MLD 2020 Judgments

2020 M L D 532

[Election Tribunal Balochistan]

Before Abdullah Baloch, J

Sardarzada Mir SAEED AHMED---Petitioner

Versus

MIR ZIAULLAH and 22 others---Respondents

Election Petition No.15 of 2018, decided on 2nd August, 2019.

Elections Act (XXXIII of 2017)---

----S. 139---Election petition---Election for the seat of Member Provincial Assembly---Allegations of illegal and corrupt practices---Proof---Requirements---Personnel of all enforcing agencies were deputed on the polling stations---Voters had casted their votes with their free will, consent and choice---No mishap had been reported in any polling station---Witnesses of petitioner had failed to point out any of the polling staff being in league with the returned candidate---Petitioner had levelled bald allegation against the respondent by seeking declaration of returned candidate to be void without any solid and concrete evidence---Polling Agents had not challenged a single vote at the time of polling---Petitioner had not approached the Election Commission against alleged corrupt practices rather he waited for election result---Allegations made in the election petition were not only vague, generalized and non-specific but also did not meet the requirements enough to declare the elections of returned candidate to be void---Returned candidate could not be penalized for the act or omission on the part of polling staff---Petitioner should have mentioned full particulars of corrupt practices in the election petition by specifying the particular person or persons responsible for such corrupt practices and proved the same---Nothing was on record that returned candidate had procured the assistance of Presiding Officer to secure his election in any manner---Charge of corrupt practices was to be proved beyond any shadow of doubt---Standard of proof required for establishing such charge was the same as was applicable to a criminal charge---Evidence produced by the petitioner was not of such standard either to declare the election of the entire constituency as void or to hold responsible the returned candidate for facing the penal consequences---Petitioner had failed to establish through cogent evidence that returned candidate had committed illegal and corrupt practices directly or through his polling agents or any of the polling staff---Election petition was dismissed, in circumstances.

Mir Shah Nawaz Khan v. Manzoor Hussain Wassan and 13 others 2014 CLC 1042 ref.

Feroze Ahmed Jamali v. Masroor Ahmed Khan 2016 SCMR 250 distinguished.

Muhammad Siddique Baloch v. Jehangir Khan Tareen PLD 2016 SC 97; Nawab Ali Wasan v. Syed Ghous Ali Shah 2018 SCMR 87; Usman Dar and others v. Khawaja Muhammad Asif and others 2017 SCMR 292; Muhammad Arif Muhammad Hassani v. Amanullah and others 2016 SCMR 1332 and Syed Mashooq Mohiuddin Shah v. Syed Fazul Ali Shah and 37 others 2014 CLC 1181 rel.

Naseebullah Tareen and Nadir Langove for Petitioners.

Nadir Ali Chalgari, Bilal Mohsin and Farooq Ali for Respondent No.1.

2020 M L D 89

[Federal Shariat Court]

Before Shaukat Ali Rakhshani, J

TULSI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 39/K of 2018, decided on 22nd April, 2019.

(a) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts. 3 & 4---Possessing intoxicant---Appreciation of evidence---Benefit of doubt---Prosecution case was that seven jerry canes, each containing 30 litres liquor, a container of tin having 10 litres of under process liquor kept on the stove with small pot and pipe thereon, two clay drums each having 100 litres under process liquor buried beneath the ground, were recovered from the premises of accused---Seven plastic bottles from each Jerry Cane were obtained as samples and sealed for sending the same to the Chemical Examiner---Complainant, who was also the Investigating Officer, besides being a seizing officer stated that he obtained samples in seven plastic bottles from each Jerry Cane, which were sent to Chemical Examiner whereof positive report was received---Scrutiny of the testimony of complainant and witness/ constable had been found to be contradictory on material points---Complainant had testified that the samples were obtained in plastic bottles whereas constable in cross-examination referred the sample bottles as glass bottles---Complainant stated in cross-examination that the houses around the relevant place were situated at a distance of 50 paces and there were many houses, whereas constable/witness had denied to have seen villagers nearby the place of occurrence---Complainant/Investigating Officer stated to have sent seven bottles of sample of Chemical Examiner through a constable but said constable when examined in court categorically deposed that on the same day one sample was given to him coupled with the concerned documents for chemical laboratory, which was a crucial dent in the prosecution case---Prosecution case was that a tin having 10 litres of unprepared liquor was recovered but the same was not sent for chemical examination---Record also did not reflect that the recovered articles were formally unsealed and got exhibited by tagging the same with exhibit number in the court albeit same were statedly shown to prosecution witnesses but with no specification of the articles---Chemical Examiner had failed to assign any reason concluding that the suspected liquor was Ethyl Alcohol---Chemical Examiner did not mention about the test carried out by him to render opinion contained in his report---Complainant and Investigating Officer testified in court that a constable was sent to Chemical Examiner, but had not offered explanation as to why not on the day of recovery or even later on the next day the samples were not sent to Chemical Examiner, which undeniably raised suspicion with regard to its safe custody and tampering with the samples, whereupon reliance might not be safe---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

2017 SCMR 1710; 2017 SCMR 148; 2015 SCMR 1002 and 2001 SCMR 56 ref.

(b) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts. 3 & 4---Criminal Procedure Code (V of 1898), S. 342---Appreciation of evidence---Examination of accused---Scope---Record showed that while examining the accused-appellant under S. 342 Cr.P.C., no question in respect of samples taken from the recovered seven Jerry Canes, sending it for chemical examination and ultimately receipt of the chemical examiner report had been put to him---On the principle of audi alteram partem, such piece of evidence could not be used against the accused-appellant---If the chemical examiner report was ruled out of consideration, the entire structure would fall to earth.

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

----S. 342---Examination of accused under S. 342, Cr.P.C.---Scope---Any piece of evidence not put to accused at the time of examination under S. 342, Cr.P.C., could not be considered against him.

Imtiaz alias Taj v. State 2018 SCMR 344; Qaddan and others v. The State 2017 SCMR 148 and Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1710 rel.

(d) Prohibition (Enforcement of Hadd) Order (4 of 1979)---

----Arts. 3 & 4---Criminal Procedure Code (V of 1898), S. 103---Appreciation of evidence---Non-association of the inhabitants---Effect---Prosecution case was that huge quantity of liquor was recovered from the premises of the accused---Record showed that no inhabitant was associated at the time of search, arrest and recovery---High Court observed that non-association of the inhabitants of the vicinity particularly when there was advance information and complainant having multiple hats of seizing officer and Investigation officer as in the present case had always been disapproved---Such circumstances had further weakened the case of the prosecution. (e) Criminal trial---

----Benefit of doubt---Principle---Single circumstance creating a reasonable doubt in prudent mind would be sufficient enough to extend the benefit of doubt to the accused.

Mst. Asia Bibi v. The State PLD 2019 SC 64 and Intekhab Ahmed Abass v. The State 2018 SCMR 495 rel.

Shaikh Jawaid for Appellant.

Zafar Ahmad Khan, Additional Prosecutor General, Sindh for the State.

2020 M L D 266

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

BAKHT NAWAB---Appellant

Versus

SOHAIL KHAN and another---Respondents

Criminal Appeal No. 02/I of 2019, decided on 12th September, 2019.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 392---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.20---Criminal Procedure Code (V of 1898), S. 367---Qatl-i-amd, robbery, haraabah---Appreciation of evidence---Contents of judgment---Scope---Prosecution case was that the culprits duly armed with firearm weapons snatched cellular phones and an amount of Rs.4,000/- from witness; during scuffle with one of dacoits, father of complainant had succumbed to bullet injury of .30 bore pistol at the spot---Record showed that the Trial Court in non-compliance of mandatory provisions of subsections (2), (3) and (5) of S. 367, Cr.P.C., had not drawn the point/points for determination and findings with reasons for the decision in the impugned judgment nor the offence for which the accused/appellant was sentenced had been mentioned---Sufficient reasons or plausible mitigating circumstances for awarding lesser punishment of imprisonment of life had not been specified---Provision of S.367, Cr.P.C. was mandatory and intended to constitute a substance as distinguished from mere form of judgment---Circumstances suggested that mandatory provisions of S. 367, Cr.P.C. had not been followed in deciding the case---Having not been delivered in the light of S.367, Cr.P.C., impugned judgment was not sustainable in law and was liable to be set aside---Resultantly, the case was remanded back to the Trial Court for re-writing the judgment strictly on merits.

Kashif Ali v. The Judge ATC No.2 Lahore and others PLD 2016 SC 951; Akhtar Ali and others v. The State 2008 SCMR 6 and Kaleem Ullah v. The State and another 2018 YLR 2363 ref.

Mudassar alias Jimmi v. The State 1996 SCMR 3 and Sahab Khan and 4 others v. The State and others 1997 SCMR 871 rel.

Muhammad Sajid Khan for Appellant.

Malik Daniyal Khan for Respondent.

Malik Akhtar Hussain Awan, Assistant Advocate General, Khyber Pakhtunkhwa for the State.

2020 M L D 1908

[Federal Shariat Court]

Before Syed Muhammad Farooq Shah and Shaukat Ali Rakhshani, JJ

The STATE through Advocate-General, Khyber Pakhtunkhwa---Appellant

versus

SAJJAD AHMAD and 2 others---Respondents

Criminal Appeal No.11-P of 2014, decided on 4th December, 2019.

(a) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)---

----S. 17---Anti-Terrorism Act (XXVII of 1997), S. 7---Penal Code (XLV of 1860), Ss. 324, 353, 148 & 149---Pakistan Arms Ordinance (XX of 1965), S. 13---Criminal Procedure Code (V of 1898), Ss. 265-K & 417---Haraabah, act of terrorism, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapon, common object, unlicensed possession of arms---Power of court to acquit accused at any stage---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Contradictory statements---Withholding best evidence---Scope---Accused persons were alleged to have looted the passengers and fired at the police party---Trial Court, after recording the evidence of all material prosecution witnesses, acquitted the accused under S.265-K, Cr.P.C. arriving at the conclusion that there existed no probability of accused being convicted, therefore, State counsel conceded that the remaining prosecution witnesses who were also police officials, would not improve the prosecution's case to the extent of probability of the accused being convicted---Prosecution story rested upon the evidence of the DPO (District Police Officer) concerned, on whose presence and instructions the alleged encounter was conducted, but he was not examined as a witness---Prosecution evidence did not inspire confidence as there were sufficient inconsistencies and contradictions among the depositions of prosecution witnesses, which created reasonable doubt about the guilt of the accused---Appeal against acquittal was dismissed, in circumstances.

(b) Criminal trial---

----Duty of prosecution---Scope---Prosecution is bound to prove its case beyond any shadow of doubt as the conviction cannot be based on high probabilities---Suspicion cannot take place of proof.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

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

----S. 417---Appeal against acquittal---Interference---Scope---Appellate court cannot frequently interfere with the acquittal merely because on reappraisal of evidence it may come to the conclusion different from that of the Trial Court.

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

----S. 417---Appeal against acquittal---Interference---Scope of interference in appeal against acquittal is narrowest and limited because after acquittal the accused shall be presumed to be innocent, in other words; the presumption of innocence is doubled.

Ms. Sophia Noreen, Asstt. A.G. Khyber Pakhtunkhwa for the State/Appellant.

Muhammad Bilal Khan for Respondents Nos. 1 to 3.

2020 M L D 34

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MUZAFFAR ALI KHAN---Petitioner

Versus

SHEHZAD KHAN---Respondent

C. Rev. No. 06 of 2019, decided on 14th May, 2019.

Civil Procedure Code (V of 1908) ---

----O. VI, R. 17---Amendment of plaint---Scope---Plaintiff moved application for amendment of plaint but same was dismissed---Validity---Plaintiff had failed to mention that as to in which paragraph of the plaint the proposed amendment was to be made---Application for amendment of plaint was silent with regard to word/paragraph to be deleted after adding/inserting proposed amendment---Petition moved by the plaintiff for amendment of plaint was vague, defective and was not sustainable in the eye of law---Admission or denial in the plaint or written statement could not be allowed to be amended---Impugned order passed by the Court below was in accordance with law---Revision was dismissed, in circumstances.

Ghulam Abbad for Petitioner.

Saqib Hussain and Naveed Hussain for Respondent.

2020 M L D 103

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

RAHIM DAD---Appellant

Versus

HAMAYOUN SHAH through L.Rs. and others---Respondents

Civil 1st Appeal No. 18 of 2018, decided on 26th August, 2019.

Civil Procedure Code (V of 1908)---

----O.VII, R.2---Qanun-e-Shahadat (10 of 1984), Arts. 17 & 79---Limitation Act (IX of 1908), Art. 57---Suit for recovery of amount---Proof of execution of document required by law to be attested---Competence and number of witnesses---Non-production of marginal witness and scriber---Limitation---Scope---Appellant, on the basis of un-registered agreement, claimed that the respondent had borrowed a certain amount from him---Validity---Perusal of the agreement revealed that two attesting witnesses had signed on the document as marginal witnesses but the appellant had produced only one attesting/marginal witness of the document and failed to produce the scribe of the agreement in the trial court as required under Arts. 17 & 79 of the Qanun-e-Shahadat, 1984---Document relating to financial or future obligation was required to be attested by two male witnesses or one male and two female witnesses and the same had to be proved accordingly---Agreement in question could not be considered/taken as proved nor could it be used in evidence as it was not proved in accordance with the requirement of Art. 79 of Qanun-e-Shahadat, 1984---Appellant had failed to prove the execution of the agreement---Disputed document was executed on 12.1.2004 and counter claim/suit was filed by the appellant on 19.8.2008---Case of appellant was governed by Art. 57 of the Limitation Act, 1908, which provided a period of three years to file a suit for recovery of amount, which period was to be reckoned from the date when the money was lent---Counterclaim of the appellant was time-barred---Judgment and decree passed by the Trial Court was declared by the Chief Court to be correct and in accordance with law---Appeal was dismissed.

PLD 1996 SC 256 and PLD 2011 SC 241 ref.

Faizul Wahid for Appellant.

Ghulam Nabi for Respondents.

2020 M L D 328

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

SHER AFZAL---Appellant

Versus

PROVINCIAL GOVERNMENT through Chief Secretary/Land Revenue and 5 others---Respondents

Civil 1st Appeal No. 47 of 2015, decided on 29th April, 2019.

Land Acquisition Act (I of 1894)---

----Ss. 18 & 23---Reference to court---Compensation, enhancement of---Market value---Referee Judge enhanced compensation amount from Rs. 150,000/- per kanal to Rs. 350,000/- per kanal---Validity---Acquired land was situated at road side and same could be used for commercial purpose---Average value of land situated adjacent to the land in question was of Rs. 800,000/ per kanal at the time of acquisition---Collector Land Acquisition had paid less compensation amount to the landowner as compared to prevailing market rates---Market value of land and its potentiality was also to be considered for determining compensation---Fair compensation should be the value of the acquired property in open market, which a seller reasonably demanded from a purchaser---Collector Land Acquisition was to determine the value of land in open market at the relevant time---Collector Land Acquisition had fixed compensation of acquired land at the rate of Rs. 150,000/- per kanal which was against the provisions of Land Acquisition Act, 1894---Trial Court had failed to appreciate the evidence produced by the landowner and disbelieved the documentary evidence on presumptions and conjectures---Department had failed to rebut the sale deeds produced by the landowner---Compensation of acquired land was enhanced from 150,000/- per kanal to Rs. 800,000/- per kanal alongwith 15% compulsory acquisition charges by the High Court---Appeal was allowed, accordingly.

Raja Shakeel Ahmed for Appellant.

Addl. Advocate General for Respondents.

2020 M L D 437

[Gilgit-Baltistan Chief Court]

Before Wazir Shakeel Ahmed, C.J. and Ali Baig, J

REHMAT JAN---Petitioner

Versus

WALI UR REHMAN and 3 others---Respondents

Writ Petition No.153 of 2018, decided on 18th April, 2019.

Penal Code (XLV of 1860)---

----S.302/34---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Murder due to family dispute, common intention---Scope---Act of terrorism---Scope---Complainant sought insertion of Ss. 6 & 7 of Anti-Terrorism Act, 1997 in the FIR---Earlier, Division Bench of the High Court had, after hearing both the parties, allowed the criminal revision petition of accused and transmitted his case to the Sessions Judge for further proceedings by holding that Anti-Terrorism Court had no jurisdiction in the case of accused---Validity---FIR was lodged against unknown persons and the present accused persons were arrested later on during investigation---Investigation revealed that due to some family dispute accused persons had committed murder of the deceased and accordingly the case was registered by police under ordinary law and remand of the accused was also obtained from the court of Judicial Magistrate---Section 6 of Anti-Terrorism Act, 1997 did not attract to the case---Division Bench had rightly directed the police officials to delete Ss. 6 & 7, Anti-Terrorism Act, 1997 from the case of accused, which was inserted later on in the case on the direction of Anti-Terrorism Court---Writ petition, being not maintainable, was dismissed.

Shoukat Ali and Wasal Khan for Petitioner.

Assistant Advocat General along with Jehangzaib Khan for Respondents.

2020 M L D 480

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

GHULAM HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos. 1 and 2 of 2017, Criminal Revision No.22 of 2016, decided on 22nd April, 2019.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Specific allegation---Police witness---Damaging concessions---Scope---Accused persons were alleged to have murdered the deceased by making fire shots---Accused persons were named in the FIR with specific allegation of opening fire shots on the deceased---Empties secured from the place of occurrence were found to have been fired from the weapon recovered from the possession of accused persons---Eye-witnesses had fully implicated the accused persons for the commission of offence---Presence of eye-witnesses was not challenged during their deposition in the Trial Court---Concessions extended by the police officials as a result of their pre-design meeting and already settled understanding could not be considered fatal in the peculiar circumstances of the case---Prosecution had established the case against both the accused beyond any shadow of doubt---Convictions/sentences awarded to the convicts was maintained in toto---Appeals were dismissed.

PLD 1976 SC 452 rel.

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

----Art. 46---Dying declaration---Scope---Statement made by an injured under expectation of death, who dies later on, can be treated as dying declaration.

(c) Criminal trial---

----Evidence---Ocular evidence---Corroborative evidence---Scope---Where ocular evidence firmly stands the test of cross-examination and is not shattered during cross-examination, the conviction can be awarded, even without looking for corroboratory evidence---When the ocular account fails, conviction cannot be based on any corroboratory/ confirmatory evidence, however strong it may be.

Jehanzeb Khan for Appellant (in Criminal Appeals Nos.1 and 2 of 2017).

Dy. Advocate General for the State (in Criminal Appeals Nos.1 and 2 of 2017).

Munir Ahmed for the Complainant (in Criminal Appeals Nos.1 and 2 of 2017).

Munir Ahmed and Imtiaz Hussain for Petitioner (in Criminal Revision No.22 of 2016).

Jehanzeb Khan for Respondent/accused (in Criminal Revision No.22 of 2016).

Dy. Advocate General for the State (in Criminal Revision No.22 of 2016).

2020 M L D 686

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

The STATE---Petitioner

Versus

AKASH KHAN alias KASHI---Respondent

Criminal Revision No. 24 of 2017, decided on 16th September, 2019.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 392---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, robbery---Appreciation of evidence---Dying declaration, recording of---Petition for enhancement of sentence---Scope---Record showed that the statement of deceased under S.161, Cr.P.C. was recorded by the Investigating Officer on 4.3.2015 and he died on 20.3.2015---Last statement of the deceased could validly be treated as "dying declaration", if the court was satisfied that the deceased was in a stable condition to make a coherent statement and the "dying declaration" was free from outside influence---Defence during cross-examination of Medical Officer got it clarified that the deceased was in stable condition and was also able to talk---Recoveries of incriminating articles i.e. blood stained stone, mobile, coat and an amount of Rs. 16000 had been recovered from the accused in presence of Magistrate and marginal witness, who fully supported the case of prosecution during trial---Said recoveries were admissible under the law and could be treated as corroborative piece of evidence---Record transpired that it was a case of circumstantial evidence, and no direct evidence was available on record except a statement of the deceased recorded by the police under S.161, Cr.P.C.---In cases of circumstantial evidence, the sentence of death was normally not awarded, unless and until some exceptional and strong circumstances were available to do so---No justification was available to enhance the sentence of the accused, in circumstances---Revision petition was dismissed being meritless.

Dy. Advocate General for the State.

Raja Zia-ur-Rehman for Convict/Respondent.

2020 M L D 883

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

BAKHMAL---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No. 320 of 2019, decided on 30th January, 2020.

Criminal Procedure Code (V of 1898)---

---S. 497---Penal Code (XLV of 1860), Ss. 302, 34---Qatl-i-amd, common intention---Bail , grant of---Further inquiry---Accused was not present at the time and place of occurrence---Motive behind the occurrence had not been disclosed in the FIR---No incriminating material had been collected by the police against accused during investigation---Statement of one prosecution witness, recorded under S. 161, Cr.P.C., after five days of the occurrence, wherein, he stated that the nominated accused had committed murder of deceased at the behest of accused, which created serious doubt regarding involvement of the accused in the occurrence---Implication of the present accused seemed to be result of afterthought and his false involvement could not be ruled out---Accused was admitted to bail, in circumstances.

Abdul Khaliq for Petitioner.

Deputy Advocate General for Respondent/State.

2020 M L D 1130

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MUJEEB ULLAH and 2 others---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous No. 32 of 2020, decided on 11th February, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 365-B, 368, 341/34---Kidnapping, abducting or inducing woman to compel for marriage, wrongfully concealing or keeping in confinement kidnapped or abducted person, common intention---Bail, grant of---Further inquiry---Accused persons were not directly charged in the FIR rather report was lodged against unknown culprits---Principal accused and his co-accused had been released on bail by the Court, hence, rule of consistency applied to the case of the accused persons as identical role had been attributed to all the co-accused having already been granted bail---Complainant had entered into compromise with the principal accused---Bail could not be refused on the ground that the accused persons had absconded soon after the occurrence---Accused persons were admitted to bail, in circumstances.

Amjad Hussain, Naveed Hussain and Yasir Sherazi for Petitioners.

Deputy Advocate General for the State.

2020 M L D 1187

[Gilgit-Baltistan Chief Court]

Before Malik Haq Nawaz, J

SHEHZAD KHAN alias NOMI and another---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous No. No.226 of 2019, decided on 18th September, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 324, 285, 290 & 34---Attempt to commit qatl-i-amd, negligent conduct with respect to fire or combustible matter, public nuisance in cases not otherwise provided for, common intention---Bail, grant of---Further inquiry---Co-accused had been released by the police under S.169, Cr.P.C.---No medical certificate of the victim was available on the file to substantiate the allegations mentioned in the FIR---Intention to kill would be determined at the time of trial after recording of evidence by the Trial Court---Case was one of the further inquiry---Accused persons were admitted to bail, in circumstances.

Athar Hussain and Muhammad Akram Baig for Petitioners.

Deputy Advocate General for the State.

2020 M L D 1237

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

Mir WALI KHAN---Petitioner

Versus

The STATE through F.I.A.---Respondent

Criminal Miscellaneous No. 37 of 2020, decided on 21st February, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 420---Foreigners Act (XXXI of 1964), S. 14---Cheating and dishonestly inducing delivery of property---Bail, grant of---Further inquiry---Accused had valid Form-B issued by National Database and Registration Authority and his name appeared at serial No.4 of the said Form-B as such he was resident of Swat---Death certificate of father of the accused showed that he had expired at Khaja-abad, Swat and he was buried there also, thus accused had been residing in Khyber Pakhtunkwa Province (Pakistan) since long---Offence under S.14(1) of Foreigners Act, 1946, did not fall within the ambit of prohibitory clause of S.497(1), Cr.P.C.---Section 420, P.P.C. was bailable---Accused was admitted to bail, in circumstances.

Mohammad Farooq Umer for Petitioner.

Deputy Advocate General for the State.

2020 M L D 1258

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

NIAZ BAT KHAN---Petitioner

Versus

The STATE---Respondent

Criminal Revision No. 1 of 2020, decided on 13th February, 2020.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Superdari of vehicle---Scope---Petitioner had assailed order of lower Court whereby his application for superdari of vehicle was dismissed---Validity---Registration Book of the vehicle transpired that the petitioner was a bona fide owner of vehicle in question---No rival claimant had claimed ownership of vehicle in question---Challan against the accused had been submitted in Court and vehicle in question had not been shown as case property in column 4 of challan, therefore, the said vehicle was not required by the prosecution---Vehicle in question could not be detained in Police Station for an indefinite period as it would decay and deteriorate the colour and parts of vehicle---Prosecution was directed to hand over the vehicle in question to the petitioner on Superdari---Petitioner was directed to produce the vehicle in question in the Trial Court as and when required.

Kifayatullah for Petitioner.

Deputy Advocate General for Respondent/State.

2020 M L D 1324

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

GILGIT-BALTISTAN BUSINESS GROUP (REGISTERED PAKISTAN ENGINEERING COUNCIL) through M.D. and 4 others---Petitioner

Versus

PROVINCIAL PROGRAMME DIRECTOR 10 BILLION TREE TSUNAMI PROGRAMME/PROJECT DIRECTOR GREEN PAKISTAN PROGRAMME GILGIT-BALTISTAN and 3 others---Respondents

Writ Petition No. 8 of 2020, decided on 6th February, 2020.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---

----Arts. 71(2) & 86(2)---Writ petition---Administrative action/ arrangement---Interference---Scope---Single tender for procurement of plants and plantations---Contention of petitioners was that single consolidated tender was not feasible and authorities should have invited bids for the project at district level of each district---Validity---Authorities, after preparing bidding documents and fulfilling all codal formalities had invited sealed bids for supply of plants from registered firms---Procuring agency had the prerogative to make administrative arrangements and decision with regard to procurement of items---Court could not interfere in the administrative functions of the department---No Fundamental Right of petitioners had been infringed by the authorities to invoke writ jurisdiction of Chief Court---Authorities had allocated plants to be procured for each district---Chief Court, however, directed the authorities to submit quarterly progress report in the Court with regard to plantation and survival of plants in each district---Writ petition was dismissed, accordingly.

Ehsan Ali for Petitioners.

Assistant Advocate General along with Raja Shakeel Ahmad for Respondents.

2020 M L D 1357

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

Malik EBADAT KHAN and 2 others---Petitioners

Versus

SAEEDULLAH YOUSAFZAI and another---Respondents

Civil Revisions Nos.85 and 86 of 2019, decided on 18th October, 2019.

(a) Defamation Ordinance (LVI of 2002)---

----Ss. 3 & 12---Limitation Act (IX of 1908), Ss. 3 & 5---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for defamation and damages---Limitation---Plaint, rejection of---Scope---Defendant moved application for rejection of plaint on the ground that suit was time barred---Trial Court dismissed the said application---Validity---Under Defamation Ordinance, 2002, period for filing a suit for damages on account of defamation was six months from publication of defamatory material---Defamation Ordinance, 2002, being a special law, Limitation Act, 1908, was not applicable in the matter---Present suit having been filed after period of limitation was time barred---Plaintiffs had not filed any application for condonation of delay in filing the suit---Trial Court was not required to frame issues and record evidence as plaint was liable to be rejected on limitation---Suit instituted after period of limitation should be dismissed although limitation had not been set up as defence---If, however, from the statement of plaintiff suit appeared to be barred by limitation then plaint should be rejected---Trial Court had committed material irregularity and illegality while dismissing the application for rejection of plaint---Plaint was rejected under O. VII, R. 11, C.P.C., in circumstances---Revision was allowed accordingly.

PLD 1985 SC 153 and 2003 YLR 2082 rel.

(b) Limitation Act (IX of 1908)---

---S. 3---Suit instituted after limitation period---Effect---Suit instituted after period of limitation was to be dismissed although limitation had not been set up as defence.

PLD 1985 SC 153 and 2003 YLR 2082 rel.

Mohammad Nafees for Petitioners.

Basharat Ali for Respondents.

2020 M L D 1411

[Gilgit Baltistan Chief Court]

Before Malik Haq Nawaz and Ali Baig, JJ

MUHAMMAD IBRAHIM

and another---Appllant/Complainant

Versus

KOUSAR HUSSAIN---Respondent/Accused.

Criminal Appeals Nos. 35 and 43 of 2018, decided on 17th June, 2019.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Appeal against acquittal---Grave and sudden provocation---Effect---Accused/ respondent appeared at police station and verbally reported that he had committed murder of deceased and his real sister by opening fires with .30-bore pistol causing injuries with hatchet, finding them in compromising position in his house---Record showed that accused had admitted that he had committed brutal murder of both the deceased but he could not be permitted to take law into his own hand in the name of honour, when other recourses were available to him---Stance of the accused immediately after the occurrence was further corroborated by recovery of weapons of offence i.e. 30-bore pistol and an axe from the house of the accused and positive report of Forensic Science Agency, DNA and Serologist Analysis Report---Medico Legal Reports/autopsy reports of dead bodies of both the deceased also supported prosecution's version of the occurrence---Circumstances established that prosecution had proved its case against the accused beyond any shadow of reasonable doubt---Evidence showed that the accused committed murder of both the deceased in a heat of passion and after losing self control---Accused, in circumstances, deserved to be dealt with leniently, as there was no justification available to the male deceased to be present in the house of the accused in such odd hours of night---Accused had sufficient time to hand over the male deceased to the law enforcing agencies as deceased was empty handed---Appeal filed by the complainant and State were allowed and accused was convicted under S. 302(c) P.P.C. and sentenced to suffer rigorous imprisonment for ten years on two counts with benefit of S.382-B Cr.P.C. in circumstances.

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

----S. 154---First information report---Scope---Initial report made/lodged by the accused before the police as complainant in the case would be admissible against him as his admission.

PLD 1963 SC 156; PLD 1975 SC 607 and 2002 SCMR 1568 rel.

Manzoor Hussain for Appellant.

Johar Ali for Respondent/Accused.

Deputy Advocate General for the State

2020 M L D 1530

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

MUHAMMAD HUSSAIN

and another---Petitioners

Versus

KAZIM and 2 others---Respondents

Civil Revision No.42 of 2018, decided on 8th October, 2019.

(a) Limitation Act (IX of 1908)---

----Art. 120---Qanun-e-Shahadat (10 of 1984), Art. 114---Civil Procedure Code (V of 1908), S. 11---Suit for declaration---Limitation---Gift deed---Res judicata, principle of---Applicability---Contention of plaintiff was that impugned gift deed was based on fraud---Trial Court dismissed the suit on the ground of limitation but Appellate Court decreed the same---Validity---Limitation for filing a declaratory suit was six years---Impugned gift deed had been executed on 21-01-1978 whereas suit had been filed on 18.09.1989---Suit of plaintiff was time barred, in circumstances---Earlier, daughter of plaintiff filed a suit on the same cause of action which had been dismissed---Plaintiff in the said suit while submitting written statement had admitted the execution and genuineness of impugned gift deed---Plaintiff could not resile from his earlier statement and principles of estoppel and res judicata were applicable, in circumstances---Owner of a property during his life time could dispose of the same---Impugned judgment and decree passed by the Appellate Court suffered from legal and factual infirmity which could not sustain and same were set aside---Judgment and decree passed by the Trial Court were restored---Revision was allowed, in circumstances.

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

----S. 42---Limitation Act (IX of 1908), Art.120---Suit for declaration---Limitation---Suit for declaration could be filed within six years.

Syed Muhammad Ali Shah for Petitioners.

Muhammad Ali Margoob for Respondents.

2020 M L D 1546

[Gilgit Baltistan Chief Court]

Before Ali Baig, J

SHER AFZAL---Petitioner

Versus

JANGI BAHADUR---Respondent

Civil Miscellaneous No.481 of 2019, decided on 13th March, 2020.

Civil Procedure Code (V of 1908) ---

----S. 114 & O. XLVII, R. 1---Limitation Act (IX of 1908), S. 5---Review---Scope---Limitation---Condonation of delay---Review had a very limited scope---Power of review could be exercised in the event of recovery of new evidence which was not within the knowledge of petitioner or could not be produced by him at the time when impugned order was passed---Judgment/order could be reviewed on account of some mistake or error on the face of record---Review proceedings could not partake rehearing of a decided case---Party could not be allowed to convert a review petition into an appeal---Petitioner had agitated the same grounds which were agitated at the time of arguments of main case---Petitioner had not been able to demonstrate any of the error in the impugned judgment---Review petition was barred by time---Nothing was on record that petitioner remained as indoor patient in the hospital and was bed ridden and during that period he was unable to contact his counsel---Petitioner had not made out a sufficient cause for condonation of delay in filing of present review petition---Aggrieved person to pursue his legal remedies with diligence---If suit or petition was filed beyond limitation then delay of each day had to be explained---Review petition was dismissed, in circumstances.

Ehsan Ali for Petitioner.

Zafar Iqbal for Respondent.

2020 M L D 1643

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

ALI ABAD---Petitioner/Plaintiff

Versus

Haji NIAMAT KHAN and 14 others---Respondents/Defendants

Civil Revision No.26 of 2018, decided on 16th April, 2019.

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

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 113---Contract Act (IX of 1872), S. 2---Suit for specific performance of will deed---Maintainability---Scope---Agreement---Requirements---Contention of plaintiff was that his father had delivered suit property in favour of defendant temporarily as plaintiff was minor at that time but defendant had not returned suit land to the plaintiff on attaining his majority---Suit was dismissed concurrently being time barred---Validity---Plaintiff had filed present suit after lapse of 37/39 years of his attaining the age of majority---Suit was time barred, in circumstances---Courts below had rightly dismissed the suit---Will deed was not a valid agreement to file a suit for specific performance---Suit for specific performance could only be filed for performance of an agreement to sell---Two persons i.e. promisee and promiser who had agreed with their free consent for a lawful object and legal consideration were necessary to constitute a valid agreement---Alleged will deed contained only signature/thumb impression of father of plaintiff and there was no offer by one person and acceptance by the other---Said will deed neither disclosed the description of the parties nor the terms and conditions of agreement and it did not fulfil the requirements of agreement---Suit of plaintiff was not maintainable, in circumstances---Plaintiff had failed to prove his case by adducing reliable evidence in the Trial Court---No illegality or irregularity had been committed by the Courts below while passing the impugned judgments and decrees---Revision was dismissed, in circumstances.

1990 SCMR 28 rel.

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

----S.12---Limitation Act (IX of 1908), Art. 113---Suit for specific performance of agreement to sell---Limitation---Limitation for filing a suit for specific performance of agreement to sell was three years from the date fixed for performance.

Nazir Ahmed for Petitioner.

Raja Shakeel Ahmed for Respondents Nos.1 to 6 and 8.

2020 M L D 1713

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

Numberdar RAHIM KHAN

and others---Petitioners

Versus

SHERBAZ BLOCK MAKERS

through Sherbaz and others---Respondents

Civil Revisions Nos.124, 132 and 105 of 2019, decided on 27th November, 2019.

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

----S.54---Ban on transportation of construction material---Suit for permanent injunction---Plaintiffs filed suit for permanent injunction that they were entitled for transportation of construction material to the city and defendants be restrained from transportation of said construction material---Trial Court without obtaining written statement from defendants restrained them from transportation of construction material to the city but Appellate Court set aside the said order---Validity---Plaintiffs in the present suit had sought only perpetual injunction and had not prayed for declaration of ownership of suit land---Consequential relief of permanent or interim injunction could not be granted to the plaintiffs without declaring their title---Every citizen had Fundamental Right to carry any sort of business and sell items in any part of the country---Trial Court had erred in law by restraining the defendants from transportation of construction material---Appellate Court had passed impugned order beyond the pleadings of the parties and had touched merits of the case, which was not permissible under the law---Another suit with regard to suit property was sub-judiced wherein ad-interim injunction had been granted with the consent of the parties which was still in field---Impugned order passed by the Appellate Court was not sustainable in the eye of law---Impugned orders passed by the Courts below were set aside and case was remanded to the Trial Court for decision afresh after obtaining written statement of defendants and recording evidence of the parties---Revision was allowed, in circumstances.

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

----O.XXXIX, Rr. 1 & 2---Temporary injunction, grant of---Conditions.

Following are the conditions before an injunction could be granted by a Court.

(a) The property in dispute should be in danger of being wasted, damaged or alienated to any party to the suit.

(b) The suit property should be in danger of being wrongfully sold in execution of decree.

(c) Condition of prima facie existence of right in the applicant and its infringement by the respondent.

(d) Irreparable loss or injury will occur to the plaintiff if injunction is not granted.

(e) Mere fact that a prima facie case has been established will not entitle the plaintiff to an injunction unless the aforesaid conditions are fulfilled.

Johar Ali for Petitioners (in C. Rev. No.124 of 2019).

Izhar Ahmed for Respondents Nos.1 to 6 of Set-I (in C. Rev. No.124 of 2019).

Naveed Hussain for Respondents Nos.7 to 29 of Set-II (in C. Rev. No.124 of 2019).

Additional Advocate General for Respondents Nos.30 to 36 to Set-III (in C. Rev. No.124 of 2019).

Mohammad Hussain Shehzad and Mohammad Qasim Shehzad for Respondents Nos.38 to 41 of Set-III (in C. Rev. No.124 of 2019).

Naveed Hussain for Petitioners (in C.Rev. No.132 of 2019).

Additional Advocate General for Respondents Nos.1 to 7 (in C.Rev. No.132 of 2019).

Izhar Ahmed for Respondents Nos.9 to 16 (in C.Rev. No.132 of 2019).

Johar Ali for Respondents Nos.17 to 21 (in C.Rev. No.132 of 2019).

Mohammad Hussain Shehzad and Mohammad Qasim Shehzad for Respondents Nos.23 to 26 (in C.Rev. No.132 of 2019).

Additional Advocate General for Petitioners (in C. Rev. No.105 of 2019).

Izhar Ahmed for Respondents Nos.1 to 7 of Set-I (in C. Rev. No.105 of 2019).

Mohammad Hussain Shehzad and Mohammad Qasim Shehzad for Respondents Nos.33 to 37 of Set-II (in C. Rev. No.105 of 2019).

2020 M L D 1741

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

SANA KHAN and others---Petitioners

Versus

IQBAL and others---Respondents

Civil Revision No.87 of 2019, decided on 18th March, 2020.

Civil Procedure Code (V of 1908)---

----O.VII, R.11 & O.XXXIX, Rr.1 & 2---Suit for declaration, permanent injunction and cancellation of instrument---Plaint, rejection of---Trial Court while deciding petition for temporary injunction rejected the plaint on the ground that plaintiff had not exhausted the revenue forum---Appellate Court remanded the matter to the Trial Court with the direction to dispose of the suit after framing of issues and recording of evidence---Validity---Plaint could be rejected while deciding petition for temporary injunction if the plaint did not disclose a cause of action---Trial Court had rejected the plaint discussing evidence and touching merits of the case which was not permissible under the law---Plaint had been rejected when suit was not fixed for determination of question for its maintainability, which was not fair nor proper or judicious---Plaintiff had annexed a registered sale deed with the suit and Trial Court was to examine the said document at the trial---Trial Court had committed material irregularity and illegality while rejecting the plaint at the time of deciding an application for temporary injunction---Appellate court had rightly remanded the case to the Trial Court with the direction to decide the same after framing of issues and recording of evidence---No infirmity or illegality had been pointed out in the impugned judgment passed by the Appellate Court---Revision was dismissed, in circumstances.

2003 MLD 109 rel.

Mohammad Umar Farooq for Petitioners.

Ghulam Nabi for Respondent No.1.

Additional Advocate General for Respondents Nos.2 to 7.

2020 M L D 1765

[Gilgit-Baltistan Chief Court]

Before Ali Baig, J

EHLIAN-E-BUNJI

through representatives ---Petitioners

versus

FEDERAL GOVERNMENT

through Defence Secretary, Islamabad

and 7 others---Respondents

Civil Revision No.32 of 2017, decided on 18th March, 2020.

Civil Procedure Code (V of 1908)---

----O.XLI, R.19 & S.96---Limitation Act (IX of 1908), Arts.181 & 168--Suit for declaration and permanent injunction---Appeal was dismissed due to non-deposit of publication fee---Petition for readmission of appeal---Limitation---Suit was dismissed against which appeal was filed which was dismissed due to non-deposit of publication fee---Appellants moved application for readmission of appeal but same was dismissed being time-barred---Validity---No specific direction had been passed to the petitioners for deposit of publication fee in the present case---Notice issued by the Appellate Court had been returned after its service and no question for deposit of publication fee did arise---Presiding Officer was on leave and appeal was adjourned by the Reader of the Court for the date when same was dismissed due to non-deposit of publication fee---Date fixed by the Reader of the Court could not be treated as "date of hearing" of appeal---Appeal, in the present case, had been dismissed when same was not fixed for hearing, in circumstances---Article 181 of Limitation Act, 1908 did apply in the present matter which had provided a period of three years for filing appeal or petition---Impugned orders passed by the Appellate Court were set aside and petition for readmission of appeal was accepted---Appeal was remanded to the Appellate Court for decision on merits after hearing the parties---Revision was allowed, in circumstances.

Raja Shakeel Ahmed, Aneesullah and Umar Hussain for Petitioners.

Faqir Shakir and Didar Aman Shah for Respondent No.3.

Additional Advocate-General for Respondents Nos.4 to 7.

None for Respondents Nos.1, 2 and 8.

2020 M L D 1846

[Gilgit Baltistan Chief Court]

Before Wazir Shakeel Ahmed, C.J. and Ali Baig, J

KAMRAN and another---Petitioners

versus

The STATE---Respondent

Criminal Miscellaneous No.243 of 2019, decided on 14th November, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Transportation of narcotics---Bail, refusal of---Scope---Accused persons were alleged to have been apprehended while transporting 29 kilograms of charas---Accused persons were directly charged in the promptly lodged FIR---First accused was driving the vehicle while the second accused was conductor of the vehicle---Police had taken contraband into possession in the presence of marginal witnesses from the vehicle in question---Accused persons could not point out any background of ill-will or bitterness between them and the local police---Offence under S.9(c) of Control of Narcotic Substances Act, 1997 entailed a maximum sentence of death, as such the offence fell within the ambit of prohibitory clause of S.497, Cr.P.C.---Reasonable grounds existed to believe that the accused persons were prima facie involved in the alleged offence---Petition for grant of bail was dismissed.

Amjad Hussain for Petitioners.

Deputy Advocate General for the State.

2020 M L D 1854

[Gilgit Baltistan Chief Court]

Before Ali Baig, J

ALI MADAD---Petitioner

versus

The STATE---Respondent

Criminal Revision No.25 of 2019, decided on 16th October, 2019.

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

----S. 516-A---Custody and disposal of property pending trial---Scope---Petitioner assailed the dismissal of his application under S.516-A, Cr.P.C.---Contention of petitioner was that someone had hired his car, who had allegedly abducted the daughter of complainant therefore, police arrested the alleged abductor, abductee and petitioner---Car of the petitioner was also impounded---Police, later on, released the petitioner under S.169, Cr.P.C., but did not return his car---Validity---Petitioner was the only person who had claimed superdari of the car as it was admittedly taken into possession by the police from the custody and direct control of the petitioner---Car was parked at the police station in an open space without any shadow or cover and would decay if the same was kept there for an indefinite period---Car was given to the petitioner on superdari.

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

----S. 516-A---Order for custody and disposal of property pending trial in certain cases---No rival claimant---Scope---Where there is no rival claimant for superdari of the vehicle then the vehicle should ordinarily be given on superdari to the person from whom it was taken into possession by the police.

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

----Ss.516-A & 517---Order for custody and disposal of property pending trial---Order for disposal of property regarding which offence committed---Determination of ownership---Scope---Court is not competent to investigate into the question of title of property as its jurisdiction is confined under S. 516-A, Cr.P.C. or for that matter under S.517, Cr.P.C. to determine the entitlement of possession and not title to the property---Question of ownership is to be determined by a Civil Court.

Burhan Wali for Petitioner.

Deputy Advocate General for the State.

2020 M L D 1975

[Gilgit Baltistan Chief Court]

Before Malik Haq Nawaz, J

SAIF-UR-REHMAN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous No.212 of 2019, decided on 4th September, 2019.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324, 337-F & 109---Attempt to commit qatl-i-amd, ghayr-jaifah and abetment---Bail, grant of---Accused, under the age of sixteen years---Scope---Accused was alleged to have attempted at the life of the complainant's brother---School leaving certificate of the accused showed his date of birth as 13 years and 08 months---Prosecution had not alleged that the certificate was forged or fabricated---Bail was allowed on the ground of minority as the case of accused fell within the ambit of S.497(1), Cr.P.C.

2007 PCr.LJ 762; 1994 PCr.LJ 1102; 2012 SCMR 1400; PLD 2012 Lah. 433; 2006 Pcr.LJ 1450 and 1999 MLD 1526 ref.

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

---S. 497---Bail---New grounds---Scope---Any ground not mentioned in bail petition can be raised at any time of the arguments with the exception that the opposite party should not be taken by surprise.

Shahbaz Ali for Petitioner.

Mashal Khan and Islam-ud-Din for the Complainant.

Dy. Advocate-General for the State.

2020 M L D 2037

[Gilgit Baltistan Chief Court]

Before Ali Baig, J

RASH KHAN and 3 others---Petitioners

Versus

BEHRAM KHAN through Legal Heirs and others---Respondents

Civil Miscellaneous No.229 of 2016, decided on 4th September, 2019.

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

----O. I, R.10---Parties to suit---Court may strike out or add parties---Scope---Petitioners filed application under O. I, R.10(2), C.P.C., on the ground that their land was included in the suit land by the plaintiffs but they were not impleaded as defendants in the suit with mala fide intention---Validity---Petitioners had not annexed any valid document with the petition to show their ownership of the suit land---Application was filed by the petitioners after about 6 years of the filing of the suit---Petitioners were neither necessary nor proper party to the suit, effective decree in their absence could be competently passed---Petition was dismissed.

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

----O. I, R. 10---Parties to suit---Court may strike out or add parties---Scope---Intervener under the provisions of O. I, R.10(2), C.P.C., can be impleaded as a party only when either it is a necessary or a proper party---Necessary party is one in whose absence no effective adjudication can take place or decree passed.

Aurengzeb for Petitioners.

Mubarak Ali for Respondents Nos. 1 and 2 (Set-II).

Sher Alam for Respoondents Nos. 1, 2 and 7 (Set-II).

Addl. A.G. and DAG (Civil) for Respondents Nos. 3 to 6.

2020 M L D 55

[High Court (AJ&K)]

Before Ch. Khalid Yousaf, J

Hafiz SHAHID KHAN and another---Appellants

Versus

SADIA REHMAN and 2 others---Respondents

Family Appeal No. 16 of 2019, decided on 9th May, 2019.

(a) Guardians and Wards Act (VIII of 1890)---

----S. 25---Custody of minor---Alien environment---Scope--- Appellant/ father assailed order of Guardian Judge whereby his application for custody of minor was dismissed---Validity---Both the parents of minor had contracted second marriage---Minor had remained with her mother from her childhood; therefore, she was more familiar and akin to her mother as compared to her father---Mother was looking after the minor in an appropriate manner and the minor was also studying in the same school where her mother was teaching---Minor was a female child of 4 years of age, who required constant care of her mother---Nothing had been brought on record which indicated that the minor child was not being brought up and looked after in an appropriate manner---Father was performing his duties in Army, where he was not permanently stationed at one place---Putting minor in an alien environment was not in her interest---Paramount factor in case of female minor child was guidance of her mother which had no substitute as no one could look after the minor as compared to her mother---No infirmity or illegality was found in the impugned order---Appeal was dismissed.

(b) Guardians and Wards Act (VIII of 1890)---

----S. 17---Custody of minor---Matters to be considered by Court---Scope---Paramount consideration while deciding the question of custody of the minor is the welfare of the minor which has to be seen in view of the age, sex and religion---Muslim Personal Law has also to be taken into consideration---Mother, under Sharia Law, is entitled to retain the custody of her male child until he attains the age of 7 years and custody of female child till her puberty---Mother's right continues even though she is divorced---Where mother contracts second marriage, she loses the right of custody of her minor child---Where husband also contracts second marriage then the court has to see the convenience and welfare of the minor with more care.

Abdur Rauf Khan v. Public At-large 2008 YLR 1448 rel.

2020 M L D 160

AJ&K High Court

[Shariat Appellate Bench]

Before Raza Ali Khan, J

MUHAMMAD LATIF---Petitioner

Versus

ZAHEER IQBAL and another---Respondents

Revision Petition No. 04 of 2019, decided on 16th April, 2019.

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

----S. 540-A--- Dispensing with the attendance of accused---Requirements---Under S.540-A, C.P.C., accused could be exempted from personal appearance subject to conditions mentioned in the said section---First condition for exemption from personal appearance of accused was that there should be two or more accused persons before the court; second condition was that the accused seeking exemption should be before the court and third condition was that the accused seeking exemption had become incapable of remaining before the court---If first two conditions were fulfilled and the court, from whom the exemption was sought, was satisfied that the accused was unable to attend/come before the court and was represented by a pleader, could be exempted from personal appearance and proceeded with such inquiry or trial in his/her absence.

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

----S. 540-A--- Dispensing with the attendance of accused---Scope---Exemption under S. 540-A Cr.P.C. was discretion of the court, but that discretion always was to be exercised in judicious manner and not arbitrarily.

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

----S. 540-A---Dispensing with the attendance of accused---Scope---Act of going abroad for earning livelihood was sufficient ground for exemption from personal appearance. (d) Criminal Procedure Code (V of 1898)---

----S. 540-A---Dispensing with the attendance of accused---Scope---Accused, during trial, moved application for exemption from personal appearance before Trial Court which was accepted---Validity---Record revealed that accused moved application for exemption from personal appearance on the date when he was present before the Trial Court and it was stated that he wanted to go abroad for earning his livelihood, however, without obtaining order from the court for his exemption he proceeded abroad---Accused had failed to wait till his application was allowed and proceeded abroad---High Court observed that Trial Court had to see the possibility of its ability to enforce the direction of personal attendance of the accused at subsequent stage if and when so deemed necessary by the court in case he was granted exemption from attendance---Revision petition was accepted by setting aside the impugned order, resultantly, the application filed by accused for exemption from personal appearance under S. 540-A Cr.P.C. was rejected.

PLD 1987 Lah. 288 ref.

PLD 2004 SC 160 and Tassawar Rasheed v. Additional Sessions Judge, Chakwal and others 2010 MLD 1395 rel.

Raja Inamullah for Petitioner.

2020 M L D 458

[High Court (AJ&K)]

Before Azhar Saleem Babar, J

GHULAM HUSSAIN and 8 others---Appellants

Versus

Kh. MOHAMMAD AZAM and 7 others---Respondents

Civil Appeal No. 57 of 2014, decided on 5th July, 2019.

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

----Ss. 12 & 8---Limitation Act (IX of 1908), Art. 113---Suit for specific performance of agreement to sell---Suit for recovery of specific immovable property---Limitation---Concealment of facts---Unclean hands---Scope---Plaintiff filed suit for possession on 03-07-1986 claiming therein that the defendant was handed over the suit property for cultivation however he got registered fake and bogus mutation---Defendant filed a declaratory suit on 04-11-1990 for specific performance claiming therein that the plaintiff had entered into an agreement to sell with him on 09-10-1982 and a week or 10 days ago, plaintiff refused to execute the sale deed---Defendant had previously filed a suit for declaration on 07-04-1983 claiming ownership of suit property on the basis of oral sale of the year 1969 and adverse possession of suit property for over 12 years---Trial Court had decreed the suit of plaintiff and dismissed that of defendant---Application for withdrawal of suit by defendant with permission to file a fresh suit was accepted by appellate court---Defendant, thereafter, filed a suit for specific performance---Plaintiff, while referring to Art. 113 of Limitation Act, 1908 contended that maximum limitation for filing a suit for specific performance of contract was 3 years and that agreement to sell contained a period of 3 months for execution of sale deed---Validity---Plaintiff had agreed to execute the sale deed as soon as the defendant provided his 'State Subject Certificate' and paid the outstanding amount---No evidence was available on record to show that the plaintiff had demanded the outstanding amount or the 'State Subject Certificate'---Period of limitation began to run from date fixed for performance, or if no such date was fixed, when the defendant had notice that performance was refused---Period of limitation for filing the suit for specific performance started running from 10 days before the institution of suit---Both parties had not come to court with clean hands and had suppressed the material facts---Plaintiff had admitted the existence of agreement to sell in his written statement however, he had not admitted its execution---Appeal was accepted and the plaintiff was directed to execute the sale deed in favour of the defendant.

2016 CLC 1268; 2000 YLR 2392; 2001 CLC 946; PLD 2016 Lah. 487 and PLD 2016 Lah. 487ref.

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

----O. XLI, R. 1---Form of memorandum of appeal---Non-signing of memorandum of appeal by appellant or his pleader---Effect--- Respondent objected to the maintainability of appeal and contended that the appeal was filed by the advocate who had been a pleader of the appellants in the court below; that the said advocate was not competent to plead the case on behalf of appellants; that the memorandum of appeal was not signed by the appellants and that the advocates, later on, appointed by appellants had filed their vakalatnama after expiration of period of limitation---Validity---Non-signing of appeal by the appellants or their duly appointed pleader was an irregularity which did not affect the maintainability of the appeal---Advocate who had filed the appeal, after gaining knowledge of the fact that he was not competent to plead the case on behalf of appellants had withdrawn his power of attorney which was cancelled by the court---Said advocate was replaced by advocates duly appointed by appellants---Filing of appeal by the advocate not appointed by appellants was not an illegality but was irregularity.

Aftab Ahmed Awan for Appellants.

2020 M L D 594

[High Court (AJ&K)]

Before Raja Sajjad Ahmad Khan, J

ALI SHAN and 3 others---Petitioners

Versus

The STATE through Additional Advocate General, Mirpur---Respondent

Criminal Revision Petition No.166 of 2018, decided on 28th February, 2019.

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

----S. 265-F---Evidence of prosecution---Closure of right of cross-examination---Refusal of accused to cross-examine witness---Effect---Petitioner assailed order of Trial Court whereby his right of cross-examination was closed---Examination-in-chief of the witness was recorded but despite repeated calls counsel of the petitioner did not appear before the Trial Court and made request through clerk for adjournment, which was refused and thereafter counsel appeared before the court, insisted for adjournment and refused to cross-examine the witness---Trial Court closed the right of cross-examination as counsel of petitioner was afforded as many as five opportunities for cross-examination---Held; opportunity of cross-examination was not availed by counsel of accused and when a party or his counsel failed to avail the opportunity of cross-examination or refused the same High Court refused to interfere in revisional jurisdiction---Negligence on the part of counsel was binding upon a party which had engaged him/her---Where a party engaged a counsel who lacked sense of responsibility to the court, it was the party who had to suffer and not the other side---Observation of Trial Court that five opportunities were provided to the counsel of petitioner for recording the statement of witness was incorrect---High Court, in the interest of justice, provided only one and final opportunity to the petitioner for cross-examination on the witness---Revision petition was accepted.

(b) Bench and Bar---

----Advocate is officer of the court and court expect him/her to help the court to do justice between the litigant public in accordance with law---Role of advocate is to uphold the dignity and purity of the court---Advocate is duty bound to appear before the court when it takes up the case of accused pending before it and he is not expected to remain absent without informing the court or showing of sufficient or reasonable cause---Advocate was to show respect towards the court and appear in the court with dignity and maintain the respect of Judicial Officer.

Ch.Kabeer Ahmad Hashim for Petitioner.

2020 M L D 609

[High Court (AJ&K)]

Before Ch. Muhammad Munir and Raza Ali Khan, JJ

MUHAMMAD MAROOF KHAN---Appellant

Versus

The STATE through Advocate General, Azad Kashmir---Respondent

Criminal Appeals Nos. 3 and 4 of 2005, decided on 12th September, 2019.

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

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S. 342---Azad Jammu and Kashmir Islamic Penal Laws Act (XI of 1974), S. 26(2)---Qatl-i-amd, common intention---Examination of accused---Purgation of witnesses---Scope---Accused persons were charged for committing murder---Record transpired that accused was not confronted with the documentary evidence, i.e. site plan, details of site plan and post-mortem report during his statement under S.342, Cr.P.C.---Omission on the part of Trial Court was not merely an irregularity incurable under S. 537, Cr.P.C. but the same was downright illegal, which had vitiated the conviction and sentence---Where a piece of evidence was not put to the accused while recording his statement under S. 342, Cr.P.C., the appellate court had the option either to remand the case for re-examination of the accused or exclude such piece of evidence from consideration---Purgation of the prosecution witnesses was not conducted under S. 26(2) of Azad Jammu and Kashmir Islamic Penal Laws Act Act, 1974 which was necessary and judgment pronounced without purgation of witnesses was illegal---High Court remanded the case to the Trial Court for re-trial from the stage of recording the statements of accused under S. 342, Cr.P.C. and for re-writing the judgment after conducting purgation of the prosecution witnesses.

Abdul Rasheed and 3 others v. Abdul Ghaffar and 5 others 2001 PCr.LJ 524 and Hassan Muhammad v. The State PLD 1989 SC (AJ&K) 5 rel.

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

----S. 342---Examination of accused---Scope---Object of examining the accused under S. 342, Cr.P.C. is that all the relevant evidence and material produced against him by the prosecution to establish grounds for criminal penalty may be put to him so that he may explain his conduct in respect of such incriminating material---Conviction of accused cannot be based on such material or evidence which was not put to the accused at the time when his statement under S. 342, Cr.P.C. was recorded---Each and every material piece of evidence being relied upon by the prosecution against accused person must be put to him at the time of recording his statement under S. 342, Cr.P.C., so as to provide him an opportunity to explain his position in that regard and denial of such opportunity to the accused person defeats the ends of justice---Failure to comply with the mandatory requirements vitiates the trial.

Sardar Javaid Nisar for the Complainant/Appellant.

Sardar Kamran Khalil for the Convict/Appellant.

2020 M L D 684

[High Court (AJ&K)]

Before Raja Sajjad Ahmad Khan, J

WAJID SHABBIR---Petitioner

Versus

ZUBEDA and another---Respondents

Criminal Revision Petition No.74 of 2018, decided on 17th May, 2019.

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

----S. 249-A---Power of Magistrate to acquit accused at any stage---Examination of prosecution witnesses---Scope---Petitioner assailed the dismissal of his application filed under S.249-A, Cr.P.C.---Seven witnesses were cited in the calender of challan and evidence of only two witnesses were recorded---Evidence of five witnesses including complainant was yet to be recorded when the accused moved an application under S. 249-A, Cr.P.C.---Evidence of remaining important witnesses i.e. complainant, recovery witnesses and investigating officer was essential for a just decision of the case, therefore, the Trial Court had rightly dismissed the application under S.249-A, Cr.P.C.---Revision petition was dismissed.

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

----S. 249-A---Power of Magistrate to acquit accused at any stage---Examination of prosecution witnesses---Scope---Application under S.249-A, Cr.P.C. can be moved during trial at any stage and the proceedings under S.249-A, Cr.P.C. enable an accused, during trial, to obtain an order of acquittal, even before the examination of witnesses, if from the material placed on the record the court is satisfied that the charge is groundless or there is no probability of the accused being convicted; but for the safe administration of justice it will not be improper if the evidence of prosecution witnesses is recorded---Revision petition was dismissed.

Sardar Tabikh Anwar for Petitioner;

Raja Ejaz Ahmad for Complainant-Respondent No.1

2020 M L D 736

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, C.J. and Muhammad Sheraz Kiani, J

Mirza KAMRAN BAIG---Petitioner

Versus

UNIVERSITY OF AZAD JAMMU AND KASHMIR, MUZAFFARABAD through Vice Chancellor and 5 others---Respondents

Writ Petition No. 1308 of 2013, decided on 21st October, 2019.

(a) Educational institution---

----Allegation of violation of Code of Conduct of the University---Suspension of admission of the student---Maxim: Audi alteram partem, principle of---Applicability---Scope---University imposed major penalty upon the student against which he filed an appeal but same was dismissed---Contention of petitioner was that his appeal had been dismissed without affording opportunity of hearing---Validity---Petitioner had not been afforded opportunity of hearing before passing the impugned order---Impugned order had been passed in violation of principle of audi alteram partem and was bad in the eye of law---Impugned order was set aside having been issued without lawful authority---University was directed to decide the appeal of petitioner afresh after affording him an opportunity of hearing---Writ petition was allowed, in circumstances.

Muhammad Rafique Chaudhary, S.O. presently posted in Prime Minister Secretariat J&K and another v. Muhammad Yaqoob Janjua and 8 others 2016 CLC 1240; Muhammad Khurshid and another v. Secretary Education Schools and 4 others 2011 SCR 175 and Ali Muhammad v. State PLD 2010 SC 623 rel.

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

----O. VIII, R. 5---If any fact had not been denied specifically or by necessary implication, same was to be deemed to have been admitted.

Qurban Hussain v. Mst. Bashir Begum and 6 others PLD 1986 SC (AJ&K) 109 rel.

Kh. Akbar for Petitioner.

2020 M L D 1584

[High Court (AJ&K]

Before Azhar Saleem Babar

and Muhammad Sheraz Kayani, JJ

FIZZA MURTAZA MUGHAL---Petitioner

Versus

JOINT ADMISSION COMMITTEE

through Chairman and others---Respondents

Writ Petition No.254 of 2018, decided on 7th February, 2019.

(a) Admission Policy for MBBS and BDS in Medical/Dental Colleges of Pakistan and Azad Kashmir, 2017---

----Cl. 10---MBBS and BDS (Admission, House Job and Internship) Regulations, 2018, Reglns. 8, 9 & 10---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 15 & 17---Educational institution---State subject of Azad Jammu and Kashmir seeking admission in MBBS Programme against the seat reserved for the student of Indian Occupied Kashmir---Nomination of a candidate from Indian Occupied Kashmir by the Foreign Office of Pakistan---Swap-over policy---Scope---Contention of petitioner was that she being state subject of Azad Jammu and Kashmir was entitled for admission in MBBS Programme against the seat reserved for the candidates of Indian Occupied Kashmir due to their non-availability---Plea of authorities was that nomination against reserved seats for admission in MBBS Programme for the candidates of Indian Occupied Kashmir from foreign Office had been received to the Admission Committee---Validity---Twenty five percent quota had been reserved for admission in MBBS Programme for the refugees i.e. 19% for refugees of 1947 settled in Pakistan and 6% for the refugees of 1989 settled in Indian Occupied Kashmir---Allotment of vacant seats for admission in MBBS Programme due to non-availability of any candidate from Indian Occupied Kashmir through policy of swap over to the refugees was discriminatory and against fundamental rights of the other state subjects living in Azad Jammu and Kashmir-- Indian Occupied Kashmir was an integral part of the State of Jammu and Kashmir and all subjects of the State were equal in the eye of law---Preference to one unit or subject over another unit or person was discrimination under the law---Unrestricted power given to the Foreign Office of Pakistan to nominate any candidate for admission in MBBS Programme was not only contrary to the law and Constitution but also against the norms of justice---Candidate who did not secure merit position could not be admitted against any vacant seat of MBBS Programme---If a student after the institution had left the same then the seat which had become vacant should be filled from the waiting list in accordance with law---When a seat pertaining to foreign or self finance quota had become vacant then same should be transferred to open quota---Swap over policy was not permitted under the law---If a seat reserved for Indian Occupied Kashmir candidates had become vacant due to non-availability of eligible candidate then same should be transferred to open merit quota or for all the eligible candidates of the State---When any rule, regulation, policy or notification was against the law or any provision of Constitution then same was to be struck down being void---Impugned Cl. 10 of Admission Policy for MBBS and BDS in Medical/Dental Colleges of Pakistan and Azad Kashmir, 2017, was not only contrary to the Pakistan Medical and Dental Council Rules and Regulations but also derogatory to the fundamental rights of the other subjects of the State of Azad Jammu and Kashmir---Name of petitioner was listed below in the merit list and she was not entitled to seek direction for her admission---Impugned Cl.10 of Admission Policy for MBBS and BDS in Medical/Dental Colleges of Pakistan and Azad Kashmir, 2017, was declared as void and non-existent-Notification for delegation of powers to the Principals of Medical Colleges for admission in MBBS Programme being repugnant to the provisions of relevant Regulations was set aside---Authorities were directed that in future in case of becoming vacant any seat reserved for students of Indian Occupied Kashmir the same should be transferred to open merit quota for all the state subjects and same should be filled according to general order of merits determined from the already prepared waiting list---Writ petition was accepted in circumstances.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---"Aggrieved person"---Determination---Any restriction, which frustrate or impede the pursuit of a legal activity in the exercise of right conferred on a person by the Constitution would result him making an "aggrieved party" to challenge said restriction---Party who stands to lose or gain an advantage by observance or non-observance of the law is an "aggrieved party".

PLD 1988 SC 416; PLD 2002 SC(AJ&K) 1 and PLD 2001 SC(AJ&K) 1 rel.

Sardar M.R. Khan for Petitioner.

Ch. Zafar Mehmood for Respondent No20.

Sardart Shoukat Ali for Respondent No.1.

Syed Sayyad Hussain Gardezi for Respondent No.3.

Kh. Junaid Ahmed Pandat for Respondents Nos. 16 to 19.

2020 M L D 1938

[High Court (AJ&K)]

Before Raza Ali Khan and Raja Sajjad Ahmad Khan, JJ

KHAN MUHAMMAD and another---Appellant

versus

The STATE and another---Respondents

Criminal Appeals Nos.18 and 25 of 2019, decided on 9th January, 2020.

(a) Azad Jammu and Kashmir Control of Narcotic Substances Act, 2001---

----S. 9(c)---Possession of narcotics Appreciation of evidence---Benefit of doubt---Delay in sending samples to Forensic Laboratory---Non-examination of sample-bearer---Safe custody---Scope---Accused was alleged to have been found in possession of 1250 grams of charas---Sample was received by the Chemical Examiner after about two months of the recovery and no explanation was available on record as to whether the sample remained in safe custody or not---Person who had submitted the sample in the office of Chemical Examiner was not cited as a witness nor was he produced---Only 10 grams of charas was sent to the Forensic Laboratory but the Forensic Laboratory received 14.75 grams of charas, which made the whole prosecution story doubtful---Evidence produced by prosecution was full of contradictions and discrepancies which created further doubt---Appeal against conviction was allowed, in circumstances.

Akhtar Iqbal v. The State 2015 SCMR 291 rel.

2015 SCMR 1002; 2012 SCMR 577 and PLD 2019 Quetta 96 ref.

(b) Azad Jammu and Kashmir Control of Narcotic Substances Act, 2001---

----S. 25---Mode of making searches and arrest---Scope---Police witnesses can be relied upon in the cases under Azad Jammu and Kashmir Control of Narcotic Substances Act, 2001 but where only police personnel are witnesses, Court must scrutinize the evidence with greater degree of circumspection.

(c) Azad Jammu and Kashmir Control of Narcotic Substances Act, 2001---

----S. 29---Presumption from possession of illicit articles---Initial burden of proof---Scope---Prosecution is always bound to discharge the basic onus of proof---Burden to prove the guilt of accused lies on the prosecution, though S. 29 of Azad Jammu and Kashmir Control of Narcotic Substances Act, 2001 creates some exception to general principle but even in presence of said section prosecution cannot be absolved from its basic duty to prove the case against accused beyond any shadow of doubt.

(d) Criminal trial---

----Benefit of doubt---Scope---Where any doubt arises in the prosecution story, its benefit goes to the accused and it is not necessary that there should be many circumstances creating doubt--- Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused will entitle him to its benefit, not as a matter of grace and concession but as a matter of right.

Sharafat Hussain Naqvi for Appellants.

Raja Ayaz Fareed, AAG for the State.

2020 M L D 379

[Islamabad]

Before Miangul Hassan Aurangzeb, J

GEMALTO MIDDLE EAST FZ-LLC---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Finance Division and others---Respondents

W.P. No. 3094 of 2018, decided on 16th October, 2019.

(a) Companies Act (XIX of 2017)---

----S. 441---Tender bidding process---Term 'legal proceedings'---Applicability---Disability provided in S. 441 of Companies Act, 2017 is with respect to legal proceedings etc., in respect of any contract, dealing or transaction--- Participation in a tender bidding process does not come within the meaning of a "contract", "dealing" or "transaction".

(b) Words and phrases---

----'Transaction'---Meanings.

Black's Law Dictionary (Fifth Edition) ref.

(c) Companies Act (XIX of 2017)---

----S. 441---Pubic Procurement Rules, 2004, R. 36---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Legal proceedings---Scope---Petitioner participated in a tender bidding process and sought to scrap procurement process and invite fresh tenders---Plea raised by authorities was that constitutional petition was not maintainable---Validity---If term 'any legal proceedings' was to include a petition, a sub-constitutional legislation could not impose a disability on a person from invoking Constitutional jurisdiction of High Court---Petition was filed under Art. 199 of the Constitution seeking writs of Mandamus and Prohibition and petitioner attempted to bring to fore aberrations in tender bidding process adopted by procuring agency for procurement of goods---Petitioner did not seek relief of award of contract in its favour and since its participation in tender bidding process could not be termed as "contract", "dealing" or "transaction", therefore, institution of constitutional petition was not hit by S. 441 of Companies Act, 2017---Preliminary objection taken by authorities to maintainability of petition was spurned---Constitutional petition was maintainable in circumstances.

Arshad Mehmood v. Commissioner/Delimitation Authority PLD 2014 Lah. 221 rel.

(d) Public Procurement Rules, 2004---

----R. 36(a)---Single Stage One Envelope---Procedure---Procuring agency does not violate any provision of Public Procurement Rules, 2004 by requiring pre-qualified bidders to submit their financial quotations only---Such procedure is in accordance with 'Single Stage One Envelop Procedure' as envisaged by R. 36(a) of Public Procurement Rules, 2004.

Shaheen Construction Company v. Pakistan Defence Officers Housing Authority 2012 CLD 1445; Pakistan Defence Officers Housing Authority v. Shaheen Construction Company 2013 CLC 476 and Shaheen Construction Company v. Pakistan Defence Officers Housing Authority 2012 CLC 1434 ref.

(e) Public Procurement Rules, 2004---

----R. 26(3)---Extending validity of bids---Prerequisite---Existence of 'exceptional circumstances' is a prerequisite for requiring bidders to extend validity of their bids---Once a procuring agency complies with requirements of R. 26(3) of Public Procurement Rules, 2004 by recording existence of such circumstances in writing, bidders can be asked to extend validity of their bids---Reasons recorded pursuant to R. 26(3) of Public Procurement Rules, 2004 were justiciable---Recorded reasons have to be such as would make out a case for a necessity in extension in bid validity period.

(f) Public Procurement Rules, 2004---

----R. 4---Procuring ethics---Gifts and gratuities by bidders---Effect---Procuring agency, under R. 4 of Public Procurement Rules, 2004 is obligated to 'ensure that procurements are conducted in a fair and transparent manner'---Ethics is basis on which most of procurement related principles, such as fairness, integrity and transparency are based---Procurement agencies must maintain integrity and show transparency in their behaviour---Procuring agency and/or its employees ought not to accept gifts of items sought to be procured through a tender of for that matter, any gifts from suppliers during procurement process---Making of gifts and gratuities by bidders to procuring agencies or their officers during procurement process was most certainly an unethical business practice and same merits condemnation in strongest terms---Gift made by a supplier to procuring agency may not be with intention of securing a contract but it certainly creates perception of being unethical---Prohibition on bidders to make gifts to procuring agencies or their employees and on procuring agencies or their employees from accepting gifts from bidders during procurement process is implicit in R. 4 of Public Procurement Rules, 2004---Such gifts influence procurement decisions in order to secure contracts---Bidders making gifts to procuring agencies or their employees breach requirements of fairness and transparency in R. 4 of Public Procurement Rules, 2004 and expose themselves not just to be taken to task by law enforcing agencies but also to be disqualified from further participation in procurement process.

(g) Public Procurement Rules, 2004---

----R. 4---Procuring ethics---Free of cost samples---Scope---When free-of-cost samples are supplied pursuant to terms of letter of intent and contract and not pursuant to an unsolicited offer made by supplier, such supplier cannot be said to have committed an unethical conduct in such respect.

(h) Companies Act (XIX of 2017)---

----S. 441---Pubic Procurement Rules, 2004, Rr. 31 & 36---Procurement process---Awarding of contract---Objection---Bid/pre-qualification documents---Submission after due date---Principles of natural justice---Applicability---Scope---Petitioner participated in a tender bidding process and sought to scrap procurement process and invite fresh tenders on grounds that successful bidder submitted pre-qualification documents after due date and decision of Grievance Redressal Committee (GRC) was violative of principles of natural justice---Validity---Where a procuring agency required bids or pre-qualification documents to be submitted within a stipulated deadline, a bidder could not be permitted to satisfy essential requirements of tender by supplementing its bid or pre-qualification documents along with documents filed after deadline---If principles of natural justice were violated in respect of any decision, it was indeed, immaterial whether same decision would have been arrived at in absence of departure from essential principles of natural justice---Decision taken in violation of principles of natural justice must be declared to be no decision and same was void---Decision of Grievance Redressal Committee taken in violation of principles of natural justice were void---Fact that decision of Grievance Redressal Committee was not challenged by petitioner would not obviate fact that it was void---High Court declared that pre-qualification of respondent company was in violation of terms and conditions of pre-qualification documents consequently, purchase order awarded to respondent was unlawful and of no legal consequences---Constitutional petition was allowed in circumstances.

S.I.S. Corporation (Pvt.) Limited v. Federation of Pakistan PLD 2018 Isl. 150; SIS Corporation (Pvt.) Limited v. Federation of Pakistan 2018 CLD 48; Muhammad Ayub and Brothers v. Capital Development Authority PLD 2011 Lah. 16; Ram Gajadhar Nishad v. State of UP (1999) 2 SCC 486; Monarch Infrastructure (Pvt.) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation (2000) 5 SCC 287; Medical Education Registration of U.K. v. Spackman [1943] 2 All ER 337 and Muhammad Swaleh and another v. United Grain and Fodder Agencies PLD 1964 SC 97 rel.

Trek Technologies Limited v. Icondor Telecom (Private) Limited 2018 CLD 668; Hala Spinning Mills Ltd. v. International Finance Corporation 2002 SCMR 450; Abdul Haque Baloch v. Government of Balochistan PLD 2013 SC 641; China Annag Construction Corporation v. K.A. Construction Co. 2001 SCMR 1877; JDW Sugar Mills Ltd. v. Province of Punjab PLD 2017 Lah. 68; S.I.S. Corporation (Pvt.) Ltd. v. Federation of Pakistan PLD 2018 Isl. 150; Kitchen Cuisine (Pvt.) Ltd. v. Pakistan International Airlines Corporation PLD 2016 Lah. 412; Independent Media Corporation (Pvt.) Ltd. v. Shoaib Ahmed Sheikh 2015 CLD 1448; Shafiq Traders v. Collector of Customs 2007 PTD 2092; Suo Motu Case No. 5 of 2010 PLD 2010 SC 731; SIS Corporation (Pvt.) Limited v. Federation of Pakistan 2018 CLD 48; Telkom SA Limited v. Merid Training (Pty) Ltd. Case No. 27984 of 2010; Mia Corporation (Pvt.) Ltd. v. Pakistan PWD PLD 2017 Isl. 29; Muhammad Ayub and Brothers v. Capital Development Authority PLD 2011 Lah. 16; Ram Gajadhar Nishad v. State of UP (1999) 2 SCC 486; Monarch Infrastructure (Pvt.) Ltd. v. Commissioner, Ulhasnagar Municipal Corporation (2000) 5 SCC 287; Siemens Public Communication Networks Private Limited v. Union of India (2008) 16 SCC 215; AIR CIRO v. Civil Aviation Authority 2017 CLC 126; West Bengal State Electricity Board v. Patel Engineering Company Limited (2001) 2 SCC 451; Habibullah Energy Limited v. WAPDA through Chairman PLD 2014 SC 47; Khawaja Muhammad Asif v. Federation of Pakistan PLD 2014 SC 206; Ramna Pipe and General Mills (Pvt.) Ltd. v. Sui Northern Gas Pipelines 2004 SCMR 1274; Iqtedar Ali Khan v. Department of Mines and Minerals PLD 2004 SC 773; Kay Bee International (Pvt.) Ltd. v. Secretary to the Government of Punjab PLD 2002 SC 1074; Ittehad Cargo Service v. Syed Tasneem Hussain Naqvi PLD 2001 SC 116; Airport Support Services v. The Airport Manager, Quaid-i-Azam International Airport, Karachi 1998 SCMR 2268; Huffaz Seamless Pipe Industries Ltd. v. Sui Northern Gas Pipelines Ltd. 1998 CLC 1890 and Pacific Multinational (Pvt.) Ltd. v. Inspector-General of Police, Sindh Police Headquarters PLD 1992 Kar. 283 ref.

(i) Administration of justice---

----Principle of natural justice---Scope---In all proceedings by whomsoever held, whether judicial or administrative, principles of natural justice have to be observed if proceedings result in consequences affecting person or property or other rights of parties concerned---Without participation of party effected by an order or a decision amounts to an action without lawful authority---Requirement of Audi Alteram Partem is not confined to proceedings before courts but extends to all proceedings by whomsoever held which may affect a person or property or other rights of parties concerned in dispute---Principles of natural justice must be read into each and every statute unless and until it is prohibited by statute itself.

Commissioner of Income Tax East Pakistan v. Fazal ur Rehman PLD 1964 SC 410; University of Dacca and another v. Zain Ahmed PLD 1965 SC 90; Abdul Wadood Khan v. Chief Land Commissioner PLD 1983 SC 183; Pakistan Chrom Mines Limited v. War Risk Insurance 1983 SCMR 1208; Pakistan v. Public at Large PLD 1987 SC 304; Abdul Majeed Zafar v. Governor of Punjab 2007 SCMR 330; Ali Muhammad v. The State PLD 2010 SC 623 rel.

Mansoor Hassan and Saqib Majeed for Petitioner.

Muhammad Nadeem Khan Khakwani, Assistant Attorney-General for Respondents.

Asim Shafi for Respondents Nos. 3 and 4.

Babar Sattar and Zainab Janjua for Respondent No. 6.

Muhammad Khursheed, Deputy Director, P.P.R.A.

2020 M L D 522

[Islamabad]

Before Miangul Hassan Aurangzeb, J

MUHAMMAD IQBAL---Petitioner

Versus

Syed MUHAMMAD TAHIR ZAHOOR and others---Respondents

Civil Revision Nos. 419 and 420 of 2016, decided on 31st October, 2019.

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

----O. VII, R. 2---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Suit for recovery of money (rent of rented premises by landlord)---Onus of proof---Plaintiff filed suit for recovery of amount of utility bill and arrears of rent which was decreed---Validity---When landlord had deposed that tenant had not paid rent then onus to prove that rent was paid would shift upon the tenant---Tenant should prove that he had paid the rent through reliable evidence---Where a party had withheld the best evidence, it would be presumed that said party had some sinister motive behind it---Tenant-defendant had failed to prove that he had paid rent of demised premise---Defendant could not escape the liability to pay rent up to the period when possession of suit house was handed over to the plaintiffs---Revision was dismissed, in circumstances.

Allah Din v. Habib PLD 1982 SC 465; Muhammad Riaz Shaikh v. Iftikharuddin 2014 CLC 1695 and Aulad Hussain v. Khair un Nisa 1996 MLD 1669 rel.

(b) Limitation Act (IX of 1908)---

----Art.110---Suit for recovery of rent of rented premises---Limitation---Limitation for filing a suit for recovery of rent was three years from the date when the arrears became due.

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

----O. VI, R. 14---Pleadings having not been signed---Effect---Irregularity or omission in the signatures of the pleadings or signatures by a person not authorized was merely a defect of procedure not affecting the jurisdiction of the Court and could be allowed to be corrected at any stage.

Muhammad Sham Shaikh v. Ghulam Muhammad 1980 CLC 1150 and Wali Muhammad Khan v. Ishak Ali Khan AIR 1931 All. 501 rel.

Sajjad Haider Malik and Naheed Iqbal for Petitioner.

Munir Bashir Ansari for Respondents Nos.1 to 4.

2020 M L D 638

[Islamabad]

Before Athar Minallah, C.J. and Miangul Hassan Aurangzeb, JJ

SHAHNAZ PARVEEN and another---Appellants

Versus

JAVED YAQOOB and others---Respondents

R.F.A. No. 154 of 2017, decided on 7th October, 2019.

(a) Islamic Law---

----Inheritance---Nominee of allotment of plot---Scope---Defendant's husband was member of Housing Society but he died before allotment of plot---Defendant being nominee of deceased civil servant applied for allotment of plot, which was allotted in her favour---Plaintiff filed suit for declaration to the effect that he was entitled to his share in the plot in question as inheritance which was decreed---Validity---Nomination of any person by an allottee of an estate or account holder by itself did not make the nominee the sole beneficiary or the owner of such land or account after the demise of original allottee or account holder---Estate of original allottee or the account holder would devolve on all his legal heirs in accordance with injunctions of Islam regardless of any particular person nominated by him---Such a nominee would remain accountable to all the legal heirs of the deceased for devolution of deceased's estate in accordance with the Injunctions of Islam---Suit land had not been allotted to the deceased during his lifetime and he was only member of Housing Society at the time of his death---Nominee after the death of her husband applied for allotment of plot in question and she had paid for the same---Suit land had not been allotted in favour of deceased to be inherited by the plaintiff---Impugned judgment and decree passed by the Trial Court were set aside---Appeal was allowed, in circumstances.

Muhammad Bakhsh v. Mst. Ghulam Fatima 2007 SCMR 1227; Mst. Ameeran Khatoon v. Mst. Shamim Akhtar 2005 SCMR 512; Amtul Habib v. Musarrat Parveen PLD 1974 SC 185; Kamal Afzal Farooqui v. Begum Shahzada Farooqui 1989 CLC 110; Muhammad Sohail Anjum Khan v. Abdul Rasheed Khan 2003 MLD 1095; Malik Safdar Ali Khan v. Public at Large 2004 SCMR 1219; Mst. Manzoor Ahmed v. Salaman Bibi 1998 SCMR 388; Fazal Shah v. Muhammad Din 1990 SCMR 868; Dr. Safdar Hussain v. Flt. Lt. Nadia Latif 2014 YLR 1553 and Muhammad Aslam Shah v. Province of the Punjab 2012 MLD 1768 rel.

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

----S. 42---Declaration under S.42 of Specific Relief Act, 1877 was discretion of the Court and same was to be exercised according to the exigencies of a particular case---Party could not claim declaration as a right as same was an equitable relief rather than a legal remedy---Litigants with inequitable conduct could not be granted equitable relief.

Muhammad Rafique v. Liaqat Ali 2006 YLR 2689 rel.

Malik Babar Hameed for Appellants.

Ms. Shahina Shahad ud Din for Respondent No.1.

Raja Shujahat Ali for Respondent No.2.

2020 M L D 1109

[Islamabad]

Before Aamer Farooq, J

MUSHTAQ AHMED ABBASI---Petitioner

Versus

CHAIRMAN, ELECTION COMMISSION OF PAKISTAN and 7 others---Respondents

Writ Petitions Nos. 318 and 405 of 2020, decided on 10th February, 2020.

Elections Act (XXXIII of 2017)---

----Ss. 8(c), 58 & 228---Islamabad Capital Territory Local Government Act (X of 2015), S.31---Islamabad Capital Territory Local Government (Conduct of Elections) Rules, 2015, R.11(2)---Bye elections---Deferring election schedule---Petitioners were aggrieved of the notification issued by Election Commission for deferring bye elections on different seats vacant in different Union Councils---Validity---No written explanation or reason was offered by Election Commission in the notification in question deferring election schedule---Only in an earlier notification it was provided that due to law and order situation in Islamabad Capital Territory the poll date was deferred---Such deferment was for an indefinite period and the same was the situation in another subsequent notification---Notification in question was not tenable as Election Commission, under R.11(2) of Islamabad Capital Territory Local Government (Conduct of Elections) Rules, 2015, was required to revise entire election schedule with respect to bye-elections in Union Council concerned---Under the provisions of S.31 of Islamabad Capital Territory Local Government Act, 2015, where a vacancy was created of a Mayor, Deputy Mayor, Chairman or Vice Chairman etc. elections were to be conducted within 30 days from the date, when such vacancy was notified---High Court directed Election Commission to announce election schedule with respect to bye-election and set aside the notification in question---Constitutional petition was allowed, in circumstances.

Akhtar Mahmood and Qasim Iqbal for Petitioner.

2020 M L D 1147

[Islamabad]

Before Mohsin Akhtar Kayani, J

ADNAN ZAR---Petitioner

Versus

Mst. KHADEEJA KHANUM and 2 others---Respondents

Writ Petition No. 2885 of 2019, decided on 17th January, 2020.

(a) Family Courts Act (XXXV of 1964)---

----S. 5, Sched---Dissolution of Muslim Marriages Act (VIII of 1939), S. 2(viii)(a)---Suit for dissolution of marriage---Aversion and hatred---Cruelty---Proof of---Requirements---Family Court dissolved marriage on the basis of cruelty which was maintained by the Appellate Court---Contention of defendant-husband was that marriage be dissolved on the basis of Khula---Validity---Wife, in case of Khula was required to prove aversion and hatred on the part of husband---Plaintiff and her witnesses had not been cross-examined on the issue of cruelty and said fact had been admitted on behalf of defendant-husband---No possibility of reunion between the husband and wife existed within the limits prescribed by Allah---Evidence produced on oath was sufficient to display aversion of hate against husband which was primary consideration for dissolution of marriage on the basis of cruelty---Husband had made the life of wife miserable by giving her emotional and psychological trauma by way of verbal and physical abuse which were key factors and covered under S.2(iii)(a) of Dissolution of Muslim Marriages Act, 1939---Minimum threshold of evidence with regard to cruelty had been brought on record by the plaintiff---Plaintiff-wife had corroborated physical abuse through documentary evidence---Section 5(2) of Family Courts Act, 1964 provided prosecution for both husband and wife if either of the party was abusing the other spouse and committed the offences---Family Court despite availability of evidence on record did not attend the offences mentioned in S.5(2) read with Part-II of the Sched. of Family Courts Act, 1964---Family Court having exclusive jurisdiction in the matter was to prosecute those spouses who had inflicted injuries on other spouse by way of emotional, psychological as well as physical harm---Family Court had rightly dissolved the marriage of the parties on the basis of cruelty---Constitutional petition was dismissed in circumstances.

Surah Al-Baqarah; Verse No.231; Holy Quran and Mst. Khurshid Bibi v. Baboo Muhammad Amin PLD 1967 SC 97 rel.

(b) Words and Phrases---

---'Cruelty'---Meaning.

Oxford Thesaurus of English rel.

Raja Waqar Ahmad for Petitioner.

Barrister Faisal Khan for Respondent No.1.

2020 M L D 1549

[Islamabad]

Before Athar Minallah, C.J., and Miangul Hassan Aurangzeb, J

MUHAMMAD RASHID---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.9 of 2016, decided on 4th May, 2020.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Site plan---Blackening of wound---Proof---Contradiction existed between events narrated in complaint, testimonies of witnesses and medical evidence--- Ocular account was not supported by rough site plan prepared by investigating officer---No reason was on record for giving up the draftsman as a witness who had prepared a scaled site plan--- Scaled site plan was available on record and was a more detailed version of rough site plan prepared by investigating officer---Rough site plan contradicted the facts narrated in complaint as well as the ocular account described by prosecution witnesses---No objection was raised from the side of accused in the context of rough site plan---Un-scaled plan showed place of receiving injuries by deceased and where scuffle took place as distinct,and thus contradicted testimonies of prosecution witnesses where scuffle was shown to have taken place was at a considerable distance the nature of injuries i.e. blackening was also not satisfactorily corroborated---Proof beyond reasonable doubt was to be based on reasons and common sense, which had to be logically based on evidence or lack of evidence---High Court set aside conviction and sentence awarded to accused by extending him benefit of doubt and acquitted him of the charge---Appeal was allowed, in circumstances.

Muhammad Asghar alias Nannah and another v. The State 2010 SCMR 1706 rel.

Basharat Ullah Khan for Appellant.

Noroz Khan and Muhammad Zahid Khan Hoti for the Complainant.

Hafiz Muhammad Atif Khokhar, State Counsel.

2020 M L D 1564

[Islamabad]

Before Athar Minallah, C.J.

and Miangul Hassan Aurangzeb, J

WASIQ NAZIR SATTI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.77 of 2015, decided on 4th May, 2020.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Nature of injuries---Proof---Prosecution through cogent and unimpeachable evidence could not explain beyond a reasonable doubt the existence of tattooing marks---Ocular account deposed by two witnesses was not corroborated by independent evidence rather it contradicted the material particulars---According to one prosecution witness deceased was fired at from a distance of one foot but the rest of evidence contradicted that stance---Presence of three sheep was also shrouded in mystery because their existence had not been established through reliable evidence---High Court set aside conviction and sentence awarded to accused by extending him benefit of doubt and acquitted him of the charge---Appeal was allowed in circumstances.

Muhammad Ismail v. State 2017 SCMR 713; Mst. Rukhsana Begum v. Sajjad 2017 SCMR 596; Haleem v. State 2017 SCMR 709; Abdul Jabbar alias Jabbari v. State 2017 SCMR 1155 and Shahbaz v. The State 2016 SCMR 1763 ref.

Muhammad Asghar alias Nannah and another v. The State 2010 SCMR 1706 rel.

Ghulam Farooq Awan for Appellant.

Basharat Ullah Khan for the Complainant.

Muhammad Atif Khokhar, State Counsel.

2020 M L D 1669

[Islamabad]

Before Miangul Hassan Aurangzeb

and Fiaz Ahmad Anjum Jandran, JJ

AQEEL FEROZ---Appellant

Versus

SHAHID JAMIL SETHI

and another---Respondents

R.F.A. No.168 of 2019, decided on 8th June, 2020.

Specific Relief Act (I of 1877)---

----Ss.12 & 22---Specific performance of agreement to sell---Discretionary relief--- Consideration amount, non-deposit of---Effect---Plaintiff sought specific performance of agreement to sell executed by defendant who had received earnest money---Trial Court dismissed the suit on the ground that plaintiff failed to deposit balance consideration amount during the time fixed by Court---Validity---When the time fixed in sale agreement had approached, plaintiff should have been ready and had shown his bona fide by depositing total sale consideration in Court to demonstrate his readiness for performance of sale agreement---Plaintiff issued legal notice at his own on 24-4-2007 for performance of sale agreement that too with certain conditions in respect of which he was required to issue that notice in August, 2005--- Plaintiff first time intimated his intention with some excuses in April, 2007 after about two years of the date of his obligation---Defendant vigilantly issued legal notice in September, 2005 i.e. the same year in which sale agreement was executed---Defendant demanded performance of agreement but it was plaintiff who put forth conditions in his belated response dated 18-1-2006 and in further belated legal notice dated 24-4-2007---Inference against plaintiff was that he was not willing all along to deposit sale consideration---Ample discretion lay with Court to deny relief to a purchaser of an immovable property keeping in view circumstances of each case as he could not claim specific performance of a contract as a matter of right even where it was lawful to do so---High Court directed defendant to return earnest money along with interest / markup at Bank rate calculated from February, 2005 till the date of payment in two equal installments within a period of six months--- High Court modified judgment and decree passed by Trial Court--- Appeal was dismissed accordingly.

Hamood Mehmood v. Mst.Shabana Ishaque 2017 SCMR 2022; Sheikh Akhtar Aziz v. Mst. Shabnum Begum 2019 SCMR 524; Kuwait National Real Estate Company Pvt. Ltd. v. Educational Excellence Ltd. 2020 SCMR 171; Muhammad Wahid v. Nasrullah 2016 SCMR 179; Adil Tiwana v. Shoukat Ullah Khan Bangash 2015 SCMR 828; Hafiz Muhammad Iqbal v. Gul-e-Nasreen 2019 SCMR 1880; Muhammad Abdul Rehman Qureshi v. Sagheer Ahmad 2017 SCMR 1669; Farzend Ali v. Khuda Bakhsh PLD 2015 SC 187; Adil Tiwana v. Shaukat Ullah Khan Bangash 2015 SCMR 728; Ghulam Nabi v. Muhammad Yaqoob PLD 1983 SC 344; Sirbuland v. Allah Lok 1996 SCMR 575 and Shaukat Ullah Khan Bangash v. Adil Tiwana and others 2018 SCMR 769 ref.

Ch. Ejaz Hussain Warriach and Shahzad Siddique Alvi for Appellants.

Muzammal Din Ch. for Respondent.

2020 M L D 1785

[Islamabad]

Before Athar Minallah, CJ

and Aamer Farooq, J

ABID HUSSAIN

and others---Appellants

Versus

The STATE and others---Respondents

Jail Appeal No.56, Criminal Revision No.27 and Criminal Appeal No.63 of 2016, decided on 10th June, 2020.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of the deceased by inflicting churri/axe blows---Motive for murder was a family feud due to acrimonious relations between the daughter of the complainant and her mother-in-law, who is sister of accused persons---Ocular account of the incident had been furnished by two eye witnesses---Both the eye witnesses had stated that accused struck a blow with the axe/Kulhari, which hit the deceased on the front left side of the scalp and exposed the brain injury---Medical Officer in his cross-examination had opined that the cause of death was injury which most probably had been caused by a blunt object---Similar statement was made by the Investigating Officer and stated that he had mentioned in column No. 12 of the inquest report that the injury caused to the deceased was one of blunt object---Despite the post-mortem report and the inquest report indicating that the fatal injury was caused by a blunt object, the prosecution made no attempt to clarify the matter that the injury was inflicted through a blunt object---Prosecution made no effort to clarify the contradiction or specify that back end/blunt side of the axe/hatchet had been used---Said anamoly about the use of the axe/hatchet and the fatal injury being caused by a blunt object created contradiction between the ocular account and the medical evidence---Record showed that the co-accused, who was injured, was taken to hospital on the same date and he stated categorically that wife of the complainant and his nephew upon hearing the scuffle and exchange of verbal abuse came to the rooftops of the shop of the complainant and threw stones and bricks one of which hit the deceased---Said first version of the co-accused was not investigated at all by the Investigating Officer---Trial Court had concluded that case against the co-accused was not made out, hence he was to be acquitted; due to said reasons, even case against accused was also not made out---If testimony of one witness was disbelieved, it was to be disbelieved in totality, hence when the version of the eye witnesses was disbelieved to the extent of co-accused, it was also disbelieved to the extent of accused---Appeal against conviction was allowed, in circumstances.

Amir Zaman v. Mehboob and others 1985 SCMR 685; Hallu and others v. State of Madhya Pradesh AIR 1974 SC 1936; M. Hassan v. Ghulam Rasool 2009 PCr.LJ 940; Khaki Javed and another v. The State 2003 SCMR 1419; Abdul Khaliq v. The State 1996 SCMR 1553; Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344; Mst. Shazia Parveen v. The State 2014 SCMR 1197; Liaqat Ali and another v. The State 1998 PCr.LJ 216 and Mst. Mumtaz Begum v. Ghulam Farid and another 2003 SCMR 647 ref.

M. Hassan v. Ghulam Rasool 2009 PCr.LJ 940; Hallu and others v. State AIR 1974 SC 1938; Notice to Police Constable Khizar Hayat Son of Hadait Ullah on account of his false statement PLD 2019 SC 527 and Sardar Bibi v. Munir Ahmed 2017 SCMR 344 rel.

(b) Police Rules, 1934---

----Vol. III, Ch. XXV, R.25.2(3)---Constitution of Pakistan, Art.10-A---Duty of Investigating officer---Right of fair trial---Investigating Officer is bound to investigate the matter in totality---Investigating Officer is under legal obligation not only to take into account inculpatory evidence but also exculpatory evidence---Any piece of evidence which benefited the accused, if not probed or withheld, violated his fundamental right of fair trial as enshrined in Art.10-A of the Constitution.

Liaqat Ali and another v. The State 1998 PCr.LJ 216 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence---Reliance---Scope---Accused were charged for committing murder of the deceased by inflicting churri/axe blows---Record showed that the alleged weapons of offence i.e. axe and churri were recovered by the police---No blood stain was found on churri as per Forensic Report---Axe was got recovered by co-accused from his house---Investigating Officer in cross-examination admitted that in the house of co-accused, his family was also residing and when he entered the house for recovery, it was opened and the axe was lying in corner of one room---Said referred fact made the recovery doubtful and ineffective---Arrest of accused was made after three days of the incident---Accused had ample time to dispose of the weapon of offence or wash the blood---Recovery of weapon from an open place was regarded as ineffective---Report of Forensic Science Agency stated that though axe was blood-stained but it could not be confirmed that the same was that of human, whereas churri did not have any blood stain---Recovery of weapon of offence, in circumstances, was of no avail to support the case of the prosecution---Appeal against conviction was allowed in circumstances.

Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344 and Noor Shah Gul v. Asim Ullah and another PLD 2015 Pesh. 01 rel.

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

----Ss.302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular and medical evidence---Contradictions---Scope---Accused were charged for committing murder of the deceased by inflicting churri/axe blows---Record transpired that the ocular and medical account evidence contradicted each other inasmuch as both the eye witnesses had stated that one blow with the churi was made, whereas in the post-mortem report revealed that there were two incised wounds---Accused had been attributed a blow with axe on the victim, whereas the inquest report as well as the post-mortem report and the opinion of Medical Officer indicated that the fatal injury was caused by a blunt object---Prosecution failed to establish that the injury was inflicted with a blunt side of the axe as none of the eye witness clarified the position despite the inquest report as well as the post-mortem report, which they were required to do so---Forensic Report was negative inasmuch as it stated that the origin of blood on the axe could not be confirmed---Appeal against conviction was allowed, in circumstances.

Naseer Anjum Awan (in Jail Appeal No.56 of 2016).

Mian Asad Hayat Awan Appellant/Petitioner (in Criminal Appeal No.63 of 2016 and Criminal Revision No.27 of 2016).

Mian Asad Hayat Awan for Respondents (in Jail Appeal No.56 of 2016).

Naseer Anjum Awan (in Criminal Revision No.27 of 2016 and Criminal Appeal No.63 of 2016).

Muhammad Atif Khokhar State Counsel.

2020 M L D 1834

[Islamabad]

Before Ghulam Azam Qambrani, J

The STATE---Appellant

versus

ZAFRAN MEHMOOD SATTI---Respondent

Criminal Appeal No.99 of 2020, decided on 19th May, 2020.

(a) Pakistan Arms Ordinance (XX of 1965)---

----S.13---Criminal Procedure Code (V of 1898), Ss.417 & 103---Recovery of illegal arms---Appreciation of evidence---Appeal against acquittal---Recovery proceedings---Failure to associate private witnesses---Pistol and six live bullets were allegedly recovered from accused---Trial Court acquitted the accused of the charge---Validity---On spy information police allegedly recovered an unlicensed pistol from the possession of accused at a thickly populated area---No plausible explanation was given by prosecution for not associating any witness from public though easily available---No proof was available to the effect that any efforts were made to persuade anybody from locality to act as witness of recovery---Such was a flagrant violation of S.103 Cr.P.C.---Order of acquittal could only be interfered with if the same was found on face to be capricious, perverse, arbitrary in nature or based on misreading, non-appraisal of evidence or was artificial, arbitrary and led to gross miscarriage of justice---Mere disregard of technicalities in a criminal trial without resulting injustice was not enough for interference---Order/judgment of acquittal had given rise to strong presumption of innocence rather double presumption of innocence was attached to such an order---High Court declined to interfere in the order of acquittal passed by Trial Court as the same was based on sound reasons---Appeal was dismissed in circumstances.

Qalandro alias Nazro v. The State 1997 MLD 1632; Sajjan v. The State 1998 PCr.LJ 1399;Nazar Muhammad v. The State 1996 PCr.LJ 1410 and Fareed Ahmed Langra v. The State 1998 PCr.LJ 1368 ref.

Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928; Muhammad Ijaz v. Fahim Afzal 1998 SCMR 1281 and Jahangir v. Aminullah and others 2010 SCMR 491 rel.

(b) Criminal trial---

----Benefit of doubt---Scope---Prosecution is duty bound to prove its case against accused beyond reasonable shadow of doubt---If some doubt is created in prosecution case, then accused is to be acquitted not as a matter of grace but as a matter of right. [p. 1839] B

Muhammd Karim v. The State 2009 SCMR 230 rel.

(c) Criminal trial---

----Onus to prove---Principle---Burden of proving case beyond doubt against accused sequrely lies upon prosecution---Presumption and probabilities, however strong may be, cannot take the shape of proof.

Loung through Superintendent Central Prison, Hyderabad v. The State 1999 PCr.LJ 595; Mehar v. The State 2006 YLR 661; Sajjad v.The State 1998 PCr.LJ 1299; Tariq Parvez v. The State 1995 SCMR 1345; Ghulam Akbar and another v. The State 2008 SCMR 1064; Sanaullah v. The State through Prosecutor General 2015 PCr.LJ 382; Raheel and others v. The State and others 2015 PCr.LJ 470 rel.

Zohaib Hassan Gondal, State Counsel with Iqbal SI for Appellant.

2020 M L D 1849

[Islamabad]

Before Lubna Saleem Pervez, J

AHMAR IQBAL---Petitioner

versus

MINISTRY OF ENERGY (PETROLEUM DIVISION) ISLAMABAD and others---Respondents

Writ Petition No.1152 of 2020, decided on 14th May, 2020.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Contract---Tender---Scope---Any violation of law, unjust and partial practice, which adversely affects rights of citizens for lawful participation of obtaining contracts through general tender, is unconstitutional--- Jurisdiction under Art.199 of the Constitution can be invoked in such circumstances.

Sargodha Textile Mills Limited v. Habib Bank Ltd. 2007 SCMR 1240 rel.

(b) Public Procurement Regulatory Authority Rules, 2004---

----Rr. 19 & 33---Constitution of Pakistan, Art. 199---Constitutional petition---Conract---Tender---Rejection of bid---Reasons, non-assigning of---Dishonesty and misconduct---Proof---Petitioner participated in tender proceedings and was the lowest bidder---Authorities refused to award contract to petitioner on the allegation of dishonesty and misconduct--- Validity--- If authorities rejected bid under the provision of Public Procurement Regulatory Authority Rules, 2004, then such decision was in violation of the Rules as according to R.33 of Public Procurement Regulatory Authority Rules, 2004, procuring agency was not required to justify grounds of rejection of bid or proposal but it was mandatory on the agency to communicate reasons of rejection that too prior to acceptance of the bid or proposal---After the petitioner was declared successful as he was the lowest rate bidder and after securing earnest money from him, rejecting of his bid was unlawful and illegal---Law provided proceedings under S. 19 of Public Procurement Regulatory Authority Rules, 2004, for blacklisting of petitioner but authorities were unable to show any such proceedings against petitioner---High Court directed the authorities to issue work order to petitioner in accordance with terms and conditions of tender document---Constitutional petition was allowed, in circumstances.

Junaid Iftikhar Mirza and M. Iqbal Rehan for Petitioner.

Ghulam Mustafa Qureshi for Respondents.

Farrukh Shahzad Dall, Assistant Attorney General.

2020 M L D 1985

[Islamabad]

Before Fiaz Ahmad Anjum Jandran, J

PAKISTAN TELEVISION FOUNDATION LTD. through Managing Director and another---Petitioners

Versus

ABDUL SATTAR---Respondent

Civil Revision No.503 of 2019, decided on 23rd June, 2020.

Civil Procedure Code (V of 1908)

----S. 12(2)---Provision of S.12(2) C.P.C.---Nature---Adjudication of application under S.12(2) C.P.C.---Principles---Section 12(2) C.P.C. was a substitution of suit, if material alleged and produced by the applicant in support of allegations of fraud or misrepresentation was serious and specific then evidence ought to be recorded for just adjudication of the application under S.12(2) C.P.C.---Application under S.12(2), C.P.C.. was required to be decided after framing of issues and after providing a chance to respective parties to lead evidence---Such principle, however, was not to be followed in each and every case and was dependent on nature of assertions made in an application under S.12(2) C.P.C. along with material annexed thereto---Where allegation of fraud and misrepresentation was alleged and duly supported by evidence, in such eventuality, it was incumbent upon court to record evidence for disposal of such application under S.12(2), C.P.C.

Muhammad Nawaz Khan v. Muhammad Khan and 2 others 2002 SCMR 2003; Waik Orient Power and Light Limited v. Westinghouse Electric Corporation and others 2002 SCMR 1954; Lahore Development Authority v. Arif Manzoor Qureshi and others 2006 SCMR 1530; Ms.Anees Haider and others v. S. Amir Haider and others 2008 SCMR 236; K. Electric Limited v. Federation of Pakistan PLD 2014 Sindh 504; 2012 SCMR 540, 2000 SCMR 296, 1995 CLC 946, 2008 YLR 119, 2019 YLR 427, 2015 YLR 1051, 1999 SCMR 1696 and 2000 SCMR 667 ref.

Mrs. Anis Haider and others v. S. Amir Haider and others 2008 SCMR 236 rel.

Muhammad Nazir Jawad for Petitioners.

Babar Saeed Butt for Respondent.

2020 M L D 2025

[Islamabad]

Before Mohsin Akhtar Kayani and Fiaz Ahmad Anjum Jandran, JJ

Messrs TAMEER-E-MASHRIQUE (PRIVATE) LTD.---Appellant

Versus

GOVERNMENT OF PAKISTAN through Secretary Cabinet Division and 2 others---Respondents

Regular First Appeal No.43 of 2012, decided on 13th August, 2020.

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

----S.42---Declaration---Object, purpose and scope---Even if a right is complete in all respects, even then requirement which forces a plaintiff to move Court is denial of that right by defendant---Civil Court is Court of plenary jurisdiction to grant decree upon existing right---When a decree is passed in favour of plaintiff, defendant is bound to acknowledge such status/right in respect of that property duly affirmed by Court of competent jurisdiction.

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

----Ss. 42 & 54---Suit for declaration and injunction---Vested right---Withdrawal of allotment, non-assailing of---Capital Development Authority issued Provisional Offer of Allotment of Land in favour of plaintiff company for 33 years lease to construct shopping mall, which offer was withdrawn---Trial Court dismissed the suit filed by plaintiff---Validity---No declaratory decree could be passed in favour of plaintiff as no right was in existence in face of denial on the part of Authority---Just a Provisional Offer of Allotment of Land which had been withdrawn by the Authority and plaintiff had not assailed the withdrawal---High Court declined to interfere in judgment and decree passed by Trial Court---Appeal was dismissed in circumstances.

Manoj Rao v. T. Krishna AIR 2001 SC 623 ref.

Iqbal Ahmad v. Managing Director, Provincial Urban Development Board N.-W.F.P., Peshawar and others 2015 SCMR 799 and Abdul Razaq v. Abdul Ghaffar and others 2020 SCMR 202 rel.

Agha Tariq Mehmood Khan, Advocate Supreme Court for Appellant.

Amir Latif Gill for Respondents.

2020 M L D 7

[Sindh]

Before Salahuddin Panhwar, J

ABDUL HAFEEZ---Petitioner

Versus

MOHAMMAD YOUSUF and others---Respondents

Constitution Petition No. S-434 of 2018, decided on 20th April, 2018.

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

----S. 15---Constitution of Pakistan, Art. 23---Constitutional petition---Ejectment of tenant---Bona fide personal need of landlord---Proof---Rent Controller passed order for eviction of tenant on the ground of bona fide personal need of landlord but Appellate Court set aside the said order---Validity---Landlord had right to acquire and deal with the property in the manner best suited to him---Tenant had no right to disentitle the landlord of his right to acquire, deal and possess his property which right was otherwise guaranteed by Art. 23 of the Constitution---Landlord in eviction matters was only required to establish that his requirement was reasonable and same did not appear to be mala fide one---Initial burden in such eventuality would stand discharged when landlord having stepped into witness box reiterated on oath the reasonableness for such occupation---Such deposition of landlord would carry presumption of truth and strong evidence would be required to rebut the same---Landlord was only required to establish reasonableness of his need of demised premises for his and his family occupation---Landlord had reiterated the pleaded circumstances on oath which were not rebutted by the tenant---Findings recorded by the Appellate Court were not sustainable, in circumstances---Impugned order passed by the Appellate Court was set aside and that of Rent Controller was restored---Constitutional petition was allowed, in circumstances.

1998 SCMR 2119; 2001 SCMR 1197; 1986 SCMR 946 and 1996 SCMR 1178 ref.

Mehdi Nasir Rizvi v. Muhammad Usman Siddiqui 2000 SCMR 1613; Akhtar Qureshi v. Nisar Ahmed 2000 SCMR 1292; Shakeel Ahmed and another v. Muhammad Tariq Farogh and others 2010 SCMR 1925 and Muhammad Iqbal v. Syed Sohail Wajid Gillani 2004 SCMR 1607 rel.

Samiullah Soomro for Petitioner.

Respondent No.1 in person.

2020 M L D 38

[Sindh]

Before Zafar Ahmed Rajput, J

AHSAN DILPAZIR KHAN---Plaintiff

Versus

Messrs BST SERVICES through CEO, Karachi---Defendant

Suit No. 1602 of 2018, decided on 1st February, 2019.

Civil Procedure Code (V of 1908)---

----O. XXXVIII, R. 5 & O. VII, R. 2---Money Suit---Petition for attachment of property before judgment---Requirements---Plaintiff was bound to satisfy the Court by an affidavit or otherwise that defendant with intent to obstruct or delay the execution of a decree that might be passed against him either was about to dispose of the whole property or any part of the same or was about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court---Scope of O. XXXVIII, R. 5, C.P.C. was limited---Plaintiff in hope that he might get a decree in his favour could not resort to invoke the provisions of O. XXXVIII, R. 5, C.P.C. unless he had placed on record the material for the Court's satisfaction for making such order that defendant was about to dispose of his property with a view to frustrate or delay execution of decree that might be passed against him---No detail of action, in the present case, allegedly taken by the defendant to defeat the decree if any likely to be passed in favour of plaintiff had been given in the supporting affidavit of application for attachment of property of defendant---Mere failure of the defendant to pay the claimed amount of plaintiff could not be a ground for passing an order under O. XXXVIII, R. 5, C.P.C.---Petition for attachment of property before judgment was dismissed in circumstances.

Associated Drillers Ltd., Karachi v. Messers Dirk Verstoop B. V., Karachi PLD 1979 Kar. 734 rel.

Sibtain Mahmud for Plaintiff.

Basil Nabi Malik for Defendant.

2020 M L D 46

[Sindh]

Before Fahim Ahmed Siddiqui, J

HANFIA ALAMGIR JAME MASJID TRUST through Chairman of the Trust---Applicant

Versus

Mst. NUZHAT FATIMA through Attorney---Respondent

Criminal Revision Application No. S-207 of 2017, decided on 28th September, 2018.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Prevention of illegal dispossession from property---Scope---Petitioner was aggrieved of Trial Court's order whereby his complaint for illegal dispossession was dismissed---Allegation of petitioner was that widow of his earlier tenant through her attorney broke the locks of the shop and dispossessed him---Validity---Factual position was that deceased husband of the respondent was tenant in the shop and tenancy was subsequently transferred to the son of deceased and not to the respondent---Petitioner admitted that son of respondent had physically dispossessed him but contended that he had acted on respondent's behalf---Petitioner could not point out as to how he had ascertained that the son of respondent had acted on her behalf---High Court held that petitioner by involving a household lady intended to intensify the pressure upon the respondent party---Criminal revision was dismissed.

Muhammad Saleemuddin Qureshi for Applicant.

Tariq Mehmood A. Khan for Respondent.

2020 M L D 70

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Fahim Ahmed Siddiqui, JJ

HUSSAIN ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-75 of 2018, decided on 16th November, 2018.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Non-association of natural witnesses---Delay in sending recovered narcotic---Safe custody---Non-production of diary of property room (malkhana)---Effect---Accused was allegedly found to be in the exclusive possession of narcotic, which was recovered from the boot of his car---Narcotic was recovered at police post, where at that time two policemen were posted---Said policemen were the natural witnesses of the incident as compared to patrolling police party, but they were not made witnesses of alleged arrest and recovery---Non-association of the policemen posted at police post as witnesses created doubt in the prosecution in respect of happening of the incident as claimed by the complainant and witness in their depositions---Narcotic was sent to chemical examiner with an unexplained delay of 14 days---Said exercise was required to be completed within seventy-two hours of the recovery---Safe custody of the recovered narcotic was a serious issue and the prosecution was duty bound to establish that the recovered narcotic remained in safe custody during the intervening period---Prosecution had neither produced the diary of property room (malkhana) nor in-charge of the property room was examined before the Trial Court---Prosecution had not examined the constable who had transmitted the recovered property from police station to the chemical examiner---Prosecution could not prove its case against the accused, in circumstances---Appeal was allowed.

Ghulam Abbas Jamali v. The State 2015 YLR 2085 ref.

(b) Police Rules, 1934---

----R. 25.2---Powers of investigating officers---Complainant an investigating officer---Scope---Duty of Investigating Officer is not to establish the prosecution or complainant's case but his duty is to discover the truth from the entire story of the complainant party---Critical and essential responsibility of Investigating Officer demands that he should not be affiliated to or be a member of any party of the case---Investigating Officer was not to commit himself prematurely to any view or opinion of the facts for or against any person i.e. complainant or accused.

State through Advocate General, Sindh v. Bashir and others PLD 1997 SC 408 and Ashiq alias Kaloo v. The State 1989 PCr.LJ 601 rel.

(c) Criminal trial---

----Benefit of doubt---Scope---If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right and the same is sufficient to warrant the acquittal of the accused.

Tariq Pervaiz v. The State 1995 SCMR 1345 ref.

M. Qadir Khan for Appellant.

Miss Rameshan Oad, Assistant Prosecutor General, Sindh for the State.

2020 M L D 96

[Sindh (Sukkur Bench)]

Before Muhammad Faisal Kamal Alam, J

MUHAMMAD HANIF---Petitioner

Versus

ZONAL MANAGER and 5 others---Respondents

Civil Revision Application No.S-65 of 2007, decided on 5th January, 2018.

Easements Act (V of 1882)---

----S. 60---Central Government Lands and Buildings (Recovery of Possession) Ordinance (LIV of 1965), Ss. 3 & 5---Civil Procedure Code (V of 1908), O. VII, R. 11---Licensee, right of---Declaration and permanent injunction---Rejecting of plaint---Predecessor-in-interest of plaintiff was licensee of Railways authorities to run shop/cabin who encroached upon adjacent land---Railways authorities cancelled allotment of plaintiff and got land vacated---Suit filed by plaintiff against Railways authorities was concurrently rejected by Trial Court and Lower Appellate Court---Validity---Licensee could not file proceedings of nature, seeking declaratory or injunctive relief as envisaged in Specific Relief Act, 1877 but being a licensee could only sue for damages---Both courts below applied their judicial mind while exercising their respective jurisdiction---High Court in exercise of revisional jurisdiction declined to interfere in the matter as there was no material irregularity pointed out by plaintiff in orders passed by two courts below---Revision was dismissed in circumstances.

M.A. Naser v. Chairman Pakistan Eastern Railways and others PLD 1965 SC 83; Messrs Noorani Traders v. Pakistan Civil Aviation Authority PLD 2002 Kar. 83 and S.M. Shafi Ahmed Zaidi v. Malik Hassan Ali Khan 2002 SCMR 338 rel.

Muhammad Ansar Hussain v. K.D.A. 1998 CLC 1073; Baba Handi Craft v. Civil Aviation Authority 1997 CLC 1005; Deputy Commissioner v. Abdul Salam PLD 1993 Quetta 121; Abdul Zahir v. Mir Muhammad 1999 CLC 246; Mst. Koori and another v. Allah Wasaya and others 1985 CLC 2852; Nizamuddin through Special Attorney v. Nazar Muhammad and others 2010 YLR 857; Major S.M. Hafiz v. Shafqat Ali Qureshi 2008 YLR 1287; Province of Sindh v. Public at Large PLD 1988 SC (AJ&K) 142; Qalandar Din v. Rasul Khan 1991 SCMR 525; Raja Ali Shah v. Messrs Essem Limited Hotel 2007 SCMR 741; Noor Din v. Additional District Judge 2014 SCMR Page 513(b) and Allah Warayo v. Khalifo Mohammad Ashraf PLD 2009 Kar. 373 ref.

Ghulam Shabbir Dayo for Applicant.

Muhammad Imran for Respondents.

2020 M L D 114

[Sindh]

Before Mohammad Ali Mazhar and Agha Faisal, JJ

RIAZ AHMED---Petitioner

Versus

NED UNIVERSITY OF ENGINEERING AND TECHNOLOGY, KARACHI through Vice Chancellor---Respondent

Constitutional Petition No. D-8726 of 2018, decided on 31st May, 2019.

Educational institution---

----Degree, withholding of---Mala fide proceedings---Vested right---Petitioner assailed order passed by the University withholding award of Degree to him---Plea raised by the University was that petitioner committed fraud and misrepresentation who did not avail remedy of appeal and also concealed other legal proceedings initiated by him---Validity---Held, there was no mention of proceedings challenging notice culminating in judgment of Supreme Court and petitioner made no reference to suit filed by him against the University seeking to perpetuate his tenure at the University---Petitioner did not even provide to the High Court particulars of civil suit filed by him or its fate and petitioner never filed appeal against decision of University disseminating vide notice in question---Even verification report declaring education credentials of petitioner as forged was never assailed---High Court declined to exercise Constitutional jurisdiction as petitioner failed to demonstrate any vested right for which enforcement could be sought by him---Constitutional petition was dismissed, in circumstances.

Shahenshah Husain for Petitioner

Khalid Jawed for Respondent.

2020 M L D 130

[Sindh]

Before Nadeem Akhtar, J

Syed ALI ABBAS RIZVI through Legal Representative---Petitioner

Versus

ADDITIONAL CONTROLLER OF RENTS and another---Respondents

Constitutional Petition No. S-2438 of 2017, decided on 11th July, 2019.

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

----S. 24---Eviction of tenant---Interlocutory order---Petitioner was tenant of respondent who was sent a notice to evict property on grounds of personal needs and unauthorized alterations to subject property by the tenant---Plea raised by petitioner was that he was not allowed to present additional documents before authorities despite there being an interlocutory order passed by High Court---Validity---Provisions of S. 24 of Cantonments Rent Restrictions Act, 1963 specifically barred appeals from interim orders and such restriction was imposed by lawmakers clearly with a view to avoid piecemeal decision in cases and to ensure expeditious disposal of proceedings under Cantonments Rent Restrictions Act, 1963---If parties were allowed to invoke Constitutional jurisdiction of High Court where appeal was specifically barred, such practice would negate very purpose of the Statute and render provisions thereof meaningless---Hearing and disposal of main case was being delayed as in all orders passed by Rent Controller applications repeatedly filed by petitioner for summary rejection of case were dismissed and parties were directed to produce evidence for expeditious disposal of case in compliance of orders passed by High Court---Petitioner not only made all possible attempts to delay proceedings but also abused process of Rent Controller---High Court declined to interfere in interlocutory order as it did not suffer from any jurisdictional defect or error and that Constitutional petition was misconceived and mala fide---Petition was dismissed in circumstances.

Gulistan Textile Mills Ltd and another v. Soneri Bank Ltd and another 2018 CLD 203 and Shaikh Abdul Aziz v. Mirza and 3 others, PLD 1989 SC (AJ&K) 78 ref.

Muhammad Ali Lakhani for Petitioner.

Additional Controller of Rents, Clifton Cantonment Board, Karachi for Respondent No.1.

Iftikhar Javaid Qazi for Respondent No.2.

2020 M L D 157

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

NAVEED---Petitioner

Versus

NATIONAL DATABASE AND REGISTRATION AUTHORITY through Chairman NADRA and 3 others---Respondents

IInd Appeal No.S-08 of 2016, decided on 7th January, 2019.

Specific Relief Act (I of 1877)---

---S. 42---Suit for declaration---Change in date of birth---Scope---Appellant assailed orders of two Courts below whereby his suit was dismissed---Appellant was issued CNIC wherein his date of birth was shown as 01-03-1982 but the appellant attempted to get the same changed into 22-05-1988---Validity---Appellant had firstly obtained his NIC in year 2000, wherein his date of birth was clearly shown as 01.03.1982---Again in the year 2013 appellant due to change of his marital status obtained his revised CNIC wherein his date of birth was shown as 01-03-1982---Appellant had never raised any objection to his date of birth as 01-03-1982 shown in his NIC, CNIC and revised CNIC---Appellant could not produce any evidence to establish that his date of birth was 22-05-1988---Appellant had become over-age for the government job and by filing the suit for declaration he had attempted to change his date of birth from 01-03-1982 to 22-05-1988---Concurrent findings arrived at by the courts below were based on appraisal of evidence brought on record---Impugned judgments and decrees passed by the courts below did not suffer from any illegality, misreading or non-reading of evidence---Second appeal, being devoid of merits, was dismissed.

None is present for Appellant.

Muhammad Lutufullah Arain, D.A.G. along with Abdul Basit, Senior Executive NADRA, GOR Colony Office.

2020 M L D 170

[Sindh]

Before Abdul Maalik Gaddi, J

SHAHRUKH AKBAR---Appellant

Versus

Mst. FARAH NAZ and 2 others---Respondents

Criminal Acquittal Appeal No. 190 of 2016, decided on 2nd May, 2019.

(a) Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Illegal dispossession---Appreciation of evidence---First Information Report was lodged by the Complainant/appellant after delay of about more than one month for which no satisfactory explanation had been furnished---Question of false implication of the accused with due deliberation and consultation could not be ruled out, in circumstances.

(b) Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Illegal dispossession---Withholding of material evidence---Appreciation of evidence---Appeal against acquittal---Allegation against the respondents were that they had occupied the subject property of the case by force after maltreatment to the chowkidar of appellant/complainant---Record showed that the name of the chowkidar, who was deputed by the complainant-appellant at site had not been given in the memo of petition nor he had been examined before the Trial Court---Evidence of said witness was necessary to corroborate the appellant's case, particularly, with regard to occurrence of the incident, but no such evidence was produced; no explanation in that behalf had been tendered by appellant to justify the non-examination of said witness---No reliance could be placed safely on the evidence of appellant's witnesses, in circumstances---Act of withholding of most material witness/chowkidar would create an impression that the witness if would have been brought into witness box, he might not have supported the appellant's case---Dent had been caused to the case of the complainant-appellant.

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

----S. 417---Appeal against acquittal---Double presumption of innocence---Scope---Accused had acquired double presumption of innocence after acquittal---Court would interfere in acquittal only if the judgment/order was arbitrary, capricious or against the record.

State/Government of Sindh through Advocate General Sindh, Karachi v. Sobharo 1993 SCMR 585 rel.

Muhammad Asif for Appellant.

Raja Aftab Ahmed Khan along with Ms. Naeema Siddique for Respondents Nos.1 and 2.

Abdullah Rajput, Deputy Prosecutor General Sindh for Respondents Nos.3 and 4.

2020 M L D 185

[Sindh]

Before Muhammad Ali Mazhar and Agha Faisal, JJ

OTSUKA PAKISTAN LIMITED---Petitioner

Versus

PROVINCE OF SINDH through Secretary Health and 6 others---Respondents

C.Ps. Nos. 881 and 882 of 2019, decided on 31st May, 2019.

Sindh Public Procurement Rules, 2010---

----Rr. 31 & 32---Public procurement---Transparency---Resolution of disputes---Financial soundness---Proof---Petitioner was aggrieved of award of tender to respondent by Complaint Redressal Committee for supply of medical equipment---Validity---Successful bidder did not confirm to requirement of financial soundness and Complaint Redressal Committee accepted bid of a non-compliant party, despite such non-compliance having been confirmed thereto by Central Procurement Committee upon express directions of Complaint Redressal Committee itself---Authorities failed to substantiate rationale for having accepted a bid from a party that was found to have failed upon criteria of financial soundness and was also unable to justify their abject disregard of such fact in arriving at decision in question---Acceptance of bid in manifest non-conformity with prescription of tender itself from a participant admittedly disqualified upon anvil of financial soundness criteria could not be sustained---Subsequent interpretation of tender criteria in derogation of express provisions thereof despite same respondent having found participant and its products non-responsive earlier in respect to same tender was unjustifiable---Award of tender to procure products deemed hazardous to public health by authorities and same could not be justified upon anvil of public interest---High Court set aside decision made by authorities in favour of respondent as same was neither transparent nor in public interest---High Court declared that tender process whereby bid of respondent was accepted in respect of goods in question was in violation of law and same was declared void---Constitutional petition was allowed accordingly.

Popular International (Private) Limited v. Province of Sindh PLD 2016 Sindh 19; Abu Dhabi Medical Devices Co. LLC v. Federation of Pakistan and others 2010 CLC 1253; Salahuddin Dharaj v. Province of Sindh PLD 2013 Sindh 236; Atta Ullah Khan Malik v. Federation of Government of Pakistan PLD 2010 Lah. 605; Muhammad Ayub and Brothers v. Capital Development Authority Islamabad PLD 2011 Lah. 16; Toyota Garden Motors (Private) Limited v. Government of Punjab and others PLD 2012 Lah. 503; Humera Imran v. Federation of Pakistan and others (C.P. D-20 of 2017); Assetlink Asia (Private) Limited v. Federation of Pakistan and others (C.P. D-1234 of 2017); Suo Motu case No.13 of 2009; PLD 2011 SC 619 and Asif Fasihuddin Vardag v. Government of Pakistan and others 2014 SCMR 676 ref.

Raashid K. Anwar and Mustafa Ali for Petitioner.

Jawad Dero, Additional Advocate General Sindh for Respondents.

Waheed Alam for Respondents Nos. 6 and 7.

Qamar Zaman Shah, Assistant Director (Legal) SPPRA.

Zulfiqar Ali Dars, Section Officer (PMSI), Health Department, Government of Sindh.

Irfan Ahmed Shah, Senior Pharmacist, Services Hospital Karachi.

2020 M L D 207

[Sindh]

Before Aftab Ahmed Gorar and Amjad Ali Sahito, JJ

WASEEM HYDER MEMON---Applicant

Versus

The STATE through Director General (NAB)---Respondent

Criminal Revision Application No. 77 of 2018, decided on 21st January, 2019.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 25, 15 & 32---Criminal Procedure Code (V of 1898), Ss. 265-K & 369---Power of court to acquit accused at any stage---Court not to alter judgment---Voluntary return and plea bargain---Disqualification to contest elections or to hold public office---Appeal and revision---Scope---Applicant, during his arrest, had filed a plea bargain application which was accepted by the Chairman, NAB and subsequently approved by the Accountability Court in terms of S. 25(b) of National Accountability Ordinance, 1999---Accused was convicted under Ss.15(a) & 15(b), National Accountability Ordinance, 1999---Five co-accused persons filed application under S. 265-K, Cr.P.C. which was allowed and they were acquitted of the charges---Applicant taking advantage of the said order filed application under S. 265-K, Cr.P.C. before the Accountability Court, which was dismissed---Applicant had moved application under S. 25(b) of National Accountability Ordinance, 1999 for plea bargain, the said application was duly signed by him in which he admitted that he was ready to return the liable amount which stood against him---Trial Court had accepted the offer for the payment in certain condition and after payment, the applicant was released from jail---Applicant had not filed appeal---Applicant was planning officer and the application was handwritten which was drafted and duly signed by him---No court including High Court, when it had signed its judgment/order could alter or review its own judgment/order except to correct a clerical error---Applicant was convicted on 08.02.2005 and he had filed application under S. 265-K, Cr.P.C. before the Trial Court on 09.02.2018 with a delay of 13 years---Applicant was in full knowledge about filing of the plea bargain application under S. 25 of National Accountability Ordinance, 1999 but even then he remained silent and did not challenge the said order before the Trial Court or even before High Court, though such a remedy was available to him under S. 32 of National Accountability Ordinance, 1999---Applicant had failed to explain the delay in filing the application before the Trial Court---Revision application was dismissed.

Dr. Muhammad Anwer Kurd and 2 others v. The State through Regional Accountability Bureau, Quetta 2011 SCMR 1560 rel.

Abdul Salam Memon for Applicant.

Shahbaz Sahotra, Special Prosecutor NAB for the State.

2020 M L D 213

[Sindh]

Before Muhammad Faisal Kamal Alam, J

ABDUL QADIR---Plaintiff

Versus

Mrs. AMEER ZADI and 8 others---Defendants

Suits Nos. 1472 of 1998 and 1062 of 1999, decided on 16th September, 2019.

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

----S. 55---Time as essence of contract---Effect of failure to perform at fixed time, in contract in which time was essential---Scope---Not necessary that a particular date mentioned in an agreement should be treated as being essence of the contract, but in case of ambiguity, intention of parties and other correspondence relevant to such contract should be considered---Usually in contracts involving sale of immoveable properties, time could not be considered as essence of contract unless express provisions were mentioned in contract itself.

Sandoz Limited and another v. Federation of Pakistan and others 1995 SCMR 1431 rel.

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

----Ss. 73 & 74---Breach of contract---Consequences---Compensation for loss or damage caused by breach of contract - Award of damages---Principles---In order to succeed in a claim for damages under S. 73 of the Contract Act, 1872, claimant had to prove the same through positive evidence; whereas liquidated damages could only be granted under S. 74 of the Contract Act, 1872 ,when inter alia, an aggrieved party proves default / breach of contract by the other party.

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

----Ss. 73 & 74---Specific Relief Act (I of 1877) S. 12--- Sale of immoveable property--- Suit for specific performance of contract to sell immoveable property---Earnest money / deposit---Earnest money / deposit given by vendee to vendors was part of the purchase price when the transaction went through but was forfeited when such transaction fell through by reason of fault or failure of vendee.

Messrs Ravians Paper and Board Industries Limited through Chief Executive v. Messrs Taj Company Limited through Administrator 2004 CLD 984 rel.

Bashir Ahmed v. Muhammad Luqman 1999 SCMR 378 distinguished.

Raja Aftab Ahmed Khan and Raja Sanaullah for Plaintiff (in Suit No.1472 of 1998).

Zahid F. Ebrahim for Defendants Nos.1 to 8 (in Suit No.1472 of 1998).

Nemo for Defendant No.9 (in Suit No.1472 of 1998).

Zahid F. Ebrahim for Plaintiffs (in Suit No.1062 of 1999).

Raja Aftab Ahmed Khan and Raja Sanaullah for Defendant (in Suit No.1062 of 1999).

2020 M L D 257

[Sindh]

Before Muhammad Faisal Kamal Alam, J

MAZHAR ALI through Attorney---Plaintiff

Versus

Messrs PARK AVENUE OWNERS/OCCUPANTS WELFARE ASSOCIATION through President and 3 others---Defendants

Suit No. 725 of 2015, decided on 8th October, 2019.

Fatal Accidents Act (XIII of 1855)---

----Ss. 1 & 4---Fatal accident---Suit for recovery of compensation amount---Burden of proof---Maxim "res ipsa loquitur"---Applicability---Damages, assessment of---Workplace accident---Employer's liability---Composite negligence---Scope---Per application of the maxim "res ipsa loquitur" (things speak for themselves), if an accident / incident resulting in death of a person itself was not disputed by defendant, then onus to prove that such person died not because of negligence or wrongful act of the defendant, was on defendant and not on plaintiff---Defendant, if took the plea that death of deceased was caused by his/her own negligence, then defendant had to produce evidence that the machine / equipment causing such death, was in perfect order and had no defect, but that it was negligence of deceased resulting in his/her death---To disprove the causation of death, onus was on defendant---Where injury was caused by two or more persons, then in such cases, each wrongdoer was jointly and severally liable to make good for such loss---For workplace accidents, employer was vicariously liable for tortious liability of its employees----For calculation of quantum of damages in case of fatal workplace accident, factors such as deceased being an educated person and his / her employment (and salary) were to be considered.

Punjab Board Transport Corporation v. Zahida Afzal and others 2006 SCMR 207; Islamic Republic of Pakistan through Secretary Ministry of Defence and others v. Numair Ahmed and 2 others 2015 MLD 1401; Mushtari v. Islamic Republic of Pakistan through Secretary, Ministry of Planning and Development Islamabad and 2 others 2006 MLD 19; Pakistan Steel Mills Corporation Limited and another v. Malik Abdul Habib and another 1993 SCMR 848; National Logistic Cell v. Irfan Khan and others 2015 SCMR 1406 and Premier Insurance Company of Pakistan and another v. Karachi Shipyard and Engineering Works Ltd. and another 2016 CLD 1983 rel.

Faraz Faheem for Plaintiff.

Muhammad Hanif Qureshi and Zakia Ashraf for Defendant No.2.

Nemo for Defendants Nos.1, 3 and 4.

2020 M L D 282

[Sindh (Hyderabad Bench)]

Before Fahim Ahmed Siddiqui, J

NASEER AHMED and 2 others---Applicants

Versus

The STATE---Respondent

Criminal Bail Application No.S-698 of 2018, decided on 1st January, 2019.

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

----S. 497---Police Rules 1934, Rr. 25.1 & 25.8 ---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Recovery of Charas weighing 600 grams from each of three accused---Bail, grant of---Non-association of private witness despite raiding party had beforehand information---Effect---False involvement---Scope---Assigning of investigation---Scope---Question as to whether it was proper for a raiding officer/complainant to investigate the case, who even did not belong to the concerned police station---Central Investigating Agency staff during routine patrolling, on a tip-off, arrested petitioners from abandoned houses while they were allegedly sitting holding shoppers containing narcotic substances---First Information Report, however, was lodged at Police Station of jurisdiction of place of occurrence---Petitioners contended that they were involved due to political animosity, as they belonged to rival political parties---Occurrence was mentioned in the FIR in an unbelievable style that raiding party found the petitioners sitting in the said abandoned houses and all of them were holding black shoppers wherein hashish (charas) was available---Raiding party did not try to associate at least one private witness from the locality to become marginal witness of the memo of arrest and recovery---No purchaser of the Hashish (Charas) was , admittedly, found at the place of recovery and no evidence in that respect was collected by the raiding party---High Court observed that considering the mode of arrest and recovery, false involvement, due to political animosity, could not be ruled out---Police officials were as good witnesses as private witnesses for such criminal case, but when the raid was conducted on a tip-off, non-association of private witness in the backdrop of animosity with police, created a ground for further inquiry---Complainant being not the officer in-charge of police station nor he belonged to the concerned police station where FIR was lodged; therefore, the investigation could not be assigned to him, as per R. 25.1 of Police Rules, 1934---For assigning investigation to the present investigation officer, it was necessary that the same should be done by the order of Senior Superintendent of Police, as per provision of R. 25.8 on a reference of the officer in-charge of police station---Petitioners had made out a case for grant of bail---Petitioners were admitted to bail, in circumstances.

State v. Bashir Ahmed and others PLD 1997 SC 408 ref.

(b) Police Rules, 1934---

----Rr. 25.1 & 25.8---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Question was as to whether it was proper for a raiding officer/complainant to investigate the case, who did not belong to concerned police station---Central Investigating Agency staff during routine patrolling, on a tip-off, arrested petitioners from abandoned quarters while they were allegedly sitting holding shoppers containing narcotic substances---First Information Report, however, was lodged at Police Station of jurisdiction of place of occurrence---Complainant/ Investigating Officer (head of Central Investigating Agency staff) had admitted in the Court that CIA Centre was not a police station and investigation was not assigned to him by the Senior Superintendent of Police or Deputy Inspector General---Complainant being not the officer in-charge of Police station nor belonged to the concerned police station where F.I.R was lodged; therefore, the investigation could not be assigned to him, as per R. 25.1 of Police Rules, 1934---For assigning investigation to the said investigation officer, it was necessary that the same should be done by the order of Senior Superintendent of Police, as per R. 25.8 on a reference of the officer in-charge of Police station.

State v. Bashir Ahmed and others PLD 1997 SC 408 ref.

Mumtaz Sachal Awan for Applicants.

Shawak Rathore, Deputy Prosecutor General, Sindh for the State.

2020 M L D 290

[Sindh]

Before Salahuddin Panhwar, J

RAUF and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. 153 and 159 of 2017, decided on 3rd May, 2018.

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

----Ss. 392, 397, 337-A(i) & 34---Robbery, robbery or dacoity with attempt to cause death or grievous hurt, shajjah-i-khafifah and common intention---Appreciation of evidence---Benefit of doubt---Prosecution case was that at 12:15 night, accused-appellants along with their co-accused persons, out of them two were with muffled faces while two were open faces, entered in the house of complainant by cutting lock/Kunda of main gate and by cutting grill of window---Said persons took jewelry, cash amounting Rs.20,000/- and mobiles on gun point---On resistance of the sister of complainant, they hit butt of pistol on her head and other parts of her body, which caused injuries to her---Ocular account of the occurrence had been furnished by complainant and his sister---Place of incident was residence of complainant and his sister, hence they were natural witnesses---Criterion to appreciate such evidence was to be natural and confidence inspiring---Manners in which complainant had claimed happening of incident did not appear to be logical, particularly when the complainant had claimed that out of four culprits two were muffled faces---On choosing a night time for committing an offence, the ultimate object behind that was nothing but to conceal identity therefore, claim of the complainant that two out of four were muffled faces while two were with open faces appeared to be against human behavior rather seemed to be an improvement---Record transpired that the culprits otherwise were unknown---Prosecution was supposed to have put the suspected to identification parade but in the present case, no identification parade was held---Foundation of the identity of the accused persons had two parts i.e. recovery of robbed mobile through International Mobile Equipment Identity (IMEI) number and identification by complainant---Manner of arrest through specific International Mobile Equipment Identity (IMEI) number was a material circumstance but neither said official of Citizen Police Liaison Committee (CPLC) was examined nor the record through which arrest of accused became possible was brought on record---Said facts showed that the prosecution could not prove that the mobile phone, recovered from accused, was owned; used by complainant; robbed from complainant and was found in use of the accused---Record showed that the day complainant gave SIM number of his stolen phone the following day, the accused was arrested through International Mobile Equipment Identity (IMEI) number---SIM number had nothing to do with the International Mobile Equipment Identity (IMEI) number---International Mobile Equipment Identity (IMEI) number though was mentioned in the FIR but the FIR was admittedly lodged after more than four months of the alleged incident---Mere mentioning of the International Mobile Equipment Identity (IMEI) number without proof of such mobile to be the stolen/robbed one was of no help because status thereof was never more than that of a corroborative piece---Investigating Officer to whom the mobile phone box was claimed to be handed over by complainant also did not produce the same nor had received the same under any mashirnama---Such omission would make the prosecution to suffer consequences of Art. 129(g) of Qanun-e-Shahadat, 1984---If said box had been produced, it would not have supported the claim of prosecution that it was the same robbed mobile---Prosecution, however, never attempted to produce any receipt from where mobile phone was purchased nor examined such shop-keeper which evidence was otherwise necessary for proving said fact---Model of allegedly recovered mobile phone was never claimed to be rarely available in market--In such eventuality, it was never safe to hold conviction on such foundation which was never safely proved---Circumstances suggested that the story of the prosecution was never worth believing and even the complainant never successfully established the place of incident because admittedly the alleged place of incident was a three stories building where complainant was residing at ground floor---None from two other families, residing on first and second floor of the same building where complainant party was residing at ground floor, were examined even though they were the most natural and independent persons whose attraction on calls/cries of complainant party was unavoidable---Claim of the prosecution was that the accused had taken only gold ornaments while leaving the artificial ornaments---Such piece of evidence seemed to be not in accordance with human behaviour because in such like situation, the priority would always be to escape rather than to take trouble in making difference between gold and artificial---Circumstances established that prosecution had failed to prove its case against the accused---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

Muhammad Nawaz and others v. State and others 2016 SCMR 267 rel.

(b) Criminal trial---

----Witness---Statement of---Scope---Weight would always be given to credibility of evidence and not to personality and even reputation of the witness.

Abid Ali and 2 others v. State 2011 SCMR 208 rel.

Saadat Hassan for Appellant (in Criminal Appeal No.153 of 2017).

Nemo for Appellant (in Criminal Appeal No.159 of 2017).

Ms. Seema Zaidi, D.P.G. for the State (in both Appeals).

2020 M L D 308

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Adnan-ul-Karim Memon, JJ

MUHAMMAD ASLAM---Petitioner

Versus

PROVINCE OF SINDH through Chief Secretary, Karachi and 6 others---Respondents

C. P. No .D-229 of 2011, decided on 28th February, 2019.

Contempt of Court Ordinance (V of 2003)---

----S. 3---Constitution of Pakistan, Art. 204---Contempt of court---Substantial compliance of the order---Effect---Petitioner filed application for initiation of contempt proceedings against respondent on the ground that he had failed to honour his commitment of setting up a cabin within the area from where he had been ejected---Authorities placed on record the photographs which explicitly showed that the wall had been erected before a closed gate for providing required space to the petitioner---Petitioner contended that the cabin which was originally available at the location had not been provided---Validity---For maintaining a case for contempt of court, there must be some act done or writing published calculated to bring a Court or judge of a court into contempt or to lower his authority by something calculated to obstruct or interfere with the due course of justice or lawful purpose of the court or disregard an order, direction or process of court which a person was legally bound to obey; or wilful breach of an undertaking given to a court; or any act intended to or which tend to bring the authority of court or the administration of law into disrespect or disrepute and to obstruct, interfere, or prejudice the process of law or the due course of any judicial proceedings falling within the category of contempt of court---Petitioner had failed to point out that the action of the alleged contemnor fell within the aforesaid categories---Authorities had substantially complied with the order passed by the court---No action for contempt of court was required---Application was dismissed.

Naimatullah Soomro for Petitioner.

Imran Qureshi for HMC along with Syed Afaque Ahmed Rizvi Director (Land) HMC for Respondents.

Zaheer-ud-Din Sahito, State Counsel.

2020 M L D 313

[Sindh (Sukkur Bench)]

Before Muhammad Saleem Jessar, J

Agha Syed MUHAMMAD---Applicant

Versus

MUHAMMAD ANWAR and 2 others---Respondents

R.A. No.56 of 2008, decided on 24th January, 2019.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and permanent injunction---Mis-description of property---Contradiction in pleadings and evidence---Scope---Plaintiff claimed that the suit property, on the basis of his possession, was permanently allotted to him whereas defendant claimed that the plaintiff was occupying the land of madressa and that he joined the madressa as its employee and an accomodation was provided to him, however, later on he refused to vacate the same---Validity---Plaintiff pleaded that he had taken up residence on the western side of the madressa whereas his witness stated in cross-examination that the house was built on the eastern side of the madressa---When the witness was confronted with the averments made in the plaint to the effect that the house was claimed to be on the western side of the madressa, the witness simply termed it as a typographical mistake, but when he was asked whether such typographical mistake was ever corrected, he answered in the negative---Mis-description as to the location of the suit property could not be termed as a mere typographical mistake as the dispute went to the root of the case---Dispute between the parties was not with regard to the location of the suit property---Issue was with regard to the averments made in the pleadings and the oral evidence in support thereof---Plaintiff did not produce any document to prove that he had established the madressa---Plaintiff himself had admitted in his plaint that certain piece of land was allotted to madressa, however, some of it was later on allotted to him but no description of the area was given---Piece of land allotted to the madressa could not be allotted to anyone else---High Court observed that had the claim of plaintiff, that he had established the madressa, been true then due to differences, his employees should have been shown the door rather than the other way around---Revision petition was dismissed.

2004 YLR 879 distinguished.

1992 CLC 1022; 2014 YLR 602; 1996 SCMR 669; 2010 CLC 1931; Begum Syeda Azra Masood v. Begum Noshaba Moeen 2007 SCMR 914; 1989 MLD 4107; 2005 CLC 1693; 2005 YLR 1738; 2004 YLR 879; 2000 CLC 1018; 2002 YLR 3096; PLD 1965 SC 274; 2003 SCMR 29; 2011 CLC 527; PLD 1989 SC 749; 2009 SCMR 644; 2006 SCMR 586; PLD 2004 SC 489 and 2000 SCMR 1864 ref.

Sarfraz Ahmed Akhund, A.M. Mubeen Khan and Abdul Naeem for Applicant.

Mukesh G. Karara and Sajjad Muhammad Zangejo for Respondent No.1.

Yasir Arafat Shar, State Counsel.

2020 M L D 334

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Muhammad Karim Khan Agha, JJ

ALLAH WARRAYO---Appellant

Versus

Mst. LADAN and 3 others---Respondents

Criminal Acquittal Appeal No.D-227 of 2004, decided on 13th September, 2018.

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

----Ss. 302, 201 & 34---Criminal Procedure Code (V of 1898), Ss. 417(2-A), 164 & 364---Oaths Act (X of 1873), S. 5---Qatl-i-amd, causing disappearance of evidence, common intention---Appeal against acquittal---Appreciation of evidence---Delayed FIR---Retracted confession---Examination of accused---Oath or affirmation to an accused person in criminal proceedings---Effect---Complainant had alleged that wife of deceased had developed illicit relations with co-accused; that on the night of occurrence deceased went to sleep but did not wake up and was found dead; that complainant along with witnesses found red marks of violence on both sides of neck and chest of deceased; that maternal uncle of co-accused asked the complainant party that deceased died on the dictates of Allah and they should bury him quickly; that complainant and co-villagers being innocent persons remained silent and buried the dead body and that complainant suspected his daughter-in-law, sharing common intention with her paramour, might have added sleeping pills in the night meals and catered the same to family members, who all went to sleep and thereafter they might have committed the murder of deceased by way of throttling---Crime was reported to the police after 14 days of the occurrence---Prosecution mainly relied on the confessional statement of accused (wife of deceased)---Magistrate, who recorded the confessional statement of accused admitted that accused had given her judicial confession on oath, which was violative of S. 5 of Oaths Act, 1873; that after recording confessional statement, accused was handed over to the same police who had produced her before the court for recording her confessional statement; that he had not given warning to the accused in case if she confessed or did not confess, her custody would not be handed over to the same police; that person of accused was not searched in order to determine any marks of violence; that all questions were put to accused in English although it had been brought on record that accused did not understand English and she only understood "Thari language"---Magistrate had not complied with the requirement of S. 364, Cr.P.C.---Requirement of confessional statement was that it had to be free from inducement, threat, coercion and the same had to be true and voluntary---High Court observed that confessional statement of accused was not recorded as per required procedure and the same was a retracted confession, which otherwise suffered from legal defects and could not be relied upon for conviction---Trial Court had carefully scrutinized the entire evidence and documents on record and had arrived at the correct conclusion---Appeal against acquittal was dismissed.

Gulab Khan and another v. The State PLD 1971 Kar. 299 rel.

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

----S. 164---Power to record statement and confession---Procedure---After recording confessional statement, custody of an accused cannot be handed over to the same police.

Gangoo Ram v. The State 2003 PCr.LJ 1608 ref.

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

----Art. 37---Confession by inducement, threat or promise, when irrelevant in criminal proceedings---Scope---Requirement of confessional statement is that it shall be free from inducement, threat, coercion and the same shall be true and voluntary.

(d) Appeal against acquittal---

----Where Trial Court's view is possible and plausible, the Appellate Court should not substitute the same by its own possible view---Trial Court has the advantage of watching the demeanour of the witnesses who have given evidence, therefore, the Appellate Court was to be slow to interfere with the decisions of the Trial Court---Acquittal by the Trial Court was not to be interfered with unless it is totally perverse or wholly unsustainable.

Syed Tariq Ahmed Shah and Mir Shakir Ali Talpur for Appellant.

Mumtaz Sachal Awan for Respondents Nos.1 to 3.

Shahzado Saleem Nahiyoon, D.P.G. and Mrs. Rameshan Oad, A.P.G. for Respondent No.4.

2020 M L D 357

[Sindh]

Before Mohammad Ali Mazhar and Agha Faisal, JJ

DOW UNIVERSITY OF HEALTH SCIENCES through Authorized representative and another---Petitioners

Versus

FEDERATION OF PAKISTAN through Cabinet Secretary, Islamabad and 5 others---Respondents

Constitutional Petition No. D-507 of 2019, decided on 11th March, 2019.

Pakistan Medical and Dental Council Ordinance (XXXII of 1962)---

----S. 22---Pakistan Medical and Dental Council Ordinance (II of 2019), S. 23---Medical and Dental Institutions (Recognition, Eligibility Criteria for Enhancement in Annual Admissions and Accreditation Standards) Regulations, 2018, Rgln. 12---Deregistration of institute---Eligibility criteria, change of---Petitioner was a Dental College which was served notice of inspection---Grievance of petitioner was that it was deregistered on misplaced inspection parameters which were suddenly changed without prior notice---Validity---Last minute alteration of assessment criteria was notwithstanding the fact that Regln. 12 of Medical and Dental Institutions (Recognition, Eligibility Criteria for Enhancement in Annual Admissions and Accreditation Standards) Regulations, 2018 prescribed that existing recognized institutions were given three years within which to conform to prescriptions so notified---Assessment upon Medical and Dental Institutions (Recognition, Eligibility Criteria for Enhancement in Annual Admissions and Accreditation Standards) Regulations, 2018 criteria was a marked departure from past practice and no justification of such divergence was ever advised to the petitioner or court---Reply of petitioner to inspection report was never considered by Pakistan Medical and Dental Council and at present Pakistan Medical and Dental Council remained incapacitated to revisit issue and ascertain factum for itself---High Court set aside notification deregistering the petitioner College---Constitutional petition was allowed in circumstances.

Radaka Corporation and others v. Collector of Customs and another 1989 SCMR 353 rel.

Haider Waheed, Shahzeb A Khan and Muneem Masood for Petitioners.

Ishrat Zahid Alvi, Assistant Attorney General for Respondents Nos. 1 and 2.

Sohail H.K. Rana for Respondent No. 4 and Anwaar Alam, Officer in Charge, Karachi.

2020 M L D 371

[Sindh (Sukkur Bench)]

Before Zafar Ahmed Rajput, J

MEHAR and others---Appellants

Versus

PROVINCE OF SINDH through DISTRICT GOVERNMENT PLEADER, KHAIRPUR and 4 others---Respondents

Civil Revision Application No. S-83 of 1998, decided on 5th July, 2019.

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

----S. 79 & O. VIII, R. 10---Constitution of Pakistan, Art. 174---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Suit against Government---Requirements---Defendant failed to submit written statement---Effect---Contention of plaintiffs was that they were owners of suit property---Trial Court decreed the suit but Appellate Court dismissed the same---Validity---Suit property was in the ownership of Forest Department---Claim of plaintiffs was without any substance---Where suit had been filed against Government then authority to be named as defendant should be the Province---Present suit had been instituted against Provincial Government and Province was to be sued through concerned Secretary to the Government---Where provisions of S. 79 of Civil Procedure Code, 1908 had not been complied with then suit would be incompetent---Failure of defendant to file written statement would entail striking off his defence---Defendant in absence of his written statement could cross-examine the plaintiff's witnesses and lead evidence to disprove facts stated in the plaint---Revision was dismissed, accordingly.

Haji Abdul Aziz v. Government of Balochistan through Deputy Commissioner 1999 SCMR 16; H. M. Saya & Co. v. Wazir Ali Industries Ltd. PLD 1969 SC 65 and Qazi Muneer Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others 2019 SCMR 648 rel.

(b) Appeal---

----Any aggrieved person, whether or not he was party in a lis, had right to approach appellate forum.

H. M. Saya & Co. v. Wazir Ali Industries Ltd. PLD 1969 SC 65 ref.

A.M. Mobeen Khan for Applicants.

Abdul Ghaffar Memon, State Counsel along with Ziadullah Leghari for Respondents 1 to 4 along with Divisional Forest Officer, Khairpur.

Muhammad Younus Channa for Respondent No. 5.

2020 M L D 440

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Fahim Ahmed Siddiqui, JJ

Mst. REMAT BIBI and others---Petitioners

Versus

FEDERAL SECRETARY, GOVERNMENT OF PAKISTAN, Ministry of Minorities and 3 others---Respondents

C. P. No. D-444 of 2006, decided on 29th May, 2019.

(a) Hindu law---

----Gift, types of---'Ishta' and 'Purta'---Distinction---According to Hindu text writers, gift for religious and charitable purposes fall into two divisions, 'Ishta' and 'Purta' which is a classification which has come down to our times---'Ishta' denotes sacrifices and sacrificial gifts of alms while 'Purta' refers to charitable property.

Mayne's Hindu Law and Usage, 11th Edition, at page 911 and Karmaraju Venkata Karishna Rao v. The Sub-Collector, Ongole 1969 AIR 563 rel.

(b) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----S. 10---Trusts Act (II of 1882), S. 5---Qanun-e-Shahadat (10 of 1984), Art. 114---Limitation Act (IX of 1908), Art. 181---Evacuee property---Charitable trust---Non-claimant occupier---Petitioners were owners of evacuee property and were aggrieved of cancelation of their ownership---Authorities claimed that land in question was designated as charitable property by previous Hindu owner---Validity---Trust could not be created for an immovable property without an instrument or trust deed duly registered under S. 5 of Trusts Act, 1882---Authorities only relied upon entry appearing in easement column of extract of Property Register Card but they could not produce any concrete evidence that a trust was ever in existence at subject property---Hindu owner might have allowed to take water from his bore-well as 'Ishta' or sacrificial gifts to surrounding tenements and as soon as bore-well vanished, land on which bore-well was available could be used by its owner in any manner---Such act of allowing to take water was a sacrificial gift and such offering could not create a trust unless owner had manifested creation of a charitable trust by a non-testamentary instrument in writing and signed by him and got same registered under S. 5 of Trusts Act, 1882---Property in question was a chunk comprising as many as 11 survey numbers---Amongst them, there was an entry in Property Register Card of only one survey number showing words 'well charitable'---On basis of such entry alone authorities unjustifiably declared that entire chunk, i.e., remaining survey numbers also as Evacuee Trust Property---Save to that entry, there was nothing on record to favour authorities regarding their plea that subject property belonged to a trust set up by previous Hindu owner of property---Petitioners were enjoying property for such a long time with their full rights and even their properties were mortgaged with House Building Finance Corporation---During all such activities, authorities remained in deep slumber, as such any claim on their behalf was otherwise not maintainable on grounds of laches---High Court set aside orders cancelling ownership of petitioners as they were not sustainable in law---Constitutional petition was allowed in circumstances.

Muhammad Yaqoob v. Additional Secretary 1999 MLD 2068; Evacuee Trust Property Board v. Abdul Aziz Khan 2000 SCMR 1371; Abdul Razzaq v. Chairman, Evacuee Trust Property Board 2015 CLC 276; Muneer Ahmed v. Settlement and Rehabilitation Commissioner PLD 1981 Lah. 735; Khalid Mehmood v. Ghulam Muhammad 1982 SCMR 557; Abdul Aziz Chohan v. Evacuee Trust Property Board 1984 CLC 2367; Muhammad Siddiq v. Chairman, Evacuee Trust Property Board 2001 YLR 2661; Assistant. Administrator, Evacuee Trust Property v. Muhammad Ayub 2003 SCMR 841; Mufti Iftikharuddin v. Federal Government PLD 1992 FSC 188; Muhammad Shafi v. Joint Secretary of Religious and Minority Affairs 1997 SCMR 227; District Evacuee Trust Committee v. Mashraf Khan 1989 SCMR 1636; Jahanzeb Khan v. Federation of Pakistan 1999 MLD 2505; Divisional Evacuee Trust Property Committee, Hyderabad v. Deputy Commissioner 1939 SCMR 1610; Haji Moneer Ahmad v. Islamic Republic of Pakistan 2006 CLC 1263; District Evacuee Trust Committee v. Muhammad Unar 1990 SCMR 25; Evacuee Trust Property Board v. Zakia Begum 1992 SCMR 1313; Akber Jan v. District Evacuee Trust Board 1991 SCMR 2206; Makkah Wood Based Panel v. G. M. Gas Pipeline Ltd. 2013 SCMR 478 and Sha Mulchand and Co. Ltd. v. Jawahar Mills Ltd., Salem A1R 1953 SC 98 and Federation of Pakistan v. Iftikharuddin 2000 SCMR 1 ref.

(c) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----S. 10---Bona fide transaction---Jurisdiction---Scope---Chairman Evacuee Trust Properties Board has jurisdiction in a case when transaction is not bona fide---Protection under S. 10 of Evacuee Trust Properties (Management and Disposal) Act, 1975 is available in case of any erroneous transfer in a bona fide manner---In case of deliberate and wanton transfer, cover under S. 10 of Evacuee Trust Properties (Management and Disposal) Act, 1975 is not available.

Fayyazuddin Khan v. Federal Government of Pakistan and others 2009 SCMR 362 rel.

Naimatullah Soomro for Petitioners

Muhammad Humayoon Khan, Deputy Attorney General for Pakistan.

Atta Hussain Gaddi Pathan, for Evacuee Trust Property Board (Respondents Nos. 2 and 3) along with Jameel Ahmed, Assistant Evacuee Trust Property, Hyderabad.

2020 M L D 466

[Sindh]

Before Naimatullah Phulpoto and Mohammad Karim Khan Agha, JJ

SHAH NAWAZ and another---Appellants

Versus

The STATE---Respondent

Special Criminal A. T. Appeal No. 291 and Confirmation Case No.14 of 2018, decided on 18th February, 2019.

(a) Criminal trial---

----Benefit of doubt---Principle---Prosecution was to prove its case beyond a reasonable doubt---Accused could take as many defences as he liked to the allegations against him---If there is any doubt in the prosecution's case, the benefit must go to the accused.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S.7(1)(a)---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, common intention, act of terrorism---Identification parade---Scope---In the present case, both the eye-witnesses identified each of the accused at the identification parade held by Judicial Magistrate---Eye-witness had given each of the accused a specific role with accused firing at the deceased and co-accused standing at his back whilst other eye-witness had given accused the specific role of firing on the deceased---No legal value could be given to such identification parade, in circumstances.

Muhammed Ali v. State 2017 SCMR 1468; Hakeem v. State 2017 SCMR 1546 and Javed Khan v. The State 2017 SCMR 524 rel.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S.7(1)(a)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, common intention, act of terrorism---Extra-judicial confession made to police---Scope---In the present case, extra-judicial confession was made by the accused before the police while they were in custody in other cases---Accused were not taken to have their confession recorded under S.164, Cr.P.C. before the Magistrate---Extra care and caution was to be taken before convicting the accused on the basis of such confessions without strong corroboration---Serious risk existed to the effect that such extra judicial confessions had been concocted by the police---Little weight would be given to such extra judicial confession.

Sajid Mumtaz v. Basharat 2006 SCMR 231 rel.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S.7(1)(a)---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Weapon of offence was recovered from the accused---Reliance---Scope---Record showed that pistols had been recovered from the accused in another case and not in the present case---No evidence of any safe custody of either of the pistols or of the empties was on record as such very little weight would be given to such recoveries.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S.7(1)(a)---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of the deceased by firing---Eye-witnesses did not give evidence at the trial as they could not be traced out---Said eye-witnesses, were named in the FIR and were natural witnesses but they were not even called as prosecution witnesses and did not give any description of the accused in the FIR---All the prosecution witnesses were interested policemen---No motive had even come on record as to why the accused had murdered the deceased---Seven private witnesses had not appeared as witnesses as they had been silenced---Accused came on a motorbike and then shot the deceased no motor bike was recovered from the accused---When the accused were arrested in another case the next day , they were riding in a rickshaw---Only four rounds were fired and it was night time incident---Case did not fall under the Anti-Terrorism Act, 1997, in circumstances---No intent or design to cause insecurity in the minds of the public and no such insecurity was actually caused in the present case---Accused were acquitted of the charge by setting aside conviction and sentences recorded by the Trial Court, in circumstances.

Muhammed Akram v. State 2009 SCMR 230: Muhammed Nawaz v. State PLD 2005 SC 40; Lal Pasand v. State PLD 1981 SC 142; Abdul Jabbar v. State 2019 SCMR 129 and Azhar Mehmood v. State 2017 SCMR 135 ref.

Ajab Khan Khattak for Appellants.

Farman Ali Kanasro, Additional Prosecutor General Sindh for the State.

2020 M L D 486

[Sindh (Larkana Bench)]

Before Rasheed Ahmed Soomro and Shamsuddin Abbasi, JJ

SAMANO KANRANI---Appellant

Versus

The STATE---Respondent

Criminal Appeal D-37 of 2019, decided on 30th May, 2019.

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

----S. 29---Possession of illicit articles---Obligation of prosecution----Burden of proof----Presumption----Primary obligation of the prosecution was to prove its case beyond reasonable doubt and its burden was not shifted under the presumption contained in S.29 of Control of Narcotic Substances Act, 1997---Once the prosecution established recovery beyond shadow of doubt, the burden was shifted.

Saeed Muhammad Shah v. The State 1993 SCMR 550 ref.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Charas weighing 1200 grams was recovered from accused----Sample was sent for chemical examination after delay of 05 days---Prosecution stated that the recovered charas was kept in Malkhana by a Police Official---Neither the Incharge of Malkhana was examined at trial nor the entry of keeping the property in Malkhana was placed on record---Recovery, in circumstances, was made highly doubtful----Witnesses contradicted each other on material aspects of the case---No implicit reliance could be placed on the evidence of prosecution witnesses in view of contradictions---Prosecution had failed to prove its case beyond reasonable doubt---Accused was acquitted by giving him benefit of doubt.

Abdul Ghani v. The State 2019 SCMR 608 and Saeed Muhammad Akram v. The State 2009 SCMR 230 ref.

Irfan Badar Abbasi for Appellant.

Mohammad Noonari, Deputy Prosecutor General for the State.

2020 M L D 498

[Sindh]

Before Fahim Ahmed Siddiqui, J

ASIF IQBAL---Appellant

Versus

THE STATE---Respondent

Special Customs Criminal Appeal No.10 of 2009, decided on 26th August, 2019.

Sales Tax Act (VII of 1990)---

----S. 33---Criminal Procedure Code (V of 1898), S. 382-E---Forgery, manipulation, falsification and preparation of bogus invoices---False implication---Benefit of doubt---Accused was convicted and sentenced by Trial Court for receiving illegal tax refunds through forged, manipulated, falsified and bogus invoices---Validity---Process of registration of a concern was manifold in which physical verification was required and same was to be done by some of officials of sales tax department attached to registration process---Appellant had stated that he had never worked for or remained associated with the actual culprits, he being a poor employee had been falsely implicated, he had rightly taken the plea of his being innocent---If such scam had taken place in department then responsible officers of that department should have been put to task for registration of fake concern with office of sales tax department---No effort was taken during investigation to associate those who were involved in the scam and only a dispatcher was involved as culprit---Many doubts in the case of prosecution existed and apparently a low grade employee of department were made scapegoat to save skin of influential black-sheep of department---High Court set aside conviction and sentence awarded to accused by Trial court as prosecution could not establish case against accused---Appeal was allowed accordingly.

Syed Jamil Raza Zaidi for Appellant.

Ms. Durdana Tanveer, Assistant Attorney General for the State.

2020 M L D 512

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Mahar and Irshad Ali Shah, JJ

WALI MUHAMMAD and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal Nos.D-99, D-100 and D-101 of 2018, decided on 18th April, 2019.

Explosive Substances Act (VI of 1908)---

----Ss. 4(b) & 7---Anti-Terrorism Act (XXVII of 1997), Ss. 7(1)(ff) & 6(2)(ee)---Sindh Arms Act (V of 2013), Ss. 23(1)(a) & 24---Criminal Procedure Code (V of 1898), S. 342---Attempt to cause explosion or for making or keeping explosive with intent to endanger life or property, restriction on trial of offence, usage of explosives by any device including bomb blast or having any explosive substance without any lawful justification, possession of firearm and ammunition---Examination of accused---Scope---Prosecution case was that the accused persons were found to be in possession of the explosive substances and firearms, for that they were booked and reported upon by the police---Prosecutor contended that no question with regard to the reports of ballistic/forensic expert were put to any of the accused during the course of their examination under S.342, Cr.P.C.; that such omission could not be overlooked, that record did not speak of availability of the sanction/consent of the Provincial Government which was necessary for such proceedings in terms of S.7 of Explosive Substances Act, 1908 and that case be remanded for re-writing of the judgment by the Trial Court---Validity---Impugned judgment was set aside with direction to the Trial Court to rewrite the judgment after curing the defects which were pointed out by the prosecution and by providing the chance of hearing to all the concerned---Appeals were disposed of accordingly.

Rukhsar Ahmed M. Junejo (absent) for Appellants.

Abdul Rehman Kolachi, Deputy Prosecutor General for the State.

2020 M L D 551

[Sindh (Sukkar Bench)]

Before Fahim Ahmed Siddiqui, J

AIJAZ HUSSAIN JAKHRANI---Appellant

Versus

MUHAMMAD MIAN SOOMRO and 2 others---Respondents

Election Appeal No. S-89 of 2018, decided on 26th June, 2018.

Elections Act (XXXIII of 2017)---

----S. 63---Appeal against scrutiny order---Acceptance of nomination papers---Scope---Appellant filed appeal against the order of Returning Officer whereby nomination papers of respondent were accepted---Validity---Nomination Form contained details of properties owned by respondent and if any omission was found in the nomination papers, same could not be considered as a concealment on the part of respondent, when details had been disclosed through annexures---If any omission was found, it could be corrected at the time of scrutiny or even thereafter, if required---Where Nomination Form provided insufficient space, the candidate was allowed to use separate sheets---Respondent had categorically stated that neither he had obtained nationality of any other country nor he intended to do so---Respondent was a green card holder but holding of green card being not a nationality---Impugned order being within four corners of law, appeal was dismissed.

2013 SCMR 1271, PLD 2018 SC 189 and 2013 SCMR 1238 ref.

Abid S. Zubeir for Appellant.

Khuwaja Naveed Ahmed and Mukesh G. Karara for Respondent No.1.

Muhammad Aslam Jatoi, A.A.G. for Respondents.

2020 M L D 567

[Sindh]

Before Salahuddin Panhwar, J

ABBAS ALI and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. 222 of 2016, decided on 31st August, 2018.

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

----S. 410---Appeal against conviction---Delay in filing appeal, condonation of---Right of appeal was a substantial right which normally should not be denied on technical counts/reasons particularly when it came to administration of criminal justice---Normally condonation of delay would do nothing with merits of the case but would only require the court to decide the lis on merits---Condonation of delay was normally subject to giving a 'reasonable explanation which might have prevented party in approaching the court'---While examining the question of limitation, the circumstances claimed to have prevented one in approaching the court in time, would always be a decisive factor---High Court observed that if the pleaded circumstances appeared to be justified or even likely to be believable though no proof was offered then the delay must be condoned.

Fazli Hakeem and another v. Secretary, State and Frontier Division and others 2015 SCMR 795 rel.

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

----Ss. 302(b), 394, 397 & 34---Qatl-i-amd, voluntarily causing hurt in committing robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Condonation of delay in filing appeal against conviction---Admittedly during legal period of filing of appeal, the appellants were confined in jail---Plea of appellants of being not at liberty to approach the court with their free will could not be ignored straight away---Status of the appellants to be pauper was also evident from record---Plea of accused/appellants being poor/pauper and not in a position to have access to counsel for filing appeal also appeared to be believable; in such circumstances, it would be unfair to deny a substantial right to appellants while holding that blood relation of the appellants could have arranged filing of appeal in time---Delay in filing of appeal against conviction was condoned, in circumstances.

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

----Ss. 302(b), 394, 397 & 34---Qatl-i-amd, voluntarily causing hurt in committing robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Prosecution case was that accused persons duly armed with weapons committed robbery, brother of complainant caught hold one of the accused on which absconding accused made firing upon him in order to rescue the other accused, due to said firing, brother of complainant received four bullet injuries, while accused received one injury---Injured died at the hospital---Record showed that it was hard to disbelieve the presence of the claimed eye-witnesses i.e. complainant, real brother of deceased, father of deceased as well cousin of deceased---Said witnesses had claimed to be residents of first-floor of dairy farm while one of the said witnesses was residing in neighbourhood---By no stretch of imagination, these witnesses could not be said to be 'chance witnesses'---All the witnesses of ocular account categorically supported each other with regard to manner of incident; number of accused persons as well arrest of accused/appellant in injured condition while other appellant escaped---In the present case, the appellants had pleaded no enmity or mala fide on part of the prosecution witnesses rather only had suggested that deceased died in incidents of political unrest in the city---No attempt was made to establish happening of such political unrest at the relevant time---Memo. of inspection of place of incident not only established the place of occurrence but manner of happening of incident as well arrest of appellant---Appellants also never denied or disputed arrest of accused/appellant in injured condition from place of incident---Accused/appellant even failed to submit any explanation for such injuries---Appellants were not claimed to be muffled faces nor the time of incident was claimed as dark-hours rather the witnesses during resistance period had sufficient time to properly see the accused persons---Prima facie, it was not a case of mistaken identity---Further, the name and parentage of the appellant was disclosed by apprehended accused so was detailed by Investigating Officer in his examination-in-chief---Findings of the Trial Court in finding the appellants guilty were not open to any exception, in circumstances---Appeal was dismissed accordingly.

2002 PCr.LJ 1240; 2015 YLR 2413; 1996 SCMR 308; 1990 SCMR 158; 2010 SCMR 939; PLD 2005 SC 153 and 2001 SCMR 1405 ref.

Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.

(d) Criminal trial---

----Witness---Related witness---Testimony of related witness---Reliance---Scope---Normally the evidence of blood-relation got more strength in absence of any mala fide or enmity because normally a blood-relation would not spare the real culprit by substituting him with an innocent person.

Zahoor Ahmed v. State 2007 SCMR 1519 rel.

(e) Criminal trial---

----Witness---Natural witness---Testimony of natural witness---Reliance---Scope---Testimonies of natural witnesses could not be disbelieved merely on account of their relationship---Said principle was settled for two counts i.e. it was not the quantity but quality and that mere relationship never was a proof of one telling truth or false. [p. 577] J

Niazuddin and another v. State 2011 SCMR 725 and Zulfiqar Ahmed and another v. State 2011 SCMR 492 rel.

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

----Art. 22---Identity of accused---Identification parade---Scope---Identification even during course of trial, if appeared to be confidence inspiring and there appeared no reasons for false implication, mere non-holding of identification parade was not fatal.

Ghazanfar Ali alias Pappu and another v. State 2012 SCMR 215 rel.

(g) Criminal trial---

----Recovery---Scope---Recovery or absence thereof would be immaterial if ocular account otherwise is confidence inspiring and finds support from medical evidence.

Mubashir Ahmed Mirza for Appellants.

Abrar Ali Khichi, A.P.G. for the State.

2020 M L D 614

[Sindh]

Before Mohammad Karim Khan Agha and Omar Sial, JJ

SHARJEEL INAM MEMON---Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU through Director General---Respondent

Constitution Petition No. D-1939 of 2019, decided on 25th June, 2019.

Per Mohammad Karim Khan Agha, J, Omar Sial, J agreeing, with making additional observations.

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

----Ss. 9(a)(vi) & 9(b)---Bail, grant of---Fresh ground---Second bail application---New plea---Case of further inquiry---Delay in conclusion of trial---Petitioner was ex-Provincial Minister who was arrested by National Accountability Bureau for misuse of his authority and causing loss to national exchequer---Plea raised by accused was that letter issued by Federal Government had established that payments made during regime of accused were not exorbitant---Validity---During reference period, rates which were paid by Provincial Government as authorized by petitioner to advertising agencies who then engaged concerned television channels, were much lower in each case than those which were being paid by Federal Government Ministry of Information, Broadcasting, National History and Literary Heritage---Such fact raised issue whether rates charged by Provincial Government in reference were in fact exorbitant during reference period as per market rates, especially when Federal Government was paying much more---Letter of Federal Government revealed that there was no regularization or standardization of rates to be paid to advertising agencies during time when reference was filed or thereafter---Such new ground had made case of petitioner one of further inquiry in terms of rates paid by Provincial Government to advertising agencies in terms of their exorbitancy---Conclusion of trial was delayed and its completion was not in sight in foreseeable future---Trial had not reached position where such delay or period spent in custody of petitioner could be regarded as shocking, unconsciousable or inordinate---Such delay also tilted balance in favour of petitioner---Bail was allowed in circumstances.

Tallat Ishaq v. NAB PLD 2019 SC 112 and Syed Manzoor Abbass v. NAB 2019 MLD 581 rel.

Zaigham Ashraf v. The State 2016 SCMR 18 ref.

Per Omar Sial, J:

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

----Ss. 9(a)(vi) & 9(b)---Bail, grant of---Illegal pecuniary advantage---Proof---Petitioner was ex-Provincial Minister who was arrested by National Accountability Bureau for misuse of his authority and causing loss to national exchequer---Validity---Investigating officer compared amount given by Provincial Government to advertising agencies, to amount which was charged by agencies to television channels---Giving of discount by an agency to a channel for business considerations could not be ruled out at bail stage---No evidence was available to the effect that differential amount (i.e., that paid by Provincial Government to agencies and that charged by agencies to television channels) found its way back to petitioner---Grant of bail did not mean an acquittal, it was only Trial Court that would be in a position to adjudicate on guilt or otherwise of petitioner after evidence was led and would be analyzed by Trial Court---Bail was allowed in circumstances.

The State through Advocate General N.W.F.P. v. Zubair and 4 others PLD 1986 SC 173 rel.

Khalid Jawed Khan for Petitioner.

Zahid Hussain Baladi, Special Prosecutor NAB for Respondent.

2020 M L D 634

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

GHULAM HYDER--- Applicant

Versus

The SPECIAL JUDGE, ANTI-CORRUPTION (P) HYDERABAD and 5 others---Respondents

Criminal Revision Application No.S-12 of 2018, decided on 23rd November, 2018.

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

----Ss. 200, 202 & 203---Examination of complainant---Postponement of issuance of process---Dismissal of complaint---Suppression of material facts---Effect---Complainant contended that he was awarded contract for construction of a road; that the government department paid substantial amount through running bills; that certain remaining amount with call deposit amount and security amount had not been paid, therefore, he filed direct complaint before the Special Judge Anti-Corruption (Provincial), which was dismissed---Validity---Complainant was awarded two different projects and the enquiry report revealed that the complainant did not complete the project and the scheme of the projects was later on taken out of Annual Development Plan and that no amount of complainant was outstanding against the department---Complaint revealed that the complainant had filed direct complaint by suppressing material facts---Trial Court, by dismissing the direct complaint, had not committed any illegality---Revision application, being devoid of merit, was dismissed.

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

----Ss. 200, 202 & 203---Examination of complainant---Postponement of issuance of process---Dismissal of complaint---Scope---Complaint is to state the facts to satisfy the Court of the existence of every ingredient of alleged offence, otherwise, complainant would not be entitled to invoke aid of the Court and to foist travails of criminal trial on a person, accused by him---In order to constitute offence, complainant must disclose existence of both basic ingredients namely unlawful act "actus rea" and criminal intent "mens rea" on the part of accused---Before issuing process, the Court is under obligation to satisfy itself for the purpose of ascertaining the truth or falsehood of the complaint as to the existence or non-existence of sufficient grounds to issue process against the accused---Main object of dealing with the examination of complainant under S.200 Cr.P.C. is to protect the public from false, frivolous and vexatious complaints filed against them---Court cannot proceed to issue process against accused until and unless, it is satisfied that prima facie case has been made out against those who are accused of the alleged criminal offence.

Qurban Ali Khaskheli for Applicant.

Mrs. Sobia Bhatti, A.P.G. for the State.

Respondents Badaruddin, Abdul Aleem Memon and Abdul Rasheed Soomro, present in person.

2020 M L D 675

[Sindh]

Before Abdul Mobeen Lakho, J

KASHIFULLAH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1412 of 2019, decided on 27th November, 2019.

Criminal Procedure Code (V of 1898)---

----497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9(c)---Recovery of 2 kilograms Charas---Bail, grant of---Further inquiry---Personal possession---Complainant recovered one bag from the side box of a passenger coach---Bag contained two packets of Charas, each packet weighing one kilogram--- Accused was arrested being owner of the said bag--- Accused contended that the narcotic had been recovered from the side box of the bus; driver of the bus had not been cited as Musheer of recovery and arrest and that a number of passengers were travelling in the bus but the investigating officer did not cite any independent person to witness the recovery---Delay of three and half hours in lodging of FIR and alleged charas had also been sent to Chemical Laboratory with delay which was not plausibly explained---Admittedly, complainant did not cite the Driver and Conductor of the bus to act as witnesses of the recovery, especially when the accused was pointed out by the driver to be the owner of the contraband---Bus from which the alleged contraband was recovered was not taken into custody---Ticket for travelling the bus was not recovered from physical possession of accused----Recovery was effected from side box of the bus i.e. outer side and not from the physical possession of the accused----Case of the accused fell within the domain of further inquiry---Accused was allowed bail, in circumstances.

Muneer Ahmed Gilal and Ahsan-ul-Haque for Applicant.

Nadeem Khan, Deputy Attorney General along with I.O. Shah Muhammad, Pakistan Coast Guard for the State.

2020 M L D 682

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Fahim Ahmed Siddiqui, JJ

SULTAN AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-11 of 2014, decided on 19th September, 2017.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Contradictory evidence---Failure to disclose the manner of sampling---Non-association of private witnesses---Effect---Accused was alleged to have been in possession of 1500 grams of charas which was recovered in the shape of patties---Mode and manner of sampling was not described by complainant either in the memo of arrest and recovery or during deposition---Prosecution case was that there were more than one patty of charas and in such a situation, sampling was required to be made separately from each patty---Non-following of mandatory procedure meant that at the most only 10 grams charas was said to be established as recovered quantity---Complainant and witnesses were not in agreement about the number of seals put on the sealed parcel---Admittedly, complainant and witnesses had beforehand information but they did not try to associate private witnesses for the purpose of arrest and recovery---Case of prosecution was not free from doubts---Appeal was allowed, in circumstances.

Tilokchand for Appellant.

Shahzado Saleem Nahiyoon, D.P.G. for the State.

2020 M L D 714

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Zulfiqar Ali Sangi, JJ

Dr. SALMAN GUL SILAWAT---Petitioner

Versus

CHANCELLOR OF UNIVERSITY OF SINDH and 7 others---Respondents

C. P. No. D-2802 of 2016, decided on 19th October, 2019.

Educational institution---

----Prospectus for admission---Limitation with regard to completion of a course---Scope---Petitioner was not allowed to sit in the examination on the ground that period of seven years within which he was required to pass the examination had expired---Contention of petitioner student was that no such condition was available in the prospectus for admission---Validity---Prospectus was a formal document having details with regard to school, college and its activities---Prospectus was not a substitute for relevant Rules and Regulations under which a candidate's admission would be regulated by the university or college---Petitioner was allowed on his own application to appear in the examination for last time on a condition to submit affidavit but he did not avail such opportunity---Criteria of three consecutive opportunities had not been met by the petitioner---Petitioner was required to complete course during seven years but he could not achieve that benchmark, he was not entitled for discretionary relief, in circumstances---Constitutional petition was dismissed accordingly.

Dr. Raana Khan for Petitioner.

Allah Bachayo Soomro, Additional Advocate General, Sindh for Respondent No.1.

Kamaluddin for Respondents Nos. 2 to 8.

2020 M L D 723

[Sindh]

Before Abdul Maalik Gaddi, J

MUHAMMAD SHARIF--- Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1082 of 2019, decided on 23rd August, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act ( XXV of 1997), Ss. 6/9(c)---Possession and trafficking narcotics ---Bail, grant of---Joint memo of recovery and arrest---Recovery of 2100 grams of charas along with a loaded firearm from the possession of accused---No private witnesses had been associated to witness the event by the prosecution and no explanation had been furnished in that regard---Accused had been granted bail in case registered under Sindh Arms Act, 2013 on the basis of same set of evidence---Prosecution witnesses, if disbelieved , in one criminal case on the basis of joint memo, could not be relied upon with regard to accused in other case, unless they were corroborated by evidence, which came from unimpeachable independent source, which was apparently lacking in the present case---Mere pendency of the criminal case/cases against accused did not ipso facto disentitle him for grant of bail, unless it had been ended into conviction by the Superior Courts---Accused was behind the bar since his arrest and no substantial progress had been made in the trial by the Trial Court---Speedy trial was the right of every person, therefore, even if the provision of S.497, Cr.P.C., in ordinary course was not applicable to an accused person facing charges, broader principle of the same could be pressed into service in hardship cases to provide relief to a deserving accused incarcerated in jail for a shocking long period---Further detention of accused for indefinite period in the present case would not advance the prosecution case---Accused having made out a case for grant of bail, bail was granted.

Amanullah Kakar for Applicant.

Sagheer Abbasi, Assistant Prosecutor General, Sindh for the State.

2020 M L D 740

[Sindh]

Before Salahuddin Panhwar, J

Mst. BENISH LIAQUAT---Petitioner

Versus

The STATION HOUSE OFFICER and 2 others---Respondents

Constitutional Petition No. S-2116 of 2018, decided on 17th October, 2018.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas Corpus petition---Scope---Recovery of minor, a suckling baby---Application of the petitioner/mother for recovery and handing over the minor to her was dismissed by the Trial Court on the ground that dispute of the parentage was involved over the minor---Validity---Provision of S. 491, Cr.P.C. could well be invoked in matter of custody of minor even where question of illegal confinement was not involved---Said provision of law could well be exercised even if the custody was not illegal but was improper---Remedy under S. 491, Cr.P.C., was summary in nature, yet it nowhere restrained one to make an inquiry, particularly when it might have advanced the cause of justice and was otherwise not restrained---Court avoid bringing legitimacy of a child into dispute except when such issue was raised for its determination---In the present case, parentage was not disputed---Lap of the mother had been considered as lap of God---Custody of suckling baby was handed over to the petitioner/mother, in circumstances---Petition was disposed of accordingly.

Zohra Bibi v. Sultan Mahmood 2018 SCMR 762 rel.

Altaf Hussain along with Petitioner Mst. Beenish and Urooj sister of Petitioner.

Qadir Hussain Khan for Respondent No.2 along with Ayesha Younus, Adnan Khan, Basalat A. Khan.

2020 M L D 755

[Sindh]

Before Fahim Ahmed Siddiqui, J

MAZAL KHAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1021 of 2019, decided on 9th August, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code ( XLV of 1860), Ss. 302/201/203/109/34---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender, giving false information respecting an offence committed, abetment, common intention---Bail, refusal of----Allegation against accused was that he had beaten his wife brutally on some domestic affair and as a result of multiple injuries on her body she died---Daughter of the accused had fully implicated his father for the said brutality with her mother---Accused escaped from the scene of offence after the incident and was arrested after great efforts of investigators, which itself was sufficient to involve the accused in the commission of offence---Motive was also available against accused as he intended to marry a girl and was ready to give hand of his daughter in exchange of his second marriage---Role assigned to accused and motive available against him, while his daughter had deposed against him, sufficient material was available with the prosecution to connect the accused with the alleged incident---Accused was not entitled for the concession of bail---Bail application was dismissed, in circumstances.

Mushtaq Ahmed Joiya along with Ms. Azra Hammad for Applicant.

Sagheer Ahmed Abbasi, A.P.G. for the State.

2020 M L D 763

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Zulfiqar Ali Sangi, JJ

ASHKARAN alias AASHANKAR and others---Petitioners

Versus

The STATE (NAB) through Director General and 3 others---Respondents

Constitutional Petitions Nos. D-2019, D-2274, D-2088 of 2014 and D-173, D-241 of 2015, decided on 10th October, 2019.

National Accountability Ordinance (XVIII of 1999)---

----Ss. 9(a)(iv)(vi) & 9(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Pre-arrest bail, refusal of---Prima facie case---Rule of consistency---Applicability---Petitioners sought pre-arrest bail primarily on grounds that bails after arrest was allowed to their co-accused persons---Validity---Co-accused persons were granted post-arrest bail and same was governed by different principles than those regulating pre-arrest bail, therefore, rule of consistency was not applicable---Role ascribed to co-accused persons was quite different to what had been alleged against petitioners---Nothing was on record to show that petitioners had been implicated in case out of mala fide by National Accountability Bureau so as to bring their case within defined lines on which pre-arrest bail was granted---While deciding bail petitions elaborate sifting of evidence could not be made but only tentative assessment was required---Cursory glance of record showed that all petitioners in connivance with officials of Tehsil Municipal Authority had caused huge loss to government exchequer----Pre-arrest bail was declined in circumstances.

C.P No. D-5899 of 2014; C.P No. D-194 of 2015 and Rana Mohammed Arshad v. Muhammad Rafique PLD 2009 SC 427 ref.

Talat Ishaq v. National Accountability Bureau through its Chairman PLD 2019 SC 112; Rana Mohammed Arshad v. Muhammad Rafique PLD 2009 SC 427 and Mukhtar Ahmad v. The State and others 2016 SCMR 2064 rel.

Mrs. Razia Ali Zaman for Petitioner (in C.P. No. D-2019 of 2014)

Zahoor Ahmed Baloch for Petitioner(s) (in C.P. No.D-2088 of 2014, C.P. No.D-241 of 2015 and C.P. No.D-173 of 2015).

Syed Shahzad Ali Shah for Petitioner(s) (in C.P. No.D-2274 of 2014).

Jangu Khan, Special Prosecutor, NAB for the State.

Aslam Pervaiz Khan, Asst. Attorney General.

2020 M L D 776

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Mahar and Irshad Ali Shah, JJ

SIBGHATULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-67 and Confirmation Case No. D-05 of 2013, decided on 23rd April, 2019.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), Ss. 221, 222, 227 & 228---Qatl-i-amd, common intention---Allegation against accused was that he along with the rest of the culprits in furtherance of their common intention committed qatl-i-amd of two persons by causing fire shot injuries---Held; place of incident and the name of deceased were incorrectly mentioned in the charge---Charge so framed against the accused was defective and did not fulfil the requirements of S. 221, Cr.P.C., even though subsequently the place of incident and name of the deceased were corrected but it was not enough to cure the defect as it was corrected when the case was at the verge of its final disposal---High Court remanded the case to the Trial Court for de novo trial.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Examination of prosecution witnesses in absence of the counsel of accused---Effect---Allegation against accused was that he along with the rest of the culprits in furtherance of their common intention committed qatl-i-amd of two persons by causing fire shot injuries---Held; examination-in-chief of the complainant and good number of witnesses was recorded in absence of counsel of the accused---Every criminal case which entailed capital punishment could only be proceeded on appearance of a qualified legal practitioner engaged by the accused himself or engaged for the accused at State expenses---High Court remanded the case to the Trial Court for de novo trial.

Purna Chandra Mondal v. The State 1970 PCr.LJ 746 rel.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 367---Allegation against accused was that he along with the rest of the culprits in furtherance of their common intention committed qatl-i-amd of two persons by causing fire shot injuries---Held; conviction and sentence recorded against the accused for an offence punishable under S. 302(b), P.P.C. did not specify as to whether, it was for single or double murder, although the accused was specifically charged for the murder of two persons---Provisions of S. 367, Cr.P.C. were not complied with by the Trial Court in letter and spirit, which had rendered the impugned judgment to be illegal---High Court remanded the case to the Trial Court for de novo trial.

Mushtaque Ahmed Abbasi for Appellant.

Shabbir Ali Bozdar for the Complainant.

Aftab Ahmed Shar, Additional Prosecutor General for the State.

2020 M L D 786

[Sindh]

Before Khadim Hussain M. Shaikh, J

ANWAR alias SAEED KHAN BUGTI---Applicant

Versus

The STATE---Respondent

1st Criminal Bail Application No.S-94 of 2009, decided on 21st August, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497--- Penal Code (XLV of 1860), Ss. 302, 324, 148, 149, 337H(2)---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly and hurt---Bail, grant of---Further inquiry---No specific role assigned to accused only aerial firing was attributed---Applicant/accused, though, armed with pistol was not alleged to have even attempted to cause any injury either to deceased or to any of the prosecution witnesses---Only allegation against him was that he along with an unknown person while leaving the scene of incident had made aerial firing---Case of the accused/applicant fell within the ambit of subsection (2) of S.497, Cr.P.C.---Accused had remained in custody for more than sixteen months---Bail was granted to the accused, in circumstances.

Sarfaraz Khan Jatoi for Applicant.

Habibullah G. Ghouri for the Complainant.

Aitbar Ali Bullo, D.P.G. for the State.

2020 M L D 788

[Sindh]

Before Abdul Mobeen Lakho, J

ISMAIL WALIULLAH and 2 others---Applicants

Versus

The STATE ---Respondent

Criminal Bail Application No. 975 of 2019, decided on 25th November, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 420, 468, 471 & 109---Foreigners Act (XXXI of 1946), Ss. 3(2) & 13/14---Cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, abetment, concealing and refusing to furnish information which a person ought to disclose or furnish---Bail, grant of---Further inquiry---Federal Investigation Agency (FIA) offloaded passengers of foreign origin for allegedly travelling on fake visas/travelling documents---Accused/passengers contended that their documents were genuine and that the complainant of the FIR was also the investigating officer of the case---Accused/passengers were travelling from abroad to Pakistan and were to board for another country; they were allowed to exit for onward journey, their passports and visas were scanned electronically and they were permitted to exit without any hindrance---Prosecution had nothing on record except the letters written by the investigating officer for verification of travelling documents---Officer who registered the FIR was to transfer the same to some other officer for investigation instead of investigating the same on his own whims, which was against the norms of criminal justice---Accused had successfully made out a case of further probe into their guilt ---Bail was allowed, in circumstances.

Qamar Iqbal for Applicants.

Choudhry Wasim, A.A.G. along with Shaikh Suhail, Investigation Officer, FIA, AHTC, Karachi for the State.

2020 M L D 809

[Sindh]

Before Muhammad Saleem Jessar, J

MUHAMMAD ASLAM and another---Applicants

Versus

PROVINCE OF SINDH through Secretary, Government of Sindh Revenue Department, Karachi and 3 others---Respondents

Civil Revision Application No. 234 of 2011, decided on 16th November, 2019.

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

----S. 11--- Res judicata, principle of--- Applicability--- Scope---Contention of plaintiff, in suit for declaration and permanent injunction, was that he was owner in possession of the suit property---Suit was decreed concurrently---Validity---Preconditions attracting the provisions of S.11, C.P.C. were that parties and issues in the previous and subsequent suit should be the same litigating under the same title---Parties in the previous suit and in the present suit were not the same and issues to be determined were also different---Reliefs sought in both the suits were different---Mandatory preconditions for attracting the principle of res judicata were not available in the present case---Principle of re judicata was not applicable, in circumstances---Both the Courts below had exhaustively dealt with each and every issue and assigned cogent reasons for their findings---Defendant had failed to point out any defect in the impugned judgments and decrees passed by the Courts below---Courts below had neither assumed jurisdiction nor had vested in them nor had failed to exercise the jurisdiction vested in them by law---Defendant had no good case for interference into the findings recorded by the Courts below---Revision was dismissed, in circumstances.

PLD 2003 SC 484; Messrs Mateen Corporation v. Messrs Plasticrafters (Pvt.) Ltd.) PLD 2006 Kar. 621; Messrs Imperial Builders through Managing Partner and another v. Lines (Pvt.) Limited through Chief Executive and 3 others PLD 2006 Kar. 593; PLD 2015 SC 212; Maj. Rashid Beg v. Rehmatullah Khan and 4 others PLD 2001 SC5 443; Khan Mir Daud Khan and others v. Mahrullah and others PLD 2001 SC 67; Abdul Sattar v. Mst. Anar Bibi and others 2007 SCMR 609; Muhammad Ishaque and another v. Mst. Manzooran Bibi alias Shahida Parveen and another PLD 2003 SC 128 and Maqbool Ahmed v. Government of Pakistan 1991 SCMR 2063 ref.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Revisional jurisdiction of High Court was limited---High Court, in exercise of revisional jurisdiction could not disturb/interfere into concurrent findings of Courts below---Revisional jurisdiction could be exercised only in those cases where subordinate Court had exceeded its jurisdiction or had declined to exercise jurisdiction or had acted in exercise of its jurisdiction in a manner contrary to law or in a manner not warranted by law---Findings of facts recorded by the First Appellate Court based on appraisal of evidence could not be interfered with merely because a different view was also possible to be taken.

Haji Mohammad Din v. Malik Mohammad Abdullah PLD 1994 SC 291 and Shahbaz Rasool and 4 others v. Aamir Imran and 7 others 2011 CLC 1941 rel.

Mirza Sarfaraz Ahmed for Applicants.

Shabbir Ahmed Kumbhar for Respondents Nos.4 and 5.

2020 M L D 820

[Sindh]

Before Aqeel Ahmed Abbasi and Aziz-ur-Rehman, JJ

ANEES-UR-REHMAN---Applicant

Versus

Messrs FAYSAL BANK LIMITED through Manager---Respondent

C.M.A. No.1619 of 2018 in 1st Appeal No. 12 of 2018, decided on 7th October, 2019.

(a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)---

----Ss. 10, 9, 7 & 2(d)---Procedure of Banking Court---Suit under the Financial Institutions (Recovery of Finances) Ordinance, 2001---Nature---Provisions of Ss.9 & 10 of Financial Institutions (Recovery of Finances) Ordinance, 2001---Mandatory in nature---Banking Suit under the Financial Institutions (Recovery of Finances) Ordinance, 2001 was well-defined and controversies in such a suit were restricted to "availed", "claimed", or "dispute amounts" and facts in support thereof---Controversial details, unnecessary facts and time for the trial under the Financial Institutions (Recovery of Finances) Ordinance, 2001 was curtailed by its provisions---Trial under the Financial Institutions (Recovery of Finances) Ordinance, 2001 was restricted only to claimed or disputed amounts and therefore was a suit of accounts duly based on credit, debit and balance entries properly ledgered and maintained in Books of Accounts---Provisions of Ss.9 & 10 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 being mandatory, parties were compulsorily obliged not only to plead but also state nature of accounts otherwise such parties were bound to face legal consequences.

Bankers Equity Ltd. and 5 others v. Messrs Bentonite Pakistan Ltd. through Chief Executive and 7 others 2010 CLD 6511 and Apollo Textile Ltd. v. Soneri Bank Ltd. 2012 CLD 337 rel.

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

----O. VII, Rr. 11 & 13--- Rejection of plaint---Rejection of plaint under O. VII, R. 11, C.P.C. did not preclude a plaintiff from instituting a subsequent suit on basis of same cause of action under O. VII, R. 13, C.P.C.---Interest of litigants was guarded when an incompetent suit or one which was barred under law, was not allowed to continue as the same could consume valuable time of court and encumber legal proceedings in a futile manner.

S.M. Shafi Ahmed Zaidi through Legal Heirs v. Malik Hassan Ali Khan [MOIN] through Legal Heirs 2002 SCMR 338 rel.

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

----O. VI, R. 17---Pleadings---Amendment in pleadings---Allowing amendment to a plaint in a suit----Order VI, R. 17, C.P.C. not applicable to amendments of order/judgment of a court----Doctrine of functus offico---Scope---Order VI, R. 17, C.P.C. only pertained to amendments in pleadings by either party in such a manner and on such terms which were equitable and just and which were necessary in determining real controversy between parties---Under the garb of O. VI, R. 17, C.P.C. no amendment in "judgment" ,"decree" or "order" could be made---Adjudicating authority, whether judicial or quasi-judicial, could not change its determination after signing of a judgment or order or decree as then the doctrine of functus officio becomes applicable.

(d) Functus officio, doctrine of---

----Meaning---Doctrine of "functus officio" meant having fulfilled all functions, discharged duty / duties, or discharged office, or accomplishment of purpose, which resulted in something no longer remaining in force or having authority.

Law Lexicon Venkatraramaiya rel.

Appellant in person.

Nemo for Respondent.

2020 M L D 839

[Sindh (Larkana Bench)]

Before Khadim Hussain M. Shaikh, J

MUHAMMAD ISMAIL---Applicant

Versus

The STATE---Respondent

1st Criminal Bail Application No. S-400 of 2019, decided on 21st October, 2019.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 489-F/506(ii)/504---Dishonestly issuing a cheque, criminal intimidation and intentional insult with intent to invoke breach of the peace---Interim pre-arrest bail, confirmation of----Delay in lodging of FIR---Further inquiry---Cheque in question was bounced on 02.01.2019 and complainant filed suit for recovery and damages on 16.04.2019, whereas FIR was lodged on 20.06.2019 by showing another incident for the offence under Ss.506(ii) & 504, P.P.C., to have taken place on 07.05.2019---Parties were already tagged in civil litigation---Offences with which the accused was charged did not fall within the prohibitory clause of S. 497, Cr.P.C. ---Accused had successfully made out a case for grant of pre-arrest bail---Ad interim pre-arrest bail already granted to accused was confirmed, in the circumstances.

Ashfaque Hussain Abro for Applicant.

Aitbar Ali Bullo, D.P.G. for the State.

Syed Lal Shah for the Complainant.

2020 M L D 847

[Sindh]

Before Abdul Mobeen Lakho, J

AMEER ALAM---Applicant

Versus

The STATE---Respondent

Bail Application No. 1478 of 2019, decided on 31st October, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 269, 270 & 337-J---Negligent act likely to spread infection of disease dangerous to life, malignant act likely to spread infection of disease dangerous to life, causing hurt by means of poison---Bail, grant of---Further inquiry­­---Recovery of Gutka weighing 1200 grams and Mawa 400 grams from accused--- Admittedly, as per FIR, incident occurred at bus stand where people were present but the prosecution failed to associate any person so approached to become witness of recovery and incident, violating S. 103, Cr.P.C.---Prosecution did not mention if accused was seller or acting on behalf of seller and/or purchaser of Gutka---Recovered material being easily available in the market could be used for mala fide intention---Sections 269 & 270 were bailable, ingredients of S.337-J showed that the same were yet to be determined, which could only be done at trial after recording of evidence---Accused had made it a case of further inquiry---Accused was admitted to bail, in circumstances.

Syed Ahmed Ali Shah for Applicant.

Muntazir Mehdi, D.P.G. along with I.O./A.S.I. Wali Muhammad for the State.

2020 M L D 871

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MUHAMMAD AZEEM and others---Appellants

Versus

The STATE---Respondent

Special Anti-Terrorism Appeals Nos. 352, 353, 354 and 355 of 2018, decided on 19th December, 2019.

Sindh Arms Act (V of 2013)---

----Ss. 3 & 23(1)(a)---Explosive Substances Act (XI of 1908), S.5---Criminal Procedure Code (V of 1898), S.265-H(2)---Recovery of unlicensed firearms and explosive substance---Appreciation of evidence---Sentence, reduction of---Police witnesses---Young age of accused---Unlicensed rifles and explosive substance was recovered from the possession of accused persons---Trial Court convicted both the accused persons and sentenced them to imprisonment for various terms---Validity---Some minor discrepancies were found in evidence of witnesses which generally occur in each and every case and the same were to be over-looked---Only material contradictions were to be taken into consideration---Police officials were as good as private witnesses and their testimony could not be discarded merely for the reason that they were police official unless accused would succeed in giving dent to the statements of prosecution witnesses and prove their mala fide or ill-will against accused but they could not do or show during the cross examination---High Court maintained the conviction as prosecution proved its case beyond reasonable doubt against accused persons---Sentences awarded to both the accused were reduced due to their young age---Appeal was dismissed in circumstances.

Muhammad Arif alias Mama v. The State PLD 2003 SC 942 ref.

Zakir Khan v. The State 1995 SCMR 1793 and Zafar v. The State 2008 SCMR 125 rel.

Muhammad Hanif Samma for Appellant (in Appeals Nos. 352 and 353 of 2018).

Moula Bux Bhutto for Appellant (in Appeals Nos. 354 and 355 of 2018).

Muhammad Iqbal Awan, Deputy Prosecutor General for the State.

2020 M L D 886

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Syed SALAHUDDIN---Appellant

Versus

NATIONAL ACCOUNTABILITY BUREAU---Respondent

Criminal Accountability Appeal No. 3 of 2018, decided on 13th December, 2019.

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

----S. 9(a)(iii) & (b)---Corruption and corrupt practices---Misappropriation of funds---Appreciation of evidence---Extra judicial confession, sanctity of---Benefit of doubt---Complaint against accused was lodged regarding misappropriation of funds while he was Operation Manager/Joint Custodian of Bank---Initially departmental inquiry was conducted and a team was constituted who conducted inquiry---Accused, during departmental inquiry, confessed his guilt before Committee and submitted his written confession duly signed by other witnesses---Accused gave cheque for repayment of misappropriated amount for which he in his handwriting submitted applications---Accused requested for time for repayments but he failed to pay amount back which led to matter before NAB for inquiry---Confession of accused was fully corroborated by prosecution witnesses and his confession was also corroborated by documentary evidence produced by witnesses---Confession was made voluntarily and was not obtained by torture, coercion or inducement as at time of confession, matter was not in hands of NAB nor any FIR was registered against accused nor he was in custody and he was not suspended from his service at that time---Confession of accused was also true and corroborated by fact that he voluntarily issued cheque from his personal account and agreed to pay balance back by installments once his criminality came to light---Prosecution proved its case beyond a reasonable doubt against accused by producing reliable, trustworthy and confidence inspiring oral evidence as well as documentary evidence in support of same coupled with confessional statement of accused---High Court declined to interfere in orders passed by Trial Court as a deterrent sentence was appropriate---Appeal was dismissed in circumstances.

PLD 1967 Kar. 800; PLD 1980 Lah. 40; 1984 PCr.LJ 2511; PLD 1960 WP (Lah.) 24; 1989 PCr.LJ 1344; 1993 PCr.LJ 2423; 1982 PCr.LJ 658; PLD 2019 SC 64; PLD 2002 Lah. 95; 2001 PCr.LJ 1736; PLD 2000 SC 18; PLD 2010 SC 29; 2019 SCMR 372; 2013 PCr.LJ 1089; 2019 PCr.LJ 1001 and 2015 PCr.LJ 697 ref.

(b) Criminal trial---

----Confession---Extra judicial confession---Prerequisites---Evidence of extra judicial confession is a fragile piece of evidence and great care and caution has to be exercised in placing reliance on such a confession---Such confession is always looked at with doubt and suspicion due to ease with which it may be concocted---Legal worth of extra judicial confession was almost equal to naught, keeping in view nature, course of events, human behaviour, conduct and probabilities in ordinary course---Extra judicial confession could be taken as corroborative of charge if it, in first instance, rang true and then found support from other evidence of unimpeachable character---If other evidence lacked such attribution it had to be excluded from consideration---For awarding conviction on basis of extra judicial confession threefold proofs are required i.e., firstly, it was in fact made; secondly, that it was voluntarily made; and thirdly, it was true---Judicial or extra judicial confession could be made sole basis for conviction of an accused if court was satisfied and had believed that it was true and voluntary and was not obtained by torture, coercion or inducement.

PLD 2019 SC 64 and 2011 SCMR 1233 rel.

Nisar Ahmed Tarar for Appellant.

Khalid Mehmood Awan and R.D. Kalhoro, Special Prosecutors NAB for Respondent.

2020 M L D 905

[Sindh]

Before Nazar Akbar, J

REHMATULLAH REHAN, Proprietor of Chatriwala International---Appellant

Versus

MUHAMMAD ZIA-UD-DIN and another---Respondents

Criminal Appeal No. 390 of 2017, decided on 26th March, 2019.

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

----Ss. 500 & 501---Criminal Procedure Code (V of 1898), Ss.200 & 201---Appreciation of evidence---Benefit of doubt---Defamation---Private complaint---Accused-appellant was convicted and sentenced to fine on the basis of moving false complaints and publishing pamphlets with defamatory words against the respondents---Complainant produced two witnesses including his brother in support of his claim---Record showed that Trial Court, after recording statement of accused under S. 342, Cr.P.C. and hearing final arguments, without assigning any reason, instead announcing order on merit, restarted the trial and issued process for evidence to the Additional Collector as court witness---Trial Court, after recording statement of court witness, recorded statement of accused under Ss.342 & 340(2), Cr.P.C. second time---Accused, after second statement under S.342, Cr.P.C. had examined himself on oath and had produced documents showing character of the complainant---Record showed that Trial Court failed to appreciate that even complainant's own brother had not supported him---Trial Court misinterpreted the evidence with reference to the burden of proof in criminal cases---Record did not show that the complainant had by way of rejoinder affidavit denied the contents of counter affidavit of officials containing the allegation of blackmailing and harassment by the complainant and, therefore, it ought to have been accepted as admitted document about a truth---Trial court failed to appreciate that the complainant was not aggrieved by derogatory remarks on oath against him---If such remarks did not cause any defamation to the complainant then how a letter written to any government functionary, which had not been conveyed to the complainant, would have caused any injury to the complainant---Trial Court clearly favoured the complainant when he convicted the accused and sentenced him to pay fine of Rs. 100,000/- as punishment and further ordered that fine be paid to the complainant---Trial Court had no authority to handover the amount of fine to the complainant---Amount of fine imposed as punishment had to be deposited by court through its ministerial office in the government treasury---Circumstances established that complainant failed to prove his claim---Appeal was allowed and accused was acquitted by setting aside the conviction and sentence recorded by the Trial Court.

(b) Criminal trial---

----Burden of proof---Scope---Burden is never shifted on accused unless the prosecution evidence is found to have proved the commission of offence beyond a reasonable doubt.

Ashfaque Ahmed Shah for Appellant.

Ishrat Ghazali for Respondent No.1.

Ms. Rahat Ahsan, Addl. P.G. for Respondent No.2.

2020 M L D 919

[Sindh (Larkana Bench)]

Before Arshad Hussain Khan, J

MUNAWAR ALI---Applicant

Versus

SEPCO through Chief Executive, Sukkur and 4 others---Respondents

Civil Revision No. S-65 of 2018, decided on 16th September, 2019.

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

----O. VII, R. 2---Money suit---Plaintiff filed recovery suit for damages due to mental torture and agony---Suit was dismissed concurrently---Validity---Plaintiff had to prove and establish his case on the strength of his own evidence and he could not get any benefit from the shortcomings and weakness of the case of the defendant---Plaintiff, in the present suit, had claimed general damages and he was required to establish the same through cogent and reliable evidence---Mere feeling of resentment in one's mind was not sufficient to establish general damages---If a person claimed mental torture/agony then initial burden would lie upon him to lead evidence on such point---General damages were to be assessed following the 'rule of thumb' and said exercise would fall within the discretionary jurisdiction of Court which had to be decided according to facts and circumstances of each case---No illegality, irregularity or infirmity had been pointed out in the impugned judgments passed by the Courts below---Revision was dismissed, in circumstances.

WAPDA v. Amin Ice Factory 2001 MLD 1287; Muhammad Abid v. Mst. Nasreen Yousuf and another 2004 YLR 1999; Farrukh Saeed Khan v. Anis-ur-Rehman Bhatti 2006 CLC 440 and Pattoki Ice Factory v. Revenue Officer and others 1996 CLC 1636 distinguished.

Murtaza Ali v. Sabir Ali Bangash 2015 YLR 1239; Mst. Nagina Begum v. Mst. Tahzim Akhtar and others 2009 SCMR 623; Messrs Klb-e-Hyder and Company (Pvt.) Ltd., through Chief Executive v. National Bank of Pakistan through President and 3 others 2008 CLD 576; Chief Officer, District Council, Sheikhupura and 2 others v. Haji Sultan Safdar and 2 others 1999 YLR 1963; Government of Khyber Pakhtunkhwa and others v. Syed Jaffar Shah 2016 MLD 223; Mubashir Ahmad v. Syed Muhammad Shah through Legal Heirs 2011 SCMR 1009; Dr. M. Raza Zaidi v. Glaxo Wellcome Pakistan Limited, Karachi 2018 MLD 1268; Chairman, Mari Gas Co. Ltd. and 2 others v. Abdul Rehman [2017 YLR 2505; Mir Muhammad alias Miral v. Ghulam Muhammad PLD 1996 Kar. 202 and AASA v. Ibrahim 2000 CLC 500 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope.

Revision is a matter between the higher and subordinate Courts, and the right to move an application in this respect by the Applicant, is merely a privilege. The provisions of section 115, C.P.C., have been divided into two parts; first part enumerates the conditions, under which the Court can interfere and the second part specify the type of orders which are susceptible to revision jurisdiction under section 115, C.P.C., is discretionary in nature, but it does not imply that it is not a right and only privilege, therefore, the Court may not arbitrarily refuse to exercise its discretionary powers, rather, to act according to law and the principles enunciated by the superior Courts.

On entertaining a revision petition, the High Court exercises its supervisory jurisdiction to satisfy itself as to whether the jurisdiction by the Courts below has been exercised properly and whether the proceedings of the subordinate Court do suffer or not from any illegality or irregularity.

Section 115, C.P.C. envisage interference by the High Court only on account of jurisdiction alone, i.e. if a Court subordinate to the High Court has exercised a jurisdiction not vested in it, or has irregularly exercised a jurisdiction vested in it or has not exercised such jurisdiction so vested in it. When a Court has jurisdiction to decide a question it has jurisdiction to decide it rightly or wrongly both on fact and law. Mere fact that its decision is erroneous in law does not amount to illegal or irregular exercise of jurisdiction. For an Applicant to succeed under section 115, C.P.C., he has to show that there is some material defect or procedure or disregard of some rule of law in the manner of reaching that wrong decision. In other words, there must be some distinction between jurisdiction to try and determine a matter and erroneous action of a Court in exercise of such jurisdiction. Erroneous conclusions of law or fact can be corrected in appeals and not by way of a revision which primarily deals with the question of jurisdiction of a Court i.e. whether a Court has exercised a jurisdiction not vested in it or has not exercised a jurisdiction vested in it or has exercised a jurisdiction vested in it illegally or with material irregularity.

Muhammad Sadiq v. Mst. Bashiran and 9 others (PLD 2000 SC 820 rel.

Applicant present in person.

Abid Hussain Qadri for Respondents Nos. 1 and 3.

Nemo for Respondents Nos. 2 and 4.

Abdul Reham Abro, Assistant Attorney General for Respondent No.5.

2020 M L D 942

[Sindh]

Before Salahuddin Panhwar, J

RAFIULLAH---Applicant

Versus

11TH ADDITIONAL DISTRICT AND SESSIONS JUDGE (WEST), KARACHI and another---Respondents

Criminal Revision No. 160 of 2018, decided on 31st January, 2019.

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

----Ss. 540, 265-F & 493---Power to summon material witnesses or examine person present---Evidence of prosecution---Public prosecutor to conduct prosecution---Scope---Application moved by complainant for summoning of witnesses, who were not cited in the list of witnesses, was dismissed by Trial Court---Validity---Names of witnesses, sought to be examined by the complainant, were not mentioned in challan which, prima facie, suggested that said witnesses never approached the investigation officer during investigation process nor the complainant claimed them to be witnesses of the incident during investigation---Complainant had not challenged the list of witnesses, detailed in the challan, by filing a direct complaint---Said act suggested satisfaction of the complainant about names of witnesses that came to surface during investigation---Complainant, being not an investigating officer, was not justified to bring new names as witnesses that, too, after conclusion of trial else same would prejudice the purpose of list of witnesses which as, prima facie, was to let the accused know the evidence likely to be led against him within the meaning of S. 265-F, Cr.P.C.---Complainant himself had filed the application who, otherwise, was legally obliged to act through the Prosecutor, as directed by S. 493, Cr.P.C.---Reasons given by Trial Court were quite justified---Petition was dismissed.

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

----S.265-F---Evidence of prosecution---Scope---Section 265-F, Cr.P.C. ensures a fair opportunity to both prosecution and defence in bringing their respective witnesses/material on record but not as a surprise or to prolong the conclusion of trial.

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

----S. 540---Power to summon material witnesses or examine person present---Scope---Trial Court is competent to call any witness as a court witness on an application---Where prosecution wishes to examine a witness, not named in the list of witnesses, it could not claim it as a right but it shall be required to satisfy the conscience of court that such examination is, indeed, for discovery of truth.

Chairman, NAB v. Muhammad Usman PLD 2018 SC 28 rel.

Ali Khan for Applicant.

Nasrullah Khatri for the Complainant.

Faheem Hussain, D.P.G. for Respondents.

2020 M L D 945

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Fahim Ahmed Siddiqui, JJ

BASHIR AHMED alias NAZEER ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-59 of 2018, decided on 22nd November, 2018.

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

----Ss. 6 & 9(c)---Criminal Procedure Code (V of 1898), S. 103(5)---Possession of narcotic drugs---Appreciation of evidence---Non-association of private witnesses---Effect---Failure to take action against the person who refused to witness the search---Effect---Accused was charged for possession of 2500 grams of hashish---Raiding party, according to first information report (FIR), had prior spy information about the accused having hashish but no private person was associated to witness the recovery proceedings---When recovery was stated to have taken place near a petrol station, then failure to secure independent witnesses could not be brushed aside---Prosecution witnesses had statedly tried to associate private persons at the place of recovery but private persons excused, however, admittedly no action was taken against those private persons, hence, such assertion did not carry weight---No fake customer was sent for purchase of hashish from the accused before the raid---Complainant was also the Investigating Officer of the case---Complainant could not have investigated the same case, which must have been investigated by an independent officer---Constable who carried the case property to the Chemical Examiner was not examined by the prosecution in order to show safe transmission---Case against accused stood established in spite of discrepancies---Appeal was dismissed and sentence of accused was reduced to the one already undergone.

Nazir Ahmed v. The State PLD 2009 Kar. 191; Muhammad Khalid v. The State 1998 PCr.LJ 808; Ghulam Murtaza v. The State PLD 2009 Lah. 362; Socha Gul v. The State 2015 SCMR 1077 and State v. Mujahid Nasim Lodhi PLD 2017 SC 671 ref.

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

----S. 103---Search to be made in presence of witnesses---Object---Object of S. 103, Cr.P.C. is to ensure transparency and fairness on the part of the police during the course of recovery proceedings and diminish the scope of foisting fake recoveries.

G.M. Laghari for Appellant.

Muhammad Ayoub Kassar, Special Prosecutor for Anti-Narcotic Force for Respondent.

2020 M L D 952

[Sindh]

Before Naimatullah Phulpoto and Mohammad Karim Khan Agha, JJ

ALI GUL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 412, Criminal Jail Appeal No. 416 and Confirmation Case No. 7 of 2017, decided on 24th April, 2019.

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

----Ss. 302(b), 324 & 337-H(2)---Qatl-i-amd, attempt to commit qatl-i-amd, act endangering human life or the personal safety---Appreciation of evidence---Benefit of doubt---Ocular and medical account---Contradictions---Prosecution case was that the accused had murdered the nephew of complainant and also injured the daughter of sister of complainant by firing---Motive for the murder was that the deceased had refused to give the accused lift in his vehicle---Prosecution had produced three eye witnesses in support of its case that the accused by a single firearm shot fired from his pistol killed the deceased and that the said bullet passed through his cheek and entered the head of injured, who was sitting next to him, who was seriously injured---Said eye witnesses identified the accused as having fired at and killing the deceased---Eye-witnesses had corroborated each other in all material aspects---Ocular evidence was also corroborated by the medical evidence and the fact that only one empty was recovered from the scene---Forensic Science Laboratory report was positive as was the Chemical report---Incident was a night time one and there was no evidence of any source of light and it was not possible for the eye witnesses to identify the accused---Fact that they did not name accused-appellant as the culprit when the eye witnesses reached the police station immediately after the incident and instead named unknown accused gave credence to the fact that the accused was not identified at the scene but was made accused after consultation before registering the FIR especially as accused was not arrested from the spot---Police investigation showed that a witness was present when the accused was arrested and he signed the mashirnama of arrest and recovery---Said witness, during cross examination, had denied his presence during the arrest and his signature on the mashirnama of arrest and recovery---Same was the position when the motor bike of the accused was seized---Accused allegedly fled the scene whilst making aerial firing but no empties were recovered---Blood-stained clothes of the deceased were not taken and sealed on the spot but rather given to the police in a bag---Blood stains found on clothes could not be safely relied upon due to the broken chain of custody---Deceased was killed in the vehicle but no blood stains were found in the vehicle when it was inspected---Prosecution had failed to prove its case beyond any shadow of doubt---Appeal was allowed, in circumstances.

Abdul Jabbar v. State 2019 SCMR 129; Lal Khan v. State 2006 SCMR 1846; Khalid and Khalidi v. State 2012 SCMR 327 and Zahid v. The State PLD 1993 Kar. 337 ref.

Muhammad Ehsan v. The State 2006 SCMR 1857 rel.

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

----Ss. 302(b), 324 & 337-H(2)---Qatl-i-amd, attempt to commit qatl-i-amd, act endangering human life or the personal safety---Appreciation of evidence---Improvement in the statement of witnesses---Effect---Accused was charged for committing murder of the deceased and also injuring the lady by firing---Except the complainant eye-witnesses had greatly improved their evidence from what they had stated in their statements under S.161, Cr.P.C.---Said fact had created dent in the prosecution eye witness evidence as those could be seen as dishonest improvements.

Muhammed Mansha v. State 2018 SCMR 772 rel.

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

----S. 154---Lodging of FIR---Promptness---Scope---First Information Report must be registered promptly; the sooner it was lodged after the incident the more reliability it had---Delay of 2/3 hours in lodging an FIR could be fatal to the prosecution case in some cases---Delay in lodging FIR, gave time to the complainant's side to concoct a false story in order to fix another or to ensure that they would not be entrapped in the offence.

Zeeshan alias Shani v. State 2012 SCMR 428 rel.

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

----Ss. 302(b), 324 & 337-H(2)---Qatl-i-amd, attempt to commit qatl-i-amd, act endangering human life or the personal safety---Appreciation of evidence---Delay of about twenty hours in lodging the FIR---Effect---Incident took place at around 10.15 pm on 26-01-2012 and the FIR was lodged at 17.30 on 27.01.2012---Complainant had explained that delay by the fact that he had to immediately take the injured to hospital who was seriously injured---Initially they went to Rural Health Center and then to other hospital---Complainant returned to his village for the funeral service of the deceased and then he registered the FIR---Ordinarily such explanation might be sufficient to explain the delay; in the present case, however, there were certain significant aspects that stood out---First was that immediately after the incident the complainant went with 3 or 4 others including two other eye-witnesses in this case to police station with the body of the deceased and injured, who they thought was dead---According to the eye witnesses, they knew the accused as he was a co-villager and as such they were able to identify him---However, when they reached the police station with two bodies, not any of the three eye witnesses lodged the FIR against the accused---Instead a Roznamcha entry was made concerning the incident at 23.40 approximately but not naming the accused and stating that complainant would get registered report in detail later on---Complainant and other eye witnesses knew who the culprit was and any other of the eye witnesses present could have taken the injured to hospital or lodged the FIR as they were also eye witnesses---As to why they did not lodged the FIR there and then against the accused had not been adequately explained.

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

----Ss. 302(b), 324 & 337-H(2)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, act endangering human life or the personal safety---Appreciation of evidence---Benefit of doubt---Withholding of best evidence---Effect---Prosecution case was that the accused committed murder of the deceased and also injured a lady by firing---In the present case, a lady was injured at the scene and she could give best evidence; she was given up by the prosecution---Presumption would be that injured would not have supported the prosecution case.

Muhammed Rafique v. State 2010 SCMR 385 rel.

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

----Ss. 302(b), 324 & 337-H(2)---Qatl-i-amd, attempt to commit qatl-i-amd, act endangering human life or the personal safety---Appreciation of evidence---Motive was not proved---Effect--- Prosecution case was that the accused committed murder of the deceased and also injured a lady by firing---Motive was that the deceased had refused to give the accused lift in his vehicle---Alleged motive did not seem credible as it was not natural human conduct to shoot someone because they refused to give a lift especially when accused was riding on his own motor bike---Likewise it did not appeal to reason as to how a person riding a motor bike could force a large wagon to stop---Said aspects of the prosecution case did not appeal to reason, logic, commonsense or natural human conduct thus not reliable.

Mst. Rukhsana Begum v. Sajjid 2017 SCMR 596 rel.

Suleman Badshah for Appellant.

Muhammad Iqbal Awan, Deputy Prosecutor General for the State.

2020 M L D 964

[Sindh]

Before Salahuddin Panhwar, J

BASHIR AHMED BADAL---Applicant

Versus

The STATE and 2 others---Respondents

Criminal Revision Application No. 213 of 2018, decided on 16th February, 2019.

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

----S. 345---Penal Code (XLV of 1860), Ss. 406 & 420---Compounding of offence---Criminal breach of trust, cheating and dishonestly inducing delivery of property---Scope---Accused who was convicted under Ss. 406 & 420, P.P.C., filed compromise application---Contention of accused was that offence under S. 406, P.P.C. was not made out from the facts of the case---Validity---Allegation against accused was that he and co-accused cheated the complainant on the assurance of arranging visa for umrah, which allegation fell within the meaning of cheating, punishable under S.420, P.P.C.---Punishment under S. 406, P.P.C. was not tenable and the same was set-aside by the High Court---Parties had affirmed the contents of compromise application and had further affirmed that the same was voluntary---High Court accepted the compromise application and acquitted the accused---Criminal revision application was disposed of accordingly.

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

----S. 406---Criminal breach of trust---Ingredients---Scope---Offence of criminal breach of trust would not constitute unless ingredients thereof including "voluntary entrustment of property "and" its subsequent misappropriation" are not co-existing.

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

----Ss. 345, 435 & 439---Compounding of offence---Revisional jurisdiction---Scope---High Court can, while exercising jurisdiction, competently entertain application for compounding the offence.

Khawaja Muhammad Azeem and Ms. Sadia Khatoon for Applicant.

2020 M L D 977

[Sindh]

Before Abdul Maalik Gaddi, J

ABDUL GHAFFAR alias IQBAL---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 260 of 2019, decided on 23rd April, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss. 6/9(c)---Possession and trafficking of narcotics---Bail, grant of---Further inquiry---Recovery of 1010 grams of "Charas"---Record showed that alleged incident took place in a populated area but prosecution had not bothered to cite any independent person from the locality to witness the event---Chemical report was not available in the file to ascertain whether the material allegedly recovered from the accused was in fact "Charas" or otherwise---All prosecution witnesses were police officials, therefore, there was no possibility of tampering the evidence at the hands of accused---Accused was behind the bars since his arrest; trial had not commenced---Accused had made out a case for grant of bail---Bail was allowed, in circumstance.

Allah Bukhsh Narejo for Applicant.

Zahoor Shah, D.P.G. along with A.S.I. Saleem Akhtar, C.R.O. Branch for the State.

2020 M L D 980

[Sindh]

Before Naimatullah Phulpoto and Mohammad Karim Khan Agha, JJ

WALI MUHAMMAD---Appellant

Versus

The STATE---Respondent

Spl. Criminal Anti-Terrorism Appeal No. 3 of 2013 and Confirmation Case No.10 of 2016, decided on 5th April, 2019.

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

----Ss. 365(A), 506(2) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping for ransom, criminal intimidation, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Chance witness---Prosecution case was that the accused along with his co-accused in furtherance of common intention kidnapped the nephew of complainant and his driver for ransom---Ocular account of the incident had been furnished by three witnesses including two abductees---Said witnesses corroborated each other as to the date, time and manner of the kidnapping of two abductees---Eyewitness was related to abductee/nephew of complainant and was also a chance witness whose presence at the time of incident had not been adequately explained especially as rather surprisingly the kidnappers left him alone and did not even take his motor bike key let alone disable his motor bike so that he could not chase the kidnappers or quickly inform the police about the kidnapping, nor did they demand his mobile phone which conduct on the part of the kidnappers did not particularly appeal to reason---Instead of following the jeep or reporting the matter immediately to the police, said witness instead went to the house of uncle of abductee and told him about the incident---No weight could be attached to the evidence of said witness---Evidence of the abductees concerning their kidnapping was corroborated by the fact that human blood was discovered in the recovered jeep and that abductee had been hit by the rifle butt on his face which led to bleeding---Said circumstances proved that the abductees were kidnapped at the time, date and location as alleged---Abductees stated that there were five kidnappers who were carrying Kalashnikovs, whose faces were opened---Possibility existed that both the abductees could have seen and later recognized the accused---Admittedly, abductees did not know the accused before the incident---Abductees did not know how far the accused was from the abductees at the time of incident and with other kidnappers---Question arose as to how long the abductees had seen the accused at the time of the abduction and admittedly, the abductees were kept blind folded throughout the rest of their duration in captivity before they were released---After their release, neither of the abductees in their statement recorded under S.161, Cr.P.C. had given any features or description of the accused---Manner in which the police came to know the name and identity of the accused seemed to be rather doubtful---Evidence of one of the abductees showed that he, by chance, had seen and recognized the accused at a petrol pump and then followed him home and found out his name and then quite incredibly did not go straight to the police to tell them about the identification of the person who had abducted him but instead went home and did nothing---Said aspect of the case did not ring true---Police failed to take the statement of any person near the home of the accused where allegedly the abductees were detained for many days and who might have seen some unusual activity let alone the people who were seeing in the accused's otaque at the time when the Investigating Officer inspected the same---Surprisingly, the abductees recognized the room when according to them they had been blind folded the whole time that they were in captivity---Circumstances established that the prosecution had not proved its case beyond a reasonable doubt--- Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

Muhammad Fazal v. The State 1983 SCMR 1; Asif Hussain v. The State 2005 MLD 1911; Rahat Ali v. The State 2001 PCr.LJ 98; Hatim Ali Sheikh v. The State PLD 1994 Kar. 414; Umar Farooq v. The State 1993 PCr.LJ 709; Kamil Zaman v. The State 1999 PCr.LJ 1546; Muhammad Riaz v. The State 1988 MLD 38; Abdul Sattar v. The State PLD 1976 SC 404; Muhammad Tazeem and others v. The State and others 2000 YLR 1542; Ghulam Abbas v. The State 2002 YLR 1759; Sher Dil alias Sher Gul and another v. The State 1973 PCr.LJ 802; Ghulam Hussain Soomro v. The State PLD 2007 SC 71; Zakir Khan and others v. The State 1995 SCMR 1793; Muhammad Akbar v. The State 1998 SCMR 2538; Rashid Aslam and another v. The State 2017 YLR 2052; Khan Ali v. The State 1999 MLD 2477 and Ghulam Waris v. The State 2003 YLR 2273 ref.

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

----Ss. 365(A), 506(2) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Qanun-e-Shahadat (10 of 1984), Art. 22---Kidnapping for ransom, criminal intimidation, common intention, act of terrorism---Appreciation of evidence---Test identification parade---Scope---In the present case, the test identification parade took place during the period when the accused was not remanded in judicial custody but was in police custody---Police, in circumstances, had every chance of showing the accused to the abductees prior to the identification parade as indeed was one of the defence put forwarded by the accused in his statement recorded under S. 342, Cr.P.C.---Identification parade in the present case was not conducted in accordance with law---Record transpired that Judicial Magistrate did not ask as to how long the accused had been in police custody---Judicial Magistrate did not note any injury on the abductees---CNIC Numbers, occupations and addresses of the dummies were not taken by the Judicial Magistrate---Judicial Magistrate even noted in his report that the accused had claimed that he had been shown to the prosecution witnesses who identified him which was consistent with his defence case---Identification parade of the accused, in circumstances, could not be safely relied upon to prove that he was one of the kidnappers---Even the identification of the accused before the Trial Court was not safe to maintain his conviction---Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

Muhammed Yaqoob v. State 1989 PCr.LJ 2227 rel.

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

----Ss. 365(A), 506(2) & 34---Anti-Terrorism Act (XXVII of 1997), S.7(e)---Criminal Procedure Code (V of 1898), S. 342---Kidnapping for ransom, criminal intimidation, common intention, act of terrorism---Appreciation of evidence---Specific plea taken by accused in his statement---Effect---Accused took specific plea in his defence that he was in unlawful confinement of the police from 07.02.2012 and during the time when he was allegedly arrested by the police whilst riding in a Rickshaw---Accused consistently put his case to the relevant prosecution witnesses during cross examination---Defence of accused as set out in his statement recorded under S. 342, Cr.P.C., was supported by the evidence of his two sons who had also placed on record---Applications moved to the High Court and Sessions Court as to the wrongful confinement of the accused which the prosecution had not been able to refute---Prosecution case was that the accused was arrested by Investigating Officer whilst riding in a Rickshaw along with 3-4 others on the basis of spy information---However, no statement of any of the other 3-4 persons who were riding in the Rickshaw at the time when the accused was arrested from the Rickshaw had their statement taken nor were they made mashirs or witnesses---Thus, the prosecution deprived itself of the best evidence to show that the accused was in the Rickshaw as opposed to police custody as alleged by him at the time of his arrest---Notably the mashirs were related to the complainant and had been brought along with the arresting Investigating Officer---No person from the local area was made mashir who could have been collected either en route to the place of arrest or at the place of arrest--- Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

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

----Ss. 365(A), 506(2) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7(e)---Kidnapping for ransom, criminal intimidation, common intention, act of terrorism---Appreciation of evidence---Recovery of weapon of offence on the pointation of accused along with photos and cassettes---Reliance---Scope--- Prosecution case was that the accused along with his co-accused in furtherance of common intention kidnapped the nephew of complainant and his driver for ransom---Record showed that 222 rifle was allegedly found on the pointation of the accused along with 33 photos and a number of cassettes---Said recoveries were inconsequential as no roznamcha entry was made before the accused left the police station along with the police stating where they were going and what they intended to recover---Said recoveries were not foisted on the accused by the police could not be ruled out---In any event, the accused had shown Kalashnikovs and not a 222 rifle---None of the photos or cassettes ever reached the complainant side---Appeal was allowed and accused was acquitted by setting aside conviction and sentences recorded by the Trial Court.

Hassan Feroz for Appellant.

Farman Ali Kanasro, Additional Prosecutor General Sindh for the State.

2020 M L D 995

[Sindh]

Before Salahuddin Panhwar, J

SHABBIR AHMED and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 410 of 2017, decided on 20th May, 2019.

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

----Ss. 365-B, 376(ii) & 34---Kidnapping, abducting or inducing woman to compel for marriage, rape, common intention---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Effect---Prosecution case was that the accused persons in furtherance of common intention kidnapped the daughter of complainant and raped her---First Information Report showed the allegation of committing rape against two persons and the place of commission of offence was specified as bushes in an open plot---However, during course of trial, the prosecution witnesses, including the victim, changed the numbers of accused persons and the place of incident---Investigating Officer deposed that the victim in her statement recorded under S. 161, Cr.P.C., disclosed that 8/9 culprits committed gang rape with her and she could identify them---Victim of the incident remained changing her stances, which would be fatal for prosecution because both were integral parts of the offence---Victim had lost her credibility and was not worth believing for holding conviction on a capital charge---Victim had admitted that accused/appellant and acquitted accused were already known to her mother as they were residents of her locality---Mother of the victim/witness stated that accused/appellants were previously known/seen by her children so also the victim---Victim deposed that all the four accused persons were properly seen by her and she disclosed their names---After committing rape accused persons threatened her not to disclose about incident to any one and left her---Record showed that the victim knew the culprits who were residents of her mohalla, she herself named the culprits, got prepared sketches of culprits , pointed out place of incident---Investigating Officer arrested the accused with help of sketches then there had never been any need of identification parade---Circumstances established that the prosecution had not succeeded in proving the charge against the accused/appellant beyond reasonable doubt--- Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

2000 PCr.LJ 333; 2017 SCMR 1189; 1998 PCr.LJ 581; PLD 2007 Pesh. 83; 2016 SCMR 1554; PLD 2019 SC 527; 2011 PCr.LJ 1443; 2012 YLR 847; PLD 2010 SC 47 and 2014 PCr.LJ 1280 ref.

Haider Ali and others v. State 2016 SCMR 1554; Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 and Javed Khan v. State 2017 SCMR 524 rel.

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

----Ss. 365-B, 376(ii) & 34---Kidnapping, abducting or inducing woman to compel for marriage, rape, common intention---Appreciation of evidence---Medical evidence---Scope---Positive medical examination report of victim could only establish commission of offence, but such report alone could not help the prosecution to identify the culprits.

Ghulam Qadir v. State 2008 SCMR 1221 rel.

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

----Ss. 365-B, 376(ii) & 34---Kidnapping, abducting or inducing woman to compel for marriage, rape, common intention---Appreciation of evidence---Medical evidence---Scope---Positive report of commission of zina as well as detection of human semen were not the conclusive proof that offence had been committed by specific accused person rather DNA---Requirement of DNA was mandatory is such cases---In the present case, DNA was not conducted rather articles, sent for such purpose, were returned with the direction to resubmit the case by providing original high vaginal swab and reference blood sample of victim and accused along with relevant material---However, record showed that prosecution never bothered to make compliance of said direction rather opted not to get DNA done---Positive report of availability of human sperm but matching thereof and positive DNA report were the conclusive proof of commission of zina by specific accused---Appeal was allowed and accused were acquitted by setting aside conviction and sentences recorded by the Trial Court.

Haider Ali and others v. State 2016 SCMR 1554 and Salman Akram Raja v. Government of Punjab 2013 SCMR 203 rel.

Wazeer Hussain Khoso assisted by Muhammad Siddiq for Appellants.

Siraj Ali Khan Chandio, Additional P.G. and Faheem Hussain Panhwar, Assistant P.G. for the State.

Complainant present on date of hearing.

2020 M L D 1013

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Fahim Ahmed Siddiqui, JJ

PIR BUX---Appellant

Versus

KHAN MUHAMMAD and 4 others---Respondents

Criminal Acquittal Appeal No. D-33 of 2017, decided on 14th December, 2018.

Penal Code (XLV of 1860)---

----S. 302---Criminal Procedure Code (V of 1898), S. 417---Qatl-i-amd---Appeal against acquittal---Appreciation of evidence---Motive not proved---Chance witness--- Night-time occurrence---Contradiction in medical and ocular evidence---Scope---Appellant sought reversal of judgment passed by Trial Court whereby respondents were acquitted---Complainant could not establish motive as alleged, however, he turned to his heels during cross-examination in respect of the motive---Eye-witnesses were residents of far-off places and during their cross-examination, they were unable to reason out their availability at the place of incident at night-time---Eye-witnesses has acted in an unnatural manner by leaving the deceased at the place of incident and not even trying to shift him to the hospital---Medical Officer though had verified the injury sustained by the deceased to be firearm injury but had opined that the same being pea shaped could not have been caused from the front side---Impugned judgment did not suffer from mis-reading or non-reading of available evidence, besides the appreciation of evidence by the trial court was proper and as per the settled norms of appreciation---Appeal against acquittal was dismissed.

Tarique Ali Mirjat for Appellant.

Muhammad Hashim Leghari for Private Respondents.

Shahzado Saleem Nahiuoon, D.P.G., Sindh for the State.

2020 M L D 1021

[Sindh]

Before Irfan Saadat Khan and Fahim Ahmed Siddiqui, JJ

Syed SAMI AHMAD and another---Appellants

Versus

PAKISTAN STEEL MILLS CORPORATION LIMITED---Respondent

High Court Appeal No. 314 of 2005, decided on 10th January, 2020.

Fatal Accidents Act (XIII of 1855)---

----S. 1---Death by fatal accident---Proper precautions on facility---Recovery of compensation---Negligence of company---Proof---Plaintiffs were legal heirs of deceased who died of a fatal accident while he was working in defendant corporation---Contention of plaintiffs was that death was caused due to negligence of employer company---Validity---Area where incident occurred was categorically marked as hazardous zone---Entrance required due care and caution and same was lacking on part of deceased---Boiler was completely shut down due to technical fault and was let to cooldown and all its windows/main holes were opened---Boiler was clearly marked for inspection on 04-06-1984 whereas incident took place on 03-06-1984---Clear instructions were given to staff not to enter boiler until and unless it was declared as free zone---Such instructions were known to every staff member including the Soviet engineer and deceased---High Court declined to interfere in judgment passed by Single Judge of High Court as no negligence was found on part of defendant company---Intra-court appeal was dismissed in circumstances.

Messrs Hayat Services (Pakistan) Ltd. v. Kandan 1989 CLC 2153; Mst. Kamina and another v. Al-Amin Goods Transport Agency through LRs and 2 others 1992 SCMR 25; Pakistan Steel Mills Corporation Limited and another v. Malik Abdul Habib and another 1993 SCMR 848 and Mst. Bashiran and others v. Pakistan through General Manager, P.W.R. and others PLD 1976 SC 748 distinguished.

Shahenshah Husain for Appellants.

Sibtain Mahmud for Respondent.

2020 M L D 1028

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Mohammad Karim Khan Agha, JJ

MUHAMMAD YAQOOB---Petitioner

Versus

IIIrd ADDITIONAL SESSIONS JUDGE AND EX-OFFICIO JUSTICE OF PEACE, HYDERABAD and 3 others---Respondents

Constitution Petition No. D-2587 of 2016, decided on 10th October, 2018.

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

----Ss. 22-A & 154---Ex-officio Justice of Peace, powers of---Registration of FIR---Dispute of civil nature---Scope---Petitioner assailed order of Ex-officio Justice of Peace whereby he had dismissed the application of petitioner for registration of FIR by observing that the issue involved in the matter appeared to be of civil nature---Allegation of petitioner was that accused persons along with 10/12 unknown persons with open faces duly armed with deadly weapons came to the petitioner when he along with others was erecting boundary wall of society and made aerial firing, demolished the partition wall and went away by threatening the petitioner of dire consequences---Validity---Act of proposed accused and the allegations in the case were serious in nature, hence, required inquiry/investigation---High Court set aside the order passed by Ex-officio Justice of Peace and directed the petitioner to appear before the concerned SHO for recording his statement under S.154, Cr.P.C.---Constitutional petition was disposed of, accordingly.

Muhammad Bashir v. Station House Officer, Okara Cantt: and others PLD 2007 SC 539 rel.

(b) Criminal trial---

----Criminal and civil proceedings---Scope---Whenever criminal offence in a dispute of civil nature is reported, same was to be decided side-by-side.

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

----Ss. 22-A & 154---Ex-officio Justice of Peace, powers of---Registration of FIR---Scope---Police, under S.154, Cr.P.C. is legally bound to register a criminal case whenever commission of a cognizable offence is reported to it and if the police is not ready to register a case regarding cognizable offence, the Ex-officio Justice of Peace can issue appropriate directions under S. 22-A(6)(i), Cr.P.C. to the concerned police authorities to register a case even without seeking report from the SHO concerned to know the reasons as to why the local police have not registered a criminal case in respect of the complainant's allegation.

Sherin Zada v. State 2015 MLD 286 fol.

Sher Muhammad Laghari for Petitioner.

Muhammad Ismail Bhutto, Additional Advocate General along with SIP Najamdin Nizamani on behalf of SSP Hyderabad and ASI M. Arshad on behalf of SHO P.S. Site Hyderabad for Respondents.

Masood Rasool Babar for proposed accused.

2020 M L D 1036

[Sindh]

Before Abdul Maalik Gaddi, J

Mst. NAILA YOUNUS---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 778 of 2019, decided on 8th August, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/34---Qatl-i-amd, common intention---Bail, refusal of---Accused, a woman---Delay in lodging of FIR, when immaterial---Allegation against the applicant/ accused was that she killed her husband in collusion with unknown accused persons---Delay of about one day in lodging of FIR---Accused contended that she was falsely implicated in the case---Accused lady was behind the bars for the last two years and two months but the trial was not concluded---Delay in lodging of FIR was immaterial when same stood reasonably explained and prosecution had not derived any undue advantage of it---Delay in lodging of FIR was material only when there was doubt regarding identity of culprits or there existed enmity between the parties---Record showed that both said ingredients were missing in the present case---Women accused were not entitled for grant of bail as a right in every case---Courts generally took lenient view while dealing with bail applications of women and exercised discretion in their favour in suitable case---Accused was nominated in the FIR with specific allegation of committing murder of her husband---Factum of being first offender by itself was also not sufficient for allowing bail to accused---Two prosecution witnesses had been examined----Case had already been transferred to model court for expeditious disposal---Bail was declined to accused, in circumstances.

Mehmood-ul-Hassan for Applicant.

Amanullah Kakar for the Complainant.

Ms. Rahat Ahsan, Additional Prosecutor General, Sindh for the State.

2020 M L D 1057

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Zulfiqar Ali Sangi, JJ

Messrs FAHAD CONSTRUCTION COMPANY through Managing Partner---Petitioner

Versus

PROVINCE OF SINDH through Secretary Revenue Department and others---Respondents

Constitutional Petition No. D-240 of 2005 and M.As. Nos.9156 of 2013, 2086 of 2011, 785 of 2005, 2411 of 2008, 604 of 2009 and 103 of 2016, decided on 3rd October, 2019.

Sindh Land Revenue Act (XVII of 1967)---

----S. 164 (2)---Evacuee Property and Displaced Persons Laws (Repeal) Act (XV of 1975), S. 2---Displaced Persons (Land Settlement) Act (XLVII of 1958), S. 4--- Fraudulent allotment---Cancellation of---Notified Officer, suo motu powers of---Scope---Petitioner claimed ownership of land in question on the basis of agreement to sell with allottee---Authorities cancelled allotment of land in question in favour of allottee in exercise of suo motu powers---Validity---Claim of petitioner over land was based on sale agreements which did not confer any title---Title and possession of land of predecessor-of-interest of petitioner were neither clear nor supported by any reliable document---Petitioner opted not to challenge original order of authorities or order on appeal and there was skepticism on locus standi of petitioner---Once documents of transfer came under clouds or transfer seemed to be obtained through fraud, misrepresentation, manoeuvring, manipulation of facts or in connivance with officials of Settlement Authorities, same always remained open to scrutiny by relevant forums and on their failure, was subject to judicial review by courts of law---Blanket protection was not extended to orders of transfers, etc., made in excess of power or without jurisdiction or in violation of law---If it was seen that settlement authorities transferred a property otherwise than in due course of law or in ignorance of relevant facts and laws or in excess of their authority without determining its availability for allotment, their actions could be set at naught by competent forums---Commissioner had assumed jurisdiction to determine status of subject land and in such a backdrop with a realization that it was already acquired and earmarked for development of housing scheme and was not available in compensation pool for allotment to any displaced person including predecessor-in-interest of petitioner; assumption of jurisdiction by Commissioner under S.164 (2) of Sindh Land Revenue Act, 1967, did not suffer from any illegality---Land in question neither formed part of compensation pool constituted under S.4(2) of Displaced Persons (Land Settlement) Act, 1958 nor it was available for transfer under provisions of Displaced Persons (Land Settlement) Act, 1958---Property being not available in compensation pool, its transfer in favor of claimant in year 1965, was not legal---High Court declined to interfere in orders passed by the Commissioner---Constitutional petition was dismissed, in circumstances.

PLD 1961 W.P. Kar. 335; PLD 1978 Kar. 387; PLD 1981 Kar. 143; 2002 SCMR 829; 2000 SCMR 1172; PLD 2003 Kar. 314; 2006 SCMR 1287; 2010 CLC 1100; 2015 SCMR 1721; PLD 2017 SC 121; 2002 SCMR 1470; PLD 1971 SC 550; 1983 CLC 248; 1996 MLD 1409; 1991 SCMR 398; 1994 SCMR 744; 1994 CLC 2413 and SBLR 2005 Sindh 58 ref.

PLD 2004 SC 801 and Dooley Hassan and 2 others v. Province of Sindh through D.C. Hyderabad and 2 others 1994 SCMR 744 rel.

Jagdish R. Mullani for Petitioner.

Jhamat Jethanad for Respondent No.3.

Imran Qureshi for Respondent No.11.

Allah Bachayo Soomro, Additional A.G. along with Faheem Zuhaib Mangi, Mukhtiarkar Taluka Latifabad.

2020 M L D 1073

[Sindh]

Before Aqeel Ahmed Abbasi and Aziz-ur-Rehman, JJ

KARACHI GYMKHANA and others---Appellants

Versus

USMAN AHMED ANSARI and others---Respondents

High Court Appeals Nos. 310 to 315 of 2016, decided on 9th July, 2018.

(a) Rules and Byelaws of Karachi Gymkhana---

----Rr. 11, 13, 17 & 30---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1, 2 & 4---Intra-Court appeal---Suit for declaration and injunction---Termination of membership of Club---Criminal allegation---Proof---Fishing and roving inquiry---Suit was filed by plaintiffs for termination of their membership by defendant which was a private club on allegations of corruption and corrupt practices in certain projects---Single Judge of High Court allowed injunction application of plaintiffs and suspended operation of termination letter---Validity---Plaintiffs whose memberships were terminated were never issued any specific show cause notices requiring them to explain their position with regard to allegations of corruption and corrupt practices in respect of projects---No proceedings for termination of membership was initiated against plaintiffs in terms of Karachi Gymkhana Rules/Bye-laws---Defendant had initiated investigation against plaintiffs by constituting an investigation committee with task to conduct a fishing and roving inquiry against plaintiffs on basis of allegations of corruption and practices in respect of two construction of lodges and driveway projects of Karachi Gymkhana---No provision of Rules and Byelaws of Karachi Gymkhana under which such inquiry or investigation could be authorized on charges of corruption was mentioned---Membership of a member of Karachi Gymkhana could only be suspended or terminated in terms of R. 30 of Rules and Byelaws of Karachi Gymkhana---Plaintiffs were never issued any show cause in terms of R. 30 of Rules and Byelaws of Karachi Gymkhana for misconduct---Proceedings against plaintiffs were in violation of principles of natural justice, Rules and Byelaws of Karachi Gymkhana and could not be considered free from doubt and conclusive in nature unless proper evidence was recorded in such regard---Suit filed by plaintiffs against their termination was still pending before Single Judge of High Court to be decided in accordance with law and after recording evidence---Plaintiffs appeared to have made out a prima facie case before Single Judge of High Court seeking injunctive relief---Division Bench of High Court declined to interfere in order passed by Single Judge of High Court as same was passed exercising discretion vested in him---Single Judge of High Court took into consideration necessary ingredients required for grant of injunctive relief, i.e., prima facie case, balance of inconvenience and irreparable loss and injury---Order passed by Single Judge of High Court prima facie did not suffer from factual error or legal infirmity---Intra-court appeal was dismissed in circumstances.

The Deputy Inspector-General of Police, Lahore and others v. Anis-ur-Rehman Khan PLD 1985 SC 134; Abdul Hanan v. Safdar Ali and others 2011 SCMR 203; United Bank Limited and others v. Ahsan Akhtar and others 1998 SCMR 68; Muhammad Mustafa Kamal v. Federation of Pakistan and others 2011 PLC (C.S.) 162 and Muhammad Saad and another v. Amna and 27 others 2015 YLR 1 ref.

(b) Karachi Gymkhana Rules/Byelaws---

----R. 30---Misconduct of Member of the Club---Corruption and corrupt practices---Scope---Term corruption and corrupt practices is not defined in Rules and Byelaws of Karachi Gymkhana---Allegations of corruption and corrupt practices are criminal in nature which includes an element of mens rea which prima facie, can be established by competent forum or court of law after recording evidence---Without establishing charges against any member of corruption and corrupt practices through a competent forum or court of law regarding his guilt, membership of such member cannot be terminated without providing proper opportunity of being heard.

Khawaja Shamsul Islam for Appellants (in all High Court Appeals).

Dr. Farogh Naseem along with Munawar Hussain, Ms. Pooja Kalapna and Ahmed Hussain for Respondent No.1 (in High Court Appeal No.312 of 2016).

Raja Safeer Anjum for Respondent No.1 (in High Court Appeal No.310 of 2016).

Syed Khurram Nizam along with Hasan K. Hashmi and Mobeen Lakho for Respondent No.1 (in High Court Appeal No.313 of 2016).

Asim Mansoor Khan for Respondent No.1 (in High Court Appeal No.314 of 2016).

Azhar Ahmed Shah for Respondent No.1 (in High Court Appeal No.311 of 2016).

Suhail Muzaffar for Respondent No.1 (in High Court Appeal No.315 of 2016).

2020 M L D 1113

[Sindh]

Before Mohammad Iqbal Kalhoro and Abdul Mobeen Lakho, JJ

NOMAN KHAN---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 339 and 340 of 2018, decided on 24th December, 2019.

(a) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Sindh Arms Act (V of 2013), S. 23(i)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to cause explosion or making or keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, unlicensed possession of arms, act of terrorism---Appreciation of evidence---Benefit of doubt---Non-production of case property in court and delay of three days in sending case property to Forensic Laboratory---Effect---Prosecution case was that weapons and bombs were recovered from the store room of the park of which accused was the manager---No one was found present at the time of raid when the recovery was effected---Prosecution had not contested that the park was in possession of the Metropolitan Corporation for the last nine months---None of the prosecution witnesses had deposed that the appellant/accused had visited the premises after the Metropolitan Corporation had takenover the possession---No one from the Metropolitan Corporation had joined the investigation---Investigating Officer had only produced the copy of FIR which showed that the alleged property, lying in malkhana, was burnt---No report of subsequent investigation about destruction of articles was placed on record---Recovery of articles not produced in the Trial Court had to be looked at with extra care and caution---No evidence was produced to show as to where the case property was lying in the meanwhile--- Benefit of even a single circumstance leading to a reasonable doubt had to be extended to the accused---Appeals against conviction were allowed, in circumstances.

(b) Criminal trial---

----Benefit of doubt---Scope---Prosecution has to prove its case against the accused beyond shadow of doubt and if there is any doubt in the prosecution case, the benefit of such doubt must go to the accused as of right as opposed to concession.

Tariq Pervez v. The State 1995 SCMR 1345 and Faheem Ahmed Farooqui v. The State 2008 SCMR 1572 rel.

Muhammad Tamaz Khan for Appellant.

Sajid Mehboob Shaikh, Special Prosecutor Rangers for the State/ Complainant.

2020 M L D 1127

[Sindh (Larkana Bench)]

Before Khadim Hussain M. Shaikh, J

Haji GHANO KHAN and 5 others---Petitioners

Versus

Dr. BHAGWANDAS and 24 others---Respondents

C. P. No. S-985 of 2017, decided on 12th December, 2019.

Civil Procedure Code (V of 1908)---

----O. XVI, R. 1 (2) (3)---Suit for declaration---Summoning of a witness---Scope---Plaintiff filed application for summoning of a witness to produce document which was dismissed by the Trial Court but Appellate Court accepted the same---Validity---Production of public record was essential for the Trial Court to arrive at just and right conclusion---No prejudice would cause to the defendant in summoning the witness to produce document in the Court---Technicalities were to be avoided for advancement of cause of justice---Defendant had not come to the Court with clean hands---Relief of writ jurisdiction being discretionary in nature, same could not be granted in favour of a person who had come to the Court with unclean hands---Impugned order passed by the Court below did not suffer from any illegality or jurisdictional defect---Constitutional petition was dismissed, in circumstances.

Inayatullah Morio for Petitioners.

Respondent No.1 in person.

2020 M L D 1138

[Sindh]

Before Salahuddin Panhwar, J

MANZOOR ALI and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 163 of 2016, decided on 1st October, 2018.

(a) Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Illegal dispossession---Appreciation of evidence---Complainant had alleged that he was the real, legal and lawful owner of the suit property being purchaser of the same---Complaint against the appellants was allowed by the Trial Court and appellants were convicted---Validity---Record showed that complainant had allowed the accused-appellants to reside in the property---Such circumstances were sufficient to conclude that there was no illegal or wrongful entrance into or upon the disputed property---Offence under S.3(1) of the Illegal Dispossession Act, 2005 was not made out in circumstances---No conviction could, therefore, sustain under S.3(2) of the Act---Record transpired that complainant had stated that due to fear of life he along with his family was compelled to leave the house in question---Prima facie, the complainant never successfully established his forcible or wrongful dispossession which, otherwise, was necessary ingredient to make out offence within the meaning of S.3(3) of the Act---Property in question, was situated in a populated area where forcible dispossession of complainant had happened on gun point---Complainant did not examine any independent person from the mohalla so as to prove his claimed forcible dispossession on a particular date and time---Circumstances established that the complainant had failed in proving the offence within the meaning of S.3(3) of the Act---Appeal was allowed and accused were acquitted by setting aside the conviction and sentence recorded by the Trial Court, in circumstances.

(b) Criminal trial---

----Benefit of doubt---Principle---Any doubt in proving the ingredients of offence would go in favour of the accused even in a complaint filed under Illegal Dispossession Act, 2005---Complainant was duty bound to prove complained offence beyond shadow of doubt.

Appellants in person.

Abrar Ali Khichi, Deputy Prosecutor General for Respondent No.1 and Raza Muhammad for Respondent No.2.

Date of hearing: 4th May, 2018.

---This appeal assails judgment dated 13.04.2016 passed by the court below in Direct Complaint No.55/2012 filed by respondent No.2 under sections 3 and 4 of Illegal Dispossessions Act, 2005, whereby appellants were convicted and sentenced for five years' R.I. with fine of Rs.100,000/- each.

1. Brief facts of the case are that a direct complaint was filed by complainant (respondent No.2 herein) stating that he is the real, legal and lawful owner of Property bearing House No.1267, Sector 12-E, Saeedabad, Baldia Town, Karachi, measuring 80 square yards, having purchased the same from its previous owner Muhammad Afzal vide sale Agreement dated 12.03.1998 and thereafter got installed Electricity, Sui-gas and phone connections in his name in the year 2000; that he rented out the said house to tenant namely Gulzar Khan son of Imdad Ali Khan vide Tenancy agreement dated 26.01.2001 after the same was also got vacated after expiry of tenancy period and in this connection a case was proceeded in the competent court of law; that accused (appellants herein) are respectively his father and brother to whom the complainant had allowed to reside in his aforesaid house; that these accused in collusion of some area people who having good approaches in the area, with a preplan scheme, on 19.12.2011 threatened the complainant and beaten him and subsequently forcibly dispossessed/ejected the complainant and his family from the house in question on gun point and further threatened him to leave the house otherwise they will kill the complainant and his family; due to fear of life the complainant along with his family was compelled to leave the house in question; that in the month of April 2012 the accused No.2 (Mushtaque) with the connivance of accused Nos.1 and 3 (appellants herein) got prepared forged documents pertaining to the said property and transferred the Utility bills in their name; that when this fact came into the knowledge of the complainant, he got published a public notice in Daily Jang dated 09.05.2012; that subsequently he moved an application dated 25.06.2012 to SHO PS Saeedabad for taking legal action and lodging the FIR against the culprits, but no action was taken, as such the complainant sent said application through TCS and thereafter filed Petition under section 22-A, Cr.P.C. bearing Cr. Misc. Application No.739/2012 in the Court of District and Sessions Judge (West) for lodging the FIR, complaint was allowed and FIR was lodged FIR No.359/2012 against the accused persons; that on the basis of said FIR the concerned departments re-named the utility bills in the name of complainant; that accused persons jointly and severally not only illegally occupied the aforesaid property of the complainant but have also committed forgery and perjury by getting the utility bills in the name of accused No.2 and are advancing threats of dire consequences to complainant and his family that if the complainant taken any legal action against them, then they will kill the complainant and his family; thus he prayed for :-

1) To take cognizance of the offence committed by accused under section 3(1)(2) of the Illegal Dispossession Act, 2005, and prosecute/punish the accused in accordance with law.

2) To issue directions to the concerned Police authority to eject the accused from the plot in question and thereby put the complainant/owner in peaceful physical possession of the Property bearing viz. House No.1267, Sector 12-E, Saeedabad, Baldia Town, Karachi, measuring 80 square yards, being lawful owner of the same.

3) To compensate the complainant in terms of Section 544, Cr.P.C. being victim of the offence caused the hand of the accused.

1. On filing such complaint, inquiry report dated 27.02.2013 was submitted by SHO Police Station Saeedabad; by order dated 05.09.2013 complaint was admitted for trial and BW's were issued in sum of Rs.30,000/- each against all accused persons, who appeared and joined the trial; charge was framed against them to which they pleaded not guilty.

2. Appellant No.1 filed counter affidavit to direct complaint denying the allegations and stated that the said plot was sold by Mohammad Afzal to Mst. Naseem Begum and purchased through complainant with mutual consent of Shehzada Muhammad Mushtaque and their mother but heavy amount paid by Shehzada Muhammad Mushtaque and some payments were contributed by other brothers i.e. complainant, Imtiaz and their mother; they were living in said house as joint family along with two unmarried sisters except Mushtaque who was abroad and Riaz who was living at Korangi. It is stated that sale agreement dated 27.04.1998 filed by respondent No.2 in the court below proved to be false and fabricated, as it showed names of witnesses as Shahzada Mohammad Mushtaque and Mohammad Iqbal; that Mohammad Afzal and Shahzada Mohammad Mushtaque had no knowledge about such deal as they did not sign the agreement hence their signatures were forged; that on 08.12.2011 respondent No.2 stated in writing that respectable persons of locality gathered at P.S. Baldia Town and on decision of Panchayat committee with mutual consent that the house belonged to him, his brother Shahzada Mohammad Mushtaque and Shahzada Mohammad Imtiaz; he also wrote on stamp paper in presence of witnesses that after this decision in Panchayat committee, he would not file any proceedings against his family before any forum and that his two brothers would get the utility connections transferred in their names and he would have no objection; that he left the house along with his family voluntarily however the complainant filed false application before the police and lodged FIR on 09.07.2012 after about seven months of above faisla.

3. During trial on 11.01.2014 complainant recorded his evidence at Exhibit 3 and produced sale agreement, payment receipt, utility bills, tenancy agreement, application to IG Sindh Police, courier receipt, application along with courier receipts, public notice published in Daily Jang Newspaper, application under section 22-A, Cr.P.C. and FIR lodged by him as Exhibits 3/A to 3/K respectively. The complainant examined his real brother PW-2 Shahzada Muhammad Riaz at Exhibit 4, PW-3 Samiullah as Exhibit 5, PW-4 Muhammad Idrees as Exhibit 6 and thereafter closed his side. Accused Shehzada Muhammad Imtiaz, Choudhry Manzoor and Shehzada Muhammad Mushtaque recorded their statements at Exhibits 7 to 9 respectively denying the allegations being false. They claimed to examine themselves on oath and examine witnesses in defence. The statements on oath of accused were recorded at Exhibits 10 to 12. DW-1 Muhammad Afzal recorded his evidence at Exhibit 3, DW-2 Mst. Najma Parveen also recorded her evidence at Exhibit 14. Learned advocate for accused closed his side vide statement at Exhibit 15. After recording statement on oath accused Shahzada Muhammad Ishtiaque did not appear before this court and abscond away hence was declared proclaimed offender.

4. I have heard appellants, learned counsel for respondent as well as learned D.P.G. and perused the record.

5. The conviction under section 3(2) of the Act as well quantum of sentence, so awarded by trial court, has made it quite proper and necessary to first refer and discuss the provision of sections 3(1) and 3(3) of the Act separately. The provision of section 3(1) of the Act reads as:-

3. Prevention of illegal possession of property, etc.---(1) No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owner or occupier of such property.

The very title and language of the provision makes it quite obvious and clear that it is aimed to prevent illegal possession and prima facie restrains one from entering into or upon any property 'without lawful authority' in order to or even with an intention to dispossess, grab, control or occupy same. The deliberate addition of 'grab, control or occupy' also signifies that this (3(1)) is meant for illegal possession. Therefore, it has never been the requirement of Section 3(1) of the Act that there must be an actual dispossession of owner or occupier from such property but requirement would only be that:-

i) one enters into or upon a property without lawful authority; and

ii) such entrance into or upon was in order to or with intention to dispossess, grab, control, or occupy it;

Reference can be made to the case of Gulshan Bibi v. Muhammad Sadiq PLD 2016 SC 769 (Rel. P-777) wherein it is held as:-

7. ... So all that the Court has to see is whether the accused nominated in the complaint has entered into or upon the property in dispute in order to dispossess, grab, control, or occupy it without any lawful authority. Nothing else is required to be established by the complainant as no precondition has been attached under any provision of the said Act which conveys the command of the legislature that only such accused would be prosecuted who holds the credentials and antecedents of 'land grabbers' or 'Qabza Group'. It does not appeal to reason that for commission of an offence reported in the complaint filed under the Illegal Dispossession Act, 2005 the Legislature would intend to punish only those who hold history of committing a particular kind of offence but would let go an accused who though has committed the offence reported in the complaint but does not hold the record of committing a particular kind of offence. In our view trial of a case is to be relatable to the property which is subject matter of the complaint, pure and simple. Any past history of the accused with regard to his act of dispossession having no nexus with the complaint cannot be taken into consideration in order to decide whether the accused stands qualified to be awarded a sentence under the Act or not. Once the offence reported in the complaint stands proved against the accused then he cannot escape punishment under the Illegal Dispossession Act, 2005.

The punishment for such an offence has been provided as:

2). Whoever contravenes the provisions of the subsection (1) shall, without prejudice to any punishment to which he may be liable under any other law for the time being in force, be punishable with imprisonment which may extend to ten years and with fine and the victim of the offence shall also be compensated in accordance with the provisions of section 544 of the Code.

However, the Act also provides a protection against forcible or wrongful dispossession of 'owner' or 'occupier' but independently which is covered by Section 3(3) of the Act which reads as:-

(3) Whoever forcibly and wrongfully dispossesses any owner or occupier of any property and his act does not fall within subsection (1), shall be punished with imprisonment which may extend to three years or with fine or with both, in addition to any other punishment to which he may be liable under any other law for the time being in force. The person dispossessed shall also be compensated in accordance with provisions of section 544-A of the Code)

Such act prima facie not only has been made a separate offence but punishment thereof has been provided independently hence for proving this [offence under section 3(3)] it would always be requirement of the law to prove that:

i) the 'owner' or 'occupier' was physically dispossessed;

ii) such dispossession was either forcible or wrongful;

iii) such dispossession was without lawful authority;

Now, I would conclude that no offence within meaning of Section 3(1) of the Act would be made out if there is no allegation of one to have wrongfully entered into or upon a property. In short, this would not be applicable against one who was allowed / permitted entrance into or upon disputed property by 'owner' or 'occupier' such as against tenant; licensee; co-owner etc. The Section 3(2) of the Act even is not in derogation to well settled principle of law that none has to take the law into his hands hence even if status of 'occupier' (not obtaining possession illegally within meaning of Section 3(1) of Act) is denied / disputed by 'owner' yet he (owner) would not be legally justified to forcibly or wrongfully dispossessed such 'occupier'. Thus, a complaint under section 3(3) of the Act could well be maintained against the 'owner' even by the 'occupier' if such 'owner' forcibly or wrongfully dispossesses the 'occupier'.

1. Now, I would revert to merits of the case, prima facie, it was an admitted position that the complainant himself had stated in his complaint that:

"accused are respectively his father and brother to whom the complainant had allowed to reside in his aforesaid house;

The very admission of the complainant that accused (appellant herein) were allowed to reside was always sufficient to conclude that there had not been any illegal or wrongful entrance into or upon the disputed property hence offence under section 3(1) of the Act was never made out. A permission by 'owner' or 'occupier' to one to enter into or upon would dress such person with status of 'licensee' which status would provide protection, as provided by section 3(3) of the Act, to such person even. In such a situation no conviction can sustain under section 3(2) of the Act thus, the learned trial court judge wrongly awarded conviction to appellants under section 3(2) of the Act when undeniably there was no illegal entry into or upon disputed property rather admittedly it was the complainant himself who had allowed them (appellants) to enter into and reside in disputed property (house). Accordingly, conviction, so awarded by learned trial court judge under section 3(2) of the Act, was / is not sustainable.

However, since the complainant claimed dispossession which, as already discussed is an independent offence, therefore, it would be proper to see whether the complainant succeeded in establishing the charge within meaning of section 3(3) of the Act or otherwise?

1. In the instant matter, prima facie, the complainant never successfully established his forcible or wrongful dispossession which, otherwise, was necessary ingredient to make out an offence within meaning of Section 3(3) of the Act. It is a matter of record that the complainant himself stated in his complaint as:-

"5. That the accused above-named with the collusion of some area peoples who having good approaches in the area, with a preplan scheme, on 19.12.2011 threatened the complainant and beaten him and subsequently forcibly dispossessed/ejected the complainant and his family from the house in question on gun point and on gun point threatened the complainant to leave the house otherwise they will kill the complainant and his family their dead body will pack in bags and will throw anywhere. Due to fear of life the complainant along with his family was compelled to leave the house in question and presently residing at the address given in the title of the complainant.

6. That in the month of April 2012 the accused No.2 with the connivance of accused Nos.1 and 3 got prepared forged documents pertaining to the said property and transferred the Utility bills in his name.

7. That when this fact came into the knowledge of the complainant, he got published a public notice in Daily Jang dated 09.05.2012.'

Prima facie, the complainant was compelled to leave the house which act, no doubt, would fall within meaning of wrongful dispossession but would always require the complainant to establish the complained acts and omissions, thereby resulting into one's wrongful dispossession. The contents of the complaint themselves indicate that there was no grievance to complainant till the accused No.2 got the utility connections changed into his name and there was no complaint or approach even by complainant to any authority with regard to his wrongful dispossession. Though the learned trial Court judge himself admitted that burden was upon the complainant to prove the ingredients of complained offence yet failed to appreciate that complainant only established his claim as purchaser but never proved his forcible or wrongful dispossession by independent and confidence inspiring evidences. Here a referral to operative part of the impugned judgment, being relevant, is made hereunder which reads as:-

2020 M L D 1176

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ali Sangi, J

TARA CHAND---Appellant

Versus

IMTIAZ ALI and another---Respondents

Criminal Acquittal Appeal No. S-151 of 2019, decided on 20th September, 2019.

Penal Code (XLV of 1860)---

----Ss. 406, 420, 468, 506/2 & 34---Criminal breach of trust, cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating, criminal intimidation, common intention---Appreciation of evidence---Appeal against acquittal---Appellant nowhere in his evidence had stated a single word nor produced any valid receipt about the date and time of obtaining loan by accused and handing over documents of vehicles as mortgage to him---Appellant was unable to disclose names of real owners of vehicles whose documents were retained by him and handed over huge amount to accused persons---Evidence about the verification of files of vehicles was doubtful and was not confronted to accused persons during their statement under S.342, Cr.P.C.---All the witnesses were employees of the appellant, hence, were interested and their evidence was not free from doubts---Burden of proving the case was upon the prosecution---Single circumstantial doubt in the case of prosecution would go in favour of accused not as a matter of grace but as a matter of right---Approach to deal with the appeal against conviction was distinguishable from appeal against acquittal, because presumption of double innocence was attached in the latter case --- Impugned judgment did not suffer from any illegality so as to call for interference---Appeal against acquittal was dismissed, in circumstances.

Imdad Ali Memon for Appellant.

2020 M L D 1181

[Sindh (Hyderabad Bench)]

Before Nadeem Akhtar and Adnan-ul-Karim Memon, JJ

MUHAMMAD KHAN and 123 others---Petitioners

Versus

The COMMISSIONER, HYDERABAD DIVISION, HYDERABAD and 8 others---Respondents

C. P. No. D-131 of 1993 of 2019, decided on 5th November, 2019.

Cantonments Act (II of 1924)---

----Ss. 184 & 185---Cantonments Land Administration Rules, 1937, R.9(5)---Cantonment land---Illegal occupants---Petitioners assailed allotment of cantonment land to a housing society---Plea raised by petitioners was that they had occupied land in question till they were accommodated in some other location for their rehabilitation---Validity---Revenue department was to accommodate petitioners, if they were at all entitled under law on basis of possessory rights since 1965---Land in question could not be retained under garb of providing alternate land and same had already been allotted for defence purposes which could not be retained by any of petitioners under law---Grant/Allotment of state land on ground of mere possession was not right of an individual rather it was a grace---No person had any right or title in State land until a written order had been passed strictly in accordance with law and allottee/grantee lawfully took over possession in pursuance of such order---High Court declined to interfere in the matter as land in question was not allotted to petitioners nor they had lawfully obtained possession---Constitutional petition was dismissed in circumstances.

Province of Punjab through Secretary Revenue and others v. District Bar Association, Khanewal 2014 SCMR 1611 and Suo-Motu case No.16 of 2011 rel.

Muhammad Rashid Nizam for Petitioners.

Allah Bachayo Soomro, Addl. Advocate General, Sindh for Respondents Nos.1 to 5.

Muhammad Humayoon Khan, D.A.G. for Respondent No.6.

Rafique Ahmed for Respondent No.7 along with Naseem-ul-Haque, Legal Assistant Cantonment Board, Hyderabad.

2020 M L D 1188

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

IMTIAZ ALI---Appellant

Versus

QURBAN ALI and 2 others---Respondents

Criminal Acquittal Appeals Nos. D-177 and D-178 of 2018, decided on 11th October, 2019.

Penal Code (XLV of 1860)---

----Ss.302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Contradiction in medical and ocular evidence---Sending of empties along with weapon on the fifth day of recovery---Effect---Accused persons were alleged to have murdered the brother of complainant---Post-mortem report did not lend corroboration to the ocular evidence rather it contradicted the eye-witnesses who had stated that the accused had fired from the distance of 1 or 2 paces but there was no charring and blackening on the injury---Empty collected on the day of incident was sent along with the pistol on the fifth day of its recovery---Prosecution had failed to prove guilt of the accused, as such Trial Court had no option but to acquit the accused of the charge---Appeals against acquittal was dismissed, in circumstances.

Saleem Akhtar Malik's case 1999 SCMR 114; Criminal Shariat Appeal No.7 of 2017 and Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803 rel.

Ubedullah Ghoto for Appellant.

Amanullah G. Malik (in Criminal Acquittal Appeal No.D-177 of 2018) and Shamsuddin N. Kolbhar (in Criminal Acquittal Appeal No.D-178 of 2018) for Responding.

Shafi Muhammad Mahar, Deputy Prosecutor General for the State.

2020 M L D 1198

[Sindh]

Before Fahim Ahmed Siddiqui, J

AZAM ZAHEER KHAN and 6 others---Plaintiffs

Versus

IQBAL ZAHEER KHAN and 2 others---Respondents

C.M.A. No. 7184 of 2019 in Civil Suit No. 1104 of 2004, decided on 11th October, 2019.

Specific Relief Act (I of 1877)---

----S. 54---Civil Procedure Code (V of 1908), O. XXI, Rr. 85, 88 & S.114---Suit for partition, separate possession, perpetual injunction, rendition of account and mesne profit---Review---Execution proceedings---Enhancement of bid amount---Right of legal heir---Applicant filed review against enhancement of bid issued by Trial Court to respondent who was legal heir in suit property---Plea raised by applicant was that he had already submitted 25% of bid amount being highest bidder---Validity---In all public sales, authorities including court and its staff was to protect interests of parties---Unless highest bid offered by applicant was accepted by court and entire amount was deposited by him, he had no legal right or character in property in question---Preferential right of legal heir was also a legal obligation upon court---Bid of co-sharer according to O.XXI, R.88, C.P.C. had preference over bid of any outsider---Whenever a co-sharer offered to match highest bid and same was not objected by other co-sharers, there could be no reason to refuse such an offer---If a matching or better offer was received from co-sharer and other co-sharers were satisfied with such offer, there would be no need to give notice to higher bidder for enhancing his bid---Order under review was not passed behind back as same was passed in presence of counsel for the applicant---High Court declined to interfere in order passed by Trial Court as there was no merit in application---Review was dismissed in circumstances.

Muhammad Junaid Khatri for Plaintiffs Nos.1, 3, 4, 5 and 7.

Muhammad Rafique Khan for Plaintiffs Nos. 2 and 6.

Ms. Soofia Saeed for Defendant No.3.

Sikandar Khan for Applicant.

2020 M L D 1202

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ali Sangi, J

ABDUL GHAFOOR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-110 of 2014, decided on 25th September, 2019.

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

----S. 302 (b)---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd---Appreciation of evidence---Dying declaration---Voice recording---Evidence not put to accused---Accused was charged with murder of his own wife on the basis of voice recording of deceased made by complainant at the time while she was dying---Police official who stated to have recorded dying declaration was not present when the declaration was recorded---Trial Court only believed dying declaration made by deceased and voice recorded by complainant but the same were not put to him during examination under S.342, Cr.P.C.---Piece of evidence not put to accused in statement under S.342, Cr.P.C. could not be relied upon against him---High Court set aside conviction and sentence awarded by Trial Court and accused was acquitted of the charge---Appeal was allowed in circumstances.

Muhammad Ameer and others v. Riyat Khan and others 2016 SCMR 1233; Nusrat Ali Shar and others v. The State Criminal Appeals Nos. 24-K, 25-K and 26-K of 2018; Imtiaz alias Taj v. The State 2018 SCMR 344; Qadan and others v. The State 2017 SCMR 148; Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1710 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

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

----S. 342---Qanun-e-Shahadat (X of 1984), Arts. 2 (c), 71 & 132---Words 'for the purpose of enabling the accused to explain any circumstances appearing in evidence against him' occurring in S.342, Cr.P.C.---Scope---Evidence occurring in the phrase in S.342, Cr.P.C.---Analysis---Not only the circumstances appearing in examination-in-chief are also required to be put to accused, if those are against him but circumstances appearing in cross-examination or re-examination are also required to be put to accused, if the same are against him---Word 'evidence' in the said phrase in S.342, Cr.P.C. means examination-in-chief, cross-examination and re-examination, as provided under Arts. 2(c), 71 & 132 Qanun-e-Shahadat. 1984.

Muhammad Shah v. The State 2010 SCMR 1009 rel.

Imam Bux Baloch for Appellant.

Ms. Sana Memon, A.P.G. for the State.

2020 M L D 1218

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

AAMEEN and another---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos. D-29 and 30 of 2018, decided on 10th October, 2019.

(a) Maxim---

----Falsus in uno, Falsus in omnibus---Applicability---Said principle is to be applied in judicial dispensation with full force---Witness found to be lying on one material aspect is to be disbelieved on all other aspects of the case.

Notice to Police Constable Khizar Hayat son of Hadait Ullah PLD 2019 SC 527 rel.

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

----Ss. 302 & 149---Anti-Terrorism Act (XXVII of 1997), S.7(1)(a)---Sindh Arms Act (V of 2013), S. 25---Qatl-i-amd, rioting armed with deadly weapons and possession of illegal firearms---Appreciation of evidence---Maxim: Falsus in uno, Falsus in omnibus---Applicability---Accused persons were alleged to have committed Qatl-i-amd, rioting armed with deadly weapons and possession of illegal firearms---Complainant and prosecution witnesses were found to be lying on all material aspects before Trial Court by deposing that accused persons before court were not the same---Evidence of such prosecution witnesses was to be disbelieved on all other aspects---Conduct of eyewitnesses at time of incident created doubt in case of prosecution who remained calm and did not try to rescue the deceased---No independent piece of evidence was available against accused persons to connect them with commission of offence---High Court set aside conviction and sentence awarded to accused persons and acquitted them of charge as prosecution failed to prove its case against them---Appeal was allowed in circumstances.

Notice to Police Constable Khizar Hayat son of Hadait Ullah PLD 2019 SC 527 rel.

J.K. Jarwar for Appellants.

Shafi Muhammad Mahar, D.P.G. for the State.

2020 M L D 1239

[Sindh]

Before Muhammad Faisal Kamal Alam, J

Messrs SHAHBAZ GOTH RESIDENTS WELFARE SOCIETY through President and another---Plaintiffs

Versus

GOVERNMENT OF SINDH through Secretary Land Utilization Department Board of Revenue and 10 others---Defendants

Suit No. 762 of 1995, decided on 21st May, 2019.

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

----S. 10---Government scheme land---Regularization of village---Plaintiffs were welfare societies which constructed village in question which was built on government land and sought regularization of their village---Validity---Plaintiffs did not have ownership/title documents in respect of lands claimed by them and merely sought that an area falling in government land in possession of plaintiffs be regularized as a village---Such plea had no legal grounds and plaintiffs were to be removed by authorities forthwith---High Court rejected claim made by plaintiffs as authorities and its other bona fide/genuine allottees and other transferees who had acquired or purchased various plots through valid sale transactions had entitlement in respect of land in question---Suit was decreed accordingly.

Pir Masoom Jan Sarhandi v. Ms. Talat Ejaz Civil Petition No.2086 of 2015 and Dr. Arifa Farid and others v. Mitha Khan and others1 and 2 Suit No.2322 of 2014 rel.

Abdul Kareem Khan for Plaintiffs.

Sohail Abdul Rahim for Defendant No.7, along with Defendant No.7.

Yawar Farooqui and Asad Ali for Defendant No.10.

Muhammad Yousuf Rahpoto, Assistant A.G. along with Ms. Farkhunda Mangi, State Counsel.

Ahmed Ali Ghumro for L.U. Department.

G. M. Bhutto and Syed Iftikhar-ul-Hassan, Advocates/Law Officers of K.D.A.

Iftikhar Ahmed, holds brief for Muhammad Hanif for Plaintiff.

Yar Muhammad Bozdar, Deputy Secretary, L.U. Department, Abdul Qadeer Mangi, D.G. K.D.A., Abdul Haque Chawro, Mukhtiarkar, Gulshan-e-Iqbal, Sub-Division, are present.

2020 M L D 1255

[Sindh]

Before Mohammad Karim Khan Agha, J

MUHAMMAD SHAKEEL---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 552 of 2017, decided on 23rd June, 2017.\

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 6, 9, 14, 15, 25 & 51---Possession of three and half kilograms of Charas---Bail, refusal of---"Huge quantity"---Scope---Petitioner, possessing narcotic substance, was arrested---Petitioner contended that charas belonged to some one else and there was no material to connect him with the alleged offence---Petitioner was caught red-handed with a huge quantity of Charas unlikely to have been foisted on him especially as there was no allegation of any enmity between him and Anti Narcotic Force officials who arrested him---Chemical Report was positive---Quantity of narcotic had brought the offence within the prohibitory clause of S.497, Cr.P.C---Non-presence of independent mashirs was of no significance at bail stage---Sufficient material was on record to connect the petitioner with the offence---Bail was refused, in circumstance.

Socha Gul v. The State 2015 SCMR 1077 ref.

Ali Hassan alias Hasan v. The State 2014 YLR 188; Sartaj v. State PLJ 2014 Cr.C. 700; Makhdoom Sajjad v. The State SBLR 2014 Sindh 1514; Liaqat Ali v. The State 2014 MLD 392; Malang v. The State 2017 MLD 303 and Qamar Zaman v. The State 2017 YLR 874 distinguished.

Abdul Hameed for Applicant.

Habib Ahmed, Special Prosecutor A.N.F. for the State.

2020 M L D 1260

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Mohammad Karim Khan Agha, JJ

GHULAM MUSTAFA---Appellant

Versus

ALI NAWAZ and 2 others---Respondents

Criminal Acquittal Appeal No. D-20 of 2016, decided on 17th September, 2018.

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

----Ss. 302 & 34---Criminal Procedure Code (V of 1898), Ss. 161 & 164---Qatl-i-amd, common intention---Delay in lodging FIR---Delay in recording statements under Ss.161 and 164, Cr.P.C.---Accused not named in FIR---Unnatural conduct of eye-witnesses---Scope---Appellant sought indulgence of court to set at naught the judgment passed by Trial Court whereby accused persons were acquitted---Incident had taken place on 06/07-08-2013 whereas FIR of the incident was registered on 09-08-2013---Names of accused persons were not given in the FIR---Delay in registration of FIR was also not satisfactorily explained by the complainant---Eye-witnesses stated that they saw the accused persons strangulating the deceased with rope and that the accused persons threatened them that if they narrated the incident to anybody else (Eye-witnesses) they would face dire consequences---Eye-witnesses did not report the matter to anyone immediately but disclosed the incident after a delay of 8 days---Statements of eye-witnesses under S.164, Cr.P.C., were recorded after a delay of 14 days---One of the eye-witnesses was close relative of the deceased---Order of acquittal was neither the result of mis-reading or non-reading of evidence, nor it could be termed as perverse, so as to result in miscarriage of justice---Appeal against acquittal was dismissed.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Recovery of weapon of offence---Joint pointation---Preparation of memo of recovery at police station---Effect---Accused persons had allegedly got recovered a rope from the heap of grass in the presence of witnesses---Prosecution witness/mashir supported the memo of inspection of dead body, memo of place of incident, memo of arrest, memo of recovery despite that he stated that memo of arrest, memo of pointation of recovery of ligature (rope) and mobile phone were prepared and signed by him at the Police Station---Both the said memos lost their evidentiary value, in circumstances---Recovery was made on the joint pointation of both the accused persons, which was inadmissible---Appeal against acquittal was dismissed.

(c) Criminal trial---

----Recovery---Joint pointation---Scope---Recovery which is made on the pointation of more than one accused is inadmissible in evidence and cannot be relied upon.

Gul Jamal and another v. The State 1980 SCMR 654 ref.

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

----S. 417---Appeal against acquittal---Scope---Judgment of acquittal cannot be interfered with until and unless the findings are perverse, arbitrary and speculative---Scope of interference in the appeal against acquittal is narrow and limited because in the acquittal, the presumption of innocence is significantly added to the rule of criminal jurisprudence as the accused shall be presumed to be innocent until proven guilty, in other words, presumption of innocence is doubled.

The State v. Abdul Khaliq and others PLD 2011 SC 554; Mirza Noor Hussain v. Farooq Zaman and 2 others 1993 SCMR 305; Yar Mohammad and 3 others v. The State 1992 SCMR 96 and Ghulam Sikandar and another v. Mamraz Khan and others PLD 1985 SC 11 rel.

Mahmood Alam Abbasi for Appellant.

Respondents Nos.1 and 2 not present.

Syed Meeral Shah Bukhari, Additional Prosecutor General for the State.

2020 M L D 1274

[Sindh]

Before Fahim Ahmed Siddiqui, J

Dr. BABAR YAQOOB SHEIKH---Applicant

Versus

HARIS HAFEEZ and 3 others---Respondents

Criminal Revision Application No. S-70 of 2017, decided on 14th September, 2018.

(a) Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 5---Prevention of illegal dispossession from property---Investigation and procedure---Non-production of material witness and non-examination of investigating officer---Effect---Complainant was aggrieved of dismissal of his complaint by the Trial Court---Allegation of complainant was that the encroacher had dispossessed his attorney from the shop by changing the locks---Contention of encroacher was that he had taken over the possession of the shop as a tenant from third person---Validity---Said third person was a necessary party and his name was to be included as accused---Attorney of complainant was an important witness who was not examined---Officer who had conducted investigation was also not examined before the Trial Court---Trial Court had rightly dismissed the complaint---Criminal revision was dismissed.

(b) Illegal Dispossession Act (XI of 2005)---

----S. 3---Prevention of illegal dispossession of property---Duty of complainant---Scope---Complainant is to specifically describe the unlawful act of dispossession (actus rea) by complete detail of action done by all those, who are responsible for his dispossession of the property illegally and nominate them as proposed accused in the complaint---Complainant is also required to establish that there exists a clear-cut criminal intention (mens rea) on the part of such proposed accused---Complaint against an encroacher cannot succeed in absence of unlawful act (actus rea) and a willful knowledge, a belief that he is doing an unlawful act (animous nocendi) or criminal intention (mens rea).

(c) Criminal trial---

----Burden of proof---Scope---Person who alleges some fact has to prove the same without reasonable doubt.

Waqar Ali and others v. The State and others PLD 2011 SC 181 ref.

Ms. Riffat Bano for Applicant.

Respondent No.1 present in person.

Zahoor Shah, Deputy Prosecutor General for Respondents.

2020 M L D 1293

[Sindh (Hyderabad Bench)]

Before Aftab Ahmed Gorar and Muhammad Faisal Kamal Alam, JJ

UZAIR AHMED---Petitioner

Versus

The DISTRICT COORDINATION OFFICER (DCO) DISTRICT JAMSHORO and 2 others---Respondents

Constitutional Petition No. D-17 of 2009, decided on 23rd January, 2020.

Sindh Permanent Residence Certificate Rules, 1971---

----R. 6---Permanent residence certificate---Admission in educational institutions on the basis of such certificate---Cancellation of permanent residence certificate---District Coordination Officer cancelled permanent residence certificate issued in favour of petitioner---Contention of petitioner was that no opportunity of hearing was afforded to him before passing the impugned order---Validity---Permanent residence certificate was not fake and petitioner was residing at the given address of the District since his birth---Authorities had not properly appreciated the documentary evidence available on record---Petitioner was domiciled in the district for more than three years and he had fulfilled the requirements of R.6(ii)(b) of Sindh Permanent Residence Certificate Rules, 1971---Petitioner had not been afforded an opportunity of hearing while passing the impugned order---Impugned order being contrary to record was not sustainable which was set aside and permanent residence certificate of the petitioner was restored---Constitutional petition was allowed, in circumstances.

Mehmood ul Hassan Khan v. Dow University of Health Sciences through Vice Chancellor PLD 2008 Kar. 49 and Haleem ur Rehman v. Province of Sindh and others 2019 SCMR 1653 rel.

Riazat Ali Sahar for Petitioner.

Allah Bachayo Soomro, Additional A.G. for Respondent No.1.

Kamaluddin for Respondent No.2.

Arbab Ali Hakro for Respondent No.3.

2020 M L D 1310

[Sindh (Hyderabad Bench)]

Before Muhammad Iqbal Kalhoro and Adnan-ul-Karim Memon, JJ

ABDUL HAMEED---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Ministry of Pakistan Railway, Islamabad and 7 others---Respondents

Constitutional Petition No. D-914 of 2015, decided on 29th January, 2019.

Constitution of Pakistan---

----Arts. 23, 24 & 199---Right as to property---Protection of private property---Failure to prove ownership of property---Disputed questions of fact---Alternate remedy, availability of---Scope---Petitioner invoked the constitutional jurisdiction of High Court and prayed that he might not be evicted from the subject premises, which was in his lawful possession, being his private property---Validity---Constitutional petition was not maintainable for the reason that the petitioner had failed to substantiate his claim of ownership---Authorities had not issued any allotment order in favour of the petitioner---Mere possession of the subject premises could not confer ownership rights upon the petitioner to claim protection of Arts. 23 & 24 of the Constitution---Petitioner had the remedy to approach civil court for grant of similar relief---High Court could not dilate upon the disputed claims and counter claims of the parties under constitutional jurisdiction---Constitutional petition was dismissed.

Zahoor Ahmed Baloch for Petitioner.

Nazeer Ahmed Bhatti for Respondents Nos. 4 and 5.

Allah Bachayo Soomro, Additional Advocate-General for Respondents.

Zulfiqar Ali Rajput, Assistant Attorney General for Respondents.

2020 M L D 1319

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MUHAMMAD USMAN---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 362 and 363 of 2018, decided on 13th November, 2019.

(a) Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Sindh Arms Act (V of 2013), S. 23(1)(a)---Attempt to cause explosion or for making or keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, unlicensed possession of arms---Appreciation of evidence---Sentence reduction in---Accused was alleged to have been found in possession of one grenade and a pistol of 32 bore containing 3 live bullets---Prosecution witnesses had supported the case of prosecution as well as recovery of hand grenade and pistol by providing oral and documentary evidence---High Court, while keeping in view that the accused was aged about 27 years that he was the sole bread earner of a large family and that he was capable of reformation, reduced his sentence---Appeals were disposed of accordingly.

(b) Explosive Substances Act (VI of 1908)---

----S. 5---Sindh Arms Act (V of 2013), S. 23(1)(a)---Criminal Procedure Code (V of 1898), S. 423---Making or possessing explosives under suspicious circumstances, unlicensed possession of arms---Powers of appellate court in disposing of appeal---Sentence---Scope---Section 5 of Explosive Substances Act, 1908 and S.23(1)(a) of Sindh Arms Act, 2013 only provide the words "may extend to fourteen years" and thus do not restrain the Court from awarding lesser sentence in its discretion keeping in view S.423, Cr.P.C.

Ms. Safia Khan for Appellant.

Muhammad Iqbal Awan Deputy Prosecutor General, Sindh for the State.

2020 M L D 1329

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

AZHAR HUSSAIN and others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 276, 288 and 289 of 2016, decided on 30th October, 2019.

(a) Criminal trial---

----Evidence---Quality---Prosecution has to prove its case by producing confidence inspiring and trustworthy evidence---Sole evidence of material witness is always sufficient to establish guilt of accused, if the same is confidence inspiring and trustworthy supported by other independent source of evidence---Law requires quality of evidence and not quantity to prove the charge.

2013 PCr.LJ 783; Namoos Khan and another v. The State 2017 PCr.LJ 34; Behram v. The State 2015 YLR 150 and Niaz-ud-Din and another v. The State 2011 SCMR 725 rel.

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

----Ss. 302 & 34---Pakistan Arms Ordinance (XX of 1965), S. 13-D--- Anti-Terrorism Act (XXVII of 1997). S. 7(1)(a)---Qatl-i-amd, recovery of firearm, act of terrorism---Appreciation of evidence---Police witnesses---Police officials were as good as private witnesses and their testimony could not be discarded merely for the reason that they were police officials, unless the defence would succeed in giving dent to the statements of prosecution witnesses and prove their mala fide or ill-will against accused---All witnesses supported the case of prosecution---Ocular evidence was supported by medical evidence so also circumstantial evidence---Incident was day time and there was no mistake in identification of accused---Arrest of one accused from spot with crime weapon used in commission of offence, recovery of crime weapon and crime empties supported by Forensic Science Laboratory report, presence of absconded accused at the time of offence duly armed with iron rod was evident from Close Circuit Television footage and CD exhibited in evidence, showed that prosecution had proved its case beyond shadow of doubt---High Court declined to interfere in the conviction and sentence awarded by Trial Court to accused persons---Appeal was dismissed in circumstances.

Waris Ali and 5 others v. The State 2017 SCMR 1572 and Province of Punjab through Secretary Punjab Public Prosecution Department and another v. Muhammad Rafique and others PLD 2018 SC 178; Gulfam and another v. The State 2017 SCMR 1189; 2019 PCr.LJ 569 and 2013 PCr.LJ 783 ref.

Shahbaz Masih v. The State 2007 SCMR 1631; Ghaus Bux v. The State PLD 2004 Kar. 201; Azkar Hussain Shah v. The State 2019 YLR 1470; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Muhammad Akram v. The State 2009 SCMR 230; Allah Ditta and others v. The State and others 2017 PCr.LJ 789; Muhammad Ibrahim v. Ahmed Ali and others 2010 SCMR 637; Barkat Ali v. Muhammad Asif and others 2007 SCMR 1812; Noor Muhammad v. The State and another 2010 SCMR 97; Muhammad Mansha v. The State 2018 SCMR 772; Nasir Javaid and another v. The State 2016 SCMR 1144; Mst. Nazia Anwar v. The State and others 2018 SCMR 911; Khan Bacha v. The State PLD 2006 Kar. 698; Mithal alias Babal and another v. The State 2009 PCr.LJ 1288; Qaddan and others v. The State 2017 SCMR 148 and Nazir Ahmad v. Muhammad Iqbal and another 2011 SCMR 527 distinguished.

Muhammad Riaz for Appellant (in Special Criminal Anti-Terrorism Appeal No.276 of 2016).

Mohammad Iqbal Awan, DPG for Respondent/State (in Special Criminal Anti-Terrorism Appeals Nos.276, 288 and 289 of 2016).

Shaukat Hayat for Appellant (in Special Criminal Anti-Terrorism Appeals Nos.288 and 289 of 2016).

2020 M L D 1344

[Sindh]

Before Mohammad Karim Khan Agha and Abdul Mobeen Lakho, JJ

Syed MEHROZ MEHDI ZAIDI alias MEHDI BADSHAH---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeal Nos. 356 and 357 of 2018, decided on 21st January, 2020.

(a) Explosive Substances Act (VI of 1908)---

----Ss. 4/5---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 6(2)(ee)---Criminal Procedure Code (V of 1898), Ss. 164 & 364---Recovery of explosive substance, firearms and terrorism---Appreciation of evidence---Confessional statement---Mandatory requirements, non-compliance of---Benefit of doubt---Accused was convicted by Trial Court on the basis of his confessional statement recorded during investigation---Magistrate while recording confessional statement of accused failed to discharge his duty in accordance with law and did not put relevant questions to accused to ascertain that the confession was voluntarily, true and without any inducement---Such confession lost its evidentiary value---High Court extended benefit of doubt to accused, set aside conviction and sentence awarded by Trial Court and acquitted him of the charge---Appeal was allowed, in circumstances.

Khalid Javed and others v. The State 2003 SCMR 1419; Ikramullah and others v. The State 2015 SCMR 1002; Muhammad Pervez and others v. The State and others 2007 SCMR 670; Ghous Bux v. Saleem and 3 others 2017 PCr.LJ 836; Naseb Zada v. The State and another 2019 YLR 2157; Abdur Rehman v. The State and another 2018 YLR 1629 and Jameel and another v. The State 2019 YLR 516 ref.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

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

----S.364---Examination of accused---Mandatory requirements---Provisions of S.364, Cr.P.C. are mandatory and any illegality occasioned thereof is not curable.

Gul Jehan v. State 1998 MLD 288 rel.

Muhammad Farooq for Appellant (in both cases).

Ch. Muhammad Anwar, Special Prosecutor, Rangers for the State (in both cases).

2020 M L D 1352

[Sindh]

Before Muhammad Saleem Jessar, J

IRFAN ULLAH KHAN ASIF and another---Applicants

Versus

1ST ADDITIONAL DISTRICT AND SESSIONS JUDGE, KARACHI and 6 others---Respondents

Criminal Miscellaneous Application No. 6 of 2016, decided on 29th August, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 265-K--- Sindh Arm Act (V of 2013), S. 26---Inherent jurisdiction---Power of court to acquit accused at any stage---Passing of stricture against the applicants by the Trial Court while allowing the application of the accused under S.265-K, Cr.P.C.---Scope---Section 26 of the Sindh Arms Act, 2013 povided that before taking action and declaring responsible any police officer or seizer or witness for fake, vexatious recovery, seizer and arrest, holding of detailed enquiry was necessary and no declaration could be made without holding such enquiry---Principles of natural justice and rule of audi alteram partem, particularly the provisions of S.24-A of the General Clauses Act, 1897 demanded that before taking any adverse action against any person, he was to be afforded sufficient opportunity of hearing---Impugned order showed that neither any notice was issued to the applicants nor they were afforded any opportunity of hearing to explain their position---Applicants being star witnesses of the case had not been examined, therefore, they were not subjected to cross-examination besides their version was not brought on record---Statement of hostile witness had created sufficient doubt in the prosecution evidence regarding acquittal of accused applicant---Impugned order to the extent of acquittal of the accused applicant needed no interference---Benefit of slightest doubt in prosecution case must be extended in favour of the accused---Impugnedorder, to the extent of passing stricture against the applicants, was set aside and the case was remanded to the Trial Court with the direction to hold enquiry as contemplated under S.26 of the Sindh Arms Act, 2013, in its letter and spirit after providing proper opportunity of hearing to the applicants---Impugned order to the extent of acquittal of accused applicant under S.265-K, Cr.P.C., was kept intact---Application along with pending application was disposed of accordingly.

Samiullah Soomro for Applicants.

Ms. Rubina Qadir, A.P.G. for the State.

2020 M L D 1371

[Sindh]

Before Muhammad Iqbal Kalhoro and Adnan-ul-Karim Memon, JJ

MUHAMMAD USMAN---Petitioner

Versus

FEDERATION OF PAKISTAN and 8 others---Respondents

Constitutional Petition No. D-380 of 2017, decided on 20th February, 2019.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Disputed questions of fact---Grievance of petitioner was that he was not given the compensation due to the damage caused to his land by water logging---Disposal of poisonous water of Thermal Power Station was stated to be the main reason of water logging---Validity---Veracity of the documents brought on record and claims and counter claims of the parties could not be determined being disputed questions of fact---High Court left it for the competent authority to determine the genuineness or otherwise of the claims of petitioner---Authority concerned was directed by the High Court to constitute a committee to conduct an inquiry with regard to the compensation to be given to the petitioner for his damaged land, to fix responsibility in the matter and to take appropriate measures in accordance with law---Constitutional petition was disposed of accordingly.

Petitioner present in person.

Fayaz Ahmed Leghari for Respondents Nos.3, 4 and 5.

Muhammad Ismail Bhutto, Addl. A.G. for Respondents.

Aslam Pervaiz Khan, Asstt: Attorney General for Respondents.

2020 M L D 1377

[Sindh]

Before Mohammad Karim Khan Agha and Abdul Mobeen Lakho, JJ

SAGHEER AHMED alias BHAYA---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeal No. 46 of 2013, decided on 27th January, 2020.

Penal Code (XLV of 1860)---

----Ss. 302 & 365-A---Anti-Terrorism Act (XXVII of 1997), S. 7---Pakistan Arms Ordinance (XX of 1965), S. 13(e)---Qanun-e-Shahadat (10 of 1984), Art.40---Qatl-i-amd, kidnapping for ransom, recovery of firearms and act of terrorism---Appreciation of evidence---Disclosure by accused---Recovery of dead body---Circumstantial evidence---Accused after arrest led to recovery of dead body of deceased who was murdered after kidnapping for ransom---Key to the iron box wherein dead body had been kept followed by recovery of .30 bore pistol and empty used in crime were recovered from the house of accused which was fully corroborated by the statements of prosecution witnesses---Prosecution successfully proved the case against accused by producing corroborative circumstantial evidence which had linked the accused to the murder of deceased through ocular evidence, medical evidence in the form of medical report, recovery of dead body, key to the box, pistol, motor bike of deceased from the place where ransom caller mentioned, the CDR data and positive Forensic Science Laboratory report---Evidence of prosecution witnesses was consistent, trustworthy, confidence inspiring and accused failed to shatter their evidence during cross-examination---High Court declined to interfere in conviction and sentence awarded to accused by Trial Court---Appeal was dismissed in circumstances.

Azeem Khan and another v. Mujahid Khan 2016 SCMR 274; Hashim Qasim and another v. The State 2017 SCMR 986; Muhammad Akram v. The State 2009 SCMR 230; Zakir Khan and others v. The State 1995 SCMR 1793; The State v. Manzoor Ahmed PLD 1966 SC 664 and Muhammad Sharif v. The State 2011 SCMR 1046 ref.

Hamid Mahmood and another v. The State 2013 SCMR 1314 and Nazir Shehzad and another v. The State 2009 SCMR 1440 rel.

Ajab Khan Khattak for Appellant.

Muhammad Iqbal Awan, Deputy Prosecutor General, Sindh for the State.

2020 M L D 1387

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Fahim Ahmed Siddiqui, JJ

MUHAMMAD KHAN and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.D-31 of 2017, decided on 20th September, 2017.

Penal Code (XLV of 1860)---

----Ss. 427, 435 & 506(2)---Anti-Terrorism Act (XXVII of 1997), S. 6(2)(c)---Grievous damage to property, mischief causing damage to the amount of fifty rupees, mischief by fire or explosive substance with intent to cause damage, criminal intimidation---Appreciation of evidence---Benefit of doubt---Non-production of burnt property---Non-production of fireman---Effect---Engineer, Irrigation Department reported the police that he received a letter from Assistant Executive Engineer along with an application of Project Manager informing that they were present on the site when they saw one of the accused having jerrican in his hand and the other two nominated accused having matchboxes in their hands with other 20 unknown persons on the site, threatened them and forcibly set the pipeline on fire---Held; Appellants were protesting about non-payment of compensation and the executing agency and their contractors were bent upon to execute the work without satisfying the villagers, whose lands were acquired for the project---Prosecution witnesses were directly or indirectly under the influence of the complainant---Eye-witnesses pretended to be the witnesses of the incident---Incident allegedly took place on Friday when the work of pipeline was not being carried out as it was weekly holiday---Time of incident was exactly the same when the Jummah prayer was being offered---Availability of eye-witnesses on the aforesaid date and time was highly doubtful especially when it came on record that the campsite of contract was situated miles away from the place of incident---Eleven pipes were burned while 12 pipes were saved but neither the burnt pipes nor the safe pipes were produced before the court as 'real or article evidence'---Prosecution had produced some pieces of burnt pipes but ashes were not produced---Fire Brigade was called for extinguishing the fire but no fireman or their officer was examined before the Trial Court---Prosecution case was not free from doubt---Benefit of doubt went in favour of the accused---Appeal was allowed, in circumstances.

Abdul Ghaffar Narejo and Saddam Hussain Nohari for Appellants.

Shahzado Saleem Nahiyoon, D.P.G. for the State.

2020 M L D 1393

[Sindh]

Before Muhammad Faisal Kamal Alam, J

RAHIM ALI PALARI and 2 others---Plaintiffs

Versus

GOVERNMENT OF SINDH through Secretary, Ministry of Transport and 2 others---Defendants

Suit No. 421 of 1991, decided on 14th March, 2019.

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

----S. 1---Fatal accident---Suit for recovery of compensation amount---Burden of proof---Vicarious liability, principle of---Applicability---If an accident/incident resulting in death of a person had not been disputed by the defendant then onus to prove that a person died not because of negligence or wrongful act of defendant would be on the latter and not on the plaintiff---Failure to examine driver of the vehicle involved in an accident would create an adverse presumption against the defendant---Drivers of heavy vehicle were required to take extra care while driving on the roads to prevent any incident---Incident, in the present case, had occurred while overtaking the vehicle in which deceased was travelling with the driver---Accident had occurred due to reckless and negligent driving of defendants---Principle of vicarious liability was applicable and all the defendants were jointly and severally liable to compensate the plaintiffs---Plaintiffs had been deprived of the association and company of one of their family members---Negligent conduct of defendants to forestall such incident in future should be made more expensive in terms of actual damages---Deceased was a young man of 26 years old at the time of fateful accident and life expectancy in his family was 75 years---Life expectancy of victim in the present case could be 70 years, in circumstances---Minimum rates of wages in the year 2016 of an unskilled adult employee in the Province of Sindh was Rs. 16,200/---Plaintiffs had claimed Rs. 5,000,000/- in the year 1991 which would not be adequate in the year 2019 due to devaluation of currency and inflationary trend---Plaintiffs were also entitled to additional sum of Rs. 1,000,000/- towards loss of consortium---Suit was decreed in the sum of Rs. 8,190,000/- as damages with Rs. 1,000,000/- towards loss of consortium with 10% markup per annum from the date of institution of suit till realization of the amount.

Islamic Republic of Pakistan through Secretary Ministry of Defence and others v. Numair Ahmed and 2 others 2015 MLD 1401 ref.

Punjab Road Transport Corporation v. Zahid Afzal and others 2006 SCMR 207; Islamic Republic of Pakistan through Secretary, Ministry of Railways and others v. Abdul Wahid and others 2011 SCMR 1836; Muhammad Razi and another v. Karachi Electric Supply Corporation through Managing Director and another PLD 2017 Sindh 634; Muhammad Sarwar v. Government of Sindh through Secretary and others PLD 2018 Sindh 360; Mushtari v. Islamic Republic of Pakistan through Secretary, Ministry of Planning and Development, Islamabad and 2 others 2006 MLD 19; Mir Hassan v. Master Hammad through his next friend and another 2009 MLD 1443 and Muhammad Younus Khan 3 others v. Karachi Road Transport Corporation and another 1984 CLC 2830 rel.

(b) Maxim---

----"Res ipsa loquitur"---Applicablity---Scope.

Farukh Usman and Aamir Maqsood for Plaintiffs.

Ms. Leela alias Kalapna Devi, Assistant Advocate General, Sindh for Defendants.

2020 M L D 1404

[Sindh (Larkana Bench)]

Before Shamsuddin Abbasi, J

ZULFIQAR ALI and another---Applicants

Versus

The STATE---Respondent

1st Criminal Bail Application No. S-453 of 2019, decided on 7th November, 2019.

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

----S. 498-A---Penal Code ( XLV of 1860), Ss. 302, 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Pre-arrest bail, refusal of---Allegation against the accused persons was that they along with co-accused fired at deceased which hit him and resultantly he died at the spot---Section 498-A, Cr.P.C. could only be invoked, when an accused seeking the concession satisfied the Court on the point of mala fides on the part of complainant /prosecution for false implication in order to save innocent people from their un-justified humiliation and harassment at the hands of police or when no offence was either shown to have been committed or when from the bare reading of FIR, no offence was made out---Accused persons had admitted the dispute over plot in between the parties and the motive was also directed against them---First Information Report had been promptly lodged by complainant---Accused persons came at the place of incident duly armed with pistols and they fired at deceased---Prima facie, sufficient material was available on record to connect the accused persons in the commission of the offence, which fell within the prohibitory clause of S.497, Cr.P.C.---Accused persons had failed to establish their case on the point of mala fide on the part of prosecution therefore, they were not entitled to grant of extraordinary concession of pre-arrest bail---Application was dismissed, in circumstances.

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

----S. 498-A---Pre-arrest bail, grant of---Principles---Provision of pre-arrest bail could only be invoked, when an accused seeking the concession satisfies the Court on the point of mala fides on the part of complainant /prosecution for false implication in order to save innocent people from their un-justified humiliation and harassment at the hands of police or when no offence is either shown to have been committed or when from the bare reading of FIR, no offence is made out.

Safdar Ali Ghouri for Applicants.

Abid Hussain Qadri for the Complainant.

2020 M L D 1407

[Sindh]

Before Abdul Maalik Gaddi, J

Sheikh JUNAID IQBAL---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.449 of 2019, decided on 29th August, 2019.

(a) Sindh Consumer Protection Act, 2014 (XVII of 2015)---

----Ss. 26 & 33---Constitution of Pakistan, Art. 10-A---Filing of claims---Penalties---Fair trial---Non-compliance of the order passed by Consumer Court---Scope---Complainant complained that he purchased two breads from a shop and after eating the same at dinner, he felt some pain in his stomach, resultantly, he started vomiting and could not sleep comfortably during the night---Validity---No report of doctor was available on record to ascertain whether actually the complainant had fallen ill on the said date because of eating such breads---Trial Court had issued certain directions to the accused for compliance within thirty days but after almost two months, when the case was fixed for compliance of aforesaid order, Trial Court had issued notice for non-compliance and its reply was ordered to be submitted within one hour, which was quite unjust and improper as well as against the principle of natural justice and in violation of Art.10-A of the Constitution, which provided fair trial---Complainant had failed to prove its case against the accused beyond shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

(b) Criminal trial---

----Benefit of doubt---Scope---Multiple circumstances creating doubt are not necessary for extending benefit of doubt---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused will entitle the accused to such benefit not as a matter of grace and concession, but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Abdul Shakoor for Appellant.

Ms. Seema Zaidi, Deputy Prosecutor Genral, Sindh along with SIP Muhammad Tariq, P.S. KIA Karachi for the State.

2020 M L D 1417

[Sindh]

Before Mohammad Karim Khan Agha

and Zulfiqar Ali Sangi, JJ

GHULAM SHABBIR alias PAPI-Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Jail Appeal No.107 of 2019, decided on 11th November, 2019.

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

----Ss.392, 353, 324 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Sindh Arms Act (V of 2013), S. 23(i)A---Robbery, assault or criminal force to deter public servant from discharge of his duty, attempt to commit qatl-i-amd, common intention, act of terrorism, unlicensed possession of arms---Appreciation of evidence---Independent witness---Scope---Prosecution case was that a Sub-Inspector along with police party was on patrolling duty when he saw three persons snatching valuables from a person on gunpoint; that accused persons, on seeing the police party, started firing; that during the encounter two accused managed to escape but the appellant/accused was apprehended on the spot and victim narrated that the accused persons had snatched his mobile, wallet and other documents---Complainant/victim, an independent person having no ill-will against the accused, had appeared before the Trial Court, narrated the details of the incident and identified the accused---Sub-Inspector had also narrated the similar details of the incident---Defence taken by accused that he was arrested two days prior to the incident when he refused to give bribe was unbelievable because no application or petition was filed against the police officials---No ill-will or mala fide was suggested against the complainant/victim and other witnesses---Accused had previously remained involved in criminal cases, record of which was produced by Investigating Officer---Appeal against conviction was dismissed.

(b) Criminal trial---

----Evidence of police officials---Scope---Police officials are as good as private witnesses and their testimony cannot be discarded merely for the reason that they are police officials, unless the defence succeeds in denting their statements and proves their mala fide or ill-will against the accused.

Habib-ur-Rehman Jiskani for Appellant.

Muhammad Iqbal Awan, Deputy Prosecutor General, Sindh for the State.

2020 M L D 1428

[Sindh]

Before Irfan Saadat Khan and

Fahim Ahmed Siddiqui JJ

S. SHAFIQUE-UR-REHMAN through LRs.---Appellant

Versus

MINISTRY OF HOUSING AND WORKS

through Secretary, Government

of Pakistan---Respondent

H.C.A. No.189 of 2016, decided on 18th December, 2019.

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

----Art. 100---Civil Procedure Code (V of 1908), O.I, R.10---Suit for declaration and injunction---High Court appeal---Thirty years old document---Presumption---Misjoinder of parties--- Plaintiff claimed to be owner of suit property on the basis of 'Deed of Disclaimer' issued by company---Single Judge of High Court dismissed the suit on ground that original 'Deed of Disclaimer' was not produced and company or its Directors were not made party---Validity---'Deed of Disclaimer' was executed about more than 53 years back and since then none had challenged the same--- Presumption of genuineness, under Art. 100 of Qanun-e-Shahadat, 1984, was attached to a document which was more than 30 years old--- When there was no adverse claim and during such a long period none of the directors or their legal heirs had ever disputed the 'Deed of Disclaimer', therefore, it could be presumed that the document was genuine---'Deed of Disclaimer' was produced in Court by proper party and one of the marginal witness supported the same---Non-existent company and its Directors could not be made party to the litigation---Party to litigation could not be defeated or failed just because of non-joinder of the parties---Company was not in existence as during its life time the company had relinquished its rights over the subject property in favour of plaintiff and the same was evident from the language of the 'Disclaimer Deed'---Intention of the Deed was to pass on the title to plaintiff and had created right of ownership regarding subject property in favour of plaintiff---When no one had challenged the right of plaintiff on suit property there remained no hurdle to declare that the title of suit property in favour of plaintiff was established---Division Bench of High Court set aside the judgment and decree passed by Single Judge of High Court and decreed the suit in favour of plaintiff---High Court Appeal was allowed in circumstances.

Nazir Ahmed v. Karim Bakhsh 2017 SCMR 1934; Allah Dad and 3 others v. Dhuman Khan and 10 others 2005 SCMR 564; Pakistan Railways v. Noor Jahan Begum through LRs 2015 YLR 456; Iftikhar Hussain Khan and 13 others v. Muhammad Gulzar Khan and 5 others 2015 MLD 400 and Muhammad Sadiq v. Muhammad Ramzan and 8 others 2002 SCMR 1821 ref.

Muhammad Vawda for Appellant.

Bilal Khilji, Assistant Attorney General of Pakistan for Respondents.

2020 M L D 1441

[Sindh]

Before Yousuf Ali Sayeed, J

SAEEDUDDIN QURESHI---Plaintiff

Versus

WAQAR SAEED and 3 others---Defendants

Suit No.245 of 2009 and Suit No.1408 of 2013, decided on 30th December, 2019.

West Pakistan Muslim Personal Law (Shariat) Application Act (V of 1962)-

----S. 2---Qanun-e-Shahadat (10 of 1984), Arts. 114 & 128 (1)---Civil Procedure Code (V of 1908), O.VII, R.11 & O.XXII, R.1(1)---Suit for declaration and injunction---Parentage of defendant---Estoppel, principle of---Applicability---Plaintiff denied defendant to be his son---Plaintiff claimed that he and his wife were issueless and defendant was adopted and raised by them who was born to a near relative of his wife---Validity---Plaintiff was not unaware as to the antecedents of defendant's birth or having lacked conjugal access in marital relationship at the time---Plaintiff himself admitted having voluntarily embarked upon a course of conduct over the course of decades embracing and reflecting defendant as his real son, without any reservation, despite he was aware that he was allegedly his wife's nephew---No fraud or forgery was attributed to defendant or any third party and plaintiff was estopped by his own conduct from then disavowing the official status of the defendant---Suit was liable to be rejected but plaintiff wanted to withdraw the same unconditionally---Suit was withdrawn in circumstances.

Ghazala Tehsin Zohra v. Mehr Ghulam Dastagir Khan and another PLD 2015 SC 327 fol.

Muhammad Salam Kazmi for Plaintiff (in Suit No.245 of 2009)/

Khawaja Shams-ul-Islam for Defendant No.1. (in Suit No.245 of 2009).

Khawaja Shams-ul-Islam for Plaintiff (in Suit No.1408 of 2013).

Muhammad Salam Kazmi for Defendant No.1 (in Suit No.1408 of 2013)

2020 M L D 1447

[Sindh]

Before Abdul Mobeen Lakho, J

MUHAMMAD ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.137 of 2017, decided on 2nd March, 2020.

(a) Criminal trial---

----Evidence---Corroboration---Principles---If Court is satisfied about truthfulness of direct evidence, the requirement of corroborative evidence is not of much significance.

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

----S. 302(b)---Qatl-i-Amd---Appreciation of evidence---DNA and Forensic Science Laboratory reports---Corroborative evidence---Blind murder---All prosecution witnesses supported case of prosecution on all aspects and accused could not point out any discrepancy or infirmity to dent the case of prosecution---Accused also failed to prove that there was any enmity because of which prosecution witnesses deposed falsely against him---All prosecution witnesses corroborated each other in all material respect with no major contradictions---DNA report was found to be similar to the blood obtained from accused when compared with the sample of hair found in the cap which was recovered from place of incident---Such evidence provided the strongest corroborative evidence to the testimony of eye witness---Opinion of Forensic Science Laboratory report under microscopic examination was positive and revealed that empty of 9mm which was recovered from place of incident and compared to the pistol secured from accused had similar marks of striker pin; breech face; ejector; and chamber---Appeal was dismissed in circumstances.

Muhammad Ashraf alias Acchu. v. The State 2019 SCMR 652; Suhabat Ali v. The State 2018 MLD 850; Imtiaz alias Taj v. The State and others 2018 SCMR 344; Muhammad Saddique v. The State 2018 SCMR 71; Gul Bahar alias Gulbo alias Ali Gohar and another v. The State 2014 YLR 652; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Zahar Hussain Shah and others v. Shah Nawaz Khan and others 1999 PCr.LJ 1981; Rafaqat Ali and others v. The State 2016 SCMR 1766; Muhammad Akram Rahi and others v. The State and others 2011 SCMR 877; Muhammad Ehsan v. The State 2006 SCMR 1857 and Niazuddin and another v. The State 2011 SCMR 725 ref.

Jamal Ahmed Mufti for Appellant.

Ms. Amna Ansari, Addl. P.G. for the State.

2020 M L D 1455

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

JATOI and 6 others---Applicants

Versus

The STATE---Respondent

Crimianl Bail Application No.S-737 of 2019, decided on 4th February, 2020.

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

----S. 498-A--- Penal Code (XLV of 1860), Ss. 302, 365-B, 337-H(2) 337-A(i), 337-F(i), 147, 148 & 149---Qatl-i-amd, kidnapping, abducting or inducing woman to compel for marriage, hurt by rash and negligent act, shajja-i-hashimah, ghayr-jaifah, rioting, unlawful assembly---Pre-arrest bail, recalling of---Accused had a motive for committing the offence and they had not been able to place on record any material which might suggest that they were implicated falsely in the case---During attack by the accused one innocent person had lost his life---Accused also abducted niece of complainant and she remained in their captivity for about four days and when she escaped from the captivity she came at Police Station where her statement under S.l6l, Cr.P.C, was recorded in which she fully supported the case of prosecution along with specific role of accused which they played at the time of incident---Injuries had been supported by the medico-legal certificate issued by Medical Officer which reflected that the injured were beaten by the accused mercilessly--All the accused had shared their common intention to abduct the niece of complainant in lieu/revenge and during such abduction one person died and five persons received injuries---Less role of any of the accused persons was not considered as a ground of bail, in circumstances---Bail before arrest was meant to protect innocent citizens who had been involved in the heinous offence with mala fide and ulterior motives, the same were lacking in the present case---Offence with which the accused were charged was punishable up to death or imprisonment for life which fell under the prohibitory clause of S.497, Cr.P.C---Accused were specifically nominated in thę FIR with their specific roles and participation---Motive had been admitted by the accused party---Deeper appreciation of evidence was not permissible at the bail stage and material was to be assessed tentatively---Accused had failed to make out their case for grant of pre-arrest bail---Bail application was dismissed and interim pre-arrest bail already granted to the accused was recalled, in circumstances.

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

----S. 498-A---Penal Code (XLV of 1860), Ss. 302, 365-B, 337-H(2) 337-A(i), 337-F(i), 147, 148, 149---Qatl-i-amd, kidnapping, abducting or inducing woman to compel for marriage etc, hurt by rash and negligent act, shajja-i-hashimah, ghayr-jaifah, rioting, unlawful assembly---Pre-arrest bail, grant of---Considerations for---Pre-arrest bail is an extraordinary relief which cannot be granted in every case as each case has its own facts and circumstances---Consideration of pre-arrest bail is altogether different than that of post-arrest bail---Persons seeking bail are duty-bound to establish and prove mala fide on the part of the investigating agency or by the complainant.

Shamsuddin N. Kobhar for Applicants.

Nawab Ali Pitafi for the Complainant.

Abdul Rehman Kolachi DPG for the State.

2020 M L D 1466

[Sindh]

Before Abdul Mobeen Lakho, J

SAMIULLAH---Applicant

Versus

The STATE---Respondent

Bail Application No.173 of 2020, decided on 26th February, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 395, 452 & 34---Dacoity, house trespass after preparation for hurt, assault, or wrongful restraint and common intention---Bail, grant of---Delay in lodging FIR---Applicant/accused not nominated in FIR---Further inquiry---Complainant went to the police station after about 5 hours of the alleged occurrence, the delay of 5 hours was not explained though the police station was in the city---Accused would be deemed to be innocent until and unless guilt was proved and mere registration of number of cases against him, without conviction, was no ground for withholding grant of bail---Delay in lodging of FIR provided sufficient time for deliberation and consultation, for which the complainant had given no explanation, which made the case of accused one of further inquiry---Admittedly, accused had not been nominated in the FIR---No direct evidence was available with the complainant against accused---Evidentiary status of the alleged disclosure/recovery could be seen and determined by the Trial Court after recording of evidence---Further detention of accused would not serve any useful purpose because the challan had been submitted in the Trial Court, which was at initial stage---In absence of any exceptional circumstances, grant of bail to an accused was a right and refusal an exception---Accused was granted bail, in circumstances.

Zulfiqar Ali Sheikh for Applicant.

Fahim Hussain Panhwar, DPG for Respondent.

2020 M L D 1473

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

ASGHAR ALI RAJPUT---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-699 of 2019, decided on 6th January, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 103---Penal Code (XLV of 1860), Ss. 337-J, 269, 272---Causing hurt by means of a poison, negligent act likely to spread infection of disease dangerous to life, adulteration of food or drink intended for sale---Pre-arrest bail, confirmation of---Further inquiry---Recovery of two packets of Z-21 Gutka---Record reflected that complainant on spy information arrested the accused and recovered the alleged Gutka from the cabin alleged to be owned by him---Police had ample time to arrange private persons to associate them as witnesses in the recovery proceedings as there was no apprehension of escape of the accused, complainant, however, failed to do so which made the recovery doubtful---Prosecution also failed to establish presence of any customer during investigation to show that the accused was selling Gutka---Applicability of S.337-J, P.P.C., was to be determined by the Trial Court after recording evidence of prosecution witnesses---While deciding bail application lesser punishment provided in the law was to be considered---Section 337-J, P.P.C. provided the punishment for a term which might extend to ten years---Word "may" used in the provision provided discretion to the Court in punishing the accused found guilty after complete trial---Keeping in view the above punishment provided in S.337-J, P.P.C., the offence as alleged against the applicant did not fall within the ambit of S.497(1), Cr.P.C.---Grant of bail in such cases was rule and refusal was an exception---Interim pre-arrest bail already granted to the accused was confirmed, in circumstances.

Rana Hafiz Tanveer Ahmed for Applicant.

Syed Sardar Ali Shah, Deputy Prosecutor General for the State.

2020 M L D 1488

[Sindh]

Before Ahmed Ali M. Shaikh, C.J.

and Omar Sial, J

Syed QAMAR ALI---Petitioner

versus

CHAIRMAN, NATIONAL ACCOUNTABILITY

BUREAU, ISLAMABAD and 2 others---Respondents

Constitutional Petitions Nos.D-4252 and 5835 of 2017, decided on 2nd May, 2019.

National Accountability Ordinance (XVIII of 1999)---

----S. 9---Constitution of Pakistan, Art. 199---Corruption and corrupt practices---Sales tax claim---Pre-arrest bail, confirmation of---Defective investigation---Scope---Prosecution case was that the accused persons, being Inspectors of Federal Board of Revenue, submitted false physical verification reports regarding three manufacturing units which enabled three businesses to register under the sales tax laws and subsequently claimed sales tax refunds---No evidence was available to establish that the accused persons were beneficiaries of the ill-gotten money---Prosecution had yet to establish whether the sales tax refund claims were false or genuine---Investigating Officer had not even once visited the business premises during the course of inquiry or investigation---Fundamental Right of freedom and movement of the accused persons could not be curtailed on a mere unsubstantiated allegation that the manufacturing units did not exist---Ad-interim pre-arrest bail already granted to the accused persons was confirmed, in circumstances.

Abbas Rasheed Rizvi for Petitioner (in C.P. No.D-4252 of 2017).

Muhammad Jamil for Petitioner (in C.P. No.D-5835 of 2017)

Niaz Hussain Meerani, Special Prosecutory NAB along with I.O. Sarmad Abbas.

2020 M L D 1515

[Sindh]

Before Mohammad Karim Khan Agha

and Zulfiqar Ali Sangi, JJ

MUHAMMAD SOHAIL and 2 others---Appellants

versus

The STATE---Respondent

Special Criminal A.T. Jail Appeal No.137 of 2017, decided on 19th November, 2019.

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

----Ss. 365-A & 34---Anti Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abducting for extorting property, valuable security, etc., common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused persons were charged that they kidnapped the son of complainant for ransom---Record showed that FIR had been lodged by the complainant without any reasonable delay in a case of kidnapping for ransom and as such there was no time to concoct a false case---Eyewitness, who had seen the abductee being kidnapped by the accused persons, was not a chance witness---Eyewitness was working in the same company as of the abductee and as they lived in the same area, there was every reason for them to be travelling on motor bikes near each other when the kidnapping took place whilst they were on their way home---Evidence of eyewitness about the kidnapping was relayed timely to the complainant which was reproduced by the complainant in his evidence---Eyewitness did not give any 'hulia' or description of the accused persons because he was too far away (35/40 metres) hence the FIR lodged by the complainant/father also did not give any 'hulia' or description of the accused persons as it was based on the evidence provided to him by that eyewitness, who saw the accused persons abducting the abductee by force---Eyewitness's evidence regarding the kidnapping was also corroborated by the abductee who was later recovered by the police---Witness had no enmity with the accused persons and had no reason to falsely implicate them---Witness was unscathed during cross-examination and as such his evidence was believable---Complainant corroborated the evidence of eyewitness as to how he came to know of the kidnapping and the lodging of the FIR---Complainant was present when the police arrested the accused persons on the spot at the time when he was meant to pay ransom to them---Accused persons having been arrested on the spot, the question of wrongful identification did not arise---Mobile of abductee which had been used to make the ransom demand was also recovered from the accused in the presence of complainant, which corroborated the ransom calls---Complainant did not know the accused persons and had no reason to falsely implicate them in the case---Official witness/Inspector, who arranged with the complainant the plan to pay the ransom and then he would arrest the accused persons if they arrived also had reliable people from the Citizens Police Liaison Committee with him---Evidence of said witness was fully corroborated by the complainant regarding the events leading up to the arrest of the accused persons when they were demanding the ransom from the complainant---Said witness had no enmity with the accused persons and no reason to falsely implicate them in the case---Accused, immediately on their arrest, admitted the kidnapping and straight away took the police and the complainant to the house where the abductee was being held and was recovered---House where two accused persons took the police, co-accused was found guarding the abductee and was arrested on the spot---Rope used to tie the abductee was also recovered from where he was being held captive---No major contradictions in the evidence of the witnesses of any materiality was found such as to throw any doubt on the prosecution case---Prosecution evidence was consistent in all material respects and fully supported the prosecution case from start to finish by an unbroken chain of evidence linking the accused persons to the kidnapping of the abductee to the recovery of the abductee---Evidence of all the key witnesses found to be reliable, trustworthy and confidence inspiring---Circumstances established that the prosecution had been able to prove its case against the accused persons beyond reasonable doubt---Appeals against conviction were dismissed accordingly.

The State v. Farman Hussain PLD 1995 SC 1 ref

Muhammad Ehsan v. The State 2006 SCMR 1857 rel.

(b) Criminal trial---

----Witness---Testimony of police official---Scope---Police witnesses were as reliable as any other witness provided that no ill will, mala fide or personal interest was alleged against them.

Riaz Ahmad v. State 2004 SCMR 988; Zafar v. State 2008 SCMR 1254 and Abbas v. State 2008 SCMR 108 rel.

(c) Criminal trial---

----Witness---Testimony of related witness---Reliance---Scope---Just because the witnesses were related, was no reason to disregard their evidence, especially where no enmity, ill will or personal interest had been shown to exist between the accused persons and the interested witnesses.

Junaid Rehman v. State PLD 2011 SC 1135 rel.

(d) Criminal trial---

----Prosecution case--- Minor contradiction--- Scope--- Minor contradictions in the prosecution case would not be of any significance.

Zakir Khan v. State 1995 SCMR 1793 rel.

Mohammad Hussain Shah for Appellants.

Muhammad Iqbal Awan, Deputy Prosecutor General for the State.

2020 M L D 1523

[Sindh]

Before Nazar Akbar, J

ABDUL HAYEE---Petitioner

Versus

Mst. HALEEMA and another---Respondents

Constitutional Petition No.1178 of 2019, decided on 19th February, 2020.

Family Courts Act (XXXV of 1964)---

----Ss. 17-A & 14---Suit for maintenance---Interim order---Scope---Petitioner assailed by Constitutional petition, order passed by Judge Family Court whereby he, on an application under S.17-A of Family Courts Act, 1964, was directed to pay maintenance to the respondent/wife till she rejoined him---Validity---Interim order was not an appealable order---Legislature, while denying the appeal against interim order, did not mean that the aggrieved person could approach the High Court under Art.199 of the Constitution and against final order could file an appeal before the court subordinate to the High Court---Entertaining a constitutional petition in ordinary case against interim order, which was neither without jurisdiction nor contrary to law, would defeat the very purpose of not providing appeal against interim order---Aggrieved party had to wait for final order and after final order, he could impugn both the interim and final order in appeal before the appellate court---Constitutional petition was dismissed.

Shamshad Khan and another v. Arif Ashraf Khan and 2 others 2008 SCMR 269 rel.

Parvez Ahmed Memon for Petitioner.

2020 M L D 1534

[Sindh]

Before Mohammad Karim Khan Agha

and Zulfiqar Ali Sangi, JJ

AFSAR KHAN---Appellant

Versus

The STATE---Respondent

Special ATA Appeal No.363 and Confirmation Case No.11 of 2017, decided on 28th November, 2019.

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

----Ss. 302 & 34---Anti Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay of forty hours in lodging the FIR---Effect---Accused were charged for committing murder of the brother of complainant by firing---Record showed that there had been an unexplained delay of forty hours in registering the FIR against unknown persons---Opportunity therefore existed to concoct a false case against the accused---Complainant was a serving Police Officer and would have known well that such a delay could be fatal to a case---Appeal against conviction was allowed, in circumstances.

Mehmood Ahmed v. State 1995 SCMR 127 rel.

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

----Ss. 302 & 34---Anti Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Chance witness---No justification for the witnesses to be present at the place of occurrence---Un-natural conduct of eyewitnesses---Effect---Accused were charged for committing murder of the brother of complainant by firing---Ocular account had been furnished by two eyewitnesses---Evidence of the eyewitnesses was that they were going to view a plot when the incident took place in their presence---Said witnesses had given no proof that they visited any plot by giving plot number or the Real Estate Agent they were dealing with or even the registration number of the motor bike which they were riding on---Witnesses thus, had not given sufficient reasons for being at the place of the incident when it allegedly occurred and as such they were found to be chance witnesses---Two days after witnessing the incident said witnesses again just happened to be going to view a plot without giving any evidence as to which plot and who their Real Estate Agent was when they came across the Investigating Officer of the case inspecting the place of the incident about one hour after the FIR had been lodged and offered themselves as eyewitnesses to the police---Such a co-incidence was hard to believe---Said two eyewitnesses then in the evening gave their statements under S.161, Cr.P.C. to the police two days after the incident---Eyewitnesses did not appear to have given any hulia (description) in their said statements and generally had stated that they could identify the accused if they see them again which could not be regarded as a safe way to identify an accused to whom you did not know before or had not seen before the incident and only had seen their brief glimpses---Eyewitnesses had also not stated as to how far the accused was from the deceased when the accused shot him which was an important piece of evidence as according to the medical evidence the shot was fired by the accused from within 2-3 feet because blackening was present on the wound according to the evidence of Medical Officer who carried out the post mortem of the deceased---Evidence regarding the conduct of the eyewitnesses at the time of the incident also did not appeal to logic, common sense or accord with natural human behaviour, namely that they witnessed the deceased being shot on a quiet road and then when the murderers had left by motor bike they did not come forward to help the deceased who according to the evidence of some other witnesses was injured and not dead after being shot as he was later taken by rickshaw to a hospital where he expired---Circumstances established that the evidence of eyewitnesses was not reliable, trustworthy or confidence inspiring and harboured severe doubts that the said eyewitnesses were present at the scene of the incident---Even if they were present, their identification of the accused persons could not be relied---Appeal against conviction was allowed, in circumstances.

Ghulam Hussain, Muhammad Azeem, etc. Tanvir Sikandar Hayat v. The State in Criminal Appeals No.95 and 96 of 2019 dated 30.10.2019, Kareem Nawaz Khan v. The State 2019 SCMR 1741; Waris Ali and 5 others v. The State 2017 SCMR 1572; Dilawar Mehmood alias Dulli and another v. The State and others 2018 SCMR 593; Tahir Mehmood alias Achoo v. The State and another 2018 SCMR 169; Shahzad alias Pakora and others v. The State 2018 P.Cr.LJ 396; Sameer v. The State 2018 PCr.L.J Note 128; Sikandar alias Sani v. The State 2018 MLD 1220; Abdul Karim alias Patni and another v. The State 2018 PCr.LJ 1358; Zubair Ahmed alias Ladu v. The State 2018 YLR Note 160; Aqeel Ahmed alias Tiloo v. The State 2018 PCr.LJ Note 12; Abdur Rehman and another v. The State and another 2018 YLR 1629; Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Nawaz and another v. The State and others PLD 2005 Supreme Court 40; Muhammad Pervez and others v. The State and others 2007 SCMR 670; Ghulam Mustafa v. The State 2009 SCMR 916; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Liaquat Ali v. The State 2008 SCMR 95; The State v. Syed Mustafa Abbas and 5 others 1986 PCr.LJ 1283; Akhtar Ali and others v. The State 2008 SCMR 6; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Noor Muhammad v. The State and another 2010 SCMR 97; Ahmed Khan and 2 others v. The State 2018 YLR 1515; Muhammad Asif v. The State 2017 SCMR 486; Muhammad Nawaz v. The State 2016 PCr.LJ Note 72; Muhammad Javed and another v. The State and another 2019 YLR Note 1; Asmatullah and others v. The State 2018 PCr.LJ 1042; Aftab Ahmad v. The State 2004 MLD 1337; Fareed Ahmed Langra v. The State 1998 PCr.LJ 1368; Salman alias Lamba and another v. The State 2018 YLR 1092; Siraj Ahmed v. The State 2011 PCr.LJ 48; Muhammad Jamshaid and another v. The State and others 2016 SCMR 1019; Sher Ali v. The State through Advocate General Khyber Pukhtunkhwa 2018 YLR 1836; Muhammad Ilyas v. Muhammad Abid alias Billa and others 2017 SCMR 54; Dr. Syed Muhammad Khalid Moin and 3 others v. The State PLD 2004 Kar. 687; Mst. Dur Naz and another v. Yousuf and another 2005 SCMR 1906; Zakir Khan and others v. The State 1995 SCMR 1793; Wilayat Ali v. The State 2004 SCMR 477 and Anwar Shamim and another v. The State 2010 SCMR 1791 ref.

Tasirullah v. The State 2018 YLR Note 182; Javed Khan v. State 2017 SCMR 524 and Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 956 rel.

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

----S. 161---Delay in recording statement of witness by police---Effect---Delay in giving statement under S.161, Cr.P.C. could be fatal.

Asif Khan v. The State 2018 YLR 661 rel.

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

----Ss. 302 & 34---Anti Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Delay in recording the statement of witnesses under S.164 Cr.P.C.---Effect---Accused were charged for committing murder of the brother of complainant by firing---Record showed that the statement of eyewitnesses was recorded under S.164 Cr.P.C. before the concerned Magistrate after an unexplained delay of over nine months---Said statements of the eyewitnesses were recorded eight days after the arrest of the accused and also contained some hulia of the accused who was present when their said statements were recorded where his absence from the scene of the incident was suggested to the eyewitnesses during their cross-examination---Based on said chronology of events it could not be ruled out that the accused was shown to the eyewitnesses before recording their statements under S.161, Cr.P.C.---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302 & 34---Anti Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---No identification parade was conducted---Effect---Accused were charged for committing murder of the brother of complainant by firing---Accused was not known to the eyewitnesses and the eyewitnesses only got a glimpse of the accused at the time of the incident who were moving quickly on motor bikes---Safer course in determining the correct identification of the accused was to hold identification parade---Prosecution had not explained as to why identification parade was not held in order to identify the accused---Appeal against conviction was allowed, in circumstances.

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

----Art. 38---Admission by accused before police---Scope---Accused's admission before the police was inadmissible in evidence and had no legal value.

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

----Ss. 302 & 34---Anti Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Circumstantial evidence---Scope---Accused were charged for committing murder of the brother of complainant by firing---No empty was recovered from the scene of the incident---No weapon was recovered from the accused---Prosecution had not satisfactorily proved that the accused had a motive to murder the deceased because of his being a polio worker---No ill-will or enmity between the accused and the deceased which would give the accused a motive to murder the deceased was proved by the prosecution---No circumstantial evidence against the accused was on record---Appeal against conviction was allowed, in circumstances.

Azeem and another v. Mujahid Khan and others 2016 SCMR 274 and Wazir Muhammad and another v. The State 2005 SCMR 277 ref.

(h) Criminal trial---

----Benefit of doubt---Principle---If there was a single circumstance, which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to its benefit not as a matter of grace and concession but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 and Abdul Jabbar v. State 2019 SCMR 129 rel.

Syed Mehmood Alam Rizvi and Zakir Laghari for Appellants.

Zafar Ahmed Khan, Additional Prosecutor General, Sindh for the State.

2020 M L D 1571

[Sindh]

Before Yousuf Ali Sayeed, J

Messrs SPECTRUM DEVELOPMENTS

(PRIVATE) LTD. through Director---Plaintiff

Versus

PAKISTAN DEFENCE OFFICERS

HOUSING AUTHORITY (PDOHA) through

Administrator---Defendant

Suit No.1202 of 2006, heard on 20th April, 2018.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Suit for declaration and injunction---Maxim, 'omnia praesumuntur rite esse acta'---Applicability---Verbal cancellation of plot by Executive Board of Housing Socieity---Change in location of plot--- Plaintiff company was aggrieved of alteration or substituting location of the plot allotted to it by Defence Housing Authority---Validity---Factum of allotment in favour of plaintiff on the basis of documents produced in evidence stood established---Such allotment proceeded on the basis of sanction from Executive Board of Housing Authority---Until the contrary was proved, presumption of regularity would arise that all necessary formalities for performance of such official act had been complied with as expressed in terms of maxim omnia praesumuntur rite esse acta---High Court declared that verbal cancellation of allotment made in respect of suit property in favour of plaintiff by Executive Board of defendant Authority was contrary to the principles of natural justice and was devoid of any legal effect---Suit was decreed accordingly.

Jamal Nasir v. Karachi Development Authority (K.D.A.) and others 2004 CLC 15; Munir Ahmad Ghulam Muhammad Akhtar v. Pakistan Defence Officers Housing Authority 2004 YLR 2047; Shamim Khan v. Pakistan Defence Officers Housing Authority through Secretary 1999 YLR 410; Khan Iftikhar Hussain Khan of Mamdot (Represented by 6 Heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550 and Morris Tanvir v. Federation of Pakistan through Secretary Ministry of Defence, Islamabad and 2 others 2009 CLC 1199 ref.

Muhammad Vawda for Plaintiff.

Raja Sikandar Khan Yasir for Defendant.

2020 M L D 1599

[Sindh]

Before Mohammad Karim Khan Agha

and Zulfiqar Ali Sangi, JJ

SHAHID ISRAN---Appellant

Versus

The STATE through Prosecutor General---Respondent

Criminal Appeal No.343 and Confirmation Case No.8 of 2016, decided on 21st November, 2019.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Independent witness---Recovery of weapon---Non-production of complainant---Scope---Prosecution case was that when the deceased, complainant and his driver were going towards the bus stop to drop the accused and acquitted co-accused in a car, the accused shot the deceased in the neck and fled away---Driver had reported the incident to the police within 45 minutes---Driver was a natural and independent witness---Driver had given evidence that the accused who was sitting in the back of the car had shot the deceased in the neck---Evidence of driver was corroborated by medical evidence---Empty which was recovered from the car had matched with the pistol recovered from the possession of accused---Diary sheet of the Trial Court showed that the accused had admitted his involvement in the crime---Non-production of complainant was not enough to detract from the evidence of driver, the corroboratory medical evidence and other supportive evidence, even if an adverse inference was drawn---Prosecution had neither alleged any motive against the accused nor had it proven the same-High Court, while taking into account that no motive was proved and that there were some doubts in the prosecution case albeit insufficient to lead to an acquittal, reduced the sentence of death to imprisonment for life.

Muhammad Sharifan Bibi v. Muhammad Yasin 2012 SCMR 82; Muhammad Asif v. The State 2017 SCMR 486; Farman Ahmed v. Muhammad Inayat 2007 SCMR 1825; Zafar v. The State 2018 SCMR 326; Khalid @ Khalidi v. The State 2012 SCMR 327; Muhammad Javed v. The State 2016 SCMR 2021; Akhtar Ali v. The State 2008 SCMR 6; Muhammad Ehsan v. The State 2006 SCMR 1857; Nizamuddin v. The State 2010 SCMR 1752 and Zakir Khan v. State 1995 SCMR 1793 ref.

Ghulam Mohyuddin v. State 2014 SCMR 1034 rel.

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

----S. 302---Qatl-i-amd---Motive not proved---Alternate sentence---Scope---Where the prosecution fails to prove the motive for the murder the court is justified in imposing the alternate sentence of life imprisonment as opposed to the death penalty.

Amjad Shah v. State PLD 2017 SC 152 rel.

Jehangir Rahujo for Appellant.

Muhammad Akbar Khan for the Complainant.

Muhammad Iqbal Awan, Deputy Prosecutor General for the State.

2020 M L D 1607

[Sindh (Hyderabad Bench)]

Before Nadeem Akhtar, J

SAIN BUX through Legal Heirs

and 5 others---Applicants

Versus

NADIR ALI and 13 others---Respondents

Revision Application No.12 of 2017, decided on 24th April, 2020.

Civil Procedure Code (V of 1908)---

----O. VII, R. 11 & S. 12(2)---Consent decree---Subsequent suit with regard to same subject matter---Fraud and misrepresentation---Plaint, rejection of---Scope---Suit for specific performance of contract and permanent injunction having been filed, during pendency of said suit another suit on the same subject was filed---Compromise in the earlier suit was effected and resultantly compromise decree was passed in the same---Defendant in the subsequent suit filed application for rejection of plaint which was accepted by the Trial Court but Appellate Court remanded the matter for decision afresh after recording evidence of the parties---Validity---Held, sale deed with regard to suit property had been executed and registered in favour of defendant---Plaintiffs should have amended their plaint seeking cancellation of said registered sale deed but they had failed to do so---Plaintiffs had not filed application for consolidation of their suit with the earlier suit---Plaintiffs should have challenged the consent decree if same was collusive and illegal---Plaintiffs had not availed the said remedy and they allowed consent decree to attain finality---If consent decree in the earlier suit had been obtained through fraud and misrepresentation then plaintiffs should have filed an application under S.12(2) of C.P.C. but no such application had been moved on their behalf---Plaintiffs had failed to avail proper remedies available to them under the law, in circumstances-Registered sale deed with regard to suit property in favour of defendant and consent decree passed in the earlier suit were still in field and had attained finality---Relief of specific performance with regard to same suit property could not be granted in favour of plaintiffs, in circumstances---Plaintiffs were not parties in the suit in which consent decree had been passed but no second decree could be passed with regard to same subject matter without first setting aside the said consent decree---Plaintiffs could not claim at belated stage that said consent decree was not binding on them---Relief of specific performance being discretionary in nature could not be granted in favour of plaintiffs and they could claim damages in their suit but they did not choose to do so---Suit filed by the plaintiffs could not succeed in any manner and under any circumstances---Impugned judgment passed by the Appellate Court was set aside and order of Trial Court was restored---Plaintiffs would be at liberty to seek damages if so advised and permissible under the law---Revision was allowed, in circumstances.

Imdad Ali, R. Unar for Appellant.

Anwar A. Khan for Respondents Nos.1 to 11.

Zafar Iqbal Seenhro for Respondent No.12.

Respondent No.13 (called absent).

Respondent No.14 (called absent).

Respondent No.15 (called absent).

2020 M L D 1614

[Sindh]

Before Abdul Maalik Gaddi, J

KHAMISO alias JOGI and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No.268 of 2015, decided on 28th May, 2019.

Criminal Procedure Code (V of 1898)---

----S. 426----Suspension of sentence pending appea1---Discretionary jurisdiction---Scope---Accused persons sought suspension of their sentences handed down by the Sessions Judge under S.302(b), P.P.C.---Appeal had been admitted to regular hearing and its hearing could take some time---Apparent defects in the impugned judgment could not be ignored, which went to the root of the case---Deeper appraisal of evidence, while hearing an application under S.426, Cr.P.C, was to be avoided---Appellate Court's discretion to grant bail under S.426, Cr.P.C., was not fettered or restricted by reference either to the conviction or to the sentence passed against the applicants/accused persons by the Trial Court, but like all discretions vested in the court, the discretion had to be exercised judicially---High Court suspended the sentences awarded to the accused persons during pendency of appeal.

Altaf Hussain Shah v. The State 1986 PCr.LJ 2202; Abdul Ghaffar v. Anwar ul Hassan 1978 SCMR 149; Haji Mir Aftab v. The State 1979 SCMR 320;Maqsood v. Ali Muhammad and another 1971 SCMR 657; Hazrat Ullah v. The State 1979 PCr.LJ 1104 and Maqsood Ahmed v. State 2005 YLR 1049 ref.

Abdullah Khan v. Karam Dad Khan and another 1986 SCMR 1064 and Faqir Muhammad v. Akbar 1979 SCMR 270 rel.

Muhammad Akbar Khan for Appellants.

Abdul Haleem for the Complainant.

Zahoor Shah, Deputy Prosecutor General, Sindh for the State.

2020 M L D 1616

[Sindh (Sukkur Bench)]

Before Aftab Ahmed Gorar, J

KHUSHI MUHAMMAD---Applicant

Versus

The STATE through Deputy Prosecutor-General, Sukkur and 8 others---Respondents

Criminal Revision Application No.S-27 of 2011, decided on 15th November, 2019.

Criminal Procedure Code (V of 1898)---

----S. 203---Dismissal of complaint---Dispute of civil nature---Scope---Applicant assailed order passed by Special Judge, Anti-Corruption, whereby his direct complaint was dismissed under S.203, Cr.P.C.---Applicant had sought cognizance in the case by alleging that fraud was committed by Mukhtiarkar and Tapedar in collusion with the respondents---Sale deed on the basis of which the applicant had claimed his right over the property was disbelieved by the competent civil court and the same was declared as null and void---Applicant had failed to produce material which constituted any offence allegedly committed by the respondents---Dispute between the parties was purely of civil nature but the applicant in order to create harassment and pressure over the respondents had filed the direct complaint and had tried to convert the civil litigation into criminal---Revision application was dismissed, in circumstances.

Rafique Bibi v. Muhammad Sharif and others 2006 SCMR 512 and Muhammad Fiaz Khan v. Ajmer Khan and another 2010 SCMR 105 distinguished.

A.M. Mobeen Khan for Applicant/Complainant.

Aijaz Ahmed Naich for Private Respondent No.4.

Syed Sardar Ali Shah, DPG for the State

2020 M L D 1629

[Sindh (Hyderabad Bench)]

Before Fahim Ahmed Siddiqui, J

MUHAMMAD SOHAIL and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeals. Nos. S-24, S.-34 and S-35 of 2019, decided on 31st May, 2019.

(a) Gas (Theft Control and Recovery) Act (XI of 2016)---

----Ss. 4 & 5(5)---Prevention of Corruption Act (II of 1947), S. 5(2)---Penal Code (XLV of 1860), Ss. 462-C, 462-F, 109 & 161---Theft of natural gas, damaging or destructing the transmission or transportation line, abetment, Public servant taking gratification other than legal remuneration in respect of an official act, illegal gratification---Appreciation of evidence---Jurisdictions of Anti-Corruption Court/Gas Utility Court---Scope---Prosecution case was that the accused/appellants and the absconding accused were responsible for gas theft---Co-accused, one of the officials of Gas Company, had direct nexus in such gas theft under some monetary benefit as illegal gratification---Record showed that the Gas (Theft Control and Recovery) Act, 2016 was promulgated just six days prior to lodging the FIR in 2016---Record reflected that initially the FIR was lodged as an ordinary offences of theft but since in the final report, the name of co-accused, an employee of Gas Company, was mentioned as one of the accused, therefore, the Judicial Magistrate returned the charge sheet to Investigating Officer for producing the same before the Anti-Corruption Court---One of the accused was public servant, as such, in case of illegal gratification and corruption, the trial court/Anti-Corruption Court might have jurisdiction and the private persons, involved in such offence, could also be tried with the official accused before the same court---High Court observed that entire investigation conducted by the Federal Investigation Agency (FIA) was focused on the theft of gas, as such, no credible evidence could be collected regarding taking illegal gratification, however, it was quite comprehensible that theft of natural gas from main distribution line in such a huge quantity could not be possible without some assistance, abetment or at least negligence of the staff of Gas Company as such, it would be more appropriate that all the accused should have been tried before the Gas Utility Court---Section 4 of the Gas (Theft Control and Recovery) Act, 2016, showed that the Gas Utility Court had an exclusive jurisdiction to try all cases pertaining to the said Act---Section 5(5) of the Gas (Theft Control and Recovery) Act, 2016, had placed an embargo and ousted the jurisdiction of all other courts---Circumstances established that the impugned judgment pronounced by the Anti-corruption Court was a judgment which was the result of a trial coram non judice, hence, the same was regarded as a nullity and set aside---Case was remanded to the Gas Utility Court for de novo trial from the stage of charge.

(b) Jurisdiction---

----Conferment of---Scope---Conferment of jurisdiction was a legislative function and it could neither be conferred with the consent of the parties nor by the Superior Court---If the Court passed an order or judgement without having jurisdiction over the matter, the same would amount to nullity as the matter would go to the root of the cause---Question of lacking of jurisdiction could be raised at an stage of the proceedings and even before the appellate court---Findings of a court or tribunal would become irrelevant, rather unenforceable / inexecutable, once the forum was found to have no jurisdiction over the subject-matter---Law did not permit any court/tribunal / authority/forum to usurp jurisdiction on any ground, whatsoever, in case such an authority did not have jurisdiction on the subject-matter.

Muhammad Hassan Jakhro for Appellant (in Criminal Appeal No.S-24 of 2019)

Syed Shazad Ali Shah, for Appellant (in Criminal Appeal No.S-34 of 2019).

Riazat Ali Sahar for Appellant (in Criminal Appeal No.S-35 of 2019).

Aslam Pervaiz, A.A.G. for Federal Government.

Shahid Ahmed Shaikh, Deputy Prosecutor General, Sindh.

2020 M L D 1655

[Sindh]

Before Muhammad Faisal Kamal Alam, J

MUHAMMAD AZAM MASOOD---Plaintiff

Versus

MUHAMMAD RAUF through L.Rs. and 11 others---Defendants

Suit No.87 of 2010, decided on 31st January, 2020.

Partition Act (IV of 1893)---

----S.2---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120--- Partition of immovable property---Gift---Onus to prove---All parties were legal heirs of the deceased owner of the suit property and the same was mutated in their names--- Two defendants objected to partition of the property on the plea that they were owners in possession on the basis of gift deed executed by their mother---Validity---Suit property was never validly transferred in the name of deceased mother---No one could transfer a better title to other persons than what he had---Deceased mother was not an owner of the suit property therefore, she could not have gifted the same to anyone, including defendants---When a gift was seriously challenged and questioned by other interested parties, particularly the other legal heirs, then the onus to prove the same was on the donee--- Defendant did not examine two attesting witnesses of alleged gift deed to corroborate the version of defendant---Non-examination of two attesting witnesses had weakened the case of defendants who had failed to discharge burden of proof about a valid gift in their favour---High Court directed that unpaid utility bills or any other levy, tax, including property tax in respect of suit property were liability of objectors, as they were in possession of suit property and the same would be paid by them--- Suit was decreed accordingly.

Ghulam Nabi v. Farrukh Latif 1986 SCMR 1349; Ghulam Haider v. Mst. Rasoolan 2001 MLD 1603; Muhammad Asghar v. Muhammad Ashraf 2006 YLR 1166; Shahid Hussain v. Lahore Municipal Corporation PLD 1981 SC 474; Badar Zaman v. Sultan 1996 CLC 202; Agra Cooperative Housing Society Limited v. Syed Akhtar Ali and others 1994 MLD 1747; Muhammad Moslemul Haque v. Commissioner of Income-Tax, East Pakistan PLD 1963 Dacca 175; Abdul Majid v. Syed Muhammad Ali Shamim and 10 others 2000 SCMR 1391; Messrs Taj Construction Company v. Federation of Pakistan and 9 others PLD 1982 Kar.378; Muhammad Farooq Marfani v. Abdul Qadir Tawakal and 7 others PLD 2004 Kar. 595; Barkhurdar v. Muhammad Razzaq PLD 1989 SC 749; Muhammad Ibrahim through Attorney v. Province of Sindh through Chief Secretary, Government of Sindh, Sindh Secretariat, Karachi and 6 others 2018 MLD 1099; Tahir Hussain and others v. Ilyas Ahmad and others 2014 SCMR 1210; [Major (R) Pervez Iqbal v. Muhammad Akram Almas 2017 SCMR 831 ref.

Unreported judgment in C.P. Nos. D-904 of 1991 and 898 of 1992 distinguished.

Rab Nawaz and others v. Ghulam Rasul. 2014 SCMR 1181; Khaliqdad Khan and others v. Mst. Zeenat Khatoon and others Khan case 2010 SCMR 1370 and Abdul Sattar and others v. Muhammad Ashraf and others 2008 SCMR 1318 rel.

Ikram Siddiqui for Plaintiff.

Moulvi Iqbal Haider for Defendant No.1

Mehmood Habibullah for Defendant No.3.

Syed Hassan Jafri for Defendant No.6.

Nemo. for Defendants Nos. 2, 4, 5, 7 to 12.

2020 M L D 1676

[Sindh]

Before Mohammad Karim Khan Agha

and Zulfiqar Ali Sangi, JJ

ALTAF AHMED---Appellant

Versus

NATIONAL ACCOUNTABILITY BUREAU (The STATE) ---Respondent

Criminal Accountability Appeal No.05 of 2018, decided on 6th April, 2020.

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

----Ss. 15, 25 & 32---Appreciation of evidence---Prosecution case was that the accused being contractor of TMA received payment of Rs.1,942,789/- from the account of TMA on the basis of bogus quotation vouchers---Accused also received an amount of Rs.16,338,871/- for which no vouchers/documents/bills had been recovered and said amount of Rs.18,281,660/- was illegally deposited in his personal account maintained by two banks, thus accused had acted illegally and caused loss to the Government exchequer---Record showed that during the cross-examination, the payments were not denied by the accused that the same were not issued or the same were not received by the accused---Prosecution witness exhibited the vouchers/bills quotations and the payments slips in the name of accused so also the applications moved by the accused for release of the payments with his signature---During cross-examination of the witness, accused did not challenge the same as being bogus and not belonging to him or someone else used his name---Accused had negated the suggestion that the said account was not opened by and operated by him---Documents produced by the witness showed that copy of CNIC and the photograph of the accused appended with the account opening documents for which he had not made a single suggestion as to wherefrom Bank authorities obtained the same nor he made any complaint about the missing of his CNIC and the photographs---Even the signatures on the account opening form were not denied during the cross-examination of that witness---Said witness also exhibited several cheques deposited in the account of the accused which even were not denied during the cross-examination of that witness---During investigation, the Investigating Officer had collected the relevant record against the accused persons so also recorded the statements of the witnesses and recommended that reference be filed against four accused persons---Two were the contractors and two were employees of the TMA and also fake contractors who received illegal payments from TMA without performing any work at the site---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused by producing reliable, trustworthy and confidence inspiring oral evidence as well as documentary evidence---Appeal was dismissed accordingly.

Agha Wazir Abbas and others v. The State 2003 PCr.LJ 1353; Malik Din v. Chairman National Accountability Bureau and another 2019 SCMR 372 and Khadim Hussain Kutrio and another v. The State and others 2019 PCr.LJ 1001 ref.

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

----Ss. 15, 25 & 32---Criminal Procedure Code (V of 1898), S.342---Appreciation of evidence---Examination of accused---Prosecution case was that the accused being contractor of TMA received payment of Rs.1,942,789/- from the account of TMA on basis of bogus quotation vouchers---Accused also received an amount of Rs.16,338,871/- for which no vouchers/documents/bills had been recovered and said amount of Rs.18,281,660/- was illegally deposited in his personal account maintained by two Banks, thus accused had acted illegally and caused loss to the Government exchequer---In the present case, during cross examination, the accused took the plea that he never worked as contractor nor opened any bank account and he was impersonated by someone else---Statement under S.342, Cr.P.C, of the accused showed that while giving answers to most of the questions, he took the plea that all the vouchers/bills and other documents were prepared by the officials of the TMA who used his name and made his fake signatures on it---Allegedly, accused never opened or operated the Bank accounts used in the scam and his CNIC and photograph were used which he submitted for the job---No merit was found in the plea taken by accused for the reason that after the reference had been filed, he never approached any authority against the officials of the TMA that they used his name while committing the offence---Plea of the accused was not acceptable that his CNIC and photograph which were used for opening the bank accounts were submitted by him for the job---Record showed that the Bank account was opened in the year 2010---Admittedly, accused had become regular/permanent employee of the TMA in the month of September 2013, which revealed that when he applied for the post, he had already opened his Bank account with his own CNIC and photos and as such there was no opportunity of any TMA official or any other person to impersonate the opening of the Bank account for the purpose of the scam in 2012-2013---Since said Bank accounts had already been opened by the accused as far back as 2010, even during the trial, accused did not move any application for verification of the signatures available on the fake vouchers and documents related to the Bank accounts which also suggested that he knew that his correct and genuine signatures were available on those papers---High Court disbelieved the plea taken by the accused---Appeal was dismissed accordingly.

Nisar Ahmed Tarar for Appellant.

R.D. Kalhoro, Special Prosecutor NAB for the State.

2020 M L D 1693

[Sindh]

Before Nazar Akbar, J

JUNAID AHMED SIDIQUI---Applicant

Versus

M. YAKOOB KHAN NIAZI and another---Respondents

R.A. No.38 of 2010, decided on 18th May, 2020.

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

----O.XX, R.5, O.XIV, Rr.1, 2 & O.XLI, R.31---Suit for cancellation of lease and possession---Recording evidence of the parties after framing of issues---Dismissal of suit while deciding issue of maintainability without touching any other issues---Scope---Plaintiff filed suit for cancellation of lease and possession wherein issues were framed and evidence was recorded---Trial Court dismissed the suit while giving findings on issue of maintainability while treating it preliminary issue without deciding issues of facts which was upheld by the Appellate Court---Validity---Purpose of conferring power on the Court to first decide the case or any part thereof only on the issue of law was to save the time of Courts and litigants---Court for deciding a case on the issue of law should form a conscious opinion in the light of pleadings of the parties and give notice to the parties that in its opinion the case mighty be disposed of on the issues of law and it should try those issues first---Trial Court, in the present case, had neither consciously framed issue of law nor expressed its intent to dispose of the case on the issue of law---Even settlement of issues of facts had not been postponed and evidence of both the parties had been recorded---Once Court had consumed time in recording evidence then efforts were to be made to decide the case both on law points as well as on merit---Trial Court after completing trial should have passed judgment on all the issues, in circumstances---Courts below had failed to appreciate the pleadings of the parties in correct perspective---Plaintiff had prayed for recovery of possession of suit property on the basis of registered title document and his suit was simple suit for recovery of possession under S.8 of Specific Relief Act, 1877---Plaintiff had not sought any declaration as to his entitlement to any legal character---Even defendant had not raised any legal objection with regard to bar to the present suit in terms of S.42 of Specific Relief Act, 1877---Dispute between the parties was with regard to entitlement to possession specific suit plot on the basis of title documents---Question of title of the plaintiff and/or defendant could have automatically been determined had the Court decided the issues of facts with regard to entitlement of possession of suit land---Provisions of Ss.42 & 8 of Specific Relief Act, 1877 were not complementing each other and were independent provisions of law and dealt with different kinds of grievances---Any person who had been deprived of his immovable property by any unscrupulous person could sue the said illegal occupant and recover its possession without seeking a declaration of his entitlement to his legal character---Findings recorded by the Courts below treating issue of maintainability as preliminary and dismissing the suit were not sustainable, in circumstances---Impugned judgments and decrees passed by the Courts below were set aside---Matter was remanded to the Trial Court for decision afresh while giving findings on each and every issue---Revision was allowed, in circumstances.

Syed Iftikar-ud-Din Haider Gardezi and 9 others v. Central Bank of India Ltd., Lahore 1996 SCMR 669; Sh. Abdul Kabeer v. Mian Abdul Wahid and others 1968 SCMR 464; Sultan Mehmood Shah through L.Rs. v. Muhammad Din and 2 others 2005 SCMR 1872; Muhammad Aslam v. Mst. Ferozi and others PLD 2001 SC 213 and Cantonment Board through Executive Officer, Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161 distinguished.

Hafiz Muhammad Siddique Anwar v. Faisalabad Development Authority and others 2007 SCMR 1126 and Taj Wali Shah v. Bakhti Zaman 2019 SCMR 84 rel.

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

----Ss.42 & 8---Provisions of Ss.42 & 8 of Specific Relief Act, 1877 were independent provisions of law and dealt with different kinds of grievances---Principles.

Abrar Hasan for Applicant.

Syed Sultan Ahmed for Respondent No.1.

Nemo. for Respondent No.2.

2020 M L D 1718

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

ABDUL SATTAR through Legal Heirs

and another---Applicants

versus

MUHAMMAD AZEEM and 2 others---Respondents

Civil Revision Application No.S-138 of 2007, decided on 7th March, 2019.

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

----Ss.54 & 56---Suit for injunction and damages---Injunction when refused---Failure to seek declaration of entitlement---Effect---Suit claimed that plaintiffs were owners of certain agricultural land and in front of that land a piece of government land was available, over which they had planted trees and had built their houses but the defendants had cut down those trees and tried to dispossess them from the suit land---Trial Court and Appellate Court concurrently dismissed the suit---Validity---Basic claim of the plaintiffs in civil suit was with regard to damages---Evidence of the parties explicitly showed that the plaintiffs had failed to prove their claim on account of damages and entitlement on the subject land---Plaintiffs thus had failed to substantiate their proprietary right on the suit land in their favour through documentary evidence---Suit for injunction was barred by S.56(i) of Specific Relief Act, 1877---Grant of injunction depended upon the determination of title, mere suit for injunction was not maintainable---Suit was rightly dismissed by the courts below---Revision was rejected.

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

----S.42---Suit for declaration---Discretion of court---Scope---Any person entitled to any legal character or to any right as to any property may institute a suit against any person denying or interested to deny his title such character or right, and the court may in its discretion make a declaration that he is so entitled, and the claimant need not in such suit ask for any further relief---Court shall not make any such declaration where the claimant being able to seek further relief than a mere declaration of title omits to do so.

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

----S.54---Suit for permanent injunction---Title of property---Scope---Suit for permanent injunction relating to land cannot be maintained if the plaintiff has no title/possession of the property.

Ghulam Sarwar Baloch for Applicants.

Bisharat Ali Memon for Respondents Nos.1 to 3.

2020 M L D 1729

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

MUHAMMAD JUMAN JUMANI---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.S-995 of 2019, decided on 7th November, 2019.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss. 336, 506, 337-T---Itlaf-i-salahiyyat-i-udw, criminal intimidation, arsh for fingers---Pre-arrest bail, confirmation of---Further inquiry---F.I.R. was delayed by about 76 days and no plausible explanation had been furnished by the prosecution---Accused, Sub-Divisional Officer of Electric Supply Company of the area had no intention to cause injury to any of the citizens including injured as broken electric wire / conductor, which occurred due to heavy rains, was an unpredictable event that resulted into occurrence of natural causes which was entirely irresistible and uncontrollable---Mere heinousness of an offence or the punishment provided by the law, whether maximum or larger, was no ground to withhold the bail of an accused or individual if otherwise on merits he had got good case---Delay, particularly, in criminal cases, had always been held as fatal for the prosecution case, therefore, same could be beneficial for the accused and not for the prosecution in absence of any plausible explanation---Accused was a government servant and question of his absconding or tampering with the prosecution evidence did not arise and if he was put behind the bars he would not only lose his liberty but also his service through which his entire family depended upon---Bail application was allowed and interim pre-arrest bail earlier granted to the accused was confirmed, in circumstances.

Altaf Ahmed Shahid Abro for Applicant along with applicant, who is present on bail.

Ms. Sana Memon, A.P.G., Sindh.

2020 M L D 1736

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and

Abdul Mobeen Lakho, JJ

GHULAM HUSSAIN alias GULOO ---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No.D-69 and Confirmation Case No.D-04 of 2016, decided on 19th September, 2019.

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

----S.302---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Ocular account supported by medical evidence---Mitigating circumstances---Effect---Accused was charged for committing murder of brother of complainant due to matrimonial dispute---Ocular account of the incident had been furnished by two witnesses including complainant---Eyewitnesses had been believed by the Trial Court as there was no legal infirmity in their statements---Said witnesses had successfully faced the test of cross-examination---Witnesses had no enmity against the accused to involve him falsely in the case---Present case was of a single accused---Question of mistaken identity of the culprit did not arise in the case as parties were known to each other---Accused had not been able to lay down any foundation for his substitution in place of real culprit---Eyewitnesses were wholly dependable and implicit reliance could be placed on their statements---Moreover, their evidence was corroborated by the medical evidence---Complainant and eyewitnesses had simply deposed that accused committed murder of deceased in their presence and they had failed to disclose the motive---Investigating Officer had also failed to interrogate/collect evidence with regard to the motive for the commission of the offence---High Court observed that motive setup in the FIR had not been proved at trial which fact certainly served as a mitigating circumstance, where normal penalty of death was not to be awarded, but sentence of imprisonment for life was more appropriate---Appeal was dismissed to the extent of conviction but the death sentence of accused was reduced to the imprisonment for life.

Ijaz Ahmad v. The State 2017 SCMR 1941 and Muhammad Akram alias Akra v. The State 2019 SCMR 610 ref.

Ghulam Mohy-ud-Din alias Haji Babu and others v. The State and Haji Muhammad Sadiq v. Liaquat Ali and others 2014 SCMR 1034 rel.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Motive not proved---Accused was charged for committing murder of brother of complainant due to matrimonial dispute without many details thereof, and it was not clear as to what actuated the accused to take the life of the deceased---Motive remained unproved, in circumstances.

Mawaz Khan v. Ghulam Shabbir and the State 1995 SCMR 1007 rel.

(c) Criminal trial---

----Motive---Scope---If prosecution asserts a motive but fails to prove the same, such failure may react against sentence.

Mst. Nazia Anwar v. The State and others 2018 SCMR 911 rel.

Ubedullah Malano for Appellant.

Zulfiqar Ali Jatoi, Additional Prosecutor General.

2020 M L D 1748

[Sindh (Hyderabad Bench)]

Before Khadim Hussain M. Shaikh, J

MUHAMMAD MUMTAZ---Petitioner

versus

PROVINCE OF SINDH and others---Respondents

Constitution Petition No.S-834 of 2019, decided on 2nd January, 2020.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Application for recovery and production of wife and son alleged to have been detained---Illegal confinement---Scope---Petitioner had filed application under S.491, Cr.P.C, before Sessions Judge, which was ultimately disposed of, thereafter, petitioner filed constitutional petition, which was not maintainable, for, the alleged detainee, wife, along with minor was living in the house of her parents and that could not be termed to be "illegal confinement"---Record further revealed that the alleged detainee in her statement recorded before Judicial Magistrate, which was reaffirmed by her in the Court, had categorically stated that she left the house of the petitioner in the morning on that day and she appeared at police station and then her statement was recorded before the Magistrate, meaning thereby that she was in the house of petitioner when the petitioner had filed application under S. 491, Cr.P.C. before the Sessions Judge, which was disposed of---Petition besides being not maintainable was mala fide one and the petitioner by filing the petition, which was incompetent right from its institution, had unnecessarily wasted the time of Court and having also put the machinery in motion in the case in which there was hardly any justification---Constitutional petition was dismissed with costs, in circumstances.

Petitioner is present in person.

Muhammad Ismail Bhutto, Additional Advocate General along with ASI Ghulam Mustafa of P.S. Mangli.

2020 M L D 1755

[Sindh]

Before Adnan Iqbal Chaudhry, J

ARIF BALOCH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.1083 of 2019, decided on 14th November, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention ---Bail, grant of---Further inquiry---First Information Report was against unknown persons---Accused was implicated on the confessional statement of co-accused made in police custody---Prosecution witness had picked the accused during an identification parade as one of the persons last seen with the deceased, but he failed to pick up the co-accused persons at the same identification parade which took place after two months of the incident---Investigation report showed that presence of the accused on duty at his company at the time of the incident was verified by his employer and the call detail record of the phone number given by the accused was also traced at the said company at the time of the incident---Investigating officer discarded the call detail record on the ground that the SIM of the cell number was not registered in the name of the accused---Plea of alibi of accused could not be ignored when there was nothing to suggest that the employer's confirmation of the alibi was doubtful---Last seen account of the prosecution witness was a statement under S. 161, Cr.P.C., therefore, it did not come in the way of grant of bail when the accused had otherwise succeeded in bringing his case within the ambit of further enquiry within the meaning of S.497(2), Cr.P.C.--- Nothing on record so far to show that accused had a criminal history---Co-accused had already been granted bail by the Trial Court---Accused was admitted to bail, in circumstances.

Raham Ali Rind for Applicant.

Liaquat Ali Khaskheli for Complainant.

Sagheer Ahmed Abbasi, Assistant Prosecutor General Sindh for the State.

2020 M L D 1762

[Sindh (Hyderabad Bench)]

Before Fahim Ahmed Siddiqui, J

GHULAM SHABBIR---Applicant

Versus

The STATE---Respondent

Criminal Revision Application No.S-24 of 2013, decided on 6th December, 2018.

Penal Code (XLV of 1860)---

---S.193---Criminal Procedure Code (V of 1898), S. 161---False evidence---Appreciation of evidence--- Contradiction in statements made before Investigating Officer and in Court---Scope---Accused, during his examination-in-chief, had deviated from his statement recorded under S. 161, Cr.P.C. as such he was convicted under S. 193, P.P.C.---Statement recorded by Investigating Officer under S. 161, Cr.P.C. did not enjoy the sanctity of a statement recorded under S.164, Cr.P.C., which was recorded before a Judicial Officer---Prosecution had not got the accused declared to be a hostile witness nor was he cross-examined by the prosecution---Accused could not be charged for giving false evidence, in circumstances---Accused could only be charged for giving false evidence if such evidence was contradicted to the established fact or contrary to his earlier statement recorded before the same court or any other court of law---Accused could not be held responsible for giving false evidence only because his deposition was contrary to his statement recorded by the Investigating Officer---Impugned judgment was set aside and the accused was acquitted of the charge.

Ghulam Sarwar Chandio for Applicant.

Shahid Ahmed Shaikh Deputy Prosecutor General Sindh for the State.

2020 M L D 1769

[Sindh]

Before Irshad Ali Shah, J

RAMESH LAL and another---Appellants

Versus

KHATOO MAL and another---Respondents

Criminal Appeal No.S-130 of 2010, decided on 10th May, 2019.

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

----Ss.302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Unseen occurrence---Delay in filing direct complaint---Contradictory statements---Acquittal of some of the accused persons---Scope---Complainant alleged that his son aged 10 years was taken by his uncle to a festival; uncle became drowsy; accused and other arranged for his sleep; took his son with them and committed his murder---Complainant was not an eye-witness of the incident as such his evidence could not be relied upon---Prosecution witness/uncle of the deceased had not supported the case of prosecution by stating that he had not seen anyone killing the deceased---First Information Report of the incident lodged by the complainant was disposed of under 'A' class by the police---Direct complaint was filed by complainant with a delay of seven months---Statements of prosecution witnesses were inconsistent on some points---Conviction of one set of accused and acquittal of other set of accused, on the basis of same evidence could not be approved---Appeal against conviction was allowed, in circumstances.

Mehmood Ahmed and others v. The State and another 1995 SCMR 127; Abdul Khaliq v. The State 1996 SCMR 1553; Sardar Bibi and others v. Munir Ahmed and others 2017 SCMR 344 and Tarique Bashir v. The State 1995 SCMR 1345 rel.

(b) Criminal trial---

----Procedure---Conviction of one set of accused and acquittal of other set of accused on the basis of same evidence cannot be approved.

Sardar Bibi and others v. Munir Ahmed and others 2017 SCMR 344 rel.

Muhammad Ali Napar for Appellant.

Ubedullah Malano for Complainant.

Aftab Ahmed Shar, Additional Prosecutor General for the State.

2020 M L D 1777

[Sindh]

Before Abdul Maalik Gaddi and Mrs. Rashida Asad, JJ

MUHAMMAD AMIR and others---Appellants

Versus

The STATE---Respondent

Criminal Appeals Nos.342 to 344 of 2019, decided on 8th April, 2020.

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

----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S.23(i)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his public duty, common intention, act of terrorism, possessing unlicensed weapon---Appreciation of evidence---Benefit of doubt---Prosecution case was that accused were riding on motorcycle, in suspicious manner, police signalled them to stop, but they both started firing upon the police party with intention to kill them---Police party also fired in retaliation/self defence, which hit one culprit, who fell down on the ground, whereas his companion tried to escape but police successfully apprehended him---High Court observed that close scrutiny of the evidence reflected that the prosecution story was unnatural---Alleged encounter continued for considerable time, with sophisticated weapons but not a single injury/ scratch was caused to any police official, any passerby or to police mobile, even to the motorcycle of accused persons and it hit to the accused while selecting his leg---Even no blood was found at the place of incident---Circumstances suggested that the prosecution story regarding police encounter did not appeal to logic and the benefit of doubt must go to the accused---Standard of proof in the present case had to be far higher as compared to any other criminal case---Case should have been investigated by some other agency---Police, in that case, could not have been investigators of their own cause---Such investigation which was woefully lacking independent character could not be made basis for conviction, that too when it was riddled with many lacunas and loopholes---Defence pleas raised by the accused that they were picked up by the law enforcement agencies from their houses prior to the incident and weapons were foisted upon them in fake police encounter appeared to be plausible---Prosecution had not been able to prove its case against the accused beyond reasonable doubt, in circumstances.

Zeeshan alias Shani v. The State 2012 SCMR 428 rel.

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

----Ss. 324, 353 & 34---Anti Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(i)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his public duty, common intention, act of terrorism, possessing unlicensed weapon---Appreciation of evidence---Benefit of doubt---Ocular and medical evidence---Contradictions---Effect---Prosecution case was that accused were riding on motorcycle in suspicious manner, police signalled them to stop, but they both started firing upon the police party with intention to kill them---In the present case, the complainant during his cross-examination stated that accused sustained bullet injury on back side of his left leg, which was in diametrical conflict with the position taken by him in his crime report as well as in the memo of arrest and recovery wherein the injury was shown to be received by accused at his right foot---Confusion was further compounded by the statement of Medico Legal Officer, who vide his report, noted that the injury was caused to the accused at his right leg at its lower third---Official witness/ASI in FIR had mentioned that from the place of incident, injured accused was directly shifted to hospital through ambulance, whereas, he in his evidence stated that no ambulance was called at the place of incident and the accused were first brought at the police station and thereafter, injured accused was shifted to hospital for medical treatment---Prosecution had failed to establish its case against accused beyond a reasonable doubt.

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

----Ss. 324, 353 & 34---Anti Terrorism Act (XXVII of 1997), S.7---Sindh Arms Act (V of 2013), S.23(i)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his public duty, common intention, act of terrorism, possessing unlicensed weapon---Appreciation of evidence---Benefit of doubt---Joint mashirnama of recoveries---Effect---Prosecution case was that accused were riding on motorcycle in suspicious manner, police signalled them to stop, but they both started firing upon the police party with intention to kill them---Admittedly, there was joint mashirnama of recoveries as well as arrest, pertaining to three FIRs including the main case---Such practice was deprecated by the High Court.

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

----Ss. 324, 353 & 34---Anti Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S.23(i)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his public duty, common intention, act of terrorism, possessing unlicensed weapon---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence from the possession of accused---Scope---Delay in sending the weapons for analysis---Effect---Prosecution case was that accused were riding on motorcycle in suspicious manner, police signalled them to stop, but they both started firing upon the police party with intention to kill them---Record showed that nowhere the colour of pistol allegedly recovered from the possession of accused was mentioned, whereas, it was surprising to note that pistol which was produced before the court was of silver colour with black handle---Perusal of mashirnama of arrest and recovery revealed that 30 bore pistol allegedly recovered from the possession of co-accused showing words "CAL 30 MAUSER MADE AS CHINA BY NORINCO"---In the Forensic Science Laboratory Report, the above said words were not mentioned and said alleged weapon was shown as 30 bore pistol with rubbed number---No reliance could safely be placed on such report for maintaining the conviction of the accused, in circumstances---Record further showed that the weapons allegedly recovered from the accused were received in the office of the Forensic Science Laboratory after delay of about two days for which no explanation had been furnished by the prosecution---Pistols and bullets were retained by whom during such intervening period had also not been explained by the prosecution---If it was assumed that the case property was lying in the Malkhana then no report/entry of the Malkhana had been produced to corroborate the version of prosecution---No official from Forensic Division had been examined---Investigating Officer nowhere had deposed about safe custody of the empties and pistol at Police Station and their safe transmission to the Ballistic Expert, as such positive report of Forensic Science Laboratory would not improve the case of prosecution.

(e) Criminal trial---

----Recovery of crime weapon---Safe custody---Scope---Prosecution was under legal obligation to prove the safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory.

Kamal Din alias Kamala v. The State 2018 SCMR 577 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---Benefit of all the favourable circumstances would be extended to the accused.

Abdul Jabbar and another v. The State 2019 SCMR 129 rel.

Hafiz Abdul Rahim Abid for Appellants.

Abdullah Rajput, Deputy Prosecutor General Sindh for the State.

2020 M L D 1794

[Sindh]

Before Omar Sial, J

SAMRAN---Applicant

Versus

The STATE through Prosecutor General, Sindh and 2 others---Respondents

Criminal Revision Application No.162 of 2019, decided on 2nd March, 2020.

Penal Code (XLV of 1860)---

----S. 376---Juvenile Justice System Ordinance (XXII of 2000), S. 7 [since repealed]---Juvenile Justice System Act (XXII of 2018), S. 8---Rape---Accused moved application for determination of his age, which was dismissed by Trial Court---Validity---Principal difference between Ss.7 & 8 of Juvenile Justice System Ordinance, 2000 and Juvenile Justice System Act, 2018 respectively seemed to be that in the Juvenile Justice System Ordinance, 2000, it was the Juvenile Court which was given the responsibility to hold an inquiry and determine the age of the child; on the other hand in the Juvenile Justice System Act, 2018, it was the officer-in-charge of the police station or the investigating officer who was empowered to hold an inquiry to determine the age of the accused---Court was also to record its findings regarding the age of the accused if accused physically appeared to be a juvenile---Record showed that no proper determination of the accused's age had been made by either the investigation officer or the Trial Court---Trial Court had erred in holding that as it operated as a Sessions and Juvenile Court, there was no need to determine the age of the accused---Making such determination was important as the offence with which accused was charged carried a potential death sentence---Application against the impugned order was allowed with direction to the Trial Court to first determine the age of the accused.

Muhammad Hanif Samma for Applicant.

2020 M L D 1803

[Sindh (Sukkur Bench)]

Before Aftab Ahmed Gorar, J

ABDUL KHALIQUE---Appellant/Complainant

Versus

SHAHBAZ AHMED and another---Respondents

Criminal Acquittal Appeal No.S-6 of 2018, decided on 21st October, 2019.

Penal Code (XLV of 1860)---

----Ss. 489-F---Criminal Procedure Code (V of 1898), S.417(2-A)---Dishonestly issuing a cheque---Appreciation of evidence---Appeal against acquittal---Root cause of the dispute in between the appellant and the accused was the transaction of sale of sugar---No documentary proof was produced by the appellant in his evidence with regard to the said transaction---Appellant had claimed that accused had issued the cheque of Rs.9,50,000/---Bank Manager, during examination, deposed that Bank authority did not verify the signature of accused available on the cheque and the cheque was returned to the drawer as the same "had been stopped by the accused for the reason of its misplacement"---Appellant had failed to produce on record the deposit slip of the cheque---Memo of the cheque in question did not disclose that the cheque had been dishonored due to having insufficient funds rather it revealed that the cheque was returned to the drawer due to stopping of the payment by the accused---Mere issuance of cheque and its having been dishonored, being actus reus, would not be able to attract the provision of S.489-F, P.P.C., simply for want of presence of element of dishonesty in the matter---No independent witness to the transaction had been examined---No documentary evidence had been produced either to prove the sale and delivery of sugar---No quantity of sugar was disclosed either in the FIR or in the evidence by the appellant or his witnesses---Prior to registration of FIR by the appellant, the accused had already filed suit for settlement of accounts and perpetual injunction against the appellant, which was pending adjudication before the Court of Civil Judge---Accused, in the said suit, had stated that though there had been business relations in between him and the appellant but nothing was outstanding against him---Evidence of the prosecution witnesses was not confidence inspiring and could not be made basis of conviction to the accused---Acquittal once granted could not be recalled merely on the possibility of a contra view---Unless, impugned view was found on fringes of impossibility, resulting into miscarriage of justice, freedom could not be recalled---Appeal against acquittal was dismissed, in circumstances.

Muhammad Arif Malik for Appellant/Complainant.

2020 M L D 1808

[Sindh]

Before Fahim Ahmed Siddiqui, J

ZUBAIR---Applicant

versus

The STATE---Respondent

Criminal Bail Application No.956 of 2019, decided on 2nd August, 2019.

Criminal Procedure Code (V of 1898)---

----S. 498--- Penal Code (XLV of 1860), Ss. 380, 411, 506 & 34---Theft in dwelling house, etc, stolen property, criminal intimidation and common intention---Pre arrest bail, refusal of---Absconsion---Allegations against the accused were that he committed theft of documents of the plot of the complainant from his house and thereafter handed over the same to co-accused persons, who had sold the same to an Estate Agent---FIR had been lodged in the year 2008, wherein the complainant had specifically mentioned the name and role of the present accused, who had chosen to remain absconder for a long period of 11 years---Co-accused had been acquitted by the Trial Court, but the case of accused had been kept in dormant file, as he had absconded and never appeared to face the trial---Accused had failed to produce any proof to show his stay abroad, he had remained an absconder for a period of eleven (11) years---No case of pre-arrest bail had been made out---Application was dismissed and the interim bail order was cancelled.

Syed Gulzar Hussain for Applicant.

Complainant in person.

Sagheer Ahmed Abbasi, APG for the State.

2020 M L D 1810

[Sindh]

Before Arshad Hussain Khan, J

ASIF MAJEED and 3 others---Plaintiffs

versus

KARACHI METROPOLITAN CORPORATION through Mayor, Karachi---Defendant

Suit No.2527 of 2016, decided on 4th May, 2020.

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

----Ss. 42 & 54---Constitution of Pakistan, Arts. 23 & 24---Registration Act (XVI or 1908), S.60---Universal Declaration of Human Rights, Art.17---Suit for declaration, permanent injunction, possession and recovery of damages---Lease of suit property---Demolishing suit property without consent of plaintiffs---Registered document---Presumption of truth---Fundamental Right with regard to property---Effect---Suit property was leased out in favour of plaintiffs in open auction but defendant-Corporation demolished the same---Contention of plaintiffs was that they had suffered financial loss due to illegal acts of defendant---Validity---Suit property had been leased out in favour of plaintiffs through registered lease deed---Registered documents had presumption of truth and genuineness was attached to such documents unless they were rebutted through strong and cogent evidence---Defendant without notice or consent had demolished the suit property to disadvantage of the plaintiffs---Defendant had admitted the ownership of plaintiffs with regard to suit land---Every citizen had right to acquire, hold and dispose of property and nobody could be deprived of his property except under the due process of law---Executive should respect ordinary legal right of a person towards protection of his property---If Government required land for a public welfare, it could do so by following the procedure on the subject in addition to pay compensation in lieu thereof---Fundamental Rights guaranteed under the Constitution could neither be treated lightly nor interpreted in a casual or cursory manner---Balance had to be kept between rights of individuals and the interests of the community---If in serving the interests of the community an individual or number of individuals had to be put to some inconvenience and loss by placing restrictions on some of their rights guaranteed by the Constitution then they should be reasonably compensated---Action of defendant, in the present case, was in violation of inalienable Fundamental Rights of the plaintiffs---Plaintiffs were entitled to re-occupy the suit property and raise construction thereon at their own cost or in the alternate defendant had to provide an alternate piece of land in the same vicinity of the same market value in lieu of demolished suit property---Defendant should allow the plaintiffs to re-occupy the suit property and construct a new building in place of demolished one in accordance with law---Suit was decreed, in circumstances.

Sheikh Anwar Saeed v. L.D.A. 2015 CLC 1723 ref.

Mirza Muhammad Sharif and 2 others v. Mst. Nawab Bibi and 4 others 1933 SCMR 482; Abdul Sattar v. Land Acquisition Collector 2010 SCMR 1523; Sub. (Retd) Muhammad Ashraf v. District Collector, Jhelum and others PLD 2002 SC 706; Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026 and Government of Sindh through Secretary Health, Department and others v. Dr. Nadeem Rizvi and others 2020 SCMR 1 rel.

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

----S. 42---Scope of S.42 Specific Relief Act, 1877.

Section 42 of the Specific Relief Act does give a right to institute a suit to any person, who has any right as to any property. The 'legal character' is the most important aspect of a lis [case] and in absence thereof one cannot maintain his/her lis though filed for a relief, recognized under 'Specific Relief Act or under any other law' except matters, qualifying requirement of Section 91 of the C.P.C. Furthermore, such aspect of the case can also be decided in a summary manner at initial stages. However, the party seeking entitlement to relief has to prove his entitlement through evidence and such aspect cannot be decided in summary manner but after a proper trial. It would thus be safely stated that the law authorizes a person to seek enforcement of his right to any property by instituting a suit against a person and denying his right or title.

Parveen Begum and another v.Shah Jehan and and another PLD 1996 Kar. 210 and Abdul Razzak Khamosh v. Abbas Ali and others PLD 2004 Kar. 269 rel.

Khalid Javed for Plaintiffs.

Shaban Solangi for Defendant.

2020 M L D 1826

[Sindh (Hyderabad Bench)]

Before Adnan-ul-Karim Memon, J

Ch. AZEEM AHMED---Applicant

versus

S.H.O., POLICE STATION SANJAR CHANG, DISTRICT TANDO ALLAHYAR

and 16 others---Respondent

Criminal Miscellaneous Application No.S-182 of 2017, decided on 8th March, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 145 & 146---Procedure where dispute concerning land, etc., is likely to cause breach of peace---Inquiry as to possession---Party in possession to retain possession until legally evicted---Power to attach subject of dispute---Scope---Applicant assailed order passed by Magistrate whereby he, after taking disputed property into government custody, handed over its possession to the respondents---Validity---Magistrate, while passing the impugned order, had recorded his satisfaction on the basis of police report that there were no chances of breach of peace in respect of the disputed land---Possession of the disputed property was rightly handed over to the real owners who were in possession of the same at the relevant time---Applicant and others had also filed a suit for specific performance of contract and permanent injunction regarding the disputed property, which was pending adjudication before High Court---Impugned orders did not call for any interference---Application was rejected.

Chaudhary Munir v. Mst. Surriya and others PLD 2007 SC 189; Saleem ur Rehman v. Faqir Hussain and others 2004 SCMR 667; Fazal Hussain v. Asad Abbas and others PLD 2003 Lah. 683 and Abdur Razaq and 3 others v. The State and 2 others PLD 2004 Peshawar 87 distinguished..

Abdul Hameed Bajwa for Applicant.

Shahid Ahmed Shaikh, DPG Sindh for Respondents.

2020 M L D 1841

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

MUMTAZ ALI---Applicant

versus

The STATE---Respondent

Criminal Bail Application No.S-697 of 2019, decided on 17th January, 2020.

Criminal Procedure Code (V of 1898) ---

----S. 498---Penal Code (XLV of 1860), Ss. 337-A(iii), 337-F(i), 147, 148, 149, 337-H(2)---Shajjah-i-hashimah, ghayr-jaifah, rioting, rioting armed with deadly weapon, unlawful assembly, punishment for hurt by rash and negligent act---Pre-arrest bail, confirmation of---Further inquiry---Explanation, in recording of FIR with delay of two months, was not satisfactory---Presence of the complainant with the injured was doubtful---Letter issued for medical treatment and certificate showed that accused and his co-accused also received injuries but these facts had been concealed by the complainant which showed that the complainant had not got registered the FIR with clean hands and he had hidden the truth---Different medical certificates were produced by the parties and the date on the final medical certificate was tampered, which created some doubts---Nature of the injury was yet to be determined by the Special Medical Board---All the provisions applied in the FIR were bailable except S.337A-(iii), P.P.C., which provided punishment up to 10 years---Parties were admittedly on inimical terms---All the family members had been involved in the case and prosecution story appeared to be managed one by the complainant---Nothing had been recovered from the place of the incident during the investigation---Court had to consider the minimum aspect of the sentence provided for the alleged offence while deciding the bail plea---Challan had been submitted and no purpose would be served if the accused was refused bail on technical grounds---Pre-arrest bail already granted to the accused was confirmed, in circumstances.

Ghulam Murtaza Korai for Applicant.

Shabir Ali Bozdar for the Complainant.

Khalil Ahmed Maitlo, DPG

2020 M L D 1883

[Sindh (Hyderabad Bench)]

Before Abdul Maalik Gaddi and Fahim Ahmed Siddiqui, JJ

TARIQUE alias Kaloo---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.D-51 of 2017, decided on 11th December, 2018.

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

----S. 9(c)---Recovery of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that on receiving spy information of selling narcotics, police party reached at pointed place and apprehended the one accused and secured seven Kgs. of charas, which was lying on the ground over plastic "KATTA", remaining accused escaped---Admittedly complainant received spy information that accused were selling narcotics at bye-pass chowk, which was busy place but despite that complainant did not associate any independent person either from the place of receiving information or from the place of incident---Allegedly, accused along with co-accused was selling charas at the pointed place and when the police party reached there, they only arrested the present accused and remaining three accused escaped on seeing the police party---Police party armed with sophisticated weapons did not make efforts to follow those accused for their arrest---Nothing was on record as to whether complainant party made any positive efforts during the event for the arrest of absconding accused---Said aspect of the case created doubt about the prosecution case---Present accused had not been convicted in any criminal case---Record showed that the alleged charas was not recovered from the exclusive possession of accused---On the contrary, record showed that it was lying on the ground over "KATTA" and said fact did not appeal to prudent mind that charas was exclusively owned by the accused-appellant---Prosecution had failed to prove its case against the accused, in circumstances---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the trial court.

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

----S. 9(c)---Recovery of narcotics---Contradictions in statements of witnesses---Scope---Record showed that evidence of the prosecution witnesses was contradictory to each other on material particulars of the case---Complainant stated in his examination-in-chief that the incident took place on 15.01.2017, whereas, the incident had taken place on 25.01.2017---Complainant had stated that the place of occurrence was a common street---Complainant further stated that mashirnama was reduced to writing by WHC of ADRC, whereas witness had stated in his evidence that mashirnama was reduced to writing by him on the dictation of complainant---Complainant further stated in his evidence that he handed over the custody of accused person, case property and police papers to SHO for further investigation---Station House Officer had stated in his cross examination that neither he visited the place of occurrence nor prepared such mashirnama and that the case property was not sent by him to the Chemical Examiner for its verification, whereas, chemical report showed that the property was sent by SHO---Such contradictions were fatal to the presecution---Appeal was allowed.

(c) Criminal trial---

----Evidence---Testimony of police officials---Evidence of police officials was as good as other witnesses but when the whole case was based upon the evidence of police officials, their evidence was required to be minutely scrutinized.

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

----S. 103---Non-association of private person as mashir of recovery and arrest---Effect---False implication of accused could not be ruled out when independent witness as mashir was not associated.

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

----S. 9(c)---Recovery of narcotics---Delay in sending sample to Laboratory---Effect---Sample parcel of the case property was received by the Chemical Examiner through Head Constable after two days of the incident without any explanation for delay---Admittedly, Head Constable had not been examined to corroborate the version of the prosecution---Record failed to show as to where the case property was lying for intervening period---No entry of Malkhana had been produced to prove the safe custody of the property---Incharge of Malkhana had also not been examined---Question of tampering in the case property in the present case could not be ruled out, in circumstances.

(f) Control of Narcotic Substances Act (XXV of 1979)---

----S. 9(c)---Recovery of narcotics---Pendency of criminal case against accused---Effect---Mere pendency of criminal cases against the accused did not ipso facto debar the accused for getting relief if he was otherwise entitled the relief on merits.

(g) Criminal trial---

----Benefit of doubt---Principle---Single circumstance, which created reasonable doubt in prudent mind about the guilt of accused, would entitle accused of its benefit not as a matter of grace and concession, but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 ref.

Ishrat Ali Lohar for Appellant.

Ms. Rameshan Oad,A.P.G. for the State.

2020 M L D 1914

[Sindh]

Before Aftab Ahmed Gorar, J

ARIF ALI SHAH---Appellant

versus

MUHAMMAD TARIQ and 3 others---Respondents

Criminal Acquittal Appeal No.87 of 2018, decided on 11th February, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 417 & 265-K---Appeal against acquittal---Power of Court to acquit accused at any stage---Audi alteram partem---Scope---Appellant assailed order passed by Trial Court whereby it acquitted the respondents on the same day when an application under S.265-K, Cr.P.C. was filed although the case was fixed for framing of the charge---Case diary of the Trial Court reflected that the appellant was not afforded any opportunity of hearing and impugned order was passed in a slipshod and hasty manner thus, the appellant was condemned unheard which was contrary to the principles of natural justice---Impugned order was set aside and case was remanded to the Trial Court for making a decision on application under S.265-K, Cr.P.C., afresh.

Malik Iftikhar Ahmad v. Ali Asghar and another PLD 1957 SC(AJ&K) 47 rel.

Arshad H. Lodhi for Appellant.

Sagheer Ahmed Abbasi, A.P.G. Sindh.

Shahid Hussain Soomro for Respondents Nos.1 to 3.

2020 M L D 1933

[Sindh]

Before Agha Faisal, J

Messrs CHINA PETROLEUM PIPELINE BUREAU---Plaintiff

versus

BST SERVICES, BUSINESS SUPPLY AND TECHNOLOGY SERVICES PVT. LIMITED through Chief Executive and another---Defendants

Suit No.1044 of 2019, decided on 28th January, 2020.

Arbitration Act (X of 1940)---

----S. 20-Arbitration agreement---Application for referring matter to the arbitration---Arbitration clause existed in the contract with regard to referring matter for arbitration in case of any dispute between the parties---Plaintiff had attempted to seek resolution of controversy through negotiation and upon failure sought enforcement of arbitration clause of contract---Arbitration clause should be considered independently as the sole determination to be made to the forum for the resolution of dispute upon terms contained therein---Arbitration agreement between the parties having arbitration clause therein---Present application had been preferred within time and defendant had no sufficient cause to preclude a reference to arbitration---Matter was referred for arbitration and arbitrator was appointed to determine the dispute in accordance with law---Application for referring matter to the arbitration was allowed, in circumstances.

Federation of Pakistan v. Ch. Fazal Muhammad 2005 YLR 2896; Mehdi K. Lavji v. Province of Sindh and others 2010 MLD 561; Agro Trade (Private) Limited and another v. Karachi Port Trust and others 2018 CLC 1140; Commodities Trading International Corporation v. Trading Corporation of Pakistan and another 1987 CLC 2063; Lithuanian Airlines v. Bhoja Airlines (Private) Limited 2004 CLC 544; Industrial Fabrication Company v. Pak American Fertilizer Limited PLD 2015 SC 154 and Sadat Business Group Limited v. Federation of Pakistan and another 2013 CLD 1451 rel

Abdul Qayyum Abbasi for Plaintiff.

Basil Nabi Malik for Defendant.

2020 M L D 1957

[Sindh]

Before Abdul Maalik Gaddi, J

MANZOOR HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.367 of 2017, decided on 5th November, 2019.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Judicial confession---Circumstantial evidence---Motive---Scope---Accused was alleged to have murdered his own daughter---Accused had voluntarily appeared in the police station by admitting his guilt and thereafter, he had made his judicial confession before the Magistrate---No direct evidence was available against the accused but strong circumstantial evidence was available on record---Medical evidence proved that the death was caused due to pressing of throat---Dead body of the deceased was recovered from the house of accused---Motive behind the incident was that the deceased had married without the consent of accused---Motive was proved because accused had accepted such fact in his confession---Delay of seven days in recording confessional statement was not a sufficient reason to discard the same---Accused contented that he had recorded confession because his son was under arrest at the relevant time---High Court observed that accused did not mention such fact during his confessional statement nor did he lead any evidence in that regard---Prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Minhon and another v. State 1996 PCr.LJ 528; Naqibullah and another v. The State PLD 1978 SC 21; Muhammad Yousaf v. The State 1995 SCMR 351; Ata Muhammad and another v. The State 1995 SCMR 599; Munir Ahmed alias Munni v. The State 2001 SCMR 56 and Muhammad Akram v. the State 2009 SCMR 230 distinguished.

Gul Jamal v. State 1980 SCMR 654 ref.

State v. Minhun alias Gul Hassan PLD 1964 SC 813 rel.

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

----S. 164---Judicial confession---Delay in recording---Scope---Delay in recording the confessional statement by itself is not sufficient to affect its validity, however, no hard and fast rule can certainly be laid down about the period within which the confessional statement of the accused ought to be recorded during investigation.

Nabi Baksh v. State 1999 sCMR 1972 and Muhammad Yaqoob v. State 1992 SCMR 1983 ref.

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

----S. 164---Judicial confession---Scope---Any lapse on the part of Magistrate in recording the confession cannot be treated as fatal to the evidentiary value of confession especially when the Court is satisfied that lapse on the part of the Magistrate has not in any way adversely affected the voluntariness or truthfulness of confession.

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

----S. 164---Judicial confession---Retracted judicial confession---Corroboration, requirement of---Scope---Judicial confession if rings true and is voluntary can be made the sole basis for the conviction of its maker---Even, if judicial confession is retracted, its evidentiary value is not diminished if the same gets corroboration from other facts and circumstances of the case.

(e) Criminal trial---

----Circumstantial evidence---Scope---Conviction can be awarded on circumstantial evidence, provided that circumstances constitute a chain and no link is missing and their combined effect is that the guilt of the accused is established beyond any shadow of doubt.

(f) Criminal trial---

----Each case has to be decided on its own facts and circumstances and Court is required to exercise jurisdiction independently.

The State v. Haji Kabeer Khan PLD 2005 SC 364 and Muhammad Faiz alias Bhoora v. The State another 2015 SCMR 655 ref.

Rasheed Ashraf for Appellant.

Abdullah Rajput, Deputy Prosecutor General, Sindh for the State.

2020 M L D 1965

[Sindh]

Before Irfan Saadat Khan and Fahim Ahmed Siddiqui, JJ

PROVINCE OF SINDH through Secretary Works and Services Department

and 5 others---Appellants

Versus

JAVED BALOCH---Respondent

High Court Appeal No.405 of 2017, decided on 3rd October, 2019.

Specific Relief Act (I of 1877)---

----S. 42---Qanun-e-Shahadat (10 of 1984), Art. 76---Law Reforms Ordinance (XII of 1972), S. 3---Intra-Court Appeal---Damages and recovery of money---Misplacing measurement book---Secondary evidence---Producing of photocopies---Plaintiff filed suit for compensation and damages against authorities for construction work performed by him---Authorities were aggrieved of judgment and decree passed by Single Judge of High Court in favour of plaintiff on grounds that photocopies of measurement book were inadmissible---Validity---Measurement Book was an important document and same always remained in custody of Engineers---If it was misplaced, it created a great spot of malfeasance upon those who were custodians of same--- After missing of Measurement Book, Assistant Engineer and Executive Engineer had not bothered to lodge even a non-cognizance report---Such conduct itself showed that how the functionaries behaved in case of missing of a valuable record---In case of missing Measurement Book, majority of civil work done could easily be reentered in another Measurement Book by re-measuring work done in brick and mortar---As soon as Measurement Book was recorded, entries should have been verified and bills were prepared in office of Executive Engineer by recording measurement in requisite document---Measurement could again be obtained either directly from site or from other relevant record which was never done---Any objection regarding inadmissible piece of evidence was supposed to be raised at the very time of recording of such evidence and not thereafter---Inadmissible documentary evidence, if not objected, became admissible---Division Bench of High Court declined to interfere in judgment and decree passed by Single Judge of High Court as same neither had misreading or non-reading of available evidence---Intra-court appeal was dismissed in circumstances.

Muhammad Farooq v. Abdul Waheed Siddiqui and others 2014 SCMR 630 rel.

Miran Muhammad Shah, Addl. A.G. for Appellants.

Malik Naeem Iqbal for Respondent.

2020 M L D 1971

[Sindh (Sukkur Bench)]

Before Aftab Ahmed Gorar, J

AIZAZ ALI---Appellant/Complainant

Versus

JAVED AHMED alias JAVED and 2 others---Respondents

Criminal Acquittal Appeal No.S-04 of 2018, decided on 16th September, 2019.

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

----Ss. 324 & 337-F(iii)---Attempt to commit qatl-i-amd, mutalahimah---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Single fire shot---Delayed FIR---Non-production of blood-stained clothes---Failure to secure blood-stained earth and empties---Effect---Prosecution case against accused persons was that they fired at the injured with intent to commit his murder---FIR was lodged after three days of the occurrence but no explanation was provided for the delay---Accused persons had not repeated the fire shot---Such act of the accused persons prima facie reflected that they had no intention to commit murder of the injured, which controverted the applicability of S.324, P.P.C.---Injured had received injuries through and through but neither blood stained earth, nor blood stained clothes or empties from the place of incident were collected by the Investigating Officer---Trial court had rightly come to the conclusion that reasonable doubt was created in the prosecution case and its benefit was rightly extended to the accused persons---Appeal against acquittal was dismissed, circumstances.

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

----S. 417---Appeal against acquittal---When accused person is acquitted by a Court of competent jurisdiction, then double presumption of innocence is attached to its judgment, with which the superior courts do not interfere unless the judgment of acquittal appeared to be vague, perverse and arbitrary or against the record.

Alam Sher Bozdar for Appellant.

Mian Mumtaz Ali Rabbani for the Complainant.

Khalil Ahmed Maitlo, DPG.

2020 M L D 1977

[Sindh]

Before Abdul Mobeen Lakho, J

IMTIAZ KHAN---Applicant.

Versus

The STATE---Respondent

Criminal Bail Application No.1643 of 2019, decided on 9th March, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd and common intention---Bail, refusal of---Delayed FIR---Recovery of incriminating articles---Scope---Accused was alleged to have committed murder of his wife by strangulating her---Admittedly, altercation had taken place between the couple which resulted in a physical fight and the deceased had received injuries---Only accused was present with the deceased, who informed the complainant that the deceased was not feeling well and was unconscious---Reason given for the above condition was an altercation between the couple resulting in suicide which prima facie did not click as the medical report ran counter to the said suggestion---Investigating Officer had recovered a bamboo stick of 14 inches and a dupatta from the place of incident, which corroborated with the medical report---Delay in lodging the FIR was revealed to be that the complainant initially had not lodged the FIR thinking that it was a suicide but when the Medico Legal Officer opined that it was not a suicide but a murder then the complainant lodged the FIR---Delay in lodging the FIR was reasonably explained in circumstances---Petition for grant of bail was dismissed.

Shafqat Zaman for Applicant.

Zahoor Shah, DPG for the State.

Allah Ditta Shakir for the Complainant.

2020 M L D 1996

[Sindh]

Before Muhammad Saleem Jessar, J

MUHAMMAD GHAYAS alias BABA and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No.S-348 of 2011, decided on 7th August, 2019.

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

----Ss. 302, 324 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Non-holding of identification parade---Effect---Prosecution case was that the accused persons made firing upon the brother of complainant, who died whereas two other persons sustained injuries due to said firing---Record showed that FIR was lodged against unknown persons and neither the names of the accused/appellants had been mentioned in the FIR nor even their descriptions had been narrated by the complainant or injured witness---Identification parade of the accused was very much necessary in circumstances---Non-holding of identification parade, was fatal to the prosecution case---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

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

----Art. 22---Identification parade---Scope---Holding of identification parade would become mandatory if names of culprits were not mentioned in the FIR.

Nazir and 2 others v. The State 2018 Cr.LJ Note 14 rel.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence---Non-conducting of post-mortem examination---Effect---Prosecution case was that the accused persons made firing upon the brother of complainant, who died whereas two other persons sustained injuries due to said firing---Record showed that Medical Officer issued death certificate, however, no post-mortem examination was conducted on the dead body of the deceased---No plausible explanation had been furnished for not conducting post-mortem examination---In the absence of post-mortem report, it could not be ascertained as to what nature of injuries were sustained by the deceased and with what kind of weapon such injuries were caused, so also the cause of death of the deceased could also not be ascertained---Medical Officer, who had issued death certificate, had also not been examined by the prosecution---Non-conduct of post-mortem examination on the dead body of the deceased put serious dent and created serious doubts in the prosecution case---Appeal against conviction was allowed, in circumstances.

Zainab Bibi v. Mohammad Ashraf and others 2018 PCr.LJ 13 rel.

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

----Ss. 302, 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt--- Delay in sending crime weapon to the Forensic Science Laboratory for analysis---Effect---Prosecution case was that the accused persons made firing upon the brother of complainant, who died whereas two other persons sustained injuries due to said firing---Record showed that 30-bore pistol allegedly used by accused in the commission of alleged offence was handed over to the Investigating Officer on 07.5.2007---Said weapon was received by the Ballistic Expert on 18.5.2007, thus, there was delay of about twelve days in sending the crime weapon for examination and report of the Ballistic Expert---No explanation had come forward from the prosecution for such delay---Report of the Fire Arms Expert was of no avail to the prosecution, in circumstances.

Samandar alias Qurban and others v. The State 2017 MLD 539; Yaqoob Shah v. The State 1995 SCMR 1293 and Ghulam Hussain and two others v. State 1998 PCr.LJ 779 rel.

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

----Ss, 302, 324 & 34---Qanun-e-Shahadat (10 of 1984), Art. 71---Qatl-i-amd, attempt to commit qatl-i-amd, common intention--- Appreciation of evidence---Hearsay evidence---Effect---In the present case, evidence of complainant was hearsay as he had clearly admitted in his cross-examination that he had not himself witnessed the alleged incident and that he had narrated what he had been told by the injured---Statement of complainant had no evidentiary value in view of the provisions of Art. 71 of Qanun-e-Shahadat, 1984.

(f) Criminal trial---

----Benefit of doubt---Principle---Conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused.

Wazir Mohammad v. The State 1992 SCMR 1134 and Shamoon alias Shamma v. The State 1995 SCMR 1377 rel.

(g) Criminal trial---

----Benefit of doubt---Principle---Accused could not be deprived of benefit of doubt merely because there was only one circumstance which created doubt in the prosecution story.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Mahmood A. Qureshi and Liaquat Ali for Appellants.

Ms. Rubina Qadir, Asst. P.G. for the State.

2020 M L D 2033

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Khadim Hussain Tunio, JJ

QURBAN ALI and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeals Nos.S-99, D-97 and Confirmation Case No.D-12 of 2012, decided on 20th November, 2019.

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

----Ss. 302(b), 324, 337-F(i), 337-F(iii) & 337-F(v)---Qanun-e-Shahadat (10 of 1984), Art. 132 & 133---Qatl-i- amd, attempt to commit qatl-i-amd, ghayr-jaifah, damiyah, mutalahimah, mudihah---Cross-examination---Scope---Accused persons were convicted by the Trial Court on several charges---Trial Court had recorded evidence of two witnesses in the absence of defence counsel---Cross-examination was the most valuable right of an accused and was the only vehicle through which the truth or falsity of the witnesses could be determined---Trial Court had failed to provide a fair opportunity to the accused to engage another counsel---Serious prejudice was caused to the accused persons by the Trial Court---Case was remanded by the High Court to the Trial Court with direction to provide a fair opportunity to defence counsel for cross-examination of said witnesses and recording of the statements of accused persons under S.342, Cr.P.C. afresh---Appeals were disposed of accordingly.

The State v Ghulam Ali and 5 others PLD 1975 Kar. 90; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550 and Abdul Rauf v. The State PLD 2001 Lah. 463 ref.

Ghulam Rasool Shah and another v. The State 2011 SCMR 735 and Shafique Ahmed alias Shahjee v. The State PLD 2006 Kar. 377 rel.

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

----S. 302---Qanun-e-Shahadat (10 of 1984), Arts. 132 & 133---Qatl-i-amd---Cross-examination---Scope---Case of accused person will be seriously prejudiced if the prosecution witnesses are not cross-examined by the defence counsel, particularly in a murder case.

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

----Arts. 132 & 133---Cross-examination---Order of examinations---Scope---Cross-examination is a specialized job, which can only be done by a counsel.

A.R. Faruq Pirzado and Ghulam Hyder Daudpoto for Appellant (in Criminal Jail Appeal No.D-97 of 2012).

Nadeem Ahmed Malik for Appellant (in Criminal Jail Appeal No.S-99 of 2012).

Zulfiqar Ali Jatoi Additional Prosecutor General for the State.

2020 M L D 2049

[Sindh]

Before Mohammad Ali Mazhar and Agha Faisal, JJ

ARWEN TECH (PRIVATE) LTD. Through Authorized Representative---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Law and another---Respondents

Constitutional Petitions Nos.6540 and 6379 of 2019, decided on 9th March, 2020.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Judicial review---Pre-conditions---Tender proceedings---Petitioners were unsuccessful bidders who assailed bidding process---Validity---Held, it was within the contemplation of High Court to judicially review commercial actions of state enterprises and such permission was subject to law---Role of High Court in matter of judicial review of commercial activities of state enterprise was grounded upon deliberation as to whether a decision making authority exceeded its powers; committed an error of law; committed a breach of rules of natural justice; reached a decision which no reasonable person would have reached; or abused its powers---Petitioners were unable to demonstrate to High Court any infirmity with respect to the process under scrutiny---High Court declined to interfere in the matter as the petitioners were not justified in invoking Constitutional jurisdiction of High Court, as alternate fora for a dispute resolution were present---Constitutional petitions were dismissed, in circumstances.

2016 CLC 1; 2015 MLD 1790; 2011 MLD 1876; 2015 PLC 45; 2015 CLD 257; 2011 SCMR 1990; 2001 SCMR 574; PLD 2001 SC 415; PLD 2011 SC 44; PLD 2007 SC 642; Bismillah Metal Impex v. Federation of Pakistan and others (CP D-7061 of 2017); Province of Sindh v. Abdul Sattar Arbani (CP 655-K of 2018) and connected matters; Suo Motu Case 13 of 2009 PLD 2011 SC 619; Otsuka Pakistan Limited v. Province of Sindh and others (CP D-881 of 2019); Guinault SA PA Orieans Sologne v. Federation of Pakistan and others (CP D-2531 of 2019) and Mir Shabbir Ali Khan Bijarani and others v. Federation of Pakistan 7 others PLD 2018 Sindh 603 ref.

Haider Waheed and Zoha Sirhindi for Petitioners.

Kafeel Ahmed Abbasi, Deputy Attorney General and Irfan Memon, Deputy Attorney General for Respondents.

Ameer Bux Metlo, Aqeel Qureshi (Federal Board of Revenue).

Ali Ibrahim, (National Radio Telecommunication Corporation).

2020 M L D 1

[Lahore]

Before Muhammad Qasim Khan, J

Baba Sufi MUHAMMAD IQBAL---Petitioner

Versus

JUSTICE OF PEACE/ADDITIONAL SESSIONS JUDGE, SAMUNDRI, DISTRICT FAISALABAD and another---Respondents

Writ Petition No.42135 of 2019, decided on 8th July, 2019.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 476---Contempt proceedings---Scope---Complainant was aggrieved of order passed by Ex-Officio Justice of Peace whereby he refused to initiate proceedings under S. 476, Cr.P.C. against police officials for filing false report in court---Validity---Only those proceedings were covered under S. 476, Cr.P.C. which were carried out in any court---Ex-Officio Justice of Peace being not a court under S. 476, Cr.P.C. and any statement, report submitted before Ex-Officio Justice of Peace could not be considered to be submitted before court under Cr.P.C.---When Ex-Officio Justice of Peace was not a court no proceedings under S. 476, Cr.P.C. could be carried out if a party had felt that any misinformation was submitted before Ex-Officio Justice of Peace in proceedings under Ss. 22-A & 22-B Cr.P.C.---High Court declined to interfere in matter---Constitutional petition was dismissed in circumstances.

Khizer Hayat and others v. Inspector-General of Police (Punjab), Lahore and others PLD 2005 Lah. 470; Muhammad Ali v. Additional 1.G., Faisalabad and others PLD 2014 SC 753; Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581; Rab Nawaz v. The State 2011 SCMR 1485; Amanat Masih v. Additional Sessions Judge, Kasur and 4 others PLD 2007 Lah. 53 and Muhammad Nafees alias Sohail v. The State and others PLD 2005 Kar. 638 ref.

Ch. Umair Maqsood for the Petitioner.

2020 M L D 29

[Lahore]

Before Muzamil Akhtar Shabir, J

AHSAN IFTIKHAR---Petitioner

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION through Chairman, Lahore and 6 others---Respondents

Writ Petition No. 16568 of 2019, decided on 15th May, 2019.

(a) Calendar of Board of Intermediate and Secondary Education Lahore, 2018---

----Chap. 15, R. 9(3)(8) & Chap. 14, R. 14---Allegations of using unfair means by examinee in the examination---Cancellation of result of the examinee by the Education Board---Charge sheet, framing of---Requirements---Education Board issued charge sheet to the petitioner-examinee and after reply his result was cancelled---Validity---Provisions of Chap. 15, R. 9 of Calendar of Board of Intermediate and Secondary Education Lahore, 2018 could only be exercised before declaring the result of examination---Examinee could although be proceeded against after declaration of result and it could be quashed under Chap. 14, R. 14 of Calendar of Board of Intermediate and Secondary Education Lahore, 2018---Board had not mentioned the said provisions in the charge sheet and such powers were not actually exercised---Charge sheet issued to the petitioner requiring him to file reply should have specifically mentioned the details of allegations and the provisions of law against which petitioner was required to be proceeded against---If specific details were not mentioned in the charge sheet/show-cause notice then authorities proceeding against the petitioner would be proceeding against him under wrong assumption of said violations---Non-mentioning of Chap. 14, R. 14 of Calendar of Board of Intermediate and Secondary Education Lahore, 2018 indicated that Education Board had not initiated proceedings against the petitioner under the said Rule---Passing an order under Chap. 14, R. 14 of Calendar of Board of Intermediate and Secondary Education Lahore, 2018 without including the same in the charge sheet would be proceedings on wrong assumption and not sustainable in the eye of law---What was not charged through charge sheet could not be proved---Time to invoke provision of Chap. 15, R. 9 (3) & (8) of Calendar of Board of Intermediate and Secondary Education Lahore, 2018 had expired when petitioner's result had been declared---Show-cause notice having not mentioned provision of Chap. 14, R. 14 of Calendar of Board of Intermediate and Secondary Education Lahore, 2018 was ambiguous, vague and devoid of power under which same was issued---Board by not issuing charge sheet by mentioning Chap. 14, R. 14 of Calendar of Board of Intermediate and Secondary Education Lahore, 2018 for cancellation/quashing of already declared result had exercised a jurisdiction not vested in them, which was without lawful authority---Jurisdiction referred in Chap. 15, R. 9 of Calendar of Board of Intermediate and Secondary Education Lahore, 2018 was not available at such stage to Education Board---Charge sheet in the nature of show-cause notice as well as proceedings and consequent impugned orders having its basis on wrongful assumption of jurisdiction were without jurisdiction and same were declared without lawful authority and of no legal effect---Impugned orders passed by the Board were set aside---Constitutional petition was allowed, in circumstances.

Ishtiaq Ahmad Sheikh and others v. M/s. United Bank Limited and others PLD 2006 SC 94; M/s. Atlas Tyres (Pvt.) Ltd, Sheikhupura v. Additional Collector (Adjudication), Collectorate of Central Excise, Lahore and another 2003 PTD 1593; Muhammad Hanif Abbasi v. Imran Khan Niazi and others PLD 2018 SC 189; Shahida Bibi and others v. Habib Bank Limited and others PLD 2016 SC 995 and Zia-ur-Rehman v. Syed Ahmad Hussain and others 2014 SCMR 1015 rel.

(b) Administration of justice---

----Where law required a thing to be done in a particular manner then same should be done in that manner and not otherwise.

Mehmood Ahmad Alvari and Mian Muhammad Sharif for Petitioner.

Mehboob Azhar Sheikh for Respondents.

2020 M L D 42

[Lahore (Multan Bench)]

Before Anwaarul Haq Pannun, J

BASHIR AHMAD KHAN---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Writ Petition No. 865 of 2018, decided on 2nd May, 2019.

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

----S. 265-K---Power of court to acquit accused at any stage---Pre-requisites---Scope---Interpretation of S.265-K, Cr.P.C.---Power vested under S.265-K, Cr.P.C. can be exercised by the Trial Court at any stage of the trial---Words "Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case" adequately convey the underlying object of the provision that there exists no impediment on the way of Trial Court in the exercise of its powers for acquitting accused at any stage, subject to certain prerequisites, that is; (i) after hearing the prosecutor and accused both; (ii) the reasons must be recorded for acquitting the accused; (iii) the Trial Court shall exercise its power only if it comes to the conclusion that there exists no probability of the accused being convicted of any offence; (iv) moving of formal application by the accused is not necessary and (v) the court can exercise its power on its own motion.

(b) Constitution of Pakistan---

----Arts. 199 & 189---Constitutional petition---Decision of Supreme Court binding on other courts---Certiorari, writ of---Scope---Person invoking the constitutional jurisdiction under Art. 199 of the Constitution seeking issuance of writ of certiorari, by way of setting aside the order, has to show that order, under challenge, violates the condition mentioned in the Arts. 199 & 189 of the Constitution, that the authority/court/tribunal was denuded of jurisdiction whatsoever to pass the order or that the order impugned is unsustainable on account of being result of extremely improper exercise of jurisdiction or has clearly been passed in violation of any provision of law or is product of excess or failure of jurisdiction by the tribunal or that some principle of law laid down by the superior courts, which under Art. 189 of the Constitution is binding on the subordinate courts, has been violated---Scope of interference by the High Court is limited to the inquiry whether the tribunal has in doing the act or undertaking the proceedings acted in accordance with law---Where the answer is in the affirmative the High Court will not substitute its own findings for the findings recorded by the tribunal---Case of no evidence, bad faith, misdirection or failure to follow judicial procedure, etc. are treated as acts done without lawful authority and vitiate the act done or proceedings undertaken by the Tribunal.

Rahim Shah v. The Chief Election Commissioner of Pakistan and another PLD 1973 SC 24 ref.

Haji Muhammad Aziz Khokhar for Petitioner.

Ch. Muhammad Zulfiqar Ali Sidhu, Assistant Advocate General for the State.

Usman Tariq Butt for Respondents Nos. 2 to 7.

2020 M L D 52

[Lahore (Bahawalpur Bench)]

Before Sadiq Mahmud Khurram, J

BASHIR AHMAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 1747-B of 2019, decided on 30th August, 2019.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 367, 337-A(i), 337-A(iii), 337-F(i), 337-F(v), 337-L(2), 148 & 149---Qatl-i-amd, kidnapping or abducting in order to subject person to grievous hurt, slavery, shajjah-i-khafifah, damiyah, mutalahimah, shajjah-i-hashimah, punishment for other hurt, roiting, armed with deadly weapon, common object---Bail, grant of---Further inquiry---Completion of investigation---Allegations of general nature---No recovery from accused---Effect---Allegation against accused was that he along with co-accused, while armed with sotas, gave beating to the deceased hitting him on his back and hips after having abducted him and taking him to the house of the co-accused---No specific injury was attributed to the petitioner either in the FIR or in the statements of the witnesses recorded under S.161, Cr.P.C.---Investigating Officer submitted that allegations against the accused were found to be false and that the accused had rather helped the deceased while he was injured---No recovery was effected from the accused during the investigation of the case---First Information Report showed that the accused had no motive to kill the deceased and the alleged motive was directed against the co-accused---Accused was a previous non-convict and was never involved in any such case---Investigation qua accused was complete and his person was no more required for further investigation---Case of accused was one of further inquiry covered by subsection (2) of S. 497, Cr.P.C.---Petition for grant of post-arrest bail was accepted, in circumstances.

Ehsanullah v. The State 2012 SCMR 1137; Nasar v. The State and others 2017 SCMR 130 and Muhammad Aslam v. The State and others 2016 SCMR 1520 ref.

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

----S. 497---Bail---Heinous offence---Effect---Mere involvement in a heinous offence is no ground for refusing bail to an accused who otherwise becomes entitled to the concession of bail.

Muhammad Umair Mohsin for Petitioner.

Muhammad Sharif Bhatti for Complainant/respondent No.2.

2020 M L D 62

[Lahore (Multan Bench)]

Before Farooq Haider and Asim Hafeez, JJ

MUHAMMAD TANVEER---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 665 of 2019, decided on 27th August, 2019.

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

----Ss. 265-F(7) & 94---Constitution of Pakistan, Art. 10-A---Defence evidence---Issuance of process---Summons to produce document or other thing---Right of fair trial---Scope---Accused assailed order of Trial Court whereby his application for summoning the Register maintained for mentioning rent deeds in the police station along with Moharir was dismissed---Validity---Accused, in support of his defence plea, could get process issued for summoning evidence through court---Section 265-F(7), Cr.P.C. provided that court could only refuse to issue process for compelling the attendance of any witness for examination or the production of any document or other thing, on the request of accused, if it considered that application was made for the purpose of vexation, delay or defeating the ends of justice---Where such application was not hit by said conditions, then court had to issue the process for summoning of witness or production of any document or other thing---Accused under S. 265-F(7), Cr.P.C., had to show that evidence sought to be summoned was admissible and had some relevance---Degree of relevance was immaterial for the purpose of exercising powers under S. 265-F(7), Cr.P.C.---Piece of evidence having prima facie even the slightest degree of relevance had to be summoned, if it was not otherwise hit by the exceptions mentioned in S. 265-F(7), Cr.P.C.---Refusal to issue process for summoning evidence on the application of accused in his defence was unfair in view of Art. 10-A of the Constitution---Impugned order was not only against the express provisions of law i.e. Ss.94 & 265-F(7), Cr.P.C. but was also in direct conflict with Art. 10-A of the Constitution---Appeal was allowed. (b) Criminal Procedure Code (V of 1898)---

----Ss. 265-C & 265-E---Supply of statements and documents to accused---Plea of accused---Scope---Prosecution is bound to disclose its case against accused and court has to provide relevant documents including statements of witnesses to accused, free of cost not later than seven days before commencement of the trial---Accused, on the other hand, is not bound to disclose details of his case/defence at the initial stage of the trial rather S. 265-E, Cr.P.C. envisages that accused is only to be asked at the time of framing of charge whether he is guilty or has any defence.

Hafiz Muhammad Abu Bakar Ansari for Appellant.

Mrs. Humaira Naheed Khand, Special Prosecutor for ANF for the State.

2020 M L D 84

[Lahore (Bahawalpur Bench)]

Before Rasaal Hasan Syed, J

MUHAMMAD ASLAM---Petitioner

Versus

PROVINCE OF PUNJAB and 2 others---Respondents

Writ Petition No. 6372 of 2019, decided on 26th August, 2019.

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

----Ss. 68 & 68-A---Restoration of Khal---Order, compliance of---Alternate remedy---Petitioner was land owner who was aggrieved of interruption of water supply and sought direction to the authorities for expediting restoration process---Validity---Instead of following up matter before forum in hierarchy of jurisdiction, petitioner filed Constitutional petition seeking issuance of directive against authorities to secure compliance of order---Authorities concerned had already mobilized machinery of law into action, steps were being taken for implementation of order but despite that, Constitutional petition was filed---High Court declined to issue directive to the authorities as authorities were already diligently taking steps to enforce order passed in hierarchy of jurisdiction and same would be exercise in futility---Constitutional petition was dismissed in circumstances.

Bashir Ahmad v. Abdul Razzaq and others 1996 SCMR 536; Farzand Rana Naqvi and 5 others v. Muhammad Din through Legal Heirs and others 2004 SCMR 400 and Muslim Commercial Bank Ltd. and others v. Ahmad Ali and another 2007 SCMR 38 ref.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Alternate remedy---Effect---Where aggrieved party has already initiated civil litigation and parties are locked in litigation, invocation of Constitutional jurisdiction is not justified.

Mian Muhammad Yousaf and another v. Lahore Development Authority through Director General, LDA and 5 others PLD 2001 SC 393 and Haji Irshad and 4 others v. Karachi Development Authority and 5 others 1992 MLD 1794 rel.

Mian Mansoor Ahmad Sheikh for Petitioner.

2020 M L D 100

[Lahore]

Before Ayesha A. Malik and Jawad Hassan, JJ

GHULAM QADIR---Petitioner

Versus

PUNJAB COOPERATIVE BOARD and others---Respondents

Writ Petition No.18101 of 2009, decided on 2nd October, 2019.

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

----S. 54---Agreement to sell immoveable property---Scope and proof--- Agreement to sell was not a title document until or unless it was proved through cogent and confidence inspiring evidence.

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

----S. 54---Evidence Act (I of 1872), S.68 [since repealed]---Qanun-e-Shahadat (10 of 1984), Arts. 17(2)(a) & 79--- Agreement to sell executed prior to promulgation of Qanun-e-Shahadat Order, 1984---Proof of execution---Attested and unattested by witnesses---If agreement to sell had been reduced into writing and attested by witnesses, then its execution must be proved in accordance with provisions of S.68 of Evidence Act, 1872 [since repealed], notwithstanding the fact that the same applied only to document required by law to be attested---Where agreement to sell had been reduced to writing but not attested by witnesses, its execution and the contract embodied therein could be proved by other strong evidence and attending circumstances, which might vary from case to case.

Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089 ref.

Muzammal Hussain Qureshi and Syed Ali Asghar Bukhari for Petitioner.

Nadeem ud Din Malik for Respondents PCBL.

2020 M L D 108

[Lahore (Bahawalpur Bench)]

Before Rasaal Hasan Syed, J

RASHEED AHMED---Petitioner

Versus

CHIEF SETTLEMENT COMMISSIONER and others---Respondents

Writ Petition No. 6382 of 2019, decided on 26th August, 2019.

(a) Administration of justice---

----Jurisdiction---Scope---Where an objection to jurisdiction of forum/authority or a court is raised, forum/authority or court is under legal obligation to decide question of jurisdiction before embarking upon merits of the issue---Jurisdiction cannot be assumed by consent of parties and it is mandatory for court to first decide question of its own jurisdiction.

Izhar Alam Farooqi, Advocate v. Sheikh Abdul Sattar Lasi and others 2008 SCMR 240 and D.G.Customs Valuation, Karachi and another v. Messrs Trade International Lahore and others 2014 SCMR 15 rel.

(b) Evacuee Property and Displaced Persons Laws (Repeal) Act (XIV of 1975)---

----S. 2---Evacuee property, distribution of---Alternative claims---Notified Officer---Jurisdiction---Petitioner was aggrieved of proceedings initiated by Notified Officer on grounds that Evacuee Laws were repealed and there was no application pending for any alternate claims to property in question and fresh application could not be invoked---Validity---After repeal of Settlement Laws, notified officer could not entertain any fresh petition or a claim or decide same if it was not pending at time of repeal before any fora in hierarchy of settlement jurisdiction---Notified Officer should have firstly dealt with objection, decided question of his jurisdiction and if objection did not find favour with him, then he could have proceeded with matter in accordance with law---High Court directed Notified Officer to determine question of his own jurisdiction and decide objection raised by petitioner in his application---High Court further directed that if after hearing both sides and considering relevant law and also facts of case before him, objection did not find favour, he could proceed with matter on its own merits and in accordance with law---High Court remanded matter to Notified Officer for decision afresh---Constitutional petition was disposed of accordingly.

Mst. Badshah Begum and others v. The Additional Commissioner (R) Lahore Division and others 2003 SCMR 629; Izhar Alam Farooqi, Advocate v. Sheikh Abdul Sattar Lasi and others 2008 SCMR 240 and D.G.Customs Valuation, Karachi and another v. Messrs Trade International Lahore and others 2014 SCMR 15 ref.

Gulzar Ahmed Durrani for Petitioner.

2020 M L D 136

[Lahore]

Before Aalia Neelum, J

JAVAID---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 211-J of 2013, heard on 18th June, 2019.

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

----Ss. 302, 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Delay of about one hour and forty minutes in lodging the FIR---Effect---Evidence of the complainant revealed that he straightaway went to police station for reporting the incident to the police from the hospital---Complainant as per prosecution went to the police station for reporting the incident but before visiting police station, he got drafted application for registration of criminal case from someone on the information given by the injured---Non-mentioning of that fact in the application/complaint indicated that the complainant had not stated complete truth and that the FIR came into existence later on, after due deliberations and consultations which had created dent in the prosecution case.

Allah Bachaya and another v. The State PLD 2008 SC 349 rel.

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

----Ss. 302, 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Prosecution case was that the accused party made firing on the complainant party, due to which, real brother of complainant died and one person sustained injuries---Motive was stated to be grudge of purchase of land by the deceased---Ocular account had come out from the statements of complainant, injured and the eye witness---Complaint and FIR had specifically mentioned that his brother succumbed to the injuries at the spot and injured and the deceased were taken to the hospital by the witnesses---Complainant did not mention in the complaint and FIR that he shifted the injured and dead body of deceased to the hospital and after obtaining Medico-Legal Certificate of injured went to police station for reporting the incident---Prosecution case was that after shifting the dead body of deceased to the hospital, the complainant went to the police station for reporting the incident---Medico-Legal Certificate of injured showed that the copy of Medico-Legal Certificate was received by the injured himself and he himself appeared for medical examination and no one accompanied him---Injured witness deposed during cross-examination that brother of complainant succumbed to the injuries on the way to the hospital---Deceased was taken to the hospital in injured condition from the place of occurrence in a car being driven by a student of a college and he also joined the investigation of the case---Admission of injured witness that he was shifted in injured condition from the place of occurrence in a car being driven by a student who also joined the investigation of the case as well as contradictions in between the evidence of the prosecution witnesses rendered the whole of the prosecution version doubtful---Record transpired that even mode and manner of incident deposed by the eye-witnesses along with injured witness was not in line with written complaint---Injured witness deposed during examination-in-chief that the un-known companion of co-accused had made the burst from weapon---Motorcycle fell on the ground soon after receiving firearm injury---If soon after the burst fired by un-known companion sitting on the motorcycle driven by co-accused, the motorcycle of the deceased fell down then it was not possible for accused-appellant to fire a shot from the front of deceased---Besides, as per medical evidence, the deceased received fire arm injury on his back but the injured witness deposed that no fire hit the deceased from back---Injured witness deposed that fire shot made by un-known accused hit him, whereas, eyewitness deposed during cross examination that injured witness did not receive fire arm injury---Admittedly, five co-accused of the accused-appellant had been acquitted by the Trial Court on the same set of evidence and there was no challenge to the judgment of acquittal---Major part of evidence of the prosecution was disbelieved qua the said five co-accused persons---No reliance, in circumstances, could be placed on the testimony of the prosecution witnesses for conviction of the accused-appellant---Circumstances established that prosecution had not been able to prove its case against the accused beyond shadow of doubt as there were many dents in the prosecution story---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

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

----Ss. 302, 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Delay in conducting the post-mortem---Effect---In the present case, Medical Officer conducted the post-mortem examination of the dead body of the deceased with delay of eight hours from time of reporting the incident to the police---Post-mortem examination was delayed for eight (08) hours which was not explained---Circumstances suggested that FIR was ante-timed and it had been mentioned in the post-mortem report that duration between injury and death was half an hour---Prosecution case was that injured witness was medically examined by the doctor on 11.02.2008 at 09:00 a.m.---Medical evidence showed that at 09:00 a.m. the injured was examined by doctor and if death of deceased took place after half an hour then same went against prosecution case---Duration given by the Medical Officer between the death and post-mortem was 06 to 12 hours which would mean that the occurrence could have taken place at any time and not at the time which the complainant had claimed---Medical Officer had mentioned in the column of wherefrom dead body brought from in post-mortem report that the dead body was recovered from a road, whereas the eyewitnesses stated that deceased succumbed to the injuries on the way to hospital---Circumstances showed that the occurrence had neither taken place at the time shown in the FIR nor in the manner set up by the prosecution.

(d) Criminal trial---

----Witness---Witness testified falsely---Effect---If a witness who testified falsely about one matter would not be credible to testify about any matter.

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

----Ss. 302, 324, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Motive was not proved---Effect---Deposition of the complainant revealed that the deceased was a man of questionable character having shady past and criminal antecedents---Evidence led by the prosecution in connection with motive was not sufficient for placing reliance on the testimonies of the witnesses. (f) Criminal trial---

----Motive---Scope---Motive was a double edged weapon for the occurrence and also for false implication---Different motives operated in the mind of the person in making false accusation.

Arshad Ali Mahar for Appellant.

Muhammad Waqas Anwar, Deputy Prosecutor General for the State.

Khanzada Mukkaram Khan for the Complainant.

2020 M L D 155

[Lahore]

Before Malik Shahzad Ahmad Khan, J

DILAWAR---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 15682-B of 2019, decided on 22nd April, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 365-B, 376 & 375---Kidnapping, abducting or inducing woman to compel for marriage, rape---Bail, refusal of---Principle of consistency---Applicability---Scope---Allegation against accused was that he along with another abducted the daughter of complainant on gun point and both accused persons committed rape with her---Accused was named in the FIR with specific role---Allegation against accused was prima facie supported by the medical evidence, according to which the hymen of the alleged victim was old torn---Medical examination of alleged victim was conducted after 10 days of abduction---Forensic Science Agency had reported that no semen was detected on the swabs taken from the vaginal area of the victim and after going through the said report medical officer had opined that no fresh intercourse was taken place but the alleged victim was abducted on 21-11-2018 and she was released from the custody of the accused on 26-11-2018, whereas her medical examination was conducted on 01-12-2018, therefore, non-presence of semen on the swabs taken from the vagina of alleged victim was quite natural---Penetration was sufficient to constitute the offence of rape---Penetration was established from the medico-legal report of the alleged victim---Accused was found guilty during the course of investigation and accused was unable to establish any mala fide on the part of the prosecution for his false involvement in the case---Co-accused had been granted post arrest bail by High Court but no allegation of rape was levelled against him and as such the case of the accused was distinguishable from the case of the co-accused---Accused, in circumstances, could not claim the relief of bail on the principle of consistency---Petition of accused for grant of bail was dismissed.

Akhtar Hussain Bhatti for Petitioner.

Ch. Muhammad Ishaq, Deputy Prosecutor General for the State with Umar Darazi A.S.I.

2020 M L D 166

[Lahore (Multan Bench)]

Before Farooq Haider, J

GHULAM QASIM---Petitioner

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No.12471 of 2019, decided on 27th August, 2019.

Punjab Maintenance of Public Order Ordinance (XXXI of 1960)---

----S. 3---Constitution of Pakistan, Art. 13---Arrest and detention of suspected persons---Double jeopardy---Non-availability of tangible evidence---Effect---Petitioner assailed order of Deputy Commissioner whereby his father was detained under S. 3 of Punjab Maintenance of Public Order Ordinance, 1960---Allegations against detenu were general in nature and no solid or cogent evidence was produced before the Deputy Commissioner---No material was available against the detenu except the report of City Police Officer to establish that he was about to act in a manner which was prejudicial to the public safety or maintenance of public order---Petitioner's father could not be detained merely on the basis of registration of FIRs, which were not of serious nature and the impugned order itself revealed that the detenu had been bailed out in those cases---Impugned order had been passed without application of independent mind and was also hit by Art. 13(a), of the Constitution---Constitutional petition was accepted and the detention order was set aside.

Hafiz Allah Ditta Kashif Bosan for Petitioner.

2020 M L D 178

[Lahore]

Before Jawad Hassan, J

JUDICIAL ACTIVISM PANEL---Petitioners

Versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Writ Petition No. 65699 of 2019, decided on 7th November, 2019.

Punjab Essential Services (Maintenance) Act (XXXIV of 1958)---

----S.7---Constitution of Pakistan, Art.189---Strike by doctors and health providers---Petitioner was aggrieved of going on strike by doctors, nurses, paramedics and other health providers who were aggrieved of draft of a legislation yet to be passed by legislators---Validity---Strike of doctors, nurses, paramedics and allied service providers was uncalled for because ordinance against which they were observing strikes was not implemented and draft legislation had been submitted before Provincial Assembly in which all authorities and stakeholders would be heard by concerned committee---Young doctors, nurses, paramedics and allied service providers were subject to provisions of Punjab Essential Services (Maintenance) Act, 1958 and same prohibited government servants/employees from absenting themselves from work---Criminal liability was imposed under S.7 of Punjab Essential Services (Maintenance) Act, 1958 by providing that person guilty of breach of provisions of Punjab Essential Services (Maintenance) Act, 1958 was punishable with imprisonment for a term which could be extended to one year with fine---Doctors/Nurses/ Paramedics and allied service providers had no legal justification to go on strike---High Court declared that stakeholders, whose life and profession was to be effected through draft legislation, needed to be consulted and their objections were necessary to be taken by concerned authorities---High Court further directed that concerned authorities were free to take stern action against any person who would continue strike because same violated Constitution, law and judgments of Supreme Court which were binding on them under Art.189 of Constitution.

PMDC v. Fahad Malik 2018 SCMR 1956 rel.

President Balochistan High Court Bar Association and others v. Federation of Pakistan and others 2012 SCMR 1784; Government of N.W.F.P. through Chief Secretary and another v. Dr. Hussain Ahmad Haroon and others 2003 SCMR 104; Shakeel Akhtar and others v. M.S. Mental Hospital and others 2000 SCMR 71; Mujeeb Ullah Gharsheen and another v. Government of Balochistan through Chief Secretary and 3 others 2016 PLC (C.S.) 1267; Professor Dr. Zafar Iqbal Chaudhry v. Province of Punjab and others 2017 PLC (C.S.) 583; Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404; Muhammad Zia-ur-Rehman and others v. University of Engineering and Technology and others 2013 CLC 512; Engineer Iqbal Zafar Jhagra and others v. Federation of Pakistan and others PLD 2013 SC 224; Dossani Travels Pvt. Ltd. and others v. Messrs Travels Shop (Pvt.) Ltd and others PLD 2014 SC 1; Syed Riaz Ali Zaidi v. Government of the Punjab through Chief Secretary, Lahore and 3 others PLD 2015 Lah. 463 and Subay Khan v. Secretary, Labour, Government of the Punjab PLD 2019 Lah. 253 ref.

Abdullah Malik and Aqsa Jabeen for Petitioner.

Barrister Umair Khan Niazi, Additional Advocate General on Court's call.

Ms. Sadia Malik, Assistant Attorney General on Court's call.

Barrister Ch. Muhammad Umar and Rana Muhammad Umar for Pakistan Medical Commission/Respondent No.11 with Ali Raza, Vice President PMC.

Mian Zahid-ur-Rehman Bata, Senior Law Officer, Muhammad Suleman Akash, and Aslam Junaid, Advocates with Momin Agha, Secretary Health, Dr. Salman Shahid, Additional Secretary Health, Rafaqat Ali, Additional Secretary (Admn), Specialized Healthcare and Medical Education Department, Government of the Punjab, Lahore.

Junaid Riaz Malik and Abid Iqbal Hafiz, Senior Law Officer of the Respondent No.14/ King Edward Medical University, Lahore.

Chaudhry Hafeez-ur-Rehman, Advocate/President, Lahore High Court Bar Association.

Professor Dr. Ghulam Mustafa Arain, Dean Academics and Abdul Hameed, SR. Executive Secretary, College of Physician Surgeons of Pakistan.

Abid Saqi, Tariq Iftikhar, Munir Hussain Bhatti, Mian Mohsin Ali Kanju, Shahzada Salman Chaudhry and Raja Jahanzeb Akhtar for the Respondent No.16/YDA/Paramedics.

2020 M L D 194

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi, J

SALEH KHAN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 240 of 2018, decided on 27th February, 2019.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Substitution of culprit---Scope---Substitution of real culprit especially in cases where eye witnesses lost their kith and kin before their own eyes was rare phenomenon.

Sheraz Khan v. The State 2010 SCMR 1772 rel.

(b) Criminal trial---

----Interested witness---Scope---Interested witness is one who is interested in conviction of an accused for some ulterior motive---When defence cannot bring on record any ulterior motive of complainant or witnesses to falsely implicate accused in case and fails to attribute any malice on prosecution witnesses, such are reliable witnesses.

Muhammad Aslam v. The State 2012 SCMR 593 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Role, attribution of---Recovery of crime weapon---Proof---Motive not proved---Accused was alleged to have murdered his wife---Deceased was vulnerable dependent of husband and had met unnatural death at house of accused, therefore, accused was under legal obligation to narrate circumstances in which such unnatural death of his wife had occurred---In absence of any plausible explanation, accused was liable to be held fully responsible for homicidal death of deceased especially when recovery of dead body also found ample corroboration from other circumstances of case like medical evidence and recovery of weapon of offence---One crime empty was taken into possession by investigating officer from place of occurrence which was subsequently sent to Forensic Science Agency---Accused was arrested by investigating officer and he made disclosure and got recovered weapon of offence which was subsequently sent to Forensic Science Agency---According to report of Forensic Science Agency, weapon of offence recovered on pointing of accused matched with crime empty collected by investigating officer from place of occurrence and further strengthened case of prosecution against accused---Prosecution could not prove motive part of incident but sufficient incriminating evidence was available on record to convict accused on charge of murder of his wife---Trustworthy and confidence inspiring eyewitness account was strongly supported by medical evidence as well as recovery of weapon of offence and positive report of Forensic Science Agency---High Court maintained conviction and sentence awarded to accused by Trial Court as prosecution had proved its case against accused beyond any shadow of doubt and there was no legal infirmity in the same---Appeal was dismissed in circumstances. (d) Penal Code (XLV of 1860)---

----Ss. 302(b) & 311---Criminal Procedure Code (V of 1898), S. 345---Qatl-i-amd---Compromise for Ta'zir---Prerequisites---In order to affect compromise in case of Ta'zir, it must be complete in all respects, otherwise same cannot be considered for purpose of acquittal.

Muhammad Amin v. The State 2016 SCMR 116 rel.

Barrister Osama Amin Qazi for Appellant.

Muhammad Sharif Ijaz, D.P.P. with Lehrasib, S.I. for the State.

2020 M L D 226

[Lahore]

Before Abid Aziz Sheikh, J

MUHAMMAD ISMAIL---Petitioner

Versus

MUHAMMAD ASLAM and others---Respondents

Writ Petition No. 182544 of 2018, decided on 12th September, 2019.

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 15 & 2(e)---Eviction petition---'Pagri' amount, payment of---Court below held that landlord was liable to return lump sum pagri amount of Rs. 500,000/- (Rs. 250,000/- for each shop) to the tenant---Validity---Half of the market value of shops had been paid as pagri to the landlord---Pagri amount paid for one shop was Rs. 75000/- and for other Rs. 250000/---Pagri amount was neither a security deposit nor the same could be adjusted against rent---Landlord could not be debarred from institution of eviction proceedings merely because pagri amount had been paid---Rent Tribunal while deciding eviction petition should have decided the issue of return or confiscation of amount of pagri---Punjab Rented Premises Act, 2009, in absence of any agreement to the contrary, did not recognize any automatic increase in the amount of pagri or its return at the prevailing market value of demised premises when eviction order was passed---No written agreement for return of pagri amount at 50% of prevailing market value of demised premises was on record---Exact amount of pagri paid at the time of tenancy had been established and tenant was bound to receive the same and not as 50% of present market value of the demised premises or any additional amount over and above pagri amount paid---Impugned order passed by the Court below was neither supported by record nor based on law which was set aside and pagri amount was reduced---Constitutional petition was disposed of, accordingly.

Mirza Book Agency v. Additional District Judge, Lahore 2013 SCMR 1520; Muhammad Aslam v Hanif Abdullah and Brothers 2003 SCMR 1667; Mrs. Shamim Bano v. Mrs. Nazir Fatima 2001 SCMR 1552; Mrs. Nargis Latif v. Mrs. Feroz Afaq 2001 SCMR 99; Muhammad Ashraf v. Ismail 2000 SCMR 498; Pir Muhammad Manjh v. Naveed Iqbal Malik 2017 MLD 418; Zaheer Ahmad Babar v. Additional District Judge 2015 YLR 1617 and Bawa Shiv Charan Singh v. Commissioner of Income-Tax ILR 1984 Delhi 625 rel.

(b) Punjab Rented Premises Act (VII of 2009)---

----Ss. 2(e) & 15---Eviction of tenant---Tenant had paid amount of Pagri to the landlord---Adjustment of pagri amount at the time of eviction---Scope---"Pagri"---Connotation.

The pagri is neither a security deposit nor it could be adjusted against rent, hence landlord could not be debarred from institution of eviction proceedings merely because pagri was paid. Further before Act of 2009 as there was no legal recognition of "Pagri", it could not be enforced through process of Court in eviction petition. However, in Act of 2009 for the first time, the term "Pagri" has been provided statutory protection and section 2(e) define the term "Pagri" includes any amount received by a landlord at the time of grant or renewal of a tenancy except advance rent or security. Therefore, now under Act of 2009, the rent Tribunal while deciding the rent petition is bound to decide the issue of return or confiscation of the amount of Pagri. However, in absence of any agreement to contrary, the law including Act of 2009 does not recognize any automatic increase in the amount of pagri or its return at the prevailing market value of the rented property when eviction orders is passed.

Hafiz Asif Mehmood Butt for Petitioner.

Ch. Abdul Majeed for Respondents.

2020 M L D 243

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, LIQUAT (LIAQAT) MASEEH---Petitioner

Versus

The STATE---Respondent

Criminal Revision No. 42 of 2010, decided on 7th February, 2019.

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

----Ss. 279 & 320---Qatl-i-Khata, rash driving on public way---Applicability of Ss.279 & 320, P.P.C. jointly---Scope---Sections 279 & 320, P.P.C., would show that they apply to two different situations: Offence is committed under S. 279, P.P.C. where rash or negligent driving or ride on a public way endangers human life but where such driving causes death of a person, S.320, P.P.C. would be attracted---Offender cannot be legally convicted under Ss. 279, P.P.C. & 320, P.P.C. simultaneously.

Terence Anthony D' Casta v. The State 1969 PCr.LJ 1228; Muhammad Bakhsh v. The State 1976 PCr.LJ 405; Muhammad Akhtar v. The State 1980 PCr.LJ 103 and Muhammad Sarwar v. The State 1995 PCr.LJ 1152 ref.

Santa Prasad Singh v. Thakur Harkishore Prasad Singh AIR 1939 Patna 389; Badshahzada v. The State 1993 PCr.LJ 699; Haris Khan v. The State PLD 1993 Pesh. 146 and Muhammad Hanif v. The State 1984 PCr.LJ 746 rel.

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

----Ss. 320, 279 & 427---Qatl-e-Khata, rash driving on public way and mischief causing damage---Appreciation of evidence---Benefit of doubt---Culpability in cases of rash and negligent driving---Determination---Principles summarized---Accused was charged for causing death of deceased due to rash and negligent driving---Prosecution case was that vehicle, which was being negligently and rashly driven by accused, collided with the motorcyclist (deceased), who as a result, fell on the road and sustained head injury, complainant and witnesses rushed the injured to the hospital but he succumbed to the injury on the way---Trial Court convicted and sentenced the accused under Ss. 279 & 320, P.P.C., separately---In the present case, since the accident took place and deceased was killed, S. 279, P.P.C. did not apply and the offence would squarely fall within the ambit of S. 320, P.P.C.---Accused's conviction and sentence under S. 279, P.P.C. was illegal---Ocular account of the accident was furnished by three witnesses including complainant---Said witnesses had deposed that on 8.11.1998 at 11.50 a.m., a vehicle driven by the accused collided with the motorcycle of deceased who sustained head injury---Medical Officer had confirmed that the cause of death of the deceased was the said injury---First Information Report showed interpolations which were visible even to the naked eye---Inquest report reflected that when the Investigating Officer drew it up the identity of the person who drove the vehicle, which hit the deceased, was still not known---Prosecution's case was that the delinquent driver fled from the scene immediately after the collision---Admittedly, accused driver was not known to the complainant and the witnesses---No evidence was available as to how complainant and witnesses learnt the name of the accused driver---None of the persons who might have given them information was examined at the trial---Said factors created serious doubt about the involvement of the accused---Presence of complainant and witnesses at the place of occurrence at the relevant time was also not free from doubt---Complainant had deposed that they all owned land near the chowk and had gathered in his field---However, neither during the investigation nor at the trial the witnesses had produced any document which could prove that they had any property there; witnesses did not disclose the purpose of their assembly either---Record showed that there were material contradictions in the prosecution evidence---Complainant deposed that he along with witnesses rushed the injured to the hospital after the accident---Witnesses, in their cross-examination, had denied having accompanied him---Complainant testified that injured died on way to the hospital---In contrast, Medical Officer had stated that death of injured was instantaneous because the entire brain matter had come out---Conduct of the witnesses was contrary to normal human behaviour as it was unnatural for witnesses not to accompany the victim to the hospital and for the complainant to turn back half-way on discovering that injured had expired---In the present case, the witnesses had only alleged that the vehicle in question was being driven at a high speed---No evidence was available that when the incident happened, the condition of the traffic or the road was such that the driver was required to drive the vehicle slowly---Accused driver had not been alleged to have violated any traffic rules---No element of rashness or negligence on the part of driver had been established---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal was accepted and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Ahmad Nawaz and others v. The State and others 2016 PCr.LJ 1267 and Muhammad Ilyas v. Muhammad Abid alias Billa and others 2017 SCMR 54 rel.

Ch. Umar Hayat for Petitioner.

Muhammad Ahsan-ul-Haq, Deputy District Public Prosecutor for the State.

2020 M L D 277

[Lahore]

Before Mujahid Mustaqeem Ahmed, J

MUHAMMAD TAHIR JAVAID---Petitioner

Versus

Mst. SHAHIDA SHAFIQUE and 2 others---Respondents

Writ Petition No. 13699 of 2017, decided on 6th May, 2019.

(a) Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched. & 14---Suit for recovery of dowry articles---Appeal---Scope---Appeal was a substantive right and was considered to be continuation of proceedings---Appellate Court was to rehear law and facts as well as review pleadings and evidence afresh while deciding appeal---Appellate Court was to decide all issues while disposing of appeal considering entire material on record---Appellate Court, in the present case, while deciding appeal had not considered evidence produced by the parties in support of their claims and had relied upon the findings of Trial Court, which was not correct---Impugned judgment passed by the Appellate Court was without any reason---Prices of dowry articles had been fixed on the basis of estimate---Judgment of Appellate Court being result of mis-reading and non-reading of evidence was set aside and matter was remanded to the Appellate Court with the direction to decide the same afresh after appraisal of evidence---Constitutional petition was allowed, in circumstances.

Umar Din v. Ghazanfer Ali and others 1991 SCMR 1816; Gul Rehman v. Gul Nawaz Khan 2009 SCMR 589; Bashir Ahmed v. Mst. Taja Begum and others PLD 2010 SC 906; Muhammad Shabir Shah v. Mst. Dilshad Fatima and others 1991 CLC 786 and Mahmood ul Hassan v. Additional District Judge and others 2019 CLC 71 rel.

(b) Appeal---

----Appeal was continuation of the suit and appellate Court could render its findings after determination of points involved in the suit on each and every issue---Object of appeal was to review the whole case and secure a just judgment upon merits.

Ch. Abdul Ghani for Petitioner.

2020 M L D 286

[Lahore (Bahawalpur Bench)]

Before Mujahid Mustaqeem Ahmed, J

MUHAMMAD MUNEEB KHAN---Petitioner

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION and others---Respondents

Writ Petition No. 6731 of 2019, decided on 27th September, 2019.

(a) Educational institution---

----Petitioner appeared in F.Sc. Part-I and Part-II held in the years 2017 and 2018 respectively, conducted by the Education Board---Petitioner in order to improve his marks applied for appearance in two subjects in Annual Examination 2019, however, he appeared in only one subject and absented himself in the other---Despite the fact that petitioner secured higher marks in the relevant subject, his result card was not issued by the Board on the ground that case of petitioner was hit by R. 19 of Intermediate Examination Rules of the Board which was substituted and had become operational with effect from Annual Examination 2019---Contention of petitioner was that he got admission in F.Sc. in the year 2016 when earlier R. 19 was in the field, as such his case squarely fell within the ambit of said Rule---Validity---Petitioner got admission in F.Sc. in the year 2016 when Marks Improvement Rules, 2014 were applicable---Petitioner, held, had to be governed by earlier Rules and not by subsequent amended/substituted Rules in respect of availing chance for improving the result---Retrospective application of amended Rule in the case of petitioner was not fair, reasonable or in accordance with sound principles---Petitioner was entitled to be dealt with in accordance with law---Constitutional petition was allowed and the Board was directed to issue result card of the petitioner accordingly.

Exon Corporation and Esso Inc. v. Syed Nisar Ahmed Jafry and another 1994 SCMR 918; Sher Muhammad Mazari v. Higher Education Commission of Pakistan through Regional Center and another 2017 YLR Note 368; Syida Uzma Bukhari v. Board of Intermediate and Secondary Education Faisalabad through Chairman and others 2001 YLR 2770 and Muhammad Iqbal Rafi v. The Province of Punjab and others 1985 MLD 956 ref.

Water and Power Development Authority, Lahore through Chairman and others v. Haji Abdul Aziz and others 2012 PLC (C.S.) 1285 and Yousaf Bashir Toor v. The Chairman, Board of Intermediate and Secondary Education, Hyderabad and another 1987 MLD 297 rel.

(b) Public functionaries---

---Public duty cannot be exercised arbitrarily, whimsically or in disregard of law and principles of natural justice.

Malik Imtiaz Mahmood Awan for Petitioner.

2020 M L D 311

[Lahore]

Before Shahid Karim, J

Messrs MIRAN JEE KAY FLOUR AND GENERAL MILLS---Petitioner

Versus

NEPRA and others---Respondents

Writ Petition No. 181856 of 2018, decided on 28th October, 2019.

Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----Ss. 7 & 12A---Electricity Bill---Arrears of electricity bill recoverable from consumer---Incorrect billing by Power Company---Recovery of differential amount by Power Company---Arrears accumulated due to negligence of Power Company could not be waived---Scope----Petitioner impugned order of Appellate Board of National Electric Power Regulatory Authority ("NEPRA") whereby petitioner was found liable to pay for arrears of electricity bill---Contention of petitioner, inter alia, was that petitioner was billed at a lower rate due to negligence of Electricity Company's officials, and such arrears could not be subsequently recovered---Validity---While officers of the Power Company were negligent in remitting the bill for a certain period on basis of certain rates which were not applicable, however the same did not absolve liability accruing against petitioner who was liable to discharge such liability---No period of limitation had been prescribed for the Power Company to initiate recovery proceedings and petitioner could not be permitted to take advantage of negligence of its officials and could not be unjustly enriched by the same---No legitimate expectation existed in favour of petitioner to urge that such arrears were not due from petitioner or that the same be waived---No illegality existed in the impugned order---Constitutional petition was dismissed, in circumstances.

Barrister Usman G. Rasheed Cheema for Petitioner.

Aurangzeb Mirza for GEPCO.

2020 M L D 342

[Lahore]

Before Muhammad Waheed Khan, J

ABDUL REHMAN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 152-J of 2016, decided on 4th July, 2019.

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

----Ss. 302, 364, 365, 148 & 149---Qatl-i-amd, kidnapping or abducting in order to murder, kidnapping or abducting with intent to secretly and wrongfully confine person, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Delay of more than two days in lodging the FIR---Effect---Consultation and deliberations---Occurrence as stated in FIR took place on 16.04.2014 at about 8.00/9.00 p.m. and the matter was reported to police on 18.04.2014 at 12.10 (night), in which complainant and others witnesses claimed that the accused persons along with two unknown accused came to the house of the complainant and asked to send his son (deceased) with them, as they had an urgent piece of work and while trusting them, complainant sent his son with them, who never came back---Said facts showed that right from the beginning, the complainant had knowledge that his deceased son had gone with the accused persons but in spite of that, he reported the matter with a delay of about more than 48 hours, which created a doubt qua the story advanced by the prosecution---Circumstances suggested that FIR was registered after consultation and due deliberation, which was fatal to the prosecution case.

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

----Ss. 302, 364, 365, 148 & 149---Qatl-i-amd, kidnapping or abducting in order to murder, kidnapping or abducting with intent to secretly and wrongfully confine person, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Circumstantial evidence---Prosecution case was that the accused persons along with two unknown accused came to the house of the complainant and asked to send his son (deceased) with them as they had an urgent piece of work and while trusting them, complainant sent his son with them, who never came back---Accused persons in connivance with each other abducted the son of complainant and thereafter murdered him---Motive for the occurrence was stated to be that the accused suspected the deceased of having illicit relations with the wife of co-accused---In order to prove the last seen, complainant reiterated the story which he had already narrated while lodging the FIR as to how the accused persons along with two unknown accused called his son from his house and took him along---Other witness also reiterated the story of last seen almost in a similar manner---Complainant while lodging FIR had categorically stated that the motive for the occurrence was that the accused persons suspected the deceased of having illicit relations with the wife of co-accused---Complainant, in such backdrop could not allow the deceased to go with the accused persons---Said version of the complainant was irreconcilable and could not be believed on any hypotheses---Circumstances established that the story of last seen cooked up by the prosecution was nothing but afterthought because same did not appeal to a prudent mind---Record showed that three co-accused persons, who were similarly placed in the present case, had been acquitted by the Trial Court by disbelieving the same set of evidence, so, relying the prosecution evidence qua the guilt of present accused-appellants was not safe rather could not be justified on any stretch of imagination---Case being based on circumstantial evidence, so, prosecution was liable to prove the guilt of the accused through complete chain one side of which was touching the body of the deceased and the other end going to the neck of the accused, leaving no scope for the court to believe any other reasonable hypotheses other than the guilt of the accused---Many missing links existed in the chain of prosecution story and the prosecution could not successfully prove the charge against the accused-appellants beyond shadow of reasonable doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court.

Cr. Miscellaneous Application No.200 of 2019 in Cr. Appeal No.238-L of 2013 = PLD 2019 SC 527 rel.

(c) Criminal trial---

----Evidence---Last seen evidence---Scope---Evidence of last seen was a weakest type of evidence, unless corroborated with some independent piece of evidence it could not be relied upon.

Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 and Muhammad Abid v. The State and another PLD 2018 SC 813 rel.

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

----Ss. 302, 364, 365, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i-amd, kidnapping or abducting in order to murder, kidnapping or abducting with intent to secretly and wrongfully confine person, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of dead body and other articles on the disclosure made by accused persons---Reliance---Scope---Investigating Officer had stated that on 18.04.2014 he arrested the accused persons and during the course of investigation, they made disclosure that they had committed the murder of deceased after abducting him and buried the body of deceased in the house of accused-appellant---In consequence of their disclosure, Investigating Officer got recovered the dead body from western side of courtyard of the house of accused-appellant---No memo of recovery of dead body had been prepared by the Investigating Officer to supplement his stance---Non preparation of recovery memo of dead body created serious doubt qua the veracity of prosecution assertion---Dead body of deceased had been recovered on the disclosure of four accused persons jointly---Safa, shovel and Toyamar of the deceased from the possession of accused-appellant were not blood stained and were of ordinary use and generally were available in every home in village, so, recovery of said articles allegedly effected from both accused-appellants hardly advanced the case of prosecution.

(e) Criminal trial---

----Joint recovery---Evidentiary value---Joint recovery was inadmissible in evidence.

Muhammad Mushtaq v. Mustansar Hussain and others 2016 SCMR 2123 rel.

Ijaz Ahmad Chadhar for Appellants.

Haider Ikram Ullah for the Complainant.

Ms. Tahira Parveen, District Public Prosecutor for the State.

2020 M L D 368

[Lahore]

Before Shujaat Ali Khan, J

MUKHTAR AHMED SHAHZAD---Petitioner

Versus

MUHAMMAD ADEEL and others---Respondents

Writ Petition No. 20142 of 2019, decided on 28th November, 2019.

Guardians and Wards Act (VIII of 1890)---

----S. 25---Custody of minor---Welfare of minor---Second marriage by father---Contest between maternal grandfather and real father of minor---Scope---Petitioner / grandfather impugned order of Appellate Court whereby custody of minor granted to grandfather by Guardian Court, was set aside---Validity---Minor had been living with maternal grandfather since last six years when the minor's now deceased mother had been abandoned by the husband / father---Husband / father had contracted second marriage out of which he had two children, therefore handing over minor to him would leave minor at mercy of step-mother---When a father contracted second marriage, his right for appointment as guardian in routine vanished, and the Court was supposed to be more cautious in such cases---Father, in the present case, had made no effort to see minor over the years, which showed his lack of interest in minor's welfare---Grandfather was ready to arrange meeting of minor with real father---High Court set aside impugned order and held that petitioner / maternal grandfather was to be guardian of minor, and prescribed schedule / conditions of meeting of minor with father---Constitutional petition was allowed, accordingly.

Para Nos.353 and 353 of Mohammadan Law by D.F. Mullah ref.

Muhammad Ashraf v. Mst. Sakina and 2 others 1989 SCMR 1277; Mst. Naseem and another v. Ali Akbar and another PLD 2015 Bal. 30; Fazlur Rehman v. Mst. Shazia Bibi and 2 others 2015 CLC 116; Shaukat Pervez Butt v. Mst. Nargis Sultana and another PLD 1988 Lah. 290 and Jamshed Sultan Taimoori v. Mst. Anisa Begum PLD 1980 Kar. 299 rel.

Rana Rashid Akram Khan for Petitioner.

2020 M L D 452

[Lahore (Bahawalpur Bench)]

Before Syed Shahbaz Ali Rizvi and Farooq Haider, JJ

Mst. PARVEEN---Petitioner

Versus

The STATE and others---Respondents

Criminal Appeal No. 422 of 2011, decided on 13th March, 2019.

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

----S. 265-K---Power of court to acquit accused at any stage---Scope---Appellant challenged the acquittal order, inter alia, on the ground that it was mentioned in the impugned judgment that application under S. 265-K, Cr.P.C. was submitted by accused persons but no such application was filed---Validity---Appellant had not annexed any document/material to substantiate her claim although she was at liberty to move an application for getting attested copy of application under S. 265-K, Cr.P.C.---Had the application not been filed then the Ahlmad of the concerned court and the Copying Agency would have reported that no such application was filed---Appellant did not raise objection that neither any application had been filed nor copy of such application was delivered to her---High Court repelled the contention regarding non-filing of application under S. 265-K, Cr.P.C.

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

----Ss. 265-K & 342---Power of court to acquit accused at any stage---Examination of accused---Scope---Trial Court, after incorporation of S. 265-K, Cr.P.C., has been empowered to acquit the accused at any stage when it finds that there is no probability of his conviction---Recording of statement of an accused under S. 342, Cr.P.C. before his acquittal under S. 265-K, Cr.P.C. is not necessary because if no incriminating material is available on record then nothing is to be put to accused under S. 342, Cr.P.C.---Straightaway acquittal while exercising power under S. 265-K, Cr.P.C. is true intent of the law on the subject.

Muhammad Khalid Mukhtar v. The State through Deputy Director, F.I.A. (C.B.A.), Lahore PLD 1997 SC 275 rel.

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

----S. 265-K---Power of court to acquit accused at any stage---Oral request of accused---Suo moto---Scope---Trial Court can exercise powers under S. 265-K, Cr.P.C. on the oral request of the accused or of its own.

(d) Appeal against acquittal---

----Order of acquittal cannot be interfered with unless it is capricious, fanciful, perverse or arbitrary.

(e) Appeal against acquittal---

----Accused after acquittal attains double presumption of innocence.

Haji Paio Khan v. Sher Biaz and others 2009 SCMR 803 ref.

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

----Art. 129(e)---Presumption as to judicial acts---Scope---Presumption of correctness is always attached in favour of judicial proceedings.

Talat Mehmood Kakezai for Appellant.

Ch. Asghar Ali Gill, Deputy Prosecutor General for the State.

2020 M L D 474

[Lahore]

Before Anwaarul Haq Pannun, J

SAFARISH ALI---Petitioner

Versus

The STATE and 2 others---Respondents

Criminal Miscellaneous No. 27074-M of 2019, decided on 13th June, 2019.

Penal Code (XLV of 1860)---

----S.322---Criminal Procedure Code (V of 1898), S. 176---Qatl-bis-Sabab---Appreciation of evidence---Disinterment of dead body, application for---Scope---Petitioner contended that disinterment of dead body of the deceased (wife of the petitioner) had been wrongly allowed by the Courts below and contended that during cleaning of a pistol by his son, inadvertently its trigger got pressed, two fire shots emitted out of it hitting the abdomen of his wife---Petitioner did not inform the police due to her critical condition and shifted her to the hospital, but she succumbed to injuries---Petitioner, being husband of the deceased, along with other legal heirs neither wanted to get the post-mortem examination of the dead body of the deceased nor register a criminal case---Station House Officer Police Station instead of registering a criminal case, only recorded Rapt and entrusted the matter to his subordinate Police Officer to inquire under S. 174, Cr.P.C.---Said Police Officer moved application to the Judicial Magistrate to get permission for post-mortem examination over the dead body of the deceased---Judicial Magistrate after recording presence of legal heirs, without due verification from any independent quarter, turned down the request of the police by giving observation that since the death of the deceased was result of receiving accidental fire shots the legal heirs of the deceased did not want to get the post-mortem examination conducted over her dead body---Mother of the deceased, later on, submitted application before the Judicial Magistrate requesting for disinterment and post mortem over her dead body---Said applicant contended that the death of the deceased was not the result of accidental fire shot rather the same was an intentional murder, committed by her husband and son, through two successive fire shots---Said application was allowed by the Judicial Magistrate---Revision was filed against the said order, which was dismissed---Validity---Admittedly, death of deceased was result of two successive fire-arm shots by the real son of deceased who cleaning the pistol---Death certificate of deceased also confirmed that she had died as a result of firearm shots---Contents of present petition clearly showed the commission of offence, qatl-bis-sabab, punishable under S.322, P.P.C., which was a cognizable offence---Order passed by the Judicial Magistrate whereby he turned down the request of the police for post-mortem examination, on the concession of the legal heirs of the deceased, amounted to diverting the process of law by allowing the legal heirs to compound the offence by way of application to waive their rights of qisas---Said order appeared to be illegal---Courts below had passed the impugned orders quite in accordance with the law as the medical evidence could not be dispensed with for establishing a charge or offence, against a human body---Petition having no force was dismissed accordingly.

Abdul Sattar Ch. for Petitioner.

Muhammad Moeen Ali, Deputy Prosecutor General for the State.

2020 M L D 502

[Lahore]

Before Farooq Haider, J

GHULAM MOHY-UD-DIN---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 458 and Criminal Revision No. 278 of 2017, decided on 16th October, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Initially, case was registered against unknown accused persons for committing murder of husband of the complainant, but later accused was charged for committing murder of the husband of complainant by administering him intoxicated tablets---Motive behind the occurrence was stated to be some money dispute of deceased with accused---Record showed that it was a blind occurrence---Neither any accused nor any eyewitness had been mentioned in the application for registration of case---No motive was mentioned in the FIR---Prosecution's own case was that the name of the accused came on record during investigation of the case only after alleged extra judicial confession and not prior to that---Circumstances suggested that it was not understandable that what compelled the accused and why he allegedly confessed the crime, particularly before the persons, who being closely related to the deceased who could cause him more harm than good---Such aspect raised eyebrows and left question mark about genuineness of that piece of evidence---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 and Nasir Javaid and another v. The State 2016 SCMR 1144 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Extra-judicial confession---Scope---In the present case, accused had made extra-judicial confession in presence of complainant, brother of complainant, brother-in-law of complainant and Police Officer---Said witnesses were closely related to the deceased---Said witness stated that accused was all alone and empty handed at the time of occurrence---Record was silent as to how accused escaped after alleged confession---Said scenario on the one hand suggested that conduct of the cited witnesses was not natural and on the other hand suggested that said piece of evidence was neither believable nor reliable rather same had been introduced after finding no other evidence in the case---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 rel.

(c) Criminal trial---

----Extra-judicial confession---Evidentiary value---Extra-judicial confession was the weakest type of evidence and it could only be taken into consideration if firstly it rang true and then found support from other strong and tangible evidence of unimpeachable character.

Imran alias Dully and another v. The State and others 2015 SCMR 155 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence---Delay in dispatch of recovered weapon---Effect---Accused was charged for committing murder of husband of the complainant---Record showed that occurrence allegedly took place in the intervening night of 10/11.10.2014 and dead body of the deceased was found on 11.10.2014---Weapon of offence (churi) was recovered on the pointing out of the appellant on 16.11.2014 i.e. after about 35 days of the occurrence---Recovered churri was sent to Forensic Science Agency on 24.11.2014 i.e. after more than 43 days of the occurrence---Admittedly, human blood disintegrated after three weeks and after such period, any expert report with respect to presence of blood on the weapon of offence, carried no value---Report of Forensic Science Agency, regarding Churi, in circumstances, was inconsequential---Without grouping of blood, recovery of Churi and report of Forensic Science Agency was of no consequence---Prosecution had produced one recovery witness of the Churi---One witness could not corroborate himself, therefore, he being recovery witness could not provide any corroboration to his own testimony---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Faisal Mehmood v. The State 2016 SCMR 2138; Khalid Javed and another v. The State 2003 SCMR 1419; Muhammad Asif v. The State 2017 SCMR 486; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 and Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive was not proved---Effect---Record showed that no motive was mentioned in the application for registering FIR---Complainant in second application had mentioned dispute of money between appellant and deceased---During trial, complainant produced cheque and Iqrar Nama to prove said money dispute---Perusal of cheque revealed that same was not issued in the name of deceased and it was yet not dishonoured rather it was containing date as 12.12.2020---Handwriting and signature available on the cheque were not got compared or verified from any expert---Iqrar Nama was not got duly proved, as its scribe or stamp vendor or any attesting witness or Oath Commissioner/ Notary Public was not produced---Even signature and thumb impression available on the same were not got compared/verified from any expert---Investigating Officer did not investigate the motive---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Muhammad Khan Dall for Appellant.

Sh. Muhammad Nauman Siddique, Deputy Prosecutor General and Ms. Maida Sobia, Deputy Prosecutor General for the State.

Barrister Bilal Ashraf Baloch for the Complainant.

2020 M L D 548

[Lahore (Rawalpindi Bench)]

Before Muhammad Tariq Abbasi and Raja Shahid Mahmood Abbasi, JJ

STATE through Prosecutor General Punjab---Appellant

Versus

NASEEB SHAH and 5 others---Respondents

Criminal Appeal No. 58 of 2014, heard on 25th September, 2019.

Explosive Substances Act (VI of 1908)---

----Ss. 4, 5 & 7---Anti-Terrorism Act (XXVII of 1997), Ss. 7 & 19(8-B)---Criminal Procedure Code (V of 1898), S. 417---Act of terrorism---Attempt to cause explosion or making or keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances---Appeal against acquittal---Restriction on trial of offences---Failure of prosecution to apply for consent of Provincial Government---Effect---Accused persons were charged under S. 5 of Explosive Substances Act, 1908---Sanction of the Provincial Government under S. 7 of Explosive Substances Act, 1908 for holding trial was mandatory and a condition precedent for prosecution of the accused persons---Entire proceedings, in the absence of requisite sanction/permission, were void and without jurisdiction---Word "shall" used in S. 7 of Explosive Substances Act, 1908 left no room for any departure therefrom---Section 19(8-B), Anti-Terrorism Act, 1997, however, made a relaxation to the effect that if sanction was applied but not granted by the competent authority within 30 days then the due proceedings towards initiation of trial could be carried on---Section 19(8-B), Anti-Terrorism Act, 1997 required the request for prosecution to have been made---When there was mention of receipt of consent or sanction within thirty days, it impliedly indicated to sending and seeking consent/sanction---No such request having been made, prosecution and trial under S. 7 of Explosive Substances Act, 1908 and S. 19(8-B) of Anti-Terrorism Act, 1997 was not competent and possible---Such fact alone was sufficient to give premium of acquittal to the accused persons---Impugned judgment was not open to any exception and as such did not warrant any interference---Appeal against acquittal was dismissed.

Naveed Ahmed Warraich, DDPP with Sohail, Inspector for the State.

Rao Abdur Raheem for Respondents Nos. 4 and 5.

Respondent No.3 has since died.

2020 M L D 562

[Lahore]

Before Rasaal Hasan Syed, J

MUHAMMAD YOUNAS AMIN through General Attorney---Petitioner

Versus

ABDUL MAJEED through L.Rs. and others---Respondents

Writ Petition No. 68593 of 2019, decided on 15th November, 2019.

(a) Administration of justice---

----Moulding of relief---Jurisdiction---Courts were to explore avenues to do justice---All efforts were to be made to decide cases on merits---Court and tribunals have a jurisdiction to mould relief according to circumstances of case.

Mst. Amina Begum and others v. Mehar Ghulam Dastagir PLD 1978 SC 220 rel.

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

----S. 12(2), O. V, R. 17 & O. IX, R. 13---Limitation Act (IX of 1908), Art. 181---Setting aside of judgment---Non-serving of summons---Ex parte judgment and decree passed in favour of plaintiff was set aside by Trial Court and order was maintained by Lower Appellate Court in exercise of revisional jurisdiction---Validity---Trial Court passed a decree on basis of alleged proclamation in newspaper---Court had not passed any speaking order as to why it had not made any efforts for personal service of defendant and why mechanical orders were passed for affixation and proclamation---Summonses were returned un-served and Court directed issuance of fresh summons and notice through ordinary process and registered post and proceeded to direct affixation---No previous summons was ever served upon defendant nor there was any report of process server for avoidance of service or refusal to accept service---Trial Court proceeded to pass order for publication in unknown newspaper without examining process server as to efforts, if any, made by him and steps taken by him to ensure personal service and as to why he could not procure personal service---Care was also not taken to examine as to whether report of process server satisfied requirements of O. V, R. 17, C.P.C. so as to reflect time and date of service, names of persons who identified place and defendant and witnesses, if any, in whose presence alleged affixation was claimed and as to whether report was reportedly verified on oath as required by law---Without adhering to such prerequisites, order for publication of notice could not possibly be made---Lower Appellate Court had taken note of all relevant factors and thereafter concluded that it was primary duty of court to provide opportunity of hearing---No one could be condemned unheard and that decree under challenge could not be held up and was rightly set aside under S. 12(2), C.P.C.---Application was undeniably filed within period prescribed by Art. 181 of Limitation Act, 1908---Sufficient reasons existed to treat case on merits in view of inherent legal flaws and jurisdictional error in proceedings of Trial Court which resulted in ex-parte decree---High Court declined to interfere in orders passed by Lower Appellate Court as it was not a fit case for interference in revisional jurisdiction and thus did not suffer from any error of law or jurisdiction---Petition was dismissed in circumstances.

Syed Muhammad Anwar, Advocate v. Sheikh Abdul Haq 1985 SCMR 1228 rel.

2020 M L D 588

[Lahore]

Before Aalia Neelum, J

MUHAMMAD MUSHTAQ---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.314-J of 2013, decided on 19th September, 2019.

Penal Code (XLV of 1860)---

----S. 376 ---Rape---Appreciation of evidence---Ocular and medical evidence---Corroboration---Accused was charged for committing rape with the daughter of complainant---Ocular account of the occurrence had been furnished by complainant, victim and a witness---First Information Report of the case was lodged on the same day, wherein the accused was named with specific role---Nothing was available on the record to doubt the authenticity of the FIR---Victim, at the time of incident, was wearing qameez and shalwar and having dopatta---Victim had specifically stated that accused removed her shalwar and committed rape on her---Complainant stated that when they entered the room the accused was busy in committing rape forcibly with his daughter---Victim was lying there in naked condition and blood was oozing out from the vagina---Victim stated that she raised hue and cry---Accused left her in naked position---Victim had been wearing the same shalwar without washing herself immediately after the act, thus, it was quite possible that her clothes were stained with semen---Victim and prosecution witnesses did not have any motive to make a false accusation against the accused, with the charge of rape at the risk of victim's and family honour---Besides, there was no time or occasion to manipulate semen stains on victim's clothes---Clothes of victim were sent for Chemical Analysis and DNA by Lady Medical Officer---Report of the Chemical Examiner showed that her clothes were stained with semen---Semen found on victim's clothes and shalwar of accused was of the group of accused---Observation by Lady Medical Officer during medico-legal examination of victim clearly made out that the victim had been subjected to rape as stated by the victim---Lady Medical Officer stated in her statement that victim was wearing red and yellow qameez shalwar and white printed dopatta, which were blood stained---Multiple reddish abrasions present in pre-hymeneal area, hymen ruptured, posterior fresh, bleeding present were observed---After short span of the incident, medical examination of the victim and accused was conducted and DNA report was positive---Medical evidence had corroborated the evidence of the victim---Testimony of victim was cogent and credible not only due to her social background but also due to the fact that her version had been clearly corroborated by the other materials---Appeal was dismissed.

Muhammad Asif Bhatti for Appellant.

Imdad Hussain Chattha, Deputy Prosecutor General for the State.

2020 M L D 606

[Lahore Rawalpindi Bench]

Before Sayyed Mazahar Ali Akbar Naqvi and Muhammad Tariq Abbasi, JJ

SAJJAD HAIDER---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 376 of 2017, decided on 6th December, 2017.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Control of Narcotic Substances Act (XXV of 1997), S. 74---Order for custody and disposal of property pending trial---Scope---Prosecution alleged that narcotic was recovered from the vehicle of appellant, wherein the accused person was sitting---Appellant contended that he was the lawful owner of the vehicle, which was registered against his name in the relevant record; that he was engaged in the business of rent-a-car and that the vehicle was rented to the accused for which a receipt was also procured---Prosecutor placed reliance on S.74, Control of Narcotic Substances, 1997 for denial of relief of superdari---Held; where the owner of the vehicle was not accused of the case and had no knowledge that his vehicle would be used for trafficking the narcotics, the provisions of S. 74, Control of Narcotic Substances Act, 1997 did not create any bar for giving the vehicle to the owner on temporary custody---Appellant was entitled to temporary custody of the vehicle---Appeal was allowed, in circumstances.

Allah Ditta v. The State 2010 SCMR 1181 rel.

Barrister Osama Amin Qazi for Appellant.

2020 M L D 649

[Lahore (Bahawalpur Bench)]

Before Farooq Haider, J

KHURSHEED AHMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 361-J of 2015, decided on 25th March, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delayed post-mortem---Chance witness---Contradiction in medical and ocular evidence---Acquittal of co-accused on same set of evidence---Scope---Accused was alleged to have murdered two persons with the help of co-accused persons---Occurrence took place at 10:30 a.m. and although the FIR was recorded at 11:30 a.m. yet the postmortem of second deceased was conducted after a delay of about 14½ hours of the occurrence---No time of postmortem examination of first deceased was mentioned in his postmortem report---Eye-witnesses, being chance witness, could not establish any valid and plausible reason regarding their presence at the time of occurrence---Eye-witness of second murder claimed that accused fired at the deceased which hit on her flank but postmortem examination did not show any firearm injury on her body---Two co-accused persons who were attributed effective role of inflicting injuries to the deceased person had been acquitted and there was no strong and independent corroboration against the accused---Accused/appellant could not be convicted on the same set of evidence---Prosecution had failed to prove its case against the accused---Appeal was allowed, in circumstances.

Javaid Akbar v. Muhammad Amjad and Jameel alias Jeela and another 2016 SCMR 1241; Shahbaz v. The State 2016 SCMR 1763; Haroon Shafique v. The State and others 2018 SCMR 2118; Khalid Javed and another v. The State 2003 SCMR 1419; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Shahbaz v. The State 2016 SCMR 1763; Zafar v. The State and others 2018 SCMR 326 and Azhar Iqbal v. The State 2013 SCMR 383 ref.

Haroon Shafique v. The State and others 2018 SCMR 2118 and Altaf Hussain v. The State 2019 SCMR 274 rel.

(b) Criminal trial---

----Medical evidence---Scope---Medical evidence is only supporting type of evidence, which can tell about number, locale of injury and weapon used for causing the injuries but cannot tell about the author of the injuries.

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

----S. 302(b)---Qatl-i-amd---Motive---Dishonest improvement--- Scope---Complainant's version in the FIR was that accused had suspicion that the deceased persons (male and female) had illicit relations---Complainant while appearing in the court did not narrate the reason of illicit relationship as motive rather introduced another motive that the complainant party had beaten the accused party after they had chased the wedding procession of deceased and at that time accused claimed that the deceased persons had developed illicit relationship---Dishonest improvement of the complainant was available on record---High Court held that even the changed and newly introduced motive could not be proved by the complainant.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd---Recovery of weapon---Search to be made in the presence of witnesses---Delayed recovery---Scope---Accused had allegedly got recovered a .12 bore gun and hatchet---Accused was not alleged to have hatchet with him at the time of occurrence rather he was only stated to be equipped with gun---Hatchet was recovered after 26 days of the occurrence---Blood disintegrated in a period of about three weeks, therefore, reports of Chemical Examiner and of Serologist were of no help to the case of prosecution---Several persons of the vicinity had attracted to the place of recovery but none of them was cited as witness---Recovery of gun could not be considered as recovery from exclusive possession of the accused---Prosecution could not produce any witness through whom hatchet, empties and gun were got deposited in the concerned offices of Chemical Examiner and Forensic Science Laboratory---Investigating Officer deposed that said articles were sent through a constable but the constable, while appearing as a witness, had not stated so---Prosecution failed in proving safe custody of allegedly recovered hatchet, empties and .12 bore gun from the date of recovery till their receipt in the offices of concerned laboratories.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 ref.

Faisal Mehmood v. The State 2016 SCMR 2138 rel.

(e) Criminal trial---

----Benefit of doubt---Scope---Single dent in the case of prosecution is sufficient for acquittal of accused.

Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Akram v. The State 2009 SCMR 230; Muhammad Zaman v. The State and others 2014 SCMR 749; Muhammad Mansha v. The State 2018 SCMR 772; Abdul Jabbar and another v. The State 2019 SCMR 129 and Mst. Asia Bibi v. The State and others PLD 2019 SC 64 ref.

(f) Criminal trial---

----Maxim: Falsus in uno, falsus in omnibus---Applicability.

PLD 2019 SC 527 rel.

Malik Dost Muhammad for Appellant.

Malik Mudassir Ali, Deputy Prosecutor-General for the State.

Complainant in person.

2020 M L D 679

[Lahore]

Before Sardar Muhammad Sarfraz Dogar, J

MUHAMMAD JAFFAR---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous Nos. 59949-B, 1 and 2 of 2019, decided on 14th November, 2019.

(a) Criminal Procedure Code (XLV of 1860)---

----S. 497---Penal Code (XLV of 1860), Ss. 324, 337-D & 34---Attempt to commit qatl-i-amd, jaifah, common intention---Bail, refusal of---Recovery of weapon of offence---Delay in lodging FIR not attributable to complainant party---Effect---Accused was alleged to have caused chhuri blow to the injured---Held; accused was nominated in the FIR with a specific role of causing a chhuri blow in the belly of the injured, which extended to his body cavity---Chhuri blow had not only entered in the body cavity but had also affected the left lung, which was a vital part of body---Offence under S.337-D, P.P.C. was fully attracted to the present case---Accused contended that there was an unexplained delay of three days in reporting the matter to the police---Medico-Legal Certificate of the injured transpired that he was removed to the hospital in the company of a police constable, meaning thereby, the matter was promptly reported to the police, as such, the delay was not attributable to the complainant---Chhuri, during the investigation, was recovered on the pointation of accused---Accused was found guilty during the course of investigation---No apparent conflict existed in the ocular, medical and recovery evidence---Prima facie, sufficient material was available on record to connect the accused with the commission of the alleged offence, therefore, he was not entitled to the concession of post-arrest bail---Petition for grant of bail was dismissed, in circumstances.

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

----S.337-C---Jaifah---"Body cavity", meaning---Scope---Section 337-C, P.P.C. provides that whoever causes Jurh in which the injury extends to the "body cavity" of the trunk is said to cause "Jaifah"---Word 'body cavity' means a body part under which vital organs are located, and if an injury penetrates into body cavity and then enters that part of body wherein vital organs are located only then that can be treated as "Jaifah" and punishment can be awarded accordingly.

Rana Nawazish Ali Khan for Petitioner.

Muhammad Ahmed Saeed, D.P.G. for the State with Ashraf, S.I.

2020 M L D 690

[Lahore]

Before Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

EWIZ KHAN---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 2170 and Capital Sentence Reference No. 40-N of 2011, heard on 2nd October, 2019.

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

----S. 9(c)---Possession and trafficking of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that eleven kilograms heroin was recovered from two metal decoration pieces belonging to accused---Out of the recovered substance, two sample parcels of 5-grams each were prepared for chemical analysis---Record showed that prosecution had not established safe custody of recovered substance---Seizure of the alleged narcotic substance was shown to have been made on 25.02.2010 at 9.40 p.m.---Two parcels of samples weighing five grams were taken from the seized substance---One parcel of remaining seized substance was prepared at the spot---Complainant stated that at 3.00 a.m. he handed over complaint at Customs House---First Information Report showed that incident was reported to Customs Authorities at 11.50 a.m. on 25.5.2010---Official witness deposed that complaint was received a 9.30 p.m. and FIR was lodged at 9.45 p.m.---Inconsistencies and contradictions with regard to the deposit of the parcels of the samples, remaining recovered contraband and time of reporting incident were apparent---From the time of the seizure till the deposit of parcels of samples and remaining contraband in the State Ware House, it was not established as to where those were laid or handled by how many people and in what ways---Mere oral evidence of the prosecution witnesses did not discharge the heavy burden of responsibility, which lay on the prosecution---Prosecution had not been able to prove safe custody of the recovered substance through material and cogent evidence---No evidence was available to connect the report of Chemical Examiner with the substance seized from the possession of the accused---Said fact alone created a ground to believe that the parcels of sample and case property were not kept in safe custody and the claim of the prosecution that the case property was not tampered with was doubtful---Moharrar/incharge of the Ware House as well as the person who deposited the sealed parcel of the samples with the office of the Chemical Examiner had not been examined by the prosecution---In absence of deposition by the moharrar/incharge of the Ware House to whom sealed parcel of sample and remaining contraband was handed over for keeping in safe custody and the person who carried the sealed parcel of the sample to the Chemical Examiner to the effect that the parcel of the sample remained intact and had not been tampered with, conviction by the Trial Court was liable to be set aside---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Major (R) Farooq Ahmad Ali and Muhammad Sajjad Qureshi for Appellant.

Muhammad Sharif, Special Prosecutor Customs for the State.

2020 M L D 719

[Lahore (Multan Bench)]

Before Asim Hafeez, J

PROVINCE OF PUNJAB and another---Petitioners

Versus

MANZOOR HUSSAIN and others---Respondents

Civil Revision No. 495-D of 2011, decided on 3rd December, 2019.

Allotment---

----Failure to fulfil conditions of allotment---Cancellation of allotment---Allottee could not fulfill conditions of allotment and the same was cancelled---Allottee never appeared before the Court as a witness and had failed to prove that he approached the authorities for completion of formalities/conditions---Allottee could not unilaterally waive the conditions required to be performed---No right could be claimed without fulfilment of requisite conditions---Allotment per se did not create enforceable rights unless requisite conditions were performed which requirement was a condition precedent and survival of agreement was dependent thereupon---If conditions were not fulfilled till a specific date then allotment would be deemed or treated as cancelled without any overt act on the part of the authorities---Courts below had failed to appreciate that allotment was conditional and unless such conditions were fulfilled no vested right or conclusive allotment could be claimed by the allottee---Impugned judgments and decrees passed by the Courts below were set aside and suit was dismissed---Revision was allowed.

Muhammad Ishaq and another v. Mst. Sufia Begum 1992 SCMR 1629 and G.R. Syed v. Muhammad Afzaal PLD 2007 Lah. 93 rel.

Azhar Saleem Kamlana, A.A.G on behalf of Petitioner.

2020 M L D 750

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi, J

ANA KHALID and 3 others---Petitioners

Versus

The VICE-CHANCELLOR UNIVERSITY OF EDUCATION, LAHORE and others---Respondents

Writ Petition No. 63374 of 2019, decided on 9th December, 2019.

(a) Ph. D. Regulations, 2003---

----Cls. 4.2 & 4.3---Ph. D. Regulations 2013, Cls. 3.8 & 4.2---Constitution of Pakistan, Arts. 4, 9, 14, 18, 20 & 37(c)---Ph.D. Thesis, non-acceptance of---Petitioners were Ph.D. Candidates who assailed dismissal of submission of their theses on grounds that submission was beyond period---Validity---Application was submitted by petitioners so that their theses could be entertained and upon personal hearing they were informed that theses would be submitted under Ph.D. Regulations, 2003 instead of Ph.D. Regulations, 2013---Admission of petitioners was not regularized by the Registrar and they were deprived from filing their Ph.D. Theses and to award them their Ph.D. Degree---Non-allowing petitioners to submit their theses showed that it was violative of basic principles of natural justice---Denial in such regard was in conflict with Fundamental Rights guaranteed under Arts. 4, 9, 14, 18, 20 read with Art. 37(c) of Constitution---High Court directed university to entertain and evaluate Ph.D. Theses of petitioners and award them their Ph.D. Degrees if they rose upon standards of university, setting aside order passed by Vice Chancellor---Constitutional petition was allowed accordingly.

Imdad Hussain v. Province of Sindh through Secretary to Government of Sindh, Karachi and 3 others PLD 2007 Kar. 116 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court, exercise of---Substantial justice---Scope---Technicality of law and rule could not operate as an absolute bar in way of court as preference in this regard would defeat substantial justice.

Mst.Shahista Bibi and another v. Superintendent Central Jail Mach and 2 others PLD 2015 SC 15 and Nizamuddin and another v. Civil Aviation Authority and 2 others 1999 SCMR 467 rel.

Rai Nazakat Abbas Bhatti for Petitioners.

Shoaib Zafar, Additional Advocate General Punjab.

2020 M L D 772

[Lahore (Bahawalpur Bench)]

Before Mujahid Mustaqeem Ahmed, J

GHULAM MURTAZA---Appellant

Versus

MUHAMMAD RAFI---Respondent

R.F.A. No. 100 of 2012, decided on 2nd May, 2018.

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

----O. XXXVII, Rr. 1 & 2---Negotiable Instruments Act (XXVI of 1881), S. 118---Summary suits upon bills of exchange---Presumption as to negotiable instrument---Dishonoured cheque---Endorsement for consideration---Burden of proof---Scope---Plaintiff filed suit for recovery of Rs.5,00,000/- on the basis of dishonoured cheque and claimed that the defendant had borrowed the said amount---Defendant contended that he had issued an open cheque on account of fiscal liability but the liability stood discharged on account of certain transactions and he was liable to pay only Rs. 13,000---Trial Court decreed the suit---Validity---Plaintiff had not mentioned any specific date either in the plaint or in evidence as to when the loan amount was advanced to the defendant---Stance of plaintiff was not believable that just on the request of defendant such a huge amount was advanced without any documentation or even issuance of cheque at that time---Parties had no blood or family relation---Plaintiff contended that cheque was a negotiable instrument and since the defendant had not denied its issuance therefore burden of proof of non-payment of consideration was on the defendant---Presumption under S. 118 of Negotiable Instruments Act, 1881 was not a conclusive presumption of drawing consideration of a negotiable instrument, rather it was rebuttable in nature and initial burden of proving that the negotiable instrument was executed against consideration was on the plaintiff---Plaintiff had failed to discharge the initial onus of passing on Rs. 5,00,000/- to the defendant---Appeal was allowed; impugned judgment and decree was set aside and the suit of plaintiff was dismissed.

Muhammad Aziz-ur-Rehman v. Liaqat Ali 2007 CLD 1605; Muhammad Nawaz v. Qazi Muhammad Rashid 2018 CLC Note 34 and Asif Ali and 6 others v. Saeed Muhammad 2010 CLD 1301 ref.

Salar Abdur Rauf v. Mst. Barkat Bibi 1973 SCMR 332 rel.

(b) Negotiable Instruments Act (XXVI of 1881)---

----S. 118---Presumption as to negotiable instruments---Dishonoured cheque---Endorsement for consideration---Burden of proof---Scope---Presumption under S. 118 of Negotiable Instruments Act, 1881 is not a conclusive presumption of drawing consideration of a negotiable instrument, rather it is rebuttable in nature and initial burden of proving that the negotiable instrument is executed against consideration is on the plaintiff.

Salar Abdur Rauf v. Mst. Barkat Bibi 1973 SCMR 332 rel.

Muhammad Saleem Faiz for Appellant.

Ghulam Shabbir Shah for Respondent.

2020 M L D 794

[Lahore]

Before Aalia Neelum and Sardar Muhammad Sarfraz Dogar, JJ

ABDULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.217-J of 2016 and Capital Sentence Reference No. 10-N of 2016, decided on 5th March, 2019.

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

----S. 9(c)---Qanun-e-Shahadat, (10 of 1984), Art. 129(g)---Possessing narcotic---Appreciation of evidence---Benefit of doubt---Withholding material evidence---Effect---Prosecution case was that five toras of charas containing 90 packets, each packet weighing 1200/1200 grams, total weight 108 kilograms, were recovered from the vehicle of the accused---Record showed that neither the accused were taken into custody by the Investigating Officer at the spot nor the case property was handed over to him at the place of occurrence rather the same had already been brought to the Base Camp (Motorway Police) prior to the arrival of the Investigating Officer at the spot---No attempt was made in the present case to show that the case property was kept in safe custody after recovery till handing over to Investigating Officer at Base Camp which was at a distance of 20 kilometers from the place of diversion from where the accused were intercepted by Patrolling Officer---Said Patrolling Officer during the cross-examination had deposed that when they left the diversion for the camp, the car of the accused persons was driven by Assistant Patrolling Officer---Surprisingly neither the name of said Assistant Patrolling Officer was mentioned anywhere nor he was produced as a witness to prove recovery of narcotic from the accused and its safe custody and safe transmission from the place of diversion from where the accused were apprehended and arrested by Patrolling Officer to the Camp Office where the proceedings were conducted subsequently by Investigating Officer---Testimony of said Patrolling Officer was crucial and important in that regard---Presumption under Art. 129(g) of Qanun-e-Shahadat, 1984 could be that had the said witness been produced by the prosecution in the witness box, he would have not supported the prosecution version---Sole deposition of Senior Patrolling Officer required corroboration in that regard but the same lacked, therefore, his credibility without any corroboration was not safe to be believed---Statement of Senior Patrolling Officer before the Trial Court was replete with improvements/contradictions which could not be said to be insignificant---Another legal lacuna was directly related to the admissibility of receipt through which delivery of narcotic, the car and the custody of two persons etc. was made to Investigating Officer---Neither it found mention the time and place where it was made nor it disclosed the name of person from whom these articles were recovered---Even the said receipt did not bear the name of the officer who delivered the said articles, narcotic and persons, etc.---Stamp bearing on the receipt was of Admin Officer but name of the said officer did not appear in the stamp---Prosecution had not offered any explanation for failure to produce the original receipt---Attested photocopy of the receipt could not be relied upon for proving the delivery of narcotic, the car and the accused etc. for the simple reason that original of that had not been placed on record and no permission was taken by the prosecution to lead secondary evidence---Prosecution must have taken prior permission of the court to lead the secondary evidence---Prosecution had failed to make out any case to exhibit photo-stat copy of the receipt as conditions required for leading secondary evidence were missing, hence, said aspect had led to hold that photo-stat copy of receipt was not brought on record in accordance with law, hence, could not be considered in any manner---Complainant had not witnessed as to who was on the steering wheel of the car and driving at the time of occurrence---Record was silent as to how and from which scale the recovered contraband was weighed---Record transpired that after taking custody of the accused as well as possession of the narcotic, Investigating Officer did not take them to Police Station to register the FIR and instead deputed a Sipahi to take his written complaint, which he wrote out when the accused were taken into custody to Police Station which was at a distance of 100 kilometres from the place of recovery and the F.I.R. was registered on the basis of said written complaint---Sipahi was directed to go alone to the police station which was at a so long distance with the written complaint whilst Investigating Officer could himself easily have driven there in the car---Said fact as to how Sipahi came to Police Station remained in mystery---Non-production of said Sipahi who took the written complaint and the inexplicable conduct of the complainant in not proceeding to the police station himself to register the FIR were matters of concern and collectively of incredulity---Although 90 sealed parcels of samples were separated from the charas recovered from the accused-appellant and were transmitted in the office of Chemical Examiner---However, report submitted by the Chemical Examiner could not be considered to be conclusive proof regarding the status of the recovered substance and could not be relied upon for sustaining conviction of the accused---Burden always remained on prosecution to prove affirmatively right from the arrest of the accused, seizer of the recovered contraband deposited with moharrar on the same day and till it reached the office of Chemical Examiner---Said facts must be in line but the facts of the present case created doubt on the case of the prosecution and benefit of reasonable was to go to the accused---Appeal was allowed and accused were acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344; Minhaj Khan v. The State 2019 SCMR 326; Muhammad Zaman v. The State 2014 SCMR 749 and Muhammad Akram v. The State 2009 SCMR 230 rel.

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

----S. 9(c)---Possessing narcotic---Appreciation of evidence---Recovery of narcotic from the possession of accused---Reliance---Scope---Record transpired that the recovery proceedings had not been conducted at the place where the accused were taken into custody along with the car, from the dickey of which alleged contraband was recovered, rather the same were conducted at Camp Office which was at a distance of 20 kilometres---Such was not merely a minor lapse but there was very strong suspicion about the entire prosecution story---Even otherwise, complainant during the cross-examination had admitted that the recovery was not effected from the accused in his presence rather it was the Motorway Police who effected the recovery from the accused persons---Said circumstances taken together cast doubt about the happening and handing over the accused and case property to Investigating Officer---Recovery was of inconsequential, in circumstances.

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

----Art. 76---Secondary evidence---Scope---Secondary evidence in respect of document could only be tendered if original was shown to have been destroyed or lost---Projected destruction or loss of document was to be proved by leading some evidence or by bringing on record some supporting material.

(d) Control of Narcotic Substances (Government Analysts) Rules, 2001---

----Rr. 5 & 6---Control of Narcotic Substances Act (XXV of 1997), S. 9---Possession of narcotic---Non-compliance of R. 6 Control of Narcotic Substances (Government Analyst) Rules, 2001---Effect---In the present case, report of the Chemical Examiner had only one signature of the Government Analyst whereas the Rules stipulated signatures of two officers---Even the said report was completely silent regarding the necessary protocols of the test applied coupled with the fact that no description and specification of sealed parcels qua the recovery effected from the accused had been mentioned therein.

The State through Regional Director ANF v. Imam Bakhsh 2018 SCMR 2039 rel.

(e) Control of Narcotic Substances (Government Analysts) Rules, 2001---

----R. 6---Control of Narcotic Substances Act (XXV of 1997), S.36(1)---Narcotics---Government Analyst report, preparation of---Mandatory requirements, non-compliance of---Effect---In the present case, Chemical Examiner Report revealed that neither weight of the samples of contraband substance being 10 grams each was mentioned in the Chemical Examiner Report nor it revealed that they had weighed each sample---No evidence could be found qua the form of contraband that the charas was pukhta or gardah or it was in powder form---Recovery witness during the cross-examination had admitted that the number on toras (1 to 5) were already present on the toras---No evidence was available to connect the Chemical Examiner Report with the substance that was seized from the possession of the accused---Eventuality it was not possible to uphold and sustain Judgment of conviction and sentence against the accused could not be upheld, in circumstances---All such facts evaded the credibility of the deposit of the samples with the Chemical Examiner Office and rendered the case of the prosecution doubtful.

A.G. Tariq Chaudhary and Miss Riaz Begum for Appellant.

Zafar Iqbal Chohan, Special Prosecutor for ANF for the State.

2020 M L D 817

[Lahore]

Before Asjad Javaid Ghural and Farooq Haider, JJ

ABDUL HASEEB YOUSAF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.344-J of 2015, decided on 30th October, 2019.

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

----Ss. 11-N & 6(2)(p)---Fund raising for proscribed organization---Preaching ideas as per one's own interpretation---Appreciation of evidence---Benefit of doubt---Scope---Accused was charged for cellecting funds for proscribed organization---Police recovered receipts of a Trust and motorcycle under his use containing the names of proscribed organization on the front and rear number plate---Prosecution did not produce any notification that the Trust was a banned organization or subsidiary body of the proscribed organization, as such collection of funds, specially on the receipts of said Trust, in no manner constituted any offence---No investigation was conducted from the angle that in whose name the motorcycle was registered and as such the same could not be connected with the accused in any manner, whatsoever---No case could be registered under Anti-Terrorism Act, 1997 against any individual for mentioning prohibited/objectionable words---Prosecution had failed to bring on record any piece of evidence, which connected the accused with banned organization in any capacity---Appeal was allowed and the accused was acquitted of the charge.

Javed Iqbal for Appellant.

Muhammad Moeen Ali, Deputy Prosecutor General for the State.

2020 M L D 850

[Lahore]

Before Asjad Javaid Ghural and Farooq Haider, JJ

Hafiz IMRAN alias ABBAS alias HAMZA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 24 and Capital Sentence Reference No.1-T of 2015, decided on 22nd October, 2019.

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

----Ss. 365-A, 395 & 342---Anti-Terrorism Act, (XXVII of 1997), Ss.21(j) & 7----Kidnapping or abducting for extorting property, valuable securities, dacoity, wrongful confinement, abetting, terrorism---Appreciation of evidence---Benefit of doubt---Accused were charged for kidnapping a foreigner from his residential room, caused him injury on his head while inflicting blow with butt of pistol and took him with themselves; while leaving place of occurrence accused persons also snatched mobile phones from other two persons---Admittedly, occurrence took place at 03:00/03:15 a.m. and no source of light had been claimed by the prosecution---One prosecution witness during his statement though introduced source of light but it was found as dishonest improvement---Neither any source of light had been taken into possession nor shown in site plan prepared by Investigating Officer---Prosecution case was that CCTV cameras were installed at the place of occurrence but neither said cameras nor any CCTV footage/movie was produced before the court---Prosecution could not produce any valid reason for non-production of the same and also could not establish through any cogent material that said CCTV camera was not functional at that time---Prosecution case was that there was a Security Guard in the building where alleged occurrence took place but prosecution could not bring on record any material during investigation or trial of the case to prove that there was a Security Guard at the relevant time---Witness had further stated that he did not know whether site plan was drafted on his pointing out in his presence and even he could not tell about number of rooms in the house i.e. place of occurrence and also could not tell that either there was any wire on the boundary wall---Said witness also could not tell that after how much time of the occurrence police had arrived---Prosecution case was that two witnesses along with their other companions were got tied in office at ground floor with ropes/string of shalwar (azarband) and solution tape was stuck at their mouths---Assailants, thereafter, took one witness with them to upper storey of the house and then abducted the foreigner---Two witnesses joined identification parade, but one witness was not present during identification parade, on that score also, the identification parade was of no help to the case of prosecution---Actual role of appellant in abduction could not be unearthed during identification parade, which was fatal for the prosecution---Prosecution had failed to prove its---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Muhammad Saleem v. The State 2010 SCMR 374 and Haroon Shafique v. The State and others 2018 SCMR 2118 rel.

(b) Criminal trial---

----Eyewitness---Improvement in testimony---Scope---Fact brought on record through improvement in testimony for strengthening the case and filling the lacuna/gap, could not be read in evidence---Witness who introduced such improvement could not be believed.

Muhammad Arif v. The State 2019 SCMR 631; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Muhammad Mansha v. The State 2018 SCMR 772 and Muhammad Arif v. The State 2019 SCMR 631 rel.

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

----Ss. 365-A, 395 & 342---Anti-Terrorism Act, (XXVII of 1997), Ss. 21(j) & 7----Qanun-e-Shahadat (10 of 1984), Art. 22---Kidnapping or abducting for extorting property, valuable securities, dacoity, wrongful confinement, abetting, terrorism---Appreciation of evidence---Test identification parade---Scope---Record showed that no facial feature of any of the assailants was mentioned in written complaint and FIR, therefore, identification of the accused as one of the assailants during identification parade was inconsequential--- Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

State/Government of Sindh through Advocate-General, Sindh, Karachi v. Sobharo 1993 SCMR 585 and Sabir Ali alias Fauji v. The State 2011 SCMR 563 rel.

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

----Art. 22---Test identification parade---Scope---If no specific role of any assailant including the accused/appellant was mentioned in written complaint and FIR then deposition of any specific role of any assailant or appellant/accused by any witness during identification parade was of no evidentiary value.

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

----Ss. 365-A, 395 & 342---Anti-Terrorism Act, (XXVII of 1997), Ss. 21(j) & 7----Qanun-e-Shahadat (10 of 1984), Art. 22---Kidnapping or abducting for extorting property, valuable securities, dacoity, wrongful confinement, abetting, terrorism---Appreciation of evidence---Delay in conducting test identification parade---Effect---Record showed that appellant was arrested and was kept in police custody and sent to judicial lockup on the next day for the purpose of identification parade---Identification parade was held after seven days under the supervision of Judicial Magistrate---Question was as to where appellant was kept by the police and why he was not immediately sent to judicial lockup---Objection of the accused at the time of identification parade that his pictures were made and shown to the prosecution witnesses, was not without substance and there was every possibility regarding exposing of his identity to the prosecution witnesses---Said fact ipso facto would minimize the value of identification parade, thus was fatal for the case of prosecution---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

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

----Ss. 365-A, 395 & 342---Anti-Terrorism Act, (XXVII of 1997), Ss. 21(j) & 7----Kidnapping or abducting for extorting property, valuable securities, dacoity, wrongful confinement, abetting, terrorism---Appreciation of evidence---Recovery of weapon of offence on the pointation of accused---Reliance---Scope---Record showed that a pistol was recovered on the pointation of the accused---Prosecution's case was that no firearm weapon was used in the occurrence and only a butt blow of pistol was given to abductee, but admittedly recovered pistol was not blood stained---No report regarding working condition of the 'pistol' had been obtained and produced by the prosecution---Said recovery, therefore, was inconsequential and of no help to the case of prosecution---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

(g) Criminal trial---

----Benefit of doubt---Principle---Single dent in case of prosecution is sufficient for acquittal.

Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Mansha v. The State 2018 SCMR 772; Abdul Jabbar and another v. The State 2019 SCMR 129 and Mst. Asia Bibi v. The State and others PLD 2019 SC 64 rel.

Ms. Saima Asif Rana for Counsel at State expense.

Mueen Ali, Deputy Prosecutor General for the State.

2020 M L D 876

[Lahore]

Before Mujahid Mustaqeem Ahmed, J

MUHAMMAD AMEER---Petitioner

Versus

The STATE and another---Respondents

Criminal Revision No. 5741 of 2020, decided on 31st January, 2020.

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

----S. 514---Constitution of Pakistan, Arts. 4 & 25---Forfeiture of bonds---Arrest of surety---Petitioner was surety of accused who was aggrieved of fine and imprisonment imposed by Trial Court due to absence of accused before court---Validity---Trial Court had not followed procedure laid down in S. 514, Cr.P.C. and on its own whims/wishes, quite in casual manner without affording fair right to submit reply to show cause notice and address court, proceeded to pass order in question---Trial Court without first having recourse to provisions of S. 514(2), Cr.P.C. for attachment of moveable property of surety to recover penalty amount, straightaway passed an order for remitting him to civil prison for six months---Such action, as per intention of Legislature, was last step/resort to execute order which was passed in a hasty manner and without observing relevant provisions of law and without following procedure provided in S. 514, Cr.P.C.---Trial Court acted in self-styled manner unwarranted under law and had not exercised powers in accordance with law---Procedure contemplated under S. 514, Cr.P.C. was mandatory in nature and any deviation from such procedure made such orders nullity---Order in question violated express and mandatory requirements of S. 514, Cr.P.C.---When law required a thing to be done in a particular manner, it was to be done in that manner alone or not at all as nobody should try to be wiser than law---Trial Court curtailed liberty of petitioner without due process of law and order in question was violative of Arts. 4 & 25 of the Constitution---High Court directed jail authorities to release petitioner forthwith as order of his custody was misuse of authority and same was set aside---High Court remanded matter to the Trial Court for decision afresh---Revision petition was allowed accordingly.

Muhammad Yousaf v. The State 2003 PCr.LJ 347 rel.

Mir Ehsan Mehmood v. The State 2008 MLD 919; Nisar Ahmed v. The State 2014 YLR 2635; A.L. Zahir ul Haq Khan v. The State PLD 1962 Dacca 447; Shaukat Ali and another v. The State 1984 PCr.LJ 718; Tassaduq Hussain Gillani v. The State 2012 PCr.LJ 1108; Sanwan and another v. The State PLD 1965 (W.P.) Kar. 516; Adho Khan v. The State 2001 PCr.LJ 35; Shaukat Ali and another v. The State 1980 PCr.LJ 718; Shabbir Hussain v. The State 2018 MLD 173 and Ghulam Raza v. The State PLD 2013 Lah. 473 ref.

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

----S. 435---Revisional powers of High Court---Scope---Provisions of S.435, Cr.P.C. confer ample powers to High Court to examine any proceedings of any subordinate criminal court, situated within its territorial jurisdiction for purpose of satisfying itself as to correctness, legality or propriety of any findings, sentence or order recorded or passed.

Muhammad Ijaz Khan for Petitioner.

2020 M L D 900

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

JAVED AKHTAR KHAN---Petitioner

Versus

DISTRICT CO-ORDINATION OFFICER/DISTRICT COLLECTOR, SHEIKHUPURA---Respondent

Writ Petitions Nos. 25768, 29643 and 32654 of 2014, decided on 23rd April, 2019.

Punjab Land Revenue Act (XVII of 1967)---

----S. 3---Displaced Persons (Land Settlement) Rules, 1959, R. 7-A---Displaced Persons (Land Settlement) Act (XLVII of 1958), S. 16---Displaced person---Allotment of evacuee property by the Settlement Authorities---Petitioner being allottee of evacuee property filed suit for possession which was decreed---District Collector thereafter cancelled the said allotment on the grounds that allottee had failed to present copy of Register RL-II and that no mutation had been attested---Validity---Title/allotment in favour of petitioner could be disputed before judicial forum where decree had been passed---Once matter had been finalized on judicial side then the same could not be reopened on administrative side---Disputed property was not assessed to land revenue and was exempted from the operation of provisions of Punjab Land Revenue Act, 1967---District Collector was not competent to take cognizance of the property falling in the urban limits or was constructed one---Title in evacuee property stood transferred and vested in its transferees on making a record of transfer by the competent authority on settlement side which itself would be complete regardless of the fact whether transferee had obtained copy of such order or not---Petitioner was in possession of the suit property and allotment order had been implemented in the revenue record---Settlement Department even after repeal of relevant laws was not competent to reopen the matter which was not pending at the time of repeal of Settlement laws---Attestation of mutation in favour of displaced person was not necessary rather the confirmation of his land could directly be given effect in the record of rights---Land on which a displaced person was permanently settled would vest in him---District Collector was not competent to interfere with or render any direction in the matter of allotment made in settlement of claims---Impugned order had been passed without lawful authority---Non-availing of alternate remedy would not debar High Court to annul such an order in constitutional jurisdiction---Impugned order was quashed, in circumstances---Constitutional petition was allowed accordingly.

Hazratullah and others v. Rahim Gul and others PLD 2014 SC 380; Chuttan and others v. Sufaid Khan and others 1987 SCMR 503; Commissioner of Income-tax, East Pakistan v. Fazlur Rahman PLD 1964 SC 410 and Member Board of Revenue/Chief Settlement Commissioner, Lahore and 2 others v. Mst. Sajida Parveen and others 2010 SCMR 1942 rel.

Muhammad Shahzad Shaukat and Atif Mohtashim Khan for Petitioner (in Writ Petition No.25768 of 2014).

Syed Muhammad Kaleem Ahmed Khursheed for Petitioners (in W.P.No.29643 of 2014).

Ch. Riasat Ali and Amer Farooq for Petitioner (in W.P.No.32654 of 2014).

Shadab Hassan Jarfi, Addl. A.G. for Respondent.

2020 M L D 934

[Lahore]

Before Aalia Neelum and Ch. Abdul Aziz, JJ

Syed MOON ALI SHAH---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 252505 of 2018, heard on 24th June, 2019.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Prosecution case was that from the vehicle driven by the accused on checking 7-1/2packets of opium were recovered from the secret cavities under the driving seat and eight packets of opium were recovered from the secret cavities of left side of the seat of the car---Each packet was found 1200-grams opium and on weight of ½ packet, it was found 500-grams---Out of the recovered substance 60-grams opium and from 500-grams, 25-grams opium was separated for chemical analysis---Record showed that recovery of 7-1/2 packets of opium from secret cavities under the driving seat and 8 packets of opium from the secret cavities under the left side of the seat of the car, total weighing 18500 grams, driven by the accused had not been proved by the prosecution---Complainant had admitted that in the recovery memo, the key of the alleged car was not taken into possession by him---Admittedly, complainant had straightway mentioned the name of the accused in the complaint without any interrogation---Parcel of the recovered substance had neither been signed by the complainant nor the witnesses---Place of recovery was not pointed out in the site plan---Investigating Officer had not inspected the secret cavities of the vehicle from which alleged contraband substance was recovered---Investigating Officer along with counsel for the parties examined the vehicle during the hearing of the appeal, with the permission of the court---Investigating Officer, thereafter, had stated that secret cavities were present under the driving seat but now no such secret cavity was available in the car underneath the seats---Even court had sought the assistance of denter who pulled out the seat and examined minutely and no sign of any cavity was found underneath the seats---Non-presence of cavities in the vehicle created doubt on the testimony of prosecution witnesses---Prosecution had failed to establish that the alleged contraband substance was recovered from the secret cavities of the alleged vehicle driven by the accused-appellant---Prosecution had failed to prove the charge against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted, in circumstances.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Safe custody of recovered substance---Prosecution case was that 18500-grams opium was recovered from the secret cavities of the vehicle driven by the accused---Prosecution had not established safe custody of recovered substance---Many contradictions were found as to preparation of parcels of samples and the remaining case property by the complainant---Complainant did not state exact number of parcels prepared by him---Material contradictions in between the evidence of the prosecution witnesses were really omissions as regards details of the number of parcels prepared by the complainant and handing over to the Moharrar---Evidence of eye-witnesses could not be relied upon because of contradictions and inconsistencies in their evidence---Prosecution was supposed to establish by cogent evidence that the alleged opium weighing 18500 grams seized from the vehicle was kept in safe custody---No explanation for said failure was furnished---Circumstances established that prosecution had not been able to prove safe custody of the recovered substance through material and cogent evidence.

Akhtar Hussain Bhatti for Appellant.

Muhammad Waqas Anwar, Deputy Prosecutor General for the State.

2020 M L D 1008

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

Dr. NOOR MUHAMMAD SALEEMI SAGGU---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE and another---Respondents

Writ Petition No. 14480 of 2019, decided on 6th December, 2019.

Muslim Family Laws Ordinance (VIII of 1961)---

----S. 10---Dower---Deferred dower---Scope---Wife sought recovery of deferred dower during subsistence of marriage---Validity---Prompt dower was payable on demand during subsistence of the marriage tie whereas the deferred dower was payable on the time stipulated between the parties, but where no time was stipulated, it was payable on dissolution of marriage either by death or divorce---Deferred dower did not become "prompt" merely because the wife had demanded it---High Court observed that the wife was not entitled to recover her dower at this stage and her suit was premature---Constitutional petition was allowed, in circumstances.

Saadiq Usman and another v. Muhammad Usman Iqbal Jadoon and another 2009 SCMR 1458 fol.

Muhammad Azam v. Additional District Judge and others 2006 YLR 33; Muhammad Shabbir v. Rehana Kausar and others PLD 2013 Lah. 102; Joodat Kamran Alvi v. Additional District Judge and others 2012 MLD 1466 and Muhammad Sajjad v. Additional District and Sessions Judge and 2 others PLD 2015 Lah. 405 distinguished.

Shah Daraz Khan v. Mst. Naila and 3 others 2015 MLD 73 and Mst. Mehnaz Mai v. Ghulam Abbas and 2 others 2018 CLC Note 104 ref.

Malik Ashiq Muhammad Jamal for Petitioner.

Muhammad Saqib Naeem Chaudhry for Respondent.

2020 M L D 1032

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

MUHAMMAD YOUNAS---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 7236-B of 2019, decided on 20th December, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 148, 149---Qatl-i-amd, rioting, unlawful assembly---Bail, grant of---Further enquiry---Contradiction in medical evidence---Total number of fires attributed to the seven accused persons including the present accused were eighteen, whereas some of the accused persons were also alleged to have made numerous fires from their weapons hitting at various parts of the body of the deceased---Medical Officer, who conducted the post-mortem examination of the dead body of the deceased, found only nine entry wounds on his person---Glaring contradiction between the statements of the witnesses and the medical evidence was available on record---Similar allegation of firing with a pistol hitting the deceased on his right upper arm and left side of abdomen was levelled against the co-accused of the present accused, meaning that said injuries were attributed to two different accused---Four co-accused persons who played identical part had already been admitted to bail by High Court---Factum of abscondence might not be a deciding factor, while deciding the bail plea of accused---Attending circumstances of the case and a cautious study thereof would be relevant for decision of a bail application---Case of accused was one of further enquiry covered by subsection (2) of S. 497, Cr.P.C.---Accused was admitted to bail, in circumstances.

Khizer Ali Khan Wadani for Petitioners.

2020 M L D 1046

[Lahore]

Before Abdul Sami Khan and Shehram Sarwar Ch., JJ

ABDUL GHAFOOR alias MUHAMMAD GHAFOOR and others---Appellants

Versus

The STATE and another---Respondent

Criminal Appeals Nos. 1196, 1325, 1214 of 2010, Criminal Revision No.354 of 2012 and Murder Reference No.354 of 2010, heard on 12th November, 2015.

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

----Ss. 302(b), 392 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Presence of witnesses at the place of occurrence doubtful---Scope---Accused were charged for murdering the deceased after committing robbery---Admittedly none was named as accused in the FIR---Accused-appellants were nominated through the supplementary statement of the complainant recorded about forty five days after the incident---No source of information as to how the complainant came to know about the names of the accused-appellants was mentioned in the supplementary statement---Explanation offered by the witnesses of ocular account for source of information about the involvement of the accused persons in the present case during their cross examination did not appeal to a prudent mind because if the complainant's side was familiar with the faces of the accused persons, who were residing in village adjacent to the village of the complainant party, then why they did not straightway nominate them in the FIR or soon after the registration of the FIR---Complainant as well as other witness of ocular account had not disclosed the names of the persons who told them about the names of the accused persons---Allegedly, complainant party was stopped by the accused persons, who snatched cash and mobile phones from the complainant as well as deceased---Accused persons did not snatch anything from witness during the incident---Moreover, both the said witnesses did not receive even a scratch during the incident---Presence of both the witnesses at the place of occurrence at the relevant time was doubtful, in circumstances---Circumstances established that the prosecution had failed to connect the accused persons with the commission of alleged crime---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 392 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Contradictions in the statement of witnesses---Effect---Accused persons were charged for murdering the deceased after committing robbery---Record showed that there were material contradictions in the statement of witnesses of ocular account---Complainant in the FIR as well as before the Trial Court stated that all the assailants were armed with pistols, whereas other witness before the Trial Court stated in his examination-in-chief that at the time of incident, accused was armed with dagger---During course of investigation, a churri was recovered at the instance of accused---Case of the prosecution as per FIR was that on the demand for the return of documents, the accused persons made firing upon deceased---Witness had stated in his examination-in-chief that the accused persons directed them to take off their clothes whereupon deceased stood up and refused to do so---Complainant had stated in his examination-in-chief that the accused persons asked deceased to remove his clothes, who refused over which the accused persons started firing upon him---Complainant had stated in his examination-in-chief that co-accused grappled with him due to which his pistol fell on the ground but it was not stated so in the FIR as well as by witness while appearing before the Trial Court---Testimony of both the witnesses of ocular account did not inspire confidence---Appeal against conviction was allowed, in circumstances.

(c) Criminal trial---

----Medical evidence---Scope---Medical evidence confirms the ocular account with regard to the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it will not tell the name of assailants.

Ata Muhammad and another v. The State 1995 SCMR 599 rel.

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

----Ss. 302(b), 392 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapons of offence at the instance of accused---Reliance---Scope---Accused were charged for murdering the deceased after committing robbery---Alleged recovery of the churri at the instance of accused was inconsequential because in the FIR as well as before the Trial Court, it was not the case of complainant that at the time of incident, accused was armed with churri---Said churri was not used during the incident and the same was allegedly recovered at the instance of accused about seventy four days after the incident---Alleged recovery of pistol at the instance of co-accused was also not much helpful for the prosecution because the same was not sent to the office of Forensic Science Laboratory for comparison with the crime empties allegedly recovered from the spot---Said pistol was allegedly recovered at the instance of co-accused about sixty three days after the incident---Complainant had stated in his examination-in-chief that during the incident co-accused grappled with him due to which the pistol carried by the said co-accused fell on the ground---If the pistol allegedly carried by co-accused had fallen at the place of occurrence at the time of incident then how it was possible that pistol was recovered from co-accused after more than two months of the incident and was used during the incident---Circumstances established that the prosecution had failed to connect the accused persons with the commission of alleged crime---Appeal against conviction was allowed, in circumstances.

Ch. Muhammad Suleman for Appellant (in Criminal Appeal No.1196 of 2010).

Zafar Iqbal Chohan for Appellant (in Criminal Appeal No.1325 of 2010).

Muhammad Saqib Jillani, Defence Counsel appointed at State expense for Appellant (in Criminal Appeal No.1214 of 2010).

Nisar Ahmad Virk, Deputy District Public Prosecutor for the State.

Nemo for (Complainat).

Nemo for Petitioner (in Criminal Revision No.1015 of 2012).

2020 M L D 1097

[Lahore]

Before Sayyed Mazahar Ali Akbar Naqvi and Ch. Abdul Aziz, JJ

USMAN alias SHANAAN---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No. 879, Criminal Revision No.649 and Murder Reference No. 244 of 2012, decided on 30th January, 2017.1

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Prompt FIR---Natural witnesses---Corroboration of medical and ocular evidence---Absconsion of accused---Motive not proved---Scope---Accused and others were alleged to have indiscriminately fired at the deceased when he along with his relatives was present in the shop of a barber---Case was based on a promptly lodged FIR---Eye-witnesses had reasonably explained their presence at the crime scene by deposing that they had accompanied the deceased to the shop of barber and it was very common in a rural background that relatives and friends accompanied each other to the shops of the barbers---Medical evidence had fully supported the ocular account of the eye-witnesses so far as it related to the injuries attributed to the accused---Statements of witnesses had got due corroboration from the absconsion of accused---High Court observed certain extenuating circumstances such as failure of prosecution to prove motive to the extent of accused and the inability of witnesses to attribute or pinpoint specific injuries to the accused, warranting the award of lesser sentence---Conviction of the accused was maintained, however, his death sentence against conviction was converted into that of imprisonment of life---Appeal against conviction was dismissed.

Soba Khan and another v. The State and another 2017 PCr.LJ 211 ref.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Recovery of weapon---Non-recovery of crime empties---Scope---Accused and others were alleged to have indiscriminately fired at the deceased when he along with his relatives was present in the shop of a barber---Recovery of rifle was insignificant when seen in the context of non-recovery of crime empties from the place of occurrence---Report of Forensic Laboratory was available on the record but the same was not exhibited---Report was only to the effect that the weapon was in working order and nothing more---Sentence of the accused was reduced, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Motive, not proved---Scope---Accused and others were alleged to have indiscriminately fired at the deceased when he alongwith his relatives was present in the shop of a barber---Motive was described to be the murder committed by the deceased, during the trial of which he was initially convicted and later on acquitted on the basis of compromise---Complainant had appeared in the witness box in support of motive but he had not given details of the occurrence---Complainant, during cross-examination, had attributed the factum of enmity to the proclaimed offender/co-accused---Nothing was brought on record, which suggested, even remotely, that the accused had any personal enmity with the deceased---Prosecution had failed to prove motive to the extent of the accused---Sentence of the accused was reduced, in circumstances.

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

----Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Qatl-i-amd, common intention---Withholding best evidence---Non-production of independent witness---Scope---Accused and others were alleged to have indiscriminately fired at the deceased when he along with his relatives was present in the shop of a barber---Defence of accused was that the non-production of barber was fatal to the prosecution case---Such an argument of accused ran contrary to the common social behaviour---Normally, people avoid to become part of the blood enmities of other, moreso, when a person hailed from lower placed segment of the community---High Court held that it was but quite natural for the barber to stay away from such like incidents.

Zakir Hussain v. The State 2009 SCMR 222 rel.

(e) Criminal trial---

----Motive---Scope---Motive is always an important aspect in a criminal trial and can easily be termed as backbone of the prosecution case.

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

----S. 302--- Qatl-i-amd--- Failure to prove motive--- Mitigating circumstance---Scope---Failure to establish motive on part of the prosecution may react upon sentence of death.

Qaddan and others v. The State 2017 SCMR 148 ref.

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

----S. 302---Qatl-i-amd---Sentence---Discretion---Scope---Person found guilty under S.302(b), P.P.C. can either be punished with death or with imprisonment for life and it is a misconception to say that death is the normal penalty provided for murder---Legislature has not provided any guideline as to when a person is to be punished with death or in what circumstances he is to be sentenced to imprisonment for life, therefore, it can safely be inferred that quantum of sentence depends upon the discretion of court.

Muhammad Riaz and another v. The State and another 2007 SCMR 1413 and Muhammad Sharif v. The State PLD 2009 SC 709 ref.

Ghulam Mohy-ud-Din alias Haji Babu and others v. The State 2014 SCMR 1034 rel.

(h) Administration of justice---

----Discretion, exercise of---Scope---Discretion is to be exercised in accordance with the facts and circumstances of the case.

Saqib Jillani (Defence Counsel appointed as State expense) for Appellant.

Mian Pervaiz Hussain for the Complainant.

Mian Muhammad Awais Mazhar, Deputy Prosecutor General for the State.

2020 M L D 1122

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh and Sadiq Mahmud Khurram, JJ

KHYBER ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Appeal No. 664 of 2019, decided on 5th December, 2019.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Safe custody---Scope---Accused was alleged to have been found in possession of 5.120 kilograms of charas---Complainant deposed that he had handed over the case property including samples and custody of accused to the investigating officer---Investigating officer acknowledged such fact but he did not say as to what he did with them---Moharrar of the police station deposed that the case property was deposited in the malkhana with some delay---Case property, at some point of time, was transferred to another malkhana but the record was silent as to who took the same there---Report of Forensic Laboratory showed that sample containing approximately 5070 grams of charas was submitted in the laboratory by an Assistant Sub-Inspector of Police but no evidence was available on record showing as to where the sample came from and how it reached to his hand---Weight of residue, after separation of samples, did not match with the parcel that was delivered in the Forensic Laboratory---Prosecution had failed to establish safe custody of the case property as well as safe transmission of the sample parcels to the Forensic Laboratory---Appeal was accepted, in circumstances.

The State through Regional Director ANF v. Inam Bakhsh and others 2018 SCMR 2039 and Khair-ul-Bashar v. The State 2019 SCMR 930 ref.

Mehroz Aziz Khan Niazi for Appellant.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

2020 M L D 1132

[Lahore]

Before Muhammad Tariq Abbasi and Sardar Ahmad Naeem, JJ

MUHAMMAD ASIF---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No.112-J and Murder Reference No.165 of 2011, decided on 29th September, 2015.

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

----Ss. 302(b) & 460---Qatl-i-amd, person jointly concerned in lurking house-trespass or house-breaking by night---Appreciation of evidence---Benefit of doubt---Night time occurrence---No source of light---Scope--- Accused was charged for committing murder of the deceased---In the FIR, neither any person as accused was nominated nor features of any accused were given or any source of light at the spot was described---One month after the alleged occurrence, the complainant mentioned in his subsequent application that he identified one of the accused, who entered in his house and by firing, done his brother to death and that the witnesses told him the particulars of the accused---No feature of the accused was given in the FIR and in the subsequent application, it was not mentioned that on the basis of which feature, the accused was identified---Grounds taken in the said application were nothing but an afterthought concoction---No source of light at the spot was described in the FIR, and the complainant, during cross-examination, had admitted that no source of light on the roof of the house was available, then his stance that he had identified the accused to be the person, who, on the roof of the house, had fired and caused injury to his brother, which resulted into his death, was surely a false statement---Admittedly, no test identification parade was held and if for a moment, it was presumed that the complainant had identified the appellant, even then he, for the purpose of test identification parade, should have been brought before witnesses, but without any reason, cause or justification, the said exercise was not done---Circumstances established that the prosecution had failed to bring home the appellant beyond shadow of all reasonable doubts---Appeal against conviction allowed, in circumstances.

Tariq Pervaiz v. The State 1995 SCMR 1345 and Ayub Masih v. The State PLD 2002 SC 1048 rel.

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

----Ss. 302(b) & 460---Qatl-i-amd, person jointly concerned in lurking house-trespass or house-breaking by night---Appreciation of evidence---Benefit of doubt---Contradiction in the statement of witnesses---Effect---Accused was charged for committing murder of the deceased---Complainant, in his statement had contended that he had seen the appellant at a Adda, whereas the version of witness was that at that time, he along with the complainant was available in the commission shop of a person, who never came forward to fortify the above said contention---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 460---Qatl-i-amd, person jointly concerned in lurking house-trespass or house-breaking by night---Appreciation of evidence---Benefit of doubt---Crime empty recovered from the spot---Reliance---Scope---Accused charged for committing murder of the deceased---Nothing incriminating could be recovered from accused during his physical remand---Empty of .30 bore pistol, collected from the spot was not sent to any Laboratory and as such its benefit could not be given to the prosecution.

Aiyan Tariq Bhutta and Saqib Jillani for Appellant.

Mehmood Ahmad Chadhar for the Complainant.

Malik Muhammad Jaffer, Deputy Prosecutor General for the State.

2020 M L D 1166

[Lahore]

Before Rasaal Hasan Syed, J

GHULAM HUSSAIN---Petitioner

Versus

MUHAMMAD ALI and another---Respondents

Writ Petition No. 224440 of 2018, decided on 26th November, 2019.

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

----O. IX, R. 13 & O. XVI, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---Ex-parte decree, setting aside of---Application for permission to file list of witnesses---Good cause---Scope---Contention of petitioner was that he met an accident which resulted in fracture of his leg due to which he could not contact his counsel---Application for permission to file list of witnesses was accepted by the Trial Court but Appellate Court dismissed the same---Validity---Respondent had not pleaded that no accident had taken place or leg was not fractured---Had a specific defence been taken to question the plea of accident then petitioner could have requested the Court to frame an issue and allow him to lead evidence---Provisions of O.XVI, Rr. 1 & 2, C.P.C. were mandatory in nature---List of witnesses should have been filed within seven days from framing of issues---Court had jurisdiction to permit a party to file a list of witnesses after the expiry of period fixed in O.XVI, R.1, C.P.C. if satisfactory explanation had been shown and Court for sufficient reason deemed it necessary to grant the permission---Party who had not filed list of witnesses within time should show a 'good cause' for the said omission or inaction---Court while granting permission to file list of witnesses after expiry of period had to record reasons for granting the permission---Petitioner had given 'sufficient good cause' for the grant of permission to file list of witnesses after expiry of period in the present case---Sufficient material was available on record to justify the permission for filing of the list of witnesses, in circumstances---Impugned order passed by the Appellate Court suffered from legal and jurisdictional infirmity which was set aside and that of Trial Court was restored---Constitutional petition was allowed, in circumstances.

Iqbal Ahmad Sabri v. Fayyaz Ahmad and others 2007 CLC 1089; Inam Naqshbandi v. Haji Sheikh Ejaz Ahmad PLD 1995 SC 314; Muhammad Anwar and others v. Mst Ilyat Begum and others PLD 2013 SC 255; The Australasia Bank Ltd. v. Messers Mangora Textile Industries Ltd. and others 1981 SCMR 150 and Dr. Professor M.A. Cheema Surgeon, PIC, Lahore v. Tariq Zia and others 2016 SCMR 119 rel.

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

----O.VIII, R.4---Evasive denial to be considered as admission of the fact alleged.

Rana Dildar Amanat for Petitioner.

Ghulam Rasool Chaudhary for Respondent No.1.

2020 M L D 1193

[Lahore (Bahawalpur Bench)]

Before Sardar Muhammad Sarfraz Dogar and Tariq Saleem Sheikh, JJ

Hafiz SAEED GHANI---Petitioner

Versus

The STATE and another---Respondents

Criminal Appeals Nos. 468-ATA and 642-ATA of 2017, decided on 15th January, 2020.

Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Anti-Terrorism Act (XXVII of 1997), S. 7---Keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, act of terrorism--- Appreciation of evidence---Failure to seal case property---Contradictory statements---Chain of custody---Scope---Accused was alleged to have been found in possession of an explosive device---Explosive device, after it was defused, was put back into a sack, however, nothing was available on record to show that it was sealed---Nothing was available on record to show that the investigating officer had took the device to the Civil Defence Office for drawing samples of the explosive substances and that samples were sealed---Investigating Officer and Moharrar had contradicted each other as both had claimed that they had given the samples to the sample-bearer for transmission to Forensic Laboratory---Chain of custody was broken, therefore, forensic report had lost its credibility---Conviction of accused could not be sustained---Appeal was allowed.

Zafar Iqbal Awan for Appellant.

Asghar Ali Gill, Deputy Prosecutor General for the State.

2020 M L D 1211

[Lahore (Multan Bench)]

Before Muhammad Sajid Mehmood Sethi, J

GAMAN and others---Petitioners/Defendants

Versus

MUREED HUSSAIN and others---Respondents/Plaintiffs

Civil Revision No. 929-D of 2013, decided on 12th September, 2019.

(a) Inheritance---

----Laches, doctrine of---Applicability---Contention of plaintiffs was that their predecessor-in-interest had been deprived from inheritance ---Suit was decreed concurrently---Validity---Predecessor-in-interest of plaintiffs remained alive for more than twenty five years but she did not initiate any legal proceedings to seek her inherited estate---Law aids the vigilant and not the indolent---Doctrine of laches was applicable in the present case---Plaintiffs had lost enforcement of their right due to lapse of ninety three years and a number of mutations had been attested ever since---Limitation could be ignored when matter was with regard to inheritance---Party should have approached the Court and take recourse to legal remedies with due diligence---When suit had been filed by legal heirs of the right-holder after his/her death then law of limitation would apply---Impugned judgments and decrees passed by the Courts below were set aside and suit was dismissed---Revision was allowed, in circumstances.

Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446; Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299; Noor Din and another v. Additional District Judge, Lahore and others 2014 SCMR 513; Ghulam Ali and 2 others v. Mst.Ghulam Sarwar Naqvi PLD 1990 SC 1; Arshad Khan v. Mst. Resham Jan and others 2005 SCMR 1859; Mahmood Shah v. Syed Khalid Hussain Shah and others 2015 SCMR 869; Mst. Shehla Naz through Special Attorney v. Jawaid and 2 others 2010 CLC 1086 and Bashir Ahmad Khan and others v. Ghulam Sadar-ud-Din Khan and others 2012 CLC 699 ref.

Aftab Iqbal Khan Khichi and another v. Messrs United Distributers Pakistan Ltd. Karachi 1999 SCMR 1326; Nazakat Ali v. WAPDA through Manager and others 2004 SCMR 145; S.M. Afzal ul Rehman v. Federation of Pakistan and others 2005 SCMR 1322; Lahore Development Authority v. Mst. Sharifan Bibi and another PLD 2010 SC 705; Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762; Luqman and others v. Gul Muhammad 1984 SCMR 63; Mst. Phaphan through L.Rs. v. Muhammad Bakhsh and others 2005 SCMR 1278; Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299; Shero v. Muhammad Ramzan and 2 others 2006 YLR 2632; Nasrullah Khan and 4 others v. Nazir Begum and others 2012 YLR 2613; Shah Jahan v. Mst. Sadu Bibi 2016; YLR Note 6; Bagh Ali v. Ahmad Yar and others 2016 CLC Note 76; Atta Muhammad through L.Rs. and others v. Muhammad Khan and others 2018 MLD 1524 and Kausar Ali and another v. Javed Anjum and 6 others 2018 CLC 1930 rel.

(b) Administration of justice---

----Law aids the vigilant and not the indolent.

Tahir Mehmood and Kashif Nadeem Malik for Petitioners.

Ghulam Jafar Faheem and Mahr Bashir Ahmad Arain (vice Muhammad Yaar Khan Jatoi, Advocate) for Respondents.

2020 M L D 1248

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh and Anwaarul Haq Pannun, JJ

SHAHID HUSSAIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 666 of 2016-ATA, decided on 11th September, 2019.

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

----Ss. 9, 8, 11-F, 11-W &19-A---Criminal Procedure Code (V of 1898), S. 103---Prohibition of acts likely to stir up sectarian hatred, membership, support and meetings relating to a proscribed organization---Mode of making searches and arrest---Search to be made in presence of witnesses---Appreciation of evidence---Police witnesses---Scope---Complainant, an Inspector of police, complained that people of different sects came to him and complained about the spite being spread by the accused through facebook---Investigating officer deposed that the accused during investigation had disclosed the password of his facebook account and the account was checked by an Incharge of the IT department who had found the spiteful conversations---Witnesses had remained consistent on all material points---Accused had cross-examined them at length but had failed to impeach their credibility---Police witnesses were as good as any other witness unless it was proved through reliable evidence that they had a reason to falsely implicate the accused---No such material was brought on record in the case---Section 19-A, Anti-Terrorism Act, 1997, excluded the application of S.103, Cr.P.C.---Investigating Officer had sent the USB (Universal Serial Bus) flash drive and the CPU (Central Processing Unit) to the Forensic Laboratory---Report of Forensic Laboratory had reinforced the prosecution case---Prosecution had proved the charge against the accused beyond any shadow of doubt---High Court, while dismissing appeal, reduced the sentence handed down by the Trial Court as the accused was a first offender.

Naseer Ahmad v. The State 2004 SCMR 1361; Aala Muhammad and another v. The State 2008 SCMR 649 and Muhammad Khan v. The State 2008 SCMR 1616 ref.

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

----S. 19-A---Criminal Procedure Code (V of 1898), S. 103---Mode of making searches and arrest---Search to made in presence of witnesses---Scope---Section 19-A, Anti-Terrorism Act, 1997 excludes the application of S.103, Cr.P.C.

(c) Criminal trial---

----Witness---Police witness---Scope---Police witnesses are as good as any other witness unless it is proved through reliable evidence that they have a reason to falsely implicate the accused.

Naseer Ahmad v. The State 2004 SCMR 1361; Aala Muhammad and another v. The State 2008 SCMR 649 and Muhammad Khan v. The State 2008 SCMR 1616 ref.

Muhammad Basir Khan Sikhani for Appellant.

Shahid Aleem, Additional Prosecutor General for the State.

2020 M L D 1279

[Lahore]

Before Muhammad Ameer Bhatti, J

Mst. SHAHEENA BIBI---Petitioner

Versus

SHAUKAT ALI and others---Respondents

Civil Revision No. 4894 of 2020, decided on 29th January, 2020.

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

----Ss. 42 & 54---Suit for declaration and permanent injunction---Benami transaction---Burden of proof---Contention of plaintiff was that suit property was purchased by her father and same had been transferred in favour of defendant as a Benamidar out of love and affection and she was entitled for half share from the said property---Suit was dismissed concurrently---Validity---Suit property was in the name of defendant from its inception---Vendee had neither claimed his ownership with regard to suit property nor had considered the same in the name of defendant as Benamidar in his lifetime---Plaintiff had no locus standi to challenge impugned transaction as she had not inherited any sort of ownership from the legacy of her father---Vendee-father of plaintiff had not instituted any suit during his life time with regard to impugned transaction---Cogent and unimpeachable evidence was required to determine the transaction as Benami in nature which was missing in the present case---No mis-reading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the Courts below---Impugned judgments were in consonance with law---Revision was dismissed, in circumstances.

Abdul Majeed and others v. Amir Muhammad and others 2005 SCMR 577 and Zafar alias Mumtaz and another v. Mst. Sajjad Begum, Widow and others PLJ 2015 SC (AJ&K) 14 rel.

(b) Benami transaction---

----Ingredients---Ingredients of Benami transaction were motive, consideration, possession of property and possession of original documents.

2020 M L D 1290

[Lahore (Multan Bench)]

Before Syed Shahbaz Ali Rizvi and Asjad Javaid Ghural, JJ

MUHAMMAD SAJID---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 1172 of 2017, decided on 10th February, 2020.

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

----Ss. 9(c) & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Report of Government Analyst---Failure to mention full protocols in test report---Effect---1325 grams Charas was recovered from the accused when, on spy information, a raid was conducted upon him by the police---Record showed that Government Analyst while preparing the report had not complied with the mandatory provisions of R. 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001---Requirements of said Rule were mandatory and if the same had not been complied with, the report of the Government Analysts would lose its reliability and evidentiary value---Non compliance of R. 6 and absence of any of the enumerated mandatory elements/requirements frustrated the purpose and object of the Control of Narcotic Substances Act, 1997---Report prepared by the Government Analyst, did not carry separate result of each test applied except a concluding result---Accused, in case of narcotics, carrying a stringent sentence could not be convicted and sentenced only on the basis of oral assertions unless it was established with certitude that the material allegedly recovered from his possession was a narcotic---Prosecution in the present case had failed to do so---Appeal against conviction was allowed and accused was acquitted from the charge by extending benefit of doubt to him, in circumstances.

Khair ul Bashar v. The State 2019 SCMR 930 ref.

(b) Control of Narcotic Substances (Government Analysts) Rules, 2001---

----R. 6---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 36--- Possession of narcotics---Report of Government Analyst---Full protocols---Term "Protocol" means an explicit, detailed plan of an experiment, procedure or test or a precise step-by-step description of a test, including the listing of all necessary reagents and all criteria and procedures for the evaluation of the test data---"Full protocols" include a description of each and every step employed by the Government Analyst through the course of conducting test---High Court observed that report under R. 6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 must specify every test applied for the determination of the seized substances with full protocols adopted to conduct such tests.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Muhammad Boota v. The State and another 2020 SCMR 196 and Qaisar Javed Khan v. The State and another PLD 2020 SC 57 ref.

(c) Criminal trial---

----Benefit of doubt---Principle---Single circumstance creating reasonable doubt regarding the prosecution case, is sufficient to give benefit of the same to the accused.

Prince Rehan Iftikhar Sheikh for Appellant.

Ch. Muhammad Akbar, Additional Prosecutor General for the State.

2020 M L D 1312

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Rana MUHAMMAD ASLAM KHAN---Petitioner

Versus

SHAH NAWAZ and others---Respondents

Civil Revision No. 2383 of 2009, decided on 14th March, 2019.

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

----Ss. 12 & 39---Qanun-e-Shahadat (10 of 1984), Arts. 17(2), 79 & 80---Registration Act (XVI of 1908), S. 17---Transfer of Property Act (IV of 1882), S. 54---Suit for specific performance of contract and cancellation of instrument---Agreement to sell---Proof of---Procedure---Scribe of a document---Report of Handwriting Expert---Evidentiary value---Executant of agreement to sell transferred suit property in favour of his son after execution of alleged contract in favour of plaintiff---Plaintiff filed suit for specific performance of contract whereas son of executant filed suit for cancellation of agreement to sell---Suit filed on behalf of plaintiff for specific performance was decreed whereas that of defendant for cancellation of instrument was dismissed---Validity---Agreement to sell of immovable property was a contract enforceable by law---Contract itself did not create interest, right or title in such property and such type of document should be registered---Agreement to sell being document of financial liability and future obligation was required to be attested by two male or one male and two female witnesses---Such a document must be proved according to requirements of Art. 79 of Qanun-e-Shahadat, 1984 otherwise it could not be used as evidence---Alleged agreement to sell having been signed by two marginal witnesses could be proved if said witnesses were examined---Plaintiff had produced only one marginal witness of agreement to sell while other had not been examined---Nothing was on record whether said witness had already departed or was not available---Mere oral statement was not sufficient to prove non-availability of said witness---If said witness had departed then a person familiar to his signatures should be examined or plaintiff should apply to the Court for referring the disputed document to Handwriting Expert for comparison of alleged signatures with some admitted one of the executant---Report of such an expert was not conclusive but it was requirement of Art. 80 of Qanun-e-Shahadat, 1984---Plaintiff had not complied with the said mode to prove the alleged agreement to sell---Alleged contract was neither signed by its scribe nor bargain was struck in his presence and even consideration amount was not paid in his presence---Scribe or anyone else who had not put his signatures being marginal witness on documents required to be attested could not be considered as such---Contradictions with regard to venue of payment of consideration were on record---Courts below had failed to consider that neither evidence of plaintiff was cogent nor alleged contract had been proved as per law---Impugned judgments and decrees passed by the Courts below were set aside---Revision was allowed, in circumstances.

Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044; Hamid Qayum and others v. Muhammad Azeem through L.Rs and another PLD 1995 SC 381; Muhammad Sarwar v. Salamat Ali 2012 CLC 2094; Hafiz Tassaduq Hussain v. Muhammad Din through L.Rs and others PLD 2011 SC 241 and Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope.

Abdul Hakeem v. Habibullah and 11 others 1997 SCMR 1139; Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255; Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914 and Nazim-ud- and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24 rel.

Farhan Mustafa Jaffery and Sardar Akbar Ali Khan Dogar for Petitioner.

Muhammad Ashraf Sagoo for Respondents.

2020 M L D 1327

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

MUHAMMAD BILAL and others---Petitioners

Versus

Mst. BHIRANWAN BIBI---Respondent

Civil Revision No. 1130 of 2019, decided on 8th October, 2019.

Civil Procedure Code (V of 1908)---

----O. XLI, R. 27---Production of additional evidence in Appellate Court---Interim order---Scope---Petitioners, during pendency of their appeal, filed an application before the appellate court for comparison of the thumb impression of respondent with the one available on the disputed mutation, which application was dismissed---Validity---Petitioners during the proceedings of the suit had not raised the plea for verification of thumb impression of the respondent---Order declining the petitioners' plea was purely within the discretion of the appellate court and exercise of jurisdiction by appellate court could not be interfered with by the High Court in its revisional jurisdiction, especially when the final order was yet to be passed---Petitioners had to wait for the final outcome of the matter before calling said order into question---Revision petition was dismissed.

2020 M L D 1360

[Lahore (Rawalpindi Bench)]

Before Anwaarul Haq Pannun, J

MUHAMMAD RAFIQUE---Petitioner

Versus

TEHSIL MUNICIPAL ADMINISTRATION CHAKWAL and others-Respondents

Criminal Miscellaneous No. 1428-M of 2018, decided on 21st January, 2020.

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

----S. 133---Conditional order for removal of nuisance---Interpretation and scope of S.133, Cr.P.C.---Maxim: Sic utere tuo ut alienum non laedas---Scope---Petitioner assailed order passed by Magistrate whereby he had directed the public functionaries to close/remove unauthorized coach stands and illegal encroachments on the roads throughout the city---Petitioner and other respondents had established their coach stands without any permit or lawful authorization issued by the Regional Transport Authority---Maxim: sic utere tuo ut alienum non laedas (Use your own property in such a manner as not to injure that of another) was a complete answer to the contention of petitioner that he and others had established the coach stands on privately owned properties---Petitioner and others had established the coach stands in breach of their inviolable obligation of conducting themselves in accordance with law and the Constitution, therefore, the inherent powers vested in the High Court under S.561-A, Cr.P.C. could not be exercised in favour of the petitioner or any other person sailing the boats constructed with the same material---Petition, being devoid of merits, was dismissed.

Haji Mullah Noor Ullah v. Secretary Mines and Minerals and 3 others 2015 YLR 2349 rel.

Shah Muhammad v. Addl. Sessions Judge, Bahawalpur and 5 others 1998 PCr.LJ 1987; Haji Abdul Aziz and 2 others v. Haji Dost Muhammad and 5 others 1999 PCr.LJ 31; Haji Raz Muhammad and 9 others v. District Magistrate, Quetta 2000 PCr.LJ 1702; Mrs. Anjum Irfan v. Lahore Development Authority through Director-General and others PLD 2002 Lah. 555; Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997 and Zafrullah Khan v. Federation of Pakistan 2018 SCMR 2001 ref.

(b) Nuisance---

----Kinds---"Private nuisance", "public nuisance" and "annoyance"---Connotation.

Nuisance is a substantial interference with the right to use and enjoy land, which may be intentional, negligent or ultra-hazardous in origin, and must be a result of defendant's activity. Term 'Nuisance' connotes and includes any act, omission, animal or thing which causes or is likely to cause injury, danger, annoyance or offence to the sight, smell or hearing or disturbance to rest or sleep, or which is or may be dangerous to life or injurious to health or property or endanger the human life or unreasonable, unwarranted and/or unlawful use of property, which causes nuisance or damage to others, either to individuals or to the general public. Nuisance can include noxious smells, noise, burning, misdirection of water into other property, illegal gambling, unauthorized collection of rusting autos, indecent signs and pictures on business and a host of bother some activities. Where illegal they can be abated (changed, repaired or improved)by criminal or quasi-criminal charges. Nuisance is of two types i.e. private and public. Private nuisance is a civil wrong; it is the unreasonable, unwarranted, or unlawful use of one's property in a manner that substantially interferes with the enjoyment or use of another individual's property, without an actual trespass or physical invasion to the land. Public nuisance is a criminal wrong; it is an act or omission that obstructs, damages or causes inconvenience to the rights of the community. Obstructing a highway or creating a condition to make travel unsafe or highly disagreeable are examples of nuisance threatening the public convenience. Public nuisance is actionable only by the State, through criminal proceedings, injunction, or physical abatement, the same activity or conduct may also create a private nuisance to neighbouring landowners and thus result in a civil suit. Conduct of business in violation of any law may constitute a public nuisance. Term annoyance is flexible one. It has many shades and varieties of meaning. In a nuisance case, the fundamental inquiry always appears to be whether the use of certain land can be considered as reasonable in relation to all the facts and surrounding circumstances. The environmental laws are adoption of doctrine of nuisance to modern complex societies in that person's use of his property may harmfully affect another's property or person, far from the nuisance activity. As a result of industrial revolution and modern life having intricacies and complications involving state institutions, the law curbing nuisance affecting adversely the human life has developed in a great deal.

(c) Constitution of Pakistan---

----Art. 18---Freedom of trade, business or profession---Scope---Right of freedom of trade, business or profession is not absolute, as it can be subjected to reasonable restrictions and regulations as may be prescribed by law---Such right is not unfettered---Regulation of any trade or profession by a system of licensing empowers the Legislature as well as the authorities concerned to impose restrictions on the exercise of right.

Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44 ref.

Hassan Raza Pasha for Petitioner.

Ghulam Abbas Gondal, D.P.G.

Asad Mehmood Mughal and Qazi Afzaal Ahmad for Respondents.

2020 M L D 1384

[Lahore]

Before Muhammad Tariq Abbasi, J

DOST MUHAMMAD---Petitioner

Versus

The STATE and others---Respondents

Criminal Revision No. 24174 of 2019, heard on 31st January, 2020.

Juvenile Justice System Act (XXII of 2018)---

----S. 8---Age, determination of---Determination of age on the basis of medical examination report---Scope---Petitioner assailed order passed by Trial Court whereby request made by petitioner for ossification test of the accused was declined---Petitioner had got registered an FIR under S.302, P.P.C., against the accused for committing qatl-i-amd---Police had found the accused as minor, hence while declaring him so, had submitted the challan in the court constituted under the Juvenile Justice System Act, 2018---Section 8 of Juvenile Justice System Act, 2018 carried two steps: First was to be adopted by the Investigating Officer, whereas the other by the court---Where the accused claimed to be juvenile or from appearance he seemed so then the Investigating Officer or the court had to make an inquiry to that effect, which could include a medical report---Investigating Officer had only relied upon the documents produced before him by the accused---One of such documents was admittedly incorrect but even then no effort was made by Investigating Officer for medical examination of the accused---Even the Trial Court had failed to resolve the controversy in question---Revision petition was allowed, accordingly.

Naseem Ullah Khan Niazi for Petitioner.

Sana Ullah, Deputy Prosecutor General and Dr. Anwar Gondal, Additional Prosecutor General for the State.

2020 M L D 1484

[Lahore]

Before Ali Baqar Najafi, J

ASNA FARRUKH---Petitioner

Versus

VICE-CHANCELLOR and others---Respondents

Writ Petiiton No.8056 of 2020, decided on 3rd March, 2020.

Educational institution---

----Admission in medical college---Scope---Petitioner sought admission in the Medical College on the ground that the proforma respondent was selected on open merit, therefore, after his adjustment she deserved to be admitted on the basis of Under Developed District Quota---Validity---Emphasis of the policy of giving admission to the students from Under Developed District Quota was that such students should be encouraged to become doctors or dentists---Admission policy gave the students two options; either to compete in open merit or in the Under Developed District Quota in the area where they lived, but if there was choice before a candidate to get admission in open merit or Under Developed District Quota in the same college, he must be adjusted against the open merit so that the under developed area should not be deprived of one seat---Petitioner had a right to be admitted in the Medical College---Constitutional petition was allowed.

Maham Jahangir v. Government of Punjab and others 2018 CLC Note 80 distinguished.

Muhammad Ashraf Nawaz Chheena for Petitioner.

2020 M L D 1490

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

GHULAM MUSTAFA---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE and others---Respondents

Writ Petition No.8241 of 2018, decided on 14th October, 2019.

Civil Procedure Code (V of 1908)---

----O. XLI, Rr. 14, 17 & O. V, R. 20---Substituted service---Publication and service of notice of date for hearing appeal---Ex-parte hearing of appeal---Scope---Petitioner assailed judgment and decree passed by appellate court whereby appeal was accepted as a consequence of proceedings against the petitioner initiated after he was served only through mode of publication in the newspaper---Validity---Appellate court while admitting the case had issued notice to the petitioner through registered post but the report showed that notices had remained un-served and were affixed at the spot---Petitioner was, thereafter, served through publication---No effort was made by the court to serve the petitioner through ordinary mode---Petitioner was neither shown to be served and proceeded against ex-parte nor the impugned judgment and decree appeared to be an ex-parte judgment---Judgment and decree were set aside and the matter was remanded to the appellate court for decision afresh.

Ch. Khawar Siddique Sahi for Petitioner.

2020 M L D 1502

[Lahore]

Before Shahid Bilal Hassan, J

PUNJAB COLLEGE through Principal---Petitioner

Versus

GOVERNMENT OF PUNJAB through Chief Secretary and others---Respondents

Writ Petition No.58931 of 2019, decided on 29th April,2020.

Punjab Private Educational Institutions (Promotion and Regulation) Ordinance (IV of 1984)---

----S. 6(4)---Registration, refusal of---Petitioner college was aggrieved of refusal of authorities to register it for B.S (I.T.), B.F.A. and B.Ed. classes for 4 years program---Plea raised by authorities was that registration was refused to petitioner as it had applied after cut-off date---Validity---Authorities could not refuse registration of any institution, without giving proper hearing to the applicant and without recording reasons---No such practice was adhered to and all process as envisaged under S.6(4) of Punjab Private Educational Institutions (Promotion and Regulation) Ordinance 1984, was adopted and at the end registration certificate was not issued on the excuse that the application was filed after cut-off date---If application was after cut-off date the same would have been returned without proceeding further but the same was processed by the concerned authority---High Court observed that after observance of entire proceedings, the registration certificate should have been issued to petitioner instead of declining the same on lame excuse---Future of students who had taken admission and were studying in the college, could not be allowed to be ruined merely on the basis of technicalities---High Court declared the order passed by authorities as coram non judice and in violation of provision of basic enactment---High Court directed the authorities to issue registration certificate to petitioner---Constitutional petition was allowed, in circumstances.

Messrs Mehraj Flour Mills and others v. Provincial Government and others 2001 SCMR 1806 rel.

Iftikhar Ahmad Mian for Petitioner.

2020 M L D 1508

[Lahore (Balawalpur Bench)]

Before Tariq Saleem Sheikh, J

RAZIA NAWAZ---Applicant

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.3507-B of 2019, decided on 15th January, 2020.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324, 336, 337-F(i), 201, 148 & 149---Attempt to commit qatl-i-amd, itlaf-i-salahiyyat-i-udw, damiyah, causing disappearance of evidence, rioting, armed with deadly weapon, common object---Bail, grant of---Further inquiry---Scope---Contradictory statements of complainant---Prosecution case against accused was that she being mother-in-law of complainant made a phone call to the complainant for making settlement between him and his wife but when he reached at the specified place his wife with the help of six others amputated his penis---Neither the phone number was mentioned in the FIR nor any call data was available on record---History of the incident as mentioned in Medico-Legal Certificate (MLC) had contradicted with the FIR---Complainant had stated in the MLC that the accused alone had clenched him by neck but in the hospital he had told the Medical Officer that two women and four men had jointly held him by neck---Circumstances called for further inquiry within the meaning of S.497(2), Cr.P.C. to determine the guilt of accused---Accused was not required for any further investigation---Accused was a woman and the first proviso to subsection (1) of S.497, Cr.P.C. envisaged concession in the matter of bail for female accused irrespective of the gravity of the offence---Petition for grant of bail was accepted.

Mst. Raeesa v. The State 1985 PCr.LJ 2823; Mst. Zebo v. The State 1989 PCr.LJ 594; Nasim Akhtar v. The State 2005 YLR 2870 and Mst. Nasreen v. The State 2006 YLR 2775 ref.

Syed Zeeshan Haider for Petitioner.

Malik Muhammad Latif, DPG with Alamgir ASI.

2020 M L D 1525

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh and Anwaarul Haq Pannun, JJ

NAZIR AHMAD alias GUGGI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.38 of 2019, heard on 18th September, 2019.

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

---S. 9(c)---Possession of narcotics---Contradictory evidence---Withholding best evidence---Safe custody---Scope---Accused was apprehended with 1259 grams of charas along with weighing scale, bots and wattak money---Eye-witness of recovery deposed that the charas was in two pieces while the Investigating Officer said that it was in one piece---Complainant deposed that he made three parcels of the recovered articles but the eye-witness of recovery indicated that they were more than three---Moharrar categorically stated that the parcels were four in number---Complainant had sent the complaint to the police station for registration of FIR through a constable but said constable was not examined---Prosecution had failed to prove safe custody of the case property and safe transmission of the sample parcel from the crime scene to the Forensic Laboratory, which was mandatory---Complainant deposed that he sealed the recovered charas in the shape of 'pothli', however, the Trial Court observed that the parcel produced before it was not in that shape---Charas was not the same, which was allegedly recovered from the accused and he was also not confronted with the same---Positive report of Forensic Laboratory was of no avail to the prosecution, in circumstances, as the primary evidence was liable to be discarded---Appeal against conviction was allowed, in circumstances.

Minhaj Khan v. The State 2019 SCMR 326; Ikramullah v. State 2015 SCMR 1002 and The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 ref.

(b) Criminal trial---

----Assumption---Scope---Criminal cases cannot be decided on assumptions---Prosecution must prove each relevant fact through legal evidence.

Fayyaz Ahmad Lakhwera for Appellant.

Malik Muhammad Mudassar Ali, Deputy Prosecutor General with Taj Muhammad/SI for the State.

2020 M L D 1619

[Lahore (Multan Bench]

Before Tariq Saleem Sheikh, J

MUHAMMAD FAROOQ KHAN---Petitioner

Versus

MUHAMMAD ASHIQ---Respondent

Civil Revision No.658-D of 2012, decided on 22nd June, 2020.

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

----Ss. 13 & 6---Suit for pre-emption---Talb-i-Ishhad---Demand by establishing evidence---Notice of Talb-i-Ishhad was to be sent through registered post and with acknowledgement due---Where receipt of such notice was denied by defendant, pre-emptor/plaintiff was required to produce acknowledgement receipt and postman who delivered such notice, and failing to do the same was fatal for pre-emptor's case.Mir Sahib Khan v. Muhammad Rauf Khan 1992 SCMR 1780; Muhammad Ramzan v. Lal Khan 1995 SCMR 1510; Muhammad Rafique v. Muhammad Shafique and others 2013 YLR 145; Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Bashir Ahmed v. Ghulam Rasool 2011 SCMR 762; Allah Ditta through L.Rs. and others v. Muhammad Anar 2013 SCMR 866 and Basharat Ali Khan v. Muhammad Akbar 2017 SCMR 309 rel.

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

----S. 115--- Revision---Scope---Concurrent findings of fact---While exercising jurisdiction of revision under S.115, C.P.C., High Court could not interfere in concurrent findings of courts below unless they were erroneous and had occasioned miscarriage of justice.

Haji Muhammad Saleem v. Khuda Bakhsh PLD 2003 SC 315 rel.

2020 M L D 1689

[Lahore (Multan Bench)]

Before Rasaal Hasan Syed, J

ADNAN ALI---Petitioner

Versus

RENT CONTROLLER, MULTAN CANTT. and 2 others---Respondents

Writ Petition No.135788 of 2019, decided on 17th September, 2019.

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

----Ss.17 & 24---Eviction of tenant---Tentative rent, determination of---Interim order---Maintainability---Scope---Tenant assailed order as to the deposit of future rent and arrears of rent pending disposal of the ejectment petition---Validity---Section 24 of Cantonments Rent Restriction Act, 1963, provided for an appeal against the order of the Rent Controller within 30 days but it specifically excluded interim orders from the category of orders which were appealable---Cantonments Rent Restriction Act, 1963, did not provide any appeal against an interim order---Constitutional jurisdiction could not be invoked in aid of injustice or to deflect express provisions of the statutory law and that where the legislature in its wisdom did not permit the filing of appeal against interim orders, the constitutional jurisdiction could not be invoked to circumvent the intent of legislature---Impugned order was challenged after about two years and there was no explanation for such a long inaction on the petitioner's part --- Constitutional petition was dismissed.

Mian Manzar Bashir and others v. M.A. Asqhar & Co. PLD 1978 SC 185; Mumtaz Hussain alias Bhutta v. Chief Administrator of Auqaf, Punjab, Lahore and another 1976 SCMR 450; Mst. Seema Begum v. Muhammad Ishaq and others PLD 2009 SC 45; Muhammad Saeed v. Mst. Saratul Fatima and another PLD 1978 Lah. 1459 rel.

2020 M L D 1732

[Lahore]

Before Shahid Bilal Hassan, J

Syed ALI IRFAN NAQVI and another---Appellants

Versus

Sheikh MUHAMMAD ASIF and 3 others---Respondents

R.S.A. No.201 of 2012, decided on 29th April, 2020.

Specific Relief Act (I of 1877)---

----S. 12---Contract Act (IX of 1872), S. 55---Suit for specific performance of agreement to sell---Time as an essence of contract---Contention of defendants was that plaintiffs had failed to pay balance sale consideration within specific period and agreement to sell had been cancelled---Suit was decreed concurrently---Validity---Agreement to sell was an admitted document and non-signing of the same by one of the vendees was not fatal for its execution---Relief of specific performance of agreement to sell pertaining to an immovable property was discretionary---Court might refuse the relief of specific performance even agreement to sell had been proved by the plaintiff---Plaintiff could not claim the relief of specific performance as a matter of right---Time was an essence of agreement to sell in the present case---Plaintiffs had failed to pay remaining consideration amount within specified time---Courts below had failed to appreciate and construe law on the subject in a proper way---Material illegalities and irregularities had been committed by the Court below while passing the impugned judgments and decrees which were set aside and suit was dismissed---Second appeal was allowed, in circumstances.

Muhammad Sattar and others v. Tariq Javaid and others 2017 SCMR 98; Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others 2019 SCMR 524 and Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 rel.

Baleegh Uz Zaman Chaudhry for Appellants.

2020 M L D 1750

[Lahore]

Before Raja Shahid Mehmood Abbasi, J

ABID---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No.18736-B of 2020, decided on 4th June, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 394, 337-A(i), 337-F(iii), 337-F(v) & 411---Voluntarily causing hurt in committing robbery, shajjah-i-khafifah, mutalahimah, hashimah, dishonestly receiving stolen property---Bail, grant of---Further inquiry---Scope---Allegation against accused was that when complainant along with others was present in his agency and counting the cash, three unknown accused committed robbery, snatched cash and on resistance fired upon one of them---Burden of committing the crime in question was pointed towards three unknown assailants, who were already apprehended in the case and were transported to jail on judicial remand---Role of accused as found during identification parade was that he remained on watch and did not enter the premises---Recovery of Rs.20,000/- and a pistol from the accused hardly connected him with the crime as recovery of currency was of general pattern as it was not clear whether these were the same currency notes which were taken away by the accused during the occurrence---Evidentiary value of the recovery could only be adjudged by the Trial Court after recording of evidence of the parties at trial---Case of accused was one of further inquiry as contemplated by S. 497(2), Cr.P.C.---Investigation to the extent of accused was complete and he was not required for further investigation---Petition for grant of bail was allowed, in circumstances.

Irslan Zohaib v. The State 2016 SCMR 1217 ref.

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

----S.497---Bail---Principle---Scope---Where the offence does not fall within the prohibitory clause of S.497, Cr.P.C., grant of bail in such like cases is a rule and refusal is an exception.

Tariq Bashir v. The State PLD 1995 SC 34 ref.

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

----S.497---Bail---Deeper appreciation of evidence---Scope---Deeper appreciation or evaluation of evidence at bail stage is neither desirable nor permissible.

Malik Azhar Abbas Waseer for Petitioner.

Ms. Noshee Malik, D.P.G. with Fayaz Hussain, S.I.

2020 M L D 1760

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

MUHAMMAD IQBAL---Petitioner

Versus

DISTRICT JUDGE, VEHARI and others---Respondent

W.P. No.15299 of 2019, decided on 10th October, 2019.

Civil Procedure Code (V of 1908)---

----O.XVI, R.1---Summons to attend to give evidence or produce documents---Scope---Petitioner assailed orders passed by courts below whereby his application for submission of list of witnesses was dismissed---Validity---Assertion of petitioner that the list of witnesses was earlier available on record but was lost subsequently was not established from the record---Petitioner had filed the application for placing on record the list of witnesses after more than two years of framing of issues and the reason mentioned in the application was not found to be sufficient by the courts below and the said findings of facts were not found to be erroneous by the High Court---Constitutional petition was dismissed.

Umar Hayat v. Additional District Judge and others 2004 SCMR 1367; Famir Asghar v. Asghar Ali and 2 others 2019 MLD 79 and Naeem Akhtar v. Additional District Judge and others 2005 MLD 1713 distinguished.

Muhammad Anwar and others v. Mst. Ilyas Begum arid others PLD 2013 SC 255 ref.

2020 M L D 1773

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Mst. GHAFOORAN BIBI---Appellant

Versus

MUHAMMAD AMIN NASIR and others---Respondents

F.A.O. No.685 of 2014, heard on 4th June, 2020.

Civil Procedure Code (V of 1908)---

----O.XLI, Rr. 23 & 24---Remand of case---Sufficient evidence--- Suit was decreed by Trial Court in favour of plaintiff but Lower Appellate Court remanded the matter to Trial Court for comparison of disputed thumb impressions---Validity---Unnecessary remand resulted in undue delay in cases and was an addition to agony of litigant besides over burdening Court dockets as well as wastage of its precious time---Constitutional imperative demanded inexpensive and speedy justice, that was why practice of frequent remand orders were time and again reprimanded by superior Courts---High Court observed that there was no occasion for Lower Appellate Court for remand of original suit, as the same was violative to the law on the subject and against the mandate of law settled by Supreme Court---High Court set aside remand order and remanded the matter to Lower Appellate Court to decide appeals against judgment and decree passed by Trial Court---High Court directed that if it was inconsequential to go for comparison of disputed thumb impressions, then Lower Appellate Court would do such exercise at its own level--- Appeal was allowed accordingly.

Robeena Shaheen v. Muhammad Munir Ahmad PLD 2013 Lah. 106, Arshad Ameen v. Messrs Swiss Bakery and others 1993 SCMR 216 and Mst. Shahida Zareen v. Iqrar Ahmed Siddiqui 2010 SCMR 1119 rel.

Muhammad Muzammil Qureshi, Atif Mohtashim Khan and Zubair Ahmed Virk in three connected appeal respectively for Appellants.

Nemo. for Respondents.

2020 M L D 1862

[Lahore]

Before Shehram Sarwar Ch. and Farooq Haider, JJ

IFTIKHAR AHMAD---Appellant

versus

The STATE and another---Respondents

Criminal Appeal No.1969 of 2016 and Murder Reference No.506 of 2016, decided on 21st November, 2019.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, common object---Appreciation of evidence---Benefit of doubt---Delayed FIR---Un-natural conduct---Scope---Accused, and acquitted co-accused persons, were alleged to have murdered the deceased and injured the eye-witness---Matter was reported to the police with a delay of five hours and thirty minutes---Complainant's presence on the spot was doubtful for the reason that he did not receive even a scratch during the incident and his name was not shown in the medico legal reports as the person who accompanied the injured to the hospital---Presence of injured witness was doubtful for the reasons that he got himself medically examined after about four hours of the incident; no corresponding holes of the injury were found on his clothes; no blood was found on his clothes and no blood stained earth was taken into possession from the place where he received firearm injury---Injury on the person of said witness did not stamp him as a truthful witness---Evidence of two witnesses was shaky in nature and could not be relied upon for maintaining the conviction of the accused---Prosecution could not prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127 and Amin Ali and another v. The State 2011 SCMR 323 ref.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, common object---Motive not proved---Scope---Accused, along with acquitted co-accused persons, was alleged to have murdered the deceased and injured the eye-witness for the reason that complainant party purchased four acres land from someone---No documentary proof of land allegedly purchased by the complainant party was got exhibited by the prosecution---Complainant, during cross-examination, had stated that the place of occurrence was not owned by him as well as prosecution witness which negated the story of motive---No independent witness qua motive was joined by police in investigation or produced by the prosecution before the Trial Court---Prosecution had failed to substantiate the motive against the accused---Appeal against conviction was allowed, in circumstances.

(c) Criminal trial---

----Medical evidence---Scope---Medical evidence may confirm the ocular account with regard to receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death, but it does not tell the name of the assailant. [p. 1869] J

Ata Muhammad and another v. The State 1995 SCMR 599 ref.

(d) Criminal trial---

----Witness---Injured witness---Scope---Injury on the body of a person does not stamp him as a truthful witness.

Amin Ali and another v. The State 2011 SCMR 323 ref.

(e) Maxim---

----Falsus in uno, falsus in omnibus---Applicability---Witness who lies about any material fact must be disbelieved as to all other facts by applying the principle of falsus in uno, falsus in omnibus.

PLD 2019 SC 527 ref.

(f) Criminal trial---

---Duty of prosecution---Scope---Prosecution has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weakness of the case of defence.

(g) Criminal trial---

----Benefit of doubt---Scope---Single circumstance creating reasonable doubt regarding the prosecution case is sufficient to give benefit of doubt to the accused.

Muhammad Akram v. The State 2009 SCMR 230 ref.

Mrs. Nighat Saeed Mughal for Appellant.

Tariq Javed, Addl. Prosecutor General for the State.

Peer Ashraf Ali Qureshi and Nasir Dilshad Joyia for the Complainant.

2020 M L D 1870

[Lahore (Rawalpindi Bench)]

Before Mirza Wiqas Rauf, J

Mirza MUHAMMAD ALI---Petitioner

versus

UNIVERSITY OF THE PUNJAB through Vice Chancellor and 2 others---Respondents

Writ Petition No.2748 of 2019, decided on 14th October, 2019.

Educational institution---

----Petitioner, student of law, completed his FSc in the year 2018 and got admission in Law College in Five Years Programme of Bachelor of Law in the year 2019---Grievance of petitioner was that despite completion of his course of Part I with the Law College, he was not allowed by the University to take part in the upcoming examination---Validity---Regulation No. 5 of the Faculty of Law regarding Statutes and Regulation of LL.B (05 Years Programme) for the affiliated colleges under Annual System with effect from the Academic Session, 2016, provided that only such person could take part in the examination, who was on the rolls of the University Law College or an affiliated Law College, as the case might be, in LL.B Part I during the academic year preceding the examination---Petitioner had got admission in the Law College in the year 2019 and as such he was on the rolls of the said college from the current year, he was, thus, not entitled to take part in the examination to be held in the year 2019 as per mandate of the Regulation---Constitutional petition was dismissed, in circumstances.

Mirza Muhammad Nazakat Baig for Petitioner.

Mirza Asif Abbas, Addisitant Advocate General for Punjab.

2020 M L D 1873

[Lahore]

Before Raja Shahid Mehmood Abbasi, J

SOHAIL AHMAD GHAURI---Petitioner

versus

The STATE and others---Respondents

Criminal Miscellaneous No.73529-B of 2019, decided on 16th January, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 345---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Compromise between parties---Further inquiry---Scope---Accused sought post arrest bail in a case registered under S.489-F, Cr.P.C.---Accused apprised the Court that the dispute with the complainant was settled---Complainant endorsed the factum of compromise, submitted an affidavit and stated that he had no objection if bail application of the accused was allowed---Held; offence with which the accused was charged was compoundable as mentioned in S.345, Cr.P.C.---Compromise between the parties was always a redeeming feature, which brought peace and harmony in the society---Statement of complainant coupled with his affidavit reflected that he had entered into compromise of his own free will and consent and had no objection if bail application was allowed---Case of accused called for further inquiry falling under S.497(2), Cr.P.C.---Accused was not required for further investigation---Bail was allowed, in circumstances.

Ashtar Ausaf Ali, Muhammad Qamar uz Zaman and Barrister Asad Rahim Khan for Petitioner.

Baleeghuz Zaman Chaudhree along with Complainant.

2020 M L D 1875

[Lahore (Multan Bench)]

Before Muzamil Akhtar Shabir, J

Mst. RASHEED BIBI---Petitioner

versus

MUHAMMAD ARSHAD and others---Respondents

Writ Petition No.14751 of 2019, decided on 2nd October, 2019.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Suit for declaration---Interim injunction, refusal of---Un-registered gift deed---Scope---Petitioner, third wife of respondent, filed a suit for declaration by contending therein that she was owner in possession of the suit land on the basis of gift deed executed by respondent in her favour, she was put in possession of the said property and subsequently, it transpired that the same land was transferred by respondent in favour of his second wife through gift mutation---Petitioner's application for interim relief was concurrently dismissed---Validity---Claim of petitioner was based on a gift deed allegedly executed between the parties which was never produced before any competent authority for the purpose of transferring the property in favour of the petitioner and the genuineness of the said deed was required to be established by recording evidence, whereas second wife had been transferred the suit land through mutation in the revenue record---Petitioner had not been able to establish any prima facie case in her favour---Balance of convenience was also not in favour of petitioner and her claim was based on an un-registered document---Petitioner could not establish as to how she would suffer irreparable loss in case stay was not granted, besides she was protected by the principle of lis pendens---Constitutional petition was dismissed, in circumstances.

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

----O. XXXIX, Rr. 1 & 2---Cases in which temporary injunction may be granted---Injunction to restrain repetition or continuance of breach---Prima facie case---Document required to be established through evidence---Scope---Where a document, on the basis of which a party claims relief, is required to be established by recording of evidence, prima facie case cannot be presumed.

Mian Tahir Iqbal for Petitioner.

2020 M L D 1877

[Lahore]

Before Muhammad Waheed Khan, J

IRFAN MASIH---Petitioner

versus

THE STATE and others---Respondents

Criminal Miscellaneous No.3110-B of 2020, decided on 10th March, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 109---Qatl-i-amd, abetment---Bail, grant of---Delay in conclusion of trial---Scope---Petitioner sought bail on the ground of delay in conclusion of trial---Trial court had categorically stated in the report that the major responsibility for the delay in trial was on the complainant party, who was not cooperating with the court, to produce evidence, although during such period petitioner had also procured five adjournments---Delay in conclusion of trial was mainly caused by the prosecution or the court itself---Even if, adjournments sought by the petitioner were excluded, his total detention was more than 2 years---Despite lapse of 5½ years since the indictment of petitioner, not a single witness was produced---Speedy trial was the right of every accused, therefore, unnecessary delay in conclusion of trial resulted in denial of justice---Inordinate and shocking delay in conclusion of trial had made out the case of petitioner for grant of post-arrest bail---Petitioner was admitted to post-arrest bail, in circumstances.

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

----S. 497---Bail---Delay in conclusion of trial---Scope---Where a case is made out on statutory delay in conclusion of trial then, ordinarily, bail was not refused on hyper technical grounds.

Adnan Prince v. The State and others PLD 2018 SC 147 ref.

Rai Ghulam Mustafa for Petitioner.

Sana Ullah, Deputy Prosecutor General with Arshad SI.

2020 M L D 1879

[Lahore]

Before Aalia Neelum and Anwarul Haq Pannun, JJ

MUHAMMAD AKHTAR---Appellant

versus

The STATE and others---Respondents

Criminal Appeal No.1660 of 2016, decided on 17th February, 2020.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Scope---Accused was alleged to have been found in possession of 30 kilograms of bhukki---High Court, in view of recovery of narcotic substance fully substantiated by recovery witness, complainant, investigating officer, positive report of narcotics analysis with regard to parcels of samples and the fact that the complainant and other officials had no previous ill will to falsely involve the accused in the case, held that the accused was rightly convicted and sentenced by the Trial Court---Accused, through his counsel, had admitted his presence at the place of occurrence---Conviction recorded by Trial Court was maintained---Appeal was dismissed.

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

----S. 9(c)---Possession of narcotics---Consolidation of bags recovered from accused---Effect---Accused was alleged to have been found in possession of three bags of bhukki weighing a total 30 kilograms---Complainant took 500/500 grams from each bag as sample and prepared one consolidated parcel of remaining contraband---Accused could not have been sentenced to imprisonment for life as prosecution had destroyed the evidence by consolidating three bags of recovered contraband---High Court observed that only 1500 grams of bhukki could be considered against the accused---Accused had served out five years, six months and five days in imprisonment---Sentence already undergone by the accused was considered to be adequate by the High Court---Appeal was dismissed, however, the sentence of accused was reduced.

Fareed Ullah v. State 2013 SCMR 302 ref.

Ghulam Murtaza's case PLD 2009 Lah. 362 and Amir Zaib v. The State PLD 2012 SC 380 rel.

Ch. Amin Rehmat for Appellant.

Muhammad Waqas Anwar, Deputy Prosecutor General for the State.

2020 M L D 1891

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

Mst. BUSHRA---Petitioner

versus

DISTRICT POLICE OFFICER, KHANEWAL and 2 others---Respondents

Criminal Miscellaneous No.1776-HB of 2019, decided on 29th March, 2019.

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

----S. 491---Habeas corpus---Custody of minor---Right of hizanat---Scope---Petitioner being mother of minor, aged about 2 years, sought his recovery from the illegal and improper detention of minor's father---First right of hizanat regarding custody of minor laid with the petitioner---Petitioner had claimed that the minor was snatched from her custody---Petitioner had also appended her affidavit along with the petition but no counter affidavit by the respondent was filed---Petition was allowed and the custody of minor was handed over to the petitioner, in circumstances.

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

----S. 491---Guardians and Wards Act (VIII of 1890), S. 25---Habeas corpus---Custody of minor---Pendency of petition before Guardian Court---Effect---Guardian court is the final arbitrator to adjudicate upon the question of custody of a child but this does not mean that where a parent is holding custody of a minor lawfully and is deprived of such custody, such parent cannot seek remedy to regain the custody while the matter is sub judice before a Guardian Court---High Court, in exercise of its power under S. 491, Cr.P.C. has to exercise parental jurisdiction and is not precluded, in any circumstance, from giving due consideration to the welfare of the minor and to ensure that no harm or damage comes to him physically or emotionally by reason of breakdown of family tie between the parents.

Mirjam Aberras Lehdeaho v. S.H.O. Police Station Chung, Lahore and others 2018 SCMR 427 ref.

Rana Muhammad Sarfraz Shaukat for Petitioner.

Tajammal Hussain Awan for Respondent No.3.

2020 M L D 1896

[Lahore (Bahawalpur Bench)]

Before Sadiq Mahmud Khurram, J

MUHAMMAD ASIF JAVED---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous No.1912-CB of 2020/BWP, decided on 3rd July, 2020.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Petition for cancellation of bail, refusal of---Extra-judicial confession---Call data record---Non-availability of voice record transcript of contact of accused and co-accused---Effect---Prosecution case against accused was that she, in collusion with co-accused, committed the qatl-i-amd of her husband---Two witnesses during their statements under S.161, Cr.P.C., stated that the accused confessed before them to have murdered her husband---Statements of witnesses were recorded with delay which casted shadow of doubt on the prosecution evidence---Witnesses did not react at all upon the alleged confessional statement of the accused---Statements of the said witnesses were not inspiring or natural---Accused, after her arrest, was not produced before Magistrate to get her statement recorded---Report of Forensic Laboratory showing contact between accused and co-accused through call data record was of no avail as voice record transcript was not available on record---Case of prosecution was against the co-accused who had allegedly fired at the deceased---No reason existed to set aside the order passed by Trial Court whereby accused was admitted to post-arrest bail---Petition for cancellation of bail was dismissed, in circumstances.

Shahid Imran v. The State and others 2011 SCMR 1614 and Dr. Muhammad Rariq v. The State and others 2017 SCMR 1944 rel.

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

----S. 497---Bail---Extra-judicial confession---Evidentiary value, determination of---Scope---Extra-judicial confession of accused is a weak type of evidence which may be maneuvered by the prosecution in a case where direct connecting evidence does not come its way---Evidentiary value of such type of evidence is to be determined by Trial Court at an appropriate stage. [p. 1899] F

Rahat Ali v. State 2010 SCMR 584 and Muhammad Hussain v. Afzal Ahmed and another 1995 SCMR 932 ref.

Abid Mehmood v. State 2017 SCMR 728 and Allah Ditta v. The State 2012 SCMR 184 rel.

2020 M L D 1944

[Lahore (Bahawalpur Bench)]

Before Sadiq Mahmud Khurram, J

Mst. SUGHRAN MAI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.931-B/2020/BWP, decided on 16th April, 2020.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd and common intention---Bail, grant of---Un-witnessed incident---Further inquiry---Scope---Accused was alleged to have murdered the complainant's father with the help of an unknown accused---Alleged occurrence was un-witnessed---Total basis of allegation against the accused was suspicion of complainant and the witnesses---Suspicion, however strong, could not be considered proof of any fact---Nothing was recovered from the possession of accused---Accused had no motive to murder the deceased, with whom, according to prosecution itself, she was having an illicit liaison---Cause of death was undetermined as yet---Case of accused was covered by first proviso to subsection (1) of S.497, Cr.P.C.---Age of accused was recorded as 55/60 years---Case of accused was one of further inquiry---Requirement of law that there should be reasonable grounds to believe that the accused had committed the offence could not be prima facie established by the prosecution---Petition for grant of bail was accepted.

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

----S.497---Bail---Expression 'reasonable grounds to believe'---Scope---Court considering a bail application has to tentatively look to the facts and circumstances of the case and once it comes to the inference that no reasonable ground exists for believing that the accused has committed a non-bailable offence, it has the discretion to release the accused on bail---In order to ascertain whether reasonable grounds exist or not, the Court was to confine itself to the material placed before it by the prosecution to see whether some perceptible evidence is available against the accused, which, if left un-rebutted, may lead to inference of guilt---Reasonable grounds are not to be confused with mere allegations or suspicions nor with tested and proved evidence, which the law requires for a person's conviction for an offence---Term "reason to believe" can be classified at a higher pedestal than mere suspicion and allegation---Even the strongest suspicion cannot transform in "reason to believe".

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

----S. 497---Bail---Heinous nature of offence---Scope---Mere involvement in a heinous offence is no ground for refusing bail to an accused who otherwise becomes entitled for the concession of bail.

Syed Zafar Hussain Shah for Petitioner.

Muhammad Rashid Ali Khan for the Complainant/Respondent No.2.

Shahid Farid, Assistant District Public Prosecutor with Akhtar, ASI

2020 M L D 1981

[Lahore (Multan Bench)]

Before Tariq Saleem Sheikh, J

KORAY KHAN---Petitioner

Versus

MANAGER OPERATIONS, MEPCO and others---Respondent

Civil Revision No.836-D of 2019, decided on 8th July, 2020.

Electricity Act (IX of 1910)---

----Ss. 26-A, 26, 36 & 35---Specific Relief Act (I of 1877), S. 12 & 42---Dishonest abstraction or consumption of electricity---Jurisdiction of Civil Court in matters involving theft of electricity and meter tampering---Scope---Suit for declaration and permanent injunction challenging detection electricity bill and seeking to permanently restrain Electricity Supply Company from disconnecting plaintiffs meter was concurrently dismissed by courts below---Validity---Plaintiff, in the present case, was accused of deliberate tampering with meter and theft of electricity and therefore such suit was not competent as Ss.26 and 26-A of Electricity Act, 1910 dealt with dishonest abstraction or consumption of energy and provided mechanism for resolution of dispute between licensee/Electricity Supply company and consumer---Such matter fell within jurisdiction of Electric Inspector and Advisory Board constituted under Electricity Act, 1910, and suit before Civil Court ought to be dismissed as same was not maintainable---Revision was dismissed, accordingly.

Water and Power Development Authority and others v. Messrs Kamal Food (Pvt.) Ltd. Okara and others PLD 2012 SC 371; Water and Power Development Authority and others v. Mian Muhammad Riaz and another PLD 1995 Lah. 56; Colony Textile Mills Ltd. Multan through Factory Manager v. Chief Executive, Multan Electricity Power Company and (MEPFO), Multan and 2 others 2004 SCMR 1679; Multan Electric Power Company Ltd. through Chief Executive and another v. Muhammad Ashiq and others PLD 2006 SC 328; Water and Power Development Authority through Chairman, WAPDA and 4 others v. Abdul Skakoor through Legal Heirs PLD 2008 Lah. 175 and WAPDA v. Muhammad Azeem 2009 MLD 1434 rel.

2020 M L D 2011

[Lahore]

Before Masud Abid Naqvi and Jawad Hassan, JJ

AMJAD ALI---Appellant

Versus

Mst. SHAHEEN BIBI and others---Respondents

I.C.A. No.40084 of 2020, decided on 9th September, 2020.

(a) Family Courts Act (XXXV of 1964)---

----Ss. 11 & 14(3)---Closure of right to produce evidence---Interim order---Maintainability---Scope---Appellant/defendant assailed order passed by Family Court whereby his right to produce evidence was closed---Single Judge of High Court vide impugned order had dismissed the constitutional petition---Validity---Family Court, before passing the impugned order, had granted many opportunities to the appellant to produce his evidence, who despite availing absolute and final opportunities had failed to produce the same---Family Court had no option except to close his right to produce evidence---Order passed by Family Court was interim/interlocutory in nature against which constitutional petition did not lie---Section 14(3) of Family Courts Act, 1964 provided that no appeal or revision would lie against an interim order passed by a Family Court---Family Courts Act, 1964 had explicitly barred the remedy of appeal or revision against such an order, therefore, in case constitutional petition was entertained against such an order, it would amount to circumventing the intention of the legislature and to frustrate the express provision of law---Intra-court appeal, being bereft of merit, was dismissed.

Muhammad Anwar Khan v. Mst. Yasmin Zafar 1987 SCMR 2029; Ms. Qauratulain Aleem v. Muhammad Rehman Khan and another 2006 YLR 2604 and Mst. Noor Jehan alias Tasleem Begum v. Muhammad Arshad and another 1986 CLC 442 ref.

President All Pakistan Women Association Peshawar Cantt. v. Muhammad Akbar Awan and others 2020 SCMR 260 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Interim order---Maintainability---Scope---Constitutional petition does not lie against an interlocutory order, unless there is found any blatant illegality which has caused injustice to the rights of any of the parties.

(c) Law Reforms Ordinance (XII of 1972)---

----S. 3---Intra-court appeal---Maintainability---Scope---Subsection (2) of S.3 of Law Reforms Ordinance, 1972 provides that no appeal shall lie under subsection (1) or subsection (2) from an interlocutory order or an order which does not dispose of the entire case before the court.

2020 M L D 2014

[Lahore (Rawalpindi Bench)]

Before Raja Shahid Mehmood Abbasi, J

ARMY STRATEGIC COMMAND FORCE through Authorised Representative---Appellant

Versus

SAEED AZAM and another---Respondents

Criminal Appeal No.879 of 2018, decided on 4th April, 2019.

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

----S. 406---Criminal breach of trust---Appreciation of evidence---Scope---Prosecution case was that the accused entered into an oral agreement with the appellant for sale of land measuring 319 kanals and certain amount was paid to him but the accused only transferred 110 kanals and misappropriated the remaining amount---Accused thereafter entered into an agreement to return the said amount in three instalments but he failed to return it---Trial Court had rightly found that the agreement between the accused and appellant was not proved---One of the eye-witnesses had stated that the person who had entered into oral agreement with the accused was transferred while the other witness had stated that the agreement was not executed in his presence--Provisions of S.406, P.P.C., were not attracted in the present case as handing over of amount to accused as trust was not proved---Prosecution had failed to prove its case against the accused beyond reasonable doubt---Appeal was dismissed.

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

----S. 405---Criminal breach of trust---Scope--- Ingredients of the criminal breach of trust, detailed.

Following are the essential ingredients of criminal breach of trust:

(i) The property should be entrusted in any manner to the person;

(ii) party should have domain over the property;

(iii) party should have dishonestly misappropriated or converted the property to his own use; or

(iv) dishonestly used or disposed of the property in violation of law.

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

----S. 417---Appeal against acquittal---Scope---Accused who is acquitted earns double presumption of innocence which cannot be interfered with unless it is shown that the judgment of the lower court is perverse or that it is illegal and no other conclusion can be drawn except the guilt of the accused or there has been misreading or non-reading of the evidence resulting in miscarriage of justice.

Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 and Jahangir v. Aminullah and others 2010 SCMR 491 ref.

2020 M L D 2018

[Lahore]

Before Jawad Hassan, J

Messrs ASK CONSTRUCTION---Petitioner

Versus

PUNJAB PROVINCE and others---Respondents

Writ Petition No.39538 of 2020, decided on 8th September, 2020.

Constitution of Pakistan---

----Arts. 199, 4 & 5---Constitutional petition---Right of individuals to be dealt in accordance with law---Loyalty to State and obedience to the Constitution and law---Scope---Petitioner, a government contractor, sought direction to the respondents/authorities to release his admitted dues which were being held up without any legal justification---Validity---Article 4 of the Constitution clarified that it was the inalienable right of every citizen to enjoy the protection of law and to be treated in accordance with law and no action detrimental to the life, liberty, body, reputation or property of a person would be taken except in accordance with law---Article 5(2) of the Constitution provided that obedience to the Constitution and law was the inviolable obligation of every citizen---High Court remitted a copy of writ petition to the authorities, who were directed to hear the petitioner and decide the issue of payment of his outstanding amount, if any, after verifying the relevant record.

Afrah Enterprises (Pvt.) Limited v. Province of Punjab and others 2005 CLC 1303; Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Messrs Huffaz Saemless Pipe Industries Ltd. v. Sui Northern Gas Pipeline Ltd. and others 1998 CLC 1890 and Tahir Mirza v. Saleha Mehmood, DCO and others 2019 YLR 2852 ref.

Messrs Usmani Associates v. Pakistan Housing Authority through Managing Director and 2 others 2005 MLD 233; National Commission on Status of Women through Chairperson and others v. Government of Pakistan through secretary Law and Justice and others PLD 2019 SC 218; Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997 and President of Balochistan High Court Bar Association and others v. Federation of Pakistan and others 2012 SCMR 1784 rel.

Riaz Karim Qureshi for Petitioner.

2020 M L D 2075

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

MUHAMMAD WARIS---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No.4213-B of 2019, decided on 14th January, 2020.

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

----S. 497---Bail---Medical grounds---Scope---Accused sought post-arrest bail on the ground of his illness and malady---Perusal of the medical opinion transpired that the condition of accused was stable and it was not opined that his detention in jail would be hazardous to his life, which was a requisite condition for grant of bail on medical ground---Petition for grant of bail was dismissed, in circumstances.

Nazir Ahmed and another v. The State and others PLD 2014 SC 241 and Muhammad Aslam v. the State and others PLD 2015 SC 41 ref.

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

----S. 497---Bail---Medical grounds---Conditions--- Scope---Grant of bail under first proviso to S.497(1) of Cr.P.C. is discretionary in nature---Every ailment does not attract invocation of discretion contained in the proviso to subsection (1), S.497, Cr.P.C.---Strong reasons are required to believe that despite availability of modern medical technology, life saving drugs, advance medical treatment and care, accused still requires treatment which is not generally available---Medical opinion should be so explicit in nature that further detention of accused in jail would be hazardous to his life---Bail on medical ground can be granted under S.497, Cr.P.C., if the court reaches to the conclusion on the basis of medical report that ailment with which the accused is suffering is such that it cannot be properly treated while accused is in jail.

Muhammad Arshad v. The State and another 1997 SCMR 1275; Shahbazuddin Chaudhry v. The State PLD 2004 SC 785; The State v. Haji Kabeer Khan PLD 2005 SC 364 and Ghulam Raza v. Khuda Buksh and another 2005 SCMR 1904 ref.

Muhammad Tariq Nadeem for Petitioner.

Muhammad Sarfraz Khan Khichi, Deputy Prosecutor General with Imam Buksh, S.I. for the State.

2020 M L D 2078

[Lahore]

Before Ch. Mushtaq Ahmad, J

M. JAVED SHAFI and 7 others---Petitioners

Versus

S.H.O. POLICE STATION SHORKOT CITY and 2 others---Respondents

Writ Petition No.40320 of 2019, decided on 10th December, 2019.

Penal Code (XLV of 1860)---

----S. 406---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), Ss. 7 & 20---Constitutional petition---Quashing of FIR---Criminal breach of trust---Jurisdiction of Banking Court---Scope Petitioners sought quashing of FIR registered against them under S.406, P.P.C.---Sugar bags were allegedly removed by petitioners lying in the godown of sugar mills of which they were directors---Said sugar bags were in the control of the Bank as the same were pledged against loan taken by petitioner's mills---Complainant's company was deputed by Bank for security of sugar bas through an agreement---Registration of FIR by police was unwarranted and uncalled for as the alleged offence could only be tried by the Banking Court constituted under the provisions of Financial Institutions (Recovery of Finances) Ordinance, 2001---Action could only be taken by an investigating agency nominated by Federal Government on a complaint in writing moved by authorised officer of a financial institution---Local police had no authority to register a criminal case in the matters between a Bank and its customers---Constitutional petition was allowed, in circumstances.

Muhammad Asif Nawaz v. Learned Additional Sessions Judge/Justice of Peace Multan and 2 otehrs 2014 PCr.LJ 1 = 2014 CLD 45; Murshid Ali and 4 others v. SHO Police Station Saddar, Khanwwal and another 2011 CLD 1539 and The State through Prosecutor general Punjab Lahore v Karam Dad Bhatti 2019 PCr.LJ 902 ref.

Syed Mushahid Shah v. Federal Investment Agency and others 2017 SCMR 1218 rel.

M. Imran Malik, Aakif Majeed Batt and Asim Tufail Farooq for Petitioners.

Zaman Khan Vardag, Additional Advocate-Genral with M. Afzal SI.

2020 M L D 14

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali, J

NAWAB SHER and another---Petitioners

Versus

ISMAEEL---Respondent

Civil Revisions Nos. 595-M and 597-M of 2011, decided on 30th January, 2019.

(a) Malicious prosecution---

----Damages, recovery of---Essential elements---Criminal case was got registered against the plaintiffs wherein they were acquitted on the basis of concessional statement of defendant---Plaintiffs filed suit for recovery of damages on the basis of malicious prosecution which was decreed by the Trial Court but Appellate Court dismissed the same---Validity---Every criminal case which ended in acquittal of accused would not per se entitle the accused to file a suit for compensation---Remedy of malicious prosecution was available to one who had been wrongly involved/implicated in criminal prosecution---Abuse of civil proceedings might also afford the right to respondent to bring an action for malicious prosecution---Plaintiff who had brought the claim for compensation on account of malicious prosecution should establish the connection between reasonable and probable cause and the malice---Mere fact that plaintiff had been prosecuted and acquitted would not suffice for the purpose of bringing an action for malicious prosecution so long as he had proved absence of reasonable and probable cause and malice---Plaintiff for an action for malicious prosecution to succeed must prove that he had suffered damages/loss as a result of wrongful prosecution---Plaintiffs had been attributed specific role for abduction in the present case and they were found guilty of the offence---Plaintiffs were acquitted due to concessional statements of defendant---Nothing was on record that criminal cases were initiated without any probable cause or same were based on malice---Plaintiffs had failed to establish their case for award of compensation---Revision was dismissed in circumstances.

Johnson and wife v. Browning (1704) 6 Mod. 216; Anwarzeb v. Mushtaq Ahmed 2015 MLD 601; Ghulam Hussain and another v. Muhammad Rafique 2015 MLD 1583; Gregory v. Portsmouth Council (2001) 1 ALL ER 560; Dr. Abdul Qadir Akhund v. Shahila Perveen 2017 MLD 666; Paton v. Rose (Dist Col App) 205 A2d 609; Blenn v. Morrill, 90 NH 109, 5 A2d 42; McDonald v. Carper, 252 NC 29, 112 SE2d 741; Melvin v. Pence 76 App DC 154, 130 F2d, 423, 143 ALR 149; Rosario v. Amalgamated Ladies 'Garment Cutters' Union Local 10, I.L.G.W.U., C.A.N.Y., 605 F2d 1228; National Surety Co. v. Page C.C.A Va, 58 F.2d 145; Laney v. Glidden Co., 194 So. 849, 239, Ala. 396; Summit Bank Ltd. v. Mohammad Ramzan 2016 MLD 139; Hicks v. Faulkner (1881) 8 OBD 167; Herniman v. Smith (1938) A.C. 305; Mitchell v. John Heine & Sons Ltd., Supreme Court of New South Wales, 1938, 38 N.S.W.S.R. 466; Willers v. Joyce and another 2016 SCMR 184 (Supreme Court of UK); Salmond on the Law of Torts, 9th Edition, page 658-659; Abdul Shakur v. Lipton & Co. AIR 1924 Lah. 1; Province of East Bengal and others v. S.M. Faruque and others PLD 1959 Dacca 268; Ghulam Nabi Khan v. Azad Government of State of Jammu and Kashmir 1984 CLC 325; Walayat Khan v. Abdul Usman 1990 CLC 37; Muhammad Aslam v. Muhammad Ibrahim 2000 CLC 154; Nayeb Ali Dafadar v. Abdul Ghani alias Gutu Mia PLD 1969 D 985; Salmond, Jurisprudence, at p. 374 (1966); Baron Parke, Brown v. Hawkes (1891) 2 Q.B. 718; Adams v. Home Owners' Loan Corporation C.C.A.Neb., 107 F.2d 139; Owens v. Kroger Co., 430 So.2d 843; Shepard v. Byrd, D.C.Ga., 581 F.Supp. 1374; Brodrib v. Doberstein, 140 A. 483, 107 Conn. 294; Jamnadas v. Chunni Lal (1920) I.L.R. 45 Boni. 227; Imperial Tobacco Co. v. Bonnon AIR 1928 Cal. 1; Mushoorappa v. Hanumanthappa AIR 1947 Mad. 236; Laxmichand v. Union of India AIR 1955 Nag. 265; Babu Sumat Prasad v. Ram Sarup Sastry AIR 1946 All. 204; Afroz Qureshi v. Muhammad Ikram Siddiqui 1995 CLC 735; Abdul Rauf v. Abdul Razzak PLD 1994 SC 476; Glinski v. McIver [1962] AC 726 at 765; Tempest v. Snowden 1952 I K.B. 130; Abdur Rashid v. State Bank of Pakistan and another PLD 1970 Kar. 344; Fazale Rahim v. Rab Nawaz 1999 SCMR 700; Ishtiaq Ahmed v. Raees Ahmed 1991 CLC 1114; Muhammad Ashraf v. Inayat Ali 1993 CLC 576; Savile v. Robert (1698) 1 Ld. Raym. 374; Ali Mohammed v. Zakir Ali AIR 1931 All. 665; Ismat Ullah Cheema v. Sarfaraz Ahmad and others PLD 2006 L 503 and Muhammad Akram v. Farman Bi PLD 1990 SC 28 rel.

(b) Malicious prosecution---

----Essential elements---Initiation or continuation of lawsuit; lack of probable cause for the lawsuit's initiation; malice; and favorable termination of the original lawsuit.

Black's Law Dictionary; Glinski v. Meiver 1962 A.C. 726, at p. 742; Evans v. Alabama Professional Health Consultants, Inc. 474 So.2d 86; Nagendra Kumar v. Etwari Sahu AIR 1958 Pat. 329; Niaz and others v. Abdul Sattar and others PLD 2006 SC 432; Abdul Majeed Khan v. Tawseen Abdul Haleem and others 2012 CLD 6; Rana Shaukat Ali Khan and others v. Fayyaz Ahmad and others 2017 MLD 120; Marine Management Company v. Government of Pakistan PLD 2000 Kar. 215; Hussain Gul v. Soorat Shah and others 2014 MLD 1008; Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28 and Muhammad Saeed v. Jan Muhammad 12006 YLR 2201 rel.

(c) Malicious prosecution---

----Meaning; Institution of a criminal or civil proceeding for an improper purpose and without probable cause; institution of any action or proceeding, either civil or criminal, against another maliciously and without probable cause.

Black's Law Dictionary; Ballentine's Law Dictionary; Muhammad Yousaf v. Abdul Qayyum PLD 2016 SC 478; Mehrban v. Ghulam Hassan 2016 CLC 1585 and Israr Ali v. Mst. Ahmedi Begum and others 1990 MLD 1834 rel.

Sardar Zulfiqar for Petitioners.

Safdar Naseer for Respondent.

2020 M L D 49

[Peshawar]

Before Lal Jan Khattak and Muhammad Ibrahim Khan, JJ

Mst. FARZANA---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.84-A of 2017, decided on 31st July, 2019.

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

----Ss. 9 & 21---Possession of narcotics---Conscious knowledge of possession of narcotics---Appreciation of evidence---Failure of complainant (Seizing Officer) to obtain search warrant despite prior knowledge of offence---Effect---Benefit of doubt---Prosecution case was that the accused was sitting in a car with three co-accused persons and on search of car two plastic bags containing charas were found lying on the floor of the rear seat---No evidence was available on record to show as to who had sighted the vehicle; who had searched it; who had recovered the contraband from the floor of the rear seat; who had opened the packets of the contraband and that the seizing officer had weighed each packet of the recovered charas separately---Complainant had received information about the narcotics four hours prior to the raid with the knowledge that the culprits would be four persons including a female, but even then neither he obtained permission from the court nor associated a lady constable with him---Prosecution had failed to show that the accused had a conscious knowledge regarding the charas---Prosecution had failed to establish and prove its case against the accused beyond any shadow of doubt, in circumstances---Appeal was accepted and the impugned judgment to the extent of appellant was set aside. (b) Control of Narcotic Substances Act (XXV of 1997)---

----S. 9---Possession of narcotics---Scope---When more than one packets of contraband are recovered, prosecution must weigh each packet independently. (c) Control of Narcotic Substances Act (XXV of 1997)---

----S. 9---Possession of narcotics---Conscious knowledge of accused---Scope---Mere presence of accused in a vehicle where from some contraband is recovered would not be enough to hold the seater liable for conviction unless it is shown by the prosecution through reliable evidence that the accused had conscious knowledge qua the activity of offence.

(d) Criminal trial---

----Duty of prosecution---Scope---Prosecution, in order to bring home the guilt to an accused, is bound to prove its case through worthy, reliable and confidence inspiring evidence.

Ms. Zohra Durrani for Appellant.

Arshad Ahmad Khan, A.A.G. for the State.

2020 M L D 75

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali, J

MUHAMMAD HANIF through legal heirs---Petitioners

Versus

WATAN NABI and 33 others---Respondents

C.R. No. 414-M of 2013 with C.M. 619 of 2013(N), decided on 27th February, 2019.

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

----Ss. 42 & 54---Suit for declaration and permanent injunction---Settlement Officer passed the order that the suit land be entered in the name of defendants in the column of ownership of Missal-e-Haqiyat---Contention of plaintiffs was that the suit property was reserved for mosque of the village---Suit was decreed concurrently---Validity---Defendants were in permissive possession of suit property in lieu of rendering service of Imamat of the mosque---Defendants had failed to establish that suit land was their ancestral Serai---Revision was dismissed in circumstances.

Sajawal Shah and another v. Syed Rahim Shah and others PLD 1995 SC 325 rel.

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

----Ss.42 & 54--- Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967), Preamble---Suit for declaration---Question was whether suit property was assigned as Serai---Meaning and import of assignment of land as Serai.

The word Serai has neither been defined in the Land Revenue Act, 1967 nor in any other legal instrument. It is used customary in relation to land/property which has been reserved by the village proprietary body from their common property for Imam of a mosque or any other religious purpose or for any other person or class of persons (blacksmith or carpenter etc) in lieu of his/their services to the village proprietary body.

Term Serai cannot be given any definite and uniform meaning. The rights and obligations of the person or class of persons in possession of the property as Seraikhor over the property (Serai) shall be determined keeping in view the relevant entries in the revenue record, Wajib-ul-Arz or any other instrument or other evidence establishing the custom relating to the assignment of the Serai/property.

It was a custom in the Valley of Swat even before its merger to Islamic Republic of Pakistan that the proprietary body/a clan/tribe would give certain land to the religious family with full title and ownership which was then called Serai of that religious or other families who had either rendered some services to the proprietary body of clan or because of respect which they were enjoying at the relevant time. Similarly the proprietary body or a clan would reserve a particular land as wakf for a Masjid and the Imam of the Masjid would enjoy the possession or usufruct of the said land in lieu of his services.

Aziz-ur-Rahman v. Atai Khan PLD 1976 Pesh. 60; Muhammad Atiq and others v. Tayabuddin PLD 1998 Pesh. 47; Mian Tayyabuddin v. Muhammad Atiq PLD 2004 SC 321; Hakeem Shah v. Sawab Khan PLD 2002 SC 200; Muhammad Saleem Shah's case PLD 2002 SC 280; Land Ownership in Swat" (page 126); Ownership and Use Pattern Trends in the Communal Lands of Swat Valley" (page 76) and Swat State (1915-1969) page 237 rel.

Mukaram Shah for Petitioners.

Abdul Halim Khan for Respondents.

2020 M L D 153

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad, J

KARAMAT ULLAH---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous (B.A.) No. 493-A of 2019, decided on 16th September, 2019.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 380, 411 & 34---Theft in dwelling house, dishonestly receiving stolen property, common intention---Bail, grant of---Bailable offences---Scope---Accused was charged for committing theft from the shop of complainant---Accused was named in the crime report but the complainant had not disclosed his source of information and satisfaction for charging the accused---Crime was unwitnessed---SIM card of mobile phone and cash amount were handed over to the police by the brother of accused and nothing incriminating was recovered from the possession of accused or at his pointation---Offences with which accused was charged fell within the non-prohibitory clause of S.497, Cr.P.C. and in such like cases grant of bail was a rule, while its refusal was an exception---Bail was granted, in circumstances.

Muhammad Tanveer v. The State PLD 2017 SC 733; Arsalan Masih and others v. The State 2019 SCMR 1152 and Abdul Waheed v. The State and another 2017 YLR Note 5 ref.

Khalid Rehman Qureshi for Petitioner.

Raja Muhammad Zubair, A.A.G. for the State.

Khan Zada Khan for the Complainant.

2020 M L D 238

[Peshawar]

Before Qaiser Rashid Khan, J

DEEDAR GUL and 2 others---Petitioners

Versus

WAZIR GULAM---Respondent

Civil Revision No. 364-P of 2019 with C.M. No.683-P of 2019, decided on 20th May, 2019.

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

----S. 42---Suit for declaration---Benami transaction---Ingredients---Burden of proof---Contention of plaintiffs was that they were owners of suit property and impugned transaction in favour of defendant was Benami---Suit was dismissed concurrently---Validity---Initial burden of proof was on the party who had alleged that the ostensible owner was a Benamidar for him---Weakness in the defence evidence would not relieve plaintiff from discharging the said burden---Burden of proof might shift from one party to the other during the trial of a suit---When burden of proof was shifted from plaintiff to defendant and defendant failed to discharge the same then plaintiff would succeed---Plaintiffs, in the present case, had failed to discharge the initial onus of proof---Courts below had rightly non-suited the plaintiffs, in circumstance---No illegality, irregularity, mis-reading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the Court below---Revision was dismissed in limine accordingly.

Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 and Iqbal Ahmed Turabi and others v. The State PLD 2004 SC 830 rel.

Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703; Iqbal Ahmed Turabi and others v. The State PLD 2004 SC 830 and Abdul Majeed and others v. Amir Muhammad and others 2005 SCMR 577 rel.

(b) Benami transaction---

----Ingredients---Ingredients of Benami transaction were motive, consideration, possession of property and possession of original documents.

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

----S. 115---Revision---Scope---Concurrent findings recorded by the Courts below could not be set at naught by the revisional Court unless it was proved that same were patently illegal, based on mis-reading, non-reading of evidence, erroneous, fanciful or had resulted in miscarriage of justice.

Nazir Ahmed through L.Rs. v. Umra and others 2002 SCMR 1114 and Shafi Muhammad and others v. Khanzada Gul and others 2007 SCMR 368 rel.

2020 M L D 272

[Peshawar (Abbotabad Bench)]

Before Ijaz Anwar, J

BARA KHAN---Petitioner

Versus

RASHEEDA ASHRAF---Respondent

C. R. No.433-A of 2011, decided on 14th October, 2019.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talb-i-Ishhad, performance of---Requirements---Trial Court dismissed the suit but Appellate Court decreed the same---Appellate Court had reversed the findings of Trial Court on the point of performance of Talb-i-Muwathibat without discussing as to whether plaintiff had performed Talb-i-Ishhad---Validity---Pre-emptor was bound to send a notice in writing attested by two truthful witnesses followed by a rider i.e. under registered cover acknowledgement due---Pre-emptor had not produced postman who allegedly delivered the registered notice of Talb-i-Ishhad, the acknowledgment due card was not brought on record---Scribe of notice of Talb-i-Ishhad had not been produced to confirm the existence of said notice---Plaintiff, in circumstances, had failed to prove the service of notice of Talb-i-Ishhad and its delivery on the vendee---Appellate Court had acted illegally and with material irregularity while passing the impugned judgment and decree, in circumstances---Pre-emptor had failed to prove the service of notice of Talb-i-Ishhad on the defendant and suit was liable to be dismissed on that score alone---Impugned judgment and decree passed by the Appellate Court were set aside---Revision was allowed, in circumstances.

Ali Ahmed v. Rana Muhammad Akram 2006 CLC 537 and Mir Sahib Khan v. Ghazi Muhammad PLD 2014 Pesh. 29 ref.

PLD 2003 Pesh. 179; Mst. Bhagay v. Mst. Fatima Bibi PLD 2004 Lah. 12; Muhammad Bashir v. Abbas Ali Shah 2007 SCMR 1105; Bashir Ahmed v. Ghulam Rasool 2011 SCMR 762; Zilla Muhammad v. Qamar Ali Khan 2016 SCMR 184 and Basharat Ali Khan v. Muhammad Akbar 2017 SCMR 309 rel.

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

----S. 115---Revision---Scope---Revisional Court in absence of any cross revision or objection had powers to examine the propriety and correctness of judgment of Courts below and pass such orders as it deemed fit in the facts and circumstances of the case.

Ali Bahadur v. Nazir Begum and others PLD 2005 Lah. 218; Mst. Zarina Begum v. Major Aziz-ul-Haq 2006 CLC 1525 and Muhammad Nawaz v. Mst. Ahmed Bibi and 3 others 1995 SCMR 266 rel.

Muhammad Saleem Awan for Petitioner.

Sajjad Ahmed Abbasi for Respondent.

2020 M L D 302

[Peshawar (D.I. Khan Bench)]

Before Muhammad Nasir Mahfooz, J

Mst. ANWARI BIBI---Petitioner

Versus

HIDAYAT ULLAH KHAN and others---Respondents

Writ Petition No. 514-D of 2018 with C. Miscellaneous No. 575-D of 2018, decided on 5th September, 2018.

Guardians and Wards Act (VIII of 1890)---

----S. 25---Custody of minor---Welfare of minor---Petitioner being maternal grandmother of minor grand-daughter filed an application for her custody which was dismissed and she was directed to handover minor to her father---Validity---Minor was 7/8 years of age and still living with her grandmother---Minor even did not know her father and brother---Mother of minor was divorced when minor was one and half month old and she was born in her grandparent's house---Father of minor never applied for her custody nor maintained her---Respondent father had contracted second marriage and he never cared to get acquainted with his minor daughter---Welfare of minor was the supreme consideration while deciding application for custody---Mother of minor had not claimed custody and maternal grandmother had preferential right as compared to father---Custody of minor could not be handed over to her father as she had not recognized him---Father was bound to provide maintenance to the minor even if she was residing with her grandparents---Courts below had committed material irregularity, mis-reading and non-reading of evidence while passing the impugned judgments and decrees---Welfare of minor daughter was with the maternal grandmother in preference to her father---Impugned judgments and decrees were set aside---Constitutional petition was allowed, in circumstances.

2007 MLD 1089; 2011 CLC 1912; Muhammad Shabbir and another v. Additional District Judge West, Islamabad and 2 others 2018 CLC 452; Mst. Zainab Bibi v. Zaffar Iqbal 2012 MLD 762 and Nasir Raza v. Additional District Judge, Jhelum and another 2018 SCMR 590 ref.

Muhammad Yousaf v. Mst. Anis Bibi and 2 others PLD 1998 Lah. 67; Abdul Razzaque and 3 others v. Dr. Rehana Shaheen and another PLD 2005 Kar. 610; Mst. Farah Iqbal v. Muhammad Anwar and 2 others PLD 2003 Quetta 131; Mst. Gulzar Bibi v. Rafaqat Ali Shah and another PLD 2000 Pesh. 23; Mst. Nighat Firdous v. Khadim Hussain 1998 SCMR 1593; Mrs. Seema Chaudhry and another v. Ahsan Ashraf Sheikh and others PLD 2003 SC 877; Sardar Hussain and others v. Mst. Parveen Umer and others PLD 2004 SC 347; Malik Muhammad Hussain and another v. Malik Ghulam Qadir and others 2004 SCMR 1735; Mehmood Akhtar v. District Judge, Attock and 2 others 2004 SCMR 1839 and Sajjad Ahmad Rana and others v. Ms. Louise Annee Fairley and others PLD 2007 SC 292 rel.

Muhammad Saleem Marwat for Petitioner.

Rizwan Ullah Khan for Respondent.

2020 M L D 352

[Peshawar]

Before Waqar Ahmad Seth, C.J. and Ahmad Ali, J

KHURSHED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 825-P of 2017, decided on 17th September, 2019.

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

----S. 9(c)---Possession of narcotics---Reappraisal of evidence---Benefit of doubt---Safe custody of contraband substance by police and transmission of samples to the Chemical Examiner not established---Effect---Police raided a rented house on information that accused/appellant, a proclaimed offender, in a murder case, was present in the said house, he was arrested---Twenty four packets charas, each packet weighing 1000 grams, total 24 kgs charas, were recovered from the motorbike parked in the house---No such FIR was available on file to affirm that the accused was a proclaimed offender---Nothing was available on record that the house was rented to accused-appellant and motorbike in question was accused's property---Prosecution had not established any connection of the accused with the alleged recovery of contraband effected from motorbike parked in the house---Warrant of arrest of the competent court, if any, had not been brought on record by prosecution---Complainant/Seizing Officer had though deposed in his court's statement that he took into possession the contraband, but it was not clear from his statement as to whom he handed over the remaining contraband except the stance that complainant had taken the accused and other articles to the police station---Complainant had further deposed that he prepared the samples for Forensic Science Laboratory but from his statement it was not clear as to whom he handed over the samples for taking to Forensic Science Laboratory---Other prosecution witness had narrated that the samples were sent to Forensic Science Laboratory by the Moharrir on 30.11.2016, but without disclosing the name of official who took the same to Forensic Science Laboratory---Forensic Science Laboratory report indeed showed that Constable took the samples to Forensic Science Laboratory on 02.12.2016---Both the said important witnesses being associated with the recovered contraband at the relevant time were not produced before the Trial Court by the prosecution---Adverse inference under Art. 129(g) of Qanun-e-Shahadat, 1984 could be drawn---Nothing was available on record that samples and case property were ever kept in Malkhana---Safe custody of the samples and case property was not proved, in circumstances---Record was silent as to where the samples and case property remained from 28.11.2016 to 02.12.2016, when it was received in Forensic Science Laboratory with a considerable and un-explained delay of 4/5 days---Prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

2019 SCMR 608; 2018 SCMR 2039; 2019 SCMR 903; Ikramullah and others v. The State 2015 SCMR 1002 and 2012 SCMR 577 rel.

(b) Criminal trial---

----Benefit of doubt---Principle---Slightest doubt in prosecution case would be sufficient to grant acquittal to accused.

Noor Alam Khan for Appellant.

Muhammad Riaz Khan, A.A.G. for the State.

2020 M L D 448

[Peshawar]

Before Qalandar Ali Khan and Muhammad Ayub Khan, JJ

MUHAMMAD SADEEQ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 98-P of 2015, decided on 1st October, 2018.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Contradictory statements---Safe custody---Non-examination of sample-bearer---Effect---Allegation against accused was that he was driving the vehicle wherein secret cavities were specially designed for concealment of narcotics and police recovered 150 packets containing charas, which turned out to be 150 kg---Each prosecution witness had contradicted each other on various points---Seizing Officer had stated that case property was lying in between the driver's seat and the rear body portion of the vehicle---Marginal witness to the recovery memo had stated that the contraband was recovered from rear portion of the vehicle and that the cavity was not behind the driver's seat---Seizing officer had stated that at the time of nakabandi they had no official vehicle whereas a prosecution witness had contradicted such stance---Seizing officer had revealed that he had used his own scale to weigh the material whereas marginal witness had stated that the scale was procured from a nearby shop---Witnesses had contradicted each other to the effect that search was conducted on the information of informer---Seizing officer had shown his inability to tell as to whether there was any writing over the case property or not but the case property had writing on it---Investigating Officer had stated that no shop was available in the vicinity therefore, he had not shown the same in the site plan---Seizing officer had admitted that during search he had not taken into possession driving licence, keys of the vehicle or any other document showing ownership of the vehicle by the accused---Accused was not challaned for driving without licence---Prosecution had not tried to ascertain about the owner of the vehicle---Seizing officer had stated that the charas and case property was handed over to the Investigating Officer on the spot whereas Investigating Officer had contradicted such stance---Prosecution witness had stated that the parcels, vehicle and the case property were handed over to him by the complainant in the police station however, no receipt or abstract from the Register was brought on record---Constable, who was shown in the Forensic Science Laboratory report to have brought the samples, was not examined by the prosecution---Samples of the recovered stuff were received by the Laboratory after three days of its recovery, however, the prosecution witnesses did not bring on record the trail of samples suggesting that during this period the same was kept in safe custody---Trial Court had not analyzed the prosecution evidence in its true perspective---High Court accepted the appeal and set aside the impugned judgment.

(b) Criminal trial---

----Benefit of doubt---Scope---Single doubt in the prosecution case is sufficient to record acquittal of accused.

Noor Alam Khan for Appellant.

Muhammad Riaz Khan for the State.

2020 M L D 514

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali, J

SHER ALAM and others---Petitioners

Versus

MUHAMMAD HAROON KHAN and others---Respondents

Civil Revisions Nos. 227-P and 129-P of 2009, decided on 11th October, 2018.

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

----S. 42---Suit for declaration without seeking relief for possession---Maintainability---Contention of plaintiffs was that they were owners of half share in the suit property---Suit was decreed concurrently---Validity---Suit for mere declaration without a consequential relief for possession was fatal to the proceedings---Suit property, in the present case, was a mountain which was not in the direct possession of any party and was being used only as a pasture---Plaintiffs had brought claim for cancellation of deeds, declaration of their title and injunction to restrain the defendants from interfering or obstructing from utilizing the said mountain---Plaintiffs, in circumstances, were not bound to seek relief for possession in the present case---Findings recorded by the Courts below were based on proper appreciation of evidence---Revision was dismissed, in circumstances.

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

----S. 115---Revision---Scope---No one could raise a question before revisional forum which had not been raised before lower fora.

Government of West Pakistan (Now Punjab) through Collector Bahawalpur v. Haji Muhammad PLD 1976 SC 469; Hakim Ali v. Muhammad Salim and another 1992 SCMR 46; Mst. Salima Bibi v. Mst. Halima Bibi 1994 SCMR 1858; Binyameen and 3 others v. Chaudhary Hakim and another 1996 SCMR 336 and Muhammad Wali Khan and another v. Gul Sarwar Khan and another PLD 2010 SC 965 rel.

(c) Pleadings---

----One could not be allowed to prove his case beyond his pleadings.

Altaf Ahmad and Sardar Abdul Hakeem Tajik for Petitioners (in C.R. No. 227-P of 2009).

Zia-ur-Rahman for Respondents Nos. 1 to 5 (in C.R. No. 227-P of 2009).

Hazrat Rehman for Respondents Nos. 9, 10 and 12 (in C.R. No. 227-P of 2009).

Muhammad Yar Malezai for Respondents Nos. 19, 20, 24 to 33 and LRs of the Respondent No. 18 (in C.R. No. 227-P of 2009).

Hazrat Rehman and Muhammad Yar Malezai for Petitioners (in C.R. No.129-P of 2009).

Sardar Abdul Hakeem Tajik for Respondents Nos. 23 to 42 (in C.R. No.129-P of 2009).

Zia-ur-Rahman and Syed Abdul Haq for the Respondents Nos.52 to 56/i. (in C.R. No.129-P of 2009).

Date of hearing: 11th October, 2018.

2020 M L D 554

[Peshawar]

Before Ahmad Ali, J

ISLAM GUL---Petitioner

Versus

Mst. NALEEM and 2 others---Respondents

Writ Petition No .627-P of 2017 with C.Ms. Nos.119, 1208 and 1209-P of 2017 and C.Ms. Nos.259 and 260 of 2018, decided on 2nd September, 2019.

(a) Family Courts Act (XXXV of 1964)---

----S. 5, Sched. & S. 7(2)---Suit for dissolution of marriage and recovery of dowry articles, dower and maintenance allowance---Khula, announcement of---Procedure---Additional evidence, production of---Scope---Family Court decreed the suit against which appeal was filed wherein appellant moved an application for additional evidence but same was dismissed---Validity---Wife at her own could not announce or award khula---Family Court could dissolve marriage on the basis of khula on the request of wife---Family Court could not allow additional evidence or add names of witnesses in the schedule of witnesses---Parties with the permission of Court could call any witness at any later stage if Court considered such evidence expedient in the interest of justice---Family Court or Appellate Court could not re-open schedule of witnesses submitted by the parties---Defendant (husband) remained silent during the trial of case despite ample opportunity to produce any witness in his defence---Defendant had neglected his wife and had entered into second marriage---Father of plaintiff was businessman and delivery of dowry articles as per list annexed with the plaint could not be denied---Nothing was on record that plaintiff had taken back the dowry articles---Courts below had rightly appreciated the evidence produced by the parties and arrived at proper conclusions while passing the impugned judgments and decrees---No jurisdictional error had been pointed out in the impugned judgments and decrees passed by the Courts below---Constitutional petition was dismissed, in circumstances.

Sajid Ullah v. Mst. Shakeela Naz PLD 2016 Pesh. 1; Muhammad Akram v. Mst. Shakeela Bibi and others 2003 CLC 1787; Muhammad Azeem v. Nasreen Bibi 2018 YLR 761; Sher Baz Khan and others PLD 2003 SC 849; Faiz Muhammad through legal representatives and others v. Mst. Khurshid Bibi PLD 2009 Lah. 41 and Mirza Arshad Baig v. Additional District Judge, Multan and others 2005 SCMR 1740 rel.

(b) Family Courts Act (XXXV of 1964)---

----S. 7(2)---Additional evidence, production of---Scope---Family Court could not allow additional evidence or add names of witnesses in the schedule of witnesses---Parties with the permission of Family Court could call any witness at any later stage if Court considered such evidence expedient in the interest of justice---Family Court or Appellate Court could not re-open the schedule of witnesses submitted by the parties.

Muhammad Siddique Haider Qureshi for Petitioner.

Shahab Ullah Khan for Respondents.

2020 M L D 629

[Peshawar]

Before Waqar Ahmad Seth, C.J. and Ishtiaq Ibrahim, J

DAD MIR---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos.496-P of 2015 and 272-P of 2018 decided on 13th November, 2018.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Sentence, reduction in---Discrepancy in weight of narcotic---Mitigating circumstances---Scope---Prosecution case against accused was that he, along with another was travelling in a vehicle which was loaded with marble scrap under which 100 packets of charas were discovered by the police---Each packet weighed one kilogram, and five grams from each packet was separated and sealed---Case of prosecution with regard to separation of samples from the contraband and its weight was discrepant---Investigating Officer admitted that the weight of the contraband after extraction of samples was stated to be 9500 grams---Complainant admitted in his cross-examination that he did not open all the packets for separation of samples; that each packet contained one slab and that since sufficient time had lapsed when the contraband was seized, therefore, he did not remember that any packet contained more than one slab---Marginal witness to the recovery memo stated that the weight of remaining stuff was 9500 grams---Case against accused, the driver of the vehicle, was proved beyond any shadow of doubt---Trial Court had rightly convicted the accused, however, as to whether the contraband was 100 kgs or 9500 grams and statement of the complainant regarding separation of samples was a mitigating circumstance---High Court maintained the conviction and reduced the sentence from imprisonment for life to 7 years---Appeal to the extent of accused was dismissed.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Conscious knowledge of accused---Scope---Prosecution case against accused was that he along with another was travelling in a vehicle which was loaded with marble scrap under which 100 packets of charas were discovered by the police---Prosecution had failed to prove any link of the accused with the driver, as he was resident of foreign country whereas the driver was resident of Pakistan---Accused, in his statement under S. 342, Cr.P.C., had stated that he was waiting for public transport, in the meanwhile two co-accused persons came over there and offered him lift on his request and accordingly he had seated in the said vehicle---No recovery was effected from the direct possession of the accused---Contraband was recovered from beneath the marble pieces loaded in the vehicle---Prosecution had failed to establish that the accused was having knowledge of narcotics or the same was exposed to him---Prosecution had simply proved presence of accused in the vehicle and mere presence of accused in the vehicle would not involve him in the case---Prosecution had failed to prove its case against the accused---Appeal of the accused was accepted and impugned judgment to his extent was set aside.

Qaisarullah v. State 2009 SCMR 579 rel.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Police witnesses---Scope---Police witnesses are as good witnesses as anyone else but in cases of narcotics registered under S. 9(c), Control of Narcotic Substances Act, 1997 where life imprisonment or death sentence can be awarded to a person accused of such an offence, the prosecution is duty bound to bring on record consistent, straightforward and clear evidence.

Noor Alam Khan for Appellant.

Mujahid Ali Khan, Addl. A.G. for the State.

2020 M L D 703

[Peshawar]

Before Qaiser Rashid Khan and Muhammad Naeem Anwar, JJ

SHAHBAZ GUL SHINWARI---Petitioner

Versus

TEHSIL MUNICIPAL OFFICER, KOHAT, K.P. and 5 others---Respondents

Writ Petition No. 5796-P of 2019 with I.R., decided on 7th November, 2019.

Khyber Pakhtunkhwa Local Government Ordinance (XIV of 2001)---

----Ss. 54, 195 & Sched. VI---Khyber Pakhtunkhwa Local Government Act (XXVIII of 2013), Ss. 64 & 113---Constitution of Pakistan, Art.18---Privately owned market---Byelaws, violation of---Petitioner was aggrieved of cancellation of licence for construction of private fruit and vegetable market due to non-fulfilment of conditions---Validity---Petitioner had not fulfilled basic conditions as per Tehsil Municipal Administration Market Byelaws and did not fulfil conditions mentioned in licence except NOCs etc., issued in his favour by various authorities---Petitioner, on one hand, was bent upon to run his fruit and vegetable market at all costs at the site and on the other, he was found to be flouting not only directions of authorities but also of court with a degree of impunity---High Court declined to interfere in orders passed by authorities as petitioner had not fulfilled requirements of Tehsil Municipal Administration Market Byelaws for issuance of licence for which time and again, he was not only directed by court but also the authorities---Constitutional petition was dismissed in circumstances.

2011 SCMR 80; PLD 2006 Kar. 479; PLD 2004 Lah. 376; PLD 2004 SC 271; PLD 1997 SC 342; 2002 PLD SC 452; PLD 2008 SC 135 and PLD 2016 Pesh. 164 ref.

Zia-ur-Rehman Tajik and Rizwan Faiz Muhammad for Petitioner.

2020 M L D 727

[Peshawar (Mingora Bench)]

Before Wiqar Ahmad, J

MUHAMMAD RASOOL KHAN and others---Petitioners

Versus

JAFAR KHAN and others---Respondents

Civil Revisions Nos. 1008-P with C.M. No.1070 and 1565-P with C.M. No.1585 of 2010, decided on 10th October, 2019.

Khyber Pakhtunkhwa Forest Ordinance (XIX of 2002)---

----Ss. 5, 6, 7 & 92---Martial Law Regulation [CMLA's] No. 122, Para. 7---Share of royalty of forest---Defendants were aggrieved of judgments and decrees passed by two courts below on grounds that plaintiffs could not prove their ownership of village and that revisional jurisdiction was barred by law---Validity---Evidence produced bore testimony to basic fact that plaintiffs were original owners of village in question and their oral evidence produced in such respect could not be shattered---Defendants in their evidence largely admitted that plaintiffs were members of tribes who were original owners of village---Defendants neither gave in their written statements details as to from where entire tribe of plaintiffs migrated and when they inhabited village nor they led any evidence in respect of dilating upon such details---When plaintiffs were found to be original owners of village, they were naturally entitled to their proportionate shares in royalty of forest of village---Two courts below concurrently held plaintiffs to be ancestral owners of village and entitled to royalty of forest and such findings were based on proper appreciation of evidence---High Court declined to interfere in concurrent findings of facts of courts below in respect of facts in issue---Khyber Pakhtunkhwa Forest Ordinance, 2002 was otherwise not applicable to the case and same was left to be adjudicated upon in other appropriate proceedings when such question was directly required to be answered and bar contained in Para 7 of Martial Law Regulation No. 122 was not applicable in the case---Revision was dismissed, in circumstances.

1994 SCMR 818; 2010 SCMR 5; 2000 CLC 567; 2008 CLC 1; 2015 CLC 560; Provincial Government of NWFP v. Mohammad Raziq and 13 others 2017 CLC 908 and Muhammad Ashraf and others v. United Bank Limited and others 2019 SCMR 1004 rel.

Naveed Maqsood Sethi for Petitioners.

Abdul Halim Khan, Muhammad Yar Melezai, Sardar Zulfiqar and Haq Nawaz, Asstt. Advocate General for Respondents.

Date of hearing: 10th October, 2019.

CONSOLIDATED/JUDGMENT

WIQAR AHMAD, J.---My this order is directed to dispose of Civil Revision No. 1008-P of 2010 as well as connected Civil Revision No. 1565-P of 2010 as both these petitions out of the same impugned judgments and decrees of the learned two Courts below.

1. The plaintiffs had instituted a suit in representative capacity against defendants for declaration of their rights along with other residents of village Baghro District Dir to the effect that they along with the others inhabitants of the village Baghro had been the original owners of property in the said Mauza and therefore entitled to 1/3rd shares in the Royalty of the produce of forests known as Shalkho Tabai, Tabar Lusto and Zulamkot comprising of lot numbers 331/m, 422/m, 423/m and 424/m of forest compartments Nos. 14, 18, 26, 27(i), 27(ii), 28(ii), 29(i) and 29 (ii) situated within the boundaries of Mauza Baghro and that defendants Nos. 1 to 9 were not entitled to enter into a compromise with defendants Nos. 10 and 11, predecessor-in-interest of defendants Nos. 12 to 15 and predecessor-in-interest of defendants Nos. 41 and 42 for withdrawing the amount of Royalty on behalf of the plaintiffs and other co-owners of village Baghro and authorization granted to defendants Nos. 10 to 15 (hereinafter referred as the contractors) by defendants Nos. 16 to 40 and predecessor-in-interest of defendants Nos.41 and 42 beyond their entitlement and on behalf of the plaintiffs and other co-owners of the Mauza was without due authorization, illegal and ineffective upon their rights. In prayer "Bay" the plaintiffs have prayed for perpetual injunction for preventing payment of their shares of Royalty to anyone else and in prayer "Jim" mandatory injunction has been sought to the effect of directing respondents Nos. 1 to 9 to ensure return of the amount of Royalty received by defendants Nos. 10, 11 and predecessor-in-interest of defendants Nos. 12 to 15. In prayer "Daal" the plaintiffs have prayed for cancellation of the impugned agreements while in prayer "Ray", prayer for recovery of Rs. 20,000/- or whatever amount of Royalty was found to have been entitlement of the plaintiffs.

2. The plaintiffs have stated in their plaint that village Baghro was being inhibited by the people from the castes of Utmankhel, Atrafi and Kalootkhel, who had been the original owners of residential and agriculture properties in the village and co-owners to the extent of rights of Royalty payable from the produce of forests described above. That a few days before the institution of the plaint, the plaintiffs came to know that defendants Nos. 16 to 40 and predecessor-in-interest of defendants Nos. 41 and 42 by pretending themselves to be elders of the village Baghro had contracted with defendants Nos. 10, 11 and predecessor-in-interest of defendants Nos. 12 to 15 for receipt of Royalty, which rights had been sold to the latter group by the former without any authorization from the plaintiffs as well as other inhabitants of the village Baghro. In pursuance to the said unlawful agreements, official respondents Nos. 3 to 9 were stated to have identified the trees ripe for cutting by marking them and thereby authorizing the contractors for cutting the trees and receipt of the amount of Royalty on behalf of all the inhabitants of village Baghro on the dint of allegedly executed unlawful agreements.

3. Defendants were summoned, they have filed their separate written statements. Out of the divergent pleadings of the parties, issues were framed thereafter. Evidence was led by the parties and on conclusion of the proceedings in the case, suit was decreed in favour of the plaintiffs by the learned Civil Court vide judgment and decree dated 19.02.2009. Against the said judgment, three civil appeals were filed before the learned appellate Court, which were also dismissed. Both the judgments were thereafter impugned by the petitioners by filing civil revisions No. 1008-P and 1565-P of 2010.

4. Learned counsel for the petitioners (contractors) reiterated the facts of the case and thereafter submitted that the jurisdiction of this Court is barred by section 92 of the Forest Ordinance, 2002 (hereinafter referred as "Ordinance"). He further contended that the plaintiffs in the suit had failed to prove themselves as original owners of Mauza Baghro and therefore they had no entitlement in the amount of Royalty and the two Courts had wrongly granted judgments and decrees to the plaintiffs.

5. Learned counsel for the respondents Nos. 42 and 43, who were defendants Nos. 41 and 42 in the suit submitted that the property had been declared to be the ownership of Muhammad Shah Khan of Haya Serai in the report of "Dir-Swat Land Disputes Enquiry Commission" (hereinafter referred to as "Land Commission") and that jurisdiction of the civil Court is barred by Para No. 7 of the Martial Law Regulation No.

6. He further stated that the property was in-fact exclusive ownership of Muhammad Shah Khan of Haya Serai, predecessor-in-interest of the defendants Nos. 41 and 42 and that the plaintiffs had got no right in the same.

7. The learned counsel for the respondents Nos. 1 to 6 submitted that through cogent and confidence inspiring evidence the plaintiffs had proved themselves to be the original owners of Mauza Baghro and thereby entitled to the amount of Royalty to the extent of their proportional shares. He placed reliance on the judgments reported as 1994 SCMR 818, 2010 SCMR 5, 2000 CLC 567, 2008 CLC 1 and 2015 CLC 560 and contended that the question of facts had concurrently been settled by the learned two Courts below which were not open to interference of this Court in revisional jurisdiction as the petitioners could not show any illegality or perversity in the findings of the two Courts. He further added that the Forest Ordinance was extended to Malakand Division on 16.04.2009 by putting it in the Schedule of Shariah Nizam-e-Adl Regulation, 2009 at serial No. 53. He also contended that suit had been filed on 02.05.2001 and decided by the Civil Court on 19.02.2009 before the extension of the Ordinance to the Provincially Administered Tribal Areas (PATA) of Malakand Division. He further submitted that the Ordinance did not have any retrospective effect, therefore, same would not effect the decision rendered in the instant suit. He also asserted that the Ordinance only bars those suits where a person claims right of ownership in a forest and disputes the rights of the government involved in the same and in this respect he relied upon the provisions of section 5, 6 and 7 of the Ordinance.

8. The learned counsel for respondents Nos. 17 to 22, 23 to 25 and 31 to 33 also opposed the revision petitions and submitted that the petitioners have been original owners of the property in village Baghro and had been entitled to their proportional shares in the produce of forests along with his clients.

9. The learned Astt: A.G. stated that the dispute relates to payment of Royalty inter-se between the parties and that the official respondents have got no interests in the case, therefore, he would neither support nor oppose the civil revisions.

10. I have heard arguments of the learned counsel for the parties and perused the record.

11. In order to prove their case the plaintiffs have produced six (6) PWs. PW-1 is the statement of Fazal Wadood, Office Assistant FDC, who produced the relevant record of the harvesting of forest which resulted into dispute between the parties. He was not cross-examined. PW-2 is the statement of Zafar Iqbal Stenographer in the office of DORE/D.C. Dir Upper, who produced the record regarding payment of Royalty and stated that the amount of Royalty was received by Lal Muhammad, Muhammad Rasool, Muhammad Wakil Khan and Muhammad Siraj vide various receipts, copies of which were exhibited as Ex.PW-1/1 to Ex. PW-1/19. The persons named above, were the contractors who had purchased the rights of Royalty from some of the defendants which transactions and the ensuing payment of the Royalty had been impugned by the plaintiffs through the instant suit. In cross-examination this witness stated that payments were made on the basis of power of attorneys. PW-3 is the statement of Gul Rasool plaintiff, who has stated in his statement inter alia that plaintiffs had been the original owners of residential and agricultural properties in the village who had been living therein from time immemorial and has also reasserted the facts as stated in the plaint. He was cross-examined at length but his testimony particularly in respect of the fact that they had been original owners could not be shattered. PW-4 was another witness produced by the plaintiffs who has also supported the stance of the plaintiffs as taken in the plaint. Same was the case with other witnesses of the plaintiffs namely Khaista Garan and Hameedullah.

12. The defendants then produced their evidence. DW-1 in his examination-in-chief has given the following narration in respect of the payment of the amount of Royalty; He has thus admitted that plaintiffs Nos. l and 3 were the nephews of defendant No. 21 while the plaintiff No. 2 is the son of defendant No. 21. He has however not admitted the entitlement of plaintiffs Nos.4, 5 and 6 and stated that they had been residing somewhere else. In cross-examination of the plaintiffs on the said witness he has stated that except Masoom Khan all the defendants belonging to village Baghro had given him power of attorneys. He further added that village Baghro was not only inhabited by three (3) castes but was inhabited by twelve (12) castes. Further ahead he stated that village Baghro was inhabited by about 5000 people from whom he had not been possessing any power of attorney. He has also stated that he could not give measurements of the properties owned by the people from whom he had obtained power of attorney. He has also stated that among the entire caste only defendants Nos. 16 to 40 had sold their rights of Royalty on the contractors. He further stated in his cross-examination that after receipt of the amount of Royalty by the representatives/elders it had further been distributed by them and that Mohtabar Khan and Sadbar Mula were their representatives, who had been appointed by about 500 people, but they had however not been given a power of attorney by all the inhabitants' of village Baghro. One Jafar Khan was examined as DW-2. He admitted in the start of his cross-examination that village Baghro was inhabited by three (3) castes namely Utmankhel, Atrafi and Kalootkhel. He added that there were other castes also who were relatively smaller in number. He has reiterated in his cross-examination further that the elders Sadbar and Hakeem Khan had been given authorization by all the defendants, however, other people of the village had not given them power of attorney. The other witnesses of the defendants had almost given a similar narration of facts.

13. The documentary evidence in the case in hand includes the Notification of the Land Commission, which was produced in evidence as Ex.DW-1/2. The entire Notification No. 10/16-SOTA-II/72-1522 dated 15.09.1972 was indicating the personal property of the Nawab of Dir Sir Shah Jehan Khan. At serial No. 178 of the said Notification the following description of the property was given;

Land situated in ...

(i) Nano Banda;

(ii) Jangal Banda;

(iii) Gera Banda;] excepting land at page No. 5 of the

] File No. 615-DCR]1615-DCR

(iv) Banda Dando; ]

(v) Banda Zulamkot; and

(vi) Banda Tabar Lusto;

(vii) Banda Shalkho;

The said entry simply says that the property was situated in the above-mentioned villages and further description of the land has not been given therein. It is important to be noted that another Notification of the Commission has enumerated the State property and all the forests in Dir and Swat were held to be the property of the provincial government. The said Notification bears number 10/16-SOTA-11/72-1521 dated 15.09.1972. The word "land" should therefore be differentiated from the word "forests" which has nowhere been given to either the Ex-Rulers of the States of Swat or Dir by the Land Commission. Reliance in this respect is placed on the case of "Provincial Govt. of NWFP v. Mohammad Raziq and 13 others" reported as "2017 CLC 908". Land situated in seven (7) villages including the three (3) mentioned in the plaint has been held to be property of the Ruler of Dir but without any specification or measurement of the land. The forest has however never been declared to be the property of late Nawab and same has been the admitted position all along in the pleadings as well as evidence of the parties. Another important document which would also be relevant for the present discourse is the agreement deed entered into between the predecessor-in-interest of defendants Nos. 41 and 42 namely Muhammad Shah Khan of Haya Serai and the other defendants notable among whom was one Sadbar Mula and others. The said deed was produced in evidence as Ex-DW-1/5. In the said agreement the parties have conceded rights of each other on various chunks of land situated in and around of village Baghro as well as regarding the rights of Royalty in the forest. This deed shows that beside the former Rulers of Dir and their successor namely Muhammad Shah Khan of Haya Serai there had been other original owners of land in the village with whom the latter had entered into the compromise wherein through a settlement respective rights of the parties were recognized and thereafter through various power of attorneys the rights of Royalty were sold to the contractors by parties of this agreement, who are defendants in the suit and whose details have also been given in the facts above. It is also relevant to be mentioned here that defendants Nos. 41 and 42 had been proceeded ex-parte in the suit and they had not participated in the proceedings in the two Courts below. They had not even filed their written statement before the original Court, but since their learned counsel appeared before this Court and argued the case, therefore their arguments are addressed here in the interest of justice.

1. The evidence produced in the case bore testimony to the basic fact that the plaintiffs had been the original owners of village Baghro. The oral evidence of the plaintiffs produced in the said respect could not be shattered. The defendants in their evidence have largely admitted that the plaintiffs were members of the Utmankhel and Itrafi tribes who had been the original owners of the village Baghro. The defendants have neither given in their written statements the details that from where the entire tribe of plaintiffs had migrated and when had they inhabited the village Baghro nor had they led any evidence in respect of dilating upon the said details. When the plaintiffs were found to be the original owners of the village Baghro they were naturally entitled to their proportionate shares in the Royalty of the forest of the village Baghro described fully in the plaint. The two Courts below have therefore concurrently held the plaintiffs to be ancestral owners of the village Baghro and entitled to the Royalty in the forest described in the plaint. The said findings of the learned two Courts below were based on proper appreciation of evidence. I do not find any reason for interference in the concurrent findings of facts of the two Courts below in respect of the facts in issue in the suit. The said findings cannot be lightly interfered into by this Court in view of the law laid down by the Hon'ble Supreme Court of Pakistan in the case of "Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others" reported as "1994 SCMR 818" and in the case of "Muhammad Idress and others v. Muhammad Pervaiz and others" reported as "2010 SCMR 5". Reliance in this regard is also placed on the judgments reported as "2015 CLC 560, 2000 CLC 567 and 2008 CLC 1".

2. Now coming to the question of jurisdiction, it is important to be noted that the petitioners had been agitating the bar of jurisdiction contained in section 92 of the Ordinance. The Forest Ordinance was promulgated on 11.06.2002. Same was extended to PATA (Malakand Division) vide Notification No. SO (Judicial) HD 1-34/04 dated 24th July 2004 of the Government of Khyber Pakhtunkhwa Home and Tribal Affairs Department. Subsection (3) of section 1 of the Ordinance says that it shall come into force once and thus no retrospective effect has been given to the said Ordinance. Section 120 of the Ordinance provides for Repeals and Savings. Subsection (2) of the said section is relevant for the present discussion, which is reproduced for ready reference as under;

(2) "Notwithstanding the repeal of the enactments mentioned above, any appointments made, orders passed, notifications issued, rules made, contracts entered into, proceedings commenced, rights acquired, liabilities incurred, penalties, rates, fees or charges levied, forfeitures made, things done or action taken under any of the provisions of the repealed enactments shall, so far as they are not inconsistent with the provisions of this Ordinance, be deemed to have been respectively made, passed, issued, entered into, commenced, respectively made, passed, entered into, commenced, acquired, incurred, done, taken or levied under this Ordinance."

It has been provided that the promulgation of the law shall not effect the proceedings commenced and rights acquired or liability incurred. The suit had been instituted on 02.05.2001 and the judgment and decree of the learned Civil Court was returned therein on 09.02.2007. Thus, the promulgation of the Forest Ordinance shall not at all effect the proceedings in the instant suit. Reliance of the learned counsel for the petitioners on the case of "Provincial Government NWFP and others v. Muhammad Raziq and others" reported as "2017 CLC 908" was therefore, misplaced. The question as to whether a dispute regarding rights of Royalty between private individuals shall also go to the Forest Settlement Board established under section 5 of the Ordinance and jurisdiction of the civil Court would be barred under section 92 of the Ordinance, need not be dilating upon for the reason that the Forest Ordinance was otherwise not applicable to the proceedings in the instant case. Same is left to be adjudicated upon in other appropriate proceedings when the said question is directly required to be answered.

1. So far as the bar contained in Para 7 of the Martial Law Regulation No. 122 is concerned, the said bar of jurisdiction is not applicable in the instant case. The relevant Para of Regulation No. 122 is reproduced hereunder for ready reference;

2020 M L D 780

[Peshawar]

Before Muhammad Naeem Anwar, J

DUBAI ISLAMIC BANK (PVT.) LTD. through Recovery Officer---Petitioner

Versus

JALAT KHAN and 4 others---Respondents

Writ Petition No. 6282-P of 2019, decided on 13th December, 2019.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Custody and disposal of property pending trial---Restoration of vehicle on superdari---Petitioner impugned order of Appellate Court whereby petitioner's application seeking restoration of custody for vehicle on superdari was declined---Validity---Held, matter was a civil dispute regarding breach of contract which would be dealt with in accordance with law, and question of return of vehicle did not fall within the four corners of S. 516-A, Cr.P.C. as it was applicable only to order for custody and disposal of property pending trial in certain cases---No illegality existed in the impugned order---Constitutional petition was dismissed, in circumstances.

2020 M L D 864

[Peshawar]

Before Rooh-ul-Amin Khan and Ahmad Ali, JJ

MUHAMMAD TAHIR---Appellant

Versus

AKHTAR ALI and 2 others---Respondents

Criminal Appeal No. 18-P of 2017, decided on 3rd September, 2019.

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

----Ss. 302 & 324---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Appeal against acquittal---Unnatural conduct of accused---Prosecution case was that the complainant along with his father and brother were going on motorcycle, accused emerged and committed murder of the brother of the complainant by firing---Motive for the offence was previous blood feud enmity---Prosecution case was based on the statement of complainant/Police Officer---Record showed that there were many contradictions between Murasila and statement of complainant recorded by the court---Complainant reported that he along with his father and brother were going on motorcycle and it did not appeal to a prudent mind that when three persons were riding the motorcycle, how the witnesses remained alive---Daily diary of police station written by complainant himself on the day of occurrence that he was going home as his brother had been murdered, so three days leave be sanctioned---Such fact caused serious damage to the prosecution case---Complainant had not mentioned in the Murasila the kind of weapon used by the accused for firing upon his deceased brother despite close proximity with them at the time of occurrence as shown in site plan which was also prepared on the pointation of the complainant himself---Both the parties though were having blood feud enmity but the accused was only contended to kill the brother of the complainant and spared the complainant and his father being at their mercy---Witnesses produced by the prosecution were not telling the truth rather trying to suppress the actual truth before the court, therefore, the testimony could not be relied upon---Appeal against acquittal being bereft of any merit was dismissed, in circumstances.

2017 SCMR 596 and PLD 2019 SC 527 rel.

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

----Ss. 302 & 324---Qanun-e-Shahadat (10 of 1984), Art. 129---Qatl-i-amd, attempt to commit qatl-i-amd---Appreciation of evidence---Appeal against acquittal---Withholding material evidence---Effect---Prosecution case was that the complainant along with his father and brother were going on motorcycle, accused emerged and committed murder of the brother of the complainant by firing---In the present case, the father of the complainant was mentioned as eyewitness in the Murasila but he was not produced as witness by the prosecution without any plausible reason---Circumstances suggested that best evidence, independent in nature, was withheld from the court for obvious reasons---Said fact by itself was sufficient to discard the evidence---Furthermore, vehicle in which the deceased was shifted to hospital was neither produced, nor statement of the driver was recorded by the Investigating Officer of the case despite the fact that he was also an important witness in the case for substantiating the place of occurrence---Appeal being bereft of any merit, was dismissed in circumstances.

2017 SCMR 486 and 2018 SCMR 153 rel.

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

----S. 417---Appeal against acquittal---Double presumption of innocence---Scope---Once an accused was acquitted, he earned double presumption of his innocence, which could not be taken away from him unless it was shown that the judgment of acquittal was based on surmises or presumptions.

2020 M L D 916

[Peshawar]

Before Ahmad Ali, J

SHAMS UR RAHMAN---Petitioner

Versus

DISTRICT AND SESSIONS JUDGE, MARDAN and another---Respondents

Criminal Revision No. 23-P of 2019, decided on 8th November, 2019.

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

----S. 514---Forfeiture of bond---Verifier of surety, status of---Expunction of remarks---Maxim: Audi alteram partem---Scope---Petitioner sought expunction of adverse remarks recorded against him by the Sessions Judge in the proceedings initiated against the sureties under S.514, Cr.P.C.---Petitioner had verified antecedents of sureties being Nazim of the concerned Union Council---Sessions Judge had observed that the conduct of petitioner was very dirty; that he had performed the role of tout and that not only he had cheated the sureties but had also tried to practice fraud upon the court by verifying such sureties who did not enjoy good reputation, therefore, the Sessions Judge directed the Secretary Local Government to initiate action against the petitioner---Validity---Observations of Sessions Judge were without any backing and record---No responsibility was placed on the verifier of sureties while granted bail to accused persons---Role of verifier of the bail bonds was limited to the extent that he verified the sureties to be local residents---Court had to determine as to whether the sureties were reliable and men of means---Petitioner was not afforded an opportunity to justify his position, therefore the observations were hit by Maxim: Audi alteram partem---Adverse remarks as record by the Sessions Judge against the petitioner were expunged by the High Court.

Muhammad Salim v. The State PLD 1970 Kar. 187 and Muhammad Sarwar v. The State PLD 1965 (W.P.) Pesh. 14 rel.

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

----S. 514---Forfeiture of bail bond---Verifier of surety, status of---Scope---Role of identifier/verifier of the bail bond is limited to the extent that he verifies the sureties to be local residents---Court has to determine as to whether the sureties are reliable and men of means, if so, it can proceed further to accept the bail bonds otherwise reject them.

Muhammad Salim v. The State PLD 1970 Kar. 187 and Muhammad Sarwar v. The State PLD 1965 (W.P.) Pesh. 14 rel.

Muhammad Riaz for Petitioner.

Malik Akhtar Hussain Awan, A.A.G. for the State.

2020 M L D 949

[Peshawar]

Before Lal Jan Khattak and Muhammad Naeem Anwar, JJ

Mst. DILARA BIBI---Petitioner

Versus

The STATE through Advocate-General, Khyber Pakhtunkhwa and another---Respondents

Writ Petition No. 4619-P of 2019, decided on 23rd August, 2019.

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

----S. 561-A---Constitution of Pakistan, Art. 199---Constitutional petition---Inherent powers of High Court---Quashing of FIR---Alternate remedy---Scope---Petitioner prayed for quashing of FIR lodged against her---Validity---Held, criminal cases were decided on the basis of material collected during the course of investigation and the evidence recorded by Trial Court and that too after appraisal of evidence by it in accordance with law---FIR had already been registered against the petitioner and investigation was in progress---Case of petitioner could not be considered under S.561-A, Cr.P.C.---Factual controversy could not be resolved in constitutional jurisdiction and deviation from normal procedure of law as provided in Cr.P.C. was not in consonance with principles of criminal justice---Petitioner had an adequate alternate remedy---Constitutional petition was dismissed.

Col. Shah Sadiq's case 2006 SCMR 276 and Khadim Hussain v. Abdul Basit and 6 others 2002 MLD 1250 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Alternate remedy---Scope---Constitutional jurisdiction cannot be exercised where alternate remedy under the law is available to the petitioner.

Taimur Haider Khan for Petitioner.

Respondent/State (In Motion).

2020 M L D 1017

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmed, J

GHULAM HUSSAIN SHAH (Deceased) through L.Rs. and 11 others---Petitioners

Versus

MUHAMMAD KHALID KHAN---Respondent

Civil Revision No. 196-A of 2013, decided on 11th November, 2019.

(a) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, demand of---Failure to prove talb-i-ishhad---Non-production of postman---Production of photocopy of talb-i-ishhad---Effect---Plaintiff's suit for pre-emption was dismissed---Validity---Vendee had denied receipt of notice of talb-i-ishhad---Postman, who had delivered the notice of talb-i-ishhad, was not produced by the plaintiff---Photocopy of notice of talb-i-ishhad was produced, which was inadmissible in evidence---Plaintiff had not proved the notice through secondary evidence and failed to mention the date of dispatch of notice of talb-i-ishhad in the plaint as well as in his statement recorded before the court, therefore, courts below had rightly held that the plaintiff had failed to prove issuance and service of notice of talb-i-ishhad---Revision petition, being bereft of merit, was dismissed, in circumstances.

Muhammad Bashir and others v. Abbas Ali Shah 2007 SCMR 1105; Afsar v. Afsar Khan 2015 SCMR 311 and Muhammad Sarwar Khan and 2 others v. Din Muhammad and 7 others 2006 YLR 2411 ref.

Allah Ditta v. Muhammad Anar 2013 SCMR 866 rel.

(b) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, demand of---Scope---Talb-i-Muwathibat envisages firstly, the act of prospective pre-emptor coming to know of the factum of sale, secondly, such knowledge or information emanating from a sitting or meeting and thirdly declaration of his intention to pre-empt the suit property immediately on getting knowledge of the sale---Pre-emptor is, thereafter, required to make the demand of Talb-i-Ishhad, as soon as possible but not later than two weeks from the date of notice of sale, for the knowledge of vendee by sending a notice in writing attested by two truthful witnesses, under a registered postal cover with acknowledgment due, confirming his intention to exercise his right of pre-emption---Pre-emptor then has to make a demand of Talb-i-Khusumat by filing a suit in a competent court of law for enforcing his right of pre-emption.

(c) Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Talbs, demand of---Feeble right---Scope---Pre-emption right, being a feeble right, pre-emptor seeking to exercise such right is bound to perform and fulfil its requirements and any failure in that behalf would deprive him of success in getting a pre-emption decree.

Wahid Bakhsh v. Abdul Qayyum and others 1997 MLD 2945 ref.

Muhammad Shafique Awan for Petitioners.

Khalid Rehman Qureshi for Respondent.

2020 M L D 1091

[Peshawar]

Before Ahmad Ali, J

ABDUL ALI---Petitioner

Versus

Mst. SANI and 3 others---Respondents

Writ Petition No. 4974-P of 2019, decided on 27th September, 2019.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Suit for recovery of dower and maintenance allowance---Principles---Payment of dower on behalf of grandfather---Scope---Dower deed---Proof of---Grandfather of defendant-husband promised to transfer landed property as a dower in favour of wife of his grandson through dower deed---Contention of defendant-husband was that he had not executed dower deed in favour of plaintiff-wife---Suit was decreed concurrently---Validity---Scribe and marginal witnesses of dower deed had expired but plaintiff-wife had substantiated the execution of the dower deed by producing sons of said deceased witnesses---Entire dower as per dower deed was outstanding against the defendant-husband---Grandfather of defendant being his elder agreed to transfer landed property to the wife of his grandson through dower deed which had his signature and he stood surety for the same---Property which had been mentioned in the dower deed as dower for plaintiff even if it did not belong to the defendant should be transferred to the wife---Father or grandfather could transfer movable as well as immovable property as dower on the eve of marriage of his son/grandson---If anyone had stood surety or had guaranteed the payment of dower then he was as much party and liable to pay the same as bridegroom himself---Presence of wife at the time of execution of dower deed/agreement was not necessary as same was not a commercial transaction---Marriage in the present case was arranged one and its terms and conditions had been settled amongst elders of the families---Dower deed had been proved on behalf of plaintiff-wife---Grandfather of defendant had expired and inheritance mutation to the extent of share of plaintiff was illegal and void---Wife had right to refuse conjugal rights of her husband in case of non-payment of dower---Desertion of plaintiff in her parents' house could not be considered as her disobedience when her dower was outstanding against the husband---Defendant was bound to maintain his children and disclose his financial status before the Family Court---Defendant had not disclosed his earning which showed that maintenance allowance fixed by the Courts below was within his means---Family Court had discretion to grant annual increase in the maintenance allowance---No mis-reading or non-reading of evidence had been pointed out in the impugned judgments passed by the Courts below---Constitutional petition was dismissed in limine, in circumstances.

Mst. Shumaila Bibi v. Zahir Khan and 3 others PLD 2015 Pesh. 182; Muhammad Anwar Khan v. Sabia Khanam and another PLD 2010 Lah. 119; Maj. Rifat Nawaz and 5 others v. Mst. Tahira and 2 others 2008 CLC 803; Mst. Shehnaz Akhtar v. Fida Hussain and 2 others 2007 CLC 1517; Mst. Maryam Haseena and 3 others v. Syed Ejaz Hussain Shah and 3 others 2011 MLD 176; Sardar Arshid Hussain's case 2017 SCMR 608 and Muhammad Asim's case PLD 2018 SC 819 rel.

Fazal-Ullah for Petitioner.

2020 M L D 1159

[Peshawar (Mingora Bench)]

Before Syed Arshad Ali and Wiqar Ahmad, JJ

KARIM UL HASAN---Petitioner

Versus

The STATE and 2 others---Respondents

Writ Petition No. 718-M and Criminal Revision No.105-M of 2019 ,decided on 11th November, 2019.

Criminal Procedure Code (V of 1898)---

----Ss.22-A & 22-B---Jurisdiction, and power of Ex-officio Justice of Peace---Application for issuance of direction to the Investigating Officer for substituting the name of accused was accepted---Validity---Burden of proof, without any doubt, laid on the complainant and the prosecution to prove not only the commission of offence but the fact that it was a bona fide mistake on their part to have named "S" instead of "K" in their first report, as well as the other pieces of evidences gathered during the process of investigation---Record showed that the complainant or the accused had not attributed any mala fide to the Investigating Agency nor any such mala fide was visible in the case---Complainant had admittedly named the accused "S" which he wanted to be replaced with the accused "K"---Investigating Agency had nowhere been attributed any mala fide nor want of its jurisdiction had been pleaded or asserted by any of the parties at any stage---Effect of setting aside of the order of Justice of Peace, at that stage, would no doubt necessitate the ordering of retracing the steps taken in the investigation of the case, which could not be deemed appropriate in the circumstances of the case---Strong factual controversy existed in the case and that also had arisen out of investigation of the case, therefore, Court did not feel inclined to interference in the said affairs and left the same entirely to the determination of the Trial Court---Constitutional petition was dismissed in circumstances.

Muhammad Saeed Khan Shangla and Syed Abdul Haq for Petitioner.

Wilayat Ali Khan, A.A.G for the State.

Hazrat Rehman and Muhammad Ikram Khan for Respondents.

2020 M L D 1215

[Peshawar]

Before Muhammad Naeem Anwar, J

ZAMIN---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Application No. 3634 of 2019, decided on 20th December, 2019.

Criminal Procedure Code (V of 1898)---

----S.497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)--- Possession of narcotics---Bail, grant of---Further enquiry----Recovery of 4000 grams of Charas and 50 grams of ice---Record revealed that no public complaint or statement was available on record so as to validate version of the seizing officer set forth in the FIR---Nothing was available on record which could show as to whether in the subject house only accused was residing or the same was combined one---Recovery of 4000 grams of Charas had admittedly been made from the room and only 50 grams of ice was shown to have been recovered from the immediate possession of accused---Besides registration of the present FIR, on the same day, in the same Police Station other FIRs were registered regarding cases of same nature with a little bit time difference, wherein all the accused had been released on bail by the High Court, leading the case of accused to further inquiry into his guilt---Benefit of doubt, if any, could be extended to the accused at bail stage---Investigation in the case was complete and the accused was no more required for further investigation---Bail was granted, in circumstances.

Noor Alam Khan for Petitioners.

Barrister Babar Shahzad Imran, A.A.G. for the State.

2020 M L D 1230

[Peshawar]

Before Ahmad Ali, J

KABAL KHAN and 12 others---Petitioners

Versus

RAHMANZAY and others---Respondents

Civil Revision No. 303-P of 2019, decided on 4th October, 2019.

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

----Ss. 9, 53-A & 54---Oral agreement to sell---Transaction with Pardanasheen lady---Requirements--- Burden of proof---Procedure--- Oral agreement to sell---Limitation---Commencement of.

Predecessor-in-interest of plaintiffs remained alive for twenty six years after execution of alleged oral agreement to sell but he never claimed the ownership of suit property nor approached the Court of law. Present suit had been filed after thirty three years from the alleged agreement to sell. Plaintiffs were not vigilant in asserting their right by filing the present suit. Nothing was on record that plaintiffs had performed any overt act to keep the agreement to sell alive. Alleged oral agreement to sell had expired in circumstances. Witnesses produced on behalf of plaintiffs had failed to state the exact date and time of alleged oral agreement to sell. Executant of alleged agreement to sell was Pardanasheen lady and her identity had not been established during evidence of plaintiffs. Burden of proof to establish oral sale was on the plaintiffs who had failed to discharge the same. No family member of executant of agreement to sell was present at the time of its execution. Every precaution should have been taken to ensure that the pardanashin person who was produced before the witnesses was actually the purported vendor. Plaintiffs had failed to establish the oral sale, payment of sale consideration and identity of parda observing lady. Vendee to prove sale deed on behalf of Pardanasheen was required to establish that lady had comprehended the terms and conditions of sale transaction. Plaintiffs should have proved that lady was accompanied by her close relative having no clash of interest and sale transaction was completed before witnesses and sale consideration was fixed and paid to her and she was aware of the piece of land being sold to vendee. Absence of duress, protest, lack of misunderstanding or want of comprehension would not itself be the proof of understanding of the executant. Evidence should have been brought on record that documents were read over and explained to the executant. Where writing for transfer of tangible immovable property was necessary then same should be made in writing and not orally. When transfer of tangible immovable property of valuing one hundred rupees and upward was made then it could be made only by a registered instrument. Where no document was available even then evidence should be produced to satisfy the Court that there existed a contract so that Court might ascertain with reasonable certainty as to what were its terms. Defendant for the protection of section 53-A of Transfer of Property Act, 1882 should be willing to perform the terms of contract as required. Where burden of proof had not been discharged then Section 53-A of Transfer of Property Act, 1882 would not apply in the matter. Oral agreement to sell was required to be documented in the revenue record through mutation within a reasonable time. Limitation to enforce oral agreement to sell would start from the date of refusal but in absence of any such refusal too it was duty of beneficiary to make efforts to safeguard his right. If no such efforts were made then after lapse of three years the beneficiary of oral sale would be barred by the law of limitation to file suit for specific performance. No date of refusal on the part of defendant to enforce alleged oral agreement had been mentioned in the plaint in the present case. Plaintiffs should have filed suit within limitation even if there was no refusal on the part of defendants. Neither mis-reading or non-reading of evidence nor any error in concurrent findings had been pointed out in the impugned judgments passed by the Courts below. Revision was dismissed in limine, in circumstances.

Ainuddin and others v. Abdullah and another 2019 SCMR 880; Wali Muhammad Khan and another v. Mst. Amina and others 2018 SCMR 2080; Mst. Nishata v. Muslim Khan alias Musali and others PLD 2011 Pesh. 23; Bakhtiar v. Nasrullah and 12 others 2015 CLC 385; Abdullah Bhai and others v. Ahmad Din PLD 1964 SC 106; Manzoor Hussain v. Muhammad Fazal and 8 others 2002 CLC 1165; Mumtaz Hussain Khan and 5 others v. Muhammad Hussain and 3 others 2001 CLC 946 and Mst. Kubra Amjad v. Mst. Yasmeen Tariq and others PLD 2019 SC 677 rel.

(b) Administration of justice---

----Law favours vigilant and not the indolent.

Tilla Muhammad for Petitioners.

2020 M L D 1284

[Peshawar]

Before Rooh-ul-Amin Khan and Ahmad Ali, JJ

FARMAN ALI---Appellant

Versus

SANI GUL and another---Respondents

Criminal Appeal No. 1109-P of 2019, decided on 10th October, 2019.

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

----Ss. 302 & 34---Qanun-e-Shahadat (10 of 1984), Art.129(g)---Qatl-i-amd, common intention---Withholding of best evidence---Appreciation of evidence---Benefit of doubt---Non-production of witnesses of recovery---Scope---Accused was alleged to have murdered his own brother---Accused, at the relevant time, was sent to hospital for treatment being in injured condition along with a police constable---Accused could not be said to have been arrested from the spot with weapon of offence---No witness to the recovery memo. was examined by the prosecution---Witness referred to in the FIR was abandoned by the prosecution---Complainant, in his statement, had not offered anything in respect of arrest of the accused and recovery of weapon at the spot---Nazim of the Union Council, an independent witness, had not only contradicted the place of occurrence but had also hinted at the non-presence of the complainant at the spot by stating that no one from the complainant side accompanied the deceased to the hospital---Occurrence took place inside the house, as alleged by the prosecution, so the female inmates living therein were natural witnesses but neither their statements under S.161, Cr.P.C. were recorded nor they were produced during trial---Prosecution had withheld the best evidence available, as such, under Art. 129(g), Qanun-e-Shahadat, 1984, legal inference could be drawn that if the said witness had entered into the witness box then they would not have supported the prosecution case---No blood was recovered from the place of occurrence---Prosecution evidence was completely silent about the acquitted co-accused---Prosecution had failed to build any nexus of the accused with the commission of the offence---Trial Court had erred in appreciating the case evidence in its true perspective---Appeal against conviction was allowed, in circumstances.

PLD 2016 SC 17; 1992 PCr.LJ 158 and PLD 2019 SC 527 ref.

(b) Criminal trial---

----Benefit of doubt---Scope---Slightest doubt in the prosecution case is sufficient to grant acquittal to accused.

Shabir Hussain Gigyani for Appellant.

Mujahid Ali Khan, A.A.G. for the State.

Complainant in person.

2020 M L D 1303

[Peshawar]

Before Rooh ul Amin Khan and Ishtiaq Ibrahim, JJ

SHAHID ULLAH---Appellant

Versus

The STATE and another---Respondents

Jail Criminal Appeal No. 873-P of 2019, decided on 31st October, 2019.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---First Information Report lodged with promptitude---Scope---Accused was charged for committing murder of son of complainant by giving knife blows---Record depicted that occurrence had taken place at 1750 hours and matter had been reported with promptitude at 1815 hours i.e. within 25 minutes---Said fact eliminated the possibility of consultation and deliberation on the part of complainant in charging the accused.

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

----Ss. 302(b) & 302(c)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Accused was charged for committing murder of son of complainant by giving knife blows---Record showed that complainant in his initial report as well as in the statement before court had directly and singularly charged the accused for murder of his son---Admittedly, substitution of an accused charged singularly in a murder case was a rear phenomenon, particularly, when there was no evidence about previous enmity of ill will between the parties---Complainant, while appearing as witness reiterated the same story of the offence as set forth by him in his initial report---Complainant had not disclosed the motive---Shopkeeper in front of whose shop occurrence had taken place was eye-witness of the hot words taken place between the accused and the deceased over return of pigeon---Admittedly, said witness was not related to the deceased rather he was the friend of accused---Complainant and said shopkeeper/ witness had been subjected to lengthy and taxing cross examination but nothing beneficial to defence could be extracted from their mouths---Witnesses remained stuck to their stance and corroborated each other on all material particulars of the occurrence---Testimonies of said witnesses got support from the medical evidence furnished by Medical Officer---Positive serologist report qua the blood-stained earth secured from the spot and the bloodstained last worn clothes of the deceased proved the place of the occurrence as alleged by the prosecution---Circumstances established that the prosecution had proved the guilt of the accused upto the hilt through cogent and confidence inspiring direct evidence corroborated by strong circumstantial evidence in the shape of recoveries coupled with medical evidence---Record showed that the occurrence was result of a sudden flare up---Prosecution evidence established that before inflicting knife blows on the person of the deceased there was exchange of hot words on return of pigeon of shopkeeper between the accused and the deceased, which resulted into a sudden fight during which course the accused gave knife blows to the deceased---Occurrence had taken place without premeditation and the accused had inflicted knife blow to the deceased in heat of passion without taking undue advantage or acting in a cruel manner---Accused had no positive motive with the deceased, rather what happened between the appellant and the deceased were sudden events without any pre-meditation and plan---Non inflicting any knife blow by the accused to the deceased during exchange of hot words before the occurrence and his later action during the brawl, were sufficient circumstances to prove that he had acted in the course of sudden quarrel and fight---Case of the accused, in circumstances, had fallen within the ambit of S.302(c), P.P.C. not 302(b), P.P.C.---Resultantly, the impugned judgment was modified in the manner that conviction of the accused under S. 302(b), P.P.C. was converted into 302(c), P.P.C.---Sentence of accused was reduced from life imprisonment to 10 years' R.I.---Appeal was disposed of with said modification.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of crime weapon on the pointation of accused---Reliance---Scope---Accused was charged for committing murder of son of complainant by giving knife blows---Recovery of the crime knife on the pointation of the accused strongly corroborated the ocular account.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Unexplained absconsion of the accused---Scope---Accused was charged for committing murder of son of complainant by giving knife blows---Record showed that accused remained absconded---No plausible explanation had been furnished by the accused for such absconsion---Unexplained absconsion of the accused, soon after the occurrence, was yet another circumstantial piece of evidence which if taken along with direct evidence would be sufficient to prove the guilty conscious of the accused.

Danyal Khan Chamkani for Appellant.

Mujahid Ali Khan, A.A.G. for the State.

Complainant in person.

2020 M L D 1350

[Peshawar]

Before Waqar Ahmad Seth, C.J.

NAWAB ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 169-P of 2015, decided on 28th February, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 35 & 397---Sentence in case of conviction of several offences at one trial---Scope---Accused assailed his conviction under S.13 of Arms Ordinance, 1965---Accused appraised the court that he was sentenced by Supreme Court to imprisonment for life, therefore, the sentence under S.13 of Arms Ordinance, 1965 be directed to run concurrently with the sentence of imprisonment for life---Both the cases pertained to one and the same person and as per S.397, Cr.P.C. read with S.35(2)(a), Cr.P.C. the court was empowered to order different sentences inflicted upon one accused to run concurrently, therefore, the request of the accused was acceded to---Appeal was disposed of accordingly.

Altaf Samad for Appellant.

Umer Hayat and Aif Ali Khan, A.A.G. for the State.

2020 M L D 1436

[Peshawar (Abbottabad Bench)]

Before Ahmad Ali, J

Mian MUHAMMAD RIAZ

and 8 others---Petitioners

Versus

Mst. MARHABA and 35 others---Respondents

Writ Petition No.69-A of 2017, decided on 9th March, 2020.

Civil Procedure Code (V of 1908)---

----O. XVII, R. 3---Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967), S. 135---Partition of landed property by the Revenue Officer---Closure of evidence---Constitutional petition---Petitioners could not produce their evidence and their right of defence was struck off---Validity---Petitioners in order to invoke constitutional jurisdiction of High Court were bound to show their bona fide---Evidence on behalf of petitioners was not adduced despite repeated orders of the Trial Court---Proceedings had been delayed on behalf of petitioners on one pretext or the other---Petitioners had not come to the equitable Court with clean hands---Constitutional jurisdiction of High Court was discretionary in nature---One who had sought equity must do equity---Petitioners had made every effort to prolong and delay the partition of landed property without any just and reasonable cause---Impugned orders passed by the Courts below were well reasoned---Petitioners had been provided ample and sufficient opportunity of pleading their case in a reasonable and sufficient manner---Constitutional petition was dismissed, in circumstances.

2002 CLC 1039; 1999 CLC 232; 2012 CLC 709; 2010 CLC 77; 2008 SCMR 322; 2014 SCMR 637; 1996 SCMR 1967 and 2020 SCMR 300 rel.

Nawab Syed Raunaq Ali's case PLD 1973 SC 236; Secretary to the Government of Punjab v. Ghulam Nabi PLD 2001 SC 415; Muhammad Ali v. Province of KPK through Secretary, Elementary and Secondary Education, Peshawar 2010 SCMR 673 and Noon Enterpriser CNG Station, Rawalpindi v. Sui Northern Gas Piple Lines Limited, through General Manager Rawalpindi and another 2020 SCMR 300 rel.

Sardar Asad Ali Chohan for Petitioners.

Syed Hammad Hussain Shah Gilani for Respondents.

2020 M L D 1462

[Peshawar (Abbottabad Bench)]

Before Ahmad Ali, J

Syed ARSHAD HUSSAIN SHAH---Petitioner

Versus

Syed MOBEEN SHAH and others---Respondents

Civil Revision No.307-A of 2015, decided on 2nd March, 2020.

Civil Procedure Code (V of 1908)---

----Ss. 16 & 20 & O. VII, R. 10---Suit for declaration and permanent injunction---Suit property was situated within the territorial jurisdiction of another Court---Plaint, return of---Scope---Suit property, in the present case, was situated within the territorial jurisdiction of another Court---Defendants were also residing within the local limits of said Court---Trial Court could not proceed with the present suit, in circumstances---Interest of the parties was to be determined and resolved by the Court where suit property was situated and the defendants were residing---Courts below had correctly appreciated the facts and rightly held that Trial Court did not have jurisdiction in the matter---No illegality had been pointed out in the concurrent findings recorded by the Courts below---Plaint had rightly been returned under O.VII, R.10 of C.P.C.---Revision was dismissed, in circumstances.

Haji Abdul Malik's case 2003 SCMR 990 rel.

Muhammad Tariq Khan Tanoli for Petitioner.

Muhammad Ayaz Khan, Muhammad Asif Qazi, Mehdi Zaman Khan and Zulfiqar Ali Tanoli for Respondents.

2020 M L D 1469

[Peshawar]

Before Muhammad Naeem Anwar, J

EXECUTIVE OFFICER CANTT. BOARD KOHAT---Petitioner

Versus

SAADULLAH KHAN and 4 others---Respondents

Civil Revision No.1670-P of 2010, decided on 3rd February, 2020.

Civil Procedure Code (V of 1908)---

----O. XXVI, Rr. 9 & 14(2)---Notice for removal of unauthorized construction---Suit for permanent and mandatory injunction---Local commission, appointment of---Report of local commission---Proof of---Requirements---Trial Court appointed local commission to determine location of suit property who submitted his report---Defendants objected the report of local commission---Neither report of local commission was exhibited nor he was examined---Trial Court turned down objections of defendants and decreed the suit which was maintained by the Appellate Court---Validity---Local commission had been appointed for local investigation/spot inspection---Confirmation of report of local commission or otherwise was subject to O.XXVI, R.14(2), C.P.C.---Statement of local commission had not been recorded in the present case---Confirmation of report of commission was subject to the examination of local commission before the Trial Court---Courts below had failed to adopt proper procedure for determination of objections to the report of local commission---Impugned judgments and decrees were nullity in the eyes of law, in circumstances---Matter was remanded to the Trial Court with the direction to examine the local commissioner for determining the fate of his report and then decide the case in accordance with law---Impugned judgments and decrees were set aside---Revision was accepted, in circumstances.

Mst. Jannoo Mai v. Shamasudin 2012 MLD 941; Fida Muhammad v. Umar Khitab 2013 CLC 1171 and Ghulam Mohiuddin v. Alauddin 2014 YLR 1964 ref.

Muhammad Irfan Khattak for Petitioner.

Zia-ur-Rehman for Respondents.

2020 M L D 1595

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad and Ahmad Ali, JJ

MUHAMMAD RIAZ---Petitioner

Versus

The STATE and others---Respondents

Writ Petition No.442-A of 2020, decided on 5th May, 2020.

Criminal Procedure Code (V of 1898)--

----Ss. 491 & 491-A---Habeas corpus petitions---Relationship, determination of--- Petitioner alleged that his wife was in illegal confinement of her father, whereas detenue denied any such relation with petitioner---Validity---Proceedings under Ss.491 and 491-A, Cr.P.C. were summary in nature and not intended to go beyond summary consideration of questions essentially relevant to alleged detention i.e. whether a detenue was to be set at liberty and as a consequence thereof, be permitted to go with the person of his or her own choice, or to drop the proceedings when detention was found legal---High Court observed that Court while deciding application under Ss.491/491-A, Cr.P.C. was not required to go into question of status or relationship of parties by holding full-fledged trial of counter claims and it should concerned itself only with free will of the detenue---Petitioner claimed that detenue was his wife, however detenue as well as her father denied such averment---Held, it was inappropriate and undesirable, if not illegal, for the High Court to determine fate of couple by adjudicating validity of marriage on the touchstone of the Injunctions of Islam, in proceedings under S.491 Cr.P.C.---High Court declined to interfere in the matter as there was nothing to suggest that either detenue was in illegal custody or there was any risk to her life at the hands of her father---Petitioner failed to show any locus standi to file petition in the High Court as he had no relation with the detenue---Custody of alleged detenue with her father was not illegal---Petition was dismissed, in circumstances.

Ali Muhammad v. The State 2013 SCMR 1484 and Abdul Majid v. S.H.O. Police Station Shujabad 1987 SCMR 282 rel.

Muhammad Asjad Parvez Abbasi for Petitioner.

Raja Muhammad Zubair, A.A.G. for the State.

Junaid Anwar Khan for Respondent No.4.

2020 M L D 1685

[Peshawar (Abbottabad Bench)]

Before Ahmad Ali, J

The STATE---Petitioner

Versus

ZAHEER GUL and 2 others---Respondents

Cr.A. No.140-A of 2010, decided on 28th May, 2020.

Penal Code (XLV of 1860)---

----Ss.381 & 411---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14---Criminal Procedure Code (V of 1898), S.417(2A)---Extortion---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Two versions---Press reporting--- Accused was arrested for stealing motor car from a public park but newspaper reported differently---Complainant was aggrieved of acquittal of accused under S. 265-K, Cr.P.C. by Trial Court---Validity---Two versions regarding mode and manner of arrest of accused and recovery of vehicle made the case of accused highly doubtful--- If the news was not correct then police should have denied the same or any other action might have been taken against that newspaper for publishing false news--- If the news was correctly published in newspaper, then recovery memo was fake as accused had already been arrested by police--- Except recovery of stolen vehicle there was nothing with prosecution to connect accused with commission of offence--- Slightest doubt in prosecution case was sufficient to acquit an accused--- For extending benefit of doubt, it was not necessary that there should be many circumstances creating doubts, single circumstance, creating reasonable doubt in prudent mind about guilt of accused entitled accused to its benefit not as a matter of grace or concession but as a matter of right--- Standard for appreciation of evidence was different than the one in appeal against conviction--- Once accused was acquitted, then he had earned double presumption of his innocence, which could not be taken away from him unless it was shown that the judgment of acquittal was based on surmises or presumptions--- Trial Court had rightly acquitted the accused in exercise of jurisdiction under S. 265-K, Cr.P.C.---Appeal was dismissed, in circumstances.

2009 SCMR 230; 2011 SCMR 664; 2011 SCMR 646; 1984 PLD SC 433; 2012 MLD 1358; 2007 SCMR 1825; 2008 PCr.LJ 376; 1994 PLD Pesh. 114; 2012 PLD Pesh. 01; 1999 PCr.LJ 1087; 1997 SCMR 449; 2011 SCMR 820 and 2006 PCr.LJ 1002 rel.

Sardar Muhammad Asif, A.A.G. for the State.

Zulfiqar Ahmed for Respondents.

2020 M L D 1707

[Peshawar (Bannu Bench)]

Before Ikramullah Khan and Sahibzada Asadullah, JJ

AMIN JAN---Appellant

Versus

The STATE and 2 others---Respondents

Criminal Appeal No.110-B of 2018, decided on 14th February, 2020.

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

----Ss. 302(b)& 34---Qatl-i-amd, common intention---Appreciation of evidence---Incident was reported with promptitude---Accused and co-accused were charged for committing murder of nephew and guest of the complainant by firing---Motive for the offence was that both the accused had been forbidden by the deceased not to come to their tents for disturbing "Parda" of the ladies---Record showed that soon after the occurrence, the dead bodies were taken to the police station without loss of time, where the report was made---Such quick succession of events excluded the possibility of consultation and deliberations.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Accused and co-accused were charged for committing murder of nephew and guest of the complainant by firing---Motive for the offence was that both the accused had been forbidden by the deceased not to come to their tents for disturbing "Parda" of the ladies---Record showed that the defence failed to establish that the charge against the accused was the outcome of malice and ulterior motives as it transpired from record that the accused and complainant were related to each other and as such had no common interest---Motive given in the FIR appealed to mind that those were the accused who had come to tease the women folk and in such eventuality altercation took place which resulted the occurrence---Overall circumstances of the case told nothing but bona fide on part of the prosecution that they told what they had seen---Record revealed that after commission of the offence, the accused remained fugitive from law for more than thirty (30) years and no explanation whatsoever was given for his long abscondence---All efforts were made to arrest the accused, but the law enforcing agencies could not succeed---Circumstances established that the prosecution had proved its case against the accused to the hilt and that the impugned judgement was well-reasoned in all respects which needed no interference---Appeal against conviction was dismissed accordingly.

Imtiaz Ali alias Taji v. The State and others 2020 SCMR 287 and Bux Ali alias Dodo v. The State 2019 YLR 324 rel.

(c) Criminal trial---

----Material discrepancies---Scope---Material discrepancies are those which are not normal and not expected of a normal person.

Allah Bakhsh v. Ahmad Din 1971 SCMR 462 rel.

(d) Criminal trial---

----Absconsion---Scope---Mere absconsion is not a conclusive proof of guilt of accused person, but it can be used as a corroborative piece of evidence and has to be read along with substantive piece of evidence.

(e) Criminal trial---

----Motive---Scope---Once the motive was alleged and was not proved, it would react upon the quantum of sentence.

Muhammad Anwar Khan Maidad Khel for Appellant.

Shahid Hameed Qureshi, Additional Advocate General for Respondents.

2020 M L D 1724

[Peshawar (Bannu Bench)]

Before Ms. Musarrat Hilali and Sahibzada Asadullah, JJ

HARIS MALIK---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.07-B of 2020, decided on 2nd March, 2020.

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

----Ss. 9(c), 25 & 29---Transportation of narcotics---Mode of making searches and arrest---Possession of illicit articles---Presumption---Appreciation of evidence---Police witnesses---Burden of proof---Scope---Accused was found transporting 14 kilograms of charas which was recovered from the secret cavities of the vehicle being driven by him---Prosecution witnesses were cross-examined at length regarding the mode and manner of recovery, but the defence failed to create dents---Witnesses remained consistent on material aspects of the case---Defence alleged mala fide to the Seizing Officer but failed to point out as to why the police would plant such a huge quantity against the accused and why an attempt was made to implicate the accused, if innocent---Manner in which the recovery was effected, the process of weighment, the sealing of case property and the investigation showed that the case was investigated on proper lines with strict adherence to the law and procedure---Defence had failed to point out major discrepancies in the statements of witnesses---Accused argued that no efforts were made to associate private witnesses to witness the recovery but the contention held no ground as S.25 of Control of Narcotic Substances Act, 1997 had done away with such formality---Police officials were as good witnesses as others and that too when no mala fide was proved against them---Prosecution had fully connected the accused with commission of the offence and it was the accused who had to prove his innocence---Trial Court had rightly convicted the accused---Appeal against conviction was dismissed, in circumstances.

Abdul Rasheed v. The State 2009 SCMR 306; Gul Alam v. The State through Advocate General N.-W.F.P. 2011 SCMR 624 and Kashif Amir v. The State 2010 SCMR 1052 rel.

(b) Criminal trial---

----Witness---Police witnesses---Scope---Police officials are as good witnesses as others and that too when no mala fide is either alleged or proved against them.

Abdul Rasheed v. The State 2009 SCMR 306 and Gul Alam v. The State through Advocate General N.-W.F.P. 2011 SCMR 624 rel.

Ms. Nosheen Ahmad for Appellant.

Shahid Hameed, Addl. A.G. for the State.

2020 M L D 1745

[Peshawar]

Before Ahmad Ali, J

MARDAN INSTITUTE OF SCIENCES---Petitioner

Versus

VICE-CHANCELLOR ABDUL WALI KHAN UNIVERSITY MARDAN and others---Respondents

C.R. No.1254-P of 2019, decided on 3rd February, 2020.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 39---Ban on new admission in the University---Suit for cancellation of instrument---Temporary injunction, grant of---University was not offering the Master in Public Health at its main campus---University could not bypass the policy of Higher Education Commission---Higher Education Commission had made a policy that if a university was not offering a programme at its principal seat then same programme could not be allowed in the affiliated institutions---Higher Education Commission had directed the affiliated Institution (Institution) to stop new admission in Master of Public Health---No embargo had been placed on the already admitted students to complete their degree and their rights had been protected---Status of impugned policy would be determined after recording of evidence---Affiliated Institution had no prima facie case, in circumstances---Impugned policy was not for the institution in question but it was for all the universities and institutions---No discrimination or mala fide had been pointed out in the impugned policy---Balance of convenience did not lie in favour of institution---Affiliated institution, despite ban on new admission in the discipline of Master of Public Health had granted new admission in the said programme---Said Institution had not come to the Court with clean hands; being affiliated with the University was bound by the directives of the said University---Affiliated Institution would not suffer irreparable loss if temporary injunction was not granted---Institution had failed to point out any illegality or irregularity in the impugned orders passed by the Courts below---Revision was dismissed in limine, in circumstances.

Gohar Rahman Khattak for Petitioner.

2020 M L D 1753

[Peshawar]

Before Ahmad Ali, J

KAMRAN ALI---Petitioner

versus

AMANULLAH and others---Respondents

C.R. No.602-P with C.M. No.865 of 2018, decided on 6th January, 2020.

Specific Relief Act (I of 1877)---

----S.12---Suit for specific performance---Expunction of remarks---Scope---Petitioner filed suit against widow of deceased for specific performance of agreement in respect of the house belonging to deceased---Defendant/widow filed her cognovits and the suit was decreed ex-parte---Respondents/co-sharers of the house challenged the ex-parte decree through application under S.12(2), C.P.C., on the ground that the deceased had died issueless leaving behind one widow, therefore, the defendant/widow could only inherit 1/4th share out of the legacy of the deceased and was not competent to sell the entire house---Trial Court dismissed the application with the observation that while passing ex-parte decree only the share of defendant/widow was decreed and the decree did not affect the rights of respondents---Petitioner filed review petition for expunction of remarks relating to rights of respondents, which was dismissed---Appeal against said order was also dismissed---Validity---Trial Court, while passing ex-parte decree, had specifically decreed the share of defendant in favour of the petitioner---Even if the remarks relating to rights of respondents was expunged even then it would not affect the observation of Trial Court recorded in the ex-parte decree---Petitioner had not filed any appeal for the modification of the ex-parte decree and it had attained finality---Concurrent findings of courts below did not suffer from any illegality---Revision petition was dismissed, in circumstances.

Muhammad Irshad Mohamand for Petitioner.

Saeed Ullah Khan for Respondents.

2020 M L D 1893

[Peshawar]

Before Ahmad Ali, J

SIRAJ HUSSAIN---Petitioner

versus

AASHIQ HUSSAIN and 2 others---Respondents

Civil Revision No.1138-P with C.M. No.1504-P of 2019, decided on 1st November, 2019.

Khyber Pakhtunkhwa Pre-emption Act (X of 1987)---

----S. 13---Pre-emption suit against a sale based on pre-emption decree---Maintainability---Earlier pre-emption suit was filed wherein compromise was effected and consent pre-emption decree was passed---Plaintiff filed pre-emption suit against the said consent pre-emption decree which was dismissed concurrently---Validity---Pre-emptor filed appeal only against the consent pre-emption decree and he did not challenge the order whereby his suit had been dismissed---Petitioner through present revision petition had not challenged the impugned order whereby his suit was dismissed and he had challenged consent pre-emption decree which had been passed in the earlier suit---No pre-emption suit did lie against a pre-emption decree---Decree could not be challenged through a suit---Appellate Court had properly appreciated the facts and circumstances of the case---Revision was dismissed in limine.

Bashir Khan Wazir for Petitioner.

2020 M L D 1901

[Peshawar (Bench Bannu)]

Before Musarrat Hilali and Sahibzada Asadullah, JJ

The STATE through A.G. KPK---Appellant

versus

SUBHAN ALI and another---Respondents

Criminal Appeal No.131-B of 2015, decided on 27th April, 2020.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Chance witness---Unnatural conduct of complainant---Scope---Accused were charged for committing murder of brother of the complainant by firing---Record showed that the incident occurred in the Hujra of the complainant where he along with the deceased was present when the accused approached and that after they were served with cold drinks, they resorted to firing where the deceased lost his life---Record was silent as to why the accused came to the Hujra and that why only the deceased was selected to be killed despite the reason that no previous ill-will or grudge was there between the parties---Conduct of the complainant was not above board that when there was no particular purpose with the deceased and that when on reaching the Hujra the assailants could have accomplished their task then what for they kept waiting and facilitated the deceased to go home and bring cold drinks as the very purpose was to kill and the opportunity was there---Only the deceased was targeted and the complainant was spared when both of them were the easiest targets---Conduct of the complainant was unnatural and his presence on the spot disturbed the mind as to why the assailants asked for his introduction from his brother and that why the deceased did not tell that who the assailants were---Spot was the Hujra of the complainant and both the assailants resorted to indiscriminate firing but no bullet marks were found on the surrounding walls or on the cot where the deceased was sitting---Said fact created as serious doubt regarding the place of occurrence and mode and manner as alleged by the complainant---Unnatural conduct of the complainant casted doubt regarding his truthfulness---Complainant, on the next day of occurrence, through a supplementary statement, introduced the unknown as present accused, but when he was examined, he did not explain as to how he came to know that the unknown person was the present accused---Even the Investigating Officer could not bring anything on record to have confirmed the source wherefrom the information was gathered---Circumstances told that the deceased at the time of incident was all alone and that the complainant was not present on the spot and later on his attendance was procured and the accused were charged---Appeal against acquittal was dismissed, in circumstances.

Muhammad Hussain v. The State 2017 YLR Note 12 ref.

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

----Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Test identification parade---Infirmities---Accused were charged for committing murder of brother of the complainant by firing---Though the identification parade was conducted but neither any specific role was given to the accused at the time of occurrence nor were the requirements fulfilled---Admittedly, identification parade was conducted after 23-days of the arrest of the accused---Prosecution could not explain as to what caused the delay---Complainant had stated that he had gone for tableegh and that it was on his return that he was informed and the accused was got identified but no material was collected by the Investigating Officer to substantiate his claim---Judicial Magistrate in whose supervision the identification parade was conducted stated that the accused was produced before him for his physical custody on 12.12.2011 and again for another round where further one day custody was granted---Judicial Magistrate admitted that when the accused was brought before him he was not muffled, thus possibility could not be excluded that the witnesses would have an opportunity of seeing the accused---Judicial Magistrate stated that while conducting identification parade the accused complained that the complainant was provided an opportunity to visit him in Central Jail before the identification parade---Such identification parade could not be relied upon to convict the accused---Appeal against acquittal was dismissed, in circumstances.

Amanullah v. Muhammad Ashfaq and another 2018 YLR Note Peshwar 169 rel.

(c) Penal Code (XLV of 1860)-

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Recovery of crime empties from the spot---Scope---Accused were charged for committing murder of brother of the complainant by firing---Record showed that the Investigating Officer recovered three empties of 7.62 bore from the spot, which were sent to the office of Chemical Examiner to tender its opinion, as to whether those were fired from one or different weapons---Report of Chemical Examiner showed that the empties were fired from one and the same weapon---Deceased had three inlet wounds and three empties were recovered from the spot with opinion from the Forensic Sciences Laboratory as having been fired from one and the same weapon belied stance of the complainant regarding the involvement of two accused in the commission of the offence---Appeal against acquittal was dismissed, in circumstances.

(d) Criminal trial---

----Two views---Scope---If two views were possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which was favourable to the accused should be adopted.

(e) Appeal against acquittal---

----Interference---Appeal against the judgment of acquittal was to be interfered only when there are compelling and substantial reasons for doing so.

Shahid Hameed Qureshi, Addl. A.G. for Appellant.

Waqar Ullah Khan for Respondents.

2020 M L D 1948

[Peshawar]

Before Muhammad Naeem Anwar, J

MEHER TAJ---Petitioner

Versus

AJMAL KHAN and 7 others---Respondents

Civil Revision No.324-P of 2017, decided on 18th December, 2019

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

----S. 53-A---Khyber Pakhtunkhwa Land Revenue Act (XVII of 1967), S.52---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Suit for declaration---Entries of revenue record---Presumption of truth---Contention of plaintiff was that he was owner in possession of suit property and impugned mutations in favour of defendants were result of fraud---Suit was dismissed concurrently---Validity---Alleged sale deed in favour of plaintiff did not contain specification and description of suit land---Seller of suit property was not owner of the same prior to mutation of inheritance in his favour---Presumption of truth was attached to the entries of revenue papers---Stamp vendor had neither produced his Register nor copy of its page relevant before the Trial Court---Plaintiff had withheld best evidence and adverse inference would be drawn against him---Possession of the property was sine qua non for a suit under S.53-A of Transfer of Property Act, 1882---Plaintiff had failed to substantiate his contention by producing cogent and reliable evidence---Plaintiff was not in possession of suit property and impugned mutations in favour of defendants were correct and legal---Plaintiff had failed to point out any mis-reading or non-reading of evidence or illegality or any infirmity in the concurrent findings recorded by the Courts below---Revision was dismissed, in circumstances.

2017 SCMR 608; 2017 SCMR 316 and 2008 CLC 283 distinguished.

2000 SCMR 204; Muhammad Saddique v. Raj Begum and 39 others 2008 CLC 61; Muhammad Amin and others v. Ms. Beevi and others 2007 SCMR 614; Fazla v. Mehr Din and 2 others 1997 SCMR 837; 2003 SCMR 1114 and 2007 SCMR 368 rel.

Shakeel Zada Khan for Petitioner.

Tariq Zaman for Respondent No.4.

2020 M L D 2022

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad, J

MUHAMMAD RIZWAN---Petitioner

Versus

GULFAM and another---Respondents

Criminal Miscellaneous (BCA) No.728-A of 2019, decided on 27th February, 2020.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss. 324, 334 & 34---Attempt to commit qatl-i-amd, itlaf-i-udw and common intention---Bail, cancellation of---Recovery of crime weapon---Positive report of Forensic Laboratory---Scope---Prosecution case was that the accused and co-accused fired at the complainant party as a result of which two persons sustained injuries and left leg of one of them was amputated---Accused and his co-accused were specifically charged in the crime report for causing bullet injuries to the brothers of complainant---Medico-legal report fully supported the version of complainant---Occurrence was also witnessed by neutral witnesses---Injury sustained by one of the victims was on vital part of his body---12 bore rifle was recovered from the personal possession of accused at the time of his arrest and it was sent to the Forensic Laboratory along with the crime empties, recovered from the spot, its report was received in positive---Impugned order reflected that it was not a speaking order---Petition for cancellation of bail was allowed, in circumstances.

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

----S. 497(5)---Bail, cancellation of---Scope---Courts are always slow to cancel the bail, already granted by the court of competent jurisdiction, however, if proper grounds do not exist then the bail is liable to be cancelled.

Ghulam Mustafa Khan Swati for Petitioner.

Rana Muhammad Zubair, A.A.G. for the State.

Munir Hussain Lughmani for Respondent.

2020 M L D 2071

[Peshawar (Abbottabad Bench)]

Before Shakeel Ahmad and Ahmad Ali, JJ

PEHLWAN SHAH and 2 others---Petitioners

Versus

LIAQAT SHAH and 3 others---Respondents

Writ Petition No.352-A of 2014, decided on 18th February, 2020.

Criminal Procedure Code (V of 1898)---

----Ss. 200 & 22-A---Quashing of FIR---Illegal order---Private complaint under S.200, Cr.P.C. was filed against petitioner and on the first date Magistrate directed police to register the case---Petitioner sought quashing of the FIR on the plea that it was registered on illegal order---Validity---Magistrate was not empowered under the law to issue directions to police regarding registration of case---Such powers were only vested with Ex-Officio Justice of Peace under S.22-A, Cr.P.C.---Direction issued by Magistrate to police regarding registration of case was beyond his jurisdiction---Whole proceedings upon which the superstructure was built i.e. registration of case was not sustainable---High Court set aside order passed by Magistrate and quashed the FIR registered against petitioner---Constitutional petition was allowed, in circumstances.

Malik Muhammad Sadiq v. Station House Officer and others 2013 PCr.LJ 1177 rel.

Hamid Faraz Abbasi for Petitioners.

Muhammad Shafique Awan and Raja Muhammad Zubair, A.A.G.for Respondent No.4.

2020 M L D 59

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

RIZWAN---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No.101 of 2019, decided on 20th August, 2019.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9(b) & (c)---Possession of narcotics---Bail, grant of---Borderline case---Completion of investigation---Further inquiry---Scope---Police, on usual patrolling, recovered 1300 grams of charas and 300 grams of crystal from the possession of accused---Allegedly recovered contraband was 1300 grams charas and 300 grams crystal and it was a borderline case between clauses (b) and (c) of S.9 of Control of Narcotic Substances Act, 1997---Quantity of allegedly recovered charas marginally exceeded limit of 1000 grams, under such circumstances Trial Court had to determine whether the maximum punishment would be awarded or not---Where two quantum of sentences were provided in the statute, the lesser had to be considered for the purpose of bail---Question of quantum of sentence, in the present case, fell within the purview of further inquiry---Applicant had been shifted to judicial custody and the witnesses cited in the calendar were police personnel, therefore, the applicant was not required for further investigation nor there was any apprehension of tampering with the prosecution evidence---Medical certificates annexed with the application showed that the applicant was a cancer patient, therefore keeping him behind the bars without proper treatment might be dangerous for his life---Applicant had successfully made out a case calling for further inquiry as envisaged under S.497(2), Cr.P.C.---Petition for grant of bail was accepted.

Naimatullah v. State 2017 MLD 1097 rel.

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

----S. 497---Bail---Where two quantum of sentences are provided in the statute, for the purpose of bail, the lesser was to be considered.

Abdul Rauf Lehri for Applicant.

Abdul Latif Kakar, Additional Prosecutor General for Respondent.

2020 M L D 68

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

ALAMGIR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 244 of 2019, decided on 29th July, 2019.

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

----S. 516-A---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Superdari of vehicle---Scope---Appellant assailed order of Trial Court whereby his application for superdari of vehicle seized as case property was dismissed---Narcotics were recovered from the toolbox of the vehicle which was driven by accused---Appellant was not accused in the case nor the prosecution had brought on record any incriminating material to show the knowledge of appellant in respect of the allegedly recovered narcotics---Narcotics were not recovered from the secret cavities of the vehicle---Appellant, being in possession of valid documents showing his undisputed ownership, was entitled to the custody of the vehicle---Appeal was allowed. (b) Criminal Procedure Code (V of 1898)---

----S. 516-A---Superdari of vehicle used for offence---Scope---Vehicle shall not be confiscated unless it is proved that the owner was aware that his vehicle is being used in the crime.

Allah Ditta v. State 2010 SCMR 1181 rel.

Abdul Sattar Kakar for Appellant.

Tahir Iqbal Khattak, Assistant Attorney General-IV for the State.

2020 M L D 120

[Balochistan]

Before Abdullah Baloch, J

JAMEEL AHMED DASHTI---Petitioner

Versus

ABDUL RASHEED and 13 others---Respondents

Election Petition No. 54 of 2018, decided on 22nd May, 2019.

Elections Act (XXXIII of 2017)---

----Ss. 139 & 143---Election petition---Maintainability---Election for the seat of Member Provincial Assembly---Allegations of illegal and corrupt practices---Proof---Requirements---Only contesting candidates could be made respondents in the election petition and any other party could not be joined as respondent unless otherwise directed by the Election Tribunal---Petitioner in the present petition had arrayed official respondents unnecessarily without permission from Election Tribunal---Present petition was not maintainable, in circumstances---Contention of petitioner was based upon presumption and assumption---No Presiding Officer of any polling station or any of the polling staff was produced before Election Tribunal to substantiate the allegations---Nothing was on record that any returned candidate obtained or procured the assistance of Presiding Officer to secure his election---No inference could be drawn in absence of any concrete evidence that missing ballot books were done in connivance or collusion with the returned candidate---Any careless or deliberate act on the part of any functionary of Election Commission was not enough to nullify the election results---Petitioner had levelled bald allegations against the respondent without any solid and concrete evidence---Names of persons accused of corrupt or illegal practices or illegal act and date and place of commission of such acts or practices were not available on record---Petitioner was bound to prove allegations of rigging and the use of corrupt and illegal practices which he had failed to prove the same---Allegations made in the election petition were not only vague, generalized, non-specific but also did not fulfil the requirements enough to declare the elections of returned candidate to be void---Mere bald allegations of rigging were not sufficient for verification of thumb impression from National Database and Registration Authority---Election petition was dismissed in circumstances.

Pakistan Peoples Party v. Government of Punjab PLD 2014 Lah. 330; Mir Saleem Ahmed Khosa v. Zafarullah Khan Jamali and others 2017 SCMR 664 and Hafeezuddin v. Abdul Razzaq PLD 2016 SC 79 rel.

Malag Dashti, Nadir Ali Chalgari and Bilal Mohsin, Rehan Jakrani and Farooq Ali for Petitioner.

Kamran Murtaza, Noor Jan Buledi and Tahir Ali Baloch for Respondent No.1.

Shai Haq Baloch, Additional A.G. for the State.

Naseer Ahmed, Assistant, ECP.

2020 M L D 202

[Balochistan (Sibi Bench)]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

ABDUL AZIZ and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. (s)84 of 2019, decided on 2nd August, 2019.

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

----Ss. 9(c) & 36---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Possession of narcotics---Report of Government Analysts---Failure of Analysts to mention full protocols of tests applied---Effect---Excise police, on spy information, intercepted the car of accused and recovered five kilograms of charas from the secret cavities of the car---Report of Chemical Examiner did not contain full protocol of tests applied---Report was not in accordance with S.36(1), Control of Narcotic Substances Act, 1997, which was mandatory---Report of Analysts was silent in respect of safe transportation/transmission of narcotic to the Chemical Expert---Statement of police officer who had taken the sample for analysis was not recorded---Report in question was of no evidentiary value---Appeal was allowed, in circumstances.

Ikramullah and others's case 2015 SCMR 1002; Muhammad Yousaf's case 2017 MLD 1471; Waqas Ali's case 2017 YLR 878 and Abdul Ahad's case Criminal Appeal No.368 of 2018 ref.

Khair-ul-Bashir v. State 2019 SCMR 930 and Abdul Ghani v. State 2019 SCMR 608 rel.

Muhammd Shabir Ahmed Rajput for Appellant.

Abdul Karim Malghani for the State.

2020 M L D 233

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

MANZOOR AHMED AKHTER---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 330 and Criminal Revision No. 177 of 2017, decided on 9th August, 2019.

Penal Code (XLV of 1860)---

----Ss. 409, 420, 466, 467, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery of record of court, forgery for valuable security, forged document, using as genuine a forged document, presumption where public servant accepts gratification other than legal remuneration---Appreciation of evidence---Accused was alleged to have produced a fake/forged order of High Court for the release of his pay with allowances---Accused had assailed his conviction under S.364-A, P.P.C. before the High Court, however, his counsel had not pressed the appeal on merits and had requested for moderate reduction in sentence, which request was allowed---Accused, after his release, requested his department to release his outstanding salaries on the ground that his appeal had been allowed by the High Court on the basis of compromise and he was acquitted of the charge but to the contrary his conviction was maintained by High Court---Evidence produced by prosecution established that the accused had got his posting and salaries till his superannuation---Accused had not disputed the acquiring of posting and salaries till his superannuation by means of acquittal order (which was fake)---Conviction and sentence awarded by the Trial Court was maintained to the extent of Ss. 466, 468 & 471, P.P.C. and S.5(2), Prevention of Corruption Act, 1947---Appeal was disposed of accordingly.

1968 SCMR 1126; 1994 PCr.LJ 1116 and PLD 1999 Quetta 95 ref.

Manzoor Ahmed Rehmani for Appellant (in Criminal Appeal No.330 of 2017).

Abdul Latif Kakar, APG and Wajahat Ghaznavi, State Counsel (in Criminal Appeal No.330 of 2017).

Abdul Latif Kakar, APG and Wajahat Ghaznavi, State Counsel for Petitioner (in Criminal Revision Petition No.177 of 2017).

Manzoor Ahmed Rehmani for Respondent/convict (in Criminal Revision Petition No.177 of 2017).

Mullah Muhammad Umar, Divisional Director Education and Abdul Sattar Langove, DEO Sibi, Education Department (in Criminal Revision Petition No.177 of 2017).

2020 M L D 324

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

Messrs RIEGN NUTRO PHARMA (PVT.) LTD. and 2 others---Applicants

Versus

The STATE---Respondent

Criminal Miscellaneous Quashment No.364 of 2019, decided on 21st October, 2019.

Drugs Act (XXXI of 1976)---

----Ss. 7 & 23---Drug Regulatory Authority of Pakistan Act (XXI of 2012), S. 23---Alternative Medicines and Health Products (Enlistment) Rules, 2014, Rr. 2(1)(xxxi), 2(1)(xxxiii) & 2(1)(lxiii)---Criminal Procedure Code (V of 1898), S. 561-A---Quashing of proceedings---Registration of drugs---Sale of unregistered drug---'Food supplements'---'Health products'---'Nutritional supplements'---Scope---Drug Inspector took samples of syrup manufactured by petitioners, chemical analysis of which revealed that it was not substandard---Provincial Quality Control Board granted sanction to the Drug Inspector to file a complaint before the Drug Court for contravention of Ss.23(1)(a)(vii), 27(1)(a) & 34 of Drugs Act, 1976---Petitioners sought their acquittal on the ground that the sample syrup was a non-drug and was a food supplement---Central Licensing and Drugs Regulation Board had exempted food supplements from S. 7 of the Drugs Act, 1976 for the purpose of registration---Matter pertaining to enlistment of the food supplements, dietary supplements, health supplements and nutraceuticals which fell within the jurisdiction of Drug Regulatory Authority of Pakistan and the same could not be dealt with under the provisions of the Drugs Act, 1976---Provincial Quality Control Board had no jurisdiction to sanction prosecution to the Drug Inspector against the petitioners for non-registration of the sample syrup---Proceedings pending before the Drug Court were quashed and the petitioners were acquitted of the charge.

Abdul Zahir for Applicants.

Mir Attaullah Langove, Assistant Attorney General-III (AAG-III) along with Dr. Amber Noreen, Drug Inspector for Respondent.

2020 M L D 426

[Balocshitan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

MUHAMMAD KHAN DURRANI through Attorney---Appellant

Versus

ABDUL ALI DURRANI and 4 others---Respondents

Regular First Appeal No.43 of 2015, decided on 27th August, 2019.

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

----Ss. 42 & 54---Suit for declaration and permanent injunction---Limitation---Allegation of fraud---Proof---Procedure---Contention of plaintiff was that he was owner of suit property---Suit was dismissed by the Trial Court---Validity---Evidence produced on behalf of plaintiff did not substantiate his claim---When a party had alleged fraud then he/she had to prove the allegations and mere verbal assertion would not be beneficial---Present suit was time barred---Plaintiff had failed to rebut evidence produced on behalf of defendants---Where presumption of truth was attached to a document then same could not be discarded unless proved otherwise by convincing and cogent evidence---Evidence produced on behalf of plaintiff was self contradictory and non-confidence inspiring---Plaintiff had not produced any witness of purchase of suit property---Defendants had not produced any evidence but plaintiff was bound to prove his case on the strength of his own evidence and he could not get any benefit from the shortcoming and weakness of defendants' side---Findings recorded by the Trial Court were based on proper appreciation of evidence on record---Appeal was dismissed in circumstances.

Mazloom Hussain v. Abid Hussain PLD 2008 SC 571; Sher Afghan v. Muhammad Rafiq 2012 CLC 1798 and Munawar Shah v. Habib-ur-Rehman 2018 CLC 1901 rel.

(b) Maxim---

----"Dubio secundum Reum Potius Quam secundum actorem litom dori opertet"; where the case is doubtful the decision should be given for the defendant rather than the plaintiff.

Kamran Arshad and Naseebullah Kasi for Appellant.

Ahsan Rafique Rana for Respondents Nos.2 to 4.

2020 M L D 491

[Balochistan ]

Before Rozi Khan Barrech, J

BIBI MOASHARA---Petitioner

Versus

SAHIB JAN and 10 others---Respondents

Civil Revision No. 133 of 2016, decided on 24th September, 2019.

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

----S. 42---Limitation Act (IX of 1908), S. 3 & Art. 120---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for declaration---Limitation---Sale mutation---Proof of---Contention of plaintiff was that impugned mutation was based on fraud and misrepresentation---Suit was dismissed concurrently---Validity---Plaintiff had challenged impugned mutation after lapse of more than thirty four years---Declaratory suit could be filed within a period of six years---Defendants were in possession of the suit property since the impugned mutation---Suit was barred by time, in circumstances---If suit was filed beyond the period of limitation then each day's delay had to be explained---No explanation had been given in the present suit by the plaintiff---Plaintiff had neither specified the date when she came to know with regard to impugned mutation nor any explanation had been given to justify her contention---Mutation entries were made on behalf of predecessor-in-interest of plaintiff who had died---Predecessor-in-interest of plaintiff had not filed any suit to challenge the impugned mutation in his life time---Plaintiff had filed present suit after the death of her predecessor-in-interest and no fraud had been committed by the defendants---Court was to decide the question of limitation first and thereafter proceed to decide the matter on merits---Suit barred by time was to be dismissed even if nobody had raised question of limitation---If proceedings brought before the Court were barred by time, Court could not assume jurisdiction and had no jurisdiction in the matter unless delay was condoned---Disposal of suit on merits alone was not sufficient for a presumption that delay had been condoned---Suit/ plaint should be rejected forthwith even without resorting to the evidence or framing of any issue if same was barred by limitation---Nothing was on record that impugned mutation was collusive and fictitious---No illegality, irregularity, mis-reading or non-reading of evidence had been pointed out in the impugned judgments and decrees passed by the Courts below---Revision was dismissed, in circumstances.

Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153 and Mst. Gul Farosh Jan v. Mehr Angez and 13 others 2012 MLD 1085 rel.

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

----S. 42---Limitation Act (IX of 1908), Art. 120---Suit for declaration---Limitation---Suit for declaration could be filed within six years.

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

----S. 115---Revisional jurisdiction of High Court---Scope---Concurrent findings rendered by the Courts below could not be reversed in revisional jurisdiction unless there was illegality, irregularity, mis-reading or non-reading of evidence.

Iqbal Kasi for Petitioner.

Behlol Kasi for Respondent.

Ahmed Ali Baloch, Additional Advocate General ("A.A.G.") for the State.

2020 M L D 580

[Balochistan]

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

ROZI KHAN and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.201 and Criminal Revision Petition No. 26 of 2018, decided on 16th October, 2019.

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

----Ss. 302(b), 427 & 34---Qatl-i-amd, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Benefit of doubt---Delay of about four hours in lodging the FIR---Effect---Accused was charged for committing murder of brother of the complainant by firing---Report was lodged after four hours of the occurrence---When the deceased succumbed to the injuries on the spot then what prevented the complainant to lodge the report at Levies' station despite the fact that the distance between the Levies' station and crime scene was mentioned to be 35 kilometers---Record revealed that there was a chowki, between the place of occurrence and Levies' station, which created serious doubt in the prosecution case as to why the report was not lodged at Levies' station promptly---Delay in lodging the report could not simply be brushed aside as it assumed great significance and could be attributed to consultation and deleberation---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Ranji Suriya and another v. The State of Maharashtra AIR 1983 SC 810; Allahyar v. The State 1990 SCMR 1134; Mahmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Imran Hussain v. Amir Arshad and 2 others 1997 SCMR 438 and Muhammad Rafique v. The State 2014 SCMR 1698 rel.

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

----Ss. 302(b), 427 & 34---Qatl-i-amd, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Benefit of doubt---Ocular and medical evidence---Contradiction---Unnatural conduct of witnesses---Prosecution case was that the accused persons smashed 36 panels of complainant party and accused made firing upon the brother of the complainant, due to which he died---Ocular account of the occurrence had been furnished by three witnesses including complainant---Record was totally silent in respect of shifting of dead body to hospital or the Levies' station as none of the eyewitnesses stated anything in that regard---Complainant stated that ten minutes after the occurrence, they left the place of occurrence and went to Levies' station---Witness stated during cross-examination that when they reached the place of occurrence no private persons were accompanying them, meaning thereby that complainant and other eyewitnesses left the dead body of the deceased at the spot alone---Conduct of complainant and eyewitnesses suggested that at the time of occurrence they were not present at the spot---If they were present on the spot at the relevant time they must have taken the dead body either to hospital or to Levies' station, which admittedly they did not do---Witnesses stated that they remained at Levies' station till 12.00 p.m., and thereafter went to their houses and the dead body of the deceased was lying at Levies' station and on the next morning they came to the Levies' station and took the dead body of the deceased to hospital for post-mortem---Leaving the dead body of deceased at Levies' station for the whole night for no justifiable reason did not appeal to the prudent mind---Record transpired that the dead body of the deceased was examined with delay of seventeen hours, which had given rise to inference that the incident was not reported as stated by the prosecution---Allegedly, deceased received injuries on his right thigh and on his head, due to which he succumbed to the injuries---Contrarily, medical certificate of deceased showed that deceased received incised wounds at temporal region with depressed skull and at left occipital region---Medical report also showed that deceased received firearm injuries on his right medial thigh---Complainant, in order to bring the case of the prosecution in line with post-mortem report, recorded his supplementary statement, wherein he stated that the accused also attacked upon the deceased with knives and gave blows on his head and further stated that absconding accused attacked upon the deceased with sticks---Said aspect of the matter cast serious doubt in prosecution's case---Complainant was brother and witnesses were cousins of the deceased---None of the witnesses received even a single injury and they went unhurt to the Levies' station when they were totally at the mercy of accused---Inference could be that the incident did not take place in the mode and manner as it was alleged---Complainant and witnesses did not make any efforts to save the deceased---Witnesses neither caught hold of the accused, who were almost equal in number nor did they make any effort to hit them---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Muhammad Khan and another v. The State 1999 SCMR 1220 rel.

(c) Criminal trial---

----Witness---Related witness---Statement of related witness---Reliance---Scope---Evidence of a related witness could not be discarded on the ground of his being related to the victim but if it was found that the testimony of a related witness had no corroboration from attending circumstances of the case or the conduct shown by him at the time of occurrence or just thereafter was such which could not be expected from a prudent person, in such circumstances the evidence furnished by a related witness could be discarded.

(d) Criminal trial---

----Benefit of doubt---Principle---Single doubt if found reasonable would be sufficient to acquit accused.

Riaz Masih alias Mithoo v. State 1995 SCMR 1730; Bagh Ali v. State PLD 1973 SC 321 and Muhammad Luqman v. The State PLD 1970 SC 10 rel.

Syed Ayaz Zahoor and Adnan Ejaz for Appellants.

Saleem Lashari for the Complainant.

Sudheer Ahmed, D.P.G. for the State.

2020 M L D 659

[Balochistan]

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

SANAULLAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.352 and Murder Reference No. 8 of 2018, decided on 28th August, 2019.

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

----S. 302(b)---Qatl-i-amd---Juvenile Justice System Ordinance (XXII of 2000), S.7---Qatl-i-amd---Age of accused, determination of--- Accused was charged for committing murder of brother of the complainant---Trial Court sent a letter to the Medical Board for determination of age of the accused---Subsequently, on direction of the Trial Court, Medical Board, after examining the accused, issued a certificate, according to which his age was about 17 years---Validity---Once it was brought to the knowledge of the Trial Court that the accused was a child under S. 2(b) of the Juvenile Justice System Act, 2018, his trial was to proceed under S. 4 thereof rather than under ordinary law---Conviction and sentences of the accused tantamounted to throwing him in prison with adults in violation of S.16 of Juvenile Justice System Act, 2018---Section 16 of the Act provided that the accused being juvenile could not be awarded death; similarly accused could not be ordered to labour etc. in view of the clear bar contained under the law, which was applicable to the facts and circumstances of the present case---Trial Court had wrongly awarded death punishment to the accused---Appeal was allowed and accused was acquitted by setting aside conviction and sentence awarded by the Trial Court, in circumstances.

(b) Criminal trial---

----Circumstantial evidence---Scope---If the case was based on circumstantial evidence, the prosecution was to ensure that the circumstances from which the inference of guilt was drawn, had been firmly established---Circumstances must have unerringly pointed towards the guilt of the accused and when taken cumulatively, same should form a chain so complete, that it must demonstrate in all probabilities that the crime was committed by the accused.

Sheikh Muhammad Amjad v. State PLD 2003 SC 704 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Last seen evidence---Scope---Accused was charged for committing murder of brother of the complainant---Last seen evidence had been furnished by one witness---Said witness had stated that on the day of incident he was present with deceased in his house---Accused asked the deceased to go to place "P"---Deceased took his car and went while witness was left at cemetery and accused and deceased went away---Said story narrated by witness had neither been corroborated from the FIR nor from the statement of the accused recorded under S. 164, Cr.P.C., nor the prosecution produced any other corroborating evidence in that behalf---Version of said witness was an afterthought and seemed concocted and fabricated one---If the witness had seen the accused on the very first day of missing the deceased he would have definitely disclosed before the police and he had inquired from the accused about the whereabouts of the deceased but he did not lodge the report on the first day rather his statement was recorded by the police after three days from missing of the deceased---Statement of said witness did not find any support from alleged confessional statement of the accused and other piece of evidence---Belated statement of witness regarding last seen of the deceased in the company of the accused was unbelievable and not trustworthy---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

(d) Criminal trial---

----Last seen evidence---Evidentiary value---Last seen evidence was the weakest type of evidence unless corroborated by the other strong pieces of evidence---Punishment of capital charge could not be based on evidence of last seen.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of brother of the complainant---Complainant alleged in his report that deceased was kidnapped for ransom and accused demanded Rs. 25,00,000/- for his release---Record revealed that neither the complainant informed the police about receiving of a phone call for ransom demand nor lodged the report in respect of the deceased---Complainant lodged the report on 16.12.2013 when the dead body of the deceased was lying in civil hospital---Even otherwise, the complainant did not collect the record of the telephone from which he received call, neither he approached the police for collecting the Call Data Record about receiving calls---Witnesses, who were allegedly sitting with the complainant at the time of receiving call also did not inform the police or Levies Force about receiving of the said call---Record was silent as to what was the occasion for the said witnesses to have been present with complainant at the time of call from the unknown person---No explanation whatsoever had been rendered by the prosecution---Alleged call for ransom, in circumstances, appeared to be fabricated and cooked story, simply because no voice data of the phone call was either by the police or Levies Force or produced by the complainant party---Testimony of the said witness was neither truth-worthy nor confidence inspiring---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Azeem Khan and another v. Mujahid Khan 2016 SCMR 274 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of about more than two days in lodging FIR---Effect---Occurrence took place on 14.12.2013 and the FIR was lodged on 16.12.2013 at 10:00 pm.---Record revealed that the complainant knew about the occurrence on 14.12.2013---Complainant in his report as well as in his statement stated that on 15.12.2013 when they came to know that juvenile accused was at his home, they met him who was very nervous and could not satisfactorily answer about the whereabouts of the deceased, therefore, they handed him over to police, whereby accused disclosed that he and absconding accused put the deceased to death on account of non-payment of ransom and threw his body---Statements of complainant and Investigating Officer revealed that the accused was handed over to Levis Force on 15.12.2013 and the Investigating Officer stated that when police handed over the accused to him they told that the accused was involved in murder of deceased meaning thereby that the complainant and Investigating Officer and the Police Officials of police were having knowledge about missing of the deceased and his murder on 15.12.2013 but despite that the complainant did not lodge the report and he lodged the report on 16.12.2013 at 10:00 p.m.---Lodging of the FIR with such delay had not been plausibly explained by the prosecution as well as complainant, which created reasonable doubt in the prosecution case---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127 rel.

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

----S. 164---Confessional statement of accused---Procedure---Before recording the confessional statement of the accused, the Judicial Magistrate was to observe all the mandatory precautions as per High Court Rules and Orders and Procedure, so that all signs of fear inculcated by the investigation agency in the mind of the accused were to be shed out.

Azeem Khan and another v. Mujahid Khan 2016 SCMR 274 rel.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Juvenile Justice System Ordinance (XXII of 2000), S. 2(b)---Qatl-i-amd---Appreciation of evidence---Recording statement of juvenile accused---Scope---Accused was charged for committing murder of brother of the complainant---Record showed that the accused was arrested on 15.12.2013 before lodging the FIR, which was registered on 16.12.2013 and produced him before the Judicial Magistrate on 23.12.2013---Accused, being a minor, was provided no opportunity of counselling neither by his guardian nor by a lawyer---Judicial Magistrate did not state a single word in his statement as well as in the certificate issued by him that either any offer was made to the appellant for counselling---Judicial Magistrate did not comply in letter and spirit the procedure of recording judicial confession---Judicial Magistrate did not explain to the accused that who he was and even he was not told that he would not be handed over to police after his confession---Indeed, the Judicial Magistrate after recording the confession, handed over the accused to the same levies officials, who produced him for purpose of judicial remand---Said fact was also confirmed by Investigating Officer, who conducted investigation of the case---Confession of the accused was not voluntary, in circumstances---Confession of the minor was to be assessed on the same touchstone as to statement of a child witness---Child witness was brought to the dock by relatives while on the contrary child accused was brought to the court by Police Officials for recording his confessional statement and possibility of tutoring and police fear was always there---Record further transpired that the police and Levies Force wrongly confined the accused before lodging of the FIR without taking remand from the concerned Judicial Magistrate---Requisite care and vigilance had not been taken by the Judicial Magistrate before recording confessional statement of the appellant---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Hashim Qasim and another v. The State 2017 SCMR 986; State through Advocate General Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1; Abdul Haleem v. The State 1984 PCr.LJ 611 and Abdul Hameed v The State PLD 1980 Pesh. 25 rel.

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

----S. 164---Confessional statement---Delay in recording confessional statement---Effect---Confessional statement recorded with delay of eight days after the arrest of accused---Such a delay having not been plausibly explained by the prosecution, could not be accepted as confidence inspiring against the accused.

Naqeebullah's case PLD 1978 SC 21; Khalid Javed and another v. The State 2003 SCMR 1419; Shoukat Saeed v. The State PLD 1978 Quetta 1 and Patoo and another v. The State 2012 MLD 1358 rel.

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

----S. 164---Confessional statement of accused---Scope---Conviction could not be based only on the confessional statement of the accused unless the prosecution was able to substantiate its case against the accused by trustworthy and inspiring evidence.

Muhammad Ismail and others v. The State 2017 SCMR 898 rel.

Muhammad Ashraf Bazai and Muhammad Shabbir Rajpoot for Appellant.

Sudheer Ahmed, D.P.G. for the State.

2020 M L D 696

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

UMAR MUKHTAR---Appellant

Versus

The STATE through Director General Regional Accountability Bureau and others---Respondents

Criminal Ehtesab Appeals Nos. 4, 5 and 6 of 2014, decided on 27th August, 2019.

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

----S. 9(a)(v)(vi)---Misuse of authority and illegal gains---Appreciation of evidence---Embezzlement of wheat quota---Proof---Provincial Government, duty of---Provincial Government decided that 139 fair price shops recommended by people's/representative of the city would sell Atta (flour) to general public on controlled rates and District Administration was to monitor sale as per policy decision---Accused persons were convicted and sentenced to imprisonment for embezzling flour to be distributed to fair price shops and misuse of authority causing shortage of flour---Validity---Policy indicated that administration was responsible for any shortcoming and when any grievance arose, people were to approach administration---Prosecution neither inquired from administration nor recorded statements of administrative officers to ascertain as to whether any embezzlement was made or authority was misused---Prosecution, during investigation, did not record statement of fair price shop owner and there was no basis on which prosecution assumed loss caused to government exchequer by accused persons---No evidence was available to prove that wheat was misappropriated or sold to any person by misusing authority by the officials---Investigating officer did not record statement of complainant and none of the prosecution witnesses stated against conduct, behaviour as well as criminal intent of accused persons---No evidence was available on record to establish monetary benefit ever extended to accused and case of prosecution lay on presumptions and assumptions---High Court set aside conviction and sentence awarded to accused persons by Trial Court as burden of proof lay on prosecution and prosecution failed to prove beyond reasonable doubt that accused persons misused authority and caused loss to government exchequer and willfully avoided to exercise authority to prevent loss---Appeal was allowed in circumstances.

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

----Ss. 9(a)(v) & 14---Allegation of misuse of authority---Assets beyond means---Presumption---Scope---Unless misuse of authority under S. 9(a)(v) of National Accountability Ordinance, 1999 is established, accused cannot be called upon to prove his "innocence" within meaning of S. 14 of National Accountability Ordinance, 1999.

Concise Oxford Dictionary Seventh Edition and Black's Law Dictionary (9th) Edition rel.

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

----S. 9(a)(vi)---Misuse of authority---Precondition---Prosecution was bound to prove essential elements of mens rea and intention to commit an offence under S.9(a)(vi) of National Accountability Ordinance, 1999---If any of said two element are missing, offence is not committed.

The State v. Idrees Ghauri 2008 SCMR 1118 rel.

Muhammad Akram Shah for Appellant (in Criminal Ehtesab Appeal No.4 of 2014).

Jaffar Raza, Special Prosecutor NAB for the State (in Criminal Ehtesab Appeals Nos.4, 5 and 6 of 2014).

Muhammad Khalid Kakar for Appellant (in Criminal Ehtesab Appeal No.5 of 2014).

Adnan Ejaz Sheikh for Appellant (in Criminal Ehtesab Appeal No.6 of 2014).

2020 M L D 758

[Balochistan]

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

SADIQ---Appellant

Versus

The STATE through Prosecutor General, Quetta---Respondent

Criminal Appeal No. 18 of 2016, decided on 17th September, 2019.

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

----Ss. 7 & 21-L---Criminal Procedure Code (V of 1898), Ss. 87 & 88---Summary trial---Appreciation of evidence---Punishment for absconder---First Information Report was lodged against accused persons for qatl-i-amd, attempt to qatl-i-amd and rioting armed with deadly weapons---Trial Court acquitted accused persons but absconding accused was convicted and sentenced to various counts of imprisonment in summary proceedings---Validity---No charge was framed against absconding accused under S. 21-L of Anti-Terrorism Act, 1997 and no evidence was recorded to prove ingredients of S.21-L of Anti-Terrorism Act, 1997---Trial Court also failed to formulate a point for determination regarding offence under S.21-L of Anti-Terrorism Act, 1997 in judgment---No evidence was available to show that absconsion of accused was intentional and no finding was recorded by Trial Court to effect that absconding accused was fugitive of law---Trial Court in a cursory manner convicted and sentenced accused under S.21-L, Anti-Terrorism Act, 1997 and procedure adopted by Trial Court in convicting and sentencing accused under S. 21-L of Anti-Terrorism Act, 1997 was illegal---High Court set aside conviction and sentence awarded to accused by Trial Court and acquitted him of the charge---Appeal was allowed in circumstances.

Mir Akhlaq Ahmed and others v. The State 2008 SCMR 951 rel.

Syed Ayaz Zahoor and Sohail Rajpoot for Appellant.

Ahsan Rafiq Rana and Abdul Karim Yousufzai for the Complainant.

Ameer Hamza Mengal, DPG along with Wajahat Khan Ghaznavi, State Counsel.

2020 M L D 783

[Balochistan]

Before Rozi Khan Barrech, J

AMEER BAKHSH---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 296 of 2019, decided on 20th September, 2019.

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

----S. 498---Penal Code (XLV of 1860), Ss. 302, 109 & 37---Qatl-i-amd, abetment, co-operation by doing one of several acts constituting an offence---Pre-arrest bail, grant of---Further inquiry---Accused/applicant not present on the spot---Effect--- Allegation in the FIR was that the co-accused persons committed the murder at the instigation of accused/applicant, seeking pre-arrest bail---Specific role was attributed to the co-accused who allegedly made firing upon the deceased---Accused/applicant was not present at the time of occurrence---Prosecution had not alleged that the co-accused consulted or conspired with the accused/applicant---Prima facie no evidence was available on record that the co-accused had fired upon the deceased at the instigation or abetment of accused/applicant---Accused/ applicant had made out a case for further inquiry and deserved confirmation of ad-interim pre-arrest bail, which was accordingly granted.

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

----S. 498--Pre-arrest bail---Direct approach to High Court---Exceptional circumstances---Pendency of application for transfer of case to another district---Scope---Accused in exceptional circumstances, where his life was under threat in case of directly approaching the trial Court, could approach High Court for grant of pre-arrest bail---Tribal enmity existed between both the parties and the accused had also filed application for transfer of case to another district, thus a genuine reason existed in favour of the accused to directly approach the High Court.

Rais Wazir Ahmed v. The State 2004 SCMR 1167 rel.

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

----Ss. 498 & 497---Pre-arrest bail---Bail---Principles---Scope--- Extraordinary relief of pre-arrest bail is meant for innocent persons to save them from humiliation and disgrace at the hands of police---Purpose of such a remedy is to protect liberty and reputation of citizens, particularly in a case where the circumstances reflect that the case is one of further inquiry---Power to grant bail under S. 498, Cr.P.C. is not additional to or independent to S. 497, Cr.P.C. and even while granting pre-arrest bail the provisions contained under S. 497, Cr.P.C. are also to be kept in mind---Grant of bail or its refusal is essentially a matter of discretion to be exercised judiciously not arbitrarily and the facts of each and every case have to be considered separately and independently---Reasonable and plausible ground must exist for grant of bail before arrest---Concept of pre-arrest bail was developed on three presumptions, firstly the accused is presumed to be innocent till he is found guilty, secondly the accused should have a right to prepare his defence and prove his innocence before the Trial Court and thirdly the accused should not be punished before the findings of his conviction are rendered by the court.

Rahib Buledi for Applicant.

Wajahat Khan Ghazanavi, State Counsel for P.G. for the State.

2020 M L D 841

[Balochistan (Sibi Bench)]

Before Hashim Khan Kakar and Abdul Hameed Baloch, JJ

ANWAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.(s) 4 and Murder Reference No.(s) 1 of 2016, decided on 29th October, 2019.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention--Appreciation of evidence---Benefit of doubt---Night-time occurrence---Source of light---Scope---Contradictory evidence---Accused, along with others, were alleged to have entered the house of complainant at night and murdered two of his sons---Statements of witnesses revealed that the accused entered into the house of complainant at a time when they were sleeping and they woke up on hearing the noise of firing which meant that they had not seen when the first fireshot was made---Witnesses were resident of the same house but their statements were not in line with each other---Witnesses stated that the accused had continuously fired for 10/15 minutes but only 15 empties were secured from the spot---Allegation of prosecution was that the accused came on motorcycle but no motorcycle was recovered---Witnesses admitted that several people resided in their neighbourhood but none of them was cited as witness---Witnesses stated that after firing accused shouted that none would be spared but did not harm any witness---Witnesses narrated that they identified the accused in the light of the bulb but no bulb was shown in the site inspection---Prosecution, in circumstances, had failed to prove its case against the accused beyond any shadow of doubt, therefore, impugned judgment was set aside and the accused was acquitted of the charge---Appeal was allowed.

Muhammad Salah v. State 2018 YLR Note 284; Haroon Shafique v. The State 2018 SCMR 2118; Khalid alias Khalidi v. The State 2012 SCMR 327 and Rashid Khan v. The State 2017 SCMR 564 ref.

Muhammad Akram v. The State 2009 SCMR 23 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention--Appreciation of evidence---Benefit of doubt---Contradiction in ocular and medical evidence---Effect---Accused, along with others, was alleged to have entered the house of complainant at night and murdered two of his sons---Allegation against accused persons was that they were armed with shotguns---Medico Legal Certificates revealed that each deceased person had sustained only one bullet injury and that they had not sustained pellet injuries---Prosecution, in circumstances had failed to prove its case against the accused beyond any shadow of doubt, therefore, impugned judgment was set aside and the accused was acquitted of the charge---Appeal was allowed.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention--Appreciation of evidence---Benefit of doubt---Recovery of weapon---Delay in sending the recovered weapon---Sending of empties along with weapon for forensic analysis---Effect---Accused, along with others, was alleged to have entered the house of complainant at night and murdered two of his sons---Accused had allegedly got recovered the crime weapon from an abandoned place with a delay of more than 12 days---Prosecution dispatched the crime weapon and casings together for forensic analysis after more than one month without any reason---Prosecution had failed to explain as to where the recovered material was kept and in whose custody---Sending of firearm along with empties lost its evidentiary value, as such report could not be considered as corroborative evidence---Prosecution, in circumstances, had failed to prove its case against the accused beyond any shadow of doubt, therefore, impugned judgment was set aside and the accused was acquitted of the charge---Appeal was allowed.

Haroon Shafique v. The State 2018 SCMR 2118 ref.

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

----Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, common intention--Appreciation of evidence---Benefit of doubt---Identification parade conducted by police officer---Effect---Accused, along with others, was alleged to have entered the house of complainant at night and murdered two of his sons---Accused persons were nominated in the FIR with parentage and specific role, despite that identification parade of accused was conducted---Conducting of identification parade meant that the accused was not known to the complainant and other witnesses---Had the accused been identified during firing then the identification parade could not have been conducted---Identification parade was supervised by DSP (Deputy Superintendent of Police) instead of a Judicial Magistrate which was not permissible---Statements of occular witnesses were liable to be discarded, in circumstances---Accused was acquitted of the charge and appeal was allowed.

Khalid alias Khalidi v. The State 2012 SCMR 327 ref.

Muhammad Sadiq Ghuman for Appellant.

Abdul Mateen, Deputy Prosecutor General for the State.

2020 M L D 896

[Balochistan (Sibi Bench)]

Before Abdul Hameed Baloch, J

Haji ABDUL SATTAR and 2 others---Petitioners

Versus

Mst. MEHNAZ and 7 others---Respondents

Civil Revision Petition No. (s) 37 of 2015, decided on 20th November, 2019.

(a) Gift---

----Oral gift---Proof---Requirements---Contention of plaintiffs was that they had not gifted suit property to the defendant---Suit was decreed concurrently---Validity---Defendant being beneficiary was bound to prove as to when plaintiffs had orally gifted him the suit property---Evidence of donee was silent with regard to the fact when suit property was gifted in his favour---Plaintiffs did not appear before the Revenue Officer and no signatures of donors were available on the gift mutation---Suit property had been transferred fraudulently in the record of right without the knowledge of the plaintiffs---When any act had been done for nefarious design then no legal sanctity could be attached to such act---Defendant had failed to prove that plaintiffs had gifted the suit property in his favour---Where an act was done illegally then limitation did not run---Material portion of statement of witnesses of plaintiffs was not denied by the defendant and same was to be deemed to be admitted---Plaintiffs had failed to point out any illegally or irregularity in the impugned judgments and decrees passed by the Courts below---Revision was dismissed, in circumstances. [pp. 899, 900] A, B, C, D, E & F

Naveed Akram v. Muhammad Anwar 2019 SCMR 1095; Jan Muhammad v. Mulla Abdul Rehman 1999 CLC 266 and Kanwal Nain v. Fateh Khan PLD 1983 SC 53 rel.

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

----S. 115---Revisional jurisdiction of High Court---Scope---High Court while exercising revisional jurisdiction could not reopen or dilate upon merits of the case and could interfere only when the conclusion drawn by the Courts below was based on mis-reading or non-reading of evidence or was perverse and fanciful---High Court had to confine itself only to law point involved in the matter or any portion of evidence which was overlooked by the Courts below.

Kanwal Nain v. Fateh Khan PLD 1983 SC 53 rel.

(c) Limitation---

----Where an act was done illegally then limitation did not run.

Ahsan Rafiq Rana for Petitioners.

Ghulam Mustafa Buzdar and Shahid Baloch, Assistant Advocate General for official Respondents.

2020 M L D 930

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

MUHAMMAD DEEDAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 83 of 2019, decided on 26th August, 2019.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.6---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Contradiction in statements of witnesses---Delay in sending recovered samples to the Forensic Science Laboratory---Chain of safe custody---Levies force was alleged to have conducted raid and recovered 100 kilograms of charas from the secret cavities of the vehicle driven by accused---Prosecution case was that after recovery of 100 packets of charas, ten grams charas from each packet was extracted and sealed into separate parcels for chemical analysis, while rest of the charas was sealed in a separate parcel at the spot---Prosecution witness negated the version of prosecution during cross-examination---Prosecutoin had failed to bring on record the registration documents of the vehicle and failed to prove connection of the accused with the vehicle---Sample was received by the Forensic Science Laboratory after delay of six days---Safe custody of allegedly recovered contraband till its receipt in the Forensic Science Laboratory could not be reconciled from the record---Chain of custody, safe custody and safe transmission was altogether missing---Prosecution had not complied with R.6 of Control of Narcotic Substances (Government Analysts) Rules, 2001 as it had failed to provide full protocols of test applied---Appeal was allowed and the judgment passed by Trial Court was set aside, in circumstances.

Minhaj Khan v. State 2019 SCMR 326; Ghulam Sarwar v. State 2015 PCr.L.J 1767 and Khair-ul-Bashar v. State 2019 SCMR 930 ref.

Muhammad Zahid for Appellant.

Abdul Qahir Kakar, State Counsel.

2020 M L D 967

[Balochistan]

Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ

MUHAMMAD JAFFAR---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 298 and Murder Reference No. 18 of 2015, decided on 21st October, 2019.

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

----Ss. 302(b) & 376(2)---Qatl-i-amd, rape---Appreciation of evidence---Ocular and medical evidence---Corroboration---Sentence, reduction in---Accused was charged for committing murder of two ladies after their rape---Record showed that mother of one of the deceased lady had brought on record the past relations of the deceased with accused---Medical Officer who examined the dead bodies of the victims had opined the cause of death as suffocation and strangulation while the private parts of both the deceased showed that they were subjected to forcible sexual intercourse and raped from both sides---Medical Officer who carried out the medical examination of the accused had opined that the accused was potent and able to perform act of zina---Besides, the semen samples of the accused were also taken and the same were sent to Forensic Science Laboratory for examination along with the shalwar, qameez and chaddar of deceased as well as a piece of cloth---Forensic Science Laboratory issued report and opined that the said articles excluding the chaddar of deceased were stained with human sperm---Multiple bruises on the persons of both the deceased would reflect not only their sexual assault and brutal murder, but also their attempt to rescue themselves from the clutches of the culprits---Circumstances established that the prosecution had succeeded in proving the charge against the accused---Three accused persons including the accused had been booked in the crime---Except the accused, the remaining accused persons were absconding, hence their pleas were yet to come on record---One of the deceased had kept illicit relations with the accused and absconding accused out of her free will and consent, therefore, awarding of capital punishment to the accused was unwarranted---While upholding the conviction of accused under Ss. 376(2) & 302, P.P.C., his sentence of death was converted into imprisonment for life---Appeal was dismissed with said modification.

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

----Ss. 302(b) & 376(2)---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i-amd, rape---Appreciation of evidence---Sentence, reduction in---Disclosure by accused---Scope---Accused was charged for committing murder of two ladies after their rape---Accused had disclosed that he had past illicit relations with the deceased lady and he used to call the deceased in a garden situated backside of her house and committed zina with her on many occasions, on the day of occurrence deceased was called on backside ground of her house, who along with her cousin/ deceased came over there---As per plan both were taken to the baitak of absconding accused---Accused along with absconding accused committed zina with them for twelve days, whereafter, accused along with absconding accused consulted that if the deceased were left alive, the allegations of siya kari would be levelled against them, as such, they planned to commit their murder---Accused thus confirmed that he had provided all the information of the crime in detail---Accused disclosed the name of his co-accomplices and the place of occurrence, which facts earlier were not in the knowledge of the prosecution---Accused in the said disclosure had also disclosed the manner in which the deceased were picked in a vehicle and were taken to the place of occurrence---Accused had also brought on record the manner in which the deceased were murdered by strangulation and such fact had also been corroborated by medical evidence---Nothing had come on record that the disclosure of the accused was the result of coercion, undue influence rather the facts and circumstances of the case would disclose that the same was voluntary, thus the disclosure of the accused was admissible---While upholding the conviction of accused under Ss. 376(2) & 302, P.P.C., his sentence of death was converted into imprisonment for life---Appeal was dismissed with said modification.

Muhammad Amjad v. The State PLD 2003 SC 704 and Zakir Khan and others v. The State 1995 SCMR 1793 rel.

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

----Ss. 302(b) & 376(2)---Criminal Procedure Code (V of 1898), S.164---Qatl-i-amd, rape---Appreciation of evidence---Sentences reduction in---Confessional statement of accused---Scope---Confessional statement of the accused was recorded under S. 164, Cr.P.C. by the Judicial Magistrate---Judicial Magistrate had fulfilled all the legal requirements for recording confessional statement---Contents of such confession had fully been corroborated by the disclosure of the accused---Perusal of confessional statement of the accused confirmed that the same was recorded without any coercion, pressure, torture or blackmailing rather the accused realized his shamefaced act and due to embarrassment, he immediately agreed to record his confessional statement---Confessional statement was thus recorded in accordance with law, voluntarily and truly without any fear or torture---While upholding the conviction of accused under Ss. 376(2) & 302, P.P.C., his sentence of death was converted into imprisonment for life---Appeal was dismissed with said modification.

Hashim Qasim v. The State 2017 SCMR 986 rel.

Obaidullah Quresh for Appellant.

Habibullah Gul, D.P.G. for the State.

Ali Ahmed Lehri for the Complainant.

2020 M L D 1040

[Balochistan]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

JANAN alias JANAK---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 75 of 2017 and Criminal Revision No. 12 of 2017, decided on 11th December, 2019.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd---Appreciation of evidence---Prompt FIR---Motive, not disclosed---Examination of witnesses by the police on the day of occurrence---Effect---Accused was alleged to have murdered the son of complainant---Eye-witnesses of the occurrence had correctly stated the date, day, time, place and manner in which the occurrence had taken place; had identified the accused in the Trial Court; were independent, natural and truthful; were neither relatives of the deceased nor were they inimical towards the accused; were residents of the same vicinity; were examined under S.161, Cr.P.C. by the investigating officer on the same date and were duly named in the fard-e-bayan which formed basis of the promptly lodged FIR wherein accused was nominated---Medical evidence was in complete harmony with the ocular testimony---Real cause of the occurrence was not disclosed by either of the sides---Appeal was dismissed.

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

----S. 302(b)---Qatl-i-amd---Recovery of weapon---Scope---When neither the recovered crime weapon was sent to the Forensic Laboratory nor blood was found on the same nor was it recovered from the exclusive possession of the accused; High Court held that such piece of evidence was of no help to the prosecution's case.

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

----S. 302(b)---Qatl-i-amd---Motive---Scope---Motive is not a necessary component of crime, the weakness or absence of motive is not a factor to be essentially considered for the purpose of acquittal, when otherwise medical, ocular and direct evidence is available on record to prove the charge.

Muhammad Saeed and 4 others v. Haq Nawaz Khurram and 3 others PLD 2008 SC 416 ref.

Muhammad Latif alias Tifa v. The State 2008 SCMR 1106 rel.

(d) Criminal trial---

----Sentence---Scope---When an offence is proved, it has to be met with the maximum sentence provided therefor, however, no yardstick exists to restrict or curb the discretion of the Trial Court while passing the sentence---Circumstances of each case justify the severity or leniency in passing the sentence.

Kamal Kakar, Ilyas Mughal and Abdullah Kurd for Appellant (in Criminal Appeal No. 75 of 2017).

Munir Sikandar and Noor Bakhsh Baloch for the Complainant (in Criminal Appeal No. 75 of 2017).

Habibullah Gul, Additional Prosecutor General ("APG") and Wajahat Khan Ghaznavi, State Counsel for PG for the State (in Criminal Appeal No. 75 of 2017).

Munir Sikandar and Noor Bakhsh Baloch for the Petitioner (in Criminal Revision No. 12 of 2017).

Kamal Kakar, Ilyas Mughal and Abdullah Kurd for Respondent No.1 (in Criminal Revision No. 12 of 2017).

Habibullah Gul, Additional Prosecutor General ("APG") and Wajahat Khan Ghaznavi, State Counsel for PG for the State (in Criminal Revision No. 12 of 2017).

2020 M L D 1071

[Balochistan]

Before Abdul Hameed Baloch, J

NOOR MUHAMMAD---Applicant

Versus

The STATE---Respondent

Criminal Transfer Application No. 344 of 2019, decided on 16th August, 2019.

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

----S. 526---Transfer of case---Allegation of sending threatening messages---Scope---Applicant sought transfer of his case from one district to another on the grounds that he was Minister of the Province and that serious threats of dire consequences had been extended to him by the complainant---Applicant had alleged the threatening messages from the complainant but he had not produced copies of the messages or report from the concerned quarter---Mere mentioning in the application that threatening messages were delivered, without cogent reasons, could not be considered---Applicant had not produced any convincing material nor mentioned such authority to which he approached to lodge the complaint---Simply on apprehension of the applicant for danger to his life a murder case could not be transferred---Reason given by the applicant for his security had no sanctity---Application, being devoid of merits, was dismissed.

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

----S. 526---Transfer of case---Scope---Transfer of case cannot be claimed as a matter of routine or at the wish of the parties unless it is apparent on the face of record that parties seeking the transfer cannot get fair and just treatment or trial.

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

----S. 526---Transfer of case---Scope---Case not to be transferred from the court of competent jurisdiction unless the allegations/grounds seeking transfer of the case are supported by strong cogent reasons or convincing evidence.

Altaf Hussain v. State PLD 2014 Sindh 287 ref.

Kamran Murtaza for Applicant.

Wajahat Ali Ghaznavi for the State.

None present for the Complainant.

2020 M L D 1118

[Balochistan]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

ABDUL KHALIQ---Petitioner

Versus

ADDITIONAL DISTRICT AND SESSIONS JUDGE-IV and 2 others---Respondents

Constitution Petition No.601 of 2018, decided on 29th October, 2019.

Family Courts Act (XXXV of 1964)---

----Ss. 14 & 25---Guardians and Wards Act (VIII of 1890), Ss. 7, 47 & 4(5)---Petition for appointment as guardian---Family Court deemed to be a District Court for purposes of Guardians and Wards Act, 1890---Petitioner's petition for appointment as guardian of the minor was dismissed by the Guardian Judge---Appeal filed thereagainst was dismissed by District Judge in view of S.47 of Guardians and Wards Act, 1890---Validity---Section 4(5) of Guardians and Wards Act, 1890 had to be read with S.25 of Family Courts Act, 1964, which deemed the Family Court to be a District Court for the purposes of Guardians and Wards Act, 1890---Matters pertaining to guardianship and custody of minors laid within the exclusive jurisdiction of Family Court, who while dealing with the matter had to adopt the procedure laid down in Guardians and Wards Act, 1890---Order passed by Family Court did not amount to an order of a District Judge nor right of appeal became available before High Court rather the appeal had to be preferred under S.14 of the Family Courts Act, 1964 which clearly described the forum of appeal---Petition for appointment of guardian was heard and decided by the Family Court not having the status of a District Judge, therefore, the appeal had to be filed before a District Judge---Constitutional petition was allowed and the appellate court was directed to decide the appeal on merits.

Petitioner in person.

Muhammad Ibrahim Lehri and Muhammad Ali Rakhshani for Respondent No.3.

2020 M L D 1267

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ

ABDUL KABEER---Appellant

Versus

The STATE ---Respondent

Criminal Appeal No.(s) 9 of 2018 and Criminal Revision Petition No.(s) 18 of 2018, decided on 11th October, 2019.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay of about one day in lodging the FIR---Effect---Prosecution case was that accused persons made firing upon the brother of complainant, who received bullet injuries, set him at fire, due to which he died at the spot---Motive for the incident was old enmity---Record showed that FIR was lodged with delay of one day; distance of place of occurrence being half kilometre from the police station, prosecution had failed to explain the delay---Delay in lodging of FIR created suspicion about its credibility, as such consultation and deliberation on the part of the complainant could not be ruled out---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court.

Akhtar Ali v. State 2008 SCMR 6 rel.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Contradiction in the statement of witnesses---Unnatural conduct of complainant---Chance witness---Effect---Prosecution case was that the accused persons made firing upon the brother of complainant, who received bullet injuries, set him at fire, due to which he died at the spot---Motive for the incident was old enmity---Ocular account of the occurrence had been furnished by two eyewitnesses---Said witnesses had stated that after the occurrence, police reached at the spot and recorded the statements of witnesses including complainant---Contrarily, Investigating Officer stated that statements of witnesses under S.161, Cr.P.C. were recorded on the next day of occurrence---Record was silent as to who recorded the statements of the witnesses---If both the said versions were taken into juxtaposition and one was disbelieved, that meant that the witnesses did not narrate the whole truth and if the version of ocular account had to be considered then it revealed that Investigating Officer initiated investigation prior to lodging of FIR---Statement of witnesses including complainant transpired that the statement of ocular witnesses under section 161 Cr.P.C. was recorded prior to registration of FIR, which was not permissible under the law---Record transpired that the complainant kept silent, did not try to extinguish the fire and waited for other witnesses to rescue his brother---Such conduct of complainant was unnatural---Allegedly, firing was made by three accused, but the empties were not dispatched to the Forensic Science Laboratory for examination as to whether the same were fired from one weapon or more weapons---No recovery was effected from the accused-appellant nor the blood-stained clothes were sent to Forensic Science Laboratory as to whether same was human blood or otherwise---Investigating Officer stated that he reached at the spot at 7.00 p.m. after receiving information and took the corpse to the hospital---First Information Report transpired that the occurrence had taken place at 7.00 p.m.---Such circumstances showed as if the Investigating Officer had received the information prior to the occurrence---Recovery memo showed that prosecution had secured six empties, while Medico Legal Certificate of deceased showed that the deceased had received eleven bullet injuries---Such omission, discrepancies and contradictions on the part of the prosecution could not lightly be ignored---Circumstances established that prosecution failed to prove its case beyond any shadow of doubt---Appeal was allowed and accused was acquitted by setting aside conviction and sentence recorded by the Trial Court, in circumstances.

Iftikhar Hussain v. State 2004 SCMR 1185 rel.

(c) Administration of justice---

----If a thing is required to be done in a particular manner then the same should be done in that manner and not otherwise.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Motive not proved---Effect---Prosecution case was that the accused persons made firing upon the brother of complainant, who received bullet injuries, set him at fire, due to which he died at the spot---Motive behind the incident was old enmity---Complainant failed to produce any cogent record in order to establish his version---Witnesses were inter se related to the complainant and there existed enmity between the parties---It was not safe to rely on the statement of interested, inimical witnesses without independent corroboration.

Rab Nawaz v. Sikandar Zulqarnain 1998 SCMR 25 rel.

(e) Criminal trial---

----Witness---Credibility---If a witness has lied on one point, his testimony will lose its credibility and could be ruled out from consideration.

Muhammad Darvaish v. State 2019 PCr.LJ 1086 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---If any doubt arises from the statements of the prosecution witnesses, its benefit will go to accused as a matter of right and not as a grace.

Wajahat Ahmed v. State 2016 SCMR 2073 and Ayub Masih v. The State PLD 2002 SC 1048 rel.

Ahsan Rafiq Rana for Appellant.

Muhammad Sadiq Guman for the Complainant.

Jameel Akhtar, Additional Prosecutor General for the State.

2020 M L D 1298

[Balochistan]

Before Rozi Khan Barrech, J

ZIA UL HAQ---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 5 of 2018, decided on 22nd November, 2019.

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

----Ss. 320 & 279---Qatl-i-Khata, rash driving on public way---Appreciation of evidence---Benefit of doubt---Accused was charged for rash and negligent driving the bus which hit a Police Constable, due to which he sustained head injuries and succumbed to the same on way to the hospital---Accused/appellant had admitted the incident as well as death of the deceased---Accused also admitted that he was driving the offending vehicle but stated that he was not driving the same in a rash and negligent manner---Only aspect, which remained to be examined, was whether the appellant was driving the offending vehicle in a rash or negligent manner---Complainant had stated during cross-examination that he himself did not see the accident---Eyewitness had stated in cross-examination that at the time of incident he was present in his guardroom and he himself did not see the accident---Said witnesses were the only eye witnesses of the occurrence but they stated before the Trial Court that they themselves did not see the incident---Both the said witnesses also stated that at the time of occurrence one truck which was loaded with stones was parked on the road side and when the incident took place the deceased was checking the said truck---Admittedly, the incident took place at 9.00 p.m.---Keeping in view the time of accident, it could safely be inferred that at the time of accident it was pitch dark---When witnesses had not seen the accident then how could they say that the accident took place due to negligence and carelessness of the accused---Even the record was silent about recording statement of any other passengers of bus and driver and cleaner of the truck which was parked on the road side---Visual sketch map of the place of occurrence was silent about any roadside light as well as about rear lights of the mini bus---Site map was also silent about presence of any eye witnesses on the spot, despite the fact that site map showed katcha houses near the opposite side of the road but still no one from the inmates of the said houses were associated as a witness of the occurrence---No evidence was available about over speeding of bus by the appellant nor the visual sketch map showed any signs of tyres as no rubber marks of the tyres being caused while applying the brakes with extreme power had been shown on the sketch map---Minibus was not examined by the Motor Vehicle Examiner nor the same was verified with regard to working condition of the brakes---Case against the accused was one of no evidence particularly with regard to his rash or negligent driving, simply because no one from the travelling passengers or from the nearby houses were associated as witnesses by the prosecution---Record was also silent regarding the fact that the bus was being driven in violation of the traffic rules, which led to the accident, therefore, could be equated with rashness and negligence---Circumstances established that the prosecution had not succeeded to bring any reliable and convincing piece of evidence to establish a rash and negligent driving of the accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 320 & 279---Qatl-i-Khata, rash driving on public way---Negligence---Scope---No mathematical formula was available to measure negligence---Negligence could only be judged and gauged upon the attending and surrounding facts and circumstances---Mere fact that a vehicle was running at fast speed would not prove rashness and negligence, therefore, it could safely be concluded that speed did not matter in case of accident rather the rashness and negligence were condition precedents to prove the offence under S.320, P.P.C.

Sardar Ahmed Haleemi along with Appellant.

Naeem Kakar, Additional Prosecutor General ("APG") for the State.

2020 M L D 1340

[Balochistan]

Before Abdul Hameed Baloch, J

SODHAL KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.(s) 79 of 2019 ,decided on 5th November, 2019.

(a) Pakistan Arms Ordinance (XX of 1965)---

----S. 13(e)---Possession of unlicensed arms--- Appreciation of evidence---Benefit of doubt---Sending of empties with weapon to the laboratory---Effect---Accused was convicted for having been in possession of a shotgun with live cartridges without licence or permit---Accused was arrested by police after exchange of firing for about half an hour but it did not appeal to reason as to how did the other accused, for whose arrest the raid was conducted, managed to escape---Statement of complainant was contradicted by eye-witnesses---Prosecution had failed to dispatch the weapon with rounds in order to ascertain whether the recovered weapon was in working condition or not---Mere recovery without the report of Forensic Laboratory did not advance the case of prosecution---Appeal was accepted and the accused was acquitted of the charge, in circumstances.

2015 MLD 1259 rel.

(b) Criminal trial---

----Benefit of doubt---Scope---Accused is entitled to the benefit of doubt.

Sher Umar Khan v. Khan Pur alias Khaney PLD 2015 Pesh. 143 rel.

Shabbir Ahmed Sherazi for Appellant.

Abdul Mateen, Deputy Prosecutor General for the State.

2020 M L D 1390

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

MUHAMMAD SHARIF---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 23 of 2019, decided on 7th October, 2019.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), Ss. 412 & 342---Possession of narcotics---No appeal in certain cases when accused pleads guilty---Examination of accused---Appreciation of evidence---Safe custody---Delay in sending contraband to Forensic Science Laboratory---Non-recording of statement of sample bearer---Scope---Accused was apprehended by police and during his search 1800 grams of charas was recovered---Accused did not plead guilty to the charge and claimed trial---Accused, during trial, voluntarily admitted his guilt and requested for leniency---Trial Court recorded the statement of accused under S.342, Cr.P.C., where he once again admitted his guilt and prayed for leniency---Trial Court convicted the accused---Conviction and sentence of accused were recorded on the basis of statement recorded under S.342, Cr.P.C., which was not construed as "plead guilty"---Admission of accused in his statement under S.342, Cr.P.C. was admission of that incriminating material which was produced by prosecution against him---Prosecution had examined only one witness---Allegedly recovered contraband was dispatched to Forensic Science Laboratory with a delay of more than 20 days without explanation---Statement of sample bearer was not recorded during investigation---Prosecution had failed to establish the safe custody of the alleged contraband---Appeal was allowed and the impugned judgment was set aside, in circumstances.

Abdul Ghani v. State 2019 SCMR 608 rel.

Abdul Latif, Additional Prosecutor General for the State.

2020 M L D 1477

[Balochistan]

Before Naeem Akhtar Afghan and Nazeer Ahmed Langove, JJ

ABDUL MANAN and another---Appellants

Versus

The STATE---Respondent

Criminal CNS Appeal No.137 of 2017, decided on 30th December, 2017.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of father of the complainant by firing---Incident was stated to be witnessed by complainant/real son of the deceased---Dead body of the deceased was shifted to hospital by the accused, which was against the human conduct and did not appeal to logic and reason---If complainant was the eyewitness of the case, the dead body of the deceased should have been shifted to the hospital by him instead of the accused---Such a conduct of real son being beyond comprehension of man of a prudent mind, in fact, made his presence on the spot doubtful---Story narrated by the prosecution was not believable, nor supported from any independent and unimpeachable source---Important eye witness of the incident was examined under S.161, Cr.P.C. on the very first day of the incident but his name was not included in the calendar of witnesses---Said fact showed biased conduct of the police as alleged by the defence---Presumption, in circumstances, could be that if said witness had entered the witness box,he would not have supported the prosecution case---No finger prints of the accused persons were obtained for expert opinion nor pistol was examined by finger print experts---Other eyewitness who alleged to have witnessed the incident to the extent of seeing the accused/appellants and absconding accused running towards adda was not worthy of reliance for the reason that his statement under S.161 Cr.P.C. was recorded after unexplained delay of five days and his version was not supported by any independent and unimpeachable source---False implication of accused after deliberation and consultation could not be ruled out of consideration---No previous enmity existed between the deceased and the accused persons which could have resulted into death of the deceased at the hands of the accused persons---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond reasonable doubt---Appeal against conviction was allowed, in circumstances.

Abdul Jabbar v. State 2017 SCMR 1155 and Kamal Hussain v. State 2004 PCr.LJ 813 rel.

(b) Criminal trial---

----Benefit of doubt---Principle---Defence was not required to create a series of dents and doubts in prosecution case but for giving the benefit of doubt if a single doubt created even then the defence would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 and Sher Umer Khn v. Khan Pur alias Khaney and 2 others PLD 2015 Pesh. 143 rel.

Syed Ayaz Zahoor for Appellants.

Habibullah Gul, Additional Prosecutor General (APG) for the State.

2020 M L D 1492

[Balochistan]

Before Muhammad Kamran Khan Mulakhail

and Abdul Hameed Baloch, JJ

NAQEEBULLAH and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.375 and Criminal Revision Petition No.37 of 2019, decided on 31st March, 2020.

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

----S. 161--- Supplementary statement--- Scope--- Supplementary statement of complainant has no evidentiary value in the eyes of law and cannot be termed as a piece of evidence more than a statement recorded under S. 161 Cr.P.C.

Khalid Javed v. The State PLD 2003 SC 1419 rel.

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

----S.302 (b)---Qatl-i-amd---Appreciation of evidence---Weapon and empties---Sending to Forensic Science Laboratory together---CDR data---Proof---Empties so recovered from the spot and sent to expert were of megaroof pistol, which could not match with 30 bore pistol---Forensic Science Laboratory report contained an entry of 9mm empties but the entire record was silent about recovery and use of such weapon---Such fact had created further doubt in prosecution version---Delay so caused in sending recovered alleged crime weapon for chemical analysis was unexplained---No explanation was on record in respect of safe custody of crime weapon within the custody of investigating authority--- Sending crime empties along with alleged recovered pistols, created a serious doubt as why the crime empties were retained by investigation officer till recovery of pistols---Sending them together created serious doubts when possibility of manipulation could not be ruled out---Even if the last call was made by accused to deceased, the same could have been for any other reason and not for the offence---Just by placing mobile data on record was not of any use to prosecution---CDR produced and relied upon by prosecution was neither attested nor signed by issuing authority nor any witness as either associated during investigation nor produced before Court therefore, such data could not be relied as a valid piece of evidence---High Court set aside conviction and sentence awarded to both the accused persons by Trial Court and they were acquitted of the charge---Appeal was allowed in circumstances.

Ali Sher v. The State 2008 SCMR 707; M.D. Nazir Hussain Sarkar and another v. The State 1969 SCMR and Advocate General, Government of East Pakistan v. Majid alias Abdul Majid 1970 SCMR 12 rel.

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

----S. 302(b)---Qatl-e-amd---Appreciation of evidence---Circumstantial evidence--- Scope--- Conviction can be recorded on the basis of circumstantial evidence---Even death sentence can be awarded, provided the circumstances constitute continuous chain without missing any link, combined effort of which establishes guilt of accused beyond shadow of doubt.

Muhammad Ishaq v. The State 2009 SCMR 135 rel.

(d) Criminal trial---

----Benefit of doubt---Scope---One substantial doubt is enough for acquittal of accused---Rule of benefit of doubt is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law.

Muhammad Akram Shah and Ayub Achakzai for Appellants.

Hassan Sherani and Usman Yousafzai for the Complainant.

Abdul Karim Malghani, State Counsel.

2020 M L D 1510

[Balochistan]

Before Abdul Hameed Baloch, J

TOOBA SAEED---Petitioner

Versus

CHAIRMAN, ADMISSION COMMITTEE BOLAN

UNIVERSITY OF MEDICAL AND SCIENCES QUETTA

BALOCHISTAN and 3 others---Respondents

Constitutional Petition No.1437 of 2019, decided on 13th February, 2020.

Educational institution---

----Admission in MBBS Programme---Requirements---Petitioner appeared in the entry test of Medical and Dental College Admission Test and obtained 99 out of 200 marks---Petitioner was refused admission as she could not secure 50% marks in the entry test---Validity---Provincial Admission Committee of Balochistan University of Medical and Health Sciences had agreed to reduce the eligibility criteria of 60% for Medical and Dental College Admission Test to that of 50% for Balochistan, which had been approved by the Syndicate of University---Petitioner had secured 99 marks out of 200 marks which were less than 50%---Petitioner had claimed admission in Balochistan University of Medical and Health Sciences on special consideration which was not permissible under the law---Prospectus, rules and regulations framed by the public educational institution were administrative policy applicable to all the candidates without any discrimination---Universities authorities in academic matters were the best judge to interpret the rules and regulations framed by the University---Court was to avoid to interpret the said rules unless a case of grave injustice had been made out---Petitioner had not challenged the decision of Provincial Admission Committee of Balochistan University of Medical and Health Sciences which had been approved by the Academic Council of said University---Constitutional petition was dismissed, in circumstances.

Muhammad Ilyas v. Bahauddin Zakariya University, Multan and another 2005 SCMR 961 and Fakharyar v. Agriculture University Peshawar PLD 2016 Pesh. 266 rel.

Juma Khan Mandokhail for Petitioner.

Khalid Sultan and Sohail Azam, Admin Officer Bolan University of Medical and Science, Quetta for Resondents Nos.1 to 3.

Abdul Latif Kakar, AAG for Respondent No.4.

2020 M L D 1557

[Balochistan (Sibi Bench)]

Before Muhammad Hashim Khan Kakar

and Abdul Hameed Baloch, JJ

FAIQ ALI and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No.(S)43 of 2019 and Criminal Revision No.(S)15 of 2019, decided on 23th October, 2019.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Contradictory statements---Contradiction in ocular and medical evidence---Delay in sending recovered articles to Forensic Laboratory---Effect---Prosecution case was that the accused persons fired at the deceased in the presence of witnesses---None other than the deceased had sustained injury, despite being at a distance of two feet---Eye-witnesses had contradicted each other regarding the manner in which the incident was committed and regarding the time of death of the deceased---Conduct of the witnesses was unnatural as they remained calm and did not resist or make hue and cry---Eye-witness had stated that the firing was made from a distance 2/3 feet while the medical officer had stated that the distance was 10/15 feet---Bloodstained earth and blood stained clothes were received in Forensic Laboratory after more than 45 days and it was not disclosed as to where were these articles kept and in whose custody---False implication of accused could not be ruled out, in circumstances---Prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accepted, in circumstances.

Gul Mir v. The State 2018 PCr.LJ 1216; Muhammad Arif v. The State 2019 PCr.LJ 337; Abdul Samad v. The State 2018 YLR 2053 and Ali Bakhsh alias Ali Dost v. The State 2018 PCr.LJ 866 ref.

Muhammad Rafique v. The State 2014 SCMR 1698 rel.

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

----Ss. 302 & 34---Qatl-i-amd, common intention---Recovery of weapon---Open place---Failure to send recovered weapon to Forensic Laboratory---Effect---Investigating Officer had recovered the crime weapon from the bushes on the pointation of the accused after more than three months of the incident---Weapon was recovered from an abandoned place which was neither in the possession nor in the ownership of accused---Weapon was not sent to the Forensic Laboratory---Prosecution could not take benefit from such recovery, in circumstances.

(c) Criminal trial---

----Witness---Scope---Statement of a witness has to be considered as a whole and not in pieces.

Jehan Bahadur v. The State 2013 YLR 2772 ref.

(d) Criminal trial---

----Witness---Scope---Numerous infirmities are not required to disbelieve a witness, if there is one which impeaches the credibility of the witness and makes the entire statement doubtful.

(e) Criminal trial---

----Absconsion---Evidentiary value---Scope---Mere absconsion of accused has never been considered as a corroborative piece of evidence.

Muhammad Farooq v. The State 2006 SCMR 1707 ref.

(f) Criminal trial---

----Benefit of doubt---Scope---Accused cannot be deprived of the benefit of doubt merely because only one circumstance creates doubt in the prosecution story.

Ayub Masih v. The State PLD 2002 SC 1048 ref.

Barkat Ali for Appellants

Jameel Akhtar, Additional Prosecutor General and Inayatullah Marghazani for the Complainant.

2020 M L D 1580

[Balochistan (Sibi Bench)]

Before Abdul Hameed Baloch, J

NABI BAKHSH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.(S)73 of 2017, decided on 19th March, 2020.

Penal Code (XLV of 1860)---

----Ss. 320, 337-A (i) (ii) (iii), 337-F, 337-G & 279---Criminal Procedure Code (V of 1898), S.342---Qanun-e-Shahadat (10 of 1984), Arts. 117 & 120---Qatl-i-Khata, Shajjah-i-Khafifa, Shajjah-i-Hashimah, Shajjah-i-Mudihah, Ghayr-Jaifah, rash and negligent driving---Appreciation of evidence---Rash and negligent driving---Onus to prove---Plea of accused---Effect---Accused while driving a vehicle caused accident which resulted into death of three persons---Trial Court convicted the accused for Qatl-i-Khata and causing injuries by driving rash and negligently---Trial Court did not discuss statements of prosecution witnesses and convicted accused on the basis of his reply to a question put to him under S. 342 Cr.P.C.---Prosecution was to prove guilt of accused beyond reasonable doubt---Judgment of Trial Court was based on statement of accused recorded under S.342 Cr.P.C. and that on physical examination of the vehicle of which tie-rod was not found broken---First Information Report was registered on 6.1.2016 while vehicle was produced by prosecution witness in Court on 3.10.2016, which remained parked with concerned police station---No report of Motor mechanic was produced to prove that vehicle was checked after accident---High Court observed that when law had provided a thing to be done the same had to be done in that particular manner---Trial Court was to first discuss the case in order to come to an independent conclusion with regard to truthfulness of prosecution witnesses then to examine statement of accused under S. 342 Cr.P.C.---If the Court had disbelieved prosecution evidence then it should have accepted the statement of accused as a whole with certainty---None of the ocular witnesses supported prosecution case---Mere driving in high speed did not constitute the offence where element of negligence was lacking---High Court set aside conviction and sentence awarded to accused by Trial Court and he was acquitted of the charge---Appeal was allowed in circumstances.

Hashim Qasim v. The State 2017 SCMR 986; Wajahat Ahmed v. The State 2016 SCMR 2073 and Yasir Arafat v. The State 2012 MLD 611 rel.

Inayatullah Marghazani for Appellant.

Jamil Akhtar, Additional Prosecutor General for the State.

2020 M L D 1626

[Balochistan (Sibi Bench)]

Before Rozi Khan Barrech, J

ILTAF QADIR---Petitioner

Versus

Mst. MEHAR NIGAR and another---Respondents

Civil Revision No.(S) 47 of 2018, decided on 18th March, 2020.

Islamic law---

----Pre-emption suit---Requirements---Suit property not adjacent to the property of pre-emptor---Plaintiff had not mentioned the description of suit land in his plaint---Pre-emptor before performing Talb-i-Ishhad must give reference of first demand to the witnesses informing them that he/she had already performed his/her first demand accordingly---Such reference was a condition precedent without which Talb-i-Ishhad was incomplete---Pre-emptor had not mentioned the names of witnesses in the plaint in whose presence Talb-i-Muwathibat and Talb-i-Ishhad were performed and no date, time and place of said talbs in the plaint were mentioned---Plaintiff was bound to have mentioned date, time and place of performance of Talb-i-Muwathibat in the plaint---Pre-emptor had failed to establish performance of Talb-i-Muwathibat, in circumstances---Trial Court had rightly rejected plaint filed by the plaintiff---Revision was dismissed, in circumstances.

Abdul Khalid Sumalani for Petitioner.

Sabir Ali Jamali and Bilal Haider for Respondents.

2020 M L D 1636

[Balochistan]

Before Muhammad Hashim Khan Kakar

and Muhammad Ejaz Swati, JJ

MUHAMMAD ESSA and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No.362 and Murder Reference No.18 of 2019, decided on 17th April, 2020.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of about two hours and fifteen minutes in lodging the FIR---Effect---Accused was charged for committing murder of his wife inside his matrimonial home---Motive behind the occurrence was stated to be strained relationship between the spouses---Record showed that the occurrence had taken place during a night in the month of May, inside the house of accused, which remained unwitnessed---Accused, who happened to be the son-in-law of complainant, along with co-accused had been nominated in the FIR on the basis of suspicion---Place of occurrence was at a distance of about three kilometres from Levies Thana---FIR in respect of the incident in question had been lodged after about two hours and 15 minutes---Possibility regarding deliberation and cooking-up a false story could not be ruled out of consideration, in circumstances---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Confessional statement of accused---Infirmities---Accused was charged for committing murder of his wife inside his matrimonial home---Motive behind the occurrence was stated to be strained relationship between the spouses---Bare perusal of confessional statement revealed that it was made on oath---Confession should be recorded in the manner provided for statement of an accused and not in the manner provided for recording evidence---If confessional statement was recorded in the manner provided for recording evidence by administering oath then it would loose its character insofar the maker was concerned---Fact of administering oath at the recording of confession virtually meant that the maker was compelled to give evidence against him, placing him in the status of a witness at the stage of investigation in violation of Art.13(b) of the Constitution read with S. 5 of the Oaths Act, 1873---Administering oath in recording confession would mean the recording of evidence of the maker for use in subsequent stage against the maker which was prohibited under the law---Proceedings of recording of the judicial confession deposed by the Judicial Magistrate also showed that it had never been mentioned in those proceedings that before recording the confession the handcuffs of the accused had been removed or for any time reflection was provided---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, in circumstances.

Muhammad Bakhsh v. The State PLD 1956 SC (Pak) 420; Azeem Khan v. Mujahid Khan and others 2016 SCMR 274 and Manzur v. The State PLD 1973 Lah. 714 rel.

(c) Criminal trial---

---Confession----Confessional statement, retraction of---Scope---In absence of independent corroboration, retracted judicial confession could not suffice by itself for recording or upholding the conviction.

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

----S.302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Confessional statement of accused and medical evidence---Contradictions---Effect---Accused was charged for committing murder of his wife inside his matrimonial home---Medical evidence furnished by Lady Police Surgeon was contrary to the alleged confession as well as prosecution case---Said witness deposed that on 29-5-2019, dead body was brought by Tehsildar and she after conducting post-mortem prepared her report---Said report showed that the cause of death would be given after receiving the chemical analysis report---Report of Chemical Analysis was only to the effect that no drug/poisons were detected in blood, liver and stomach contents---In such view of the matter, there was no occasion with the said witness to opine that the cause of death was due to asphyxia, smoothling and homicidal in manner---Appeal against conviction was allowed, in circumstances.

(e) Criminal trial---

----Witness---Reliance---Scope---Reliance upon evidence of witnesses disbelieved to the extent of co-accused---If a set of witnesses was disbelieved to the extent of some accused, the same could not be believed in respect of remaining accused facing the same trial without there being any independent and strong corroboration.

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

----S.302(b)---Qatl-i-amd---Wife dying an unnatural death in the house of husband---Presumption---Burden of proof---Prosecution was bound to prove its case against accused (husband) beyond reasonable doubt at all stages of a criminal case---In a case where the prosecution asserted presence of some eye-witnesses and such claim of the prosecution was not established by it then the accused person could not be convicted merely on the basis of a presumption that since the murder of his wife had taken place in his house, therefore, it must be he and none else who would have committed that murder.

Abdul Majeed v. The State 2011 SCMR 941 and Nasrullah v. The State 2017 SCMR 724 rel.

Muhammad Khlid Kaakar for Appellant (Criminal Appeal No.362 of 2019).

Ilyas Mughal for the Complainant (Criminal Appeal No.362 of 2019)..

Habibullah Gul, Additional Prosecutor General Additional Prosecutor General for the State (Criminal Appeal No.362 of 2019).

Habibullah Gul for the State (in Murder Reference No.18 of 2019).

Muhammad Khlid Kakar for Respondent (in Murder Reference No.18 of 2019).

Ilyas Mughal for the Complainant (in Murder Reference No.18 of 2019).

2020 M L D 1651

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ

SHAFI MUHAMMAD---Petitioner

Versus

MUHAMMAD GUL and another---Respondents

Constitutional Petition No.1014 of 2019, decided on 10th December, 2019.

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

----Ss. 200, 203 & 403---Constitution of Pakistan, Art. 13---Protection against double punishment and self-incrimination---Person once convicted or acquitted not to be tried for same offence---Dismissal of private complaint---Scope---Complainant, after acquittal of respondents by Trial Court, filed a private complaint against them, which was dismissed through impugned order---Respondents had faced trial in the FIR case on registration of FIR and the same allegations were levelled in the private complaint, as such Art. 13 of the Constitution as well as S. 403, Cr.P.C., came into play---Subject matter had already been tried by the court of competent jurisdiction in registered case between the same parties therefore, Magistrate had rightly dismissed the private complaint---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Art. 13---Criminal Procedure Code (V of 1898), S. 403---Protection against double punishment and self-incrimination---Person once convicted or acquitted not to be tried for same offence---Scope---Once a person is prosecuted for an offence and is acquitted, he cannot be subsequently tried for the same offence.

The State through Collector of Customs v. Nasim Amin Butt and others 2011 SCMR 1083 and Muhammad Nadeem Anwar v. Securities and Exchange Commissioner of Pakistan through Director NBFs Deptt: Islamabad 2014 SCMR 1376 ref.

Nazir Ahmad v. Capital City Police Officer, Lahore and another 2011 SCMR 484 rel.

(c) Maxim---

----Nemo bis punitur aut vexatur pro eodem delicto---Meaning: No one should be vexed twice for the same offence.

Muhammad Ilyas Mughal for Petitioner.

2020 M L D 1798

[Balochistan]

Before Rozi Khan Barrech, J

ABDUL BARI---Petitioner

versus

AMIR MUHAMMAD and 3 others---Respondents

Criminal Revision No.23 of 2020, decided on 16th March, 2020.

(a) Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4 & 5---Criminal Procedure Code (V of 1898), S. 540---Illegal dispossession---Summoning of witness---Scope---Petitioner filed application under S. 540, Cr.P.C., for calling the concerned SHO to tender the proposed document as a witness, which application was dismissed by the Trial Court---Validity---If it appeared to the court that a person's evidence was essential to the just decision of the case then there was no discretion to prevent such a person from being examined---Power under S. 540, Cr.P.C., to summon a witness might be exercised either by suo motu or on an application---Person who might not have been examined at the time of investigation or whose name was not included in the calendar of witnesses or in the challan could be summoned under S. 540, Cr.P.C.---In the present case the parties were in dispute over the property, which they claimed to be the owners of on account of petitioners alleged dispossession from the same---Petitioner filed a complaint under Ss. 3, 4 and 5 of the Illegal Dispossession Act, 2005 against the respondents for his alleged dispossession---No doubt, the document which the petitioner wanted to place on record i.e. report of SHO dated 16.12.2019 was not filed at the time of filing the complaint---Perusal of the same prima-facie revealed that allegedly the accused/respondents tried to encroach the unsettled property and the petitioner intended to establish the conduct of the respondents as land grabbers through the said document---Trial Court did not make an effort to satisfy itself or to consider the two essential ingredients; firstly, whether the proposed person was a material witness and, secondly, whether he was essential for a just decision of the case---Trial Court was required to take the entire material and the circumstances of the case into consideration, so as to form an opinion whether summoning of the proposed witness was essential for a just decision of the case---Trial court, while passing the impugned order, did not consider the principles and law laid down for deciding applications under S. 540, Cr.P.C and thereby failed to exercise jurisdiction vested in it, besides the illegality and material irregularity---Grounds for dismissing the application under S. 540, Cr.P.C., were neither tenable in law nor in consonance with the principles enunciated in that regard---Application was allowed by the High Court setting aside the impugned order and Trial Court was directed to call the proposed witness to place the said document on record according to law.

Muhammad Saleem v. Muhammad Azan and another 2011 SCMR 474 and Shahbaz Masih v. The State 2007 SCMR 1631 rel.

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

----S. 540---Summoning of witness---Scope---Most critical and fundamental considerations for a court while deciding such an application were twofold; firstly, it was to form an opinion as to whether the person was a material witness and secondly, that examining such a witness was essential for a just decision of the case---Timing of summoning such a person to be examined as a witness was irrelevant, provided the court was satisfied that the evidence would be essential to meet the ends of justice and for a just decision of the case---Likewise, it was also not a bar to examine such a material witness if, during the investigations, his/her statement was not recorded under S. 161, Cr.P.C., or he did not appear in the calendar of witnesses.

Syed Manzoor Shah for Petitioner.

Ajmal Khan Kakar and Sahibzada Nisar Ahmed for Respondents Nos.1 and 2.

Shumaila Iftikhar and Wajahat Khan Ghaznvai, State Counsel for PG/Respondents Nos.3 and 4.

2020 M L D 1857

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

MUHAMMAD JAMSHED KHAN---Appellant

versus

ALAMGEER and another---Respondents

Criminal Acquittal Appeal No.389 of 2019, decided on 29th June, 2020.

(a) Penal Code (XLV of 1860)-

----Ss. 302, 447, 109 & 34---Qatl-i-amd, criminal trespass, abetment, common intention-Appreciation of evidence---Appeal against acquittal---Accused was charged that he and co-accused committed murder of brother of the complainant by firing---Record showed that the complainant was not an eye-witness of the occurrence---Prosecution produced two eye-witnesses who stated in their statements that the accused and co-accused made firing upon deceased, who succumbed to the injuries---Role attributed to the accused and co-accused was the same---Co-accused, who allegedly had caused injuries to the deceased, had been acquitted and there was no piece of evidence available against the accused, therefore, on the basis of same set of evidence the accused could also be acquitted of the charge---If two accused persons were alleged to have committed murder of the deceased and one of them had been acquitted of the charge on the basis of same evidence, then said evidence could not be believed to the extent of other accused for the reason that principle of "falsus in uno falsus in omnibus" would be applicable for deciding the case---Eye-witnesses, when were not believed to the extent of co-accused while applying the principle of "falsus in uno falsus in omnibus" the other accused could not be held guilty in the case---No doubt there was abscondance on the part of accused, yet abscondance by itself was not sufficient proof of guilt of accused, it ought to be corroborated by other supporting evidence, which element was missing in the present case---Circumstances established that the Trial Court arrived at the conclusion which was based on proper appreciation of the facts and law, thus did not need interference by the High Court---Appeal against acquittal was dismissed, in circumstances. Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Shahbaz v. The State 2016 SCMR 1763; Zafar v. The State and others 2018 SCMR 326; Haroon Shafique v. The State and others 2018 SCMR 2118; Altaf Hussain v. The State 2019 SCMR 274; PLD 2019 SC 527 and Haji Palio Khan v. Sher Baz 2009 SCMR 803 rel.

(b) Appeal against acquittal---

----Double presumption of innocence---Interference---Scope---Acquittal carried with it double presumption of innocence---Acquittal could be reversed only when found blatantly perverse, resting upon fringes of impossibility and resulting into miscarriage of justice---Acquittal could not be set aside merely on the possibility of a contra view.

Rizwan Ali Somro for Appellant.

2020 M L D 1917

[Balochistan]

Before Naeem Akhtar Afghan and Abdul Hameed Baloch, J

MUHAMMAD MOHID-DIN---Petitioner

versus

DIRECTOR GENERAL, NAB (Balochistan) and another---Respondents

Constitutional Petition No.1386 of 2019, decided on 20th December, 2019.

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

----Ss. 265-F & 540---Evidence for prosecution---Power to summon material witness or examine persons present---Scope---Petitioner, a stranger to the proceedings, filed application under Ss. 265-F & 540, Cr.P.C. for permission to record his statement as prosecution witness or court witness---Validity---Subsection (2) of S.265-F, Cr.P.C. transpired that the court shall ascertain from the public prosecutor the name of any person acquainted with the facts of the case---Petitioner was neither complainant nor he had any nexus with the case; had not provided any document or record of his statement before the investigating officer and had kept silent for five years---Section 265-F, Cr.P.C. provided that the complainant or accused could approach the court for summoning/calling the person who was acquainted with the facts of the case---Court though had ample power to record statement of any person irrespective of whether his statement under S.161, Cr.P.C. was recorded or not during investigation, but that did not mean that a person could approach the court after a delay of several years for permission to record his statement as prosecution or court witness---Petitioner had not explained as to why he kept mum and who prevented him to co-operate with the investigating officer during investigation---Petitioner had a claim against the accused for which he had to approach the court of civil jurisdiction---Constitutional petition was dismissed.

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

----S. 540---Power to summon material witness or examine persons present---Purpose---Section 540, Cr.P.C. confers wide discretion upon the court to summon a person to record his statement---Such discretion has to be exercised judiciously and for the ends of justice---Purpose of examination of witness must not be to fill the lacunas of the case---Paramount consideration is doing justice between the parties.

Syed Abuzar Haider and Riaz Mansoor Shah for Petitioner.

Rashid Zaib Golra, Special Prosecutor, NAB for Respondents.

2020 M L D 1921

[Balochistan]

Before Abdullah Baloch, J

ABDUL RAZZAQ and another---Appellants

versus

The STATE---Respondent

Criminal Appeal No.62 of 2019, decided on 2nd July, 2020.

(a) Foreign Exchange Regulation Act (VII of 1947)---

----Ss. 4, 5 & 23---Penal Code (XLV of 1860), S.109---Indulging in business of hundi/hawala---Issuance of a warrant by the court---Requirements---Before carrying out any proceedings, a complaint in writing by a person authorized in that behalf by the Federal Government or by the State Bank of Pakistan supported by statement of that person on oath was a mandatory requirement of law before issuance of a warrant by the court of competent jurisdiction.

(b) Foreign Exchange Regulation Act (VII of 1947)---

----Ss. 4, 5 & 23---Penal Code (XLV of 1860), S.109---Indulging in business of hundi/hawala---Appreciation of evidence---Benefit of doubt---Accused was charged for carrying out foreign exchange business in an unauthorized manner---Record showed that Federal Investigation Agency (FIA) without adopting the required procedure and without seeking the permission of the concerned Magistrate had carried out all the proceedings i.e. conducted the raid, entered and searched the place of occurrence, collected the Pakistan and foreign currency, other articles and also arrested the accused persons---No search warrant, either from the Tribunal/Sessions Judge or from the concerned Magistrate was obtained in view of S.23 of the Foreign Exchange Regulation Act, 1947---Admittedly, no permissions with regard to arrest of the accused and for search of their shop were sought or granted---Despite the fact that the raid was conducted on the basis of prior information, the Investigating Officer had failed to associate any independent witness in the recovery proceedings nor the local police, within whose jurisdiction the raid was carried out, was associated---Entire recovery proceedings carried out by the FIA appeared to be doubtful---Circumstances suggested that the FIA illegally and without any mandate of law raided the shop of the accused and thereby travelled beyond their authority as the required procedure was not followed rather violated---Case of prosecution from its very inception was defective, not maintainable and the impugned order of conviction passed by the Trial Court liable to be set-aside, which was founded on violation of prescribed rules and laws---Appeal against conviction was allowed, in circumstances.

Alam Jan v. FIA Police Station, Gilgit and another 2017 PCr.LJ 69 and Ghani-ur-Rehman v. The State 2015 MLD 1438 rel.

(c) Administration of justice---

----If law required a thing to be done in a particular manner it must be done in the same manner as provided under the law---Deviating from the prescribed procedure amounted to violation of law.

(d) Administration of justice---

----Mandatory requirements of law, which were pre-requisites, if not fulfilled, the entire proceedings, would be nullified in the eyes of law.

Mehmood Sultan Afridi for Appellants.

Nadeem Akhtar, Assistant Attorney-General for the State.

2020 M L D 1926

[Balochistan]

Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ

AMANULLAH KHAN---Appellant

versus

The STATE---Respondent

Criminal Ehtesab Appeal No.1 of 2010, decided on 14th November, 2019.

National Accountability Ordinance (XVIII of 1999)---

----S. 9(a)(iv)&(vi)---Illegal gains and misuse of authority---Appreciation of evidence---Accused was Bank Manager who fraudulently misappropriated an amount of 10.82 million out of which Rs.2.258 million were still outstanding---Prosecution witnesses were subjected to lengthy cross examination but nothing beneficial to defence came from their mouth---Prosecution witnesses were consistent on each and every aspect of the matter and did not contradict each other on material issues---Offence committed by accused was very heinous in nature as he made fraudulent withdrawals of an excess of amount of Rs.10.852 million with fake/forged signatures of pensioners against PPOs of CMPA---Accused prepared fake pension bills with his own handwriting by putting forged signatures thereon---Accused misused his official position dishonestly and fraudulently misappropriated an amount of Rs.10.852 million when he was custodian of public office---Public functionary had done such kind of an act especially when he was custodian of public record and had committed forgery and fabrication to gain unfair advantage---High Court declined to interfere in conviction and sentence awarded by Trial Court---Appeal was dismissed in circumstances.

Imtiaz Ahmed v. The State PLD 1997 SC 545 ref.

Ahsan Rafiq Rana for Appellant.

Ch. Mumtaz Yousuf, DPG (NAB) for the State.

2020 M L D 1969

[Balochistan]

Before Muhammad Kamran Khan Mulakhailand Nazeer Ahmed Langove, JJ

MUHAMMAD ESSA---Petitioner

Versus

MUDASIR AHMED and 3 others---Respondents

Constitutional Petition No.746 of 2019, decided on 16th December, 2019.

Criminal Procedure Code (V of 1898)---

----S.22-A (6)(1)---Ex-Officio Justice of Peace---Direction to register case--- Effect--- Petitioner was aggrieved of direction issued to Station House Officer by Ex-Officio Justice of Peace to register case against petitioner---Validity---Ex-Officio Justice of Peace, instead of issuing direction for recording version of complainant, directed Station House Officer for registration of FIR---Ex-Officio Justice of Peace committed error while issuing such direction as the same was not according to the guideline provided by Supreme Court---High Court directed investigating authority to record version of complainant and order passed by Ex-Officio Justice of Peace was set aside---Petition was allowed, in circumstances.

Sughran Bibi's case PLD 2018 SC 595 rel.

Muhammad Shabir Rajput for Petitioner.

Sarwar Khan Kakar for Respondent No.1.

Sudheer Ahmed Baloch, DPG along with Ghulam Muhammad, S.H.O./Incharge Levies Thana, Hanna for the State.

2020 M L D 1990

[Balochistan]

Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ

REHMATULLAH and 5 others---Appellants

Versus

AZIZ ULLAH and another---Respondents

Criminal Acquittal Appeal No.486 of 2019, decided on 29th June, 2020.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Accused was charged for committing murder of the brother of complainant by inflicting knife blows---Record transpired that no one came forward to furnish ocular evidence of the incident---No direct evidence available on record against the accused---Witness stated that he had seen a person lying in injured condition in a pool of blood in the guest room of accused---Witness and accused tried to take the injured to hospital on motorcycle but due to his serious condition, they could not take him to hospital on motorcycle---Later, they took the injured in the vehicle of a Thanedar/witness to hospital---Statement of said witness was further corroborated by Thanedar/witness---Statements of said two witnesses showed that the accused was the person who informed the witness about the injuries of the deceased and shifted the deceased to hospital in injured condition---Question, in circumstances, arose that if the crime was committed by the accused and the intention was to murder the deceased then why did he (accused) called witness to help him to take the deceased to the hospital---Not believeable that the accused first inflicted life threatening severe knife blows on the person of the deceased that too in his own guestroom and thereafter called his neighbour to take him/injured to hospital in order to save his life---Accused was not only trying hard to take the deceased to hospital but he managed to take the deceased in injured condition to hospital with Thanedar and others and above all remained at the hospital without any fear of being involved in the case---Nothing came on record that there existed any kind of enmity between the deceased and the accused---Prosecution obviously failed to set any motive, which could create reasonable dent in the veracity of the prosecution version---Circumstances established that the prosecution had failed to establish culpability of accused through reliable, trustworthy and confidence inspiring evidence---Appeal against acquittal was dismissed, in circumstances.

(b) Criminal trial---

----Circumstantial evidence---Scope---If the case is based on circumstantial evidence, the prosecution must ensure that the circumstances from which the inference of guilt was sought to be drawn, must be cogently and firmly established---Circumstances must unerringly point towards the guilt of the accused and when taken cumulatively should form a chain so complete, that it must demonstrate in all probabilities that the crime is committed by the accused---Where the evidence was of a circumstantial nature, the circumstances from which the conclusion of guilt was to be drawn was to be in the first instance be fully established and all the facts so established were to be consistent only with the hypothesis of the guilt of the accused---Circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved---Chain of evidence had to be there, so far completed as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such to show that within all human probability the act must have been done by the accused.

Sheikh Muhammad Amjad v. State PLD 2003 SC 704 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---One circumstance, which created reasonable dent in the veracity of the prosecution version, could be taken into consideration for giving benefit to the accused not as a matter of grace rather as a matter of right.

Tariq Pervaiz v. The State 1995 SCMR 1345 and Riaz Masih v. The State 1995 SCMR 1730 rel.

(d) Appeal against acquittal---

----Double presumption of innocence---Interference---Scope---Acquittal carried with it double presumption of innocence---Acquittal order could be reversed only when found blatantly perverse, resting upon fringes of impossibility and resulting into miscarriage of justice---Acquittal order could not be set aside merely on the possibility of a contra view.

Mujeeb Ahmed Hashmi and Ajmal Lawod for Appellants.

2020 M L D 2006

[Balochistan]

Before Muhammad Hashim Khan Kakar and Muhammad Ejaz Swati, JJ

BAHADUR KHAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.435, Criminal Revision Petition No.42 of 2019, decided on 30th April, 2020.

Penal Code (XLV of 1860)---

----Ss. 302, 324 & 34---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Information received from accused to be proved---Appreciation of evidence---Benefit of doubt---Scope---Accused was alleged to have murdered the father of complainant---Prosecution case hinged on ocular account furnished by complainant, disclosure of acquitted accused, disclosure statement of accused and medical/death certificate of deceased---Facts mentioned in the FIR were reproduced in the alleged disclosure of accused, therefore, it could not be considered as discovery of new fact within the meaning of Art.40 of Qanun-e-Shahadat, 1984---Complainant could not justify his presence at the spot---Medical officer deposed that deadbody of the deceased was brought to the hospital by an Assistant Sub-Inspector of Police---Had the complainant witnessed the occurrence, nothing prevented him to accompany the deceased to the hospital---Prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

Mst. Askar Jan v. Muhammad Daud 2010 SCMR 1604; 2017 SCMR 596 and Javaid Akbar v. Muhammad Amjad and Jameel @ Jeela and another 2016 SCMR 1241 rel.

Taj Muhammad Mengal for Appellant (in Criminal Appeal No.435 of 2019).

Habibullah Gul, Additional P.G. for the State (in Criminal Appeal No.435 of 2019)

Habibullah Gul, Additional P.G. for the State (in Criminal Revision Petition No.42 of 2019)

Taj Muhammad Mengal for Respondent (in Criminal Revision Petition No.42 of 2019).

2020 M L D 2039

[Balochistan]

Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ

SALEEM IQBAL and another---Appellants

Versus

MUHAMMAD ASHIQ and others---Respondents

Criminal Acquittal Appeals Nos.61 and 71 of 2018, decided on 18th December, 2019.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Appeal against acquittal---Accused was charged for committing murder of the husband of complainant by firing---Record showed that wife of the deceased/complainant was eye-witness of the case and during investigation they were booked as the accused---No one had come forward to furnish the ocular account of the incident, thus, it was an unseen occurrence---Prosecution case was full of contradictions and manner and mode of occurrence was highly doubtful and the evidence produced in support of its case was not confidence inspiring---Appeal against acquittal was dismissed, in circumstances.

(b) Criminal trial--

----Circumstantial evidence---Scope---Prosecution must ensure, that the circumstances from which the inference of guilt was sought to be drawn must be cogently and firmly established---Circumstances must unerringly point towards the guilt of the accused and when taken cumulatively, they should form a chain so completed that it must demonstrate in all probabilities that the crime was committed by the accused.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Appeal against acquittal---Confession, recording of---Infirmities---Effect---Accused was charged for committing murder of the husband of complainant by firing---Record showed that wife of the deceased/complainant became eye-witness of the case and during investigation she was also booked as accused---Accused persons were produced before the Judicial Magistrate for recording statements under S.164, Cr.P.C. whereby the accused was given an opportunity to cross-examine the co-accused persons---Accused was produced before Judicial Magistrate for recording his statement under S.164 Cr.P.C., whereafter the statement of said accused was recorded and issued certificates---Neither the Judicial Magistrate called on the said date the co-accused persons nor gave them any opportunity for cross-examination while recording statement of accused under S.164, Cr.P.C.---When co-accused was produced before the Judicial Magistrate, the Judicial Magistrate did not record her statement and notice was issued to the accused for cross-examining co-accused and her statement was recorded on the next day---If it was necessary to issue notice to accused for giving him an opportunity of cross-examining the co-accused persons, then the question arose as to why did he not record the statement of accused on the said date---When the Judicial Magistrate recorded the statement of accused, he did not call both the co-accused on the said date---Said aspect of the matter casted reasonable doubt on the prosecution case---Record further transpired that the Judicial Magistrate, after recording statement of accused under S.164, Cr.P.C., handed them over to the Investigating Officer, who brought the accused before him, which made the confessional statements of accused involuntary, which could not be made basis for recording conviction---Judicial Magistrate had also not given sufficient time for reflection before recording the statements of the accused under S.164, Cr.P.C., as it was incumbent upon him to have given accused sufficient time for reflection i.e. thirty minutes with three intervals---Henceforth by not doing so, Judicial Magistrate failed to observe precautions held necessary before recording a confessional statement---Certificates issued by the Judicial Magistrate and statements of Investigating Officer and Judicial Magistrate revealed that no time for reflection was given to the accused before recording their statements under S.164, Cr.P.C., as envisaged under S.364(2), Cr.P.C.---Confessional statements of accused did not appear to be true and voluntary---Circumstances established that the Trial Court had passed a well-reasoned judgment, which was neither perverse nor fanciful or ridiculous---Appeal against acquittal was dismissed, in circumstances.

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

----S. 302---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Appeal against acquittal---Confessional statement of accused---Delay in recording---Effect---Accused was charged for committing murder of the husband of complainant by firing---Record showed that after eight days of his arrest the accused was produced before Judicial Magistrate, who allegedly recorded his statement under S.164, Cr.P.C.---Such delay had not plausibly been explained by the prosecution, which had highly damaged its credibility and same could not be accepted as confidence inspiring against the accused---Appeal against acquittal was dismissed, in circumstances.

Naqeebullah's case PLD 1978 SC 21; Khalid Javed and another v. The State 2003 SCMR 1419; Shoukat Saeed v. The State PLD 1978 Quetta 1 and Patoo and another v. The State 2012 MLD 1358 rel.

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

----S. 164---Confessional statement---Evidentiary value---Confessional statement is not to be accepted as a substantive piece of evidence and conviction cannot be placed on it alone, unless it is corroborated in each and every detail by other corroborative and circumstancial evidence.

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

----S. 302---Criminal Procedure Code (V of 1898), S.164---Qatl-i-amd Appreciation of evidence---Appeal against acquittal---Retracted confession---Scope---Retracted confession shall not be accepted as gospel truth---Court shall carefully scrutinize such confessional statement to ascertain as to whether all the formalities required thereto fulfilled by the court, which recorded such statement.

Muhammad Parvez and others v. The State 2007 SCMR 670; Muhammad Ali v. The State 2008 PCr.LJ 87 and Muhammad Yousuf v. The State 1995 SCMR 351 rel.

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

----S. 302---Qatl-i-amd---Appreciation of evidence---Appeal against acquittal---Recovery of weapon and crime empty on the instance of accused---Delay in sending the weapon and crime empty for analysis---Scope---Record showed that the pistol was recovered on the pointation of accused---Such version was not trustworthy and confidence inspiring---Incident took place on 03-07-2016 and the pistol was recovered along with empty on 28-07-2016 from a drain with running water on the pointation of accused---Nothing was available on record to show that the said drain was a running water drain---Prudent mind would not accept that the accused made firing upon the deceased and also took the empty with him and threw the same in a drain of running water---Said recovery was not effected from exclusive possession of the accused and the place of recovery was also not in custody of the accused---Bullet lead was recovered on the day of occurrence from the place of occurrence and the same was taken into possession through recovery memo and was sealed in a parcel---Said bullet lead was not sent to Firearms Expert along with recovered pistol---Record further revealed that the alleged recovery was effected on 28-07-2016 and pistol and one bullet empty were sent to Firearms Expert for opinion after delay of five months without any explanation---Such recovery was inconsequential, in circumstances----Appeal against acquittal was dismissed, in circumstances.

(h) Criminal trial---

----Benefit of doubt---Principle---One circumstance, which created reasonable dent in the veracity of the prosecution version could be taken into consideration for extending benefit of doubt to the accused not as a matter of grace rather as a matter of right.

Syed Ayaz Zahoor and Rubina Shaheen for Appellants.

Respondent No.1 (in person).

Allaudin Saeed for Respondents Nos. 2 and 3.

Abdul Mateen, DPG for the State.

2020 M L D 2059

[Balochistan]

Before Muhammad Kamran Khan Mulakhail and Abdul Hameed Baloch, JJ

KAMAL-UD-DIN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No.437 and Murder Reference No.11 of 2017, decided on 30th June, 2020.

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

----Ss. 302, 324, 147, 148 & 149---Criminal Procedure Code (V of 1898), S.161---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapons, unlawful assembly--- Appreciation of evidence---Delay in recording the statements of witnesses by the police---Effect---Record showed that the statements of injured witnesses were recorded with the delay of three days without offering any plausible explanation---Evidence of ocular account could not be discarded merely on the ground of delay and it was the discretion of the Investigating Officer to record statement of witnesses under S.161, Cr.P.C, but said discretion had not to be exercised arbitrarily---Complainant submitted application for registration of FIR without any delay wherein he mentioned the name of injured witnesses---Investigating Officer was duty bound to record the statements of witnesses---Intentional or otherwise any concession extended to accused being lapse on the part of Investigating Agency would not be fatal to the prosecution case---Statements of injured/ocular witnesses could not be brushed aside on the ground that the Investigating Officer recorded the same with some delay.

Muhammad Safar v. The State 2006 SCMR 1773 rel.

(b) Criminal trial---

----Witness-- -Interested witness---Scope---Interested witnesses were one who had motive for falsely implicating the accused for any act of enmity.

Nazir v. The State PLD 1962 SC 269; Khalil Ahmed v The State 1976 SCMR 161; Allah Ditta v. The State, 1970 SCMR 734; Muhammad Akbar v. Muhammad Khan PLD 1988 SC 274 and Shehruddin v. Allah Rakhio 1989 SCMR 1461 rel.

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

----Ss. 302, 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Related and interested witnesses---Reliance---Scope---Admittedly, the eye-witnesses were related to the deceased---Complainant, deceased and witnesses were closely related to each other, but on that score their statements could not be discarded---Inter se relationship of prosecution witnesses who stood firm on the test of lengthy cross-examination could not be discarded---Intrinsic value of the statements of prosecution witnesses, which were to be considered.

Riaz Hussain v. The State 2001 SCMR 177 and Manawar Ali v. the State 2001 SCMR 614 rel.

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

----Ss. 302, 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Sentence, reduction in---Prosecution case was that the accused along with co-accused while armed with pistol, knives and churries, assaulted on complainant party, due to which four persons were injured and the cousin of complainant succumbed to injuries---Ocular account of the incident had been furnished by five witnesses including three injured---Defence had not disputed the venue of occurrence and presence of deceased and ocular witnesses---Evidence of eye-witnesses proved that the accused fired on deceased due to which he succumbed to the injuries---Defence had not denied the occurrence---Eye witnesses were natural witnesses, they were as good as any other independent witnesses---Defence had failed to bring on record any ill-will or grudge qua the witnesses---Record reflected that the statements of injured witnesses were in line with the statement of complainant---Complainant admitted that there was no enmity with the accused---Evidence showed that the occurrence had taken place suddenly when the accused party had blocked the road where the injured and deceased reached at the place of occurrence---Complainant party insisted for opening of the way, thus scuffle took place---Accused fired on the deceased due to which he succumbed to the injuries---Both the parties were known to each other, therefore, there was no misidentification of the accused---All the eye witnesses were unison that the accused had fired upon the deceased---Record showed that the accused made single fire on the deceased, occurrence took place suddenly and the prosecution had not alleged any motive for commission of the crime---Circumstances in which the occurrence took place would lead to an inference that due to something the occurrence was suddenly happened, thus it was not a case of death penalty---High Court, in circumstances, altered the conviction and sentence of the accused from death to imprisonment for life---Appeal was disposed of accordingly.

Notice to Police Constable Khizar Hayat PLD 2019 SC 527; Dr. Khalid Moin v. The State 2006 PCr.LJ 639 and Rizwan alias Abu Bakar v. The State 2010 PCr.LJ1296. ref.

Umerzad v. The State 1990 SCMR 571 and Bashir Khan v. The State 1995 SCMR 900 rel.

(e) Criminal trial--

----Witness---Minor discrepancies in the statement of witnesses---Scope---Minor discrepancies in the testimony of prosecution witnesses in respect of exact timing of post murder ancillary proceedings and omissions, improvement could not be termed as dishonest without establishing animosity of the witnesses against the accused.

Sarfraz alias SAPPI v. The State 2000 SCMR 1758 rel.

(f) Criminal trial---

----Absconsion---Scope---Abscondence could not altogether be ignored and its corroborative value carried substantial weight.

Nawas Khan v. The State PLD 2004 SC 330 and Bashir Ahmed Leghari v. The State 2020 SCMR 595 rel.

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

----Ss. 302, 324, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapons, unlawful assembly--- Appreciation of evidence---Recovery of crime weapon---Scope---Sentence, reduction in---Prosecution case was that the accused and co-accused while armed with pistol, knives and churries, assaulted on complainant party, due to which four persons were injured and the cousin of complainant succumbed to injuries---Record showed that the accused was arrested after twelve years of lodging of FIR---Facts showed that it was impossible that the accused retained the crime weapon with him in long span of time---Even otherwise the factum to recover weapon of offence during the investigation for any reason would not be sufficient to suggest that the accused was not armed---Recovery of crime weapon only tended corroboration to other piece of evidence---Appeal was disposed of with modification in sentence.

Ashfaq Asghar v. Hafeez 2013 YLR 2620 rel.

(h) Criminal trial---

----Site plan---Evidentiary value---Site plan is not a substantive piece of evidence, but confirmatory in nature---Mere omission to mention the position of eye-witnesses in the site plan is not fatal to the prosecution case.

Ali Sher v. The State PLD 1980 SC 317 rel.

Jamil Ramzan and Jamila Penezai for Appellants.

Muhammad Younas Mengal, Additional Prosecutor General and Iqbal Kasi and Hassan Sherani for the State.

2020 M L D 432

[Supreme Court (AJ&K)]

Before Ch. Muhammad Ibrahim Zia, C.J. Raja Saeed Akram Khan, J

NISAR HUSSAIN---Appellant

Versus

The STATE through Advocate-General of Azad Jammu and Kashmir and an other---Respondents

Criminal Appeal No. 33 of 2018, decided on 28th May, 2019.

(On appeal from the judgment of the Shariat Appellate Bench of the High Court, dated 11.6.2018, in Criminal Appeal No.223 of 2017).

Penal Code (XLV of 1860)---

----S. 377---Azad Jammu and Kashmir Offence of Zina (Enforcement of Hudood) Act (V of 1985), S. 12---Kidnapping or abducting in order to subject a person to unnatural lust, sodomy---Appeal, non-filing of---Administration of justice---Two accused were convicted and sentenced by the Trial Court, which was maintained by the High Court---Co-accused, on appeal was acquitted---Effect---Benefit of acquittal of an accused could be extended to co-accused who did not file appeal---Contents of the impugned judgment and the FIR showed that the allegations and the set of evidence against the appellant were the same---Co-accused was acquitted while extending the benefit of doubt---Appellant/accused during course of trial had been granted exemption from personal appearance---Stance taken by the appellant that after joining Army, he could not get intimation about the fate of trial/appeal was supported from the record---Nothing was available on record that after granting the exemption from personal appearance, any measure was adopted to procure his attendance or in case of non-appearance, he was declared proclaimed offender---By mere non-filing of appeal, due to the circumstances beyond his control, the appellant could not be deprived of the benefit as extended to the other co-accused---Circumstances of the case warranted the same benefit to the accused/appellant which was extended to co-accused---Appeal was accepted and accused was acquitted by setting aside conviction and sentence awarded by the Trial Court.

Shabbir Ahmed v. The State 2011 SCMR 1142 and Imtiaz alias Taj v. The State and others 2018 SCMR 344 rel.

Ch. Shaukat Aziz, Advocate for Appellant.

Raja Ayaz Ahmed, Assistant Advocate General for the State.

Asghar Ali Malik, Advocate for the Complainant.

2020 M L D 1424

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, CJ and Raja Saeed Akram Khan, J

ANIS IBRAHIM----Appellant

Versus

The STATE through Advocate-General, Azad Jammu and Kashmir, Muzaffarabad and another----Respondents

Criminal Appeal No.30 and Criminal Miscellaneous No.40 of 2019, decided on 5th November, 2019.

(On appeal from the judgment of the High Court dated 14.6.2019 in Criminal Appeals Nos.4 and 5 of 2018).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----Art. 42---Conversion of appeal into a petition for leave to appeal or vice versa by the Supreme Court---Limitation---Scope---Appellant assailed the order whereby High Court had, except one sentence, upheld the conviction of the Trial Court---Appellant during pendency of appeal filed application for conversion of appeal into a petition for leave to appeal---Validity---Limitation for filing a petition for leave to appeal in a criminal matter was 30 days, thus, the appellant had remained negligent and had not filed any application within the prescribed limitation---Application for conversion of appeal into a petition for leave to appeal or petition for leave to appeal into appeal after the prescribed limitation was not maintainable---Appeal was dismissed.

Syed Abid Hussain Shah and 3 others v. Administrator Auqaf and another 2016 MLD 161 and Ch. Ajaib Hussain and another v. Mst. Zareen Akhtar and 11 others 1999 YLR 1426 ref.

Administrator Auqaf (Nazam-e-Alla Auqaf) v. Sain Ghulam Ahmed and others 2014 MLD 238 rel.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 42---Appeal to Supreme Court---Maintainability---Scope---Appellant assailed order whereby High Court had, except one sentence, upheld the conviction of the Trial Court---Validity---Subsection (11) of S. 42 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, provided that in criminal cases a direct appeal against the judgment of the High Court was competent when High Court had reversed the order of acquittal and sentenced the accused to death or to imprisonment for life or on revision, had enhanced a sentence to a sentence as aforesaid---Conviction order by the Trial Court was upheld by the High Court, therefore, impugned judgment of the High Court did fall within the category of Subsection (11) of S.42 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, for filing direct appeal---Orders, which did not fall within the domain of Subsection (11) of S. 42 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, could only be challenged by filing a petition for leave to appeal---Direct appeal filed by the appellant was not maintainable---Appeal was dismissed.

Muhammad Naseer Abbasi, Advocate for Appellant.

Raja Ayaz Ahmed, Assistant Advocate General for Respondents.