receipt thereof---Accused was also involved in three or four other cases of similar nature---Complainant had no malice against the accused---Such like cases were on the peak these days and nobody could be allowed to repeat the offence---Bail was declined to accused in circumstances.

Muhammad Ishnaq Sahou for Petitioner.

Ch. Jamshaid Hussain, Dy. Prosecutor General with Muhammad Sarwar, S.-I. for State.

2008 M L D 27

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD SHAHBAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 6828-B of 2007, decided on 29th October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/109/34---Bail, grant of---Occurrence narrated in the F.I.R., no doubt, was horrifying and chilling, but while, passing a judicial decision Court had to detach itself from the emotions and jitters created by the documents or narration of the events by the parties---Accused was not named in the FIR., but was involved through a supplementary statement made after an unexplained delay of five days; which even did not disclose the date, time and motive of the conspiracy allegedly hatched by the accused---Accused had no relations with the co-accused who were directly involved in the occurrence---No incriminating material was available to show any reason for involvement of accused as an, abettor and no recovery of any kind had been effected from him---Witnesses of the abetment story were close relatives of the complainant, who had tried to make up deficiencies in the supplementary statement---Offences against the accused fell within the prohibitory clause of S. 497(1), Cr.P.C., but in view of the aforesaid reasons sufficient grounds were available for further inquiry into his guilt---Bail was allowed to accused in circumstances.

Nazir Ahmad Ghazi for Petitioner.

Muhammad Asim Sheikh for the Complainant.

Asif Mehmood Cheema, Deputy Prosecutor General, Dil Nawaz, A.S.-I. for the State.

2008 M L D 30

[Lahore]

Before Maulvi Anwarul Haq, J

SHABBIR HUSSAIN SHAH---Petitioner

Versus

FAZAL DIN and 4 others---Respondents

Civil Revision No. 1832 of 2007, decided on 4th October, 2007.

(a) Specific Relief Act (I of 1877)---

----S. 12---Limitation Act (IX of 1908), Art. 113---Suit for Specific performance of sale agreement---Limitation---Agreement was to be performed within three months of date of its execution---Suit filed after twelve years of such three months---Validity---For attracting provision of First Part of Art. 13 of Limitation Act, 1908, date fixed for performance of agreement had to be a date by calendar i.e. agreement had to be performed by a particular date---Suit was not barred by time in circumstances.

Inam Naqshbandi v. Haji Sheikh Ijaz Ahmed PLD 1985 SC 314, fol.

(b) Civil Procedure Code (V of 1908)---

----O.VII, R.11(c)---Non-payment of Court-fee according to value of suit fixed in plaint---Rejection of plaint---Validity---Trial Court had rejected plaint without assessing court-fee, giving a direction thereafter to plaintiff to pay same and his consequent failure to do so---Impugned order was set aside in circumstances.

Sh. Naveed Shahryar for Petitioner.

2008 M L D 32

[Lahore]

Before M. Bilal Khan, J

NINA---Petitioner

Versus

THE STATE and another---Respondents

Writ Petition No. 10296 of 2007, decided on 23rd October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 499---Penal Code (XLV of 1860), Ss.371-A/372-B---Foreigners Act (XXXI of 1946), S.14---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Non-acceptance of bail bonds by Trial Court---Validity---After the order of her release on bail by the Magistrate when the accused submitted her bail bonds the same were not accepted by the Trial Court for the reason that during investigation Investigating Officer had also invoked S.14 of the Foreign Act, 1946, and Robkar for release of the accused only under Ss. 371-A and 372-B, P.P.C. could not be issued---Another ground on which the Magistrate refused to accept the bail bonds was that bail had been granted to accused under Ss. 371-A and 372-B, P.P.C. subject to her legal entry and stay in Pakistan and that she had already overstayed in the country---If S. 14 of the Foreigners Act, 1946, had been added in the array of offences, accused could make an application to the Special Judge (Central) for her bail---However, bail bonds could not have been refused merely for the reason that the aforesaid section had been invoked, as offences in which bail had been allowed remained triable by the Magistrate---Likewise if the accused had already overstayed in Pakistan against the Visa stipulations, the law would take care of such circumstance itself---Magistrate was directed to entertain the bail/surety bonds of the accused under Ss.371-A and 372-B, P.P.C. and to deal with the same strictly in accordance with law---Constitutional petition was disposed of accordingly.

Ch. Abdul Waheed for Petitioner.

Muhammad Iqbal Chaudhry, Deputy Prosecutor-General on Court's call for the State.

2008 M L D 34

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

MUHAMMAD SALEEM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1473 and Murder Reference No. 582 of 2006, heard on 22nd October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 345---Penal Code (XLV of 1860), S.302(b)---Compromise, acceptance of---Legal heirs of the deceased had forgiven the accused in the name of Almighty Allah and had waived their right of Qaisas and Diyat and they had no objection to the acquittal of accused in the case---Compromise between the parties was genuine and was in their best interest which would also advance public policy by shortening litigation and blood feud---Permission to compound the offence was consequently granted and the accused was acquitted of the charge accordingly.

Sh. Muhammad Waqas for Appellant.

Mazhar Sher Awan, Addl. Prosecutor General for the State.

Date of hearing: 22nd October, 2007.

2008 M L D 35

[Lahore]

Before M. Bilal Khan, J

ATTA MUHAMMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 7509-B of 2007, decided on 23rd October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.376---Bail, grant of---Delay of seven days in lodging the F.I.R. was not plausibly explained---Story as narrated in the FIR, prima facie, was quite fanciful as in our society it would be too much to expect a woman to facilitate and assist her husband in committing Zina with another woman---Prosecution story must have a ring of truth and must not loose its connection to reality---Prosecution story needed to be put to scrutiny during the trial and thus called for further inquiry within the meaning of subsection (2) of S.497, Cr.P.C. especially so when the wife of accused had been found innocent in police investigation---Trial had not yet commenced---Accused was admitted to bail in circumstances.

Mian Shahid Rasool for Petitioner.

Muhammad Iqbal Chaudhry D.P.G. for the State.

Iftikhar Ahmad, P.S. Rajana District Toba Tek Singh with police file.

2008 M L D 42

[Lahore]

Before Syed Asghar Haider, J

NAJAM AZIZ SETHI---Appellant

Versus

MUHAMMAD AZEEM BUTT---Respondent

F.A.O. No. 384 of 2006, heard on 3rd October, 2007.

(a) Cantonments Rent Restriction Act (XI of 1963)---

----S. 17(9)---Income Tax Ordinance (XLIX of 2001), S.155---Tentative rent order directing tenant to deposit monthly rent @ Rs.55,000---Deposit of Rs.52,250 by tenant after deducting income tax at source under 5.155 of Income Tax Ordinance, 2001---Striking off defence of tenant by Rent Controller for non-complying with such order---Validity---No confusion and ambiguity existed in terms of such order---Bounden and cardinal duty of tenant was to adhere to such directions and pay rent as directed---Term "prescribed person" as defined in the Income Tax Ordinance, 2001, would mean Federal or Provincial Government, Local Authority, company, non-profit organization or diplomatic mission of foreign State---Tenant being a private person not falling within category of "prescribed person", could not claim benefit of 5.155 of Income Tax Ordinance, 2001 and deduct income tax at source---Tenant had failed to deposit rent in stated amount---Adherence to such order must be unconditional, complete and without reservation---Provisions of S.17(9) of Cantonments Rent Restriction Ordinance, 1963 were mandatory---Rent Controller had no option, but to invoke penal provisions of S.17(9) of Cantonments Rent Restriction Ordinance, 1963---Impugned order was unexceptionable---High Court dismissed appeal.

Ashiq Ali and another v. Mehar Elahi and 13 others 2001 SCMR 130; Qureshi Industries v. Karachi Development Authority 1993 Karachi 553; Saleem Ahmad v. Additional District Judge and others 1992 CLC 1531; Zikar Muhammad v. Mrs. Arifa Sabir and another 2000 SCMR 1328; M.H. Mussadaq v. Muhammad Zafar Iqbal and another 2004 SCMR 1453; Muhammad Ilyas v. Asfaque Hussain 1992 MLD 1577 and Khadim Hussain v. Nasir Ahmad 2003 SCMR 1580 ref.

Safeer Tarvels (Pvt.) Ltd. v. Muhammad. Khalid Shafi PLD 2007 SC 504 rel.

Muhammad Alam v. Noor Muhammad 1973 SCMR 606; Mehrban Ali v. Haji Muhammad Qasim PLD 1976 Lahore 1052; Muhammad Shafi v. Iqbal Ahmad and another PLD 1965 Lahore 23; Major Feroze Din Khan and others v. Sh. Muhammad Amin PLD 1967 Lahore 966; Sultan Textile Mills (Karachi) Ltd., Karachi v. Muhammad Yousaf Shami PLD 1972 Karachi 226; Amir Ali v. Mrs. Alima Ahmad -PLD 1981 Karachi 150; Muhammad Siddique v. Abdul Rasheed 1982 CLC 217; Ghulam Adamali Jeevaji v. N. Hassan Ali and Co. PLD 1984 Karachi 373; L. Hussain v. Muhammad Nawab and 4 others PLD 1992 Karaehi 307; Niaz Muhammad and another v. Waris Hussain and 2 others 2004 YLR 1266; Safeer Travels (Pvt.) Ltd. v. Muhammad Khalid Shafi PLD 2007 SC 504; 1998 SCMR 970; Noor Muhammad v. Medhi PLD 1991 SC 711; Mehboob Jewellers and others v. Nur Ahmad (1989 SCMR 1327 and A.S.K. Samand v. A. Hussain and another 1987 SCMR 1013 distinguished.

(b) Cantonments Rent Restriction Act (XI of 1963)----

----S. 17(9)-Order of Rent Controller directing deposit of rent---Duty of tenant---Provisions of S.17(9) of Cantonments Rent Restriction Ordinance, 1963 were mandatory---Adherence to such order must be unconditional, complete and without reservation.

Safeer Tarvels (Pvt.) Ltd. v. Muhammad Khalid Shafi PLD 2007 SC 504 rel.

Ch. Fawad Hussain for Appellant.

Waqar Arif Khan for Respondent.

Date of hearing: 3rd October, 2007.

2008 M L D 48

[Lahore]

Before Tariq Shamim, J

MEHMOOD KHALID---Petitioner

Versus

PRESIDENT, PAKISTAN FOOTBALL FEDERATION, FOOTBALL HOUSE and 7 others---Respondents

Writ Petition No. 7075 of 2007, heard on 14th September, 2007.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Announcement of schedule of election of Federal Sports Federation Congress---Secretary, Provincial Association challenging such schedule through constitutional petition---Locus standi---Petitioner was elected as Secretary of Association on a date, when injunctive order of High Court suspending his election was in force---Petitioner was not a duly elected Secretary, thus, was not eligible to contest election of Federal Sports, Federation Congress---Petitioner had no legal right to challenge such schedule---Petitioner without exhausting remedy provided under law had approached the High Court, constitutional petition was dismissed in circumstances.

Rao Munawar Khan for Petitioner.

Kh. Haris Ahmed for Respondents.

Date of hearing: 14th September, 2007.

2008 M L D 51

[Lahore]

Before Khawaja Muhammad Sharif, J

THE STATE---Petitioner

Versus

ABDUL SALAM ALVI and others ---Respondents

Criminal Revisions Nos. 944, 1056, 1057 and Criminal Appeal No. 1258 of 2003, decided on 25th October, 2007.

Penal Code (XLV of 1860)---

---Ss. 324/149, 337-F(iii), 337-F(i) & 148---Enhancement of sentence, refusal of---Out of fourteen accused persons named in the F.I.R. nine had been acquitted and five, present respondents, had been convicted and sentenced by Trial Court, whose sentences were sought to be enhanced---State had not challenged the acquittal of the aforesaid nine accused---Trial Court had also acquitted the accused respondents from the charge under S.7 of the Anti-Terrorism Act, 1997, for cogent reasons---Motive, and recoveries of the weapons from the accused had been disbelieved by the Trial Court---Appeals against the acquittal of accused in offences under the Surrender of Illicit Arms Act, 1991, had already been dismissed by High Court---Accused had served out their entire sentences and had also paid the amounts of Daman---Six years had gone by from the date of occurrence---Greater number of accused persons as compared to present accused respondents, had already been acquitted by the Trial Court on the basis of same evidence---Enhancement of sentences of accused at such stage was not proper in circumstances---Revision petitions were dismissed accordingly.

PLD 1985 SC 11 ref.

Ch. Jamshaid Hussain, D.P.G. with Attaullah S.-I. for the State.

Munir Ahmed Bhatti, Naveed Inayat Malik and Ch. Saeed Ahmad for Respondents.

Malik Abdul Wahid for the Complainant.

Dates of hearing: 22nd, 11th, 25th October, 2007.

2008 M L D 60

[Lahore]

Before Ijaz Ahmad Chaudhry, J

AKRAM ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 7495-B, of 2007, decided on 17th October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.406/506---Pre-arrest bail, grant of---Story narrated in the F.I.R. was prima facie, falsified by the contents of the agreement to sell that the earnest amount of Rs.3,00,000 was given as trust---Civil Court only was competent to adjudicate upon the matter between the parties for the performance of agreement to sell in dispute---Registration of the case seemed to be mala fide---Civil dispute had been converted into criminal offence---Criminal machinery could not be used as a tool to put pressure upon the other party---Courts had to see whether sufficient material was available on record to connect the accused with the alleged crime---Purpose of criminal litigation was not to humiliate the opposite party---Prima facie, no offence was made out against the accused---Ad interim pre-arrest bail granted to accused was confirmed in circumstances.

Ch. Zulifqar Ali Wahla for Petitioner.

Syed Faisal Raza Bokhari, Deputy Prosecutor General for the State.

Muhammad Hanif, A.S.-I. with record.

2008 M L D 70

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD RIZWAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 7499-B of 2007, decided on 26th October, 2007.

Criminal Procedure Code (V of 1898)---

---S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Complainant though claimed himself to be an eye-witness of the occurrence, yet he had made three different versions naming three accused persons at different occasions, one in the F.I.R. and the other two in two supplementary statements---Accused was named in the second supplementary statement which according to complainant had been made by him after thorough checking and inquiry---Case, thus, was one of three versions and needed further inquiry qua the guilt of accused within the meaning of S.497(2), Cr.P.C.---Charge had been framed in the case and the same had been fixed for evidence--Bail was allowed to accused in circumstances.

Manzoor and 4 others v. The State PLD 1972 SC 81; Amir v. The State PLD 1972 SC 277 and Tariq Bashir and 5 others v. The State PLD 1995 SC 34 rel.

Mubashir Ahmad Othi for Petitioner.

Mian Muhammad Bashir for Complainant.

Ch. Jamshaid Hussain, Dy. Prosecutor General with Liaqat Ali, A.S.-I.

2008 M L D 72

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD AKRAM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2033-B of 2007, decided on 9th October, 2007.

Criminal Procedure Code (V of 1898)----

----S. 497(2)-Penal Code (XLV of 1860), Ss.496-A/496-B/380---Bail, grant suffered from an inordinate delay of eighteen days---Abductee on the very day of alleged occurrence, after appearing before a Magistrate, made a prayer to lodge her in "Darul Aman" as she apprehended danger to her life at the hands of her husband and she was staying there uptil now---Alleged abductee, in her statements before the police under S.161, Cr.P.C. and before the Magistrate under S.164, Cr.P.C. had disowned the contents of the F.I.R.---Case against accused, thus, required further inquiry within the meaning of S.497(2), Cr.P.C.---Accused was allowed bail in circumstances.

Muhammad Abdul Wadood for Petitioner.

Nadir Manzoor Duggal, Deputy Prosecutor General with Maqbool, S.-I.

Makhdoom Mashoq Hussain Shah for the Complainant.

2008 M L D 81

[Lahore]

Before Mian Hamid Farooq, J

KHADIM HUSSAIN---Petitioner

Versus

RASHEED AHMAD and another---Respondents

C.R. 2048 of 2003, decided on 8th October, 2007.

(a) Civil Procedure Code (V of 1908)---

----Ss. 115 & 96---Two pre-emption suits regarding two separate sales by same vendor in favour of different vendees---Dismissal of both suits by Trial Court and Appellate Court---Plaintiff's plea was that Trial Court recorded evidence in one suit, which was copied in other suit---Validity---Such plea raised for first time before Revisional Court had not been raised by plaintiff before Appellate Court---Such act of Trial Court had not prejudiced plaintiff---Litigant could not be allowed to raise altogether a new and different plea before Appellate/Revisional Court, which had not been raised before lower forums--High Court dismissed revision petition in circumstances.

Haji Feroze Khan and another v. Amir Hussain through L.Rs. and others 2004 SCMR 1719 ref.

Anwar Ali and others v. Manzoor Hussain and another 1996 SCMR 1770 and Amir Shah v. Ziarat Gul 1998 SCMR 593 rel.

(b) Civil Procedure Code (V of 1908)--

----Ss. 115, 96 & 100---Plea not raised before Courts below---Effect---Litigant could not be allowed to raise a new and different plea before Appellate/Revisional Court.

Anwar Ali and others v. Manzoor Hussain and another 1996 SCMR 1770 and Amir Shah v. Ziarat Gul 1998 SCMR 593 rel.

(c) Punjab Pre-emption Act (IX of 1991)---

----Ss. 13 & 30(a)---Registration Act (XVI of 1908), S. 60---Pre-emption suit---Sale through registered deed---Talb-i-Muwathibat and Talb-i-Ishhad, performance of---Proof---Informer's statement in court that prior to hearing from him about sale, pre-emptor pronounced his intent to pre-empt sale---Validity---Such statement would show that pre-emptor had already knowledge about sale---Registered sale-deed would be presumed to be notice to public---Informer could not tell as to when sale was made---Pre-emptor had failed to prove Talb-i-Muwathibat, thus performance of Talb-i-Ishhad would lose its sanctity---Suit was dismissed in circumstances.

(d) Registration Act (XVI of 1908)---

---S. 60---Registered sale-deed would be, presumed to be a notice to public.

(e) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Talb-i-Muwathibat, non-proving of---Effect---Performance of Talb-i-Isshad would lose its sanctity.

(f) Civil Procedure Code (V of 1908)---

---S. 115---Revision---Findings on question of fact or law recorded by Courts below---Validity---Such findings, unless suffering from jurisdictional defect, illegality or material irregularities, could not be interfered in revisional jurisdiction.

Muhammad Rafique v. Aamer Shahzad and others 1999 YLR 610 rel.

(g) Civil Procedure Code (V of 1908)---

---S. 115---Revision---Concurrent findings of facts---Validity---Such findings, if based on evidence, would not be interfered in exercise of jurisdiction under S.115, C.P.C---Principles.

Abdul Rahim and another v. Mst. Janatay Bibi and others 2000 SCMR 346; Anwar Zairian and 5 others v. Bahadur Sher and others 2000 SCMR 431; Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647; Altaf Hussain v. Abdul Hameed and Abdul Majeed through legal heirs and others 2000 SCMR 314; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rashid Ahmad v. Muhammad Siddique PLD 2002 SC 293 rel.

Zafar Iqbal Mirza for Petitioner.

Arshad Malik Awan for Respondents.

2008 M L D 86

[Lahore]

Before Sh. Azmat Saeed, J

Major (R.) Sheikh IJAZ AZIZI---Petitioner

Versus

BABAR NAWAZ RAJA and another---Respondents

Writ Petition No. 4762 of 2006, decided on 29th May, 2006.

Constitution of Pakistan (1973)---

---Art. 199-Constitutional petition---Constitutional petition was directed against an interim order---Impugned order was neither arbitrary nor capricious---No jurisdictional defect having been pointed out, High Court declined interference in the matter---Constitutional petition being misconceived, was dismissed.

Khurram Mir for Petitioner.

Iqbal Ahmad Khan for Respondent No.2.

2008 M L D 87

[Lahore]

Before Khawaja Muhammad Sharif, J

MAHMOOD AHMED---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, GUJRANWALA and 2 others---Respondents

Criminal Miscellaneous No.36-Q of 2005, decided on 19th December, 2005.

Allopathic System (Prevention of Misuse) Ordinance (LXV of 1962)---

----S. 10---Criminal Procedure Code (V of 1898), S.561-A---Quashing of proceeding---Respondent was not competent to lodge the complaint according to S.10 of the Allopathic System (Prevention of Misuse) Ordinance, 1962 and also according to the letter issued by Chief Secretary, Government of Punjab, Health Department to all the Commissioners and Deputy Commissioners in the Punjab, dated 15th July, 1997, because six months had expired in December, 1997, while the complaint was lodged on 9-12-1999 and at that time there was no order either from District Health Officer or Deputy District Health Officer and no Notification by the Federal Government or by the Provincial Government in this regard---Said letter could not be used retrospectively---Impugned orders were consequently set aside and the proceedings pending against the accused before the Magistrate were quashed---Petition was accepted accordingly.

Muhammad Akram Javaid for Petitioner.

Muhammad Sharif Butt with Abdul Rauf Farooqi for Respondent No.3.

Ch. Muhammad Hanif Khatana Addl. A.G.

2008 M L D 89

[Lahore]

Before Maulvi Anwarul Haq, J

PROVINCE OF PUNJAB and others---Petitioners

Versus

MIRAJ DIN and others---Respondents

Civil Revisions Nos.2365 to 2367 of 2006, heard on 20th December, 2006.

Colonization of Government Lands (Punjab) Act (V of 1912)---

----Ss.10 & 30---Allotment of land under temporary 15 years cultivation scheme---Conferment of proprietary rights---Lands in dispute were allotted to respondent under temporary 15 years cultivation scheme in 1979---Halqa Patwari in his examination in chief had stated that at the time of allotment of the lands to the respondent, lands were beyond three miles from prohibited zone, but at the time of conferment of proprietary rights, it was shown within five miles limit prescribed in the notification---Location of land for the purpose of conferment of proprietary rights, was to be determined with reference to the date of allotment and not to the date of decision when proprietary rights were conferred---In the present case decision was taken vide notification dated 3-9-1979 and land was beyond the prohibited zone at the time of allotment; it could not be said in circumstances that impugned judgments and decrees suffered from any defect of law or jurisdiction within the meaning of S. 115, G.P.C.---Revision was dismissed.

Province of Punjab through District Collector, Vehari v. Ghulam Muhammad 1994 SCMR 975 ref.

Muhammad Nawaz Bajwa, A.A.-G. for Petitioners.

2008 M L D 91

[Lahore]

Before Muhammad Sayeed Akhtar, J

HAFEEZ AHMED---Petitioner

Versus

CIVIL JUDGE, LAHORE---Respondent

Writ Petition No.10025 of 2003, decided on 15th July, 2007.

Civil Procedure Code (V of 1908)---

----O.XVII, R.3 & S.115---Limitation Act (IX of 1908), S.5---Constitution of Pakistan (1973), Art.199---Constitutional petition---Closing of evidence---Time-barred revision petition---Condonation of delay---Petitioner having failed to avail opportunity for adducing evidence, Trial Court closed evidence of the petitioner---Petitioner filed time-barred revision petition along with application under S.5 of Limitation Act, 1908 for condonation of delay---Appellate Court dismissed revision petition, mainly on the ground that S.5 of Limitation Act, 1908, was not applicable to revision petition---Benefit of S.5 of Limitation Act, 1908 could not be availed in revision under S.115, C.P.C. ---Revision was rightly dismissed by the Appellate Court being barred by time.

Muhammad Waris v. Muhammad Arshad and another 2001 SCMR 894; Muhammad Bashir and another v. Province of Punjab 2003 SCMR 83 and Allah Dino and another v. Muhammad Shah and others 2001 SCMR 286 ref.

S.M. Masud for Petitioner.

2008 M L D 94

[Lahore]

Before M.A. Shahid Siddiqui, J

JAVED IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 8453-B of 2005, decided on 7th December, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 459/380/394/337-A(ii)/ 337-L(ii)/411---Bail, grant of---Complainant had. not mentioned the names of the perpetrators in the F.I.R.---Prosecution could not show the basis on which the complainant had implicated the accused in the case after a delay of eleven .months---No identification parade was arranged by Investigating Officer in the case---Accused was behind the bars for the last more than ten years, but the trial had not yet concluded---Identity of accused as one of the perpetrators of crime was open to further probe and inquiry---Delay in conclusion of trial was also an important factor persuasive of releasing the accused on bail---Accused was allowed bail in circumstances.

Rao Abdul Jabbar Khan for Petitioner.

Arshad Ali Saif Qursehi for the State.

Amir Abdullah, S.I. with record

2008 M L D 95

[Lahore]

Before Muhammad Khalid Alvi, J

CITY COUNCIL---Petitioner

Versus

CHIEF ADMINISTRATOR AUQAF---Respondent

Writ Petition No. 1565 of 2005, decided on 26th September, 2006.

Constitution of Pakistan (1973)---

----Art.199---Civil Procedure Code (V of 1908), S.92---Constitutional petition---Maintainability---Remedies provided by law in the ordinary course, though were to be followed, but in a case where High Court would feel that ends of justice could not be secured by adopting ordinary modes of remedies, it could bypass the ordinary course of action and grant relief to the affected/aggrieved persons---Land in dispute had been given by the Auqaf Department to the District Government on lease for the establishment of a public park; its legality/correctness could be adequately examined by the civil court, if a suit was brought in terms of S.92, C.P.C.---Adequate and efficacious remedy being available to the petitioner, constitutional petition was not maintainable.

Naeem Ahmad v. Chief Administrator, Auqaf, Lahore and others 2004 CLC 599 and Maulana Maqsood Anwar v. Chief Administrator Auqaf and others 2003 YLR 3078 ref.

Riaz Hanif Rahi for Petitioner.

Abdul Khaliq Khan Sadozai A.A.-G. for Respondent No.2.

Shamshair Iqbal Chughtai for Respondents Nos.1 and 3 to 6.

Muhammad Junaid Khan Naib Tehsildar, R.Y. Khan.

Shabbir Hussain Mirani Naib Tehsildar.

2008 M L D 97

[Lahore]

Before Fazal-e-Miran Chauhan, J

HABIB AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2672-B of 2005, decided on 17th October, 2005.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal. Code (XLV of 1860), Ss. 337-A(iii)/337-A(i)734---Bail, grant of---Accused was declared by the DSP to be empty handed at the time of occurrence, whereas in the F.I.R. he was stated to have caused an injury on the nose of the complainant with a churner---Said churner was not recovered from the possession of accused---Accused was admitted to bail in circumstances.

PLD 1995 SC 34 and 2001 PCr. LJ 910 ref.

Altaf Ibrahim Qureshi for Petitioner.

Khalid Farooq for the Complainant assistant by Sh. Arshad Ali for the State.

Muhammad Aslam, S.-I. Police Station Fateh Shah, District Vehari, with record.

2008 M L D 99

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD RAMZAN---Petitioner

Versus

WAPDA through Chairman WAPDA House Lahore---Respondent

Writ Petition No. 1518 of 2005, decided on 6th April, 2005.

Electricity Act (IX of 1910)---

----S.24---Constitution of Pakistan (1973), Art.199---Constitutional petition---Disconnection of electric supply of tubewell---Petitioner felt aggrieved of a bill sent to him by the WAPDA, challenged same by filing a suit which having concurrently been dismissed by the Trial Court and Appellate Court---Petitioner had filed constitutional petition with the grievance that on dismissal of the suit, WAPDA disconnected the supply without serving notice in violation of S.24 of Electricity Act, 1910---Validity---Transformer was fixed when the connection was provided and it was still working---WAPDA had no justification to demand further charges, when all the dues had been paid by the petitioner---Allowing constitutional petition, WAPDA was directed to re-connect the Tube-well of the petitioner with the source already available.

Tariq Zulifqar Ahmad Chaudhry for Petitioner.

Abdul Razzaq Raja with M. Saddiq XEN Wapda Burewala Respondent No.2 in person.

Date of hearing: 6th April, 2005.

JUDGMET

MAULVI ANWARUL HAQ, J.---The father of the petitioner obtained a electricity connection to run a Tubewell. After the death of the father, connection was being utilized by the petitioner. He felt aggrieved of a bill sent to him by the respondent in the month of October, 2000 and challenged the same by filing a suit. The amount found to be due was paid by the petitioner. The suit as well as the first appeal was dismissed. The grievance being made out in this writ petition is that on dismissal of the suit on 23-4-2003 the respondents disconnected the supply on 25-4-2003 without serving a notice in violation of section 24 of the Electricity Act, 1910.

2008 M L D 100

[Lahore]

Before Jawwad S. Khawaja, J

MUHAMMAD SHAFI---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Revision No. 68 of 2006, heard on 31st May, 2006.

Civil Procedure Code (V of 1908)---

----S.115---Revision petition---Counsel for respondent had pointed out that facts had deliberately been concealed from the court by the petitioner---Impugned order passed by the Appellate Court was based on a consideration of the second part of Local Commission, but said second part had not been filed by the petitioner with the revision petition---No explanation was given by the petitioner as to why such material facts had not been brought to the notice of the court at the stage of admission hearing---Such conduct on the part of petitioner, was by itself sufficient to decline discretionary revisional jurisdiction in the case.

Syed Nazir-ul-Hasnain for Petitioner.

Ch. Muhammad Nawaz Bajwa, A.A.-G. with Ch. Muhammad Azeem and Muhammad Ramzan Wattoo for Respondents Nos. 4 to 6.

Date of hearing: 31st May, 2006.

JUDGMET

JAWWAD S. KHAWAJA, J.---At the very outlet the learned counsel for the private respondents has pointed out that facts have deliberately been concealed from the Court by the petitioner. To substantiate his assertion, he has referred to the fact that a learned Bench of the High Court had earlier remanded the matter to the learned District Court. After remand, the learned District Court had appointed a Local Commission for site inspection. The impugned order passed by the learned Appellate Court is based on a consideration of the second part of the Local Commission. This second report has not been filed with the present petition. On the contrary, the admitting order, dated 5-4-2006 will show that one of the reasons which prevailed with me for admitting the petitioner to regular hearing was the earlier report of the Local Commission which alone was mentioned by learned counsel for the petitioner and facts mentioned therein.

2008 M L D 102

[Lahore]

Before Ijaz Ahmad Chaudhry, J

LIAQAT ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1428-B of 2005, decided on 27th July, 2005.

Criminal Procedure (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/34---Bail, grant of---Accused was empty handed while co-accused were armed with pistols---Question as to whether the accused had shared common intention with co-accused in commission of offence needed further inquiry---Accused had not caused any injury to the deceased and the only injury allegedly caused by him to a prosecution witness fell within the purview of S.337-A(ii), P.P.C. which was a bailable offence---Accused was behind the bars for the last more than ten months and he could not be kept in jail for an indefinite period, as the trial was not likely to conclude in the near future---Bail could not be withheld as a punishment---Bail was allowed to accused in circumstances.

PLD 1992 SC 81 ref.

M. Mahrban Ranjha for Petitioner.

Waseem Khan Babar for the State.

Muhammad Aslam S.-I. with record.

2008 M L D 103

[Lahore]

Before Sh. Javaid Sarfraz and Fazal-e-Miran Chauhan, JJ

FALAK SHER---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1 of 2005 in Criminal Appeal No.810 of 2004, decided on 20th September, 2005.

Criminal Procedure Code (V of 1898)---

----S. 426---Control of Narcotic Substances Act (XXV of 1997), S. 9(b)---Suspension of sentence---Sentence awarded to accused by Trial Court was a short one (four years) and out of the same he had served part of sentence---Appeal was not likely to be heard in the near future---Possibility was that by the time the appeal was fixed for hearing and was decided, the accused would have served his entire sentence---Sentence of accused was suspended in circumstances and he was released on bail accordingly.

Abdul Hameed v. Muhammad Abdullah and other 1999 SCMR 2589 rel.

Altaf Ibrahim Qureshi for Petitioner.

Rao Atif Nawaz for the State.

2008 M L D 105

[Lahore]

Before Maluvi Anwarul Haq, J

MUNIR AHMAD---Appellant

Versus

FIAZ MUSHTAQ and 4 others---Respondents

Second Appeal from Order No. 108 of 2007, decided on 11th September, 2007.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(3)(a)(ii)(b)---Personal bona fide need of landlord---Statement of landlord that he was doing business in a rented shop---Plea of tenant that landlord had not explained insufficiency of rented shop for his need--Validity---Landlord was required to render explanation only regarding a building owned and possessed by him, but he was not obliged to explain possession of a rented shop.

Abdul Aziz and another v. Muhammad Ibrahim PLD 1977 SC. 442 ref.

Muhammad Rafique Chaudary-I for Appellant.

2008 M L D 106

[Lahore]

Before Jawwad S. Khawaja, J

PATRAS MASIH---Petitioner

Versus

PROVINCE OF PUNJAB and others---Respondents

Civil Revision No. 694 of 2006, decided on 24th May, 2006.

Canal and Drainage Act (VIII of 1873)---

----S.20---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2---Irrigation of' land from outlet---Interim relief---Land owned by the plaintiffs was irrigated from specified outlet---Defendants, who were also landowners and were getting their irrigation water from other outlets also filed application for transferring their land to the same outlet from which plaintiffs were irrigating their land---Said application was allowed by the Divisional Canal Officer vide impugned order which was confirmed by Superintending Canal Officer---Plaintiffs filed a suit challenging said order and along with their suit, filed application under O.XXXIX, Rr.1 & 2, C.P.C., praying for interim relief against the implementation of said orders---Contention of plaintiffs was that they had not received any notice as required under S.20 of Canal and Drainage Act, 1873, either before passing of impugned order or at the time of confirmation thereof--Plaintiffs, admittedly were not served any notice before the passing of impugned order and when confirmatory order was passed---Application filed by plaintiffs under O.XXXIX, Rr.1 & 2, C.P.C. was allowed and orders passed by courts below, were set aside.

Ziaullah Khan Niazi for Petitioner.

Muhammad Nawaz Bajwa and Imtiaz Hussain Khan for Respondents Nos. 5 to 9.

Date of hearing: 24th May, 2006.

2008 M L D 109

[Lahore]

Before Mian Hamid Farooq, J

GHULAM MUHAMMAD---Appellant

Versus

ABDUL GHAFFAR---Respondent

F.A.O. No. 39 of 2005, decided on 13th September, 2007.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr. 2, 3, 4, 0. IX, R. 13, & O. V, R. 20---Suit for recovery of money on basis of promissory note---Leave to appear and defend suit---Ex parte decree, setting aside of---Passing of ex parte decree on basis of publication of notice in newspaper---Plea of non-service of notices/summonses upon defendant through ordinary manner-Validity---Summonses issued to defendant were not in Form No.4, Appendix-B to C.P.C.---Summonses issued to defendant neither indicated filing of summary suit against him nor was he called upon to file within 10 days application for leave to appear and defend suit---Such publication was made under provisions of O. V, R.12, C.P.C. and not under O. XXXVII, R. 2(1) thereof---On basis of such publication it could not be said that summonses had been validly published or defendant had been legally served---Neither defendant could be proceeded ex parte nor ex parte decree could be passed against him on basis of such proclamation in newspaper---Superstructure built upon a void order would fall to the ground---High Court set aside impugned order/decree and allowed defendant to file application for leave to appear and defend suit.

Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC 104 rel.

Hafiz Khalil Ahmed for Appellant.

Ch. Ijaz Akbar for Respondent.

2008 M L D 112

[Lahore]

Before Ch. Iftikhar Hussain, J

MUHAMMAD NAZIR and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 4930-B-2003, decided on 24th September, 2003.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 337-A(iii)/109/34---Bail, grant of---Accused was named in the F.I.R., but he was empty handed at the time of occurrence and was not ascribed any injury to anyone during the commission of the offence---Injury on the head of the injured witness with blunt side of the hatchet was ascribed to co-accused and vicarious liability of accused was yet to be determined at the trial---Case against accused, thus, required further probe under S.497(2), Cr.P.C.---Accused was not a previous convict and was in jail for the last nine months---Bail' was allowed to accused in circumstances.

Muhammad Amir Khan Niazi for Petitioners.

Muhammad Hanif Saleemi for the State.

Altaf Hussain, A.S.-I. with police record.

2008 M L D 114

[Lahore]

Before Maulvi Anwarul Haq and Nasim Sikandar, JJ

NAJMA SUGAR MILLS LTD.---Appellant

Versus

MEGA TRADING COMPANY through Chief Executive---Respondent

R.F.A. No. 173 of 2003, heard on 30th May, 2007.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr. 2 & 3---Limitation Act (IX of 1908), Arts. 64-A & 73---Suit for recovery of amount on basis of cheques---Leave to defend suit---Issuance of post-dated cheques as a condition of agreement between parties for supply of material---Suit was filed on 17-4-2003, while first cheque was dated 15-1-2000, second cheque was dated 1-3-2000 and third cheque was dated 15-4-2000---Application for leave to defend suit raising plea that Art. 73 of Limitation Act, 1908 would govern such matter providing three years' period commencing from date of bill of exchange---Validity---Suit under O.XXXVII, C.P.C. would be governed by Art. 64-A of Limitation Act, 1908 and starting point would be when debt became payable---Suit cheques according to agreement were to be presented on the dates mentioned thereon---Question of limitation with reference to Art. 64-A of Limitation Act, 1908 could not be determined without determining question of performance of such agreement after framing of issues and recording evidence thereon---Leave to defend suit was granted subject to deposit of Rs.50,00,000 in cash by defendant and furnishing of company-guarantee by plaintiff in like amount to the satisfaction of court.

Raja Muhammad Akram for Appellant.

Mujeeb-ur-Rehman Kiani for Respondent.

Date of hearing: 30th May, 2007.

2008 M L D 118

[Lahore]

Before Mian Muhammad Najum-uz-Zazman and Rustam Ali Malik, JJ

Mst. ROBINA alias TEENA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 409 and Murder Reference No. 117 of 2000, heard on 8th July, 2004.

(a) Criminal Procedure Code (V of 1898)---

---S. 342---Power to examine accused---Statement of an accused not to be used against his co-accused---Statement of an accused recorded under S.342, Cr.P.C. can be hardly used to convict his co-accused.

(b) Penal Code (XLV of 1860)---

---S. 302(b)---Criminal Procedure Code (V of 1898), S. 342---Appreciation of evidence--Benefit of doubt---Statement of co-accused recorded under S.342, Cr.P.C. in the case could not be used against the accused---No eye-witness account of occurrence was available in the case, nor there was any extra-judicial confession or evidence of last seen---Only evidence regarding the receipt of a telephone call was not a direct evidence---Finding of guilt of accused by the Investigating Officer could not be made the basis of his conviction in the absence of sufficient . prosecution evidence to said effect---Accused was not connected with the commission of offence by any convincing evidence---Mere fact that the dead-body of the deceased was found in the house of accused did not connect her with the crime, as the deceased had been visiting her for the last 5/6 years and even on the day of occurrence he had gone to her house after receiving a telephone call from her---Prosecution evidence was replete with inconsistencies and contradictions---Accused was acquitted on benefit of doubt in circumstances.

Neem Siddique for Appellant.

Salman Safdar for the State.

Date of hearing: 8th July, 2004.

2008 M L D 132

[Lahore]

Before Syed Asghar Haider, J

MUHAMMAD RAFIQ---Petitioner

Versus

CHIEF ELECTION COMMISSIONER and 4 others---Respondents

Writ Petition No. 9694 of 2007, decided on 3rd October, 2007.

(a) Constitution of Pakistan (1973)---

----Art. 199---Civil Procedure Code (V of 1908), S.11---Constitutional petition---Res- judicata, principle of---Applicability---Such principle would apply to constitutional petition---Points/matters being substantially in issue in previous constitutional petition could not be raised in second constitutional petition---Principles.

Pir Bakhsh v. Chairman Allotment Committee and others PLD 1987 SC 145 and Abdul Majeed and others `v. Abdul Ghafoor Khan and others PLD 1982 SC 146 rel.

(b) Punjab Local Government Ordinance (XIII of 2001)---

---Ss. 84, 85 & 89---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Recall motion against Nazim of Union Council, passing of---Order of High Court passed in previous constitutional petition filed by petitioner-Nazim directing holding of recall proceedings at specified time and place---Plea of petitioner-Nazim was that he had no notice of recall proceedings; that he had been condemned Unheard---Validity---Such order of High Court was in knowledge of both parties---Non-appearance of petitioner in recall proceedings had amounted to dis­obedience of such order of High Court---Returning Officer had once adjourned proceedings on ground of illness of petitioner, but request for adjournment for second time on same ground had been refused---Returning Officer had refused to adjourn proceedings on ground of pendency of Intra-Court appeal in absence of any injunctive order---Recall motion carried by 2/3rd majority showed that petitioner had lost confidence of the House and had no right to continue as Nazim against the will of electorate---Right of hearing was qualified with attendance and could not be an excuse to perpetuate an illegality and frustrate the will of electorate---Petitioner had not disclosed in petition as to why he failed to address the House---Petitioner had been offered adequate opportunity and non-availing thereof could not frustrate recall proceedings---Nothing on record to prove mala fides---Petitioner himself had chosen to remain absent and silent---High Court dismissed constitutional petition in circumstances.

Khawaja Ahmad Hassan and others v. Government of Punjab 2005 SCMR 186 distinguished.

Ali Akbar Qureshi for Petitioner.

2008 M L D 138

[Lahore]

Before Umar Ata Bandial, J

MUHAMMAD NAWAZ and another---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 790-B of 2007, decided on 31st October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324/337-A(ii)(vi)/337-F(v)/148/149---Bail, grant of---Accused had been nominated and attributed specific roles in the FIR., but seven years had elapsed since the occurrence and police had given two contradictory versions according to its investigation---Admittedly investigation record was incomplete and was not fully reliable and therefore fresh investigation needed to be undertaken---No corroborative recovery had been effected by the police---Surrender of the weapon under the amnesty scheme of the Government by the accused did not connect them directly with the commission of the offence---No recovery was now to be made from the accused---Allegation made against the accused in the F.I.R. were not sufficient to compel their pretrial imprisonment---Accused were admitted to bail in circumstances.

Malik Sadiq Mehmood Khurram for Petitioner.

Ch. Muhammad Afzal Pansoota, A.P.G. Muhammad Sharif Bhatti for the Complainant. Sharafat, DSP Investigation.

2008 M L D 141

[Lahore]

Before Iqbal Hameed ur Rehman, J

MUHAMMAD IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1455-B of 2007, decided on 4th October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497 --Penal Code (XLV of 1860), Ss.399/402---Bail, refusal of---Prima facie, sufficient material was available on record to connect the accused with the commission of offence---Recovery of weapon had been effected from the accused, who, according to police record was a member of an organized gang of dacoits and habitual offenders involved in the car snatching crimes---Such crimes were increasing day by day---Car without any registration number had also been recovered from the accused---Accused and his co-accused had been caught red-handed while armed with deadly weapons---Accused had admitted during investigation to have snatched the said recovered car and commission of other crimes of dacoity---Offence fell within the prohibitory clause of S.497(1), Cr.P.C.---Bail was declined to accused in circumstances.

Ch. Bashir Ahmad Gojar for Petitioner.

Ch. Bashir Ahmad Bhatti, D.P.G. Noor Muhammad A.S.-I with record.

2008 M L D 147

[Lahore]

Before Sh. Hakim Ali and Iqbal Hameed ur Rehman, JJ

NOOR MUHAMMAD and others---Applicants

Versus

MUHAMMAD RIAZ KHAN and others---Respondents

Review Application No. 9 of 2005 in C.Ms. Nos.721, 722, 723 of 2003 in Civil Revision No. 348 of 1982, decided on 20th September, 2007.

(a) Civil Procedure Code (V of 1908)---

----S. 115---Dismissal of revision petition for non-prosecution after its admission for regular hearing---Scope---Revisional Court was not bound, in all circumstances, to decide petition on merits----Where petitioner defaulted in appearance and was not ready to assist Revisional Court by pointing out irregularities, illegalities or jurisdictional errors allegedly committed by subordinate Court, then Revisional Court, in its discretion, could either decide petition on merits or adjourn same or dismiss same in default of appearance---Principles.

In a civil revision filed by an aggrieved person, he has to point out illegalities, irregularities or the jurisdictional defects in the proceedings with regard to the orders passed by subordinate forums. Therefore, after a revision petition is entertained, the Court would be exercising its supervisory jurisdiction to satisfy itself as to whether jurisdiction has been exercised properly or not by the Court below. A civil revision, after it has been admitted, becomes a matter between the higher and the subordinate Court. The supervisory jurisdiction conferred upon High Court under section 115, C.P.C. can be exercised in either way in the form of acceptance, rejection or passing of any other order as the Court thinks fit vide wordings of section 115, C.P.C. itself. In other words, this is a discretionary jurisdiction vested with the Court of superior jurisdiction to correct jurisdictional wrongs or errors committed by lower Courts. But it cannot absolve the party, who has to point out the irregularities and alleged illegalities committed by the subordinate Courts, from appearing and pointing out those 'defects. If a party, who has defaulted in appearance and is not ready to point those alleged irregularities, jurisdictional defects and illegalities, which the party considers fatal to his interest and in necessary for him to get it set aside, then the party cannot blame the Court for dismissal of his civil revision. The party cannot be allowed to avail of and to take premium of his own negligence. For the negligence of a party, it is the party who should suffer for that. When a party had not appeared, then dismissal in default is in fact granting a chance and opportunity to the party to get it restored within a reasonable period of time. If the party is not ready to point those irregularities and defects in impugned order and assist the Court for that purpose, then it is within the discretion of Court to decide it on merits, adjourn it or dismiss it in default of appearance. The Court seized of the case in the given circumstances of a case would be the best Judge as to whether the civil revision might be decided on merits or not.

Muhammad Sadiq v. Mst. Bashiran and 9 others PLD 2000 SC 820; Al-Haj Muhammad Rafique v. Mst. Khalida Shehzadi 2003 CLC 559 and Syed Ashfaq Hussain Shah v. N.E.F. University of Engineering and Technology, Karachi and others 2007 SCMR 73 ref.

(b) Negligence---

----Party should suffer for his own negligence---Principles.

The party cannot be allowed to avail of and take premium of his own negligence. For the negligence of a party, it is the party, who should suffer.

(c) Civil Procedure Code (V of 1908)---

----S. 115---Revision petition dismissed for non-prosecution---Application for restoration---Petitioner's plea was that his counsel's name was not published in cause list for relevant date---Validity---Court, while adjourning case at petitioner's request, had clearly mentioned in its order that case would be fixed in specified week of month---Petitioner had to show more care and caution to obtain information with regard to fixation of his case from office of High Court---Petitioner had remained dormant for more than three years and had not contacted office of High Court---Petitioner had not explained as to why he had remained silent for three years---Such conduct of petitioner could not be considered to be bona fide on his part---Application for restoration of revision was dismissed in circumstances.

Abdul Rasheed Sheikh for Applicants.

2008 M L D 152

[Peshawar]

Before Hamid Farooq Durrani, J

ABDUL QAYYUM---Appellant

Versus

Haji BADRI ZAMAN and 4 others---Respondents

R.F.A. No. 131 of 2003, decided on 8th November, 2007.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), O.XLI, R.1---Suit for specific performance of agreement of sale---Claim of plaintiff was that defendant executed agreement of sale of suit property in his favour and received amount of consideration from him at different intervals---Plaintiff had claimed that defendant promised to execute requisite mutation of transfer deed in his favour, but instead he mutated a gift deed in favour of other persons through mutation---Defendant having failed to execute sale-deed in favour of plaintiff and to execute mutation/transfer deed, he filed suit which was dismissed by the Trial Court---Validity---Witnesses produced by plaintiff, did not fully support his claim in their depositions---Plaintiff was legally obliged to. prove his claim through solid and convincing evidence brought by him before the court and was not to be benefited from the shortcomings of opposite side---Plaintiff had not succeeded in establishing his claim before the Trial Court through cogent evidence---Material variations and contradictions on part of plaintiff also had contributed towards the failure of his suit, which was rightly dismissed 'by the Trial Court---Where the burden of proof of an alleged fact was upon appellant and said burden was not satisfactorily discharged, non-appearance of defendant in the court for recording his statement, would not adversely affect his case---Objection of plaintiff was rejected in circumstances---Two attesting witnesses having denied their presence at the time of execution of documents by the parties, evidence of plaintiff did not meet the required standard to discharge the onus lying upon him.

1990 SCMR 1259; PLD 1991 Lahore 400; 2001 SCMR 1992; 2006 YLR 2247; 2007 CLD 114; NLR 1994 AC 661; 2006 SCMR 1347; 1999 MLD 3214; 1996 CLC 741; 1979 SCMR 465; 2001 CLC 653; PLD 1986 Quetta 232; PLD 1983 Karachi 99; 2006 CLC 1680; CLC 1993 257; PLD 1983 SC 344; 2005 MLD 261; 1986 SCMR 306; 2001 SCMR 1700; MLD 1991 Lah. 1576; 2006 SCMR 1927; PLD 1988. Kar.460; PLD 1972 SC 25; PLD 1986 SC 35; 1997 SCMR 837; PLD 1971 SC 516; 2003 MLD 292; PLD 1985 Lah. 637; 1988 CLC 1608; PLD 1977 SC 109; PLD 1979 Lah. 41; 1990 CLC 1014; PLD 2004 SC 860; 2002 CLC 22; 2006 CLC 666; 2006 SCMR 470; 2006 MLD 1262; 1984 CLC 2663; 2005 SCMR 152; 2002 CLC 88; 2002 CLC 960; PLD 2006 Lah. 48; 1994 MLD 656; 2005 SCMR 135; 2006 CLC 35; 2004 MLD 341; 1992 MLD 2515; 2005 MLD 190; 2004 CLC 546; 2005 CLC 1751; PLD 2003 Pesh. 49; 2002 CLC 557; 2006 CLC 546; 2004 SCMR 578; 2005 MLD 1954; 2006 CLC 571; 2006 SCMR 690; 2003 CLC 733; 2001 CLC 1727; PLD 2003 Pesh. 90 and 2006 SCMR 562 rel.

Syed Sajjad Hassan Shah for Appellants.

Muhammad Rafique for Respondent.

Date of hearing: 14th September, 2007.

2008 M L D 159

[Lahore]

Before Sh. Azmat Saeed, J

IFTIKHAR AKBAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1827-B of 2007, decided on 1st November, 2007.

(a) Penal Code (XLV of 1860)---

----S. 489-F---Issuance of cheque subsequently dishonoured---Scope---Mere issuance of a cheque which is subsequently dishonoured does not constitute an offence under S.489-F, P.P.C., unless same is issued dishonestly and for the repayment of a loan or for discharging any obligation.

(b) Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, grant of---Section 489-F, P.P.C. nor any other provision of the Penal Code could be employed or used as a tool for effecting the recovery of a financial claim---Such being the exclusive jurisdiction of the civil Court, to permit the use of the criminal justice system for settlement of civil disputes or effecting the recovery of the amounts claimed by a party, would amount to abuse of the process of law---Even otherwise, mala fides of the police and the complainant were not only floating on the surface but leaping therefrom---Accused was in police custody in connection with another F.I.R. got registered by the complainant, when in the police station the cheque in question was procured and he had disclosed this fact on being produced before the Magistrate which. was even apparent from the order of the Magistrate---Brother of the accused had also been illegally detained who had to be recovered through judicial process---Police had acted in a mala fide manner by becoming a recovery agent of the complainant, rather than servants of the State enjoined to uphold the law---Offence did not fall within the prohibitory clause of S.497, Cr.P.C.---Cheque was already in the custody of the investigating agency and nothing was to be recovered from the accused---Ad interim pre-arrest bail granted to accused was confirmed in circumstances.

Talib Hussain v. The State 2007 PCr.LJ 1064; Ali Murtaza v. The State 2005 Cr. LJ 1773; Ghulam Qadir v. the State 2007 YLR 1495; Shahid Aziz v. The State 2007 YLR 1810; Muhammad Nadeem v. The State 2006 YLR 3043; Mehmood ul Hassanv. The State 2006 YLR 3013 and Liaqat Hussain v. The State 2006 MLD 1661 ref.

Muhammad Tariq Nadeem for Petitioner.

Sh. Imtiaz Ahmed for the State.

Ch. Pervez Aftab for the Complainant.

2008 M L D 163

[Lahore]

Before Iqbal Hameedur Rehman, J

MUHAMMAD ANSAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1554-B of 2007, decided on 9th October, 2007.

(a) Criminal Procedure Code (V of 1898)---

----Ss. 302/460---Bail, grant of---Accused, according to record, being a juvenile was entitled to bail as he was in jail for the last four years---Neither any injury was attributed to accused nor any recovery had been effected from him---Accused was not responsible for the inordinate delay caused in the trial---Delay in the prosecution of the case though no more was available as statutory right of bail to accused, but grant of bail on the ground of inordinate delay in conclusions of the trial could always be considered---Extra-judicial confession of co-accused through which the accused had been involved in the case, was a very weak type of evidence and as such his guilt had become a matter of further inquiry---Accused was admitted to bail in circumstances.

Wajid Ali v. The State 2006 PCr.LJ 542; Sikandar v. The State 2006 PCr.LJ 1648; Hidayatullah v. The State 2007 YLR 1311; Ghulam Farid v. State 2005 YLR 1573 and Muhammad Shafique and others v. The State 2004 PCr.LJ 1855 rel.

(b) Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 302/460---Bail---Inordinate delay in conclusion of trial, consideration of---Although delay in prosecution of the case was no more available as a statutory right of bail to accused, yet grant of bail on the ground of inordinate delay in conclusion of the trial has always been considered.

Hidayatullah v. The State 2007 YLR 1311 ref.

Muhammad Bilal Butt for Petitioner.

Qazi Khalid Pervaiz for the Complainant.

Mian Bashir Ahmad Bhatti DPG for the State.

Ahmad Hassan A.S.-I.

2008 M L D 170

[Lahore]

Before M. Bilal Khan, J

JEHANZEB KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No. 580 of 2007, decided on 4th October, 2007.

(a) Criminal Procedure Code (V of 1898)---

---S. 439---Revisional jurisdiction of High Court---Scope---High Court while seized of a revision petition under S.439, Cr.P.C. can, apart from questions of law, also deal with questions of fact and can interfere if the findings of the Courts below on questions of fact are unreasonably perverse and against the weight of evidence occasioning serious injustice or failure of substantial justice.

(b) Penal Code (XLV of 1860)---

----S. 489-F---Criminal Procedure Code (V of 1898), S.439---Criminal Revision---No prejudice had been caused to the accused by the mistake in charge sheet on account of the date on which the loan had been given---No jurisdictional infirmity, illegality or irregularity in procedure or perversity of reasoning on the part of any of the Courts below so as to warrant any interference in the matter through exercise of revisional jurisdiction, could be pointed out---Judgments of both the Courts below were well-reasoned, elaborate and based on sound reasoning and disclosed application of judicial mind---Revision petition was dismissed in limine accordingly.

Aziz Ahmad Malik for Petitioner.

2008 M L D 193

[Lahore]

Before Muhammad Muzammal Khan, J

Mst. NASEEM AKHTAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 6789-B of 2007, decided on 4th October, 2007. .

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 380 & 411---Code of Criminal Procedure (Amendment) Ordinance (XIII of 2006), S.2---Post­-arrest bail, grant of---Accused being an old lady of 60 years age was residing far away from place of occurrence---Co-accused/husband of accused was out of country during relevant period---Commission of charged offences in such situation was not probable---Accused owned plot adjacent to plot owned/possessed by complainant and there was some dispute of demarcation between parties---Accused had joined investigation---Charged offences were not covered by prohibitory clause of S.497, Cr.P.C.---Incriminating evidence against accused was not available on record---Statement of one prosecution witness recorded under S.161, Cr.P.C. for not being related or known to accused would hardly connect her with occurrence---Civil suit inter parties was pending---Arrest of accused being an old Pardah-observing lady would expose her to humiliation, inconvenience, disrepute in eyes of relations and public-at-large, especially when no case was made out against her---Ad interim bail granted to accused was confirmed in circumstances.

Talat Farooq Sheikh for Petitioner.

Saleem Anwar Khan for the Complainant.

Azhar Javed Rana, DPG along with Ashiq Hussain S.-I. for Respondent.

2008 M L D 195

[Lahore]

Before Sh. Azmat Saeed, J

ABDUL REHMAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1636-B of 2007, decided on 26th September, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further injury---Co-accused had already been granted bail---No sharp-edged injury was alleged in F.I.R. to have been inflicted by accused though mentioned in Medico-legal Report---Cause of death was also not ascertainable which had brought the case of accused within the four corners of further inquiry---Discretion had been exercised in favour of accused in view of rule of consistency---Accused was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Sh. Imtiaz Ahmed for the State.

2008 M L D 196

[Lahore]

Before Syed Jamshed Ali, J

MUHAMMAD AFZAL BAIG---Petitioner

Versus

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman and another---Respondents

Writ Petitions Nos. 19803 2, 300, 617, 22674, 17968, 19202 of 1999, 1025, 1026, 738, 11390 and 12773 of 2000, heard on 10th December, 2002.

General Clauses Act (X of 1897)---

----S. 21---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Principle of locus poenitentiae---Applicability---Judicial review of policy decision---Grievance of petitioners was that they were entitled to purchase their official cars after their retirement but such entitlement was withdrawn by the authorities in a policy decision made prior to their retirement---Validity---Unless a policy 'decision had violated express provision of law, such decision was not within the reach of High Court to review it while exercising constitutional jurisdiction---Principle of locus poenitentiae was not applicable because before the petitioners were entitled to purchase the cars at the time of their retirement, the policy was amended and no decisive step had been taken till then---Petition was dismissed in circumstances.

Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others 1992 SCMR 1652 ref.

Writ Petition No. 756 of 2001 not followed.

Ishfaq Qayyum Cheema for Petitioner.

Muhammad Ilyas Khan for Respondents.

Date of hearing: 10th December, 2002.

2008 M L D 204

[Lahore]

Before Syed Zahid Hussain, J

AKBAR and others---Appellants

Versus

Chaudhry NAZIR AHMAD and others---Respondents

Regular Second Appeals Nos. 56 and 62 of 2001, decided on 4th June, 2003.

Specific Relief Act (I of 1877)---

----S. 12---Transfer of Property Act (IV of 1882), S.41---Qanun-e-Shahadat (10 of 1984), Arts. 17(2)(a), 79, 118 & 119---Suit for specific performance of agreement to sell---Suit decreed by Courts below concurrently---Validity---Delivery of possession to plaintiff had taken place after receipt of earnest money by defendant---Balance payments had been made through receipts---Plaintiff, after purchasing suit shop had rented out the same to a tenant and had placed on record eviction order passed against tenant by Rent Controller and Appellant Court---Such evidence in support of plaintiff's claim was of great relevance and importance, which had remained unrebutted---Attesting witnesses of agreement to sell had died---Statement of plaintiff coupled with circumstantial evidence included such judicial orders was sufficient to prove execution of agreement-Subsequent purchaser claiming to be bona fide purchaser without notice had not proved his claim by producing clear and cogent evidence---Courts below had rightly decreed suit---High Court dismissed, appeal.

Mst. Rasheeda Begum and others v. Muhammad Yousaf and another 2002 SCMR 1089 and Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189 rel.

Shahid Bilal Hassan for Petitioners.

Nauman Qureshi for Respondent No. 1.

2008 M L D 207

[Lahore]

Before Fazal-e-Miran Chauhan, J

GHULAM MUSTAFA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 8511-B of 2007, decided on 26th November, 2007.

Criminal Procedure Code (V of 1898)---

----S.498---Copy Right Ordinance (XXXIV of 1962), Ss.66 & 67---Pre-­arrest bail, refusal of---Accused was specifically nominated in the F.I.R. with specific role of manufacturing the ink with the name and style "Best Dollar Ink", having no permission to use that trade mark, which was similar with the trade mark, used by the complainant---Prima facie, sufficient material was available on record to connect accused with the alleged offence---Accused had failed to show any mala fide on the part of the complainant or the police for his false implication in the ease---Such similarity was found in the name and style that any one could easily be deceived while purchasing said item, because no major change existed in the size of the packet, colour, and pieces therein---Prerequisites for grant of bail before arrest were missing in the case---Ad interim pre-arrest bail already granted to accused, was recalled.

Mian Saeed ud Din Ahmad for Petitioner.

Muhammad Shakil Abid for the Complainant.

Shahid Mehmood Khan, Deputy Prosecutor-General, for the State.

Muhammad Sharif, S.-I. with record.

2008 M L D 208

[Lahore]

Before Mian Saqib Nisar, J

SHAMIM KHANUM---Petitioner

Versus

Ch. MUHAMMAD SHAFI through Legal Representatives---Respondents

Civil Revision No. 1228-D of 1998, heard on 28th May, 2003.

(a) Qanun-e-Shahadat (10 of 1984)---

----Art. 100---Thirty years old document---Admissibility---Principles---Execution of document was denied---Party relying on the document did not produce any independent evidence regarding its being thirty years old except the date on the document---Validity---Party relying upon such document had to summon record of stamp vendor or should have produced the record of scribe in which the document could have been incorporated to prove the period of 30 years---Document was not proved in circumstances.

(b) Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Arts. 72 & 84---Specific performance of agreement to sell---Thirty years old document---Proof---Comparison of signatures---Agreement to sell relied upon by the plaintiff was denied by the defendant---Marginal witnesses of the agreement had died and comparison of signatures was not sought from hand-writing expert---Trial Court dismissed the suit but Appellate Court after having made the comparison of signature of defendant on written statement himself decreed the suit---Validity---Such comparison with naked eye could not be accurately made---Plaintiff should have sought comparison of signature from hand-writing expert which he had failed---Judgment and decree passed by the Appellate Court was set aside, by the High Court and that of the Trial Court was upheld.

Tuffazul H. Rizvi for Petitioner.

Ch. Saeed Sabir for Respondents.

Date of hearing: 23rd May, 2003.

2008 M L D 213

[Lahore]

Before Mian Muhammad Najum uz Zaman and Ijaz Ahmad Chaudhry, JJ

Mst. ZULFIA---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 732, 717, Capital Sentence Reference No. 17-T and Writ Petition No.8731 of 2006, heard on 4th September, 2007.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 365-A---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Appreciation of evidence---Prosecution witnesses at the trial had made dishonest improvements and contradictions were found in their statements about the manner of effecting recovery of dead body of deceased from the gutter---Recovery of dead body of deceased on the pointation of accused, could not be relied upon due to the conduct of the witnesses and because of the contradictions in their statements---Recovery was effected from the street where number of persons had gathered at the time of recovery, but none of the public witnesses were joined in the recovery proceedings; it was not safe to rely upon the recovery of dead body on the pointation of accused and the prosecution had failed to prove same through the evidence of unimpeachable character---Amount of Rs.5 lac allegedly was paid to accused as ransom amount, but neither the number of currency notes were noted down nor specific marks were made on said Currency Notes for identification; it could not be said, in circumstances that amount of Rs.4 lac which was recovered allegedly on the pointation of accused from her house was the same amount which was paid as ransom by the complainant party to the assailants who had abducted deceased for ransom---Even otherwise said recovery of amount could not be accepted as same was shown to have been effected only in the presence of the police officials, whose statement could not be relied upon due to their conduct as public witnesses were not joined though the house of accused was situated in the street---Said recoveries did not pinpoint about the participation of accused in the alleged crime and the possibility of false implication of accused in the case at the behest of the police could not be ruled out--No direct evidence was available against accused and circumstantial evidence led by the prosecution, was not found sufficient to link accused with the alleged commission of the crime---Mere heinousness of the offence, was not a ground that accused should always be convicted, but the prosecution was bound to produce evidence of unimpeachable character and weakness of the defence plea could not be used for the benefit of prosecution---Convictions and sentences awarded to accused by the Trial Court, were set aside and they were acquitted from the charges and were released.

Muhammad Aslam v. Muhammad Shafique and another 2004 SCMR 197; Muhammad Bashir alias Pervaiz and another v. The State 2005 PCr.LJ 1135 and Irshad Hussain and another v. The State 1989 ALD 220(2) rel.

Sikandar Zulqarnain Saleem for Appellant.

Faheem Ijaz for the Complainant.

M.A. Aziz Special Prosecutor for the State.

Date of hearing: 4th September, 2007.

2008 M L D 223

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2296-B of 2007, decided on 11th January, 2007.

(a) Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Unseen occurrence---Accused not named in the F.I.R., wherein another person was shown as accused for the murder of the deceased on the basis of circumstantial evidence---Complainant had involved the accused in his supplementary statement made after twelve days of the occurrence naming two witnesses of the event but they had submitted their affidavits after 53 days of the incident and got recorded their statements under section 161, Cr.P.C. claiming to have seen the commission of the murder of the deceased by the accused along with his father and brother---Said witnesses had neither stated the manner of the occurrence, nor attributed any specific role to the accused---Hatchet allegedly recovered at the instance of accused after three months of the occurrence was shown to be blood-stained---Case of accused, thus, was one of further inquiry entitling him to bail as a matter of right, which could not be snatched from him on the basis of rule of propriety demanding that after start of trial bail should normally be refused---Bail was allowed to accused in circumstances.

Muhammad Ismaeel v. Muhammad Rafiq and another PLD 1989 SC 585; Muhammad Umar v. The State and another PLD 2004 SC 477; Mumr v. State 2002 MLD 712 and Muhammad Saleem v. The State PLD 1989 Lahore 233 rel.

(b) Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail on ground of further inquiry---Accused after making out a case of further inquiry becomes entitled to bail as a matter of right, which cannot be snatched from him on the basis of rule of propriety, which demands that after the commencement of trial bail should normally be refused.

Muhammad Ismaeel v. Muhammad Rafiq and another PLD 1989 SC 585; Muhammad Umar v. The State and another PLD 2004 SC 477; Munir v. State 2002 MLD 712 and Muhammad Saleem v. The State PLD 1989 Lahore 2.33 ref.

Muhammad Farooq Khan Buzdar for Petitioner.

Nadir Manzoor Duggal, DPG with Safdar S.-I for the State.

Mian Muhammad Tariq for the Complainant.

2008 M L D 226

[Lahore]

Before Syed Jamshed Ali, J

REHMAT ALI and another---Appellants

Versus

NAZIR AHMAD and 4 others---Respondents

Regular Second Appeal No. 115 of 1986, heard on 9th February, 2004.

Punjab Pre-emption Act (I of 1913)---

----S.15---Land Reforms Regulation of 1972 (MLR 115 of 1972), Para. 25(3)(d)---Right of pre-emption---Defence in pre-emption suit was that the defendant was tenant---Khasra Girdawaries produced were of ten years prior to the sale and were not about the suit-land---Mere recital in the sale-deed about the possession of defendants was not considered sufficient to establish tenancy---Relevant Khasra Girdawari was withheld---Oral evidence was discrepant, witnesses of defendants were inimical and interested---Trial Court had rightly disbelieved said witnesses and decreed the suit---Appellate Court had misread the documentary evidence---Appeal was allowed and judgment and decree of the Appellate Court were set aside and those of Trial Court were restored in circumstances.

Mian Sarfraz ul Hassan for Appellant.

Mian Ghulam Rasool for Respondent.

Date of hearing: 9th February, 2004.

2008 M L D 231

[Lahore]

Before Sh. Azmat Saeed, J

MUHAMMAD BILAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2254-B of 2007, decided on 25th October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.452/427/448/511/337-H(ii)/148/149---Pre-arrest bail, grant of---Civil litigation inter-se the parties instituted by the sister of accused qua the property in dispute was pending in which status quo order had been passed---In view of the pendency of said litigation there was a distinct possibility of mala fides qua false involvement of the accused in the present case---All other co-accused had been granted bail---Interim pre-arrest bail already granted to accused was confirmed in circumstances.

Muhammad Bilal Butt for Petitioner.

Mehr Mazhar Hussain Hiraj for the Complainant.

Mumtaz Hassan Awan for the State.

Sadiq, S.-I.

2008 M L D 232

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

MUSHTAQ AHMED and 4 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos. 1747-B and 1993-B of 2007, decided on 24th September, 2007.

(a) Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 337-A(ii)/337-F(3)/148/149---Pre-arrest bail, grant of---Case being of cross-version both the parties which had scuffled and injured each other had sought pre-arrest bail---Cases of cross-version arising from the same incident, one given by the complainant in the F.I.R. and the other given by the opposite party, were almost appropriate for grant of bail on the ground of further inquiry as contemplated under S.497(2), Cr.P.C., for the reason that the question as to which version was correct was to be decided by the Trial Court after recording and appraising evidence---Was yet to be determined as to which party was aggressor and which party was aggressed against---Ad-interim bail granted to accused was confirmed in circumstances.

Shoaib Mehmood Butt v. Iftikhar ul Haq and 3 others 1996 SCMR 1845 ref.

(b) Criminal Procedure Code (V of 1898)---

---S.497(2)---Bail---Case of cross-version---Further inquiry---In a case of counter-version arising from the same incident, one given by the complainant in F.I.R. and the other given by the opposite party, bail is normally granted on the ground of further inquiry as contemplated under S.497(2), Cr.P.C. for the reason that the question as to which version is correct is to be decided by the Trial Court which is supposed to record evidence and also appraise the same in order to come to a final conclusion in this regard.

Shoaib Mehmood Butt v. Iftikhar ul Haq and 3 others 1996 SCMR 1845 ref.

Ch. Dawood Ahmad Wains along with Petitioner (in Criminal Miscellaneous No. 1147/B/07).

Rana Jehanzeb Khan for Petitioner (in Criminal Miscellaneous No. 1933/B/07).

Ch. Bashir Ahmad Bhatti, D.P.G. Muhammad Sadiq S.-I. with record.

2008 M L D 236

[Lahore]

Before Mian Hamid Farooq, J

MUHAMMAD SAEED---Appellant

Versus

MUHAMMAD ASGHAR---Respondent

S.A.O. No. 111 of 2003, decided on 17th February, 2004.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13(6)---Default---"Pagri amount"---Order to deposit the arrears of rent and future monthly rent was not complied with by the tenant and his defence was struck off---Validity---Plea of payment of "pagri" amount was not tenable---Default in compliance with terms of the order---Rent Controller acted completely in accordance with law---Tenant was allowed to file a suit for the recovery of the alleged security/Pagri amount.

Muhammad Yousaf v. Muhammad Bashir and others 1990 SCMR 557 and Syed Muhammad Zaman v. Abdul Khaliq 1991 SCMR 1982 rel.

Malik Muhammad Azam Rasool for Appellant.

Malik Abdul Rehman Awan and Ashraf Ali Nazmi for Respondent.

2008 M L D 241

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Rana MUMTAZ ALI---Petitioner

Versus

D.I.-G., MULTAN RANGE, MULTAN and 8 others---Respondents

Writ Petition No. 7738 of 2002, decided on 20th September, 2002.

Criminal Procedure Code (V of 1898)---

----S. 154---Penal Code (XLV of 1860), S.302/34---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Recording of the version of the petitioner---Petitioner was complainant in the case already registered under S. 302/34, P.P.C. ---Respondent/Investigating Officer had refused to record the version of the petitioner who according to the counsel was duty bound to record the same and investigate in the matter---Without going into the correctness or incorrectness of the contentions raised in the petition Investigating Officer was directed to record the version of the petitioner and investigate the case in an independent and impartial manner after affording equal opportunities to all the concerned persons including the private respondents and conclude the investigation in accordance with law---Constitutional petition was allowed accordingly.

Rana Jahenzeb Khan for Petitioner.

2008 M L D 242

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

SHAHBAZ NOOR---Petitioner

Versus

THE STATE and 10 others---Respondents

Writ Petition No. 143 of 2007, heard on 23rd October, 2007.

Penal Code (XLV of 1898)---

----Ss.324, 506, 148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of F.I.R.---Petitioner had sought quashing of F.I.R. or in the alternate deletion of S.324, P.P.C. and S.7 of Anti-Terrorism Act, 1997 on the ground that from the plain reading of the F.I.R., no case under the said provisions was made out and said sections had been added only with a view to magnifying the offence and making the same non-bailable---On prosecution's own showing, the Golf Course in question was being constructed at a far off place away from residential area and the main road---Apart from that if murderous assault had been launched in the manner as alleged in the F.I.R., then some damage ought to have been caused---F.I.R., mentioned that petitioners/accused and their co-accused, who were carrying dangerous fire-arms, had resorted to firing, but strangely enough no physical harm, whatsoever, had been caused by such firing---Case did not attract the provisions of the Anti-Terrorism Act, 1997---No statement was on record of any of the foreign or Pakistani workers, who had allegedly been scared away to support the claim of prosecution---Applicability of S.324, P.P.C. also did not appear to be made out for the simple reason that no harm was caused, though petitioners were allegedly armed with formidable weapons---Neither S.7 of the Anti-Terrorism Act, 1997 nor S.324, P.P.C. was applicable to the facts and circumstances of the case.

Mohabbat Ali-and another v. The State and another 2007 SCMR 142 ref.

Muhammad Anwar Bhaur for Appellant.

Rai Tariq Saleem, A.A.-G. of the State.

Muzammal Qureshi, Muhammad Ghani for the Complainant Respondent No. 11.

Syed Sabir Hussain, S.-I. with record.

Date of hearing: 23rd October, 2007.

2008 M L D 245

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD ZAMAN alias MANI KHAN---Petitioner

Versus

BHAGBHARI and 15 others---Respondents

Civil Revision No. 1881 of 2003, decided on 25th February, 2004.

Specific Relief Act (I of 1877)---

----S.42---Civil Procedure Code (V of 1908), S.115---Revisional jurisdiction---Reappraisal of evidence---Two suits involved a common question namely whether wife died simultaneously with the husband or she died after the death of her husband on the same day---Plaintiffs collaterals of the propositus in their suit claimed simultaneous death and daughters (defendants) had filed separate suit claiming that their mother died after the death of their father and thus were entitled to inherit their shares---Proceedings were taken in the suit of the collaterals---Suit filed by collaterals was dismissed and the suit filed by the daughters was decreed---Appeals filed by the plaintiffs were dismissed---Plaintiff and one of his witnesses had conceded that the deceased had died at his "Dera" and they came to know when his dead body was brought to his house in the city---Was admitted that one of the daughters was present at the "Dera" at the time of death of the propositus---Said daughter appeared as defendant's witness and stated that her father died at his Dera she was present there she closed his mouth and her mother died several hours later when dead body was brought at home, she died of heart attack/shock---Plaintiffs had failed to prove as to who died first---Statement of defendant's witness was natural and appealed to common sense---Findings of Courts below were in consonance with the evidence on the file---Revisional Court could not reappraise the evidence---Revision petition was dismissed in circumstances.

Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291; Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139; Mst. Ameer Begum v. Muhammad Naeem Khan and another PLD 2000 SC 839 and Mst. Kaniz Fatima through Legal Heirs v. Muhammad Salim and 27 others 2001 SCMR 1493 ref.

M. Zafar Chaudhry for Petitioner.

Amir Khan Niazi for Respondents Nos. 1, 2, 9, 12 to 14 and 16.

Nemo for other respondents.

2008 M L D 250

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD SHAFA---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 2233-B of 2007, decided on 8th October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Prevention of Corruption Act (II of 1947), S.5---Penal Code (XLV of 1860), S.161---Bail, grant of---Offence allegedly committed by accused did not fall within the prohibitory clause of S. 497(1), Cr.P.C. and bail could not be withheld as a matter of punishment---Accused being a Government servant was not likely to abscond---Bail was allowed to accused in circumstances.

Tariq Bashir v. The State PLD 1995 SC 34 rel.

Pir Masood-ul-Hassan Chishti for Petitioner.

Rao Atif Nawaz for State with Khalid Ayub, M.H.C.

2008 M L D 251

[Lahore]

Before Syed Sajjad Hussain Shah, J

MUHAMMAD SHARIF---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2543-B of 2006, decided on 27th April, 2006.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.379---Bail, grant of---No recovery had been effected from the possession of accused to connect him with the offence---Accused was not previous convict and was not involved in any case of cattle theft---Offence against accused did not fall under the prohibitory clause of S.497, Cr.P.C.---Maximum punishment of offence alleged against accused was only three years---Bail, in such like cases was a rule and refusal was an exception---Accused, who was behind the bars, was no more required for further investigation and to keep him there for an indefinite period, would not serve any beneficial purpose---Accused was admitted to bail, in circumstances.

Syed Faiz-ul-Hassan for Petitioner.

Shahanshah Shumagel Paracha for the State with Faiz-ul-Hassan, A.S.-I. with record.

2008 M L D 252

[Lahore]

Before Muhammad Sair Ali, J

CHIRAGH DIN and another---Appellants

Versus

AKRAM MOHIUDDIN and 4 others---Respondents

Regular Second Appeal No. 11 of 1998, heard on 29th January, 2004.

Specific Relief Act (I of 1877)---

----S.12---Document---Agreement to sell---Onus to prove---Fraud---Misrepresentation---Plaintiff's suit for specific performance of agreement to sell was decreed---Decree was maintained by Appellate Court---"Defendants contended that agreement included a term regarding revocation of the agreement and it was not duly proved---Validity---Defendants had admitted their signatures on the document which they had denied in their written statement---Onus to prove that document was forged or product of fraud was on defendants who had failed to discharge the onus---No legal infirmity was pointed out---Concurrent findings were not disturbed in circumstances.

Muhammad Sarwar Awan for Appellants.

Respondents: Ex parte.

Date of hearing: 29th January, 2004.

2008 M L D 255

[Lahore]

Before Iqbal Hameedur Rehman, J

GHULAM MUSTAFA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1940-B of 2007, decided on 25th September, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.489-F---Bail, refusal of---Sufficient material placed on record had, prima faice, showed that the accused had not only issued the cheque to the complainant, which was admitted, but he had in categorical terms undertaken to make payment to the complainant---Liability more or less had been admitted by the accused---Civil suit had been instituted at a later stage after the rejection of bail to the accused by the lower Courts---Accused having been involved in other identical case seemed to be a habitual offender---Admission of guilt by the accused was an exceptional circumstance which, together with element of fraud, inherent in the offence, had made his case utterly unsuitable for grant of bail---Accused was refused bail in circumstances.

Jehan Khan v. The State PLD 2006 Lahore 302 and Ghulam Ahmed v. The State 2006 MLD 330 rel.

PLD 1995 SC 34 and Lal Hussain v. Muhammad Akber and 2 others 1995 PCr. LJ 946 ref.

Sardar Zafar Ahmad Lound for Petitioner.

Mehar Fida Hussain for the Complainant.

Ch. Bashir Ahmad Bhatti, D.P.G for the State.

Shamshair S.-I. with record.

2008 M L D 259

[Lahore]

Before Mian Hamid Farooq, J

NISHAN MUHAMMAD---Petitioner

Versus

Mst. BASHIR BEGUM---Respondent

Civil Revision No. 2574 of 2002, decided on 13th June, 2003.

(a) Civil Procedure Code (V of 1908)---

----O.XIV, R.1---Specific issues, non framing of---Effect---Even if specific issues are not framed but averments made in the plaint are challenged in written statement and the Court has allowed evidence to be led, then the decision rendered without framing of specific issues is not illegal.

Fazal Muhammad Bhatti and another v. Mst. Saeeda Akhtar and 2 others 1993 SCMR 2018 and The Province of East Pakistan v. Major Nawab Khawaja Hasan Askay and others PLD 1971 SC 82 ref.

(b) Civil Procedure Code (V of 1908)---

----O.XIV, Rr. 1, 2 & S. 115---Revision---Non-framing of specific issue---Concurrent findings of fact by the Courts below---Suit for recovery of mesne profits was decreed in favour of the plaintiff and appeal filed by the defendant was dismissed by Appellate Court---Plea raised by the defendant was that as no specific issue was framed regarding recovery of mesne profits, therefore, judgments and decrees passed by both the Courts below were liable to be set aside---If the defendant was not satisfied with the framing of issues, he could have filed application under O.XIV, R.2, C.P.C. for framing of additional issues---No such opportunity having been availed by the defendant before Trial Court, defendant could not be allowed to plead the same at the stage of revision---Concurrent findings of facts recorded by both the Courts below were based on proper appreciation of evidence produced by the parties before the Trial Court---No case of mis-reading and non-reading of evidence had been made out, nor there was any legal infirmity nor illegal exercise of jurisdiction nor failure of exercise of jurisdiction by both the Courts below---Revision was dismissed in circumstances.

(c) Civil Procedure Code (V of 1908)---

----S. 115---Revisional jurisdiction of High Court---Concurrent findings of fact by the Courts of competent jurisdiction---Scope of interference---Such findings cannot be interfered with in revisional jurisdiction unless the findings suffered from jurisdictional defect, illegality or material irregularities---Concurrent findings of facts based on evidence are not liable to be interfered in exercise of jurisdiction under S.115, C.P.C.

Muhammad Rafique v. Aamer Shahzad and others 1999 YLR 610; Abdul Rahim and another v. Mst. Janatay Bibi and others 2000 SCMR 346; Anwar Zamand and 5 others v. Bahadur Sher and others 2000 SCMR 431; Aziz Ullah Khan and others v. Gul Muhammad Khan 2000 SCMR 1647; Altaf Hussain v. Abdul Hameed and Abdul Majeed through legal heirs and another 2000 SCMR 314; Haji Noor Muhammad v. Abdul Ghani and 2 others 2000 SCMR 329; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Muhammad Rashid Ahmad v. Muhammad Siddique PLD 2002 SC 293 ref.

Ch. Binyamin Khalil for Petitioner.

Muhammad Akram Shahid for Respondent.

2008 M L D 264

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD ALI---Petitioner

Versus

S.H.O. and others---Respondents

Writ Petition No. 13402 of 2005, decided on 1st August, 2005.

Constitution of Pakistan (1973)---

----Art.199---Criminal Procedure Code (V of 1898), S. 491---Constitutional jurisdiction of High Court---Scope---Proceedings under Art.199 of the Constitution read with S. 491, Cr.P.C., being of summary nature, High Court cannot enter into recording of evidence in constitutional jurisdiction nor it can enter into a detailed inquiry or recording of evidence, while exercising its constitutional jurisdiction---Parties could resort to concerned courts under relevant provisions of law.

Naseem Ullah Khan Niazi for Petitioner.

Syed Faiz-ul-Hassan for Respondent No.1.

Ch. Aamir Rehman, Additional A. G., Punjab.

Babar Nawaz, Sub-Inspector.

2008 M L D 265

[Lahore]

Before Syed Jamshed Ali, J

Mst. NARGIS KHALIDA alias KHALIDA NARGIS---Petitioner

Versus

BASHIR AHMAD and 6 others---Respondents

Civil Revision No. 1751-D of 1991, heard on 20th May, 2003.

(a) Qanun-e-Shahadat (10 of 1984)---

----Arts. 17, 72 & 79---Execution of document---Proof---Failure to produce two marginal witnesses---Disputed agreement to sell was executed on 3-6-1978, before promulgation of Qanun-e-Shahadat, 1984---One marginal witness of the agreement and scribe in whose presence the parties put their signatures on the agreement were examined to support execution of the agreement---Hand-writing expert also supported the evidence of both the witnesses---Agreement was proved in circumstances.

(b) Specific Relief Act (I of 1877)---

----S. 12---Contract Act (IX of 1872), S.23---Specific performance of agreement---Agreement against public policy---Principles---During earlier suits for possession through pre-emption, the parties entered into agreement with each other to jointly bear the expenditures of litigation and after having been' successful, and the property was to be shared equally---After the decision in earlier suits, the defendant declined to perform his part of agreement---Trial Court decreed the suit in favour of the plaintiff but Appellate Court dismissed the same on the ground that the agreement was opposed to public policy---Validity---Every agreement to finance litigation per se is not opposed to public policy rather there may be a case in which it would be in furtherance of law, equity, justice and necessary to resist oppression e.g. that a suitor who has a just and complete title to a property but no means to retrieve the same, therefore, in such situation the agreement would be legal and justified---Such agreements are to be carefully scrutinized and when found to be unconscionable, unjust or inequitable or for improper object or as against law or oppressive or leading to vexatious litigation, the same would be attacked being against public policy---Disputed agreement between the parties was neither un-conscionable, unjust or inequitable---Appellate Court not only misapplied the law but also ignored from consideration material evidence---Judgment and decree passed by the Appellate Court was set aside and suit was decreed in favour of the plaintiff.

Ramzan and 2 others v. Lara through Legal Heirs and another 2001 MLD 957; Noor Muhammad v. Nazar Muhammad 2002 SCMR 1301 and Anayat Ali Shah v. Anwar Hussain 1995 MLD 1714 ref.

(c) Practice and procedure---

----In absence of specific plea in written statement, plaintiff could not have been non-suited on question of fact.

Ch. Shahbaz Khurshid for Petitioner.

Ch. Arshad Mahmood for Respondents.

Date of hearing: 20th May, 2003.

2008 M L D 270

[Lahore]

Before Mian Hamid Farooq, J

Hakim ASAD MANZOOR QURESHI---Petitioner

Versus

Malik MUHAMMAD ASLAM and another---Respondents

Criminal Revision No.107 of 2001, decided on 4th December, 2007.

Civil Procedure Code (V of 1908)---

----O.XXXVII, Rr.2 & 3---Suit for recovery of amount on the basis of Bank drafts---Application for leave to appear and defend suit---Plaintiffs filed suit for recovery of amount against defendant under summary procedure provided under O.XXXVII, C.P.C. on the basis of Bank drafts---Defendant filed application seeking leave to appear and defend suit---Trial Court accepted said application and directed defendant to submit bank guarantee equal to the suit amount---Contention of defendant was that he was entitled to unconditional leave to appear and defend the suit---Validity---Order XXXVII, R.3(2), C.P.C. had provided that leave to defend suit could be given unconditionally or subject to such terms as to payment into Court, giving security, framing and recording issues or otherwise as the court would think fit---Discretion in circumstances, had been conferred upon court to grant leave to defend the suit, either unconditionally or subject to such terms as to payment into court or giving security---Trial Court, in circumstances, did not commit any illegality in passing impugned order and discretion exercised by the Trial Court was perfectly justified and was not open to exception.

Zubair Ahmad and another v. Shahid Mirza and 2 others 2004 MLD 1010; Mian Rafique Saigol and another v. Bank of Credit and Commerce International (Overseas) Ltd. and PLD 1996 SC 749; Niaz Ahmad and 2 others v. Habib Bank Ltd. and others 1991 SCMR 75 and Messrs Ark Industrial Management Ltd. v. Messrs Habib Bank Ltd. PLD 1991 SC 976 and Shahzada Muhammad Umar Beg v. Sultan Muhammad Khan and others PLD 1970 SC 139 ref.

Malik Amjad Pervaiz for Petitioner.

2008 M L D 273

[Lahore]

Before Khawaja Muhammad Sharif and Mian Muhammad Najum-uz-Zaman, JJ

NAZIR AHMAD alias NA'ARAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 762, 1078 and Murder Reference No. 356 of 2000, heard on 9th March, 2005.

(a) Penal Code (XLV of 1860)---

----Ss.302(b) & 449---Appreciation of evidence---Case was of promptly lodged F.I.R.---Out of three accused persons one was the present accused, while two others who were shown to be unknown were acquitted by the Trial Court---No conflict existed between ocular account and medical evidence---Presence of wife of deceased, who was most natural witness of the occurrence, could not be brushed aside by any stretch of imagination; she had fully implicated accused before the police as also before the Trial Court---Electric bulb was on at the time of occurrence. which was witnessed by the prosecution witnesses in the light of bulb and accused was duly identified---Accused, who was arrested four months and 20 days after occurrence, remained absconder and proceedings under Ss.87/88, Cr.P.C. were initiated against him---Believing presence of widow of deceased at the Spot and ocular account having been fully supported by medical evidence, coupled with long abscondence of accused for more than four months, prosecution had been successful in proving its case against accused beyond any shadow of doubt---Conviction and sentence recorded against accused by the Trial Court was maintained in toto, death sentence was confirmed and murder reference was replied in the affirmative.

(b) Penal Code (XLV of 1860)---

----S.302(b)---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Three accused in all were named in-the F.I.R. and out of those three, two others, who were shown to be unknown, were acquitted by the Trial Court---Validity---No role whatsoever was attributed to the acquitted accused---Neither any description of the unknown accused was given in the F.I.R. nor any identification parade was held---Reasoning given by the Trial Court for acquittal of said accused were supported from evidence on record and no valid exception could be taken to said acquittal---Appeal against acquittal was dismissed, in circumstances.

Bashir Abbas Khan for Appellant.

Malik Suleman Awan for the State.

Faizal Hassan for the Complainant.

Date of hearing: 9th March, 2005.

2008 M L D 278

[Lahore]

Before Muhammad Akhtar Shabbir, J

NAZEER HUSSAIN and 4 others---Appellants

Versus

MUHAMMAD IQBAL and others---Respondents

R.S.As Nos. 441 & 549 of 1975, heard on 3rd April, 2003.

(a) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----Ss. 3, 4 & 5---Limited estate, termination of---Effect---Provisions of Ss.3, 4 and 5 of West Pakistan Muslim Personal Law (Shariat) Appli­cation Act, 1962, were made applicable retrospectively---Muslim female holding a limited estate under custom was entitled, upon death of the last full owner, to inherit her share under the provisions of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962.

(b) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----Ss. 3, 4 & 5---Limitation Act (IX of 1908), Art. 120---Limited estate, assailing of--Limitation---Holder of limited estate died in the year, 1964, but the limited estate had been terminated under Ss. 3, 4 & 5 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, with effect from 31-12-1962---Suit was filed in the year, 1967 and the defendant contended that the same was barred by limitation---Validity---Right to sue or claim the legal share had accrued to the plaintiffs with effect from 31-12-1962, and the suit had been filed within five years of the termination of the limited estate---Suit filed by the plaintiffs was within the period prescribed in Limitation Act, 1908.

(c) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----Ss. 3, 4 & 5---Termination of limited estate---Rights of legal heirs of last limited owner---Scope---After termination of limited estate of widow, legal heirs of the last holder of the property would succeed to the estate as heirs.

Mst. Ghulam Jannat and others v. Ghulam Janat through legal heirs and others 2003 SCMR 362 rel.

(d) Specific Relief Act (I of 1877)---

----S.42---Declaration of title---Suit filed by co-shares---Limitation, commutation of---Co-sharer is entitled to file a suit for declaration to establish his right of co-sharership when his right is denied by his opponents---Such suit would be within time whenever fresh cause of action accrues to the co-sharer.

Ghulam Ali v. Ghulam Sarwar Naqvi PLD 1990 SC 1; Hashmat Ali v. Mst. Jantan 1993 SCMR 950 and Muhammad Yusuf v. Noor Din 1993 MLD 763 rel.

(e) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

---Ss. 3, 4 & 5---Specific Relief Act (I of 1877), S. 42---Declaration of title---Inheritance of property left by Muslim right-holder---Limitation---Time for filing a suit by such legal heirs does not expire---Such right is continuing and every entry adverse to the interest of the legal heir in Revenue Record gives him fresh cause of action and his suit remains within limitation.

(f) West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)---

----Ss. 3, 4 & 5---Limited estate, termination of---Determination of shares---On termination of limited interest of female, the property was to be considered as in the ownership of last full owner and the same would devolve upon his shares heirs alive at the time of his death---If anyone of such heirs had died prior to termination of limited estate, heirs of such pre-deceased heir would also get the share to which their predecessor had been entitled if alive but the limited owners would also be entitled to their legal shares---Where the last full owner had died issueless, his widow was also entitled to inherit her husband share to the extent of 1/4.

(g) Specific Relief Act (I of 1877)---

----S. 8---West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962), Ss. 3, 4 & 5---Termination of limited estate---Recovery of possession by legal heirs of last full owner---Execution of gift mutation by the holder of limited estate---Plaintiffs filed suit for possession of the suit-land to the extent of 11/12 share of the suit property and claimed themselves to be the legal heirs of last full owners of the limited estate---Defendants contended that the holder of limited estate had made gift of the land in their favour---Trial Court decreed the suit in favour of plaintiffs only to the extent of 49/145 share in the suit-land---Judgment and decree passed by the Trial Court was set aside by Appellate Court and the suit was dismissed---Validity---Property of Muslim male holder would devolve on his legal heirs immediately after his death---With termination of limited estate, the holder of such estate ceased to be the owner of the property except her own legal share inherited from the property of her husband or last male holder---Transfer of total holding by the holder of limited estate through mutation of gift was not warranted---Limited owner could not have transferred the property to the defendants beyond her own share and thus, the transfer in favour of the defendants was invalid---Judgment and decree passed by the Appellate Court was set aside and that of the Trial Court was restored with some modification of entitlement of shares of the plaintiffs.

Abdur Rashid alias Muhammad Rashid v. Muhammad Boota 1993 CLC 214; Ismail v. Ghulam Qadir 1990 SCMR 1667; Suba v. Mst. Fatima Bibi 1992 SCMR 1721 and Abdur Rehman v. Amrat PLD 2003 SC 186 ref.

Ch. Riasat Ali for Appellants.

Qazi Shaharyar Iqbal for LRs for Respondent No.1.

Malik Muhammad Shahzad for Respondents Nos.4 to 9.

Date of hearing: 3rd April, 2003.

2008 M L D 289

[Lahore]

Before Tariq Shamim, J

NAEEM RIAZ and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 6077-B of 2007, decided on 5th December, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.365-B---Bail, grant of---Further inquiry---Contents of the F.I.R. had revealed that the complainant himself had not witnessed accused and others abducting his daughter/alleged abductee---Two eye-witnesses cited in F.I.R. had sworn affidavits to the effect that they had not witnessed the occurrence as alleged by the prosecution---Case of accused, in circumstances was one of further inquiry into their guilt---No direct evidence was available on record regarding complicity of accused in the crime---Police had declared accused innocent during investigation---Doubt about the veracity of the prosecution case was created by delay of two days in lodging of F.I.R. which had also not been adequately explained by the complainant---Accused were behind the bars for the last more than seven months and since investigation had been finalized keeping them in continued custody would not serve any useful purpose---Accused were admitted to bail in circumstances.

Liaqat Ali Butt for Petitioners.

Muhammad Safdar Shaheen Pirzada for Complainant.

Ch. Amjad Hussain, Deputy Prosecutor General for the State along with Muhammad Anwar, A.S.-I.

2008 M L D 291

[Lahore]

Before Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ

ZAHID LATEEF---Petitioner

Versus

THE STATE through Anti-Narcotics Force ---Respondent

Criminal Miscellaneous No. 6074-B of 2007, decided on 22nd November, 2007.

Criminal Procedure Code (V of 1898)---

----Ss.497(2) & 498---Control of Narcotic Substances Act (XXV of 1997), Ss.9(a), (c) & 15---Bail, grant of---Further inquiry---Tentatively, "Buprenorphine" being a scheduled drug could be kept by accused being licence holder in the premises and whether he being its distributor could transport it, made his case of further inquiry---On the day of recovery, licence of accused was intact---Accused, while on physical remand, did not lead to any further recovery of the drugs and had already suffered detention of about six months---Challan of the case though had been taken cognizance by the Trial Court but no prosecution witness was reported to have been examined, diminishing chances of its conclusion in the near future---Person of accused was no more needed for investigation purposes and his further detention would not advance prosecution case any more---In absence of any allegation of abscondence or tampering with prosecution evidence by accused, bail was not to be withheld as of punishment especially when the offences charged were doubtfully covered by prohibitory clause of S.497, Cr.P.C.---Accused had made out a case for confirmation of his interim post arrest bail granted to accused---Bail already granted to accused was confirmed.

Muhammad Sharif for Petitioner.

Rana Sohail Iqbal Legal Advisor for ANF.

2008 M L D 296

[Lahore]

Before Rustam Ali Malik, J

GULZAR MASIH---Petitioner

Versus

Haji GHULAM QADIR---Respondent

Civil Revision No. 1261 of 1996, heard on 23rd July, 2003.

Specific Relief Act (I of 1877)---

----S. 8---Civil Procedure Code (V of 1908), S.115---Recovery of possession---Raising of new plea---Plaintiff claimed to be owner of the suit property on the basis of registered sale-deed---Defendant raised different pleas about his possession over suit property but he failed to prove any of-them---Contention raised by defendant before High Court, in revision, was that he was owner of the suit property on the basis of adverse possession---Validity--.-Defendant had nowhere pleaded earlier that his possession of the property in dispute was adverse and hostile to the actual owners of the property---Defendant could not take such plea for the first time before High Court---Appellate Court had rightly allowed the appeal and the suit was decreed in favour of the plaintiff---Judgment and decree passed by the Appellate Court not suffering from any illegality or material irregularity, High Court in exercise of revisional jurisdiction declined to interfere in the judgment and decree passed by the Appellate Court--Revision was dismissed in circumstances.

Chaudhry Muhammad Ikram Zahid for Petitioner.

Malik Muhammad Amir Joiya for Respondent.

Date of hearing: 23rd July, 2003.

2008 M L D 303

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD AKRAM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 5746-B of 2007, decided on 30th November, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XIV of 1860), S.489-F---Bail, refusal of---High Court though had already granted bail in one case to accused, but while considering bail application of accused in that case, the fact of registration of several other F.I.Rs. against him was brought to the notice of the Court---Effect---Bail though normally was granted in offence like 489-F, P.P.C., but in view of fact that eight F.I.Rs. were registered against the accused, concession of bail could not be extended to him---Bail application of accused was dismissed, in circumstances.

Shahid Muzaffar Khan for Petitioner.

Muhammad Nasir Chohan for the Complainant.

Ch. Abdul Razzaq Kamboh, Deputy Prosecutor General, Punjab.

Tariq Mehmood A.S.-I. with record.

2008 M L D 305

[Lahore]

Before Tariq Shamim, J

NASEER and 3 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1096-B of 2007, decided on 9th March, 2007.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.337-A(i), 337-(i)(v), 337-L(ii) & 34---Pre-arrest bail, grant of---Accused though were nominated in the F.I.R. and specific roles had been ascribed to them, but one accused had been attributed injury to the complainant resulting in fracture of ribs which was fully covered under S.337-F(v), P.P.C.---Injuries assigned to other three accused were minor in nature---Weapon of offence had yet to be recovered from the first accused against whom nine other' criminal cases stood registered under different provisions of Penal Code and West Pakistan Arms Ordinance, 1965---Said accused, during investigation, was found to be fully involved in the case by the Police---Offences mentioned in the F.I.R. though did not attract the prohibitory clause under S.497(i), Cr.P.C., nevertheless the injury inflicted by the first accused was severe in nature---Bail petition to the extent of three accused was accepted, whereas to the extent of first accused stood dismissed---Ad interim pre-arrest bail granted to three accused was confirmed.

Malik Muhammad Imtiaz Mahal along with for Petitioners.

Muhammad Asif Hayat for Complainant.

Ch. Amjad Hussain, D.P.G. for the State along with Zulfiqar Ali, A.S.-I. with record.

2008 M L D 307

[Lahore]

Before Muhammad Muzammal Khan, J

MUHAMMAD SHARIF---Petitioner

Versus

MUHAMMAD YOUSAF---Respondent

Civil Revision No. 483-D of 1998, decided on 15th December, 2003.

(a) Punjab Pre-emption Act (IX of 1991)---

----Ss. 13 & 14---Pre-emption suit---Talbs, making of---Talb-i-Muwathibat---Authority of attorney to make Talbs---Scope---Section 14 of the Punjab Pre-emption Act, 1991, authorizes a duly appointed agent, to make Talbs on behalf of his principal and thus by non-appearance of the principal himself in the witness-box, performance of Talb-i-Muwathibat could be proved by his attorney.

(b) Punjab Pre-emption Act (IX of 1991)---

----S.13---Talb-i-Ishhad---Notice---Proof of dispatch of the notice and delivery thereof not necessary---Written notice, fn the present case, was given through an Advocate in presence of two witnesses---Five witnesses were produced to prove the performance of Talbs---Disptach of notice through registered cover was proved to have been sent---Non-service of notice would not destroy the right---Performance of Talb-i-Ishhad, in presence of two truthful witnesses was a condition precedent for maintaining a suit for pre-emption but proof of notice was not necessary---Dispatch of notice attested by two truthful witnesses having been proved, proof of delivery of the notice was neither a requirement of S.13 of the Punjab Pre-emption Act, 1991 nor that of Islamic Law.

Haji Rana Muhammad Shabbir Ahmad Khan v. Government of Punjab Province, Lahore PLD 1994 SC 1; Haji Qadar Gul v. Member Khan and another 1998 SCMR 2102 and Abdul Malik v. Muhammad Latif 1999 SCMR 717 rel.

(c) Civil Procedure Code (V of 1908)---

----O.XVIII, R.5---Evidence of parties recorded in one suit reproduced in other two cases---Course adopted by Trial Court not objected to---Such course would be considered to have been undertaken with concurrence of the parties and their counsel---Petitioner having acquiesced in the procedure adopted was estopped to turn back and say that evidence in all the cases should have been recorded separately---Objection of the petitioner being only of technical nature did not defeat the ends of justice in circumstances.

(d) Punjab Pre-emption Act (IX of 1991)---

----S. 13---Pre-emption suit---Limitation---Section 13(c), Punjab Pre-emption Act, 1913 gives period of limitation of four months for maintaining a suit of pre-emption from the date on which vendee takes physical possession of the property if the sale is made otherwise than by a registered sale-deed or a mutation---Period of limitation, in case of mutation of sale sanctioned on 27-10-1994, under sub-clause (b) of S.13 would be four months from the date of attestation of mutation and the suit having been filed on 21-12-1994 could not be said to be barred by limitation.

Zafar Iqbal Bajwa for Petitioner.

Malik Ghulam Abbas for Respondent.

Date of hearing: 8th December, 2003.

2008 M L D 312

[Lahore]

Before Fazal-e-Miran Chauhan and Hasnat Ahmad Khan, JJ

ILYAS alias BILLU---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1 of 2007 in Criminal Appeal No. 207 of 2007, decided on 18th September, 2007.

Criminal Procedure Code (V of 1898)---

----S.426---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Suspension of sentence---Petitioner/accused was sentenced only for live years, which was existed a short sentence---No likelihood existed of appeal being taken up in near future---Benefit of S.382-B, Cr.P.C. was also given to the petitioner---Conviction and sentence awarded to the petitioner was suspended till the final decision of his appeal.

Nazeer Ahmad and 2 others v. The State 2005 PCr.LJ 657, Karachi and Abdul Hameed v. Muhammad Abdullah and others 1999 SCMR 2589 rel.

Altaf Ibrahim Qureshi for Applicant.

Mian Bashir Ahmad Bhatti, D.P.G. for the State.

2008 M L D 321

[Lahore]

Before Ijaz Ahmad Chaudhry, J

FALAK SHER---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1676-B of 2007, decided on 24th July, 2007.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss. 405, 406 & 420---Pre-arrest bail, grant of---Civil dispute seemed to have been converted into criminal offence---Complainant himself had stated that buffalo in question had been kept at the dera of a person by accused and said person had promised with the complainant to return the same, but subsequently told him that the buffalo had been taken away by the accused---Except for the statement of co-accused, nothing was on record to prima facie connect accused with the commission of crime---Even otherwise, the ingredients of breach of trust as defined in S.405, P.P.C., were not made out in the case---Ad interim pre-arrest bail already granted to accused was confirmed, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Malik Sajjad Haider Maitla for the Complainant.

Sh. Imtiaz Ahmad for the State with Abid Qayyum, A.S.-I.

2008 M L D 323

[Lahore]

Before Muhammad Khalid Alvi, J

MAZHAR HUSSAIN and another---Petitioners

Versus

THE STATE---Respondents

Criminal Miscellaneous No. 5888-B of 2007, decided on 20th September, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal code (XLV of 1860), Ss.452, 506 & 186---Bail, grant of---Offences with which accused were charged, did not fall within the prohibitory clause of S.497, Cr.P.C.---Bail in such cases should be granted as a matter of rule, however, in exceptional circumstances could be refused---No exceptional circumstances were pointed out by the Law Officer---Accused was admitted to bail, in circumstances.

Malik Muhammad Imtiaz Mahi for Petitioners.

Shafqat Ullah Butt, DPG.

G. Husnain, S.-I.

2008 M L D 324

[Lahore]

Before Mian Saqib Nisar, J

Ch. MUHAMMAD BASHIR---Petitioner

Versus

MEHR DIN and 3 others---Respondents

Civil Revision No.122-C of 2000, decided on 12th December, 2003.

Civil Procedure Code (V of 1908)---

----O. XLI, Rr. 24, 27 & 31---Canal and Drainage Act (VIII of 1873), S.68-A---Order of the Divisional Canal Officer assailed in suit---Averments made in the plaint were denied in the written statement on which evidence was led by the parties---Composite and comprehensive issues encompassing the controversy between the parties were framed---Appellate Court failed to give finding on the main plea---Effect---Incumbent upon the Appellate Court to have decided the other grounds of attacks as well in the light of averments made in the plaint and denied by the defendant in the written statement and on which evidence was led by the parties---If the appellate Court omitted to decide a point, no presumption could be raised that same was given up by the concerned party.

Muhammad Farooq Qureshi Chishti for Petitioner.

Ras Tariq for Respondent.

Date of hearing: 12th December, 2003.

2008 M L D 329

[Lahore]

Before Sh. Azmat Saeed, J

MUHAMMAD ASLAM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2130-B of 2007, decided on 8th October, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---Accused had sought bail on the grounds; that case against him was outcome of malice and misunderstanding; that no overt act or motive had been assigned to him as he being empty-handed did not share the common intention and did not cause even a scratch to deceased; that complainant, who happened to be the husband of deceased and eye-witness of occurrence, had sworn an affidavit to the effect that he had no objection for the grant of bail to accused and that accused was not present at the time and place of occurrence; and that accused was behind the bars for the last about a year without any progress in the trial---State Counsel and complainant did not seriously object to the grant of bail on the grounds urged at the bar by accused---Provisions of further inquiry were fully attracted making out a case for interference---Accused was released on bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Imtiaz Ahmed Sheikh for the State.

Malik Tanvir Sub-Inspector.

Ch. Pervez Akhtar Gujjar for the Complainant.

2008 M L D 330

[Lahore]

Before Asif Saeed Khan Khosa, J

FAYYAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1 of 2006 in Criminal Appeal No. 193 of 2003, decided on 21st February, 2007.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), Ss.302(b) & 379---Suspension of sentence---F.I.R. in the case had been lodged with a delay of twenty-five days and even in that belated F.I.R. only a suspicion had been expressed by the complainant regarding involvement of accused in the alleged murder---Alleged murder had remained un-witnessed---Apparently the prosecution had relied upon the last seen evidence and the evidence regarding selling of some goats by petitioner/accused which goats statedly belonged to the deceased---Worth of such pieces of circumstantial evidence would require a serious reconsideration by the court at the time of hearing of the petitioner's main appeal---Petitioner was a child within the preview of the Juvenile Justice System Ordinance, 2000 and he was tried by a Juvenile Court---Petitioner was behind the bars since the year 2002 and no prospect existed of an early hearing of the main appeal---Allowing petition, sentences passed by the Trial Court against, the petitioner were suspended and he was admitted to bail.

Altaf Ibrahim Qureshi for Petitioner-Appellant.

Mian Bashir Ahmad Bhatti, Deputy Prosecutor-General for the State.

2008 M L D 332

[Lahore]

Before Ijaz Ahmad Chaudhry, J

TARIQ SAJJAD alias TAHIR alias TAHLI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1683-B of 2007, decided on 23rd July, 2007.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.337-A(i)(ii) & 337-F(v)/34---Pre-arrest bail, confirmation of---Only one injury fell under S.337-A(ii), P.P.C. which was attributed to co-accused and other injuries in the case fell under Ss.337-A(i) & 337-F(i), P.P.C., which were bailable---Even otherwise, accused had joined the investigation and report under S.173, Cr.P.C. had been submitted before the Trial Court and no useful purpose would be served by sending accused to jail---Ad interim pre-arrest bail already granted to accused was confirmed, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Tahir Mehmood for the Complainant.

Sh. Imtiaz Ahmad for the State with Muhammad Akram, A.S.-I.

2008 M L D 333

[Lahore]

Before Syed Jamshed Ali, J

SHERA and others---Appellants

Versus

Haji SARDAR KHAN through his legal Representatives and others---Respondents

Regular Second Appeal No. 196 of 1987, heard on 12th September, 2003.

(a) Punjab Pre-emption Act (I of 1913)---

----S.30---Limitation Act (IX of 1908), Art.144---Limitation---Starting point---Co-sharers in a joint Khata orally sold the land vide seven oral transactions and seven mutations were sanctioned on 22-5-1967, 13-12-1968, 25-1-1969 and 27-10-1969---All the mutations were reviewed and cancelled and a consolidated mutation was attested on 13-10-1973---Suit for pre-emption was filed on 28-9-1974 and decreed on 28-5-1978---Contention was that according to the averments in the plaint original oral sale transactions were made in the years 1967-1968-1969 and under the sales the purchasers had entered into actual physical possession of the land, therefore, under S.30 Punjab Pre-emption Act 1913 time started running from the aforesaid dates and the suit filed on 28-9-1974 was patently barred by time---Statement of one of the respondents who appeared as witness had admitted that the appellants were in possession of the land since 1969 and said statement as well as the Khasra Girdawari were relied upon---Validity---Mutations initially sanctioned showed that the vendors had sold the land from the un-­partitioned joint Khata which meant that the sale was from each and every Khasra number of the undivided Khata---Mere possession of some of the vendees as reflected by Khasra Girdawari on particular Khasra numbers or the statement of the plaintiff that the respondents were in possession of some land since 1969, could not be accepted as possession under the sale because a fraction of a joint Khata was not capable of actual physical possession.

Muhammad Rafi through Legal Heirs v. Nawab Din 1995 SCMR 1903 and Ghulam Samar v. Mazhar Ahmad PLD 1995 SC 677 fol.

(b) Punjab Pre-emption Act (I of 1913)---

----S.13---Civil Procedure Code Act (V of 1908), O.XLI, R.24---Pre­emption suit---Appeal was dismissed on the sole ground that on the decree sheet instead of a court-fee stamp of Rs.2 a court-fee stamp of Re.1 was affixed---Contention was that the appeal could not have been dismissed on this ground and the appellants were to be given an opportunity to make good deficiency of the court-fee affixed on the decree sheet under appeal before the First Appellate Court---Pre-emptor had conceded such legal position but stated that the suit was filed 30 years back and since only a short question was involved, the appeal may finally be disposed of by the High Court on merits instead of sending the same back to the First Appellate Court---Validity---Request being just and proper, case was examined on merits---Appeal having no merits was accordingly dismissed.

Malik Allah Yar for Appellants.

Ishsan-ul-Haq Bhalli for Respondent.

Date of hearing: 12th September, 2003.

2008 M L D 337

[Lahore]

Before Iqbal Hameed-ur-Rehman, J

MUHAMMAD TARIQ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous 1893-B of 2007, decided on 3rd October, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 376 & 511---Bail, refusal of---Allegation against accused was that he attempted to commit Zina with the complainant fully armed with weapon---Accused trespassed into the house of the complainant and tried to forcibly remove the shalwar of the complainant and tried to outrage her modesty---In an Islamic Society in which Islamic social and cultural values were being mould up, mild interpretation of words which constituted serious offences, would only give an impetus to immorality and pollution of social values; it also exposed innocent women folk of the country to grave hazards of criminal assaults by unscrupulous and bad characters of society, which constituted a heinous offence in an Islamic society, and could not be taken lightly---In the present case complainant, after hectic efforts having got registered the case against, accused, delay had been explained in circumstances---Offence under S.511, P.P.C., was made out against accused, which fell within the prohibitory clause of S.497, Cr.P.C.---No mala fide seemed on the part of the complainant or the police or the false deliberations---Bail petition dismissed in circumstances.

Atta Muhammad v. The State 2007 PCr.LJ 1149 and 1998 SD 211 rel.

Ch. Muhammad Tariq Manj for Petitioner.

Shamsul Qamar Khatak for Complainant.

Ch. Muhammad Bashir Bhatti, D.P.G.

Ghulam Muhammad S.-I. with record.

2008 M L D 339

[Lahore]

Before Sh. Azmat Saeed, J

MUHAMMAD SHAFI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1782-B of 2007, decided on 29th October, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 324, 109 & 34---Bail, grant of---Further inquiry---Accused was only attributed proverbial lalkara with no attribution of any overt act whatsoever either to deceased or the injured---Accused was father of co-accused---Accused was stated to be empty-handed and during investigation was found not present at the time and place of occurrence and was found innocent in circumstances---Accused was behind the bars since his arrest and there was no progress in the trial, which was yet to conclude---Continuous detention of accused would be of no avail---Case of accused squarely falling within the ambit of further inquiry, he was admitted to bail in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Asif Karim D.P.G. Tahir Mehmood for the Complainant.

A.S.-I. Farid.

2008 M L D 341

[Lahore]

Before Ijaz Ahmed Chaudhry, J

SIKANDAR MUMTAZ---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, GUJRAT and 3 others---Respondents

Writ Petition No. 8479 of 2007, decided on 12th September, 2007.

Criminal Procedure Code (V of 1898)---

----S.514---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Surety bond, forfeiture of---Car in question was given on superdari to petitioner against furnishing of surety bond---Petitioner, on the direction of Trial Court, failed to produce the car, on the pretext that it had been stolen and he had got F.I.R. registered---Trial Court forfeited the surety bond, which order was maintained by Appellate Court---Validity---Petitioner was bound to produce the car before Trial Court as and when it was required but petitioner failed to produce the same---Criminal case was registered against petitioner under S.406, P.P.C.---Petitioner, prima facie, to cover up the default got registered a case that his. car had been stolen---Surety bond was ordered to be verified which was found to be fake---Conduct of petitioner did not permit him for any lenient view and he was not entitled to any extraordinary relief, as he did not submit genuine surety bond at the time of taking car on superdari---Both the Courts below had rightly confiscated surety bond submitted by petitioner on his failure to produce the car before Court as he was bound to produce same as per condition of superdari-nama---Petition was dismissed in circumstances.

Shoaib Zafar for Petitioner.

2008 M L D 343

[Lahore]

Before Muhammad Khalid Alvi, J

IQBAL HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1337-B of 2007, decided on 6th August, 2007.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S. 489-F---Pre-arrest bail, refusal of---Offence alleged against accused though was punishable with only three years, but the conduct of accused had spoken volumes---Accused was not entitled to extraordinary relief of pre-arrest bail---Bail petition, was dismissed in circumstances.

Bilal Butt for Petitioner.

Sardar Noor Akbar Khan for the Complainant.

Ishaq Masih Naz, Dy. P.G. for the State.

Nasir, A.S.-I.

2008 M L D 345

[Lahore]

Before Hasnat Ahmad Khan, J

NOOR MUHAMMAD and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 669-B 2007, decided on 16th July, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.337-A(ii), 337-L(ii), 148 & 149---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10 & 11---Bail, grant of---Further inquiry---Accused were behind the bars since April, 2005 and though after submission of the challan, the charge was framed about two years ago, but the trial was lingering on, on one pretext or the other---Originally it was not the case of the complainant that his sister was abducted by accused, but said allegation was levelled through a supplementary statement---Statement of the alleged victim showed that she was abducted by accused on the date and time of occurrence which was given by the complainant for causing injuries to him and other witness---Such prima facie had shown that prosecution had not come with clean hands---Alleged abductee had married co-accused in lieu of an exchange marriage---Main co-accused from whose possession the abductee was recovered, had been allowed bail---Challan though had been submitted, but for certain unavoidable circumstances the trial had not been concluded---Case of accused having become that of further inquiry the start of the trial would not debar them from getting the bail---Accused were also entitled to bail following the rule of consistency as co-accused whose case was at par with that of accused had already been released on bail---Accused were admitted to bail, in circumstances.

Anwar-ul-Haq for Petitioners.

Sh. Imtiaz Ahmad for State with Iftikhar Ahmad, S.-I.

Complainant in person.

2008 M L D 348

[Lahore]

Before Ijaz Ahmad Chaudhry, J

GHULAM SHABBIR alias BAKRA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 372-B of 2007, decided on 24th July, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 11---Bail, grant of---Further inquiry---No allegation had been levelled against accused for any attempt to commit Zina with alleged abductee---Alleged abductee in her statement under S.161, Cr.P.C. had stated that co-accused had actually enticed her away and accused was sitting on the other side of the road; that she was kept on sitting with accused and co-accused tried to commit Zina with her and that it was accused who restrained co-accused to do that---Value of alleged improvement made by alleged abductee during the trial, would be seen by the Trial Court at the time of conclusion of the trial, which prima facie was contradictory with the statement made by her before the Police under S.161, Cr.P.C.---Accused for the time being had succeeded in making out a case of further inquiry---Commencement of the trial was no ground to withhold the bail when the case of accused called for further inquiry falling under S.497(2), Cr.P.C.---Accused was admitted to bail, in circumstances.

Muhammad Bilal Butt for Petitioner.

Khan Wajid Nawaz Khan for the Complainant.

Rao M. Atif Nawaz for the State with Mehr Ali, A.S.-I.

Muhammad Alam, Ahlmad, with record.

2008 M L D 350

[Lahore]

Before Sardar Muhammad Aslam and Fazal-e-Miran Chauhan, JJ

GHULAM HUSSAIN---Petitioner

Versus

THE STATE and 2 others---Respondents

Writ Petition No. 1553 of 2007, decided on 3rd September, 2007.

National Accountability Ordinance (XVIII of 1999)---

----S.9(a) & Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Bail, grant of---Delay in trial---Despite direction by High Court for conclusion of trial within a period of four months, prosecution failed to conclude the trial---Effect---Speedy trial was the right of accused and prosecution failed to explain long delay occurring in conclusion of trial---Direction issued by High Court having not been complied with, no fault could be attributed to accused---Keeping accused further behind the bars, would amount to denial of justice---High Court in exercise of Constitutional jurisdiction allowed bail to accused.

Sittar Sahil for Petitioner.

Ali Tipu for NAB.

2008 M L D 352

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

Khawaj MUHAMMAD KHAN TANOLI---Petitioner

Versus

THE STATE and 2 others---Respondents

Writ Petition No. 6926 of 2006, heard on 25th April, 2007.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(iv)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Bail, grant of---Delay in trial---Accused being customs clearing agent got released goods of his client by fixing forged/fictitious bank stamps of "cash received" on ex-bonded bills of entry---Accused sought bail after arrest on the ground that he was arrested on 8-6-2005 and not even a single witness was recorded---Validity---Despite submission of original Reference as far back as on 21-4-2005, no progress towards commencement of trial had been made---Any further indefinite confinement of accused would not serve any useful purpose---Accused was suffering incarceration for the last about two years and his further detention would amount to punishment before conviction, which was not permissible in criminal jurisprudence---High Court in exercise of Constitutional jurisdiction granted bail after arrest to accused---Petition was allowed accordingly.

Mian Muhammad Rashid v. The State and others Writ Petition No. 1495 of 2007 rel.

M.A. Malik assisted by Sittar Sahil for Petitioner.

Misbah-ul-Hassan, Special Prosecutor for NAB with Rooman Zaheer, Assistant Director/I.O. NAB Punjab for Respondents.

Date of hearing: 25th April, 2007.

2008 M L D 354

[Lahore]

Before Fazal-e-Miran Chauhan, J

ABIDA PARVEEN---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, DISTRICT FAISALABAD and 57 others---Respondents

Writ Petition No. 7433 of 2007, decided on 24th September, 2007.

Criminal Procedure Code (V of 1898)---

----S.22-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of case---Application for---Justice of Peace directed the police to look into the matter---Case having not been registered by the Police, petitioner filed contempt petition which having been dismissed, petitioner had filed constitutional petition---Report of concerned S.H.O. showed that no proceedings were being initiated because the version of the petitioner was false---Prima facie no ground was made out for interference in the- impugned order---Counsel for petitioner had failed to point out any illegality or irregularity in the impugned order---Petitioner could file private complaint against the culprits if so advised.

Ch. Salamat Ali Haidary for the Petitioner.

Shoaib Zafar for Respondents.

Faisal Ali Qazi, A.A.-G. along with Zafar Iqbal S.H.O. Sadar Faisalabad.

2008 M L D 356

[Lahore]

Before Ijaz Ahmad Chaudhry, J

GHULAM FARID---Petitioner

Versus

MUHAMMAD JAVED IQBAL and another---Respondents

Criminal Miscellaneous No. 4412-C.B. of 2007, decided on 13th September, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), S.377---Bail, grant of---Petition for cancellation of bail---Respondent/accused, during the investigation had been declared innocent and placed in column No.2---Medico-legal Report showed no redness around the anus of the victim as observed by the Doctor---Prosecution version revealed that, sodomy had been committed with victim by six persons---Possibility of falsely implicating the innocent persons by widening the net, could not be ruled out---Medical examination of the victim was conducted after 32 hours of alleged occurrence---Whether semen could be detected in the anus with such delay during which victim must have passed stools, was a question of further inquiry---Contradiction existed between the medical evidence and the ocular account---Medico-legal Report showed no signs of violence on the person of victim, which had created doubt in the prosecution version---Case against accused, in circumstances, was one of further inquiry---Nothing was to be recovered from accused and no useful purpose would be served by sending accused in jail when report under S.173, Cr.P.C. had already been submitted in the court---Trial Court had rightly allowed bail before arrest to accused and no ground was made out for cancellation of the same.

Arshad Ali Chohan for Petitioner.

A.D. Naseem for Respondent No.1 accused.

Syed Faisal Raza Bokhari, Deputy Prosecutor General for the State.

Zafar-ul-Hassan, S.-I. with record.

2008 M L D 358

[Lahore]

Before Mian Muhammad Najum uz Zaman, J

MUHAMMAD SALEEM alias LADA---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 344-M of 2007, decided on 7th May, 2007.

Criminal Procedure Code (V of 1898)---

----Ss.243 & 561-A---Penal Code (XLV of 1860), Ss. 382 & 411---Quashing of order---Conviction on confessional statement of accused---Trial Court had to record confessional statement of accused as nearly as possible in the words used by him and after recording the same, if accused would show no sufficient cause why he should not be convicted, the Magistrate could convict him accordingly---Trial Court, in the present case, while recording confessional statement of accused had neither committed any illegality nor had violated provisions of S.243, Cr.P.C.---Accused/petitioner had already undergone imprisonment for five months and fifteen days as well as had paid fine imposed by the Trial Court---Impugned order was set aside, in circumstances.

A.D. Nasim for Petitioner.

Saif Ullah Khan for Respondent No.2.

Naeem Tariq Sangehra, DPG.

2008 M L D 360

[Lahore]

Before M. Bilal Khan, J

SHABBIR A.HMED---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 404-B of 2005, decided on 18th February, 2005.

Criminal Procedure Code (V of 1898)---

----S.497(2)---.Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Bail, grant of---Further inquiry---Accused during the course of investigation had been found innocent and a report for cancellation of the case had been submitted to the Magistrate, who, however, did not agree with the said report---Alleged abductee, according to her National Identity Card, was more than 24 years of age and she had sworn in her affidavit that she had contracted marriage with accused after accused had divorced her sister---Said divorced sister of alleged abductee was one of the witnesses of said Nikah Nama---Almost sixteen months had elapsed and according to the Police, report under S.173, Cr.P.C. had been submitted in the court---Allegations levelled in the F.I.R. were to be thrashed out during the course of trial in view of the peculiar facts and circumstances of the case---Case of accused being one of further inquiry within the contemplation of subsection (2) of S.497, Cr.P.C. accused was admitted to bail.

A.D. Naseem for Petitioner.

Sardar Bilal Ahmed, for the State.

Muhammad Javid Deputy Superintendent, Central Jail Gujranwala.

Maqsood Baig, A.S.-I. P.S. Civil Lines Gujranwala.

2008 M L D 362

[Lahore]

Before Mian Hamid Farooq, J

Begum HIJAB IMTIAZ ALI and others---Appellants

Versus

SALIM MUMTAZ SYED and 3 others---Respondents

Regular Second Appeal No. 60 of 1993, heard on 21st May, 2003.

(a) Civil Procedure Code (V of 1908)---

----S.100---Second appeal---Recovery of amount---Dispute between the ,parties was with regard to distribution of sale price of certain letters---Both plaintiff and defendant were real sons of an eminent writer of Urdu literature and the letters in question were written by different leaders and scholars to the father of the parties---Defendant was in possession of the letters who sold the same to National Museum of Pakistan---Plaintiff claimed half of the sale proceeds received by the defendant---Some of the letters were addressed to the defendant by the father of the parties---Trial Court dismissed the suit but Appellate Court reversed the findings of the Trial Court and decreed the suit to the extent of the sale proceeds of the letters addressed to the father but declined to give any share in the sale proceeds of the letters addressed to the defendant---Validity---Appellate Court had rightly grasped the real issues and had come to the just and fair conclusion---Judgment passed by the Trial Court was not sustainable in law as it was the result of misreading and non-reading of record and suffered from legal errors and the same had been rightly rectified by the Appellate Court---High Court declined to restore the judgment of Trial Court and that of the Appellate Court was maintained.

(b) Civil Procedure Code (V of 1908)---

----S. 100---Second appeal---Judgment at variance---Effect---When judgment of Lower Appellate Court is neither contrary to the evidence nor in violation of the principles of natural justice, such judgment should ordinary be preferred.

Mir Muhammad alias Miral v. Ghulam Muhammad PLD 1996 Karachi 202 and Ilamuddin through legal heirs v. Syed Sarfraz Hussain through legal heirs and 5 others 1999 CLC 312 rel.

Sakhawat Ali Saqi for Appellants.

Rana Rashid Ikram Khan for Respondents.

Date of hearing: 21st May, 2003.

2008 M L D 365

[Lahore]

Before Mian Muhammad Najum uz Zaman, J

Major Retd. REHMAT-ULLAH BHUTTA---Appellant

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE and 2 others---Respondents

Criminal Appeal No. 1973 of 2004, heard on 3rd September, 2007.

Penal Code (XLV of 1860)---

----Ss.406, 419, 420, 468 & 471---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Allegation against accused was that he was a commission agent and running his business through a show-room; that he had assured appellant that the vehicle in dispute was under no encumbrance, the customs and other duties having already been paid---Being satisfied by said assurance, appellant paid amount to accused as his commission---Later on, the Customs Authorities impounded the vehicle in question, because the customs duty was not paid---Said facts, prima facie, did attract the ingredients of cheating---Appellant had also filed civil suit against accused for the recovery of disputed amount, but that conduct of appellant was not sufficient to exonerate accused of his criminal liability---Proper opportunity, in circumstances should have been provided to appellant to prove his case against accused---Impugned order passed by the revisional court amounted to throttling prosecution case at the initial stages depriving appellant/complainant of his statutory right---Impugned order being not persuasive in nature, was not sustainable---Appeal was allowed and case was remanded to the Trial Court for its decision on merits.

Agha Abul Hassan Arif for Appellant.

M. Shan Gull for the State.

Naeem Tariq Sanghero BPG.

Date of hearing: 3rd September, 2007.

2008 M L D 368

[Lahore]

Before Syed Shabbar Raza Rizvi, J

NAWAB KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 8734-B of 2007, decided on 18th December, 2007.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.406---Ad interim pre-arrest bail, confirmation of---F.I.R. had clearly mentioned that Rs.25 Lacs were paid by the complainant to accused to do a business, in other words, the complainant gave a loan to accused for the purpose of spending the same or for appropriation of his business---F.I.R. had shown that accused returned most of the borrowed money except Rs.2,05,000, which was a small fraction of Rs.25 Lacs, the original amount which was borrowed by the accused from the complainant---Rupees 25 lacs could not be said to have been misappropriated by accused---Accused might be blamed for not returning or clearing the loan as required under the terms of agreement between the parties, nevertheless, prima facie S.406, P.P.C. was not attracted in the facts and circumstances of the case---Contents of F.I.R. did not make out a case against accused under S.406, P.P.C. and for the same reason involvement of accused on ground of mala fide, could not be ruled out---Ad interim bail already granted to accused was confirmed, in circumstances.

Iqbal Mehmood Awan for Petitioner.

Syed Shafait Ahmad Gillani for the Complainant.

Asif Mehmood Cheema Deputy Prosecutor General, Muhammad Nawaz, S.-I.

2008 M L D 370

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Malik ASIM SAEED and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 7709-B of 2007, decided on 18tH October, 2007.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.406---Ad interim pre-arrest bail, confirmation of---Allegation against accused was that he deprived complainant of amount for sending hint abroad with promise to employment there---Application of accused for pre-arrest bail was allowed by the Special Judge on the statement made by the complainant that a compromise had been effected between them and he was left with no claim against accused---Present F.I.R. was also for the same amount, but with a different story---Mala fide on the part of the complainant was clear, who seemed to have converted the civil dispute between the parties into criminal offence by lodging two F.I.Rs. with different stories regarding the same amount to pressurize them for the return of the amount---Even otherwise as per statement made before the Special Judge, complainant was left with no claim against accused and somersault could not be allowed to be taken---In the present case nothing was to be recovered from accused and sending them in jail would not serve any useful purpose to the prosecution---Ad interim pre-arrest bail granted to accused was confirmed, in circumstances.

Muhammad Shoaib Khokhar for Petitioners.

Syed Faisal Raza Bokhari, D. P. General for the State.

Zia-ur-Rehman Tarar for Complainant.

Hafiz Muhammad Aneeq, S.-I. with record.

2008 M L D 373

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

TANVEER AHMED KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Appeal No. 1296 of 2006, heard on 17th January, 2007.

Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(b)---Criminal Procedure Code (V of 1898), S.410---Sentence, reduction in---Appellant who was convicted under S.9(b) of Control of Narcotic Substances Act, 1997, prayed for reduction in his sentence on ground that he was not a previous record-holder---Appellant was in judicial custody since the date of his arrest hence to meet the ends of justice his sentence of 3 years' R.I. was reduced to the period already undergone by him which was one year and seven months---Sentence of fine of appellant was also substantially reduced.

A.D. Naseem for Appellant.

Ch. Muhammad Nazeer for Respondent.

Date of hearing: 17th January, 2007.

2008 M L D 374

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

MUHAMMAD NADEEM---Appellant

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2888-B of 2004, decided on 11th May, 2004.

Criminal Procedure Code (V of 1898)---

----S.497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18-Bail grant of---Allegation against accused was that he caught hold of complainant and attempted to commit zina-bil-jabr with her---Accused, according to police officer, during investigation was found to be innocent and that challan had already been submitted in the court, but the trial had not commenced---Case being fit for grant of bail, accused was admitted to bail.

A.D. Naseem for Petitioner.

Malik Muhammad Awais Khalid for the State.

Muhammad Shahbaz, A.S.-I. P.S. Chak Bedi, District Pakpattan.

2008 M L D 376

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD SHARIF---Petitioner

Versus

SAEE MUHAMMAD and 5 others---Respondents

Criminal Miscellaneous No. 7743-B-C of 2004, decided on 1st December, 2004.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)---Penal Code (XLV of 1860), Ss.419, 420, 468 & 34---Application for cancellation of bail---Question involved in the case was as to whether 'Talaq' allegedly given by applicant to his wife, was made by him or not---Prima facie it seemed that Talaq deed was a forged document---Even otherwise they had never received the notice of Talaq allegedly issued by applicant and as per certificate issued by Secretary Union Council, no proceedings in that regard had taken place before the Union Council as required under the law---Marriage between the applicant and wife had not been denied---Matter was not a case of bail before arrest---Bail granting order in favour of respondents passed by the Trial Court, was withdrawn and their bail was cancelled.

1995 CLC 724; 1992 SCMR 1273; 1994 SCMR 2098; 1995 PCr.LJ 1925 and PLD 2003 Lahore 747 rel.

Sardar Muhammad Tariq Dreshak for Petitioner.

A.D. Naseem for Respondents Nos. 1, 2, 3 and 5.

Jehangir Ashraf Waince for Respondent No.4.

Abdul Ghafoor, S.-I. and Rana Tahir Hussain A.S.-I. with record.

2008 M L D 378

[Lahore]

Before Maulvi Anwarul Haq, J

Haji Sheikh ZAHEER AHMAD and another---Petitioners

Versus

Ch. MUHAMMAD ANWAR and 6 others---Respondents

Civil Revision No. 1239 of 2006, decided on 19th December, 2007.

Civil Procedure Code (V of 1908)---

----Ss.12(2) & 115---Challenging judgment and decree on allegation of fraud and misrepresentation---Plaintiff .filed suit questioning power of attorney and praying for decree for possession---Suit was decreed by the Trial Court and Appellate Court---Defendants filed application under S.12(2), C.P.C. for setting aside said judgment and decree contending that plaintiff had entered into an agreement of sale in favour of defendants; consideration was settled, token money as advance was also paid and possession of property was delivered---Said agreement narrated that the possession would be delivered at the time of registration of the sale-deed---Document produced on record had clearly narrated, that suit regarding the property was pending in a Civil Court and that stay order stood issued and that for that reason plaintiff was unable to perform the agreement---Agreement further provided that in case the suit was decided against plaintiff then he would return the amount received by him from the defendants with compensation---Pro note was executed by plaintiff in the said amount in favour of defendants---Question of execution of the sale deed and its registration and ultimate transfer in favour of the petitioners, could have arisen only in case suit was decided in favour of plaintiff as it was so narrated in the agreement---Case was that of full disclosure and further stipulation between the parties vis-a-vis the result of the pending suit either way, High Court declined interference in revision.

Muhammad Shahban and others v. Falak Sher and others 2007 SCMR 882; Muhammad Aslam and another v. Nazar Muhammad and others 2006 CLC 1804; Sunni View Cooperative Housing Society v. Irshad Hussain and others 1993 CLC 2336 and Wafaq Pakistan v. Awam-ul-Nass 1988 SCMR 2041 rel.

Mian Ghulam Rasool and M. Shahid Taswar for Petitioners.

2008 M L D 382

[Lahore]

Before Mian Saqib Nisar, J

MUHAMMAD HUSSAIN and others---Petitioners

Versus

EHSAN ULLAH---Respondent

Civil Revision No. 14 of 2000, heard on 22nd May, 2003.

Punjab Pre-emption Act (IX of 1991)---

----S. 13---Right of pre-emption, exercise of---Talb-i-Muwathibat---Proof---Failure to produce independent witnesses---Pre-emptor claimed superior right of pre-emption on the basis of Shafi-e-Sharik, Shafi-e-Khalit and Shafi-e-Jar---Independent witnesses, who were present at the time of making of Talb-i-Muwathibat, were not produced by the pre-emptor rather only close relatives were produced---One of the witnesses produced by the pre-emptor had stated in his cross-examination that none else was present at the time of making of Talb-i-Muwathibat and the same was in contradiction of the statement of the pre-emptor---Trial Court dismissed the suit but Appellate Court allowed the appeal and decreed the suit in favour of the pre-emptor---Validity---Other persons who, according to the statement of pre-emptor, were present at the relevant time could be the independent witnesses but for no good reasons had not been produced by the pre-emptor---Producing of such witnesses and their statements had proved' that the making of Talb-i-Muwathibat was an afterthought---Appellate Court having failed to consider such aspect of the matter its judgment and decree was the result of misreading and non-reading of record---Judgment and decree passed by the Appellate Court was set aside and that of the Trial Court was restored---Revision was allowed accordingly.

Taki Ahmad Khan for Appellant.

S.M. Masud for Respondent.

Date of hearing: 22nd May, 2003.

2008 M L D 388

[Lahore]

Before Syed Sakhi Hussain Bokhari, J

MUHAMMAD RIAZ and 9 others---Petitioners

Versus

TOWN COMMITTEE PEER MEHAL through Administrator/Tehsil Nazim, Tehsil Council---Respondent

Civil Revision No. 1990 of 2002, decided on 4th June, 2003.

Specific Relief Act (I of 1877)---

----S. 42---Title over suit property---Concurrent findings of fact by the courts below---Site-plan, non-approval of----Plaintiff were not owners of the plot for which they had submitted site-plan for approval---Authorities declined to approve the site-plan---Validity---Claim of the plaintiffs was baseless and the Trial Court had rightly dismissed their suit---Appellate Court had rightly dismissed the appeal after evaluating the entire material available on record---High Court found no justification to disturb concurrent findings recorded by the Courts below---Revision was dismissed in circumstances.

Zafar Iqbal Chauhan for Petitioners.

Fauzi Zafar for Respondent.

2008 M L D 390

[Lahore]

Before Ali Nawaz Chowhan, J

MUHAMMAD SIDDIQUE---Appellant

Versus

Mst. SUI BEGUM and another---Respondents

Regular Second Appeal No.37 of 1996, heard on 13th May, 2003.

Specific Relief Act (I of 1877)---

----S. 27(b), third illustration---Specific performance of agreement to sell---Non-inquiry about the possession of suit-land by the vendee---Effect---Plea of bona fide purchaser for valuable consideration with-out knowledge---Plaintiff entered into the sale agreement of suit-land which was under his possession---Owner admitted such agreement but contended that the plaintiff was not ready to pay the balance amount and to get executed the registered sale-deed hence the subsequent sale---Subsequent vendees contended that they had purchased the suit property for value and they were bona fide purchasers without notice---Validity---Subsequent vendees having not inquired about the factum of possession were not covered under the explanation stated in S. 27(b) of Specific Relief Act, 1877, saying that they had no notice of the original contract---Concurrent findings of both the Courts below were set aside and suit was decreed in favour of the plaintiff.

Malik Muhammad Ishaque and another v. Mirza Almas Ali Beg and others PLD 1969 Lah. 762; Mukhtar Ahmad v. Bashir Ahmad and 3 others PLD 1994 SC 674; Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others PLD 1972 SC 25 and Ramdeni Singh and another v. Gumani Raut and another AIR 1929 Patna 300 ref.

Ch. Aamir Rehman for Appellant.

Mian Sarfaraz ul Hassan for Respondent.

Date of hearing: 13th May, 2003.

2008 M L D 396

[Lahore]

Before Khawaja Muhammad Sharif and Asif Saeed Khan Khosa, JJ

FAYYAZ MAQSOOD and 3 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 840 of 2006, decided on 18th October, 2006.

Criminal Procedure Code (V of 1898)---

----S.426---Penal Code (XLV of 1860), S.302---Appreciation of evidence---Suspension of sentence---Nobody was namedin the F.I.R.--Complainant had stated that he had seen one person running from the spot after the occurrence; that after 6-1/2 years, a person who was undergoing sentence in jail in some other case, on one fine morning when his conscience pricked him, established contact with the complainant party and made confessional statement after becoming approver---No mention of motorcycle was made in the F.I.R..; it was so alleged by the complainant in the supplementary statement, but in that statement too, it was not stated that the motorcycle was having such and such registration number---Case was not that of eye-witness account, but was of circumstantial evidence---Deeper appreciation of evidence though could not be made at bail stage but the fact remained that it was a case of no evidence---Sentence of the accused was suspended and were released on bail.

Ch. Muhammad Abdus Saleem assisted by Zafar Iqbal Chauhan for Appellants.

Ch. Inayatullah for the Complainant.

Tahir Mahmood Gondal, A.A.-G. and Mushtaq, S.-I.

2008 M L D 397

[Lahore]

Before Nazir Ahmad Siddiqui, J

MUHAMMAD RAMZAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1315-B of 2006, decided on 22nd May, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18---Bail, grant of---Delay of three days in lodging F.I.R. was not properly explained---Co-accused had been declared innocent and it had been found during investigation that case against accused appeared to be doubtful and that finding was supported by reasons that neither accused nor wife of complainant were found naked---Statement of said lady recorded under S.161, Cr.P.C. was not in line with the story incorporated in the F.I.R.---No previous history of involvement of accused in such like cases was on record and there was no likelihood of commencement of trial in near future---Accused was admitted to bail, in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Raja Sultan Khurram for the State.

Muhammad Anwar, A.S.I.

2008 M L D 399

[Lahore]

Before Asif Saeed Khan Khosa and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD EJAZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 635-B of 2006, decided on 21st February, 2006.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Bail, refusal of---Second petition filed by accused seeking same relief in the same case---First petition of accused had been dismissed as having been withdrawn after counsel for accused had addressed elaborate arguments on said petition, but had remained unable to convince the court regarding bail of accused---Circumstances of the case had not undergone any material change, only difference was that counsel representing accused was different---Such was not a fresh ground for admitting accused to bail in the same criminal case within a span of about two months of dismissal of his earlier petition by High Court---Prima facie reasonable grounds existed to believe in involvement of accused in the alleged offences---Petition was dismissed, in circumstances.

Ashfaq Ahmad Chaudhry, for the State with Allah Rakha, S.-I. Investigation. Branch Punjab and Muhammad Iqbal Khan A.S.-I with record.

2008 M L D 401

[Lahore]

Before Khawaja Muhammad Sharif and M.A. Shahid Siddiqui, JJ

THE STATE and others---Appellants

Versus

MUHAMMAD IMRAN and others---Respondents

Criminal Appeals Nos. 1660, 314-J and Murder Reference No.638 of 2000, decided on 30th March, 2006.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Matter was reported to the police immediately after occurrence in the hospital---Nothing was on record that prosecution witness was related to deceased in any manner and' he had absolutely no motive to falsely depose against accused---Accused admitted to have participated in the occurrence and caused injuries to deceased at relevant time and place, but he pleaded that he had done so in exercise of his right of self-defence---Validity---Accused under Art.121 of Qanun-e-Shahadat, 1984 was bound to substantiate his plea of self-defence, but he not only declined to appear before the court under S.340(2), Cr.P.C., but also did not produce any evidence to substantiate his said plea---Plea of self-defence taken up by accused at the trial, had never been taken by him at any stage during investigation of the case---Plea of self-defence taken up by accused in his statement under S.342, Cr.P.C., was not even put up to prosecution witness in his cross-examination---Plea of self-defence taken up by accused at the trial, was inconsistent besides being afterthought which he otherwise. failed to substantiate---Prosecution had proved its case against accused to the hilt---Deceased was done to death at a public place, he had sustained as many as 16 injuries on different parts of his body with sharp edged weapon---Deceased was butchered by accused without any immediate cause---In absence of any reason to take lenient view, death sentence awarded to accused by the Trial Court, was confirmed and murder reference was answered in affirmative.

Salman Safdar and Muhammad Sharif Cheema for Appellants.

Muhammad Ahsan Bhoon for Respondents.

Syed Faisal Raza Bukhari and Mrs. Tehseen Irfan for the States.

Date of hearing: 30th March 2006.

2008 M L D 407

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD AKRAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 199 and Murder Reference No.401 of 2002, heard on 15th February, 2007.

(a) Penal Code (XLV of 1860)---

----S. 302(b)-Appreciation of evidence---Benefit of doubt---Eye-witness was a child witness who was 10/11 years of age at the time of recording his statement in Court---Recording of statement of the said child witness by the Investigating Officer after 14 days of the occurrence had cast doubt on the credibility of the same---No justification was available for the witness to remain quiet in the house of his maternal uncle for such a long time---Possibility could not be ruled out that the child witness was assured by his maternal uncle that his parents had been murdered by the accused and he was persuaded to become a witness---Said witness, however, failed to stand the test of cross-examination and his statement was not corroborated by any other independent reliable incriminating evidence, and thus was not worthy of any credence---Accused had no need to make an extra-judicial confession as till that date nothing incriminating was available against him---Motive tried to be introduced during the trial did not fit in the circumstances of the case---Evidence of incriminating recoveries at the instance of accused was not reliable as neither the accused would keep bloodstained weapons intact for 28 days, nor any independent witness of the locality was produced to prove the recovery---Nature and dimensions of the injuries sustained by deceased did not tally exactly with the recovered weapons of offence---No grudge existed between the deceased and the accused---Number of injuries and nature of weapons of offence showed deep rooted enmity between the deceased and the assailant---Accused could not be expected to have killed his own brother while his wife and father were sleeping nearby---Accused was acquitted on benefit of doubt in circumstances.

State v. Farman Hussain and others PLD 1995 SC 1 ref.

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 3---Child witness---Appreciation of evidence---Rule of prudence---Evidence of a child witness being a delicate matter cannot normally be safely relied upon unless corroborated---Great care is to be taken that coaching is not involved in the evidence of child witness.

State v. Farman Hussain and others PLD 1995 SC 1 ref.

Maqbool Ahmad Qureshi for Appellant.

Muhammad Hussain Chachar, Additional Prosecutor General for the State.

Date of hearing: 15th February, 2007.

2008 M L D 417

[Lahore]

Before Hasnat Ahmad Khan, J

ZAMAN KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 3455-B of 2006, decided on 14th December, 2006.

Criminal Procedure Code (V of 1898)---

----S.497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Bail, grant of---Offences allegedly committed by accused did not fall within the prohibitory clause of S.497, Cr.P.C.---Accused was behind the bars since 27-8-2006 and no useful purpose would be served by keeping him further behind the bars---Bail could not be withheld as a matter of punishment---Bail was allowed to accused.

Mehr Khalil-ur-Rehman for Petitioner.

Muhammad Riaz Aura for the State.

2008 M L D 419

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD SHAFIQUE---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 644-B of 2006, decided on 14th February, 2006.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 34 & 109---Bail, grant of---Further inquiry---Nobody had seen accused administering poison to deceased---One of the witnesses mentioned in the F.I.R. had already sworn affidavit regarding falsity of allegations levelled against accused in the F.I.R.---Successive Investigating Officers conducting investigation of the case, had concurred in their opinion . regarding innocence of accused---First challan submitted in the case, showed that name of accused had been placed in column No.2, but subsequently another challan was submitted in the case, wherein accused had been alleged to have abetted his co-accused---State Counsel had expressed his inability to point out any incriminatory evidence in the alleged murder against accused---Record of case contained no evidence against accused---Case against accused calling for further inquiry into his guilt, he was admitted to bail.

Zafar Iqbal Chowhan for Petitioner.

Faisal Naseem Chaudhry, with Naimat Ali, S.-I. with record for the State.

2008 M L D 420

[Lahore]

Before Tariq Shamim, J

MUHAMMAD ASHRAF and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1754-B of 2006, decided on 20th June, 2006.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.337-F(vi), F(ii), 337-L(ii), 337-H(ii) & 34---Bail before arrest, refusal of---Accused armed with a rifle, whereas his co-accused armed with Sota along with other co-accused attacked complainant party and inflicted serious injuries on the person of prosecution witness who suffered a fracture of the bone and displacement of joint of the shoulder---Case of accused was fully covered under S.337-F(vi), P.P.C., punishable with a sentence of seven years---Accused were found fully involved by the Investigating Officer---Accused had not been able to point out any mala fides on the part of the complainant for their false involvement in the case which was a condition precedent for grant of extraordinary concession of pre-arrest bail---F.I.R., though was delayed by five days, but said delay had been explained by the complainant---Weapons of offence had yet to be recovered from accused---Ample evidence was available on record to connect accused with the commission of offence alleged against them---Ad interim pre-arrest bail granted to accused, was recalled.

Mian Arshad Latif for Petitioners.

Altaf Ibrahim Qureshi for the Complainant.

Faheem Mumtaz with Ch. Muhammad Iqbal, A.S.-I. for the State.

2008 M L D 425

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD ANWAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 23/J and Murder of Reference No. 282 of 2002, heard on 20th February, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)-Appreciation of evidence---Sentence reduction in---Incident having occurred in daylight and the parties knowing each other very well, mistaken identity of accused was out of question---Eye­witnesses though related to the deceased had no previous grudge against the accused so as to involve him in a false case---Presence of eye-witnesses at the scene of occurrence was natural which was even suggested by the promptly lodged F.I.R.---Minor contradictions in evidence were not material---Direct evidence was supported by medical evidence and circumstances of the case---Story put forward by accused in his statement before the Court, was not supported by any evidence---Conviction of accused was maintained in circumstances---Motive set up in F.I.R. was not proved at the trial---No serious enmity existed between the deceased and the accused---Accused who was 20 years old at the time of occurrence after getting annoyed over a trivial matter, had fired a single shot hitting the deceased at the back of his shoulder---Fire was not repeated by accused to ensure death of the deceased---Sentence of death of accused was altered to imprisonment for life in circumstances.

Salman Safdar for Appellant.

Muhammad Hussain Chachar Addl. Prosecutor General for the State.

Date of hearing: 20th February, 2007.

2008 M L D 437

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

HAYAT ULLAH KHAN and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 3321-B of 2006, decided on 31st May, 2006.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss. 324, 148, 149 & 34---Bail, grant of---Further inquiry---Ocular account stood contradicted by medical evidence---Co-accused, who also allegedly had caused injury to injured prosecution witness, was found innocent during investigation and was not arrested by the police---Fire-arms were recovered from accused during investigation, but no empty was recovered from the spot by agency---No evidence, in circumstances was available- on record to establish that was to say that said weapons were ever used during the occurrence---Prima facie said facts were sufficient to bring case of accused within the folds of further inquiry entitling them to concession of bail---Accused were admitted to bail, in circumstances.

Zafar Iqbal Chowhan for Petitioners.

Ata Mohyuddin Bandial for the State.

Muhammad Iqbal, A.S.-I.

2008 M L D 438

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD YASIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1894-B of 2005, decided on 19th July, 2005.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 109, 148 & 149---Bail, grant of---Further inquiry---Accused himself was complainant in a criminal case while complainant in the case was one of accused---Chances of false implication of accused in the case registered against him due to that reason could not be ruled out---Role of accused was not distinguishable from the role of his co-accused who was declared innocent as both of them were ascribed the same role of causing injuries with fire-arm to deceased, but on the non-vital part of his body---Accused, in circumstances had succeeded in making out a case of further inquiry----Accused, was released on bail, in circumstances.

1987 MLD 1129 rel.

Ch. Khalid Mahmud Arain for Petitioner.

Raja Sultan Khuram uz Zaman for the State.

Muhammad Khalid Mahmud, S.-I. with record.

2008 M L D 440

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD IJAZ and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.719/B of 2006, decided on 15th March, 2006.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324, 337-F(iii), (v) & 34---Bail, grant of---Further inquiry---F.I.R. showed that three fire shots were allegedly made on the person of son of the complainant with .30 bore pistol and .12 bore gun---One fire was attributed to co-accused causing injury. on the person of daughter of the complainant with .30 bore pistol---No injury appeared to have been caused by .30 bore pistol---All injuries on the person of the son and daughter of the complainant had been found pellet injuries---Version of the complainant during the investigation, in circumstances did not stand proved, but it had become suspicious---Investigating Officer present in the court had submitted that none of the accused caused any injury to injured and it was only their co-accused who fired at son of complainant---Version of prosecution become doubtful in view of clear conflict between the contents of F.I.R. and investigation---Case of accused being of further inquiry covered by subsection (2) of S.497, Cr.P.C., he was admitted to bail.

Muhammad Ameer Khan Niazi for Petitioners.

M. Saleem Shad for State.

Faqir Hussain Sub-Inspector.

2008 M L D 446

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD SAJJAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 631-B of 2007, decided on 15th May, 2007.

Criminal Procedure Code (V of 1898)---

---S.497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Principles---Further inquiry---No direct evidence implicating accused in the crime was available---Complainant had just shown his suspicion that some poisonous material was administered to deceased by accused and his brother co-accused---Nobody had seen accused while administering such material to the deceased---No incriminating article had been recovered at the instance of accused during investigation---Accused had no enmity with deceased---Investigation showed that barring positive report of Chemical Examiner, no other incriminating material had been brought on record against accused---All said facts, prima facie, had shown that a case of further inquiry within the ambit of S.497(2) Cr. P. C., had been made out in favour of accused---Benefit of doubt could be granted to an accused even at bail stage---Ultimate conviction and incarceration of a guilty person could repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation could be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run---Whenever reasonable doubt would arise with regard to the participation of an accused in the crime he should not be deprived of benefit of bail---Bail could neither be withheld nor cancelled as punishment---Medical Board had opined that age of accused was between 15 to 16 years---No reasonable. grounds were available for believing that accused had committed non-bailable offence---Accused was suffering incarceration since 16-10-2006---Bail could not be denied to accused simply on the ground that his elder brother had become fugitive from law---Accused could not be, made hostage for the arrest of his elder brother who in fact was employer of deceased---Case for grant of bail having been made out in favour of accused, he was released on bail.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 rel.

Dil Muhammad Alizai for Petitioner.

Sh. Imtiaz Ahmad for State.

Rana Liaqat Ali for the Complainant.

2008 M L D 450

[Lahore]

Before M. Bilal Khan, J

BASIT ISLAM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 3162-B of 2006, decided on 21st June, 2006.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.489-F---Bail, refusal of---Accused had been taking divergent stands at different times; at one stage he stated that he had been compelled by the S.H.O. to execute the cheques in question while he was in illegal custody at the Police Station whereas on another occasion he stated that since the complainant being a Police Official he forcibly procured the cheques from him---Accused had also filed a suit for permanent injunction seeking a stay order against presentation of cheques---Filing of civil suit by accused instead of strengthening his case, had weakened the same---Accused did not deserve the concession of bail in view of peculiar facts and circumstances of the case.

Syed Zaheer Saghir for Petitioner.

Ch. Azhar Siddique Cheema for the Complainant.

Tanvir Ahmad Shami for the State.

2008 M L D 454

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

NASIR AHMED GILL, ADVOCATE---Appellant

Versus

TAHIR MEHMOOD and 2 others---Respondents

Criminal Appeal No. 188 of 2000, decided on 10th May, 2007.

Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)---

----Ss.3, 4 & 7---Criminal Procedure Code (V of 1898), S.417(2)---Penal Code (XLV of 1860), S.302(b)/34---Appeal against acquittal---Maintainability---Right of appeal had been conferred on convict against his conviction and on the Provincial Government from an order of acquittal by a Special Court---No such right had been conferred on the complainant, which implied that the Legislature in its wisdom did not deem it appropriate to extend the right of appeal on a private complainant---Section 7 of Suppression of Terrorist Activities (Special Courts) Act, 1975, at the time of its enactment did not contemplate a right of appeal to any one except convict but on realization that there was no provision in the Suppression of Terrorist Activities (Special Courts) Act, 1975 to check an acquittal, right of appeal was conferred on the Provincial Government by an amendment introduced in S.7---Whenever the Legislature intended to extend the right of appeal, it did so by positive legislation---Contention that keeping in line with the provisions of S.417(2) Cr.P.C. such a right should have been granted to the complainant, was devoid of any substance as a right not conferred by the legislature could neither be read into an enactment nor could the same be supplemented by implication---Appeal being incompetent was not maintainable.

Appellant in person.

Mazhar Sher Awan Addl. Prosecutor General for the State.

Sher Afghan Asadi for Respondents.

2008 M L D 460

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

NADIM AKBAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1003 of 2002 and Murder Reference No. 360 of 2004, heard on 22nd February, 2007.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Occurrence was an un-witnessed one and no suspicion was shown against anyone in the F.I.R.---Although a son of the complainant had deposed at the trial that the deceased while being taken to Hospital in injured condition had told him that the accused had fired at him with whom he had a dispute, yet complainant/father of the deceased who was an old man of 70 years could not be' persuaded to tell lies and he did not level such specific allegation against the accused in the Court---No reliance, therefore, could be placed on the said story---Prosecution witnesses,. both cousins of deceased, who had allegedly seen the accused and the deceased together, had also been introduced to strengthen the prosecution case, because they despite knowing about the injuries caused to the deceased neither informed the police nor the complainant---Both the witnesses of the last seen evidence had even admitted that their statements were not recorded by the Investigating Officer---Evidence about motive being hearsay was inadmissible and the same was not proved---Extra-judicial confession jointly made by all the accused was not supported by the prosecution witness---Recovery of pistol at the instance of accused was of no consequence as neither any crime empty was recovered from the spot, nor the pistol was sent to the Forensic Science Laboratory to establish whether the same was in working order or not---No independent witness was even examined in the Court to prove the recovery---Accused was given benefit of doubt and acquitted in circumstances.

Syed Zahid Hussain Buhkari for Appellant.

Muhammad Hussain Chachar Additional Prosecutor-General for the State.

Date of hearing: 22nd February, 2007.

2008 M L D 465

[Lahore]

Before Sh. Hakim Ali, J

Mst. KAUSAR BIBI and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2883-B of 2004, decided on 11th November, 2004.

Criminal Procedure Code (V of 1898)---

----S.497(2)--Penal Code (XLV of 1860), S.302/34---Bail, grant of--Further inquiry---No incriminating evidence, except the F.I.R. had been brought on record---Ipso dixit of the police, no doubt, was not binding upon the court, but one of accused had got admittedly a suckling baby of 8/9 months, while the other got three children and one of them was of tender age---No recovery having been effected from the possession of accused, their case had become a case of further inquiry as they had been declared innocent in two investigations---Accused, in circumstances, were admitted to bail.

Khalid Mehmood Arain for Petitioners.

Sh. Abdul Samad for Informant.

Sabir Ali Qureshi for the State.

Khalid Mehmood, S. -I.

2008 M L D 467

[Lahore]

Before Ijaz Ahmed Chaudhry, J

SHUJAAT ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 3318/B of 2007, decided on 25th May, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.292, 452 & 506---Bail, refusal of---Accused was alleged to have made a video of the complainant's daughter of the scene in the bathroom of her bedroom while using advance technology and then sent the same to different persons familiar to the complainant:--Accused was alleged to have access to the house of complainant previously being class fellow of the victim daughter of the complainant---Police record showed that electronic devices used for the coverage of alleged nude scene of the complainant's daughter, had been recovered at the instance of accused along with a C.D. containing said movie---Investigating Officer explained that according to the record of a reputed Internet Company accused remained connected through the telephone connection in his house with the computer attached with the telephonic connection installed in the name of the complainant, which prima facie connected accused with the alleged crime---No mala fide had been alleged on the part of the complainant for the false implication of accused by putting the chastity and future career of his young virgin girl---Accused was involved in a case of shameful act and was not entitled to the grant of bail merely for the reason that the offence did not fall within prohibitory clause of S.497, Cr.P.C.---Case of accused fell within the exceptions---Discretion could not be exercised in favour of such accused.

Ghulam Haider Alghazali for Petitioner.

Ch. Muhammad Aslam Sindhu Addl. P.G. for the State.

Sabir Hussain Chaudhry for Complainant.

Fayyaz Ahmad A.S.-I. with record.

2008 M L D 470

[Lahore]

Before Asif Saeed Khan Khosa, J

KARAM ELLAHI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 240-B of 2006, decided on 15th February, 2006.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 324 & 337-F(v)/34---Bail, grant of---Further inquiry---F.I.R. had been lodged with a noticeable delay---F.I.R. showed that accused had caused a fire-arm injury on the right flank of deceased, but prima facie said injury was non-existent in the Postmortem Examination Report of dead-body of the deceased---Investigation, agency had opined that accused was empty-handed during the alleged occurrence and the allegation levelled by the complainant party regarding effective firing by him upon deceased, was incorrect---Nothing had been recovered from the possession of accused during the investigation---F.I.R. itself having referred to a background of bitterness between the parties, possibility could not safely be ruled out of consideration regarding spreading the net wide by the complainant so as to falsely entangle accused in the case---Record showed that during the same incident, accused and his co-accused had sustained injuries, which fact had been completely suppressed in the F.I.R. lodged by the complainant---Accused party had also a cross-version of the same incident through a private complaint instituted by them---Challan had already been submitted in the case---Continued custody of accused was not likely to serve any beneficial purpose---Case against accused calling for further inquiry into his guilt within the purview of subsection (2) of S.497, Cr.P.C., he was admitted to bail.

Muhammad Amir Khan Niazi for Petitioner.

Mian Humayon Afzal for the Complainant.

Ishfaq Ahmad Chaudhry with Amir Afzal, S.-I. with record.

2008 M L D 473

[Lahore]

Before Muhammad Farrukh Mahmud and Syed Shabbar Raza Rizvi, JJ

MUHAMMAD ANWAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 1708, 1804 & 1869 of 2001 and Murder Reference No. 5 of 2002, heard on 24th January, 2007.

(a) Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337-F(vi) & 337-F(iv)---Appreciation of evidence---Injured prosecution witness, son of the deceased, had made dishonest improvement in his statement before the Court that police had recorded the statement of his deceased father before his death---Medical evidence had not supported the prosecution version---Motive behind the occurrence was not proved---Accused could not possibly cover a distance of more than 30/35 Kms on foot while armed with deadly weapon without being noticed at late hours of the night in the presence of various police check posts falling on the way---All the three accused had been found innocent during police investigation---Police opinion was not binding on the Court, but the same could be ignored---Recoveries of weapon were of no consequence when neither any crime empty nor any recovered weapon was sent to Forensic Science Laboratory---Occurrence having taken place in the mid of night when inmates of the house were asleep, accused could not be identified and they had been roped in the case merely on the basis of suspicion---Accused were acquitted in circumstances.

(b) Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337-F(vi) & 337-F(iv)---Appreciation of evidence---Police opinion---Police opinion, no doubt, is not binding on the Courts, but at the same time it cannot be thrown to the winds.

M.A. Malik and Sittar Sahil for Appellant.

Inayat Ullah Khan, Addl. Prosecutor-General for the State.

Date of hearing: 24th January, 2007.

2008 M L D 480

[Lahore]

Before M. Bilal Khan, J

MUHAMMAD ISHAQUE alias MUHAMMAD ISHAQUE AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 795/B of 2006, decided on 22nd February, 2006.

Criminal Procedure Code (V of 1898)---

----Ss.498 & 345---Penal Code (XLV of 1860), S.337-A(ii)/34---Pre-­arrest bail, grant of--Counsel for accused as also counsel for the complainant submitted that a compromise had been effected between the parties---Complainant, who was in attendance, had been identified by an Advocate---Complainant was the only one who suffered injury---State counsel had submitted that since the offence with which accused was charged was compoundable and compromise had taken place, he would not oppose the grant of bail to accused---Interim pre-arrest bail granted to accused, was confirmed, in circumstances.

Muhammad Ameer Khan Niazi for Petitioner.

Sadaqat Mehmood Butt for the Complainant.

Mehmood Akhtar, A.S.-I. Police Station Mitha Tiwana, District Khushab with police file.

2008 M L D 482

[Lahore]

Before M.A. Shahid Siddiqui, J

MUHAMMAD ASLAM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 9366-B of 2005, decided on 18th January, 2006.

Criminal Procedure Code (V of 1898)---

---S.497---Penal Code (XLV of 1860), Ss.337-A(i), 337-F(v), 337-L(ii), 148 & 149---Bail, grant of---Police during the investigation of the case, came to the conclusion that accused was empty-handed at the relevant time---Offences with which accused had been charged did not fall within the prohibitory clause of S.497, Cr.P.C.---Incomplete challan had been submitted in the competent court of law---Some of accused persons being still at large, accused could not be detained for an indefinite period---Accused was ordered to be released on bail, in circumstances.

Muhammad Amir Khan Niazi for Petitioner.

Muhammad Afzal Awan with Abdul Rehman, SI with record for the State.

2008 M L D 483

[Lahore]

Before Fazal-e-Miran Chauhan, J

Syed ARIF HUSSAIN SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3218-B of 2007, decided on 18th June, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 489-B & 420---Bail, grant of---Was yet to be decided as to whether the case against accused fell under the provisions of S.489-B or section 489-C, P.P.C. and whether accused had or did not have the knowledge that the currency notes were forged---Case of the prosecution pertained only to the recovery of forged and counterfeit currency Notes, which attracted provisions of S.489-C, P.P.C. which did not fall within the prohibitory clause of S.497, Cr.P.C.---Co-accused, being already on bail, under the rule of consistency accused was also entitled to same relief---Accused was admitted to bail, in circumstances.

Muhammad Hafeez alias Feeza v. The State 1999 YLR 1301 and Ghulam Mustafa v. The State 2005 YLR 2337 rel.

Mian Muhammad Waseem for Petitioner.

Mrs. Farzana Khan, Assistant Prosecutor-General with Muhammad Iqbal, S.-I.

Javaid Iqbal for the Complainant.

2008 M L D 488

[Lahore]

Before Muhammad Farrukh Mahmud and Syed Shabbar Raza Rizvi, JJ

GHULAM SHABBIR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 624 and Murder Reference No. 254 of 1999, heard on 8th January, 2007.

(a) Penal Code (XLV of 1860)----

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Eye-witnesses being inimical towards the accused and being chance witnesses, their evidence needed deeper scrutiny---Statement of complainant was not recorded at police station and such F.I.R. was surrounded by inherent doubt of having been recorded at the spot after due deliberation---Eye-witnesses had made dishonest improvements before Trial Court in order to bring their statements in conformity with medical evidence and also on other material aspects of the case---Eye­witnesses had even contradicted each other on important points---Accused being equally inimical towards complainant party, they would not have spared the eye-witnesses in case they had been present at the scene of occurrence---Eye-witnesses during trial had attributed specific injury on the hip of the deceased to co-accused who had been acquitted and no appeal had been filed against his acquitted---Medical evidence did not support the prosecution case---Neither any weapon was recovered from the accused, nor any crime empty was secured from the scene of occurrence---Motive was also available against the rest of the accused person who having been acquitted no reliance could be placed on the motive as against the present accused---Plea of alibi taken by accused in his defence was supported by evidence on record---Accused was not a proclaimed absconder---Accused was acquitted on benefit of doubt in circumstances.

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S.154---F.I.R. not recorded at police station---Inference---F.I.R. was not recorded at the police station but in the vicinity where the police officers happened to be present, leads to an unavoidable inference that the same, in fact, had been recorded after preliminary investigation at the place of occurrence.

Muhammad Siddique v. The State PLD 1958 (W.P.) Lah. 601 ref.

Sardar Khurram Latif Khan Khosa for Appellant.

Ch. Nazir Ahmad and Abdul Qayum Anjam for the State (in Criminal Appeal No.624 and Murder Reference No.254 of 1999 respectively).

Aftab Gull for the Complainant.

Date of hearing: 8th January, 2007.

2008 M L D 496

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ABID HUSSAIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2310/B of 2007, decided on 7th May, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 324, 427, 148 & 149---Bail, refusal of---Contents of F.I.R., revealed that accused, at the time of occurrence, while armed with Rifle Pump Action, fired upon the deceased hitting his back and indiscriminate firing was also attributed to him and his co-accused---Postmortem report . showed that deceased received as many as 16 injuries with fire-arm during the incident---Contention raised by the counsel for accused touched upon the deeper merits of the case, which would be seen by the Trial Court after recording the evidence---Offence against accused fell within prohibitory clause of S.497, Cr.P.C. and accused had failed to make out a case for the grant of bail---Bail application was dismissed, in circumstances.

Zafar Iqbal Chauhan for Petitioner.

Naseemullah Khan Niazi for the Complainant.

Abdul Latif Hanjra for the State.

SAeed Ahmad A.S.-I.; with record.

2008 M L D 498

[Lahore]

Before Khawaja Muhammad Sharif, J

ZAFAR IQBAL---Petitioner

Versus

MUHAMMAD MUDASSAR and others---Respondents

Criminal Revision No.728 of 2005, decided on 9th May, 2006.

Penal Code (XLV of 1860)---

----Ss.302, 324, 353, 392, 186 & 34---Appreciation of evidence---Declaring accused as minor---Accused who claimed to be minor at the time of occurrence, filed application before the Trial Court for his trial by the court constituted under Juvenile Justice System Ordinance, 2000---Trial Court vide its order declared accused as minor and his case was separated for trial by a court constituted under Juvenile Justice System Ordinance, 2000---Said order was assailed by prosecution before High Court, and order of the Trial Court was set aside and accused was declared major---Order of High Court whereby accused was declared major, was assailed by accused before Supreme Court and Supreme Court remanded case for its decision afresh after summoning original birth certificate from Municipal Administration in relation to the entry with regard to birth accused---Record was summoned from concerned quarter in compliance to order of Supreme Court---Entry in birth register showed that accused was minor at the time of occurrence---Medical Board had not definitely determined age of accused in definite terms---Order passed by High Court was reviewed and order of the Trial Court whereby accused was declared minor was upheld and accused was declared as Juvenile under Juvenile Justice System Ordinance, 2000.

Ziaullah v. Najeebullah and others (PLD 2003 SC 656; Abdul Khaliq and another v. Maulvi Muhammad Noor PLD 2005 SC 962 and All Pakistan Newspapers Society and othersv. Federation of Pakistan and others PLD 2004 SC 962 rel.

M. Asghar Rokhri for Petitioner.

Ch. Muhammad Hanif Khatana, Addl. A.-G. Muhammad Shahbaz Butt, Sr. Clerk (Births & Deaths), Ch. Abdul Saleem, for Respondents.

Date of hearing: 9th May, 2006.

2008 M L D 501

[Lahore]

Before Muhammad Jehangir Arshad, J

MUHAMMAD RAFIQ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos. 3722-B 3870-B and 3781-B of 2006, decided on 9th January, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/148/149---Bail, grant of---Private complaint disclosed that police being in league with the accused had neither correctly recorded the F.I.R. nor made a fair and honest investigation, with the result that all the accused, despite death of complainant's father and presence of injuries on the bodies of different persons as well as availability of Medico-legal reports and post-mortem report, had been declared innocent and case was recommended to be consigned as untraced---Due to mala fide investigation complainant was free to file the private complaint, but the same did not show as to which part of the F.I.R. was incorrect---Discrepancy in the contents of the F.I.R. and the private complaint, prima facie, had made the case against the accused one of further inquiry---Accused were admitted to bail in circumstances.

PLD 1966 SC 708 ref.

M.A. Hayat Haraj for Petitioner (in Criminal Miscellaneous No.3722-B of 2006).

Muhammad Arif Alvi for Petitioner (In Criminal Miscellaneous. No. 3870-B of 2006).

Muhammad Akram for Petitioner (in Criminal Miscellaneous No. 3781-B of 2006).

Muhammad Zafar Khan Sayal for the Complainant.

Sh. Javed Rashid, Muhammad Ayub and Anwar-ul-Haq for the State.

2008 M L D 504

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUHAMMAD SULEMAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1051 and Murder Reference No. 424of 2001, heard on 29th November, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 201/34---Appreciation of evidence---Benefit of doubt---Incident was an un-witnessed occurrence and prosecution case rested on circumstantial evidence---Complainant and prosecution witnesses not only were inter se related but were also near relations of deceased---Prosecution case showed that motive behind the occurrence was that male accused and female co-accused who was wife of deceased . developed illicit intimacy---No independent evidence however, was available to prove that illicit intimacy---Deceased, who was husband of female co-accused was thirty years younger than male accused; in said circumstances, it could safely be said that motive was created after finding the dead body of deceased---Prosecution witness before whom accused had allegedly made confession, had stated that alleged confessional statement was made to him after 6/7 days of recovery of dead body---Both prosecution witnesses who claimed that accused had confessed before them, had contradicted each other on vital points---Both said witnesses did not make any attempt to apprehend and to produce her before the police---Medical evidence had only denoted that deceased lost his life due to strangulation, but it did not lead to the culprits---No independent witness or respectable of locality, like lambardar or Councillor was produced to prove that dead body was dug by accused or on his pointing---Complainant had also given contradictory statement with regard to place from where dead body was recovered---Prosecution case being replete with doubts, allowing appeal against judgment of the Trial Court, same was set aside---Accused were acquitted of all the charges and were released accordingly.

Zairullah v. The State 1997 SCMR 396; Muhammad Arshad v. The State 1992 SCMR 1187 and Ahmad Bakhsh v. The State PLD 2006 SC 267 rel.

Muhammad Amir Khan Niazi and Nadeem Siddiqui for Appellant.

Maqbool Ahmad Qureshi and A.H. Masood for the State (In, Criminal Appeal No. 1051 and Murder Reference No.424 of 2001 respectively).

Hafiz Muhammad Khan Mohal for the Complainant.

Date of hearing: 29th November, 2006.

2008 M L D 513

[Lahore]

Before Tariq Shamim, J

MUHAMMAD ZAHID AZHAR---Petitioner

Versus

SABIR ALI and another---Respondents

Criminal Miscellaneous No. 2586-BC of 2007, decided on 13th September, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10/11---Bail, cancellation of---Alleged abductee was recovered by the Police from the custody of accused who got her statements recorded under S.161, Cr.P.C. with the Police and under S.164, Cr.P.C. with Magistrate wherein she saddled the accused with her abduction and commission of zina-bil-jabar; while explaining that she had been forced to sign/thumb-mark blank papers---Nikah, Nama, was found to be forged and fabricated as not only the Nikah Kahawan, but an Advocate who was a witness of Nikah denied having signed the Nikah Nama---Record of the Union Council also revealed that Nikah Nama had not been registered---Medico-legal report of abductee also reflected that she had been subjected to zina---Conclusions arrived at by the Trial Court in the impugned order were arbitrary, whimsical and not supported by the record of the case---Impugned order reflected that the Trial Judge had not made any effort to go through the Police record---Post-arrest bail allowed to accused by the Trial Court, was cancelled.

Malik Muhammad Zarar Iqbal Awan for Petitioner.

Amir Saeed for Respondent No. 1.

Mian. Ihsan ul Haq Sajid, Deputy Prosecutor-General and Abdul Sattar, S.-I.

2008 M L D 515

[Lahore]

Before Sardar Muhammad Aslam, J

SIRAJ DIN and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1 of 2006 in Criminal Appeal No. 688 of 2006, decided on 28th September, 2006.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss. 302(b) & 324---Suspension of sentence---Accused had not caused any injury to deceased, but allegedly caused injury to prosecution witness who did not enter the witness-box and exonerated accused---Conviction in the case was recorded on ground of participation in the incident with common object and intention---Co-accused exactly with similar roles, earned acquittal---Whether accused had common intention or otherwise, would be considered at the time of hearing of appeal---Prima facie it appeared that conviction of accused was on account of absconsion of his brother who was principal accused in the case, which had been seriously noticed by the Trial Court---Sentence of accused, in circumstances was suspended.

Zafar Iqbal Chouhan for Petitioner.

A.H. Masud for the State.

2008 M L D 517

[Lahore]

Before Khawaja Muhammad Sharif, J

Sufi SHER MUHAMMAD---Petitioner

Versus

THE STATE and 4 others---Respondents

Writ Petition No. 8296 of 2006, decided on 16th October, 2006.

Police Order (22 of 2002)---

----Art. 18---Criminal Procedure Code (V of 1898), S. 551---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Transfer of investigation---Additional Inspector General Police, Investigation Branch, had not transferred the investigation in accordance with provisions of sub-Articles (5) and (6) of Article 18 of Police Order, 2002---Said official while submitting his report and parawise comments had mentioned that investigation held by S.P. (Investigation) was illegal and was without legal sanctity of law and investigation held by S.P. (Investigation) was declared to be illegal and without lawful authority---Held, challan having already been submitted in the court, no further investigation could be conducted.

Khizer Hayat and others v. Inspector-General of Police PLD 2005 Lah. 470 ref.

Zafar Iqbal Chohan for Petitioner.

Malik Noor Muhammad Awan for Respondents No.5.

2008 M L D 519

[Lahore]

Before Muhammad Farrukh Mahmud and Ijaz Ahmad Chaudhry, JJ

MUNIR AHMED---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.388-J and Murder Reference No. 626 of 2001, heard on 22nd November, 2006.

Penal Code (XLV of 1860)---

----Ss. 302(b), 337-A(i) & 337-L(ii)---Appreciation of evidence---Sentence, reduction in---Case of two versions---Complainant and accused both alleged that other party was aggressor---Hostility existed between prosecution witness and one of accused persons---Medical evidence revealed that one of accused had received four injuries on his person---Two injuries resulted into fracture---One of said injuries was declared as Jurh Ghair Jaifa Munaggilah, while other one was declared as Jurh Ghair Jaifa Hashima---One of the injuries was caused by sharp-edged weapon and accused remained admitted in Hospital---Such serious injuries could not be the result of slap or Mist blows---Father of two accused also received seven injuries on his, person---Record did not show that such injuries could be caused by friendly hand----Two prosecution witnesses received twelve injuries which were caused by blunt weapon---Post­mortem examination of deceased was conducted on next day of occurrence for unknown reasons---Accused who allegedly gave Dang blows to deceased after he fell down, were acquitted of the charge of murder---No appeal against said acquittal was ever filed---Delay in post-mortem examination and delay in lodging the report had led to inference that F.I.R. was recorded after due deliberations---One of accused had no direct enmity with deceased---Police Inspector, who had registered case, his dishonesty was floating on the surface of record---Prosecution witnesses had given a very exaggerated version of occurrence and they remained unable to explain injuries on the person of father of two accused---Investigation conducted by said Inspector was dishonest and partial---Accused though had not produced any independent witness to support his plea of alibi but his father sustained injuries during occurrence---Conviction of accused, in circumstances, was altered from offence under S.302(b), P.P.C. to offence under S.302(c), P.P.C.---Accused being behind the bars for almost nine years his sentence was reduced to the period already served out by him---Co-­accused were acquitted of the charge of murder, but were convicted and sentenced for causing simple injuries to prosecution witnesses accordingly.

Mairaj Begum v. Ejaz Anwar and others PLD 1982 SC 294 rel.

Malik Saeed Hassan for Appellant.

Mrs. Tahseen Irfan and Saleem Shad for the State (in Criminal Appeal No. 388-J/01 and Murder Reference No.626/01 respectively).

Tariq Nadeem for the Complainant.

Date of hearing: 22nd November, 2006.

2008 M L D 528

[Lahore]

Before Syed Shabbar Raza Rizvi, J

GHULAM MUHAMMAD---Appellant

Versus

ADDITIONAL INSPECTOR GENERAL OF POLICE, INVESTIGATION BRANCH, PUNJAB, LAHORE and 6 others---Respondents

Writ Petition No. 10916 of 2006, decided on 11th October, 2007.

Police Order (22 of 2002)---

----Art.18(6)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer of investigation---Counsel for the petitioners had sought transfer of investigation, recommendation of which was refused by the Board as contemplated under Article 18(6) of Police Order, 2002---To meet such situation where police were not agreeable with the point of view of the complainant or police were non-cooperative, filing a complaint was an adequate and appropriate remedy---During the proceedings of a private complaint, the court had power to order for investigation, recovery etc.---Petitioner, in circumstances could opt to file a private complaint which would be decided strictly in accordance with law---Constitutional petition was disposed of accordingly.

Muhammad Ameer Khan Niazi for Appellant.

2008 M L D 529

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD RAMZAN alias RAMZOO, MOTTI, HEERA, JANI, PAPU and MUSTAFA and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No.3573/B of 2007, decided on 1st June, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11--Bail, grant of---Further inquiry---Accused, who were arrested, remained on physical remand for 14 days, but during that period alleged abductee could not be recovered at their instance---Except for oral statement of the complainant, no incriminating evidence was available against accused to the effect that they had abducted alleged abductee or had been seen with her by anyone---Accused and co-accused were parents of other accused whose participation for the abduction of alleged victims with their sons appeared to be an unbelievable story---Accused who were in jail, their further detention in jail for indefinite period, would serve no useful purpose to the prosecution---Accused had succeeded in making out a case of further inquiry and culpability of accused in the occurrence would be seen by the Trial Court after recording the evidence---Accused were admitted to bail, in circumstances.

Muhammad Javed Iqbal Thaheem for Petitioners.

Saeed Ashraf Warraich, Addl. Prosecutor-General for the State.

Muhammad Rashid Baig, S.-I. with record.

2008 M L D 531

[Lahore]

Before Tariq Shamim, J

GHULAM MUBASHAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1949-B of 2006, decided on 6th July, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/324/380/148/149---Bail, grant of---No allegation against accused of having caused any inquiry on the person of deceased, which resulted in his death---Injury to the deceased had been ascribed to the co-accused who was behind the bars and from whose possession gun was also recovered---Whether accused was vicariously liable or not. for the act of his co-accused could be determined at the trial and not at the bail stage---Accused had been nominated in the supplementary statement made by the complainant after a lapse of twenty-one days from the date of occurrence---No specific allegation of any overt act having been. committed by accused had been made in the F.I.R. and the evidence available on record was not sufficient to connect accused with the commission of offences alleged against him---Co-accused had already been granted bail and role assigned to both accused being similar, accused was also entitled to the concession of bail under the law of consistency---Accused was admitted to bail, in circumstances.

Sardar Muhammad Zafarullah Dareshak for Petitioner.

Muhammad Sabir Qureshi for State with Ghulam Akbar, S.-I.

2008 M L D 533

[Lahore]

Before Khawaja Muhammad Sharif, J

ATIF ABBAS---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.6602-B of 2006, decided on 19th September, 2006.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---Further inquiry---F.I.R. revealed that accused along with his co-accused fired at the deceased and injured other, but later on it had come on record that he was not present at the spot---Accused was on duty at the relevant time and the senior and colleagues of accused had sworn their affidavits to the police in that respect and the police came to the conclusion that accused was present in his office on that day---Accused was declared innocent and was placed in column No. 2 of the challan, which column was meant for those accused persons who were not challaned or who were absconding---Case of accused being of further enquiry falling under subsection (2) of S.497 Cr.P.C. he was admitted to bail, in circumstances.

PLD 1989 SC 585 and PLD 1995 SC 34 rel.

Zafar Iqbal Chouhan for Petitioner.

S.D. Qureshi for the State along with Ghulam Shabbir Khan, S.-I.

2008 M L D 543

[Lahore]

Before Tariq Shamim, J

SHAFIQ MASIH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1770-B of 2006, decided on 6th July, 2006.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Bail, refusal of---F.I.R. was promptly lodged in which accused was nominated and specific role of being armed with pistol and firing at deceased which hit his co-accused had been ascribed to him---Accused had been found guilty in the investigation and the challan in the case had been submitted---After framing of charge, case was fixed for recording of evidence of witnesses---Recovery of the weapon of offence had been effected from accused, which was further corroborated by the empties recovered from the spot which had matched with the pistol recovered from him---Co-­accused was granted bail on account of the fact that he was empty handed at the time of occurrence and had been paralyzed .as a result of the fire of accused---Law of consistency as urged by counsel for accused, would not apply, in circumstances---Motive had also been attributed to accused---Tentative assessment of the evidence on the record had revealed that prima facie enough material was available on record to connect accused with the Commission of murder of the father of the complainant---Bail petition was dismissed, in circumstances.

Tariq Muhammad Iqbal Chaudhary for Petitioner.

Malik Fazal Karim for the Complainant.

Sheikh Arshad Ali for the State.

2008 M L D 547

[Lahore]

Before Syed Shabbar Raza Rizvi, J

KHURRAM RAZA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 59-B of 2008, decided on 25th January, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S. 302/34---Bail, grant of---Common intention, principles of---Applicability---Plea raised by accused was that only role attributed to him was putting Japha (clasp) around deceased---Validity---Apparently criminal act of murder was caused by all accused by sharing common intention which could be gathered L„ conduct of all accused persons---Accused made deceased helpless by taking him into clasp and facilitating his co-accused to inflict two fatal knife blows to deceased---All accused nominated in F.I.R. played their roles with criminal intention---Death was caused by several acts of accused persons nominated in F.I.R. by cooperating with each other and causing culpable homicide amounting to murder---Provisions of Ss.34, 35 and 37, P.P.C. were fully attracted with 5.302, P.P.C.---Prima facie there were grounds to believe that accused had committed offence mentioned in F.I.R.---Bail was refused in circumstances.

1994 SCMR 393 & 2161; 1981 SCMR 893 & 50; 1981 PCr.LJ 1102; 1978 SCMR 357; 1979 SCMR 114 and PLD 2002 Kar. 99 ref.

Malik Muhammad Akram Khan Awan for Petitioner.

Asif Mehmood Cheema, Deputy Prosecutor General, Punjab.

Ilyas S.-I. with record.

2008 M L D 555

[Lahore]

Before Tariq Shamim, J

SHAHBAZ and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 9376-B of 2007, decided on 29th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 337-A(iii), 337-F(iii), 337-L(ii), 354 & 34,---Bail, grant of---Injured accused---Affidavits in defence---Occurrence had taken place in shop of one of the accused who sustained number of injuries including one on temporal region and another on left ear with cartilage exposed---Plea raised by accused persons was that they were aggressed upon by complainant party---Validity---Plea of accused was not without basis as in the course of occurrence one of the accused had sustained injuries which could not be termed as self-inflicted---Eleven affidavits were on record sworn in by respectables of the area in which accused persons were shown as victims of aggression of complainant party---Such affidavits were neither taken into consideration by police during investigation nor deponents were associated with investigation proceedings---Pre-arrest bail was confirmed in circumstances.

Ameer Abdullah Khan Niazi for Petitioners.

Syed Ali Raza Gillani for the Complainant.

Ch. Amjad Hussain, Deputy Prosecutor General for the State along with Liaqat Ali, A.S.-I. with record.

2008 M L D 557

[Lahore]

Before Abdul Shakoor Paracha and Hasnat Ahmad Khan, JJ

MUHAMMAD ASGHAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 231-J and Murder Reference No.637 of 2002, heard on 17th January, 2008.

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Contradiction in evidence-Principles--Certain contradictions in evidence provided by two prosecution witnesses though were on record but the same was not rejected as the witnesses had no enmity to falsely implicate accused in a case punishable with maximum penalty of death.

(b) Penal Code (XLV 1860)---

---S.302(b)---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Two versions---Sudden affair---Time and place of occurrence and presence of parties were not disputed---Deceased was father in law of accused and his death was caused due to an injury caused by Kassi (weapon of offence)---Prosecution alleged that accused inflicted Kassi blow to deceased causing his death, whereas defence version was that during grappling, deceased fell on Kassi lying on ground and received fatal injury---Validity---Occurrence was not a premeditated one, rather it was a sudden affair---Accused did not come to place of occurrence after arming himself with Kassi; it was under sudden impulse due to exchange of harsh words, the accused picked up Kassi from the spot and caused injuries with the same to deceased---Something untoward happened between parties which became cause of death of deceased at the hands of accused---Eye-witnesses had not seen first part of occurrence, therefore, they were not in a position to state as to what happened between parties immediately before the occurrence---Occurrence had taken place out of sheer frustration which was apparently caused by deceased by not sending his daughter i.e. wife of accused, along with him---Such facts were sufficient to show that there were mitigating circumstances justifying alteration of death sentence to one of life imprisonment---High Court maintained conviction passed by Trial Court but altered death sentence into imprisonment for life---Appeal was allowed accordingly.

Qambar Ali v. The State PLJ 1974 Crl.C. (Lah.) 474; Adil v. The State 1971 PCr.LJ 292; Rehmat Ali v. The State 1983 SCMR 922; Ansar Ahmad Khan Barki v. The State and another 1993. SCMR 1660; Rasool Bux and another v. The State 1980 SCMR 225; Mubarak Ali v. The State 1980 SCMR 176; Chand Khan v. Akbar and others 1986 SCMR 1878; Iftikhar Ahmad alias Gulla and another v. The State and another PLD 1990 SC 820; Abbas Hussain an another v. The State and another 1992 SCMR 320; Noor Ahmad and another v. The State 1986 PCr.LJ 703 and Muhammad Sharif v. State 1990 ALD 749 rel.

Rai Wali Muhammad Khan Kharal for Appellant.

Malik Abdus Salam, DPG for the State.

Date of hearing: 17th January, 2008.

2008 M L D 566

[Lahore]

Before Tariq Shamim, J

EJAZ AHMED alias JAJJI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 288-B of 2008, decided on 29th January, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 324, 337-F(iii), 337-F(vi), 341, 148 & 149--- Bail, refusal of---Prima facie case---Scope---Accused was named in F.I.R. and specific role was ascribed to him of causing injury on the outer side of right thigh of injured prosecution witness---To the extent of injury caused by accused, medico-legal report was in consonance with the allegations levelled in F.I.R.---Injured and eye-witnesses of the occurrence had fully implicated accused in crime and furnished account which was in line with the contents of F.I.R.---During investigation, weapon of offence was also recovered from accused which further connected him with prosecution case---Prima facie offence under S.324, P.P.C. was attracted in the case and the offence squarely fell within the ambit of prohibitory clause of S.497, Cr.P.C.---Accused was found to be fully involved in crime during investigation and challan had been submitted in Trial Court, where after framing of charge, trial was in progress---Bail was declined in circumstances.

Raja M. Faisal Ghani for Petitioner.

Ch. Amjad Hussain, Deputy Prosecutor General for the State along with Asghar Ali, S.-I.

2008 M L D 568

[Lahore]

Before Syed Shabbar Raza Rizvi, J

IMRAN KHAN---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary, Home Department, Civil Secretariat, Lahore and 3 others----Respondents

Writ Petition No. 5354 of 2007, heard on 29th January, 2008.

West Pakistan Maintenance of Public Order Ordinance (XXXI of 1961)---

----S. 16---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainbility---Illegal confinement---Scope---Under preven­tive detention order, petitioner was restrained from leaving revenue limits of the city where he was residing---Order passed by authorities was only for three days and when petition was placed before High Court the period had already lapsed---Effect---When a person was directed to remain in a particular place or area and not allowed to move out from that area without permission of authority, it amounted to illegal confinement---Order in question having already run out, therefore, petition was not to be entertained---Petitioner was dismissed in circumstances.

PLD 1963 Lah. 109; PLD 1973 Karachi 78; PLD 1983 Lahore 244; PLD 2007 Lah. 128; 2004 PLC (C.S.) 604; PLD 1997 SC 334; PLD 2003 SC 442; Ghulam Jillani v. Government of West Pakistan PLD 1967 SC 373; Abdul Baqi Baluch v. Government of West Pakistan PLD 1968 SC 313; Govt. of West Pakistan v. Begum Shorish Kashmiri PLD 1969 SC 14; Govt. of West Pakistan v. Haidar Bux Jatoi PLD 1969 SC 210 and Liversidge v. Sir John Anderson LR 1942 AC 206 rel.

Ahmad Awais for Petitioner.

Mian Ehsan ul Haq Sajid, Addl. A.-G for the Government of Punjab.

Date of hearing: 29th January, 2008.

2008 M L D 573

[Lahore]

Before Tariq Shamim, J

Malik MUHAMMAD SADIQUE---Petitioner

Versus

Mian RIAZ and 2 others---Respondents

Writ Petitions Nos. 11721 and 10691 of 2007, decided on 28th January, 2008.

Criminal Procedure Code (V of 1898)---

----Ss.22-A & 22-B---Punjab Prevention of Gambling Ordinance (VII of 1978), S.6---Penal Code (XLV of 1860), S.216---West Pakistan Arms Ordinance (XX of 1965), S.13--Constitution of Pakistan (1973), Art.199---Constitutional petition---Petition for registration of criminal case against respondents/Police Officials---Quashing of F.I.R.---Petitioners filed petition under Ss.22-A & 22-B, Cr.P.C. before Justice of Peace for registration of criminal case against respondents/Police Officials who allegedly deprived petitioners of cash and other valuable properties---Case of respondents was that when they were in search of proclaimed offenders in the area, petitioners were found in the house of one of the petitioners busy in gambling---F.I.R. was registered against petitioners and they were found fully implicated in the crime---During the course of investigation of F.I.R. against petitioners, no one had levelled any allegation as mentioned by the petitioners in their petition for registration of criminal case against respondents---Possibility of the petitioners making an endeavour to have a criminal case registered against respondents Police Officers as a counterblast to the registration of said F.I.R., could not be ruled out---Prima facie allegations against respondents did not appear to be credible---No order could be passed for registration of a criminal case against respondents---Even otherwise matter involved a factual controversy which could not be resolved by the High Court in its constitutional jurisdiction---Petitioners had an equally efficacious remedy available to them by way of filing a private complaint against the respondents---Challan in the case against petitioners had been submitted---Petitioners had an alternate remedy available to them under the law by way of approaching the Trial Court---Quashing of F.I.R. as prayed for by the petitioners at such stage would amount to stifling the prosecution---Petition was dismissed in circumstances.

Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 279 ref.

Mian Muhammad Saeed for Petitioner.

2008 M L D 577

[Lahore]

Before M. Bilal Khan and Tariq Shamim, JJ

PUNJAB PRIVATIZATION BOARD, GOVERNMENT OF PUNJAB through Secretary and 3 others---Appellants

Versus

MUHAMMAD YOUNAS MALIK and another---Respondents

I.C. A. No.131 of 2004, heard on 1st November, 2007.

(a) Contract Act (IX of 1872)---

----S.3---Proposal---Acceptance or rejection---Principles---Communi­cation of proposals and acceptance of proposals are to be deemed by an act or omission of party proposing or accepting by which he intends to communicate such proposal or acceptance---Mere acceptance without communicating the same cannot be binding.

Dr. Azeem Shad v. Municipal Committee, Multan PLD 1968 Lah. 1419 and Powell v. Lee [(1908)] 99 L T 284 rel.

(b) Law Reforms Ordinance (XII of 1972)---

----S.3---Constitution of Pakistan (1973), Art.199---Intra-court appeal---Public contract---Judicial review---Powers of High Court---Scope---Property in question was put to auction by Privatization Board and respondent was the highest bidder but the Board being not satisfied with the price offered re-auctioned of the property---Validity---Privatization Board, in its meeting, had decided to re-auction the property in question which meant that its earlier decision of accepting bid of respondent had been rescinded---Decision of re-auction was taken in the larger interest of Government and could not be termed as mala fide or unreasonable---Confirmation of bid depended on discretion of Government as was spelt out from advertisements---No objection could be raised if bid was found to be below the price which Government expected the property would fetch High Court, under its constitutional jurisdiction, could only review a public contract only on the touchstone of reasonableness, relevance, fairplay, natural justice, equality and non-discrimination---Respondent did not challenge re-auction before the High Court on any of the such grounds---No writ could have been issued on the touchstone of reasonableness and fairplay as issuance of the same would tend to confer, undue advantage on the respondent---High Court, in intra-court appeal, set aside the judgment passed by single Judge.

Prof Muhammad Usman and others v. Punjab University Academic Staff Association and another 1991 SCMR 320; The Central Bank, Heotmal Ltd. v. Vyankatesh Bapuji AIR (36) 1949 Nagpur 286; Haridwar Singh v. Begum Sumbrui and others AIR 1972 SC 1242; Javaid Iqbal Abbasi & Company v. Province of Punjab and 6 others 1996 SCMR 1433; Messrs Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasanagar Municipal Corporation and others AIR 2000 SC 2272;,.Mst. Surraya Begum and others v. Mst. Suban Begum and others 1992 SCMR 652; Pakistan v. Messrs H. Pir Muhammad Shamsuddin PLD 1962 (W.P.) Kar. 810; Chairman and others v. Mst. Qaisra Elahi and others 2005 SCMR 678; Messrs Ittehad Cargo Service and 2 others v. Messrs Syed Tasneem Hussain Naqvi and others PLD 2001 SC 116; Ch. Muhammad Yunus v. The Islamic Republic of Pakistan through the Secretary, Ministry of Communication, Government of Pakistan, Islamabad and 3 others PLD 1972 Lah. 847; Pakistan v. Golam Moinuddin Ahmed PLD 1966 Dacca 570; Federal Government of Pakistan through Secretary, Ministry of Interior, Islamabad v. Government of Punjab through Chief Secretary, Lahore and another PLD 1991 SC 505 and City Schools (Pvt.) Ltd., Lahore Cantt. v. Privatization Commission, Government of Pakistan and others 2002 SCMR 1150 ref.

Khawaja Haris Ahmad for Appellants.

Mian Nisar Ahmad and Ch. M. Ashraf Wahlah for Respondents.

Ch. Muhammad Sadiq Addl. A.-G.

Date of hearing: 1st November, 2007.

2008 M L D 592

[Lahore]

Before Sh. Abdul Rashid and M. Bilal Khan, JJ

MUHAMMAD SARWAR and 2 others---Appellants

Versus

THE STATE----Respondent

Criminal Appeal Nos. 389 and Murder Reference No. 398 of 1999, heard on 14th January, 2004.

(a) Penal Code (XLV of 1860)---

----Ss. 302(b)/34, 379 & 411---Appreciation of evidence---F.I.R. was promptly lodged---Eye-witnesses having no previous enmity or malice against the accused had described in unequivocal terms the role of each accused during the trial, giving all the necessary details about the accused and the incident---Presence of eye-witnesses at the scene of occurrence was natural, who had fully and consistently supported the prosecution case---Accused being known to the prosecution witnesses, no question of mistaken identity could arise---Relationship of eye-witnesses with the deceased alone was no ground to discard their testimony---Ocular evidence was corroborated by medical evidence and incriminating recoveries---Motive stood admitted by the defence itself---Any infirmity in the evidence of recovery in the presence of overwhelming and confidence inspiring ocular evidence would not be fatal for the prosecution case---Convictions and sentences of accused were maintained in circumstances, with the exception of conviction and sentence under section 411, P.P.C. which were set aside, because theft and retention of stolen goods from one and the same offence could not be punished separately.

(b) Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence---Non-recovery of weapon of offence---Effect---Non-recovery of weapon of offence or defective unreliable recovery is of no consequence where ocular evidence is found to be overwhelming and confidence inspiring corroborated by medical evidence---In the presence of said factors infirmity, if any, in the evidence of recovery of fire arm, would not be fatal for the prosecution case.

(c) Penal Code (XLV of 1860)---

----Ss. 379 & 411---Theft and retention of stolen goods, not to be punished separately---Theft and retention of stolen goods are one and the same offence cannot be punished separately---After passing conviction and sentence under S.379, P.P.C., a separate conviction and sentence under S.411, P.P.C. cannot be passed.

?

Iqbal Mehmood Awan for Appellants.

Rai Bashir Ahmed for the Complainant and Ch. Ashfaq Ahmed for the State.

Date of hearing: 14th January, 2004.

2008 M L D 602

[Lahore]

Before M. Javed Buttar and Muhammad Muzammal Khan, JJ

MUHAMMAD TANVEER---Appellant.

Versus

THE STATE----Respondent

Criminal Appeal No. 797 of 2001, heard on 16th December, 2003.

Control of Narcotic Substances Act (XXV of 1997)---

----S.9(c)---Appreciation of evidence---Sentence, reduction in---Recovery of 1050 grams of heroin from the accused had been supported by the prosecution witnesses who had no enmity or malice against him---Police was not shown to have any reason for making a fake recovery from accused just to show its efficiency by planting a huge quantity of heroin upon him worth Lacs of rupees---Minor discrepancies in evidence were bound to occur due to lapse of four years' time and the same could neither vitiate the trial nor make the recovery doubtful---Chemical Examiner had certified the recovered substance to be heroin---Police officials having no interest in false implication of accused were as reliable as private witnesses---Conviction of accused was consequently maintained, but in view of the small quantity of heroin recovered from him his sentence of imprisonment for life was reduced to fourteen years' R.I.---Appeal was disposed of accordingly.

Maulvi Ghulam Rasool v. Administrator Auqaf, Sindh and another 1976 SCMR 73; Sikandar and 2 others v. The State PLD 1978 SCMR 185; Gul Nawaz v. The State 1998 PCr.LJ 1730; Feroze Shah v. The State 2002 PCr.LJ 1470 and Mirza Shah v. The State 1992 SCMR 1475 ref.

Hamid Mehmood Yousaf Zai for Appellant.

Fazal-e-Miran Chohan, Addl. A.-G. for Respondent.

Date of hearing: 16th December, 2003.

2008 M L D 611

[Lahore]

Before Tassaduq Hussain Jillani, J

Syed MUHAMMAD IDREES BOKHARI---Petitioner

Versus

ARIF MASOOD and other---Respondents

Criminal Miscellaneous No. 2711/B of 2004, decided on 16th July, 2004.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), S.489-F---Cancellation of bail---Petition for---Trial Court had granted pre-arrest bail to accused on the ground that High Court had declared S.489-F P.P.C. to be bailable offence---On the court query both counsel of parties agreed that in all propriety it would be in the fitness of things, if the matter was remanded to the same Judge who had. granted bail to decide the matter afresh---Since the offence was not bailable, but in the meanwhile investigation was completed and the challan had been submitted; and the Trial Court, while granting bail, did not touch the merits of the respective pleas of the parties, stand taken by both counsel was reasonable---Order granting bail to the accused was set aside, bail application would be deemed to be pending which would be decided afresh within specified period.

Mian Muhammad Hanif Tahir for Petitioner.

Salman Mansoor for Respondent No. 1.

Masood S.-I.

2008 M L D 617

[Lahore]

Before Mian Muhammad Najam uz Zaman, J

Mian MUHAMMAD SHABBIR---Petitioner

Versus

S.H.O. and others----Respondents

Writ Petition No. 4772/Q of 2007, decided on 14th January, 2007.

Penal Code (XLV of 1860)---

----Ss.420, 471 & 468---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of case---F.I.R. in question was under investigation and it was yet to be determined by the competent Authority qua the status of document in dispute---Even otherwise, the disputed question of fact could not be decided by the High Court in constitutional petition---Constitutional petition was dismissed, in circumstances.

C.M. Sarwar for Petitioner.

Ch. Naseer Ahmed Bhutta, and Mr. Qamar Aziz Bhatti for Complainant.

M. Akbar Tarar, Addl. A.-G.

Naeem Tariq Sanghera DPG.

Muhammad Akhtar, S.-I. Rana Islam A.S.-I.

2008 M L D 624

[Lahore]

Before Khawaja Muhammad Sharif, J

YASAR IMRAN and 2 others---Appellants

Versus

THE STATE----Respondent

Criminal Appeal No.1007 of 2002, heard on 15th April, 2004.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Five accused were named in F.I.R. while only one injury was caused on the person of deceased which was specifically attributed to proclaimed offender---Another co-accused was also at large---Accused though were alleged to be armed with firearms, but no injury or overt act with those firearms was attributed to them---Allegations against accused persons were that they along with accused who was at large, caught hold of the deceased from his legs and arms and threw him down on the ground, but there was no abrasion or contusion on the dead body of deceased according to the post mortem examination report---No recovery of any firearm was effected from accused persons who were also declared innocent by the Police, which declaration was never challenged by the complainant---Even State Counsel, had not supported the prosecution version---Case against accused being of doubtful nature, his conviction and sentence was set aside.

Khurram Latif Khosa for Appellants.

Ashfaq Ahmad Chaudhary for Respondent.

Date of hearing: 15th April, 2004.

2008 M L D 629

[Lahore]

Before Tassaduq Hussain Jillani, J

MUHAMMAD AMIN---Appellant

Versus

THE STATE----Respondent

Criminal Appeal No. 181 of 2001, heard on 9th July, 2007.

Penal Code (XLV of 1860)---

----Ss.395, 324, 337-A(ii), 337-F(ii), 337-L(ii), 337-X(i) & 337-Y(ii)---Anti-Terrorism Act (XXVII of 1997), Ss.7(1) (b) & 7(ii)---Appreciation of evidence---Sentence, reduction in---Counsel for accused had submitted that accused was a previous non-convict; that he was a young man of 28/30 years; that he had already suffered imprisonment for a period of more than 4/5 years; that he would not challenge the conviction of accused if his sentence was reduced---State Counsel had submitted that as accused had not challenged his conviction, but had prayed for the reduction of sentence, he would not oppose that prayer---Accused was a first offender and a young man---Since counsel for the State had no objection if with a view to give accused a chance to reform himself, his sentence of imprisonment for life under S.395 P.P.C. and under Ss.7(1)(b), 7(ii) of Anti-Terrorism Act, 1997, was reduced to seven years' R.I., but the fine and other sentences would remain intact---Order was passed accordingly.

Naveed Inayat Malik for Appellant.

Azkaar Abbas for Respondent.

Date of hearing: 9th July, 2004.

2008 M L D 634

[Lahore]

Before Asif Saeed Khan Khosa, J

SADAR DIN---Appellant

Versus

THE STATE----Respondent

Criminal Appeals Nos. 1959 of 2002 and 379-J of 2003, heard on 22nd June, 2004.

Penal Code (XLV of 1860)---

----Ss. 393/34, 337-F(iii)/34 & 353/34---Anti-Terrorism Act (XXVII of 1997), S.7(b)---Application of evidence---Conviction and sentences of accused were not challenged and the only prayer was that all the sentences of imprisonment might be ordered to run concurrently---Occurrence had taken place about three years back and eversince their arrest in the case the accused were in custody and they had never been admitted to bail at any stage---Direction of the Trial Court for the sentences of imprisonment awarded under S.353, P.P.C. to run consecutively with other sentences of accused was not based on any particular reason---Accused had committed all the offences in the case in the lame transaction and it was just and fair if all the sentences of imprisonment passed against them for all the offences were ordered to run concurrently to each other---Ordered accordingly.

Ch. Muhammad Latif Khan Saraw for Appellant (in Criminal Appeal No. 1959 of 2002).

Miss Nighat Saeed Mughal for Appellant (in Criminal Appeal No. 379-J of 2003).

Muhammad Ali Dogar for the State.

Date of hearing: 22nd June, 2004.

2008 M L D 640

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Naeemullah Khan Sherwani, JJ

SHAHID alias SHAHIDO---Appellant

Versus

THE STATE----Respondent

Criminal Appeal No. 992 of 2003 Murder Reference No. 19 of 2004, heard on 27th May, 2004.

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S.345---Acquittal on basis of compromise---Legal heirs of the deceased had compromised with the accused and had forgiven him in the name of Almighty Allah by waiving their right of Qisas with their free will without any duress or coercion and they had no objection to his acquittal from the charge of murder of the deceased---Mother of the minor children of the deceased had also forgiven the accused on their behalf and had received Diyat amount as per their share in the shape of Defence Saving Certificates---Compromise was found to have been effected between the parties without any external pressure, with their free-will and consent and the same was accepted in circumstances---Accused was acquitted accordingly.

Sajid Ali Awan for Appellant.

Masud Sadiq for Respondent.

Date of hearing: 27th May, 2004.

2008 M L D 643

[Lahore]

Before Khawaja Muhammad Sharif, J

SHAHSHER alias SHAMOO---Appellant

Versus

THE STATE----Respondent

Criminal Appeal No. 752 of 2003, heard on 20th May, 2004.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Case was of a single nominated accused---No previous enmity existed between the parties---Despite their close relationship with the deceased, eye-witnesses had no animus against accused for his false implication in the case---Gun had been recovered at the instance of accused, which was found in working condition by the Fire-arm Expert---Single shot having been fired from the gun, no question of falling any crime empty at the spot could arise---Seat and nature of injury had been mentioned in the F.I.R.---Medical evidence had corroborated the ocular testimony---Conviction and sentence of accused were upheld in circumstances.

Muhammad Ahsan Bhoon for Appellant.

Ch. Nazir Ahmad for the State.

Date of hearing: 20th May; 2004.

2008 M L D 653

[Lahore]

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussain, JJ

SHAUKAT ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1024 and Murder Reference No.445 of 1999, heard on 10th February, 2004.

(a) Penal Code (XLV of 1860)---

----S. 302(b)-Appreciation of evidence---Benefit of doubt---Prosecution had failed to establish conclusively the place and time of occurrence---F.I.R. was not lodged at the police station and the same could be suspected to have been registered at the spot after due deliberations and preliminary investigation---Eye-witnesses were not only closely related to the deceased but admittedly were also chance witnesses---Presence of eye-witnesses near the deceased at the time of occurrence being highly doubtful, their statements could not be whole-heartedly relied upon without independent corroboration, which was not available---Motive set up by the prosecution was not proved---Recovery of pistol from the possession of accused was legally inconsequential as no crime empty had been recovered from the spot to connect the same with the offence---Medical evidence had caused serious dents in the prosecution case---Conduct of complainant party in adducing evidence regarding hatching of conspiracy had hinted at its being capable of false implication of innocent persons on a capital charge---Daylight occurrence and the case being of a single nominated accused would not support the prosecution case in view of the aforesaid facts---Accused was extended benefit of doubt and acquitted in circumstances.

Sher Muhammad v. The State 1999 YLR 1916 rel.

(b) Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Benefit of doubt---Principles---Benefit of doubt when available must go to the accused irrespective of the time of occurrence or the number of victims---False implication of innocent person or planting of false, witnesses against actual murderers is not a malady referable exclusively to night time occurrences or single murders---Whenever genuine and serious doubts arise qua the prosecution evidence the benefit of such doubt must go the accused persons irrespective of the time of occurrence or the number of victims---Rising or setting of the sun or plurality of the victims has hardly any relevance to the standard of proof required in a criminal case.

Sher Muhammad v. The State 1999 YLR 1916 ref.

Zafar Ullah Cheema for the Appellant.

Abdul Rehman Chaudhry for the Complainant.

Salman Safdar for the State.

Date of hearing: 10th February, 2004.

2008 M L D 663

[Lahore]

Before Asif Saeed Khan Khosa, J

SAMI ULLAH KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 253 and Criminal Revision No.128 of 1997, heard on 6th February, 2004.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Presence of complainant and other eye-witnesses with the deceased at the time of occurrence was highly doubtful---Motive for the occurrence having not been proved by the prosecution, could not corroborate the ocular testimony---No crime empty having been secured from the place of incident, pistol recovered from the possession of accused could not be connected with the commission of the offence---Ocular account was not fully supported by medical evidence---Deceased appeared to have received injuries in an un-witnessed occurrence---Complainant and other eye-witnesses due to their close relationship and connection with the complainant party, could well have been procured and planted subsequently so as to manufacture and fabricate a case against the accused---Accused was acquitted on benefit of doubt in circumstances.

M. Asghar Khan Rokhari for Appellant (in Criminal Appeal No. 253 of 1997).

Malik Munsif Awan for Petitioner (in Criminal Revision No.128 of 1997).

Miss Nousheen Taskeen for the State.

Malik Munsif Awan for the Complainant.

Date of hearing: 6th February, 2004.

2008 M L D 676

[Lahore]

Before Sh. Abdul Rashid and M. Bilal Khan, JJ

Mst. ASIFA BIBI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1363 of 2003, heard on 1st July, 2004.

Control of Narcotic Substances Act (XXV of 1997)---

----S.9(b)---Appreciation of evidence---Sentence, reduction in---Heroin allegedly recovered from accused falling short of 1000 gms, case against accused fell within the preview of S.9(b) of Control of Narcotic Substances Act, 1997---Accused, who was a woman, was not a previous convict and there was no previous history of her involvement in a drug case---Conviction and sentence against accused had been rightly recorded as prosecution, had comprehensively proved the charge against accused---No enmity existed between accused and complainant or other prosecution witnesses-appearing in the case---Counsel for accused, in that scenario, did not seriously challenge conviction of accused and prayed for a lesser sentence---State counsel had no objection regarding the quantum of sentence---Conviction of accused under S.9(b) of Control of Narcotic Substances Act, 1997 was reduced to 3 years' R.I. with benefit of S.382-B, Cr.P.C. and amount of fine was also reduced accordingly.

Rai Muhammad Zafar Bhatti for Appellant.

A.H. Masud for the State. .

Date of hearing: 1st July, 2004.

2008 M L D 681

[Lahore]

Before M. Bilal Khan, J

ALAM SHER alias BADDU---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 2146 and Criminal Revision No.1220 of 2003, heard on 5th July, 2004.

Penal Code (XLV of 1860)---

----S.302(b)--Criminal Procedure Code (V of 1898), S.345--Appreciation of evidence---Legal heirs of deceased having pardoned accused in the name of Allah, no useful purpose would be served in acting upon sentence recorded by the Trial Court against accused---Acquittal of accused would promote harmony, peace and tranquility between the parties and chances of future disturbance between them would diminish---Compromise arrived at between accused and legal heirs of deceased was accepted and accused was acquitted and released.

S.M. Nazim for Appellant.

Ishtiaq Ahmad Minhas for the State.

Date of hearing: 5th July, 2004.

2008 M L D 683

[Lahore]

Before Khawaja Muhammad Sharif, J

SHAHID OMAR alias SAEED KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1618 of 2002, heard on 13th July, 2004.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---F.I.R. had been promptly lodged---No enmity existed between the parties and complainant had no reason to falsely implicate the accused in the case---Stating of wrong date of occurrence by the eye-witness was due to recording of his statement three years after the occurrence---Ocular testimony inspired confidence which was corroborated by medical evidence---Parties being residents of the same village knew each other and there was no possibility of, mistaken identity---Occurrence had taken place in the "Dhara" adjacent to the boundary wall of house of the complainant---Conviction and sentence of accused were maintained in circumstances.

Rai Bashir Ahmad for Appellant.

Kazim Iqbal Bhango for the State assisted by Mian Irfan Akram for the Complainant.

Date of hearing: 13th July, 2004.

2008 M L D 686

[Lahore]

Before Ijaz Ahmad Chaudhry and M.A. Shahid Siddiqui, JJ

HAQ NAWAZ alias HAKU---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 64 of 2002 and Murder Reference No.133 of 2002, heard on 25th January, 2007.

(a) Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Sentence, reduction in--F.I.R. having not been recorded with such promptitude as claimed by the prosecution, intervening time might have been consumed in concocting the prosecution story after deliberation and preliminary investigation---Such F.I.R. could not be used as a corroborative piece of evidence to the ocular account---Both the eye-witnesses were not natural witnesses, but at the most they could be chance witnesses as except for the oral statement of said witnesses, no connecting material was available to prove that the eye-witnesses were .physically present at the spot---Said witnesses had made dishonest improvements in their statements at the trial and said improvements appeared to have been, made in order to bring the case in line with the medical evidence---Both the eye-witnesses also failed to explain one of the injuries on the person of the deceased, even no blood-stained earth had been taken into possession from the place of occurrence-Statement of prosecution witness was full of contradictions and confrontation with his previous statement---Motive could not be proved through any sufficient evidence and even the motive was not attributed to accused---Recovery of weapon from accused was legally inconsequential as no empty had been recovered from the spot and it could not be said that same weapon had been used during the occurrence---Prosecution also failed to produce the persons who had allegedly apprehended the accused immediately after the occurrence along with the said weapon and even their names were not disclosed by the complainant---Accused also claimed that pistol which he had picked from the spot and fired at the deceased belonged to deceased himself--Defence plea was also borne out from the record and circumstances of the case---No previous enmity existed between accused and deceased and accused had no other reason to commit the murder of the deceased---Complainant being a man of means, possibility of registration of case by concocting a false story, could not be ruled out---Prosecution witnesses were capable of making false evidence and they could not be relied upon for maintaining conviction in a case of capital sentence---Prosecution, in Circumstances had not been able to make out a case of qatl-i-amd against accused---Conviction and sentence under S.302(b) P.P.C. recorded by the Trial Court against accused, could not be maintained, which was set aside and in the alternative accused was convicted under S.302(c), P.P.C. and was sentenced to 10 years' R.I.

(b) Criminal Procedure Code (V of 1898)---

----S.342---Defence plea of accused---If the prosecution version was disbelieved and the conviction had to be based on the sole defence plea of accused taken in his statement under S.342 Cr.P.C., same had to be believed or rejected in toto and not in piecemeal to the prosecution version.

Sultan Khan v. Sher Khan and others PLD 1991 SC 520 and PLD 1996 SC 274 ref.

Malik Fazal Karim for Appellant.

Ch. Muhammad Hussain Chhachar, Additional Prosecutor General on behalf for the State.

Date of hearing: 25th January, 2007.

2008 M L D 700

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ARSHAD and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 188, P.S.L.A. No. 16 and Criminal Revision No. 97 of 2003, heard on 19th December, 2003.

Penal Code (XLV of 1860)---

----Ss.302(b) & 302(c)---Appreciation of evidence---Sentence, reduction in---Time, date and place of occurrence had not been denied---Fatal injury on the head of the deceased was attributed to accused and he had not repeated the injury---Injuries sustained by the accused party were not explained by the complainant in the F.I.R.---Occurrence was not a premeditated one---Conviction of accused under S.302(b), P.P.C. was altered to S.302(c), P.P.C. and his sentence of imprisonment for life was reduced to ten years' R.I. with benefit of S.382-B, Cr.P.C. in circumstances.

Zafar Iqbal Chaudhry for Appellants.

M. Saleem Shad for the State.

Zafar Iqbal Chauhan for the Complainant.

Date of hearing: 19th December, 2003.

2008 M L D 704

[Lahore]

Before Kazim Ali Malik, J

MUHAMMAD KHALIL---Petitioner

Versus

S.H.O. POLICE STATION GUITAR KHAN, DISTRICT RAWALPINDI and 5 others---Respondents

Writ Petition No.195 of 2008, decided on Nth February, 2008.

Criminal Procedure Code (V of 1898)---

----S.561-A---Constitution of Pakistan (1973), Art.199---Penal Code (XLV of 1860), Ss.468, 471, 419 & 420---Inherent jurisdiction of High Court under S.561-A, Cr.P.C.---Scope---Quashing of F.I.R.---High Court could exercise its inherent powers under S.561-A Cr.P.C. to prevent the abuse of process of law and to advance the interest of justice and to protect the rights of the citizens guaranteed by law and Constitution---In the present case no criminal offence could be said to have been committed by the petitioner on the basis of facts admitted and patent on record and in such circumstances allowing the prosecution or investigating agency to continue with the investigation would amount to abuse of process of law---While exercising inherent powers, only criterion would be whether the continuance of the investigation before the police at the instance of official would be a futile exercise wastage of time and abuse of process of law or not---Government official, in the present case, misused his official position in a crude form and in the circumstances it would be unjust to allow the police to drag the petitioner in frivolous litigation---F.I.R. was ordered to be quashed, in circumstances.

Petitioner in person.

Syed Shahid Hussain Kazimi, A.A.-G with Israr Satti, S.H.O. Police Station Gujjar Khan for Respondents.

Muhammad Altaf Naib Tehsildar in person.

2008 M L D 710

[Lahore]

Before Asif Saeed Khan Khosa and Hasnat Ahmad Khan, JJ

ZAHID HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 654 of 2004, heard on 20th February, 2008.

Control of Narcotic Substances Act (XXV of 1997)---

----S.9(c)---Appreciation of evidence---Sentence, reduction in---Accused who was sentenced to imprisonment for life and fine of Rs.3,00,000, did not challenge his conviction, but had prayed for reduction of his sentence---Accused was a young man and was a first offender---Proviso to S.9(c) of Control of Narcotic Substances Act, 1997 had indicated the sentencing scheme according to which if the quantity of narcotic substance recovered would exceed ten kilograms, then punishment for the offender could not be less than imprisonment for life---Said proviso had also suggested that for a quantity of narcotic substance less than ten kilograms, sentence to be awarded to the offender could be less than imprisonment for life---In the present case, recovered substance weighed five kilograms and accused was a young man and a first offender---Conviction of accused was maintained, but his sentence of imprisonment for life was reduced to ten years' R.I. and amount of fine was also reduced from Rs.3,00,000 to Rs.1,00,000, in circumstances.

Abdul Aziz Khan Niazi, Assisted by Azmat Ali Tagga for Appellant.

Mian Bashir Ahmad Bhatti, Deputy Prosecutor-General assisted by Rao Atif Nawaz for the State.

Date of hearing: 20th February, 2007.

2008 M L D 712

[Lahore]

Before Kazim Ali Malik, J

BAKHAT ZADA---Petitioner

Versus

S.H.O., POLICE STATION BANNI, RAWALPINDI and 2 others---Respondents

Writ Petition No. 1362 of 2003, decided on 20th February, 2008.

Criminal Procedure Code (V of 1898)---

----S.561-A---Foreigners Act (XXXI of 1946), S.14---Constitution of Pakistan (1973), Art,199- Quashing of F.I.R.---Powers "of High Court under S.561-A, Cr.P.C. read with Art, 199 of the Constitution---Scope----Petitioner/accused was not available for trial in the main case and for disposal, of petition for quashing of F.I..R.---Petition was not maintainable and competent because petitioner was arrested by the local police on the charge of staying in Pakistan without valid documents; that two conflicting versions/claims had been laid before the High Court, one by the police and other by petitioner/accused and High Court was not obliged to examine, analyse and scrutinize said counter-claims with the yardstick of the Trial Court---Petitioner challenged the allegation set up in the F.I.R. in the petition with the plea that he was not a foreigner, but was resident of Bajaur Agency---Petitioner produced certain documents before High Court in support of his plea, genuineness of which had been challenged by the law officer---High Court while deciding petition under Art.199 of Constitution read with S.561-A Cr.P.C. was not supposed and expected to assume the role of investigator---Petitioner should have put forward his defence version and the documents before the investigator instead of the High Court---Provisions of Art.199 of the Constitution were not meant to hamper investigation of criminal cases---High Court though was possessed with inherent powers under S.561 A Cr.P.C., but said provisions were not meant for the purpose of thwarting the criminal proceedings pending before the Trial Court or the investigation pending before the Investigating Agency--- Petition being without any substance, was dismissed, accordingly.

Nemo for Petitioner.

Syed Shahid Husain Kazimi, A.A.-G with Ghulam Rasool, S.-I. for Respondents.

2008 M L D 715

[Lahore]

Before Hafiz Tariq Nasim, J

SEERAT ALI---Petitioner

Versus

PROVINCE OF PUNJAB through Collector-District Officer Revenue and 10 others---Respondents

Civil Revision No. 816 of 2007, decided on 4th March, 2008.

Civil Procedure Code (V of 1908)---

----Ss.12(2) & 115---Revision petition---Suit filed by the plaintiff was concurrently dismissed by the Trial Court and Appellate Court and no further appeal or revision was filed before the High Court against judgment of the Appellate Court, however an application under S.12(2) C.P.C. was filed by the plaintiff after a lapse of more than one and a half years---Plaintiff, in circumstances, had tried to frustrate the object of law by way of indulging in suchlike indecent litigation---In absence of any illegality in the impugned order, revision against said order was dismissed.

Taqi Ahmad Khan for Petitioner.

Ch. Muhammad Javed Ghani for L.Rs. of Respondent. No.2.

2008 M L D 717

[Lahore]

Before Mazhar Hussain Minhas, J

MUHAMMAD ASGHAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 142-B of 2008, decided on 25th February, 2008.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, confirmation of---No dispute existed regarding issuance of cheques to the complainant by accused---Real controversy in the case requiring determination was as to whether cheques were issued by accused dishonestly to defraud the complainant or with bona fide intention---Matter between the parties was purely of civil nature, which was already sub judice before the competent forum---Certificate of Bank Manager had established that cheques in question had not been dishonoured due to lack of sufficient amount in the account of accused, but encashment had been refused under his own instructions---Accused, while issuing the cheques was not having any dishonest intention to deceive or defraud the complainant which was the main ingredient of offence under S.489-F P.P.C.---Investigation of the case had been completed and report under S.173, Cr.P.C. submitted to the concerned court---No useful purpose would be served by committing accused to the police custody--Ad interim pre-arrest bail already granted to accused, was confirmed, in circumstances.

Maj. (Retd.) Javed Inayat Khan Kiyani v. The State PLD 2006 Lah. 752 and Major Anwar ul Haq v. The State PLD 2005 Lah. 607 rel.

Ch. Muhammad Asif Rasheed for Petitioner.

Malik Waqar Haider Awan for the Complainant.

Ch. Sarfraz Ahrned Zia, Deputy Prosecutor General Punjab for the State with Muhammad Saleem, S.-I.

2008 M L D 721

[Lahore]

Before Maulvi Anwarul Haq, J

FAISALABAD DEVELOPMENT AUTHORITY through Director General, Faisalabad and 3 others---Petitioners

Versus

MAQBOOL HUSSAIN and 5 others---Respondents

Civil Revision No. 540 of 2007, decided on 3rd March, 2008.

Civil Procedure Code (V of 1908)---

----S.115---Revision petition--Revision was admitted to regular hearing and notice was issued to respondents---Some of the respondents put in appearance in person, while the others had been proceeded ex pane--Respondents who were present, after seeking some adjournments, stated that they were not in a position to engage an Advocate to appear---Position had been explained to respondents that under the law, regular appeal could not have been decided on merits in the absence of the parties---Allowing revision, impugned judgment and decree passed by Appellate Court, was set aside, with the result that first appeal would be deemed to be pending---Parties would appear before Appellate Court who would requisition the record and proceed with the hearing of appeal.

Shazia Sultana v. Razia Begum PLD 2003 Lah.27 ref.

Jehanzeb Bharwana for Petitioners.

Respondents Nos.1, 2, 4 and 5 in person.

Respondents Nos. 3 and 6 were proceeded ex parte.

2008 M L D 722

[Lahore]

Before M. Bilal Khan, J

ZAHID HUSSAIN and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos. 959/B 1023/B, 1050/B, 1051/B and 1148/B of 2008, decided on 7th March, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.371-A & 371-B---Bail, grant of---Further inquiry---Offence under S.371-A P.P.C. related to selling a person for the purpose of prostitution etc., whereas S.371-B P.P.C. related to buying a person for the purpose of prostitution etc.---Both said penal provisions in their respective explanations speak of running or managing a brothel where, in a nutshell, women trade was being carried for the purpose of prostitution---Even taking the prosecution case at its face value accused persons could be customers and it was yet to be seen as to whether provisions of Ss.371-A & 371-B P.P.C. could be invoked against them---Nothing was available on record to show that the police had obtained any warrants for conducting a raid at the house and it had yet not been determined as to who was the owner of the property; who were the tenants and what was the role of the owner and the tenants---As to in what connection accused persons were found present at the said place was not conclusively determined yet---Case of further inquiry within the meaning of subsection (2) of S.497 Cr.P.C., having been made out in favour of accused persons, they were admitted to bail.

Mst. Rabia Bibi v. The State 2004 PCr.LJ 1451; Shafiq-ur-Rehman v. The State 2006 MLD 357 ; Saeed Bibi alias Sada and 4 others v. The State 2005 MLD 1391 and Zeshan Ahmad v. The State 2007 YLR 1296 rel.

Zafar Iqbal Chohan for Petitioners.

Ghulam Murtaza Chaudhry for Petitioners (in Criminal Miscellaneous No.1023/R-2008).

Ghulam Siddique for Petitioners (in Criminal Miscellaneous No. 1050/B of 2008).

S.M. Farhad Tirmizi for Petitioners (in Criminal Miscellaneous No. 1051/B of 2008).

Shahzada Muhammad Zeeshan Mirza for Petitioners (in Criminal Miscellaneous No. 1148/B of 2008).

Ahsan Rasool Chatha, Deputy Prosecutor-General Punjab for the State with Niaz Ahmad, A.S.-I.

2008 M L D 725

[Lahore]

Before Hafiz Tariq Nasim, J

MANAK and 2 others---Petitioners

Versus

MUHAMMAD KHAN and 5 others---Respondents

Civil Revision No. 1489 of 2000, heard on 7th March, 2008.

Specific Relief Act (I of 1877)---

---Ss.42 & 54---Suit for declaration and permanent injunction---Suit had been concurrently decreed by the Trial Court and Appellate Court---Validity---Concurrent findings recorded by both said courts were unexceptionable, particularly in view of findings of the Appellate Court which had upheld judgment and decree passed by the Trial Court.

Hafiz Khalil for Petitioners.

Syed Samar Husain Shah for Respondents.

Date of the hearing: 7th March, 2008.

2008 M L D 728

[Lahore]

Before Muhammad Akram Qureshi, J

MANZOOR AKBAR TURK---Petitioner

Versus

Raja ASHIQ HUSSAIN and 6 others---Respondents

Writ Petition No. 544 of 2004, decided on 7th February, 2008.

(a) Criminal Procedure Code (V of 1898)---

----S. 190(1)(b)---Cognizance of offences by Magistrate---Magistrate under S.190(1) clause (b), Cr.P.C. takes cognizance of an offence upon report made by police officer under S.173, Cr.P.C., which may be positive or negative.

(b) Criminal Procedure Code (V of 1898)---

---Ss. 190 & 193-'Cognizance'-Connotation-Cognizance is application of mind by the Court on the facts and circumstances of the case---Court taking cognizance of an offence has to consider, (i) whether the offence falling within its jurisdiction is made out or not; whether offence is committed in its territorial jurisdiction; who are the persons responsible for the commission of the offence and whether in Court's opinion sufficient grounds are existing for proceeding with the trial.

(c) Criminal Procedure Code (V of 1898)---

---Ss. 193 & 204---Penal Code (XLV of 1860), Ss. 302/324/148/149---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Sessions Court had taken cognizance of the offence on the basis of facts mentioned in complaint but had shown its reluctance to proceed further on the basis of the report of the police officer---After having taken cognizance Sessions Court was required to process both the cases in accordance with the provisions of S.193, Cr.P.C. read with S.204, Cr.P.C.---Till that stage both the cases would be. dealt with independently---Accused summoned in the complaint case or in the challan case would be dealt with separately and supplied copies of required documents, and then Trial Court would proceed with the cases according to the law laid down by Supreme Court in Nur Elahi's case reported as PLD 1966 Supreme Court 708---Sessions Court while dealing with the present case did not observe the said precedent and relevant provisions of the Criminal Procedure Code, 1898 and its conduct was not in accordance with law---Impugned order was consequently set aside with the direction to Trial Court to proceed further with the police report case observing the provisions of sections 193 and 204, Cr.P.C. before framing the charge in the complaint case initiated upon the report of police officer---Since accused in both the cases were the same, Trial Court would consolidate both the complaint-case and the challan case and then frame the charge, complete all proceedings of the trial and hold proceedings in either of the two cases, examine all the witnesses of both the cases as prosecution witnesses and after having fulfilled the required formalities would announce one judgment in both the cases---Constitutional petition was disposed of accordingly.

Nur Ellahi. v. The State and others PLD 1966 SC 708; Zulifqar Ali Bhutto v. The State PLD 1979 SC 53; Atta Jilani, v. The State 1980 PCr.LJ 901 and Muhammad Bohra and another v. The State PLD 1989 Lahore 18 ref.

Malik Rab Nawaz Noon for Petitioner.

Muhammad Ilyas Siddique for Respondents Nos. 1 to 5.

Mudassar Khalid Abbasi, A.A.-G.

2008 M L D 735

[Lahore]

Before Tariq Shamim, J

Mst. DAHRAN BIBI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, PAKPATTAN SHARIF and others---Respondents

Writ Petition No. 11859 of 2007, decided on 14th. February, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 154, 22-A, 22-B---Penal Code (XLV of 1860), S.302---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of case, refusal of---Son of the petitioner as well as his friend and the third accused had participated in the crime of car snatching and had thereafter resorted to firing at the police party, in consequence of which a police encounter took place resulting in the death of the two accused---Commission of a cognizable offence in such circumstances was not free from doubt and the allegation levelled by the petitioner that the deceased had been killed in a fake police encounter, ex facie, did not appear to be credible---Petitioner had remained silent for four years for which she had not put forth any convincing reason---Grandson of the petitioner and his co-accused were desperate criminals who were involved in a number of criminal cases mostly of dacoity---Possibility that the petitioner was making a concerted endeavour to have false case registered against the respondents for some ulterior motive could not be ruled out and her intent smacked of malice---Impugned order of the Ex-officio Justice of Peace dismissing the petition of the petitioner for registration of the case against the respondents was based on logical conclusions and did not suffer from any error or infirmity---Even otherwise, petitioner had an adequate, alternate and equally officious remedy under the law by way of filing a private complaint against the accused respondents---Constitutional petition was dismissed in circumstances.

Khizar Hayat and others v. Inspector-General of Police (Punjab) and others PLD 2005 Lah. 470 rel.

Arshad Ali Chohan for Petitioner.

Amjad Ali Chattha, Assistant Advocate-General.

Respondent No.9 in person.

2008 M L D 738

[Lahore]

Before M. Bilal Khan, J

NASIR MAHMOOD---Petitioner

Versus

MUHAMMAD AKHTAR and another---Respondents

Criminal Miscellaneous No. 2851/CB of 2007, decided on 12th December, 2007.

(a) Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/324/148/149/109---Bail, cancellation of---Accused had been duly nominated in the F.I.R. with a specific role of causing fire-arm injuries to the deceased on his back and right thigh, as a result of which he died---Two innocent persons had lost their lives in the incident---Accused and his co-accused had been found innocent by local police, but later on they were found involved in the commission of crime during investigation conducted by the Range Crimes---Sessions Court had allowed bail to accused on the ground that since he had been allowed bail in the complaint case, there was no justification for refusing him bail in the State case; which was to be kept in abeyance and to be take up only after the proceedings in the complaint case were over---By doing so Sessions Court had fallen into a grave error, as in such like circumstances it had never been considered to be a ground for release on bail of an accused person in a State case---Submission of bail bonds by accused under S.91, Cr.P.C. upon issue of process in a private complaint would not ipso facto, bring the police case involving capital punishment within the ambit of S.497(2), Cr.P.C. ---Ordinarily in a complaint case the accused as having been summoned by Court was released on furnishing bail bonds, but such bail was of no avail to him in the connected challan case---Impugned bail granting order had militated against the established principles for the grant of bail in a charge entailing capital punishment---Bail .granted to accused was recalled accordingly.

Muhammad Hanif and 6 others v. The State 2001 PCr.LJ 1470 and Mukhtar Ahmad v. Muhammad Khurshid Kamal and another 1991 PCr.LJ Note 81 at p.56 ref.

(b) Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 91-Bail-Bail bonds for appearance do not make the case one of further inquiry---Submission of bail bonds by the accused under S.91, Cr.P.C. upon issue of process in a private complaint, would not, ipso facto, bring the police case involving capital punishment within the ambit of S.497(2), Cr.P.C.

Muhammad Hanif and 6 others v. The State 2001 PCr.LJ 1470 and Mukhtar Ahmad v. Muhammad Khurshid Kamal and another 1991 PCr.LJ Note 81 at p.56 ref.

Muhammad Waseem for Petitioner.

Respondent No. 1 in person.

Muhammad Iqbal Chaudhry, Deputy Prosecutor-General Punjab for the State with Riaz Hussain, S.-I.

2008 M L D 742

[Lahore]

Before Muhammad Ahsan Bhoon, J

GHULAM RASOOL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 104 of 2007, heard on 20th February, 2008.

(a) Prevention of Corruption Act (II of 1947)---

----S.5(2)---Penal Code (XLV of 1860), S.161---Appreciation evidence---Conversation between the accused and the complainant at the time of passing of bribe money was neither heard by any member of the raiding party nor they had witnessed the passing of bribe money from the complainant to the accused---Complainant had been declared hostile whereas rest of the two witnesses had not been produced by the prosecution---Case against accused, thus, was of no evidence---Mere recovery of tainted money from the possession of accused, was not enough to saddle him with the guilt of having received bribe unless he could be shown to have actually accepted the same with the knowledge that it was an illegal gratification and secondly that the agent provocateur passing money to another as a bribe was more than an accomplice in the crime and as such his testimony could not be accepted much less acted upon without corroboration from some independent source---Accused being a Patwari in the office of Sub-Divisional Canal Officer could hardly render any favour to the complainant, because grant of Warabandi could only be sanctioned by the Divisional Canal Officer---Accused was acquitted in circumstances.

(b) Prevention of Corruption Act (II of 1947)---

----S.5(2)---Penal Code (XLV of 1860), S.161---Bribery and corruption--In such-like transactions not only payment of bribe money to the accused by the complainant is to be seen, but also the conversation between the said parties has to be heard by the members of the raiding party---Such would be necessary to eliminate the chances of involvement of innocent, people.

(c) Prevention of Corruption Act (II of 1947)---

----S.5(2)7--Penal Code (XLV of 1860), S.161---Appreciation of evidence---Mere recovery of tainted money from the possession of accused is not enough to saddle him with the guilt of having received bribe unless he can be shown to have actually accepted the same with the knowledge that it is an illegal gratification.

Amir Majeed Rana for Appellant.

Syed Muhammad Imran Sherazi D.P.G. for Respondent.

Date of hearing: 20th February, 2008.

2008 M L D 746

[Lahore]

Before Hasnat Ahmad Khan, J

Rana RIAZ AHMAD KHAN---Petitioner

Versus

THE STATE and others---Respondents

Criminal Miscellaneous No. 449-M of 2003, decided on 10th January, 2008.

(a) Criminal Procedure Code (V of 1898)---

----Ss. 249-A & 561-A---Penal Code (XLV of 1860), S.182---Quashing of proceedings and orders---After receiving the information regarding the theft of Government trees S.H.O. should have taken the matter seriously and the fate of the application submitted by the petitioner "Lumberdar" should have been decided in view of the material evidence collected in this regard---Said application should not have been regarded as false only on the ground that the petitioner had failed to appear before the S.H.O. in response to summons---No oral or documentary evidence was available on record to show that the petitioner had committed the offence attracting the provision of S.182, P.P.C.---Under the law a person giving information to police was entitled to have his case judicially determined before he was called upon to answer the charge of giving false information---No show-cause notice was issued requiring the petitioner to explain his position as to why proceedings under S.182, P.P.C. be not taken against him---Continuation of proceedings under S.182, P.P.C. against the petitioner, thus, would amount to abuse of process of law---Charge levelled against the petitioner was groundless and there was no probability of his conviction in the case---Both the Courts below had committed illegality while dismissing the application of petitioner under S.249-A, Cr.P.C. and the revision filed by him---Petitioner had already undergone ordeal and rigours of the proceedings for five years---Impugned orders passed by the Trial Court and the Revisional Court were consequently set aside and the petition filed by the petitioner under S.249-A, Cr.P.C. was accepted and he was acquitted of the charge in circumstances.

Mian Fazal Ahmad v. The State PLD 1970 Lah. 726; Sarwar Begum v. The State 1974 PCr.LJ Note 114 at p.73; Muhammad Murad v. The State 1983 PCr.LJ 1097; Mst. Sarwat Ilyas v. The State 1991 PCr.LJ Note 86 at p.62; Murad Ali v. State 2000 YLR 376; Razia Bibi v. The State 1990 PCr.LJ Lah. 284; Nasim Akhtar Soofi v. The State 1990 PCr.LJ 1336; Evon Dilbar v. Innocent Dilbar Feroze and another 2004 PCr.LJ 428 and Muhammad Juman v. The State 2005 YLR 1785 rel.

(b) Penal Code (XLV of 1860)---

----S. 182---False information to police---Right of informer to explain his position---Person who gives information to police is entitled under the law to have his case judicially determined before he is called upon to answer the charge of giving false information.

Mian Fazal Ahmad v. The State PLD 1970 Lah. 726 and Sarwar Begum v. The State 1974 PCr.LJ Note 114 at p.73 ref.

Rana Zahid Iqbal for Petitioner.

Shahid Mehmood Khan, D.P.-G.

2008 M L D 751

[Lahore]

Before Muhammad Akram Qureshi, J

MAH RUKH BAJWA ---Petitioner

Versus

AFTAB ALAM and 2 others---Respondents

Criminal Miscellaneous No. 44-H of 2006, heard on 29th January, 2008.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Custody of minor children---Minor children were not snatched from the custody of their mother in the near past and they were neither in illegal and improper custody nor their lives were in danger---Children were living with the respondents since the year, 1999 and had been produced before High Court on a number of occasions---Children were reluctant to go to their mother and stay with her, as they were fully satisfied with the respondents-.-No emergency existed warranting transfer of custody of children from the respondents to the petitioner---Children were of understandable age who were, prima facie, leading a satisfied life and their affairs were being looked after properly and they were showing satisfactory performance in their education---However, final decision regarding' the welfare of the children and their custody would only be given by the Guardian Court after recording evidence---Petition was dismissed in circumstances.

Mst. Haleema Bibi v. Bashir Ahmed and 2 others 2000 PCr.LJ 1685; Muhammad Naseer Humayun v. Syeda Ummatul Khabir 1987 SCMR 174; Mst. Samina. v. Ashfaque Hussain and another 2000 MLD 351; Mst. Ansar Bibi v. S.H.O., Police Station Saddar Depalpur, District Okara and another 2000 YLR 2567; Mst. Aisha Bibi v. Nazir and 2 others 1981 SCMR 301; Mst. Aisha v. -Babar alias Badal and another 2001. PCr.LJ 1250; Muhammad Javed Umrao v. Miss Uzma Vahid 1988 SCMR 1891; Mst. Nayyara Naureen alias Shazia v. Muhammad Arif Butt Sabiri 2005 YLR 1047; Mst. Shazia Sharif v. Zeeshan Ahmed Dodhy and 2 others PLD 2001 Lah. 347 and Mst. Shagufta Yasmeen v. Babar Ali and another 2006 MLD 136 ref.

Sh. Waqar Ahmed for Petitioner.

Malik Qamar Afzal for Respondents.

2008 M L D 769

[Lahore]

Before Muhammad Alam Khan, J

SHER ALAM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 36 of 2008, decided on 3rd April, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 381-A & 411---Bail, grant of---Offence with which accused was charged, carried a maximum sentence of seven years which was not hit by the embargo contained in S.497, Cr.P.C.---In offences which carried a sentence shorter than ten years, life imprisonment and death, the grant of bail to accused was a rule and refusal an exception---If the offence was proved, then accused would serve the sentence awarded, but in case of ultimate acquittal, keeping an accused behind the bars could not be compensated---Accused, was released on bail accordingly.

Said Alam, Special Attorney for Petitioner.

Tariq Aziz Khan Baloch, D.A.G. for Respondent.

Date of hearing: 3rd April, 2008.

2008 M L D 771

[Lahore]

Before Hasnat Ahmad Khan and M.A. Zafar, JJ

KHADIM HUSSAIN alias KHAWAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 272-J and M.R. No.519 of 2002, heard on 20th March, 2008.

Penal Code (XLV of 1860)---

----Ss.302(b) & 452/109---Appreciation of evidence---Gruesome and tragic crime of double murder was committed in broad daylight at 9.30 a.m. and matter was reported to the police within two hours and there was no occasion for falsely attributing the role of butchering two people to accused-- Accused had a strong motive to murder deceased---Even otherwise absence and weakness of the motive could not furnish a ground for acquittal of accused, if the prosecution's version, otherwise stood established---Complainant being inmate of the house where occurrence had taken place, was a natural witness and had no enmity against accused and his other family members---Prosecution witnesses also had got no enmity to falsely implicate accused---One of the said prosecution witnesses was quite an independent witness---All three prosecution witnesses successfully stood the test of lengthy and searching cross-examination, which could not extract any noteworthy concession in favour of accused---Plea of alibi as advanced by defence witness being oral in nature and unsupported by any other source did not hold any water---Said evidence was useless and no reliance could be placed upon the same--Defence evidence did not advance the case of accused---Medical evidence had given a solid strength to the prosecution evidence--Recovery of blood-stained Chhuri was an added corroboration to the ocular evidence---Recovery of said blood-stained Chhuri was proved by the evidence of recovery witnesses, including the police officer---Report of Chemical Examiner was positive---Prosecution, in circumstances, did prove its case against accused beyond any shadow of doubt---Accused did not deserve acquittal---No mitigating or extenuating factors had been found in favour of accused, who murdered two innocent persons, including a baby of three years in a cruel and ruthless manner---Death sentence awarded to accused by the Trial Court was confirmed and Murder Reference was answered in the positive.

Salman Safar for Appellant.

Arif Mahmood Cheema for the State.

Date of hearing: 20th March, 2008.

2008 M L D 784

[Lahore]

Before Bashir A Mujahid, J

RAFIQUE AHMAD---Petitioner

Versus

SHABIR HUSSAIN alias SHAUKAT ALI and 2 others---Respondents

Criminal PSLA No. 92 of 2003, heard on 21st January, 2004.

Penal Code (XLV of 1860)---

----Ss. 302/148/149---Criminal Procedure Code (V of 1898), S.417(2)---Special leave to appeal, refusal of---Complaint filed by the complainant against the accused had been dismissed by Trial Court---Story narrated by the complainant in his complaint was completely different from the version adopted. by him in the F.I.R. got registered by him---Trial Court had believed the motive of the challan case and had rightly held by believing the story mentioned therein that the contradictory stand taken by complainant in his complaint had to be discarded---No misreading or illegality could be pointed out in appreciation of evidence by the Trial Court---Impugned judgment was not perverse warranting interference by High Court---Petition for special leave to appeal was dismissed in circumstances.

Ch. Muhammad Aslam Zia for Petitioner.

Date of hearing: 21st January, 2004.

2008 M L D 788

[Lahore]

Before M. Javed Buttar and Muhammad Muzammal Khan, JJ

RAHAM DAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 28-J of 2001, heard on 10th May, 2004.

Control of Narcotic Substances Act (XXV of 1997)---

----Ss. 9(c) & 9(b)---Appreciation of evidence---Accused had been apprehended on the spot along with the substance weighing 13 kilograms in the shape of different Chittars/slabs, which looked like "charas"---Recovery witnesses had fully supported the prosecution case and although they were police officials but they had no enmity with the accused to suggest false implication and they were as good witnesses as others---Prosecution witness had stated that sample "charas" of 100 grams was separated only from one Chittar and no evidence was available that the rest of the substance recovered at the instance of accused was also "charas"---Conviction of accused under S. 9(c) of the Control of Narcotic Substances Act, 1997, was consequently altered to S.9(b) of the said Act and his sentence of imprisonment for life was reduced to seven years' R.I. with fine in circumstances.

Farid Gul v. The State 2002 PCr.LJ 1810 rel.

Aftab Ahmad Bajwa for Appellant.

Ch. Nazir Ahmad for the State.

Date of hearing: 10th May, 2004.

2008 M L D 794

[Lahore]

Before Asif Saeed Khan Khosa, J

RIASAT ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.315-J of 2002, heard on 28th January, 2004.

(a) Penal Code (XLV of 1860)---

----S. 302(c)---Appreciation of evidence---Sentence, reduction in---Occurrence admittedly had taken place just outside the house of accused---Accused had accepted his presence and participation in the occurrence with the plea that he had killed the deceased after giving him a short chase on having found him in flagrante delicto with his mother--first plea advanced by the accused before Investigating Officer was the same which had been found by him to be factually correct---Accused had also not only suggested the said plea to all the eye-witnesses, but had even taken the same in his statement recorded under section 342, Cr.P.C.---Trial Court had disbelieved and discarded the motive set up by the prosecution and had found the presence of eye-witnesses at the place of occurrence at the relevant time to be doubtful---Case of prosecution in such circumstances had to be rejected and defence plea of accused had to be accepted as correct---No reason had been advanced by Trial Court for awarding the maximum sentence to accused under S.302(c), P.P.C.---When prosecution evidence was disbelieved then defence plea was to be accepted as correct---Conviction of accused was upheld, but his sentence was reduced to the imprisonment already undergone by him in circumstances.

(b) Penal Code (XLV of 1860)---

----S. 302(c)---Appreciation of evidence---Principles---When prosecution evidence is disbelieved then the defence plea is to be accepted as correct.

Mian Abdul Qayyum Anjum (Defence Counsel) at State Expense for Appellant.

Syed Azkar Abbas for the State.

Date of hearing: 28th January. 2004.

2008 M L D 802

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Asif Saeed Khan Khosa, JJ

RAHMAT ULLAH KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 3461-B of 2004, decided on 7th June, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Nothing was recovered from the accused---Allegation against accused was that he had led the police party to the place where co-accused allegedly involved in the business of sale of narcotics was present and on seeing the police he fled away, while throwing 1300 grams of "Charas"---Question as to how far the accused was liable in the circumstances for the offence falling under S.9(c) of the Control of Narcotic Substances Act, 1997, called for further inquiry---Accused was admitted to bail accordingly.

M.A. Zafar for Petitioner.

Ashfaq Ahmad Chaudhry for the State.

Abdul Rasheed A.S.-I.

2008 M L D 806

[Lahore]

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussain, JJ

ZULFIQAR ALI SHAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 849, Criminal Revision No. 474 and Murder Reference No.389 of 1999, decided on 23rd February, 2004.

(a) Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Eye-witnesses were related to the deceased as well as to the accused and they had absolutely no personal background of enmity or ill-will against the accused as to prompt them to falsely implicate him in the case---Place of occurrence having been established, availability of the eye-witnesses at the spot at the relevant time had been fully proved---Minor lapses committed by the Investigating Officer or by the Draftsman were utterly insufficient to shake the credibility of the eye-witnesses---Occurrence had taken place during broad-daylight---F.I.R. had been lodged by the complainant with reasonable promptitude---Accused had specifically been nominated in the F.I.R. as the sole perpetrator committing the offence of murder at the spot---Ocular testimony was worthy of implicit reliance and capable of inspiring complete confidence, which had full support from medical evidence and corroboration from the promptly lodged F.I.R.---Said pieces of evidence were amply sufficient to bring home guilt to accused---Mere failure of the prosecution to establish the motive set up by it was not by itself sufficient to reduce the sentence of an adjudged murderer from death to imprisonment for life---Accused could not be allowed to take advantage of his own silence about any justification regarding launching an aggression against the deceased or to claim a premium upon his own inaction and self-created mystery in that respect---Basis for a sympathetic treatment in the matter of sentence had to be laid by the accused himself and if he had kept mum in that regard then the law had to take its normal course---Accused had cold-bloodedly murdered an innocent person in the prime of his life without disclosing any justification whatsoever for such a dastardly act---Conviction and sentence of death of accused were upheld in circumstances.

(b) Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence---Motive---Failure on the part of prosecution to establish the motive set up by it may not by itself suffice to reduce the sentence of an adjudged murderer from death to imprisonment for life.

(c) Penal Code (XLV of 1860)---

----S. 302(b)---Sentence---Mitigating circumstance---Foundation to be laid by the accused himself---Accused cannot be allowed to take advantage of his own silence about any justification to launch an aggression against the deceased or to claim a premium upon his own inaction and self-created mystery in that respect---Basis for a sympathetic treatment in the matter of sentence has to be laid by the accused himself and if he keeps mum in that regard then the law had to take its normal course.

Syed Ijaz Qutab with Kashif Awan for Appellants (in Criminal Appeal No. 849 of 1999).

Syed Riaz-ul-Hassan Gillani for the Complainant.

Kazim Iqbal Bhangoo for the State.

Dates of hearing: 18th, 19th and 23rd February, 2004.

2008 M L D 816

[Lahore]

Before M. Bilal Khan, J

ARSHAD ALI---Petitioner

Versus

LIAQAT DHUDHI and 5 others---Respondents

Criminal Revision No.856 of 2006, decided on 31st January, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 345 & 248---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Withdrawal of complaint-Compromise-Petitioner had called in question order whereby private complaint filed by the petitioner had been dismissed by the Trial Court---Petitioner/complainant had withdrawn his earlier complaint stating that compromise had been effected with the respondents-Later on petitioner filed second complaint on the basis of the same facts, which having been dismissed by the Trial Court, he had filed revision petition against said dismissal---Trial had not commenced and case was at inquiry stage---Composition in a criminal case could be brought about in the manner as provided in S.345 Cr.P.C.---Composition in offences under Ss.302 & 324 P.P.C. was to be brought about before a court where prosecution for such an offence was pending, while no prosecution was pending in the case before the court and case was at inquiry stage---No compromise as contemplated under S.345(2) Cr.P.C. could be effected so as to entitle accused persons to the consequences which would flow from such compromise i.e. acquittal from the charge---Even otherwise compromise. of the offence required the co-operation and participation of both the parties, whereas withdrawal was a unilateral act on the part of the complainant---Court was to see whether petition was one for withdrawal or for compromise---Mere declaration of the complainant that he had compromised with accused, would not be sufficient---Court had to satisfy itself about the genuineness of the compromise and the capacity of the legal heirs or those entitled to compound the offence to enter into compromise---Neither a valid compromise had taken place nor the provisions of S.248 Cr.P.C. were attracted in the present case---Respondents, in circumstances, could not claim that they had been acquitted of the charge against them---Impugned order passed by the Trial Court was set aside---Complaint filed by petitioner would be deemed to be pending before the Trial Court which would be proceeded in accordance with law.

Azmat Bibi and another v. Asifa Riaz and 3 others PLD 2002 SC 687 ref.

Muhammad Waseem for Petitioner.

Mian Pervez Hussain, Advocate vice Rai Asif Mehmood Kharal for Respondents.

Naseer ud Din Khan Nayyar, Additional Prosecutor-General assisted by Ch. Nazeer Ahmad for the State.

Date of hearing: 31st January, 2007.

2008 M L D 820

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD ILYAS and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 9066-B of 2004, decided on 21st December, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/16---Bail, grant of---Investigating Officer had failed to verify the veracity of the Nikah Nama between both the accused, which was earlier than the date of occurrence and the date of registration of the case---Divorce between the female accused and her ex-husband, according to record, had also become effective much earlier---Said two documents had made the prosecution case doubtful, at least for the purpose of bail and case against accused was one of further inquiry---Accused were admitted to bail in circumstances.

Malik Muhammad Imtiaz Mahl for Petitioners.

Syed Tahir Abbas Rizvi for the State Dost and Muhammad, A.S.-I. with record.

2008 M L D 825

[Lahore]

Before Bashir A. Mujahid, J

HAJI MUHAMMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1597 of 2003, heard on 5th April, 2004.

Penal Code (XLV of 1860)---

----S. 311---Appreciation of evidence---Ocular testimony was corro­borated by medical evidence and the motive---Conviction of accused, therefore, was maintained---Deceased was sister of accused and she was survived by her father and mother, who while appearing as defence witnesses had forgiven the accused and had no objection for his release--Accused had no previous criminal history---Sentence of five years' R.I. awarded to accused by Trial Court was reduced to the imprisonment already undergone by him in circumstances---Appeal was disposed of accordingly.

Roshan Ali for Appellant.

Abaid ur Rehman Masood for the State.

Date of hearing: 5th April, 2004.

2008 M L D 829

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

ABDUL MAJEED and 2 others---Appellants

Versus

THE STATE and another---Respondents

Criminal Appeal No. 627 of 2002, heard on 14th May, 2004.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Benefit of doubt---Two versions---Concealing of facts---Effect---Trial Court, after conclusion of trial, convicted and sentenced both the accused to imprisonment for life--Validity---While putting both the versions in juxta position, High Court drew the conclusion that none of the parties had come with clean hands and had concealed the true facts---Courts, in such like situation, had to form its own opinion about mode and manner in which occurrence might have taken place---Occurrence was the result of sudden fight which erupted during cricket match---Every thing happened at the spur of the moment and it was not a pre-planned murder---In view of the statement of injured prosecution witness, the case of father of accused, who was an aged person, was not free from doubt---Both the accused were entitled to benefit of doubt---High Court set aside the conviction and sentence awarded to both the accused and acquitted them of the charge---Appeal was allowed in circumstances.

Syed Ali Bepari v. Nibran Mollha and others PLD 1962 SC 502 rel.

Sardar Khuram Lateef Khan Khosa for Appellant.

Ch. Muhammad Aslam for the Complainant.

Arif Ali Hazoor for the State.

Date of hearing: 14th May, 2004.

2008 M L D 836

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD YAQOOB and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 77 of 1993, heard on 30th July, 2004.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence---Benefit of doubt---Accused had not caused any injury to the deceased and the only allegation against them was that they had caught hold of the deceased while their co-accused had given the fatal below to him with a dagger on his chest---Was not necessary to catch hold of the deceased by the accused for causing the solitary dagger blow to him by the co-accused, which had made the prosecution case against the accused doubtful---Said main co-accused had already been acquitted of the charge after compromise with the 'legal heirs of the deceased---Benefit of doubt was extended to accused and they were acquitted accordingly.

Jameel Akhtar Mian and Khan Imtiaz Ali Khan for Appellants.

Malik Suleman Awan for the State.

Date of hearing: 30th July, 2004.

2008 M L D 840

[Lahore]

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussain, JJ

MATI-UR-REHMAN---Petitioner

Versus

ANTI-TERRORISM COURT, FAISALABAD and another---Respondents

Writ Petition No.11402 of 2004, heard on 21st July, 2004.

Penal Code (XLV of 1860)---

----Ss.395/353/324/186/148/149---Anti-Terrorism Act (XXVII of 1997), Ss. 7, 6(2)(m)(n), 6(1)(b) & 2(w)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Anti-Terrorism Court had dismissed the application of the accused for transfer of the case to the Court of ordinary jurisdiction vide impugned order---Validity---Accused and his co-accused had allegedly launched an assault upon members of the police force and some revenue officials so as to deter them from performing their official duties and had injured seven police officers---Actus reus attributed to the accused and his co-accused had, prima facie, attracted the provisions of S.6(2)(m) & (n) of the Anti-Terrorism Act, 1997---Said assault mounted by 35/40 persons was apparently designed to intimidate and overawe the Government, so as to attract the mens rea contemplated by the provisions of S.6(1)(b) of the said Act---Seven police officers had sustained eighteen injuries at the hands of accused party and three of them had received injuries on their heads exposing their bones, which could be termed as "dangerous to life" so as to attract the definition of "serious" provided by S.2(w) of the said Act---Impugned order, therefore, did not call for any interference---Constitutional petition was dismissed accordingly.

Ch. Arshad Mehmood for Petitioner.

Akhtar Ali Kureshi, Asst. A.-G. of the State.

Date of hearing: 21st July, 2004.

2008 M L D 845

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD SALEEM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 335-J of 2002, heard on 19th July, 2004.

Penal Code (XLV of 1860)---

----Ss.324 & 353---West Pakistan Arms Ordinance (XX of 1965), S.13---Appreciation of evidence--Sentence, reduction in--Case was one of police encounter---Accused was injured and arrested at the spot---Pistol and five bullets had been recovered from the accused---Eye-witnesses had deposed against the accused. corroborating each other---Guilt of accused, thus, was fully proved---Convictions and sentences of accused were maintained, except that sentence of five years' R.I. awarded to him under S.324, P.P.C. was reduced to four years' R.I. in circumstances---Sentences were ordered to run concurrently with benefit of S.382-B, Cr.P.C.---Appeal was disposed of accordingly.

Mrs. Siddiq Altaf Khan for Appellant.

Muhammad Anwar Ghaloo for the State.

Date of hearing: 19th July, 2004.

2008 M L D 847

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Asif Saeed Khan Khosa, JJ

Bao SALEEM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 82-J and M.R. No. 305 of 2000, heard on 19th May, 2004.

(a) Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Sentence, reduction in---Case was of single accused who had committed the murder of the deceased in broad-daylight---Record did not disclose any enmity of the eye-witnesses with the accused so as to falsely implicate him in the case---Sole statement of the brother of the deceased was sufficient to uphold the conviction of accused, which was corroborated by medical evidence and inspired confidence---Even otherwise, accused in his statement under S.342, Cr.P.C. had admitted commission of the offence raising a plea of insanity, which he had failed to substantiate--Conviction of accused was, therefore, maintained---However, record did not show as to what had transpired between the accused and the deceased immediately before the occurrence, genesis of which was shrouded in mystery---Motive for the occurrence was not proved---Recovery of blood-stained "Chhuri" at the instance of accused was doubtful---Sentence of death awarded to accused was altered to imprisonment for life in circumstances.

(b) Criminal jurisprudence---

----Administration of justice---Appreciation of evidence---Principle---While deciding a criminal matter it is the quality and not quantity of the evidence which matters.

Mirza Abdullah Baig for Appellant.

Ch. Ashfaq Ahmad for the State.

Date of hearing: 19th May, 2004.

2008 M L D 854

[Lahore]

Before Bashir A. Mujahid and Abdul Shakoor Paracha, JJ

ABBAS---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 323-J and Murder Reference No.577 of 2000, heard on 17th March, 2004.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Dying declaration---Unexplained delay---Death not direct result of injury---After sustaining injuries, deceased remained admitted in hospital for treatment and died about 49 days after the occurrence---On the basis of dying declaration of deceased, Trial Court convicted the accused and sentenced him to death--Validity---Occurrence took place on 25-9-1993 at 9-15 p.m. in the fields and statement of deceased was recorded on 29-9-1993 at 8-00 p.m. in the hospital---When deceased was brought in hospital in injured condition, he was in senses and he did not nominate any culprit---Investigating Officer visited the hospital where deceased was admitted for treatment but he did not get his statement recorded after obtaining opinion of doctor about his condition---No explanation was available as to why statement of deceased was not recorded from 25-9-1993 to 29-9-1993, during which period relatives of deceased remained with him---Investigating Officer while recording statement of deceased did not observe legal formalities as required under Police Rules---Investigating Officer had neither taken any step to bring Magistrate for recording dying declaration, nor he associated the. doctor---Investigating Officer also did not observe that relatives of injured were turned out of room at the time of recording statement of deceased---Possibility that deceased while in injured condition was tutored during the period of his treatment and he had made the statement with consultation/due deliberation, could not be ruled out---Deceased died on 18-11-1993 meanwhile he had undergone surgical intervention and cause of death as noticed by doctor was septicemia which he developed while he was admitted in hospital---Death of deceased was not direct result of injury caused to him by accused---High Court set aside the conviction and sentence awarded to accused by Trial Court and acquitted him of the charge---Appeal was allowed in circumstances.

Marina Parveen Ch. for Appellant (at State expenses).

Ashfaq Ahmed Ch. for the State.

Date of hearing: 17th March, 2004.

2008 M L D 863

[Lahore]

Before Iqbal Hameedur Rehman, J

RANA BASHIR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2036/B of 2007, decided on 9th October, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.420, 468 & 471---Bail, grant of---Bail had been granted to co-accused by the High Court---Case of accused was at par with co-accused who were granted bail---Accused was allegedly only the marginal witness of agreement in question and was not the beneficiary of the transaction---Keeping accused in jail for an indefinite period would amount to punishment before the trial---Keeping in view the rule of consistency, accused was also entitled for the grant of bail.

Muhammad Umar v. The State and another PLD 2004 SC 477; Muhammad Mumtaz v. The State 2004 PCr.LJ 1875; 1990 ALD 650; 2005 PCr.LJ 1797; Imtiaz v, The State 2006 PCr.LJ 107; Aurangzeb alias Ranga v. The State 1991 PCr.LJ 1299 and Fida Hussain v, The State and others 2002 SCMR 46 rel.

Muhammad Ramzan Khalid Joyia for Petitioner.

Abdul Aziz Khan Niazi for the Complainant.

Ch. Bashir Ahmad Bhatti, D.P.G. for the State.

2008 M L D 868

[Lahore]

Before Mian Hamid Farooq and Syed Hamid Ali Shah, JJ

TEHSIL MUNICIPAL ADMINISTRATION; MANDI BHAUDDIN---Appellant

Versus

EVACUEE TRUST PROPERTY BOARD and 4 others---Respondents

I.C.A. No. 100 of 2004 in Writ Petition No.12477 of 2003, decided on 5th July, 2005.

Law Reforms Ordinance (XII of 1972)---

----S. 3---Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975), S.17---Intra-Court appeal---Competency---Constitutional petition having been dismissed, appellant challenged said dismissal order through Intra-Court Appeal as well as through petition for leave to appeal before Supreme Court, appellant thus had resorted to both the remedies---Validity---Appeal was a substantive right and could only be availed, if law would provide same---Intra-Court appeal, could not be entertained; firstly for the reason that petition for leave to appeal was pending before the Supreme Court and to entertain Intra-Court appeal would nullify the effect of the pendency of that petition; secondly, that disputed property was declared as evacuee property, sold in auction and that sale was approved by Evacuee Trust Board---Provisions of S.17 of Evacuee Trust Properties (Management and Disposal) Act, 1975 had provided the remedy of revision before Federal Government---Intra-Court appeal was not competent, in circumstances.

Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473; Muhammad Abdullah v. Deputy Settlement Commissioner Centre-I, Lahore PLD 1985 SC 107 and Mst. Karim Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 ref.

Muhammad Shahzad Shaukat for Appellant.

Muhammad Qamar-uz-Zaman for Respondents Nos. 1 to 3.

Rafique Ahmad, A.A.-G. for Respondent No.4.

Ashtar Ausaf for Respondent No.5.

2008 M L D 875

[Lahore]

Before Zafar Iqbal Chaudhry, J

AMIR BASHIR---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSION JUDGE, FAISALABAD and 2 others---Respondents

Writ Petition No. 23598 of 2000, heard on 28th March, 2008.

Civil Procedure Code (V of 1908)---

----O.XXXII R.6 & S.12(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Application for setting aside judgment and decree passed in favour of minor---Protection of interest of the minor---Suit by plaintiff/minor through his grandmother having been decreed, defendant filed application under S.12(2) C.P.C. for setting aside judgment and decree---Plaintiff, who was minor at the time of filing of suit, was represented through his grandmother as guardian ad litem---No doubt representation was made before the court by grandmother, but due to her ailment and old age, she could not file written statement in the court despite opportunity was provided to her---Fact of ailment of grandmother was brought to the notice of the Trial Court by way of . medical evidence, but the Trial Court struck off defence of plaintiff on application filed by defendant under S.12(2) C.P.C.---Validity---Both the courts below had ignored the important aspect of the case that plaintiff was minor who was represented through his seriously ill grandmother; it was the duty of the court to protect the interest of the minor under O.XXXII, R.6 C.P.C. and defence of the plaintiff should not have been struck off---If the minor was not being represented properly due to failure on the part of his guardian, the Trial Court, considering the factum of minority and to protect the interest of minor, could arrange another guardian ad litem for pursuing the matter---Striking off defence had caused great miscarriage of justice as valuable rights of the plaintiff were involved and by striking off his defence, minor could be deprived of the same---Concurrent orders of the courts below were set aside and case was remanded to the Trial Court with direction to provide an opportunity to plaintiff/minor to file his written statement in the case.

Mst. Rooh Afza v. Sher Aman Khan and others PLD 1993 Pesh. 49 ref.

S.M. Masud for Petitioner.

Nemo for Respondent No.3.

Date of hearing: 28th March, 2008.

2008 M L D 877

[Lahore]

Before Kh. Farooq Saeed, J

Raja SHAMSHER MEHDI---Petitioner

Versus

Malik MUHAMMAD RIAZ and another---Respondents

Civil Revision No.70 and Writ Petition No. 785 and 2155 of 2005, heard on 17th March, 2008.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.13---Specific Relief Act (I of 1877), S.12 Civil Procedure Code (V of 1908), S.148---Constitution of Pakistan (1973), Art.199---Constitutional petition---Specific performance of agreement to sell---Relationship of landlord and tenant---Settlement in court---Extension of time---Petitioner was tenant in suit house and respondent being landlord entered into agreement to sell---Proceedings on ejectment application filed by respondent were stopped due to filing of suit for specific performance of agreement to sell by petitioner---Both the parties settled their dispute before civil court and petitioner agreed to deposit balance sale consideration within 15 days---On failure to make payment within 15 days civil court passed an order, against which petitioner filed appeal but it was dismissed by Appellate Court on the ground that no appeal was available against consent decree---Appellate Court also declined to entertain application filed by petitioner under S.148 C.P.C. for extension in time for deposit of balance amount---Rent Controller continued ejectment proceedings against petitioner---Validity---Specific performance of agreement would be no ground to avoid eviction of tenant by Rent Controller, if other requirements of law had been fulfilled---Mere agreement to sell did not confer any right of ownership or right to possess a property without fulfilling requirements like payment of rent etc. as per agreed relationship prior to agreement to sell---Agreement to sell having already been .declared as rescinded and after its confirmation by High Court no further benefit could be allowed to petitioner through such flimsy petitions---Request for extension of time refused by Trial Court was well within its discretion---If petitioner had filed application under S.148 C.P.C. before expiry of period mentioned in the order passed by Civil Court, the same could have been entertained---After expiry of period mentioned in the order passed by civil court, which was 15 days, Trial Court had become functus officio hence there was no question of any interference by High Court in exercise of constitutional jurisdiction---Confirmation of the order by Appellate Court was also unexceptionable---Constitutional petition was dismissed in circumstances.

Abdul Haq and another v. Syed Basharat Ali 1985 CLC 1429; Barkat Ali v. Messrs Pakistan Sanitary & Drainage Works 1974 SCMR 75; Ashfaq-ur-Rehman Khan v. Ch. Muhammad Afzal, Mutwalli, Waqf Property PLD 1965 (W.P.) Lah. 59 and Khan Muhammad v. Additional District Judge, and others NLR 1987 Civil 160 distinguished.

Synthetic Chemicals Company Ltd. PLD 1988 Kar. 429; Riaz Hussain v. Nazar Muhammad and others 2005 SCMR 1664 and Haji Abdul Latif and 4 others v. Ateeq Ahmad and 3 others 2004 YLR 985 rel.

Malik Qamar Afazal, Malik Nasrullah Awan and Malik Jawwad Khalid for Petitioner.

Malik Saadat Hussain for Respondents.

Date of hearing: 17th March, 2008.

2008 M L D 883

[Lahore]

Before Ali Akbar Qureshi, J

LIAQAT HAYAT KHAN WAHLA---Appellant

Versus

MIAN MUHAMMAD TRUST HOSPITAL, FAISALABAD, through Honarary Secretary ---Respondent

S.A.O. No. 38 of 2008, decided on 24th March, 2008.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S.15 (6)---Limitation Act (IX of 1908), S.3---Appeal---Condonation of delay---Principle---Plea raised by appellant was that delay was neither intentional nor deliberate---Validity---Requirement of law was to explain delay of each and every day in filing appeal---Such essential ingredients were conspicuously absent in the application for condonation of delay---Appeal was time barred on account of non-disclosure of sufficient and tangible explanation for such delay---Appeal was dismissed in circumstances.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13(6), 13-A & 15(6)---Second appeal---Wilful default in payment of monthly rent---Concurrent findings of facts by the courts below---Rent Controller passed an order under S.13 (6) of West Pakistan Urban Rent Restriction Ordinance, 1959, with regard to arrears of rent as well future rent---Tenant failed to deposit the rent on the ground that no notice under S.13 (a) of West Pakistan Urban Rent Restriction Ordinance, 1959, with regard to change of ownership was received by him---Validity---If tenant was not willing to pay monthly rent, he could not be allowed to retain possession of rented premises and could not ask any relief from courts of law---Conduct of tenant remained contumacious by not complying with lawful order of Rent Controller and by not producing any evidence to substantiate his claim---Nothing was placed on record by tenant which could show that non-compliance of order to deposit future rent was beyond his control or due to act of God---Tenant failed to perform his legal obligation and disobeyed lawful order of court wilfully and intentionally, hence he was rightly held to be a wilful defaulter---No case for interference with concurrent and consistent findings of the courts below was made out, as the conclusions drawn by them were in conformity with law and facts---Second appeal was dismissed in circumstances.

Muhammad Siddique Bajwa for Appellant.

2008 M L D 891

[Lahore]

Before Abdul Shakoor Paracha and Hasnat Ahmad Khan, JJ

MUHAMMAD SHARIF and another---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1084 of 2004, heard on 15th January, 2008.

Control of Narcotic Substances Act (XXV of 1997)---

----Ss. 9(c) & 25---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Appreciation of evidence---Sentence, reduction in---Recovery of Charas and opium had been proved by prosecution by producing prosecution witness who was posted at C.I.A. Staff at relevant place and said prosecution witness was corroborated by another recovery witness---Defence could not create any dent in the evidence of said prosecution witnesses in cross-examination---Case property/Charas and opium were produced in the court in duly sealed parcels---Reports of the Chemical Examiner tendered in evidence were positive---Accused persons had not produced any evidence in support of their plea that they had been falsely involved in the case by Investigating Officer at the instance of one who was inimical to one of accused persons after taking considerable gratification from said person---Validity---Grievance of accused persons that Investigating Officer had not associated any private person with the recovery proceedings, was not sustainable because S.25 of Control of Narcotic Substances Act, 1997, had dispensed with the association of the private person in the matters pertaining to recovery of narcotics---Prosecution, in circumstances, was able to prove the case against accused persons beyond any shadow of doubt---One Kg. Charas and one Kg. opium of the alleged total narcotics having been proved to be Charas and opium, while upholding the conviction, appeal filed by accused persons was partly allowed qua the sentence---Sentence of imprisonment for life each awarded to accused persons was reduced to 10 years' R.I.---Sentence of fine, however was maintained.

Muhammad Hashim v. The State PLD 2004 SC 856 and Waris Khan and 2 others v. The State 2006 SCMR 1051 ref.

Aftab Ahmad Bajwa for Appellant.

Muhammad Mazhar Sher Awan, A.P.G. for the State.

Date of hearing: 15th January, 2008.

2008 M L D 896

[Lahore]

Before Khawaja Muhammad Sharif and Rustam Ali Malik, JJ

JAMIL alias SABU---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 320-J and Criminal Revision No.832 of 2001, heard on 21st July, 2007.

Penal Code (XLV of 1860)---

----S.302(b)/34---Appreciation of evidence---Case of promptly lodged F.I.R.-Only one injury on the person of deceased proved fatal---Accused had opened the attack and motive also lay with him---Accused having absconded was declared proclaimed offender---Accused had not produced a single witness before the Trial Court to support the plea of alibi which he raised---Examination-in-chief of defence witness was based on hearsay---Accused was declared innocent without any solid and tangible evidence on record---Opinion of the police was not binding upon the courts---Ocular account having come from an unimpeachable source was, fully corroborated by the medical evidence and motive---No further corroboration was required in the case---Thirty four crime empties including 20 of .12 bore gun, 4 of 7-MM rifle and 10 of 222 rifle, were recovered from the spot---Three types of weapons, in circumstances were used in the occurrence and accused was armed with rifle 7-MM---Occurrence had taken place in broad day-light and shot fired by accused on the chest of deceased proved fatal---No mitigating circumstances were available in favour of accused to award him lesser sentence---Prosecution having been successful in proving its case against accused to its hilt through ocular account duly corroborated by medical evidence, conviction and sentence recorded by the Trial Court against accused was maintained in toto.

Ahsan Bhoon and M. Sharif for Appellant.

Abdul Rashid Mian for the State.

Ch. Muhammad Ashraf Kamboh for the Complainant.

Date of hearing: 21st July, 2004.

2008 M L D 905

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD AFZAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 5758-B of 2007, decided on 1st October, 2007.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 34 & 109---Bail, grant of---Further inquiry---Allegation against accused was that he was present at the time of occurrence and raised Lalkara---No recovery had been effected from accused during the course of investigation---Accused though was shown in the F.I.R. as armed with rifle, but Investigating Officer had failed to ascribe him any active role except his presence empty-handed at the spot---Motive was also not attributed to accused---Accused was behind the bars since his arrest and trial had not commenced---Such circumstances had provided sufficient grounds for further inquiry into guilt of accused---Accused was admitted to bail, in circumstances.

N.A. Butt for Petitioner.

Asif Mehmood Cheema, Deputy Prosecutor General.

2008 M L D 909

[Lahore]

Before Khawaja Muhammad Sharif, J

TAHIR and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 738 of 2002, heard on 19th January, 2004.

Penal Code (XLV of 1860)---

----Ss.302(b) & 324---Appreciation of evidence--Place and time of occurrence was not disputed between the parties---Even the presence of accused persons and the eye-witnesses at the spot was not disputed--Version put forward by accused persons with regard to exercise of right of self-defence, was totally unbelievable---None of accused persons received any scratch on his body---Not a single fire-arm sign was found of any bullet, neither on outer wall of the house of the accused persons nor on their video shop which was situated there---Case being that of common intention, everybody was liable for the act of others---Co-­accused was not awarded any sentence under S.302(b) P.P.C., but was convicted under S.324 P.P.C. and sentenced to undergone 10 years' R.I.---Accused was not awarded any separate sentence for causing injuries to injured prosecution witnesses, which were three in number---Trial Court. had not convicted accused under S.324 P.P.C---Defence Counsel, during cross-examination, had himself brought the motive on the record that two hours prior to occurrence, a quarrel had taken place between deceased and acquitted accused---No case of right of self-defence was made out in favour of accused---Already a very lenient view had been taken by the Trial Court---No case for interference having been made out, appeal was dismissed.

Sher Afgan Asadi for Appellants.

Ms. Nasuheen Taskeen for the State.

Date of hearing: 19th January, 2004.

2008 M L D 919

[Lahore]

Before Khalil Ahmad and Kazim Ali Malik, JJ

Mir EHSAN MEHMOOD---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No. 19 of 2008, heard on 17th March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 514---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17---Penal Code (XLV of 1860), Ss.397/394/395/412---Forfeiture of bail bonds---Trial Court, after failure to procure attendance of accused released on bail through all legal means including the coercive measures, forfeited the bail bonds of the surety and on his failure to deposit the forfeited amount of Rupees one lac his house was put on auction for the recovery of the same---Validity---Court under S.514, Cr.P.C. could proceed to recover the surety amount by issuing a warrant for the attachment and sale of the movable property of the petitioner surety and if the forfeited amount was not recoverable through the sale of movable property of the surety, he was liable to imprisonment in the civil jail for a period extending to six months---Immovable property of the petitioner could not be attached by Trial Court under the law and his house could not be put on auction or sale---Impugned, order was violative of the statutory provisions of S.514, Cr.P.C. and the same was set aside accordingly---Trial Court was directed to recover the forfeited amount by adopting the course prescribed by law and not through any self-styled procedure unwarranted in law---Revision petition was accepted in circumstances.

Shahid Mahmood Mughal for Appellant.

Syed Hussnain Kazim, A.A.-G. for the State.

Date of hearing: 17th March, 2002.

2008 M L D 925

[Lahore]

Before Sh. Abdul Rashid and M. Bilal Khan, JJ

GHULAM HUSSAIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.36 of 2002, heard on 22nd January, 2004.

Control of Narcotic Substances Act (XXV of 1997)---

----S.9(c)---Reduction 'in sentence due to sickness and old age---Appeal was not pressed on merits and only reduction in sentence was sought---Accused, according to the report of Jail Medical Officer, was 70/80 years old and was suffering from involuneier continuous tremors of whole head and both hands with unstable gait and he was hypertensive with weak sight of his both eyes---Accused, thus was an extremely sick and old person---Conviction of accused was consequently maintained, but his sentence of ten years' R.I. was reduced to the imprisonment already undergone by him in circumstances---Sentence of fine of accused was also remitted.

Ch. Nawab Ali Mayo for Appellant.

Abdur Rehman for the State.

Date of hearing: 22nd January, 2004.

2008 M L D 927

[Lahore]

Before Hasnat Ahmad Khan, J

MURSLEEN alias KAKA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 236-B of 2007, decided on 21st February, 2007.

Criminal Procedure Code (V of 1898)---

----S.497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Bail, grant of---Report of Chemical Examiner regarding the material recovered from the possession of accused, had not been received by the prosecution---Offences allegedly committed by accused did not fall within the prohibitory clause---Investigating Officer present in court had admitted that accused was behind the bars since 21-10-2006---Accused was no more required for the investigation---No useful purpose would be served by detaining accused any further---Accused was admitted to bail, in circumstances.

Tariq Bashir v. The State PLD 1995 SC 34 rel.

Saghir Hussain Bhatti for Petitioner.

Ishaq Masih Naz, DPG for the State.

2008 M L D 929

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD SHAFIQUE ANJUM---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No.7019 of 2006, decided on 20th February, 2007.

Punjab Finance Act (IX of 1997)---

----S.7---Constitution of Pakistan (1973), Art.199---Constitutional petition---Levy and collection of tax on luxury vehicle---Vehicle of petitioner was a double cabin pick-up which had engine capacity 2779 cc---Said vehicle fell within the definition of luxury vehicle as laid down in subsection (b) of S.7 of Punjab Finance Act, 1997, irrespective of its use---Contention of the counsel for the petitioner was that said vehicle was not being used as luxury for the luxurious purposes, instead it was used for field duty-Use of vehicle was not an important consideration for determination of its status in view of contents of S.7(b) of Punjab Finance Act, 1997.

N.A. Butt for Petitioner.

Ch. Khurshid Anwar Bhindar, Addl.A-G., Punjab.

Ahmad Saeed, on behalf of Respondent No.3.

2008 M L D 932

[Lahore]

Before Sardar Muhammad Aslam and Muhammad Akram Qureshi, JJ

MUHAMMAD AKRAM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.1 of 2007 in Criminal Appeal No.856 of 2007, decided on 18th December, 2007.

Criminal Procedure Code (V of 1898)---

----S. 426---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 15---Suspension of sentence---Accused could not be deemed to have acquired knowledge of concealment of narcotics by co-accused---Accused was simply driving a motorcycle---No recovery was effected from his person---Conviction, prima facie, had been based on presumption---Accused had made out a case for suspension of sentence---Sentence of accused was suspended accordingly.

N.A. Butt for Petitioner.

Ijaz Ahmad Bajwa, DPG for the State.

2008 M L D 933

[Lahore]

Before Khawaja Muhammad Sharif, J

NAWAZ and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.1465 1470 and Criminal Revision No.810 of 2002, heard on 27th May, 2004.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Accused persons had been attributed injuries on the person of deceased and injured prosecution witnesses---No enmity, whatsoever, was found between accused persons and the prosecution witnesses---Three witnesses were in the-case and one of them, who was injured in the occurrence, was the star witness of the prosecution---As parties resided adjacent to each other there was no question of mistaken identity---Case was that of broad day-light occurrence and a promptly lodged F.I.R.---Ocular account was fully corroborated by medical evidence and even the time of Medico-legal Report and that of post-mortem examination also coincided with the time of occurrence---Nb\reason existed to the effect that complainant party would leave culprit and would involve accused persons---Prosecution had proved its case against accused persons beyond any shadow of doubt---Conviction awarded to accused persons was maintained---All sentences awarded to accused persons were ordered to run concurrently with benefit of S.382-B, Cr.P.C.

PLD 2004 SC P. 371 rel.

Mian Sikandar Hayat, Ch. Imran Raza Chadhar and Syed Seerat Hussain Naqvi for Appellants.

Asif Hassan Shaikh for the State.

Abid Saqi and Muhammad Ayub Joya for the Complainant.

Date of hearing: 27th May, 2004.

2008 M L D 943

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD BASHIR---Appellant

Versus

MUNAWAR HUSSAIN---Respondent

R.S.A. No.111 of 2007, decided on 25th March, 2008.

Punjab Pre-emption Act (IX of 1991)---

----Ss.13 & 30---Limitation Act (IX of 1908), S.18---Fraud---Proof---Extension in period of limitation---Principle---Suit-land was transferred through registered sale-deed dated 10-2-2003 and the suit was filed by pre-emptor on 26-6-2003---Suit was dismissed by Trial Court being time-barred and appeal before Appellate Court was also dismissed---Plea raised by pre-emptor was that sale-deed was kept secret and when he came to know about the sale-deed, he filed suit which was in accordance with law---Validity---Such was not simple concealment which would bring S.18 of Limitation Act, 1908, into play rather concealment had to be fraudulent---Not only the sale was effected by means of registered document but later on mutation was also sanctioned on the basis of the same---Pre-emptor neither stated particulars of fraud nor there was any allegation of fraud in the original plaint---Even in the proposed amendment there was no allegation of fraud or fraudulent concealment of sale---Case of pre-emptor did not come within the mischief of S.18 of Limitation Act, 1908---Second appeal was dismissed in limine.

Mst. Ghulam Bibi and others v. Sarsa Khan and others PLD 1985 SC 345 and PLD 2006 Lah. 365 ref.

Zaka ur Rehman Awan for Appellant.

2008 M L D 946

[Lahore]

Before Hasnat Ahmad Khan, J

MUHAMMAD AMIN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 8230-B of 2007, decided on 14th January, 2008.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss. 302, 170, 171, 109, 148 & 149---Bail, grant of---Further inquiry---F.I.R. in the case had been lodged with noticeable delay---Occurrence in the case had taken place during night and accused was not nominated in the F.I.R., but was implicated in the case through a supplementary statement of complainant which was recorded after about one year and two months after the occurrence---Neither complainant nor prosecution witness attributed any specific role to accused---Credibility of said witnesses would be needing further probe---Identification parade which was necessary, had not been held---Evidentiary value of the alleged recovery of rifle from the jungle on pointing out of accused would also need further probe into the matter---Case of further inquiry into the guilt of accused within the purview of S.497(2), Cr.P.C. had been made out---Accused was also entitled to bail on basis of principle of rule of consistency as his co-accused, who had been specifically named in the F.I.R., as one of the perpetrators of the crime, had already been granted bail---Accused was admitted to bail, in circumstances.

Aftab Ahmad Bajwa for Petitioner.

Shahid Mehmood Khan, Deputy Prosecutor-General with Muhammad Boota, S.-I.

2008 M L D 949

[Lahore]

Before Syed Shabbar Raza Rizvi, J

MUHAMMAD QASIM---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 5187-B of 2006, decided on 18th October, 2006.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 156(b) (as amended)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10 & 16---Bail, grant of---Benefit of doubt---Case was not investigated by a Superintendent of Police, whereas under amended S. 156(b) Cr.P.C. no police officer below the rank of a Superintendent of Police would investigate such offence nor would such accused be arrested without permission of the court---No permission from the court was sought for arrest of accused---Non­compliance of provisions of amended S. 156(b) Cr.P.C. was a serious omission aid would entail consequences---Whole investigation and subsequent 'proceedings on basis of said investigation had become illegal---Factual controversy involved in the case required deeper appreciation which vas not permissible at bail stage---Benefit of doubt having been given to accused, he was allowed bail.

Shafiq-ur-Rehman v. State 2006 MLD 357 and 2005 YLR 1634 ref.

Syed Faizul Hassan for Petitioner.

Syed Arif Hussain for the Complainant.

Khuram Tasir for the State.

2008 M L D 951

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD RAMZAN---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, KHUSHAB and 3 others---Respondents

Writ Petition No.9858 of 2007, decided on 8th October, 2007.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of case---Petitioner had sought registration of criminal case against respondent on the charge that he had played a fraud with the petitioner with regard to marriage of petitioner with a certain woman---Petitioner had alleged that respondent had received two lacs of rupees, but woman with whom his marriage had taken place, after remaining some days with him left his house and did not return---Application filed by the petitioner to the Justice of Peace for registration of criminal case against respondent was also dismissed---Validity---Best course in circumstances for the petitioner was to first file suit for restitution\f conjugal rights---No case for interference having been made out, constitutional petition was dismissed.

Naseem Ullah Khan Niazi for Petitioner.

2008 M L D 952

[Lahore]

Before Mian Muhammad Najum uz Zaman, J

Malik AZIZ AHMED---Petitioner

Versus

THE STATE---Respondent

Criminal Appeal No.1265 of 2000, heard on 18th May, 2004.

Emigration Ordinance (XVIII of 1979)---

----Ss. 17/22---Appreciation of evidence---Sentence, reduction in---Evidence of intending emigrants had revealed that they had paid the amount in question to the complainant and not to accused---Possibility that intending emigrants were defrauded by accused with the connivance of complainant could not be ruled out in circumstances---Amount in question along with documents had already been returned to the intending emigrants and none of them approached the FIA Authorities for any legal action against accused---Accused was facing the agony of the case for the last twenty years---While dismissing appeal, sentence of imprisonment awarded to accused was reduced to the period already undergone by him and fine was also reduced to Rs. 25,000.

Abdul Lateef Ch. for Appellant.

Nemo for the State.

Date of hearing: 18th May, 2004.

2008 M L D 955

[Lahore]

Before Syed Shabbar Raza Rizvi and Muhammad Akram Qureshi, JJ

Sh. MUHAMMAD MANSOOR---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry Interior and 3 others---Respondents

Writ Petition No. 9290 of 2007, decided on 25th March, 2008.

Exit from Pakistan (Control) Ordinance (XLVI of 1981)---

----S.2---National Accountability Ordinance (XVIII of 1999), S.18(c)---Constitution of Pakistan (1973), Arts. 4, 9, 15 & 199---Constitutional petition---Exit control list---Constitutional guarantees---Pendency of inquiry---Case against petitioner was decided under plea bargaining but his name was not removed from exit control list---Contention of authorities was that two inquiries were pending against petitioner, therefore, his name was not removed from exit control list---Validity---Such was not cogent reason to bypass or ignore constitutional provisions enshrined in Arts.4, 9 and 15 of the Constitution---Order passed by Authorities, declining to remove name of petitioner from exit control list was declared without lawful authority---High Court directed the Authorities to immediately remove name of petitioner from exit control list and further restrained the Authorities from placing any fetters on the movement of petitioner---Constitutional petition was allowed in said terms.

PLD 1997 Lah. 617; Malik Mushtaq Awan v. Government of Pakistan and others PLD 1999 Lah. 372; PLD 2005 Kar. 252 and PLD 2006 Kar. 530 ref.

Muhammad Amjad Pervaiz for Petitioner.

Rana Naeem Sarwar, Addl. Prosecutor-General for NAB.

2008 M L D 958

[Lahore]

Before Bashir A. Mujahid and Abdul Shakoor Paracha, JJ

GHULAM MURTAZA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1386 of 1999, and Murder Reference No.5 of 2000, heard on 6th April, 2004.

(a) Penal Code (XLV of 1860)---

----Ss.302 & 324/34---Appreciation of evidence---Ocular account coming from four prosecution witnesses, was corroborated by medical evidence on the record---Presence of two of said four witnesses was admitted. by accused---One of the prosecution witnesses was an independent witness as he was not related to either party---Said witness was a natural witness as he had a shop near the place of occurrence and had no motive to falsely implicate the accused---Said witness was also injured in the occurrence---One of the said prosecution witnesses though was related to deceased, but his presence at the spot was not denied by accused; he was not an interested witness because he had no motive to falsely implicate accused---Even otherwise mere relationship of the witness with deceased, would not necessarily render his account of the occurrence subject to doubt---Doctor who conducted post-mortem examination on dead body of deceased, had fully corroborated statements of the prosecution witnesses---Accused, who had taken a specific plea of self-defence in his statement under S.342 Cr.P.C., burden to prove same was on him---Plea of exercise of right of self-defence, had not been taken before the police during investigation---No witness from the locality had been produced before the Trial Court to prove said plea of self-defence---Accused had not given any explanation of his presence with pistol at the site---Story given by accused that deceased fired two shots with .12 bore gun at him but not a single pellet hit accused or any other person at the spot, was not acceptable---Trial Court, in circumstances had rightly rejected plea of self-defence taken by accused---Story of quarrel one month prior to the occurrence, between the two parties had been introduced only to create a motive against accused---Had there been any intention for murder of deceased, accused would not have waited for one month---Motive in the case being shrouded in mystery, accused deserved award of lesser punishment---Capital punishment of death, awarded to accused, was not called for---Conviction of accused under S.302 P.P.C. was maintained, but his sentence of death was altered to imprisonment for life---Remaining sentences of accused, were also maintained---Accused, however, was given benefit of S.382-B Cr.P.C.

Nazir and another v. The State PLD 1962 SC 269; Abdul Rashid v. The State 1997 SCMR 373 and Nawaz Khan and another v. Ghulam Shabbir and another 1995 SCMR 1007 ref.

(b) Penal Code (XLV of 1860)---

----Ss.302 & 324/34---Criminal Procedure Code (V of 1898), S.417(2)---Application for grant of special leave to appeal against order of acquittal---Trial Court had rightly disregarded recovery of pistol and revolver from acquitted co-accused on the ground that said weapons were not sent to the Forensic Science Laboratory because no crime empty was recovered from the place of occurrence---Two acquitted co-accused had been ascribed the role of Lalkara and ineffective firing, whereas third acquitted co-accused was attributed an injury caused by him to prosecution witness with Sota---According to doctor said injuries could be suffered due to fall on some hard substance---Trial Court, had given reasons for acquitting co-accused---No reason being available to interfere with the judgment of acquittal of co-accused, application for grant of special leave to appeal against acquittal order, filed by the complainant, was dismissed.

Ch. Abdul Rashid for Appellant.

Sardar Muhammad Latif Khan Khosa for the Complainant.

Hameed-ud-Din Bhatti for the State.

Date of hearing: 6th April, 2004.

2008 M L D 967

[Lahore]

Before Khusrshid Anwar Bhinder, J

MUHAMMAD AKBAR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 8064/B of 2007, decided on 11th March, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Bail, refusal of---Mala fide on the part of police, which had conducted defective investigation in order to save their colleagues, was proved beyond any shadow of doubt---Complainant, dissatisfied with the first investigation applied to the higher police hierarchy for change of investigation---Board was constituted under Art. 18(6) of the Police Order, 2002, on the application of complainant which was fully convinced that first investigation was defective one and ordered for change of investigation in which accused was found guilty---Accused was nominated as accused having played specific role by resorting to indiscriminate firing killing two innocent persons---Motive of killing said two persons had also been established on the record---Direct evidence was available against accused by the eye-witnesses who had seen the occurrence and belonged to the same locality---Accused, who had killed two innocent persons while resorting to indiscriminate firing did not deserve any leniency---Bail was refused in circumstances.

Muhammad Aslam and another v. The State through A. G. Punjab and another 1997 SCMR 251; Suba Khan v. Muhammad Ajmal and 2 others 2006 SCMR 66; Muhammad Amin alias Irfan and another v. The State 2004 SCMR 1560; Shoaib Mehmood Butt v. Iftikhar ul Haq and 3 others 1996 SCMR 1845; Baboo v. The State 1981 SCMR 849; Khuda Bukhsh and 6 others v. The State 1986 SCMR 1146; Shabbir Hussain v. The State PLD 1682 SC (AJ&K) 100 and Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68 rel.

Ch. Azhar Siddique Cheema for Petitioner.

Zulfiqar Ali Noon for the Complainant.

Naeem Tariq, DPG along with Noor Sultan, A.S.-I.

2008 M L D 971

[Lahore]

Before Muhammad Ahsan Bhoon, J

SHAKOOR AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2507-B of 2008, decided on 25th April, 2008.

Criminal Procedure Code (V of 1898)---

---S.497---Penal Code (XLV of 1860), Ss.302/324/34---Bail, grant of---Case of further inquiry---Accidental death---Act of negligence---Proof---Opinion of investigation officer---Scope---Occurrence wherein firing was made by accused in Mehndi ceremony and deceased sustained injuries accidentally but later on complainant tried to twist the story in his own way---During investigation it was concluded by Investigating Officer that accused was responsible for fire shot hitting the deceased and that too accidentally---Validity---Prima facie, it was mistake of an act of accused of F.I.R. wherein deceased and injured prosecution witness sustained injuries and application of S.302 P.P.C. required further inquiry---Opinion of police though was not binding upon court but at the same time was relevant circumstances were to be taken into consideration while deciding bail application when same also was corroborated by the statement of complainant as mentioned in the F.I.R.---Question whether injured died due to an act of negligence or accidentally murdered by the accused, would be determined after the trial---Bail was allowed to accused in circumstances.

Arshad Hussain Bhutta for Petitioner.

Asif Mehmood Cheema, D.P.G. for the State.

Sher Afghan Asadi for the Complainant.

2008 M L D 981

[Lahore]

Before Muhammad Ahsan Bhoon, J

AKMAL PERVAIZ alias PAIJI---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 1018, 1116, 1077 and Criminal Reference No.649 of 2004, heard on 9th April, 2008.

(a) Penal Code (XLV of 1860)---

----S.302 (b)/34---Appreciation of evidence---Benefit of doubt---Accused not named in F.I.R.---Dispatch of crime empty after arrest of accused in F.I.R. did not show that both the accused were seen by eyewitnesses at the time of alleged occurrence---Later on prosecution introduced a witness of Wajtakkar against both the accused---Trial Court convicted and sentenced both the accused for life imprisonment under S.302 (b) P.P.C.---Validity---If both the accused were seen by any of the eyewitnesses then their description must have been given in the F.I.R.---Even recovery of two empties of weapon of offence from street and later on matching of the same with the gun recovered at the behest of one of the accused did not advance prosecution case as the same were sent to Forensic Science Laboratory after the arrest of the accused---Complainant and an eyewitness though tried to improve their case by saying that both the accused were seen by them, yet the site plan would show that it was not possible for prosecution witnesses to see them outside the house from the place of their presence---Case was that of sifting grain from chaff and High Court disbelieved prosecution evidence and extended benefit of doubt to both the accused---Conviction and sentence awarded to both the accused was set aside and acquitted them of the charge---Appeal was allowed accordingly.

(b) Penal Code (XLV of 1860)---

----S.302 (b)/34---Appreciation of evidence---Prompt F.I.R.---Specific role and motive-Substitution of actual accused---Possibility---Description of both the accused was duly given in promptly lodged F.I.R. and eyewitnesses identified them during trial---Motive was explained by prosecution in evidence that accused were asking for Jaga Tax from deceased---Complainant and other witnesses had no motive to falsely implicate both the accused---Trial Court convicted and sentenced both the accused for life imprisonment under S.302 (b) P.P.C.---Validity---Complainant being real brother of deceased, he would not let off the real culprits-Substitution in such like cases was rare phenomenon, when admittedly there was no other enmity of deceased or complainant with accused or any body else----Recovery of weapon of offence although would not be relevant in presence of credible ocular account, yet recovery of Klashnikov from one accused which was found wedded with empties was effected and recovery of .7 M.M. rifle was also effected at the behest of other accused---Both the accused were saddled with the responsibility of occurrence in question and the same stood proved through prosecution evidence beyond shadow of doubt establishing their guilt---High Court declined to interfere with the conviction and sentence awarded to both the accused by Trial Court---Appeal was dismissed in circumstances.

Khuram Abbas Wahga for Appellant.

Syed Muhammad Imran Sherazi, DPG. Aamer Majid Rana and Muneeb Iqbal for the Complainant.

Date of hearing: 9th April, 2008.

2008 M L D 986

[Lahore]

Before M.A. Zafar, J

Syed SHAHEEN HAIDER---Petitioner

Versus

Mst. Syeda KANEEZ KUBRA and 3 others---Respondents

Writ Petition No. 3577 of 2008, decided on 11th April, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 22-B---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of case---Petitioner had called in question the proceedings pending before Justice of Peace under Ss.22-A and 22-B Cr.P.C. initiated by his mother/respondent for registration of case against him---Case of the petitioner was that parties were locked in civil litigation regarding the two documents i.e. Talaqnama and Tamleeqnama executed by predecessor-in-interest of the parties---Petitioner had submitted that reasonable apprehension existed in his mind that Justice of Peace would pass an order in routine directing the S.H.O. concerned to register a case, if application moved by the respondent would disclose the commission of a cognizable offence---Petitioner had further stated that Justice of Peace in mechanical manner called for report from S.H.O. Police Station concerned marking the presence of the clerk of the counsel, which, on the face of it, was not warranted by law and same gave an impression that clerk of the counsel argued the case; that clerk of the counsel was neither authorized nor entitled to appear in the judicial proceedings and that Justice of Peace was not justified in marking presence of the clerk of the counsel and entertaining and registering application under Ss.22-A & 22-B Cr.P.C. and thereafter issuing necessary process by way of calling report and reply of S.H.O. concerned---Effect---High Court desired that Justice of Peace while passing final order would hear petitioner and would also examine the documents to be filed by him in support of that case---Apprehension of the petitioner at that stage was pre-mature and did not call for any interference by the High Court in its constitutional jurisdiction.

Abdul Sami Khawaja for Petitioner.

2008 M L D 989

[Lahore]

Before Muhammad Jehangir Arshad, J

RASOOL KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 6-B of 2007, decided on 20th February, 2007.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Juvenile Justice System Ordinance (XXII of 2000), Preamble---Pre-arrest bail, refusal of---Counsel for accused had failed to point out any mala fide on the part of prosecution/complainant in the presence of statement of the victim explicitly involving accused in the commission of unnatural offence with him---Accused was not entitled to concession of pre-arrest bail---Question of protection under Juvenile Justice System Ordinance, 2000 could only be considered at the trial or for the purpose of post-arrest bail and not for considering pre-arrest bail application---Ad interim pre-arrest bail earlier granted to accused was recalled.

Muhammad Ehsaan Alvi for Petitioner.

Sagheer Ahmad Bhatti for the Complainant.

Zahoor Ahmad Chughtai and Muhammad Akram, A.S.-I. for the State.

2008 M L D 999

[Lahore]

Before Muhammad Akram Qureshi, J

MUHAMMAD MUNIR and 4 others---Petitioners

Versus

THE STATE and another---Respondents

Criminal Revision No. 106 of 2008, decided on 7th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 540---Police Order (22 of 2002), Art.18(6)---Summoning of retired S.P. as court witness---Transfer of investigation---Petitioners/accused persons had assailed order of the Trial Court whereby retired S.P. was summoned as court witness---Said S.P. had not himself investigated the case; nor had recorded the statement of any person during investigation nor had collected any piece of evidence during the time when investigation remained with him---Investigation was not entrusted to said S.P. on the recommendation of the Board of S.Ps. constituted under Art.18(6) of the Police Order, 2002, but he was simply directed by D.I.-G. (Investigation) to supervise investigation of the case--Superintendent of Police was summoned by the Trial Court on the behest of complainant because during investigation S.P. held the petitioners guilty---Under Art.18(6) of the Police Order, 2002, order of investigation of the case could only be transferred by adopting procedure laid down in said Article---D.I.-G. had no jurisdiction to pass an order. for change of investigation of case---Head of investigation in a general police area could order change investigation on recommendation of the Board of S.Ps. constituted under the Police Order, 2002---In the present case D.I.G., on application of complainant party, without adopting legal course, entrusted investigation to said S.P.; his powers being without any legal force of the Police Order, 2002, were illegal--Consequent to, said orders the investigation having been conducted by the S.P. was also illegal---Said S.P. could have been examined as Court witness, but counsel for complainant had not been able to show reason as to why he was not summoned as such--By summoning the S.P., the Trial Court had put prosecution in a position of advantage vis-a-vis the defence---Certain lacunas of the prosecution had to be filled if the S.P. was allowed to be examined---Trial Court had not properly exercised. its powers---Evidence of S.P. was not expedient for the ends of justice; he could not have been summoned under provisions of S.540, Cr.P.C.---Trial Court having not properly exercised its jurisdiction under S.540 Cr.P.C., impugned order was illegal, improper and incorrect--Said order was set aside, in circumstances.

Khizer Hayat and others v. Inspector-General of Police Punjab Lahore PLD 2005 Lah. 470; Muhammad Bahsir v. S.H.O. PLD 2007 SC 539 and Muhammad Ashraf v. Zafar Mahmood alias. Master Khaki Zaman and others PLD 1967 Lah. 1045 ref.

Syed Nisar Ali Shah for Petitioners.

Miss Farzana Shehzad, Deputy Prosecutor General for the State.

Ch. Muhammad Siddique, for the Complainant.

2008 M L D 1007

[Lahore]

Before Abdul Shakoor Paracha and M.A. Zafar, JJ

SAFDAR ABBAS and 4 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.1843 of 2006, and 43 of 2007, Criminal Revision No.48 of 2007 and Murder Reference No.102 heard on 11th March, 2008.

(a) Penal Code (XLV of 1860)---

----Ss. 302(b), 148 & 149---Appreciation. of evidence---Case of promptly lodged F.I.R.---Motive as alleged by the prosecution stood proved---Both prosecution witnesses had fully supported the case of prosecution-Said witnesses though were real brothers of the deceased, but by no stretch of imagination could be termed as interested or inimical witnesses---Mere relationship of witnesses with the deceased was no criteria to discard their testimony, which was trustworthy and had come from an unimpeachable source---Real brother of deceased could not have left the actual culprits and implicate falsely the, innocent persons---Despite lengthy cross-examination by the defence, intrinsic value of evidence of both the eye-witnesses could not be shaken---Presence of eye-witnesses at the spot was quite natural---Duration given by the Doctor between the death and post-mortem coincided with the time of occurrence alleged by the prosecution---Negative report of Fire-arm Expert was of no avail to the defence for the reason that only the recovery of fire-arm was a corroborative piece of evidence and the law was that corroboration of Expert report with occurrence was not a rule, but a matter of prudence and same was also applied in a case where the direct evidence was not of the standard which could be considered sufficient for conviction---Motive and ocular account was fully corroborated with medical evidence---Prosecution had succeeded in proving its case against one of accused persons beyond any reasonable doubt---No mitigating circumstance was available in favour of said accused as he fired fatal shot which caused the death of deceased---Conviction and sentence recorded against the accused by the Trial Court was maintained in toto---Death sentence awarded was confirmed.

(b) Penal Code (XLV of 1860)---

----Ss. 302(b), 148 & 149---Appreciation of evidence---Sentence, reduction in---Co-accused had been sentenced to imprisonment for life by the Trial Court---Injuries attributed to said accused persons by the eye-witnesses were fully corroborated from the medical evidence---Three co-accused had actually participated in the occurrence and the prosecution had proved its case against said one co-accused beyond any reasonable doubt---Conviction and sentence awarded to one co-accused under S.302(b) P.P.C., though was maintained, but his death sentence was converted into imprisonment for life; however, his conviction and sentence recorded under S.148 P.P.C. by the Trial Court was maintained in toto---Conviction and sentence of two co-accused as ordered by the Trial Court by impugned judgment was maintained in full.

(c) Penal Code (XLV of 1860)---

----Ss. 302(b), 148 & 149---Appreciation of evidence---Benefit of doubt---Co'-accused was not named in the F.I.R., but along with two others was involved by the complainant by making supplementary statement, which statement was recorded after 15 days of the occurrence on account of delay---Veracity of said supplementary statement had become doubtful---By extending benefit of doubt, said co-accused was acquitted of the charge---Appeal to the extent of said co-accused was accepted.

(d) Criminal Procedure Code (V of 1898)---

----Ss. 154, 156 & 161---"First Information Report" and "'supplementary statement"---Distinction---First Information Report was a document which was entered on the complaint of the informant into a book, maintained at the Police Station under S.154 Cr.P.C.---First Information Report was signed/thumb marked by the informant, while the supplementary statement was recorded under S.161 Cr.P.C. and was not signed---F.I.R. brings the law into motion, the police under S.156 Cr.P.C. starts investigation of the case---Any statement or further statement of the first informant recorded during the investigation by the police would neither be equated with First Information Report nor read as part of it; at the most it could be treated like a statement of a witness recorded under S.161 Cr.P.C.

(e) Criminal Procedure Code (V of 1898)---

----S. 417---Penal Code (XLV of 1860), Ss.302(b), 148 & 149---Appeal against acquittal---Reasoning given by the Trial Court for acquittal of co-accused that they were found innocent during the course of investigation and no weapon of offence was recovered from them, was not open to any valid exception---Finding of the police though was not binding upon the court, but it carried some weight when no other evidence was available to connect accused with the commission of offence---Superior Courts, while dealing with an appeal against acquittal, had observed that court could interfere only if the circler of acquittal was based on misreading, non-appraisal of evidence or was speculative, artificial, arbitrary and foolish, which was not the position in the present case-1-Appeal against acquittal being meritless was dismissed.

(f) Penal Code (XLV of 1860)---

----Ss.302(b), 148 & 149---Criminal Procedure Code (V of 1898), S.439---Sentence, enhancement of---Complainant had sought enhancement of sentence of accused persons---Reasoning given by the Trial Court that no specific role was attributed to accused persons and role of general firing on the victim at the spot had been attributed to them, could not be said to be perverse or illegal---Petition by complainant for enhancement of sentence of accused, was dismissed.

Ch. Muhammad Hussain Maiken for Appellants.

Ch. Muhammad Aslam Sindhu Additional P.-G. for the State.

Aurang Zaib Marl for the Complainant.

Date of nearing: 11th March, 2008.

2008 M L D 1022

[Lahore]

Before S. Ali Hassan Rizvi, J

MUHAMMAD ARIF and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 368-B of 2008, decided on 24th March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.365-B---Bail, grant of---Inordinate delay of one month and eight days in lodging of F.I.R---Abductee was returned through Punchayat---Accused were not the principal accused for the commission of offence of zina---Accused were in jail and no more required to the police for investigation purpose---Accused could not be kept in jail for an indefinite period till the final decision of the case---Accused were admitted to bail, in circumstances.

Syed Muhammad Aurangzeb Gilani for Petitioners.

Ch. Zulfiqar Ali Sidhu, APG with Shabir Hussain A.S.-I.

2008 M L D 1024

[Lahore]

Before M.A. Zafar, J

KHALID---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1260-B of 2008, decided on 29th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.395---Bail, grant of---Further inquiry---Accused was not named in F.I.R. as an accused, but he was found to be overpowered by the unknown accused while committing dacoity---Veracity of supplementary statement made after three days; changing the whole story and implicating accused and others would be determined at the time of trial by the Trial Court---Recovery of R.1500, would not connect accused with the commission of offence---Accused was in jail for the last more than 10 months and no more was required by police for the purpose of investigation---Challan had already been submitted in the Trial Court---Accused was servant of the complainant and had no previous record and his participation in the occurrence was a matter of further inquiry within the meaning of S.497(2), Cr.P.C.---Accused was allowed bail in circumstances.

Arshad Ali Chouhan for Petitioner.

Farzana Khan, DPG along with M. Nazir, S.-I. with record.

2008 M L D 1028

[Lahore]

Before Khurshid Anwar Bhinder; J

MUHAMMAD ASHRAF---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2648-B of 2008, decided on 17th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.406---Bail, grant of---Unexplained delay of two months in lodging F.I.R. had cast doubt on the prosecution case and possibility of deliberations could not be ruled out---Had the occurrence genuinely taken place then there was no reason for the complainant to wait for two months and then to lodge the F.I.R---Complaint should have been immediately lodged to the police for the recovery of his vehicle, but he did not do so---Co-accused against whom the allegation was that accused had sold vehicle in question to him, was equally liable to be tried under S.406 P.P.C., and he had already been granted bail by the Trial Court---Rule of consistency demanded that accused should also be granted bail---Section 406 P.P.C. was not attracted to the facts and circumstances of the case because no direct evidence was available against accused connecting him with the commission of said offence---Accused was admitted to bail, in circumstances.

S.M. Hasnain for Petitioner.

Shafqatullah Butt, DPG for the State with Muhammad Iqbal A.S.-I.

2008 M L D 1030

[Lahore]

Before Kazim Ali Malik, J

HAJI AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 150-CB of 2007, decided on 23rd April, 2008.

(a) Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Grant of pre-arrest and after arrest bail---Considerations for---Pre-arrest bail was an extraordinary relief, whereas the post-arrest bail was an ordinary relief---Considerations for pre-arrest bail and after arrest bail were altogether different---Any good ground for post-arrest bail could be no ground for pre-arrest---While seeking pre-arrest bail it was duty of accused to establish and prove mala fide on the part of the Investigating Agency or the complainant---Trial Court was required to examine the plea of mala fide put forward by accused after having made tentative assessment of the material laid down before him and that exercise should not have been postponed till the inception of trial and recording of evidence---Ground that accused was no more required for investigation purpose, was a good ground for post-arrest bail only.

(b) Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, cancellation of---Offence with which accused stood charged though did not fall within the prohibitory clause of S.497 Cr.P.C., but that was no ground for anticipatory bail---Accused, in bailable offences, could claim bail as a matter of right, whereas in non-bailable offences the bail was a concession/grace/favour by the court in the light of legal principle ---Offence not falling under the prohibitory clause of S.497 Cr.P.C., did not provide a basis to allow extraordinary relief of anticipatory bail to accused---No hard and fast rule could be framed in that regard and it depended upon the facts of each and every case---No ground for extraordinary relief of anticipatory bail, in the present case, was available to accused and the Trial Court had treated the grounds for post-arrest bail as grounds for pre-arrest bail against recognized and established principles of law---Accused though was present in the Court during the course of argument, but he slipped away at the time of pronouncement of order---Such conduct, rather misconduct on the part of accused, had made himself disentitled to discretionary relief of bail---Bail granting order of the Trial Court, was set aside, in circumstances.

Talib Hussain v. State 2007 PCr.LJ 1064; Askari Leasing Limited v. Rana Muhammad Asif and another 2005 PCr.LJ 950; Liaqat Hussain v. State 2006 MLD 166; Muzaffar Iqbal v. Muhammad Imran Aziz and others 200,4 SCMR 231; Suba Khan v. Muhammad Ajmal and 2 others 2006 SCMR 66; Talib Hussain v. The State 2007 PCr.LJ 1064; Major Anwar ul Haq v. The State PLD 2005 Lahore 607; Muhammad Ayub v. Rana Abdul Rehman and another 2006 YLR 1852; Qasim Khan v. Sharafat Khan and another 2003 YLR 2910 and Tariq Bashir and 5 others v. The State PLD 1996 SC 34 ref.

Khawaja Qaisar Butt for Petitioner.

Mian Bashir Ahmad Bhatti, DPG.

Mahboob Ahmad, S.H.O. Police Station, City Alipur.

2008 M L D 1044

[Lahore]

Before Muhammad Ahsan Bhoon, J

Rana IMRAN JAMEEL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2992-B of 2008, decided on 29th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.365-B, 376 & 511---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.11---Bail, grant of---During course of investigation there being no allegation of Zina, offence under S.365-B, P.P.C. was deleted---Investigating Officer had concluded that during the course of investigation he reached at the conclusion that both alleged victims were not abducted on gunpoint rather they both accompanied accused with their free consent on a motorcycle and they kept on roaming around---Co-accused was declared innocent, whereas accused was challaned under Ss.376 & 511, P.P.C. read with S.11 of Prohibition of (Enforcement of Hadd) Order, 1979---No allegation of rape or zina, being on the record against any accused, provisions of law in respect of rape or zina were not applicable to the facts and circumstances of the case---Prima facie case fell within purview of S.496-A, P.P.C. for which the punishment provided was seven years which did not fall within prohibition contained in subsection (1) of S.497, Cr.P.C.---No weapon of offence as alleged by the complainant was recovered from accused during course of investigation---Accused was behind the bars since his arrest and was no more required for the purpose of investigation---Bail was granted to accused, in circumstances.

Malik Amjad Pervaiz for Petitioner.

Asif Mehmood Cheema, DPG with Muhammad Hussain, S.-I. Complainant in person.

2008 M L D 1053

[Lahore]

Before Muhammad Ahsan Bhoon, J

ASGHAR ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No. 93 of 2008, decided on 6th May, 2008.

Criminal Procedure Code (V of 1898)---

----S 540---Penal Code (XLV of 1860), S.302/34---Summoning Police Officer as court witness---Application for---Petitioner/accused on closure of prosecution evidence filed application under S.540, Cr.P.C. for summoning a Police Inspector as court witness who had conducted second investigation in the case---Said application had been dismissed by the Trial Court---Validity---Police Inspector sought to be summoned, though had conducted investigation of the case, but he was not cited by the prosecution as witness in the calendar of witnesses, however, during the trial it surfaced in the evidence that he had conducted the investigation and collected the material and on the basis of the same formed his opinion---Evidence of said Police Inspector was essential to do complete justice---Allowing revision, impugned order passed by the Trial Court was set aside and the Trial Court was directed to call/ summon said Police Inspector as court witness and record his evidence after providing opportunity to both the parties to cross-examine him; and thereafter to proceed in accordance with law.

The State v. Muhammad Yaqoob and others 2001 SCMR 308 ref.

Petitioner in person.

Malik Mubarak Aii, for the Complainant.

Asif Mahmood Cheema, DPG for the State.

2008 M L D 1058

[Lahore]

Before Hasnat Ahmad Khan, J

NADIR and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 4849-B of 2007, decided on 18th July, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.440/34---Bail, grant of---Further inquiry---No date or time of occurrence had been mentioned in the F.I.R.---Occurrence was an unwitnessed event as nobody had been cited in the F.I.R. as witness of the crime offence allegedly committed by accused persons and same did not fall within the prohibitory clause---Accused persons had never been convicted in earlier cases pending against them---One of accused persons was an old man of 60/65 years---Police Officer present in the court had admitted that during the investigation no incriminating articles were recovered at the instance of accused---Case of further inquiry had been made out in favour of accused---Challan had already been submitted before the court---Accused were no more required for investigation purposes---No useful purpose would be served by detaining accused any more in the jail---In cases falling outside the prohibitory clause of S.497, Cr.P.C., grant of bail was a rule while refusal thereof was an exception---Accused were admitted to bail, in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

Ch. M. Lehrasib Khan Gondal for Petitioners.

Rana Iqbal Hussain, D.P.G. for the State.

2008 M L D 1060

[Lahore]

Before Fazal-e-Miran Chauhan, J

MUSHTAQ AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 4926-B of 2007, decided on 24th September 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.489-F---Bail, grant of---Further inquiry---Accused was behind the bars since long and no useful purpose would be served by detaining him in jail for an indefinite period---Challan had been submitted in the court, but no progress had been made---Offence with which accused was charged entailed punishment of three years, which did not fall within the prohibitory clause of S.497, Cr.P.C.---Case of accused fell within the ambit of further inquiry---Accused was allowed bail, in circumstances.

Syed Sajid Ali Bukhari for Petitioner.

2008 M L D 1064

[Lahore]

Before Muhammad Ahsan Bhoon, J

SHEHZAD KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 464-J of 2003, heard on 14th April, 2008.

Penal Code (XLV of 1860)---

----S. 302(b)---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Unseen and blind occurrence---Dead body was found in. an open place---Complainant in F.I.R. stated that he had no enmity with any body nor expressed his suspicion against any culprit to commit murder of deceased---Evidence of last seen had been furnished by the witness who was real paternal cousin of deceased and his statement was not corroborated by any other person---Statements of both the prosecution witnesses about extra judicial confession wad not confidence-inspiring---Joint extra judicial confession, was not admissible in evidence and no conviction could be based on that score alone in case of capital punishment, unless same was corroborated by independent and confidence-inspiring evidence---Extra judicial confession was always considered very weak type of evidence---Both prosecution witnesses being related inter se as well as to the deceased, their deposition was not above board and could not be relied upon in circumstances of the case---Alleged recovery of rope effected at the behest of accused was of no significance because same was in violation of provision of S.103 Cr.P.C.---Prosecution had badly failed to prove the recovery of rope---Motive part of the prosecution story seemed to be an afterthought and did not further the prosecution case---Prosecution having failed to prove the guilt of accused beyond any reasonable doubt, conviction and sentence awarded to accused vide impugned judgment passed by the Trial Court were set aside and accused were acquitted and set at liberty.

Kamran Khan Niazi for Appellant.

Syed Muhammad Imran Sherazi, D.P.G. for the State.

Date of hearing: 14th April, 2008.

2008 M L D 1072

[Lahore]

Before M.A. Zafar, J

KHALID---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.396-M of 2008, decided on 13th March, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 497---Penal Code (XLV of 1860), Ss.395 & 412---Petition against including section of Penal Code in the bail granting order when same was not inserted in the F.I.R.---Grievance of petitioner/ accused was that section 412, P.P.C. was not included in the F.I.R., but Jail Authorities were not releasing petitioner on the pretext that in the warrants received by them besides S.395, P.P.C., S.412, P.P.C. was also included in the said warrant---Despite order of the High Court, petitioner had not been released by the Superintendent of Jail ostensibly on the ground that remand order available in jail record also mentioned S.412, P.P.C.---Validity---When accused had been granted bail in main case, any minor offence, not included in bail granting order, would not affect the grant of bail because whenever a court ordered that an accused in a particular F.I.R. be released on bail, order necessarily pertained to that particular F.I.R. in its entirety---Once a person had been granted bail by a court and ordered to be released forthwith, his further detention by the Jail Authorities would actually be illegal detention for which citizens would be perfectly justified to sue for damages---Specification of the penal provisions in the F.I.R. or any related investigation paper would not control the contents of the narration of the F.I.R. and the substance thereof---Jail Authorities were directed by High Court to be careful in the matter in that regard, because once a court admitted a person to bail then that person would cease to be in the custody of the Jail Authorities and was in the custodia legis of the court.

Arshad Ali Chohan for Petitioner.

Mrs. Farzana Khan, D.P.G. along with Sadiq, A.S.-I. with record.

2008 M L D 1076

[Lahore]

Before Mazhar Hussain Minhas, J

GHULAM AKBAR---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Nos. 569-B and 374-B of 2008, decided on 16th April, 2008.

(a) Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-F(ii), 382/148/149---Bail, grant of---Accused was allegedly armed with a klashinkov at the time of occurrence, but during investigation no weapon had been recovered from him---Stolen amount or mobile phone had also not been recovered from him---Accused, was also involved in another criminal case, but in that case he had been discharged by the Magistrate--Accused was admitted to bail, in circumstances.

(b) Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-H(ii) & 382/148/149---Bail, refusal of---No weapon or looted amount, had been recovered from co-accused, but during the occurrence, he armed with Kalashnikov, kept standing at the door of the shop of complainant and threatened the complainant---Co-accused was also involved in another criminal case---Co-accused was not entitled to concession of bail in circumstances.

Malik Muhammad Tariq Rajwana for Petitioner (in Crl. M. No. 569-B of 2008).

Mrs. Saeeda Asif for Petitioner (in Cr. M. No. 374-B of 2008).

Ch. Sarfraz Ahmad Zia DPG for the State (in both cases).

Qari Abdul Karim Shahab for the Complainant (in both cases).

Khuda Bakhsh, A.S.-I. with record.

2008 M L D 1079

[Lahore]

Before M.A. Zafar, J

MUHAMMAD ARSHAD and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 691-B of 2008, decided on 15th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)-Penal Code (XLV of 1860), Ss.395 & 412/34---Bail, grant of---Further inquiry---Accused persons were no among the persons who had committed dacoity and no such allegation was made against them either in the F.I.R. or in the supplementary statements as they were alleged only to have received stolen property---For involvement of accused in the offence, prosecution had to mainly prove that they knew or had reason to believe that the property was stolen property---Manner in which recovery of gold ornaments had been effected, also was a matter of further inquiry within the meaning of S.497(2), Cr.P.C. as prosecution's own case in the supplementary statement was that gold ornaments were converted into gold bars by two other accused named in the supplementary statement---Offences of dacoity under S.395, P.P.C. as well as dishonestly receiving stolen property in the commission of a dacoity in S.412, P.P.C., though did not find mention in the present table given in S.345(1), Cr.P.C. and were not compoundable, but in the present case parties had themselves voluntarily forgotten and forgiven the alleged crime and had entered into an outside court settlement---Said settlement could be considered as a ground for the grant of bail in the interest of justice and equity---Judicial notice of a compromise having taken place could be taken even in offences which were not compoundable---As no allegation was of committing Jacoity by accused persons and the charge against them was about recovery recovering stolen property in a dacoity, the guilt of accused persons was a matter of further inquiry within the meaning of S.497(2), Cr.P.C.---Challan had already been sent in the court for trial---No useful purpose would be served by keeping accused in jail as they were no more required to the police for the purpose of investigation---Accused was released on bail in circumstances.

Farooque Ahmed v. The State 2007 PCr.LJ 345; Mazhar Iqbal and others v. The State 2004 PCr.LJ 923; Muhammad Akram v. The State 1995 MLD 1826 and Mst. Mussarat Elahi alias Bibi v. The State 1997 PCr.LJ 1193 rel.

Ch. Muhammad Aslam Zia for Petitioners.

Farzana Khan, D.P.-G.

Nemat Ullah, A.S.-I. with record.

2008 M L D 1088

[Lahore]

Before Saif-ur-Rehman, J

MUHAMMAD SADIQ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2771-B of 2007, decided on 25the March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324/34---Bail, refusal of---Complainant had alleged in the F.I.R that he was removed by the accused from his Tubewell where he was sleeping---Act of removing the complainant on gun-point from his Tubewell to another place and robbing him of the articles by effectively firing at him, had indicated the desperate temperament of accused---Punishment for the offence in question certainly fell under prohibitory clause of S.497 Cr.P.C.---Bail petition was dismissed.

PLD 2004 SC 477; Muhammad Arshad v. The State 2005 MLD 823 and Zahoor Illahi and another v. Shahzad Ahmad and others 2007 PCr.LJ 1056 held not applicable.

Ch. Khalid Mahmood Basra and Malik Muhammad Ahsan Karol for Petitioners.

Ashfaq Ahmad Malik, DPG Assisted by Muzaffar Hussain S.-I. with record.

Ch. Muhammad Ali for the Complainant.

2008 M L D 1095

[Lahore]

Before Syed Sajjad Hussain Shah, J

SAEED AHMED---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1 in Criminal Appeal No. 213 of 2007, decided on 11th March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss.302, 201 & 109/34---Suspension of sentence---Application for---Accused was convicted and sentenced to five years out of which he had already served out more than a year---No likelihood was of the fixation of appeal in the near future---Allowing application, sentence awarded to accused was suspended and accused was directed to be released on bail.

Muhammad Shoaib Khan Buzdar for Petitioner.

Mumtaz Hussain Awan, Advocate for Deputy Prosecutor General.

2008 M L D 1099

[Lahore]

Before Hasnat Ahmad Khan and M.A. Zafar, JJ

MUHAMMAD MUSHTAQ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 258-J and Murder Reference 503 of 2002, decided on 14th April, 2008.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Case of two versions---Deceased, according to the prosecution, was gunned down by accused, while defence version was that deceased became prey of the bullet of riffle of accused which accidentally went off when both of them, who were close friends were having a chat---Out of three prosecution witnesses, one was quite an independent witness as he was neither related to the complainant party nor was he inimical to accused---Before the murder of deceased, none of the eye-witnesses had any enmity whatsoever with accused, they, in circumstances, had got no motive to falsely implicate accused on the charge of murder which entailed the sentence of death---All eye-witnesses corroborated each other on the material aspects of the case--Ocular evidence was trustworthy, confidence-inspiring and straightforward, nothing was on record on the basis of which their evidence could be termed as unnatural---All witnesses were cross-examined at length, but they remained steadfast to their stance and their evidence remained unshattered---Ocular evidence got full support from the evidence of the Doctor who had conducted autopsy on the dead body of deceased---Prosecution story was further strengthened by the recovery of rifle---Even the causing of the fire-arm injury to deceased was not denied by accused---Prosecution's evidence was more trustworthy than that of defence as defence version did not fit in the scheme of things---Defence version was also liable to be discarded for the reason that during cross-examination, accused put forward self-contradictory suggestions to the eye-witnesses---Defence version was nothing, but a cock and bull story and on the contrary, prosecution proved its case to the hilt beyond any shadow of doubt---Prosecution having proved its case through unimpeachable and trustworthy evidence, conviction awarded to accused by the Trial Court was maintained---Some mitigating and extenuating circumstances however, were present in the case, to justify the commutation of the death sentence of accused into one of imprisonment for life---No deep-rooted enmity was between the parties; accused was publicly insulted by deceased Who levelled allegation of theft against accused, said fact alone had created 'a mitigating circumstance, in favour of accused---Accused did not repeat the fire---Maximum sentence of death awarded to accused for the murder of deceased being quite harsh, same was commuted into imprisonment for life---Benefit of S.382-B Cr.P.C. was also given to accused.

Zar Wali Shah v. The State 1991 SCMR 1590; Aziz Masih v. The State 1991 PCr.LJ 419; Abdul Sattar alias Babu and others v. The State 1979 PCr.LJ 80; Abdul Karim v. The State 1980 PCr.LJ 108; Allah Rakha v. The State 1988 PCr.LJ 2311; Muhammad Arshad and 2 others v. The State PLD 1996 SC 122 and Muhammad Hussain v. The State 2006 PCr.LJ 1463 rel.

Abdul Majeed Chishti for Appellant.

Syed Faisal Raza Bokhari, D.P.G. for the State.

Date of hearing: 19th March, 2008.

2008 M L D 1109

[Lahore]

Before Mazhar Hussain Minhas, J

KHADIM HUSSAIN---Petitioner

Versus

PUNJAB PROVINCE SERVICE through District Collector, Sahiwal and 3 others---Respondents

Civil Revision No.534-D of 2000, decided on 14th March, 2008.

Specific Relief Act (I of 1877)---

----S. 42---Suit for declaration---Plaintiff filed suit for declaration to the effect that trees were standing on both sides of District Council road and 30 minutes water was sanctioned for said trees---Plaintiff alleged that authorities passed ex parte orders whereby they, curtailed the duration of water from 30 minutes to 15 minutes and water was sanctioned in favour of the defendant---Plaintiff further averred in the plaint that said orders were liable to be set aside being unlawful, collusive and without notice---Suit had concurrently been decreed by the Trial Court and Appellate Court---Claim of defendant was that in the year 1962, a settlement was reached between his father and other co-sharers of Mauga in question according to which his father was made entitled to get water for one hour to irrigate his land, if he would allow construction of Khal through his land---Defendant had asserted that in view of that settlement water for irrigation of the road trees was diminished by 15 minutes and water for one hour was sanctioned in favour of his father---Validity---Evidence on record had established that Warabandi had been arbitrarily changed by authorities and share of plaintiff had been decreased by fifteen minutes behind his back---Orders passed by authorities were hit by the principle of audi alteram partem and were void and ineffective upon the rights of plaintiff---Concurrent judgments and decrees passed by the Trial Court and Appellate Court below did not suffer from any illegality or material irregularity---Revision having no merits, was dismissed.

Tariq Muhammad Iqbal Chaudhary for Petitioner.

Ch. Muhammad Rafique for Respondent No.2 assisted by Malik Muhammad Qasim Khan, A.A.-G.

Date of hearing: 12th March, 2008.

2008 M L D 1114

[Lahore]

Before Zafar Iqbal Chaudhry, J

ABD-E-MOMIN THAKUR---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.2901-B of 2008, decided on 9th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.489-F---Bail, refusal of---Plea with regard to payment made by accused, effected through bank transaction, was not established from the record, because the statement submitted by accused was much prior to issuance of disputed cheque which had been properly investigated by the Investigating Officer from the bank record---Regarding the fact that the disputed cheque was obtained forcibly, accused had not made any complaint in that behalf---No ground was made out for extending the concession of post-arrest bail in favour of accused---Bail was declined.

Syed Baqir Ali Naqvi for Petitioner.

Mian Ismat Ullah, DPG for the State with Muhammad Shafi, S.-I. with record.

C.M. Sarwar for the Complainant.

2008 M L D 1123

[Lahore]

Before Muhammad Ahsan Bhoon, J

WALI MUHAMMAD and 7 others---Petitioners

Versus

THE STATE and 2 others---Respondents

Criminal Revision No. 569 of 2007, decided on 24th April, 2008.

(a) Penal Code (XLV of 1860)---

----S. 302---Criminal Procedure Code (V of 1898), Ss. 345, 498, & 512---Compounding of offence---Duty of Court---Absence of accused---Offence was committed in the year, 1982, Trial Court declared both the accused as proclaimed offenders and separated their case under S.512 Cr.P.C.---Both the accused entered into compromise with the legal heirs of deceased and application under S.345 (6) Cr.P.C. filed by the legal heirs for compounding of offence was dismissed by Trial Court---Validity---Court at all levels without any legal impediment, while deciding case on merits in regular proceedings, 'could consider compromise of an offender with victim of legal heirs---No regular proceedings were pending before any court of law, and case of both the absconding accused was separated under S.512 Cr.P.C.---It could not be presumed that any proceedings before any court of law were pending which could culminate into compromise between the offender and the heirs of deceased or victim---Legislature in its wisdom had enacted the provisions of S.498 Cr.P.C. to save an accused from undue and uncalled for humiliation---If compromise in cases like the present one was allowed, that would frustrate the beneficial purpose of enactment---Court was to satisfy itself that compromise arrived at between the parties was not tainted with pressure, coercion, undue influence, blackmail, extortion or similar other infirmities---Only such compromise would qualify for . acceptance which was above any 'blemish either mild or strong---High Court in exercise of revisional jurisdiction declined to interfere with the order passed by Trial Court---Revision was dismissed in circumstances.

PLD 2006 SC 53; PLD 2006 Pesh. 82; 1998 MLD 1 and 1994 MLD 1 distinguished.

(b) Criminal Procedure Code (V of 1898)---

----S.345---Compounding of offence---Beneficial provision of law---Object and scope---Provisions of S.345 Cr.P.C. are beneficial and their construction and interpretation must be liberal but at the same time Court must be mindful of the fact that compromise is genuine and voluntarily arrived at between the parties---Object of compounding of offence is to promote harmony and brotherhood among inhabitants of State.

Malik Qamar Afzal for Petitioners.

Asif Mahmoodd Cheema, DPG for the State.

2008 M L D 1126

[Lahore]

Before Tariq Shamim and Muhammad Ashraf Bhatti, JJ

AHMAD NAWAZ and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 1221 of 2002, heard on 30th April, 2008.

(a) Penal Code (XLV of 1860)---

----S.302 (b)---Appreciation of evidence---Conflict in medical and ocular evidence---Improvements in evidence---Related witnesses---Opinion of investigating officer---Accused persons were convicted and sentenced to death for committing murder---Validity---Medical evidence was in direct conflict with eyewitness account put forth by witnesses---During investigation which was conducted by senior police officer i.e. Senior Superintendent of Police, accused persons were declared innocent---High Court concluded that occurrence was not witnessed by eye-witnesses who made dishonest improvements in their statements to cover up contradictions in medical evidence and eye-witness account---Witnesses were not only inimical towards accused persons but were also closely related to deceased and related inter se and they had a motive to falsely implicate accused Corroboration from independent source was required, which was not forthcoming from any independent source---Prosecution failed to bring home guilt of accused persons beyond any reasonable doubt---High Court in exercise of appellate jurisdiction set aside conviction and sentence awarded to accused persons and they' were acquitted of the charge---Appeal was allowed in circumstances.

(b) Penal Code (XLV of 1860)---

----S.302 (b)---Appreciation of evidence---Non-recovery of empties---Gun was recovered from accused but no empty was recovered from the place of ' occurrence---Effect---Such recovery of gun did not in any manner further the prosecution case as no empty was recovered from the place of occurrence and consequently none was wedded or matched with weapon.

Sardar Khurram Latif Khan Khosa for Appellants.

Sahibzada M.A. Amin Mian, Addl. P.-G. for the State.

Date of hearing: 30th April, 2008.

2008 M L D 1313

[Lahore]

Before Asif Saeed Khan Khosa, J

AKHLAQ AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 356-J and Criminal Revision No. 984 of 2002, heard on 18th February, 2004.

Penal Code (XLV of 1860)---

----S. 302(b)-Appreciation of evidence---Occurrence had taken place during night and the electric bulb claimed by the eye-witnesses to be a source of light at the spot had not been taken into possession by the Investigating Officer---F.I.R. had been lodged after two days of the occurrence without any plausible explanation for such an inordinate delay by the complainant party---Eye-witnesses were not only closely related to deceased but were also chance witnesses who had not given any reason for their presence at the scene of crime at the relevant time---Eye-witnesses had made contradictory statements and their credibility and veracity stood irretrievably shaken---Due to background of pitched enmity between the parties false implication of accused by the complainant party could not be ruled out of consideration---No crime empty having been recovered from the place of occurrence pistol recovered from the possession of accused could not be connected with the offence---Presence of eye-witnesses at the scene of occurrence being doubtful, medical evidence could not identify the culprit perpetrating the offence---Medical evidence, even otherwise, had contradicted the ocular testimony---Eye-witnesses appeared to have been planted by the police at a subsequent stage---Accused was acquitted in circumstances.

Mrs. Erum Sajjad Gul, (Defence Counsel) assisted by Muhammad Farooq-ul-Hassan for Appellant.

Mirza Abdullah Baig for the State.

Akhtar Masood Khan for the Complainant.

Date of hearing: 18th February, 2004.

2008 M L D 1319

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and M. Naeem Ullah Khan Sherwani, JJ

Mst. GHULAM SAKINA---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.1482 of 2003, heard on 26th February, 2004.

Control of Narcotic Substances Act (XXV of 1997)---

----S.9(c)---Appreciation of evidence---Trial Court had ignored all lapses on the part of prosecution witnesses---Major discrepancies and contradictions appearing in prosecution evidence had clearly suggested that the case had been prepared at the police station---Police did not effect the raid immediately after getting the information, although they had no formidable hurdle in their way---Investigating Officer, despite having sufficient time to obtain search warrants under S.20 of the Control of Narcotic Substances Act, 1997, did not do so far the reasons best known to him---Animosity between the accused and the local public existed and the police being gravely offended with the accused, had the motive to build up a false case against her---Reasonable possibility of the defence version being true could not be excluded from consideration---Case was swollen with a large number of real doubts---Accused was acquitted in circumstances.

Mian Hamayun Aslam for Appellant.

Akhtar Ali Qureshi, A.A.-G. assisted by Syed Nazir Hussain Shah for Respondents.

Date of hearing: 26th February, 2004.

2008 M L D 1325

[Lahore]

Before Khawaja Muhammad Sharif, J

IQBAL QASIM---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.376-J of 2002, heard on 22nd June, 2004.

West Pakistan Arms Ordinance (XX of 1965)---

----S.13---Appreciation of evidence---Sentence, reduction in---Accused had got recovered the "Chhuri" from a box lying in his residential room---Recovery witness was quite independent haying no relationship with the complainant and no enmity whatsoever with the accused and he was corroborated by other recovery witness---Record did not suggest that the "Chhuri" had been planted on the accused---Conviction of accused was maintained, but his sentence of imprisonment was reduced to the period already undergone by him having been treated to be sufficient to meet the ends of justice in circumstances.

Muhammad Ilyas Jhammat for Appellant.

Kh. Muhammad Iqbal Butt for the State.

Date of hearing: 22nd June, 2004.

2008 M L D 1330

[Lahore]

Before Muhammad Akram Qureshi, J

REHMAT ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 4317-B of 2008, decided on 26th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.496-A, 497 & 498---Bail, grant of--Allegation of abduction of a married woman and also forcibly taking away valuable articles by the accused---Very registration of the case under S.496-A, P.P.C. and its continuation as such was illegal and contrary to the provisions of Penal Code---Principles---Bail was granted to the accused in circumstances.

Shahid Mehmood Aleem for Petitioner.

Sahibzada M.A. Amin Mian, Addl. Prosecutor General for the State along with Waqar, A.S.-I.

2008 M L D 1344

[Lahore]

Before Tariq Shamim and Muhammad Ahsan Bhoon, JJ

MUHAMMAD ARSHAD and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 288-J and Murder Reference No.110 of 2003 of 2002, heard on 16th June, 2008.

Penal Code (XLV of 1860)---

----Ss.302 (b)/364/34---Appreciation of evidence---Sentence, reduction in---Minor age of accused---Related witnesses---Ocular account supported by medical evidence---Details of injuries---According to F.I.R. both the accused abducted the deceased and inflicted many injuries on his vital and non-vital parts causing his death---Trial Court convicted both the accused and sentenced one accused to death and other imprisonment for life---Validity---Each and every injury was not specifically mentioned/attributed in F.I.R. nor in the testimony before Trial Court but fact remained that in such type of occurrence it was not humanly possible for the witnesses to count and ascribe each and every injury to accused persons---Although witnesses were related to deceased but solely on that account, their testimony could not be discarded---Prosecution witnesses were natural witnesses whose presence at the spot could not be doubted---Account furnished 'by prosecution witness was credible although some minor discrepancies and improvements had been pointed out in their testimony but the same were trivial in nature and did not have negative bearing on their evidence---Medical evidence furnished by doctors who examined deceased in injured condition and who conducted postmortem examination on the deceased was in line and in consonance with ocular account furnished by eye-witnesses---Medical evidence supported prosecution version as to the time of occurrence, locale of injuries and weapons used in commission of offence---Accused, who was awarded death penalty, according to statement under S.342, Cr.P.C. his age was less than eighteen years at the time of occurrence and the same was not challenged by prosecution---High Court, in furtherance of safe administration of justice, maintained conviction of both the accused but converted the death penalty into imprisonment for life of one accused whereas the sentence of the other was maintained---Appeal was disposed of accordingly.

Abdul Malik and another v. The State and others 2008 SCMR 61 rel.

Dr. Muhammad Irtiza Awan and Zafar Iqbal Chahuan for Appellants.

Muhammad Aqil Mirza, D.P.G. for the State.

Date of hearing: 16th June, 2008.

2008 M L D 1356

[Lahore]

Before Kazim Ali Malik, J

ZIA ULLAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 4491-B of 2008, heard on 27th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Prevention of Gambling Act (XXVIII of 1977), S.8---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.22---Bail, grant of---Prosecution case was that S.H.O. police having received Secret information that room rented by the accused was being used as common gambling house and raided the said room and found that accused, instead, was engaged in bottling the liquor---S.H.O. having failed to lay the secret information before the District Magistrate, or Sub-Divisional Magistrate or Magistrate of the First Class with a request for search the room of the accused had encroached upon the powers and functions of the said officers given in the relevant mandatory provisions of applicable laws and did not remain within his allotted sphere and thus his conduct could not be approved---Registration of case and seizure of liquor being violative of the mandatory provisions of law did not provide basis to connect the accused with the charge---Bail was granted to the accused in circumstances.

Bushra Qamar for Appellant.

Azra Israr Deputy Prosecutor-General for the State with Muhammad Qayyum Sub-Inspector for Respondent.

Date of hearing: 27th June, 2008.

2008 M L D 1360

[Lahore]

Before Tariq Shamim and Muhammad Ahsan Bhoon, JJ

MUHAMMAD ASLAM---Appellant

Versus

THE STATE-Respondent

Criminal Appeal No. 2150 and Murder Reference No. 860 of 2002, heard on 17th June, 2008.

(a) Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---False implication---Delay in F.I.R.---Related witnesses---Principle of mistaken identity---Effect---Accused was convicted by Trial Court and sentenced to death for committing murder---Plea raised by accused was that there was unexplained delay of one hour in recording of F.I.R. and prosecution witnesses were close relatives of deceased, therefore, accused was falsely implicated in the case---Validity---Time between receipt of injuries and death was one hour which implied that by the time complainant and others reached hospital with the injured, one hour had elapsed---Considering that the complainant after demise of deceased had to return to police station to lodge F.I.R. would sufficiently cover the time that elapsed between occurrence and report of incident by complainant---F.I.R., in such circumstances was lodged with promptitude and delay in F.I.R. stood explained satisfactorily---Mere relationship of witnesses with deceased was by itself not sufficient to disbelieve their testimony, particularly where no strong previous enmity existed between the parties---Plea of false implication was without substance, as complainant and others had no plausible reason or motive to let off the real culprits in order to falsely implicate the accused---Accused was well-known to eye-witnesses, there was no question of mistaken identity---Prosecution had succeeded in proving its case against accused beyond reasonable doubt---High Court agreed with conviction and sentence awarded by Trial Court---Appeal was dismissed in circumstances.

(b) Criminal Procedure Code (V of 1898)---

----S.103---Penal Code (XLV of 1860), S.302(b)---Recovery witness---Principle---Police witness is as good a witness as any other and his testimony can be accepted qua recovery, if otherwise found to be credible.

(c) Penal Code (XLV of 1860)---

----S.302(b)---Motive---Quantum of sentence---Insufficiency or even absence of motive is not a valid ground for awarding a lesser sentence.

Waris Khan v. The State 2001 SCMR 387 rel.

S.D. Qureshi for Appellant.

Qazi Zafar Iqbal, Additional Prosecutor General for the State.

Date of hearing: 17th June, 2008.

2008 M L D 1370

[Lahore]

Before Syed Shabbar Raza Rizvi, J

ABDUL REHMAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 5134-B of 2008, decided on 27th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.365-B & 380---Bail, refusal of---Record showed that petitioner filed constitutional petition for quashment of the present F.I.R. which was disposed of by High Court with direction that Investigating Officer would investigate the same strictly in accordance with law, yet the petitioner filed another constitutional petition which was placed before another Bench of the High Court and prayed that proceedings in the present (same) F.I.R. i.e. the investigation be stopped---Effect---Such was a clear disobedience on part of the petitioner of the orders of the High Court passed in a constitutional petition wherein investigation was directed strictly on merits---How such an accused person/petitioner could expect extraordinary concession from the High Court---Bail was declined in circumstances.

1995 PCr.LJ 943; 1976 SCMR 157; 2007 PCr.LJ 1455 and 2006 PCr.LJ 692 distinguished.

Ch. M.S. Shad for Petitioner.

Imtiaz Hussain Khan Baloch for the Complainant.

Muhammad Adeel Aqil Mirza, DPG Punjab for the State with Hameedullah, S.-I.

2008 M L D 1376

[Lahore]

Before Kazim Ali Malik and Saif-ur-Rehman, JJ

MAHMOOD IQBAL---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1 of 2008 in Criminal Appeal No. 44 of 2008, decided on 23rd April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 426---Drugs Act (XXXI of 1976), Ss. 23(1)(a), 23(1)(i), 23(1)(c)& 23(1)(iii)---Suspension of sentence---Sentence awarded to accused was short (five years) and appeal filed against his conviction and sentence could take sufficient time for its hearing on its turn---Sentence recorded by the Trial Court against accused, was suspended and he was admitted to bail.

Ch. Mahmood Ali for Petitioner.

Mian Bashir Ahmad Bhatti, DPG.

2008 M L D 1385

[Lahore]

Before Tariq Shamim and Muhammad Ahsan Bhoon, JJ

MUHAMMAD ASIF and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 973 and Capital Sentence Reference No.66-T of 2007, heard on 18th June, 2008.

(a) Penal Code (XLV of 1860)---

----Ss.302/364/392---Qanun-e-Shahadat (10 of 1984), Art.38---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Accused not nominated in F.I.R.---Last seen evidence---Un-explained delay---Joint confession---Evidence of prosecution witness with regard to last seen of deceased was recorded by police two months after disappearance of deceased---Both the accused were convicted by Trial Court for committing murder and were sentenced to death---Validity---In trial proceedings, prosecution did not produce the F.I.R. in order to establish motive behind the occurrence---One of the prosecution witnesses admitted during evidence that accused were not nominated in the case and in fact accused had nothing to do with the crime---Prosecution had failed to prove motive behind the occurrence during trial---Witness of last seen appeared before police and got his statement recorded under S.161 Cr.P.C. approximately two months after disappearance of deceased---Such witness had not been able to provide any plausible explanation in his testimony, for not approaching police or complainant earlier and thus testimony furnished by the witness was not free from doubt and could not be relied upon---Confession made by accused was in fact a joint confession which was made in presence of police, therefore, admissibility of the same was highly questionable---Prosecution had failed to bring home the guilt of accused---Conviction and sentence awarded by Trial Court were set aside and both the accused were acquitted of the charge---Appeal was allowed in circumstances.

(b) Penal Code (XLV of 1860)---

----Ss.302/364/392---Anti-Terrorism Act (XXVII of 1997), S.7---Recovery of vehicle---Validity---Mere recovery of vehicle without any evidence to connect the same with crime was of no consequence.

(c) Penal Code (XLV of 1860)---

----Ss.302/364/392---Qanun-e-Shahadat (10 of 1984), Arts.38 & 164---Anti-Terrorism Act (XXVII of 1997), S.7---Modern device evidence--Polygraphic test--Object and scope---To prove the guilt of accused, prosecution had relied upon polygraphic test administered to accused by investigating officer---Plea raised by prosecution was that as a result of polygraphic test, statement of accused before investigating officer implicating himself in murders was correct---Validity---Such statement of accused appeared to be a confession made by accused before police officer---Polygraphic test which originated in United States of America was considered to be highly unreliable---Normally polygraphic test was not administered to accused charged with criminal offences---Such test was used for ancillary purposes i.e. ascertaining integrity of employees dealing with money and financial matters by banks and corporations---Evidence of polygraphic test was of no avail to prosecution and could not be relied upon in circumstances.

Mian Abdul Qaddous for Appellant.

Muhammad Adeel Aqil Mirza, DPG for the State.

Date of hearing: 18th June, 2008.

2008 M L D 1400

[Lahore]

Before Mian Muhammad Najum-uz-Zaman and Rana Zahid Mahmood, JJ

ZUBAIR ALI KHAN---Petitioner

Versus

THE STATE and others---Respondents

Writ Petition No.674 of 2008, decided on 2nd April, 2008.

(a) National Accountability Ordinance (XVIII of 1999)---

----Ss.5 (n) & 9 (a)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Liability of accused---Determination---Directors of company---Effect---Report of Chartered Accountant---Value---Plea raised by petitioner was that according to report of Chartered Accountant, his liability was less than that of Chief Executive of the company---Validity---Private limited company was alleged to be involved in corruption and corrupt practices in terms of S. 9 (a) of National Accountability Ordinance, 1999, with all enabling provisions of relevant law on the subject---Petitioner was one of the Directors like co-accused who was Chief Executive of the company---Petitioner and co-accused prima facie were jointly and severally liable for acts and omissions committed by them during conduct of alleged illegal business of the company---Pecuniary advantage was allegedly gained by petitioner and co-accused---Loss was caused to public/claimants who made investments through huge sums on inducement given by petitioner and co-accused---Distinction drawn by Chartered Accountant between liabilities of petitioner and co-accused was a question which could be better answered by Trial Court after due trial of accused---Petition was dismissed in circumstances.

(b) National Accountability Ordinance (XVIII of 1999)---

---Ss. 5 (n) & 9 (a)---Criminal Procedure Code (V of 1898), Ss.221 & 227---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Charge, amendment of---Liability of accused---Report of Chartered Accountant---Petitioner and other directors of a private limited company were alleged to have induced members of public at large and deprived them of huge amounts by cheating---Trial Court framed charge against all accused persons showing total amount deposited by members of pubic at large---Petitioner filed application before Trial Court for amendment of the charge on the ground that according to report of Chartered Accountant, his liability was less than that of Chief Executive of the company, therefore, he would be charged for that amount only but the application was dismissed---Validity---Petitioner and co-accused, who were all running affairs of private limited company/firm, were prima facie jointly and severally liable to the charge---Perusal of charge against petitioner did not show that there was any ambiguity in charge against co-accused or there were chances of his being misled from the charge itself---Charge was the first notice to accused of accusation precisely against him levelled by prosecution---High Court declined to take any exception to order passed by Trial Court---Petition was dismissed in circumstances.

M.A. Maik and Sittar Sahjil for Petitioner.

Qazi Misbah ul Hassan, Special Prosecutor for NAB for Respondents.

2008 M L D 1408

[Lahore]

Before Muhammad Ahsan Bhoon, J

AHMED SHER and 5 others---Petitioners

Versus

THE STATE---Respondent

Criminal Revision No.159 of 2005, heard on 16th May, 2008.

Penal Code (XLV of 1860)---

----Ss. 452, 148, 337-A(1), 337-L(ii), 337-F(i) & 337-F00---Sentence, reduction in---Conviction of accused was not challenged and only reduction in their sentences was sought---Accused were facing the agony of protracted trial for the last more than five and a half years and had served out major portion of their substantive sentences---Sentences of accused were reduced to the imprisonment already undergone by each of them, which were sufficient to meet the ends of justice---Sentences of fine and Daman were, however, maintained---Revision petition was disposed of accordingly.

Shoaib Zafar for Petitioners.

Nasir Ullah Khan Niazi for the Complainant.

Asif Mahmood Cheema, DPG for the State.

Date of hearing: 16th May, 2008.

2008 M L D 1416

[Lahore]

Before Kazim Ali Malik, J

MUHAMMAD HANIF---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1032-M of 2008, heard on 4th June, 2008.

(a) Criminal Procedure Code (V of 1898)---

----S.516-A---Case property-,--Vehicle used by offender---Scope---If a vehicle is used by offender for going to or running from a place where offence was committed by him, the vehicle so used by him cannot be said to have been used for commission of that offence and the vehicle cannot be taken into possession by police as `case property'.

Syed Raza Shah v. The State 1971 PCr.LJ 19; Mst. Khudija Begum v. Sessions Judge, Sahiwal 1986 PCr.LJ 945; Syed Bahwal Shah v. The Crown PLD 1951 Baghdadul Jadeed 57 and Sheraz Elahi v. The State 1994 PCr.LJ 1935 rel.

(b) Penal Code (XLV of 1860)---

----Ss.302/324/148/149/109---Criminal Procedure Code (V of 1898), Ss.516-A & 561-A---Case property---Vehicle used by accused---Petitioner was owner of vehicle in which accused persons reached at place of occurrence and committed the offence---During investigation police took the vehicle in custody as `case property'---Petitioner was the only person who requested for temporary custody of his owned car---Area Magistrate declined request of petitioner without assigning any reason and Lower Appellate Court though accepted claim of petitioner over the disputed car but postponed his request for its Superdari till recording of evidence---Validity---Petitioner was not an accused person .in the case and according to F.I.R. accused persons used the car for reaching place of occurrence, thus there was no legal justification to take into possession the car---No reason was available to allow local police to keep the car in their custody, particularly when it had not been used in commission of any offence---Both the courts below failed to follow the law on the subject laid down by High Court and Supreme Court---High Court in exercise of inherent powers under S.561-A, Cr.P.C., declared orders passed by both the courts below passed without lawful authority and of no legal effect---High Court directed the authorities to hand over the car on superdari to petitioner.

Imtiaz Hussain Khan for Petitioner.

Ch. Shahbaz Ahmad Dhillon, A.A.-G for Respondent.

Date of hearing: 4th June, 2008.

2008 M L D 1424

[Lahore]

Before Muhammad Farrukh Mahmud, J

ABDUL RASHEED and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 4-B of 2006/BWP, decided on 27th February, 2006.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss: 324, 336, 337-A(ii), 337-F(v), 337-L(ii)---Bail, refusal of---Complainant received a sharp-edged injury on his head which caused fracture---Complainant and prosecution witnesses sustained 16 injuries on their persons---Certified copy of the order passed by the Trial Court revealed that all the witnesses were present and statement of the complainant was recorded, but the case had to be adjourned on the request of the counsel for accused---Bail was refused in circumstances.

Sardar Zafar Iqbal Khan Tareen for Petitioners.

Shahzad-ul-Haq Qureshi for the State.

2008 M L D 1430

[Lahore]

Before Muhammad Ahsan Bhoon, J

SHAUKAT---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2586-B of 2008, decided on 18th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)-Penal Code (XLV of 1860), Ss.365-B & 376---Bail, grant of---Further inquiry---Alleged abductee, after recovery, did not level allegation of Zina against accused and refused to get herself medically examined---Alleged abductee who was star witness having-not supported the prosecution, the whole story even if believed, case against accused would fall only under S.365, P.P.C.---Case of accused requiring further inquiry qua his guilt as envisaged under S.497(2), Cr.P.C. he was allowed bail, in circumstances.

Syed Faiz ul Hassan for Petitioner.

Adeel Aqil Mirza; DPG with Arshad, S.-I.

Ejaz Anwar for the Complainant.

2008 M L D 1440

[Lahore]

Before Rana Zahid Mahmood, J

SHER MUHAMMAD -Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2918-B of 2008, decided on 24th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.392---Bail, grant of---Further inquiry---Accused was not named in F.I.R.---Accused, according to prosecution, had been arrested on the statement of co-accused---Recovery of total amount of two lacs on different occasions of different amount, would not link accused sufficiently with commission of offence---Case of prosecution itself was that accused was not amongst the four who committed robbery on the shop of the complainant---Accused could be recipient of booty---Case against accused calling for further inquiry, he was allowed bail, in circumstances.

Justin Gill for Petitioner.

M.A. Amin Mian, Addl: Prosecutor General along with Najam Arif Hussain S.-I.

Ch. Tahir Pervaiz Churahi for the Complainant.

2008 M L D 1443

[Lahore]

Before Saif-ur-Rehman, J

MUKHTAR AHMAD QADRI and anther---Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 334-B of 2008, decided on 2nd April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 148 & 149---Bail, grant of---Further inquiry---Accused were not named in the F.I.R., but their names appeared on the scene as having a hand in the commission of the occurrence, during supplementary statement of the complainant---Fact as to whether the explanation given by the complainant in connection with omission of names of accused persons in the F.I.R.; and as to whether they had really abetted their co-accused to commit the murder, would be determined after recording of evidence---Case being of further inquiry, accused were admitted to bail, in circumstances.

Altaf Ibraheem Qureshi for Petitioner.

Mumtaz Hassan Awan, Advocate for the State assisted by Muhammad Yousaf A.S.-I. with record.

Ch. Muhammad Imran Shehzad for the Complainant.

2008 M L D 1447

[Lahore]

Before Abdul Shakoor Paracha, J

SHAFIQ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 877-B of 2008, decided on 27th March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 109, 148 & 149---Bail, grant of---Further inquiry---Accused allegedly was merely present at the scene of occurrence, but he did not cause any injury to the deceased---During investigation, accused had been declared innocent by the police---Whether accused was member of unlawful assembly' and shared the common intention of his co-accused to murder the deceased was a question of further inquiry---Accused was behind the bars for a considerable period---Accused was admitted to bail,, in circumstances.

Muhammad Taqi Khan for Petitioner.

Ishaq Masih Naz, DPG for the State along with Musthaq, A.S.-I. Khurram Abbas Wahga, for the Complainant.

2008 M L D 1460

[Lahore]

Before Tariq Shamim and Muhammad Ashan Bhoon, JJ

AFZAAL AHMAD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.2052 of 2002 and Murder Reference No.57 of 2003, heard on 15th May, 2008.

(a) Penal Code (XLV of 1860)---

----S.302(b)---Motive---Weakness of motive and even absence of motive in a case punishable with capital sentence is of no consequence as it relates to the state of mind of an accused and can be formed at the spur for the moment.

(b) Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Motive behind the occurrence had been proved by the prosecution---Ocular testimony was consistent and fully corroborated by medical evidence---Promptly lodged F.I.R. had excluded the possibility of false implication of accused in the crime---Presence of eye-witnesses on the spot was natural and discrepancies in their statements were also natural due to efflux of time, which even otherwise were trivial in nature---"Chhurri" recovered at the instance of accused was stained with human blood as per report of the Serologist---Recovery of "Chhuri" from the accused was credible in all respects, which had further supported prosecution version---Conviction and sentence of death of accused were upheld in circumstances.

(c) Penal Code (XLV of 1860)---

----S. 302(b)---Evidence---Related witness, credibility of---Mere relationship of the witness with the deceased by itself is not a valid ground to reject his testimony.

Shoaib Zafar for Appellant.

Shahid Mehmood Khan, DPG for the State.

Date of hearing: 15th May, 2008.

2008 M L D 1466

[Lahore]

Before Sardar Muhammad Aslam and Syed Shabbar Raza Rizvi, JJ

GHULAM ABBAS alias BASU---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.22 of 2005, heard on 7th December, 2005.

Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(b)---Appreciation of evidence---Prosecution had fully proved the recovery by producing the same in court which was exhibited---Chemical report was positive---Non-production of daily diary of the Police Officer, was not fatal to prosecution case, in circumstances---Provision of S.103 Cr.P.C. having been specifically excluded by S.25 of the Control of Narcotic Substances Act, 1997, contention that non-compliance of provision of S.103 Cr.P.C. would earn acquittal to accused was repelled---Delay in sending parcel, would not affect the prosecution case in absence of any suggestion from accused about its having been tampered with in any manner---Contradictions pointed out in the statements of prosecution witnesses, being trivial in nature, 'evidence of said witnesses could not be rejected on such-like discrepancies, which were bound to occur, when such statements were recorded after some period of time---Evidence led in defence was of no help to accused as defence witness was real brother of accused who had not appeared before any official during investigation to vouchsafe innocence of accused---Prosecution in circumstances had proved its case against accused beyond reasonable doubt---Conviction and sentence awarded to accused by the Trial Court, were upheld, in circumstances.

DRIS v. The State 2001 YLR 3078 Kar.; Hakim Ali v. The State 2001 PCr.LJ 1865 Kar.; Aijaz Ali v. The State 2001 YLR 1493; Ali Hassan v. The State PLD 2001 Kar. 369; Javed Akhtar v. The State 1998 PCr.LJ 1462 and Wahid Bux v. The State 2001 YLR 2958 rel.

Waqar Ahmed for Appellant.

Masood Sadiq Mirza for the State.

Date of hearing: 7th December, 2005.

2008 M L D 1469

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ANWAR and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.1004 and Criminal Revision No.676 of 2002, heard on 22nd April, 2004.

Penal Code (XLV of 1860)---

----S.302(b)/34---Appreciation of evidence---Benefit of doubt---Complainant in the F.I.R. had ascribed specific injuries to two co accused who had been killed later on in a police encounter----No specific injuries were attributed to the present accused and they were only stated to have also fired which hit the deceased---Subsequently in order to implicate the accused specific injuries on the head, face and chest of the deceased were attributed to them which had already been attributed to the aforesaid co-accused---No recovery was effected from the accused---F.I.R. did not contain any specific motive for the occurrence against the accused---Defence had, been successful in creating dents in the case set up by the complainant party---Accused were acquitted on benefit of doubt in circumstances.

2000 SCMR 400; PLD 2002 SC 62 and 2003 SCMR 884 ref.

Ch. Abdul Waheed for Appellants.

Ch. Nazir Ahmad for the State.

Taqi Ahmad Khan for the Complainant.

Date of hearing: 22nd April, 2004.

2008 M L D 1476

[Lahore]

Before Asif Saeed Khan Khosa and M.A Shahid Siddiqui, JJ

QUDRAT ULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.102 of 2001, heard on 27 January, 2004.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Benefit of doubt---Eye­witnesses produced by the prosecution had brought nothing on record to independently establish their presence at the place of occurrence at the relevant time---Chance witness could not be readily believed by a criminal court, unless the reason for his presence was satisfactorily established before the court through some independent evidence available on record---No such independent evidence or circumstance was available on record to substantiate the claim of the eye-witnesses in that regard in the case---Many features were found in the case which created a serious doubt regarding the presence of those eye-witnesses at the spot at the time of alleged occurrence---F.I.R. in the case had not been lodged at the Police Station---Motive set up by the prosecution in the case had remained far from being established and same had failed to provide any corroboration to the ocular account produced before the Trial Court---Alleged recovery of a rifle .8 MM from the possession of accused during the investigation and its subsequent matching with a crime-empty, recovered from the place of occurrence were legally inconsequential as the report of the Forensic Science Laboratory had clearly established that rifle as well as the crime-empty had been received at the said Laboratory on one and the same day---Possibility could not be safely ruled out that a crime-empty was manufactured---Only witness from the public produced by the prosecution before the Trial Court regarding the alleged recovery of a rifle from the possession of accused, was none other than complainant himself, who had himself stated that he had not made any statement before the Investigating Officer regarding the said recovery---Alleged recovery from accused had also failed to provide independent corroboration to the ocular account furnished before the Trial Court---Medical evidence produced by the prosecution had contradicted the ocular account in many ways---Occurrence had taken place after dark and presence of eye-witnesses at the scene of the crime at the relevant time had been found to be quite doubtful---Possibility could not be safely ruled out that deceased had been done to death by a person other than accused, especially when apparently accused had no established motive to take life of deceased---Prosecution having failed to prove its case against accused beyond reasonable doubt, he was entitled to the benefit of doubt---Conviction and sentence of accused recorded against him by the Trial Court, were set aside and he was acquitted of the charge and was released.

Ch. Mehmood Akhtar Khan for Appellant.

Suleman Safdar, Advocate (Defence Counsel) for the appellant at the State expense.

Aziz Ahmad Malik for the Complainant.

Mrs. Erum Sajjad Gul for the State.

Date of hearing: 27th January, 2004.

2008 M L D 1486

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

MATEE ULLAH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 565 of 2003, heard on 27th January, 2004.

Penal Code (XLV of 1860)---

----Ss.302(b), 309 & 310---Criminal Procedure Code (V of 1898), S.345---Appreciation of evidence---Compromise---Accused filed application under S.345 Cr.P.C. read with Ss.309 & 310 P.P.C. that a compromise had been arrived at between him and legal heirs of the deceased whereby legal heirs had forgiven the accused---Authority of the compromise was verified by Sessions Judge who reported that a genuine compromise had been effected between the accused and legal heirs of deceased without any pressure or coercion---Effect---Compromise would restore good relationship inter se the parties who because of the acrimony arising out of murder case, had become daggers drawn---Application of compromise was accepted by High Court and appeal filed by accused was disposed of in terms of the compromise---Accused was acquitted and was ordered to be released.

Kh. Awais Mushtaq for Appellant.

S.D. Qureshi for the State.

Date of hearing: 27th January, 2004.

2008 M L D 1489

[Lahore]

Before Tariq Shamim, J

SAJID SAEED HUSSAIN SINDHU---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 8159-B of 2007, decided on 18th December, 2007.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.489-F---Pre-arrest bail, confirmation of---Accused had lodged F.I.R. against his ex-employee for stealing some cheques including the one which was subject matter of the case---Documents on the record had revealed that accused had intimated the bank regarding theft of cheques and had also instructed the bank not to encash cheques including the one issued in the name of the complainant---Prima facie the assertion of accused that cheques had been stolen, appeared to be correct---Cheque in question was sent to Forensic Science Laboratory for comparison of signatures of accused and the report from the Forensic Science Laboratory revealed that signatures on the cheque in question did not tally with the specimen signatures of accused---Said negative report had implied that prima facie the cheque in question was not issued/signed by the accused---Offence under S.489-F, P.P.C. being punishable with a maximum sentence of three years, did not fall within the ambit of prohibitory clause of S.497, Cr.P.C.---Since the evidence was documentary in nature, which had already been taken in possession by the police, the corpus of accused was not required by the police for the purpose of investigation---Ad interim pre-arrest bail granted to accused, was confirmed, in circumstances.

Shoaib Zafar for Petitioner.

Azeem Sarwar for the Complainant.

Ch. Amjad Hussain, Depufy Prosecutor-General for the State along with Abdul Ghaffar, A.S.-I.

2008 M L D 1495

[Lahore]

Before Khawaja Muhammad Sharif and Ch. Iftikhar Hussain, JJ

LAL DIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 110/J of 2001, heard on 18th January, 2004.

Penal Code (XLV of 1860)---

---S.302---Appreciation of evidence---Matter was a case of promptly lodged F.I.R.---Counsel for accused did not challenge the conviction of accused on merits, but had submitted that mitigating circumstances were there for reduction of sentence of accused---Accused, who had committed the intentional murder of four persons had no mitigating circumstances in his in favour, especially when accused could not prove case of Ghairat---Accused, though was father of six children, but that was not a mitigating circumstance for the reason that deceased, who were four in number, must have children, more than accused---Appeal filed by accused was dismissed and conviction and sentence recorded against him by the Trial Court, were maintained in toto.

Bashir Salman Safdar for Appellant at State expenses.

Malik Sulman Awan for the State.

Date of hearing: 18th January, 2004.

2008 M L D 1498

[Lahore]

Before Asif Saeed Khan Khosa and Ch. Iftikhar Hussain, JJ

MUKHTAR AHMAD and others---Appellants

Versus

THE STATE and others---Respondents

Criminal Appeals Nos.2215 and 2219 and Criminal Revision No. 1223 of 2002, decided on 13th July, 2004.

Penal Code (XLV of 1860)---

----Ss.302, 319 & 324/34---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Main accused who was convicted and sentenced under S.319 P.P.C. having not pressed his appeal against his conviction and sentence, his appeal was dismissed as having been withdrawn---Co-accused was acquitted from the charge under Ss.302 & 324 P.P.C. and complainant had filed appeal against the acquittal---Said co-accused had not caused any injury to deceased and he also was not proved to have caused injury to prosecution witness---Trial Court had found claimed presence of the eye-witness at the place of occurrence to be doubtful---Medical evidence did not provide support to ocular account---No motive, had been alleged against the acquitted accused and no weapon had been recovered from his possession during the investigation of the case---Allegation regarding intentional firing of acquitted accused upon the person of prosecution witness, in circumstances, appeared to be incompatible with the finding of accidental firing upon deceased recorded by the Trial Court which finding had not been challenged by any party---Conclusion arrived at by the Trial Court regarding the prosecution's case against acquitted accused being not free from doubt, had appeared to be a conclusion which was neither arbitrary nor perverse---Acquitted accused had earned his acquittal on merits of the case two years after the occurrence---About a year and eight months had already gone by since recording of his acquittal---Acquittal of said accused recorded by the Trial Court, could not be interfered with in circumstances---Appeal against acquittal., was dismissed and accused stood discharged.

Mian Ghulam Rasool for Appellant (in Criminal Appeal No.2215 of 2002).

Nazir Ahmad Ghazi for Petitioner (in Criminal Revision No.1223 of 2002) and Appellant (in Criminal Appeal No. 2219 of 2002).

Tehseen Irfan for the State.

Mian Ghulam Rasool for Respondent No.1 (in Criminal Appeal No. 2219 of 2002).

Date of hearing: 13th July, 2004.

2008 M L D 1502

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

AMANAT ALI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1666 of 2002, heard on 22nd January, 2004.

Control of Narcotic Substances Act (XXV of 1997)---

---S.9(b)---Appreciation of evidence---Sentence, reduction in---Out of four accused persons one had expired during pendency of the case, second was murdered, third was acquitted and fourth was found guilty and was sentenced---Main argument of counsel for the said accused was about the illegal raid into his premises and it was contended that it had vitiated the entire trial and that there was every possibility that the heroin and charas were planted because accused was not apprehended at the spot---Counsel for accused had further contended that 'he had already suffered the rigors of trial and incarceration sufficiently and keeping in view the quantum of narcotics, his sentence be redeemed---Held, in view of overall circumstances of the case and the last submission of the counsel for accused, it would serve the interest of justice if his sentence was reduced to one already undergone---Orders were made accordingly---Rest of the order of the Trial Court would remain intact.

M. Ahmed Khan for Appellant.

Ch. Muhammad Suleman Addl. A.-G. Assistant by Abdul Salam for the State.

Date of hearing: 22nd January, 2004.

2008 M L D 1509

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD RAMZAN alias KAKOO---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 641 and Criminal Revision No. 296 of 2002, heard on 20th July, 2004.

Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Occurrence having taken place in the house of deceased, his son was the natural witness---Delay in recording F.I.R. had been fully explained by the complainant---No direct enmity existed between the eye-witness and accused---Crime empties recovered from the spot also matched with the pistol recovered on the pointation of accused and there was no delay in recovering the pistol on pointation of accused---Electric bulb had been shown in the site-plan prepared by the Patwari---Case being of single accused, there was no question of substitution---Ocular account was corroborated by Medical evidence and also with the recovery of pistol and the positive report of the Firearms Expert---No reason existed for the false implication of accused---Trial Court had mentioned that the motive was shrouded in mystery---Interfering or enhancing the sentence awarded to accused was not needed in circumstances---Prosecution having proved its case against accused, there was no merit in appeal filed by accused against his conviction and sentence.

Sheikh Arif Hussain for the Appellant at State expense.

Nemo for the State.

Abdul Aziz Khan Niazi for the Complainant.

Date of hearing: 20th July, 2004.

2008 M L D 1516

[Lahore]

Before Bashir A. Mujahid and Rustam Ali Malik, JJ

BAKHTAWAR alias BAKHOO---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 278-J and 1737 and Murder Reference No.769 of 2000, heard on 5th May, 2004.

(a) Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Sentence, reduction in---Accused who allegedly was armed with sota caused fatal injuries to deceased---Ocular account furnished by complainant and other prosecution witness had been fully corroborated by medical evidence---Weapon of offence was also recovered from the possession of accused---Prosecution witnesses and accused being residents of the same locality who knew each other, question of mistaken identity did not arise---Prosecution witnesses had no previous enmity for false implication of accused by letting off real culprit---Prosecution case, in circumstances had been established against accused, his conviction recorded by the Trial Court could not be interfered with---Accused was aged 15/16 years old; he being minor his sentence of death was reduced to imprisonment for life with benefit of S.382-B, Cr.P.C.---Punishment of compensation awarded to accused by the Trial Court, however was maintained.

Amanat Ali v. Nazim Ali and another 2003 SCMR 608 ref.

(b) Penal Code (XLV of 1860)---

----S.302(b)---Appreciation of evidence---Benefit of doubt---Co-accused though was stated to be armed with churri, but no sharp weapon injury was noticed by the doctor on the deceased---Complainant and prosecution witness had improved their statements during the trial to bring the case in accord with medical evidence---Doctor having not found the sign of strangulation on the deceased as alleged by the prosecution witnesses, in safe administration of justice, benefit of doubt was extended to said co-accused and his conviction and sentence were set aside---Accused was acquitted of the charge and was released.

Syed Fayyaz Ahmad Sharazi for Appellant (at State expenses).

Erum Sajjad Gul for Respondent.

Date of hearing: 5th May, 2004.

2008 M L D 1524

[Lahore]

Before Khawaja Muhammad Sharif, J

ATLAS KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 394-J of 2002, heard on 28th May, 2004.

Penal Code (XLV of 1860)---

----Ss.324 & 311---Criminal Procedure Code (V of 1898), Ss.345 & 561-A---Appreciation of evidence---During pendency of appeal, an application under Ss.345 and 561-A Cr.P.C., for acquittal of accused on the basis of compromise was submitted---Accused party, however did not agree to deposit the amount of Diyat in the name of the minor legal heirs of deceased---Compromise, in circumstances, could not be effected/ completed to that extent---Application for compromise was dismissed on that very ground and appeal was fixed for arguments--Validity---Accused had not only killed the two persons including a minor boy, but had also injured a female---Trial Court had acquitted accused in the murder of one of the deceased, but had convicted him under S.311 P.P.C. for causing death of other deceased and also convicted him under S.324 P.P.C. for causing injury to injured female---Act of accused was a brutal one---Already leniency had been shown to accused by the Trial Court---No mitigating circumstances being available in favour of accused, his appeal against his conviction and sentence, was dismissed.

Abdul Qayyum Anjum for Appellant at State expenses.

Muhammad Azam for the State.

Date of hearing: 28th May, 2004.

2008 M L D 1529

[Lahore]

Before Asif Saeed Khan Khosa, J

FAZAL KARIM---Appellant

Versus

MUHAMMAD KHALIL and another---Respondents

Criminal Appeal No.178 of 2002, decided on 13th May, 2004.

(a) Penal Code (XLV of 1860)---

---Ss. 420/467/468/471---Criminal Procedure Code (V of 1898), S.417(2-A)--Appeal against acquittal---Accused had allegedly forged affidavits of five prosecution witnesses in a murder case, on the basis of which accused persons were opined by the Investigating Officer to be innocent---Some material might have come on record during investigation showing that the accused had made some efforts to obtain stamp papers and to get the some scribed for preparing affidavits, but no material was available on record to show that the accused himself had either committed the forgery or had used any forged document---Admittedly accused was not the beneficiary of the alleged forgery---Report of the 'Forensic Science Laboratory regarding the thumb impressions on the relevant affidavits did not establish that the accused and none else had placed the same on the affidavits and thus the report was legally inconsequential against the accused---Trial Court had acquitted the accused in year, 2001 when he was about seventy years of age---After registration of the case accused had already suffered enough for the alleged preparation having made by him for procuring the relevant affidavits and preparation for an offence by itself did not constitute any offence at all---Impugned acquittal of accused did not call for any interference-Appeal was dismissed summarily accordingly.

(b) Criminal jurisprudence---

----Offence, preparation of---Preparation for an offence by itself does not constitute any offence at all.

Nazeer Ahmad Ghazi for Appellant.

2008 M L D 1531

[Lahore]

Before Rana Zahid Mehmood, J

RASHID HUSSAIN---Appellant

Versus

Soofi ABDUL HAMEED- Respondent

S.A.O. No.39 of 2008, heard on 4th July, 2008.

(a) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 15(6)---Denial of relationship of landlord and tenant between parties---Tenancy agreement tendered by landlord in evidence marked as (A) in statement of his counsel---Ejectment order passed by Rent Controller upheld by District Judge by taking judicial notice of such agreement---Plea of tenant that he was tenant under deceased brother of landlord; and that such agreement was not exhibited, but was marked as "A", which he could not take seriously, thus, he had been condemned unheard---Validity---Landlord in his counsel's statement had tendered in evidence his title deed, documents in his favour from Excise and Taxation Department and such agreement---Tenant, after such statement of landlord's counsel, had produced his evidence, but had not countered such agreement by leading cogent and strong evidence---Widow of landlord's deceased brother in her affidavit and statement before Court had denied tenant's claim to be tenant of her deceased husband---Tenant while cross-examining widow had not challenged her such statement---Tenant at stage of second appeal, thus, could not be allowed to raise such plea, which he had not raised before Rent Controller---Document brought on record by a party with approval of Court, whether in shape of exhibited or marked document, could be taken into consideration, but in accordance with law---District Judge had rightly taken into consideration such agreement through judicial notice---Oral evidence of landlord including statement of widow, exhibited documents including gas and electricity bills had proved that demised property was in the name of landlord and had never been in possession of his deceased brother---Tenant's reliance on a clause in such agreement for reference of dispute to arbitration had amounted to his admission of existence of such agreement---High Court dismissed appeal in circumstances.

Pakistan International Airlines Corporation v. Messrs Pak Safe Drycleaners PLD 1981 SC 553; Cantonment Board, Kharian v. Messrs Jafri Traders Corporation 2006 SC 693; Muhammad Farooq v. Nazir Ahmad and others PLD 2006 SC 196; Nuricon Union (Pvt.) Limited v. Muhammad Naseer Sajjad 2005 CLC 882 (Lah.); Commissioner of Income Tax v. Mst. Sakina Karim 1979 CLC 644 (Lah.); Masood Hussain Anwar v. Sheikh Muhammad Amin 1982 CLC 1777 (Lahore); Abdul Hameed and others v. Rais Karim and others PLD 1985 Quetta 112; Diwan Singh and others v. Emperor AIR 1933 Lah. 561 and Union of India v. T.R. Verma AIR 1957 SC 882 ref.

(b) West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----Ss. 13 & 15(6)---Arbitration Act (X of 1940), S. 34---Ejectment petition---Tenancy agreement containing a clause for reference of dispute to arbitration---Submission of tenant to jurisdiction of Rent Controller by filing written statement/reply, joining proceedings and leading evidence---Tenant's claim in second appeal against ejectment order for reference of dispute to arbitration---Validity---Tenant had not claimed such reference prior to his filing of written statement/reply in proceedings before Rent Controller---Tenant could not raise such plea for first time in second appeal---High Court dismissed appeal in circumstances.

Pakistan International Airlines Corporation v. Messrs Pak Safe Drycleaners PLD 1981 SC 553; Cantonment Board, Kharian v. Messrs Jafri Traders Corporation 2006 SC 693; Muhammad Farooq v. Nazir Ahmad and others PLD 2006 SC 196; Hakim Khan v. Aurangzeb and another PLD 1975 Lah. 1170 and Mst. Iqbal Begum and 8 another v. Muhammad Yousaf and seen others PLD 2003 Lahore 255 rel.

(c) Civil Procedure Code (V of 1908)---

----O. XIII, R.4---Document exhibited or marked with approval of court---Validity---Such document could be taken into consideration, but in accordance with law.

S.M. Masood for Appellant.

Tahir Mahmood Khokhar for Respondent.

Date of hearing: 4th July, 2008.

2008 M L D 1537

[Lahore]

Before Muhammad Khalid Alvi, J

Rana HAMID KHAN and others---Petitioners

Versus

MEMBER, (JUDICIAL-IV) BOARD OF REVENUE PUNJAB, LAHORE and others---Respondents

Writ Petition No. 6705 of 2005, heard on 20th June, 2008.

(a) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S.2(2) & (3)---Pending proceedings---Duty of Notified Officer---Scope---Notified Officer in proceedings pending at the time of repeal of the Acts and transferred to him or remanded to him by any higher forum, including High Court and Supreme Court, was required to decide matters in terms of repealed Acts and Regulations---Only course open to a Notified Officer was to go by law which stood repealed---If a claimant/allottee was in litigation with another claimant/allottee prior to repeal of Acts and it continued thereafter then it would be deemed to be pending proceedings required to be decided by Notified Officer in accordance with repealed Acts.

PLD 1979 SC 846 rel.

(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S.2(2) & (3)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Pending proceedings---Entitlement of land---Cash compensation---Scope---Respondents were held upto Supreme Court as not entitled to land in dispute as against petitioners who were held entitled to the land---Authorities offered cash compensation to petitioners instead of allotment of land against the units---Validity---No option was left with authorities to refuse allotment to petitioners and hand over possession of land in dispute to them---Offer of cash compensation was violation of S.2(3) of Evacuee Property and Displaced Persons Laws (Repeal) Act, 1975---Petitioners had a right of allotment against their claim for land left by them in India but was wrongly got allotted by predecessor-in-interest of respondents for which petitioners' predecessor-in-interest and then petitioners remained in litigation for no fault on their part---Right of petitioners stood finally settled up to the level of Supreme Court, therefore, when their right had matured, it would be unfair that they should be deprived of their right of allotment of land and merely compensated through nominal compensation---Such was a case which could be confidently said to be "pending case/ proceedings" at the time of repealing Act-High Court declared the order passed by authorities to be illegal and without lawful authority to the extent of refusal to allot land to petitioners---Petition was allowed accordingly.

PLD 2003 SC 603 and 1997 SCMR 1635 ref.

PLD 1979 SC 846 rel.

Ch. Muhammad Hussain Jahania for Petitioners.

Ch. Abdul Ghani for Respondents.

Syed Mohtasham ul Haq Pirzada, Advocate.

Date of hearing: 20th June, 2008.

2008 M L D 1542

[Lahore]

Before Bashir A. Mujahid, J

FAROOQ AHMED and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 649, of 2003 heard on 13th July, 2004.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Witnesses of extra-judicial confession allegedly made by accused had neither tried to cause his arrest, nor they had any authority to help him and they were also closely related to the complainant---Such confessional statement of accused, therefore, could neither be relied upon, nor the same could be used against his co-accused who had been implicated therein---Prosecution evidence that the accused had been seen near the place of occurrence during the night was not believable., as the witnesses had got their statements recorded after six months and during this period they never narrated said fact to the complainant or any other prosecution witness---Mere recovery of gun from accused did not connect him with the murder of the deceased---Motive had been introduced later on---Prosecution case had not been established against the accused beyond shadow of doubt--Accused were acquitted in circumstances.

Ch. G. Mustafa Bandesha for Appellants.

Arif Ali Hazoor for the State.

Date of hearing: 13th July, 2004.

2008 M L D 1549

[Lahore]

Before Tassaduq Hussain Jilani and Muhammad Sayeed Akhtar, JJ

MUHAMMAD MUDASSAR---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 91 of 2003, heard on 28th April, 2004.

Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(c)---Appreciation of evidence---Accused admittedly was less than fifteen years of age at the time of occurrence---DSP in investigation had found that the recovered "Charas" did not belong to accused but to another person, who was neither arrested nor joined in investigation---Instead of submitting final report in the light of the said finding of the DSP, accused was challaned on the report of S.H.O. who was accused of accepting bribe of one lac rupees from the aforesaid another person and letting him off--Finding of DSP had demolished the prosecution story with regard to the manner and place for the alleged raid---Three other public witnesses had also vouchsafed for the innocence of accused---Conviction of accused merely on the statements of two police officers of the raiding party, in circumstances, was not in accord with the safe administration of justice---Accused was acquitted accordingly.

Saif-ul-Haq Ziay for Appellant.

Mian Abdul Qayum Anjum for the State.

Date of hearing: 28th April, 2004.

2008 M L D 1554

[Lahore]

Before Khawaja Muhammad Sharif, J

ABDUL RAZZAQ---Appellant

Versus

MUHAMMAD SALEEM and 2 others---Respondents

Criminal Appeal No.1415 of 2002, heard on 8th June, 2004.

Penal Code (XLV of 1860)---

----Ss.420, 406, 468 & 506---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Allegation against accused was that he purchased steel from appellant/complainant and gave him a cheque, but said cheque was found to be fake---Complainant, while appearing in the court as prosecution witness, had never produced the cheque or slip issued by the Bank stating therein that amount was not there; and in fact the words which were given in the slip were "referred to drawer" which slip was also not produced either during the investigation or before the Trial Court---Complainant had laid much stress on the statement of an employee of the Bank, but that employee had never stated in his examination-in-chief that he was an employee of said Branch of the Bank on the date when cheque was produced---Complainant had also filed a civil suit under O.XXXVII C.P.C. for the recovery of amount, which was the cost of steel which was purchased by accused which suit was dismissed---Appeal against acquittal having no merits was dismissed by High Court.

Seed Uddin Qureshi v. The State PLD 1963 (W.P.) Kar. 54 rel.

Rai Bashir Ahmad for Appellant.

Mirza Abdullah Baig for the State.

Nadeem Ashraf Chughtai for Respondent No.1.

Date of hearing: 8th June, 2004.

2008 M L D 1556

[Lahore]

Before Syed Hamid Ali Shah and Muhammad Khalid Alvi, JJ

Doctor NAZIR AHMAD alias MITHU DOGAR---Petitioner

Versus

ELECTION COMMISSION OF PAKISTAN, ISLAMABAD and 4 others---Respondents

Writ Petition No. 605 of 2008, decided on 26th February, 2008.

Representation of the People Act (LXXXV of 1976)---

----S.39(6)---Representation of the People (Conduct of Election) Rules, 1977, R.26(3)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Prayer for recounting of votes,---Refusal of Election Commission and District Returning Officer to accept such prayer of petitioner---Validity---Power to recount votes and include challenged ballot papers after scrutiny vested with Returning Officer---Petitioner had not approached Returning Officer for such purpose, but had approached High Court without availing such appropriate remedy available to him under law---High Court dismissed constitutional petition for being incompetent.

Sardar Muhammad Sarfraz Dogal for Petitioner.

Mian Abbas Ahmad, Add. A.-G., on Court's call.

2008 M L D 1558

[Lahore]

Before Mian Muhammad Najum uz Zaman and M. Naeemulah Khan Sherwani, JJ

Mst. MANZOORAN---Appellant

Versus

MUHAMMAD NAWAZ and 2 others---Respondents

Criminal Appeal No. 639 of 2003, decided on 26th January, 2004.

Penal Code (XLV of 1860)---

----S.302/34---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Eye-witnesses had not tried to get hold of the accused although one of them was a woman and they were not carrying any lethal weapon, and none of them had reported the matter to the police and kept silent for three days---Silence of the eye-witnesses for such along period had made the prosecution case doubtful---Explanation furnished by the complainant for lodging a delayed F.I.R. seemed to be concocted and a tutored one---Motive part by the prosecution case was not supported by any direct evidence---Reason given by the Trial Court for acquitting the accused were neither arbitrary nor artificial and the impugned judgment needed no interference---Appeal was dismissed accordingly.

Mian Muhammad Sikandar Hayat for Appellant.

2008 M L D 1563

[Lahore]

Before M. Bilal Khan, J

FAISAL AHMED alias MASOOD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2629-B of 2004, decided on 24th May, 2004.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Penal Code (XLV of 1860), Ss.114/338---Bail, grant of---F.I.R. had been lodged after an inordinate delay of five months---No confirmatory material was available with the prosecution to support the solitary statement of the victim girl---Case of accused needed further inquiry within the meanings of subsection (2) of section 497, Cr.P.C.---Accused was in custody for the last more than seven months and his trial had not yet concluded---Accused could not be retained in custody as a measure of punishment---Bail was allowed to accused in circumstances.

Nazir Ahmad for Petitioner.

Malik Muhammad Aslam for the State.

Zafar Iqbal A.S.-I. with police file.

2008 M L D 1568

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD RIAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 1409 of 2001, heard on 15th April, 2004.

(a) Emigration Ordinance (XVIII of 1979)---

----S. 22(b)---Appreciation of evidence---Benefit of doubt---Investigating Officer despite repeated adjournments did not appear before the Trial Court and ultimately the prosecution case was closed---Non-production of the Investigating Officer in the case had deprived the accused of his precious right to bring on record the lacunas of the case of prosecution and, therefore, it would be unjust to rely on the statements of other prosecution witnesses---Even otherwise, said witnesses had compromised with the accused before the commencement of the trial---Statement of accused under section 342, Cr.P.C. and 340(2), Cr.P.C. and other defence evidence, had shown that the accused himself had fallen a victim to evil deeds of another person and was deprived of huge amount on .the pretext of sending him abroad for employment---Accused was given benefit of doubt and acquitted in circumstances.

Bashir Ahmad and another v. The State 1996 PCr.LJ 418 ref.

(b) Emigration Ordinance (XVIII of 1979)---

----S.22(b)---Non-examination of Investigating Officer---Effect---Investigating Officer is not a formal witness, as several aspects of the case which prosecution witnesses try to conceal from the Court can be brought out from his statement and the omission to examine the Investigating Officer puts the accused to serious handicap in defending himself from the charge levelled against him.

Bashir Ahmad and another v. The State 1996 PCr.LJ 418 ref.

Tariq Mahmood for Appellant.

Nemo for the Respondent.

Date-of hearing: 15th April, 2004.

2008 M L D 1581

[Lahore]

Before Khawaja Muhammad Sharif and Ch. Iftikhar Hussain, JJ

NASEER AHMED alias NASEERA---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 1366 of 1999, 262 of 2000 and Murder Reference No.26 of 2000, heard on 9th December, 2003.

Penal Code (XLV of 1860)---

---S.302(b)---Qanun-e-Shahadat (10 of 1984), Art.121---Appreciation of evidence---Broad-daylight occurrence---Delay in lodging F.I-.R. fully explained---Motive alleged against occurrence was that son of deceased had illicit liaison with daughter of accused and accused had grudge over the same---Illicit relation, if any, was between son of deceased and the daughter of accused and deceased had no concern with the motive---Was not believable that father would join hands with his son in such like matter---Ocular account was fully supported by the medical evidence---Version of accused was that he was innocent, but when his version and versions of eye-witnesses were put in juxta position, version of prosecution seemed to be more plausible and convincing one---Onus would lie on accused in taking the special plea to discharge the same under Art. 121 of Qanun-e-Shahadat, Order, 1984---Accused had failed to substantiate his version either before the Police or before the Trial Court---Accused even had failed to produce his wife and daughter before the Trial Court to support his version---Another version of accused was that there was cross-firing between the parties and deceased received a fire shot, but that version got no support from any source whatsoever---Accused, who remained absconded for about one year, was declared proclaimed offender---Said abscondence of accused for such a long period, also gave corroboration to the eye-witness account---Mere insufficiency of motive, was no ground for mitigation---Prosecution having proved its case against accused beyond any shadow of doubt, his appeal against his conviction and sentence, was dismissed and in absence Of any mitigating circumstances death sentence awarded to him by the Trial Court was confirmed---Co-accused having only been attributed Lakara was rightly acquitted by the Trial Court.

1999 SCMR 1668 ref.

Ch. Muhammad Sharif, Sahi for Appellant.

Malik Muhammad Suleman for the State.

Date of hearing: 9th December, 2003.

2008 M L D 1587

[Lahore]

Before Sh. Azmat Saeed, J

MANZOOR HUSSAIN and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1993-B of 2007, decided on 25th September, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302, 324 & 337-A(ii), F(v)/34---Bail, grant of---Further inquiry---Complainant and both accused persons were real brothers and the motive clearly spoke of family dispute over an intending marriage, to which complainant was least inclined---Wide net had been thrown to involve even the aged men from the family of accused side---Both accused persons were in continuous detention over since 12-12-2005 without any progress in the trial and the conclusion thereof was not in sight in the. near future, notwithstanding issuance of directions by the High Court 'for its expeditious conclusion---Further detention would be hardly significant for the prosecution case---Facts and circumstances of the case attracting provisions of further inquiry, case was fit for interference and exercise of discretion in favour of accused persons---Accused persons were released on bail, in circumstances.

Ch. Muhammad Anwar ul Haq for Petitioners.

Sh. Imtiaz Ahmed for the State.

Muhammad Akram A.S.-I. for Police Station Sarwar Shaheed with police file.

2008 M L D 1592

[Lahore]

Before Mazhar Hussain Minhas, J

KHADIM HUSSAIN---Petitioner

Versus

THE STATE and 2 others---Respondents

Writ Petition No. 648 of 2005, heard on 18th June, 2008.

Criminal Procedure Code (V of 1898)---

----S.249-A---Penal Code (XLV of 1860), Ss.342, 380, 440, 148 & 149---Constitution of Pakistan (1973), Art.199---Constitutional petition--Quashing of order---After submission of challan, petitioner/accused moved application under S.249-A, Cr.P.C. seeking his acquittal which was not allowed, however case was adjourned sine die till the decision of civil litigation pending between the parties---Judicial Magistrate, on revision, was directed to proceed with the trial---Aggrieved of the impugned order passed in criminal revision, petitioner/accused filed constitutional petition---Application filed by the petitioner/accused under S.249-A, Cr.P.C. was not decided on merits and the case was adjourned sine die to wait the result of civil litigation pending between the parties and said application was still pending---Additional Sessions Judge/Revisional Court had not attended to that aspect and had not directed the Trial Magistrate to dispose of said application---Trial Court/Judicial Magistrate was directed by High Court to decide petitioner's application filed under S.249-A, Cr.P.C. before proceeding with the trial of the case---Documents produced by the petitioner, if any, would also be taken into consideration to reach a just conclusion for the disposal of the application---Constitutional petition was dismissed.

Sheraz Ahmad and others v. Fayyaz-ud-Din and others 2005 SCMR 1599; M. Aslam Zaheer v. Ch. Shah Muhammad and another 2003 SCMR 1691 and Malik Khuda Bukhsh v. The State 1995 SCMR 1621 ref.

Tahir Mehmood for Petitioner.

Sardar Zafar Ahmed Lond for Respondent No.4 and Mubashir Latif Gill, Assistant Advocate General with Muhammad Asghar, S.-I.

Date of hearing: 18th June, 2008.

2008 M L D 1595

[Lahore]

Before M.A. Zafar and Muhammad Ahsan Bhoon, JJ

KHALID alias KHALA and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 179 of 2002, heard on 28th May, 2008.

(a) Penal Code (XLV of 1860)---

----Ss. 302(b)/148 & 149---Appreciation of evidence---Benefit of doubt---No eye-witness of the occurrence was available and whole case of the prosecution depended upon the circumstantial evidence---No motive was alleged in the F.I.R. lodged by the complainant, however, later on, motive was alleged that a dispute of money matter existed between accused persons and the deceased, but in the whole evidence of the complainant, who was brother of deceased, nothing surfaced in evidence showing as to what kind of money dispute existed between accused persons and the deceased---Story of motive being an afterthought, it could be safely held that prosecution had failed to establish any motive for the alleged occurrence---Evidence of last seen was furnished by the complainant, who was brotherhood of deceased and other prosecution witness who was from brotherhood of the complainant, but they both had contradicted each other on material points i.e. about time of occurrence as well as story of identification, which could not be believed for the purpose of capital punishment---Only one accused was nominated as accused in the F.I.R.---Version given by other prosecution witness that was also not believable and confidence-inspiring, when he admitted that he was coming from the Dera at odd hours and no source of light was available when he saw both accused persons---Empties and rifle having been deposited together, fabrication or tampering with, could not be ruled out, particularly when accused had already been arrested---Prosecution, in circumstances, had failed to establish its case beyond any shadow of doubt against accused persons-Conviction and sentence recorded by the Trial Court against accused persons, were set aside, they were acquitted of the charge by giving them benefit of doubt.

(b) Penal Code (XLV of 1860)---

----S. 302(b)/148/149---Appreciation of evidence---Medical evidence, did show that both the deceased died unnatural death, but the injuries caused to them themselves did not speak that same were caused by some particular individual when occurrence was unseen and story given by the prosecution witness i.e. last seen and wajtakkar was self-contradictory to each other and demolished the whole case of the prosecution---Evidence, produced, in case of circumstantial evidence must be in geometrical progress and the chain of evidence from one side, should be touching to the dead bodies and from the other it should be touching to the neck of accused---If one ring from chain was missing, then the whole case would fall on the ground and for the purpose of conviction and sentence in the case of capital punishment, there must be a strong corroboration regarding each and every fact, particularly in a case of circumstantial evidence.

Waqar Hussain Mir, Raja Muhammad Hanif, and S.D. Qureshi Defence Counsel for the Appellants.

Qazi Zafar Iqbal D.P.G. assisted by Muhammad Maqsood Buttar for the Complainant.

Date of hearing: 28th May, 2008.

2008 M L D 1606

[Lahore]

Before Sayed Zahid Hussain, C.J.

WAPDA through General Manager---Appellant

Versus

S.H. HAQ NOOR AND COMPANY and another---Respondents

F.A.O. No.62 of 2008, heard on 15th July, 2008.

Arbitration Act (X of 1940)---

----Ss. 20 & 41---Contract Act (IX of 1872), S.126---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Application for filing arbitration agreement in Court---Grant of injunction against encashment of performance bond---Validity---Specific procedure had been laid down in arbitration agreement for resolution of disputes between parties, which had to be resorted to before approaching Court under S. 20, Arbitration Act, 1940---Applicant had made a reference to Engineer, but without awaiting his decision had approached Court without showing any plausible and cogent justification therefor---Applicant had adopted premature course of action---Making of such a restraint order was not warranted---High Court accepted appeal and set aside impugned order in circumstances.

Messrs Ayaz Builders through Attorney v. Board of Trustees of the Karachi Port Trust and another 2008 CLC 726; Shipyard K. Damen International v. Karachi Shipyard and Engineering Works Ltd. PLD 2003 SC 191; Heavy Mechanical Complex (Pvt.) Ltd. Taxila v. Attock Industrial Products Ltd. Rawalpindi PLD 2003 SC 295; Messrs Atlas Cables (Pvt.) Limited through Director v. Water and Power Development Authority through Chairman an 2 others PLD 2008 Lah. 238 rel.

Umer Sharif for Appellant.

Nemo for Respondents

Date of hearing: 15th July, 2008.

2008 M L D 1639

[Lahore]

Before Mian Saqib Nisar and Mian Hamid Farooq, JJ

MUHAMMAD SIDDIQUE---Appellant

Versus

MUHAMMAD IBRAHIM and others---Respondent

Regular First Appeals Nos. 113 and 153 of 1994 decided on 4th July, 2003.

Civil Procedure Code (V of 1908)---

----S. 96---First Appeal---Trial Court had exhaustively embarked upon all the issues involved in the case, appreciated the oral as well as documentary evidence on record in its true perspective and had reached to the proper conclusions, which were not open to exception---Trial Court in detail, discussed each and every aspect. of the case and documents on record and after believing or disbelieving the same passed the impugned judgment---Evidence produced by the parties read in juxta position with the findings given by the Trial Court showed that the inferences drawn by the Trial Court were in accordance with the evidence on record---Findings rendered by the Trial Court were not only in accordance with the record of the case, but the same were also in consonance with the law on the subject---Impugned judgment was legal, unexceptionable, apt to the facts and circumstances of the case and did not call for interference by High Court---Appeal was dismissed.

Muhammad Nawaz for Appellant.

S.M. Masud for Respondent.

Date of hearing: 10th April, 2003.

2008 M L D 1659

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD NAEEM ABBASI---Appellant

Versus

Mst. MUHAMMAD JAN---Respondent

S.A.O. No.18 of 2008, heard on 27th June, 2008.

West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---

----S. 13(6)---Order of Rent Controller directing tenant to deposit future rent before 15th of each month---Rent for month of October, 2007 deposited on 8th November, 2007---Validity---Rent for a month would become due upon its expiry and upon becoming due would become payable before 15th day from such date---Order of Rent Controller directing deposit of rent for same month before 15th of same month would be illegal---Rent for month of October, 2007 had become due for payment before 15th of next month i.e. 15-11-2007---Tenant, held, had not committed any default within meaning of S.13(6) of West Pakistan Urban Rent Restriction Ordinance, 1959.

Mehboob Illahi v. Saqib Mehmood Riaz and others 1990 SCMR 1688 ref.

Kaleem-ud-Din Malik for Appellant.

Ch. Rizwan Azar Gondal for Respondent.

Date of hearing: 27th June, 2008.

2008 M L D 1673

[Lahore]

Before Syed Shaheen Masud Rizvi, J

Mst. SAIRA ZULFIQAR---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, MULTAN and others ---Respondents

Writ Petition No. 6327 of 2006, decided on 17th June, 2008.

West Pakistan Family Courts Act (XXXV of 1964)---

----S.5---Muslim Family Laws Ordinance (VIII of 1961), S.5---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Recovery of dower amount---Nikahnama, interpretation of---Entries in registered Nikahnama---Wife sought recovery of Rs.20,00,000 as dower amount---Family Court decreed the suit in favour of wife to the extent of Rs.20,00,000 and in lieu of dower wife was entitled to take 50 tolas of gold ornaments, agricultural land and 1/2 share in a residential house---Judgment and decree passed by Family Court was maintained by Lower Appellate Court and appeal filed by wife was dismissed-Plea raised by wife was that 50 tolas of gold ornaments, agricultural land and 1/2 share in a residential house were in addition to dower amount as the same were incorporated in Nikahnama through Iqrarnama---Validity---Iqrarnama and its contents had become integral part of Nikahnama and as such the contents/entries in Nikahnama were to be read in conjunction with Iqrarnama---Marriage being a contract, the parties to the marriage were at liberty to enter into the terms of their choice---Two Courts below could not interpret the terms on their own when such interpretation specifically stood negated by the contents of Nikahnama and Iqrarnama--Both the documents revealed that amount of dower of Rs.20,00,000 was independent in itself and property and gold ornaments were in addition to the amount of Haq-ul-Mehar---Findings of both the Courts below that gold ornaments and the property were in lieu of amount of Haq-ul-Mehar were totally falsified by evidence on record---Both the Courts below erroneously and illegally held that the wife was not entitled to the property mentioned in Nikahnama and Iqrarnama---High Court, in exercise of Constitutional jurisdiction, set aside the findings of both the courts below to the extent of properties mentioned in their judgments---High Court modified the judgments and decrees passed by both the Courts below and included properties and gold ornaments in the decree as envisaged in Nikahnama with Iqrarnama---Constitutional petition was allowed accordingly.

Muhammad Akbar Sajid Chaudhry for Petitioner.

Shakeel Javed Chaudhry for Respondent.

2008 M L D 1682

[Lahore]

Before M.A. Zafar, J

MUHAMMAD IRFAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1296-B of 2008, decided on 13th March, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/148 & 149---Bail, refusal of---Accused was nominated in promptly lodged F.I.R. with a specific role of causing injuries to the complainant---Four injuries were found on the person of complainant and six injuries on the person of deceased---Trial Court was to determine whether accused shared the common object or not---Accused, after the dismissal of pre-arrest bail from the Trial Court, became fugitive---Such was a strong circumstance which would go against accused while considering bail which was an extraordinary relief---Prosecution had stated that Chhuri had also been recovered from the accused---Case of co-accused, who were granted bail, was quite distinguishable; in absence of any good ground for grant of bail to the accused, his bail petition was dismissed.

Imtiaz Shahid for Petitioner.

Mrs. Farzana Khan, D.P.G.

2008 M L D 1684

[Lahore]

Before Mazhar Hussain Minhas, J

ABDUL WAHEED---Petitioner

Versus

RIASAT ALI---Respondent

Civil Revisions Nos.458 and 412 of 2006, heard on 17th June, 2008.

Civil Procedure Code (V of 1908)---

----O.XXXVII, R.4---Limitation Act (IX of 1908), Arts. 164 & 181---Ex parte decree, setting aside of---Limitation---Defendant appeared before Trial Court and sought leave to defend the Suit---During proceedings, defendant as well as the his counsel absented---Ex parte evidence was recorded and suit was decreed in favour of plaintiff---When defendant was arrested, fourteen months later, during execution of decree, he sought setting of ex parte decree---Trial Court set aside the decree subject to payment of cost and furnishing of Bank guarantee to the extent of decretal amount---Validity---Any limitation for filing application to set aside ex parte decree is not provided in O.XXXVII, R.4, C.P.C.---No ground for setting aside the ex parte decree particularly when there was no application for condonation of delay in filing the application---In absence of sufficient ground for setting aside the ex parte decree, Trial Court had travelled beyond its jurisdiction while taking lenient view in favour of defendant and allowing his application---High Court in exercise of revisional jurisdiction set aside the order passed by Trial Court---Revision was allowed accordingly.

Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631; Messrs Syed Match Co. (Pvt.) Ltd. through Managing Director v. Messrs Century Paper and Board Mills Ltd. through Director PLD 2002 Lah. 155; Yasin Industries and others v. National Bank of Pakistan 1989 ALD 443 and Syed Mahboob Hussain Shah v. Messrs Commerce Bank Ltd. 1982 CLC 20 ref.

P.N. Fills Ltd. And another v. Overseas Fils Corporation Ltd. AIR 1958 Bom. 10 rel.

Rana Abdul Majeed for Petitioner.

Malik Javaid Akhtar Wains for Respondent.

Date of hearing: 17th June, 2008.

2008 M L D 1692

[Lahore]

Before Khawaja Farooq Saeed, J

Mst. SHAH JAHAN---Petitioner

Versus

ADDITIONAL DISTRICT J14DGE, RAWALPINDI and another---Respondents

Writ Petition No. 1037 of 2007, heard on 27th May, 2008.

(a) West Pakistan Family Courts Act (XXXV of 1964)---

----S. 5 & Sched.---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Suit for recovery of past maintenance and gifted articles---Dismissal of suit by Courts below---Validity---Jewelry given to wife as gift by husband was mentioned in Cl. 17 of Nikahnama---Evidence on record showed that husband used to beat wife habitually as a result of which she had to undergo for abortion---Reconciliation efforts could not succeed due to resistance by husband and his family---Wife while going to hospital for abortion having pain in abdomen because of beating by her husband could not be believed to have taken along with her gold ornaments---Husband had not informed his wife's parents of her admission in Hospital for abortion---Going of wife to her parents' house after abortion was normal, but she had not been allowed to come back to her abode by her husband or his parents---Evidence on record did not support husband's claim that jewelry was still with his wife---Wife had not left her husband at her option, rather husband had deserted her---Gross injustice had been caused as a result of non-reading and misreading of evidence by Courts below---High Court set aside impugned judgments and directed husband to hand over jewelry or its price to his wife within specified time and also to pay her maintenance till date of passing of judgment by Family Court, and after that, if she did not opt to perform conjugal rights, then she would not be entitled to any maintenance.

The Secretary to the Government of West Pakistan, Communication and Works Department v. Gulzar Muhammad PLD 1969 SC 60 ref.

Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617 rel.

(b) West Pakistan Family Court Act (XXXV of 1964)---

----S. 5 & Sched.-Constitution of Pakistan (1973), Art. 199---Constitutional petition---Order of Family Court---Interference by High Court in exercise of constitutional jurisdiction under Art. 199 of the Constitution---Scope---Interference in such matter would not be as a matter of right---Where impugned order/decision was illegal or result of misreading or non-reading of evidence or subordinate Courts exercised jurisdiction improperly, then constitutional jurisdiction of High Court could be invoked.

Rizwan Elahi Sheikh for Petitioner.

Niaz Mehmood Raja for Respondent.

Date of hearing: 27th May, 2008.

2008 M L D 1717

[Lahore]

Before Zubda-tul-Hussain and Muhammad Ahsan Bhoon, JJ

MUHAMMAD SHAFIQUE---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 10, 16, 17 of 2003, Criminal Revision Nos.23, 24 and Murder Reference No.5 of 2003, decided on 4th August, 2008.

(a) Penal Code (XLV of 1860)---

----Ss. 302/324/148/144---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Motive in the case being of twofold dimensions, did not lend convincing support to the prosecution story---Motive could not be the prime determining factor regarding the liability for the occurrence, especially in a murder case---Most of the prosecution witnesses, who were also the eye-witnesses of the occurrence had received multiple injuries on various parts of their bodies---Almost same was the position in relation to the various accused persons as they were also injured---Both the parties had tried to suppress hard realities in that behalf---Prosecution witnesses, no, doubt had inter se relationship with each other but mere relationship of the witnesses with each other could not be a ground to impeach their credibility---Neither a very strong motive existed for falsely implicating accused nor the presence of the persons of both the parties being in dispute, deposition of the prosecution witnesses were to be given weight in total perspective of the case leaving aside their relationship---None of the witnesses was an outsider nor was any accused an alien to them; all of them hailed almost from the vicinity of the place of occurrence, which had rendered evidence and the presence of the witnesses natural and in line with the logical circumstances---As to under what circumstances accused indulged in stabbing deceased, was not so appropriately explained on record by any of the parties---Persons from both sides received injuries in the occurrence, but despite that they did not come forward with the whole truth in an attempt to claim self-defence and attribute aggression to the opponent party, deliberately concealing the true facts---Even the investigation tended to show that a free fight had emerged between the parties at the spot---Ocular account of the case as put forth by the prosecution could validly be taken into account for passing an order of conviction to accused---No reason was available to discard the evidence of injured prosecution witness---Mere fact that accused party also received injuries, could not lead to an irresistible conclusion that they had responded to the aggression of the complainant party and had charged upon them in an attempt to save their lives---Plea of self defence, also could not be made out from the injuries respectively received by the parties---Occurrence originated suddenly and the whole episode was spontaneous and emergent---Plea of the right of private defence raised by accused, was not admissible in the circumstances of the case---Ocular account, did ,find corroboration from the medical evidence---None of the witnesses of the recovery of `dagger' had any enmity or ill-will against accused persons---Case was that of sudden fight and circumstances did not show that accused had a common object or intention to cause murder of deceased---Occurrence having taken place in the broad-daylight, there could be no dispute regarding to the identity of the parties---Finding of conviction of accused was upheld, however peculiar circumstances of the case brought about a situation of mitigation in favour of accused and they deserved leniency---Case against accused falling under S.302(c), P.P.C., sentence of death awarded to accused, was converted into imprisonment already undergone by him.

Ahmad Hassan and another v. The State 2006 YLR 772 ref.

(b) Penal Code (XLV of 1860)---

---Ss. 302, 324, 148 & 149---Appreciation of evidence---Insufficiency of motive---In murder cases the witness or insufficiency of motive or even absence of motive, could not be considered as a circumstance to justify the acquittal or mitigation of sentence when occurrence was fully established by the eye-witnesses and was duly supported by the corroborative evidence.

Muhammad Nisar v. The State 2006 SCMR 161 ref.

(c) Penal Code (XLV of 1860)---

----Ss. 302/324/148 & 149---Appreciation of evidence---Relationship of witnesses with deceased or their inter se relationship---Effect---No doubt prosecution witnesses inter se and with the deceased had established relationship, but it could hardly be disputed that mere relationship of the witnesses with each other could not be a ground to impeach their credibility---Mere relationship of witnesses with the deceased or their inter se relationship would not render them as interested or partisan witnesses---Factor of relationship could injure the prosecution story only if there was established motive or there was a very strong motive for falsely implicating accused or there were such circumstances that would lead to conclude the presence of such witnesses at the spot totally improbable.

Abdul Khalid and another v. The State 2002 SCMR 1232; Abdur Rauf v. The State and another 2003 SCMR 522 and Noor Muhammad v. The State and another 2005 SCMR 1958 rel.

(d) Penal Code (XLV of 1860)---

----Ss. 96, 97 & 99---Private defence, right of---Scope and extent---Self-­defence was a multi-dimensioned law---Primarily it was in the nature of an offence as well as the sequence of the events, which help to determine the right of self-defence---Right of private defence, did not provide a licence for an unlimited description to go on causing excessive harm to the opposite party-Such right would commence only when reasonable apprehension arose from an attempt or threat to commit offence---Right could also continue as long as such apprehension or danger to the body continued.

(e) Penal Code (XLV of 1860)---

----S. 302/34---Appreciation of evidence---Site plan, nature of---Site plan was not a substantial piece of evidence and in order to rely upon it, direct and positive evidence duly supported by the relevant circumstances, must be available.

Mst. Shamim Akhtar v. Fiaz Akhtar and 2 others PLD 1992 SC 211 ref.

Malik Sadiq Mahmud Khuram for Appellant.

M. Abdul Manan for the Complainant.

Ch. Muhammad Ashraf Mohondra A.P.G.

Date of hearing: 4th August, 2008.

2008 M L D 1732

[Lahore]

Before Khurshid Anwar Bhinder, J

MASOOD HUSSAIN SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 4240/B of 2008, decided on 8th August, 2008.

(a) Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.365-B---Bail, grant of---Abductee in her first statement recorded under S.164, Cr.P.C. had exonerated the accused stating that she had married him with her free will and consent and he had not abducted her, but in her subsequent statement recorded before the Magistrate she had implicated the accused with the commission of the offence---Latter statement made before the Magistrate had been endorsed by the abductee even before High Court---Medical examination of the abductee had revealed that she was used to sexual intercourse prior to the occurrence---Credibility of the abductee could not be relied upon in view of contradictory and doubtful statements made by her, which were neither trustworthy nor confidence-inspiring---Accused, prima facie, having not found to be involved in the commission of the offence, his right of liberty could not be jeopardized---Case of accused needed further inquiry into his guilt---Accused was admitted to bail in circumstances.

Muhammad Jahangir Badar v. The State PLD 2003 SC 525; Muhammad Nawaz v. The State 2002 SCMR 1381; Muhammad Hanif v. Shafqat Nazir and others 2007 SCMR 1857; Khalid Iqbal v. The State 2005 YLR 856 and Muhammad Arshad v. The State 2004 PCr.LJ 1876 ref.

Tariq Naeem v. The State and others 2007 PCr.LJ 1015 and Zaheer Ahmad and another v. The State 2005 YLR 1664 rel.

(b) Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.365-B---Bail at trial stage---Principle---Bail of accused cannot be withheld even at the trial stage when, prima facie, no case is made out against him.

Tariq Naeem v. The State and others 2007 PCr.LJ 1015 and Zaheer Ahmad and another v. The State 2005 YLR 1664 rel.

Nasim Sabir Chaudhry for Petitioner.

M.M. Iqbal for the Complainant.

Naeem Tariq Sanghera, DPG with Umar Draz, A.S.-I.

2008 M L D 57

[Peshawar]

Before Ijaz ul Hassan Khan, J

LAND ACQUISITION COLLECTOR and others---Appellants

Versus

MUMRAIZ KHAN and others---Respondents

R.F.A. No, 164 of 2005, decided on 29th October, 2007.

Land Acquisition Act (I of 1894)---

----Ss. 4, 11, 18, 23 & 54---Acquisition of land---Determination of compensation---Enhancement of amount of compensation---Reference to Referee Court---Appeal---Landowners dissatisfied with amount of compensation as determined by Land Acquisition Collector, filed objection petition and matter was referred to Referee Court---Referee court keeping in view the usefulness of the acquired land, its utility and high potential value for commercial and residential purpose, its accessibility to District Headquarter Hospital and its proximity to road, enhanced the amount of compensation of said land---Authority had filed appeal against said enhancement---Validity---While determining amount of compensation, court was to consider evidence brought on record by the parties---Referee Court had adverted to every aspect of the case and had rightly decided same and rendered a well reasoned judgment, which was not open to any legitimate exception---Counsel for Authority could not point out any misreading or non-reading of evidence by the Referee Court---Judgment of the Referee Court could not be interfered with in appeal, in circumstances.

Sikandar Rashid for Appellants.

Gul Sadbar for Respondents.

Date of hearing: 29th October, 2007.

2008 M L D 698

[Peshawar]

Before Muhammad Alam Khan, J

AYAZ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1365 of 2007, decided on 24th January, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail, refusal of---Accused though had not been charged in the F.I.R., but the police, while cordoning the area had intercepted the motorcar allegedly used in the occurrence where encounter took place---Cross-firing took place from both the sides in which accused was arrested and F.I.R. of that occurrence was lodged under Ss.324/353/427, 420/34, P.P.C. and Ss.13 of West Pakistan Arms Ordinance, 1965---Statement of complainant was recorded under S.164, Cr.P.C. in which he had duly charged accused for committing the offence---Accused had also pointed out the place of occurrence, where complainant had been deprived of a mobile phone and cash amount---Offence against accused was heinous and more serious was the way and venue of occurrence, which had become a common routine in the society and that had weakened the society---Offence carried a severe punishment of which accused was charged, though no hurt had been caused, to anyone but an amount of more than the 'Nisab' had been taken away---Reasonable grounds, in circumstances existed to believe that accused had committed the offence, which came within the prohibitory clause of S.497, Cr.P.C.---Bail was refused in circumstances.

Javed A-Alam for Petitioner.

Complainant in person.

Saeed Shangla Addl. A.-G. for the State.

Date of hearing: 24th January, 2008.

2008 M L D 786

[Peshawar]

Before Syed Musadiq Hussain Gilani, J

MUHAMMAD ANSARULLAH---Petitioner

Versus

MASOOD BAKHTIAR and others---Respondents

Civil Revision No. 1047 of 2007, decided on 1st April, 2008.

Civil Procedure Code (V of 1908)---

----O.VII, R.11---Rejection of plaint---Suit for recovery of amount as damages for defamation, mental torture and malicious prosecution--Plaintiffs had filed suit for recovery of Rs.4 crore as damages for defamation, mental torture and malicious prosecution against defendant--Defendant filed application under O.VII, R.11 C.P.C. for rejection of plaint, which was dismissed by the Trial Court---Validity---Question involved in the case was a question of fact, which was to be determined after recording pro and contra evidence of both the parties---Plaintiffs had properly valued the suit for the purpose of court-fee and jurisdiction and also disclosed the cause of action which was not barred by law---Discretion which was neither perverse nor arbitrary had been properly exercised by the court below---In absence of any illegality warranting interference, revision petition was dismissed.

Petitioner in person.

2008 M L D 906

[Peshawar]

Before Syed Yahya Zahid Gillani and Muhammad Alam Khan, JJ

THE STATE---Petitioner

Versus

SIRAJ KHAN---Respondent

Criminal Revision No. 9 of 2007, decided on 14th February, 2008.

Control of Narcotic Substances Act (XXV of 1997)---

----S. 9(c)---Sentence, reduction in---Mitigating circumstance---Petition for enhancement of punishment---Petition had been moved by State for enhancement of sentence awarded to accused by the Trial Court---Trial Court, taking lenient view sentenced accused to imprisonment for the period already undergone---Alleged recovery was effected from the personal search of accused while he was travelling in a bus---Accused was a young boy of tender age and he had no previous background of involvement in drug trafficking---Trial Court, in circumstances had rightly taken a lenient view and young age of accused was a mitigating circumstance which had convinced the Trial Court to award a meager sentence---Judgment of the Trial Court was well-founded, convincing and was based on sound appreciation of evidence, which could not be interfered with in revision petition.

Salah-uddin Khan, Deputy Attorney General for the State.

2008 M L D 974

[Peshawar]

Before Muhammad Alam Khan, J

AKRAM KHAN and 3 others---Petitioners

Versus

NADIR KHAN and another---Respondents

Criminal Miscellaneous (Q) No.51 of 2007, decided on 4th February, 2008.

Criminal Procedure Code (V of 1898)--

----Ss. 561-A, 145 & 146---Quashing of order---Respondent filed a complaint against petitioners under S.145 Cr.P.C. alleging therein that he was in possession of his share in khata being in his self-cultivating possession; and that petitioners were trying to cut the sugar cane crops and were interfering in his possession; it was further alleged that due to that act of petitioners there was possibility of breach of peace and that petitioners should be restrained from interfering in the possession of respondent---Judicial Magistrate to whom matter was referred after recording evidence of the parties, dismissed the complaint filed by the respondent---Revisional Court concluded that the property being joint, every co-sharer was entitled to have a share in each and every khasra number and set aside order of Judicial Magistrate---Validity---Contentions that provisions of S.145, Cr.P.C. were not applicable to the joint ownership were without any substance---Even in the nature of joint khata any party could be in exclusive possession of their respective shares due to private partition, which could be ascertained from the revenue record---Otherwise too the provisions of S.145, Cr.P.C. were applicable to the joint khata because object of S.145, Cr.P.C. was the prevention of dispute over immovable property likely to cause a breach of peace---Land subject-matter of dispute could be attached only when it was proved on the record that none of the parties had proved the actual physical possession on the spot under the provisions of S.146, Cr.P.C.---Magistrate as well as Revisional Court were bound under the law to determine as to which of the party was in actual and physical possession on the spot---Impugned order of the Revisional Court being without jurisdiction and against the provisions of S.146, Cr.P.C. was quashed and case was remanded to be decided afresh after giving opportunity of hearing to the parties.

Abdus Salam v. Abdul Qadir PLD 1967 Dacca Page-715; Ghulam Masih alias Guman and others v. Ch. Abdul Rehman and 3 others 1973 PCr.LJ 439; Malik Fateh Muhammad Tiwana v. The Crown and others PLD 1949 Lah. 397 and Muhammad Anwar v. Muhammad Aslam 1984 PCr.LJ 2394 ref.

Petitioner No.4 in person.

Respondent in person and Sardar Ali Raza, Deputy Advocate General for the State.

Date of hearing: 23rd January, 2008.

2008 M L D 991

[Peshawar]

Before Muhammad Alam Khan, J

HAZRAT KHAN---Applicant

Versus

THE STATE---Respondent

Bail Application No. 24 of 2008, decided 19th February, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497--Penal Code (XLV of 1860), Ss.381-A, 411, 148 & 149---West Pakistan Arms Ordinance (XX of 1965), S.13---Bail, grant of--Offences under which accused had been charged being not compoundable, compromise between the parties could not be made a ground for bail in non-compoundable offences---Section 381-A, P.P.C.' carried a maximum sentence of seven years while punishment provided under S.13, West Pakistan Arms Ordinance, 1965 also did not come within the prohibitory clause of S.497, Cr.P.C.---Grant of bail, in such like cases, was a rule and refusal of same was an exception to that rule---Accused was admitted to bail, in circumstances.

Niaz Muhammad for Applicant.

Mrs. Sakina Fida for Respondent.

Date of hearing: 19th February, 2008.

2008 M L D 1002

[Peshawar]

Before Raj Muhammad Khan and Syed Yahya Zahid Gillani, JJ

ROOH-ULLAH and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos.659 and 654 and Criminal Revision No.179 of 2007, decided on 3rd April, 2008.

(a) Control of Narcotic Substances Act (XXV of 1997)---

----S.15---Appreciation of evidence---Benefit of doubt---Accused was not arrested at the time of recovery of the "Poppy Pods"---Two co-accused had allegedly disclosed name of the accused before the police as their associate/owner of the material---Poppy Pods or other such material was not recovered from the person of said accused or on his pointation---Said accused had been convicted simply on the basis of the allegations of co-accused made before Investigating Officer---That part of evidence was not admissible on three grounds; firstly, that it was hearsay evidence; secondly it was part of a confession before Investigating Officer and thirdly it was statement of a co-accused only---No other evidence was available to connect said accused with the crime---Case of accused was of no evidence and he had been convicted merely on the basis of presumption, which was not permissible under the principles governing administration of criminal justice---Case of accused being highly doubtful he was not proved to be connected with the case, he could not be convicted on available record---Accused was acquitted extending him benefit of doubt.

(b) Control of Narcotic Substances Act (XXV of 1997)---

----Ss. 4, 5, 15 & 9(c)---Appreciation of evidence---Trial Court while convicting and sentencing two accused, had adopted view that when both of them were arrested, they Were gathering opium Poppy as envisaged in S.4 of Control of Narcotic Substances Act. 1997---Said opinion of the Trial Court could not be agreed to because putting huge quantity of crushed Poppy Pods and straws' in vehicle and taking it from one place to another, was a process, which did not fall within the meaning ofgather' used in S.4 of Control of Narcotic Substances Act, 1997---Both said accused persons; in circumstances were wrongly held guilty. under S.4 of Control of Narcotic Substances Act, 1997---Conviction of said two accused which was on wrong premises, was not sustainable---Conviction and sentence of said two accused, were set aside and their case was remanded for retrial and fresh decision according to law.

(c) Interpretation of statutes---

----Doctrine of "ejusdem generis"---Meaning and application---Doctrine of `ejusdem generis' would be attracted where there were general words, following particulars and specific words---General words must be confined to things of the same kind as those specified.

Jumat-e-Islami Pakistan v. Federation of Pakistan PLD 2000 SC 111 ref.

Roohullah Appellant through his father.

Appellant Zainullah through his brother.

Salahuddin Khan, D.A.-G for the State.

Date of hearing: 15th January, 2008.

2008 M L D 1048

[Peshawar]

Before Muhammad Alam Khan, J

KAMAL-UD-DIN---Petitioner

Versus

FAKHR-UD-DIN and another---Respondents

Criminal Miscellaneous No. 163 of 2007, decided on 11th February, 2008.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 200---Illegal Dispossession Act (XI of 2005), Ss.3 & 7---Quashing of order---Petition for---Respondent/complainant filed complaint under Ss.3 & 7 of Illegal Dispossession Act, 2005 to the effect that petitioner had illegally and forcibly occupied the land of the complainant while petitioner had got no concern with said property---Trial Court, after complying with the provisions of S.200, Cr.P.C. issued notice to petitioner, who on appearance before the Trial Court, raised objection to the maintainability of complaint---Trial Court having over-ruled said preliminary objection, petitioner had filed petition for quashment---Complaint filed by the complainant, on the face of it, found its support from revenue record, wherein respondent had duly been recorded as owner in possession---Trial Court had only issued notice in the main complaint and no final order or any substantial order had been passed by the Trial Court and bail bonds required from petitioner, were only to secure his attendance before the court---Order of the Trial Court, was just, legal and in consonance with the established principles of law and was not liable to interference in jurisdiction of the Court under S.561-A, Cr.P.C.---Petition was dismissed.

Zahoor Ahmad and 5 others v. The State and 3 others P.L.D. 2007 Lah. 231 and Rahim Tahir v. Ahmad Jan and two others P.L.D. 2007 SC 423 rel.

Petitioner in person.

Muhammad Saeed Khan A.A.-G. for Respondent.

Date of hearing: 23rd January, 2008.

2008 M L D 1121

[Peshawar]

Before Dost Muhammad Khan, J

FARMAN ALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.991 of 2007, decided on 12th October, 2007.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, grant of---Trial of case had commenced---Accused was suffering from hepatitis-B, his sickness was of such a nature which required very specialized management and treatment which was not at all available inside the jail and being a fatal disease, if same was not effectively managed and properly treated, could take a toll on his life---Offence for which accused was charged provided maximum punishment of 14 years and being a first offender, question whether the Trial Court would opt for awarding the maximum or the lesser sentence also made it a border line case---Case for grant of bail having been made out mainly on the ground of sickness, accused was admitted to bail.

Noor Alam Khan for Petitioner.

Salahuddin, D.A-G for the State.

Date of hearing: 12th October, 2007.

2008 M L D 1358

[Peshawar]

Before Syed Musadiq Hussain Gilani, J

INAYAT ULLAH KHAN---Petitioner

Versus

THE STATE through Advocate-General N.W.F.-P. and another---Respondents

Criminal Miscellaneous No.333 of 2008, decided on 23rd June, 2008.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S.302/34---Bail, refusal of---Single injury---Commencement of trial---Although three persons were charged for committing murder but deceased had received single injury---Validity---Direct ocular evidence was supported by medical evidence and trial of accused had already commenced---Case was covered by prohibitory clause of S.497, Cr.P.C.---Single injury on the person of deceased and charge of firing against three persons was not a good ground for release of accused on bail---Bail was refused in circumstances.

2003 PCr.LJ 1149; 2002 PCr.LJ Pesh. 1062 (B); 1995 SCMR 1765 (F); 2006 PCr.LJ 184; 2005 PCr.LJ 8 and 1996 SCMR 931 ref.

Salamat Shah for Petitioner.

Shahbana Tajik for Respondent.

Muhammad Qasim Khattak for Complainant.

2008 M L D 1448

[Peshawar]

Before Muhammad Alam Khan, J

MUHAMMAD IDREES---Appellant

Versus

MUHAMMAD KASHIF---Respondent

F.A.O. No.7 of 2007, decided on 11th June, 2008.

Civil Procedure Code (V of 1908)---

----O.IX, R.13, O.XXXVII, Rr.2, 3 & O.XLIII, R.1(c)---Suit for recovery of amount on the basis of pro note---Application for leave to defend---Dismissal of application---Ex parte decree---Setting aside of such decree---Defendant appeared before the Trial Court and submitted application seeking leave of the court to defend the suit---On adjourned date of hearing neither defendant nor his counsel having appeared, the Trial Court not only dismissed application for seeking leave to defend suit, but also decreed the suit ex parte---Validity---When ex parte decree was passed, matter before the court was fixed for hearing of an interim application for leave to defend suit and the court could only restrict itself to proceedings on the interim application---Act of the court dismissing the application and simultaneously decreeing the suit was illegal---While submitting the application for setting aside of the ex parte decree, defendant had agitated the disputed question of fact in the application which required the recording of proof and disproof and the order of the Trial Court summarily rejecting application, was violative of principles of natural justice---Once a disputed question of law and fact was agitated in the application for setting aside the ex parte decree, the Trial Court was bound to afford an opportunity to the parties to lead pro and contra evidence---Impugned order was set aside and case was sent back to the Trial Court with direction to afford an opportunity to the parties to lead pro and contra evidence with respect to their contentions raised in the application for setting aside the ex parte decree.

Muhammad Aslam v. Falak Sher 1990 CLC 1119 Lah. and Hassan Din and another v. Jalal Din and 2 others 1992 CLC 33 Lah. ref.

Tariq Aziz Baloch for Appellant.

Saleem Ullah Khan Ranazai for Respondent.

Date of hearing: 26th May, 2008.

2008 M L D 1484

[Peshawar]

Before Muhammad Alam Khan, J

GHULAM QASIM---Petitioner

Versus

INAYAT ULLAH alias TULLU and another---Respondents

Criminal Miscellaneous Bail Cancellation Petition No. 28 of 2008, decided on 19th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.365-A/109---Cancellation of bail, application for---Impugned order of granting bail to respondent/accused was based on sound footings---Co-accused having been allowed bail by the court below and maintained by the High Court, on the principle of consistency, accused being equally charged for the alleged offence, was entitled to the discretionary relief of bail---Available facts and circumstances showed that the case of accused being of further inquiry, impugned order did not warrant inference by the High Court---Lower Court had exercised its discretion properly and in accordance with the settled norms of justice---Very strong and exceptional grounds were required for cancellation of bail, which were lacking in the present case---Principles for cancellation of bail were different from the considerations for the grant of bail---Section 497(5), Cr.P.C. did not command the court to cancel the bail even if the offence was punishable with death or imprisonment for life and even if the grant of bail was prohibited under S.497(1), Cr.P.C---Discretion was left with the court under S.497(5), Cr.P.C. which was pari materia with the principles enunciated applicable to the setting aside of the orders of acquittal.

Muzaffar Iqbal v. Muhammad Imran Aziz and others 2004 SCMR 231 rel.

Muhammad Karim Anjum for Petitioner.

Muhammad Ismail Alizai for the Respondent.

Sanaullah Shamim, D.A.-G. for the State.

Date of hearing: 3rd June, 2008.

2008 M L D 1492

[Peshawar]

Before Muhammad Alam Khan, J

INAM ULLAH---Petitioner

Versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous Bail Petition No.37 of 2008, decided on 7th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Further inquiry---Occurrence which had taken place at night, neither was seen by the eye-witnesses nor even by the complainant---Complainant had taken totally a different stand about the occurrence than the one alleged by her in her first report---No motive had been assigned to accused---Plea of the complainant that accused was involved in different criminal cases and remained fugitive from law, could not be made basis for refusal of bail to him---Co-accused who was attributed identical role having already been released on bail by the High Court, principle of consistency was also attracted to the case of accused-.--Facts and circumstances of the case showed that prima facie, accused was not linked with the commission of the offence---Tentative assessment of the materials brought on record, prima facie, had made case of accused to be of the further inquiry, entitling him to the concession of bail---Accused was admitted to bail, in circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 & Abdul Salam v. The State 1980 SCMR 142 and Muhammad Afzal alias Bodi v. The State 1979 SCMR 9 rel.

Sanaullah Khan Gandapur for Petitioner.

Sanaullah Shamim, D.A.-G. for the State.

Saleemullah Ranazai for Respondents.

Date of hearing: 25th April, 2008.

2008 M L D 1513

[Peshawar]

Before Muhammad Alam Khan, J

AKHTAR MAHMOOD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Petition No.23 of 2008, decided on 6th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.420, 468 & 471---Pre-arrest bail, confirmation of---Accused was a bona fide purchaser of the vehicle in question vide sale agreement duly attested by its marginal witnesses and attested by the Notary Public---Report of `Citizen Police Liaison Committee Central Reporting Cell' proved that said vehicle was neither snatched nor stolen, but was duly owned by the accused---Excise and Taxation Officer after due verification had allowed the transfer of the vehicle in question in the name of accused---Alleged tampering of chassis number of vehicle in question, could not be conclusively determined---Accused prima facie was held entitled to grant of bail before arrest---When the documents of title regarding the vehicle in question were presented before the Investigating Officer after due investigation, he was duly bound to have formed a correct opinion, which was missing in the case, which constituted mala fide on the part of Investigating Agency---Bail before arrest already granted to accused was confirmed, in circumstances.

Khizar Hayat Tiwana v. The State 2005 YLR 1666; Sohar Ashraf Farooq v. The State 2005 PCr.LJ 553 and Bashir Ahmad Patwari. v. The state 1998 PCr.LJ 347 rel.

Muhammad Yousaf Khan for Petitioner.

Farooq Akhtar for the State.

Date of hearing: 6th May, 2008.

2008 M L D 1527

[Peshawar]

Before Muhammad Alam Khan, J

GHULAM RASHEED---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No. 47 of 2008, decided on 8th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.409, 411, 419, 420, 468, 471 & 477-A---Bail, grant of---Further inquiry---Accused was not nominated in F.I.R. by the complainant and he was only under arrest on the statement of co-accused, recorded under S.161, Cr.P.C.---Validity---Statement of co-accused could not be used against other accused involved in the occurrence---No specific role had been assigned to accused---Facts and circumstances of the case revealed that case of accused was arguable for the purposes of bail and fell within the ambit of further inquiry---Accused was admitted to bail, in circumstances.

Saleemullah Khan Ranazai for Petitioner.

Farooq Akhtar for the State.

Respondent No. 2 in Person.

Date of hearing: 7th May, 2008.

2008 M L D 1552

[Peshawar]

Before Muhammad Alam Khan, J

SAEEDULLAH and another-Petitioners

Versus

THE STATE and another---Respondents

Criminal Miscellaneous Bail Petition No. 69 of 2008, decided on 14th May, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 380, 411 & 457---Bail, grant of---Further inquiry---Prima facie, accused persons, at the most could be booked for an offence under S.411, P.P.C., punishment wherefor provided under the law was not hit by the prohibition contained under S.497, Cr.P.C. and was bailable---Maximum sentence provided for an offence should not be kept in mind while granting bail to accused--If the court on the data discernible from the record would come to the conclusion that maximum punishment could not be awarded to accused, the concession of bail could be extended to him in the given circumstances---While tentatively assessing, the case of accused, it would go out of the embargo contained under S.497, Cr.P.C. and was held to be of further inquiry---Accused, was admitted to bail, in circumstances.

Rab Nawaz Awan for Petitioner.

Sanaullah Khan Shamim Gandapur, D.A.-G. for the State.

Complainant in person present.

Date of hearing 14th May, 2008.

2008 M L D 1565

[Peshawar]

Before Shahji Rahman Khan and Muhammad Alam Khan, JJ

INAM ULLAH KHAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.17 of 2008, decided on 21st May, 2008.

Control of Narcotic Substances Act (XXV of 1997)---

---S. 9(c)---Appreciation of evidence---Prosecution case was full of doubts and defects and material contradictions existed in statements of the prosecution witnesses---Complainant while appearing as prosecution witness had stated that after completion of the requisite formalities he had himself drafted the Murasila, but in cross-examination he had taken a different stand by stating that under his dictation, the Murasila was drafted by his subordinate---Stance of the complainant was that he himself searched the coach and deboarded all the passengers therefrom during search proceedings---Complainant was negated by statement of prosecution witness who had states[ that only the driver of the coach was deboarded and during search of the vehicle the Charas was recovered while none of the passengers was either searched or deboarded therefrom---Such contradiction in the statements of the prosecution witnesses were sufficient to hold that prosecution had failed to bring home guilt of accused---Trial Court, in circumstances, failed to properly appraise the evidence brought on record---Impugned judgment of conviction of accused was not based on sound reasoning and the evidence brought on record had not been correctly appreciated by the Trial Court---Prosecution had not been able to prove its case against accused beyond any shadow of reasonable doubt and benefit of such doubt would go in favour of accused---Impugned conviction and sentence of accused, were set aside and he was acquitted of the charge against him.

Sardar Naeem for Appellant.

Sanaullah Khan Shamim Gandapur, D.A.-G. for Respondent.

Date of hearing: 21st May, 2008.

2008 M L D 1578

[Peshawar]

Before Muhammad Alam Khan, J

NIAZBAT---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 305 of 2008, decided on 29th April, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail, refusal of---Huge quantity of six Kilograms Charas had been recovered from accused---Contents of the F.I.R. revealed that accused was also involved in other criminal cases and also that those cases were compromised, but prima facie involvement of accused in those cases was proved---Accused being a hardened criminal was not entitled to the concession of bail---Investigation in the case was complete and the prosecution had also drawn the complete Challan---Bail was refused.

Inayatullah v. The State 2006 PCr.LJ 840 Pesh. and Gul Rehman v. The State 2008 YLR 807 rel.

Fazle Milla Chattan for Petitioner.

Miss Hamsheed Begum for the State.

Date of hearing: 29th April, 2008.

2008 M L D 1589

[Peshawar]

Before Muhammad Alam Khan, J

REHMAT ZAMAN and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 210 of 2008, decided on 21st July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 20---Bail, grant of---Search warrant in the case was issued by the Judicial Magistrate, whereas under the law search had to be conducted strictly in accordance with S.20 of Control of Narcotic Substances Act, 1997, and it was the Special Court, which had to issue the search warrant---Any violation of said provision of law would make the search illegal---Court of law had to implement the law as it was---Site plan would show that the place wherefrom the alleged recovery was made, was a dewelling house surrounded by abadi, but none from the public had been associated with the recovery proceedings---Prosecution had annexed with the record two F.I.Rs and on the strength of said F.I.Rs. State Counsel argued that accused being previously involved in selling narcotics was not entitled to the concession of .bail---Validity---Mere producing F.I.R. against accused would not disentitle accused to the concession of bail as the prosecution had to prove the guilt of accused in a court of competent jurisdiction---Accused, was admitted to bail, in circumstances.

Muhammad Zaman v. The State 1999 PCr.LJ 797; State through A.G. Sindh Karachi v. The Hemjoo 2003 SCMR 881; Javid Gul v. The State 2002 PCr.LJ 1429 and Jamil Khan v. State 2003 PCr.LJ 1139 rel.

Azmatullah Malik for Petitioners.

Naveed Ahmad for the State.

Date of hearing: 21st July, 2008.

2008 M L D 1603

[Peshawar]

Before Shahji Rahman Khan, J

SHAKEEL ARSHAD ---Petitioner

Versus

THE STATE---Respondent

Criminal Revision No.23 of 2008, decided on 13th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Control of Narcotic Substances Act (XXV of 1997), Ss.9(b), 32 & 74---Return of vehicle on Superdari---Application of petitioner, who claimed to be owner of motor car in question, was turned down by the Special Court---Validity---Petitioner who was bona fide lawful owner of vehicle was earning his livelihood by plying the vehicle on rent through accused/driver---Petitioner was not accused person in the case and nothing' was on record to show that petitioner had any knowledge that accused/driver would use his vehicle for committing any offence relating to narcotics and the law would not place the onus on the petitioner to prove his lack of knowledge in that regard---Rights of the owner who had no knowledge of the commission of offence or had no conscious hand in the crime, were fully protected---Courts would come to the rescue. of the owners when their vehicles were used without their knowledge for the commission of offence---Vehicle in question was parked in open space exposed to the vagaries of weather; its retention in police custody for an indefinite period would also achieve no useful purpose---Local Police of ANF was directed by High Court to hand over custody of vehicle to the petitioner on furnishing bail bond by him with two sureties.

2002 PCr.LJ (Pesh.) 666 ref.

Ms. Farhana Marwat for Petitioner.

Salah-ud-Din, Dy. Attorney General for the State.

Date of hearing: 13th June, 2008.

2008 M L D 1704

[Peshawar]

Before Shahji Rahman Khan, J

MUHAMMAD IQBAL and another---Applicants

Versus

THE STATE---Respondent

Bail Application No.272 of 2008, decided on 6th June, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/34---Bail, grant of---Further inquiry---Accused were charged for indiscriminate firing at the deceased as well as the complainant from a short distance on the thoroughfare, but the complainant miraculously escaped unhurt, whereas deceased received fire-arm injuries which resulted in his death---Contradiction existed with regard to nature of injuries on the persons of deceased and injured between postmortem examination and prosecution version---Statement of injured was not recorded on the date of occurrence, but was recorded with the delay of two days and no plausible explanation was offered for such delay---Despite the fact that the occurrence took place in a broad-daylight, nobody from the public was associated in the investigation of the case---Neither any empty could be procured from the place .of occurrence by the police nor despite of remaining in the police custody for four days any incriminating article could be recovered from the possession of accused persons---Case, in circumstances, required further inquiry---Investigation in the case was complete and accused were no more required for investigation purpose who were behind the bars since long and it was not sure as to when the trial would be concluded against them--Accused persons, having succeeded in making out a good case for grant of bail, they were admitted to bail, in circumstances.

Government of Sindh v. Raeesa Farooq 1994 SCMR 1283; Ch. Abdul Malik v. The State PLD 1968 SC 349; Faqir Hussain v. Asad Ali Khan 2003 PCr.LJ (Pesh.) 518 and Syed Amanullah Shah v. State PLD 1996 SC 241 ref.

Javed A. Khan for Petitioner.

Shabana Gul Tajik for the State.

Khawaja Muhammad Khan Gara for the Complainant.

Date of hearing: 2nd June, 2008.

2008 M L D 1729

[Peshawar]

Before Shahji Rahman Khan, J

BASHIRUL HAQ---Applicant

Versus

THE STATE and another---Respondents

Bail Application No.675 of 2008, decided on 23rd July, 2008.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/34---Bail, grant of---Further inquiry---Accused was empty-handed at the time of occurrence and was not charged for firing at the deceased and only a proverbial lalkara' was attributed to him---Guilt of accused, in view of the role ofLalkara' attributed to him, needed further probe within the meaning of subsection (2) of S.497, Cr.P.C.---Investigation in the case was complete and accused was no more required for investigation purpose---Accused was behind the bars since long and it was not sure as to when the trial would be conducted against him---Accused having succeeded in making out good case for grant of bail, he was admitted to bail.

Syed Amanullah Shah v. State PLD 1996 SC 241 rel.

Khawaja Muhammad (Gara) and Sohail Akhtar for Applicant.

Alamgir Durani, DAG for the State.

Javed A. Khan for the Complainant.

Date of hearing: 23rd July, 2008.

2008 M L D 74

[Quetta]

Before Muhammad Nadir Khan, J

THE STATE---Appellant

Versus

ABDUL GHAYAS---Respondent

Cr.J.A. No.89 and M.R, No.19 of 2003, decided on 12th March, 2007.

(a) Penal Code (XLV of 1960)---

----S.302---Appreciation of evidence---Both accused and deceased were real brothers and dispute of partition of property exited between them---Accused in his confessional statement had attempted to make out a case that Kalashinkov went off accidentally and its bullet hit the deceased---Confessional statement of accused did not explain the circumstances in which Kalashinkov went off accidentally and bullet fired by the same hit the deceased---After receiving bullet by deceased, accused did not make any effort to save his brother, but left him at the scene of occurrence and went to his house---Such conduct of accused was found to be not consistent with his plea of accidental firing of Kalashinkov---Mother of accused had also riot supported the plea of accused, but she had involved him in intentional murder of her other son---Accused had fully been proved to have intentionally committed murder of his brother---No evidence was available to attract the provisions of S.302(a), P.P.C. and in the circumstances, accused was found to have committee) offence under S.302(b), P.P.C.---Record did not reflect any mitigating circumstance entitling accused for lesser punishment---Death sentence awarded to accused was upheld and murder reference was answered in affirmative.

(b) Criminal trial---

----Confession---Acceptance and rejection of confessional statement as a whole where there was no other ocular or circumstantial evidence was available---Principles.

PLD 1983 SC-AJK 199; 1994 PCr.LJ 490; PLD 1999 Karachi 151; 2004 SCMR 1808; 1989 SCMR 611 and PLD 1958 Pesh. 147 rel.

Naeem Akhtar for Appellant.

Amanullah Tereen learned A.A.-G. for Respondent.

2008 M L D 173

[Quetta]

Before Akhtar Zaman Malghani, J

HAJI KHAN-Applicant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 200 and 201 of 2007, decided on 6th'November, 2007.

Explosive Substances Act (VI of 1908)---

----Ss.4 & 5---West Pakistan Arms Ordinance (XX of 1965), S.13(E)-Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Complainant, who was a police officer, had supported prosecution allegations against accused in his examination-in-chief, but his evidence did not inspire confidence as he tried to conceal material facts from the court---Complainant in his cross-examination had stated that no populated area was situated near the place where raid was conducted, but his statement in that respect was contradicted by other prosecution witnesses who stated that occurrence had allegedly taken place in a populated area---Police having raided the place of occurrence on advance spy information, it was easy for the raiding party to have associated public witness in the proceedings of recovery, but they failed to do so which had made case of prosecution doubtful---Name of accused mentioned in F.I.R. was different from his name as mentioned in his National Identity Card---Whole prosecution case having become doubtful, conviction of accused could not be sustained on the sole testimony of police officials---Conviction and sentences awarded to accused, were set aside and they were acquitted and set at liberty.

Shah Muhammad Tatoai and Muhammad Qahir Shah for Applicants.

Abdullah Baloch and Qazi Bashir Ahmed for Respondents.

Date of hearing: 10th October, 2007.

2008 M L D 1611

[Quetta]

Before Mehta Kailash Nath Kohli and Muhammad Nadir Khan, JJ

LIAQUAT ALI and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeals (ATA) Nos.341 and 342 of 2004, decided on 7th July, 2008.

(a) Penal Code (XLV of 1860)---

----Ss. 302(b) & 365---Anti-Terrorism Act (XXVII of 1997), Ss.7(a)(c) & 25---Appreciation of evidence---Benefit of doubt---F.I.R. in the case was lodged after a delay of six days---Statements of alleged abductees were also recorded after considerable delay and even after their release, none of them had named accused persons---F.I.R. did not show the names of the witnesses who were present at the site---Neither the F.I.R. was lodged promptly nor statements of the witnesses were recorded with promptitude and said delay had not been explained---Even the statements of alleged eye-witnesses were not interlinked and interconnected as the witnesses did not show presence of the other alleged eye-witnesses; they had also failed to explain that despite the fact that they were present in the area, they did not come forward for recording their statements at the earliest possible time---Even the complainant stated that he got recorded the complaint after delay of five days---Delay per se though could not be sufficient to discard the statement, but statements had to be considered in the light of facts and circumstances of the case---In the present case, two tribes were inimical to each other on the excavation of coal and dispute was over the mining area---Witnesses, despite being residents of the area, had kept mum for a long period and did not get recorded any statement implicating accused persons at the earliest possible time--Police Officer, who registered case, had failed to perform his duty in recording the F.I.R. and he waited for the complaint to be filed, which had further caused suspicion of the allegations levelled against accused persons---In view of delay in recording the F.I.R:, delay in recording the statements of the witnesses under S.161, Cr.P.C., which had not been explained, either by the Investigating Officer or the witnesses and the discrepancies in the statements of the witnesses, as well as the fact that accused were not named by the alleged abductees, prosecution had failed to prove the case against accused persons beyond shadow of doubt---Extending benefit of doubt, impugned judgment was set aside and accused persons were acquitted of the charge, in circumstances.

(b) Criminal Procedure Code (V of 1898)---

----S. 154---F.I.R., object and importance of---First Information Report in a criminal case was an extremely vital and valuable piece of evidence for the purpose of corroborating the oral and ocular evidence adduced at the Trial---Importance of F.I.R. could hardly be overestimated from the stand point of accused---Object of insisting upon prompt lodging of the report to the police in respect of commission of an offence was to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence---Delay in lodging F.I.R. quite often would result in establishing that same was a creature of afterthought.

H. Shakil Ahmed and Muhammad Qahir Shah for Appellants (in Criminal (ATA) No. 341/2004). .

Kamran Murtaza of Appellant (in Criminal Appeal (ATA) No342/2004).

Kamran Murtaza for Appellants (in criminal Appeal (ATA) No.342 of 2004).

Bashir Ahmed Qazi, Special Prosecutor, ATA for the State (in both Criminal Appeals).

Date of hearing: 4th June, 2006.

2008 M L D 1663

[Quetta]

Before Akhtar Zaman Malghani and Ahmed Khan Lashari, JJ

DALEEL KHAN and others---Appellants

Versus

SESSIONS JUDGE, KALAT DIVISION and others---Respondents

Criminal Appeal No.193 and Criminal Revision No. 51 of 2004, decided on 3rd July, 2008.

(a) Penal Code (XLV of 1860)---

----S. 302(c)---Appreciation of evidence---Death of both deceased by violent act had not been disputed by the defence---When violent death of deceased had been proved through other evidence beyond any doubt, then mere fact that no postmortem was conducted, had no material or legal consequence---Both accused admitted to have committed murder of both deceased---One of the accused persons in his confessional statement had further stated that he saw male accused' and his deceased wife in objectionable position and male accused escaped who subsequently was caught and was murdered---Mere delay in recording of confessional statement of accused persons was not itself sufficient to discard such confessional statements, if the same otherwise were found to be voluntary and truthful---Confessional statements of both accused, could also not be discarded merely because they had not given correct account with regard to kind of weapon used in the occurrence' and had stated falsely to that extent provided remaining part of confessional statement was corroborated by other evidence---Admission made by accused persons were corroborated by another independent witness---Where a part of confessional statement was found to be false, the court could rely upon the remaining confessional statement, which was found corroborated from other evidence---Defence version was neither plausible nor believable as both accused in support of their plea of alibi, did not depose on oath in the court---Adverse inference though in ordinary course, could not be drawn against accused for not recording his statement on oath as provided under S.340(2), Cr.P.C., but in view of specific plea of alibi taken by accused, burden had shifted to them to prove such plea, but accused were not ready to support such plea by their own statements---Effect---Prosecution had successfully proved that accused persons had committed murder of both deceased---Deceased were murdered on account of alleged "Siakari" (Zina) and accused found both deceased in objectionable position---Accused, in circumstances were rightly found guilty under S.302(c), P.P.C., instead of S.302(b), P.P.C.

1998 SCMR 1778; 2001 SCMR 505 and PLD 1958 Pesh. 147 rel.

(b) Criminal Procedure Code (V of 1898)---

----S. 340(2)---Penal Code (XLV of 1860), S.302(c)---Plea of alibi---Failure of accused to record statement on Oath---Accused persons in support of their plea of alibi did not enter into witness box to depose on oath---Though in ordinary course, no adverse inference could be drawn against an accused for not recording his statement on oath as provided under S.340(2), Cr.P.C., but in view of specific plea of alibi taken by accused persons in the case, burden was shifted to them to prove such plea, but they were not ready to support such plea by their own statements.

Jaffar Raza Khan for Appellants (in Criminal Appeal No 193 of 2004).

Malik Sultan Mehmood A.A.-G. and Amanullah Kanrani for the Complainant (in Criminal Appeal No. 193 of 2004).

Jaffar Raza Khan for Petitioner (in Criminal Revision No.51 of 2004).

Malik Sultan Mehmood A.A.-G., Amanullah Kanrani for the Complainant (in Criminal Revision No.51 of 2004).

Date of hearing: 29th May, 2008.