MLD 2025 Judgments

2025 M L D 256

[Federal Shariat Court]

Before Iqbal Hameedur Rahman C.J and Khadim Hussain M. Shaikh, J

The State through Advocate General Khyber Pakhtunkhwa at Dar-ul-Qaza, Swat---Appellant

Versus

Shehbaz and 2 others---Respondents

Criminal Appeal No. 03-I of 2024, decided on 20th November, 2024.

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

----Ss. 302(b), 397 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Explosive Substances Act (VI of 1908), S.4---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S. 417---Qatl-i-amd, murder with dacoity, common intention, haraabah, possession of illicit weapons, recovery of explosive substance, act of terrorism---Appreciation of evidence---Appeal against acquittal---Contradictions in the statements of witnesses---Accused were charged for attacking an official pickup carrying Police Officials with hand grenade, Kalashnikovs and other firearm weapons which caused death of five Police Officials while injuries to two Constables and robbed cash and Kalashnikovs of the police with ammunition and pocket phone---Entire episode of the murder and dacoity had been witnessed by injured witness who was also complainant of the instant case and Head Constable, who was also injured during the occurrence---Complainant in his examination-in-chief stated that he along with the injured and dead bodies were brought to the hospital by public through private vehicles where he reported the matter to S.I. who was Investigating Officer of the case---Inspector stated that complainant reported the matter to him which he reduced to writing in shape of murasila---Similarly, FIR also revealed that murasila was sent by Additional SHO---Narration of facts of the incident by the complainant which were incorporated in shape of murasila depicted contradiction between the statements of complainant and Inspector which was fatal to the case of prosecution---Deposition of complainant clearly suggested that he had not seen the present respondents firing on them---Interestingly the respondents were not among those who were identified by the witnesses for firing at the time of occurrence and while recording their statements before the Trial Court---Appeal against acquittal was dismissed, in circumstances.

Shera Masih and another v. The State PLD 2002 SC 643 rel.

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

----Ss. 302(b), 397 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Explosive Substances Act (VI of 1908), S.4---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S.417---Qatl-i-amd, murder with dacoity, common intention, haraabah, possession of illicit weapons, recovery of explosive substance, act of terrorism---Appreciation of evidence---Appeal against acquittal---Identity of assailants---Accused were charged for attacking an official pickup carrying Police Officials with hand grenade, Kalashnikovs and other firearm weapons which caused death of five Police Officials while injuries to two Constables and robbed cash and Kalashnikovs of the police with ammunition and pocket phone---Surprisingly, when assailant threw hand grenades and resorted to firing, in such state of panic, how the injured eye-witnesses were able to identify the assailants and the official vehicle which was damaged---Not understandable that how the names and parentage of the assailants numbering 18, who belonging to different villages, came to the knowledge of the injured eye-witnesses---In view of such glaring contradictions, the ocular testimony of eye-witnesses was unworthy and did not inspire confidence, and could not be relied upon---Complainant narrated in murasila and also while appearing as witness that accused belonged to the banned Taliban organization but no source of information regarding their nexus with the Taliban was brought on record by the prosecution to prove its stance---Appeal against acquittal was dismissed, in circumstances.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Captain Abdul Rahim v. Naeem Sagar and others 2009 SCMR 288; The State through Mehmood Ahmed Butt v. Sharaf-ud-Din Sheikh and another 2013 SCMR 565 and Muhammad Zaman v. The State and others 2014 SCMR 749 rel.

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

----Ss. 302(b), 397 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Explosive Substances Act (VI of 1908), S.4---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S.417---Qatl-i-amd, murder with dacoity, common intention, haraabah, possession of illicit weapons, recovery of explosive substance, act of terrorism---Appreciation of evidence---Appeal against acquittal---Use of mortar shells and hand grenades not established---Accused were charged for attacking an official pickup carrying Police Officials with hand grenade, Kalashnikovs and other firearm weapons which caused death of five Police Officials while injuries to two Constables and robbed cash and Kalashnikovs of the police with ammunition, and pocket phone---Investigation Officer, in his cross-examination, admitted that no pieces of mortar shell and hand grenade were recovered from the place of occurrence nor any sign of mortar shell or hand grenade was observed on the vehicle---Similarly, no blood stained earth was taken into possession from the place of occurrence to prove the place as place of occurrence---Even no post mortem examination was conducted on the dead bodies of the Police Officers/Officials to ascertain the manner of receiving hand grenade injuries---Report of Fire Arms Experts of crime empties in absence of recovery of fire arms weapon was of no avail---Moreover, the case of present respondents was not distinguishable to that of acquitted co-accused and the State also could not give any cogent reason for not filing an appeal against the acquittal of co-accused, who, on the same set of evidence, was acquitted---Appeal against acquittal was dismissed, in circumstances.

(d) Criminal trial---

----Benefit of doubt---Principle---Conviction cannot be based on high probabilities---Suspicion, however strong, cannot take place of proof.

Yasin alias Ghulam Mustafa v. The State 2008 SCMR 336 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---Single circumstance creating reasonable doubt is sufficient to grant premium to the accused.

(f) Appeal against acquittal---

----Double presumption of innocence---Scope---Once acquittal is recorded, double presumption of innocence is created which cannot be interfered unless the appellate Court reaches the conclusion that findings are speculative and artificial or arbitrary---Possibility of formulation of another opinion by itself will not be sufficient to make interference.

The State and others v. Abdul Khaliq and others PLD 2011 SC 554 and Muhammad Zafar and others v. Rustam Ali and others 2017 SCMR 1639 rel.

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

----Ss. 410 & 417---Appeal against conviction and acquittal---Distinction---Extraordinary remedy of an appeal against an acquittal is quite different from an appeal preferred against the findings of conviction and sentence---Obviously, the appellate jurisdiction under S.417, Cr.P.C, can be exercised by the Court if gross injustice has been done in the administration of criminal justice, more particularly, wherein, findings given by Trial Court are perverse, illegal and based on misreading of evidence, leading to miscarriage of justice or where reasons advanced by Trial Court are wholly artificial.

Muhammad Bashar Naveed, Additional A.G., KP for the State.

Mrs. Surriya Marriam Khaleeq for Respondents.

Date of hearing: 29th October, 2024.

Judgment

Iqbal Hameedur Rahman, C.J.--- The respondents three in number faced trial in case FIR No. 16 of 2009 registered under different provisions of the Pakistan Penal Code, 1860 (Act XLV of 1860) (Hereinafter called the Code), Section 7 of the Anti-Terrorism Act , 1997 (Act XXVII of 1997) (Hereinafter called Act XXVII of 1997) and Section 17(4) of The Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (Hereinafter called The Ordinance) at Police Station Sheringal, District Dir Upper before the learned Judge, Anti Terrorism Court-III, Swat at Timergara, who while appraising evidence led, formulated the opinion about failure of prosecution to prove the multiple heads of charge against respondents resulting in their acquittal through judgment dated 28th January, 2016.

1. The State by preferring present appeal seeks annulment of judgment pleadings its perversity, result of mis-reading and non-reading of evidence, further suggesting grant of undue importance to the trivial contradictions resulting in failure of justice.

2. Earlier co-accused Sultan Muhammad son of Rehman Gul was arrested and put to face trial where proceedings against co-accused Shakoor son of Gul Azam and Naim Ullah son of Meer Afzal had been abated on account of their death on 21.04.2012 and finally co-accused Sultan Muhammad was acquitted by the trial Court on 23.10.2012.

3. Summarily, on 01.04.2009 at 17:45 hours PW-7 Hayatullah Khan S.I recorded FIR bearing Crime No.16/2009 (Ex.PA) at Police Station Sheringal, Dir Upper on receipt of murasla (Ex.PA/1) sent by PW-5 Waheedullah ASHO, on the basis of report made by PW-1 Shahabul Din HC-626 that on 01.04.2009 at 17:15 hours 18 nominated persons including present respondents and 20/21 unknown persons attacked upon an official pickup carrying police officials near Balow at Jatkot with hand grenade, Kalashnikovs and other fire arm weapons which caused death of five police officials including SHO Fateh-ur-Rehman and ASI Ameer Khan while injuries to two constables including the complainant and robbed cash of Rs.415,090/- which was amount of salaries of the police, Kalashnikovs of the police with ammunition and a pocket phone and decamped.

4. The present respondents became fugitive of law, who were arrested on 03.05.2013 and 30.11.2013 respectively as is evident from their Card of arrest (Ex.PW-5/16) and application for seeking custody (Ex.PW12/1).

5. On conclusion of the investigation of the case, the respondents were put to trial. Denial of the charge, led the prosecution to produce as many as 13 witnesses including Shahabul Din (PW-1) and HC Abdul Rahim (PW-8), (eye-witnesses) to substantiate the crime.

6. The respondents strenuously refuted the incriminating evidence put to them under section 342 of The Code of Criminal Procedure, 1898 (Act V of 1898) (Hereinafter called the Act V of 1898). None of them opted to record their statement on oath as envisaged under section 340 (2) of the Act V of 1898 or to produce any defence evidence.

7. After hearing the arguments and carefully examining the evidence, the learned trial Court, while taking into account the contradictions in the evidence, acquitted the respondents from all charges. The trial Court highlighted contradictions in the prosecution's evidence, particularly focusing on the identification of the accused. The relevant portion of the judgment is reproduced below:

"17. The above discussion leads the Court to the conclusion that at the time of firing both the injured were inside the vehicle, which was covered by a thick sheet called 'Tarpal' and that the firing was made from the front and left side of the vehicle. In such state of affairs the injured were not in a position to see and indentify the accused. Accused were also not previously known to the said PWs, who belonged to different villages. Hence, nomination of the accused by name by the injured with their parentage and residential addresses was impossible. Contention of the said injured that they were injured outside the vehicle, and they saw and identified the accused facing trial firing at them is not correct. Site plan also negates contention of the said PWs, wherein, they have been shown injured inside the vehicle. Identification of the accused at the spot is not established from convincing and reasonable proof. Relationship of present accused with any militant group is also not established. The prosecution evidence is not solid, reasonable, and convincing. From the prosecution evidence, involvement of accused facing trial in the occurrence is not established beyond doubt. Since, the prosecution could not prove its case against the accused facing trial beyond reasonable doubt, hence they deserve acquittal."

1. The State earlier preferred appeal before Hon'ble Peshawar High Court of Mingora Bench where proceedings against respondent No.3 Kaleem Khan were abated vide order dated 25th January, 2023 and finally for want of jurisdiction, it was remitted to this Court through judgment dated 05.12.2023.

2. Pre-admission notice was ordered to be issued to the respondents on 14.02.2024. In response to the process issued, the respondents Nos.1 and 2 put their appearance in the Court and maintained that they cannot engage advocate due to paucity of funds and prayed for providing them a counsel at State Expenses to represent them. Hence, Mrs. Surriya Marriam Khaleeq, Advocate was appointed for their defence at State Expenses out of the panel of Counsel maintained for the purpose.

3. The learned Law Officer representing the appellant/State contended that PW-1 and PW-8 have categorically and specifically identified the respondents who committed murder of five persons. He also contended that respondents remained absconders for four years which shows their involvement in the offence. Making reference to the site plan it was maintained that one of the injured was shown in the site plan which supports version of prosecution. Concluding the arguments, it was submitted that minor contradictions are not fatal to the case of prosecution and prayed for convicting the respondents and awarding sentence.

4. On the other hand, the learned counsel for the respondents contended that respondents have been acquitted due to benefit of doubt. Continuing the arguments it was submitted that reason for abscondence of the respondents cannot be said to be sufficient grounds for involvement in the crime. Contented that as per statement of the witnesses, the culprits were between the age of 30 to 45 years, however, the respondents while recording their statement of accused under section 340 (2) of the Act V of 1898 were of advance age. It was further contended that no recovery was made from the possession or on the pointation of respondents. Summing up the argument it was argued that there are major contradictions in statement of the prosecution witnesses which makes the entire case doubtful and prayed for dismissal of the appeal.

5. Arguments heard. Record perused.

6. The entire episode of the murder and dacoity has been witnessed by PW-1 Shahabul Din HC, who is an injured as well as complainant of the instant case and PW-8 Abdur Rahim HC, who was also injured during the occurrence. Shahabul Din/PW-1 in his examination-in-chief stated that he along with the injured and dead bodies were brought to the BHU by public through private vehicles where he reported the matter to S.I. Hayatullah Khan (PW-7) who was I.O. of this case. While Waheedullah Inspector/PW-5 stated that constable Shahabul Din/PW-1 reported the matter to him which he reduced to writing in shape of murasila. Similarly, FIR (Ex.PA) also reveals that murasila was sent by Waheedullah Khan ASHO Sheringal. Narration of facts of the incident by the complainant which were incorporated in shape of murasila depicts contradiction between the statements of PW-1 and PW-5 which is fatal to the case of prosecution.

7. The PW-1 while recording his examination-in-chief stated that "when we reached near 'Balow' near 'Jatkot' it was 17:15 hours. When accused Khalid, Fazli Manan, Saeedullah, Umar Khitab, Ferhad, Shakoor, Sultan Muhammad, Shehbaz, Zafar, Sultan Rehman, Naeemullah, Zakirullah, Fayaz, Wazir, Gul Aman, Faqiray, Laiqshah, Kashar Khan and other unknown accused started firing and also threw hand grenades at our vehicle". But during cross-examination he contrarily stated that "I was sitting in the rear portion of the vehicle, which was covered by a thick sheet called 'Tarpall'. I had not seen any of the accused firing on us, when I was in the vehicle. The witness volunteered that it was only after I jumped from the vehicle I saw the accused firing on us. I received five fire arm injuries on my body". The PW-1 in his cross-examination also stated that, "I and said Abdul Rahim had jumped from the vehicle simultaneously". However, Abdul Rahim HC/PW-8 in his cross-examination contradicted that, "as we were sitting in the rear portion of the vehicle our faces were to the back side of the vehicle. The firing was started from the front side and left side of the vehicle. When I jumped out of the vehicle, I was hit on my left leg. While my other colleagues were hit inside the vehicle". The PW-1 also stated in his cross-examination that, "I had seen only eight persons firing on us. Their age was ranging from 30 to 45 years. I do not know whose fire shot had hit me" which clearly suggests that he had not seen the present respondents firing on them. Interestingly the respondents were not among those who made firing identified by the PW-1 and PW-8 at the time of occurrence and while recording their statements before the trial Court. It is also important to note that Shahbaz and Muhammad Galeem/respondent No.3 while recording their statement under section 342 of the Act V of 1898 about six and half years after the incidents were of 70/71, 58/59 and 71/72 years of age respectively negating the stance of PW-1.

8. Question of corroboration was dealt with by Hon'ble Supreme Court in case of "Shera Masih and another v. The State" (PLD 2002 SC 643) and it was held at page-652 as follows:

"We, therefore, hold that in a case in which it is found that veracity of the eye-witnesses and direct evidence alone is not enough to satisfy the mind of Court and corroboration from independent source is felt necessary, the ocular evidence should be read together with corroboratory and confirmatory evidence to determine the guilt of a person. However, the corroboration may be sought from direct or circumstantial evidence and it need not amount to confirm the whole story-narrated by the witness rather it would be sufficient only in material points under consideration and further the degree of corroboration rests on substantial discretion of the Courts which vary in the facts and circumstances of each case. The corroboration is insisted upon when the evidence is not of such a degree which should be made basis of conviction such as in case of enmity between the parties or the witnesses are interested, related or inimical and or not independent or in a situation in which it is felt that without corroboration conviction only on the basis of ocular account is not safe. The corroboration can even be sought from the suggestion put by defence to the witnesses in cross-examination and admission of accused which may satisfy the mind of the Court regarding truthfulness of the witnesses as the rule of corroboration being rule of abundant caution is followed only to satisfy the mind of the Court regarding the guilt of an accused and it is not an inflexible rule to be followed necessarily in each case in all circumstances. There is ample case-law on the point that the rule of independent corroboration need not to be insisted in the cases in which no exaggeration in the statements of witnesses is found and their veracity is not suffering from any apparent defect but in a case in which it is felt necessary it should not be insisted in each and every detail rather due importance should be given to the conclusion drawn by the trial Court as it had the opportunity of watching the demeanors of witnesses to form first hand impression to the truthfulness or otherwise of their evidence."

It is surprising that when assailant threw hand grenades and resorted to firing, in such state of panic, how the injured eye-witnesses were able to identify the assailants in which official vehicle was also damaged. It is also not understandable that how the names and parentage of the assailants numbering 18, who were belonging to different villages, came to the knowledge of the injured eye-witnesses i.e. PW-1 and PW-8. In view of such glaring contradictions, we are of the considered view that the ocular testimony of PW-1 and PW-8 is unworthy and does not inspire confidence cannot be relied upon.

1. The Complainant/PW-1 also narrated in murasila Ex.PA/1 and while appearing as PW-1 stated that accused belonged to the banned Taliban organization but no source of information regarding their nexus with the Taliban was brought on record by the prosecution to prove its stance.

2. PW-7 DSP Hayatullah, who was S.I./ Investigation Officer, in his cross-examination admitted that no pieces of mortar shell and hand grenade were recovered from the place of occurrence nor any sign of mortar shell or hand grenade was observed on the vehicle. Similarly, no blood stained earth was taken into possession from the place of occurrence to prove the place as place of occurrence. Even no post mortem examination was conducted on the dead bodies of the police officers/officials to ascertain the manner of receiving hand grenade injuries. Report of fire arms experts Ex.PF of crime empties in absence of recovery of fire arms weapon is of no avail.

3. The case of present respondents is not distinguishable to that of acquitted co-accused Sultan Muhammad and the State also could not give any cogent reason for not filing an appeal against the acquittal of accused Sultan Muhammad, who, on the same set of evidence, was acquitted.

4. It is to be noted that conviction cannot be based on high probabilities. Suspicion, however, strong cannot take the place of proof. Reliance is placed upon "Yasin alias Ghulam Mustafa v. The State" (2008 SCMR 336). Relevant para is reproduced herein below:-

"It is also an established principle of the administration of criminal justice that conviction cannot be based on any other type of evidence howsoever, convincing it may be, unless direct or substantive evidence is available. Even, guilt of an accused cannot be based merely on high probabilities that may be inferred from evidence in a particular case."

Failure of prosecution to prove identity of the respondents has put a serious dent to the case of prosecution, benefit of which has to be granted to the respondents as a matter of right.

1. It is the Rule of law as enunciated in "Ghulam Sikandar and another v. Mamaraz Khan and others" (PLD 1985 SC 11), "Captain Abdul Rahim v. Naeem Sagar and others" (2009 SCMR 288), "The State through Mehmood Ahmed Butt v. Sharaf-ud-Din Sheikh and another" (2013 SCMR 565) and "Muhammad Zaman v. The State and others" (2014 SCMR 749) that ordinarily following points shall be considered by the Appellate Court amongst others while re-appraising the evidence to make interference in the judgment of acquittal.

i) Slowness of the appellate Court to make interference in the verdict of acquittal.

ii) Attachment of due weight and consideration to the findings of the lower Court particularly when had the occasion not only to record the evidence but also observing the demeanor of the witnesses.

iii) Decision of acquittal affirms the initial plea regarding innocence of the accused unless proved otherwise.

iv) Right of the accused to the benefit of doubt.

v) Admission of evidence illegally.

vi) Ignoring the material evidence.

vii) Manifest wrong, perversity or uncalled for conclusion from facts proved on record.

viii) Parameter for re-appraisal of evidence has to be applied strictly being different as compared to the yardstick for interference in the judgment of conviction.

Possibility of formulation of another opinion does not furnish any ground to set aside the judgment of acquittal if based on evidence.

1. Needless to state that even a single circumstance creating reasonable doubt would be sufficient to grant premium to the accused. Once acquittal is recorded, double presumption of innocence is created which cannot be interfered unless the appellate Court reaches to the conclusion that findings are speculative and artificial or arbitrary. Possibility of formulation of another opinion by itself would not be sufficient to make interference. (See: "The State and others v. Abdul Khaliq and others" (PLD 2011 SC 554) and "Muhammad Zafar and another v. Rustam Ali and others" (2017 SCMR 1639). Relevant para is reproduced hereinbelow:-

"From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced that the scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow in interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence; such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. It has been categorically held in a plethora of judgments that interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly artificial or a shocking conclusion has been drawn. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re-appraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be upset, except when palpably perverse, suffering from serious and material factual infirmities. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals."

2025 M L D 314

[Federal Shariat Court]

Before Khadim Hussain M. Shaikh, J

Juman---Petitioner

Versus

The State---Respondent

Criminal Revision No. 01-K of 2024, decided on 27th November, 2024.

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

----Art. 4---Recovery of liquor---Appreciation of evidence---Safe custody and safe transmission of the property to the laboratory for its analysis not proved---Prosecution case was that two cartons containing 54 bottles of white wine were recovered from the possession of the accused---From a perusal of the record, it was seen that recovery of 54 pints (bottles) purported to be wine was shown to have been made from the possession of the petitioner on 24.03.2023, but only one pint out of 54 pints (bottles) was sent to chemical analyst through Police Constable---According to Investigating Officer, the case property was kept at Malkhana through WHC, but neither said Police Constable, who allegedly carried and delivered the parcel to the Chemical Examiner's laboratory, was examined by the prosecution nor WHC, under whose custody the property was kept, was examined and as such the prosecution had failed to establish the safe custody of the property and safe transmission of even one pint (bottle), shown to have been sent for its analysis to the laboratory---Hence no sanctity could be attached to the Chemical Examiner's Report, relating to one pint (bottle)---Appeal against conviction was allowed, in circumstances.

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

----Art. 4---Recovery of liquor---Appreciation of evidence---No representative sample taken from each bottle---Prosecution case was that two cartons containing 54 bottles of white wine were recovered from the possession of the accused---One pint (bottle) allegedly sent to the Chemical Examiner's laboratory for its analysis, by no stretch of imagination, could be the representative sample of the remaining 53 pints (bottles); for that all the 54 pints (bottles), shown recovered, and/or at least some substance from each pint (bottle) was required to be sealed separately and sent to the Chemical Analyst so as to determine as to which substance all the 54 pints (bottles) contained---Admittedly, opinion of Chemical Examiner was not obtained to prove the nature and nomenclature etc. of the substance contained in 53 remaining pints (bottles), and as such there was absolutely no evidence available on the record to suggest that the alleged remaining 53 pints (bottles) contained wine---Even remaining substance of the pint (bottle) after consumption of 100 ml fluid during the process of analysis, shown to have been kept in the sealed condition by the Chemical Analyzer, as revealed from Chemical Examiner's Report, was not produced in Court---Appeal against conviction was allowed, in circumstances.

(c) Prohibition (Enforcement of Hadd) Order (IV of 1979)---

----Art. 4---Recovery of liquor---Appreciation of evidence---No document presented to establish injury sustained by accused---Suppression of facts---Prosecution case was that two cartons containing 54 bottles of white wine were recovered from the possession of the accused---According to the contents of FIR the petitioner while running away had fallen down and sustained injury on his right knee and as a result whereof he was apprehended by the police party---Neither mashirnama of such injury was prepared by the Investigating Officer nor any document relating to his referral and/or examination by a Medical Officer was produced in evidence---All the three witnesses, who were examined by the prosecution, purposely suppressed such material aspect of the case and did not utter a single word about petitioner sustaining the injury on his right knee as disclosed in the FIR---Appeal against conviction was allowed, in circumstances.

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

----Art. 4---Recovery of liquor---Appreciation of evidence---Contradictions in the statements of witnesses---Prosecution case was that two cartons containing 54 bottles of white wine were recovered from the possession of the accused---According to complainant "accused ran towards northern side prior to the arrest" but mashir had stated that "the accused on seeing police tried to escape towards western side"---Investigating Officer in cross-examination had stated that he did not interrogate any person at time of conducting site inspection but mashir had stated that Investigating Officer interrogated the people of the locality about the incident and they disclosed that the incident had taken place, whereas complainant did not state about Investigating Officer's interrogating the people of the locality about the incident---Investigating Officer had stated that on the same day, he left Police Station for inspecting the place of incident in a private vehicle along with complainant and mashirs of the case and conducted site inspection on the pointation of complainant of the case, but complainant did not state a single word about him accompanying Investigating Officer to the place of incident and about his showing the place of incident to the Investigating Officer---Mashir also did not state about the complainant accompanying the Investigating Officer to the place of incident for its inspection, but he stated that Investigating Officer conducted site inspection on their pointation---Appeal against conviction was allowed, in circumstances.

(e) Prohibition (Enforcement of Hadd) Order (IV of 1979)---

----Art. 4---Criminal Procedure Code (V of 1898), S. 103---Recovery of liquor---Appreciation of evidence---Non-association of private witnesses while conducting arrest and recovery proceedings---Prosecution case was that two cartons containing 54 bottles of white wine were recovered from the possession of the accused---Record showed that Investigating Officer had admitted in his cross-examination that place of occurrence was a busy road---Mashir had stated in his cross-examination that Investigating Officer interrogated the people of locality about the incident and they disclosed that the incident had taken place, but no independent person from the locality was associated with the alleged recovery proceedings and/or even during the course of inspection of the place of incident by the prosecution nor any effort was shown to have been made for doing so---This was violative of mandatory provisions of S.103, Cr.P.C, as the officials making searches, recovery and arrest, were required to associate private persons, more particularly, in cases in which the availability of private persons could not be disputed; this was important for the transparency in the recovery proceedings and to eliminate the chance of fabrication---Appeal against conviction was allowed, in circumstances.

The State v. Bashir and others PLD 1997 SC 408 rel.

(f) Criminal trial---

----Benefit of doubt---Principle---Where single circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, benefit thereof is to be extended to the accused not as a matter of grace or concession, but as matter of right.

Ghulam Qadir and 2 others v. The State 2008 SCMR 1221 and Muhammad Mansha and Muhammad Akram v. The State 2009 SCMR 230 rel.

Imtiaz Ali for Petitioner.

Ms. Seema Zaidi, Additional Prosecutor General, Sindh for the State.

Date of hearing: 18th September, 2024.

Judgment

Khadim Hussain M. Shaikh, J.---By means of the captioned Criminal Revision, the petitioner named above has called in question judgment dated 31.01.2024, passed by the 2nd learned Additional Sessions Judge, Badin, dismissing Crl. Appeal No.09 of 2023 re-Juman Sheedi v. The State and maintaining the conviction and sentence of 18 months with fine of Rs.20,000/- awarded to the petitioner for offence punishable under Article 4 of The Prohibition (Enforcement of Hadd) Order, 1979 ("The Hadd Order") vide judgment dated 25.08.2023, passed by the learned 2nd Civil Judge and Judicial Magistrate Badin in Cr. Case No.47 of 2023 re-The State v. Juman Sheedi, arising out of Crime No.32 of 2023, registered at Police Station Kario Ganhwar for offence under Articles 3 and 4 of The Hadd Order, extending the petitioner benefit of Section 382-B of The Code of Criminal Procedure, (Act V of 1898) ("The Code").

1. Briefly, the facts of the case are that on 24.03.2023 at 1600 hours, complainant ASI Bair Rebari of CIA police Badin, lodged his FIR being the subject crime at P.S Kario Ganhwar, Badin mainly stating therein that he along with his subordinate staff namely PC Allah Bux, PC Ali Akbar and DPC Ashfaque Ahmed set out from CIA Center, Badin in Government Vehicle No.SPE-930 vide roznamcha entry No.06 dated 24.03.2023 at 1300 hours for patrolling and for taking action against drug peddlers. It is alleged that after patrolling from difference places they stopped their vehicle adjacent to Notkani Sim Nala at Golarchi road and started checking the vehicles. It is alleged that the petitioner riding on black color motorcycle was seen coming from Golarchi side and on their signal the petitioner stopping his motorbike, tried to run away, but he fell down due to which he received injury on his right knee, resultantly, the police party apprehended him. On checking the white Kata (sack) lying on the front side of the bike, the police party secured two cartons containing in all 54 white whisky wine pints of London Dry Jin i.e. 41 pints in one Kata and 13 pints in another Kata, out of which one pint (bottle) was sealed as a sample for chemical analysis and whereas the remaining pints (bottles) were sealed in the same Kata (sack). The motorcycle was found to be CD-70 of black color, Chassis No.HA-386747, Engine No.EL2214 Model 2023, having no registration number. The complainant then prepared mashirnama of arrest and recovery and obtained signatures of mashirs PC Ali Akbar and PC Allah Bux thereon. Thereafter the petitioner and the secured property were brought at Police Station Kario Ganhwar, where the subject FIR was lodged by the complainant on behalf of the State. After usual investigation, the petitioner was sent up with the challan to face his trial. Then following the legal formalities, a formal charge was framed against the petitioner to which he pleaded not guilty and claimed his trial.

2. To prove its case, the prosecution examined PW.1 complainant of the case ASI Bair Rebari at Ex.3, who produced departure entry No.6 whereby he left CIA Centre, Badin at Ex.3/A, memo. of arrest and recovery at Ex.03/B, arrival/case registration entry No.10 at Ex.3/C and FIR No.32/2023 at Ex.3/D; PW.2 mashir of the case namely PC Ali Akbar at Ex.4, who produced memo. of site inspection at Ex.4/A; and, PW.3 Investigating Officer ASI Pir Bux Laghari of P.S Kario Ganhwar at Ex.5, who produced entry No.22 of register No.19, whereby he deposited case property to Malkhana of P.S at Ex.5/A, departure and arrival entries Nos.14 and 24 whereby he went to visit place of incident and returned back at P.S. Kario Ganwhar at Ex.5/B, departure and arrival entries Nos.28 and 14 whereby PC Zahid Hussain went to deposit sample for chemical examination and returned back at P.S at Ex.5/C, letter dated 27.03.2023, addressed to Incharge Chemical Examiner Karachi for analysis of the sample at Ex.5/D, Receipt at Ex.5/E and Chemical report at Ex.5/F. The prosecution side was closed via statement at Ex.06. Whereafter the statement of the petitioner under Section 342 of The Code was recorded, wherein he denying the prosecution allegations and recovery of the alleged pints of wine, professed his innocence. He, however, neither examined himself on oath nor did he examine any person as his defence witness.

3. On the conclusion of the trial and after hearing the parties' counsel, the learned trial Court vide judgment dated 25.08.2023 convicted and sentenced the petitioner, who then filed the aforesaid Crl. Appeal No. 09 of 2023 against the conviction judgment dated 25.08.2023, passed by the learned trial Court, which has been dismissed by the learned 2nd Additional Sessions Judge Badin vide judgment dated 31.01.2024, as discussed in paragraph-I supra. Having felt aggrieved by both the aforesaid judgments passed by the learned trial Court as well as the learned Appellate Court, the petitioner has preferred this Criminal Revision Petition.

4. Mr. Imtiaz Ali, learned Advocate for the petitioner has mainly contended that the petitioner is innocent and he has been falsely implicated in this case by the police at the instance of an influential person namely Rais Manoo Nizamani; that there are material contradictions in the evidence led by the prosecution; and, that the prosecution has failed to prove its case against the petitioner beyond a reasonable doubt. The learned counsel prays for acquittal of the petitioner.

5. The learned Additional Prosecutor General, Sindh, supporting the impugned judgments of both the learned Courts below, has contended that no enmity or animosity of the police officials, examined by the prosecution has been proved by the defence, therefore, per her, the contradictions and discrepancies in the prosecution case may be ignored; and, that the learned trial Court as well as Appellate Court have rightly passed the impugned conviction judgments against the petitioner. The learned Additional Prosecutor General prays for dismissal of the instant Criminal Revision Petition.

6. I have considered the arguments of the learned Counsel for the petitioner and the learned Addl. Prosecutor General for the State and have gone through the evidence brought on record with their assistance.

7. From a perusal of the record, it would be seen that recovery of 54 pints (bottles) purported to be wine was shown to have been made from the possession of the petitioner on 24.03.2023, but only one pint out of 54 pints (bottles) was sent vide letter dated 27.03.2023 Ex.5/D to chemical analyzer through PC Zahid Hussain; according to PW.3 Investigating Officer ASI Pir Bux, the case property was kept at Malkhana through WHC Bhai Khan Mangrio, but neither PC Zahid Hussain, who allegedly carried and delivered the parcel in the chemical examiner's laboratory, was examined by the prosecution nor WHC Bhai Khan Mangrio, under whose custody the property was kept, was examined and as such the prosecution has failed to establish the safe custody of the property and safe transmission of even one pint (bottle), shown to have been sent for its analysis to the laboratory. And, hence no sanctity could be attached to the chemical examiner's report Ex.5/F, relating to one pint (bottle); furthermore, one pint (bottle) allegedly sent to the chemical examiner's laboratory for its analysis, by no stretch of imagination could be the representative sample of the remaining 53 pints (bottles), for that all the 54 pints (bottles), shown recovered, and/or at least some substance from each pint (bottle) was required to be sealed separately and sent to the chemical analyzer so as to determine as to which substance all the 54 pints (bottles) contained; admittedly, opinion of chemical examiner, was not obtained to prove the nature and nomenclature etc of the substance contained in 53 remaining pints (bottles), and as such there is absolutely no evidence available on the record to suggest that the alleged remaining 53 pints (bottles) contained wine; even remaining substance of the pint (bottle) after consumption of 100 ml fluid during the process of analysis, shown to have been kept in the sealed condition by the chemical analyzer, as revealed from chemical examiner's report Ex.5/F, was not produced in Court nor the motorcycle, allegedly secured from the petitioner at the time of incident was produced in evidence; according to the contents of FIR the petitioner while running away had fallen down and sustained injury on his right knee and in result whereof he was apprehended by the police party, but neither mashirnama of such injury was prepared by the Investigating Officer nor any document relating to his referral and/or examination by a medical officer was produced in evidence, even all the three PWs, who examined by the prosecution, purposely suppressed such material aspects of the case and did not utter a single word about petitioner's sustaining the injury on his right knee as disclosed in the subject FIR; according to PW.1 complainant Bair Rebari "accused ran towards northern side prior to the arrest" but PW.2 mashir Ali Akbar has stated that "the accused on seeing us tried to escape towards western side" PW.3 Investigating Officer Pir Bux Laghari in cross-examination has stated that "I did not interrogate any person at time of conducting site inspection" but PW.2 mashir Ali Akbar has stated that "Investigating Officer interrogated the people of the locality about this incident and they disclosed that this incident had taken place", while PW.1 complainant Bair Rebari did not state about IO's interrogating the people of the locality about the incident; PW.3 Investigating Officer Pir Bux Laghari has stated that "on the same day, I left P.S for inspecting the place of incident in a private vehicle along with complainant and mashirs of the case vide entry No.14 at about 1645 hours and conducted site inspection on the pointation of complainant of the case", but PW.1 complainant ASI Bair Rebari did not state a single word about his having accompanied PW.3 Investigating Officer Pir Bux to the place of incident and about his showing the place of incident to the Investigating Officer and PW.2 mashir Ali Akbar also did not state about the complainant's accompanying the Investigating Officer to the place of incident for its inspection, but he has stated that "IO conducted site inspection on our pointation". It has also not been brought on record as to who was the owner and/or driver of that private vehicle in which the Investigating Officer and other staff went to inspect the place of incident nor the pattern etc of that private vehicle was disclosed. Per PW.3 ASI Pir Bux vide departure entry No.14 dated 24.03.2023, he along with complainant and sub-ordinate staff left the P.S and went to inspect the place of incident, but mashirnama of inspection at Ex.04/A produced by Ali Akbar does not reveal reference of departure entry No.14.

8. Moreover, PW.3 Investigating Officer Pir Bux Laghari has admitted in his cross-examination that "it is correct to suggest that Kario Golarchi Road is busy road" and PW.2 mashir Ali Akbar has stated in his cross-examination that "I.O interrogated the people of locality about this incident and they disclosed that this incident had taken place", but no independent person from the locality was associated with the alleged recovery proceedings and/or even during the course of inspection of the place of incident by the prosecution nor any effort was shown to have been made for doing so that is violative of mandatory provisions of Section 103 of The Code, for the official making searches, recovery and arrest, are required to associate private persons, more particularly, in case in which the availability of private persons cannot be disputed, for the transparency in the recovery proceedings and to eliminate the chance of fabrication; it is also strange enough that PW.2 PC Ali Akbar, who is an police official of CIA Center, Badin and subordinate to PW.1 ASI Bair Rebari, acted as mashir of all purposes, but no official from Police Station Kario Ganhwar was associated even as mashir of inspection of place of incident. In case of The State v. Bashir and others (PLD 1997 SC 408), the Hon'ble Supreme Court of Pakistan has held that:

"It has been repeatedly held that the requirements of Section 103, Cr.P.C., namely, that two members of the public of the locality should be mashirs of the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular case it was not possible to have two mashirs from the public."

1. Manifestly, the witnesses, examined by the prosecution despite being skillful and expert witnesses of police department with vast service career, are inconsistent on material aspects of the case and their statements regarding the mode and manner in which the recovery was shown to have been made, being contradictory to each other, are self-destructive as discussed supra.

2025 M L D 1500

[Federal Shariat Court]

Before Iqbal Hameedur Rahman, C.J, Dr. Syed Muhammad Anwer

and Ameer Muhammad Khan, JJ

Muhammad Aman---Appellant

Versus

The State---Respondent

Criminal Appeal No. 5/I and Criminal Reference No.01/I of 2024, decided on 30th May, 2025.

Offence of Qazf (Enforcement of Hadd) Ordinance (VIII of 1979)---

----S. 7---Commission of offence of qazf---Appreciation of evidence---Accused was charged for leveling allegation containing imputation of zina against the complainant while recording his statement in a civil suit---Perusal of the record revealed that the complainant during his cross examination in his criminal petition of Qazf, recorded on 16.05.2023 admitted that some quarrel happened between the appellant/accused and his counsel after recording of that piece of statement containing the disputed allegation of zina, on the basis of that statement subsequently the case of Qazf was filed---Such piece of statement had raised a question that some dispute did happened inside the Court, which had rendered some doubts regarding the recording of statement containing the allegation of zina amounting to Qazf, which apparently the Trial Court had ignored---Any statement which was a part of judicial proceedings containing signatures of the Presiding Officer i.e. the Court in that case, bore a presumption that the statement was recorded by the same Presiding Officer/Court himself, unless proven otherwise, therefore, in that case the Trial Court had failed to appreciate the evidence of the parties available on record to evaluate that whether that statement containing the allegation of zina was recorded by the Court itself or not, or whether the Court was present at that time while the alleged statement was being recorded or not---Said aspects of the case not only were relevant but crucial in Hudood laws because such questions were pivotal to evaluate the authenticity of the evidence for proving the allegation against the accused beyond any shadow of doubt---Perusal of the record revealed that the Trial Court had failed to adopt the procedure mentioned in S.203-B, Cr.P.C, which the Court was bound to follow in the light of S.17 of the Ordinance, 1979---However, the Trial Court failed to understand that a complaint could not be declared as a sacrosanct document and its impact needed to be examined before granting permission---Thus, non-compliance of procedure as noted by the Trial Court had deprived the appellant of his right of having a fair trial, therefore, in such view of the matter, the case was remanded back to the Trial Court for de novo trial. Consequently, the captioned criminal reference filed for confirmation of the punishment awarded to appellant was answered in negative---Appeal was disposed of.

Abdul Mukhtadar v. District and Sessions Judge, Jhang 2010 SCMR 194 and Muhammad Rajar v. The State through Prosecutor General Sindh and others PLD 2025 SC 40 rel.

Qazi Zaki-ud-Din for Appellant (in Criminal Appeal No. 5/I of 2024).

Muhammad Amir Malik for Respondent No. 2. (in Criminal Appeal No. 5/I of 2024).

Asad Jan Durrani, Addl. A.G, KP for the State.

Date of hearing: 29th April, 2025.

Judgment

Dr. Syed Muhammad Anwer, J.---Through this judgment we have decided the captioned criminal appeal arising out of the judgment passed by the Additional Sessions Judge / IZQ, Upper Chitral, dated 18.03.2024, whereby the appellant Muhammad Aman has been awarded punishment under Section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (Ordinance of 1979) with whipping of 80 stripes to the appellant. We have also answered the captioned Criminal Reference No. 01/I of 2024, filed by the Additional Sessions Judge / IZQ, Upper Chitral for confirmation of the punishment awarded through the impugned judgment, dated 18.03.2024.

1. Brief facts of the case are that on 01.08.2022, the appellant Muhammad Aman recorded his statement as DW-8 in a civil case, titled "Sharif Aman v. Muhammad Aman", in the court of the Civil Judge/IQ, Booni, Upper Chitral, wherein he allegedly levelled allegations of Zina against the plaintiff i.e. Sharif Aman, respondent No.2 i.e. complainant in the instant case. The appellant, who is also a real brother of the respondent No.2 / complainant, while recording his statement in the abovementioned civil case, which was regarding some property dispute between these two real brothers, has allegedly levelled an allegation of Zina that the complainant Sharif Aman "commits Zina", thus committed Qazf, as a result whereof the respondent No.2 (Sharif Aman) filed a complaint of Qazf, which was decided by the Additional Sessions Judge / IZQ, Upper Chitral through the impugned judgment, dated 18.03.2024.

2. After submission of the complaint under Section 265-B of the Criminal Procedure Code (Cr.P.C) proceedings were initiated and statement of the complainant (respondent No.2) was recorded on oath, where-after the appellant (accused) was summoned and subsequently upon his appearance before the Court charge was framed against him on 10.12.2022, to which the appellant pleaded not guilty and claimed trial. Thereafter, the case was fixed for production of evidence by the prosecution and consequently from the complainant side, only one witness i.e. the complainant himself appeared as PW-1, who re-affirmed the allegation of Qazf levelled against him as mentioned in the complaint. In support of his statement he produced the relevant record of the civil case, titled "Sharif Aman v. Muhammad Aman", which was exhibited as Exh.PW-1/1 and Exh.PW-1/2.

3. After closure of the prosecution evidence, statement of the appellant (accused) was recorded under Section 342, Cr.P.C on 22.06.2023, wherein he opted to produce evidence in defense, hence his statement under Section 340(2), Cr.P.C was recorded as DW-1. In his statement the appellant (accused) took the stance that he never made any such statement in that civil case, which is relied upon by the complainant, instead the appellant took the stance that when his statement-in-chief was being recorded in a civil case, referred hereinabove, the Presiding Officer i.e. the Civil Judge was not present in the court. Furthermore, according to him the parties in that case quarreled while the statement of the accused was being recorded in the referred civil matter on 01.08.2022 and when that quarrel got prolonged, the Presiding Officer left the court and the alleged statement was recorded. Hence, on the basis of same the complaint of Qazf was filed against him, which, according to him, was fraudulently managed by the complainant (respondent No.2) under some premeditated scheme. He further stated that even on 18.08.2022, when the cross-examination was being recorded in that same civil suit, the Presiding Officer was not present initially, rather he arrived after a while, so according to the appellant, pages Nos. 5 to 10 in the record of that case were not recorded by the Presiding Officer himself. The relevant portion of the statement recorded by the appellant (accused) in his defense, is as follow:

4. Similarly, when questions were put to the appellant (accused) in the instant case while recording his statement under Section 342, Cr.P.C, the appellant (accused) reiterated his stance that he never made such statement, as alleged against him, containing material that amounts to Qazf, rather the Presiding Officer of the Civil Court was not present at that specific time when such statement was recorded against him, because the Presiding Officer left the room due to a quarrel between the parties inside the Court. The appellant (accused) also took the stance that though the complainant is his real brother, but they are at loggerheads in a property dispute involving in several civil and criminal cases, therefore, due to such enmity the respondent No.2 (complainant) managed to maneuver the recording of the alleged statement containing allegation of Zina amounting to Qazf against him in order to put an undue pressure upon him of a serious criminal case. The appellant (accused) took the stance that the complainant (respondent No.2) trapped him through a statement which is wrongly recorded against him.

5. The alleged statement upon which the complaint of Qazf under Section 7 of the Ordinance of 1979 was filed against the appellant was recorded in the Court of law in some civil matter as mentioned hereinabove, which was pending between the parties. The learned counsel of the appellant argued in the defence that the statement so recorded was not before the Court of competent jurisdiction, therefore, the same is not admissible and does not fulfill the requirement of Section 6(1)(b) of the Ordinance of 1979. On the very outset, this argument of the appellant's counsel that the statement is not admissible in this case because the statement was not made before the court of competent jurisdiction does not hold any ground as Section 6(1)(b) of the Ordinance of 1979 states as follows:

6. Proof of qazf liable to hadd. (1) Proof of qazf liable to hadd shall be in one of the following forms, namely:

(a)

(b) the accused commits 'qazf' in the presence of the Court.

The bare reading of the above referred Section shows that it does not contain any such qualifier that the statement containing Qazf should be made before a court of competent jurisdiction, rather it only shows that if a statement is made in the presence of the court, the same is enough to be accepted as a prove of Qazf liable to Hadd. The alleged statement in this case was duly recorded by a Civil Judge in a civil matter titled (Sharif Aman v. Muhammad Aman) containing the seal and signatures of a Civil Judge, which means a presumption is attached to that statement that it was recorded by the Civil Judge i.e. the Court itself and this presumption can only be rejected upon presentation of some facts to prove it otherwise. In the instant case, we have noticed that the appellant (accused) not only denounced the alleged statement but also stated that while recording that statement some kind of dispute occurred between the parties or between their counsels, hence allegedly the statement was mis-recorded or maneuvered on the behest of the complainant to fulfill some pre-meditated designs against the accused in order to further entangle him in some criminal case as he did subsequently by filing the instant Qazf case against him.

1. Upon perusal of the record it reveals that the complainant (respondent No.2) while recording his statement completely denied all the suggestions made to him being wrong suggestions, however during his cross-examination as PW-1 in his criminal petition of Qazf, recorded on 16.05.2023, the complainant admitted that some quarrel happened between the appellant (accused) and his counsel after recording of that piece of statement containing the disputed allegation of Zina, on the basis of that statement subsequently the case of Qazf was filed. The complainant voluntarily described about this quarrel in the following words:

This piece of statement has raised a question that some dispute did happened inside the Court, which has rendered some doubts regarding the recording of statement containing the allegation of Zina amounting to Qazf, which apparently the Trial Court has ignored.

1. We again reiterate it here that any statement which is a part of judicial proceedings containing signatures of the Presiding Officer i.e. the Court in that case, bears a presumption that the statement was recorded by the same Presiding Officer / Court himself, unless proven otherwise, therefore, in this case we have noticed that the Trial Court has failed to appreciate the evidence of the parties available on record to evaluate that (a) whether that statement containing the allegation of Zina was recorded by the Court itself or not, or (b) whether the court was present at that time while the alleged statement was being recorded or not? These aspects of the case not only are relevant but crucial in Hudood laws because such questions are pivotal to evaluate the authenticity of the evidence for proving the allegation against the accused beyond any shadow of doubt. It is settled law in the Holy Quran and Sunnah that the execution of Hadd punishment must be devoid of any kind of doubt.

2. The reason of lapses pointed out hereinabove revealed upon the perusal of the record that the Trial Court has failed to adopt the procedure mentioned in section 203-B of Cr.P.C, which the Trial Court was bound to follow in the light of Section 17 of the Ordinance of 1979, which states as follow:

17. Application of the Code of Criminal Procedure, 1898 (Act V of 1898).--(1) Unless otherwise expressly provided in this Ordinance, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), hereinafter referred to as the said Code, shall apply, mutatis mutandis, in respect of cases under this Ordinance:

Provided that an offence punishable under Section 7 shall be triable by a Court of Sessions and not by or before a Magistrate authorized under Section 30 of the said Code and an appeal from an order of the Court of Sessions shall lie to the Federal Shariat Court.

Provided further that a trial by, or proceeding before, the Court of Sessions under this Ordinance shall ordinarily, be held at the headquarters of the Tehsil in which the offence is alleged to have been committed or, as the case may be, the husband who has made the accusation ordinarily resides.

(2) The provisions of the said Code relating to the confirmation of the sentence of death shall apply, mutatis mutandis, to the confirmation of a sentence under this Ordinance.

(3) The provisions of subsection (3) of Section 391 or Section 393 of the said Code shall not apply in respect of the punishment of whipping awarded under this Ordinance.

(4) The provisions of Chapter XXIX of the said Code shall not apply in respect of a punishment awarded under Section 7 of this Ordinance.

Hence, according to this Section of the Ordinance of 1979, the Code of Criminal Procedure shall apply on the proceedings of matters pertaining to Qazf mutatis mutandis. In this connection, the relevant provision of the Cr.P.C, which the Trial Court was bound to follow is Section 203-B Cr.P.C, complaint in case of Qazf, which states as follow:

203B. Complaint in case of Qazf.-(1) Subject to subsection (2) of Section 6 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (VIII of 1979), no Court shall take cognizance of an offence under section 7 of the Said Ordinance, except on a complaint lodged in a Court of competent jurisdiction.

(2) The Presiding Officer of a Court taking cognizance of an offence on a complaint shall at once examine on oath the complainant and the witnesses as mentioned in section 6 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979 (VIII of 1979) (VIII of 1979) of the act of Qazf necessary to the offence.

(3) The substance of the, examination of the complainant and the witnesses shall be reduced to writing and shall be signed by the complainant, and the witnesses, as the case may be, and also by the Presiding Officer of the Court.

(4) If in the opinion of the Presiding Officer of a Court, there is sufficient ground for proceeding the Court shall issue summons for the personal, attendance of the accused.

(5) The Presiding Officer of a Court before whom a complaint is made or to whom it has been transferred may dismiss the complaint, if, after considering the statements on oath of the complainant and the witnesses there is, in his judgment, no sufficient ground for proceeding and in such case he shall record his reasons for so doing.

[Emphases added]

However, the Trial Court failed to understand that a complaint could not be declared as a sacrosanct document and its impact needs to be examined before granting permission as held by the apex court in case reported as 2010 SCMR 194, titled "Abdul Muktadar v. District and Sessions Judge, Jhang". The same point is further elaborated by the apex court in another latest judgment, reported as PLD 2025 SC 40, titled "Muhammad Rajar v. The State through Prosecutor General Sindh and others", wherein it has held as under:

2025 M L D 1534

[Federal Shariat Court]

Before Iqbal Hameedur Rahman, CJ

Muhammad Ramzan---Petitioner

Versus

The State and another---Respondents

Criminal Revision No. 01-L of 2025, decided on 15th May, 2025.

Offence of Qazf (Enforcement of Hadood) Ordinance (VIII of 1979)---

----Ss. 6, 7 & 14---Charge, framing of---Scope---Application was filed by the petitioner for amending the charge of "lian" but the Trial Court had refused to amend the charge on the ground that the petitioner had earlier raised the same subject matter before the Trial Court as well as before the High Court, which had been dismissed by the Trial Court and High Court---Validity---Perusal of record transpired that petitioner, in response to suit for maintenance instituted by respondent in the Family Court, filed written statement wherein he categorically disowned baby "M" who was alleged to be an illegitimate child of respondent---Petitioner also claimed that the marriage between the petitioner and respondent had never consummated and denied her maintenance---In order to disprove his relation with said baby "M", the petitioner also filed application for conducting D.N.A. test in the Family Court, which was dismissed---Said order also reflected that the petitioner had also delivered the copy of divorce deed to the respondent---Thereafter, in his statement before the Family Court, the petitioner again in categorical terms stated the he had already divorced the respondent---Therefore, the contention of the petitioner regarding existence of marriage between the petitioner and respondent did not find any support from the record---In the circumstances, S.14 of the Qazf Ordinance concerning Lian would not be applicable to the case, as the marital relationship had already been dissolved long before the filing of the application, which appeared to have been made solely to inflict mental agony and distress upon the respondent---Since S.14 of Qazf Ordinance was procedural in nature, it could not form the basis for framing a charge against an accused person---Courts framed charges under those provisions of law that prescribed punishments, not under the Sections that merely laid down procedural guidelines---Complaint was lodged by respondent under Ss. 3 and 7 of the Qazf Ordinance, the Trial Court had rightly framed the charge under S.7 of the Qazf Ordinance---Therefore, the contention raised by the petitioner regarding the applicability of S.14 of the Qazf Ordinance was misconceived and devoid of merit---Criminal Revision Petition having no merits was dismissed in limine.

Muhammad Imran Ashfaq Chaudhary for Petitioner.

Date of hearing: 12th May, 2025.

Order

Iqbal Hameedur Rahman, CJ.---The Petitioner through instant Criminal Revision has called in question the order dated 30.01.2025, whereby the learned Additional Sessions Judge Okara, dismissed application of the petitioner for framing amended charge against the respondent under section 14 of the Offence of Qazf (Enforcement of Hudood) Ordinance, 1979 (hereinafter called the Qazf Ordinance).

1. The facts divulged from the case are that the Respondent No.2 Rukhsana Bibi was married with the petitioner on 09.09.2012. Out of this wedlock, one baby namely Mawara was born on 30.07.2013. The Respondent No.2, after having been beaten by the petitioner, was driven out of home on 15.01.2013. Later on, she filed suit for maintenance against the petitioner on 05.05.2014. In response to her suit, the petitioner filed divorced deed dated 23.09.2013 and also in para No.4 of his written statement disowned baby Mawara, who is alleged to be result of adultery. Thereafter, the petitioner filed an application for conducting DNA test of baby Mawara to ascertain her paternity before learned Family Court, Okara who dismissed the said application vide order dated 14.02.2015. The said order was assailed through Writ Petition No.18320 of 2015 before learned Lahore High Court, Lahore which finding no infirmity, legal or factual dismissed the said Writ Petition vide order 21.09.2015. In the above circumstances, Respondent No.2 was constrained to file complaint under Section 3 of the Qazf Ordinance against the petitioner Muhammad Ramzan in the Court of Sessions Judge, Okara, wherein charge was framed under Section 7 of the Offence of Qazf Ordinance read with Section 496-C, P.P.C. on 17.06.2016 and thereafter, prosecution evidence was completed on 23.04.2018 and the matter was adjourned for statement of accused under Section 342 of the Code of Criminal Procedure, 1898 (hereinafter called the Code) for 10.05.2018. However, on 10.05.2018, the accused filed an application under Section 265-K of the Code but the same application was dismissed on 19.05.2018 by the learned Additional Sessions Judge, Okara. The petitioner assailed order dated 19.05.2018 before Hon'ble Lahore High Court, Lahore but the same was also dismissed vide order dated 06.08.2018 passed in Criminal Revision No.217910 of 2018. Thereafter, petitioner filed application for amending charge, which was dismissed by learned trial Court, the learned trial Court while passing the impugned order dated 30.01.2025 had mentioned that the petitioner had earlier also raised the same subject matter before the learned trial Court as well as before the Learned Lahore High Court, Lahore which had also been dismissed by the learned trial court and thereafter by the learned Lahore High Court, Lahore in Criminal Revision Petition No. 217910 of 2018 observing as under:-

"It has been observed that the petitioner/accused has moved an application under section 265-K of the Code of Criminal Procedure, 1898, on the ground that as he was husband of Respondent No.2, the complainant hence penal provisions of Qazf or fornication punishable under Section 496-C do not apply to his case and proceedings of 'Lian' are to be conducted. The perusal of examination in chief of Mst. Rukhsana Bibi respondent recorded as PW.1 transpires that on 14.02.2015 Muhammad Ramzan, the petitioner joined the proceedings of a family suit before the learned Judge Family court, Okara, and produced copy of divorce deed dated 23.09.2013 and got recorded his statement to the effect that he had already divorced her on 23.09.2013 which transpires that at the time of accusation that certainly was levelled after 05.05.2014 when the civil suit was instituted by Respondent No.2, the petitioner had already divorced Respondent No.2. Being so, as per petitioner's own stance taken by him before the learned Family Court he was no more the husband of Mst. Rukhsana Bibi (PW.1), Respondent No.2 after 23.09.2013. Even otherwise, the prosecution evidence stands recorded completely and the case is fixed for recording statement of accused under section 342 of the Code of Criminal Procedure, 1898. So far as the subsequent findings of the learned Judge Family Court regarding dissolution of marriage is concerned, the learned trial court can take notice of the same if the petitioner brings any evidence on record in this regard. For mentioned above, this Court is of the opinion that the order under challenge does not suffer from any illegality or impropriety requiring interference by this Court. Hence. this criminal revision being bereft of any merit is dismissed in limine."

Learned trial Court in the light of order of Lahore High Court, Lahore passed in Criminal Revision Petition, dismissed the application of the petitioner through the impugned order, as under:

"From the perusal of order dated 06.06.2018 passed by the Hon'ble Lahore High Court, Lahore, it reveals that the present version of applicant has already been touched upon so, there is no reason to reopen the same question from its beginning. Moreover, the evidence of prosecution has been completed and this court has ample discretion to alter or amend the charge at any stage even at the time of final judgment, so, this aspect is to be seen at the time of final arguments.

For the foregoing reasons, this application is devoid of force is hereby dismissed."

The petitioner feels aggrieved by the impugned order. Hence, this Criminal Revision.

1. Learned counsel for the petitioner contended that the learned trial Court has failed to consider that the marriage between the parties is still intact and the petitioner was husband of the Respondent No.2 till the charge was framed on 17.06.2016, hence, no divorce has taken place.

Continuing the argument, it was submitted that no document of divorce regarding 'divorce certificate' or 'divorce deed' is available on record to show that divorce had taken place between the parties and the alleged divorce deed is a copy produced by Respondent No.2 is not owned by herself, therefore, in view of decision of the Family Court there is no worth of divorce deed.

Summing up the argument, it was submitted that the impugned order is illegal, mechanical, unwarranted and nullity in the eyes of law which suffers from irregularity and is liable to be set-aside.

1. Arguments heard. Record perused.

2. Perusal of record transpires that petitioner, in response to suit for maintenance instituted by Respondent No.2 in the Family Court, Okara, filed written statement wherein he categorically disowned baby Mawara who was alleged to be an illegitimate child of Respondent No.2. The petitioner in para No.4 of his written statement stated as under:

The petitioner also claimed that the marriage between the petitioner and Respondent No.2 had never consummated and denied her maintenance. In order to disprove his relation with said baby Mawara, the petitioner also filed application for conducting D.N.?. test and in the Family Court, Okara which was dismissed on 14.02.2015. The said order also reflects that the petitioner had also delivered the said copy of divorce deed dated 23.09.2013 to the Respondent No.2. Thereafter, in his statement before the Family Court the petitioner again in categorical terms stated as under:-

Therefore, the contention of the learned counsel regarding existence of marriage between the petitioner and Respondent No.2 does not find any support from the record. Thus, it is evident from the record that the petitioner/husband executed a written divorce deed dated 23.09.2013, clearly pronouncing Talaq to the respondent, Mst. Rukhsana Bibi leaving no ambiguity regarding his intent to dissolve the marriage. This pronouncement was later reaffirmed before the Family Court on 14.02.2015, where the petitioner recorded his statement on oath, explicitly declaring that Mst. Rukhsana Bibi was no longer his wife, consistent with the contents of the divorce deed. His sworn affirmation before the Family Court solidified the effective date of dissolution of matrimonial relationship. The divorce deed dated 23.09.2013, endorsed by the petitioner, remains valid and effective from that date.

1. It is a well-established principle in Islamic law and Pakistani jurisprudence that when a divorce is pronounced in clear, unambiguous terms and documented in writing, it becomes effective from the date of its execution. It has further been emphasized that a written divorce deed with a specific date, validated under oath, establishes that date as the effective date of divorce.

2. In the circumstances, Section 14 of the Qazf Ordinance concerning Lian will not be applicable to the present case, as the marital relationship had already been dissolved long before the filing of the application, which appears to have been made solely to inflict mental agony and distress upon the Respondent No.2. This Court, while deciding Criminal Revision No.11/I of 1998 (Mst. Asia Khatoon v. Muhammad Safdar Satti, etc.) on 11.02.1999 categorically held that:

"I have given anxious consideration to the respective contentions raised on behalf of the parties. The contention raised by the learned counsel for the petitioner has force. A bare perusal of Section 14 would show that the marriage has to subsist and the relation between the parties as husband and wife existing if the proceedings under the said Section 14 for lian have to be ordered. It would also be seen that subsection (2) of section 14 provides that if the procedure prescribed by subsection (I) is complied with the court has to pass an order dissolving the marriage between the husband and wife and therefore it strengthens the position that the relationship between the parties as husband and wife should be subsisting if the proceedings are to be taken thereunder. The marriage having been dissolved already long ago there could be no occasion for taking proceedings under section 14 of the offence of Qazaf (Enforcement of Hudood) Ordinance, 1979. The order passed by the learned trial court in the attendant circumstances to say the least was wholly misconceived and highly uncalled for."

This view was upheld by the Shariat Appellate Bench of the Supreme Court in case of "Muhammad Safdar Satti and another v. Mst. Aasia Khatoon and 2 others" reported in 2005 SCMR 507, where it was observed:

"Learned Federal Shariat Court in the impugned judgment has rightly observed that marriage between appellant Muhammad Safdar Satti and respondent No.1 Mst. Aasia Khatoon has already been dissolved as such taking proceedings under Section 14 of the Ordinance would not be appropriate."

2025 M L D 173

[Gilgit-Baltistan Chief Court]

Before Ali Baig, CJ

Hazrat Khan---Petitioner

Versus

The state---Respondent

Cr. Misc. No. 166 of 2024, decided on 22nd August, 2024.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324 & 34---Explosive Substances Act (VI of 1908), Ss. 3 & 5---Attempt to commit qatl-i-amd, common intention, making or possessing explosives under suspicious circumstances---Bail, grant of---Further inquiry---Accused-petitioner was charged that he along with his co-accused had attempted to commit murder of complainant by opening fire from outside of house of the complainant and one bullet hit the complainant---From perusal of contents of FIR it transpired that there was five hours delay in lodging FIR which had not been explained by the complainant---Complainant had stated in the FIR that he had old enmity with some other persons---Present petitioner was their relative, therefore, the petitioner and his co-accused might have opened fire on complainant---Complainant had not seen the petitioner/accused at the place of occurrence rather he had expressed suspicion that the accused/petitioner and his co-accused had opened fire on him---Prima-facie case of the petitioner was one of the further inquiry---Moreover, as per Computerized National Identity Card, date of birth of the petitioner was 1952 as such he was of advanced age of 73 years as such the petitioner had made out a case for grant of bail---Prosecution had alleged that the present petitioner was involved in other criminal cases therefore, he was a habitual offender, however mere involvement of an accused in other criminal cases without any conviction in any case could not be a ground to withhold the concession of bail---Bail petition was allowed, in circumstances.

2012 SCMR 573; 2020 SCMR 871; 2012 PCr.LJ 918 and 2021 PCr.LJ 759 ref.

2020 SCMR 871 and 2022 SCMR 1467 rel.

Imtiaz Hussain, Zafeer Ahmed and Mudasir Hassan for the Petitioner/accused.

Dy. A.G. Malik Sherbaz for the State.

Nadeem Ahmed and Mushtaq Ahmed for the Complainant.

Date of hearing: 9th August, 2024.

Order

Ali baig, C.J.----The petitioner/ accused namely Hazrat Khan has filed the instant petition under section 497, Cr.P.C for grant of post arrest bail in criminal case bearing FIR No. 10/2024 for offences under sections 324, 34, P.P.C., 3/5 Explosive Substance Act No. 6 of 1908 and criminal case bearing FIR No. 13/2024 for offence under section 13 A.O 20 of 1965 registered at Police Station Singul District Ghizer.

1. Brief facts of the case as disclosed in the FIR are that the complainant namely Faisal Khan son of Adil Khan had submitted a written complaint before the SHO P.S Singul District Ghizer stating therein that he is of the opinion that the present petitioner/ accused along with his co-accused have attempted to commit murder of complainant Faisal Khan son of Adil Shah by opening fires from outside of house of the complainant and one bullet of fire hit the complainant.

2. After receipt of the complaint the SHO concerned has registered the FIR bearing No. 10/2024 and started investigation of the case. The concerned SHO arrested the present petitioner/ accused and during investigation the concerned SHO recovered crime weapon from the present petitioner/ accused and also registered another criminal case bearing FIR No. 13/2024. After completion of formal investigation got committed the present petitioner/ accused to judicial lock-up at Gahkuch Ghizer.

3. The present petitioner/accused had filed an application before the learned District and Sessions Judge, Ghizer for grant of post arrest bail. The learned District and Sessions Judge, Ghizer after hearing arguments on behalf of both the parties, has dismissed the bail petition filed by the present petitioner/ accused, vide order dated 29-06-2024 passed in B.A No. 34/2024. Hence, the instant bail petition before this Court.

4. The learned counsel appearing on behalf of the petitioner/accused contended that the petitioner/ accused is innocent and he has falsely been implicated in the instant case with mala fide intention by the police in collusion with .the complainant. The learned counsel for the petitioner/accused further argued that the instant FIR against the petitioner is fake, false, self-made and fabricated. The learned counsel for the petitioner/ accused further submitted that there is 5 hours unexplained delay in lodging of FIR. The learned counsel for the petitioner/ accused further submitted that no recovery of crime weapon has been effected from the present petitioner/ accused. The learned counsel for the petitioner/ accused further submitted that no specific role has been attributed to the petitioner/accused. The learned counsel for the petitioner/ accused further submitted that co-accused namely Shakil-ud-Din and Abdul Salam were arrested by the police in the instant case and later on during the investigation the police have discharged them under section 169, Cr.P.C. The learned counsel for the petitioner/ accused further submitted that the accused/ petitioner and his co-accused had opened fires as per FIR but it has not been mentioned that whose fire hit the victim. The learned counsel for the petitioner/ accused further submitted that the case of the present petitioner/ accused is required further inquiry. The learned counsel for the petitioner/ accused further submitted that the petitioner/ accused is 73 years old and he has not committed any offence. The learned counsel for the petitioner/ accused further submitted that the prosecution has failed to connect the present petitioner/ accused with the alleged offence and there is no any independent ocular evidence available on the record against the petitioner/accused and serious doubts exist in the present case, hence the case of the petitioner falls within the ambit of further inquiry. In support of his arguments, the learned counsel for the petitioner has relied upon judgments of superior Courts reported as 2012 SCMR 573 and 2020 SCMR 871.

5. On the other hand, the learned DAG and learned counsel for the complainant controverted the arguments advanced by the learned counsel for the petitioner/accused by contending that the present accused/petitioner is directly nominated in the FIR with specific role. The learned DAG and learned counsel for the complainant further contended that the police have recovered crime weapon on the pointation of petitioner. The learned DAG and learned counsel for the complainant further submitted that offence under section 324, P.P.C. and 3/5 Explosive Substance Act, are not bailable and falls within the ambit of prohibitory clause of section 497, Cr.P.C. The learned DAG and learned counsel for the complainant further submitted that the present petitioner/ accused has a criminal history and a habitual offender and is not entitled for any leniency. The learned DAG further submitted that site plan of the place of occurrence has been prepared by the police on the pointation of present accused/ petitioner. The learned DAG and learned counsel for the complainant relied on judgments of superior Courts reported as 2012 PCr.LJ 918, 2021 PCr.LJ 759.

2025 M L D 267

[Gilgit-Baltistan Chief Court]

Before Ali Baig, C.J

Akhlaq Ahmed---Petitioner

Versus

The State---Respondent

Criminal Misc. No. 284 of 2024, decided on 31st October, 2024.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302(b) & 34---Qatl-i-amd, common intention, intentional omission to give information of offence by person bound to inform---Bail, grant of---Further inquiry---Accused-petitioner was charged that he along with his co-accused committed murder of the deceased by firing and buried the dead body of deceased in their field---Although, petitioner/accused was directly nominated in the FIR but no specific role had been attributed to the accused/petitioner in the occurrence---No incriminating article/material had been recovered from the possession of the petitioner/accused so far---Father of the accused/petitioner who was also co-accused in the case had not stated a single word against him in his statement recorded under S.161, Cr.P.C rather father of accused/petitioner had stated that his other son/accused had committed murder of deceased by firing with 30-bore pistol---Weapon of offence i.e. 30 bore pistol and dead body of the deceased were recovered on the pointation of the co-accused---From tentative assessment of material collected by the police during investigation of the case it appeared that the police had failed to collect any cogent/reliable evidence against the present petitioner/accused---Perhaps the petitioner had been involved in the instant case for the offence under S.202, P.P.C and punishment prescribed for the offence under S.202, P.P.C is six months imprisonment, as such, the said offence/ section did not fall within the ambit of prohibitory clause of S.497, Cr.P.C, thus, the petitioner had been able to make out a case for grant of bail---Bail petition was allowed, in circumstances.

2024 PCr.LJ 1305 and 2021 YLR 347 ref.

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

----S. 497---Bail order---Observations of Court---Scope---Observations made in the bail order are tentative in nature, which should not influence the Trial Court to decide the matter on merits in accordance with law/evidence to be produced by the prosecution.

Shahbaz Ali for Petitioner.

Malik Sherbaz, Dy. Advocate General for the State.

Date of hearing: 29th October, 2024.

Order

Ali Baig, C.J.--- The instant bail petition has been filed by the petitioner/accused namely Akhlaq Ahmed under section 497, Cr.P.C for grant of post arrest bail in case FIR No. 10/2024 registered under sections 302/34, 202, P.P.C. at Police Station Pari Banglah District Gilgit.

1. Prior to filing the instant bail petition, the petitioner/ accused had filed bail petition before the learned trial Court which was dismissed, vide bail order dated 18.09.2024 passed in B.A No. 246/2024, hence this bail petition before this Court.

2. Briefly facts as narrated in the FIR necessary for disposal of the instant bail petition are that on 20.06.2024 at about 10.00 pm, the petitioner/accused along with his other co-accused had committed murder of one Rizwan Ullah son of Safdar Shah by opening fire with fire arm at their house situated at Pari Banglah. After committing murder of the above named deceased, the present petitioner and his co-accused had buried the dead body of the deceased in their field which was recovered by the police after three days of the occurrence on the pointation of the co-accused of the present petitioner.

3. The learned counsel for the petitioner/accused argued that the allegation against the petitioner/accused is false, concocted and result of afterthought as the complainant has reported the matter to the local police after three days of the occurrence. The learned counsel for the petitioner/accused further argued that although the petitioner/ accused has directly been nominated in the FIR by the complainant, but no specific role has been attributed to him. The learned counsel for the petitioner/accused further argued that the occurrence was taken place at night and there is no eye-witnesses of the occurrence. The learned counsel for the petitioner/ accused further argued that all the PWs have not uttered a single word against the present petitioner/accused in their statements recorded by the police under section 161, Cr.P.C. The learned counsel for the petitioner/accused further argued that no recovery has been effected from the petitioner/accused by the police during investigation of the case. The learned counsel for the petitioner/accused further argued that prima facie there is no evidence against the petitioner/accused in the instant case and the only allegation against the petitioner is concealment of crime, which is baseless and concocted. The learned counsel for the petitioner/accused further argued that the petitioner/ accused is behind the bar since his arrest and his guilt will be determined after recording evidence by the trial Court, hence the detention of the petitioner/accused for a long time in jail would serve no useful purpose as such the petitioner/accused may be released on bail. In support of his arguments, the learned counsel for the petitioner/accused has relied upon reported judgments of superior Courts reported as 2024 PCr.LJ 1305 and 2021 YLR 347.

4. Conversely, the learned Dy. Advocate General controverted the arguments advanced by the learned counsel for the petitioner/accused by contending that the accused/ petitioner is involved in murder of an innocent person and his involvement has been established by the PWs during investigation of the case. The learned Dy. Advocate General further contended that the occurrence is a pre-planned and the present petitioner/accused is equally involved in the instant case. The learned Dy. Advocate General further contended that both the parties as well as PWs belong to same locality and both the parties and PWs were known to each other, therefore, there is no possibility of false implication or misidentification. The learned Dy. Advocate General further contended that the there is no mala fide on the part of prosecution as the PWs in their statements recorded under section 161, Cr.P.C have established the presence of the petitioner/accused at the place of occurrence with specific role. The learned Dy. Advocate General further contended that the dead body of the deceased has been recovered after three days of the occurrence from the field of the accused/petitioner, hence the petitioner and his co-accused has committed murder of the deceased.

5. I have heard the arguments advanced by the learned counsel for the parties and with their able assistance perused the available record of the case.

2025 M L D 328

[Gilgit-Baltistan Chief Court]

Before Ali Baig, C.J

The State and another---Petitioners

Versus

Sher Jahan and 3 others---Respondents

Criminal Misc. No. 270 of 2024, decided on 2nd November, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 497(2)---Penal Code (XLV of 1860), S. 395---Dacoity---Petition for cancellation of bail, dismissal of---Accused-respondents were charged for forcibly snatching the vehicle of the complainant---First Information Report had been lodged after a delay of about four months of the occurrence and the complainant had failed to explain the delay in lodging of FIR---Moreover, there was a transaction of car between the petitioner/complainant and the respondents/accused as evident from sale deed dated 24.04.2024 whereby the complainant had sold out Toyota Corolla which had been allegedly forcibly snatched by the respondent/accused from the complainant---Hence, controversy between the parties seemed to be of civil nature and required further inquiry into the guilt of the respondents/accused under S.497(2), Cr.P.C.---Perusal of record revealed that the respondent No.2/accused had also lodged FIR against brother of complainant under S.489-F, P.P.C., which created serious doubt regarding involvement of the respondents/accused in the case---Moreover, when the Court of competent jurisdiction had granted bail to the accused, then strong grounds were required for its cancellation---For cancellation of bail, the Court had to see whether the accused after release on bail was creating hindrance for complainant party, tampering with the prosecution evidence or misusing the concession of bail---Perusal of record depicted that all the said ingredients required for cancellation of bail were lacking in the instant case---Petition filed under S.497(5) Cr.P.C being bereft of merit was dismissed, in circumstances.

Malik Sherbaz, DAG for the State.

Muntazir Abbas and Mazahir Ali for the Petitioner.

Respondents in person along with counsel Faizan Advocate present.

Date of hearing: 31st October, 2024.

Order

Ali Baig, C.J.---The petitioner/complainant namely Abid Ullah has filed the instant petition under section 497(5), Cr.P.C for cancellation of bail granted to the respondents/accused by the learned Sessions Judge, Gilgit, vide order dated 31.08.2024 passed in BBA No. 228/2024.

1. Succinctly the allegations against the respondent/accused as reflected in the FIR are that on 24.04.2024, the present respondents/accused have forcibly snatched the vehicle of the complainant bearing No. AK-4544, Chassis No. NZE-121-3187369, Model 2003 in Gilgit.

2. On written application of the complainant, the local police of PS Basin have chalked FIR No.77/2024 under section 395, P.P.C. The present respondents/accused had filed an application under section 498 Cr.P.C for grant of pre-arrest bail before the Court of learned Sessions Judge, Gilgit. The learned Sessions Judge, Gilgit vide order dated 31.08.2024 has confirmed ad-interim pre-arrest bail.

3. Feeling aggrieved and dissatisfied with the impugned order dated 31.08.2014 of the learned Sessions Judge, Gilgit, the complainant/ petitioner has filed the instant petition for cancellation of bail before this Court.

4. The learned counsel for the petitioner/complainant argued that the respondents /accused are directly nominated in the promptly lodged FIR with specific role. The learned counsel for the petitioner/ complainant further argued that the section 395 P.P.C. reflected in the FIR fully attracts to the case of respondents/accused, as such the bail granted to the respondents/accused is liable to be re-called. The learned, counsel for the petitioner/complainant further argued that the motive behind the occurrence has been disclosed in the FIR. The learned counsel for the petitioner/complainant further argued that the respondents/ accused have threatened the petitioner/complainant for dire consequences and they have forcibly snatched the vehicle of the complainant whereas the complainant has no nexus with the accused party. The learned counsel for the petitioner/ complainant further argued that the occurrence has been witnessed by impartial PWs and the PWs in their statements recorded under section 161, Cr.P.C have fully implicated the respondents/accused. The learned counsel for the petitioner/complaint further argued that the vehicle of the complainant is still in illegal possession of the respondents/accused and the local police have not recovered the said vehicle due to pre-arrest bail of the accused/ respondents. The learned counsel for the petitioner/complainant further argued that the learned Sessions Judge, Gilgit has confirmed the bail of the respondents/accused in a hurry and hasty manner without considering the record of the case, hence the pre-arrest bail facility extended to the respondents/accussed is liable to be re-called in the interest of justice. The learned counsel for the petitioner/complainant has relied upon judgment of this Court dated 24.05.2019 passed in Cr. Misc. No. 102/2019 titled "Islam Ullah and others v. The State".

5. Conversely, the learned counsel for the respondents/accused strongly opposed this bail cancellation petition by contending that the learned Sessions Judge, Gilgit has rightly confirmed ad-interim pre-arrest bail of the respondents on merit. The learned counsel for the respondents/accused further contended that the respondents/accused have never misused the bail facility. The learned counsel for the respondents/accused further contended that the petitioner has failed to agitate any ground required for cancellation of per-arrest bail. The grounds taken by the petitioner/ complainant do not meet the requirements of bail cancellation, hence, the instant petition is not maintainable and liable to be dismissed.

2025 M L D 351

[Gilgit-Baltistan Chief Court]

Before Raja Shakeel Ahmad, J

Imtiaz and 9 others---Petitioners

Versus

The State---Respondent

Cr. Misc. No. 147 of 2024, decided on 26th September, 2024.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), S. 188---Disobedience to the order duly promulgated by public servant---Quashing of proceedings---Scope---Magistrate had imposed ban on encroachments/constructions on State land under S.144, Cr.P.C---Station House Officer concerned caught the petitioners/convicts red handed on the spot while making construction on State land and submitted a complaint before the Executive Magistrate---After summary proceedings, the Executive Magistrate convicted the petitioners and sentenced them to 20 days for violation of order---Petitioners challenged the said order before the Revisional Court, which reduced the sentence from 20 days to three days and dismissed the revision petition---Validity---In the instant petition the petitioners had not annexed the record of proceedings before the Trial Court as well as proceedings of trial before the Court of Session Judge just to conceal the facts---After perusal of record the Court found no illegality or infirmity in the procedure adopted by the Executive Magistrate, or in the judgment/order passed by the Sessions Judge---Although under S.561-A, Cr.P.C, the High Court may make such orders as may be necessary to give effect to "any order under the Code of Criminal Procedure or, to prevent abuse of the process of any Court or otherwise to secure the ends of justice but subject to certain exceptions i.e. when prima facie no case is made out, or when there is want of jurisdiction or when there is sheer abuse of process of law---In the instant case the petitioners failed to show any one of the said exceptions---Thus, there was no force in the instant petition and the same was dismissed.

Burhan Wali and Usman Ghani for Petitioner.

Malik Sherbaz Khan, Additional Advocate General for the State.

Ghaib Ali Shah, Executive Magistrate 1st Class Juglote in person along with the record of the case.

Date of hearing: 26th September, 2024.

Order

Raja Shakeel Ahmad, J.---The applicants have filed the instant Cr. Misc Application under section 561-A, Cr.P.C for setting aside/quashment of proceeding and impugned judgment dated 31/05/2024 passed in Criminal Revision No. 08/2024 by the learned Sessions Judge Gilgit, whereby the learned Sessions Judge Gilgit maintained the findings of trial Court dated 09/02/2024, with modification in sentence by reducing it from 20 days to 3 days. The petitioners sought acquittal with following prayer:-

"It is therefore humbly prayed that by accepting this criminal petition and acquit the petitioners from the charge levelled against them in the larger interest of justice, law and equity."

1. The short track of the case is that Sub-Divisional Magistrate Juglote had imposed ban on encroachments/constructions on State land (Khalisa-e-Sarkar land) under section 144, Cr.P.C. vide order dated 19/01/2024 bearing No. ACJ 1(70)/17029/2024. The SHO Police Station Pari Bangla caught the petitioners/convicts red handed on the spot while making constructions on State land and submitted complaint before the Executive Magistrate 1st Class Juglote. On requisition, the petitioners failed to produce any mutation or allotment orders in their favour, as such, after summary proceedings, the Executive Magistrate convicted the petitioners for sentence of 20 days for violation of order imposed under section 144, Cr.P.C. vide order dated 09/02/2024. The petitioners challenged the said order in the Court of learned Sessions Judge Gilgit, who reduced the sentence from twenty to three days and dismissed the revision petition vide order dated 31/05/2024, while maintaining the findings of the leaned trial Court, hence this petition for setting aside the order dated 31/05/2024 and acquittal of petitioners.

2. The learned counsel for petitioner contended that the petitioners/accused are innocent and are serving as govt. employees in BPS-1. The Executive Magistrate 1st Class Tehsil Juglote has convicted the petitioners without any cogent reason and justification. The petitioners have been convicted on the basis of surmises, conjectures and presumptions instead of evidence. Feeling aggrieved from the same, the petitioners approached to the Sessions Court Gilgit for setting aside the same. The learned Judge of Sessions Court Gilgit instead of setting aside the sentence awarded to the petitioners dismissed the petition by reducing the sentence from twenty to three days, which may resulted from the dismissal from the service of petitioners/convicts. The impugned judgment/order of learned Sessions Judge Gilgit is against the basic principles of justice, equity and law. Lastly, the learned counsel prayed for setting aside the order dated 30/05/2024 passed by the learned Sessions Judge Gilgit and sought acquittal of the petitioners/convicts.

3. On the other hand, the learned Additional Advocate General opposed the contention of learned counsel for the petitioner and contended that the petitioners/convicts have violated the section 144, Cr.P.C., as such the Executive Magistrate 1st Class Tehsil Juglote has rightly convicted the petitioners/convicts and the learned Sessions Judge Gilgit by taking lenient view reduced the sentence from twenty to three days and rightly dismissed the revision petition. The petitioners/convicts are not entitled for any concession of imposition of law on, violating the orders of the competent authority despite being Government servants. The judgments of both the lower court are correct and passed according to law and facts of the case, and there is also no issue of jurisdiction of Courts. The learned AAG submitted that the petition filed by the petitioners/convicts is baseless and merits dismissal, may be dismissed.

4. The instant petition the petitioners have not annexed the record of proceedings before the trial Court as well as proceedings of trial before the Court of Session Judge Gilgit case just to conceal the facts. The learned Executive Magistrate was directed to appear with record of the case who submitted the record of proceedings in summary trial before him. After perusal of record this Court found no any illegality or infirmity in the procedure adopted by the Executive Magistrate, or in the judgment/ order passed by the learned Sessions Judge Gilgit. Under section 260 of Cr.P.C any Magistrate of the First Class specially empowered by the Provincial Government, may, if he think fit, try in a summary way all or any of the following offences:

(a) Offences not punishable with death, transportation or imprisonment for a term exceeding six months;

(b) Offences relating to weights and measures under Sections 264, 265 and 266 of the Pakistan Penal Code;

(c) Hurt, under clause (i) of section 337-A of the same Code;

(d) Theft under Sections 379, 380 or 381 of the same Code, where the value of the property stolen does not exceed ten thousand rupees;

(e) Dishonest misappropriation of property under Section 403 of the same Code, where the value of the property misappropriated does not exceed so ten thousand rupees;

(f) Receiving or retaining stolen property under Section 411 of the same Code, where the value of such property does not exceed ten thousand rupees;

(g) Assisting in the concealment or disposal of stolen property, under Section 414 of the same Code, where the value of such property does not exceed ten thousand rupees;

(h) Mischief, under Section 247 of the same Code;

(i) house-trespass, under Section 448, and offences under Sections 451, 453, 454, 456 and 457 of the same Code;

(j) Insult with intent to provoke a breach of the peace, under Section 504 and criminal intimidation, under Section 506 of the same Code;

(j) offence of personating at an election under Section 171-F of the same Code;

(k) Abetment of any of the foregoing offences;

(l) An attempt to commit any of the foregoing offences, when such attempt is an offence;

2025 M L D 630

[Gilgit-Baltistan Chief Court]

Before Ali Baig, C.J

Taj Muhammad and 19 others---Petitioners

Versus

Provincial Government through Chief Secretary Gilgit-Baltistan Gilgit and 38 others---Respondents

Civil Misc. No. 644 of 2024, decided on 31st October, 2024.

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

----S. 24---Transfer application---Bias in judge, allegation of---Plea of the petitioners was that they had lost confidence in the judge (Diamer) as he had close relations with the contesting party---Validity---Petitioners had not been able to establish that the judge had any close relations with the respondents (contesting party) as the judge belonged to Gilgit and was a Pathan by caste, who had nothing to do with the opposing party (respondents)---Petitioners had failed to mention any reasonable ground for transfer of case from the present Trial Court (Diamer) to any other Court of competent jurisdiction---Petition for transfer, being merit-less, was dismissed, in circumstances.

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

----S. 24---Transfer application---Bias in judge, allegation of---Plea that judge (Diamer) in question had decided similar nature case (reference petition) against some of the petitioners---Validity---Case (reference petition) could not be transferred on the ground that since the Referee/District Judge (District Diamer) while deciding similar matter had already expressed an adverse opinion or passed decision against some of the petitioners, therefore, the other case of similar nature would meet the same fate---There was no logic behind the said apprehension for the simple reason that every case had its own facts and circumstances and the Trial Court was to decide the matter on merits on the basis of the evidence, as such, the apprehension of the petitioners under the circumstances was misconceived and not tenable in law---Petitioners had failed to mention any reasonable ground for transfer of case from the present Trial Court (Diamer) to any other Court of competent jurisdiction---Petition for transfer, being merit-less, was dismissed, in circumstances.

Muhammad Bashir for Petitioners.

Basharat Ali for Contesting Respondents (Set-I).

Hujjat Ullah for Respondents Nos. 5 and 6.

Respondents Nos. 7 to 39 have already been proceeded ex-parte vide order sheet dated 17.10.2024.

Respondents Nos. 1 to 4 absent.

Date of hearing: 31st October, 2024.

Judgment

Ali Baig, C.J.---Under section 24, C.P.C., the petitioners have moved the instant petition for transfer of Reference Petition No.101/2016 (10/2015) titled "Jumla Malikan-e-Botokhail and others v. Ibadat Shah" from the Court of learned Referee Judge District Diamer to any other Court of competent jurisdiction.

1. Learned counsel appearing on behalf of petitioner submitted that the petitioners have lost confidence in the learned trial Court as the learned trial Judge has already dismissed a similar nature case of the petitioners. The learned counsel for the petitioners further argued that the learned trial Judge has family terms with the contesting respondents, hence, the petitioners have lost confidence in the learned trial Judge. The learned counsel for the petitioners further argued that if the reference petition of the petitioners is not transferred, then the petitioners would suffer irreparable loss. In support of his arguments, the learned counsel for the petitioners has relied upon reported judgment of superior Court reported as 2012 MLD 501.

2. Conversely, the learned counsel for the contesting respondents i.e. (Malikan-e-Botokhail) controverted the arguments advanced by the learned counsel for the petitioners by contending that the learned trial Judge has no relation with the contesting respondents. The learned counsel for the contesting respondents further contended that almost forty reference petitions for and against the contesting respondents are pending adjudication before the learned trial Jugde and if this petition is allowed on the basis of relationship of the trial Judge with the contesting respondents and the case of the petitioners is transferred, then it will be a precedent for other litigants of reference petitions and they will also approach this Court for transfer of their cases/petitions. The learned counsel for the contesting respondents further contended that the learned trial Judge is fair and unbiased Judge, hence, the contentions of the learned counsel for the petitioners are baseless, as such the instant transfer petition is not meritless and the same is liable to be dismissed. In support of his arguments, the learned counsel for the contesting respondents has relied upon reported judgment of superior Court reported as 2009 YLR 950.

3. I have considered the arguments advanced by the learned counsel for the parties and perused the available record with their able assistance.

4. Perusal of the contents of the transfer petition filed under section 24, C.P.C. by the petitioners transpires that the transfer petition has been filed by the petitioners on the following two grounds:-

1. The learned referee Judge, Diamer has close relations with the contesting respondent No.1, therefore, petitioners have lost confidence in the Referee Judge, District Diamer.

2025 M L D 735

[Gilgit-Baltistan Chief Court]

Before Raja Shakeel Ahmad, J

Jangwaiz Khan---Petitioner

Versus

Ghulam Raza and 3 others---Respondents

Writ Petition No. 545 of 2023, decided on 28th June, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 550 & 523---Writ petition---Superdari of vehicle---Scope---Petitioner moved an application for Superdari of the vehicle impounded in a criminal case, which application was dismissed by the Judicial Magistrate whereas the Sessions Court upheld the said order---Validity---Admittedly respondent No. 01 had purchased the impugned vehicle from one "AK" who purchased the same from one "GK"---At present the petitioner was not the owner of the impounded vehicle---Certificate issued by Pak Suzuki Motors Company showed that impugned vehicle was sold to "AA" and both the documents i.e. letter pad of "U" Motors and sale certificate of Pak Suzuki Motors clearly showed that neither the petitioner was owner of impugnded vehicle nor he was last possessor of vehicle in question---Record showed that during the first round of litigation the claim of the petitioner up to the Chief Court was not accepted and the Superdari of alleged vehicle was granted to the respondent No. 1 being last possessor, which he purchased form one "AK", as such at present the petitioner had no locus standi to again claim the superdari of vehicle in question---Writ petition was dismissed, in circumstances.

Munir Alam for Petitioner.

Akhtar Hussain and Mehmood Alam for Respondent No. 1.

Mir Muhammad D.A.G. for the Respondents Nos. 2 and 4.

Date of hearing: 28th June, 2024.

Judgment

Raja Shakeel AhmAd, J.---Through the instant writ petition under Article 86(2) of the Gilgit-Baltistan Order, 2018 petitioner seeks cancellation of order dated 29/09/2023 passed by the learned Sessions Judge Gilgit in Criminal Revision No. 06/2023 and impugned orders/judgment dated 24/06/2023 and 16/07/2022 passed by the learned Judicial Magistrate Gilgit in Cr. Misc. Nos. 55/2023 and 72/2022 respectively.

1. Brief fact of the case stated in the instant writ petition is that the petitioner is resident of Kotha Pir Kot Haripur and running a business of bargaining of vehicles as registered Car showroom namely Usman Motors Dealer. The petitioner made a deal between one Amjad Ali and Ummar Shehzad whereas Ummar Shehzad purchased the impugned vehicle Suzuki vide registration No. APL-2020, bearing Engine No. 361524, Chassis No. 466173 from Amjad Ali through petitioner in consideration amount of rupees Rs. 13,40,000/ - (Thirteen Lac Forty Thousand Rupees). Thereafter, on 26-08-2021 the petitioner make another deal between the Ummar Shehzad and Akmal Khan and the Akmal Khan has purchased the impugned vehicle from Ummar Shehzad through petitioner in consideration amount of rupees Rs. 13.50.000/- whereas the Akmal Khan paid Rs. 3,50,000/ while rest of amount Rs 10,00,000/ - (Ten Lac) rupees is payable. The said Akmal Khan has also purchased other vehicles including the vehicle in question in the payment of the said vehicles. The petitioner tried to contact him in various occasions whereas the said Akmal Khan denied to pay the remaining amount. Therefore, feeling aggrieved the petitioner lodged FIR No. 206/2022 at Police Station Sarie Saleh District Haripur KPK against the said Akmal Khan who have been murdered later on. After the murder of the above named deceased, the petitioner tried upon detection the impugned vehicle wherein it came to the knowledge of petitioner that the vehicle is in possession of respondent No. 01 on the fake, false and self made agreement dated 15/ 09/2021. The respondent No. 02 has taken the above mentioned impugned vehicle/ Suzuki in his custody from the present respondent No. 01 under section 550, Cr.P.C against which the present respondent No. 01/ petitioner in Cr. Misc. No.72/ 2022, filed an application under section 523, Cr.P.C for grant of Superdari of impugned said which has been accepted/ allowed by this Hon'ble Court vide impugned order dated 16/ 07/ 2022. The petitioner filed a Criminal Revision Petition No. 22/2022 before the learned Sessions Judge Gilgit which was dismissed by the learned Sessions Judge Gilgit vide impugned order dated 20/10/2022. Feeling aggrieved the petitioner filed a Writ Petition No. 286/2023 before the Hon'ble Chief Court which was dismissed but the petitioner once again knocked the doors of the learned Judicial Magistrate Gilgit through Cr. Misc. No. 55/2023 to set aside/ recall the impugned order dated 16/07/2022 of the learned Judicial Magistrate Gilgit with seeking further direction to the respondent. No. 02/ SHO Jutial to impound the vehicle in question which is required in FIR No. 206/2022 PS Siraye Saleh District Haripur KPK whereas the learned Judicial Magistrate Gilgit has dismissed the Cr Misc. No.55/2023 vide impugned order dated 206-2023. Feeling aggrieved the petitioner filed Criminal Revision Petition No. 06/2023 before the learned Sessions court Gilgit which learned Judge Gilgit vide impugned order/judgment dated 29/09/2023 dismissed the same. He filed another writ petition in connection of another vehicle involved in the above mentioned FIR No. 206/2022 titled "Janguratz Khan v. Tashjeen Haider etc" before this Hon'ble Court which was allowed by this Hon`ble Court with the direction to the SHO Jutial to impound the said vehicle as case property in the said FIR registered at PS Siraye Saleh District Haripur by adopting the legal way.

2. Learned counsel for the petitioner submits that the petitioner is resident of Kotha Pir Kot Haripur and is associated with the business/ bargaining of vehicles as registered Car showroom namely Usman Motors Dealer with all original documents, keys and smart card while the respondent No. 01 is resident of Sakwar Tehsil and District Gilgit, the petitioner made a deal with Amjad Ali and Ummar Shehzad whereas Ummar Shehzad purchased the impugned vehicle/ Suzuki Registration No. AM 2020, bearing Engine No. 361524, Chassis No. 466173 from Amjad Ali through petitioner in consideration amount of Rs. 13,40,000/ (Thirteen Lac Forty Thousand Rupees). Thereafter, 26/08/2021 the petitioner make another deal between the Ummar Shehzad and Akmal Khan and the Akmal Khan has purchased the impugned vehicle from Ummar Shehzad through petitioner in consideration amount of Rs.13,50,000/- whereas the Akmal Khan paid Rs. 3,50,000/ only while rest of amount Rs. 10,00,000/ - (Ten Lac) rupees is payable. He submits that the said Akmal Khan has also purchased other vehicles including the vehicle in question in the payment of the said vehicles and the petitioner tried to contact him in various occasions whereas the said Akmal Khan denied to pay the rest of amount to the petitioner, therefore, feeling aggrieved the petitioner lodged FIR No. 206/2022 at Police Station Sarai Saleh District Haripur KPK against the said Akmal Khan who have been murdered later on. He further submits that the petitioner tried his best to discover the vehicle and during the process it came hi his knowledge that the impugned vehicle in is in possession of respondent No. 01 on the fake, false and self-made agreement dated 15/09/2021. The leaned counsel further submitted that that the respondent No. 02 has taken the above mentioned impugned vehicle/ Suzuki in his custody from the present respondent No. 01 under section 550, Cr.P.C against which the present respondent No. 01/ petitioner in Cr. Misc. No.72/ 2022, filed an application under section 523, Cr.P.C for grant of Superdari of impugned vehicle which has been accepted/ allowed by this Court vide order dated 16/07/2022 without applying judicious mind by violation the golden principal of Audi Alterm Partum as such impugned order of this Court is stark violation of golden principle of Audi Alterm Palterm and flagrant violation of fundamental rights of the petitioner. He further argued that the vehicle in question is required for investigation of above mentioned FIR, therefore, the petitioner filed a Criminal Revision Petition No. 22/2022 before the learned Sessions Judge Gilgit which was dismissed by the learned Sessions Judge Gilgit vide impugned order dated 20/ 10/2022 in hurry and hasty manner and maintained the impugned order. He submits that petitioner filed a Writ Petition No. 286/2023 before the Hon ble Chief Court GB wherein the another bench of Chief Court has disposed the same vide judgment/ order dated 31/05/2023 with the direction to the petitioner to approach the relevant/ competent forum, therefore, the petitioner once again knocked the doors of the learned Judicial Magistrate Gilgit through Cr. Misc. No. 55/2023 to set aside/ recall the impugned order dated 16/07/2022 of the learned Judicial Magistrate Gilgit with seeking further direction to the respondent No. 02/ SHO Jutial to impound the vehicle in question which is required in FIR No. 206/2022 PS Sarai Saleh District Haripur KPK whereas the learned Judicial Magistrate Gilgit without applying his judicious mind, has dismissed the Cr Misc. No. 55/2023 vide impugned order dated 206-2023. He argued that the concern police i.e., Haripur police approached the respondent No. 02 and proforma respondent No. 03 to impound the vehicle in question and handover the same to the Haripur police which is required in FIR No. 206/2022 whereby the respondent No. 02/ SHO Jutial flatly refused to extend their favor in this regard on the basis of above mentioned impugned orders; therefore, the said impugned orders are liable to be recalled with the direction to the respondent No. 02 to impound the vehicle in question. He also argued that the impugned judgments/ orders of both the learned lower Courts are based on misconception of law and mis-appreciation of evidence on record, hence not maintainable and liable to be set aside. The impugned judgments/ orders passed by the learned lower Courts are beyond the jurisdiction, the learned lower Courts have failed to exercise the jurisdiction so vested and exercised a jurisdiction not so vested to it by committing material irregularities and illegalities while passing the impugned orders/judgments. The learned counsel contended that if this Hon'ble Court has set aside the impugned judgments/ orders of the learned lower Courts, the petitioner shall suffer irreparable loss which cannot be cured by any other means. Lastly he prayed for acceptance of the instant petition by setting aside the impugned order/judgment dated 29/09/2023 and 20/04/2023 passed by the learned Sessions Judge Gilgit in Cr. Revision No.06/ 2023 and Cr. Revision No.22/ 2022 as well as impugned order/judgment dated 24/ 06/ 2023 and 16/07/2022 passed by the learned Judicial Magistrates Gilgit in Cr. Misc Nos. 55/2023 and 72/2022.

2025 M L D 1634

[Chief Court Gilgit-Baltistan]

Before Ali Baig, CJ

Saddam Hussain---Petitioner

Versus

The state---Respondent

Cr. Misc. No. 118 of 2025, decided on 29th May, 2025.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, refusal of---Allegation against the accused-petitioner was that he issued a cheque amounting to Rs. 18,50,000/- to the complainant and the same was dishonoured on presentation before concerned bank due to insufficient balance---From perusal of record it appeared that the present petitioner/accused was directly charged in the FIR with specific role of issuing cheque to the complainant which on presentation before the concerned Bank was declared bounced because of insufficient amount in his account---No possibility of the fake implication of the accused/petitioner or substitution existed because he was known to the complainant and transaction of vehicle between the parties was admitted---Although offence under S.489-F, P.P.C, did not fall within the ambit of prohibitory clause of S.497, Cr.P.C., but it was not universal rule of law that in each and every case which was not punishable with death or imprisonment for life or ten years imprisonment bail must be granted to the accused without considering the gravity of the offence---Besides involvement of the petitioner/accused in the present case, he had issued five more cheques to different persons which on presentation before the concerned Banks were declared bounced due to insufficient balance/amount in the account of the petitioner/accused---Accordingly five more cases under S.489-F, P.P.C, had been registered against the present petitioner/accused---Accused/petitioner though was not convicted in any of the said previous cases, but involvement of the petitioner/accused in five more cases of similar nature was sufficient to declare him habitual offender and apprehension existed that if he was released on bail he could repeat the offence and there also existed apprehension that he would abscond after release on bail---Petitioner/accused had deceived and deprived six persons/complainant from their huge amount, as such the petitioner/accused was not entitled for concession of bail---Petitioner/accused had not been able to make out the case for grant of post arrest bail in his favour---Hence, bail petition being devoid of merits was dismissed, in circumstances.

2025 YLR 147 ref.

Arif Nazir, Umer Hussain and Fayaz Ahmed for Petitioner.

D.A.G. Malik Sherbaz for the State.

Minhas Hussain for the Complainant.

Date of hearing: 22nd May, 2025.

Order

Ali Baig, C.J.---The instant petition under section 497, Cr.P.C has been filed by the petitioner/accused above named against the impugned order dated 15-03-2025 passed by the learned District and Sessions Judge District Gilgit in Bail Application No. 141/2025 whereby the learned District and Sessions Judge Gilgit has dismissed the post-arrest bail application of the present petitioner/accused.

1. Being aggrieved and dissatisfied with the above order dated 15-03-2025 the present petitioner/ accused has called in question the same before this court through the instant petition. The petitioner/ accused through the instant petition seeks his enlargement on bail.

2. Brief facts of the case are that the petitioner/accused namely Sadadm Hussain issued a Cheque bearing No. 38915197 of Khyber Bank Ltd. Jutial Branch amounting to Rs. 1850000 (Eighteen lacs and fifty thousand only) to the complainant and the same was dishonored presentation before concerned Bank due to insufficient balance. Resultantly an FIR bearing No. 179/2024 was lodged against the present petitioner /accused on written complaint of the complainant.

3. After registration of the FIR the concerned SHO started investigation and arrested the petitioner/accused and after completion of formal investigation the SHO got committed the present petitioner/ accused to judicial lockup. The present petitioner/accused approached the court of learned District and Sessions Judge District Gilgit for grant of post -arrest bail, which was declined by the learned District and Sessions Judge District Gilgit vide order dated 15-03-2025, hence, this petition before this Court.

4. The learned counsel for the petitioner/ accused argued that the learned District and Sessions Judge Gilgit has erroneously dismissed the post-arrest bail application of the petitioner/ accused without any cogent reason as the petitioner/accused is innocent and has falsely been implicated in the instant case by the complainant with mala fide intention and the allegations levelled against the petitioner/accused are baseless, therefore, the bail dismissal order dated 15-03-2025 of the learned District and Sessions Judge Gilgit is injudicious, based on conjectures, misconception, misinterpretation and devoid of any legal force, therefore, liable to be set aside. The learned counsel for the petitioner/accused further submitted that the petitioner/accused has issued a company cheque. The learned counsel for the petitioner/accused further submitted that notice under section 30 of negotiable instrument Act has not been issued prior to the lodging of FIR. The learned counsel for the petitioner/accused further submitted that above mentioned section does not fall within the ambit of prohibitory clause of section 497, Cr.P.C. The learned counsel for the petitioner/accused further submitted that the no any agreement is available on record regarding transaction of vehicle. The learned counsel for the petitioner/accused further submitted that petitioner/accused is behind the bars since his arrest. The learned counsel for the petitioner/accused further submitted that there is no business transaction between petitioner/ accused and complainant. The learned counsel for the petitioner/accused lastly submitted that the case of the petitioner/accused requires further inquiry therefore, the petitioner/accused may be admitted to post arrest bail in the interest of justice. The learned counsel for the petitioner/accused has relied on judgments of superior Courts reported as PLJ 2024 SC Note 24.

5. On the other hand the learned Deputy Advocate General and learned counsel for the complainant vehemently controverted the arguments advanced by the learned counsel for the petitioner/ accused and argued that the petitioner/accused is directly nominated in the FIR and the section 489-F, P.P.C fully attracts to the instant case, therefore, the petitioner/accused is not entitled for facility of post-arrest bail. The learned Deputy AG, and learned counsel for the complainant further submitted that the learned District and Sessions Judge Gilgit has rightly dismissed the bail application of the petitioner/accused on merit after hearing both the parties. The learned Deputy AG, and learned counsel for the complainant further submitted that the petitioner /accused has malafidly issued cheque to the complainant despite having knowledge that there was no sufficient amount in his bank account, and the offence is non-bailable. The learned Deputy AG, and learned counsel for the complainant further submitted that petitioner/accused is habitual offender and he is involved in 06 other similar nature cases. The learned Deputy AG, and learned counsel for the complainant further submitted that the concerned Bank has issued a memo. regarding insufficient fund in the account of petitioner/accused and the Bank has dishonored the cheque. The learned Deputy AG, and learned counsel for the complainant further submitted that an agreement between the parties regarding transition of vehicle is available, therefore, the instant petition may be dismissed to meet the ends of justice. The learned DAG and learned counsel for the complainant have relied on judgments of superior Courts reported as 2025 YLR 147.

6. I have heard the learned counsel for the parties at length and also gone through the available record of the case with their able assistance.

2025 M L D 1740

[Gilgit-Baltistan Chief Court]

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

State through Additional Advocate General G.B and another---Petitioners

Versus

Arif Hussain---Respondent

Criminal Misc. No. 334 of 2024, decided on 26th May, 2025.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 447, 427, 290 & 109---Explosive Substances, Act (VI of 1908), Ss. 6 & 7---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Criminal trespass, mischief by causing loss or damage to the amount of fifty rupees or upward, public nuisance, abetment, unlawful and malicious use of explosive substances, act of terrorism---Application for cancellation of bail, dismissal of---Allegation against the accused-respondent was that the roof of the house of complainant collapsed as a result of explosion caused by accused-respondent---Record showed that the present accused/respondent was admittedly not present at the place of occurrence at the time of occurrence---Complainant had involved the respondent/ accused for the offence under S.109, P.P.C.---Moreover, Superior Courts of the country from time to time have enunciated/settled certain principles governing cancellation of bail, which are, if the bail granting order was patently illegal, erroneous, factually incorrect and had resulted into miscarriage of justice; if accused had misused the concession of bail in any manner; if accused had tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses; if there was likelihood of absconsion of the accused beyond the jurisdiction of the Court; it accused had attempted to interfere with the smooth course of investigation; if accused had misused his liberty while indulging into similar offence and some fresh facts and material had been collected during the course of investigation with tended to establish guilt of the accused---Said conditions/grounds were lacking in the case of the petitioner---Trial Court had exercised the jurisdiction on the basis of material and pre-arrest bail granted to the present respondent by the Trial Court was justified---Bail cancellation petition being devoid of merit was dismissed, in circumstances. [p. 1743] A, B, C & D

DAG Malik Sherbaz assisted by Naib Court SIP Abdul Shakoor for the State.

Amjad Hussain, Irfan Ullah and Muhammad Saleem Khan for Respondent.

Date of hearing: 26th May, 2025.

Order

Ali Baig, C.J.---The instant petition under section 497(5) Cr.P.C has been filed by the petitioners against the impugned judgment/order dated 19-10-2024 passed by learned Anti-Terrorism Court No.1 Gilgit in Bail Application No. 23/2024, whereby the learned Anti Terrorism Court No.1 Gilgit has allowed/confirmed the pre- arrest bail in favour of the present respondent/accused.

1. Precisely, stated the allegation against the respondent as disclosed in the FIR is that the complainant namely Ansar Hussain son of Ghulam Hussain resident of Sakwar District Gilgit has lodged a written complaint to the Station House Officer, Police Station Jutial Gilgit by contending that on 09-04-2024 at about 03:00 am severe explosion occurred in his house and at that time no family members were present at his house. He was on main road to bring some edible items for Sehri and then he immediately rushed towards his house, when he reached to his house, he saw Iftikhar Hussain S/o Hussain Asghar, Syed Ibrar Hussain S/o Syed Fida Hussain came out from of his house and were running towards the road and fled away in a car parked on the road. When complainant entered in his house he saw roof of house was collapsed as a result of explosion.

2. It is pertinent to mention here that the present respondent/accused had filed a petition under section 498, Cr.P.C before the learned Anti-Terrorism Court No.1 Gilgit for grant of ad-interim pre-arrest bail. Initially the learned Trial Court/ learned Anti-Terrorism Court No.1 Gilgit had allowed the ad-interim pre-arrest bail to the respondent /accused and later on after hearing arguments on behalf of both the parties the learned Anti-Terrorism Court No.1 Gilgit has confirmed the ad-interim pre-arrest bail already granted to the accused/respondent vide order dated 19-10-2024.

3. Feeling aggrieved and dissatisfied with the impugned judgment/ order passed by learned trial court/Anti-Terrorism Court No.1 Gilgit, the present petitioners have filed the instant petition under section 497(5) Cr.P.C before this Court seeking cancellation of bail facility extended to the respondent/ accused.

4. The learned Dy.A.G argued that the order/judgment passed by the learned trial court is against the law and the facts on the record of the case, hence, liable to be set aside. The learned Dy.A.G further submitted that the accused/ respondent is directly nominated in the FIR. The offences mentioned in the FIR are not bailable and fall within the ambit of prohibitory clause of section 497, Cr.P.C. The learned Dy.A.G further submitted that the order/judgment passed by learned trial court is result of misreading and non-reading of material available on the record of the case. The learned Dy.A.G further submitted that the order passed by the learned trial Court/ Judge Anti-Terrorism Court No.1 Gilgit is illegal, perverse, fanciful, without merit and arbitrary, hence, liable to be set aside. The learned Dy.A.G further submitted that accused/respondent is misusing the bail facility extended to him and try to tamper with the PWs. The learned DAG further submitted that grounds for grant a pre-arrest are different from the grounds of post arrest bail and the learned learned Anti-Terrorism Court No.1 Gilgit has not taken the view in accordance with law, hence, the judgment/order passed by the learned Anti-Terrorism Court No.1 Gilgit is liabel to be set aside. The learned Dy.A.G lastly submitted that the instant petition may be accepted and the accused/ respondent may be committed to judicial custody by cancelling his bail facility to meet the ends of justice.

5. On the other hand the learned counsel for the accused / respondent vehemently opposed the contentions raised by the learned counsel for the petitioners and submitted that the respondent/ accused is innocent and has falsely been implicated in the case by the police in league with the complainant with ulterior motive. The learned counsel for the accused / respondent further submitted that no any incriminating material has been recovered from the present respondent/ accused and the co- accused of the present respondent has already been granted pre-arrest bail by this Hon'ble Court, hence, rule of consistency applies to the case of the present respondent/accused. The learned counsel for the accused /respondent further submitted that the present accused has been charged for the offence under section 109, P.P.C. hence, the case of the present respondent/accused requires further inquiry. The learned counsel for the accused /respondent further submitted that the petitioners have failed to establish the grounds as required under law for cancellation of bail. The learned counsel for the accused /respondent further submitted that the judgment/ order passed by learned trial court is result of correct appreciation of law and material available on file and petition in hand has been filed with malafide intention. The learned counsel for the accused / respondent further submitted the order passed by the learned trial court be maintained by dismissing the instant petition to meet the ends of justice.

6. We have heard the learned counsel for the parties at a considerable length and have minutely gone through the available police record with their able assistance.

7. From perusal of available record it transpires that the present accused/respondent was admittedly not present at the place of occurrence at the time of occurrence. The complainant has involved the respondent/accused for the offence under section 109, P.P.C. alleging that the occurrence was taken place at the behest of the present petitioner, but the prosecution has not been able to collect any evidence regarding abetment of the respondent/accused in the occurrence. Principal accused who were directly nominated in the FIR namely Iftikhar Hussain and Ibrar Hussain have been admitted to pre-arrest bail by this Court vide bail order dated 21-10-2024, hence rule of consistency applies to the case of the respondent/accused. Moreover, superior Courts of the Country from time to time have enunciated/settled certain principles governing cancellation of bail. Those are enumerated as under:-

i. If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice.

ii. That the accused has misused the concession of bail in any manner.

iii. That the accused has tried to hamper prosecution evidence by persuading/pressurizing prosecution witness.

iv. There is likelihood of absconsion of the accused beyond the jurisdiction of the Court.

v. That the accused has attempted to interfere with the smooth course of investigation.

2025 M L D 1955

[Gilgit-Baltistan Chief Court]

Before Ali Baig, C.J and Jahanzeb Khan, J

Muhammad Hanif---Petitioner

Versus

The State---Respondent

Cr. Misc. No. 99 of 2025, decided on 12th March, 2025.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S. 9(1), S.Nos. 3(c), 15---Possession of narcotic substance---Bail, grant of---Further inquiry---Allegations against the petitioner-accused were that 1000-grams chars was recovered from the vehicle driven by the co-accused of the present petitioner-accused---Record showed that the petitioner/accused was travelling in a vehicle which was driven by co-accused of the present petitioner/accused by getting lift from him---Contraband narcotic/charas was recovered from beneath of driving seat and no contraband narcotic had been shown recovered from direct possession of the petitioner/accused---Recovery of chars had been shown from secret cavities/beneath driving seat of vehicle/car which was driven by the co-accused of the present petitioner---Only circumstance/allegation against the petitioner was that he was travelling in the said vehicle driven by the driver/co-accused---In absence of any clear evidence on record prima-facie establishing conscious knowledge of the petitioner to the extent of concealed narcotic/chars or his nexus with the driver/co-accused, his participation in the commission of offence required further inquiry---Hence, petitioner was entitled for concession of bail---Furthermore, there was nothing in record to show that the petitioner/accused was previously convicted or had been arrested in the case of similar nature in past---Bail petition was allowed, in circumstances.

2023 YLR 171; 2024 MLD 1407; 2024 YLR 1487 and 2024 YLR 2467 ref.

Zahoor Ahmed and Ejaz-ul-Haq for Petitioner.

Samee Ahmed, Special Prosecutor for ANF/State.

Date of hearing: 12th March, 2025.

Order

Ali Baig, C.J.---The petitioner/ accused has filed the instant petition under section 497 Cr.P.C seeking post arrest bail in criminal case bearing FIR No. 01/2025 registered at Police Station ANF Gilgit for offence under section 9, 1(3)(C), 15 CNSA, 1997.

1. The brief facts of the case as narrated in the FIR are that on 20.02.2025 at about 1730 hours, the local police of ANF PS Gilgit have recovered 1000 grams charas from the Toyota Permio Car which was driven by the co-accused of the present petitioner/ accused. Resultantly the above mentioned FIR was registered against the petitioner/accused and his co-accused.

2. After registration of the above referred FIR the concerned IO started investigation of the case and after completion of usual investigation got committed the accused/petitioner to judicial custody at Gilgit. The present petitioner had filed an application under section 497 Cr.P.C before the learned trial Court/Special Judge CNSA for grant of post arrest bail. The learned trial court/Special Judge CNSA after hearing arguments on behalf of the parties has dismissed the bail application filed by the present petitioner/accused, vide order dated 26.02.2025 passed in B.A No. 133/2025.

3. Feeling aggrieved and dissatisfied with the impugned order passed by the learned trial Court, the present petitioner/accused has filed the instant bail petition before this Court seeking his enlargement on bail in the above mentioned criminal case.

4. The learned counsel for the petitioner/accused submitted that the police has lodged the above mentioned FIR against an innocent person who has no previous criminal record as such petitioner/ accused has falsely been implicated in the instant case by the police. The learned counsel for the petitioner further submitted that the alleged recovery has been effected on a busy road but there is no private witness of the occurrence which makes the case of prosecution doubtful and calls for further inquiry. The learned counsel for the petitioner/ accused further submitted that prosecution has failed to submit challan of the case before the trial Court within the mandatory period of 14 days. The learned counsel for the petitioner/ accused further submitted that the petitioner/accused had no knowledge of the contraband in the vehicle as he was neither driver nor owner of the car rather he was travelling in the car. The learned counsel for the petitioner/accused lastly submitted that it is a border line case, therefore, the accused/petitioner is entitled for concession of bail. The learned counsel for the petitioner/accused has relied upon judgments of superior Courts reported as 2023 YLR 171, 2024 MLD 1407; 2024, YLR 1487 and 2024 YLR 2467.

5. On the other hand the learned Special Prosecutor of ANF vehemently opposed the contentions raised by the learned counsel for the petitioner/ accused and submitted that the FIR has been promptly lodged, the accused /petitioner has directly been nominated in the FIR and a huge quantity of contraband Charas has been recovered from the possession of petitioner / accused. The learned Special Prosecutor further submitted that the petitioner/ accused has been caught red handed during transportation of the charas by the police, hence, he is not entitled for concession of bail. The learned Special Prosecutor further submitted that the offence is heinous one, against the society and falls within the ambit of prohibitory clause of 497 Cr.P.C, therefore, the accused/ petitioner is not entitled for any relief. The learned DAG further submitted that the judgment/order passed by the learned trial Court is well reasoned and result of correct appreciation of law and material available on record. The learned Special Prosecutor lastly submitted that the instant bail petition may be dismissed to meet the ends of justice.

2025 M L D 309

[High Court (AJ&K)]

Before Chaudhary Khalid Rasheed, J

Shukar Jan and another---Appellants

Versus

Bashir and others---Respondents

Civil Appeal No. 322 of 2019, decided on 1st November, 2024.

(a) Inheritance---

----Children of son of the propositus---Share of their deceased father, entitlement to---Whether the plaintiffs/appellants, being children of deceased son of predecessor, were entitled to get a share from the property of their predecessor or not?---Admittedly, the predecessor-in-interest had four sons and it is also not denied by the plaintiffs that their father (son of predecessor) died in the lifetime of predecessor, hence after the death of the predecessor, the mutation was attested in favour of three sons, as father of plaintiffs died in the lifetime of his father, hence the plaintiffs cannot claim a share from his(predecessor's) inheritance---No misreading and non-reading of evidence or violation of any settled law had been noticed in the impugned judgments passed by both the Courts below---Second appeal filed by plaintiffs, being merit-less, was dismissed, in circumstance.

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

----S.147---Private partition---Scope---Children of son of the propositus---Share of their deceased father, entitlement to---Scope---Whether the plaintiffs/appellants, being children of deceased son of predecessor, were entitled to get a share from the property of predecessor or not?---Though it is not disputed that predecessor-in-interest partitioned his property amongst his four sons but the private partition of his legacy was not confirmed as was required by S.147 of Land Revenue Act, 1967, thus it had got no legal sanctity---No misreading and non-reading of evidence or violation of any settled law had been noticed in the impugned judgments passed by both the Courts below---Second appeal filed by plaintiffs, being merit-less, was dismissed, in circumstance.

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

----S.42---Decree for declaration---Scope---Improvement on the suit-land---Suit of the plaintiffs was concurrently dismissed---Validity---Since the defendants had not claimed possession from the plaintiffs, hence the question of improvements by the plaintiffs in the suit land was irrelevant and if the defendants claimed possession of the land from the plaintiffs then the plaintiffs could claim improvement but merely on the basis of improvements, the plaintiffs could not be declared as the owners of the suit land, hence a decree for declaration could not be passed in their favour---No misreading and non-reading of evidence or violation of any settled law had been noticed in the impugned judgments passed by both the Courts below---Second appeal filed by plaintiffs, being merit-less, was dismissed, in circumstance.

(d) Inheritance---

----Children of son of the propositus---Share of their deceased father, entitlement to---Scope---Whether the plaintiffs/appellants, being children of deceased son of predecessor, were entitled to get a share from the property of predecessor or not?---Though one of the defendants admitted the claim of the plaintiffs but the Courts below had rightly observed that if said defendant had accepted the claim of the plaintiffs they might transfer the suit land in their names from him through any recognized mode and merely on the basis of admission of said defendant the plaintiffs could not be declared owners of the land---No misreading and non-reading of evidence or violation of any settled law had been noticed in the impugned judgments passed by both the Courts below---Second appeal filed by plaintiffs, being merit-less, was dismissed, in circumstance.

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

----S. 100---Question of facts, determination of---Second appeal---Maintainability---Suit filed by the plaintiffs was concurrently dismissed---Validity---Only question of facts were involved in the present second appeal which had concurrently been decided by both the Courts below---Concurrent findings of facts cannot be reversed in the second appeal unless some apparent misreading, non-reading of evidence has been spotted by the appellant or flagrant violation of any statutory law has been committed by the Courts below---No misreading and non-reading of evidence or violation of any settled law had been noticed in the impugned judgments passed by both the Courts below---Second appeal filed by plaintiffs, being merit-less, was dismissed, in circumstance.

2022 SCR 416 ref.

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

----S. 1(2) [as amended vide Transfer of Property (Amendment) Act, 2021]---Children of son of the propositus---Share of their deceased father, entitlement to---Retrospective effect---Scope---Though an amendment has been effected in Transfer of Property Act, 1982 vide Transfer of Property (Amendment) Act, 2021 qua the children of son of the propositus being declared entitled to get the share of their deceased father but the said Amendment has not been given a retrospective effect rather it has been blatantly mentioned in S.1 subsection (2) of the Transfer of Property Act, 1882, that it shall come into force at once, hence said amendment is also not helpful to the plaintiffs/appellants---No misreading and non-reading of evidence or violation of any settled law had been noticed in the impugned judgments passed by both the Courts below---Second appeal filed by plaintiffs, being merit-less, was dismissed, in circumstance.

Muhammad Dawood Khan Abbasi for Appellants.

Rasheed Ahmed Mughal and Chaudhary Muhammad Ishaq for Respondents.

Date of hearing: 30th October, 2024.

Judgment

Chaudhary Khalid Rasheed, J.---The captioned appeal has been filed preferred the judgment and decree recorded by the learned District Judge Neelum dated 14.09.2019, whereby, judgment and decree recorded by learned Civil Judge Athmuqam dated 31.10.2018 has been maintained.

Brief facts forming background of the instant appeal are, appellants herein filed a suit for declaration cum perpetual injunction against respondents herein in the Court of Civil Judge Athmuqam wherein it was pleaded that predecessor of the parties namely Raza Muhammad was owner of suit land who in his lifetime partitioned his land among his four sons namely Nabi Ullah, Akhbar Ullah, Saleh Muhammad and Ghulam Sarwar in equal shares. It was contended that father of the plaintiff No.1 Saleh Muhammad died in lifetime of his father Raza Muhammad, whereupon defendants started trespassing in the share of plaintiffs which is in the possession of plaintiffs. It was further contended that father of plaintiffs was given land comprising khewat No.09/09 measuring 20 kanals and 4 marlas out of which the plaintiffs are in possession of 12 kanals and 5 marlas of land whereas rest of 7 kanals and 19 marlas is in illegal possession of defendants. It was also stated that father of plaintiffs was given 11 kanals and 10 marlas from khewat No.02/02 and plaintiffs are in possession of 8 kanals and 12 marlas whereas, the defendants have forcibly occupied 2 kanals and 18 marlas land. Similarly, father of plaintiffs was given 10 kanals, 7 marlas and 6 sarsai of land from khewat No.01/02 which has been snatched by the defendants. It was also contended that plaintiffs have done enormous improvements in the suit land.

Defendants, except defendant No.5 who admitted the claim of the plaintiffs by filing cognovit, contested the suit by filing written statement wherein the claim of plaintiff was refuted. The learned trial Court framed issues in the light of pleadings of the parties, provided them opportunity to lead evidence and after hearing pros and cons released the suit vide its judgment and decree dated 31.10.2018. Feeling aggrieved, respondents herein presented an appeal before District Judge Neelum on 26.01.2019. The learned first appellate Court after hearing parties, concurred with the findings of the trial Court and send away the appeal through impugned judgment and decree dated 14.09.2019, hence the captioned appeal.

The learned counsel for the appellants reiterated the facts and grounds already agitated before the Courts below by submitted that father of plaintiffs was given his share by Raza Muhammad in his lifetime and the predecessor of plaintiffs Saleh Muhammad remained in possession of the land in the lifetime of his father Raza Muhammad, hence the plaintiffs as being the legal heirs of Saleh Muhammad are entitled to get their share from the property of Raza Muhammad given to their father Saleh Muhammad but the Courts below miserably failed to understand the in hand controversy and wrongly dropped the suit filed by plaintiffs herein.

The learned counsel for the respondents supported the impugned judgments on all counts and prayed for the dismissal of the instant appeal.

I have heard the learned counsel for the parties, gone through the record of the case with utmost care and caution.

The moot point which is required to be determined by this court is as to whether the plaintiffs/appellants were entitled to get a share from the property of Raza Muhammad or not? It is an admitted position that Raza Muhammad had four sons and it is also not denied by the plaintiffs that Saleh Muhammad predecessor of plaintiffs died in the lifetime of his father Raza Muhammad, hence after the death of Raza Muhammad, the mutation was attested in favour of three sons namely Nabi Ullah, Akhbar Ullah and Ghulam Sarwar, so the Courts below accurately observed that as predecessor of plaintiffs Saleh Muhammad died in the lifetime of his father Raza Muhammad, hence the plaintiffs cannot claim a share from the inheritance of Raza Muhammad. Though it is not disputed that Raza Muhammad partitioned his property amongst his four sons but the private partition of the legacy of Raza Muhammad was not confirmed as was required by section 147 of the West Pakistan Land Revenue Act, 1967, thus has got no legal sanctity.

Since the defendants have not claimed possession from the plaintiffs, hence the question of improvements by the plaintiffs in the suit land is irrelevant and if the defendants claims possession of the land from the plaintiffs then the plaintiffs can claim improvement but merely on the basis of improvements, the plaintiffs cannot be declared as the owners of the suit land, hence a decree for declaration cannot be passed in their favour.

Though one of the defendants namely Ghulam Sarwar admitted the claim of the plaintiffs but the Courts below have rightly observed that if defendant No.5 has accepted the claim of the plaintiffs they may transfer the suit land in their names from him through any recognized mode and merely on the basis of admission of defendant No.5 the plaintiffs cannot be declared owners of the land. The Courts below have appreciated every iota of evidence adduced by the parties in a legal fashion and reached at a just conclusion which hardly requires any indulgence by this Court.

It is also pertinent to mark that only the question of facts are involved in the captioned second appeal which have concurrently been decided by both the Courts below. It is a trite law that concurrent findings of facts cannot be reversed in the second appeal unless some apparent misreading, non-reading of evidence has been spotted by the appellant or flagrant violation of any statutory law has been committed by the Courts below. Reliance in this regard may be placed on 2022 SCR 416, wherein the Supreme Court of Azad Jammu and Kashmir at page 428 observed as under:-

2025 M L D 504

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

Mumtaz Naz and another---Petitioners

Versus

Azad Government of the State of Jammu and Kashmir through Chief Secretary and 11 others---Respondents

Writ Petition No. 2012 of 2024, decided on 11th October, 2024.

Azad Jammu and Kashmir Council Extradition of Fugitive Offenders, Act (II of 1984)---

----Ss. 3 & 5---Penal Code (XLV of 1860), Ss. 406 & 506---Writ petition---Transfer of accused to Pakistan---Scope-----Petitioners sought direction to the respondents to restrain them from arresting and shifting the petitioners to Pakistan---Petitioners alleged that respondents wanted to arrest and transfer them on pretext of Azad Jammu and Kashmir Council Extradition of Fugitive Offenders Act, 1984, as well as Extradition of Fugitive Offenders Act, 1995, which was against the basic and fundamental rights of petitioners as well as other State subjects, thus, the same were not sustainable and were liable to be struck down---Validity---In the present case, FIR was registered against the petitioners, and other co-accused under Ss. 406 & 506, P.P.C, on the complaint of respondent No. 12---Allegation of embezzlement of amount of Rs. 90 lac had been levelled against the petitioners and other co-accused by the complainant---Concerned police were investigating the matter and accused-petitioners, had also been nominated in the alleged FIR, who were hiding themselves from the police and moved the petition---Circumstances of the case suggested that the concerned respondents had adopted the due course of law and had not committed any violation of law and rules---Petitioners, had failed to point out any illegality or irregularity on the part of respondents, thus, the request made by the petitioners through the present petition was without any substance---Case of the petitioners was mainly based on mere apprehensions---Constitutional petition was dismissed accordingly.

Lt. Col. Sanaullah Raja v. Muhammad Shafi and 2 others 1997 PCr.LJ 1527 rel.

Kashif Azad for Petitioners.

Javed Anwar Janjua, Zaman Ali Dogar, Sardar Farhat Manzoor Khan Chandio, Ch. Zulfiqar Nadeem, Khalid Bashir Mughal and Haroon Zahid Dogar for Respondent No. 12.

Judgment

Syed Shahid Bahar, J.---Through the titled writ petition filed under Article 44 of Azad Jammu and Kashmir Interim Constitution, 1974, the petitioners beseeched following relief:-

"It is, therefore, most humbly prayed by accepting the instant writ petition, the non-petitioners may very graciously be restrained from arresting or transferring the petitioners to Pakistan in garb of the FIR No. 196/2024 under sections 406 and 506 TP dated 04.04.2024, without adopting procedure provided in Azad Jammu and Kashmir Council extradition of fugitive offender Act, 1984 and 1995. It is further prayed that Sections 3 to 6 of Azad Jammu and Kashmir Council Extradition of Fugitive Offender Act, 1984 and 1995 may very kindly be declared void, non-reciprocal, against the basic and fundamental rights of the petitioner. It is further requested that sections of Azad Jammu and Kashmir Council Extradition of Fugitive Offender Act, may kindly be struck down. Any other relief admissible under law may also be granted in the interest of justice."

1. Facts of the case as per petitioners briefly stated are that SHO, Police Station Kot Sultan, District Liyyah, Pakistan got registered a false and concocted FIR vide No. 196/2024, under sections 406 and 506 P.P.C/(TP) with connivance of complainant and with the help of the respondents, while the petitioners have not committed any offence as alleged in the FIR. The petitioners contended that the respondents are hatching conspiracy and want to arrest and transfer the petitioners on pretext of Azad Jammu and Kashmir Council Extradition of Fugitive Offenders Act, 1984 as well as Extradition of Fugitive Offenders Act, 1995. Petitioners alleged that the sections 3, 4, 5 and 6 of the aforesaid Act are against the basic and fundamental rights of petitioners as well as other state subjects, thus, the same are not sustainable and liable to be struck down because, stated provisions are discriminatory, against the Interim Constitution, 1974 being not reciprocal, therefore, liable to be declared against basic and fundamental rights of the petitioners as well as other state subjects. The petitioners averred that act of respondents regarding arrest and transfer to Pakistan is based on mala fide intentions just to deprive the petitioners from basic and fundamental rights, protected by the Constitution, therefore, respondents are liable to be discouraged and restrained from arresting the petitioners and thereafter transferring to Pakistan without adopting relevant law.

2. Comments have been filed on behalf of respondent No. 11 (SHO, Police Station Kot Sultan), wherein he refuted the claim of the petitioner and contended that the FIR has been registered against the petitioners along with other co-accused quite in accordance with law. Investigation in the matter is initiated and statements of the witnesses under Section 161, Cr.P.C have also been recorded. To arrest the accused, warrant of arrest has been obtained from District Magistrate concerned; all legal process to arrest the accused/petitioners has been adopted. He contended that on 02.08.2024 a letter was issued by the Home Department Azad Jammu and Kashmir to District Magistrate Kotli who gave permission and all the documents have been showed to Superintendent of Police, Kotli regarding permission to arrest the accused/petitioners. He finally averred that all the legal process regarding arrest of the accused/petitioners has been completed.

3. Preliminary arguments heard. Record appended with the writ petition has been perused and I have also gone through the law on the subject with due care.

4. The claim of the petitioners is that the respondents may be restrained from arresting or transferring the petitioners to Pakistan in garb of FIR No. 196/2024, without adopting procedure provided in Azad Jammu and Kashmir Council Extradition of Fugitive Offenders Act, 1984 and 1995. They prayed that Sections 3 to 6 of Azad Jammu and Kashmir Council Extradition of Fugitive Offenders Act, 1984 and 1985 may very kindly be declared void, non-reciprocal, against basic and fundamental rights of the petitioners.

5. In such like matter the law is very clear. It is important to reproduce the relevant sections of Azad Jammu and Kashmir Council Extradition of Fugitive Offenders Act, 1984.

3. Warrant of arrest:- When any police officer of Pakistan comes to Azad Jammu and Kashmir the Police of Azad Jammu and Kashmir shall provide full assistance and active cooperation to such police officer for the arrest of such fugitive offender.

4. ……………………….

5. Application for transfer of fugitive offender to Pakistan.-

Upon the arrest of a fugitive offender under section 3, an application shall be made to the District Magistrate in whose District the arrest has been made for the transfer of such offender and the property seized under section 4 and the District Magistrate shall, upon such application, order the transfer of such application, order the transfer of such offender and property to the concerned police officer of Pakistan.

1. Moreover, in the Azad Jammu and Kashmir Council Extradition of Fugitive Offenders Ordinance, 1995, the proper method to arrest and transfer of the offender/accused has been described. The relevant sections are as under:-

"(3) Warrant of arrest: When any police officer of Pakistan comes to Azad Jammu and Kashmir with a warrant for the arrest of a fugitive of offender who is suspected to be for the time being residing in Azad Jammu and Kashmir the Police Azad Jammu and Kashmir shall provide full assistant and active cooperation to such police officer for the arrest such fugitive offender.

4. …………………….

(5) Application for transfer of fugitive offender to Pakistan. Upon the arrest of a fugitive offender under section 3, an application shall be made to the District Magistrate in whose District the arrest has been made for the transfer of such offender and the property seized under section 4, and the District Magistrate shall, upon such application, order the transfer of such offender and property to the concerned police officer of Pakistan."

.."

1. The learned counsel for the petitioners raised a point that Sections 3 to 6 of the Azad Jammu and Kashmir Council Extradition Act 1984 are contrary to the relevant provision of the Constitution 1974, whereas, act of respondents is against the basic and fundamental rights protected by the Constitution, 1974, hence, the same may be set-aside. In this regard, it may be mentioned here that this Court in a division bench case titled "Aqeel-ur-Rehman v. Azad Govt. and others" decided on 03.10.2019, held as under:-

"5. So far as validity of provisions of Extradition of Fugitive Offender Ordinance is concerned, this Court has already dismissed a case titled "Hasan Raza v. Azad Govt. and others" on 30.09.2019. The Interim Constitution, 1974 undoubtedly guarantees free movement of a State Subject within the territory of Azad Jammu and Kashmir but it is subject to restriction by any law for the time being enforce. State Subject of Azad of Jammu and Kashmir are free to move to Pakistan and citizen of Pakistan are also allowed to enter in the territory of Azad Kashmir without any visa restriction. If the impugned Ordinance, 1995 is declared as invalid at the wish of a culprit, it would tantamount to declare the State territory as a safe haven for the culprits. There should be a mechanism for arrest of an accused person who is alleged to have committed a crime in Pakistan and the impugned Ordinance, 1995 has been envisages for the same purpose. Free movement of a State Subject does not mean that an accused alleged to have committed an offence in Pakistan cannot be arrested by any means. The legislature validly envisaged the impugned Ordinance which authorizes a police officer from Pakistan to arrest an accused in Azad Kashmir. However, a further procedure has been devised for handing over such accused to Pakistan Police. The impugned law cannot be considered as against the provisions of constitution merely for the reasons that it is not reciprocal, as it does not provide a method for arrest of Pakistani citizen who is alleged to have committed a crime in Azad Kashmir. No violation of fundamental rights of the State Subject is found in the instant case, so, the instant writ petition is not maintainable. It may be added here that a fugitive of law has no right to claim protection from arrest and law cannot be declared as unconstitutional just to benefit an accused."

1. In another case referred to and relied upon by the learned counsel for the petitioners titled "Lt. Col. Sanaullah Raja v. Muhammad Shafi and 2 others" reported as 1997 PCr.LJ 1527, the Hon'ble Apex Court of Azad Jammu and Kashmir held as under:-

"After the arrest of the accused-respondent, it was obligatory on the District Magistrate under Section 5 of the Ordinance known as Azad Jammu and Kashmir Extradition of Fugitive Offenders Ordinance, 1995 and section 5 of the Act known as Azad Jammu and Kashmir Extradition of Fugitive Offenders Act, 1984, to hand over the accused-respondent to Anti-Narcotics Force, Rawalpindi, instead of making a reference to the High Court/Shariat Court."

1. While in the instant case an FIR No. 196/2024 was registered against the petitioners, herein, and other co-accused under Section's 406 and 506, P.P.C. at Police Station Kot Sultan, District Layyah Pakistan, on the complaint of Pir Syed Kamran Ali Hijveri (respondent No. 12, herein). Allegation of embezzlement of amount of Rs. 90 Lac has been levelled against the petitioners and other co-accused by the complainant. The concerned police are investigating the matter and accused-petitioners, herein, have also been nominated in the alleged FIR, who are hiding themselves from the police and moved this petition. Comments have been filed on behalf of concerned SHO/SI Police Station Kot Sultan, wherein he stated as under:-

2. Thus, in the above circumstances of the case, it can safely be held that the concerned respondents have adopted the due course of law and have not committed any violation of law and rules. Petitioners, herein, have failed to point out any illegality or irregularity on the part of the respondents, thus, the request made by the petitioners through the instant petition is having without any substance is hereby rejected.

3. The case of the petitioners mainly henges on mere apprehensions, all the apprehensions have evaporated by the comments filed by the police department.

4. Next prayer and ground of attack of the petitioner is against sections 3 to 6 of the AJK Council Extradition of Fugitive Offenders Acts, 1984 and 1995. But during the course of arguments, the petitioner has failed to point out the vires of above provisions of law, thus, in such eventuality all presumption are to be taken in a sense that law made by the legislature is intra vires rather contra. Trite that mala fide cannot be attributed to the legislature, wisdom exposed by the legislature in the impugned law cannot be questioned at random, without establishing that said law is in opposition with the Constitution.

2025 M L D 589

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

Professor Dr. Naznain Habib, Chairman Sociology and Psychology Department, University of Azad Jammu and Kashmir Muzaffarabad and others---Petitioners

Versus

University of Azad Jammu and Kashmir through Registrar, Muzaffarabad and others---Respondents

Writ Petitions Nos. 2348 of 2024, 2857 and 2999 of 2023, decided on 22nd November, 2024.

(a) Educational institution---

----Dean, appointment of---University of Azad Jammu and Kashmir Statute (Statute) relating to appointment, powers and duties of Dean---Role of Vice Chancellor and Chancellor in recommending the panel of candidates for appointment of Dean---Scope---Adoption of unwritten policy/consistent practice of rotation ignoring the seniority as prescribed in the Statute---Effect---Criteria of seniority as provided in the Statute was substituted by established practice---Validity---Under the University Statute panel of 03 senior candidates was to be recommended by the Vice Chancellor to the Chancellor for consideration---No bar had been imposed by the Statute on the candidates for reconsideration and inserting their names in the fresh panel for the reason that they had already served for a term of 3 years against the post of Dean---Consideration of remaining Professors from seniority list excluding senior-most Professor, who had already served as Dean Faculty of Arts received no recognition from bare perusal of the Statute, thus, such like arbitrary and self-created criterion could not be allowed to substitute plain language of the Statute---Act of the Assembly could not oppose the Constitution, vis-à-vis rules made under the Act could not override the Act, likewise policy or for that matter any circular or practice could not be allowed to take a different approach which was not indicated in the Statute, thus, practice of the University Authority in the guise of accommodating all the employees from the seniority list was alien and ran counter to the Statute, which could not be approved and endorsed---Entire proceeding qua sending the panel against the post of Dean, Faculty of Humanities and Social Sciences, was at odds with the Statute, thus, no relief was extended to petitioners, nor the panel sent in deviation of Statute was endorsed---Two constitutional petitions were disposed of with a direction to the respondents to initiate the matter of appointment of Dean in terms of criteria laid down in the Statute, and third constitutional petition, in which administrative orders had been challenged, was dismissed as the same had become a past and closed transaction.

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

----Art. 44---Writ petition---Maintainability---Pre-requisite---It is a pre-requisite qua maintainability of a constitutional petition to indicate any violation committed by the respondents' side under the rules and regulations by which petitioner was being governed---Constitutional petition would not be maintainable where petitioner failed to point any violation of law.

2000 YLR 1369 and 2000 CLC 2029 rel.

(c) Interpretation of statutes---

----It is celebrated canon of construction of statutes that no word can be added or read in the statute if it is not provided therein.

(d) Administration of justice---

----When a particular method of performance of an act is prescribed under an Act or Rule, then such act must be performed according to the prescribed method alone or not at all.

M. Muneer Raja v. Chairman AJK Council 2018 SCR 48 and Govt. of Punjab v. Messers United Sugar Mills 2008 SCMR 1148 rel.

Raja Sajad Ahmed Khan for Petitioner/Naznain Habib.

Syed Zulqarnain Raza Naqvi for Petitioner/Javed Iqbal Khan.

Raja Gul Majeed Khan, Legal Advisor for University of AJ&K.

Barrister Humayun Nawaz Khan for Respondent No. 5.

Haider Rasheed Mughal, A.A.G. for the Official Respondents.

Petitioner Sardar Javaid Iqbal Khan in person.

Judgment

Syed Shahid Bahar, J.---Identical law points and facts are involved in all the titled writ petitions, therefore, these were clubbed up, heard together and are decided through this single judgment.

1. Brief facts of the petition No.2348/2024 filed under Article 44 of Azad Kashmir Interim Constitution, 1974, by the petitioner Prof. Dr. Naznain Habib (Chairman Sociology and Psychology Department UAJ&K) are that petitioner is a permanent employee of the University of AJ&K and currently; a Professor in Sociology BPS-21. Petitioner contended that according to University Statute, Dean of Faculty shall be appointed by Chancellor on the recommendations of Vice Chancellor from amongst 3 senior most of the Faculty for the period of 3 years. Petitioner averred that Dean of faculty of Humanities and Social Sciences Dr. Abdul Qadir Khan has been sent on deputation at Allama lqbal Open University Islamabad vide notification dated 15.08.2024 and post of Dean became vacant. Petitioner contended that according to Statute of University, respondent No.2 (Vice Chancellor University of AJ&K, Muzaffarabad) sent three names of senior most professors i.e. (1) Petitioner, (2) Professor Sardar Javed, (3) Dr. Sameena Sabir and recommended the petitioner for appointment of Dean, but according to reliable sources the Worthy Chancellor approved/appointed private respondent as Dean Faculty of Humanities and Social Sciences and petitioner tried her best to obtain recommendations and appointment/approval order but respondents refused to issue the same, however, formal notification has not been issued as yet.

2. In petition No.2857/2023, the petitioner Dr. Sardar Javaid Iqba1 Khan briefly stated that currently he is Professor of Economics in BPS-21. Petitioner contended that according to the Statute of the University (Calendar), Dean of Faculty shall be appointed by the Chancellor on the recommendation of Vice Chancellor from amongst the three senior most Professors in the faculty for a period of three years. The petitioner vehemently contended that he is senior most in the order of seniority and only two years are left in his retirement from the University. Petitioner averred that he moved an application for the notification of Dean of H&SS and moved various applications for the appended record but was not supplied by the respondents. Petitioner prayed that the order/Notification of new Dean of Humanities and Social Sciences if passed in favour of Prof. Abdul Qadir Khan may very kindly be declared as null and void. He further prayed that the respondents may very kindly be directed to appoint the petitioner as Dean Faculty of Humanities and Social Sciences, UAJ&K, Muzaffarabad.

3. In Writ Petition No.2999/2023 filed under Article 44 of Azad Jammu and Kashmir, the petitioner Prof. Dr. Sardar Javed Iqbal Khan, is seeking infra relief:-

It is therefore, very humbly prayed on behalf of the petitioner that by accepting this writ petition in following manners:-

1. That, the one side Inquiries orders No.67- 5460/AC/2010 dated 11.11.2010 and order of Authorized Officers, Ex-Director Advanced Study and Research and Director Quality Enhancement Cell of the University and Registrar No.F15- 17/AC/81-378/17, dated 24.02.2017 may very kindly be set aside declaring as illegal, against the University rules.

2. That, without this justice, the petitioner will suffer irreparable loss in his career of last two years of his service because petitioner will retire in 2025.

1. That the petitioner also requests respected High Court to bound the University for the determination of seniority list to resolve the faculty Seniority issue."

In the instant matter, the Hon'ble Apex Court vide order dated 27.09.2024 directed this court to decide the lis expeditiously.

1. Written statement has been filed on behalf of respondents Nos.1, 2 and 4 in Writ Petition No.2348/2024, wherein the official respondents contended as under:-

2. Separate written statement has also been filed on behalf of respondent No.6, wherein the claim of the petitioner has been negated and he contended that he is senior most professor and is eligible for the post of Dean of Humanities and Social Sciences.

3. In reply of Writ Petition No.2857/2023, written statement has been filed on behalf of official respondents wherein the claim of the petitioner in the above writ petition has been denied and prayed for dismissal of the writ petition.

4. In reply of the Writ Petition No.2999/2023, the official respondents submitted comments /written statement wherein the claim of the petitioner has been denied and contended that instant petition has been filed with unclean hands. They contended that previously petitioner approached this Court with same cause of action and petition of the petitioner was dismissed by this Court, hence, principle of resjudicata is applied and writ is liable to be dismissed on this score. The respondents denied the whole stance of the petitioner and lastly prayed for dismissal of the writ petition.

5. I have heard the learned counsel for the parties at considerable length and gone through the case with utmost care.

6. As adumbrated it is candidly oozing from the University Statutes that panel of 03 senior candidates is to be recommended by the Vice Chancellor to the worthy Chancellor for consideration. No bar has been imposed by the Statute to the candidates for reconsideration and inserting their names in the fresh panel on the reason that they have already served for a term of 3 years against the post of Dean. Consideration of remaining Professors from seniority list excluding senior-most Professor who had already served as Dean Faculty of Arts receives no recognition from bare perusal of the University Statutes. Thus, such like arbitrary and self-created criterion cannot be allowed to substitute plain language of the University Statutes. It is celebrated cannon of construction of Statutes that no word can be added or read in the Statute if it is not provided therein.

7. Stance of the University authorities that it is consistent practice of the University authorities to fill up the post of Dean on the basis of rotation after completion of 3 years term from rest of the employees left in the seniority who have not enjoyed the status of the post in order to provide equal opportunity to all the relevant employees from the seniority.

8. Be that as it may, whatever might be the wisdom behind the unwritten policy or consistent practice of the University, no such like policy or practice can take the place of command of the Statute.

9. Trite that Act of the Assembly cannot oppose the Constitution, vis-a-vis rules made under the Act cannot override the Act, likewise policy or for that matter any Circular or practice cannot be allowed to take a different way which is not indicated in the Statute. Thus, in this sense, practice of the University authority in the guise of accommodating all the employees from the seniority list is alien and runs counter to the Statute which cannot be approved and endorsed.

10. It is within province of the Vice Chancellor to recommend a panel of 03 candidates, thus he can only recommend the panel of 3 candidates not a single candidate without pointing out any specific candidate. Selection of the candidate from the panel of 03 candidates is up to the learned Chancellor. Appointment and selection of candidate from panel of 03 is to be carried out by the Chancellor of the University.

11. As reflecting from the record the Panel sent by the Vice Chancellor on the basis of claimed consistent practice is ex-facie in violation of the command of the Statute i.e. Statutes Relating to appointment, powers and duties of Dean. The relevant portion of the aforesaid Statutes is as under:-

"Statutes Relating to Appointment, Powers and Duties of Dean

Appointment, Powers and Duties of Dean

1. There shall be a Dean of each Faculty, who shall be the Chairman and Convener of the Board of the Faculty.

1. The Dean of each Faculty shall be appointed by the Chancellor from amongst the three senior most Professors in the Faculty for a period of three years and shall be eligible for re-appointment. Provided that if no Professor is available in a Faculty, a Professor from some other Faculty may act as Dean till a Professor of the Faculty itself is appointed."

(Emphasis supplied)

1. Neither the University authorities have taken into consideration this aspect of the matter at eve of sending panel and subsequently the matter was also overlooked by the learned Chancellor at the time of consideration of Panel as per seniority list appended with the petition. The name of the petitioner is figuring at Sr.No.6 of the Seniority list appended with the written statement offered by the University authorities as Annexure "A", while employees who are figuring at Sr. Nos. 1, 2, 3 and 5 have been totally ignored, neither their names have been inserted in the Panel nor they are under consideration. Order of the seniority as given in the Seniority list "Annexure A", attached with the written statement, is reproduced as under:-

The University of Azad Jammu and Kashmir Muzaffarabad

(Establishment-I)

List of Professors Faculty of Humanities and Social Sciences

| | | | | | | | | | | | | | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | --- | | Sr. | Name | Department | Date of Birth | Date of Retirement | Initial appointment | Date of Appointment | | | | Academic qualification | Remarks | | | | | | | | As Asst. Prof. (BPS-19) | As Asst. Professor (BPS-20) | As Professor (BPS-21) | As Meritorious Professor (BPS-22) | | | | 1. | Dr.Nadeem Haider Bukhari, University Meritorious Professor | Department of English | --- | --- | --- | --- | --- | --- | --- | --- | --- | | 2. | Prof. Dr. Ayesha Sohail | Department of English | --- | --- | --- | --- | --- | --- | --- | --- | --- | | 3. | Prof. Dr. Haroon-ur-Rashid | Department of English | --- | --- | --- | --- | --- | --- | --- | --- | --- | | 4. | Prof. Dr. Sardar Javaid Iqbal Khan | Kashmir Institute of Economics | --- | --- | --- | --- | --- | --- | --- | --- | --- | | 5. | Prof. Dr. Abdul Qadir Khan | Department of English | --- | --- | --- | --- | --- | --- | --- | --- | --- | | 6. | Prof. Dr. Naznain Habib | Department of Sociology | --- | --- | --- | --- | --- | --- | --- | --- | --- | | 7. | Prof. Dr. Samina Sabir | Kashmir Institute of Economics | --- | --- | --- | --- | --- | --- | --- | --- | --- |

1. As far as the point raised by the petitioner Prof. Dr. Sardar Javed lqbal Khan with regard to setting aside the one side inquiries dated 11.11.2010 and order of Authorized officer dated 24.02.2017 in writ No.2999/2023 is concerned, it is important to mention here that against the aforesaid orders, the said petitioner has failed to file appeal before any competent forum or authority concerned, i.e. Syndicate, and said orders have attained finality. Now at this stage after lapsing so many years, instant petition has been moved for setting aside the same, which in my view is not maintainable.

2. It is pre-requisite qua maintainability of a constitutional petition to indicate any violation committed by the respondents' side under the rules and regulations by which the petitioner is being governed.

3. Constitutional petition would not be maintainable where petitioner fails to point out any violation of law.

4. Modus operandi adopted by the University authorities qua appointment against the post of Dean runs counter to the University Statutes. Proceedings qua sending Panel excluding the most senior professors available in the faculty in guise of consisting practice or unwritten policy cannot be attended and approved unless rules are not amended, or modified for the purpose. Under umbrella of law, a thing requiring its performance in a specific way can only be carried out in specific indicated alignment of law, any zigzag in this connection to derail the proceedings from the track of rules can safely be held nullity in the eye of law.

(Underling is mine)

1. It is now almost settled principle of law that when a particular method of performance of an act is prescribed under an Act or rule then such act must be performed according to the prescribed method alone or not at all.

2025 M L D 601

[High Court (AJ&K)]

Before Chaudhary Khalid Rasheed, J

Muhammad Ashfaq---Appellant

Versus

Najma Bibi and another---Respondents

Family Appeal No. 41 of 2019, decided on 2nd February, 2024.

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

----Ss. 17 & 25---Appointment of mother as guardian of minor---Welfare of minor---Application for guardianship filed by divorced mother was allowed---Validity---While appointing or declaring the Guardian of a minor or handing over the custody of the minor under S.17 of the Guardians and Wards Act, 1890, the paramount consideration would be the welfare of the minor---Subsection(3) of S.17 of the Guardians and Wards Act, 1890, makes it blatantly obvious that if the minor is mature enough to express his opinion then he cannot be compelled to live with the person against his/her wish---In the present case, the minor was mature enough and had showed his wish to live with his mother even before this/High Court, therefore, the preference, interest and welfare of the minor could not be ignored---Minor could not be compelled to live with appellant / father---Custody of minor, who is mature enough to express his/her opinion, could not be given against his wish---Court below had appreciated every iota of evidence in a legal fashion and reached at a just conclusion, which did not suffer from any legal infirmity---Appeal filed by father of minor was dismissed, in circumstances.

2003 YLR 3245 ref.

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

----Ss. 17 & 25---Appointment of mother as guardian of minor---Welfare of minor---Application for guardianship filed by divorced mother was allowed---Validity---Appellant / father was disentitled to be appointed as guardian of the minor because since the decision of the Court below the minor was in custody of respondent /mother but appellant, who was father of the minor, did not pay him maintenance and a separate suit for maintenance of the minor was filed by respondent / mother against appellant---Court below had appreciated every iota of evidence in a legal fashion and reached at a just conclusion, which did not suffer from any legal infirmity---Appeal filed by father of minor was dismissed, in circumstances.

Mst. Rasheedan Bibi v. Additional District Judge and 2 others 2012 CLC 784 ref.

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

----Ss. 17 & 25---Appointment of mother as guardian of minor---Welfare of minor---Application for guardianship filed by divorced mother was allowed---Validity---Record revealed that the ward was studying and respondent / mother was providing him all the facilities of life---Appellant /father had contracted second marriage and had also got children from his second wife ; hence, if the custody of minor was given to the appellant it would tantamount to leaving him (minor) at the mercy of his step-mother while the respondent (mother of minor) did not contract second marriage and gave her whole life for her son(minor)---There is no alternate to a lap of a mother and lap of step-mother cannot be its equivalent---Mother of minor is a natural guardian and has preferential right to be appointed as guardian of the minor until it is proved that welfare of the minor is not in living with his mother due to her involvement in immoral activities but in any other case she cannot be deprived from the custody of her minor son---Court below had appreciated every iota of evidence in a legal fashion and reached at a just conclusion, which did not suffer from any legal infirmity---Appeal filed by father of minor was dismissed, in circumstances.

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

----Ss. 17 & 25---Appointment of mother as guardian of minor---Welfare of minor---Application for guardianship filed by divorced mother was allowed---Plea of the appellant /father was that respondent /mother herself gave custody of minor to him through an agreement---Validity---Plea of the appellant had no plausible substance because neither said agreement was proved through evidence nor such agreement was legal one rather it would be deemed to have been obtained by coercion and in an illegal manner for the reason that the mother has got a preferential right to be appointed as guardian of minor son and while appointing guardian of minor the prime consideration is the welfare of the minor and nothing else---Thus, in the present case, the welfare of the minor was to live with his mother, and appellant who even paid no maintenance to the minor and did not bother to even meet him could not be appointed as guardian of the minor---Court below had appreciated every iota of evidence in a legal fashion and reached at a just conclusion, which did not suffer from any legal infirmity---Appeal filed by father of minor was dismissed, in circumstances.

Hafiz Fazal ur Rehman Dar for Appellant.

Ch. Muhammad Ashraf Ayaz for Respondent No. 1.

Date of hearing: 29th January, 2024.

Judgment

Chaudhary Khalid Rasheed, J.---The captioned appeal has been filed against the impugned judgment dated 16.02.2019 passed by the learned Civil Judge/Guardian Judge Barnala, whereby Najma Bibi, respondent No.1 herein has been appointed guardian of minor Noor Muhammad.

Precise facts necessary for the disposal of instant appeal, are Najma Bibi respondent No.1 herein filed an application for her appointment as guardian of minor namely Noor Muhammad in the Court of Civil Judge/Guardian Judge Barnala wherein, it was submitted that she was married to defendant No.1 Muhammad Ashfaq and out of their wedlock, a son namely Noor Muhammad took birth. It was contended that respondent has divorced her on 15.07.2017 and has forcibly snatched minor son, therefore, she may be appointed as guardian of the minor. Respondent contested the application by filing objections. The learned trial Court framed issues in the light of pleadings of the parties, provided them opportunity to lead evidence and at conclusion of the proceedings, accepted the application and appointed respondent No.1 herein as guardian of the minor vide its impugned judgment dated 16.02.2019, hence the captioned appeal.

The learned counsel for the parties have addressed the Court in the light of their respective stance.

I have heard the learned counsel for the parties and perused the record of the case with utmost care and caution.

Section 17 of the Guardians and Wards Act, deals with the matters to be pondered while appointing a person as guardian of the ward. For ready reference, section 17 of the Guardians and Wards Act are reproduced as under:

"17. Matters to be considered by the court in appointing guardian. (1) In appointingor declaring the guardian of a minor the Court shall, subject to the provisions of this section, the guided by what, consistency with the law to which the minor is subject, appear in the circumstances to be for the welfare of the minor.

(2) In considering what will be for the welfare of the minor, the Court shall have regard to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent, and any existing or previous relations of the proposed guardian with the minor or his property.

(3) If the minor is old enough to form an intelligent preference, the court may consider that preference.

(4) The Court shall not appoint or declare any person son to be a guardian against his will."

By now, it is a settled proposition of law that while appointing or declaring the Guardian of a minor or handing over the custody of the minor under section 17 of the Guardians and Wards Act, the paramount consideration would be the welfare of the minor. The law laid down in Irshad Begum's case [2003 YLR 3245] can be referred in support of the proposition. The relevant observations appearing in Para Nos.9 and 10 are reproduced:

"9. According to the aforesaid provisions of law the Personal Law to which the minor is subjected should be the guide for the appointment of a guardian which is further subject to two limitations: (i) the provision of this section (ii) and welfare of the minor. If consideration of the welfare of the minor or the conclusions arrived at as a consequence of the guidance in the section itself makes it impossible to follow the guideline of the Personal Law then the same may be abandoned and steps most conducive to the welfare of the minor and consistent with either of the provisions of this section or the welfare of the minor then it should be followed.

10. While appreciating the welfare it has to be seen that the welfare includes it moral, spiritual and material well doing. While considering what is the welfare of the minor the Court shall have regard to the age, sex, religion of the minor, the character and capacity of the proposed guardian, his nearness of kin to the minor and the preference of the minor if he or she is intelligent enough to make it."

Subsection (3) of section 17, reproduced herein above makes it blatantly obvious that if the minor is matured enough to express his opinion then he cannot be compelled to live with the person against his/her wish. In the instant case, the minor is matured enough and has showed his wish to live with her mother even before this Court, therefore, the preference, interest and welfare of the minor cannot be ignored, thus, cannot be compelled to live with appellant. The custody of minor, who is matured enough to express his/her opinion, cannot be given against his wish. In this regard I may refer to 2015 SCR 1455, supra, wherein at page 1463 the apex Court of Azad Jammu and Kashmir has observed as under:-

"As we have discussed above, the statement of the minor that he is not willing to go with his father and wants to live with his mother, therefore, we do not compel him to live with his father as the custody of the minor is always subject to the welfare of the minor. The minor is matured enough to express his independent opinion."

Furthermore, there is another aspect of the case which disentitles appellant to be appointed as guardian of the minor that since decision of the Court below the minor is in custody of respondent No.1/mother but appellant who is father of the minor did not pay him maintenance and a separate suit was filed by respondent No.1 against appellant, herein, for maintenance of the minor. Reliance may be placed on a case titled Mst. Rasheedan Bibi v. Additional District Judge and 2 others reported as (2012 CLC 784), wherein the learned Judge of Lahore High Court Lahore in para 9 of the judgment held as under:

2025 M L D 760

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

Hira MashooQ---Petitioner

Versus

S.S.P District MIrpur and 5 others---Respondents

Criminal Revision Petition No. 119 of 2024, decided on 12th December, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 491---Inherent power of High Court---Matter of custody of minor child---Scope---Petitioner (mother) had filed application for restoring interim custody of the alleged detenue/ minor, who was forcibly removed from her custody by grandfather, but said application was turned down---Validity---As per record the minor was removed from the natural guardianship of the petitioner­­­---High Court under S.491, Cr.P.C, could not sit over the matter to decide the custody of the minor permanently as it was within jurisdictional domain of the Guardian Court, however as a stopgap measure High Court in the interest of minor, keeping in view his welfare, could decide his interim custody---Grandfather could not be preferred over natural guardian i.e. mother---In such like eventuality when father was also abroad, mother would be in better position to maintain and look after the child and provide him proper livelihood particularly when the mother (petitioner) took the plea that respondent had removed the custody of minor forcibly---Mother of the minor properly maintained the minor and after her marriage with another person whether she had lost her right of custody and also what was in the interest and welfare of the minor required thorough evidence to be recorded which could only be done before a Guardian Court---Minor was produced before the Court, and his grandfather, who was a man of old age also appeared in person---Seemingly the minor was under pressure and frightened and prior to any reply he was looking at the face of his grandfather---So far as the stance of the respondent that the petitioner herself had waived/quit the right of custody through an out of Court agreement, was not tenable in law---It was a matter of enforcement of constitutionally guaranteed rights of minor who under the law was to be given in the custody of mother as a natural guardian (until the Guardian Court finally decides the matter of legal custody of the minor)---Age of minor was approximately 5/6 years and his father was admittedly abroad---Both parents were natural guardians of the minor and entitled for interim custody, but in the absence of one of the natural guardian/father a minor of tender age should not usually be given in the interim custody of someone else other than mother---Depriving a minor from the custody of one of the natural guardians in guise of any agreement to give him in the custody of someone else other than natural guardians was improper---Thus, Court was inclined to give the minor in the interim custody of the real mother as a natural guardian---Petition was disposed of accordingly.

2001 YLR 2165; 2009 PCr.LJ 32; PLD 1995 Lah. 151; PLD 2003 Kar. 54; 2007 YLR 1028; PLD 2009 Kar. 325 and 2021 YLR 1267 rel.

Raja Robas Akhtar for Petitioner.

Taimoor Ali Khan for Respondents Nos. 4 and 5.

Sajid Nawaz, A.A.G for the State.

Order

Syed Shahid Bahar, J.---Revision petition at hand is filed by the petitioner Hira Mashooq against the decision of the learned Sessions Judge, Mirpur, dated 08.06.2024, through which her application filed under Sectio 491,Cr.P.C qua restoring the interim custody of the alleged detenue minor, who was forcibly removed from her custody was turned down.

1. Facts skimming the surface are that petitioner remained in marital ties with Sufian Bashir, (respondent No.3) for a short term but on account of certain difference the story of marital life came to an end. Alleged detenue minor Ghaziyan is only issue from the said wedlock (which meet the fate of break up), father of the minor is living abroad, age of the minor is approximately 5 years. As per stance of the petitioner the minor who was living with her in her natural guardianship was removed from her custody forcibly in guise of an agreement (manufactured in her ailment under undue influence) and ultimately handed over to the grandfather who himself is a man of old age. Application was turned down by the Court below, through the impugned order dated 08.06.2024, hence, the instant revision petition.

2. In pursuance of production order the detenue/minor was produced yesterday, case was adjourned and now taken up for arguments and decision.

3. Heard, record perused.

4. Counsel for the petitioner vehemently contended that as no other efficacious and immediate remedy was available, thus application under Section 491, Cr.P.C was filed qua production of the minor and his interim custody to the petitioner, but the Court below erred in law by declining the prayed relief while on other hand, counsel for the respondent staunchly opposed the revision petition and argued that decision under revision is perfectly in accordance with law. He added that petitioner is estopped to claim custody of the minor on account of her waiver qua custody.

5. Be that as it may variety of powers had been couferred upon High Court under Section 491, Cr.P.C inter alia to set at liberty a person illegally or improperly detained in public or private custody, within its limits.

6. Jurisdiction of the High Court is duplex under Section 491, Cr.P.C. i.e. to deal with a person (sought to be produced) within its appellate criminal jurisdiction according to law and secondly to set the detenue at liberty if found to be illegally or improperly detained, or for that matter found confined in a manner not warranted by law.

7. Be that as it may, under the four corners of Section 491, Cr.P.C this Court has to focus on the points, as wither the minor who was deprived from the womb of mother (natural guardian) and given under the custody of grandfather without applying guardianship of the minor from relevant guardian court is warranted by law and in this context his custody is proper by any way.

8. As per record the minor was removed from the natural guardianship of the petitioner, this Court under Section 491, Cr.P.C cannot sit over the matter to decide the custody of the minor permanently as it is within jurisdictional domain of the guardian Court, however as a stopgap measure this Court in the interest of minor, keeping in view his welfare can decide his interim custody.

9. Grandfather cannot be preferred over natural guardian i.e. mother. I think that in such like eventuality when father is also abroad, mother would be in better position to maintain and look after child and provide him proper livelihood particularly when the mother (petitioner) took a plea that respondent have removed the custody of minor forcibly.

10. Trite law that proper fora for adjudication of the matter qua custody of the ward/minor is the guardian Court having jurisdiction under Guardian and Wards Act, 1890, but despite fact Court is blessed with powers to pass an order qua interim custody of the minor on tentative analysis of the facts, circumstances. warranting issuance of such order.

11. Thus, it can safely be held that Court is not armless in the matter. Conscious of the Court is attracted pertaining to interim stopgap arrangement for the welfare of minor and in the larger interest of justice.

12. Question whether the mother of the minor properly maintained the minor and after her marriage with another person whether she has lost her right of custody and also what was in the interest and welfare of the minor, required thorough evidence to be recorded which could only be done before a guardian Court.

13. Yesterday, on direction of the Court minor was produced before the Court, his grandfather who is a man of old age also appeared in person. Seemingly the minor was under pressure and frightened prior to any reply he was looking upon the face of his grandfather, unfortunately, ex-facie I have not found the minor child in good condition.

14. Tug of war regarding custody of the minor seems founded on ego, which is swallowing up the childhood of minor, thus, Court cannot remain silent spectator, as it is a question of safeguard and execution of the fundamental rights of the minor (stamped with Constitutional guarantee) as well. Respecting and enforcing his rights I suggest for him lap of mother which is a heavenly place for him. (Underlining is mine)

15. So far as the stance of the respondent that the petitioner himself has waived/quit the right of custody through an out of Court agreement, thus now she is not entitled to ask for custody of the minor. This stance is not tenable in law.

16. Firstly as it is a matter of enforcement of Constitutionally guaranteed rights of minor who under law is be given the custody of mother as a natural guardian (until the guardian Court finally decide the matter of legal custody of the minor). Secondly, as the age of minor is yet approximately 5/6 years, he father is admittedly abroad. Both parents are natural guardian of the minor and entitled for interim custody as per facts and circumstances, but as in the matter in absentia of one of the natural guardian particularly in such tender age minor should not usually be given the interim custody of someone else other than mother.

17. Jurisdiction of this Court is duplex under Sections 491 and 561-A, Cr.P.C, depriving a minor from the custody of one of the natural guardian in guise of any agreement in way to give him in the custody of someone else other than natural guardians is improper Thus, I am inclined to give the minor in the interim custody of the real mother as a natural guardian, forthwith, subject to furnishing a guarantee that she will not remove him from the territorial jurisdiction of guardian Court, Mirpur, however order is tentative in its nature quo interim custody and time being as temporary measures subject to final determination by the guardian Court (if opted by the parties).

18. If a person produced was a minor the Court could make over his custody to the guardian and if he was major then only jurisdiction which lay with the Court was to set him at liberty.

19. The present layer of struggle on part of the petitioner is for restoration of her natural custody by removing from the improper custody.

20. Objection of the non-applicant qua dismissal of the application on the strength of argument that she had already solemnized second marriage, thus she is not entitled for custody is discarded as firstly the petitioner has denied the stance and produce divorce-deed, secondly if so then whether the mother of the minor is entitled for permanent custody is a matter finally to be decided by the guardian Court, where all such points like interest and welfare of the minor will be taken up and required to be decided in light of the evidence. Let the matter to be decided by the guardian Court independent of the tentative findings of this Court.

21. Notwithstanding that a person may have a right to move the guardian Court for custody of minor, yet he can in appropriate case also approach High Court for restoration of custody of minor to the person to whom it rightly belongs. Any arrangement made by the High Court, however would be interlocutory and subject to final decision, if any of the Guardian Court.

22. Trite that there cannot be any substitute for a mother and the lap of mother is God's own cradle for child. Snatching a child of such a tender age from lap of the mother without a legal sanction by way of getting guardianship Certificate amounts to mental torture to the minor and mother, restoration of interim custody in favour of mother in such like cases is justified as Lap of mother is a heavenly place for a child of tender age, that too she has acquired natural and inherent right to keep her child close to her bosom. (Emphasis supplied)

23. For the above multiple reasons, petition at hand is disposed of as infra;

2025 M L D 1569

[High Court (AJ&K)]

Before Sardar Muhammad Ejaz Khan and Khalid Rasheed Chaudhary, JJ

The State through Muhammad Ilyas---Appellant

Versus

Muhammad Sharif and others---Respondents

Criminal Appeals Nos. 13, 118 and Murder Reference No. 11 of 2013, decided on 8th November, 2022.

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

----Ss. 302(b), 324, 452, 337 & 109---Arms Ordinance (XX of 1965), S. 13---Criminal Procedure Code (V of 1898), S. 265-D---Qatl-i-amd, attempt to commit qatl-i-amd, trespass, hurt, abetment, possession of illicit weapon---Appreciation of evidence---Confession of accused at the time of framing of charge---Accused was charged for committing murder of four persons of complainant party and also causing injuries to a female by stabbing with a sharp edged weapon---Record showed that the Trial Court while recording confessional statement of convict-appellant, had ignored the legal requirements of law particularly that confessional statement could only be taken into consideration if the Court was satisfied that the same was true and was recorded voluntarily i.e. not obtained by torture, coercion or inducement---No doubt that appellant confessed the guilt of offence but even then the Trial Court was duty bound to provide an opportunity of engaging counsel or give some further time and should also have put a question to convict, regarding legal consequences of his statement as convict was an illiterate person and was not aware of the legal implication of his confession---Hence, for the sake of safe administration of justice, it was enjoined upon the Trial Court to consider the factum that whether convict- appellant had made such confessional statement voluntarily or due to torture, coercion, pressure, influence, false belief, and inducement in view of surrounding circumstances of the case but record of the case did not substantiate that any such effort had been made in that regard---Thus, the Trial Court failed to discharge its legal duties as provided under law---Thus appeal was allowed by setting aside the impugned judgment and matter was remanded to the Trial Court for decision afresh.

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

----Ss. 302(b), 324, 452, 337 & 109---Arms Ordinance (XX of 1965), S. 13---Criminal Procedure Code (V of 1898), S. 417(2A)---Qatl-i-amd, attempt to commit qatl-i-amd, trespass, hurt, abetment, possession of illicit weapon---Appreciation of evidence--- Appeal against acquittal filed by state---Acquittal were S. 265-K, Cr.P.C.---Legality---Accused was charged for committing murder of four persons of complainant party and also causing injuries to a female by stabbing with a sharp edged weapon---Allegedly, case was registered against two nominated persons, convict and his wife, and Trial Court rightly awarded capital punishment to convict but wrongly acquitted co-accused/wife of convict under S.265-K of Cr.P.C. as said accused/respondent was nominated in FIR and was involved in hatching the conspiracy of murder of four innocent persons, hence, it was incumbent upon the Trial Court to provide reasonable time to prosecution for proving its case as such impugned acquittal order did not fulfill the requirement as provided under S.265-K of Cr.P.C.---Provision of S.265-K of Cr.P.C. was always conditional and could be invoked only if the Court considered that there was no probability of an accused to be convicted of any offence with which he/she was charged, but none of such grounds was available to said accused in the present case---Perusal of statements of witnesses showed that grounds for acquittal of co-accused while exercising powers under S.265-K of Cr.P.C. were not available in presence of prosecution witnesses because prosecution produced sufficient evidence in support of its version in which she had been nominated---Record showed that the Trial Court while acquitting the co-accused/respondent travelled beyond the scope of S.265-K of Cr.P.C. and committed grave illegality and material irregularity as such the impugned judgment to that extent was liable to be set-aside---Appeal was allowed by setting aside the impugned judgment and matter was remanded to the Trial Court for decision afresh.

Syed Atif Mushtaq Gillani, Urva Khan and Raja Zubair Siddique Khan for Convict/Appellant.

Bashir Ahmed Mughal for Respondent.

Raja Saeed Khan, A.A.G for the State.

judgment

Sardar Muhammad Ejaz Khan, J.---The captioned Jail Appeal No.13/13 (40/17) has been filed against the judgment passed by District Court of Criminal Jurisdiction, Muzaffarabad, on 31.01.2013, whereby convict-appellant, Muhammad Shairf, convicted and awarded sentence:-

i) Under Section 302 (a), APC death penalty on four counts as 'Qisas';

ii) Under Section 324, APC 10 years rigorous imprisonment;

iii) Under Section 337 (A-ii), APC five years rigorous imprisonment with fine of Rs.5000/- as 'Arsh';

iv) Under Section 337(F-ii) APC 3 years rigorous imprisonment and fine of Rs.5000/- as 'Daman';

v) Under Section 452, APC five years rigorous imprisonment;

vi) Under Section 13/20/65 A.O. one year simple imprisonment and find of Rs.1000/-, in default of payment of fine, he shall undergo one month simple imprisonment;

vii) Under Section 544-A of Cr.P.C., he shall pay the armount Rs. 10,00,000/- as compensation to legal heirs of deceased, in default of payment of compensation, he shall undergo further imprisonment of six months; and

viii) He was extended the benefit of Section 382 (B) of Cr.P.C.

Whereas the State filed an Appeal No.118/13 (41/17) for setting-aside judgment dated 31.01.2013 pertaining to acquittal of respondent-Misbah and reference No.11/13 (42/17) was sent by the learned Court below for confirmation of death sentence of convict-Muhammad Sharif.

1. Brief facts forming background of the instant case are that on 12.11.2012 complainant, Muhammad Ilyas, submitted a written report at Police Station, Kahori, stating therein that at midnight of 11/12.11.2012 at about 12:00 A.M., Muhammad Sharif son of Abdul Latif resident of Lahore and Mst. Misbah daughter of Mehboob-ur-Rehman, having intention of murder, entered into the house of his paternal nephew, Muhammad Iqbal son of Muhammad Saeed, and injured his nephew with successive stabs of sharp edge weapon. On the super of moment, Mst. Shahnaz Bibi wife of Muhammad Iqbal and children namely Uzma Iqbal, Munaza Iqbal, Nasir Iqbal and Muharnmad Iqbal came to rescue, Muhammad Iqbal who were also brutally injured by them with sharp edge weapon. Due to which, Mst. Shahnaz Bibi and Uzma Iqbal succumbed to injures on the spot while Munaza Iqbal was rushed to hepatize. The motive behind the occurrence is that Muhammad Sharif two months before took Misbah daughter of Mehboob-ur-Rehman with him from Tariqabad and this incident took place with the abetment of Ghulam Mohi-ud-Din alias Billa, Mst. Misbah daughter of Mehboob-ur-Rehman wife of Muhammad Sharif. If some other persons are found involved in abetment, they will be nominated during investigation. During incident, a hue and cry of victims, he along with Muhammad Arshad, Muhammad Ashraf, Muhammad Ajmal, Mansoor, resident of Sangri Sangnar who were invited in the wedding ceremony saw the occurrence while after the incident, Muhammad Sharif and Misbah were trying to flee away but were caught, hence, it has been prayed for initiating proceedings under law.

2. On this report, a case illat No.65/2012 in offences under Sections 302/452, 337/109, APC, was registered against the accused-Muhammad Sharif and his wife Misbah on 12.11.2012 at Polic Station Kahori. The accused-persons apprehended by the Police. The police visited at the spot and collected articles through different recovery memos. The dead bodies of Muhammad Iqbal, Nasir Iqbal, Uzma Iqbal and Shahnaz Bibi were shifted to CMH, Muzaffarabad for autopsy where their autopsies were conducted while statements of eye-witnesses under Section 161 of Cr.P.C. were recorded and crime weapon was recovered on the pointation accused-Muhammad Sharif. Accused-Ghulam Mohi-ud-Din was exonerated under Section 169 of Cr.P.C. while Sections 452, 337/A-ii, 337/F-ii, 324, 302, 34 APC and 13/20/65, A.O. were added during investigation. The Police after investigation submitted challan under Section 173 of Cr.P.C. on 31.12.2012 and the accused-persons were examined under Section 265-D of Cr.P.C. while accused-Muhammad Sharif got recorded his confessional statement and accused-Misbah denied the guilt of offence. On this, the learned trial Court while exercising powers conferred under Section 265-K of Cr.P.C. acquitted accused-Misbah of the charges levelled against her whereas Accused-Muhammad Sharif, was convicted and awarded death sentence in offences mentioned in pre-paras vide impugned judgment dated 31.01.2013, hence, these appeals and reference.

3. Arguments heard. Record perused.

4. As far as the contention of the learned counsel for the appellant-Muhammad Sharif is concerned that the learned trial Court was not justified to award death penalty because no opportunity was provided to him for engaging counsel as he has claimed in his appeal that he has not confessed the guilt of offence levelled against him, hence, the trial Court handed down its judgment in a hasty manner, which may be set-aside, thus, the learned trial Court may be directed to proceed with the matter as provided under law. From deep perusal of record available on the face of file, it shows that the learned trial Court while recording confessional statement of convict appellant, Muhammad Sharif, has ignored the legal requirements of law particularly a confessional statement could only be taken into consideration if the Court is satisfied that the same was true and recorded voluntarily i.e. not obtained by torture, coercion or inducement. The superior Courts laid down the dictum that if a confessional statement of the accused is recorded, the Courts should provide a reasonable time and the rule of prudence also requires consideration regarding the surrounding circumstances of the case.

5. It is apparent on the face of record that statement under Section 265-D of Cr.P.C. of convict-appellant, Muhammad Sharif, was got recorded on 17.01.2013 even if we placed no doubt that he confessed the guilt of offence but even then the learned trial Court was duty bound to provide an opportunity of engaging counsel or give some further time and should also put a question to convict-Muhammad Sharif, regarding legal consequences of his statement as convict-appellant is an illiterate person and was not aware of the legal implication of his confession, hence, for the sake of safe administration of justice, it was enjoined upon the learned trial Court to consider the factum that whether convict-appellant had made such confessional statement voluntarily or due to torture, coercion, pressure, influence, false belief, inducement in view of surrounding circumstances of the case but record of the case does not substantiate that any such effort has been made in this regard. Thus, we are of the unanimous view that the learned trial Court failed to discharge its legal duties as provided under law while handing down the impugned judgment dated 31.01.2013, hence, the same is liable to be set-aside with the direction to the learned trial Court to decide the matter on merits in accordance with law.

2025 M L D 1629

[High Court (AJ&K)]

Before Chaudhary Khalid Rasheed, J

Mudassar Hanif---Petitioner

Versus

The State through Additional Advocate General

and another---Respondents

Criminal Revision Petition No. 57 of 2024, decided on 27th June, 2025.

Criminal Procedure Code (V of 1898)---

----S. 497---Azad Penal Code (XLV of 1860), Ss. 302(b), 452 & 109---Qatl-i-amd, trespass, abetment---Bail, dismissal of---Allegation against the petitioner-accused was that he committed murder of his wife and mother-in-law by firing---Accused/petitioner in daylight entered into the house of the deceased persons, made indiscriminate firing, murdered two innocent women with premeditation which obviously shocked and affected the family of the victims and frightened the public at large---Thus, the petitioner/accused could safely be declared as a dangerous and desperate criminal because he had committed the occurrence fearlessly---Furthermore, record also revealed that eight crime empties were recovered from the scene of occurrence which prima facie revealed that he fired multiple shots which was expected to create a sense of fear in the neighbourhood, hence such behaviour of the accused also disentitled him from the concession of bail---Moreso, the statements of material prosecution witnesses had been recorded and only the statements of three witnesses were (left) to be recorded, thus on that score too, the accused was not entitled to get the concession of bail even on statutory ground because if the trial of the case was at the verge of conclusion the concession of bail was normally not expected to be awarded even on statutory grounds---Bail petition was dismissed, in circumstances.

PLD 2022 SC 112 and PLD 2024 SC 492 ref.

PLD 1990 SC 934; PLD 1994 SC 93 and 2019 MLD 906 rel.

Raja Inamullah Khan for Petitioner.

Muhammad Farooq Minhas for the Complainant.

Muhammad Khalil Ghazi, A.A.G for the State.

Date of hearing: 23rd June, 2025.

Judgment

Chaudhary Khalid Rasheed, J.---The captioned revision petition has been preferred against the order passed by learned District Court of Criminal Jurisdiction Bhimber dated 27.04.2024, whereby post arrest bail application filed by accused/petitioner has been declined.

Precise facts forming background of the instant petition are, on the complaint of Mst. Robina Kousar wife of Muhammad Shakeel FIR No.195/2021 was registered at Police Station Barnala in the offences under sections 302/452 and 109, APC on 15.09.2021. As per the allegation against the accused/petitioner was, he murdered Mst. Gulnaz and Mst. Nazir Begum with pistol. The police after investigation submitted challan before the trial Court. During trial, the petitioner herein filed an application for his release on bail on statutory ground. The learned Court below after hearing arguments pro and contra, rejected the application by declaring the petitioner as being dangerous, desperate and hardened criminal through its impugned order dated 27.04.2024, hence the captioned revision petition.

STANCE OF THE PETITIONER:

The learned counsel for the petitioner vehemently argued that the petitioner being a legal heir of the deceased persons cannot be awarded maximum punishment of Qisas. The learned advocate contended that it has not been disputed by the other side that accused person remained behind the bars for more than 3 years and 6 months, thus entitled to be enlarged on bail on statutory ground. The learned advocate claimed that an accused cannot be declared hardened, dangerous and desperate criminal merely on the ground that he killed more than one persons of a family, so the impugned order recorded by the Court below is liable to show the doors. He vehemently contended that the accused is not a previous convict, hence requested for the acceptance of the instant revision petition.

The learned counsel placed his reliance on the following case laws:

1. 2014 SCR 750;

2. 2023 SCR 442;

3. 2015 SCR 1060;

4. PLD 2022 SC 112;

5. PLD 2024 SC 492;

6. An unreported judgment of this Court rendered in case titled Muhammad Farooq and others v. The State etc. decided on 07.04.2025.

REFUTATION OF THE RESPONDENTS:

The learned counsel for the complainant confronted with vehemence that keeping in view of the manner and effect of the occurrence to the family of victim, the Court below has accurately declared the petitioner as a hardened, dangerous and desperate criminal. He proceeded further that the statements of all the important witnesses have already been recorded and the trial is at the verge of conclusion, hence the accused is not entitled to be enlarged on bail, so the impugned judgment is liable to be maintained.

The learned AAG stated that accused also murdered his mother in law, hence, he is not her legal heir thus, can be awarded the punishment of Qisas, so the revision petition is liable to turn into ashes.

I have heard the learned counsel for the parties, gone through the record of the case with utmost care and caution.

COURT OBSERVATIONS AND RELEVANT LAW:

As per contents of FIR, the accused in a daylight by arming himself with a loaded pistol entered into the house of the deceased persons, raised lalkara that he will take the life of anyone came in front of him, fired by targeting Mst. Gulnaz and thereafter also killed Mst. Nazir Begum who tried to save her daughter, both succumbed to their injuries and expired. Upon seeing occurrence, one of the inmate named Hira run out of home towards street but the accused chased her and snatched her mobile with the intention that she could not inform about the occurrence to anybody, thus it appears that the accused committed the said traumatic incident with pre-planning and in his full senses as it is evident from the record that relations between the accused and his wife Mst. Gulnaz were strained, 'Mst. Gulnaz left his house and was living in the house of her parents but he also killed his mother-in-law who just came forward to rescue her daughter due to multiple fire shots of the petitioner by a firearm weapon in an indiscriminate manner

The proviso of section 497, though extends a statuary right of bail to an accused of an offence punishable with death who is in detention for a continuous period exceeding two years and trial has not been concluded subject to the conditions that delay in the trial has not been occasioned by an act or omission of the accused or any other person acting on his behalf, he is not previously convicted and is also not a hardened, desperate and dangerous criminal. It is not denied by the prosecution that the accused is not previously convicted, however the Court below has declared the accused as hardened, dangerous and desperate criminal, thus the core question which is required to be resolved is as to whether the act of the accused comes within the ambit of a hardened, dangerous and desperate criminal or not? This question has been attended by the superior Courts in plethora of judgments. One of the landmark judgment on this point was reported as 2000 SCR 1, wherein the Supreme Court of Azad Jammu and Kashmir has observed that while deciding the question that as to whether an accused is hardened, dangerous and desperate criminal, the court has to ponder the circumstances of each case, i.e. motive of murder, part played by the accused, prima facie evidence in support of the act and the effect of the act of the accused person on the family of victim along with society at large. The relevant observations recorded at page 5 para 5 of the judgment are reproduced as under:

"We have given due consideration to the matter. We are of the opinion that the question as to whether an accused is hardened, desperate or dangerous criminal within the meaning of the aforesaid proviso is to been seen in light of the circumstances of each case, i.e., (i) motive for murder, (ii) the part which each of the accused played in the completion of the offence, (iii) prima facie evidence in support of the incriminating act attributed to the accused persons, and (iv) the effects of the act of the accused on the family of victims and on the society at large."

The Supreme Court of Pakistan in PLD 1990 SC 934 by considering the Shorter Oxford English Dictionary has defined the words hardened, desperate and dangerous by observing that for applicability of the statutory proviso of section 497, Cr.P.C. the circumstances of the each case, effect of act of accused on the victim and society should be kept in mind. The relevant observations are reproduced as under:

"According to the same dictionary the word 'harden' has been defined to mean, inter alia, (1) to render or make hard, to indurate, (2) to embolden, confirm, (3) to make callous or unfeeling and (4) to make persistent or obdurate in a course of action or state of mind. The word 'hardened' has also been defined to mean 'made hard, indurated; rendered callous; hard-hearted; obdurately determined in a course'.

The same dictionary gives the meaning of word 'desperate' inter alia, in relation to person driven to desperation hence reckless, violent, ready to risk or do anything.

The same dictionary gives the meaning of the word 'dangerous', inter alia, as fraught with danger or risk; perilous, hazardous, unsafe."

It is evident from the above observations that while dealing with the question of the applicability or non-applicability of the aforesaid proviso along with the literal meaning of the words employed in the proviso, the circumstances of each case and the fall-out of the act attributed in the accused on the victims and society should be kept in view."

As observed earlier, the accused/petitioner in a daylight entered into the house of the deceased persons, made indiscriminate firing, murdered two innocent women with premeditation which obviously unprecedentedly shocked and affected the family of the victims by created an extreme fright to public at large, thus in the light of judgment supra, the petitioner/accused can safely be declared as a dangerous and desperate criminal because he has done the occurrence fearlessly.

Furthermore, record also reveals that 8 crime empties were recovered from the scene of occurrence which prima facie reveals that he fired multiple shots which is expected to effect and create a sense of fear to the neighbourhood, hence this behaviour of the accused also disentitled him from the concession of bail.

2025 M L D 1786

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

Affeera Abbasi---Petitioner

Versus

University of Azad Jammu and Kashmir through its Registrar Muzaffarabad, Azad Jammu and Kashmir and others---Respondents

Writ Petitions Nos. 2752 and 2846 of 2024, decided on 21st May, 2025.

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

----Art. 44---Establishment of Office of Mohtasib (Ombudsman) in Azad Jammu and Kashmir Act (XIV of 1992), S.12---Educational institution---Implementation of order of Ombudsman---Writ of mandamus---Maintainability---As a general rule, mandamus does not lie where there is another plain, speedy and adequate remedy available, whereas, office of the Ombudsman was yet vacant, thus, it would be futile exercise to approach the said office for implementations of the decision rendered by the Ombudsman---Petitioner was an aggrieved person, thus, constitutional petition for issuance of writ of mandamus was maintainable.

AIR 1954 SC 403; PLD 2009 SC 644 and Choudhary Abdul Latif v. Azad Government and others 2020 CLC 1429 rel.

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

----Arts. 4(19), 11(2) & 44---Establishment of Office of Mohtasib (Ombudsman) in Azad Jammu and Kashmir Act (XIV of 1992),S.12---Educational institution---Restoration of educational process---Non-adherence of procedural fairness---Judicial review---Implementation of order of Ombudsman after having attained finality---Respondent-university instead of complying with the order of Ombudsman preferred appeal before the President, which was dismissed---Petitioner filed a writ of mandamus for implementation of orders of Ombudsman and President, whereas, respondent filed a writ of certiorari against such orders---Validity---Petitioner had been meted out with mala-fide treatment and bias, prior to passing any order qua dropping her from 1st semester as no notice was issued to her, thus, she well within time filed an application for freezing the semester to her extent, which was not further processed by the university authorities---Depriving a gold medalist student from further education was an act of mal-administration, thus, the order was not in accordance with law---Decision of the AJ&K Ombudsman was completely in line with the scheme of law and norms of justice requiring no indulgence at all---Where bad faith, ulterior motive or colourable exercise of power is oozing from the record, judicial audit is inherent in High Court in order to have a judicial review---Writ of mandamus filed by the petitioner was accepted by the High Court with a direction to implement the order of Ombudsman, which had attained finality, whereas the writ filed by the respondent/university in form of certiorari was dismissed being not maintainable and being hit by doctrine of laches.

2012 SCMR 455 and 2014 SCMR 676 rel.

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

----Art. 44---Wrong conclusion of factual controversies---Writ of certiorari---Scope---Writ of certiorari can also be issued, when the act of the authority, Court, or tribunal is extra legem or for that matter offends the norms and premise of natural justice---Wrong conclusion of factual controversies provides no room for indulgence through the lens of certiorari.

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

----Art. 44---Writ of certiorari---Scope---Certiorari is meant for providing supervisory checks/audit of the decisions/acts of the inferior tribunals/authorities in a way to ascertain on the touch stone of jurisdiction so conferred to them as well as to compare the impugned act/instruments in parlance of the relevant law---Resultantly if any decision or instrument is found beyond jurisdiction or in opposition with law annulment by way of high prerogative command is better treatment of such like orders.

AIR 1955 SC 233; AIR 1964 SC 477 and PLD 1973 SC 24 rel.

Miss Afia Abbasi for Petitioner.

Raja Gul Majeed Khan, Advocate/Legal Advisor for University of Azad Jammu and Kashmir.

judgment

Syed Shahid Bahar, J.---Above titled writ petitions have been filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974. Since identical law points and facts are involved in both the titled writ petitions, therefore these were clubbed up, heard together and are decided through this single judgment.

1. In Writ Petition No.2752/2024, the petitioner Afeera Abbasi, prayed as infra:-

"i. Direct the respondents jointly and severally to implement the order passed by the Ombudsman/ Mohtasib dated 30th November 2023 in letter and spirit.

ii. Direction may kindly be issued to the respondents Nos.2 and 4 to restore the educational process of petitioner forthwith without any delay."

FACTS TERSELY

1. Petitioner is 1st Class State Subject of Azad Jammu and Kashmir and Gold Medalist in M.Sc. She got admission in M.Phil Kashmiriyat department (Institute of Kashmir Studies), University of Azad Jammu and Kashmir in session 2020-22, and she was studying in 3rd Semester. Petitioner contended that the respondent No.3, called up her on 10.01.2022 and asked regarding the comments made by the petitioner in Whats-App student group about University fee, respondent No.3 harassed her and forcibly seized the mobile of the petitioner and kept the same in his possession for 40 hours. Petitioner submitted an application before respondent No.2 on 14.01.2022, against the act and conduct of respondent No.3 but instead of taking action against respondent No.3, the respondent No.2 and Ex-Registrar pressurized the petitioner to take back the application; petitioner refused to do so, resultantly respondents Nos.2 and 4 restrained the petitioner to attend her classes just to sweep the matter under the rug on preposterous grounds that she was dropped from the 1st Semester, whereas fact of the matter is that she is the student of 3rd Semester. In support of his stance, petitioner attached documentary evidence with the writ petition i.e. Annexures "PA" and "PB" to "PB/13". After that, petitioner submitted an application before the worthy Chancellor on 14.02.2022 against illegal act and conduct of respondents Nos.2 and 3 upon which an Inquiry Committee was constituted on 06.04.2022. Petitioner was inquired and she submitted her written response on 06.06.2022 but respondents Nos.2 and 3 deliberately did not inform the petitioner about the inquiry nor passed any written order regarding termination of petitioner from department of Kashmir Studies. After that, petitioner filed an application for redressal of her grievance before AJ&K Ombudsman, Muzaffarabad on 19.06.2023, who sought comments from the respondents and after due process of law, the Ombudsman AJ&K, Muzaffarabad, accepted the application of the petitioner and restored the education process of petitioner. Respondents preferred an appeal before the worthy President against the order/Judgment of Mohtasib/ Ombudsman, which was dismissed on 03.07.2024 and decision of the AJ&K Ombudsman was maintained. Petitioner alleged that the University authorities/respondents have not implemented the aforesaid decision of the Mohtasib, up till now, despite the fact that the same has attained finality; hence, instant constitutional petition for the implementation of the order/decision of Mohtasib due to his non-availability.

2. Written statement has been filed on behalf of respondents wherein the claim of the petitioner has been refuted by negating the version of the petitioner at length.

3. In Writ Petition No.2846/2024, the petitioners AJ&K University and others contended that the respondent No.3 on 21.06.2023 filed a Complaint before respondent No.1, alleging therein that she is student of M.Phill 3rd Semester (department of Kashmir Studies) who has been dropped from University. Respondent No.1 invited objections from University which were accordingly filed and stance of respondent No.3 has been refuted. Petitioners averred that the respondent No.1, vide order dated 30.11.2023, while accepting the Complaint filed by the respondent No.3 has directed the University to freeze the 1st Semester of respondent No.3 and to allow her to continue her education in 3rd Semester. Feeling aggrieved, the petitioners, herein, filed representation before respondent No.2. The respondent No.2 vide order/ letter dated 03.07.2024 rejected the representation filed by the petitioners. Petitioners prayed that the order dated 30.11.2023 passed by respondent No.1 and order dated 03.07.2024 passed by respondent No.2 are liable to be set aside.

4. Written statement has been filed on behalf of respondent No.3 wherein the claim of the petitioners has been rebutted and contended that the petitioners have challenged the order of Ombudsman dated 30.11.2023 and the Worthy President dated 30.07.2024 on 08.11.2024 without any explanation of such delay, hence, instant writ petition is liable to be dismissed on the ground of laches. Respondent negated the stance of the petitioners and prayed for dismissal of the writ petition.

NARRATIVE OF THE PETITIONER

1. Miss Afia Abbasi, the learned counsel for the petitioner reiterated the facts and grounds narrated in the writ petition and vehemently contended that according to Section 12 of the Establishment of the Office of Mohtasib (Ombudsman) in Azad Jammu and Kashmir, Act, 1992 in case of "Defiance of recommendation" the Mohtasib may refer the matter to the Worthy President of AJ&K for implementation but the office of Mohtasib is vacant, thus, there is no authority available for implementation of judgment of Mohtasib and the conduct of respondent No.2 caused an irreparable loss of right to education, to the petitioner by violating Section 11(2) of the Act supra, according to which Agency is duty bound to implement the judgment and order of Mohtasib within specified time and same is also negation of the Statute of University by misuse of power. Counsel for the petitioner vehemently contended that principle of law settled in various pronouncements of the Hon'ble Court as well as Apex Court that the discretionary power vests in the public authorities are liable to be exercised in a judicious manners without colorful exercise of power, but respondents Nos.2 and 4 have exercised the power in an arbitrary manner, deprived the petitioner from right to education, just to victimize her. The learned counsel prayed for acceptance of the writ petition by issuing direction to respondents to implement the decision of Ombudsman/ Mohtasib dated 30.11.2023.

The learned counsel also opposed the cross Writ Petition No.2846/2024 filed by the AJ&K Universities-petitioners and contended that petitioner has challenged the order of Ombudsman dated 30.11.2023 and the order of Worthy President dated 30.07.2024, on 08.11.2024 without any explanation of such delay, hence, petition is not maintainable. In support of her assertion, counsel for the petitioner has also placed reliance on 2022 SCR 1088, 2000 SCR 22, 2021 SCR 238, 2022 SCR 145, 2008 SCR 417.

NARRATIVE OF UNIVERSITY

1. In reply, Raja Gul Majeed Khan, Legal Advisor for University of AJ&K contended that the orders dated 30.11.2023 and 03.07.2024 passed by respondents Nos.1 and 2 are contrary to law, rules and norms of justice, hence, same are liable to be set aside. Legal Advisor vehemently contended that respondent No.3 herself admitted in her complaint that she could not give her first semester terminal papers due to her ailment, thus, respondents Nos. 1 and 2 have failed to consider this aspect of the case, therefore, in view of the facts and circumstances of the case, the impugned orders passed by respondent Nos. 1 and 2 are liable to be quashed. Legal Advisor further contended that the respondent No.1 has failed to make out a case for freezing of her first semester however, respondents Nos. 1 and 2 have not taken into consideration this aspect of the case while passing the impugned orders. He zealously contended that respondent No.3 has failed to deposit semester freezing fee and fulfilled other mandatory requirements as has been pointed out by the University, however, respondents Nos. 1 and 2 have not properly attended the stance of petitioners and illegally passed the impugned orders. Legal advisor staunchly contended that the petitioner has been dropped vide notification dated 22.09.2022, which was not challenged by her at any fora and after issuance of the said notification, only course available to petitioner to get fresh admission but she failed to do so, now at this belated stage she is not entitled to any relief. Legal Advisor finally prayed for acceptance of the writ petition by setting aside the impugned orders passed by respondents Nos. 1 and 2 as well as prayed for dismissal of cross writ filed by the respondent No.3.

2. I have heard the learned counsel for the parties and gone through the record annexed with the petition with due care.

DICTA

1. It is bitter pill to swallow, that internal system of our Educational Institutions is facing deterioration day by day. It was legitimately presumed that people who are the helm of affairs in Universities are carrying encyclopedic wisdom.

2. As the petitioner has asked for issuance of writ of mandamus, hence in this connection prime consideration is three fold. First, the petitioner must have a legal right to the performance by the public office of the particular duty sought to be enforced, secondly, the duty of the public officer which is to be enforced, in plain, positive, specific and ministerial duty presently existing and imposed by law upon the officer, thirdly, no other adequate remedy is available qua redressal of grievance.

3. As a general rule, mandamus does not lie where there is another, plain speedy and adequate remedy available. As argued and intimated that office of the Ombudsman is yet vacant, thus it would be futile exercise to approach the said office for implementations of the decision rendered by the Ombudsman.

4. Petitioner is an aggrieved person. Thus, she can maintain the constitutional petition for issuance of writ of mandamus.

5. Mala fide on part of the relevant quarters is reflecting from the record. Stance of the university authorities that the petitioner was admitted in 1st semester M. Phil Kashmiriyat and she appeared only in one paper and remained absent in the rest of papers, more so she has failed to follow the proper procedure qua freezing the semester to her extend, thus, she was dropped, and subsequent admission and participation in on line classes could not be considered or for that matter creates any right in favour of the petitioner, hence, petition of the petitioner is not sustainable. On the very face of it, stance of the university authorities is not plausible and is discarded. Having said that if any procedural loophole was fond in the procedure for applying to freeze the semester on account of ailment on part of the petitioner a lenient view was liable to be taken instead of harming the educational career of the petitioner.

6. Doctrine of Administrative justice is fully attracted in the instant case. It is also reflecting from the record that the petitioner appeared in one paper of 1st semester M.Phil and could not appear in rest of the papers on account of ailment which is established from the record in shape of medical certificate that too, the petitioner regularly participated in on line classes for 2nd semester due to covid-19, wherein she had taken face to face classes submitted written papers and was promoted in 3rd semester as well and this stance of the petitioner is further strengthen by the fact that she remained part of HEC in M.Phil based research project. Stance of the petitioner seems plausible that she has been victimized on account of statement attributed to her regarding enhancement of fee by university authorities and that is why she was dropped.

7. Perusal of decision of the learned Mohtasib (Ombudsman) and documentary record unequivocally revealed that the petitioner has been meted out with mala fide treatment and bias, prior to passing any order qua dropping the petitioner from 1st semester no notice was issued to the petitioner. Petitioner well within time filed an application for freezing the semester of her extent, which was not further processed by the university authorities. Depriving the gold medalist student from further education is an act of maladministration. Mala fide order does not qualify as action in accordance with law. Decision of the AJ&K Ombudsman, Muzaffarabad is completely in line with the scheme of law and norms of justice require no indulgence at all.

8. I am fortified to follow the verdict of the Apex Court expounded in the case titled "Choudhary Abdul Latif 2025 MLD Azad Govt. and others" 2020 CLC 1429, wherein somehow identical proposition was involved. Writ of mandamus was sought before this Court qua implementation of the decision of Ombudsman and the same was dismissed. The Honorable Supreme Court while setting aside the judgment of this Court issued a writ of mandamus for implementation of the decision of the Ombudsman. Para 7 of the above judgment is reproduced as infra:-

"In view of the above stated facts, the respondents/agency neither filed any representation before the President against the final recommendations/findings of the Ombudsman nor assigned the reasons for not complying with the same within the specified time of two months, thus, the final recommendations/findings of the Ombudsman have attained finality and under the statutory provisions of enforced law the respondents/agency has failed to do what was required by the law to be done. In this state of affairs, the appellant is an aggrieved person who has successfully established that the person performing the function in connection with the affairs of the Azad Jammu and Kashmir or local authority has failed to do what was required by the law to be done, thus, under the provisions of Article 44 of the AJ&K Interim Constitution, 1974 it was enjoined upon the High Court to exercise the extraordinary writ jurisdiction for redressal of his grievance."

Doctrine of procedural fairness

1. Doctrine of procedural fairness is somehow akin to Doctrine of due process of law, which speaks for entitlement to procedural fairness on part of the public authority/ Govt. functionary in connection with the content of fair procedures, there is a broad range of requirements, which vary according to the context in which the public function is exercised, including

(i) To give notice of a proposed decision before making it

(ii) To consult and receive written representations

(iii) To disclose information before a final decision is reached

(iv) To provide oral hearings, at which

The person offered legal representations or other assistance and has the right to cross-examine witnesses and a right to be given reasons explaining why a decision or action was taken.

Term natural justice has somehow replaced by the term general duty to act fairly, which is key element of procedural propriety.

1. In view of insertion of Article 4(19) of the interim Constitution it is by now imperative/mandatory to provide fair trial and in this parlance adhere to procedural fairness, co-exist with the ibid right. Thus, in this sense as per combine wisdom gathered from Article 4(19) read with the concept of better government provided in the preamble clause coupled with the principles of policies enshrined in the Constitution, open textured standard of fairness is required at eve of taking administrative decisions.

(Underlining is mine)

1. In exercise of extraordinary jurisdiction conferred upon this Court under Article 44 of the Interim Constitution, 1974, duty of the Court is to confine itself to the question of legality and propriety of the proceeding/orders impugned, in a sense that whether a decision making authority, exceeded its powers, committed an error of law committed a breach of the rules of natural justice, reached a decision which no reasonable tribunal/authority would have reached, or abused its powers.

2. In the matters of judicial review the basic test is to see whether there is any infirmity in the decision making process. The interference with the decision making process is warranted where it is vitiated on account of arbitrariness, illegality, irrationality and procedural impropriety or where it is actuated by mala fides.

3. Where bad faith, ulterior motive or colourable exercise of power is oozing from the record, judicial audit is inherent in this Court in order to have a judicial review.

4. In Writ Petition No.2846/2024 the relief claimed is in the shape of certiorari judicial juristic approach designed by the superior courts; can be gleaned from the infra propositions, (i) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or tribunal acts without jurisdiction or in excess of it, or fails to exercise it;

(ii) Certiorari will also be issued when the Court or tribunal acts illegally in the exercise of its undoubted jurisdiction as when it decides without giving an opportunity to the parties to be heard, or violate the principles of natural justice; and the Court issuing a writ of certiorari acts in exercise of a supervisory and not an appellate jurisdiction.

1. Trite that writ of certiorari can also be issued, when the act of the authority, Court, or tribunal is extra legem or for that matter offends the norms and premise of natural justice. Wrong conclusion of factual controversies provides no room for indulgence through the lens of certiorari.

(Underlining is mine)

1. Certiorari is meant for providing supervisory checks/ audit of the decisions/acts of the inferior tribunals/authorities in a way to ascertain on the touch stone of jurisdiction so conferred to them as well as to compare the impugned act/instruments in paralance of the relevant law. Resultantly if any decision or instrument is found beyond jurisdiction or in opposition with law annulment by way of high prerogative command is better treatment of such like orders.

(Emphasis supplied)

2025 M L D 1875

[High Court (AJ&K)]

Before Ch. Khalid Rasheed, J

Raza---Petitioner

Versus

State through Advocate General Azad Jammu and Kashmir and 2 others---Respondents

Criminal Revision Petition No. 331 of 2025, decided on 1st September, 2025.

Criminal Procedure Code (V of 1898)---

----S. 497---Azad Penal Code (XLV of 1860), Ss. 298-A & 489-Y---Use of derogatory remarks, etc., in respect of holy personages---Bail, grant of---Further inquiry---Allegation against the accused-petitioner was that he used derogatory remarks against holy personages---Accused could claim bail in bailable offences as a matter of right and a Court could not decline the same---In the present case, the accused had been alleged the commission of the offences under Ss.298-A & 489-Y, Azad Penal Code---Both the alleged offences were bailable, hence the accused was entitled to be enlarged on bail as a right---Both the Courts below failed to record orders in accordance with the principles governing the bail matters by wrongly rejecting the bail application---An unreported judgment of this Court rendered in Criminal Revision Petition No. 128/2025 dated 27.06.2025, titled Muhammad Shahbaz Ali v. The State, was referred to the Courts below but both the Courts below did not honor the same rather violated the directions of this Court---In the said judgment, this Court had categorically issued directions to all the subordinate Courts in the manner that all subordinate Courts were to grant bail whether post or pre-arrest in all bailable offences as a matter of right---Since the offences in present case were bailable, thus bail application was allowed, in circumstances---High Court (AJ&K) also issued contempt of Court notices to both the judicial offices of courts below who had ignored directions of a judgment of High Court (AJ&K).

Syed Ashfaq Hussain Kazmi for Petitioner.

Syed Faisal Gillani, A.A.G. for the State.

Date of hearing: 1st September, 2025.

Judgment

Ch. Khalid Rasheed, J.---

Foreword:

The captioned revision petition has been filed to assail the order dated 15.08.2025 passed by the learned Additional District Court of Criminal Jurisdiction Pattikah Naseerabad and the order dated 06.08.2025 passed by the learned Civil Judge/Judicial Magistrate Pattikah Naseerabad Muzaffarabad, whereby post arrest bail applications of the petitioner in the offences under sections 298-A and 489-Y A.P.C. have been declined.

STANCE OF THE PETITIONER:

Learned counsel for the petitioner while reiterated the contents and grounds already taken in the revision petition has vehemently argued that the alleged offences are bailable and it is a well settled precept of law that in bailable offences bail can be claimed as a matter of right and not as a grace of the Court but both the Courts below despite referring the judgments of this Court as well as the Hon'ble Supreme Court rejected the bail on conjectures and surmises by violating the cardinal principles governing the bail matters. He contended that on 25.07.2025 a report under section 173 Cr.P.C. has already been presented before the trial Court and the person of accused is no more required for further investigation thus denial of bail is tantamount to punish him before trial which is not warranted by law, hence, requested for acceptance of the revision petition.

REFUTATION OF THE RESPONDENTS:

While controverting the arguments, the learned AAG for the State frankly conceded that alleged offences are bailable and as per the judgments of this Court and Ho'ble Apex Court reported as 2022 SCR 714, the accused is entitled to get the concession of bail.

I have heard the learned counsel for the parties, perused the contents of revision petition, the impugned orders recorded by both the Courts below and the supra mentioned order passed by this Court with due care and caution.

COURT OBSERVATION AND THE RELEVANT LAW:

It is a bedrock maxim of law that an accused can claim bail in bailable offences as a matter of right and a Court cannot decline the same, as has been held in 2022 SCR 714 and in an unreported judgment of this Court rendered in Cri. Revision Petition No.128/2025 titled Muhammad Shahbaz Ali v. State and another; decided on 27.06.2025. In the instant case the accused has been alleged the commission of the offences under sections 298-A and 489-Y A.P.C. Both the alleged offences are bailable, hence, the accused was entitled to be enlarged on bail as a right. However, both the Courts below failed to record orders in accordance with the principles governing the bail matters by wrongly rejected the bail application.

Before parting with the case it is pertinent to mark that the learned counsel for the petitioner during the course of arguments brought into the notice of this Court that an unreported judgment of this Court rendered in Cri. Revision Petition No.128/2025 titled Muhammad Shahbaz Ali v. State and another; dated 27.06.2025 was referred to the Courts below but both the Courts below did not honor the same rather violated the directions of this Court, whereas this Court has categorically issued direction to all the subordinate Courts of AJ&K in the following manners:-

"The plain perusal of the above dictum of the Apex Court left no option to all subordinate Courts except to grant bail whether post or pre-arrest in all bailable offences as a matter of right. It is not out of the context to mention that as per the command of the Azad Jammu and Kashmir Interim Constitution all the subordinate Courts are bound to follow the verdicts of the Supreme Court and of the High Court, thus the impugned judgment is not only a clear departure from law but also in violation of the judgments of the Apex Court and command of the Constitution. The copy of this order shall be sent to the Registrar of this Court to circulate it to all the subordinate Courts for compliance."

The above mentioned judgment of this court has already been circulated to all the presiding officers of the Courts of Azad Jammu and Kashmir through Registrar of this Court. The learned counsel for petitioner has also sworn an affidavit on his behalf as well as an affidavit of his junior who argued the case before the Court below that the above mentioned judgment of this Court was referred to the Courts below during their arguments but were ignored in a contemptuous manner.

2025 M L D 26

[Islamabad]

Before Aamer Farooq, C.J

M/s Frontier Foundry Steel (Pvt.) Ltd.---Applicant

Versus

national Electric Power Regulatory Authority (NEPRA) through Registrar and 2 others---Respondents

C.M. No. 1146 of 2024 in C.M.A No. 165 of 2024, decided on 23rd July, 2024.

Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997)---

----S. 12G(6)---Civil Procedure Code (V of 1908), O.XLI, R.5(2)---Interim injunction, refusal of---Special law---Jurisdiction---Appellant company was aggrieved of order passed by NEPRA (Authority) and had sought interim injunction against such order---Validity---Matter was governed by special law which gave special jurisdiction to specified legal forum, which forum had to function within the limits of that special jurisdiction---General law conferring wider jurisdiction was ousted unless specifically made applicable under a provision of special law---High Court while deciding earlier appeals had upheld order of NEPRA Appellate Tribunal and kept in field the notification in question in line with settled approach in such cases---Injunctive relief was neither provided for by National Electric Power Regulatory Authority nor was provided before by any High Court or Supreme Court---Application was dismissed, in circumstances.

Rehmat Khan v. Federation of Pakistan and others PLD 1993 Lahore 70 and Dhunjishah B. Ghadialy and others v. Karachi Parsi Cooperative Housing Society Ltd. and others 2004 CLC 587 ref.

Nestle Pak. Limited, Lahore v. Sheharyar Kureshi 2024 CLD 502 and Flying Board and Paper Products Limited v. Government of Pakistan through Secretary Cabinet 2010 SCMR 517 rel.

Abdur Rahim Khan Jadoon for the Applicant.

Assisted by Ms. Maheen Zeeshan (Law Clerk).

Order

Aamer Farooq, C.J.---This order shall decide instant application as well as applications mentioned the Schedule attached herewith, as common questions are involved.

1. This application under Order XLI Rule 5(2) of the Code of Civil Procedure, 1908 ("C.P.C., 1908") read with all enabling provisions, has been filed to seek injunctive relief against the Respondent Authority, restraining the same from taking any adverse action and from adopting any coercive methods against the applicant till the time the applicants approach the Supreme Court.

2. By way of brief background; connected appeals were filed by the end-users of electricity challenging the consolidated judgement of the NEPRA Appellate Tribunal dated 13.02.2024 whereby the Impugned Determinations were set aside, while retaining the notification in the Official Gazette, wherein said Impugned Determinations were notified. This Court, vide its judgement dated 26.06.2024 passed in C.M.A. No.08-2024 etc., dismissed the appeals and upheld the judgment of the Tribunal for reasons recorded therein.

3. Learned Counsel for Applicants submitted that the provisions of C.P.C., 1908 are applicable in the instant case and in lieu of the same, this Court may grant the injunctive relief prayed for. It was also contended that even otherwise, this Court has inherent powers and can restrain the Respondent Authority from taking adverse action until the matter is decided with finality by the Supreme Court. Learned counsel has placed reliance on Rehmat Khan v. Federation of Pakistan and others (PLD 1993 Lahore 70) and Dhunjishah B. Ghadialy and others v. Karachi Parsi Cooperative Housing Society Ltd. and others (2004 CLC 587) in support of his submissions.

4. Arguments have been heard and the relevant laws and precedents have been perused with the assistance of the learned counsel. At the outset it is pertinent to note that the instant application has been filed in connection with C.M.A. No. 15 of 2024 which was an appeal assailing the order of the NEPRA Tribunal filed before this Court under section 12G of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997 ("NEPRA Act"). The same is reproduced below for case of reference:

"12G. Appellate procedures. -(1) Any person aggrieved by a decision or order of the Authority or a single member thereof or a Tribunal established under section 11 may, within thirty days of the decision or order, prefer an appeal to the Appellate Tribunal in the prescribed manner and the Appellate Tribunal shall decide such appeal within three months after the filing of the appeal.

(2) In examining an appeal under subsection (1), the Appellate Tribunal may make such further inquiry as it may consider necessary and after giving the Authority or the Tribunal and an appellant an opportunity of being heard, pass such order as it thinks fit, confirming, altering or annulling a decision or order appealed against:

Provided that if the decision under appeal is a determination of tariff by the Authority, then the Appellate Tribunal may in case of disagreement with the determination of the Authority, remand the matter back to the Authority with relevant guidelines, which shall be duly considered by the Authority which shall be bound to review its determination within one month of the receipt of such guidelines from the Appellate Tribunal.

(3) The decision of the Appellate Tribunal shall be in writing, detailing the issues raised in the appeal and the arguments adopted by the appellant and the Authority or Tribunal as the case may be. The Appellate Tribunal shall also provide reasons for reaching its decision with reference to the provisions of this Act and the facts of the case.

(4) The Appellate Tribunal shall provide copies of its decision to all the appellants and the respondents including the Authority or Tribunal, as the case may be, not later than five days from the date of rendering its decision.

(5) A decision or order of the Authority or Tribunal, as the case may be, shall be given full force and effect during the pendency of any appeal of such determination.

(6) The decision of the Appellate Tribunal shall be appealable before the High Court having territorial jurisdiction."

1. Section 12G of the NEPRA Act provides the complete appellate procedure within the legal framewbrk of the Authority, and the right to appeal a decision of the tribunal before the High Court is expressly given under subsection (6) of the same. It therefore follows that while hearing an appeal filed under said law, the High Court is limited to the powers granted by the same law, and it is incorrect to assert that it is on the discretion of the High Court to exercise its inherent powers as the law in question does not grant such discretion. Such inherent powers may be exercised solely where the law allows for it, for instance in constitutional petitions invoking the powers of the Court under Article 199 of the Constitution of the Islamic Republic of Pakistan or matters, in which, Code of Civil Procedure is applicable. In the instant case, the parent law is the NEPRA Act and as such, both the Court and the litigants are bound by its provisions.

2. Similarly, the contention of the applicants that C.P.C., 1908 is applicable in the instant case is incorrect. The case-law submitted by the learned Counsel is not applicable to the instant matter as neither of the cases cited pertain to appeals filed under the NEPRA Act. The legal maxim "generaliaspecialibus non derogant" is a settled principle followed by the Supreme Court and the High Courts of this country providing that general provisions do not take away from special provisions. It is trite law that the existence of a special enactment on any given matter will oust general provisions. In a case cited as Nestle Pak. Limited, Lahore v. Sheharyar Kureshi (2024 CLD 502 Lahore), where Copyright Ordinance, 1962 was applicable, the Court held that the jurisdiction of courts provided under C.P.C. is barred where a general or special,law is in force. This approach has been consistently followed by the Courts of this country and consequently, where the case at hand is governed by a special law which gives special jurisdiction to the specified legal forum, that forum is to function within the limits of that special jurisdiction, and the general laws conferring wider jurisdiction shall be ousted unless specifically made applicable under a provision of that special law.

3. Furthermore, while deciding the connected NEPRA Appeals, this Court has upheld the order of the Appellate Tribunal and has kept in field the notification in question in line with the settled approach in such cases. Reliance has been placed on, inter alia, Flying Board and Paper Products Limited v. Government of Pakistan through Secretary Cabinet (2010 SCMR 517), wherein the impugned notification regarding tariff determinations was kept in field while the matter of impugned determinations was remanded to the Authority to decide with finality, after which a fresh notification may be issued and any arrears in the tariff payments already made would be adjusted according to the finally decided determihations. The instant application is praying for an injunctive relief which is neither provided for by the NEPRA Act, nor has it been provided before by any High Court or the Supreme Court.

8(sic). In view of above, the instant applications are without merit and are accordingly dismissed.

| | | | | --- | --- | --- | | Serial No. | Case No./Year | Title | | 1. | C.M. No. 1156-2024 | M/s Frontier Foundry Steel Pvt. Ltd. v. National Electric Power Regulatory Authority (NEPRa) and others | | 2. | C.M. No. 1158-2024 | M/s Frontier Foundry Steel Pvt. Ltd. v. National Electric Power Regulatory Authority (NEPRa) and others | | 3. | C.M. No. 1160-2024 | M/s Frontier Foundry Steel Pvt. Ltd. v. National Electric Power Regulatory Authority (NEPRa) and others | | 4. | C.M. No. 1144-2024 | M/s Frontier Foundry Steel Pvt. Ltd. v. National Electric Power Regulatory Authority (NEPRa) and others | | 5. | C.M. No. 1138-2024 | M/s Frontier Foundry Steel Pvt. Ltd. v. National Electric Power Regulatory Authority (NEPRa) and others | | 6. | C.M. No. 1152-2024 | M/s Frontier Foundry Steel Pvt. Ltd. v. National Electric Power Regulatory Authority (NEPRa) and others | | 7. | C.M. No. 1150-2024 | M/s Frontier Foundry Steel Pvt. Ltd. v. National Electric Power Regulatory Authority (NEPRa) and others | | 8. | C.M. No. 1154-2024 | M/s Frontier Foundry Steel Pvt. Ltd. v. National Electric Power Regulatory Authority (NEPRa) and others | | 9. | C.M. No. 1148-2024 | M/s Frontier Foundry Steel Pvt. Ltd. v. National Electric Power Regulatory Authority (NEPRa) and others |

| | | | | --- | --- | --- | | 10. | C.M. No. 1136-2024 | M/s Frontier Foundry Steel Pvt. Ltd. v. National Electric Power Regulatory Authority (NEPRa) and others |

2025 M L D 176

[Islamabad]

Before Mohsin Akhtar Kayani, J

Civil Works Organization (CWO) through Authorized Officers---Petitioner

Versus

The land Acquisition Collector, Islamabad through Collector and 2 others---Respondents

W.P. No. 426 of 2022, decided on 25th October, 2023.

National Command Authority Act (V of 2010 ) ---

----S. 21---Capital Development Authority Ordinance (XXIII of 1960), Chapter IV & Ss. 15 & 22 to 34---Land Acquisition Act (I of 1894), S. 4---Land acquisition in Islamabad---Acquiring Agency being a strategic organization under National Command Authority---No Objection Certificate (NOC) from Capital Development Authority---Only required for construction but not during acquisition proceedings---Petitioner/ Civil Works Organization (a strategic organization under supervision/management of National Command Authority ) assailed the letter issued by respondent / Land Acquisition Collector, whereby the petitioner had been directed to obtain NOC from Capital Development Authority (CDA) for acquisition of the property---Contention of the petitioner was that, there was no requirement of NOC from CDA as such the said claim was beyond legal authority of the Land Acquisition Collector; that the land was required for public purposes namely defence purposes, which did not fall within the requirement of Capital Development Authority Ordinance, 1960, which is only meant for planning and development of Islamabad within certain framework--- Stance of the CDA was that it being the master regulator of Islamabad Capital Territory, petitioner was bound to strictly follow and implement the master plan of CDA as every zone of CDA had its own purpose within the framework of regional development plan---Whether the Land Acquisition Collector could issue direction to obtain NOC from the CDA?---Validity---Record revealed that direction-in-question had been passed with reference to the direction passed vide an order having been passed in Writ Petition No. 2016 of 2021 titled as "Mst. Kaniz Fatima and others v. FOP and others---No doubt, Capital Development Authority Ordinance, 1960, deals with the development of capital in specified areas for which CDA has been equipped with certain powers, duties and functions---In order to manage all functions, the CDA can acquire the land in a specified area in accordance with the procedure laid down in Chapter IV of the CDA Ordinance, 1960, which is provided in detail under S.15 of the CDA Ordinance, 1960---Acquisition of land has separately been explained in Chapter IV, S.22 to S.34 of the CDA Ordinance, 1960, which provides procedure/powers relating acquisition---Regarding the direction-in-question, there is no power conferred to the Collector under Land Acquisition Act, 1894, to claim NOC from the beneficiary company as no provision authorises the Land Acquisition Collector to claim such NOC---However, after the construction of building on the acquired land, the NOC is to be applied from CDA for approval of construction made thereon subject to compliance of requisite formalities provided in the CDA by-laws so that any violation if made can be checked and settled accordingly---No doubt, the planning and development, even against the acquired land, is the domain of CDA, however, while comparing the provisions of CDA Ordinance, 1960, with National Command Authority Act, 2010 and earmarking the difference in the applicable area of both the laws which are special subject laws in their own policy mandate, S.21 of the NCA Act, 2010, provides overriding effect upon any other law for the time being in force and applicable to strategic organization---In such scenario, in case of interpretational dispute, strategic organization under NCA Act, 2010, shall prevail---However, situation-in-hand was entirely different, in which only NOC had been claimed from the strategic organization to complete the process of acquisition---Defence purpose is a public purpose and specifically notified under S.4 of Land Acquisition Act, 1894, by the concerned Land Acquisition Collector---Though the same was not provided in CDA Ordinance, 1960 scheme but it did not mean that strategic organization or defence forces were not allowed to acquire land within Islamabad Capital Territory---Even otherwise, the Land Acquisition Collector does not have any authority to ask for the NOC from CDA---Even the acquisitions done earlier by any agency other than CDA, NOC had never been required, especially, when the acquisition agency was fully competent---At the most, the NOC is to be considered against the application of by-laws of CDA on the property acquired by the Civil Works Organization, if any---Resultantly, the action proposed by Land Acquisition Collector was beyond his powers, therefore, the acquisition process should be completed forthwith under the law---High Court set-aside impugned letter of Land Acquisition Collector, ICT, seeking NOC from CDA, however, the CDA authorities were to issue NOC in accordance with rules / regulations after the conclusion of acquisition proceedings when any building or construction was to be made on the acquired land under the law and to decide any such request at the relevant stage---Constitutional petition was allowed accordingly.

Federal Government Employees Housing Foundation (FGEHF) Islamabad and others v. Malik Ghulam Mustafa and others 2021 SCMR 201 ref.

Mst. Kaniz Fatima and others v. FOP and others Writ Petition No. 2016 of 2021 distinguished.

Usman Jillani for the Petitioner.

Hafiz Zahir Shah, Pr. Law Officer CWO.

Khurram Mehmood Qureshi and Ms. Mehwish Raffat for CDA.

Judgment

Mohsin Akhtar Kayani, J.---Through this writ petition, the petitioner Civil Works Organization has assailed the letter dated 25.08.2021 issued by respondent No.1 / Land Acquisition Collector/ Islamabad, whereby, petitioner has been directed to obtain. NOC from CDA for acquisition of the property.

1. Brief facts referred in the instant petition are that petitioner Civil Works Organization is a strategic organization established under National Command Authority Act, 2010, whereas, the National Command Authority supervises and manages the organization which falls within the definition of section 7 (b) of National command Authority Act, 2010. The petitioner on 26.07.2007 intended to acquire land in revenue estate of Sihala for public purpose i.e. defence purposes, approached the office of Land Acquisition Collector, Islamabad, who issued notification under section 4 of Land Acquisition Act, 1894 for the acquisition of land measuring 49 Kanals and 13 Marlas in the revenue estate Sihala, District Islamabad, however, during the completion of process the petitioner had purchased 29 Kanals and 9 Marls directly from the land owners through mutation Nos. 6710, 6727, 6728, 6737, 6748 and 6767, in the same area which has now been de-notified from the acquisition process vide corrigendum dated 20.05.2009. The Land Acquisition Collector determined price / value of land @ rupees two millions per kanal in accordance with the market value of land in 2011 and petitioner had deposited the total amount of compensation along with 15% compulsory surcharge through cross cheque in favor of respondent No.1, which has been received through letter dated 07.10.2011. Some civil proceedings were initiated by the land owners which have been settled after first round from the court of Civil Judge, Islamabad, resultantly, suit was dismissed, whereafter, respondents have approached for conclusion of the acquisition proceedings in accordance with the section 11 of Land Acquisition Act, 1894. The respondent in response to the letter dated 15.07.2021 informed the petitioner to get NOC from CDA authorities through letter dated 25.08.2021 hence, this writ petition.

2. Learned counsel for the petitioner contends that there is no requirement of NOC from respondent No.2 / CDA office as such the said claim is beyond legal authority of the Land Acquisition Collector; that the land is acquired for public purposes namely defence purposes under land Acquisition Act, 1894, does not fall within the requirement of CDA Ordinance, 1960, which is only meant for planning and development of Islamabad within the framework of regional development plan.

3. Conversely, learned counsel for CDA contends that CDA is custodian of entire land in Islamabad and as such any strategic organization if intends to acquire land for public purposes, same should have obtained NOC from the CDA in terms of CDA by-laws for the purposes of regulation of the property.

4. Arguments heard, record perused.

5. Perusal of record reveals that the entire case of the petitioner revolves around the direction passed by Land Acquisition Collector, Islamabad vide letter dated 25.08.2021 to obtain NOC from CDA with reference to the direction passed vide Order dated 09.06.2021 in Writ Petition No. 2016 of 2021 titled as "Mst. Kaniz Fatima and others v. FOP, and others".

6. No doubt, the CDA Ordinance, 1960, deals with the development of capital in specified areas for which CDA has been equipped with powers and duties in terms of section 11 of the Ordinance, for preparation of master plan and phased master program for development of capital site, which requires approval from Federal Government. In terms of section 12 of the Ordinance, the CDA authorities may pursuant to master plan and master program, call upon any local body or agency operating in the specified areas to prepare, in consultation with the authority, a scheme or schemes in respect of matters ordinarily dealt with by such local body or agency, which may relate to land use, zoning and land reservation; public buildings; industry; transportation and communications, highway, roads, streets, railways, aerodromes; tele-communications, including wireless, television, radio, telephone; utilization of water, power and other natural resources; community planning house slum clearance, amelioration; community facilities including water supply, sewerage, drainage, sewage disposal, electricity supply, gas supply and other public utilities; preservation of objects of places of historical or scientific interest or natural beauty; therefore, in order to manage all these functions the CDA authority can acquire the land in specified area in accordance with the procedure laid down in chapter IV of the CDA Ordinance, 1960, which is provided in detail under section 15 of the Ordinance. The acquisition of land has separately been explained in Chapter IV, section 22 to section 34 of the CDA Ordinance, 1960, which provides liability to acquisition; power to acquire land; land to be marked out measured and planned; enquiry and award of Deputy Commissioner, etc, even appeal and review has been provided to aggrieved persons.

2025 M L D 339

[Islamabad]

Before Mohsin Akhtar Kayani and Tariq Mehmood Jahangiri, JJ

Mst. Sania Batool---Petitioner

Versus

The State and another---Respondents

Criminal Misc. No. 1632-B of 2024, decided on 1st October, 2024.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 365-A, 292-A, 506(ii), 337, 170, 171, 342, 148 & 149---Aduction for ransom---Bail, grant of---Further inquiry---Allegation against the petitioner (female accused) was that she along with co-accused had abducted the complainant, gave him beating, made nude videos of him and also took Rs. ten lac as ransom---No recovery had been effected from the petitioner---No evidence was available regarding the call made by petitioner to the complainant on fateful day as mentioned in the FIR---No nude video of the complainant had been recovered by the Investigating Officer---No CCTV footages of the ATM mentioned in the FIR had been collected---No expert report regarding voice messages allegedly sent by the petitioner was available---Even Investigating Officer had not bothered to collect the evidence as to whether the SIM used in the recovered mobile phone was in the name of the petitioner or otherwise---Only evidence against the petitioner was that an amount of Rs. 50,000/- had been transferred through easypaisa in her account by the complainant---Petitioner was female having a suckling baby girl of four months who was also confined in judicial lockup with her---Tentative assessment of record showed that petitioner had made out a case of further inquiry as envisaged under Section 497(2), Cr.P.C---Bail petition was allowed, in circumstances.

Mst. Asiya v. The State and another 2023 SCMR 383; Mst. Ghazala v. The State and another 2023 SCMR 887; Tahira Batool v. The State and another PLD 2022 SC 764; Hajji Muhammad Nazir v. State 2008 SCMR 807; Jahanzeb and others v. State through A.G. Khyber Pakhtunkhwa Peshawar and another 2021 SCMR 63; Resham Khan and another v. The State through Prosecutor General Punjab, Lahore and another 2021 SCMR 2011; Manzoor and 4 others v. The State PLD 1972 SC 81 and Zaigham Ashraf v. The State and others 2016 SCMR 18 rel.

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

----S.497---Bail---Tentative assessment---Scope---Observations made in the bail order are tentative in nature, which should not affect the trial of case in any manner.

Sheraz Ahmed Ranjha for Petitioner.

Abdul Rehman Bajwa for Respondent No. 2.

Adnan Ali, DDPP, for the State.

Muhammad Afzal, Inspector.

Order

Tariq Mehmood Jahangiri, J.---Through the instant petition, the petitioner, seeks bail after arrest in case FIR No.918, dated 25.07.2024, offence under Sections 365-A, 292-A, 506(ii), 337, 170, 171, 342, 148, 149, P.P.C. registered at Police Station Shehzad Town, Islamabad.

1. It is alleged that the petitioner along with co-accused has abducted the complainant, gave him beatings, made nude videos of him and also took Rs.10,00,000/- as ransom, hence the instant FIR.

2. Learned Counsel for the petitioner / accused, inter alia, contends that there is no evidence available against the petitioner regarding the alleged offence; she has falsely been implicated in the case, hence is entitled for grant of bail.

3. Conversely, learned DDPP assisted by learned counsel for complainant has controverted the arguments advanced by learned counsel for the petitioner and states that sufficient evidence is available against the petitioner; she has committed a heinous crime; offence falls under the prohibitory clause of section 497, Cr.P.C., hence is not entitled for grant of bail.

4. We have heard the arguments advanced by learned counsel for the petitioner / accused, learned DDPP assisted by learned counsel for complainant and perused the record with their able assistance.

5. No recovery has been effected from the petitioner / accused; no evidence is available regarding the call made by her to the complainant on 14.07.2024, as mentioned in the FIR.

6. No nude videos of the complainant have been recovered by the I.O; no CCTV footages of the ATM mentioned in the FIR have been collected.

7. There is no expert report regarding voice messages allegedly sent by the petitioner; even I.O has not bothered to collect the evidence that whether the SIM used in the recovered mobile phone was in the name of the petitioner or otherwise. Only evidence against the petitioner is that an amount of Rs.50,000/- has been transferred through easypaisa in her account by the complainant.

8. The petitioner is female having a suckling baby girl of four months who is also confined in judicial lockup with her. It has been held by the Hon'ble Supreme Court of Pakistan in a case titled as "Mst. Asiya v. The State and another", (2023 SCMR 383) that:

"We have been informed that the petitioner has two children, one of which is a suckling baby girl of 17 months, who has been confined with her in jail. The other one is living with the grandmother. Learned counsel for the complainant could not deny this fact. In Mst. Nusrat v. The State (1996 SCMR 973) this Court has candidly held that "the suckling child of the petitioner kept in jail is undoubtedly innocent. He is kept in jail with mother obviously for his welfare. The concept of "welfare of minor" is incompatible with jail life. So, instead of detaining the innocent child infant in the jail for the crime allegedly committed by his mother, it would be in the interest of justice as well as welfare of minor if the mother is released from the jail."

1. It has been held by the Hon'ble Supreme Court of Pakistan while granting bail after arrest to the female accused involved in the cases falling under the prohibitory clause of section 497, Cr.P.C. that:

"It means that in cases of women accused etc. as mentioned in the first proviso to section 497(1), irrespective of the category of the offence, the bail is to be granted as a rule and refused only as an exception in the same manner as it is granted or refused in offences that do not fall within the prohibitory clause of section 497(1), Cr.P.C. The exceptions that justify the refusal of bail are the likelihood of the accused, if released on bail: (i) to abscond to escape trial; (ii) to tamper with the prosecution evidence or influence the prosecution witnesses to obstruct the course of justice; and (iii) to repeat the offence."

Reliance is placed on cases titled as "Mst. Ghazala v. The State and another", (2023 SCMR 887) and "Tahira Batool vs. The State and another", (PLD 2022 SC 764).

1. Apart from the above, it has been held time and again by the august Supreme Court that bail does not mean acquittal of accused but only change of custody from Government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever required to be produced. Reliance could be placed on case reported as "Haji Muhammad Nazir v. The State" (2008 SCMR 807).

2. As far as contention of the learned counsel that case of the petitioner squarely falls within the ambit of section 497(2), Cr.P.C. is concerned, the same is reproduced as under:-

497. When bail may be taken in cases of non-bailable offence.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

Perusal of the aforesaid provision reveals that intent of the legislature disclosing pre-condition to establish the word "guilt" against whom accusation is levelled has to be established on the basis of reasonable ground, however, if there exists any possibility to have a second view of the material available on the record then the case advanced against whom allegation is levelled is entitled for the relief in the spirit of section 497(2), Cr.P.C. Reliance in this regard is placed on a case titled as "Jahanzeb and others v. State through A.G. Khyber Pakhtunkhwa Peshawar and another" (2021 SCMR 63), 13. It has been held by the Hon'ble Supreme Court of Pakistan in a case titled as "Resham Khan and another v. The State through Prosecutor General Punjab, Lahore and another" (2021 SCMR 2011) that:

"It is well settled that object of trial is to make an accused to face the trial and not to _punish an under trial prisoner. The basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Every accused is innocent until his guilt is proved and benefit of doubt can be extended to the accused even at bail stage if the facts of the case so warrant. The basic philosophy of criminal jurisprudence is that the prosecution has to prove its case beyond reasonable doubt and this principle applies at all stages including pre-trial and even at the time of deciding whether accused is entitled to bail or not."

1. It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep the people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of bail after arrest granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run. Reliance is placed on the cases titled as Manzoor and 4 others v. The State (PLD 1972 SC 81) and Zaigham Ashraf v. The State and others (2016 SCMR 18).

2. Investigation in the case has been completed; the petitioner is a female accused having suckling baby and she is behind the bars since her arrest without any fruitful progress in the trial.

2025 M L D 454

[Islamabad]

Before Mohsin Akhtar Kayani, J

The State through Investigation Officer, Director of Intelligence and Investigation IR---Appellant

Versus

Said Jan Afridi and others---Respondents

Criminal Appeal No. 138 of 2023, decided on 12th August, 2024.

Anti-Money Laundering Act (VII of 2020)---

----Ss. 3, 4, 8 & 25---Income Tax Ordinance (XLIX 0f 2001), Ss. 192 & 192-A---Criminal Procedure Code (V of 1898), S.265-K---Money laundering---Investigation---Predicate offence---Intelligence and Investigation (I&I), Inland Revenue, status of---Appeal against acquittal---During the proceedings of the case, accused moved an application under S.265-K, Cr.P.C, for his acquittal, which was allowed---Validity---As per record, the Court was not in agreement with the mode and manner of initial order of attachment passed by the Trial Court without considering the details and application of law in is particular case rather the Court had mechanically processed the case on the so-called report of Investigating Officer without adverting to the facts that tax authorities had not yet concluded any of the questions in the case, neither threshold of prima facie Rs. ten million unpaid tax was visibly seen---Commissioner Appeal had annulled the amendment proceedings conducted by the Assessing Officer by declaring the same beyond his jurisdiction and all the additions made under S.111(1)(b) of the Ordinance, 2001, were also deleted---Such aspect left nothing in favour of Investigating Officer as well as the Court to proceed and exercise its jurisdiction under Anti-Money Laundering Act, 2010---Order impugned had been passed in terms of S.265-K, Cr.P.C and as such there was no cavil to the proposition that powers under S.265-K, Cr.P.C could be exercised at any stage of trial or proceedings---Even otherwise, when Court came to the conclusion at initial stage or middle stage of the proceedings or at the end of the evidence that the charge was groundless or there was no probability of accused being convicted of any offence, even prior to the framing of charge the Court had to pass the order by appreciating the concept of groundless charge---Even suo-moto powers could be exercised---Said provision had a special significance in the Cr.P.C but it was subject to satisfaction of the Court on the basis of available record or evidence that further proceedings in the trial might be a futile exercise and there was no probability of conviction which was apparent in the case; also where the primary requirement of charge was not fulfilled---Neither Investigating Officer was competent to investigate the matter in accordance with the required standard and at last the Income Tax Authorities had not yet declared the accused guilty of any charge in terms of Ss.192 & 192-A of the Income Tax Ordinance, 2001---Thus, entire superstructure made by the prosecution crumbled down and Trial Court had rightly acquitted the accused---Appeal against acquittal was dismissed, in circumstances.

Moulvi Fazul-Qader Choudhary v. Crown PLD 1952 Federal Court 19; Ch. Abdul Malik v. The State PLD 1968 SC 349; Chaudhry Shujat Hussain v. The State 1995 SCMR 1249; Sheikh Shahid Jamal v. National Accountability Bureau and others PLD 2021 Lah. 411; Muhammad Rafiq v. DG FIA, Islamabad 2023 PCr.LJ 38; Deputy Director Anti-Money Laundering v. Special Judge 2021 PCr.LJ 946; Anwar Khan v. State 2018 YLR 172; Rafi Ullah v. State 2019 PCr.LJ 1608; Justice Qazi Faez Isa v. The President of Pakistan and others PLD 2021 SC 1; Abdul Saboor v. Federation of Pakistan and others 2024 PTD 517; Taj International (Pvt.) Ltd. and others v. Federal Board of Revenue and others 2014 PTD 1807; Akhlaq Hussain Kayani v. Zafar Iqbal Kiyani and others 2010 SCMR 1835; Muhammad Akbar v. The State and others PLD 1968 SC 281; State v. Ashiq Ali Bhutto 1993 SCMR 523; Muhammad Khaliq Mukhtar v. The State PLD 1997 SC 275; Zahoor-ud-Din v. Khushi Muhammad 1998 SCMR 1840 and Ajmeel Khan v. Abdur Rahim PLD 2009 SC 102 rel.

Hafiz Ahsaan Ahmed Khokhar and M.Anwar, I.O. for Appellant.

Hafiz Munawar Iqbal for Respondents.

Date of hearing: 21st May, 2024.

Judgment

Mohsin Akhtar Kayani, J.---Through this Crl. Appeal, the appellant/State through I.O, Directorate of Intelligence and Investigation, IR has challenged the order dated 04.01.2023, passed by learned Judge Special Court (Customs, Taxation and Anti-Smuggling), Rawalpindi/Islamabad, whereby respondents were acquitted under section 265-K Cr.P.C., in complaint case No.03/2020, dated 22.07.2020, under sections 3, 4 and 8 of Anti-Money Laundering Act, 2010.

1. Brief facts referred in the instant appeal are that as per report under section 173, Cr.P.C. accused/respondents established a business in Dubai in the name and style of HEAVY EQUIPMENT TRANSPORT CO. and SAID JAN GENERAL TRADING CO, who returned back to Pakistan during the year 2013-2014. It is in the record that accused respondents have received remittances in their bank accounts amounting to Rs.64,14,280/- during Tax Year 2014 while they have claimed Rs.1,45,31,610/- in their replies. The difference of amount of Rs.81,17,330/- remained un-explained. This amount was required to be offered for taxation under Section 11(5) of the Income Tax Ordinance (ITO), 2001 but they failed to pay tax on the said income. The accused respondents have claimed Debt Receipts of Rs.106,996,657/- between Tax Years 2014 to 2017, however, they failed to provide any explanation regarding sources of income/nature of the said amount. Hence, this amount remained unexplained and chargeable to tax under Section 111(1)(a) of the Income Tax Ordinance, 2001. The accused respondents have also claimed various Interbank Transfers of Rs.7,781,698/- for Tax Years 2015 to 2017 and failed to put forth any explanation. This amount also remained un-explained and chargeable to tax under Section 111(1)(a) of the Income Tax Ordinance, 2001. The accused respondents have claimed amounts received on account of vehicles sold amounting to Rs.45,301,956/- between the years 2016 and 2017 but failed to furnish any documentary evidence/bank statements regarding sources/nature of transactions. This amount remained unexplained and chargeable to tax under Section 111(1)(a) of the Income Tax Ordinance, 2001. A detailed investigation report dated 06-07-2020 was prepared by one Suhail Abbas (Deputy Director) and referred the same to Chief Commissioner Inland Revenue. The report contains the details of 16 bank accounts of the Respondent (Said Jan Afridi) and the notices of 176(1)(b) of ITO, 2001 were sent to him to explain his sources of income from years 2014 to 2017. However, all the notices sent to Respondent regarding the explanation of true sources of income with allied documents, as to why respondent's case must not be treated under the provision of concealment of income tax evasion under section 111 of ITO, 2001 and why he must not be proceeded under AMLA, 2010, however, respondent failed to dispense with any explanation. In its report the Deputy Director finalized that Respondents have following un- explained/concealed income (Rupees):

| | | | --- | --- | | Tax Year | Net -un-explained/concealed income (Rupees) | | 2014 | 66,561,815/- | | 2015 | 84,884,527/- | | 2016 | 21,193,667/- | | 2017 | 59,392,803/- | | Total | 231,965,812/- |

During investigation accused respondents found involved in money laundering from predicate offences of false statement in verification under section 192 of the Income Tax Ordinance, 2001, concealment of income/furnishing inaccurate particulars of income under section 192A of the Income Tax Ordinance, 2001 as provided us XIIA of the Schedule-I of the Anti- Money Laundering Act, 2010. Accordingly, a complaint/Challan was submitted before the Court for trial.

1. Complaint case No.3/2020 dated 22.07.2020 was filed by the I.O Muhammad Anwar (I&I IR) against the Respondent and two others (his sons) under sections 192 and 192A of ITO as predicate offence and reproduced the above year wise breakdown of un-explained amount and sought permission to investigate the offences.

2. The I.O also forwarded and application under section 8 AMLA, 2010 in the complaint case No. 3/2020 before the learned Special Judge to attach the properties and freeze the bank accounts of the respondents. Pursuant to the above application of I.O/Muhammad Anwar, learned Special Judge (Customs, Taxation and Anti-Smuggling), Rawalpindi/ Islamabad granted permission to investigate the Respondents and froze the bank accounts and also attached the properties of the respondents vide order dated 22.07.2020. The I.O Muhammad Anwar sent notice under section 8 of AMLA, 2010 to the respondents on 28.07.2020.

3. Respondents filed petition under section 265-K, Cr.P.C. in the complaint case with the objection that 192 and 192A in the Schedule of AMLA has been added through SRO No. 425(I)/2016 dated 20.05.2016 which cannot take retrospective effect in terms of Article 12 of the Constitution of Islamic Republic of Pakistan, 1973. Therefore, the bank credits of 7.961 Million rupees based on IO's investigation report) for tax year 2017 were presumed as un-explained source of income on which the tax computed comes at Rs.1.388 Million, which is far below the threshold of Rs.10/- Million as an essential condition for predicate offence in terms of schedule of AMLA, 2010.

4. Pursuant to the application of respondent's under section 265-K, Cr.P.C. the learned Special Judge dismissed the application of the Respondents by observing that the criminal liability of the accused pertaining to the year 2017 will be determined after the recording of evidence and the instant matter is at the stage of faming of charge. Therefore, prima-facie sufficient material is available on record to frame the charge against the accused

5. Learned Special Judge (Customs, Taxation and Anti-Smuggling) charged the accused under sections 3, 4 and 8 AMLA, 2010 for predicate offences of false statements in verification under section 192 and concealment of income/furnishing inaccurate properties of income under Sections 192A of ITO, 2001 in the following manner:-

"I, Tariq Mahmood Zargham, District and Sessions Judge/Judge Special Court (Customs, Taxation and Anti-Smuggling). Rawalpindi/Islamabad do hereby charge you Said Jan Afridi, Said Fareed and Abubakar accused persons are as under:-

1. That you accused being taxpayer established a business in Dubai in the name and style of HEAVY EQUIPMENT TRANSPORT CO. and SAID JAN GENERAL TRADING CO. and returned back to Pakistan during the year 2013-2014. It is evident from record that you accused have received remittance in your bank account amounting to Rs.6,414,290/ during Tax Year 2014 while you have claimed Rs.14,531.610/- in replies. The difference amount of Rs.8,117,330/- remained unexplained. This amount was required to be offered for taxation under section 11(5) of the Income Tax Ordinance, 2001. You failed to pay tax on said income.

2. That you have claimed Debt Receipts at Rs. 106,996,657/ between Tax Years 2014 to 2017. However, you are failed to provide any explanation regarding sources / nature of the said amount. Hence this amount remained unexplained and chargeable to tax under section 111(1)(a) of the Income Tax Ordinance, 2001.

3. That you have claimed various Interbank Transfers at Rs.7,781,698/- for Tax Years 2015 to 2017 and failed to put forth any explanation. This amount remained unexplained and chargeable to tax under section 111(1)(a) of the Income Tax Attested to be Ordinance, 2001.

4. That you have claimed amounts received on account of vehicles sold amounting to Rs.45,301,956/- between Tax Years 2016 and 2017 but failed to furnish any documentary evidences/bank statements regarding sources/nature of transactions. This amount remained un-explained and chargeable to tax under section 111(1)(a) of the Income Tax Ordinance, 2001.

Thus, you accused persons were involved in money laundering as well as you accused persons have committed an offence punishable under sections 3, 4 and 8 of the Anti- Money Laundering Act, 2010 from predicate offences of false statement in verification under section 192 of the Income Tax Ordinance, 2001, concealment of income / furnishing inaccurate particulars of income under section 192A of the Income Tax Ordinance, 2001 as provided under section XIIA of the schedule-1 of the Anti-Money Laundering Act, 2010, which is within the cognizance of this court.

And I hereby direct that you accused persons be tried by this court for the said charge."

1. Total 19 PWs' statements were recorded by the Special Judge including Muhammad Anwar/I.O/PW-18 and Suhail Abbas (Deputy Director-IR/PW19. In his statement the I.O/PW-I8 conceded that the audit of respondents pertaining to years 2014-2017 is under process and not yet concluded as per his personal knowledge. Also said that the report he has submitted under section 173 Cr.P.C. containing his signatures has nowhere mentioned income tax evasion.

2. Respondents again filed a petition under section 265-K, Cr.P.C. before the Special Judge with the grounds that the I.O Muhammad Anwar who investigated the matter and exercised the powers under section 111 of ITO 2001 has alleged that the assets provisionally attached were required through concealed taxable income for the year 2014-17 are:-

| | | | --- | --- | | Tax Year | Net -un-explained/concealed income (Rupees) | | 2014 | 62,561,815/- | | 2015 | 43,734,527/- | | 2016 | 7,913,667/- | | 2017 | 7,960,803/- | | Total | 122,170,812/-- |

Respondents again objected that Sections 192 and 192A of ITO, 2001 in the Schedule of AMLA have been added through SRO No. 425(I)/2016 dated 20.05.2016 which cannot take retrospective effect in terms of Article 12 of the Constitution of Islamic Republic of Pakistan, 1973. Therefore, the bank credits of 7.961 Million rupees based on I.O's investigation report for tax year 2017 were presumed as un-explained source of income on which the tax computed come at Rs.1.388 Million, which is far below the threshold of Rs.10/- Million as an essential condition for predicate offence in terms of schedule provided in AMLA, 2010. Further objected that the Inspector has no power to impose liability under sections 111, 230 and 209 of ITO, 2001. Also, as per the SRO No.115(I)/2015, dated 09.02.2015, which was superseded by SRO No. 272(I)/2021 Dated 02.03.2021 the office of the Director General (Intelligence and Investigation, Inland Revenue) has been empowered specifically to exercise and perform functions of ITO, 2001, specified in column No.4 of above referred SROs. Under the said SROs the Inspector is not empowered to impose liability of Section 111 of ITO, 2001. Therefore, the accused be acquitted.

1. The Special Judge reproduced the details from the report under Section 173, Cr.P.C. submitted by the I.O and held that the 2014-2016 period is excluded and whereas the tax for year 2017 is concerned the same does not meet the threshold of tax amount of 10 Million rupees. The Special Judge relied on the judgment of IHC in W.P. No. 3095/2021 (Altaf Ahmed Gondal v. FOP and others) that to attract the offence of money laundering there has to be a nexus of the proceeds of crime with one of the predicate offences described under the schedule of the Act, 2010 and in case proceeds of crime are not relatable to the predicate offences then offence under the Act of 2010 would not be attracted. Learned Special Judge accepted the petition of respondents under Section 265-K, Cr.P.C. and acquitted the accused from the charge. Hence, this appeal.

2. Learned counsel for the appellant/State contends that powers exercised under section 265-K, Cr.P.C. is not permissible at this stage, especially when 19 PWs have been recorded and trial was likely to be concluded in near future; that learned trial court has totally ignored that the accused have given false statement while submitting Returns/wealth statements, concealed income where tax sought to be evaded is more than Rs..10/- Million, which brings the cases of accused/respondents under AMLA, 2010 and ITO, 2001 and whereas the same could only be ascertained through documentary evidence in the final judgment. The interbank transfer of Rs.7,781,698/- in the tax years 2015 to 2017 and respondents/accused failed to put any explanation, therefore, this amount remained un-explained and chargeable to tax under section 111(1)(a) of the ITO, 2001. The respondents have not been able to explain their sources of income, receipts against the vehicles sold, and debt receipts, thus after investigating the source of income, appellant reached to the conclusion that respondents have been committing the offence of money laundering under section 3 of the AMLA, 2010 through commission of predicate offence of tax evasion under section 192A and false statement in verification under section 192 of the section XIIA of the Schedule-I of Anti-Money Laundering Act, 2010 without paying due income tax thereon concealed income; that learned trial court was not justified in relying on Article 12 of the Constitution of Islamic Republic of Pakistan, 1973 by holding that AMLA, 2010 was not applicable for the tax years 2014, 2015 and 2016 as Section XIIA was inserted in Schedule-I to AMLA, 2010 on 20.05.2016, whereas the accused filed income tax returns for 2014, 2015 and 2016 on 07.09.2018 which is posterior to the date 20.05.2016, which squarely falls within the period when Sections 192 and 192A of the ITO, 2001 were declared as predicate offences; that learned trial court was not justified in relying on judgment passed by this Court in W.P No. 3095/2021 titled Altaf Ahmad Gondal v. Federation of Pakistan necessitating nexus between predicate offence and proceeds of crime, whereas Section 3 of the AMLA, 2010 has a broader scope; that trial court has ignored the material evidence on record and acquitted the respondents despite overwhelming evidence including authorization available from Directorate of I&I, IR, which fully covers the investigation aspect of agency, especially when the tax evaded amount comes to Rs.122,100,000/-.

3. Conversely, leaned counsel for the respondents/accused contends that the impugned order is self-explanatory and as such no illegality has been demonstrated by the appellant/State, especially to the cut of date of offence under sections 192 and 192A of ITO, 2001, which was included in the Schedule-I of the AMLA, 2010 and notified on 20.05.2016 and prior to that the same could not be covered under AMLA, 2010, therefore, any proceedings conducted by the trial court or I.O are beyond the authority and resultantly, trial court has rightly concluded by acquitting the respondents, even the threshold established the prima-facie offence of money laundering which is Rs.10/- Million is not made out; that till date tax authorities have not calculated any evasion of tax against the respondents.

4. Arguments heard, record perused.

5. Perusal of record reveals that complaint case No.03/2020 dated 22.07.2020 was filed by the Directorate of Intelligence and Investigation-IR, against the Said Jan Afridi and his sons Said Fareed and Abubakar under Section 21(2) of the AMLA, 2010 before the Special Judge (Customs, Taxation and Anti-Smuggling), Rawalpindi/Islamabad in the alleged offences in terms of Sections 192, 192A of the ITO, 2001 read with Sections 3, 4 and 8 of the AMLA, 2010 for the tentative tax evasion of Rs.116/- Million with the allegation that respondent No.1/Said Jan Afridi who owned several businesses and declared nominal income, whereas respondents Nos.2 and 3 real sons of respondent No.1 own properties and maintain bank accounts in their names are believed to be from crime proceeds. In the complaint, State alleged that the accused are concealing income, furnishing inaccurate particulars of income and acquiring assets from proceeds of crime by committing predicate offences of tax evasion and concealing taxable income, under the AMLA, 2010. It has been highlighted in the complaint that respondent No.1 registered on tax roll on 29.01.2018 and failed to declare any business activity and the year wise break down of the discrepancies / un-reconciled amounts found in the records submitted/declared by the accused are as follows:-

| | | | --- | --- | | Tax Year | Net -un-explained/concealed income (Rupees) | | 2014 | Rs. 66,561,815/- | | 2015 | Rs. 84,884,527/- | | 2016 | Rs. 21,193,667 | | 2017 | Rs. 59,392,803/- | | Total | Rs. 231,965,812/- |

1. As per the stance of, I.O irreconcilable amounts are far greater than Rs.10/- Million and the complainant has reasonable grounds to believe that the accused are in violation of Sections 192, 192A of the ITO, 2001, read with Sections 3, 4 and 8 of the AMLA, 2010, hence, charges have to be initiated. The trial court after receiving the complaint along with application for attachment of bank accounts and properties under section 8 of the AMLA, 2010 attached all the bank accounts and properties of the respondents and passed the order dated 22.07.2020 in which I.O was permitted for investigation and attached the accounts temporarily, thereafter extended the attachment of properties and accounts through various orders. Notice under section 9(1) of the AMLA, 2010 was issued by the I.O by referring the income and record including the remittances of the tax years 2014, 2015, 2016 and 2017 respectively. After submission of final report under section 173, Cr.P.C. charge was framed on 06.01.2022 by the trial court to which respondents/accused pleaded not guilty and claimed trial. 19 PWs have been recorded including the I.O Muhammad Anwar/PW-18, except PW-18 majority of the witnesses are private persons or bank officials, who produced bank records and record of business transactions of respondents/ accused during tax years 2014 to 2017.

2. Before proceeding with the factual aspect of the case, I have gone through the procedure provided under the AMLA, 2010 as to how and under what circumstances the jurisdiction under this law has to be exercised. On plain reading of this law, it appears that investigation in terms of Section 9 by the I.O should be started not later than seven (07) days of order and attachment made under subsection (1) of Section 8 whereas attachment of property in terms of Section 8(1) could only be initiated on the request of I.O, "on the basis of report in possession of I.O received from the concerned investigating agency by order in writing, with prior permission of the Court and thereafter the properties were provisionally attached if the I.O reasonably believes to be the properties involved in money laundering, therefore, the very initiator of the case under AMLA, 2010 with reference to Sections 192 and 192A of the ITO, 2001 is the root of which the intelligence and investigation-IR can proceed only.

3. It has settled that Sections 192 and 192A of the ITO, 2001 were added in the Schedule-I of the AMLA, 2010 for the first time vide SRO No.425(I)/2016, dated 14.05.2016 to the following effect:-

[Section XIIA The Income Tax Ordinance, 2001

192. Prosecution for false statement in verification-where tax sought to be evaded is ten million rupees or more

192A. Prosecution for concealment of income-where tax sought to be evaded is ten million rupees or more

These two specialized crimes have been enlisted in the Schedule-I with reference to Section 2(XXVI) that are predicate offences.

1. The term reasonable believes or reasonably ground for believing is to be considered in terms of judgment rendered by the Supreme Court of Pakistan reported as PLD 1952 Federal Court 19 (Moulvi Fazul-Qader Choudhury v. Crown), whereby it was held that:-

A distinction between the expressions 'reasonable grounds for believing' and 'reasonable suspicion' and interpreted the expression. It has held that a certain amount of suspicion is caused by the conduct of a person but the word "believe" is a much stronger word and, moreover, it would require that the belief must be a reasonable one.

In the case titled PLD 1968 SC 349 (Ch. Abdul Malik v. The State) the Supreme Court of Pakistan has explained the expression as follows:

"Reasonable grounds" is an expression which connotes that the grounds be such as would appeal to a reasonable man for connecting the accused with the crime with which he is charged, "grounds" being a word of higher import than "suspicion". However, strong a suspicion may be it would not take the place of reasonable grounds. Grounds will have to be tested by reason for their acceptance or rejection. The reasonableness of the grounds has to be shown by the prosecution by displaying its cards to the Court, as it may possess or is expecting to possess as demonstrating evidence available in the case both direct and circumstantial."

Supreme Court of Pakistan in another case reported as 1995 SCMR 1249 (Chaudhry Shujat Husain v. The State) has observed and held as follows:

"The term "reason to believe" can be classified at a higher pedestal than mere suspicion and allegation but not equivalent to prove evidence. Even the strongest suspicion cannot transform in "reason to believe." In Nisar Ahmad's case the criteria laid down seems to be that where some tangible evidence is available against the accused which, if left unrebutted, may lead to the inference of guilt."

Division Bench of Lahore High Court, Lahore in the case reported as PLD 2021 Lahore 411 (Sheikh Shahid Jamal v. National Accountability Bureau and others) dilated upon the term reasonable grounds to believe held that:-

21. Halsbury's Laws of India (Volume 5(1) explains:

"A person is said to have 'reason to believe' a thing, if he has sufficient cause to believe that thing but not otherwise. The term `reason to believe' is not a matter of purely subjective satisfaction. The belief must be of an honest and reasonable man. It must be held in good faith and this faith must not be merely pretense. There must be relevant material to sustain such a belief and must not be based on mere suspicion, gossip or rumour. 'Reason to believe' suggests that there must be prima facie material even if such material is not precise or absolutely certain without any possibility of doubt. However, the belief must be that of an honest and reasonable person based upon relevant materials and circumstances ... Suspicion or doubt may not be raised to the level of 'reason to believe'. Whether there was sufficient cause to have reason to believe is a question of fact."

1. In AIR 1972 AP 318 (K. Munivelu v. The Government of India and others) the Andhra Pradesh High Court held that "reasons to believe' means coming to a final conclusion on the basis of the information that a thing, condition, statement or a fact exists."

2. The importance of distinguishing between "reasonable suspicion" and "reasonable grounds to believe" lies in the fact that they set different standards for judicial assessment of whether a legal threshold has been met in a particular case. In the former it suffices if the concerned person thinks that there is a possibility, which is, more than fanciful, that the relevant facts exists. Da Silva v. Regina, [2006] 4 All. ER 900.

On the other hand, the standard applicable to "reasonable grounds to believe" has both an objective and subjective facet. "The person concerned must not only subjectively believe that the standard has been met, but the grounds must be objectively justifiable in the sense that an ordinary prudent person in his place would conclude that there were indeed reasonable grounds." Ronald Percy Storrey v. Her Majesty the Queen, [1990] 1 S.C.R. 241.

1. Hence, the Investigation Officer of the Intelligence and Investigation Directorate has to demonstrate prima facie on the basis of some incriminating material with certainty and without possibility of any doubt that the income or the property of taxpayer or non-taxpayer is based upon the parameters of proceeds of crime and the accused has concealed the said income in order to evade the tax or submitted false declaration, which is otherwise within the parameters of Sections 192 and 192A of the I.T.O, 2001, therefore, heavy onus has been shifted upon the I.O to justify the reasonable grounds in such type of cases of Anti-Money Laundering.

2. The scheme of law gave rise to a technical procedural requirement and extending powers to intelligence and investigation I&I-IR in terms of Section 24 of the AMLA, 2010 for investigation and appointment of I.Os but the primary requirement is report initiated by the I.O which is to be made basis of entire superstructure under AMLA, 2010.

3. In my humble estimation, I.O before preparing a report has to go through each and every aspect of tax record to collect such data from where the minimum requirement of offences under sections 192 and 192A of the ITO, 2001 is visibly seen. Section 192 of the ITO, 2001 deals with the prosecution for statement in verification of any return or in other documents furnished to the I.O under ITO, 2001 which is false and the person who is furnishing verification knows or believes to be false, therefore, sentence of three years imprisonment and fine has been provided. Similarly, Section 192A deals with the prosecution for concealment of income and such aspect is determined during the assessment of tax by the tax authorities in tax regime provided under ITO, 2001, concealment of income under Section 192A includes suppression of any income or amount chargeable to tax claiming of any deduction for any expenditure not actually incurred or any act referred to in subsection (1) of Section 111 of ITO, 2001, un-explained income or assets defined as follow:-

111. Unexplained income or assets.- (1) Where-

(a) any amount is credited in a person's books of account;

(b) a person has made any investment or is the owner of any money or valuable article; ¹[]

(c) a person has incurred any expenditure 2[; or]

3[(d) any person has concealed income or furnished inaccurate particulars of income including-

(i) the suppression of any production, sales or any amount chargeable to tax; or

(ii) the suppression of any item of receipt liable to tax in whole or in part,]

and the person offers no explanation about the nature and source of the amount credited or the investment, money, valuable article, or funds from which the expenditure was made [suppression of any production, sales, any amount chargeable to tax and of any item of receipt liable to tax] or the explanation offered by the person is not, in the Commissioner's opinion, satisfactory, the amount credited, value of the investment, money, value of the article, or amount of expenditure [suppressed amount of production, sales or any amount chargeable to tax or of any item of receipt liable to tax] shall be included in the person's income chargeable to tax under head "Income from [Other Sources"] to the extent it is not adequately explained

[Provided that where a taxpayer explains the nature and source of the amount credited or the investment made, money or valuable article owned or funds from which the expenditure was made, by way of agricultural income, such explanation shall be accepted to the extent of agricultural income worked back on the basis of agricultural income tax paid under the relevant provincial law.)

1. We look into the mode and manner in which prosecution has been initiated in such type of cases, it is necessary to highlight the following factors on the part of accused:-

i. the income tax record for the particular years i.e. return after 2016 onwards to be considered only;

ii. such tax record prima-facie reflects the inaccurate particulars and concealment of income or unexplained income or assets in which a person/accused is made in investigation or the owner in main or valuable article, incurred any expenditure, suppression of any income, sales for any amount chargeable to tax;

iii. the person to whom charge has satisfactorily been explained, in the tax regime and commissioner has given an information that those suppressed concealed income, items, articles are liable to tax;

iv. all those details provided to the tax authorities in terms of tax return or any other document has been verified by the accused persons and those particular documents furnished in this regard are found to be false on the basis of verification report by the I.O.

1. The above referred requirements have to be appreciated by the I.O and he should start investigation in terms of Section 9 of AMLA, 2010 after the attachment by the Court in terms of Section 8 of AMLA, 2010. Investigation Officer was further required to sought permission from the court in terms of Section 9A of AMLA, 2010 to use such techniques including undercover operations, intercepting communications, assessing computer system and controlled deliver for investigation of offences of money laundering, associated predicate offences and financing of terrorism within a period of sixty days, therefore, on the first glance this court is of the view that in order to proceed in terms of offences under sections 192 and 192A ITO, 2001, which are basis of the offence charged in this case, the threshold requires two separate satisfaction levels before proceeding in the trial for offence under sections 3 and 4 of the AMLA, 2010:-

i. firstly the income tax authorities were satisfied that assets were concealed or income remained unexplained for which the income tax authorities have initiated the proceedings under ITO, 2001 by exercising the powers in terms of Section 176 of ITO, 2001 where Commissioner may by notice in writing, require any person, whether or not liable for tax under this Ordinance to furnish the Commissioner or an authorized officer, any information relevant to any tax leviable;

ii. Similarly, the Commissioner may arrange a special audit panel to obtain any information, require production of any record, on which required information is stored and examined the premises or impound any account, document, etc. which is necessary for examination purposes and prosecution;

iii. The Commissioner may call for any record or document including books of accounts for the purpose of audit in terms of Section 177 of the ITO, 2001 and after completion of audit obtain taxpayer explanation on all the issues raised in the audit or audit observations, findings and proceed accordingly;

iv. All tax returns are to be treated as assessment order in terms of Section 120 of the ITO, 2001, which were furnished by any person having taxable income for that tax year subject to the amendment of assessment in terms of Section 122 of the ITO, 2001 where further explanation, opportunities and show-cause notices have been envisaged before amending the assessment order if the same is erroneous or so far it is prejudicial to the interest of revenue on the basis of any definite information and such re-assessment or amendment could not be conclusively settled unless the taxpayer has been provided an opportunity of being heard;

v. All the assessment orders or amendment in assessment is subject to revision under sections 120A, 120B, 124A the appeals to Commissioner in terms of Section 127 and appeal to the Appellate Tribunal Inland Revenue in terms of Section 131 of the ITO, 2001.

1. In the light of above parameters, it has clearly been established in the scheme of law that income tax regime shall be satisfied at-least to the extent of minimum requirement before proceeding against any person, who withholds the tax or conceals income or gives inaccurate information or false declaration and when this process has been thrashed out by the ITO, Commissioner Appeal and Appellate Tribunal Inland Revenue, the question of disputed facts stand resolved from all angles and these orders have disclosed the factors of concealment of income, inaccurate information, avoidance of leviable income by any person, tax evasion and submission of false document or proves providing false verification, if all or any of these factors were demonstrated, then the case in terms of Sections 192 and 192A of ITO, 2001 has prima-facie been made out and those tax authorities should have disclosure to the person who was found involved but these factors are to be proceeded in terms of Sections 192 and 192A of the ITO, 2001 failing which minimum requirement for gathering information for initiation of proceedings under AMLA, 2010 is not readily available to the I.O as those requirements have to be demonstrated in the report of investigation agency or I.O in terms of Sections 8 and 9 of AMLA, 2010.

2. Now adverting towards the second threshold which deals with the predicate offences in terms of Section 2(xxvi) of AMLA, 2010, every offence specified in Schedule-I of the Act is a "predicate offence" but the other requirements of Section 3 of offence of money laundering of AMLA, 2010 is also key factor to be considered if a person is charged for the offence under section 3 of the AMLA, 2010 at-least it has to be demonstrated prima-facie before charging the person that he acquires, converts, possess, uses or transfers property, knowing or having reason to believe that such property is proceeds of crime and that person is involved in concealing and disguising the true nature, origin, location of those properties or he participates in, associates, conspires to commit, attempts to commit, aids, abets, facilitates in proceeds of crime then offence of money laundering come into existence. The predicate offence at one angle is a key factor in the offence of money laundering and the second factor is the proceeds of crime including the properties, economic benefits which has been generated directly or indirectly from the commission of predicate offence. Ordinarily, the examples given in proceeds of crime are with reference to narcotics or terrorism financing concept but in the present era this aspect has been changed from these two particular classes, therefore, prosecution is under obligation to at-least demonstrate that the properties, assets, money or amount which is visibly seen from the tax record in terms of ITO, 2001 was made out of other offence and those dirty money was required to conceal for its source, fake transaction, misrepresented, book keeping accounts, etc. then it becomes offence of money laundering.

3. Now adverting towards the question of onus to prove, at first the burden of proof regarding the scheduled offence (tax evasion in our case) is on the prosecution, the prosecution has to prove that the assessee has evaded the tax and deliberately hide his income/assets which are taxable. If the assessee fails to confer reasonable explanation and there is prima facie reasonable doubt that the unexplained money is proceeds of crime then the assessee is accused of money laundering and the onus shifts on the accused to prove that he/she is not involved in money laundering. No one can be directly or at first be accused of money laundering for having unexplained amount or banking transactions unless given a chance to explain the source of income under 176 (1)(b) of ITO, 2001. In such situation the burden of proof lies on the accused. Reliance has been placed upon 2023 PCr.LJ 38 Islamabad (Muhammad Rafiq v. DG FIA, Islamabad).

4. Above mentioned predicate offences of 192 and 192A (scheduled offences of the AMLA), all matters connected therewith or incidental thereto are exclusively triable by learned Special Judge (Customs, Taxation and Anti-Smuggling). The question of jurisdiction to try the matters of customs, taxation and anti-smuggling the jurisdiction rests with the Special Judge and not with the Sessions Judge. AMLA being the special law has overriding jurisdiction as defined under Section 39 of AMLA and Section 20 of AMLA under proviso (a) says that if the predicate offence is triable by any Court other than the Court of Session, the offence of money laundering and all matters connected therewith or incidental thereto shall be tried by the Court trying the predicate offence. Reliance has been placed upon 2021 PCr.LJ 946 Lahore (Deputy Director Anti Money Laundering v. Special Judge) and 2023 PCr.LJ 38 Islamabad (Muhammad Rafiq v. DG FIA, Islamabad).

5. After giving the opportunity to the assessee to give detailed explanation regarding the unaccounted and undeclared amount in his/her bank account and in the banking transaction, if the assessee couldn't dispense explanation and the I.O has reasonable apprehension that the money/amount is the proceeds of crime and has been generated from illicit means or from a criminal activity then the investigation under Section 9 AMLA, 2010 will be commenced. An investigation mechanism has separately been settled in Section 9 of the Act, as to how and under what circumstances seizure of property could be made, and a prior notice is also required to be issued to the concerned person to indicate his source of income, earning or assets, out of which or by means of which he had acquired the property in question or any other relevant information required in such type of investigation.

6. As it has been clarified already that under AMLA, 2010 the Special Court (Customs, Taxation and Anti-Smuggling) has the jurisdiction to try the matter of scheduled offences under Schedule-I of AMLA, 2010. By virtue of proviso (a) of Section 20 AMLA which says:-

Provided (a) where the predicate offence is tri-able by any court other than the Court of Session, the offence of money laundering and all matters connected therewith or incidental thereto shall be tried by the Court trying the predicate offence, and

1. All the matters connected therewith or incidental thereto are exclusively tri-able by learned Special Judge (Customs, Taxation and Anti-Smuggling). As per Section 20 (1) proviso (a) of the "AMLA" reproduced above, the learned Special Judge (Customs, Taxation and Anti-Smuggling) has exclusive jurisdiction to try the offences of the "AMLA" i.e. predicate offences (scheduled offences of the AMLA), relating to tax evasion, all matters connected therewith or incidental thereto as held in Deputy Director Anti Money Laundering case Supra.

2. There still exists a disconnect between Tax evasion and money laundering. There is no provision in ITO and AMLA that simultaneously declares any money, not accounted for or not considered by the assessee as taxable income, to be a laundered money. The accused has to prove first that the money is not proceeds of crime and they are not involved in any illicit criminal activity for making that money. As the money comes from a legitimate source but not on tax net and the assessee is not paying tax from that taxable income, it cannot be declared as laundered money. Unless the ingredients of money laundering are not fulfilled completely, the case of Section 3 of AMLA cannot be made out. As in 2018 YLR 172 (Anwar Khan v. State) Peshawar High Court has held that simply possessing currency is not illegal unless it can be demonstrated that the money was obtained from illegal activities. Moreover, in the case of 2019 PCr.LJ 1608 (Rafi Ullah v. State) Lahore High Court held that the phrase "proceeds of crime" in Section 3 of the AMLA, 2010 refers to money or property derived or obtained directly or indirectly as a result of criminal activity Therefore, to establish an offence under Section 3 of AMLA, 2010, it must be shown that the money or property in question originates from the commission of a crime. If this cannot be proven, Section 3 does not apply.

3. In the recent judgment of the Apex Court PLD 2021 SC 1 (Justice Qazi Faez Isa v. The President of Pakistan and others) it is held that;

"It may be noticed from a reading of both Sections 2 and 3 that a necessary element of the offence of money laundering is the commission of a predicate offence. The execution of this offence gives birth to the proceeds of crime, the movement of which attracts the criminal conduct of money laundering. Therefore, without the commission of a predicate offence there can be no offence of money laundering. However, not every statutory violation is a predicate offence. AMLA recognizes this by setting out in its Schedule a list of statutory offences that constitute a predicate offence for the purposes of money laundering.

1. If the properties/business etc. were acquired before inclusion of Sections 192 and 192A of the Income Tax Ordinance became predicate offences by virtue of their inclusion in Schedule-I of the Act then it does not come within the purview of the Directorate (I&I) for the reason that the Act has no retrospective operation. It is a generally accepted principle of constitutional law that there is no prohibition on the Parliament to make retrospective legislation particularly where such an intention is expressly or impliedly clear from the text of the statute. In legislation creating penal consequences in respect of actions that occurred in the past, however, an exception is created by Article 12 of the Constitution which deals with protection against retrospective punishment and states that no law shall authorize the punishment of a person for an act that was not punishable by law at the time of the act or for an offence by a penalty greater than, or of a kind different from. The penalty prescribed by law for that offence at the time the offence was committed. In case reported as PTD 2024 Lahore 517) (Abdul Saboor v. Federation of Pakistan and others) it is held by the Lahore High Court that:-

It has already been stated that one of the purposes of the Act is to prevent money laundering and to attach/confiscate the properties generated from the proceeds of crime. The offence of money laundering, as noted above, is co-related with the proceeds of crime which has its genesis in the predicate offence. The commission of a predicate offence is a prerequisite for proceedings under the Act to commence before the court. In other words, the proceeds of crime can only materialize once a predicate offence is committed. The Act is a penal statute and, therefore, it can have no retrospective operation by virtue of Article 12 of the Constitution. Based on this, any proceedings commenced under the Act cannot sustain in respect of a transaction which crystallized prior to the introduction of Sections 192, 192A, 194 and 199 of the Income Tax Ordinance as predicate offences through amendment made in Schedule-I of the Act on 20.05.2016 the punishment prescribed for the offence under the Act does not relate to the commission of the predicate offence rather it is the offence of laundering that has been made punishable. As such, the date of the commission of the predicate offence is not material. The offence of money laundering that can be proceeded under the Act must be committed after the Act came into force or inclusion of the predicate offence in Schedule-I.

Further asserted that transactions entered into prior to insertion of the offences under the Income Tax Ordinance in Schedule-I of the Act are protected by Article 12 of the Constitution has already been answered in affirmative by this Court.

1. The scheme of law provided in I.T.O, 2001 viz-a-viz Anti-Money Laundering Act, 2010 if placed in juxtaposition, it appears that the criminal prosecution under tax laws by virtue of part XI from Sections 191 to 200, the legislature has criminalized the tax evasion, making false or misleading statements, non-compliance with notice of prosecution, offshore tax evasion, obstructing income tax authority for abatement and offences by companies and associations of persons. In order to prosecute any person under this Ordinance within the framework of I.T.O, 2001, I.T.O regime has to be activated at the first instance in order to find out the minimum threshold through assessment of tax. The role and character of an adjudicator in assessing the tax liability and of a special judge in convicting the tax evader are distinct and entail different sets of procedures and evidentiary standards. No doubt criminal and civil proceedings can co-exist and proceed side by side, in cases where the subject matter of both the proceedings is so closely interrelated, so that the outcome of the civil proceedings can have a material bearing on the criminal proceedings and in this regard, this Court has been guided with the principle settled in 2014 PTD 1807 [Lahore High Court] (Taj International (Pvt.) Ltd. and others v. Federal Board of Revenue and others). "A safer course to adopt is to stay the criminal proceedings till the finalization of the civil matter". Reliance is placed upon 2010 SCMR 1835 (Akhlaq Hussain Kayani v. Zafar Iqbal Kiyani and others), PLD 1968 SC 281 (Muhammad Akbar v. The State and others). The judgment of Taj International supra has also discussed the criminalization concept in tax regime and rightly held that the prosecution should have been initiated on the basis of information and sufficient material, but on plain reading of the provisions of AMLA, 2006 read with I.T.O, 2001, whereby wide discretion has been extended to the inquiry/investigation Officer to proceed further after collection of certain record and material without waiting for decision by the tax hierarchy without conclusion of assessment orders up to Income Tax Appellate Tribunal, which is the final adjudication authority to determine the factual aspect, therefore, the principle settled in Taj International supra, whereby Para-25, 26 and 27 of the said judgment are as under:-

2. As a conclusion, we once again reiterate that civil and criminal proceedings can run independently and simultaneously or otherwise. The purpose and objective of criminalizing tax fraud and tax evasion is retribution and deterrence which is achieved through punishment or fine or both. If the law, however, goes further and criminalizes recovery of tax in addition to retribution and deterrence, then tax assessment has to take place first under the provisions of the Act. In this background the term "shall be further liable" re-appearing several times in section 33 of the Act holds a chronological significance i.e., that criminal prosecution follows adjudication and assessment of tax under section 11 of the Act.

26. Even if the criminal prosecution under the present scheme of the Act is initiated after assessment of tax under section 11 as discussed above, the constitutionality of hurriedly invoking section 37A on the basis of material evidence requires consideration. Material evidence must be credible and definite if it is to deprive a citizen of his constitutional protection and safeguards under Articles 4 (due process), 9 (human liberty), 10A (fair trial) and 14 (human dignity). Setting in motion of the criminal prosecution cannot be left in the hands of any officer of the Inland Revenue, especially when the said Officers are under an obligation to recover the tax and meet tax targets before the close of the financial year set by the FBR. The process of initiation of criminal prosecution must comply with the requirement of due process and fair trial. The material evidence collected under section 37A needs to be credible and can best pass the test of fair trial and due process if it is an outcome of an inquiry or investigation envisaged under the proviso to section 25(2) of the Act. The outcome of any such inquiry and investigation must be placed before an independent forum like the Directorate General (Intelligence and Investigation), Inland Revenue established under section 30A of the Act to first review the inquiry and investigation and the material evidence and then proceed under the law. Anything short of this process will not only lead to persecution of the tax payers, it will also make a mockery of the fundamental right of fair trial.

1. The other issue is the choice of opting for criminal proceedings against a particular taxpayer and letting go of the other. This poses a problem and amounts to vesting unstructured and unregulated power in the hands of the department, once again threatening the sanctity of fair trial. Any such unguided and uncontrolled exercise of power will not withstand the constitutional test of fairness and equality under Article 25 of the Constitution. A more wholesome, transparent and standardized system needs to be evolved by the FBR to avoid this unconstitutionality.

2. Conclusion for prosecuting tax evasion as money laundering:-

i. If person has not declared his taxable income fully or not on tax net and evading tax deliberately, firstly the Commissioner, under Section 176(1)(b) of ITO, 2001, issues a notice requiring the person to explain the source of any unexplained or unaccounted money.

ii. The tax authority under tax regime provided in I.T.O, 2001 shall declare the accused prima-facie guilty of tax evasion or submission of false document, statement during the course of proceedings, charged for tax liability, which is the key requirement of Sections 192 and 192A of ITO, 2001, where-after Inquiry/ Investigation under AMLA should be initiated on the recommendation of DG I&I-IR and subsequently the accused shall be prosecuted in accordance with law.

iii. The person/accused must provide satisfactory evidence that the money in question is not proceeds of crime but legitimate income that was not declared for taxation.

iv. If the accused fails to provide a satisfactory explanation, it leads to the suspicion of money laundering. The onus shifts on the accused to prove that the money is not laundered money or property involved is not proceeds of crime.

v. Upon failure to provide a satisfactory explanation, the investigation under Section 9 of AMLA is commenced. This involves determining if the unexplained funds are indeed proceeds of crime.

vi. A separate investigation has to be conducted by the investigating agency as defined in Section 2(xviii) of AMLA, 2010.

vii. Under AMLA, 2010, burden of proof relating to proceeds of crime involved in money laundering is on the accused, whereas the burden of proof in the scheduled offences is on the prosecution.

viii. Trials for offences of tax evasion and money laundering are conducted, with the Special Judge (Customs, Taxation, and Anti-Smuggling) having exclusive jurisdiction.

ix. If the accused is acquitted of the predicate offence, the money laundering charges may not hold, as established in various case laws.

1. I have gone through the impugned order passed by the trial court in terms of Section 265-K, Cr.P.C. whereby respondents have been acquitted from the charge firstly on the ground that relevant amendment for inclusion of Sections 192 and 192A was included/introduced through SRO dated 20.05.2016 in the Schedule-I of the AMLA, 2010 as a predicate offence which is true and this court has already held that I.O under Investigation and Intelligence-IR is not authorized to proceed and submit any report for the purposes of prosecution on the basis of tax years 2014, 2015 and 2016 in Crl. Appeal No.21/2022, connected matter as there is no retrospective effect available to the tax authorities or investigation agency to proceed against any individual when an act was not an offence under the law and it was held in the above referred judgment that any act prior to 20.05.2016 or proceedings are nullity in the eyes of law and action taken in this regard is to be treated as violation of constitutional mandate.

2. The prosecution has alleged that accused have evaded the tax amounting to Rs.1,221,00,000/-, which is above the threshold under sections 192 and 192A of the ITO, 2001 but after the settlement of cut of date i.e. 20.05.2016 for inclusion of those offences under AMLA, 2010 the income tax calculated or considered by the I.O till 2016 is excluded out-rightly and threshold drops from required standard.

3. I have also gone through the testimony of I.O Muhammad Anwar/PW-18, who has provided the complete record to the trial court having 27 years long experience including the income tax department and I&I department who is well conversant with the income tax laws, rules and regulations including the legal aspect of Sections 114, 120, 122 of the ITO, 2001 where self-assessment scheme was provided for income tax assesse. Investigation Officer acknowledges that the audit pertaining to tax years 2014 to 2017 has not been concluded and Investigation Officer has gathered the information from his personal sources, which were not explained in the report filed before the court. He is also aware to the term with reference to the deemed assessment. Investigation Officer acknowledges that there are no conclusive findings or order passed in terms of Section 122 of the ITO, 2001 against the respondents/accused persons. Investigation Officer has not supported his case with any document where tax returns of the accused persons have been verified rather he based the information from his personal knowledge. The most astonishing factor acknowledged by the I.O/PW-18 is "it is correct that in report under section 173, Cr.P.C. I have not mentioned income tax evasion". PW-18 also confirmed that "subject matter of instant case is pertaining to years 2014, 2015, 2016 and 2017", hence it has clearly been established that I.O/PW-18 has proceeded beyond the legal parameters settled under the law having no knowledge as to how and in which manner anti-money laundering offence has to be dealt.

4. I have also attended the proposition with reference to the evidence of PW-19 Suhail Abbas Deputy Director, I&I-IR Directorate Islamabad who acknowledges that I.O/PW-18 made a request for the tax record of respondents/accused for the tax years 2014 to 2017 Ex.PW-19/1 and all those documents were retrieved from the FBR online database IRIS by PW-19 from his official login, which were handed over to I.O/PW-18 but surprisingly PW-19 also acknowledged that he did not initiated the investigation against the accused persons nor written application was filed by PW-18 for provision of tax return and wealth statements of accused for the tax years 2014, 2015, 2016 and 2017. PW-19 admitted that "it is correct that I have not appointed the I.O, nor delegated any power to I.O". Therefore, some new issues arise in this debate as to whether any person can obtain the tax record of any taxpayer under income tax law and what is the legal position and powers of directorate of Intelligence and Investigation Inland Revenue in terms of Section 230 of ITO, 2001, which outline the working of Directorate General of I&I-IR consists of Director General, Additional Director General and many Directors, Additional Directors, Deputy Directors, Assistant Directors and such officers as the Board, may, by notification in the official Gazette appoint. In subsection(2) of Section 230 of ITO, 2001 the Board may, by notification in the official Gazette, specify the functions, jurisdiction of the Directorate General and its officers and confer the powers of authorities specified in section 207 where Board has the authority to examine, supervise and oversee the functions and general administration under this law, therefore, at this stage, I have attended the SRO No.115(I)/2015 and SRO No.272(I)/2021 as to whether the legal requirement envisaged in the law has been satisfied or not?

5. By virtue of these two SROs, the powers have been delegated to different Officers of I&I Directorate, whereby in SRO 115(I)/2015 dated 09.02.2015, the powers and functions conferred in para-4 only refers the provisions other than Sections 192 and 192A of the I.T.O, 2001 and unless those specific powers have not been envisaged in SRO, no one is authorized to proceed further under those specific provisions or functions related to those provisions, especially in order to prosecute for false statement and verification or concealment of income or tax evasion.

6. I have attended the second SRO.272(I)/2021 dated 02.03.2021, whereby I&I-IR Directorate has been given wide powers with specific regional as well as complete jurisdiction in entire Pakistan, but this notification is also silent to the extent of powers contained in Sections 192 and 192A of the I.T.O, 2001, however, in para-1 of the said notification, Directorate General I&I Inland Revenue was given wide powers without referring to any specific provisions of law to identify, investigate and prosecute an accused of tax evasion provided in I.T.O, 2001 and the rules made thereunder. Even he is authorized to prosecute the complaints of tax evasion or to prosecute on the basis of information shared by the other agencies. If this S.R.O is considered to be applicable in this case, even then D.G I&I Inland Revenue is not permitted to delegate its authority in any manner and as such the evidence of PW-18 and PW-19 is silent to that effect, therefore, in future if a case of tax evasion is required to be investigated in terms of Sections 192 and 192A of the I.T.O, 2001. The following minimum requirement has to be demonstrated:-

i. The tax authorities under I.T.O shall determine the tax evasion as well as false statement and verification on the basis of tax return or other documents furnished by any person in the proceedings besides the assessment of tax liabilities.

ii. Subject to the prima facie findings of I.T.O, Commissioner Appeals or ATIR with reference to tax evasion and false verification, matter shall further proceeded under AMLA if fulfills the other requirements.

2025 M L D 642

[Islamabad]

Before Aamir Farooq, C.J

Fawad Ahmed---Petitioner

Versus

Election Commission of Pakistan through Chief Election Commissioner and another---Respondents

Writ Petition No. 2004 of 2023, decided on 25th September, 2023.

(a) Constitution of Pakistan---

----Art. 13---Criminal Procedure Code (V of 1898), S. 403---Elections Act (XXXIII of 2017), S. 10---Contempt proceedings and registration of FIR---Double jeopardy, principle of---Scope---Petitioner (former Member of National Assembly) apparently made certain statements, on the basis of which, Election Commission of Pakistan (ECP) issued contempt notice, and later, rejecting his objection subsequently issued Show-Cause Notice to him; an FIR had also been lodged against him relating to said statements---Petitioner filed constitutional petition challenging both the notices issued by the ECP---Petitioner agitated the plea of 'double jeopardy' against contempt proceedings initiated by the ECP on the basis that the proceedings in the FIR were already being conducted against him---Validity---Initial condition for applying the principle of double jeopardy under Art. 13 of the Constitution is that no person will be tried for an offence on the same set of facts, on which, he has already been acquitted or convicted---For applicability of the rule 'autre fois acquit', essential conditions to be satisfied are that: there must have been a trial of the accused for the offence charged against him; the trial must have been by a court of competent jurisdiction; there must have been a judgment or order of acquittal; the parties in the two trials must be the same and fact-in-issue in the earlier trial must be identical with what is sought to be re-agitated in the subsequent trial---Fresh prosecution for same offence is barred only where prosecution is finally concluded and ends either in acquittal or conviction---Protection against double jeopardy has been provided against double punishment and not the trial of the offence---Mere lodging of FIRs would not attract rule of double jeopardy and concept of double jeopardy is attracted where accused had been tried for the offence charged in the competent court and there is judgment of conviction or acquittal---In the present case, since no conviction or acquittal had been recorded against the petitioner in the trial faced by him in the case under the provisions of Pakistan Penal Code, it could not be said that Art. 13 of the Constitution or S.403 of the Criminal Procedure Code, 1898, shall come into play and would make the contempt proceedings barred under the law---Thus, the plea of 'double jeopardy' was not available to the petitioner, at least at present stage---Election Commission of Pakistan elaborately dealt with the objections raised by the petitioner in reply to the notice and passed a well-reasoned order, which did not suffer from any illegality or jurisdictional defect---Constitutional petition, being merit-less, was dismissed, in circumstances.

Nazir Ahmed v. Capital City Police Officer, Lahore and another 2011 SCMR 484; Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi and 2 others PLD 1978 SC 121; Saif Ur Rehman Khan v. Chairman, NAB, Islamabad and others PLD 2022 SC 409; Mst. Naushad Bibi v. Sher Khan 2013 PCr.LJ 666; Khadim Hussain Palh v. The State 2014 PCr.LJ 1698; Muhammad Ashraf and others v. The State reported in 1995 SCMR 626 and Abdul Hafeez v. Additional. District Judge-VII, South Karachi and 2 others PLD 200 Karachi 350 ref.

(b) Constitution of Pakistan---

---Art. 13---Criminal Procedure Code (V of 1898), S. 403---Double jeopardy, principle of---Genesis and implications---Genesis of Art.13 of the Constitution can be traced to the English Common Law rule 'nemo debet bis vexari', which, literaly, means that a person may not be put twice in peril for the same offence---This principle by now has come to assume a universal application and is found in constitutions of most of the countries---Implications of the same are:- (i) A person may not be tried for a crime in respect of which he has previously been acquitted or convicted; (ii) In respect of a crime on some previous charge/indictment he has been lawfully convicted; (iii) Where the offence charged is in effect the same or substantially the same as one in respect of which the person charged has previously been acquitted or convicted or in respect of which he could, on some previous indictment, has been convicted; (iv) The evidence necessary to support the second indictment or the facts which constituted the second offence would have been sufficient to procure a legal conviction upon the first indictment either as to the offence charged or as to an offence of which on the indictment, the accused could have been found guilty; (v) The offence charged in the second indictment must have been committed at the time of the first charge i.e. a conviction or acquittal for an assault will not bar a charge of murder if the assaulted person later died; (vi) The earlier adjudication leading to guilt or innocence of a person charged must have been through a valid process and by a Court of competent jurisdiction; (vii) The conviction or acquittal in the previous proceedings must be enforced at the time of the second trial.

Abdul Malik and others v. The State and others PLD 2006 SC 365 ref.

(c) Election Rules, 2017---

----R. 4(8) [as amended through SRO No.2271(I)/2022 dated 16.12.2022]---Elections Act (XXXIII of 2017), S. 6---Notice(s) issued by the Secretary Election Commission of Pakistan (ECP)---Competency---Petitioner (former MNA) filed constitutional petition challenging the notice(s) issued by the Secretary ECP to him---Argument of the petitioner was that Show-Cause Notice had been issued by the Secretary, ECP whereas under S.6 of the Elections Act, 2017, which provides for delegation of powers, there was no authorization in favour of Secretary, ECP---Validity---Amendment had been made in Election Rules, 2017 by incorporating sub-rule(8) of R.4 through SRO No.2271(I)/2022 dated 16.12.2022, which empowered the Secretary of the Commission to issue notice or Show Cause Notice for that matter---As specific delegation had been made to the Secretary of the Commission to issue notice or Show-Cause Notice, hence, there did not seem to be any violation of S.6 or the Elections Act, 2017---Election Commission of Pakistan did elaborately deal with the objections raised by the petitioner in reply to the notice and passed a well-reasoned order, which did not suffer from any illegality or jurisdictional defect---Constitutional petition, being merit-less, was dismissed, in circumstances.

(d) Elections Act (XXXIII of 2017)---

----S. 10---Contempt of Court Ordinance (V of 2003), S.3---Contempt proceedings by the Election Commission of Pakistan (ECP)---Competency---Section 10 of the Elections Act, 2017 does empower ECP to exercise contempt powers as are available to any High Court to call for any person in contempt of court---In this behalf, by reference, in place of the words 'Court' and 'Judge' as provided in Contempt of Court Ordinance, 2003 and/or any other law, reference is to be made to the 'Commission' or the 'Commissioner', as the case may be.

Faisal Fareed Chaudhry for Petitioner.

Saad Hassan for ECP with Muhammad Arshad, D.G (Law) and Ms. Saima Tariq Janjua, DD (Law), ECP.

Judgment

Aamer Farooq, C.J.---The petitioner is a former Member of National Assembly having been elected from NA-67 Jhelum in the General Elections, 2018; he was an active member of a political party namely Pakistan Tehreek-e-Insaaf (PTI) and even held Cabinet posts. Apparently, the petitioner made certain statements, on the basis of which, Election Commission of Pakistan (ECP) issued contempt notice to inter alia the petitioner and apparently, on the same statement made by him, FIR was lodged against him (FIR No.69 dated 24.01.2023 under sections 153-A/506/505/124-A, P.P.C. registered with Police Station Kohsar, Islamabad); he was also arrested pursuant to the referred FIR, but was bailed out subsequently. ECP also took cognizance on the statements made by the petitioner and the contempt notice was issued to the petitioner on 27.01.2023 under section 10 of the Elections Act, 2017 (the Act). The petitioner entered appearance before ECP and tendered his reply. A preliminary objection was raised in the reply to the effect that since the FIR has been registered against him under the provisions of Pakistan Penal Code, hence continuation of contempt proceedings would tantamount to 'double jeopardy' as provided under Article 13 of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution). The referred objection was dismissed and ECP issued show-cause notice to the petitioner on 13.06.2023 seeking his personal appearance for 21.06.2023. In the instant petition, the petitioner has challenged notice dated 27.01.2023 as well as show-case notice dated 13.06.2023.

1. Learned counsel for the petitioner inter alia contended that since the petitioner is facing a case under the provisions of Pakistan Penal Code, hence contempt proceedings amount to double jeopardy and are not tenable. It was argued that show cause notice has been issued by the Secretary, ECP and the same is without lawful authority inasmuch as under section 6 of the Act, all decisions and actions are to be taken by ECP and/or any person authorized in this behalf, including the Chairman, Member (s) or any other Officer of ECP. It was submitted that there was no authorization in favour of Secretary, ECP. Learned counsel lastly argued that though the matter is pending before Lahore High Court, Lahore, but ECP is not a 'court', hence has no jurisdiction to institute contempt proceedings. In support of his contentions, learned counsel placed reliance on the reported cases mentioned in the footnote [].

2. Learned counsel for Election Commission of Pakistan controverted the contentions of the petitioner; in this behalf, it was contended that ECP, vide order dated 27.01.2023, on the basis of derogatory language used by the petitioner and others, decided to initiate contempt proceedings. It was contended that in response to the contempt notice issued, preliminary objection which were taken, were rejected on 06.06.2023. Learned counsel apprised the Court that amendment has been made in Election Rules by way of amendment in sub-rule (8) of Rule 4 of the referred Rules through Notification dated 16.12.2022 bearing SRO No.2271(I)/2022. It was argued that under this newly incorporated sub-rule, the Secretary of the Commission is competent to issue a show-cause notice. It was also argued that under section 10 of the Act, ECP is competent to punish any person in contempt of court and has the same powers as the High Court. It was also submitted on behalf of ECP that double jeopardy is not applicable in the facts and circumstances of instant case inasmuch as trial in the FIR in question is underway and no conviction or acquittal has yet been recorded. It was submitted that only in the event of any verdict, the petitioner may have the plea of double jeopardy, whereas mere prosecution by charging any person with the same facts/allegations in two different cases, does not tantamount to double jeopardy. Reliance was placed on cases noted in the footnote [].

3. Submissions made by the parties have been heard and the documents, placed on record, examined with their able assistance.

4. As noted in the preceding paragraphs, the petitioner is facing contempt proceedings initiated by ECP and also trial in the afore-noted FIR and on the basis of this fact, he agitates the plea of 'double jeopardy'.

5. The principle of 'double jeopardy', as it is commonly known, is enshrined in our Constitution in Article 13 of the same and it provides that no person shall be prosecuted or punished for the same offence more than once or shall, when accused of an offence, be compelled to be a witness against himself. It is only first part of Article 13 ibid, which is of relevance and significance in the instant case. The same principle has also been provided in section 403 of the Criminal Procedure Code (the Code).

6. The principle provided in Article 13 of the Constitution received judicial consideration in a number of cases. In case reported as Nazir Ahmed v. Capital City Police Officer, Lahore and another (2011 SCMR 484), where the petitioner was charged with an offence and was acquitted, but subsequently, disciplinary proceedings were initiated against him by his Department, raised plea of Article 13 ibid, the Supreme Court of Pakistan, while interpreting the referred provision of the Constitution, stated that initial condition for Article 13 to apply is that no person will be tried for an offence on the same set of facts, on which, he has already been acquitted or convicted. It was stated that for applicability of the rule 'autre fois acquit', essential conditions to be satisfied are that; there must have been a trial of the accused for the offence charged against him; the trial must have been by a court of competent jurisdiction; there must have been a judgment or order of acquittal; the parties in the two trials must be the same and fact-in-issue in the earlier trial must be identical with what is sought to be re-agitated in the subsequent trial. In case reported as Abdul Malik and others v. The State and others (PLD 2006 SC 365), the Supreme Court of Pakistan traced the genesis of Article 13 of the Constitution and observed that it can be traced to the English Common Law rule 'nemo debet bis vexari', which, in literal means that a person may not be put twice in peril for the same offence. It was stated that this principle by now has come to assume a universal application and is found in Constitutions of most of the counties. The Supreme Court, while interpreting Article 13 ibid, laid down the implications of the same, which are as follows:-

"i) A person may not be tried for a crime in respect of which he has previously been acquitted or convicted;

ii) In respect of the crime of which he could on some previous charge/indictment has been lawfully convicted;

iii) Where the offence charged is in effect the same or substantially the same as one in respect of which the person charged has previously been acquitted or convicted or in respect of which he could, on some previous indictment, have been convicted;

iv) The evidence necessary to support the second indictment or the facts which constituted the second offence would have been sufficient to procure a legal conviction upon the first indictment either as to the offence charged or as to an offence of which on the indictment, the accused could have been found guilty;

v) The offence charged in the second indictment must have been committed at the time of the first charge i.e. a conviction or acquittal for an assault will not bar a charge of murder if the assaulted person later died;

vi) The earlier adjudication leading to guilt or innocence of a person charged must have been through a valid process and by a Court of competent jurisdiction;

vii) The conviction or acquittal in the previous proceedings must be enforced at the time of the second trial.

Even, in the earlier case reported as Syed Alamdar Hussain Shah v. Abdul Baseer Qureshi and 2 others (PLD 1978 SC 121), the Supreme Court observed that fresh prosecution for same offence is barred only where prosecution is finally concluded and ended either in acquittal or conviction. In a fairly recent judgment reported as Saif Ur Rehman Khan v. Chairman, NAB, Islamabad and others (PLD 2022 SC 409), Article 13 ibid received a fresh judicial ink and Syed Mansoor Ali Shah J., while authoring opinion for the Court, explained applicability of Article 13 (a) of the Constitution in the following words:-

"Article 13(a) provides that no person shall be prosecuted or punished for the same offence more than once. The expressions "prosecuted" and "same offence" used in Article 13 are of vital significance in determining the scope of the protection guaranteed. The expression "prosecuted" means prosecuted on a charge of criminal nature before a Court of law; it does not include prosecution on the basis of breach of some code of conduct by a disciplinary authority or breach of some regulatory framework by an administrative authority. The expression "same offence" means offence constituted of the same ingredients and does not mean "same matter" or "same facts". The ingredients of the offence earlier charged and the offence subsequently charged should be the same, to attract the bar of Article 13, in the sense that the facts constituting the offence earlier charged were also sufficient to justify the conviction of the offence subsequently charged".

In case reported as Mst. Naushad Bibi v. Sher Khan (2013 PCr.LJ 666), the Peshawar High Court observed that protection against double jeopardy had been provided against double punishment and not the trial of the offence. Similar observations were made in case reported as Khadim Hussain Palh v. The State (2014 PCr.LJ 1698), where observation was made by Division Bench of Sindh High Court that mere lodging of FIRs would not attract rule of double jeopardy and concept of double jeopardy is attracted where accused has been tried for the offence charged in the competent court and there is judgment of conviction or acquittal. While observing so, reliance was placed on cases Muhammad Ashraf and others v. The State reported in 1995 SCMR 626 and Abdul Hafeez v. Additional District Judge-VII, South Karachi and 2 others, reported in PLD 200 Karachi 350. Similarly, in a case from the jurisdiction of across the border reported as T.S. Baliah v. T.S. Rengachari (AIR 1969 SC 701), the Supreme Court of India had interpreted that criminal action initiated under the special law i.e. section 52 of the Income Tax Act, 1922 and the effect thereof with general provision of section 177 of Indian Penal Code, 1860. In the referred case, the prosecution was initiated against the appellant under section 52 of the Income Tax Act, 1922 as well as section 177 of Indian Penal Code and it was argued that since there is a special provision of section 52 which subsequently was repealed during pendency of criminal proceedings, no proceedings under section 177 can be initiated as well. The Supreme Court spurned the referred argument that section 52 impliedly repeals section 177 of the Indian Penal Code and observed that they are distinct provisions and the former does not impliedly repealed the latter. In so far as double jeopardy was concerned, which is provided in Article 14 of the Indian Constitution, the Supreme Court held the choice of prosecution for submitting false statement in verifying for income tax returns either under section 177 of the Indian Penal Code or section 52 of the Income Tax Act, 1922 is not violative of Article 14 of the Constitution.

1. In light of the discussion with reference to the above case law and Article 13 of the Constitution, since no conviction or acquittal has been recorded against the petitioner in the trial faced by him in the afore-noted case under the provisions of Pakistan Penal Code, it cannot be said that Article 13 ibid or section 403 of the Criminal Procedure Code shall come into play and would make the contempt proceedings barred under the law. In other words, the plea of 'double jeopardy' is not available to the petitioner, atleast at this stage.

2. In so far as competency of the notices issued to the petitioner is concerned, the amendment made in Election Rules, 2017 by incorporating sub-rule (8) of Rule 4 through SRO No. SRO No.2271(I)/2022 dated 16.12.2022, empowers the Secretary of the Commission to issue notice or show-cause notice for that matter. The referred sub-rule (8) is as follows:-

"(8) If the Commission on the basis of opinion expressed by the Commissioner or the member mentioned in sub-rule(7), decides that action should be taken in the matter, it may direct a notice or a show-cause notice to be issued to the alleged contemnor by the Secretary of the Commission or in his absence, any other officer of the Commission and copy of such notice or show-cause notice shall be sent to the Advocate General, Islamabad who shall in that event either conduct proceedings himself or depute an Additional Advocate General or Deputy or Assistant Advocate General for the purpose".

2025 M L D 804

[Islamabad]

Before Babar Sattar, J

Muhammad Saeed Mughal---Petitioner

Versus

Mian Muhammad Latif and 6 others---Respondents

Civil Revision No. 96 of 2015, decided on 19th November, 2024.

Specific Relief Act (I of 1877)---

---Ss. 12, 42 & 54---Qanun-e-Shahadat (10 of 1984), Arts.71 & 79---Suit for specific performance, declaration, recovery of damages and permanent injunction---Registered agreement to sell---Fraud and forgery---Burden of proof, shifting of---Proof of execution of registered document---Requirement of specific denial by executor Representation of respondents through special attorneys---Non-appearance of respondents before the Trial Court to testify---Adverse inference---Substitution of evidence of special attorney in place of principal---Scope---Non-filing of application for verification of signatures by the respondents on the agreement to sell---Failure of respondents to discharge evidentiary burden---Misapplication of law by the appellate court---Judgments at variance---Suit was decreed by the Trial Court in favour of the petitioner, whereas, the appeal preferred by the respondents was accepted---Validity---Written statements were filed by the special attorneys appointed by respondents and they chose not to appear before the Trial Court to represent themselves or adduce evidence in relation to the petitioner's claim---Respondents also chose not to testify before the Trial Court and it was only their special attorney, who testified as DW-1---Where a registered document is the product of fraud and forgery, it is for such party to first establish through evidence that fraud or forgery were affected by the claimant by producing evidence before the court after which the burden would shift back on the claimant to prove the execution of such registered document---Article 79 of the Qanun-e-Shahadat, 1984 (Order), provides that a registered document need not be proved by production of two attesting witnesses, "unless its execution by the person by whom it purports to have been executed is specifically denied."---Special attorney acknowledged that he had testified in his capacity as special attorney and did not claim to either be a witness to the transactions-in-question or have any personal knowledge of the same---Only respondent could personally testify by entering the witness box and disputing the fact that he had executed the registered agreement, who neither entered into the witness box nor presented himself to be cross-examined by the petitioner---Respondents filed no application to have the signatures of respondent verified on the agreement and/or the payment receipts to determine whether they were indeed the signatures of respondent or not---The only evidence denying the execution and content of the agreement was the testimony of DW-1, special attorney for respondents, who was not privy to the facts and presented hearsay evidence which was not admissible in terms of Art.71 of the Order, thus, Trial Court correctly held that respondents had failed to discharge the evidential burden of proving that the agreement was never executed and the agreement and its registration was a product of fraud and forgery, thus, onus of proving the agreement never shifted back to the petitioner---Appellate Court misapplied the law in terms of Art.79 of the Order and also did not take into account the finding of the Trial Court in terms of Art. 71 of the Order, where it had disregarded the testimony of the special attorney being hearsay evidence of a special attorney not privy to the facts in relation to which he sought to testify---Civil revision was allowed, in circumstances and judgment and decree of Trial Court was reaffirmed and upheld.

Abdul Majeed and others v. Mohammad Subhan and others 1999 SCMR 1245; Abdul Ghafoor and others v. Mukhtar Ahmed Khan 2006 SCMR 1144; Karim Nawaz and another v. Habib Ullah Khan 2013 SCMR 1408; Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik PLD 2021 SC 715; Mst. Nazeeran and others v. Ali Bux and others 2024 SCMR 1271; Mohammad Zafar Iqbal v. Malik Aurangzeb and another 2018 MLD 1689; Abdul Qayyum v. Mohammad Sadiq 2007 SCMR 957; Muhammad Siddique through Legal Representatives v. Mst. Noor Bibi through Legal Heirs PLD 2016 Lah. 140; Janki Vashdeo Bhojwani v. Indusind Bank Limited 2005(2) SCC 217 and Man Kaur v. Hartar Singh Sangha (2010) 10 SCC 512 rel.

Sarfraz Ali Khan for Petitioner.

Sardar M. Hafeez Khan for Respondents Nos. 1, 3 and 4.

Syed Masood Hussain, Sobea Akhtar and Tabinda Zahra Kalwar for CDA.

Date of hearing: 31st October, 2024.

Judgment

Babar Sattar, J.---The petitioner has impugned judgment and decree passed by Additional District Judge, Islamabad, dated 02.02.2015 pursuant to which judgment and decree passed by Civil Judge 1st Class, Islamabad, dated 13.04.2013 in favour of the petitioner were set aside.

1. In terms of background, the petitioner filed Civil Suit No.570/1997 on 16.12.1997. The petitioner claimed that he entered into agreement to sell ("Agreement") dated 22.07.1996 for purchase of Shop No.35, Talal Plaza, Sector I-9, Islamabad ("Property") with Mohammad Latif (respondent No.1), which Agreement was registered before the Sub-Registrar, Islamabad on 24.07.1996. Respondent No.1 entered into the Agreement on behalf of respondent No.3, who was the wife of respondent No.1, and respondent No.4, who was the sister of respondent Nos.1, pursuant to a special power of attorney granted by respondents Nos.3 and 4 in favour of respondent No.1, which was also registered with the Sub-Registrar, Islamabad, on 07.06.1996. Respondents Nos.1, 3 and 4 denied the sale agreement by filing a written statement in March of 2013, through an attorney Mr. Iftikhar Hussain asserting that the Agreement was a forged document and it had not been executed by respondent No.1. The Civil Court after affording the parties an opportunity to adduce evidence framed the following issues on 09.03.2013:

ISSUES:

i. Whether the plaintiff is entitled to the specific performance of sale agreement dated 01.10.1995 and agreement dated 24.07.1996 against the defendants? OPP

ii. Whether in alternative to the performance, the plaintiff is entitled to the damages amounting to Rs.18,50,000/-? OPP

iii. Whether the alleged agreements are fake and fabricated and created no right in favor of plaintiff? OPD

iv. Whether the suit is barred by law? OPD

v. Whether the plaintiff has not come to the court with clean hands, hence, not entitled for the relief as prayed? OPD

vi. Relief

1. The petitioner appeared as PW-1 and reiterated his claim while relying on the Agreement (Exh.P3) and two receipts in the amount of Rs.850,000/- as sale consideration (Exh.P1 and Exh.P2). He also produced Moharrar from the office of the Sub-Registrar, Islamabad as PW-2, who confirmed that the Agreement (Exh.P2) was the true copy of the registered document. Respondents Nos.1, 3 and 4 were represented by Mr. Iftikhar Hussain, special attorney, who appeared as DW-1 and denied the execution of the Agreement and asserted that respondent No.1 had entered into no transaction with the petitioner. The Civil Court in view of the evidence disregarded the testimony of DW-1 being special attorney and not personally privy to the facts of the matter in view of the Article 71 of the Qanun-e-Shahadat Order, 1984 ("QSO"), such evidence being inadmissible. The Civil Court found that sanctity and presumption of truth was attached to the Agreement, which was a registered document. The petitioner had also adduced, as evidence, receipts for payment of consideration and testified to having paid such amount to respondent No.1, which evidence had not been rebutted by respondents No.3 and 4. The Civil Court found that the petitioner had made out the case and consequently issued a judgment and decree in favour of the petitioner. The respondents Nos.1, 3 and 4 filed a Civil Appeal No.17 of 2014, which was instituted on 13.05.2013 and was decided through the impugned judgment dated 02.02.2015. The Additional District Judge held that respondents Nos.1, 3 and 4 had denied the Agreement and consequently the onus shifted back to the petitioner to prove the execution and content of the document, which he did not do by producing any marginal witnesses. He further found that while Exh.P1 and Exh.P2 were produced as the receipts for payment of consideration, no marginal witnesses were produced to establish that he had paid consideration in the amount of Rs.850,000/- to respondent No.1 on 01.10.1995 and 06.12.1995, respectively. He submitted that as the Agreement had been denied, Article 79 of the QSO became applicable and it was essential for the petitioner to prove the sale transaction that formed the subject matter of the Agreement. As the transaction had not been proved, specific performance of the Agreement could not be ordered.

2. Learned counsel for the appellant submitted that the Agreement was a registered document and presumption of truth attached to such document. Respondents Nos.1, 3 and 4 through their special attorney had contested the execution of the Agreement and the sale transaction that formed its subject matter, but had adduced no evidence to prove the factum of fraud or forgery. He submitted that the Civil Court had correctly held that the testimony of DW-1 was not admissible in evidence in terms of Article 71 of QSO, as he was appointed as attorney for purposes of filing the appeal and was not a witness to any facts in relation to which he had testified. He submitted that respondents Nos.1, 3 and 4 never entered the witness box and respondent No.1 did not present himself to testify and subject himself to cross-examination. The said respondents also did not file any application seeking a comparison of the signatures of respondent No.1 on the Agreement as well as the payment receipts. Consequently, a bald denial by the attorney of respondents Nos.3 and 4 could not be considered as denial for purposes of Article 79 of QSO transferring the onus of proof to the petitioner. He submitted that the manner in which the Civil Court had accepted the written statement was also mysterious. While respondents Nos.1, 3 and 4 had entered appearance before the Civil Court on 08.03.2000 by filing a memo. of appearance, their right to defend was struck-off by the Civil Court on 06.06.2006 and finally on 26.02.2013 they filed an application for recalling of such order along with an application for condonation of delay, after rendering appearance by filing vakalatnama on 22.02.2013 accompanied by a copy of the special power of attorney of Mr. Iftikhar Hussain (dated 20.06.2012, recognizing him as attorney of respondents Nos.1, 3, and 4).

3. A perusal of the order sheet reflects that no order was passed accepting such application and permitting respondents Nos.1, 3 and 4 to file a written statement. A written statement is available on the record. Thus, without accepting the application seeking the setting aside of the right of respondents Nos.1, 3 and 4 to defend themselves, the written statement dated 05.03.2013 somehow crept into the record and issues were framed on 09.03.2013. He submitted that the petitioner has been in possession of the Property since 1996 and the same has been acknowledged in the registered sale agreement by mentioning the Property as the address of the petitioner therein. He submitted that given that there was no evidence adduced by respondents Nos.1, 3 and 4 against the petitioner, and the petitioner's claim and the evidence adduced by the petitioner was not rebutted, the Civil Court had correctly appreciated the law and decreed the suit.

4. Learned counsel for the respondents defended the judgment of the Additional District Court. He submitted that a story of the petitioner did not add up. While the petitioner had claimed that he had paid consideration in the amount of Rs.850,000/-, the Agreement stated that a consideration of Rs.550,000/- had been agreed upon. He submitted that respondents Nos.1,3 and 4 had previously authorized Mr. Abdul Shakoor Tariq as their attorney who had filed a written statement on 27.04.2000 and the assertion that no written statement had been filed by respondents Nos.1, 3 and 4 was therefore incorrect. He further submitted that once the transaction had been denied by respondents Nos.1, 3 and 4 by filing a written statement, the onus to prove the transaction shifted back to the petitioner, which he had failed to discharge. The Additional District Court had correctly observed that one of the attesting witnesses was the brother-in-law of the petitioner but had not been produced before the Court to prove the transaction. He also submitted that consideration had not been proved as there were no attesting witnesses to the purported receipts issued and no testimony had been produced on behalf of any witness to such payment. As the execution of the Agreement had not been proved after such execution having been denied by respondent No.1 and payment of consideration had also not been proved, the specific performance of the Agreement could not have been ordered.

5. Perusal of the record reflects that the Civil Court could have been more diligent in the manner in which the trial was conducted and orders recorded. The record reflects that written statement was filed on behalf of respondents Nos.1, 3 and 4 through a special attorney named Abdul Shakoor Tariq on 27.04.2000, However, issues were not framed in view of such written statement. The order sheet does not reflect that this written statement was disregarded by the Civil Court or that the permission was granted to file a better statement which was subsequently filed by Mr. Iftikhar Hussain as the last attorney holder on behalf of respondents Nos.1, 3 and 4 on 05.03.2013. The order sheet also doesn't reflect whether any order was passed in relation to the application filed by Mr. Iftikhar Hussain in the year 2012, on behalf of respondents Nos.1, 3 and 4, to recall the order striking out their right to defend themselves in the year 2006.

6. Be that as it may, the petitioner appears not to have contested the legality of the written statement as considered by the Civil Court before the Appellate Court and evidence was produced by both parties on the basis of issues framed by the Civil Court by order dated 28.01.2013. Consequently, as a revisional court, this Court will take into account the evidence as adduced before the Civil Court, and the admissibility as well as reliability of such evidence, as it was on such basis that the Additional District Court set aside the judgment and decree passed by the Civil Court dated 13.04.2013.

7. This Court has also taken note of the fact that the Property as claimed by respondents Nos.1, 3 and 4 was in the name of Mst. Naheed Akhtar (respondent No.3), who is purportedly the wife of respondent No.1, and Mst. Sadaf Naseem (respondent No.4), who is purportedly the sister of respondent No.1. Respondents Nos.3 and 4 granted the petitioner special power of attorney to administer and sell the Property by special power of attorney dated 07.06.1996, which was registered with the Sub-Registrar, Islamabad. It was pursuant to this power of attorney that respondent No.1 purportedly entered into the Agreement with the petitioner. Respondents Nos.3 and 4 then had the power of attorney issued to respondent No.1 cancelled on 09.10.1997 through another document also registered with Joint Sub-Registrar, Islamabad on 09.10.1997. In view of the cancellation of the special power of attorney (Exh.P5) it is unclear as to the interest of respondent No.1 in the Property, other than as a witness who can testify to the facts in relation to the Agreement. This Court has also noted that in the first written statement filed by respondents Nos.1, 3 and 4 they had asserted that respondent No.1 had sold the Property to one Mr. Abdul Shakoor Tariq and executed a power of attorney in his favour on 09.10.1997. The statement in this regard in para 01 of the written statement dated 27.04.2000, however, does not feature in the written statement filed on behalf of respondents Nos.1, 3 and 4 by Mr. Iftikhar Hussain in March of 2013, whereby it has been asserted that respondents Nos.1, 3 and 4 are owners of the commercial building construction on Plot No.17, I-9 Markaz known as Talal Plaza, Islamabad.

8. Both written statements were filed by special attorneys who were authorized by respondents Nos.1 and 3, who at the time of appointment of such special attorneys were in Canada, where they still remain. In other words, written statements were filed by the special attorneys appointed by respondents Nos.1, 3 and 4. And respondents Nos.1, 3 and 4 chose not to appear before the Civil Court to represent themselves or adduce evidence in relation to the petitioner's claim. Respondents Nos.1, 3 and 4 also chose not to testify before the Civil Court and it was only their special attorney Mr. Iftikhar Hussain who testified as DW-1.

9. The legal questions that arise in view of the above include, inter alia, as to what constitutes denial of a registered agreement for purposes of Article 79 of the QSO and at what point does the onus shift back to a claimant who relies on a registered document that has been denied by the counterparty, and in terms of Article 71 of the QSO what can a person authorized as special attorney testify regarding while appearing on behalf of a principal.

10. It was held by the Supreme Court in Abdul Majeed and others v. Mohammad Subhan and others (1999 SCMR 1245) that, "it is axiomatic principle of law that a registered deed by itself, without proof of the execution and genuineness of the transaction covered by it, would not confer any right. There is no cavil with the proposition that these documents being part of public record are admissible in evidence but they by their own force would not prove the genuineness and execution of that to which they relate unless the transaction covered by them is substantiated from independent and reliable source. Admissibility is to be distinguished from proof required by law for determining the execution and genuineness of a document." In Abdul Ghafoor and others v. Mukhtar Ahmed Khan (2006 SCMR 1144) it was held that, "there is no cavil to the proposition that a presumption of truth is attached to registration of a document but if its contents are challenged then the onus shifts on the beneficiary to prove its contents." In Karim Nawaz and another v. Habib Ullah Khan (2013 SCMR 1408) a dispute with regard to an agreement to sell came before the Supreme Court. It was held that, "these three documents are registered documents and presumption of truth is attached to these documents … Admittedly, Amir Abdullah who had executed the said documents was alive but he was not produced in the Court to nullify the execution of documents in question. Even no application was ever moved for the comparison of his signatures on the said documents, as such, the High Court has correctly relied upon the said documents for restoration of this judgment of the Civil Court whereby the suit filed by the respondent stood decreed." In Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik (PLD 2021 SC 715) a claimant sought to produce a certified copy of the registered document as secondary evidence under Article 88 of the QSO. The Supreme Court held that, "the petitioner was first to produce evidence to account for non-production of the original and establish that the original had infect been lost, as required under Article 6 (c) of the QSO. Once the execution of a registered document is disputed, it does not remain a "Public Document" and becomes a "Private Document"; therefore, any form of its secondary evidence, including its certified copy, cannot be produced in evidence to prove its existence, condition or contents without complying with the requirements of Article 76 of QSO."

11. The High Courts have drawn different conclusions about the admissibility of a registered document the execution of which has been denied, and the manner in which the onus to prove such document is to be discharged. The issue was comprehensively addressed by the Supreme Court most recently in Mst. Nazeeran and others v. Ali Bux and others (2024 SCMR 1271) in which the following was held:

"the phrase 'burden of proof' has two meanings - one the burden of proof as a matter of law and pleading, that is 'legal burden' and the other, the burden of establishing a case, that is 'evidential burden', the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour.

Thus, the legal burden would always remain on the plaintiffs and the evidential burden would shift to the defendants if they (plaintiffs) discharged their initial burden. The evidence required to shift the evidential burden need not necessarily be direct evidence i.e. oral or documentary evidence or admissions made by the opposite party, it may comprise of circumstantial evidence or presumptions of law or fact. The question as to whether the burden of proof has been discharged by a party to the lis or not, would depend upon the facts and circumstances of the case ….

The standard of evidence is not uniform when challenging a registered document as compared to challenging an unregistered document. It has been observed that in disputes relating to registered documents, a common misconception may arise when an executant attempts to dispute the validity of the document through mere denial. It is essential to emphasize that the act of registration is not a perfunctory formality but rather a deliberate and legally binding process. When a document is registered, it becomes an official record available to the public. This adds credibility to the authenticity and legal purpose of the transaction.

a document duly registered by the Registration Authority in accordance with the law becomes a legal document that carries a presumption as to the genuineness and correctness under Articles 85(5) and 129(e) of the Q.S.O. and which cannot be dispelled by an oral assertion that is insufficient to rebut the said presumption. The High Court overlooked the above position of law and erroneously held in the impugned judgment that "the moment the document [suit registered documents] is challenged by the alleged executant or his successor-in-interest, that presumption stands rebutted, and the beneficiary thereof has to prove not only the execution thereof, but also the original transaction embodied therein."

The case of the respondents rested on the ground of fraud and forgery allegedly committed by the appellants. Fraud vitiates all actions and no Court can uphold a right on fraud. It is very easy to assert fraud but it is difficult to prove the same … when a party alleges fraud it becomes its duty to prove the same and generalized allegations or for that matter, mere bald assertions without evidence cannot shift the initial burden.

That being so, we have no hesitation in our mind to hold that a mere denial by the executant of a registered sale deed is insufficient to shift the burden onto the beneficiary of the registered document. He (executant) must establish his assertion of fraud or forgery, etc. by producing some evidence other than his denial to shift the burden onto the beneficiary to prove the valid execution of the registered document. This legal principle reflects the recognition of the high evidentiary value attached to registered documents as compared to unregistered documents."

1. In view of the law laid down by the Supreme Court in Mst. Nazeeran, by denying the execution of an agreement that constitutes a registered document in pleading the legal burden of such denial might stand discharged but the evidential burden doesn't. For the evidentiary burden to shift from the party denying the execution of a registered document to the claimant relying on such document a perfunctory denial in the written statement is insufficient. Where it is argued by the counter party that a registered document is the product of fraud and forgery, it is for such party to first establish through evidence that fraud or forgery were affected by the claimant by producing evidence before the Court after which the burden would shift back on the claimant to prove the execution of such registered document.

2. The denial of a claim on grounds of fraud also came before this Court in Mohammad Zafar Iqbal v. Malik Aurangzeb and another (2018 MLD 1689 Islamabad) in which it was held that details of fraud and forgery must be established and proved by the party making such claim in the following terms:

"It is well settled that fraud and forgery must be proved by producing unimpeachable, impartial and confidence inspiring evidence. Mere allegations of fraud and forgery cannot partake proof required under the law … If, in the plaint, a document is alleged to be fake or fraudulent or obtained through fraud, the plaintiff duty was to state clearly the material facts showing how the alleged fraud was committed."

1. The second question that arises is the manner in which a special attorney can produce evidence on behalf of a party to the dispute. In the context of preemption, the question came before the Supreme Court in Abdul Qayyum v. Mohammad Sadiq (2007 SCMR 957) in which the following was held:

"This is an admitted fact that attorney of the pre-emptor was not present in the meeting in which he claimed to have performed Talb-i-Muwathibat and had no personal knowledge about the date of sale and making of performance of Talbs by the pre-emptor rather his statement was based on the knowledge of the pre-emptor who despite being available, did not appear in the witness box. The pre-emptor, no doubt could appoint an attorney to pursue the suit but Talb-i-Muwathibat being a personal act of the pre-emptor, is required to be proved by him through his own statement and an attorney may not be a substitute of the pre-emptor under the law."

1. The same question was comprehensively dealt with by the Lahore High Court in Muhammad Siddique through Legal Representatives v. Mst. Noor Bibi through Legal Heirs (PLD 2016 Lahore 140) in which the plaintiff who was the beneficiary of mutations did not appear in the witness box and instead had his attorney appeared for him. The Lahore High Court held that, "a party to a suit must show some plausible reason for not appearing in the witness box to give evidence more so when the facts required to be deposed are exclusively in the personal knowledge of the party. Where a party to the suit does not appear in the witness box and state his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. In other words, if a party abstains from entering the witness box, it would give rise to an adverse inference against him." The Lahore High Court relied on judgment of the Indian Supreme Court Janki Vashdeo Bhojwani v. Indusind Bank Limited (2005 (2) SCC 217) in which Indian Supreme Court held the following:

"Order III, Rules 1 and 2. C.P.C., empower the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, Rules 1 and 2, C.P.C., confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined…

If the facts required to be proved are exclusively in the personal knowledge of the principal, the evidence of the attorney holder on those facts would be in the nature of hearsay evidence carrying no weight."

The Lahore High Court further relied on Man Kaur v. Hartar Singh Sangha ((2010) 10 SCC 512) where the Indian Supreme Court held similarly that, "an attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit … The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge." The Lahore High Court affirmed the aforementioned principles expounded by the Indian Supreme Court and held that, "for proving the facts leading up to the conclusion of sale transaction (oral sale) between the parties and the payment of the sale consideration, therefore, the petitioner-plaintiff ought to have examined himself as a witness and to state all these facts that were in his personal knowledge, and in holding so observed that the testimony of the attorney of the plaintiff had to be ignored for being hearsay evidence where the evidence produced is found to be relevant and admissible the evidentiary value of such evidence is to be determined by the trial Court." It was held by the Supreme Court in Mst. Akhtar Sultana that, "the evidentiary value or in other words, weight of evidence, is actually a qualitative assessment made by the trial judge of the probative value of the proved fact. Unlike "admissibility", the evidentiary value of a piece of evidence cannot be determined by fixed rules, since it depends mainly on common sense, logic and experience and is determined by the trial judge, keeping in view the peculiarities of each case."

1. Article 79 of the QSO states the following:

"Proof of execution of document required by law to be attested: If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses to least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of given Evidence. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."

Article 79 of the QSO provides that in case of a registered document such document need not be proved by production of two attesting witnesses, "unless its execution by the person by whom it purports to have been executed is specifically denied."

1. In the facts of the case before the Court, respondent No.1 had two written statements filed through two different attorneys and denied the execution of the Agreement through both statements. In the first written statement respondent No.1 asserted to have sold the Property to a third party. Whereas in the second written statement, there was no mention of any third party, and it was claimed that the ownership remained with respondents Nos.1, 3 and 4. The assertion in the written statement can at best be treated as respondent No.1 discharging the legal burden of denying the execution of the document in terms of the law laid down by the Supreme Court in Mst. Nazeeran. The only evidence adduced by respondents Nos.1, 3 and 4 in support of their assertion that the Agreement is a product of fraud and forgery is a statement by Mr. Iftikhar Hussain, a special attorney, as DW-1. In his testimony DW-1 acknowledged that the petitioner has remained in possession of the Property since 1997 and that respondents Nos.1, 3 and 4 filed a suit for forgery and fraud. However, no evidence with regard to the status of such suit was ever placed on record, nor was any reference to the outcome of such case made during the arguments either. DW-1 further acknowledged that he has testified in his capacity as special attorney and did not claim to either be a witness to the transactions-in-question or have any personal knowledge of the same.

2. Article 71 of QSO, that the Civil Court relied on while disregarding the testimony of DW-1, provides the relevant part that, "oral evidence must, in all cases whatever be direct, that is to say-if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it." The transaction-in-question relates to execution of the Agreement and receipt of sale consideration. It is the petitioner's claim based on the Agreement, which is a registered document, that the Agreement was executed by respondent No.1 who received sale consideration and issued receipts Exh.P1 and Exh.P2. Respondent No.1 purportedly entered into such transaction as special attorney of respondents Nos.3 and 4 in the year 1996. Subsequently, in 1997 the special power of attorney of respondent No.1 was cancelled and consequently the status of respondent No.1 was reduced to that of being a witness to the transaction purportedly entered into by him on behalf of respondents Nos.3 and 4. It was only respondent No.1 who could personally testify by entering the witness box and disputing the fact that he had executed the Agreement, which was registered with the Sub-Registrar, Islamabad, as was testified by PW-1, and confirmed by PW-2, an official in the office of Sub-Registrar, Islamabad. Respondent No.1 neither entered into the witness box as aforementioned nor presented himself to be cross-examined by the petitioner. Further respondents Nos.1, 3 and 4 filed no application to have the signatures of respondent No.1 on the Agreement and/or the payment receipts (Exh.P1 and Exh.P2) to determine whether they were indeed the signatures of respondent No.1 or not. The only evidence denying the execution and content of the Agreement was the testimony of DW-1, special attorney for respondents Nos.1, 3 and 4, who was not privy to the facts and presented hearsay evidence which was not admissible in terms of Article 71 of QSO, as correctly held by the Civil Court. Respondents Nos.1, 3 and 4 had thus failed to discharge the evidential burden of proving that the Agreement was never executed and the Agreement and its registration was a product of fraud and forgery in terms of the law laid down by the Supreme Court in Mst. Nazeeran. The onus of proving the Agreement therefore never shifted back to the petitioner.

2025 M L D 882

[Islamabad]

Before Miangul Hassan Aurangzeb, J

Zafarullah Shaheen---Petitioner

Versus

National University of Modern Languages (Numl) through Registrar and 4 others---Respondents

Writ Petition No. 3670 of 2019, decided on 5th December, 2024.

National University of Modern Languages (NUML) Examination Rules, 2018---

----R.5.31---Constitution of Pakistan, Art. 199---Educational institution---Award of M.Phil Degree instead of Ph.D Degree---Non-adherence to statutory Rules/Regulations---Interference by High Court---Scope---Non-completion of thesis of Ph.D Degree by the petitioner within prescribed time as required under Reglns.5.3 and 5.14(i) of Regulations of Examinations, 2001 (Regulations)---Petitioner attributed delay in completing the thesis to the respondent-University on account of not determining the topic and not appointing the supervisor---Contention of respondent University was that petitioner did not adhere to that statutory requirements of R. 5.31 of Examination Rules, 2018 (Rules) and did not submit re-defence of Ph.D. thesis before the Thesis Defence Committee (TDC) within time, thus Review Committee issued M.Phil Degree instead of Ph.D. Degree---Contention of the petitioner was that instead of giving him opportunity to re-appear before the TDC the letter of award of M.Phil Degree had been issued---Validity---Petitioner's defence that NUML had delayed the approval in the change of petitioner's topic for Ph.D thesis, was not tenable for the reason that he could not point out any provision of the Regulations, which required such changes to be approved by NUML---Petitioner did not submit his thesis for a re-defence before TDC within the deadline given by TDC, which caused NUML to decide not to issue him a Ph.D. Degree---Regulation 5.3 in Chapter-5 of the Regulations provided that the "total duration of Ph.D. Program is 3-8 years."---Contesting parties in unison submitted that Regln. 5.3 had been part of the Regulations right from the time when the same are approved by the Board of Governors of NUML---High Court cannot re-write Regulations of an educational institution which are approved by its Board of Governors---High Court, in exercise of its Constitutional jurisdiction, could also not give to the petitioner an exemption from the applicability of any of the said Regulations---If High Court was to issue a writ of mandamus directing NUML to permit the petitioner to submit his re-defence it would not be without violence to Regln. 5.3 ibid---High Court could not substitute its own opinion for that of NUML contained in the letter, because such like educational matters were best left to elite members of faculty, who possessed technical expertise and experience of actual day to day workings of the educational institutions---Constitutional petition was dismissed, in circumstances.

Khyber Medical University v. Aimal Khan PLD 2022 SC 92; Hafsa Habib Qureshi v. Ameer Hamza PLD 2024 SC 789 and Aina Haya v. Principal Peshawar Modern Girls High School 2023 SCMR 198 rel.

Barrister Ali Hamza Malik for Petitioner.

Nauman Munir Paracha for NUML for the Respondents.

Dates of hearing: 14th and 22nd November, 2024.

Judgment

Miangul Hassan Aurangzeb, J.---Through the instant writ petition the petitioner, Zafarullah Shaheen, impugns (i) the decision dated 19.02.2019 taken by the Review Committee of the National University of Modern Languages ("NUML") to recommend that the petitioner be awarded an M.Phil degree as he was unable to complete all formalities for the award of a Ph.D. degree by 31.01.2019, and (ii) letter dated 27.02.2019 from NUML informing the petitioner about the decision of the Review Committee.

1. The petitioner was enrolled in M.Phil Programme leading to Ph.D. in English Literature in the Session 2010 bearing registration No.497-MPhil/Ling/Jan/10-46. The petitioner claims to have successfully completed his Ph.D. thesis on 17.07.2017. The petitioner also asserts that a plagiarism check of the Ph.D. thesis was conducted on 19.07.2017 after which the petitioner was asked to re-submit the thesis as it showed similarity index of 27% against the maximum permissible index of 19% prescribed by the Higher Education Commission ("HEC"). The petitioner also claims to have re-submitted the thesis with a similarity index of 16%. The petitioner claims to have received his foreign evaluation reports on 16.04.2018 and 15.05.2018. The local evaluation reports are stated to have been given to him on 07.06.2018, 08.07.2018 and 19.12.2018.

2. The petitioner blames NUML for wasting one and a half year by delaying the approval of a topic for the petitioner and not appointing his supervisor. It was not until 18.02.2014 that Dr. Ayaz Afsar gave his consent to become the petitioner's supervisor. In short the petitioner asserts that the delay in the submission of his thesis was entirely attributable to the delay on NUML's part to determine the topic for his Ph.D. and to approve the change of his supervisor.

3. Vide letter dated 22.01.2019, NUML called the petitioner for his Ph.D. defence. The petitioner appeared before the Defence Committee on 23.01.2019 after which he was informed that major changes had been recommended in the evaluation report of the thesis and that the petitioner had to re-appear for a re-defence after incorporating the changes within two months. Thereafter, the petitioner was informed by NUML vide letter dated 27.02.2019 that since he had not completed all the formalities regarding his thesis by 31.01.2019, it had been decided to award him an M.Phil degree. Aggrieved by the said letter, the petitioner assailed the same by filing the instant petition.

4. Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant petition, submitted that Rule 5.31 of the Examination Rules, 2018 provides that a student failing in the first attempt of defence may be given another chance on the recommendation of the Thesis Defence Committee ("TDC"); that the said Rule also provides that TDC can reject the thesis without giving a second chance if the performance of the student is extremely poor; that after TDC evaluated the petitioner's thesis on 23.01.2019, it did not find the petitioner's performance to be extremely poor, however it was decided that a re-defence be carried out by incorporating changes in his thesis; that the petitioner was not just required to re-appear before TDC within two months after incorporating the changes in his thesis, but he was also orally informed that the thesis had been approved; that instead of giving an opportunity to the petitioner to re-appear for a re-defence, he was informed vide letter dated 27.02.2019 that he would be awarded an M.Phil degree and not a Ph.D. degree; and that the delay in the completion of the Ph.D. degree is not attributable to the petitioner. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.

5. On the other hand, learned counsel for NUML submitted that Regulation 5.3 of the Regulations for Examinations-2001 as approved by the Board of Governors of NUML on 15.11.2001 provides that the total duration of the Ph.D. Programme is three to eight years; that Regulation 5.14(i) provides that if a student fails to submit his final thesis after fulfilling all formalities despite availing extension by the end of 12th Semester, his case will be referred to the Board of Advanced Studies and Research ("BASR") for dismissal; that BASR, in its 7th meeting held on 28.12.2018, considered the ongoing cases of Ph.D. of several students including that of the petitioner; that the decision taken by BASR with respect to the petitioner was that all formalities including the notification are to be completed by 31.01.2019; that the said decision was in the knowledge of the petitioner since it had been placed on the notice board; that since the petitioner did not complete his Ph.D. by submitting a thesis approved by TDC by the deadline of 31.01.2019, the decision not to award him a Ph.D. degree does not suffer from any legal infirmity; and that as the petitioner did not complete his Ph.D. degree within the stipulated period of eight years, he has no legal basis to seek a direction for allowing him to incorporate changes in his Ph.D. thesis after the said deadline. Learned counsel for NUML prayed for the writ petition to be dismissed.

6. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraphs 2 to 4 above and need not be recapitulated.

7. The sole ground on which the Review Committee of NUML decided to award an M.Phil degree and not a Ph.D. degree was that the petitioner had not completed all formalities for submitting a thesis approved by TDC by the deadline of 31.01.2019. The said deadline was fixed by BASR in its 7th meeting held on 28.12.2018 when it examined inter alia the petitioner's ongoing Ph.D. case. The meeting of BASR was chaired by the Rector and attended by the Director General, Deans, Directors, Head of Departments and Coordinators.

8. After the petitioner submitted his Ph.D. thesis, the Ph.D. defence was held by TDC on 23.01.2019. The position taken by NUML in its written comments was that the petitioner was not able to pass the defence, resulting in the petitioner's case being placed before the Review Committee. The Review Committee is said to have taken into account the petitioner's evaluation reports and his poor performance during the defence and recommended him for the award of the M.Phil degree. In fact perusal of the report of TDC shows that the petitioner's case was approved for a re-defence. It is an admitted position that by the deadline of 31.01.2019 the petitioner did not submit his thesis for a re-defence. This caused NUML to decide not to issue him a Ph.D. degree.

9. Indeed Regulation 5.3 in Chapter-5 of the Regulations of Examination 2001 ("the 2001 Regulations") provides that the "total duration of Ph.D. Program is 3-8 years." The contesting parties are in unison on their submission that Regulation 5.3 has been part of the 2001 Regulations right from the time when the said Regulations were approved by the Board of Governors of NUML on 15.11.2001. This Court cannot re-write Regulations of an educational institution which were approved by its Board of Governors. This Court, in exercise of its Constitutional jurisdiction, can also not give a petitioner an exemption from the applicability of any of the said Regulations. The petitioner started his Ph.D. programme in January, 2011. The eight years during which he should have completed his Ph.D. in every respect expired in January, 2019. If this Court was to issue a writ of mandamus directing NUML to permit the petitioner to submit his re-defence it would not be without violence to Regulation 5.3 ibid.

10. Regulation 5.14(i) provides that if a student fails to submit his final thesis after fulfilling all formalities despite availing extension by the end of 12th Semester, his case will be referred to BASR for dismissal. The petitioner's 12th semester ended in December, 2016, whereafter the petitioner's case was referred to BASR, which had required the petitioner to submit his thesis latest by 15.03.2017. Email dated 03.03.2017 from NUML informing the petitioner about BASR's said decision is on the record. Vide email dated 30.05.2017, the petitioner was warned that if he did not submit his thesis by 14.06.2017, his name would be struck off from the roll of NUML without further notice. Finally BASR, in its 7th meeting held on 28.12.2018, considered the ongoing cases of Ph.D. of several students including that of the petitioner, and decided that all formalities regarding the petitioner's Ph.D. programme were to be completed by 31.01.2019. The petitioner did appear before the Review Committee for the defence of his thesis but was not able to get it cleared.

11. Based on the documents on the record, it is my view that the petitioner did not take seriously the repeated warnings of NUML to complete his Ph.D. by the different deadlines that had been fixed. The petitioner ought to have taken BASR's decision taken in its meeting dated 28.12.2018 seriously by submitting his thesis well before the deadline bearing in mind that there may be a requirement for a re-defence. The mere fact that a re-defence was required in the petitioner's case would neither do away with the deadline of 31.01.2019 imposed pursuant to BASR's decision dated 28.12.2018 nor make the requirement of Regulation 5.3 inapplicable.

12. As regards the petitioner's defence that NUML had delayed the approval in the change of the petitioner's topic for Ph.D. as well as his supervisor, learned counsel for the petitioner could not point out any provision of the 2001 Regulations which required such changes to be approved by NUML.

13. Now, in the given circumstances no matter how compassionate this Court may feel towards the petitioner, since no violation of the statute or the 2001 Regulations was demonstrated by the petitioner, this Court cannot substitute its own opinion for that of NUML contained in the impugned letter dated 27.02.2019. This is so because educational matters like instant one are best left to elite members of faculty who possess technical expertise and experience of actual day to day workings of the educational institutions. Reference in this regard may be made to a judgment of the Hon'ble Supreme Court in case of "Khyber Medical University v. Aimal Khan" (PLD 2022 SC 92) wherein it was inter alia held as follows:-

"4. It has been time and again held by this Court that courts must sparingly interfere in the internal governance and affairs of educational institutions. It is simply prudent that the courts keep their hands off educational matters and avoid dislodging decisions of the university authorities, who possess technical expertise and experience of actual day to day workings of the educational institutions. Every university has the right to set out its disciplinary and other policies in accordance with law, and unless any such policy offends the fundamental rights of the students or violates any law, interference by the courts results in disrupting the smooth functioning and governance of the university. It is, therefore, best to leave the disciplinary, administrative and policy matters of the universities or educational institutions to the professional expertise of the people running them, unless of course there is a violation of any of the fundamental rights or any law.

2025 M L D 925

[Islamabad]

Before Sardar Muhammad Sarfraz Dogar, ACJ

Sohaib Ali Hashmat---Petitioner

Versus

The State and another---Respondents

Crl. Misc. No. 474 of 2025, decided on 25th March, 2025.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Emigration Ordinance (XVIII of 1979), Ss. 18 & 22---Penal Code (XLV of 1860), S. 489-F---Illegal immigration services, dishonestly issuing a cheque---Bail, grant of---Further inquiry---Allegation against the petitioner was that he extorted foreign currency from complainant's grandson in presence of witnesses to send him abroad on work visa without having any legal authorization---Later on, neither the petitioner sent the complainant's grandson abroad nor returned the money, rather he dishonestly issued a cheque amounting to Rs. 600,000/- which was dishonoured when presented for encashment in the concerned bank---Record showed that in the FIR no specific date had been mentioned on which the grandson of the complainant had given money to the petitioner for sending him abroad---Offences under Ss.18/22 of the Emigration Ordinance, 1979, for which the petitioners stood charged, were punishable with imprisonment for 14 years or with fine or with both---When a statute provided two punishments simultaneously for commission of an offence, then for the purpose of bail, the lesser punishment is considered by the Court---In case the prosecution succeeded in proving its case against the accused, then whether the Court would inflict him the maximum or the minimum sentence was a question which brought the petitioner's case within the ambit of further inquiry as there was no certainty that he would be awarded the term of imprisonment---Record showed that the petitioner returned an amount of Rs. 700,000/- to the complainant through two online transaction---In such backdrop, issuance of cheque in question within the meaning of S.489-F, P.P.C, was a matter which would be resolved by the Trial Court after having recourse to evidence---Cheque was admittedly a negotiable instrument falling within the domain of Order XXXVII of CPC and the criminal courts could not be used as tool for recovery in such like cases---Moreover, there was a considerable delay in lodging the FIR---For the recovery of an amount, law provided a separate remedy under the C.P.C.---Petitioner was behind the bars since his arrest---Investigation of the case was complete and physical custody of the petitioner was no more required by the police for the purpose of further investigation---Further incarceration of the petitioner would serve no useful purpose for the prosecution---Bail petition was allowed, in circumstances.

Qamar alias Mitho v. The State and others PLD 2012 SC 2229; Reginald Chude Bjekwe, Nigerian National v. The State and others 2021 MLD 2028; Haji Faqir Khan v. The State and others 2017 PCr.LJ 1017; Bashir Ahmed v. The State and others PLD 2014 Lahore 567; Ali Anwar Paracha v. the State and another 2024 SCMR 1596 and Qaiser Ali Khan v. The State and another 2017 YLR Note 47 rel.

Raja Faisal Younas Abbasi for Petitioner.

Arshid Mahmood Kiani, Deputy Attorney General along with Rashida S.I./FIA for the State.

Malik Zafar Iqbal Awan for the Complainant.

Order

Sardar Muhammad sarfraz dogar, ACJ.---Through the instant petition, the petitioner is seeking post-arrest bail in respect of FIR No.83 dated 03.05.2024 registered for the offences under Sections 18 and 22 of the Emigration Ordinance, 1979 and Section 489-F, P.P.C at Police Station FIA-AHTC, Islamabad.

1. Briefly, the facts of the prosecution case are that the petitioner extorted an amount of €6000 from complainant's grandson namely Shahzaib Ali in presence of witnesses to send him abroad on work-visa without having any legal authorization. Later on, neither the petitioner sent the complainant's grandson abroad nor returned the money, rather, he dishonestly issued a cheque amounting to Rs.6,00,000/- which was dishonoured when presented for encashment in the concerned bank. Hence, the instant case was registered.

2025 M L D 1107

[Islamabad]

Before Tariq Mehmood Jahangiri and Muhammad Azam Khan, JJ

Mustajab---Appellant

Versus

The State---Respondent

Criminal Appeal No. 321 of 2024, decided on 11th February, 2025.

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

----S. 9(2)3---Possession of narcotic substance---Appreciation of evidence---Infirmities in prosecution evidence---Prosecution case was that 2600 Ecstasy pills were found present in the shopping bag handed over by the accused to the police and 500 intoxicant Ecstasy pills were also recovered from the vehicle parked at the spot---In the instant case, complainant and Investigating Officer was the same, and when the complainant was also Investigation Officer, there was a heightened risk of bias---Complainant, being interested in the outcome of the case, should not be the judge of his own cause---Investigation should ideally be conducted by a different officer to ensure impartiality and fairness---Two sealed parcels containing 2600 intoxicant "Ecstasy Pills" and 500 Intoxicant "Ecstasy Pills" were sent to Forensic Science Agency through a Constable on 15.11.2023 while as per the Forensic Science Agency Report and the statement of Court witness the said parcels were received on 16.11.2023 which depicted that the chain of custody was missing between 15.11.2023 and 16.11.2023---Investigating Officer sent the whole recovered intoxicant "Ecstasy Pills" for chemical analysis to Forensic Science Agency, and after its analysis, which was completed on 22.03.2024, the chemical report was dispatched to the quarter concerned on 01.04.2024 as evident from the statement of the Court witness---From 01.04.2024 till the exhibition of the alleged case property the prosecution had failed to prove the chain of custody---Moharir Malkhana had failed to utter a single word that he received back the case property from the Forensic Science Agency, through a sample bearer---Alleged recovery of intoxicant "Ecstasy Pills" was not effected from the personal search of the accused/appellant---Prosecution had failed to produce any evidence regarding the lawful possession of the flat in question in the shape of any rent agreement or ownership documents---Two sealed parcels i.e. one sealed parcel said to contain 2600 intoxicant "Ecstasy Pills", while another sealed parcel said to contain 500 intoxicant "Ecstasy pills" were sent to Forensic Science Agency but the forensic report revealed something else---As per Forensic Science Agency Report, 2746 pills were present in parcel No. 1 and 468 pills were present in parcel No. 2 which was contradictory to the prosecution case---Circumstances established that the prosecution had failed to prove its case against the accused/appellant, beyond any reasonable doubt---Appeal against the conviction was allowed, in circumstances.

Taj Wali and 6 others v. The State PLD 2005 Kar. 128; Muhammad Iftikhar and another v. The State and others 2022 PCr.LJ 1233; Muhammad Nafees and another v. The State 2021 PCr.LJ 63; Abid Ali v. The State 2022 PCr.LJ 1088 and Arzi Gull and others v. The State and others 2020 PCr.LJ 178 rel.

(b) Criminal trial---

----Benefit of doubt---Principle---If any limb of evidence is found to be dubious, it can indeed be sufficient for the acquittal of the accused, as the prosecution must prove its case beyond reasonable doubt and any reasonable doubt must benefit the accused.

Shan Zeb Khan for Appellant.

Raja Anwar-ul-Hassan, SPP, ANF for the State.

Date of hearing: 28th January, 2025.

Judgment

Muhammad Azam Khan, J.---This Criminal Appeal has been filed by the Appellant against the Judgment dated 12.9.2024 ("Impugned Judgment") passed by the learned Judge Special Court, (CNS), Islamabad, whereby the Appellant was convicted under Section 9(2) 3 of the Control of Narcotic Substances Act, 1997 ("CNSA, 1997") in case FIR No. 201/23 dated 14.11.2023 registered with Police Station ANF-RD, North Rawalpindi and sentenced to undergo three (03) years rigorous imprisonment with fine of Rs. 200,000/- (Two Lacs) and in default whereof to undergo further six (6) months simple imprisonment.

1. Facts of the case, as per the FIR are that on 14.11.2023 during investigation of case FIR No. 200/2023 dated 14.11.2023. registered under Sections 9 (2), (3) and 15 of CNSA, 1997, accused Saad Ramzan and Muhammad Hamza told that Intoxicant "Ecstasy Pills" recovered from them were handed over by Dr. Mustajab ("Accused/Appellant"), resident of Flat No. 1404, Blue Line Capital Residencia, E-11/4, 1slamabad ("Flat") for the purpose of sale. Accused Saad Ramzan and Muhammad Hamza further informed that more Intoxicant "Ecstasy Pills" were available with the Accused/Appellant in his Flat. The permission and direction was sought from the high ups for the purpose of immediate arrest and recovery from the Accused/Appellant. Fawad Ali Khan, S.I./Complainant along with other ANF officials [Muhammad Naveed, Constable, Ghulam Murtaza, Constable, Lady Constable Zahida Gillani], along with sealed property and two accused persons boarded in official Vehicle No. RIG-1177 driven by Sheraz Nazeer, Sepoy and raided at the Flat on the pointation of accused Saad Ramzan around 5:30 hours. Door of the Flat was knocked by Fawad Ali Khan, S.l./Complainant. A person who opened the door spotted the ANF officials and tried to close the door of the Flat but was overpowered by Fawad Ali Khan, S.l./Complainant with the help of accompanied ANF officials. Upon asking his name and address he disclosed his name as Muhammad Mustajab son of Muhammad Jan/Accused/ Appellant resident of Peshawar. During cursory investigation, after some hesitation the Accused/Appellant made disclosure about presence of Intoxicant "Ecstasy Pills" below the sofa seat lying in the gallery of the Flat. The Accused/Appellant himself took out a shopping bag from beneath the sofa seat and handed over the same to Fawad Ali Khan, S.I./Complainant. During checking of the said shopping bag Intoxicant "Ecstasy Pills" in different colours and shapes were found lying in 10 polythene bags as such 2600 Intoxicant "Ecstasy Pills" were found present in the said shopping bags. The recovered 2600, Intoxicant "Ecstasy Pills" were gathered and put into white polythene bag, weighed by Fawad Ali Khan, S.l./Complainant at the spot. The recovered 2600, Intoxicant "Ecstasy Pills" along with packing material were put into white cloth sack and parcel was prepared bearing serial No.1 sealed with the stamp with description of "FAK". The Intoxicated "Ecstasy Pills" were taken into possession through recovery memo. (Ex.PC) for the purpose of chemical analysis, duly attested by witnesses Ghulam Murtaza, Constable and Muhammad Naveed, Constable. Fawad Ali Khan, S.I./Complainant identified his signatures upon recovery memo. of Intoxicant "Ecstasy Pills" as Ex.PC/1 and produced parcel of remaining case property of Intoxicant "Ecstasy Pills" received in sealed form, after chemical analysis from Punjab Forensic Science Agency ("PFSA"), Rawalpindi along with English receipt as Article P-1. During personal search of the Accused/Appellant Pakistani Currency Rs.1,000/- as Article P-2, Mobile Phones as Article P-3 and Article P-4 (02 phones), CNIC in the name of the Accused/Appellant as Article P-5, Purse black in colour as Article P-6, different visiting cards as Article P-7 and ATM Card as Article P-8 were recovered and taken into possession through personal search memo. Ex.PD duly attested by witnesses Ghulam Murtaza, Constable and Muhammad Naveed, Constable. Fawad Ali Khan, S.I./Constable identified his signatures over personal search memo. of the Accused/Appellant as Ex.PD/1. On further search of the Flat no other incriminating material was recovered.

2. During investigation, the Accused/Appellant further disclosed that his vehicle is parked in the parking area of Capital Residencia, E-11/4, Islamabad carrying Intoxicant "Ecstasy Pills" in the dashboard of his vehicle [White coloured Corolla Altis bearing Registration No. BKN-366]. Upon the said disclosure, Fawad Ali Khan, S.I./Complainant along with Ghulam Murtaza, Constable, Muhammad Naveed, Constable, Zahida Gillani, Lady Constable, other ANF officials and two other accused persons of FIR No. 200/2023 and sealed case property reached at the parking area of Capital Residencia, where the Accused/Appellant headed towards his vehicle, brought out a white polythene bag from the dashboard of the vehicle and handed over the same to Fawad Ali Khan, S.I./Complainant. Upon opening and checking 500 Intoxicant "Ecstasy Pills" were recovered. The recovered 500 Intoxicant "Ecstasy Pills" were weighed by Fawad Ali Khan S.l/Complainant at the spot which came out to be 240 grams which along with packing material were put into white cloth sack and parcel given serial No.2 sealed with the stamp description of "FAK" was prepared and taken into possession through recovery memo. Ex.PE along with said vehicle for the purpose of chemical analysis, duly attested by witnesses Ghulam Murtaza, Constable and Muhammad Naveed, Constable. Fawad Ali Khan, S.I./Complainant identified his signatures over recovery memo. of Intoxicant "Ecstasy Pills" as Ex. PE/1. Parcel of remaining case property of Intoxicant "Ecstasy Pills" received in sealed form after chemical analysis from PFSA along with English receipt as Article P-9. The complaint was jotted down and sent to Police Station through Ghulam Murtaza, Constable for registration of FIR. Fawad Ali Khan S.I./Complainant produced Complaint Ex.PA and identified his signature on the Complaint Ex.PA as Ex.PA/2. Accordingly the FIR was registered on 14.11.2023.

3. The Challan was submitted before the Court on 25.3.2024. The charge was framed on the Accused/Appellant on 22.4.2024. The Accused/Appellant pleaded not guilty while claiming trial. The prosecution produced five witnesses and exhibited certain documents and items before closing their evidence. The statement of the Accused/Appellant was recorded under Section 342, Cr.P.C. in which he denied all the allegations levelled against him and specifically stated that the vehicle which was taken into possession through recovery memo. (Ex.PE) was hired by his brother and the same was taken from PIMS Hospital Islamabad by the ANF Authority.

4. Upon conclusion of the trial, the Accused/Appellant was convicted and sentenced, as detailed in para 1 above, which necessitated him to file the instant appeal.

5. The learned counsel for the Accused/Appellant submitted that there are contradictions in the statements of the prosecution witnesses with regard to the date of sample parcels received in PFSA, Rawalpindi, whole quantity of recovered substance was not consumed and even the samples were not collected from each and every tablet. The learned counsel for the appellant further argued that the prosecution produced Chemical Examiner as CW-1 in a bid to fulfil the lacunas mentioned above. The learned counsel further argued that the element of safe transmission of narcotics to PFSA, Rawalpindi, contradiction qua sample parcels, number of sample parcels and certain other infirmities put dent in the prosecution case. In the last he requested for the acquittal of the accused from the charge.

6. The Special Public Prosecutor ANF argued that the charge against the Accused/Appellant is proved beyond any reasonable doubt by producing various categories of evidence which includes ocular evidence, substantial evidence and recovery evidence coupled with the positive report from PFSA, Rawalpindi. The evidence produced by the prosecution confirmed the presence and recovery of narcotics from the possession of the accused hence the evidence supports the charge under Section 9 (2) (6) of the CNSA, 1997 against the Accused/Appellant Muhammad Mustajab. The learned Special Public Prosecutor, ANF emphasized that the Accused/Appellant is habitual offender involved in the sale of drugs and was found in keeping huge quantity of Intoxicant "Ecstasy pills" for the purpose of sale. In the last he requested that the Accused/Appellant has rightly been convicted by the learned Trial Court and appeal merits dismissal.

7. Arguments heard, record perused.

8. In order to prove the factum of recovery of Intoxicant "Ecstasy" pills from the possession of the Accused/Appellant, the prosecution was under obligation to prove that on 14.11.2023, pursuant to disclosure of accused persons namely Saad Ramzan and Muhammad Hamza arrested in another case FIR No. 200/2023 dated 14.11.2023, that the Accused/Appellant was apprehended around 5:30 hours from his Flat and from his possession total 2100 Intoxicant "Ecstasy pills" were recovered. After disclosure the Anti-Narcotics Force ("ANF") raided the said premises and apprehended the Accused/Appellant and recovered 2600 Intoxicant "Ecstasy pills" of different colours, shape and nature beneath the Sofa seat. Upon further disclosure of Accused/Appellant 500 Intoxicant "Ecstasy pills" were recovered from the dash-board of vehicle which was parked in the parking area of Capital Residencia. The recovery of Intoxicant "Ecstasy pills" i.e. 2600 tablets weighing 1620 grams and 500 Intoxicant "Ecstasy pills" total weighing 240 grams were taken into possession. I.O Fawad Ali Khan S.I/Complainant (PW-4) after weighing the same prepared parcels and recovery memos. Exh. PC and PE duly signed by the recovery memo. witnesses namely Ghulam Murtaza, Constable (PW-5) and Muhammad Naveed, Constable. He scribed the complaint and sent to police station through Ghulam Murtaza, Constable (PW-5) for registration of FIR. In the meanwhile, Ghulam Murtaza, Constable brought copy of FIR and original complaint to the place of occurrence. The Accused/Appellant was formally arrested. He prepared un-scaled site plan Ehx. PF. Upon his arrival at the police station, the Accused/Appellant was confined in lock-up, case property and articles of personal search according to recovery memos. were handed over to Arshad Mehmood Janjua, ASI, Mohrrar Maalkhana, (PW-2) and Amir Shahzad, ASI, Duty Officer (PW-1). On 15.11.2023 the parcels were sent to PFSA Rawalpindi for chemical analysis through Constable Muhammad Irshad, Constable (PW-2).

9. Amir Shahzad, Duty Officer, (PW-1) after receiving the complaint, reduced it into FIR No. 201/2023 Exh. PB, and handed over carbon copy of FIR and original complaint to Ghulam Murtaza, Constable (PW-5) and took the same to Fawad Ali Khan, S.I./Complainant (PW-4) for investigation. Arshad Mehmood Janjua, ASI, (PW-2) stated that on 14.11.2023 he received one sealed parcel from S.I. Fawad Ali Khan S.I./Complainant to contain 2600 Intoxicant "Ecstasy pills" weighing 1620 grams, another seal parcel said to contain 500 Intoxicant "Ecstasy pills" weighing 240 grams with the seal of "FAK".

10. Similarly, vehicle bearing Registration No. BKN-366 along with key and articles of personal search of the Accused/Appellant according to personal search memos. were handed over to him. He made entries in register No. 19. On 15.11.2023 he handed over two sealed parcels said to contain 2600 Intoxicant "Ecstasy pills" weighing 1620 gram, another sealed parcel said to contain 500 Intoxicant "Ecstasy pills" weighing 250 grams, to Muhammad Irshad, Constable (PW-3) along with Road Certificate for onward transmission to the office of PFSA, Rawalpindi, who after depositing the same in PFSA Rawalpindi, handed over back the receiving.

11. Muhammad Irshad, Constable (PW-3) stated that on 15.11.2023 being posted at police station ANF, RD North Rawalpindi, Fawad Ali Khan, S.I/Complainant handed over to him docket in English, sealed sample, copy of FIR and directed him to collect sealed sample parcel of the instant case from Mohrrar Maalkhana for onward transmission to the office of PFSA, Rawalpindi. On the same date i.e. 15.11.2023, Arshad Mehmood Janjua, ASI, Moharrar Maalkhana (PW-2) handed over to him two sealed parcels containing 2600 Intoxicant "Ecstasy pills" and 500 Intoxicant "Ecstasy pills" respectively. He deposited the parcels in the office of PFSA, Rawalpindi and during that period the parcels remained in his custody and remained completely intact. After depositing the same he handed over back the receiving of Road Certificate to Arshad Mehmoood Janjua ASI, Moharrar Maalkhana (PW-2). Ghulam Murtaza, Constable (PW-5) is the marginal witness of recovery memos. prepared by the I.O who confirmed that he is the recovery memo. witness on the recovery memos, which correctly bears his signatures.

12. Umer Sharif Ali, Forensic Scientist Narcotics, PFSA, Lahore was examined as CW-I, who stated that on 16.11.2023 two parcels were received through Muhammad Irshad Constable (PW-3) by their Rawalpindi Regional Collection Centre. The said two parcels were sent to their Lahore Main PFSA Headquarter on 23.11.2023. On 28.11.2023 chemical examination of said parcels was assigned to him by the concerned Section Supervisor Narcotics. On 25.01.2024 he started chemical examination of the said parcels and ultimately on 22.03.2024 chemical analysis of both the parcels was completed. On 01.04.2024 the chemical report was dispatched to the quarter concerned. He verified his signatures on PFSA reports already produced before the Court as Exh. PG, Exh. PH and Exh. PJ.

13. The prosecution closed his evidence and statement of the Accused/Appellant under section 342, Cr.P.C. was recorded in which he categorically denied the charge against him and stated that he is MBBS doctor by profession and performing his duty in PIMS Hospital, Islamabad. He further stated that the accused Muhammad Hamza and Saad Ramzan were his patients and 2 to 3 days back they came to PIMS Hospital for check-up, during that some harsh words were exchanged between them due to which he has been falsely booked in the instant case.

14. In the instant case complainant and Investigating Officer is the same i.e. Fawad Ali Khan (PW-4), and when the complainant is also Investigation Officer, there is a heightened risk of bias. The complainant, being interested in the outcome of the case, should not be the judge of their own cause. This concern has been highlighted in various judgments, emphasizing that the investigation should ideally be conducted by a different officer to ensure impartiality and fairness. As per the dictum laid down by the Hon'ble Superior Court reported as Taj Wali and 6 others v. The State (PLD 2005 Karachi 128)

15. Secondly two sealed parcels containing 2600 Intoxicant "Ecstasy pills" and 500 Intoxicant "Ecstasy pills" were sent to PFSA through Muhammad Irshad, Constable (PW-3) on 15.11.2023 while as per the PFSA report and the statement of CW-I the said parcels were received on 16.11.2023 which depicts that the chain of custody is missing between 15.11.2023 and 16.11.2023. In this regard reliance is placed upon the case of Muhammad Iftikhar and another v. The State and others (2022 PCr.LJ 1233) and Muhammad Nafees and another v. The State (2021 PCr.LJ 63).

16. Thirdly the Investigating Officer sent the whole recovered Intoxicant "Ecstasy pills" for chemical analysis to PFSA, Rawalpindi and after its analysis which was completed on 22.03.2024 the chemical report was dispatched to the quarter concerned on 01.04.2024 as evident from the statement of the CW-I. From 01.04.2024 till the exhibition of the alleged case property the prosecution has failed to prove the chain of custody. The prosecution witness i.e. Mohrrar Malkhana (PW-2) had failed to utter a single word that he received back the case property from the PFSA, Rawalpindi through a sample bearer. Reliance is placed upon the case of Abid Ali v. The State (2022 PCr.LJ 1088) and Arzi Gull and others v. The State and others (2020 PCr.LJ 178).

2025 M L D 1127

[Islamabad]

Before Babar Sattar and Arbab Muhammad Tahir, JJ

Ajmal Shah---Appellant

Versus

The State---Respondent

Criminal Appeal No. 129 of 2023, decided on 4th March, 2025.

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

----S. 9(c)---Possession of narcotic substances---Appreciation of evidence---Ocular account of the incident proved---Prosecution case was that 12 kilograms charas in ten packets was recovered from the secret cavity of the vehicle driven by the accused---Two witnesses recorded their statements as recovery witnesses before the Trial Court---In the statement of said witnesses, it was mentioned that after recovery of narcotic substance, 10 packets wrapped in khaki insulation tape and polythene bags total weighing 12 kilograms, were packed in one parcel No.11, after separating 10 sample parcels bearing number 01 to 10 (01 sample parcel from each recovered packet)---Reports of Chemical Examiner showed that it had received 10 parcels for the purposes of chemical examination---Perusal of the statements of said two witnesses, as well as the order sheets of the said dates, did not mention that the parcel was de-sealed in the Court and all ten packets which were recovered from the accused were exhibited and numbered---Circumstances established that the prosecution had proved its case, however, the sentence of life imprisonment awarded to the appellant was harsh as compared to the quality of evidence available on record, therefore the sentence of the appellant was reduced to the period already undergone by him---Appeal against conviction was dismissed with modification in sentence.

Amjad Saddique v. The State 2016 PCr.LJ 1800 and Aziz Ullah through Legal Heirs v. Muhammad Haneef through Legal Heirs PLD 2018 Lah. 132 rel.

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

----S. 9(c)---Possession of narcotic substances---Appreciation of evidence---Sentence, quantum of---Prosecution case was that 12 kilograms charas in ten packets was recovered from the secret cavity of the vehicle driven by the accused---Accused was a first offender and was earlier not involved in any other criminal case---Trial Court while awarding the maximum punishment of life imprisonment for possessing 12 kilograms of charas under S.9(c) of the Act of 1997 did not consider this fact---On the other hand, the ocular testimony of the prosecution witnesses remained consistent and their credibility was not undermined---No evidence was on record to suggest that the case property, specifically the narcotic substance, was not handled in accordance with legal procedures---Ten sample parcels were duly separated from the ten recovered packets of narcotic substance and delivered to the Chemical Examiner on the following day after their recovery---Chemical Examiner's reports were conclusive and confirmed the recovered substances to be "charas"---Thus, it was concluded that the appellant's conviction did not call for interference---However, the sentence of life imprisonment awarded to the appellant was harsh as compared to the quality of evidence available on record, therefore, the sentence of the appellant was reduced to the period already undergone by him---Appeal against conviction was dismissed with modification in sentence.

Ameer Zeb v. The State PLD 2012 SC 380 rel.

Rana Raza Tariq and Mujahid Khan for Appellant.

Rana Zulfiqar Ali, Special Prosecutor ANF for the State.

Date of hearing: 30th January, 2025.

Order

Arbab Muhammad Tahir, J.---Through the instant appeal, the appellant (Ajmal Shah) has impugned judgment, dated 26.01.2023, passed by the learned Special Court (CNS), Islamabad, whereby the appellant has been convicted under section 9(c) of the Control of Narcotic Substances Act, 1997 (hereinafter "Act of 1997") in FIR No.43/2019, dated 24.02.2019, registered under sections 9(c) and 15 of the Act of 1997, at Police Station ANF RD North, Rawalpindi and sentenced in the following terms.-

"For the reasons stated, this court has come to the conclusion that the prosecution has succeeded in proving the charge against accused Ajmal Shah son of Saif Ur Rehman, beyond the shadow of reasonable doubt. Therefore, this court found accused Ajmal Shah, son of Saif Ur Rehman, resident of Dawoodzai Nehaqi Tehsil and District Peshawar guilty of the offence under section 9(c) CNSA, 1997 for keeping in his possession charas weighing 12 kilograms. So, accused Ajmal Shah son of Saif Ur Rehman, is hereby convicted under section 9(c) CNSA, 1997 and sentenced to Rigorous Imprisonment for Life, with fine of Rs.100,000/- (Rupees One Hundred Thousand only). In default in payment of fine, the convict shall further undergo (Five) 05 months Simple Imprisonment. The benefit of Section 382-B, Cr.P.C. shall be extended to the convicted."

1. Succinctly, the facts are that on complaint (Exh.PA) of Raja Shoaib Ahmed, Inspector (PW-4), the FIR (Exh.PB) was registered wherein it was alleged that on 24.02.2019, he received spy information that the appellant (Ajmal Shah), who works for notorious drug smuggler Momin Khan (since proclaimed offender), has departed from Peshawar towards Islamabad along with heavy quantity of contraband in Toyota Hiace bearing registration No.LES-1110 (Exh.P2) and if reasonable measures are adopted, he can be arrested along with the contraband. Beliving the spy information credible, Raja Shoaib Ahmed, Inspector (PW-4) constituted a raiding party headed by him, associating Muhammad Imran, Constable (PW-5) and Murtaza Khan HC (not examined as PW). The raiding party reached at railway crossing Tarnol at about 12:45 p.m. and started surveillance. At about 01:00 p.m., the offending vehicle arrived and at the pointation of the spy, who was accompanying the raiding party, the vehicle was intercepted. The person driving the vehicle disclosed his name as Ajmal Shah (appellant). Upon cursory interrogation, he disclosed concealment of the charas in a secret cavity under the second seat, behind the driver's seat. The secret cavity was opened with the tools available with the Investigating Officer, from which ten packets (each weighing 1200 grams charas, total weighing 12 kilograms) wrapped in khaki solution tape were recovered. The Investigating Officer separated 10 sample parcels (10 grams each), one from each packet. One separate parcel was prepared from the total remaining narcotic substance. The recovered narcotic substance along with the offending vehicle were taken into possession vide recovery memo. (Exh.PC). The search of dashboard of the vehicle led to the recovery of registration book of the vehicle and colour copy of CNIC of the accused-Momin Khan, which were taken into possession vide recovery memo. (Exh.PD). Complaint was drafted and dispatched from the crime scene to the police station for registration of FIR through Shahid Iqbal, Driver (not produced as witness), upon which Rawaiz Khan, HC (PW-2) chalked out the FIR (Exh.PB). Uns-caled site plan (Exh.PE) was prepared at the spot. The appellant was arrested at the spot and shifted to the police station along with the recovered articles. The case property was handed over to Abdul Razzaq, HC (PW-1) for safe custody. On 25.02.2019, Rizwan Zafar (PW-3) delivered the sample parcels to the NIH for chemical examination. The appellant was remanded to judicial custody on 27.02.2019.

2. The appellant was formally charge sheeted on 16.09.2020 to which he pleaded not guilty and claimed trial. The prosecution produced five witnesses i.e. Abdul Razzaq, HC (PW-1), Rawaiz Khan, HC (PW-2), Rizwan Zafar, Constable (PW-3), Raja Shoaib Ahmed, Inspector (PW-4) and Muhammad Imran, Constable (PW-5). The report of chemical examiner was adduced as Exh. PF and PG, alongside other incriminating material. The statement of appellant under section 342, Cr.P.C was recorded on 14.01.2023. The appellant did not opt to record his statement under section 340(2), Cr.P.C. On conclusion of trial, the learned trial court convicted and sentence the appellant in the terms reproduced in paragraph 1.

3. Learned counsel for the appellant has argued that the prosecution has miserably failed in proving its case; that the original FIR was not exhibited in evidence; that the carbon copy of the FIR was exhibited as Exh.PB without permission of the court; that no evidence was collected to establish nexus of the appellant with Momin Khan (since P.O.); that no evidence was produced to prove conscious knowledge of the appellant regarding the secret cavity; that the owner of the vehicle was neither interrogated nor any evidence regarding ownership of the vehicle was collected during investigation nor produced before the court to prove mens rea; that the Investigating Officer admitted before the court that no previous criminal record of the appellant exists, meaning thereby that he was first offender; the report of chemical examiner was not confronted to the appellant in his statement under section 342, Cr.P.C.; the conviction and sentence awarded to the appellant vide the impugned judgment is liable to be set aside; that the case is one of acquittal.

4. On the other hand, the learned Special Prosecutor, ANF supported the impugned conviction and sentence and has argued that the prosecution has proved its case against the appellant beyond a reasonable doubt; that huge quantity of contraband was recovered from possession of the appellant; that minor irregularities or contradictions in statement of witnesses does not entitle the appellant to any relief.

5. Heard. Record perused.

6. It is the case of prosecution that on 24.02.2019, the appellant was apprehended along with 12 kilograms of charas, concealed in a secret cavity of the vehicle in his control. Raja Shoaib Ahmed (PW-4) and Muhammad Imran (PW-5) recorded their statements as recovery witnesses before the trial court. It is in the statement of PWs 4 and 5, that after recovery of narcotic substances, 10 packets wrapped in khaki insulation tape and polythene bags total weighing 12 kilograms, the same was packed in one parcel No.11, after separating 10 sample parcels bearing number 01 to 10 (01 sample parcel from each recovered packet). The reports of Chemical Examiner (Exh.PF&PG) show that it has received 10 parcels for the purposes of chemical examination. The relevant portion of examination-in-chief of PW-4 relating to the manner in which the recovered contraband was produced in evidence before the trial court is as follows.-

"Sample parcels, parcel of remaining case property Exh.P-1, vehicle LES-1110 Exh.P2 along with key Exh.P-3, registration book Ex.P-4 and colour copy of CNIC of Momin Khan Exh.P-5 were taken into possession by me through recovery memo. Exh.PC witnessed by Murtaza Khan HC and Muhammad Imran Constable."

1. It is noted that examination-in-chief of both the PWs 4 and 5 was recorded on 10.10.2022 and they were cross-examined on 20.12.2022. The order sheets of the trial court in the instant case for the referred dates is reproduced below.-

10.10.2022.

"PWs Raja Shoaib Ahmed and Muhammad Imran are present for evidence and their examination in chief recorded as PW-4 and PW-5 respectively but their cross-examination could have been reserved on the request of learned counsel for the accused. PP given to the present PWs. PW Murtaza Khan is also present. Prosecution is directed to produce its witnesses on the next date. SHO is directed to ensure the availability of case property on the next date. To come up on 18.10.2022 and file be put up for prosecution evidence."

20.12.2022.

"PWs Raja Shoaib Ahmed and Muhammad Imran are present for cross-examination and their cross-examination completed. Learned SPP gave up PW Murtaza Khan HC being unnecessary and close the prosecution evidence. To come up on 03.01.2023 and file be put up for recording the statement of accused under section 342, Cr.P.C. on the next date fixed."

1. Perusal of the statements of PWs 4 and 5 as well as the order sheets of the said dates, do not mention that the parcel Exh.P1 was de-sealed in the Court and all 10 packets which were recovered from the appellant were exhibited and numbered. The learned Lahore High Court in the case titled "Amjad Saddique v. The State" (2016 PCr.LJ 1800 Lahore) has explained the expression "exhibit" in the following manner.-

"In this connection we may observe that word "exhibit" is legally defined as bring forward, bring to light, bring to notice, bring to view, demonstrate, disclose, display, evidence, evince, exhibere, exponere, expose, express, feature, indicate, lay bare, lay open, make clear, make known, make obvious, make plain, manifest, offer for inspection, open up, point out, present, present for consideration, present to view, produce, proponere, reveal, reveal to public notice, set forth, show, submit in evidence, uncover, unveil.

Definition of "exhibit" is given in Duhaime's Law Dictionary is as under:

"Exhibit: a document or thing produced for inspection of the Court; or shown to a witness when giving evidence or referred to in deposition; or a document referred to in, but not annexed to, an affidavit."

The word "exhibit" defined in Black's Law Dictionary, is as under:-

"A document, record or other tangible object formally introduced as evidence in Court".

The meaning of exhibit mentioned in Collins English Dictionary is as under:-

"is a document or object produce in the Court and referred to or identified the witness given evidence".

Whereas in Chambers English Dictionary it is defined as under:-

"to hold forth or present to view; to present formally or publically; to show; to give as a remedy----n, a document or objects produced in Court to be used a evidence (law); something exhibited; and articles at an exhibition."

1. In the case titled "Aziz Ullah through Legal Heirs v. Muhammad Haneef through Legal Heirs" (PLD 2018 Lahore 132), the expression "exhibit" has been explained as follows.-

"Before embarking upon merits of the case, it is necessary and appropriate to assimilate the true meaning and purport of word "Exhibit" as well as its object and effect. After consulting various dictionaries, I have come to the conclusion that it means a document or tangible object produced before the Court for its inspection or shown to a witness while giving evidence or referring the same in his deposition so that it could be taken into possession and retained by the Court on the lis file for reference as well as identification in the judgment and when a party intends to prove a document through witnesses, he only refers that document for its proof, then the Court exhibits the same. The witness has no role in marking the document as exhibit rather it is the sole duty of the Court to assign exhibit number to it so that in the latter part of the proceedings it may be referred and identified from said number, so ex hypothesi exhibit means a document exhibited for the purpose of being taken into consideration in deciding some question or other in respect of proceedings in which it is filed."

1. Sub-rule (1) of rule 22.16 of the Police Rules, 1934 (hereinafter the "Rules"), provides that certain circumstances, police shall seize weapons, articles and property in connection with criminal cases, and take charge of property which is unclaimed. Sub-rule (2) thereof provides, inter alia, that each weapon, article or property (not being cattle) seized under the above sub-rule shall be marked or labelled with the name of the person from whom, or the place where, it was seized, and reference to the case diary or other report submitted from the police station. If articles are made up into a parcel, the parcel shall be secured with sealing wax, bearing the seal impression of the responsible officer, and shall similarly be marked or labelled. Such articles or parcels shall be placed in safe custody, pending disposal as provided by law or rule. Sub-rule (3) thereof provides, inter alia, that the police shall send to headquarters or to magisterial outposts all weapons, articles and property connected with cases sent for trial, as well as suspicious, unclaimed and other property, when ordered to do so by a competent Magistrate.

2. High Court Rules and Orders, Volume III, Part B of Chapter 24 deals with the "trial of the Sessions cases". Rules 14-E, 14-F and 14-H are reproduced below for ready reference.-

"14-E. Custody of other articles. - Similar care is often required in tracing the custody of prisoner's substances, personal food, blood-stained clothes etc. The evidence should never leave it doubtful as to what person or persons have had charge of such articles throughout the various stages of the inquiry if such doubt can be cleared up. This is especially necessary in the cases of articles sent to the Chemical Examiner. The person who packs, seals and dispatches such articles should invariably be examined.

14-F. Every article to be produced. Clothes, weapons, money, ornaments, food and every article which forms a part of the circumstantial evidence should be produced in Court and their connection with the case and identity should be proved by witnesses.

14-H. Exhibits.- All exhibits should be marked with a letter or numbers, Articles which are produced in evidence should have a label attached to them bearing a number, and that number should be quoted throughout the record wherever any such article is referred to and should be distinctly marked as "admitted or not admitted". If the exhibits have already been assigned numbers by the police, that series of numbers should be mentioned to avoid confusion. A printed label should be affixed or attached to each exhibit containing the following particulars:-

(i) Number of exhibit

(ii) Produced by

(iii) Admitted (Signature of Court)

(iv) Date

(v) Case

(vi) Description of exhibits.

The Sessions Judge, should see that these entries are properly made.

1. As per rule 14-H of the Rules, reproduced above, the case property after de-sealing should have been specifically marked with letter or numbers so that the same could be referred by the said number in the entire proceedings to follow. In the instant case, the learned trial court "presumed" that the parcel (Exh.P1) may have contained the 10 packets of recovered contraband without causing the same to be de-sealed and actually exhibited to public view including the accused/appellant. Whereas, after the case property is exhibited in the open court, it is again sealed with seal of the Court and such fact is incorporated in the evidence as well as the order sheet. This procedure is adopted to preserve the case property for its production before the appellate forum, if so required.

2. Article 10A of the Constitution of the Islamic Republic of Pakistan, 1973 guarantees the right of fair trial and due process. It mandates that whenever a person is tried, it shall be within the four corners of law. The Court has to keep in mind that the criminal proceedings may culminate in conviction and it is the accused facing trial whose liberty is to be curtailed by sending him to prison to serve out a sentence of imprisonment. The Court must, therefore, satisfy its judicial conscience that it is the same case property, which was recovered from the accused by observing, inter alia, its seals, quantity and description as per the case of prosecution. Similarly, in order to prove its case, the prosecution must exhibit before the trial court all incriminating material connecting the accused with the commission of offence. The prosecution as well as the trial court shall not wait for a request from the defence/accused for de-sealing of the parcel so that the case property sealed therein be exhibited in the Court. The court shall not base its findings on the basis of presumption that a parcel which was exhibited in the Court without opening its seals, may have contained incriminating material therein. In the case titled "Ameer Zeb v. The State" (PLD 2012 SC 380), the Hon'ble Supreme Court observed that it is the accused person who is at the receiving end of long and stringent punishments and, thus, safeguards from his point of view ought not to be allowed to be sacrificed at the altar of mere comfort or convenience of the prosecution. In the referred case, it was also observed that the rule of thumb for safe administration of criminal justice is: "The harsher the sentence the stricter the standard of proof".

3. In the present case, it nowhere gleans out from the record that the parcel (Exh.P1) was de-sealed or its contents i.e. 10 packets of contraband were opened to public view/exhibited nor such packets were separately marked.

4. The Investigating Officer, Raja Shoaib Ahmed (PW-4), admitted in his cross-examination that he did not investigate the fact of ownership of the offending vehicle (Exh.P2), wherein the contraband was concealed in the secret cavity. In order to prove conscious knowledge of the appellant and his connection with the narcotic substance recovered from the offending vehicle, it was incumbent upon the Investigating Officer to have investigated the fact of ownership of such offending vehicle. Investigating the ownership of the vehicle was essential to determine the question of conscious knowledge, whether it was the appellant who himself concealed the contraband in the vehicle or the contraband was concealed by the owner keeping the appellant in dark.

5. In order to establish connection of appellant with Momin Khan (allegedly the notorious drug dealer); the prosecution ought to have brought on record reliable evidence. Raja Shoaib Ahmed, Inspector (PW-4), who was the Investigating Officer of the case, admitted in his cross-examination that he did not make any effort to obtain the CDR of cellular mobile numbers of the appellant and Momin Khan or collected any other evidence to prove that both of them were connected and aligned for the commission of offence.

2025 M L D 1315

[Islamabad]

Before Muhammad Azam Khan, J

Saeed Zahir Zada---Petitioner

Versus

Federation of Pakistan through Secretary Ministry of Interior and another---Respondents

Writ Petition No. 3680 of 2024, decided on 8th April, 2025.

National Database and Registration Authority Ordinance (VIII of 2000)---

----S. 18 & Preamble---Pakistan Citizenship Act (II of 1951), S. 169 & Preamble---Computerized National Identity Card (CNIC), blocking of---Legality---Citizenship of person, determination of---Competent authority---Petitioner sought direction from the High Court to National Database and Registration Authority (NADRA) to unblock his Computerized National Identity Card (CNIC)---Petitioner pleaded that his CNIC had been blocked by the National Database and Registration Authority (NADRA)---Respondents contended that the petitioner had obtained CNIC by unfair means by committing fraud and concealing the facts at the time of processing of his CNIC by posing himself as citizen of Pakistan---Validity---Pursuant to the report received by the NADRA from the intelligence agency, the CNIC of the petitioner was digitally, impounded on the basis of mere suspicion and doubt nothing in the said report could establish the alleged fraud and misrepresentation on the part of the petitioner---Therefore, when a right is accrued to any person, the same could not be taken back, withheld, and/or stripped away without adhering to due process of law; such right could not be taken away on mere suspicious or feeble grounds---Moreover, the CNIC of the petitioner was digitally impounded on the solitary report of the agency, wherein it was alleged that the petitioner had obtained his CNIC by unfair means, committing fraud and concealing the facts by posing himself as citizen of Pakistan at the time of processing of his CNIC---Such stance taken by NADRA held no veracity as neither NADRA nor any intelligence agency was competent under the law to determine the citizenship of a person---All matters relating to or in connection with the citizenship of a person were covered and dealt with under the Citizenship Pakistan Act solely, whereas the Ordinance 2000 provided for the registration of all persons and for the establishment and maintenance of a multipurpose database, data warehouses, etc.---NADRA under the Ordinance 2000 did not have the jurisdiction to initiate proceedings, whereby the eligibility of a person to hold CNIC based on his/her citizenship could be interrogated---Determination of eligibility, relating to a person's citizenship, fell strictly within the exclusive jurisdiction of the competent authority under the Pakistan Citizenship Act, particularly Section 16 read with the Pakistan Citizenship Rules, 1952---Therefore, any action under Section 18(2)(a) of the Ordinance, 2000, concerning eligibility linked to citizenship, must be based on a prior determination by the competent authority---NADRA under Ordinance, 2000 cannot block, suspend, impound or confiscate a CNIC on citizenship-related grounds unless a prior judicial order or final determination by the competent authority had been made under Section 16 of the Citizenship Act---In such circumstances, NADRA could initiate appropriate proceedings before the competent authority i.e., the Federal Government under the Pakistan Citizenship Act---Respondents were also directed to provide fair opportunity to the petitioner keeping in view fundamental rights and international obligations---Petitioner was also directed to comply with proceedings so that his grievances could be redressed amicably by the competent authority---NADRA under Ordinance, 2000 was directed to restore the CNIC of the petitioner for the time being till the decision of the Federal Government upon the application of the petitioner---Petition was partly allowed.

Fatima v. National Database and Registration Authority through Director General, PLD 2022 Bal. 73; Hafiz Hamdullah Saboor v. Government of Pakistan through Secretary Ministry of Interior, Islamabad, PLD 2021 Isl. 305; Abdul Qadir v. Federation of Pakistan and others 2024 MLD 1774 and Hafiz Awais Zafar v. Judge Family Court, Lahore and 2 others PLD 2022 Lahore 756 rel.

Hafiz Shoaib Muhammad for Petitioner.

Raja Zamir-ud-Din, A.A.G. for Respondents.

Taimur Janjua, State Counsel.

Malik Muhammad Khaliq Advocate, on behalf of NADRA.

Assisted by Ms. Amna Danial Khawaja, Law Clerk.

Date of hearing: 18th March, 2025.

Judgment

Muhammad Azam Khan, J.--- Through the instant writ petition, Saeed Zahir Zada ("Petitioner") seeks direction to NADRA to unblock his CNIC No.42501- 1429824-7.

1. The brief facts of the case in hand as per memo. are that the Petitioner holds a Computerized National Identity Card No.42501-1429824-7. About six months ago, he came to know that his CNIC had been blocked. He frequently visited the office of Respondent No.2 and inquired regarding blocking of his CNIC, but to no avail. He also sent application to the Chairman of Respondent No.2, however, no response was given to him on the said application. Hence, the present petition.

2. The learned counsel for the Petitioner argued that blocking of CNIC by Respondent No.2 is illegal and without any lawful justification whatsoever; that it has been provided under Section 18 of National Database and Registration Authority Ordinance, 2000 that Respondent No.2 can only block one's CNIC under the circumstances given in the said section; that none of the said circumstances are attracted to the Petitioner; that blockage of CNIC of the Petitioner is in violation of his fundamental rights; that Petitioner has no alternative remedy except invoking this Court's jurisdiction under Article 199 of the Constitution. The counsel prays for immediate unblocking of the CNIC of the Petitioner.

3. On behalf of the Respondents, it is submitted that the Petitioner has not come to the court with clean hands; that Petitioner has already filed Writ Petition No.2735/2024 with same cause/nature which is pending before Honorable Bench-VII of this court; that Petitioner has obtained CNIC by unfair means, committing fraud and concealing the facts at the time of processing of his CNIC by posing himself as citizen of Pakistan; that the CNIC No.42501-1429824-7 of the Petitioner was initially digitally impounded on basis of court order dated 05.10.2021; that on 12.04.2023, Regional Head Office Karachi reported the Petitioner and his family as Alien (non-national) through letter No.NADRA/M&E/Veri-12/2023/28727; that on basis of this report, show-cause notice was issued to the Petitioner to appear before Regional Verification Board along with supporting documents prior to 1979 as per Ministry of Interior Notification for clearance of their national status, however, the Petitioner and his family did not appear before the NADRA Verification Board within stipulated time due to which, their CNICs were digitally impounded in Alien category; that Petitioner may kindly be directed to avail an alternate remedy to appear before NADRA Zonal Verification Board along with supporting documents prior to 1979 as per MOI notification. That the instant petition is not maintainable and liable to be dismissed.

4. I have heard the learned counsel for the parties and have also perused the record with their able assistance.

5. The admitted facts are that the Petitioner was duly registered by the Authority under the National Database and Registration Authority Ordinance, 2000, after he had applied for issuance of his respective CNIC in accordance with the prescribed procedure and fulfillment of the mandatory requirements. The registration was followed by the issuance of his CNIC, which duly acknowledged the crucial fact that the Petitioner was citizen of Pakistan. The CNIC of the Petitioner was initially blocked on the basis of Court order dated 05.10.2021 in case FIR No.2/20 of P.S Kohsar, Islamabad. Furthermore, the show-cause notice under Section 18 of NADRA Ordinance, 2000 was also served on 11.10.2021. The learned Judicial Magistrate Islamabad vide order dated 24.09.2024 unblocked the CNIC of the Petitioner in the said FIR, and the same was provided by the latter in response to the abovementioned show-cause notice. On 12.04.2023, Regional Head Office Karachi Reported that the Petitioner and his family are alien (non-national) through letter No.NADRA/M&E/Veri-12/2023/28727 and on basis of this report, show-cause notice dated 03.05.2023 was issued to the Petitioner for appearance before the Regional Verification Board along with supporting documents prior to 1979 as per Ministry of Interior Notification dated 19 April, 2017. The Petitioner and his family failed to appear before the NADRA Verification Board within the stipulated time and due to their non-appearance, CNICs were digitally impounded in alien category.

6. Before delving deeper into the legal facets of the matter, it is pertinent to determine herein whether the intelligence agencies are competent to report the factum of citizenship to the Authority, especially keeping in view that the Petitioner was duly issued his respective CNIC, thereby acknowledging his citizenship of Pakistan. Citizenship is a basic fundamental human right, as it grants access to all other rights. Without it, a person becomes stateless, stripped of his dignity and recognition, left without protection or belonging in the society. Pursuant to the report received by the Authority from the agency, the CNIC of the Petitioner was digitally impounded on the basis of mere suspicion and doubt; nothing in the said report could establish the alleged fraud and misrepresentation on the part of the Petitioner. Therefore, when a right gets accrued upon any person, the same cannot be taken back, withheld, and/or stripped away without adhering to due process of law; such right cannot be taken away on mere suspicious or feeble grounds. In this regard, reliance is placed on Fatima v. National Database and Registration Authority through Director General, PLD 2022 Balochistan 73 wherein it has been held that: -

"The authority/respondent issued CNIC after fulfilling all codal and legal formalities which creates a right to the petitioner. Such right cannot be taken away on suspicious or flimsy grounds. When a right accrued to any person the same cannot be withheld or taken away without due process of law. Under the law the burden of proof lies on respondent to prove that petitioner is not citizen of Pakistan. Mere verbal assertion cannot be a ground to deprive a person from his fundamental rights. The right which is guaranteed by the Constitution cannot be taken away by notification."

Moreover, the CNIC of the Petitioner was digitally impounded on the solitary report of the agency, wherein it was alleged that the Petitioner had obtained his CNIC by unfair means, committing fraud and concealing the facts by posing himself as citizen of Pakistan at the time of processing of his CNIC. Such stance taken by Respondent No. 2 holds no veracity as neither NADRA nor any intelligence agency is competent under the law to determine the citizenship of a person. In the case of Hafiz Hamdullah Saboor v. Government of Pakistan through Secretary Ministry of Interior, Islamabad, PLD 2021 Islamabad 305, the Honorable Islamabad High Court appropriately held that: -

"As would be discussed later in more detail, the Authority nor the intelligence agencies are competent to determine the question of citizenship of a person…This Court has consistently observed that the Authority was bereft of jurisdiction to adjudicate upon a question which involves the determination of the status of a person as a citizen of Pakistan and that too, on the basis of reports received from intelligence agencies which are under the control of the Government."

Shedding light on the mechanism, arbitrarily adopted by the Authority, of relying upon the reports rendered by the intelligence agencies, the Honorable Islamabad High Court further stated the following: -

"The respective agencies had reported that the petitioners were not citizens of Pakistan. The Authority issued notices. Perusal of the notices shows that particulars of the petitioners were filled in a pre-published standard form. Without disclosing the material to the petitioners and denying them the right of response on the touchstone of the principles of due process, the Authority either blocked or in some cases cancelled the CNICs of the petitioners. In a perfunctory manner the petitioners were deprived of being citizens of Pakistan merely because an intelligence agency had reported so. Despite the devastating impact of rendering the petitioners stateless, no reasoned order was passed by the Authority. The sole ground for blocking or cancellation of the CNICs of the petitioners was that they had falsely declared themselves as citizens of Pakistan."

1. The record ostensibly shows that the show-cause notices dated 11.10.2021 and 03.05.2023 were issued by Respondent No. 2 under Section 18(2)(a) of National Database and Registration Authority, Ordinance, 2000. With a view to determining the legality of the aforementioned show-cause notices, the two relevant statutes required to be examined are; the Pakistan Citizenship Act, 1951 (hereinafter referred to as the 'Citizenship Act') and the National Database and Registration Authority Ordinance, 2000 (hereinafter referred to as 'Ordinance, 2000'). The survey of the two aforementioned statutes palpably shows that all matters relating to or in connection with the citizenship of a person are covered and dealt with under the citizenship Act solely, whereas the Ordinance, 2000 provides for the registration of all persons and for the establishment and maintenance of a multipurpose database, data warehouses, etc. For ready reference, Section 18 of National Database and Registration Authority Ordinance, 2000 is reproduced as under: -

"Power to cancel, impound or confiscate cards. - (1) A card issued under this Ordinance shall be the property of the Federal Government and may, by an order in writing under the seal of the Authority or an officer authorised by it in this behalf, be required to be returned and shall also be liable to be cancelled, impounded or confiscated by a like order:

Provided that no order shall be made unless such person has been given notice in writing calling upon him to show-cause why the order should not be made.

(2) An order under subsection (1) cancelling, impounding or confiscating a card may be made only if there is reason to believe that-

(a) the card has been obtained by a person who is not eligible to hold such card, by posing himself as eligible;

(b) more than one cards have been obtained by the same person on the same eligibility criteria;

(c) the particulars shown on the card have been obliterated or tampered with; or

(d) the card is forged.

(3) Any person in respect of whose card an order under subsection (1) has been made may, within thirty days of the order, appeal to the Federal Government against the order and the decision of the Federal Government in appeal shall be final:

Provided that no order on such appeal shall be passed unless the appellant has been given an opportunity of being heard".

1. The aforesaid provision makes it clear that the Authority, under section 18(2)(a) of the Ordinance, 2000, is empowered to cancel, impound or confiscate a CNIC if there are reasons to believe that the holder was not eligible and/or had obtained the card by falsely posing to be eligible. In the instant petition, the question of eligibility of the Petitioner to hold a valid CNIC is in the context of his citizenship. The question to resolve here is whether the Authority has been vested with the jurisdiction to initiate proceedings qua eligibility of the Petitioner to hold a valid CNIC stemming from his citizenship? The answer is in the negative. In simple terms, the Authority under the Ordinance, 2000, does not have the jurisdiction to initiate proceedings, whereby the eligibility of a person to hold CNIC based on his/her citizenship would be interrogated. It is pertinent to mention herein that the determination of eligibility, related to a person's citizenship, falls strictly within the exclusive jurisdiction of the Competent Authority under the Citizenship Act, particularly Section 16 read with the Citizenship Rules, 1952. Therefore, any action under Section 18(2)(a) of the Ordinance, 2000, concerning eligibility linked to citizenship, must be based on a prior determination by the competent authority i.e., the Federal Government under the Citizenship Act and its corresponding Rules. The Authority under Ordinance, 2000 cannot block, suspend, impound, or confiscate a CNIC on citizenship-related grounds unless a prior judicial order or final determination by the Competent Authority has been made under Section 16 of the Citizenship Act. In the judgement mentioned supra, the Honorable Court held that: -

"In the petitions in hand the question of eligibility is in the context of citizenship of the petitioners. The Authority, pursuant to receiving information from one of the agencies, had purportedly initiated proceedings by blocking the CNIC or had recklessly adjudicated the status of an already registered citizen and consequently cancelled, impounded or confiscated the card. In essence the Authority, on mere suspicion or after adjudicating upon the status of a registered citizen, had either blocked or cancelled the cards, as the case may be. Was the Authority vested with jurisdiction to initiate proceedings regarding 'eligibility' stemming from 'citizenship'? The answer is an emphatic NO. It is noted that the question of 'eligibility' having a nexus with 'citizenship' could only have been adjudicated by the competent authority vested with jurisdiction in this regard and that too in the manner provided under the Citizenship Act read with the Citizenship Rules. The procedure adopted by the Authority whereby cases are referred to District Committees has no backing of the law and ultra vires the Citizenship Act and the Citizenship Rules. Once the person was declared as not being a citizen of Pakistan and adjudication under the aforementioned statute had attained finality only then would the Authority have been empowered to exercise its powers under the Ordinance of 2000, particularly under section 18(2)(a) ibid. As discussed above, the Citizenship Act is a complete self-contained statute governing all matters relating to and in connection with the status of a person as a 'citizen'. The legislature has clearly described the various categories of 'citizenship' and has provided statutory safeguards so that no person is deprived of the right of citizenship arbitrarily or in a reckless manner. No person can be deprived of citizenship except in the manner and subject to the conditions provided under section 16 of the Citizenship Act…The course of action adopted by the Authority in order to determine the eligibility of an already registered citizen on the basis of the citizenship of the latter is ultra vires the Citizenship Act read with the Citizenship Rules. The procedure regarding referring the cases to the purported District Committees is also alien to the statutory provisions and safeguards provided under the aforementioned statute. The legislature, in its wisdom, has not vested the Authority with the power to suspend or block a CNIC and as already noted, in order to do so a judicial order by a competent court would be required….It is, therefore, declared that the Authority is bereft of jurisdiction or power to directly or indirectly determine or adjudicate upon the status and eligibility of a person's citizenship who has already been registered as a citizen. It is further declared that the exercise of powers conferred under section 18(2)(a) of the Ordinance of 2000 on the ground of eligibility relating to citizenship are subject to determination or adjudication made by the competent authority and in the manner provided under the Citizenship Act read with the Citizenship Rules. The Authority is bereft of the power to block, suspend, impound or confiscate a CNIC on the ground of eligibility relating to citizenship unless an order passed by the competent authority under subsection (6) of section 16 of the Citizenship Act has attained finality or the Authority has been informed that the competent authority has either confirmed renunciation of citizenship under section 14A or its loss under section 16A, as the case may be."

1. Hence, the Authority is absolutely not empowered to adjudicate upon the question of citizenship of a person as well as their eligibility, because it has to be exclusively dealt with under the Citizenship Act. The Authority, therefore, does not enjoy the power to initiate proceedings on the basis of reports received from the intelligence agencies regarding the status of citizenship of a person who has already been registered as a citizen in the system. The agencies, at best, can report the case of alleged fraud, misrepresentation or concealment of material facts along with the relevant material, to the Competent Authority empowered under the Citizenship Act. It is noted that the reports of intelligence agencies have to be processed and placed before the competent authority for proper adjudication. Reliance in this regard is placed on "Abdul Qadir v. Federation of Pakistan and others" (2024 MLD 1774) wherein it is mentioned that "NADRA has no right under the National Database and Registration Authority Ordinance, 2000 to determine the question of citizenship which can only be adjudicated by the competent authority under the Act and the rules framed thereunder". Furthermore, it is necessary to note here that the right of appeal provided under subsection (2) of section 18 of the Ordinance of 2002 cannot be a substitute to the exercise of powers vested in the Federal Government under the Citizenship Act. The Federal Government has nowhere delegated its powers to any other authority to deprive a citizen of his/her citizenship.

2025 M L D 1347

[Islamabad]

Before Arbab Muhammad Tahir and Muhammad Azam Khan, JJ

Naveed Ahmed---Appellant

Versus

The state through SI---Respondent

Criminal Appeal No. 49 and Jail Appeal No. 170 of 2024, decided on 14th April, 2025.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Prosecution case was that 1455-grams heroin powder was recovered from the possession of accused---In narcotic cases, it was crucial to establish the charge of possession of narcotic recovered from the accused while strictly observing that the contraband was searched and seized by an officer not below the rank of Sub-Inspector, that samples from each packet must be collected and sent for chemical analysis, that samples should be forwarded to the Forensic Science Laboratory within reasonable time of the seizure; and that ensuring the proper sending and safe transmission of the sample to the Forensic Science Laboratory was also vital---In the present case, all of the said legal requirements had been properly adhered to---Under S.29, Control of Narcotic Substances Act, a presumption is attached in trials regarding the possession of illicit articles of which accused has failed to account satisfactorily, unless and until contrary is proved by the appellant---Said burden was also not contradicted or disproven by the appellant/convict, who failed to explain his possession of such a large quantity of narcotic or his presence at the scene---Circumstances established that the prosecution had proved through cogent, credible and reliable evidence that police had recovered 1455 grams of heroin from the appellant and brought home the charge against him---Appeal against conviction was dismissed, in circumstances.

Zain Ali v. The State 2023 SCMR 1669 and Gul Alam v. The State 2011 SCMR 624 ref.

Sohaib Ahmed Shafi for Appellant.

Rana Hassan Abbas, A.D.P.P. and Tanvir S.I, P.S. Bara Kahu, Islamabad for the State.

Date of hearing: 5th March, 2025.

Judgment

Muhammad Azam Khan, J.---By this common judgment, we intend to dispose of Criminal Appeal No. 49/2024 and Jail Appeal No.170/2024 arising out of the Judgment dated 22.12.2023 ("Impugned Judgment") passed by the learned Additional Sessions Judge/Judge Special Court (CNS), Islamabad-East ("Trial Court") in case FIR No.906/2022 dated 02.11.2022 under Section 9(1)(6)(c) Control of Narcotic Substances Act, 1997 ("CNSA") registered at Police Station Bara Kahu, Islamabad.

1. Both the titled Appeals have been filed by the Appellant/Convict [Naveed Ahmed] against the Impugned Judgment passed by the learned Trial Court whereby the Appellant has been convicted under Section 9(1)(6)(c) CNSA, 1997 and sentenced to undergo ten (10) years rigorous imprisonment with fine of Rupees One hundred and twenty-five thousands (Rs.1,25,000/-) and in default whereof to further undergo one (01) month of simple imprisonment. The benefit of Section 382(B), Code of Criminal Procedure, 1898 ("Cr.P.C.") was also extended to the Appellant.

2. The brief facts of the case as per the contents of FIR are that on 01.11.2022, on the directions of high ups, police officials comprising of Shahid Munir S.I, Sikandar Ali 6677/HC and Bilal 4442/C, were on patrolling duty at Murree Road when spy met Shahid Munir S.I and informed him that a notorious drug peddler namely Naveed Tinda is going at Bheera Pull Stop, having huge quantity of narcotics. Considering the information reliable, police party reached Bheera Pull in front of Punjab Cash and Carry where a person on foot was going towards Abadi who on spy pointation, was overpowered. The said person disclosed his name as Naveed Ahmed alias Tinda son of Muhammad Siddique. From the red color shopper held by the said person in his right hand, heroin powder was recovered which on weighing through digital scale came out to be 1455 grams. From the recovered heroin, 01 gram heroin was separated for chemical analysis. Two parcels (one parcel of remaining heroin along with red color shopper and one parcel of sample heroin) sealed with the seal "SW", were prepared which were taken into possession by Shahid Munir S.I through recovery memo. Hence, Subject FIR was registered against the Appellant/Convict.

3. After necessary investigation, the Appellant was sent up to the Trial Court to face deeds of his culpability, where on commencement of the trial, the Appellant entered the plea of denial, thus, the prosecution in order to bring home the charge, produced as many as five witnesses, and after close of the prosecution side, the Appellant negated the allegations so brought and confronted with the allegations as envisaged under section 342 of Cr.P.C., whereafter, the Appellant neither stepped into the witness box to depose on oath nor produced any evidence in his defense, hence, on conclusion of the trial, the Appellant was convicted and sentenced in the terms mentioned in the para supra. Being aggrieved of the Impugned Judgment, the Appellant/Convict has filed the instant Appeal.

4. Learned counsel for the Appellant argued that the alleged incident occurred on 01.11.2022 at 11:30 PM, coinciding with the Appellant's arrest, while PW-01 and PW-02 stated he was arrested on 02.11.2022. PW-05/I.O Shahid Munir SI claimed he weighed 1455 grams of heroin at the scene, separated only 1 gram, and then filed the complaint. The FIR's version is implausible, as separating just 1 gram sample for chemical analysis is unrealistic, reducing the charge to Section 9(a) CNSA instead of 9(c), making the prosecution's case doubtful and the sentence excessive. No independent witnesses were cited at the time of arrest, warranting the benefit of the doubt for the Appellant. The recovery memo lacked details such as the location, spy information, color of bag, details of the raiding party, and tools used to separate the sample. Contradictions in witnesses statements further support the Appellant's claim that the case was fabricated to show police efficiency. Additionally, the delay in sending the sample for analysis and the failure to produce the case property before the court cast further doubt. The prosecution failed to prove the Appellant was seen selling or transporting heroin, no independent witness confirmed the transaction, and no cash was recovered. The police's failure to include independent witnesses and contradictions in evidence suggest mala fide intent. The trial court has not appreciated evidence, leading to a wrongful conviction. Therefore, the Appellant seeks the appeal's acceptance, the setting aside of the impugned judgment, and his acquittal.

5. Conversely, learned ADPP vigorously resisted the arguments advanced by the counsel for the Appellant and urged that the Trial Court has well appreciated the evidence on record, which does not call for interference; that the prosecution has proved the case against the Appellant/Convict beyond any shadow of doubt; that the safe custody and transmission has also been proved beyond any shadow of doubt, which does not in any manner vitiate the trial and as such requested for dismissal of the Appeal that the prosecution witnesses remained consistent on material aspects of the case; that there is sufficient evidence available on record which connects the Appellant/Convict with the commission of the offence; that narcotics smugglers are ruining the society; that the Impugned Judgment is well reasoned and has been passed keeping in view the evidence available on record; that there is no illegality or irregularity in the Impugned Judgment; and that the instant appeal may kindly be dismissed.

6. I have heard the learned counsel for the parties and have also perused the record with their able assistance.

7. Sikandar Ali 6677/HC (PW-1) came up with a similar story as mentioned in para No.3 of this judgment regarding recovery of aforesaid narcotics from the possession of the Appellant, which was taken into possession through recovery memo (Ex.PA). He further stated that on 08.11.2022, on the direction of I.O, Moharrar Maalkhana handed over to him 01 sealed sample parcel along with English docket and Road Certificate No.823/22. He deposited the sample parcel in NFSA and on return, handed over Road Certificate bearing receipt of NFSA to Moharrar Maalkhana.

8. Umar Hayat 292/HC (PW-2) deposed that on 02.11.2022, Muhammad Nawaz S.I, handed over to him, 01 sealed sample parcel weighing 01 gram and 01 sealed parcel of remaining case property weighing 1454 grams, said to contain heroin powder, stamped with seal "SW" which he kept in Malkhana for safe custody. On 08.11.2022, on the direction of Muhammad Nawaz S.I, he handed over 01 sealed sample parcel to Sikandar 6677 along with Road Certificate No.823/22 for onward transmission to NFSA laboratory who after depositing the sealed sample parcel in NFSA on the same day, handed over to him Road Certificate bearing acknowledgment.

9. Muhammad Bilal (PW-3) has narrated about the arrest of Appellant/Convict and recovery of heroin weighing 1455 grams from his possession. He brought the complaint from the Complainant, Shahid Munir S.I from the spot to the Police Station for registration of FIR. After registration of FIR, he along with Nawaz Gondal S.I came to the place of occurrence along with copy of FIR and the original complaint. I.O recorded his statement under section 161 Cr.P.C.

10. Muhammad Nawaz SI (PW-4) who is the Investigating Officer, deposed that on 02.11.2022, Muhammad Bilal/C brought the complaint written and sent by Shahid Munir S.I on the basis of which he registered FIR Ex.PC and put his endorsement on the complaint. Thereafter, he along with Muhammad Bilal/C went to the place of occurrence at about 12:30 am. Shahid Munir S.I handed over to him the custody of accused, case property and documents. He prepared unscaled site plan Ex.PD, on the pointation of Shahid Munir S.I. He recorded the statements of witnesses, interrogated the Appellant/Convict and formally arrested him. He then left the spot and came back to police station along with Muhammad Bilal/C, where he handed over the case property to Moharrar Maalkhana for placing in safe custody. On 08.11.2022, on his direction, Sikandar Ali/HC collected one sealed sample parcel from Moharrar Maalkhan Umer Hayat along with Road Certificate No.83/22 and English Docket for onward transmission to NFSA, Islamabad. After depositing the sample parcel in NFSA, Sikandar Ali HC came back to the police station and handed over the road certificate bearing receipt of NFSA, to Moharrar Maalkhana who placed the same in the concerned register. He recorded statements under section 161 Cr.P.C of Moharrar Maalkhana and Sikandar Ali HC. On the same day, he handed over case file to the S.H.O for submission of report under section 173 Cr.P.C.

11. Shahid Munir S.I (PW-5) has narrated the same facts as mentioned in para No.3 of this judgment regarding recovery of heroin from the possession of the appellant, separation of sample from the recovered heroin, preparation of parcels and seizure of recovered heroin by him through recovery memo (Ex.PA). He also prepared complaint Ex.PB and sent the same to the police station for registration of FIR through Muhammad Bilal 4442/C. He further stated that after registration of FIR, Muhammad Bilal 4442/C and Muhammad Nawaz S.I came to the place of occurrence with original complaint and copy of FIR. He handed over the case property, custody of accused and recovery memo to Muhammad Nawaz S.I who on his pointation, drafted unscaled site plan. I.O recorded his statement under section 161 Cr.P.C.

12. The learned defense counsel pointed out that the recovery was made on 01.11.2022, while the FIR was lodged on 02.11.2022. In reply to this, it is to mention here that the place of occurrence is Jhugi Stop, Murree road, time and date of occurrence was 11:30 pm on 01.11.2022, while the FIR was lodged at 00:35 am on 02.11.2022, thus the whole proceedings of investigation including writing of complaint/Istighasa on the spot, sending the complaint to the Police station for registration of FIR, takes at least an hour which is quite reasonable and acceptable to a prudent mind.

13. The second contention raised by the learned defense counsel is that only one gram of heroin was separated from the total recovered heroin i.e. 1455 grams, is not sufficient and not required for sample purposes. To this objection, it is to mention here that there is no yardstick of separation of quantity of narcotics for a representative sample which is to be sent for chemical analysis. The Forensic Laboratory has not raised any objection to that effect that the quantity of the sample is so less that it cannot be analyzed for determination as to whether it's a narcotic or not. Hence, one gram of representative sample for sending it for chemical analysis is sufficient to determine the kind of narcotics recovered.

14. The third contention raised by the learned defense counsel is that no private witnesses has been cited by the police during the whole proceedings. In this regard it is to mention that it is held in so many judgment of the superior courts that police officials are as good witnesses as of private witnesses and even otherwise in our society, no one is ready to become witness in such like cases, and this has become judicially recognized fact. Reliance is placed on judgment of the Supreme Court cited in (2023 SCMR 1669) titled "Zain Ali v. The State", relevant portion of which is reproduced as under: -

"As already stated above, the whole case hinges upon the statement of the official witnesses and no independent witness was associated while conducting the search of the vehicle. However, it is well settled that testimonies of the police personnel are required to be treated in the same manner as the testimony of any other witness and there is no principle of law that without corroborating by the independent witnesses, their testimonies cannot be relied upon. This Court has time and again held that reluctance of general public to become witness in such like cases has become judicially recognized fact and there is no way out to consider statement of official witnesses, as no legal bar or restriction has been imposed in such regard. The presumption that a person acts honestly applies, as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds."

1. The fourth contention raised by the learned defense counsel is that sample was sent beyond 72 hours, to the laboratory for its forensic test. In this regard, it is to mention here that though under Rule 4 of Control of Narcotic Substances (Government Analysts) Rules, 2001, requirement for sending the sample for chemical analysis is within 72 hours but in the presence of other cogent, strong, unrebutted and reliable prosecution evidence, this anomaly cannot be given any weightage and specially when there is previous conviction of the accused in similar nature of cases. Hence, this contention carries no bearing on the credibility of the prosecution case. Even otherwise, the said Rules are being directory and not mandatory, which could not control the substantive provisions of the Control of Narcotics Substances Act, 1997 and frustrate its purpose. Failure to follow the said rules would not render the search, seizure and arrest under the parent Act, nullity and would not make the entire case doubtful, thus belated dispatch of incriminating article for expert opinion could not be fatal in the absence of any objection regarding the same having been tampered with or manipulated. Reliance is placed on ruling of the Supreme Court cited in (2011 SCMR 624) titled "Gul Alam v. The State".

2025 M L D 1315

[Islamabad]

Before Muhammad Azam Khan, J

Saeed Zahir Zada---Petitioner

Versus

Federation of Pakistan through Secretary Ministry of Interior and another---Respondents

Writ Petition No. 3680 of 2024, decided on 8th April, 2025.

National Database and Registration Authority Ordinance (VIII of 2000)---

----S. 18 & Preamble---Pakistan Citizenship Act (II of 1951), S. 169 & Preamble---Computerized National Identity Card (CNIC), blocking of---Legality---Citizenship of person, determination of---Competent authority---Petitioner sought direction from the High Court to National Database and Registration Authority (NADRA) to unblock his Computerized National Identity Card (CNIC)---Petitioner pleaded that his CNIC had been blocked by the National Database and Registration Authority (NADRA)---Respondents contended that the petitioner had obtained CNIC by unfair means by committing fraud and concealing the facts at the time of processing of his CNIC by posing himself as citizen of Pakistan---Validity---Pursuant to the report received by the NADRA from the intelligence agency, the CNIC of the petitioner was digitally, impounded on the basis of mere suspicion and doubt nothing in the said report could establish the alleged fraud and misrepresentation on the part of the petitioner---Therefore, when a right is accrued to any person, the same could not be taken back, withheld, and/or stripped away without adhering to due process of law; such right could not be taken away on mere suspicious or feeble grounds---Moreover, the CNIC of the petitioner was digitally impounded on the solitary report of the agency, wherein it was alleged that the petitioner had obtained his CNIC by unfair means, committing fraud and concealing the facts by posing himself as citizen of Pakistan at the time of processing of his CNIC---Such stance taken by NADRA held no veracity as neither NADRA nor any intelligence agency was competent under the law to determine the citizenship of a person---All matters relating to or in connection with the citizenship of a person were covered and dealt with under the Citizenship Pakistan Act solely, whereas the Ordinance 2000 provided for the registration of all persons and for the establishment and maintenance of a multipurpose database, data warehouses, etc.---NADRA under the Ordinance 2000 did not have the jurisdiction to initiate proceedings, whereby the eligibility of a person to hold CNIC based on his/her citizenship could be interrogated---Determination of eligibility, relating to a person's citizenship, fell strictly within the exclusive jurisdiction of the competent authority under the Pakistan Citizenship Act, particularly Section 16 read with the Pakistan Citizenship Rules, 1952---Therefore, any action under Section 18(2)(a) of the Ordinance, 2000, concerning eligibility linked to citizenship, must be based on a prior determination by the competent authority---NADRA under Ordinance, 2000 cannot block, suspend, impound or confiscate a CNIC on citizenship-related grounds unless a prior judicial order or final determination by the competent authority had been made under Section 16 of the Citizenship Act---In such circumstances, NADRA could initiate appropriate proceedings before the competent authority i.e., the Federal Government under the Pakistan Citizenship Act---Respondents were also directed to provide fair opportunity to the petitioner keeping in view fundamental rights and international obligations---Petitioner was also directed to comply with proceedings so that his grievances could be redressed amicably by the competent authority---NADRA under Ordinance, 2000 was directed to restore the CNIC of the petitioner for the time being till the decision of the Federal Government upon the application of the petitioner---Petition was partly allowed.

Fatima v. National Database and Registration Authority through Director General, PLD 2022 Bal. 73; Hafiz Hamdullah Saboor v. Government of Pakistan through Secretary Ministry of Interior, Islamabad, PLD 2021 Isl. 305; Abdul Qadir v. Federation of Pakistan and others 2024 MLD 1774 and Hafiz Awais Zafar v. Judge Family Court, Lahore and 2 others PLD 2022 Lahore 756 rel.

Hafiz Shoaib Muhammad for Petitioner.

Raja Zamir-ud-Din, A.A.G. for Respondents.

Taimur Janjua, State Counsel.

Malik Muhammad Khaliq Advocate, on behalf of NADRA.

Assisted by Ms. Amna Danial Khawaja, Law Clerk.

Date of hearing: 18th March, 2025.

Judgment

Muhammad Azam Khan, J.--- Through the instant writ petition, Saeed Zahir Zada ("Petitioner") seeks direction to NADRA to unblock his CNIC No.42501- 1429824-7.

1. The brief facts of the case in hand as per memo. are that the Petitioner holds a Computerized National Identity Card No.42501-1429824-7. About six months ago, he came to know that his CNIC had been blocked. He frequently visited the office of Respondent No.2 and inquired regarding blocking of his CNIC, but to no avail. He also sent application to the Chairman of Respondent No.2, however, no response was given to him on the said application. Hence, the present petition.

2. The learned counsel for the Petitioner argued that blocking of CNIC by Respondent No.2 is illegal and without any lawful justification whatsoever; that it has been provided under Section 18 of National Database and Registration Authority Ordinance, 2000 that Respondent No.2 can only block one's CNIC under the circumstances given in the said section; that none of the said circumstances are attracted to the Petitioner; that blockage of CNIC of the Petitioner is in violation of his fundamental rights; that Petitioner has no alternative remedy except invoking this Court's jurisdiction under Article 199 of the Constitution. The counsel prays for immediate unblocking of the CNIC of the Petitioner.

3. On behalf of the Respondents, it is submitted that the Petitioner has not come to the court with clean hands; that Petitioner has already filed Writ Petition No.2735/2024 with same cause/nature which is pending before Honorable Bench-VII of this court; that Petitioner has obtained CNIC by unfair means, committing fraud and concealing the facts at the time of processing of his CNIC by posing himself as citizen of Pakistan; that the CNIC No.42501-1429824-7 of the Petitioner was initially digitally impounded on basis of court order dated 05.10.2021; that on 12.04.2023, Regional Head Office Karachi reported the Petitioner and his family as Alien (non-national) through letter No.NADRA/M&E/Veri-12/2023/28727; that on basis of this report, show-cause notice was issued to the Petitioner to appear before Regional Verification Board along with supporting documents prior to 1979 as per Ministry of Interior Notification for clearance of their national status, however, the Petitioner and his family did not appear before the NADRA Verification Board within stipulated time due to which, their CNICs were digitally impounded in Alien category; that Petitioner may kindly be directed to avail an alternate remedy to appear before NADRA Zonal Verification Board along with supporting documents prior to 1979 as per MOI notification. That the instant petition is not maintainable and liable to be dismissed.

4. I have heard the learned counsel for the parties and have also perused the record with their able assistance.

5. The admitted facts are that the Petitioner was duly registered by the Authority under the National Database and Registration Authority Ordinance, 2000, after he had applied for issuance of his respective CNIC in accordance with the prescribed procedure and fulfillment of the mandatory requirements. The registration was followed by the issuance of his CNIC, which duly acknowledged the crucial fact that the Petitioner was citizen of Pakistan. The CNIC of the Petitioner was initially blocked on the basis of Court order dated 05.10.2021 in case FIR No.2/20 of P.S Kohsar, Islamabad. Furthermore, the show-cause notice under Section 18 of NADRA Ordinance, 2000 was also served on 11.10.2021. The learned Judicial Magistrate Islamabad vide order dated 24.09.2024 unblocked the CNIC of the Petitioner in the said FIR, and the same was provided by the latter in response to the abovementioned show-cause notice. On 12.04.2023, Regional Head Office Karachi Reported that the Petitioner and his family are alien (non-national) through letter No.NADRA/M&E/Veri-12/2023/28727 and on basis of this report, show-cause notice dated 03.05.2023 was issued to the Petitioner for appearance before the Regional Verification Board along with supporting documents prior to 1979 as per Ministry of Interior Notification dated 19 April, 2017. The Petitioner and his family failed to appear before the NADRA Verification Board within the stipulated time and due to their non-appearance, CNICs were digitally impounded in alien category.

6. Before delving deeper into the legal facets of the matter, it is pertinent to determine herein whether the intelligence agencies are competent to report the factum of citizenship to the Authority, especially keeping in view that the Petitioner was duly issued his respective CNIC, thereby acknowledging his citizenship of Pakistan. Citizenship is a basic fundamental human right, as it grants access to all other rights. Without it, a person becomes stateless, stripped of his dignity and recognition, left without protection or belonging in the society. Pursuant to the report received by the Authority from the agency, the CNIC of the Petitioner was digitally impounded on the basis of mere suspicion and doubt; nothing in the said report could establish the alleged fraud and misrepresentation on the part of the Petitioner. Therefore, when a right gets accrued upon any person, the same cannot be taken back, withheld, and/or stripped away without adhering to due process of law; such right cannot be taken away on mere suspicious or feeble grounds. In this regard, reliance is placed on Fatima v. National Database and Registration Authority through Director General, PLD 2022 Balochistan 73 wherein it has been held that: -

"The authority/respondent issued CNIC after fulfilling all codal and legal formalities which creates a right to the petitioner. Such right cannot be taken away on suspicious or flimsy grounds. When a right accrued to any person the same cannot be withheld or taken away without due process of law. Under the law the burden of proof lies on respondent to prove that petitioner is not citizen of Pakistan. Mere verbal assertion cannot be a ground to deprive a person from his fundamental rights. The right which is guaranteed by the Constitution cannot be taken away by notification."

Moreover, the CNIC of the Petitioner was digitally impounded on the solitary report of the agency, wherein it was alleged that the Petitioner had obtained his CNIC by unfair means, committing fraud and concealing the facts by posing himself as citizen of Pakistan at the time of processing of his CNIC. Such stance taken by Respondent No. 2 holds no veracity as neither NADRA nor any intelligence agency is competent under the law to determine the citizenship of a person. In the case of Hafiz Hamdullah Saboor v. Government of Pakistan through Secretary Ministry of Interior, Islamabad, PLD 2021 Islamabad 305, the Honorable Islamabad High Court appropriately held that: -

"As would be discussed later in more detail, the Authority nor the intelligence agencies are competent to determine the question of citizenship of a person…This Court has consistently observed that the Authority was bereft of jurisdiction to adjudicate upon a question which involves the determination of the status of a person as a citizen of Pakistan and that too, on the basis of reports received from intelligence agencies which are under the control of the Government."

Shedding light on the mechanism, arbitrarily adopted by the Authority, of relying upon the reports rendered by the intelligence agencies, the Honorable Islamabad High Court further stated the following: -

"The respective agencies had reported that the petitioners were not citizens of Pakistan. The Authority issued notices. Perusal of the notices shows that particulars of the petitioners were filled in a pre-published standard form. Without disclosing the material to the petitioners and denying them the right of response on the touchstone of the principles of due process, the Authority either blocked or in some cases cancelled the CNICs of the petitioners. In a perfunctory manner the petitioners were deprived of being citizens of Pakistan merely because an intelligence agency had reported so. Despite the devastating impact of rendering the petitioners stateless, no reasoned order was passed by the Authority. The sole ground for blocking or cancellation of the CNICs of the petitioners was that they had falsely declared themselves as citizens of Pakistan."

1. The record ostensibly shows that the show-cause notices dated 11.10.2021 and 03.05.2023 were issued by Respondent No. 2 under Section 18(2)(a) of National Database and Registration Authority, Ordinance, 2000. With a view to determining the legality of the aforementioned show-cause notices, the two relevant statutes required to be examined are; the Pakistan Citizenship Act, 1951 (hereinafter referred to as the 'Citizenship Act') and the National Database and Registration Authority Ordinance, 2000 (hereinafter referred to as 'Ordinance, 2000'). The survey of the two aforementioned statutes palpably shows that all matters relating to or in connection with the citizenship of a person are covered and dealt with under the citizenship Act solely, whereas the Ordinance, 2000 provides for the registration of all persons and for the establishment and maintenance of a multipurpose database, data warehouses, etc. For ready reference, Section 18 of National Database and Registration Authority Ordinance, 2000 is reproduced as under: -

"Power to cancel, impound or confiscate cards. - (1) A card issued under this Ordinance shall be the property of the Federal Government and may, by an order in writing under the seal of the Authority or an officer authorised by it in this behalf, be required to be returned and shall also be liable to be cancelled, impounded or confiscated by a like order:

Provided that no order shall be made unless such person has been given notice in writing calling upon him to show-cause why the order should not be made.

(2) An order under subsection (1) cancelling, impounding or confiscating a card may be made only if there is reason to believe that-

(a) the card has been obtained by a person who is not eligible to hold such card, by posing himself as eligible;

(b) more than one cards have been obtained by the same person on the same eligibility criteria;

(c) the particulars shown on the card have been obliterated or tampered with; or

(d) the card is forged.

(3) Any person in respect of whose card an order under subsection (1) has been made may, within thirty days of the order, appeal to the Federal Government against the order and the decision of the Federal Government in appeal shall be final:

Provided that no order on such appeal shall be passed unless the appellant has been given an opportunity of being heard".

1. The aforesaid provision makes it clear that the Authority, under section 18(2)(a) of the Ordinance, 2000, is empowered to cancel, impound or confiscate a CNIC if there are reasons to believe that the holder was not eligible and/or had obtained the card by falsely posing to be eligible. In the instant petition, the question of eligibility of the Petitioner to hold a valid CNIC is in the context of his citizenship. The question to resolve here is whether the Authority has been vested with the jurisdiction to initiate proceedings qua eligibility of the Petitioner to hold a valid CNIC stemming from his citizenship? The answer is in the negative. In simple terms, the Authority under the Ordinance, 2000, does not have the jurisdiction to initiate proceedings, whereby the eligibility of a person to hold CNIC based on his/her citizenship would be interrogated. It is pertinent to mention herein that the determination of eligibility, related to a person's citizenship, falls strictly within the exclusive jurisdiction of the Competent Authority under the Citizenship Act, particularly Section 16 read with the Citizenship Rules, 1952. Therefore, any action under Section 18(2)(a) of the Ordinance, 2000, concerning eligibility linked to citizenship, must be based on a prior determination by the competent authority i.e., the Federal Government under the Citizenship Act and its corresponding Rules. The Authority under Ordinance, 2000 cannot block, suspend, impound, or confiscate a CNIC on citizenship-related grounds unless a prior judicial order or final determination by the Competent Authority has been made under Section 16 of the Citizenship Act. In the judgement mentioned supra, the Honorable Court held that: -

"In the petitions in hand the question of eligibility is in the context of citizenship of the petitioners. The Authority, pursuant to receiving information from one of the agencies, had purportedly initiated proceedings by blocking the CNIC or had recklessly adjudicated the status of an already registered citizen and consequently cancelled, impounded or confiscated the card. In essence the Authority, on mere suspicion or after adjudicating upon the status of a registered citizen, had either blocked or cancelled the cards, as the case may be. Was the Authority vested with jurisdiction to initiate proceedings regarding 'eligibility' stemming from 'citizenship'? The answer is an emphatic NO. It is noted that the question of 'eligibility' having a nexus with 'citizenship' could only have been adjudicated by the competent authority vested with jurisdiction in this regard and that too in the manner provided under the Citizenship Act read with the Citizenship Rules. The procedure adopted by the Authority whereby cases are referred to District Committees has no backing of the law and ultra vires the Citizenship Act and the Citizenship Rules. Once the person was declared as not being a citizen of Pakistan and adjudication under the aforementioned statute had attained finality only then would the Authority have been empowered to exercise its powers under the Ordinance of 2000, particularly under section 18(2)(a) ibid. As discussed above, the Citizenship Act is a complete self-contained statute governing all matters relating to and in connection with the status of a person as a 'citizen'. The legislature has clearly described the various categories of 'citizenship' and has provided statutory safeguards so that no person is deprived of the right of citizenship arbitrarily or in a reckless manner. No person can be deprived of citizenship except in the manner and subject to the conditions provided under section 16 of the Citizenship Act…The course of action adopted by the Authority in order to determine the eligibility of an already registered citizen on the basis of the citizenship of the latter is ultra vires the Citizenship Act read with the Citizenship Rules. The procedure regarding referring the cases to the purported District Committees is also alien to the statutory provisions and safeguards provided under the aforementioned statute. The legislature, in its wisdom, has not vested the Authority with the power to suspend or block a CNIC and as already noted, in order to do so a judicial order by a competent court would be required….It is, therefore, declared that the Authority is bereft of jurisdiction or power to directly or indirectly determine or adjudicate upon the status and eligibility of a person's citizenship who has already been registered as a citizen. It is further declared that the exercise of powers conferred under section 18(2)(a) of the Ordinance of 2000 on the ground of eligibility relating to citizenship are subject to determination or adjudication made by the competent authority and in the manner provided under the Citizenship Act read with the Citizenship Rules. The Authority is bereft of the power to block, suspend, impound or confiscate a CNIC on the ground of eligibility relating to citizenship unless an order passed by the competent authority under subsection (6) of section 16 of the Citizenship Act has attained finality or the Authority has been informed that the competent authority has either confirmed renunciation of citizenship under section 14A or its loss under section 16A, as the case may be."

1. Hence, the Authority is absolutely not empowered to adjudicate upon the question of citizenship of a person as well as their eligibility, because it has to be exclusively dealt with under the Citizenship Act. The Authority, therefore, does not enjoy the power to initiate proceedings on the basis of reports received from the intelligence agencies regarding the status of citizenship of a person who has already been registered as a citizen in the system. The agencies, at best, can report the case of alleged fraud, misrepresentation or concealment of material facts along with the relevant material, to the Competent Authority empowered under the Citizenship Act. It is noted that the reports of intelligence agencies have to be processed and placed before the competent authority for proper adjudication. Reliance in this regard is placed on "Abdul Qadir v. Federation of Pakistan and others" (2024 MLD 1774) wherein it is mentioned that "NADRA has no right under the National Database and Registration Authority Ordinance, 2000 to determine the question of citizenship which can only be adjudicated by the competent authority under the Act and the rules framed thereunder". Furthermore, it is necessary to note here that the right of appeal provided under subsection (2) of section 18 of the Ordinance of 2002 cannot be a substitute to the exercise of powers vested in the Federal Government under the Citizenship Act. The Federal Government has nowhere delegated its powers to any other authority to deprive a citizen of his/her citizenship.

2025 M L D 1347

[Islamabad]

Before Arbab Muhammad Tahir and Muhammad Azam Khan, JJ

Naveed Ahmed---Appellant

Versus

The state through SI---Respondent

Criminal Appeal No. 49 and Jail Appeal No. 170 of 2024, decided on 14th April, 2025.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Prosecution case was that 1455-grams heroin powder was recovered from the possession of accused---In narcotic cases, it was crucial to establish the charge of possession of narcotic recovered from the accused while strictly observing that the contraband was searched and seized by an officer not below the rank of Sub-Inspector, that samples from each packet must be collected and sent for chemical analysis, that samples should be forwarded to the Forensic Science Laboratory within reasonable time of the seizure; and that ensuring the proper sending and safe transmission of the sample to the Forensic Science Laboratory was also vital---In the present case, all of the said legal requirements had been properly adhered to---Under S.29, Control of Narcotic Substances Act, a presumption is attached in trials regarding the possession of illicit articles of which accused has failed to account satisfactorily, unless and until contrary is proved by the appellant---Said burden was also not contradicted or disproven by the appellant/convict, who failed to explain his possession of such a large quantity of narcotic or his presence at the scene---Circumstances established that the prosecution had proved through cogent, credible and reliable evidence that police had recovered 1455 grams of heroin from the appellant and brought home the charge against him---Appeal against conviction was dismissed, in circumstances.

Zain Ali v. The State 2023 SCMR 1669 and Gul Alam v. The State 2011 SCMR 624 ref.

Sohaib Ahmed Shafi for Appellant.

Rana Hassan Abbas, A.D.P.P. and Tanvir S.I, P.S. Bara Kahu, Islamabad for the State.

Date of hearing: 5th March, 2025.

Judgment

Muhammad Azam Khan, J.---By this common judgment, we intend to dispose of Criminal Appeal No. 49/2024 and Jail Appeal No.170/2024 arising out of the Judgment dated 22.12.2023 ("Impugned Judgment") passed by the learned Additional Sessions Judge/Judge Special Court (CNS), Islamabad-East ("Trial Court") in case FIR No.906/2022 dated 02.11.2022 under Section 9(1)(6)(c) Control of Narcotic Substances Act, 1997 ("CNSA") registered at Police Station Bara Kahu, Islamabad.

1. Both the titled Appeals have been filed by the Appellant/Convict [Naveed Ahmed] against the Impugned Judgment passed by the learned Trial Court whereby the Appellant has been convicted under Section 9(1)(6)(c) CNSA, 1997 and sentenced to undergo ten (10) years rigorous imprisonment with fine of Rupees One hundred and twenty-five thousands (Rs.1,25,000/-) and in default whereof to further undergo one (01) month of simple imprisonment. The benefit of Section 382(B), Code of Criminal Procedure, 1898 ("Cr.P.C.") was also extended to the Appellant.

2. The brief facts of the case as per the contents of FIR are that on 01.11.2022, on the directions of high ups, police officials comprising of Shahid Munir S.I, Sikandar Ali 6677/HC and Bilal 4442/C, were on patrolling duty at Murree Road when spy met Shahid Munir S.I and informed him that a notorious drug peddler namely Naveed Tinda is going at Bheera Pull Stop, having huge quantity of narcotics. Considering the information reliable, police party reached Bheera Pull in front of Punjab Cash and Carry where a person on foot was going towards Abadi who on spy pointation, was overpowered. The said person disclosed his name as Naveed Ahmed alias Tinda son of Muhammad Siddique. From the red color shopper held by the said person in his right hand, heroin powder was recovered which on weighing through digital scale came out to be 1455 grams. From the recovered heroin, 01 gram heroin was separated for chemical analysis. Two parcels (one parcel of remaining heroin along with red color shopper and one parcel of sample heroin) sealed with the seal "SW", were prepared which were taken into possession by Shahid Munir S.I through recovery memo. Hence, Subject FIR was registered against the Appellant/Convict.

3. After necessary investigation, the Appellant was sent up to the Trial Court to face deeds of his culpability, where on commencement of the trial, the Appellant entered the plea of denial, thus, the prosecution in order to bring home the charge, produced as many as five witnesses, and after close of the prosecution side, the Appellant negated the allegations so brought and confronted with the allegations as envisaged under section 342 of Cr.P.C., whereafter, the Appellant neither stepped into the witness box to depose on oath nor produced any evidence in his defense, hence, on conclusion of the trial, the Appellant was convicted and sentenced in the terms mentioned in the para supra. Being aggrieved of the Impugned Judgment, the Appellant/Convict has filed the instant Appeal.

4. Learned counsel for the Appellant argued that the alleged incident occurred on 01.11.2022 at 11:30 PM, coinciding with the Appellant's arrest, while PW-01 and PW-02 stated he was arrested on 02.11.2022. PW-05/I.O Shahid Munir SI claimed he weighed 1455 grams of heroin at the scene, separated only 1 gram, and then filed the complaint. The FIR's version is implausible, as separating just 1 gram sample for chemical analysis is unrealistic, reducing the charge to Section 9(a) CNSA instead of 9(c), making the prosecution's case doubtful and the sentence excessive. No independent witnesses were cited at the time of arrest, warranting the benefit of the doubt for the Appellant. The recovery memo lacked details such as the location, spy information, color of bag, details of the raiding party, and tools used to separate the sample. Contradictions in witnesses statements further support the Appellant's claim that the case was fabricated to show police efficiency. Additionally, the delay in sending the sample for analysis and the failure to produce the case property before the court cast further doubt. The prosecution failed to prove the Appellant was seen selling or transporting heroin, no independent witness confirmed the transaction, and no cash was recovered. The police's failure to include independent witnesses and contradictions in evidence suggest mala fide intent. The trial court has not appreciated evidence, leading to a wrongful conviction. Therefore, the Appellant seeks the appeal's acceptance, the setting aside of the impugned judgment, and his acquittal.

5. Conversely, learned ADPP vigorously resisted the arguments advanced by the counsel for the Appellant and urged that the Trial Court has well appreciated the evidence on record, which does not call for interference; that the prosecution has proved the case against the Appellant/Convict beyond any shadow of doubt; that the safe custody and transmission has also been proved beyond any shadow of doubt, which does not in any manner vitiate the trial and as such requested for dismissal of the Appeal that the prosecution witnesses remained consistent on material aspects of the case; that there is sufficient evidence available on record which connects the Appellant/Convict with the commission of the offence; that narcotics smugglers are ruining the society; that the Impugned Judgment is well reasoned and has been passed keeping in view the evidence available on record; that there is no illegality or irregularity in the Impugned Judgment; and that the instant appeal may kindly be dismissed.

6. I have heard the learned counsel for the parties and have also perused the record with their able assistance.

7. Sikandar Ali 6677/HC (PW-1) came up with a similar story as mentioned in para No.3 of this judgment regarding recovery of aforesaid narcotics from the possession of the Appellant, which was taken into possession through recovery memo (Ex.PA). He further stated that on 08.11.2022, on the direction of I.O, Moharrar Maalkhana handed over to him 01 sealed sample parcel along with English docket and Road Certificate No.823/22. He deposited the sample parcel in NFSA and on return, handed over Road Certificate bearing receipt of NFSA to Moharrar Maalkhana.

8. Umar Hayat 292/HC (PW-2) deposed that on 02.11.2022, Muhammad Nawaz S.I, handed over to him, 01 sealed sample parcel weighing 01 gram and 01 sealed parcel of remaining case property weighing 1454 grams, said to contain heroin powder, stamped with seal "SW" which he kept in Malkhana for safe custody. On 08.11.2022, on the direction of Muhammad Nawaz S.I, he handed over 01 sealed sample parcel to Sikandar 6677 along with Road Certificate No.823/22 for onward transmission to NFSA laboratory who after depositing the sealed sample parcel in NFSA on the same day, handed over to him Road Certificate bearing acknowledgment.

9. Muhammad Bilal (PW-3) has narrated about the arrest of Appellant/Convict and recovery of heroin weighing 1455 grams from his possession. He brought the complaint from the Complainant, Shahid Munir S.I from the spot to the Police Station for registration of FIR. After registration of FIR, he along with Nawaz Gondal S.I came to the place of occurrence along with copy of FIR and the original complaint. I.O recorded his statement under section 161 Cr.P.C.

10. Muhammad Nawaz SI (PW-4) who is the Investigating Officer, deposed that on 02.11.2022, Muhammad Bilal/C brought the complaint written and sent by Shahid Munir S.I on the basis of which he registered FIR Ex.PC and put his endorsement on the complaint. Thereafter, he along with Muhammad Bilal/C went to the place of occurrence at about 12:30 am. Shahid Munir S.I handed over to him the custody of accused, case property and documents. He prepared unscaled site plan Ex.PD, on the pointation of Shahid Munir S.I. He recorded the statements of witnesses, interrogated the Appellant/Convict and formally arrested him. He then left the spot and came back to police station along with Muhammad Bilal/C, where he handed over the case property to Moharrar Maalkhana for placing in safe custody. On 08.11.2022, on his direction, Sikandar Ali/HC collected one sealed sample parcel from Moharrar Maalkhan Umer Hayat along with Road Certificate No.83/22 and English Docket for onward transmission to NFSA, Islamabad. After depositing the sample parcel in NFSA, Sikandar Ali HC came back to the police station and handed over the road certificate bearing receipt of NFSA, to Moharrar Maalkhana who placed the same in the concerned register. He recorded statements under section 161 Cr.P.C of Moharrar Maalkhana and Sikandar Ali HC. On the same day, he handed over case file to the S.H.O for submission of report under section 173 Cr.P.C.

11. Shahid Munir S.I (PW-5) has narrated the same facts as mentioned in para No.3 of this judgment regarding recovery of heroin from the possession of the appellant, separation of sample from the recovered heroin, preparation of parcels and seizure of recovered heroin by him through recovery memo (Ex.PA). He also prepared complaint Ex.PB and sent the same to the police station for registration of FIR through Muhammad Bilal 4442/C. He further stated that after registration of FIR, Muhammad Bilal 4442/C and Muhammad Nawaz S.I came to the place of occurrence with original complaint and copy of FIR. He handed over the case property, custody of accused and recovery memo to Muhammad Nawaz S.I who on his pointation, drafted unscaled site plan. I.O recorded his statement under section 161 Cr.P.C.

12. The learned defense counsel pointed out that the recovery was made on 01.11.2022, while the FIR was lodged on 02.11.2022. In reply to this, it is to mention here that the place of occurrence is Jhugi Stop, Murree road, time and date of occurrence was 11:30 pm on 01.11.2022, while the FIR was lodged at 00:35 am on 02.11.2022, thus the whole proceedings of investigation including writing of complaint/Istighasa on the spot, sending the complaint to the Police station for registration of FIR, takes at least an hour which is quite reasonable and acceptable to a prudent mind.

13. The second contention raised by the learned defense counsel is that only one gram of heroin was separated from the total recovered heroin i.e. 1455 grams, is not sufficient and not required for sample purposes. To this objection, it is to mention here that there is no yardstick of separation of quantity of narcotics for a representative sample which is to be sent for chemical analysis. The Forensic Laboratory has not raised any objection to that effect that the quantity of the sample is so less that it cannot be analyzed for determination as to whether it's a narcotic or not. Hence, one gram of representative sample for sending it for chemical analysis is sufficient to determine the kind of narcotics recovered.

14. The third contention raised by the learned defense counsel is that no private witnesses has been cited by the police during the whole proceedings. In this regard it is to mention that it is held in so many judgment of the superior courts that police officials are as good witnesses as of private witnesses and even otherwise in our society, no one is ready to become witness in such like cases, and this has become judicially recognized fact. Reliance is placed on judgment of the Supreme Court cited in (2023 SCMR 1669) titled "Zain Ali v. The State", relevant portion of which is reproduced as under: -

"As already stated above, the whole case hinges upon the statement of the official witnesses and no independent witness was associated while conducting the search of the vehicle. However, it is well settled that testimonies of the police personnel are required to be treated in the same manner as the testimony of any other witness and there is no principle of law that without corroborating by the independent witnesses, their testimonies cannot be relied upon. This Court has time and again held that reluctance of general public to become witness in such like cases has become judicially recognized fact and there is no way out to consider statement of official witnesses, as no legal bar or restriction has been imposed in such regard. The presumption that a person acts honestly applies, as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds."

1. The fourth contention raised by the learned defense counsel is that sample was sent beyond 72 hours, to the laboratory for its forensic test. In this regard, it is to mention here that though under Rule 4 of Control of Narcotic Substances (Government Analysts) Rules, 2001, requirement for sending the sample for chemical analysis is within 72 hours but in the presence of other cogent, strong, unrebutted and reliable prosecution evidence, this anomaly cannot be given any weightage and specially when there is previous conviction of the accused in similar nature of cases. Hence, this contention carries no bearing on the credibility of the prosecution case. Even otherwise, the said Rules are being directory and not mandatory, which could not control the substantive provisions of the Control of Narcotics Substances Act, 1997 and frustrate its purpose. Failure to follow the said rules would not render the search, seizure and arrest under the parent Act, nullity and would not make the entire case doubtful, thus belated dispatch of incriminating article for expert opinion could not be fatal in the absence of any objection regarding the same having been tampered with or manipulated. Reliance is placed on ruling of the Supreme Court cited in (2011 SCMR 624) titled "Gul Alam v. The State".

2025 M L D 1991

[Islamabad]

Before Muhammad Asif, J

State through Advocate General, ICT, Islamabad---Petitioner

Versus

Mustafa Iqbal---Respondent

Criminal Misc. No. 998 of 2025, decided on 26th June, 2025.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 561-A---Penal Code (XLV of 1860), Ss. 448, 511, 342, 380, 452, 506(ii), 148 & 149---Ex-Officio Justice of Peace, power of---Transfer of investigation---Scope---Application filed by the respondent under S.22-A & 22-B, Cr.P.C., was allowed with the direction to the SSP (Operation) to entrust investigation of the case FIR a named (specific) ASP/SDPO---Legality---Record reflected that FIR No.101 dated 12.02.2025 was registered on the complaint of complainant "MN" against accused/respondent---Respondent-accused, thereafter, moved an application before the SSP (Investigation), for transfer of investigation, followed by an application under Ss. 22-A & 22-B, Cr.P.C., before the Ex-Officio Justice of Peace---Said application was allowed, vide order dated 08.03.2025, with direction to entrust the investigation to "ARQ", ASP/SDPO---SSP (Investigation), due to the transfer of the said officer, assigned the case to another officer---However, on 21.05.2025, the Justice of Peace issued further directions for compliance of the earlier order dated, 08.03.2025, insisting on entrusting the matter to the said named officer and sought an explanation from the SSP (Investigation)---Directive of the Ex-Officio Justice of Peace requiring the SSP (Operations) to entrust the investigation of FIR No.101/2025 specifically to ASP/SDPO "ARQ", did not fall within the lawful parameters of S.22-A(6),Cr.P.C.---Said provisions abundantly made it clear that while an Ex-Officio Justice of Peace might, in appropriate circumstances, issue directions for transfer of investigation from one officer to another, the statute did not authorize such authority to dictate the name of a particular officer to whom investigation must be entrusted---Legislative intent was to provide a supervisory check to ensure fair investigation, not to confer power of administrative control or appointment over the police force---Any interpretation otherwise would amount to enlarging the scope of S.22-A(6), Cr.P.C., beyond its express language and settled judicial precedents---Authority to assign or re-assign investigation to a particular officer vested exclusively in the competent police hierarchy and any insistence upon nomination of a named officer constituted an unwarranted intrusion into the executive domain---Reiteration of the earlier direction through the subsequent order dated 21.05.2025, despite the transfer of the said officer, further demonstrated a departure from the limits prescribed under S.22-A(6), Cr.P.C., and an overreach into matters squarely falling within the administrative discretion of the police authorities---Police, being an executive organ of the State, was mandated to conduct investigation independently and judicial interference in the operational aspect of Assigning Officers undermined that independence and carried the risk of eroding confidence in the impartiality of the investigative process---Petition was allowed, accordingly.

Younas Abbas and others v. Additional Sessions Judge, Chakwal and others PLD 2016 SC 581; Munawar Alam Khan v. Qurban Ali Mallano and others 2024 SCMR 985 and Mir Wais v. Naseebullah and others 2024 MLD 462 rel.

Malik Abdul Rehman, Ms. Sumera Khursheed and Ch. Zulqarnian, State Counsel.

Sajid Cheema, DSP (Legal).

Khalid Mehmood, ASI.

Farhan Nazir Kiyani for Respondent.

Order

Muhammad Asif, J.---The State through Advocate General, Islamabad has invoked the constitutional jurisdiction of this Court, challenging the orders dated 08.03.2025 and 21.05.2025, passed by the learned Additional Sessions Judge-IX, Islamabad (West)/Ex-Officio Justice of Peace. Vide the first impugned order, an application under Sections 22-A and 22-B, Cr.P.C., filed by respondent (Mustafa Iqbal), was allowed with the direction to the SSP (Operations), Islamabad, to entrust investigation of FIR No.101, dated 12.02.2025, registered under Sections 448, 511, 342, 380, 148, 149, 506(ii) and 452 P.P.C at Police Station Margalla, Islamabad, to Mr. Ali Raza Qureshi, ASP/SDPO Margalla. Subsequently, by order dated 21.05.2025, compliance of the aforesaid direction was reiterated.

1. Messrs Malik Abdul Rehman, Ms. Sumaira Khursheed and Ch. Zulqarnain, learned State counsel assisted by Mr. Sajid Cheema, DSP (Legal), submitted that the impugned orders are without lawful sanction, as Section 22-A(6)(ii), Cr.P.C., does not empower an Ex-Officio Justice of Peace to dictate the nomination of a specific investigating officer or to exercise supervisory control over the investigative process. It was contended that such interference transgresses the jurisdictional limits, undermines the autonomy of the police hierarchy, and constitutes encroachment into the administrative domain. Thus, they submitted that the impugned orders are patently illegal, arbitrary, and without jurisdiction, hence are liable to be set aside.

2. Learned counsel for respondent No.1, on the other hand, supported the impugned orders and argued that the purpose of invoking jurisdiction under Sections 22-A and 22-B, Cr.P.C. was to ensure a fair and impartial investigation, which is a fundamental right of an accused as well as the complainant. It was contended that the order was aimed at safeguarding transparency, not interfering with the police hierarchy, and thus calls for no interference by this Court.

3. Heard. A careful perusal of the record reflects that FIR No.101 dated 12.02.2025 was registered at Police Station Margalla, Islamabad, on the complaint of Muhammad Nasir. The respondent-accused (Mustafa Iqbal), thereafter, moved an application before the SSP (Investigation), Islamabad, for transfer of investigation, followed by an application under Sections 22-A and 22-B Cr.P.C before the learned Additional Sessions Judge-IX, Islamabad (West)/Ex-Officio Justice of Peace. The said application was allowed, vide order dated 08.03.2025, with direction to entrust the investigation to Mr. Ali Raza Qureshi, ASP/SDPO Margalla. The SSP (Investigation) Islamabad, due to the transfer of the said officer, assigned the case to another officer. However, on 21.05.2025, the learned Justice of Peace issued further directions for compliance of the earlier order dated 08.03.2025, insisting on entrusting the matter to the said named officer and sought an explanation from the SSP (Investigation), Islamabad. It would be appropriate to reproduce the relevant para of the impugned order dated 08.03.2025:

"It is worth mentioning that fair investigation in a case is the right of both the parties to the litigation, and if the petitioner is not satisfied with the investigation already carried out, then demand of the day is that to redress his grievance. Hence, in the attending circumstances application is allowed. The SSP Operations, is directed to entrust the investigation of FIR No.101/25 dated 12.02.2025 under section 506(ii) 452, 448, 511, 342, 380, 148, 149 P.P.C, P.S Margalla Islamabad, to ASP/SDPO Mr. Ali Raza Qureshi."

1. From perusal of the findings recorded hereinabove, it is manifest that the directive of the learned Ex-Officio Justice of Peace requiring the SSP (Operations), Islamabad, to entrust the investigation of FIR No.101/2025 specifically to ASP/SDPO Mr. Ali Raza Qureshi, does not fall within the lawful perameters of Section 22-A(6), Cr.P.C. For convenience, the said provisions are reproduced hereunder:-

Section-22-A(6). An ex-officio Justice of the Peace may issue appropriate directions to the police authorities concerned on a complaint regarding:

(i) Non-registration of criminal case;

(ii) Transfer of investigation from one police officer to another; and

(iii) Neglect, failure or excess committed by a police authority in relation to its functions and duties."

1. The above-mentioned provisions abundantly make it clear that while an Ex-Officio Justice of Peace may, in appropriate circumstances, issue directions for transfer of investigation from one officer to another, the statute does not authorize such authority to dictate the name of a particular officer to whom investigation must be entrusted. The legislative intent is to provide a supervisory check to ensure fair investigation, not to confer a power of administrative control or appointment over the police force. Any interpretation otherwise would amount to enlarging the scope of Section 22-A(6), Cr.P.C. beyond its express language and settled judicial precedents.

2. The authority to assign or re-assign investigation to a particular officer vests exclusively in the competent police hierarchy, and any insistence upon nomination of a named officer constitutes an unwarranted intrusion into the executive domain. This view finds support from the principles laid down by the Hon'ble Supreme Court of Pakistan in Younas Abbas and others v. Additional Sessions Judge, Chakwal and others (PLD 2016 SC 581), and subsequently reiterated in Munawar Alam Khan v. Qurban Ali Mallano and others (2024 SCMR 985), herein it was cautioned that the provisions of Sections 22-A and 22-B, Cr.P.C., though beneficial, must not be misused or exercised in a mechanical manner.

2025 M L D 14

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Kalhoro and Arbab Ali Hakro, JJ

Zafar Ahmed Shaikh and others---Petitioners

Versus

Province of sindh through Secretary Revenue Department and 6 others---Respondents

Constitution Petition No. D-203 of 2024, decided on 24th April, 2024.

Specific Relief Act (I of 1877)---

----S.12---Constitution of Pakistan, Art. 199---Suit for Specific performance of agreement to sell---Balance sale consideration, deposit of---Object, purpose and scope---Constitutional jurisdiction of High Court---Scope---Petitioner/plaintiff sought specific performance of agreement to sell regarding suit property but did not deposit balance sale consideration in Court---Trial Court and Lower Appellate Court directed petitioner/plaintiff to deposit balance sale consideration in Court---Validity---Absence of element of readiness and willingness on behalf of petitioner/plaintiff, could be interpreted as an attempt to evade his responsibilities under the contract---This was a crucial point in legal analysis, as it underscored importance of actions of petitioner/plaintiff in demonstrating his commitment to fulfilling his contractual obligations---Court's directive to deposit balance sale consideration was not merely a procedural requirement but a substantive test of bona fide of petitioner/plaintiff and readiness to perform his part of contract---Plea of petitioner/plaintiff was unanimously rejected by two lower Courts---Within the purview of Constitutional jurisdiction, burden of proof rested on petitioner/ plaintiff to demonstrate that orders of lower Courts were marred by jurisdictional errors or that Courts exercised their jurisdiction in a manner that was either unlawful or arbitrary---Petitioner/plaintiff was also required to show that significant irregularities were committed by lower Courts, which would warrant High Court's intervention under Art.199 of the Constitution---High Court declined to interfere in orders passed by two Courts below as there were no jurisdictional defects or procedural improprieties and invocation of High Court's Constitutional jurisdiction was inappropriate---Constitutional petition was dismissed, in circumstances.

Messrs DW Pakistan (Private) Limited, Lahore v. Begum Anisa Fazl-i-Mahmood and others 2023 SCMR 555; Muhammad Asif Awan v. Dawood Khan and others 2021 SCMR 1270; Rab Nawaz v. Mustaqeem Khan 1999 SCMR 1362; Muhammad Abdul Rehman Qureshi v. Sagheer Ahmad 2017 SCMR 1696 and Masood Ahmad Bhatti and another v. Khan Badshah and another 2024 SCMR 168 rel.

2022 SCMR 616; 2021 SCMR 686; 2020 SCMR 171 and 2023 CLC 1363 ref.

Ateeq-ur-Rehman Soomro for the Petitioner.

Respondent No. 5 in person.

Ghulam Abbas Kuber, A.A.G. for Respondents Nos. 1 to 4.

Date of hearing: 26th March, 2024.

Order

Arbab Ali Hakro, J.---Invoking the jurisdiction of this Court under Article 199 of the Constitution of Pakistan, 1973, the Petitioner has challenged the legality of the Order dated 31.01.2024, passed by the Court of III-Additional District Judge, Sukkur, referred to herein as "the Revisional Court", as well as the Order dated 16.11.2023, passed by the Court of I-Senior Civil Judge, Sukkur, hereinafter referred to as "the Trial Court", whereby the Petitioner was directed to deposit balance sale consideration before trial Court.

1. The brief facts of the case are that the Petitioner instituted a suit for the specific performance of an agreement to sell dated 19.3.2022 against the respondents. The Petitioner stated that he purchased the property bearing No.F-31/38-A, measuring 300-2 Sq. Yds, situated at Barrage Colony, Sukkur (the "suit property"), from respondent No.5. The consideration for this purchase was Rs.17,000,000/-, out of which Rs.2,500,000/- was paid as earnest money. It is averred in the plaint that respondent No.5 requested the Petitioner, at the time of the execution of the agreement to sell, through witnesses Jameel Ahmed and Hazoor Bux @ Abid, to issue cheques for the remaining sale consideration amount of Rs.14,500,000/-. In pursuance of this request, the Petitioner issued five cheques of different dates and handed them over to witness Jameel Ahmed, who is a close friend of respondent No.5, as security. The plaint states that the Petitioner learned that the High Court passed an order that the properties in Barrage Colony cannot be alienated. Upon learning this fact, the Petitioner approached the said witness, Jameel Ahmed, for the return of the cheques, who stated that the cheques had been misplaced. After that, the Petitioner moved an application to the concerned Manager of the Bank to stop the payment and lodged an N.C. at the concerned Police Station. It is also averred that respondent No.5, with mala fide intentions and ulterior motives, deposited the cheques in the concerned bank for encashment, which were bounced. Afterwards, the Petitioner approached respondent No.5 for the execution of the Sale Deed in respect of the suit property. The Petitioner is ready to perform his part of the contract by paying the remaining sale consideration amount, but respondent No.5 kept on giving him false hopes. As a result, the Petitioner filed the suit.

2. Respondent No.5 contested the suit and filed a statement that the Petitioner had not deposited the balance consideration at the time of the suit's institution. Therefore, the Petitioner's suit is liable to be dismissed. Upon receiving notice, the Petitioner filed his objections to this statement. After hearing the parties, the trial court, vide Order dated 16.11.2023, directed the Petitioner to deposit the remaining sale consideration before the Court by the next hearing. In case of non-compliance or default, the suit will be dismissed. The Petitioner challenged this Order before the Revisional Court by filing a Revision Application, which was also dismissed as per the Order dated 31.01.2024.

3. At the very outset, the learned counsel representing the Petitioner contended that both learned lower Courts erroneously passed the impugned orders without applying judicious mind so, also without considering the legal proposition of law, there is no provision of Specific Relief Act, 1877, which pre-requisites vendee to first deposit balance consideration amount for seeking enforcement of agreement; that admittedly Petitioner purchased the suit property by executing sale agreement and has paid part sale consideration amount and he is ready to pay balance consideration amount, but Respondent No.5 with mala fide intention is not receiving the balance consideration. Lastly, he prayed that an instant petition may be allowed by setting aside the impugned orders passed by both courts below.

4. Conversely, respondent No.5, appearing in person, has expressed support to the impugned orders, and the reasons for his support are those stated in the orders. He has placed reliance on the case law reported as 2023 SCMR 555, 2022 SCMR 616, 2021 SCMR 686, 2020 SCMR 171 and 2023 CLC 1363.

5. The learned A.A.G argues that there are concurrent findings of both courts below, and no gross irregularity or infirmity has been pointed out to compel the Court to disturb the findings of the trial Court. In a suit for specific performance of the sale agreement, it is a pre-requisite for the petitioner to perform his part of the contract; hence, he was bound to deposit the remaining sale consideration amount, which he failed to do.

6. We have heard counsel for the parties, have perused the record with their assistance, and have taken guidance from case law submitted by them.

7. In the context of the Specific Relief Act of 1877, it is unequivocally clear that there is no explicit provision requiring the vendee to deposit the remaining sale consideration upon filing the suit for the specific performance of a contract. However, it is crucial to note that the relief of specific performance is discretionary and cannot be claimed as a matter of right. Therefore, the vendee is obligated to assert that he has fulfilled all the conditions as per the agreement he was bound to perform from the date of its execution till filing of the suit. He must demonstrate his readiness and willingness to perform his part of the contract. This readiness and willingness is not merely a statement in the plaint but must also be substantiated through supporting evidence such as a pay order, bank statement or other material. This evidence should unequivocally establish his ability to perform his part, leaving no room for a doubt in the mind of the Court that the proceedings seeking specific performance have not been initiated to cover up his default or to gain time to generate resources.

8. In this context, the Court, in order to assess his capacity to perform his intention to purchase, may direct the vendee to deposit the balance sale consideration. The readiness and willingness on the part of the vendee to perform his part of the obligation also prima facie demonstrates that the non-completion of the contract was not the fault of the vendee. The contract would have been completed if the vendor had not renounced it. This assertion underscores the importance of the vendee's role and responsibility in successfully executing the agreement.

9. In the case of Messrs DW Pakistan (Private) Limited, Lahore v. Begum Anisa Fazl-i-Mahmood and others (2023 SCMR 555), the Supreme Court of Pakistan has made a comprehensive discussion on the matter of depositing balance consideration in the Court in a suit for Specific Performance of Contract. The Supreme Court of Pakistan revisited several of its citations before reaching a conclusion that it is beyond any doubt that in a suit for specific performance of a contract to sell, the Court may order deposit of sale consideration. The act of depositing the amount in the Court not only demonstrates readiness and willingness but also exhibits good faith and bona fide intention. This is subject to the final outcome of the suit on merits, indicating that the vendee was not incapable of performing his part of the contract, at least in terms of payment of sale consideration as per the covenant. This is unless there is a violation of any other essential term of the contract which may debar the relief in terms of Section 24 of the Specific Relief Act of 1877. This aspect can only be thrashed out after leading evidence by the parties.The Court further clarified that the deposit of the sale or balance consideration in the Court is not an automatic requirement. There must be an order of the Court for deposit. When the Trial Court passes the Order for deposit of sale consideration or balance sale consideration, it should also afford some reasonable time to deposit the money in Court for compliance of the Order. The Court should also clarify the consequences of non-compliance of the Order in advance. This ruling provides clear guidelines on depositing balance consideration in the Court in cases of specific performance of a contract to sell. It emphasizes the importance of demonstrating good faith, readiness, and willingness and the need for clear communication from the Court regarding the requirements and consequences. In case of Muhammad Asif Awan v. Dawood Khan and others (2021 SCMR 1270), it was held by the Supreme Court that: "Besides, it is to be kept in mind that strict non-compliance of the directions of the Court by a vendee to deposit the balance sale price while keeping the lis of specific performance alive has totally different consequence than the cases where the Court while directing the balance price terminates the lis or where the direction to deposit the balance sale price are issued at the instance of the vendor who has shown his readiness to perform his part of the contract. In the first instance, the Court does not lose its jurisdiction to review its order by extending time for depositing the balance sale price for the simple reason that the vendee on the face of denial or plea of termination of agreement has only to establish his bona fide/seriousness to standby his part of the commitment, whereas, in the second instance the Court ordinarily becomes functus officio and loses its authority on the lis and consequently has no jurisdiction to extend time for the deposit of the balance sale price".

10. In this case, the trial Court is tasked with evaluating the bona fide and readiness of the Petitioner, who had pleaded in his plaint that he is prepared to perform his part of the contract by paying the balance consideration. However, respondent No.5 kept the Petitioner on hollow hopes, leading the Court to direct the Petitioner to deposit the balance sale consideration. Instead of complying with this Order, the Petitioner challenged it. However, it is important to note that challenging the Order does not absolve the Petitioner of his equitable burden to establish his readiness and willingness to perform his part of the agreement when seeking specific performance. The Petitioner's actions in this case; absence of an element of readiness and willingness, could be interpreted as an attempt to evade his responsibilities under the contract. This is a crucial point in the legal analysis of this case, as it underscores the importance of the Petitioner's actions in demonstrating his commitment to fulfilling his contractual obligations. The Court's directive to deposit the balance sale consideration was not merely a procedural requirement but a substantive test of the Petitioner's bona fide and readiness to perform his part of the contract.

11. In the realm of contract law, there are numerous instances where, despite the absence of explicit fraud, a contract may lack the requisite equity and fairness for the Court to exercise its extraordinary jurisdiction in specific performance. The Court's assessment of a contract's fairness extends beyond the contract's terms to encompass all surrounding circumstances. This principle is underscored by the judgments of the Supreme Court of Pakistan in the cases of Rab Nawaz v. Mustaqeem Khan (1999 SCMR 1362) and Muhammad Abdul Rehman Qureshi v. Sagheer Ahmad (2017 SCMR 1696). These cases highlight the Court's commitment to ensuring that contracts are not only legally sound but also equitable and fair. In the present case, the Petitioner seeks specific performance of an agreement dated 19.3.2022 for a consideration of Rs.17,000,000/-. This request comes after the Petitioner only paid Rs.2,500,000/- as earnest money. At the same time, the value of the suit property has increased exponentially, and the value of the Rupee has significantly depreciated. Furthermore, the Petitioner has failed to deposit the remaining sale consideration in compliance with the impugned Order dated 16.11.2023. The Petitioner's conduct, in this case, demonstrates a lack of seriousness and willingness to fulfil the contractual obligations. The exercise of jurisdiction in such a scenario may lead to a miscarriage of justice and provide an unfair advantage to the Petitioner. The Petitioner has effectively bound down respondent No.5 for several years by paying only a small amount. This situation underscores the importance of considering all relevant factors and circumstances when assessing the fairness of a contract. It is a well-established principle of law that when a vendor declines to receive the sale consideration, the vendee who seeks specific performance of the contract of sale must deposit the said amount with the court. The vendee is obligated to prove his continuous readiness and willingness to pay the consideration, as well as to provide evidence of the availability of funds. The enforcement of the vendor's reciprocal obligations is contingent upon the vendee's ability to demonstrate not only his willingness but also his capacity to fulfill his contractual duties. This principle is elucidated in the case of Masood Ahmad Bhatti and another v. Khan Badshah and another (2024 SCMR 168).

2025 M L D 49

[Sindh]

Before Muhammad Shafi Siddiqui CJ and Jawad Akbar Sarwana, J

Rouque Martin D'Mello and 9 others---Appellants

Versus

Federation of Pakistan through Secretary Ministry of Housing and Works Islamabad and 5 others---Respondents

H.C.A. No. 277 and C.M.As. Nos. 1699 to 1701 of 2024, decided on 23rd August, 2024.

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

----Ss.19(1) & 17(2)---Law Reforms Ordinance(XII of 1972), S. 3---Civil Procedure Code (V of 1908), O.XXXIX, R.2(3), Ss.94(c) & 151---Constitution of Pakistan, Art.204---Issuance of contempt notice---Suit for declaration, permanent injunction and cancellation of license of school operations in residential area---Passing of injunctive order in two parts i.e. firstly by suspending the license and secondly by suspending the school operations---Operation of first part of injunctive order was suspended by the Appellate Court---Respondents/plaintiffs filed application under O.XXXIX, R.2(3), Ss. 94(c) & 151, C.P.C., along with another application---Contempt notice was issued to the appellants/defendants---Contention of the appellants was that Court had no jurisdiction to initiate contempt proceedings against whom no case of contempt was made out---Validity---Contention of the petitioner that the application was filed under O. XXXIX, Rule 2(3) read with Ss.94(c) & 151, C.P.C., and the show-cause notice was issued under a different law, was far-fetched---Invocation of the Contempt of Court Ordinance, 2003, before the defence of the appellants was taken and considered by the Single Judge, was a premature question---Issuing a show-cause notice under the Ordinance would not cause prejudice to the rights likely to be determined by the Single Judge---Contemnors/ appellants were given the opportunity to file their respective replies against the accusations and allegations raised in the contempt application---Nomenclature of the application itself would not take away the jurisdiction being exercised by the Single Judge---Text of the application itself showed that the respondents/plaintiffs of the suit had prayed for proper proceedings required under the law, which could include the relevant contempt laws as found applicable---Appellants were well within their right to respond to the show-cause notice by raising questions as to whether the competence of the show-cause issued under the Contempt of Court Ordinance, 2003 and Art. 204 of the Constitution was proper---Question of jurisdiction itself was sub-judice before the Single Judge and he retained competence to decide such issue---Appeal stood disposed of accordingly.

Dr. M.O. Ghani v. Dr. A.N.M. Mahmood PLD 1966 SC 802; Muhammad Sadiq Leghari's casePLD 2002 SC 1033 and Syed Naghman Haider Zaidi v. Zahid Mehmood PLD 2009 SC 380 distinguished.

Makhdoom Ali Khan and Arshad Tayebally along with Talha Jawed for Appellants.

Ms. Rizwana Ismail appeared voluntarily representing the Applicants of the Contempt Application.

Salahuddin Ahmed appearing in support of Appellant (however we did not find his Vakalatnama in the appeal).

Zahid Ebrahim appearing for Appellants in the connected Appeal(s) filed by the Parents of children of Cedar (Pvt.) Ltd. run school(s).

Date of hearing: 23rd August, 2024.

Order

Impugned in this appeal is an order dated 19.08.2024 whereby learned Single Judge on an application filed under Order XXXIX Rule 2(3) read with Sections 94(c) and 151, C.P.C. filed in Suit No.746/2024 issued a show-cause notice to the alleged contemnors, as arrayed in the said application.

Brief history of the case is that the residents of the area filed Suit No.746 of 2024 for declaration, permanent injunction and cancellation in respect of a school, alleged to be operating on a residential premises. Substantially, they were seeking a declaration to the effect of running a school in the subject property on Plot No.34/16-A, Block 6, PECHS, Karachi, measuring 1,221 sq. yds. and also filed an application seeking a restraining order for the operation of the school, namely The Cedar School PECHS Campus, Karachi (hereinafter referred to as "CS PECHS Campus"). It was operated by Cedar (Private) Limited (Respondent No.10). The learned Single Judge heard the Misc. Application/injunction application in the referred suit and then passed an injunctive order dated 10.08.2024. While deciding the pending application, learned Single Judge was also apprised of the fact as to the pendency of an earlier petition, i.e. C.P. No.D-3209 of 2024, in respect of some of the issues which were found to be overlapping in the instant suit connected to the Subject Property, such as, the enforcement of Regulations 18-4.2.2 and 25-5.2 of the Karachi Building and Town Planning Regulations, 2002, etc. Substantially, the order dated 10.08.2024 was passed considering the pendency of the aforesaid petition and also in terms of paragraph 24, the order considered the validity of the school license in respect of the CS PECHS Campus in Karachi having been issued to Cedar (Pvt.) Limited by the Director General, Directorate of Inspection and Registration of Private Institutions Sindh (Defendant No.11 in Suit No.746/2024)(Respondent No.9 in this Appeal). The substantive part of the order, which is embodied in paragraph 24 reads as follows:-

"For the foregoing reasons the C.M.A. No.10199 of 2024 is allowed and the relief prayed for therein is moulded by giving directions to the Defendant No.11 to forthwith suspend the license granted by it to the Defendant No.8 for operating a school on the Said Property as prima facie the license has been issued arbitrarily by ignoring Regulation 18-4.2.2 and Regulation 25-5.2 of the Karachi Building and Town Planning Regulations, 2002 and with further directions to the Defendant No.11 to ensure that until the final decision the Defendant No.8 does not commence its operations of a school on the Said Property. CMA No.10263 of 2024 and CMA No.10312 of 2024 are correspondingly disposed of on account of such an order as having served their purpose."

The order dated 10.08.2024 has two parts; in part one the Director General, Directorate of Inspection and Registration of Private Institutions Sindh (Defendant No.11) was directed to suspend the license to operate the school granted to Cedar (Pvt.) Ltd. in respect of its PECHS Campus only; whereas in the second part the Defendant No.11 was further directed to ensure that until the final decision in the Suit, Cedar (Pvt.) Ltd. should not commence its operation of the CS PECHS Campus. Aggrieved by the order dated 10.08.2024 some appeals were filed by the owner of the property as well as by the tenant operating the school, i.e. Cedar (Pvt.) Ltd. and the appellants obtained an ad-interim order on 16.08.2024 from this Court. The substantive part of the ad-interim order of this Bench in those appeals, i.e. High Court Appeals Nos. 268 and 269 of 2024 is as under:-

"In the meantime operative part of the impugned order, whereby license was directed to be suspended in respect of the subject property, only to such an extent shall remain suspended."

On realizing the scope of the aforesaid order, a contempt application was then filed on 19.08.2024 along with urgent application. Learned Single Judge while considering the application under Order XXXIX Rule 2(3) read with Sections 94 and 151 C.P.C. issued show-cause notice to the alleged contemnors pursuant to Section 17(2) of Contempt of Court Ordinance, 2003 and notices were also issued to Advocate General Sindh per Contempt of Court Ordinance, 2003.

Aggrieved of the above impugned order dated 19.08.2024, the instant appeal has been filed on several counts. Firstly, that the cognizance (under Contempt of Court Ordinance, 2003), in a way, is like a suo-motu order, which should not have been taken by the learned Single Judge as the application itself was filed under Order XXXIX Rule 2(3), C.P.C., which has different implication as compared to the actions required under Contempt of Court Ordinance, 2003. Mr. Makhdoom Ali Khan in this regard has relied upon the case of Dr. M.O. Ghani v. Dr. A.N.M. Mahmood (PLD 1966 SC 802).

Further argument of Mr. Makhdoom Ali Khan appearing for appellants is that the jurisdiction of issuing show-cause notice directly should not have been exercised by the learned Single Judge. Additionally, he contended that the order dated 16.08.2024 passed by this Division Bench required interpretation; in that case alone, the matter had to be left to this bench to decide the possible interpretation of the said order; hence, per learned counsel, no case for contempt of Court could be made out, until it is resolved.

Finally learned counsel contended that the Court has no jurisdiction to initiate contempt of Court proceedings against whom no case of contempt is made out. He relied upon the judgments of the Supreme Court in the cases of Muhammad Sadiq Leghari (PLD 2002 SC 1033) and Syed Naghman Haider Zaidi v. Zahid Mehmood (PLD 2009 SC 380) in support of the contention.

Mr. Tayebally, additionally submitted that the impugned order dated 19.08.2024 was too harsh and disturbed the contemnors.

Mr. Salahuddin principallhy supported the arguments of Mr. Mukhdoom Ali Khan.

We have heard learned counsel for the appellants, and Ms. Rizwana Ismail, on the above proposition and perused the record.

This appeal is filed under section 19(1) of Contempt of Court Ordinance, 2003 read with Section 15 of the Ordinance X of 1980 and Section 3 of the Law Reforms Ordinance, 1972, presumably on the understanding that the impugned order was passed under special law, hence invoked Section 19(1) of Contempt of Court Ordinance, 2003. Mr. Makhdoom's question that the Contempt of Court Ordinance, 2003 cannot be invoked, is a premature question when the defence is yet to be taken by the Appellants and considered by the learned Single Judge. We are also not satisfied that the issuance of a show-cause notice under the ibid law would cause prejudice to the rights likely to be determined by the learned Single Judge. The alleged contemnors have been given the opportunity to file their respective replies against the accusation and allegations raised in the contempt application and jurisdiction could never be an exclusion. The nomenclature of the application itself would not take away the jurisdiction being exercised or if any other jurisdiction that could be exercised by the learned Single Judge which would eventually be determined after hearing. On this count alone, Mr. Mukhdoom's argument that the application was filed under Order XXXIX Rule 2(3) read with Sections 94(c) and 15 of C.P.C. and show cause was issued under a different law is far-fetched at this point in time. Without prejudice to the above, the text of the application itself shows that therein, the plaintiffs of the suit have prayed for proper proceedings required under the law, which in any case could be under the relevant Contempt laws as found applicable.

Without commenting as to whether an order issuing show-cause notice under the Contempt of Court Ordinance, 2003 would constitute an appealable "order" as contemplated under section 19 of the ibid Act or not, we are inclined to leave this aspect open for debate in some other appropriate case as it is nobody's case before us.

The appellants are well within their right to respond to the show- cause by raising questions as to whether the competence of the show- cause issued under the Contempt of Court Ordinance, 2003 and Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973 is proper. The question of jurisdiction itself is sub-judice before the learned Single Judge, and he retains competence to decide such issue relying on Tareen's case.

The questions raised by the learned Counsels for the Appellants before us could be taken as a defence by filing proper counter-affidavits/replies as mentioned above. The learned Single Judge must first address these questions and any others that may come up during the hearing. We are not inclined, at this stage, to take up such questions in an appeal against a show-cause notice when the application itself is not heard and/or taken to its logical end after hearing.

We may also add here that the citations relied upon by the learned Counsels for the Appellants either did not fit the facts and circumstances of the case in hand, or dealt with contempt of court cases prior to the promulgation of the Contempt of Court Ordinance, 2003 or were distinguishable for both reasons mentioned herein.

2025 M L D 60

[Sindh]

Before Muhammad Shafi Siddiqui and Sana Akram Minhas, JJ

Muhammad Hussain---Appellant

Versus

Imtiaz Ahmed and another---Respondents

High Court Appeal No. 415 of 2022, decided on 27th June, 2024.

Malicious prosecution---

----Damages---Simpliciter and honorable acquittals---Distinction---Respondents / plaintiffs sought recovery of damages from appellant / defendant for malicious prosecution---Judge in Chambers of High Court as Trial Court decreed the suit in favour of respondents / plaintiffs---Plea raised by appellant / defendant was that acquittal of respondents / plaintiffs was on the basis of benefit of doubt and was not an honorable acquittal---Validity---Both terms "simpliciter acquittal" and "honourable acquittal" refer to situations where accused is acquitted of charges---Simpliciter acquittal is a basic legal determination based on lack of evidence, whereas honorable acquittal carries a more positive connotation, potentially reflecting broader vindication of innocence or character of accused---Initiation of criminal proceedings despite full and final settlement of appellant / defendant's claim and lack of subsequent legal actions by appellant / defendant after passing of acquittal judgment were significant indicators of malicious intent---Division Bench of High Court declined to interfere in judgment and decree passed by Trial Court (Judge in Chambers of High Court)---Intra Court Appeal was dismissed, in circumstances.

Abdul Majeed Khan v. Tawseen Abdul Haleem 2012 CLD 6; Muhammad Akram v. Farman Bi PLD 1990 SC 28; Abdul Rauf v. Abdul Razaq PLD 1994 SC 476; Muhammad Yousaf v. Abdul Qayyum PLD 2016 SC 478; Niaz v. Abdul Sattar PLD 2006 SC 432; Rehana Jadoon v. Arab Khan 2019 MLD 337; Dr. Muhammad Islam v. Government of NWFP 1998 SCMR 1993 and Faraz Naveed v. District Police Officer Gujrat 2022 SCMR 1770 rel.

Feroz Qadir Attari for Appellant.

Mahmood Anwar Baloch for Respondents.

Date of hearing: 21st May, 2024.

Judgment

Sana Akram Minhas, J.---This High Court Appeal impugns a judgment and decree dated 7.11.2022 and 16.1.2023 respectively ("Impugned Judgment") of a learned Single Judge in Suit No.434/2019 (Imtiaz Ahmed and another v. Muhammad Hussain) ("Suit 434"). The Appeal arises from a Suit for "Damages", initiated on 5.3.2019 by Respondents (Plaintiffs in Suit 434) against Appellant (Defendant in Suit 434).

Nature of Claim

1. By way of Suit 434, Respondents brought an action against Appellant seeking substantial compensation for damages resulting from what they claimed to be a malicious prosecution. The primary claims in the Plaint included:

· Rs.16,720,000/- for lost salary

· Rs.20 million for general damages

· An additional Rs.20 million for Respondent No.2 due to suffering caused by Appellant

· Costs of Suit 434

1. Central Allegations and Defence In Suit 434

Claims of Respondents (as Plaintiffs in Suit 434):

i) As per Plaint, Respondent No.1, residing in the UAE with his family and working as an Administration Manager with a monthly salary of Dirhams 20,000/- (approximately Rs.760,000/-), while on a visit was arrested at Karachi Airport on 18.6.2016 by the Federal Investigation Agency ("FIA") due to a criminal case lodged by Appellant. This arrest led to Respondent No.1's incarceration in Karachi Central Jail (who was admitted to bail after 40 days) and subsequent loss of his job. The arrest was linked to FIR No.56/2011 dated 2.12.2011 ("FIR") (Exhibit PW-1/2), resulting in significant financial and reputational damage to Respondent No.1 and his family. The Appellant's false case aimed to deprive Respondent No.1 of his substantial foreign income.

ii) Respondent No.2 (mother of Respondent No.1), experienced immense emotional distress and health issues due to the situation, and the children's education in UAE was adversely impacted leading to its cessation.

iii) Respondent No.1 was ultimately acquitted vide judgment dated 26.3.2018 ("Acquittal Judgment") (Exhibit No.PW-1/9), in the criminal case initiated by Appellant, with the court (viz. Special Court (Offences in Banks), Sindh at Karachi) citing insufficient evidence against him. Thereafter, Respondents instituted Suit 534.

Defence of Appellant (as Defendant in Suit 434):

i) Appellant justified the criminal complaint, alleging Respondent No.1 fraudulently withdrew Rs.785,000/- from Appellant's United Bank Limited ("UBL") account.

ii) Appellant emphasized that Respondent No.1's acquittal was attributed to benefit of the doubt rather than an honourable or clear exoneration, thus contesting the claim of malicious prosecution.

Issues Framed and Evidence Recorded

1. Issues were settled and the Evidence Commissioner was appointed on 12.11.2020, whereafter evidence was recorded in Suit 434.

Impugned Judgment

1. The Single Judge concluded that Respondent No.1 was maliciously prosecuted, causing significant mental and financial harm. Therefore, Appellant was held liable to pay Rs.3 million (Rupees Three Million) as general damages with 10% markup from Suit 434's initiation date until realization. Additionally, Respondents were found entitled to the costs of Suit 434. The Impugned Judgment acknowledged the impact on Respondents reputation and the undue suffering caused by Appellant's actions.

Respective Arguments

1. In their remarkably brief submissions before us, both learned Counsel merely referenced and reiterated the arguments previously advanced by them before the Single Judge, as documented in the Impugned Judgment.

Point For Determination

1. The submissions from each Counsel have been duly considered, and we have examined the records available to us.

2. The central point for determination is whether Respondent No.1's acquittal, attributed to the benefit of the doubt rather than an honourable or clear exoneration, precludes the claim of malicious prosecution.

Legal Principles Governing Malicious Prosecution

1. A person who is maliciously prosecuted on a criminal charge can sue in tort for damages if the prosecution ends in his acquittal.

Elements of Malicious Prosecution

1. The determination of a claim for malicious prosecution hinges on demonstrating the following elements:

i) The prosecution of the plaintiff by the defendant;

ii) The prosecution was initiated with malice and not to further the ends of justice;

iii) The prosecution lacked reasonable and probable cause;

iv) The prosecution must have ended in favour of the person proceeded against;

v) Damage was suffered by the party proceeded against due to the prosecution (such as reputational harm, emotional distress, or financial loss).

Establishing malice and the absence of reasonable and probable cause are crucial elements i.e. the nub, for a plaintiff to succeed in his claim. Breaking these down:

(a) Malice refers to a defendant's state of mind and can be inferred from the circumstantial evidence when initiating the prosecution. It implies that the defendant acted with ill will, spite or improper motives, rather than a genuine belief in the guilt of the accused.

(b) Absence of reasonable and probable cause means that the prosecution lacked a reasonable basis or justification. Reasonable and probable cause refers to a reasonable ground to suspect that the person accused is guilty of the alleged offence. It means that, given certain assumed true circumstances, a reasonable and prudent person would conclude that the accused is likely guilty of the alleged crime.

While proving the absence of reasonable and probable cause is necessary, it alone is insufficient to establish malice. For instance, if an accused is acquitted based on the benefit of the doubt, it does not automatically indicate malicious prosecution. Absence of probable cause suggests the prosecution was unjustified but does not conclusively prove malicious intent. It can, however, serve as evidence that the prosecution was initiated out of spite or improper motives rather than a genuine belief in guilt. Thus, in a claim of malicious prosecution, the plaintiff must demonstrate both the absence of reasonable and probable cause and the presence of malice to prevail in court.

Ensuring Justice and Preventing Abuse

1. Emphasizing both elements ensures that only truly unjust prosecutions driven by wrongful motives are classified as malicious. This dual requirement protects against wrongful prosecution while also preventing frivolous claims where the prosecutor genuinely believed in the accused's guilt, even if incorrectly.

Simpliciter Acquittal Not Honourable Acquittal

1. Although both terms refer to situations where the accused is acquitted of charges, a simpliciter acquittal is a basic legal determination based on lack of evidence, whereas an honourable acquittal carries a more positive connotation, potentially reflecting a broader vindication of the accused's innocence or character.

2. The Impugned Judgment has repelled Appellant's contention that since Respondent No.1's acquittal was based on benefit of the doubt and was not an "honourable acquittal", hence Respondent No.1 could not maintain a suit for malicious prosecution. In doing so, it has cited the Supreme Court's determination in Dr. Muhammad Islam v. Government of NWFP, wherein it was concluded:

We are inclined to uphold the above view inasmuch as all acquittals even if these are based on benefit of doubt are honourable for the reason that the prosecution has not succeeded to prove their cases against the accused on the strength of evidence of unimpeachable character. It may be noted that there are cases in which the judgments are recorded on the basis of compromise between the parties and the accused are acquitted in consequence thereof. What shall he the nature of such acquittals? All acquittals are certainly honourable. There can be no acquittals, which may be said to be dishonourable. The law has not drawn any distinction between these types of acquittals.

1. The decision in Dr. Muhammad Islam (supra) was recently referenced by the Supreme Court in Faraz Naveed v. District Police Officer Gujrat in the context of reinstatement of a dismissed employee following acquittal, asserting that the employer retains the discretion to assess and evaluate whether to reinstate the acquitted employee.

Appraisal of Appellant's Evidence and Key Admissions In His Cross-Examination

1. The Impugned Judgment highlights the following salient points:

i) Appellant claimed that Respondent No.1 illegally withdrew amounts aggregating to Rs.785,000/- through ATM card from Appellant's UBL account. However, Appellant admitted that he did not produce any bank statement to establish the presence of Rs.785,000/- in his account.

ii) Appellant admitted that Respondent No.1 had a permanent employment visa of Dubai.

iii) Appellant conceded to receiving Rs.44,000/- from Respondent No.1 and Rs.450,000/- from UBL via cheque. This restitution was confirmed through a signed affidavit and accepted as a full and final settlement of Appellant's claim. Despite this, Appellant proceeded to file the criminal case against Respondent No.1.

iv) The Acquittal Judgment (in its paragraph 13) concludes that:

(a) While the Complainant (Appellant) alleged that he identified Respondent No.1 from the Closed-Circuit Television (CCTV) show to him, no such footage capturing Respondent No.1's withdrawal from ATM was produced before the Special Court.

(b) No substantial evidence has been presented against the accused to link him to the commission of the offence, apart from the mere words of the Complainant.

Significantly, the Acquittal Judgment was not challenged by Appellant before any forum and it, thus, attained finality.

2025 M L D 99

[Sindh]

Before Yousuf Ali Sayeed and Arbab Ali Hakro, JJ

Abdul Hakeem Baloch---Petitioner

Versus

Election Commission of Pakistan and others---Respondents

C.P. No. D-2873 of 2024, heard on 24th September, 2024.

Elections Act (XXXIII of 2017)---

----S. 139---Election Rules, 2017, Rr. 86, 87 & 90---Recounting of ballot papers---Principle---Petitioner / returned candidate was aggrieved of order passed by Election Tribunal directing recount of ballot papers---Plea of respondent / candidate was that difference in number of votes shown to have casted in favour of petitioner / returned candidate as in consolidated result of poll fell within the threshold for recount contemplated under Elections Act, 2017---Validity---Plea of respondent/ candidate was well founded and there was no waiver on the part of respondent / candidate in that regard---High Court declined to interfere in order of recounting passed by Election Commission---Constitutional petition was dismissed, in circumstances.

Shaukat Aziz Siddiqui v. Federation of Pakistan, Secretary Ministry of Law and Justice and another PLD 2024 SC 746, and Justice Qazi Faez Isa and others v. The President of Pakistan and others PLD 2021 SC 1 ref.

Ali Gohar Khan Mahar v. Election Commission of Pakistan through Secretary and 2 others 2014 CLC 776; Civil Petitions No.1573, 1673, 1729, 1767 and 2433 of 2024 and Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others 2015 SCMR 233 rel.

Khawaja Shamsul Islam for the Petitioner.

Ali Tahir and Mohammad Hashim Sairani for the Respondent No. 4.

Kafeel Ahmed Abbasi, Addl. A.G.

Abdullah Hanjrah, Deputy Director (Law) and Sarmad Sarwar, Assistant Director (Law), ECP.

Kazi Abdul Hameed Siddiqui, D.A.G.

Date of hearing: 24th September, 2024.

Order

Yousuf Ali Sayeed, J.---The Petitioner, being the returned candidate from NA 231-Malir Karachi (the "Constituency"), has invoked the jurisdiction of this Court under Article 199 of the Constitution, seeking to impugn the Order made by an Election Tribunal (the "Tribunal") on 31.05.2024 in Election Petition No.07 of 2024 instituted by the Respondent No.4 under Section 139 of the Election Act, 2017 (the "Act") in the matter of the general election held on 08.02.2024, whereby CMA No. 1030 of 2024 (the "Application") filed by that Respondent was allowed so as to direct the Provincial Election Commissioner Sindh to nominate an officer of the Election Commission of Pakistan (the "ECP"), not being the officer who acted as the Returning Officer (the "RO") of the Constituency, to examine and recount all ballot papers polled at four specified polling stations in accordance with the procedure set out in Rules, 86, 87 and 90 of the Election Rules, 2017 (the "Rules"), subject to certain directions, and with the result of the recount and reconsolidation to be submitted to the Registrar of the Tribunal within three weeks under cover of a report, whereafter any candidate desiring to file objections thereto was left at liberty do so within 7 days.

1. Proceeding with his submissions learned counsel appearing on behalf of the Petitioner, contended that the impugned Order was bad in law as it had been made without adhering to the principle of natural justice enshrined in the maxim audi alteram partem, in as much as it was argued that the Petitioner had not been afforded a proper opportunity of hearing prior to the decision of the underlying application. In that regard, he submitted that the Application had not been filed along with the Election Petition at the outset, but had been preferred subsequently and came to allowed through the impugned Order without the Petitioner being properly put on notice thereof or provided a copy or any opportunity to file his reply/objections. He placed reliance in that regard on the judgments of the Supreme Court in the cases reported as Shaukat Aziz Siddiqui v. Federation of Pakistan, Secretary Ministry of Law and Justice and another PLD 2024 Supreme Court 746, and Justice Qazi Faez Isa and others v. The President of Pakistan and others PLD 2021 Supreme Court 1.

2. Learned counsel also argued that the Application was even otherwise not maintainable and had been wrongly entertained, as Rule 139(7) has been misconstrued in the impugned Order to be a provision enabling the Tribunal to order a recount but was is actually a barring provision which clearly mandated that if the election petitioner had failed to seek a recount of votes before consolidation, then such application for recount of votes could not be entertained. It was submitted that an application dated 09.02.2024 had been submitted by the Respondent No 4 before the Provincial Election Commissioner and not the R.O, which was the mandatory requirement under the law, and had also been submitted after the process of consolidation had been completed, hence, was dismissed as not maintainable. It was submitted that under such circumstances the Tribunal had erroneously exercised a power that was not vested in it.

3. Additionally, it was contended that the right to seek a recount had even otherwise been waived by the Respondent No.4 while filing Constitutional Petition No.733/2024 before this Court prior to the Election Petition so as to challenge an order of the RO dated 10.02.2024 whereby an application for recount had been dismissed, in as much as it had been stated in the Memo. presented in the Constitutional Petition that the counting of votes was not being impugned at that stage. He prayed that the matter ought to be remanded for decision afresh by the Tribunal after granting an opportunity of hearing and filing of a reply/objections.

4. Conversely, learned counsel appearing on behalf of the Respondent No.4 argued that the impugned Order did not infringe any right so as to give rise to any cause for invoking Article 199 Petition and was even otherwise not maintainable. He placed reliance upon Section 155 of the Act while pointing out that it was analogous to Section 67(3) of the Representation of the People Act, 1976 while citing the judgment of a larger Bench of this Court in the context of the erstwhile statute in the matter reported as Ali Gohar Khan Mahar v. Election Commission of Pakistan through Secretary and 2 others 2014 CLC 776, as well as the majority judgment of the Supreme Court in Civil Petitions Nos.1573, 1673, 1729, 1767 and 2433 of 2024.

5. He submitted that the difference in the number of votes shown to have been cast in favour of the Petitioner as compared to the Respondent No. 4 in the consolidated result of the poll from the Constituency fell within the threshold for recount contemplated under Act, with the plea for recount thus being well founded and there being no waiver on the part of said Respondent in that regard even it were assumed for the sake of argument that the right to avail that statutory remedy admitted to such a measure. It was pointed out that it had even otherwise been stated for purpose of the pleadings in Constitutional Petition No.733/2024 that the count may be impugned later on, and the Order whereby the matter had been disposed of by this Court itself envisaged such recourse through the Tribunal.

6. For his part, while adopting the arguments advanced by learned counsel for the Respondent No.4, the learned DAG placed further reliance on the judgment of the Supreme Court in the matter reported as Muhammad Raza Hayat Hiraj and others v. The Election Commission of Pakistan and others 2015 SCMR 233.

7. Having heard the arguments advanced and examined the relevant statutory provisions in light of the case law cited in the matter, it merits consideration that while the judgments cited on behalf of the Petitioner regarding the principle of natural justice and the right to a fair trial have their own place, more relevantly from the standpoint of the controversy at hand it was held in the case of Ali Gohar Khan Mahar (Supra) that

"25. Having considered the decisions of the Supreme Court as above, in our respectful view, the controlling authorities for present purposes are Javaid Hashmi, Ghulam Mustafa Jatoi and Muhammad Nawaz Sharif. As noted, the last two decisions were of 5-Member Benches. In both, the general rule laid down in Javaid Hashmi was affirmed. In our respectful view, that general rule must be regarded as applicable to all disputes relating to or arising out of the election process or after that process has been completed. What has been stated in Ghulam Mustafa Jatoi ought to be regarded as an exception to the general rule, and what is stated in Muhammad Nawaz Sharif ought to be regarded as a restatement of the exception. It will be recalled (see para 13 above) that in Javaid Hashmi the Supreme Court expressly observed that the High Court could not in the exercise of its jurisdiction under Article 199 "question the correctness of the decision of the Election Tribunal on any ground whatsoever upon an election petition filed to question the validity of the election" (see Javaid Hashmi at pg. 423). Quite obviously, "the decision" being referred to includes an interlocutory order of the Election Tribunal. The general rule thus clearly encompasses the matter before us, which is challenge to two interlocutory orders of the Tribunal. The only question therefore is whether, and if so to what extent, the matter comes within the scope of the exception? We have carefully considered the point. As restated in Muhammad Nawaz Sharif, for the exception to apply the order must be "patently illegal" and there should be no remedy available in law "either before or after the election process". Now, in respect of an election petition presented under section 52, there is a remedy available by way of a direct appeal to the Supreme Court under section 67(3). In Javaid Hashmi, the majority dilated at some length upon this aspect and, in our respectful view the existence of this statutory right of appeal is central to the reasoning that led the Court to lay down the general rule. The general rule is comprehensive. The exception on the other hand has been stated in narrow terms. The threshold is high: mere illegality will not do; the impugned order must be "patently" illegal. In our respectful view, if an interlocutory order of an Election Tribunal trying an election petition presented under section 52 is patently illegal, that will almost certainly furnish a ground for an appeal to the Supreme Court under section 67(3). In other words, in the present context, there will hardly ever be a situation where the remedy by way of statutory appeal will not be available and applicable. Put differently, one of the key elements for the exception to apply will not be found to exist. There will be a remedy available under law. That this remedy is not immediately available, but must await the "final" decision of the Election Tribunal is not determinative. In our respectful view, the manner in which the exception has been formulated, especially as restated in Muhammad Nawaz Sharif, precludes any such conclusion. It necessarily follows that a petition under Article 199 will not be maintainable against an interlocutory order of an Election Tribunal trying an election petition, even if such order is patently illegal. The aggrieved party will have its remedy by way of the statutory appeal under section 67, and must seek that remedy at the appropriate stage.

1. We are mindful of the fact that the foregoing conclusion may mean that an interlocutory order of an Election Tribunal must be allowed to stand and take effect, no matter how perverse or illegal it may be. That was perhaps the apprehension expressed by Nasim Hasan Shah, J. in his dissenting judgment in Javaid Hashmi. In our respectful view, the forceful and comprehensive manner in which the majority judgment stated the general rule, the repeated affirmation of that rule in subsequent Supreme Court decisions (given by larger Benches), and the care taken to narrowly circumscribe the exception carved from the general rule make clear that notwithstanding this concern and apprehension, the matter must be left for the Supreme Court itself to decide in any appeal to be preferred under section 67(3). If at all the position is otherwise, i.e., the exception is to cover a patently illegal interlocutory order of an Election Tribunal trying an election petition notwithstanding the existence of the statutory right of appeal, that is something for which guidance can only come from, and be given by, the Supreme Court itself."

2. That judgment was affirmed by the Supreme Court in the case of Muhammad Raza Hayat Hiraj (Supra), as follows:

"…the interlocutory orders passed by the Election Tribunal impugned before the High Court were not liable to be set aside in its Constitutional jurisdiction as the petitioners before the Court had a remedy available to them by way of appeal under section 67 of the Act after disposal of the election petitions. The impugned judgment of the Lahore High Court dated 28-2-2014, therefore, is maintained and similar opinion of the High Court of Sindh in Ali Gohar Khan Mahar's case (supra) and of the High Court of Balochistan in Dur Muhammad Khan Nasar's case (supra) is affirmed."

2025 M L D 128

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

Muhammad Yousif Jatoi---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-156 of 2024, decided on 29th March, 2024.

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

----S. 497 (2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotic substance---Bail, grant of---Further inquiry---Allegedly 3000 grams charas was recovered from possession of the accused-petitioner---Record showed that the police recovered charas from the possession of the petitioner when he was on the road which was a public thoroughfare, yet no independent person had been cited as witness or mashir in the case---No doubt, the evidence of the Police Officials is as good as other witnesses, but when the whole case rests upon sole evidence of Police Officials, their evidence requires deep scrutiny at trial---Besides, the stance/defence plea taken by the applicant that he was arrested by police during raid at his home one day prior to registration of instant FIR had got some force in view of the documentary proof i.e. memo. of an application dated 09.01.2024 filed by mother of applicant, under Ss.22-A & 22-B, Cr.P.C.---Furthermore, according to Amendment of 2022 in Control of Narcotic Substances Act, 1997, the punishment provided for possessing 1000-grams to 4999-grams of chars had been extended to fourteen years and not less than nine years along with fine---Courts had to consider minimum/lesser quantum of sentence, particularly at bail stage---Bail was not to be withheld as a punishment as there was no legal or moral compulsion to keep people in jail merely on the allegation that they had committed offences punishable with death or transportation for life, unless reasonable grounds appeared to exist to disclose their involvement---Ultimate conviction and imprisonment of a guilty person could repair the wrong caused by a mistaken relief of bail granted to him, but no satisfactory reparation could be offered to an innocent man for his unjustified confinement in case of his acquittal in the long run---More-so, since all the prosecution witnesses in the case were Police Officials, therefore, there was no apprehension of tampering with the evidence on the part of petitioner if he was released on bail---Applicant also appeared to be first offender, as there was no such material on record that he was already challaned and/or convicted in any other case of similar nature---Besides, applicant had been in jail for more than three months; the investigation of the case had been finalized, and physical custody of the petitioner was no more required by police for the purpose of investigation---Bail application was allowed, in circumstances.

Zahid Sarfraz Gill v. The State 2024 SCMR 934 ref.

Zahid Sarfraz Gill v. The State 2024 SCMR 934 rel.

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

----S. 497---Bail order---Observations of Court---Scope---Observations made in the bail order are tentative in nature, which should not prejudice the case of either party in the trial.

Kazi Manzoor Ahmed for Applicant

Aitbar Ali Bullo, Deputy Prosecutor General for the State.

Date of hearing: 29th March, 2024.

Order

Muhammad Saleem Jessar, J.---Applicant Muhammad Yousif Jatoi son of Faqir Baloch, who has been booked in FIR No. 06 of 2024, registered at P.S Aligoharabad, Larkana, for offense punishable under Section 9(3)(c) of the Control of Narcotic Substances Act, 1997, for possessing 3000 grams of Charas; seeks his admission to post arrest bail, after his failure to get same relief from learned trial Court.

1. Learned counsel for the applicant has mainly contended that applicant/ accused is innocent and has falsely been implicated in this case by the police. He has further contended that, no any recovery of charas has been affected from applicant, but in-fact a day before registration of instant FIR the Dokri police raided house of applicant; caused injuries to womenfolk of applicant and ultimately the applicant along with other accused were arrested by police; they wrongfully detained in the police station, as such a lady relative of applicant, namely, Mst. Nooran Khatoon and other lady namely, Mst. Siyani Khatoon filed separate applications under Sections 22-A and B, Cr.P.C [vide Crl. Misc. Appln. Nos. 73 and 74 of 2024] before learned Sessions Judge, Larkana, for such highhandedness on the part of police on the same day i.e. 09.01.2024, and on coming to know this fact the Dokri police in order to cover up their illegal actions handed over custody of the applicant and other accused to Larkana police, who booked them in FIR by foisting huge quantity of Charas upon them on following day i.e. 10.01.2024. Per learned counsel two police officials are shown as mashirs, though the alleged incident is said to have taken place at very busy place; therefore, their evidence cannot be safely relied upon. Learned counsel further contended that, the challan against the applicant has already been submitted, therefore, he is no more required by police for investigation or interrogation and his further detention in jail would not serve any purpose, therefore, he prayed for grant of bail to the applicant. In support of his contentions, learned counsel relied upon unreported Order [2024 SCMR 934] passed by Hon'ble Supreme Court in case of Zahid Sarfraz Gill v. The State.

2. Conversely learned D.P.G appearing for the State has opposed grant of bail to the applicant on the ground that the applicant was caught by the police party along with a huge quantity of contraband material and he has been nominated in the promptly lodged FIR, and that the offence falls within prohibitory clause of Section 497, Cr.P.C.

3. It is alleged that the police recovered charas from possession of the applicant when he was on the road which was public thorough fair, yet no any independent person has been cited as witness or mashir in the case. No doubt, the evidence of the police officials is as good, as other witnesses, but when the whole case rests upon sole evidence of police officials, their evidence requires deep scrutiny at trial.

4. The Hon'ble Supreme Court in case of Zahid Sarfraz Gill v. The State [2024 SCMR 934], while dealing with similar question of non-association of independent person/ witnesses, observed that "We are aware that section 25 of the Act excludes the applicability of section 103 of the Code of Criminal Procedure, 1898 which requires two or more respectable inhabitants of the locality to be associated when search is made. However, we fail to understand why the police and members of the Anti-narcotic Force (ANF) do not record or photograph when search / seizure and / or arrest is made. Article 164 of the Qanun-e-Shahadat, 1984 specifically permits the use of any evidence that may have become available because of modern devices or techniques, and its Article 165 overrides all other laws. In narcotic cases the prosecution witnesses usually are ANF personnel or policemen who surely would have a cell phone with an in-built camera. In respect of those arrested with narcotic substances generally there are only a few witnesses, and most, if not all, are government servants. However, trials are unnecessarily delayed, and resultantly the accused seek bail first in the trial court which if not granted to them is then filed in the High Court and there too if it is declined, petitions seeking bail are then filed in this Court. If the police and ANF were to use their mobile phone cameras to record and / or take photographs of the search, seizure and arrest. It would be useful evidence to establish the presence of the accused at the crime scene, the prosecution by the accused of the narcotic substances, the search and its seizure it may also prevent false allegations being levelled against ANF/ police that the narcotic substance was foisted upon them for some ulterior motives."

5. Besides, the stance/ defence plea taken by the applicant's counsel that applicant was arrested by Dokri police during raid at his home one day prior to registration of instant FIR, has got some force in view of the documentary proof i.e. memo. of an application dated 09.01.2024 filed by mother of applicant, namely, Siyani Khatoon under Sections 22-A and 22-B, Cr.P.C.

6. Furthermore, according to Amendment of 2022 in Control of Narcotic Substances Act, 1997, the punishment provided for possessing 1000-grams to 4999-grams of Charas is extended to fourteen years and not less than nine years along with fine. And, as per settled principles of law, the Courts have to consider minimum/ lesser quantum of sentence, particularly at bail stage.

2025 M L D 156

[Sindh]

Before Muhammad Junaid Ghaffar and Jawad Akbar Sarwana, JJ

Metro Pakistan (Private) Limited through constituted representative---Petitioner

Versus

Province of Sindh through Senior Member, Board of Revenue and another---Respondents

Constitution Petition No. D-2496 of 2022, decided on 8th May, 2024.

Stamp Act (II of 1899)----

----S. 40-A (2)---Constitution of Pakistan, Art. 199--- Constitutional petition--- Factual controversy--- Show cause notice, assailing of--- Imposing of stamp duty--- Petitioner / company assailed show cause notice imposing stamp duty on the plea that the documents were Tenancy agreements and not Lease deeds--- Validity--- Mere issuance of a notice did not give rise to a cause of action to challenge the same by invoking Constitutional jurisdiction of High Court to seek declaration that documents in question were mere Tenancy Agreements and not Lease Deeds---High Court in exercise of Constitutional jurisdiction declined to give such declaration as it required a factual determination including leading of evidence--- Notice assailed was not by itself an adverse order and could be responded by petitioner / company through reply--- Constitutional petition was dismissed, in circumstances.

Altamash Arab for the Petitioner.

Zeeshan Adhi, Additional Advocate General.

Order

Muhammad Junaid Ghaffar, J.---Through this petition, the Petitioner has sought the following relief(s):-

A. DECLARE

(i) That the documents annexed as Annexure B/1 to Annexure B/3 are Tenancy Agreements and not Lease Deeds.

(ii) That the Respondents have no jurisdiction as to determine whether the documents annexed as Annexure B/1 to Annexure B/3 are Tenancy Agreements and not Lease Deeds as the Tenancy Agreements were executed outside of Pakistan.

(iii) That the Notice dated 07.04.2022 has been issued without jurisdiction and lawful authority and is unconstitutional and of no legal effect therefore, liable to be set aside;

B. RESTRAIN

(i) The respondents from taking any coercive action as against the Petitioner.

C. GRANT

(i) Costs

2025 M L D 165

[Sindh (Larkana Bench)]

Before Khadim Hussain Soomro, J

Badar-ud-Din and another---Applicants

Versus

Senior Superintendent of Police, Shikarpur and 3 others---Respondents

Cr. Misc. Application No. S-287 of 2024, decided on 19th September, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A & 561-A---Powers of Justice of Peace under S.22-A, Cr.P.C.---Scope---Petition filed under S.22-A, Cr.P.C, by the respondent for the registration of criminal case was accepted by the Ex-officio Justice of Peace---Validity---Contents of the application demonstrated that the Police Officials took away uncle of the complainant from an ice stall in the presence of witnesses on the charges that he was facilitator of some criminals---As a result, the accused discharged two firearm shots; one struck left knee, while the second shot impacted left thigh of injured---Conclusive medical certificate issued by the Medical Legal Officer confirmed the injuries, which constituted a cognizable offence---Private respondents had not denied the injuries sustained by the injured, but their counsel submitted that due to a police encounter, the injured passer-by had suffered injuries---Police had registered the FIR and the direction for the registration of a second FIR was not permissible under the law---First Information Report was examined, in which the place of incident and time of occurrence were completely different from the time and place of the incident shown by the present applicant in the memo. of application under S.22 a-6(1), Cr.P.C.---Therefore, it could be safely said that two separate incidents required separate registration of FIR to let the investigation come into motion---Under S.22-A, Cr.P.C., it was not the duty of the Justice of Peace to meticulously examine or make determinations on the merits of the case---Instead, the Justice of Peace was required to ascertain whether the facts presented in the application established a cognizable offence---If a cognizable offence was found, the Justice of Peace was authorized to direct that the complainant's statement be recorded pursuant to S.154, Cr.P.C.---Such powers were confined to facilitating and supporting the administration of the criminal justice system---Detailed examination of the case and conducting a fact-finding investigation were not part of the functions of a Justice of Peace---Rather, the Justice of Peace was tasked with addressing the grievance of a complainant who had been aggrieved by a Police Officer's refusal to register his report---Application was accordingly dismissed.

Sughra Bibi v. The State PLD 2018 SC 595; Muhammad Bashir v. Station House Officer, Okara Cantt. PLD 2007 SC 539 and Syed Qamber Ali Shah v. Province of Sindh and others 2024 SCMR 1123 rel.

Abdul Rahman A. Bhutto for Applicants.

Ali Anwar Kandhro, Additional Prosecutor General, Sindh along with Dr. Arshad Ahmed, Medical Officer, Rural Health Centre, Khanpur and S.I.P. Imamuddin, S.H.O. P.S. Khanpur, District Shikarpur for Official Respondents.

Amanullah Luhur for Respondent No. 3.

Date of hearing: 19th September, 2024.

Order

Khadim Hussain Soomro, J.---Through this Criminal Miscellaneous Application, the applicant hascalled in question Order dated 17.08.2024, handed down by learned Additional Sessions Judge-IV, Shikarpur in Criminal Miscellaneous Application No.1040/2024 (Re-Fazal Rehman v. S.S.P. Shikapur and others), wherein the application under section 22-A, Cr.P.C filed by respondent No.3 was allowed and being aggrieved and dissatisfied, the same has been impugned before this court.

1. The facts in brief as per the application are that on 02.08.2024 at about 07:00 p.m., proposed accused Ayaz Ahmed Khero caused firearm injury to Abdul Hafeez on his left thigh, proposed accused Badaruddin Bhutto fired on the right thigh of Abdul Hafeez, thereafter they wanted to take him in injured condition, but on the intervention of local people, they left the Abdul Hafeez at the spot in injured condition; subsequently, after observing legal formalities, the injured was shifted to the hospital for medical treatment and the complainant after getting the treatment of injured appeared at the Police Station for registration of FIR. However the FIR was not registered despite the complainant's efforts, including approaching the S.S.P. office, which also yielded no response. Consequently, an application was filed under Section 22-A of the Cr.P.C. before the trial court, which was allowed. Hence, the present applicants have impugned this order before this court.

2. Learned counsel for the applicants contends that the impugned order is bad in the eyes of the law and passed without considering the merits of the case; that on the day of the incident, A.S.I. Muhammad Mustaqeem Baloch lodged an FIR bearing Crime No.64/2024 at Police Station Khanpur against some dacoits, and they found Muhammad Hafeez in injured condition and shifted him to the hospital; that infact the injured had sustained injuries in an encounter with the dacoits; that on the day of incident proposed accused were not available at the scene of offence; that the relatives of the private respondent are criminals and there are many FIRs lodged against them, therefore, they want to drag the police officials to seek some relief. Hence, an instant Criminal Miscellaneous Application may be allowed, and the impugned order passed by the learned trial Court may be set aside.

3. Learned counsel for respondent No.3, as well as learned Additional Prosecutor General, Sindh, have supported the impugned order and submitted that it is a matter of investigation wherein an injured old person has sustained two injuries at the hands of the police, resulting amputation of his left leg; therefore, this Criminal Miscellaneous Application may be dismissed.

4. Heard learned counsel for the applicants, learned counsel for respondent No.3, and learned Additional Prosecutor General Sindh and the Medical Officer, who issued the Final Medico-legal Certificate and perused the material available on record with their assistance.

5. The contents of the application demonstrate that the private respondents, who are police officials, took away his uncle, Abdul Hafiz, from an Ice Stall in the presence of witnesses, namely, Abdul Hafeez, Manzoor and Muhammad Raheem on the charges that he is a facilitator of criminals. As a result, the accused discharged two firearm shots; one struck his left knee, while the second shot impacted his left thigh. The conclusive medical certificate issued by the Medical Legal Officer confirms the aforementioned injuries, categorizing them as Ghyr Jaifah Damiyah and Itlaf-i-Salahiyat-Udw, which constitute a cognizable offence.

6. The private respondents have not denied the injuries sustained by the injured, but their counsel submits that due to a police encounter, the injured passer bye has suffered injuries. The police have registered such FIR as Crime No. 64 of 2024, and the direction for the registration of a second FIR. is not permissible under the law, in the case of Sughra Bibi v. The State (PLD 2018 Supreme Court 595), in para No.27, the honourable apex court of Pakistan has observed that if there are various versions of the same incident, it is to be brought to the notice of the investigation officer by way of recording 161, Cr.P.C Statement. I have examined the FIR being Crime No.64 of 2024, in which the place of incident and time of occurrence are completely different from the time and place of the incident shown by the present applicant in the memo. of an application under section 22-a6(1), Cr.P.C. Therefore, it can be safely said that two separate incidents require separate registration of FIR to let the investigation come into motion.

2025 M L D 189

[Sindh (Hyderabad Bench)]

Before Yousuf Ali Sayeed, J

Abdul Hameed and others---Applicants

Versus

Waqar Hussain Shah and 13 others---Respondents

Civil Revision Application No. 78 of 2015, decided on 31st May, 2024.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54--- Civil Procedure Code (V of 1908), S. 115--- Suit for declaration and injunction--- Revisional jurisdiction--- Concurrent findings of facts by two Courts below--- Effect--- Respondents / plaintiffs claimed to be owners in possession of suit land on the basis of inheritance--- Trial Court decreed the suit in favour of respondents / plaintiffs and appeal filed by petitioners / defendants was dismissed by Lower Appellate Court, as they could not establish authenticity and legality of sale deeds in their favour---Validity---Petitioners / defendants were unable to demonstrate any misreading/non-reading of evidence or perversity in findings of fora below falling within the scope of S.115, C.P.C.--- High Court declined to interfere in judgments passed by two Courts below as view taken through concurrent findings was reasonable and sustainable on the basis of evidence on record--- Revision was dismissed, in circumstances.

Sardar Muhammad Kamal-ud-Din Khan v. Syed Munir Syed and others 2022 SCMR 806 rel.

Sunder Das for Applicants.

Abdul Ghafoor Hakro for Respondents Nos. 1 to 8.

Allah Bachayo Soomro, A.A.G. for Respondents Nos. 9 to 14.

Dates of hearing: 6th and 14th May, 2024.

Judgment

Yousuf Ali Sayeed, J.---The captioned Revision assails the concurrent findings of the fora below, commencing with the Judgment and Decree dated 14.12.2010 of the learned Senior Civil Judge Tando Muhammad Khan in F.C Suit No.72 of 2008 instituted by the Respondents Nos. 1 to 8 and culminating in the Judgment and Decree of the Additional District Judge, Tando Muhammad Khan, dated 21.01.2015, dismissing Civil Appeal No.21 of 2011 preferred by the Applicant.

1. The backdrop to the matter is that the Respondents Nos. 1 to 8 had filed the Suit for declaration and permanent injunction against the Appellants, claiming ownership and possession of certain lands on the basis that the same had been owned by their father, Yar Muhammad Shah, who had remained the owner and in possession thereof until his death on 17.03.2002, whereupon they had inherited the same as his legal heirs with the foti khata badal entry being made in their favour, whereas an Appeal was later filed by the Appellants under Section 161 of the Sindh Land Revenue Act, 1967, claiming that the lands had been purchased by them from Yar Muhammad Shah through sale deeds purportedly executed on 15.09.1998 but registered on 18.12.2004. The Suit was thus brought by the Respondents Nos. 1 to 8, eliciting a declaration of their ownership as well as the invalidity of the sale deeds and to restrain the Appellants from interfering with their possession.

2. While the Suit proceeded ex parte as against the official Respondents, the Appellants contested the matter and took the plea through their joint written statement that the registration of the sale deeds was held in abeyance as Yar Muhammad Shah had obtained a loan against the lands from the Agricultural Development Bank of Pakistan, with the loan clearance certificate being issued and received in December 2004 and the registration of the sale deeds following shortly thereafter.

3. The trial Court examined the evidence presented by both parties and observed that the Appellant's claim regarding the loan obtained by Yar Muhammad Shah was not supported by evidence as the clearance certificate produced in the matter showed that Yar Muhammad Shah had obtained a loan against the suit lands on 26.03.1999, which was after the alleged execution of the sale deeds on September 15.09.1998, hence the discrepancy raised doubts about the Appellants claim as to the reason for registration of the sale deeds being held in abeyance at the time.

4. The Court considered this discrepancy to be crucial and concluded that the Appellants could not establish the authenticity and legality of the sale deeds. Therefore, while the Respondents Nos. 1 to 8 were held to have proved their ownership and possession of the suit lands, the sale deeds presented by the Appellants were found and declared to be illegal, forged, and manipulated documents.

5. In terms of the underlying Judgment of the trial Court, the Respondents Nos. 1 to 8 were thus declared to be the legal owners and in possession of the suit lands, and the Appellants were ordered not to interfere with their possession. The relevant excerpt from the judgment of the trial Court on that score reads as follows:

"The clearance certificate available with Ex: 65/C show that Syed Yar Muhammad Shah obtained loan on suit lands vide loan case No. 138243 dated 26.03.1999 but defendants deposed that on 15.09.1998 the registration of suit sale deeds were deferred as no clearance certificate was available from Bank. This show that on 15.09.1998 the lands of Syed Yar Muhammad Shah were not under any Bank Loan as the Bank Clearance Certificates show that he obtained loan on 26.03.1999. Therefore the evidence of defendants is falsified by the Bank clearance certificate that on 15.09.1998 Bank clearance certificate was not available hence registration was deferred. But in fact the loan was not obtained in year, 1998 and the sale deeds could be registered. Therefore this show that the sale deeds were not actually presented on 15.09.1998 before Sub-Registrar for registration and the same were not deferred for want of Bank clearance certificate. If the registration of suit sale deeds was deferred due to correction of sale certificate then why these suit sale deeds were registered after Six years of presentation on same sale certificate. The sale deeds show that the same were registered on old and same sale certificate. This all creates doubts in the genuineness of the suit sale deeds. In these circumstances it is also quite unnatural that when Yar Muhammad Shah executed sale deeds on 15.9.1998 then why he obtained loan subsequently on the same suit lands. It means that he did not appear and presented or executed the suit sale deeds on 15.9.1998 before Sub-Registrar or Stamp Vendor. Moreover the defendants also failed to examine the Stamp vendor or the then Sub-Registrar before whom Syed Yar Muhammad Shah appeared and executed the suit sale deeds.

In support of the execution of suit sale deeds the defendants only examined their brother Abdul Wahid Shah who was one of attesting witnesses in all suit sale deeds. This witness has deposed that one day before execution of sale deeds he was asked by his brother Yar Muhammad Shah to come at office of Stamp vendor Umar Abro. On next day he reached office of Stamp vendor where Yar Muhammad Shah along with other attesting witness Abbas Chhelgari came in Taxi Car. He further deposed that he was asked by Yar Muhammad Shah to sign sale deeds executed by him in favour of defendants Nos.1 to 5. Regarding sale consideration though he deposed that same was paid to Yar Muhammad Shah but he did not depose that the same was paid in his presence. He further deposed that after signing the sale deeds, he went away, as parties went to office of Sub-Registrar. It means this attesting witness did not appear before Sub-Registrar, when Yar Muhammad Shah signed registers before Sub-Registrar. The other attesting witness has not been produced by defendants with explanation that he is under influence of plaintiff as per statement of their advocate as Ex: 60. During cross-examination defendant Abdullah Shah admitted that the attesting witness Abbas Chhelgari is brother of his wife. Therefore in view of this admission the statement of defendants that attesting witness Abbas Chhelgari is under influence of plaintiff is surprising. The defendants who are beneficiary of sale deeds also failed to examine Stamp vendor in this suit who had scribed the sale deeds."

1. Furthermore, in the Appellate Judgment it was also observed that while the Appellants claimed that they had paid the sale consideration for the lands to Yar Muhammad Shah, and that the relevant payments were made to him separately by each Appellant in a room adjacent to the office of the stamp vendor and were witnessed by Abbas Ali Chelghari and Abdul Wahid Shah, during the cross-examination of the attesting witness Abdul Wahid Shah, it was revealed that he could not provide specific details of the respective payments made by each Appellant to Yar Muhammad Shah, but mentioned that the payments were made in the presence of the stamp vendor.

2. In the matter reported as Sardar Muhammad Kamal-ud-Din-Khan v. Syed Munir Syed and others 2022 SCMR 806, the Supreme Court explained the scope of jurisdiction under Section 115, C.P.C. as follows:

2025 M L D 201

[Sindh]

Before Adnan-ul-Karim Memon, J

Kulsoom and another---Petitioners

Versus

Province of Sindh through Home Secretary, Sindh and others---Respondents

Constitutional Petition No. S-804 of 2024, decided on 26th July, 2024.

Constitution of Pakistan---

----Arts.4, 9, 10, 10-A, 24, 35 & 199---Marriage out of free consent---Sui juris lady---Harassment by police in matrimonial affairs---Allegation of contracting second marriage in presence of first marriage---Registration of criminal case---Highhandedness of police officials in league with private persons---Main objectives of police is to apprehend offenders, investigate crimes and prosecute them before the Courts and also to prevent the commission of crime, and above all ensure the law and order to protect citizen's life and property---Law enjoins the police to be scrupulously fair to the offender and the Magistracy is to ensure a fair investigation and fair trial for an offender, but unfortunately, these objectives have remained unfulfilled---Aberrations of police officers and police excesses in dealing with the law and order situation have been the subject of adverse comments from the Courts but they have failed to have any corrective effect---In the present case Station House Officer (SHO) concerned ensured that he would conduct a fair and impartial investigation of the criminal case and would submit a report to the concerned Magistrate for appropriate order---Private persons had also furnished their personal bond to High Court that no action shall be taken on their part---High Court disposed of the petition, in circumstances.

Ms. Roop Mala Singh for the Petitioners.

Mujeeb-ur-Rahman for Respondent along with private respondents.

Ms. Amina Ansari APG along with Aurangzaib SHO of PS Sachal.

Date of hearing: 26th July, 2024.

Order

Adnan-ul-Karim Memon, J.---This Court vide order dated 02.07.2024 passed the following orders:

"Per learned counsel, the petitioners Mst. Kulsoom and Hussain Dino have contracted marriage out of their own freewill and choice, however, on account of the ill will of the parents of petitioner No.1 she has been harassed and there is likelihood that they may lodge FIR against the couple, who are living happily. Affidavit of freewill and Nikahnama have been placed on record. -

Let notice be issued to the respondents as well as to learned Advocate General Sindh and to learned Prosecutor General Sindh for 22.7.2024 with directions to appear and assist this Court. Meanwhile, the petitioners shall not be harassed by the private respondents. The SHO as well as SSP concerned are directed to ensure that no harassment shall be caused to the petitioners."

1. The grievance of the petitioners is that private respondents in connivance with the local Police are harassing them and interfering in their matrimonial affairs, without lawful justification, hence they have filed the instant constitutional petition against the highhandedness of official respondents who are in league with private respondents claiming that there is marriage over marriage issue. This point cannot be decided in writ jurisdiction, it is for the competent forum to decide the subject issue if approached by the parties.

2. Admittedly, this is a case of harassment at the hands of police in connivance with private respondents. The meaning of the word "harass". has been explained as "Injure and injury"; these words have numerous and comprehensive popular meanings, as well as having a legal import. A line may be drawn between these words and the word "harass" excluding the latter from being comprehended within the word "injure" or "injury". The synonyms of "harass" are: Weary, tire, perplex, distress tease, vex, molest, trouble, and disturb. They all have relation to mental annoyance." In the Qxford Dictionary of New Words, the meaning of the word "harassment" has been explained, which reads as "The subjection of a person to aggressive pressure or intimidation. "Harassment" should he interpreted as potentially producing some unreasonably adverse impact on the victim. The conduct should produce more than "worry", "trouble", "discomfort", or "unease" unless perhaps these are experienced to an extreme degree."

3. The main objectives of police is to apprehend offenders, investigate crimes, and prosecute them before the courts also to prevent the commission of crime, and above all ensure law and order to protect citizens' life and property. The law enjoins the police to be scrupulously fair to the offender and the Magistracy is to ensure a fair investigation and fair trial for an offender. Unfortunately, these objectives have remained unfulfilled. Aberrations of police officers and police excesses in dealing with the law and order situation have been the subject of adverse comments from this Court as well as from other courts but they have failed to have any corrective effect on it.

2025 M L D 238

[Sindh (Mirpurkhas Bench)]

Before Muhammad Saleem Jessar, J

Muhammad Saleem---Appellant

Versus

Meraj-ud-Din---Respondent

Criminal Appeals Nos. S-68 of 2024 (new) and S-145 of 2022 (old), decided on 27th June, 2024.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 8---Criminal Procedure Code (V of 1898), S. 345---Illegal dispossession---Restoration of possession---Appreciation of evidence---Compounding of offence---Scope---Accused was charged for dispossessing the complainant on show of force from his land and also made aerial firing---No doubt the legislature had not provided any specific section/provision in the Illegal Dispossession Act, 2005, for compounding the offences; however, S.9 of the Act, 2005, provides that unless otherwise provided in the Illegal Dispossession Act, 2005, the provisions contained under the scheme of Criminal Procedure Code, 1898, shall be applicable to all the proceedings under the Act ibid---Therefore, the compromise arrived at between the parties under the Act ibid should be treated as the compromise within the meaning of S.345, Cr.P.C.---It was an admitted fact that both the parties had amicably settled all their differences and had agreed to pass rest of their lives in peace, tranquility and harmony---Non-compoundability of a particular offence under any section of the enactment should not be read in isolation but it should be read in the background of each criminal case and beneficial interpretation should be given to it---When both parties had earnestly decided to live in peace and tranquility by ignoring and settling all their past differences, then for the sake of their welfare in general and betterment of socio-economic conditions of society as a whole, it would be prime need of the time to accept the compromise and consequently acquit the appellant from the charges---Parties had filed joint applications for compromise, besides the possession of the subject property, had also been handed over to the complainant, therefore, in order to maintain peace and tranquility between the parties, propriety of law demanded to entertain the compromise application---Appeal was allowed, in circumstances.

Akhter Hussain v. SHO Sachal Karachi and 2 others 2020 PCr.LJ Note 20 ref.

Ijaz and another v. Mst. Manadia PLD 2016 Pesh. 26; The State v. Irfanullah Qazi 2007 MLD 1269; Abdul Wali (Wali Khan) and 3 others v. Abdul Rashid Arif and 2 others 2013 PCr.LJ 767; Abdul Wahab and 3 others v. Additional Sessions Judge, Okara and 3 others PLD 2012 Lah. 305; Hussain Bux and others v. The State PLD 2003 Karachi 127; Shahid v. The State and another 2017 YLR note 81 Lahore and Ali Raza and another v. The State and another PLD 2013 Lahore 651 rel.

Appellant present in person (on bail) and Shoukat Ali Kaka Advocate is called absent.

Shahzado Saleem, Additional Prosecutor General for the State.

Complainant (called absent).

Date of hearing: 27th June, 2024.

Judgment

Muhammad Saleem Jessar, J.---By means of instant Criminal Appeal, the appellant has assailed the Judgment dated 15-10-2022 passed by learned Sessions Judge, Sanghar, vide Sessions Case No.109/ 2022, being outcome of complaint under 3(2) and 8 of Illegal Dispossession Act, 2005, whereby the trial court, after full dressed trial, finding the appellant to be guilty of the offence under section 3(2) of the Illegal Dispossession Act, 2005, convicted him for said offence and sentenced him to undergo R.I for three (03) years and to pay fine of Rs.10,000/= (Rupees Ten Thousand Only), In case of non-payment of fine, the appellant was ordered to suffer S.I for three months more. It was further ordered that appellant shall hand over possession of the area in dispute to the complainant; in case of non-delivery of possession as ordered above, same shall be handed over through Mukhtiarkar concerned with the help of police.

1. The brief facts of the complaint filed by complainant Merajuddin under sections 3(2) and 8 of Illegal Dispossession Act, 2005, before trial court are that his agricultural land admeasuring 4-00 acres bearing Survey No.402 situated in deh / Tappo Sinjhoro, Taluka Sinjhoro, District Sanghar, is mutated in Revenue record of rights and has been entered under entry No 315/ 252 dated 28-06-1994 in village form VII-B and since then he is in physical and cultivating possession of said land. On 30-11-2021 at 5.00 p.m he along with his Haries namely Abbas son of Sharif and Iqbal son of Bashir Ahmed was present at the land, in the meantime accused duly armed with deadly weapon criminally trespassed his land, used filthy language and by making aerial firing dispossessed him on show of force without any right, title and character. Then he approached to nek-mards so also to police but to no avail, hence he filed instant complaint.

2. The trial court after calling reports from Mukhtiarkar and SHO concerned brought the complaint on record vide order dated 26-02-2022. Formal Charge was framed against the appellant/ accused at Ex.02, to which he pleaded not guilty and claimed trial vide his plea at Ex.03. In order to prove its Charge, complainant examined in all four (04) witnesses at Exs.04 to 07, including himself, who produced and recognized certain documents, then learned counsel for the complainant closed his side vide statement at Ex.08. Statement of accused, as required under Section 342, Cr.P.C was recorded at Ex.09 wherein he denied the allegations levelled by complainant against him. He produced original sale agreement dated 08-12-2017 executed by complainant in his favour and original lease agreement executed by complainant in favour of one Muhammad Akber (Zamindar of accused) at Ex.09-A and Ex.09/B; however, neither he examined himself on Oath nor produced any witness in his defense. Finally learned trial Court after hearing the arguments of learned counsel for the parties, convicted and sentenced present appellant, as mentioned supra.

3. The appellant present before the court submits that due to compromise and handing over possession of disputed property to complainant, he and complainant had already submitted applications under sections 345(2) and 345(6), Cr.P.C vide M.A.No.8631/ 2023 and M.A.No.8632/ 2023 dated 29-08-2023. He, therefore submits, in the light of judgment passed by this court in case of Akhter Hussain v. SHO Sachal Karachi and 2 others (2020 P Cr L J Note 20) and un-reported order dated 02-12-2022 passed in Criminal Appeal No.S-46/ 2016 Re: Khamiso Khan alias Riaz v. Babar Aftab Siyal and another, his appeal may be allowed and he may be acquitted from the charge by way of compromise.

4. Learned A.P.G, looking to the circumstances of case, has recorded his no objection.

5. Pursuant to notice issued by this court, Mr. Amjad Saeed Dahiri, Mukhtiarkar (Revenue) Taluka Sinjhoro, appeared in person and filed compliance report dated 26-06-2024 along with statement of complainant dated 05-11-2022; it reveals that in compliance of directions contained under impugned judgment, possession of disputed property was handed over to complainant in year 2022.

6. The appellant has mainly pressed for his acquittal on the basis of compromise arrived at between him and complainant, therefore, I would like to deal with the maintainability of compromise applications in Illegal Dispossession Act, 2005, in the first instance.

7. No doubt the legislature has not provided any specific section/provision in the Illegal Dispossession Act, 2005 for compounding the offences under the Act; however, section 9 of the Act, 2005 provides that unless otherwise provided in the Illegal Dispossession Act, 2005, the provisions contained under the scheme of Criminal Procedure Code, 1898 shall be applicable to all the proceedings under the Act ibid. Therefore, I am of the clear view that the compromise arrived at between the parties under the Act ibid should be treated as the compromise within the meaning of section 345, Cr.P.C. Now the question has arisen that the offences under the Act ibid do not find mention in the table provided in section 345, Cr.P.C., therefore, compromise in respect of such offences could be entertained or not by this Court.

8. It is an admitted fact that both the parties have amicably settled all their differences and have agreed to pass rest of their lives in peace, tranquility and harmony. It may be observed that non-compoundability of a particular offence under any section of the enactment should not be read in isolation but it should be read in the background of each criminal case and beneficial interpretation should be given to it. If any authority is needed, reference may be made to the case of Ijaz and another v. Mst. Manadia (PLD 2016 Pesh. 26). In instant case, when both parties have earnestly decided to live in peace and tranquility by ignoring and settling all their past differences, then for the sake of their welfare in general and betterment of socio-economic conditions of the society as a whole, it will be prime need of the time to accept the compromise and consequently acquit the appellant from the charges.

9. In cases of Ijaz and another supra, and The State v. Irfanullah Qazi (2007 MLD 1269), the offences relating to Special Law/ATA etc. were not compoundable, however, on account of compromise arrived at between the parties, the same was recognized by the Honourable Peshawar High Court as well as by this Court. Likewise, in the cases of Abdul Wali (Wali Khan) and 3 others v. Abdul Rashid Arif and 2 others (2013 PCr.LJ 767) and Abdul Wahab and 3 others v. Additional Sessions Judge, Okara and 3 others (PLD 2012 Lah. 305), the compromise was effected between the parties during pendency of the cases before trial Court in terms of sections 3/4 of Illegal Dispossession Act, 2005, which was accepted by the trial Court, however, after acquittal of the accused therein, some of the parties had sought review of the order passed by the trial Court and wanted to reopen the case on certain issues but the Honourable Benches of Lahore as well as Peshawar High Courts declined to disturb the findings of the Courts below on account of compromise and thus have recognized the compromise took place between the parties before trial Court.

10. The appellant was convicted under subsection (2) of section 3 of Illegal Dispossession Act, 2005. The legal question is that when the legislature has not specifically defined in its preamble as to whether the said offence should be treated as compoundable or non-compoundable then the same could be compounded by the parties or not. Although, the Statute viz. The Illegal Dispossession Act, 2005 is silent, whether it is compoundable or non-compoundable, however, the dispute relates to property, thus, the same is presumed to be of civil nature, and in civil rights the room for negotiation ever remains open, therefore, the legislature in its wisdom has left it open for the courts to decide such issue. It is trite of law that when the statute or enactment is silent or where there are two possible interpretations of a provision of law, the one which is favourable to the accused is to be followed. In instant case, the parties have filed joint applications for compromise, besides the possession of the subject property has also been handed over to the complainant, therefore, in order to maintain peace and tranquility between the parties, propriety of law demands to entertain the compromise application. I am of the considered view that if both the parties i.e. the complainant and the appellant/convict, particularly the aggrieved person/victim, have settled their disputes and differences amicably, then such compromise should be accepted by the Court, though under the Statute it has not been specifically defined/clarified as to whether the same is compoundable or non-compoundable. In present case, keeping in view the compromise, which has taken place between the parties outside the Court, it is not proper to uphold the conviction specially when the complainant himself does not want to pursue his case anymore and has raised no objection to the acquittal of the appellant. In support of this view I am fortified by the following decisions of the Superior Courts.

11. In the case reported as ljaz and another supra, while dealing with the similar situation, it was held by Peshawar High Court as under:

"5. No doubt section 436, P.P.C. is not compoundable and section 345, Cr.P.C. is inapplicable to compound it but equally it is an admitted fact that both the parties have amicably settled down all their differences and have resolved to lead rest of their lives in peace and tranquility.

1. Of course, in letter, section 436, P.P.C. is not compoundable. However, non-compoundability of a section of law should not be read in isolation but it should be read in the background of each criminal case and a beneficial interpretation should be given to it. When the parties in the instant case have earnestly decided to live in peace by forgetting all their differences then it will be a need of the hour to acquit the petitioners in the instant case on the basis of compromise despite the non- compoundability of section 436, P.P.C."

2. A Division Bench of this court, while dealing with this point in the case of Hussain Bux and others v. The State reported in PLD 2003 Karachi 127 (DB), has observed as under:

"At this juncture we would like to refer to another objection of Mr. Ali Azhar Tunio, learned Assistant A. G to the effect that the offence under section 302, P.P.C. is compoundable while the offence under section 149, P.P.C. is not compoundable. Although in Second Schedule to Cr.P.C. it is contained that the offence under section 149, P.P.C. is not compoundable but we are persuaded to agree with the views of Mr. Muhammad Bachal Tunio, learned Addl. A. G, and Mr. Ali Nawaz Ghanghro Advocate, the learned amicus curiae, that offence under section 149, P.P.C., is by way of constructive liability and when the main offence is allowed to be compounded and the persons who have taken specific part in the commission of offence are allowed to compound, then the persons who are convicted on account of being merely members of unlawful assembly are also entitled to the concession of compromise/ compounding/waiver, otherwise it would not be in consonance with the principles of justice, in accordance with the injunctions of Islam as laid down in Holy Qur'an and Sunnah."

1. In another case reported as Shahid v. The State and another (2017 YLR Note 81 [Lahore]) it was held as under:

2025 M L D 291

[Sindh]

Before Muhammad Saleem Jessar, J

Muhammad Imran and another---Applicants

Versus

The State---Respondent

Criminal Bail Applications Nos. 1186 along with 824 of 2024, decided on 19th August, 2024.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.394, 397 & 337-F(ii)---Person voluntarily causing hurt in committing robbery, dacoity with murder, qatl-i-amd, dishonestly receiving property stolen in the commission of a decoity, common intention---Post arrest bail, grant of---Further inquiry---Accused was alleged to have retained stolen property in his possession, however the property in question was not recovered from the accused---Seven cellphones recovered from another person, which were allegedly received by him from the accused, were not the case property of the present case---Neither anything incriminating nor the cellphones allegedly robbed were secured from the accused---Recovered cellphones had no nexus or connectivity with the commission of the present offense---Mere foisting of articles or incriminating evidence is not sufficient to connect an individual with the crime unless specifically shown to have been involved---Prosecution had not recovered cellphones from either side along with SIMs through which it could be deduced that same were used by the accused while making conversation with each other, thus, if contents of investigation to the extent of CDR might be presumed to be true even then it required a lot of evidence which was yet to be adduced by the prosecution at the time of trial and the Trial Court had to determine its veracity---No sufficient evidence was found against the accused to connect him with the crime of retaining stolen property---Post-arrest bail was allowed, in circumstances.

Muhammad Ramzan v. Rahib and others PLD 2010 SC 585 1 rel.

Abdul Rasheed alias Sheeda v. The State 1985 SCMR 1778 distinguished.

Muhammad Saddique Gopang for Applicant (in Criminal Bail Application No. 1136 of 2024).

Muhammad Umar Panhwar for Applicants (in Criminal Bail Application No. 824 of 2024).

Siraj Ali Khan Chandio, Addl. Prosecutor General, Sindh for the State.

Abbad-ul-Hasnain for the Complainant.

Date of hearing: 19th August, 2024.

Order

Muhammad Saleem Jessar, J.---By this common order, I intend to dispose of these Bail Applications bearing Nos.1186 and 824 of 2024 as both arise out of one crime bearing No.59 of 2024 registered at P.S Surjani Town, Karachi for offences under Sections 394, 396, 302, 412 and 34m P.P.C. Applicant Muhammad Imran was arrested on 14.02.2024; whereas, applicant Ubaid was arrested on 12.02.2024. Interim challan of the case was filed on 13.06.2024 which is still pending for preliminary proceedings before the Judicial Magistrate in terms of dicta laid down by Hon'ble Supreme Court of Pakistan in case of Muhammad Ramzan v. Rahib and others (PLD 2010 SC 585). The applicants after their arrest, attempted to prefer their bail plea before the Court of first jurisdiction which was declined by means of a common order date 28.03.2024; hence, these bail application(s) have been maintained.

1. The crux of the prosecution case are that complainant Fateh Muhammad got registered instant FIR on 15.01.2024 alleging therein that he along with his son Faiz Muhammad (deceased), cousin and nephew gone to attend marriage ceremony of one of his department's colleague, meanwhile, they were intercepted by two outlaws duly armed with deadly weapons. On foice of weapons, culprits snatched a touch screen mobile phones having IMEI numbers along with SIMs; however, son of complainant namely Faiz Muhammad got hold one of the culprits while others had made straight fires upon his head which became through and through from his ear. Hence, instant FIR was lodged.

2. Learned counsel for the applicants submit that names of the applicants are not mentioned in the FIR nor they were subjected to identification parade after their arrest. They submit that father of applicant Ubaid namely Muhammad Aslam filed an application under Section 491, Cr.P.C on 12.02.2024 before the Court of Sessions Judge, Karachi (West) stating therein that applicant Ubaid had been taken away by the police of Surjani Town, Karachi on 04.02.2024. On filing of that application, applicant Ubaid was shown arrested by the police on same date; whereas, one Laila Khatoon wife of Ghulam Raza as well as Muhammad Bilal, father of applicant Muhammad Imran moved an application to SHO, P.S Surjani Town, Karach on 12.02.2024 contending therein that Ghulam Raza, Abid Hussain and Muhammad Imran were taken away by the police and after issuance of notice to them, they have shown him arrested on 14.02.2024. They further submits that main culprit of robbery as well as murder of son complainant namely Shahzad and Akasha were arrested by the police on 25.02.2024 and later were subjected to identification parade before the Magistrate having jurisdiction on 27.02.2024 through which it could be deduced that complainant as well as witnesses had rightly picked them up during the investigation. Crime weapon was also recovered from one accused Shahzad.

3. Learned counsel further submit that as far as involvement of applicants is concerned, per challan one Naimatullah had sent seven mobile phones to the police concerned via TCS from Quetta and upon statement of said Naimatullah above cellphones have been shown recovered from applicant Ubaid who allegedly runs a mobile sell and purchase shop in the Karachi. As far as, nexus of applicant Muhammad Imran is concerned, both have been involved upon the basis of CDR collected by the police and in their last, learned counsel submit and refer to challan of the case which reveals that person namely Naimatullah who sent mobile phones from Quetta to police and subsequently foisted upon applicant Ubaid was not made as an accused or witness of the crime. Learned counsel places on record a copy of FIR bearing No.202 of 2024 registered with PS Surjani Town, Karachi for offences under Sections 411, 34, P.P.C and submits that all above cellphones allegedly have been shown, were not recovered from exclusive possession of applicant Ubaid, taken on record. Hence, submit that case against applicants requires further inquiry and pray for their release on bail.

4. On the other hand, learned Addl. P.G, Sindh appearing for the State opposes the applications on the ground that all mobile phones have been shown to have been recovered from them; besides, the offence with which applicants have been charged, carries maximum punishment, hence, they are not entitled for the bail. Learned Addl. P.G, Sindh; however, is not in position to controvert the fact that person Naimatullah who sent mobile phones to police via TCS was not made as witness or the accused in this case even he had not been examined by the I.O under Section 161, Cr.P.C.

5. Learned counsel for the complainant also opposes the bail application on the ground that offence with which they have been charged, carries maximum punishment; besides, recovery of robbed articles has been shown to have been effected from them, therefore, they are not entitled for the bail. He also went on to say that section 34 has been added and by virtue of main case, they are also liable to be prosecuted; hence, bail applications in hand merit no consideration and prays for dismissal. In support of his contention, learned counsel places reliance upon case of Abdul Rasheed alias Sheeda v. The State (1985 SCMR 1778 [1]) as well as unreported orders dated 31.01.2017 and 18.09.2023 passed by this Court.

6. Heard arguments, record perused. Admittedly, names of the applicants are not mentioned in the FIR; however, they have been shown involved in the case on the basis of CDR as well as cellphones allegedly recovered from applicant Ubaid. Per challan, the police have specifically mentioned that one Naimatullah disclosed on telephone that he had been using robbed phones which he purchased from applicant Ubaid and later he sent all the cellphones to police through TCS and per record as well as investigation, all recovered cellphones are not the case property of crime No.59 of 2024. The person Naimatullah who dispatched cellphones through TCS to police, was not made as an accused or witness to the proceedings even I.O did not record his 161, Cr.P.C statement. The cellphones shown to have been recovered from applicant Ubaid were not recovered from exclusive possession of the applicants but were sent by Naimatullah from Quetta who has not been made as accused in this case or the witness.

7. The legal question is that when a person who retains or receives stolen/ robbed property in his possession, is to be prosecuted in terms of Sections 411 / 412, P.P.C and the person who retains alleged property in his possession and subsequently sent to police via TCS namely Naimatullah had not been made as an accused or witness in this case. The main thing in this case is that cellphones allegedly robbed from the complainant party at the time of offence had not been recovered from applicants. As far as punishment provided by the law for Section 412, P.P.C is concerned, it provides two punishments; one up to life imprisonment and other may extend to 10 years. Separate FIR bearing No.202/2024 has also been registered by the police for same charge and the prosecution if after recording evidence, may succeed to prove its charge against them, they will be punished according to law. At this juncture, cellphones shown to have been recovered, are not the case property of Crime No.59/ 2024. Since nothing incriminating or cellphone allegedly robbed away from possession of the complainant of instant case, has been secured from possession of the applicants; however, seven cellphones recovered from one Naimatullah which have been recovered from applicant Ubadi are not the case property of instant crime; hence, have got no nexus or connectivity with commission of present offence. All above seven cellphones are strangers to this crime even it has not been brought on record as to when and from whom the same were snatched away. Mere foisting of certain articles/ incriminating is not sufficient to connect an individual with the crime unless specifically shown involved in any criminal case. Since nothing incriminating pertaining to this crime has been shown recovered from the possession of the applicants, therefore, law relied upon by counsel for the complainant has got no relevancy as the facts and circumstances of present case are different and distinguishable from the cases cited at the bar and are not helpful for the prosecution. As far as, CDR is concerned, prosecution has not recovered cellphones from either side along with SIMs through which it could be deduced that same were used by the accused while making conversation with each other. If contents of Investigation Officer to the extent of CDR may be presumed to be true even then it requires lot of evidence which is yet to be adduced by the prosecution at the time of trial before the trial Court and then the trial Court has to determine its veracity.

2025 M L D 300

[Sindh (Hyderabad Bench)]

Before Amjad Ali Sahito, J

Abdul Salam Arif---Appellant

Versus

The State---Respondent

Criminal Appeal No. S-197 of 2023, decided on 15th February, 2024.

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

----Ss. 409, 420, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5---Criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forged document, using as genuine a forged document, criminal misconduct---Appreciation of evidence---Benefit of doubt---Appellant was charged for committing misappropriation of Rs. 1,082,500/= and making changes in ledgers/pay rolls---Prosecution case was based primarily upon the evidence of four witnesses including Post Master and Clerk of Post Office---However, perusal of record clearly reflected that there was no direct evidence available on the record, which could connect the appellant with the commission of the crime as the evidence adducted by two witnesses could not be relied upon against the appellant for the reasons that they were nominated as accused in the first FIR with the same allegation of misappropriation of amount including the appellant---Whereas, Clerk of Post Office stated in his evidence that since the NCHD Authority approached the Divisional Superintendent GPO for opening the accounts of trainees for receiving the stipend and on his direction, the accounts of the trainees were opened for receiving the stipend in various Post Offices---Said witness also stated in his evidence that on 29.09.2011 appellant came along with account holder for receiving amount of Rs.10,82,500/- from whom an authority letter, issued by appellant, was obtained for withdrawal of the amount and then account holder was given the amount---However, that witness during course of his cross-examination clarified that the misappropriated amount was deposited in the account of "GN" and that as per list provided by NCHD the post office was bound to pay Rs.2500/- to each trainee---Nevertheless, the said account holder, who withdrew the amount, was not an accused in the present case---Further, that witness also confirmed that the authority letter produced did not bear the date---While the other witness who was working as Post Master at Post Office also clarified in his evidence that the appearance of account holder and copy of his CNIC was necessary---Crux of the testimonies of those two important witnesses, who belonged to Post Office wherefrom the misappropriated amount was withdrawn was that they did not implicate the appellant---So far as the evidence of complainant was concerned, he stated that the appellant deposited along with roster/list in GPO and confirmed that as per SOP it was not responsibility of appellant being DPML to receive the cheques and look after the finance and the same was to be verified by DGM---Appeal against conviction was allowed, in circumstances.

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

----Ss. 409, 420, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5---Criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forged document, using as genuine a forged document, criminal misconduct---Appreciation of evidence---Benefit of doubt---Defective investigation---Appellant was charged for committing misappropriation of Rs. 1,082,500/= and making changes in ledgers/pay rolls---Record showed that the amount was to be disbursed to the trainees of the Project, but Investigating Officer failed to record statements of trainees in order to strengthen the version of prosecution regarding alleged misappropriation on the part of appellant---Merely saying that the appellant had misappropriated amount would not be sufficient as it was the duty of prosecution to establish its case from all four corners---Investigating Officer during his evidence had also confirmed that there was no account in Post Office opened in the name of appellant nor any transaction of stipend amount was made in any account of the appellant in Bank or Post Office---Even Investigating Officer had not collected any documentary proof regarding alleged misappropriation nor recorded the statement of any of the trainees during investigation---In order to confirm involvement of the appellant in the alleged offence, the Investigating Officer had not collected Call Data Record of Cell number of the appellant for ascertaining the truth---Furthermore, non-association of "AG", Quality Controller, Literacy Coordinator as accused in the instant case, when they were nominated in the earlier FIR had also dented the prosecution case---Appeal against conviction was allowed, in circumstances.

(c) Criminal trial---

----Benefit of doubt---Scope---No conviction can be awarded to an accused until and unless reliable, trustworthy and unimpeachable evidence containing no discrepancy and casting no cloud over the veracity of the prosecution story is adduced by the prosecution.

Syed Noor-e-Mustafa for Appellant.

Bashir Ahmed Almani, Assistant Attorney General for Pakistan for the State.

Dates of hearing: 26th and 29 January, 2024.

Judgment

Amjad Ali Sahito, J.---Through instant criminal appeal, the appellant has challenged judgment dated 23.11.2023 passed by learned Special Judge, Anti-Corruption (Central) Hyderabad in Case No.06 of 2013 emanating from crime No.01/2013 registered at PS FIA Sukkur for the offences punishable under sections 409, 420, 468, 471, P.P.C read with section 5 (2) of Prevention of Corruption Act-II of 1947, whereby the appellant was convicted for the offence punishable under section 409, P.P.C to undergo R.I. for seven years and fine of Rs.200,000/-; in default whereof to suffer S.I. for three months; under section 471 P.P.C to undergo F.I. for two years with fine of Rs.100,000/-; in default whereof to suffer for 45 days. Appellant was also ordered to deposit the embezzled amount of Rs.1,082,500/- in NCHD Kashmore in favour of poor women who were entitled to receive the same as per project of 2011 in NCHD Kashmore, failing which he has to undergo S.I. for one year. However, benefit of section 382-B, Cr.P.C. was extended to the appellant.

1. The brief facts of the prosecution case are that an enquiry bearing No.61/2011 was conducted against the appellant, wherein it was established that he being District Program Manager Literacy in National Commission for Human Development (NCHD), Kashmore has committed misappropriation of Rs.1,082,500/- in the account of one month salary of trainees of NCHD Kashmore and one private person by making changes in ledgers/pay rolls in the GPO, Jacobabad in respect of Project of Benazir Bhutto Shaheed Youth Development Program (BBSYDP) initiated for women of backward/flood affected areas to teach the sewing and stitches to the women for a period of March, 2011 to June 2011. Hence, this case.

2. In order to establish its case, the prosecution has examined PW-1 complainant Mazhar Din District General Manager NCHD Ghotki; PW-2 Abdul Samee District General Manager NCHD Jacobabad; PW-3 Zafrullah Finance Admn Manager in NCHD Jacobabad; PW-4 Hakim Ali Head Post Master Kandhkot; PW-5 Qaimdin Clerk Post Office Kashmore; PW-6 Abdul Ghaffar; PW-7 Ali Sarwar Shah Junior Clerk; PW-8 Muhammad Bachal Post Master Sub-post Office Kashmore; PW-9 Shabbir Ahmed Post Master GPO Jacobabad; PW-10 Muneer Ahmed; PW-11 Ghulam Mujtaba Assistant Finance and Admn Manager at Kashmore; PW-12 Muhammad Hassan Post Master Sub Office GPO Ghouspur and PW-13 Afroze Ahmed I.O. of the case. The prosecution witnesses have also produced numerous documents. Then the prosecution closed its evidence side.

3. Statement of appellant was also recorded in terms of section 342, Cr.P.C., wherein he has denied the allegations levelled against him by claiming his innocence and produced photo copies of documents. However, neither he examined himself on oath nor led any defence.

4. After observing all formalities including recording of statement and hearing the learned counsel for parties, the learned trial Court convicted and sentenced the appellant/accused in the manner as stated above.

5. Learned counsel for the appellant/accused contended that the appellant is innocent and he has been falsely implicated in the instant case; that the alleged incident is said to have taken place in the year 2011; however, instant FIR has been lodged in the year 2013 after long delay without plausible explanation; that the appellant had nothing to do with the alleged offence as he has not committed any act of misappropriation or negligence in respect of stipend of trainees initiated for women of backward/flood affected areas to teach the sewing and stitches to the women in a Project of Benazir Bhutto Shaheed Youth Development Program (BBSYDP), rather the appellant has served his responsibilities in accordance with his job description; that under the said program District General Manager (DGM) and District Finance and Administration Manager has to deal with Government Funds and that the appellant was not posted on the said posts though he was posted as District Program Manager Literacy despite such fact, the appellant was malafidely involved in the instant case; that neither account was opened in the name of appellant nor any transaction of stipend amount was made in any account of the accused in any bank or post office; that as per Departmental Inquiry Report three account holders namely Ali Sarwar Shah, Abdul Ghaffar and Rafique Mirani were used in amount transfer; however, only the appellant was held responsible despite fact that he had nothing to do with it; that those account holders were not made part of any inquiry notwithstanding the entire case is based on these three fake accounts; that initially Mazharuddin, District General Manager NCHD lodged FIR bearing crime No.339/2011 at PS A-Section Kandhkot against appellant and three others, which was transferred to FIA for want of jurisdiction by the competent Court and then Inquiry No.61/2023 was initiated by FIA and present crime was lodged against the appellant only in order to save the skin of real beneficiaries of the embezzled amount and this very fact for non-involvement of said other persons in the instant case shows clear mala fide on their part; that though the offence, with which the appellant is involved, was in respect of misappropriation in the funds to be utilized in stipend of trainees initiated to teach the sewing and stitches to the women in a Project but the Investigating Officer has not recorded the statements of any single trainee during investigation; that no Call Data Record of cell number of the appellant was produced before the trial Court in order to show any conversion in respect of alleged misappropriation of funds made by the appellant with anyone; that there are material contradictions in the evidence of prosecution witnesses as well as evidence; that despite of these essential facts and grounds, learned trial Court has not considered the same and passed the impugned judgment. Concluding his submissions, learned counsel for appellant contended that the case of prosecution afterthought because the misappropriation of funds, if any, therefore the impugned judgment is not sustainable in the eyes of law and is liable to be set aside. He, therefore, prayed for acquittal of the appellant.

6. On the other hand, learned Assistant Attorney General for Pakistan has contended that the accused is involved in misappropriation of huge amount and the prosecution has fully established its case by adducing strong evidence against him, as such, the impugned judgment passed by learned trial Court does not require any interference by this Court. He, therefore, prayed for dismissal of instant appeal.

7. I have heard arguments advanced by both the sides and with their able assistance, have also gone through the record as well as impugned judgment passed by the learned trial Court.

8. The prosecution has alleged that the appellant being District Program Manager Literacy NCHD Kashmore committed misappropriation/ embezzlement to the tune of amounting to Rs.1,455,000/-; out of which Rs.372,500/- was saved by timely action and the remaining amount of Rs.1,082,500/- the appellant has misappropriated from the amount of trainees of NCHD Kashmore by making changes in ledgers/pay rolls in the GPO, Jacobabad by himself depositing and withdrawing a huge amount of one month salary of the trainees in the NCHD employees and one private person in the project of Benazir Bhutto Shaheed Youth Development Program initiated for women of backward/flood affected areas to teach the sewing and stitches of these women for the period of March-2011 to June-2011. In this regard, an enquiry bearing No.61/2011 was conducted by Federal Investigation Agency, Circle Sukkur and as a result whereof, an FIR bearing crime No.339/2011 was registered at PS A-Section Kandhkot, which was transferred to the FIR Circle Sukkur for want of jurisdiction, as such, instant case was lodged.

9. Prosecution has examined as many as thirteen witness before the learned trial Court. The complainant Mazhar Din, who was General Manager in National Commission for Human Development during his evidence stated that "I was given instruction by Project Director for opening of accounts of enrolled women through Bank of respective post offices so that stipend funds might be paid. On the basis of said instruction, I directed to concern Manager Abdul Salam Arif posted at Kashmore alias Kandkot for opening of accounts of enrolled/ trainee woman for payment of stipend amount. Thereafter he opened accounts in various Post Offices of different nearby Talukas after having meeting with Incharge of GPO Post Office of Jacobabad because Head was sitting at Jacobabad not at Kashmore @ Kandkot." In his cross-examination, he deposed that "The District Program Manager Abdul Salam received the said five cheques for the month of May and June 2011 and said amount was to be disbursed among the trainees/ trainers. The said cheques were deposited along with roster/ list by accused Abdul Salem Arif in GPO Jacobabad...... It is fact that as per SOP it is not responsibility of accused being DPML to receive the cheques and look after the finance...... I do not know who received cheques of second installment from our office. It is fact that the said cheques were in the name of DFAM. I initially submitted complaint to local police which was subsequently transferred to FIA. I directly not lodged the FIR at FIA. I do not know the contents of FIR registered by FIA. It is a fact that no any signature was taken by IO of FIA on FIR registered by him. It is a fact that I lodged FIR at local police being 339/2011 of PS 'A' Section Kandhkot. The said FIR was read over to me by the police. It is a fact that said FIR reveals that an amount of Rs,1455000/ - was misappropriated. It is a fact that four accused namely (1) Abdul Ghaffar Noonari, (2) Ali Sarwar Shah Quality Controller, (3) Muhammad Rafique Mirani Literacy Coordinator and present accused were nominated in the said FIR...... It is a fact that cheques produced by me shows that list of trainees was attached with cheques...... It is a fact that list is to be verified by DGM."

10. The most important witness namely Qaimdin, who was Clerk at Post Office Kashmore stated in his evidence that; "On 29.09.2011 I was posted as Clerk in the Post Office at Kashmore. In the year 2011, NCHD Kashmore/ Kandkot started a project assigned by Shaheed Benazir Bhutto Youth Development Program for the purpose of training to the women. The training period of trainees was for four months. NCHD authority approached to Divisional Superintendent GPO Sheeren Zaman for opening the accounts of trainees for receiving the stipend and on the direction of Sheeren Zaman accounts of the trainees were opened for receiving the stipend in various Post Offices including Kashmore. On 29.09.2011 accused present in court namely Muhammad Aslam Arif came along with account holder namely Abdul Ghaffar for the purpose of receiving amount of Rs.10,82,500/ 0 and so also met with Post Master Gul Hassan Chachar who contracted Rao Mohammad Ameen Sr. Post Master as amount was huge and Sr. Post Master instructed Mr. Gul Hassan to obtain authority from the accused for withdrawal of the amount. The accused issued authority letter in favour of Abdul Ghaffar account holder in our office then the amount was given to authority holder. I produce such authority letter as Ex.11/ A and say it is same." However, this witness during course of his cross-examination deposed that; "It is correct to suggest that misappropriate amount of Rs.10,82,500/- was deposited in the account of Abdul Ghaffar Noonari. It is correct to suggest that Abdul Ghaffar Noonari is not accused in the present case. It is a fact that the said program was only for four months. 245 accounts of trainees were opened in the Post Office. As per list provided by NCHD Post office is bound to pay Rs.2500/ - to each trainee. It is fact that authority letter Ex.11/ A does not reveal the date."

11. Prosecution has also examined Abdul Ghaffar, Ali Sarwar Shah as witnesses in the instant case, who were nominated in the first FIR with the allegation of misappropriation of amount.

12. Another important prosecution witness namely Muhammad Hassan, who was working as Post Master at Post Office Kandhkot, who during cross-examination has deposed that "For opening of account in the post office personal appearance of the account holder and copy of his CNIC is necessary."

13. The Investigating Officer of the case PW Afroze Ahmed during course of cross-examination has deposed that; "I have conducted the entire investigation for about 3/4 months. It is correct to suggest that no any account was opened in the name of accused in Post Office. It is correct to suggest that there was no any transaction of stipend amount was made in any account of the accused in any bank of post office... It is correct to suggest that I have not mentioned in my evidence any specific number or name of embezzled account... I have not recorded the statement of any single trainee during investigation... It is correct to suggest that I have not produced the CDR in respect of the cell number of accused so also Ali Sarwar Shah."

2025 M L D 336

[Sindh (Larkana Bench)]

Before Khadim Hussain Soomro, J

Abdul Hameed Chachar---Applicant

Versus

The State and another---Respondents

Criminal Transfer Application No. S-63 of 2024, decided on 1st October, 2024.

Criminal Procedure Code (V of 1898)---

----S. 526---Transfer application---Undue haste on part of Trial Court---Petitioner through application under S. 526, Cr.P.C., sought transfer of case from one Court to another Court---Record revealed that the applicant had lost his confidence in the Trial Court on the ground that on 14.09.2024, the accused engaged a new counsel, who filed vakalatnama as well as adjournment application, which was allowed; however, Trial Court issued Show Cause Notice on the same day with the observation that why the applicant should not be remanded to jail---In reply thereof, the applicant filed a written application, stating therein that he had no confidence in the Trial Court, on which the Trial Court remanded the applicant to jail by way of order dated 14.09.2024, which the applicant had impugned by filing Criminal Miscellaneous Application---Judicial patience referred to the quality of a judge allowing sufficient time for all parties to present their case, including arguments and evidence, without undue haste---Such fact ensured that each party had a fair opportunity to be heard and that all relevant information was considered before reaching a decision---Court was mandated to operate with impartiality and without prejudice, ensuring that justice was administered in a manner that upheld the integrity of the judiciary in the perception of litigants---To foster confidence in the judicial system, it is imperative that the Court uphold the highest ethical standards as prescribed by the Law---Effective justice can only be realized when both parties are present before the Court are provided an opportunity of hearing---However, the rights of the parties must not be restricted, curtailed, or interfered with except as explicitly permitted by law---Prima facie, the argument presented by the applicant appeared to be valid---Applicant sought a fair trial in the ongoing criminal proceedings, a goal that could only be achieved through a foundation of trust in the Trial Court---In light of the such circumstances, it was imperative that Sessions Case currently pending before the Trial Court be transferred to the other Court for its disposal in accordance with law---Criminal Transfer Application was allowed, in circumstances.

Government of NWFP and another v. Dr. Hussain Ahmed Haroon and others 2003 SCMR 104 rel.

Iftikhar Ali Arain and Syed Arbab Ali Shah for Applicant.

Aitbar Ali Bullo, Deputy Prosecutor General, Sindh for the State.

Saeed Ahmed B. Bijarani for Respondent No. 2.

Date of hearing: 1st October, 2024.

Order

Khadim Hussain Soormo, J.---Through instant Criminal Transfer Application, applicant seeks withdrawal of Sessions Case No.262 of 2022 (Re-State v. Abdu-s-Sattar and others), emanziting from Crime No.61/2022, registered at Police Station Buxapur. from the board of learned Additional Sessions Judge-I. Kandhkot and its transfer to the court of Additional Sessions Judge-II, Kandhkot or any other court having jurisdiction.

1. At the very outset, learned counsel for the applicant/accused submits that on 14.09.2024, the accused engaged a new counsel, who filed vakalatnama as well as adjournment applications, which were allowed, however, the learned trial court issued show-cause notice on the same day, subsequently the accused were taken into custody; that the applicant has impugned the order dated 04.09.2024 by filing Cr. Misc. Appln. No. S-331 of 2024; that the applicant has lost faith on the learned trial court Judge, therefore, instant proceedings may be transferred to the court of Additional Sessions Judge Kandhkot-II or any other court having jurisdiction for its disposal in accordance with law.

2. Learned counsel for respondent No.2 as well as learned Deputy Prosecutor General, Sindh appearing for the State have also candidly acceded to the proposal given by the applicant for transfer of the proceedings from the Additional Sessions Judge-I, Kandhkot to the Court of Additional Sessions Judge, Kashmore-Kandhkot or any other court having jurisdiction.

3. I heard learned counsel for the applicant/accused, learned counsel for respondent No.2 and learned Deputy Prosecutor General, Sindh and perused the material available on record.

4. Record reveals that the applicant has lost his confidence in the learned trial Court on the ground that on 14.09.2024, the accused engaged a new counsel, who filed vakalatnama as well as adjournment application; which was allowed: however, learned trial court issued Show-Cause Notice on the same day with observation that why the applicant should not be remanded to the jail. In reply thereof, the applicant filed a written application, stating therein that he has no confidence in the learned trial Court, on which the learned trial Court remanded the applicant to jail by way of order dated 14.09.2024, which the applicant has impugned before this court while filing Criminal Miscellaneous Application No. S-331 of 2024.

5. Judicial patience refers to the quality of a judge allowing sufficient time for all parties to present their case, including arguments and evidence, without undue haste. It ensures that each party has a fair opportunity to be heard and that all relevant information is considered before reaching a decision. Halsbury's Laws of England: Volume 10 (Court Proceedings) often discusses the management of court proceedings. including the Judge's role in ensuring fair and patient handling of cases. The text highlights the importance of allowing sufficient argument and evidence presentation time. Halsbury's Laws of England, Volume 11 (Judges): This volume includes discussions on judicial conduct, where patience is implied as par of a judge's duty to manage court proceedings effectively and impartially.

6. The court is mandated to operate with impartiality and without prejudice, ensuring that justice is administered in a manner that upholds the integrity of the judiciary in the perception of litigants. To foster confidence in the judicial system, it is imperative that the court upholds the highest ethical standards as prescribed by the Law. Effective justice can only be realized when both parties are present before the court are provided an opportunity of hearing. However, the rights of the parties must not be restricted, curtailed, or interfered with except as explicitly permitted by law.

2025 M L D 364

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

Kabeer Ahmed Brohi---Applicant

Versus

The State---Respondent

Crl. Bail Application No. S-75 of 2024, decided on 15th April, 2024.

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Pre-arrest bail, confirmation of---Further inquiry---Delay in lodging the FIR---No doubt the applicant was nominated in the FIR; however, it was registered with an inordinate delay of about 01 months and 23 days, for which no plausible explanation had been furnished by the prosecution---Delay in criminal cases was always been deprecated---As far as the amount in question was concerned, the applicant had placed on record number of documents through his statement, which on perusal revealed that the parties had strained relations over a business transactions; hence, thus disputed the claim of each other---In view of earlier litigation between them, the element of mala fide on the part of complainant could not be ruled out---Moreover, there were disputed facts which were to be thrashed out by the Trial Court after recording pro and contra evidence of the parties at trial---Hence, the case against the applicant required further enquiry within the meaning of subsection (2) to S.497, Cr.P.C.---Consequently, bail application was allowed and the interim pre-arrest bail granted to the applicant earlier was confirmed, in circumstances.

Ch. Saeed Ahmed Khalil v. The State and others 2023 SCMR 1712; Muhammad Imran v. The State and others 2023 SCMR 1152; Zafar Nawaz v. The State 2023 SCMR 1977; Abdul Rasheed v. The State and another 2023; SCMR 1948; Adnan Shehzad v. The State and another 2021 PCr.LJ 914; Shahid Hussain v. The State 2021 PCr.LJ Note 88; Muhammad Shabbir v. The State and others 2020 YLR Note 22 and Muhammad Azhar Iqbal v. The State and another 2021 PCr.LJ 2189 ref.

Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2019 SC 427 rel.

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

----Ss. 497 & 498---Bail---Tentative assessment---Scope---Observations made in a bail order are tentative in nature, which should not influence the Trial Court, in any manner, while conducting trial of the case.

Abdul Rehman Mughal, Advocate along with the Applicant (on bail).

Ali Anwar Kandhro, Addl. Prosecutor General, Sindh for the State.

Nadeem Ahmed Khoso, Advocate along with Complainant.

Date of hearing: 15th April, 2024.

Order

Muhammad Saleem Jessar, J.---Through instant bail application, Applicant Kabeer Ahmed son of Rahim Bux Brohi seeks his admission to pre-arrest bail in Crime No.108 of 2023, registered with Police Station City, Jacobabad, for offence punishable under Section 489-F, P.P.C. The applicant filed anti-cipatory bail application bearing No.979/2023 before the Court of Sessions, which later was assigned to learned Additional Sessions Judge-I/MCTC, Jacobabad, who after hearing the parties as well as the Prosecutor declined such plea of the applicant through his order dated 24.01.2024; hence, instant bail application has been maintained.

1. Learned Counsel submits that prior to registration of FIR of this case the applicant Kabeer Ahmed had filed an application under sections 22-A and 22-B, Cr.P.C vide Cr. Misc. Application No.892/2023 before the Ex-Officio Justice of Peace, Jacobabad against the complainant of this case and others, which by order dated 13.09.2023 was disposed of; hence the complainant filed instant case against him. The main contention of learned Counsel for the applicant is that the applicant had purchased cars from the complainant and had delivered blank cheques to him as guarantee and that the applicant had paid entire amount to the o: complainant and had also returned files of the cars except three cars, but he has not returned the cheques issued by the applicant, as he intended to extort more amount from the applicant. He further submits that after furnishing surety before this Court the applicant has joined the trial before the trial Court and has never misused the concession: As far alleged cheque is concerned, per learned Counsel, the applicant has disputed the same by submitting documentary evidence, which is yet to be, considered and determined by the trial Court; hence, such a situation the case against the applicant requires further enquiry, therefore, prays for grant of bail application. In support of his contentions, he places reliance upon the cases reported as Ch. Saeed Ahmed Khalil v. The State and others (2023 SCMR 1712), Muhammad Imran v. The State and others (2023 SCMR 1152), Zafar Nawaz v. The State (2023 SCMR 1977), Abdul Rasheed v. The State and another (2023 SCMR 1948), Adnan Shehzad v. The State and another (2021 PCr.LJ 914) Shahid Hussain v. The State (2021 PCr.LJ Note 88); Muhammad Shabbir v. The State and others (2020 YLR Note 22) and Muhammad Azhar Iqbal v. The State and another (2021 PCr.LJ 2189).

2. Learned Addl. P.G. submits that since there are disputed facts, therefore, in the light of dicta laid down by the learned Apex Court in the case of Ahmed Shakeel Bhatti and others v. The State and others (2023 SCMR 1), he has no objection for grant of bail application.

2025 M L D 381

[Sindh (Larkana Bench)]

Before Khadim Hussain Soomro, J

Muhammad Ali---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-184 of 2024, decided on 15th August, 2024.

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

----S. 498---Penal Code (XLV of 1860), Ss. 337-A(i), 337-A(iii), 337-F(i), 337-F(v), 337-L(ii), 504, 147 & 149---Causing lathi injuries---Interim---Pre-arrest bail, realling of---Admittedly, the applicant/accused was nominated in the F.I.R with a specific role of causing lathi injury to the son of the complainant on his head, which was a vital part of the body---Injury was declared to be shajjah-i-hashimah falling under S.337-A(iii), P.P.C and carried a punishment of ten years---Eye-witnesses had recorded their S.161, Cr.P.C statements, which fully implicated the applicant/accused with the commission of an offence---Ocular version of the witnesses was supported by medical evidence---Defence failed to point out any ill will either on the part of the complainant or the Investigating Officer to implicate the applicant accused in the offence---On the sole ground of delay in the registration of FIR., bail could not be granted---Applicant had raised the plea of alibi by saying that he was not available at the relevant time at the place of the incident, but he was busy in his office---Although a plea of alibi could not be summarily dismissed, it was essential to assess its genuineness and authenticity---Such evaluation could only be properly undertaken when the matter was brought before the Trial Court---Applicant alleged that the co-accused had been granted pre-arrest bail by the Trial Court, whereas the request for pre-arrest bail by the present applicant had been rejected---Said co-accused were predominantly associated with injuries categorized under Ss.337-A(i), F(i), and L(2) of the P.P.C, which were bailable offences---In contrast, the role of the present applicant was entirely distinct from those of the co-accused who were granted pre-arrest bail---Consequently, the principle of consistency did not apply in the matter---Pre-arrest bail is an exceptional remedy characterized by a limited scope and it may only be granted under circumstances where the applicant does not prima facie appear to have committed a non-bailable offence or where there exists a necessity for further probe into his culpability, as outlined in S.497(2), Cr.P.C, which was prima facie missing in the present case---Primary objectives of pre-arrest bail are to protect individuals from the threat of arrest arising from potential abuse of process driven by malicious intent or malevolence, which had not been demonstrated in the present case---Pre-arrest bail petition was dismissed, in circumstances---Resultantly, interim pre-arrest bail granted to the applicant was recalled.

2016 SCMR 18 and Muhammad Arif and another v. The State and another 2020 YLR 1930 ref.

Naseer Ahmad v. The State PLD 1997 SC 347; Muhammad Atif v. The State 2024 SCMR 1071 and Rana Abdul Khaliq v. The State 2019 SCMR 1129 rel.

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

----Ss. 497 & 498---Bail---Tentative assessment---Scope---Observations made in bail orders are tentative in nature and should not influence the Trial Court while deciding the case of either party.

Abdul Rauf Memon for Applicant.

Farooq Ahmed Gaad for the Complainant.

Aitbar Ali Bullo, Deputy Prosecutor General, Sindh for the State.

Date of hearing: 15th August, 2024.

Order

Khadim Hussain Soomro, J.---Through instant Criminal Bail Application, applicant/accused Muhammad Ali son of Abdul Khalique, seeks pre-arrest bail in Crime No. 34/2024, offence under Sections 337-A(i)(iii), 337-F(i) (v), 337-L(ii), 504, 147, 149, P.P.C. of the Police Station A-Section Thull. Prior to this, he filed such an application, but the same was dismissed by the Court of Additional Sessions Judge, Thull vide Order dated 27.03.2024; hence, he filed an instant Criminal Bail Application.

2 The facts, in a nutshell, are that there was a dispute going on between the parties on the allegation of Karo-Kari and on 03.03.2024, the Complainant, along with her son Mansab and nephew Ghulam Rabbani, were going back to their village, Sahib Dino Soomro from the city (Thull) after finishing usual work, when they reached Bolaki Laro, K.Kot road at about 06:00 p.m., they noticed five persons on two motorcycles, who were identified to be Muhammad Ali, Abdul Malik both sons of Abdul Khalique, Hamadullah son of Kamal Din, Ahsan All son of Abdul Qadir and Aftab Ahmed son of Habibullah all by caste Soomro duly armed with lathies, stopped their rickshaw and started abusing complainant party and threatened them if they will not give faisla of Karo Kari they will teach them lesson. By saving so, accused Muhammad Ali caused a lathi blow to Mansab on his head, Aftab caused a lathi blow to Mansab on his wrist of right hand, accused Hamadullah caused a lathi blow to Mansab on his right leg, accused Abdul Malik caused a lathi blow to Mansab on his right side of face and accused Ahsan caused lathi blow to Mansab on his back. The complainant party raised cries, and then all the accused fled away thereafter, after getting the letter from the Politic Station, they rushed again to the Police Station with a certificate and lodged instant FIR.

1. Learned counsel submits that the Applicant/accused is innocent, and he has been falsely implicated in this case by the Complainant with mala fide intention and ulterior motives; that there is a delay of one month in lodgment of the FIR and the Complainant has not plausibly explained such delay; that the Applicant/accused is serving in Revenue Department and at the time of occurrence of incident, he was present in the office of the Assistant Commission, Thull hence pica of alibi is every much attracted in the present case. He lastly argued that the Applicant / accused is entitled to the concession of bail; hence, the interim pre-arrest bail earlier granted to him vide Order dated 02.04.2024 may be confirmed on the same terms and conditions. In support of his contentions, he relied upon the case law reported as 2016 SCMR 18.

2. On the other hand, the learned counsel for the Complainant as well as the learned Deputy Prosecutor General, Sindh, opposed the grant of bail to the Applicant/accused on the ground that the applicant has been nominated in the FIR with a specific role of causing lathi blow to the son of the Complainant namely Mansab on his head, which is a vital part of the body and carries punishment of 10 years; that due to such head injury the son of the Complainant is still under treatment and is not fully conscious; that the plea of alibi taken by the counsel for the applicant could not be considered at bail stage and would be determined by the trial Court after recording pro and contra evidence of the witnesses. In support of his contentions, learned counsel for the Complainant has relied upon the case law reported as 2020 YLR 1930 (Muhammad Arif and another v. The State and another) and submits that the interim pre-arrest bail granted to the applicant may be recalled.

3. I have heard arguments from the learned counsel for the parties and have perused the material available on record with their assistance and the case law relied upon.

4. Admittedly, the Applicant / accused is nominated in the FIR with a specific role of causing lathi injury to the son of the Complainant on his head, which is a vital part of the body. The injury is declared to be Shajjah-i-hashimah falls under Section 337-A(iii), P.P.C and carry a punishment of ten years. The eye-witnesses have recorded their 161, Cr.P.C. statements, which fully implicates the applicant/accused with the commission of an offence. The ocular version of the witnesses is supported by medical evidence. The defence counsel also failed to point out any ill will either on the part of the Complainant or the Investigating Officer to implicate the applicant accused in the offence. Sole on the grounds of delay in the registration of FIR, bail cannot be granted.

5. The applicant has raised the plea of alibi by saying that he was not available at the relevant time at the place of the incident, but he was busy in his office. Although a plea of alibi cannot be summarily dismissed, it is essential to assess its genuineness and authenticity. This evaluation can only be properly undertaken when the matter is brought before the trial Court. In the case titled "Naseer Ahmad v. The State (PLD 1997 SC 347), the apex court of Pakistan has observed that a contemporary trend has emerged wherein eye-witnesses occasionally alter their statements, diverging from the prosecution's case, and may also submit affidavits during the bail application hearings of accused individuals. This practice appears to be aimed at casting doubt on the prosecution's case to facilitate the accused's release on bail. This requires a clear distinction between a preliminary assessment and the comprehensive evaluation of evidence that can only be done during the trial after considering all evidence adduced by both parties before the trial court.

6. Reverting to the plea of the learned counsel for the applicant that the co-accused, specifically Abdul Malik, Abdul Hameed, and Aftab Ahmed, have been granted pre-arrest bail by the learned Trial Court, whereas the request for pre-arrest bail by the present applicant has been rejected. It is pertinent to note that the aforementioned applicants were predominantly associated with injuries categorized under Sections 337-A(i), 337-F(i), and 337-L(2) of the Pakistan Penal Code, which are bailable offences. In contrast, the role of the present applicant is entirely distinct from those of the co-accused who were granted pre-arrest bail. Consequently, the principle of consistency does not apply in this matter. The reliance can be placed in the case of Muhammad Atif v. The State 2024 SCMR 1071.

2025 M L D 391

[Sindh]

Before Mohammad Karim Khan Agha, J

Mst. Mariam Butt---Petitioner

Versus

Asad and 2 others---Respondents

C.P. No. S-1084 of 2023, decided on 15th August, 2024.

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

----Ss. 5, Sched. & 14---Constitution of Pakistan, Art. 199---Suit for dissolution of marriage, recovery of maintenance allowance and dowry articles---Concurrent findings of fact recorded by the Family Court and Appellate Court qua maintenance and dowry articles---Bar of second appeal---Reappraisal of evidence---Interference by the High Court in its constitutional jurisdiction---Scope---High Court could not go into the issue of maintenance and recovery of dowry articles being factual issues, which were decided by the Trial Court after leading evidence---In family matters under the Family Courts Act, 1964, only one right of appeal is provided and no further proceedings in the constitutional jurisdiction could take place unless exceptional circumstances exist, which were missing in the present case---Constitutional petition was dismissed, in circumstances.

Arif Fareed v. Bibi Sara 2023 SCMR 413; M. Hamad Hassan v. Mst. Isma Bukhari 2023 SCMR 1434 and Syed Raheel Ahmed v. Mst. Syeda Zona Naqvi Civil Petition No. 473-K of 2024 rel.

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

----S. 14---Constitution of Pakistan, Art. 199---Limitation Act (IX of 1908), S.5---Constitutional petition---Maintainability---Time barred appeal---Plea of non-consideration of ground of medical issues---Validity---Appeal was dismissed being time barred---Appellate Court considered the explanation given by the petitioner for filing appeal after such a delay and after a careful analysis had come to the conclusion that despite medical evidence being provided there was no adequate reason why the appeal was not filed within time, but with a delay---Constitutional petition was dismissed, in circumstances.

Adnan Iqbal for Petitioner.

Farmanullah for Respondent.

Sheheryar Qazi and S. Arshad Hussain Naqvi, Addl. Advocates General, Sindh.

Date of hearing: 15th August, 2024.

Order

Mohammad Karim Khan Agha, J.---Petitioner Mst. Mariam Butt had filed a suit for Dissolution of Marriage, Recovery of Dowry Articles and Maintenance as recovery of Rs.95000/- being Family Suit No.1589 of 2022 which proceeded in the Court of XVIIth Civil Judge and Judicial Magistrate (South) Karachi. After full dressed trial wherein the evidence was recorded learned trial Court passed order dated 30.05.2023 where the following orders in terms of Dowry Articles which the petitioner should receive, were passed which is reproduced hereunder:-

"The whys and wherefores lead this court to order that plaintiff is entitled to maintenance at rate of Rs.15,000/- for Iddat period. Defendant is entitled for dower amount of Rs.10,000/- from plaintiff. Plaintiff is entitled to recovery of articles i.e. Bed, dressing table, Cupboard, showcase, Fridge, Microwave Oven, Washing Machine, Juicer Machine, Iron, Pedestal Fan, LED, Sewing Machine, Wall Clock, Stabilizer, Marble dinner set, plastic dinner set, Water set, hot pot set, Water Cooler set, Non-stick set, cutlery set, Cooking spoons set, Pressure cooker, two blankets, one A/C blanket, five bed sheets, Pizza plates set, bridal set, prayer met in case of missing any article defendant is directed to pay the amount of such missing article. The Costs shall follow the event. Office to prepare the decree accordingly."

1. Petitioner Mst. Mariam Butt being dissatisfied with aforesaid order as she wanted more dowry articles returned filed Family Appeal No.124/2023 which was dismissed vide order dated 09.08.2023 largely that it was time barred in the following terms:-

"Having regard, the arguments, it is observed that Judgment and decree is dated 30-05-2023 whereas application for certified copy was filed on 31-05-2023 sod cost was paid on 08-06-2023 while copy was delivered on 10-06-2023. So even if we exclude the time requisite for obtaining certified copies, it is observed that certified copy was made available on 10-06-2023, thus even if consider that limitation starts; thereof then from 10-06-2023, the appeal was to be preferred in period of 30 days as provided under the Family Law/ Rules, thus the appeal was to be manifested by 10-07-2023, however; it only been presented 26-07-2023. The appellant side in due course of hearing, having obtained time for rendering arguments on 07-08-2023 filed a separate application under section 05 of the Limitation Act, 1908. The reason thus through application in support of plausibility rendered for delay submission of appeal, it is contended that due to ailment the appellant was not in position to appear before Court. There is medical appended which at very outset is not endorsed as valid for Court. Perusal of the same shows that it does not depict such a medical ailment which would enable Court to understand that physical restraint was placed upon the appellant virtue such ailment. The medical documents show certain medication pertaining to gastric elements and fewer blood reports but no specification is available which would show that ailment was of such degree that movement of the appellant got restricted. The appeal is to be manifested within 30 days of the Judgment and Decree in terms of Rule 22 of the West Pakistan Family Court Rules, 1965 and if filed with delay then under the law each and every day has to be explained. If is observed that no specification otherwise is provided by the appellant qua for ailment or even about its nature and diagnosis. The limitation is a living law and the question of limitation being not a mere technicality could not be taken lightly and rights accrued to other party due to limitation could not be snatched away without sufficient cause and lawful jurisdiction, It has been held in 2023 SCMR 291 wherein August Supreme Court of Pakistan has held that "law of limitation reduces an effect of extinguishment of a right of a party when significant lapses occur - When no sufficient cause for such laps, delay or time barred action is shown by the defaulting party, the opposite party is entitled to a right accrued by such lapses---Omission and negligence of not filing the proceedings within the prescribe limitation period creates a right in favour of the opposite party.". In the application under section 05 of the Limitation Act, 1908 has been filed by the appellant and no explanation has been to justify the delay in filing of appeal. The ground of medical ailment is very generalized ground without specification thereto. Rather when the Judgment was passed, both sides were available and in their presence Judgment was pronounced and no reasonable or sufficient cause is shown which would move Court to condone the delay in preferring the appeal whether be it for a day or weeks."

1. Hence the petitioner Mariam Butt has filed the instant petition against the aforesaid order and order in appeal.

2025 M L D 418

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ali Sangi, J

Farooque---Appellant

Versus

The State---Respondent

Criminal Jail Appeal No. S-68 of 2022, decided on 11th October, 2024.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account supported by medical evidence---Accused were charged for committing murder of the brother of complainant by firing---In the case in hand three eye-witnesses including the complainant had fully supported the case by specifically deposing that on the day of incident in their presence appellant and his accomplices made straight firing from their pistols upon deceased who received firearm injuries---Complainant party took him for treatment to the hospital however he succumbed to the injuries at the gate of hospital---Moreover, it was daytime incident and the parties were known to each other being relatives and residents of the same vicinity---As per the evidence of eye-witnesses the accused did not conceal their faces therefore there was no chance of mistaken identity---Perusal of record reflected that the incident took place on 25-07-2020 at 1020 hours and on the same day at 1100 hours complainant brought the deceased at hospital where at the main gate of hospital deceased died---According to evidence of Medical Officer the police reached and completed the legal formalities which suggested that complainant was in contact with the police to whom he narrated the offence promptly---Evidence of three eye-witnesses that accused ran away by foot from the place of incident leaving his motorbike as his motorbike did not start was strengthened from the fact that from the place of incident said motorbike was recovered by the police---Ocular account furnished by three eye-witnesses was further supported by the medical account and to prove unnatural death of deceased, the prosecution examined Medical Officer who while deposing had confirmed that on 25.07.2020, he received dead body brought at hospital for conducting postmortem and report---As per the postmortem report deceased received 05 firearm injuries which were through and through---Defence cross-examined the Medical Officer but did not succeed in getting any material which might favour the appellant---Appeal against conviction was dismissed, in circumstances.

Muhammad Ehsan v. The State 2006 SCMR 1857; Ashfaq Ahmed v. The State 2007 SCMR 641; Nawab Ali v. The State 2014 PCr.LJ 885; Nazir Ahmed v. The State 2009 SCMR 523; Khadim Nabi v. Rasheed Ur Rehman and another 2020 PCr.LJ 433; Arshad Ali v. The State and others 2024 MLD 212; Amanullah Shah and another v. The State and another 2023 YLR 1865; Bakht Nawas and another v. The State and another 2020 YLR 1685 and Muhammad Farooq v. The State and another 2023 PCr.LJ 1771 ref.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive proved---Accused were charged for committing murder of the brother of complainant by firing---Motive set out by the complainant was that prior to the incident "SJ" was murdered in an encounter with the police and the accused persons were of the view that it was the deceased who gave information to the police in respect of "SJ" and on such information an encounter took place resulting into the death of "SJ" (father of the appellant), therefore, for taking revenge they committed the murder---Motive set out by the complainant was not denied during cross-examination nor a strong plea of false implication was taken by the appellant---Cross-examination conducted by the defence on the witnesses was carefully examined and no substance favorable to the appellant was found---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence from the possession of accused and crime empties from the spot---Reliance---Accused were charged for committing murder of the brother of complainant by firing---Accused was arrested on 07-09-2020 and on search police recovered a TT pistol from the left fold along with eight bullets in a magazine which were sealed on the spot---Investigation Officer deposed that the recovered pistol and the empties from the place of incident were sent for Forensic Science Laboratory Report and positive Forensic Science Laboratory Report was received---Blood stained cloths of the deceased and blood stained earth was also sent for Forensic Science Laboratory and a positive report was received---Investigation Officer had fully supported the case and the recoveries, which were also supported by the mashir who was also the eye-witness of the incident---Investigation Officer and the mashir were cross-examined at length but defence failed to create a dent in their evidence---Appeal against conviction was dismissed, in circumstances.

(d) Criminal trial---

----Statement of sole eye-witness---Reliance---Sole evidence of a material witness i.e. an eye-witness is always sufficient to establish guilt of the accused if the same is confidence-inspiring and trustworthy and supported by other independent source of evidence because the law considers quality of evidence and not its quantity to prove the charge.

Muhammad Ehsan v. The State 2006 SCMR 1857; Niaz-Ud-Din v. The State 2011 SCMR 725; Allah Bakhsh v. Shammi and others PLD 1980 SC 225 and Muhammad Ehsan v. The State 2006 SCMR 1857 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Related and interested witnesses, evidence of---Reliance---Accused were charged for committing murder of the brother of complainant by firing---Eye-witnesses had sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence---Both the parties were known to each other and were relatives and the incident was a daytime incident, therefore, there was no chance of mistaken identity of the appellant---Where the witnesses fell within the category of natural witnesses and detailed the manner of the incident in a confidence-inspiring manner then only escape available with the accused/appellant was to satisfactorily establish that witnesses were not witnesses of truth but "interested" ones---An interested witness is not the one who is relative or friend but is one who has a motive to falsely implicate an accused---Mere relationship of eye-witnesses with the deceased alone is not enough to discard testimony of the complainant and his witnesses---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, common intention---Appreciation of evidence---Defence plea of previous enmity and false implication not established---Accused were charged for committing murder of the brother of complainant by firing---In matters of capital punishment, the accused would not stand absolved by making a mere allegation of dispute/enmity but was required to bring on record evidence that there had been such a dispute/enmity which could be believed to have motivated the "natural witnesses" to involve innocent persons at the cost of escape of "real culprits"---No tangible substance had been brought on record by the appellant to justify his false implication in the case at the hands of complainant party on account of any previous enmity---Documents produced by accused in his support were belied by his own defence witness (maternal aunt of accused) who in her cross-examination admitted that at the time of incident she had not gone to Police Station for registration of FIR against complainant and that she had not gone to the Court for getting the order of registration of FIR after the incident---If such wavering statement of the defence witness produced by the appellant in his defence was believed to be true then it had obviously made the defence plea of the appellant doubtful---Appeal against conviction was dismissed, in circumstances.

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

(g) Criminal trial---

----Minor contradictions---Scope---Where in the evidence, the prosecution establishes its case beyond reasonable doubt then if some minor contradictions arise, which are always available in each and every case the same are to be ignored.

Zakir Khan v. The State 1995 SCMR 1793 rel.

Muhammad Saad Saeed Qureshi for Appellant.

Aijaz Shaikh for the Complainant.

Ms. Rameshan Oad, Assistant Prosecutor General for the State.

Dateof hearing: 30th September, 2024.

Judgment

Zulfiqar Ali Sangi, J.--- Appellant was charged for committing murder / qatl-i-amd of Haji Wali Muhammad Jamali, a brother of complainant, at the road of Sehrish Nagar going towards Ali palace, near Max Bachat Mart, Hyderabad on 25.07.2020 in presence of witnesses including complainant. He was tried against such charge by learned Model Criminal Trial Court-I, Hyderabad, and has been returned guilty verdict vide impugned judgment dated 16.04.2022 in Sessions Case No.1199 of 2020, arising out of Crime No.135 of 2020, registered as Police Station Qasimabad, District Hyderabad and was sentenced to undergo rigorous imprisonment for life and to pay compensation of Rs.1,00,000/- (Rupees one lac), as required under section 544-A Cr.P.C., to the legal heirs, in case of non-payment, to suffer SI for six (06) months more. Benefit of Section 382-B, Cr.P.C, has also been extended to him.

1. Complainant Riaz has alleged in FIR that his relative Shoban Jamali was murdered during the encounter but after his death, his uncle Saindad and his son Ahmed used to issue threats to the brother of complainant namely Wali Muhammad Jamali that he helped police with a spy to commit his encounter and due to this grudge accused party started to fight with complainant and his relatives despite of the fact that cases are pending in between them in Courts of law. Even the complainant party approached nekmards of brothery to compromise, but the accused party had not come on faisla. On 25.07.2020, the complainant, his friend Javed Hussain on one motorcycle, while his brother Wali Muhammad Jamali on a separate motorcycle went to the main Bazar Qasimabad for the purpose of work, his brother Wali Muhammad was just ahead of them and reached at road going from Sehrish Nagar to Ali palace near Max Bachat Mart at 1020 hours they had heard the sound of fire shots and within their sight four individuals boarding on two motorcycles holding pistols namely Imdad (since absconding) present appellant Farooque, Ghulam Fareed (since absconding) and unknown culprit (later on joined as absconding accused namely Abid alias Dasoo) with open face made straight fires upon Wali Muhammad Jamali to commit his murder who fell on earth. Complainant's friend Ghulam Sarwar joined them and they all made hackals to accused who tried to run away by starting motorcycles but motorcycles of Imdad and Forooq did not start who left it there and went towards Sheedi Goth. Complainant and PWs remained silent due to empty handed. Imdad Jamali (since absconding) was voicing slogans that he has taken revenge of his cousin Shoban Jamali. Thereafter they seen Wali Muhammad Jamali receiving injuries on his left hand and abdomen and blood was oozing and then arranged vehicle and took him to Civil Hospital for treatment but due to aforesaid injuries he died at the gate of Civil Hospital. The incharge of Check post Naseem Nagar reached there who made necessary proceedings then complainant brought dead body of Wali Muhammad Jamali at home and was busy in funeral proceedings and after burial appeared at PS and lodged instant FIR.

2. On 07.09.2020, during investigation, appellant Farooque was arrested and from him a TT Pistol of .30 bore with magazine, used in crime, with 08 live bullets of .30 bore were recovered, which were sent to lab for FSL report.

3. After usual investigation, Challan was submitted in the Court, and after due formalities, a charge was framed against the accused. He pleaded not guilty; hence, prosecution examined six (06) witnesses who have produced all the necessary documents i.e. FIR, postmortem report, memos etc. to prove the charge against the appellant.

4. Thereafter, statement of accused under section 342, Cr.P.C. was recorded. He has denied prosecution's case, professed his innocence on the contrary, and opted not to examine either himself on oath or any witness in defence. The trial Court, after hearing the parties and examining the entire record, has handed down the impugned judgment as stated above.

5. Learned Counsel for the appellant has argued that there is delay of two days in registration of FIR and no plausible explanation has been furnished by the complainant; that in the entry No.11 the name of appellant is not mentioned; that mashirnamas were prepared prior to the FIR; that presence of PWs is doubtful as they are chance witnesses; that independent witness has not been cited; that ocular evidence contradicts with medical evidence; that place of arrest is disputed; that appellant is innocent, has been falsely implicated in this case; no confidence inspiring evidence has been brought on record against him; that the evidence of witnesses is weak in that on various features of the story they have contradicted each other; that the weapon has been foisted upon the appellant and nothing was recovered from him; the positive FSL reports have been manipulated to favour the prosecution's case by the IO; that evidence of the IO rings ordinary, he has revealed the events mechanically in routine manner, which shows that he conducted investigation and submitted its report blindly at the instance of complainant. Lastly, he contended that by extending benefit of the doubt appellant may be acquitted. He had relied upon the cases of Muhammad Ehsan v. The State (2006 SCMR 1857), Ashfaq Ahmed v. The State (2007 SCMR 641), Nawab Ali v. The State (2014 PCr.LJ 885), Nazir Ahmed v. The State (2009 SCMR 523), Khadim Nabi v. Rasheed ur Rehman and another (2020 PCr.L J 433), Arshad Ali v. The State and others (2024 MLD 212), Amanullah Shah and another v. The State and another (2023 YLR 1865), Bakht Nawas and another v. The State and another (2020 YLR 1685) and Muhammad Farooq v. The State and another (2023 PCr.LJ 1771).

6. On the contrary, learned Counsel for the complainant and APG have supported the impugned judgment by contending that appellant is named in the FIR with specific role of firing upon the deceased; that medical evidence has supported the ocular version; that recovery of crime weapon from appellant and empties collected from place of incident have matched; that Forensic Science Laboratory reports are positive; that appellant has rightly been identified by the complainant party as being daytime incident as such there is no chance of mistaken his identity; that appellant neither opted to examine himself in terms of section 340(2), Cr.P.C nor brought any defence witness to depose in his favour; that PWs are not interested; that enmity is a double edge weapon which cut both the sides; that no major contradiction has been pointed out by learned defence counsel to favour the appellant, therefore, they prayed for dismissal of instant appeal.

7. I have heard learned counsel for the parties and have minutely gone through the material available on the record with their able assistance.

8. In the case in hand three eye-witnesses PWs-1, 2 and 3 including the complainant have fully supported the case by specifically deposing that on the day of incident in their presence appellant and other his accomplices made straight firing from their pistols upon deceased Wali Muhammad who received firearm injuries and complainant party took him for the treatment towards the hospital however he succumbed to the injuries at the gate of hospital. The police officials completed the formalities and the postmortem was conducted thereafter dead body of the deceased was handed over to complainant party. It was daytime incident and the parties were known to each other being relative and being resident of the same vicinity. As per the evidence of eye-witnesses the accused were with open faces therefore there is no chance of mistaken identity. The perusal of record reflects that the incident took place on 25-07-2020 at 1020 hours and on the same date at 1100 hours complainant brought the deceased at hospital where at the main gate of hospital deceased died and as per the evidence of PW-05 Dr. Shahzad Arain he started the postmortem from 11-30 to 1 pm. It has also come in the evidence that the police reached and completed the legal formalities which suggest that complainant was in contact with the police to whom he narrated the offence promptly. The motive set out by the complainant was that prior to the incident Shoban Jamali was murdered in an encounter with the police and the accused persons were of the view it was the deceased who gave information to the police in respect of Shoban and on that information an encounter took place resulting to the death of Shoban (father of the appellant) therefore by taking such revenge they committed the murder. The motive set out by the complainant was not denied during the cross-examination nor was strong plea taken by the appellant for his false implication. The cross-examination conducted by the defence counsel to the witnesses is carefully examined found no substance favorable to the appellant.

9. The evidence of complainant and the PW-3 Ghulam Sarwar also supports the evidence of PW-04 SIP Saif-ur-Rehman (Duty Officer/Investigation Officer) that injuries were inspected coupled with preparation of mashirnama, recovery of blood stained earth coupled with the recovery of three empties of 30 bore pistol and one empty of .9mm pistol so also one black color magazine containing with four live bullets from the place of incident. The evidence of three PWs in respect that accused Farooq (appellant) runway by foot from the place of incident leaving his motorbike as his motorbike was not started is strengthened from the fact that from the place of incident said motorbike was recovered by the police by preparing the mashirnama. PW-3 and PW-4 also confirm that the appellant was arrested on 07-09-2020 from Sehrish Nagar Phatak and on search police recovered the TT pistol from left fold along with eight bullets in magazine which on spot was sealed. The investigation officer deposed that the recovered pistol and the empties from the place of incident were sent for FSL report and positive FSL report was received which was exhibited in the evidence. The blood stained cloths of the deceased and blood stained earth was also sent for FSL and a positive report was received and exhibited in the evidence. The PW-4 (Investigation Officer) had fully supported the case and the recoveries as discussed above which too supported by the PW-3 mashir who was also the eye-witness of the incident. The investigation Officer and the mashir were cross-examined at length but defence counsel failed to create a dent in their evidence.

10. The ocular account furnished by above three eye-witnesses was further supported by the medical account and to prove un-natural death of deceased Wali Muhammad, the prosecution examined PW-05 Dr. Shahzad Arain who while deposing has confirmed that on 25.07.2020, he while posted as MLO at LUH, Hyderabad received dead body brought at hospital by SIP Saif-ur-Rehman for conducting postmortem and report. The dead body was identified by one Riaz Jamali the brother of the deceased. The postmortem was started on the same date at about 11-30 am, completed it at about 01.00 P.M. As per the postmortem report deceased received 05 firearm injuries which were through and through. As per the opinion of the doctor the cause of death of the deceased was due to damage of right lung and also lower lobe of liver which cause heavy bleeding leads hemorrhage shock and cardio respiratory failure resulted into death caused by discharge from fire arm. The defence counsel also cross-examined the doctor but not succeeded in getting material which may favor the appellant.

11. In the present case, three eye-witnesses have fully supported the case as has been discussed above. However, the sole evidence of a material witness i.e an eye-witness is always sufficient to establish guilt of the accused if the same is confidence-inspiring and trustworthy and supported by other independent source of evidence because the law considers quality of evidence and not its quantity to prove the charge. The accused can be convicted if the Court finds direct oral evidence of one eye-witness to be reliable, trustworthy and confidence-inspiring. In this respect, reliance is placed on cases of Muhammad Ehsan v. The State (2006 SCMR 1857) and Niaz-ud-Din v. The State (2011 SCMR 725). Further, the Supreme Court in case of Allah Bakhsh v. Shammi and others (PLD 1980 SC 225) also held that "even in murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable." There can be no denial to the legally established principle of law that it is always the direct evidence which is material to decide a fact (charge). The failure of direct evidence is always sufficient to hold a criminal charge as 'not proved' but where direct evidence holds the field and stands the test of it being natural and confidence-inspiring then the requirement of independent corroboration is only a rule of abundant caution and not a mandatory rule to be applied invariably in each case. Reliance can safely be placed on case of Muhammad Ehsan v. The State (2006 SCMR-1857), wherein the Honourable Supreme Court of Pakistan has held that;-

"5. It be noted that this Court has time and again held that the rule of corroboration is rule of abundant caution and not a mandatory rule to be applied invariably in each case rather this is settled principle that if the Court is satisfied about the truthfulness of direct evidence, the requirement of corroborative evidence would not be of much significance in that, as it may as in the present case eye-witness account which is unimpeachable and confidence-inspiring character and is corroborated by medical evidence".

1. Learned counsel for appellant mainly focused on the point that the witnesses are near relatives to deceased and are interested therefore, their evidence cannot be relied upon. The contention raised has no force as in the instant matter, the eye-witnesses have sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence. Both the parties are known to each other and are relative as is evident from their evidence and the incident is a daytime incident, therefore, there was no chance of mistaken identity of the appellant. It is observed that where the witnesses fall within the category of natural witnesses and detailed the manner of the incident in a confidence-inspiring manner then only escape available with the accused/appellant is to satisfactorily establish that witnesses are not the witnesses of truth but "interested" one. An interested witness is not the one who is relative or friend but is the one who has a motive to falsely implicate an accused. Mere relationship of eye-witnesses with the deceased alone is not enough to discard testimony of the complainant and his witnesses. In matters of capital punishment, the accused would not stand absolved by making a mere allegation of dispute/enmity but would require to bring on record evidence that there had been such a dispute/enmity which could be believed to have motivated the "natural witnesses" in involving innocent at the cost of escape of "real culprits". No any tangible substance has been brought on record by the appellant to justify his false implication in this case at the hands of complainant party on account of any previous enmity and the documents produced by him in his support is also belied by his own DW Mst.Hotri (maternal aunt of accused) who in her cross-examination admitted that at the time of incident she had not gone to P.S for registration of FIR against complainant Sikandar Ali and that she had not gone to the Court for getting the order of registration of FIR after the incident. If such wavering statement of the defence witness produced by the appellant in his defence is believed to be true then it obviously has led the defence plea of the appellant at stake. In case of Zulfiqar Ahmed and another v. State (2011 SCMR 492), the Supreme Court of Pakistan has held as under:-

2025 M L D 488

[Sindh]

Before Shamsuddin Abbasi, J

Rizwan Abdul Kalam and 2 others---Appellants

Versus

The State---Respondent

Criminal Appeal No. 124 of 2020, decided on 18th September, 2024.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Extra-judicial confession---Weak type of evidence---Accused were charged for committing murder of sister of complainant by stabbing her---Appellants had been shown arrested on 09.12.2017 on the pointation of complainant and during interrogation they confessed the commission of offence before police in presence of complainant and his friend on 14.12.2017---Question arose as to why the appellants made admission when there was no palpable reason for them to make an extra-judicial confession before police in presence of complainant and his friend, whose conduct was also a relevant factor for determining credibility of extra-judicial confession allegedly made by the appellants---Complainant was not an eye-witness of the incident but he nominated the appellants as killers of his sister in his FIR recorded on 09.12.2017, whereas as per prosecution case itself the appellants admitted the commission of offence before him on 14.12.2017---Question arose as to from which source complainant came to know that his sister was murdered by her in-laws and no explanation to that extent had been brought on record---Extra-judicial confession is a weak evidence---When an accused makes an admission before police about his guilt then it is obligatory upon the Police Officer before whom he made such a confession to produce him before a competent Court of law for recording his statement under S.164, Cr.P.C., which had not been done, therefore, the alleged confessions of appellants would amount to confessions before police---Record was silent as to what were the circumstances which made the appellants confess---Appeal against conviction was allowed, in circumstances.

Ahmad v. The Crown PLD 1951 FC 107; Abdul Latif v. Crown PLD 1952 FC 113 and Sajid Mumtaz and others v. Basharat and others 2006 SCMR 231 rel.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Unnatural conduct of complainant---Accused were charged for committing murder of sister of complainant by stabbing her---In the case in hand, the conduct of the complainant seemed to be doubtful because he had implicated four persons of a family claiming them to be the killers of his sister---Complainant was not an eye-witness of the incident---Specific plea taken by the appellants in their defence was that it was a love marriage and complainant was unhappy of the marriage of his sister with one of the accused persons and he also did not attend the marriage ceremony of his sister, therefore, he had falsely implicated them in the commission of murder of his sister owing to previous grudge---Record was also suggestive of the fact that the person before whom the alleged confession was made by the appellants was a friend of complainant, hence there was every likelihood that being a friend he had supported the complainant and deposed falsely against appellants---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Recovery of weapon of offence on the pointation of accused doubtful---Accused were charged for committing murder of sister of complainant by stabbing her---Prosecution heavily relied on the recoveries of crime weapons allegedly recovered on the pointation of accused persons and claimed that after confession as to his involvement in the commission of crime, one of the appellants on the same day (14.12.2017) voluntarily led the police to the place of pointation and got recovered a knife, used in the commission of offence, lying under a wooden foundation of fridge---On the other hand, the complainant, who was one of the mashirs of recovery of knife, in his deposition had stated that one of the appellants led the police party towards his house and got recovered a knife from beneath the fridge---Complainant had not uttered a single word about the wooden foundation under the fridge---Complainant had not disclosed the specific date and time when appellant produced the knife for police on his pointation---Statement of complainant was belied by his friend, who while appearing before the trial Court had deposed that during interrogation appellant disclosed that he had thrown churri under the refrigerator and voluntarily led the police to his house where Investigating Officer obtained key from the owner of the house and opened the house and thereafter appellant took them towards the refrigerator and got recovered a churri lying under the chowky whereas the complainant did not disclose any such detail---Record was suggestive of the fact that police arrested appellants on 09.12.2017 from outside their house and during interrogation at spot, one of the appellants disclosed about the knife, used in the commission of offence, hidden alongside the gate of his house and got it recovered on his pointation---On the other hand, the complainant, who was one of the mashirs of memo of recovery, deposed that after his arrest said appellant led the police party inside his house and got recovered a knife whereas a witness in his deposition had stated that police recovered the knife from behind the main gate of the house on the pointation of said appellant---Complainant and mashirs in their respective depositions had furnished squarely different versions and contradicted each other as to the exact place of recovery which created serious doubts about the arrest of appellants and recovery of alleged knives on their pointation---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 109 & 34---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Statement of accused recorded under S.342, Cr.P.C---Scope---Accused were charged for committing murder of sister of complainant by stabbing her---Record was suggestive of the fact that the alleged recovered knives were not confronted to appellants at the time of recording their statements under S.342, Cr.P.C.---Examination of an accused under S.342, Cr.P.C. is not a formality but a legal requirement whose primary purpose is to apprise him of all the incriminating material that has been brought against him during the trial and providing him an opportunity to explain his position with respect to it---If a piece of evidence is not put to an accused while recording his statement under S.342, Cr.P.C., it could not be used against him while awarding conviction---Appeal against conviction was allowed, in circumstances.

Muhammad Shah v. The State 2010 SCMR 1009; Muhammad Saddique v. The State 2018 SCMR 71 and Imtiaz alias Taj v. The State and others 2018 SCMR 344 rel.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Delay in sending the recovered weapon of offence to laboratory---Consequential---Accused were charged for committing murder of sister of complainant by stabbing her---Mere recovery of crime knives in absence of any direct or any other incriminating evidence could not be made basis for convicting an accused in a crime of capital punishment in view of admitted delay in sending the alleged recovered churri (knife) to the office of Forensic Division and that too without furnishing any plausible explanation---There was no evidence or any other material to substantiate that finger prints on knife were of appellant more particularly when the incident was alleged to be based on suspicion and previous grudge---Even otherwise, the recoveries of incriminating articles viz crime weapons and blood-stained articles as well as availability of finger print were always considered to be corroborative pieces of evidence and such kind of evidence by itself was not sufficient to bring home the charges against an accused especially when no direct evidence had been brought on record and the other material put-forward by the prosecution in respect of guilt of the appellants had been disbelieved---Appeal against conviction was allowed, in circumstances.

Imran Ashraf and 7 others v. The State 2001 SCMR 424 and Dr. Israr-ul-Haq v. Muhammad Fayyaz and another 2007 SCMR 1427 rel.

(f) Criminal trial---

----Medical evidence---Scope---When no direct evidence has been brought on record and the circumstantial evidence has already been disbelieved, conviction cannot be based solely on medical evidence---Medical evidence is not a corroborative piece of evidence rather confirmatory in nature, which can be used to confirm or contradict the medical evidence with other pieces of evidence---Medical evidence cannot be considered as a corroborative piece of evidence connecting an accused with the crime, but only confirms the location, kind of weapon used in the commission of offence and timing of the injuries inflicted.

Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103; Muhammad Mansha v. The State 2018 SCMR 772 and Hashim Qasim and another v. The State 2017 SCMR 986 rel.

(g) Criminal trial---

----Benefit of doubt---Principle---It is better that ten guilty persons be acquitted rather than one innocent person be convicted.

Shahzaib Akhtar Khan and Bilal Khawaja for Appellants Nos. 1 and 2.

Muhammad Altaf for Respondent No. 3.

Ahsan Ali Siyal for the Complainant.

Khadim Hussain Khooharo, Additional Prosecutor General (Sindh) for the State.

Date of hearing: 29th August, 2024.

Judgment

Shamsuddin Abbasi, J.---Rizwan Abdul Kalam, Imran Abdul Kalam and Kamran Abdul Kalam, appellants, have challenged the validity of the judgment dated 10.01.2020, penned down by the learned Additional Sessions Judge-VII [Model Criminal Trial Court-II (MCTC-II), Karachi Central] in Sessions Case No.36 of 2018 (FIR No.171 of 2017) registered at Police Station Hyderi Market, District Central; Karachi, for offences under Sections 302, 109 and 34, P.P.C., through which they were convicted and sentenced and sentenced as under:-

"(a) Accused Rizwan son of Abdul Kalam is sentenced under S. 302(b), P.P.C. to suffer "imprisonment for life" with direction to pay Rs,1,00,000/- as compensation to the legal heirs of the deceased. In case of default, he shall have to undergo 01 year SI.

(b) Accused Kamran son of Abdul Kalam is sentenced under S. 302(b), P.P.C. to suffer "Imprisonment for life" with direction to pay Rs.1,00,000/- as compensation to the legal heirs of the deceased. In case of default, he shall have to undergo 01 year SI.

(c) Accused Imran son of Abdul Kalam is sentenced under S. 302(b), P.P.C. to suffer "Imprisonment for life" with direction to pay Rs. 1,00,000/- as compensation to the legal heirs of the deceased. In case of default, he shall have to undergo 01 year SI.

(d) The benefit of Section 382-B, Cr.P.C is extended to the accused.

(e) The certified true copy of the judgment is supplied to above named accused free of cost on receipt".

The learned trial Court, however, acquitted co-accused Abdul Kalam from the charge of instigation extending him the benefit of doubt through same judgment.

1. First Information Report in this case has been lodged on 09.12.2017 at 3:10 pm at P.S. Hyderi Market, Karachi, on the basis of statement under Section 154, Cr.P.C. of Muhammad Binyamin, recorded at Jinnah Hospital, whereas the incident is shown to have taken place on 08.12.2027 at 8:00 pm. Complainant Muhammad Binyamin has stated that his sister Aasia was married to Rizwan Abdul Kalam (appellant No.1) about 2 1/2 years ago and out of the said wedlock a baby namely, Anabia was born, who is now aged about 1 1/2 years. About 6/7 months ago his sister made a complaint of a quarrel with her husband and other in-law, but on the intervention of elders the matter was resolved. On 08.12.2017 he received a phone call from Abbasi Shaheed Hospital that his sister has been brought at hospital in critical injured condition having pregnancy of about 8 1/2 months so he contacted Rizwan (husband of Aasia) on his phone, who firstly informed him (complainant) that Aasia is at: home and he (Rizwan) is outside the house and when complainant disclosed about receiving of call from Abbasi Shaheed Hospital then Rizwan disclosed that they are in Taruma Centre and shifting Aasia to another hospital and soon thereafter disconnected the phone, which created doubt in his mind so he contacted Imran, brother of Rizwan, who disclosed that he is on the way to M.S. Hospital, Urdu Bazar, and disconnected the phone by saying that he would inform the situation after reaching the hospital and after some time complainant received a phone call from Imran, who informed the complainant that his brother Kamran caused injuries to Aasia stabbing her blows with churrie and she expired at hospital during treatment. The complainant immediately went to Abbasi Shaheed Hospital in order to enquire from the nurse as to what happened but she was not available at hospital so he met with MLO, who disclosed that due to non- availability of lady MLO they referred the dead body to Jinnah Hospital and on reaching there he came to know that dead body of his sister was shifted to Cold storage, Chippa Centre, Saddar, therefore, he went there and saw the dead body of his sister and brought back her at Jinnah Hospital, where post-mortem was conducted. Police also reached at Jinnah Hospital and recorded his statement under Section 154, Cr.P.C., which was later on incorporated in FIR Book, wherein he disclosed that Rizwan and Imran at the instigation of their brother Kamran and father Abdul Kalam committed murder of his sister Aasia stabbing her blows with churries and she succumbed to her injuries and died at hospital during treatment.

2. Pursuant to the registration of FIR, the investigation was followed and in due course the challan was submitted before the Court of competent jurisdiction under the above referred Sections, whereby the appellants and co-accused were sent-up to face the trial.

3. A charge in respect of offences under Sections 302, 109 and 34, P.P.C. was framed against appellants and co-accused Abdul Kalam. All of them pleaded nit guilty to the charged offence and claimed to be tried.

4. At trial, the prosecution has examined as many as nine witnesses. The gist of evidence, adduced by the prosecution in support of its case, is as under:-

5. Muhammad Binyamin (complainant) appeared as witness No.1 Ex.4, Dr. Muhammad Saleem as witness No.2 Ex.5, WMLO Noor un Nisa as witness No.3 Ex.7, Muhammad Aslam as witness No.4 Ex.8, Muhammad Sohail Azam as witness No.5 Ex.10, SIP Muhammad Shakeel Anwar Khan as witness No.6 Ex.11, SIP Muhammad Rafaqat Butt as witness No.7 Ex.12, SIP Manzoor Ali as witness No.8 Ex.13 and SIP Rasheed Ahmed (Investigating Officer) as witness No.9 Ex.14. All of them have exhibited certain documents in their evidence and also subjected to cross-examination by the defence. Thereafter, the prosecution closed its side vide statement Ex.15.

6. Appellants and co-accused Abdul Kalam were examined under Section 342, Cr.P.C. at Ex.16 to Ex.19. They have denied the allegations imputed upon them by the prosecution, professed their innocence and stated their false implication by the complainant due to previous grudge. They opted not to make a statement on Oath under Section 340(2), Cr.P.C. but examined Aziz ur Rehman and Syed Naeem Abbas as their defence witnesses.

7. Upon completion of the trial, the learned trial Court acquitted co-accused Abdul Kalam but found the appellants guilty of the offences charged with and, thus, convicted and sentenced them as detailed in para-1 (supra), which necessitated the filing of the listed appeal.

8. The learned counsel appearing on behalf of appellants Rizwan and Imran has contended that they are innocent and have falsely been implicated in this case by the complainant on account of previous grudge as it was a love marriage and the complainant was not happy with the marriage of his sister Aasia (deceased) with appellant Rizwan; that deceased might be done to death by accused Kamran, who is a psycho patient and found present near the place where deceased was lying injured; that the complainant due to his previous grudge took advantage of an unseen incident and falsely roped the entire family in the commission of murder of his sister; that FIR has been lodged after more than 19 hours of the incident without furnishing any plausible explanation, hence the possibility of consultations and due deliberations particularly in the background of the previous grudge cannot be ruled out; that the incident is unseen and none of the witnesses including complainant have stated that they have seen the appellants committing murder of the deceased; that the witnesses examined by the prosecution are interested and inimical to the appellants as such they have falsely implicated them in an unseen incident on account of previous grudge; that they were inconsistent with each other rather contradicted on crucial points benefit whereof must go to the appellants; that nothing incriminating has been recovered from their possession and the alleged recovered "churries" have been foisted upon them; that the medical evidence is not in line with the statement of complainant and mashirs of inspection of dead body; that no iota of evidence has been brought on record to substantiate that the deceased was done to death by the appellants; that the Investigating Officer has conducted dishonest investigation and failed to dig out the truth; that no independent witness has been produced by the prosecution to corroborate the evidence of the interested witnesses, who being inimical to the appellants have falsely deposed against them; that the impugned judgment is the result of misreading and non-reading of evidence and without application of a judicial mind, hence the conviction and sentence awarded to the appellants, based on such findings, are not sustainable in law and liable to be set-aside and the appellants deserve to be acquitted of the charge and prayed accordingly.

9. The learned counsel for appellant Kamran has argued that he is a psycho patient and his disease has been diagnosed as "schizophrenia"; that the appellant in his statement under Section 342, Cr.P.C. though admitted the commission of offence but denied the same while framing the charge, hence in such eventuality his admission before Court is of no legal effect and he cannot be convicted on sole basis of his admission; that the incident is unseen and none including the co-accused have seen him causing injuries to deceased with churrie; that only presence of appellant at the place is not sufficient to base conviction; that no churrie has been recovered either from his possession or pointation with whom he allegedly caused injuries to deceased; that the learned trial Court failed to appreciate the evidence adduced by the appellant in his defence and convicted him only on his admission, that no iota of evidence has been brought on record to substantiate that the deceased was done to death by the appellant; that the impugned judgment is the result of misreading and non-reading of evidence and without application of a judicial mind, hence the conviction and sentence awarded to the appellant, based on such findings, is not sustainable in law and liable to be set-aside and the appellant deserves to be acquitted of he charge and prayed accordingly.

10. In contra, the learned counsel for the complainant while controverting the submissions of learned counsel for the appellants has submitted that the delay in lodgment of FIR is of no importance in view of the peculiar facts and circumstance of the case; that the witnesses have supported the case of the prosecution and remained consistent on each and every material point; that they were subjected to lengthy cross-examination by the defence but nothing adverse to the prosecution story has been extracted which can provide any help to the appellants; that the prosecution has brought on record medical as well as circumstantial evidence in shape of recoveries of crime weapons and the same has rightly been relied upon; that the prosecution has successfully proved its case against the appellants beyond shadow of any reasonable doubt, thus, the appeal filed by the appellants deserves to be dismissed and the conviction and sentences awarded to the appellants are liable to be maintained.

11. The learned APG has adopted the same arguments as advanced by the learned counsel for the complainant and submitted that the impugned judgment is based on fair evaluation of evidence and documents brought on record and the appellants have failed to shatter the evidence adduced by the prosecution during cross-examination and they have also not placed on record any evidence or material to substantiate their case and disprove the case of the prosecution and the plea taken in defence that deceased was done to death Kamran is after thought, hence the impugned judgment calls for no interference.

12. Heard learned counsel for the respective parties at length, given my anxious consideration to their submissions and also scanned the record carefully with their able assistance.

13. The prosecution machinery came into motion when complainant Muhammad Binyamin reported an incident of commission of murder of his sister Mst. Aasia alleged to have taken place in House No.A-231, Block-H, Street No.10, Chaudhary Rehmat Ali Road, North Nazimabad, Karachi, nominating four persons of a family i.e. father and his three sons as killer. Admittedly, the incident reported to police is an unseen occurrence and none has come forward claiming to be an eye-witness of the incident and such an FIR has been lodged after 19 hours of the incident and that too without furnishing any plausible explanation. No direct evidence has been brought on record to substantiate the involvement of appellants in the commission of offence and the only piece of evidence that has come on record is the circumstantial evidence in shape of recoveries of crime weapons viz churries on the pointation of appellants Rizwan and Imran and other incriminating articles viz dupatta, towel, bed sheets etc., stained with blood, seized during the course of site inspection as well as the confession of appellant allegedly made by them before police in presence of complainant Muhammad Binyamin and PW.4 Muhammad Aslam.

14. It is well settled that a crime cannot be proved by an extra-judicial confession made by an accused before police and the witnesses. The verdict of guilty and a subsequent conviction cannot be sustained upon an extra-judiciai confession only. The rule is that an extra-judicial confession of an accused must be corroborated by independent proof of the crime. An extra-judicial confession of an accused, if voluntary, can be relied upon along with other evidence in convicting an accused but subject to its prove like any other evidence. The value of a confession depends upon the veracity of the witnesses before whom it is made. In the case in hand, it is observed that appellants have been shown arrested on 09.12.2017 on the pointation of complainant and during interrogation they confessed the commission of offence before police in presence of complainant and PW.4 Muhammad Aslam, who admittedly is a friend of complainant, on 14.12.2017. The question arises why the appellants made admission when there was no palpable reason for them to make an extra-judicial confession before police in presence of complainant and PW.4 Muhammad Aslam, whose conduct is also a relevant factor for determining credibility of extra-judicial confession allegedly made by the appellants. Surprising to note that the complainant is not an eye-witness of the incident despite he nominated the appellants as killer of his sister in his FIR recorded on 09.12.2017 whereas as per prosecution case itself the appellants admitted the commission of offence before him on 14.12.2017. The question arises as to from which source he came to know that his sister was murdered by her in-laws and no explanation to that extent has been brought on record. No doubt, an extra-judicial confession is a weak evidence and it has to be examined by the Court with deep care and caution because it can be procured easily. The Hon'ble Federal Court in the case of Ahmad v. The Crown (PLD 1951 FC 107) and Abdul Latif v. Crown (PLD 1952 FC 113), which was subsequently affirmed by the Hon'ble Supreme Court in Sajid Mumtaz and others v. Basharat and others (2006 SCMR 231) holding as under:-

"22. As observed by the Federal Court, we would reiterate especially referring to this part of the country, that extra-judicial confessions have almost become a norm when the prosecution cannot otherwise succeed. Rather, it may be observed with concern as well as with regret that when the Investigating Officer fails to properly investigate the case, he resorts to padding and concoctions like extra-judicial confessions. Such confessions by now, have become the signs of incompetent investigation. A judicial mind, before relying upon such weak type of evidence, capable of being effortlessly procured must ask a few questions like why the accused should at all confess, what is the time lag between the occurrence and the confession, whether the accused had been fully trapped during investigation before making the confession, what is the nature and gravity of the offence involved, what is the relationship or friendship of the witnesses with the maker of confession and what, above all is the position or authority held by the witness."

1. In the case in hand, the conduct of the complainant seems to be doubtful because he has implicated four persons of a family claiming them to be the killer of his sister before making extra-judicial confession by the appellants in custody of police in his presence more particularly when he is not an eye-witness of the incident. This finds support the specific plea taken by the appellants in their defence that it was a love marriage and complainant was unhappy of the marriage of his sister Aasia with Rizwan and he also not attended the marriage ceremony of his sister, therefore, he has falsely implicated them in the commission of murder of his sister owing to previous grudge. The record is also suggestive of the fact that PW.4 Muhammad Aslam before whom the alleged confession was made by the appellants is a friend of complainant, hence there is every likelihood that being a friend he has supported the complainant and deposed falsely against appellants. It is well settled that when an accused made an admission before police about his guilt then it is obligatory upon the police officer before whom he made such a confession to produce him before a competent Court of law for recording his statement under Section 164, Cr.P.C. which has not been done, therefore, the alleged confessions of appellants before police would amount to confession before police. The entire record is silent as to what were the circumstances which made the appellants to confess. If for the sake of arguments, it is believed that such confessions were actually made by the appellants even then same being inadmissible in evidence in terms of Articles 38 and 39 of Qanun-e-Shahadat Order, 1984 could not be used against them in a case providing capital punishment.

2. The prosecution heavily relied on the recoveries of crime weapons allegedly recovered on the pointation of Rizwan and Imran and claimed that after confession as to his involvement in the commission of crime, appellant Rizwan on the same day (14.12.2017) voluntarily led the police to the place of pointation and got recovered a knife, used in the commission of offence, lying under a wooden foundation of fridge. On the hand, the complainant, who is one of the mashirs of recovery of knife, in his deposition has stated that Rizwan led the police party towards his house and got recovered a knife from beneath the fridge. He has not uttered a single word as to wooden foundation under the fridge. He has also not disclosed the specific date and time when Rizwan produced knife to police on his pointation. This statement of complainant is belied by PW.5 Muhammad Aslam, who while appearing before the learned trial Court has deposed that during interrogation Rizwan disclosed that he had thrown churrie under the refrigerator and voluntarily led the police to his house where SIP obtained key from the owner of the house and opened the house and thereafter Rizwan took them towards the Refrigerator and got recovered a churrie lying under the chowky whereas the complainant did not disclose any detail as to obtaining key from the owner of the house and only deposed that Rizwan voluntarily led the police to his house and produced knife from beneath the fridge. The record is also suggestive of the fact that police arrested appellants on 09.12.2017 from outside their house and during interrogation at spot, Imran disclosed about the knife, used in the commission of offence, hidden alongside the gate of his house and got it recovered on his pointation. On the other hand, the complainant, who is one of the mashirs of memo. of recovery, while appearing before the learned trial Court has deposed that after his arrest Imran led the police party inside his house and got recovered a knife whereas PW.5 Muhammad Sohail Azam in his deposition has stated that police recovered the knife from behind the main gate of the house on the pointation of Imran. The complainant and mashirs in their respective depositions have furnished squarely different versions and contradicted each other as to the exact place of recovery and which one is true would be best known to them, however, it create serious doubts about the arrest of Rizwan and Imran and recovery of alleged knives on their pointation. The record is also suggestive of the fact that the alleged recovered knives/churrie were not confronted to Rizwan and Imran at the time of recording their statements under Section 342, Cr.P.C. It is trite that examination of an accused under section 342, Cr.P.C. is not a formality but a legal requirement whose primary purpose is to apprise him of all the incriminating material that has been brought against him during the trial and provide him an opportunity to explain his position with respect to it. In Muhammad Shah v. The State (2010 SCMR 1009) the Hon'ble Supreme Court held that if a piece of evidence is not put to an accused while recording his statement under Section 342, Cr.P.C. it cannot be used against him while awarding conviction. This view is also reiterated in the cases of Muhammad Saddique v. The State (2018 SCMR 71) and Imtiaz alias Taj v. The State and others (2018 SCMR 344). Mere recovery of crime churries in absence of any direct or any other incriminating evidence except that churrie allegedly recovered on the pointation of Rizwan was sent to Forensic Division and his finger prints were matched cannot be made basis for convicting an accused in a crime of capital punishment in view of admitted delay in sending the alleged recovered churrie to the office of Forensic: Division and that too without furnishing any plausible explanation as well as in absence of any evidence or any other material to substantiate that such finger prints were of Rizwan more particularly when such an incident alleged to be based on suspicion and previous grudge. Even otherwise, the recoveries of incriminating articles viz crime weapons and blood-stained articles as well as availability of finger print are always considered to be a corroborative piece of evidence and such kind of evidence by itself is not sufficient to bring home the charges against an accused especially when no direct evidence has been brought on record and the other material put-forward by the prosecution in respect of guilt of the appellants has been disbelieved. Reference may well be made to the cases of Imran Ashraf and 7 others v. The State (2001 SCMR 424) and Dr. Israr-ul-Haq v. Muhammad Fayyaz and another (2007 SCMR 1427).

3. The learned trial Court while awarding conviction to the appellants has also relied upon the evidence adduced by Medical Officer PW.4 Noor un Nisa, who conducted postmortem examination of the deceased. In the peculiar facts and circumstances of the case, when no direct evidence has been brought on record and the circumstantial evidence has already been disbelieved, the conviction cannot be based solely on medical evidence. The medical evidence is not a corroborative piece of evidence rather confirmatory in nature, which can be used to confirm or contradict the medical evidence with the other piece of evidence. It cannot be considered as a corroborative piece of evidence connecting an accused with the crime, but only confirms the location, kind of weapon used in the commission of offence and timing of the injuries inflicted. Reliance in this behalf may well be made to the case of Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103), wherein the Hon'ble Supreme Court held as follows:-

"It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the crime."

The above view has been reaffirmed in the case of Muhammad Mansha v. The State (2018 SCMR 772) and Hashim Qasim and another v. The State (2017 SCMR 986).

1. In like cases, the evidence produced by the prosecution should be so strong or solid that it should start right from the toe of the deceased on one hand and the same should encircle a dense grip around the neck of the accused on the other hand and if the chain is not complete or any doubt which occurred in the prosecution's case that is sufficient to demolish the structure of evidence the benefit thereof must go to the accused especially when the same has been built up on the basis of feeble or shaky evidence.

2. The appellants, on the other hand, have specifically denied the prosecution case and pleaded their innocence in their statements under Section 342, Cr.P.C. They have not only involved Kamran in the commission of murder of Mst. Aasia stabbing her blows with churrie, but also produced his medical history through DW.2 Syed Naeem Abbas, Counselor of Psychiatrie unit of Wasti Psychiatric Hospital. They have also sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence in clear cut manner and remained consistent on their plea of defence. Here it would be conducive to reproduce the relevant excerpts of their statements as follows:-

Appellant Imran:- On the day of incident I was residing along with my brothers Rizwan and Kamran (psycho patient), my father my mother, my sister, my deceased sister in law and my niece at the place of incident. I was present along with my father and baby Anabia at the time of occurrence. At about 08:15/08:30 am we heard some cries and we all rushed to the street facing gallery of our house, but there was nothing. Then, we again heard cries and we went at the end of our house where kitchen is situated and saw that accused Kamran had already injured deceased Aasia and he said it has happened because she refused to give him food and used abusive language, due to which, he injured her and said to me to call police. Then, I and my father tied up my brother Kamran with the rope and I called my friend Aziz ur Rehman who came there within 5/10 minutes. I and Aziz ur Rehman took the deceased at Saifi Hospital. After giving first aid treatment because of the nature of the case, doctors of Saifi Hospital told us to go to Government Hospital at Abbasi Shaheed Hospital. During the treatment in Saifi Hospital my brother Rizwan who was driving Careem car came there on my call at about 08:40 pm. I, Rizwan and my friend Aziz ur Rehman took deceased Aasia to Abbasi Shaheed Hospital where the doctors advised us to arrange the blood, on which I and my friend Aziz ur Rehman firstly tried to arrange blood from Hussaini Blood Bank and KKF Blood Bank near Abbasi Shaheed Hospital but the same was not available in the both blood banks and they referred to Hussain Blood Bank near Mumtaz Hospital, situated at North Nazimabad. At about 10:30 pm at our turn they told us that the blood O, Positive can be arranged in one hour after matching the same. At about 11:30 pm we received two bottles of blood and rushed towards MS Hospital where Aasia was referred for Ventilator as per information received from my brother Rizwan who was all the time trying to maximum medical treatment and facilitates from the respective hospitals. We reached at MS Hospital at 11:45 am where we came to know that my brother's wife had expired at 11:40 pm".

1. Appellant Rizwan and co-accused Abdul Kalam (acquitted by the learned trial Court), have taken the same plea in their statements under Section 342, Cr.P.C. and deposed on the same line as that of Imran. They have also implicated Kamran in the commission of murder of Mst. Aasia and categorically stated that Kamran is suffering from mental disorder and he is diagnosed as to be a patient of "schizophrenia". They have also been supported by DW.1 Aziz ur Rehman (Ex.20), who while appearing before the learned trial Court has narrated the same story and deposed on the same line as that of appellants. Here question arises why a father and two brothers would implicate his real son and their real brother in an offence of providing capital punishment more particularly when such an incident was not witnessed by anyone except them. It also does not appeal to a prudent mind why a husband would commit murder of his wife having 8 1/2 months baby in her womb and had already a daughter, aged about one year from her. The record is also suggestive of the fact that the plea taken by the appellants and co-accused in their statements that he was Kamran who caused injuries to his "Bhabhi" Asia stabbing churrie blows has also been supported by Kamran in his statement under Section 342, Cr.P.C. For the sake of convenience relevant excerpt is reproduced below:-

"On the day of incident at about 07:00 pm I was in my room struggling with my psychiatrics condition of schizophrenia. I had severe hallucinations of threats to myself and fantasy of being Injured or harmed by anyone amid the family members. To overcome this condition I usually eat a lot to divert my focus. At around 08:00 pm I went into the kitchen looking for something to eat and thought that the dinner might be ready but when I entered the kitchen I saw the deceased Aasia still preparing the dinner which was not cooked yet. Experiencing this, my hallucinations and fantasy of threats got extreme, I lost my mind, lost control of my thoughts, got into a server argument with deceased Aasia and then I took the kitchen knife, stabbed her multiple times resulting in her severe injuries. During this incident I did not had the slightest hint, what I was doing, why I was doing, with whom I did not and the consequences of my act. When deceased Aasia started shouting in order to save herself the rest of the family members rushed into the kitchen, my father Abdul Kalam got hold of me, grabbed my left hand with which I was holding the kitchen knife/churri, while Imran tried to putt me away from deceased Aasia. The first thing my family members did was that they tied me up and tried to stop the intense bleeding of Aasia. Meanwhile, I was all tied up and was unable to move, not in my senses, not thinking about what I did, still under the severe hallucinations caused by my psychiatric condition. I did not know about what was going on around me and what havoc I had created. All around 11:00 pm my father Abdul Kalam called a police helpline and I was handed over to the police at the very same night of the incident. I have history of medical treatment for schizophrenia and because of my psychiatric condition, I also have a history of running away multiple times from my home to the hallucinations and the threats caused to me because of my mental condition.

2025 M L D 510

[Sindh]

Before Mohammad Karim Khan Agha, J

Muhammad Kamran---Appellant

Versus

The State---Respondent

Criminal Jail Appeal No. 453 of 2020, decided on 24th October, 2024.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd---Appreciation of evidence---Dying declaration doubtful---Accused was charged for committing murder of the son of complainant by inflicting knife blows---Incident occurred on 10.05.2019 at about 11.30 am in broad daylight when the deceased was found seriously injured by his co-workers---Deceased however was conscious throughout but he did not personally tell either of those witnesses that the appellant had stabbed him---Deceased remained conscious until his death a number of hours later yet did not reveal to the police, nurses or doctors that the appellant had stabbed him---Instead after being taken from the place of occurrence to local hospital and then referred to Civil Hospital, the deceased according to the evidence of the complainant gave his dying declaration to the complainant alone in the ambulance on the way to the Civil Hospital---Once at the Civil Hospital, deceased did not tell any Police Officer, Medical Officer or any other person that the appellant had stabbed him and died a few hours after reaching the Civil Hospital---Question was why would an injured but conscious man not immediately tell the persons who discovered him at the place of occurrence, the police who took him from the place of occurrence to the local hospital and the doctors at the hospital the identity of who had stabbed him---This would have been the key question on all those people's mind especially the police yet the deceased did not mention to any of them, even after he was transferred to Civil Hospital, that the appellant had stabbed him but allegedly only told his father alone in the ambulance en-route to Civil Hospital---Such conduct did not appeal to logic, reason or common sense---Most significantly, the complainant lodged his FIR about 12 hours after his son/ deceased had given him his dying declaration yet there was no mention in the FIR of his son's/ deceased's dying declaration---Appeal against conviction was allowed, in circumstances.

Basharat Ali v. Muhammad Safdar 2017 SCMR 1601; Muhammad Asif v. The State 2017 SCMR 486; Imtiaz alias Taj v. The State 2018 SCMR 344; Tariq Pervez v. The State 1995 SCMR 1345; Fayyaz Ahmad v. The State 2017 SCMR 2026; Muhammad Abid v. The State PLD 2018 SC 813; Muhammad Ashraf Khan Tareen v. The State 1996 SCMR 1747; Abdul Khaliq v. The State 2021 SCMR 325; Majeed v. The State 2010 SCMR 55; Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872 and Muhammad Ilyas v. The State 2011 SCMR 460 ref.

Majeed v. State 2010 SCMR 55 rel.

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

----S. 342---Examination of accused---Scope---All the evidence must be put to the accused at the time of recording his S.342, Cr.P.C statement---If any evidence is not put to accused and he has no chance to explain the same, it cannot be used to convict the accused and must be discarded.

Mst. Zahida Bibi v. The State PLD 2006 SC 255 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Last seen evidence---Unnatural conduct of accused---Accused were charged for committing murder of the son of complainant by inflicting knife blows---There was no last saw evidence, because no witness actually seen the deceased with the appellant before the incident---Instead the witnesses said that they saw the appellant running away after they were shown where the deceased was lying injured---It was not unusual for the appellant to be in the vicinity as he worked for the same bus company as the deceased and the witnesses who found the injured deceased which was near their place of work---So simply concluding that because the deceased was seen running away, he committed the crime was not sustainable in law---Witnesses who saw the appellant running away did not say how far away he was from them and whether they saw him from the back or the front, so there might even be some doubt about the identity of the appellant---Furthermore, according to the evidence the witnesses found the injured deceased after the body was pointed out to them after the deceased had been stabbed and was lying injured so it was unclear how long the witnesses were shown the injured body after the deceased was stabbed---Thus, it did not appeal to logic, commonsense and reason that if the appellant had stabbed the deceased and seriously injured him that he would just hang around the crime scene---Appellant would have made his escape good before the body was found---Appeal against conviction was allowed, in circumstances.

Azeem Khan v. Mujahid Khan 2016 SCMR 274; Fayyaz Ahmed v. The State 2017 SCMR 2026 and Muhammed Abid v. The State PLD 2018 SC 813 rel.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd---Appreciation of evidence---Delay of 4/5 days in recording the statements of witnesses---Effect---Accused were charged for committing murder of the son of complainant by inflicting knife blows---None of the witnesses who gave evidence in respect of the last seen evidence were named in the FIR and they all gave their (S.161 Cr.P.C) statements 4 to 5 days after the incident---Said fact brought the evidence of said witnesses into doubt due to such long delay in recording their so-called eye-witness (S.161 Cr.P.C) statements---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence doubtful---Accused were charged for committing murder of the son of complainant by inflicting knife blows---Recovery of the murder weapon (knife) was in doubt---Whilst some witnesses stated in their evidence that knife was recovered at the place of occurrence, other witnesses (police) stated in their evidence that immediately after they arrested the appellant on the same day he led the police on his pointation to a hotel where he had hidden the murder weapon from where it was recovered which appeared to be a material contradiction when placed in juxtaposition with the other evidence on record---Appeal against conviction was allowed, in circumstances.

Iftikhar Ahmed Shah, Raja Zeeshan and Shahmeer Memon for Appellant.

Muhammad Iqbal Awan, Addl. Prosecutor General, Sindh and Mumtaz Ali Shah, Assistant Prosecutor General Sindh for the State.

Date of hearing: 17th October, 2024.

Judgment

MOhammad Karim Khan Agha, J.---Appellant Muhammad Kamran was tried in the Model Criminal Trial Court/Additional Sessions Judge-II Malir Karachi in Sessions Case Nos. 1218 of 2019 in respect of Crime No. 206 of 2019 registered under Section 302, P.P.C at P.S. Steel Town, Karachi and after a full-fledged trial vide judgment dated 24.02.2020 he was convicted under section 302(b), P.P.C. and sentenced to suffer imprisonment for life. He was also directed to pay fine of Rs. 10,00,000/- to the legal heirs of the deceased under Section 544-A, Cr.P.C and in case of default in payment he shall further undergo simple imprisonment of six months. Benefit of section 382-B, Cr.P.C. was extended to the appellant.

1. The brief facts of the case, as per FIR are that the complainant is resident of Mureed Gabol Goth Pipri Bin Qasim Malir, Karachi. On 10.05.2019 the son of the complainant namely Ejaz Ali who was working as mechanic near Shahbaz Petrol Pump and due to this accused Kamran and his companion used to issue threats to his son for closing the work of mechanic else he would be murdered. On same day, at about 1130 hours the complainant received a call from the cell phone of his son namely Ejaz Ali bearing No. 0303-2015307 and the person disclosed his name as Muhammad Alam who told that the son of the complainant was assaulted by knife intention to commit murder by one Kamran and his companion Aslam and Hafeez and they are shifting him to Al-Khidmat Hospital for treatment and requested him to come there urgently. When, the complainant reached to Al-Khidmat Hospital, doctor gave first aid and suggested to shift the patient at Jinnah Hospital Karachi (JPMC), where the complainant himself through ambulance shifted his son to Jinnah Hospital but the injured was expired due to such injuries, hence the instant FIR was registered.

2. After completion of investigation I.O. submitted charge sheet against the accused persons to which the appellant plead not guilty and claimed trial.

3. The prosecution in order to prove its case examined 9 witnesses and exhibited various documents and other items. The statement of accused was recorded under Section 342, Cr.P.C in which he denied all the allegations levelled against him. He, however, did not give evidence on oath or call any DW in support of his defence case.

4. After hearing the parties and appreciating the evidence on record the trial court convicted the appellant and sentenced him as stated earlier in this judgment and hence, the appellant has filed this appeal against his conviction. The co-accused was acquitted based on a lack of evidence and no appeal against acquittal has been filed.

5. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

6. Learned counsel for the appellant has contended that the FIR was lodged after a delay of 12 hours which has not been adequately explained; that the dying declaration of the deceased whereby he implicated the appellant in the offence cannot be safely relied upon; that this is not a case of last seen evidence; that there are material contradictions in the evidence of the witnesses which renders their evidence unreliable; the appellants identification is in doubt and the recovered knife was foisted on the appellant by the police and that for any or all of the above reasons the appellant should be acquitted of the charge by being extended the benefit of the doubt. In support of his contentions he has placed reliance on the cases of Basharat Ali v. Muhammad Safdar (2017 SCMR 1601), Muhammad Asif v. The State (2017 SCMR 486), Mst. Zahida Bibi v. The State (PLD 2006 SC 255), Imtiaz alias Taj v. The State (2018 SCMR 344) and Tariq Pervez v. The State (1995 SCMR 1345).

7. On the other hand learned APG appearing on behalf of the State has fully supported the impugned judgment and contended that the appeal is without merit and should be dismissed. He has contended that the dying declaration whereby the deceased implicated the appellant in the murder can be safely relied upon which is corroborated by the last seen evidence and the recovery of the murder weapon (knife) on the appellant's pointation. In support of his contentions he has placed reliance on the cases of Fayyaz Ahmad v. The State (2017 SCMR 2026), Muhammad Abid v. The State (PLD 2018 SC 813), Muhammad Ashraf Khan Tareen v. The State (1996 SCMR 1747), Abdul Khaliq v. The State (2021 SCMR 325), Majeed v. The State (2010 SCMR 55), Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872) and Muhammad Ilyas v. The State (2011 SCMR 460).

8. I have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the appellant's counsel, and the impugned judgment with their able assistance and have considered the relevant law including the case law cited at the bar.

9. At the outset based on the prosecution evidence, especially the medical evidence and the blood stained earth found at the crime scene I find that the prosecution has proved beyond a reasonable doubt that on 10.05.2019 at 11.30 am hours Aijaz Ali (the deceased) was stabbed to death at Gulshan-e-Hadeed Double road, Muslim Road coach bus Ada opposite Shahbaz petrol pump Karachi. This fact is not disputed by the parties.

10. The only question left before me therefore is who stabbed and murdered the deceased at the said time, date and location?

11. After my reassessment of the evidence I find that the prosecution has NOT proved beyond a reasonable doubt the charge against the appellant for which he was convicted keeping in view that each criminal case is based on its own particular facts, circumstances and evidence for the following reasons.

(a) The FIR was lodged by the complainant/father of the deceased after a delay of 12 hours however I do not find such delay to be particularly relevant as such delay has been fully explained. This is because although the deceased was seriously injured at the crime scene he did not die immediately, instead he was taken to the local Al Khidmat hospital where the complainant reached and then transferred to JPMC hospital where he died en route and after his body was handed over to the complainant who took the body home and after completion of police formalities then lodged the FIR. As such delay in lodging the FIR is not fatal to the prosecution case although its contents as will be discussed later might be very detriment to the prosecution case. In this respect reliance is placed on the case of Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872).

(b) I find that the prosecution's case rests almost exclusively on (a) the dying declaration which the deceased made to the complainant in the ambulance en route to JPMC and (b) so called last scene evidence each of which I will deal in detail with below;

Guidelines for the law on relying on a dying declaration were set out in the case of Majeed v. The State (2010 SCMR 55) where it was held as under:-

"7. The evidence of P.Ws. 3,4 and 7 reveals that when they reached on the fire-arm reports they found the deceased Mir Shandad lying dead while Mujeed-ur-Rehman was alive but lying in inured condition who disclosed that the appellant Majeed and Ismail had fired at them. P.W. 7 apart from naming the above two persons also named Naseer and Bashir. All these three witnesses were cross-examined but nothing came on record to discredit their evidence. No serious effort was made to challenge their statement on the question of dying declaration. From the evidence it has bene established beyond any shadow of doubt that deceased Mujeeb-ur-Rehman made dying declaration immediately after the incident, eliminating the possibility of influence etc. before the witnesses making the appellant responsible as one of the accused for causing them injuries. It is a well-settled principle of law that if dying declaration is made even before a private persons, is free from influence and the persons before whom such dying declaration was made was examined then it becomes substantive piece of evidence and for that no corroboration is required and such declaration can be made basis of conviction. This Court gave following guiding principles for relying upon the dying declaration in the case of Farmanullah v. Qadeem Khan 2001 SCMR 1474.

(i) There is no specified forum before whom such declaration is required to made.

(ii) There is no bar that it cannot be made before a private person.

(iii) There is no legal requirement that the declaration must be read over or it must be signed by its maker.

(iv) It should be influence free.

(v) In order to prove such declaration the person by whom it was recorded should be examined.

(vi) Such declaration becomes substantive evidence when it is proved that it was made by the deceased.

(vii) Corroboration of dying declaration is not a rule of law, but requirement of prudence.

(viii) Such declaration when proved by cogent evidence can be made a basis for conviction."

In essence there is no hard and fast rule whether a dying declaration can be believed and can be safely relied upon. Much will depend upon the particular facts and circumstances of the case. In this respect reliance is placed on the case of Ms. Zahida Bibi (Supra).

For the following reasons I place no reliance on the dying declaration of the deceased:

(i) The incident occurred on 10.05.2019 at about 11.30 am in broad day light when the deceased was found seriously injured by his co-workers PW 3 Muhammad Razzaq and PW 4 Allah Noor. The deceased however was conscious throughout but he did not personally tell either of these witnesses that the appellant had stabbed him. He remained conscious until his death a number of hours later yet did not reveal to the police, nurses or Dr's that the appellant had stabbed him.

(ii) Instead after being taken from the wardat to Al Khidmat Hospital and then referred to JPMC the deceased according to the evidence of the complainant gave his dying declaration to the complainant alone in the ambulance on the way to the JPMC. Once at the JPMC he did not tell any police officer, Dr or any other person that the appellant had stabbed him. He died a few hours after reaching the JPMC. I find this fact inexplicable. Why would an injured but conscious man not immediately tell the persons who discovered him at the wardat, the police who took him from the wardat to the Al Khidmat Hospital and the Dr's at the hospital the identity of who had stabbed him. This would have been the key question on all these people's mind especially the police yet the deceased did not mention to any of them, even after he was transferred to JPMC, that the appellant had stabbed him but only told his father alone in the ambulance en route to JPMC. I find that such conduct does not appeal to logic reason or common sense.

(iii) Most significantly, the complainant lodged his FIR about 12 hours after his son/deceased had given him his dying declaration yet there is no mention in the FIR of his son's/deceased dying declaration. Again I find this completely inexplicable. How could the complainant forgotten to have mentioned such important fact, if not the key fact in this case, just a few hours later when he lodged his FIR. Instead he nominates three separate person's in the FIR based on hearsay evidence of one Muhammad Alam who did not give evidence two of whom were not named in the dying declaration. Once again, I find that such conduct does not appeal to logic reason or common sense.

(iv) Again significantly in his S.342, Cr.P.C statement no question was put to the appellant that the deceased made a dying declaration which implicated the appellant in the death of the deceased yet the trial court placed reliance on the deceased's dying declaration. It is well settled by now that all the evidence must be put to the accused at the time of his recoding his S.342, Cr.P.C statement and any evidence which is not put to him and has a chance to explain cannot be used to lead to the conviction of the accused and must be discarded. In this respect reliance is placed on the case of Imtiaz alias Taj (Supra).

They key piece of evidence against the accused was the dying declaration of the deceased which I have discarded for the reasons mentioned above so what other evidence remains against the accused.

(v) Having excluded the dying declaration from consideration since there was no eye-witness to the murder the other piece of evidence again the appellant is so called last seen evidence and as such the case is based on circumstantial evidence which the court must view with great care and caution. In this respect reliance is placed on the case of Azeem Khan v. Mujahid Khan (2016 SCMR 274) which held as under;

"In cases of circumstantial evidence, the Courts are to take extraordinary care and caution before relying on the same. Circumstantial evidence, even if supported by defective or inadequate evidence, cannot be made basis for conviction on a capital charge. More particularly, when there are indications of design in the preparation of a case or introducing any piece of fabricated evidence, the Court should always be mindful to take extraordinary precautions, so that the possibility of it being deliberately misled into false inference and patently wrong conclusion is to be ruled out, therefore hard and fast rules should be applied for carefully and narrowly examining circumstantial evidence in such cases because chances of fabricating such evidence are always there. To justify the inference of guilt of an accused person, the circumstantial evidence must be of a quality to be incompatible with the innocence of the accused. If such circumstantial evidence is not of that standard and quality, it would be highly dangerous to rely upon the same by awarding capital punishment. The better and safe course would be not to rely upon it in securing the ends of justice."

(d) Likewise in the case of Fayyaz Ahmed v. The State (2017 SCMR 2026) the great care and caution in which circumstantial evidence needed to be scrutinized was emphasized specially when dealing with a capital case in the following terms;

"To believe or rely on circumstantial evidence, the well settled and deeply entrenched principle is, that it is imperative for the Prosecution to provide all links in chain an unbroken one, where one end of the same touches the dead body and the other the neck of the accused. The present case is of such a nature where many links are missing in the chain.

The carry conviction on a capital charge it is essential that courts have to deeply scrutinize the circumstantial evidence because fabricating of such evidence is not uncommon as we have noticed in some cases thus, very minute and narrow examination of the same is necessary to secure the ends of justice and that the Prosecution has to establish the case beyond all reasonable doubts, resting on circumstantial evidence. "Reasonable Doubt" does not mean any doubt but it must be accompanied by such reasons, sufficient to persuade a judicial mind for placing reliance on it. If it is short of such standard, it is better to discard the same so that an innocent person might not be sent to gallows. To draw an inference of guilt from such evidence, the Court has to apply its judicial mind with deep thought and with extra care and caution and whenever there are one or some indications, showing the design of the Prosecution of manufacturing and preparation of a case, the Courts have to show reluctance to believe it unless it is judicially satisfied about the guilt of accused person and the required chain is made out without missing link, otherwise at random reliance on such evidence would result in failure of justice."

It may also be kept in mind that sometimes the investigating agency collects circumstantial evidence seems apparently believable however, if the strict standards of scrutiny are applied there would appear many cracks and doubts in the same which are always inherent therein and in that case Courts have to discard and disbelieve the same." (bold added)

Turning to the circumstantial evidence in terms of last seen evidence. The test for last seen evidence has been set out in the following cases in the following terms;

In Fayyaz's case (Supra) at P.2030 at Para 7 it was held as under regarding last seen evidence;

"The last seen evidence is one of such categories of evidence. In this category of cases some fundamental principles must be followed and the Prosecution is under-legal obligation to fulfill the same, some of which may be cited below:

(i) There must be cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused and those reasons must be palpable and prima facie furnished by the Prosecution.

(ii) The proximity of the crime scene plays a vital role because if within a short distance the deceased is done to death then, ordinarily the inference would be that he did not part ways or separated from the accused and onus in this regard would shift to the accused to furnished those circumstances under which, the deceased left him and parted ways in the course of transit.

(ii) The timing of that the deceased was last seen with the accused and subsequently his murder, must be reasonably close to each other to exclude any possibility of the deceased getting away from the accused or the accused getting away from him.

(iv) There must be some reasons and objects on account of which the deceased accompanied the accused for accomplishment of the same towards a particular destination, otherwise giving company by the deceased to the accused would become a question mark.

(v) Additionally there must be some motive on the part of the accused to kill the deceased otherwise the Prosecution has to furnish evidence that it was during the transit that something happened abnormal or unpleasant which motivated the accused in killing the deceased.

(vi) The quick reporting of the matter without any undue delay is essential, otherwise the prosecution story would become doubtful for the reason that the story of last seen was tailored or designed falsely, involving accused person.

Beside the above, circumstantial evidence of last seen must be corroborated by independent evidence, coming from unimpeachable source because uncorroborated last seen evidence is a weak type of evidence in cases involving capital punishment.

(vii) The recovery of the crime weapon from the accused and the opinion of the expert must be carried out in a transparent and fair manner to exclude all possible doubts, which may arise if it is not done in a proper and fair manner.

(viii) The Court has also to seriously consider that whether the deceased was having any contributory role in the cause of his death inviting the trouble, if it was not a pre-planned and calculated murder." (Bold added)

In the later case of Muhammad Abid v. The State (PLD 2018 SC 813) which delved further into the doctrine of "last seen together" evidence it was held as under at P.817 Para 6.:

"The foundation of the "last seen together" theory is based on principles of probability and cause and connection and requires 1. cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused. 2. proximity of the crime scene. 3. small time gap between the sighting and crime. 4. no possibility of third person interference. 5. motive 6. time to death of victim. The circumstance of last seen together does not by itself necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime." (bold added)

Returning to the case in hand.

(a) In fact there is no last seen evidence. This is because no witness actually saw the deceased with the appellant before the incident. Instead the witnesses say that they saw the appellant running away after they were shown where the deceased was lying injured. It was not unusual for the appellant to be in the vicinity as he worked for the same bus company as the deceased and the witnesses who found the injured deceased which was near their place of work. So simply to conclude that because the deceased was seen running away that he committed the crime is not sustainable in law.

(b) The witnesses who saw the appellant running away do not say how far away he was from them and whether they saw him from the back or the front so there might even be some doubt about the identity of the appellant. Furthermore, according to the evidence the witnesses found the injured deceased after the body was pointed out to them after the deceased had been stabbed and was lying injured so it is unclear how long the witnesses were shown the injured body after the deceased was stabbed. It does not appeal to logic, commonsense and reason that if the appellant had stabbed the deceased and seriously injured him that he would just hang around the crime scene. He would have made his escape good before the body was found.

(c) None of the witnesses who gave evidence in respect of the last seen evidence are named in the FIR and they all gave their A.161, Cr.P.C statements 4 to 5 days after the incident which also brings their evidence into doubt due to such long delay in recording their so called eye-witness S.161, Cr.P.C. statements.

2025 M L D 544

[Sindh]

Before Agha Faisal, J

Syeda Rubina Shahid---Plaintiff

Versus

Syed Shahrukh Abbas Zaidi and 9 others---Defendants

Suit No. 1869 of 2022, decided on 28th August, 2024.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), O. XL, R.1---Suit for declaration, administration, rendition of accounts, mesne profit and permanent injunction---Plaintiff being legal heir and sister of private defendants sought administration of a residential property etc. for the reason that one of the defendants (brother of the plaintiff) had converted the residential property into a commercial guest house/motel without any authorization of plaintiff or concerned departmental authorities, thus, it was prayed that the subject property should be given in the sole care and custody of the Nazir/official receiver till the final adjudication of the suit---High Court observed that residential property formed a constituent of the estate, which admittedly was used illegally for a commercial purpose, which was not permissible under the lease thereof---Legal heirs/parties were in unison that such illegal utilization was without sanction and to their collective manifest detriment and it was imperative for the lis to be preserved pending adjudication of the respective claims, thus, the property was taken into safe custody of the court by way of appointing Nazir of the Court as official receiver---High Court adjourned the suit with a further direction to Defense Officers' Housing Authority not to alienate the said property until further orders of the court and also to ensure presence of a conversant officer in the court on the next date of hearing with a written explanation as to why the said residential property was permitted to be used for commercial purpose.

Asad Haider Kazmi for Palintiff.

Laeeq Ahmed for Defendant No. 1 along with Defendant No. 1.

Ms. Rehmat-un-Nisa for KDA.

Date of hearing: 28th August, 2024.

Order

agha Faisal, J.---1-4 This is a suit for administration etc. wherein a preliminary decree has also been rendered on 24.02.2023. The pressing issue before the Court today is the admitted illegal use of residential property, subject matter herein, as a commercial guest house / motel.

Nazir report dated 19.04.2024, in paragraph 2 thereof, demonstrates that Bungalow No.24-B/1, Circular Street, DHA Phase-II, Karachi is being used commercially as a Rest House by the name of New Grace Inn. The respective learned counsel submit that the property is residential in nature, however, the same is illegally being used for commercial purposes to the detriment of all legal heirs parties hereto.

The defendant No.1 is present in court and admits to the aforesaid and states that the illegal activity is being perpetuated by a purported tenant and the same has been happening for the last eight years. The defendant states that he has been unable to restrain the illegal commercial use of the residential property since he has been away from the country.

There is no cavil to the fact that the residential property is a constituent of the estate of the deceased and the same can also be gleaned from documentation available at pages 229 and 233 herein. Pursuant to order dated 24.02.2023, a preliminary decree has already been drawn up and the subject property is the part thereof. Admittedly, the subject property is being used for unlawful purposes to the manifest detriment of all legal heirs; admitted by the defendant No. 1 in person. It is also articulated that illegal use / conversion of the residential property may entail adverse consequences including determination of the lease in respect thereof.

Therefore, it is prayed that the subject property may be given in the sole care and custody of the Nazir, pending adjudication hereof. The statutory1 and the common law in such regard is well settled. Saeed ur Rehman2 and Asadullah Mirbahar3 are two time honored Division Bench edicts of this such regard and Zamir Ahmed Khan4 is a recent reiteration of the law.

In Saeed ur Rehman, a Division Bench upheld the appointment of a receiver, while observing as follows:

"... it will be advantageous to observe that a Receiver appointed under Order XL, Rule I, C.P.C. is ordinarily an impartial and indifferent person between the parties to a cause, appointed by the court to receive and preserve the property or fund in litigation pendente life, when it does not seem reasonable to the court that either party should hold it or where a party is incompetent to do so as in the case of an infant. Thus, a receiver is an officer of the court through whom equity takes possession of the property, preserves it from waste and destruction, secures and collects the proceeds and ultimately disposes of them according to the rights and priorities of those entitled thereto, whether regular parties in the cause or only coming before the court in a reasonable time and in the due course of procedure to assert and establish their claims. The effect of the Appointment of a receiver is not to prejudice the case in any way. The only object and effect of it is to maintain things in their present condition during the pendency of the suit. The main object of the appointment of a receiver is to protect the estate from unnecessary and expensive litigation, to preserve it for the equal benefit of those equally interested in its distribution and to keep the property at all times within the control of the court by which the receiver has been appointed. Thus, the receiver's possession is not a possession by any personal right. It is the possession of the court and he is totally devoid of any interest in the property. He is in the position of a stake-holder, who has custody of the property for the benefit of the true owner, hence the possession of the receiver is on behalf and for the B benefit of all the parties to the suit according to their rights in which he is appointed. Therefore, the property in the hands of receiver is in custodia legis for the person, who can make a title to it. No doubt through the appointment a change of possession takes place, but it has no effect upon the title of the property in any way and determines no right as between the parties, therefore, the possession of a receiver during the pendency of a suit should be regarded as possession for the party, who might ultimately tuna out to be the true owner and entitled to possession as such. The effect of such possession by the receiver is to destroy the adverse possession.

It is pointed out that the issue of appointment of a receiver during pendency of suit and issue of injunctions, whether temporary or permanent, are a form of specific relief. Sir John Woodroffe in his Book "Law Relating to Receivers" observed that a relief by specific performance, injunction and receiver belongs to the same branch of the law. The appointment of a receiver operates as an injunction against the parties, their agents and persons claiming under them, restraining them from interfering with the possession of the receiver except by permission of the court and an order for an injunction is always more or less included in an order for a receiver, therefore, it is not necessary, if a receiver be appointed, to go on and grant an injunction in terms. He further observed that all the three forms of relief are dealt with by the Specific Relief Act. The relief granted by appointment of a receiver pendente lite bears in many respects a close analogy to that by temporary injunction, as such, both are essentially preventive in their nature being properly used only for the prevention of future injury, rather than for the redress of past grievances and both have one common object in so far as they seek to preserve the res or subject-matter of the litigation unimpaired, to be disposed of in accordance with the future decree or order of the Court.

The appointment as well as the removal of a receiver is also a matter which rests in the sound discretion of the Court. In exercising its discretion, the court should proceed with caution and be governed by a view of the whole circumstances of the case. It is pointed out that a receiver should not be appointed in supersession of a bona fide possessor of property in controversy unless there is some substantial ground for interference. Reference is invited to the case of M. Ataur Rehman Alvi v. Inamur Rahman 1974 SCMR 54. It will be noticed that in Order XL, Ruled, C.P.C the words "just and convenient" have been used, which mean than the Court should appoint a receiver for the protection of property or the prevention of injury, according to legal principle and not that the court can make such appointment because it thinks convenient to do so. References are invited to the cases of Habib v. Abtia (23 CLJ 567) and Bhupendra v. Monohar (28 CWN 86). As regards appointment of receiver, a receiver can be appointed, if it is found that the estate is in danger, because no longer properly managed or that difficulties have arisen in connection with litigation about the properties comprised in the estate or that there is good ground to apprehend that the defendant may misapply trust funds. The main principles upon which such discretion should be exercised have been laid down in the case of Owen v. Homan (94 RR 516) and those principles have been held to be equally applicable in Pakistan as in England, as observed by the then justice Cornelius in a case of Lala Roshan Lal v. Ch. Muhammad Afzal PLD 1949 Lah. 60. In the Owen's case Lord Cranworth said:

"The receiver, if appointed in this case, must be appointed on the principle on which the Court of Chancery acts, of preserving property pending the litigation, which is to decide the right of the litigant parties. In such cases the Court must of necessity exercise a discretion as to whether it will or will not interfere by this kind of interim protection of the property. Where, indeed, the property is as it were in medio, in the enjoyment of no one, the Court can hardly do wrong in taking possession. It is the common interest of all parties that the Court should prevent a scramble. Such is the case when a receiver of a property of a deceased person is appointed pending a litigation in the Ecclesiastical Court as to the right of probate or administration. (1) No one is in the actual lawful enjoyment of property so circumstanced, and no wrong can be done to anyone by taking it, and preserving it for the benefit of the successful litigant. But where the object of the plaintiff is to assert a right to property of which the defendant is in the enjoyment, the case is necessarily involved in further questions. The Court by taking possession at the instance of the plaintiff may be doing a wrong to the defendant; in some uses- an irreparable wrong. If the plaintiff should eventually fail in establishing his right against the defendant, the Court may by its interim interference have caused mischief to the defendant for which the subsequent restoration of the property may afford no adequate compensation. In all cases, therefore, where the Court interferes by appointing a receiver property in the possession of the defendant before the title of the defendant is established by decree, it exercises a discretion to be governed by all the circumstances of the case "

... Thus, apparently the alleged possession of the appellant is not a bona fide possession, therefore, his possession cannot be protected in the present circumstances of the case as appearing at this stage...

As regards the appellant letting out the property to his tenant, the written-statement is silent, as no such plea was raised in it. It also appears that at the time of inspection of the property by the Nazir he did not mention such fact to him. In these circumstances, the learned advocate for the respondent No.1 has argued that the said plea was set up after filing the written-statement in order to protect the illegal possession of the property..."

It is paramount to bear in mind that in Saeed ur Rehman the fact that the possession of the property could not be demonstrated to be bona fide and that played a pivotal role in substantiating the appointment of a receiver.

In Asadullah Mirbahar5, Muhammad Ali Mazhar J encapsulated the salient principles for appointment of a receiver. It was observed as follows:

"15. The guiding principles for the appointment of Receiver under Order XL, Rule 1, C.P.C. are laid down as under:

(i) Appointment of receiver rests entirely with the discretion of the court, which is to be exercised judiciously, keeping in view the attending circumstances, to do justice between the parties;

(ii) Appointment of receiver should be to safeguard the interest of both parties, and to save disputed property from mismanagement and mischief;

(iii) Plaintiff is bound to prove strong prima facie case in his favour to the effect that ultimately he will succeed in getting relief as prayed for;

(iv) What are circumstances which warrant immediate appointment of Receiver;

(v) The purpose is not merely to dispossess someone but to prevent the property from waste. Material should be placed on record to show that the subject matter is in danger of waste and malversation;

(vi) Power to appoint Receiver should be sparingly used;

(vii) Possession of person bona fide in occupation of property should not be disturbed unless there are allegations of wastage or dissipation of property or apprehension of irreparable loss or injury.

1. A relief by specific performance, injunction and receiver belongs to the same branch of the law. The relief granted by appointment of a receiver pendente lite bears in many respects a close analogy to that by temporary injunction, as such, both are essentially preventive in their nature being properly used only for the prevention of future injury, rather than for the redress of past grievances and both have one common object insofar as they seek to preserve the res or subject matter of the litigation unimpaired, to be disposed of in accordance with the future decree or order of the Court...

2. The receiver appointed under Order XL Rule 1, C.P C. is ordinarily an impartial and indifferent person between the parties to a cause, appointed by the Court to receive and preserve the property in litigation, thus a receiver is an officer of the court through whom equity takes possession of the property, preserves it from waste and destruction, secures and collects the proceeds and ultimately disposes them of according to the rights and priorities of those entitled thereto...

3. The effect of appointment of receiver by the learned Single Judge was not to prejudice the case of any party but the only object was to maintain the situation intact during the pendency of the suit..."

Encapsulating the discussion, it is observed that the residential property forms a constituent of the estate; it is being used illegally for a commercial purpose despite the same being impermissible under the lease thereof; the legal heirs / parties hereto are in unison that such illegal utilization is without sanction and to their collective manifest detriment and it is imperative for the lis to be preserved pending adjudication of the respective claims. Therefore, a fit case has been set forth before this Court to commit the property to safe custody of this Court.

On the anvil of the law, including as illumined vide Saeed ur Rehman6, Asadullah Mirbahar7 Zamir Ahmed Khan8, it appears just and convenient for a receiver be appointed in respect of Bungalow No.24-B/1, Circular Street, DHA Phase-II, Karachi; in the following terms;

i. The Nazir of this Court is hereby appointed receiver of the Bungalow No.24-B/1, Circular Street, DHA Phase-II, Karachi, which shall remain in his exclusive possession and custody until further orders.

2025 M L D 555

[Sindh]

Before Muhammad Iqbal Kalhoro and Shamsuddin Abbasi, JJ

Abdul Wahab Abbasi---Appellant

Versus

The State---Respondent

Criminal Accountability Appeal No. 31 and Constitution Petition No. D-7754 of 2019, decided on 25th February, 2021.

(a) Criminal trial---

----Discrimination---Effect---Challenging prosecution on the ground of discrimination cannot be a complete valid defense to absolve an accused from criminal liability arising from his actions or inactions---Any person charged for an offence is answerable for his own acts or omission and has to defend himself in a trial for the offence with which he has been charged.

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

----S.342---Defence plea, raising of---Procedure---If accused has a defense plea, the same should be put to witnesses in cross-examination, and then same should be put forward while recording statement under S.342 Cr.P.C.

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

----S.9(a)(vi)---Misuse of authority---Appreciation of evidence---Embezzlement of funds---Loss to national exchequer---Attempt to misuse authority---Accused was alleged to have embezzled a sum of Rs. 12,735,280/- out of scholarship fund which was to be disbursed among poor students---Trial Court convicted the accused and sentenced him to 7 years of imprisonment---Validity---Cheques issued by accused were not crossed cheques and, to some extent, they were issued in the names of heads of the schools---Entire record was silent as to the delivery of those cheques to heads of schools for disbursement of scholarship funds to eligible female students of middle class---Amount of Rs. 16,405,280/- was received by accused from the office of EDO (Education) in the head of scholarship funds for eligible female students of middle class under Sindh Education Reforms Program (SERP) but he disbursed an amount of Rs. 3,670,000/- only and had misappropriated / embezzled remaining amount of Rs. 12,753,280/---Offence of corruption or corrupt practices, as provided in S.9(a)(vi) of National Accountability Ordinance, 1999 includes even an attempt to misuse authority so as to gain any benefit for oneself or for any other person and it need not necessarily result in any personal gain to accused---High Court declined to interfere in conviction and sentence awarded to accused as prosecution successfully proved its case beyond shadow of doubt and accused had failed to point out any material illegality or serious infirmity committed by Trial Court---Appeal was dismissed in circumstances.

Amer Raza Naqvi for Appellants (in Criminal Accountability Appeal No. 31 of 2019).

Ms. Farah Khan, Special Prosecutor NAB for the State (in Criminal Accountability Appeal No. 31 of 2019).

Amer Raza Naqvi for Petitioner (in Constitution Petition No. D-7754 of 2019).

Ms. Farah Khan, Special Prosecutor NAB for the State (in Constitution Petition No. D-7754 of 2019).

Dates of hearing: 18th December, 2020, 20th and 27th January, 2021.

Judgment

Shamsuddin Abbasi, J.---Through listed appeal, Abdul Wahab Abbasi, the appellant has challenged the vires of the judgment dated 30.09.2019, penned down by the learned Accountability Court No.IV {Sindh}, at Karachi, in Reference No.19 of 2014, through which he was convicted under Section 10 of National Accountability Ordinance, 1999 {NAO, 1999} read with Section 265-H{2}, Cr.P.C. and sentenced to undergo rigorous imprisonment for seven {07} years and to pay a fine of Rs.12,735,280/-, recoverable as arrears of land revenue in terms of Section 33-E of the Ordinance, and in default of payment of fine he was ordered to undergo further two {02} years' rigorous imprisonment, disqualified him for a period of ten {10} years to be reckoned from the date he is released after having served the sentence and from being elected, chosen, appointed or nominated as a member of representative of any public body or any statutory or local authority or in service of Pakistan or of any Province and from seeking any financial facility in the form of loan or advances from any financial institution controlled by Government for a period of ten {10} years. The benefit in terms of Section 382-B, Cr.P.C. was, however, extended in favour of the appellant.

1. Succinctly, the facts of the case are that National Accountability Bureau {NAB} filed a Reference against the appellant under Section 18{g} read with Section 24{b} of the National Accountability Ordinance, 1999 {Ordinance} before the learned Accountability Court {Sindh}, at Karachi {Accountability Court} for embezzlement of Government money in the head of scholarship funds for female students of Class-VI to VIII in his capacity as District Officer Education {DOE}, Secondary and Higher Secondary {Male} and thereby caused a loss of Rs.12,735,280/- to the national exchequer by way of embezzlement.

2. The case of the prosecution as set forth in the reference is that the Government of Sindh, Finance Department released a sum of Rs.197 million on account of scholarship for eligible female students of middle schools of Sindh Province under Sindh Education Reforms Program {SERP} for the year 2004-2005. Out of total allocation an amount of Rs.94.484 million was released for Karachi and Rs.1,000/- was to be disbursed to every eligible female student of middle classes from the head of the scholarship funds through the respective headmasters /headmistresses /School Management Committee. At that time appellant Abdul Wahab Abbasi was District Officer Education {Male}. He reported 9,435 female students to the then EDO, City District Government Karachi {CDGK} and requested for release of funds. Accordingly, a sum of Rs.9,435,000/- was allocated and received by the appellant through Cheque No.1864903 dated 21.06.2005 from Accounts and Audit Officer, EDO {Education} CDGK. He got opened an individual A/c No.0068-01-010014416 in MCB for the purpose of issuing crossed cheques to the heads of the concerned schools for further distribution of scholarship funds to the female students. Instead of issuing crossed cheques, he withdrew different amount through ATM and cheques and got transferred remaining amount of Rs.7,738,000/- into his A/c No.1351-1, lying with National Bank of Pakistan, Sindh Secretariat Branch, Karachi, through Cheque No.2746507 dated 05.07.2005. Besides, he had been requesting the EDO {Education} for release of scholarship funds during the years 2002-2003, 2003-2004 and received total amount of Rs.16,205,280/- in the head of scholarship funds through different transactions and disbursed only Rs.3,670,000/- while remaining amount of Rs.12,735,280/- was embezzled, thereby caused loss to the national exchequer, which constitute an offence of corruption and corrupt practices as defined under Section 9{a} of NAO, 1999 and schedule thereto punishable under Section 10 of the Ordinance.

3. The learned Accountability Court, on taking cognizance of the matter, charged the appellant for the offence of corruption and corrupt practices as defined under Section 9{a}{ii}{iii}{iv}{vi} of NAO, 1999 read with Schedule attached thereto punishable under Section 10 the Ordinance, who pleaded not guilty and claimed a trial.

4. The prosecution, in support of its case, examined 12 witnesses. Allah Ditto Shaikh {Junior School Teacher} appeared as PW.1 Ex.6. He handed over the record to investigating officer viz compilation report of female students for the year 2004-2005, attendance registers, results sheets, cheque No.5624118 and affirmed his signatures on seizure memos. Anwar Hussain Memon {Manager Operation MCB Sindh Secretariat Branch} appeared as PW.2 Ex.7. He produced record relating to A/c No.006801114416, in the name of Abdul Wahab, viz account opening form, CNIC, acknowledgment, personal account client form, application for smart card, new account proof list, letters of thanks, bank statements from 01.01.2005 to 30.06.2008, 11 cheques, 5 deposit slips to investigating officer and affirmed his signature on seizure memo. Abdul Bari {Manager NBP Sindh Secretariat Branch} appeared as PW.3 Ex.8. He produced 34 cheques along with CNIC of appellants, account opening form, SS card, letter of EDO Education, statement of account from 01.01.2004 to 30.06.2008 to investigating officer and affirmed his signatures on seizure memo. Sikandar Ali {EDO Education CDGK} appeared as PW.4 Ex.9. He has given the details of cheques given to appellant under Sindh Education Reforms Program {SERP}. Mumtaz Ali Bhutto {Head Master} appeared as PW.5 Ex.10. He produced result sheets of female students for class 6, 7 and 8 along with compiled statement to investigating officer and affirmed his signature on seizure memo. Ghulam Rasool Jokhio {Head Master GBSS Faysal Model Academy Model Colony Karachi} appeared as PW.6 Ex.11. He has verified letter dated 23.05.2011, issued by him as DO Education Male and affirmed his signature on it. Naeemullah Jatoi {Junior Investigating Officer NAB} appeared as PW.7 Ex.12. He affirmed his signature on seizure memo whereby eight documents were taken into custody by investigating officer, produced by Accounts Officer {Audit} Director School Education. He has certain receipts of certain cheques, pay orders, letters, enrollment, seizure memos. Hizbullah {Junior Clerk GBSS Gaghar Village} appeared as PW.8 Ex.13. He is a witness of seizure memo whereby investigating officer taken into custody compiled report of female students for the year 2004-2005, attendance register, result sheets, produced by Allah Ditto {JST} and affirmed his signature on it. Dadlo Zuharani {Dy. Secretary Health Department} appeared as PW.9 Ex.15. He handed over three letters to investigating officer pertaining to release of funds and policy guidelines. Sohail Kamran {Manager Operation KDA Civic Centre Branch} appeared as PW.10 Ex.17. He produced record of A/c No.1171-9 to investigating officer viz account opening form, SS card, bank statement, CNIC and affirmed his signature on seizure memo. Muhammad Amir Butt {Additional Director Staff NAB} appeared as PW.11 Ex.18. He conducted inquiry and concluded that appellant opened personal account in MCB and deposited several Government cheques in his account and 90% of the deposited amount was withdrawn by him and recommended for conversion of the inquiry into investigation. Sarwan Ahmed {Assistant Director/ Investigating officer} appeared as PW.12 Ex.19. He has highlighted modus operandi adopted by the appellant, recorded the statements of witnesses, seized the relevant record and filed Reference on the recommendations of the competent authority. Thereafter, the prosecution closed its side vide statement Ex.20.

5. The appellant was examined under Section 342, Cr.P.C. at Ex.21, who denied all allegations imputed upon him by the prosecution, professed his innocence and stated his false implication owing to enmity with Ms. Fakhar Karim Siddiqui {DO} who was the sole beneficiary of the entire scam and she made a report against her. The appellant further stated his false implication due to enmity with Zaigum Abbas {UDC NAB} who disclosed his identity as AD ISI and pressurized him to release the salaries of fake and illegal appointees, who had closed relations with official of NAB, but he refused. He prayed for mercy. The appellant has produced 13 witnesses namely, Bashir Ahmed Shaikh, Syed Zaigham Abbas, Muhammad Ishaq, Ghulam Khattani, Iqbal Hussain Channa, Tariq Aziz, Shamim Akhtar, Syed Sagheer Wasli, Gul Muhammad, Syed Taj Muhammad, Dr. Muhammad Ali, Shabbir Ahmed Jokhio in his defence, but opted not to examine himself on Oath under Section 340{2}, Cr.P.C. He, however, filed a written statement under Section 265-F{5}, Cr.P.C.

6. The trial culminated in conviction and sentence of the appellant as stated in para-1 {supra}, hence necessitated the filing of listed appeal and petition, which are being disposed of through this single judgment.

7. The learned counsel for the appellant has called into question the very jurisdiction of NAB and submitted that before filing reference no proper exercise was conducted in the light of guidelines highlighted by the Hon'ble Superior Court and the mandatory commands of law; that the prosecution had failed to discharge its legal obligation of proving the guilt of the appellant as mandatory requirement of Section 14 of the NAO, 1999, and the appellant was not liable to prove his innocence; that he has been falsely implicated in this case owing to enmity with Ms. Fakhar Karim Siddiqui {DO} who was the mastermind of the scam and responsible for all illegal and unlawful acts and beneficiary of the whole scam and just to save her skin cooked up a false and fabricated story in collusion with NAB officials and one Zaigum Abbas, who showed himself from ISI and pressurized the appellant to release the salaries of appointees and on his refusal hatched a conspiracy against the appellant and got him involved in this false case in connivance with NAB officials; that the I.O. has conducted dishonest investigation and let off real culprits and involved the appellant in a case with which he has no nexus, hence it is a case of pick and choose; that the evidence adduced by the prosecution is not trustworthy and confidence inspiring as such the same has wrongly been relied by the learned trial Court; that none from the headmasters, headmistresses and students had been examined by the prosecution to substantiate its case against the appellant; that the case against the appellant lacked mens rea and in absence thereof no criminal liability could be penned down on him. Per learned counsel, such kind of offence cannot be committed without the active connivance of others, but here in this case only the appellant had been made victim of the circumstances and none else had been nominated as accused including Ms. Fakhar Karim Siddiqui {DO}, which is clear discrimination; that the prosecution had failed to bring home the charge against the appellant through cogent and reliable evidence; that the witnesses produced by prosecution were interested and inimical to the appellant, thus, they deposed against the appellant favouring the prosecution, hence their testimony was wrongly relied upon by learned trial Court; that they were inconsistent with each other rather contradicted on crucial points benefit whereof must go to the appellant; that the prosecution had not been able to bring on record any evidence against the appellant showing assets beyond his source; that the learned trial Court did not appreciate the evidence in line with the applicable law and surrounding circumstances and based its findings on misreading and non-reading of evidence and arrived at a wrong conclusion in convicting the appellant merely on assumptions and presumptions; that the learned trial Court totally ignored the evidence adduced by the appellant in his defence, which was sufficient to prove his innocence. Per learned counsel, all steps taken by the appellant were in accordance with law and he had not done any illegal act, which could saddle penal consequences on him. Finally, the learned counsel submitted that the appellant did not derive any personal financial gain from the acts for which he was charged, tried and convicted, thus the conclusion drawn merits reversal.

8. Strongly opposing the contentions of the learned counsel for the appellant, the Special Prosecutor NAB has contended that the appellant was lawfully proceeded against under the enabling provisions of the Ordinance, which were strictly in accordance with the settled principles of the criminal justice system of providing the appellant with complete opportunity to defend himself; that the appellant in his capacity as District Officer Education {Male} embezzled an amount of Rs.12,735,280/- released by the Sindh Government under Sindh Education Reforms Program {SERP} and caused a colossal loss to the national exchequer; that the prosecution in support of its case produced oral as well as documentary evidence, which was rightly relied upon by learned trial Court. Per learned counsel, the witnesses were subjected to lengthy and taxing cross-examination but nothing favourable to the appellant could come out from their mouth. Finally, submitted that the findings recorded by the learned trial Court in the impugned judgment are based on fair evaluation of evidence and documents brought on record, to which no exception could be taken. She, therefore, prayed for dismissal of appeal as being devoid of any merit.

9. We have given our anxious consideration to the submissions of learned counsel for the appellant and the learned Special Prosecutor NAB and gone through the entire material available on record with their able assistance.

10. As regards the first contention of the learned counsel for the appellant challenging the very jurisdiction of NAB in filing a reference against the appellant on the ground that no proper exercise was conducted in the light of guidelines highlighted by the Hon'ble Superior Court, suffice to observe that Subsection (b) of Section 18 of the Ordinance deals with the initiation of a reference by NAB, which reads as under:-

"Cognizance of Offences:-

{b} A reference under this Ordinance shall be initiated by the National Accountability Bureau on

{i} a reference received from the appropriate Government; or

{ii} receipt of a complaint; or

{iii} its own accord."

1. The above provision clearly provides three different modes to initiate a reference against an accused. Clause (ii) (supra) is so worded to encompass a complaint filed by any person accusing any person of committing corruption to be the basis for NAB to initiate a reference under the Ordinance. We have gone through the reference which specifically disclosed that an inquiry was initiated on the basis of a complaint from the office of EDO {Education}, Karachi, with regard to embezzlement of millions of rupees from the scholarship funds. Pursuant to such inquiry the investigation was followed and it was found that appellant in his capacity as District Officer Education {DOE}, Secondary and Higher Secondary {Male}, misused his official authority and embezzled an amount of Rs.12,735,280/- from the head of scholarship funds provided by the Government of Sindh under Sindh Education Reforms Program {SERP} for the year 2004-2005, which was to be disbursed to every eligible female student of middle classes through the respective headmasters, headmistresses and School Management Committee, thereby caused loss to the national exchequer. In view of this background of the matter, the offence falls within the purview of a complaint as provided under clause {ii} of Subsection (b) of Section 18 of the Ordinance. Thus, the stance taken by the learned counsel for the appellant challenging the entire reference on the touchstone of this alleged jurisdictional defect is misconceived.

2. As to the next contention that the prosecution has not been able to discharge its duty of proving the guilt of the appellant and shifting onus on the appellant as mandatory requirement of Section 14 of NAO, 1999 is concerned, suffice to observe that the prosecution has examined as many as twelve {12} witnesses, who were subjected to lengthy cross-examination but nothing favourable to the appellant could come out from their mouth. They were consistent on each and every aspect of the matter and did not contradict each other on material points. Nothing has been brought on record on behalf of the appellant that the prosecution witnesses had some grudge against him for his false implication in the commission of offence. We have noticed that in rebuttal to overwhelming prosecution evidence, the appellant has failed to produce any tangible material to rebut the trustworthy and confidence inspiring evidence of the prosecution witnesses. All the witnesses have supported the case of the prosecution and implicated the appellant in the commission of offence. The ocular account furnished by the prosecution had also been supported by the documentary evidence.

3. A keen look of the record reveals that the appellant in his capacity as District Officer Education {DOE} opened two bank accounts, one in Muslim Commercial Bank {MCB}, Sindh Secretariat Branch and another one in National Bank of Pakistan {NBP}, Sindh Secretariat Branch, for disbursement of funds provided for scholarship to the eligible female students of Class-VI to Class-VIII of 32 schools for the year 2004-2005. The account lying with MCB appears to be a personal account, which was opened without getting permission from competent authority and the appellant had deposited an amount of Rs.14,248,075/- in the said account and got transferred Rs.77,48,000/- from it into his official account lying with NBP for which a permissions was obtained. It is noteworthy that the appellant had also obtained ATM facility against MCB account and this fact has been admitted by him in his written statement under Section 265-F{5}, Cr.P.C. that such facility of ATM was availed by him and he had withdrawn an amount Rs.10,000/- in two transactions through ATM card. The other aspect which supports the case of the prosecution is that the appellant had withdrawn entire amount from MCB account through open cheques leaving an amount of Rs.77,48,000/-, which was transferred by him into his NBP account, but he failed to prove that such amounts were paid by him to the concerned Heads of the Schools for disbursement to the eligible female students towards scholarship. The cheques pertaining to NBP account though were opened cheques but the same were issued in favour of Heads of the concerned Schools for disbursement of scholarship amongst the eligible female students of Class-VI to Class-VIII.

4. The plea taken by the appellant that City District Government Karachi {CDGK} had announced a policy and framed a guideline for disbursement of scholarship funds through cash or cheque withdrawing condition of crossed cheque or opening of account in a bank, owned by the Government, and requiring the DOEs for issuance of cheques amongst concerned Heads of the Schools is concerned, suffice it to say that the learned trial Court has rightly discarded the evidence adduced by the appellant in his defence and the documents on which he had relied upon in this regard, available at pages 1019 and 1021, 1043, 1045 and 1049 of paper book, as inadmissible in view of Articles 73 and 74 of Qanun-e-Shahadat Order, 1984 and the case law reported as 2000 MLD 901, wherein it has been held that in absence of proof of loss of original record, photocopies are not admissible. The plea taken by the appellant that original record had been taken away by Ms. Fakhar Karim Siddiqui was neither supported by any documentary evidence nor the appellant appeared and deposed so on Oath under Section 340{2}, Cr.P.C. In view of this background of the matter, this plea seems to be after thought just to save his skin from the clutches of law and unsafe to rely upon. The other plea taken by the appellant that he had disbursed total amount of scholarship funds amongst Heads of the Schools and relied on audit report, available at page 1001 to 1013 of paper book, is concerned, suffice to observe that the register {Ex.21/3} did not contain either the name and signature of the officer or the official stamp of DOE {S/HS-M}. It also did not contain a certificate as to the number of pages and total number of entries with regard to disbursement of scholarship funds to the Heads of the concerned Schools as such the authenticity and genuineness of the documents relied upon by him seems to be doubtful and the learned trial Court had rightly discarded the same. The appellant had also failed to examine auditor Abdul Khaliq, who was given up on the ground of his illness, but no such record with regard to his ailment had been produced by him. The appellant had examined 13 witnesses in his defence but did not appear and depose on Oath under Section 340{2}, Cr.P.C. which will give rise to a presumption that the plea taken by him in his defence was not a gospel truth, therefore, he avoided to appear and depose on Oath under Section 340{2}, Cr.P.C.

5. PW.9 Dadlo Zuharani, who is Deputy Secretary, Health Department, Government of Sindh, has given the details with regard to release of funds amounting to Rs.17,00,00,000/- and Rs.19,00,00,000/- in the head of scholarship funds under Sindh Education Reforms Program {SERP} under letters of Finance Department, Government of Sindh addressed to Accountant General {Sindh}, which were to be disbursed to each eligible female student of middle classes through the respective headmasters, headmistresses and School Management Committee under the guidelines of CDGK. PW.1 Allah Ditto Shaikh {Junior School Teacher} has given the details with regard to record of female scholarship viz compilation report, attendance register and result sheets for classes VI, VII and VIII and handed over the same to the investigating officer. He had been supported by PW.8 Hizbullah {Junior Clerk}, who has deposed in the same line as that of PW.1. He affirmed his signature on seizure memo and identified documents Ex.06/1 to Ex.06/5 as same. PW.5 Mumtaz Ali Bhutto {Head Master} has also recorded the same evidence as deposed by PW.1 and PW.8. PW.7 Naeemullah Jatoi is the junior investigation officer NAB in whose presence the investigating officer seized relevant documents produced by Aijaz Ali Soomro, Accounts Officer {Audit}, Director Schools Education, Karachi. He affirmed his signature on seizure memo. PW.6 Ghulam Rasool Jokhio is the Head Master and at the relevant point of time was holding additional charge of DOE {Male}, CDGK. He has verified his signature on the letter dated 23.05.2011 {Ex.11/01} addressed to EDO {Education}, CDGK in the matter of inquiry against the appellant. PW.12 Muhammad Amir Butt is Additional Director NAB, Karachi. He was authorized to conduct an inquiry into the matter. On the orders of Director General, PSP, IGP he conducted inquiry and concluded that appellant opened personal account in MCB and deposited several Government cheques in his account and 90% of the deposited amount was withdrawn by him and recommended for conversion of the inquiry into investigation. He produced authorization letter and inquiry report at Ex.18/1 and Ex.18/2 respectively. PW.2 Anwar Hussain Memon is Manager Operation, MCB Sindh Secretariat Branch. He has given the details of A/c No.006801114416 in the name of the appellant and handed over the relevant record with respect to the said account to investigating officer, who seized the same under a seizure memo. He produced account opening form, CNIC, acknowledgment, personal account client form, application for smart card, new account proof list, letter of thanks, 11 cheques, 5 deposit slips at Ex.7/1 to 7/10 respectively. PW.3 Abdul Bari {Manager NBP Sindh Secretariat Branch}. He has given the details of A/c No.1351-1 in the name of District Officer Education, which was opened on the recommendation of Executive District Officer {EDO} Education and appellant was authorized to operate said account. He deposed that an amount of Rs.1,02,35,226/- was withdrawn through different cheques. He produced 34 cheques and CNIC of appellant. He also produced account opening form, SS card, letter of EDO Education and statement of account at Ex.8/2. PW.10 Sohail Khan is Manager Operation, KDA Civic Centre Branch, Karachi. He has given the details of A/c No.1171-9 and handed over account opening form, SS card, bank statement and CNIC to investigating officer, who took them into custody under a seizure memo. PW.12 Sarwan Ahmed is the investigating officer, who seized relevant record from banks and education department, recorded statements of witnesses and submitted reference in Court on the recommendation of competent authority. In view of this background of the matter, we are of the considered view that the prosecution has successfully discharged its burden of proving the guilt of the appellant, hence it was his duty to disprove the prosecution case and prove his innocence.

6. The learned counsel for the appellant has also claimed that the action of NAB against the appellant was discriminatory as it had only singled out the appellant as accused in the reference. This contention on the face of it seems to be legally incorrect. It is a well settled principle of criminal jurisprudence that challenging prosecution on the ground of discrimination cannot be a complete valid defence to absolve an accused from criminal liability arising from his actions or inactions. Any person charged for an offence is answerable for his own acts or omissions and has to defend himself in a trial for the offence with which he has been charged. In the case in hand, the appellant has failed to prove his innocence through cogent and reliable evidence.

7. As to the plea that he has been falsely implicated in this case on account of enmity with Ms. Fakhar Karim Siddiqui and Zaigum Abbas and the witnesses being inimical to the appellant have deposed against him favouring the prosecution is not borne out from the record. The witnesses being independent and private persons have specifically involved the appellant in the commission of the offence. The appellant has failed to establish any animosity or ill-will against the witnesses, who have deposed against him and mere saying that he has falsely been implicated in this case is not sufficient to prove his innocence particularly in view of the fact that the prosecution witnesses were consistent and their evidence could not be shattered in cross-examination. If both the version, one put forward by the appellant and the other put forward by the prosecution, are considered in a juxtaposition, then the version of the prosecution seems more plausible and convincing and near to truth while the version of the appellant seems to be doubtful. It is noteworthy that during trial appellant has neither denied submission of cheques nor his signatures on it. No request was made to the learned trial Court to challenge the genuineness of such cheques and verification of his signatures through forensic expert and the said cheques are part of the record of this case. In the circumstances, the learned trial Court has rightly appreciated the evidence brought on record by the prosecution and recorded conviction acting upon the material available with the learned trial Court by holding that the prosecution has succeeded to establish its case against the appellant. We are also conscious of the fact that law requires that if accused had a defence plea the same should be put to the witnesses in cross-examination and then put forward the same while recording statement under Section 342, Cr.P.C. which is lacking in the instant case. In the circumstances, since the specific defence plea had not been taken by the appellant in his Section 342, Cr.P.C. the learned trial Court had rightly discarded the same to be not of confidence inspiring.

8. As to the last contention that the appellant had not drawn any personal gain or caused any financial loss to the National exchequer is concerned, we have minutely assessed the entire record, which reflects that appellant had withdrawn certain amount through cheques from the scholarship funds. He himself admitted such withdrawal in his Section 342, Cr.P.C. statement. The A/c No.0068-01-010014416, lying with Muslim Commercial Bank MCB}, Bolten Market Branch, Karachi, was opened in the name of the appellant and none was shown as next of kin in the column "Authority to contract" except Deputy District Officer Education {DDOE} {Admn}. The purpose of this account was only for issuance of crossed cheques by the appellant to the heads of the concerned schools for disbursement of scholarship funds to the eligible female students, but he obtained ATM facility without permission of the competent authority through his application dated 10.06.2004 {Ex.07/5} and withdrew certain amounts and encashed certain cheques. He also got transferred an amount of Rs.7,738,000/- through Cheque No.2746507 dated 05.07.2005 into his A/c No.1351-1, lying with National Bank of Pakistan, Sindh Secretariat Branch, Karachi. These cheques are part of the record of this case and the appellant has failed to furnish a plausible explanation with regard to said cheques. The record is suggestive of the fact that the cheques issued by the appellant were not crossed cheques and to some extent they were issued in the names of heads of the schools, but the entire record is silent as to the delivery of said to the heads of the schools for disbursement of the scholarship funds to the eligible female students of middle class. A keen look of the record reveals that the an amount of Rs.16,405,280/- was received by the appellant from the office of EDO {Education} in the head of scholarship funds for eligible female students of middle classes under Sindh Education Reforms Program {SERP}, but he disbursed an amount of Rs.3,670,000/- only and misappropriated/ embezzled remaining amount of Rs.12,735,280/-. Even otherwise the offence of corruption or corrupt practices as provided in clause (vi) of subsection (a) of section 9 of the Ordinance includes even an attempt to misuse authority so as to gain any benefit to any other person and it need not necessarily result in any personal gain to the accused. The said provision reads as under:-

2025 M L D 583

[Sindh]

Before Naimatullah Phulpoto and Irshad Ali Shah, JJ

Kamran Shah---Appellant

Versus

The State---Respondent

Criminal Appeal No. 485 of 2024, decided on 5th September, 2024.

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

----S. 9(b)---Possession of charas---Appreciation of evidence---Contradiction in the statements of witnesses---Prosecution case was that 250-grams charas was recovered from the possession of accused---Prosecution case was that during patrolling, at Railway track, a person (appellant) on seeing the police party tried to run away---Police Officials nabbed the appellant and recovered 250-grams charas from him; it was taken into possession, mahsirnama of arrest and recovery was prepared, case property was sealed and accused was brought to police station---However, neither the spot was photographed nor video was made---Case of the prosecution was that alleged recovered charas was in pieces but number of pieces allegedly recovered was not mentioned in the mashirnama of arrest and recovery---Complainant in his evidence nowhere deposed that to whom he handed over the alleged recovered charas---However, Head Moharrir in his evidence had deposed that complainant handed over to him case property and he kept such entry in Register No. XIX whereas perusal of said entry transpired that one SI had made entry in the Register and not the Head Moharrir---Head Moharrir in his cross-examination had given evasive reply with regard to receiving and handing over the case property---Appeal against conviction was allowed, in circumstances.

Zahir Shah alias Shat v. The State through Advocate General Khyber Pakhtunkhwa 2019 SCMR 2004 ref.

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

----S. 9(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Possession of charas---Appreciation of evidence---Withholding material witness---Effect---Prosecution case was that 250-grams charas was recovered from the possession of accused---Complainant in his cross-examination had stated that mashirnama of arrest and recovery was prepared in torch light by Police Constable---Neither torch was produced nor said Police Constable was examined by the prosecution---Inference which could be drawn of non-examination of said Police Constable, under Art.129(g) of Qanun-e-Shahadat, 1984, would be that he might not have supported the case of prosecution---Appeal against conviction was allowed, in circumstances.

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

----S. 9(b)---Possession of charas---Appreciation of evidence---Safe custody and safe transmission of the parcels of recovered substance to laboratory for analysis not proved---Prosecution case was that 250-grams charas was recovered from the possession of accused---Record showed that the prosecution had failed to establish safe custody and safe transmission of the sealed parcels to the Chemical Examiner before Trial Court---Moreover, the Trial Court had also failed to perform its duty by not putting some material questions to the prosecution witnesses in order to ascertain the truth---Thus, it appeared that the Trial Court conducted the trial in a very casual manner---Chain of safe custody and safe transmission of narcotics must be safe and secure because the Report of Chemical Examiner enjoyed very critical and pivotal importance under the Act 1997 and the chain of custody ensured that correct representative samples reached the office of the Chemical Examiner---Any break or gap in the chain of custody i.e., in the safe custody or safe transmission of the narcotic or its representative samples did not justify convicting the accused on the basis of the report of the Chemical Examiner---In the present case safe custody and safe transmission could not be established---Thus, conviction recorded by Trial Court was not sustainable under the law---Appeal against conviction was allowed, in circumstances.

Zahir Shah alias Shat v. The State through Advocate General Khyber Pakhtunkhwa 2019 SCMR 2004 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---Single or slightest doubt, if found reasonable, in the prosecution case would be sufficient to entitle the accused to its benefit, not as a matter of grace and concession, but as a matter of right.

Tajamal Hussain v. The State 2022 SCMR 1567 rel.

Allah Bakhsh Narejo for Appellant.

Saleem Buriro, Additional Prosecutor General Sindh for the State.

Date of hearing: 5th September, 2024.

Judgment

Naimatullah Phulpoto, J.---Appellant Kamran Shah has filed instant appeal under Section 410 Cr.P.C read with Section 48 of the CNS Act 1997 against the judgment dated 01.07.2024 passed by learned Special Judge, CNS Karachi South (hereinafter referred to as trial Court) in S.C.No.2951/2022 (FIR No. 154/2022 for offence punishable under Section 9(b) of CNS Act 1997 registered at PS Tipu Sultan, Karachi).

1. By way of the impugned judgment, appellant has been convicted by trial court for commission of offence punishable under Section 9(b) of CNS Act 1997 and sentenced to undergo rigorous imprisonment for 01 year and 03 months with fine of Rs.9000/- and in case of failure of payment of fine, he was directed to undergo simple imprisonment for 03 months and 15 days. Appellant was extended benefit of Section 382-B Cr.P.C.

2. Brief facts leading to the filing of the present appeal before this Court as emerged from the record are as under.

3. On 01.06.2022, SIP Sahib Khan of PS Tipu Sultan along with his subordinate staff left police station for patrolling. During patrolling, at 2230 hours, when said police party reached at Railway track inside Balouch Bridge, a person seeing it tried to run away, he was found in suspicious manner and was caught hold. On enquiry, he disclosed his name as Kamran son of Sabir Shah, from his person search, a plastic shopper containing pieces of charas was recovered. On weighment, those were found to be 250 grams. Mashirnama of arrest and recovery was prepared in presence of mashirs PCs Sadam Akbar and Owais Saleem. The contraband, so recovered was sealed. Accused and case property were brought to the police station. First Information Report against accused was lodged on behalf of state vide Crime No. 154/2022 for offence punishable under Section 9(b) of CNS Act 1997 registered at PS Tipu Sultan, Karachi. Charas was sent to the Chemical Examiner. Other codal formalities were completed. After completion of investigation and after securing positive report of Chemical Examiner, police filed challan against the accused before trial Court.

4. The charge framed by learned trial Court was put to the accused, he did not admit his guilt and claimed to be tried.

5. Since accused had not pleaded guilty, as such prosecution was directed to adduce its evidence. In order to prove charge framed against the accused, prosecution has examined as many as 04 witnesses, who produced relevant documents.

6. After closure of the evidence of prosecution, entire incriminating evidence appearing against the accused was put to him in his statement recorded under Section 342 Cr.P.C. Accused denied prosecution's case and took the defence of false implication at the behest of Head Moharrir Shahzad of PS Tipu Sultan, claiming enmity with him. However, accused neither opted to examine himself on oath nor led any evidence in his defence.

7. After closure of evidence and after hearing learned counsel for the parties, learned trial Court has convicted the accused for commission of offence punishable under Section 9(b) of CNS Act 1997 and sentenced him as referred above.

8. Learned counsel for the appellant argued that evidence of police officials is not confidence inspiring; that there are material contradictions in the evidence of the prosecution witnesses and that prosecution has failed to prove safe custody and safe transmission of the Charas to the Chemical Examiner before the trial Court. Reliance is placed upon the case of Zahir Shah alias Shat v. The State through Advocate General Khyber Pakhtunkhawa (2019 SCMR 2004).

9. Per Contra, learned Addl. P.G has supported the judgment of conviction and sentence on the ground that no finger can be raised on the judgment on the ground that P.Ws are the police officials in this case. APG heavily relied upon the testimonies of police officials and positive report of chemical examiner and prayed that evidence of police officials is confidence inspiring. As such, prayer has been made to dismiss the appeal.

10. In order to decide the present appeal, it would be just and proper for this Court to re-examine the evidence of the official witnesses, led by the prosecution in order to prove the charge.

11. After re-examination of the entire prosecution evidence produced before the trial Court, we have come to the conclusion that prosecution has failed to prove it's case against the appellant for the reasons that there are material contradictions in the evidence of the prosecution witnesses. It is the prosecution case that place of recovery was thickly populated area but SIP Sahib Khan, the head of police party failed to make any effort to associate any independent person as a mashir of recovery and arrest. According to prosecution evidence on 01.06.2022, SIP Sahib Khan of PS Tipu Sultan along with his subordinate staff left police station for patrolling. During patrolling, at 2230 hours, when police party reached at Railway track inside Balouch Bridge, a person (appellant) on seeking police party tried to run away. P.W-01 along with other police officials nabbed the appellant and recovered 250 grams of charas from him, it was taken into possession, mahsirnama of arrest and recovery was prepared, case property was sealed and accused was brought to police station, neither spot was photographed nor video was graphed. Appellant was unrepresented, however, learned trial Judge put up some questions to P.Ws/police officers. In the cross-examination P.W-01 SIP Sahib Khan has replied that mashirnama of arrest and recovery was prepared on torch light flashed by DPC Owais, neither torch was produced nor DPC Owais was examined by the prosecution. The inference which could be drawn of his non-examination under Article 129(g) of the Qanun-e-Shahadat Order, 1984, would be that he might not going to support the case of prosecution. P.W-03 PC Sadam Akbar belied the complainant, by stating that in his cross-examination that SIP prepared memo of arrest and recovery on the bonnet of mobile vehicle under the lights of the houses situated at place of incident. It is case of the prosecution that alleged recovered charas was in pieces but number of pieces allegedly recovered was not mentioned in the mashirnama of arrest and recovery. PW-01 SIP Sahib Khan in his evidence no where deposed that to whom he handed over the alleged recovered charas. However, P.W-04 Head Mohrar ASI Muhammad Nadeem in his evidence has deposed that ASI Sahib Khan handed over him case property and he kept such entry in Register No. XIX whereas perusal of entry transpires that one SI Mehboob Ali entered in the Register and not PW-04 Head Mohrar ASI Muhammad Nadeem. Head Mohrar in his cross-examination has given evasive replies with regard to receiving and handing over case property. Prosecution has utterly failed to establish safe custody and safe transmission of the sealed parcel to the chemical examiner before trial Court. Moreover, the Trial Court had also failed to perform its duty by not putting some material questions to the prosecution witnesses in order to ascertain the truth. It appears that the Trial Court conducted the trial in a very casual manner.

12. It is an established position that the chain of safe custody and safe transmission of narcotics must be safe and secure because, the Report of Chemical Examiner enjoys very critical and pivotal importance under CNS Act and the chain of custody ensures that correct representative samples reach the office of the Chemical Examiner. Any break or gap in the chain of custody i.e., in the safe custody or safe transmission of the narcotic or its representative samples makes the report of the Chemical Examiner fail to justify conviction of the accused but in the present case safe custody and safe transmission could not be established as stated above. Thus, conviction recorded by trial Court is not sustainable under the law as held in the case of Zahir Shah alias Shat v. The State through Advocate General Khyber Pakhtunkhawa (2019 SCMR 2004). Relevant portion is reproduced as under:

"………This court has repeatedly held that safe custody and safe transmission of the drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory must be satisfactorily established. This chain of custody is fundamental as the report of the Government Analyst is the main evidence for the purpose of conviction. The prosecution must establish that chain of custody was unbroken, unsuspicious, safe and secure. Any break in the chain of custody i.e., safe custody or safe transmission impairs and vitiates the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction…….."

2025 M L D 597

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

Mir Nooroze Ali---Appellant

Versus

The State---Respondent

Criminal Appeal No. S-72 of 2024, decided on 1st January, 2025.

Sindh Arms Act (V of 2013)---

----S.23(1)(a)---Possession of illegal weapon---Appreciation of evidence---Present case offshoot of another case---Acquittal recorded in other case---Effect---Prosecution case was that an unlicensed pistol with magazine containing 03 live bullets was recovered from the possession of accused---From the perusal of the record it appeared that the recovery shown from the appellant originated from the incident of case for the offence under S.365-B, P.P.C, alleging abduction of wife of complainant of that case by the appellant and his brother on gunpoint in a car---However, due to accident of the car, the appellant was apprehended along with pistol being allegedly carried by him and was produced before police---Record transpired that the Trial Court had acquitted the appellant, mainly for the reason that alleged abductee did not support the prosecution case, stating that no such incident had occurred---Surprisingly, the Trial Court, on one hand, believing the evidence of alleged abductee, acquitted the appellant of the charge of abduction, then the question was on what basis the evidence of mashir/eye-witness, who had produced the appellant before police claiming to have apprehended him along with the weapon after the incident of abduction, was believed---Trial Court had not properly appreciated the entire material and had not applied judicious mind to evaluate/appreciate the facts and circumstances of case in hand---In such circumstances, the other oral and documentary evidence brought on record, was of no effect, rather, the very recovery of offensive weapon became doubtful---Since the appellant had been acquitted from the charge of main case, the propriety of law demanded that the appellant should also be acquitted from the charge of present case, which was offshoot of main case---Appeal against conviction was allowed, in circumstances.

Manjhi v. The State PLD 1996 Karachi 345 and Fida Hussain v. The State 2012 PCr.LJ 226 ref.

Yasir Chaudhry v. The State 2012 MLD 1315 rel.

Abdul Rehman Bhutto and Shakeel Ahmed Abro for Appellant.

Ali Anwar Kandhro, Additional Prosecutor General Sindh for the State.

Date of hearing: 1st January, 2025.

Judgment

Muhammad Saleem Jessar, J.---Through instant criminal appeal, the appellant has called in question the Judgment dated 25.07.2024 (impugned judgment) penned down by learned Additional Sessions Judge-II, Kandhkot, vide Sessions Case No.48 / 2024 (re: State v. Mir Nooroze Ali Domki). The case is outcome of Crime No.75/2024, registered at P.S A-Section, Kandhkot, for offence under Sections 23(1)(a) and 25 of Sindh Arms Act, 2013. After recording evidence and determination of points, the trial Court held the appellant guilty of charge under section 25, Sindh Arms Act, 2013, convicted and sentenced him to undergo R.I. for 10(ten) years, and to pay fine of Rs.200,000/-. In case of default, the appellant was directed to undergo S.I. for two years more. However, the benefit of Section 382-B, Cr.P.C was extended to the appellant/ convict.

1. According to the case of prosecution, on 18.03.2024, at about 1200 hours, the appellant was allegedly apprehended by Sadar Ali and Noor Muhammad, both by caste Shaikh, at Daya Muhalla of Kandihkot town and an unlicensed Pistol with magazine containing 03 live bullets was recovered from him; whereafter, they took and handed over the custody of appellant along with recovered weapon and a GLI Car in accidented condition to HC Abdul Jabbar, being duty officer at PS A-Section, Kandhkot, who finding the aforementioned weapon unlicensed sealed it under memo and booked the appellant in this case. Besides, another FIR vide Crime No.74/2024, for offence under section 365-B, P.P.C. was also lodged by one Shaman Ali Shaikh against the appellant at the same police station at 1230 hours.

2. A formal charge was framed against the accused, to which he pleaded 'not guilty' and claimed to be tried.

3. In order to prove its case, the prosecution examined and relied upon the evidence of in all five witnesses i.e. complainant/author HC Abdul Jabbar, mashir/eye-witness Noor Muhammad Shaikh, IO/ASI Muhammad Anwar, incharge Malkhana WPC Sadam Hussain and dispatch official PC Niaz Muhammad. They exhibited several documents in their evidence.

4. In his statement under section 342, Cr.P.C, the appellant/accused denied the prosecution case and claimed to be innocent and implicated at the behest of complainant of main case vide Crime No.74/2024. However, neither he examined himself on oath nor produced any witness in his defence.

5. After formulating the points for determination. recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court vide impugned judgment convicted and sentenced the appellant / accused, as stated above. Against said judgment, the appellant has preferred instant appeal.

6. Learned counsel for the appellant submits that the offensive weapon was foisted upon the appellant at the behest of complainant of main case Crime No.74/2024. He further submits that the appellant has been acquitted of the charge of said main case and this being offshoot case, therefore, the appellant is entitled to be acquitted in this case as well.

7. Learned Addl. Prosecutor General does not support the impugned judgment and submits that since the appellant has been acquitted from charges of above-mentioned main case, therefore he has no objection for grant of instant appeal and acquittal of the appellant in this case in the light of dicta laid down in the cases reported as Manjhi v. The State (PLD 1996 Karachi 345) and Fida Hussain v. The State (2012 PCr.LJ 226).

8. I have heard learned Counsel for the appellant as well as learned Addl. P.G for the State and have perused the material available on the record.

9. From perusal of the record it appears that the recovery shown from the appellant originates from the incident of Crime No.74/2024 lodged by one Shaman Ali Shaikh at same police station for offence under section 365-B, P.P.C. alleging abduction of his wife Mst. Asia on 18.3.2024, at 12.00 o'clock, by the appellant and his brother Sheroz Khan on gunpoint in a car; however, due to accident of the car, the appellant was apprehended along with pistol being allegedly carried by him and was produced before police. From perusal of judgment dated 29.06.2024 rendered in the main case based on Crime No.74/2024, copy whereof is available on record, it appears that the trial Court has acquitted the appellant, mainly for the reason that alleged abductee Mst. Asia did not support the prosecution case, stating that no such incident had occurred. It is surprising to note that the trial Court, on one hand, believing the evidence of Mst. Asia, the alleged abductee of Crime No.74/2024, acquitted the appellant of the charge in said crime, then on what basis the evidence of mashir/eye-witness Noor Muhammad, who had produced the appellant before police claiming to have apprehended him along with the weapon after the incident of Crime No.74/2024, was believed. It appears that the trial Court has not properly appreciated the entire material and not applied judicious mind to evaluate/appreciate the facts and circumstances of case in hand. In such circumstances, the other oral and documentary evidence brought on record, is of no effect: rather, the very recovery of offensive weapon becomes doubtful.

2025 M L D 607

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

Imran Khan Brohi and another---Appellants

Versus

The State---Respondent

Criminal Bail Application No. S-73 of 2024, decided on 15th April, 2024.

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1898), S. 489-F---Dishonestly issuing a cheque---Pre-arrest bail, confirmation of---Further inquiry---Accused-petitioners were charged for issuing cheques dishonestly, which were dishonoured when presented before the concerned bank---No doubt the applicants were nominated in the FIR; however, it was registered with an inordinate delay of about 47 days, for which no plausible explanation had been furnished by the prosecution---Delay in criminal cases was always deprecated by the superior Courts---As far as the amount in question was concerned, the applicants had placed on record number of documents through statements, which on perusal revealed that the parties had strained relations over some business transactions; hence, had disputed the claim of each other---In view of earlier litigation between parties, the element of mala fide on the part of complainant could not be ruled out---Hence, the basic ingredients for grant of pre-arrest bail were very much attracted and applicable to the case---Moreover, there were disputed facts which were to be thrashed out by the Trial Court after recording pro and contra evidence of the parties at trial---Hence, the case against the applicants required further enquiry within the meaning of subsection(2) to S.497, Cr.P.C.---Consequently, bail application was allowed and interim pre-arrest bail granted to the applicants earlier was confirmed, in circumstances.

Ch. Saeed Ahmed Khalil v. The State and others 2023 SCMR 1712; Muhammad Imran v. The State and others 2023 SCMR 1152; Zafar Nawaz v. The State 2023 SCMR 1977; Abdul Rasheed v. The State and another 2023 SCMR 1948; Adnan Shehzad v. The State and another 2021 PCr.LJ 914; Shahid Hussain v. The State 2021 PCr.LJ Note 88; Muhammad Shabbir v. The State and others 2020 YLR Note 22 and Muhammad Azhar Iqbal v. The State and another 2021 PCr.LJ 2189 ref.

Ahmed Shakeel Bhatti and others v. The State and others 2023 SCMR 1 and Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427 rel.

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

----Ss. 497 & 498---Bail---Observations made in bail order---Scope---Observations made in the bail order are tentative in nature, which should not influence the Trial Court, in any manner, while conducting trial of the case. [p. 610] B

Abdul Rehman Mughal along with the applicants (on bail).

Ali Anwar Kandhro, Addl. Prosecutor General, Sindh for the State.

Nadeem Ahmed Khoso along with the Complainant.

Date of hearing: 15th April, 2024.

Order

Muhammad Saleem Jessar, J.---Through instant bail application, Applicants Imran Khan and Kabeer Ahmed, both sons of Rahim Bux, by caste Brohi, seek their admission to pre-arrest bail in Crime No.107 of 2023, registered with Police Station City, Jacobabad, for offence punishable under Section 489-F, P.P.C. The applicants filed anti-cipatory Bail Application bearing No.987/2023 before the Court of Sessions, which later was assigned to learned Additional Sessions Judge-I/MCTC, Jacobabad, who after hearing the parties as well as the Prosecutor declined such plea of the applicants through his order dated 24.01.2024; hence, instant bail application has been maintained.

1. Learned Counsel submits that prior to registration of FIR of this case the applicants had filed an application under sections 22-A and 22-B, Cr.P.C vide Cr. Misc. Application No.892/2023 before the Ex-Officio Justice of Peace, Jacobabad against the complainant of this case and others, which by order dated 13.09.2023 was disposed of; hence the complainant filed instant case against them. The main contention of learned Counsel for the applicants is that the applicants had purchased cars from the complainant and had delivered blank cheques to him as guarantee and that the applicants had paid entire amount to the complainant and had also returned files of the cars except three cars but they have not returned the cheques issued by the applicants, as they intended to extort more amount from the applicants. He further submits that after furnishing surety before this Court the applicants have joined the trial before the trial Court and have never misused the concession. As lar alleged cheque is concerned, per learned Counsel, the applicants have disputed the same by submitting documentary evidence, which is yet to be considered and determined by the trial Court; hence, in such a situation the case against the applicants requires further enquiry, therefore, prays for grant of bail application. In support of his contentions, he places reliance upon the cases reported as Ch. Saeed Ahmed Khalil v. The Stale and others (2023 SCMR 1712), Muhammad Imran v. The State and others (2023 SCMR 1152), Zafar Nawaz v. The State (2023 SCMR 1977), Abdul Rasheed v. The State and another (2023 SCMR 1948), Adnan Shehzad v. The State and another (2021 PCr.LJ 914), Shahid Hussain v. The State (2021 PCr.LJ Note 88), Muhammad Shabbir v. The State and others (2020 YLR Note 22) and Muhammad Azhar Iqbal v. The State and another (2021 PCr.LJ 2189).

2. Learned Addl. P.G. submits that since there are disputed facts, therefore, in the light of dicta laid down by the learned Apex Court in the case of Ahmed Shakeel Bhatti and others v. The State and others (2023 SCMR 1), he has no objection for grant of bail application.

2025 M L D 618

[Sindh]

Before Omar Sial, J

Muhammad Touheed---Applicant

Versus

The State---Respondent

Criminal Bail Application No. 80 of 2024, decided on 18th March, 2024.

Criminal Procedure Code (V of 1898)---

----S. 497(1), third proviso---Penal Code (XLV of 1860), Ss. 302, 324, 394, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, robbery, abetment, common intention---Bail, refusal of---Plea of statutory delay in conclusion of trial rejected---Accused were charged for committing murder of the nephew of complainant and causing firearm injuries to his other nephew during robbery---Perusal of the case diaries reflected that on four dates of hearing, the case was adjourned either due to the absence of a co-accused (who was on bail), or due to absence of their counsel---Record showed that on 15 dates of hearing, counsel for the complainant remained absent and on 09 dates of hearing, application for adjournment was moved by the counsel for the complainant and matter was adjourned---Moreover, it was noticed from the case diaries that the complainant and his witnesses remained present on most of the dates when the case was fixed for hearing---Contributory factors in the delay of the trial included the accused moving applications for the case to be transferred to a common court (as initially it proceeded before the Anti-Terrorism Court), defence counsel for the co-accused remaining absent, Presiding Officer being on leave, demand by the accused that a certain witness be examined first and a witness (Magistrate) remaining absent on a number of occasions---Trial Court too had shown a lax attitude towards proceeding of the trial---Trial Courts were inundated with work, yet a more dynamic approach was required so that justice could be done---Looking at the situation holistically, Court was not inclined to grant the applicant the concession of bail on the ground of statutory delay in trial at present stage---Bail petition was dismissed, in circumstances.

Aamir Mansoob Qureshi for Applicant.

Muhammad Anwar Mahar, DDPP for the State along with PI Naeem Ashraf, Investigating Officer for Respondent.

Qadir Khan Mandokhail for the Complainant.

Date of hearing: 19th February 2024.

Order

Omar Sial, J.---Muhammad Touheed son of Muhammad Dabeer Khan has sought post-arrest bail in crime number 1354 of 2021, registered under sections 302, 324, 394, 109 and 34, P.P.C. at the Orangi Town Police Station. The learned 6th Additional District and Sessions Judge, Karachi-West, on 08.12.2023, dismissed the application filed earlier by the applicant.

1. Briefly, the facts of the case are that the Complainant Badshah Khan, on 07.12.2021, reported to the police that on 06.12.2021 on account of some personal work he had gone to Naval Colony, where at about 9.15 p.m., he received a call from his relative Hidayat Masood who informed him that his nephew Arsalan and Yasir have received bullet injuries and that they have been taken to Abbasi Shaheed Hospital for treatment. On such information Badshah Khan immediately reached the Abbasi Shaheed Hospital and found that his nephew Arsalan aged about 16 years had succumbed to his injuries. Subsequently he came to know that his nephew along with his friend Yasir went on a motorcycle for tuition near the Board office and at about 08.30 p.m. while they were returning and had reached at Ponay Panch Chowrangi near Qatar Masjid, Orangi Town they were intercepted by culprits who tried to snatch their motorcycle and during such incident Arsalan received a firearm injury on the left side of his back and Yasir received injury on his left thigh, however, Yasir had managed to escape on the motorcycle.

2. I have heard the learned counsel for the applicant, and the learned Additional Prosecutor General duly assisted by the learned counsel for the Complainant. My observations and findings are as follows.

3. Learned counsel for the Applicant has pressed this bail application on the ground of statutory delay in trial. Toheed was arrested on 07.12.2021 and has been in custody since then.

4. Section 497(1)(b), Cr.P.C. provides that a person accused of an offence punishable with death, who has been detained for a continuous period exceeding two years shall be released on bail if the delay is not on part of the accused and if the accused is not a previously convicted offender for an offence punishable with death or life imprisonment or who is a hardened, desperate or dangerous criminal or if he is accused of a terrorism offence.

5. Learned Additional Prosecutor General has confirmed that the applicant does not have a past criminal record nor is he a hardened, dangerous or desperate criminal nor has he been accused of a terrorism offence. In these circumstances it is to be seen whether the applicant or his lawyer was in any manner responsible for the delay.

6. Perusal of the case diaries further reflects that on 29.01.2022, 12.07.2022, 05.12.2022 and 09.01.2023, the case was adjourned either due to the absence of a co-accused (who was on bail), or absence of their counsel. It further appears that on 06.02.2023, 22.05.2023, 08.06.2023, 19.06.2023, 26.06.2023, 31.10.2022, 27.11.2022, 05.12.2022, 06.02.2023, 17.04.2023, 22.05.2023, 08.06.2023, 19.06.2023, 26.06.2023 and 01.01.2024 counsel for the complainant remained absent and on 10.10.2022, 19.12.2022, 20.03.2023, 03.04.2023, 08.05.2023, 21.08.2023, 02.10.2023, 23.10.2023, 06.11.2023 application for adjournment was moved by the learned counsel for the Complainant and matter was adjourned.

2025 M L D 625

[Sindh]

Before Muhammad Iqbal Kalhoro, J

Muhammad Zahid ur REhman---Appellant

Versus

The State---Respondent

Criminal Appeal NO. 287 of 2024, decided on 15th October, 2024.

Penal Code (XLV of 1860)---

----Ss. 392, 397 & 34---Robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Ocular account proved---Accused was charged that he along with his co-accused while committing robbery made firing for harassment; a security guard also made firing, due to which one of the accused/appellant sustained firearm injuries---Prosecution had examined three eye-witnesses in the case---All the three eye-witnesses had supported the version of the prosecution regarding dacoity from the franchise, receipt of injury by the appellant from the firing of the security guard, and his arrest from the spot with a 9mm pistol---Prosecution had also examined a Police Officer, who was patrolling the area and on hearing fire shots had reached the spot and had found the appellant lying in an injured condition along with the pistol and arrested him---After a preliminary investigation conducted by said Police Officer he handed over the property as well as accused to the Investigating Officer---There was no shocking contradiction in cross-examination of witnesses to give its benefit to the appellant---Besides complainant, who was not the eye-witness, prosecution had examined three independent witnesses, two of whom were female, who had no ill will against the appellant---All the witnesses had confirmed the story of FIR, arrest of the appellant and his being injured from the firing of the security guard after dacoity---Further, such story was confirmed by the Investigating Officer in his evidence---No worthwhile discrepancy, undermining the prosecution case to the extent of giving its benefit to the appellate had been pointed out in defence---Evidence of the prosecution witnesses was consistent and complimentary to each other and had not been shattered in the lengthy cross-examination---Prosecution by producing seven witnesses had presented the case fully for consideration---Accused was arrested from the spot along with an unlicensed pistol regarding which he could not offer any explanation---Appeal against conviction was dismissed, in circumstances.

Ms. Gulqadam Malik for Appellant.

Ms. Rubina Qadir, APG for the State.

Date of hearing: 15th October, 2024.

Judgment

Muhammad Iqbal Kalhoro, J.---Appellant has been convicted and sentenced under section 392, P.P.C. to suffer R.I. for 05 years with fine of Rs.25000, in case of default to suffer SI for three months more and under section 397, P.P.C. to suffer R.I. for 07 years with fine of Rs.50,000/-, in case of default to suffer SI for three months more vide impugned judgment dated 13.02.2024 rendered by learned IV-Additional Sessions Judge, Karachi West in Crime No.10/2023 under sections 392, 397, 34, P.P.C. of P.S. SITE-B Karachi.

1. As per brief facts of the case, complainant is Manager of Ali enterprises Telenor Franchise situated at Ghani Chorangi, SITE, Karachi. He is not the eye-witness of the incident but has submitted that on 16.01.2024 when he was present at Shershah Chowk at about 4.12 p.m. he received a phone call from his accountant Ahmed regarding dacoity committed in the Franchise. On such information, he reached the Franchise, where he saw a mob of people and a police mobile already available with one injured robber lying on the ground along with his motorcycle, who was taken into custody by the police along with the pistol. He made an enquiry from the staff and was told that at about 3.45 p.m. three armed dacoits wearing shalwar Qameez entered the Franchise, smashed the furniture and robbed Rs.4,70,000/- including personal cash and mobile phone from the staff and security guards. After the dacoity, when the culprits were escaping, their companion who were standing outside made two fires from their pistols to cause harassment to security guard, who however still managed to make firing from his 9mm pistol injuring the appellant, who when fell down as a result, was apprehended by the people at the spot. Police officer ASI Zulfiqar Ali, who was patrolling the area, reached the spot and arrested him at the site along with the pistol. Hence present FIR and another case for possessing an unlicensed pistol were registered against him. After completion of investigation, the charge sheet against the appellant was filed for his trial.

2. In the trial, prosecution examined 07 witnesses including the complainant, the staff of Franchise and relevant police officials along with I.O. of the case, who have submitted all the necessary documents including FSL report, medical report of the accused etc. Statement of appellant thereafter was recorded under section 342, Cr.P.C in which he has denied the allegations against him and has pleaded his innocence.

3. After hearing the prosecution and the accused, learned trial court has recorded conviction and sentence to the appellant in the terms as stated above which he has challenged by means of this appeal.

4. I have heard learned defence counsel and learned APG as well as complainant, who is present in person. Learned defence counsel has submitted that there are a number of contradictions in the prosecution case; the witnesses have not supported each other; no one from the public was made a witness in the case; the distances qua place of incident and arrest of appellant described by the witnesses are different and don't inspire confidence; that against the appellant no criminal record is available and he was not arrested from the spot; and that even names of other accused are not mentioned in the FIR. The prosecution has failed to prove the case, and appellant may be acquitted.

5. On the other hand, learned APG and complainant have supported the impugned judgment.

6. The prosecution as a first witness has examined complainant P.W.1 Muhammad Nasir, who has reiterated story of FIR in his evidence and has produced FIR to support his version. Prosecution has examined P.W.2 Yousif Khan. He is the security guard from whose firing appellant was injured. He has also materially supported the complainant and in detail has narrated the incident in his examination-in-chief. He has submitted that when he was performing duty on the day of incident viz. 16.01.2024, three armed persons covering their faces barged into the office of the franchise and on the show of weapons, committed dacoity of Rs.4,70,000/-, mobile phones and personal belongings of the staff. He has also deposed that culprits had beaten the staff. According to his evidence, after committing dacoity, the culprits left and locked the office from outside but meanwhile one customer came after unlocking the office. Hence, he followed the culprits, and made firing from his weapon injuring the appellant resultantly, who was subsequently arrested by the police along with the pistol and a stolen motorcycle. He has produced relevant photographs of the motorcycle.

7. Prosecution examined Ms. Sundas, Customer Relation Officer (CRO), Telenor Franchise Site as P.W.3. She has also supported the case of prosecution and has given a comprehensive detail of the story of the incident pointing a finger to the appellant as one of the culprits of robbery, who was injured from the security guard's firing and was arrested by the police who had reached the spot. Mst. Fatima has been examined as P.W.4. She is working in the Franchise as CRM. She has also supported versions of the prosecution case in toto. She has described the incident as revealed by the complainant and other witnesses.

8. In all, the prosecution has examined three eye-witnesses in this case. All three eye-witnesses have supported the version of the prosecution case regarding dacoity from the Franchise, receiving injury by the appellant from firing of the security guard, his arrest from the spot with a 9mm pistol. Prosecution has then examined SIP Zulfiqar Ali as P.W.5. he is the police officer, who was patrolling the area and on hearing fire shots had reached the spot and had found the appellant lying in injured condition along with the pistol and had arrested him. He had also collected motorcycle and the pistol along with bullets. He had enquired about the incident from the complainant and other witnesses and prepared such memo. of arrest and recovery at the spot. Subsequently, he brought the appellant at P.S, where he had registered the FIRs against him.

9. After a preliminary investigation conducted by him, he had handed over the property as well as accused to the I.O. who had recorded his statement under section 161, Cr.P.C and the statements of other witnesses during investigation. He has produced all the necessary papers including copies of daily diary to show his movement from P.S to the place of incident and back to P.S.

10. Prosecution has examined P.W.6 Muhammad Saleem, who is the owner of the franchise. He is not the eye-witness and he has narrated the story told to him by his staff. He has further confirmed that he had authorized his Manager Nasir/complainant for registration of FIR by giving him necessary authority letter. Prosecution has examined I.O. as a last witness. The Investigating Officer in his deposition has stated that he had received investigation along with a copy of FIR, medical report of accused, relevant entries, recovered pistol from the security guard and had recorded statements of the police officials, who had reached the spot. He has further stated that after receiving investigation he had inspected the place of incident, recorded statements of witnesses, prepared necessary documents and on culmination of investigation had submitted challan in the court for a trial. He has produced photographs of Franchise, place of incident and entries of Daily Diary, positive FSL report of the pistol recovered from the appellant, the photographs of appellant getting injured from the firing of security guard, falling down from his motorcycle and being apprehended by the people.

11. After the prosecution evidence, statement of appellant was recorded under section 342, Cr.P.C wherein he has simply denied the prosecution case and has pleaded that he had gone to purchase Telenor sim from the Franchise where he had exchanged hot words with the staff, hence he was injured and made accused in this case.

12. With the assistance of learned counsel for parties, I have gone through the evidence of above witnesses and have found no shocking contradiction in cross-examination to give its benefit to the appellant. Besides complainant, who is not the eye-witness, prosecution has examined three independent eye-witnesses, two of them are female, who have no ill will against the appellant. All the witnesses have confirmed the story of FIR, arrest of the appellant and his being injured from the firing of the security guard after dacoity. Further, this story is confirmed by the I.O. in his evidence. P.W. SIP Zulfiqar Ali, who had reached the spot has also supported the circumstantial evidence of commission of the dacoity from Telenor Franchise by the appellant and his accomplices, who however managed to escape from the spot and subsequent arrest of the appellant in the injured condition. No worthwhile discrepancy, undermining the prosecution case to the extent of giving its benefit to the appellant has been pointed out in defence. Evidence of the prosecution witnesses is consistent and complimentary to each other and has not been shattered in the lengthy cross-examination. Prosecution by examining seven witnesses has presented the case fully for a consideration. The appellant was arrested from the spot along with an unlicensed pistol regarding which he could not offer any explanation.

13. Although, the appellant has claimed to have been falsely implicated in this case but no record has been produced by him in defence to doubt the prosecution story and believe him instead. The prosecution story is based not only on the version of I.O., but narration revealed by the eye-witnesses who have got no personal ill will or enmity with the appellant. They are the staff of the Franchise with no axe to grind against the appellant. Appellant's arrest from spot in injured condition along with unlicensed weapon is yet another circumstantial evidence pointing out to his guilt.

2025 M L D 633

[Sindh (Larkana Bench)]

Before Khadim Hussain Soomro, J

Nawab---Applicant

Versus

Ihsan Ali Khan and 3 others---Respondents

Criminal Revision Application No. S-27 of 2023, decided on 31st December, 2024.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3, 4, 5, 6 & 7---Criminal Procedure Code (V of 1898), S. 439---Illegal dispossession of property---Appreciation of evidence---Civil litigation---Scope---Allegation against accused/respondents was that they illegally dispossessed the applicant and his brother issuing threats of murder---Complaint filed by the applicant/complainant was dismissed---Validity---Record reflected that the applicant/complainant purchased the subject land from the respondent in November 2020 through a sale agreement dated 20-11-2020, and the possession thereof was handed over to the applicant/complainant at that time on part payment, while the remaining amount was to be paid by the applicant in installments---Execution of the agreement, part payment of consideration amount and the possession in pursuance of the sale agreement was admitted by respondent No 1---Possession of subject land was protected by law, even in cases where full ownership had not yet been transferred---Complainant had been in possession in pursuance of the sale agreement and no clause in the agreement explicitly allowed the respondent to reclaim possession forcibly in case the full payment had not been made---Respondent could not take possession by force---Instead, legal proceedings would have to be initiated---Forceful eviction of the complainant would generally be not permissible under law without a Court order---Record showed that respondent No. 1 filed a suit for declaration, cancellation of agreement, possession and permanent injunction and the applicant also had filed a suit for specific performance of a contract, which was pending adjudication in the Civil Court---As long as the suits were pending, the Trial Court was the proper forum for resolving disputes regarding the terms and conditions of the sale agreement---Taking possession without the Court's order would violate the principle of due process, which ensured that legal disputes were settled through a fair trial, not force or unilateral action---Thus, no one was allowed to take possession by force while the suits were pending in the Court---Respondent must wait for the Court's decision on the matter and any dispossession without the Court's order was illegal and unlawful---Provisions of the Illegal Dispossession Act, 2005, were applicable universally and were not confined solely to cases involving land grabbers or individuals with mala fide intent---Determination of civil rights, ownership, contractual obligations or any other related matters under the pending civil suit remained within the exclusive domain of the civil Court---Findings or directions in the present judgment shall not prejudice or influence the outcome of those proceedings---Civil Court shall independently adjudicate upon the issues before it based on the evidence and arguments presented in accordance with the applicable law, free from any inference drawn from this judgment---In view of the foregoing, the impugned order of the Trial Court was set aside---Cognizance of the matter was deemed to have been taken under the provisions of the Illegal Dispossession Act, 2005---Criminal revision petition was disposed of.

2011 YLR 677 and 2020 PCr.LJ 2020 ref.

Muhammad Ismail Nizami and another v. Javed Iqbal and another 2016 SCMR 2039; Shaikh Muhammad Naseem v. Mst. Farida Gull 2016 SCMR 1931; Mst. Gulshan Bibi and others v. Muhammad Sadiq and others PLD 2016 SC 769 and Seema Fareed and other's case 2008 SCMR 839 rel.

Ghulam Dastghir A Shahani for Applicant.

Habibullah G. Ghouri for Respondents.

Anwer Ali Kandhro, Additional Prosecutor General Sindh for the State, along with Muhammad Aslam Magsi, Mukhtiarkar Mehar.

Date of hearing: 9th October, 2024.

Order

Khadim Hussain Soomro, J.---Through this Criminal Revision Application, the applicant has impugned the order dated 28.02.2023, passed by learned 4th Additional Sessions Judge, Dadu, in Criminal Complaint bearing No.06 of 2023, under Sections 3, 4, 5, 6 and 8 of the Illegal Dispossession, Act, 2005 whereby the complaint filed by the applicant/complainant was dismissed. Hence, the applicant prefers this Revision.

1. The brief facts of the case are that the applicant/ complainant has the business of real estate in the local limits of Taluka Mehar while the accused is the feudal lord of the locality. The applicant/complainant purchased landed property bearing survey No. 299 (5-2) and survey No. 308 (1-34), a total area of 6 Acres 36 Ghuntas in Deh Betto Taluka Mehar District Dadu (Subject Land) from the respondent No. 1/accused in November 2020, through sale agreement dated 20-11-2020. The possession of the subject land was handed over to the applicant/complainant at that time on part payment, while the remaining amount was to be paid by the applicant in instalments. In case of failure from either side, the fine amount was fixed. The applicant/complainant spent a huge sum of Rs 70,00 000/ (Rupees Seventy Lacks) on the subject land for levelling and drainage to make it suitable for sale and use for residential purposes. The respondent, Ihsan Ali Khan Jatoi, at first revoked the contract of sale agreement by sending an illegal, illogical and unjustified legal notice, which was adequately replied to by the applicant/complainant as there was no such condition to revoke the sale agreement or by making false pretext delay in the payment of remaining consideration amount and revocation of the contract. However, there was only one security clause for the interest of the seller to claim a fine amount of Rs 50,000,00/ (Rupees Fifty Lacs) in case of default from their side. The complainant paid most of the consideration amount as per terms and conditions settled in the agreement and was waiting for the seller / accused to receive the balance amount outstanding against them and execute the registered sale deed, but the delay was caused by the accused consequently the Flood came which endangered and damaged the whole infrastructure and lives of the people in the locality. On 26-11-2022, at 11 AM when, the complainant, along with his brother Ali Asghar, son of Khan Muhammad Mahessar and Zulfiqar Ali, son of Muhammad Hassan by caste Sodhar resident of village Banhon Sodhar Taluka Mehar, was present at the subject land, then accused Ihsan Ali Khan, son of Abdul Hameed Khan Jatoi, resident of Village Betto Taluka Mehar District Dadu, along with 8 unknown accused persons duly armed with deadly weapons came there, and illegally dispossessed the applicant, and his brother issuing threats of murder that if they ever come again to the subject land, they would face dire consequence. By doing such an act of illegal dispossession, the accused had committed an offence under Section 3(1) of the Illegal Dispossession Act, 2005 (The Act). hence, they were liable to be convicted under Section 3(2) of the Act. The complainant/ applicant approached the trial court to take cognizance of the offence with the following prayers:

(A) That this Honourable Court may be pleased to take cognizance of the offence under section 3 of Illegal Dispossession Act, 2005 and punish the accused for the offence committed by them.

(B) That the accused may be directed to hand over vacant possession of the land to the complainant and in case of the failure from the part of accused the concerned SHO may be called and directed to take possession and hand over the same to the complainant.

(C) Whatever relief this Honourable Court deems fit and proper in the circumstances.

1. After filing of the complaint, the report from concerned Mukhtiarkar and the SHO PS Mehar was called; meanwhile, the accused, No: 1, appeared through his counsel and submitted objections to the complaint. In the wake of considering the submissions and the reports from concerned Mukhtiarkar and SHO, the trial court passed the impugned order, dated 28-2-2023, wherein the complaint of the complainant was dismissed by the trial court relying on the case law reported in 2011 YLR 677 and 2020 PCr.LJ 2020 (Balochistan). Hence, the instant Revision.

2. Learned counsel for the applicant/complainant submits that the subject land was purchased by the applicant through an agreement to sale dated 20-11-2020, for consideration and possession of the subject land was handed over to him; he further submits that the execution of the sale agreement has not been denied by the respondent/accused; even in the legal notice issued by the respondent which was filed along with the statement filed by learned counsel for the applicant admits the execution of the agreement; the counsel further argue that the applicant has set forth the incident of dispossession which is categorically mentioned in the paragraph No. 09 of his complaint; the counsel refers the legal notice wherein the respondent claim that he has taken the possession back from the applicant, which is not warranted by the law; he further argues that the Mukhtiarkar report demonstrates that the same was prepared by the Tapedar of the beat and not by the Mukhtiarkar; he further reffered to the police report which reveals that statement of the witnesses who supported the compliant.

3. Learned counsel for the respondent submits that, admittedly, the respondent/ accused is an owner of the subject land; that the claim of the applicant on the basis of an unregistered sale agreement, which does not create any right or title in his favour; that the Mukhtiyarkar report also reflects that the respondent No 1 is an owner of the subject property, and he is in possession; as the agreement does not exist and ceased to have any legal effect; therefore the respondent had taken the possession back from the applicant.

4. I have heard the arguments advanced by the learned counsel for the applicant, the respondents, and the learned Additional Prosecutor General. Furthermore, I have meticulously examined the material available on the record.

5. The record reflects that the applicant/complainant purchased the subject land from the respondent in November 2020 through a sale agreement dated 20-11-2020, and the possession thereof was handed over to the applicant/complainant at that time on part payment, while the remaining amount was to be paid by the applicant in instalments. It is worth noting that the execution of the agreement, part consideration amount and the possession in pursuance of the sale agreement admitted by respondent No. 1. The possession of subject land is protected by law, even in cases where full ownership has not yet been transferred. The complainant has been in possession pursuance of the sale agreement, and no clause in the agreement explicitly allows the respondent to reclaim possession forcibly in case the full payment has not been made. The respondent cannot take possession by force. Instead, legal proceedings would have been initiated. Forceful eviction of the complainant would generally not be permissible under law without a court order. This would constitute an illegal act.

6. It is a matter of fact and the record that respondent No. 1 filed a suit for Declaration, Cancellation of agreement, Possession and Permanent Injunction being F.C Suit No. 22 of 2023, and the applicant also has a Suit for Specific Performance of a contract, which is pending adjudication in the court of senior Civil Judge 1 Mehar. As long as the suits are pending, the trial court is the proper forum for resolving disputes regarding the terms and conditions of the sale agreement. Taking possession without the court's order would violate the principle of due process, ensuring that legal disputes are settled through a fair trial, not force or unilateral action. In light of the above principles, no one is allowed to take possession by force while the suits are pending in the court. The respondent must wait for the court's decision on the matter, and any dispossession without the court's order is illegal and unlawful against the law. Reliance can be placed in the case of Muhammad Ismail Nizami and another v. Javed Iqbal and another 2016 SCMR 2039.

7. Another important aspect in the instant matter, which is worth consideration, is that if individuals were allowed to take possession of property by force, it would undermine the rule of law and create chaos in society. Property rights are fundamental to social order, and allowing forceful possession would lead to the erosion of legal protections for property owners and occupiers. People would resort to self-help measures instead of seeking legal resolution through courts, resulting in violence, vigilantism, and widespread disputes. This would erode trust in the legal system, as individuals would no longer feel secure in their rights to property or the protection of those rights guaranteed by the State in the supreme law of the land. Such a shift could destabilize the social and economic framework, as people might hesitate to invest in property or engage in contracts, knowing that their rights could be arbitrarily violated. Overall, it would create an atmosphere of fear, instability, and injustice, harming both individual security and broader societal harmony.

8. At this stage, it is pertinent to refer to the operative portions of the judgment in the case of Shaikh Muhammad Naseem v. Mst. Farida Gull, 2016 SCMR 1931, in which the esteemed Supreme Court has elucidated two key aspects concerning the scope and intent of the Act The operative parts of the judgment are reproduced hereunder:-"

"3....As the term 'property grabbers' appearing in the preamble of the Act has been used in general sense, it cannot be identified with any particular category of offenders in order to restrict the scope and applicability of the Illegal Dispossession Act, 2005 to a particular category of offenders. Additional the substantive provision of Illegal Dispossession Act i.e. section 3 expressly uses general term such as 'no one' and 'whoever' for the offender. This clearly indicates that the widest possible meaning is to he attributed to these terms. Thus the provisions of section 3 clearly demonstrate that whosoever commits the Act of illegal dispossession as described in the Illegal Dispossession Act, 2005 against a lawful owner or a lawful occupier, he can be prosecuted under its provisions without any restriction."

"5....No one can be allowed to take law in his own hands and unlawfully dispossess an owner or lawful occupier of an immovable property and then seek to thwart the criminal proceedings initiated against him under the Illegal Dispossession Act, 2005 on the pretext that civil litigation on the issue is pending adjudication between the parties in a court of law. Therefore, irrespective of any civil litigation that may be pending in any Court, where an offence, as described in the Illegal Dispossession Act, 2005, has been committed, the proceedings under the said Act can be initiated as the same would be maintainable in law."

1. The term "lawful occupier", as used in the Act, can be defined in light of Halsbury's Laws of England Volume 27, Paragraph 1,. According to it, a "lawful occupier" implies that a lawful occupier is one who has legal rights or authority over the property. According to Black's Law Dictionary (11th Edition), a lawful occupier is someone with the legal right to occupy or possess a property. This individual or entity is in possession of the property with legal consent or authority, such as through ownership, lease, or valid contractual arrangement. It is not occupying the property in an unlawful or unauthorized manner. In the instant matter, the applicant has occupied the subject land in pursuance of the sale agreement, the execution of which has not been denied by the respondent.

2. The lawful possession is indeed protected under the Transfer of Property Act of 1882. This Act provides legal recognition and safeguards for individuals who possess property under valid ownership or agreements. Several sections of the Act above address the concept of lawful possession, particularly in relation to transfer, rights, and obligations. Section 53-A of the Transfer of Property Act, 1882 is reproduced as under:-

53-A. Part performance. Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty;

and the transferee has, in part performance of the contract, taken possession of the property or any part thereof or the transferee, being already in possession continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, Then notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by me terms of the contract:

Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof".

1. The section described above provides a shield to the transferee in possession under an unregistered agreement to transfer property, protecting them from dispossession by the transferor as long as they fulfil their contractual obligations. The principle underlying the protection of lawful possession is to ensure that individuals in rightful occupation of property are not unjustly evicted or deprived of their rights without following due legal process.

2. Turning to the impugned order, the learned trial court has observed that since the respondent/accused does not belong to the land grabber and land mafia, the provision of the Act is not applicable. In this regard, the authoritative judgment rendered by the Apex Court of Pakistan in the case of Mst. Gulshan Bibi and others v. Muhammad Sadiq and others (PLD 2016 SC 769), it has been unequivocally established that the provisions of the Illegal Dispossession Act, 2005, are applicable universally and are not confined solely to cases involving land grabbers or individuals with mala fide intent. The court clarified that the scope of the Act mentioned above extends to protecting the rights of lawful owners and occupiers against illegal dispossession by any individual, irrespective of their status or intent. Consequently, any undue emphasis placed by the learned trial court on the restraint of the Act to "land grabbers" or "land mafias" constitutes an erroneous interpretation of the law, as such a restrictive construction is neither warranted by the statutory language nor supported by the principles laid down by the apex court of Pakistan. Therefore, the broader protective scope of the Act must be upheld to ensure justice and safeguard the rights of lawful owners and occupiers.

3. Reverting to another observation of the learned trial court suggesting that the applicant should seek remedy exclusively before a civil court due to a civil dispute. This does not preclude the applicant from pursuing concurrent criminal proceedings. The Supreme Court, in multiple judgments, has deliberated on the coexistence of criminal and civil proceedings arising from the same set of transactions, particularly those involving provisions of the criminal law and contractual civil liabilities. The Supreme Court of Pakistan has consistently treated these proceedings as distinct and separate in nature, emphasizing that both can proceed concurrently. This distinction arises from the differing standards of proof and objectives governing criminal and civil matters, where criminal conviction pertains to criminal law consequences, while civil liability addresses compensatory or contractual obligations. In the case of Seema Fareed and others (2008 SCMR 839), the court observed as follows:-"

4. ... Interpretation placed by Honourable, Judge of the High Court on the provisions of the contract as well as the repealing statute does not suffer from any misconception of law or violation of the settled principles laid down by this court. It is well-settled that, a criminal case must be allowed to proceed on its own merits and merely because civil proceedings relating to same transaction have been instituted it has never been considered to be a legal bar to the maintainability of criminal proceedings which can proceed concurrently because conviction for a criminal offence is altogether a different matter from the civil liability. While the spirit and purpose of criminal proceedings is to punish the offender for the commission of a crime the purpose behind the civil proceedings is to enforce civil rights arising out of contracts and in law both the proceedings can co-exist and proceed with simultaneously without any legal restriction."

2025 M L D 651

[Sindh]

Before Muhammad Karim Khan Agha, J

Saeed-ur-rahman---Appellant

Versus

The State---Respondent

Criminal Jail Appeal No. 385 of 2022, decided on 15th October, 2024.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---First Information Report lodged with promptitude---Accused was charged that he along with his co-accused in furtherance of their common intention committed murder of the brother of complainant by giving axe blows---Section 154 Cr.P.C statement which led to the lodging of the FIR was made with promptitude---Slight delay was explained by the complainant that after being informed about the incident he rushed to the hospital where he found his brother dead on account of hatchet cuts to his face and mouth and then recorded his S.154 Cr.P.C statement at the hospital---Thus any slight delay in lodging the FIR had been fully explained---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt---Appeal against conviction was dismissed accordingly.

Azeem Khan v. Mujahid Khan 2016 SCMR 274; Fayyaz Ahmed v. State 2017 SCMR 2026 and Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account proved---Accused was charged that he along with his co-accused in furtherance of their common intention committed murder of the brother of complainant by giving axe blows---Ocular account of the incident had been furnished by complainant, father and brother of accused---Admittedly, the complainant's evidence was based on hearsay as regards the murder but he did specifically name the appellant as the one who murdered the deceased by hatchet and did personally see the hatchet injuries on the face and shoulders of the deceased at the hospital---Complainant made no material improvements in his evidence from his S.154, Cr.P.C statement---Complainant was also related to the accused and as such had have no reason to implicate him in a false case as there was no ill will or enmity between them and had every reason to try and save him from any culpability---Complainant confirmed the presence of father of the accused at the hospital---According to the evidence of father of the accused his son/accused was annoyed with his sister's marriage to the deceased and had sent his wife and children away to his village as he thought his son had already made up his mind to murder the deceased---Accused admitted killing deceased so the witness told his other son to go and see if the deceased was still alive---Other son of the witness informed him that the deceased had been killed by hatchet blows---Accused and the deceased had every reason to be with each other as they were related to each other and were staying at their godown---Accused also had a motive to kill the deceased as he disapproved of the wedding with his sister as per the FIR---Neither the father nor the brother of the accused had any reason to implicate the accused who was their real son/brother in a false case---Both of them gave their evidence in a straightforward manner and were not dented during cross-examination and their evidence was found to be trustworthy, reliable and confidence inspiring---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt---Appeal against conviction was dismissed accordingly.

Hashim Qasim v. The State 2017 SCMR 986; Rahat Ali v. The State 2010 SCMR 584; Muhammad Asif v. The State 2017 SCMR 486; Mst. Gul Nissa v. Muhammad Yousuf PLD 2006 SC 556; Akhtar v. The State 2020 SCMR 2020 and Fayyaz Ahmad v. The State 2017 SCMR 2026 ref.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of incriminating material---Reliance---Scope---Accused was charged that he along with his co-accused in furtherance of their common intention committed murder of the brother of complainant by giving axe blows---Recovery of the blood at the crime scene along with the hatchet (murder weapon) produced positive chemical reports---Said articles were recovered by the police who had no enmity or ill will with the appellant and had no reason to falsely implicate him in this case by planting the hatchet at the crime scene---In such like cases the evidence of a police witness was as good as any other witness---Recovered mobile phone of the deceased from the accused also supported the prosecution case---Blood stained shalwar of the accused and the torn pocket of the qameez of the father also supported the prosecution case---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt---Appeal against conviction was dismissed accordingly.

Habib-ur-Rehman Jiskani for Appellant.

Muhammad Iqbal Awan, Addl. Prosecutor General, Sindh and Mumtaz Ali Shah, Assistant Prosecutor General Sindh for the State.

Date of hearing: 8th October, 2024.

Judgment

MUhammad Karim Khan Agha, J.---Appellant Saeed-ur-Rehman was tried in the Model Criminal Trial Court/Ist Additional Sessions Judge, Malir Karachi in Sessions Case No. 1031 of 2021 in respect of Crime No. 277 of 2021 registered under Sections 302, 34 P.P.C. at P.S. Shah Latif Town, Karachi and after a full-fledged trial vide judgment dated 11.05.2022 he was convicted under section 302, P.P.C. and sentenced to suffer imprisonment for life. He was also directed to pay fine of Rs.20,00,000/- and in default of payment he shall further undergo simple imprisonment of six months more. Benefit of section 382-B, Cr.P.C. was extended to the appellant.

1. The brief facts of the case, as per FIR lodged by complainant Shahzeb Khan son of Asad Ali through his section 154, Cr.P.C. statement recorded on 22.02.2021, are that on 22.02.2021 at night time inside the house of complainant's brother appellant along with other co-accused in furtherance of their common intention gave Axe (Kulhari) blows to brother of complainant namely Shahzad Ali aged about 31 years who got injuries on his face and mouth and succumbed to death on the spot, hence the instant FIR was registered.

2. After completion of investigation I.O. submitted report under section 173, Cr.P.C against the accused and two others however the charge was only framed against the accused as the other accused had been placed in column No.2 of the charge sheet on the basis that there was hardly any evidence against them except their names appearing in the FIR. The accused plead not guilty to the charge and claimed trial.

3. The prosecution in order to prove its case examined 6 witnesses and exhibited various documents and other items. The statement of accused was recorded under Section 342, Cr.P.C in which he admitted many of the allegations made against him but denied the murder of the deceased. After appreciating the evidence on record the trial court convicted the appellant and sentenced him as stated earlier in this judgment hence, the appellant has filed this appeal against his conviction.

4. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

5. Learned counsel for the appellant has contended that the appellant is innocent and has been falsely implicated in this case; that there was no eye-witness to the murder; that the last seen evidence is not sufficient to convict the appellant without corroboration from an unimpeachable source of which there is none; that the appellant did not confess to the murder before a judicial magistrate and no recovery was made from him and thus for any or all of the above reasons the appellant should be acquitted of the charge by being extended the benefit of the doubt. In support of his contentions he placed reliance on the cases of Hashim Qasim v. The State (2017 SCMR 986), Rahat Ali v. The State (2010 SCMR 584) and Muhammad Asif v. The State (2017 SCMR 486).

6. On the other hand learned Additional Prosecutor General Sindh appearing on behalf of the State has fully supported the impugned judgment. In particular he has placed reliance on the last seen evidence which was corroborated by the medical evidence and recovery of the murder weapon (hatchet) and has preyed for the dismissal of the appeal. In support of his contentions he has placed reliance on the cases of Mst. Gul Nissa v. Muhammad Yousuf (PLD 2006 SC 556), Akhtar v. The State (2020 SCMR 2020) and Fayyaz Ahmad v. The State (2017 SCMR 2026).

7. I have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by learned counsel for the appellant, and the impugned judgment with their able assistance and have considered the relevant law including the case law cited at the bar.

8. At the outset based on my reassessment of the prosecution oral evidence, medical evidence including post mortem report, blood recovered at the crime scene along with hatchet and blood stained relli I find that the prosecution has proved beyond a reasonable doubt that on the night of 21/22-02-2021 Shahzad Ali (the deceased) was murdered by hatchet blows inside the Godown cum house of Shahzade Ali situate at street No.1 Dhani Parto Goth Razzakabad Malir Karachi.

9. The only question left before me therefore is whether it was the appellant who murdered the deceased at the said time, date and location?

10. After my reassessment of the evidence I find that the prosecution has proved beyond a reasonable doubt the charge against the appellant for which he was convicted keeping in view that each criminal case is based on its own particular facts, circumstances and evidence for the following reasons and uphold his conviction;

(a) Although the FIR was registered with promptitude and the appellant was named in the FIR as the person who murdered the deceased this allegation has been made against the appellant on the basis of hearsay evidence as there was no eye-witness to the murder and as such the case is based on circumstantial evidence which the court must view with great care and caution. In this respect reliance is placed on the case of Azeem Khan v. Mujahid Khan (2016 SCMR 274) which held as under;

"In cases of circumstantial evidence, the Courts are to take extraordinary care and caution before relying on the same. Circumstantial evidence, even if supported by defective or inadequate evidence, cannot be made basis for conviction on a capital charge. More particularly, when there are indications of design in the preparation of a case or introducing any piece of fabricated evidence, the Court should always be mindful to take extraordinary precautions, so that the possibility of it being deliberately misled into false inference and patently wrong conclusion is to be ruled out, therefore hard and fast rules should be applied for carefully and narrowly examining circumstantial evidence in such cases because chances of fabricating such evidence are always there. To justify the inference of guilt of an accused person, the circumstantial evidence must be of a quality to be incompatible with the innocence of the accused. If such circumstantial evidence is not of that standard and quality, it would be highly dangerous to rely upon the same by awarding capital punishment. The better and safe course would be not to rely upon it in securing the ends of justice."

(i) Likewise in the case of Fayyaz Ahmed v. State (2017 SCMR 2026) the great care and caution in which circumstantial evidence needed to be scrutinized was emphasized especially when dealing with a capital case in the following terms;

"To believe or rely on circumstantial evidence, the well settled and deeply entrenched principle is, that it is imperative for the Prosecution to provide all links in chain an unbroken one, where one end of the same touches the dead body and the other the neck of the accused. The present case is of such a nature where many links are missing in the chain.

To carry conviction on a capital charge it is essential that courts have to deeply scrutinize the circumstantial evidence because fabricating of such evidence is not uncommon as we have noticed in some cases thus, very minute and narrow examination of the same is necessary to secure the ends of justice and that the Prosecution has to establish the case beyond all reasonable doubts. resting on circumstantial evidence. "Reasonable Doubt" does not mean any doubt but it must be accompanied by such reasons, sufficient to persuade a judicial mind for placing reliance on it. If it is short of such standard, it is better to discard the same so that an innocent person might not be sent to gallows. To draw an inference of guilt from such evidence, the Court has to apply its judicial mind with deep thought and with extra care and caution and whenever there are one or some indications, showing the design of the Prosecution of manufacturing and preparation of a case, the Courts have to show reluctance to believe it unless it is judicially satisfied about the guilt of accused person and the required chain is made out without missing link, otherwise at random reliance on such evidence would result in failure of justice".

It may also be kept in mind that sometimes the investigating agency collects circumstantial evidence seems apparently believable however, if the strict standards of scrutiny are applied there would appear many cracks and doubts in the same which are always inherent therein and in that case Courts have to discard and disbelieve the same." (bold added)

(b) Turning to the circumstantial evidence in terms of last seen evidence. The test for last seen evidence has been set out in the following cases in the following terms;

(i) In Fayyaz's case (Supra) at P.2030 at Para 7 it was held as under regarding last seen evidence;

"The last seen evidence is one of such categories of evidence. In this category of cases some fundamental principles must be followed and the Prosecution is under-legal obligation to fulfill the same, some of which may be cited below:-

(i) There must be cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused and those reasons must be palpable and prima facie furnished by the Prosecution.

(ii) The proximity of the crime scene plays a vital role because if within a short distance the deceased is done to death then, ordinarily the inference would be that he did not part ways or separated from the accused and onus in this regard would shift to the accused to furnish those circumstances under which, the deceased left him and parted ways in the course of transit.

(iii) The timing of that the deceased was last seen with the accused and subsequently his murder, must be reasonably close to each other to exclude any possibility of the deceased getting away from the accused or the accused getting away from him.

(iv) There must be some reasons and objects on account of which the deceased accompanied the accused for accomplishment of the same towards a particular destination, otherwise giving company by the deceased to the accused would become a question mark.

(v) Additionally there must be some motive on the part of the accused to kill the deceased otherwise the Prosecution has to furnish evidence that it was during the transit that something happened abnormal or unpleasant which motivated the accused in killing the deceased.

(vi) The quick reporting of the matter without any undue delay is essential, otherwise the prosecution story would become doubtful for the reason that the story of last seen was tailored or designed falsely, involving accused person.

Beside the above, circumstantial evidence of last seen must be corroborated by independent evidence, coming from unimpeachable source because uncorroborated last seen evidence is a weak type of evidence in cases involving capital punishment.

(vii) The recovery of the crime weapon from the accused and the opinion of the expert must be carried out in a transparent and fair manner to exclude all possible doubts, which may arise if it is not done in a proper and fair manner.

(viii) The Court has also to seriously consider that whether the deceased was having any contributory role in the cause of his death inviting the trouble, if it was not a pre-planned and calculated murder."(Bold added)

(ii) In the later case of Muhammed Abid v. State (PLD 2018 SC 813) which delved further into the doctrine of "last seen together" evidence it was held as under at P.817 Para 6:

"The foundation of the "last seen together" theory is based on principles of probability and cause and connection and requires 1. cogent reasons that the deceased in normal and ordinary course was supposed to accompany the accused. 2. proximity of the crime scene. 3. small time gap between the sighting and crime. 4. no possibility of third person interference 5. motive 6. time of death of victim. The circumstance of last seen together does not by itself necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime" (bold added).

(c) Returning to the case in hand.

(i)The S.154, Cr.P.C statement which lead to the lodging of the FIR was made with promptitude. Any slight delay is explained by the complainant being informed about the incident who then rushed to the hospital where he found his brother dead on account of hatchet cuts to his face and mouth and then recorded his S.154, Cr.P.C statement at the hospital. Thus any slight delay in lodging the FIR has been fully explained. In this respect reliance is placed on the case of Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872).

(ii) Admittedly, the complainant's evidence PW 1 Shahbaz Khan is based on hearsay as regards the murder but he does specifically name the appellant as murdering the deceased by hatchet and did personally see the hatchet injuries on the face and shoulders of the deceased at the hospital. He made no material improvements in his evidence from his S.154, Cr.P.C statement. The complainant is also the related to the accused and as such would have no reason to implicate him in a false case as there was no ill will or enmity between them and would have every reason to try and save him from any culpability. He confirms the presence of PW 3 Ghulam Rehman who is the father of the accused at the hospital.

(iii) PW 3 Ghulam Rehman is an important witness. He is the father of the accused. According to his evidence his son/accused was annoyed with his sister's marriage to the deceased and had sent his wife and children away to his village as he thought his son had already made up his mind to murder the deceased. Two days prior to the incident his son/accused told him that he will go for two days and reside at the Godown of the deceased. After one day the accused and the deceased returned to his house and told him that they were going to spend the night at the Godown. On 21-02-2021 he received a call from the deceased father stating that both the accused and the deceased were at the Godown. After that he received a call from the deceased stating that the accused is trying to fight and quarrel with him. At about 2300 hours he received a call from the accused that he is with the deceased and he advised him to go to sleep. At 9am the next morning he received a call from his youngest son that the accused had come home and had gone to the first floor with the deceased mobile and that his shalwar is was blood stained. He went to the accused/son and found that the deceased mobile was lying on the accused/son's kot and that blood was on the accused white shalwar. He secured both mobile phones and asked where the deceased was. The accused/his son attacked him and he retaliated which lead to the accused/son locking himself in the washroom which he tried to escape from but fell from the roof during his attempted escape. He went down stairs and found that his son/accused was bleeding from his head and had a fractured leg as proven by subsequent medical evidence. His son/accused admitted killing Shezade/deceased so the witness told his other son PW 4 Usman to go and see if the deceased was still alive. PW 4 Usman informed him that the deceased had been killed by hatchet blows.

(iv) The time line is important as from the evidence of PW 3 Ghulam Rehman who was the father of the deceased and the accused at 11pm on the fateful day the accused was with the deceased and the accused was apparently acting strangely. By 9am at the latest the deceased was dead which leaves a maximum gap of 9 hours from the deceased being last heard from whilst he was in the company of the accused. The accused and the deceased had every reason to be with each other as they were related to each other and were staying at their Godown. The accused also had a motive to kill the deceased as he disapproved of the wedding with his sister as per the FIR and PW 3 Ghulam Rehman and PW 4 Usman who was also his brother. Importantly neither the father nor the brother of the deceased had any reason to implicate the accused who was their real son/brother in this false case who both gave their evidence in a straightforward manner and were not dented during cross-examination and whose evidence I find to be trustworthy reliable and confidence inspiring and whose evidence I believe and rely on.

Some of the replies of the Appellant in his S.342, Cr.P.C statement also corroborate the evidence of PW 3 Ghulam Rehman and PW 4 Usman as are set out below for ease of reference;"

Q.6. That on 21.02.2021 you called your father and asked him to sleep along with Shahzad Ali who was alone at Godown, what you have to say?

Ans: Yes I have spend one day and one night with deceased.

Q.7. That before this you even dropped your children including wife at their maternal house, so you could easily reside with Shahzad at his godown, what you have to say?

Ans: Yes.

Q.8. That on 21.02.2021 you also called your father at 2300 hours that you are alone with Shahazad at Godown and will spend night over there, what you have to say?

Ans. Yes.

Q.9 That you reside on the first floor of your father's house situated in Sector 16/A Shah Latif Town, what you have to say?

Ans. Yes.

Q.12. That such shirt of your father and your blood stained Shalwar were produced in evidence and are present in court today, what you have to say?

Ans. Yes.

Q.13. That after this you escaped and hide in the washroom and its door was bolted from outside and while he was calling to police, you removed roof-bricks/tiles of the washroom and jumped from there to the backside open plot, what you have to say?

Ans. I did not jump but I slipped when my father was trying to fire on me with pistol.

From the appellants own admissions he corroborates the prosecution case that he remained alone with the deceased on the fateful night in the Godown.

(v) PW 4 Usman Ghani is also an important witness. The accused is his real brother. According to his evidence the accused was annoyed with his sister's marriage to the deceased. On 22.02.2021 at about 9am the accused returned home with the deceased phone wearing a shalwar which was stained with blood. He told his father who both went upstairs to confront the accused. His father PW 3 Ghulam Rehman grabbed both the deceased and the accused mobile phones. The accused attacked his father and tore the font pocket of his fathers Qameez which lead to a fight between the father and the accused. The accused/brother bolted himself inside the washroom. The accused jumped from the first floor where he sustained an injury to his head and a fractured leg as proven by the medical evidence. His father asked him to check on the deceased as the accused had confessed to his murder. He went to the deceased nearby Godown where he saw the deceased with injuries on his face and hands. He returned home and informed his father that the deceased was dead.

This witnesses evidence corroborates that of his father in terms of the accused coming home with the deceased mobile phone, wearing a blood stained shalwar and after fighting with his father locking himself in the wash room from where he jumped and sustained injuries whilst landing on the ground. This witness is the real brother of the accused and had no reason to implicate him in a false case and who gave his evidence in a straightforward manner and was not dented during cross-examination and whose evidence I find to be trustworthy reliable and confidence inspiring and whose evidence I believe.

Corroborative evidence.

(vi) can be found in the medical evidence which ties in with the evidence of the PW's as to the cause of death and weapon used i.e. hatchet.

(vii) The recovery of the blood at the crime scene along with the hatchet (murder weapon) and blood stained relli which produced positive chemical reports. These were recovered by the police who had no enmity or ill will with the appellant and had no reason to falsely implicate him in this case for example by planting the hatchet at the crime scene and in such like cases it is well settled by now that the evidence of a police witness is as good as any other witness.

(viii) The recovered mobile phone of the deceased from the accused also supports the prosecution case.

2025 M L D 672

[Sindh]

Before Adnan-ul-Karim Memon, J

Papoo and 2 others---Appellants

Versus

Adnan and another---Respondents

Criminal Appeal No. 85 and MAs Nos. 9009 and 9010 of 2024, decided on 10th July, 2024.

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

----Ss. 3, 4 & 8---Criminal Procedure Code (V of 1898), S. 345---Illegal dispossession---Compromise---Scope---No doubt the legislature has not provided a specific section/provision under the Illegal Dispossession Act, 2005, for compounding the offense---However, S.9 of the Act ibid provided that unless provided in the Illegal Dispossession Act, 2005, the provisions contained under the scheme of Criminal Procedure Code, 1898, shall apply to all the proceedings under the Act ibid---Therefore, the compromise effected between the parties under the Act ibid should be treated as the compromise within the meaning of S.345, Cr.P.C.---Non-compoundability of the particular Section of the law should not be read in isolation but it should be read in the background of each criminal case and beneficial interpretation should be given to it---When the parties had earnestly decided to live in peace and tranquility by forgetting and giving up all their past transactions then for the sake of their welfare in general and betterment of socio-economic conditions of the society as a whole in particular, it would be prime need of time to acquit the accused from the charge upon the basis of compromise despite the non-compoundability of the S.3 of Illegal Dispossession Act, 2005.

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

----Ss. 3, 4 & 8---Criminal Procedure Code (V of 1898), S.345---Illegal dispossession---Appreciation of evidence---Compromise---Accused was charged for illegally occupying the residential plot of the complainant---Appellants were convicted under S.3 subsection (2) of the Illegal Dispossession Act, 2005---Joint application for compromise between parties had been filed duly supported with affidavits of accused persons as well as complainant---Counsel for the complainant had also made a statement duly signed by the complainant to the effect that possession of the disputed property had been handed over to complainant, therefore he had no objection to acquittal of the accused persons---Legal question was that said offence was not compoundable nor the legislature had defined it in its Preamble whether it should be treated as compoundable or non-compoundable---However, if the parties, particularly the aggrieved person/victim and both the parties i.e. the complainant and appellant/convict, had compromised against themselves then it should be treated as compromised, though under the statute it had not been defined whether it was compoundable or non-compoundable---In the present case, keeping in view the compromise that had taken place between the parties outside the Court, it was not proper to hold the conviction, especially when the complainant did not want to pursue his case anymore and had raised his no objection for acquittal of the appellants---In the circumstances and in view of the compromise effected between the parties, the appeal was disposed of---Appellants were acquitted of all the charges.

Ijaz and another v. Mst. Manadia PLD 2016 Pesh. 26 and The State v. Irfanullah Qazi 2007 MLD 1269 rel.

Hakim Ali Mallah for Appellants along with Appellants.

Respondent No. 1 in person.

Zahoor Shah, Additional P.G. for the State.

Date of hearing: 10th July, 2024.

Order

Adnan-ul-Karim Memon, J.---The Appellants Papoo, Ghafoor and Karful through this Criminal Appeal under Section 410, Cr. P.C read with section 8 of the Illegal Dispossession Act, 2005 have assailed the judgment dated 18.1.2024 passed by II- Additional Sessions Judge Thatta in Criminal Illegal Dispossession Complaint No.51 of 2022, whereby the learned Judge convicted and sentenced the appellants for an offense under sections 3 and 4 of the Illegal Dispossession Act, 2005 for a period of seven years with a fine of Rs.50,000/- each and they were also directed to compensate the complainant with Rs.1,00,000/- each.

1. The case of the complainant is that on 10.02.2022, the appellants illegally occupied residential plot No.192 measuring 2000 Sq. Feet of complainant Adnan, situated in Deh Gharo, Taluka Mirpur Sakro District Thatta, such a complaint was filed before the trial court which was processed, and an investigation report was called from the SHO concerned, who after conducting the investigation submitted his report. After hearing the parties the trial court took cognizance of the offence and registered the criminal complaint vide order dated 21.07.2023.

2. The charge against them was framed at Ex. 02, to which they pleaded not guilty and claimed trial vide pleas at Ex:02/A to Exh.02/C respectively.

3. To prove the case, the complainant Adnan examined himself at Ex:03 and produced a photocopy of Form-II at Exh.03/A and photocopy of the sketch at Exh.03/B. PW-02 Muhammad Ali at Exh.04 and PW-03 Ali at Exh.05.

4. The statement of accused under section 342, Cr.P.C were recorded at Exh.07 to Exh.09 respectively they denied the allegations of the complainant. The accused neither examined themselves on oath Under Section 340(2), Cr.P.C. nor produced any witness in their defence.

5. The trial court after hearing the parties convicted and sentenced the appellants as discussed in the preceding paragraph.

6. Today, a joint application for compromise between appellants and complainant/respondent has been filed by the respective counsel for the parties duly supported with affidavits of appellants as well as complainant/respondent, both parties are present in court. The counsel for the respondent/complainant has also made a statement duly signed by the respondent/complainant to the effect that possession of the disputed property has been handed over to him and, therefore, he has no objection to acquittal of the appellants; even if the appellants may be acquitted of all the charges including the fine amount.

7. Learned Additional PG has no objection to the compromise between the parties on the aforesaid analogy.

8. I have heard learned counsel for parties and have gone through the material available on record.

9. Learned counsel for the appellants submits that though the specific provision for compounding offense is not embodied under the Illegal Dispossession Act, 2005; however, this being a Criminal Complaint is governed by the Scheme of Criminal Procedure Code of 1898, therefore, Section 345, Cr.P.C. is applicable and presumption would be that the offense related to the property which being of civil nature is compoundable; that the offenses in terms of Illegal Dispossession Act are compoundable. In support of his contention, learned counsel for the appellant has referred to the case reported as ljaz and another v. Mst. Manadia (PLD 2016 Peshawar 26) and Suo-Motu case (re-the State v. Irfanullah Qazi (2007 MLD 1269). He further submits that although the respondent complainant is an aggrieved person the property dispute has been resolved as the possession of the same has been handed over to him, therefore, he (respondent/complainant) does not wish to linger on the proceedings; hence, the appeal may be disposed of by acquitting the appellants based on compromise.

10. On the other hand, the advocate representing the respondent/complainant states that after the conviction of the appellants, the parties have entered into compromise as a result whereof, the joint statement was made on behalf of the appellants and complainant before this Court. Resultantly, their sentence was suspended and the appellants were enlarged on bail, and maintain law and order situation in the area and to live peacefully by maintaining peace and tranquility, they have filed a joint application duly supported by their respective affidavits, hence, no loss or injury would be caused to either side if they may be allowed to act upon the compromise effected between them (parties).

11. No doubt the legislature has not provided a specific section/provision under the Illegal Dispossession Act, 2005 for compounding the offense even if it is lacking whether it will be treated as a compoundable or non-compoundable offense. However, Section 9 of the Act ibid provides that unless provided in the Illegal Dispossession Act, 2005, the provisions contained under the scheme of Criminal Procedure Code, 1898 shall apply to all the proceedings under the Act ibid. Therefore, I am of the clear view that the compromise effected between the parties under the Act ibid should be treated as the compromise within the meaning of Section 345, Cr.P.C. It is an admitted fact that both parties have amicably settled all their differences and have resolved to lead the rest of their lives in peace and tranquility. It is settled law that the non-compoundability of the particular Section of the law should not be read in isolation but it should be read in the background of each criminal case and beneficial interpretation should be given to it; more particularly, when the parties have earnestly decided to live in peace and tranquility by forgetting and giving up all their past transactions then for the sake of their welfare in general and betterment of socio-economic conditions of the society as a whole in particular, it will be prime need of time to acquit the appellant from the charge of instant case upon the basis of compromise despite the non compoundability of the Section 3 of Illegal Dispossession Act, 2005, if it is so.

2025 M L D 682

[Sindh (Hyderabad Bench)]

Before Muhammad Karim Khan Agha, J

Ghulam Hyder---Appellant

Versus

The State---Respondent

Criminal Jail Appeal No. S-34 of 2017, decided on 27th May, 2024.

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

----Ss. 302(b), 302(c) & 504---Qatl-i-amd, intentional insult with intent to provoke breach of peace---Appreciation of evidence---Delay of five days in lodging the FIR---Not-consequential---Accused was charged for committing murder of the brother of complainant by inflicting hatchet blows---FIR was lodged after a delay of five days, which had not been fully explained---Admittedly, the complainant took the dead body to the hospital where it was subject to post mortem and then was released to him on the same day for burial purposes---Under such circumstances, it would have been expected that the FIR would have been lodged the next day or at a maximum after two days yet three days had gone unexplained before the FIR was finally lodged---Usually such delay was fatal to the prosecution case however in this case it was noted that on the same day after two hours the incident was reported to the Investigating Officer---As per evidence of Investigating Officer, the complainant informed him that the appellant had murdered his brother hence he had gone to the hospital to complete legal formalities---As such, based on the particular facts and circumstances of the case where the Investigating Officer was informed by the complainant about the identity of the murderer within two hours of the incident, the delay in lodging the F.I.R was not found fatal to the prosecution case---Circumstances established that the prosecution had proved its case against appellant under S.302(c), P.P.C, instead of under S.302(b), P.P.C and as such appellant was convicted and sentenced under S.302(c), P.P.C---Appeal was disposed of with modification in sentence.

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

----Ss. 302(b), 302(c) & 504---Qatl-i-amd, intentional insult with intent to provoke breach of peace---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged for committing murder of the brother of complainant by inflicting hatchet blows---Complainant/eye-witness was related to the deceased and the accused and no proven enmity had come on record between the complainant and the accused and as such his evidence could not be discarded and had to be considered at its own worth---Complainant knew the accused before the incident---Incident happened in front of complainant in broad day light at 9.30 am in the morning and hence there was no need for an identification parade---Complainant was not a chance witness as his house was nearby and he was working in his land with his brother/deceased---Complainant had no proven enmity or ill will with the accused and as such had no reason to implicate him in a false case---Complainant gave his evidence in a straight forward manner and was not dented during cross-examination---Evidence of complainant was found to be reliable, trustworthy and confidence inspiring especially in relation to the identification of the accused---Moreover, it did not appeal to logic, commonsense or reason that a brother would let the real murderer of his real brother get away scot free and falsely implicate an innocent person by way of substitution---Medical evidence and post mortem report fully supported the eye-witness version that the deceased died from receiving two injuries from a sharp cutting instrument i.e., a hatchet in the place which he claimed---Circumstances established that the prosecution had proved its case against appellant under S.302(c), P.P.C instead of under S.302(b), P.P.C, and as such appellant was convicted and sentenced under S.302(c), P.P.C---Appeal was disposed of with modification in sentence.

Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Muhammad Asif v. The State 2017 SCMR 486; Muhammad Mansha v. The State 2018 SCMR 772; Khadim Hussain v. The State 2010 SCMR 1090; Sajid Mehmood v. The State 2022 SCMR 1882 and Amanullah v. The State and another 2023 SCMR 527 ref.

Muhammad Ehsan v. The State 2006 SCMR 1857; Farooq Khan v. The State 2008 SCMR 917; Niaz-ud-Din and another v. The State and another 2011 SCMR 725; Muhammad Ismail v. The State 2017 SCMR 713; Qasim Shahzad and another v. The State 2023 SCMR 117; Muhammad Waris v. The State 2008 SCMR 784 and Muhammaed Ashraf v. State 2021 SCMR 758 rel.

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

----Ss. 302(b), 302(c) & 504---Qatl-i-amd, intentional insult with intent to provoke breach of peace---Appreciation of evidence---Police witnesses, evidence of---Reliance---Accused was charged for committing murder of the brother of complainant by inflicting hatchet blows---Record showed that there was no ill will or enmity between the police and the appellant and as such they had no reason to falsely implicate the appellant in the case by foisting the hatchet on him---Under said circumstances, the evidence of police witnesses was as good as any other witness---Evidence of the Investigating Officer and other police witnesses was not dented during cross-examination---Circumstances established that the prosecution had proved its case against appellant under S.302(c), P.P.C, instead of under S.302(b), P.P.C and as such appellant was convicted and sentenced under S.302(c), P.P.C---Appeal was disposed of with modification in sentence.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 302(b), 302(c) & 504---Qatl-i-amd, intentional insult with intent to provoke breach of peace---Appreciation of evidence---Minor contradictions in evidence of witnesses---Not consequential---Accused was charged for committing murder of the brother of complainant by inflicting hatchet blows---Record showed that all the prosecution witnesses were consistent in their evidence---If there were some contradictions in their evidence, same were minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and the conviction of the appellant---Circumstances established that the prosecution had proved its case against appellant under S.302(c), P.P.C instead of under S.302(b), P.P.C and as such appellant was convicted and sentenced under S.302(c), P.P.C---Appeal was disposed of with modification in sentence.

Zakir Khan v. State 1995 SCMR 1793 and Khadim Hussain v. The State PLD 2010 SC 669 rel.

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

----Ss. 302(b), 302(c) & 504---Qatl-i-amd, intentional insult with intent to provoke breach of peace---Appreciation of evidence---Sentence, quantum of---Scope---Spur of the movent quarrel with no premeditation to kill---Accused was charged for committing murder of the brother of complainant by inflicting hatchet blows---Record showed that there was no prior ill will or enmity between the appellant and the deceased as admitted in the F.I.R and by the eye-witness---Moreover, a sudden quarrel broke out between the appellant and the deceased over the cutting down of a tree which led to the appellant being provoked by the quarrel on the spur of the moment to give two hatchet blows to the head of the deceased without premeditation---Hence present case fell within the purview of S.302(c), P.P.C and the prosecution had proved its case in respect of said offence against the appellant beyond a reasonable doubt---Appellant was convicted and sentenced under S.302(c), P.P.C. accordingly---Appeal was disposed of with modification in sentence.

Azmat Ullah v. The State 2014 SCMR 1178 rel.

Abid Ali Mirjat for Appellant.

None present despite notice for Complainant.

Shahid Ahmed Shaikh, Addl: P.G. for the State.

Date of hearing: 20th May, 2024.

Judgment

Muhammad Karim Khan Agha, J.---Appellant has challenged the Judgment dated 12.01.2017 passed by the learned Ist Additional Sessions Judge Dadu in Sessions Case No.835 of 2014 (Re: The State v. Ghulam Haider), outcome of Crime No.135 of 2014 registered at P.S Johi District Dadu under Sections 302 and 504, P.P.C., whereby he has been convicted and sentenced to suffer R.I for 25 years with fine of Rs.50,000/-, payable to be legal heirs of deceased, and in case of non-payment of fine amount he has to suffer S.I for six months more, however, benefit of Section 382-B Cr.P.C has been extended to him.

1. The brief facts of the case are that on 18.09.2014 at 2030 hours complainant Muhammad Siddique Jamali appeared at P.S Johi and reported that on 13.09.2014 he along with his brother Muhammad Ibrahim alias Kaloo, cousin Ghulam Nabi and maternal cousin Rustam Jamali were working at their lands, when at about 0930 hours accused Ghulam Haider Jamali having hatchet was seen standing under the Babul tree, who disclosed that he would cut the same on which Muhammad Ibrahim alias Kaloo restrained him, which annoyed the accused Ghulam Haider, who caused sharp side hatchet blows to Muhammad Ibrahim Kaloo on head and left side of neck, who fell down while raising cries; that thereafter he (complainant) and PWS gave hakals to accused, who escaped away then they saw that Muhammad Ibrahim Kaloo died at the spot; after necessary legal formalities he lodged the subject FIR.

2. After usual investigation police submitted the challan and the learned trial court after completing necessary formalities framed the charge against the appellant to which he pleaded not guilty and claimed trial.

3. In order to prove its case the prosecution examined six (06) witnesses, who exhibited numerous documents and other items. Then statement of accused under Section 342, Cr.P.C was recorded whereby he denied the allegations levelled against him and claimed his false implication by the complainant party on account of previous enmity. However, he neither examined himself on Oath nor led any evidence in his defense.

4. After hearing the parties and assessing the evidence on record the trial court convicted and sentenced the appellant as mentioned in opening paragraph of this Judgment, hence appellant has preferred captioned appeal.

5. Learned counsel for the appellant has contended that the appellant is innocent and has been falsely implicated in this case on account of a family dispute and hence the FIR was delayed by 6 days which gave the complainant time to cook up a false case against him; that the eye-witnesses did not witness the incident and as such their evidence should be discarded especially as they gave their section 161 eye-witness statements 10 days after the incident; that the prosecution deliberately failed to produce the best evidence in that eye-witness Ghulam Nabi was dropped by the prosecution without explanation; that the hatchet was foisted on the appellant by the police and he did not lead the police to it hidden at his house on his own pointation and as such for any or all of the above reasons the appellant should be acquitted by extending him the benefit of the doubt. In support of his contentions he placed reliance on the cases of Mehmood Ahmad and 3 others v. The State and another [1995 SCMR 127], Muhammad Asif v. The State [2017 SCMR 486] and Muhammad Mansha v. The State [2018 SCMR 772].

6. On the other hand learned APG fully supported the impugned judgment. In particular, he contended that the delay in lodging the FIR had been fully explained; that the delay in recording the witnesses section 161, Cr.P.C statements had also been explained; that the evidence of the eye-witnesses was trustworthy and confidence inspiring and could be safely relied upon; that the medical evidence supported the ocular evidence and that the murder weapon (hatchet) had been recovered from the appellant on his pointation after his arrest and as such the prosecution had proved its case beyond a reasonable doubt and the appeal be dismissed or in the alternative the appellant be convicted under section 302, P.P.C. In support of his contentions he placed reliance on the cases of Khadim Hussain v. The State [2010 SCMR 1090], Sajid Mehmood v. The State [2022 SCMR 1882] and Amanullah v. The State and another [2023 SCMR 527].

7. I have heard the learned counsel for the appellant as well as learned APG, have also perused the material available on record and the case law cited at the bar.

8. Based on my reassessment of the evidence of the PW's, especially the medical evidence and blood recovered at the crime scene, I find that the prosecution has proved beyond a reasonable doubt that Muhammed Ibrahim (the deceased) was murdered by an sharp cutting instrument on 13.09.2014 at about 9.30am at the agricultural land of the complainant towards the northern side of the top of Sakhani Shakh near village Babu Khan Jamali, deh Channa Johi.

9. The only question left before me therefore is who murdered the deceased with a sharp cutting instrument at the said time, date and location?

10. After my reassessment of the evidence on record, I find that the prosecution has not proved beyond a reasonable doubt the charge against the appellant under section 302(b), P.P.C. but has proved beyond a reasonable doubt the charge against the appellants under section 302(c), P.P.C. for which I now convict him for the following reasons;

(a) That the FIR was lodged after a delay of 5 days. I find that this delay has not been fully explained. Admittedly, the complainant took the dead body to the hospital where it was subject to post mortem and then released to him the same day for burial purposes. Under such circumstances it would have been expected that the FIR would have been lodged the next day or at a maximum after two days yet 3 days have gone unexplained before the FIR was finally lodged. Usually such delay is fatal to the prosecution case however in this case I note that on the same day after two hours the incident was reported to the IO PW 6 Ghulam Abbas as per his evidence which is supported by a duly exhibited entry stating the complainant informed him that the appellant had murdered his brother/the deceased and hence he had gone to the hospital to complete legal formalities. As such based on the particular facts and circumstances of this case where the IO was informed by the complainant about the identity of the murderer within two hours of the incident I do not find the delay in lodging the FIR fatal to the prosecution case although it does put me on caution as only the fact of the murder and who committed it was disclosed at the time of the murder being reported by the police which potentially left time to elaborate on the murder story especially as no eye-witness was mentioned in this early report to the police.

(b) I find that the entire prosecution case hinges on whether I believe the evidence of the eye-witnesses whose evidence I shall consider in detail below;

(i) Eye-witness PW 1 Muhammed Siddique is the complainant of the case and is related to both the deceased who is his brother and distantly to the accused. According to his evidence on 13.09.2014 he, the deceased, his cousin Rustam and Ghulam Nabi were busy on their land when at 9.30am Ghulam Hyder/accused came their and starting cutting down a tree on their land. His brother/deceased told the accused to stop cutting the tree whereupon the accused became annoyed and abused his brother/deceased and hit him twice over the head with a hatchet before making his escape good. The complainant found that his brother/deceased was dead and took him to hospital and then informed the police. The body was released to him the same day for burial purposes and he lodged the FIR 5 days later despite informing the police about the murder and the identity of the murderer within 2 hours of the incident as mentioned above.

This eye-witness was related to the deceased and the accused and no proven enmity has come on record between the complainant and the accused and as such it is settled by now that his evidence cannot simply be discarded and must be considered at its own worth.

The complainant knew the accused from before and the incident happened in front of him in broad day light at 9.30am in the morning and hence there is no need for an identification parade. He is not a chance witness as his house was nearby and he was working his land with his brother/deceased. He had no proven enmity or ill will with the accused and as such had no reason to implicate him in a false case. He gave his evidence in a straight forward manner and was not dented during cross-examination. I find his evidence to be reliable, trust worthy and confidence inspiring especially in relation to the identification of the appellant and believe the same and place reliance on it.

It is well settled by now that I can convict the accused on the evidence of a sole eye-witness provided that I find his/her evidence to be trust worthy, reliable and confidence inspiring and in this case I have found the evidence of this eye-witness to be trust worthy, reliable and confidence inspiring especially in respect of the correct identification of the appellant and as such I believe the same and place reliance on it. In this respect reliance is placed on the cases of Muhammad Ehsan v. The State (2006 SCMR 1857), Farooq Khan v. The State (2008 SCMR 917), Niaz-ud-Din and another v. The State and another (2011 SCMR 725) Muhammad Ismail v. The State (2017 SCMR 713) and Qasim Shahzad and another v. The State (2023 SCMR 117). His evidence is also of good quality and it is settled by now that it is not the length of the evidence which is of importance but its quality.

(ii) Eye-witness PW 2 Rustam. He corroborates the evidence of complainant in all material respects. He also is not a chance witness and had no enmity or ill will to implicate the appellant in a false case. He gave his evidence in a straight forward manner and was not dented during cross-examination. He, however, was not named in the promptly lodged police entry as an eye-witness which entry was made within two hours of the incident. He was only named in the FIR which was lodged 5 days after the incident. He section 161, Cr.P.C statement was recorded 10 days after the incident so it cannot be ruled out that his evidence was based on a case concocted between himself and the appellant after due deliberation and he was a planted witness. It is well settled by now that section 161, Cr.P.C eye-witness statements which are recorded after an unexplained delay of 2 days or more (let alone 10 days) are of no evidentiary value and cannot be relied upon. In this respect reliance is placed on the case of Muhammed Asif (Supra) and as such I have disregarded the evidence of this eye-witness.

Having believed the evidence of the sole eye-witness as to the murder of the deceased and the identification of the murderer I turn to consider the corroborative/supportive evidence whilst keeping in view that it was held in the case of Muhammad Waris v. The State (2008 SCMR 784) as under;

"Corroboration is only a rule of caution and is not a rule of law and if the eye-witness account is found to be reliable and trust worthy there is hardly any need to look for any corroboration"

(c) That it does not appeal to logic, commonsense or reason that a brother would let the real murderer of his real brother get away scot free and falsely implicate an innocent person by way of substitution. In this respect reliance is placed on the case of Muhammed Ashraf v. State (2021 SCMR 758).

(d) That the medical evidence and post mortem report fully support the eye-witness/prosecution evidence that the deceased died from receiving two injuries from a sharp cutting instrument in the place which he claims i.e a hatchet.

(e) That there was no ill will or enmity between the police and the appellant and as such they had no reason to falsely implicate the appellant in this case. For instance by foisting the hatchet on him. Under these circumstances it is settled by now that the evidence of police witnesses is as good as any other witness. In this respect reliance is placed on the case of Mustaq Ahmed v. The State (2020 SCMR 474). Thus, I believe the evidence of the IO and other police witnesses who were not dented during cross-examination. However I have excluded the hatchet from consideration as it was not put to the appellant in his section 342 Cr.P.C statement as being recovered by him from his house on his own pointation which is a mandatory requirement of the law.

(f) That all the PW's are consistent in their evidence and even if there are some contradictions in their evidence I consider these contradictions as minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and the conviction of the appellant. In this respect reliance is placed on the cases of Zakir Khan v. State (1995 SCMR 1793) and Khadim Hussain v. The State (PLD 2010 Supreme Court 669).

(g) It is true that there was no independent mashirs however it has now become a judicially recognized fact that in such like cases independent members of the public do not want to involve themselves and as such today the fact that there are no independent mashir's is not of huge significance especially when the eye-witness evidence is believed and the case happens in a small village where nearly every one is related to each other so there are hardly any independent mashirs available.

(h) Undoubtedly it is for the prosecution to prove its case against the accused beyond a reasonable doubt but I have also considered the defence case to see if it at all can caste doubt on or dent the prosecution case. The defence case as set out by the appellant in his section 342, Cr.P.C statement is simply false implication by the complainant. The appellant did not give evidence on oath or call a single defence witness in support of his defence case. Thus, in the face of reliable, trust worthy and confidence inspiring eye-witness evidence and other supportive/corroborative evidence discussed above I disbelieve the defence case as an after thought which has not at all dented the prosecution case.

(i) However I find from the evidence on record that that there was no prior ill will or enmity between the appellant and the deceased; that as admitted in the FIR and by the PW eye-witnesses referred to above a sudden quarrel broke out between the appellant and the deceased over the cutting down of a tree which lead to the appellant after being provoked by the quarrel on the spur of the moment to give two hatchet blows to the head of the deceased without premeditation which hatchet the appellant had on him and hence I find that the case falls within the purview of S.302(c), P.P.C. and find that the prosecution has proved its case in respect of this offence against the appellant beyond a reasonable doubt and hereby convict him and sentence him for this offence. In this respect reliance is placed on the case of Azmat Ullah v. The State (2014 SCMR 1178) which held as under;

2025 M L D 703

[Sindh (Hyderabad Bench)]

Before Zafar Ahmed Rajput, J

Ghulam Murtaza---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-938 of 2024, decided on 23rd September, 2024.

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

----Ss. 497(5) & 498---Penal Code (XLV of 1860), 324, 337-F(i), 337-F(iii), 337-F(iv) & 34---Attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, ghayr-jaifah-hashimah, ghayr-jaifah-mudihah, common intention---Ad-interim pre-arrest bail, recalling of---Allegation against the applicant was that he along with his co-accused caused firearm injuries to the daughter-in-law and sister of complainant---Record showed that the applicant was nominated by name in the promptly recorded F.I.R with specific role of causing firearm injuries to daughter-in-law of complainant, who as per Medico-Legal Certificate, had received 10 pellets injuries on vital parts of her body---Such injuries, if inflicted to any women, may cause disfigurement of parts of the body especially breast, which represent fertility, femininity and vitality---Injured daughter-in-law of the complainant had sustained injuries on sensitive parts of her body on account of direct fire made on her by the applicant with a repeater gun---Evidence on record indicated that an attempt was made by the applicant on the life of the said injured---Hence, offence under S.324, P.P.C, was prima facie attracted to the present case, which being punishable with imprisonment for ten years, fell within the prohibitory clause of S.497, Cr.P.C---Sufficient material was available with the prosecution to connect the applicant with the commission of alleged offence---Petition was dismissed, in circumstances, and ad-interim pre-arrest bail earlier granted to the petitioner was recalled.

Zaigham Ashraf v. The State and others 2016 SCMR 18; Haji Maa Din and another v. The State and another 1998 SCMR 1528; Syed Amanullah Shah v. The State and another PLD 1996 SC 241 and Ghulam Muhammad alias Masood v. The State 2020 YLR Note 56 ref.

Khalida Bibi v. Nadeem Baig PLD 2009 SC 440 rel.

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

----Ss. 497 & 498 ---Bail---Observations of Court---Scope---Observations made in a bail order are tentative in nature and do not influence the Trial Court while deciding the case on merits.

Wajid Ali Khaskheli for Applicant.

Ms. Sana Memon, Assistant Prosecutor General, Sindh for the State.

Abdul Rasool Abbasi for the Complainant.

Date of hearing: 23rd September, 2024.

Order

Zafar Ahmed Rajput, J.---Through instant Criminal Bail Application, applicant Ghulam Murtaza seeks pre-arrest bail in Crime No.60 of 2024, registered under sections 324, 337-F(i), 337-F(iii), 337-F(vi), 34, P.P.C. at P.S. Sehwan. His earlier application for the same relief bearing Cr.B.A.No.74 of 2024 was heard and dismissed by the learned Additional Sessions Judge-II, Jamshoro at Kotri vide order dated 09.08.2024. He was admitted to interim pre-arrest bail by this Court vide order dated 26.08.2024, now the matter is fixed for confirmation of the same or otherwise.

1. It is alleged that, on 13.05.2024, at about 01:00 p.m., the complainant along with his daughter-in-law Mst. Seema and his sister Mst. Afsana Jalbani went to village Gulab Jalbani for condolence of their relative and on their returning they reached Bobak Sabeel, Railway Station Link Road, where their motorcycle became punctured. Meanwhile, the applicant along with co-accused Razzaq son of Manthar, both armed with repeaters, and Badal son of Gahi Khan, armed with pistol, came and in furtherance of their common intention, the applicant attempted to commit qatl-e-amd of Mst. Seema wife of Abdul Qadir (the daughter-in-law of complainant) by causing her direct firearm injuries with repeater; co-accused Razzaq made direct fire on Mst. Afsana (the sister of complainant) with his repeater. Then applicant again made straight fire from his repeater on Mst. Seema while co-accused Badal made fire with his pistol on the complainant which went missed. The accused persons then fled away and the injured were taken to Sehwan Hospital.

2. Learned counsel for the applicant contends that the applicant is innocent and has falsely been implicated in the case by the complainant with mala fide intention and ulterior motives; that the alleged injury is on non-vital parts of the body of the injured Mst. Seema; that in the F.I.R. the complainant has attributed two repeater fires to applicant, while the said injured in her statement recorded under section 161, Cr. P.C. has attributed one to applicant and the other to co-accused Razzaq, which creates doubt in prosecution case rendering the case one of further inquiry; that there is no independent witness of the alleged incident; that the alleged injuries are punishable in maximum with imprisonment of three years for the offence under section 337-F(iii), P.P.C., which does not fall within the prohibitory clause of section 497, Cr. P.C., and so far application of section 324, P.P.C. is concerned, its applicability would be seen by the trial Court after recording pro and contra evidence of the parties; hence, the applicant is entitled to the concession of bail. In support of his contentions, learned counsel has relied on the case of Zaigham Ashraf v. The State and others (2016 SCMR 18), Haji Maa Din and another v. The State and another (1998 SCMR 1528), Syed Amanullah Shah v. The State and another (PLD 1996 SC 241) and Ghulam Muhammad alias Masood v. The State (2020 YLR Note 56).

3. On the other hand, learned counsel for the complainant and Assist. P.G. have opposed the instant application on the ground that the applicant has caused firearm injuries to injured witness Mst. Seema on her vital part, which fact is duly corroborated by the MLC; hence, he is not entitled to the extra ordinary relief of pre-arrest bail.

4. Heard learned counsel for the parties and perused the material available on record.

2025 M L D 709

[Sindh]

Before Naimatullah Phulpoto and Irshad Ali Shah, JJ

Javed Shah---Appellant

Versus

The State---Respondent

Special Criminal Anti-Terrorism Jail Appeal No. 124 of 2023, decided on 12th September, 2024.

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

----Ss. 324, 353, 186 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Murderous assault on police, acts of terrorism---Appreciation of evidence---Accused was charged that he along with his co-accused made firing upon the police party; in retaliation police also made firing due to which appellant sustained firearm; injury and co-accused ran away from the spot---Record showed that it was a case of spy information, incident had occurred on a road in thickly populated area, but no efforts were made by the police to associate private persons---As per prosecution evidence, there was cross-firing with sophisticated weapons but neither Police Officials sustained firearm injury nor damage was caused to police mobile which appeared to be unbelievable---On the other hand, appellant had sustained fire shot injury on his right leg---So far as Injury No. 2 on the person of the appellant was concerned, record reflected that it had been suppressed by the police---According to the Medical Officer, Injury No. 2 was 03 to 04 days old and was caused to the appellant with hard blunt substance---Prosecution could not explain how Injury No. 2 was sustained by the appellant---Element of terror or panic was missing in the case---Conviction and sentence under S.7 of the Act 1997 was also not sustainable---Police Officials did not record or take photographs when search, seizure and arrest of the appellant was made---Moreover, it was night time incident, source of light was not mentioned by the Police Officials in their evidence and mashirnama of arrest and recovery was also silent on such aspect of the case---In the mashirnama of arrest and recovery, description had been mentioned, but evidence of Police Officials was silent on that respect---Prosecution could not explain such omission in the evidence---Safe custody and safe transmission of the pistol used in the crime had not been established before the trial Court, for the reason that prosecution failed to examine Incharge Malkhana of concerned Police Station---Investigation Officer failed to preserve the finger prints of the accused and on pistol during course of encounter---Moreover, there were also major contradictions in the evidence of prosecution witnesses on material particulars of the case---Appeal against conviction was allowed, in circumstances.

Zahid Sarfaraz Gill v. The State 2024 SCMR 934 ref.

(b) Criminal trial---

----Benefit of doubt---Principle---If there is a circumstance which creats reasonable doubt in a prudent mind about the guilt of the accused, the benefit of such doubt, must be given to him not as a matter of grace and concession but as a matter of right.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Khuda Dino Sangi for Appellant.

Abrar Ali Khichi, Additional Prosecutor General Sndh for the State.

Date of hearing: 12th September, 2024.

Judgment

Naimatullah Phulpoto, J.---It is the case of the prosecution that SIP Ghulam Hussain along with his subordinate staff left for patrolling on 06.08.2022. During patrolling, police party received spy information that two suspected persons were present near Liyari Railway Station, Maripur Road. Police party proceeded to the pointed place and reached there at 0200 hours and saw two persons in suspicious manner, who on seeing police party started firing, police also fired in self defence, resultantly, appellant sustained fire arm injury and co-accused ran away from the spot. In the incident, no injury was caused to the police officials. Police arrested the appellant, on enquiry he disclosed his name as Jawaid Shah. Police recovered one unlicensed .30 bore pistol without number and four live bullets from his possession; mashirnama of arrest and recovery was prepared in presence of mashirs namely PCs Gulsher and Muhammad Aslam. Thereafter, appellant was referred to the Hospital and SIP Ghulam Hussain came at the police station and lodged two FIRs bearing Crime No.237/2022 for offences punishable under Sections 353, 324, 186, 34, P.P.C. read with Section 7 of ATA, 1997 and Crime No. 238/2022 for offence punishable under Section 23(1)(a) of Sindh Arms Act, 2013 at P.S Kalri, Karachi on behalf of State.

1. During investigation, crime weapon .30 bore pistol, bullets and empties were dispatched to the Ballistic Expert, positive report was received. On the conclusion of the usual investigation, challan was submitted against accused under the above referred sections.

2. At trial, both cases one relating to police encounter and another relating to the recovery of unlicensed pistol of .30 bore from appellant were jointly tried in terms of Section 21-M of Anti-Terrorism Act, 1997.

3. Trial Court framed Charge against the appellant, he pleaded not guilty and claimed to be tried. In order to substantiate the charge, prosecution has examined 04 P.Ws who produced the relevant documents at trial. Thereafter, prosecution side was closed.

4. Trial Court recorded statement of accused under Section 342, Cr.P.C, in which he denied the prosecution's allegations and claimed false implication in this case. Accused declined to examine himself on oath in disproof of the prosecution allegations and did not lead evidence in his defence.

5. Trial Court, after hearing learned counsel for the parties and assessment of the evidence vide judgment dated 15.06.2023 convicted the appellant under Section 7(h) of ATA, 1997 read with section 353, P.P.C. and sentenced to undergo 05 years R.I and to pay fine of Rs.5000/-. In case of default, he was directed to undergo 03 months S.I. Appellant was convicted under Section 7(h) of ATA, 1997 read with section 324, P.P.C. and sentenced to undergo 05 years R.I and to pay fine of Rs.5000/-. In case of default, he was directed to undergo 03 months S.I. Appellant was also convicted under Section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to undergo 05 years R.I and to pay fine of Rs.3000/- In case of default, he was directed to undergo 03 months S.I. All the sentences were directed to run concurrently. Appellant was also extended benefit of section 382(b), Cr.P.C. Thereafter, appellant filed instant Appeal.

6. Learned advocate for the appellant has mainly contended that prosecution story is highly unnatural and unbelievable; that it was night time incident but source of light on which mashirnama of arrest and recovery was prepared has not been mentioned; that description of the pistol allegedly recovered from the possession of the appellant has not been mentioned; that though it was the case of cross firing with sophisticated weapons but not a single injury was caused to any police official. Learned advocate for the appellant pointed out that Doctor, who examined the appellant, opined that injury No.2 on the person of the appellant was 03 to 04 days old, whereas, according to the prosecution case, soon after the incident, appellant in injured condition was referred to the Hospital but no where injury No.2 was on the person of injured appellant has been mentioned. Lastly, it is submitted that appellant is entitled to the acquittal by extending him benefit of doubt. In support of his contentions reliance is placed upon the case reported as Zahid Sarfaraz Gill v. The State (2024 SCMR 934).

7. On the other hand learned, Addl. P.G Sindh contended that evidence of police official is reliable and confidence inspiring; that appellant was arrested on spot in injured condition and an unlicensed pistol was recovered from his possession. Prosecution has succeeded to prove its' case against the appellant and prayed for dismissal of the appeal.

8. We have heard arguments of learned Advocate for the appellant, Addl. P.G and have gone through the entire evidence, which has been read out by learned Advocate for the appellant and the impugned judgment and have considered the relevant law cited at bar.

9. After re-assessment of the evidence, we have come to the conclusion that prosecution has miserably failed to prove its' case against the appellant for the reasons that it was a case of spy information, incident had occurred on a road in thickly populated area, but no efforts were made by the police to associate private person. It is the prosecution evidence that there was cross-firing with the sophisticated weapons but neither police official sustained firearm injury nor damage was caused to police mobile which appears to be unbelievable. On the other hand, appellant had sustained fire shot injury on his right leg. So far injury No.2 on the person of the appellant is concerned, record reflects that it has been suppressed by the police. According to the Doctor, injury No.2 was 03 to 04 days old and was caused to the appellant with hard blunt substance. Addl. P.G could not explain injury No.2 that how that was sustained by the appellant. On the other hand, advocate for appellant has contended that it is a case of false police encounter and appellant was arrested by police 04 days prior to registration of cases. Element of terror or panic is missing in the case. Conviction and sentence under section 7 of the Anti-Terrorism Act, 1997 was also not sustainable. Police officials did not record or took photographs when search, seizure and arrest of the appellant was made. It was night time incident, source of light is not mentioned by the police officials in their evidence and mashirnama of arrest and recovery is also silent on this aspect of the case. So far description of the pistol is concerned, in the mashirnama of arrest and recovery, description has been mentioned, but evidence of police officials is silent on this respect. Addl. P.G could not explain such omission in the prosecution evidence. Safe custody and safe transmission of the pistol used in crime has not been established before the trial Court, for the reason that prosecution failed to examine Incharge Malkhana of concerned police station. The Investigation Officer failed to preserve the finger prints of the accused and on pistol during course of encounter. There are also major contradictions in the evidence of prosecution witnesses on material particulars of the case.

2025 M L D 721

[Sindh (Sukkur Bench)]

Muhammad Saleem Jessar, J

Zuhaib---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-600 of 2024, decided on 18th October, 2024.

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

----S. 497(2)---Penal Code (XLV of 1860), S. 395---Dacoity---Bail, grant of---Further inquiry---Accused-applicant was charged for committing dacoity with the complainant---Applicant was nominated in the FIR along with co-accused and certain robbed articles were allegedly shown to have been recovered by the police from him at the time of his arrest---However, on same footings co-accused, who too was arrested by the police on 14.08.2023 and certain robbed articles were also recovered from his possession, had been granted post arrest bail on 15.08.2024---Other co-accused persons had also been granted extra-ordinary relief in shape of pre-arrest bail by the Court on 12.08.2024 yet the request so made by present applicant had been turned down for reasons best known to the Presiding Officer---Since some of the co-accused had been extended grace of pre-arrest bail and one had been released on post arrest bail, the case of present applicant was not only at par with them rather was on better footings than that of co-accused who had been granted bail by the Court below---When complainant who was victim of incident had no objection and co-accused had been granted bail, case of applicant was purely covered by subsection (2) to S.497, Cr.P.C---Bail application was allowed, in circumstances.

Nizamuddin v. The State and others SBLR 2024 Sindh 125 ref..

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

----S. 497---Bail order---Observations of Court---Scope---Observations made in the bail order are tentative in nature and should not influence the Trial Court while deciding the case of either side.

Shahid Ali Memon for Applicant.

Syed Sardar Ali Shah, Additional P.G. for the State.

Naseer Ahmed present in person for the Complainant.

Date of hearing: 18th October, 2024.

Order

Muhammad Saleem Jessar, J.---Process issued against complainant has returned by ASI Ghulam Rasool of Police Station 'A' Section Ghotki duly served, taken on record. Since compliance has been made hence the show cause notice issued to SHO Police Station 'A' Section Ghotki is hereby vacated.

1. Vide FIR No.330/2024 registered with P.S 'A' Section Ghotki for the offence punishable under section 395, P.P.C. the applicant Zohaib Soomro was arrested on 23.08.2024 along with alleged robbed articles. After completion of legal formalities the police have submitted challan against them on 29.08.2024. The case as reported is pending for preliminary proceedings in terms of dicta laid down by Hon'ble Supreme Court in the case of Muhammad Ramzan v. Rahib and others (PLD 2010 SC 585). The applicant filed Criminal Bail Application No.1734 of 2024 before the Court of Sessions Judge, latter it was assigned to IIIrd Additional Sessions Judge, Ghotki, who after due notice and hearing the parties turned down request so made by the applicant vide his order dated 27.08.2024 hence this application has been maintained.

2. Since the facts of the prosecution case are already mentioned in the FIR, which is annexed with the Court file, therefore, there is no need to reproduce the same.

3. Learned counsel for applicant submits that co-accused Ghulam Murtaza was also nominated and arrested by the police on 14.08.2023 along with certain robbed articles; however, has been granted post arrest bail by the same Additional Sessions Judge on 15.08.2024 on the ground of parity as he has already granted bail to co-accused Suneel Kumar alias Suneel and Muhammad Faheem Rajput on 12.08.2024. He submits that complainant of this case has sworn an affidavit before this on 04.10.2024 whereby he has extended his no objection for grant of bail to applicant Zohaib. He further submits that by granting application, the applicant may be released on bail.

4. Learned Additional P.G appearing for state after going through the record as well as no objection extended by complainant present before the Court places his reliance upon the case of Nizamuddin v. The State and others (SBLR 2024 Sindh 125) also records his no objection for grant of instant bail application.

5. Heard arguments and record perused.

2025 M L D 730

[Sindh (Mirpurkhas Bench)]

Before Adnan-ul-Karim Memon, J

Muhammad Yousif---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-172 of 2024, decided on 13th August, 2024.

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotic substances---Bail, grant of---Further inquiry---Prosecution case was that 2240-grams charas was recovered from the possession of the accused/applicant---Alleged recovered narcotic substance was dispatched to the Chemical Examiner on the next day of its recovery---Chemical report was positive---However, there appeared a remarkable difference between the gross weight of charas i.e. 2240-grams, and the net weight of charas which weighed 2236-grams---In such circumstances, the question was whether the applicant could be saddled with possession and transporting the narcotic in terms of S.9(i)(3)(c) of the Control of Narcotic Substances (amended) Act, because the applicant had been shown to have been arrested and police allegedly found black shopper bag containing purported four big and one small dark brown pieces of charas, whereas the applicant claimed that he was arrested from his house---Besides, the defence had also levelled allegations against the prosecution witnesses of their malice in the matter---In the present case, the guilt or innocence of the applicants was yet to be determined by the Trial Court---Prosecution had not placed any material to establish that the applicant was a previous convict---Merely being involved in the same and similar offences in the past could not be a ground to refuse bail as the case could be decided on merit, therefore, the record could not be cited as precedent to refuse bail on that point---False implication could be judged by the Trial Court as the prosecution had sufficient time to comply with the law that the police and members of the Anti-Narcotics Force failed to record or photograph when search, seizure or arrest was made, as the law permitted the use of modern device or techniques---In the present case, the police had failed to apply the modern devices at the time of arrest and recovery of narcotic substance---Such facts and circumstances of the case had made it a case of further inquiry---Bail application was allowed, in circumstances.

Shahzad Ahmed v. The State 2010 SCMR 1221; Ateebur Rehman v. The State 2016 SCMR 1424; Ayaz Khan and another v. The State 2020 SCMR 350; Zahid Sarfraz Gill v. The State 2024 SCMR 934; Deputy Director ANF Karachi v. Syed Abdul Qayum 2001 SCMR 14 and Haji Muhammad Nazir v. The State 2008 SCMR 807 rel.

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

----Ss. 497 & 498---Bail---Observations of the Court---Scope---Observations of the Court recorded in bail order are tentative and should not prejudice the case of either party.

Shoukat for the Applicant.

Shahzado Saleem, A.P.G, Sindh for the State.

Date of hearing: 13th August, 2024.

Order

Adnan-ul-Karim Memon, J.---The Applicant Muhammad Yousif seeks his release on post-arrest bail in FIR No.131 of 2024 for the offense under section 9 (i) 3-C of the CNS Act at Police Station Sanghar. His earlier bail plea was declined by the trial court vide order dated 22.07.2024 on the premise that the applicant had been arrested on the spot and 2240 grams of charas had been recovered from his possession.

1. It is inter-alia contended that the applicant is innocent and has falsely been implicated in this case, he next contended that the place of the incident is a thickly populated area but no independent private person is cited as mashir, which is a clear violation of Section 103, Cr.P.C. makes the case highly doubtful. He has further argued that if the recovered narcotic weighed along with the black polythene bag, if weighed might have come to certain grounds that require further probe; and, the Chemical report is at variance, so far as the net weight and gross weight are concerned, in that eventuality the case of the applicant falls within the ambit of Section 9(b) of the CNS amended Act, 2022 and falls within the ambit of Section 497(2), Cr.P.C. He has further argued that the degree of punishment under Section 9(C) of the CNS Act, increases with the quantity of narcotics recovered, that the proviso to Section 9 (c) entails that only when the quantity of narcotic exceeds 10 KG, then the punishment could be enhanced. He lastly prayed for allowing the bail application.

2. Learned Additional Prosecutor General opposed the grant of bail to the applicant on the premise that the applicant/accused had been arrested on the spot and 2240 grams of charas had been recovered from his possession by the police party headed by the complainant SIP Muhammad Iqbal of P.S Sanghar. He added that the quantity of alleged charas falls under section 9(i)(3) (c) of the CNC (amended) Act and the punishment of such offense is extended up to 14 years, which falls within the prohibitory clause of section 497, Cr.P.C. he argued that sentences not only falls within prohibitory clause of section 497, Cr.P.C but also attracts the bar contained in section 51(1) of the Ibid Act. As per the prosecutor, the material available on record is sufficient to connect the applicant/accused with the commission of the offense. He further argued that the applicant/accused has not made out the case for further inquiry and his application may kindly be dismissed.

3. Before dealing with the merits of the respective contentions, it would be appropriate to refer to the guidelines given by the Supreme Court, while considering the application for grant of bail. The guidelines are that while deciding a bail application this Court has to consider the facts of the case narrated in the FIR, statements recorded under Section 161, Cr.P.C., other incriminating material against the accused, nature, and gravity of charge and pleas raised by the accused. In this regard, I am fortified by the decision of the Supreme Court rendered in the case of Shahzad Ahmed v. The State [2010 SCMR 1221]. Keeping in view the above principle, the learned counsel for the parties has been heard and the record has been perused.

4. The accusation against the applicant is that on 30.05.2024, he was arrested by Police and recovered 2240 grams of charas, such FIR was lodged at Police Station Sanghar. The alleged narcotics were dispatched to the Chemical Examiner on the next day; such chemical report dated 20.6.2024 is positive. Even, though I have perused the aforementioned test report, however, there appears a remarkable difference between the gross weight i.e. 2240, and the net weight of Charas which weighs 2236 grams, which is at variance and this discrepancy requires to be taken care of by the trial court after recording the statement of the police officials.

5. In such circumstances, the question is whether the applicant can be saddled with possession and transporting the narcotics in terms of 9(i)(3) (c) of the CNS (amended) Act because the applicant has been shown to have been arrested and police allegedly found black shopper bag containing purported four big and one small dark brown pieces charas; whereas the applicant claims that he was arrested from his house. Besides the defense has also levelled allegations against the prosecution witnesses of their malice in the matter. The Supreme Court also in the case of Ateebur Rehman v. The State (2016 SCMR 1424), which involved the recovery of 1014 grams of heroin, and Ayaz Khan and another v. The State (2020 SCMR 350), which involved the recovery of 1100 grams of heroin, granted bail in both cases. In the present case, the guilt or innocence of the applicants is yet to be determined by the trial Court. The prosecution has not placed any material to establish that the applicant is a previous convict, merely being involved in the same and similar offenses in the past cannot be ground to refuse bail as this case can be decided on merit, therefore, the record cannot be cited as precedent to refuse bail on this point. In such cases, the false implication can be judged by the trial court as the prosecution had sufficient time to comply with the directions of the Supreme Court in the case of Zahid Sarfarz Gill v. The State 2024 SCMR 934 where it has been held that the police and members of the Anti-Narcoic Force failed to record or photograph at the time of search of the accused when search, seizure or arrest is made, as the law permits the use of modern device or techniques, however in the present case the police has failed to apply the test so directed by the Supreme Court therefore in all cases about Narcotics, this modern device is required to be used in future cases without fail in terms of the ratio of the decision of the Supreme Court in the case of Zahid Sarfaraz Gill.

6. No doubt, the offense of trafficking the narcotic is a heinous one and affects society at large but it is a settled principle of law that every case is to be decided on its facts and circumstances. Again, in the case of Deputy Director ANF Karachi v. Syed Abdul Qayum, reported in 2001 SCMR 14, which was later, the Supreme Court ruled that despite the provisions contained in Section 51 of the Control of Narcotic Substances Act, 1997, the Sessions Court and High Court have the power to grant bail. For the sake of convenience and ready reference, the relevant part of the judgment is given below:

"Moreover, this Court in the case of Gul Zaman v. The State reported in 1999 SCMR 1271, has elaborately dealt with the application of sections 496, 497 and 498, Cr.P.C. in view of the bar contained in section 51 of the Act and it has been unanimously held that despite the provisions contained in section 51 of the Act, the Sessions Court and High Court have the power to grant bail."

1. Since the judgment rendered by the Supreme Court directed to record or take photographs at the time of search of the accused when search, seizure, or arrest is made as the law permits the use of modern devices or techniques but the police failed and neglected to adhere the dicta laid down by the Supreme Court, which is a constitutional command under Article 189 of the Constitution, therefore, appreciating whether the applicant was arrested with charas from his possession requires deeper appreciation. It is a well-settled principle of law that mere heinousness of offense is no ground to reject the bail plea. The basic concept of bail is that no innocent person's liberty is to be curtailed until and unless proven otherwise. In principle bail does not mean acquittal of the accused but only change of custody from police to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever required to be produced. On the aforesaid proposition, I am fortified with the decision of the Supreme Court on the case of Haji Muhammad Nazir v. The State (2008 SCMR 807).

2025 M L D 740

[Sindh (Mirpurkhas Bench)]

Before Adnan-ul-Karim Memon, J

Hemoon---Appellant

Versus

The State---Respondent

Criminal Jail Appeal No. S-39 of 2024 (Old No. 399 of 2019 Hyderabad), decided on 26th September, 2024.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Fair trial---Statements of witnesses recorded in absence of defence counsel---Accused was charged for committing murder of the cousin of complainant due to disagreement over grass-cutting---From the perusal of the evidence it appeared that the evidence of three witnesses had been recorded in the absence of the defence counsel--Thus, it was against the principle of fair trial and fair opportunity--Counsel for the complainant and prosecution department were confronted with the legal position of the case that the examination in chief of three witnesses were recorded in the absence of defense counsel, and their cross-examination was reserved on the request of his associate which was later on conducted---In a fair and transparent criminal justice system, the right to confrontation was the hallmark of fair trial protection---Right to confrontation was considered an integral element of the right to a fair trial---In the instant case, no doubt a counsel was engaged by the appellant to defend him, but he on the date when the case proceeded could not appear before the Trial Court, and in his absence, the examination in chief of the said witnesses were recorded in a capital sentence case---In such situation, the examination-in-chief of the witnesses, so recorded by the Trial Court, in the absence of legal counsel of the appellant could hardly be said to be under the requirement of law---Additionally, S.340 of the Cr.P.C. grants every accused person the right to be "defended" by a lawyer---Second issue was whether the crime weapon, a hatchet, was contaminated with human blood---Inconsistencies identified included discrepancies between the Chemical Examination Report, the Lash Chakas Form, the Danishtnama, the memo of dead body examination, and the memo of securing the crime weapon---Said discrepancies casted doubt on the conclusion that the hatchet contained human blood---To resolve said inconsistencies, the judicial propriety demanded that, the matter should be remitted to the Trial Court for further proceedings---Trial Court should record the examination in chief of said three witnesses and provide opportunity to defence counsel to cross-examine them---Said fact would provide a clear understanding of the circumstances surrounding the recovery and examination of the hatchet---Chemical Examiner should be examined by the Court to clarify the findings of their report and address any inconsistencies with the other documents---Chemical Examiner should explain the methodology used, the results obtained and the basis for their conclusion regarding the presence or absence of human blood on the hatchet---Defence counsel should be allowed to cross-examine the Chemical Examiner to challenge their findings and explore any potential weaknesses in their methodology or conclusions---Said fact would provide an opportunity for the defence to present their arguments and raise doubts about the reliability of the evidence---By following these steps, the Trial Court could ensure that the inconsistencies were thoroughly investigated, the evidence was properly evaluated and justice was served---Appeal was allowed by setting aside conviction and sentence and matter was remanded to the Trial Court for decision afresh---Appeal was disposed of accordingly.

Muhammad Arshad v. Qasim Ali and others 1992 SCMR 814; Muhammad Ashraf Javeed and another v. Muhammad Umar and others 2017 SCMR 1999; Irfan Ali v. The State 2015 SCMR 840; Khalid Mehmood v. The State and others 2021 SCMR 810; Muhammad Asif v. The State 2017 SCMR 486; Mst. Rukhsana Begum and others v. The State 2017 SCMR 596; Riasat Ali and others v. The State and another 2024 SCMR 1224 and Nadir Khoso and others v. The State and others 2024 YLR 1565 ref.

Ghulam Rasool Shah v. The State 2011 SCMR 735 and Muhammad Bashir v. Rukhsar PLD 2020 SC 334 rel.

(b) Administration of justice---

----If things, which are to be done in a manner prescribed by law, are done otherwise, it would be illegal.

Altaf Ahmed Shahid Abro for Appellant.

Dhani Bakhsh Mari, Assistant Prosecutor General, Sindh for the State.

Om Parkash H. Karmani along with Complainant Nanji.

Date of hearing: 26th September, 2024.

Judgment

Adnan-ul-Karim Memon, J.---Appellant Hemoon has filed the instant Criminal Jail Appeal against the judgment dated 14.11.2019, passed by the learned Additional Sessions Judge-I/ MCTC Umerkot in Sessions Case No. 89 of 2019 (Re-The State v. Hemoon) arising out of FIR No.27 of 2019 under section 302 P.P.C. of Police Station Shadi Palli, whereby the appellant was convicted and sentenced in following terms:-

"In view of the above-discussed points which are answered as affirmative, I am of the opinion that prosecution has successfully established the charge against appellant Hemoon for murder of deceased Thaku. In order to determine the quantum of sentence it is to be seen that appellant had caused only single hatchet blow and that too blunt side which is not gruesome and brutal murder. Such situation gave rise to the mitigating circumstances, due to which capital punishment of death would be harsh. Therefore, taking a lenient view I convict, the appellant Hemoon son of Heero alias Habro Kolhi under section 265-H(2) Cr.P.C. for offence punishable under section 302(b) P.P.C. and sentence him to life imprisonment as Tazir and to pay Rs.100,000/- as compensation under section 544(A) Cr.P.C with direction to pay the same to legal heirs of deceased. In case of default, he shall suffer six months more simple imprisonment. The benefit of section 382-B Cr.P.C is extended to the appellant. The appellant is produced in custody and remanded back to Central Prison Hyderabad to serve out the sentence as per law. Copy of the judgment be supplied to convicted appellant free of cost under receipt.

1. The facts of the case are that On September 4, 2019, Hemoon, armed with a hatchet, attacked Thaku, a cousin of the complainant, in a village. The attack was motivated by a previous disagreement over grass-cutting. Thaku sustained fatal injuries and died later in a hospital. It is alleged that Nanji (Thaku's brother), Kewal, and Shevo witnessed the attack and attempted to intervene but were unsuccessful. The incident was reported to the police on the same day, and a post-mortem examination was conducted at the Taluka Hospital in Pithoro, the Investigating Officer (IO) examined the dead body of the deceased, prepared necessary documents, and collected evidence. He then transferred the case to Inspector Azizullah Seenharo, who continued the investigation by securing evidence, recording statements, arresting the suspect, and recovering the murder weapon (hatchet). The hatchet was sent for chemical analysis, and the IO submitted a charge sheet against the appellant to the concerned Magistrate, who referred the case to the Sessions Judge for trial.

2. The appellant was formally charged with a crime. He pleaded not guilty and requested for fair trial. During the trial, the prosecution examined PW-1 Dr. Mahadev as Ex.03. He produced a police letter and post-mortem report at Ex.03-A and 03-B respectively. PW-2 Tapedar Hamzo was examined at Ex.04, he produced the letter of police and site plan as Ex.04-A and 04-B. PW-03 complainant Nanji was examined at Ex.05. He produced FIR at Ex.05-A. PW-04 Kewal Ram was examined at Ex.06, he produced a receipt of the dead body, memo of site inspection, memo of arrest, and memo of recovery as Ex.06-A to 06-D respectively. PW-5 Kirshan was examined as Ex.07, he has produced lash chakas form, Danishtnama, memo of the dead body, and memo of cloths of deceased as Ex.07-A to 07-D. PW-07 IO/ ASI Muhammad Sharff was examined as Ex.09. He produced D.D entries Nos. 09 and 10 over one leaf Dated: 04-09-2019 as Ex.09-A and D.D entry No. 13 dated: 04-09-2019 as Ex.09-B. The learned ADPP had given up evidence of PW Shevo through statement as Ex.10. PW-08 I.O/Inspector Azizullah Seenharo was examined as Ex.11. He produced a letter addressed to the chemical examiner, report of the chemical examiner and his movement D.D entries as Ex.11-A to 11-F.

3. The statement of appellant was recorded under section 342 Cr.P.C. as Exh.13, appellant denied the allegations levelled by the prosecution and claimed to be innocent. According to him, the deceased had sustained injury due to a road accident and died, but the complainant due to a dispute with him over an outstanding amount, falsely implicated him in this case to settle the dispute as per his wish. However neither he examined himself on oath as required under section 340(2), Cr.P.C. nor lead defense evidence. After hearing the parties, the learned trial Court passed impugned judgment and convicted the appellant as discussed supra.

4. At the outset the learned counsel for the appellant argued that the absence of defense counsel during the examination-in-chief of witnesses in a capital murder case violated the accused's fundamental right to a fair trial. He emphasized that the defense counsel's presence is crucial for ensuring the integrity of the evidence and preparing a strong case. Additionally, the absence of bloodstains on the alleged crime weapon, despite a chemical report suggesting the presence of blood, creates a reasonable doubt in the prosecution's story, potentially benefiting the appellant. He argued that the prosecution failed to prove the appellant's guilt beyond a reasonable doubt. He criticized the prosecution witnesses as biased and questioned the credibility of their testimonies. He also pointed out inconsistencies in the timeline of events and the evidence presented. He emphasized the lack of independent witnesses, bloodstains, and the possibility of a prior dispute between the deceased and the appellant. He further argued that the sketch of the scene did not indicate the appellant's presence, and the medical officer admitted that the deceased's injuries could have been caused by a fall or other means. However, he highlighted the chemical report, which confirmed human blood on the crime weapon. However, the Lash chakas form, Danishtnama, memo of dead body examination, and memo of recovery of hatchet do not transpire that these items were stained with any blood at the time of recovery, which shows false involvement of the appellant in the present case. He relied upon the cases of Muhammad Arshad v. Qasim Ali and others [1992 SCMR 814], Muhammad Ashraf Javeed and another v. Muhammad Umar and others [2017 SCMR 1999], Irfan Ali v. The State [2015 SCMR 840], Khalid Mehmood v. The State and others [2021 SCMR 810], Muhammad Asif v. The State [2017 SCMR 486], Mst. Rukhsana Begum and others v. The State [2017 SCMR 596], Riasat Ali and others v. The State and another [2024 SCFMR 1224] and Nadir Khoso and others v. The State and others [2024 YLR 1565], Therefore, he prayed for the acquittal of the appellant on the grounds of reasonable doubt.

5. At the initial stage, the learned Additional Prosecutor General assisted by the learned counsel for the complainant argued that the appellant' was named in the FIR as the killer, supported by medical and eye-witness evidence. The crime weapon, a hatchet, was recovered at the accused's pointing, stained with blood. The witnesses were naturally at the scene as it was near their homes. They requested the accused's conviction be maintained.

6. I have heard the learned counsel for the parties and perused the record with their assistance and case law cited at the bar.

7. PW-1 Dr. Mahadev deposed in cross-examination that except for the fatal injury, no other mark of violence was seen on the dead body. He admitted that the dead body was 06-08 hours old and that possibly such injury could have been caused by falling from a wall or otherwise; he admitted that he prepared a post-mortem report after consulting with a senior medical officer. He admitted that he did not preserve the viscera. He admitted that blood was oozing from the wound and left ear of the deceased.

8. PW-03 Complainant Nanji deposed in the cross-examination that he did not make a complaint to the police on 03.09.2019 when hot words were exchanged between the accused and deceased. He admitted that he did not make a complaint regarding the hot word exchanged between the accused and the deceased to the family members of the accused. He admitted that he along with PWs Thakoo, Kewal and Shivo went to their land. He admitted that Deceased Thakoo was his brother PW Kewal was/ is his brother and PW Shivo was/ is his son. He admitted that the accused Hemoon was/is his cousin. He admitted that he did not inform the police of the Police Station concerned when they shifted the dead body to Hyderabad. He admitted that the Police did not obtain his signature on paper while visiting place of incident. At the time of the site inspection, his brother Kewal and his son Shivo were present there.

9. PW-04 Kewal Ram admitted in the cross-examination that there was/ is no blood mark on the hatchet.

10. PW-5 Kirshan deposed in the cross-examination that the clothes of the deceased were sealed in Taluka Hospital Pithoro.

11. PW-06 Pirago deposed in the cross-examination that Dr. Mahadev sealed the clothes of the deceased.

12. PW-07 I.O/ASI Muhammad Sharif deposed in the cross-examination that the complainant had not come to the police station to obtain a police letter and he saw the dead body of deceased Thakoo in the mortuary.

13. PW-08 I.O/Inspector Azizullah Seenharo deposed in the cross-examination that village Idrees Nohri was near to place of incident. He did not enquire about the incident from the nearby villagers. He admitted that there was no dry blood mark on the hatchet. He admitted that the hatchet can be purchased from the market along with its handle. He admitted that he received the chemical report with a delay of about 20 days.

14. The legal issue in this case is whether the examination-in-chief of witnesses recorded in the absence of the accused's legal counsel was/violates his right to a fair trial.

15. The learned counsel for the appellant pointed out that the proceedings initiated against the appellant by the trial court were/are not under the law, as the associate of the defense counsel did not have the legal authority to record the examination in chief of the witnesses in the absence of the defense counsel. This violated the accused's right to a fair trial under Article 10-A of the Constitution.

16. From the perusal of the evidence it appears that the evidence of Pws Nanji, Kewal Ram and Kirshan had been recorded in the absence of the defense counsel. It is against the principle of fair trial and fair opportunity, therefore it is suggested that the trial has been vitiated as the case involves capital punishment, in view of the dictum as laid down in the case of Ghulam Rasool Shah v. The State (2011 SCMR 735) the Supreme Court has held as under:-

"14. Undeniably, to ascertain eh truth or falsity to a charge the statements of the witnesses are judged by conducting cross-examination. It is always said to be the most powerful engine to test the credibility. Statements recorded without going through mill of cross-examination is bound to result in injustice and substantial injustice may occur to an accused. Safer principle is to allow cross-examination by granting reasonable opportunity. Similarly, provision of a defence counsel at State expenses should be out of lawyers having acumen, interest and some experience of trial of murder case. Though the accused have no choice claiming engagement of a particular counsel at State expenses yet he should be given the choice to select one of the counsel out of list of defence counsel maintained by the Court.

1. Having considered the case of the appellants, we are of the view that the appellants should be given time to engage a counsel privately of their own choice, failing which the learned trial Court shall provide them the defence counsel at state expenses of their choice, out of the list maintained by the Court. If the appellants fail to engage a counsel of their own or refuse to be represented by a defence counsel provided at State expenses, the Court will be at liberty to proceed with the trial, and the defence counsel so appointed shall be called upon to conduct cross-examination on prosecution witnesses and call for evidence in defence.

2. For what has been discussed above, we allow the appeals, set aside the judgment of the learned Courts below, and remit the case back to the trial Court for a de novo trial. Learned trial Court shall consider the question of its jurisdiction in terms of section 38 of the Anti-Terrorism Act, 1997, before framing of charge. The appellants shall be treated as, under trial prisoners".

3. At this stage, the learned counsel for the complainant and learned APG were confronted with the legal position of the case that the examination in chief of witnesses Nanji (Ex.05), Kewal Ram (Ex.06) and Kirshan (Ex.07) were recorded in the absence of defense counsel, and their cross-examination was reserved on the request of his associate which was later on conducted.

4. In a fair and transparent criminal justice system, the right to confrontation is the hallmark of fair trial protection. The right to confrontation is considered an integral element of the right to a fair trial. It was held in the case of Muhammad Bashir v. Rukhsar (PLD 2020 SC 334) by the Supreme Court of Pakistan that the right to confront one's accuser is a vital part of the right to a fair trial. It is well-settled law that a right provided under the statute cannot be abridged or taken away without an explicit provision of law, which in the present case is not available in statute books. A right provided under the law, in the absence of a provision to the contrary, cannot be impliedly taken away. Even otherwise, after declaring that the right to confront one's accuser is part of the right to fair trial ensured under Article 10-A of the Constitution, had there been any provision to abridge such right, it would have been ultra vires conflicting with the constitution. Besides in a murder case, under Paragraph 6 of Chapter VII of Federal Capital and Sindh Courts Criminal Circulars, could only be proceeded on the appearance of a qualified legal practitioner engaged by the accused himself or engaged for the accused at State expenses. In the instant case, no doubt a counsel was engaged by the appellant to defend him, but he on the date when the case proceeded could not appear before the learned trial Court, and in his absence, the examination in chief of the aforesaid witnesses were recorded in capital sentence cease. In that situation, the examination-in-chief of the witnesses, so recorded by the learned trial Court, in the absence of legal counsel of the appellant could hardly be said to be under the requirement of law. It is settled by now that things are to be done in a manner prescribed by law if done otherwise, would be illegal. In these circumstances, the appellant has the right to contend through his learned counsel that he has been denied the right to a fair trial.

5. Additionally, Section 340 of the Cr.P.C. grants every accused person the right to be "defended" by a lawyer. This is different from simply being "represented" by a lawyer. This right includes access to the lawyer for private consultations and sufficient time for the lawyer to prepare the case. The law provides guidelines on how the right to be defended should be implemented. The importance of ensuring that accused persons have adequate access to legal representation and sufficient time for their lawyers prepare their cases. This is crucial for upholding the principles of justice and ensuring that the accused person's rights are protected. Besides, there are inconsistencies between various documents related to a case involving a crime weapon.

6. The second issue is whether the crime weapon, a hatchet, was contaminated with human blood. The inconsistencies identified include discrepancies between the Chemical Examination Report, the lash chakas form, the danishtnama, the memo of dead body examination, and the memo of securing the crime weapon. These discrepancies cast doubt on the conclusion that the hatchet contained human blood.

2025 M L D 753

[Sindh]

Before Muhammad Karim Khan Agha, J

Bashir---Appellant

Versus

The State---Respondent

Criminal Jail Appeal No. 618 of 2021, decided on 31st October, 2024.

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

----Ss. 302(b) & 201---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender---Appreciation of evidence---Ocular account not supported by medical evidence---Accused was charged for committing murder of his wife/daughter of complainant---In the present case, the appellant had maintained that his wife committed suicide when he was out of the house and when he reached the house the house was locked and he entered via the ventilator---Said method of entry was corroborated by other witness who was an independent witness and who lived above the appellant and would have no reason to give false evidence---Moreover, there was no eye-witness to the incident and no last seen evidence connecting the accused with his wife in respect of the incident---House was locked from the inside which only the wife could have done---According to the complainant the deceased complained to him about the accused maltreating her---Said fact was not supported by any other evidence on record---Prosecution witness who lived immediately upstairs from the appellant did not hear any arguments or quarrel coming from the house below where the accused and the deceased was living---Medical evidence did not support any recent acts of violence against the deceased apart from the neck injury---Hence there was no motive for the appellant to murder his wife especially as they had five children between them---First Information Report led to the exhumation of the body of the deceased on orders of the Court and the body of the deceased was exhumed by a team of medical experts who also carried out a post mortem---Medical evidence showed that the board was of the opinion that the death occurred due to asphyxia which resulted from constrictions of neck and hard and blunt injuries leading to cardio-respiratory failure---Moreover, the marks of injuries were noted at the time of exhumation of dead body---No other marks of injuries were found on the dead body of the deceased lady---Based on the above medical evidence without an eye-witness to the murder and the appellant's story that the deceased hung herself the Court found that the prosecution had not been able to prove beyond a reasonable doubt that the deceased was murdered and did not commit suicide as per the defence case---Appeal against conviction was allowed, in circumstances.

Peeru Ram v. The State 2019 PCr.LJ 325 and Deen Mohammad v. The State 2016 PCr.LJ Note 86 ref.

Lal Khan v. The State 2006 SCMR 1846 rel.

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

----Ss. 302(b) & 201---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender---Appreciation of evidence---Recovery of piece of rope on the pointation of accused---Accused was charged for committing murder of his wife/daughter of complainant---Appellant led the police to a piece of rope on his pointation which was either used to murder the deceased or for the deceased to hang herself as in effect the cause of death was asphyxia which could have been caused by manual strangulation or suicide by being hung from a fan as was the defence case---Independent witness, who lived above the appellant, was not used as a mashir on a single occasion when he was ready, available and on the spot and the police instead called mashirs who lived a distance of three hours away, all of whom were related to the complainant---Appeal against conviction was allowed, in circumstances.

Ameet Kumar for Appellant.

Muhammad Iqbal Awan, Addl. Prosecutor General, Sindh for the State.

Date of hearing: 23rd October, 2024.

Judgment

Muhammad Karim Khan Agha, J.---Appellant Bashir Ahmed was tried in the Sessions Court, Thatta in Sessions Case No.306 of 2013 in respect of Crime No. 140/2013 registered under Sections 302 and 201 P.P.C. at P.S. Thatta and after full-fledged trial vide judgment dated 14.03.2016, he was convicted under section 302(b) P.P.C. and sentenced to suffer R.I. for life with fine of Rs.100,000/- as compensation in terms of Section 544 Cr.P.C. which would be paid to the legal heirs of deceased and in case of default, the accused shall suffer further S.I. for six months. He was also convicted under Section 201 P.P.C. and sentenced to suffer R.I. for four years with fine of Rs.5000/- and in case of default of payment, he shall suffer further S.I. for a period of one month more. Both the sentences were to run concurrently; however, the benefit of Section 382-B Cr.P.C. was extended to the appellant.

1. The brief facts of the prosecution case are that complainant Haji Noor Ahmed son of Haji Abdul Fattah Brohi lodged FIR on 19.08.2013 at 1645 hours, stating therein that his daughter Mst.Haleema; aged about 32/33 years was married with his cousin namely Bashir Ahmed Brohi, the spouse were usually residing in their Village Station Road Bochari town, Taluka Parro, District Shaheed Benazirabad and from the said wedlock, two sons and three daughters were born. Per him, accused Bashir Ahmed Brohi used to maltreat his daughter; who also complained him several times, later-on his cousin Bashir Ahmed along with his family members shifted to Thatta. On 13.08.2013 the complainant, was available at his village where he received information that his daughter namely Mst. Haleema has died. Accordingly, complainant, his son Ali Asghar Brohi and cousin Nabi Bux Brohi along with his family came to Thatta where they came to know that Bashir Ahmed Brohi has taken away the dead body to the house of husband of his sister at Pathan Colony, the complainant party, therefore went to Pathan Colony where Bashir Ahmed and others were ready to perform Namaz-e- Janaza, they sent their ladies in the house and accompanied with then, to perform Namaz-e-Janaza and buried the dead body at Makli graveyard. After burial ceremony, accused Bashir Ahmed Brohi informed the complainant that he went to Aamri Stop for purchasing milk in the morning at 06:00 am and returned back 08:00 am, his wife (deceased) was in the room and door was inside locked, he called her but she did not open the door, then he saw from the ventilator that his wife has committed suicide by hanging herself through rope with fan. The complainant further disclosed that after three days they returned to their village along with family where the complainant came to know that accused Bashir Ahmed Brohi had committed the murder of deceased lady in the above said manner. Hence, the complainant came at Police Station Thatta and registered the FIR.

2. After completion of investigation I.O. submitted charge sheet against the accused person to which he plead not guilty and claimed trial.

3. The prosecution in order to prove its case examined 8 witnesses and exhibited various documents and other items. The statement of accused was recorded under Section 342 Cr.P.C in which he denied all the allegations levelled against him claiming that his wife had committed suicide and he did not murder her.

4. After hearing the parties and appreciating the evidence on record the trial court convicted the appellant and sentenced him as stated earlier in this judgment and hence, the appellant has filed this appeal against his conviction and sentence.

5. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

6. Learned counsel for the appellant has contended that the appellant is completely innocent and that his wife committed suicide; that the FIR was delayed by an unexplained period of 6 days; that the medical reports do not definitively find that the deceased was murdered; that the appellant had no motive to murder his wife; that there was no eye-witness to the deceased's death; that the rope was foisted on him and that for any or all of the above reasons the appellant should be acquitted of the charge by being extended the benefit of the doubt. In support of his contentions he placed reliance on the cases of Lal Khan v. The State (2006 SCMR 1846), Peeru Ram v. The State (2019 PCr.LJ 325) and one unreported judgment of Sindh High Court passed in Cr. Jail Appeal No.S-01 of 2011 Re: Bhawan Das v. The State.

7. On the other hand learned APG appearing on behalf of the State has fully supported the impugned judgment by relying on the evidence on record and contended that the appeal is without merit and should be dismissed. He has placed reliance on the case of Deen Mohammad v. The State (2016 P Cr. LJ Note-86).

8. I have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the appellant's counsel, and the impugned judgment with their able assistance and have considered the relevant law including the case law cited at the bar.

9. I find that there are two main issues in this case. The first is whether the deceased committed suicide or was murdered and if murdered, secondly whether the prosecution have proved beyond a reasonable double that it was the appellant who murdered the deceased/his wife at the said time, date and location as per charge.

10. After my reassessment of the evidence I find that the prosecution has NOT proved the charge beyond a reasonable doubt namely that the deceased was murdered by the appellant as opposed to committing suicide for which the appellant was convicted keeping in view that each criminal case is based on its own particular facts, circumstances and evidence for the following reasons.

(a) That the complainant in his evidence states that on 13.08.13 he was informed by his son Asghar Ali Brohi, who had been informed by someone else, that his daughter had died. Hence he left his village in Shaheed Benazirabad for Thatta where his daughter Mst. Haleema (deceased) was living with her husband/accused and reached the accused house after about 3 hours. The complainant finding the deceased house was locked went to house of Behnoi namely Sher Muhammed where funeral prayers were offered and the dead body of the deceased was brought and buried. The accused was at the burial ceremony and they stayed behind for three days to receive condolences before returning home. He also inquired that how Mst. Haleema expired from the accused, who disclosed to him that on the day of Incident, at about 06:00 am, he went to purchase milk, his wife and children were present at the house. He further disclosed that he returned at about 08:00 am to the house and knocked-up the door but his wife did not open. He further disclosed that he scaled-up from the ventilator of bathroom situated at the southern side of the house. He disclosed further that when he entered inside the room he saw that his wife was hanged off with wings of the fan. He further disclosed that he removed the dead body from the position and then shifted to the house of his Behnoi at Pathan Colony. After three days, we went back to our village. I received an anonymous call that it was not the case of suicide but of murder by the accused. Then on 19.08.2013 I lodged the FIR at police station of the murder of my daughter against the accused. Hence the delay in the FIR has been fully explained and is not fatal to the prosecution case.

(b) One of the key issues is how the deceased actually died. Was it suicide or murder by strangulation and if so by whom?

(c) From the outset the appellant has maintained that his wife committed suicide when he was out of the house and when he reached the house the house was locked and he entered via the ventilator. This method of entry was corroborated by PW 6 Saleh Mohammed who was an independent witness and who lived above the appellant and would have no reason to give false evidence.

(d) There was no eye-witness to the incident and no last seen evidence connecting the accused with his wife in respect of the incident. The house was locked from the inside which only the wife could have done.

(e) According to the complainant the deceased complained to him about the accused mal treating her. This however is not supported by any other evidence on record. For example, the complainant had been living in his village whilst the deceased had moved to Thatta with her husband about 20 years ago. PW 6 Saleh Muhammed who lived immediately upstairs from the appellant did not hear any arguments or quarrel coming from the house below where the accused and the deceased was living and the medical evidence did not support any recent acts of violence against the deceased apart from the neck injury. Hence their was no motive for the appellant to murder his wife especially as they had five children between them.

(f) The FIR lead to the exhumation of the body of the deceased on orders of the court and on 02.10.13 the body of the deceased was exhumed by a team of medical experts who also carried out a post mortem. The Dr's concerned who gave evidence PW 4 Dr.Nasreen Baloch and PW 7 Dr.Summaya found as under as regards the injuries to the deceased;

"Surface wounds and injuries.

Injury No.1. Contusions with deep blackish red discoloration on the upper lateral aspect of neck at the level of angle of Mandeville and under chin in the manner of imprint of rope on right and left sides., Injury No.2. Contusions 8 cm x 6 cm, blackish red in color on the right shoulder, anterior aspect.

Injury No.3. Contusions 6 cm x 6 cm, blackish red on left shoulder anterior aspect....

Opinion.

After examination the board was of the opinion that the death occurred due to asphyxia which resulted from constrictions of neck and hard and blunt injuries leading to cardio-respiratory failure.........

Cross to Mr. Faisal Ahmed Memon advocate for the accused.

Except the marks of injuries I have noted at the time of exhumation of dead body I did not find any other marks of injuries on the dead body of the deceased lady..........

Cross question under Section 161 Qanun-e-Shahadat Order.

Q. Whether in your opinion, may it be case of suicide or murder?

Ans: On the basis of injury No.1 where manner of imprint of rope on both sides of the neck is horizontal, is strongly suggestive of the manner of death being homicide."

(g) Based on the above medical evidence without an eye-witness to the murder and the appellants story that the deceased hung herself I find that the prosecution have not been above to prove beyond a reasonable doubt that the deceased was murdered and did not commit suicide as per the defence case. Even the medical evidence was not definitive of murder but was only highly suggestive which did not rule out the fact that the deceased's injuries might have been caused by her committing suicide by her hanging herself by rope from a fan as is the defence case. In this respect reliance is placed on the case of Lal Khan (Supra) which held as under in material part;

"The hanging is most common form of suicide whereas homicidal hanging is rare which may occur in very unusual circumstances and in the medical jurisprudence, no definite opinion can be given on the basis of ligature mark around the neck whether death was homicidal or suicidal. The causation of an injury found on the person of deceased, may be either homicidal or suicidal and in that the prosecution is under heavy burden to prove that the death was homicide and not suicide. "

(h) Even if the deceased was murdered the only piece of evidence against the appellant is that he apparently lead the police to a piece of rope on his pointation which was either used to murder the deceased or for the deceased to hang herself as in effect the cause of death was asphyxia which could have been caused by manual strangulation or suicide by being hung from a fan as is the defence case.

2025 M L D 770

[Sindh]

Before Muhammad Saleem Jessar, J

Hassan Alam and another---Applicants

Versus

The State---Respondent

Criminal Bail Application No. 1809 of 2024, decided on 7th October, 2024.

Criminal Procedure Code ( V of 1898 ) ---

---- Ss. 497(2) & 498 ---Penal Code ( XLV of 1860) , Ss. 353, 186, 147, 148 & 149---Assault or criminal force to deters public servant from discharge of his duty, obstructing public servant in discharge of public functions, rioting, armed with deadly weapon , unlawful assembly--- Pre-arrest bail , grant of --- Bailable offence(s) --- Further inquiry---Sessions Court declined grant of pre-arrest bail to the accused persons(petitioners) --- Validity ---No doubt, the applicants were nominated in the FIR, however, the offences with which they had been charged, were bailable---Grant of bail in bailable offence is the indefeasible right of an accused---In present case, though the offences were bailable and grant of bail in bailable offences is indefeasible right of the accused , even then request of the petitioner /accused was turned down by the Court below on flimsy grounds --- Case against the applicants required further inquiry in terms of subsection (2) to S.497 Cr.P.C.---Interim bail already granted to the applicants, was confirmed in circumstances.

Mian Mahmud Ali Qasuri and others v. The State PLD 1963 SC 478; Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Muhammad Tanveer v. The State and another PLD 2017 SC 733 ref.

Muhammad Umar Panhwar for Applicants.

Saleem Akhtar Buriro, Addl. Prosecutor General, Sindh along with SIP Mushtaq of P.S Mominabad, Karachi for the State.

Date of hearing: 7th October, 2024.

Order

Muhammad Saleem Jessar, J.---Through this application, applicants Hassan Alam and Muhammad Rashid seek their admission to pre-arrest bail in Crime No.339 of 2024 registered with Police Station Mominabad, Karachi, for the offences punishable to Sections 147, 148, 149, 353 and 186 P.P.C. The applicants preferred their anticipatory bail before the Court of Sessions wherefrom it was assigned to Addl. Sessions Judge-XII, Karachi (West) vide Criminal Bail Application No.3157 of 2024 (re-Hassan Alam and another v. The State), who after hearing the parties, has turned down their request through order dated 29.07.2024; hence, instant bail application has been maintained.

1. Since the facts of the prosecution case are already mentioned in the FIR, which is annexed with the Court file, therefore, there is no need to reproduce the same.

2. Learned counsel for the applicants submits that offence(s) with which applicants have been charged, are bailable and in bailable offence bail becomes right of the accused, therefore, prays for confirmation of the bail.

3. On the other hand, learned Addl. P.G, Sindh appearing for the State, opposes the bail application; however, he could not controvert the fact that offences with which accused stand charged, are bailable.

4. Heard arguments and perused record. No doubt, the applicants are nominated in the FIR; however, the offences with which applicants have been charged, are bailable. It is settled-cum-recognized principle of law that grant of bail in bailable offence is the right of an accused even once bail granted in bailable offence cannot be cancelled. Reference can be had from the dicta laid down by Hon'ble Supreme Court of Pakistan in case of Mian Mahmud Ali Qasuri and others v. The State (PLD 1963 SC 478) whereby learned Bench had laid down esteemed dicta in concluding para of the judgment which reads as under;)_

"…………The policy of the Code seems to be that in the case of bailable offences the person accused has the indefeasible right to grant of bail subject of course to satisfactory sureties being offered, if sureties are considered necessary. There is admittedly no provision in the Code permitting cancellation of such a bail. Bail is not a mere privilege in such cases but a right of the subject whose liberty is regarded as a precious asset to the preserved undiminished………"

1. In instant case, though the offences are bailable and per settled principle of law, grant of bail in bailable offences is indefeasible right of the accused even then their request was turned down by the Court below on flimsy grounds and such practice has not been approved by the superior Courts.

2. I am also fortified with dicta laid down by the Hon'ble Supreme Court of Pakistan in case of Tariq Bashir and 5 others v. The State (PLD 1995 SC 34), which was again recognized and maintained by the Hon'ble Supreme Court of Pakistan in case of Muhammad Tanveer v. The State and another (PLD 2017 SC 733). In para-6 of the order in case of Muhammad Tanveer (Supra), following dicta has been laid down;_

"6. We are shocked and disturbed to observe that in cases of this nature, not falling within the prohibition contained in section 497, Cr.P.C., invariably grant of bail is refused on flimsy grounds. This practice should come to an end because the public, particularly accused persons charged for such offences are unnecessarily burdened with extra expenditure and this Court is heavily taxed because leave petitions in hundreds are piling up in this Court and the diary of the Court is congested with such like petitions. This phenomenon is growing tremendously, thus, cannot be lightly ignored as precious time of the Court is wasted in disposal of such petitions. This Court is purely a constitutional Court to deal with intricate questions of law and Constitution and to lay down guiding principle for the Courts of the country where law points require interpretation."

2025 M L D 775

[Sindh (Mirpurkhas Bench)]

Before Adnan-ul-Karim Memon, J

Gul Bahar and another---Applicants

Versus

The State---Respondent

Criminal Bail Application No. S-193 of 2024, decided on 12th September, 2024.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324, 337-A(i), 337-F(i), 337-F(iv), 504, 147, 148 & 149---Attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-damiyah, ghayr-jaifah-mudihah, intentional insult with intent to provoke breach of peace rioting, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Accusation against the applicants were that they caused severe injuries to three persons on their vital and non-vital parts---Accused were named in the FIR with specific roles---Complainant alleged that the accused committed acts of violence, including assault with deadly weapons, resulting in injuries to multiple individuals---First Information Report detailed the accused's actions, including the use of a gun, hatchet and sticks---Witnesses corroborated the complainant's account, and medical evidence supported the claims of injuries---Motive for the attack was also outlined in the FIR, stemming from a dispute over payment---Injuries sustained by the victims were classified under various Sections of P.P.C including Ss. 337-D & 324---Such offences were non-bailable and carried potential penalties including imprisonment and fines---Based on the evidence presented, including the FIR, the witnesses' statements, the medical reports and recovered weapons, there was a prima facie case against the accused---Accused had not demonstrated any grounds for further inquiry---Bail petition was dismissed, in circumstances.

Mir Muhammad v. The State 2024 SCMR 805; Muhammad Ijaz v. The State 2022 SCMR 1271; Muhammad Faisal v. The State and another 2020 SCMR 971 and Abd-ur-Razak alias Karo v. The State 2012 MLD 1656 ref.

Zafar Hayat for Applicant.

Mian Taaj Muhammad Keerio for the Complainant along with Complainant and two injured.

Dhani Bux Mari, Assistant P.G Sindh.

order

Adnan-ul-Karim Memon, J.---The applicants Gul Bahar and Ghulam Murtaza are seeking post-arrest bail in FIR No.31 of 2024 for the offenses under sections 324, 337-F(iv), A(i), F(i), 147, 148, 149, 504 P.P.C at Police Station Chotiyaroon.

1. The trial Court declined their earlier bail plea vide order dated 24.07.2024 on the premise that the applicants are nominated in FIR with specific roles for causing severe injuries to the victims on vital and non-vital parts, with intent to commit their qatl-i-amd; that delay in registration of FIR is properly explained; that accusations are supported by statements of witnesses under section 161 Cr.P.C., coupled with medicolegal certificate; that the alleged offense carries prohibition contained in Section 497 Cr.P.C.

2. The accusation against the applicants are that on 07-07.2024, they caused severe injuries to injured Asim Mansoor, Sher Usama, and Ghulam Mustafa on their vital and non-vital parts. Such a report of the incident was given to police on 10.07.2024.

2025 M L D 781

[Sindh]

Before Muhammad Saleem Jessar, J

Muhammad Shahid---Applicant

Versus

The State---Respondent

Criminal Bail Application No. 2523 of 2023, decided on 21st August, 2024.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), S.489-F---Constitution of Pakistan, Art.4---Dishonouring of cheque---Ad-interim pre-arrest bail, confirmation of---Offence not falling in prohibitory clause of S.497, Cr.P.C.---Bail---Purpose---Bail is not meant to be punitive or preventive but to ensure the accused's presence during the trial---Every person is presumed innocent until proven guilty and pre-conviction detention should be used only to secure attendance---Right to life and liberty is guaranteed under Art.4 of the Constitution---Offence under S.489-F is punishable up to 3 years, which does not warrant pre-trial detention under S.497, Cr.P.C.---Applicant had been regularly appearing before the Trial Court and had not frustrated the proceedings---Complainant's failure to attend court proceedings suggested a lack of interest in pursuing the case, thus, refusal of bail would not serve any useful purpose, rather there was serious apprehension of humiliation and harassment of the applicant at the hands of police---Disputed amount as per alleged cheque was a meager one---It was yet to be determined by the Trial Court whether an offence under S.489-F, P.P.C., was constituted or otherwise---Ad-interim pre-arrest bail already granted to the accused was confirmed, in circumstances.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel.

Applicant present in person in court on bail.

Nemo for the Complainant.

Siraj Ali Khan Chandio, Additional Prosecutor General, Sindh for the State.

Date of hearing: 21st August, 2024.

Order

Muhammad Saleem Jessar, J.---Through instant bail application, applicant Muhammad Shahid son of Muhammad Ramzan seeks his admission on pre- arrest bail in Crime No. 153/2021 registered with Police Station KIA Karachi under section 489-F P.P.C.. The applicant has approached court of Sessions for anticipatory bail vide Crl. Bail Application No. 2729 of 2023 however, it was assigned to learned 1st Additional Sessions Judge/MCTC Karachi-Central, who after hearing the parties has declined the request vide order dated 30.10.2023. Hence this application.

1. Record shows that vide order dated 07.11.2023 applicant was admitted to ad-interim pre-arrest bail and today the same is fixed for confirmation of said order or otherwise.

2. At the very outset, applicant submits that the complainant is not appearing before the trial court, hence case is no proceeding there. He further submits that the conduct of complainant before this court is also similar as before trial court hence prayed that by considering above facts, this application may be allowed and interim pre arrest bail granted earlier to him may be confirmed.

2025 M L D 789

[Sindh]

Before Shamsuddin Abbasi, J

Agha Imtiaz Ali Khan---Petitioner

Versus

Mrs. Syeda Tatheer Fatima and another---Respondents

Constitutional Petition Nos. S-106 of 2022, decided on 23rd September, 2024.

Civil Procedure Code (V of 1908)---

----S. 12(2) & O.1, R. 10(2)---Rent matter---Eviction of tenant---Ex-parte ejectment order---Respondent No. 1 filed ejectment application against respondent No. 2---Rent controller allowed the eviction application by way of an ex-parte order---Petitioner filed an application under S.12(2) read with O.1, R. 10(2), C.P.C., seeking recalling of the ex-parte ejectment order on the ground that the same was obtained by way of fraud, misrepresentation and concealment of true facts, but same was dismissed---Appeal was filed, which was also dismissed---Validity---Respondent No. 1 filed ejectment application against respondent No. 2, who was real brother of the petitioner, however, the petitioner did not bother to bring on record true facts as to tenancy between respondents Nos. 1 and 2---Petitioner used to deposit the rent in bank on behalf of his brother through cheques as admitted by him in cross-examination---Case of the petitioner hinged merely on a sale agreement said to have been executed in his favour by the respondent No. 1 for which he availed civil remedy by filing a suit for specific performance and permanent injunction, but failed to succeed either before the Trial Court or before the Appellate Court, whereby the claim of the petitioner as to purchase of the demised premises from the respondent No. 1 was declined---Findings of fact given by Rent Controller were concurred by the Appellate Court---Under constitutional jurisdiction, the Court avoids to give contrary findings until and unless the same are proved to be perverse, based on misreading or non-reading of evidence---Even otherwise, the powers in rent matters under constitutional jurisdiction of the Court are limited and confined only to ascertain whether the Courts below have flouted the statute or failed to follow the law relating thereto---Constitutional petition was dismissed, in circumstances.

Mst. Mahmooda Begum and another v. Taj Din 1992 SCMR 809 and Muhammad Iqbal v. Mst. Zahidan and 2 others 2013 CLC 1780 rel.

Sardar Sher Afzal Khan for Petitioner.

Murtaza Hussain for Respondent No. 1.

Respondent No. 2 through his legal heris

Date of hearing: 19th September, 2024.

Order

Shamsuddin Abbasi, J.---The Petitioner has invoked the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1979, impugning the order dated 31.01.2022, penned down by the learned Additional District Judge-XII (Model Civil Appellate Court), Karachi (South) dismissing First Rent Appeal No.208 of 2021, filed by the petitioner against the order passed by the learned Senior Civil Judge /Rent Controller-II, Karachi (South) on 14.10.2021 dismissing his application under Section 12(2) read with Order I, Rule 10(2), C.P.C. filed in Rent Case No.1031 of 2016.

1. Respondent No.1 Syeda Tatheer Fatima filed ejectment application vide Rent Case No.1031 of 2016 against Respondent No.2 Mazhar Ali seeking his eviction from demised premises viz Flat No.A-23, 6th floor, Super Place, Civil Lines Quarters, Dr. Ziauddin Ahmed Road, Karachi, on the ground of personal bona fide need. The learned Rent Controller allowed the eviction application by way an ex parte order dated 19.04.2017. The petitioner filed an application under Section 12(2) read with Order I, Rule 10(2), C.P.C., seeking recall of the ex parte ejectment order dated 19.04.2017 on the ground that the same was obtained by way of fraud, misrepresentation and concealment of true facts. The learned Rent Controller by an order dated 14.10.2021 dismissed the application. Impugning the order of the learned Rent Controller, the petitioner filed First Rent Appeal No.208 of 2024, which was dismissed vide order dated 31.01.2022, passed by the learned Additional District Judge-XII (MCAC), Karachi (South) and feeling aggrieved by the orders of the two Courts below, the petitioner has filed this petition.

2. It is contended on behalf of the petitioner that the respondent No.1 has obtained ex parte ejectment order dated 19.04.2017 by way of fraud, misrepresentation and concealment of true facts; that the petitioner filed Suit No.30 of 2014 for specific performance and permanent injunction, which was dismissed by learned Senior Civil Judge-II, Karachi (South) and appeal preferred against the order of the learned trial Court was also dismissed by learned Appellate Court and against the orders of the two Courts below the petitioner has filed Civil Revision, which is pending adjudication before this Court; that it is a clear cut case of fraud but the two Courts below dismissed the application under Section 12(2) read with Order I, Rule 10(2), C.P.C. without appreciating the material placed on record and application of judicial mind; that the respondent No.1 has admitted that respondent No.2 is her tenant since 2008 when she was neither attorney nor holder of title documents of the demised premises; that possession of the demised premises was handed over to the petitioner at the time of signing of sale agreement and payment of Rs.3 million in cash and Rs.1 million through cheque to the respondent No.1; that the respondent No.1 became attorney in the year 2014 and rent proceedings against respondent No.2 as her tenant are not maintainable; that the respondent No.1 has managed forged documents just to deprive the petitioner from his legal right. The learned counsel for the petitioner has lastly submitted that impugned orders passed by the two Courts below are without appreciating the facts and circumstances of the case and application of judicial mind, hence the same are liable to be reversed and prayed that the petition may be allowed as prayed.

3. The learned counsel appearing on behalf of the respondent No.1 has submitted that the petitioner and respondent No.2 are real brothers and they have managed a false and fabricated sale agreement just to usurp the property of the respondent No.1; that respondent No.1 is owner of the property in question and her eviction application was allowed by the learned Rent Controller and such an order has been maintained by the learned Appellate Court; that the suit filed by the petitioner for specific performance and permanent injunction was dismissed by the learned trial Court and Appellate Court has maintained the order of the learned trial Court in appeal; that the petitioner and respondent No.2 have managed a false and fabricated sale agreement and based on such agreement the petitioner filed application under Section 12(2) read with Order I, Rule 10, C.P.C., which were rightly dismissed by the learned Courts below. The learned counsel lastly submitted that scope of writ jurisdiction in rent matters is limited and the petitioner has failed to make out a case for interference, hence prayed for dismissal of appeal.

4. The respondent No.2, Aga Muhammad Khan, who is also a practicing advocate, present in person has supported the case of the petitioner and adopted the same arguments as advance by the learned counsel for the petitioner.

5. Heard learned counsel for the petitioner, learned counsel for the respondent No.1 and respondent No.2 in person as well as perused the entire material available before me with their able assistance.

6. Record demonstrates that suit filed by the respondent No.1 seeking specific performance and permanent injunction was dismissed by the learned Senior Civil Judge-II, Karachi (South) vide order dated 18.03.2017 and Civil Appeal No.59 of 2017 preferred against the order of the learned trial Court was also dismissed by the learned Appellate Court. The record is suggestive of the fact that the petitioner filed suit for specific performance and permanent injunction in the year 2015 whereas the respondent No.1 filed ejectment application against respondent No.2, who is real brother of the petitioner in 2016, however, the petitioner did not bother to bring on record true facts as to tenancy between respondents 1 and 2 and he (petitioner) used to deposit the rent in bank on behalf of his brother (respondent No.2) through cheques as admitted by him in cross-examination. The case of the petitioner hinges merely on a sale agreement said to have been executed in his favour by the respondent No.1 for which he availed civil remedy by filing a suit for specific performance and permanent injunction, but failed to succeed either before the learned trial Court or before the learned Appellate Court, whereby the claim of the petitioner as to purchase of the demised premises from the respondent No.1 was declined. The record is suggestive of the fact that the learned Rent Controller has dismissed the application under Section 12(2) read with Order 1 Rule 10(2), C.P.C. after recording evidence and hearing the parties' respective counsel observing that the petitioner has failed to prove that ex parte ejectment order was obtained by the respondent No.1 by way of fraud, misrepresentation and concealment of true facts. The order of the learned Rent Controller has been maintained by the learned Appellate Court observing that the petitioner has already availed civil remedy as to his claim with regard to purchase of the demised premises and allowing the fate of the application under Section 12(2) read with Order I, Rule 10(2), C.P.C. and recording any finding as to the title /ownership of the demised premises is beyond the domain of the learned Rent Controller.

7. Findings of fact given by the learned Rent Controller are concurred by the learned Appellate Court. On query posed as to what perversity or illegality afflicted the orders of the two Courts below, the learned counsel for the petitioner failed to advance any cogent argument in that regard, therefore, at this juncture, under the Constitutional Jurisdiction, this Court avoid to give contrary findings until and unless the same are prove to be perverse, based on misreading or non-reading of evidence. Even otherwise, the powers in rent matters under Constitutional Jurisdiction of this Court are limited and confined only to ascertain whether the learned Courts below have flouted the statute or failed to follow the law relating thereto. Reliance in this behalf may well be made to the case of Mst. Mahmooda Begum and another v. Taj Din reported (1992 SCMR 809), wherein the Hon'ble Apex Court held as under:-

2025 M L D 797

[Sindh]

Before Irshad Ali Shah, J

Abdul Hameed Shah---Appellant

Versus

The State---Respondent

Criminal Appeal No. 298 of 2018, decided on 12th September, 2023.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Ocular account proved---Accused was charged that he with rest of the culprits, in furtherance of their common intention, not only caused fire shot injuries to the sons of complainant but also caused danda blow to complainant with intention to commit their murder; and one son of the complainant died because of his injuries---Complainant in his FIR stated that on 28.04.2015 his two sons and his nephews were having scuffle with each other, he intervened to separate them; in the meanwhile appellant and co-accused took out their pistols; appellant fired at son of complainant which hit him on his right thigh while co-accused fired at other son of complainant which hit him on first finger of his right hand; then the brother of appellant arrived, who caused danda blow to him on his head; and finally the complainant and his sons were taken to hospital---Complainant and his sons were discharged after treatment while other injured was shifted to another hospital who died on 01.05.2014---Evidence of the complainant was silent with regard to causing him danda blow by co-accused---Except such omission, complainant had supported the narration made by him in his FIR to a large extent---Whatever was stated by injured got support from evidence of witness---Complainant and both of his witnesses had stood by their version on all material points and they could not be disbelieved only for the reason that they were related inter-se and/or there was no independent witness to the incident---Complainant and his witnesses indeed had no reason to involve the appellant in the case falsely who too was their close relative---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Prosecution not examining material witness---Inconsequential---Accused was charged that he with rest of the culprits, in furtherance of their common intention, not only caused fire shot injuries to the sons of complainant but also caused danda blow to complainant with intention to commit their murder; and one son of the complainant died because of his injuries---Of course, during course of their examination, witnesses had admitted that one "SG" had also sustained fire shot injury---Said injured had not been examined by the prosecution---Non-examination of said injured was not enough to disbelieve the complainant and his witnesses---If said injured was not going to support the case of prosecution then it was for the appellant to have called him in his defence to take advantage of his evidence, if any, which he had failed to do---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Delay of three days in lodging the FIR---Not fatal to prosecution case---Accused was charged that he with rest of the culprits, in furtherance of their common intention, not only caused fire shot injuries to the sons of complainant but also caused danda blow to complainant with intention to commit their murder; and one son of the complainant died because of his injuries---Delay in lodgment of the FIR was well explained by the complainant by stating that the elders of the community prevented him from lodging the same to have a private faisla (arbitration) which they failed to have on account of death of the deceased, therefore, such delay in lodgment of the FIR could hardly be treated to be fatal to the case of prosecution---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Recovery of one empty and one live bullet from place of occurrence---Accused was charged that he with rest of the culprits, in furtherance of their common intention, not only caused fire shot injuries to the sons of complainant but also caused danda blow to complainant with intention to commit their murder; and one son of the complainant died because of his injuries---Record showed that the recovery of one empty and one live bullet from the place of incident was not enough to conclude that it was a sole fire which was made by the accused at the complainant party---Second empty might have gone missing from the place of incident, which was a mohalla---Appellant was taken into custody on account of refusal of pre-arrest bail to him, and by such act the recovery of crime weapon from him was defeated---No benefit of such non-recovery of crime weapon could be extended to the appellant in the circumstances---Appeal against conviction was dismissed, in circumstances.

Bashir Ahmed Leghari v. The State 2020 SCMR 595 rel.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Acquittal of co-accused on same set of evidence---Inconsequential---Accused was charged that he with rest of the culprits, in furtherance of their common intention, not only caused fire shot injuries to the sons of complainant but also caused danda blow to complainant with intention to commit their murder; and one son of the complainant died because of his injuries---Record showed that acquittal of co-accused was not enough to earn acquittal for the appellant for the reason that he was having a different role in commission of incident---Evidence brought on record by the prosecution was inspired confidence, thus it could not be disbelieved in favour of the appellant on the basis of its quantity---Appeal against conviction was dismissed, in circumstances.

Muhammad Raheel alias Shafique v. The State PLD 2015 SC 145 rel.

(f) Criminal trial---

----Testimony of witnesses---Scope---Quality of the evidence prevails and not its quantity.

Asfandiyar v. The State and others 2021 SCMR 2009 rel.

Muhammad Farooq for Appellant.

Muhammad Anwar Mahar, DDPP for the State.

Syed Lal Hussain Shah for the Complainant.

Date of hearing: 12th September, 2023.

Judgment

IRSHAD ALI SHAH, J.---It is the case of prosecution that the appellant with rest of the culprits, in furtherance of their common intention, not only caused fire shot injuries to Muhammad Ali and Waseem Gul but caused danda blow to complainant Gulawat Shah with intention to commit their murder; Muhammad Ali eventually died of such injuries, for that the present case was registered. The appellant and co-accused Rustam Ali denied the charge and prosecution to prove the same, examined in all 06 witnesses and then closed its side. The appellant and co-accused Rustam Ali in their statements recorded under Section 342 Cr.P.C denied the prosecution's allegation by pleading innocence by stating that they have been involved in this case falsely by the complainant party on account of old family dispute. They did not examine themselves on oath or anyone in their defence to prove their innocence. On conclusion of trial, co-accused Rustam Ali was acquitted while the appellant was convicted under section 302(b) P.P.C. and sentenced to undergo life imprisonment with benefit of section 382(b) Cr.P.C by learned IInd -Additional Sessions Judge, Karachi, Central vide judgment dated 05.04.2018, which he has impugned before this Court by preferring the instant Criminal Appeal.

1. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the complainant party in order to satisfy with him its dispute over property; the FIR has been lodged with delay of about 03 days; there is no recovery of any sort from the appellant; there is no independent witness to the incident; there is conflict between medical and ocular account of evidence with regard to age of the deceased and injury sustained by him; 342 Cr.P.C statement of the appellant has been recorded improperly and on the basis of same evidence co-accused Rustam Ali has been acquitted even by learned trial Court. By contending so, he sought for acquittal of the appellant of the charge by extending him benefit of doubt. In support of his contention, he relied upon cases of Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344) and Mst. Asia Bibi v. the State and others (PLD 2019 SC 64).

2. It is contended by learned DDPP for the State and learned counsel for the complainant that the appellant is neither innocent nor has been involved in this case falsely by the complainant party; his case is distinguishable to that of acquitted accused Rustam Ali; he has defeated recovery of crime weapon by going in absconsion and was taken into custody after refusal of pre arrest bail and there is no material conflict between medical and ocular account of evidence. By contending so, they sought for dismissal of the instant Criminal Appeal. In support of their contention, they relied upon cases of Amanullah and another v. the State and others (2023 SCMR 723) and Ellahi Bakhsh v. Rab Nawaz and another (2002 SCMR 1842).

3. Heard arguments and perused the record.

4. It is inter alia stated by the complainant in his FIR that on 28.04.2015 his sons Muhammad Ali and Waseem Gul and his nephews Abdul Hameed and Abid were having scuffle with each other, he intervened to separate them; in the meanwhile Abdul Hameed and Abid took out their pistols; Abdul Hameed fired at Muhammad Ali which hit him on his right thigh while Abid fired at Waseem Gul which hit him on first finger of his right hand; there came Rustam Ali his brother, who caused danda blow to him on his head; he and his sons were taken to Abbasi Shaheed Hospital; he and PW Waseem Gul were discharged after treatment while Muhammad Ali was shifted to Ziauddin Hospital Nazimabad who died on 01.05.2014. The evidence of the complainant is silent with regard to causing him danda blow by co-accused Rustam Ali. Excepting such omission, he has supported the narration made by him in his FIR to large extent. It was stated by PW Waseem Gul that on the date of incident he and Muhammad Ali had scuffle with the appellant and co-accused Abid on account of selling of narcotics in Mohalla on which they took out pistols, the appellant fired at Muhammad Ali which hit him on his right thigh while Abid fired at him which hit him on his first finger of right hand; there came Rustam Ali and he caused danda, blow to his father the complainant on his head and then all the accused fled away. They all were referred to Abbasi Shaheed Hospital, he and his father the complainant were discharged while Muhammad Ali was shifted to Ziauddin Hospital he died there on 01.05.2014. Whatever is stated by PW Waseem Gul takes support from evidence of PW Naseeb Gul. The complainant and both of his above named witnesses have stood by their version on all material points. They could not be disbelieved only for the reason that they are related inter-se and/or there is no independent witness to the incident. The independent persons are oftenly found reluctant to involve themselves in dispute of others in Court proceedings. The complainant and his witnesses indeed were having no reason to have involved the appellant in this case falsely who too was their close relative. Of course, during course of their examination they have admitted that one Sana Gul has also sustained fire shot injury. He has not been examined by the prosecution. His non-examination is not enough to disbelieve the complainant and his witnesses. If he was not going to support the case of prosecution then it was for the appellant to have called him in his defence to take advantage of his evidence, if any, which he has failed to do. As per Medical Officer, Dr. Muhammad Naeemuddin, deceased Muhammad Ali was found sustaining injury on his left knee joint, his age and parentage according to supplementary medico legal report was different. Such omission is not enough to make a conclusion that the death of the deceased was not unnatural, which otherwise is proved beyond doubt by the complainant and his witnesses to be unnatural and at the hands of the appellant. The delay in lodgment of the FIR is well explained by the complainant by stating that the elders of the community prevented him from lodging the same to have a private faisla which they failed to have on account of death of the deceased, therefore, such delay in lodgment of the FIR could hardly be treated to be fatal to the case of prosecution. The recovery of one empty and one live bullet from the place of incident is not enough to conclude that it was a sole fire which was made by the accused at the complainant party. The second empty might have gone missing from the place of incident which was mohalla. The appellant was taken into custody on account of refusal of pre-arrest bail to him, by such act the recovery of crime weapon from him was defeated. No benefit of such non-recovery of crime weapon could be extended to the appellant in the circumstances. Acquittal of co-accused Rustam Ali is not enough to earn acquittal for the appellant for the reason that he was having a different role in commission of incident. Evidence brought on record by the prosecution is transpiring confidence. It could not be disbelieved in favour of the appellant on the basis of its quantity. It is settled by now that it is the quality of the evidence prevails and not its quantity. The appellant in his statement recorded under Section 342 Cr.P.C has pleaded innocence but has not been able to examine himself on oath or anyone in his defence to prove such innocence, therefore, plea of innocence on his part deserved to be ignored as an afterthought. No prejudice has been caused to the appellant while recording his statement under Section 342 Cr.P.C which contains material circumstances. In these circumstances, it would be safe to conclude that no illegality or irregularity has been committed by learned trial Court by convicting the appellant for the offence with which he was charged.

5. In case of Muhammad Raheel alias Shafique v. State (PLD 2015 SC 145), it has been held by Apex Court that:

"5. Thus, their acquittal may not by itself be sufficient to cast a cloud of doubt upon the veracity of the prosecution's case against the appellant who was attributed the fatal injuries to both the deceased. Apart from that the principle of falsus in unofalsus in omnibus is not applicable in this country on account of various judgments rendered by this Court in the past and for this reason too acquittal of the five co-accused of the appellant has not been found by us to be having any bearing upon the case against the appellant."

1. In case of Asfandiyar v. The State and others (2021 SCMR 2009), Apex Court has held that:"

Law does not require a particular number of witnesses to prove a criminal charge and statement of a solitary witness with a ring of truth is more than sufficient to drive home the charge; corroboration is a rule of prudence and not law and cannot be invariably insisted in every case. Belatedly taken plea of substitution by the petitioner that the deceased was done to death by one Ashfaq is nothing but a far cry; it is inconceivable that a father would substitute the assassin of his son with an innocent without rhyme or reason. Longstanding absconsion with arrest as late as on 2.5.2012 is yet another predicament bracing the petitioner. On an overall analysis of the evidence, we have not been able to find space to admit any hypothesis other than petitioner's guilt; view concurrently taken by the Courts below, being unexceptionable, calls for no interference. Petition fails. Leave declined."

2025 M L D 840

[Sindh (Larkana Bench)]

Before Omar Sial and Khalid Hussain Shahani, JJ

Bahawal Shaikh---Appellant

Versus

The State---Respondent

Criminal Appeal No. D-19 of 2024, decided on 20th March, 2025.

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

----S.9---Possession and transportation of narcotics---Appreciation of evidence---Safe custody and safe transmission of the recovered substance to laboratory not proved---Prosecution case was that 10-kilograms charas lying in a bag was recovered from the possession of the accused---Complainant's testimony reflected that the charas was in a white sack when seized---Chemical analysts' report did not mention color of the bag in which the charas was sent---Contrary to the witness testimony, the charas de-sealed in Court was in a red sack---Memo. of recovery or the witness testimonies did not state whether anything was written or printed on the sack in which the charas was kept or on the charas inside---Complainant allegedly had a lapse of memory at trial and claimed that he could not remember whether anything was written---Memo. of recovery did not record any writing---However, complainant admitted that the charas de-sealed and shown to him in Court, apart from being in a different color bag, also had "555" (on some) and "Black Gold" (on others) written on it---Said numbers were not mentioned in the FIR or the memo. of recovery---Chemical analyst's report showed that there were twenty patties of charas in the bag sent to him and that all the patties had "555" and a gold stamp printed on them---Complainant further acknowledged that plastic wrapping was also available in the sealed bag that was de-sealed in Court, the presence of which was also not mentioned in the documentation---An accurate description of the commodity seized must be written in the recovery memo.---Color and description of the narcotics seized, as well as the description of the packing and any visible marks, signs, photos, logos, and numbers on the seized articles, should be written in the recovery memo.---Description should tally with the description noted by the chemical laboratory when the package is sent to it and then with the case property produced at trial---Safe custody and transmission would be compromised if the seizure descriptions did not match---Prosecution failed to prove safe and secure custody and transmission, creating doubt---Prosecution failed to prove its case beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Ameer Zeb v. The State PLD 2012 SC 380; Muhammad Arif v. The State 2023 YLR 2369; Khan Afzal and another v. The State 2022 PCr.LJ 52; Arzi Gul v. The State 2020 PCr.LJ 178 and Sherazad v. The State 2012 YLR 1042 rel.

Abdul Baki Jan Kakar for Appellant.

Ali Anwar Kandhro, Additional Prosecutor General, Sindh for the State.

Date of hearing: 4th March, 2025.

Judgment

Omar Sial, J.---Bahawal Sheikh was arrested on 24.09.2023 by A.S.I. Nazir Hussain Chandio from a graveyard when ten kilograms of charas were lying in a bag in front of him. FIR No. 195 of 2023, under section 9(d) of the Control of Narcotic Substances Act, 1997, was registered at the Foujdari police station in Shikarpur.

1. The prosecution story is that a police party headed by S.I. Nazeer Hussain Chandio and consisting of P.C. Abdullah, P.C. Shafique Ahmed, and D.P.C. Ali Ahmed Brohi was on regular patrol when it received information that notorious drug peddler Bhoroo Shaikh is present in a graveyard with charas in his possession. The police party went to the cemetery and saw a bag lying on the ground. Two people were standing close to it. One of the persons, Bhoroo Shaikh, ran away whereas the other, Bhawal Shaikh, the appellant, was arrested.

2. Shaikh pleaded not guilty and claimed to be tried. At trial, the prosecution examined S.I. Nazeer Hussain Chandio (the complainant); P.C. Abdullah Lohar Baloch, who witnessed the arrest and recovery, WPC Abdul Wahid, the maalkhana incharge and S.I. Ali Hussain Shah (the Investigating Officer). In his section 342, Cr.P.C. statement, Shaikh denied any wrongdoing and said that he was arrested from a graveyard on 24.09.2020, and that the charas belonged to Bhoroo Shaikh, whom the police had let go. Shaikh was convicted and sentenced to twenty years and a fine of Rs. 800,000.

3. We have heard the learned counsel and re-appraised the evidence. For brevity, their specific arguments are not being reproduced but are reflected in our observations and findings below.

4. We find the story presented by the prosecution to be somewhat unreal. A police party consisting of three armed and able-bodied men receives information from the ever-present "spy" that a notorious drug peddler, Bhoroo Shaikh, is present at an identified place and that he has narcotics with him. The police reach that place, which is a graveyard. In that graveyard, which evidence shows was a 25 acre of land, the police party reaches a spot where they see a white sack lying on the ground in front of two men, the allegedly notorious Bhoroo Shaikh, and the appellant, and while Bhoroo Shaikh manages to make his escape good, rather effortlessly, the appellant Bahawal Shaikh, keeps standing his ground and the police comes to him and arrests him. To us, the story is illogical and impractical, if not outright absurd. The recovery memo. refers to the entire 25-acre graveyard as the place of the occurrence. At trial, the prosecution witnesses struggled to explain precisely where the recovery occurred. The prosecution has no cogent argument to give whether it's even logical that a sane person, albeit a criminal, would stand and watch the police coming straight to him but still keep standing with 10 kgs of charas lying in front of him,all while the kingpin Bhoroo Shaikh manages to effortlessly escape from right under the noses of the raiding party that had come to get him specifically. Bhoroo was never arrested in this case, though the witness admitted that he lived in the same neighborhood. There could be some truth in what the appellant said in his section 342 Cr.P.C. statement that a Shaikh got a Shaikh and that Bhoroo is the actual offender, but the police have let him off due to some reasons.

5. Our astonishment at the prosecution story apart, we note an important legal aspect in this case. That is one of safe custody and transmission of the narcotics. This is not a run-of-the-mill case in which an important witness is not examined, and hence, the chain is broken. In this case, the prime question is how much relevance should be given to the packing and description of the charas.

6. S.I. Nazeer Hussain's testimony reflects that the charas was in a white sack when seized. The chemical analysts' report mentions no color of the bag in which the charas was sent in. Contrary to the witness testimony, the charas de-sealed in court was in a red sack. In his testimony, Nazeer Hussain acknowledged that "it is correct to suggest that the color of the bachka produced today is red with lining. It is correct to suggest that the color of the bachka is not white."

7. The memo. of recovery or the witness testimonies did not state whether anything was written or printed on the sack in which the charas was kept or on the charas inside. S.I. Nazeer Hussain Chandio had a lapse of memory at trial and claimed that he could not remember whether anything was written; however, the memo. of recovery does not record any writing. However, he admitted that the charas de-sealed and shown to him in court, apart from being in a different color bag, also had "555" (on some) and "Black Gold" (on others) written on it. These numbers are not mentioned in the FIR or the memo. of recovery. The chemical analysts' report shows that there were twenty patties of charas in the bag sent to it and that all the patties had "555" and a gold stamp printed on them. S.I. Nazeer Hussain Chandio. Chandio further acknowledged that plastic wrapping was also available in the sealed bag that was de-sealed in court, the presence of which was also not mentioned in the documentation. He also admitted that though he had recovered ten packets of charas, and the same was recorded in the FIR and memo, the bag opened at trial had twelve pieces of varying sizes of charas in it. This was in contradiction to what P.C. Abdullah Lohar Baloch said. He believed that the recovered chars were all in equally sized pieces. P.C. Abdullah Lohar Baloch also testified that he did not remember anything written on the bag or the charas packets. He justified it by saying that it was dark. We are unconvinced with such an explanation because if there was enough light for the policemen to draft memos. on the spot, there would surely be enough light to examine the charas. The seizing officer and the witness also remained at odds on whether they attempted to apprehend the fleeing Bhoroo Shaikh. According to the seizing officer, no attempt or effort was made by any member of the police party, whereas the witness to the recovery said that Bhoroo had been chased on foot by P.C. Shafique Ahmed, but he still managed to flee. Further doubt was created when P.C. Shafique Ahmed noted at trial that "only Allah knew who the actual owner of the charas was."

8. The central legal issue in the admissibility of narcotics evidence in court is the collecting officer's ability to recognize the evidence as the same evidence obtained from the accused or the crime scene. This is possible only if the evidence is collected correctly, marked, handled, and stored, and each step is comprehensively documented. This legal obligation is known as establishing the chain of custody. The chain of custody serves as a documented record detailing who possessed the evidence, from its collection to its destruction. This documentation safeguards the integrity of the evidence. Individuals who have handled the evidence form the "links" in the chain. Each transfer of the evidence introduces a new link. If any link in this chain is not recorded correctly, it compromises the chain, potentially rendering the evidence inadmissible in court.

9. The narcotics law, as it has evolved in the country, carries stringent punishments and leans heavily in favor of the State. We find it quite remarkable that the prosecution story is identical in nearly a hundred percent of the cases that come to this court (of smaller recoveries). A man is seen carrying a black shopping bag (which used to be inevitably blue in the 2014 to 2016 years) in often a crowded area, and miraculously, a police part on routine patrol sees him and finds him suspicious. Inevitably, narcotics are recovered from this person. Section 25 of the CNS Act, 1997 expressly excludes the applicability of section 103, Cr.P.C., and it has been held that police officers are good witnesses. In most cases, the complainant is the same as the investigator, and one wonders why an investigator would decide against himself. In such a situation, there is very little an innocent person can do if subjected to police excesses. The police often abuse the law to settle their scores. In such a situation, it becomes critical that for the very least, safe custody and transmission of the narcotics from the point of seizure to its deposit in the chemical laboratory is meticulously established and proved at trial. In Ameer Zeb v. The State (PLD 2012 SC 380), it was noted, "We may also observe that in such cases it is the accused person who is at the receiving end of long and stringent punishments and, thus, safeguards from his point of view ought not to be allowed to be sacrificed at the altar of mere comfort or convenience of the prosecution."

10. The reports that the chemical laboratories, particularly the Rohri laboratory, are issuing are stereotypical and, at times, dubious. A new trend started by the laboratory, which we find suspicious, is that the gross weight of the seized narcotics, according to the laboratory, is always twenty-five or forty grams above the one-kilogram or five-kilogram benchmarks. This happens when the memo. of arrest and recovery shows an exact amount of one or five kilograms having been seized. The benchmarks are essential as, in our country, the quantum of sentences is connected not to a sample's toxicity and narcotic content but to its weight. One wonders how when the seizing officer has weighed the narcotics, claims his measurement was accurate, and weighs the seizure with the packing of the narcotics, yet the gross weight he notes in the recovery memo. is always twenty-five to forty grams less than what the laboratory weighs it as. There are no descriptions or photographs of the seals affixed on the seizure packets when received by the laboratory, nor are there descriptions or pictures of the seals that the laboratory affixes on the packets after analysis. All that the report says is that the seals were "satisfactory." This does not mean anything. We have yet to come across a report which shows that the seals were in an "unsatisfactory" condition. Often, one wonders if the tests that the laboratory claims to have carried out are indeed conducted or if a favorable report stereotypically and mechanically is printed out. We fail to understand why law enforcement agencies do not take photographs of the seizure, sampling, and sealing process. The technology is available on nearly every phone carried by law enforcement. Indeed, the Supreme Court in Criminal Petition No. 1192 of 2023 also raised a similar concern -"If the police and ANF were to use their mobile phone cameras to record and/or take photographs of the search, seizure 3 and arrest, it would be useful evidence to establish the presence of the accused at the crime scene, the possession by the accused of the narcotic substances, the search and its seizure. Non-compliance of law enforcers to take photographs unnecessarily raises doubts that the police may have an ulterior motive to do so. The Punjab Forensic Science Agency (the leading forensic laboratory in the country) recommends that the packet of the narcotic seizure should be sealed with a molten wax seal to document specimen integrity. A reference seal sample must also be attached along with the sealed packet. There is no reason for the chemical laboratories of this province not to do the same.

11. An accurate description of the commodity seized must be written in the recovery memo. The color and description of the narcotics seized, as well as the description of the packing and any visible marks, signs, photos, logos, and numbers on the seized articles, should be written in the recovery memo. This description should tally with the description noted by the chemical laboratory when the package is sent to it and then with the case property produced at trial. We are guided by the wisdom of the Supreme Court in the Ameer Zeb case (supra) when it noted, "We, reverently and respectfully, tend to agree with the latter view and would like to add that the rule of thumb for safe administration of criminal justice is: the harsher the sentence the stricter the standard of proof." Safe custody and transmission will be compromised if the seizure descriptions do not match.

12. It would not be out of place to record that a Division Bench of this Court in Mohammad Arif v. The State (2023 YLR 2369) has observed: "According to the prosecution, he had a black bag in his hand, however the same bag finds no further description neither in the memo. of arrest and recovery, nor in the FIR. Further description of the same however came forth in the deposition of PW-1 SIP Arz Muhammad who, while being cross-examined, admitted that the bag was in fact of navy blue colour and had "Old is Gold" inscribed on it. As per the prosecution case, the bag contained 10 packets of opium which were weighed and found to be 9.8 kilograms while 4 packets of charas were also found within the bag which were weighed and found to be 5 kilograms. These packets, so recovered, do not find any description as to the nature or content of the outer coverage of the same; whether they were wrapped in plastic, paper or cloth. These omissions strike at the core of the prosecution case as the same would have otherwise helped establish that the case property available in Court is in fact the same."

2025 M L D 857

[Sindh (Sukkur Bench)]

Before Adnan-ul-Karim Memon, J

Mushtaque Ali Khoso---Applicant

Versus

The State and others---Respondents

Crl. Misc. Application No. S-15 of 2023, decided on 13th May, 2024.

Criminal Procedure Code (V of 1898)---

----Ss.22-A, 22-B & 154---Information in cognizable cases---Power of Ex-officio Justice of Peace---Scope---Duty of S.H.O. to register FIR upon statement of complainant regardless of its authenticity and correctness---Scope---Misconduct by the police officials---Effect---In case of a cognizable offence, the complainant has to approach the Officer Incharge of such police station under whose jurisdiction such offence is said to have been committed---In such an event, the Officer Incharge of the concerned police station has no authority to refuse to record the complainant's statement and/or to refuse to register an FIR. on his complaint---If the said concerned Officer Incharge fails to or refuses to record the complainant's statement and/or to register his FIR., then the complainant has to approach the Justice of Peace under S.22-A, Cr.P.C.---On such complaint/application, if the Justice of Peace forms his independent opinion from the facts narrated to him by the complainant that a cognizable offense has been made out, the Justice of Peace is bound to issue a direction to the concerned Station House Officer for recording of FIR---Even if there is no direction of the Court, the S.H.O. has no authority to refuse to record the statement of the complainant in the relevant register irrespective of its authenticity/correctness or falsity of such statement---Primarily it is the prime duty of the superior officers in the police hierarchy to ensure discipline within the police force, which is a public service and also to keep a strict check on the conduct of such police officers---A constant watchful eye on the police officer is the need of the day and if the Competent Authority concludes that the police officer indulged in acts of misconduct that prove incorrigibility and render complete unfitness of such police personnel in the service, then the competent authority should award the penalty of dismissal from service---If a police official with a patchy record is allowed to continue in service, it would not only damage the image of the police force but will also encourage social evils in the society, which the police force is required to eliminate---Criminal Miscellaneous Application was disposed of with a direction to D.I.G. Police concerned to hear the applicant and the police officials and pass necessary directions in case of commission of a cognizable offence by the police officials.

Muhammad Ismail Lashari and others v. Government of Sindh and others 2016 SCMR 2098 rel.

Applicant in person.

Proposed accused Inspector Jamil Ahmed Soomro and Khalid in person.

Gulzar Ahmed Malano, Assistant, P.G for the State along with DSP Nazir Ahmed Soomro, SDPO Pir JO Goth.

Date of hearing: 13th May, 2024.

order

Adnan-ul-Karim Memon, J.---This Crl. Misc. Application has been filed by the applicant Mushtaque Ali Khoso against, Station House Officer Police Station Ahmedpur, and two proposed accused, including police officer Jameel and a private person. The applicant has prayed that respondent No.1 / Station House Officer Police Station of Ahmedpur be directed to register his FIR against the proposed accused and that the proposed accused be directed to return to the applicant the articles robed by them from him. The applicant is also aggrieved by and dissatisfied with the order dated 23-12-2022 passed by learned IIIrd Additional Sessions Judge/Ex-Officio Justice of Peace Khairpur passed in Crl. Misc. Application No. 5094/2022, whereby the application under section 22-A and B, Cr. P.C. filed by him for registration of the FIR was dismissed.

1. The applicant who is present in person has narrated his ordeal the Police Inspector Jameel along with his accomplices robbed him of cash within the jurisdiction of PS Ahmedpur, but SHO refused to register his FIR just to support his colleague Zaffar and Muhammad Jamil, hence he filed such an application before the Ex-Officio Justice of Peace, Khairpur for registration of the FIR, but the same was also dismissed, hence he preferred the instant Crl. Misc. Application inter-alia on the ground that cognizable offenses have been committed by the proposed accused as such directions for FIR be given to the SHO of the concerned police station; that the registration of FIR is a basic right of citizen and victim, which unfortunately has been made like an unfulfilled dream for the poor citizens of the province of Sindh and due to the political influence, the registration of the FIR is not less than a miracle for common people. He lastly prayed for allowing the Criminal Miscellaneous Application with direction to the concerned SHO to record his statement under Section 154, Cr.P.C. He submits that the police officials re-indulged in many criminal cases including Inspector Jameel Khoso who has already been undergoing disciplinary proceedings by the then SSP Khairpur and recovered the detainee from his custody; the applicant further submitted that the police officials are robbing the people under garb of the police uniform and weapon and their activities are rampant in the society at large, as such the Chief Justice of this Court has already taken cognizance of the matters and directed that the police officials who are indulged in criminal activities be brought to book forthwith.

2. The proposed accused 3 to 5 have filed detailed objections to oppose this Crl. Misc. Application on the premise that there was/is dispute over the property and both the private respondents are nephews of the applicant and civil litigation is pending before the Court of law; that no any adverse remarks had been passed by the then SSP Khairpur against Inspector Jameel as portrayed by the applicant. SDPO Pir Jo Goth has filed statement with CRO report of respondent No.3 Zaffar and respondent No.4 Khalid and opined that no criminal record was found against them.

3. The aforesaid stance has been refuted by the applicant.

4. I have given due consideration to the submission made by the parties and have carefully gone through the contents of the instant Criminal Miscellaneous Application as well as the application addressed to the SHO concerned and learned IIIrd Additional Sessions Judge/Ex-Officio Justice of Peace Khairpur in Criminal Miscellaneous Application No. 5094/2022.

5. The law on this point is now well settled that in case of a cognizable offence, the complainant has to approach the Officer Incharge of such police station under whose jurisdiction such offence is said to have been committed. In such an event, the Officer Incharge of the concerned police station has no authority to refuse to record the complainant's statement and/or to refuse to register an FIR on his complaint. If the said concerned Officer Incharge fails or refuses to record the complainant's statement and/or to register his FIR, then the complainant has to approach the Justice of Peace under Section 22-A, Cr.P.C. On such complaint/application, if the Justice of Peace forms his independent opinion from the facts narrated to him by the complainant that a cognizable offense has been made out, the Justice of Peace is bound to issue a direction to the concerned Station House Officer for the recording of FIR. He submitted that even if there is no direction of the Court, the S.H.O. has no authority to refuse to record the statement of the complainant in the relevant register irrespective of its authenticity/correctness or falsity of such statement.

6. So for as the role of the police officials in criminal activities is concerned, the Supreme Court of Pakistan in the case of Muhammad Ismail Lashari and others v. Government of Sindh and others (2016 SCMR 2098), wherein it was observed as under:-

"conduct prejudicial to good order or service discipline or conduct unbecoming of an officer and a gentleman or involvement or participation for gain either directly or indirectly in industry, trade or speculative transactions or abuse or misuse of the official position to gain undue advantage or assumption of financial or other obligations to private institutions of persons such as may cause embarrassment in the performance of official duties or functions."

1. Similarly, "misconduct" based on which disciplinary action can be taken under the Sindh Police (Efficiency and Discipline) Rules, 1988 means:

"Misconduct" means conduct prejudicial to good order or discipline in the Police Force, or contrary to the government Servants (Conduct) Rules or unbecoming of a Police Officer and a gentleman, any commission or omission which violates any provision of any law or rules regulating the function and duty of a Police Officer or to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Government or any Government Officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service of a Police Officer."

1. Primarily it is the prime duty of the superior officers in the police hierarchy to ensure discipline within the police force, which is a public service, and also to keep a strict check on the conduct of such police officers. A constant watchful eye on the police officer is the need of the day and if the Competent Authority concludes that the police officer has indulged in acts of misconduct that prove incorrigibility and render complete unfitness of such police personnel in the service, then the Competent Authority should award the penalty of dismissal from service.

2025 M L D 872

[Sindh (Larkana Bench)]

Before Amjad Ali Sahito, J

Habibullah Chandio---Applicant

Versus

The State---Respondent

First Criminal Bail Application No. S-739 of 2024, decided on 7th January, 2025.

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

----Ss. 498, 174 & 176---Penal Code (XLV of 1860), Ss. 302(b) & 34---Qatl-i-amd, common intention---Interim-pre-arrest bail, recalling of---During police custody, complainant's son was allegedly tortured by the applicant (police official) along with co-accused/police officials, resulting in his police custodial death---Deceased's dead body was recovered from the hospital with multiple injuries---Instead of following the procedure in Ss. 174 and 176, Cr.P.C., applicant along with co-accused left the deceased's dead body at the hospital and fled away---Prosecution witnesses supported the complainant's version---No ill will or mala fide had been pointed out by the applicant for false implication---Grant of pre-arrest bail is an extraordinary remedy in criminal jurisdiction---It is a diversion from the usual course of law i.e., arrest in cognizable cases; a protection to the innocent being hounded on trumped up charges through abuse of process of law---Thus, an applicant seeking judicial protection is required to reasonably demonstrate that intended arrest is calculated to humiliate him with taints of mala fide---It is not a substitute for post arrest bail in every run of the mill criminal case as it seriously hampers the course of investigation---Sufficient material was available on record to connect the applicant with the commission of the offence---Interim pre-arrest bail granted to the applicant was recalled, in circumstances.

Sajid v. Samin ur Rehman (Deceased) through his father and others 2021 SCMR 138 and Sanaullah Khuharo and others v. The State 2020 P Cr.LJ Note 59 distinguish.

Ghulam Raza Soomro v. The State 2000 SCMR 1645 and Rana Abdul Khaliq v. The State and others 2019 SCMR 1129 rel.

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

----S. 498---Pre-arrest bail---Tentative assessment---Scope---Deeper appreciation of evidence is not permissible at bail stage and only tentative assessment is to be made.

Mehmood Akhtar v. Nazir Ahmed 1995 SCMR 310 rel.

Muhammad Ali Pirzada for Applicant.

Complainant in person.

Ali Anwar Kandhro, Additional Prosecutor General, Sindh for the State.

Date of hearing: 7th January, 2025.

Order

Amjad Ali Sahito, J.---Through instant criminal bail application, the applicant, seeks post arrest bail in Crime No.91/2024, registered at Police Station Waggan (PP Lalu Rounk), for offence under sections 302, 34, P.P.C. Before on this he filed such on application but the same was turned down by the Court of 1st. Additional Sessions Judge/MCTC, Kamber vide Order dated 02.12.2024; hence he filed instant criminal bail application.

1. The details and particulars of the FIR are already available in the bail application, same could be gathered from the copy of FIR attached with such application, hence, needs not to reproduce the same hereunder.

2. Per learned counsel the applicant/accused is innocent and has been falsely implicated in this case; that this is an unseen incident and there is no role against the applicant/accused. He has also relied upon a letter dated 07.10.2024 wherein the claim of the learned Counsel for the applicant claims that the applicant was present before the Consumer Protection Court at Kamber, however, when it was inquired whether there is any case diary, he replied negative and lastly prayed for grant of bail. In support of his contention he relied upon the case of Sajid v. Samin ur Rehman (Deceased) through his father and others (2021 SCMR 138) and Sanaullah Khuharo and others v. The State (2020 PCr.LJ Note 59).

3. On the other hand complainant present in court as well as learned Additional Prosecutor General, Sindh vehemently opposed the grant of bail and states that sufficient material is available on the record as he has participated in the commission of offence as such he is not entitled for the grant of bail.

4. Heard and perused.

5. The case of prosecution is that son of the complainant was booked in a theft case and he was arrested by SHO, Masroor Ali Shah, ASI Zafar Ali, and PC Habibullah/present applicant in crime No. 90/2024 by police of police station P.S. Wagan for an offence under section 381-A, 511, P.P.C. The complainant and other villagers went to the police post Lalu Rank and inquired whereabouts of his son but no one was ready to inform him about his son. After passing some time the complainant came to know that the dead body of his son Fateh Muhammad was lying at Taluka Hospital Warah. The complainant along with his witness went to Tulka Hospital, where they saw the dead body of deceased Fateh Muhammad and found injuries on the different parts of the dead body and also on the neck.

6. From the perusal of the record it appears that during his detention at the police station deceased Fateh Muhammad was miserably tortured by the SHO, Masroor Ali Shah, ASI Zafar Ali, and PC Habibullah and other Police officials at the police station. Resultantly he died at the police station; as such this is a case of police custodial death. Further procedure also provided in the law that, if any person has been killed by another person or in police custody the report shall be sumitted before the nearest Magistrate under Section 174, Cr.P.C Section 176, Cr.P.C also provides a mechanism for how to hold an inquiry by a Magistrate into the cause of death when any person dies while in the custody of the police. But in the instant case to destroy the evidence, the police party left the dead body of the deceased at the hospital and flew away. The prosecution witnesses supported the version of the complainant. No ill will or mala fide has been pointed out by the learned counsel for the applicant for false implication into the case. Reliance is placed in the case of Ghulam Raza Soomro v. The State (2000 SCMR 1645).

7. The concession of pre-arrest bail cannot be allowed to an accused person unless the Court feels satisfied with the seriousness of the accused person's assertion regarding his intended arrest being actuated by mala fide on the part of the complainant party or the local police but not a word about this crucial aspect of the matter is found as no mala fide is made on the part of the complainant to believe that the applicant/accused has been implicated in this case falsely. Further, in additional to the above, I would like to mention that the grant of pre-arrest bail is an extraordinary remedy in criminal jurisdiction; it is the diversion of the usual course of law, arrest in cognizable cases; a protection to the innocent being hounded on trump up charges through abuse of process of law, therefore, an applicant seeking judicial protection is required to reasonably demonstrate that intended arrest is calculated to humilitate him with taints of mala fide, it is not a substitute for post arrest bail in every run of the mill criminal case as it seriously hampers the course of investigation. In this regard, reliance is placed on the case of 'Rana Abdul Khlaiq v. The State and others' [2019 SCMR 1129].

2025 M L D 928

[Sindh]

Before Sana Akram Minhas, J

Faisal Athar Hussain---Petitioner

Versus

Mst. Amber Mughal and 4 others---Respondents

C.P. No. S-259 of 2023, decided on 31st October, 2024

Family Courts Act (XXXV of 1964)---

---- S.5, Sched.---Constitution of Pakistan, Art. 199--- Constitutional petition--- Maintenance allowance--- Concurrent findings of facts by two Courts below--- Petitioner / ex-husband of respondent and father of two minor children, was aggrieved of fixation of maintenance allowance and direction to pay past maintenance and that of Iddat period--- Validity--- Determination by two Courts below that petitioner was liable for paying maintenance of respondents and the amount set was appropriate per child--- This was a finding of fact within the exclusive jurisdiction of two Courts below--- Petitioner could have challenged such findings in High Court's limited Constitutional jurisdiction, had he demonstrated that such findings were unsupported by evidence or resulted from a misinterpretation of evidence--- High Court declined to interfere in concurrent findings of facts by two Courts below, which were thoroughly evaluated and assessed and the conclusions were well reasoned--- Constitutional petition was dismissed, in circumstances.

Ayesha Hashmat Kamal v. Additional District Judge 2024 CLC 141; Tariq Javed v. Rukhsana Bibi 2023 YLR 2233; Muhammad Asim v. Samro Begum PLD 2018 SC 819; Nazia Bibi v. Additional District Judge PLD 2018 Lah. 916; Farzana Rasool v. Muhammad Bashir 2011 SCMR 1361; Arif Fareed v. Bibi Sara 2023 SCMR 413 ; Farhat Jabeen v. Muhammad Safdar 2011 SCMR 1073; Unreported judgment of High Court of Sindh, Circuit Court Hyderabad in C.P. No. S-466/2021 dated 6.12.2021; Muhammad Asim v. Samro Begum PLD 2016 SC 819; Utility Stores Corporation v. Punjab Labour Appellate Tribunal PLD 1987 SC 447; Secretary to the Government of Punjab v. Ghulam Nabi PLD 2001 SC 415; Hyderabad Development Authority v. Province of Sindh 2023 PLC 49; Khuda Bukhsh v. Muhammad Sharif 1974 SCMR 279; Waqar Haider Butt v. Judge, Family Court 2009 SCMR 1243; Dadex Etemit Ltd v. Sindh Labour Appellate Tribunal 2020 PLC 200 ; United Bank Limited v. Jamil Ahmed 2024 SCMR 164; Muhammad Nawaz v. Member Judicial Board of Revenue 2014 SCMR 914; M. Hamad Hassan v. Isma Bakhari 2023 SCMR 1434; Begum Wazir Ahmad v. Niaz Begum PLD 1976 SC 214; Ali Muzaffar v. Muhammad Ali Abedi 2006 CLC 379 and Iffat v. Umar Farooque PLD 2022 Sindh 61; rel.

Naveed Ali for Petitioner.

Shahzeb Akhtar Khan for Respondent No. 1.

Ms. Deeba Ali Jafri, Additional Advocate General for the State.

Dates of hearing: 5th March and 7th September, 2024.

Order

Sana Akram MInhas, J.---The Petitioner has filed the present Petition to contest the concurrent findings against him of the two courts below. He is aggrieved by the judgment and decree dated 5.1.2022, and 8.1.2022, issued by the Trial Court, which ruled in favor of Respondent No.1 in Family Suit No.700/2018 (Amber Mughal and others v. Faisal Athar Hussain) ("Family Suit"). Furthermore, the Petitioner challenges the subsequent judgment and decree dated 23.11.2022, of the Additional District Judge-VII (MCAC) Karachi (South), which dismissed the Petitioner's Family Appeal No.45/2022 (Faisal Athar Hussain v. Amber Mughal and others) ("Family Appeal") and upheld the Trial Court's decision.

1. The Petitioner is the former husband of the Respondent No.1 and the father of the Respondents Nos.2 and 3 (both of whom were minors at the relevant time). The official Respondents Nos.4 and 5 are the Presiding Officers of the learned Courts who have decreed the Respondent No.1's Family Suit and dismissed the Petitioner's Family Appeal respectively.

2. The Petitioner and the Respondent were married on 25.6.2002 and divorced on 22.7.2015. On 25.4.2018, the Respondent No.1 instituted Family Suit seeking the recovery of dowry articles and maintenance. Both parties presented their evidence, and subsequently, the Trial Court issued a Judgment and decree, granting relief only in regard to maintenance. The Court's decision included the following:

i) Maintenance for Respondent No.1 during the "iddat" period of 3 months at a rate of Rs. 15,000/- per month;

ii) Past maintenance for Respondent No.1 amounting to Rs. 1,775,335/-;

iii) Maintenance for the minors (Respondents Nos.2 and 3) at a rate of Rs.30,000/- per month per child from the filing of the Family Suit to the present date, with future maintenance continuing at the same rate and an annual increment of 10% until they reach legal entitlement or marriage.

1. The core issue agitated by the learned Counsel for the Petitioner was that the past and future maintenance amount awarded to the Respondents Nos.1 to 3 is excessive and/or exceeds the Petitioner's financial capacity. He averred that both the Courts below failed to properly consider the evidence, resulting in arbitrary judgment(s) and decree(s), urging this Court to set aside them. Conversely, the learned Counsel for Respondent No.1 has argued for the affirmation of the impugned judgment(s) and decree(s), contending that they are strictly in accordance with the law and record and were rendered in the light of the Petitioner's concealment of resources and refusal to divulge any details of his assets, bank accounts etc. Both Counsel presented case law to back up their submissions.1

2. The rival submissions have been duly evaluated and the record considered.

3. Addressing the central issue, the Trial Court's impugned judgment noted that the Petitioner held multiple jobs and testified during cross-examination that he worked part-time from September 2017 to October 2019. Yet, in his written statement (dated 20.10.2018 in paragraph 17), he claimed to have been unemployed for the past 21 months. This, therefore, diminished the credibility of his unemployment claim. Before the Appellate Court, the Petitioner argued (as recorded in the Appellate impugned judgment), that he had been financially impacted and rendered jobless due to NAB Reference No.7/2010, making it impossible for him to meet the maintenance amount ordered by the Trial Court for his minor children.

4. It is important to highlight that before this Court, the Petitioner has not claimed unemployment or weak financial position in the memo. of Petition. Even otherwise, by simply alleging unemployment, the father cannot absolve himself of his responsibility in maintaining his children, nor does it relieve him of his duty to support them2.

5. When a father obstructs a court's ability to accurately determine or to reach a just evaluation as to his earning or payment capacity, his assets, savings or bank accounts etc-through wilful misdeclaration or non-disclosure or by concealing his source of income the court is entitled and justified to draw an adverse inference.3

6. Considering that the Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan, 1973, it is important to recall some of the established legal parameters that have evolved over time for this jurisdiction. These fundamental guidelines include:

i) If a lower forum makes an error of law in deciding a matter, it creates a jurisdictional issue, as the forum is only authorized to decide matters correctly. Such a decision can be nullified under constitutional jurisdiction for being in excess of the law; since Article 4 of the Constitution guarantees an individual the right to be dealt with in accordance with the law and when the law is incorrectly or improperly applied, it becomes appropriate for the High Court to Intervene and exercise its constitutional jurisdiction.4

ii) Where the forums available within the legal hierarchy have resolved all controversial issues based on the record and in accordance with the law, the High Court's scope of interference is limited, as it cannot delve into disputed questions of fact when exercising its constitutional jurisdiction.5

iii) The High Court in its constitutional jurisdiction would not interfere with findings of fact recorded by competent courts, tribunals, or authorities, unless such findings result from, inter alia, a misreading or non-reading of evidence, are based on no evidence or there is a clear error of law that warrants correction.6

iv) Concurrent findings of fact by fora below cannot be overturned unless they suffer from jurisdictional defects, involve a failure to properly read or interpret the evidence on record, are perverse or physically impossible.7

v) A finding does not become sacrosanct merely because it is concurrent; it attains that status if it is based on a proper appraisal of the evidence. If the concurrent findings recorded by the lower forums violate the law, suffer from jurisdictional defects, or are based on errors evident from the record, they cannot be regarded as so sacrosanct or inviolable that they cannot be reversed or corrected by the High Court in its constitutional jurisdiction8.

vi) Disputed questions of fact cannot be entered into or re-agitated under constitutional jurisdiction. Article 199 of the Constitution cannot serve as a substitute for a revision or an appeal, or be used to convert constitutional jurisdiction into appellate jurisdiction9.

vii) Simply because an alternative conclusion might be drawn from a reappraisal of facts or evidence, the High Court cannot interfere in its constitutional jurisdiction10.

viii) The High Court will be slow in exercising constitutional jurisdiction when a statute provides an appeal and the remedy has either been availed or declined, unless it is shown that the action or order is clearly without jurisdiction and violates principles of justice11.

2025 M L D 938

[Sindh]

Before Muhammad Saleem Jessar, J

Wahid Khan and another---Applicants

Versus

The State---Respondent

Criminal Bail Application No. 1128 of 2024, decided on 12th August, 2024.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.324 & 34, 337-F(vi)---Attempt to commit qatl-i-amd, common intention, munaqqilah---Pre-arrest bail, grant of---Further inquiry---Applicant No.1 allegedly caused firearm injury to the injured, resulting in a through-and-through wound on the left leg---Existence of matrimonial dispute between the parties was admitted---Injury on non-vital part had not been declared by the Medical Legal Officer (MLO) to be fatal for the life of injured---There was no repetition of fire shot---If contents of the FIR were presumed to be true, even then presumption would be that he had no intention to commit qatl-i-amd of the injured witness---Presence of co-accused was alleged without any role or overt act---Applicability of S.324, P.P.C was yet to be established by the prosecution after recording of evidence---Injury sustained by the injured party was punishable under S.337-F(vi), P.P.C, with a maximum punishment of seven years, thus, the case of the applicant did not fall within the prohibitory clause of S.497, Cr.P.C.---Basic ingredients for granting pre-arrest bail were present in the case due to the non-fatal nature of the injury, lack of intention to commit murder, and potential mala fide on the part of the prosecution---Case against the applicants was found to be one of further inquiry----Pre-arrest bail application was allowed, in circumstances.

Muhammad Ramzan v. Rahib and others PLD 2010 SC 585 ref.

Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427 and Khaleel Ahmed Soomro and others v. The State PLD 2017 SC 730 rel.

Sardar Sheeraz Anjum for Applicants.

Ms. Rubina Qadir, Deputy Prosecutor General, Sindh for the State.

Abdul Basir for the Complainant.

Date of hearing: 12th August, 2024.

Order

Muhammad Saleem Jessar, J.---Through this application, applicants Wahid Khan and Rab Nawaz Khan seek their admission on pre-arrest bail in Crime No. 234/2024 of Police Station Zaman Town, Karachi, under Sections 324 and 34, P.P.C read with Sections 337-F(vi) (iii) and 201, P.P.C. The applicant preferred his anticipatory bail before the Court of Sessions, which was assigned to 12th Addl. Sessions Judge, Karachi (East), who after hearing the parties, has turned down his request through order dated 21.05.2024. The case has been challaned which is now pending for preliminary proceedings before the Judicial Magistrate having jurisdiction in terms of dicta laid down by Hon'ble Supreme Court of Pakistan in case of Muhammad Ramzan v. Rahib and others (PLD 2010 SC 585) Hence, instant bail application has been maintained.

1. The crux of the prosecution case are that applicant Wahid Khan allegedly caused pistol shot injury to injured PW Muhammad Saleem which landed on his left leg: whereas, applicant Rab Nawaz has been shown no role or avert act except mere his presence. The injury allegedly sustained by PW Muhammad Saleem has been opined by the Medico Legal Officer to be punishable under Section 337-F(vi), P.P.C; hence, this FIR.

2. Learned counsel for the applicants submits that applicant No.2 Rab Nawaz Khan had married with daughter of injured PW Muhammad Saleem, who (wife of applicant No.2) had joined Government Job, therefore, she was restrained by her husband/applicant No.2 not to perform her job; hence, she left her house without consent or permission of her husband; hence, applicant No.2 had contracted second marriage, which annoyed the complainant party, therefore, they have managed this case though no such offence, as alleged, has taken place. As far as, role attributed to applicant Wahid Khan is concerned, learned counsel submits that role attributed to him is of causing fire arm injury which is on non-vital part of the body; besides, said offence carries maximum punishment up to seven years, therefore, case against him requires further inquiry.

3. Learned Deputy P.G, Sindh appearing for the State opposes the bail application on the ground that both accused are nominated in the FIR; besides, role of causing fire arm injury is assigned to applicant No.1 Wahid Khan to injured PW Muhammad Saleem and applicant No.2 Rab Nawaz Khan being facilitator, therefore, both are not entitled for the bail.

4. Learned counsel for the complainant while adopting arguments advanced by learned Deputy P.G, Sindh, also opposes the bail application and submits that there are 16 witnesses of the prosecution case and all those have supported the version of the prosecution in their respective 161 Cr.P.C statements.

5. Heard arguments and perused record. No doubt, applicants are nominated in the promptly registered FIR; however, role attributed to applicant Wahid Khan is that he allegedly caused fire arm shot injury to injured PW Muhammad Saleem, which landed on his left leg and became through and through. It being on his non-vital part of the body, has not been declared by the MLO to be fatal for the life of injured. No allegation for repetation of fire arm has been assigned or levelled, therefore, if contents of the FIR may be presumed to be true, even then presumption would be termed that he had no intention to commit Qatl-i-Amd of the injured PW Muhammad Saleem, as alleged. Therefore, application of section 324, P.P.C is yet to be established by the prosecution after recording its evidence. As far as injury sustained by the injured is concerned, same has been declared by the MLO to be punishable under Section 337-F(vi) P.P.C which carries maximum punishment up to seven years; hence, does not exceed limits of prohibitory clause of section 497, Cr.P.C.

6. In view of matrimonial dispute between the parties, mala fide on the part of prosecution cannot be denied; hence, basic ingredients for grant of pre-arrest bail, as enshrined by the Hon'ble Supreme Court of Pakistan in case of Rana Muhammad Arshad v. Muhammad Rafique and another (PLD 2009 SC 427), are fully attracted in this case.

2025 M L D 953

[Sindh]

Before Salahuddin Panhwar and Jan Ali Junejo, JJ

Obaid Muhammad Khan Niazi---Appellant

Versus

Muhammad Iqbal 4 and others---Respondents

Criminal Acquittal Appeal No. 606 of 2019, decided on 9th February, 2025.

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

----S. 417---Appeal against acquittal---Scope---Double presumption of innocence---Courts are generally reluctant to overturn an acquittal unless it is demonstrated to be perverse, rendered in gross violation of the law, or vitiated by serious errors arising from a grave misreading or complete omission of evidence.

Sardaran Bibi v. The State and others 2024 SCMR 1116; The State and others v. Abdul Khaliq and others PLD 2011 SC 554 and Maqsood Alam and another v. The State 2024 SCMR 156 rel.

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

----Ss. 302(b), 337-J, 506-B & 34---Qatl-i-amd, causing hurt by means of a poison, criminal intimidation, common intention---Appreciation of evidence---Medical evidence---No definite conclusion whether death was homicidal or suicidel----Accused were charged for committing murder of daughter of the complainant by administering poison---Woman Medico-Legal Officer, who conducted post-mortem examination of the deceased, concluded that the cause of death was due to the ingestion of insecticide (from the phosphate group), which resulted in cardio-respiratory arrest---Said witness testified that there were no signs of violence on the deceased's body---Prosecution failed to secure any food or material evidence to establish that the deceased was poisoned through ingestion---Said medical witness could not definitively determine whether the cause of death was homicidal or suicidal, thereby creating serious doubt---As a result, the benefit of doubt must be given to the accused---Appeal against acquittal was dismissed, in circumstances.

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

----Ss. 302(b), 337-J, 506-B & 34---Qatl-i-amd, causing hurt by means of a poison, criminal intimidation, common intention---Appreciation of evidence---Delay of more than three days in lodging the FIR---Consequential---Accused were charged for committing murder of the daughter of the complainant by administering poison---Incident occurred on 18.10.2016 at approximately 2:00 PM, while the FIR was lodged on 21-10-2016 at around 6:30 PM, resulting in an unexplained delay of more than three days---Furthermore, a crucial aspect to consider was that if a dying declaration had indeed been made by the deceased, there was no reasonable explanation as to why the complainant did not lodge the FIR on the same day---Given that the complainant was an educated individual, the failure to report the matter promptly raised serious doubts about the prosecution's case---Delay in lodging the FIR had not been satisfactorily explained, which significantly affected the credibility of the prosecution's version---Appeal against acquittal was dismissed, in circumstances.

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

----Ss. 302(b), 337-J, 506-B & 34---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, causing hurt by means of a poison, criminal intimidation, common intention---Appreciation of evidence---Dying declaration doubtful---Accused were charged for committing murder of the daughter of the complainant by administering poison---Complainant party alleged that the deceased made a dying declaration on 18-02-2016---However, the question arose as to why complainant party remained silent until 21-02-2016, i.e. period of three days---Strong evidence suggested that no such dying declaration was made by the deceased, based on the documents produced by the prosecution---Appeal against acquittal was dismissed, in circumstances.

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

----Ss. 302(b), 337-J, 506-B & 34---Qatl-i-amd, causing hurt by means of a poison, criminal intimidation, common intention---Appreciation of evidence---Call Detail Record not obtained---Effect---Accused were charged for committing murder of the daughter of the complainant by administering poison---Regarding the claim that the deceased's mother called her on her mobile phone and found it switched off, the prosecution failed to produce any evidence to substantiate that claim---In such a scenario, the best available evidence would have been the Call Detail Record (CDR) data, which could have prima facie established whether the call was made---However, the Investigating Officer did not obtain that data from the relevant franchise or service provider to verify whether the deceased's mother had indeed called her or not---Prosecution was duty-bound to obtain the Call Detail Record/ data of both mobile numbers, yet no visible effort was made in that regard---Appeal against acquittal was dismissed, in circumstances.

(f) Criminal trial---

----Benefit of doubt---Principle---Even if slightest doubt is created regarding the prosecution's case, such doubt must be resolved in favour of the accused, and not the prosecution.

Mehmood A. Qureshi for Appellant.

Muhammad Zareef Lakho, Advocate holding brief for Muhammad Aslam Bhutta for Respondents Nos. 1 to 4.

Abrar Ali Khichi, Additional Prosecutor General for the Respondent No. 5/State.

Date of hearing: 31st January, 2025.

Judgment

Jan Ali Junejo, J.---The appellant has challenged the judgment dated 04-09-2019 (hereinafter referred to as the Impugned Judgment) passed by the learned 1st Additional District and Sessions Judge, Malir, Karachi (Model Criminal Trial Court) in Sessions Case No. 245/2017. The case arose from FIR No. 306/2015, registered at Police Station Quaidabad, Karachi, for offenses under Sections 302, 337-J, 506-B, and 34 of the Pakistan Penal Code (P.P.C). By the Impugned Judgment, the respondents were acquitted of the charges.

1. According to the FIR, on 18-10-2016, between 11:00 AM and 2:00 PM, inside House No. 163/64, Labour Colony, Sector F2, Landhi, Karachi, the accused allegedly assaulted the deceased and issued threats to her, as well as to Mst. Shazia and Mst. Shahnaz. With the assistance of a male co-accused, they purportedly administered poison by mixing it with food, acting with common intention and full knowledge, thereby committing Qatl-e-Amd (intentional murder) of the deceased, Mst. Amna Bibi, daughter of Ubaid Muhammad Khan Niazi, aged 22 years. Consequently, the instant FIR was registered.

2. After completing the investigation, the Investigating Officer submitted the challan. Upon completion of all legal formalities, a formal charge was framed against two accused persons, who appeared for trial at Exhibit-02. Both pleaded not guilty and opted to contest the case, as recorded in their respective pleas at Exhibits 2/A and 2/B. The prosecution examined the following witnesses:

• PW-01 SIP Allah Nawazio (Exhibit-03), who produced the receipt of the dead body (Exhibit-3/A), application to the SHO (Exhibit-3/B), and a copy of the FIR (Exhibit-3/C).

• PW-02 Amir Nawaz (Exhibit-04), who produced the Mushir Nama (Exhibit-4/A).

• PW-03 Safdar Nawaz Khan (Exhibit-05).

Subsequently, the prosecution gave up witnesses PC Mubarak Shah and ASI Qayum, as recorded in Exhibit-06. Thereafter, two female accused joined the trial, and police papers were supplied to them at Exhibit-07. An amended charge was framed at Exhibit-08, to which they also pleaded not guilty, as recorded in their respective statements at Exhibits 8/A to 8/D. Further witnesses examined by the prosecution included:

• PW-01 Ubaid Muhammad (Exhibit-09), who produced a memo. (Exhibit-9/A).

• PW-02 Amir Nawaz (Exhibit-10), who produced the memo. of site inspection (Exhibit-11) and the memo. of arrest and recovery (Exhibit-11/A).

• PW-03 Allah Nawazio (Exhibit-12), who presented an entry (Exhibit-13), a letter to the civil hospital (Exhibit-14), a memo. of site inspection (Exhibit-15), an inquest report (Exhibit-16), an arrival entry (Exhibit-17), and the FIR registration entry (Exhibit-18).

• PW-04 Kaleemullah Khan Niazi (Exhibit-19).

• PW-05 Sameeullah Khan (Exhibit-20).

• PW-06 Tasneem Akhtar (Exhibit-21), who produced medical certificate (Exhibit-22), the medical cause of death (Exhibit-23), chemical report (Exhibit-24), and the final medical report (Exhibit-25).

The prosecution later gave up witnesses Inayatullah, ASI Abdul Qayum, and PC Mubarak, as recorded in Exhibit-26.

• PW-07 Safdar Nawaz Khan Niazi (Exhibit-27).

• PW-08 Ali Murad (Exhibit-28), who presented an investigation letter (Exhibit-29) and entries (Exhibits 30-32), along with a letter to the chemical examiner (Exhibit-33).

After examining all relevant evidence, the prosecution concluded its case and closed its side of the evidence, as recorded in Exhibit-34. The trial court then recorded the statements of the accused persons under Section 342 CrPC, wherein they denied the prosecution's allegations, claiming false implication in the case.

1. The learned counsel for the appellant forcefully argued that the trial Court failed to properly appreciate the prosecution's evidence, despite all witnesses fully supporting the case. He contended that:

• Eye-witness Testimonies: The prosecution witnesses unequivocally corroborated the allegations against the accused, yet their testimonies were disregarded without lawful justification.

• Medical and Forensic Evidence: The medical evidence conclusively established that the deceased died an unnatural death due to poisoning, reinforcing the prosecution's case.

• Motive for the Crime: The accused had a clear motive to administer poison to the deceased, as she was allegedly unable to conceive a child, which led to the commission of the crime.

• Dying Declaration: The deceased made a dying declaration in the presence of witnesses, explicitly naming the accused as the perpetrators. Since a dying declaration holds significant evidentiary value and can serve as the sole basis for conviction, this case warranted a guilty verdict.

• Failure of the Trial Court: The trial court erroneously acquitted the accused by failing to correctly interpret the evidence on record. The impugned judgment suffers from serious legal and factual infirmities, justifying its reversal.

On these grounds, the learned counsel prayed that the Impugned Judgment be set aside and the accused be convicted as per law. The learned Additional Prosecutor General (APG) supported the appellant's contentions, agreeing that the impugned judgment warranted interference. In view of these arguments, the learned APG contended that the Impugned Judgment was legally flawed and should be set aside.

1. The brief facts necessary for the disposal of this acquittal appeal are that on 18.10.2016, the mother of the deceased, Amna Khan, attempted to contact her daughter through mobile phone, but the device was continuously powered off. At 11:00 AM, she called again, and although the phone rang, the deceased did not answer. This raised suspicion, prompting the complainant, along with his wife (the mother of the deceased) and three sons-Kaleemullah, Samiullah, and Inayatullah-to visit her residence, which was located on the first floor of House No. 163/164, Labour Colony, Sector F2, Landhi. Upon arrival, they found that the door to her portion of the house was bolted from the outside. After unbolting it, they discovered Amna Khan in a critical condition. Upon inquiry, she disclosed that the accused had mixed poison into her food and administered it to her. She was immediately rushed to Jinnah Postgraduate Medical Centre (JPMC); however, she succumbed to the poisoning during the journey. Upon arrival at JPMC, she was pronounced dead.

2. The learned trial court considered the arguments presented by the defense counsel during the trial, which included the following contentions:

• Voluntary Ingestion of Poison: The defense argued that a fatal quantity of insecticide could only be consumed voluntarily, as its strong odor would naturally deter a person from ingesting it. Therefore, it was improbable that the deceased was forcibly poisoned.

• Alleged Suicide: It was asserted that the deceased had taken her own life due to her alleged involvement in relationships with multiple individuals through her Facebook account, which was operated under the name Faiza Baloch.

• False Implication: The defense contended that the accused had been falsely implicated in the case due to personal enmity and a grudge harbored by the complainant.

1. It is a well-established principle of law that the scope for interference in an appeal against an acquittal is extremely narrow and limited. This is because, in the case of an acquittal, the presumption of innocence is further reinforced, aligning with the fundamental tenet of criminal jurisprudence that an accused is presumed innocent until proven guilty. In other words, the presumption of innocence is effectively doubled. Courts are generally reluctant to overturn an acquittal unless it is demonstrated to be perverse, rendered in gross violation of the law, or vitiated by serious errors arising from a grave misreading or complete omission of evidence. Reference may be made to the legal precedent set by the Hon'ble Supreme Court in Sardaran Bibi v. The State and others (2024 SCMR 1116).

2. In case of (The State and others v. Abdul Khaliq and others "PLD 2011 SC 554"), it is held by the Honorable Apex Court that: "the scope of interference in appeal against acquittal is most narrow and limited because in acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty, in other words, the presumption of innocence is double. The courts shall be very slow in interfering with such an acquittal judgment, unless it shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence, such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. Interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and facts committed by the courts in arriving at the decision, which would result into grave miscarriage of justice, the acquittal judgment is perfunctory are wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the findings are perverse arbitrary, foolish, artificial, speculative and ridiculous. The Court of Appeal should not interfere simply for the reason that on the reappraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusion should not be upset, accept when palpably perverse, suffering from serious and material factual infirmities". In the case of (Maqsood Alam and another v. State, 2024 SCMR 156), held "scope for the accused to be afforded the right of benefit of doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the accused".

3. In light of the settled legal principles and guidelines, we have carefully examined the material available on record. According to WMLO Dr. Tasneem Akhter (PW-6), in her testimony, she stated that she conducted the post-mortem examination of the deceased, Amna Khan. She concluded that the cause of death was due to the ingestion of insecticide (from the phosphate group), which resulted in cardio-respiratory arrest. During cross-examination, Dr. Tasneem Akhter testified that there were no signs of violence on the deceased's body. She further explained that, for death to occur due to insecticide poisoning, a certain quantity of poison must be administered. If a lethal dose of poison is mixed with food, the person consuming it would likely detect an unusual odor or taste, potentially causing them to refuse the food. The same principle applies if the poison is mixed with a liquid, as such substances would not be ingested voluntarily without coercion. Moreover, the prosecution failed to secure any food or material evidence to establish that the deceased was poisoned through ingestion. Ultimately, Dr. Tasneem Akhter could not definitively determine whether the cause of death was homicidal or suicidal, thereby creating serious doubt. As a result, the benefit of the doubt must be given to the accused.

4. Upon careful examination of the record, it is evident that the incident occurred on 18.10.2016 at approximately 2:00 PM, while the FIR was lodged on 21-10-2016 at around 6:30 PM, resulting in an unexplained delay of more than three days. Furthermore, a crucial aspect to consider is that if a dying declaration had indeed been made by the deceased, there is no reasonable explanation as to why the complainant did not lodge the FIR on the same day. Given that the complainant was an educated individual, the failure to report the matter promptly raises serious doubts about the prosecution's case. The delay in lodging the FIR has not been satisfactorily explained, which significantly affects the credibility of the prosecution's version. In this context, the Hon'ble Supreme Court has previously drawn an adverse inference regarding unexplained delays in FIR registration.

2025 M L D 975

[Sindh]

Before Zafar Ahmed Rajput and Ms. Tasneem Sultana, JJ

Khalil Khan and another---Appellants

Versus

The State---Respondent

Spl. Cr. A.T Appeal No. 82 of 2024, decided on 10th February, 2025.

(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(1)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Infirmities in the prosecution case---Accused were charged that they made firing upon the police party when they were signaled to stop, complainant in retaliation also fired on them, resultantly, one of the appellant sustained injury on his left leg-calf and fell down and both the accused were apprehended by the police---Despite exchange of fires between appellants and police party, neither any Police Official or person from the public sustained any firearm injury nor the police mobile was damaged---Complainant and Investigating Officer had admitted said facts---Moreover, the incident had allegedly occurred at 10.25 pm on a busy commercial road but no person from the locality and public was associated as witness---Head Constable/eye-witness had admitted in cross-examination that the complainant did not make any effort to associate private persons from the locality as witness---Said witness had also admitted that at the time of incident a shop was opened---Police Official/witness had deposed that on receiving information about the police encounter, he reached the place of incident, where complainant handed over to him Medico-Legal Letter along with the injured, and he then shifted injured to Civil Hospital---Admitted position that Medico-Legal Letter bore the seal of the Police Station---Said fact did not appeal to a prudent mind that the said complainant was carrying with him the seal of Police Station at the time of incident---No plausible explanation in that regard was available on record, which led to inference that the injured appellant was not taken to hospital from alleged place of incident but from the Police Station---Circumstances established that the prosecution had failed to prove its case against the appellants/accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Umair and others v. The State 2017 YLR 1097 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(1)(a)---Attempt to commit qatl-i-amd, Assault or criminal force to deter public servant from discharge of his duty, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Fake encounter---Accused were charged that they made firing upon the police party when they were signaled to stop, complainant in retaliation also fired on them, resultantly, one of the appellants sustained injury on his left leg-calf and fell down and both the accused were apprehended by the police---Record showed that the clothes of the injured appellant were not secured by the complainant and the Investigating Officer, which raised serious doubt regarding the claim of prosecution that after receiving injury, the appellant fell on the ground---Though the prosecution had relied upon report of the blood swab, stated to be secured from crime scene, yet the report was of no assistance to the case of prosecution, as the same simply showed that the said blood was of human; however, it did not reflect that if the sample was in fact collected from the place of occurrence, as the same had not been shown collected from the alleged crime scene in presence of private mashirs---Complainant and mashir had deposed in their respective evidence that the members of Crime Scene Unit (CSU) arrived at place of incident to secure crime empties and bloodstained earth and secured the same without associating any witness---Since the alleged securing of said articles was unattested, it carried no authenticity---In modern age, every one carried cell phones with camera and even small shop keepers had CCTV Camera at their business places, yet in the instant case, the Investigating Officer made no effort to secure such recording of the incident or its after math---In the same sequence, it could be noted that the Investigating Officer also did not make any inquiry from people of the locality about the alleged police encounter---Moreover, it might be observed that neither complainant nor Investigating Officer had brought any material on the record to suggest that the appellants were ever involved earlier in any criminal case---Criminal record reports were silent on the previous criminal record of the appellants---Circumstances established that the prosecution had failed to prove its case against the appellants/accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

(c) Criminal trial---

----Benefit of doubt---Principle---Single circumstance creating reasonable doubt in a prudent mind about guilt of accused made him entitled to its benefit not as a grace or concession, but as a matter of right.

Ms. Farzana Mateen for Appellants.

Muhammad Noonari, D.P.G. for the State.

Date of hearing: 31st January, 2025.

Judgment

Ms. Tasneem Sultana, J.---Through this appeal, appellants, namely, Khalil Ahmed son of Habibullah and Sheeraz son of Niaz Muhammad have assailed the common judgment, dated 30.05.2024, passed by the learned Anti-Terrorism Court No. XX, Karachi in Special Cases Nos. 391, 391-A and 391-B of 2023, arisen out of FIR No. 206 of 2023 {under sections 353, 324/34, P.P.C. read with Section 7 of Anti-Terrorism Act, 1997 ("Act of 1997")} and FIRs. No. 207 and 208 of 2023 {under section 23(1)(a) of Sindh Arms Act, 2013 ("Act of 2013")}, registered at P.S Eidgah, Karachi, respectively, whereby they were convicted and sentenced, as under:-

(i) for offence under section 324/34, P.P.C. read with section 7(h) A.T.A., 1997, the appellants shall undergo R.I for five years and pay a fine of Rs. 20,000/-each, in default thereof, each appellant to undergo S.I. for six months;

(ii) for offence under section 353, P.P.C., each appellant shall undergo R.I. for one year;

(iii) for the offence under section 23(1)(a) of the Act of 2013, each appellant shall undergo R.I for five years and to pay fine of Rs.20,000/-, in default thereof, each appellant shall suffer S.I. for three months.

All the sentences were ordered to run concurrently and the benefit of section 382/B, Cr.P.C. was extended to appellants.

1. Brief facts of the prosecution case as unfolded by the complainant in FIRs are that, on 10.03.2023, at 10:25 p.m., at Orangzaib Market Eidgah, Karachi, Complainant ASI Syed Nasir Ali Shah during patrolling along with staff, signaled the appellants to stop, who were coming from Patel Road on a motor-cycle. On that, the appellants opened fire on police officials to deter them from discharging their duty and to cause their qatl-e-amd; the complainant in retaliation also fired on them, resultantly, appellant Khalil Khan sitting on pillion seat sustained injury on his left leg-calf and he fell down. Both the appellants were apprehended by the police. On personal search from appellant Khalil Khan, a .30-bore pistol along with magazine loaded with two live bullets- one in its chamber- were recovered while from search of appellant Sheraz a .30-bore pistol along with magazine loaded with one live bullet and one bullet in its chamber, were recovered besides some personal belongings. The appellants failed to produce the licenses of the recovered pistols for which separate FIRs under section 23(1)(a) of the Act of 2013 were registered against them.

2. After usual investigation, police submitted the charge-sheet against the appellants. The necessary documents as required under section 265-C, Cr.P.C. were provided to them. The Trial Court framed formal charge against the appellants, to which they pleaded not guilty and claimed to be tried. To prove its case, prosecution examined in all eight witnesses; PW-1 ASI Syed Nasir Ali Shah, complainant, examined at Ex.-5, who produced D.D Entry No. 56 at Ex. 5-A, memo. of arrest and recovery at Ex. 5-B, letter addressed to MLO at Ex. 5-C, copies of FIRs along with their entries at Ex. 5-D to Ex. 5-I, copy of entry in Register No. 19 at Ex. 5-J, memo. of inspection of the place of incident at Ex. 5-K; PW-2 ASI Habib-ur-Rehman examined at Ex. 6, who produced DD Entry No. 57 at Ex. 6-A; PW-3, MLO, Dr. Gulzar Ali examined at Ex. 7, who produced Provisional and Final MLCs of injured appellant Khalil Khan at Ex. 7-A and Ex. 7-B; PW-4 ASI Abid Ali examined at Ex. 8, who produced DD Entry No. 71 at Ex. 8-A, road certificate to case property at Ex. 8-B; PW-5, mashir, HC Sajid Pervaiz examined at Ex. 9; PW-6 Anzal, the owner of the recovered motorbike examined at Ex. 10; PW-7 SIP Mohammad Iqbal examined at Ex. 11, who produced SIO-II form of recovered empties and blood sample at Ex. 11-A, entries No. 8,9, and 12 at Ex.11-B; PW-8, I.O., Inspector Mohammad Ismail examined at Ex. 12, who produced DD Entry No. 08 at Exs. 12-A, DD Entry No. 30 at Ex. 12-B, deployment list of police official at Ex. 12-B/1 to Ex.12-B/12, DD Entry No. 33 at Ex.12-C. The statements of appellants under section 342, Cr.P.C. were recorded at Ex. 14 and 15 respectively, wherein they denied the allegations against them and claimed to be innocent. Appellant Khalil Khan in his 342, Cr.P.C. statement has stated that in fact police picked him prior to incident and then injured him at police station by making fire shot and then shifted him to hospital for treatment. Appellant Sheeraz has stated that police arrested him from in front of his house situated at Cheel Chowk and then booked him in these false cases. They, however, neither examined themselves on oath to disprove prosecution's allegations nor even led any evidence in their defence. The Trial Court after hearing the learning counsel for the appellants as well as A.P.G. for the State convicted the appellants and sentenced them as mentioned above, vide impugned judgment.

3. We have heard the learned counsel for the appellants as well as D.P.G. for the State and perused the material available on record with their assistance.

4. Learned counsel for the appellants inter-alia has contended that the Trial Court has failed to appreciate law and facts involved in the cases and the material contradictions in the statements of the prosecution witnesses, which have created serious doubt in the prosecution case. She has further contended that in alleged encounter neither any of the police officials sustained injury nor even any damage was caused to police mobile. She has also contended that police failed to associate any private witnesses from the locality to prove alleged encounter and recovery of arms. She added that the appellants have no criminal history and they were arrested prior to incident and then police fixed them in a fake encounter and recovery of illegal arms cases after half frying appellant Khalil Khan.

5. Conversely, learned D.P.G for the State while supporting the impugned judgment has maintained that the prosecution has proved its case through ocular and circumstantial evidence. He has further maintained that the appellants had opened fire with their unlicensed pistols on police officials on duty with intention to kill them. He while referring to FSL report and MLC of injured appellant Khalil Khan has also maintained that the crime empties seized from crime scene have been matched with the weapon recovered from the possession of the appellants and the said injured appellant sustained injuries at the spot during encounter.

6. It may be observed that it is the governing principle of criminal law that the onus lies upon the prosecution in a criminal trial to prove all the elements of the offence with which the accused persons are charged with. Article 117 of Qanoon-e-Shahadat Order, 1984 provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that these facts exist. It may further be observed that since in a criminal case liberty of an accused is at stake, a strict standard of proof is required to establish his guilt, which cannot be based on preponderance of probabilities but it must be proved beyond reasonable doubt. The words "beyond reasonable doubt" means that the prosecution must convince the Court that there is no other reasonable outcome of the evidence produced in trial except the conviction.

7. In the case in hand, it appears from the perusal of the record that only PW-1, complainant, ASI Nasir Ali Shah and PW-5, mashir, HC Sajid Pervaiz are the eye-witnesses of the incident. The prosecution through P.Ws have produced memos of arrest and recovery and place of incident, FSL report, Medico Legal Certificate and Serological Analysis Report (SAR). However, prosecution has to prove that the appellants on the alleged day and time were present at the alleged place and they opened fire on police officials to deter them from performing their duty with intention to commit their qatl-e-amd and police succeeded to apprehend them along with illegal arms. Prima facie, while convicting the appellants, the Trial Court did not appreciate the fact that despite exchange of fires between appellants and police party, neither any police official or person from the public sustained any firearm injury nor the police mobile was damaged. In their depositions, P.W-1, complainant, ASI Syed Nasir Ali Shah (Ex-5) and P.W-8, I.O, PI Muhammad Ismail (Ex-12) have admitted these facts. Moreover, the incident had allegedly occurred at 10:25 p.m. on a busy commercial road but no person from the locality and public was associated as witness. P.W-5, eye-witness, HC Sajid Pervaiz (Ex-9) has admitted in-cross-examination that the complainant did not make any effort to associate private persons from the locality as witness. He has also admitted that at the time of incident shop of Iqbal Sheermal was opened. PW-2 ASI Habib-ur-Rehman (Ex.6) has deposed that on receiving information about the police encounter, he reached the place of incident, where complainant ASI Nasir Ali Shah handed over him ML Letter (Ex.7-C) along with injured, he then shifted injured Khalil Khan to Civil Hospital. It is an admitted position that Ex.5-C bears the seal of the Police Station. It does not appeal to a prudent mind that the said complainant was carrying with him the seal of P.S. at the time of incident. No plausible explanation in this regard is available on record, which leads to inference that the alleged injured appellant was not taken to hospital from alleged place of incident but from the police station.

8. It is also matter of record that the clothes of the injured appellant were not secured by the complainant and the I.O, which raises serious doubt regarding the claim of prosecution that after receiving injury, the appellant fell on the ground. Though the prosecution has relied upon SLR of the blood swab, stated to be secured from crime scene, yet the SAR is of no assistance to the case of prosecution, as the same simply shows that the said blood was of human; however, it does not reflect that if the sample was in fact collected from the place of occurrence, as the same has not been shown collected from the alleged crime scene in presence of private mashirs. Another aspect of the case is that the said complainant and mashir have deposed in their respective evidence that the members of Crime Scene Unit (CSU) arrived at place of incident to secure crime empties and bloodstained earth and secured the same without associating any witness. Since the alleged securing of said articles is unattested, it carries no authenticity. In this modern age, every one carries cell phones with camera and even small shop keepers have CCTV Camera at their business places, yet in the instant case, the I.O. made no effort to secure such recording of the incident or it's after math. In the same sequence, it can be noted that the I.O also did not make any inquiry from people of the locality about the alleged police encounter.

2025 M L D 1001

[Sindh]

Before Muhammad Jaffer Raza, J

Dr. Hassan Fatima, Sindh Medical Centre through attorney---Petitioner

Versus

Pakistan Red crescent society through Provincial Secretary and 2 others---Respondents

C.P. No. S-15 of 2025, decided on 24th March, 2025.

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

----Ss.15-A & 15(2)(vii)---Eviction of tenant---Personal bona fide need of land lord---Default in payment of rent---Landlord's testimony viz. bona fide need sufficient if unshaken in cross-examination---Landlord's testimony going unrebutted---Ejectment upheld---Protection to tenants---Accountability mechanism in place to discourage the misuse of ejectment proceedings by landlord---Scope---Reletting of the same premises by landlord within one year attracts penalty ---The respondent No.1 (landlord) filed ejectment petition on the ground of default by petitioner (tenant) and personal bona fide need---Rent Controller allowed the ejectment application and appeal of the petitioner (tenant) was dismissed---Against the concurrent findings of the courts below petitioner (tenant) filed the present constitutional petition---Held Once the landlord stepped into the witness box and the plea of personal need went unrebutted, the ejectment application must be allowed under S.15 of the Sindh Rented Premises Ordinance, 1979---It was evident from perusal of the cross-examination conducted on the respondent No.1 (landlord) that the plea of the landlord had not been shattered and no further cross-examination was conducted and only a suggestion regarding personal bona fide need was put to the witness and no other question in relation to the same was asked---For seeking eviction of a tenant from the rented premises the only requirement of law was to prove bona fide need by the landlord---However, where a landlord who obtained possession of a building from a tenant on account of his personal bona fide need and then re-let the building or premises to any person other than the previous tenant or utilized the premises for a use other than his personal use within one year of such possession then he would liable to be punished with fine not exceeding one year's rent of the building premises and the tenant who was evicted may apply to the Rent Controller for an order directing that he be restored possession ---This accountability mechanism provided under S.15-A of the Sindh Rented Premises Ordinance, 1979 was introduced to ensure that ejectment proceedings were not abused and due protection was given to the tenant in cases where landlord had misused the provisions of the Ordinance, 1979---The protection given by the said provision was also available to the petitioner, however, his case did not fall within the parameters of the same, hence, the Constitutional petition was dismissed, in circumstances.

Jehangir Rustom Kakalia v. State Bank of Pakistan 1992 SCMR 1296; Wasim Ahmad Adenwalla v. Shaikh Karim Riaz 1996 SCMR 1055; Rabia Jamal v. Mst. Nargis Akhtar C.P. No. S-495/2023 Order dated 21.07.2023; Shakeel Ahmed and another v. Muhammad Tariq Farogh 2010 SCMR 1925; Mst. Zubeda through her son and General Attorney v. Muhammad Nadir 1999 MLD 3011 and Mst. Dilshad Bibi v. Ramzan Ali 2006 CLC 1853 rel.

Muhammad Aslam and S.M. Jahanbir for Petitioner.

Iftikhar Javed Qazi, Asfandyar Jahangir, Samil Malik Khan and Koonj Bhutto for Respondents.

Irshad Ahmed Shaikh, A.A.G. for the State.

Date of hearing: 17th March, 2025.

Order

Muhammad Jaffer Raza, J.---The instant petition has impugned the concurrent findings of learned lower fora. In seriatim, Judgment dated 11.12.2024 passed in F.R.A. No.173/2024 by learned Additional District Judge-XII, South, Karachi and Judgment dated 25.05.2024 passed in Rent Case No. 1295/2016 by learned Rent Controller-II, South, Karachi ("Impugned Judgments")

Facts of the case are summarized as under: -

1. The Respondent No.1 being owner of the tenement in question filed Rent Case No. 1295/2016 on the ground of default and personal bona fide need. The same was disposed of vide Judgment dated 25.05.204 by the learned Rent Controller and the rent application was allowed. The points for determination were settled as follows: -

Point No.1: Whether the opponent is liable to pay rent of the demised premises at an agreed enhanced rat of 10% every year by virtue of the Memorandum of Understanding dated 18.08.2011?

Point No.2: Whether the opponent has committed willful default in payment of rent of the demised premises as per MOU dated 18.08.2011?

Point No. 3: Whether the applicant is in bona fide need of the demised premises for its personal use in order to set up the charitable hospital in collaboration with the German and British Red Crescent Society?

Point No.4: Whether the opponent has committed default in payment of water and conservancy charges since 2001 in terms of clause-2 of the lease agreement dated 18.02.1984?

Point No.5: What should the judgment be?

1. The rent application was allowed and all four points stood proved, thereafter, the Petitioner filed F.R.A. No. 173/2024 and the same was dismissed vide Impugned order.

2. Learned counsel for the Petitioner has argued that he is a doctor and running hospital in the name of Sindh Medical Center and providing services in the field of Health Care Management. Learned counsel states that the relationship between the parties is not denied, however, the ejectment application filed by the Respondent No.1 ought to have been dismissed on both grounds for the reason that no default was committed by the Petitioner and the Respondent No.1 has failed to prove his personal bona fide need. Learned counsel in this respect concedes that earlier in the year 2006, the compromise took place between the parties as a result of which an MoU was executed. It is further stated that the judgment passed by the learned Rent Controller is based on another MoU, the execution of which is denied by the Petitioner. It is further stated that requirements of personal bona fide need have been elaborated by the Respondent No.1 in paragraph number 9 of his rent application and it is stated by the learned counsel that the same does not meet the requirements of law set out under Section 15(2)(vii) of the SRPO. For the purpose of convenience, the learned counsel has read out the paragraph number 9 of the rent application which is reproduced as under:-

"9. That it is also to be mentioned that Applicant in connivance with the German Red Cross and British Red Cross is planning to establish a Charitable Hospital for the poor and needy persons. Since the Opponent is a clear default and liable to be ejected from the demise premises. The Application in order to build up its Charitable Hospital need the said demise premises for its personal bona fide need."

1. At this juncture, both learned counsel agreed that for the purposes of the instant petition, it may be convenient to first adjudicate the ground of personal bona fide need and if the need arises, the ground of default can be adjudicated upon. I have specifically asked the learned counsel for the Petitioner, to point out the part of cross-examination in which according to him, the ground of personal bona fide need has been shattered. Learned counsel in response has invited my attention to page 403 which is a cross-examination of the applicant/Respondent No.1 and the same is reproduced hereunder: -

It is in my knowledge that after filling of my ejectment application, the opponent filed his written statement. It is correct to suggest that some documents were attached with written statement. It is correct to suggest that document attached with written statement dated 10.04.2004 as annexure "A" is a correspondence between applicant and opponent. It is incorrect to suggest that the document attached with written statement as annexure "B" which is memorandum of understanding dated 12.04.2012 was executed between applicant and opponent. It is incorrect to suggest that the document which is annexure "B" bears ay signature. It is not in my knowledge whether opponent had sent the letter to the applicant to bring all the relevant documents in respect of demised premises before this court. It is correct to suggest that the correspondence in respect of demised premises has taken place time to time between opponent and the applicant. Yes, I can produce the record in respect of correspondence held between applicant and the opponent from the year 2011 till to date again says all the relevant documents in respect of correspondence, I have already produced before this court. It is correct to suggest that annexure "C" dated 13.08.2011 attached with written statement has been issued by the applicant. It is correct to suggest that we have received the annexure "D" dated 15.08.2011 attached with written statement is correct to suggest that the applicant has issued letter dated 28.07.2001 which is attached with written statement as annexure "E". It is correct to suggest that the document dated 30.06.2007 which is annexure "F" attached with written statement is available in the record of applicant. It is correct to suggest that apparently this document which is annexure "F" states that the water dues have been adjusted from the account of opponent but it is subject to verification as we have not officially received this letter from KWSB. It is correct to suggest that the applicant had issued letter dated 17.03.2016 which is annexure "G" and same is attached with written statement. It is correct to suggest that the applicant had filed one rent case No. 1366/2006 under section 15 SRPO against the opponent in the year 2006. It is incorrect to suggest that the applicant had levelled similar allegations in above rent case as have been levelled in this case. It is correct to suggest that apparently annexure H/1 attached with written statement has been issued by the applicant but it is subject to verification from the office as it is an old document pertaining to year 2003 and same is signed by Hussain Bux Hoat but not me. It is not in my knowledge whether opponent had written a letter which is annexure H/2 voluntarily says that this letter is undated. It is incorrect to suggest that I am deliberately not producing the relevant documents before this court voluntarily says that I have already produced. It is correct to suggest that the rent case bearing No. 1366/2006 was disposed of on the basis of compromise. It is correct to suggest that annexure H/5 dated 19.03.2009 attached with written statement has been issued by me. It is correct to suggest that both the parties were bound on the terms and condition mentioned in a document dated 12.02.1984 produce by me and same has been marked as x until the signing of MOU dated 18.08.2011, Further cross-examination is reserved on the request of learned counsel for the opponent. It is incorrect to suggest that another MOU was also prepared/executed after the execution of MOU produced at Ex. A/2. is correct to suggest that some properties are mentioned in indenture of was executed in the year 1984 which has been marked on Xi correct to suggest that the details of sad properties are not mentioned in ejectment application as well as in my affidavit-in-evidence voluntarily says that details of current properties are mentioned in MOU signed on 18 August 2011 which has been produced at Es. A/2. It is correct to suggest that the applicant had filed one rent case tearing No 1306/2006 against the opponent. I don't remember at present whether applicant had not mentioned the details of properties mentioned in ar deed executed in the year 1984 in memo. of ejectment application as well as in affidavit in evidence of above rent case (1366/2006). It is correct to suggest that the applicant obtained possession of some of the properties mentioned in lease deed executed in the year 1984 from the opponent after exerting pressure upon him and thereafter rented out the same to some other tenants. At the moment I am not aware of the letter dated 19 July 2017 allegedly sent by the opponent through courier service to the applicant whether it was received by our office or not but we will give due reply after confirmation. The applicant has not received the letter dated 19.07.2017 voluntarily says that I have filed statement on 11.01.2018 and has also attached photocopies of paid water bills. It is incorrect to suggest that I have deposed falsely that the applicant has not received letter dated 19.07.2017. It is correct to suggest that I have filed the photocopies of paid water bills of entire building where the demised premises is situated but not exclusively of the demised premises. There are 20/22 tenants in the entire building It is correct to suggest that I have not produced the document showing the breakup of amount of the each tenant in respect of water voluntarily says that I have attached documents as annexure D to D/23 which show the water bills and maintenance charges along with Tet of the demised premises. It is correct to suggest that I have not duced original bills of paid water bilis. It is correct to suggest that the document attached with memo. of ejectment application as annexure D/1 which shows the amount of Rs.26,064/- as bill of water consumption for the month of October 2016 for the demised premises. It is incorrect to suggest that I have attached fake bills with memo. of ejectment application as annexure D to D/23. It is incorrect to suggest that the landlord has to pay all the Government taxes in respect of demised promises voluntarily says that the landlord has only to pay the property tax whereas the water and conservancy tax is to be paid by the tenant. I see annexure D of the meme of ejectment application and say that it allows the outstanding amount of Rs 87,20,839/-in respect of water and conservancy charges up to the month of October 2016 for the demised premises. It is correct to suggest that annexure D does not show the breakup of outstanding amount in months voluntarily says that when the opponent raised objections in this regard the applicant made correspondence and produced the rent account which is annexed with memo. of ejectment application as annexure F/1. It is correct to suggest that one bill dated 03.11.2016 is also part of the annexure D which shows the outstanding amount up to the month of October 2016 as Rs.57,04,773/-. It is incorrect to suggest that I have not mentioned the difference in both bills of annexure D voluntarily says that the both bills are different wherein one bills is for rent and second one is a maintenance bill therefore the difference between both bills cannot be compared. I don't remember the exact amount for charging the maintenance bill per square feet for demised premises. It is incorrect to suggest that the plaintiff has not sent the documents which are attached with memo. of ejectment application as annexure D to D/23 to the opponent nor received by the opponent. It is correct to suggest that the opponent is paying the rent regularly through cheque to the applicant voluntarily says that he is paying without enhancement of 10% rent and has also defaulted in payment of arrears of water and conservancy charges. It is correct to suggest that as per lease agreement, the rent of the demised premises was to be increased 10% after every three years voluntarily says that in August 2011, opponent agreed to pay 10% annual enhancement of rent. It is correct to suggest that the lease agreement dated 18th February 1984 which is marked as X is a registered document voluntarily says that the applicant had not got it registered but as per claim of the opponent it has been registered by the opponent. The original of the document marked as X is not in our custody. It is incorrect to suggest that I have not produced original of the annexure X with mala fide intention. I don't know at present whether the opponent has been paying the rent with 10% enhancement after every three years voluntarily says that I have to check it from my office. It is correct to suggest that the opponent is paying the monthly rent of the premises regularly, Voluntarily says that however, he is not paying the water charges. It is incorrect to suggest that any other MOU was made between the applicant and opponent subsequently MOU referred at para No. 2 of the letter dated 20.01.2016 vide Ex. A/5. It is correct to suggest that the sub lease between the parties is registered in respect of the premises in question. I don't know that the MOUs have got any precedence over the registered sub lease legally. Voluntarily says that however the said MOUs were made with mutual consent of the parties and same are part and parcel of sub lease. The MOUs made between the parties are not registered. It is incorrect to suggest that the opponent uses to pay the water charges to the water board directly. I don't reme bar as to how the MOUs were sent to the opponent. It is correct to suggest that any document on refusal to be received in person is sent through courier service. It is correct to suggest that I have not produced any postal/courier service receipt in respect of such MOUSJ. It is correct to suggest that the said MOUs don't bearing any receiving. It is correct to suggest that a letter dated 17.03.2016 vide Ex. A/7 was sent to the opponent through courier service and that its reply was also sent by the opponent dated 05.05.2016 at Ex. A/10. It is incorrect to suggest that the letters dated 07.04.2016 and 27.04.2016 vide Ex. A/8 and A/9 have never been sent to the opponent and that same have been prepared /fabricated only for the purpose of record. It is correct to suggest that the letter dated 10.04.2016 attached as Annexure A with written statement was sent by the accountant of the applicant to the opponent. It is incorrect to suggest that MOU dated 12.04.2012 was made between me being the representative of the applicant and tenants. Voluntarily says that it is false and fabricated document. It is incorrect to suggest that it bears my signature. Voluntarily says that the original is not being shown in order to properly verify the same. It is correct to suggest that the letter dated 13.08.2011 was sent by me to the opponent. It is correct to suggest that the said letter was responded by the opponent through its letter dated 15.08.2011 being annexure D attached with the written statement. It is correct to suggest that the letter dated 28.07.2001 was sent by the applicant to the MD of KWSB in respect of water charges. It is incorrect to suggest that the KWSB sent any letter in response to the said letter to us/applicant. It is correct to suggest that the rent case No: 1366/2006 was filed by the applicant against the opponent. It is correct to suggest that the said case was withdrawn since compromise was effected. It is incorrect to suggest that the said rent case was filed on the same ground of non-payment of water charges and default in payment of the rent. Voluntarily says that it was in respect of enhancement of the rent. It is incorrect to suggest that the applicant is adopting different methods in order to make the applicant to enhance the rent. It is incorrect to suggest that the applicant has ever stopped the water supply of to the opponent. It is correct to suggest that the applicant has asked the opponent to get installed separate electricity connection/meter. It is incorrect to suggest that neither the opponent has committed in default in payment of the rent nor in payment of water charges. It is correct to suggest that almost all of the offices are rented out and the clinics are situated therein. The 10 percent of the property of the applicant is in its own use. It is incorrect to suggest that the premises-in-question are not in personal need of the applicant. Voluntarily says that the same are needed for setting up medical centre, OPD etc for the welfare of public. It is incorrect to suggest that I am deposing falsely. It is incorrect to suggest that I have filed false application against the opponent in order to harass him. (Emphasis Added)

1. Learned counsel further argued that in paragraph number 9 (reproduced above) it is evident that the tenement is not required for the personal use and the intention of the Respondent is mala fide. It was also argued that it is apparent from bear reading of paragraph Number 9 (reproduced above) that the Respondent No.1 wishes to rent out the property to another tenant.

2. Conversely, learned counsel for the Respondent No.1 has argued that witness of the Respondent No.1 has reiterated his stance taken in the rent application as well as in the affidavit in evidence. He has further stated that the Respondent No.1 has fully discharged its burden and the Petitioner failed to shatter the evidence of the witness of the Respondent No.1. He has further argued that it is unconscionable that a landlord has being deprived of the tenement even though the rent application was filed in the year 2016. On the averment of the Petitioner regarding renting out the property to another tenant, learned counsel stated that adequate protection is provided under Section 15A of the SRPO.

3. Heard learned counsel and perused the record. It is evident that the Petitioner conducted a very detailed cross-examination of the Respondent No.1, on several dates, only a portion of which has been reproduced above. It is evident from perusal of the cross-examination reproduced above, that the plea of the landlord has not been shattered and no further cross-examination was conducted in reference to this ground by the Petitioner. It is noticeable from a bare perusal of the cross-examination that only a suggestion regarding personal bona fide need was put to the witness and no other question is relation to the same was asked.

4. The argument of the Petitioner in reference to tenement being rented out to another tenant, I agree with the contention of the learned counsel for the Respondent No.1, that Section 15A of the SRPO provides adequate relief/protection to the tenant in such circumstances. It is a settled principle of law that once the landlord steps into the witness box and the plea of personal need is unrebutted, the ejectment application must be allowed under Section 15 of the SRPO. The following judgements advance the said proposition. The respective judgments and their relevant parts are reproduced below: -

• Jehangir Rustom Kakalia v. State Bank of Pakistan

"Rule laid down in the cases mentioned above is that on the issue of personal need, assertion or claim on oath by landlord if consistent with his averments in his application and not shaken in cross-examination, or disproved in rebuttal is sufficient to prove that need is bona fide."

• Wasim Ahmad Adenwalla v. Shaikh Karim Riaz

"3. Leave was granted to consider the contention that the plea of personal requirement was not bona fide as a flat was available in the same premises which A the Respondent did not occupy. The learned counsel for the appellant contended that the Respondent is residing in a bugalow in Defence Housing Authority and that it is not imaginable that he would shift in a small house in a dingy and congested locality. He further contended that during the pendency of the case a portion of the house, which was an independent apartment, fell vacant, but the Respondent did not occupy it and rented it out to the tenant. On the basis of these facts it is contended that the Respondent's need is neither genuine nor bona fide. So far the first contention is concerned the learned counsel for the Respondent stated that the Respondent is residing in a rented house with his son in the Defence Housing Authority. The contention of the learned counsel for the appellant therefore does not hold water because firstly, the Respondent is not residing in his own house, but is residing with his son who has rented out a house in that area, and secondly, in these circumstances if a landlord chooses to reside in his own house which may be in a locality which is much inferior and congested than the place where he is residing on rent, it cannot be termed as mala fide. It is the choice of the landlord to choose the house or the place where he wants to reside." (Emphasis added)

• Rabia Jamal v. Mst. Nargis Akhtar

"22. On the basis of the above decisions of the Supreme Court of Pakistan, it is apparent that once the landlord has adduced evidence by stating that they require the Said Tenement for their personal use in good faith, thereafter the burden shifts on the tenant to show either that the landlord did not require the Said Tenement for her personal use in good faith or that the Said Tenement could not be used by the landlord for the purpose as indicated in the Application under clause (vii) of subsection (2) of Section 15 of the Sindh Rented Premises Ordinance, 1979. However, while raising such a contention it is not open to the tenant to allege mala fide on the part of the landlord by adducing evidence to state that the landlord had alternative premises or for that matter that the landlord had alternative premises that were more suitable for the needs of the landlord. This right to choose from amongst a host of properties that are available to a landlord as to which of those properties the landlord requires for their personal use vests solely with the landlord to the exclusion of all others." (Emphasis added)

• Shakeel Ahmed and another v. Muhammad Tariq Farogh

"6. For seeking eviction of a tenant from the rented shop, the only requirement of law is the proof of his bona fide need by the landlord, which stands discharged the moment he appears in the witness box and makes such statement on oath or in the form of an affidavit-in-evidence as prescribed by law, if it remains unshattered in cross-examination and un-rebutted in the evidence adduced by the opposite party."

1. Any adjudication on Section 15(2)(vii) would be deficient without referring to the accountability mechanism provided for under Section 15-A of the SRPO. The same is reproduced below: -

3[("15-A"] 4[ Where the land-lord, who has obtained the possession of a building under section 14 or premises under clause (vii) of section 15, relets the building or premises to any person other than the previous tenant or puts it to a use other than personal use within one year of such possession-- (i) he shall be punishable with fine which shall not exceed one year's rent of the building of the premises, as the case may be, payable immediately before the possession was so obtained. (ii) The tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of the building or the premises, as the case may be, and the Controller shall make an order accordingly."]

1. The provision reproduced above was introduced by the legislature through the Sindh Ordinance No. II of 1980 on January 21, 1980, to ensure that ejectment proceedings are not abused and due protection is given to the tenant in cases where the landlord/owner has misused the provisions of the Ordinance. An embargo of one year has been placed on the landlord in case the landlord wishes to rent out the property to another tenant. The protection given, which is also available to the present Petitioner, has been expounded in the following judgments, relevant parts of the same are reproduced: -

a) Mst. Zubeda through her son and General Attorney v. Muhammad Nadir.

2025 M L D 1019

[Sindh (Mirpurkhas Bench)]

Before Amjad Ali Bohio and Dr. Syed Fiaz-ul-Hassan Shah, JJ

Jeendal Shah---Applicant

Versus

The State---Respondent

Criminal Appeal No. 66 of 2024 converted into Criminal Revision Application No. D-01 of 2025, decided on 4th February, 2025.

Criminal Procedure Code (V of 1898)---

----Ss. 408, 410 & 412---Control of Narcotic Substances Act (XXV of 1997) [as amended by Control of Narcotic Substances (Amendment) Act (XX of 2022)], S. 9(1)(3)(a)---Possession of narcotic substance---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Prosecution case was that 215-grams charas was recovered from the possession of applicant---Applicant (convict) had not disputed the extent and legality of his sentence of simple imprisonment and quantum of fine---In such circumstances, the applicant was barred from challenging his conviction by way of appeal under S.408, Cr.P.C before the Sessions Court and also barred from challenging the same under S.410, Cr.P.C, before the High Court---Applicant could not be allowed approbate and reprobate in same breath as once he had admitted his guilt voluntarily by putting himself at the mercy of Court, subsequently he was precluded to dispute the conviction and he would be bound by his free stance before the Trial Court---Therefore, the applicant had no vested right to challenge the sentence as illegal or improper by filing an appeal in terms of S.408, Cr.P.C and the appeal was overtly barred under S.412, Cr.P.C---However, sentence was reduced to one as already undergone while looking to the mitigating factors that the applicant was first offender and he was the only breadwinner of his family---Revision petition was dismissed with modification in sentence.

Mst. Ubaida v. Makhdoom Abrar Ahmed and 2 others 1986 PCr.LJ 539; Sakhwat Ali v. The State 1999 PCr.LJ 450; Faiz Muhammad v. Abdu Rauf and others 1999 PCr.LJ 864 and Ataullah v. Abdul Razzak and another PLD 2002 SC 534 rel.

Bhooro Bheel for Applicant.

Shahzado Saleem, A.P.G. Sindh for the State.

Date of hearing: 4th February, 2025.

Order

Dr. Syed Fiaz-ul-Hassan Shah, J.---The Applicant Jeendal Shah was indicted in a case FIR No.101/2024 registered under section 9(1)(3)(a) of Control of Narcotic Substances, 1997 with PS Kunri, District Umerkot. After filing of application for admission of guilt with prayer to take lenient and sympathetic view by putting himself in the clutches of Court. The learned trial Court through Order dated 19.09.2024 convicted the Applicant under section 9(1)(3)(a) of the Control of Narcotics Substance (Amendment) Act, 2022 read with section 243 of the Criminal Procedure Code, 1898 and Sentence for One-year simple imprisonment together with fine of Rs.5000/- or in default of payment of fine amount to further undergo 10 days' simple imprisonment. The benefit of section 382-B of the ibid Code was also extended to the Applicant. Being aggrieved with the said Order, the Applicant has filed Criminal Appeal No.09/2024 under Section 408 ibid Code which was dismissed through the Judgment dated 05.12.2024 which has impugned before us.

1. As per facts narrated in the FIR lodged by complainant ASI Muhammad Sharif Khoso, PS Kunri that on 17-05-2024 at 0900 hours "he, along with his subordinate staff, namely HC Shamro Mal, PC Chetan Kumar, left the PS in an official vehicle driven by PC Danish, as per roznamcha entry No. 26 at 0600 hours for investigation of Crime No. 99/2024 registered under sections 420, 381-A, P.P.C. at the same police station. During patrolling when they reached at Gohar pump where received spy information that wanted accused Jeeandal Shah is standing near Dharo stop for going towards some place; on such information they reached at the pointed place on 0750 hours, where saw that a person was standing at the Northern side of the road; he to see the police mobile tried to slip away but they apprehended him. On inquiry he disclosed his name as Jeendal Shah son of Mukhtiar Ali Shah resident of village Taj Muhammad Shah, Shaikh Bhurkio Tando Muhammad khan. From his personal search, one black colored plastic shopper was recovered from the side pocket of his shirt, which contained 29 small and big pieces of chars. The recovered chars were weighed which became 215 grams about which he disclosed to Police Official that he sells it. The recovered chars were sealed at the spot. After preparation of such memo, they brought arrested accused and recovered property at PS, where complainant lodged instant FIR."

2. The Counsel for the Applicant has contended that impugned judgment of conviction and sentence is against the provisions and guidelines of superior courts; that learned trial court has not considered that no independent witness of the occurrence is available and only police officials are the prosecution witnesses; that place of incident is thickly populated area but police/I.O has failed to associate any private person even the FIR was registered on spy information; that narcotics contraband was not recovered from the possession of the Applicant and it has been foisted upon the Applicant with mala fide intention; that doctrine of safe custody and safe dispatch was violated by prosecution's side as neither Malkhana Incharge has appeared to prove the safe custody nor entry of Malkhana has been produced. Lastly he prayed for setting aside the conviction. On the other hand, learned Additional Prosecutor General supported the impugned judgment. However, he candidly suggested to reduce the sentence which has undergone.

3. We have heard the Counsel for Applicant as well as learned Addl. Prosecutor General Sindh and perused the available record along with the impugned Judgment with their assistance and observed that the Applicant has initially filed Criminal Appeal No.D-66/2024 under section 410 Criminal Procedure Code, 1898 and later on his oral request vide Order dated 22.1.2025 same was allowed and the Criminal Appeal was converted into Criminal Revision Application No.D-01/2025. The law provides distinctive treatment of the Criminal Appeal and Criminal Revision. The grounds for institution of Appeal are quite different from the grounds of Revision.

Nevertheless, we have decided to clarify the legal position about the specific concept of appeals. Every person convicted of an offence has a right of appeal under the Criminal Procedure Code, 1898. An appeal may be filed both against conviction and sentence and on facts and law. A convicted person is entitled to ask an appellate court to re-appraise the evidence and come to its own conclusion. An Appellate court has the undoubted power to dismiss an appeal in limine but it must be exercised sparingly and with circumspection. However, Section 404 of the Code direct and require a legal mechanism to administer and assign appeals to Court juridical and it does not ordain to file an appeal at one's whims and wishes. The said provision is re-produced as under:

"404. Unless otherwise provided, no appeal to lie: No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force."

1. Keeping in view the above administration, an appeal against conviction by Magistrate empowered under Section 30 of the Code would either lie to Court of Sessions in terms of Section 408 of the Code or to the High Court in terms of Section 410 of the Code subject to the Sentencing guidelines which has elaborately enumerated in the enabling provisions itself. The relevant provision of law which deals with the instant case is Section 408 of Criminal Procedure Code, 1898. The said provision is reproduced hereunder:

"408-Appeal from sentence of Assistant Sessions Judge or [Judicial Magistrate]. Any person convicted on a trial held by an Assistant Sessions Judge, or any [Judicial Magistrate] [Special Magistrate] or any person sentenced under Section 349 [....] may appeal to the Court of Session:

Provided as follows:

(a) Clause (a) Rep. by Act 12 of 1923, S.23.]

(b) When in any case an Assistant Sessions Judge [...] passes any sentence of imprisonment for a term exceeding four years, [...] the appeal of all or any of the accused convicted at such trial shall lie to the High Court:

(c) When any person is convicted by a Magistrate of an offence under Section 124-A of the Pakistan Penal Code, 1860 the appeal shall lie to the High Court.

1. The above provision has two distinguish situations. Any person who is convicted on a trial held by Judicial Magistrate, Special Magistrate or Assistant Sessions Judge or sentenced under Section 349 may appeal to the Court of Sessions in terms of Section 408 of the Code whilst the proviso subsections (b) and (c) of Section 408 of the Code are clearly mentioned that in any case if Assistant Sessions Judge (excluding Judicial Magistrate) passes any sentence of imprisonment for a term exceeding four years, the appeal of accused who has been convicted at such trial shall lie to the High Court. The appeal prior to the amendment under the said provision of Criminal Procedure Code, 1898 was competent before the High Court against the judgment passed by a Magistrate Section 30, wherein sentence of imprisonment for a term exceeding four years was awarded to the accused. The words "or a Magistrate specially empowered under Section 30", were omitted by Law Reforms Ordinance (XII of 1972). Nevertheless, after the amendment under Section 408 of the Code in a case where sentence of imprisonment exceeding 04 years is passed by a Magistrate empowered under Section 30, the appeal would lie before the Court of Sessions and not before the High Court as held in various reported cases.

2. Since the judgment of conviction of Applicant has not been passed by an Assistant Sessions Judge, the same has been passed by Magistrate empowered under Section 30 and that too not exceeding 04 years' sentence, therefore, the Applicant/Convict has rightly preferred Criminal Appeal under section 408 of the Code before the Court of Sessions. Conversely, after dismissal of Appeal preferred under section 408, the Applicant has again impugned the Judgment of Appellate Court/ Session Courts before the High Court by filing Appeal under section 410 of the Code although it has been converted into Criminal Revision under section 439 but for the sake of clarity we have decided to elaborate the concept. Section 410 of the Code provides:

"410. Appeal from sentence of Court of Session: Any person convicted on a trial held by a Sessions Judge, or an Additional Sessions Judge, may appeal to the High Court."

An appeal against conviction before the High Court can only be instituted in the manner provided under Section 408 (b) and (c) or 410 of the Code. The former enables against the Judgment of Magistrate with specific classification and later homologated statutory right when the Court of Sessions held a regular trial and passes a Judgment of Conviction. Thus the present appeal unfortunately repeats some of the obsolete stipulation. If somebody has exhausted a remedy of Appeal under section 408 of the Court before the Court of Sessions, the law does not permit second appeal under section 410 against the Judgment of Conviction passed by Sessions Court being the Appellate Court. The provision of Code gives distinct authoritative command whilst dealing with appeal or revision towards jurisdiction sine non quo sentencing to adjudicate the cases and the extent of power to issue order and legal decision. Unlike the Civil laws, the legislative framework of the Country on criminal side does not provide the theoretical existence of second appeal by invoking the provision of section 410 of the code before the High Court except to invoke the remedy of Revision under section 439 of the Code in case someone is aggrieved or frustrated with any Judgment of Conviction passed by the Sessions Court in its Appellate jurisdiction under section 408 of the Code. Understandingly, the appeal before the High Court against Appellate Court Judgment of Conviction would have been failed being jurisdictional error and contravention of Section 404 of the Code.

1. Now turning towards another extricate law point about "appeal in plead guilty cases". The Code has eminently provided a barricade by insertion of Section 412 for filing appeal where an accused person has put himself defenseless against the mercy of Court. From a reading of Sections 410 and 412 of Code, it is clear like a blue sky that the legislature has conceived that appellate remedy is provided by that provision, which deals with appeal from conviction. However, a bar is engrafted by the legislature Section 412 of Code in certain cases where the Accused/Applicant is guilty, it is mandated under section 412 of Code that:

2025 M L D 1033

[Sindh]

Before Muhammad Jaffer Raza, J

Abdul Khalid Saleem---Appellant

Versus

Imran Hyder---Respondent

IInd Appeal No. 245 of 2024, decided on 26th March, 2025.

(a) Malicious prosecution---

---Pre-requisites---Remedy for wrongful implication through false FIRs---Suit for damages---Frivolous litigation discouraged---Award of damages justified ---Un-crossed examination in chief ---No evidentiary value---A suit for damages for malicious prosecution was filed by the respondent against the petitioner which emanated from FIR No.133/2018 lodged under Ss.420/448/506-B, P.P.C.---Suit was decreed for Rs.12 million---Appeal against the decision of Trial Court was dismissed---The legal point for determination in the whole proceedings was as to "whether the test for malicious prosecution was correctly applied by the courts below" ---Held: The Supreme Court has time and again disparaged the tendency of frivolous litigation---Lodging of false FIRs has unfortunately become a norm which can only be curbed by awarding damages in favour of the individual who was wronged---Admittedly an FIR No. 133/2018 was initiated by the appellant under Ss.420/448/506-B, P.P.C.---It was also admitted that the prosecution ended in the favour of respondent---It was evident from perusal of the judgment of the Trial Court in the criminal case that the Trial Court specifically adjudicated that it was a "case of no evidence" and no evidence had been given by the appellant to connect the respondent with the alleged offence---It was also evident from the examination and perusal of the record that the appellant effected appearance in the suit, filed written statement and also filed his affidavit-in-evidence, however, the appellant despite being given repeated chances failed to appear for his deposition and only restricted himself to the cross-examination of the respondent---The argument of the counsel that the appellant was condemned unheard, was unwarranted for the reason that the said appellant participated in the proceedings and subsequently even cross-examined the respondent---The examination in chief filed by the appellant, in the absence of him being subjected to the test of cross-examination, was rightly not considered by the Trial Court and therefore not taken into adjudication---No substantial error or defect could be pointed out in the impugned judgment---The appeal was dismissed, in circumstances.

Abdul Khameed v. Muhammad Shabbir PLD 2021 Islamabad 405 ref.

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

---S.100---Second Appeal, filing of---Scope---Interference in concurrent findings under S.100, C.P.C.---Re-appraisal of evidence under Second Appeal---Preference to be given to findings of Appellate Court over findings of Trial Court ---Right to file second appeal can be set into motion only when the decision is contrary to law; fails to determine some material issue of law, or there is a substantial error or defect in the procedure provided by the Code or law---In case of inconsistency between findings of Trial Court and Appellate Court the findings of latter must be given preference in the absence of any cogent reason to the contrary---Concurrent findings cannot be interfered with under S.100, C.P.C. unless the lower courts have misread the evidence on record, or may have ignored a material piece of evidence on record through perverse appreciation of evidence---Moreover, re-appraisal of evidence on record by the second Appellate Court is not permissible under S.100, C.P.C.

Bahar Shah v. Mansoor Ahmed 2022 SCMR 284 and Faqir Syed Anwaruddin v. Syed Raza Haider and others PLD 2025 SC 31 rel.

Kulsoom Khan for Appellant.

Abdul Baqi Lone and Sannia Khalique for Respondent.

Date of hearing: 26th March, 2025.

Judgment

Muhammad Jaffer Raza, J.---The instant IInd Appeal has been filed against the Judgment dated 23.05.2024 ("Impugned Judgment") passed by the Appellate Court in Civil Appeal No. 50/2024 wherein the said appeal was dismissed after modification of Judgment and Decree dated 20.01.2024 in Suit No.944/2020.

1. Brief facts of the case are that Suit No. 944/2020 was filed for the following relief: -

"It is accordingly prayed in the interest of justice, equity and good conscience that this Honourable Court may be pleased to decree the above suit of plaintiff for recovery of Rs.12 Million as damages for malicious prosecution in favour of the plaintiff and against the defendant."

1. The suit was filed for damages for malicious prosecution emanating from FIR No.133/2018 lodged at P.S. Clifton, Karachi under Sections 420/448/506-B, P.P.C. Thereafter, the learned trial Court passed the Judgment and Decree dated 20.01.2024 decreeing the suit of the Respondent as prayed for Rs.12 million. Thereafter, First Appeal was filed against the said judgment bearing No. 50/2024 and the same was dismissed vide Impugned Judgment dated 23.05.2024.

2. Learned counsel for the Appellant states that both the judgments are legally unsound and are liable to be set aside in Second Appeal. He has argued that the suit for malicious prosecution has been filed with mala fide intent by the Respondent and the trial Court Judgment decreeing the suit as well as Judgment of the Appellate Court modifying the Judgment and decree are liable to be set aside. He has further argued that dispute was primarily of a civil nature and even the reduction of damages to Rs.5 million by the Appellate Court is unwarranted. Further he has argued that test of malicious prosecution as laid down in the judgment of the supreme reported as Muhammad Yousuf v. Abdul Qayyum1(sic) and Subedar (Retd.) Fazale Rahim v. Rab Nawaz2 has not been made out by the Respondent and the suit was liable to be dismissed with exemplary cost. Learned counsel relied upon the following judgments: -

i. Rasheeda Begum v. Rauf Subhani3

ii. Asghar Ali v. Muhammad Asghar4

iii. Fida Hussain Warraich v. Syed Zarfan Hussain Shah5

iv. Abdul Rashid v. The State Bank of Pakistan6

v. Muhammad Nawab Khan v. Bashir Sher7

1. Conversely, learned counsel for the Respondent has argued that test of malicious prosecution has correctly been laid down in paragraph number 19 of the Judgment of the trial court as follows: -

"19. Though, the claim of plaintiff remained un-rebutted failed to controvert the same through his evidence yet in order to prove the claim of malicious prosecution, the heavy burden lies upon the shoulders of the plaintiff. In order to maintain suit for malicious prosecution, the Superior Courts have set certain guiding and mandatory ingredients. Following are the elements of tests for malicious prosecution.

1. ii. That the plaintiff was prosecuted by the defendant; That the prosecution ended in plaintiff's favour;

iii. That the defendant acted without reasonable and probable cause;

iv. That the defendant was actuated by malice:

v. That the proceedings had interfered with plaintiffs liberty and has also affected their reputation, and

vi. That the plaintiff had suffered damages.

1. In the light of above set principles now it is to be seen whether the case of the plaintiff comes within the above parameters. The record transpired that defendant lodged FIR No. 133/2018 under sections 420/448/506-B, P.P.C. against the plaintiff. The plaintiff was arrested and subsequently released on bail vide order dated 11-06-2018. The plaintiff then faced a protracted trial before the Judicial Magistrate-XXII, Karachi South. After framing of charge, the prosecution examined 06 witnesses including complainant of the case i.e. defendant Abdul Khalique. Subsequently, after statement of accused/plaintiff and hearing of parties, the trial Court acquitted the plaintiff under section 245(i) Cr. P.C vide judgment dated 02-12-2019. In the order of acquittal certain observations were recorded and it is relevant to reproduce the same which are as under:-

'It is clear from the above that the prosecution has failed to adduce evidence against the present accused as alleged. This is case of no evidence. In criminal trial the burden to prove the charge is always lies on the prosecution to prove the case beyond any shadow of doubt, but prosecution has failed to prove its case against the present accused. Point Nos. 1 and 2 is consequently answered is negative.'

Point No. 03.

In the light of above discussion, keeping in view the facts and circumstances, the accused person is acquitted from the case/charge under section 245(i) Cr.P.C) as no evidence has come on record to connect him with the offence. Accused namely Imran Hyder son of Meer Muhammad Khan is present on bail, his bail bond stands cancelled and surety is discharged from his liability.' "

1. It was also argued by learned counsel that the judgment of the trial Court is legally sound and the Respondent remained incarcerated for over five (05) days due to lodging of false FIR against the Respondent. He has further stated that FIR was lodged on 05.06.2018 and the Respondent was acquitted of the charge in criminal case No.2500/2018 on 02.12.2019, after having faced the rigors of prosecution for approximately eighteen months. Thereafter, an acquittal Appeal No. 31/2021 was filed which was also dismissed. He has further argued that grounds taken by the Appellant in the instant appeal were not taken earlier in First Appeal No. 50/2024 and in this regard has referred to the memo. of appeal which was filed before the learned Appellate Court. He has contended that the circumstances of the Appellant and his financial limitations to comply with the judgment and decree of the Court cannot be a ground for reversal of the Impugned Judgment. He has lastly argued that there are concurrent findings of the Courts below and the scope of Section 100, C.P.C. is limited. The Court, it was argued, can only set aside concurrent findings in very exceptional circumstances, which are absent in the present case.

2. The points for determination as required under Order XLI Rule 31 are set out as follows: -

i. Whether the test for malicious prosecution was correctly applied by the courts below?

ii. Whether the Impugned Judgment suffers from substantial error or defect?

1. Both the points are intertwined and will be dealt with collectively.

2. I have heard learned counsel for the parties and perused the record. It is evident from perusal of the record that admittedly an FIR No. 133/2018 was initiated by the Appellant under Sections 420/448/506-B, P.P.C. It is also admitted that the prosecution ended in the favour of Respondent. The relevant excerpt of the acquittal order passed by the trial Court has already been reproduced above as part of the judgement passed in the civil suit.

3. It is evident from perusal of the judgment of the trial Court in the criminal case, that the learned trial Court specifically adjudicated that it was a "case of no evidence" and no evidence has been given by the Appellant to connect the Respondent with the alleged offence. It is also evident from the examination and perusal of the record that the Appellant effected appearance in the suit, filed written statement and also filed his affidavit-in-evidence, however, the Appellant despite being given repeated chances failed to appear for his deposition and only restricted himself to the cross-examination of the Respondent. The argument of the learned counsel that the Appellant was condemned unheard, are unwarranted for the reason that the said Appellant participated in the proceedings and subsequently even cross-examined the Respondent. The examination in chief filed by the Appellant, in the absence of him being subjected to the test of cross-examination, was correctly not considered by the trial Court and therefore not taken into adjudication.

4. The Hon'ble Supreme Court has time and again disparaged the tendency of frivolous litigation. Lodging of false FIRs has unfortunately become a norm which can only be curbed by awarding damages in favour of the individual who was wronged. This tendency was observed by the Islamabad High Court in the case of Abdul Khameed v. Muhammad Shabbir8 in the following words:-

"14. The rational for conferring equitable jurisdiction upon courts is rooted in the maxim "Ubi jus, ibi remedium" (where there is a right, there is a remedy). As is evident from the principles settled in relation to malicious prosecution damages are imposed on the one who abuses the process of law and to produce consequences for another and settle past scores. Subjecting a person to malicious prosecution can interfere with the right to liberty guaranteed under Article 9, the right to dignity under Article 14 and the right to be treated in accordance with law guaranteed under Article 4 of the Constitution. Such prosecution inflicts financial hardship, litigation cost, mental anguish as well as loss of reputation on the person who is on its receiving ends having been falsely implicated in a matter.

1. In any just society such loss cannot be allowed to lie where it falls. A person who is the immediate cause of inflicting such loss and hardship on a fellow citizen ought to be held accountable for his actions. While the plaintiffs in a suit for malicious prosecution cannot recover on the basis of humiliation suffered at the hands of police or prison authorities or inmates, but he has a right to be compensated by the person whose false accusation resulted in him being incarcerated and made him suffer the debasing experience that comes along. The judgments mentioned above have held that even where no damages are quantified by the plaintiff a court has discretionary jurisdiction to grant damages for loss of liberty, dignity and mental anguish that is reasonably proportionate to what the plaintiff can be presumed to have suffered.

2. There can be no objective standards for estimating such injuries but an inference can be drawn that someone who has been subjected to malicious prosecution has suffered loss of time, litigation expenses, mental suffering due to being subjected to legal challenge that can produce penal consequences for him and in the case of being arrested and put behind bars, loss of his right to liberty and dignity and consequent reputational harm. The superior courts have upheld imposition of damages in case of malicious prosecution on the basis the rule of thumb which aims to quantify damages such that they are reasonably proportionate to the loss suffered.

3. The loss of a person's liberty and dignity cannot be measured in money terms. But our Constitution - in fact all human rights charters - guarantee such rights. The Constitution has established the judicature and mandated it to act as a guardian of fundamental rights. And it is an obligation of the courts to ensure that irrespective of a person's station in the society and prevalent social and economic inequality, the principle of legal equality between citizens is upheld and no one is allowed to wield the law as a weapon to settle scores with another by abusing legal processes. The courts of law therefore cannot be nonchalant when seized of a matter involving malicious prosecution of one citizen at the hands of another." (Emphasis added)

4. It is trite law that right to file Second Appeal provided under section 100 of C.P.C., can be set into motion only when the decision is contrary to law; fails to determine some material issue of law, and substantial error or defect in the procedure provided by the Code or law. The principles governing the scope of Section 100, C.P.C. have been expounded by the Honourable Supreme Court in the case of Bahar Shah v. Mansoor Ahmed9 in the following words: -

"10. Now we would like to pay attention to the niceties of a right to file Second Appeal provided under section 100 of C.P.C, which can be set into motion only when the decision is contrary to law; failure to determine some material issue of law, and substantial error or defect in the procedure provided by the Code or law. In the case of Madan Gopal v. Maran Bepari (PLD 1969 SC 617), this Court held that if the finding of fact reached by the first Appellate Court is at variance with that of Trial Court, such a finding by the lower Appellate Court will be immune from interference in second appeal only if it is found to be substantiated by evidence on the record and is supported by logical reasoning, duly taking note of the reasons adduced by the first Appellate Court. In another case reported as Amjad Ikram v. Mst. Asiya Kausar (2015 SCMR 1), this Court held that in case of inconsistency between the trial Court and the Appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary.

1. The first Appellate Court thoroughly evaluated and mull over the evidence adduced by the parties and reached to a just and proper conclusion that the appellants failed to prove and justify their defence pleas and judgment of Trial Court was not based on correct exposition of law and facts, whereas the learned High Court in second appeal has also gauged and assessed the overall evidence perfectly and rightly maintained the judgment of first Appellate Court."

2. More recently the Honourable Supreme Court in the case of Faqir Syed Anwaruddin v. Syed Raza Haider and others10 held as under:-

"It is settled law that concurrent findings are not interfered with under section 100 of the C.P.C. unless the lower courts have misread the evidence on record, or may have ignored a material piece of evidence on record through perverse appreciation of evidence. It is also settled law that reappraisal of evidence on record by the second appellate court is not permissible while exercising jurisdiction under section 100 of the C.P.C. The High Court had rightly dismissed the regular second appeals filed by the defendants on the touchstone of the aforementioned principles."

2025 M L D 1066

[Sindh (Sukkur Bench)]

Before Muhammad Saleem Jessar, J

Abdar Khan---Applicant

Versus

Shahid and others---Respondents

Civil Revision Application No. S-110 of 2019, decided on 3rd March, 2025.

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

----Ss.8 & 42 ---Suit for declaration and possession---Non-production of original title documents---Fatal to claim of grant---Allotment of land to a person while such land already existing in the name of another person---Legality---By no stretch of imagination an immoveable property could be allotted to any person while same still existed in name of some other person in the official record---Brief facts were that the petitioner/plaintiff filed a suit for declaration and possession of land along with mesne profits claiming that the land, originally owned by government, was granted to him by the barrage department in 1984 under the land grant policy, with relevant documents such as A-Form and Qabooliyat issued in his favour, whereas, the respondent/defendant denied petitioner's claim and asserted that the land had already been granted to his father in 1979-1980, supported by original title documents---The Trial Court dismissed the suit, and the appellate court upheld the Trial Court's decision, where after, the petitioner/plaintiff filed present civil revision under S.115 C.P.C.---Held: During the course of evidence the petitioner/plaintiff could not produce original order of grant in respect of the suit land issued by the barrage department in 1984---Perusal of official record revealed that the land in question was already granted to father of respondent/defendant No.1 which was not cancelled, therefore, it was clear that the said grant made in favor of father of the respondent/defendant No.1 was still intact when the suit land was allegedly granted to the petitioner/plaintiff---The original order of grant in favor of petitioner was never brought on record---On the other hand, respondent/defendant No.1 produced original title documents---In this view of the matter it was apparent that the grant made in favor of respondent/defendant's father was prior to the alleged grant in favor of petitioner/plaintiff---The claim of the applicant / plaintiff over subject property related to the year 1984 i.e. subsequent to the grant of land in favour of father of respondent/defendant No.1 in the year 1979-1980, thus, the same was apparently unlawful---By no stretch of imagination an immoveable property could be allotted and / or granted to any person while the same still existed in the name of some other person in the relevant record---Although original order of grant was not produced by the petitioner/plaintiff, even then if it was presumed that the land was granted by the concerned department in favour of the applicant / plaintiff in the year 1984, the same was not in consonance with the settled law and by such grant the respondent/defendant No.1 could not be deprived of his legitimate right as the grant made in favour of his father was still intact and effective when the alleged grant of land was made in favour of the petitioner/plaintiff---Civil revision petition was dismissed, in circumstances.

Muhammad Feroze and others v. Muhammad Jamaat Ali 2006 SCMR 1304 ref.

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

----Ss.100 & 115---Remedy against the judgment of First Appellate Court---Second Appeal---Civil revision petition, maintainability of---Where Second Appeal under S.100, C.P.C. lies to the High Court, civil revision petition shall not be maintainable against the judgment passed by the First Appellate Court.

Sheikh Faqir Muhammad v. Mohammad Din 1993 SCMR 1055 rel.

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

----S.115---Revisional jurisdiction of the High Court---Concurrent findings---Scope---Normally the High Court in exercise of its revisional jurisdiction is not supposed to interfere with the concurrent findings recorded by the courts below, unless there are exceptional circumstances to do so.

Haji Muhammad Yunis (Deceased) through legal heirs and another v. Mst. Farukh Sultan and others 2022 SCMR 1282 and Muhammad Feroze and others v. Muhammad Jamaat Ali 2006 SCMR 1304 rel.

Abdul Baqi Jan Kakar for Applicant.

Hafiz Tanveer Ahmed for Respondent No. 1.

Agha Athar Hussain Pathan, Addl. Advocate General Sindh for Respondents Nos. 2 to 6.

Date of hearing: 27th January,2025.

Judgment

Muhammad Saleem Jessar, J.---Through this Civil Revision Application filed under Section 115 of Civil Procedure Code, the applicant Abdar Khan has challenged the Judgment and Decree dated 02.05.2019 passed by IInd Additional District Judge, Naushehro Feroz, in Civil Appeal No.118/2019 (Re: Abdar Khan v. Shahid and others) whereby he maintained the judgment and decree dated 10.04.2018 passed by IInd Senior Civil Judge, Naushehro Feroz in old FC Suit No.228/2015 and New F.C. Suit No.198 of 2016.

1. Brief facts giving rise to filing of instant Civil Revision Application are; that applicant Abdar Khan filed abovesaid civil suit in the Court of IInd Senior Civil Judge, Naushehro Feroz for Declaration, Possession, Mesne Profits and Permanent Injunction, alleging therein that the disputed agricultural land admeasuring 2-00 acres, situated in Mohag of Survey No.340 of Deh Tharushah, originally belonged to Government, thereafter, the same was granted to the applicant / plaintiff by the Barrage Department being Muhagedar on fully paid basis according to land grant policy and such A-From, Qabooliyat and other documents were issued in his favour by the Barrage Department on 29.4.1984. After grant of the suit land, the applicant / plaintiff approached the then Executive District Officer, Naushahro Feroze for confirmation of said grant, which was accordingly confirmed vide order dated 27.11.2006 and the plaintiff become lawful owner of suit land and since then he was in possession of the land and beside was cultivating and enjoying its produce. It was further stated that in the second week of October, 2014 defendant No.1 forcibly occupied the suit land illegally with mala fide intention. However, some other persons namely, Azizullah and others filed F.C. Suit No.153/2014 against him and they in collusion with each other with mala fide intention made attempt to usurp the property of the plaintiff. However, when the plaintiffs in aforesaid suit came to know that the suit property had already been granted in favour of applicant / plaintiff by Barrage Department, they withdrew their suit on 16.10.2014. Thereafter, the applicant / plaintiff approached several times to the Revenue Authorities for mutation of record of rights in his name, but they always kept him on false hopes and lastly refused to do so, as such he filed the abovesaid suit.

2. After admission of the suit, the defendants were served and defendants Nos.1 and 2 filed their respective written statements, while official defendants Nos.3 to 6 adopted the same written statement as filed by official defendant No.2.

3. Defendant No.1 in his written statement stated that claim of the plaintiff is false and that, in fact, he is the lawful owner of the suit property on the basis of title documents issued by the competent authority in favour of his father Mohammad Usman. He further asserted that the documents relied upon by the plaintiff had been arranged by him, thus the same have no binding effect upon the defendant. He further stated that the plaintiff has never remained in possession of suit property and he (defendant No.1) is in lawful possession thereof since long and the claim of possession of the plaintiff is false. He lastly stated that the suit of the plaintiff is without cause of action and the same is not maintainable under the law and is liable to be dismissed.

4. Official defendant No.2 in his written statement stated that in the report submitted by concerned Supervising Tapedar/Tapedar of the beat, has stated that as per entry No.55 of VF-VII-A an area of 1-00 acre out of S.No.340 of Deh Tharushah was entered in the name of Abdar son of Abdul Jabbar (share 28 paisa) on the basis of registered sale deed and the Muhaga of S.No.340 has not been entered in the record of rights on the basis of A-Form in the name of any person by Barrage Mukhtiarkar. He further stated that the dispute over the said plot is in between two private parties in which the government interest is not involved.

5. After recoding evidence of the parties and hearing their advocates, the suit was decreed by the trial court vide judgment and decree dated 05.4.2017 which were assailed by defendant No.1 Shahid by preferring Civil Appeal No.57/2017 in the Court of District Judge, Naushahro Feroze. Consequently, the appeal was allowed, Judgment and Decree passed by trial court were set-aside and the case was remanded to the trial court with direction to frame the following additional issue, lead evidence on that issue and decide the matter afresh.

"Whether defendant No.1 Shahid is lawful owner of the suit land on the basis of documents of his father Muhammad Usman?"

1. The trial court, in compliance with above direction framed above said additional issue. Plaintiff Abdar Khan adduced his evidence on the additional issue and thereafter counsel for the plaintiff closed plaintiff's side. However, defendant No.1 did not adduce any evidence on the additional issue but his counsel filed statement Ex.78 thereby adopting the same evidence already recorded by trial court and closed defendant's side.

2. After hearing arguments advanced by learned counsel for the parties, as detailed above, the trial Court dismissed the suit and such dismissal was challenged by the applicant / plaintiff by filing Civil Appeal which was also dismissed vide judgment dated 02.05.2019. Hence the applicant has filed instant Civil Revision Application impugning the aforesaid judgment and decree passed by the Appellate Court.

3. I have heard learned counsel for the parties and have perused the material made available before me on the record.

4. Learned counsel for the applicant submitted that the land in question was granted to the applicant initially in the year 1984; however, due to violence on account of assassination of Muhtarma Benazir Bhutto on 27.12.2007, entire record was set on fire; therefore the defendant / respondent No.1 by taking advantage of said incident had occupied subject land by dispossessing the plaintiff/applicant. According to him, the courts below have not taken into consideration this aspect of the case. He further submitted that the respondents have not produced any record/material to substantiate their claim over the suit land. He further submitted that judgments of the Courts below suffer from misreading of the evidence. He, therefore, prayed for allowing instant civil revision application and setting aside the judgments passed by the courts below.

5. Learned counsel for respondent No.1 opposed the revision application and submitted that initially the suit filed by the applicant was decreed; however, in appeal the judgment was set aside and case was remanded to the trial court for framing additional issue mentioned in said judgment and deciding the matter afresh. The trial court after recording evidence on additional issue and hearing learned advocates for the parties, dismissed the suit. Such dismissal was assailed by the applicant/plaintiff by preferring civil appeal which was also dismissed vide judgment dated 10.04.2018. The applicant/plaintiff has impugned said judgment of the appellate Court by way of Civil Revision Application. According to him, during evidence it has been established that claim of the applicant pertained to the year 1984, whereas, prior to that the father of respondent No.1 namely, Muhammad Usman, was granted suit land in the year 1979-1980 and, according to him, while said grant was intact having neither been cancelled nor such order having been recalled by the concerned department, the applicant could not be granted subject property and such grant, if any, was unlawful and illegal.

6. Learned Assistant Advocate General Sindh appearing for official respondents adopted the arguments advanced by learned counsel for respondent No.1 and submitted that there is no illegality or infirmity in the impugned judgments which may warrant interference by this court. He also raised question about maintaining second appeal before the first appellate court.

7. At the very outset, it may be observed that instant Civil Revision Application seems to be non-maintainable in view of the fact that where second appeal under Section 100 C.P.C. lies to the High Court, civil revision application shall not be maintainable against the judgment passed by the First Appellate Court. For this proposition I am fortified by a judgment of Honourable Supreme Court passed in the case of Sheikh Faqir Muhammad v. Mohammad Din, reported in 1993 SCMR 1055, wherein it was held as under:

"Position thus crystallizes that the respondent had the right to file a second appeal and no revision lay under section 115, C.P.C. As held in PLD 1970 SC 506 a revision does not lie where the order is appealable with the District Court. Even in cases where second appeal lies to the High Court revision will not be maintainable against that judgment and decree.

It is contended that the revision application could have been treated as a second appeal. In that event as contended by the learned counsel for the appellant the period of limitation provided for filing a second appeal having expired the respondent would be required to make an application for condonation of delay. This exercise would require enquiry for determination of facts whether sufficient cause for condoning the delay has been made out. Such determination can hardly be made here."

1. Besides above, it is also noteworthy to point out at this juncture that normally this Court in exercise of its revisional jurisdiction is not supposed to interfere with the concurrent findings recorded by the Courts below, unless there are exceptional circumstances to do so. In this context, reference may be made to the case of Haji Muhammad Yunis (Deceased) through legal heirs and another v. Mst. Farukh Sultan and others, reported in 2022 SCMR 1282, wherein it was held by Honourable Supreme Court as under:

"The High Court did not have, in its revisional jurisdiction, the legal mandate to reverse the concurrent findings of the trial and appellate courts, without first addressing the said reasoning of the trial and appellate courts. Accordingly, the judgment of the High Court warrants correction."

In another case reported as Muhammad Feroze and others v. Muhammad Jamaat Ali (2006 SCMR 1304), the Apex Court held as under:

"12. It is well-settled that concurrent findings of fact by two Courts below cannot be disturbed by High Court in second civil appeal, muchless in exercise of the revisional jurisdiction under section 1l5, C.P.C. unless the two Courts below, while recording the findings of fact have exercised jurisdiction not vested in them or failed to exercise jurisdiction so conferred. Scope of interference with concurrent findings of fact by High Court in exercise of revisional jurisdiction is very limited. While examining legality of judgment and decree in exercise of its powers under section 115, C.P.C., High Court cannot upset finding of fact, however, erroneous such finding is, on reappraisal of evidence, and take a different view of evidence."

1. In view of above legal position, instant Civil Revision Applicant is apparently not maintainable and is liable to be dismissed on this score alone. However, even on merits the applicant / plaintiff does not have a good case.

2. From perusal of record it reveals that claim of the plaintiff is in respect of 2-00 acres of land situated at Muhag of Survey No. 340 of Deh Tharushah allegedly having been granted to him by the Barrage Department in the year 1984. However, during course of evidence the plaintiff could not produce original order of grant in respect of suit land issued by the Barrage Department in his favour in the year 1984. The official witness in his evidence deposed that he tried to verify from the relevant record about the suit property but the same was not available as the original record was burnt on 27th December 2007 at the time of assassination of Muhtrama Benazir Bhutto. From perusal of record it appears that the plaintiff produced only a copy of order passed by Executive District Officer Naushahro Feroze having been issued on the application moved by him, wherein it was stated that the suit land was granted to the applicant. However, from perusal of record it also appears that prior to alleged grant of suit land in favour of the plaintiff, an area of 2-35 acres out of same Survey No.340 in Muhag of Deh Tharushah was granted in the name of one Muhammad Usman viz. father of defendant No.1. It is also significant to point out here that before granting suit land to the plaintiff, the aforesaid grant in favour of Muhammad Usman was neither cancelled nor order in respect of said grant was recalled by the Barrage Department. In the circumstances, it is clear that said grant made in favour of father of defendant No.1 was still intact when the suit land was allegedly granted in favour of the plaintiff without cancelling earlier grant in favour of Muhammad Usman. The original order of alleged grant in favour of the plaintiff has also not been brought on record by him and the original record is also not available in the office of Barrage Mukhtiarkar.

2025 M L D 1080

[Sindh (Sukkur Bench)]

Before Riazat Ali Sahar, J

Irshad Ali---Appellant

Versus

The State---Respondent

Criminal Appeal No. S-02 of 2023, decided on 6th February, 2025.

Penal Code (XLV of 1860)---

----S. 409---Prevention of Corruption Act (II of 1947), S. 5(2)---Constitution of Pakistan, Art. 10-A---Criminal breach of trust by public servant, criminal misconduct---Appreciation of evidence---Fair and meaningful opportunity to cross-examine witnesses not provided---Fair trial and due process---De-novo trial---Appellant was charged for committing misappropriation of 4,958 bags of wheat and causing loss of Rs. 6,259,475/= to the Government exchequer---Trial Court recorded the evidence of Circle Officer/complainant, however, the cross-examination of the said witness was initially marked as "reserved."---Subsequently, an Advocate cross-examined the said witness, however, his wakalatnama was not found in the entire case file---Furthermore, the Investigating Officer was cross-examined by another counsel and only a single question was put to him---Similar situation was observed in the case of the third prosecution witness, which demonstrably indicated that the appellant was not afforded a fair and meaningful opportunity to cross-examine the witnesses---Such denial of a fundamental right constituted a manifest violation of Art. 10-A of the Constitution of Pakistan, which guaranteed the right to a fair trial and due process---Evidence recorded under such circumstances holds no legal sanctity or evidentiary value, as a conviction could not safely be based on such defective proceedings, particularly where the credibility of the witnesses remained untested on the touchstone of cross-examination---Appeal was allowed by setting aside the impugned judgment and the case was remanded to the Trial Court for the purpose of conducting a "de novo" trial---High Court directed that the Trial Court shall recommence proceedings from the stage of recording evidence, including examination-in-chief and cross-examination of all three prosecution witnesses, that the Trial Court shall to ensure that the appellant was afforded a fair and meaningful opportunity engage a counsel of his own choice and cross-examination of the witnesses was to be conducted in the presence of the defence advocate---Order accordingly.

Rajab Ali v. The State 2019 MLD 1713; Tamour Shah v. The State 2001 P.Cr.LJ 1507; Abdul Ghafoor v. The State 2011 SCMR 23; Shafique Ahmed alias Shahjee v. The State PLD 2006 Karachi 377; Syed Waris Khan v. The State 2018 MLD 422; Raja Basharat Ali v. The State 1986 PCr.LJ 1558; Dr. Sher Afghan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813; Muhammad Uris v. The State 1990 MLD 1583 and Abdul Rashid Nasir and others v. The State 2009 SCMR 517 ref.

Abdul Ghafoor and others v. The State 2011 SCMR 23 rel.

A.R. Faruq Pirzada and Agha Faraz Khan for Appellant.

Khalil Ahmed Maitlo, Deputy Prosecutor General for the State.

Date of hearing: 6th February, 2025.

Judgment

Riazat Ali Sahar, J.---This order dispose off the Jail Appeal preferred by the appellant, Irshad Ali Kalhoro, challenging the impugned judgment dated 11-01-2023, rendered by the learned Special Judge, Anti-Corruption (Provincial), Sukkur Division at Sukkur, in Special Case No. 26 of 2010, arising out of Crime No. 04/2008, registered under Section 409, P.P.C. read with Section 5(2) of Act II of 1947 at Police Station, ACE Khairpur. By virtue of the impugned judgment, the appellant has been convicted under Section 5(2) of the Prevention of Corruption Act, 1947 (Act II of 1947) and sentenced to rigorous imprisonment (R.I.) for a term of five years, along with the imposition of a fine equivalent to the misappropriated government wheat, amounting to Rs.2,000,000/- (Twenty Lakh Rupees). In the event of default in the payment of the fine, the appellant shall undergo an additional imprisonment of one year.

Furthermore, the appellant has also been convicted under Section 409, P.P.C. and has been sentenced to rigorous imprisonment (R.I.) for four years. Additionally, a fine of Rs. 50,000/- (Fifty Thousand Rupees) has been imposed upon him, and in default of payment thereof, he shall suffer simple imprisonment (S.I.) for a period of three months. It is further directed that both sentences shall run concurrently, and the benefit of Section 382-B, Cr.P.C. shall be extended in favour of the appellant.

1. Precisely, the case of the prosecution is that Himath Ali Chandio, Circle Officer, Anti-Corruption Establishment, Khairpur, registered an FIR on behalf of the State with the approval of the competent authority, ACC-II, Khairpur, following a meeting convened on 04-03-2010, based on a written report submitted by the District Food Controller, Khairpur. The allegations levelled against the accused, Irshad Ali Kalhoro, who was serving as Food Supervisor and Incharge of the Wheat Procurement Centre, Fakirabad, pertain to the misappropriation of 4,958 bags of government wheat during the wheat crop season of 2006-2007. It is asserted that the accused, by misusing his official authority, caused a wrongful loss of Rs. 6,259,475/- to the government exchequer while securing an unlawful gain for himself. Consequently, the accused, Irshad Ali Kalhoro, is alleged to have committed the offence, and therefore, the FIR was duly lodged against him on behalf of the State.

2. The police after completing investigation submitted challan of the case and the learned trial Court after observing legal formalities framed the charge to which he pleaded not guilty and claimed trial.

3. To substantiate the charge, the prosecution examined the complainant, PW-1/Investigating Officer Himath Ali Chandio, at Ex.5, PW-2 Sikandar Ali Jalbani at Ex.6, and PW-3 Mohbat Khan Korai at Ex.7. During their examination, they produced the relevant documentary evidence in support of the case of the prosecution. Subsequently, the learned Assistant Prosecutor General (APG) closed the case of the prosecution. Upon the completion of the evidence of the prosecution, the learned trial Court recorded the statement of the appellant under Section 342, Cr.P.C., wherein he denied the allegations levelled against him and asserted his innocence.

4. The learned trial Court after hearing the arguments of learned APG, appellant and appraising the evidence passed impugned judgment.

5. At the very outset, the learned Counsel for the appellant contended that the impugned judgment, passed by the learned trial Court, is contrary to the norms of criminal administration of justice and is legally unsustainable. He asserted that the appellant was deprived of his valuable right to cross-examine the prosecution witnesses through his Counsel, which amounts to a serious violation of due process. On this ground, he prayed for the setting aside of the impugned judgment and the remand of the case to the trial Court to afford the appellant an opportunity to engage a Counsel of his own choice and to cross-examine the witnesses. The learned Counsel further argued that, as per the contents of the FIR, the case was registered on the written report of the District Food Controller, Khairpur (DFC). However, despite being a star witness, the said DFC was neither cited as a prosecution witness nor subjected to cross-examination during the trial. He contended that the non-examination of such a pivotal witness constitutes an inherent defect in the prosecution's case, which is legally unjustifiable. Additionally, he submitted that during the wheat season of 2006-2007, there were no outstanding arrears of the Food Department against the appellant. In this regard, a "No Dues Certificate" issued by the District Food Controller, Khairpur, was duly placed on record by the appellant along with his statement recorded under Section 342, Cr.P.C. before the trial Court. However, the learned trial Court failed to consider this crucial document while rendering the judgment. The learned Counsel also referred to the testimony of PW-03 Mohbat Khan, who categorically stated during the trial that no amount was outstanding against the appellant. Furthermore, during cross-examination, PW-03 explicitly deposed that neither any government wheat bag nor any cash was outstanding against the accused. In light of these material discrepancies, he contended that defective and unreliable evidence cannot be made the basis for conviction. Consequently, the learned Counsel submitted that it would be just and appropriate to remand the case to the trial Court with directions to conduct a "de novo" trial, commencing from the stage of recording evidence, including examination-in-chief and cross-examination of all witnesses. In support of his contentions, he placed reliance upon the cases reported as Rajab Ali v. The State (2019 MLD 1713), Tamour Shah v. The State (2001 PCr.LJ 1507), Abdul Ghafoor v. The State (2011 SCMR 23), Shafique Ahmed alias Shahjee v. The State (PLD 2006 Karachi 377), Syed Waris Khan v. The State (2018 MLD 422), Raja Basharat Ali v. The State (1986 PCr.LJ 1558), Dr. Sher Afghan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813), Muhammad Uris v. The State (1990 MLD 1583) and Abdul Rashid Nasir and others v. The State (2009 SCMR 517).

6. Learned Deputy Prosecutor General appearing on behalf of the States does not oppose the legal position.

7. Having heard the learned counsel and after perusing the record available before me, I proceed to determine the matter accordingly.

8. Upon a meticulous examination of the record, it is evident that the learned trial Court recorded the evidence of Circle Officer/complainant Himath Ali; however, the cross-examination of the said witness was initially marked as "reserved." Subsequently, one Mr. Aijaz Ahmed Naich, Advocate, cross-examined the said witness; however, his vakalatnama is not found in the entire case file. Furthermore, the Investigating Officer (I.O.) was cross-examined by another Counsel, and only a single question was put to him. A similar situation is observed in the case of the third prosecution witness, Muhbat Khan, which demonstrably indicates that the appellant was not afforded a fair and meaningful opportunity to cross-examine the witnesses. Such denial of a fundamental right constitutes a manifest violation of Article 10-A of the Constitution of Pakistan, which guarantees the right to a fair trial and due process.

2025 M L D 1096

[Sindh]

Before Zafar Ahmed Rajput and Ms. Tasneem Sultana, JJ

Ameer Jan alias Bablu---Appellant

Versus

The State---Respondent

Special Criminal Anti-Terrorism Appeal No. 128 of 2024, decided on 6th February, 2025.

Explosive Substances Act (VI of 1908)---

----Ss. 4 & 5---Sindh Arms Act (V of 2013), S. 23---Anti-Terrorism Act (XXVII of 1997), S. 7---Keeping explosive with intent to endanger life or property, possessing explosives under suspicious circumstances, possession of illicit weapons, act of terrorism---Appreciation of evidence---Sentence, modification of---Prosecution case was that three rifle grenades, two ball bombs and .30-bore pistol along with magazine loaded with three bullets were recovered from the possession of accused---In the instant case, it was a matter of record that three rifle grenades allegedly recovered from possession of the appellant were without launcher, hence the same were not capable of explosion causing an injury to any person or damage to any property to attract the definition of "explosive" provided under S.2 (f) of the Act of 1997---Moreover, it also could not produce a practical effect by explosion or pyrotechnic effect, being incomplete preassembled firearm ammunition and device in terms of "explosives" as defined under S.4 (1) of the Explosive Act, 1884---Hence, S.6 (2)(ee) of the Act of 1997, punishable under S.7(ff) ibid was not applicable to the facts of the case---Admitted position that in the instant case, the appellant had not done any act and/or had in his possession and under his control the alleged explosive substance with intent to cause an explosion of a nature likely to endanger life or to cause serious injury to property, to attract the provisions of S.4 of the Act of 1908---Alleged explosive substance hand grenades without launcher had no characteristic of exploding to endanger life or to cause serious injury to property etc---Since only the possession of the alleged hand grenades without launcher with the appellant had been established, the alleged act squarely fell within the ambit of S.5 of the Act of 1908, which carried punishment up to 14 years---Conviction and sentence recorded for the offence under S.7(ff) of the Act of 1997 was set aside, in circumstance---Since the appellant was not previously convicted of any offence, thus, he was given an opportunity for reformation---Therefore, the Court deemed it appropriate not to award him maximum punishment provided under S.5 of the Act of 1908 and awarded him sentence to suffer R.I. for three (3) years---However, conviction and sentence awarded to the appellant under S.23(1)(a) of the Act of 2013 by the Trial Court was maintained---Appeal was dismissed with said modification in sentences.

Raj Ali Wahid Kunwar and Abdul Qadir for Appellant.

Muhammad Iqbal Awan, Additional Prosecutor General for the State.

Date of hearing: 6th February, 2025.

Judgment

Zafar Ahmed Rajput, J.---This Special Criminal Anti-Terrorism Appeal is directed against the judgment dated 30.10.2024, passed by the learned Judge, Anti-Terrorism Court No. XVIII, Karachi in Special Cases Nos. 146 and 146-A of 2024, arising out of FIRs Nos. 88 and 89 of 2024, registered at P.S. CTD, Karachi under Section 4/5 of the Explosive Substances Act, 1908 ("Act of 1908") read with Section 7 of the Anti-Terrorism Act, 1997 ("Act of 1997") and section 23(1)(a) of Sindh Arms Act, 2013 ("Act of 2013"), whereby the appellant was convicted and sentenced, as under:-

i. For offence under sections 4/5 of the Act of 1908, he was sentenced to undergo R.I for 05 years and to pay fine of Rs.25000 - (Twenty-Five Thousand Only) and in default thereof, he shall further undergo for 01-month S.I.;

ii. For offence under section 7(ff) of the Act of 1997, he was sentenced to undergo R. I for 14 years and to pay fine of Rs.25000 - (Twenty-Five Thousand Only) and in default thereof, he shall further undergo for 01-month S.I.;

iii. For offence under section 23(1)(a) of the Act of 2013, he was sentenced to undergo RI for (03) years and to pay fine of Rs.10000 (Ten Thousand Only) and in default thereof, he shall further undergo for 01 month S.I.

All the sentences were ordered to run concurrently and the appellant was extended benefit of section 382-B, Cr. P.C for the period, which he had remained in jail as under trial prisoner.

1. It is case of the prosecution that, on 07.06.2024, complainant ASI Ali Faisal of CTD Investigation Garden-Karachi, was on searching of proclaimed offenders and target killers inside the city along with his subordinate staff. At 0100 hours, he reached Mirza Adam Khan Road, near Kashti Wali Masjid, Karachi, where he arrested the appellant on being found in possession and control of three Avan rifle grenades, out of which two grenades were of silver brown color with marking BM<-X31-/3144 and one of golden brown color bearing No. 766(33); two ball bombs wrapped with red tape and one rubbed number black color .30 bore pistol along with magazine loaded with three bullets. For that, he was booked in the aforementioned F.1.Rs.

2. At the trial, charge was framed against the appellant for the offences under section 6(2)(ee) of the Act of 1997, punishable under section 7(1)(ff) of the Act of 1997 read with sections 4/5 of the Act of 1908 and section 23(1)(a) of the Act of 2013 by the trial Court; to which, he pleaded not guilty. After recording evidence of the prosecution witnesses and statement of the appellant under section 342, Cr. P.C., the trial Court convicted the appellant and awarded him sentences as mentioned above, vide impugned judgment.

3. After arguing the appeal at some length; pointing out some minor discrepancies in investigation and depositions of P.Ws and conceding to the fact that the appellant had failed to produce evidence before the trial Court in support of his defence plea, contends that he does not press this appeal on merits; however, seeks modification and reduction of sentences awarded to the appellant keeping in view the fact that the trial Court, besides convicting the appellant for the offence under sections 5 of the Act of 1908 and 23(1)(a) of the Act of 2013, has also convicted him for offence under section 7(ff) of the Act of 1997 and section 4 of the Act of 1908, which provisions are not applicable under the circumstances of the case and at the most the guilt of the appellant falls under section 5 of the Act of 1908, which carries punishment with imprisonment for a term which may extend to fourteen years. He further contends that the appellant is not previously convicted of any offence; hence, he deserves leniency.

4. Learned Addl. Prosecutor General also concedes to the fact that under the circumstances of the case it is not the section 4 but section 5 of the Act of 1908, which attracts to the facts of the case and the guilt of the appellant, and section 7(ff) of the Act of 1997 also does not attract to the facts of the case.

5. We have heard the learned counsel for the appellant and learned Addl. Prosecutor General as well as perused the material available on the record.

6. Section 2 (f) of the Act of 1997 defines the term "explosives", as under:

"explosives" means any bomb, grenade, dynamite, or explosive substance capable of causing an injury to any person or damage to any property and includes any explosive substances defined in the Explosives Act, 1884.

Section 4 (1) of the Explosives Act, 1884 ("the Act of 1884") describes the term "explosives", as under:

(a) "explosives"---(a) means gunpowder, nitroglycerine, nitroglycol, gun cotton, dinitrotoluence, trinitro toluene, picric acid, dinitro-phenol, trinitro resorcinol (styphnic acid), cyclo trimethylence trinitramine, penta erythritol tetranitrate, tetryl, nitroguanidine, lead azide, lead styphynate, fulminate of mercury or any other metal, diazo dinitro phenol, coloured fires or any other substances whether a single chemical compound or a mixture of substances, whether solid or liquid or gaseous used or manufactured with a view to produce a practical effect by explosion or pyrotechnic effect; and

(b) includes,-

(i) chemical compounds, Compositions or mixture of which will produce, upon release of its potential energy, a sudden outburst of gases, thereby exerting high pressures on its surroundings. Explosives may be solid, liquid or gas, nitro compound or in the form of water gel or slurry;

(ii) fog signals, firework, fuses, rockets, precussion-caps, detonators, cartridges, ammunition of all descriptions and every adaptation or preparation of an explosives as defined in this clause; and

(iii) such other substance as the Federal Government may, by notification in the official Gazette, specify for the purposes of this subsection.

Section 2 of the Act of 1908 classifies the term "explosives substance", as under:

" In this Act the expression "explosive substance" shall be deemed to include any materials for making any explosive substance; also any apparatus, machine implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance; also any part of any such apparatus machine or implement." (Emphasis supplied)

1. It appears from the perusal of the aforementioned provisions of the Statutes that under section 2 (f) of the Act of 1997, the "explosives" should be capable of causing an injury to any person or damage to any property and includes any explosive substances defined in the Act of 1884. Section 4 (1) of the Act of 1884 includes in terms "explosives", various kinds/forms of solitary materials-solid, liquid and gaseous-; chemical compounds, compositions or mixture; and preassembled firearm ammunition and devices, which produce a practical effect by explosion or pyrotechnic effect. Section 2 of the Act of 1908 classifies term "explosives substance", include the materials for making any explosive substance; any apparatus, machine implement or material used, or intended to be used, or adapted for causing, or aiding in causing, any explosion in or with any explosive substance and any part of any such apparatus, machine or implement.

2. In the instant case, it is a matter of record that the three rifle grenades allegedly recovered from possession of the appellant were without launcher; hence, the same were not capable of explosion causing an injury to any person or damage to any property to attract the definition of "explosive" provided under section 2 (f) of the Act of 1997. It also cannot produce a practical effect by explosion or pyrotechnic effect being incomplete preassembled firearm ammunition and device in terms of "explosives" as defined under section 4 (1) of the Act of 1884. Hence, section 6 (2)(ee) of the Act of 1997, punishable under section 7(ff) ibid is not applicable to the facts of the case. However, being a part of an apparatus, machine or implement, it falls within the definition of "explosives substance", as explained under section 2 of the Act of 1908, which is punishable under sections 4 and 5 of the Act (ibid), which read as under:

4. Punishment for attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property. __ Any person who unlawfully and maliciously _

(a) does any act with intent to cause by an explosive substance, or conspires to cause by an explosive substance, an explosion in Pakistan of a nature likely to endanger life or to cause serious injury to property; or

(b) makes or has in his possession or under his control any explosive substance with intent by means thereof to endanger life, or cause serious injury to property in Pakistan, or to enable any other person by means thereof to endanger life or cause serious injury to property in Pakistan;

shall, whether any explosion does or does not take place and whether any injury to person or property has been actually caused or not, be punished with imprisonment for life or any shorter term which shall not be less than seven years.

5. Punishment for making or possessing explosives under suspicious circumstances._ Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his control for a lawful object, be punishable with imprisonment for a term which may extend to fourteen years.

2025 M L D 1115

[Sindh]

Before Muhammad Karim Khan Agha, J

Qasim---Petitioner

Versus

Dawood and 2 others---Respondents

C.P. No. S-1385 and M.A. No. 10116 of 2023, decided on 19th August, 2024.

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

----S.15(2)---Ejectment of tenant---Default in payment of rent---Denial of relation of landlord and tenant on the basis of an agreement to sell qua the demised premises---Admission of tenancy prior to execution of agreement to sell---Ejectment application filed by the landlord was allowed by the Rent Controllerand upon appeal preferred by the tenant the ejectment order was upheld by the Appellate Court---Held: Appellate Court rightly found that the petitioner was indeed the tenant of the property and relationship of landlord and tenant did exist between the parties and as per judgments of Supreme Court the execution of agreement to sell would not change the relationship of landlord and tenant until a decree for specific performance was obtained---Question of title could not be decided by the Rent Controller and no interest or even a charge could be created on the property in dispute on the basis of an agreement to sell---Tenant failed to point out any legal infirmity in the appellate judgment---Constitutional petition was dismissed, in circumstances.

Syed Imran Ahmed v. Bilal and others PLD 2009 SC 546 and Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320 rel.

Abdul Nabi for Petitioner.

Sheheryar Qazi and S. Arshad Hussain Naqvi, Addl. A.G. for the State.

Date of hearing: 19th August, 2024.

Order

Muhammad Karim Khan Agha, J.---The landlord Dawood moved Rent Case No.143 of 2019 in the Court of IIIrd Rent Controller (South at Karachi for return of his Property known as Dawood B.D. Compound situated at Plot No.2202/A (AK-24-3-S-50), Gali No.5, New Kumhar Wara near Gabol Park, Lyari Town, Karachi (the Property) on the basis of default in payment of rent by the tenant.

1. The main ground raised by the tenant who is the petitioner in this case that there was no relationship of landlord and tenant between the parties. The trial Court vide judgment dated 04.8.2023 rejected his arguments and through the impugned judgment allowed the ejectment application.

2. Being aggrieved and dissatisfied by the impugned judgment mentioned above the tenant filed an Appeal in the Court of Addl. District Judge-XII/ Model Civil Appellate Court Karachi-South, which in F.R.A. No.217/2023 vide judgment dated 21.11.2023 upheld the impugned judgment. Hence the appellant has moved this petition against the impugned judgment and appellate judgment.

3. As noted facts of the case are that the petitioner / appellant was the tenant of the Property as claimed by the landlord who was in default of rent. This led to the landlord filing an application for ejectment of the tenant / petitioner from the Property. Such ejectment was allowed by the impugned judgment and was maintained by the appellate judgment.

4. The main contention of the petitioner/appellant/tenant is that no relationship of landlord and tenant existed between him and the landlord and as such he could not have been ejected as a tenant based on a sale agreement.

5. Appellate judgment whilst addressing this point it held as under:-

"15. I have considered the arguments advanced by the learned Advocates for the Appellant. The findings and reasons recorded by the learned IIIrd Rent Controller Karachi South, qua relationship of landlord and tenant between Respondent No. 1 and Appellant and default in payment of rent and maintenance, has been juxtaposed with the evidence adduced by the Respondent No. 1 and Appellant and on careful analysis of evidence, I am of the view that Appellant has admitted his induction in the demised premises as Tenant in Para -2 of the written statement, however, has averred and deposed that he has purchased the demised premises through sale agreement dated 23.02.2018 in total sale consideration of Rs.20,00,000/= and after the purchase of the demised premises through sale agreement he became owner of the demised premises and was not liable to pay the rent to the Respondent No. 1. The stance and version taken by the Appellant qua termination of relationship of landlord and tenant on the basis of sale agreement, is not based on backing of law as agreement of sale is not a document of title/ownership rather it is a document to obtain another document from the seller. Suffice it to say that the sale agreement is not a title document but at the most grants a right to sue for such title as well as rights arising out of such sale agreement. More-over, in the context of claim of termination of relationship of landlord and tenant, it is trite law that where a person who has been inducted as a tenant in the demised premises and he/tenant claims that he has purchased the demised premises subsequently, then, such tenant has to vacate the demised premises first and obtain a decree of specific performance against the seller to entitle him to recover the possession of the demised premises. Scanning of the impugned judgment shows that this aspect has been considered and attended by the learned 1st Rent Controller Karachi South in Point No. 1 and in my considered view, the finding recorded by the learned 1st Rent Controller Karachi South are inconsonance with the judgment with the Hon'ble Apex Court. Guidance may be sought from the principles laid-down in the case of Syed Imran Ahmed v. Bilal and others [PLD 2009 SC 546] wherein it was held as under:

"5. It is principle too well established by now that a sale agreement did not itself create any interest even a charge on the property in dispute that unlike the law in England, the law in Pakistan did not recognize any distinction between the real and equitable estates, that a sale agreement did not confer any title on the person in whose favour such an agreement was executed and in fact it only granted him the right to sue for such a title and further that such an agreement did not affect the rights of any third party involved in the matter. It may be added that till such time that a person suing for ownership of a property obtains a decree for specific performance in his favour, such a person cannot be heard to deny the title of the landlord or to deprive the landlord of any benefits accruing to him or arising out of the property which is the subject matter of the litigation. Postponing the ejectment proceedings to await the final outcome of a suit for specific performance would be causing serious prejudice to a landlord and such a practice, if approved by this Court, would only give a license to un-scrupulous tenants to defeat the interests of the landlords who may be filing suits for specific performance only to delay the inevitable and to throw spanners in the wheels of law and justice."

1. In another case of Abdul Rasheed v. Maqbool Ahmed and others [2011 SCMR 320] it has been held as under:

2025 M L D 1122

[Sindh]

Before Muhammad Faisal Kamal Alam, J

Muhammad Shafi Nagori through legal heirs---Applicant

Versus

Muhammad Ayub and others---Respondents

Civil Revision Application No. 147 of 2022, decided on 6th January, 2025.

Limitation Act (IX of 1908---

----S.3 & First Sched., Art. 181---Constitution of Pakistan, Arts.23 & 24---Civil Procedure Code (V of 1908), S. 115---Execution application, filing of---Commencement of period of limitation---Determination---Executing Court dismissed the application under S. 3 of the Limitation Act, 1908, (Act) treating the execution application within time, whereas,the Appellate Court overturned the decision of the Executing Court---Validity---Civil revision was finally decided by the High Court on 22.02.2020; six months thereafter the Execution Application was filed and since the revisional proceeding was also covered by the principle of merger, hence, the Execution Application was within time and was not adversely affected by Art. 181 of the Act---Appellate Court did not appreciate the case law in overturning the decision of the Executing Court, thus, the impugned order was illegal and could not be sustained---Once the judgment and decree is given in favour of an individual, which has attained finality, in particular concerning his proprietary right, it cannot be eclipsed, except, when there is an express provision of substantial law, but that too requires liberal interpretation, so that the legitimate ownership right is safeguarded, because proprietary rights are governed and protected under Arts.23 & 24 of the Constitution and not merely by an ordinary statute---Order of the Appellate Court was set aside and that of the Executing Court was restored---Civil revision was allowed, in circumstance.

Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others 1992 SCMR 241 and Bakhtiar Ahmed v. Mst. Shamim Akhtar and others 2013 SCMR 5 rel.

Director General (Headquarters) Civil Works Organization, Rawalpindi through Authorized Officer v. Muhammad Afsar and others 2021 CLC 909; Ferozuddin and 11 others v. Mazhar Hussain Shah and 5 others PLD 2009 Kar. 397; Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153 and Mst. Noor Jehan and others v. Miss Shahnaz and 3 others PLD 2020 Sindh 652 ref.

Malik Waseem Iqbal for Applicant.

Syed Ehsan Raza for Respondent No. 1.

Nemo for Respondents Nos. 2 and 3.

Date of hearing: 30th January, 2024.

Judgment

Muhammad Faisal Kamal Alam, J.---Through the present Civil Revision Application, the Appellant has challenged the Order dated 09.09.2022 [the "Impugned Order"] passed in Civil Appeal No.184 of 2021, whereby, the Order dated 17.09.2021 of the learned Executing Court [in Execution Application No.13 of 2020] dismissing the Application of present Respondent No.1, filed under Section 3 of the Limitation Act [1908], has been overturned, as a result of which the above Execution Application of the Appellant has been dismissed.

1. Mr. Malik Waseem Iqbal, Advocate, representing the Applicant(s), has argued that the limitation of three years, in terms of Article 181 of the Limitation Act, would be counted when the last order was passed, which is of 22.02.2020, by this Court in Revision Application No.39 of 2014 preferred by the present Respondent No.1, dismissing the same and maintaining the Judgment and Decree of the Appellate Court, in favour of the Applicant. The Execution Application is filed on 19th August 2020, that is, six months after the above Order [passed in Revision proceeding], and is within time. In support of his arguments, he has cited the case law reported in_

i. 1992 SCMR 241

[Maulvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others] Abdul Qayyum case

ii. 2013 SCMR 5

[Bakhtiar Ahmed v. Mst. Shamim Akhtar and others] - Bakhtiar case

iii. 2021 CLC 909

[Director General (Headquarters) Civil Works Organization, Rawalpindi through Authorized Officer v. Muhammad Afsar and others]; and

iv. P L D 2009 Karachi 397

[Ferozuddin and 11 others v. Mazhar Hussain Shah and 5 others].

1. On the other hand, Syed Ehsan Raza, Advocate, representing Respondent No.1, has controverted the above arguments and has supported the Impugned Order. Contended that Execution proceeding initiated by the Applicant itself is time barred as it is filed after a period of three years in violation of Article 181 [ibid]; because the limitation period is to be counted from date when the first time the Applicant got the Decision in his favour, that is, through the Judgment and Decree dated 3rd March 2014, given by the Appellate Court; which was maintained by this Court in the above Revision Proceeding and in the intervening period since no stay was operating, thus, the above Execution Proceeding should have been filed much earlier [three years after the Appellate Court Decision of 03.03.2014], but, initiated after six years, is barred by time; that Respondent No.1 [judgment debtor] should not be at mercy of decree holder/ the Applicant, as far as the implementation of judgment and decree is concerned. He has cited the following case law_

i. P L D 1985 Supreme Court 153

[Hakim Muhammad Buta and another v. Habib Ahmed and others]; and

ii. P L D 2020 Sindh 652

[Mst. Noor Jehan and others v. Miss Shahnaz and 3 others] - Mst. Noor Jehan.

1. Undisputed facts are that present Applicant has filed Suit No.409 of 2005 against the Respondents, inter alia, for declaring Sale Agreement dated 09.01.1999 between the Respondents as forged and fictitious document and direction to Respondent No.1 [Muhammad Ayoub] for handing over the subject property to the Applicant, which the latter has purchased through a Sale Deed executed by Respondent No.3 [Mrs. Parveen]; subsequently, Respondent No.1 also instituted a Suit No.896 of 2007 and both Suits were decided by a consolidated Judgment dated 30.03.2013, dismissing the Suit of present Applicant and decreeing that of present Respondent No.1, which Judgment was challenged by the Applicant by filing two Civil Appeals Nos.137 and 140 of 2013, which were decided by the Appellate Court in favour of the Applicant, by decreeing the Applicant's Suit and dismissing the Suit filed by Respondent No.1 vide Judgment and Decree dated 03.03.2014, which was challenged by the Respondent No.1 in Civil Revision Application No.39 of 2014, before this Court, but unsuccessfully and the Judgment dated 22.02.2020 of this Court has upheld the Appellate Decision. These Judgments are available at pages-107, 203 and 309 of the Lis record.

2. The Applicant filed Execution Application No.13 of 2020, presented on 19.08.2020, for implementation of the Judgment and Decree dated 3rd March 2014 [of the Appellate Court], which was maintained in Revision [supra], was opposed by the Respondent No.1, inter alia, by filing the Application under Section 3 of the Limitation Act [1908], that the Execution proceeding itself is time barred as it is filed after a period of three years from the Judgment and decree in violation of Article 181 of the Limitation Act. After hearing the parties, the learned Executing Court vide Order dated 17.09.2021 [at page-25-C] dismissed the above Application of Respondent No.1, which is overturned through the Impugned Order.

3. Précis of the case law cited by the Applicant's Counsel is that rule of merger equally applies to the decree passed in revisional jurisdiction [besides the Appellate Court]. The issue at hand has been comprehensively decided in the Abdul Qayyum case [supra] in which an execution petition was filed on 5th January 1987, after the judgment and decree of the High Court dated 18.11.1986 was pronounced; the Decree of the Trial Court was of 27th April 1981, which was challenged in appeal unsuccessfully [vide order dated 18.10.1981], followed by the above revision order of the High Court. The executing court declined the request of respondent [of the reported judgment] and allowed the Execution which was appealed against without any success, but, eventually in the revisional jurisdiction the learned High Court reversed the decisions emanating from the Execution Proceeding. While interpreting Article 181 [of the Limitation Act], it is held, that the time period will start when the right to accrue arise to file the execution, which "legitimately arises when Revision against a decision of the lower Court is, one way or other, disposed of."; whereas, in Bakhtiar's case [ibid] the Honourable Supreme Court has further clarified that time to file the Execution proceeding will start when finally a matter is decided through appeal or revision by the High Court and the time consumed in pursuing civil petition before the Supreme Court, unless the impugned decision is under suspension, is not excluded from computing the limitation; the CPLA [Civil Petition Leave to Appeal] was dismissed, because, the petitioner filed the execution petition on 3rd December 2007, after the leave refusal Order dated 31st March 2005, whereas, through the judgment dated 17th March 2003, the civil revision preferred by the same petitioner was partly accepted / decreed; the Apex Court is of the view that the right accrued to file the execution proceeding from the date of judgment of the High Court.

2025 M L D 1136

[Sindh (Hyderabad Bench)]

Before Amjad Ali Sahito, J

Ali Ahmed and another---Applicants

Versus

The State---Respondent

Criminal Bail Application No. S-41 of 2025, decided on 27th January, 2025.

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

----Ss. 347 & 498---Control of Narcotic Substances (Amendment) Act (XX of 2022), S.9(1)(3)(D)---Possession of narcotic substance---Pre-arrest bail, confirmation of---Transfer of case from Judicial Magistrate to Special Judge---No notice issued to accused persons---Procedural fairness---Scope---Allegations against the accused-petitioners were that 1600 kilograms bhang was recovered from their truck---After completion of the investigation, a report in terms of S.173, Cr.P.C was submitted before the Special Judge, however said Special Judge returned the FIR and directed the SHO for submitting the same before the concerned Judicial Magistrate having jurisdiction---In compliance thereof, the Investigating Officer submitted challan/police report before the Judicial Magistrate under Ss.3 & 4 of Prohibition (Enforcement of Hadd) Order, 1979---During pendency of the case, application under S.497, Cr.P.C was filed and both the applicants were admitted to post-arrest bail---Later the case was referred to the Special Judge on the pointation of ADPP as bhang was inserted in Section 2(b) of the amended Control of Narcotic Substances Act, 2022---Order passed by Judicial Magistrate, reflected that when case was fixed for recording evidence, the ADPP for the State pointed out that the case after the Control of Narcotic Substances (Amendment) Act, 2022 came under CNS Act, as such, the Judicial Magistrate had rightly referred the case to the Court of Sessions/Special Judge under S. 347, Cr.P.C.---Moreover, this was a special enactment and the case become triable by the Court of Special Judge---More so, when the case came under the category of Control of Narcotic Substances (Amendment) Act, 2022 the Magistrate was not empowered to try the same as it carried punishment beyond its powers---After passing the order by the Judicial Magistrate neither it was challenged by the applicants nor they raised any objection at the time of passing such order---However, counsel for the applicants filed pre-arrest bail before the Court of Session/Special Judge for CNS cases---After hearing the parties, the said bail application was dismissed---If the charges or the nature of the case changed which might result in the accused facing a more severe trial, a show-cause notice was necessary to inform the accused about the change in the Court's jurisdiction and to allow them an opportunity to respond---Even no show cause notice was issued by the Judicial Magistrate to the accused as to why their bail granting order shall not be recalled, which was an essential procedural safeguard to ensure fairness in the criminal justice system as it allowed the accused to challenge the transfer or adjust their defense strategy in light of the more serious charges, which they might face---In this case, the Judicial Magistrate should have issued such a notice to the applicants to uphold procedural fairness---Applicants were continuously attending the Trial Court and there was also no complaint that they had misused the concession of bail---Bail could not be denied to the accused merely for the said reasons---In such circumstances of the case, the interim pre-arrest bail already granted to applicants was confirmed.

Muhammad Anwar v. The State and another 2024 SCMR 1567 rel.

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

----Ss. 497 & 498---Bail---Observations of the Court---Scope---Observations made in bail orders are tentative in nature and should not influence the Trial Court while deciding the case on merits.

Mian Taj Muhammad Keerio for Applicants.

Shahid Ahmed Shaikh, A.P.G. Sindh along with SIP Hamid Ali Otho, SHO Jhok Shareef for the State.

Date of hearing: 27th January, 2025.

Order

Amjad Ali Sahito, J.--- Through instant bail application, the applicants/accused namely, Ali Ahmed and Riaz Siyal seek post-arrest bail in Crime No.122/2023 for the offence under section 9(1) (3) (D) of CNS Act, 2022 registered at Police Station B-Section, Tando Muhammad Khan. Earlier the bail plea of the applicants/accused was declined by the learned Sessions Judge/Special Judge for C.N.S.A. Tando Muhammad Khan vide order dated 29.11.2024.

1. Background of the case is that on 18.11.2023, between 12:00 PM and 3:00 PM, a police team from PS B-Section Tando Muhammad Khan, led by SIP Liaquat Ali Gopang, conducted vehicle checking at Check Post Shaheed Baba. During checking, a Blue Mazda bearing No.JZ-8708 was inspected, and while one person fled, two others were apprehended: Ali Ahmed Siyal (driver) and Riaz Siyal. They identified the third person, Muhammad Sarwar Punjabi, as an absconder. The vehicle contained 40 sacks, each weighing 40 kg, filled with brown cotton boxes containing bhang. Total 1600 kg of bhang was recovered. Samples i.e. 500 grams from each sack were sealed for chemical analysis and the remaining bhang was stored. The memo. of arrest and recovery was prepared. Hence, instant case was registered.

2. After registration of the case, the Station House Officer submitted a report under section 173, Cr.P.C. to the Special Judge for CNS/MCTC, Tando Muhammad Khan. However, the Special Judge determined that the crime did not fall under the Control of Narcotics Substance Act, 1997, and held that it comes under the Prohibition (Enforcement of Hadd) Order, 1979. As a result, the learned Judge returned the report to the SHO to be submitted to the concerned Judicial Magistrate, as the case was exclusively triable by a Magistrate Court.

3. Learned counsel for the applicants has contended that since no case under the Control of Narcotic Substances Act was established, as such, the FIR was converted under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and referred to the Civil Judge and Judicial Magistrate-III, Tando Muhammad Khan, who took cognizance of the offense under the orders of learned Special Judge, Tando Muhammad Khan vide order dated 08.12.2023. The applicants then applied for post-arrest bail, which was granted. However, when the case was fixed for evidence, the ADPP for the State pointed out that the case comes under the Control of Narcotics Substances Act due to an amendment that included "BHANG", "SIDDHI" and "GANJA" in the definition of narcotics and that the alleged recovered property exceeded 20,000 grams, the punishment could be upto life imprisonment with a fine but shall not be less than 14 years with a fine; hence, the learned Magistrate referred the case to the Sessions Court under section 347, Cr.P.C./want of jurisdiction. The learned counsel has further contended that the ADPP instead to point out so, he should have challenged the order passed by the Special Judge on 08.12.2023, before this Court, as that order still remained in field. He further contended that even there is no application moved by the learned ADPP or Investigating Officer of the case in this regard. He has further contended that since after referring the case to the Court of Learned Special Judge, the applicants had apprehension that they may not be taken into custody, as such, bail application was filed, but which was dismissed without considering that they were already on bail granted by learned Magistrate. Learned counsel further contended that since the applicants/accused have been admitted to post arrest bail and they have not misused the concession of bail even show cause notice was not issued by the learned Magistrate to the accused persons that why not their bail already granted to them shall be recalled, as such, on jurisdictional point between two Courts, the applicants may not suffer and in fact no bhang was recovered from them but they were booked falsely. He, therefore, prayed that the interim pre-arrest bail granted to the applicants may be confirmed.

4. On the other hand, the learned A.P.G. for Sindh has contended that the case involves a jurisdictional issue related to the recovery specifically whether it falls under special or ordinary law. He further contended that initially the learned Special Judge ordered on the report under section 173, Cr.P.C. that the case is falling under the Prohibition (Enforcement of Hadd) Order, 1979; however, after having look at an amendment in the CNS Act, the learned Magistrate referred the case with opinion on the pointaiton of learned ADPP that the case falls under CNS amended Act and its Court is incompetent to try the case, as such, the jurisdiction lies with the Sessions Judge/Special Judge. The A.P.G. further contended that the only issue is whether the case should have been referred to the Court of learned Magistrate first or, later, to the Sessions Judge/Special Judge. The A.P.G. pointed out that before referring the case, the Magistrate should have issued a show-cause notice to the accused, asking why their bail should not be canceled, as such, the Magistrate has wrongly passed the order.

5. Heard and perused.

6. The case of prosecution is that the police arrested the applicants and recovered 1600 kg of Bhang while one accused made his escape good. As such, FIR was registered under sections 9(1)(1)(D) of CNS Act, 2022. After completion of the investigation, a report in terms of section 173, Cr.P.C. was submitted before the learned Special Judge for CNS cases/MCTC, Tando Muhammad Khan; however, learned Special Judge vide order dated 08.12.2023 returned the FIR and directed to the Station House Officer Ashiq Balouch for submitting the same before the concerned Judicial Magistrate having jurisdiction. In compliance thereof, the Investigating Officer submitted challan/police report before the learned Civil Judge and Judicial Magistrate-III, Tando Muhammad Khan.

7. It is important to note here that when learned Sessions/Special Judge returned the report filed under section 173, Cr.P.C. the police officer has submitted the challan under sections 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979. It would be appropriate to reproduce the relevant para of the order dated 08.12.2023 passed by learned Sessions Judge, which reads as under:-

"The instant crime does not fulfill the requirement of Control of Narcotics Substance Act, 1997 and comes under Prohibition (Enforcement of Hadd) Order, 1979 and as per Schedule of Prohibition (Enforcement of Hadd) Order, 1979, 1. The leaves, small stalks and flowering or fruiting tops of the Indian hemp plant (cannabis Sativa L) including forms known as Bhang Siddhi or Ganja).

2. Charas that is, the resin obtained from the Indian hemp plant, which has not been submitted to any manipulations other than those necessary for packing or transport.

1. Any mixture, with or without natural materials or any of the articles mentioned in entries 1 and 2, or any drink prepared therefrom.

4. Opium and opium derivatives as defined in the Dangerous Drugs Act, 1930 (II of 1930).

1. Coca leaf and coca derivatives as defined in the aforesaid Act.

6. Hashish.

1. During pendency of the case, application under section 497, Cr.P.C. was filed and both the applicants were admitted to post-arrest bail in the sum of Rs.30,000/- each and PR bond in the like amount, after grant of bail by the learned Civil Judge and Judicial Magistrate-III Tando Muhammad, a charge was framed and at the time of recording evidence, the learned ADPP for the State pointed out that instant case comes under the Control of Narcotic Substances (Amendment) Act, 2022 and as per amendment of the Act, the "Bhang, Sidhhi or ganja" are inserted in Section 2 under clause (b) of the Act. On such basis, the learned Magistrate referred the case to the learned Sessions/Special Judge under section 347, Cr.P.C.

2. It would be relevant to mention here that the National Assembly/Majlis-e-Shoora (Parliament) has made amendments in the Control of Narcotic Substances Act, 1997 and this is called the Control of Narcotic Substances (Amendment) Act, 2022. In the said Act, the bhang is also inserted in view of clause (b) in section 2 of CNS Act. The said insertion of bhang under clause (b) of section 2 is reproduced as under:-

"(b) in clause (d), in paragraph (ii) after the word "known", the words "and include all forms known as bhang, siddhi or ganja" shall be inserted;"

In the said amendment the Table was prepared wherein the punishment provided for bhang in its quantity clause (a) upto 999 grams is imprisonment which may be extended to three years but shall not be less than six months along with the fine and lastly in clause (d) for the quantity of 20000 grams or more imprisonment which may be extended to life imprisonment but shall not be less than fourteen years along with fine. In the instant case, learned Sessions/Special Judge was not properly guided by the learned ADPP or Police Officer, as such, an improper order was passed treating the case under sections 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979; although, in fact, the bhang was also inserted in the Control of Narcotic Substances (Amendment) Act, 2022, as stated above.

1. When it was confronted from learned counsel for the applicants that if after the order is passed by learned Sessions/Special Judge whether the Magistrate can yet continue to try the case despite fact that after Amendment made in the year 2022 in the CNS Act, on recovery of 1600 kg of bhang, the accused is liable for punishment upto life imprisonment but shall not be less than fourteen years years along with fine as described in clause (d) of the column of Quantity in the Table for contravention of sections 6, 7 and 8 of the Act besides the Judicial Magistrate is not empowered to award such amount of sentence, the learned counsel replied in positive and stated that it is prime duty of Magistrate to obey the judicial order whether it is right or wrong. Learned counsel, however, stated that if any wrong order is passed in this regard, then it was duty of the Prosecutor or police either to challenge the same or to file application for its review within the prescribed time.

2. I have also minutely perused the order passed by learned Judicial Magistrate, which reflects that when case was fixed for recording evidence, the ADPP for the State pointed the jurisdictional point of the case after the Control of Narcotic Substances (Amendment) Act, 2022 the instant case comes under CNS Act, as such, the learned Magistrate has rightly referred the case to the Court of Sessions/Special Judge under sections 347, Cr.P.C. This is a special enactment and the case became triable by the Court of Special Judge. More so, when the case came under the category of Narcotic Substance Act, the Magistrate is not empowered to try the same as it carries punishment beyond its powers as enunciated under section 32 of the Code of Criminal Procedure, 1898 whereby under clause (a) the Magistrate of the first class is only empowered to award imprisonment for a term not exceeding three years including such solitary confinement as is authorized by law as well fine not exceeding forty five thousand rupees (arsh; daman). After passing the order dated 21.10.2024 by the learned Magistrate neither it was challenged by the applicants nor they raised any objection at the time of passing such order. However, learned counsel for the applicants filed pre-arrest bail before the Court of Sessions/Special Judge for CNS Cases. After hearing the parties, the said bail application was dismissed.

3. It is important to note here that if the charges or the nature of the case changes which may result that the accused may face a more severe trial, a show-cause notice is necessary to inform the accused about the change in the court's jurisdiction and to allow them an opportunity to respond. Even no show cause notice was issued by the learned Magistrate to the accused that why their bail granting order shall not be recalled. This is an essential procedural safeguard to ensure fairness in the criminal justice system as it allows the accused to challenge the transfer or adjust their defense strategy in light of the more serious charges, which they may face. In this case, the learned Magistrate should have issued such a notice to the applicants to uphold procedural fairness.

4. Admittedly before reference of the case, the applicants were on bail. Even, learned Magistrate has not recalled the bail granting order, which is still in field. In the case of 'Muhammad Anwar v. The State and another' [2024 SCMR 1567], the Honourable Supreme Court has held that;

2025 M L D 1152

[Sindh (Larkana Bench)]

Before Omer Sial and Khalid Hussain Shahani, JJ

Waqar Ahmed---Appellant

Versus

The State---Respondent

Criminal Appeal No. D-43 of 2024 (Old Number), Criminal Revision No. D-16 of 2024 (New Number), decided on 13th March, 2025.

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

----S. 9(c)---Possession of narcotic substances---Appreciation of evidence---Safe custody and safe dispatch of case property for analysis not established---Prosecution case was that 5000-grams charas was recovered from the possession of the accused---Record demonstrated that after the framing of the charge, the prosecution presented its evidence, beginning with the examination of complainant and recovery witness---Although the opportunity for cross-examination was available, the defense did not avail the same and responded in nil---On the same date, the Investigating Officer was examined and during his testimony, he categorically admitted that he did not produce the original record pertaining to the safe custody and safe dispatch of the case property, a critical procedural lapse in the prosecution's case---Said deficiency alone was sufficient to vitiate the conviction, as proving an unbroken chain of custody was an indispensable requirement in narcotics cases---Appeal against conviction was allowed, in circumstances.

Zahir Shah v. State 2019 SCMR 2004; Javed Iqbal v. State 2023 SCMR 139; Asif Ali and another v. State 2024 SCMR 1408 and Qaiser Khan v. State 2021 SCMR 363 rel.

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

----S. 9(c)---Constitution of Pakistan, Art. 10-A---Possession of narcotic substances---Appreciation of evidence---Admission of accused not obtained in accordance with law---Prosecution case was that 5000-grams charas was recovered from the possession of the accused---Admission or confession must be voluntary, unequivocal, and recorded with due compliance to procedural safeguards, including informing the accused of its legal consequences---In the present case, the record did not reflect that the accused was provided such an opportunity, thereby violating his fundamental right to a fair trial under Art.10-A of the Constitution---Furthermore, reliance on an admission of guilt, especially in the absence of a properly documented and secured chain of custody of the case property, was contrary to the settled law---Procedural anomalies indicated that the purported admission of guilt was not obtained in accordance with the law and raised the possibility of deception or coercion practiced upon the accused---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotic substances---Appreciation of evidence---Safe custody of case property---Chain of safe custody of the recovered substance not proved---Prosecution case was that 5000-grams charas was recovered from the possession of the accused---Record showed that the prosecution failed to establish the safe custody and unbroken chain of transmission of the seized contraband from the time of its alleged recovery until its deposit in the chemical laboratory---Record demonstrated that neither the Malkhana Incharge nor the designated carrier of the case property was produced as a witness, nor was any original record, such as roznamcha entries or Form 22.70 from Register No. XIX of the Police Rules, 1934, submitted in evidence---Failure to examine these crucial witnesses constituted a serious legal defect that directly impacted the credibility of the prosecution's case---Appeal against conviction was allowed, in circumstances.

Farhat Ali Bugti for Appellant.

Ali Anwar Kandhro, Additional Prosecutor General for the State.

Date of hearing: 4th March, 2025.

Judgment

Khalid Hussain Shahani, J.---The appellant, Waqar Ahmed, was convicted for offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, in Crime No.93/2022 registered at Police Station New Foujdari by the court of learned 1st Additional Sessions Judge (MCTC)/Special Judge for CNSA, Shikarpur, and sentenced to a period equivalent to the time already undergone in custody and imposed a fine of Rs.1,000,000/- (ten lacs), with the stipulation that failure to pay the fine would result in an additional imprisonment of ten years.

1. The genesis of the prosecution's case originates from an incident dated July 06, 2022, at about 03:00 p.m, wherein a police party headed by ASI Manzoor Ali Khokhar of Police Station Foujdari, Shikarpur, allegedly apprehended the appellant, Waqar Ahmed, from a link road near City Gate and effected recovery of 5000 grams Charas from him. Consequently, an FIR was lodged against the appellant.

2. The appellant, Waqar Ahmed, pleaded not guilty. To substantiate its case, the prosecution examined ASI Manzoor Ali (complainant), HC Aijaz Ali (the mashir of arrest and seizure), and SIP Mehar Ali Shah (Investigating Officer). However, an essential aspect of the prosecution's case relates to the purported admission of guilt made by the appellant through an application and statement recorded under Section 342, Cr.P.C.

3. At the very outset, the learned counsel for the appellant argued that the prosecution failed to establish the safe custody of the recovered contraband from the moment of its seizure until its deposit at the chemical laboratory. While this fact was acknowledged in the impugned judgment, the learned trial court, without exercising due judicial diligence, summarily accepted an application purportedly containing an admission of guilt by the appellant, marked as Exhibit No.08. The trial court, in doing so, failed to issue any notice or inform the appellant of the legal consequences of such an admission, thereby infringing upon the fundamental right to a fair trial guaranteed under Article 10-A of the Constitution of Pakistan.

4. The learned Additional Prosecutor General, albeit with some reluctance, conceded that the prosecution failed to establish the crucial legal requirement of proving the safe custody and transmission of the seized contraband from the time of its alleged recovery until its deposit in the chemical laboratory.

5. The record demonstrates that after the framing of the charge on November 11, 2022, the prosecution presented its evidence, beginning with the examination of SIP Manzoor Ali and mashir HC Aijaz Ali on April 15, 2024. Although the opportunity for cross-examination was available, the learned defense counsel did not avail the same and responded in nil. On the same date, the Investigating Officer, SIP Mehar Ali Shah, was examined. During his testimony, he categorically admitted that he did not produce the original record pertaining to the safe custody and safe dispatch of the case property, a critical procedural lapse in the prosecution's case. In paragraph No.06 of the impugned judgment, the learned presiding officer made a crucial observation, acknowledging that the prosecution had failed to produce original documentation concerning the secure transmission and storage of the recovered contraband. This deficiency alone, as per the settled principles laid down by the Honorable Supreme Court of Pakistan, is sufficient to vitiate the conviction, as proving an unbroken chain of custody is an indispensable requirement in narcotics cases. Reliance is placed of Zahir Shah v. State (2019 SCMR 2004), Javed Iqbal v. State (2023 SCMR 139), Asif Ali and another v. State (2024 SCMR 1408) and Qaiser Khan v. State (2021 SCMR 363). However, rather than addressing this evidentiary defect in accordance with the dictates of law, the trial court based its conviction primarily on an alleged written admission of guilt by the accused. It is settled law that an admission or confession must be voluntary, unequivocal, and recorded with due compliance to procedural safeguards, including informing the accused of its legal consequences. In the present case, the record does not reflect that the accused was provided such an opportunity, thereby violating his fundamental right to a fair trial under Article 10-A of the Constitution of Pakistan. Furthermore, reliance on an admission of guilt, especially in the absence of a properly documented and secured chain of custody of the case property, is contrary to the settled law. The Supreme Court has repeatedly emphasized that when crucial legal requirements such as the safe custody and transmission of contraband remain unproven, the benefit of the doubt must necessarily extend to the accused. The trial court's approach in ignoring this well-established principle and hastily recording a conviction without substantive evidentiary support is legally unsustainable and amounts to a grave miscarriage of justice.

6. From the testimony of the witnesses and the observations recorded by the learned presiding officer, it is evident that the prosecution failed to establish the safe custody and unbroken chain of transmission of the seized contraband from the time of its alleged recovery until its deposit in the chemical laboratory. The record demonstrates that neither the Malkhana Incharge nor the designated carrier of the case property was produced as a witness, nor was any original record, such as roznamcha entries or Form 22.70 from Register No. XIX of the Police Rules, 1934, submitted in evidence. As for the alleged admission of guilt relied upon by the trial court, its circumstances raise serious legal concerns for the reasons:

• The learned defense counsel did not cross-examine two key prosecution witnesses (the complainant and the mashir), which deprived the accused of a fair opportunity to contest the evidence.

2025 M L D 1159

[Sindh]

Before Muhammad Karim Khan Agha and Adnan-ul-Karim Memon, JJ

Alishba Gulzar---Appellant

Versus

Professor Anjum Rehman and others---Respondents

Constitution Petition No. D-1857 of 2024, decided on 19th December, 2024.

Constitution of Pakistan---

----Art. 199---Educational institution---Cancellation of admission in MBBS---Allocation of seats to medical student ---Policy matter---Interference by High Court---Scope---Pakistan Medical and Dental Council (PMDC) had allocated 100 seats for medical college in question and High Court could not direct the PMDC to increase the allocation of seats for medical college as this was a policy decision which through their expertise and knowledge of the available resources in this scientific field they were best equipped to deal with and decide on---As per Rules of admission of medical college until the PMDC's portal was closed, the admissions were only provisional, thus, once the credentials of the student "AA" admitted in place of the petitioner stood verified within the given time frame, he was entitled to take the seat allocated for him in the MBBS course on the basis of his position in the merit list and the petitioner's provisional admission necessarily had to be cancelled---Petitioner's admission was provisional until 31st March and in that time student "AA", who was above her on the merit list and who initially had been denied admission based on the wrongful verification of his credentials, was able to have those credentials re-verified in time and as such he was entitled to reclaim his initially wrongfully declined admission to MBBS---Medical college was directed to repay the petitioner her admission fee while giving her liberty to approach the Karachi Medical and Dental College to take back her BDS seat, which she earlier vacated subject to its availability---Constitutional petition was dismissed, in circumstances.

Vice Chancellor Agriculture University Peshawar v. Muhammad Shafiq 2024 SCMR 527 and Muhammad Mumtaz Khan v. Siraj Bibi 2024 SCMR 956 rel.

Ms. Naila Kausar Shaikh for Petitioner.

Muhammad Talha Abbasi for Respondents Nos. 1 to 7.

Sohail Hayat Khan Rana for Respondent No. 8.

Wasiq Mirza and Ms. Sajida Arshad for Respondent No. 9.

Jawad Dero, Assistant Advocate General Sindh and Ms. Wajiha M. Mehdi, Assistant Attorney General of Pakistan for the State.

Date of hearing: 19th December, 2024.

Order

Muhammad Karim Khan Agha, J.---The petitioner is a first year medical student in MBBS at Shaheed Mohtaram Benazir Bhutto Medical College (SMBBMC) in Lyari and her main prayer is that she be declared by this court to be a lawful medical student (MBBS) at SMBBMC and that she may continue with her studies at SMBBMC.

1. The brief facts of the case is that the petitioner appeared in the MDCAT test and based on the merit list she could not be accommodated for the MBBS course at SMBBMC and as such she elected to study for a BDS degree in dentistry at Karachi Medical and Dental College. Shortly after her MDCAT results were known and the seniority list was prepared the petitioner had elected to study for a BDS degree however one candidate on the merit list whose marks were above hers and who had a place on the MBBS course was dropped by SMBBMC as his credentials did not stand the test of verification. As such since the petitioner actually wanted to study medicine as opposed to dentistry she requested that she be transferred from the BDS course to the MBBS course which request was approved by SMBBMC and as such the petitioner paid the relevant fees and started to attend the MBBS medical course at the SMBBMC. Thereafter according to her the staff at SMBBMC stopped her from attending classes and hence she approached this court for interim relief to enable her to attend the classes still disposal of this petition which was granted.

2. Learned counsel for the petitioner re-affirmed the above facts and contended that the exams were around the corner and the SMBBMC had no legal authority to cancel her admission to the MBBS course as she had been accepted according to the merit list and as such she should be declared to be a lawfully admitted MBBS medical student of SMBBMC and enabled to sit for her exams and continue her medical studies at SMBBMC until she graduated and her petition be allowed.

3. On the other hand learned counsel for SMBBMC contended that in actual fact the petitioners admission to the MBBS course at SMBBMC was on a provisional basis until 31st March when they had to inform the Pakistan Medical and Dental Council (PMDC) of the final 100 MBBS students who had been admitted to the MBBS course at SMBBMC as per PMDC allocation of seats being 100. He conceded that initially a student named Aizaz Ali had been originally put on the preliminary admissions list based on the merit list however he was later removed from the list as his credentials were not positively verified where after his seat was allotted to the petitioner. He further contended however when the credentials of Aizaz Ali were sent for re verification they were found to be in order and the original glitch had been made on the part of the Mukhtikhar/DC who had failed to carry out his verification with due diligence. As such based on the merit list Aizaz Ali was again given admission to the MBBS course which resulted in the petitioner being dropped from the list. According to him whilst the petitioner was being informed about this unfortunate situation the petitioner rushed to the court and obtained interim relief which enabled her to continue her MBBS studies at the SMBBMC. He contended that since all admissions were provisional up until 31st March when the portal for registration of PMDC closed SMBBMC acted lawfully in cancelling her seat for an MBBS degree at SMBBMC as until she was registered on the portal of PMDC her admission remained provisional and was not confirmed.

4. We have heard the parties and perused the record and considered the relevant law.

5. This is obviously a distressing case for the petitioner whose dream was to become a medical doctor and now her immediate progress in that field appears to be in jeopardy. We as individuals have every sympathy for the petitioner however as judges were are bound to decide the petition objectively and strictly in accordance with the law and put our emotions and personal feelings aside. We even called the representative of the PMDC and the Principle of SMBBMC to assist us in this matter to see if some via media could be renched which could sit within the frame work of the law and be acceptable for all parties but unfortunately despite our best efforts we were not able to find a way forward.

6. Many students in this country and indeed throughout the world dream of studying MBBS and becoming medical doctors and as such the regulatory body in this case being the PMDC is constrained to allocate a limited number of seats based on merit as the number of applicants for the course of MBBS is bound to exceed the available seats. In this respect for PMDC the seats for SMBBMC is 100 and we are not inclined to direct the PMDC to increase the allocation of seats for SMBBMC as this is a policy decision which through their expertise and knowledge of the available resources in this scientific field they are best equipped to deal with and decide on. It might also open the flood gates in many such cases which would result most likely in the decline in medical education in this country as the classes might become over crowded with the end result being doctors graduating who were not so well qualified. In this respect we place reliance on the case of Vice-Chancellor Agriculture University Peshawar v. Muhammad Shafiq (2024 SCMR 527) which held as under in material part.

"7. At this juncture, it is underlined that the process of regularization is a policy matter and the prerogative of the Executive which cannot be ordinarily interfered with by the Courts especially in the absence of any such policy. It does not befit the courts to design or formulate policy for any institution, they can, however, judicially review a policy if it is in violation of the fundamental rights guaranteed under the Constitution. The wisdom behind non-interference of courts in policy matters is bused on the concept of institutional autonomy which is defined as a degree of self-governance, necessary for effective decision making by institutions of higher education regarding their academic work, standards, management, and related activities. Institutional autonomy is usually determined by the level of capability and the right of an institution to decide its course of action about institutional policy, planning, financial and staff management, compensation, students, and academic freedom, without interference from outside authorities. The autonomy of public institutions is not just a matter of administrative convenience, but a fundamental requirement for the effective functioning of a democratic society, as public sector organizations are guardians of the public interest. Democracy, human rights and rule of law cannot become and remain a reality unless higher education institutions and staff and students, enjoy academic freedom and institutional autonomy. More recently, the concept has in its longstanding and idealized form been well captured in the Magna Charta Universaitum 2020 that states "...intellectual and moral autonomy is the hallmark of any university and a precondition of its responsibilities to society."

8. Courts must sparingly interfere in the internal governance and affairs of educational institutions i.e., contractual employments. This is because the courts are neither equipped with such expertise, nor do they possess the relevant experience that would allow for interference in such policy matters. Under this autonomous realm, educational institutions are entitled to deference when making any decisions related to their mission. At the same time, any transgression by Courts would amount to the usurpation of the power of another, which would be against the spirit of Article 7 of the Constitution as it is not the role of the Courts to interfere in policy decisions. The judicial pronouncement of the Courts in other jurisdictions i.e. United States of America. United Kingdom and India also provide that courts should not interfere in the Internal affairs of educational institutions. "(bold added)

1. Likewise in the case of Muhammad Mumtaz Khan v. Siraj Bibi (2024 SCMR 956) which also concerned admission to a university it was held as under:-

"In the affairs of admission and examination in the educational institutions, the concerned authorities are vested with the powers and jurisdiction to lay down the eligibility criteria in their own rules, regulations, or prospectus. They are independent to follow their own policy for admission, and in other affairs, therefore, the academic, administrative, and disciplinary autonomy of a university must be respected. The interference by the courts in the admission policy would give rise to glitches for the said institutions to administer the matters harmoniously and efficiently. The educational institutions are competent to manage their own affairs without any outside intervention from executive or judicial organs unless they contravene or disregard the compass of their authority or act in breach of applicable statutes or admission policies as laid down in the prospectus. There is no ambiguity in the eligibility criteria mentioned in the prospectus; hence, it was not open to any other interpretation. Nothing on record shows that while cancelling admission of the respondent No.1, the University committed any act in violation of their rules and regulations."

1. Since we cannot increase the number of seats the issue is how can we accommodate the petitioner? The only option would appear to be to swop her seat with that of Aizaz Ali who is not even on notice. Even otherwise we find no reason to do so since the rules of admission of SMBBMC make it clear that until the PMDC's portal is closed the admissions are only provisional. So once the credentials of Aizaz Ali stood verified within the given time frame he was entitled to take the seat allocated for him on the MBBS course based on his position in the merit list and the petitioner's provisional admission has to necessarily to be cancelled.

2025 M L D 1196

[Sindh]

Before Jan Ali Junejo, J

Noman Khan and 2 others---Applicants

Versus

The State---Respondent

Criminal Bail Application No. 1558 of 2024, decided on 20th February, 2025.

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 324 & 34---Attempt to commit qatl-i-amd, common intention---Pre-arrest bail, confirmation of---Further inquiry---Allegations against the accused-petitioners were that they caused injures to the complainant by firing---Complainant allegedly sustained an injury to a non-vital part of the body---Additionally, the FIR did not specifically identify any of the applicants/accused as the individual responsible for firing the bullets that caused the injury---Lack of clear attribution casted doubt on the direct involvement of the applicants/accused in the shooting incident---Furthermore, there was no allegation that the applicants/accused continued to fire shots, even though they had ample opportunity to do so---Absence of repeated gunfire may have indicated a lack of intent to commit murder---Given these factors, the essential elements required to establish an offence under S.324, P.P.C appeared to be prima facie absent---First Information Report itself mentioned on-going clash between the parties, particularly referencing FIR lodged under S.302, P.P.C---Said fact suggested that the current incident might be part of a broader conflict, which required further inquiry, thus case fell within the ambit of S.497(2), Cr.P.C, which allows the grant of bail if further inquiry is needed---Pre-arrest bail granted to the applicants earlier was confirmed, in circumstances.

Jamaluddin and another v. The State 2023 SCMR 1243 and Muhammad Umar v. The State and another PLD 2004 SC 477 rel.

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

----Ss. 497 & 498---Bail order---Observations of Court---Scope---Observations recorded in bail orders are solely for the purpose of bail and should not prejudice or infringe upon the rights of the parties concerning the merits of the case.

Hashmat Khalid for Applicants/accused.

Naeem Mehmood for the Complainant.

Muhammad Raza, Additional Prosecutor General, Sindh along with P.I. Bilal Ahmed, PS Taimuria for the State.

Date of hearing: 20th February, 2025.

Order

Jan Ali Junejo, J.---The present Criminal Bail Application has been filed on behalf of the Applicants/Accused, who are seeking pre-arrest bail in connection with a case stemming from FIR No. 184 of 2024, registered at P.S. Haidry Market, Karachi, under Sections 324/34 of the Pakistan Penal Code (P.P.C.). The Applicants/Accused initially approached the learned Sessions Court by filing Bail Application No. 1060 of 2024, which was dismissed by the Court of the learned IInd Additional Sessions Judge, Karachi-Central, vide Order dated 10-07-2024.

1. The facts relevant to the present criminal bail application are as follows:

The complainant, Syed Mirza Ismail Baig, owner of a beef and mutton Shop in North Nazimabad, reported that on May 9, 2024, at around 5:30 PM, three individuals arrived on two motorcycles and opened fire, injuring him in the right leg and grazing the left knee of sweeper, Ajmal John. The assailants fled, and the complainant was treated at multiple hospitals, with the bullet surgically removed and retained as evidence. He identified the attackers as Irfan Khan, Raziq Khan, and Noman Khan, sons of Naseer Khan Bangash, who had previously harassed him and were allegedly linked to a prior conflict involving his brother and a fatal altercation over extortion demands in July 2023. The complainant believes the attack was retaliation for the ongoing case (FIR No. 196/2023) related to the earlier incident.

1. The learned counsel for the Applicants/accused argued that the current FIR is a counterblast to FIR No. 196 of 2023, registered under Section 302, P.P.C., against the Complainant party. It is further contended that the present case is a result of mala fide intent and vendetta, aimed at harassing the Applicants/accused rather than seeking genuine justice. The timing and circumstances of the FIR suggest it was filed as a retaliatory measure. The counsel emphasized that the alleged bullet injury sustained by the Complainant was not on any vital part of the body, which indicates that the offense does not meet the necessary ingredients of Section 324, P.P.C. (voluntarily causing hurt by dangerous weapons or means). He further argued that the injury was minor and not life-threatening, thereby reducing the gravity of the alleged offense. The counsel contended that the case is based on weak evidence and requires further inquiry. The learned counsel highlighted that the allegations are vague, and no prima facie case is made out against the Applicants/accused. The lack of concrete evidence and the presence of ulterior motives on the part of the Complainant warrant a deeper inquiry into the guilt of the Applicants/accused. The counsel concluded by praying for the grant of pre-arrest bail, arguing that the Applicants/accused are law-abiding citizens with no prior criminal record.

2025 M L D 1426

[Sindh (Mirpurkhas Bench)]

Before Dr. Syed Fiaz-ul-Hassan Shah, J

Muhammad Sharif---Applicant

Versus

The State---Respondents

Criminal Miscellaneous Application No. S-562 of 2024, decided on 6th February, 2025.

Penal Code (XLV of 1860)---

----Ss. 504, 506-B, 148, 149, 337-A(i) & 337-F(i)---Criminal Procedure Code (V of 1898), Ss. 173 & 561-A---Inherent jurisdiction of High Court---Quashing of FIR---Intentional insult with intent to provoke breach of the peace, criminal intimidation, rioting armed with deadly weapons, unlawful assembly, shajjah-i-khafifah, ghayr-jaifah-damiyah---Complainant was aggrieved of order passed by Judicial Magistrate approving final investigation report under S. 173, Cr.P.C., as "C" Class case---Validity---Investigating Officer had not placed police report as required under S.173, Cr.P.C. and the relevant column of "case property" was blank---Investigation Officer had failed to recover the "case property" (lathi or hatchet) or alternatively failed to give plausible reason for non-recovery---Investigation Officer had deliberately thrown in garbage the Final Medico Legal Certificate issued by the Medical Officer, despite the factum that it had mentioned that the applicant had sustained injury falling under Ss.337-A & 337F(i),P.P.C---Surprisingly, the police report which was the opinion of Investigation Officer about the case had been filed without mentioning penal provisions of law reckoning in the FIR and without reference as to said penal provisions may or may not be established in the opinion of the Investigation Officer in his said police report under "C" Class---Similarly, the Office of the DPP had flagrantly violated the pre-indictment review process and had remotely forwarded the challan without completion of basic ingredients and legal requirements of the case---Investigation Officer had even intentionally not considered that those penal provision of law were enumerated in the relevant column of FIR by the SHO concerned after due consideration on the Medico Legal Certificate and for that reasons the Investigating Officer had not recorded the statement under S.161, Cr.P.C., of the Medical Officer and he failed to unearth the truth so also he had not examined the Duty Officer who had lodged FIR invoking the penal provisions of injuries---Consequently, the final police report of "C" Class prepared by Investigating Officer did not show the Medical Officer or Duty Officer in the calendar of witnesses in violation of the Police Rules---Magistrate was required to apply his mind in order to ascertain as to whether the case was one which he was required to send for trial to the Court of Session or he could proceed to try himself---Section 337-F(1),P.P.C., was triable by Court of Sessions---Investigation Officer had not incorporated the Medico-Legal Certificate and failed to place before the Judicial Magistrate, which was act of bypassing the mandatory requirements of investigation---Consequently, a case could not be treated to be one of insufficient evidence and the conduct of Investigation Officer to disbelieve such evidence without legal justification was an act to assume the role of Court which was not permissible---Simultaneously, it was impermissible for Magistrate to analyze deeper examination of material which ought to be done by the regular Trial Court as embodied by law---Obligatory duty of investigation and prosecution which squarely lied upon the Investigation Officer, Supervisory Officer and Prosecutor General's Office to bring truth and not to conceal or hide record from the Magistrate---Police report must be placed in transparent manner, which had not been done in the instant case---Therefore, the impugned Order dated 21-09-2024 passed by the Judicial Magistrate accepting the police report as "C" Class was not sustainable---Impugned order was set aside with directions to pass fresh order after considering material record in accordance with law---Criminal Miscellaneous Application stood disposed of accordingly.

Yousuf Ali Khan Ghouri v. The State through IX J.M. and 2 others 2018 YLR 1976; Saeen Bux v. Civil Judge and Judicial Magistrate Matiari and 9 others 2010 PCL 1060; Pakistan Institute of Labour Education and Research and another v. Province of Sindh through Chief Secretary, Karachi and 4 others 2017 YLR Note 343; The State v. Syed Qaim Ali Shah 1992 SCMR 2192; Shahnaz Begum v. The Hon'ble Judges of the High Court of Sindh and Balochistan and others PLD 1971 SC 677; Bahadur and another v. The State and another PLD 1985 SC 62; Arif Ali Khan v. State 1993 SCMR 187; Muhammad Sharif v. State 1997 SCMR 304; Hussain Ahmed v. Irshad Bibi 1997 SCMR 1503; Soofi Abdul Qadir v. The State 2000 PCr.LJ 520; Ali Gohar and another v. Pervez and others 2020 SCMR 2068; A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353; Mehboob Alam and 3 others v. The State PLD 1996 Karachi 144; Lutufullah Khan v. The State PLD 2015 Pesh. 115; Bashir Ahmad v. Zafrul-Islam PLD 2004 SC 298; Muhammad Sharif and 8 others v. The State and another 1997 SCMR 304; Sakhawat Ali v. The State and another 2003 YLR 245; Hakim Ali v. The State PLD 2006 Karachi 302; Nazeer Ahmed v. The State PLD 2009 Karachi 191; Choudhry Muhammad Adnan v. Mst. Erum and others 2011 SCMR 508; Dr. Abdul Aziz v. IInd C and FJ/JM South and another 2013 YLR 676; Hakim Mumtaz Ahmed and another v. The State PLD 2002 SC 590; Mst. Sughran Bibi v. The State PLD 2018 SC 595; Qaiser and another v. The State 2022 SCMR 1641; Ikramulah v. The State 2015 SCMR 1002; The State v. Imam Bakhsh 2018 SCMR 2039; Abdul Ghani v. The State 2019 SCMR 608; Kamran Shah v. The State 2019 SCMR 1217; Mst. Razia Sultana v. The State 2019 SCMR 1300; Faizan Ali v. The State 2019 SCMR 1649; Zahir Shah alias Shat v. State through AG KPK 2019 SCMR 2004; Haji Nawaz v. The State 2020 SCMR 687; Qaiser Khan v. The State 2021 SCMR 363; Mst. Sakina Ramzan v. The State 2021 SCMR 451; Zubair Khan v. The State 2021 SCMR 492; Gulzar v. The State 2021 SCMR 380; State of Islamic Republic of Pakistan through Deputy Attorney General for Pakistan v. Kenneth Marshal and 2 others 2005 SCMR 594; Gul Dast Khan v. The State 2009 SCMR 431; Amjad Ali v. State 2012 SCMR 577; Anwar Shamim and another v. The State 2010 SCMR 1791; Muhammad Ahmed (Mehmood Ahmed) v. The State 2010 SCMR 660; Safdar Ali V. Zafar Iqbal 2002 SCMR 63; Muhammad Shahid Khattak v. The State PLD 2013 Sindh 220; Muhammad Akbar v. State 1972 SCMR 335; Falak Sher v. State PLD 1967 SC 425; Bahadur Khan v. State 2006 SCMR 373 and Ashfaq v. Amir Zaman and others 2004 SCMR 1924 rel.

Wishandas Kolhi for Applicant.

Dhani Bakhsh Mari, Assistant P.G. for the State.

Francis Lucas Khokhar for Respondent.

Date of hearing: 6th February, 2025.

Order

Dr. Syed Fiaz-ul-Hassan Shah, J.---The Applicant Muhammad Sharif has filed present Criminal Miscellaneous Application under section 561-A of Criminal Procedure Code, 1898, against Order dated 21-09-2024 passed by learned Judicial Magistrate/Consumer Protection Court, Mirpurkhas whereby it has approved the "C" Class report filed by the Investigation Officer in FIR No.77/2024 under sections 506(ii), 147, 148,149,337-A(i), 337- F(i), 504, P.P.C at PS Taluka Mirpurkhas.

1. Brief facts of the case are that applicant lodged FIR bearing Crime No. 77/ 2024 under sections 506(ii),147,148,149,337-A(i),337-F(i), 504, P.P.C at PS Taluka Mirpurkhas stating therein that on 18-04-2020 at 09:30 a.m he went to his land for visiting purpose and was available there, where he saw that Qadir son of Qalander Bux having hatchet, Fazal Illahi son of Noor Muhammad having lath, Ameer Bux son of Qalander Bux having lath, Noor Ahmed son of Dost Muhammad having lath, Fateh Muhammad son of Abul Hassan having lath, Din Muhammad son of Abul Hassan having lathi, Shah Muhammad son of Abul Hassan, having lath, Sikander Ali son of Wali Muhammad having lath and Muhammad Khan son of Abul Hassan having lath (sticks) came there and after abusing caused him lathies injuries, due to which he fell down on the ground and then accused took him to the Jamrao, where his nephew Muhammad Ismail and Lutuf Ali came and rescued him. Then accused persons fled away while issuing threats of dire consequences. After completing investigation, Investigating Officer submitted final report under section 173, Cr.P.C for disposal of the case/FIR under cancelled "C" class, which was approved by learned Magistrate vide order dated 21-09-2024; hence this Criminal Miscellaneous application.

2. The Counsel for the Applicant contended that impugned order is bad on law and fact. The Judicial Magistrate has failed to appreciate that applicant was injured and Final Medical Certificate was issued by the Medical Officer Civil Hospital, Mirpurkhas. He further contended that I.O has failed to incorporate final medical certificate issued by the Civil Hospital, Mirpurkhas confirming the alleged injuries in its final report under section 173, Cr.P.C submitted before the Judicial Magistrate, for his administrative approval as such great injustice has been done with the Applicant. He further submitted that besides Sections 337A, 337(-F(i) read with Sections 504, 506(ii), 147,148 and 149, P.P.C have been added, however, the Investigation Officer has not incorporated the "Final MLC" issued by the Civil Hospital, Mirpur Khas and the learned Judicial Magistrate has ignored such aspect of the case while passing the impugned Order. He prayed that by granting this application, impugned order may be set aside and the case may be remanded with directions to Magistrate concerned to take cognizance of the crime and submits that the sections, as applied in this case, are exclusively triable by the Court of Sessions. In support of his contention, he placed reliance upon cases of Yousuf Ali Khan Ghouri v. The State through IX J.M. and 2 others (2018 YLR 1976), Saeen Bux v. Civil Judge and Judicial Magistrate Matiari and 9 others (2010 PCL 1060) and Pakistan Institute of Labour Education and Research and another v. Province of Sindh through Chief Secretary, Karachi and 4 others (2017 YLR Note 343).

3. On the other hand Mr. Francis Locus Khokhar Counsel representing Respondents Nos. 1 to 9 states that impugned order is passed in accordance with law and the Applicant is habitual in moving false applications leveling frivolous allegations. He further contended that the application filed by the Applicant under sections 22-A and 22-B of the Code before the Sessions Judge, Mirpurkhas and in the said application, the Applicant has mentioned that he was injured due to attack with hatchet while when the Applicant recorded his statement under section 154 Cr.P.C he has alleged injury due to lathi and due to such falsehood no interference is required by this Court.

4. I have heard the counsel for parties as well as learned Assistant Prosecutor General and examined the record. First of all, I would deal with the basic concept and statutory principles regulating criminal jurisdiction by High Court and then its scope and applicability of inherent jurisdiction of this Court under section 561-A of the Code in general and its application with the present case in particularity.

5. Statutory Principles of Criminal jurisdictions__A crime or offence is an illegal act, omission or event, whether or not it is also a violation of right, a tort, a breach of contract or a breach of trust, the principal consequence of which is that the offender, if he is detected and it is decided to prosecute, is prosecuted by or in the name of State and if he is found guilty, he is liable to be punished whether or not he is also ordered to compensate his victim. All criminal proceedings are in theory instituted before the Judicial Magistrate and conducted before the Magistrate or Court of Sessions with the exception of Courts of criminal jurisdiction operating under sphere of Special laws and enactments. In the contextualize framework, the High Court has multi-folded contour jurisdiction in dealing with criminal case such as constitutional__Revision__inherent. In its Constitutional jurisdiction, the High Court exercise powers under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, an extra-ordinary jurisdiction that may quash the FIR or investigation or stay criminal trial etc in extra-ordinary circumstances. Further, under Articles 202 and 203 of the Constitution, a High Court is empowered to frame High Court Rules and Orders enabling subordinate courts to regulate their proceedings as ordained by this Court. In addition to the Constitutional jurisdiction, a High Court exercise and regulate Revision jurisdiction to pass any order, which is essential for the "just decision of the case". Furthermore, a High Court exercise inherent jurisdiction in terms of Section 561-A, Cr.P.C. to prevent the abuse of process of law, interalia, quash the criminal proceedings and other ancillary issues. The said jurisdiction confers to this Court cannot be taken away in ordinary circumstances. Reliance in this regard is placed upon the dictums of august Supreme Court of Pakistan wherein it has been held:

"Jurisdiction of the superior Courts could not be abolished or ousted unless same was done by express, clear and unambiguous words or clear intendment".

1. Differentiation between Criminal Revision and Criminal inherent Jurisdiction__Both the provisions have different scope and function relevant to the juridical affect, legal treatment and consideration. For convenience, the provisions are re-produced as under:

| | | | --- | --- | | Section 439, Cr.P.C., 1898 | Section 561-A, Cr.P.C., 1898 | | (1) In the case of any proceeding the record of which has been called for by itself 5[\ \ ] or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 6[], 423, 426, 427 and 428 or on a Court by section 338, and may enhance the sentence" and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by section 429. (2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Where the sentence dealt with under this section has been passed by a Magistrate 1[\ \ \ \ \ \ ], the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed than might have been inflicted for such offence by 7[\ \ ] a Magistrate of the first class. 1[(4) Nothing in this section shall be deemed to authorise a High Court. (a) to convert a finding of acquittal into one of conviction. or (b) to entertain any proceedings in revision with respect to an order made by the Sessions Judge under section 439A.] (5) Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. 2[(6) Notwithstanding anything contained in this section, any convicted person to whom an opportunity has been given under subsection (2) of showing cause why his sentence should not be enhanced shall, in showing cause, be entitled also to show cause against his conviction.] | Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such order as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.] |

Now looking to the impugned Order in the light of above jurisprudence, it would appropriate to examine as to an application against an Order of Magistrate may lie in "Revisional Jurisdiction" or a High Court may entertain it in its "inherent jurisdiction". Obviously, if alternate remedy is available under the law, an inherent jurisdiction is not entertainable as discussed above. A great deal of uncertainty emerges on account of reading the jurisdiction, function and powers defined in the Code which embodied a Magistrate as "Court."

1. Nature and extendibility of Order of Magistrate__No doubt a Magistrate is a Court as defined under section 6 of the Code and an Order of Court is liable to be challenged in Revision jurisdiction. In contrast, the Shahnaz's Begum, a rule-making decision of Honorable Supreme Court, is the foundational structure of judicial interpretation with regard to the nature and value of the orders pass by a Magistrate while dealing with a Police Report/Charge Sheet/Challan under section 173 of the Code and held that inherent jurisdiction of a High Court under section 561-A of the Code, spanned over the judicial orders and not orders passed or steps taken during an investigation of a case. Later, the Hon'ble Supreme Court of Pakistan endorsed the Shahnaz's Begum case and drew distinction between administrative and judicial functions of the magistrate under the ibid Code and held that while passing an order of cancellation of a criminal case, the magistrate exercises administrative powers, thus not functioning as a court. Therefore, such an order was not amenable to Revisional jurisdiction. In consequence, I would discuss the instances about the "Revision" and "inherent power" while undertake the analysis of the functions and powers of Magistrate which has now been developed through judicial interpretation. When a Magistrate has to deal with the charge sheet/ Challan under section 173 of the Code or to dispose of any Police Report under any of the outlined situations based on unique facts of each case, it has been ruled by the Hon'ble Supreme Court that nature, scope and powers of the Magistrate are administrative, executive, or ministerial and he discharges these duties not as a Court but as a personal designate. Therefore, the Order pass by a Magistrate is not revisable being executive in nature.

2. Scope and Applicability of inherent jurisdiction__The applicability and scope of the inherent jurisdiction is curative in nature. The inherent jurisdiction can be attracted if no other remedy is available in other words where any other remedy is available, normally the inherent jurisdiction cannot be invoked and an application is outright to be dismissed. The Peshawar High Court while placing reliance on the dictum in Bashir Ahmed's case held that:

"The power under section 561-A, Cr.P.C. is extraordinary in its nature which could be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specially laid down by section itself, as its application in frequent and light manner would tend to circumvent the due process of law. The principles for invoking the inherent provision of section 561- A, Cr. P.C. have been enunciated by the honourable Supreme Court of Pakistan in case titled Bashir Ahmad v. Zafrul-Islam (PLD 2004 SC 298) which are binding in nature. Such power ought not to be exercised capriciously or arbitrarily, but should be exercised (ex debito justitiae) to do real and substantial justice for the administration of which alone Courts exist. The jurisdiction under section 561-A, Cr.P.C. is neither alternative nor additional in its nature and is to be rarely invoked only to secure the ends of justice so as to seek redress of grievance for which no other procedure is available but should not be used to obstruct or direct the ordinary course of Criminal Procedure. Such jurisdiction is designed to do substantial justice and the same is neither akin to appellate jurisdiction nor to the revisional jurisdiction. Such powers do not extend to uncalled for and unwarranted interference which the procedure prescribed by law, which must always be followed."

1. Inherent jurisdiction__conclusive remedy: In view of discussions, one or more findings whatsoever given by Magistrate in case suffers from perversity or dissatisfaction from such order, an aggrieved person should have invoked the jurisdiction of this Court under Section 561-A of the Code and it does not amenable to the Revisional jurisdiction being lacking the qualification of judicial order which may draw attention of a High Court to look into in exercise of Revisional Jurisdiction. To sum up the point under consideration, I held that the judicial interpretation makes it clear that the inherent jurisdiction can be invoked subject to a conditionality about no alternate remedy is available under the code against an administrative Order of Magistrate. The Applicant has filed present Criminal Miscellaneous Application by invoking jurisdiction of this Court under section 561-A Criminal Procedure Code, 1898 against an Order passed by Magistrate affirming the Police Report filed by the Investigation Officer under "C" Class. Looking to the above discussion and judgments of Apex Court, I therefore, hold that the Criminal Miscellaneous Application filed against the impugned Order passed by a Magistrate for cancellation of criminal case is maintainable before this Court in its inherent jurisdiction under section 561-A of the Code. It has been observed that initially the Respondent No.10/SHO has refused to register FIR against which the Applicant had filed Criminal Misc. Application No.400/2020 under Section 22-A of the Code, before the learned Additional Sessions Judge-I, Mirpurkhas with prayer to direct the SHO, PS Taluka, District Mirpur Khas to record his Statement and to register FIR against the Respondents Nos. 1 to 8. After hearing the parties, the learned Sessions Judge disposed of Criminal Miscellaneous Application No.400/2020 vide Order dated 14.05.2020 with direction to the SHO. PS Taluka, District Mirpur Khas to record the statement of the Applicant. The said Order dated 14.05.2020 was impugned by the Respondents Nos.1 to 9 before this Court in Criminal Miscellaneous Application No.S-193/2020 (New No.S-69/ 2024) and the Respondents have obtained ad interim Order on 20-05-2020. Since then matter was lingered on for considerable four years until the matter was finally came up for hearing on 21-07-2024 when my learned predecessor Judge has passed direction to the SHO concerned to record the statement of Applicant. Eventually, an FIR No.77/ 2024 was registered with PS Taluka, District Mirpur Khas.

2. Investigation__duties and veracity__After crossing the afore- mentioned abstruse barrier, the Applicant interacted with the Investigation Officer. Section 4(l) of the Code defines the term investigation: "Investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf." The Investigating Officer is head start of investigation to unequivocally determine the truthfulness or falsehood of the occurrence__accessory after the facts and that too without inspiring version of informant or defence but his conclusion must be based on .on actual outcome of reality__not merely possibility which he discovers or ascertain during determinative investigation. This determinative investigation is not an administrative process but it is requirement of law to do the justice by way of fair investigation based on truth and nothing else as held by the superior Courts and the relevant para is re-produced as under:

According to para. 3 of rule 25.2 of Police Rules, 1934, it is the duty of an Investigating Officer to find out the truth and his object shall be to discover the actual facts and for the achievement of such object he shall not commit himself prematurely to any view of the facts for or against any person.

1. Legitimacy of investigation__the study and reason made note of authoritative judicial interpretations, its propriety demand truth, transparency and fairness. The Honeble Supreme Court of Pakistan held that the provisions of section 173 Cr.P.C. are mandatory as their noncompliance constitutes violation of Articles 4 and 9 of the Constitution of Pakistan, 1973. A further guidance can be taken from the dictum of Honeble Supreme Court, the relevant parts are reproduced hereunder:

(v) During the investigation the investigating officer is obliged to investigate the matter from all possible angles while keeping in view all the versions of the incident brought to his notice and, as required by Rule 25.2(3) of the Police Rules, 1934 "It is the duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person."

(vi) .......

(vii) Upon conclusion of the investigation the report to be submitted under section 173, Cr.PC is to be based upon the actual facts discovered during the investigation irrespective of the version of the incident , advanced by the first informant or any other version brought to the notice of the investigating officer by any other person.

1. Case property__I have noticed that the criminal investigation is dependent upon two fold fora to find out truthfulness.actual facts along with its recovery, seizure, if any, and handling case property together with the legal scrutiny and endorsement by the prosecution in criminal cases. Unfortunately, the standard of criminal investigation is deteriorating despite the gracious budgeting by the State. This imminent dangerous violation is regularly being examined, monitored and reminded by the superior Courts in pursuit to adhere administration of criminal justice system and dispensation of justice. Conversely, absence of "case property" may not only fatal for prosecution in order to prove the case but ultimately it can form basis of acquittal from the charge.

2. Case Property___Stages___It is mandatory for the Prosecution to undergo two tests for "case property". Firstly to recover, seize, present in charge sheet or challan and to establish safe custody by preparation of documents flawless in description, accuracy and status and secondly, safe transmission of it under proper documents and production before the Court as an admissible evidence.

3. Recovery, Seizure of Case Property__legal significance and importance__in our adversarial framework of criminal justice system, the pivotal role of "case property" and its essential un-solving crisis in many criminal cases are indiscernible under investigation and Police file(s) exclusively compile by the Investigation Officer. Any anomaly or defect in investigation may usually led to draw a negative inference reckon definite reason of either unskillfulness-capacity building-or mala fides. The Police Rules, 1934 impose comprehensive duty and burden to the Investigation Officer for seizure, recovery of case property and its safe handling and production before the Court whilst linchpin supervisor of investigation with further responsibility of legal scrutiny by the prosecutor. The guidance can be taken from the dictum laid down by Honeble Supreme Court of Pakistan, the relevant portion is re-produced:

The Rule 22.16 of the Police Rules, 1934

("the Police Rules") deals with the "case property".

Sub-rule (1) thereof provides, inter alia, that in certain circumstances, police shall seize weapons, articles and property in connection with criminal cases, and take charge of property which is unclaimed. Sub-rule (2) thereof provides, inter alia, that each weapon, article or property (not being cattle) seized under the above sub- rule shall be marked or labelled with the name of the person from whom, or the place where, it was seized, and reference to the case diary or other report submitted from the police station. If articles are made up into a parcel, the parcel shall be secured with sealing wax, bearing the seal impression of the responsible officer, and shall similarly be marked or labelled. Such articles or parcels shall be placed in safe custody, pending disposal as provided by law or rule. Sub-rule (3) thereof provides, inter alia, that the police shall send to headquarters or to magisterial outposts all weapons, articles and property connected with cases sent for trial, as well as suspicious, unclaimed and other property, when ordered to do so by a competent Magistrate. Sub-rule (4) thereof provides, inter alia, that motor vehicles detained or seized by the police in connection with cases or accidents shall be produced before a Magistrate after rapid investigation or by means of in-complete challan.

Rule 22.18 of the Police Rules deals with "custody of property".

Thus, under the Police Rules and the High Court Rules, mentioned above, in all cases, especially in the cases of articles sent to the chemical examiner, it is necessary that there be no doubt as to what person or persons have had charge of such articles throughout various stages of the inquiry. Besides, the person who packed, sealed, and dispatched such articles should invariably be examined. Further, the clothes, weapons, money, ornaments, food and every other article that forms a part of the circumstantial evidence has to be produced in court, and their connection with the case and identity should be proved by witnesses.

1. Description of Case property__The prescribed Performa is enforced in the light of Rule 25.56 of the Police Rule, 1934. The description of "case property" is required under the Police Rules, 1934 and it ought to be mentioned at Column No.6 of the Charge Sheet/Challan/Police Report. The guidance can conveniently be taken from the Hon'ble Supreme Court case; the relevant portion is re-produced:

Thus, the Police Rules mandate that case property be kept in the Malkhana and that the entry of the same be recorded in Register No. XIX of the said police station. It is the duty of the police and prosecution to establish that the case property was kept in safe custody, and if it was required to be sent to any laboratory for analysis, to further establish its safe transmission and that the same was also recorded in the relevant register, including the road certificate, etc. The procedure in the Police Rules ensures that the case property, when is produced before the court, remains in safe custody and is not tempered with until that time. A complete mechanism is provided in Police Rules qua safe custody and safe transmission of case property to concerned laboratory and then to trial Court.

1. Case property___handling and presentation___The filing of Charge sheet or Police report along with details of case property before the Magistrate is a mandate of law. The Scheme of law forced the Investigation Officer to regard investigation as determinative of the principles from which deductions could be made out about "case property" to ruminate over the implications at a point of handing down decision. The method and manners of Investigation Officer dealing with the "case property" in a criminal case illustrate definitive conditions of each criminal case according to its peculiar facts and circumstances. There are countless examples to look at that a criminal investigation with strategic compliance of law.recovery and handling of case property as per Police Rules and presentation as per requirement of section 173 of the Code which is backed by law and recognized by Supreme Court of Pakistan through judicial doctrine "safe custody and safe transmission of case property". Both terms are a collective text and undergo to achieve the course of prove of the case based on rational truthfulness. The realistic decision-making mechanism between the two stakeholders of criminal justice system (Police-cum- investigation and Prosecution) is essential for improvising the confidence over criminal justice system, economic success and prevention of human rights across the country.

2. Safe custody and safe transmission of case property___In addition to the imposition of duty and responsibility for recovery of case property and safe custody of such case property during investigation, the final stage is its production before the Court during evidence to prove the case of prosecution.

3. Right of victim__case property__One's failure to obey and follow requirement of law may result in acquittal of case(s) due to any act or omission__fault or defect__or willful negligence of Investigator or Prosecutor by Court of law. This fundamentally opposite to the experience(s) suffers from some adverse circumstance(s) by a victim and an unfortunate person or even sometime State itself. Although it does not a case of miscarriage of justice under the operative jurisdiction regulate by Court of laws but strenuously it is dilemma of defective investigation and prosecution. The law recognizes few rights of victim such as the right of fairness, dignity and respect in the course of criminal justice proceedings and legal right to be heard, informed and to be presented in various stages within criminal justice system and finally the right to compensate. Additionally, a right to protection from intimidation and harassment a recent enactment(s) at federal and provincial levels in Pakistan.

One may not ignore it assuming theoretical hypothesis but obligate as rationale__as in many cases the Hon'eble Supreme Court acquitted the Accused by holding that:

"the gold articles said to be the belonging of the deceased were neither got identified in accordance with law nor exhibited in the trial, and as such, reliance on the same and awarding capital punishment would not at all be justified."

In another case held that:

"the prosecution miserably failed to produce and exhibit the case property though many opportunities were afforded by the trial Court; in such circumstances, it was rightly held by the High Court that there was no possibility of the accused being convicted and continuation of trial against them would be an abuse of the process of the Court."

In another case held that

"it would not be out of place to mention that the case property in that case has neither been exhibited nor produced at the trial, causing a dent in the prosecution's case."

In another case

"it was held that admittedly the case property, the stepony of the car was never produced during trial to verify as to whether it could contain such a huge quantity of the narcotics in question; the referred elements of doubt surrounding the prosecution case have led us to hold that the prosecution has failed to prove its case beyond reasonable doubt to sustain conviction."

1. Consequential legal ways of case property__The reason of above mentioned analogy is the scheme of law which provides mechanism at every form of criminal case. For instance:

a. Case Property is existing

b. Case property is not existing

c. Case property was existed but removed or converted or destroyed

d. Case property is or was existing but avoidable circumstances prevented the Investigation Officer. For instance; (i) Accused is Absconder (ii) Accused has obtained Bail (iii) Remand could not procured etc

It cannot be casually ignored while looking oppositely as law prescribed stern punishment for the defective investigation i.e. breach of duties, false investigation or without diligence, greediness or mala fides or misconductof the Investigation Officer and even he shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both and that too through a summary proceedings. It is not the scheme of law that any Investigation Officer intentionally left empty the column of "case property". The collective wisdom of various provisions of the Code as mentioned above, law demands that the Investigation Officer must give details of availability or plausible reason for non-availability during the course of his investigation. Therefore, a Magistrate has to look into the charge sheet/ police report carefully while dealing with the charges involving "case property" and should ask the explanation from the Investigation Officer according to the above-mentioned situations backed by procedural provisions of the Code.

1. The Investigation Officer has not placed Police Report as required under section 173 of Code and the relevant column of "case property" is BLANK. For the convenience of understanding, it would appropriate to produce the sample Performa of Charge sheet/Challan hereunder:

FORM No. 25.56

CHARGE SHEET

District_______ Charge Sheet No.___________ dated____________ 19______

Police Station________ in first information No. _________dated:_______

| | | | | | | | | --- | --- | --- | --- | --- | --- | --- | | 1 | 2 | 3 | 4 | 5 | 6 | 7 | | | | Name and Addresses of Accused Persons an for Trail | | | | | | Name Address and occupation of complainant or information | Name and addresses of accused persons not sent up for trial, whether arrested or not arrested, including absconders, (show absconders in red ink) | In custody | On bail recognizance | Property (including weapons) found, with particulars of where, when and by whom, found and whether forwarded to Magistrate | Names and addresses of witnesses | Charge of information: Name and offence and circumstances connected with it, in concise detail, and under what section of the law charged | | ------- | ------- | ------- | ------- | ------- | ------- | ------- |

Dispatched at A.M./P.M. on _________19 Signature of Investigation Officer

The above lengthy discussion and analysis of the present case finds that the investigation has conducted in violation of law, Police Rules and settled principles of august Supreme Court of Pakistan. This is not permissible for the Investigation Officer under the existing scheme of law. The Investigation Officer has failed to recover the "case property" (lathi or hatchet) or alternatively failed to give plausible reason for non-recovery.

1. Importance of Medico-Legal Certificate or report__Furthermore, the Investigation Officer has deliberately thrown in garbage the Final Medico Legal Certificate issued by the Medical Officer, Civil Hospital, Mirpurkhas despite the factum that it has mentioned that the Applicant has sustained injury falling under Sections 337-A and 337F(i) Pakistan Penal Code, 1860. Surprisingly, the Police report which is the opinion of Investigation Officer about the case, has been filed without mentioning penal provisions of law reckoning in the FIR and without reference as to said penal provisions may or may not be established in the opinion of the Investigation Officer in his said Police Report under "C" Class. Similarly, the Office of the DPP, Mirpur Khas has flagrantly violated the Pre- Indictment Review process and has remotely forwarded the challan without completion of basic ingredients and legal requirements of the case. The Investigation Officer has even intentionally not considered that these penal provision of law are enumerated in the relevant column of FIR by the SHO concerned after due consideration on the Medico Legal Certificate and for this reasons the SIP Zubair Solangi has not recorded the Statement under section 161 of the Code of the Medical Officer, Civil Hospital, Mirpur Khas and he failed to unearth the truth so also he has not examined the Duty Officer who had lodged FIR invoking the penal provisions of injuries. Consequently, the Final Police report of "C" Class prepared by SIP Zubair Solangi does not show the Medical Officer or Duty Officer in the calendar of witnesses in violated the Police Rule. The relevant Rule is re- produced:

Rule 25.19 25.19. Medico-legal opinion.__

(1) When a medical opinion is required in police cases, the persons to be examined shall be produced before the highest medical authority available on the medical staff of the district. accessible, medico-legal cases shall be sent there and not to a rural dispensary.

Rule 25.20 25.20. Wounded complaints and witnesses.

(1) When a complaint or a witness of importance in an important case is seriously ill or is wounded, but does not appear to be dying, the police officer making the investigation shall prepare a charge-sheet in accordance with Rule 25.56(1) if this has not already been done and shall either .

(a) with such persons' consent, send him or her, for medical treatment to the station of the magistrate having jurisdiction and invite such magistrate to take magistrate to take such person's deposition in the presence of the accused person or, Investigation Officer.

(b) if such complainant or witness cannot be moved, or refuses to be sent, such officer shall apply for an order of detention in respect of the accused person if he is in custody and such order is necessary, and invite the magistrate having jurisdiction to record the deposition of such complainant or witness in the presence of the accused person at the place where the former is lying.

1. Nature of "A", "B" and "C" Class Rules.It is the requirement of law that after completion of investigation, the Investigation Officer would have to place Police report before the area Magistrate about truthfulness or falsehood of the case and it does not permit the Investigation Officer to ignore or hide the truth and concealed the record. Now turning towards the nature and scope of "C" Class report, one should bear in its mind that the Bombay Presidency Police Rules were enforced when the Province of Sindh was the part of Bombay Presidency. The Rules provides alternative mechanism for the disposal of criminal cases when any criminal case, in the opinion of Investigation Officer cannot try on the basis of final Police report before the competent court of law for taking cognizance and trial. In this historical background, the said rules are still applicable and serve the purposes to regulate criminal case through three alternative ways for disposal of any criminal case which are distinct to each other in its nature and are prescribed as A class; B class; and C-class.

2. Investigation Officer Mandatory response__A retrogressive investigation__one that is devoid of a requirement of law or Police Rules or failure to proper legal endorsement by the prosecution__only tends to perpetuate the crises for the Criminal Justice System. For diverse reasons, which are obvious, depend on merits of each case, a complete mechanism is provided under the law regarding the relationship of the Investigation Officer with the case property which are interdependent on each other and escape or intentional departure cannot casually be ignored by a Magistrate while supervising Investigation or dealing with the Cancellation of FIR as has been eye-washed in the present case.

3. Discretionary Power of Magistrate__Simultaneously, a Magistrate is not bound by the Police Report for disposal of the case under any class or oppositely taking cognizance of the case. The law has interpreted the word 'may' which has been used in Section 173 Criminal Procedure Code that Magistrate always vests competence to agree or disagree with the police report under Section 173 Criminal Procedure Code. This has been the reason for legally established principle of Administration of Justice that an opinion of the investigating officer is never binding upon the Magistrate dealing with Police report, forwarded under section 173 of Criminal Procedure Code. On presentation of Police report, the Magistrate to deal with Police Report describes under Section 190, Cr.P.C., being relevant, which reads as under;

"Section 190. Cognizance of offences by Magistrates. All Magistrates of the first class, or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court may take cognizance of any offence;

(a) upon receiving a complaint of facts which constitute such offence.

(b) upon a report in writing of such facts made by any Police officer, (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion."

(1) that such offence has been committed which he may try or send to the Court of Session for trial and

(2) A Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to the Court of Session for trial.

1. Treatment of police report by Magistrate__There is no obligation on the Magistrate to accept the report if he does not agree with the opinion formed by the police. The power to take cognizance notwithstanding the formation of opinion by the police which is the final stage in the investigation has been provided in section 190(1)(c), Cr.P.C. When a report forwarded by the police to a Magistrate under Section 173(2)(i) is placed before him several situations arise. The Magistrate is required to apply his mind in order to ascertain as to whether the case is one which he is required to send for trial to the Court of Session or he can proceed to try himself. Section 337-f(1) of the Pakistan Penal Code (P.P.C) is triable by Court of sessions. This section deals with injuries that cause the skin to rupture and bleed, also known as "Ghayr-jaifah". Therefore, the Magistrate should abstain deeper appreciation and only to give consideration to a prima facie assessment of the facts about the commission of offence or otherwise. In other words, if tentative assessment of available record prima facie constitute commission of a cognizable offence, it ought to take cognizance of criminal case and normally or remotely not to dispose of under "B" or "C" class on the basis of recommendation of the police. The law on the related issues is expanded to another avenue as held by the Honeble Supreme Court that re-investigation after the submission of Challan/Charge Sheet and during the trial of the offence, though disapproved, yet it is not legally barred.

2025 M L D 1508

[Sindh (Larkana Bench))]

Before Nisar Ahmed Bhanbhro, J

Bakhtiar Ali Domki---Appellant

Versus

The State---Respondent

Criminal Appeals Nos. S-80 and S-81 of 2023, decided on 26th May, 2025.

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

----Ss. 302, 114 & 34---Sindh Arms Act (V of 2013), Ss. 23(i)(a) & 25---Qatl-i-amd, abettor present when offence committed, common intention, possession of illicit weapon---Appreciation of evidence---Benefit of doubt---Motive not proved---Scope---Accused was charged for committing murder of the brother of complainant by firing---Per prosecution story motive behind the commission of murder of deceased was dispute over landed property---Prosecution witnesses in the case were brothers of deceased, in their evidence recorded before Trial Court complainant deposed that the disputed land was agricultural and situated in C-(Chhatt) in Baluchistan Province and the said land was cultivable on rain water---Other witness deposed that disputed land was a plot of 5000 square feet situated in DMJ-(Dera Murad Jamali) Baluchistan---Said contradiction in the statement of prosecution witnesses being real brothers was material in nature, as the witnesses failed to mention the particular location of the land, as such an inference could be drawn that there existed no dispute over lands between deceased and accused party---Even to the admission of both the witnesses that no any case of civil nature was lodged against the accused persons---Even the title of lands or plot was not brought on record of Trial Court to establish that land or plot actually belonged to deceased on which the dispute was going on between the parties---No any witness from the place where the alleged land was situated was examined to lend support to the prosecution claim and to establish the motive that prompted the accused to assassinate the brother of complainant---Motive of the case remained shrouded in mystery and could not be established by the prosecution to believe that deceased was done to death for an enmity on lands---Circumstances established that the prosecution had failed to prove its case against the appellant beyond shadow of reasonable doubt---Appeal against conviction was allowed, accordingly.

Amin Ali v. The State 2011 SCMR 323; Safdar and 3 others v. The State 2006 PCr.LJ 1870; Qurban Ali v. The State 2024 PCr.LJ 1601; Shakeel Ahmed Memon v. The State 2020 PCr.LJ Note 73 and Afaq Ahmed v. The State 2020 YLR 676 ref.

Tariq Mehmood v. The State 2025 SCMR 780 rel.

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

----Ss. 302, 114 & 34---Sindh Arms Act (V of 2013), Ss. 23(i)(a) & 25---Qatl-i-amd, abettor present when offence committed, common intention, possession of illicit weapon---Appreciation of evidence---Benefit of doubt---Delay of 27 hours in lodging the FIR---Consequential---Accused was charged for committing murder of the brother of complainant by firing---Complainant as per prosecution story had deposed in the Court that incident occurred in his presence and he identified the perpetrators of the crime as appellant and co-accused who came there at about 12:00 Noon on 08.05.2021 and fired upon deceased with pistol upon the instigation of co-accused---Injured was taken to hospital but succumbed to injuries in the way---Complainant informed the police about the incident promptly and police party from Police Station concerned reached the hospital, inspected dead body, inspected place of incident and after post mortem handed over the dead body to the complainant---Matter of record that complainant and witnesses remained with the police party for about more than three hours but they did not record the facts of incidents to the police and turned up to record FIR on next day viz. 09.05.2021---First Investigating Officer deposed that he asked the complainant to record FIR but he refused and said that he would lodge the FIR later on after consultation---First Information Report of the incident was recorded on 09.05.2021 at about 03.00 pm with a delay of about 27 hours, which remained unexplained---Circumstances established that the prosecution had failed to prove its case against the appellant beyond shadow of reasonable doubt---Appeal against conviction was allowed, accordingly.

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

----Ss. 302, 114 & 34---Sindh Arms Act (V of 2013), Ss. 23(i)(a) & 25---Qatl-i-amd, abettor present when offence committed, common intention, possession of illicit weapon---Appreciation of evidence---Benefit of doubt---Presence of eye-witnesses at the time and place of occurrence not proved---Accused was charged for committing murder of the brother of complainant by firing---Complainant had claimed enmity with co-accused "MD" but the evidence of Medical Officer told a different story, he deposed that the dead body was brought to hospital by sons of co-accused "MD"---Question arose that had the co-accused "MD" and his brothers committed murder, why his sons would have been present at the place of incident and removed the dead body to hospital---Inference could be drawn that the eye-witnesses were not present at the place of incident when that incident occurred and appeared at police station later and recorded the FIR---Circumstances established that the prosecution had failed to prove its case against the appellant beyond shadow of reasonable doubt---Appeal against conviction was allowed, accordingly.

Muhammad Jahangir's case 2024 SCMR 1741 rel.

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

----Ss. 302, 114 & 34---Sindh Arms Act (V of 2013), Ss. 23(i)(a) & 25---Qatl-i-amd, abettor present when offence committed, common intention, possession of illicit weapon---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Inconsistency---Accused was charged for committing murder of the brother of complainant by firing---Eye-witness deposed that the deceased sustained four injuries, while per statement of Medical Officer deceased sustained five injuries which were through and through---Said witnesses deposed that deceased died while in the way to Hospital, but per deposition of Medical Officer, deceased died instantaneously---Circumstances established that the prosecution had failed to prove its case against the appellant beyond shadow of reasonable doubt---Appeal against conviction was allowed, accordingly.

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

----Ss. 302, 114 & 34---Sindh Arms Act (V of 2013), Ss. 23(i)(a) & 25---Qatl-i-amd, abettor present when offence committed, common intention, possession of illicit weapon---Appreciation of evidence---Benefit of doubt---Preparation of memos---Inconsistencies---Accused was charged for committing murder of the brother of complainant by firing---Investigating Officer, who conducted the initial investigation, prepared inquest report in hospital, prepared memo of inspection of injuries, secured last worn clothes of deceased, handed over the dead body to complainant, visited place of incident and prepared inspection memo on the very day in the company of complainant and witness through a Roznamcha Entry 9-A which he produced before Trial Court while recording his evidence to establish that he departed from the police station soon after the incident---Page number 02 of Roznamcha/entry book produced by this witness evidenced all entries in the book on the relevant day started from entry No 4 to 9, there was no other entry having A, B except that entry, which created doubt on the movement of said witness from police station and recording of the memos in presence and company of complainant party, it appeared that all the memos were managed at police station---Second Investigating Officer denied of existence of such entry in police record---Said witness deposed that at police station roznamcha entries were recorded in acceding order of 1,2,3 and not by 1A, 1B---Said witness deposed that there was no any entry 9-A available in police station or shown to him by first Investigating Officer---Such piece of evidence rendered by second Investigating Officer belied the movement and departure of first Investigating Officer from Police Station to the place of incident and hospital---Circumstances established that the prosecution had failed to prove its case against the appellant beyond shadow of reasonable doubt---Appeal against conviction was allowed, accordingly.

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

----Ss. 302, 114 & 34---Sindh Arms Act (V of 2013), Ss. 23(i)(a) & 25---Qatl-i-amd, abettor present when offence committed, common intention, possession of illicit weapon---Appreciation of evidence---Benefit of doubt---Contradictions in the statement of witnesses----Accused was charged for committing murder of the brother of complainant by firing---First Investigating Officer deposed that he went to place of incident where blood was found but it was not in a position to be secured for laboratory analysis---Seven empty shells of 30 bore TT pistol were secured from the place of incident and sealed on spot in presence of complainant and witnesses---Surprisingly second Investigating Officer had deposed that bloodstained earth was collected from the place of incident and sent to laboratory for analysis wherefrom report was received that it was a human blood---Said dishonest improvements and exaggerations in the prosecution case created serious dent in the story, for which the benefit hadto be given to the accused who was blue eyed child of the criminal law---Circumstances established that the prosecution had failed to prove its case against the appellant beyond shadow of reasonable doubt---Appeal against conviction was allowed, accordingly.

Muhammad Akhtar and others v. The State 2025 SCMR 45 and Muhammad Riaz and others v. The State 2024 SCMR 1839 rel.

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

----Ss. 302, 114 & 34---Sindh Arms Act (V of 2013), Ss. 23(i)(a) & 25---Qatl-i-amd, abettor present when offence committed, common intention, possession of illicit weapon---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence and crime empties---Inconsequential---Accused was charged for committing murder of the brother of complainant by firing---Recovery witness deposed that appellant was arrested on 16.05.2021 from Eidgah Chowk, pistol was secured from his shalwar fold and such recovery memo was prepared by first Investigating Officer in presence of witnesses at 05.00 pm---Second Investigating Officer did not depose a single word in examination in chief about arrest of accused and recovery of TT pistol from possession of appellant in murder case wherein he produced memo of recovery and arrest, forensic and ballistic reports---However in offshoot case, said witness deposed that recovery was affected from the accused in presence of witnesses from Eidgah Road---Said contradictory versions of the witness in two cases belied the recovery proceedings---Report of Chemical Laboratory that empties matched with the recovered weapon was also of no significance as crime empties were sent to forensic laboratory on 19.05.2021 along with TT Pistol allegedly recovered on 16.05.2021---To establish that the empties were actually recovered from the place of incident, the sealed parcel should have been sent on the day of incident, but actually was sent on 19.05.2021 along with recovered pistol which created doubt as to the safe custody of case property, thus casted doubt and rendered chemical report inadmissible in evidence---Circumstances established that the prosecution had failed to prove its case against the appellant beyond shadow of reasonable doubt---Appeal against conviction was allowed, accordingly.

Muneer Malik v. The State 2022 SCMR 1494 rel.

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

----Ss. 302, 114 & 34---Sindh Arms Act (V of 2013), Ss. 23(i)(a) & 25---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, abettor present when offence committed, common intention, possession of illicit weapon---Appreciation of evidence---Benefit of doubt---Withholding material witness---Effect---Accused was charged for committing murder of the brother of complainant by firing---Complainant in his evidence and FIR alleged that the incident had taken place during the peak hours of the day and witnessed by two witnesses and complainant himself---One of the witnesses was brother of complainant and other was his relative---Relative of complainant was not examined during trial, he was neither given up nor summoned to appear in the witness box---Evidence of said witness was crucial for the prosecution case as two other witnesses were brothers inter se and inimical towards accused---Non examination of the said witness led to a presumption that his appearance in the witness box would not have favored prosecution, as envisaged under Art.129(g) of the Qanun-e-Shahadat Order, 1984---By withholding that best piece of evidence the prosecution itself created a doubt in its story, benefit of which would accrue in favor of the accused as a matter of right---Circumstances established that the prosecution had failed to prove its case against the appellant beyond shadow of reasonable doubt---Appeal against conviction was allowed, accordingly.

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

----S. 154---First Information Report---Delay in lodging the FIR---Scope---Mere delay in registration of FIR would not be fatal to the prosecution case, but prosecution is required to furnish plausible explanation in that regard; missing such factor creates dent in the prosecution story.

Abdul Qadeer v. The State 2024 SCMR 1146 rel.

(j) Criminal trial---

----Assumption and presumption---Conviction---Scope---Conviction cannot be recorded on the basisof mere assumptions and presumptions, surmises and conjectures.

(k) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance creating reasonable doubt in the prudent mind appears in the prosecution case, it would be sufficient to discredit the prosecution case---Existence of multiple circumstances is not required.

Rehmatullah and 2 others v. The State 2024 SCMR 1782 rel.

Sadam Hussain Kalhoro for Appellant (in Criminal Appeals Nos. 80 and 81 of 2023).

Nihal Khan, Saeed Ahmed Dashti for the Complainant (in Criminal Appeal No. 80 of 2023).

Muhammad Noonari Deputy Prosecutor Gneral, Sindh for the State.

Date of hearing: 19th May, 2025.

Judgment

Nisar Ahmed Bhanbhro, J.---Through this common judgment I, propose to decide the fate of captioned Appeals Nos. 80 of 2023 and 81 of 2023 filed by the appellant/ Convict Bakhtiar Ali Domki, as both the appeals are result of the conviction in a murder case and offshoot recovery case of weapon used in the commission of crime passed by the same Trial Court. The Appellant / Convict through these appeals has attacked the judgment dated 29-08-2023 passed by the Court of Learned Additional Sessions Judge-I/MCTC Jacobabad (Trial Court) in Sessions Case No 334 of 2021 and Sessions Case No. 237 of 2021 Re "The State v. Bakhtiar Ali Domki". In Appeal against conviction bearing number 80 of 2023 the appellant has been convicted for the charge of an offence punishable under sections 302, 114, 34, P.P.C and sentenced to suffer Rigorous Imprisonment (RI) for life and to pay compensation amount of Rs.10,00,000/- to the legal heirs of deceased, in failure thereof to further suffer Simple Imprisonment (SI) for one year, with the benefit of section 382-B, Cr.P.C. In Appeal against conviction bearing number 81 of 2023 Appellant has been additionally convicted for the charge of an offence punishable under sections 23(i)(a) and 25 of Sindh Arms Act, 2013 and sentenced to suffer Rigorous Imprisonment for 10 years and imposed fine of Rs. 50,000/, in default of payment of fine to further suffer Simple Imprisonment for One Year more.

1. Facts germane to prosecution story as narrated in FIR lodged 09.05.2021, by complainant Qurban Ali on are that there was dispute between the Complainant and accused Mazari Domki parties on landed property. Saith Ali brother of complainant came to visit him at Jacobabad on 08.05.2021. Complainant along with Seengar Ali, Saith Ali and Saddam Hussain went to Mouladad bus stop/Anaj (grain) Mandi chowk, to see off Saith Ali for Baluchistan. They were waiting for transport when at about 12:00 noon time, accused Bakhtiar, Bilawal and Mazari, all by caste Domki came there. On instigation of accused Mazari Domki, accused Bakhtiar and Bilawal took out TT pistols from shalwar fold and accused Bakhtiar fired TT pistol shots at Saith Ali, which hit him on his right side of chest, accused Bilawal on instigation of accused Mazari fired TT pistol shots at deceased Saith Ali, which hit him on right side of neck, right shoulder and right side of chin, who fell down the ground. Due to fear of weapons complainant party remained silent. Accused made escape good to northern side after commission of crime. Complainant arranged vehicle and removed Saith Ali to Civil Hospital Jacobabad in injured condition. He informed police about the incident, Saith Ali succumbed to injuries on way to Hospital. On arrival at Civil Hospital Jacobabad, Police of City Police Station arrived there and conducted necessary formalities at hospital. After post-mortem dead body was handed over to complainant for burial. After performing burial rituals of deceased, complainant appeared at police station and recorded his complaint against the accused named above due to annoyance over landed property committed the murder of deceased Saith Ali.

2. Investigation took its course, Investigation Officer inspected the place of incident, recorded 161, Cr.P.C statements of prosecution witnesses, arrested the nominated accused Bakhtiar Ali and recovered weapon used in the commission of crime. Separate FIR No 45 of 2021 at Police Station City Jacobabad under sections 23(i)(a) and 25 of Sindh Arms Act 2013 was recorded by the IO Sikandar Ali on behalf of state. I.O. sent bloodstained earth, bloodstained clothes, recovered empties and crime weapon for forensic analysis. On completion of investigation IO submitted separate reports under section 173, Cr.P.C before the concerned Magistrate. The Learned Magistrate on taking cognizance of case and completion of formalities sent up both the cases before the Court of Learned Sessions Judge, Jacobabad for disposal in accordance with law, which were made over to the Learned Trial Court.

3. Both the cases were tried separately,in compliance to requirement of section 265-C, Cr.P.C police papers were supplied to the accused, he was indicted for Charge, to which he pleaded not guilty and claimed Trial. In Sessions Case No 334 of 2021 to prove the charge of murder, prosecution examined PW-1 Tapedar Kamil at Ex.09, he produced sketch of the place of incident, PW-2 Complainant Qurban Ali at Ex.10, he produced copy of receipt of receiving dead body of deceased Saith Ali and FIR, at Exs.10-A to 10-B, respectively, PW-3 Seengar Ali at Ex.11, he produced memo of dead body of deceased at Ex.11-A, danistnama (inquest report) at Ex.11-B, memo. of wardhat at Ex.11-C, PW-4 PC Ali Aijaz at Ex.12, PW-05 Ghulam Murtaza at Ex.13, he produced attested photostat copies of roznamcha entries Nos.4,5,6,7,8,9 and 09-A (one Sheet) at Ex.13-A, attested photo state copies of roznamcha entries Nos.11,12,13,14,15 and 16 (one Sheet) at Ex.13-B, dead body inspection form at Ex.13-C, memo. of blood stained clothes of deceased at Ex.13-D, PW-6, Dr.Bilal Ahmed at Ex.14, who produced post mortem report of deceased at Ex.14-A. PW-7 PC Ahsan Ahmed at Ex.15, he produced memo of arrest and recovery at Ex.15-A, memo. of place of wardhat of recovery and arrest at Ex.15-B, PW-08 SIP Sikander Ali at Ex.16, he produced roznamcha entries Nos.18,19 and 20 (one sheet) at Ex.16-A, CR.41.2021 dated 17.05.2021 at Ex.16-B, permission letter of SSP Jacobabad at Ex.16-C, attested photo state copy of FIR No.45/2021 at Ex.16-D, roznamcha entry No.15 at Ex.16-E, roznamcha entries Nos.18 and 19 (one sheet) at Ex.16-F, ballistic expert report at Ex.16-G, chemical report at Ex.16-H. Thereafter, learned DDPP for State closed side of prosecution evidence vide statement at Ex.17.

4. In Sessions Case No. 237 of 2021 to prove its case for the charge of recovery of illicit weapon used in the commission of murder, prosecution examined PW-1 PC Ahsan Ahmed at Ex.5, he produced carbon copy of memo. of arrest and recovery at Ex.5-A, carbon copy of memo. of inspection of place of recovery and arrest at Ex.5-B, PW-02 SIP Sikander Ali at Exs.6, he produced Copy of FIR at Ex. 6-A, attested copy of roznamcha entries Nos.18,19 and 20 (two pages) at Ex.6-B, ballistic expert report at Ex.6-C. Thereafter, learned DDPP for State closed side of prosecution evidence.

5. Statement of accused under section 342, Cr.P.C was recorded at Ex.18, wherein he denied prosecution allegations, professed innocence. He did not examine himself on oath under section 340(2), Cr.P.C. He produced two photographs of "Vsh" News Jacobabad which show that some armed persons fired in Anaj Mandi in which one Saith Domki has been murdered, and he also examined defense witness namely LPC Feroz Gul, but he only brought some original entries and documents, as per his evidence, he stated in his cross that he has been posted at PS City Jacobabad for last 9 months. Thereafter, learned defense counsel closed the side of defense evidence,vide statement at Ex.20. Accused professed innocence and prayed for justice. Learned Trial Court after hearing the Prosecution and Defense convicted the appellant and sentenced him to suffer RI for Life and pay compensation amount of Rs. 10,00,000 to Legal Heirs of deceased, in default of payment to further suffer SI for One Years for the charge of offence under section 302(b), P.P.C. The Appellant was also convicted for the charge of an offence under sections 23(i)(a) and 25 of Sindh Arms Act, 2013 to suffer RI for Ten years and pay fine of Rs. 50,000, failure thereof to pay fine to suffer SI for one year more.

6. Mr. Sadam Hussain Kalhoro, Learned Counsel for the appellant contended that the prosecution has failed to prove its case beyond shadow of doubt. There are glaring contradictions and improvements in the prosecution story. He contended that the incident has taken place during day time at 12:00 noon in a busy place over bus stand in Jacobabad City but none from the public has been cited as witness. The medical evidence is at variance to the ocular furnished through FIR and statement of the prosecution witnesses. The recovery of pistol has not established as both the witnesses of recovery have contradicted each other on material points. The witnesses in the case are set up and interested and the motive as alleged has not been proved. He placed reliance upon the case of Amin Ali v. The State (2011 SCMR 323), Safdar and 3 others v. The State (2006 PCr.LJ 1870), Qurban Ali v. The State (2024 PCr.LJ 1601), Shakeel Ahmed Memon v. The State (2020 PCr.LJ Note 73) and Afaq Ahmed v. The State (2020 YLR 676). He prayed for acquittal of the appellant/convict.

7. Mr. Muhammad Noonari Deputy Prosecutor General, Sindh assisted by M/s. Nihal Khan and Saeed Ahmed DashtiLearned Counsel for the Complainant contended that the incident is day time, the parties are known to each other being relatives, question of misidentification or wrong identification of the accused does not arise, the accused has been assigned the specific role of causing fire arm injury over the chest of the deceased which finds support from medical and ocular account. The motive stands established and the pistol used in the commission of crime was recovered from the possession of accused which was sent for forensic analysis and pistol was matched with the crime empties secured from the place of incident. They prayed for maintaining the conviction and sentence.

8. Heard Learned Counsel for the parties, examined evidence and perused material on record with their able assistance.

MOTIVE

1. Per prosecution story motive behind the commission of murder of deceased Saith Ali was dispute over landed property. The Prosecution witnesses in the case are brothers of deceased Saith Ali, in their evidence recorded before Trial Court Complainant PW 2 Qurban Ali deposed that the disputed land was agricultural and situated in Chhatt near Naari in Baluchistan Province and the said land was cultivable on rain water. PW 3 Seengar Ali deposed that disputed land was a plot of 5000 square feet situated in Dera Murad Jamali Baluchistan. This contradiction in the statement of prosecution witnesses being real brothers is material in nature, as the witnesses failed to mention the particular location of the land, as such an inference can be drawn that there existed no dispute over lands between deceased and accused party. Even to the admission of both the witnesses that no any case of civil nature was lodged against the accused persons. Even the title of lands or plot was not brought on recordof Trial Court to establish that land or plot actually belonged to deceased on which the dispute was going on between the parties. No any witness from the place where the alleged land is situated, was examined to lend support to the prosecution claim and to establish the motive that prompted the accused to assassinate the brother of complainant. The motive of the case remained shrouded in mystery and could not be established by the prosecution, to believe that deceased was done to death for an enmity on lands.

2. In the Case of Tariq Mehmood v. The State, reported in 2025 SCMR 780 Honorable Supreme Court of Pakistan extended the benefit of doubt in favor of accused when prosecution failed to prove motive. Excerpts from the judgment are reproduced below.

3. The most crucial aspect of the case, in our view, being that the prosecution has miserably failed to prove any motive in the instant matter. It has nowhere been stated as to what prompted the accused to kill the two brothers as neither was there any enmity alleged to be between the parties nor there was any report with regard to any scuffle which took place between them prior to the incident.

4. In light of the above observations, we are of the view that the instant matter is shrouded with doubts and in such eventuality, it would be legally and factually justified not to confirm the death sentence awarded by the two Courts below. Hence, in view of the above facts and depositions of the PWs, this appears to be a fit case of acquittal on the ground of extending benefit of doubt to the said accused.

OCCULAR ACCOUNT

1. It is the case of the prosecution that incident occurred in the heart of city Jacobabad over a bus stop, wherefrom the transport plied between different parts of Country to and from Jacobabad. Place of incident is situated near Anaj Mandi where shops and hotels were located and were open at the time of the incident. The complainant as per prosecution story has deposed in the Court that incident occurred in his presence and he identified the perpetrators of the crime as Bakhtiar Ali (Appellant) and Bilawal who came there at about 12:00 Noon on 08.05.2021 and fired upon deceased with pistol upon the instigation of Mazari domki. He was taken to hospital but succumbed to injuries in the way. He informed the police about the incident promptlyand police party from Police Station City Jacobabad reached the hospital, inspected dead body, inspected place of incident and after post mortem handed over the dead body to the Complainant. It is a matter of record that Complainant and witnesses remained with the police party for about more than 3 hours but they did not record the facts of incidents to the police and turned up to record FIR on next day viz. 09.05.2021.In reply to a question PW 5 ASI Ghulam Murtaza deposed that he asked the complainant to record FIR but he refused and said that he will lodge the FIR later on after consultation. The FIR of the incident was recorded on 09.05.2021 at about 1500 hours with a delay of about 27 hours same also remained unexplained as per record police reached at the hospital just within 10 minutes of the incident, Complainant party remained with police party until the dead body was delivered for burial, during the intervening period, the police recorded at least 05 inspection memos. but in none of the inspection memos. the details of incident were given. The Complainant has claimed enmity with Mazari Domki but the evidence of PW 6 Dr. Bilal Ahmed tells a different story, he deposed that the dead body was brought to hospital by Qurban Ali and Razi Khan son of Mazari Domki. Question arises that had the accused Mazari Domki and his brothers Bakhtiar Ali and Bilawal committed murder, why son of Mazari Domki would have been present at the place of incident and removed the dead body to hospital. The inference can be drawn that the eye-witnesses were not present at the place of incident when this incident occurred and appeared at police station later and recorded the FIR.

2. In the case of Muhammad Jahangir reported in 2024 SCMR 1741 Honorable Supreme Court of Pakistan has been pleased to hold as under:

15. Apart from dishonest improvements in the version of complainant, perusal of record reveals that FIR was lodged after an unexplainable delay of 3 hours despite the fact that the distance of the police station from the place of occurrence was 5 km. The time of occurrence is around 05:00/05:30 pm and the matter is reported at 08:30 p.m. The complainant had a bike that he used to go to the police station. This delay has not been encountered through plausible explanation by the prosecution.

16. Dr. Sadia Habib (PW-7) furnished the medical evidence in the present case. According to the prosecution version Muhammad Iqbal constable took the dead body of the deceased to the hospital, the last worn clothes were handed over to him by the doctor and he produced those articles before the I.O. As per the post-mortem report, it was Mushtaq Muhammad constable who received the dead body and other articles from the doctor. It casts doubt on the post-mortem report and raises the question that who actually received the aforementioned articles once the post-mortem was done.

17. Thus, the minute scrutiny of the evidence of PW-5 and PW-6, the eye-witnesses, makes their presence at the spot highly doubtful.

18. Qua medical evidence, it corroborates the version of the complainant as stated in the FIR but the same is of no assistance in this case as medical evidence by its nature and character cannot recognize a culprit in case of an un-witnessed incident. The eye-witness account relied upon by the prosecution is unreliable and untrustworthy as observed above, therefore, the petitioner's conviction cannot sustain on the basis of medical evidence alone.

1. The ocular account as furnished by Prosecution before Learned Trial Court was in variance to Medico Legal Report regarding injuries to the deceased. The witnesses PW 2 Qurban Ali and PW 3 Seengar Ali deposed that the deceased sustained four injuries, while per statement of PW 6 Dr. Bilal Ahmed deceased sustained 5 injuries which were through and through. Witnesses PW 2 Qurban Ali and PW 3 Seengar Ali deposed that deceased died while in the way to Hospital, but per deposition of PW 6 Dr. Bilal Ahmed deceased died instantaneously. PW5 ASI Ghulam Murtaza who conducted the initial investigation, he prepared inquest report in hospital, prepared memo. of inspection of injuries, secured lost worn clothes of deceased, handed over the dead body to Complainant, visited place of incident and prepared inspection memo. on the very day in the company of complainant and witness through a Roznamcha Entry 9-A which he produced before Learned Trial Court while recording his evidence to establish that he departed from the police station soon after the incident. Page number 02 of Roznamcha entry book produced by this witness evidenced all entries in the book on the relevant day start from entry Nos. 4 to 9, there is no other entry having A , B excepting this entry, which creates doubt on the movement of PW 5 ASI Ghulam Murtaza from police station and recording of the memos. in presence and company of complainant party, it appears that all the memos. were managed at police station. PW 8 SIO Sikandar Ali denied of existence of such in entry in police record. He deposed that at police station roznamcha entries are recorded in acceding order of 1,2,3 and not by 1A, 1B. he deposed that there was no any entry 9 - A available in police station or shown to him by PW 5 ASI Ghulam Murtaza.This piece of evidence rendered by PW8 SIO Sikandar Ali belied the movement and departure of PW 5 ASI Ghulam Murtaza from Police Station to the place of incident and hospital. The inspection memo. of place of incident reflected that incident occurred in front of the shop of one Sikandar Ali Domki but he was not examined during investigation. Even none from the public was examined by the Investigation Officer to establish veracity of the incident. It was incumbent upon Investigation Officer to record statements of persons acquainted with the facts of case, it was a day time incident, occurred at verybusy place, a public thoroughfare, even the help of CCTV cameras could have been taken to trace out the real culprits. PW5 ASI Ghulam Murtaza deposed that he went to place of incident where blood was found but it was not in a position to be secured for laboratory analysis, 7 empty shells of .30 bore TT pistol were secured from the place of incident and sealed on spot in presence of complainant and witnesses. Surprisingly PW 08 IO Sikandar Ali has deposed that bloodstained earth was collected from the place of incident and sent to laboratory for analysis wherefrom report was received that it was a human blood. These dishonest improvements and exaggerations in the prosecution case create serious dent in the story, for which the benefit has to be given to the accused who is blue eyed child of the criminal law.

2. Honorable Supreme Court of Pakistan in the case of Muhamad Akhtar and others v. The State reported in 2025 SCMR 45 has held as under:

"12. The statements of complainant/ PW. 14, PW.16 Muhammad Akhtar and the injured witness (PW.15) are suffering from dishonest improvements and material contradictions rendering their testimony doubtful.

13. The infirmities in the case of the prosecution and the contradictory statements of the prosecution witnesses, which are also suffering from dishonest improvements, have created reasonable doubt in the case of the prosecution. According to settled principle of law, benefit of reasonable doubt has to be extended in favour of accused.

1. Honorable Supreme Court of Pakistan in the case of Muhammad Riaz and others v. The State reported in 2024 SCMR 1839 has held as under:

"13. From the above-stated facts and circumstances, it is abundantly clear that in this particular case, the prosecution version is burdened/ loaded with major discrepancies, which create serious doubts about its authenticity. The prosecution version with regard to the manner of killing, the medical evidence and the recoveries, contradict each other on material points creating serious cracks in the prosecution version. The prosecution has failed to bring on record any convincing material to establish that it was the appellants who had committed the occurrence. It is an established principle of law that to extend the benefit of the doubt it is not necessary that there should be so many circumstances. If one circumstance is sufficient to discharge and bring suspicion in the mind of the Court that the prosecution has faded up the evidence to procure conviction then the Court can come forward for the rescue of the accused persons.

RECOVERY OF WEAPON USED IN CRIME

1. Learned Prosecutor contended that the weapon used in the commission of crime was recovered from the possession of accused which was sent for chemical analysis and matched with the crime empties secured from the place of incident. The witnesses of recovery PW 7 PC Ahsan Ali deposed that Appellant was arrested on 16.05.2021 from Eidgah Chowk, pistol was secured from his shalwar fold and such recovery memo. was prepared by ASI Sikandar Ali in presence of witnesses PC Ahsan Ahmed and PC Umeed Ali at 1700 hours.PW 8 IO Sikandar Ali Bhutto did not depose a single a single word in examination in Chief about arrest of accused and recovery of TT pistol from possession of appellant in murder case wherein he produced memo. of recovery and arrest, forensic and ballistic reports, however in offshoot case he deposed that recovery was affected from the accused in presence of witnesses Umeed Ali and Ahsan Ali from Eidgah Road. The contradictory versions of the witness in two cases belied the recovery proceedings. It is very strange that appellant was roaming in Jacobabad city just about a kilometer away from police station carrying pistol after commission of heinous offence of murder. The report of Chemical laboratory that empties matched with the recovered weapon was also of no significance as crime empties were sent to forensic laboratory on 19.05.2021 along with TT Pistol allegedly recovered on 16.05.2021. To establish that the empties were actually recovered from the place of incident, the sealed parcel should have been sent on the day of incident, but actually was sent on 19.05.2021 along with recovered pistol which created doubt as to the safe custody of case property, thus casts doubt and renders chemical report inadmissible in evidence. Moreso recovery of weapon is a corroborative piece of evidence it does not lend support to identify the offenders. The Prosecution was required to prove through convincing evidence that the recovery so affected was actually the weapon used in the commission of crime and for that purposes should have sent the empty shells recovered from the place of incident on the very day.

2. Honorable Supreme Court of Pakistan in the case of Muneer Malik v. The State reported in 2022 SCMR 1494 has held as under:

"Furthermore, the record shows that eight empties of Kalashnikov and six empties of T.T. pistol were recovered from the scene of occurrence on the same day i.e. 17.05.2007 through recovery memo. but the said crime empties were neither kept in safe custody nor sent to Chemical Examiner immediately after recovery. The weapons of offence and the crime empties were jointly sent to the office of Chemical Examiner after a delay of more than two months i.e. on 13.07.2007 for which no plausible explanation has been given by the prosecution. In these circumstances, the recoveries are inadmissible in evidence and cannot be relied upon to sustain conviction of the appellants. We, therefore, set aside the conviction of the appellants under section 13(e) of the Arms Ordinance."

FAILURE TO EXAMINE NEUTRAL WITNESS

1. The Complainant in his evidence and FIR alleged that the incident had taken place during the peak hours of the day and witnessed by Seengar Ali, Saddam Hussain and complainant himself. Witness Seengar Ali is brother of Complainant and Saddam Hussain was relative. Saddam Hussain was not examined during trial, he was neither given up nor summoned to appear in the witness box. His evidence was crucial for the prosecution case as two other witnesses were brothers inter se and inimical towards accused. Non examination of the witness Saddam Hussain leads to a presumption that his appearance in the witness box would not have favored prosecution, as envisaged under Article 129(g) of the Qanun-e-Shahadat Order, 1984. By withholding this best piece of evidence the prosecution itself created a doubt in its story, benefit of which will accrue in favor of the accused as a matter of right.

BENEFIT OF DOUBT

1. No doubt both the witnesses being brothers and the legal heirs of the deceased are the competent witnesses and their evidence cannot be discarded on account of enmity alone or to tag them as interested witness, but it is the axiomatic principle of law that the evidence of interested witness particularly when there is an element of enmity existing between the parties has to be examined with huge caution and care. In the facts and circumstances of the present case, when the incident took place during busy hours of the day in the month of May and the place of incident was located at a walking distance of 500 meters from the police station, the FIR was not promptly lodged which raises doubts as to the veracity of complainant and creates a reasonable doubt that the FIR was recorded after due deliberations and consultations, particularly when ASI Ghulam Murtaza in his statement before Court frankly conceded that complainant was insisted to record FIR but he refused on an excuse that he wanted registration of FIR after consultation. The complainant as evidences from the inspection memos prepared on the day of incident has remained in the company of police throughout the day, but in none of the papers including the Daily Dairy Report 9 - A, he has named any one responsible for murder of his brother. Though per settled law,mere delay in registration of FIR would not be fatal to the prosecution case, but prosecution is required to furnish plausible explanation in that regard, which is missing in the instant case,creating dent in the prosecution story.

2. Honorable Supreme Court of Pakistan in the Case of Abdul Qadeer v. The State reported in 2024 SCMR 1146 has been pleased to hold as under:

22. All the above circumstances have created reasonable doubt in the case of the prosecution but benefit of same has not been extended to the petitioner by the courts below. According to settled principle of law even if a single circumstance creates a reasonable doubt in a prudent mind about the guilt of an accused he/she shall be entitled to such benefit not as a matter of grace and concession but as of right.

23. According to settled principles of law the prosecution has to stand on its own legs and if it fails to prove its case beyond reasonable doubt, the entire edifice of the prosecution would crumble down.

1. To bring guilt of the accused home, the prosecution is required to adduce the evidence, which without a second thought convincingly depicts a picture of the offence surrounding the neck of the accused.The proof beyond reasonable doubt should be of such a nature that requires no hesitation in making a decision as the guilt of the accused to face off the presumption of innocence attached thereto until a finding of guilt.Unless the Court is satisfied and convinced that burden of proof has been successfully discharged after a thorough and impartial examination of evidence on record, the burden of proof cannot be shifted to otherside. In the present case there are major inconsistencies in the prosecution evidence that were overlooked by the Learned Trial Court, which demonstrated that the prosecution failed to prove its case against the appellant beyond any reasonable doubt. It is settled exposition of law that conviction cannot be recorded based on mere assumptions and presumptions, surmises and conjectures. If a single circumstance creating reasonable doubt in the prudent mind appears in the prosecution case, it would be sufficient to discredit the prosecution case, the existence of multiple circumstances was not required. Under the criminal trial, prosecution has to stand on its legs. Prosecution is duty bound to prove its case beyond shadow of doubt through confidence inspiring oral or documentary account, which if they fail would make its case doubtful. The Benefit of doubt if any in the prosecution case would tilt in favor of the accused being the blue-eyed child of criminal law. The crux of the whole discussion is that the prosecution case is not free from doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as a matter of right and not as that of grace this principle of law has been repeatedly reiterated the courts of the Country.

2. In the case of Rehmatullah and 2 others v. The State reported in 2024 SCMR 1782 Honorable Supreme Court of Pakistan has been pleased to hold as under:

2025 M L D 1574

[Sindh (Hyderabad Bench)]

Before Abdul Hamid Bhurgri, J

Ameer Bux---Appellant

Versus

Maqsood and another---Respondents

Criminal Misc. Application No. S-863 and M.As Nos. 12643 and 12644 of 2024, decided on 13th February, 2025.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 324, 436, 427, 504, 147, 148 & 149---Attempt to commit qatl-i-amd, mischief by fire and explosive substance, mischief causing damage to the amount of fifty rupees, intentional insult with intent to provoke breach of the peace, rioting, rioting armed with deadly weapons, unlawful assembly---Bail, cancellation of---Record reflected that after registration of case the accused moved an application for grant of pre-arrest bail before the Trial Court, which granted ad-interim pre-arrest bail to him and later on his interim pre-arrest bail was confirmed vide order dated 19.07.2024, which was impugned---Admittedly, there was a dispute between the parties, as disclosed in the memo of FIR as well as Trial Court's order---Furthermore, the strong and cogent reasons were required for recalling of bail granting order, if the bail granting order was perverse or disregarded to the principle regulating grant of bail---Applicant/complainant was unable to demonstrate the principles governing the cancellation of bail---As per tentative assessment, the grounds for cancellation of bail as agitated by the complainant could only be thrashed out at the time of recording evidence of the parties---Since the trial was yet to begin thus no fruitful result would come out to recall the pre-arrest bail order as impugned---No cogent grounds had been established by the applicant to warrant the cancellation of bail---Order granting bail was founded upon settled legal provisions, and thus, no interference was justified---Application for cancellation of bail was dismissed in limine, in circumstances.

Muhammad Azhar v. Dilawar 2009 SCMR 1202 rel.

Abdul Rasheed Abro for Applicant/Complainant.

Date of hearing: 13th February, 2025.

Order

Abdul Hamid Bhurgri, J.---The applicant / complainant through the captioned Criminal Miscellaneous Application under Section 497(5), Cr.P.C seeks cancellation of bail granted to respondent 1 by the learned Sessions Judge, Badin in Cr. Bail Application No.1007 of 2024 (Re-Maqsood v. The State), arising out of Crime No.356 of 2024 registered at Police Station Badin, under Sections 324, 436, 147, 148, 149, 504, 427, P.P.C vide order dated 19.07.2024.

1. The facts of the case are already stated in the memo. of this application, therefore, there is no need to reproduce the same for the sake of brevity.

2. The learned counsel contended that the grant of bail to the accused/respondent No.1 contravenes established principles of law, as a specific role has been explicitly assigned to the respondent/accused. He further argued that there exists compelling evidence on record, which unequivocally links the respondent to the alleged offense. He urged that the respondent / accused after granting bail by the trial Court is misusing the concession of bail by issuing threats to the applicant / complainant. He further submitted that the respondent / accused was nominated in the promptly lodged FIR with specific role, however, the learned trial Court by ignoring the same and without considering the record has granted bail to the accused. Additionally, he submitted that following the grant of bail, the accused resorted to intimidatory tactics, coercing the complainant into withdrawing from the case. He requested that bail of the accused may be recalled.

3. Having meticulously considered the arguments advanced by the learned counsel for the applicant, thoroughly examined the case material, and scrutinized the impugned order issued by the Trial Court, the learned Sessions Judge delivered the following operative findings:

"Apparently, applicant/ accused person is nominated in FIR with the role that he made fire which hit to tractor. The main contention of learned defence counsel that no any person sustained any injury; apparently from perusal of FIR, no any person sustained any injury. The other main plea of learned defence counsel that there is civil nature dispute between the applicant's father and one Shakoor; such version was not rebutted by learned complainant's counsel. The other main plea of learned applicant's counsel that as per FIR, only one tire of tractor was shown to have been burnt. As per photographs provided by complainant, one cot was shown to have been burnt. S-far plea of learned complainant's counsel that applicant/ accused is involved in two other cases; admittedly, each case is to be decided on its own facts and circumstances. When as per FIR no any person sustained any injury and no photograph showed the tractor was burnt. Moreover, when during the course of arguments the complainant was asked which tire of tractor either front or rear was damaged, he failed to reply satisfactorily. Moreover there is apparently dispute between the parties over the land, therefore, case of the applicant/ accused needed further inquiry."

2025 M L D 1584

[Sindh (Hyderabad Bench)]

Before Miran Muhammad Shah and Muhammad Hasan (Akber), JJ

Mst. Zahida---Appellant

Versus

The State through Chairman Nab and another---Respondents

Criminal Bail Application D-27 of 2025, decided on 21st March, 2025.

Criminal Procedure Code (V of 1860)---

----S.497(1), first proviso---National Accountability Ordinance (XVIII of 1999), S. 9---Anti-Money Laundering Act (VII of 2010), Ss. 3 & 4---Corrupt practices, money laundering---Bail, grant of---Allegations against the accused-petitioner were that she connived with other accused by illegally acquiring pecuniary advantage/crime proceeds---Applicant was a female and was also of advance age of about 80 years, with fragile health---Applicant was a housewife and there was no previous record of her business activity or her previous conviction---Fact of grant of relief of interim bail to the applicant by the Accountability Court and the absence of allegation of misuse of such bail was also part of record---Moreover, there also appeared no likelihood that the applicant, if released on bail, after securing sufficient sureties, would abscond to escape trial, or tamper with the prosecution evidence or influence the prosecution witnesses to obstruct the course of justice, or repeat the offence---Thus, the case of the applicant was fully covered by the first proviso to S.497(1), Cr.P.C.---Bail application was accepted, in circumstances.

PLD 2022 SC 764; 2023 SCMR 887; 2025 PCr.LJ 15; 2022 PCr.LJ 883; PLD 2022 SC 497; 2017 PCr.LJ 416; 2023 MLD 400; 2024 SCMR 1419 and PLD 2022 SC 743 ref.

PLD 2022 SC 764; 2024 SCMR 1528; 2023 SCMR 887; 2023 SCMR 383; 2023 SCMR 1729; 1994 SCMR 1729; 2025 PCr.LJ 15; 2002 MLD 639; PLD 1995 SC 34; 2009 SCMR 1488; PLD 2017 SC 733 and PLD 2021 SC 799 rel.

Farooq H. Naek, Talmoor Ali Mangrio and Syed Qasim Ali Shah for Applicant.

Moazam Ali, Special Prosecutor NAB Hyderabad for Respondents.

Date of hearing: 13th March, 2025.

Order

Muhammad Hasan (Akber), J.---The Applicant is aggrieved by the order dated 26.02.2025, ("impugned order") whereby the learned Accountability Court No.1 Hyderabad dismissed her post-arrest bail application in NAB Reference No.2 of 2021 (The State V. Munawar Ali Bozdar and others) for the offences allegedly committed under section 9(a) of the National Accountability Ordinance, 1999 (NAB Ordinance) and sections 3 and 4 of the Anti-Money Laundering Act, 2010 (AMLA).

1. We have heard the learned counsel for the parties and examined the record. Brief background of the case is that FIR No.G-0-01/2020 dated 03.03.2020 was registered at P.S Thatta Anti-Corruption Establishment Sindh, against misappropriation and embezzlement of funds allegedly committed by the officers of the Right Bank Out Fall Drain (RBOD-II), Irrigation Department Government of Sindh and its contractors under the garb of flood, lighting/ emergent works. Thereafter, application under section 16-A of the NAB Ordinance was filed before the learned Special Judge Anti-Corruption (Provincial) Hyderabad and vide order dated 15.01.2021, the matter was transferred to the Accountability Court Sindh at Hyderabad. NAB's Investigation, in the form of Investigation Report, culminated into filing of Reference No.2 of 2021. The present applicant (Mst. Zahida) has been arrayed as accused No.9 in the said reference, who is the mother of the accused Muhammad Faheem Soomro. The allegations against the present applicant in the reference, as narrated at para-14 are as follows:

"That investigation further revealed that accused No.9 (Zahida) connived with accused No.8 (Muhammad Faheem Soomro) by illegally acquiring pecuniary advantage / crime proceeds to the tune of Rs.153,274,000/- from accused No.37 (Manzoor Ali Solangi) i.e Rs.47,974,000/- into her joint account with accused No.8 (Muhammad Faheem Soomro), Rs.105,300,000/- to make payments for plot No.310 measuring 2,000 sq. yards (29th Street, DHA Phase VIII, Karachi. She in active connivance with accused No.8 (Muhammad Faheem Soomro) then transferred the plot No.310 acquired through crime proceeds in his name, who got it bifurcated the same into 02x plots and transferred them in the names of accused No.12 (Hassan Soomro) and accused No.12 (Mahvish Faheem Soomro)."

1. The applicant moved an application under section 498, Cr.P.C based whereon, ad-interim pre-arrest bail was granted by the Accountability Court, which was later on declined vide order dated 08.02.2025. Thereafter post-arrest bail was filed by the applicant before the learned Accountability Court, which was also declined vide order dated 26.02.2025.

2. At the very outset, it has been argued by learned senior counsel that the applicant has been falsely roped in this case and contends that applicant is a female and an old age lady of about 80 years, with poor health and she is a housewife, who has never been a working lady with no record of business activity and is not a previous convict, hence her case falls under the Proviso to section 497, Cr.P.C.; that Charge has already been framed in the case (page 229 of the court file) and there are around 71 witnesses in the Reference, however not a single witness has been examined till date despite passing of four years, and there is no likelihood of conclusion of the trial in near future; that the applicant is the mother of the accused Muhammad Faheem Soomro (accused No.8) and joint account holder with him whereas she had no knowledge about deposit of the subject money in the joint account; that being a joint account holder would not automatically make her part of the alleged crime, nor could mens rea be presumed automatically against her only for being the mother and joint account holder with her son; that no material was available on record to establish her conscious participation in the crime with the alleged contractors. Per learned counsel, not a single shred or material was available to establish that the applicant had the knowledge at the relevant time, about the said funds being crime proceeds. With respect to the purchase of property No.310, Phase VIII, DHA, Karachi, it was argued that no record has been produced by the prosecution in the Investigation to the effect that the applicant was personally and knowingly withdrawing or utilising such amount out of the subject five entries; nor was she aware about the source of consideration in purchase of the property; that the present owner of the property namely Saleem Malik has not been arrayed as an accused but prosecution has extended benefit of doubt and made a Prosecution witness, hence on the same analogy, the applicant is also entitle to benefit of doubt as well; that it has not even been alleged by the prosecution that applicant is the ultimate beneficiary of the funds obtained through sale of the said property. It was further pleaded that the entire case is based upon documentary evidence, which has already been collected and even Charge has been framed, hence the accused is not required for any investigation, nor is there any possibility of the accused tempering with the prosecution evidence or influencing any witness by the applicant and that no purpose would be served by keeping the female accused behind bars for indefinite period. It was also argued that the earlier interim Pre-arrest bail granted to the applicant was never misused or skipped by her, nor is there any possibility of her absconding or tempering with witnesses or the documentary evidence which is already in custody of NAB. It was finally submitted that after the latest amendment in the NAB Ordinance in the year 2022, the Court is empowered to grant bail under section 17 (a) thereof. Reliance was placed upon PLD 2022 SC 764, 2023 SCMR 887, 2025 PCr.LJ 15, 2022 PCr.LJ 883; PLD 2022 SC 497, 2017 PCr.LJ 416 and 2023 MLD 400.

3. Conversely, the learned Special prosecutor NAB, duly assisted by the Investigation Officer ably argued the matter and vehemently opposed the bail petition. He drew attention to various documents in the Investigation Report and the Reference, including pages 229, 197, 131 and paragraph 17 of the Reference to show that during 2018, money was deposited in the joint bank account of the applicant and her son accused Muhammad Faheem Soomro and that plot was purchased in the name of the applicant through crime proceeds in the name of Mst. Zahida, which was later on bifurcated and then transferred in the name of Mst. Mahwish and her son Hasan Soomro and ultimately sold to the subsequent purchaser Saleem Malik, the Prosecution Witness. He placed reliance upon 2024 SCMR 1419 and PLD 2022 SC 743.

2025 M L D 1598

[Sindh]

Before Salahuddin Panhawar and Adnan-ul-Karim Memon, JJ

Ghulam Abbas---Applicant

Versus

Senior Superintendent Police Investigation-III Karachi and 7 others---Respondents

Criminal Misc. Application No. 1020 of 2024, decided on 7th November, 2024.

Penal Code (XLV of 1860)---

----Ss. 452, 506(B), 147, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 561-A---Inherent powers of High Court---Quashing of order---Complainant alleged that a group of five or more people unlawfully entered into his house with the intent to harm, disturb the peace, and threaten his family---Investigating Officer submitted a report for disposal of the case under "C" class---Judicial Magistrate agreed with the report of Investigating Officer vide order, which was impugned---Validity---In the present case, the police report revealed a contrary story with the narration that there was a dispute between a complainant/lawyer and his clients over unpaid legal fees---Complainant accused the clients of assault, but the police investigation found no supporting evidence---Witnesses claimed the complainant and his sons attacked the accused's house---One accused had an alibi and the complainant failed to seek medical attention for his allegedly injured sons---Due to insufficient evidence, the police released the accused and submitted a "C" class report to the Court which investigation report was accepted vide impugned order---Investigating Officer was responsible for conducting a thorough investigation, considering all evidence and perspectives---Final report should be based on facts, not just the complainant's version---Judicial Magistrate, empowered by S.190 of the Cr.P.C, had the authority to review the police report and decide whether to take cognizance of the case, regardless of the police's recommendation---"C-class" disposal did not necessarily mean the case was closed forever---Right to file a direct complaint was available to the complainant who had been aggrieved by the decision of the Presiding Officer of the Anti-Terrorism Court to dispose of the case under the 'C' class---However, it was made clear that in a direct complaint, the burden of proof lied with the complainant---Criminal Miscellaneous Application was disposed of accordingly.

Rana Muhammad Imran Nasarullah v. The State 2022 SCMR 1946; Mst. Sughran Bibi v. The State PLD 2018 SC 595; Muhammad Akbar v. State 1972 SCMR 335 and Falak Sher v. State PLD 1967 SC 425 rel.

Sardar Abdul Hameed for Applicant.

Mumtaz Ali Shah, Assistant PG for Respondents.

Date of hearing: 7th November, 2024.

Order

Adnan-ul-Karim Memon, J.---The Applicant Ghulam Abbas alleges that on 05.07.2024, the private respondents forcefully entered his house, assaulted him and his sons, and threatened them with weapons. The petitioner claims that the trial Court's order of 22.08.2024 canceling the FIR No.292 of 2024 under Sections 452, 147, 148, 149, 506-B, P.P.C read with Section 7 of the Anti-Terrorism Act, 1997 ("ATA") is the erroneous decision and may be set aside. An excerpt of the order dated 22.8.2024 is reproduced as under:-

"Heard accepted."

1. It is contended by the learned counsel for the Applicant that the trial Court's order granting bail to respondents Nos.3 to 7 was hasty, erroneous, and based on misreading of facts. The applicant further alleges that the police officers involved in the case acted with mala fide intentions and violated legal procedures. The Applicant seeks setting aside the bail order, re-investigation of the case by an honest officer, and inquiry against the police officers for their misconduct.

2. Learned APG has supported the impugned order agreed by the Magistrate with the report of the Investigating Officer for disposal of the case under "C" Class.

3. We have heard the learned counsel for the parties present in Court and have perused the material available on record.

4. The questions involved in the present proceedings are whether the offenses under Sections 452, 147,148,149 506-B, P.P.C read with Section 7 of the ATA were/are made out to allow the prosecution to proceed with the matter for decision on merit. And whether the Summary report submitted by the Investigating officer under "C" Class for disposal of the criminal case needs a detailed order to be passed by the Magistrate or he can simply agree with the report or otherwise.

5. Primarily, a "C-class" case cancellation means the police believe the complaint was mistaken and there was/is insufficient evidence against the accused for trial as such no further legal action would be taken against the accused. If the complainant disagrees, he may challenge the decision subject to strong evidence. Further, a summary report submitted under the "C" class for disposal of a criminal case is a procedure under criminal jurisprudence. It signifies that the investigation has been completed, and the Investigating Officer (IO) has recommended a course of action, often involving a discharge or acquittal. However, a simple order agreeing with the IO's recommendation can suffice in many cases. This is particularly true when the Investigation report is clear, concise, and supported by sufficient evidence because ultimately, the Magistrate can decide whether a detailed order is required or otherwise; and if a prima facie case does not exist, the criminal case can be summarily dismissed based solely on police recommendations.

2025 M L D 1668

[Sindh]

Before Muhammad Jaffer Raza, J

Asim Iqbal---Appellant

Versus

Mateen Sadiq and another---Respondents

Miscellaneous Appeal No. 128 of 2024, decided on 30th April, 2025.

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

----Ss.5, 6, 7 & 15---Civil Procedure Code (V of 1908), O.VII, R.11---Companies Act (XIX of 2017), S.483---Penal Code (XLV of 1860), Ss.193 & 228---Suit for recovery of damages on account of defamation---Defence of 'absolute privilege', availability of---Rejection of plaint---Scope---Factual controversy---Recording of evidence, requirement of---Order of Trial court rejecting the plaint set aside as the matter required recording of evidence---The appellant filed a defamation suit against the respondents for allegedly issuing a defamatory letter to the Securities and Exchange Commission of Pakistan (SECP) which he claimed damaged his reputation---Trial court rejected the plaint under O.VII R.11 CPC on the ground that the impugned letter was issued in the respondents' official capacity and was protected under "absolute privilege" as per S.6 of the Defamation Ordinance, 2002 (the Ordinance, 2002) and S.483 of the Companies Act, 2017 (the Act 2017)---The appellant challenged this rejection in the present appeal contending that such determinations required evidence and could not be resolved at the preliminary stage---Two important points for consideration by the High Court were as to "i. Whether the defamatory letter qualified as a "judicial proceeding" within the meaning of S.483 of the Act, 2017? and; ii. Whether the defamatory letter was written by the respondents in their personal or official capacity?"---Held: Perusal of S.483 of the Act, 2017 revealed that whilst powers of the civil court had been vested in the Commission for the purposes outlined in subsection (1) of S.483 in respect of any "proceedings" or "enquiry", the same attained the status of a "judicial proceeding" only within the meaning and for the purposes of Ss.193 and 228 of the P.P.C.---The defamatory letter visibly did not fall in the said category and it could not be classified as part of a "judicial proceeding"---Therefore, reliance of the Trial court on the above noted provision, at least for the purposes of rejection of plaint, was unfounded and incorrect---With regards to the second question for determination by the High Court, same required evidence to be recorded---The appellant should have been given an opportunity to examine the respondents and put forward necessary questions to them to determine the capacity in which the defamatory letter was written---The conclusion by the Trial Court in reference to the said letter being written by the respondents in their "official positions" could not have been made prior to recording of evidence---Trial Court went over and above the permissible scope of O.VII R.11 C.P.C.---Perusal of the impugned order reflected that the Trial court had not distinguished between rejection of the plaint and dismissal of the suit---Matter was remanded back to the Trial Court with a direction to conclude the proceedings within six months---Order of rejection of plaint was set aside and present appeal was allowed, in circumstances.

Haji Abdul Karim v. M/s. Florida Builders (Pvt.) Ltd. PLD 2012 SC 247 rel.

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

----S.8---Suit for recovery of damages on account of defamation---Prerequisites---Notice of action, requirement of---Scope---The scheme under the Defamation Ordinance, 2002, being special law, is peculiar---Prior to institution of the suit the plaintiff is mandated to issue a notice under S.8 of the Ordinance, 2002 within the time stipulated in the said provision.

Muhammad Ali Lakhani for Appellant along with Farmanullah and the Appellant Asim Iqbal.

Ghazi Khan Khalil along with Ameer Nausherwan, Zeeshan Ahmed Kalhoro, Kumail Abbas and Aftab Ali for Respondents.

Ahmed Khan Khaskheli, A.A.G for the State.

Date of hearing: 25th April, 2025.

judgment

Muhammad Jaffer Raza, J.---The instant Miscellaneous Appeal has been filed under Section 15 of the Defamation Ordinance, 2002 ("Ordinance") impugning the order dated 29.07.2024 passed in Defamation Suit No.183/2023, whereby the plaint filed by the Appellant was rejected under Order VII Rule 11, C.P.C.

1. Succinctly stated, the Appellant filed Suit No.183/2023 against the Respondents for damages on account of defamation before the learned trial Court. Thereafter, the Respondents filed an application under Order VII Rule 11, C.P.C. and the same was allowed vide Impugned order dated 29.07.2024.

2. Learned counsel for the Appellant has argued that the Impugned order is beyond the permissible scope of Order VII Rule 11, C.P.C. as expounded by the Hon'ble Supreme Court in the case of Haji Abdul Karim v. M/s. Florida Builders (Pvt.) Ltd. Learned counsel has stated that the letter dated 29.04.2023 ("defamatory letter"), written and signed by the Respondents, was defamatory in nature, which gave rise to the cause of action against the Respondents. It is specified that in the instant judgment the term "defamatory letter" is used for the purposes of identifying the said letter only and is not a determination on whether the said letter was defamatory.

3. The learned counsel in compliance of the provisions of Section 8 of the Ordinance issued legal notice dated 22.05.2023 to the Respondents and thereafter preferred the above-mentioned suit. The learned counsel has stated that the application filed by the Respondents under Order VII Rule 11, C.P.C. was primarily filed on the ground that the defamatory letter, which is the subject matter of the above-mentioned suit, was written by the Respondents in their official capacity and therefore their employer should have impleaded as Defendant in the said suit. Learned counsel has argued that even if the above was a permissible defence under Section 5 of the Ordinance, even then a rejection of the plaint was not warranted under the permissible scope of the above noted provision.

4. Conversely learned counsel for the Respondents has argued that Sections 6 and 7 of the Ordinance are squarely applicable to the case at hand as the defamatory letter which is the subject matter of the above-mentioned suit is covered by "absolute privilege" as defined under Section 6 of the Ordinance. In the same vein the learned counsel has also placed reliance on Section 483 of the Companies Act, 2017 ("Act") and states that the alleged defamatory letter, written to the Securities and Exchange Commission of Pakistan ("SECP") qualifies as "judicial proceeding" and therefore can be classified as "absolute privilege". He has further argued that no evidence in respect of the said defence needs to be recorded and the plaint can be rejected without appreciating the contents of the written statement. Learned counsel has further contended that the ground of absolute or qualified privilege, being legal in nature, can be taken at any stage.

5. Further the learned counsel has argued that the defamatory letter does not give rise to cause of action against the present Respondents as the defamatory letter was issued under the instructions of their employer. Therefore, the Respondents could not be sued personally for their acts and omissions which were done in their "official capacity". Learned counsel has further advanced the said argument and averred that the application filed by the Appellant under Order I Rule 10, C.P.C. seeking impleading of the employer of the Respondents as party further buttresses his contention. Lastly, he has relied upon the case of M. Moosa v Mahomed and others.

6. In rebuttal, learned counsel for the Appellant has argued that Section 483 of the Act is specific to proceedings under Sections 193 and 228 of the Pakistan Penal Code, 1860 ("P.P.C.") and therefore is not attracted to present case. Learned counsel has argued that the defamatory letter was sent in reply to the letter issued by SECP dated 18.04.2023. It is argued that the notice to SECP was sent by the Appellant as counsel for his client and the Respondents used this as an opportunity to defame the Appellant and tarnish his reputation. Lastly, learned counsel has contended that if the Impugned order is set aside, he will during the course of evidence, cross-examine the Respondents vis-à-vis their above noted contentions.

7. I have heard the learned counsel and perused the record. The scheme under the Ordinance, being special law, is peculiar. Prior to institution of the suit the Plaintiff is mandated to issue a notice under Section 8 of the Ordinance within the time stipulated in the said provision. At this juncture it will be relevant to reproduce Section 8 of the Ordinance which reads as follows: -

"8. Notice of action. - No action lies unless the plaintiff has, within two months after the publication of the defamatory matter has come to his notice or knowledge, given to the defendant, fourteen days notice in writing of his intention to bring an action, specifying the defamatory matter complained of."

1. Further, the defences available to the Defendant in a suit under the Ordinance have been clearly defined in Sections 5, 6 and 7 of the Ordinance, which are reproduced below: -

"5. Defences.- In defamation proceedings a person has a defence if he shows that-

(a) he was not the author, editor, publisher or printer of the statement complained of;

(b) the matter commented on is fair and in the public interest and is an expression of opinion and not an assertion of fact and was published in good faith;

(c) it is based on truth and was made for public good;

(d) assent was given for the publication by the plaintiff;

(e) offer to tender a proper apology and publish the same was made by the defendant but was refused by the plaintiff;

(f) an offer to print or publish a contradiction or denial in the same manner and with the same prominence was made but was refused by the plaintiff;

(g) the matter complained of was privileged communication such as between lawyer and client or between persons having fiduciary relations; and

(h) the matter is covered by absolute or qualified privilege.

6. Absolute privilege. - Any publication of statement made in the Federal or Provincial legislatures, reports, papers, notes and proceedings ordered to be published by either House of the Parliament or by the Provincial Assemblies, or relating to judicial proceedings ordered to be published by the Court or any report, note or matter written or published by or under the authority of a Government, shall have the protection of absolute privilege.

Explanation. - In this section legislature includes a local legislature and Court includes any tribunal or body exercising the judicial powers.

7. Qualified privilege. - Any fair and accurate publication of parliamentary proceedings, or judicial proceedings which the public may attend and statements made to the proper authorities in order to procure the redress of public grievances shall have the protection of qualified privilege."

1. At this juncture it will be expedient to bifurcate the grounds taken by the learned counsel for the Respondent for rejection of plaint and frame points of determination accordingly. The following points of determination are framed for effective adjudication: -

i. Whether the defamatory letter qualifies as a "judicial proceeding" within the meaning of Section 483 of the Act?

ii. Whether the defamatory letter was written by the Respondents in their personal or official capacity?

POINT NO.1

1. Prior to adjudicating this question, it will be germane to reproduce Section 483 of the Act. The same reads as follows: -

483. Powers of the Commission in relation to enquiries and proceedings.-(1) The Commission, an authorised officer or the registrar, as the case may be, shall, for the purposes of a proceeding or enquiry in exercise of its or his powers and discharge of functions, have the same powers as are vested in a Court under the Code of Civil Procedure, 1908 (Act V of 1908), while trying a suit, in respect of the following matters, namely-

(a) summoning and enforcing the attendance of any witness and examining him on oath or affirmation;

(b) compelling the discovery or production of any document or other material object;

(c) receiving evidence on affidavit; and

(d) issuing commissions for the examination of witnesses and documents.

(2) Any proceeding before the Commission, an authorised officer or registrar, as the case may be, shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Pakistan Penal Code, 1860 (Act XLV of 1860), and the Commission, an authorised officer or registrar shall be deemed to be a civil court for the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898 (Act V of 1898). (Emphasis added)

1. Bare perusal of the above reproduced section reveals that whilst powers of the civil court have been vested in the commission for the purposes outlined in subsection (1) of Section 483 in respect of any "proceedings" or "enquiry", the same attain the status of a "judicial proceeding" only within the meaning and for the purposes of Sections 193 and 228 of the P.P.C. The defamatory letter visibly does not fall in the said category and in that respect, it is held that the said letter cannot be classified as part of a "judicial proceeding". Therefore, reliance of the learned trial court on the above noted provision, at least for the purposes of rejection of plaint, was unfounded and with respect, incorrect.

2. For the purposes of the present appeal it will be beneficial to discuss another ancillary aspect of what has already been held above. Even if the defamatory letter is held to be a part of a "judicial proceeding" the Impugned order is unclear as to whether the same attracts absolute or qualified privilege within the meaning ascribed to them under the Ordinance. I will leave it to a more opportune moment to adjudicate whether either privilege can be a ground for rejection of plaint. For the purposes of the instant judgment, the same is immaterial in light of what has already been held in paragraph No.12 above. Consequently, the reliance of the learned counsel for the Respondent on the judgement in the case of M. Moosa (supra) is misplaced.

POINT NO.2

2025 M L D 1680

[Sindh (Hyderabad Bench)]

Before Muhammad Hasan (Akber), J

Muhammad Anwar---Applicant

Versus

Superintendent of Police Complaint Cell District Hyderabad and 2 others---Respondents

Criminal Misc. Application No. S-787 of 2024, decided on 21st February, 2025.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 22-A & 22-B---Inherent powers of High Court under S. 561-A, Cr.P.C.---Scope---Powers of Ex-officio Justice of Peace---Application of the petitioner for the registration of FIR was turned down by Ex-officio Justice of Peace---Validity---Complainant-petitioner alleged that he entered into nikah with a widow lady/proposed accused No. 1 against dower amount of Rs. 50,000/- and he extended loan amount of Rs. 5,00,000/- to her relatives, the proposed accused Nos. 2 to 4, however, rukhsati was refused due to quarrel between the parties, and respondent No. 1 started demanding khula---Allegedly, complainant against harassment by the proposed accused persons lodged two complaints---Applicant further alleged that he was kidnapped by proposed accused who harassed and threatened him to pronounce talaq upon his wife, (proposed accused)---Applicant produced copy of an early hand written application filed by him to the DIG Police---Contents of said application dated 14.10.2024 clearly revealed that no allegation of any cognizable offence was alleged therein but the applicant imputed allegations of bad character against the proposed accused/wife of applicant and demanded to lodge FIR against her solely for recovery of the loan amount of Rs.5,00,000/- and dower amount of Rs. 50,000/----Surprisingly, that first application was not disclosed before the Ex-officio Justice of Peace---Apparently, in the first two applications, applicant demanded lodging of FIR without even alleging any offence, whereas this time he had alleged the purported incident---For seeking discretionary relief, a person who sought equity and justice from the Court had to firstly disclose all the relevant facts and the ground realities before the Court; and secondly the conduct of the person seeking justice from the Court was also to be looked into, as the applicant must come before the Court with clean hands and without suppressing material facts from the Court---Claim of money transaction with his in-laws by the applicant and repeated applications by him appeared to be motivated with malice to subjugate and pressurize the proposed accused persons who, as claimed by the applicant himself, were his wife and her relatives, the same being matrimonial and financial issues of civil nature---Contradictions between such repeated applications were also worth noticing---From the record, it appeared that no cognizable offence had been made out and neither any witnesses nor any proof of such incident was placed, whereas the earlier application was also concealed---Applicant had not approached the Court with clean hands, which was sine qua non for seeking discretionary---Purpose of filing consecutive complaints under S.22-A & B, Cr.P.C., was to impress upon his wife and in-laws---Neither any cognizable offence was made out from the complaint nor any infirmity in the order passed by the Ex-officio Justice of Peace could be found---Application was dismissed, in circumstances.

Syed Qamber Ali Shah v. Province of Sindh and others 2024 SCMR 1123; Saeed Ahmad and others v. Naseer Ahmad and others PLD 2000 Lahore 208; Muhammad Aslam v. Additional Sessions Judge and others 2004 PCr.LJ 1214; Khizer Hayat v. Inspector General of Police (Punjab), Lahore PLD 2005 Lah. 470; Munawar Alam Khan v. Qurban Ali Malano 2024 SCMR 985; Jamal Khan v. Secretary Home Department 2021 SCMR 468; Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691 and Haider Ali v. State 2015 SCMR 1724 rel.

Applicant in person.

Irfan Ali Talpur, Assistant Prosecutor General, Sindh for Respondents.

Date of hearing: 30th January, 2025.

Order

Muhammad Hasan (Akber), J.---Through the instant Criminal Miscellaneous Application under section 561-A, Cr.P.C., the applicant has impugned the order dated 12-11-2024 passed by learned 7th Additional Sessions Judge, Hyderabad (Ex-officio Justice of Peace), thereby dismissing the application under section 22-A and B(vi)(i) of the Criminal Procedure Code (Cr.P.C) for registration of First Information Report (FIR) under section 154, Cr.P.C..

1. The Applicant is present and on his request, he was allowed to plead in person. He contended that through the impugned order, gross illegality and failure to exercise the powers vested in Justice of Peace, has occurred. Applicant states that he entered into nikah with a widow lady/the proposed accused No.1 against dower amount of Rs.50,000/- and he also extended loan amount of Rs.500,000/- to her relatives, the proposed accused Nos. 2 to 4.

2. However rukhsati was refused due to quarrel between the parties, and proposed accused No.1 started demanding khula. He further alleges that against harassment by the proposed accused persons, he lodged a complaint dated 23-09-2024 and 28-10-2024. He further alleges that on 27-10-2024 at 11 pm, he was kidnapped by proposed accused No.2 along with other proposed accused who harassed and threatened him to pronounce talaq upon proposed accused No.1, however upon his raising hue and cry, he was released.

3. Learned A.P.G. supported the impugned Order since neither any witnesses were available nor is there any evidence of the alleged incident. He further contended that as admitted by the applicant himself, there is relationship of husband and wife as also a money transaction between the parties, hence it is a civil and matrimonial dispute which the applicant is malafidely attempting to convert into criminal proceedings as a pressure tactic. It was lastly argued that the applicant has attempted to abuse the process of Court and has not approached the Court with clean hands.

4. Heard the Applicant-in-person and learned A.P.G. and perused the record with his assistance.

5. There is no cavil with the proposition that the provisions of section 154, Cr.P.C. are quite explicit and the officer in charge of the relevant Police Station is under a statutory obligation to register FIR whenever information disclosing commission of a cognizable offence is provided to him, as held in the case of 'Syed Qamber Ali Shah v. Province of Sindh and others' (2024 SCMR 1123). It is also settled that the officer in-charge of a police station or for an ex-officio Justice of the Peace are not obliged to afford an opportunity of hearing to the accused party, before registration of a criminal case or before issuing a direction in that regard. Reference in this regard can be made to the cases of 'Saeed Ahmad and others v. Naseer Ahmad and others' (PLD 2000 Lahore 208 (DB)) and 'Muhammad Aslam v. Additional Sessions Judge and others" (2004 PCr.LJ 1214).

6. However the provisions of section 22-A(6), Cr.P.C. do not make it obligatory for an ex-officio Justice of the Peace to necessarily or mechanically issue a direction regarding registration of a criminal case, whenever a complaint is filed before him in that regard. The use of the word "may" in section 22-A(6), Cr.P.C. clearly shows that the jurisdiction of an ex-officio Justice of the Peace in that regard is discretionary in nature, and understandably so, because unfortunately, the machinery of criminal law with its coercive process is increasingly being misused by motivated persons for achieving self-serving objectives. Thus, there is a pressing need on the part of the ex-officio Justices of the Peace to exercise caution and restraint before issuing a direction regarding registration of a criminal case. It is for this reason that in some cases, comments are also called from the officer in charge of the relevant Police Station in order to help pierce the veil, which may have been created due to economizing with the truth by the complainant. In an appropriate case, depending upon the circumstances thereof, an ex-officio Justice of the Peace may therefore, rightly refuse to issue a direction regarding registration of a criminal case and may dismiss the complaint under section 22-A(6), Cr.P.C., reminding the complaining person of his alternate statutory remedies under sections 156(3) and 190, Cr.P.C. Such was the ratio settled by a three member bench of the Lahore High Court in the case of 'Khizer Hayat v. Inspector-General of Police (Punjab), Lahore' (PLD 2005 Lahore 470).

7. While dealing with applications under sections 22-A and 22-B Cr.P.C., it has been held as the duty of the Court to take care of the possible misuse of the process and such applications should not be lightly entertained and decided in a mechanical manner for issuing direction to the police to lodge an FIR, conduct investigation in the matter and prosecute the accused. It has also been held that serious notice should be taken of frivolous, false or vexatious complaints, and where applicable, cases should be registered under sections 182 and 211 of the Pakistan Penal Code, 1860. Reliance is placed on the case of 'Munawar Alam Khan v. Qurban Ali Malano' (2024 SCMR 985) where such guidelines are worded in the following terms:

"4. Having heard the petitioner and scanned the material available on the record, we observe that there are many precedents regarding misuse of provisions of Sections 22-A and 22-B, Cr.P.C. and it is the prime duty of the Court that such misuse be taken care of and application filed should not be lightly entertained and decided in a mechanical manner for issuing direction to the police to lodge an FIR, conduct investigation in the matter and prosecute the accused…"

1. Likewise in the case of 'Jamal Khan v. Secretary Home Department' (2021 SCMR 468) refusal to direct police to lodge FIR in a dispute of a civil nature between the parties pertaining to alleged forgery of thumb impression on an arbitration agreement was upheld by the Supreme Court.

2. In another case, prayer for registration of FIR was refused on the ground inter alia that other remedy of criminal complaint was available with the complainant (1975 SCMR 149), whereas in the case of 'Rai Ashraf and others v. Muhammad Saleem Bhatti and others' (PLD 2010 SC 691) mala fide motives and ulterior intentions of the complainant were also probed by the Supreme Court in a complaint under sections 22-A and 22-B and based whereon, registration of FIR was refused.

3. While taking notice of the trend of frivolous complaints and misuse of sections 22-A and 22-B Cr.P.C., a three Member Bench of the apex Court in the case of 'Haider Ali v. State' (2015 SCMR 1724) at paragraph 9 (ii) of the Judgment, has also recommended action against lodging of false, frivolous and vexatious complaints in the following terms:

"(ii) Serious notice should be taken of frivolous, false or vexatious complaints and where applicable cases should be registered under sections 182 and 211 of the Pakistan Penal Code, 1860."

2025 M L D 1702

[Sindh (Hyderabad Bench)]

Before Riazat Ali Sahar, J

Kashif alias Tomi---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-177 of 2025, decided on 14th April, 2025.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302(b), 324 & 337-H(2)---Qatl-i-amd, attempt to commit qatl-i-amd, rash and negligent act---Bail, dismissal of---Allegations against the accused-applicant were that he along with his co-accused committed murder of the father of complainant and also caused firearm injuries to the friend of deceased---Record revealed that the applicant had been specifically nominated in the FIR with a defined and active role in the commission of the offence---Complainant and eye-witnesses had consistently alleged that the applicant, along with co-accused, being armed with a firearm, launched a deliberate and premeditated assault on the deceased, resulting in his death and caused firearm injuries to his friend---Statements recorded under S.161, Cr.P.C., were in line with the version advanced in the FIR and stood corroborated by the medical evidence---Post-mortem report confirmed that the deceased sustained multiple firearm injuries, which were sufficient to cause death in the ordinary course of nature---Similarly, the Medico-Legal Certificate of the injured witness supported the allegation of gunshot wounds---Ocular and medical evidence were consistent and mutually reinforcing, leaving no apparent contradiction---As for the delay of approximately 16 hours in lodging the FIR, the explanation offered that the complainant and his family were initially occupied with the funeral rites of the deceased was both plausible and in consonance with normal human behaviour under such distressing circumstances---Undoubtedly, the offence with which the applicant was charged fell under Ss.302 and 324, P.P.C, which was punishable with death or imprisonment for life, however, when an offence falls within the prohibitory clause of S.497, Cr.P.C., bail could not be granted as a rule but only as an exception under extraordinary circumstances---However, no such exceptional circumstances had been demonstrated by the applicant to justify the grant of bail---In the instant case, the existence of motive was another strong factor against the applicant as the dispute occurred over the ownership record (Khata) of agricultural land, which created antagonism between the accused and the complainant's father and ultimately that dispute resulted to the tragic incident---When a clear motive was present and linked to the commission of the offence, it served as an additional incriminating factor, which reduced the chances of false implication---Specific allegation and the settled position of law regarding shared criminal intention and direct action, the applicant could not absolve himself merely on the plea of indeterminate bullet trajectory---Accordingly, the applicant had failed to make out a case for the concession of bail---Bail application was dismissed, in circumstances.

Nooruddin and another v. The State 2005 MLD 1267; Kouro and another v. The State 2004 YLR 2434; Mukaram v. The State and another 2020 SCMR 956; Sikandar Hayat v. The State and another 2022 SCMR 198; Itbar Muhammad v. The State and others 2024 SCMR 1576; Naeem Sajid and others v. The State through Prosecutor General Punjab and another 2025 SCMR 129; Allah Dewayo Shahani v. The State through Prosecutor General, Sindh 2023 SCMR 1724; Bilal Khan v. The State through P.G Punjab and another 2020 SCMR 937; Waleed Arfaqat v. The State and another 2021 MLD 1226 and Imtiaz v. Azam Khan and others 2021 SCMR 111 ref.

Bilal Khan v. The State 2020 SCMR 937; Sheqab Muhammad v. The State and others 2020 SCMR 1486; Itbar Muhammad v. The State 2024 SCMR 1576 and Allah Dewayo Shabani v. The State 2023 SCMR 1724 rel.

Ayaz Ali Gopang for Applicant.

Sameeullah Rind for the Complainant.

Siraj Ahmed Bijarani, Assistant Prosecutor General, Sindh for the State.

Date of hearing: 24th March, 2025.

Order

Riazat Ali Sahar, J.---Through the captioned bail application under Section 497, Cr.P.C, the applicant is seeking his admission on post arrest bail in Crime No.83 of 2023 registered at P.S Khadhar offences punishable under Sections 302, 324, 337-H(ii) P.P.C..

1. The complainant, Tarique Aziz, lodged the present FIR, stating that his father, Muhammad Siddique Zardari, had purchased 06-00 acres of agricultural land from Ghulam Irtaza alias Shahrukh Unar, for which the full sale consideration had been paid. However, a dispute later arose between Ghulam Irtaza and the complainant's father regarding the khata (ownership record) of the said land, which caused Ghulam Irtaza to become hostile towards him. On the day of the incident, the complainant, along with his father, Muhammad Siddique Zardari, and other relatives, Asghar Ali and Wahid Ali, was present at their land near Village Umar Bodleja, engaged in water irrigation. Meanwhile, the complainant's father was conversing with his friend, Muhammad Ismail, a resident of Village Ghulam Rasool Shah Colony, Nawabshah. At about 07:30 a.m., four armed accused persons namely Ghulam Irtaza alias Shahrukh Unar armed with a rifle, Rehman armed with a repeater, Kashif alias Tomi armed with a repeater and an unknown person armed with a repeater appeared at the scene. Upon arrival, the accused raised Hakkals (shouted loudly) and, with the intent to commit murder, opened indiscriminate fire on the complainant's father, Muhammad Siddique Zardari, and his friend, Muhammad Ismail. As a result, both sustained firearm injuries and collapsed to the ground while crying. The complainant and his relatives pleaded for mercy in the name of Allah, as such, the accused fled the scene on their motorcycles while firing in the air. The complainant's father, Muhammad Siddique Zardari, sustained gunshot wounds on his abdomen and right thigh, causing severe bleeding, whereas Muhammad Ismail also suffered a firearm injury on his abdomen, with blood plentifully oozing from his wound. Realizing the gravity of the situation, the complainant arranged transport and immediately rushed both injured persons to the hospital. However, on the way, his father, Muhammad Siddique Zardari, succumbed to his injuries. The complainant informed the police, who issued a letter for medical treatment, after which the injured Muhammad Ismail was shifted to PMCH Nawabshah for further treatment. Meanwhile, the body of the deceased was taken to Taluka Hospital Sakrand, where the police of P.S Khadhar conducted the postmortem examination. Upon completion, the body of the deceased was handed over to the complainant for burial. After the funeral ceremony, the complainant proceeded to P.S Khadhar and lodged the present FIR against the accused.

2. Learned counsel for the applicant has contended that the applicant has been falsely implicated in this case by the complainant with mala fide intention and ulterior motives; that the FIR has been delayed by more than 16 hours, and no plausible explanation has been furnished for such a delay, raising serious doubts about the prosecution's version of events; that no motive has been assigned to the applicant for the alleged murder of the deceased, further weakening the case against him; that the complainant has managed a false and fictitious story in connivance with the witnesses who were not actual eye-witnesses to the incident; that neither the complainant was present at the place of occurrence nor is he an eye-witness to the incident, rendering his version of events questionable; that one Asghar Ali informed the police on 10.11.2023 at 1000 hours that his cousin Muhammad Siddique had expired due to receiving firearm injuries and on his information, the police reached the Taluka Hospital Sakrand; that the FIR does not mention the presence of the complainant and his witnesses at the scene, thereby creating doubts regarding the occurrence of the alleged incident as narrated; that the applicant, along with three co-accused, is alleged to have made direct firing upon the deceased and the injured prosecution witness, however, it remains unknown which specific fire of the four accused hit the deceased and the injured PW; therefore, the role assigned to the applicant for firing upon the deceased is doubtful; that all prosecution witnesses are close relatives of the complainant, further raising concerns regarding their impartiality and credibility; that the case has already been challaned and the applicant is no longer required for further investigation; that keeping the applicant in jail for an indefinite period would not serve any purpose for the prosecution. In support of his submissions, learned counsel has relied upon the cases of Nooruddin and another v. The State (2005 MLD 1267), Kouro and another v. The State (2004 YLR 2434), Mukaram v. The State and another (2020 SCMR 956) and Sikandar Hayat v. The State and another (2022 SCMR 198).

3. Learned Counsel for the complainant has opposed the bail application, contending that the applicant, along with co-accused, is specifically nominated in the FIR with a clear role in causing injuries to the complainant's father and injured prosecution witness and as a result of these injuries, the father of the complainant succumbed to injuries and PW Muhammad Ismail sustained injuries; that the FIR was lodged promptly after the incident and any delay in its registration was due to the funeral ceremony of the deceased; that the statements of the prosecution witnesses recorded under Section 161, Cr.P.C., as well as the medical evidence, fully supported the ocular account narrated in the FIR; that the offence committed by the applicant is of a heinous nature, punishable by death or life imprisonment and falls within the prohibitory clause of Section 497, Cr.P.C. He further contended that keeping in view the heinousness of the offence and the strong prosecution evidence, the applicant is not entitled to the concession of bail. In support of his arguments, the learned counsel has relied upon the cases of Itbar Muhammad v. The State and others (2024 SCMR 1576), Naeem Sajid and others v. The State through Prosecutor General Punjab and another (2025 SCMR 129), Allah Dewayo Shahani v. The State through Prosecutor General, Sindh (2023 SCMR 1724), Bilal Khan v. The State through P.G Punjab and another (2020 SCMR 937), Waleed Arfaqat v. The State and another (2021 MLD 1226) and Imtiaz v. Azam Khan and others (2021 SCMR 111).

4. Learned DPG has adopted the arguments advanced by the learned counsel for the complainant and further contends that the applicant is directly nominated in the FIR with a specific role in the commission of the offence, which resulted in the death of the complainant's father and injuries to the prosecution witness. He further contended that the statements of prosecution witnesses recorded under Section 161, Cr.P.C. corroborate the version narrated in the FIR and the medical evidence further supports the prosecution's case and that grant the bail to the applicant at this stage may hamper the trial and pose a serious threat to the prosecution witnesses; hence, the applicant is not entitled to any concession of bail, as the evidence on record, prima facie, connects him with the commission of the offence. He has prayed for dismissal of bail application.

5. I have heard learned counsel for the applicant, learned counsel for the complainant as well as learned D.P.G. Sindh representing the State and perused the entire material available on record including the cases cited at the bar.

6. A meticulous examination of the record reveals that the applicant, Kashif alias Tomi, has been specifically nominated in the FIR with a defined and active role in the commission of the offence. The complainant and eye-witnesses have consistently alleged that the applicant, along with co-accused, being armed with a firearm, launched a deliberate and premeditated assault on the deceased, Muhammad Siddique Zardari, resulting in his death, and caused firearm injuries to PW Muhammad Ismail. The statements recorded under Section 161, Cr.P.C. are in line with the version advanced in the FIR and stand corroborated by the medical evidence. The post-mortem report confirms that the deceased sustained multiple firearm injuries, which were sufficient to cause death in the ordinary course of nature. Similarly, the medico-legal certificate of the injured witness supports the allegation of gunshot wounds. The ocular and medical evidence are consistent and mutually reinforcing, leaving no apparent contradiction. As for the delay of approximately 16 hours in lodging the FIR, the explanation offered that the complainant and his family were initially occupied with the funeral rites of the deceased is both plausible and in consonance with normal human behaviour under such distressing circumstances. The Hon'ble Supreme Court of Pakistan has repeatedly held that minor delays in lodging the FIR in cases involving grave offences, particularly homicide, do not cast serious doubt on the prosecution's case, especially where the delay has been reasonably explained and the ocular account is corroborated by medical evidence. Reference in this regard may be made to Bilal Khan v. The State (2020 SCMR 937), wherein it was held that delay in FIR registration per se does not dilute the credibility of the prosecution's case when supported by reliable evidence. In light of the foregoing, the applicant does not merit the concession of bail at this stage.

7. Undoubtedly, the offence with which the applicant is charged falls under Sections 302 and 324, P.P.C., which is punishable with death or life imprisonment; however, it is well-settled principles of law that when an offence falls within the prohibitory clause of Section 497, Cr.P.C., bail cannot be granted as a rule but only as an exception under extraordinary circumstances. However, no such exceptional circumstances have been demonstrated by the applicant to justify the grant of bail.

8. In the instant case, the existence of motive is another strong factor against the applicant as the disputed occurred over the ownership record (Khata) of agricultural land, which created antagonism between the accused and the complainant's father and ultimately this dispute resulted to this tragic incident. It is worthwhile to note that in such circumstances, the Courts have repeatedly held that when a clear motive is present and linked to the commission of the offence, it serves as an additional incriminating factor, which reduces the chances of false implication.

9. The defence has sought to argue that the identity of the assailant whose gunfire struck the deceased and the injured prosecution witness remains unascertained, thereby attempting to introduce uncertainty with respect to the applicant's individual role. However, this line of argument is devoid of legal merit in light of the settled doctrine of constructive liability enshrined under Section 34 of the Pakistan Penal Code. The record clearly reflects that all four accused persons, including the applicant, acted in concert, arrived together at the scene of the occurrence, and indiscriminately opened fire upon the victims with lethal intent. In such circumstances, where the assailants shared a common intention to commit a homicidal assault, it is not legally requisite to establish whose bullet specifically caused the fatal or injurious wounds. The principle of joint liability imputes equal responsibility upon all participants in the commission of the crime. Moreover, in the present case, the prosecution has attributed a specific role to the applicant in opening fire upon the victims, thereby directly implicating him in the offensive act. It is also a settled principle of law that once a person voluntarily discharges a firearm towards a human target and that target sustains injury or death, intention or knowledge as contemplated under Section 324 or 302, P.P.C. is sufficiently manifested. In this regard, reference may be made to the judgment of the Honourable Supreme Court of Pakistan in Sheqab Muhammad v. The State and others (2020 SCMR 1486), wherein it was held:

"Once the trigger is pressed and the victim is effectively targeted, 'intention or knowledge' as contemplated by Section 324, P.P.C. is manifested; the course of a bullet is not controlled or steered by the assailant's choice nor can he claim any premium for a poor marksmanship."

The ratio of the above decision is fully attracted to the facts of the present case, where the applicant is alleged to have been an active participant in a coordinated assault using firearms. Given the specific allegation and the settled position of law regarding shared criminal intention and direct action, the applicant cannot absolve himself merely on the plea of indeterminate bullet trajectory. Accordingly, the applicant has failed to make out a case for the concession of bail, which, in view of the above discussion and precedent, is liable to be declined.

1. In the case of Itbar Muhammad v. The State (2024 SCMR 1576), the Honourable Supreme Court has held that:

"7. On perusal of record it reflects that this is a case in which one person has lost his life and one person has sustained injuries at the hands of accused persons. Furthermore, the petitioner/accused along with another accused was nominated in the FIR and specific role of firing at the deceased and injured person was attributed to petitioner specifically. P.Ws in their statements have supported the version of the complainant given by him in the FIR. The medical evidence also corroborates the ocular account."

1. Furthermore, reliance may be placed on the judgment of the Honourable Supreme Court in Allah Dewayo Shahani v. The State (2023 SCMR 1724), wherein it was unequivocally held that bail ought not to be granted in cases involving the offence of murder when the accused is nominated with a specific role, particularly where the ocular account is consistent and corroborated by medical evidence. In the said precedent, six accused persons were named with assigned roles in a coordinated assault resulting in homicide, and the Court refused bail, finding that the specific attribution of roles coupled with supporting evidence rendered the case one of deeper probative value requiring trial. The Supreme Court observed that in such serious offences involving direct and active participation, the question of granting bail does not arise merely on the basis of procedural or evidentiary doubts, unless material contradictions are apparent at a preliminary stage. Applying the same reasoning to the present case, where the applicant is similarly nominated with a specific role of having used a firearm resulting in the death of one person and injuries to another, and where the ocular and medical evidence are in harmony, the case is squarely covered by the ratio of Allah Dewayo Shahani (supra). In such circumstances, the grant of bail would be premature and against the settled principles of criminal jurisprudence, particularly in cases involving offences under Section 302, P.P.C. read with Section 34, P.P.C..

2025 M L D 1713

[Sindh (Hyderabad Bench))]

Before Abdul Hamid Bhurgri, J

Balach Khan---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-1347 of 2024, decided on 7th February, 2025.

Criminal Procedure Code (V of 1898) ---

----Ss. 497 & 161---Penal Code ( XLV of 1860 ), Ss. 302, 324, 506(ii) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, criminal intimidation, common intention---Post-arrest bail, grant of---Nomination through supplementary statement---Rule of consistency---Allegation against the petitioner /accused was that he allegedly provided refuge within his residence to the principal accused who was purported to have indiscriminately fired upon three persons, resulting in their demise--Validity---Admittedly, it was the principal accused who directly opened fire on three individuals, culminating in their fatal injuries---First Information Report delineated the incident as an offshoot of a familial and matrimonial dispute---Significantly, the petitioner's name was not originally recorded in the FIR but surfaced subsequently through an additional statement by the complainant---Such statements, made under S.161, Cr.P.C, inherently warranted further judicial scrutiny, as envisaged under subsection (2) of S.497, Cr.P.C.---Petitioner's case was indistinguishable from that of co-accused who was granted bail by the High Court ---Consequently, the petitioner, by the rule of consistency, was equally entitled to bail---Petitioner had been behind bars since his arrest and with the investigation having concluded, his continued detention served no tangible purpose---Given the indeterminate timeframe for the trial's completion, prolonging the applicant's incarceration would be unjustified---Petitioner / accused was admitted to bail, in circumstances.

Nisar Ahmed S. Chandio for Applicant.

Ms. Rameshan Oad, Assistant P.G. for the State.

Date of hearing: 7th February, 2025.

Order

Abdul Hamid Bhurgri, J.---The applicant, having been unsuccessful in securing bail from the Trial Court in Crime No. 223 of 2024, registered at P.S A-Section, Nawabshah, under Sections 302, 324, 506/2, 34 P.P.C., now petitions this Court for his release on bail.

1. The accusation against the applicant is that he allegedly provided refuge within his residence to co-accused Khalid Hussain, who is purported to have indiscriminately fired upon Wahid Bux, Mst. Hamida, and Mst. Rasheeda, resulting in their demise. The FIR attributes the incident to a domestic and matrimonial conflict.

2. The learned counsel for the applicant contends that his client is entirely innocent and has been entangled in this case maliciously by the complainant. It is emphasized that the allegations against the applicant remain vague, centering merely on his alleged act of sheltering co-accused Khalid Hussain, who is the primary perpetrator of the offense. The applicant's name was conspicuously absent from the FIR but was later implicated through a supplementary statement made by the complainant. Furthermore, co-accused Doda Khan, whose involvement is identical to that of the applicant, has already been granted bail by this Court. In light of the principle of parity, the applicant asserts his entitlement to the same relief, arguing that his continued incarceration serves no investigative necessity.

3. The learned Additional Prosecutor General (APG), appearing on behalf of the State, submits that although the applicant's name does not feature in the original FIR, he was later implicated following an additional statement by the complainant. However, the APG does not object to bail, acknowledging that a co-accused with an analogous role has already been granted the same relief.

4. Despite the issuance of notice, the complainant has failed to appear.

5. Having heard the learned counsel for the applicant and the learned APG, and after thoroughly scrutinizing the record, the Court arrives at the following determination.

2025 M L D 1756

[Sindh]

Before Salahuddin Panhwar, J

Shahzia Bibi---Petitioner

Versus

The Province of Sindh through Prosecutor General Sindh and another---Respondents

Constitution Petition No. S-654 of 2023, decided on 3rd August, 2023.

Pakistan Prisons Rules, 1978---

----R. 148---Transfer of prisoner---Conviction and sentence awarded to petitioner's husband in a criminal trial by the Court of Sessions Judge East, Islamabad---Pendency of Criminal Appeal against conviction and sentence before Islamabad High Court---Transfer of custody of petitioner's husband to Karachi for facing trial in two criminal cases registered at Karachi---Petitioner sought the retention of her husband's custody of petitioner's husband at Landhi Jail, Karachi, as he was facing trials in Karachi---Contention of the petitioner was that transferring her husband's custody out of Karachi would cause her and her children significant inconvenience---Validity---Respondents, including the Deputy Prosecutor General and the Advocate General, had no objection to retaining the custody of petitioner's husband at Karachi---Rule 148 of the Pakistan Prisons Rules, 1978 (Rules) permits the transfer of a prisoner to a location closer to their home if they are convicted outside their province, which supported the retention of the petitioner's husband custody at Landhi Prison, Karachi for the reason that he was facing two trials in Karachi and his appeal before the Islamabad High Court did not necessitate his detention outside Karachi---Petitioner's submission included evidence of her residence and the respondents showed no objection to the retention request---High Court disposed of the petition with the observation that the prisoner's custody should be retained in Karachi as his transfer to any prison outside Karachi, such as Adyala Jail in Rawalpindi, would not serve any legal or practical purpose---Petition was disposed of accordingly.

Syed Kamran Shah for Petitioner.

K.A. Wasvani, Assistant A.G. Sindh, Muhammad Anwar, DPP, Tariq Qureshi, Addl. Secretary (Prison) Home Department Government of Sindh for Respondents.

Date of hearing: 24th July, 2023.

Order

Salahuddin Panhwar, J.---The relevant facts for disposal of instant petition are that the husband of the petitioner was convicted vide Judgment dated 18.10.2022 passed by the Court of Sessions Judge East, Islamabad in a case arising out of Crime No.239/2016 registered at P.S. Shalimar, Islamabad, against that judgment a Criminal Appeal No. 383/2022 was filed by the husband of petitioner, which is still pending adjudication before the Islamabad High Court, that there are also two other FIRs bearing Crime No. 258/2021, registered at PS Bahadurabad and Crime No. 523/2021, registered at PS Darakshan, Karachi, which are pending before concerned Courts at Karachi; that custody of the husband of the petitioner was transferred to Karachi under the Court's Order and presently he is confined in the Landhi Jail, Karachi, that the petitioner is permanent resident of Karachi and her sons and daughter are studying in Karachi, that the respondents are threatening the petitioner and causing harassment to the petitioner for re-transter of the custody of her husband, that the petitioner being lady is suffering due to incarceration of her husband who is the only male member. The petitioner and her children are living in Karachi and in case the custody is re-transferred to the prison out of Karachi, it would cause great inconvenience, that the custody of her husband may be ordered to be retained at Landhi Prison as he is required in two criminal cases which are being tried at Karachi and his custody is not required at Islamabad as only his appeal is pending at Islamabad High Court.

1. At the outset, learned DPP while referring Rule 148 of Transter of Prisoners contended that since petitioner's husband has been convicted by learned District and Sessions Judge Islamabad, presently he is facing trial in two criminal cases at Karachi, therefore, as per Rule his custody is to be retained near to his home to serve the sentence, hence, he has no objection if the custody of the husband is retained at Karachi.

2. In similar voice, learned AAG has also extended his no objection, whereas, Additional Secretary (Prison), Home Department present, filed comments. Being relevant, reply of paragraphs 2 and 4 are reproduced herewith:-

"2. It is a fact that two FIRs bearing No. 258/2021 P.S. Bahadurabad and FIR No. 523/2021 P.S. Darakhshan, Karachi have been lodged against lifer convicted Raja Arshad Mehmood.

According to the jail roll of Superintendent, District Prison and C.F. Malir Karachi the last date of hearing was 05.07.2023.

1. In the instant matter, office of the Prosecutor General Sindh has advised the Home Department that "It is advised to not take action as the matter is subjudice otherwise it may cause adverse inference" vide letter No.PGS/Pros:/61/20101/3281 dated 08.11.2022. However, the matter of transfer may be decided by the Honourable Sessions Court East Karachi. Moreover, the application of petitioner has been forwarded to Chief Commissioner, Islamabad Territory Islamabad for comments/NOC vide letter No.HD/SOPRS-II/1-6/2021 dated 15.11.2022. Subsequently reminder has also been issued on 30.05.2023, but the reply of the same is still awaited."

(Underline is supplied for emphasis).

1. Since petitioner's claim is that she is permanently residing in Karachi along with her children who are getting education. In support of her claim, she has submitted electricity bills as well as fee vouchers of her son Ehtesham Arshad studying in Jinnah Sindh Medical University Karachi. Besides, petitioner's counsel contended that petitioner's husband was tried in Islamabad and accordingly, he was convicted; his appeal is pending before Islamabad High Court wherein his custody is not required. However, he further contended that the husband of the petitioner is not required to face trial out of Sindh Province. He further submitted that petitioner's husband is also facing trial of two cases in Karachi. Petitioner has apprehension that her husband will be transferred to Adyala Jail Rawalpindi.

2. At this juncture, it would be conducive to refer Rule 148 of the Pakistan Prisons Rules, 1978 in respect of the Transfer of Prisoners as relied by the learned APG.

Rule 148 of Transfer of Prisoners

2025 M L D 1830

[Sindh (Hyderabad Bench)]

Before Abdul Hamid Bhurgri, J

Dr. Saddam Zia and 2 others---Applicants

Versus

The state and 2 others---Respondents

Criminal Misc. Application No. S-886 of 2024, decided on 26th February, 2025.

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

----Ss. 154, 173 & 561-A---Penal Code (XLV of 1860), Ss. 302(b) & 34---Inherent powers of High Court---Quashing of order---Judicial Magistrate, after taking cognizance of the case, issued directions that the accused/applicants be sent to trial in a case registered under Ss.302 & 34, P.P.C---Validity---Accused/applicants were charged for committing murder of the nephew of complainant---Accused/applicants alleged that the deceased committed suicide---Through present application, the applicants had challenged the order of the Judicial Magistrate, wherein cognizance was taken under Ss.302 & 34, P.P.C---Offence under S.302 P.P.C fell exclusively with the jurisdiction of the Court of Sessions, the matter was accordingly referred to the appropriate forum---Authority of a Judicial Magistrate to diverge from the Investigating Officer's conclusions was confined solely to instances where a report sought disposal of the case or eliminates a specific section of the charges---In such circumstances, the Judicial Magistrate, upon examining the evidence, may independently form an opinion, diverging from that of the Investigating Officer and take cognizance of the offence by accepting the challan or reinstating the omitted charges---Record showed that charge had been framed in the subject case by the Trial Court---Since, the charge had been framed by the Trial Court, it was only appropriate that the applicants sought redressal of their grievance from the said forum, in accordance with law---Any factual determination made by the High Court at this stage may inadvertently prejudice the case of either party---Applicants were at liberty to approach the Trial Court and avail any remedy permissible under the law---Criminal Miscellaneous Application was dismissed, in circumstances.

2006 PCr.LJ 518; 2016 PLD Sindh 300; 2006 MLD 663; 1994 SCMR 122 and 2002 SCMR 1076 ref.

Jalal and 2 others v. The State and another 1972 SCMR 516; Habib v. The State 1983 SCMR 370; Abdul Hafeez Junejo v. The State 2010 SBLR 306 and Amanat Ali v. 1st Civil Judge and J.M Daharki and others 2015 YLR 2312 rel.

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

----S. 561-A---Inherent power of the High Court---Observations of the Court made while deciding an application under S. 561-A, Cr.P.C---Such observations are tentative in nature and should not prejudice the case of either party at the trial.

Ghulam Mustafa Channa for Applicants.

Faqir Rehmatullah Hisbani for Respondent No. 3.

Ms. Sana Memon, APG for the State.

Date of hearing: 17th February, 2025.

Order

Abdul Hamid Bhurgri, J.---Through this Criminal Miscellaneous Application filed under Section 561-A Cr.P.C, the applicants have challenged the order dated 18.12.2024, passed by the learned Civil Judge and Judicial Magistrate-VI, Hyderabad. The impugned order was issued in response to the report submitted by the Investigating Officer under Section 173 Cr.P.C, whereby the learned Magistrate concurred with the Investigating Officer's findings and directed that the accused/applicants be sent to trial in Crime No.47 of 2024, registered under Sections 302 and 34 P.P.C at Police Station B-Section Latifabad, Hyderabad. Consequently, this Criminal Miscellaneous Application has been filed.

1. The brief facts of the case, as narrated in the FIR, are that the complainant is the uncle of Abdul Rehman (deceased). According to the FIR, Abdul Rehman was employed at the clinic of the applicant/accused Dr. Mehwish and had been residing at her residence for the past five years. On 16.03.2024, the complainant received a phone call from the applicant/accused Dr Saddam, informing him that Abdul Rehman had committed suicide and that his body was at Hilal-e-Ahmar Hospital. Upon receiving this information, the complainant, accompanied by his cousin Zulfiqar Ali and Abdul Malik, arrived at the hospital, where Dr Saddam stated that Abdul Rehman had taken his own life by hanging himself from a bathroom hanger at approximately 23:30 hours on 15.03.2024. By the time they arrived, the post-mortem examination had already been conducted. Upon inquiry as to why the post-mortem was performed before their arrival, Dr Saddam failed to provide a satisfactory response. Subsequently, the complainant approached the police station and lodged an FIR, alleging that the applicants/accused Dr Mehwish, Dr Naeem, and others had murdered his nephew Abdul Rehman, who had been residing and working at Dr Mehwish's clinic and residence.

2. The learned counsel for the applicants argued that the impugned order was issued without proper judicial application of mind and in a premeditated and mechanical manner, relying on erroneous assumptions. He contended that the deceased had been residing and working at the clinic of Dr Mehwish, who is a senior gynecologist of BPS-19, while co-accused Dr Naeem and Dr Saddam are also senior government-employed doctors. Given their professional standing, they could not have committed any offence. The post-mortem report explicitly indicated that the deceased had died by suicide, as no signs of violence were found on his body. Furthermore, a second post-mortem, conducted under the order of the learned Magistrate by a medical board, corroborated the findings of the initial post-mortem, confirming that the cause of death was compression of the neck by ligature, resulting in asphyxia. The report further stated that Abdul Rehman had used his vest band (nara) to hang himself in the bathroom. Given the deceased's young age, the counsel argued that had he been murdered, there would have been evident signs of struggle or physical violence, none of which were present on his body. Both post-mortem reports are available on record. He further asserted that the complainant had maliciously lodged a false FIR with the intent to harass and coerce the accused, who are respectable medical professionals, into providing financial compensation. He emphasized that this is a case of conflicting versions, and an individual's liberty, being a fundamental right, cannot be compromised merely on the basis of unsubstantiated allegations lacking evidentiary support. The learned trial Court, he contended, had failed to consider the absence of ocular, circumstantial, or medical evidence substantiating the alleged murder of the deceased. In conclusion, he prayed for justice. In support of his arguments he relied upon case laws reported in 2006 PCr.LJ 518 Karachi, PLD 2016 Sindh 300, 2006 MLD 663 Karachi, 1994 SCMR 122, 2002 SCMR 1076, Un-reported judgment of Hon'ble Supreme Court of Pakistan in Criminal Petition No.58-K of 2023, PLD 2020 Sindh 491, 2024 SCMR 1782 and 2018 YLR 1223 Peshawar.

3. Conversely, the learned counsel for respondent No.3 supported the impugned order, maintaining that the accused had committed the offence and subsequently fabricated a narrative of suicide to cover it up, warranting further investigation. He contended that the allegations of mala fide intent against the complainant were baseless and unsubstantiated. He questioned why the applicants had not informed the legal heirs of the deceased immediately after his demise and why the body had been hastily shifted to the hospital for post-mortem without their consent. These suspicious circumstances, he argued, implicated the accused in the offence, as an innocent person had lost his life. The learned trial Court, he submitted, had rightly accepted the report under Section 173 Cr.P.C and passed the impugned order. Learned counsel contended that the charge has been framed in the subject case by the learned trial Court. Therefore, he urged that the present Criminal Miscellaneous Application, being devoid of merit, should be dismissed. Additionally, the learned Assistant Prosecutor General (A.P.G) for the State endorsed the impugned order, adopting the arguments advanced by the learned counsel for respondent No.3.

4. I have carefully considered arguments put forward by the respective counsels of both parties and learned A.P.G.

5. Through this application, the applicant has challenged the order of the Magistrate-VI, Hyderabad dated 18.12.2024, wherein cognizance was taken under Sections 302 and 34 P.P.C. The offence under Section 302 P.P.C falls exclusively with the jurisdiction of the Court of Sessions, the matter was accordingly referred to the appropriate forum.

6. The legal principle is now firmly established that when an Investigating Officer, upon completing an inquiry, submits a positive report recommending that the accused be sent to trial, the Magistrate lacks the jurisdiction to disregard such a report by either disposing of the case or omitting a specific offence. Once the Investigating Officer, after collecting material evidence, concludes that a particular offence has been substantiated and merits judicial determination, it is not within the Magistrate's competence to set aside such findings, as doing so would require the scrutiny of witnesses. Consequently, it falls within the purview of the trial court-be it a Magistrate's or a Sessions Court-to assess the evidence during trial and determine whether a case has been established or whether sufficient material exists to justify the application of a particular statutory provision, proceeding accordingly in compliance with due process.

7. The authority of a Magistrate to diverge from the Investigating Officer's conclusions is confined solely to instances where a report seeks to dispose of the case or eliminate a specific section of the charges. In such circumstances, the Magistrate, upon examining the evidence, may independently form an opinion, diverging from that of the Investigating Officer, and take cognizance of the offence by accepting the challan or reinstating the omitted charges. The legal precedents set forth in Jalal and 2 others v. The State and another (1972 SCMR Page-516), Habib v. The State (1983 SCMR 370), Abdul Hafeez Junejo v. The State (SBLR 2010 Sindh 306), and Amanat Ali v. 1st Civil Judge and J.M Daharki and others (2015 YLR 2312) affirm that a Magistrate lacks the authority to dispose of a case that the Investigating Officer has recommended for trial following due investigation.

8. The investigation of a criminal case is an exclusive domain of the police. While judicial independence is a fundamental tenet of a democratic system, the autonomy of investigative bodies is equally crucial to the concept of rule of law. Undue interference in each other's domains undermines the doctrine of separation of powers and significantly hampers the administration of justice. This principle has been unequivocally affirmed by the Hon'ble Supreme Court in the case of Muhammad Hanif v. The State (2019 SCMR 2029).

2025 M L D 1906

[Sindh]

Before Muhammad Jaffer Raza, J

Iqbal Ahmed Siddiqui---Appellant

Versus

Khalid Maudod Siddiqui and another---Respondents

IInd Appeal No. 78 of 2023, decided on 6th May, 2025.

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

----Ss.8 & 54---Civil Procedure Code (V of 1908), S.100---Qanun-e-Shahadat (10 of 1984), Arts.117 & 119---Suit for possession, recovery of mesne profit and permanent injunction---Benami transaction, ingredients of---Burden of proof---Second appeal, scope of---Interference in concurrent findings of courts below---Present second appeal was filed by the appellant challenging the concurrent findings of the Trial court and appellate court, both of which had decreed in favour of respondent No.1 regarding possession and mesne profits of the suit property---Trial Court ordered the appellant to hand over vacant possession and pay mesne profits of Rs. 20,000 per month until delivery of possession which decision was upheld in appeal---It was the case of the appellant/defendant that respondent No.1 was neither the bona fide purchaser nor absolute owner of the suit property; that the suit property was originally purchased by the appellant's deceased father and paternal uncle (respondent No.1's father) in a benami transaction, and was held in trust by the latter for the legal heirs; that no consideration was paid for the transfer of the property to respondent No.1, which was based solely on a registered gift deed---Held: Appellant/defendant had neither sought cancellation of the gift deed nor filed suit for declaration that the subject property was owned by his deceased father---Moreover, paternal uncle of appellant who was stated to be the custodian of the suit property allegedly held in trust for the purpose of administration, did not file any application to be impleaded as party in the suit---Further, there was no evidence on record to reflect that the donor challenged the gift deed---The ingredients of a benami transaction were not even pleaded by the appellant and the courts below had correctly observed that the entire defense of the appellant was based on his oral and unsubstantiated assertions---Burden of proving the benami transaction was correctly placed on the appellant and same was in accordance with Art. 117 & 119 of the Qanun-e-Shahadat, 1984---No infirmity was found warranting interference by the High Court in concurrent findings of courts below as jurisdiction under S.100 C.P.C. was restricted as there was no misreading or non-reading of evidence or perverse appreciation of evidence on record.

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

----S.42---Qanun-e-Shahadat (10 of 1984), Art.117---Benami declaration---Onus to prove---Scope---Onus to prove in a suit for benami declaration lies upon plaintiff---The reason being that it is the plaintiff who has come to the Court to seek such declaration which is in fact a positive declaration being sought by the plaintiff---In terms of Art.117 of the Qanun-e-Shahadat, 1984, the onus to prove a claim is on the person who asserts such claim---It is not that plaintiff can come to the Court and thereafter, on the basis of defendants evidence try to make out its case---It was the plaintiffs who had sought a declaration of benami transaction and had prayed to give judgment as to their alleged legal right on the basis of facts asserted by them, therefore, it was for them to prove that those facts existed for which the burden laid on them.

Manzoor Butt v. Mahmud Sufi 2016 CLC 1284 ref.

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

----S.42---Benami transaction---Proof---Necessary ingredients---Two essential elements must exist to establish the benami status of a transaction---The first element is that there must be an agreement express or implied between the ostensible owner and the purchaser for purchase of the property in the name of ostensible owner for the benefit of the person who has to make payment of the consideration; and second element required to be proved is that transaction was actually entered between the real purchaser and seller to which ostensible owner was not a party.

Ch. Ghulam Rasool v. Nusrat Rasool PLD 2008 SC 146 rel.

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

----S.100---Second appeal---Interference in concurrent findings of courts below---Scope---It is settled law that concurrent findings are not interfered with under S.100 of the C.P.C. unless the lower courts have misread the evidence on record, or may have ignored a material piece of evidence on record through perverse appreciation of evidence.

Faqir Syed Anwar-ud-Din v. Syed Raza Haider and others PLD 2025 SC 31 rel.

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

----S.100---Second appeal---Reappraisal of evidence---Scope---Reappraisal of evidence on record by the second appellate court is not permissible while exercising jurisdiction under S.100 of C.P.C.

Faqir Syd Anwar-ud-Din v. Syed Raza Haider and others PLD 2025 SC 31 rel.

Syed Nadeem-ul-Haq for Appellant.

Adnan Ahmed for Respondents.

Date of hearing: 6th May, 2025.

Judgment

Muhammad Jaffer Raza, J.---Instant 2nd Appeal has been preferred against Impugned judgment and decree dated 09.03.2023 passed in Civil Appeal No.75/2021 by the VI-Additional District Judge/Model Civil Appellate Court-Ext., Karachi Central. The said civil appeal emanated from the judgment and decree dated 26.02.2021 passed in Suit No.1174/2015 by the XIth Senior Civil Judge, Karachi Central, which was filed by the Respondent No.1. Facts of the case are summarized as follows: -

1. Suit No.1174/2015 was filed by the Respondent No.1, with the following prayers: -

a) defendants be directed to hand over vacant the peaceful vacant possession of the suit property bearing plot No.C1-200 admeasuring 120 square Yards, situated in Sector 16-B, North Karachi Industrial Area, Karachi;

b) defendants further directed to ensure regular payment of utility bills of the suit property and continue the same till delivery of vacant possession and to submit the paid copies of utility bills before this Hon'ble Court;

c) defendant No.2 be directed to pay/deposit regularly the monthly rent for first and 2nd floor of suit property @ of Rs.40,000/- with the Nazir of this Hon'ble Court, in the case the defendant No.2 fails to deposit said monthly rent, then the defendant No.1 be directed to deposit before Nazir of this Hon'ble Court an amount Rs.2000/- as Mesne profit of the suit property w.e.f. 28.09.2014 till final disposal of instant matter;

d) perpetual injunction be granted by restraining the defendants their legal heirs, servants, agents, attorney and or any other person and/or persons acting or claiming on their behalf from selling out renting out, mortgaging and/or creating any third party interest and whatsoever in respect of the suit property, i.e. plot No.C1-199, admeasuring 120 square yards, situated in Sector 16-B, North Karachi Industrial Area, Karachi;

e) cost of the suit be awarded;

f) any other relief deemed fit and proper by this Honorable court under the facts and circumstances of the case, may also be granted in favor of the plaintiff;

1. After recording of evidence of the respective parties, instant suit was decreed vide judgment and decree dated 26.02.2021. The suit of the Respondent No.1 was decreed to the extent that the Appellant was directed to handover the vacant physical possession of the suit property within thirty (30) days from the date of judgment and decree and clear all utility bills of the suit property. The Appellant was further directed to pay mesne profit of the suit property to the Respondent No.1 at the rate of Rs.20,000/- per month till handing over physical possession of the suit property. The said judgment and decree were Impugned in Civil Appeal No.75/2021 and the same was dismissed vide Impugned judgment and decree. Learned counsel for the Appellant through the instant IInd appeal, has Impugned the concurrent findings of the Courts below.

2. It has been argued by the learned counsel for the Appellant that the Respondent No.1 is neither the bona fide purchaser of the suit property nor the absolute owner of the suit property, which according to learned counsel, was purchased by the father of the Appellant ("deceased") and Respondent No.1, as a benami transaction. The subject property stood in the name of Mashhood Ahmed Siddiqui brother of the deceased. It was asserted by the learned counsel for the Appellant that the Appellant never paid any consideration to the said Mashhood Ahmed Siddiqui and the said property was transferred in the name of the Respondent No.1 without any sale consideration whatsoever. It was contended by the learned counsel for the Appellant that the same was done in good faith, in trust for legal heirs of the deceased. He has further stated that considering that the subject property was not purchased by the Respondent No.1 and was only kept in trust for the legal heirs, the Appellant cannot be dispossessed from the property in question. He has also stated that he has invested substantial sums of money in the subject property from his own resources and the subject property in question is in his possession.

3. Conversely, learned counsel for the Respondent No.1 has stated that he is the exclusive, lawful and registered owner of the subject property through declaration of oral gift deed dated 12.03.1990. The said gift deed was executed in his favour by his deceased paternal uncle, namely, Mashhood Ahmed Siddiqui and subsequently transfer letter dated 12.04.2005 was issued in favour of the said Respondent. He has further stated that the Appellant has impugned the concurrent findings of the Courts below, and the same require no interference as the same are legally sound and based upon the evidence recorded by the respective parties.

4. I have heard the learned counsel for the parties, perused the record with their able assistance. I have also asked the learned counsel for the Appellant specifically whether he has sought any cancellation of said registered gift deed in favour of the Respondent No.1. Learned counsel for the Appellant in this respect has replied in the negative and stated that no such suit has been filed. I have further inquired whether any suit for declaration has been filed claiming or seeking a declaration that the subject property was owned by his deceased father. Expectedly, the answer of this question was no different. Learned counsel has further stated that his paternal uncle namely, Mashhood Ahmed Siddiqui, was the custodian of the said property, which was to be held in trust for the purposes of administration. However, it is noted that the said individual i.e. paternal uncle did not file any application to be impleaded as a party in the above-mentioned suit. Further, there is no evidence on record to reflect that the donor namely Mashood Ahmed Siddiqui challenged the said gift deed. The ingredients of benami were elaborated by the Honourable Supreme Court in the case of Ch. Ghulam Rasool v. Nusrat Rasool wherein it was held as under: -

"This may be seen that two essential elements must exist to establish the benami status of the transaction. The first element is that there must be an agreement express or implied between the ostensible owner and the purchaser for purchase of the property in the name of ostensible owner for the benefit of the person who has to make payment of the consideration and second element required to be proved is that transaction was actually entered between the real purchaser and seller to which ostensible owner was not party." (Emphasis added)

1. Reliance in this regard can also be placed on the case of Manzoor Butt v. Mahmud Sufi wherein the ingredients pertaining to benami were expounded in the following words: -

"It is pertinent to observe that this is a Suit for Benami declaration and per settled law the onus lies on the plaintiff in such matters. The reason being that it is the plaintiff who has come to the Court to seek such declaration which is in fact a positive declaration being sought by the plaintiff. In terms of Article 117 of the Qanun-e-Shahadat Order, 1984, the onus to prove a claim is on the person who asserts such claim. It is not that plaintiff can come to the Court and thereafter, on the basis of defendants evidence tries to make out its case. It is the plaintiffs who have sought a declaration of benami transaction and have prayed to give judgment as to their alleged legal right on the basis of facts asserted by them, therefore, it is for them to prove that those facts exist for which the burden lies on them.

1. In a Suit for Benami declaration, the plaintiff has to show that firstly there was a motive and reason to buy such property as Benami, and thereafter once such motive has been shown, the plaintiff must also show that, the subject property was purchased from its resources. If these two things are missing in a positive manner, then perhaps the Court cannot consider any further evidence." (Emphasis added)

2. Admittedly, none of the above ingredients were even pleaded by the Appellant and the courts below have correctly observed that the entire defense of the Appellant was based on his oral and unsubstantiated assertions. It is also observed that the case of the present Appellant is at weaker footing in comparison with the judgement in the case of Manzoor Butt (supra) for the reason that the said Appellant never filed a suit for declaration and cancellation pertaining to the subject property. This for the Appellant, proved to be fatal to his claim. It is held in the same vein, that the learned trial court correctly placed the burden of proving the benami transaction on the Appellant and the same was in accordance with Articles 117 and 119 of the Qanun-e-Shahadat Order, 1984.

8.(sic) Further, certain admissions made by the Appellant during his cross-examination also extinguished his plea pertaining to his claim. Relevant portions of the cross-examination are reproduced below: -

2025 M L D 1918

[Sindh]

Before Adnan Iqbal Chaudhry, J

Muhammad Rafiq---Applicant

Versus

The State---Respondent

Criminal Bail Application No. 782 of 2024, decided on 24th April, 2024.

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

----S. 497(1), third-proviso clause (b)---Penal Code (XLV of 1860), S. 396---Dacoity with murder---Post-arrest bail, grant of---Statutory ground of delay in conclusion of trial---Charge framed by the Trial Court against the applicant could be punished with death, therefore, for the ground of statutory delay, the period of delay to be considered was of 2 years under clause (b) of the third-proviso to S.497(1), Cr.P.C.---Whether said period of 2 years was to be reckoned from the date of arrest or commencement of 'trial' i.e. date of framing charge---Held: Period of 2 years is to be reckoned from the date of arrest for counting the period for the statutory ground of delay---Statutory ground of delay is to be considered from the date of arrest/detention---Date of framing charge is of little importance---Intent being that the trial should be conducted expeditiously and pre-conviction detention should not exceed 2 years---In the present case, the applicant was in detention for 2 years before he moved the application for bail on the statutory ground of delay---Applicant was entitled to bail on the statutory ground of delay under the third proviso to S.497(1),Cr.P.C.---Bail was granted to the applicant, in circumstances.

Ali Akbar v. The State 2020 SCMR 1225; Shakeel Shah v. The State 2022 SCMR 1 and Nadeem Samson v. The State PLD 2022 SC 112 ref.

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

----S. 497(1), third & fourth provisos---Penal Code (XLV of 1860), S. 396---Dacoity with murder---Post-arrest bail, grant of---Statutory ground of delay in conclusion of trial---Scope---In the present case, the applicant was in detention for 2 years before he moved the application for bail on the statutory ground of delay---Regarding the first exception, the act or omission by the accused to delay trial must be a visible concerted effort orchestrated by him---Regarding the second exception, the words hardened, desperate or dangerous mean a person who would be a serious threat to society if set on bail---The final challan was filed in Court after nearly 4 months of the applicant's arrest---From the diary of the Trial Court it appeared that the I.O. took his sweet time to complete the investigation and the Trial Court had to issue show-cause notices to him before he filed the final challan---Thereafter, the matter was delayed either for a supplementary report or for transfer of the case to the Sessions Judge or due to the non-production of accused persons by the jail authorities, none of which could be attributed to the applicant---Even after the framing of charge, the case diary did not show any delay on the part of the applicant, rather it was the prosecution which had not examined a single witness since then---Therefore, the first exception to the ground of statutory delay could not be urged by the prosecution---Applicant was implicated in an another FIR for the offence under S.7 of the Anti-Terrorism Act, but he was tried and acquitted in that case---No record of any other case of the nature was pending against the applicant---Therefore, thus far, there was nomaterial before the Court to allege that the applicant was a dangerous criminal or that he was accused of an act of terrorism punishable with death or imprisonment for life, hence the second exception to the statutory ground of delay was also not attracted to deny bail---Applicant was entitled to bail on the statutory ground of delay under the third proviso to S.497(1),Cr.P.C.---Bail was granted to the applicant, in circumstances.

Shakeel Shah v. The State 2022 SCMR 1 ref.

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

----S. 497(1), third & fourth provisos---Penal Code (XLV of 1860), S. 396---Dacoity with murder---Post-arrest bail, grant of---Statutory ground of delay in conclusion of trial---Scope---Submission of the prosecution being that the applicant had been identified by two eye-witnesses at an identification parade as the person who fired upon the deceased---Validity---Evidence was yet to be tested at trial---In any case, the bail on the statutory ground of delay is of right and not by way of discretion and it cannot be defeated but for the exceptions discussed in the third and fourth proviso to S.497(1),Cr.P.C.---Applicant was entitled to bail on the statutory ground of delay under the third proviso to S.497(1),Cr.P.C.---Bail was granted to the applicant, in circumstances.

Zahid Hussain Shah v. The State PLD 1995 SC 49 and Muhammad Usman v. The State 2024 SCMR 28 ref.

Tahir-ur-Rehman Tanoli for Applicant.

Zafar Ahmed Khan, Additional Prosecutor General for the State.

Date of hearing: 24th April, 2024.

Order

Adnan Iqbal Chaudhry, J.---The Applicant seeks post-arrest bail in the aforesaid crime on the statutory ground of delay after the same has been declined by the trial court vide order dated 18-03-2024.

1. Per the FIR, on 16.01.2022, three persons on a motorcycle robbed the Complainant's shop when it was manned only by his son who was shot in the process; that the Complainant, who resided above the shop, reached the scene after hearing the gun shot; and according to him, the crime was witnessed by residents of the vicinity including Abdul Rehman and Qurban. The Complainant's son eventually succumbed to the injury and passed away.

2. The Applicant was arrested on 12.03.2022. At that time he was already under arrest in FIR No. 132/2022 lodged at P.S. Gulshan-e-Maymar for offences under sections 253, 324 P.P.C read with section 7 ATA. He was produced before the Magistrate for an identification parade on 17.03.2022, where he was identified by the aforesaid eye-witnesses as the person who fired at the deceased.

3. Heard learned counsel for the Applicant, learned Additional Prosecutor General, Sindh and perused the record.

4. The FIR was lodged for offences under sections 392, 397, 34 P.P.C. However, the charge framed by the trial court against the Applicant is for the offence under section 396 P.P.C i.e. dacoity with murder which can be punished with death. Therefore, for the ground of statutory delay, the period of delay to be considered is of 2 years under clause (b) of the third-proviso to section 497(1) Cr.P.C.

5. Per learned Prosecutor, the aforesaid period of 2 years is to be reckoned from the date of commencement of 'trial' and hence the date the charge was framed which was 22.11.2023. On the other hand, learned counsel for the Applicant relies on Ali Akbar v. The State (2020 SCMR 1225) to submit that the period of 2 years was to be reckoned from the date of arrest which was 12.03.2022. Indeed, in Ali Akbar, the Supreme Court counted the period for the statutory ground of delay from the date of arrest. More recently, that point has been discussed more elaborately by the Supreme Court in Shakeel Shah v. The State (2022 SCMR 1), and reiterated in Nadeem Samson v. The State (PLD 2022 SC 112), where it has been held that the statutory ground of delay is to be considered from the date of arrest/detention, and that the date of framing charge is of little importance, the intent being that the trial should be conducted expeditiously and pre-conviction detention should not exceed 2 years. In the instant case, the Applicant was in detention for 2 years before he moved the application for bail on the statutory ground of delay.

6. There are two exceptions to the ground of statutory delay provided in section 497(1) Cr.P.C. The first is in the third-proviso itself viz. where delay in the trial has been occasioned by an act or omission of the accused or any other person acting on his behalf. The second exception is in the fourth-proviso viz. where the accused is a previously convicted offender for an offence punishable with death or imprisonment for life, or a hardened, desperate or dangerous criminal, or is accused of an act of terrorism punishable with death or imprisonment for life. The scope of these exceptions is also discussed in the case of Shakeel Shah. As regards the first exception, it was observed that the act or omission by the accused to delay trial must be a visible concerted effort orchestrated by the accused. As regards the second exception, it was observed that the words 'hardened, desperate or dangerous' mean a person who would be a serious threat to society if set on bail.

7. The final challan was filed in Court on 06.07.2022 i.e. after nearly 4 months of the Applicant's arrest. From the diary of the trial court it appears that the I.O. took his sweet time to complete the investigation, and the trial court had to issue show-cause notices to him before he filed the final challan. Thereafter, the matter was delayed either for a supplementary report, or for transfer of the case to the Sessions Judge, or due to the non-production of accused persons by the jail authorities, none of which can be attributed to the Applicant. Even after the charge was framed on 22.11.2023, the case diary does not show any delay on the part of the Applicant, rather it is the prosecution which has not examined a single witness since then. Therefore, in the circumstances of the case, the first exception to the ground of statutory delay cannot be urged by the prosecution.

2025 M L D 1574

[Sindh (Hyderabad Bench)]

Before Abdul Hamid Bhurgri, J

Ameer Bux---Appellant

Versus

Maqsood and another---Respondents

Criminal Misc. Application No. S-863 and M.As Nos. 12643 and 12644 of 2024, decided on 13th February, 2025.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 324, 436, 427, 504, 147, 148 & 149---Attempt to commit qatl-i-amd, mischief by fire and explosive substance, mischief causing damage to the amount of fifty rupees, intentional insult with intent to provoke breach of the peace, rioting, rioting armed with deadly weapons, unlawful assembly---Bail, cancellation of---Record reflected that after registration of case the accused moved an application for grant of pre-arrest bail before the Trial Court, which granted ad-interim pre-arrest bail to him and later on his interim pre-arrest bail was confirmed vide order dated 19.07.2024, which was impugned---Admittedly, there was a dispute between the parties, as disclosed in the memo of FIR as well as Trial Court's order---Furthermore, the strong and cogent reasons were required for recalling of bail granting order, if the bail granting order was perverse or disregarded to the principle regulating grant of bail---Applicant/complainant was unable to demonstrate the principles governing the cancellation of bail---As per tentative assessment, the grounds for cancellation of bail as agitated by the complainant could only be thrashed out at the time of recording evidence of the parties---Since the trial was yet to begin thus no fruitful result would come out to recall the pre-arrest bail order as impugned---No cogent grounds had been established by the applicant to warrant the cancellation of bail---Order granting bail was founded upon settled legal provisions, and thus, no interference was justified---Application for cancellation of bail was dismissed in limine, in circumstances.

Muhammad Azhar v. Dilawar 2009 SCMR 1202 rel.

Abdul Rasheed Abro for Applicant/Complainant.

Date of hearing: 13th February, 2025.

Order

Abdul Hamid Bhurgri, J.---The applicant / complainant through the captioned Criminal Miscellaneous Application under Section 497(5), Cr.P.C seeks cancellation of bail granted to respondent 1 by the learned Sessions Judge, Badin in Cr. Bail Application No.1007 of 2024 (Re-Maqsood v. The State), arising out of Crime No.356 of 2024 registered at Police Station Badin, under Sections 324, 436, 147, 148, 149, 504, 427, P.P.C vide order dated 19.07.2024.

1. The facts of the case are already stated in the memo. of this application, therefore, there is no need to reproduce the same for the sake of brevity.

2. The learned counsel contended that the grant of bail to the accused/respondent No.1 contravenes established principles of law, as a specific role has been explicitly assigned to the respondent/accused. He further argued that there exists compelling evidence on record, which unequivocally links the respondent to the alleged offense. He urged that the respondent / accused after granting bail by the trial Court is misusing the concession of bail by issuing threats to the applicant / complainant. He further submitted that the respondent / accused was nominated in the promptly lodged FIR with specific role, however, the learned trial Court by ignoring the same and without considering the record has granted bail to the accused. Additionally, he submitted that following the grant of bail, the accused resorted to intimidatory tactics, coercing the complainant into withdrawing from the case. He requested that bail of the accused may be recalled.

3. Having meticulously considered the arguments advanced by the learned counsel for the applicant, thoroughly examined the case material, and scrutinized the impugned order issued by the Trial Court, the learned Sessions Judge delivered the following operative findings:

"Apparently, applicant/ accused person is nominated in FIR with the role that he made fire which hit to tractor. The main contention of learned defence counsel that no any person sustained any injury; apparently from perusal of FIR, no any person sustained any injury. The other main plea of learned defence counsel that there is civil nature dispute between the applicant's father and one Shakoor; such version was not rebutted by learned complainant's counsel. The other main plea of learned applicant's counsel that as per FIR, only one tire of tractor was shown to have been burnt. As per photographs provided by complainant, one cot was shown to have been burnt. S-far plea of learned complainant's counsel that applicant/ accused is involved in two other cases; admittedly, each case is to be decided on its own facts and circumstances. When as per FIR no any person sustained any injury and no photograph showed the tractor was burnt. Moreover, when during the course of arguments the complainant was asked which tire of tractor either front or rear was damaged, he failed to reply satisfactorily. Moreover there is apparently dispute between the parties over the land, therefore, case of the applicant/ accused needed further inquiry."

2025 M L D 1584

[Sindh (Hyderabad Bench)]

Before Miran Muhammad Shah and Muhammad Hasan (Akber), JJ

Mst. Zahida---Appellant

Versus

The State through Chairman Nab and another---Respondents

Criminal Bail Application D-27 of 2025, decided on 21st March, 2025.

Criminal Procedure Code (V of 1860)---

----S.497(1), first proviso---National Accountability Ordinance (XVIII of 1999), S. 9---Anti-Money Laundering Act (VII of 2010), Ss. 3 & 4---Corrupt practices, money laundering---Bail, grant of---Allegations against the accused-petitioner were that she connived with other accused by illegally acquiring pecuniary advantage/crime proceeds---Applicant was a female and was also of advance age of about 80 years, with fragile health---Applicant was a housewife and there was no previous record of her business activity or her previous conviction---Fact of grant of relief of interim bail to the applicant by the Accountability Court and the absence of allegation of misuse of such bail was also part of record---Moreover, there also appeared no likelihood that the applicant, if released on bail, after securing sufficient sureties, would abscond to escape trial, or tamper with the prosecution evidence or influence the prosecution witnesses to obstruct the course of justice, or repeat the offence---Thus, the case of the applicant was fully covered by the first proviso to S.497(1), Cr.P.C.---Bail application was accepted, in circumstances.

PLD 2022 SC 764; 2023 SCMR 887; 2025 PCr.LJ 15; 2022 PCr.LJ 883; PLD 2022 SC 497; 2017 PCr.LJ 416; 2023 MLD 400; 2024 SCMR 1419 and PLD 2022 SC 743 ref.

PLD 2022 SC 764; 2024 SCMR 1528; 2023 SCMR 887; 2023 SCMR 383; 2023 SCMR 1729; 1994 SCMR 1729; 2025 PCr.LJ 15; 2002 MLD 639; PLD 1995 SC 34; 2009 SCMR 1488; PLD 2017 SC 733 and PLD 2021 SC 799 rel.

Farooq H. Naek, Talmoor Ali Mangrio and Syed Qasim Ali Shah for Applicant.

Moazam Ali, Special Prosecutor NAB Hyderabad for Respondents.

Date of hearing: 13th March, 2025.

Order

Muhammad Hasan (Akber), J.---The Applicant is aggrieved by the order dated 26.02.2025, ("impugned order") whereby the learned Accountability Court No.1 Hyderabad dismissed her post-arrest bail application in NAB Reference No.2 of 2021 (The State V. Munawar Ali Bozdar and others) for the offences allegedly committed under section 9(a) of the National Accountability Ordinance, 1999 (NAB Ordinance) and sections 3 and 4 of the Anti-Money Laundering Act, 2010 (AMLA).

1. We have heard the learned counsel for the parties and examined the record. Brief background of the case is that FIR No.G-0-01/2020 dated 03.03.2020 was registered at P.S Thatta Anti-Corruption Establishment Sindh, against misappropriation and embezzlement of funds allegedly committed by the officers of the Right Bank Out Fall Drain (RBOD-II), Irrigation Department Government of Sindh and its contractors under the garb of flood, lighting/ emergent works. Thereafter, application under section 16-A of the NAB Ordinance was filed before the learned Special Judge Anti-Corruption (Provincial) Hyderabad and vide order dated 15.01.2021, the matter was transferred to the Accountability Court Sindh at Hyderabad. NAB's Investigation, in the form of Investigation Report, culminated into filing of Reference No.2 of 2021. The present applicant (Mst. Zahida) has been arrayed as accused No.9 in the said reference, who is the mother of the accused Muhammad Faheem Soomro. The allegations against the present applicant in the reference, as narrated at para-14 are as follows:

"That investigation further revealed that accused No.9 (Zahida) connived with accused No.8 (Muhammad Faheem Soomro) by illegally acquiring pecuniary advantage / crime proceeds to the tune of Rs.153,274,000/- from accused No.37 (Manzoor Ali Solangi) i.e Rs.47,974,000/- into her joint account with accused No.8 (Muhammad Faheem Soomro), Rs.105,300,000/- to make payments for plot No.310 measuring 2,000 sq. yards (29th Street, DHA Phase VIII, Karachi. She in active connivance with accused No.8 (Muhammad Faheem Soomro) then transferred the plot No.310 acquired through crime proceeds in his name, who got it bifurcated the same into 02x plots and transferred them in the names of accused No.12 (Hassan Soomro) and accused No.12 (Mahvish Faheem Soomro)."

1. The applicant moved an application under section 498, Cr.P.C based whereon, ad-interim pre-arrest bail was granted by the Accountability Court, which was later on declined vide order dated 08.02.2025. Thereafter post-arrest bail was filed by the applicant before the learned Accountability Court, which was also declined vide order dated 26.02.2025.

2. At the very outset, it has been argued by learned senior counsel that the applicant has been falsely roped in this case and contends that applicant is a female and an old age lady of about 80 years, with poor health and she is a housewife, who has never been a working lady with no record of business activity and is not a previous convict, hence her case falls under the Proviso to section 497, Cr.P.C.; that Charge has already been framed in the case (page 229 of the court file) and there are around 71 witnesses in the Reference, however not a single witness has been examined till date despite passing of four years, and there is no likelihood of conclusion of the trial in near future; that the applicant is the mother of the accused Muhammad Faheem Soomro (accused No.8) and joint account holder with him whereas she had no knowledge about deposit of the subject money in the joint account; that being a joint account holder would not automatically make her part of the alleged crime, nor could mens rea be presumed automatically against her only for being the mother and joint account holder with her son; that no material was available on record to establish her conscious participation in the crime with the alleged contractors. Per learned counsel, not a single shred or material was available to establish that the applicant had the knowledge at the relevant time, about the said funds being crime proceeds. With respect to the purchase of property No.310, Phase VIII, DHA, Karachi, it was argued that no record has been produced by the prosecution in the Investigation to the effect that the applicant was personally and knowingly withdrawing or utilising such amount out of the subject five entries; nor was she aware about the source of consideration in purchase of the property; that the present owner of the property namely Saleem Malik has not been arrayed as an accused but prosecution has extended benefit of doubt and made a Prosecution witness, hence on the same analogy, the applicant is also entitle to benefit of doubt as well; that it has not even been alleged by the prosecution that applicant is the ultimate beneficiary of the funds obtained through sale of the said property. It was further pleaded that the entire case is based upon documentary evidence, which has already been collected and even Charge has been framed, hence the accused is not required for any investigation, nor is there any possibility of the accused tempering with the prosecution evidence or influencing any witness by the applicant and that no purpose would be served by keeping the female accused behind bars for indefinite period. It was also argued that the earlier interim Pre-arrest bail granted to the applicant was never misused or skipped by her, nor is there any possibility of her absconding or tempering with witnesses or the documentary evidence which is already in custody of NAB. It was finally submitted that after the latest amendment in the NAB Ordinance in the year 2022, the Court is empowered to grant bail under section 17 (a) thereof. Reliance was placed upon PLD 2022 SC 764, 2023 SCMR 887, 2025 PCr.LJ 15, 2022 PCr.LJ 883; PLD 2022 SC 497, 2017 PCr.LJ 416 and 2023 MLD 400.

3. Conversely, the learned Special prosecutor NAB, duly assisted by the Investigation Officer ably argued the matter and vehemently opposed the bail petition. He drew attention to various documents in the Investigation Report and the Reference, including pages 229, 197, 131 and paragraph 17 of the Reference to show that during 2018, money was deposited in the joint bank account of the applicant and her son accused Muhammad Faheem Soomro and that plot was purchased in the name of the applicant through crime proceeds in the name of Mst. Zahida, which was later on bifurcated and then transferred in the name of Mst. Mahwish and her son Hasan Soomro and ultimately sold to the subsequent purchaser Saleem Malik, the Prosecution Witness. He placed reliance upon 2024 SCMR 1419 and PLD 2022 SC 743.

2025 M L D 1598

[Sindh]

Before Salahuddin Panhawar and Adnan-ul-Karim Memon, JJ

Ghulam Abbas---Applicant

Versus

Senior Superintendent Police Investigation-III Karachi and 7 others---Respondents

Criminal Misc. Application No. 1020 of 2024, decided on 7th November, 2024.

Penal Code (XLV of 1860)---

----Ss. 452, 506(B), 147, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 561-A---Inherent powers of High Court---Quashing of order---Complainant alleged that a group of five or more people unlawfully entered into his house with the intent to harm, disturb the peace, and threaten his family---Investigating Officer submitted a report for disposal of the case under "C" class---Judicial Magistrate agreed with the report of Investigating Officer vide order, which was impugned---Validity---In the present case, the police report revealed a contrary story with the narration that there was a dispute between a complainant/lawyer and his clients over unpaid legal fees---Complainant accused the clients of assault, but the police investigation found no supporting evidence---Witnesses claimed the complainant and his sons attacked the accused's house---One accused had an alibi and the complainant failed to seek medical attention for his allegedly injured sons---Due to insufficient evidence, the police released the accused and submitted a "C" class report to the Court which investigation report was accepted vide impugned order---Investigating Officer was responsible for conducting a thorough investigation, considering all evidence and perspectives---Final report should be based on facts, not just the complainant's version---Judicial Magistrate, empowered by S.190 of the Cr.P.C, had the authority to review the police report and decide whether to take cognizance of the case, regardless of the police's recommendation---"C-class" disposal did not necessarily mean the case was closed forever---Right to file a direct complaint was available to the complainant who had been aggrieved by the decision of the Presiding Officer of the Anti-Terrorism Court to dispose of the case under the 'C' class---However, it was made clear that in a direct complaint, the burden of proof lied with the complainant---Criminal Miscellaneous Application was disposed of accordingly.

Rana Muhammad Imran Nasarullah v. The State 2022 SCMR 1946; Mst. Sughran Bibi v. The State PLD 2018 SC 595; Muhammad Akbar v. State 1972 SCMR 335 and Falak Sher v. State PLD 1967 SC 425 rel.

Sardar Abdul Hameed for Applicant.

Mumtaz Ali Shah, Assistant PG for Respondents.

Date of hearing: 7th November, 2024.

Order

Adnan-ul-Karim Memon, J.---The Applicant Ghulam Abbas alleges that on 05.07.2024, the private respondents forcefully entered his house, assaulted him and his sons, and threatened them with weapons. The petitioner claims that the trial Court's order of 22.08.2024 canceling the FIR No.292 of 2024 under Sections 452, 147, 148, 149, 506-B, P.P.C read with Section 7 of the Anti-Terrorism Act, 1997 ("ATA") is the erroneous decision and may be set aside. An excerpt of the order dated 22.8.2024 is reproduced as under:-

"Heard accepted."

1. It is contended by the learned counsel for the Applicant that the trial Court's order granting bail to respondents Nos.3 to 7 was hasty, erroneous, and based on misreading of facts. The applicant further alleges that the police officers involved in the case acted with mala fide intentions and violated legal procedures. The Applicant seeks setting aside the bail order, re-investigation of the case by an honest officer, and inquiry against the police officers for their misconduct.

2. Learned APG has supported the impugned order agreed by the Magistrate with the report of the Investigating Officer for disposal of the case under "C" Class.

3. We have heard the learned counsel for the parties present in Court and have perused the material available on record.

4. The questions involved in the present proceedings are whether the offenses under Sections 452, 147,148,149 506-B, P.P.C read with Section 7 of the ATA were/are made out to allow the prosecution to proceed with the matter for decision on merit. And whether the Summary report submitted by the Investigating officer under "C" Class for disposal of the criminal case needs a detailed order to be passed by the Magistrate or he can simply agree with the report or otherwise.

5. Primarily, a "C-class" case cancellation means the police believe the complaint was mistaken and there was/is insufficient evidence against the accused for trial as such no further legal action would be taken against the accused. If the complainant disagrees, he may challenge the decision subject to strong evidence. Further, a summary report submitted under the "C" class for disposal of a criminal case is a procedure under criminal jurisprudence. It signifies that the investigation has been completed, and the Investigating Officer (IO) has recommended a course of action, often involving a discharge or acquittal. However, a simple order agreeing with the IO's recommendation can suffice in many cases. This is particularly true when the Investigation report is clear, concise, and supported by sufficient evidence because ultimately, the Magistrate can decide whether a detailed order is required or otherwise; and if a prima facie case does not exist, the criminal case can be summarily dismissed based solely on police recommendations.

2025 M L D 1668

[Sindh]

Before Muhammad Jaffer Raza, J

Asim Iqbal---Appellant

Versus

Mateen Sadiq and another---Respondents

Miscellaneous Appeal No. 128 of 2024, decided on 30th April, 2025.

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

----Ss.5, 6, 7 & 15---Civil Procedure Code (V of 1908), O.VII, R.11---Companies Act (XIX of 2017), S.483---Penal Code (XLV of 1860), Ss.193 & 228---Suit for recovery of damages on account of defamation---Defence of 'absolute privilege', availability of---Rejection of plaint---Scope---Factual controversy---Recording of evidence, requirement of---Order of Trial court rejecting the plaint set aside as the matter required recording of evidence---The appellant filed a defamation suit against the respondents for allegedly issuing a defamatory letter to the Securities and Exchange Commission of Pakistan (SECP) which he claimed damaged his reputation---Trial court rejected the plaint under O.VII R.11 CPC on the ground that the impugned letter was issued in the respondents' official capacity and was protected under "absolute privilege" as per S.6 of the Defamation Ordinance, 2002 (the Ordinance, 2002) and S.483 of the Companies Act, 2017 (the Act 2017)---The appellant challenged this rejection in the present appeal contending that such determinations required evidence and could not be resolved at the preliminary stage---Two important points for consideration by the High Court were as to "i. Whether the defamatory letter qualified as a "judicial proceeding" within the meaning of S.483 of the Act, 2017? and; ii. Whether the defamatory letter was written by the respondents in their personal or official capacity?"---Held: Perusal of S.483 of the Act, 2017 revealed that whilst powers of the civil court had been vested in the Commission for the purposes outlined in subsection (1) of S.483 in respect of any "proceedings" or "enquiry", the same attained the status of a "judicial proceeding" only within the meaning and for the purposes of Ss.193 and 228 of the P.P.C.---The defamatory letter visibly did not fall in the said category and it could not be classified as part of a "judicial proceeding"---Therefore, reliance of the Trial court on the above noted provision, at least for the purposes of rejection of plaint, was unfounded and incorrect---With regards to the second question for determination by the High Court, same required evidence to be recorded---The appellant should have been given an opportunity to examine the respondents and put forward necessary questions to them to determine the capacity in which the defamatory letter was written---The conclusion by the Trial Court in reference to the said letter being written by the respondents in their "official positions" could not have been made prior to recording of evidence---Trial Court went over and above the permissible scope of O.VII R.11 C.P.C.---Perusal of the impugned order reflected that the Trial court had not distinguished between rejection of the plaint and dismissal of the suit---Matter was remanded back to the Trial Court with a direction to conclude the proceedings within six months---Order of rejection of plaint was set aside and present appeal was allowed, in circumstances.

Haji Abdul Karim v. M/s. Florida Builders (Pvt.) Ltd. PLD 2012 SC 247 rel.

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

----S.8---Suit for recovery of damages on account of defamation---Prerequisites---Notice of action, requirement of---Scope---The scheme under the Defamation Ordinance, 2002, being special law, is peculiar---Prior to institution of the suit the plaintiff is mandated to issue a notice under S.8 of the Ordinance, 2002 within the time stipulated in the said provision.

Muhammad Ali Lakhani for Appellant along with Farmanullah and the Appellant Asim Iqbal.

Ghazi Khan Khalil along with Ameer Nausherwan, Zeeshan Ahmed Kalhoro, Kumail Abbas and Aftab Ali for Respondents.

Ahmed Khan Khaskheli, A.A.G for the State.

Date of hearing: 25th April, 2025.

judgment

Muhammad Jaffer Raza, J.---The instant Miscellaneous Appeal has been filed under Section 15 of the Defamation Ordinance, 2002 ("Ordinance") impugning the order dated 29.07.2024 passed in Defamation Suit No.183/2023, whereby the plaint filed by the Appellant was rejected under Order VII Rule 11, C.P.C.

1. Succinctly stated, the Appellant filed Suit No.183/2023 against the Respondents for damages on account of defamation before the learned trial Court. Thereafter, the Respondents filed an application under Order VII Rule 11, C.P.C. and the same was allowed vide Impugned order dated 29.07.2024.

2. Learned counsel for the Appellant has argued that the Impugned order is beyond the permissible scope of Order VII Rule 11, C.P.C. as expounded by the Hon'ble Supreme Court in the case of Haji Abdul Karim v. M/s. Florida Builders (Pvt.) Ltd. Learned counsel has stated that the letter dated 29.04.2023 ("defamatory letter"), written and signed by the Respondents, was defamatory in nature, which gave rise to the cause of action against the Respondents. It is specified that in the instant judgment the term "defamatory letter" is used for the purposes of identifying the said letter only and is not a determination on whether the said letter was defamatory.

3. The learned counsel in compliance of the provisions of Section 8 of the Ordinance issued legal notice dated 22.05.2023 to the Respondents and thereafter preferred the above-mentioned suit. The learned counsel has stated that the application filed by the Respondents under Order VII Rule 11, C.P.C. was primarily filed on the ground that the defamatory letter, which is the subject matter of the above-mentioned suit, was written by the Respondents in their official capacity and therefore their employer should have impleaded as Defendant in the said suit. Learned counsel has argued that even if the above was a permissible defence under Section 5 of the Ordinance, even then a rejection of the plaint was not warranted under the permissible scope of the above noted provision.

4. Conversely learned counsel for the Respondents has argued that Sections 6 and 7 of the Ordinance are squarely applicable to the case at hand as the defamatory letter which is the subject matter of the above-mentioned suit is covered by "absolute privilege" as defined under Section 6 of the Ordinance. In the same vein the learned counsel has also placed reliance on Section 483 of the Companies Act, 2017 ("Act") and states that the alleged defamatory letter, written to the Securities and Exchange Commission of Pakistan ("SECP") qualifies as "judicial proceeding" and therefore can be classified as "absolute privilege". He has further argued that no evidence in respect of the said defence needs to be recorded and the plaint can be rejected without appreciating the contents of the written statement. Learned counsel has further contended that the ground of absolute or qualified privilege, being legal in nature, can be taken at any stage.

5. Further the learned counsel has argued that the defamatory letter does not give rise to cause of action against the present Respondents as the defamatory letter was issued under the instructions of their employer. Therefore, the Respondents could not be sued personally for their acts and omissions which were done in their "official capacity". Learned counsel has further advanced the said argument and averred that the application filed by the Appellant under Order I Rule 10, C.P.C. seeking impleading of the employer of the Respondents as party further buttresses his contention. Lastly, he has relied upon the case of M. Moosa v Mahomed and others.

6. In rebuttal, learned counsel for the Appellant has argued that Section 483 of the Act is specific to proceedings under Sections 193 and 228 of the Pakistan Penal Code, 1860 ("P.P.C.") and therefore is not attracted to present case. Learned counsel has argued that the defamatory letter was sent in reply to the letter issued by SECP dated 18.04.2023. It is argued that the notice to SECP was sent by the Appellant as counsel for his client and the Respondents used this as an opportunity to defame the Appellant and tarnish his reputation. Lastly, learned counsel has contended that if the Impugned order is set aside, he will during the course of evidence, cross-examine the Respondents vis-à-vis their above noted contentions.

7. I have heard the learned counsel and perused the record. The scheme under the Ordinance, being special law, is peculiar. Prior to institution of the suit the Plaintiff is mandated to issue a notice under Section 8 of the Ordinance within the time stipulated in the said provision. At this juncture it will be relevant to reproduce Section 8 of the Ordinance which reads as follows: -

"8. Notice of action. - No action lies unless the plaintiff has, within two months after the publication of the defamatory matter has come to his notice or knowledge, given to the defendant, fourteen days notice in writing of his intention to bring an action, specifying the defamatory matter complained of."

1. Further, the defences available to the Defendant in a suit under the Ordinance have been clearly defined in Sections 5, 6 and 7 of the Ordinance, which are reproduced below: -

"5. Defences.- In defamation proceedings a person has a defence if he shows that-

(a) he was not the author, editor, publisher or printer of the statement complained of;

(b) the matter commented on is fair and in the public interest and is an expression of opinion and not an assertion of fact and was published in good faith;

(c) it is based on truth and was made for public good;

(d) assent was given for the publication by the plaintiff;

(e) offer to tender a proper apology and publish the same was made by the defendant but was refused by the plaintiff;

(f) an offer to print or publish a contradiction or denial in the same manner and with the same prominence was made but was refused by the plaintiff;

(g) the matter complained of was privileged communication such as between lawyer and client or between persons having fiduciary relations; and

(h) the matter is covered by absolute or qualified privilege.

6. Absolute privilege. - Any publication of statement made in the Federal or Provincial legislatures, reports, papers, notes and proceedings ordered to be published by either House of the Parliament or by the Provincial Assemblies, or relating to judicial proceedings ordered to be published by the Court or any report, note or matter written or published by or under the authority of a Government, shall have the protection of absolute privilege.

Explanation. - In this section legislature includes a local legislature and Court includes any tribunal or body exercising the judicial powers.

7. Qualified privilege. - Any fair and accurate publication of parliamentary proceedings, or judicial proceedings which the public may attend and statements made to the proper authorities in order to procure the redress of public grievances shall have the protection of qualified privilege."

1. At this juncture it will be expedient to bifurcate the grounds taken by the learned counsel for the Respondent for rejection of plaint and frame points of determination accordingly. The following points of determination are framed for effective adjudication: -

i. Whether the defamatory letter qualifies as a "judicial proceeding" within the meaning of Section 483 of the Act?

ii. Whether the defamatory letter was written by the Respondents in their personal or official capacity?

POINT NO.1

1. Prior to adjudicating this question, it will be germane to reproduce Section 483 of the Act. The same reads as follows: -

483. Powers of the Commission in relation to enquiries and proceedings.-(1) The Commission, an authorised officer or the registrar, as the case may be, shall, for the purposes of a proceeding or enquiry in exercise of its or his powers and discharge of functions, have the same powers as are vested in a Court under the Code of Civil Procedure, 1908 (Act V of 1908), while trying a suit, in respect of the following matters, namely-

(a) summoning and enforcing the attendance of any witness and examining him on oath or affirmation;

(b) compelling the discovery or production of any document or other material object;

(c) receiving evidence on affidavit; and

(d) issuing commissions for the examination of witnesses and documents.

(2) Any proceeding before the Commission, an authorised officer or registrar, as the case may be, shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Pakistan Penal Code, 1860 (Act XLV of 1860), and the Commission, an authorised officer or registrar shall be deemed to be a civil court for the purposes of section 195 and Chapter XXXV of the Code of Criminal Procedure, 1898 (Act V of 1898). (Emphasis added)

1. Bare perusal of the above reproduced section reveals that whilst powers of the civil court have been vested in the commission for the purposes outlined in subsection (1) of Section 483 in respect of any "proceedings" or "enquiry", the same attain the status of a "judicial proceeding" only within the meaning and for the purposes of Sections 193 and 228 of the P.P.C. The defamatory letter visibly does not fall in the said category and in that respect, it is held that the said letter cannot be classified as part of a "judicial proceeding". Therefore, reliance of the learned trial court on the above noted provision, at least for the purposes of rejection of plaint, was unfounded and with respect, incorrect.

2. For the purposes of the present appeal it will be beneficial to discuss another ancillary aspect of what has already been held above. Even if the defamatory letter is held to be a part of a "judicial proceeding" the Impugned order is unclear as to whether the same attracts absolute or qualified privilege within the meaning ascribed to them under the Ordinance. I will leave it to a more opportune moment to adjudicate whether either privilege can be a ground for rejection of plaint. For the purposes of the instant judgment, the same is immaterial in light of what has already been held in paragraph No.12 above. Consequently, the reliance of the learned counsel for the Respondent on the judgement in the case of M. Moosa (supra) is misplaced.

POINT NO.2

2025 M L D 1680

[Sindh (Hyderabad Bench)]

Before Muhammad Hasan (Akber), J

Muhammad Anwar---Applicant

Versus

Superintendent of Police Complaint Cell District Hyderabad and 2 others---Respondents

Criminal Misc. Application No. S-787 of 2024, decided on 21st February, 2025.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 22-A & 22-B---Inherent powers of High Court under S. 561-A, Cr.P.C.---Scope---Powers of Ex-officio Justice of Peace---Application of the petitioner for the registration of FIR was turned down by Ex-officio Justice of Peace---Validity---Complainant-petitioner alleged that he entered into nikah with a widow lady/proposed accused No. 1 against dower amount of Rs. 50,000/- and he extended loan amount of Rs. 5,00,000/- to her relatives, the proposed accused Nos. 2 to 4, however, rukhsati was refused due to quarrel between the parties, and respondent No. 1 started demanding khula---Allegedly, complainant against harassment by the proposed accused persons lodged two complaints---Applicant further alleged that he was kidnapped by proposed accused who harassed and threatened him to pronounce talaq upon his wife, (proposed accused)---Applicant produced copy of an early hand written application filed by him to the DIG Police---Contents of said application dated 14.10.2024 clearly revealed that no allegation of any cognizable offence was alleged therein but the applicant imputed allegations of bad character against the proposed accused/wife of applicant and demanded to lodge FIR against her solely for recovery of the loan amount of Rs.5,00,000/- and dower amount of Rs. 50,000/----Surprisingly, that first application was not disclosed before the Ex-officio Justice of Peace---Apparently, in the first two applications, applicant demanded lodging of FIR without even alleging any offence, whereas this time he had alleged the purported incident---For seeking discretionary relief, a person who sought equity and justice from the Court had to firstly disclose all the relevant facts and the ground realities before the Court; and secondly the conduct of the person seeking justice from the Court was also to be looked into, as the applicant must come before the Court with clean hands and without suppressing material facts from the Court---Claim of money transaction with his in-laws by the applicant and repeated applications by him appeared to be motivated with malice to subjugate and pressurize the proposed accused persons who, as claimed by the applicant himself, were his wife and her relatives, the same being matrimonial and financial issues of civil nature---Contradictions between such repeated applications were also worth noticing---From the record, it appeared that no cognizable offence had been made out and neither any witnesses nor any proof of such incident was placed, whereas the earlier application was also concealed---Applicant had not approached the Court with clean hands, which was sine qua non for seeking discretionary---Purpose of filing consecutive complaints under S.22-A & B, Cr.P.C., was to impress upon his wife and in-laws---Neither any cognizable offence was made out from the complaint nor any infirmity in the order passed by the Ex-officio Justice of Peace could be found---Application was dismissed, in circumstances.

Syed Qamber Ali Shah v. Province of Sindh and others 2024 SCMR 1123; Saeed Ahmad and others v. Naseer Ahmad and others PLD 2000 Lahore 208; Muhammad Aslam v. Additional Sessions Judge and others 2004 PCr.LJ 1214; Khizer Hayat v. Inspector General of Police (Punjab), Lahore PLD 2005 Lah. 470; Munawar Alam Khan v. Qurban Ali Malano 2024 SCMR 985; Jamal Khan v. Secretary Home Department 2021 SCMR 468; Rai Ashraf and others v. Muhammad Saleem Bhatti and others PLD 2010 SC 691 and Haider Ali v. State 2015 SCMR 1724 rel.

Applicant in person.

Irfan Ali Talpur, Assistant Prosecutor General, Sindh for Respondents.

Date of hearing: 30th January, 2025.

Order

Muhammad Hasan (Akber), J.---Through the instant Criminal Miscellaneous Application under section 561-A, Cr.P.C., the applicant has impugned the order dated 12-11-2024 passed by learned 7th Additional Sessions Judge, Hyderabad (Ex-officio Justice of Peace), thereby dismissing the application under section 22-A and B(vi)(i) of the Criminal Procedure Code (Cr.P.C) for registration of First Information Report (FIR) under section 154, Cr.P.C..

1. The Applicant is present and on his request, he was allowed to plead in person. He contended that through the impugned order, gross illegality and failure to exercise the powers vested in Justice of Peace, has occurred. Applicant states that he entered into nikah with a widow lady/the proposed accused No.1 against dower amount of Rs.50,000/- and he also extended loan amount of Rs.500,000/- to her relatives, the proposed accused Nos. 2 to 4.

2. However rukhsati was refused due to quarrel between the parties, and proposed accused No.1 started demanding khula. He further alleges that against harassment by the proposed accused persons, he lodged a complaint dated 23-09-2024 and 28-10-2024. He further alleges that on 27-10-2024 at 11 pm, he was kidnapped by proposed accused No.2 along with other proposed accused who harassed and threatened him to pronounce talaq upon proposed accused No.1, however upon his raising hue and cry, he was released.

3. Learned A.P.G. supported the impugned Order since neither any witnesses were available nor is there any evidence of the alleged incident. He further contended that as admitted by the applicant himself, there is relationship of husband and wife as also a money transaction between the parties, hence it is a civil and matrimonial dispute which the applicant is malafidely attempting to convert into criminal proceedings as a pressure tactic. It was lastly argued that the applicant has attempted to abuse the process of Court and has not approached the Court with clean hands.

4. Heard the Applicant-in-person and learned A.P.G. and perused the record with his assistance.

5. There is no cavil with the proposition that the provisions of section 154, Cr.P.C. are quite explicit and the officer in charge of the relevant Police Station is under a statutory obligation to register FIR whenever information disclosing commission of a cognizable offence is provided to him, as held in the case of 'Syed Qamber Ali Shah v. Province of Sindh and others' (2024 SCMR 1123). It is also settled that the officer in-charge of a police station or for an ex-officio Justice of the Peace are not obliged to afford an opportunity of hearing to the accused party, before registration of a criminal case or before issuing a direction in that regard. Reference in this regard can be made to the cases of 'Saeed Ahmad and others v. Naseer Ahmad and others' (PLD 2000 Lahore 208 (DB)) and 'Muhammad Aslam v. Additional Sessions Judge and others" (2004 PCr.LJ 1214).

6. However the provisions of section 22-A(6), Cr.P.C. do not make it obligatory for an ex-officio Justice of the Peace to necessarily or mechanically issue a direction regarding registration of a criminal case, whenever a complaint is filed before him in that regard. The use of the word "may" in section 22-A(6), Cr.P.C. clearly shows that the jurisdiction of an ex-officio Justice of the Peace in that regard is discretionary in nature, and understandably so, because unfortunately, the machinery of criminal law with its coercive process is increasingly being misused by motivated persons for achieving self-serving objectives. Thus, there is a pressing need on the part of the ex-officio Justices of the Peace to exercise caution and restraint before issuing a direction regarding registration of a criminal case. It is for this reason that in some cases, comments are also called from the officer in charge of the relevant Police Station in order to help pierce the veil, which may have been created due to economizing with the truth by the complainant. In an appropriate case, depending upon the circumstances thereof, an ex-officio Justice of the Peace may therefore, rightly refuse to issue a direction regarding registration of a criminal case and may dismiss the complaint under section 22-A(6), Cr.P.C., reminding the complaining person of his alternate statutory remedies under sections 156(3) and 190, Cr.P.C. Such was the ratio settled by a three member bench of the Lahore High Court in the case of 'Khizer Hayat v. Inspector-General of Police (Punjab), Lahore' (PLD 2005 Lahore 470).

7. While dealing with applications under sections 22-A and 22-B Cr.P.C., it has been held as the duty of the Court to take care of the possible misuse of the process and such applications should not be lightly entertained and decided in a mechanical manner for issuing direction to the police to lodge an FIR, conduct investigation in the matter and prosecute the accused. It has also been held that serious notice should be taken of frivolous, false or vexatious complaints, and where applicable, cases should be registered under sections 182 and 211 of the Pakistan Penal Code, 1860. Reliance is placed on the case of 'Munawar Alam Khan v. Qurban Ali Malano' (2024 SCMR 985) where such guidelines are worded in the following terms:

"4. Having heard the petitioner and scanned the material available on the record, we observe that there are many precedents regarding misuse of provisions of Sections 22-A and 22-B, Cr.P.C. and it is the prime duty of the Court that such misuse be taken care of and application filed should not be lightly entertained and decided in a mechanical manner for issuing direction to the police to lodge an FIR, conduct investigation in the matter and prosecute the accused…"

1. Likewise in the case of 'Jamal Khan v. Secretary Home Department' (2021 SCMR 468) refusal to direct police to lodge FIR in a dispute of a civil nature between the parties pertaining to alleged forgery of thumb impression on an arbitration agreement was upheld by the Supreme Court.

2. In another case, prayer for registration of FIR was refused on the ground inter alia that other remedy of criminal complaint was available with the complainant (1975 SCMR 149), whereas in the case of 'Rai Ashraf and others v. Muhammad Saleem Bhatti and others' (PLD 2010 SC 691) mala fide motives and ulterior intentions of the complainant were also probed by the Supreme Court in a complaint under sections 22-A and 22-B and based whereon, registration of FIR was refused.

3. While taking notice of the trend of frivolous complaints and misuse of sections 22-A and 22-B Cr.P.C., a three Member Bench of the apex Court in the case of 'Haider Ali v. State' (2015 SCMR 1724) at paragraph 9 (ii) of the Judgment, has also recommended action against lodging of false, frivolous and vexatious complaints in the following terms:

"(ii) Serious notice should be taken of frivolous, false or vexatious complaints and where applicable cases should be registered under sections 182 and 211 of the Pakistan Penal Code, 1860."

2025 M L D 1702

[Sindh (Hyderabad Bench)]

Before Riazat Ali Sahar, J

Kashif alias Tomi---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-177 of 2025, decided on 14th April, 2025.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302(b), 324 & 337-H(2)---Qatl-i-amd, attempt to commit qatl-i-amd, rash and negligent act---Bail, dismissal of---Allegations against the accused-applicant were that he along with his co-accused committed murder of the father of complainant and also caused firearm injuries to the friend of deceased---Record revealed that the applicant had been specifically nominated in the FIR with a defined and active role in the commission of the offence---Complainant and eye-witnesses had consistently alleged that the applicant, along with co-accused, being armed with a firearm, launched a deliberate and premeditated assault on the deceased, resulting in his death and caused firearm injuries to his friend---Statements recorded under S.161, Cr.P.C., were in line with the version advanced in the FIR and stood corroborated by the medical evidence---Post-mortem report confirmed that the deceased sustained multiple firearm injuries, which were sufficient to cause death in the ordinary course of nature---Similarly, the Medico-Legal Certificate of the injured witness supported the allegation of gunshot wounds---Ocular and medical evidence were consistent and mutually reinforcing, leaving no apparent contradiction---As for the delay of approximately 16 hours in lodging the FIR, the explanation offered that the complainant and his family were initially occupied with the funeral rites of the deceased was both plausible and in consonance with normal human behaviour under such distressing circumstances---Undoubtedly, the offence with which the applicant was charged fell under Ss.302 and 324, P.P.C, which was punishable with death or imprisonment for life, however, when an offence falls within the prohibitory clause of S.497, Cr.P.C., bail could not be granted as a rule but only as an exception under extraordinary circumstances---However, no such exceptional circumstances had been demonstrated by the applicant to justify the grant of bail---In the instant case, the existence of motive was another strong factor against the applicant as the dispute occurred over the ownership record (Khata) of agricultural land, which created antagonism between the accused and the complainant's father and ultimately that dispute resulted to the tragic incident---When a clear motive was present and linked to the commission of the offence, it served as an additional incriminating factor, which reduced the chances of false implication---Specific allegation and the settled position of law regarding shared criminal intention and direct action, the applicant could not absolve himself merely on the plea of indeterminate bullet trajectory---Accordingly, the applicant had failed to make out a case for the concession of bail---Bail application was dismissed, in circumstances.

Nooruddin and another v. The State 2005 MLD 1267; Kouro and another v. The State 2004 YLR 2434; Mukaram v. The State and another 2020 SCMR 956; Sikandar Hayat v. The State and another 2022 SCMR 198; Itbar Muhammad v. The State and others 2024 SCMR 1576; Naeem Sajid and others v. The State through Prosecutor General Punjab and another 2025 SCMR 129; Allah Dewayo Shahani v. The State through Prosecutor General, Sindh 2023 SCMR 1724; Bilal Khan v. The State through P.G Punjab and another 2020 SCMR 937; Waleed Arfaqat v. The State and another 2021 MLD 1226 and Imtiaz v. Azam Khan and others 2021 SCMR 111 ref.

Bilal Khan v. The State 2020 SCMR 937; Sheqab Muhammad v. The State and others 2020 SCMR 1486; Itbar Muhammad v. The State 2024 SCMR 1576 and Allah Dewayo Shabani v. The State 2023 SCMR 1724 rel.

Ayaz Ali Gopang for Applicant.

Sameeullah Rind for the Complainant.

Siraj Ahmed Bijarani, Assistant Prosecutor General, Sindh for the State.

Date of hearing: 24th March, 2025.

Order

Riazat Ali Sahar, J.---Through the captioned bail application under Section 497, Cr.P.C, the applicant is seeking his admission on post arrest bail in Crime No.83 of 2023 registered at P.S Khadhar offences punishable under Sections 302, 324, 337-H(ii) P.P.C..

1. The complainant, Tarique Aziz, lodged the present FIR, stating that his father, Muhammad Siddique Zardari, had purchased 06-00 acres of agricultural land from Ghulam Irtaza alias Shahrukh Unar, for which the full sale consideration had been paid. However, a dispute later arose between Ghulam Irtaza and the complainant's father regarding the khata (ownership record) of the said land, which caused Ghulam Irtaza to become hostile towards him. On the day of the incident, the complainant, along with his father, Muhammad Siddique Zardari, and other relatives, Asghar Ali and Wahid Ali, was present at their land near Village Umar Bodleja, engaged in water irrigation. Meanwhile, the complainant's father was conversing with his friend, Muhammad Ismail, a resident of Village Ghulam Rasool Shah Colony, Nawabshah. At about 07:30 a.m., four armed accused persons namely Ghulam Irtaza alias Shahrukh Unar armed with a rifle, Rehman armed with a repeater, Kashif alias Tomi armed with a repeater and an unknown person armed with a repeater appeared at the scene. Upon arrival, the accused raised Hakkals (shouted loudly) and, with the intent to commit murder, opened indiscriminate fire on the complainant's father, Muhammad Siddique Zardari, and his friend, Muhammad Ismail. As a result, both sustained firearm injuries and collapsed to the ground while crying. The complainant and his relatives pleaded for mercy in the name of Allah, as such, the accused fled the scene on their motorcycles while firing in the air. The complainant's father, Muhammad Siddique Zardari, sustained gunshot wounds on his abdomen and right thigh, causing severe bleeding, whereas Muhammad Ismail also suffered a firearm injury on his abdomen, with blood plentifully oozing from his wound. Realizing the gravity of the situation, the complainant arranged transport and immediately rushed both injured persons to the hospital. However, on the way, his father, Muhammad Siddique Zardari, succumbed to his injuries. The complainant informed the police, who issued a letter for medical treatment, after which the injured Muhammad Ismail was shifted to PMCH Nawabshah for further treatment. Meanwhile, the body of the deceased was taken to Taluka Hospital Sakrand, where the police of P.S Khadhar conducted the postmortem examination. Upon completion, the body of the deceased was handed over to the complainant for burial. After the funeral ceremony, the complainant proceeded to P.S Khadhar and lodged the present FIR against the accused.

2. Learned counsel for the applicant has contended that the applicant has been falsely implicated in this case by the complainant with mala fide intention and ulterior motives; that the FIR has been delayed by more than 16 hours, and no plausible explanation has been furnished for such a delay, raising serious doubts about the prosecution's version of events; that no motive has been assigned to the applicant for the alleged murder of the deceased, further weakening the case against him; that the complainant has managed a false and fictitious story in connivance with the witnesses who were not actual eye-witnesses to the incident; that neither the complainant was present at the place of occurrence nor is he an eye-witness to the incident, rendering his version of events questionable; that one Asghar Ali informed the police on 10.11.2023 at 1000 hours that his cousin Muhammad Siddique had expired due to receiving firearm injuries and on his information, the police reached the Taluka Hospital Sakrand; that the FIR does not mention the presence of the complainant and his witnesses at the scene, thereby creating doubts regarding the occurrence of the alleged incident as narrated; that the applicant, along with three co-accused, is alleged to have made direct firing upon the deceased and the injured prosecution witness, however, it remains unknown which specific fire of the four accused hit the deceased and the injured PW; therefore, the role assigned to the applicant for firing upon the deceased is doubtful; that all prosecution witnesses are close relatives of the complainant, further raising concerns regarding their impartiality and credibility; that the case has already been challaned and the applicant is no longer required for further investigation; that keeping the applicant in jail for an indefinite period would not serve any purpose for the prosecution. In support of his submissions, learned counsel has relied upon the cases of Nooruddin and another v. The State (2005 MLD 1267), Kouro and another v. The State (2004 YLR 2434), Mukaram v. The State and another (2020 SCMR 956) and Sikandar Hayat v. The State and another (2022 SCMR 198).

3. Learned Counsel for the complainant has opposed the bail application, contending that the applicant, along with co-accused, is specifically nominated in the FIR with a clear role in causing injuries to the complainant's father and injured prosecution witness and as a result of these injuries, the father of the complainant succumbed to injuries and PW Muhammad Ismail sustained injuries; that the FIR was lodged promptly after the incident and any delay in its registration was due to the funeral ceremony of the deceased; that the statements of the prosecution witnesses recorded under Section 161, Cr.P.C., as well as the medical evidence, fully supported the ocular account narrated in the FIR; that the offence committed by the applicant is of a heinous nature, punishable by death or life imprisonment and falls within the prohibitory clause of Section 497, Cr.P.C. He further contended that keeping in view the heinousness of the offence and the strong prosecution evidence, the applicant is not entitled to the concession of bail. In support of his arguments, the learned counsel has relied upon the cases of Itbar Muhammad v. The State and others (2024 SCMR 1576), Naeem Sajid and others v. The State through Prosecutor General Punjab and another (2025 SCMR 129), Allah Dewayo Shahani v. The State through Prosecutor General, Sindh (2023 SCMR 1724), Bilal Khan v. The State through P.G Punjab and another (2020 SCMR 937), Waleed Arfaqat v. The State and another (2021 MLD 1226) and Imtiaz v. Azam Khan and others (2021 SCMR 111).

4. Learned DPG has adopted the arguments advanced by the learned counsel for the complainant and further contends that the applicant is directly nominated in the FIR with a specific role in the commission of the offence, which resulted in the death of the complainant's father and injuries to the prosecution witness. He further contended that the statements of prosecution witnesses recorded under Section 161, Cr.P.C. corroborate the version narrated in the FIR and the medical evidence further supports the prosecution's case and that grant the bail to the applicant at this stage may hamper the trial and pose a serious threat to the prosecution witnesses; hence, the applicant is not entitled to any concession of bail, as the evidence on record, prima facie, connects him with the commission of the offence. He has prayed for dismissal of bail application.

5. I have heard learned counsel for the applicant, learned counsel for the complainant as well as learned D.P.G. Sindh representing the State and perused the entire material available on record including the cases cited at the bar.

6. A meticulous examination of the record reveals that the applicant, Kashif alias Tomi, has been specifically nominated in the FIR with a defined and active role in the commission of the offence. The complainant and eye-witnesses have consistently alleged that the applicant, along with co-accused, being armed with a firearm, launched a deliberate and premeditated assault on the deceased, Muhammad Siddique Zardari, resulting in his death, and caused firearm injuries to PW Muhammad Ismail. The statements recorded under Section 161, Cr.P.C. are in line with the version advanced in the FIR and stand corroborated by the medical evidence. The post-mortem report confirms that the deceased sustained multiple firearm injuries, which were sufficient to cause death in the ordinary course of nature. Similarly, the medico-legal certificate of the injured witness supports the allegation of gunshot wounds. The ocular and medical evidence are consistent and mutually reinforcing, leaving no apparent contradiction. As for the delay of approximately 16 hours in lodging the FIR, the explanation offered that the complainant and his family were initially occupied with the funeral rites of the deceased is both plausible and in consonance with normal human behaviour under such distressing circumstances. The Hon'ble Supreme Court of Pakistan has repeatedly held that minor delays in lodging the FIR in cases involving grave offences, particularly homicide, do not cast serious doubt on the prosecution's case, especially where the delay has been reasonably explained and the ocular account is corroborated by medical evidence. Reference in this regard may be made to Bilal Khan v. The State (2020 SCMR 937), wherein it was held that delay in FIR registration per se does not dilute the credibility of the prosecution's case when supported by reliable evidence. In light of the foregoing, the applicant does not merit the concession of bail at this stage.

7. Undoubtedly, the offence with which the applicant is charged falls under Sections 302 and 324, P.P.C., which is punishable with death or life imprisonment; however, it is well-settled principles of law that when an offence falls within the prohibitory clause of Section 497, Cr.P.C., bail cannot be granted as a rule but only as an exception under extraordinary circumstances. However, no such exceptional circumstances have been demonstrated by the applicant to justify the grant of bail.

8. In the instant case, the existence of motive is another strong factor against the applicant as the disputed occurred over the ownership record (Khata) of agricultural land, which created antagonism between the accused and the complainant's father and ultimately this dispute resulted to this tragic incident. It is worthwhile to note that in such circumstances, the Courts have repeatedly held that when a clear motive is present and linked to the commission of the offence, it serves as an additional incriminating factor, which reduces the chances of false implication.

9. The defence has sought to argue that the identity of the assailant whose gunfire struck the deceased and the injured prosecution witness remains unascertained, thereby attempting to introduce uncertainty with respect to the applicant's individual role. However, this line of argument is devoid of legal merit in light of the settled doctrine of constructive liability enshrined under Section 34 of the Pakistan Penal Code. The record clearly reflects that all four accused persons, including the applicant, acted in concert, arrived together at the scene of the occurrence, and indiscriminately opened fire upon the victims with lethal intent. In such circumstances, where the assailants shared a common intention to commit a homicidal assault, it is not legally requisite to establish whose bullet specifically caused the fatal or injurious wounds. The principle of joint liability imputes equal responsibility upon all participants in the commission of the crime. Moreover, in the present case, the prosecution has attributed a specific role to the applicant in opening fire upon the victims, thereby directly implicating him in the offensive act. It is also a settled principle of law that once a person voluntarily discharges a firearm towards a human target and that target sustains injury or death, intention or knowledge as contemplated under Section 324 or 302, P.P.C. is sufficiently manifested. In this regard, reference may be made to the judgment of the Honourable Supreme Court of Pakistan in Sheqab Muhammad v. The State and others (2020 SCMR 1486), wherein it was held:

"Once the trigger is pressed and the victim is effectively targeted, 'intention or knowledge' as contemplated by Section 324, P.P.C. is manifested; the course of a bullet is not controlled or steered by the assailant's choice nor can he claim any premium for a poor marksmanship."

The ratio of the above decision is fully attracted to the facts of the present case, where the applicant is alleged to have been an active participant in a coordinated assault using firearms. Given the specific allegation and the settled position of law regarding shared criminal intention and direct action, the applicant cannot absolve himself merely on the plea of indeterminate bullet trajectory. Accordingly, the applicant has failed to make out a case for the concession of bail, which, in view of the above discussion and precedent, is liable to be declined.

1. In the case of Itbar Muhammad v. The State (2024 SCMR 1576), the Honourable Supreme Court has held that:

"7. On perusal of record it reflects that this is a case in which one person has lost his life and one person has sustained injuries at the hands of accused persons. Furthermore, the petitioner/accused along with another accused was nominated in the FIR and specific role of firing at the deceased and injured person was attributed to petitioner specifically. P.Ws in their statements have supported the version of the complainant given by him in the FIR. The medical evidence also corroborates the ocular account."

1. Furthermore, reliance may be placed on the judgment of the Honourable Supreme Court in Allah Dewayo Shahani v. The State (2023 SCMR 1724), wherein it was unequivocally held that bail ought not to be granted in cases involving the offence of murder when the accused is nominated with a specific role, particularly where the ocular account is consistent and corroborated by medical evidence. In the said precedent, six accused persons were named with assigned roles in a coordinated assault resulting in homicide, and the Court refused bail, finding that the specific attribution of roles coupled with supporting evidence rendered the case one of deeper probative value requiring trial. The Supreme Court observed that in such serious offences involving direct and active participation, the question of granting bail does not arise merely on the basis of procedural or evidentiary doubts, unless material contradictions are apparent at a preliminary stage. Applying the same reasoning to the present case, where the applicant is similarly nominated with a specific role of having used a firearm resulting in the death of one person and injuries to another, and where the ocular and medical evidence are in harmony, the case is squarely covered by the ratio of Allah Dewayo Shahani (supra). In such circumstances, the grant of bail would be premature and against the settled principles of criminal jurisprudence, particularly in cases involving offences under Section 302, P.P.C. read with Section 34, P.P.C..

2025 M L D 1713

[Sindh (Hyderabad Bench))]

Before Abdul Hamid Bhurgri, J

Balach Khan---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-1347 of 2024, decided on 7th February, 2025.

Criminal Procedure Code (V of 1898) ---

----Ss. 497 & 161---Penal Code ( XLV of 1860 ), Ss. 302, 324, 506(ii) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, criminal intimidation, common intention---Post-arrest bail, grant of---Nomination through supplementary statement---Rule of consistency---Allegation against the petitioner /accused was that he allegedly provided refuge within his residence to the principal accused who was purported to have indiscriminately fired upon three persons, resulting in their demise--Validity---Admittedly, it was the principal accused who directly opened fire on three individuals, culminating in their fatal injuries---First Information Report delineated the incident as an offshoot of a familial and matrimonial dispute---Significantly, the petitioner's name was not originally recorded in the FIR but surfaced subsequently through an additional statement by the complainant---Such statements, made under S.161, Cr.P.C, inherently warranted further judicial scrutiny, as envisaged under subsection (2) of S.497, Cr.P.C.---Petitioner's case was indistinguishable from that of co-accused who was granted bail by the High Court ---Consequently, the petitioner, by the rule of consistency, was equally entitled to bail---Petitioner had been behind bars since his arrest and with the investigation having concluded, his continued detention served no tangible purpose---Given the indeterminate timeframe for the trial's completion, prolonging the applicant's incarceration would be unjustified---Petitioner / accused was admitted to bail, in circumstances.

Nisar Ahmed S. Chandio for Applicant.

Ms. Rameshan Oad, Assistant P.G. for the State.

Date of hearing: 7th February, 2025.

Order

Abdul Hamid Bhurgri, J.---The applicant, having been unsuccessful in securing bail from the Trial Court in Crime No. 223 of 2024, registered at P.S A-Section, Nawabshah, under Sections 302, 324, 506/2, 34 P.P.C., now petitions this Court for his release on bail.

1. The accusation against the applicant is that he allegedly provided refuge within his residence to co-accused Khalid Hussain, who is purported to have indiscriminately fired upon Wahid Bux, Mst. Hamida, and Mst. Rasheeda, resulting in their demise. The FIR attributes the incident to a domestic and matrimonial conflict.

2. The learned counsel for the applicant contends that his client is entirely innocent and has been entangled in this case maliciously by the complainant. It is emphasized that the allegations against the applicant remain vague, centering merely on his alleged act of sheltering co-accused Khalid Hussain, who is the primary perpetrator of the offense. The applicant's name was conspicuously absent from the FIR but was later implicated through a supplementary statement made by the complainant. Furthermore, co-accused Doda Khan, whose involvement is identical to that of the applicant, has already been granted bail by this Court. In light of the principle of parity, the applicant asserts his entitlement to the same relief, arguing that his continued incarceration serves no investigative necessity.

3. The learned Additional Prosecutor General (APG), appearing on behalf of the State, submits that although the applicant's name does not feature in the original FIR, he was later implicated following an additional statement by the complainant. However, the APG does not object to bail, acknowledging that a co-accused with an analogous role has already been granted the same relief.

4. Despite the issuance of notice, the complainant has failed to appear.

5. Having heard the learned counsel for the applicant and the learned APG, and after thoroughly scrutinizing the record, the Court arrives at the following determination.

2025 M L D 1756

[Sindh]

Before Salahuddin Panhwar, J

Shahzia Bibi---Petitioner

Versus

The Province of Sindh through Prosecutor General Sindh and another---Respondents

Constitution Petition No. S-654 of 2023, decided on 3rd August, 2023.

Pakistan Prisons Rules, 1978---

----R. 148---Transfer of prisoner---Conviction and sentence awarded to petitioner's husband in a criminal trial by the Court of Sessions Judge East, Islamabad---Pendency of Criminal Appeal against conviction and sentence before Islamabad High Court---Transfer of custody of petitioner's husband to Karachi for facing trial in two criminal cases registered at Karachi---Petitioner sought the retention of her husband's custody of petitioner's husband at Landhi Jail, Karachi, as he was facing trials in Karachi---Contention of the petitioner was that transferring her husband's custody out of Karachi would cause her and her children significant inconvenience---Validity---Respondents, including the Deputy Prosecutor General and the Advocate General, had no objection to retaining the custody of petitioner's husband at Karachi---Rule 148 of the Pakistan Prisons Rules, 1978 (Rules) permits the transfer of a prisoner to a location closer to their home if they are convicted outside their province, which supported the retention of the petitioner's husband custody at Landhi Prison, Karachi for the reason that he was facing two trials in Karachi and his appeal before the Islamabad High Court did not necessitate his detention outside Karachi---Petitioner's submission included evidence of her residence and the respondents showed no objection to the retention request---High Court disposed of the petition with the observation that the prisoner's custody should be retained in Karachi as his transfer to any prison outside Karachi, such as Adyala Jail in Rawalpindi, would not serve any legal or practical purpose---Petition was disposed of accordingly.

Syed Kamran Shah for Petitioner.

K.A. Wasvani, Assistant A.G. Sindh, Muhammad Anwar, DPP, Tariq Qureshi, Addl. Secretary (Prison) Home Department Government of Sindh for Respondents.

Date of hearing: 24th July, 2023.

Order

Salahuddin Panhwar, J.---The relevant facts for disposal of instant petition are that the husband of the petitioner was convicted vide Judgment dated 18.10.2022 passed by the Court of Sessions Judge East, Islamabad in a case arising out of Crime No.239/2016 registered at P.S. Shalimar, Islamabad, against that judgment a Criminal Appeal No. 383/2022 was filed by the husband of petitioner, which is still pending adjudication before the Islamabad High Court, that there are also two other FIRs bearing Crime No. 258/2021, registered at PS Bahadurabad and Crime No. 523/2021, registered at PS Darakshan, Karachi, which are pending before concerned Courts at Karachi; that custody of the husband of the petitioner was transferred to Karachi under the Court's Order and presently he is confined in the Landhi Jail, Karachi, that the petitioner is permanent resident of Karachi and her sons and daughter are studying in Karachi, that the respondents are threatening the petitioner and causing harassment to the petitioner for re-transter of the custody of her husband, that the petitioner being lady is suffering due to incarceration of her husband who is the only male member. The petitioner and her children are living in Karachi and in case the custody is re-transferred to the prison out of Karachi, it would cause great inconvenience, that the custody of her husband may be ordered to be retained at Landhi Prison as he is required in two criminal cases which are being tried at Karachi and his custody is not required at Islamabad as only his appeal is pending at Islamabad High Court.

1. At the outset, learned DPP while referring Rule 148 of Transter of Prisoners contended that since petitioner's husband has been convicted by learned District and Sessions Judge Islamabad, presently he is facing trial in two criminal cases at Karachi, therefore, as per Rule his custody is to be retained near to his home to serve the sentence, hence, he has no objection if the custody of the husband is retained at Karachi.

2. In similar voice, learned AAG has also extended his no objection, whereas, Additional Secretary (Prison), Home Department present, filed comments. Being relevant, reply of paragraphs 2 and 4 are reproduced herewith:-

"2. It is a fact that two FIRs bearing No. 258/2021 P.S. Bahadurabad and FIR No. 523/2021 P.S. Darakhshan, Karachi have been lodged against lifer convicted Raja Arshad Mehmood.

According to the jail roll of Superintendent, District Prison and C.F. Malir Karachi the last date of hearing was 05.07.2023.

1. In the instant matter, office of the Prosecutor General Sindh has advised the Home Department that "It is advised to not take action as the matter is subjudice otherwise it may cause adverse inference" vide letter No.PGS/Pros:/61/20101/3281 dated 08.11.2022. However, the matter of transfer may be decided by the Honourable Sessions Court East Karachi. Moreover, the application of petitioner has been forwarded to Chief Commissioner, Islamabad Territory Islamabad for comments/NOC vide letter No.HD/SOPRS-II/1-6/2021 dated 15.11.2022. Subsequently reminder has also been issued on 30.05.2023, but the reply of the same is still awaited."

(Underline is supplied for emphasis).

1. Since petitioner's claim is that she is permanently residing in Karachi along with her children who are getting education. In support of her claim, she has submitted electricity bills as well as fee vouchers of her son Ehtesham Arshad studying in Jinnah Sindh Medical University Karachi. Besides, petitioner's counsel contended that petitioner's husband was tried in Islamabad and accordingly, he was convicted; his appeal is pending before Islamabad High Court wherein his custody is not required. However, he further contended that the husband of the petitioner is not required to face trial out of Sindh Province. He further submitted that petitioner's husband is also facing trial of two cases in Karachi. Petitioner has apprehension that her husband will be transferred to Adyala Jail Rawalpindi.

2. At this juncture, it would be conducive to refer Rule 148 of the Pakistan Prisons Rules, 1978 in respect of the Transfer of Prisoners as relied by the learned APG.

Rule 148 of Transfer of Prisoners

2025 M L D 1830

[Sindh (Hyderabad Bench)]

Before Abdul Hamid Bhurgri, J

Dr. Saddam Zia and 2 others---Applicants

Versus

The state and 2 others---Respondents

Criminal Misc. Application No. S-886 of 2024, decided on 26th February, 2025.

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

----Ss. 154, 173 & 561-A---Penal Code (XLV of 1860), Ss. 302(b) & 34---Inherent powers of High Court---Quashing of order---Judicial Magistrate, after taking cognizance of the case, issued directions that the accused/applicants be sent to trial in a case registered under Ss.302 & 34, P.P.C---Validity---Accused/applicants were charged for committing murder of the nephew of complainant---Accused/applicants alleged that the deceased committed suicide---Through present application, the applicants had challenged the order of the Judicial Magistrate, wherein cognizance was taken under Ss.302 & 34, P.P.C---Offence under S.302 P.P.C fell exclusively with the jurisdiction of the Court of Sessions, the matter was accordingly referred to the appropriate forum---Authority of a Judicial Magistrate to diverge from the Investigating Officer's conclusions was confined solely to instances where a report sought disposal of the case or eliminates a specific section of the charges---In such circumstances, the Judicial Magistrate, upon examining the evidence, may independently form an opinion, diverging from that of the Investigating Officer and take cognizance of the offence by accepting the challan or reinstating the omitted charges---Record showed that charge had been framed in the subject case by the Trial Court---Since, the charge had been framed by the Trial Court, it was only appropriate that the applicants sought redressal of their grievance from the said forum, in accordance with law---Any factual determination made by the High Court at this stage may inadvertently prejudice the case of either party---Applicants were at liberty to approach the Trial Court and avail any remedy permissible under the law---Criminal Miscellaneous Application was dismissed, in circumstances.

2006 PCr.LJ 518; 2016 PLD Sindh 300; 2006 MLD 663; 1994 SCMR 122 and 2002 SCMR 1076 ref.

Jalal and 2 others v. The State and another 1972 SCMR 516; Habib v. The State 1983 SCMR 370; Abdul Hafeez Junejo v. The State 2010 SBLR 306 and Amanat Ali v. 1st Civil Judge and J.M Daharki and others 2015 YLR 2312 rel.

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

----S. 561-A---Inherent power of the High Court---Observations of the Court made while deciding an application under S. 561-A, Cr.P.C---Such observations are tentative in nature and should not prejudice the case of either party at the trial.

Ghulam Mustafa Channa for Applicants.

Faqir Rehmatullah Hisbani for Respondent No. 3.

Ms. Sana Memon, APG for the State.

Date of hearing: 17th February, 2025.

Order

Abdul Hamid Bhurgri, J.---Through this Criminal Miscellaneous Application filed under Section 561-A Cr.P.C, the applicants have challenged the order dated 18.12.2024, passed by the learned Civil Judge and Judicial Magistrate-VI, Hyderabad. The impugned order was issued in response to the report submitted by the Investigating Officer under Section 173 Cr.P.C, whereby the learned Magistrate concurred with the Investigating Officer's findings and directed that the accused/applicants be sent to trial in Crime No.47 of 2024, registered under Sections 302 and 34 P.P.C at Police Station B-Section Latifabad, Hyderabad. Consequently, this Criminal Miscellaneous Application has been filed.

1. The brief facts of the case, as narrated in the FIR, are that the complainant is the uncle of Abdul Rehman (deceased). According to the FIR, Abdul Rehman was employed at the clinic of the applicant/accused Dr. Mehwish and had been residing at her residence for the past five years. On 16.03.2024, the complainant received a phone call from the applicant/accused Dr Saddam, informing him that Abdul Rehman had committed suicide and that his body was at Hilal-e-Ahmar Hospital. Upon receiving this information, the complainant, accompanied by his cousin Zulfiqar Ali and Abdul Malik, arrived at the hospital, where Dr Saddam stated that Abdul Rehman had taken his own life by hanging himself from a bathroom hanger at approximately 23:30 hours on 15.03.2024. By the time they arrived, the post-mortem examination had already been conducted. Upon inquiry as to why the post-mortem was performed before their arrival, Dr Saddam failed to provide a satisfactory response. Subsequently, the complainant approached the police station and lodged an FIR, alleging that the applicants/accused Dr Mehwish, Dr Naeem, and others had murdered his nephew Abdul Rehman, who had been residing and working at Dr Mehwish's clinic and residence.

2. The learned counsel for the applicants argued that the impugned order was issued without proper judicial application of mind and in a premeditated and mechanical manner, relying on erroneous assumptions. He contended that the deceased had been residing and working at the clinic of Dr Mehwish, who is a senior gynecologist of BPS-19, while co-accused Dr Naeem and Dr Saddam are also senior government-employed doctors. Given their professional standing, they could not have committed any offence. The post-mortem report explicitly indicated that the deceased had died by suicide, as no signs of violence were found on his body. Furthermore, a second post-mortem, conducted under the order of the learned Magistrate by a medical board, corroborated the findings of the initial post-mortem, confirming that the cause of death was compression of the neck by ligature, resulting in asphyxia. The report further stated that Abdul Rehman had used his vest band (nara) to hang himself in the bathroom. Given the deceased's young age, the counsel argued that had he been murdered, there would have been evident signs of struggle or physical violence, none of which were present on his body. Both post-mortem reports are available on record. He further asserted that the complainant had maliciously lodged a false FIR with the intent to harass and coerce the accused, who are respectable medical professionals, into providing financial compensation. He emphasized that this is a case of conflicting versions, and an individual's liberty, being a fundamental right, cannot be compromised merely on the basis of unsubstantiated allegations lacking evidentiary support. The learned trial Court, he contended, had failed to consider the absence of ocular, circumstantial, or medical evidence substantiating the alleged murder of the deceased. In conclusion, he prayed for justice. In support of his arguments he relied upon case laws reported in 2006 PCr.LJ 518 Karachi, PLD 2016 Sindh 300, 2006 MLD 663 Karachi, 1994 SCMR 122, 2002 SCMR 1076, Un-reported judgment of Hon'ble Supreme Court of Pakistan in Criminal Petition No.58-K of 2023, PLD 2020 Sindh 491, 2024 SCMR 1782 and 2018 YLR 1223 Peshawar.

3. Conversely, the learned counsel for respondent No.3 supported the impugned order, maintaining that the accused had committed the offence and subsequently fabricated a narrative of suicide to cover it up, warranting further investigation. He contended that the allegations of mala fide intent against the complainant were baseless and unsubstantiated. He questioned why the applicants had not informed the legal heirs of the deceased immediately after his demise and why the body had been hastily shifted to the hospital for post-mortem without their consent. These suspicious circumstances, he argued, implicated the accused in the offence, as an innocent person had lost his life. The learned trial Court, he submitted, had rightly accepted the report under Section 173 Cr.P.C and passed the impugned order. Learned counsel contended that the charge has been framed in the subject case by the learned trial Court. Therefore, he urged that the present Criminal Miscellaneous Application, being devoid of merit, should be dismissed. Additionally, the learned Assistant Prosecutor General (A.P.G) for the State endorsed the impugned order, adopting the arguments advanced by the learned counsel for respondent No.3.

4. I have carefully considered arguments put forward by the respective counsels of both parties and learned A.P.G.

5. Through this application, the applicant has challenged the order of the Magistrate-VI, Hyderabad dated 18.12.2024, wherein cognizance was taken under Sections 302 and 34 P.P.C. The offence under Section 302 P.P.C falls exclusively with the jurisdiction of the Court of Sessions, the matter was accordingly referred to the appropriate forum.

6. The legal principle is now firmly established that when an Investigating Officer, upon completing an inquiry, submits a positive report recommending that the accused be sent to trial, the Magistrate lacks the jurisdiction to disregard such a report by either disposing of the case or omitting a specific offence. Once the Investigating Officer, after collecting material evidence, concludes that a particular offence has been substantiated and merits judicial determination, it is not within the Magistrate's competence to set aside such findings, as doing so would require the scrutiny of witnesses. Consequently, it falls within the purview of the trial court-be it a Magistrate's or a Sessions Court-to assess the evidence during trial and determine whether a case has been established or whether sufficient material exists to justify the application of a particular statutory provision, proceeding accordingly in compliance with due process.

7. The authority of a Magistrate to diverge from the Investigating Officer's conclusions is confined solely to instances where a report seeks to dispose of the case or eliminate a specific section of the charges. In such circumstances, the Magistrate, upon examining the evidence, may independently form an opinion, diverging from that of the Investigating Officer, and take cognizance of the offence by accepting the challan or reinstating the omitted charges. The legal precedents set forth in Jalal and 2 others v. The State and another (1972 SCMR Page-516), Habib v. The State (1983 SCMR 370), Abdul Hafeez Junejo v. The State (SBLR 2010 Sindh 306), and Amanat Ali v. 1st Civil Judge and J.M Daharki and others (2015 YLR 2312) affirm that a Magistrate lacks the authority to dispose of a case that the Investigating Officer has recommended for trial following due investigation.

8. The investigation of a criminal case is an exclusive domain of the police. While judicial independence is a fundamental tenet of a democratic system, the autonomy of investigative bodies is equally crucial to the concept of rule of law. Undue interference in each other's domains undermines the doctrine of separation of powers and significantly hampers the administration of justice. This principle has been unequivocally affirmed by the Hon'ble Supreme Court in the case of Muhammad Hanif v. The State (2019 SCMR 2029).

2025 M L D 1906

[Sindh]

Before Muhammad Jaffer Raza, J

Iqbal Ahmed Siddiqui---Appellant

Versus

Khalid Maudod Siddiqui and another---Respondents

IInd Appeal No. 78 of 2023, decided on 6th May, 2025.

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

----Ss.8 & 54---Civil Procedure Code (V of 1908), S.100---Qanun-e-Shahadat (10 of 1984), Arts.117 & 119---Suit for possession, recovery of mesne profit and permanent injunction---Benami transaction, ingredients of---Burden of proof---Second appeal, scope of---Interference in concurrent findings of courts below---Present second appeal was filed by the appellant challenging the concurrent findings of the Trial court and appellate court, both of which had decreed in favour of respondent No.1 regarding possession and mesne profits of the suit property---Trial Court ordered the appellant to hand over vacant possession and pay mesne profits of Rs. 20,000 per month until delivery of possession which decision was upheld in appeal---It was the case of the appellant/defendant that respondent No.1 was neither the bona fide purchaser nor absolute owner of the suit property; that the suit property was originally purchased by the appellant's deceased father and paternal uncle (respondent No.1's father) in a benami transaction, and was held in trust by the latter for the legal heirs; that no consideration was paid for the transfer of the property to respondent No.1, which was based solely on a registered gift deed---Held: Appellant/defendant had neither sought cancellation of the gift deed nor filed suit for declaration that the subject property was owned by his deceased father---Moreover, paternal uncle of appellant who was stated to be the custodian of the suit property allegedly held in trust for the purpose of administration, did not file any application to be impleaded as party in the suit---Further, there was no evidence on record to reflect that the donor challenged the gift deed---The ingredients of a benami transaction were not even pleaded by the appellant and the courts below had correctly observed that the entire defense of the appellant was based on his oral and unsubstantiated assertions---Burden of proving the benami transaction was correctly placed on the appellant and same was in accordance with Art. 117 & 119 of the Qanun-e-Shahadat, 1984---No infirmity was found warranting interference by the High Court in concurrent findings of courts below as jurisdiction under S.100 C.P.C. was restricted as there was no misreading or non-reading of evidence or perverse appreciation of evidence on record.

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

----S.42---Qanun-e-Shahadat (10 of 1984), Art.117---Benami declaration---Onus to prove---Scope---Onus to prove in a suit for benami declaration lies upon plaintiff---The reason being that it is the plaintiff who has come to the Court to seek such declaration which is in fact a positive declaration being sought by the plaintiff---In terms of Art.117 of the Qanun-e-Shahadat, 1984, the onus to prove a claim is on the person who asserts such claim---It is not that plaintiff can come to the Court and thereafter, on the basis of defendants evidence try to make out its case---It was the plaintiffs who had sought a declaration of benami transaction and had prayed to give judgment as to their alleged legal right on the basis of facts asserted by them, therefore, it was for them to prove that those facts existed for which the burden laid on them.

Manzoor Butt v. Mahmud Sufi 2016 CLC 1284 ref.

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

----S.42---Benami transaction---Proof---Necessary ingredients---Two essential elements must exist to establish the benami status of a transaction---The first element is that there must be an agreement express or implied between the ostensible owner and the purchaser for purchase of the property in the name of ostensible owner for the benefit of the person who has to make payment of the consideration; and second element required to be proved is that transaction was actually entered between the real purchaser and seller to which ostensible owner was not a party.

Ch. Ghulam Rasool v. Nusrat Rasool PLD 2008 SC 146 rel.

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

----S.100---Second appeal---Interference in concurrent findings of courts below---Scope---It is settled law that concurrent findings are not interfered with under S.100 of the C.P.C. unless the lower courts have misread the evidence on record, or may have ignored a material piece of evidence on record through perverse appreciation of evidence.

Faqir Syed Anwar-ud-Din v. Syed Raza Haider and others PLD 2025 SC 31 rel.

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

----S.100---Second appeal---Reappraisal of evidence---Scope---Reappraisal of evidence on record by the second appellate court is not permissible while exercising jurisdiction under S.100 of C.P.C.

Faqir Syd Anwar-ud-Din v. Syed Raza Haider and others PLD 2025 SC 31 rel.

Syed Nadeem-ul-Haq for Appellant.

Adnan Ahmed for Respondents.

Date of hearing: 6th May, 2025.

Judgment

Muhammad Jaffer Raza, J.---Instant 2nd Appeal has been preferred against Impugned judgment and decree dated 09.03.2023 passed in Civil Appeal No.75/2021 by the VI-Additional District Judge/Model Civil Appellate Court-Ext., Karachi Central. The said civil appeal emanated from the judgment and decree dated 26.02.2021 passed in Suit No.1174/2015 by the XIth Senior Civil Judge, Karachi Central, which was filed by the Respondent No.1. Facts of the case are summarized as follows: -

1. Suit No.1174/2015 was filed by the Respondent No.1, with the following prayers: -

a) defendants be directed to hand over vacant the peaceful vacant possession of the suit property bearing plot No.C1-200 admeasuring 120 square Yards, situated in Sector 16-B, North Karachi Industrial Area, Karachi;

b) defendants further directed to ensure regular payment of utility bills of the suit property and continue the same till delivery of vacant possession and to submit the paid copies of utility bills before this Hon'ble Court;

c) defendant No.2 be directed to pay/deposit regularly the monthly rent for first and 2nd floor of suit property @ of Rs.40,000/- with the Nazir of this Hon'ble Court, in the case the defendant No.2 fails to deposit said monthly rent, then the defendant No.1 be directed to deposit before Nazir of this Hon'ble Court an amount Rs.2000/- as Mesne profit of the suit property w.e.f. 28.09.2014 till final disposal of instant matter;

d) perpetual injunction be granted by restraining the defendants their legal heirs, servants, agents, attorney and or any other person and/or persons acting or claiming on their behalf from selling out renting out, mortgaging and/or creating any third party interest and whatsoever in respect of the suit property, i.e. plot No.C1-199, admeasuring 120 square yards, situated in Sector 16-B, North Karachi Industrial Area, Karachi;

e) cost of the suit be awarded;

f) any other relief deemed fit and proper by this Honorable court under the facts and circumstances of the case, may also be granted in favor of the plaintiff;

1. After recording of evidence of the respective parties, instant suit was decreed vide judgment and decree dated 26.02.2021. The suit of the Respondent No.1 was decreed to the extent that the Appellant was directed to handover the vacant physical possession of the suit property within thirty (30) days from the date of judgment and decree and clear all utility bills of the suit property. The Appellant was further directed to pay mesne profit of the suit property to the Respondent No.1 at the rate of Rs.20,000/- per month till handing over physical possession of the suit property. The said judgment and decree were Impugned in Civil Appeal No.75/2021 and the same was dismissed vide Impugned judgment and decree. Learned counsel for the Appellant through the instant IInd appeal, has Impugned the concurrent findings of the Courts below.

2. It has been argued by the learned counsel for the Appellant that the Respondent No.1 is neither the bona fide purchaser of the suit property nor the absolute owner of the suit property, which according to learned counsel, was purchased by the father of the Appellant ("deceased") and Respondent No.1, as a benami transaction. The subject property stood in the name of Mashhood Ahmed Siddiqui brother of the deceased. It was asserted by the learned counsel for the Appellant that the Appellant never paid any consideration to the said Mashhood Ahmed Siddiqui and the said property was transferred in the name of the Respondent No.1 without any sale consideration whatsoever. It was contended by the learned counsel for the Appellant that the same was done in good faith, in trust for legal heirs of the deceased. He has further stated that considering that the subject property was not purchased by the Respondent No.1 and was only kept in trust for the legal heirs, the Appellant cannot be dispossessed from the property in question. He has also stated that he has invested substantial sums of money in the subject property from his own resources and the subject property in question is in his possession.

3. Conversely, learned counsel for the Respondent No.1 has stated that he is the exclusive, lawful and registered owner of the subject property through declaration of oral gift deed dated 12.03.1990. The said gift deed was executed in his favour by his deceased paternal uncle, namely, Mashhood Ahmed Siddiqui and subsequently transfer letter dated 12.04.2005 was issued in favour of the said Respondent. He has further stated that the Appellant has impugned the concurrent findings of the Courts below, and the same require no interference as the same are legally sound and based upon the evidence recorded by the respective parties.

4. I have heard the learned counsel for the parties, perused the record with their able assistance. I have also asked the learned counsel for the Appellant specifically whether he has sought any cancellation of said registered gift deed in favour of the Respondent No.1. Learned counsel for the Appellant in this respect has replied in the negative and stated that no such suit has been filed. I have further inquired whether any suit for declaration has been filed claiming or seeking a declaration that the subject property was owned by his deceased father. Expectedly, the answer of this question was no different. Learned counsel has further stated that his paternal uncle namely, Mashhood Ahmed Siddiqui, was the custodian of the said property, which was to be held in trust for the purposes of administration. However, it is noted that the said individual i.e. paternal uncle did not file any application to be impleaded as a party in the above-mentioned suit. Further, there is no evidence on record to reflect that the donor namely Mashood Ahmed Siddiqui challenged the said gift deed. The ingredients of benami were elaborated by the Honourable Supreme Court in the case of Ch. Ghulam Rasool v. Nusrat Rasool wherein it was held as under: -

"This may be seen that two essential elements must exist to establish the benami status of the transaction. The first element is that there must be an agreement express or implied between the ostensible owner and the purchaser for purchase of the property in the name of ostensible owner for the benefit of the person who has to make payment of the consideration and second element required to be proved is that transaction was actually entered between the real purchaser and seller to which ostensible owner was not party." (Emphasis added)

1. Reliance in this regard can also be placed on the case of Manzoor Butt v. Mahmud Sufi wherein the ingredients pertaining to benami were expounded in the following words: -

"It is pertinent to observe that this is a Suit for Benami declaration and per settled law the onus lies on the plaintiff in such matters. The reason being that it is the plaintiff who has come to the Court to seek such declaration which is in fact a positive declaration being sought by the plaintiff. In terms of Article 117 of the Qanun-e-Shahadat Order, 1984, the onus to prove a claim is on the person who asserts such claim. It is not that plaintiff can come to the Court and thereafter, on the basis of defendants evidence tries to make out its case. It is the plaintiffs who have sought a declaration of benami transaction and have prayed to give judgment as to their alleged legal right on the basis of facts asserted by them, therefore, it is for them to prove that those facts exist for which the burden lies on them.

1. In a Suit for Benami declaration, the plaintiff has to show that firstly there was a motive and reason to buy such property as Benami, and thereafter once such motive has been shown, the plaintiff must also show that, the subject property was purchased from its resources. If these two things are missing in a positive manner, then perhaps the Court cannot consider any further evidence." (Emphasis added)

2. Admittedly, none of the above ingredients were even pleaded by the Appellant and the courts below have correctly observed that the entire defense of the Appellant was based on his oral and unsubstantiated assertions. It is also observed that the case of the present Appellant is at weaker footing in comparison with the judgement in the case of Manzoor Butt (supra) for the reason that the said Appellant never filed a suit for declaration and cancellation pertaining to the subject property. This for the Appellant, proved to be fatal to his claim. It is held in the same vein, that the learned trial court correctly placed the burden of proving the benami transaction on the Appellant and the same was in accordance with Articles 117 and 119 of the Qanun-e-Shahadat Order, 1984.

8.(sic) Further, certain admissions made by the Appellant during his cross-examination also extinguished his plea pertaining to his claim. Relevant portions of the cross-examination are reproduced below: -

2025 M L D 1918

[Sindh]

Before Adnan Iqbal Chaudhry, J

Muhammad Rafiq---Applicant

Versus

The State---Respondent

Criminal Bail Application No. 782 of 2024, decided on 24th April, 2024.

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

----S. 497(1), third-proviso clause (b)---Penal Code (XLV of 1860), S. 396---Dacoity with murder---Post-arrest bail, grant of---Statutory ground of delay in conclusion of trial---Charge framed by the Trial Court against the applicant could be punished with death, therefore, for the ground of statutory delay, the period of delay to be considered was of 2 years under clause (b) of the third-proviso to S.497(1), Cr.P.C.---Whether said period of 2 years was to be reckoned from the date of arrest or commencement of 'trial' i.e. date of framing charge---Held: Period of 2 years is to be reckoned from the date of arrest for counting the period for the statutory ground of delay---Statutory ground of delay is to be considered from the date of arrest/detention---Date of framing charge is of little importance---Intent being that the trial should be conducted expeditiously and pre-conviction detention should not exceed 2 years---In the present case, the applicant was in detention for 2 years before he moved the application for bail on the statutory ground of delay---Applicant was entitled to bail on the statutory ground of delay under the third proviso to S.497(1),Cr.P.C.---Bail was granted to the applicant, in circumstances.

Ali Akbar v. The State 2020 SCMR 1225; Shakeel Shah v. The State 2022 SCMR 1 and Nadeem Samson v. The State PLD 2022 SC 112 ref.

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

----S. 497(1), third & fourth provisos---Penal Code (XLV of 1860), S. 396---Dacoity with murder---Post-arrest bail, grant of---Statutory ground of delay in conclusion of trial---Scope---In the present case, the applicant was in detention for 2 years before he moved the application for bail on the statutory ground of delay---Regarding the first exception, the act or omission by the accused to delay trial must be a visible concerted effort orchestrated by him---Regarding the second exception, the words hardened, desperate or dangerous mean a person who would be a serious threat to society if set on bail---The final challan was filed in Court after nearly 4 months of the applicant's arrest---From the diary of the Trial Court it appeared that the I.O. took his sweet time to complete the investigation and the Trial Court had to issue show-cause notices to him before he filed the final challan---Thereafter, the matter was delayed either for a supplementary report or for transfer of the case to the Sessions Judge or due to the non-production of accused persons by the jail authorities, none of which could be attributed to the applicant---Even after the framing of charge, the case diary did not show any delay on the part of the applicant, rather it was the prosecution which had not examined a single witness since then---Therefore, the first exception to the ground of statutory delay could not be urged by the prosecution---Applicant was implicated in an another FIR for the offence under S.7 of the Anti-Terrorism Act, but he was tried and acquitted in that case---No record of any other case of the nature was pending against the applicant---Therefore, thus far, there was nomaterial before the Court to allege that the applicant was a dangerous criminal or that he was accused of an act of terrorism punishable with death or imprisonment for life, hence the second exception to the statutory ground of delay was also not attracted to deny bail---Applicant was entitled to bail on the statutory ground of delay under the third proviso to S.497(1),Cr.P.C.---Bail was granted to the applicant, in circumstances.

Shakeel Shah v. The State 2022 SCMR 1 ref.

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

----S. 497(1), third & fourth provisos---Penal Code (XLV of 1860), S. 396---Dacoity with murder---Post-arrest bail, grant of---Statutory ground of delay in conclusion of trial---Scope---Submission of the prosecution being that the applicant had been identified by two eye-witnesses at an identification parade as the person who fired upon the deceased---Validity---Evidence was yet to be tested at trial---In any case, the bail on the statutory ground of delay is of right and not by way of discretion and it cannot be defeated but for the exceptions discussed in the third and fourth proviso to S.497(1),Cr.P.C.---Applicant was entitled to bail on the statutory ground of delay under the third proviso to S.497(1),Cr.P.C.---Bail was granted to the applicant, in circumstances.

Zahid Hussain Shah v. The State PLD 1995 SC 49 and Muhammad Usman v. The State 2024 SCMR 28 ref.

Tahir-ur-Rehman Tanoli for Applicant.

Zafar Ahmed Khan, Additional Prosecutor General for the State.

Date of hearing: 24th April, 2024.

Order

Adnan Iqbal Chaudhry, J.---The Applicant seeks post-arrest bail in the aforesaid crime on the statutory ground of delay after the same has been declined by the trial court vide order dated 18-03-2024.

1. Per the FIR, on 16.01.2022, three persons on a motorcycle robbed the Complainant's shop when it was manned only by his son who was shot in the process; that the Complainant, who resided above the shop, reached the scene after hearing the gun shot; and according to him, the crime was witnessed by residents of the vicinity including Abdul Rehman and Qurban. The Complainant's son eventually succumbed to the injury and passed away.

2. The Applicant was arrested on 12.03.2022. At that time he was already under arrest in FIR No. 132/2022 lodged at P.S. Gulshan-e-Maymar for offences under sections 253, 324 P.P.C read with section 7 ATA. He was produced before the Magistrate for an identification parade on 17.03.2022, where he was identified by the aforesaid eye-witnesses as the person who fired at the deceased.

3. Heard learned counsel for the Applicant, learned Additional Prosecutor General, Sindh and perused the record.

4. The FIR was lodged for offences under sections 392, 397, 34 P.P.C. However, the charge framed by the trial court against the Applicant is for the offence under section 396 P.P.C i.e. dacoity with murder which can be punished with death. Therefore, for the ground of statutory delay, the period of delay to be considered is of 2 years under clause (b) of the third-proviso to section 497(1) Cr.P.C.

5. Per learned Prosecutor, the aforesaid period of 2 years is to be reckoned from the date of commencement of 'trial' and hence the date the charge was framed which was 22.11.2023. On the other hand, learned counsel for the Applicant relies on Ali Akbar v. The State (2020 SCMR 1225) to submit that the period of 2 years was to be reckoned from the date of arrest which was 12.03.2022. Indeed, in Ali Akbar, the Supreme Court counted the period for the statutory ground of delay from the date of arrest. More recently, that point has been discussed more elaborately by the Supreme Court in Shakeel Shah v. The State (2022 SCMR 1), and reiterated in Nadeem Samson v. The State (PLD 2022 SC 112), where it has been held that the statutory ground of delay is to be considered from the date of arrest/detention, and that the date of framing charge is of little importance, the intent being that the trial should be conducted expeditiously and pre-conviction detention should not exceed 2 years. In the instant case, the Applicant was in detention for 2 years before he moved the application for bail on the statutory ground of delay.

6. There are two exceptions to the ground of statutory delay provided in section 497(1) Cr.P.C. The first is in the third-proviso itself viz. where delay in the trial has been occasioned by an act or omission of the accused or any other person acting on his behalf. The second exception is in the fourth-proviso viz. where the accused is a previously convicted offender for an offence punishable with death or imprisonment for life, or a hardened, desperate or dangerous criminal, or is accused of an act of terrorism punishable with death or imprisonment for life. The scope of these exceptions is also discussed in the case of Shakeel Shah. As regards the first exception, it was observed that the act or omission by the accused to delay trial must be a visible concerted effort orchestrated by the accused. As regards the second exception, it was observed that the words 'hardened, desperate or dangerous' mean a person who would be a serious threat to society if set on bail.

7. The final challan was filed in Court on 06.07.2022 i.e. after nearly 4 months of the Applicant's arrest. From the diary of the trial court it appears that the I.O. took his sweet time to complete the investigation, and the trial court had to issue show-cause notices to him before he filed the final challan. Thereafter, the matter was delayed either for a supplementary report, or for transfer of the case to the Sessions Judge, or due to the non-production of accused persons by the jail authorities, none of which can be attributed to the Applicant. Even after the charge was framed on 22.11.2023, the case diary does not show any delay on the part of the Applicant, rather it is the prosecution which has not examined a single witness since then. Therefore, in the circumstances of the case, the first exception to the ground of statutory delay cannot be urged by the prosecution.

2025 M L D 1930

[Sindh (Sukkur Bench)]

Before Arbab Ali Hakro and Abdul Hamid Bhurgri, JJ

WaseeM Ahmed---Petitioner

Versus

The State through Prosecutor General Sindh and 3 others---Respondents

Constitution Petition No. D-728 of 2025, decided on 26th June, 2025.

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

----S. 497---Sindh Control of Narcotic Substances Act (VIII of 2024),S. 9(1), Serial No.(1)(b)---Possession of narcotic substances---Bail, grant of---Further inquiry---Allegation against the accused-petitioner was that 5200-grams bhang was recovered from his possession---In view of the statutory bar contained in S.35(1) of the Sindh Control of Narcotic Substances Act, 2024, the ordinary remedy of bail was not available---However, such restriction did not preclude the constitutional jurisdiction of the High Court under Article 199 of the Constitution, which remained available where no alternate or efficacious remedy existed and the fundamental right to liberty was at stake---Right to liberty was a fundamental right, guaranteed Under Arts. 9 and 14 of the Constitution, where such liberty was curtailed by operation of statutory bar, regardless of the individual merits of the case, the High Court's constitutional jurisdiction remained available to ensure that the mandate of the Constitution was not defeated by the procedural rigidity---Alleged recovery of 5200 grams of Bhang fell under S.9(1), Serial No.(1)(b) of Sindh Control of Narcotic Substances Act, 2024, carrying imprisonment which might extend to seven years but shall not be less than three years---At bail stage lesser punishment was to be considered---Accordingly, alleged recovery from the petitioner did not fall within the prohibited degree---Alleged recovery proceedings were conducted without associating any independent witness, which casted doubt on the credibility of the prosecution's version---FIR had been lodged by an officer who prima facie did not appear to be duly authorized under the Act---No video recording of the incident had been produced as required under the statutory framework---Petitioner also had no prior criminal record---Alleged recovered quantity of Bhang (Hemp) did not fall within the definition of commercial quantity under the Act and as such, the offence did not attract the prohibitory clause---In cases not falling within the prohibitory clause, bail is to be granted as a rule unless exceptional circumstances existed---In these circumstances, the case called for further inquiry---Absence of electronic evidence such as video recording and the questionable competence of the complainant officer further weakened the prosecution's stance---Where the law imposes a bar on bail the procedural safeguards provided under the same statute must be strictly observed by the prosecution---Failure to comply with mandatory requirements such as association of independent witnesses, proper documentation, lawful authorization of the complainant officer and video recording prescribed seriously undermined the prosecution's case---When liberty is curtailed through exceptional statutory bars the obligation to act in strict conformity with the law must be enforced with equal vigour---Bail petition was allowed, in circumstances.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Muhammad Abid Hussain v. The State 2025 SCMR 721 and Zahid Sarfaraz Gill v. The State 2024 SCMR 934 rel.

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

----S. 497---Bail---Observations of the Court---Scope---Observations made by the Court in bail order are tentative in nature and should not prejudice the Trial Court in determining the matter on merits.

Achar Khan Gabol for Petitioner.

Ali Raza Baloch, Additional Advocate General Sindh, Aftab Ahmed Shar, Additional Prosecutor General Sindh for the State.

Date of hearing: 24th June, 2025.

Order

Abdul Hamid Bhurgri, J.---The petitioner being an accused seeks his post arrest bail in a case crime No.46/2025 of PS Setharja, district Khairpur for offence punishable Under Section 9-1(b) CNS Act, the Sindh Control of Narcotic Substances, Act, 2024 (hereinafter it will be referred as Act, 2024).

1. According to the First Information Report (FIR), on 14.05.2025 at approximately 1400 hours, the complainant ASI Rahimdad, accompanied by his subordinates PC Sajid Hussain, PC Amir, PC Zaheer Ahmed, and DPC Mureed Hussain, departed the police station pursuant to entry No. 12 for routine patrolling. While conducting patrol duties near Sim Nalo Satro Link Road, a motorcyclist was observed emerging from Saindad Solangi village, with a black plastic shopper affixed to the petrol tank of his motorcycle. The patrol team intercepted and apprehended the individual at approximately 1430 hours. Due to the unavailability of private mashirs, PCs Sajid Hussain and Zaheer Ahmed were designated as official mashirs. Upon inquiry, the apprehended individual disclosed his identity as Waseem Ahmed. A search of the plastic shopper allegedly revealed a quantity of bhang weighing 5200 grams, which was sealed on site. A subsequent body search yielded two currency notes of Rs. 100 each, along with an Oppo mobile phone from his right pocket. The accused also failed to produce any documentation pertaining to the motorcycle. A memo of arrest and recovery was prepared by the complainant in accordance with prescribed procedure, following which the accused and the seized contraband were brought to the police station, where the FIR was formally lodged.

2. Learned counsel for the petitioner contended that his client has been falsely implicated at the hands of the police owing to his refusal to comply with an illicit demand for bribe. It was submitted that the alleged offence does not fall within the ambit of the prohibitory clause, and that the continued detention of the petitioner no longer serves any legitimate investigatory purpose. It was further argued that the arrest took place in a densely populated locality, yet no private individual was joined as a mashir, thereby breaching the mandatory provisions of Section 103 of the Code of Criminal Procedure. The learned counsel maintained that in light of the aforementioned circumstances, the matter warrants further inquiry as contemplated under Section 497(2) Cr.P.C., and accordingly prayed for the grant of post-arrest bail.

3. In rebuttal, the learned Additional Prosecutor General, Sindh, vehemently opposed the bail application. He submitted that the petitioner was apprehended red-handed at the scene of the offence, and that his name has been specifically mentioned in the FIR. On these grounds, he argued that the petitioner is not entitled to the concession of post-arrest bail and urged for the dismissal of the bail petition.

4. We have heard learned counsel for the parties and examined the record with circumspection.

5. In view of the statutory bar contained in Section 35(1) of the Sindh Control of Narcotics Substances Act, 2024, the ordinary remedy of bail is not available. For the sake of convenience section 35(1) of the Act, 2024 is reproduced as under:-

"Notwithstanding anything contained in sections 496 and 497 of the Code, the bail shall not be granted to an accused person charged with an offence under this Act".

1. However, such restriction does not preclude the constitutional jurisdiction of this Court under Article 199 of the Constitution, which remains available where no alternate or efficacious remedy exists and the fundamental right to liberty is at stake. It is well established that the right to liberty is a fundamental right, guaranteed Under Articles 9 and 14 of the Constitution, where such liberty is curtailed by operation of statutory bar, regardless of the individual merits of the case, the High Court's Constitutional jurisdiction remains available to ensure that the mandate of the Constitution is not defeated by the procedural rigidity. This Constitution Petition is held to be maintainable. Reliance is placed on the judgment of the Honourable Supreme Court in case of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607).

2. On merits, the alleged recovery of 5200 grams of Bhang falls under Section 9-1(b) of Sindh Control of Narcotics Substance, Act, 2024 carries imprisonment which may extend to seven years but shall not be less than three years and it is settled law that at bail stage lesser punishment is to be considered, accordingly, alleged recovery from the petitioner does not fall within the prohibited degree. Alleged recovery proceedings were conducted without associating any independent witness, which casts doubt on the credibility of the prosecution's version. The FIR has been lodged by an officer who prima facie does not appear to be duly authorized under the Act. No video recording of the incident has been produced as required under the statutory framework. The petitioner also has no prior criminal record. The alleged recovered quantity of Bhang (Hemp) does not fall within the definition of commercial quantity under the Act, and as such, the offence does not attract the prohibitory clause. It is a settled principle that in cases not falling within the prohibitory clause, bail is to be granted as a rule unless exceptional circumstances exist. In these circumstances, the case calls for further inquiry.

3. The absence of electronic evidence such as video recording and the questionable competence of the complainant officer further weaken the prosecution's stance. The Honourable apex Court in the case of Muhammad Abid Hussain v. The State (2025 SCMR 721) has emphasized the indefensible nature of procedural fairness and technical evidence in narcotics cases. It was held that the absence of video footage and independent witness seriously compromise the case of prosecution. Furthermore, in the case of Zahid Sarfaraz Gill v. The State (2024 SCMR 934), the Court has emphasized on video recording in narcotic cases.

2025 M L D 1939

[Sindh]

Before Muhammad Iqbal Kalhoro and Muhammad Usman Ali Hadi, JJ

Sikandar Ali and others---Appellants

Versus

Waris Ali and others---Respondents

H.C.A No. 129 of 2020, decided on 17th February, 2025.

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

----S. 5---Limitation--- Condonation of delay---Sufficient cause--- Scope ---Delay of each day in approaching the court for filing a lis or an appeal etc. against the order etc. has to be explained --- In the present case, the appellants' attorney has miserably failed to account for the delay of each day in filing the appeal--- Appellants' failure in contacting their advocate or pursuing the matter posits indolence and negligence on their part for which the opposing party cannot be penalized nor certain rights created in their favour thus taken away---Law of limitation has to be construed in strict sense because due to negligence and indolence of one party in pursuing the matter in the court, the valuable rights are accrued in favour of the other party which cannot be done away with on flimsy and unsubstantiated grounds---Delay in filing appeal etc. against the order etc. cannot be condoned without being satisfied about validity and sufficiency of the grounds raised for condonation of such delay---In the present case, the vague and generalized statement has been given by the attorney in his affidavit regarding gaining knowledge of the dismissal of the suit---Appellants who have purportedly executed power of attorney in favour of their attorney have not come forward to file affidavits confirming the story narrated by their attorney---There is nothing on record to show as to why for a long time the appellants failed to pursue the case and did not produce evidence despite so many chances given by the Single Judge of this /High Court--- Thus, the appeal was hopelessly time barred---High Court dismissed application under S.5 of Limitation Act, 1908 --- Appeal, being time barred, was dismissed accordingly.

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

---- S. 5 --- Limitation --- Condonation of delay --- Sufficient cause---Instances --- A counsel's neglect to inform his client about fate of the case would not per se be a sufficient ground for condonation of delay when valuable rights accrue in favour of opposition party---Ground of living of the petitioner in a far off village and his lack of knowledge regarding dismissal of the appeal by High Court being a matter purely between him and his counsel, cannot be considered a sufficient ground for condonation of delay---Non supply of cause list to counsel for a party would not constitute a valid ground for condonation of delay in absence of affidavit of the person concerned---On account of dismissal of the suit, valuable rights accrued in favour of defendants which could not be taken away unless justifiable strong and convincing cause was shown to the court.

Muhammad Nawaz and others v. Mst. Sakina Bibi and others 1974 SCMR 223; Ahmed Din v. Ghulam Muhammad through legal heirs and others 2000 SCMR 647; Mst. Hajra Bibi and others v. Abdul Ghani 2002 SCMR 1405 and Irshad Ahmed v. Pervez Akhtar and others 2000 MLD 1 ref.

Muhammad Taseer Khan and M. Amin Motiwala for Appellants.

Fahad Hussain for Respondents.

Syed Hussain Shah, A.A.G.

Date of hearing: 17th February, 2025.

Judgment

Muhammad Iqbal Kalhoro, J.---Appellants filed a suit before this court on original side against respondents for declaration, cancellation and permanent injunction seeking following reliefs:-

A. For a Declaration that the Suit property has always been and is still the property of the partnership firm/plaintiff No.3, and that the deceased defendant No.3 was never the sole or absolute owner of the Suit property:

B. For a Declaration that the plaintiffs 1 and 2 are the lawful co-owners of the Suit property having 1/3rd share each therein, and that the remaining 1/3rd share in the Suit property belongs to the defendants 2(a) to 3(h) being the legal heirs of the deceased defendant No.3:

C. For a Declaration that the defendants 3(a) to 3(h) had no right, power, authority or locus standi to enter into any Agreement in respect of the Suit property with the defendant No.2, and that such Agreement was mala fide, collusive and void ab initio;

D. For a Declaration that the defendants 3(a) to 3(h) had no right, power, authority or locus standi to transfer or convey the rights, title or interest in the Suit property in favour of the defendant No.2, and that the defendant No.2 has not acquired any right title or interest whatsoever in the Suit property:

E. For a Declaration that the alleged transfer of the Suit property in the name of the defendant No.2 by the defendant No.4 is illegal and void abinitio, and similarly, the alleged sale and/or transfer of the Suit property by the defendant No.2 in favour of the defendant No.1 and to defendants Nos. 6 to 11 is also illegal and void ab inios;

F. For Cancellation of the alleged Sale Deed of the Suit property in favour of the defendant No.2, and/or all such Agreement/Deeds transferring the Suit property in favour of the defendants Nos. 1, 6 to 11 and/or in favour of any third party:

G. For Permanent Injunction restraining the defendants 1,2 and 3(a) to 3(g), 6 to 11 from claiming any right, title or interest in the Suit property, and/or from raising construction thereon, and/or from creating any type of third party interest therein. The defendants 4 and 5 may also be restrained from transferring the Suit property in favour of the defendant No.1 and/or in favour of any third party;

H. For any other / additional relief(s) that this Hon'ble Court may deem fit and proper in the facts and circumstances of this case; and

I. Costs of the Suit.

1. In response to a notice, respondents filed written statement contesting merits and challenging maintainability of the suit. However, issues were framed and appellants were called upon to lead evidence but they failed to respond. Finally, on 06.12.2019, noting consistent and regular absence of the appellants demonstrating lack of interest on their part to produce evidence, learned single judge of this court proceeded to dismiss the suit for want of evidence vide impugned order dated 06.12.2019 and decree drawn on 13.12.2019. This order and decree have been challenged by the appellants through the instant appeal filed on 13.07.2020 after the limitation of 20 days prescribed under Article 151 of Limitation Act for filing appeal from the decree or order of the High Court in the exercise of its original jurisdiction. Seeking condonation of delay in filing appeal, the appellants have filed an application under section 5 of Limitation Act supported by affidavit filed by attorney of appellants namely Sadiq.

2. A perusal of his affidavit shows that the reason for filing the appeal with delay is absence of the appellants from the country and their living in Dubai since long. In the said backdrop, attorney of the appellants has alleged that when on 19.06.2020 he was passing by the area, he found the building and houses standing on the property No.86 situated in Depot Lines/N.I. Lines Cantonment Area, Karachi (Suit property) were demolished by the respondents, hence he immediately informed appellant No.2 who instructed him to contact his advocate Mr. Raja Qureshi. On inquiry, he was found long dead and no one left to attend his cases, hence he rushed to the relevant staff of the court, who informed him about dismissal of the suit by the impugned order for want of evidence. Then, after getting special power of attorney from the appellants, on their instructions, he filed the appeal after obtaining certified true copies of the order and decree. It is further stated in the supporting affidavit that before dismissal of the suit, no notice was issued to the appellants to appear and produce evidence and since the appellants were residing in Dubai, they were not aware of either death of their advocate or process of the court requiring their appearance for evidence. It is further stated that the subject property is owned by M/s Charan Enterprises, appellant No.3 which is a partnership firm formed by appellants Nos.1 and 2 and the deceased Muhammad Ismail, the predecessor of respondents. The suit property was not the sole and absolute property of deceased Muhammad Ismail as alleged by respondents, therefore, limitation would not be a hurdle in the case to defeat merits of the case. This application under section 5 of Limitation Act has been vehemently opposed by the respondents by filing written objections to it.

3. Learned counsel for appellants in his arguments has reiterated the grounds already encapsulated in supporting affidavit of the attorney of the appellants. While, his arguments have been opposed by learned counsel for respondents.

4. We have considered submissions of the parties and perused material available on record. Admittedly under Article 151 of Limitation Act, period for filing the appeal against an order or a judgment of High Court exercising original jurisdiction is 20 days. The impugned order was passed on 06.12.2019 and then on 13.12.2019 the decree was drawn. An application for obtaining certified true copies thereof was filed on 11.07.2020 which is almost after seven months of the order and decree. The grounds to justify such delay postulated by attorney in his affidavit is that the appellants are residing in Dubai and were not in contact with their counsel Mr. Raja Qureshi, who had assured them of looking after their interest in the suit in their absence and intimate them if their presence was ever required for evidence. These facts however, have been stated by the attorney in his own affidavit and not by the appellants themselves through affidavits. Although, the attorney has filed special power of Attorney but to support his aforesaid statement, has not filed the affidavits of appellants to the effect that they were not aware of either death of their advocate or the dismissal of the suit for want of their evidence. If the attorney can file the power of attorney executed by the appellants living in Dubai, he could have easily filed their affidavits to support the facts narrated by him. Failure to do so has cast a dark spell on the story revealed by the attorney in his affidavit.

5. Not the least, when nothing has been brought on record to establish that appellants Nos. 1 and 2's permanent residence in Dubai. Prima facie no documentary evidence in this regard has been filed to support such fact. Besides, the story narrated by the attorney that on 19.06.2020 when he passed by the suit property, he found the same to have been demolished by the respondents is not without a suspicion in that he has not provided substantial details in this regard relating to the time when he was passing by the property and the reason of his visiting the same area on that particular day and whether he was alone or in company of some body, and he was travelling in a vehicle or walking through it. It is also strange to note that he got alarmed on seeing the suit property, when admittedly he was neither party nor was even acting as attorney in the suit on behalf of the appellants. Even his own affidavit does not suggest that he had any knowledge about pendency of the suit between the parties.

6. Without having any nexus or interest in the suit property, attorney of the appellants getting alarmed on seeing the suit property that too by chance does not seem credible enough to believe him. Particularly in the context when he has neither described the reason of his visit nor other details as to why on that particular day he happened to be in the area leading him to spot its demolition and causing him alarm. That said, his statement: he saw the property having been demolished by the respondents on 29.06.2020 is generalized in tenor and at the best vague for want of necessary details.

7. It is a settled proposition of law that delay of each day in approaching the court for filing a lis or an appeal etc. against the order etc. has to be explained. In this case, the appellants' attorney has miserably failed to account for the delay of each day in filing the appeal. Appellants' failure in contacting their advocate or pursuing the matter posits indolence and negligence on their part for which the opposing party cannot be penalized nor certain rights created in their favour thus taken away.

2025 M L D 1950

[Sindh]

Before Zafar Ahmed Rajput and Tasneem Sultana, JJ

Mustafa Khan---Applicant

Versus

The sTate---Respondent

Criminal Bail Application No. 2794 of 2024, decided on 24th February, 2025.

Criminal Procedure Code (V of 1898)---

----Ss. 196 & 497---Penal Code (XLV of 1860), Ss. 124-A, 153-A, 500, 505, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Sedition, promoting enmity between different groups, defamation, public mischief, rioting armed with deadly weapons, unlawful assembly, act of terrorism---Bail, grant of---Further inquiry---Allegations against the accused-petitioner were that he was delivering a speech inciting the people to revolt against the State---S.196, Cr.P.C., grants power to the Federal or Provincial Government to decide whether a person should or should not be tried, as the trial may embarrass the Government at home or abroad, so S.196, Cr.P.C., creates a clog on the taking of cognizance of a case by a Court, which cap can be removed only, if complaint provided under S.196, Cr.P.C., is lodged on the authorization of the concerned Government---In present case, admittedly no complaint from Federal or Provincial Government or Authorized Officer had been made---Section 7 of the Act of 1997 had also been cited in the FIR---Provisions of the Act of 1997 were part of the FIR; S.12 ibid deals with the jurisdiction of Anti-Terrorism Court while S.19(3) of the Act of 1997 stipulates that Anti-Terrorism Court shall directly take cognizance of a case triable by such Court without the case being sent to it under S.190, Cr.P.C.---Section 32 of the Act of 1997 stipulates that the Act of 1997 has overriding effect---Thus, Anti-Terrorism Court can proceed with such cases irrespective of the bar contained in S.196, Cr. P.C., which provision would not in any way effect the taking of cognizance by the Anti-Terrorism Court in exercising power under S.19 of the Act of 1997 for offence falling in Chapter VI of P.P.C. without having approval of Government---Section 124-A, P.P.C., provides two types of punishments i.e. one of imprisonment for life and other of imprisonment which may extend to three years---Hence the Trial Court had to form opinion after considering the material brought on record in evidence as to whether in the circumstances of the case, it would be a case punishable with imprisonment of three years or life---Therefore, bail could be granted on the ground of further enquiry, as at bail stage it could not be definitely held that the case against the accused fell within the prohibitory clause of S.497, Cr.P.C.---Tentative assessment of the material available on record showed that the present applicant was not the main accused who made alleged speech---Even the name of main accused was not mentioned in FIR---Only allegation against the applicant was that of raising slogans, however, the exact words of the alleged slogans were not mentioned in the FIR---Nothing was available on record to show if the prosecution was relying on any audio or video recording of the incident---Article 164 of Qanun-e-Shahadat, 1984, and S.27-B of the Act of 1997 provided the admissibility of such evidence secured through modern devices and electronic and forensic evidence---In the instant case, more than five months had passed, yet the Investigation Officer had not submitted final report under S.173, Cr.P.C., which by law he was required to submit after completing investigation in respect of cases triable by the Anti-Terrorism Court within thirty days as per S.19(2) of the Act of 1997---In such circumstances, accused could not be kept in jail for indefinite period---Bail application was allowed, in circumstances.

Salah Uddin Khan Gandapur and Safir Uddin Khan Gandapur for Applicant.

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

Date of hearing: 24th February, 2025.

Order

Tasneem Sultana, J.---Through this bail application, applicant/ accused, namely, Mustafa Khan son of Gul Hawas Khan seeks post-arrest bail in FIR No.1135 of 2024, registered at P.S Shah Latif Town, Karachi under sections 124-A, 153-A, 500, 505, 148 and 149, P.P.C., read with section 7 of the Anti-Terrorism Act, 1997 ("Act of 1997").

1. Precisely facts of the prosecution case are that, on 06.09.2024, complainant SIP Muhammad Rizwan along with his subordinate staff, while on patrolling, responded to an unauthorized gathering of PTM at Waziristan Road, Zafar Town, Karachi, where a person was delivering speech in Pushto and Urdu languages inciting the people to revolt against the State by saying that the uniform is behind the terrorism and that there are two laws in the country, one for Pushtoon and other for remaining Pakistanis. He was using indecent language against Generals of Army. The complainant with the assistance of his staff apprehended the applicant, who was raising slogan and also inciting the people. The alleged acts of the accused persons caused fear, panic and terror, however, a large number of armed persons fled from the crime scene. The complainant lodged the aforesaid FIR nominating 18 persons by names and 80-90 unknown accused persons.

2. Learned counsel for applicant has contended that the applicant has been booked under sections 124-A and 153-A, P.P.C., however, prosecution failed to comply with the provisions of section 196 of the Code of Criminal Procedure, 1898 ("Cr.P.C."), which requires prior permission from Government before filing a case under these sections. He has also contended that nothing incriminating has been recovered from the alleged place of incident, and no overt act has been assigned to applicant except that of his presence in the gathering; hence, the guilt against the applicant requires further inquiry entitling him to post-arrest bail.

3. Conversely, learned Additional P.G. Sindh, has vehemently opposed the instant bail application. She has maintained that the prosecution has no ill-will or personal grudge to implicate the applicant falsely and since the applicant was raising slogans against Pak Army, he attempted to create unrest, hatred and commotion in the minds of people against the Pak Army. She further maintained that the sections mentioned in the FIR have been properly applied and a letter for requisite permission under section 196, Cr.P.C has been sent, however, the same is being awaited; therefore, the applicant is not entitled to the concession of bail.

4. We have heard the learned counsel for the parties, and examined the record with their assistance.

5. We would like to attend first the legal and procedural question raised by the learned counsel for the applicant in respect of non-compliance of section 196, Cr.P.C. It may be pointed out that section 124-A is in Chapter-VI of P.P.C., which relates to the offences against the State. It would be advantageous to reproduce section 196, Cr.P.C which is an exception to the general rule that anyone can set the law in motion by lodging FIR: -

Sec 196: Prosecution for offences against the State. No Court shall take cognizance of any offence punishable under chapter VI or IX-A of the Pakistan Penal Code (except section 127), or punishable under section 108-A, or section 153-A, or section 294-A, or section 295-A or section 505 of the same Code, unless upon complaint made by order of , or under authority from, the Federal Government, or the Provincial Government concerned, or some officer empowered in this behalf by either of the two Governments.

1. The object of legislating section 196, Cr.P.C is to grant power to the Federal or Provincial Government to decide whether a person should or should not be tried as the trial may embarrass the Government at home or abroad, so section 196, Cr.P.C creates a clog on the taking of cognizance of a case by a court, which cap can be removed only, if complaint provided under section 196, Cr.P.C is lodged on the authorization of the concerned Government.

2. In present case, admittedly no such complaint from Federal or Provincial Government or authorized officer has been made. However, section 7 of the Act of 1997 has also been cited in the FIR, as offence allegedly committed by the applicant. The basic procedural law for trial of criminal cases is the Cr.P. C.; subsection (2) of Section 1 thereof clearly provides that nothing contained in Cr.P.C. shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for time being in force. As pointed out earlier, the provisions of the Act of 1997 are part of the FIR, Section 12 ibid deals with the jurisdiction of Anti-Terrorism Court ("ATC") while section 19(3) of the Act of 1997 stipulates that ATC shall directly take cognizance of a case triable by such court without the case being sent to it under section 190, Cr.P.C. It is pertinent to note that section 32 of the Act of 1997 stipulates that the Act of 1997 has over riding effect. For the sake of convenience, section 32 (1) ibid is reproduced, as under: -

32. Overriding effect of Act….(1) The provisions of this act shall have effect notwithstanding anything contained in the Code or any other law but, save as expressly provided in this Act, the provisions of the Code shall, in so far as they are not inconsistent with the previsions of this act, applied to the proceedings before [an Anti-Terrorism Court], and for the purpose of the said provisions of the Code, [an Anti-Terrorism Code] shall be deemed to be a Court of Sessions.

1. We are, therefore, of the view that ATC can proceed with such cases irrespective of the bar contained in section 196, Cr. P.C., which provision would not in any way effect the taking of cognizance by the ATC in exercising power under Section 19 of the Act of 1997 for offence falling in Chapter VI of P.P.C. without having approval of Government.

2. Section 124-A, P.P.C. provides two types of punishments i.e. one for imprisonment for life and other for imprisonment which may extend to three years. Hence the Trial Court has to form opinion after considering the material brought on record in evidence as to whether in the circumstances of the case, it would be a case punishable with imprisonment of three years or life. Reliance is placed on Zahid Malik v. The State (1990 PLJ 1310) where in similar circumstances bail has been granted on the ground of further enquiry, as at bail stage it cannot be definitely held that the case against the accused falls within the prohibitory clause of section 497, Cr. P.C.

2025 M L D 1958

[Sindh]

Before Shamsuddin Abbasi, J

Mehdi Ishaque---Applicant

Versus

IV Judicial Magistrate East at Karachi and 4 others---Respondents

Crl. Misc. Application No. 434 of 2020, decided on 11th March, 2025.

Criminal Procedure Code (V of 1898)---

----S. 561-A--- Penal Code (XLV of 1860), Ss. 100 & 397 --- Inherent powers of High Court---Quashing of order---Judicial Magistrate, after taking cognizance of the case, directed the Investigating Officer to register the FIR against the complainant---Scope---Complainant got lodged FIR under S.397, P.P.C.,against the accused persons---Complainant fired upon accused in self defence, due to which one accused died whereas other sustained injuries---After usual investigation, the Investigating Officer submitted challan against the accused and furnished his report that the applicant had acted in his defence therefore, S.100, P.P.C., was applied but the Judicial Magistrate had not considered all the said facts and directed the Investigating Officer to register the FIR against the applicant for committing murder of the deceased/accused---Validity---From perusal of impugned order, it revealed that on one hand Magistrate had taken the cognizance against accused for offence under S.397, P.P.C., and sent up case for disposal in accordance with law as the offence under S.397, P.P.C., was exclusively triable by Sessions Court---Case sent up for trial was proceeded against the accused and after a full-fledged trial, trial Court convicted co-accused/respondent and sentenced him R.I for seven years---On the other hand, Magistrate directed the Investigating Officer to registered the FIR against applicant/complainant for committing murder of deceased accused---Surprisingly, Magistrate denied the plea of self-defense and directed the SHO to register the FIR, without any substance and had not considered the fact that applicant had fired on the accused after the accused fired on him while fleeing after robbing the applicant---Even otherwise two FIRs of the same incident could not be registered---Thus, it appeared that the order passed by Magistrate was unjustified and unwarranted, thus the impugned order passed by Magistrate to the extent for registration of the FIR against the applicant/complainant was set-aside---Criminal Revision Application was allowed, in circumstances.

PLD 2018 SC 595 rel.

Mudasir Iqbal for Applicant.

Neel Parkash, Assistant Prosecutor General Sindh, for Respondent.

Order

Shamsuddin Abbasi, J.---Applicant Mehdi Ishaque is the complainant in FIR No.532 of 2020 registered with P.S Awami Colony, Karachi for offence punishable under Sections 397, 100 and 34 P.P.C.

The brief facts as depicted in the impugned order, reads as under;_

"Brief facts of the case are that the FIR has been registered against the accused namely Arshad @ Arshi son of in connection to FIR No 532/2020 under section 397 P.P.C in which complainant namely Mhendi Ishaq son of M.Ishaq resident of H.No N-465 Korangi No. 3 1/2 Karachi. Reported and stated he is working as a school administration at dated 21-10-2020 at 1020 hrs complainant reached at place of offence N-Area, Korangi No. 3 ½ Karachi near Madni Masjid. Suddenly 2 unknown accused were coming on M/C duly with arms and snatched cash Cash:4000/- and Mobile Phone Cash:4000/- and Mobile Phone from complainant and his friends namely Yasir after snatching accused fired upon the complainant and his friend and then were escaping from the scene meanwhile the complainant fired upon accused in self-defense from his 9MM license pistol No:T-1102-13E-12499 which resulted, the back side accused got hit with bullet and fall down from Motorcycle, and co-accused also got hit with bullet and fall down from Motorcycle, and co-accused also got injuries and then escaped from scene by throwing his pistol on his motorcycle thereafter complainant inform the Police who after few minutes arrived on the spot meanwhile injured accused dead at the spot. D/O ASI Mumtaz Gondal search to dead accused and recovered one pistol 30 bor with 2 round alive and one pistol co-accused snatching amount 2500/- one wallet contain Cash:1300/- and 2 CNIC Copy, one super market card 3 cordage 9MM one cordage 30 bor after legal proceedings dead body accused shifted to JPMC after postmortem MLO Dr. Imran verify the dead of accused and shifted to dead body of accused by Ambulance No:240 driver Shokat in Cheapa Charnal House. Hence the FIR."

Learned counsel for the applicant submits that the impugned order is illegal and unjustified for the reason that applicant/complainant has acted in his defense plea and accused sustained injuries. After usual investigation, the concerned police submitted challan against the accused and the I.O furnished his report that the applicant has acted in his defense, therefore, section 100 P.P.C was applied but the learned Magistrate has not considered all these facts and directed the I.O to register the FIR against the applicant/complainant for committing murder of deceased/accused Arshad @ Arshi as well as for causing injuries to the co-accused Khizaryuddin; that the learned trial Court has proceeded in the case and convicted the co-accused / respondent No.5 Khizaruddin and found him guilty and sentenced for seven years.

Learned counsel for the respondent is called absence without intimation. Same was the position of last three dates of hearing viz. 16.12.2024, 17.12.2024 and 16.01.2025.

2025 M L D 1968

[Sindh]

Before Muhammad Faisal Kamal Alam, J

Zia Ansari---Petitioner

Versus

Hafiz Muhammad Ashraf and 2 others---Respondents

Constitution Petition No. S-435 of 2020, decided on 24th January, 2025.

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

----Ss. 10 & 15(2)(ii)---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Default in payment of rent and bona fide personal need---Ejectment application filed by the landlord/respondent was allowed by the Rent Controller, which was upheld by the Appellate Court---Validity---Petitioner/Tenant in his evidence had admitted that he had sent the rent for four months, that is, July, August, September and October, 2014, through Money Order in the month of October, 2014 and that as per agreement, he was bound to pay monthly rent in advance latest by 5thof each calendar month---Previous conduct of the petitioner showed that he had defaulted in payment of rent, as he cleared the rent subsequently in installments---Petitioner admitted in his testimony that as per the agreement he had to pay the rent by 5thof each month, thus, rent of July 2014 should have been paid within 15 (fifteen) days, which admittedly was not done--It was not necessary that there should be a written tenancy agreement, but the standard practice between a landlord and tenant to pay and receive the rentals, which also constituted an agreement, should be adhered to while paying rent---If the acceptable practice between the landlord and tenant was that rent was to be paid by 5thof each month, then Sub-S. 2 (ii) of S. 15 would be applicable, that is, rent should be paid within fifteen days when the rent was due---Non-payment of rent carried a penal consequence, thus, evidence given by the parties must be construed strictly and in the event of a probable doubt, it must be resolved in favour of tenant rather than landlord---Plaintiff cannot get benefit from the weaknesses of the defendant's evidence alone, rather plaintiff has to prove his case on its own strength---Jurisdiction was exercised correctly by Courts below---Constitutional petition was dismissed, in circumstances.

Hirjibhai Behrana Dar-e-Meher through Attorney v. Messrs Bombay Steel Works, Partnership Firm, through Partner 2001 SCMR 1888; Hakim Ali v. Muhammad Salim and another 1992 SCMR 46; Sher Afgan v. Shaikh Anjum Iqbal 1997 MLD 98; Mushtaq-ul-Aarifin and others v.Mumtaz Muhammad and others 2022 SCMR 55; Sh. Fateh Muhammad v. Muhammad Adil and others PLD 2007 SC 460; Ijaz Ahmed Khan v. Jahanzeb Khan and others 2016 CLC Note 128; Nasir Akhtar v. Sher Alam 2019 YLR 1967; Abdul Rehman and others v. Ghulam Fatima and others 2017 YLR 2276; Ilyas Ahmed v. Muhammad Munir and 10 others PLD 2012 Sindh 92; Sir E.H. Jaffar and Sons Ltd. v. Sultan Karam Ali and others 1995 SCMR 330 and Naeem Noor Muhammad alias Naeem Cyclwala's 2017 CLC 625 distinguished.

Allah Din v. Habib PLD 1982 SC 465; Tajammal Hussain Shah v. Mst.Taj Aslam 1989 CLC 662; Abdul Rasheed v. Hanifur Rahman 1994 MLD 955; Muhammad Subhan and another v. Mst. Bilquis Begum through Legal Heirs and 3 others 1994 SCMR 1507; Abdul Mateen v. Muhammad Hussain (Late) 1997 CLC 216; Haji Qasim (Deceased) through L.Rs v. Syed Rahim Shah 1999 MLD 1014; Ghulam Nabi and another v. T. Ismail 2000 MLD 186; Inam Ahmed and another v. Hakimuddin and another 2000 CLC 1140; Muhammad Yakoob v. Mst. Zaibunnisa and 2 others 2009 CLC 177; Shafiq-ud-Din and others v. Mst. Shahida Ghazala and others 2000 CLC Note 29; Nizar Noor and others v. Ameer Ali and others and 2020 CLC 254 Hakim Ali v. Muhammad Salim and aother 1992 SCMR 46 ref.

Zayyad Khan Abbasi and Ch. Tariq Yousuf for Petitioner.

Mahmooda Suleman and Muhammad Rizwan Naich for Respondent No. 1.

Nemo for Respondents Nos. 2 and 3.

Date of hearing: 25th January, 2025.

Order

Muhammad Faisal Kamal Alam, J.---Through this Petition, learned Counsel for the Petitioner has challenged the Judgments dated 05.03.2020 and 16.11.2019 passed by the learned Appellate Court and Rent Controller, deciding the Eviction Application of Respondent No.1, directing the Petitioner to vacate the Premises-Shop No.1, at Plot No.603, Main Road, PIB Colony, Karachi the Demised Premises, on the ground of committing default in payment of rent.

1. Messrs Zayyad Khan Abbasi and Ch. Tariq Yousuf, Advocates for the Petitioner have argued the matter at length and stated that the concurrent findings result of misreading of evidence and misinterpretation of the provisions of the relevant Law, viz. the Sindh Rented Premises Ordinance, 1979-the Rent Law; in particular, Sections 10 and 15 [2] (ii), inter alia, concerning the time period of sixty days to pay rents, if, there is no tenancy agreement; stated that the Rent Application is filed with mala fide intention and that is why personal bona fide need of Respondent No.l was discarded. The Legal Team of Petitioner has cited the following Case Law to augment their arguments.

i) 2001 SCMR 1888

[Hirjibhai Behrana Dar-e-Meher through Attorney v.Mesars Bombay Steel Works, Partnership Firm, through Partner]

ii) 1992 SCMR 46

[Hakim Ali v. Muhammad Salim and another]

ii) 1997 MLD 98 [Karachi]

[Sher Afgan v. Shaikh Anjum Iqbal]

iv) 2022 SCMR 55

[Mushtaq-ul-Aarifin and others v. Mumtaz Muhammad and others]

v) PLD 2007 SC 460

[Sh. Fateh Muhammad v. Muhammad Adil and others]

vi) 2016 CLC Note 128

[Ijaz Ahmed Khan v. Jahanzeb Khan and others]

vii) 2019 YLR 1967

[Nasir Akhtar v. Sher Alam)

viii) 2017 YLR 2276 [Lahore]

[Abdul Rehman and others v. Ghulam Fatima and others]

ix) PLD 2012 Sindh 92

[Ilyas Ahmed v. Muhammad Munir and 10 others]

(x) 1995 SCMR 330 1

[Sir E.H. Jaffar and Sons Ltd. v. Sultan Karam Ali and others]

xi) 2017 CLC 625 [Sindh)

[Naeem Noor Muhammad alias Naeem Cyehwala)

1. The above arguments are refuted by M/s. Mahmooda Suleman and Muhammad Rizwan Naich, learned Advocates for Respondent No.1 (Landlord). They stated that findings of both the Fora are based on a proper appraisal of evidence, which cannot be set-aside in writ jurisdiction. The Legal Team of Respondent No.1 has cited the following Case Law.

i) PLD 1982 SC 465

[Allah Din v. Habib]

ii) 1989 CLC 662 [Karachil

[Tajammal Hussain Shah v. Mst. Taj Aslam]

iii) 1994 MLD 955 (Karachi)

[Abdul Rasheed v. Hanifur Rahman]

iv) 1994 SCMR 1507 (2)

[Muhammad Subhan and another v. Mst. Bilquis Begum through Legal Heirs and 3 others]

(v) 1997 CLC 216 [Karachi]

[Abdul Mateen v. Muhammad Hussain (late)]

vi) 1999 MLD 1014

[Haji Qasim (Deceased) through L.Rs v. Syed Rahim Shah)

vii) 2000 MLD 186

[Ghulam Nabi and another v. T. Ismail]

viii) 2000 CLC 1140 [Karachi]

[Inam Ahmed and another v. Hakimuddin and another]

ix) 2009 CLC 177 [Karachi]

[Muhammad Yakoob v. Mst. Záibunnisa and 2 others]

x) 2020 CLC Note 29

[Shafiq-ud-Din and others v. Mst. Shahida Ghazala and others]

xi) 2020 CLC 254 [Sindh]

[Nizar Noor and others v. Ameer Ali and others]

xii) 1992 SCMR 46

[Hakim Ali v. Muhammad Salim and another]

1. Arguments heard and Record perused.

2. The above argument of the Petitioner's Legal Team has been considered by the learned Rent Controller in the Impugned Order and he disagreed with the same, on the basis of the evidence adduced by both the Petitioner and Respondent.

3. Interestingly, the Petitioner was given further opportunity to lead the evidence at the Appellate stage, inter alia, to produce the Postal Receipt of the Money Order through which he sent the rents of the four months, from July, 2014 onwards; that is, the period in which the Petitioner is allegedly committed default.

4. The Petitioner in his evidence has admitted that he had sent the rent for four months, that is, July, August, September and October, 2014, through Money Order in the month of October, 2014; admitted that as per agreement, he "was bound to pay monthly rent in advance latest by 5th of each calendar month".

5. It has come on record that earlier also, the Petitioner had defaulted in payment of rent from 1st July 2005 till 31 December 2011, which was paid/cleared subsequently in installments; although, this fact is not the subject dispute of the present proceeding, but shows the conduct of the Petitioner.

2025 M L D 1976

[Sindh]

Before Muhammad Saleem Jessar, J

Mst. Shazia Mehmood---Applicant

Versus

The State and others---Respondents

Criminal Misc. Application No. 40 of 2021, decided on 16th August, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 173 & 190(3)---Penal Code (XLV of 1860), Ss.376 & 337-F(i)---Judicial Magistrate accepted the report submitted by police in terms of S.173, Cr.P.C---Validity---Admittedly, the applicant had impugned order dated 07.05.2020 whereby Magistrate having jurisdiction had accepted the report/challan submitted by the Investigating Officer under S.173, Cr.P.C and then submitted case papers to the Court of Session as required by S.190(3), Cr.P.C.---Court of Session being ultimate Court of trial had taken cognizance of the offence by instituting it as Sessions Case and later had assigned the same to Addl. Sessions Judge (Trial Court) where it was pending for trial---Moreover, the Trial Court had also framed charge against the accused/respondent on 11.07.2020 and the case was now fixed for recording evidence of the parties---Hence, the impugned order had not only been acted upon but had attained finality, thereby the forum had also been changed/created---Thus, in view of said legal position, the application in hand had become infructuous---Application being devoid of merits as well as legal status, was dismissed.

Qari Muhammad Rafique v. Additional Inspector General of Police (Inv.), Punjab and others 2014 SCMR 1499 rel.

Ameet Kumar for Applicant/Complainant.

Ms. Amna Ansari, Addl. Prosecutor General, Sindh for the State.

Abdul Latif Shaikh for Respondents.

Date of hearing: 16th August, 2024.

Order

Muhammad Saleem Jessar, J.---Through instant application, applicant/complainant has called in question order dated 07.05.2020 passed by learned 1st Judicial Magistrate, Karachi (South) whereby report filed by the police in terms of Section 173, Cr.P.C was accepted. Since, the offence punishable to Sections 376 and 337-F(i), P.P.C are exclusively triable by the Court of Session, therefore, learned Magistrate, after accepting challan, submitted case papers to the Court of Session being ultimate Court of the trial where it has been instituted. Later, it has been assigned to learned 3rd Addl. Sessions Judge, Karachi (South) vide Sessions Case No.1101 of 2020 (re-The State v. Habib Bawa and others) Hence, instant application has been maintained.

1. Learned counsel for the applicant submits that respondents Nos.4 to 6 were nominated by the applicant in his FIR as an accused; however, the police have submitted charge sheet against respondent No.4 Habib Bawa, only, while remaining were let off, therefore, Magistrate concerned did not take cognizance against them, which constrained the applicant to maintain instant application. Learned counsel further argues though the names of respondents/accused were mentioned in the FIR with specific role but the police have let them off by placing their names in column No.2 of the challan; hence, the Magistrate was competent to take cognizance against those whose names were placed in column No.2 of the challan as required by subsection 190(i), Cr.P.C; however, he did not take cognizance nor joined them in the case as an accused. He; however, prays that by setting aside impugned order, instant application may be granted. Besides, he prays that case may be re-investigated as the first I.O had failed to conduct proper investigation.

2. Learned Addl. P.G, Sindh appearing for the State, opposes the application and submits that the impugned order has been acted upon; besides, ultimate Court of trial has taken cognizance, therefore, application in hand has become infructuous. As far as prayer for re-investigation of the case is concerned, she adds that at this belated stage particularly when the trial Court has framed charge against the accused/respondents, it is not maintainable.

3. Learned counsel for the respondents No.4 to 6 submits that as far as question of re-investigation is concerned, challan has been submitted before the Court having jurisdiction, therefore, at this belated stage, prayer so made for re-investigation, is unwarranted by the law. In support of his contention, learned counsel places reliance upon the case of Qari Muhammad Rafique v. Additional Inspector General of Police (INV), Punjab and others (2014 SCMR 1499).

4. Heard arguments, record perused. Admittedly, the applicant has impugned order dated 07.05.2020 whereby learned Magistrate having jurisdiction had accepted the report/challan submitted by the I.O under Section 173, Cr.P.C and then submitted case papers to the Court of Sessions as required by Section 190(3), Cr.P.C. The Court of Sessions being ultimate Court of the trial, has taken cognizance of the offence by instituting it as Sessions Case No.1101 of 2020 (re-State v. Habib Bawa and others) later has assigned the same to 3rd Addl. Sessions Judge, Karachi-South (trial Court) where it is pending for trial. Moreover, the trial Court has also framed charge against the accused/respondent on 11.07.2020 and the case is now fixed for recording evidence of the parties. In case, after recording evidence of the complainant, if he deposes or implicates the respondents Nos.5 and 6 with their role as per FIR, then provisions of Section 193, Cr.P.C would become operative. Since, the Magistrate after accepting report under Section 173, Cr.P.C, sent the case papers to the Court of Session being ultimate Court of the trial, where charge against respondent(s)/accused has also been framed; hence, the impugned order has not only been acted upon but has attained finality, thereby the forum has also been changed/created.

2025 M L D 1984

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

Aijaz Ahmed Bangulani---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-584 of 2024, decided on 25th March, 2025.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302(b), 337-H(2), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Bail, dismissal of---Allegations against the petitioner-accused were that he along with 04 others while armed with weapons entered the house of complainant and committed murder of complainant's brother by making fires upon him---Undeniably, the applicant was nominated in the promptly lodged FIR with specific role of causing firearm injury to deceased---Offence with which the applicant stood charged carried capital punishment and bail could not be granted to an accused who had been shown involved in such a heinous crime---Witnesses had categorically implicated the applicant in their respective 161, Cr.P.C statements---As far contention that the applicant was found innocent and was let-off by the Investigating Officer during investigation, however, such opinion of police was not accepted by the Magistrate and once he had been joined as an accused, the best course for him was to proceed with the trial instead of pressing for grant of bail---Even otherwise, deeper appreciation was not permissible at bail stage---From tentative assessment of material available on record, it appeared that sufficient material was available on the record, which connected the applicant with the commission of alleged offence, which entailed capital punishment---No case for bail was made out, in circumstances---Consequently, bail application was dismissed.

Sohail Waqar alias Sohaila v. The State 2017 SCMR 325 2017 SCMR 325 rel.

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

----S.497---Bail---Tentative assessment---Scope---Observations made in the bail order are based on tentative assessment of the material placed on record, which should not influence the trial Court, in any manner, during the trial.

Muhammad Afzal Jagirani for Applicant.

Nazeer Ahmed Bhangwar, D.P.G for the State.

Ali Raza Pathan for the Complainant.

Date of hearing: 25th March, 2025.

Order

Muhammad Saleem Jessar, J.---Through this application, applicant Aijaz Ali Banglani seeks his release on post arrest bail in Crime No. 139 of 2022, registered at P.S A-Section, Thul, for offences under Sections 302, 337-H(2), 148, 149, P.P.C. Per investigation, the applicant was arrested on 31.07.2023 and after completion of formalities the challan against him as well as others has been submitted, which is now pending for trial before the Court of Additional Sessions Judge, Thul (trial Court) vide Sessions Case No.212/2023, re-The State v. Gul Meer & others. The applicant filed bail plea before the Court below which was declined vide order dated 01.11.2023; hence this application has been maintained.

1. The facts of the prosecution case, in brief, are that on 10.10.2022, at 10.00 p.m., the present applicant Aijaz Ahmed Banglani along with 04 others, being armed with T.T. Pistols, entered the house of complainant Sadam Hussain Banglani situated near Village Jumo Dakhan Soomro, Taluka Thul and committed murder of complainant's brother Saindad alias Sheesho by making fires upon him. Hence, such FIR was lodged by the complainant on 12.10.2022.

2. Learned counsel for the applicant argues that though the applicant is nominated in the FIR with specific role of causing firearm injuries to complainant's brother Saindad alias Sheesho; however, was let-of by the police during investigation and his name was placed in column No.2 of the challan Such report in terms of Section 173, Cr.P.C was filed before the Civil Judge and Judicial Magistrate concerned, who did not concur with the police opinion and by taking cognizance joined him as accused. He, therefore, submits that the prosecution itself has dented its own case by letting of the applicant during investigation; hence, case against him requires further enquiry. As far role attributed to the applicant is concerned, learned Counsel submits that no seat of injury has been shown in the FIR and therefore, it is yet to be determined by the trial Court at the time of trial and prays for bail.

3. On the other hand, learned D.P.G. opposes the bail application on the ground that the applicant is nominated in the FIR with specific role of causing firearm injury to deceased and the offence with which he is charged carries capital punishment, therefore, no case for bail is made out. As far the contention of learned Counsel for the applicant that the applicant was let-of during investigation, learned DPG submits that police opinion is not binding upon the Courts and the offence with which the applicant has been charged is triable by the Court of Sessions, therefore, this ground is not helpful for the accused at bail stage; however, it can be adjudicated at the time of trial; hence, opposes the bail application.

2025 M L D 1996

[Sindh (Hyderabad Bench)]

Before Mahmood A. Khan, J

Akhund Haji Ali Muhammad through legal heirs and others---Applicants

Versus

Syed Shoukat Ali Shah through legal heirs and others---Respondents

R.A No. 137 of 2014, decided on 7th March, 2025.

(a) Islamic law---

----Right of pre-emption---Whether inheritable or not---Right of preemption will run with the land and is not personal for the purposes of its enforceability in a Court of law---In other words, the right of pre-emption is to be personal to a preemptor until a decree is passed in his favour and, during that interregnum, said right is neither transferable nor in heritable---In such a situation if the preemptor dies before obtaining a decree in his favour in the Trial Court or the appellate or Revisional Court, his right of preemption shall remain exclusively personal and shall not survive to his heirs---But no sooner a decree is passed in favour of the pre-emptor than the right becomes a proprietary one and is capable of not only being transferred but also inheritable as well.

Muhammad Yousaf alias Yousaf Ali v. Talib Hussain 2012 SCMR 1185 Noor and others v.Mst. Sattan through Legal Representatives and others PLD 2013 Lah. 30; Maqsood Ahmed and others v. Member Board of Revenue Punjab Lahore and others 2007 SCMR 399 and Fateh Khan v. Boze Mir PLD 1991 SC 782 rel.

(b) Islamic law---

----Pre-emption suit---Possession through pre-emption---Sale price, determination of--- Appellants had acquired the subject property against whom and the other respondents, the respondent No. 1, initiated proceedings for claiming his right of pre-emption---Said proceedings were decreed by the Trial Court which was upheld by the first appellate Court---Validity---In the present case, record showed that the Trial Court had preferred to keep the price as was up in 1987 which could never be entertained as inflation was an ever visible element and the amount required to be deposited in year 2013 could not by any stretch of imagination be considered as adjustable amount that was paid in 1987---Revision was allowed, in circumstances.

(c) Islamic Law---

----Pre-emption suit---Possession through pre-emption---Right of pre-emption---Talb-i-Muwathibat not proved---Appellants had acquired the subject property against whom and the other respondents, the respondent No. 1, initiated proceedings for claiming his right of pre-emption---Said proceedings were decreed by the Trial Court which was upheld by the first appellate Court---Validity---Record showed that a witness said to have been present at the time of first Talb though had died, but the claimant of the pre-emption preferred never to bring any secondary evidence in that regard---In the cross-examination, the appellant and the seller both had stated that no first Talab was made and irrespective of the contentions raised in the written statement, which were apparently never confronted to the witness, the material in record did not show that the respondent No.1 was able to prove that the first Talb was ever made---In the said circumstances the decree of preemption was not available---Revision was allowed, in circumstances.

Imdad Ali Memon for Applicants.

Barrister Jawad Ahmed Qureshi for Respondents Nos. 1 and 2.

Date of hearing: 7th March, 2025.

Judgment

Mahmood A. Khan, J.--- In this revision application, the last judgment passed by the appellate Court as well as trial Court has been impugned in the proceedings of Civil Appeal No.59 of 2013 and F.C Suit No.31 of 1983, wherein the applicants are the persons who have acquired the subject property against whom and the other respondents, the respondent No.1 initiated proceedings for claiming his right of preemption. The said proceedings were decreed by the learned trial Court which was up-held where-after approach at the appellate stage as well as to this Court was made and thereafter to the Honourable Supreme Court leave was granted by order dated 02.04.2010. The matter was finally heard on 16.05.2013, when it was remanded and apparently the remand order required apart from the questions of grant of leave referred above (as the Honourable Supreme Court had preferred not to reply to the same) along with the points i.e. the decree is to be passed in terms of Order XXII Rule 14 C.P.C and to question whether the right of preemptor after his death survived or not to be decided by the trial Court as well as appellate Court.

1. It also bears from the record that the original decree in the matter had not provided the date of deposit of the amount after the matter having been remanded the learned trial Court decreed the suit at the same amount as earlier considering that the appellant has enjoyed the benefit of availing possession although discussed the inflation of prices and the original price not being available. Whereas the learned appellate Court had preferred not to discuss the forgiving points as referred above nor discussed the element of price. It also bears from the record that the amount required by the decree was deposited on 17.08.2013. It has also come on record that the persons claiming preemption right had expired on 22.07.2002.

2. On the earlier date, I had specifically called upon the learned counsel(s) for the assistance as to the preemption right liable for inheritance as under Muslim Law such right is not open to inheritance. Learned counsel for the applicants had relied upon the following authorities in this regard and has further contended that the question of witness at the first call is also left to be answered which has not been considered by the Courts below, whereas in respect of inheritable right learned counsel has contended that such right not being open is not available. Learned counsel in this regard has relied upon the case of Muhammad Yousaf alias Yousaf Ali v. Talib Hussain reported as [2012 SCMR page 1185).

3. Learned counsel for the respondent No.1 however, contended that the right of inheritance is available and in this regard he has referred to the case of Noor and others v. Mst. Sattan through Legal Representatives and others reported as [PLD 2013 Lahore 30), Maqsood Ahmed and others v. Member Board of Revenue Punjab Lahore and others reported as [2007 SCMR 399] and Fateh Khan v. Boze Mir reported as [PLD 1991 SC 782) and contended that once the decree has been obtained the right is to continue. In respect of the quoted authority of Noor and others v. Sattan through Legal Representatives and others, perhaps the typo has occurred as the case of Arshad Iqbal through LRs v. Abdul Qayyum Khan Babar is written as 1990 CLC page 1883 which ought to have been 1183, wherein it has been held that once a decree has been obtained the legal heirs are liable to obtain benefit. Learned counsel has also placed reliance upon Para 239 of Muhammad Law by Mullahi, claiming that in some conditions it is available. He has also contended that the trial Court in the original has considered that the admission of the seller as to offer made in his written statement Para 5 thereof the cross-examination and evidence irrespective to the statement in deviation thereof coming in the chief no cross-examination was required along with evidence to prove otherwise.

2025 M L D 1

[Lahore]

Before Ch. Muhammad Iqbal and Ahmad Nadeem Arshad, JJ

Asghar Ali---Appellant

Versus

Muhammad Asghar---Respondent

Regular First Appeal No. 28132 of 2023, heard on 3rd October, 2024.

(a) Malicious prosecution---

---Pre-requites---Appellant initiated litigation against the respondent on account of illegal allotment of government land (Charagah) and ultimately was declared unsuccessful---Respondent filed a suit for damages for malicious prosecution against the appellant, which was partially decreed by the Trial Court---Validity---Institution of criminal or civil proceeding for an improper purpose and without probable cause is not justifiable---Person who claims for compensation on account of malicious prosecution, must also establish the connection between the reasonable and probable cause and the malice---For the purposes of bringing a claim for malicious prosecution the requirements of "absence of reasonable and probable cause" and "malice" are separate requirements although they may be twined---Every prosecution/ inquiry which ends in a clean chit for the opponent will not per-se entitle the opponent to file a suit for compensation---Existence of malice itself is not sufficient to prove malicious prosecution but should be accompanied by proof of absence of reasonable and probable cause and the malice should be proved affirmatively---Revenue hierarchy from time to time issued notifications that the 'Charagah' lands had expressly been excluded from every grant, thus, any alienation or grant of proprietary rights thereof were not in consonance with the Government policy---District Collector, Mandi Bahauddin, was not competent to allot Charagah's land under the policy without obtaining permission from the Board of Revenue, so, the order for allotment of land to the respondent under Lambardari grant was without lawful authority and was rightly cancelled and it was also very much clear that the appellant had rightly pointed out regarding wrong allotment of land to the respondent under Lambardari grant and his act was without any malice, thus, the appellant filed the appeal with a reasonable and probable cause and the proceedings initiated against the respondent was without any malice---Appeal was allowed, in circumstances.

Subedar (Retd) Fazle Rahim v. Rab Nawaz 1999 SCMR 700; Hicks v. Faulkner (1878) 8 QBD 167; Province of West Bangal and others v. S.M. Faruque and others PLD 1959 Dacca 268; Abdul Rasheed v. State Bank of Pakistan PLD 1970 Karachi 344 and Abdul Rauf v. Abdul Razzak and another PLD 1994 SC 476 rel.

(b) Malicious prosecution---

---"Reasonable and probable cause"---Meaning---It means an honest belief in the guilt of the accused based on a full conviction founded upon reasonable grounds of the existence of circumstances, which assuming them to be true would reasonably lead any ordinary prudent man and cautious man placed in the position of the accuser to the conclusion that such person charged was probably guilty of the crime imputed.

Hicks v. Faulkner (1878) 8 QBD 167 rel.

(c) Malicious prosecution---

---Word "malice"---Meaning---Malice means the presence of some improper and wrongful motive that is to say, some motive other than desire to bring to justice a person whom the prosecutor honestly believes to be guilty.

(d) Malicious prosecution---

---Word 'malicious prosecution'---Definition stated.

Muhammad Yousaf v. Abdul Qayuum PLD 2016 SC 478 and Ghulam Hussain and another v. Muhammad Rafique and 6 others 2015 MLD 1583 rel.

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

----Arts. 72, 117 & 120---Document---Proof---Producing document in the statement of counsel---Legality---Respondent brought on record the documents through the statement of his counsel, which had no value in the eye of law because mere exhibition of the same was not required rather the same had to be proved and brought on record either by the parties themselves in their depositions on oath or through any of their witness while appearing in the witness box so as to have them subjected to cross-examination---Submission of such documents through statement of counsel without oath could not be appreciated and could not be considered in evidence.

Manzoor Hussain (deceased) through L.Rs., v. Misri Khan PLD 2020 SC 749; Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others PLD 2021 SC 715 and Rustam and others v. Jehangir (Deceased) through L.Rs 2023 SCMR 730 rel.

Mushtaq Ahmad Mohal and Amina Rasool for the Appellant.

Muhammad Shahid Tasawar Rao for Respondent.

Date of hearing: 3rd October, 2024.

Judgment

Ahmad Nadeem Arshad, J.---Through this Regular First Appeal, filed under Section 96 of the Code of Civil Procedure, 1908, the appellant called in question the judgment and decree dated 23.01.2023, whereby, the learned trial Court partially decreed the respondent's suit for recovery of damages on the basis of malicious prosecution.

1. The brief but essential facts of this appeal are that the plaintiff (herein after referred to as 'the respondent') instituted a suit on 26.04.2012 for recovery of Rs.53,924,500/- as damages for malicious prosecution against the defendant (herein after referred to as 'the appellant') with the contention that he is lambardar of Chak No.8-Younis-abad Tehsil Malakwal District Mandi Bahauddin; that he belongs to a respectable family having good reputation in the area; that the Government of Punjab allotted him land measuring 12 1/2 acres under the Punjab Government Lambardari Scheme vide order dated 20.03.2009 of District Officer (Revenue) Mandi Bahauddin; that the appellant has political rivalry who without any reason only to tease and blackmail him preferred an appeal before Executive District Officer (Revenue) Mandi Bahauddin for the cancellation of above said allotted land which was dismissed on 24.04.2010 due to non-prosecution; that the said appeal was restored but again dismissed on merits vide order dated 20.07.2010; that the appellant filed a revision petition before Member Board of Revenue Punjab Lahore wherein matter was remanded vide order dated 27.04.2011; that he filed a Review Petition against the said order which was allowed vide order dated 28.09.2011; that the appellant initiated all these proceedings i.e. preferring of appeal as well as revision petitions against the respondent dishonestly, with mala fide intention as well as due to mal-practices; that he has to suffer mental and physical torture and spent a huge amount in shape of engaging counsel to defend the said litigations; that he also suffer loss to his agricultural crops and his reputation was also badly effected in the area, so he is entitled to recover Rs.88,500/- as fee of counsel, travelling expenses Rs.131,000/-, mental retardation and damages to reputation Rs.5,00,00,000/-, loss of crops Rs.37,05,000/- total Rs.53,924,500/- as damages for malicious prosecution.

In response, the appellant appeared before the learned trial Court and filed contesting written statement on 13.03.2015 by raising preliminary objections such as the respondent has no cause of action to institute the suit; that he has not come to the Court with clean hands; that the ingredients of defamation are missing, so the suit is liable to be dismissed; that the suit is false and was instituted only to harass and black mail him, so the same is liable to be dismissed with special costs. While replying on facts it was submitted that the land was wrongly allotted to the respondent because the land was reserved for "Charagah" which cannot be allotted to the respondent under Lambardari scheme; that there was no political grudge and he initiated the proceedings with bona fide intention for the welfare of the peoples of the area and to protect the State land. He prayed for dismissal of the suit with cost.

1. Out of divergent pleading of the parties, the learned trial Court vide order dated 08.04.2016 framed following issues.

ISSUES:

1. Whether the plaintiff is entitled for recovery of Rs.53,924,500/- from defendant as damages for mental agony, defamation and cost of litigation due to malicious prosecutions of defendant/OPP.

2. Whether the plaintiff has no cause of action to file this suit? OPD.

3. Whether the plaintiff has not come to the court with clean hands? OPD.

4. Whether the suit of the plaintiff is false, frivolous and the same is liable to be dismissed? OPD.

5. Relief.

The parties were invited to produce their respective evidence. The respondent himself appeared as PW-1 and also got examined Muhammad Zafar as PW-2 and Noor Ahmad as PW-3. The respondent also brought on record 26 documents as Exh.P-1 to Exh.P-24, Exh.P-24/1 and Exh.P-25 including 07 documents as Mark-P.1 to Mark-P.7. In rebuttal the appellant himself appeared as DW-1 and produced only one document as Exh.D-1. Upon conclusion of the trial and after providing opportunity of hearing the learned trial Court partially decreed the suit vide judgment and decree dated 31.05.2016 and awarded Rs.75000/- to the respondent as damages for malicious prosecution. Being aggrieved, the appellant preferred an appeal and this Court vide order dated 02.02.2022 with the concurrence of the parties set aside the judgment and decree dated 31.05.2016 and the matter was remanded to the learned trial Court for its decision afresh. After remand, the learned trial Court, while providing opportunity of hearing partially decreed the suit vide judgment and decree dated 23.01.2023 in the following terms: -

"In view of my issue wise findings, the suit of plaintiff is hereby partially decreed and he is held entitled to recover Rs.(50,000) as cost of proceedings and Rs.(50,000) as expenses of travelling etc from defendant (in total Rs.1,00,000). Parties will bear their own costs."

Being dissatisfied, the appellant preferred instant appeal.

1. We have heard learned counsel for the parties at full length and have also perused the record of the learned trial Court with their able assistance.

2. In order to prove his case, the respondent himself appeared as PW-1 and deposed that he is resident of Chak No.8-Younisabad and belonged to a landlord family and also enjoying good reputation; that he is also lambardar of the said village; that Government of the Punjab allotted him 12 1/2 acres land under Lambardari scheme ; that the appellant has political rivalry with him who without any reason only to tease and harass him preferred an appeal before E.D.O.R for the cancellation of above mentioned land as well as to cause damage his reputation and to cause him monitory loss; that he appeared before the said Court, engaged a lawyer; that said appeal was dismissed due to non-prosecution; that said appeal was restored and again dismissed on merits; that the appellant only to tease and harass him filed a revision petition before Member Board of Revenue Lahore which was also dismissed; that he also filed a review petition through his counsel which was allowed vide order dated 28.09.2011; that due to this dishonest litigation he faced difficulties and remained mentally upset and also spent a huge amount on the litigation. He also described the details of damages faced by him due to this litigation. During cross-examination he admitted that the appellant was also a land-owner. He also admitted that except the appellant another person also moved an application to the effect that the land was wrongly allotted to him. He admitted that writ petition of other objectors is pending before Hon'ble High Court. He also admitted that the possession of the said land was not delivered to him; however, voluntasily said that on 28.05.2014 the possession was given to him. He further admitted that the possession was withdrawn vide order of the DCO dated 04.06.2014. He denied the suggestion that due to said litigation he has not suffered any loss. The respondent also got examined Muhammad Zafar son of Ata Muhammad as PW-2. He also deposed in line with the respondent. During cross-examination he admitted that the respondent has not participated in any election. He further admitted that the appellant is also resident of Chak No.8. He denied the suggestion that the appellant initiated the proceedings against the respondent honestly. He admitted that the possession was withdrawn by the order of D.C.O. Noor Ahmad son of Ghulam Muhammad appeared as PW-3. He also corroborated the statements of PW-1 and PW-2. However, during cross-examination he admitted that the appellant is also gentleman. He showed his ignorance that many other persons also moved application against the respondent which are pending before Hon'ble High Court.

3. In rebuttal, Asghar Ali appellant appeared as DW-1 and deposed that he has no political rivalry against the respondent; that he moved the appeal upon the asking the inhabitants of the locality only for the welfare of the peoples and protection of state land; that due to this litigation the respondent has not suffered any loss; that the land allotted to the respondent is a "Charagah"; that he moved the application against the respondent honestly without any ill will or motive; that one Ghulam Muhammad also initiated proceedings against the respondent. During cross-examination he admitted that the respondent is lambardar of Chak No.8 and Chak Doddan. He admitted that the land measuring 12 1/2 acres was allotted to the respondent but possession was not given. He also deposed that the land in disputed was reserved for common "Charagah". He admitted that he also moved an application for his appointment as lambardar. He further admitted that he has no link with the land allotted to the respondent rather the same is in the welfare of the inhabitants of the area. He denied the suggestion that he has any political rivalry with the respondent. He also denied the suggestion that the respondent faced any loss with regard to his health, crops or reputation due to said litigation.

4. The suit in hand was instituted by the respondent seeking recovery of Rs.53,924,500/- on account of malicious prosecution. In the case of "Muhammad Akram v. Farman Bibi" (PLD 1990 SC 28), the august Supreme Court of Pakistan has laid down certain principles for the grant or refusal of damages on account of malicious prosecution. The first two of these conditions are required for the issue of maintainability whereas the remaining are to be proved for success and the said conditions must exist conjointly. These conditions are as under:-

(i) that the plaintiff was prosecuted by the defendant;

(ii) that the prosecution ended in plaintiff's favour;

(iii) that the defendant acted without reasonable and probable cause;

(iv) that the defendant was actuated by malice;

(v) that the proceedings had interfered with plaintiff's liberty and had also affected his reputation and finally

(vi) that the plaintiff had suffered damage.

This precedent has further been reiterated invariably in case of "Niaz and others v. Abdul Sattar and others" (PLD 2006 SC 432).

8. In order to comprehend the concept of malicious prosecution, it would be appropriate to go behind its meaning and definition. The term 'malicious prosecution' is defined in the 11th Edition of Black's Law Dictionary in the following manner:

"The institution of a criminal or civil proceeding for an improper purpose and without probable cause. The tort requires proof of four element's (1) the initiation or continuation of a lawsuit; (2) lack of probable cause for the lawsuits. initiation; (3) malice; and (4) favourable termination of the original lawsuit.

A judicial proceeding, instituted by one person against another from wrongful or improper motives, and without probable cause to sustain it. It is usually called a malicious prosecution; and an action for damages for being subjected to such a suit is called an action for malicious prosecution. In strictness, the prosecution might be malicious, that is, brought from lawful motives, although founded on good cause. But it is well established that unless want of probable cause and malice occur no damages are recoverable. However, blameworthy was the prosecutor's motives, he cannot be cast in damages if there was probable cause for the complaint he made. Hence, the term usually imports a causeless as well as an ill intended prosecution. It commonly, but not necessarily, means a prosecution on some charge of crime."

In a case reported as "Muhammad Yousaf v. Abdul Qayyum" (PLD 2016 SC 478), the apex Court of the country has defined that "Malicious Prosecution" is a tort which provides redress to those who have been prosecuted "without reasonable cause" and with 'malice'. Malicious prosecution is an action instituted with intention of injuring the other and without probable cause.

The Division Bench of this Court in a case "Ghulam Hussain and another v. Muhammad Rafique and 06 others" (2015 MLD 1583) while interpreting "Malicious Prosecution" observed that "Malicious Prosecution" is the malicious institution of unsuccessful criminal proceedings against another without reasonable or probable cause. This tort balances competing principles, namely freedom that every person should have in bringing criminals to justice and the need for restraining false accusations against innocent persons. Malicious prosecution is an abuse of the process of the court by wrongfully setting the law in motion on a criminal charge.

No doubt every person in the society has a right to set in motion Governmental and Judicial machinery for protection of his rights, but such person should not infringe the corresponding rights of others by instituting improper legal proceedings in order to harass them by unjustifiable litigation. Meaning thereby the institution of a criminal or civil proceeding for an improper purpose and without probable cause is not justifiable.

1. The person who claimed for compensation on account of malicious prosecution must also establish the connection between the reasonable and probable cause and the malice. For the purposes of bringing a claim for malicious prosecution the requirements of "absence of reasonable and probable cause" and 'malice' were separate requirements although they may be entwined. The proof of absence of 'reasonable and probable cause' must co-exist alongside 'malice'. It is commonplace that in order to succeed in an action for malicious prosecution the plaintiff must prove both that the defendant was activated by malice and that he had no reasonable and probable cause for prosecution. It is also by now a settled law that every prosecution/ inquiry which ends in the clearing of opponent will not per-se entitle the opponent to file a suit for compensation. Successful proceedings initiated under this law required that the original proceedings must have been malicious and without cause.

In a case titled "Subedar (Retd) Fazle Rahim v. Rab Nawaz" (1999 SCMR 700) the Hon'ble Supreme Court observed as under:-

"Mere fact that prosecution instituted by the defendant against the plaintiff ultimately failed cannot expose the former to the charge of malicious prosecution unless it is proved by the plaintiff that the prosecution was instituted without any reasonable and probable cause and it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect."

10. "Reasonable and Probable cause" means an honest belief in the guilt of the accused based on a full conviction founded upon reasonable grounds, of the existence of circumstances, which assuming them to be true, would reasonably lead any ordinary prudent man and cautious man placed in the position of the accuser to the conclusion that such person charged was probably guilty of the crime imputed. As laid down in Hicks v. Faulkner (1878) 8 QBD 167 and there must be:

(i) An honest belief of the accuser in the guilt of the accused;

(ii) Such belief must be based on an honest conviction of the existence of the circumstances which led the accuser;

(iii) Such secondly mentioned belief as to existence of the circumstances must be based upon reasonable grounds that is such grounds, as would lead any fairly cautious man in the defendant's situation to belief so;

(iv) The circumstances so believed and relied on by the accused must be such as amount to a reasonable ground for belief in the guilt of the accused.

The element of probable and reasonable cause has been defined in case titled "Province of West Bangal and others v. S.M. Faruque and others" (PLD 1959 Dacca 268) in the following words:-

"The law on the subject is well-settled. It is stated in Clerk and Lindsel on Torts, 9th Edition, p.662, that an individual should not be harassed by legal proceedings improperly instituted against him. It is the right of every one to put the law in motion if he does so with the honest intention of protecting his own or public interest. But it is an abuse of that right to proceed maliciously and without reasonable and probable cause for anticipating success. Hence, the question is: What is meant by "reasonable and probable cause". "Reasonable and probable cause" means a genuine belief based on reasonable grounds that the proceedings are justified."

1. The term 'malice' has been elaborated and defined in the authoritative judgment report as "Abdul Rasheed v. State Bank of Pakistan" (PLD 1970 Karachi 344). The operative Para No.7 is relevant and for ready reference is reproduced hereunder: -

"7. The term "malice", in a prosecution of the nature which is before me, has been held not to be spite or hatred against an individual but the 'malus animus' and as denoting the working of improper and indirect motives. The proper motive for a prosecution is the desire to secure the ends of justice. It should, therefore, be shown that the prosecution was not actuated by this desire but by his personal feelings-See Mitchell v. Jenkins ((1833) 5 B & Ad 588); Pike v. Waldrum ((1352) 1 Lloyd's Rep.431) and Stevens v. Midland Counties Ry. ((1854) 10 Ex.352). Further, malice should be proved by the plaintiff affirmatively:- Abrath v. N.A.Ry. ((1886) 11 A.C.247). Malice may sometime be inferred from absence of reasonable and probable cause, but this rule has no general application and there may be cases where it would be appropriate not to infer malice from unreasonableness. Further, if reasonable and probable cause is proved, the question of malice becomes irrelevant, and also defects of want of reasonable and probable cause cannot be supplied by evidence of malice-See Turner v. Ambler ((1847) 10 Q B 352); Mitchell v. Jenkins; Brown v. Hawkes ((1891) 2 Q B 718) and Herniman v. Smith ((1938) A.C 305). It would be proper here to quote the following observations of Denning. L.J. (as he then was) in Tempest v. Snowden ((1952) 1 K B 130) "Even though a prosecutor is actuated by the most express malice, nevertheless he is not liable so long as there was reasonable and probable cause for the prosecution." The same rule has been applied by the courts in India and Pakistan. Several decisions on this point were brought to my notice by Mr. Fazeel. The first case on this point is the decision of the High Court, Lahore in Abdul Shakoor v. Lipton & CO. (AIR 1924 Lah.1) where it was held that in suits for malicious prosecution, proof of the existence of malice itself is not sufficient but should be accompanied by proof of absence of reasonable and probable cause. The Lahore High Court reiterated this view in Nur Khan v. Jiwandas (AIR 1927 Lah. 120) and Gobind Ram v. Kaju Ram (Air 1939 Lah. 504). The same view prevailed with the High Court of Madras in V.t. Srinivasa Thathachariar v. P. Thiruvenkatachariar (AIR 1932 Mad 601). This view also found approval of the Judicial Committee of the Privy Council in Balbhaddar Singh v. Badri Sah (AIR 1926 PC 46) and in Raja Braid Sunder Deb and others v. Bamdeb Das and others (AIR 1944 PC 1) in which last case it was further observed that malice cannot be inferred from the anger of the persecutor."

In other words "Malice" means the presence of some improper and wrongful motive that is to say, some motive other than desire to bring to justice a person whom the prosecutor honestly believes to be guilty.

1. The existence of malicious itself is not sufficient to prove malicious prosecution but should be accompanied by proof of absence of reasonable and probable cause and the malice should be proved affirmatively. In a case titled "Abdul Rauf v. Abdul Razzak and another" (PLD 1994 SC 476) it was held as under: -

"It is necessary that the malice should be proved affirmatively".

1. In the instant case admittedly the appellant preferred an appeal against the respondent contending therein that the land measuring 12 1/2 acres allotted to the respondent under Lambardari grant is a wrong allotment because the same land is reserved for "Charagah" and not available for any permanent allotment. Though his appeal as well as revision petition were dismissed but vide order dated 02.06.2014 passed by the District Collector, Mandi Bahauddin the land allotted to the respondent under Lambardari Scheme was cancelled on the ground that the land in dispute was not included in any scheduled land, so the land being a 'Charagah' was not liable to be allotted to any person. It was further mentioned in the said order that the possession given to the lambardar was also illegal, so the District Collector directed the Assistant Collector, Malakwal to obtained vacant possession of the land which was vacated/released and in this regard Rapt No. 374 dated 05.06.2014 was entered in the register of Rapt Roznamcha Waqiati.

2. It is also pertinent to mention here that the respondent assailed the order of District Collector dated 02.06.2014 in Constitutional Petition bearing No.17614 of 2014 titled "Muhammad Asghar v. District Collector Mandi Bahauddin etc." In the said case it was reported that the department has already resumed the state land on 02.06.2014 and entire proceedings under Sections 32 and 34 of the Colonization of Government Lands Act, 1912 have been completed and since 02.06.2014 the possession of the suit land is with the Government, therefore, the said Constitutional Petition was dismissed being not maintainable vide order of this Court dated 07.04.2017.

3. It is pertinent to mention here that from perusal of different Notifications issued by the Revenue hierarchy from time to time it is obvious that the 'Charagah' lands have expressly been excluded from every grant, hence, its any alienation or grant of proprietary rights thereof are not inconsonance with the policy. Moreover, it is also an admitted fact that the 'Charagah' land cannot be converted into state land for its onward allotment against any sort of claim and shall not be used for any other purpose except with the prior permission of the Board of Revenue. Change of character of the 'Charagah' land was subservient to the manifestly described wider scope of public purpose. Admittedly the Charagah land was allotted to the respondent under Notification dated 17.01.2006 and 22.10.2007 against Lambardari Grants without changing its status and describing the public purposes. From perusal of notification dated 17.01.2006 shows that against Lambardari Grants the Colony Department has shown its willing to grant the state land on lease free of charge in the colony Districts in the Punjab along with other incentives, whereas, 'Charagah Land' does not fall under the state land amenable to any allotment under the above said notification rather the same is beyond the jurisdiction of the subordinate hierarchy of Board of Revenue. Moreover, under Temporary Cultivation Lease Scheme and other Schemes, the 'Charagah' land is expressly excluded from every grant of allotment, so the order for allotment of 'Charagah' land passed by the District Officer (Revenue) Mandi Bahauddin was illegal and against the polices and also against the intention of the legislators who have formulated 'Charagah' policy for the welfare of the public-at-large as well as the residents of the village. As the District Collector Mandi Bahauddin was not competent to allot Charagah's land under the policy without obtaining permission from the Board of Revenue, so, the order for allotment of land to the respondent under Lambardari grant is without lawful authority and was rightly cancelled and it is also very much clear that the appellant has rightly pointed out regarding wrong allotment of land to the respondent under Lambardari grant and his act was without any malice. In these circumstances, the appellant filed the appeal with a reasonable and probable cause and the proceedings initiated against the respondent is without any malice.

4. Moreover, the respondent failed to produce on record any medical prescription showing that he suffered any mental or physical torture due to above said litigation. He has also failed to bring on record any documents showing that he has spent a huge amount upon the litigation as expenses and that his reputation was damaged badly. Moreover, the respondent has not brought on record any proof with regard to his previous political rivalry with the appellant. Rather he himself knowingly got allotted the land of Charagah under the Lambardari scheme in connivance with the revenue officials.

5. It is matter of record that on 27.05.2016 learned counsel for the respondent got recorded his statement without oath and exhibited documents i.e. Exh.P-1 to Exh.P-25 as well as seven documents as Mark-P-1 to Mark-P.7. The respondent brought on record the documents through the statement of his learned counsel, which has no value in the eye of law because mere exhibition of the same is not required rather the same has to be proved and brought on record either by the parties themselves in their depositions on oath or through any of their witness while appearing in the witness box so as to have been subject to cross-examination. Submission of such documents through statement of learned counsel without oath cannot be appreciated and cannot be considered in evidence. Reliance is placed on "Manzoor Hussain (deceased) through L.Rs., v. Misri Khan" (PLD 2020 SC 749) and "Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others" (PLD 2021 SC 715), wherein it has been held that:-

"35. Keeping in view the factual position as to the absence of the requisite certificate on the said certificate on the said certified copies of the foreign documents and their production in evidence in statement of the counsel without providing an opportunity to the respondents to test their authenticity, it would be safe to conclude that the alleged certified copies of the foreign document tendered in evidence did not cross the legal threshold of "admissibility" and "proof", as mandated under clause (5) of Article 89 of the Qanun-e-Shahadat....."

Further reliance in this regard can safely be placed on judgment reported as "Rustam and others v. Jehangir (Deceased) through L.Rs." (2023 SCMR 730), wherein it has been held as under: -

"As regards the other two documents i.e. mutation No.1836 (Exh.D-9) and mutation No.1837 (Exh.D-8), it is suffice to say that according to principle settled by this court in the cases reported as Mst. Hameeda Begum and others v. Mst. Irshad Begum and others (2007 SCMR 996), Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others (PLD 2010 SC 604) and Province of the Punjab through Collector, Sheikhupura and others v. Syed Ghazanfar Ali Shah and others (2017 SCMR 172) the document should be produced in the evidence by the party itself and a fair opportunity should be given to the opposite party to cross-examination the same, as such, the said two documents produced by the defendants counsel in his statement could not be taken into consideration."

2025 M L D 21

[Lahore]

Before Masud Abid Naqvi, J

Riaz Ahmad and 3 others---Appellants

Versus

Secretary to Government of the punjab and 2 others---Respondents

F.A.O. No. 29323 of 2021, heard on 11th March, 2024.

Punjab Waqf Properties Ordinance (V of 1979)---

----S.11---Transfer of Property Act (IV of 1882), S.105---Lease---Essential features---Requirements of perpetual lease, non-fulfillment of---Jurisdiction of Auqaf Department to take over the control and management of waqf property by notification---Application filed by the appellant against the said notification---Refusal of application---Contention of the appellant was that the property in dispute was leased out to original lessee, who transferred the same to the appellant through sale deeds, thus, the lease was perpetual and the Waqf Department had no authority to take over the control and management of the disputed property---Validity---In Mark-C/register Patta Dar Dawami maintained by Improvement Trust Kasur, words "Milqiyat Patta Dar Dawami" were written and land was described as "Ghair Mumkin Nungli Saray Qabaristan" allocated for outsider 'Zaireen' and graveyard 'Peer Jungli Wala' as per the record, which clearly indicated the intention of authorities about the use of land, thus, there remained no doubt that the lease was neither perpetual lease in favour of original les see nor transferable and could only be used for religious purposes---Essential features of lease are the transfer of interest to enjoy property with exclusive possession by the transfer or to the transferee for certain time or in perpetuity for consideration of price paid or promised etc.---Neither in application under S.11 of the Punjab Waqf Properties Ordinance, 1979, nor during the recording of examination-in-chief of witnesses, any consideration either paid or promised to be paid by the original lessee or subsequent lease holders was argued/pleaded/deposed which was a basic requirement of lease---One of the appellant/applicant appeared as AW-1 and produced private witness as AW-2 while rest of the two AWs were government officials who supported the contents of application in examination-in-chief but in cross-examination, both the witnesses neither had the exact knowledge about the ownership of original lessee on the disputed land nor the terms of perpetual lease---Appeal was dismissed, in circumstances.

Auqaf Department through Chief Administrator Auqaf, Punjab Lahore v. Secretary, Ministry of Religious Zakat, Ushar and Minorities Affairs Government of Pakistan, Islamabad and 3 others 2009 SCMR 210; Chief Administrator Auqaf and others v. Diwan Sheikh Taj-ud-Din and others PLD 2012 SC 897; Chief Administrator Auqaf v. Allah Bakhsh (decd) through LRs and another 2011 SCMR 235; Muhammad Hussain v. Chief Administrator Auqaf, Punjab, Lahore and 2 others 2009 YLR 911 and Mueen-ud-Din and 8 others v. Administrator General of Auqaf, Pakistan, Islamabad and another PLD 2007 Lah. 583 ref.

Government of Sindh and others v. Muhammad Shafi and others PLD 2015 SC 380 rel.

Muhammad Saeed Sheikh for Appellants.

Muhammad Usman Arif, along with Rana Ehsan-ul-Haq, District Manager, Auqaf Department, Kasur for Respondents Nos. 1 and 2.

Rana Ghulam Sarwar, Ch. Muhammad Jawad Yaqub, Addl. A.G., Punjab along with Rana Zafar, Deputy Commissioner, Muhammad Jaffar, ADC (R) Kasur, Mirza Anayat, Superintendent and Muhammad Mansha Patwari for Respondent No. 3.

Date of hearing: 11th March, 2024.

Judgment

Masud Abid naqvi, J.---Brief facts necessary for the adjudication of this lis are that the appellants/applicants filed an application under Section 11 of Punjab Waqf Properties Ordinance, 1979 before the learned District Court with the averments that disputed land was leased out to Syed Hussain Shah as "Patta Dawami" and the disputed land was sold to the appellants through different sale deeds. The appellants/applicants constructed buildings on the disputed land and are owners in possession of disputed land. Aggrieved from Notification dated 20.01.2010, issued by District Manager, Auqaf, Kasur wherein the land was declared as Auqaf's land, the appellants/applicants filed an application seeking declaration that disputed land is not a Waqf Land. The respondents filed replies to the application and raised legal as well as factual objections. Issues were framed and contesting parties led their respective oral as well as documentary evidence. After hearing the arguments advanced by both the parties, the learned District Court vide order and decree dated 10.03.2021 dismissed the application of appellants/applicants. Feeling aggrieved, the appellants/applicants preferred instant appeal and challenged the validity of the impugned order and decree passed by the learned District Court.

1. Learned counsel for the appellants argues that appellants are lessee of Central Government and Auqaf Department cannot claim the land/ properties purchased by the appellants through sale deeds and infact sale deeds were/are just transfer of lease holding rights from Syed Hussain Shah who was perpetual lessee and in support of his arguments has also relied on cases reported as Auqaf Department through Chief Administrator Auqaf, Punjab Lahore v. Secretary, Ministry of Religious Zakat, Ushar and Minorities Affairs Government of Pakistan, Islamabad and 3 others (2009 SCMR 210), Chief Administrator Auqaf and others v. Diwan Sheikh Taj-ud-Din and others (PLD 2012 Supreme Court 897), Chief Administrator Auqaf v. Allah Bakhsh (decd) through LRs and another (2011 SCMR 235), Muhammad Hussain v. Chief Administrator Auqaf, Punjab, Lahore and 2 others (2009 YLR 911 (Lahore) and Mueen-ud-Din and 8 others v. Administrator General of Auqaf, Pakistan, Islamabad and another (PLD 2007 (Lahore) 583). While learned counsel for Auqaf Department argues that sale deeds in favour of the appellants do not confer any ownership rights to the appellants and sale transactions were simply result of fraud committed by the appellants in connivance with officials and land in dispute is "", attached with Shrine of Hazrat Baba Bhullay Shah. Further argues that only Auqaf Department has claim on the disputed land/properties and neither the Central Government nor Provincial Government is claiming the Auqaf land and under Section 7 of Ordinance, Chief Administrator Auqaf has the authority to take over waqf property by a notification. Waqf property is duly defined in Section 2 (e) of the Punjab Waqf Properties Ordinance, 1979. Learned Addl. Advocate General has also supported the claim of the Auqaf Department and has relied on plethora of judgments including the case of Government of Sindh and others v. Muhammad Shafi and others (PLD 2015 SC 380).

2. I have heard the arguments of learned counsel for the contesting parties as well as the learned law officers and perused the available record as well as the impugned order and decree.

3. On 20.02.2024, learned counsel for the appellants recorded his statement before this Court which is reproduced hereunder;

"Learned counsel for the appellants states that the predecessor- in-interest of the appellants namely Shah Hussain was a lessee of Central Government and the sale deeds executed in favour of the appellants were simply a transfer of the lease holding rights to the appellants and the predecessor-in-interest of the appellants was a perpetual lessee to the extent of 04 kanals 18 marlas and 445 Sqr, Ft…."

There is a clear deviation in stance taken by the appellants/ applicants from posing themselves as owners in possession of buildings on the disputed land originally taken in plaint to holders of lease rights and the appellants are also claiming the lessee of Central Government. Although, only in Mark-C/register patta dar dawami maintained by Improvement Trust Kasur, words are written and by heavily relying on Mark-C, learned counsel for appellants/applicants argues that disputed land was perpetually leased out to original lessee i.e. Syed Hussain Shah by Improvement Trust Kasur and is not attached to shrine of Hazrat Baba Bhullay Shah as waqf land. Now question arises that whether there exists a perpetual lease in favour of original lessee i.e. Syed Hussain Shah or not and for ascertaining and adjudging this question if a particular lease is perpetuity or otherwise, the Hon'ble Supreme Court of Pakistan in a case reported as Government of Sindh and others v. Muhammad Shafi and others (PLD 2015 SC 380) held that:-

After the enforcement of the two enactments referred to above, however, the question of determination of whether a lease is one in perpetuity or not stands simplified. Section 17 of the Registration Act ibid mandates certain instruments to be compulsorily registerable and subsection (d) of section 17 provides in the list of such documents "a lease of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent." The effect of non-registration of such instruments is provided by Section 49 of the Registration Act in the manner: -

"49. Effect of non-registration of documents required to be registered.-No document required to be registered under this Act or under any earlier law providing for or relating to registration of documents shall-

(a) Operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest whether vested or contingent, or in immovable property, or

(b) Confer any power to adopt, unless it has been registered."

Similarly it is clear from Section 107 of TPA that a lease of any property beyond one year could only be effected by a registered instrument (note:-subject to the exemption qua other leases orally made coupled with delivery of possession). This is the express and unequivocal mandate of the law. It is settled principle of law that whether law requires an act to be done in a particular manner, it has to be done accordingly and not otherwise. At this point, we may also add that if an act is done in violation of law, the same shall have no legal value and sanctity, especially when the conditions/circumstances which may render such an act invalid have been expressly and positively specified in law (see section 49 ibid)………..

2025 M L D 31

[Lahore]

Before Ch. Muhammad Iqbal, J

Muhammad Naeem, Advocate and 3 others---Petitioners

Versus

The Member (Judicial-ii), Board of Revenue Punjab, Lahore 12 and others---Respondents

Writ Petition No. 59198 of 2024, decided on 30th September, 2024.

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

----Ss.135, 135A & 141---Disposal of questions as to title in the property to be partitioned---Powers of the revenue hierarchy---Scope---Application for partition of agricultural land in a joint khata was ordered to be decided by the revenue hierarchy---Petitioners challenged the proceedings on the application for partition by the revenue officials during the pendency of civil suit---Validity---Punjab Land Revenue Act, 1967 (Act), is a special law which deals with the matters pertaining to the rights in the agricultural land and S. 135A clearly directs the Revenue Officer to immediately start the partition proceeding seven if any application is submitted by the co-owners or not and also to decide the said matter expeditiously---After amendment in S.141 of the Act through the Punjab Land Revenue (Amendment) Act, 2015, in respect of the partition between the parties at the time of incorporation of in-heritance mutation, if the parties/co-sharers agree for the scheme of private partition then the Revenue Officer shall affirm the scheme otherwise he shall immediately commence the proceedings of partition of the joint holding and complete the same within thirty days---If any question of title in the holding arises during the partition proceedings, the Revenue Officer under S.141 of the Act is fully competent to decide such issue after hearing the parties and the decision of Civil Court is not required in that regard---Under S.141 of the Act if a question of title in the holding is raised in the partition proceedings, the Revenue Officer shall inquire into the substance of such question and decide the matter after hearing the parties, whereas, in the petitioners' case, the title of the suit land was not disputed between the parties rather petitioners claimed that private settlement had already been arrived at between the parties as per S.135-A of the Act, thus, the Revenue Officer had jurisdiction to adjudicate the matter regarding some private settlement in respect of the joint property---High Court in view of the verdict of the Supreme Court of Pakistan found that the petitioners were trying to linger on the matter on frivolous and unwarranted grounds---Constitutional petition was dismissed, in circumstances.

Syed Ghazanfar Ali Shah v. Hassan Bokhari and others 2024 SCMR 154 rel.

Iqbal Ahmed Dhudhi for the Petitioners.

Order

Ch. Muhammad Iqbal, J.---Through this constitutional petition, the petitioners have challenged the validity of the order dated 23.07.2024 passed by the Member (Judicial-II), Board of Revenue, Punjab who dismissed Review Petition No.401 of 2023 of the petitioners filed in ROR No.2980/2022.

1. Brief facts of the case as stated by the learned counsel for the petitioners are that respondent No.5/Muhammad Imtiaz filed an application for partition of joint Khata measuring 213-Kanals 17-Marlas situated in Mouza Burj Khurd, Tehsil and District Kasur against the petitioners and Muhammad Ishaq etc. and similarly another application for partition was also filed against the petitioners regarding land measuring 169-Kanals of Mouza Burj Khurd, Tehsil and District Kasur. On the request of the petitioner, the Naib Tehsildar adjourned sine die the proceedings due to pendency of the civil suit vide separate orders dated 15.02.2020. Against the above order, respondent No.5 filed two applications for review which were also adjourned sine die by the AC-I, Kasur vide order dated 08.05.2021. Respondent No.5 challenged the above said orders before the Addl. Deputy Commissioner (Revenue), Kasur who while accepting the said petitions vide order dated 03.11.2020 directed the Naib Tehsildar/AC-I to decide the review applications as per law within one month. Petitioners challenged the said order through an appeal which was dismissed by the Addl. Commissioner (Consolidation), Lahore Division, Lahore vide order dated 17.10.2022. The petitioners challenged the said order through ROR No.2980/2022 which was dismissed by the Member, (Judicial-II), Board of Revenue, Punjab vide order dated 30.11.2023. Against the said order, the petitioners filed Review Application No.401/2023 on 07.12.2023 and the said application was dismissed by the Member (Judicial-II), Board of Revenue, Punjab vide order dated 23.07.2024. Hence, this writ petition.

2. Arguments heard. Record perused.

3. As the partition of agricultural land is in question and Chapter-II of the Punjab Land Revenue Act, 1967 deals with partition matters of agricultural land. Under Section 135 of the Act ibid any joint owner of agricultural land may apply to a revenue officer for partition of the joint land and separation of his share. In 2013, through an enactment the Punjab Land Revenue (Amendment) Act, 2012, Section 135-A was added whereby a modus oprandi is provided for partition that immediately after sanctioning of the inheritance mutation the revenue officer without awaiting any application from any co-owner shall serve notice on all joint owners of the land to submit an agreed scheme of private partition of the joint land and on receipt of such scheme under subsection (1), the revenue officer shall affirm the scheme according to the provisions of Section 147 of the Act ibid otherwise he shall proceed ahead the case as per law. For ready reference, Section 135A of the Act ibid is reproduced as under:-

"135-A. Partition in case of inheritance (1) Notwithstanding anything contained in section 135, immediately after the inheritance mutation has been sanctioned and without any application, the Revenue Officer shall serve notice on all joint land-owners of the holding to submit, within thirty days, a scheme of private partition agreed to by all the joint land-owners.

(2) If the scheme of private partition under subsection (1) is submitted, the Revenue Officer shall affirm the scheme in accordance with the provisions of section 147.

(3) Notwithstanding anything contained in this Act, a scheme for private partition between all the joint land-owners may include site of a town or village.

(4) If the scheme under subsection (1) is not filed within the stipulated time, the Revenue Officer shall immediately commence proceedings for the partition of the joint holding."

The Punjab Land Revenue Act, 1967 is a special law which deals with the matters pertaining to the rights in the agricultural land and the aforesaid provision [i.e. Section 135-A] clearly directs the Revenue Officer to immediately start the partition proceedings even if any application is submitted by the co-owners or not and also to decide the said matter expeditiously.

Further, under Section 141 of the Act ibid, the Revenue Officer is also competent to decide the question of the title of such land. For ready reference, Section 141 of the Act ibid is reproduced as under:-

"141. Question of title of holding - (1) If a question of title in the holding is raised in the partition proceedings, the Revenue Officer shall inquire into the substance of such question.

(2) If as a result of the inquiry, the Revenue Officer is of the opinion that the question of title raised in a partition proceedings:

(a) is well founded, he may, for reasons to be recorded, require a party specified by him to file a suit in the competent court, within such period not exceeding thirty days from the date of his order, for obtaining a decision regarding the question; or

(b) is not well founded, he shall proceed with the partition of the holding.

(3) In case the suit is filed under subsection (2), the Revenue Officer shall suspend further action on the partition proceedings till the decision of the suit and submission before him the other or decree of the Court.

(4) In case the suit is not filed within the specified period, the Revenue Officer shall proceed to decide the question of title and on that basis, the partition of the holding."

Section 141 of the Act ibid was substituted through the Punjab Land Revenue (Amendment) Act, 2015 with the following provision:-

"3. Amendment in Section 141 of Act XVII of 1967.-In the said Act, for Section 141, the following shall be substituted.

"141. Question of title of holding - If a question of title in the holding is raised in the partition proceedings, the Revenue Officer shall inquire into the substance of such question and decide the matter after hearing the parties."

Now after the aforesaid amendment in respect of the partition between the parties at the time of incorporation of inheritance mutation, if the parties/co-sharers are agreed for the scheme of private partition then the Revenue Officer shall affirm the scheme otherwise he shall immediately commence the proceedings of partition of the joint holding and complete the same within thirty days. If any question of title in the holding arises during the partition proceedings, the Revenue Officer under Section 141 of the Act ibid is fully competent to decide this issue after hearing the parties and the decision of Civil Court is not required in this regard.

2025 M L D 55

[Lahore]

Before Shahid Jamil Khan, J

Sheikh Akhtar Aziz---Appellant

Versus

Province of Punjab and others---Respondents

W.P. No. 17428 of 2023, decided on 12th December, 2023.

Specific Relief Act (I of 1877)---

----Ss.12 & 24(b)---Remaining sale consideration deposited in the Government treasury through court in a suit for specific performance instituted by the petitioner---Fraudulent withdrawal/embezzlement of such amount by a court employee without any role of the depositor/ petitioner---Petitioner claimed refund of the remaining sale consideration deposited with the Trial Court after culmination of litigation against him from the Supreme Court---Validity---Civil Court had confirmed embezzlement of the amount in question and zero involvement of the petitioner and despite observing that Provincial Government was liable to return the amount, the matter was referred to the High Court---High Court opined that if each case of similarly placed person was referred to Administrative Committee of High Court, it would cause delay in dispensation of justice and amount to keeping the affectees of such like embezzlement remediless---High Court held that if embezzled amount was deposited in Government treasury on court's direction, the same Court on an application by the claimant shall determine that whether the amount was embezzled, not paid to the party so entitled, and that the claimant had no role, direct or indirect, in the fraud and shall itself direct the Provincial Government for payment of the amount to the entitled person, within given time and the embezzled amount, if recovered thereafter, shall obviously go to the State treasury---Constitutional petition was allowed, in circumstances.

Petitioner in person.

Waseem Majeed Malik, Additional Advocate General, Punjab and Ameer Muhammad Khan, Director General, Directorate of District Judiciary for Respondents.

Date of hearing: 12th December, 2023.

Judgment

Shahid Jamil Khan, J.---Petitioner, in person, is aggrieved of not refunding an amount, which was deposited in compliance of Court's order as remaining consideration.

The petitioner filed a suit for specific performance, which was decreed initially but he failed before Lahore High Court and Supreme Court of Pakistan. On dismissal of petitioner's claim in the suit, the Apex Court upheld the direction for returning the earnest amount to the petitioner with profit at Bank rate. In compliance of the direction a cheque of Rs.10,50,000/- was issued, but was fraudulently encashed/withdrawn by the then Civil Nazar, Rana Ishtiaq Ahmad, who was dismissed from service on 15.09.2010 and died in the year 2011. The petitioner kept pursuing for return of the amount and eventually got order dated 27.07.2021 from the Civil Court, operative part of which is reproduced hereunder:-

"2. As per office report the Treasury Officer, Lahore submitted a list of amounts withdrawn by Rana Ishtiaq Ahmad/Ex-Civil Nazar, Civil Courts, Lahore in which the amount of petitioner/Sheikh Akhtar Aziz is mentioned at serial No.25 (copy of list enclosed). The amount deposited by petitioner i.e. Rs.10,50,000/- through challan form No.32-A dated 10.05.2007 was withdrawn by Rana Ishtiaq Ahmad/Ex Civil Nazar, Civil Courts, Lahore on 28.07.2007. A letter of request bearing No.1340 dated 30.10.2019 has already been issued to Hon'ble Lahore High Court, Lahore by my learned Predecessor Mr. Waqar Mansoor Baryar, Senior Civil Judge (Civil Division), Lahore with the request that the embezzlement committed by the aforesaid official i.e. Ex-Civil Nazar is loss to public exchequer, which is liable to be remedied by the Provincial Govt. through allocation of special funds for its onward disbursement to the aggrieved person.

3. Hence, petition stands disposed of. The petitioner be intimated accordingly. Office is directed to place the file on record."

[Emphasis supplied]

1. The petitioner argued that deposit of amount in the treasury, on Court's direction, is undisputed as is reflecting from the order, ibid, and was fraudulently withdrawn by the Ex Civil Nazar. He contended that petitioner had no role or concern with the fraud in question, therefore, amount is required to be returned to the petitioner after dismissal of suit for specific performance without any delay, hence this petition.

2. Learned AAG submitted that the matter has to be referred to Administrative Committee of Lahore High Court, Lahore. He produced report dated 29.03.2023 and submits that similar matter was referred by Human Rights Commission of August Supreme Court of Pakistan to Administrative Committee of Lahore High Court. Government of Punjab was directed for payment through the District and Sessions Judge, Lahore. Relevant paragraphs from the report are reproduced:-

"Thereafter, matter was placed before Administration Committee of Hon'ble Lahore High Court, Lahore and following order was received vide letter No. 8207/DDJ/MNT/Ref 14/18 dated 27.04.2019, of Hon'ble Lahore High Court, Lahore

"In adherence to the orders of the Hon'ble Chief Justice of Pakistan dated 03.05.2018 and 28.12.2018 passed in HRC Nos. 15468 P/2018 and 69570-P/2018 respectively, it was unanimously resolved that the Government of the Punjab be directed to pay an amount of Rs. 13.1 million to the legal heirs of the case through the concerned District and Sessions Judge after thorough verification. The said amount was deposited in Treasury in a Suit for Specific Performance and was withdrawn fraudulently. The Government may be informed that this may not be treated as precedent in future in any case."

Thereafter, budget of Rs. 13.1 million (13100000/-) was allocated for payment to applicant by Hon'ble Lahore High Court, Lahore vide letter No. 7294 dated 19.06.2021 (copy attached) and same was released in favour of Mst. Nabeela Saleem widow of Saleem Shahid, vide this office order bearing Endst No. 01/Others (Grant in Aid) dated 09.06.2021 Copies of relevant documents are attached."

[Emphasis supplied]

1. To verify facts of this case, a report was sought from Directorate of District Judiciary ("DDJ"), The D.G of DDJ appeared and explained the procedure adopted, earlier, for disbursement of amount to similarly placed person. He endorsed the facts of petitioner's case as recorded in order dated 27.07.2021, however, opposed the petition to the extent of any direction to the Administrative Committee, placing reliance on judgment Gul Taiz Khan Marwat v. The Registrar, Peshawar High Court, Peshawar and others (PLD 2021 Supreme Court 391).

On Court's query, he did not deny that as per report by concerned Civil Judge, recorded in order dated 27.07.2021, petitioner is also entitled to similar treatment and relief as was given to Mst. Nabeela Saleem in previous case on direction by the Administrative Committee. He, nevertheless, submits that the earlier direction or decision by Administrative Committee is not applicable to petitioner's case.

On another query, regarding responsibility to return the amount, he apprised that Civil Courts are fully under control of the Lahore High Court, but regarding financial matters it is dependent on the Provincial Government. He explained that salaries of the staff of Civil Courts are dealt with by Accountant General Punjab. Similarly, stamp duties and court fees collected through Civil Courts are deposited in State Treasury. The amount in question was also deposited in State Treasury on Court's order, which was fraudulently withdrawn by the Ex-Civil Nazir, therefore, the amount is required to be returned by the Government of Punjab.

1. Heard. Record perused.

2. August Supreme Court dealt with Nabeela Saleem's case on administrative side and referred it to the Administrative Committee of Lahore High Court. The direction by the Administrative Committee to the Provincial Government was also on administrative side. However, the procedure adopted for verification through District and Sessions Judge, discloses a fair and transparent procedure. The report, from District and Sessions Judge, confirming embezzlement of the amount and absence of any involvement by the claimant (Mst. Nabeela Saleem) was the basis for direction to Provincial Government for payment of the embezzled amount, which was paid accordingly, without any objection. It fortifies the stance of the DG that Provincial Government is liable to pay the embezzled amount, under the facts and circumstances.

3. In this case, the presiding judicial officers of the Civil Court have confirmed embezzlement of the amount in question and zero involvement of the petitioner. Despite observing that Provincial Government is liable to return the amount, the Civil Court has referred the matter to Lahore High Court.

2025 M L D 66

[Lahore]

Before Shahid Bilal Hassan, J

Muhammad Nadir Khan (deceased) through L.Rs---Petitioner

Versus

Muhammad Usama and 3 others---Respondents

Civil Revision No. 42577 of 2023, decided on 22nd July, 2023.

Contract Act (IX of 1872)---

----S.11---Civil Procedure Code (V of 1908), S.115 & O.XXXII---Persons competent to contract---Minors---Maintainability of suit without appointment of guardian-Execution of agreement to sell by a person/father on behalf of the minors without having been appointed as guardian of the minors by the court of competent jurisdiction---Legality---Minor is disqualified from entering into any contract for disposal of his property without appointment of a guardian by a Court of competent jurisdiction and if any such contract is entered the said transaction is void ab initio and does not have any binding force---Law debars filing of suits against the minors without next friend or guardian appointed by the court---Thus, suit of petitioners in the present case was not maintainable---Courts below had rightly adjudicated upon the matter in hand and had not committed any illegality or irregularity warranting interference by High Court in exercise of its revisional jurisdiction under S.115, C.P.C.---Civil Revision was dismissed in limine accordingly.

Abdul Ghani and others v. Mst. Yasmeen Khan and others 2011 SCMR 837; Yar Muhammad Khan and others v. Sajjad Abbas and others 2021 SCMR 1401; Muhammad Sarwar and others v. Hashmal Khan and others PLD 2022 SC 13; Mst. Zarsheda v. Nobat Khan PlD 2022 SC 21 and Salamat Ali and others v. Muhammad Din and others PLD 2022 SC 353 rel.

Mian Muhammad Habib for the Petitioners.

Order

Shahid Bilal Hassan, J.---Precisely, the petitioners instituted a suit for specific performance on the basis of purported agreements to sell dated 28.10.2010 and 10.01.2011 against the respondents Nos.1 to 3/defendants with regards to the suit property. On the other hand, the respondents Nos.1 and 2 instituted suit for possession with permanent injunction and recovery of rent against the present petitioners and respondent No.4. Both the parties contested the suit filed against them by submitting written statements. The learned trial Court consolidated both the suits and out of the divergent pleadings of the parties the consolidated issues were framed. Both the parties adduced their oral as well as documentary evidence. On conclusion of trial, the learned trial Court dismissed suit for specific performance of the petitioners and decreed suit for possession of the respondents Nos.1 and 2 vide impugned consolidated judgment and decree dated 18.06.2022. The petitioners being aggrieved preferred two separate appeals. The learned appellate Court vide impugned consolidated judgment and decree dated 24.05.2023 dismissed both the appeals; hence, the instant revision petition.

1. Heard.

2. There is no denial to the fact that disputed property is owned by the respondents Nos.1 and 2 who at the relevant time of purported agreements to sell were minors and respondent No.4 though was father but was not appointed as guardian of the said minors and no permission was accorded to him to sell out the property of the minors or enter into any kind of agreement on behalf of the minors by the Court of competent jurisdiction; therefore, he was not competent to enter into alleged agreements to sell on behalf of the minors. Section 11 of the Contract Act, 1872 enunciates that who may enter into contract, which reads:-

"Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject."

Meaning thereby, the minor disqualifies from entering into any contract, for disposal of his property, without appointment of a guardian by a Court of competent jurisdiction and if any such contract is entered the said transaction is void ab initio and does not have any binding force. In this regard reliance has rightly been placed on Abdul Ghani and others v. Mst. Yasmeen Khan and others (2011 SCMR 837), wherein the Apex Court of country invariably held that:-

'It is well settled by now that "any contract or transaction entered into with minor was void ab initio for minor could not give consent to create any binding contract. Principle of estoppel was also inapplicable in minor's case. Transaction reflected in specified mutation sanctioned during minority of minor female was void ab initio for being unauthorized, therefore, on basis thereof vendees named in such mutation did not acquire any right or title in land in question.'

In the said judgment it has further been held:-

'The provisions as enumerated in section 11 of the Contract Act, 1872 would make minor incompetent to enter into any contract, therefore, contract by minor was void ab initio and not merely voidable. Such contract would have no existence in the eye of law and was incapable of satisfaction or confirmation. Law forbids enforcement of such transaction even if minor were to ratify the same after attaining majority.'

The said ratio has been reiterated by the Hon'ble Supreme Court in judgment reported as Yar Muhammad Khan and others v. Sajjad Abbas and others (2021 SCMR 1401) and it has further been held that:-

'To protect minors and their interests a minor cannot enter into an agreement nor grant a power of attorney to do so. Section 11 of the Contract Act, 1872 explicitly stipulates that only those who are 'of the age of majority according to the law to which he is subject' are 'competent to contract.; the law is the Majority Act, 1875 section 3 whereof stipulates eighteen years as the age of majority.'

In this view of the matter, when the alleged agreements were entered into the respondents Nos.1 and 2 were minors and the respondent No.4 was not competent to enter into any such agreement on their behalf; therefore, the said agreements are void ab initio and on the basis of the same, no suit can be instituted as no right or title has been created in favour of the petitioners.

1. In addition to the above, the petitioners instituted the suit against the minors/respondents Nos.1 and 2 by mentioning the name of Muhammad Bashir being guardian but the said Muhammad Bashir was not arrayed as party despite the fact that purportedly he entered into agreements to sell in question with the petitioners on behalf of the minors and even the said person was not produced as witness by the petitioners so as to establish the factum of entering into alleged agreements to sell. Therefore, the learned appellate Court has rightly recorded findings that law debars filing of suits against the minors without next friend or guardian appointed by the Court and in the situation even suit of the plaintiffs/petitioners is not maintainable.

2. Apart from the above, the witnesses produced by the petitioners have not disclosed and deposed that time, day and mode of payment along with description of the amount as mentioned in the disputed agreements to sell (Ex.P1) and (Ex.P3).

3. Pursuant to above discussion, learned Courts below have rightly adjudicated upon the matter in hand and have not committed any illegality or irregularity warranting interference by this Court in exercise of revisional jurisdiction under section 115, Code of Civil Procedure, 1908. In judgments reported as Muhammad Sarwar and others v. Hashmal Khan and others (PLD 2022 Supreme Court 13) and Mst. Zarsheda v. Nobat Khan (PLD 2022 SC 21), the Apex Court of the country has candidly held:-

'There is a difference between the misreading, non-reading and misappreciation of the evidence therefore, the scope of the appellate and revisional jurisdiction must not be confused and care must be taken for interference in revisional jurisdiction only in the cases in which the order passed or a judgment rendered by a subordinate Court is found perverse or suffering from a jurisdictional error or the defect of misreading or non-reading of evidence and the conclusion drawn is contrary to law.'

2025 M L D 77

[Lahore]

Before Ch. Muhammad Iqbal and Muhammad Raza Qureshi, JJ

Afzaal Ahmed through Special Attorney---Appellant

Versus

Sadia Safdar and another---Respondents

R.F.A. No. 52942 of 2022, heard on 16th May, 2024.

(a) Malicious prosecution-

---Factors to be established by plaintiff before a decree for malicious prosecution could be awarded enumerated.

Following factors must be established by the plaintiff before a decree for malicious prosecution can be awarded to him:---

(i) that the action was actuated by malice;

(ii) that the initiator acted without reasonable and probable cause;

(iii) that the plaintiff was prosecuted by the defendant on a criminal charge;

(iv) that the prosecution terminated in favour of the plaintiff;

(v) that the proceedings had interfered with plaintiff's liberty and had also affected his/her reputation; and

(vi) that the plaintiff had suffered damages.

Mumtaz Ali Shah v. Chairman, Pakistan Telecommunication Company Ltd., H.Q., Islamabad and 6 others PLD 2002 SC 1060; Muhammad Yousaf v. Abdul Qayyum PLD 2016 SC 478; Raja Braja Sunder Deb v. Bamdeb Das AIR 1944 PC 1; Abdul Rasheed v. State Bank of Pakistan and another PLD 1970 Karachi 344; United Bank Limited and 5 others v. Raja Ghulam Hussain and 4 others 1999 SCMR 734 and Muhammad Yousaf v. Abdul Qayyum PLD 2016 SC 478 rel.

(b) Malicious prosecution---

----Pre-requisites---Malice---Mere malice alone is not enough, there must also be shown to be absence of reasonable and probable cause and it is to be proved by the plaintiff that the prosecution was initiated without any justifiable reason and it was due to malicious intention of the defendant and not with the mere intention to carry law into effect.

(c) Malicious prosecution---

---Pre-requisites---In the present case the cause of action claimed in the suit had its genesis in initiation of criminal proceedings by the respondent, but mere fact that prosecution instituted by respondent/defendant against the plaintiff ultimately failed, could not expose the former to malicious prosecution, unless it was proved by the plaintiff that the prosecution was initiated without any reasonable and probable cause and it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect.

Abdul Majeed Khan v. Tawseen Abdul Haleem and others 2012 CLD 6 and Subedar (Retd.) Fazale Rahim v. Rab Nawaz 1999 SCMR 700 rel.

(d) Malicious prosecution---

----Types of damages---Claim for damages in the case of malicious prosecution carries two facets relating to (i) general damages and (ii) special damages---General damages refer to special character, condition or circumstances which accrue from immediate, direct and approximate result of wrong complained of---Special damages follow as a natural and approximate consequence in a particular case by reason of special circumstances or condition---Appellant failed to substantiate on record through cogent and unimpeachable evidence justification for award of general damages and in that regard only examination-in-chief of witnesses was valueless---So far as special damages were concerned, for that he had to prove that all the ingredients of malicious prosecution had co-existed to establish his claim of damages which throughout he could not prove---High Court dismissed the appeal of appellant accordingly.

Abdul Rauf v. Abdul Razzak and another PLD 1994 SC 476 rel.

Muhammad Haroon Gondal for Appellant.

Usman Minhas for Respondents.

Date of hearing: 16th May, 2024.

Judgment

Muhammad Raza Qureshi, J.---This Regular First Appeal has been preferred to call into question the legality, findings and reasons contained in the impugned judgment and decree dated 22.06.2022 passed by the learned Civil Judge 1st Class, Phalia whereby suit for recovery of damages of 59,000,000/- for malicious prosecution filed by the appellant was dismissed by the learned Trial Court.

1. The facts culminating into the impugned judgment and decree emanate from the subject matter suit which was filed by the appellant against respondents Nos.1 and 2 on the ground that after giving divorce to respondent No.1, she lodged a private complaint against him titled Sadia Safdar v. Afzal Ahmad and others with frivolous allegations from which ultimately the appellant stood acquitted. As per contents of the plaint the appellant suffered from business losses for which he claimed damages for Rs.5,000,000/-, for mental agony Rs.3,500,000/-, for tarnishing reputation and defaming him Rs.50,000,000/- were claimed as damages whereas Rs.500,000/- were claimed as miscellaneous expenses. As per contents of the plaint the appellant claimed that since the respondent No.1 his ex-wife had levelled false allegations against him, therefore, the suit was also liable to be decreed against her. The suit was contested by the respondents and learned Trial Court through order dated 19.01.2021 framed as many as following four issues:-

i. Whether the plaintiff is entitled to decree for recovery as prayed for? OPP

ii. Whether the plaintiff has not come to the court with clean hands? OPD

iii. Whether the suit is false and frivolous, same should be dismissed with cost? OPD

iv. Relief.

1. After completion of trial, learned Trial Court arrived at a conclusion that the appellant had failed to prove his case and as a consequence thereof dismissed the subject matter suit.

2. According to learned counsel for the appellant the impugned judgment and decree is illegal and unlawful and same is liable to be set aside. Contends that learned Court below misread the evidence on record and failed to appreciate the fact that the appellant stood acquitted from the criminal proceedings initiated at the behest of respondent No.1. According to learned counsel the impugned judgment and decree is liable to be set aside. Learned counsel for the appellant in support of his arguments relied upon the case law cited as Mumtaz Ali Shah v. Chairman, Pakistan Telecommunication Company Ltd., H.Q., Islamabad and 6 others (PLD 2002 SC 1060) and Muhammad Yousaf v. Abdul Qayyum (PLD 2016 SC 478).

3. Conversely learned counsel for respondents submits that the appellant not only failed to substantiate his claim for damages but also failed to prove that he was maliciously prosecuted. According to learned counsel, respondent No. 1 rightly lodged a complaint against the appellant who failed to establish that initiation of such proceedings had an element of malice.

4. Arguments of learned counsel for the parties have been heard, record of appeal as well as lower Court has been perused, the pleadings of the parties have been examined and the oral as well as documentary evidence has been analyzed by us.

5. The canvass framed by the appellant by laying a challenge to the impugned judgment and decree revolves around resolution of scope and ambit of a suit for malicious prosecution. Therefore, it is important to note that in order to succeed in an action for malicious prosecution, the plaintiff must in the first instance prove (i) that the action was actuated by malice (ii) that the initiator acted without reasonable and probable cause (iii) that the plaintiff was prosecuted by the defendant on a criminal charge (iv) that the prosecution terminated in favour of the plaintiff (v) that the proceedings had interfered with plaintiff's liberty and had also affected his/her reputation, and (vi) that the plaintiff had suffered damages. To succeed in a case for malicious prosecution all these ingredients must coexist. Reliance in this regard is placed on Raja Braja Sunder Deb v. Bamdeb Das (AIR 1944 PC 1), Abdul Rasheed v. State Bank of Pakistan and another (PLD 1970 Karachi 344), United Bank Limited and 5 others v. Raja Ghulam Hussain and 4 others (1999 SCMR 734) and Muhammad Yousaf v. Abdul Qayyum (PLD 2016 SC 478). Therefore, this Court has to examine whether the test of co-existence of ingredients were satisfied by the appellant/ plaintiff.

6. While deciding this Appeal, the Court has also to strike a balance between two parties as the initiator of a criminal proceedings has freedom of action against a wrong and to set law in motion to bring criminal to justice without a fear of being prosecuted in case of being unsuccessful. In contrast the rights and protection of an innocent party who is being victimized by misuse of the process of law and possibly that is why, in the wisdom of Raja Braja Sunder Deb's case supra, the fundamental ingredient considered by Privy Council was a malicious defendant and an action without reasonable and probable cause as according to Privy Council the malice has been set to mean any wrong or indirect motive, but a prosecution is not malicious merely because it is inspired by anger. However, wrongheaded prosecutor may be if he honestly thinks that the accused has been guilty of a criminal offence he cannot be initiator of malicious prosecution. But malice alone is not enough, there must also be shown to be absence of reasonable and probable cause. It is to be proved by the plaintiff that the prosecution was initiated without any justifiable reason and it was due to malicious intention of the defendant and not with the mere intention to carry law into effect.

7. In the facts and circumstances, the merits of the case and evidence led by respective parties are to be evaluated on the touchstone of principles of law mentioned above. The appellant did not appear in the witness box and presented his two witnesses namely; Mahammad Inayat being his Special Attorney and Sarfraz Ahmad as PW-1 and PW-2 respectively. It is pertinent to mention here that both the witnesses appearing on behalf of appellant did not produce any documentary evidence and all the documents exhibited during course of arguments were adduced in statement of learned counsel for the appellant. During the cross-examination PW-1 candidly conceded that in nikahnama the appellant was mentioned as bachelor, which was contrary to the fact as in cross-examination PW-1 conceded that appellant got married thrice, however, he divorced all the wives. PW-1 also admitted that he did not produce any evidence on record with respect to abortion by respondent No.1. The plaint of the suit throughout reflected that the reason for divorcing respondent No.1 was her voluntary abortion of first child conceived by her out of wedlock of appellant and respondent No.1.

8. In witness box throughout the appellant failed to produce any document on record to substantiate that respondent No.1 got aborted her pregnancy. The perusal of private complaint reflects that the sole ground agitated by respondent No.1 to lodge a private complaint was fraudulent conduct of appellant to present himself as bachelor at the time of nikah and since upon attaining knowledge the respondent No.1 obtained divorce, therefore, she filed a private complaint. The perusal Exh.P-5 which is a judgment passed by Magistrate Section 30, Phalia reflects that the Court did not declare that complaint filed by respondent No.1 was false and frivolous rather while acquitting the appellant from the charge the appellant was given benefit of doubt due to weak evidence presented by the prosecution.

9. All these facts were duly considered by learned Court below and rightly evaluated that the co-existence of the ingredients meant to initiate malicious prosecution were not established in the facts and circumstances of the case. Co-existence of all those ingredients was a condition precedent to maintain the suit and appellant failed to prove through his witnesses any malice in initiating of private complaint against him. The perusal of evidence specially the judgment rendered by the Judicial Magistrate clearly prove one thing that the initiation of criminal proceedings against the appellant was based on reasonable or probable cause. Reliance is placed upon judgment reported as Abdul Majaeed Khan v. Tawseen Abdul Haleem and others (2012 CLD 6).

2025 M L D 87

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

Mst. Munawar Jan and 6 others---Appellants

Versus

Mst. Safaidan and 4 others---Respondents

Civil Revision No. 934-D of 2012, decided on 18th January, 2024.

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

----O.VI, R.4---Qanun-e-Shahadat (10 of 1984), Arts. 113, 117 & 120---Gift transaction---Legality---Fraud---Onus of proof---Admission as to validity of gift---Necessity to prove the transaction of gift---Facts need not to be proved---Contention of the petitioner was that respondents being beneficiaries of the gift transaction had failed to divulge details thereof in their written statement, thus, the suit had rightly been dismissed by the Trial Court---Validity---Party pleading any misrepresentation and fraud was obliged to narrate particulars to that effect---Plaint was lacking any details or particulars that how the transaction was tainted with fraud---Donor and predecessor-in-interest of the petitioners accepted the donee as lawful owner of the suit land and never challenged the gift mutation in their lifetime---Article 113 of Qanun-e-Shahadat, 1984, ordains that no fact need be proved in any proceedings which the parties thereto or their agents agree to admit at the hearing, or which before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings---Petitioner's own witness admitted qua the validity of gift, thus, there remained no necessity for the respondents to assert or lead any material to that effect---After effecting of gift mutation necessary entries were incorporated in the revenue record for the subsequent years---Civil revision was dismissed, in circumstances.

Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167; Mst. Kalsoom Begum v. Peran Ditta and others 2022 SCMR 1352 and Mst. Faheeman Begum (Deceased) through L.Rs and others v. Islam-Ud-Din (Deceased) through L.Rs and others 2023 SCMR 1402 ref.

Faqir Ali and others v. Sakina Bibi and others PLD 2022 SC 85; Noor Din (Deceased) through LRs v. Pervaiz Akhtar and others 2023 SCMR 1928; Mst. Rabia Gula and others v. Muhammad Janan and others 2022 SCMR 1009; Syed Kausar Ali Shah and others v. Syed Farhat Hussain Shah and others 2022 SCMR 1558; Principal Public School Sangota, Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Sarbiland and others 2022 SCMR 189 and Saadat Khan and others v. Shahid-ur-Rehman and others PLD 2023 SC 362 distinguished.

(b) Gift---

----Proof---Principle of acquiescence and estoppel---Scope---Gift not challenged by the donor in his lifetime---Where in his lifetime donee did not challenge the validity of gift, his successors would be precluded to throw any challenge to such transaction on the principle of acquiescence and estoppel---Gift mutation was sanctioned in the year 1962 and the donor though remained alive till 1969, but he did not challenge the gift in favour of his son/donee---Petitioners were claiming right in the suit land being successor-in-interest/another son of donor, who too remained alive till 1978, but never challenged the gift, thus, petitioner were precluded to dispute the gift mutation on the ground of estoppel.

Ghulam Abbas and others v. Mohammad Shafi through LRs and others 2016 SCMR 1403; Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299 and Jamila Khatoon and others v. Aish Muhammad and others 2011 SCMR 222 rel.

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

----S.18 & First Sched, Art.120---Specific Relief Act (I of 1877), S.42---Gift mutation---Suit for declaration challenging gift mutation on the ground of fraud---Limitation period, commencement of---Scope---Section 42 of the Specific Relief Act, 1877, (Act) ordains that 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 to such character or right, and the court may in its discretion make therein a declaration that he is so entitled---Right to sue accrues to a person against the other for declaration of his right, as to any property, when the latter denies or is interested to deny his such right---In the present case limitation started running from the date of knowledge of the donor and not the petitioners---Petitioners nowhere in their plaint asserted that their father or the grandfather (donor), who both remained alive for a considerable time after the sanctioning of gift mutation, were not aware of the same, thus, could not challenge it during their lifetime---After the incorporation of suit land in his name in furtherance of gift mutation the donee transferred part of the suit land in favour of the respondents through two mutations in the year 1981, thus, petitioners were well aware of the gift mutation right from its inception but they brought their suit in 2003, which was clearly barred by time---Civil revision was dismissed, in circumstances.

Salamat Ali and others v. Muhammad Din and others PLD 2022 SC 353 and Mst. Rabia Gula and others v. Muhammad Janan and others 2022 SCMR 1009 rel.

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

----S.115---Revisional jurisdiction---Scope---Conflict of judgment of lower courts---Preference---In the matter of giving preference to the judgments of lower courts while analyzing the same in exercise of revisional jurisdiction, preference and regard is always given to the findings of the appellate court, unless they suffer from any legal infirmity or material irregularity.

Muhammad Nawaz through L.Rs v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1 and Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398 rel.

Tanvir Iqbal for Petitioners.

Ch. Afrasiab Khan and Abdul Basit Khan Tanoli for Respondents Nos. 1 to 4.

Nemo for Respondent No. 5.

Dates of hearing: 5th and 7th December, 2023.

Judgment

Mirza Viqas Rauf, J.---This petition invokes the revisional jurisdiction of this Court as contemplated under Section 115 of the Code of Civil Procedure (V of 1908) (hereinafter referred to as "C.P.C.") against the judgment and decree dated 01st November, 2012 handed down by learned District Judge, Rawalpindi, whereby he proceeded to allow the appeal preferred by respondents Nos.1 to 4 (hereinafter referred to as "respondents") as a result setting at naught the judgment and decree dated 24th December, 2011 passed by the learned Civil Judge Class-I, Rawalpindi.

1. The proposition involved in this petition is quite common to our society. Abdul Rehman son of Khatar Khan was a big landlord in the revenue estate of Daultala Tehsil Gujar Khan District Rawalpindi. He was having two sons namely Muhammad Afsar and Muhammad Khan whereas Aksar Jan was his daughter. Abdul Rehman purportedly gifted a part of land measuring 101 Kanal 19 Marla (hereinafter referred to as "suit land") to Muhammad Khan (one of his sons) qua which mutation No.633 dated 18th September, 1962 was recorded. Abdul Rehman died in the year 1969 whereas Muhammad Khan passed away in the year 1998, who ultimately survived the "respondents". The petitioners being the successors-in-interest of Muhammad Afsar instituted a suit for declaration, separate possession through partition and injunction averring therein that their predecessor-in-interest namely Muhammad Afsar died in the year 1978 and after his death, they remained under the custody of Muhammad Khan, who however died later on. It is asserted that after demise of Muhammad Khan, the petitioners and "respondents" started living separately on the basis of family settlement, however, "respondents" refused to give half share in the "suit land" on the plea that it is not joint being gifted to their predecessor-in-interest by Abdul Rehman. On further inquiry by the petitioners it revealed on them that a gift mutation No.633 was sanctioned on 18th September, 1962 in favour of Muhammad Khan, which as per their stance was the outcome of fraud and misrepresentation having no effect upon their rights.

2. Suit was resisted by the "respondents" on multiple grounds through a written statement. On account of serious challenge on both sides as reflected in their respective pleadings, the trial court proceeded to frame multiple issues. After framing of issues both the sides produced their evidence and upon completion of the same, suit was decreed vide judgment dated 24th December, 2011. Feeling aggrieved the "respondents" preferred an appeal before the learned District Judge, Rawalpindi. The appeal was ultimately allowed by way of impugned judgment and decree.

3. Learned counsel for the petitioners contended that being the beneficiaries, it was though obligatory for the "respondents" in the first instance to plead the gift transaction but no such assertion was made in the written statement. He added that evidence can only be led with regard to a fact, which finds mention in the pleadings. Learned counsel contended that suit was mainly resisted by the "respondents" on the ground of limitation. He added that in case of fraud no limitation runs against the person, who has been defrauded. Learned counsel submitted that even otherwise the proceedings relating to sanctioning of gift mutation are tainted with material irregularities. It is contended with vehemence that gift was never pleaded and mutation by itself is not a document validating the original transaction. Learned counsel emphasized that suit was initially rightly decreed but the appellate court while forming a contra view has grossly misread the evidence. It is argued that the impugned judgment and decree is not tenable under the law. In support of his contentions, learned counsel placed reliance on Faqir Ali and others v. Sakina Bibi and others (PLD 2022 SC 85), Noor Din (Deceased) through LRs v. Pervaiz Akhtar and others (2023 SCMR 1928), Mst. Rabia Gula and others v. Muhammad Janan and others (2022 SCMR 1009), Syed Kausar Ali Shah and others v. Syed Farhat Hussain Shah and others (2022 SCMR 1558), Principal Public School Sangota, Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Sarbiland and others (2022 SCMR 189) and Saadat Khan and others v. Shahid-ur-Rehman and others (PLD 2023 SC 362).

4. Conversely, learned counsel for the "respondents" submitted that gift was validly made. He added that the petitioners on account of their conduct were precluded to institute the suit. Learned counsel submitted that in pursuance to the gift mutation necessary entries were incorporated in the revenue record and the petitioners were well aware of the same. Learned counsel emphasized that even otherwise the donor though remained alive for a considerable period but he never challenged the gift transaction. Learned counsel contended that suit was instituted by the petitioners on account of mala fide. It is also contended that fraud was though alleged but no particulars of fraud were mentioned in the plaint. Learned counsel submitted that suit was wrongly decreed by the trial court and the appellate court was fully justified to set at naught the findings of the trial court in the circumstances. In the last, learned counsel argued that suit was hopelessly barred by time. In order to supplement his contentions, learned counsel placed reliance on Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others (PLD 2014 SC 167), Mst. Kalsoom Begum v. Peran Ditta and others (2022 SCMR 1352) and Mst. Faheeman Begum (Deceased) through L.Rs and others v. Islam-ud-Din (Deceased) through L.Rs and others (2023 SCMR 1402).

5. Heard. Record perused.

6. "Suit land" (101 Kanal 19 Marla) was part of estate owned by Abdul Rehman, who was Headman of village Daultala Tehsil Gujar Khan District Rawalpindi. Abdul Rehman breathed his last on 06th January, 1969 leaving behind two sons namely Muhammad Khan and Muhammad Afsar as well as one daughter namely Aksar Jan. The petitioners are the successors-in-interest of Muhammad Afsar whereas the "respondents" are the legal heirs of Muhammad Khan. The matter in controversy stems from mutation No.633 dated 18th September, 1962 purportedly effected in favour of Muhammad Khan.

7. Before delving into the merits of the case it would be advantageous to point out certain admitted facts, which even otherwise are quite relevant for the matter in controversy. Gift mutation No.633 was sanctioned on 18th September, 1962 whereas Abdul Rehman (donor) died on 06th January, 1969. Muhammad Khan (donee) passed away on 28th December, 1998 whereas Muhammad Afsar, predecessor-in-interest of the petitioners took his last breath on 04th March, 1978. It would not be out of context to mention here that Muhammad Afsar was Sub-Inspector in police department.

8. The points for determination before this Court are;

firstly, validity of gift transaction;

secondly, effect of non-challenging of gift by the donor and;

thirdly, limitation.

1. Adverting to the first limb of controversy it is noticed that to this effect issue No.7 was framed. Being the plaintiffs, it is the claim of the petitioners that gift mutation is a product of fraud. Contrary to this the "respondents" pleaded that gift transaction was valid one. In terms of Order VI Rule 4 of the "C.P.C." a party pleading any misrepresentation or fraud is obliged to narrate particulars to that effect. When plaint is examined in this context it is clearly lacking any details or particulars that how the transaction was tainted with fraud. In order to prove their claim, the petitioners examined Muhammad Rizwan being one of the petitioners as PW1. In his statement he reiterated the facts contained in the plaint and asserted that Abdul Rehman has though never made any gift in his lifetime, but Muhammad Khan was since Headman, so in connivance with the revenue officials, he succeeded in getting the gift mutation effected in his favour. Bashir Ahmad being close relative of the petitioners as well as the "respondents" appeared as PW2. He stated that Muhammad Afsar and Muhammad Khan partitioned their property in the year 2003 and he came to know about the gift in the said year. During his cross-examination Bashir Ahmad admitted that Mst. Munawar Jan, petitioner No.1 gifted him portion of land from the share of her inherited property. He also admitted that one Muhammad Ashiq had filed a suit against Abdul Rehman and Muhammad Khan wherein he acted as special attorney on behalf of the latter and the suit was dismissed finally. He also admitted that Abdul Rehman has rightly made the gift in favour of Muhammad Khan. Though there were certain pivotal admissions in the statement of Muhammad Rizwan (PW1) as well but the statement of Bashir Ahmad (PW2) was quite fatal to the claim of the petitioners.

2. There can be no cavil that mutation by itself is not a document of title and it is only an acknowledgment of the original transaction, which has taken place prior to the incorporating/sanctioning of mutation and a person relying upon mutation has to establish the original transaction in the first instance. The facts of this case are, however, bit different. The "respondents" though did not plead the original transaction in clear words in their written statement but they while responding to para No.4 of the plaint and denying the averments of the para, asserted that the original owner Abdul Rehman made a valid gift of "suit land" in favour of Muhammad Khan through mutation No.633 attested on 18th September, 1962 whereafter the gift mutation was incorporated in the revenue record and the donee (Muhammad Khan) enjoyed the possession as well as ownership of the "suit land". They further asserted that Abdul Rehman (donor) and Muhammad Afsar, predecessor-in-interest of the petitioners accepted the donee as lawful owner of the "suit land" and never challenged the gift mutation in their lifetime.

3. Article 113 of the Qanun-e-Shahadat Order, 1984 ordains that no fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings. To the above effect when the statement of Bashir Ahmad (PW2) is analyzed, he in his cross-examination deposed as under :-

In view of admissions with regard to the validity of gift by the petitioners' own witness, there remains no necessity for the "respondents" to assert or lead any material to that effect. It clearly evinces from the record that after effecting of gift mutation necessary entries were incorporated in the revenue record for the subsequent years.

1. Coming to the question of effect of non-challenging of gift by the donor, it is noticed that Abdul Rehman survived two sons namely Muhammad Khan and Muhammad Afsar as well as one daughter namely Aksar Jan. Donor was owner of about 300 Kanal land in Daultala Tehsil Gujar Khan District Rawalpindi, however, he gifted "suit land" to his son namely Muhammad Khan. It appears that as Muhammad Afsar was in the police department, so the donor being father of Muhammad Khan (donee) opted to gift the "suit land" in his favour, so as to safeguard his rights as he was unemployed. Leaving aside this aspect it is an oft repeated principle of law that where in his lifetime donor did not challenge the validity of gift, his successors would be precluded to throw any challenge to such transaction on the principle of acquiescence and estoppel.

2. In the present case gift mutation was sanctioned on 18th September, 1962 and the donor though remained alive till 06th January, 1969 but he did not challenge the gift in favour of his son (Muhammad Khan). Furthermore the petitioners are claiming right in the "suit land" being successors-in-interest of Muhammad Afsar, who too remained alive till 04th March, 1978 but never challenged the gift. The petitioners are thus precluded to dispute the gift mutation on the ground of estoppel. Reference to this effect can be made to Ghulam Abbas and others v. Mohammad Shafi through LRs and others (2016 SCMR 1403), Muhammad Rustam and another v. Mst. Makhan Jan and others (2013 SCMR 299) and Jamila Khatoon and others v. Aish Muhammad and others (2011 SCMR 222).

3. Now attending the last point for determination, which relates to limitation, it is observed that a suit for declaration of any right as to any property, the person claiming such right has to institute the suit under Section 42 of the Specific Relief Act, 1877 and the limitation of such suit is to be regulated and governed by Article 120 of the Limitation Act, 1908. Suit was instituted by the petitioners on 30th July, 2003 challenging the validity of gift mutation on the ground of fraud asserting that the cause of action accrued to them six months before institution of the suit on claim of the respondents' that they are exclusive owners of the "suit land".

4. It is evident from the record that after the gift mutation entries were incorporated in the light thereof in the revenue record. It also evinces that after the incorporation of "suit land" in his name in furtherance of gift mutation the donee transferred portion of the "suit land" in favour of the "respondents" through mutation No.2786 dated 30th May, 1981 (Exhibit-P23). Not only this but through mutation No.2714 (Exhibit-D18) 03 Kanal 18 Marla of land was mutated in favour of the petitioners as well through gift.

5. Section 42 of the Specific Relief Act, 1877 ordains that 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 to such character or right, and the court may in its discretion make therein a declaration that he is so entitled. Section 42 of the Act ibid is reproduced below for the purpose of convenience :-

"42. Discretion of Court as to declaration of status or right.- (1) Any person entitled to any character, or any right to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief:

Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

(2) Notwithstanding anything contained in any other law for the time being in force, a suit filed under subsection (1) shall be decided by the Court within six months and the appellate court shall decide the appeal not later than ninety days, as the case may be."

From the bare perusal of the above referred provision of law it becomes crystal clear that the right to sue accrues to a person against the other for declaration of his right, as to any property, when the latter denies or is interested to deny his such right.

1. In the case of Salamat Ali and others v. Muhammad Din and others (PLD 2022 SC 353) Supreme Court of Pakistan outlined the scope of Section 42 of the Specific Relief Act, 1877 in the following words :-

"25. A suit for declaration of any right as to any property is filed under section 42 of the Specific Relief Act, 1877 ("Specific Relief Act"). Therefore, to ascertain when the right to sue accrues to a legal heir to seek a declaration of his ownership right over the property inherited by him and of his such right not to be affected by the further transfer of such property, we need to consider section 42 of the Specific Relief Act, which reads:--

42. Discretion of Court as to declaration of status or right-- 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 to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

(Emphasis added)

It becomes evident by reading the above provisions that the right to sue accrues to a person against the other for declaration of his right, as to any property, when the latter denies or is interested to deny his such right. It thus postulates two actions that cause the accrual of right to sue, to an aggrieved person: (i) actual denial of his right or (ii) apprehended or threatened denial of his right.

26. What "actions" can be termed as an "actual denial of right", and what a mere "apprehended or threatened denial of right", in the context of adverse entries recorded in the revenue record, is a question that requires consideration. Admittedly, entries in the revenue record do not create or extinguish proprietary rights. Such an entry may at most be termed as a mere "apprehended or threatened denial" of right, and not an "actual denial" of right. Accordingly, every new adverse entry in the revenue record relating to proprietary rights of a person in possession (actual or constructive) of the land regarding which the wrong entry is made, gives to such person, a fresh cause of action to institute the suit for declaration. The situation is, however, different in a case where the person in possession (actual or constructive) of the land regarding which the wrong entry is made, is ousted from such possession, besides a wrong entry in the revenue record. In such a case, the act of ousting him from the actual or constructive possession of the land, constitutes an "actual denial" of his rights, and does not remain a mere "apprehended or threatened denial". Therefore, in such a case, if the person injuriously affected by such an act of "actual denial" of his rights does not challenge the same within the prescribed limitation period, despite having knowledge thereof, then his right to do so becomes barred by law of limitation.

1. In an inheritance case, like the present one, a wrong mutation in the revenue record, as to inheritance rights does not affect the proprietary rights of a legal heir in the property, as the devolution of the ownership of the property on legal heirs takes place under the Islamic law, through inheritance immediately, without any formality including sanction of inheritance mutation. Therefore, a wrong mutation is a mere "apprehended or threatened denial" of right, not necessitating for the person aggrieved thereby to institute the suit. The position is, however, different when the co-sharer in possession of the joint property, on the basis of a wrong inheritance mutation, sells the joint property, or any part thereof exceeding his share, claiming him to be the exclusive owner thereof and transfers possession of the sold land to a third person, the purchaser. In such a circumstance, the co-sharer by his said act "actually denies" the rights of the other co-sharer, who is only in constructive possession of the same, and ousts him from such constructive possession also by transferring the possession of the sold land to a third person, the purchaser. In such circumstances, the right to sue accrues to the aggrieved co-sharer from the date of such sale, and transfer of actual possession of the sold land to the third person, the purchaser."

Reliance in this respect can also be placed on Mst. Rabia Gula and others v. Muhammad Janan and others (2022 SCMR 1009).

1. After having an overview of the principles laid down in the cases cited above, it can safely be held that limitation would start running from the date of knowledge of the donor and not the petitioners. Even otherwise the petitioners nowhere in their plaint asserted that their father or the grandfather (donor), who both remained alive for considerable time after the sanctioning of gift mutation, were not aware of the same and thus could not challenge it during their lifetime. Contrarily sufficient material is available on the record to show that the petitioners were well in knowledge of the gift mutation right from its inception but they brought their suit on 30th July, 2003, which is clearly barred by time.

2. So far judgment in the case of Faqir Ali's heavily relied by learned counsel for the petitioners is concerned, it is noticed that in the said case by way of gift mutation female members of the family were deprived from their share in inheritance of their predecessor. They instituted a suit for declaration alleging fraud and were ultimately succeeded to establish that the gift mutations were the product of fraud. In this background, Supreme Court of Pakistan observed that fraud vitiates even the most solemn transactions and any transaction that is based upon fraud is void and notwithstanding the bar of limitation. Courts would not act as helpless by stands and allow a fraud to perpetuate. Facts in the case of Noor Din (Deceased) supra were also almost the same, as such principles laid down therein are not applicable to the case at hand. In the case of Saadat Khan's above, the matter was relatable to estate of Isa Khan, who died and after his death inheritance mutation was sanctioned only in favour of his son Abdul Rehman on 23rd March, 1995, which was later on challenged in the year 2004 by Mst. Mehro and Mst. Afsro claiming themselves daughters of said Isa Khan and in this background, Supreme Court of Pakistan again observed that a suit instituted by a female legal heir for declaration of her ownership rights as to the property left by her deceased father in his inheritance, against her brother who denies her rights is thus governed by the provisions of Article 120. To decide whether such a suit is barred by limitation, the six-year period of limitation provided by Article 120 is to be counted from the time when the right to sue for declaration accrues as provided therein. The question, when the right to sue for declaration has accrued in a case, depends upon the facts and circumstances of that case, as it accrues when the defendant denies (actually) or is interested to deny (threatens) the rights of the plaintiff as per Section 42 of the Specific Relief Act, 1877. The principles laid down in the said judgment are same as were previously held in the case of Faqir Ali's supra.

3. From the facts and circumstances of the present case it is since established on the record that neither donor nor father of the petitioners challenged the gift mutation in their lifetime and the petitioners even did not assert in their plaint either of them were not aware about the gift mutation, so their suit becomes badly barred by time. Even otherwise in view of availability of material qua the fact that donee gifted some portion of land to the petitioners and they accepted the same, there remains no room to infer that they were not having knowledge of the gift. Suit was thus rightly adjudged as barred by time by the appellate court.

2025 M L D 105

[Lahore]

Before Shahid Karim, J

Sohail Nisar---Petitioner

Versus

Nadeem Nisar and others---Respondents

C.O. No. 74580 of 2023, decided on 5th April, 2024

Civil Procedure Code (V of 1908)---

----O.IX-B---Dispute between close family members---Alternative Dispute Resolution---Applicability---Parties were real bothers having joint business who approached the Court with regard to certain disputes that had arisen in connection with their business matters---High Court referred the matter to Mediator for dispute resolution---Mediation in the first instance should be the preferred mode of resolution and applies, a fortiori, to cases which involve wrangling between close family members---Such method has many obvious benefits least of all to save cost, business and personal relations---If taken under scrupulous attention of High Court and by a respectable Mediatory, such process is likely to succeed in its purpose---High Court directed the parties to present their briefs and skeleton arguments to the Mediator and exchange copies in advance---Contents of petitions and its replies would serve as briefs on behalf of the parties---High Court left procedure of mediation to be determined by Mediator so appointed who would proceed expeditiously in the matter given the sensitivity of the situation---High Court expected from the parties to approach process of mediation with fairness and an eye on the future of their company which, taken together, had given them enormous benefits over their working lifetimes---Mediator was appointed accordingly.

Faisal Zafar and another v. Siraj -ud-Din and 4 others 2024 CLD 1; Netherlands Financierings Maatschappij Voor Ontwikkelingslanden N.V. (F.M.O) v. Morgah Valley Limited and SECP PLD 2024 Lah. 3151, 2024 CLD 685 and 2024 SCMR 947 rel.

Feisal Hussain Naqvi for the Petitioner.

Shehzad A. Elahi for Respondent No. 1.

Waqqas Ahmad Mir for Respondents Nos. 2 and 2A.

Ashtar Ausaf Ali for the Applicant in C.M. No. 9 of 2024.

Wajahat Ali for the Commission.

Order

Shahid Karim, J.---Significant time has been spent on hearing oral arguments of the learned counsel for the parties. It is evident that the parties are in tension with each other on issues of recent origin. The arguments in this Court and the list of documents relied upon (which are common in some respects though varying in construction) have underscored the reasons for falling out amongst brothers regarding a business which is a family business operated through an arrangement stitched together by a loose set of rules. It is unfortunate to note that the brothers have now chosen to thrust allegations at each other and ultimately to bring their disagreements into the public domain. The reasons for this are not hard to divine. The wide margin of judgment afforded to each party has eroded over time. At the heart is the enormous sums of money involved and the gradual lack of trust which set in.

1. Inevitably, the resolution of the dispute would involve a complex set of orders to be passed. If taken to its logical end, the solution cannot be shallow or facile. In a likely scenario, the brothers may have to part ways in a commercial sense and take the route of severance of business relationship. This may involve a buy-out scheme yet the litigation may linger on for a number of years. This will have debilitating effect not only on their personal relations but, as time passes, the businesses would suffer irreparably to the detriment of both the parties.

2. The circumstances brought forth in the prefatory above led this Court to propose the resolution of disputes between parties through mediation. This method of alternate dispute resolution now finds statutory expression in Order IX-B of the Code of Civil Procedure, 1908. This paradigmatic Order was inserted by the Lahore High Court's amendment on 22.08.2018 and was the first such attempt, in my opinion, to codify the rules relating to mediation in our legal landscape. For, it is a cardinal rule of administration of justice that the courts have such powers only as are conferred by law. We cannot derive powers upon fanciful and improper notions. A Judge is constricted by rules. Therefore, if this Court is to compel the parties to mediate, it must be soundly based and have provenance in law.

3. Order IX-B provides that:

" Alternate Dispute Resolution

1. Reference to mediation. (1) Except where the Court is satisfied that there is no possibility of mediation or an intricate question of law or facts is involved, the Court shall refer the case for mediation.

(2) While referring the matter for mediation, the Court may indicate the material issues for determination through mediation.

2. Appearance of parties. Where a case is referred for mediation, the Court shall stay the proceedings for a period not exceeding thirty days and direct the parties to appear before the Mediation Centre, set up by Lahore High Court, on such date and time as the Court may specify.

3. Settlement. (1) Where the mediation proceedings are successful and the parties have arrived at an agreement, the Mediator shall cause the same to be recorded in writing, signed by the parties or their recognized agents or their pleaders and attested by two independent witnesses.

(2) The agreement shall be certified by the Mediator and transmitted forthwith, through the Administrator of the Mediation Center, to the Court.

(3) The Court shall, on receipt of the agreement, pass a decree in terms thereof unless the Court, for reasons to be recorded in writing finds that the agreement between the parties is not enforceable at law.

(4) Where settlement relates only to a part of the dispute, the Court shall pass decree or an order in terms of such settlement and proceed to adjudicate the remaining issues.

4. Failure of mediation. Where the mediation fails and no settlement is made between the parties, the Mediator shall submit a report to the Court and the Court shall proceed with the case from the stage it was referred to Mediation."

1. As the statutory wording makes clear, a court is obliged to refer a case for mediation. This is a mandatory requirement enjoined by law now and equally applies to proceedings under the Companies Act, 2017 to the extent as this Court may determine in its discretion. Reference may be made to section 6(15) of the 2017 Act, which provides that:

"(15) Save as otherwise expressly provided under this Act, the provisions of the Qanun-e-Shahadat (Order)1984 (P.O. No. 10 of 1984) and the Code of Civil Procedure, 1908 (Act V of 1908) shall not apply to the proceedings under this section except to such extent as the Court may determine in its discretion."

1. Mediation, in the first instance, should be the preferred mode of resolution and applies, a fortiori, to cases which involve wrangling between close family members. This method has many obvious benefits least of all to save cost, businesses and personal relations. If taken under the scrupulous attention of this Court and by a respectable Mediator, the process will likely succeed in its purpose.

2. Seeking footing in the statutory text, the dispute is being referred to mediation. It must be noted that the parties, too, were forthcoming to the suggestion and wholeheartedly embraced it.

3. We also have precedents for resort to this method of dispute resolution of corporate disputes. Jawad Hassan, J. of this Court has taken this route in at least two cases reported as Faisal Zafar and another v. Siraj-ud-Din and 4 others (2024 CLD 1) and Netherlands Financierings Maatschappij Voor Ontwikkelingslanden N.V. (F.M.O.) v. Morgah Valley Limited and SECP (PLD 2024 Lah. 315, 2024 CLD 685). In 2024 SCMR 947 and others. Province of Punjab and others v M/s Haroon Construction Co. and others, Supreme Court of Pakistan alluded to the process of mediation as an effective mode of disposition in the toolkit of courts.

4. Different names came up for consideration as a Mediator. The parties did not disagree on the name of Justice Mushir Alam, formerly Judge Supreme Court of Pakistan who, doubtless, preeminently qualifies for the assignment given his impressive resume and the respect that he has garnered over the years. Under the circumstances, Justice Mushir Alam is appointed as a Mediator to attempt to resolve the disputes which have arisen between the parties in respect of commercial and management issues of ATS Synthetic (Pvt.) Ltd. (respondent No.3) (ATS)

2025 M L D 114

[Lahore (Multan Bench)]

Before Asim Hafeez, J

Muhammad Akhtar Shah---Petitioner

Versus

Judge Family Court, Kot Addu and 2 others---Respondents

W.P. No. 3022 of 2023, decided on 3rd October, 2024

(a) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 5---Family Courts Act (XXXV of 1964), S.5 & Sched.---Suit for jactitation of marriage instituted by lady---Execution of valid Nikah Nama---Failure to prove---Effect---Family Court decreed the suit against the petitioner declaring alleged Nikah as void and the same (finding) was affirmed by the Appellate Court---Assertion of the petitioner was that respondent/lady renegaded from her previous position/ stand, who (lady) had filed various petitions and made statements, including statement under S.164 of Criminal Procedure Code, 1898, acknowledging her status as lawfully wedded wife of the petitioner---Validity---Record (evidence) revealed that conduct, relationship and execution of Nikiah Nama was categorically denied by respondent /lady in the plaint and as a witness---Petitioner, who alleged existence of valid marriage and sought decree of conjugal rights, utterly failed to prove conduct of marriage; and was evasive regarding sharai nikah in the written statement, and later pleaded conduct of sharai nikah, which was obviously an afterthought---Petitioner produced (got exhibited) Nikah Nama but failed to prove its execution, validity and lawfulness---Even otherwise requirements of a valid Nikah in terms of Muslim Family Laws Ordinance, 1961, were not proved---Petitioner testified that Nikah was arranged and conducted in the office of a lawyer, where 10- 12 persons were sitting, but none of whom was produced as witness---Evidence of witness of the petitioner /defendant did not inspire any confidence, who submitted affidavit( having been marked) stating against marriage between petitioner and respondent /lady, but when confronted with it, he stated that he was under pressure ; said witness was shown as representative of the bride, who admitted having acquaintance with the lady because she worked at the medical clinic of the petitioner---Said evidence substantiated allegation by respondent / lady against petitioner that latter abducted her, and the evidence of said witness had no weightage or value---No witnesses of Nikah Nama were produced---Advocate in whose chamber Nikah was allegedly solemnized was not produced---Assertion that respondent /lady submitted petitions and appeared in courts, and made statement before Magistrate, had little value in the context of allegations levelled by respondent / lady against the petitioner---Even otherwise, voluntariness and truthfulness, essential ingredients of statement under S.164 of Criminal Procedure Code, 1898, were not proved---No lawyer was produced to prove that lady had signed petitions affidavit and appeared in person before the Court---Undeniably, respondent / lady worked at a Medical Clinic, run by the petitioner---Respondent/ lady appeared as witness, who was cross-examined on the point of her affidavit and statements made but she categorically denied the same---In suit(s) for jactitation of marriage, it was ethical to consider that lady had disowned marriage and her statement, and she had denied having exercised free- will and was terrorized or put in awful fear of harm/ injury and physical abuse---Even otherwise, self-harming statements carried more authenticity, high evidentiary value and deserved more credibility and weightage, compared to the evidence of the petitioner, read in the context of the apparent motive, intending to avoid incriminating charges in criminal case which manifested tendency of misrepresenting the facts--- No interference was warranted to disturb concurrent findings and conclusions under constitutional jurisdiction, in absence of any illegality and material defect---Constitutional petition, being merit-less, was dismissed, in circumstances.

(b) Muslim Family Laws Ordinance (VIII of 1961)---

----S.5---Family Courts Act (XXXV of 1964), S. 5, Sched.---Suit for jactitation of marriage instituted by lady---Execution of valid Nikah Nama---Failure to prove---Nikah Khawan/Nikah Registrar, testimony of---Scope and effect---Family Court decreed the suit against the petitioner declaring alleged Nikah void and the same (finding) was affirmed by the Appellate Court---Assertion of the petitioner was that Nikah Khawan, appeared before the criminal court, in relevant criminal case( FIR under S.365-B of Penal Code 1860), and affirmed solemnization of Sharai Nikah between petitioner and lady (plaintiff / respondent)---Validity---Insisting of the petitioner on the statement of Nikah Khwan in criminal case had no evidentiary value, which piece of evidence was otherwise inadmissible, for failing to undergo test of confrontation---Nikah Khawan/Nikah Registrar appeared as one of the witnesses of lady /plaintiff, and he was never confronted with alleged statement before criminal court, alleging solemnizing of Sharai Nikah---Nikah Khawan otherwise testified against petitioner---Statement, not confronted to the witness, had no evidentiary value, besides otherwise attracting inadmissibility---Constitutional petition, being merit-less, was dismissed, in circumstances.

Mst. Farhat Jabeen v. Muhammad Safdar and others 2011 SCMR 1073 distinguished

Matloob Hussain v. Mst. Shahida and 2 others PLD 2006 SC 489 ref.

Sheikh Jamshaid Hayat for the Petitioner.

Ijaz Ahmad Gurmani for Respondents.

Order

Asim Hafeez, J.---Instant constitutional petition impugns concurrent decisions, in terms whereof suit for jactitation of marriage, instituted by respondent No.3, was decreed by the Family Court and same was affirmed by the Appellate Court, consequently alleged Nikah between the petitioner and respondent No.3 was declared void for all intents and purposes.

1. Facts, essential for adjudication, are that petitioner alleged marriage with respondent No.3 and brought action for restitution of conjugal rights. Conversely, respondent No.3 sought declaration against alleged claim of marriage, who alleged that she was abducted and subjected to sign documents and made statements without freewill and affording independent decision-making choice. Trial court framed issues and recorded evidence which declared marriage invalid. Petitioner remained unsuccessful before the Appellate Court.

2. Learned counsel for the petitioner emphasized that respondent No.3 renegaded from her previous position/ stand, who had filed various petitions and made statements, including statement under section 164 of Criminal Procedure Code, 1898, acknowledging her status as lawfully wedded wife of the petitioner. Submits that Nikah Khawan appeared before the criminal court, in case FIR No. 203 dated 07.06.2020 under section 365-B of Pakistan Penal Code, 1860, who affirmed solemnization of Sharai nikah between petitioner and respondent No.3.

3. Conversely, learned counsel for respondent No.3 supported concurrent decisions, hereby impugned.

4. Heard. Record perused.

2025 M L D 122

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz, J

Brigadier (Retired) Qaisar Shahzad---Petitioner

Versus

The State and another---Respondents

Criminal Misc. No. 3153-B of 2024, decided on 18th October, 2024.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 420, 468, 471, 408 & 381---Cheating and dishonestly inducing delivery of property, forged document, using as genuine a forged document, criminal breach of trust by a clerk or servant, theft by a servant or clerk from their master's property---Bail, grant of---Accusing was charged for traversing beyond his authority and executing two agreements and in pursuance thereof issued 37 cheques of equivalent amount of Rs.1,46,81,00,000/----Besides that, petitioner was further saddled with the accusations of having filed a civil suit on the basis of power of attorney, having forged signatures of plaintiff---First Information Report stood registered under multiple provisions for the attributed delinquencies of cheating, forgery and criminal breach of trust---Though initially offence under S.381, P.P.C., was also added but it was deleted during investigation---So far as, the offence under S.468, P.P.C., is concerned, its mischief is attracted when the forgery is committed for the purpose of cheating whereas S.471, P.P.C., is applicable when a forged document is used as genuine---Straightaway, it was observed that neither the agreements nor the power of attorneys (wakalatnamas) had yet been dispatched to handwriting expert for analysis---Admittedly, the agreements dated 25.10.2019 did not contain forged signatures of any person and their credentials were challenged solely on the premise that they were executed by the petitioner without any lawful authority---Beyond everything, it was noticed that the agreement dated 25.10.2019 was executed between "FS" and Brigadier "A" (Retired)---Brigadier "A" signed the document on behalf of a Joint Venture Management Committee ('JVMC')---So far as, petitioner was concerned, he simply countersigned the said agreement and was not even party to it---Though Brigadier "A" signed the said document on behalf of 'JVMC' but neither he was an accused nor witness in the case---Record showed that the civil suit with forged power of attorney of plaintiff was instituted on 21.08.2023, whereas the services of petitioner were terminated on 12.05.2020, a fact badly exposing the allegation of forgery---Offence of S.408, P.P.C., was applied for the issuance of 37 cheques in favour of "FS" but it was noticed that all these cheques pertained to the account of Bahria Town (Pvt. Ltd)---Not a single penny was withdrawn from the account of DHA, thus as a necessary consequence it could be held for the limited purposes of bail that he was having no dominion over the funds statedly disbursed in favour of "FS"---Sections 420 and 471, P.P.C., are bailable in nature and there was no concept of refusal of bail in such offences---On the contrary, though offences under Ss.408 & 468, P.P.C., are non-bailable but entail punishments upto seven years and due to that reason do not attract the prohibitory clause of S.497, Cr.P.C.---In such like offences, the rule is bail and not jail---Case of prosecution entirely hinged upon the documentary evidence, which was in the possession of the Investigating Agency, thus there was not even a remote possibility of its tampering---Report under S.173, Cr.P.C., to the extent of petitioner stood submitted in Court and petitioner was no more required for the purposes of investigation---Bail was granted to the petitioner, in circumstances.

Subhan Khan v. The State 2002 SCMR 1797; Muhammad Tanveer v. The State and another PLD 2017 SC 733; Saeed Ahmad v. The State 1996 SCMR 1132 and Tariq Bashir and 5 others v. The State PLD 1995 SC 34 rel.

Raja Inaam Ameen Minhas, C. Ehtisham-ul-Haq and Shehryar Shams for Petitioner.

Mian Imran Rahim, DPG for the State.

Irfan Ahmad Khan Niazi for the Complainant.

Order

Ch. Abdul Aziz, J.---Brigadier (Retired) Qaisar Shahzad (petitioner) seeks post arrest bail in case FIR No.255, dated 09.08.2024, registered for offences under sections 420, 468, 471, 408, 381, P.P.C., at Police Station Morgah, District Rawalpindi.

1. Succinctly stated the case of prosecution as it gleans from the crime report is to the effect that Col. (R) Makhdoom Asim Jillani (complainant) was serving in Phase-VI and VII of DHA; that accused Qaisar Shehzad remained posted in DHA from 15.07.2014 to 15.12.2016 and thereafter became CEO of Joint Venture Management Committee (JVMC); that Qaisar Shahzad being CEO of JVMC issued 37 cheques valuing Rs.1,46,8100,000/- to Zeeshan and Brothers without the permission of competent authority; that in order to coverup his corrupt practices, Qaisar Shahzad executed two bogus agreements dated 25.10.2019 for the purchase and possession of land with one Sain Inam, due to which he was terminated from the post of CEO on 12.05.2020; that thereafter the audit was conducted, whereupon Qaisar Shahzad along with Sain Inam and Zeeshan and Brothers was directed to deposit the embezzled amount in the account of DHA; that after the death of Sain Inam on 14.10.2022, Qaisar Shahzad and Zeeshan and Brothers refused to return the embezzled amount; that subsequently Qaisar Shahzad filed a civil suit titled 'Syed Naveed Ahmad v. Fazal Inam Sabir' in the court of Senior Civil Judge, Rawalpindi by filing forged power of attorney (wakalatnama) of Imran Ali Malik Advocate; that thereafter Mehmood Baloch Advocate on the instructions of Qaisar Shahzad withdrew the above mentioned case, hence, instant FIR.

2. Arguments heard, record perused.

3. It is discernible from the tentative review of record that case in hand stands registered for a deceptive transaction in which Brigadier (Retired) Qaisar Shahzad (petitioner), while posted in DHA traversed beyond his authority and executed two agreements with one Fazal Inam Sabir and in pursuance thereof issued 37 cheques of equivalent amount of Rs.1,46,81,00,000/-. Besides that, Brigadier (Retired) Qaisar Shahzad is further saddled with the accusations of having filed a civil suit titled as 'Syed Naveed Ahmad v. Fazal Inam Sabir' on the basis of power of attorney, having forged signatures of Syed Naveed Ahmad.

4. In the wake of facts mentioned above, record of the case is perused with utmost circumspection and it is noticed that the First Information Report stands registered under multiple provisions for the attributed delinquencies of cheating, forgery and criminal breach of trust. Though initially offence under section 381, P.P.C. was also added but it is informed to have been deleted during investigation.

5. So far as, the offence under Section 468, P.P.C. is concerned, its mischief is attracted when the forgery is committed for the purpose of cheating whereas Section 471, P.P.C. is applicable when a forged document is used as genuine. Straightaway, it observed that neither the agreements nor the power of attorneys (wakalatnamas) have yet been dispatched to hand writing expert for analysis. There is no need to shed light upon the point that forgery can best be determined through the report of hand writing expert but still no step in this regard has been taken by the police. Above all, it is admitted even during arguments that the agreements dated 25.10.2019 do not contain forged signatures of any person and their credentials are challenged solely on the premise that they were executed by the petitioner without any lawful authority. The forgery is defined in Section 463, P.P.C. as making of a false document with intent to cause damage, or to support a false claim. So far as "Making of a false document" is concerned it stands defined in Section 464, P.P.C. and the foregoing provision for the sake of brevity is not being recapitulated in the instant para. The learned DPG and counsel for the complainant were confronted with the question that the questioned transaction comes under which clause of Section 464, P.P.C. but none of them could give any reply rather went speechless. Beyond everything, it is noticed that the agreement dated 25.10.2019 was executed between Fazal Inam Sabir and Brigadier Arshad (Retired). It is equally important to mention here that Brigadier Arshad signed the document on behalf of Defence, Bahria, Habib Rafiq Joint Venture Management Committee (hereinafter referred as DBH JVMC). So far as, Brigadier Qaisar Shahzad (petitioner) is concerned, he simply counter signed the aforementioned agreement and was not even party to it. It is jaw droppingly observed that though Brigadier Arshad signed the aforementioned document on behalf of DBH JVMC but neither he is an accused nor witness in the case. Last but not the least, it is found evincing from record that the civil suit with forged power of attorney of Syed Naveed Ahmad was instituted on 21.08.2023, whereas the services of Brigadier Qaisar Shahzad were terminated on 12.05.2020, a fact badly exposing the allegation of forgery.

6. I have also given considered thought to the applicability of Section 408, P.P.C. in the case. The foregoing provision attracts when the criminal breach of trust is committed by a clerk or servant and it is incumbent upon the prosecution to prove two of its basic ingredients which are entrustment and misappropriation. The offence of Section 408, P.P.C. is applied for the issuance of 37 cheques in favour of Fazal Inam Sabir but it is noticed that all these cheques pertain to the account of Bahria Town (Pvt.) Ltd. It can inevitably be gathered that not a single penny was withdrawn from the account of DHA, thus as a necessary consequence it can be held for the limited purposes of bail that he was having no dominion over the funds statedly disbursed in favour of Fazal Inam Sabir.

7. It is also important to mention here that Sections 420 and 471, P.P.C. are bailable in nature and there is no concept of refusal of bail in such offences. On the contrary, though offences under sections 408 and 468, P.P.C. are non-bailable but entail punishments upto seven (07) years and due this reason do not attract the prohibitory clause of Section 497, Cr.P.C. In such like offences, the rule is bail and not the jail as is evident from the case laws reported as Tariq Bashir and 05 others v. The State (PLD 1995 SC 34), Subhan Khan v. The State (2002 SCMR 1797) and Muhammad Tanveer v. The State and another (PLD 2017 Supreme Court 733). In such like cases, bail can only be refused if there exists some exceptional ground. The Supreme Court of Pakistan in the case reported as Tariq Bashir and 05 others v. The State (PLD 1995 SC 34) elaborated the exceptional circumstances on the basis whereof the court can withhold the concession of post arrest bail even in the cases not attracting the prohibitory clause of Section 497, Cr.P.C. and the same are being reproduced hereunder:

i. if there is an apprehension of abscondance, ii. if there is an apprehension of repetition of offence;

iii. if there is an apprehension of tempering with the prosecution evidence.

In order to ascertain the existence of exceptional circumstances in the instant case for withholding the procedural relief of bail from the petitioner a question was raised that whether the petitioner is having any criminal antecedents but the answer was given in negative by the investigating officer Atif SI.

1. Lastly, I am leaned to observe that the case of prosecution entirely hinges upon the documentary evidence, which is in the possession of the investigating agency, thus there is not even a remote possibility of its tempering. In somewhat similar circumstances, the concession of post arrest bail was granted to an accused even in the offences attracting the prohibitory clause by the Supreme Court of Pakistan in case reported as 'Saeed Ahmad v. The State' (1996 SCMR 1132) with the following observations:-

2025 M L D 132

[Lahore]

Before Farooq Haider, J

Muhammad Rauf---Petitioner

Versus

The State and another---Respondents

Criminal Misc. No. 16105-B of 2024, decided on 28th June, 2024.

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

----S. 497(1), third proviso---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Statutory ground of delay in conclusion of trial---In the present case, the petitioner (accused) was arrested in the case on 30.07.2022 and sent to jail on the same day where he was confined till now i.e. for more than a period of one year and 10 months and trial of the case had not concluded---Case had been registered against the petitioner under S.489-F, P.P.C and same was not punishable with death---Statutory period for grant of bail on the ground of delay in conclusion of trial of the case was continuous detention exceeding one year as per 3rd proviso to S.497(1), Cr.P.C.---It was not disputed by the prosecutor and the complainant that petitioner was behind the bars for a continuous period exceeding one year and ten months---Perusal of the record revealed that challan report under S.173, Cr.P.C., was received in the Court on 19.11.2022, charge was framed against the accused on 20.01.2023 and prosecution witnesses were summoned for 03.02.2023, however, prosecution witnesses did not appear before the Court till 17.10.2023 inspite of summoning them through warrants of their arrest---Meaning thereby that after arrest of the petitioner on 30.07.2022, continuous period of detention of the petitioner exceeding one year lapsed without conclusion of the trial and said delay was not caused due to any act or omission of the petitioner or any other person acting on his behalf---Prosecutor and the complainant could not refer to any material to show that petitioner was a previously convicted offender for an offence punishable with death or imprisonment for life or to opine at this stage that petitioner was a hardened, desperate or dangerous criminal or was accused of an act of terrorism punishable with death or imprisonment for life---Moreover, after completion of statutory period, if any adjournment had been obtained by the accused, it did not disentitle him for grant of bail on ground of delay in conclusion of trial rather he was entitled to be released on bail as a matter of right---Therefore, a right to be released on post-arrest bail had accrued to the petitioner due to delay in conclusion of trial of the case under 3rd proviso to S.497 (1), Cr.P.C.---If case for grant of post-arrest bail on the ground of delay in conclusion of trial has been made out then bail is granted as a "right" under 3rd proviso to S.497(1), Cr.P.C.---Petition for grant of post-arrest bail on the statutory ground of delay in conclusion of trial of the case was allowed, in circumstances.

Muhammad Umer Shahzad versus The State and others 2023 SCMR 1450; Nadeem Samson v. The State and others PLD 2022 SC 112; Nadeem Samson v. The State and others PLD 2022 SC 112 and Riaz Shah v. The State 2024 YLR 1369 rel.

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

----Ss. 497 & 498---Bail---Observations of the Court---Scope---Observations made in the bail order are just tentative in nature, strictly confined to the disposal of bail petition and have no bearing upon trial of the case.

Ms. Asifa Riasat for the Petitioner.

Rana Muhammad Shafique, Deputy Prosecutor General for the State along with Muhammad Malik, A.S.I and record of the case.

Mian Shaukat Ali for Respondent No. 2/Complainant of the case.

Order

Farooq Haider, J.---Through instant petition, Muhammad Rauf (petitioner/ accused) has sought post-arrest bail in case arising out of FIR No.565/2021 dated 28.05.2021 registered under Section 489-F P.P.C. at Police Station: City Jaranwala, District: Faisalabad.

This is second petition filed by the petitioner for grant of post-arrest bail in the case before this Court whereas first petition filed by the petitioner for post-arrest bail in the case before this Court bearing Crl. Misc. No.13294-B of 2023 was dismissed on merits vide order dated: 16.03.2023 passed by this Court (copy of the order is available at Pages Nos.13-14 of the petition). Thereafter, petitioner filed Crl. Petition No.866-L of 2023 before Supreme Court of Pakistan against aforementioned order dated 16.03.2023 passed by this Court in Crl. Misc. 13294-B of 2023, which came up for hearing on 06.12.2023 and learned counsel for the petitioner contended there that right of bail on statutory ground has been accrued in favour of the petitioner, therefore, in order to file application before the trial court on this fresh ground i.e. statutory ground, he wants to withdraw the petition for the time being and same was dismissed as withdrawn (copy of the order is available at Page No.19 of this petition) and relevant portion of the order is hereby reproduced:-

"Learned counsel for the petitioner contends that during the pendency of this petition a right of bail on statutory ground has been accrued in favour of the petitioner and in order to file an application before the trial court, on this fresh ground i.e. statutory ground, he wants to withdraw this petition for the time being. He may do so. This petition is dismissed as withdrawn."

Then petitioner filed application for post arrest bail on statutory ground of delay in conclusion of trial of the case before trial court and then before learned Additional Sessions Judge, Jaranwala but same have been dismissed and now instant petition has been filed for post-arrest bail before this Court on the ground of delay in conclusion of trial of the case.

1. After hearing learned counsel for the parties, learned Deputy Prosecutor General and going through the available record with their able assistance, it has been noticed that briefly, as per Crime Report (FIR) got recorded by Mirza Shabbir Haider (complainant of the case/respondent No.2 in the petition), petitioner issued cheque of Rs.30,00,000/- to the complainant which was dishonoured on presentation by the bank. Petitioner was arrested in this case on 30.07.2022 and sent to jail on the same day where he is confined till now i.e. for more than period of one year and 10 months and trial of the case has not been concluded.

Case has been registered against the petitioner under Section 489-F, P.P.C. and same is not punishable with death, therefore, statutory period for grant of bail on the ground of delay in conclusion of trial of the case is continuous detention exceeding one year as per 3rd proviso to Section: 497(1) Cr.P.C. It is not disputed by the learned Deputy Prosecutor General and learned counsel for the complainant that petitioner is behind the bars for a continuous period exceeding one year and ten months so now question does arise that whether after his arrest, petitioner has caused any delay during the period exceeding one year in conclusion of trial of the case and in order to examine the same, attested copy of order sheet annexed with this petition from Page Nos.32-40 has been perused and perusal of the same reveals that challan report under Section 173, Cr.P.C. was received in the Court on 19.11.2022, charge was framed against the accused on 20.01.2023 and prosecution witnesses were summoned for 03.02.2023, however, prosecution witnesses did not appear before the court till 17.10.2023 inspite of summoning them through warrants of their arrest. Meaning thereby that after arrest of the petitioner on 30.07.2022, continuous period of detention of the petitioner exceeding one year lapsed without conclusion of the trial and said delay was not caused due to any act or omission of the petitioner or any other person acting on his behalf. Learned Deputy Prosecutor General and learned counsel for the complainant could not refer any material to show that petitioner is previously convicted offender for an offence punishable with death or imprisonment for life or to opine at this stage that petitioner is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life. It is also relevant to mention here that after completion of statutory period, if any adjournment has been obtained by the accused, it does not disentitle him for grant of bail on ground of delay in conclusion of trial rather he is entitled to be released on bail as a matter of right and in this regard cases of "Muhammad Umer Shahzad v. The State and others" (2023 SCMR 1450) and "Nadeem Samson v. The State and others" (PLD 2022 SC 112) can be referred and relevant portions from latter case law from its paragraphs Nos.8 to 10 are reproduced:-

"8. The scope of the 3rd proviso to section 497(1), Cr.P.C. has recently been expounded by this Court in the Shakeel Shah case, cited by the counsel for the petitioner, by examining and interpreting provisions as well as the provisions of the related 4th proviso, in detail. We, therefore, think it unnecessary to re-examine the scope of those provisos again in this case, especially when we find ourselves in agreement with what has been held in that case. What we consider appropriate to do is to recapitulate the main principles enunciated therein, as to the meaning, extent and scope of the 3rd proviso, for clear understanding of, and compliance by, all the other courts in the country in terms of Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973. They are:

(i) The purpose and object of the 3rd proviso to section 497(1), Cr.P.C. is to ensure that the trial of an accused is conducted and concluded expeditiously, and that the pre-conviction detention of an accused does not extend beyond the period of two years in cases involving an offence punishable with death, or one year in other cases;

(ii) The period of one year or two years, as the case may be, for the conclusion of the trial begins from the date of the detention of the accused in the case, not from the date when the charge is framed and trial commenced:

(iii) A statutory right to be released on bail accrues in favour of the accused if his trial is not concluded within the specified period, i.e., exceeding one year or two years as the case may be, from the date of his detention;

(iv) This statutory right of the accused to be released on bail is however, subject to exceptions: one is embodied in the 3rd proviso itself and the second is provided in the 4th proviso, which are: (a) the delay in conclusion of the trial is occasioned by an act or omission of the accused or by any other person acting on his behalf, and (b) the accused is a convicted offender for an offence punishable with death or imprisonment for life, or is in the opinion of the court a hardened, desperate or dangerous criminal, or is accused of an act of terrorism punishable with death or imprisonment for life.

(v) The act or omission on the part of the accused to delay the timely conclusion of the trial must be the result of a visible concerted effort orchestrated by the accused. Merely some adjournments sought by the counsel for the accused cannot be counted as an act or omission on behalf of the accused to delay the conclusion of the trial, unless the adjournments are sought without any sufficient cause on crucial hearings, i.e., the hearings fixed for examination or cross-examination of the prosecution witnesses, or the adjournments are repetitive reflecting a design or pattern to consciously delay the conclusion of the trial; and

(vi) The phrase "a hardened, desperate or dangerous criminal" denotes an accused who is likely to seriously injure and hurt others without caring for the consequences of his violent act and will pose a serious threat to the society if set free on bail. Such tentative finding as to character of the accused must be based upon careful examination of the facts and circumstances of the case, supported by sufficient incriminating material.

In the light of the above principles, we proceed to appreciate the statutory ground of delay in conclusion of the trial pleaded by the counsel for the petitioner, for grant of bail to the petitioner.

9. The petitioner was arrested and detained, in this case, on 24.11.2017. The charge against the petitioner was framed on 03.04.2018. Two prosecution witnesses were recorded on 27.02.2020. Till that date, a continuous period of exceeding two years since the detention of the petitioner in the case had lapsed without conclusion of the trial: therefore, a right to be released on bail had prima facie accrued to the petitioner, which could have been denied to the petition of the above-stated two exceptions: only this conclusion of the trial had her person on demission of the petitioner or by any other person acting on his behalf and (b) if the petitioner was found to be a convicted offender for an offence punishable with death or imprisonment for life, or was in the opinion of the court a hardened, desperate or dangerous criminal, or was accused of an act of terrorism punishable with death or imprisonment for life.

10. We have examined the record of the case and found that there is no delay in conclusion of the trial till expiry of the two year period of detention of the petitioner on 25.11.2019, which can be attributed to the petitioner or to any person acting on his behalf reflecting a design or pattern to consciously delay the conclusion of the trial. Any delay attributable to the petitioner after the expiry of the said period is not relevant for determining his right to be released on bail on the statutory ground provided in the 3rd proviso to Section 497(1), Cr.P.C. Nor he appears, in the facts and circumstances of the case, to be a hardened, desperate or dangerous criminal" who is likely to seriously injure and hurt others without caring for the consequences of his violent act and will thus pose a serious threat to the society if set free on bail. The petitioner is, therefore, entitled to be released on bail as a matter of right, not as a concession. The delay in conclusion of the trial, noted by the High Court, attributable to the counsel for the petitioner representing him before the trial court, relates to the period after expiry of the continuous two year period since detention of the petitioner in the case; therefore, it could not have been considered by the High Court for determining the right of the petitioner to be released on bail under the 3rd proviso to section 497(1), Cr.P.C."

(emphasis added)

Therefore, a right to be released on post-arrest bail has accrued to the petitioner due to delay in conclusion of trial of the case under 3rd proviso to Section: 497(1), Cr.P.C.

So far as abscondence of the petitioner is concerned, suffice it to say that if case for grant of post-arrest bail on the ground of delay in conclusion of trial has been made out then bail is granted as a "right" under 3rd proviso to Section 497(1), Cr.P.C. and in this regard, guidance has been sought from the supra case of "Nadeem Samson v. The State and others" (PLD 2022 Supreme Court 112); relevant portion whereof is hereby reproduced: -

"10. We have examined the record of the case and found that there is no delay in conclusion of the trial till expiry of the two year period of detention of the petitioner on 25.11.2019, which can be attributed to the petitioner or to any person acting on his behalf reflecting a design or pattern to consciously delay the conclusion of the trial. Any delay attributable to the petitioner after the expiry of the said period is not relevant for determining his right to be released on bail on the statutory ground provided in the 3rd proviso to Section 497(1), Cr.P.C. Nor he appears, in the facts and circumstances of the case, to be a hardened, desperate or dangerous criminal" who is likely to seriously injure and hurt others without caring for the consequences of his violent act and will thus pose a serious threat to the society if set free on bail. The petitioner is, therefore, entitled to be released on bail as a matter of right, not as a concession."

(emphasis added)

and case of "Shakeel Shah versus The State and others" (2022 SCMR 1) can also be advantageously referred on the subject and relevant portion from the same is hereby reproduced: -

"9. We have, therefore, come to the conclusion that the delay in concluding the trial of the petitioner beyond the period of one year from the date of his arrest/detention has not been occasioned by an act or omission of the petitioner or any other person acting on his behalf, and that in the facts and circumstances of the case the accused does not appear to be a hardened, desperate or dangerous criminal. The petitioner has, thus, made out a case for grant of bail as a matter of right under the third proviso to section 497(1), Cr.P.C.

(emphasis added)

2025 M L D 148

[Lahore]

Before Shams Mehmood Mirza, J

Khuram Iftikhar and another---Petitioners

Versus

Federation of Pakistan and others---Respondents

W.P. No. 178 of 2023 (and other connected Petitions), decided on 24th October, 2024.

(a) Foreign Exchange Regulation Act (VII of 1947)---

----Ss.12(1), 23 & 23A---Adjudication proceedings---Scope---Offence contemplated by S.23 of Foreign Exchange Regulation Act, 1947 is triable by a Tribunal created under S.23A of Foreign Exchange Regulation Act, 1947--- Provision of S.23 of Foreign Exchange Regulation Act, 1947, by its terms excludes, amongst others, provision of S.12 (1) of Foreign Exchange Regulation Act, 1947 from its operation.

(b) Foreign Exchange Regulation Act (VII of 1947)---

----Ss.12(1), 23, 23A & 23B---Adjudication proceedings--- Show cause notice--- Payment of exported goods--- Petitioners / directors of exporter company were aggrieved of show cause notice issued by authorities intending to initiate proceedings for not repatriating export value of exported goods--- Validity--- Contravention of provision of S.12 (1) of Foreign Exchange Regulation Act, 1947, can only result in imposition of penalty and no punishment of sentence is prescribed--- Issue of such punishment does not arise in case of S.23B read with S.12 (1) of Foreign Exchange Regulation Act, 1947--- Statute which visits penal consequences on a person for his conduct must be construed strictly---Legislature did not intend to make directors and other officials of the company liable in case of violation / contravention of the provisions of S.12 (1) of Foreign Exchange Regulation Act, 1947--- Action of authorities in sending show cause notice and summons in pursuance thereof for alleged contravention of provision of S.12 (1) of Foreign Exchange Regulation Act, 1947 by petitioners / directors could not be sustained under S.23B of Foreign Exchange Regulation Act, 1947, which by its terms did not attach any penalty to petitioners / directors of exporter company--- High Court set aside show cause notice and summons issued against petitioners / directors as the same were without lawful authority and of no legal effect--- Constitutional petition was allowed accordingly.

Qassim Shah and others v. The State PLD 1991 SC 893; Superintendent of Police, Federal Investigation Agency, Lahore and another v. Akhtar Hussain Bhutta PLD 1978 SC 193 and Standard Chartered Bank and others v. Directorate of Enforcement and others AIR 2005 SC 2622 ref.

Janan Khan Achakzai v. The State Bank of Pakistan and others PLD 2023 Balochistan 1 and Muhammad Irshad and another v. Deputy Director Adjudication 2003 CLD 917 distinguished.

Shoaib Rashid and Salman Aslam Butt in for the Petitioners (W.Ps. Nos. 176, 178, 38769, 40739 and 6346 all of 2023).

Muhammad Imran Malik, Akif Majeed, Abdul Majeed Sohail, Hassan Ismail, Asif Mehmood Khan, Barrister Khizar Hayat and Farhan Shahzad for the Petitioners (in W.Ps. Nos. 21450 50492 of 2024, 64098, 64101, 66784, 4244, 6303 and 3868 of 2023).

Barrister M. Hamza Akhtar, Barrister Syed Hussnain Abbas, Barrister M. Bilal Ramzan for the Petitioners (in W.Ps. Nos. 46936 and 83129 of 2023).

Zahid Imran Gondal, Adeel Khawar Nahra, Malik Asad Ullah Wagrah, Mst. Zunaira Patrick and Barrister Hassan Safdar Khan for the Petitioners (in W.Ps. Nos. 53988 and 46936 of 2023).

Zia Haider Rizvi for the Petitioner (in W.P. No. 83129 of 2024).

Ch. Jamil Ahsan Gill for the Petitioner (in W.P. No. 49013 of 2024).

Sheraz Zaka Assistant Attorney General.

Rehan Nawaz and Shahid Raza for State Bank of Pakistan.

Dates ofhearing: 13th February and 15th October, 2024.

Judgment

Shams Mehmood Mirza, J.---This judgment shall decide the present writ petition and the connected writ petitions (details whereof are contained in the Schedule 'A' attached hereto) on account of similarity of the subject matter agitated therein.

For the purpose of this judgment, only the facts of the present case shall be stated.

1. The petitioners have made multiple prayers one of which relates to the vires of section 23B of the Foreign Exchange Regulation Act, 1974 (the Act). The petitioners, however, on first date of hearing did not press this prayer. The same is the case in all the connected petitions. This Court is, therefore, not required to render any findings on that issue.

2. The petitioners have assailed show-cause notice dated 01.07.2010 and the summons issued in pursuance thereof on 27.12.2022 under section 23B of the Act.

3. The petitioners are shareholders/directors of Messrs Amtex Limited (the Company) which in the course of its business made export of goods in the year 2009 after completing all the process formalities of the Act and Foreign Exchange Manual. The foreign buyer of the goods did not make payment and accordingly the funds were not repatriated. A show-cause notice was issued to the petitioners under section 23B of the Act alleging violation of section 12(1) of the Act. The petitioners duly filed the reply to the show-cause notice on 21.05.2012 whereafter they received no information about the fate of their reply, or the contentions raised therein. After a lapse of more than ten years, the petitioners received the summon for framing of charge on them under the provisions of the Adjudication Proceedings and Appeal Rules, 1998. The petitioners accordingly filed the present writ petition questioning the authority of the respondents to hold them liable under section 23B of the Act.

4. Mr. Shoaib Rashid Advocate, learned counsel for the petitioners, has primarily made two submissions. Firstly, it is stated that there are a number of provisions in the Act which make the directors, managers, secretary and other officers liable if the person guilty of contravention of the provisions of the Act is a company or a body corporate. It is contended that section 23B of the Act which deals specifically with contravention of section 12(1) of the Act does not hold the directors and other officers of a company personally liable for the offence. It is also pleaded that in the absence of any show-cause notice issued to the Company, proceedings cannot be initiated against the petitioners. The next contention of the petitioners is that section 12(1) of the Act only deals with furnishing of a declaration by the exporter to the prescribed authority that the amount of the export value of the goods shall be paid within the stipulated period and in the prescribed manner. It is stated that the provisions contained in section 12(1) of the Act only deal with the failure of the exporter to furnish such a declaration and not the failure to repatriate the amount. In support of his submissions, the learned counsel has relied on the judgments reported as Qassim Shah and others v. The State PLD 1991 SC 893, Superintendent of Police, Federal Investigation Agency, Lahore and another v. Akhtar Hussain Bhutta PLD 1978 SC 193 and Standard Chartered Bank and others v. Directorate of Enforcement and others AIR 2005 SC 2622.

5. Mr. Muhammad Imran Malik Advocate on behalf of petitioners in the connected writ petitions submitted that litigation between petitioners and reporting banks is still pending adjudication before the banking court in which no final decision has been passed as yet and as such the proceedings under section 23B of the Act cannot be initiated against the directors of a Company.

6. Learned counsel for State Bank of Pakistan argued that non-repatriation of funds constitutes an offence under section 12(1) of the Act and, therefore, the show-cause notice was rightly served on the petitioners. In this regard, he has placed reliance on judgments reported as Janan Khan Achakzai v. The State Bank of Pakistan and others PLD 2023 Balochistan 1 and Muhammad Irshad and another v. Deputy Director Adjudication 2003 CLD 917.

7. The Assistant Attorney General also relied on the judgments cited by learned counsel for State Bank of Pakistan to contend that the petitioners ought to raise all the objections before the Adjudicating Officer.

8. The Act creates several offences through its various provisions. The contravention of the provisions contained in section 12(1) have also been made an offence through section 23B(4) which stipulates the punishment of penalty on the terms mentioned in that provision.

9. Section 12(1) is the relevant provision which reads as under:

Payment for exported floods. (1) The Federal Government may, by notification in the official Gazette, prohibit the export of any goods or class of goods specified in the notification from Pakistan directly or indirectly to any place so specified unless a declaration supported by such evidence as may be prescribed or so specified, is furnished by the exporter to the prescribed authority that the amount representing the full export value of the goods has been, or will within the prescribed period be, paid in the prescribed manner.

This provision requires a declaration from the exporter to the prescribed authority that the amount representing the full export value of the goods shall be paid within the prescribed period and manner.

1. Section 23 and section 23K of the Act are the two provisions where the directors and other officers are also held accountable along with the company. Section 23(4) reads as follows

(4) Where the person guilty of an offense under this Act is a company or other body corporate every director, manager, secretary and other officer thereof who is knowingly a party to the offence shall also be guilty of the same offense and liable to the same punishment.

The provision contained in section 23K provides that:

(2) Where the person guilty of such contravention is a company or a body corporate, every director, manager, secretary or other officer or agent thereof shall be deemed guilty of such contravention, if the contravention was committed with his knowledge or consent or if he did not exercise due diligence to prevent the commission of the offence.

1. The primary question requiring determination is whether section 23B(4) visits the penalty for failure to provide the declaration contemplated by section 12(1) or in case declaration is furnished the failure to repatriate the funds is the trigger for commission of the offence. Although learned Assistant Advocate General and the learned counsel for State Bank of Pakistan relied upon the judgments rendered by the learned Sindh High Court and Balochistan High Court as noted above, a careful perusal of these judgments show that the question posed in the form before this Court was not adjudicated upon.

2. The petitioners contend that only a declaration is contemplated by section 12(1) and that failure to repatriate the funds does not come within the ambit of the said provision. The reasoning of the petitioners for placing such a construction on section 12(1) cannot be accepted. It is undisputed that the furnishing of declaration is a condition prededent for allowing the exporter to export the goods. The process of granting permission is not completed in the absence of such a declaration and thus an exporter without fulfilling this requirement cannot export the goods. On this premise, section 23B (4) shall be taken to deal with a situation where exports have been made after compliance with the conditions attached by the Act and the Foreign Exchange Manual and that funds in lieu thereof have not been repatriated. The language of the clause "...liable to such penalty not exceeding five times the amount or value involved..." and the further provision that if the contravention persists or the contravention or default is continuing negate the argument of the petitioners.

3. The only question left to be answered relates to the liability of the petitioners. The proposition put forward by the petitioners that the directors and other officials of the company or a body corporate were made liable for offences where the legislature deemed it necessary as in the case of sections 23 and 23K and that the absence of such a stipulation in section 23B would absolve them from prosecution appears to be tenable.

4. A cursory look at the Act makes it evident that section 23 makes contravention of any provision of the Act [excluding sections 3, 3A, 3AA, 3B, 4(2) and (3), 10, 12(1) and clause (c) of subsection (1) and subsection (3) of section 20] punishable with rigorous imprisonment for a term which may extend to five years or with fine or with both. The offence contemplated by this provision is triable by a Tribunal created under section 23A of the Act. Section 23 by its terms excludes, amongst others, section 12(1) from its operation. The show-cause notice and the summons (impugned herein) mention section 12(1) and make no reference to any other provision of the Act. The respondents, therefore, cannot resort to section 23 for initiating prosecution against the petitioners.

5. Section 23B provides for the appointment of Adjudicating Officers by the Federal Government who are in service of the State Bank of Pakistan to exercise the powers and discharge the duties conferred or imposed on him by the Act. Of all the excluded provisions of the Act from the ambit of section 23, the contravention of section 12(1) [including sections 4(3), 10, or 20(3)] is specifically covered by section 23B. Subsection (4) of section 23B makes the contravention liable to such penalty not exceeding five times the amount or value involved in such contravention or five thousand rupees, whichever is more, or where the contravention or default is a continuing one, to a further penalty which may extend to two thousand rupees for every day during which the offence continues, as may be adjudged by the Adjudicating Officer having jurisdiction. The remedy against the penalty by the Adjudicating Officer is through an appeal before the Appellate Board constituted under section 23C of the Act.

6. The contravention of the other provisions excluded from the operation of section 23 [which are not mentioned in section 23B (4)] are covered by section 23K of the Act. As is the case in section 23B(4), this provision too makes an offender liable to a penalty to be imposed by an officer of the State Bank not below the rank of Senior Joint Director authorized by the State Bank in this behalf, up to five hundred thousand rupees for each contravention, and where the contravention is a continuing one with a further penalty which may extend to ten thousand rupees for each day during which such contravention continues.

7. The pivotal point to note is that sections 23 and 23K of the Act contain stipulations that to the effect that where the person guilty of an offense or contravention is a company or other body corporate, every director, manager, secretary and other officer shall also be liable. The only difference in the two provisions is that in the case of section 23K only such officers have been made liable who had knowledge of and gave their consent for the contravention or if they did not exercise due diligence to prevent the commission of the offence.

8. The contention of the respondents' against the case of the petitioners falter for the most basic of the reasons. The legislature consciously attached liability to the directors and other officers of the company under sections 23 and 23K but did not make it part of section 23B and thus it may be presumed that such liability was not intended. Having intentionally kept the directors and other officers of the company or body corporate immune from liability on the infraction covered by section 23B, the Act did not extend to the respondents any authority to proceed against them. It is vitally important to note that the contravention of the provisions of section 12(1) can only result in imposition of penalty and no punishment of sentence is prescribed. On this analysis, the issue of whether such a punishment can be awarded to a company does not arise in the case of section 23B read with section 12(1) of the Act. Similarly, the ancillary question that a prior verdict against the company is necessary for initiating proceeding against its directors or officers is also not required to be answered in this case.

9. It is trite that any statute which visits penal consequences on a person for his conduct must be construed strictly. Keeping in view the scheme of the Act and the provisions dealing with the offences, it becomes clear that the legislature did not intend to make the directors and other officials of the company liable in case of violation/contravention of the provisions of section 12(1) of the Act. The action of the respondents in sending show-cause notices and summons in pursuance thereof for the alleged contravention of the provisions of section 12(1) of the Act by the Company cannot be sustained under section 23B which by its terms does not attach any penalty to the petitioners being the directors of the Company.

10. This writ petition is accordingly allowed and show-cause notice dated 01.07.2010 and the summons issued in pursuance thereof on 27.12.2022 are declared to be without lawful authority and of no legal effect. The connected writ petitions are also allowed on the same terms.

Schedule 'A'

| | | | | --- | --- | --- | | Sr. No. | W.P. Numbers | Title of the cases | | 1. | 3868 of 2023 | Azhar Majeed Sheikh and others v. Federation of Pakistan and others | | 2. | 38769 of 2023 | Tanveer Ahmad and others v. Federation of Pakistan and others | | 3. | 40739 of 2023 | Tanveer Ahmad and others v. Federation of Pakistan and others | | 4. | 46936 of 2023 | Zahid Tauseef and others v. Federation of Pakistan and others | | 5. | 53988 of 2023 | AkmalImdad Sheikh v. Federation of Pakistan and others | | 6. | 64098 of 2023 | Imran Aslam and others v. Federation of Pakistan and others | | 7. | 64101 of 2023 | Hassan Akbar andothers v. Federation of Pakistan and others | | 8. | 66784 of 2023 | Muhammad Umar and others v. Federation of Pakistan and others | | 9. | 67036 of 2023 | Sheikh Masood Hussain and others v. Federation of Pakistan and others | | 10. | 21450 of 2024 | Riaz Arshad Chawla and others v. Federation of Pakistan and others | | 11. | 6303 of 2023 | Shamshad Ali Cheema v. Federation of Pakistan and others | | 12. | 83129 of 2023 | Zahid Tauseef and others v. Federation of Pakistan and others | | 13. | 176 of 2023 | Mian Muhammad Latif and others v. Federation of Pakistan and others |

2025 M L D 158

[Lahore]

Before Muhammad Raza Qureshi, J

Amir Sajjad---Petitioner

Versus

Ghulam Murtaza Ch. through Special Attorney---Respondent

Civil Revisions Nos. 15213 and 15217 of 2023, heard on 8th May, 2023.

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

---- O. XII ---Qanun-e-Shahadat (10 of 1984), Art. 17, 76 & 79---Document alleged to be admitted by opposing party---Scope---Contention of the petitioner /plaintiff was that subject matter agreement-to-sell was an admitted document --- Validity --- Record revealed that said contention was inherently flawed and factually incorrect as the contents of written-statement filed by the respondent /defendant clearly reflected that though he conceded the existence of the subject matter agreement to sell, but alleged an interpolation with respect to date contained therein and categorically pleaded that the subject matter agreement to sell was forged one and date mentioned therein as 10.12.2012 was interposed by writing as 10.12.2014, therefore, in such scenario, it could not be accepted that the subject matter agreement to sell was an admitted document--- It was obligatory for the petitioner to produce the original document and in case he contended that original agreement to sell was with the respondent, it was his responsibility to follow the mandate contained in provisions of Art.76 of the Qanun-e-Shahadat, 1984, with respect to production of secondary evidence--- Failure of the petitioner to serve notice to produce or admit and deny the subject matter agreement to sell under O.XII of the C.P.C. had serious consequence under the law and one of the fundamental consequences thereof was that without following the mandate of law he was debarred to produce secondary evidence---This was the primary justification and rightly so prevailed with the Trial Court while dismissing the suit for specific performance of agreement to sell----Petitioner did not make any effort to prove the alleged agreement-to-sell through the mode prescribed under the Qanun-e-Shahadat Order, 1984---High Court concured with the findings contained in the impugned judgments and decrees, as to the proof of the subject matter agreement to sell which was mandatory, especially, when there was an allegation of interpolation in the contents of said agreement to sell and the petitioner in the course of evidence failed to prove transaction satisfying the tests laid down by the provisions of Arts.17 & 79 of the Order, 1984---No material illegality or irregularity having been notices in the findings contained in the impugned judgments and decrees passed by the Courts below, the same were maintained---Civil revisions were dismissed, in circumstances.

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

----S. 12---Suit for specific performance---Agreement to sell---Payment of balance consideration---Willingness of vendee---Proof---Petitioner /plaintiff in the plaint of his suit categorically pleaded his readiness and willingness to perform his part of agreement to sell, yet he throughout failed to satisfy the test of law---To substantiate his bona fide claim, the petitioner should have filed an application with the Trial Court for depositing the balance sale consideration--- Thus, the findings of the Trial Court with respect to silence of the petitioner to substantiate his readiness and willingness could not be interfered with---No material illegality or irregularity having been noticed in findings contained in the impugned judgments and decrees passed by the Courts below, the same were maintained --- Civil revisions were dismissed, in circumstances.

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

----Art. 76 --- Death of a witness --- Secondary evidence ---Scope---It was evident from the subject matter agreement to sell that it bore names of two marginal witnesses--- Petitioner had conceded before the High Court that only one witness appeared before the Court but the other witness could not be produced as he had already died--- In case the said witness had passed away, then the petitioner was under an obligation to prove his death and prove through secondary evidence the elements such as comparison of signatures and thumb impressions with admitted thumb impressions and signatures on other documents and he was required to prove signatures or thumb impressions of dead person through identification of his signatures from any one of his relatives like son, brother, etc. --- Mere statement of the plaintiff regarding death of a witness did not alleviate or exonerate him to prove the contents of a disputed document---Said facts should have been pleaded and having established the non-availability of the witness by reason of his death, steps should have been taken to adduce secondary evidence with the leave of the Court--- Findings contained in the impugned judgments and decrees dismissing the suit for specific performance of agreement to sell did not warrant any interference and concurrent findings of facts could not be interfered with, especially, if the wishful thinking of the petitioner expected a different conclusion on facts than the one arrived at by the courts below---No material illegality or irregularity having been noticed in findings contained in the impugned judgments and decrees passed by the Courts below, the same were maintained --- Civil revisions were dismissed, in circumstances.

Anwar Ahmad v. Mst. Nafis Banno through Legal Heirs 2005 SCMR 152; Sheikh Muhammad Muneer v. Mst. Feezan PLD 2021 SC 538; Mst. Kausar Bibi v. Muhammad Sarwar and others 2022 YLR 1028; City Education Board (Registered) Sialkot through Director v. Mst. Maqbool Nasreen PLD 2008 Lahore 51; Amjad Khan v. Muhammad Irshad (deceased) through L.Rs 2020 SCMR 2155 and Shajar Islam v. Muhammad Siddique and 2 others PLD 2007 SC 45 ref.

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

---- S. 39 --- Suit for cancellation of document ---Findings of the Appellate Court differing with findings of Trial Court --- Scope --- District (First Appellate ) Court reversed the findings with respect to decreeing the suit for cancellation of agreement to sell filed by the respondent --- Validity --- There was sufficient material in the oral as well as documentary evidence available with the Appellate Court to vary the judgment and decree passed by the Trial Court as it is settled law that in case of difference of opinion in the judgments and decrees passed by the Trial Court and the Appellate Court, the view expressed by the latter shall be given preference and weightage---No material illegality or irregularity having been noticed in findings contained in the impugned judgments and decrees passed by the Courts below, the same were maintained --- Civil revisions were dismissed, in circumstances.

Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617; Muhammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs and others 2013 SCMR 1300; Amjad Ikram v. Mst. Asya Kausar and 2 others 2015 SCMR 1 and Muhammad Yasin through L.Rs. and others v. Muhammad Latif and others 2016 CLC 553 ref.

Muhammad Sarwar Qamar for the Petitioner.

Pervaiz Akhtar Tahir for Respondent.

Date of hearing: 8th May, 2023.

Judgment

Muhammad Raza Qureshi, J.---Since the instant Revision Petition as well as connected petition bearing No. 15217 of 2023 emanate from consolidated Judgments and Decrees (hereinafter referred to as the "Impugned Judgments and Decrees") and agitate similar questions of law as well as facts, therefore, they are decided together.

1. Through these Civil Revisions under Section 115 of the Code of Civil Procedure, 1908 (the "C.P.C."), the Petitioner has called into question the validity and legality of findings contained in the Impugned Judgments and Decrees dated 29.06.2022 and 07.02.2023. Pursuant to the Impugned Judgment and Decree passed by the Trial Court, counter suits filed by the parties seeking specific performance of agreement to sell and cancellation of said agreement to sell were dismissed. However, through the Impugned Judgment and Decree dated 07.02.2023 rendered by the Appellate Court, the Judgment and Decree passed in suit for specific performance of agreement to sell filed by the Petitioner was maintained, whereas the Judgment and Decree passed by the Trial Court in the suit filed by the Respondent seeking cancellation of subject matter agreement to sell was reversed and the suit filed by the Respondent was decreed.

2. Learned counsel for the Petitioner submits that the Impugned Judgments and Decrees are illegal and unlawful and both the Courts below while passing the same have committed material irregularity. According to learned counsel, since the subject matter agreement to sell was an admitted document, therefore, there was no occasion for the Trial Court to dismiss Petitioner's suit on the ground that Petitioner failed to produce original agreement to sell and also failed to prove the same in terms of Articles 17 and 79 of the Qanun-e-Shahadat Order, 1984 (hereinafter referred to as the "Order"). According to learned counsel, to the extent of findings contained in Impugned Judgment and Decree passed by the Appellate Court on issue No.3, it misread the evidence by holding that Petitioner was liable to pay rent to the Respondent for the subject matter property. Lastly, contends that the Impugned Judgments and Decrees are nullity in the eyes of law, hence are liable to be set aside.

3. Conversely, learned counsel for the Respondent while supporting the Impugned Judgment and Decree passed by the Appellate Court contends that the Appellate Court followed the cannons of justice and rightly adjudicated the matter in view of pleadings respectively canvassed by the parties and documentary as well as oral evidence. According to learned counsel, the findings contained in the Impugned Judgments and Decrees passed to the extent they are concurrent cannot be evaluated by this Court in exercise of supervisory jurisdiction as Courts below while passing the same neither misread the evidence nor failed to appreciate the material on record. Pursuant to query posed by this Court with respect to findings on issue No. 3 recorded in Judgment and Decree passed by the Appellate Court, learned counsel concedes factual as well as legal position.

4. Arguments of learned counsel for the parties have been heard and record has been perused with their able assistance. At the outset, it is observed that the contention of the Petitioner that subject matter agreement to sell was an admitted document is inherently flawed and factually incorrect as the contents of written statement filed by the Respondent clearly reflects that though Respondent conceded the existence of the subject matter agreement to sell, but alleged an interpolation with respect to date contained therein and categorically pleaded that the subject matter agreement to sell was forged one and date mentioned therein as 10.12.2012 was interposed by writing as 10.12.2014, therefore, in such scenario, it cannot be accepted that the subject matter agreement to sell was an admitted document. It was obligatory for the Petitioner to produce the original document and in case the Petitioner contended that original agreement to sell was with the Respondent, it was his responsibility to follow the mandate contained in provisions of Article 76 of the Order with respect to production of secondary evidence. The failure of the Petitioner to serve notice to produce or admit and deny the subject matter agreement to sell under Order XII of the C.P.C., has serious consequence under the law and one of the fundamental consequences thereof, is that without following the mandate of law he was debarred to produce secondary evidence. This is the primary justification and rightly so prevailing with the Trial Court while dismissing the suit for specific performance of agreement to sell.

5. Likewise, though the Petitioner in paragraph No.3 of his Suit categorically pleaded his readiness and willingness to perform his part of agreement to sell, yet he throughout failed to satisfy the test of law, wherein to substantiate his bona fide claim, the Petitioner should have filed an Application with the Trial Court for depositing the balance sale consideration. Thus, the findings of the Trial Court with respect to silence of the Petitioner to substantiate his readiness and willingness cannot be interfered.

6. It is evident from the subject matter agreement to sell that it bears names of two marginal witnesses, namely, Nasir Hussain and Sana Ullah. The Petitioner has conceded before this Court that only witness who appeared before the Court was Nasir Hussain (DW-2), but the other witness Sana Ullah could not be produced as he had already died. In case the said witness had passed away, then the Petitioner was under an obligation to prove his death and prove through secondary evidence the elements such as comparison of signatures and thumb impressions with admitted thumb impressions and signatures on other documents and he was required to prove signatures or thumb impressions of dead person through identification of his signatures from any one of his relatives like son, brother, etc. Mere statement of the Plaintiff regarding death of a witness does not alleviate or exonerate him to prove the contents of a disputed document. These facts should have been pleaded and having established the non-availability of the witness by reason of his death, steps should have been taken to adduce secondary evidence with the leave of the Court. Reliance in this regard is placed upon the judgments reported as Anwar Ahmad v. Mst. Nafis Banno through Legal Heirs (2005 SCMR 152), Sheikh Muhammad Muneer v. Mst. Feezan (PLD 2021 SC 538), Mst. Kausar Bibi v. Muhammad Sarwar and others (2022 YLR 1028) and City Education Board (Registered) Sialkot through Director v. Mst. Maqbool Nasreen (PLD 2008 Lahore 51).

7. In the instant case, the Petitioner did not make any effort to prove the alleged agreement to sell through the mode prescribed under the Order. This Court concurs with the findings contained in the Impugned Judgments and Decrees, as to the proof of the subject matter agreement to sell which was mandatory, especially, when there was an allegation of interpolation in the contents of said agreement to sell and the Petitioner in the course of evidence failed to prove transaction satisfying the tests laid down by the provisions of Articles 17 and 79 of the Order.

2025 M L D 169

[Lahore]

Before Sultan Tanvir Ahmad, J

Mehmood-ul-Haq---Petitioner

Versus

Waqas Mehmood Maan and 21 others---Respondents

Election Petition No.21857 of 2024, heard on 24th October, 2024.

Elections Act (XXXIII of 2017)---

----Ss.144(1)(b), 2(c) & 144(4)---Civil Procedure Code (V of 1908), O. VI, R.15---Election petition---Maintainability---Summary rejection---Scope---Non-fulfilment of mandatory procedural requirements for filing election petition---Effect---Non-verification of pleadings---Absence of affidavit of service---Allegation of massive rigging and pressurizing voters to poll in favour of returned candidate by some influential person---Objections were raised by the respondents as to maintainability of the election petition for summary rejection thereof without resorting to regular trial---Validity---Instead of any verification at the bottom of election petition a certificate was given---Election petition was accompanied by an affidavit and the verification of the same did not reflect that which paragraph was verified on the basis of personal knowledge and which paragraph was verified on account of belief of the election-petitioner---Verification of affidavit was self-evident of the fact that the same was deficient in material respects including the requirement of identification of deponent with reference to his National Identification Card, rather identification was reflected by someone whose name was not even legible---Petitioner acknowledged before the Election Tribunal that the petitioner remained negligent in appending affidavit of service and in order to overcome this deficiency he stated that petition was filed by some other counsel, which was repelled by the Election Tribunal---Someone holding a constitutional post was alleged to have influenced the election in the given constituency, however, the petitioner had failed to give any particulars or even the name of that person---Affidavits of the witnesses were also silent as to this aspect and all the 14 affidavits were identical, as only the names of the witnesses were changed by repeating the same allegation---Election petition was rejected summarily, in circumstances.

Col. (R) Muhammad Shabir Awan v. Raja Saghir Ahmed and 4 others PLD 2023 Lahore 458; Malik Muhammad Nawaz v. Khayal Ahmad and others 2019 CLC 960; Sardar Abdul Rehman v. Abdul Kareem Khetran and others 2021 SCMR 82; Lt.-Col (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others 2015 SCMR 1585; Mir Mujib-Ur-Rehman Muhammad Hassani v. Returning Officer, PB-41 Washuk and others PLD 2020, SC 718; Abdul Wahab Baloch v. Imran Ahmad Khan Niazi and others PLD 2019 Lahore 119 and Inayatullah v. Syed Khursheed Ahmed Shah and others 2014 SCMR 1477 rel.

Afzal A. Haider for the Petitioner.

Rizwan-ul-Hassan and Umar Bin Nauman for the Respondents.

Imran Arif Ranjha, Legal Advisor for Election Commission of Pakistan.

Date of hearing: 24th October, 2024.

Judgment

Sultan Tanvir Ahmad, J.---Through this election petition, the petitioner. has called into question the election in PP-142 Sheikhupura-VII, inter alia, on the grounds that massive rigging was committed by pressurizing voters to poll in favour of the returned candidate, at the behest of some influential person who is one of supporter of the returned candidate.

1. Mr. Rizwan-ul-Hassan-learned counsel for respondent No. 1 has raised several objections as to the maintainability of this election petition including that (i) petition does not contain any verification by the petitioner, (ii) the attached affidavit is defective in several respects, (iii) no affidavit of service is attached with this petition and (iv) the election petition is barred by one day. The objections are opposed by learned counsel for the petitioner.

2. Heard.

3. The Honourable Supreme Court as well as this Court in several cases including "Col. (R) Muhammad Shabir Awan v. Raja Saghir Ahmed and 4 others" (PLD 2023 Lahore 458) has already settled that section 145 of the Election Act, 2017 (the 'Act') contemplates that if any provision contained in sections 142 to 144 of the Act is not complied with, this Tribunal cannot wait till the culmination of the proceedings through regular trial and it is mandate of law to reject the plaint. Similar view has also been adopted in case titled "Malik Muhammad Nawaz v. Khayal Ahmad and others" (2019 CLC 960). The Honourable Supreme Court of Pakistan in case titled "Sardar Abdul Rehman v. Abdul Kareem Khetran and others" (2021 SCMR 82) concluded that section 144(4) of the Act is mandatory, violation whereof, would inevitably result into summary rejection of the petition as is evident from the plain language of subsection (1) of section 148 of the Act. It has also been ruled in the said judgment that it is incumbent upon the petitioner to follow the procedure expressly provided by the Act itself; and when the same is not followed by him, such petition is liable to be rejected. Further reference can be made to cases titled "Lt.-Col (Rtd.) Ghazanfar Abbas Shah v. Mehr Khalid Mehmood Sargana and others" (2015 SCMR 1585) and "Mir Mujib-Ur-Rehman Muhammad Hassani v. Returning Officer, PB-41 Washuk and others" (PLD 2020 SC 718).

4. In the present case, instead of any verification, at the bottom of this petition following certificate is given:-

CERTIFICATE:

"As per instructions it is certified that this is first Petition on the subject before this Honourabe Court."

This petition is accompanied by an affidavit and the verification of the same does not reflect that which paragraph is verified on the basis of personal knowledge and which paragraph is being verified on account of belief of the election-petitioner. After survey of the complete case laws on the subject, this Court in case titled "Abdul Wahab Baloch v. Imran Ahmad Khan Niazi and others" (PLD 2019 Lahore 119) reached to the conclusion that even a short affidavit is sufficient if it duly fulfills the requirement of Order VI Rule 15 of the Code and at the same time that identification of deponent before the Oath Commissioner should be with reference to his / her National Identity Card and the word "solemn affirmation before me" in the stamp of the Oath Commissioner should indicate that election-petitioner was present before the Oath Commissioner at the time of attestation and the oath was administered. Scanned image of verification and the stamp of the Oath Commissioner is pasted below for proper appreciation:-

2025 M L D 182

[Lahore]

Before Ch. Muhammad Iqbal, J

Lahore Development Authority through Director General---Petitioner

Versus

Farah Inam and 5 others---Respondents

Civil Revision No. 216653 of 2018, heard on 26th September, 2024.

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

----Arts.17, 79 & 129(g)---Specific Relief Act ( I of 1877) , S. 42---Cancellation of allotment of plots on the basis of fraud and misrepresentation---Suit for declaration---General power of attorney and sale deeds, execution of---Proof---Marginal witnesses, non-production of---Effect---Withholding of evidence---Suit filed by the plaintiffs was dismissed---Appeal preferred by the plaintiffs was allowed---Validity---Original allottee stated that she did not execute any general power of attorney and that the sale deeds based on that general power of attorney were forged documents and based on fraud and misrepresentation---Plaintiffs could not rebut that stance through any concrete, solid and trustworthy oral as well as documentary evidence, thus, it was proved that fraud was committed in preparing the files of the plots---General power of attorney was required to be proved by producing the alleged attorney, the scribe, witnesses as well as Sub-Registrar, who registered the said document but all these witnesses were not produced by the plaintiffs---Under Art.17 read with Art.79 of the Qanun-e-Shahadat, 1984, it was duty of the beneficiaries/plaintiffs to prove the alleged general power of attorney by producing both the marginal witnesses, whereas no marginal witness thereof was produced by plaintiffs in evidence without any reason, thus, they had failed to prove the execution of the alleged general power of attorney as per law---Best evidence of material witnesses was withheld, thus, adverse inference under Art.129(g) of Qanun-e-Shahadat, 1984, was drawn against them---Execution of general power of attorney could not be proved, thus, the subsequent transactions on the basis thereof would collapse and would have no sanctity in the eye of law---Vendor/transferor from whom plaintiffs had purchased the plots had no valid title, thus, plaintiffs being subsequent purchasers had to soar and sink with their vendor/transferor and they were debarred from claiming any better title---Plaintiffs had failed to prove the assertions made in the plaint through any unimpeachable and trustworthy evidence---Appellate Court did not consider or discuss any oral as well as documentary evidence and by committing misreading and non-reading of record passed the judgment and decree, which suffered from patent illegality and irregularity, thus, the same was set aside---Civil revision was allowed, in circumstances.

Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089; Hafiz Tassaduq Hussain v. Muhammad Din through LRs and others PLD 2011 SC 241; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187; Sughran Bibi v. Mst. Aziz Begum and 4 others 1996 SCMR 137; Jehangir v. Mst. Shams Sultan's and others 2022 SCMR 309; Rehmatullah and others v. Saleh Khan and others 2007 SCMR 729; Muhammad Yamin and others v. Settlement Commissioner and others 1976 SCMR 489; Bashir Ahmad and others v. Additional Commissioner with powers of Settlement Commissioner (L) and others 1983 SCMR 1199; Talib Hussain and others v. Member, Board of Revenue and others 2003 SCMR 549; Province of the Punjab through Collector, Sheikhupura and others v. Syed Ghazanfar Ali Shah and others 2017 SCMR 172; Abdul Hamid v. M.B.R. and others 1994 CLC 1160 and Nazim-ud-Din and others v. Sheikh Zia-Ul-Qamar and others 2016 SCMR 24 rel.

(b) Fraud---

---Fraud vitiates the most solemn proceedings and any edifice so raised on the basis of such fraudulent transactions would automatically dismantle and any ill-gotten gain achieved by fraudster could not be validated under any norms of laws.

Nawab Syed Raunar Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; Lahore Development Authority v. Firdous Steel Mills (Pvt.) Limited 2010 SCMR 1097 and Mst. Nazeeran and others v. Ali Bux and others 2024 SCMR 1271 rel.

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

----S.115---Constitution of Pakistan, Art.203---Civil revision---Limitation---Scope---Suo motu jurisdiction of High Court as supervisory and revisional court---Scope---Under Art.203 of the Constitution read with S.115, C.P.C, High Court being a supervisory and revisional Court has suo motu jurisdiction to look into the matter where any illegality has been committed by the Courts below and to pass an appropriate order in the interest of justice as it thinks fit even if the revision petition has been filed beyond the prescribed limitation

Hafeez Ahmad and others v. Civil Judge, Lahore and others PLD 2012 SC 400 rel.

Barrister Haris Azmat for the Petitioner.

Muhammad Yaseen Bhatti for Respondents.

Date of hearing: 26th September, 2024.

Judgment

Ch. Muhammad Iqbal, J.---Through this civil revision, the petitioner has challenged the validity of the judgment and decree dated 25.10.2017 passed by the learned Additional District Judge, Lahore who accepted the appeal of the respondents, set aside the judgment and decree dated 08.03.2011 passed by the learned Civil Judge, Lahore and decreed the suit filed by the respondents.

1. Brief facts of the case are that the respondents Nos.1 and 2/ plaintiffs filed suit for declaration against the petitioner and respondents Nos.3 to 6/defendants and contended that they purchased two adjacent plots measuring 05 Marla each bearing Nos.128 and 129, Block-G, Muhammad Ali Johar Town, Lahore. The respondent No.1/plaintiff No.l. purchased Plot No.128 from respondent No.3/Afzaal Ahmad/defendant No.2 and respondent No.2/plaintiff No.2 purchased plot from respondent No.4/defendant No.3/Zafar-ul-Mohsin. Agreements to sell were written. Later on application was filed before petitioner/L.D.A for transfer of plots in favour of the respondents Nos.1 and 2/plaintiffs. Subsequently, Plot Nos.128 and 129 were transferred in favour of respondents Nos.1 and 2/plaintiffs respectively on the same date. The respondents Nos.3 and 4/defendants had purchased plots in question from respondent No.5/Mst. Razia Fatima/defendant No.4 through registered sale deeds. On 21.02.2000, petitioner/L.D.A served notice to the respondents Nos.1 and 2/plaintiffs for the cancellation of allotment of plots to the respondents/plaintiffs. The respondents/plaintiffs contended that the notice is against the record and liable to be set aside being illegal and unlawful. Razia Fatima/defendant No.4 filed written statement and stated that some person in collusion of L.D.A staff prepared forged allotment in her name and then on the basis of fake general power of attorney, the land was transferred from her name to the respondents/defendants. Razia filed application before the L.D.A and Anti-corruption Establishment and prayed for cancellation of allotment as well general power of attorney. The respondents/defendants Nos.2 and 3 filed consenting written statement. The L.D.A./petitioner/defendant No.1 filed contesting written statement. Out of the divergent pleadings of the parties, the trial Court framed issues, recorded pro and contra evidence of the parties and finally dismissed the suit vide judgment and decree dated 08.03.2011. The respondents filed an appeal which was also allowed by the appellate Court vide judgment and decree dated 25.10.2017 and by setting aside the judgment and decree dated 08.03.2011 passed by the learned trial Court the suit of the respondents Nos.1 and 2/plaintiffs was decreed. Hence, this civil revision.

2. Arguments heard. Record perused.

3. The core controversy involved in this case revolves around issue No.1 which is reproduced as under:

"Whether the plaintiffs are entitled to a decree for declaration as prayed for? OPP"

Respondents/plaintiffs produced Akhtar Ali, Assistant Director L.D.A. (P.W.1) who produced the record of plots of 128, 129 measuring 05 Marla each. That these plots were transferred in favour of Farah Inam on 23.07.2008, however, after inquiry fraud was proved upon which plots were cancelled. Inayat-ur-Rehman (P.W.2), special attorney of the respondents/plaintiffs, during cross-examination deposed that he did not know that whether Riaz Fatima recorded any statement before L.D.A; that he did not know whether sale deeds and general power of attorney are forged documents. The respondents/plaintiffs also produced Inam-ur-Rehman (P.W.3).

1. Perusal of statement of Akhtar Ali, Assistant Director, L.D.A (P.W.1) categorically stated that Riaz Fatima recorded statement that she neither appointed general power of attorney and executed sale deed and these documents are forged documents. Inayat-ur-Rehman (P.W.2) in his cross-examination did not deny that the sale deed and power of attorney are forged documents rather he deposed that he did not know anything about these documents. He also deposed that he did not know regarding the statement recorded by Riaz Fatima before L.D.A.

2. Further, Riaz Fatima, the alleged owner of the suit plots, filed application to the L.D.A for exemption of her property measuring 01 Kanal 14 Marlas bearing Khasra No.12198 Moza Naiz Baig on 13.11.1984 upon which plot Nos.192 and 193 were allotted to her. She categorically stated that she did not execute any general power of attorney as such the general power of attorney as well as sale deeds based on that general power of attorney are forged documents and based on fraud and misrepresentation. The respondents/plaintiffs could not rebut the stance of Mst. Riaz Fatima through any concrete, solid and trustworthy oral as well as documentary evidence. It is thus proved on record that fraud was committed in preparing the files of the plots in question and it is settled law that fraud vitiates the most solemn proceedings and any edifice so raised on the basis of such fraudulent transaction, that stand automatically dismantled and any ill-gotten gain achieved by fraudster cannot be validated under any norms of laws. Reliance in this regard is placed on cases cited as Nawab Syed Raunar Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236), Lahore Development Authority v. Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097) and Mst. Nazeeran and others v. Ali Bux and others (2024 SCMR 1271).

3. The appellate Court has accepted the appeal of the respondents Nos.1 and 2/plaintiffs on the sole ground that they are bona fide purchasers. As Riaz Fatima, the alleged owner of the suit plots, has denied the execution of any general power of attorney. The basic document of alleged general power of attorney was required to be proved by producing the alleged attorney, the scribe, witnesses as well as Sub-Registrar who registered the said document but all these witnesses were not produced by the respondents/plaintiffs. Under Article 17 read with Article 79 of the Qanun-e-Shahadat Order, 1984, it is duty of the beneficiary, respondents/plaintiffs to prove the alleged general power of attorney by producing both the marginal witnesses whereas in this case admittedly no marginal witness of the alleged general power of attorney was produced by the respondents/plaintiffs in evidence without any reason which blatant non-compliance of the above mandatory provision of law leads to conveniently hold that the respondents/plaintiffs have failed to prove the execution of the alleged general power of attorney as per law. Reliance is placed on Mst. Rasheeda Begum and others v. Muhammad Yousaf and others (2002 SCMR 1089), Hafiz Tassaduq Hussain v. Muhammad Din through LRs and others (PLD 2011 SC 241) and Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187). Thus, non-production of such material witnesses is amounted to withholding of the best evidence and it would be legally presumed that had the said witnesses produced in the evidence, they would have deposed unfavourable against the respondents/plaintiffs as such pre-sumption under Article 129 (g) of Qanun-e-Shahadat Order, 1984 clearly operates against the respondents/plaintiffs. Reliance is placed on the case of Sughran Bibi v. Mst. Aziz Begum and 4 others (1996 SCMR 137) and Jehangir v. Mst. Shams Sultana and others (2022 SCMR 309). Thus, the respondents/plaintiffs could not prove the execution of alleged general power of attorney as such the subsequent transactions (sale deed etc.) made on the basis of the said general power of attorney would collapse and would have no sanctity in the eyes of law. Reliance is placed on the case of Rehmatullah and others v. Saleh Khan and others (2007 SCMR 729) and in absence of any solid foundation, the superstructure so built shall automatically crumble down. This fact has rightly been discussed and relied by the trial Court whereas the appellant Court has ignored the same while rendering the impugned judgment. As it has already been decided by the competent Court that respondents Nos.3 and 4 had no valid title / claim over the suit property, as such the respondents Nos.1 and 2/plaintiffs/subsequent purchasers have to soar and sink with their vendor/transferor and they are debarred to claim any better title. Reliance can be placed on the cases titled as Muhammad Yamin and others v. Settlement Commissioner and others (1976 SCMR 489), Bashir Ahmad and others v. Additional Commissioner with powers of Settlement Commissioner (L) and others (1983 SCMR 1199), Talib Hussain and others v. Member, Board of Revenue and others (2003 SCMR 549), Province of the Punjab through Collector, Sheikhupura and others v. Syed Ghazanfar Ali Shah and others (2017 SCMR 172) and Abdul Hamid v. M.B.R. and others (1994 CLC 1160).

4. The respondents Nos.1 and 2/plaintiffs have failed to prove the assertions made in the plaint through any unimpeachable and trustworthy evidence as such the findings of appellate Court being against the record are hereby reversed and the issue No.1 is decided against the respondents Nos.1 and 2/ plaintiff.

5. As regard the objection of learned counsel for the respondents that instant civil revision is time barred is concerned, suffice it to say that under Article 203 of the Constitution of the Islamic Republic of Pakistan read with Section 115, C.P.C, this Court being a supervisory and revisional Court has suo motu jurisdiction to look into the matter where any illegality has been committed by the Courts below and to pass an appropriate order in the interest of justice as it thinks fit even if the revision petition has been filed beyond the prescribed limitation, as settled by the Hon'ble Large Bench of the August Supreme Court of Pakistan in a case cited as Hafeez Ahmad and others v. Civil Judge, Lahore and others (PLD 2012 SC 400), wherein it is held as under:-

2025 M L D 216

[Lahore]

Before Shujaat Ali Khan, J

Irfan Mohsin---Petitioner

Versus

Additional District and Sessions Judge and others---Respondents

Writ Petitions Nos. 4265 and 12666 of 2020, heard on 12th March, 2024.

Family Courts Act (XXXV of 1964)---

---- S. 5--- Muslim Family Laws Ordinance (VIII of 1961), Ss.5 (5) & 6 (2A)--- Constitution of Pakistan, Art. 199--- Constitutional petition--- Dowery articles, value of--- Maintenance allowance--- Unauthorized entries in Nikah Nama--- Remedy--- Petitioner / husband was aggrieved of quantum of amount of dowery articles while respondent / minor assailed finding of Lower Appellate Court which reduced maintenance allowance from Rs. 8,000/- to Rs. 6,000/- per month--- Contention of petitioner / husband was that Nikah Khawan/ Registrar unauthorizedly incorporated certain entries in Nikahnama, which were not settled between the parties--- Validity--- If Nikah Khawan/Registrar mentioned un-settled conditions in Nikah Nama, petitioner could conveniently approach Deputy Commissioner or authorities of Local Government concerned for rectification in addition to putting criminal machinery in motion by filing a complaint before relevant authority--- Nikah Khawan/Registrar fell within the definition of "public servant" in terms of section 21 of Penal Code, 1860--- Petitioner / husband could not take premium of inaction on his part, as he did not refer to any material to show that he had challenged entries of Nikah Nama before the relevant forum--- Father of respondent / wife was owner of reasonable chunk of land at the time of marriage between parties and he was in a position to give dowry articles worth Rs.200,000/- to his daughter--- There was custom in the locality that daughters were given dowry articles at the time of their marriage--- High Court declined to interfere in findings of both the courts below on the point of dowry articles--- High Court set aside findings of Lower Appellate Court on the point of maintenance of respondent / minor and restored that of Trial Court--- Constitutional petition was disposed of accordingly.

Shah Din and others v. The State PLD 1984 LHR 137 and Mian Arif Mehmood v. Mst. Tanvir Fatima and another PLD 2004 Lah. 316 ref.

Ghulam Abbas for Petitioner.

Mian Qamar Zaman Mahaar for Respondents.

Dates of hearing: 6th and 12th March, 2024.

Judgment

Shujaat Ali Khan, J.--- Through this single judgment, I intend to decide W.P. No. 4265 of 2020 (this petition) as well as W.P. No. 12666 of 2020 (connected petition) having commonality of law and facts.

1. Unnecessary details apart, the facts as gleaned out from these petitions are that Mst. Naeem Fatima (hereinafter to be referred as respondent No.1) and Mst. Qurat Ul Ain Fatima (hereinafter to be referred as the minor) filed a composite suit for recovery of their maintenance; recovery of dower amount worth Rs.100,000/- as per entry against column No.14 of Nikah Nama; recovery of Rs.100,000/- as per condition stipulated against column No.19 of Nikah Nama; recovery of dowry articles worth Rs.200,000/- as per column No.16 of Nikah Nama and delivery charges of the minor worth Rs.50,000/-, against Irfan Mohsin (hereinafter to be referred as the petitioner). The learned Judge Family Court, Depalpur (learned trial Court) vide judgment and decree, dated 17.05.2019, while dismissing the claim of respondent No.1 for recovery of delivery charges as well as her maintenance, declared her entitled to recover dower amount of Rs.100,000/- in addition to Rs.100,000/- in terms of condition mentioned against column No.19 of Nikah Nama and Rs.150,000/- as price of dowry articles. Further, the minor was held entitled to recover maintenance at the rate of Rs.8,000/- per month from the date of institution of suit till her legal entitlement with 10% annual increase. Aggrieved of the judgment and decree of learned trial Court, the petitioner filed an appeal and the learned Additional District Judge, Depalpur (learned appellate Court) vide judgment and decree, dated 02.11.2019, while reversing the findings of learned trial Court to the extent of recovery of Rs.100,000/- as per condition mentioned against column No.19 of Nikah Nama, reduced the quantum of maintenance of the minor from Rs.8,000/- to Rs.6,000/- per month and upheld rest of the findings of learned trial Court. Aggrieved of judgments and decrees of learned trial Court as well as learned appellate Court the petitioner has filed this petition whereas through the connected petition, respondent No.1 has assailed the vires of judgment and decree of learned appellate Court.

2. The submissions made by Mr. Ghulam Abbas, Advocate, representing the petitioner, can be summed up in the words that since it was second marriage of respondent No.1 with the petitioner, no dowry articles were given at the time of her marriage; that though in her plaint, respondent No.1 averred that her father, being an agriculturist, was enjoying sound financial position at the time of her marriage but she did not produce any document in that regard, thus, her stance remained unproved; that credibility of the witnesses, produced by respondent No.1, stands shattered from the fact that they claimed that at the time of marriage respondent No.1 was bachelor but as a matter of fact she was divorcee; that since the couple did not shift to the house of the petitioner rather they celebrated first night of their wedding in the house of paternal uncle of the petitioner, no dowry articles were given to respondent No.1 at the time of her marriage; that both the Courts below have relied upon the entries against column No.16 of Nikah Nama to believe that the dowry articles were given to respondent No.1 but said column is meant for anything which is given in the shape of land etc. in lieu of dower in addition to cash, hence contents of said column were erroneously relied upon by the courts below; that as a matter of fact at the time of marriage, all columns of Nikah Nama were not filled in rather the Nikah Khawan/Registrar got signed and thumb marked the same with blank columns and later on, he, in connivance with the parents of bride, introduced certain conditions which were never settled between the parties; that mala fide on the part of Nikah Khawan/Registrar is evident from the fact that during evidence he stated in clear-cut words that his licence was never cancelled but the documents produced by the petitioner speak otherwise; that Nikah Khawan/Registrar was summoned by the Court (who was wrongly marked as DW-3 instead of CW) but respondent No.1 did not cross-examine him to unveil the truth simply for the reason that she, being beneficiary of interpolation in the Nikah Nama, was not ready to unearth the truth; that admission on the part of the Nikah Khawan/Registrar that Nikah Nama was deposited with the Secretary Union Council after seventeen days of marriage stands proof of the fact that he tinkered with entries of Nikah Nama from the date of marriage till deposit of the same in the Union Council; that bona fide of the petitioner is evinced from the fact that he filed application before the trial court for summoning of the Secretary Union Council as witness but the same was dismissed by learned trial Court on the ground that after recording statement of Nikah Khawan/Registrar, there was no need for examination of the Secretary Union Council concerned; that since the petitioner has been paying maintenance of the minor without any fail, no ill-will can be attributed to him and that the petitioner is ready to continue payment of maintenance of the minor as per judgment and decree of the learned appellate Court.

3. Conversely, learned counsel appearing on behalf of the respondents, while opposing the submissions made by learned counsel for the petitioner, states that since it was mentioned against column No.16 of Nikah Nama that dowry articles worth Rs.2,00,000/- were given to respondent No.1, the petitioner being signatory of said document, could not escape his liability to return the same or to pay its alternate price to respondent No.1; that there is no material difference in entries of Nikah Namas, referred by learned counsel for the petitioner, thus, the same cannot be used to the dis-interest of respondent No.1; that when the petitioner himself admitted in evidence that father of respondent No.1 was an agriculturalist by profession, it did not lie in his mouth to claim that her parents did not enjoy sound financial position at the time of marriage; that on the one hand stance of the petitioner is that no dowry articles were given to respondent No.1 but on the other, during cross-examine, he while taking U-turn stated that the dowry articles, given by the parents of respondent No.1, were returned to her; that the petitioner, being owner of about 800-kanals of land, can afford maintenance of the minor at much higher rate as decreed by learned appellate Court; that since the petitioner was dealt with leniently by the learned trial Court, no further leniency can be shown by this Court in exercise of its constitutional jurisdiction vested under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973; that the petitioner is maintaining children from his first wife in a proper manner and the respondents would be satisfied if similar treatment is given to the minor; that the petitioner while appearing as DW-1 admitted that he put his signatures on the Nikah Nama in English, thus, it cannot be believed that such literate person signed the same without entries against all columns of Nikah Nama; that a cursory glance over the Nikah Nama, referred by learned counsel for the petitioner, shows that nowhere respondent No.1 claimed herself to be a bachelor rather she was mentioned as divorcee in the Nikah Nama, thus, the petitioner cannot take premium of any minor discrepancy in the statements of the PWs; that mala fide on the part of the petitioner is established from the fact that certain amount on account of maintenance of the minor is due against him and that the quantum of maintenance fixed by learned appellate Court is hardly sufficient to meet with the expenses of the minor especially her educational expenditures.

4. While exercising his right of rebuttal, learned counsel for the petitioner submits that the intention of the petitioner to produce various copies of Nikah Nama is to establish that not only the names of the witnesses were different on all of them but also entries of said Nikah Namas were not filled in at the time of marriage rather the same were filled in by the Nikah Khawan/Registrar at some subsequent stage in connivance with parents of respondent No.1 and that stance of respondent No.1 that her parents enjoyed sound financial status stands negated from her plea that now-a-days she is earning her bread and butter by working as housemaid in Lahore city inasmuch as according to custom in the locality where the parties are residing, if any daughter is divorced/deserted by her husband, her parents or brothers use to maintain her.

5. I have heard learned counsel for the parties at considerable length and have also gone through the documents, annexed with this petition.

6. Firstly, taking up the question as to whether dowry articles were given to respondent No.1 or not, I have noted that though in the written statement the petitioner claimed that since it was second marriage of respondent No.1, no dowry articles were given but said stance of petitioner stands negated from the following portion from his affidavit-in-evidence (Exh.D-1):

Further, with a view to improve his case, the petitioner during his cross-examination introduced a new story that the dowry articles given to respondent No.1 were taken back by her parents. In this regard, following portion from the statement of petitioner can be referred with convenience:-

Moreover, Ghulam Nabi (DW-2) in his affidavit-in-evidence (Ex.D-2) averred as under:

However, the said witness during his cross-examination, while responding to a question relating to return of dowry articles stated as under: -

A conjunctive reading of the afore-quoted portions from the statements of DW-1 and DW-2 renders its crystal clear that dowry articles were given to respondent No.1 notwithstanding the entry against column No.16 of Nikah Nama.

1. I am in agreement with the learned counsel for the petitioner that Column No.16 of Nikah Nama is meant for mentioning of anything which is given to a bride as part of dower in addition to cash in terms of Column No.13 of Nikah Nama but when the petitioner himself admitted that dowry articles, given to respondent No.1, were either stolen by her parents or they received the same back, adverse opinion cannot be formed against respondent No.1 simply for the reason that factum of dowry articles was mentioned against an irrelevant column of Nikah Nama.

2. According to section 6(2A) of the Muslim Family Laws Ordinance, 1961, the Nikah Registrar or the person who solemnizes a Nikah shall accurately fill all the columns of the nikahnama form with specific answers of the bride or the bridegroom. Moreover, according to section 5(5) of the said Ordinance, the form of nikahnama, the registers to be maintained by Nikah Registrars, the records to be preserved by Union Councils, the manner in which marriages shall be registered and copies of nikahnama shall be supplied to the parties, and the fees to be charged therefor, shall be such as may be prescribed. If Nikah Khawan/Registrar fails to perform his duties diligently instead of taking any action against any party, Nikah Khawan/Registrar should be held accountable as held by this court in the case reported as Shah Din and others v. The State (PLD 1984 LHR 137) relevant part whereof reads as under:-

"7. I feel here mentioning an important point having far reaching consequences. The incidents giving rise to proceedings like the one in hand can be greatly reduced if the Nikah Registrars appointed under the Muslim Family Laws Ordinance, 1961, instead of simply filling the various columns of the Nikahnama, in routine, realize that the duty that they are required to perform is very sacred because rights to succession, maintenance, dower, divorce, legitimacy of children and several other rights flow from a valid marriage. As public servants which essentially they are, they should demonstrate more sense of responsibility before authenticating the Nikah by making proper enquiries as to the competency of the parties to understand the nature of their act, their ages and whether or not they are so acting of their free will and without any compulsion.

In our society, the girl is normally given in marriage by her parents and in their absence by the nearest blood relation and that too mostly at her ordinary place of residence. If this solemn ceremony is performed by the persons not answering the above description and at a place other than the ordinary place of residence of the girl in closed doors under mysterious circumstances a heavy duty is cast on the Nikah Registrars to thoroughly confirm and probe into the circumstance under which the marriage is being solemnized before authenticating the same. If they fail, they can, to a grant (sic) extent, be held responsible for the complications that follow in addition, to running the risk of being involved in litigation, both civil and criminal."

Further, this Court, while highlighting the violation of the SOPs/Policy issued by the Director General, Local Government and its repercussions inter alia observed as under:-

"5. It may further be appropriate to observe that although in compliance with the above noted directions issued by this Court, the Directorate General LG&CD Punjab, Lahore has issued SOPs vide Notification No.LG&CD/AD(CD)47/2020/Court Cases, dated 27.08.2020, but still the violations of the above noted provisions, directions and SOPs are being made by the Nikah Khawan/Nikah Registrars and others. The Nikah Registrars instead of filling in, each column of the Nikahnama with specific reply/answer of the parties to the marriage, are still continuing with their practice of placing single vertical line against all or more than one column or leaving the columns blank in the Nikah Nama, rendering themselves liable for initiation of proceedings against them under the law. After perusing the Nikah-nama (Annexure-A) appended with the file, it evinces that against most of the columns of the Nikahnama, the Nikah Registrar has opted to place single vertical line and had also left some of the columns blank. He has not accurately fill in the same with requisite/specific reply of bride or the bridegroom, which is clear-cut violation of the aforesaid directions issued by this Court and the SOPs issued by the Directorate General LG and CD Punjab, Lahore. Therefore, the matter is referred to the Chief Officer, Burewala, District Vehari for initiation of penal proceedings against the Nikah Registrar/ delinquent, after affording an opportunity of hearing to him and report thereof shall reach to this Court through D.R Judicial within a period of one month, after receipt of copy of this order."

Though, the direction/observation of this Court does not admit any kind of ambiguity but even then public-at-large is facing unnecessary litigation on account of inefficiency on the part of the Nikah Khawan/Registrar towards completion of entries in Nikah Nama inviting stern action against the hoodlums.

1. Now coming to the plea of the petitioner that since certain conditions, which were not settled between the parties, were incorporated by the Nikah Khawan/Registrar in Nikah Nama, I am of the opinion that if the petitioner was of the view that the Nikah Khawan/Registrar mentioned un-settled conditions in the Nikah Nama, he could conveniently approach the Deputy Commissioner or the authorities of the Local Government concerned for rectification in addition to putting the criminal machinery in motion by filing a complaint before the relevant authority as a Nikah Khawan/Registrar falls within the definition of "public servant" in terms of section 21 of Pakistan Penal Code. Though learned counsel for the petitioner addressed the Court at certain length but has not referred to any material to show that the petitioner challenged the entries of Nikah Nama before relevant forum, thus he cannot take premium of inaction on his part.

2. Now the next question which boils down for determination by this Court as to whether dowry articles given to respondent No.1 were returned to her by the petitioner or not. Initially, the onus to prove that dowry articles were given to her was on the shoulders of respondents No.1 but when DW-1 and DW-2 stated that dowry articles, given to respondent No.1, were either stolen or received back by her parents, it was responsibility of the petitioner to prove that dowry articles given to respondent No.1 were returned. While replying to a question as to whether they were equipped with any proof relating to return of dowry articles, DW-1 and DW-2 answered in negative. It is well settled by now that if an oral assertion of a witness is not corroborated by relevant document, it is not safe to rely upon such oral assertion while deciding lis between the parties.

3. It is important to mention over here that while entering in witness box as DW-1, the petitioner, during cross-examination, admitted that Muhammad Khan, father of respondent No.1, was an agriculturist by profession. According to the custom prevalent in our society, families having agriculturist background, use to give dowry articles to their daughters at the time of marriage irrespective of the fact as to whether it was her first or second marriage. Further, learned counsel for the petitioner has not been able to convince this Court as to why dowry articles were not given to respondent No.1 rather his stance was that as first wedding night was solemnized in the house of paternal uncle of the petitioner, no dowry articles were given at the time of marriage. In this regard, I do not see eye-to-eye-with learned counsel for the petitioner for the reason that according to own showing of the petitioner he had earlier marriage, thus, spending of first night of marriage in the house of his paternal uncle is understandable, thus, said fact cannot be used to believe that dowry articles were not given to respondent No.1.

4. Now coming to the question regarding the quantum of dowry articles, this Court is of the view that as father of respondent No.1 was owner of reasonable chunk of land at the time of marriage between the parties, it cannot be believed that he was not in a position to give dowry articles worth Rs.2,00,000/- to his daughter. It has also not specifically been denied by learned counsel for the petitioner that there is custom in the locality that daughters are given dowry articles at the time of their marriage. Thus, findings of both the courts below on the point of dowry articles do not warrant any interference by this Court.

5. Now coming to the quantum of maintenance of the minor, I am of the view that when a person enjoys bliss of more than one wife he is bound to maintain his wives and children in a befitting manner. Reliance in this regard can be placed on the case reported as Mian Arif Mehmood v. Mst. Tanvir Fatima and another (PLD 2004 Lahore 316) wherein the liability of a husband having more than one wife has been dilated upon in the following manner: -

"10. This brings me to the most important question involved in this petition, viz. the quantum of maintenance of Rs.8,000 per mensem awarded in favour of the respondent. Learned counsel for the petitioner has submitted that it is unreasonable. According to him, the intention of the law is to provide maintenance against starvation and consequent vagrancy, and it had never been the intendment of the Legislature to provide anything more than food, clothing and bedding. The contention has no force. Section 9 of the Muslim Family Laws Ordinance, 1961 reads as follows:--

"9.Maintenance.--(1) If any husband fails to maintain his wife adequately or where, there are more wives than one fails to maintain them equitably, the wife, or all or any of the wives may in addition to seeking any other legal remedy available, apply to the Chairman who shall constitute an Arbitration Council to determine the matter, and the Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband.

(2) A husband or' wife may in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision of the certificate, to the Collector, concerned and his decision shall be final and shall not be called in question in any Court.

(3) Any amount payable under subsection (1) or (2) if not paid in due time shall be recoverable as arrears of land revenue."

A plain reading of section 9 (ibid) means that a husband has to maintain, his wife "adequately" and if he has more wives than one, he must, maintain them "equitably". Therefore, the maintenance should not be bare minimum sustenance allowance but a convenient provision in consonance with what the husband can afford as also what are the needs of the wife. It is not the meeting of the mere wants by way of sustenance because in these days of inflationary trend and the constant rise in the cost of living index, it is bound to work hardship on the wife. A person taking on the responsibility of marriage has to maintain his wife, and it is in all cases necessary to ascertain the visible means and the earning capacity of the husband. Therefore, in fixing the maintenance, the Court has to take into consideration not only the needs of the wife but also the paying capacity and circumstances of the husband who is liable to pay maintenance. Whereas to insist upon conformance to the principle of bare minimum sustenance allowance, particularly in a case where the husband is in affluent circumstances, would be not only inequitable but, unjustified, if upon consideration of visible income of the husband, he is found to be able to pay a little more to keep up the wife going on an, even keel, it cannot be said that the Court would thereby be pampering a wife who seeks to live apart from the husband. However, the maintenance allowance should neither be too heavy so as to tempt the wife to stay away from her husband, neither too meager so as to leave her high and dry. In my opinion, the balance has to be struck. The amount of maintenance payable to a wife should not be so small as to simply keep her body and soul together. It has to be an amount which could be enough to keep her at least financially in comfort, particularly in these days of high and rising prices. In regard to determining what is; required by the wife, the Court has to steer clear of two extremes viz. it must not give maintenance to a wife which would keep her in luxury and would make judicial separation profitable, and also impede any future reconciliation. It must also steer clear of the other extreme, viz. penuriousness. Steering clear of these two extremes the Court must see whether the amount to be fixed as maintenance would be liberal or illiberal. If this is kept in view, may be the couple will see the error of their ways and might get reconciled and lead a happy domestic life, unless they have already parted ways, as is the case here.

2025 M L D 245

[Lahore]

Before Farooq Haider, J

Muhammad Arif Zaman and another---Appellants

Versus

The State and another---Respondents

Criminal Appeal No. 909 of 2012, decided on 15th October, 2024.

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

----Ss. 420, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5---Cheating and dishonestly inducing someone to deliver property, forgery for the purpose of cheating, use of a forged document as genuine, criminal misconduct---Appreciation of evidence---Accused were charged for committing fraud by preparing forged, fictitious and fabricated agreement to sell and grabbing a sum of Rs. 10,50,000/- from the complainant---Complainant had admitted that agreement to sell was executed with him by appellant No.2 as well as proclaimed offender not in the capacity of full owner of the land rather as purchaser of the land on the basis of agreement to sell, executed between appellate No. 2 and two others---However, it was duty of the prosecution to prove that appellant No.2 was not owner of any land there but prosecution did not produce any evidence in that regard---Moreover, it was not the case of the prosecution that appellant No.2 while claiming himself as full owner of the land made statement to Revenue Patwari regarding sale of the land to the complainant or any other person on the asking of the complainant or any mutation of the land was entered in the revenue record on the statement of appellant No.2 as owner---In both the impugned mutations, appellate No. 2 was not even signatory in any capacity---Furthermore, as per agreement to sell, if appellant No.2 failed to transfer land to the complainant, then remedy was before Civil Court for specific performance of the same or paying the double amount of the received earnest money---Therefore, prosecution had failed to prove the charge against appellant No.2---Appeal against conviction to the extent of appellant No.2 was allowed, in circumstances.

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

----Ss. 420, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5---Cheating and dishonestly inducing someone to deliver property, forgery for the purpose of cheating, use of a forged document as genuine, criminal misconduct---Appreciation of evidence---Accused were charged for committing fraud by preparing forged, fictitious and fabricated agreement to sell and grabbing a sum of Rs. 10,50,000/- from the complainant---Record showed that appellant No.1, who was acting as revenue Patwari of the relevant area Chak, recorded Rapt No.571 dated 18.06.2006 in Roznamcha Waqiati; entered mutation No.9981 on 18.02.2006 regarding land in favour of Proclaimed Offender; he also entered mutation No.11223 and mutation No.11256 on the statement of Proclaimed Offender in favour of one "MS"---Perusal of said rapt revealed that it was incomplete, vague as well as dubious because neither parentage of Proclaimed Offender nor amount of sale was mentioned in the same---Similarly, measurement of the land i.e. how much land had been sold and handing over of the possession had also not been mentioned in the same---With reference to said incomplete rapt, mutation No.9981 was entered in the relevant register on 18.02.2006 by appellant No.1 but it was never sanctioned/attested by any Revenue Officer and for the said reason same was of no value---Therefore, appellant No.1 was having full knowledge of incomplete/dubious feature/aspect of the rapt being its author but he used the same and on the basis of said incomplete/dubious rapt, knowingly entered mutation No.9981 on 18.02.2006 in favour of Proclaimed Offender, which remained unsanctioned/unattested and was of no value but even then, he knowingly entered mutation bearing No(s).11223 and 11256 on the statement of Proclaimed Offender on the basis of said unsanctioned/unattested mutation No.9981---Both mutation No(s).11223 and 11256 were subject matter of the case---Therefore, prosecution had established that appellant No.1 knowingly committed forgery for the purpose of cheating, used forged document as genuine and also being public servant committed "criminal misconduct"---Appeal against conviction to the extent of appellate No. 1 was dismissed, in circumstances.

Kamran Shah v. Mst. Ghulam Fatima and 3 others 1988 CLC 1812 rel.

Osama Zaman for and with the appellants (appellants have been identified by their counsel).

Rana Muhammad Shafique, Deputy Prosecutor General along with Muhammad Younas, A.S.I. for the State.

Nemo. for the Complainant.

Date of hearing: 15th October, 2024.

Judgment

Farooq Haider, J.---This appeal has been filed by Muhammad Arif Zaman and Zulfiqar Ali (appellants) against the judgment dated: 10.05.2012 passed by learned Special Judge Anti-Corruption, Faisalabad Division, Faisalabad/trial court whereby in case arising out of FIR. No.245/2009 dated: 05.06.2009 registered under Sections 420, 468, 471, P.P.C. {subsequently, offence under Section 5 (2) of the Prevention of Corruption Act, 1947 was also added during investigation of the case} at Police Station: City Toba Tek Singh, appellants have been convicted and sentenced as under:-

MUHAMMAD ARIF ZAMAN

| | | | --- | --- | | Conviction | Sentence | | Under Section: 420 P.P.C. | "Two Year's Rigorous Imprisonment" with fine of Rs.10,000/- and in default thereof to further undergo S.I. for two months. | | Under Section: 468 P.P.C. | "Two Year's Rigorous Imprisonment" with fine of Rs.10,000/- and in default thereof to further undergo S.I. for two months. | | Under Section: 471 P.P.C. | "Two Year's Rigorous Imprisonment" with fine of Rs.10,000/- and in default thereof to further undergo S.I. for two months. | | Under Section: 5 (2) of PCA, 1947 | "Two Year's Rigorous Imprisonment" with fine of Rs.10,000/- and in default thereof to further undergo S.I. for two months. | | Under Section: 9 of Criminal Law Amendment Act, 1958 | Fine of Rs. 3,50,000/- payable to the complainant. |

ZULFIQAR ALI

| | | | --- | --- | | Conviction | Sentence | | Under Section: 420, P.P.C. | "One Year Rigorous Imprisonment" with fine of Rs.10,000/- and in default thereof to further undergo S.I. for two months. | | Under Section: 468, P.P.C. | "One Year Rigorous Imprisonment" with fine of Rs.10,000/- and in default thereof to further undergo S.I. for two months. | | Under Section: 471, P.P.C. | "One Year Rigorous Imprisonment" with fine of Rs.10,000/- and in default thereof to further undergo S.I. for two months. | | Under Section: 9 of Criminal Law Amendment Act, 1958 | Fine of Rs. 3,50,000/- payable to the complainant. |

Aforementioned sentences were ordered to run concurrently and benefit of Section: 382-B Cr.P.C. was also extended to the appellants/convicts.

It is pertinent to mention here that Muhammad Akhtar accused became absent after recording of his statement under Section: 342, Cr.P.C. therefore declared as proclaimed offender.

1. Brief facts of the case in hand are that Zafar Yaseen (complainant/ PW-2) moved application (Ex.PT) for registration of case to Zahid Hussain S.I. (PW-5) while mentioning therein that accused persons namely Muhammad Akhtar, Zufiqar Ali resident of House No.234, Street No.2, Mohallah Islampura, Toba Tek Singh and accused Arif Zaman Patwari resident of Chak No.320-GB , in connivance as well as consultation with each other, with mala fide intention while deceitfully committing fraud and forgery, prepared a forged, fictitious and fabricated Fard Jamabandi pertaining to the land bearing Khewat No.642/634, Khatooni No.750, measuring: 2-K, 0-M (out of total measuring 22-K, 16-M) pertaining to two plots one Kanal each, reference to Mutation No.11223 dated: 12.02.2008 in connection with oral sale of land measuring 10-Marla; copy of Daily Diary No.785 dated: 12.02.2008 and Mutation No.11256 dated: 25.02.2008 situated at Chak No.327/JB, Tehsil and District: Toba Tek Singh regarding the agreement to sell dated: 05.03.2007, whereby they agreed to sell land @ Rs.52,500/- per Marla and received Rs.600,000/- as earnest money @ Rs.300,000/- per Kanal whereas remaining amount of sale consideration of Rs.7,50,000/- was received in the office of Arif Zaman Patwari situated at Faiz Colony, Toba Tek Singh in presence of Hafiz Abdul Razzaq, Muhammad Umar and misappropriated the amount with the pretext to sell the lands; upon completion of period of agreement it came into knowledge of the complainant that Fard Jamabandi is a forged, fictitious and fabricated document; accused persons are not owner of the land; they in consultation with each other having mala fide intention, cheating and fraud in their hearts, grabbed a sum of Rs.10,50,000/- from the complainant, which was as a trust with them till completion of agreement and the same had been misappropriated with mala fide intention; the complainant along with witnesses went to the accused persons, protested and demanded return of his amount, whereupon, they while confessing their guilt sought pardon and promised to return the amount but now they have flatly refused to do so; upon which, the complainant himself paid amount of agreement to sell of Rs.10,50,000/- to Muhammad Shafique; when demanded back said amount from the accused persons, they threatened for involving him in false cases.

On the basis of said application of Zafar Yaseen (complainant/ PW-2), case vide FIR. No.245/2009 (Ex.PT/1) dated: 05.06.2009 under Sections: 420, 468, 471, P.P.C. was registered at Police Station: City Toba Tek Singh.

After investigation, report under section 173, Cr.P.C. was submitted in the Court; Muhammad Arif Zaman, Zulfiqar Ali (appellants) and Muhammad Akhtar (now P.O.) were put for trial; charge under Sections: 420, 468, 471, P.P.C. read with Section: 5 (2) of the Prevention of Corruption Act, 1947 was framed against them to which they pleaded not guilty and claimed trial. Prosecution during trial examined eleven witnesses whereas Mushtaq Hussain, Assistant Commissioner, Toba Tek Singh was examined as Court Witness (CW-1); thereafter statements of both the appellants as well as of Muhammad Akhtar were recorded under Section: 342 Cr.P.C. on 03.08.2011 wherein they refuted case of the prosecution against them; the appellants did not opt to record their statements under Section: 340(2), Cr.P.C. however Muhammad Akhtar (now P.O.) produced some documents in his defence. Thereafter, an application was moved on behalf of the complainant for producing further evidence which was allowed on 28.09.2011; Muhammad Akhtar accused became absent and was declared as proclaimed offender; Statements of Abid Hussain Patwari as PW-12 and Ali Gardawar as PW-13 were recorded; both the appellants were again examined under Section: 342, Cr.P.C. on 20.03.2012 wherein they refuted the allegations levelled against them; they did not opt to appear under Section: 340(2), Cr.P.C. however documents Ex.DK and Ex.DL were produced in defence on behalf of Arif Zaman (appellant No.1). Trial court after conclusion of trial has convicted and sentenced the appellants as mentioned above through impugned judgment dated: 10.05.2012.

1. Learned counsel for the appellants has submitted that convictions recorded against and sentences awarded to the appellants through impugned judgment are against the 'law and facts' and result of non-reading/misreading of evidence. Learned counsel for the appellants finally prayed for acquittal of the appellants.

2. Conversely, learned Deputy Prosecutor General has supported the impugned judgment and prayed for dismissal of the appeal.

3. Arguments heard. Record perused.

4. Case of the prosecution against Zulfiqar Ali (appellant No.1) is that he and Muhammad Akhtar (accused now P.O.) executed Iqrar Nama (agreement to sell/Ex.PW) with Zafar Yaseen (complainant/ PW-2) regarding two plots measuring 1-Kanal each while receiving Rs.600,000/- as earnest money; subsequently, Muhammad Akhtar accused in furtherance of said Iqrar Nama (agreement to sell/Ex.PW) got entered two mutations bearing No(s).11223 dated: 12.02.2008 (Ex.PG) and 11256 dated: 25.02.2008 (Ex.PJ) in revenue record in favour of one Muhammad Shafique vide oral statement qua sale on the basis of Mutation No.9981 (Part Patwar/Ex.PE and Part Sarkar/ Ex.P.E/1) which was entered on the basis of Rapt No.571 (Ex.PF).

So far as Iqrar Nama (Agreement to Sell/Ex.PW) is concerned, it is relevant to mention here that original of the same was neither produced nor got exhibited; so much so that it was not got compared with copy of the same, which was exhibited in the Court; even any material has not been brought on the record to show that original has been destroyed or not available in order to justify production of secondary evidence i.e. copy of the same and in this regard, cases of "Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others" PLD 2021 SC 715 and "Mst. Khurshid Begum and 6 others v. Chiragh Muhammad" 1995 SCMR 1237 can be advantageously referred; Even any notary public who attested Iqrar Nama (Agreement to Sell/Ex.PW) has not been produced as witness by the prosecution; apart from this, Zulfiqar Ali (appellant No.2) merely posed himself as having purchased the land and not expressly mentioned therein that he is full owner of the land and same wording was used by the complainant (PW-2) himself in the agreement (Ex.PX) which he executed with aforementioned Muhammad Shafique and he (complainant) even admitted said facts including the fact that Zulfiqar Ali (appellant No.2) and Muhammad Akhtar (since P.O.) executed Iqrar Nama (Ex.PW) with him on the basis of Iqrar Nama, which they made with Yar Muhammad etc. regarding purchase of the land and relevant portion of his statement in this regard is scanned below: -

Similarly, relevant portion of the statement of Abid Sagheer, Inspector (PW-10) on the subject is also scanned as under: -

So, it has been admitted by the complainant (PW-2) that Iqrar Nama (Agreement to sell/Ex.PW) was executed with him by Zulfiqar Ali (appellant No.2) as well as Muhammad Akhtar (accused now P.O.) not in the capacity of full owner of the land rather as purchaser of the land and on the basis of agreement to sell, executed between Zulfiqar Ali, Muhammad Akhtar and Yar Muhammad, etc.; it was duty of the prosecution to prove that Zulfiqar Ali (appellant No.2) was not owner of any land there but prosecution did not produce any evidence in this regard. It is not the case of the prosecution that Zulfiqar Ali (appellant No.2) while claiming himself as full owner of the land made statement to Revenue Patwari regarding sale of the land to the complainant or any other person on the asking of the complainant or any mutation of the land was entered in the revenue record on the statement of Zulfiqar Ali (appellant No.2) as owner; so much so, in the both impugned mutations No(s) 11223 (Ex.PG) and 11256 (Ex.PJ), Zulfiqar Ali is not even signatory in any capacity. Furthermore, as per Iqrar Nama (Agreement to sell/Ex.PW), if Zulfiqar Ali (appellant No.2) fails to transfer land to the complainant, then remedy is before Civil Court for specific performance of the same or paying the double amount of the received earnest money; in this regard, relevant portion of Iqrar Nama (Agreement to sell/Ex.PW) is reproduced below: -

Therefore, prosecution has been failed to prove the charge against Zulfiqar Ali (appellant No.2) and there is no need to discuss defence version qua him, hence, instant appeal to the extent of appellant No.2 is allowed; resultantly, convictions recorded and sentences awarded to appellant No.2 through impugned judgment are hereby set-aside; he is acquitted of the charge; he is on bail after suspension of execution of his sentence by this Court vide order dated: 20.06.2012 passed in Crl. Misc. No.01/2012, his surety stands discharged from the liability of bail bonds.

1. Before discussing the case of Muhammad Arif Zaman (appellant No.1), it is relevant to mention here that while deciding the criminal case, approach of the Court must be inquisitorial instead of adversarial; furthermore, in the case of forgery, cheating and particularly by the accused who being official is also holder of the relevant record, it is not easy to find out the direct evidence because such officials when become cheater, they make planning, manage the atmosphere/material, try their level best to conceal the relevant incriminating material and usually said forgery comes to the knowledge of the affectee at belated stage and it is more difficult to find out evidence at said stage due to passage of time; therefore, in such offences, relevant material in the form of documents/transactions can be given due weight while appreciating the evidence in the light of maxim "Res ipsa loquitur" i.e. "the thing speaks itself" instead of emphasizing the oral/direct evidence.

2. So far case of Muhammad Arif Zaman (appellant No.1) is concerned, he was acting as revene Patwari of the relevant area Chak No.328 "{Jeem Bay }"; he while acting as Patwari recorded Rapt No.571 dated: 18.06.2006 (Ex.PF) in Roznamcha Waqiati, entered mutation No.9981 (Ex.PE, Ex.PE/1) on 18.02.2006 regarding land in favour of Muhammad Akhtar (accused since P.O.); he also entered mutation No.11223 (Ex.PG=Ex.PN) dated: 12.02.2008 and mutation No.11256 (Ex.PJ=Ex.PR) on the statement of Muhammad Akhtar (accused since P.O.) in favour of one Muhammad Shafique son of Sher Muhammad; in this regard, statement of Ghulam Murtaza, Patwari (PW-4) and recovery memos. (Ex.PC. Ex.PL and Ex.PS) can be safely referred whereas relevant portion of Ex.PL is hereby scanned below: -

Muhammad Arif Zaman (appellant No.1) recorded aforementioned Rapt No.571 dated: 18.06.2006 (Ex.PF) in favour of Muhammad Akhtar, which is hereby scanned below: -

Perusal of said rapt reveals that it was incomplete, vague as well as dubious because neither parentage of Muhammad Akhtar nor amount of sale was mentioned in the same; similarly, measurement of the land i.e. how much land has been sold and handing over of the possession has also not been mentioned in the same. And with reference of said incomplete rapt, mutation No.9981 was entered in the relevant register on 18.02.2006 by appellant No.1 but it was never sanctioned/attested by any revenue officer and for the said reason same was of no value; in this regard, case of "Karam Shah v. Mst. Ghulam Fatima and 3 others" (1988 CLC 1812) can be safely referred and relevant portion of the same from its paragraph No.2 is hereby reproduced as under: -

"An attested mutation may carry a rebuttable presumption of truth but an unattested mutation entered simply by a Patwari has no significance, importance or value in the eyes of law"

(emphasis added)

Therefore, Muhammad Arif Zaman (appellant No.1) was having full knowledge of incomplete/dubious feature/aspect of the rapt (Ex.PF) being its author but he used the same and on the basis of said incomplete/dubious rapt (Ex.PF), knowingly entered mutation No.9981 (Ex.PE, Ex.PE/1) on 18.02.2006 in favour of Muhammad Akhtar, which remained unsanctioned/unattested and was of no value but even then, he knowingly entered mutation bearing No(s).11223 (Ex.PG=Ex.PN) and 11256 (Ex.PJ=Ex.PR) on the statement of Muhammad Akhtar (accused, now proclaimed offender) on the basis of said unsanctioned/unattested mutation No.9981. Both mutation No(s).11223 and 11256 (mentioned above) are subject matter of this case. Therefore, prosecution has established that Muhammad Arif Zaman (appellant No.1) knowingly committed forgery for the purpose of cheating, as well as cheating, used forged document as genuine and also being public servant committed "criminal misconduct".

Now coming to the defence version of appellant No.1; relevant portions of his answer to question No.10 during his statement recorded under Section: 342, Cr.P.C. are hereby reproduced: -

"I am not part to the agreement Ex-PW dated: 05.03.2007 between the complainant and Muhammad Akhtar and Zulfiqar accused. There is no evidence on record regarding any payment; neither on 05.03.07 nor on its implementation dated i.e. 01.08.2007 relating to my intervention.

2025 M L D 271

[Lahore]

Before Ch. Muhammad Masood Jahangir, J

Zahid Mahmood and another---Petitioners

Versus

Sabir Hussain---Respondent

Criminal Revision No. 51659 of 2022, decided on 6th September, 2022.

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

----Arts. 17 & 79---Specific Relief Act (I of 1877), S. 12---Suit for specific performance---Agreement-to-sell---Execution---Proof---Assertion of the plaintiffs was that transaction of sale was settled with the defendant / respondent and agreement and receipt were scribed, yet said stance was strongly controverted by the latter while raising serious allegations with regard to its genuineness as well as transaction detailed therein--- Plaintiffs were concurrently non-suited---Validity---Onus was upon the petitioners / plaintiff to prove the alleged sale and due construction of their hub documents per scheme of law---As alleged agreement and receipt (exhibited by plaintiffs) involved future obligation and financial liability, thus same were to be executed under mandate of Art. 17 of the Qanun-e-Shahadat, 1984 ('the Order 1984') and it was sine qua non for the beneficiary/petitioners to prove the same according to mode provided in Art. 79 of the Order, 1984---Although said two documents at the time of its scribe per spirit of Art. 17 of the Order, 1984 were attested by two persons being marginal witnesses, yet surprisingly ,one of them despite availability was not examined, thus compulsory requirement of Art. 79 was not followed, which requirement is mandatory and without strict compliance thereof any such document (entailing future obligation or financial liability) cannot be used in evidence---Nothing short of two attesting witnesses can even be imagined for proving sale contract, besides testimony of scribe cannot be used to consider it as statement of marginal witness---No material irregularity/ illegality as well as jurisdictional defect or mis-reading of evidence was found in the impugned judgments of two Courts below; thus, no case of interference was made out---Revision filed by plaintiffs, being merit-less, was dismissed in limine.

Mst. Rasheeda Begum and others v. Muhammad Yousaf and others 2002 SCMR 1089; Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241; Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044; Falak Sher v. Province of Punjab and others 2017 SCMR 1882 and Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others 2022 SCMR 933 ref.

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

----Arts. 17 & 79---Specific Relief Act (I of 1877), S. 12---Suit for specific performance---Agreement-to-sell---Execution---Proof---Second marginal witness, non- examining of ---Claim of the plaintiffs/petitioners was that transaction of sale was settled with the defendant / respondent and agreement and receipt were scribed, yet said stance was strongly controverted by the latter while raising serious allegations with regard to its genuineness as well as transaction detailed therein---Plaintiffs were concurrently non-suited---Contention of the petitioners/ plaintiffs was that second marginal witness was not examined as he was closely related to the alleged vendor (defendant/respondent) and if produced, he would have deposed in his favour, thus for such risk his withholding was justified---Validity---Mandatory provisions of law has to be complied and fulfilled and only for the reason or the perception that such attesting witness if examined may turn hostile does not absolve the concerned party of its duty to follow the law and allow the provisions of Arts. 17 & 79 the Qanun-e-Shahadat, 1984, relating to hostile witness to take its own course---Thus, for any risk, mandatory requirement of law cannot be avoided---No material irregularity/illegality as well as jurisdictional defect or mis-reading of evidence was found in the impugned judgments of two Courts below; thus , no case of interference was made out---Revision filed by plaintiffs , being merit-less, was dismissed in limine.

Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others PLD 2011 SC 241 ref.

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

---- Arts. 17 & 79 --- Specific Relief Act ( I of 1877 ), S. 12 --- Suit for specific performance --- Agreement-to-sell --- Execution --- Proof --- Comparison of signatures --- Scope and effect --- Assertion of the plaintiffs/petitioners was that transaction of sale was settled with the defendant / respondent and agreement and receipt were scribed, yet said stance was strongly controverted by the latter while raising serious allegations with regard to its genuineness as well as transaction detailed therein--- Plaintiffs were concurrently non-suited --- Contention of the petitioners / plaintiffs was that as per desire of the very defendant /respondent, his signatures over alleged agreement and receipt were compared with through an expert, thus no further proof was required to establish their construction as well as veracity--- Validity ---Record revealed that though the disputed documents were referred to the Forensic Lab for comparison, which after some drill-work submitted positive Report, but admittedly its maker was not called for to prove the same, which per se was not admissible and was rightly ignored from being taken into consideration by the fora below---Moreover, it is always risky to base the findings of genuineness of writing or signature on expert's opinion, because such like report cannot be taken as conclusive proof--- Even otherwise, a document not part of judicial record can only be proved by examining direct affirmative evidence and any secondary or other mode cannot be taken as a substitute to the former mode of proof, thus the alleged report was of no help to the petitioners--- No material irregularity/illegality as well as jurisdictional defect or mis-reading of evidence was found in the impugned judgments of two Courts below ;thus , no case of interference was made out --- Revision filed by plaintiffs , being merit-less, was dismissed in limine.

Allah Dino and 2 others v. Mohammad Umar and 2 others 1974 SCMR 411; Syed Muhammad Umer Shah v. Bashir Ahmed 2004 SCMR 1859 and Mst. Saadat Sultan and others v. Muhammad Zahur Khan and others 2006 SCMR 193 ref.

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

----Arts.34 & 79---Specific Relief Act ( I of 1877 ), S. 12---Suit for specific performance---Agreement-to-sell, execution of---Admission---Scope and proof---Assertion of the plaintiffs/petitioners was that transaction of sale was settled with the defendant / respondent and agreement and receipt were scribed, yet said stance was strongly controverted by the latter while raising serious allegations with regard to its genuineness as well as transaction detailed therein--- Plaintiffs were concurrently non-suited---Contention of the petitioners/plaintiffs was that the defendant(vendor/respondent) while adducing his own evidence ,during cross-examination , made an admission that if his signature on alleged agreement were proved to be positive under forensic science , then the plaintiffs was be termed as truthful and, they would be entitled for decree in wake of positive report to said effect---Validity---Admission of a party in ignorance of legal rights has no legal effect, which being wrong on point of fact is also not admissible---Respondent/defendant might have been under an illusion or delusion that report would never come against his version, therefore , he had made the aforesaid statement, which even otherwise was shrouded in mystery and was uncertain at the time when it was worded---Said statement of respondent was based upon a result to be received in future--- In terms of Art. 34 of Qanun-e-Shahadat, 1984 ('the Order 1984') , an admission even if considered to be a legal right is just a relevant fact, however it cannot be taken as conclusive proof against a party making it--- In particular backdrop of the case, the statement made by the defendant / respondent for sending his signatures/thumb impressions to the expert was not an admission as defined in relevant provision of the Order, 1984 as nowhere it was claimed that these were his thumb impressions, who since inception of litigation was claiming those to be forged and fictitious---Petitioners had already concluded their evidence and by mere resort to the aforesaid exercise, they could not be absolved of the mandatory requirement of law as detailed in Art. 79 of the Order, 1984 to prove the execution of alleged agreement, which entailed financial liability and future obligation---No material irregularity/illegality as well as jurisdictional defect or mis-reading of evidence was found in the impugned judgments of two Courts below; thus, no case of interference was made out---Revision filed by plaintiffs, being merit-less, was dismissed in limine.

Ahmad Khan v. Rasul Shah and others PLD 1975 SC 311 and Fida Muhammad and another v. Umar Khitab 2013 CLC 1171 ref.

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

----Art. 129 (g)---Specific Relief Act (I of 1877), S. 12---Suit for specific performance --- Agreement-to-sell ,execution of---Proof---Stamp-vendor, non-producing of---Effect---Assertion of the plaintiffs/petitioners was that transaction of sale was settled with the defendant / respondent and agreement and receipt were scribed, yet said stance was strongly controverted by the latter while raising serious allegations with regard to its genuineness as well as transaction detailed therein--- Plaintiffs were concurrently non-suited --- Validity --- Defendant(respondent/ vendor) was resident of Tehsil "J"(Jaranwala) and suit property was also situated in the said territory, where the Deed Writer and Stamp Vendor were available, but surprisingly the stamp paper was purchased/scribed at "F"(Faisalabad) ---Record divulged that Stamp Vendor was not summoned by the petitioners/plaintiffs , who could be the best person to belie the allegation of the respondent/defendant that the stamp paper was never purchased by him---Withholding of said independent witness was enough to draw hostile inference against the petitioners under Article 129 illustration (g) of Qanun-e-Shahadat, 1984 ('the Order, 1984')--- When the due construction of alleged agreement and receipt could not be proved per mandate of Art. 79 of the Order, 1984, then there was no scope for the success of the petitioners --- No material irregularity/illegality as well as jurisdictional defect or mis-reading of evidence was found in the impugned judgments of two Courts below; thus , no case of interference was made out --- Revision filed by plaintiffs , being merit-less, was dismissed in limine.

M.A. Ghaffar-ul-Haq for Petitioners.

Order

Ch. Muhammad Masood Jahangir, J.---The decisions dated 19.01.2021 and 10.06.2022 of two Courts below whereby not only suit for possession via specific performance of agreement to sell dated 21.01.2011 (Exh.P1) instituted by the petitioners/plaintiffs was dismissed rather their appeal regretted as well, are subject of petition in hand.

1. Inessential detail apart, on 10.02.2011 the afore-noted suit was instituted by the petitioners/plaintiffs before learned Civil Court, Jaranwala asserting that they purchased subject property by making certain amount to the respondent/defendant, who in its recognition executed sale contract dated 21.01.2011 (Exh.P1), but when not acted upon, approached the Court to seek decree for its specific performance. The suit was contested by the respondent avowing that neither any bargain settled nor consideration received, rather forged-fictitious agreement to sell (Exh.P1) and receipt (Exh.P2) were maneuvered by the petitioners to usurp his valuable property. Facing with divergent pleadings of the parties, learned Trial Court settled issues enabling them to lead evidence, which in pros and cons was recorded and finally after its appreciation the petitioners/plaintiffs were non-suited by the fora below through impugned concurrent judgments cited in preceding para. Now this petition has been made to check the legality and validity thereof.

2. Arguments heard, record perused.

3. Although the petitioners asserted that transaction of sale was settled with the respondent and Exh.P1 and Exh.P2 were scribed, yet said stance was strongly controverted by the latter while raising serious allegations with regard to its genuineness as well as transaction detailed therein. In such scenario, the basic onus was upon the petitioners to prove the alleged sale and due construction of their hub documents per scheme of law. As Exh.P1 and Exh.P2 involved future obligation and financial liability, thus those were to be executed under mandate of Article 17 of the Qanun-e-Shahadat Order, 1984 and sine qua non for the beneficiary/petitioners to prove the same according to mode provided in Article 79 of the Order ibid. Although these two documents at the time of its scribe per spirit of former Article were attested by Ghazanfar Ali (PW3) and one Mian Ikram being marginal witnesses, yet surprisingly the latter despite availability was not examined, thus compulsory requirement of Article 79 was not followed. The apex Court while defining said provision in depth via decisions styled as Mst. Rasheeda Begum and others v. Muhammad Yousaf and others (2002 SCMR 1089), Hafiz Tassaduq Hussain v. Muhammad Din through Legal Heirs and others (PLD 2011 SC 241), Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044), Falak Sher v. Province of Punjab and others (2017 SCMR 1882) has already observed that its requirement is mandatory and without strict compliance thereof any such document (entailing future obligation or financial liability) cannot be used in evidence. For ready reference, para No.8 of Hafiz Tassaduq Hussain's case (supra) being applicable with all four corners to the case in hand is given below:-

"The command of the Article 79 is vividly discernible which elucidates that in order to prove an instrument which by law is required to be attested, it has to be proved by two attesting witnesses, if they are alive and otherwise are not incapacitated and are subject to the process of the Court and capable of giving evidence. The powerful expression 'shall not be used as evidence' until the requisite number of attesting witness have been examined to prove its execution is couched in the negative, which depicts the clear and unquestionable intention of the legislature, barring and placing a complete prohibition for using in evidence any such document, which is either not attested as mandated by the law and/or if the required number of attesting witnesses are not produced to prove it. As the consequence of the failure in this behalf are provided by the Article itself, therefore, it is a mandatory provision of law and should be given due effect by the Courts in letter and spirit. The provisions of this Article are most uncompromising, so long as there is an attesting witness alive capable of giving evidence and subject to the process of the Court, no document which is required by law to be attested can be used in evidence until such witness has been called, the omission to call the requisite number of attesting witnesses is fatal to the admissibility of the document. See Sheikh Karimullah v. Gudar Koeri and others (AIR 1925 Alahabad 56). The purpose and object of the attestation of a document by a certain number of witnesses and its proof through them is also meant to eliminate the possibility of fraud and purported attempt to create and fabricate false evidence for the proof thereof and for this the legislature in its wisdom has established a class of documents which are specified, inter alia, in Article 17 of the Order, 1984. (See Ram Samujh Singh v. Mst. Mainathy Kuer and others (AIR 1925 Oudh 737). The resume of the above discussion leads us to an irresistible conclusion that for the validity of the instruments falling within Article 17 the attestation as required therein is absolute and imperative. And for the purpose of proof of such a document, the attesting witnesses have to be compulsorily examined as per the requirement of Article 79, otherwise, it shall not be considered and taken as proved and used in evidence. This is in line with the principle that where the law requires an act to be done in a particular manner, it has to be done in that way and not otherwise."

This aspect with some more clarity that nothing short of two attesting witnesses can even be imagined for proving sale contract, besides that testimony of scribe cannot be used to consider it as statement of marginal witness has also been substantiated by the same Court in Farid Bakhsh's case (supra) by concluding that:-

"This Article in clear and unambiguous words provides that a document required to be attested shall not be used as evidence unless two attesting witnesses at least have been called for the purpose of proving its execution. The words "shall not be used as evidence" unmistakably show that such document shall be proved in such and no other manner. The words "two attesting witnesses at least" further show that calling two attesting witnesses for the purpose of proving its execution is a bare minimum. Nothing short of two attesting witnesses if alive and capable of giving evidence can even be imagined for proving its execution. Construing the requirement of the Article as being procedural rather than substantive and equating the testimony of a Scribe with that of an attesting witness would not only defeat the letter and spirit of the Article but reduce the whole exercise of re-enacting it to a farce. We, thus, have no doubt in our mind that this Article being mandatory has to be construed and complied with as such."

In recent decision cited as Khudadad v. Syed Ghazanfar Ali Shah alias S.Inaam Hussain and others (2022 SCMR 933), the apex Court once again reinforced its earlier verdicts by holding as under:-

"The attestation and execution both have distinct characteristics. The execution of document attributes signing in presence of attesting witnesses including all requisite formalities which may be necessary to render the document valid. While the fundamental and elemental condition of valid attestation is that two or more witnesses signed the instrument and each of them has signed the instruments in presence of the executants. This stringent condition mentioned in Article 79 is uncompromising. So long as the attesting witnesses are alive, capable of giving evidence and subject to the process of Court, no document can be used in evidence without the evidence of such attesting witnesses. The provision of this Article is mandatory and non-compliance will render the document inadmissible in evidence. If execution of a document is specifically denied, the best course is to call the attesting witnesses to prove the execution. When the evidence brought forward by a party to prove the execution of a document is contradictory or paradoxical to the claim lodged in the suit, or is inadmissible, such evidence would have no legal sanctity or weightage."

1. Mr. M.A.Ghaffar ul Haq, worthy counsel for the petitioners being aware that mandatory requirement was not met with, while drawing attention of this Court towards available record further argued on two counts; firstly that second marginal witness was not examined as he was closely related to the alleged vendor and if he was produced, would have deposed in his favour, thus for such risk his withholding was justified and secondly, that per desire of the respondent, his signatures over Exhs.P1 and P2 were compared with through an Expert, thus no further proof was required to establish their construction as well as veracity. The first ground of argument of worthy counsel for the petitioners has already been answered by the apex Court via Para No.12 of the Hafiz Tassaduq's case (supra), which reads as under:-

"12. For the argument that as the second attesting witness of the agreement was the son of the respondent, therefore, the appellant could not take the risk of examining him, it may be held that as ordained above the mandatory provisions of law had to be complied and fulfilled and only for the reason or the perception that such attesting witness if examined may turn hostile does not absolve the concerned party of its duty to follow the law and allow the provisions of the Order, 1984, relating to hostile witness take its own course. Before parting it may be mentioned that the judgment reported as Abdul Wali v. Muhammad Saleh (1998 SCMR 760) which find mention in the leave granting order is not relevant for the proposition in hand as it relates to a document before the enforcement of the Order, 1984 when Article 17 was not there."

Thus made it clear that for any risk, mandatory requirement of law cannot be avoided.

1. As far as second limb of argument of Mr. Ghaffar, learned counsel for the petitioners is concerned, though the disputed documents were referred to the Forensic Lab for comparison, which after some drill-work submitted positive Report, but admittedly its maker was not called for to prove the same, which per se was not admissible and rightly ignored to be taken into consideration by the fora below. See Allah Dino and 2 others v. Mohammad Umar and 2 others case (1974 SCMR 411). Moreover, it is always risky to base the findings of genuineness of writing or signature on Expert's opinion, because such like report cannot be taken as conclusive proof. Even otherwise, a document not part of judicial record can only be proved by examining direct affirmative evidence and any secondary or other mode cannot be taken a substitute to the former mode of proof, thus the alleged Report was of no help to the petitioners. Reliance is placed on Syed Muhammad Umer Shah v. Bashir Ahmed (2004 SCMR 1859). Its relevant portion for ready reference is reproduced here:-

"After scanning the entire evidence on record and after going through the concurrent findings, we are of the firm view that the only opinion of a Handwriting Expert, otherwise a weak piece of evidence, should not be allowed to prevail against strong circumstances and strong evidence giving inference, altogether, to the contrary. When once the petitioner had failed to prove his case on the basis of the very evidence produced by him, he cannot be given the benefit of the only favouarble opinion by the Expert, being otherwise a weak piece of evidence."

This view was reiterated by the same Court in case Mst. Saadat Sultan and others v. Muhammad Zahur Khan and others (2006 SCMR 193) in the following words:-

"We have carefully examined the contentions as adduced on behalf of petitioners in the light of relevant provisions of law and record of the case. We have scanned the entire evidence and perused the judgments of learned trial and Appellate Courts as well as the judgment impugned. Let we make it clear at the outset that the opinion of Handwriting Expert is a very weak type of evidence and is not that of a conclusive nature. It is well-established by now that expert's evidence is only confirmatory or explanatory of direct or circumstantial evidence and the confirmatory evidence cannot be given preference where confidence inspiring and worthy of credence evidence is available. In this regard we are fortified by the dictum as laid down in Yaqoob Shah v. The State PLD 1976 SC 53. There is no doubt that the opinion of Handwriting Expert is relevant but it does not amount to conclusive proof as pressed time and again by the learned Advocate Supreme Court on behalf of petitioner and can be rebutted by overwhelming independent evidence. In this regard reference can be made to Abdul Majeed v. State PLD 1976 Kar. 762. It is always risky to base the findings of genuineness of writing on Expert's opinion. In this behalf we are fortified by the dictum as laid down in case of Ali Nawaz Gardezi v. Muhammad Yousuf PLD 1963 SC 51."

1. Now coming to the next point highlighted by worthy counsel for the petitioners that the vendor/respondent being DW1 during cross-examination on 13.10.2014 made admission to the following effect:-

thus the Courts below treating it unequivocal admission having received positive report from the Forensic Science Laboratory as under:-

Conclusion(s)

2025 M L D 286

[Lahore]

Before Masud Abid Naqvi, J

Rab Nawaz (deceased) through Legal heirs and others---Petitioners

Versus

Mst. Samra Andleeb---Respondent

Civil Revision No. 44182 of 2024, heard on 12th July, 2024.

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

----Ss. 42 & 39 --- Suit for declaration and cancellation of gift-mutation --- Gift --- Essential ingredients of valid gift---Proof---Power of attorney --- Principal, permission of --- Scope---Daughter of deceased/father challenged general power of attorney allegedly entered/sanctioned by their deceased father in favour of defendant ( son/brother) who transferred the property of principal/father to his (defendant's) wife through gift deed without the special/express permission of principal --- Claim under challenge was concurrently decreed in her (plaintiff's) favour --- Validity ---Record reveals that the defendants/petitioners had neither specifically pleaded in the written statement about the alleged special/specific permission of the principal/father to his attorney (son/defendant) to gift his property to his wife (defendant) through disputed gift deed or the original transaction of gift with time, date, day, month etc. nor the three essential ingredients of valid gift i.e. offer, acceptance and delivery of possession---Defendants/petitioners had also not pleaded/exhibited any document(s) especially showing the written consent/permission of the principal to the attorney as allegedly was written in the disputed gift deed--- On the basis of alleged general power of attorney alleged gift deed was registered during the lifetime of the principal and , strangely, neither the principal himself exercised the right and power for the purpose of making a gift to alleged donee/his daughter-in-law by taking a mentally conscious decision nor signed disputed gift deed in favour of the alleged donee, who had no mental or physical incapacity at that time, pleaded by the defendants/petitioners themselves in their written statement---Defendants/petitioners failed to plead and prove through evidence (i) execution of general power of attorney and (ii) making of original oral gift transaction with its legal ingredients; valid gift with offer, acceptance and delivery of possession, express permission/instructions of donor/principal to his attorney for making gift and execution of disputed gift deed--- Neither any misreading or non-reading of evidence on record nor any infirmity, legal or factual, had been pointed out in the challenged findings of the Courts below----Civil revision , filed by defendants, was, dismissed in limine.

Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811; Maqsood Ahmad and others v. Salman Ali PLD 2003 SC 31; Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494; Ijaz Bashir Qureshi v. Shams-un-Nisa Qureshi and others 2021 SCMR 1298; Syed Atif Raza Shah v. Syed Fida Hussain Shah and others 2022 SCMR 1262 and Babar Anwar v. Muhammad Ashraf and another 2024 SCMR 734 ref.

(b) Power of attorney---

----Execution---Attorney, responsbilities of---Scope---Gift transanction made under power of attorney---Principal, permission of---Scope---Power of attorney is an instrument in writing, conferring authority or power by a principal to his attorney to do certain acts in a specific and limited manner---In the disputed general power of attorney, no specific powers were given by the principal/father to his attorney/his son to gift his land to attorney's wife/defendant by clearly specifying the name of donee and the power of attorney was also not clearly indicating/conveying the principal's knowledge, intention and consent for making gift of his land to his attorney's wife/principal's daughter-in-law---Generally an attorney cannot utilize the powers conferred upon him to transfer the property to himself or his kith and kin, without special and specific consent/permission of the principal and in case of gift transaction, more strict conditions have been attached for proving the gift made by an attorney as a valid gift transaction because being voluntary and gratuitous, gift reflects the personal sentiments of love, affection, kindness and compassion of donor for the donee or sometimes sentiments due to personal services rendered by the donee to the donor and personal sentiments of donor/principal cannot be expressed by an attorney on behalf of donor, therefore, the process of making valid gift must preferably be initiated and completed by the donor himself with the exception that the attorney may gift the property on the express permission and instructions of his principal--- Strong personal sentiments of donor must necessarily be directly established in gift transaction in clear terms through pleadings and irrefutable evidence because alleged donor had allegedly deprived his daughter/plaintiff from his land---Civil Revision, filed by the defendant, was dismissed, in limine.

Farzana Nazir Bhullar for Petitioners.

Date of hearing: 12th July, 2024.

Judgment

Masud Abid Naqvi, J.--- Concise facts of this civil revision are that the daughter of deceased Abdul Haq /plaintiff/respondent challenged oral gift mutation No. 132 dated 04.07.1996 allegedly entered/sanctioned by the plaintiff/respondent's deceased father in favour of his son/defendant No.1/predecessor in interest of the petitioners and also challenged the validity of general power of attorney No.712/4 dated 10.11.2001/Ex.D-3 allegedly executed by the plaintiff/respondent's deceased father/principal in favour of defendant No.1/his son/attorney who transferred the principal's property to his wife/defendant No.2/petitioner No.1-A through gift deed No.4000/1 dated 29.12.2004/Ex.D-1 without the special/express permission of principal. The suit was duly contested by the petitioners/defendants by filing written statement and by raising certain factual as well as legal objections. Out of divergent pleadings of the parties, issues were framed by the learned trial court. The parties produced their respective evidence and after recording the same, learned trial Court dismissed the suit of the plaintiff to the extent of gift mutation No.132 dated 04.07.1996 and partially decreed the suit of plaintiff by declaring the gift transaction/gift deed gift deed No.4000/1 dated 29.12.2004/Ex.D-1 executed on basis of general power of attorney No.712/4 dated 10.11.2001/Ex.D-3 as void ab initio vide judgment and decree dated 08.06.2002. Feeling aggrieved, the plaintiff/respondent as well as defendants/petitioners filed their respective appeals and the learned Addl. District Judge, Sahiwal vide consolidated judgment and decrees dated 21.05.2024 dismissed both the appeals. Being dissatisfied, the defendants/petitioners have filed the instant civil revision and challenged the validity of the impugned judgments and decrees passed by the learned Courts below only to the extent of findings on gift transaction/gift deed No.4000/1 dated 29.12.2004 and general power of attorney No.712/4 dated 10.11.2001.

2025 M L D 323

[Lahore (Rawalpindi Bench]

Before Muhammad Sajid Mehmood Sethi, J

Muhammad Arif---Petitioner

Versus

Javaid Khan---Respondent

Civil Revision No. 404-D of 2015, heard on 11th September, 2024.

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

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Arts.70 & 103---Suit for declaration with permanent injunction---Counter claim of execution of sale deed---Existence of written agreement between the parties---Tendency of executing party to vary the terms of the agreement through oral statements---Admission as to execution of agreement in evidence---Suit was dismissed, however, upon appeal preferred by the petitioner appellate court while dismissing the appeal passed a decree for specific performance of the contract---Validity---Petitioner himself admitted receiving of token money from respondent's father-in-law and his signature upon receipt slip stated that he received the amount as token money for land---Signature and thumb impression of petitioner were also available on the back of stamp paper, which explicitly stated that suit property had been sold to respondent for consideration vide Iqrarnama/sale deed---Petitioner while appearing as P.W acknowledged during the course of cross-examination that he purchased the stamp paper from the Stamp Vendor and also confirmed his signature in the register of that Stamp Vendor---As per report of Local Commission, respondent was in possession of the land in question and this fact was also conceded by other prosecution witness---Such evidence provided a basis for the lower appellate court to pass a decree of specific performance of contract in respondent's favour, which decision was based on correct appreciation of evidence---Oral evidence could not outweigh the documentary evidence and once an agreement has been reduced in writing, oral evidence is to be excluded while proving the terms thereof as against the terms specifically reduced in writing---Civil revision was dismissed, in circumstances.

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

----Art.70---Oral evidence cannot outweigh documentary evidence---Documentary evidence, which is not objected to at relevant time, would prevail against oral evidence, regardless of how abundant the latter may be---Oral evidence cannot substitute documentary evidence.

Abdul Ghani and others v. Mst. Yasmeen Khan and others 2011 SCMR 837; Shamshad v. Arif Ashraf Khan and others 2010 SCMR 473 and Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 rel.

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

----Art.103---Exclusion of oral statement made between the parties to any instrument or their representatives---Rationale behind Art.103 of Qanun-e-Shahadat, 1984, is that inferior evidence should be excluded in the presence of superior evidence; that a written agreement reflects a deliberate and well considered settlement---Party acknowledging a fact in writing is immune from mischief, failure and lapse of memory---Once an agreement has been reduced in writing, oral evidence is to be excluded while proving the terms thereof as against the terms specifically reduced in writing.

Bolan Beverages (Pvt.) Limited v. PEPSO Co. Inc. and 4 others PLD 2004 SC 860 and Elahi Bakhsh through Legal Heirs and others v. Muhammad Iqbal and another 2014 SCMR 1217 rel.

Muhammad Kashif and Malik Shamsul Haq for Petitioner.

Nasir Iqbal for Respondent.

Date of hearing: 11th September, 2024.

Judgment

Muhammad Sajid Mehmood Sethi, J.---Through instant revision petition, petitioner has assailed the vires of judgments and decrees dated 03.04.2014 and 18.02.2015, passed by learned Civil Judge and Additional District Judge, Jand (Attock), respectively, whereby petitioner's suit for declaration along with permanent and mandatory injunction, was concurrently dismissed, however Trial Court findings to the extent of decree qua specific performance of contract passed in favour of respondent, were set aside by the Appellate Court.

1. Facts in brief are that petitioner instituted a suit for declaration along with permanent and mandatory injunction to the effect that he is owner-in-possession of suit property measuring 02-Kanal 03-Marla, situated in Khasra No.457, Mauza Basal, Tehsil Jand, District Attock and respondent has no concern whatsoever with the suit property and if respondent has managed / maneuvered any sale deed / agreement, same being against the law and facts, is inoperative qua rights of petitioner and liable to be set aside. The suit was contested by respondent by way of filing written statement. Learned Trial Court, after framing issues, recording evidence and hearing arguments of both sides, proceeded to dismiss the suit vide judgment and decree dated 03.04.2014 and at the same time, passed decree for specific performance of contract in favour of respondent. Feeling discontent, petitioner filed appeal before learned Additional District Judge, who vide judgment and decree dated 18.02.2015 partly accepted the same, set aside the findings of Trial Court to the extent of decree qua specific performance of contract and upheld Trial Court's decision qua dismissal of petitioner's suit. Hence, this revision petition.

2. Learned counsel for petitioner submits that document Exh.D1 is in fact a loan receipt and not an agreement to sell. He further submits that the Courts below have misconstrued the evidence brought on record by the respondent in the shape of Exh.D1 and Exh.D2 as the agreement between the parties was that of a loan as assurance from the petitioner towards the respondent, not for sale, thus, impugned judgments and decrees are unsustainable in the eye of law.

3. On the other hand, learned counsel for respondent defends the impugned judgments and decrees.

4. Arguments heard. Available record perused.

5. It is the stance of petitioner that due to a friendly relationship between the parties, he borrowed Rs.1,00,000/- from the respondent, who in exchange thereof, obtained petitioner's signatures on stamp paper for the return of aforesaid amount, however, since petitioner is illiterate, he was unable to understand the contents of the stamp paper, which was subsequently transformed into a sale agreement. The petitioner asserts that this document is false, fabricated and concocted.

6. It is apparent from bare perusal of record that petitioner himself admitted to receiving Rs.10,000/- from respondent's father-in-law, namely Haji Abdur Raheem and his signature upon receipt slip Exh.D1, which states that on 07.10.2000, he received Rs.10,000/- as token money for land. For convenience, the contents of receipt Exh.D1 are reproduced hereunder:-

Similarly, signature and thumb impression of petitioner are also available on the back of stamp paper (Exh.D2), which explicitly states that suit property has been sold to respondent for Rs.1,10,000/- vide Iqrarnama / sale deed. During his testimony as PW-1, petitioner acknowledged during the course of cross-examination that he purchased the stamp paper from Muhammad Ramzan, the Stamp Vendor. He also confirmed his signature in the register of Muhammad Ramzan. For facility of reference, relevant portion of petitioner's cross-examination is reproduced hereunder:-

1. Receiving of payment and affixing signature on disputed, stamp paper (Exh.D2) are admitted by the petitioner himself. It is also a matter of record that according to report of Local Commission (Exh.D4), respondent was in possession of the land in question - a fact conceded by PW-2 Adeel Akhtar. This evidence provided a basis for learned lower Appellate Court to set aside decree of specific performance of contract in respondent's favour, and appellate decision is thus based upon correct appreciation of evidence brought on record and applicable law.

2025 M L D 344

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

Muhammad Amin---Appellant

Versus

Muhammad Asif Askari and others---Respondents

F.A.O. No. 21 of 2020, heard on 17th October, 2024.

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

---- S. 17(4) --- Eviction of tenant --- Personal bona fide need---Scope --- Rent Controller allowed the ejectment petition filed by the respondents seeking eviction of the appellant from shop (rented premises) --- Validity--- Personal bona fide need is one of the recognized grounds for eviction of a tenant from the rented premises under S.17 of the Cantonments Rent Restriction Act, 1963('the Act 1963')---Whenever a landlord pleads that the rented premises is required by him for his personal need bonafidely, assertion on oath by the landlord that he requires the property in good faith for his personal use shall be sufficient to accept his bona fide, if such assertions are consistent and in conformity with the averments of the ejectment petition--- Such statement cannot be discarded in vacuum--- Even otherwise, it is always the landlord, who is vested with the prerogative to exercise his choice for the rented premises and if he needs it bonafidely for his personal use, his claim cannot be rejected outrightly---No illegality or material irregularity was noticed in the impugned eviction order passed by the Rent Controller ---Appeal , filed by tenant, was dismissed, in circumstances.

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

---- Ss. 17(4), 17(5) & 17(6)--- Eviction of tenant --- Personal bona fide need ---Scope --- Rent Controller allowed the ejectment petition filed by the respondents seeking eviction of the appellant from shop (rented premises) --- Validity--- In terms of subsection (5) of S.17 of the Cantonments Rent Restriction Act, 1963 ('the Act 1963'), the Controller shall, if he is satisfied that the claim of the landlord under subsection (4) is bona fide, make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller---Controller may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in aggregate--- To this effect, subsection (6) of S.17 of the Act, 1963, cannot be ignored, which ordains that where the landlord who has obtained possession of a building in pursuance of an order made under subsection (5) does not himself, or where possession of the building has been obtained for any member of his family, such member does not occupy the building within one month of the date of obtaining its possession, the tenant who has been evicted may apply to the Controller for an order directing that the possession of such building be restored to him and the Controller may thereon make an order accordingly---No illegality or material irregularity was noticed in the impugned eviction order passed by the Rent Controller ---Appeal , filed by tenant, was dismissed, in circumstances.

Pakistan Institute of International Affairs v. Naveed Merchant and others 2012 SCMR 1498 ref.

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

----S. 17---Eviction of tenant---Multiple grounds for eviction asserted by landlord---Effect---Rent Controller allowed the ejectment petition filed by the respondents seeking eviction of the appellant from shop (rented premises)---Validity---If landlord canvasses multiple grounds for the eviction of the tenant it is not necessary for him to establish and prove all these grounds---If the landlord is able to prove one of the grounds asserted in the ejectment petition, the tenant can be evicted by the Rent Tribunal---No illegality or material irregularity was noticed in the impugned order passed by the Rent Controller ---Appeal, filed by tenant, was dismissed, in circumstances.

Major (Retd.) Ahsan-ul-Haque v. Muhammad Ejaz 2011 SCMR 487 ref.

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

---- S. 17 ---Premises rented for residential purpose ---Conversion into commercial activity --- Effect ---Record revealed that while moving the ejectment petition, the respondents/landlord canvassed that the "rented premises" were in fact meant for residential purpose and on account of its conversion into commercial activity, a notice was served by the concerned Cantonment Board for unauthorized commercial use--- In this backdrop, the Rent Controller while allowing the ejectment petition, imposed a condition that the respondents shall never use the rented premises un-authorisedly for commercial purpose until it was converted into commercial status after due process of law ---It was also observed that in case the rented premises was again put to un-authorised commercial use, the Cantonment Board shall take legal action against the respondents and if the respondents get the rented premises commercialized in future, they will be bound to make their first offer to the appellant---Such condition imposed by the Rent Controller was quite logical and in the interest of appellant---No illegality or material irregularity was noticed in the impugned eviction order passed by the Rent Controller ---Appeal , filed by tenant, was dismissed, in circumstances.

Muhammad Taimur Malik and Wasif Ali Ch. for Appellant.

Khawaja Hassan Riaz for Respondents.

Date of hearing: 17th October, 2023.

Judgment

Mirza Viqas Rauf, J.---This appeal under section 24 of the Cantonments Rent Restriction Act, 1963 (hereinafter referred to as "Act, 1963") arises out of order dated 15th January, 2020, whereby the Rent Controller, Wah Cantonment proceeded to allow the ejectment petition filed by the respondents seeking eviction of the appellant from shop No.2 forming part of property No.B-80, Lalarukh Wah Cantt (hereinafter referred to as "rented premises").

1. The facts forming background of this appeal are that the respondents, claiming themselves to be landlords of the "rented premises", filed an ejectment petition under section 17 of the "Act, 1963" seeking eviction of the appellant on the grounds of personal bona fide need and damage to the "rented premises". The ejectment petition was resisted by the appellant on multiple grounds, including denial of relationship of landlord and tenant. From the divergent pleadings of the parties, the Rent Controller framed multiple issues and then proceeded to record evidence of both the sides. On completion of evidence, ejectment petition was accepted conditionally by way of order dated 15th January, 2020, which is now impugned in this appeal.

2. Learned counsel for the appellant contended that no cogent evidence was though produced by the respondents to show that the "rented premises" are required for their personal use but the ejectment petition has been accepted in an illegal and unlawful manner. It is added that the Rent Controller did not properly appreciate the evidence of the parties while allowing the ejectment petition. Learned counsel emphasized that the impugned order is not tenable under the law.

3. Conversely, learned counsel for the respondents seriously resisted this appeal and defended the eviction order.

4. Heard. Record perused.

5. It appears from the record that initially ejectment petition was filed by Muhammad Asif Askari (respondent No.1). The appellant, while resisting the ejectment petition, submitted his reply wherein he asserted that the "rented premises" were obtained by him from Muhammad Tariq Anwar. During the proceedings, an application for impleading of Muhammad Tariq Anwar, Najam-ul-Hassan, Mst. Pakar-e-Anwaar and Mst. Huma Anwaar was, however, moved on the ground that they are also co-owners/landlords of the "rented premises". The application was allowed and they were arrayed as petitioners in the ejectment petition. The ejectment petition was, thus, accordingly amended. In the light of respective pleadings of the parties, necessary issues were framed by the Rent Controller. In support of averments of the petition, respondent No.1 appeared as AW-1. He reiterated the contents of the ejectment petition and stated that he is co-landlord of the "rented premises" and also general attorney of his brothers and sisters. It is also stated that the "rented premises" are required bonafidely for the personal use of the respondents as they have retired from their service.

6. On the contrary, the appellant submitted his affidavit in evidence as Exh.R1 and controverted the claim of the respondents. From the analysis of the evidence produced by both the sides, there remains no cavil to the fact that the respondents have duly established their personal bona fide need. The ejectment petition was ultimately allowed by way of impugned order.

7. Section 17 of the "Act, 1963" lays down the grounds for eviction of a tenant from the rented premises. Personal bona fide need is one of the recognized grounds for eviction. Subsection 4 (b) of section 17 of the "Act, 1963" deals with the ground of personal bona fide need in case of commercial building, which reads as under: -

17. Eviction of tenant.- (1)….

(2)….

(3)….

(4) A landlord may apply to the Controller for an order directing the tenant to put the landlord in possession,--

(a) in the case of a residential building, if-

(i) he requires it in good faith for his own occupation or for the occupation of any member of his family; and

(ii) he or the member of his family, as the case may be, is not occupying any other residential building suitable for his needs at the time, in the Cantonment Area concerned or in any local area in the vicinity thereof; and

(iii) he or the said member has not vacated such a building in the said area or vicinity without sufficient cause after the commencement of this Act; and

(b) in the case of a commercial building, if--

(i) he requires it in good faith for his own use; and

(ii) he is not occupying in the Cantonment Area concerned or in any local area in the vicinity thereof in which such building is situate for the purposes of his business any other such building suitable for his needs at the time; and

(iii) he has not vacated such a building in the said area or vicinity without sufficient cause after the commencement of this Act:

Provided that where the tenancy is for a specified period agreed upon between the landlord and the tenant, the landlord shall not be entitled to apply under this subsection before the expiry of such period:

Provided further that when the landlord has obtained possession of a residential or a Commercial building under the provisions of sub-clause (a) or sub-clause (b) he shall not be entitled to apply again for the possession of any other building under that sub-clause, unless the building of which he had previously taken possession has become unsuitable for his needs:

Provided also that this subsection shall not apply to serais, hotels, dak-bungalows, lodging-houses, boarding houses, residential clubs, restaurants, eating houses, cafes, refreshment rooms and places of public recreation or resort or premises dealing in sales or production of materials of books of educational and cultural values except where the landlord requires any such building to carry on any such business of his own, in which case he may make an application under this subsection after having served two years notice on the tenant; but no building which is not on the commencement of this Act, being used for any of the aforesaid purposes, or has not after such commencement been let out expressly for any such purpose, shall be converted to any such purpose except with the consent in writing of the landlord.

(Underlining supplied for emphasis)

1. It is an oft repeated principle of law that whenever a landlord pleads that the "rented premises" are required to him for his personal need bonafidely, assertion on oath by the landlord that he requires the property in good faith for his personal use shall be sufficient to accept his bona fides if such assertions are consistent and in conformity with the averments of the ejectment petition. Such statement cannot be discarded in vacuum. Even otherwise, it is always the landlord, who is vested with the prerogative to exercise his choice for the "rented premises" and if he needs it bonafidely for his personal use, his claim cannot be rejected outrightly.

2. It would not be out of place to mention here that in terms of subsection (5) of section 17 of the "Act, 1963", the Controller shall, if he is satisfied that the claim of the landlord under subsection (4) is bona fide make an order directing the tenant to put the landlord in possession of the building on such date as may be specified by the Controller and if the Controller is not satisfied, he shall make an order rejecting the application provided that the Controller may give the tenant a reasonable time for putting the landlord in possession of the building and may extend such time so as not to exceed three months in aggregate. To this effect, subsection (6) of section 17 of the "Act, 1963" cannot be ignored, which ordains that where the landlord who has obtained possession of a building in pursuance of an order made under subsection (5) does not himself, or where possession of the building has been obtained for any member of his family, such member does not occupy the building within one month of the date of obtaining its possession, the tenant who had been evicted may apply to the Controller for an order directing that the possession of such building be restored to him and the Controller may thereon make an order accordingly. The above provision clearly safeguards the rights of the tenant. Guidance in this regard can be sought from Pakistan Institute of International Affairs v. Naveed Merchant and others (2012 SCMR 1498).

3. It is also well entrenched principle that if landlord canvasses multiple grounds for the eviction of the tenant it is not necessary for him to establish and prove all these grounds. If the landlord is able to prove one of the grounds asserted in the ejectment petition, the tenant can be evicted by the Rent Tribunal. Reliance in this respect can be placed on Major (Retd.) Ahsan-Ul-Haque v. Muhammad Ejaz (2011 SCMR 487). The relevant extract from the said judgment is reproduce below:-

2025 M L D 355

[Lahore]

Before Abid Hussain Chattha, J

Mst. Abida Rafique Ghouri through legal heir---Petitioner

Versus

Syed Amjad Hussain Gillani and 3 others---Respondents

Civil Revision No. 26520 of 2019, heard on 29th April, 2024.

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

----S. 12---Suit for specific performance---Agreement to sell, execution of---Financial ability to complete the transaction---Scope---Suit was concurrently decreed in favour of plaintiff /buyer---Plea of the petitioner(lady defendant/seller) was that the respondent did not have the financial ability to complete the transaction---Validity---Admittedly, the respondent /plaintiff as buyer of the suit-property issued a cross cheque in the name of the Petitioner (defendant/seller) three days before the target date, a copy of which was handed over to the petitioner requiring her to initiate the process of transfer in the relevant authority (LDA)---However, there was no evidence on record that the petitioner took any step for execution of the sale deed or transfer of the suit property in LDA in the name of the respondent---As per the contents of the agreement, the balance sale consideration was payable at the time of execution of sale deed or transfer before the LDA, therefore, the plea of the petitioner (regarding respondent's financial inability to complete the transaction) was immature and based on assumption that he did not have requisite funds in the bank account regarding which he had issued the cross cheque in favour of the petitioner because payment could have been made in cash or through pay order from another account or by any other means---Petitioner was bound to initiate the process of sale transaction and may well have required the payment of balance sale consideration through pay order or cash or by any other mode at the time of execution of sale deed or transfer of the suit property before LDA but that time did not arrive due to lapse on the part of the petitioner---Both the Courts below had rendered well-reasoned and sound judgments after due appreciation of evidence and taking into account all aspects of the case requiring no interference in exercise of revisional jurisdiction of the High Court---Civil revision filed by defendant/seller, being merit-less, was dismissed, in circumstances.

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

----S. 12---Suit for specific performance---Agreement to sell, execution of---Concealment of there being a mortgage over suit property---Suit was concurrently decreed in favour of plaintiff /buyer---Plea of the petitioner (lady defendant/seller) was that the respondent did not have the financial ability to complete the transaction---Validity---(Petitioner) had stated in her written statement that she had issued three notices but the same were not brought on record and were issued after the target date---Although, the respondent had not pleaded that he paid Rs. 2,100,000/- to the petitioner to facilitate her to clear the mortgage qua the suit property yet the same fact was revealed by the petitioner in her written-statement, and perusal thereof showed that the said amount was deposited by the respondent, in the bank account of the petitioner but the same was returned vide cheque of particular date ; both the said dates were beyond the target date which depicted that the said amount was extended merely to redeem the mortgage over the suit property which had not been cleared before the target date---Petitioner had clearly undertaken in the agreement that the suit-property was free from all charges or liens but a document, marked on record, showed that the suit-property had been mortgaged to someone four months before execution of agreement, for a period of two years, redeemable on three months' notice upon payment of mortgage money---Notwithstanding the validity of the mortgage deed, as an attending circumstance, it was established that payment of Rs. 2,100,000/- was infact for redeeming the mortgage since the amount of Rs. 2,100,000/- matched with the amount of mortgage money and further proved that the factum of mortgage was not incorporated in the LDA record which showed the conduct of the petitioner that she not only concealed the fact of mortgage in the agreement but also failed to clear the suit property from all encumbrances before the target date---As such, the petitioner was not in a position to hand over vacant possession of the suit property to the respondent at the target date---Both the Courts below had rendered well-reasoned and sound judgments after due appreciation of evidence and taking into account all aspects of the case requiring no interference in exercise of revisional jurisdiction of the High Court---Civil revision filed by defendant/seller, being merit-less, was dismissed, in circumstances.

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

----S. 12---Suit for specific performance---Agreement to sell, execution of---Payment of balance amount---Readyness / willingness of buyer---Scope---Suit was concurrently decreed in favour of plaintiff /buyer---Plea of the petitioner(lady defendant/seller) was that the respondent did not have the financial ability to complete the transaction---Validity---Record depicted that the Trial Court granted restraining order in favour of the respondent but subject to deposit of remaining sale consideration---In consequence of said order, counsel for the respondent recorded his statement that the respondent was ready to pay the remaining sale consideration and deposited original cross cheque in the name of the petitioner with the stipulation that the petitioner could encash the same and the respondent would be liable for the consequences---However, the counsel for the petitioner refused to receive the same---Later, the Trial Court directed the respondent to deposit the balance sale consideration in the Court within one month; in compliance of which he ,after settling mode of payment through the Court, deposited/paid the same in the Court---Thus, it could not be conclusively conferred that the respondent did not have financial ability to complete the sale transaction---This was especially so since the respondent had promptly instituted the suit 1-1/2 months after the target date---Petitioner, in her written statement, while admitting the transaction, did not seek immediate payment of remaining sale consideration by demonstrating her willingness to execute sale deed but sought rescission of the agreement---Both the Courts below had rendered well-reasoned and sound judgments after due appreciation of evidence and taking into account all aspects of the case requiring no interference in exercise of revisional jurisdiction of the High Court---Civil revision filed by defendant /seller, being merit-less, was dismissed, in circumstances.

Mian Muhammad Faheem Bashir for Petitioners.

Muhammad Salman Masood and Muhammad Nisar Qammar for Respondent No. 1.

Ms. Samia Syed for Respondent No. 2.

Talat Mehmood Advocate vice counsel for Respondent No. 3.

Proceeded exparte vide Order dated 25th September, 2023 for Respondent No. 4.

Date of hearing: 29th April, 2024.

Judgment

Abid Hussain Chattha, J.---This Civil Revision assails the concurrent Judgments and Decrees dated 23.10.2017 and 04.02.2019 passed by Civil Judge and Additional District Judge, Lahore, respectively, whereby, the suit for specific performance of Respondent No. 1 (the "Respondent") against Mst. Abida Rafique Ghouri impleaded through her legal heir (the "Petitioner") was concurrently decreed.

1. Brief facts of this case are that the Respondent instituted a suit for specific performance based upon written agreement to sell dated 05.02.2014 (the "Agreement") against the Petitioner for purchase of triple storey house bearing No. 167/M, measuring 13.5 Marlas situated at Gulberg-III, Lahore (the "suit property"). It was alleged that out of total sale consideration of Rs. 12-Million, the Respondent paid Rs. 05-Million as earnest money and the remaining sale consideration of Rs. 07-Million was payable at the time of execution of sale deed or transfer of the suit property with target date of 05.05.2014. It was also asserted that the Petitioner provided a copy of transfer letter in her favour regarding the suit property issued by LDA (Respondent No. 3) dated 06.11.1991 and after due diligence, it was confirmed that the suit property was in the name of the Petitioner and free from all kinds of liabilities. Before the target date, the Respondent issued cross cheque bearing No. 1486014 dated 02.05.2014 in favour of the Petitioner and provided a copy of the same to her with the request to initiate the process of transfer of the suit property and receive the balance sale consideration as per her own choice. However, the Petitioner deliberately lingered on the execution of sale deed on one pretext or the other despite repeated requests and also did not pay the double amount of earnest money in case of her refusal to transfer the suit property as stipulated in the Agreement. Even, Respondent No. 2, property dealer, who had guaranteed the due execution of the sale transaction, was also contacted but in vain. As such, on account of failure of the Petitioner to perform her part of the Agreement, the Respondent has suffered huge loss. Hence, this suit.

2. The Petitioner, in her written statement, admitted the due execution of the Agreement and receipt of earnest money. However, it was alleged that balance sale consideration was not paid on or before the target date despite her repeated requests and as such, the Agreement stood rescinded as per its terms. It was also asserted that the Petitioner issued three notices dated 06.05.2014, 14.05.2014 and 22.05.2014, respectively, in this behalf which were not responded to by the Respondent. It was further averred that she had purchased 01 Kanal property from one Mirza Tahir Baig for total consideration of Rs. 12,800,000/- and paid an earnest money of Rs. 4,100,000/- which was confiscated due to non-payment of remaining sale consideration by the Respondent within the stipulated target date of 15.05.2014 and as such, she has suffered irreparable loss and injury. It was next revealed that the Respondent arranged only Rs. 2,100,000/- as balance sale consideration out of Rs. 07-Million which was deposited in her account without her consent and the same was later returned to the Respondent through cheque bearing No. 1409227 dated 02.06.2014 because he did not fulfill his obligation to pay the balance sale consideration within the target date. As such, the Respondent is neither entitled to receive the double amount of earnest money nor the relief of specific performance of the Agreement.

3. Respondent No. 2, the property dealer, in his written statement also admitted the due execution of the Agreement between the Petitioner and the Respondent including payment and receipt of earnest money. He asserted that he provided a copy of cheque qua balance sale consideration issued by the Respondent to the Petitioner and asked her to initiate the process of transfer of the suit property but she showed her continuous reluctance and refused to transfer the same as well as pay back double amount of earnest money. As such, Respondent No. 2 supported the version of the Respondent to the effect that the Petitioner did not perform her part of the Agreement.

4. Out of the divergent pleadings of the parties, the Trial Court framed the following issues on 02.06.2015:-

1. Whether the plaintiff is entitled to the decree for specific performance of agreement to sell dated 05-02-2014 as prayed for? OPP

2. Whether the plaintiff is entitled to receive double earnest money amounting to Rs.1,00,00,000/- on account of failure of defendant No.2 to perform her part of agreement to sell? OPP

3. Whether the plaintiff was willing and still ready to perform his part of contract? OPP

4. Whether the time was essence of the contract and the plaintiff failed to pay the remaining consideration of Rs.70,00,000/- within three months i.e. till 05-05-2014, hence the agreement to sell dated 05-02-2014 has become rescinded?OPD1

5. Whether the plaintiff has no cause of action to file the instant suit against the defendants? OPD

6. Whether the suit of the plaintiff is not maintainable in its present form, hence the same is liable to be dismissed with special costs? OPD

7. Relief.

1. After recording respective evidence of the parties, the Trial Court proceeded to Decree the suit of the Respondent. The Petitioner preferred an Appeal which was also dismissed by the Appellate Court. Hence, this Civil Revision.

2. Learned counsel for the Petitioner contended that the Courts below have not addressed the question of readiness and willingness on the part of the Respondent to perform his part of the Agreement and his financial ability to pay the balance sale consideration on or before the target date as it was proved from bank statement of the Respondent (Ex. P-3) that he never had requisite funds to pay the balance sale consideration. The Respondent had not specifically pleaded in the plaint that he was always ready and willing to perform his part of the Agreement and had financial ability to pay the balance sale consideration within the target date. Specific performance is a discretionary relief and in the instant case, the same has not been awarded through structured discretion exercised by the Courts below. This is evident from the fact that at the time of filing of the suit, no tangible effort was made by the Respondent to deposit the balance sale consideration and the same was paid after one year from the date of institution of the suit in compliance with the order dated 22.05.2015. The lack of financial ability of the Respondent to pay the balance sale consideration on or before the target date is evident from his conduct supported by interim orders on record. The observations of the Courts below to the effect that the suit property was mortgaged cannot be read in evidence as no such plea was taken by the Respondent in his plaint and as such, evidence beyond pleadings could not have been made basis to hold that the Petitioner was in default of her part of the Agreement.

3. Conversely, learned counsel for the Respondent contended that the Respondent specifically pleaded in his plaint that he had performed his part of the Agreement, whereas, the Petitioner did not perform her part of the Agreement which was also endorsed by Respondent No. 2 who was a guarantor of the sale transaction. The payment of Rs. 2,100,000/- to the Petitioner was made merely to facilitate her in redeeming the suit property which though returned yet proves that the Respondent had financial resources to pay the balance sale consideration. The cross cheque was issued in a bona fide manner requiring the Petitioner to initiate the process of transfer of the suit property and take the balance sale consideration as per her choice at the time of execution of the sale deed or transfer of the suit property as agreed in the Agreement. However, the Petitioner neither took any step to initiate the process of transfer of the suit property by obtaining no objection certificate from LDA nor redeemed the portion of the suit property in possession of the mortgagee. Hence, the concurrent findings of fact recorded by the Courts below are not liable to be reversed.

4. Arguments heard. Record perused.

5. The execution of the Agreement and receipt of earnest money is admitted. The dispute is essentially with respect to determination as to whether the Petitioner or the Respondent failed to perform her or his part of the Agreement. It is admitted on record that the Respondent as buyer of the suit property issued cross cheque dated 02.05.2014 in the name of the Petitioner before the target date of 05.05.2014, a copy of which was handed over to the Petitioner requiring her to initiate the process of transfer in the LDA. However, there is no evidence on record that the Petitioner applied for no objection certificate which was required for transfer of the suit property either through execution of sale deed or directly before the LDA. She also did not take any step for execution of the sale deed or transfer of the suit property in the LDA in the name of the Respondent. The balance sale consideration was payable at the time of execution of sale deed or transfer before the LDA as per the contents of the Agreement. Therefore, the plea that the Respondent did not have the financial ability to complete the transaction was immature and is based on assumption that he did not have requisite funds in the bank account regarding which he had issued the cross cheque in favour of the Petitioner because payment could have been made in cash or through pay order from another account or by any other means. The Petitioner was bound to initiate the process of sale transaction and may well have required the payment of balance sale consideration through pay order or cash or by any other mode at the time of execution of sale deed or transfer of the suit property before LDA but that time did not arrive due to lapse on the part of the Petitioner. The Petitioner had stated in her written statement that she had issued notices dated 06.05.2014, 14.05.2014 and 22.05.2014 but the same were not brought on record and were issued after the target date of 05.05.2014. Although, the Respondent had not pleaded that he paid Rs. 2,100,000/- to the Petitioner to facilitate her to clear the mortgage qua the suit property yet the same fact was revealed by the Petitioner in her written statement, perusal thereof shows that the said amount was deposited by the Respondent in the bank account of the Petitioner on 28.05.2014 but the same was returned vide cheque dated 02.06.2014. Both the above dates are beyond the target date which depicts that the said amount was extended merely to redeem the mortgage over the suit property which had not been cleared before the target date. The Petitioner had clearly undertaken in the Agreement that the suit property was free from all charges or liens but Mark-D on record shows that the suit property had been mortgaged to one Abdul Sattar (the Petitioner in connected C. R. No. 32672 / 2022) on 30.09.2013, for a period of two years, redeemable on three months' notice upon payment of mortgage money. Notwithstanding the validity of the mortgage deed, as an attending circumstance, it is established that payment of Rs. 2,100,000/- was infact for redeeming the mortgage since the amount of Rs. 2,100,000/- matches with the amount of mortgage money and further proves that the factum of mortgage was not incorporated in the LDA record which shows the conduct of the Petitioner that she not only concealed the fact of mortgage in the Agreement but also failed to clear the suit property from all encumbrances before the target date. As such, the Petitioner was not in a position to hand over vacant possession of the suit property to the Respondent at the target date.

2025 M L D 367

[Lahore]

Before Muhammad Amjad Rafiq, J

Kamran Mushtaq---Petitioner

Versus

The State and 2 others---Respondents

Criminal Revision No. 56647 of 2024, decided on 18th November, 2024.

Juvenile Justice System Act (XXII of 2018)---

----S. 8---Determination of age of accused person claiming himself to be a minor---Reliance of Court on medical evidence as opposed to document, evidence---Application for production of documentary evidence to declare the petitioner as juvenile was rejected---Validity---Section 8 of Juvenile Justice System Act, 2018, ("Act, 2018") used word "inquiry" to determine the age of person on the basis of birth certificate, educational certificate or any other document, primarily to be made by the police and then by Magistrate before order for further detention---Thus, documents primary or secondary, in support of age of accused, shall not be accepted at the whims of the parties without verification but on the touchstone of admissibility rules contained in the Qanun-e-Shahadat Order, 1984---Enactment of S.8 of Act, 2018 required the police to collect material for and against claim of juvenility to save precious time of the Courts so as to avoid unnecessary entangling in summoning of stary records on the applications of the parties, as was the requirement of S. 7 of erstwhile law i.e., Juvenile Justice System Ordinance, 2000---Thus, once the police opinion is made available to the Court with documentary proof or with medical examination report, it becomes easy for it to conduct a prompt inquiry for early determination of age of accused which earlier took months to achieve---Such beneficial provision requires that concerned Court on receiving juvenile-challan shall start inquiry to check the veracity of material through the process of verification while calling reports from concerned public offices or school with authorized persons as witnesses whose testimonies shall be recorded in chief with cross-examination and then the Court shall pass an order---Hence, the age of the accused shall only be accepted on the basis of documents after proper inquiry---If after inquiry into such documents, Court rejects them, then it must direct for medical examination---Every accused who is under the charge of murder is liable to sentence of death if the case stands proved, therefore, to avoid death penalty accused is duty bound to prove his claim of being juvenile on the basis of true documents, and burden of proof lays on him---In the present case as per allegation in FIR, deceased was murdered due to firing by the petitioner in the presence of witnesses---Occurrence took place on 28.05.2023; accused claimed his date of birth as 11.11.2005---Trial Court while summoning record of police, NADRA and school along with witnesses conducted a thorough inquiry and it was found that police had not mentioned the age of accused in police case diary on his arrest and kept it blank and accused also did not raise plea of juvenility throughout investigation---Birth certificate of the petitioner was obtained on the basis of civil suit filed after the occurrence---Earlier Form "B" obtained in year 2019 was not based on any authentic document and school leaving certificate also had volunteer entry of date of birth without any proof---Trial Court had no other choice except to call for a medical examination report as required by S.8 of Act, 2018---Report duly signed by five specialist doctors reflected age of petitioner as 21-22 years, which was above the grace margin of 1-2 years---Trial Court while rejecting documents tendered by the petitioner opted to rely on medical report, thus, had not committed any illegality or irregularity so as to warrant any interference by the High Court---Petition was dismissed accordingly.

""2017 SCMR 633; Khushal v. The State 2018 YLR 1605; Ahmad Khan v. The State and another 2003 YLR 315; Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and 2 others PLD 2004 SC 758 Mehran v. Ubaid Ullah and others PLD 2024 SC 843; Khawar Kayani v. The State and others PLD 2022 SC 551; Muhammad Ishaq v. Muhammad Nadeem and another 2002 SCMR 440; Saleem Khan v. The State and others PLD 2020 SC 356 and Om Prakash v. State OF Rajhistan and another 2012 SCMR 1400 ref.

P. Sirajuddin v. Government of Madras, represented by the Chief Secy., Madras and others AIR 1968 Madras 117; Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and 2 others PLD 2004 SC 758; Muhammad Aslam and others v. The State and another PLD 2009 SC 777; Sajjad Rasul v. Arslan Zain-ul-Abidin 2021 MLD 2088; Mirwise v. Mohib-ur-Rehman, SI/Sho Police Station, Loralai and another 2021 PCr.LJ 1032; Saqlain v. The State and others 2020 PCr.LJ 374; Muhammad Ayyaz v. The State 2018 PCr.LJ 132; Javed Ullah v. The State 2012 YLR 2076; Om Prakash v. State of Rajhistan and another 2012 SCMR 1400; Zuhaib Zafar v. The State 2006 YLR 2052; Dost Muhmammad v. The State 2020 MLD 1384 and Muhammad Anwar v. Muhammad Suffyian and another 2009 SCMR 1073 rel.

Mst. Bushra Qamar for Petitioner.

Ms. Noshe Malik, Deputy Prosecutor General for the State.

Malik Muhammad Akbar Awan for Respondent No. 2.

Date of hearing: 8th November, 2024.

Judgment

Muhammad Amjad Rafiq, J.---Through this petition orders dated 03.08.2024 and 10.09.2024 passed by the learned Additional Sessions Judge, Bhera District Sargodha were assailed by the petitioner on the ground that while relying on medical report/ossification test, the documentary evidence produced by the petitioner in support of his application to declare him the juvenile within the meanings of Juvenile Justice System Act, 2018 was rejected.

1. Learned counsel for the petitioner contends that Section 8 of the Juvenile Justice System Act, 2018 (JJSA 2018) put a primary duty upon the police to ascertain the age of the accused on the basis of birth certificate, educational certificate or any other pertinent documents, and in the absence of such documents police may obtain a medical report; but once the police decide that accused is juvenile, the Court cannot further dilate upon the veracity of such opinion, and jurisdiction of the Court arises only when police fails to perform its duty. According to her, the Court can draw such power under Section 4(7) of the JJSA, 2018 as held in a case reported as "Saleem Khan v. The State and others" (PLD 2020 Supreme Court 356). Further states that in this case, challan of the accused/ petitioner was sent as juvenile offender therefore, learned trial Court was not authorized to conduct inquiry so as to reject the documents available in the form of birth certificate, Form of NADRA (National Database and Registration Authority) and school leaving certificate. Also states that as opposed to mandate of Section 8 of the JJSA, 2018 learned trial Court has preferred to obtain medical report without legal justification. She claims that according to the educational and other documents, age of the petitioner was less than 18 years, whereas, as per medical report, his age was counted as 21/22 years thus, Court should have given preference to the educational & other documents over the medical report or when two divergent opinions are on the record, one favourable to the accused should have been adopted. In support of her arguments she has placed reliance on the cases reported as "" (2017 SCMR 633), "Khushal v. The State" (2018 YLR 1605), "Ahmad Khan v. The State and another" (2003 YLR 315) and "Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and 2 others" (PLD 2004 SC 758). She says that JJSO 2018 is a special law which has been enacted to save guaranteed rights of juvenile offenders which cannot be taken away lightly. Reliance was also placed on cases reported as "Mehran v. Ubaid Ullah and others" (PLD 2024 SC 843) and "Khawar Kayani v. The State and others" (PLD 2022 SC 551). Her last submission was that unless the documents produced in support of juvenility are held fraudulent or bogus, they are to be relied upon. In this respect she has referred the case reported as "Muhammad Ishaq v. Muhammad Nadeem and another" (2002 SCMR 440).

2. On the other hand, learned counsel for respondent No.2 opposed the contentions on the ground that though it is the duty of police to assess the age of the offender during investigation for which they are bound to make an inquiry but in this case, neither the accused claimed himself as juvenile throughout the investigation nor his age was written in the case diary on his arrest and police has not also made any inquiry rather on conclusion of investigation, with the connivance of the accused party, in already drafted challan inserted the word "juvenile"; therefore, when the police have not made the inquiry, it was incumbent upon the Court under Section 4(7) of the JJSA, 2018 to conduct a proper inquiry, as explained in the case reported as 'Saleem Khan v. The State and others' (PLD 2020 SC 356). Further stated that authenticity of the document is to be decided before accepting it in favour of any party because if the documents submitted before the Court are accepted without verification, it would open a situation when the offender would manage ante-date documents to assert juvenility, as has been done in this case. Further states that when documents are ambiguous then only option left with the Court is to seek and rely on the medical examination report. In this respect he has placed reliance on a case reported as "Om Prakash v. State oF Rajhistan and another" (2012 SCMR 1400). Thus, he supported and defended the impugned orders. Learned Deputy Prosecutor General argued that it is the duty of prosecution to scrutinize the report under section 173, Cr.P.C. and point out defects therein; therefore, concerned District Prosecutor must have raised objection about proof in respect of juvenility before sending the case to the Court which has not been done in this case.

3. Heard. Record perused.

4. In order to determine the legal position, it is essential to reproduce Section 8 of the JJSA, 2018.

8. Determination of age. ---(1) Where a person alleged to have committed an offence physically appears or claims to be a juvenile for the purpose of this Act, the officer-in-charge of the police station or the investigation officer shall make an inquiry to determine the age of such person on the basis of his birth certificate, educational certificates or any other pertinent documents. In absence of such documents, age of such accused person may be determined on the basis of a medical examination report by a medical officer.

(2) When an accused person who physically appears to be a juvenile for the purpose of this Act is brought before a Court under section 167 of the Code, the Court before granting further detention shall record its findings regarding age on the basis of available record including the report submitted by the police or medical examination report by a medical officer.

Section 8 of JJSA 2018 used word "inquiry" to determine the age of person on the basis of birth certificate, educational certificate or any other document, primarily to be made by the police and then by Magistrate before order for further detention. It is trite that object of the inquiry is to determine the truth or falsity of certain facts in order to take further action thereon as held in a case reported as "P. Sirajuddin v. Government of Madras, represented by the Chief Secy., Madras and others" (AIR 1968 Madras 117). The Supreme Court of Pakistan in a case reported as "Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and 2 others" (PLD 2004 SC 758), has declared that the inquiry for age determination is a form of judicial proceedings calling for application of Qanun-e-Shahadat Order, 1984 (the Order), which says it applies to all judicial proceedings in or before any Court. Thus, documents primary or secondary, in support of age of accused, shall be not be accepted at the whims of the parties without verification but on the touchstone of admissibility rules contained in the Order. Reliance in this respect is place on a case reported as "Muhammad Aslam and others v. The State and another" (PLD 2009 SC 777), wherein it was held as under;

"Entertaining documents handed down from across the bar and then acting upon the same, would be fraught with the danger of the courts being misled into passing unwarranted orders. Such-like documents should never be accepted without being tested for their authenticity and genuineness which would be possible only if the procedure prescribed by the said Order of 1984 was followed and where the accused was also put through the requisite medical examination."

1. Firstly, Let's see the requirement of section 8 ibid, which says that 'in the absence of documents', age of accused may be determined on the basis of a medical examination report. Absence of documents does not mean that there is no document at all rather it means absence of authentic, correct and true documents as admissible in evidence. Inquiry for age determination is like a voir dire process (trial within trial) which cannot be left at the mercy of police. Enactment of section 8 ibid requires the police to collect material for and against claim of juvenility to save precious time of the Courts so as to avoid unnecessary entangling in summoning of stary records on the applications of the parties, as was the requirement of section-7 of erstwhile law i.e., Juvenile Justice System Ordinance, 2000. Thus, once the police opinion is made available to the Court with documentary proof or with medical examination report, it becomes easy for it to conduct a prompt inquiry for early determination of age of accused which earlier takes months to reach out. This beneficial provision requires that concerned Court on receiving Juvenile-challan shall start inquiry to check the veracity of material through the process of verification while calling reports from concerned public offices or school with authorized persons as witnesses whose testimonies shall be recorded in chief with cross-examination and then the Court shall pass an order. Supreme Court of Pakistan has also passed like direction through case reported as "Muhammad Aslam and others v. The State and another" (PLD 2009 SC 777), that Court should call upon the parties to lead their evidence oral or documentary with a right to the other party to test the veracity or the genuineness of the same in accordance with law and then to arrive at a judicial decision in terms thereof." Such direction was also followed in cases reported as "Sajjad Rasul v. Arslan Zain-ul-Abidin" (2021 MLD 2088); "Mirwise v. Mohib-ur-Rehman, Si/Sho Police Station, Loralai and another" (2021 PCr.LJ 10320); "Saqlain v. The State and others" (2020 PCr.LJ 374); "Muhammad Ayyaz v. The State" (2018 PCr.LJ 132) and "Javed Ullah v. The State" (2012 YLR 2076). Form the above discussion, it is clear the age of the accused shall only be accepted on the basis of documents after proper inquiry. If after inquiry into such documents, Court rejects them, then it must direct for medical examination. Reliance is placed on cases reported as "Om Prakash v. State of Rajhistan and another" (2012 SCMR 1400);"Zuhaib Zafar v. The State" (2006 YLR 2052) and "Dost Muhmammad v. The State" (2020 MLD 1384).

2025 M L D 376

[Lahore (Multan Bench)]

Before Muhammad Sajid Mehmood Sethi and Faisal Zaman Khan, JJ

Sardar Muhammad Umer Khan Khosa---Petitioner

Versus

Election Commission of Pakistan, Islamabad through Chief Election Commissioner, Islamabad and 8 others---Respondent

W.P. No. 4216 of 2024, heard on 4th April, 2024.

(a) Elections Act (XXXIII of 2017)---

----S.62(9)(c)---Election for seat of Provincial Assembly---Scrutiny---Nomination paper, rejection of---Rejection of nomination paper of the petitioner on the ground of non-submission of requisite NOCs. and attachment of transcript of his brother---Validity---As per NOCs no liability was existing against petitioner, who claimed that the same were presented before the Returning Officer before expiry of the scheduled date and time for scrutiny of nomination papers and this fact had not been negated by the other side---Omission to tender the NOCs while filing nomination papers was not a lapse/defect of such a grave nature which could invite extreme measure of rejection of the nomination papers and such an omission could have been fatal if it was designed to avoid the liability or intended to conceal some unlawful activity---Alleged mistake of filing transcript of petitioner's brother was not a defect of such a nature which could attract any express provision qua disqualification or rejection of nomination papers provided in the Elections Act, 2017---Neither any specific direction was issued by the Returning Officer nor a fair opportunity was provided to petitioner to cure the said defects/lapses, which was not a proper exercise of jurisdiction and such material aspect of the matter also escaped the notice of Election Tribunal---Constitutional petition was allowed, in circumstances.

Malik Shakeel Awan v. Sheikh Rasheed Ahmed and 21 others PLD 2018 SC 643; Khawaja Muhammad Asif v. Muhammad Usman Dar and others 2018 SCMR 2128; Nida Khuhro v. Moazzam Ali Khan and others 2019 SCMR 1684; Shamona Badshah Qaisarani v. Election Tribunal, Multan and others 2021 SCMR 988 and Amir Raza and another v. Provincial Election Commission through DEO and 5 others 2016 YLR 431 rel.

(b) Constitution of Pakistan---

----Art.17(2)---Elections Act (XXXIII of 2017), Preamble---Right to contest election---Scope---Right to contest election is a fundamental right guaranteed by Art.17(2) of the Constitution and the provisions in Elections Act, 2017, that curtail or in any manner affect this right are to be construed strictly and applied restrictively, especially when the defect is not of substantial nature and can be remedied.

Tahir Sadiq v. Faisal Ali, and others Civil Petitions Nos.150 and 152 of 2024 and Pervez Elahi v. Election Commission of Pakistan, and others Civil Petition No. 181 of 2024 rel.

Mubeen-ud-Din Qazi for Petitioner.

Muhammad Asad, Political Assistant/Returning Officer, PP-290, D.G. Khan-V.

Tahir Mehmood and Fayaz Hussain Khan Laghari for Respondents Nos. 3 and 7.

Muzaffar Hussain for Respondent-Election Commission of Pakistan.

Kashif Nadeem Malik, Assistant Attorney General.

Date of hearing: 4th April, 2024.

Judgment

Muhammad Sajid Mehmood Sethi, J.---Through instant petition, petitioner (Sirdar Muhammad Umer Khan Khosa) has assailed order dated 21.03.2024, passed by the Returning Officer and judgment dated 27.03.2024, passed by learned Election Tribunal, respectively, whereby his nomination papers for the constituency PP-290, D.G. Khan-V were rejected on the grounds of non-submission of requisite NOCs and attachment of transcript of petitioner's brother, concurrently.

1. Learned counsel for petitioner submits that the Returning Officer is empowered to ask for requisite NOCs from concerned departments even if the same are not attached with the nomination papers but the needful was not done. He adds that petitioner furnished the NOCs before the date of scrutiny of the nominations papers, however the same were discarded without any lawful justification. He alleges that transcript of petitioner's brother was detached from the nomination papers of his brother and included in the nomination papers of petitioner making a ground for rejection of nomination papers malafidely, however argues that petitioner's nomination papers were liable to be accepted even without the transcript of his brother as academic qualification of LLM was not a condition precedent for a candidate to contest the general elections. He contends that even otherwise, petitioner is a law graduate and holding a degree of LLM, which was attached with his nomination papers. He contends that even no opportunity was provided to petitioner to explain his position and cure the bona fide mistake, if any. He finally submits that relevant provisions of the Elections Act, 2017 have been misconstrued while passing the impugned decisions, which are unsustainable in the eye of law.

2. Conversely, learned counsel for Election Commission of Pakistan and learned Assistant Attorney General, who argued W.P.No.4005 of 2024 fixed today, have shown their willingness to advance arguments in this case. They defended the impugned decisions by submitting that it was a case of non-fulfillment of pre-requisites while filing nomination papers, thus, the same were rightly rejected within the contemplation of section 62(9)(c) of the Elections Act, 2017.

Admittedly, respondents Nos.3 and 7 did not raise any objections before the Returning Officer against nomination papers of petitioner, however they have tendered appearance today, on watching brief, and contested W.P.No.4005 of 2024 fixed today, therefore, they are allowed to argue the matter. Learned counsel for respondents Nos.3 and 7 have supported the stance of learned counsel for Election Commission of Pakistan. The remaining private respondents were not in attendance in W.P.No.4005 of 2024 fixed today despite notice and proceeded against ex parte, therefore, we are not inclined to issue notice to them in this case, which is being decided in their absence after hearing arguments of parties who entered appearance in this case.

1. Arguments heard. Available record perused.

2. The grounds prevailed upon the Returning Officer to reject petitioner's nomination papers, concurred by learned Election Tribunal, are non-provision of requisite NOCs from MEPCO, PTCL, Municipal Committee and SNGPL and attachment of transcript of petitioner's brother. The available record reflects that NOCs from MEPCO, Municipal Corporation, Dera Ghazi Khan and PTCL are dated 20.03.2024 and clearance letter / certificate from SNGPL, signed by Muhammad Jamil Rasheed, Dy. Chief Engineer, is dated 02.01.2024, however signatures of Abdul Rasheed Janjua, Billing Officer are dated 18.03.2024. It is manifestly clear from the tenor of the said NOCs that no liability was existing against petitioner. Petitioner has claimed that these NOCs were presented before the Returning Officer before expiry of the scheduled date and time for scrutiny of nomination papers and this fact has not been negated by the other side before us. In this scenario, the omission to tender the said requisite NOCs while filing nomination papers is not a lapse / defect of such a grave nature which may invite extreme measure of rejection of the nomination papers. This lapse could have been fatal if it was the omission was designed to avoid the liability or intended to conceal some unlawful activity. In this backdrop, the impugned decisions are not legally sustainable. Reference can be made to Malik Shakeel Awan v. Sheikh Rasheed Ahmed and 21 others (PLD 2018 Supreme Court 643), Khawaja Muhammad Asif v. Muhammad Usman Dar and others (2018 SCMR 2128), Nida Khuhro v. Moazzam Ali Khan and others (2019 SCMR 1684), Shamona Badshah Qaisarani v. Election Tribunal, Multan and others (2021 SCMR 988) and Amir Raza and another v. Provincial Election Commission through DEO and 5 others (2016 YLR 431).

3. Petitioner has seriously disputed the fact of attachment of transcript of LLM of petitioner's brother with his nomination papers, and this denial coupled with allegation of some sort of mala fide act on the part of the Returning Officer raises a factual dispute, which we are not inclined to dilate upon. However, we are persuaded that petitioner's transcript of LLM was not required to be filed along with the nomination papers. We are also of candid opinion that the alleged mistake of filing transcript of petitioner's brother is not a defect of such a nature which may attract any express provision qua disqualification or rejection of nomination papers provided in the Elections Act, 2017.

2025 M L D 385

[Lahore]

Before Muhammad Waheed Khan, J

Muhammad Waqas Gill---Petitioner

Versus

Riffat Awan and 3 others---Respondents

Criminal Revision No. 1601 of 2022, decided on 27th December, 2024.

(a) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 6(5)(b) [as amended by Punjab Muslim Family Laws (Amendment) Act (XIII of 2015)]---Second marriage contracted by husband without permission of first wife---Appreciation of evidence---Delay of more than three years in filing the complaint---Consequential---Record showed that there was no denial of the fact that the petitioner had contracted marriage with Mst. KS, on 27.09.2015, during subsistence of the first marriage with the respondent (first wife), without getting the requisite permission---However, the respondent did not object to the second marriage of the petitioner for about 3½ years, as she filed the complaint on 05.04.2019, and by said date, she had already been divorced by the petitioner, which factum could be duly verified from the divorce deed, registration certificate and the certificate of effectiveness issued by the Arbitration Council, according to which the divorce was pronounced on 03.12.2018, whereas it was given effect on 13.03.2019---Such facts showed that mala fide on the part of respondent was manifestly oozing from the facts and circumstances of the case---Appeal against conviction was allowed in circumstances.

(b) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 6(5)(b) [as amended by Punjab Muslim Family Laws (Amendment) Act (XIII of 2015)]---Family Courts Act (XXXV of 1964), S. 20(3)---Second marriage contracted by husband without permission of first wife---Appreciation of evidence---Jurisdiction of the Court---Perusal of subsection (3) of the S.20 of the Family Courts Act, 1964, showed that only a Family Court could take cognizance of the offence on the complaint of the Union Council, Arbitration Council or an aggrieved party and obviously the respondent (first wife) was the aggrieved party---However, on going through the judgment rendered by Trial Court, it was straightway noted that in the head-note it was written "IN THE COURT OF MAGISTRATE SEC: 30, and even in the whole proceeding, including the evidence and the interim order-sheet, there was no affixation of any stamp of a Judge Family Court---Only the Family Courts were given the exclusive jurisdiction to entertain the issue and adjudicate upon the matters specified in [Part-1 of the Schedule], so, the conducting of the trial by the Judicial Magistrate was certainly coram non-judice and a nullity---Appeal against conviction was allowed, in circumstances.

(c) Administration of justice---

----When the law required doing things in a particular manner, such things have to be done in that manner and all other modes stand excluded.

Muzaffar Nawaz v. Ishrat Rasool and others 2022 YLR 1920 rel.

Muhammad Iftikhar Ullah Dhillon for Petitioner.

Ghulam Ullah Khan for Respondent No. 1.

Ms. Rahat Majeed, Assistant District Public Prosecutor for the State.

Date of hearing: 20th December, 2024.

Judgment

Muhammad Waheed Khan, J.---Petitioner, Muhammad Waqas Gill, was tried by learned Magistrate Section 30, Shakargarh, who vide judgment dated 20.12.2019 convicted him under section 6(5)(b) of the Muslim Family Laws Ordinance, 1961 (the Ordinance) on account of contracting second marriage with one Kanwal Shehzadi on 27.09.2015, without permission from the respondent No.1 and the Arbitration Council and sentenced him as under;-

Fifteen days SI and fine of Rs.70,000/- and in case of non-payment of fine, he shall further undergo SI for 05-days.

1. The petitioner challenged the judgment of the learned Magistrate by filing criminal appeal and respondent No.1 also challenged the same judgment by filing Crl. Revision for enhancement of sentence of the petitioner. Both the matters i.e. Crl. Appeal and Crl. Revision were dismissed by the learned Additional Sessions Judge, Shakargarh through consolidated judgment dated 08.09.2021.

2. Through this petition, the petitioner has challenged judgments of both the learned courts below.

3. The facts of the case are that the petitioner contracted love marriage with respondent No.1 on 18.11.2014 as per Shariah Law and during subsistence of marriage, they were not blessed with any issue. Thereafter, the petitioner contracted second marriage on 27.09.2015, during the subsistence of first marriage without taking permission from the Arbitration Council. Being offended from the above said act of the petitioner, respondent No.1/complainant filed a complaint in terms of above provision of law of the Ordinance, titled "Rifat Awan v. Muhammad Waqas Gill' before the learned Magistrate Section 30, Shakargarh and on culmination of the same, the petitioner was held guilty and awarded punishment, as stated above.

4. The crux of arguments of learned counsel for the petitioner was that the complaint filed by the respondent/complainant before the learned Magistrate Section 30 was corum non-judice, as it can be tried only by the Family Court and; the complaint by the respondent was filed with mala fide, as the same had been filed by respondent No.1 after 3 1/2 years of the divorce, hence, both the impugned judgments are nullity in the eye law.

5. Conversely, learned counsel for the respondent, while taking exception to the arguments made by the learned counsel for the petitioner contended that since the charges against the petitioner have been fully proved and substantiated during the course of trial, so, dealing the complaint of respondent, by a wrong forum could hardly affect the merits of the case and the matter be decided on merits and technicalities should not become hurdle in the way of justice. However, the learned law officer, while supporting the arguments advanced by learned counsel for the petitioner submits that, in fact, the learned trial court (Magistrate Section 30), was never given the powers of Family Court, so, according to the relevant provisions of the Ordinance, the said court had no jurisdiction in the matter, therefore, the entire proceedings, including the judgment rendered by the learned appellate court would stand vitiated.

6. I have heard, learned counsel for the parties and the learned law officer and gone through the record with their assistance and noted that there is no denial of the fact that the petitioner has contracted marriage with Mst. Kanwal Shehzadi, on 27.09.2015, during subsistence of the first marriage with the respondent, without getting the requisite permission, however, I have noted that the respondent had not objected the second marriage of the petitioner about 3 1/2 years, as she had filed the complaint on 05.04.2019 and it is also worth mentioning here that till that date, she had already been divorced by the petitioner, which factum could be duly verified from the divorce deed, registration certificate and the certificate of effectiveness issued by the arbitration council, according to which the divorce was pronounced on 03.12.2018, whereas it was given effect on 13.03.2019. When confronted about the filing of the complaint by the respondent with such a delay, learned counsel for the respondent submits that in fact she was not aware of contracting second marriage by the petitioner, however, learned counsel for the petitioner has drawn my attention towards the photographs, exhibited before the learned Trial Court, showing that the real sisters of the respondent and other family members had participated in the second marriage of the petitioner. So, one thing is obvious, that the respondent had never objected to the second marriage of the petitioner, until she was divorced and she filed the criminal complaint against the petitioner with a delay of about 3 1/2 years from contracting his second marriage and that too, after her divorce, so, mala fide on her part is manifestly oozing from the facts and circumstances of the case. Now, adverting to the moot point raised by learned counsel for the petitioner qua the jurisdiction of the learned Magistrate Section 30, to entertain and decide the criminal complaint under the Ordinance. So, it would be in the fitness of things to reproduce the relevant provisions of section 5 of the West Pakistan Family Courts Act, 1964, which are as under:-

"5. Jurisdiction. [(1)] Subject to the provisions of the Muslim Family Law Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon matters specified in [Part 1 of the Schedule]

[(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), the Family Court shall have jurisdiction to try the offences specified in Part 11 of the Schedule, where one of the spouses is victim of an offence committed by the other.

(3) The High Court may with the approval of the Government, amend the Schedule so as to alter, delete or add any entry thereto".

And through amendment in the Punjab Family Court (Amendment)Act, 2015 (XI of 2015) dated 18.3.2015 a Family Court was given the power of the Judicial Magistrate 1st Class under the Cr.P.C., 1898 for the purpose of taking cognizance and trial of any offence under The Muslim Family Laws. The relevant amendments are reproduced as under:-

Punjab Amendment:

(20 Family Court as Judicial Magistrate. (1) A Family Court shall be deemed as the Judicial Magistrate of the first class under the Code of Criminal Procedure, 1898 (V of 1898) for taking cognizance and trial of any offence under this Act; the Muslim Family Laws Ordinance, 1961 (VII of 1961); and, the Child Marriage Restraint Act, 1929).

(2) A Family Court shall conduct the trial of any offence under subsection (1) in accordance with the provisions of Chapter XXII of the Code of Criminal Procedure, 1898 (V of 1898) relating to the summary trials.

(3) An offence other than contempt of a Family Court shall be cognizable on the complaint of the Union Council, Arbitration Council or the aggrieved party]

2025 M L D 395

[Lahore]

Before Shams Mehmood Mirza, J

Higher Education Commission through Regional Director---Petitioner

Versus

Federation of Pakistan through Ministry of Law, Islamabad

and others---Respondents

W.P. No. 19550 of 2020, decided on 24th September, 2024.

Punjab Urban Immovable Property Tax Act (V of 1958)---

----S.4(a)---Constitution of Pakistan, Art.199---Constitutional petition---Issuance of challan for payment of property tax---Higher Education Commission ('HEC'), status of---HEC assailed the challan on the ground that HEC being government subject was exempt from payment of property tax---Validity---Section 4(a) of the Punjab Urban Immovable Property Tax Act, 1958, was amended by the Punjab Urban Immovable Property Tax (Punjab Amendment) Act, 1975, and the expression 'vesting in' as contained in the original provision was substituted by 'owned by', which in its connotation has narrow scope---In view of obiter dicta of the Supreme Court provided in the judgment reported as 2023 SCMR 1077 the HEC could not be equated with the Government hence, contention of the petitioner that it was a Government subject was repelled---Even the obiter of the Supreme Court was binding on the High Courts---Constitutional petition was dismissed, in circumstances.

Higher Education Commission H/9, Islamabad through Project Director v. Allah Bakhsh and others 2023 SCMR 1077 rel.

Rana Iqbal along with Hamyun, Law Officer HEC for Petitioner.

Sheraz Zaka, Assistant Attorney General, Asghar Leghari, Assistant Advocate General and Nasrullah, Inspector for the State.

Order

Shams Mehmood Mirza, J.---Higher Education Commission has challenged the Challans issued by the respondents requiring it to pay property tax. A further declaration has also been sought from this Court to the effect that the petitioner is exempt from payment of the property tax.

1. It is the case of the petitioner that it is an instrumentality of the Federal Government and that Federal Government has complete administrative control over it. It is furthermore submitted that it is the sovereign function of Federal Government to maintain the standard of the Higher Education Commission which is exclusively performed by the petitioner. In the circumstances, it is argued that the demand made through the Challans requiring it to pay property tax is illegal and that it is exempt from payment of property tax on the properties owned by it in the Province of Punjab.

2. Report and parawise comments have been filed on behalf of the respondents in which the stance of the petitioner has been controverted. Learned Assistant Attorney General submits that by virtue of section 4(a) of the Punjab Urban Immovable Property Tax Act 1958 (thy Act) the petitioner does not enjoy any exemption in respect of property tax.

3. Section 4 of the Act deals with the "exemptions". The said provision is reproduced hereunder as so far is relevant:

4. Exemptions: The tax shall not be leviable in respect of the following properties, namely:

(a) buildings and lands other than those leased in perpetuity, owned by the Federal Government;

This provision was amended by the Punjab West Pakistan Urban Immovable Property Tax (Punjab Amendment) Act, 1975 (XXI of 1975) and the expression "Vesting in" as contained in the original provision was substituted by "owned by". The respondents have rightly argued that the expression "vesting in" has a wider connotation and that by the amendment made in the year 1975 in section 4(a) its scope has to be narrowly interpreted.

2025 M L D 401

[Lahore (Rawalpindi Bench)]

Before Jawad Hassan, J

Irfan Arshad---Petitioner

Versus

Mst. Zainab Noor and 2 others---Respondents

Writ Petition No. 452 of 2024, heard on 23rd December, 2024.

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

----Ss. 7 & 25---Constitution of Pakistan, Art. 199---Custody of minor---Welfare of minor---Determining factors---Scope---Judgments at variance---Guardian petition filed by maternal grandmother/ respondent through her daughter being special attorney against the father of minor/petitioner was dismissed by the Guardian Court, but the same was allowed by the Appellate Court---Petitioner challenged appellate decision through a constitutional petition in which despite grant of stay of execution proceedings, executing court went on to pass the impugned orders and handed over the custody of the minor---Validity---Paramount and supreme consideration in custody of minor is the welfare of minor and nothing else---Any issue regarding the custody of minor is to be assessed, examined and measured by the Guardian Courts on such yardstick and the Court has to record a definite finding on the point before passing any order in the matter---Guardian Court, while passing order, has to see the age, sex, environment under which the minor is being brought up and all the attending circumstances, position of parties and also the law to which the minor is subject to---Nothing had been alleged against petitioner, which could disqualify or disentitle him from custody of the minor---Petitioner had better capacity to look after and educate his daughter and did not have any disqualification envisaged by law and even otherwise he right from inception was vigorously pursuing the remedies to obtain the custody of his daughter, whereas the respondent/maternal grandmother was aged about 80 years and in bad health having no source of income---Factum of ailment of the respondent was admitted by her daughter being her special attorney during her cross-examination---Respondent was fully dependent on her daughters, who were working ladies and most of the time they remained at their job places and one of them converted from Islam to Bahai religion---Minor was studying at Lahore after shifting from Rawalpindi to Lahore and she was getting proper education at a private school---Executing Court instead of complying with the stay order passed by High Court proceeded to continue execution proceedings, which was highly objectionable---High Court directed the District Judge to probe into the matter and submit a report for further necessary action---Constitutional jurisdiction vested in terms of Art.199 of the Constitution casts a duty upon the court to curb the illegality or gross misreading committed by any of the courts below, while determining the rights of the parties---Constitutional petitions were allowed, in circumstances.

Faisal Zafar and another v. Siraj-ud-Din and 4 others 2024 CLD 1; Netherlands Financierings Maatschappij Voor Ontwikkelingslanden N.V. (F.M.O) v. Morgah Valley Limited and SECP PLD 2024 Lahore 315; Sajida Rehmat Ullah v. Guardian Judge-II and others PLD 2022 Lahore 183; Ghulam Mustafa v. Shamim Akhtar and 2 others 2017 YLR Note 45; Shaista Habib v. Muhammad Arif Habib and others PLD 2024 SC 629 and Hammad Ali Khan and others v. Mst. Sadia Akbar and others 2024 MLD 1445 rel.

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

----S. 25---Custody of minor---Second marriage of spouse---Criterion for disqualification---Scope---Mere second marriage of father or mother is not the sole criterion for custody of the minor child.

Shabana Naz v. Muhammad Saleem 2014 SCMR 343 rel.

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

----S. 25---Muhammad Law by D.F. Mullah, Paras, 353 & 354---Custody of minor---Principles of Muslim Personal Law---Determining factor---Scope---Entitlement as per Muslim Personal Law is not the sole ground for granting custody of a minor to either side rather the determining principle to rule the question of custody of a minor in favour of any side is the question of welfare of minor.

Raja Muhammad Owais v. Mst. Nazia Jabeen and others 2022 SCMR 2123; Mehmood Akhtar v. District Judge Attock and 2 others 2004 SCMR 1839; Firdous Iqbal v. Shifaat Ali 2000 SCMR 838 and Mst. Seema Choudhary v. Ahsan Ashraf Sheikh PLD 2003 SC 877 rel.

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

----S. 25---Custody of minor---Involvement and subsequent acquittal in criminal case---Ground for disqualification---Scope---After registration of FIR against the petitioner/father of minor, he was acquitted by the competent court of law---Such allegation could not be used against the petitioner to declare him of bad character to get the custody of the minor.

Rizwan Ali Sayal v. Federation of Pakistan and others PLD 2024 Lah. 54 rel.

Junaid Ahmad Nawaz Raja for Petitioner.

Asad Ullah Hassan Hashmi and Nasrullah Hassan Hashmi, assisted by Basim Naseer for Respondents.

Dates of hearing: 10th September and 23rd December, 2024.

Judgment

Jawad Hassan, J.---Through this judgment the Court will examine the validity of the judgments [which are at variance] of the Courts below for the welfare of the minor. This constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution") calls in question the vires of consolidated judgment and decree dated 30.01.2024, whereby the Additional District Judge, Rawalpindi, while allowing the appeal of the Respondent No.1, modified the judgment passed by Senior Guardian Judge (Family Division), Rawalpindi. Besides, the Petitioner has also challenged orders dated 01.07.2024 and 02.07.2024 passed by the Family Executing Court, Rawalpindi through separate W.P.No.2050 of 2024 as the same were passed during the pendency of instant petition.

Facts of W.P.No.452 of 2024

1. A guardian petition under Section 25 of the Guardians and Wards Act, 1890 (the "Act") seeking permanent custody of minor Zuria Noor (the "minor"), was filed by Zainab Noor (the "Respondent No.1") before the Senior Civil Judge (Family Division), Rawalpindi on 16.01.2021. The said petition was duly contested by Irfan Arshad (the "Petitioner") through filing of reply. Ultimately, Guardian Petition was declined after framing of issues and recording of oral and documentary evidence adduced by both the parties vide order dated 20.07.2023 and visitation schedule for meeting of the "minor" with the "Respondent No.1" was chalked out. Being dissatisfied from above said order, the parties preferred their respective appeals before the Additional District Judge, Rawalpindi who dismissed the appeal of the "Petitioner" and while accepting that of the "Respondent No.1", vide consolidated judgment and decree, directed to hand over custody of the "minor" to the "Respondent No.1" by also modifying the visitation schedule of the "minor" with the "Petitioner". Then, the "Petitioner", being aggrieved of above said judgment, filed this petition.

Facts of W.P.No.2050 of 2024

1. In addition to the facts narrated above, the "Respondent No.1" filed an application before the Family Executing Court with apprehension of removal of the "minor" by the "Petitioner" from local limits of Rawalpindi. Upon filing of said application, warrants under Section 100 of Code of Criminal Procedure, 1898 (the "Cr.P.C") were issued against the "Petitioner" on the basis of which attorney of the "Respondent No.1" filed petition under Section 491 of the "Cr.P.C" before the District and Sessions Court, Lahore for recovery of the "minor" which was accepted vide order dated 29.06.2024 and temporary custody of the "minor" was handed over to special attorney of the "Respondent No.1" namely Humaira Iram with direction to her to produce the "minor" before the Family Executing Court at Rawalpindi on 02.07.2024. However, the Family Executing Court passed the orders despite stay of execution proceedings by this Court.

2. Pertinently, this Court made efforts to resolve the issue between the parties through mode of mediation as per judgments reported in "Faisal Zafar and another v. Siraj-Ud-Din and 4 others" (2024 CLD 1) and "Netherlands Financierings Maatschappij Voor Ontwikkelingslanden N.V. (F.M.O) v. Morgah Valley Limited and SECP" (PLD 2024 Lahore 315) and for the said purpose, with consent of the parties, mediator was appointed on 04.06.2024 but the mediation remained fruitless therefore, this petition is being decided on merit.

SUBMISSIONS OF THE PARTIES

1. Learned counsel for the Petitioner inter alia argues that the lower Appellate Court has committed error of law while awarding custody of the "minor" to the "Respondent No.1"; that the impugned judgment is unsound, sketchy, absurd, baseless and has been passed without appreciating the contentions of the Petitioner properly; that the "Respondent No.1" is 80 years old lady having multiple health issues and is unable to look after the "minor" and even did not appear in the witness box but this important aspect of the matter has been overlooked by the lower Appellate Court; that the family atmosphere of the "Respondent No.1" is not suitable for the "minor" as the Respondent No.1 herself is dependent on her daughters; that the "minor" needs full care and attention of a father instead of maternal grandmother, therefore, under the law the "Petitioner" is entitled to have the custody of the "minor" but the Additional District Judge, Rawalpindi has failed to properly appreciate these facts.

2. On the other hand, learned counsel for the "Respondent No.1" controverted the stance of the "Petitioner" by supporting the impugned judgment and decree passed by the lower Appellate Court pursuant to proper appreciation of the facts and circumstances of the case.

3. I have heard the arguments of learned counsel for the parties and carefully perused the record.

DETERMINATION BY THE COURT

1. The issue relates to the custody of the "minor", who was born on 08.09.2016 and now is aged about eight years. It is an admitted fact that mother of the "minor" namely Navira Arzo took her last breath on 04.09.2020. The matter in controversy was duly encapsulated by Senior Guardians Judge (Family Division), Rawalpindi while framing three issues but issue No.1 is very pertinent which reads as under :-

1. Whether the welfare of the minor lies with the petitioner? OPP

1. In order to prove her case, Humaira Iram appeared as Special Attorney on behalf of the "Respondent No.1" as AW-1 and in her support, she produced Muhammad Saeed husband of the Respondent No.1 as A-W2. In documentary evidence, affidavit of the "Respondent No.1" was produced as Exh.P-1, special power of attorney of Humaira Iram as Exh.P2, pictures of the "minor" as Exh.P3, WhatsApp Screen Shots of physical torture as Exh.P4, WhatsApp conversation of blackmailing as Exh.P5, Bank Statement of mother of the "minor" as Exh.P6 and USB voice recording of sexual harassment as Exh.P7. On contrary, the "Petitioner" put his appearance in the witness box as RW-1 and in his support produced his affidavit as Exh.R-1, Receipts of School Fee as Exh.R-2, Three Certificate of NGS relating to the "minor" as Exh.R-3, School Report as Exh.R-4 and swimming activity of the "minor" for summer camp as Mark-A-1.

2. The Senior Civil Judge (Family Division), Rawalpindi on the basis of above said evidence, recorded his findings and resultantly proceeded to dismiss custody petition by handing over the custody of the "minor" to the "Petitioner". However, lower Appellate Court reversed the findings and modified the judgment on the inter alia grounds that the "Petitioner" had strained relations with the mother of the "minor" as such had not spent quality time with the "minor"; that the "Petitioner" has contracted second marriage in the month of November, 2020; that the "Petitioner" had no knowledge regarding blood group of the "minor" and even had no knowledge about name of hospital where the "minor" was born; the "Petitioner" had not appended school leaving certificate of the "minor"; that the "Petitioner" had shifted his residence from Rawalpindi to Lahore; that the "Petitioner" had illegally drawn amount from the bank account of the mother of the "minor" without getting succession certificate.

3. Before adverting to the merits of the case, the Court is of the considered view that the utmost priority of the Court in determining the custody of a minor is to see his/her welfare and well-being. This is the reason, law provides a parental jurisdiction to the Guardian Judge in such cases. The objective of the law is not just handing over the custody of the minor, but to examine all the aspects which are ancillary to it. The power and duty of the Court while considering the question of custody of a minor is to thoroughly and comprehensively take into consideration the minor's welfare. The word "welfare" in such cases is to be taken in its widest sense, which includes not only the monetary expenses of the minor but also his mental and physical health, educational needs, psychological well-being, religious and moral values. The Courts are duty bound to consider such cases in the best interest and healthy up-bringing of the minor which sometimes may yield the rights of the parents. No doubt according to certain Muslim jurists, custody of a minor son till the age of seven years may remain with the mother and in the case of minor daughter till she attains the age of puberty and thereafter, normally their custody should be restored to the father. However, it is an established principle of law that the paramount consideration in all such situations would be the betterment of the minor and even a mother may be deprived of the custody of a minor if circumstances of the case so allow. In the cases, concerning the custody of a child, the Guardian Court is not required to go into the intricacies/technicalities of the matter, rather is obliged to confine itself to the extent of the welfare of the child/minor, which is a paramount consideration.

4. The consideration for grant or refusal of custody of minors will always be determined on the basis of their welfare, that is to consider what is in the best interest of the child. The court's jurisdiction in custody cases is in the form of parental jurisdiction which means that the court must consider all factors from the parents' ability to provide for the child including physical and emotional needs, medical care but also relevant is the parents' ability to provide a safe and secure home where the quality of the relationship between the child and each parent is comforting for the child. Hence, there is no mathematical formula to calculate the welfare of the minor, as the factors range from financial and economic considerations to the household environment, the care, comfort and attention that a child gets. Accordingly, the concept of welfare of the child is an all encompassing concept which will cover not only the manner in which the child has to be cared for but will also include the physical, mental and emotional wellbeing of the child. Custody is about the care and comfort of the child and the right of the child to a family. Custody matters are always sensitive and require a great deal of care as the court has to weigh in all factors in order to determine where the welfare of the minor lies. In cases of remarriage, circumstances change, hence, while looking at the welfare of the child, the entire living arrangement and environment has to be reassessed in the context of the welfare of the child. Fundamental to this decision is the best interest of the child and not that of the parent. This Court in case titled as Sajida Rehmat Ullah v. Guardian Judge-II and others (PLD 2022 183) has expounded the concept of welfare and held that welfare is a question of fact and has to be determined on the basis of the material placed before a judge and not on the presumption and is also includes material welfare as well as a sense of adequacy of care to ensure the good health and due personal right are maintained and also it signifies the stability and the security the loving and understanding care and guidance, the warm and compassion made relationship for the essential of the full development of the child on character. The relevant portion of the judgment reads as under:

"Welfare" is an all-encompassing word. On the one hand, "it includes material welfare, both in the sense of an adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained."1On the other hand, it signifies "the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships that are essential for the full development of the child's own character, personality and talents."2 In Rahimullah Choudhury v. Sayeda Helali Begum and others (1974 SCMR 305) the Hon'ble Supreme Court of Pakistan held that "welfare" is a question of fact and has to be determined on the basis of the materials placed before the Judge and not on presumptions.

1. In this case, permanent custody of the "minor" is the main contest between the "Petitioner" (father) and the "Respondent No.1" (maternal grandmother). It evinces from the record that Senior Civil Judge (Family Division), Rawalpindi, vide judgment dated 20.07.2023, declined to handover permanent custody of the "minor" to the "Respondent No.1" due to her ailment and dependency over her daughters. However, at appeal stage and even before this Court, the "Respondent No.1" levelled serious allegations against the Petitioner's character, his involvement in sexual misconduct with sister of his second wife, snatching of the minor from the maternal family in year 2020 and involvement of the "Petitioner" in murder of mother of the "minor". Likewise, the "Petitioner" also levelled allegations against the "Respondent No.1" and her family and the atmosphere prevalent there.

2. Section 25 of the "Act" relates to transfer of the custody of minor if he leaves or is removed from the custody of a guardian of his person. Paramount and supreme consideration in custody of minor is the welfare of minor and nothing else. Any issue regarding the custody of minor is to be assessed, examined and measured by the Guardian Courts on such yard stick and the Court has to record a definite finding on the point before passing any order in the matter. The Guardian Court, while passing order, has to see the age, sex, environment under which the minor is being brought up and all the attending circumstances, position of parties and also the law to which the minor is subject. The "Respondent No.1", after the death of real mother of the "minor", filed petition under Section 25 of the "Act" on 16.01.2021 before the Senior Civil Judge (Family Division), Rawalpindi, contents whereof reveal that it was filed mainly on the grounds inter alia that the "Respondent No.1" is residing with her daughter Humaira Iram who is unmarried and educated lady having good health to look after the "minor"; that the "Respondent No.1" has superior right of custody of the "minor" after the demise of mother of the "minor"; that the "Petitioner" has contracted second marriage and the "minor" is not being looked after in a proper way.

3. The dates qua initiation of litigation between the parties are very relevant. It was all started when the mother of the "minor" namely Navira Arzoo died on 04.09.2020 and date of her death is not disputed by either of the party. It is also not disputed that the "Petitioner" and the mother of the "minor" had strained relations and as per stance of the "Respondent No.1", the "minor" was living with her since birth and was getting education from ACE-International Academy. Perusal of custody petition filed under Section 25 of the "Act" by the Respondent No.1 before Senior Civil Judge (Family Division), Rawalpindi reveal that the "Respondent No.1" did not mention the fact of study of the "minor" at ACE-International School, Bahria Town, Rawalpindi however, the same was agitated by her in appeal and even before this Court by stating that minor Zuria attended the complete sessions 2019-2020 and for the purpose of proving this very fact, relied on Exh.P-3 bare perusal of which reveals that it was neither a school certificate issued by the ACE International Bahria nor the receipts regarding payment of fee etc. Needless to add that though the attorney of the "Respondent No.1" during cross-examination deposed that "the "minor" was studying at ACE International Academy Bahria" but no documentary proof in this regard was ever produced even before the Guardian Court or before the Additional District Judge, Rawalpindi. She further admitted and deposed that "I have not produced the source of Exh.P.3 and Exh.P.4 and Exh.P.5, Exh.P.7". If it is considered as correct for the sake of arguments that such documents could not be exhibited or were not in possession at that time, even then the "Respondent No.1" could produce the same by filing application for production of additional documents but this opportunity, provided by law, was never availed. Further, the Additional District Judge observed that "the minor was emotionally attached with her mother till she remained alive and did get proper education at Rawalpindi". Evidence produced by the "Respondent No.1" reveals that only Exh.P-3 was produced as proof of getting education at ACE International Rawalpindi, perusal of which reveals that it is only a picture of the "minor" doing some painting. No supporting document qua admission form, payment receipts etc. in the said school was ever produced. On the other hand, the "Petitioner" produced Exh.R-3, Bona fide Certificate dated 20.06.2023 certifying by NGS Preschool, Askari 11 Campus, Lahore that Zuria Arzoo Irfan daughter of Irfan Arshad I.D.No.222045 is student of NGS from last two years, session starting from August, 2021. Besides this, the "Petitioner" produced Exh.R-2, receipts of school fee, Exh.R-4 School Report May, 2023 and swimming activity for summer camp as Mark-A1. Education is the basic element for building the character of a minor child and transforming his/her personality and even otherwise no material has been produced by the "Respondent No.1" from where it can be seen that the "minor" got education from ASE International School Bahria, Rawalpindi.

4. So far as the question of shifting of the "Petitioner" from Rawalpindi to Lahore is concerned, it was held by the Additional District Judge, Rawalpindi that the Petitioner shifted his residence on 18.02.2021 and this observation was merely based on an order dated 17.07.2021 that was passed on an application of the "Petitioner" regarding lack of territorial jurisdiction of the Guardian Court at Rawalpindi. Record is indicative of the fact that the "Respondent No.1" filed petition under Section 25 of the "Act" before the Guardian Court, Rawalpindi on 16.01.2021 mentioning the address of the Petitioner as "House No.440, Street No.15, Sector F, Phase 8, Bahria Town, Rawalpindi"; reply of the same was submitted by the "Petitioner" on 19.02.2022 taking specific objection under preliminary objection No.1 that the "minor" was residing at Lahore with the "Petitioner" since 15.10.2020 and that guardian court had no territorial jurisdiction at Rawalpindi. Before filing of the reply of main guardian petition, the "Petitioner" moved an application for returning of main guardian petition due lack of territorial jurisdiction on the grounds that the "minor" was residing with him at House No.107-B-II, Block-M, Gulberg-III, Lahore and that the "Petitioner" had already filed application under Section 7 of the "Act" for appointment of the guardian of the "minor" where the "Respondent No.1" was appearing and pursing the case. However, the Family Court, Rawalpindi opined the date of shifting of the "Petitioner" as 18.02.2021 on the basis of some rent agreement allegedly executed between the "Petitioner" and the house owner namely Tariq Nadeem but the said rent agreement was neither mentioned in the main guardian petition nor produced during the course of evidence rather the "Petitioner" during his cross-examination deposed and admitted it correct that the agreement deed of Bahria Town house Rawalpindi was in the name of his first wife namely Navira Arzo. Interestingly, when order and decree dated 20.07.2023 was assailed by the "Respondent No.1", she mentioned address of the "Petitioner" as "House No.440, 107/B/Block, M, Gulberg-III, Lahore" meaning thereby the "Petitioner" was residing at Lahore after the death of mother of the "minor" and if it was not so, then why the "Respondent No.1" did not mention the address that was previously mentioned in the main guardian petition.

5. The tenor of evidence produced by the "Respondent No.1" shows that custody of the "minor" is mainly claimed on the ground that the "Petitioner" contracted second marriage and on the touchstone of preferential right under Muslim Personal Law being maternal grandmother. Law is well settled that mere contracting second marriage of father or mother is not the sole criterion to determine the question of custody of the minor child. The Supreme Court of Pakistan in the case of Shabana Naz v. Muhammad Saleem (2014 SCMR 343), while dealing with this issue has very elaborately outlined the factors disqualifying the mother and father from the custody of minor in the following words :-

"8. It may be noted that in terms of section 7 of the Guardians and Wards Act, 1890 (the Act), the paramount consideration for the Court in making the order of appointment of guardian of minor is that it should be satisfied that it is for the welfare of minor. Although it is an established law that father is a natural guardian of his minor child/children but indeed the Court has to be satisfied while appointing the father as a guardian that the welfare of minor lies in the fact that he be appointed as a guardian and the custody of minor be delivered accordingly. There are many factors, which may not entitle the father to the custody of minor and some of the factors could be, where the father is habitually involved in crimes or is a drug or alcohol addict, maltreats his child/children, does not have a capacity or means to maintain and provide for the healthy bringing up of his child/children or where the father deliberately omits and fails in meeting his obligation to maintain his child/children. The factors noted above are not exhaustive and they may also not be considered as conclusive for that each case has to be decided on its own merit in keeping with the only and only paramount consideration of welfare of minor".

1. Regarding the second fundamental ground taken by the "Respondent No.1" on account of preferential right being maternal grandmother as per principle of Muslim personal law, suffice is to observe that entitlement as per Muslim personal law is not the sole ground for granting custody of a minor to either side rather the determining principle to rule the question of custody of a minor in favour of any side is the question of welfare of minor. The Supreme Court in Raja Muhammad Owais v. Mst. Nazia Jabeen and others (2022 SCMR 2123) has also laid down the same principle in the following manner:-

"These provisions and the principles of Mohammdan Law have been examined by this Court in several judgments where it has held that the conditions contained in Paras 352 and 354 of Mullah's Mohammadan Law are not absolute and are subject to the welfare of the child".

Similarly, the Supreme Court of Pakistan in Mehmood Akhtar v. District Judge Attock and 2 others (2004 SCMR 1839) categorically laid down that entitlement to have custody of a minor in accordance with the Muslim Personal Law is not the sole and ultimate criteria for granting custody rather it is qualified and dependent upon the determinative factor of welfare of the minor. The Supreme Court of Pakistan in Firdous Iqbal v. Shifaat Ali (2000 SCMR 838) also examined the question of entitlement of custody from the perspective of provisions of Muslim Personal Law as contained in Muhammdan Law by D.F.Mulla and held that notwithstanding the right for custody of minor under the personal law, this right is always subject to the welfare of the minor which is the paramount consideration for determining the question of custody of minor. Likewise, in Mst. Seema Choudhary v. Ahsan Ashraf Sheikh (PLD 2003 SC 877) the Supreme Court has held that notwithstanding the right of mother or father for the custody of male or female child under the personal law, the predominant consideration in determining the question of custody of minor is always the welfare of the minor

"There is no cavil to the proposition that notwithstanding the right of the mother or father for the custody of male or female child under the personal law, the predominant consideration in determining the question of custody of minor is always the welfare of the minor....."

1. It is well established from the above-referred judgments that the preferential right to claim custody of a minor in accordance with Paras 353 and 355 of Mohammdan Law by D.F. Mulla is not the sole criteria rather it is always dependent upon the primary consideration of welfare of child. From that standpoint, now the question of custody of the minor is to be determined. The "Petitioner" is real father of the "minor" who had the custody of the "minor" from the last almost four years after the death of her mother. On the other hand, the "Respondent No.1", who filed the petition for obtaining custody of the "minor" is an old lady of about 80 years of age, who does not enjoy good health and as such is in no physical condition to look after the person and affairs of the "minor" by herself. Even in her petition for custody before the learned Guardian Judge, she has categorically stated that her real unmarried daughter is living with her and she can look after the minor in a proper manner. Plainly, the "Respondent No.1" has not stated or claimed to have the capacity to look after the "minor" by herself rather she named her real unmarried daughter to be of proper help in this regard. It cannot be lost sight that the "Respondent No.1" even did not appear before the learned Guardian Court to depose in favour of her petition rather the said daughter appeared in her stead as an attorney and recorded evidence on behalf of the Respondent No.1. On 17.06.2023, an application for rejection of her power of attorney and for summoning the "Respondent No.1", being petitioner, in person was dismissed by the guardian court vide order dated 22.02.2023. It is pertinent to note that in the said application, it was well mentioned that the "Petitioner" being an old lady suffered minor cardiac attack and because of her health condition she appointed her daughter as her special attorney. This is clearly suggestive of the fact that the "Respondent No.1" is an old lady with poor health condition, which even debarred her from appearing before the Court to lead evidence in support of her own petition and even the appeal filed before the lower Appellate Court against the judgment of Guardian Court that was filed by the "Respondent No.1" through the same attorney, which clearly shed light that her physical state rendered her incapable for participating in the proceedings in personal capacity and further reflective of the fact that she was dependent upon her unmarried daughter for carrying out all affairs of her life. During cross-examination the PW-1, being attorney of the "Respondent No.1" admitted that the age of petitioner is 79 years and further admitted it as correct that she tendered application on her behalf that she cannot appear before the court due to health issues, This Court in Ghulam Mustafa v. Shamim Akhtar and 2 others (2017 YLR Note 45) set aside the order of the lower Appellate Court wherein the custody of minor daughter was given to the grandmother and custody of minor son was allowed to be remained with the father and held the father is entitled to have custody of his daughter against the maternal grandmother who was an old lady and was suffering from blood pressure. The relevant portion of the judgment reads as under:

Being father of minors, the petitioner/father is also a natural guardian and it is more natural for the children to share their joys and worries with their natural parents. Although, respondent No.1/maternal grandmother has the preferential right to the custody of minor/daughter under personal law but paramount consideration is the welfare of the minors. In a case reported as "Mst. Seema Chaudhry and another v. Ahsan Ashraf Sheikh and others" (PLD 2003 SC 877), the Honourable Apex Court has held that:--

"There is no cavil to the proposition that notwithstanding the right of the mother or father for the custody of male or female child under the personal law, the predominant consideration in determining the question of custody of minor is always the welfare of the minor....."

1. In the instant case, granting the custody of minor to the "Respondent No.1" will amount to handing the "minor" over to her maternal aunt for the purposes of everything because the maternal grandmother is already dependent on her and even not in a physical state of health to appear before the court for evidence or to file appeal before the learned lower appellate court. On the other hand, the "Petitioner" is real father and as such natural guardian of the minor, who is physically available to minor as well as financially capable to look after and raise her in an adequate manner and provide for a comfortable life. He is also not residing in foreign country for occupation, which could have left the minor to the mercy of stepmother but he is all available for the "minor". In contrast to ailing and old maternal grandmother, who is dependent upon her daughter for everything, the "Petitioner" being real father of the "minor" can certainly look after her in a more proper way. Concerning the approaching age of puberty and necessity of a female elder to guide the minor through that phase of physical and emotional state of life, the presence of stepmother is available in the house of "Petitioner" against whom only general allegations have been levelled by the "Respondent No.1" but no specific incident or accusation has been alleged to suggest a well discernable inference about her being inimical against the "minor". Certainly the stepmother cannot be equivalent to real mother but when destiny has taken the "minor" to a cross-path of having real father on one side without having any children from the second wife and an 80 years old maternal grandmother with physically compromised state of health on the other, a real and willing parent, not declared unfit in any evident manner, seems more suitable for the "minor" to lead her through the path of her life then the maternal grandmother who is dependent on others to beat the path of her own life. It is not the contesting sides whose suitability is a question for determination before the Court but it is always the spectrum of welfare and best interest of the minor which guides the court to decide between the aspiring parties. Similar view has been expressed by the Supreme Court in the latest judgment Shaista Habib v. Muhammad Arif Habib and others (PLD 2024 SC 629) wherein the court ruled as under:

"The overarching principle in cases involving the question of custody and visitation rights of the parents is, therefore, determination of the welfare of the child, i.e. to ascertain a course that would serve the best interest of the child".

1. It is evident from the record that both the parties have levelled severe allegations against each other that is only because of getting share of properties/amount of the mother of the "minor". The "Respondent No.1" in order to prove the conduct of the "Petitioner" relied on WhatsApp screen shots (Exh.P.4) of physical torture to mother of the "minor" who ultimately died on 04.09.2020 and murder case was also registered against the Petitioner in which he was acquitted by the competent court of law and the same has been admitted by the attorney of the "Respondent No.1" during cross-examination. Her depositions read as:

"We filed a petition for custody of the minor against the Irfan Arshad/respondent; we lodged FIR against the respondent on 14.12.2021".

Further deposed that

"The four persons named in the FIR who were present in the incident were Irfan Arshad husband of the victim, Imran Arshad brother of Irfan Arshad, Huma Imran sister in law of Irfan and Ahmad Imran nephew of respondent Irfan Arshad. It is correct that all the persons were named in the FIR had been acquitted".

1. Record is evident of the fact that the mother of the "minor" was died on 04.09.2020, custody petition was filed on 16.01.2021 and interestingly FIR was lodged on 14.12.2021 in which the "Petitioner" and his other family members have already been acquitted by competent court of law. Hence, such kind of allegation cannot be used against the "Petitioner" as of a bad character to get the custody of the "minor". This Court in Rizwan Ali Sayal v. Federation of Pakistan and others (PLD 2024 Lahore 54) has elaborated the principal of honorable acquittal and hold that

"As far as argument of an honorable acquittal is concerned, the Court is of the view that all acquittals including acquittal on compromise are honorable for the reason that the prosecution has not succeeded to prove their cases against the accused on the strength of evidence of unimpeachable character. There can be no acquittals, which may be said to be dishonorable and the law has not drawn any distinction between any types of acquittals. Reliance is placed on "Dr. Muhammad Islam v. Government of Nwfp, and others" (1998 SCMR 1993). The Respondent No.5 was acquitted by the Judicial Magistrate vide order dated 14.12.2006 and this order of acquittal was upheld by the Additional Sessions Judge, Sargodha vide order dated 08.03.2008. It shall, therefore, be presumed that the allegations levelled against him are baseless as, he has not been declared guilty. In presence of above meaning of "acquittal" the appellant is held to have committed no offence because the competent criminal courts have cleared him from an accusation or charge of crime. Moreover, once a person was acquitted by trial court, said person would stand shorn of stigma of any allegation and he would have to be deemed thereafter as innocent and having not committed any such crime. If acquittal of accused is not assailed before higher forum, such acquittal earned by accused from trial court, on whatsoever basis, would attain finality and pandora box of allegations could not be re-opened or used against him. In short, acquittal is an acquittal simpliciter and, must entail upon all consequences of pure acquittal. Reliance is placed on "Mumtaz Ali Shah v. Chairman, Pakistan Telecommunication Company Ltd., h.q., Islamabad and 6 others" (PLD 2002 SC 1060). Additionally, order of acquittal of accused shall erase, efface, obliterate and wash away his alleged or already adjudged guilt in the matter apart from leading to setting aside of his sentence or punishment, if any. Reliance is placed on "Suo Motu Case No. 03 of 2017" (PLD 2018 SC 703)".

1. So far as the observation of the Additional District Judge, Rawalpindi to the extent that the "Petitioner" operated bank account of mother of the "minor" and withdrew and transferred money without getting the succession certificate is concerned, learned counsel for the "Petitioner" stated that the "Petitioner" is a Chemical Engineer by profession who worked in Saudi Arabia from where he used to send money directly in the bank account of the mother of the "minor" from where she purchased the properties in her name and in this regard the "Petitioner" also filed suit for benami transaction which is still pending. Whereas the counsel for the "Respondent No.1" rebutted this argument and stated that the "Petitioner" filed suit for getting declaration of legal heirs just to grab the assets of the mother of the "minor". Be that as it may, the litigation between the parties is still pending adjudication and at this stage, this Court will refrain from passing any observation, which may otherwise prejudice the case of either side. Considering the facts and circumstances and by perusing the available record, the Court observes that absolutely nothing has been alleged against "Petitioner" which could disqualify or disentitle him from custody of the "minor". It is admitted fact that "Petitioner" is Chemical Engineer and financially sound and can better look after and educate his daughter and thus does not suffer from any disqualification envisaged by law. Furthermore, the "Petitioner" right from inception is vigorously pursuing the remedies to obtain the custody of his daughter. Whereas the "Respondent No.1" (maternal grandmother) is aged about 80 years and in bad health having no source of income. The factum of ailment of the "Respondent No.1" is admitted by Humaira Iram, special attorney during her cross-examination by stating that "she has problems of old age and other health issues". The said "Respondent No.1" is fully dependent on her daughters, who are working ladies and most of the time they remained at their job places and one of them converted from Islam to Bahai Religion. Moreover, the "minor" is studying at Lahore after shifting from Rawalpindi to Lahore on 15.10.2020 and in this situation, she is getting proper study at NGS Education System, Askari II.

2. So far as order dated 02.07.2024 passed in W.P.No.2050 of 2024 is concerned whereby the Executing Court, Rawalpindi handed over the custody to the "Respondent No.1" till the decision of instant petition. It is noted that when the "Petitioner" challenged consolidated judgment and decree dated 30.01.2024 before this Court, the Court vide order dated 13.02.2024 passed status quo order qua custody of the "minor". Instant petition was dismissed for non-prosecution on 13.06.2024; restoration of which was filed through C.M.No.1249 of 2024 wherein the Court on 27.06.2024 issued notice to the "Respondent No.1". The Court vide order dated 02.07.2024 again stayed the proceedings before the Executing Court. The "Respondent No.1" filed execution petition on 06.02.2024 for execution of consolidated judgment and decree dated 30.01.2024 wherein the Executing Court appointed bailiff for production of the "minor" on 14.02.2024. On the said date, warrant under Section 100 of the "Cr.P.C" were issued for 04.03.2024 and thereafter execution petition remained pending till 06.06.2024 for awaiting the order of this Court. On 06.06.2024, the Executing Court was on leave and it was fixed for 11.07.2024. In the meanwhile, on 25.06.2024, the "Respondent No.1" filed application for early hearing of execution petition which was taken up on the same day and the Executing Court, Rawalpindi observed that "the respondent assailed the judgment vide Writ Petition No.452 of 2024 at Hon'ble Lahore High Court but the same was dismissed due to non-prosecution vide order dated 13.06.2024. The execution petition has already been adjourned for 11.07.2024 in wait of order of Hon'ble Court. The custody of the minor has been shifted to the petitioner and there is apprehension of removal of minor from the jurisdiction of this court, it is therefore warrants under section 100, Cr.P.C are issued to recover the minor and produce her in the court even prior to the fixed date in execution petition". Besides, special attorney of the "Respondent No.1" also filed habeas petition under Section 491 of the "Cr.P.C" for recovery of the "minor" before the Additional District Judge, Lahore who vide order dated 29.06.2024 allowed above said petition and handed over the custody of the "minor" to special attorney of the "Respondent No.1" with direction to produce the "minor" before the Executing Court at Rawalpindi on 02.07.2024. In the said order, the Executing Court observed as under:

"On 01.07.2024 the petitioner produced the minor before this court under apprehension of threatening of dire consequences from the judgment debtor/respondent; the petitioner Zainab Noor was allowed to carry the custody. Today, minor has been produced on the request of counsel for the respondent who produces the order of Hon'ble Lahore High Court that the proceedings before Executing Court shall remain stayed".

Underlining for emphasis

1. The above said order clearly indicates that order dated 02.07.2024 of this Court was produced before the Executing Court, Rawalpindi, which instead of complying with the said order, proceeded to continue execution proceedings, which is highly objectionable, hence order dated 02.07.2024 is set aside being not sustainable in the eyes of law.

2. On the comparative analysis of both the findings, the Court feel no hesitation to observe that the Additional District Judge, while exercising his appellate jurisdiction has grossly misread the evidence and wrongly interfered with the well-reasoned findings of the learned Family Judge. The constitutional jurisdiction vested in terms of Article 199 of the "Constitution" casts a duty upon the Court to curb the illegality or gross misreading committed by any of the courts below, while determining the rights of the parties. Reliance is placed on Hammad Ali Khan and others v. Mst. Sadia Akbar and others (2024 MLD 1445) wherein this Court held:

2025 M L D 428

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf, J

Sultan Khan and another---Petitioners

Versus

Muhammad Nawaz (deceased) through his Legal Heirs and others---Respondents

Civil Revision No. 689-D of 2012, decided on 2nd December, 2024.

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

----Ss. 8 & 42---Limitation Act (IX of 1908), S. 28 & First Sched., Art. 144---Suit for possession---Maintainability---Judgments at variance---Adverse possession---Trespasser---Revenue Officer in demarcation proceedings found the petitioners as encroachers upon the property in dispute---Suit for possession instituted by the respondent/plaintiff was dismissed, but the Appellate Court allowed the appeal of the respondent/plaintiff and decreed the suit in his favour---Contention of the petitioners was that suit for possession was not maintainable being time barred and having been filed without seeking declaration of title---Validity---Respondent purchased property from Khasra No.746, however, possession was handed over to him from Khasra Nos.745 and 746 as the predecessor-in-interest of the petitioners was owner in both the Khasras, thus, petitioners had not thrown any serious challenge to the title of the respondent and as such objection of the petitioners qua maintainability of suit for possession was without any force---Person is only obliged to seek declaration when somebody is interested to deny his legal right or character as ordained in S. 42 of the Specific Relief Act, 1877---Petitioners were claiming protection of their possession on the plea of "adverse possession", thus, when they had no title to the suit property, they could only be termed as "trespassers"---With the afflux of time illegal possession upon the property of the other, irrespective of howsoever long it is, would not extinguish the ownership of the actual owner and validate the possession of trespasser---Knocking out the respondent on account of limitation would amount to giving premium to the petitioners under the obsolete provisions of law i.e. S.28 and Art. 144 of the Limitation Act, 1908, which had already been declared as deviant to the Quranic Injunctions---Civil revision was dismissed, in circumstances.

Muhammad Iqbal v. Mati ur Rehman and others 2022 SCMR 859; Wazir Khan and others v. Qutab Din and others PLD 2009 SC 95 and Sultan Mahmood Shah through L.Rs. and others v. Muhammad Din and 2 others 2005 SCMR 1872 distinguished.

Maqbool Ahmed v. The State 1991 SCMR 2063; Muhammad Zaman v. Nazir Ahmed and 2 others 2003 CLC 1628 and Malik Muhammad Hussain v. Saadullah Khan 2014 CLC 311 rel.

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

----S. 115---Judgments of lower courts at variance---Inconsistency---Preference---In the matter of giving preference to the judgments of lower courts while analyzing the same in exercise of revisional jurisdiction, preference and regard is always given to the findings of the appellate court, unless they suffer from any legal infirmity or material irregularity.

Muhammad Nawaz through L.Rs v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1 and Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398 rel.

Muhammad Amir Butt for Petitioners.

Respondents, ex-parte.

Date of hearing: 22nd October, 2024.

Judgment

Mirza Viqas Rauf, J.--- This petition under Section 115 of the Code of Civil Procedure (V of 1908) stems from the judgment and decree dated 15th May, 2012 handed down by learned Additional District Judge, Chakwal, whereby he while allowing the appeal preferred by Muhammad Nawaz, predecessor-in-interest of respondents Nos.1A to 1D (hereinafter referred to as "deceased respondent") set aside the judgment and decree dated 2nd December, 2010 passed by the learned Civil Judge Class-I, Chakwal by virtue of which suit for possession instituted by deceased respondent was dismissed.

1. Facts forming background of this petition are that deceased respondent instituted a suit for possession in respect of land measuring 8 Marla bearing Khasra No.746 Khatooni Nos.526 Khewat No.168 situated in village Hastal Tehsil and District Chakwal, averring therein that he is owner in possession of the suit land but about one and an half year ago the petitioners and respondents Nos.2 to 5 forcibly took over the possession whereafter he moved an application to the revenue officer for conducting of demarcation proceedings, wherein it was found that the petitioners and respondents No.2 to 5 encroached upon his property. It was claimed in the suit that though deceased respondent requested them to hand over the possession of the suit land but they refused. Suit was resisted by the petitioners by asserting that their predecessor-in-interest namely Ghulam Qadir purchased land measuring 2 Kanal 10 Marla forming part of Khasra No.745 from Feroz Din through registered sale deed in the year 1977 but the possession was handed over from Khasra Nos.746 as well as 745. Suit was resisted on various grounds including limitation. From the divergent pleadings of the parties multiple issues were framed by the learned Civil Judge and on culmination of trial, suit was dismissed by way of judgment and decree dated 2nd December, 2010. Feeling dissatisfied an appeal was preferred by the deceased respondent before the learned Additional District Judge, Chakwal. During the pendency of appeal, the deceased respondent passed away and respondent No.1A to respondents No.1D were impleaded as his legal representatives. The appeal was ultimately allowed through judgment and decree dated 15th May, 2012 and resultantly suit was decreed to the effect that respondents Nos.1A to 1D are entitled to get the vacant possession of 5 Marla of land from the petitioners and 3 Marla of land from respondents Nos.2 to 5 from Khasra No.746, hence this petition under Section 115 of the Code of Civil Procedure (V of 1908).

2. This petition was admitted for regular hearing by way of order dated 18th September, 2012 and notice was issued to the respondents but they failed to appear and were proceeded against ex-parte as a result of which it was directed to be placed for ex-parte hearing.

3. Learned counsel for the petitioners contended that suit instituted by the deceased respondent was not maintainable and as such it was rightly dismissed by the trial court initially. It is contended that the appellate court without adverting to the material pieces of evidence drawn a contra view, which renders the impugned judgment nullity in the eyes of law. Learned counsel emphatically argued that suit was clearly barred by time but the question of limitation has not been attended properly by the appellate court, which by itself is sufficient to set at naught the impugned judgment. It is argued by learned counsel that without seeking declaration of title suit for possession was not maintainable. Placed reliance on Muhammad Iqbal v. Mati ur Rehman and others (2022 SCMR 859), Wazir Khan and others v. Qutab Din and others (PLD 2009 SC 95) and Sultan Mahmood Shah through L.Rs. and others v. Muhammad Din and 2 others (2005 SCMR 1872).

4. I have heard learned counsel for the petitioners at considerable length and also perused the record.

5. Suit was in terms of Section 8 of the Specific Relief Act, 1877 wherein it is claimed by the deceased respondent that he is owner in possession of the suit land and the petitioners have dispossessed him forcibly about one and half year ago qua which he also got demarcated the suit land wherein it is found that the petitioners have encroached upon the same. Contrary to this, it is the stance of the petitioners that their predecessor-in-interest namely Ghulam Qadir purchased the property measuring 2 Kanal 10 Marla from Feroz-ud-Din son of Fazal Din through registered sale deed in the year 1977 whereafter they raised construction in the shape of residential houses. It is also asserted that at the time of purchase though it was mentioned that the property forms part of Khasra No.745 but at site possession was delivered from Khasra Nos.745 and 746 as the vendor (deceased respondent) was owner in both the Khasra numbers.

6. From the respective pleadings of the parties it is manifestly clear that the parties are not in dispute to the effect that deceased respondent purchased the property forming part of Khasra No.746 and he is a lawful owner of the same. It is also not in dispute that the predecessor-in-interest of the petitioners have purchased the property from Khasra No.745 but as per their stance after the execution of sale deed the possession was handed over to the vendee from Khasra No.745 as well as Khasra No.746 as the vendor was owner in both the Khasras. The petitioners are thus not throwing any serious challenge to the title of the deceased respondent. In this backdrop objection of learned counsel for the petitioners with regard to maintainability of suit for possession is without any due force. Needless to observe that a person is only obliged to seek declaration when somebody is interested to deny his legal right or character as ordained in Section 42 of the Specific Relief Act, 1877, which is not the case here.

7. Suit is mainly resisted by the petitioners on account of limitation regarding which issue No.1 was framed. It evinces from the record that suit was initially dismissed and issue of limitation was also decided against the deceased respondent. In appeal, learned Additional District Judge while dealing with the question of limitation held the suit within time on the ground that the deceased respondent purchased land from the legal heirs of Feroz Din in the year 2001 and possession was also delivered to him in pursuance to which mutation was also sanctioned as is evident from Exhibit-P5 but the encroachment of the petitioners came to his notice and knowledge in the year 2002, after the demarcation proceedings, whereafter he instituted the suit which is well within time. Above all it is noticed that petitioners admittedly do not possess any title regarding property situated in Khasra No.746. In other words, the petitioners are occupying the property owned by deceased respondent unauthorizedly. Needless to observe that the petitioners' act of occupying the suit property illegally and unlawfully would amount to give recurring cause to the deceased respondent.

8. As already mentioned hereinabove that it is the stance of the petitioners that their predecessor-in-interest namely Ghulam Qadir purchased the property through registered sale deed in the year 1997 from Khasra No.745 but as the vendor was also owner in Khasra No.746, so possession was handed over to the vendee in both the Khasras and since then they are peacefully enjoying it. Needless to mention that when once it is established that the petitioners are not the owners of the suit property which is forming part of Khasra No.746, so they can only be termed as trespassers or in adverse possession. The term "adverse possession" is defined in various law dictionaries as under:-

Black's Law Dictionary Tenth Edition

adverse possession. (18c) 1. The enjoyment of real property with a claim of right when that enjoyment is opposed to another person's claim and is continuous, exclusive, hostile, open, and notorious. In Louisiana, it is the detention or enjoyment of a corporeal thing with the intent to hold it as one's own. La. Civ. Code art. 3421. - Also termed adverse dominion. Cf. PRESCRIPTION (5).

Webster's New World Law Dictionary

adverse possession n. A method of acquiring title to real estate by actually, continuously, and openly occupying the property for an uninterrupted amount of time to the exclusion of all others and in defiance of the real owner's rights. The required period of occupancy, as well as other possible conditions, are set by statute.

KJ Aiyar Judicial Dictionary 16th Edition

Adverse possession. Possession of (usually of land) which is inconsistent with the right of a person who claims to be the true owner. Trespass does not constitute adverse possession. There must be real possession accompanied by intent to possess. It must be 'adverse' to the owner and must not be permissive.

Whereas "trespass" is defined as under:-

Black's Law Dictionary Tenth Edition

trespass (tres-pes or tres-pas), n. (13c) 1. An unlawful act committed against the person or property of another; esp., wrongful entry on another's real property. Cf. unlawful entry under ENTRY (1). 2. At common law, a lawsuit for injuries resulting from an unlawful act of this kind. The lawsuit was instituted by a writ of trespass. 3. Archaic. MISDEMEANOR. - trespass, vb. - trespassory (tres-pe-sor-ee), adj.

Webster's New World Law Dictionary

trespass 1 n. An illegal act committed against another's person or property; especially entering upon another's land without the owner's permission. 2 n. In common law, a legal suit for injuries resulting from an instance of the first definition. 3 v. To enter upon property without permission, either actual or constructive.

trespass on the case. A common-law precursor to today's negligence, nuisance, and business torts, it was a suit to remedy injury to person or property not resulting directly from the defendant's conduct but a later consequence of same.

KJ Aiyar Judicial Dictionary Sixteenth Edition

Trespass. The act of breaking into computers or networks either without authorization or in excess of one's authorization. A forcible entry on the land of another with strong hand and against the will of the owner constitutes a trespass.

After having an overview of the definition of terms "Adverse Possession" and "trespass" given in various law dictionaries when claim of petitioners is examined, there remains no cavil that they are not claiming protection of their possession on the plea of "Adverse Possession". In this way when the petitioners have no title to the suit property they can only be termed as "trespassers".

1. Before moving further it would not be out of context to mention here that initially adverse possession was duly recognized by law and it was protected under Section 28 and Article 144 of the Limitation Act, 1908 but both these provisions were declared repugnant as against the injunctions of Islam in the case of (1991 SCMR 2063). The relevant extract from the same is reproduced below :-

2. In the above backdrop it would not be out of context to observe that with the afflux of time illegal possession upon the property of the other, irrespective of howsoever it is long, would not extinguish the ownership of the actual owner and validate the possession of trespasser. Reference to this effect can be made to the case of Muhammad Zaman v. Nazir Ahmed and 2 others (2003 CLC 1628) wherein this Court held as under :-

"4. Now according to the reasoning of the learned lower Courts the petitioner has not proved his possession over the said property nor has he proved his dispossession by the respondents in the year 1985. Now whereas the learned trial Court has found the suit to be barred by time without reference to any provision of Limitation Act. The learned Appellate Court has referred to Articles 142 and 144 of the Schedule to the Limitation Act, 1908. Under Article 142 the prescribed period of 12 years for a suit for possession is to commence from the date of dispossession or discontinuation of possession. Under Article 144 the prescribed period of 12 years is to commence from a point of time when the possession of the defendant in the suit becomes adverse to the plaintiff. Now going by the findings of the learned lower Courts that the petitioner never took possession of the land under the said decree, Article 142 would not apply. As there is no question of dispossession or discontinuation of possession while a plaintiff is in possession. This leaves Article 144. Under this provision the starting point of limitation is when the possession of the defendant becomes adverse to the plaintiff. The finding of the learned lower Courts is that possession of the respondent is not adverse. This being so, they have acted without jurisdiction in holding the suit to be barred by time.

1. Now according to the said case of Mahboob Khan cited by the learned counsel for the respondents it has been held that the limitation for a first application for execution of a decree is three years as prescribed in Article 181 of the Limitation Act, 1908. To my mind the said proposition is not involved in this case where we are dealing with the limitation for suit for possession. However, the judgment in the case of Alam Din alias Alam Sher and 3 others cited by learned counsel does deal with a suit for possession. Now the learned counsel particularly relies on the following observations of the Honourable Court in para. 18 of the judgment at page 10 of the report:--

"We think that it is no practically a settled law that if a person with title fails to sue for possession or execute the decree for possession or declaration which he has in his favour for twelve years, the person holding such a property adversely to the true owner for more than twelve years, after the decree or dispossession of the owner, becomes full owner in extinguishing the title of the true owner. (underlining is mine).

Now it will be seen that their Lordships also insisted that the possession has to be adverse to the true owner in order to extinguish his title by prescription. In the present case, as held by me above, it is an interpartes finding that possession of the respondent has never been adverse.

1. Thus the possession of the respondents not being adverse, whatever the length of said possession may be, it will not result in extinguishment of the title of the petitioner. Needless to state that so long as the title vests in the petitioner he is entitled to get the possession of the land on the basis of the same."

2. In somewhat similar facts and circumstances Peshawar High Court in the case of Malik Muhammad Hussain v. Saadullah Khan (2014 CLC 311) held as under :-

"10. The plea of the petitioner that being trespasser he has the protection of law is not tenable as law does not come to the rescue of a person who on the one hand, violates a law and seeks refuge behind an other for the protection of his unlawful interest. Reliance is placed on 1968 SCMR 1286 whereby leave was refused by the Supreme Court of Pakistan from a judgment of High Court in which the High Court had declined to interfere with the orders of settlement authorities on the view that a trespasser was neither entitled to the transfer of a house under the Displaced Persons (Compensation and Rehabilitation) Act nor competent to move the High Court in the exercise of its constitutional jurisdiction. (Underlining supplied).

11. Similar view was expressed in another judgment by the Supreme Court of Pakistan reported in PLD 1982 Supreme Court page 308 wherein their Lordships have that "the appellant Anjuman, on other hand had no 'legitimate' right whatsoever on the land in dispute because its status, on its own admission was only that of a trespasser. It entered into the land in question without the permission of the relevant authorities and started using it for own purpose without any authorization. (Underlining supplied)"

Even otherwise knocking out the deceased respondent on account of limitation would amount to give premium to the petitioners under the obsolete provisions of law i.e. Sections 28 and 144 of the Limitation Act, 1908, which have already been declared as deviant to the Quranic injunctions.

1. So far judgment in the case of Muhammad Iqbal's relied upon by learned counsel for the petitioners is concerned, it is observed that in the said case both the parties were litigating and canvassing their respective titles to the suit property which is not so in the present case thus the principles laid down therein are not applicable to the case at hand. Next comes the judgment in the case of Wazir Khan's supra, perusal whereof reveals that said judgment is founded on entirely different facts and circumstances. Parties to the said case were raising their respective claims with regard to the suit land and challenging the vires of the mutation being outcome of fraud and misrepresentation which is not the case here. With all reverence to the principles laid down therein qua which no other opinion can be formed, it is observed that as the facts and circumstances of the present case are distinguishable, so reliance on the said judgment by learned counsel for the petitioners would be of no avail. So far judgment in the case of Sultan Mahmood Shah supra is concerned, it evinces therefrom that both the parties were claiming title qua the suit property whereas in the present case, the petitioners are not disputing the title of the deceased respondent, which is an apparent distinctive feature.

2025 M L D 523

[Lahore (Rawalpindi Bench)]

Before Shakil Ahmad, J

Mst. Shamim Akhtar---Petitioner

Versus

Additional District Judge Rawalpindi and 2 others---Respondents

Writ Petition No. 2889 of 2020, heard on 23rd October, 2024.

Family Courts Act (XXXV of 1964)---

----S.5, Sched.---Suit for recovery of maintenance allowance, stipulated amount for pronouncing divorce and 04 tolas gold---Nikahnama, Clause 18---Scope---Prompt and deferred dower---Meaning---Parties had mutually agreed that in case of divorce or contracting second marriage by the husband/respondent, respondent would provide the stipulated amount as specified in Cl. 18 of Nikahnama---Contention of the respondent was that the condition imposed in the Nikahnama was contrary to the law and Islamic injunctions---Validity---Where no specific or definite period is settled for the payment of deferred dower, wife would become entitled to dower at the event of dissolution of marriage or on the death of any of the spouses---If any sum or property is agreed to be paid or given to the wife on the happening of some specified event, the same would become payable on the occurrence of that specified event as a deferred dower---There was a specific stipulation in the Nikahnama that in case of divorcing the petitioner or contracting second marriage by the respondent, he would pay an amount of Rs 300,000/- to the petitioner---Admittedly, respondent had divorced the petitioner, therefore, petitioner was entitled to recover the amount as stipulated in Nikahnama by construing the same as deferred dower---Respondent had failed to substantiate his stance as taken in his written statement qua pronouncing of divorce upon petitioner on her insistence---Family Court rightly resolved the issue qua entitlement of respondent for receiving stipulated amount, whereas, Appellate Court fell in obvious error disentitling petitioner from recovering that amount---Petitioner failed to substantiate her claim that the respondent snatched gold ornaments from her as petitioner in her cross-examination acknowledged that on the day of alleged snatching, respondent was abroad---Constitutional petitions were allowed and judgment and decree passed by Appellate Court was set aside to the extent of entitling the petitioner to recover 04 tolas gold ornaments and declined her claim to recover the stipulated amount from the respondent and to that extent judgment and decree of Trial Court was restored.

Ghulam Shabbir v. Mst. Abbas Bibi and others 2022 CLC 963; Dr. Sabira Sultana v. Maqsood Sulari, Additional District and Sessions Judge, Rawalpindi and 2 others 2000 CLC 1384 and Mst. Tayyeba Ambareen and another v. Shafqat Ali Kiyani and another 2023 SCMR 426 rel.

Ch. Muhammad Mobeen Shazaib for Petitioner.

Asif Raza Bhatti for Respondent.

Date of hearing: 23rd October, 2024.

Judgment

Shakil Ahmad, J.---Titled petition is being decided along with Writ Petition No. 2478 of 2020 through this consolidated judgment as judgments and decrees dated 14.09.2020 and 12.10.2020 passed by learned Judge Family Court and Additional District Judge Rawalpindi, respectively, are under challenge in these petitions by the same parties.

1. For the facility of ready reference, hereinafter Mst. Shamim Akhtar will be referred to as 'petitioner' and Farooq Azam will be referred to as 'respondent.'

2. Facts of the case, in brief, giving rise to the filing of these petitions are that petitioner instituted a suit against the respondent seeking decree for recovery of maintenance allowance, Rs. 300,000/- as stipulated in the Nikah nama and four tolas gold ornaments. The respondent contested the suit by filing written statement. After framing of issues and recording of evidence of the parties, the Judge Family Court, Rawalpindi proceeded to decree the suit in the following terms:-

"1. The plaintiff is entitled to get Rs. 20,000/- per month w.e.f. the date of desertion i.e., 16.12.2017 till expiry of her iddat period i.e., 15.05.2018.

1. The plaintiff is entitled to recover Rs. 03 lac from the defendant as per column No. 18 of Nikahnama.

2. The claim of plaintiff for recovery of gold ornaments is dismissed."

Both the parties assailed the judgment and decree of the trial court by filing separate appeals and Additional District Judge Rawalpindi, vide judgment and decree dated 12.10.2020 decided both the appeals as under:-

"The sequel of above discussion is that, appeal filed by Mst. Shamim Akhtar is partly allowed in the manner that she is held entitled to recover the gold ornaments weighing 4 tolas, whereas, the rival appeal of Farooq Azam is partly allowed in terms that Mst. Shamim Akhtar is allowed to recover Rs. 60,000/- for the period of iddat only and further she is not entitled to recover Rs. 300,000/- from the respondent (defendant) as dower. …"

Being dissatisfied, both the parties have filed instant petitions.

1. Heard learned counsel for the parties and record so annexed with the petitions perused.

2. Learned counsel for petitioner and the respondent are only objecting to the decrees of courts below qua dower and gold ornaments, respectively.

3. As regards petitioner's claim qua recovery of Rs. 3,00,000/- as stipulated in the Nikah nama, it may be observed that petitioner averred in the plaint that she got married to the respondent in lieu of dower of Rs. 10,0000/-. She further claimed that it was also agreed that an amount of Rs. 300,000/- will be given to the petitioner in case respondent pronounces divorce on petitioner or he contracts second marriage and that respondent has contracted marriage with one Sania Nazar on 17.02.2018 and also divorced the petitioner, therefore, she is entitled to recover Rs. 300,000/-. The respondent, in his written statement did not deny specifically qua fixation of Rs. 300,000/-, however, asserted that all the dower has been paid and he divorced petitioner upon her asking. Before dilating upon the proposition, it seems apt to reproduce hereunder the stipulation as hinted against columns Nos. 18 to 22 of Nikah Nama:-

From the bare perusal of above, it transpires that both the parties agreed upon the stipulation qua payment of Rs. 300,000/- in the events of pronouncing divorce upon petitioner and contracting second marriage by the respondent. Narration given in Nikkah Nama qua the amount can legitimately be counted as deferred dower that was to become payable on happening of any of the events so mentioned therein. In the instant case since respondent has contracted second marriage and also divorced the petitioner, therefore, the petitioner was entitled to the decree for the dower to the tune of Rs. 300,000/-. Needless to observe that the stipulation agreed upon between the parties qua payment of certain amount by respondent to the petitioner on the event of divorce or contracting second marriage, in no way curtails the right of husband to pronounce divorce. Any stipulation or condition agreed between the parties mutually and with their free consent cannot be considered as an absolute bar to either pronounce divorce. In case "Ghulam Shabbir v. Mst. Abbas Bibi and others" (2022 CLC 963) the moot point, whether any condition incorporated in the Nikah Nama qua payment of compensation to wife in case of divorce was contrary to the law and Islamic injunctions or not, was taken up and resolved in the following terms:

"3. …………. The vires and constitutionality of the Muslim Family Law, Ordinance, 1961 and schedule thereto, which included to Nikah Nama, were variously subjected to challenge successfully. Clause 19 forms part of Nikah Nama - Form-II, added in terms of Rules 8, 10, 11 and 12 of the W.P. Rules under the Muslims Family Law Ordinance, 1961.

4. Clause 19 of Nikah Nama in this case is grossly misconstrued. The financial benefits agreed mutually are in the nature of reasonable financial support for setting her free. There is no cavil that terms of Nikah Nama constitutes a civil contract between the parties, both of which are at liberty to agree to the terms of arrangement. Clause-19, as available in Nikah Nama, is not in the nature of absolute bar qua right to divorce. It is not disputed that petitioner had divorced the wife - which manifest that no bar to divorce was imposed.

1. As far as contractual obligation in column 19 is concerned, it was agreed and factum of Nikah Nama is not disputed. The amount agreed in terms of clause-19 of Nikah Nama is spousal support- having all the attributes of alimony - wherein reasonable benefits were offered to enable ex-wife to have dignified and comfortable life. There is no restriction that husband cannot agree to arrange for maintenance or agree to extend fiscal advantage to the wife, even after the divorce. This nature of the benefit / advantage, which is not in any manner is restricting right of divorce, is in fact an act of bestowing benefit or gift upon wife to support her, hence, cannot be termed as illegal or contrary to the spirit of ISLAM and teachings of Quran."

2. It may further be observed that there exists no categorization of the dower either in the Holy Quran or Sunnah. Any amount/property agreed to be paid by the husband to wife on the happening of some future event, by all intents and purposes be construed as a deferred dower to be paid by the husband on the happening of such event. While discussing the scope and nature of prompt and deferred dower, Syed Ameer Ali, a prominent jurist of his age, in his celebrated compilation Mohammedan Law (Volume II) that was published in 1965 by All Pakistan Legal Decisions, Lahore while defining prompt and the deferred observed as under:-

"Prompt and deferred dower.

As there is nothing in the Koran or in the traditions tending to show that the integral payment of the dower prior to consummation is obligatory in law, the later jurisconsults have held that a portion of the mahr should be considered payable at once or on demand, and the remainder on the dissolution of the contract, whether by divorce or the death of either of the parties. The portion which is payable immediately is called the mahr-i-mu'ajjal, "promot" or "exigible"; and a wife can refuse to enter the conjugal domicile until the payment of the prompt portion of the dower. The other portion is called mahr-i-muwajjal "deferred dower" which does not become due until the dissolution of the contract. It is customary in India to fix half the dower as prompt and the remaining moiety as deferred or "postponed:" but the parties are entitled to make any other stipulation they choose. For example, they may allow the whole amount to remain unpaid until the death of either of the husband or the wife. Generally speaking, among the Musulmans of India, the deferred dower is a penal sum, which is allowed to remain unpaid with the object of compelling the husband to fulfill the terms of the marriage-contract in their entirety."

(Underlining is to supply emphasis).

So, any penal sum that has to be paid by the husband on the event of some future happenings as agreed by him although penal in nature yet same may be considered as deferred dower in view of exposition given by late Syed Ameer Ali. Faiz Badruddin Tyabji in paragraph No. 98 of his famous work 'Muhammadan Law', defined the terms prompt and deferred dower in the following words:

"Mahr may be (a) either prompt, or exigible (in Arabic mu'ajjal) i.e., payable immediately on marriage if demanded by the wife or (b) deferred (in Arabic muwajjal) i.e., payable on the dissolution of marriage, or the happening of some specified event."

(emphasis supplied)

In view of above, it can very conveniently be resolved that where no specific or definite period is settled for the payment of deferred dower, wife would become entitled to dower at the event of dissolution of marriage or on the death of any of the spouses. If any sum or property is agreed to be paid or given to the wife on the happening of some specified event, the same would become payable on the occurrence of that specified event as a deferred dower. In the instant case, there was a specific stipulation in the Nikah Nama that in case of divorcing the petitioner or contracting second marriage by the respondent, the respondent would pay an amount to the tune of Rs. 300,000/- to the petitioner. Undeniably, respondent has divorced the petitioner, therefore, petitioner was entitled to recover an amount to the tune of Rs. 300,000/- as stipulated in Nikah Nama by construing the same as a deferred dower. Respondent simply failed to substantiated his stance as taken in his written statement qua pronouncing of divorce upon petitioner on her insistence. Learned Judge Family Court rightly resolved the issue qua entitlement of respondent for receiving Rs. 300,000/- whereas learned Appellate Court fell in obvious error disentitling petitioner to recover Rs. 300,000/-.

2025 M L D 537

[Lahore (Rawalpindi Bench)]

Before Sadaqat Ali Khan and Mirza Viqas Rauf, JJ

Khawaja Muhammad tayyab and another---Appellants

Versus

The State---Respondent

Criminal Appeal No. 330 and Murder Reference No. 29 of 2023, heard on 6th November, 2024.

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

----S. 302(b)---Appreciation of evidence---Contradictions in the statements of witnesses---Accused was charged for committing murder of the husband of complainant---Statement of the complainant upon which FIR was lodged and endorsement of police at the bottom showed that police reached the place of occurrence where statement of the complainant was reduced into writing---Contrary to that, complainant stated in her cross-examination that application was drafted in hospital---Said application was drafted at about 2:00 a.m. (FIR showed that it was lodged at 1:45 a.m. before the statement of the complainant)---Investigating Officer of the case stated in his examination-in-chief that he recorded the statement of witness at the spot---Contrary to that, said witness stated in his cross-examination that he got recorded his statement before police orally which was recorded by the Investigating Officer in the hospital outside mortuary at about 2:00 a.m.---Said contradictions were not ignorable, rather shattered the credibility of the eye-witnesses creating doubt regarding their presence at the time and place of occurrence and also negated the whole story of the prosecution---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Appreciation of evidence---Night time occurrence---Identity of the accused doubtful---Accused was charged for committing murder of the husband of complainant---Rough and scaled site plans of the place of occurrence showed the presence of the deceased at point (1) which was almost adjacent to the houses of "KR" and "MH", who had not been produced in support of the story of prosecution---Complainant stated in her cross-examination that accused was at a distance of 10/12 feet from her (them) at the time of occurrence which took place at midnight---In these circumstances, identity of the appellant was also not free from doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Appreciation of evidence---No justification for the presence of witnesses at the time and place of occurrence---Chance witnesses---Accused was charged for committing murder of the husband of complainant---Complainant stated that her dewar/witness and given up witness were talking to one another at odd hours of the night i.e. 12:30 a.m. in the street and witnessed the occurrence but they had not disclosed the reason of their presence in the street at such time---Complainant also stated in her cross-examination that she had not recorded in her statement that on which topic she and witnesses were talking while standing in the street---In these circumstances, such story of the prosecution was neither plausible nor believable, rather both the eye-witnesses had concealed the real facts of the occurrence which had not taken place in the manner narrated by them---Both the eye-witnesses had stated in their statements before the Trial Court that deceased was coming to house from his work place and reached the place of occurrence whereafter present incident took place at odd hours of the night i.e. 12:30 a.m.---Complainant stated in her cross-examination that she had neither mentioned the name of work place of her husband in her application upon which FIR was lodged nor produced any proof during investigation in that respect---All this showed that reason of the presence of the deceased at the time and place of occurrence i.e. adjacent to the houses of "KR" and "MH" given by the witnesses was false---Even otherwise presence of the deceased adjacent to the said houses at odd hours of the night raised eyebrows---One of the eye-witnesses/dewar of the complainant was not resident of the vicinity of the occurrence, rather was resident of another vicinity---Said witness had not disclosed any reason of his arrival in the house of the complainant on the night of occurrence---Said witness, being chance witness, had failed to establish his presence at the time and place of occurrence with his stated reasons---Appeal against conviction was allowed, in circumstances.

Arshad Khan v. The State 2017 SCMR 564 and Muhammad Rafique v. The State 2014 SCMR 1698 rel.

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

----S. 302(b)---Appreciation of evidence---Motive not proved---Accused was charged for committing murder of the husband of complainant---Record showed that daughter of the deceased stated before the Trial Court that motive of the occurrence was that accused was teasing her whereafter her father admonished him, in response, he extended dire threats to her father---Admittedly, FIR qua the motive story had not been lodged against the appellant---Even otherwise such delayed story was not believable---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Appreciation of evidence---Recovery of weapon of offence on the disclosure of accused not established---Accused was charged for committing murder of the husband of complainant---Investigating Officer stated in his statement before the Trial Court that on 15.07.2022, appellant during interrogation disclosed and got recovered pistol from his house in presence of witnesses---One of the said witnesses had not been produced in support of that recovery---Whereas the other witness, while appearing before the Trial Court did not utter even a single word regarding the recovery---Appeal against conviction was allowed in, circumstances.

(f) Criminal trial---

----Benefit of doubt---Principle---If there is a circumstance which creates a reasonable doubt in the prudent mind about the guilt of the accused, then the accused will be entitled to its benefit not as a matter of grace or concession, but as of right.

Zahid Iqbal Khokhar, Advocate/Defence Counsel for Appellant.

Naeem Akbar, DPG with Awaiz Hayat, SI for the State.

Aabid Maroof Mughal for the Complainant.

Date of hearing: 6th November, 2024.

Judgment

Sadaqat Ali Khan, J.---Appellant (Khawaja Muhammad Tayyab) has been tried by the trial Court in case FIR No.906 dated 06.07.2022 in offence under Section 302, P.P.C. Police Station Waris Khan, District Rawalpindi, and was convicted and sentenced vide judgement dated 31.05.2023 as under:-

Khawaia Muhammad Tayyab (appellant)

Under section 302(b), P.P.C. Sentenced to DEATH for committing Qatl[Islamabad]Amd of Mehmood Asghar (deceased) with compensation of Rs.3,00,000/- payable to legal heirs of deceased under section 544-A(1), Cr.P.C., recoverable as arrears of land revenue, and in default whereof to further undergo simple imprisonment for 6-months.

1. Appellant has filed this Criminal Appeal against his conviction and the trial Court has sent Murder Reference for confirmation of his death sentence or otherwise, which are being decided through this single judgment.

2. Heard. Record perused.

3. Mehmood Asghar was done to death in the street on 06.07.2022 at 12:30 a.m. (night) whereafter FIR was lodged on the same night at 1:45 a.m. on the statement of his wife Samina Mehmood PW-6/complainant, who while claiming herself to be the eye-witness of the occurrence stated in her statement before the trial Court as under:-

"My husband Mehmood Asghar worked in Gas Agency. I have a daughter namely Zainab aged about 13 years. Some days prior to the day of occurrence, accused Khawaja Tayyab (present in the court) teased my daughter Zainab. On coming to house, my daughter told us about teasing of accused. My husband Mehmood Ahmad admonished accused Tayyab. My dewar Yaqoob Asghar and Tariq Shahzad came to our house to talk about said matter. On 06.07.2022 I along with Yaqoob Asghar and Tariq Shahzad was standing in the street outside my house and were talking. At about 12:30am my husband Mehmood Asghar while riding on motorcycle bearing registration No.ABN/983 came from his work place i.e Gas Agency. When he reached the street near our house, in the meanwhile, accused Khawaja Tayyab while armed with pistol came out from his house and came in front of my husband. My husband tried to save him. Accused Khawaja Tayyab fired a shot with his pistol which hit on back of head of my husband, who fell down in serious injured condition. Accused Khawaja Tayyab fired 2/3 more shots upon my husband. Occurrence was witnessed by me, Yaqoob Asghar and Tariq Shahzad. On our hue and cry, accused fled away from the spot while brandishing his pistol. My husband succumbed to the injuries at the spot.

Motive behind the occurrence was that Khawaja Tayyab was not having good character, who committed murder of my husband for admonishing him from teasing my daughter. Police came at the spot. I got recorded my statement Ex.PF which was read over to me. I marked my thumb impression Ex.PF/ 1 on my statement."

1. Tariq Shahzad Pw-7 (brother of the deceased) while appearing before the trial Court has reiterated the same story.

2. Statement of the complainant (Exh. PF) upon which FIR was lodged and endorsement of police at the bottom show that police reached the place of occurrence where statement of the complainant was reduced into writing. Contrary to this, complainant (Samina Mehmood PW-6) stated in her cross-examination that application (statement/Exh.PF) was drafted in hospital; that was drafted at about 2:00 a.m. (FIR shows that it was lodged at 1:45 a.m. before the statement of the complainant Exh. PF). Nasir Waseem, SI Pw-11/IO of this case stated in his examination-in-chief that he recorded the statement of Tariq Shahzad PW-7 at the spot. Contrary to this, Tariq Shahzad PW-7 stated in his cross-examination that he got recorded his statement before police orally which was recorded by the IO in the hospital outside mortuary at about 2:00 a.m. These contradictions are not ignorable, rather shatter the credibility of the eye-witnesses creating doubt regarding their presence at the time of occurrence at the place of occurrence and also negate the whole story of the prosecution.

3. Rough and scaled site plans of the place of occurrence show the presence of the deceased at point (1) which is almost adjacent to the houses of Haji Khalid Rehman and Muhammad Hashim, who have not been produced in support of the story of prosecution. Complainant (Samina Mehmood PW-6) stated in her cross-examination that accused (appellant) was at a distance of 10/12 feet from her (them) at the time of occurrence which took place at mid of night. In these circumstances, identity of the appellant is also not free from doubt.

4. Statedly, complainant Samina Mehmood PW-6, her Dewar Tariq Shahzad PW-7 and Yaqoob Asghar (given up PW) were talking to one another at odd hours of the night i.e. 12:30 a.m. in the street and witnessed the occurrence but they have not disclosed the reason of their presence in the street at such time. Complainant (Samina Mehmood PW-6) also stated in her cross-examination that she had not got recorded in her statement (Exh. PF) that on which topic she (Samina mehmood PW-6), Tariq Shahzad Pw-7 and Yaqoob Asghar (given up PW) were talking while standing in the street. In these circumstances, this story of the prosecution is neither plausible nor believable, rather both the eye-witnesses have concealed the real facts of the occurrence which has not taken place in the manner narrated by them (Samina Mehmood PW-6 and Tariq Shahzad PW-7), such conduct of the witnesses is quite unnatural.

5. Both the eye-witnesses have stated in their statements before the trial Court that deceased was coming to house from his work place i.e. gas agency, reached the place of occurrence whereafter present occurrence took place at odd-hours of the night i.e. 12:30 a.m. Complainant (Samina Mehmood Pw-6) stated in her cross-examination that she has neither mentioned the name of gas agency (work place of her husband) in her application (Exh. PF upon which FIR was lodged) nor produced any proof during investigation in this respect. All this shows that reason of the presence of the deceased at the time of occurrence at the place of occurrence i.e. adjacent to the houses of Haji Khalid Rehman and Muhammad Hashim (discussed above) given by the PWs is false one, otherwise presence of the deceased adjacent to the said houses at odd hours of the night raises eyebrows.

6. Dead body of the deceased was shifted to hospital through officials of rescue 1122. Neither any official of rescue 1122 nor any report in this respect has been produced to establish the presence of the eye-witnesses with the dead body at relevant time, who statedly were with the deceased at the time of occurrence and shifting of the dead body through rescue 1122 from the place of occurrence, otherwise this story of the eye-witnesses is not believable.

7. Recovery memos i.e. of blood stained earth, collection of crime empties and recovery of motorcycle from the place of occurrence do not show the name of the accused (appellant) which also create doubt qua the involvement of the appellant.

8. Inquest report shows that Fazal-e-Rabi and Muhammad Qasim-PW-8 were present with the dead body at the spot but presence of the eye-witnesses around the dead body is not mentioned. Muhammad Qasim PW-8 while appearing before the trial Court has also not stated that when he reached the place of occurrence eye-witnesses were also present with the dead body at the spot. All this shows that it was unwitnessed occurrence.

9. Tariq Shahzad PW-7 is not resident of vicinity of the occurrence i.e. Mohallah Chaudhary Waris Khan, rather is resident of Mohallah Dhoke Hukamdad, Rawalpindi. He has not disclosed any reason of his arrival in the house of the complainant on the night of occurrence. He, being chance witness, has failed to establish his presence at the time of occurrence at the place of occurrence with his stated reasons. 2017 SCMR 564 "Arshad Khan v. The State" and 2014 SCMR 1698 "Muhammad Rafique v. The State".

10. Considering the peculiar facts and circumstances of this case (discussed above), we are of the view that it was an unseen occurrence took place at odd hours of the night. Both the witnesses have not witnessed the occurrence, rather on getting information of the occurrence, complainant got registered the FIR after making statement in the hospital after due deliberation and consultation at much later stage but wrongly shown the time of lodging of the FIR i.e. 1:45 a.m. just to show it prompt one. 2019 SCMR 631 "Muhammad Arif v. The State".

2025 M L D 552

[Lahore]

Before Ch. Muhammad Iqbal, J

Shehnaz Akhtar Zahoor Cheema and another---Petitioners

Versus

The Additional District Judge and another---Respondents

Writ Petition No. 60039 of 2022, heard on 17th December, 2024.

Civil Procedure Code (V of 1908)---

----S. 20 (c)---Specific Relief Act (I of 1877), S. 12---Suit for recovery on basis of agreement---Territorial jurisdiction of the Court---Cause of action, arising of---Scope---In wake of objection regarding territorial jurisdiction of the Trial Court raised by defendants, Trial Court framed preliminary issue, however, the same was decided against the defendants---Defendants /petitioners filed constitutional petition as the District Court maintained the order passed by the Trial Court---Validity---Record revealed that Petitioner No.1 and respondent No.2 were spouses and their relations had gone strained and they instituted adversial litigations against each other---Petitioner No.1 (lady/wife) who was serving in Education Department, instituted suit for recovery of maintenance allowance etc. at Islamabad---Respondent No.2 (husband) filed a suit for recovery against petitioner as well as her real brother on the basis of a written agreement at Civil Court District Hafizabad ; he (respondent No.2) also filed a suit for declaration along with permanent injunction against the petitioner No. I before the Civil Court, Lahore, mentioning the address of petitioner No.1 as she was presently residing at Islamabad---Respondent No.2 himself submitted an application in respect of correct address of the petitioner No. 1 before the court where the suit for recovery was pending by describing her address as that of Islamabad---Petitioners were residents of Islamabad---Under S.20 (c) of Civil Procedure Code, 1908, a suit can be filed within local limits of whose jurisdiction the cause of action, wholly or in part, arises---But perusal of the agreement-in-question showed that it (agreement) did not contain any specific place at which the same was executed and the alleged amount was paid---As such the orders passed by the Courts below were patently illegal and not sustainable in the eyes of law---High Court set-aside the impugned orders while deciding the preliminary issue of territorial jurisdiction in favour of the petitioners---Trial Court would return the plaint to respondent No.2 for its presentation before the proper forum---Constitutional petition was allowed accordingly.

Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24 ref.

Usman Nasir Awan for Petitioners.

Riaz Karim Qureshi for Respondent No. 2.

Date of hearing: 17th December, 2024.

Judgment

Ch. Muhammad Iqbal, J.---Through this writ petition, the petitioners have challenged the validity of order dated 10.05.2022, passed by the learned Addl. District Judge, Hafizabad who dismissed the revision petition of petitioners and upheld the order dated 15.03.2021 passed by the learned Civil Judge, Hafizabad.

1. Brief facts of the case as stated by the learned counsel for the petitioners are that respondent No.2/Muhammad Aslam filed a suit against the petitioner for recovery of Rs.1,70,00,000/- on the basis of written agreement before the learned Senior Civil Judge, Hafizabad. The petitioners filed written statement denying the allegations levelled in the suit and contended that the suit has been filed as counterblast to the suits of the petitioner in different Courts at Islamabad. The details whereof is as under:-

| | | | | | --- | --- | --- | --- | | 1. | Suit for recovery of Maintenance Shehnaz Akhtar v. Muhammad Aslam instituted on 11.05.2017 decided on 28.04.2018 | Before the learned Senior Civil Judge (East) Islamabad | The petitioner No.1 filed suit for maintenance against the respondent which was decreed in her favour | | 2. | Suit for Declaration and Recovery of Damages Shehnaz Akhtar v. Muhammad Aslam instituted on 24.10.2017 | Before learned Senior Civil Judge (East) Islamabad | Petitioner No.1 filed suit for recovery of damages against the respondent, which is pending. | | 3. | Execution Petition Shehnaz Akhtar v. Muhammad Aslam. | Before learned Senior Civil Judge (East) Islamabad | Petitioner filed execution petition against the respondent for implementation of judgment dated 28.04.2018 which is pending. | | 4. | Suit for restitution of Conjugal Rights Muhammad Aslam v. Shehnaz Zahoor instituted on 06.07.2017 | Before the learned Senior Civil Judge (East) Islamabad. | The respondent filed suit for restitution of conjugal rights which is pending. | | 5. | Appeal under Section 14 of the Family Court Act Muhammad Aslam v. Shehnaz Zahoor instituted on 22.05.2018 | Before the learned Addl. District Judge (East) Islamabad | The respondent filed appeal against judgment dated 28.04.2018 which is pending. |

The petitioner also raised objection regarding territorial jurisdiction of the trial court at Hafizabad to adjudicate the matter. The trial court treated the issue of jurisdiction. i.e. "whether this court has not territorial jurisdiction to adjudicate upon the matter? OPD" as preliminary issue and after hearing the parties decided the above said issue against the petitioner holding that the court at District Hafizabad has the jurisdiction to adjudicate the matter. The petitioners assailed the said order through filing Civil Revision which was dismissed by the Revisional Court vide order dated 10.05.2022. Hence, this writ petition.

2025 M L D 573

[Lahore]

Before Ch. Muhammad Iqbal, J

Manzoor Ahmad---Petitioner

Versus

Chiragh Khan (deceased) through LRs---Respondent

Civil Revision No. 164468 of 2018, heard on 26th September, 2024.

(a) Islamic law---

----Inheritance, right of---Devolution of inheritance of the property of a deceased bachelor/spinster---Scope---After the death of father of spinster his mother married the brother of her husband ('R') and out of the wedlock petitioner was born---Upon death of spinster, inheritance mutation was made in favour of her uterine brother (petitioner)---R's other sons from a different wife (respondents Nos.1 & 2) instituted a suit for declaration, claiming that they were also entitled to inherit from spinster as R's sons---Petitioner also filed a suit claiming that he was sole heir of spinster---Suit of the petitioner was dismissed, whereas the one instituted by respondents Nos.1 and 2 was decreed---Petitioner preferred an appeal, which was also dismissed---Validity---Petitioner was real uterine brother of spinster and under Islamic law when a real brother of a deceased issueless spinster lady is alive, he is entitled to inherit the entire estate of the deceased and the paternal uncle or his successors were not entitled to inherit any share---Evidence produced by the respondents was in the statement of their counsel, thus, the same was inadmissible---Decision of fora below on issues Nos.1 to 3 suffered from blatant misreading and non-reading of evidence as well as mis-application of law, thus, High Court in exercise of its revisional jurisdiction under S.115, C.P.C. reversed the concurrent findings of the lower fora---Civil revision was allowed, in circumstances.

The Federation of Pakistan through Secretary, Law and Parliamentary Affairs, Islamabad v. Muhammad Ishaq and another PLD 1983 SC 273; Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407; Mst. Fazal Jan v. Roshan Din and others PLD 1990 SC 661; Ismail and another v. Ghulam Qadir and others 1990 SCMR 1667; Sardar v. Mst. Nehmat Bi and 8 others 1992 SCMR 82; Muhammad Yousaf through Legal Heirs and 2 others v. Mst. Karam Khatoon through Legal Heirs and 2 others 2003 SCMR 1535; Ghulam Haider and others v. Murad through Legal Representatives and others PLD 2012 SC 501; Fayyaz Hussain and others v. Haji Jan Muhammad and others 2018 SCMR 698; Ghulam Qasim and others v. Mst. Razia Begum and others PLD 2021 SC 812; Abdul Khaliq (deceased) through LRs. v. Fazalur Rehman and others 2022 SCMR 1665; Manzoor Hussain (deceased) through Legal Heirs and others v. Muhammad Rafique and others 2020 CLC 400; Gul Muhammad and others v. Allah Diwaya (deceased) through his Legal Heirs and others 2021 MLD 1146; Saadullah and others v. Mst. Gulbanda and others 2014 SCMR 1205; Waris Ali and others v. Rasoolan Bibi PLD 2014 SC 779; Muhammad Sharif v. Mst. Niamat Bibi 2021 SCMR 1355; Shahray Khan (deceased) through LRs. and others v. Qadir Bakhsh (deceased) through LRs. and others 2023 SCMR 201 and Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others 2016 SCMR 24 rel.

(b) Constitution of Pakistan---

----Art. 227---Provisions relating to the Holly Quran and Sunnah---Controversial issues of inheritance of deceased Muslim---Resolution of---Controversial issue of inheritance of a deceased Muslim are to be resolved according to Quran and Sunnah---Under Art. 227 of the Constitution the principles of Quran and Sunnah are admitted as supreme law of the country and all provisions, rules, regulations are to be legislated and framed within the precincts of Islamic principles.

(c) Islamic law---

----Inheritance---Share of heirs---Determination---Scope---Rights or shares of each and every Muslim heir in the estate of his/her deceased propositus are absolutely, conclusively and finally described/determined in the Holy Quran, and such shares are definite in nature.

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

----Arts. 72, 117 & 120---Document---Proof---Production of documentary evidence in the statement of counsel---Inadmissible in evidence---Production of documents in the statement of counsel is considered as an invalid mode of tendering of documents and such documents are inadmissible in evidence and cannot be relied upon as valid evidence and cannot be taken into consideration.

Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others PLD 2021 SC 715 and Rustam and others v. Jehangir (deceased) through LRs 2023 SCMR 730 rel.

Sahibzada Saleem Raza for Petitioner.

Syed Afzal Haider for Respndents Nos. 1-A, B.

Ghulam Awais Ahmad Siddiqi for Respondents Nos. 4 and 5.

Muhammad Naeem Bhatti for Respondents.

Date of hearing: 26th September, 2024.

Judgment

Ch. Muhammad Iqbal, J.---Through this civil revision, the petitioner has challenged the vires of consolidated judgment and decree dated 17.10.2014 passed by the learned Civil Judge, Kamalia whereby suit for declaration filed by the petitioner was dismissed and suit for declaration filed by respondents Nos.1 and 2 was decreed and also assailed the judgment and decree dated 11.12.2017 passed by the learned Addl. District Judge, Pir Mahal who dismissed the appeal of the petitioner.

1. Brief facts of the case are that Noora son of Makhna had four real brothers namely Rustam, Muhammad, Fazil and Jahana (issueless). Noora son of Makhna was married with Mst. Sammo and from this wedlock a daughter Mst. Nooran only was born. After death of Noora in the year 1940 his widow Mst. Sammo contracted second marriage with Rustam, who was real brother of Noora. From this wedlock of Mst. Sammo with Rustam, Manzoor Ahmad was born; that Mst. Nooran daughter of Noora was owner of property measuring 76-Kanals 16-Marlas comprising Khewat Nos.14 and 15 situated in Chak No.699/GB, Tehsil Kamalia. She died as spinster (unmarried), and her inheritance mutation No.294 dated 20.07.2002 was sanctioned in favour of her uterine brother Manzoor Ahmad. The other sons of Rustam from his wedlock with Mst. Sattan namely Chiragh etc. (plaintiffs/ respondents Nos.1 and 2) filed a suit for declaration that the plaintiff and defendant being sons of Rustam step father of deceased Nooran Bibi are entitled to inherit share from her estate and their names may also be incorporate in the revenue record, whereas inheritance mutation No.294 dated 20.07.2002 of deceased Nooran, exclusively in favour of the petitioner/defendant No.1 namely Manzoor Ahmad is against the law and facts, based on fraud and same is ineffective upon the rights of the plaintiffs and is liable to be cancelled.

Present petitioner/defendant No.1/Manzoor Ahmad contested the said suit on factual and legal parlances as well as filed suit for declaration with the assertion that Mst. Nooran his real sister was owner of the suit property. Petitioner/defendant being her real brother /the sole heir of the deceased is owner of the said property as Mst. Nooran died on 14.10.2001 after the death of plaintiffs father Rustam on 09.06.2001, but Chiragh Khan etc. the respondents/plaintiffs got prepared a forged death certificate of Nooran showing her date of death as 10.06.1998 just to deprive the petitioner / defendant from his inherited land. The adverse parties contested the suits of each other by filing written statement by controverting the assertions of each other on legal and factual judicial parlances. Both suits were consolidated, accordingly issues were framed and the parties lead their respective oral as well as documentary evidence. The trial court vide consolidated judgment and decree dated 17.10.2014 decreed the suit of Chiragh Khan etc. respondents Nos.1 and 2 as prayed for, whereas dismissed the suit of the petitioner / Manzoor Ahmad. Against the said judgment and decree, the petitioner preferred an appeal which was dismissed vide judgment and decree dated 11.12.2017 by the appellate court. Hence, this civil revision.

1. Arguments heard. Record perused.

2. As both the divergent parties filed civil suit against each other, thus for clarity Chiragh Khan and Zahoor Ahmad respondent Nos.1 and 2 will be referred hereinafter as respondents/ plaintiffs whereas Manzoor Ahmad will be cited as petitioner/ defendant No.1.

3. The main controversy involves in this lis is centered upon issues Nos.1 to 3 which are reproduced as under:-

"1. Whether the plaintiffs are entitled to decree for declaration regarding suit land, as prayed for in the plaint? OPP

2. Whether the inheritance mutation No.294 dated 20.07.2002 is against the law and facts and is liable to be set aside? OPP

1. Whether Mst. Nooran daughter of Noora died on 14.10.2001 instead of 10.06.1998 and the death certificate of said Nooran bearing date of her death on 10.06.1998 is false, against the law, based on fraud and thus liable to be cancelled? OPP"

Chiragh Khan etc., plaintiff/ respondents filed a suit for declaration challenging therein the vires of inheritance mutation No.294 dated 20.07.2002 with the assertion that Mst. Nooran daughter of Noora died on 10.06.1998 and at that time, Rustum predecessor in interest of the respondents/plaintiffs, real uncle of Nooran remained alive till 09.06.2001 and he died after the death of Mst. Nooran as such they are entitled to inherit share from her estate, whereas Petitioner/defendant No.1/Manzoor Ahmad fraudulently got incorporated mutation No.294 dated 20.07.2002 in his favour. In support of above version, Chiragh Khan (one of the plaintiffs) appeared as PW1 who stated that Nooran died on 10.06.1998 at the age of 60/65 years without solemnization marriage. Rustam died on 09.06.2001 who was real uncle of Nooran and was only owner, as such mutation No.294 is based on fraud. In cross-examination he admitted that against sanctioning of inheritance mutation, he filed an appeal before DOR which was dismissed. Murad appeared as PW2 who stated that mutation No.294 was wrongly incorporated in favour of Manzoor Ahmad.

1. Conversely, Zakir Hussain appeared as DW1 who stated that he is general attorney of Manzoor Ahmad son of Rustam. Mst. Nooran was daughter of Noora who died on 14.10.2001. She was owner of the suit land and was alive on 10.06.1998 and Chiragh with collusiveness of the official of Union Council got prepared a forged death certificate of Mst. Nooran, as such death certificate is forged which is liable to be cancelled. From mother side Manzoor is real brother of Nooran. The inheritance mutation No.294 of Nooran was rightly incorporated in the revenue record in favour of Manzoor Ahmad. Against the said mutation Chiragh, Zahoor Ahmad, Gull Muhammad, Murad and Pehalwan filed an application before DDOR Kamalia for cancellation of inheritance mutation No.294 which was dismissed on 10.04.2003 whereafter Chiragh Khan and Zahoor Ahmad filed suit. Muhammad Sadiq appeared as DW2 who stated that:-

2. As per available record, Noora contracted marriage with Mst. Samoo and from the said wedlock, Mst. Nooran was born. After death of Noora in the year 1940, his widow Mst. Samoo contracted second marriage with Rustam who was real brother of deceased Noora. From the second wedlock of Mst. Samo with Rustam, petitioner/Manzoor Ahmad was born as such he is uterine brother of Mst. Nooran deceased. For ready reference, admitted the pedigree table of the parties of the lis is reproduced as under:-

3. Admittedly, parties of the lis as well as their predecessor are Muslims and controversial issue of inheritance of a deceased Muslim are to be resolved according to Quran and Sunnah. Even as per Article 227 of the Constitution of the Islamic Republic of Pakistan, 1973, the principles of Quran and Sunnah are admitted as supreme law of this country and all provisions, rules, regulations are to be legislated and framed within the precincts of Islamic principles. For reference, Article 227 of the Constitution of Islamic Republic of Pakistan, 1973 is reproduced as under:-

227. Provisions relating to the Holy Quran and Sunnah.-(1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such injunctions.

Explanation.-In the application of this clause to the personal law of any Muslim sect, the expression "Quran and Sunnah" shall mean the Quran and Sunnah as interpreted by that sect.

(2) Effect shall be given to the provisions of clause (1) only in the manner provided in this Part.

(3) Nothing in this Part shall affect the personal laws of non-Muslim citizens or their status as citizens.

As the predecessor-in-interest of the parties of the lis as well as the parties themselves are Muslims and principles of Quran and Sunnah are mandatorily applicable upon them as well. The shares of each and every Muslim inheritor have conclusively been prescribed in Holy Quran. Allah Almighty has ordained the Muslims to decide their all disputes including issue of inheritance as per the principles of the Holy Quran as described in following verses:

The rights or shares of each and every Muslim heirs in the estate of his/her deceased propositus is absolutely, conclusively and finally described/determined in the Holy Quran, which shares are definite in nature. In this regard, it is expedient to take guidance from the Holy Quran, particularly from Surah tul Nisa Ayat Nos.7 to 11 (English translation whereof by Marmaduke Pickthall and Urdu translation by Molana Fateh Muhammad Jalandari) are reproduced as under:-

1. Unto the men (of a family) belongeth a share of that which parents and near kindred leave, and unto the women a share of that which parents and near kindred leave, whether it be little or much. A legal share.

2. And when kinsfolk and orphans and the needy are present at the division (of the heritage), bestow on them therefrom and speak kindly unto them.

3. And let those fear (in their behaviour toward orphans) who if they left behind them weak offspring would be afraid for them. So let them mind their duty to Allah, and speak justly.

4. Lo! Those who devour the wealth of orphans wrongfully, they do but swallow fire into their bellies. And they will be exposed to burning flame.

11. Allah commands you concerning (the provision for) your children; to the male the equivalent of the portion of two females, and if there be only women more than two, then theirs is two-thirds of the inheritance, and if there be one (only) then for her is the half. And to each of his parents a sixth of the inheritance, if he have a son; and if he have no son and his parents are his heirs, then to his mother appertaineth the third; but if he have brethren, then to his mother appertaineth the sixth, after any legacy he may have bequeathed, or debt (hath been paid). Your parents and your children: Ye know not which of them is nearer unto you in usefulness. It is an injunction from Allah. Lo! Allah is knower, Wise.

Further in respect of inheritance of a deceased bachelor / spinster Muslim (male/female) in Surah tul Nisa, Ayat No.176, it has been ordered as under:-

Reliance in this regard is placed on cases titled as The Federation of Pakistan through Secretary, Law and Parliamentary Affairs, Islamabad v. Muhammad Ishaq and another (PLD 1983 SC 273), Abdul Ghafoor and others v. Muhammad Shafi and others (PLD 1985 SC 407), Mst. Fazal Jan v. Roshan Din and others (PLD 1990 SC 661), Ismail and another v. Ghulam Qadir and others (1990 SCMR 1667), Sardar v. Mst. Nehmat Bi and 8 others (1992 SCMR 82), Muhammad Yousaf through Legal Heirs and 2others v. Mst. Karam Khatoon through Legal Heirs and 2 others (2003 SCMR 1535), Ghulam Haider and others v. Murad through Legal Representatives and others (PLD 2012 SC 501), Fayyaz Hussain and others v. Haji Jan Muhammad and others (2018 SCMR 698), Ghulam Qasim and others v. Mst. Razia Begum and others (PLD 2021 SC 812), Abdul Khaliq (deceased) through LRs. v. Fazalur Rehman and others (2022 SCMR 1665) and Manzoor Hussain (deceased) through Legal Heirs and others v. Muhammad Rafique and others (2020 CLC 400). Reliance is also placed on the case cited as Gul Muhammad and others v. Allah Diwaya (deceased) through his Legal Heirs and others (2021 MLD 1146).

1. Furthermore, the petitioner/Manzoor is real uterine brother of deceased Mst. Nooran and it is settled law that when a real brother of a deceased issueless spinster lady is alive, he is entitled to inherit the entire estate of the deceased and the paternal uncle or his successors are not entitled to inherit any share. Reliance in this regard is placed on cases cited as Saadullah and others v. Mst. Gulbanda and others (2014 SCMR 1205), Waris Ali and others v. Rasoolan Bibi (PLD 2014 SC 779), Muhammad Sharif v. Mst. Niamat Bibi (2021 SCMR 1355) and Shahray Khan (deceased) through LRs. and others v. Qadir Bakhsh (deceased) through LRs. and others (2023 SCMR 201).

2. So far as the controversy of date of death of Mst. Nooran is concerned, suffice it to say that record shows that Chiragh Khan etc., did not prove that Mst. Nooran died on 10.06.1998, as only the death certificate was produced in evidence in the statement of the learned counsel for the plaintiffs and the said document has no intrinsic value and by exclusion of the said document from judicial consideration, there is nothing on the record to show that Mst. Nooran died on 10.06.1998 which falw leads to hold that plaintiff/ respondents have failed to prove their stance. Further, respondents Nos.1 and 2/plaintiffs challenged the inheritance mutation No.294 before DDOR on the plea that it was incorporated on the basis of fraud and concealment of true fact but in this regard no credible evidence was produced. Thus, the reasoning expounded by the lower judicial fora has no consonance with the facts of this case and same suffers from perversity.

2025 M L D 610

[Lahore]

Before Farooq Haider, J

Muhammad Rauf---Petitioner

Versus

The State and other---Respondents

Crl. Misc. No. 16105-B of 2024, decided on 28th June, 2024.

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

----S. 497(1), third proviso---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Statutory ground of delay in conclusion of trial---In the present case, the petitioner (accused) was arrested in the case on 30.07.2022 and sent to jail on the same day where he was confined till now i.e. for more than a period of one year and 10 months and trial of the case had not concluded---Case had been registered against the petitioner under S.489-F, P.P.C, and same was not punishable with death---Statutory period for grant of bail on the ground of delay in conclusion of trial of the case was continuous detention exceeding one year as per 3rd proviso to S.497(1), Cr.P.C.---It was not disputed by the prosecutor and the complainant that petitioner was behind the bars for a continuous period exceeding one year and ten months---Perusal of the record revealed that challan report under S.173, Cr.P.C., was received in the Court on 19.11.2022, charge was framed against the accused on 20.01.2023 and prosecution witnesses were summoned for 03.02.2023, however, prosecution witnesses did not appear before the Court till 17.10.2023 inspite of summoning them through warrants of their arrest---Meaning thereby that after arrest of the petitioner on 30.07.2022, continuous period of detention of the petitioner exceeding one year lapsed without conclusion of the trial and said delay was not caused due to any act or omission of the petitioner or any other person acting on his behalf---Prosecutor and the complainant could not refer to any material to show that petitioner was a previously convicted offender for an offence punishable with death or imprisonment for life or to opine at this stage petitioner was a hardened, desperate or dangerous criminal or was accused of an act of terrorism punishable with death or imprisonment for life---Moreover, after completion of statutory period, if any adjournment had been obtained by the accused, it did not disentitle him for grant of bail on ground of delay in conclusion of trial rather he was entitled to be released on bail as a matter of right---Therefore, a right to be released on post-arrest bail had accrued to the petitioner due to delay in conclusion of trial of the case under 3rd proviso to S.497(1), Cr.P.C.---If case for grant of post-arrest bail on the ground of delay in conclusion of trial has been made out then bail is granted as a "right" under 3rd proviso to S.497(1), Cr.P.C.---Petition for grant of post-arrest bail on the statutory ground of delay in conclusion of trial of the case was allowed, in circumstances.

Muhammad Umer Shahzad v. The State and others 2023 SCMR 1450 and Nadeem Samson v. The State and others PLD 2022 SC 112 rel.

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

----Ss. 497 & 498---Bail---Observations of the Court---Scope---Observations made in the bail order are just tentative in nature, strictly confined to the disposal of bail petition and have no bearing upon trial of the case.

Ms. Asifa Riasat for Petitioner.

Rana Muhammad Shafique, Deputy Prosecutor General for the State along with Muhammad Maalik, ASI and record of the case.

Mian Shaukat Ali for Respondent No.2/Complainant of the case.

Order

Farooq Haider, J.---Through instant petition, Muhammad Rauf (petitioner/ accused) has sought post-arrest bail in case arising out of FIR No.565/2021 dated: 28.05.2021 registered under Section: 489-F, P.P.C. at Police Station: City Jaranwala, District: Faisalabad.

This is second petition filed by the petitioner for grant of post-arrest bail in the case before this Court whereas first petition filed by the petitioner for post-arrest bail in the case before this Court bearing Crl. Misc. No.13294-B of 2023 was dismissed on merits vide order dated: 16.03.2023 passed by this Court (copy of the order is available at Page Nos.13-14 of the petition). Thereafter, petitioner filed Crl. Petition No.866-L of 2023 before Supreme Court of Pakistan against aforementioned order dated: 16.03.2023 passed by this Court in Crl. Misc. 13294-B of 2023, which came up for hearing on 06.12.2023 and learned counsel for the petitioner contended there that right of bail on statutory ground has been accrued in favour of the petitioner, therefore, in order to file application before the trial court on this fresh ground i.e. statutory ground, he wants to withdraw the petition for the time being and same was dismissed as withdrawn (copy of the order is available at Page No.19 of this petition) and relevant portion of the order is hereby reproduced:-

"Learned counsel for the petitioner contends that during the pendency of this petition a right of bail on statutory ground has been accrued in favour of the petitioner and in order to file an application before the trial court, on this fresh ground i.e. statutory ground, he wants to withdraw this petition for the time being. He may do so. This petition is dismissed as withdrawn."

Then petitioner filed application for post arrest bail on statutory ground of delay in conclusion of trial of the case before trial court and then before learned Additional Sessions Judge, Jaranwala but same have been dismissed and now instant petition has been filed for post-arrest bail before this Court on the ground of delay in conclusion of trial of the case.

1. After hearing learned counsel for the parties, learned Deputy Prosecutor General and going through the available record with their able assistance, it has been noticed that briefly, as per Crime Report (FIR) got recorded by Mirza Shabbir Haider (complainant of the case/respondent No.2 in the petition), petitioner issued cheque of Rs.30,00,000/- to the complainant which was dishonoured on presentation by the bank. Petitioner was arrested in this case on 30.07.2022 and sent to jail on the same day where he is confined till now i.e. for more than period of one year and 10 months and trial of the case has not been concluded.

Case has been registered against the petitioner under Section: 489-F, P.P.C. and same is not punishable with death, therefore, statutory period for grant of bail on the ground of delay in conclusion of trial of the case is continuous detention exceeding one year as per 3rd proviso to Section 497(1), Cr.P.C. It is not disputed by the learned Deputy Prosecutor General and learned counsel for the complainant that petitioner is behind the bars for a continuous period exceeding one year and ten months so now question does arise that whether after his arrest, petitioner has caused any delay during the period exceeding one year in conclusion of trial of the case and in order to examine the same, attested copy of order sheet annexed with this petition from Page No.32-40 has been perused and perusal of the same reveals that challan report under Section 173, Cr.P.C. was received in the Court on 19.11.2022, charge was framed against the accused on 20.01.2023 and prosecution witnesses were summoned for 03.02.2023, however, prosecution witnesses did not appear before the court till 17.10.2023 inspite of summoning them through warrants of their arrest. Meaning thereby that after arrest of the petitioner on 30.07.2022, continuous period of detention of the petitioner exceeding one year lapsed without conclusion of the trial and said delay was not caused due to any act or omission of the petitioner or any other person acting on his behalf. Learned Deputy Prosecutor General and learned counsel for the complainant could not refer any material to show that petitioner is previously convicted offender for an offence punishable with death or imprisonment for life or to opine at this stage that petitioner is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life. It is also relevant to mention here that after completion of statutory period, if any adjournment has been obtained by the accused, it does not disentitle him for grant of bail on ground of delay in conclusion of trial rather he is entitled to be released on bail as a matter of right and in this regard cases of "Muhammad Umer Shahzad v. The State and others" (2023 SCMR 1450) and "Nadeem Samson v. The State and others" (PLD 2022 SC 112) can be referred and relevant portions from latter case law from its Paragraphs Nos. 8 to 10 are reproduced:-

"8. The scope of the 3rd proviso to section 497(1), Cr.P.C. has recently been expounded by this Court in the Shakeel Shah case, cited by the counsel for the petitioner, by examining and interpreting provisions as well as the provisions of the related 4th proviso, in detail. We, therefore, think it unnecessary to re-examine the scope of those provisos again in this case, especially when we find ourselves in agreement with what has been held in that case. What we consider appropriate to do is to recapitulate the main principles enunciated therein, as to the meaning, extent and scope of the 3rd proviso, for clear understanding of, and compliance by, all the other courts in the country in terms of Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973. They are:

(i) The purpose and object of the 3rd proviso to section 497(1), Cr.P.C. is to ensure that the trial of an accused is conducted and concluded expeditiously, and that the pre-conviction detention of an accused does not extend beyond the period of two years in cases involving an offence punishable with death, or one year in other cases;

(ii) The period of one year or two years, as the case may be, for the conclusion of the trial begins from the date of the detention of the accused in the case, not from the date when the charge is framed and trial commenced:

(iii) A statutory right to be released on bail accrues in favour of the accused if his trial is not concluded within the specified period, i.e., exceeding one year or two years as the case may be, from the date of his detention;

(iv) This statutory right of the accused to be released on bail is, however, subject to exceptions: one is embodied in the 3rd proviso itself and the second is provided in the 4th proviso, which are: (a) the delay in conclusion of the trial is occasioned by an act or omission of the accused or by any other person acting on his behalf, and (b) the accused is a convicted offender for an offence punishable with death or imprisonment for life, or is in the opinion of the court a hardened, desperate or dangerous criminal, or is accused of an act of terrorism punishable with death or imprisonment for life.

(v) The act or omission on the part of the accused to delay the timely conclusion of the trial must be the result of a visible concerted effort orchestrated by the accused. Merely some adjournments sought by the counsel for the accused cannot be counted as an act or omission on behalf of the accused to delay the conclusion of the trial, unless the adjournments are sought without any sufficient cause on crucial hearings, i.e., the hearings fixed for examination or cross-examination of the prosecution witnesses, or the adjournments are repetitive reflecting a design or pattern to consciously delay the conclusion of the trial; and

(vi) The phrase "a hardened, desperate or dangerous criminal" denotes an accused who is likely to seriously injure and hurt others without caring for the consequences of his violent act and will pose a serious threat to the society if set free on bail. Such tentative finding as to character of the accused must be based upon careful examination of the facts and circumstances of the case, supported by sufficient incriminating material.

In the light of the above principles, we proceed to appreciate the statutory ground of delay in conclusion of the trial pleaded by the counsel for the petitioner, for grant of bail to the petitioner.

1. The petitioner was arrested and detained, in this case, on 24.11.2017. The charge against the petitioner was framed on 03.04.2018. Two prosecution witnesses were recorded on 27.02.2020. Till that date, a continuous period of exceeding two years since the detention of the petitioner in the case had lapsed without conclusion of the trial: therefore, a right to be released on bail had prima facie accrued to the petitioner, which could have been denied to the petition of the above-stated two exceptions: only this conclusion of the trial had her person on demission of the petitioner or by any other person acting on his behalf and (b) if the petitioner was found to be a convicted offender for an offence punishable with death or imprisonment for life, or was in the opinion of the court a hardened, desperate or dangerous criminal, or was accused of an act of terrorism punishable with death or imprisonment for life.

2. We have examined the record of the case and found that there is no delay in conclusion of the trial till expiry of the two year period of detention of the petitioner on 25.11.2019, which can be attributed to the petitioner or to any person acting on his behalf reflecting a design or pattern to consciously delay the conclusion of the trial. Any delay attributable to the petitioner after the expiry of the said period is not relevant for determining his right to be released on bail on the statutory ground provided in the 3rd proviso to Section 497(1), Cr.P.C. Nor he appears, in the facts and circumstances of the case, to be a hardened, desperate or dangerous criminal" who is likely to seriously injure and hurt others without caring for the consequences of his violent act and will thus pose a serious threat to the society if set free on bail. The petitioner is, therefore, entitled to be released on bail as a matter of right, not as a concession. The delay in conclusion of the trial, noted by the High Court, attributable to the counsel for the petitioner representing him before the trial court, relates to the period after expiry of the continuous two year period since detention of the petitioner in the case; therefore, it could not have been considered by the High Court for determining the right of the petitioner to be released on bail under the 3rd proviso to section 497(1), Cr.P.C."

(emphasis added)

Therefore, a right to be released on post-arrest bail has accrued to the petitioner due to delay in conclusion of trial of the case under 3rd proviso to Section 497(1), Cr.P.C.

So far as abscondence of the petitioner is concerned, suffice it to say that if case for grant of post-arrest bail on the ground of delay in conclusion of trial has been made out then bail is granted as a "right" under 3rd proviso to Section 497(1), Cr.P.C. and in this regard, guidance has been sought from the supra case of "Nadeem Samson v. The State and others" (PLD 2022 SC 112); relevant portion whereof is hereby reproduced: -

"10. We have examined the record of the case and found that there is no delay in conclusion of the trial till expiry of the two year period of detention of the petitioner on 25.11.2019, which can be attributed to the petitioner or to any person acting on his behalf reflecting a design or pattern to consciously delay the conclusion of the trial. Any delay attributable to the petitioner after the expiry of the said period is not relevant for determining his right to be released on bail on the statutory ground provided in the 3rd proviso to Section 497(1), Cr.P.C. Nor he appears, in the facts and circumstances of the case, to be a hardened, desperate or dangerous criminal" who is likely to seriously injure and hurt others without caring for the consequences of his violent act and will thus pose a serious threat to the society if set free on bail. The petitioner is, therefore, entitled to be released on bail as a matter of right, not as a concession."

(emphasis added)

and case of "Shakeel Shah v. The State and others" (2022 SCMR 1) can also be advantageously referred on the subject and relevant portion from the same is hereby reproduced: -

"9. We have, therefore, come to the conclusion that the delay in concluding the trial of the petitioner beyond the period of one year from the date of his arrest/detention has not been occasioned by an act or omission of the petitioner or any other person acting on his behalf, and that in the facts and circumstances of the case the accused does not appear to be a hardened, desperate or dangerous criminal. The petitioner has, thus, made out a case for grant of bail as a matter of right under the third proviso to section 497(1), Cr.P.C.

(emphasis added)

2025 M L D 662

[Lahore]

Before Ch. Muhammad Iqbal, J

Kaniz Haider and another---Petitioners

Versus

Khaliq Dad and others---Respondents

Writ Petitions Nos. 80553, 80520, 80539 and 80547 of 2023, decided on 6th November, 2024.

Islamic law---

----Islamic law---Inheritance---Issueless owners---Principle of Return (Radd)---Applicability---Petitioners assailed mutations of inheritance of their predecessors-in-interest who died issueless and respondents received their share on the principle of Return (Radd)---Validity---On death of a Muslim, his estate devolves upon his heirs [sharers, residuary and/or distant kindred]---If deceased has no residuary, then under the principle termed as Return (Radd) such share returns to the sharers---Predecessors-in-interest of parties died issueless and left no male sharer alive---Respondents were sons of paternal uncle who inherited from the respective estates of deceased owners after satisfaction of shares of sharers---Revenue hierarchy rightly granted due shares to respondents from the estate of deceased owners---High Court declined to interfere in mutations of inheritance, as petitioners were not able to point out any illegality or material irregularity, nor there was any jurisdictional defect---Constitutional petition was dismissed, in circumstances.

Verse No. 33 Surah-i-Nisa of Holy Quran and Para 61 of Muhammadan Law by D.F. Mullah ref.

Mst. Shah Jahan Begum through Legal Heirs v. Zafar Ahmed and others PLD 2018 Lah. 426 rel.

Irshad Ahmad Sialvi for Petitioners.

Muhammad Naveed Ayyaz Qureshi and Muhammad Rafiq for Respondent No. 2.

Ch. Tanveer Akhtar, Additional Advocate General for Respondents Nos. 6 and 7.

Date of hearing: 9th September, 2024.

Judgment

Ch. Muhammad Iqbal, J.---Through this single judgment, I intend to decide the titled Writ Petition [No. 80553/2023] as well as Writ Petition No. 80520/2023, Writ Petition No.80539/2023 and Writ Petition No.80547/2023 as common questions of law and facts are involved in these cases.

Writ Petition No.80553/2023

1. Brief facts of the case as contended by learned counsel for the petitioner are that Muhammad Asghar was owner of different agricultural and residential properties in Districts Khushab, Okara, Bhakkar, Sahiwal and Sargodha including land measuring 290 Kanal 10 Marla situated in Chak No.111/7-R Tehsil Chichawatni District Sahiwal. On 09.05.2016, Muhammad Asghar died issueless leaving behind a widow [Fariha Aalia] and two sisters [Kaniz Haider and Nasreen Akhtar] as his legal heirs and his inheritance mutation No.4659 dated 06.06.2018 of the aforesaid land was sanctioned in favour of his widow and two sisters. Respondent No.3/Muhammad Nazar/paternal cousin of Muhammad Asghar challenged the sanctioning of above mutation on the ground that being residuary he would also inherit from the estate of the deceased but the Assistant Commissioner, Chichawatni dismissed the same vide order dated 29.06.2021. He assailed the said order through revision petition before Additional Commissioner (Revenue), Sahiwal Division, Sahiwal who accepted the petition vide order dated 03.02.2023 and set aside the order dated 29.06.2021 of the Assistant Commissioner. The petitioners assailed the order dated 03.02.2023 through revision petition (ROR) before the Member, Board of Revenue.

Writ Petition No.80520/2023

Through this petition, the petitioners, Kaniz Haider etc. have called in question the inheritance mutation No.5047 dated 13.07.2021 of Muhammad Asghar deceased, whereby the Assistant Director Land Record, Chichawatni also granted share from estate of the deceased to respondents Nos.2 to 4/paternal cousins as residuary. The petitioners challenged the said order/mutation through an appeal which was allowed by the Assistant Commissioner, Chichawatni vide order dated 19.07.2022. The respondents challenged the said order through revision petition which was accepted by the Additional Commissioner (Revenue), Sahiwal Division, Sahiwal vide order dated 03.02.2023. The petitioners assailed the said order through revision petition before the Member, Board of Revenue.

Writ Petition No.80539/2023

Mst. Nasreen Akhtar real sister of the petitioner/Mst. Kaniz Haider died issueless. The Assistant Director Land Record, Chichawatni while incorporating the inheritance mutation [No.5060 dated 25.08.2021] of Mst. Nasreen Akhtar deceased, also granted share from her estate to respondents Nos.2 to 4/paternal cousins as residuary. The petitioner [Kaniz Haider] challenged the said order/mutation through an appeal which was allowed by the Assistant Commissioner, Chichawatni vide order dated 22.03.2022. The respondents challenged the said order through an appeal which was accepted by the Additional Commissioner (Revenue), Sahiwal Division, Sahiwal vide order dated 03.02.2023. The petitioners assailed the said order through revision petition before the Member, Board of Revenue.

Writ Petition No.80547/2023

Mst. Nasreen Akhtar real sister of the petitioner/Mst. Kaniz Haider died issueless. The Assistant Director Land Record, Renala Khurd while incorporating the inheritance mutation No.1003 dated 14.05.2022 of Mst. Nasreen Akhtar deceased, also granted share from her estate to respondents/paternal cousins as residuary. The petitioner [Kaniz Haider] challenged the said order/mutation through an appeal which was allowed by the Assistant Commissioner, Renala Khurd vide order dated 08.04.2023. The respondents challenged the said order through an appeal which was accepted by the Additional Commissioner (Revenue), Sahiwal Division, Sahiwal vide order dated 05.05.2023. The petitioners assailed the said order through revision petition before the Member, Board of Revenue.

The issues of sanctioning of inheritance mutation of issueless Muhammad Asghar and Nasreen Akhter (sibling) were consolidated at the level of higher forum of revenue hierarchy and the Member, Board of Revenue, Punjab vide consolidated order dated 08.11.2023 dismissed the aforesaid four revision petitions of petitioners. Hence, these writ petitions.

1. Arguments heard. Record perused.

2. The relationship between the parties is admitted. Nazar Muhammad and Umar Farooq sons of Muhammad Ayub son of Muhammad Sher were real paternal cousins of deceased issuless Muhammad Asghar and Mst. Nasreen Akhtar (siblings) progeny of Muhammad Shafi son of Muhammad Sher. The controversy among the parties to the lis is centered around "as to whether the real paternal cousins of issueless deceased Muhammad Asghar and Mst. Nasreen Akhtar would inherit from their estate as residuary or otherwise?

3. A definite and elaborate resolve is provided in this regard in Holy Quran and Sunnah and law. Islam, being the complete code of life, provide elaborate principles regarding inheritance of a deceased Muslim and the shares of the heirs of a deceased have been conclusively determined in Holy Quran and Sunnah. With regard to the distribution of estate left by a deceased Muslim, Allah Ta'la has ordered in Verse No.33 Surah-i-Nissa of Holy Quran, Urdu vernacular whereof is as under: