PCRLJ 2000 Judgments - Pakistan Legal Archive

Courts in this Volume

Federal Shariat Court
Karachi High Court Sindh
Lahore High Court Lahore
Peshawar High Court
Quetta High Court Balochistan
Supreme Court Azad Kashmir

Rasul Bux Palijo for Appellants.

Mrs. Qamur-un-Nisa for the State.

Date of hearing: 16th April, 1999.

PCRLJ 2000 FEDERAL SHARIAT COURT 374 #

2000 P Cr. L J 374

[Federal Shariat Court]

Before Abdul Waheed Siddiqui, J

MUHAMMAD IBRAHIM and another---Appellants

versus

THE STATE---Respondent

Criminal Appeals Nos. 175/I and 188/1 of 1998, decided on 3rd February, 1999

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

----Art. 4---Criminal Procedure Code (V of 1898), S.103---Recovery proceedings---Mandatory provisions of S.103, Cr.P.C.---Applicability--Recovery of 20 kgs. of wet opium---Raid was conducted on the basis of a spy information at the place of recovery---Place was a dairy surrounded by houses---None from the private persons was asked to become a witness---No reason for not joining at least two respectable inhabitants of the locality was shown by the prosecution---Effect---Violation of mandates of S.103, Cr.P.C., in such a raid had eroded the basis of veracity of the witnesses of recovery who were neither independent nor respectable inhabitants of the locality---Where the principles of criminal jurisprudence was ignored, evidence on record could not inspire confidence---Prosecution failed to prove its case beyond reasonable doubt---Accused was acquitted in circumstances.

1998 PCr.LJ 1293; PLD 1997 SC 408; 1997 SCMR 1692 and PLD 1977 SC 273 ref.

Syed Iftikhar Hussain Gilani and Muhammad Munir Peracha for Appellants.

Qari Abdul Rashid for the State.

Date of hearing: 3rd February, 1999.

PCRLJ 2000 FEDERAL SHARIAT COURT 447 #

2000 P Cr. L J 447

[Federal Shariat Court]

Before Abdul Waheed Siddiqui, J

KHAN ZAMAN---Appellant

versus

THE STATE---Respondent'

Criminal Appeal No. 187/1 of 1998, decided on 22nd January, 1999.

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

----Art. 4---Appreciation.of evidence---Entire proceedings were carried out by Crime Investigation Agency (C.I.A.) Staff---Samples were sent to Chemical Examiner with unexplained delay---Case property was not produced in the Trial Court---Material discrepancies were found amongst the prosecution witnesses---Prosecution failed to prove the guilt of the accused beyond reasonable doubt---Proceedings were, thus, vitiated ab initio---Order of Trial Court was set aside in circumstances.

PLD 1997 SC 408 and 1995 MLD 1114 ref, Fazal-ur-Rehman Rana for Appellant

Aziz-ur-Rehman for the State.

Date of hearing: 22nd January, 1999.

PCRLJ 2000 FEDERAL SHARIAT COURT 534 #

2000 P Cr. L J 534

[Federal Shariat Court]

Before Mian Mehboob Ahmed, CJ and Ch. Ejaz Yousaf, J

MAHAZULLA---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.5/I of 1996, decided on 28th April, 1999.

(a) Criminal trial---

----Conviction---Accused charged for a minor offence could not be convicted for a major offence.

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

----Ss. 237 & 236---Penal Code (XLV of 1860), S-363---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.14---Conviction--Accused was charged under S.363, P.P.C. but had been convicted under S.14, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which had provided major penalty---Validity---Section 237, Cr.P.C. was an exception to the general rule that no person could be convicted for an offence for which he was not charged---Section 237, Cr.P.C. must be construed strictly and applied in those cases only where either offences allegedly committed were cognate when it was doubtful as to what offence was made out of the act or acts allegedly committed by the accused---Accused charged for a minor offence could not be convicted for a major offence---Application of S.237, Cr.P.C. which was controlled by S.236, Cr.P.C. was limited to those cases only which fell within the purview of S.236, Cr.P.C.---Where, at time of framing of the charge, it was ascertainable from the perusal of evidence produced by prosecution as to what offence was prima facie made out, S.237, Cr.P.C. would have no application, and accused must be charged for particular offence, ascertainable from facts of the case.

----Ss. 237 & 236---Penal Code (XLV of 1860), S.363---Offence of Zina (Enforcement of Hudood)' Ordinance (VII of 1979), S.14---Conviction--Accused was charged for offence of kidnapping under S.363, P.P.C. but was convicted for offence of buying or hiring victim for purpose of prostitution under S.14, Offence of Zina (Enforcement of Hudood) Ordinance, 1979--Validity---Accused on charge of one particular offence could not be convicted for a distinct offence especially when it fell within a different penal statute.

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

----Ss. 190 & 265-D---Criminal trial---Duty of Court---Court, while dealing with case, had to take cognizance of the "offences" and not the "offenders"--If record indicated that there were some other offenders as well, Court, while acting under S.190 or 265-D, Cr-P.C. or thereafter even, should have initiated proceedings against them.

Munir Elahi Qureshi for Appellant.

Nasrullah Achakzai for the State

Date of hearing: 28th April. 1999.

PCRLJ 2000 FEDERAL SHARIAT COURT 553 #

2000 P Cr. L J 553

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan, Muhammad Khiyar Khan and Ch. Ejaz Yousaf, JJ

BAZ MUHAMMAD ---Petitioner

versus

THE STATE---Respondent

Criminal Revision No.3/Q of 1999, decided on 30th June, 1999.

(a) Penal Code (XLV of 1860)-

----Ss. 302(b), 392 & 338-E---Constitution of Pakistan(1973), Art.203-DD---Compounding of offences---Subject to the provisions of S.345, Cr.P.C. as well as Chap.XVI of the Pakistan Penal Code, all the offences affecting the human body under the said chapter might be waived or compounded and S.302(b), P.P.C. under which the accused had been convicted was not an exception to the rule---Concept of waiving the right of Qisas or compounding the offence was not restricted only to the cases pending before the Court, but such provisions could be invoked at any time before execution of sentence and Court was always competent to entertain and give effect to the compromise between the parties even after decision of the case and would not be functus officio in matters of compromise--Deceased had been intentionally murdered by the accused in committing the offence of Harabah/robbery and the case could not be said to be not of Qatl-e-Amd---Impugned order of Sessions Court rejecting application of accused for the acceptance of compromise entered into by the accused and legal heirs of the deceased was consequently, set aside and the matter was remanded to the Trial Court for its decision afresh in accordance with law---Revision petition was allowed accordingly.

Sh. Muhammad Aslam v. Shaukat Ali alias Shauka and others 1997 SCMR 1307 and Nazak Hussain v. The State PLD 1996 SC 178 ref.

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

----S. 338-E---Waiver or compounding of offences---Questions relating to the waiver or compounding of offences, determination of---Guidelines for the benefit of citizens and Courts provided.

Following are the guidelines for subordinate Courts and citizens with regard to waiver or compounding of offences:--

(i) in case of Qatl-e-Amd, if the right of Qisas is waived without any compensation, or compromise is arrived at between the parties i.e. accused and the adult legal heirs of the deceased, during the pendency of trial, the application for permission to compound the offence shall be made before the trial Court who shall determine all questions relating to waiver or compounding of an offence or awarding punishment under section 310, P. P. C.

(ii) In case of Qatl-e-Amd, if the right of Qisas is waived without any compensation or the legal heirs of the deceased compound their right of Qisas within the meanings of sections 309 and 310, P.P.C., during the pendency of appeal, applications for permission to compound the offence shall be made before the Appellate Court, who shall determine all questions relating to waiver or compounding of an offence or awarding punishment under section 310, P.P.C.

(iii) Under section 338-E(1), P.P.C., subject to the provisions of Chapter XLV and section 345 of the Code of Criminal Procedure, all offences under Chapter XLV, P.P.C. relating to homicide and hurt may be waived or compounded and the provisions of sections 309 and 310, P.P.C. shall, mutatis mutandis, apply to the waiver or compounding of such offences. So, if any offence under Chapter XLV affecting the human body is waived or compounded after the decision by the trial Court or the decision of appeal, if any, an application for permission to waive or compound the offence shall lie before the trial Court which shall determine all questions relating to the waiver or compounding of an offence or awarding of punishment under section 310, P.P.C., and if the trial Court is convinced that the waiver of right of Qisas or compounding of an offence punishable under Chapter XLV is genuine and in order, it shall acquit the accused.

(iv) If a question arises as to whether any person is or is not the legal heir of the deceased, such question shall be determined by the Court competent to receive application on the basis of waiver or compromise between the parties.

(v) For the purpose of determination of questions relating to the waiver or compounding of an offence the accused and the legal heirs of the deceased shall be treated parties to the proceedings under section 338-E(1), P.P.C.

Concept of waiving the right of Qisas or compounding the offences is not restricted only to the cases pending before the Court, but these provisions can be invoked at any time before execution of sentence and a! detailed above, Court is always competent to entertain and give effect to the compromise between the parties even after decision of the case and would nor be functus officio in matters of compromise.

Nazak Hussain v. The State PLD 1996 SC 178 ref:

Salahuddin Mengal for Petitioner.

Qari Abdul Rasheed for the State.

Date of hearing: 30th June, 1999.

PCRLJ 2000 FEDERAL SHARIAT COURT 774 #

2000 P Cr. L J 774

[Federal Shariat Court]

Before Abdul Waheed Siddiqui, J

MUHAMMAD ALI alias MAMOON and 2 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.57/K of 1998, decided on 23rd November, 1999.

Penal Code (XLV of 1860)---

----S. 392---Appreciation of evidence---Delay of four days in recording the statements of the witnesses under S.161, Cr.P.C. was not explained by the prosecution---Complainant and the recovery witnesses had not supported the prosecution version and they had been declared hostile ---Mashirs of identification parade had also resiled from their previous statements and the Trial Court had not believed the recoveries---Accused were given the benefit of doubt and acquitted in circumstances.

PLD 1988 Kar. 539; 1993 SCMR 585; 1985 SCMR 721; 1988 SCMR 557 and 1997 SCMR 971 ref.

Malik Rab Nawaz Noon for Appellants.

Qamur Nisa for the State.

Date of hearing: 15th November, 1999.

PCRLJ 2000 FEDERAL SHARIAT COURT 796 #

2000 P Cr. L J 796

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan, Muhammad Khiyar Khan and Ch. Ejaz Yousaf, JJ

PIRAK alias WADERA---Appellant

versus

THE STATE --- Respoodei4t

Criminal Appeal No.7/I and Criminal Murder Reference No.i/I of 1999, decided on 5th October, 1999.

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

----S. 302---Qanun-e-Shahadat (10 of 1984), Art.22---Identification parade--Holding of identification parade is essential only in cases in which a witness merely gets a momentary glimpse of the accused and claims to be able to identify him---If the accused is known to the witness previously or the witness has met the accused several times, identification parade of the accused can be dispensed with, because in such cases the witness can identify the accused even in the Court.

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

----S. 302---Appreciation of evidence---Identification parade ten immaterial---Where identity Qf accused is proved by other convincing evidence direct or circumstantial, absence of identification test would be immaterial.

Muhammad Afzal and another v. State 1982 SCMR 129 ref.

----S. 302---Appreciation of evidence ---Eye7witnesses had proved the participation of accused in the crime which was corroborated by the dying declaration of the deceased who had also identified the accused ---Eyewitnesses had even correctly identified the accused in the Court to be one of the culprits attributing specific role to him which stood proved at the trial--Dying declaration being in harmony with other evidence, could be given due weight even if not made in immediate apprehension of death and the lgt incriminating statement made by the deceased could be treated as dying declaration---Conviction of accused was maintained in circumstances--Record, however, did not show if the accused had confined the deceased in the cave with an intention to kill him or to gain some time for disposal of the robbed property---Death sentence of accused was. altered to imprisonment for life in circumstances.

State v. Farman Hussain and others PLD 1995 SC 1; Muhammad Bashir v. State PLD 1958 SC 1; Muhammad Afzal and another v. State 1982 SCMR 129 and Shamim Akhtar v. Faiz Akhtar and 2 others PLD 1992 SC 211 ref.

Muhammad Aslam Uns for Appellant.

Qari Abdur Rashid for the State.

Dates of hearing: 4th and 5th October, 1999.

PCRLJ 2000 FEDERAL SHARIAT COURT 815 #

2000 P Cr. L J 815

[Federal Shariat Court]

Before Mian Mehboob Ahmed, C.J. and Ch. Ejaz Yousaf, J .

ALAM ZEB and others---Appellants

versus

THE STATE and others---Respondents

Criminal Appeal No.75/1, Jail criminal Appeal No.95/1 and Crimina Revision No. 13/1 of 1999, decided on 51h January, 2000.

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

----S.'10(2)---Appreciation of evidence---Female accused, although had take; the stand before the Trial Court that she was subjected to Zina-bil-Jabr by her co-accused, yet in the appeal as well as before the Federal Shariat Court she pleaded that she was the legally-wedded wife of co-accused---Stand now . taken by female accused was also admitted by male accused to be correct and he also owned the minor girl born to female accused as his daughter--Apparently nothing was available on record to disbelieve the said statements made by the accused---Female accused had resiled from her earlier statement made before Trial Court and thereafter, nothing was left on the record to substantiate the charge---In the absence of substantive or direct evidence, conviction could not be based on any other type of evidence, howsoever, convincing the same might be---Accused were acquitted in circumstances.

PLD 1982 FSC 43; PLD 1983 FSC 483; Kitabul Fiqh, Vol. V, p.169; PLD 1984 .SC 95;, 1983 SCMR 942; 1991 SCMR 643 and Qalb Abbas alias Nahola v. The State 1997 SCMR 290 ref.

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

----S. 10(2)---Appreciation of evidence---Unless substantive or direct evidence is available, conviction cannot be based on any other type of evidence, howsoever, convincing it may be.

1991 SCMR 643 and Qalb Abbas alias Nahola v. The State 1997 SCMR 290 ref.

Muhammad Aslam Khaki for Appellant (in Criminal Appeal No.75/I of 1999).

Muhammad Aslam Uns for Petitioners (in Criminal Appeal No. 13/1 of 1999).

Fazal-ur-Rehman Rana for Respondents (in all Cases).

Date of hearing: 18.th November, 1999.

PCRLJ 2000 FEDERAL SHARIAT COURT 850 #

2000 P Cr. L J 850

[Federal Shariat Court]

Before Muhammad Khiyar Khan and Ch. Ejaz Yousaf, JJ

SAID BAHADUR SHAH and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.85/I of 1999, decided on 22nd October, 1999.

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

----Ss. 237 & 236---Section 237, Cr.P.C. is controlled by S.236-, Cr.P.C. and, therefore, application thereof is limited to those cases only which fall within the provision of S.236, Cr.P.C.

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

----Ss. 10(3) & 14---Accused having been charged for the offence of Zina only could not be convicted for the offence of buying or hiring the victim for the purpose of prostitution without a formal charge because, -firstly the offences under Ss.10(3) & 14 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. are distinct offences which fall within two different penal provisions and-secondly both the sections would require different facts to be given prominence---Impugned judgment passed by Sessions Court was consequently set aside and the case was remanded to Trial Court for fresh trial and decision in accordance with law.

Shama alias Jinnat Ali v. The State PLD 1966 Dacca 269; Fateh Muhammad v. The State PLD 1961 Lah. 212; Grandhe Sarabhayya and others' case AIR 1943 Mad. 408; Umadasi Dasi v. The King-Emperor 28 CWN 1046; AIR 1924 Cal. 1031 and Lai Khan v. Karim Khan and others 71 PR 1866 ref.

Mian Muhammad Murd Kakakhel for Appellants Fazal-ur-Rehman Rana for the State.

Date of hearing: 19th October, 1999.

PCRLJ 2000 FEDERAL SHARIAT COURT 1054 #

2000 P Cr. L J 1054

[Federal Shariat Court]

Before Fazal Ilahi Khan, C.J. , and Dr. Fida Muhammad Khan, J

Mst. KALSOOM --- Appellant

versus

BASHIR AHMAD and 2 others---Respondents

Criminal Appeal No.89/L of 1999, decided on l0ih February, 2000. .

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

----S. 265-K---Power of Court to acquit accused at any stage---Discretionary . powers under S.265-K, Cr.P.C. are to be exercised sparingly and judiciously and in no way arbitrarily and capriciously.

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

----S. 10---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Trial Court in acquitting the accused under S.265-K, Cr.P.C. had proceeded to exercise its powers hastily without taking into consideration all the facts and circumstances brought by the evidence on record---Premature to determine the guilt or innocence of accused in the presence of depositions of three eye-witnesses and positive Chemical Examiner's Report---One accused had been apprehended on the spot and duly produced before the police at the time of registration of F.I.R.---Eye-witnesses had made consistent statements---Even the statements of accused were not yet brought on record---Impugned order in the circumstances was perverse, arbitrary and shocking and the same was consequently set aside---Case was remanded to the Trial Court for decision afresh after giving full opportunity to the parties to produce their evidence.

Iftikhar Shah for Appellant.

Asif Mehmood Chughtai for Respondents.

Imtiaz Ahmad Chaudhry for the State.

Date of hearing: 10th February, 2000.

PCRLJ 2000 FEDERAL SHARIAT COURT 1176 #

2000 P Cr. L J 1176

[Federal Shariat Court]

Before Ali Muhammad Baloch, J

NIZAMUDDIN --- Appellant

versus

THE STATE---Respondent

Criminal Appeal No.55/K of 1998, decided on 25th January, 2000.

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

----S. 10(3)---Penal Code (XLV of 1860), S.354 --- Appreciation of evidence---Prosecution evidence furnished by the victim, her sister and her father had only caused 'suspicion about the commission of the offence of Zina-bil-Jabr and had not proved the same beyond reasonable doubt--Evidence had proved beyond doubt that the accused had assaulted or used criminal force against the victim with an intention to outrage her modesty--Conviction. and sentence of accused under S.10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, were consequently set aside and instead he was convicted under S.354, P.P.C. and sentenced to the imprisonment already undergone by him with fine---Sentence of whipping having been abolished, sentence of thirty stripes awarded to accused was set aside.

Shahadat Awan for Appellant. Habib-ur-Rashid for the State.

Date of hearing: 25th January, 2000.

PCRLJ 2000 FEDERAL SHARIAT COURT 1615 #

2000 P Cr. L J 1615

[Federal Shariat Court]

Before Sardar Muhammad Dogar, J

BASHIR MASIH alias SHAUKAT and another --- Appellants

versus

THE STATE---Respondent

Criminal Appeal No. 193/L of 1998, decided on 6th April, 1999.

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

----S. 10/16---Appreciation of evidence---Contradiction in statements of complainant made in F.I.R. and at trial---Prosecution had not produced any witness at trial to state that he had seen both the accused committing Zina---Prosecution witnesses could not fortify case of prosecution as their statements were also at variance on certain points---Both accused who originally were Christians, had pleaded .that after embracing Islam they had contracted marriage ---Nikakhawan who appeared as defence witness had proved that both the accused had embraced Islam and that he had performed their Nikah in presence of some of relatives of accused---Finding of Trial Court that plea of embracing Islam could not be accepted as accused had failed to produce any evidence in that respect, was repelled because no such proof was required unless somebody would make allegation that declaration made by accused was false ---Nikahnama produced by accused had not been challenged by prosecution before proper forum and thus, could not be discarded---Prosecution having not been able to bring home charges against accused beyond reasonable shadow of doubt, conviction and sentence awarded to accused, were set aside and they were acquitted of the charge.

Rana M. Azhar Khan for Appellants.

Muhammad Aslam Malik for the State.

Date of hearing: 6th April, 1999.

PCRLJ 2000 FEDERAL SHARIAT COURT 1756 #

2000 P Cr. L J 1756

[Federal Shariat Court]

Before Sardar Muhammad Dogar and Khan Riaz-ud-Din Ahmad, JJ

MUHAMMAD ASHRAF -Appellant

versus

MUHAMMAD IRSHAD and another---Respondents

Criminal Appeal NO. 11 /L of 2000,. decided on 19th April, 2000.

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

----S. 10---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Prosecution witnesses named as eye-witnesses of occurrence having been given up; were not produced before Trial Court, on which Trial Court had rightly presumed that either said witnesses had not seen the occurrence or no occurrence had taken place---Trial Court disbelieved complainant observing that complainant could not hear-alarm of victim while he was in his house at a distance of two acres from the place of occurrence---Trial Court discarded testimony 'of alleged victim girl on two grounds, firstly that her statement that she had suffered an injury on mouth during occurrence was contradictory to her statement made by her before police during investigation, secondly that she being unmarried girl should have been "virgin" but lady doctor who had medically examined her, had not found her to be virgin---Lady doctor also did not find any fresh tears on vagina of victim and her Shalwar was also not proved to be stained with semen---Accused, according to complainant, had fired 2/3 shots, but neither police had found empties lying at the, spot nor complainant had produced those empties before police during investigation--Complainant/appellant having failed to show that findings of Trial Court were incorrect or contradictory to the facts on record, appeal against order of acquittal passed : by Trial Court, was dismissed, in circumstances.

Shahid Hussain Kadri for Appellant.

Date of hearing: 19th April, 2000.

PCRLJ 2000 FEDERAL SHARIAT COURT 1770 #

2000 P Cr. L J 1770

[Federal Shariat Court]

Before Sardar Muhammad Dogar and Ali Muhammad Baloch, JJ

MUHAMMAD ALI ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 186/L of 1999, decided on 30th March. 2000.

Penal Code (XLV of 1860)---

----S. 377---Appreciation of evidence---Occurrence was reported promptly and no effort was made to rope in any innocent person---Prosecution witnesses, though were cross-examined at length, but no question was put to them that they had any direct animosity or differences with accused or his family---Nothing was brought on record- to consider that prosecution witnesses, who had deposed ocular account, were not respectable persons and were prone to tell lies---Medical evidence also had lent full support to ocular account---Accused had not challenged his conviction, but had prayed for reduction in sentence---Conviction of accused was maintained, but considering age of accused which at time of occurrence was slightly less than seventeen years and fact that sufficient period had already passed since occurrence had taken place, sentence of life imprisonment was reduced to sentence of six years---Sentence of fine which was excessive was also reduced accordingly.

M.A. Zafar for Appellant.

Mian Abdul Qayyum Anjum for the State.

Date of hearing: 30th March, 2000.

PCRLJ 2000 FEDERAL SHARIAT COURT 1910 #

2000 P Cr. L J 1910

[Federal Shariat Court]

Before Ali Muhammad Baloch, J

MUHKUMUDDIN---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.45/K of 1999, decided on 11th May, 2000.

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

----S. 21---Appreciation of evidence---"Rassagiri" or "Patharidari"---Theft of cattle---None of the prosecution witnesses had stated a word of theft of cattle .against the .accused---Trial Court convicted the accused on the basis of his involvement in two cases one under S.13-D of West Pakistan Arms Ordinance, 1965 and the other under S.110, Cr.P.C.---Validity---Where the prosecution -evidence did not attract the provisions of S.12(2) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, charge against the accused. was misplaced and the evidence on which the conviction had been based 'by the Trial Court was irrelevant---Police had implicated the accused for his involvement in previous two cases, without any effort on the part of the police to have collected fresh evidence of Rassagiri or Patharidari against the accused---Conviction and sentence passed by Trial Court were set aside in circumstances.

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

----S.21---Expression "engaged in the theft of cattle"---Proof---Scope---Such fact could be proved by producing record of theft of cattle by examining witnesses whose cattle were stolen.

----S. 21---Words "Rassagiri" and "Patharidari"---Connotation---Words necessarily relate to the theft of cattle.

Ali Nawaz Ghangro for Appellant.

Habib-ur-Rashid for the State.

Date of hearing: loch May, 2000

PCRLJ 2000 FEDERAL SHARIAT COURT 1975 #

2000 P Cr. L J 1975

[Federal Shariat Court]

Before Sardar Muhammad Dogar and Ch. Ejaz Yousaf, JJ

RASOOL BAKHSH---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.50/Q of 1997, decided on 3rd May, 2000.

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

----Art. 3(2)---Appreciation of evidence---Prosecution is not bound to examine each and every witness of the crime and neither adverse inference can be drawn on account of non-production of some or any of the prosecution witnesses nor can it, in .any manner, affect the credibility of those witnesses who have been examined.

Muhammad Ashraf v. The State 2000 SCMR 741; Muhammad Akhtar Ali v. The State 2000 SCMR 727; Saeed Akhtar v. The State 2000 SCMR 383; Muhammad Ahmad and another v. The State 1997 SCMR 89; Ziaullah v. The State 1993 SCMR 155; Zar Bahadur v. The State 1978 SCMR 136; The State v. Mushtaq Ahmad PLD 1973 SC 418; Allah Yar v. Crown PLD 1952 FC 148 and Malik Khan v. King-Emperor 72 IA 305 (PC) ref.

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

----Art. 3(2)---Not the number of witnesses but the quality and credibility of the evidence is to be considered---Although statement of a solitary witness is not considered enough to base conviction thereon, yet generally where a witness is found completely independent and wholly reliable, his testimony ipso facto is believed and corroboration thereof is sought for as a matter of prudence only.

Gulistan and others v. The State 1995 SCMR 1789; Allah Bakhsh v. Shaunsi and another PLD 1980 SC 225; Bacha Said v. The State PLD 1978 SC 102; Ramzan and another v. The State 1973 SCMR 245; Muhammad Khan v. Ahmad and 2 others 1972 SCMR 620; Shah Wali v. Crown 1971 SCMR 273; Muhammad Ashraf v. The State 1971 SCMR 530; Muhammad Siddique alias Ashraf and 3 others v. The State 1971 SCMR 659; Mali v. The State 1969 SCMR 76 and Ali Ahmad alias Ali Ahmad Mia v. The State PLD 1962 SC 102 ref.

----Art. 3(2)---Transportation or possession of narcotics being crimes against the society, technicalities, procedural or otherwise, should not be ,given serious thought.

Munawar Hussain and others v. The State 1993 SCMR 789 ref.

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

----Art. 3(2)---Appreciation of evidence---Transporting of huge quantity of opium alongwith arms and ammunition---Complainant had given an explicit testimony about the occurrence---Such testimony was corroborated by the recovery of the contraband from the possession of the accused who was arrested from the place of occurrence---Report of Chemical Examiner was positive---Trial Court awarded a sentence of imprisonment for fifteen years, fine and penalty of stripes---Validity---Neither enmity was alleged against the complainant, nor it was pleaded that the Levies Authorities had any animus or ill-will towards the accused---Such a huge quantity of narcotics as well as the arms and ammunition, which was valued in lacs of rupees, could not be implanted just to implicate the accused---Trial Court had rightly convicted the accused for the offence in circumstances.

(e) Criminal trial---

----Witness---Not the number of witnesses but the quality and credibility of the evidence is to be considered---Although statement of a solitary witness is not considered enough to base conviction thereon, yet generally where a witness is found completely independent and wholly reliable, his testimony ipso facto is believed and corroboration thereof is sought for as a matter of prudence only.

Raja Muhammad Afsar for Appellant.

Ziaullah Khan for the State.

Date of hearing: 3rd May, 2000.

PCRLJ 2000 FEDERAL SHARIAT COURT 1989 #

2000 P Cr. L J 1989

[Federal Shariat Court]

Before Ali Muhammad Baloch, J

MUHAMMAD BAKHSH and 3 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.74/K of 1999, decided on 14th March, 2000.

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

----Ss. 11 & 16---Appreciation of evidence---Failure to produce abductee in the Court---Wife of complainant was allegedly taken away forcefully by the accused---Evidence of the villagers or other circumstantial evidence could be made available which was neither collected by the police during investigation nor was produced in the Trial Court in support of the prosecution case--Effect---Where the abductee was neither recovered by the police from any place nor she was produced in the Trial Court nor any effort from the side of prosecution was made to produce her in the Court, conviction imposed by '"Trial Court could not be sustained---Counsel for the State did not support ~he judgment of the Trial Court and contended that the accused persons reserved to be given benefit of doubt---Conviction and sentence passed by Trial Court were set aside, in circumstances.

1996 PCr.LJ 656 and 1985 PCr.LJ 142 ref.

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

----Ss. 11 & 16---Conviction, both under Ss. 11 & 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was not possible as ingredients of both sections did not overlap---Conviction could either be under S.11 or S.16 of the Ordinance.

1985 PCr.LJ 142 ref.

Abdul Rahim Kazi for Appellants.

Habib-ur-Rashid for the State.

Date of hearing: 14th March, 2000.

PCRLJ 2000 FEDERAL SHARIAT COURT 2046 #

2000 P Cr. L J 2046

2000 P Cr. L J 69

[Karachi]

Before Muhammad Roshan Essani, J

RAZGHAN and 12 others‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No.365 of 1998, decided on 19th March,. 1999.

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

‑‑‑‑Ss. 107/117/151, 112, 113 & 561‑A‑‑‑Quashing of proceedings‑‑Apprehension of breach of peace‑‑‑Accused persons were produced before Sub Division Magistrate under S.107/117/151, Cr.P.C. for apprehension of breach of peace‑‑‑Sub‑Divisional Magistrate neither passed order under S.112, Cr.P.C. nor compliance of S.113, Cr.P.C. was made and accused persons were remanded to custody‑‑‑Validity‑‑‑Remand of accused was illegal and was not warranted by law‑‑‑Order passed by Sub‑Divisional Magistrate was passed in a mechanical manner without applying judicial mind‑‑‑Order was passed for a term of one year which had expired‑‑‑Proceedings under S.107/117/151, Cr.P.C. pending before Sub‑Divisional Magistrate were ordered to be quashed in circumstances.

The State v. Shafi Muhammad and others PLD 1961 (W.P.) Kar. 118;

Nur Nabi v. The State 1968 PCr.LJ 131; Miral v. The State 1978 PCr.LT 161; N. Reemes and 2 others v. The State 1980 PCr.LJ 126 and Muhammad Irfan Khan v. Mst. Khalida Parveen and 3 others 1999 MI.D 419 ref.

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

‑‑‑‑S. 107‑‑‑Apprehension of breach of peace‑‑‑Initiation of proceedings‑‑Scope‑‑‑Mere fact that enmity or ill‑feeling existed between the two parties was not sufficient to warrant action under S.107, Cr.P.C.

Khawaja Shamsul Islam for Applicants.

Sharafat Ali Khan for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 92 #

2000 P Cr. L J 92.

[Karachi]

Before Muhammad Roshan Essani, J

ABDUL HANNAN‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 112 of 1999, decided on 26th February, 1999.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.452/353/324/34‑‑‑Bail‑‑‑Accused _ during broad daylight had barged into the house of the complainant alongwith his companions armed with lethal weapons in order to cause hurt‑‑‑Accused was apprehended at the spot after an encounter with the police‑‑‑Four private Mohallah persons in their statements under S.161, Cr.P.C. had fully implicated the accused‑‑‑Record did not show any enmity between the prosecution witnesses and the accused‑‑‑Reasonable grounds existed to believe the accused being guilty of the offence charged with which was covered by the prohibition contained in S.497(1), Cr.P.C.‑‑‑Bail was‑declined to accused in circumstances.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.452/353/324/34‑‑‑Bail‑‑‑Assessment of evidence‑‑‑Deeper appreciation or evaluation of material on record at bail stage is not permissible for the grant or refusal of bail.

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.452/353/324/34‑‑‑Bail‑‑‑Bail in non-bailable offence‑‑‑Grant of bail in non‑bailable offence is not a right but a concession/grace.

Syed Saeed Hassan Zaidi for Applicant. Muhammad Saleh Punhwar for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 105 #

2000 P Cr. L 1 105

[Karachi]

Before Muhammad Roshan Essani. J

TUBBASAM AHMED QURESHI‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.88 of 1999, decided on 17th March, 1999.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.420/468/470/471‑‑‑Bail‑‑‑Accused to whom complainant had entrusted his business concern had committed breach of trust being a servant‑‑‑Accused had embezzled and misappropriated his employer's money to the tune of one crore rupees‑‑‑Case against accused was neither an outcome of enmity. nor his involvement therein was based on mala fides‑‑‑Accused had prepared forged receipts, sold the cars and deposited amount in his personal account‑‑‑Cheques issued by accused were dishonoured and relevant cheque book had been recovered from his possession‑‑‑Case of accused was hit by the prohibitory clause of S.497(1), Cr.P.C.‑‑‑Bail was refused to accused in circumstances.

M. Afzal v. The State 1994 PCr.LJ 994 and 1994 PCr.U 1293 ref.

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

‑‑‑‑S. 497‑‑‑Bail‑‑‑Cases not falling within prohibitory clause of S.497, Cr.P.C.‑‑‑Grant of bail in each and every case which is not punishable with death. imprisonment for life or ten years' R.I. without considering the gravity of offence, is not a rule of law‑‑‑Court in cases not falling within the prohibitory clause can refuse bail if after making tentative assessment of evidence it finds a prima facie case having been made out against the accused.

Shakeel Ahmed for Applicant.

Muhammad Saleh Punhwar for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 116 #

2000 P Cr. L J 116

[Karachi]

Before Muhammad Roshan Essani, J

SHAKEEL AHMAD---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.65 of 1999, decided on 22nd February, 1999

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

----S. 497---Penal Code (XLV of 1860), S.324/34---Bail---Accused, after having obtained bail from Sessions Court, did not appear in the Court and became an absconder---Unexplained abscondence of accused for a long period had disentitled him to the concession of bail because by such conduct he had thwarted the course of justice---Accused had misused the concession of bail by way of abscondence and he was refused bail in circumstances.

Sher Ali alias Sheri v. The State 1998 SCMR 190; Awal Gul v. Zawar Khan and others PLD 1985 SC 402; Akhtar Ali v. Azhar Ali 1985 SCMR 1166 and Rao Qadeer Khan v. The State PLD 1981 SC 93 ref.

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

----S. 497---Penal Code (XLV of 1860), S.324/34---Bail---Abscondence, effect of---Fugitive from law loses some of the normal rights available to him as accused under the procedural as well as substantive law ---Abscondence disentitled an accused to concession of bail even if the case does not fall within the prohibitory clause of S.497(1), Cr.P.C.

Sher Ali alias Sheri v. The State 1998 SCMR 190; Awal Gul v. Zawar Khan and others PLD 1985 SC 402; Akhtar Ali v. Azhar Ali 1985 SCMR 1166 and Rao Qadeer Khan v. The State PLD 1981 SC 93 ref. _

I.I. Suleman for Applicant.

Sharaft Ali for A.-G. for the State

PCRLJ 2000 KARACHI HIGH COURT SINDH 119 #

2000 P Cr. L J 119

[Karachi]

Before Abdul Ghani Shaikh, J

AIJAZ ALI MEMON --- Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.34 of 1999, decided on 25th February, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.7/10/11---Bail, grant of---Accused was minor and on the day of incident his age was below 14 years---After his arrest accused was not referred for medical check-up in' order to certify if he was capable of committing the sexual offence--Despite having remained on bail for one year, accused had not misused the concession---Report of Medical Board about the victim girl had cast doubt on the first medical report given by the Lady Doctor---Maximum punishment which could be awarded to the accused under the law was five years' imprisonment---Accused was admitted to bail in circumstances.

Zulfiqar Ali alias Kaka v. The State 1986 PCr.LJ 1013; Muhammad Ismail v. The State PLD 1986 Pesh. 167 and Ghulam Qadir v. The State Criminal Bail Application No. 125 of 1997 ref.

Muhammad Ayaz Soomro for Applicant. Rashid Ali G. Shaikh for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 126 #

2000 P Cr. L J 126

[Karachi]

Before Amanullah Abbasi, J

BASIT ANSARI---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 1059 of 1998, decided on 9th October, 1998.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.380---Bail, grant of---Accused was a peon of Judicial Magistrate and the case property was stolen surety documents--Offence was not punishable with death, life imprisonment or ten years and the co-accused arrested by the police was let off---Biased view could not be taken because Court property was stolen---Bail was allowed accordingly.

Raja Sikandar Khan Yasir for Applicant. Habib Ahmed, A.A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 127 #

2000 P Cr. L J 127

[Karachi]

Before Ata-ur-Rehman and Rasheed A, Razvi, JJ

RAHIM alias MUHAMMAD RAHIM and another---Appellants

versus

THE STATE---Respondent

Criminal Appeals Nos.62 and 68 of 1995, decided on 10th December, 1998.

Penal Code (XLV of 1860)---

----S. 302/149---Appreciation of evidence---Ocular evidence was contradictory which had made the presence of eye-witnesses at the scene of occurrence doubtful---Foot print tracker had not prepared any record at the time of tracking the foot prints or at the time of identification test of the same and his evidence, therefore, could not be relied upon----Even otherwise foot print identification was a weak type of evidence---Complainant had not mentioned the description and features of the suspects in the F.I.R. which were not even easy to have been identified due to insufficient 'light---Accused appeared to have been shown to the witnesses by the police before holding of identification parade, authenticity of which was highly doubtful---Recovered weapons of offence were not sealed at the place of recovery by the police and the said recovery was open to doubt--Bullets which had caused the death of the deceased were not proved to have been fired from the recovered fire-arms---Ocular evidence discarded in respect of acquitted accused had been relied upon by Trial Court for conviction of accused which was a glaring inconsistency in the impugned judgment---Accused were acquitted on benefit of doubt in circumstances.

Fahimuddin v. The State 1996 PCr.LJ 727; Ashique Hussain v. The State 1993 SCMR 417; Mudasir v. The State 1996 SCMR 3; Guloo v. The State PLD 1988 Kar. 637; Lal Parsad v. The State PLD 1981 (SC) 142; Ghulam Rasool and others v. The State 198'8 SCMR 557; Kirir v. The State PLD 1996 Kar. 246; Muhammad v. The State 1974 PCr.LJ 433 and Meer Hassan and others v. The State 1997 MLD 1663 ref.

Allah Bachayo Soomro for Appellants (in Criminal Appeal No.62 of 1995).

Hidayatullah Ghulam Rabbani for Appellants (in Criminal Appeal No.68_ of 1995).

Mukhtar Ahmad Khanzada, A.A.-G. for the State. .

PCRLJ 2000 KARACHI HIGH COURT SINDH 143 #

2000 P Cr. L J 143

[Karachi]

Before Abdul Hameed Dogar, J

GHULAM MUSTAFA alias KHAWAND BUX---Applicant

versus

PINYAL and others---Respondents

Criminal Transfer Application No. 17 of 1998, decided on 9th December, 1998

Criminal Procedure Code (V of 1898)---

----S. 526---Penal Code (XLV of 1860), S.302/34---Transfer of case---Case was sought to be transferred in the previous two transfer applications and the present third application solely on the ground that it was not convenient to the complainant and his witnesses to attend the Trial Court, which was a frivolous ground without any supporting evidence---Even otherwise, mandatory provisions of S.526(6), Cr.P.C. of giving notice in writing of filing of such application together with copies of the grounds at least 24 hours prior to the hearing of the application, had not been complied with---Transfer application was dismissed being frivolous and vexatious with the direction to the applicant to pay Rs.400 as compensation to the respondents.

Rajib Ali Tunio for Applicant.

Ali Azhar Tunio, A.A. -G. for the State

PCRLJ 2000 KARACHI HIGH COURT SINDH 145 #

2000 P Cr. L J 145

[Karachi]

Before Ali Muhammad Baloch, J

WALI MUHAMMAD ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.359 of 1999, decided on 5th August, 1999.

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

----S. 497---Penal Code (XLV of 1860), Ss.324 & 109---Bail, grant of--Accused was father-in-law of the victim lady who was set on fire by sprinkling kerosine oil on her person at the hands of her husband/co-accused in the presence of the accused---Accused was specifically named by the victim in her statement recorded under 5.161, Cr.P.C.---Negative role of the accused made him liable to be an accomplice and it appeared that it -was with the connivance of and at the instigation of the accused that the co-accused ablazed the victim--Offence being punishable with imprisonment for ten years accused did not deserve any sympathy or leniency---Bail was refused in circumstances.

1994 SCM,R 2051 and 1995 SCMR 127 distinguished.

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

----Ss. 497 & 498---Bail, grant of---Every case has got its own circumstances and facts and the bail is granted under these particular circumstances and except broad principles laid down by the superior Courts.

Allah Bachayo Soomro for Applicant.

Mian Khan Malik, Addl. A.-G., Sindh for the State.

2000 P Cr. L J 203

[Karachi]

Before Ghulam Nabi Soomro, J

YOUSUF KHAN---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.714 of 1999, decided on 26th August, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.320/322/337-G---Bail, grant of--Punishment of payment of Diyat corresponding to sentence of imprisonment exceeding seven years or more---Offence under S.322, P.P.C. was though non-bailable, yet was not punishable with any period of imprisonment besides the payment of Diyat---No express provision of law existed to show that such punishment would attract the prohibitory clause of S.497, Cr.P.C.---Bail was allowed to accused accordingly.

1998 MLD 1537 fol.

Jarman Khattak for Applicant Jawed Akhtar for the State.

2000 P Cr. L J 239

[Karachi]

Before Abdul Hameed Dogar and Ghulam Nabi Soomro, JJ

DHANI BUX alias DHANOO and 2 others---Appellants

Versus

THE STATE---Respondent

Special Anti-Terrorism Jail Appeal No.25 and Special Anti-Terrorism Appeal No.27 of 1998, decided on 14th. May, 1999.

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

----Ss. 365-A & 395---Appreciation of evidence---Accused was named in the F.I.R. as the principal accused who had abducted the complainant and had demanded ransom of Rs.5,00,000 for his release from the prosecution witnesses---Accused had also robbed the complainant of his golden chains, Rs.500, original documents of his motorcycle and Identity Card--Complainant and prosecution witness had identified the accused being the resident of a nearby village who had demanded ransom for the release of the abductee---Accused had volunteered to produce the robbed articles which were recovered from his Autaq---Convictions of accused were upheld in circumstances-- -Complainant had come out of the clutches of the accused immediately after his abduction without any damage having been caused to him which was a mitigating circumstance for awarding lesser punishment---Death sentence awarded to accused under S.365-A, P.P.C. was reduced to imprisonment for life accordingly.

1985 SCMR 721; 1992 SCMR 2088; 1989 PCr.LJ 2227 and PLD 1995 SC 13 ref.

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

----Ss. 365-A & 395---Appreciation of evidence---Accused were not identified at the time of occurrence---Identification parade held 11 days after the arrest of accused without any explanation by the prosecution for such delay was not acceptable ---Particulars and denomination of the robbed amount having not been furnished in the F.I.R., recovery thereof had no legal value---Accused were neither nominated in the F.I.R., nor their features had been given by the complainant and other prosecution witnesses in their statements before the police, as such their subsequent picking up in the belated identification parade through the said witnesses was of no avail---No independent evidence was available to connect the accused with the crime---Accused were acquitted in circumstances.

Khalilur Rehman Abbasi, Muhammad Ashraf Kazi and Nuruddin Sarki for Appellants.

Syed Jalil A. Hashmi, Asstt. A.-G. for the State.

Dates of hearing: 13th and 14th May, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 253 #

2000 P Cr. L J 253

[Karachi]

Before Muhammad Roshan Essani, J

AMIN MAROON---Applicant

versus

THE STATE---Respondent

Criminal Bail Applications Nos.485. 457 and 464 or '999 decided on 4th June, 1999.

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

----S. 497(2)---Penal Code (XLV of 1860), S.409/420/468/471/109--Prevention of Corruption Act (II of 1947), S.5(2)---Bail---Accused being the last Officer to sign the reimbursement bills after the same having been verified by co-accused and signed by the Accountant, his case necessitated further enquiry as contemplated by S.497(2), Cr.P.C.---Co-accused with similar role had already been released on bail by High Court---Accused was also granted bail keeping in view the aforesaid circumstances and the rule of consistency.

1980 SCMR 142 ref.

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

----S. 497---Penal Code (XLV of 1860), S.409/420/468/471/109--Prevention of Corruption Act (II of 1947), S.5(2)---Bail---Accused had the primary responsibility to check and verify the signatures on reimbursement bills with the specimen signatures under his control and then forward the vouchers prepared by a clerk under his control to the Accountant for onward signature of Assistant Chief Accountant---Forged vouchers could not have been prepared if the accused had been vigilant---Bail was declined to accused circumstances.

----S. 497---Penal Code (XLV of 1860), S.409/420/468/471/109--Prevention of Corruption Act (II of 1947), S.5(2)---Bail---Accused being the Head Cashier ad allegedly made payments to persons without their proper identification --Being a Head Cashier, cash was under the control of accused and he had dominion over the same---Vouchers were bearing the signatures of accused in token of payment of cash to various persons---Absence of employee number and personal number of cash receiver on the vouchers presented to accused had, prima facie, shown his complicity in the commission of crime---Bail was refused to accused in circumstances.

Abdul Mujeeb Pirzada for Applicant (in Criminal Bail Application No.457 of 1999).

I.A. Hashmi for Applicant (in Criminal Bail Application No.464 of 1999).

A.Q. Halepota for Applicant (in Criminal Bail Application No.485 of 1999).

S. Mamnoon Hassan, Dy.A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 262 #

2000 P Cr. L J 262

[Karachi]

Before Muhammad Roshan Essani, J

JAWAID---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.336 of 1999, decided on 5th May, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.353/324---Bail---Accused having sustained fire-arm injuries in the occurrence, his participation in the commission of offence was confirmed---Weapon of offence had been recovered from the possession of accused who had been arrested on the spot---Merely because the offences with which the accused was charged were not punishable with death or imprisonment for life., was no ground for grant of bail---Evidence of policeman could not be ignored at such stage as he was as good a witness as any other person unless evidence was brought on record to disbelieve him---Reasonable grounds were available to believe the accused, prima facie, being guilty of the offence with which he was charged---Accused was disallowed bail in circumstances.

Haji Muhammad Abbas v. The State 1996 SCMR 1134; Wazir Zaman v. The State and another 1996 PCr.LJ 722; Nusrat Ali v. The State 1997 SCMR 876; Shaukat Hayat and others v. The State 1997 PCr.LJ 524; Abdul Ghaffar v. The State and another 1995 PCF.LJ 862; Muhammad Muzaffar v. The State 1995 PCr.LJ 1345 and Zulfiqar v. The State 1994 PCr.LJ 2285 ref.

Syed Qamar Ali-Jarchavi for Applicant.

Muhammad Saleh Punhwar for A.-G for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 292 #

2000 P Cr. L J 292

[Karachi]

Before Muhammad Roshan Essani, J

MASHOOQ ALI alias IQBAL---Appellant

versus

THE STATE---Respondent

Criminal Appeals Nos.37 of 1994 and 66 of 1993, decided on 11th May, 1999.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence ---F.I.R. had been promptly lodged by the complainant with all the details of the incident including the motive--Ocular testimony was consistent and unshaken ---Eye-witnesses though related to the deceased had no enmity with the accused and were natural witnesses of the occurrence---Crime empty secured from the place of incident was found to have been fired from the gun of the accused---Ocular evidence, thus, was corroborated by the circumstantial evidence of recovery of the gun and the positive report of the Ballistic Expert---Conviction and sentence of accused were upheld in circumstances.

Nisar Ahmed Bhatti for Appellant.

Rashid Ali G. Shaikh on behalf of A.-G. for the State.

Date of hearing: 28th January, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 299 #

2000 P Cr. L J 299

[Karachi]

Before Abdul Hameed Dogar and Ghulam Nabi Soomro, JJ

PAHLWAN and 2 others---Appellants

versus

THE STATE---Respondent

Special Anti-Terrorism Appeal No. 19 of 1998, decided on 25th March, 1999. .

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

----S. 365-A/149---Abduction---Evidence of abductee is material and conviction can be based upon the testimony of such abductee alone if the same inspires confidence.

Ali Dost v. The State 1994 PCr.LJ 950 rel.

(b) Anti-Terrorism Act (XXVH of 1997)---

----S. 25---Penal Code (XLV of 1860), S.365-A/149---Abduction--Appreciation of evidence---Accused persons were charged for abducting and receiving ransom---Natural and true account with regard to the act of abduction and payment o)' ransom was furnished by prosecution witnesses and such evidence was proved beyond any doubt---Recovery of empty shells of Kalashnikov from the place of occurrence further strengthened the factum of abduction at gun point---Accused persons could not prove their innocence after the prosecution had discharged its burden as the same was required under S.8, Anti-Terrorism Act, 1997---Sentence and conviction of imprisonment for life awarded by Trial Court was maintained.

1995 SCMR 127; 1996 SCMR 1553; 1993 SCMR 585; 1993 SCMR 550; 1995 PCr.LJ 1430 and 1995 PCr.LJ 1394 ref.

PLD 1988 Kar. 539; 1999 MLD 752; 1999 MLD 51; 1999 MLD 488; 1995 SCMR 1793; 1994 PCr.LJ 607 and 1994 PCr.LJ 950; 1994 PCr.LJ 950 and 1999 MLD 1460 rel.

----Witness---Mere fact that the prosecution witnesses were related inter se was not sufficient to disbelieve their evidence.

Muhammad Amir v. The State 1994 SCMR 662 and Muhammad Ahmad v The State 1997 SCMR 89 rel.

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

----S. 365-A/ 149---Plea of false implication due to enmity---Where accused failed to disclose the nature of enmity or any document to prove such enmity, bare words of the accused were not sufficient to prove false implication due to enmity.

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

----S. 265-F(6)---Defence witness, summoning of---Powers of Trial Court--Scope---Where Trial Court considered that an application for summoning of such witnesses was made for the purpose of vexation or delay or to defeat the ends of justice, it was the discretion of the Trial Court to summon or refuse to call a defence witness.

Muhammad Ashraf Leghari for Appellants.

Raja Qureshi for the Complainant.

Habib Ahmad, Asstt. A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 313 #

2000 P Cr. L J 313

[Karachi]

Before Muhammad Roshan Essani, J

SHAKEEL---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.323 of 1999, decided on 5th May, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.377/506/34 --- Bail7--Accused had allegedly committed sodomy with a school-going boy of tender age by putting him in fear of death on pistol point alongwith his companions---Act complained against accused was confirmed by medical examination of the victim---Delay in making report to police of the occurrence had been properly explained in the F.I.R.---Record did not show the case being an outcome of enmity---Case against accused was one of involving moral turpitude and it was high time when Courts, in spite of going into technicalities, should restore the confidence of people by implementing law in its true perspective according to the cannons of Islam---Reasonable grounds, prima facie, were available to believe the accused guilty of the offence charged with---Bail was declined to accused in circumstances.

Hasil and others v. The State 1986 PCr.LJ 720; Muhammad Anwar v. The State 1996 PCr.LJ 1195 and Niamat Ali alias Deena v. The State 1989 MLD 3978 ref.

Ashique Hussain Mehr for Applicant.

Muhammad Saleh Punhwar for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 315 #

2000 P Cr. L J 315

[Karachi]

Before Muhammad Rashan Essani, J

AKHTAR HUSSAIN ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.272 of 1998 and Miscellaneous Application No.293 of 1999, decided on 18th May, 1999, (a) Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324/34---Bail---Contentions that injuries were on non-vital parts of the body, that the intention to kill was lacking, that motive was not disclosed in the F.I.R. and that no offence under S.324, P.P.C., was made out had already been considered by High Court in the order whereby previous bail application of accused was dismissed and the same could not be decided afresh---Delay per se in lodging the report was no ground for grant of bail---Detention of accused in jail for the last six months did not entitle him to bail as the statutory period in such cases was one year---Non-mention of the name of the assailant in the column of the history in the medico-legal certificate was of no importance as the Medico-legal Officer was not an eye-witness of the occurrence ---Nonappearance of the injured witness for re-X-Ray examination and non-repetition of the fire by the accused being the matters requiring deeper appreciation of evidence could not be evaluated at bail stage---Opinion of State Counsel was not binding on the Court which was required to adjudicate the matter in accordance with law with good conscience---Bail application of accused was dismissed in circumstances.

Munir v. The State NLR 1985 AC 71; Shahbaz and another v. The State 1988 PCr.LJ 1184; Muhammad Ashraf and others v. The State 1988 PCr.LJ 1431; Saleem Khan v. The State 1999 PCr.LJ 140; Kazim Ali v. .:The State 1998 MLD 1535; Azad. Khan and 4 others v. The State Ad another 1999 PCr.LJ 324 and Abdul Waheed v. The State 1994 PCr.LJ 2345 ref.

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

----S. 497---Penal Code (XLV of 1860), S.324/34---Bail---Elaborate sifting of evidence---For the purpose of bail only tentative assessment of evidence is permissible---Detailed evaluation of evidence at bail stage is always deprecated by superior Courts.

Gul Zaman Khan for Applicant.

Muhammad Ismail Memon on behalf of A.-G. for the State

PCRLJ 2000 KARACHI HIGH COURT SINDH 331 #

2000 P Cr. L J 331

[Karachi]

Before Muhammad Roshan Essani and Ghulam Nabi Soomro, JJ

ABDUL GHAFOOR and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No. 389 of 1999, decided on 11th May, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Qanun-e-Shahadat (10 of 1984), Art.22---Penal Code (XLV of 1860), S.395/34---Bail---Non-mention of the names of accused in the F.I.R. was immaterial as they were not previously known to the complainant or prosecution witnesses---Failure to hold identification parade ---Effect--Matters like absence of eminent features of accused in the F.I.R. or holding of no identification parade required deeper appreciation of evidence which was not permissible at bail stage---Even otherwise, holding of identification parade was not a requirement of law, which was only one of the methods to test veracity of evidence of eye-witnesses who had an occasion to see the accused and claimed to identify them---Vehicle snatching was an act of terrorism---Bail was declined to accused in circumstances.

Muhammad Akbar v. The State 1998 SCMR 2538 and Dhani Bux and others v. The State 1999 MLD 2028 ref.

M. Ismail Memon for Applicants.

Syed Jalil Ahmed Hashmi, A.A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 350 #

2000 P Cr. L J 350

[Karachi]

Before Muhammad Roshan Essani and Ghulam Nabi Somoro, JJ

Mst. TAHIRA PARVEEN alias TAHIRA SAEED---Applicant

versus

THE STATE---Respondent

A.T.A. Bail Application No.333 of 1999, decided on 11th May, 1999.

Criminal Procedure Code (V of X1898)---

----S. 497---Penal Code (XLV of 1860), S.365-A/342/109/34---AntiTerrorism Act (XXVII of 1997), S.30(3)---Bail---No Court could grant bail except the Special Court in view of S.30(3) of the Anti-Terrorism Act, 1997---Powers of High Court with regard to grant of bail having been taken away by the Legislature, High Court was not competent to grant bail in a case pending in the Special Court created under the Anti-Terrorism Act, 1997---Courts being the creation of Statute had to follow the law as given by the Legislature and any departure from the same would be unwarranted in the eyes of law---Bail application, therefore, was not maintainable in High Court and the same was dismissed accordingly.

S.M. Iqbal for Applicant.

S. Jalil Hashmi, A.A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 361 #

2000 P Cr. L J 361

[Karachi]

Before Muhammad Roshan Essani, J

SAEED KHAN---Applicant

versus

THE STATE---Respondent

Special Criminal Bail Application No.9 of 1999, decided on 8th May, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Customs Act (IV of 1969), S.156(1)(8)(14)---Bail, grant of--Recovery of foreign currency from possession of accused at the time of his international departure---Foreign currency to the extent of U.S. Dollars 10,000 or equivalent thereof in other foreign currencies was permitted to be taken out of Pakistan by any person under the provisions of Protection of Economic Reforms Act, 1992---Foreign currency recovered from possession of accused at the time of departure was not over U.S. Dollars 10,000 or equivalent and the same was within the ambit of general permission--Accused was allowed bail in circumstances.

S.M. Iqbal for Applicant.

Mushir Alam, Standing Council.

PCRLJ 2000 KARACHI HIGH COURT SINDH 367 #

2000 P Cr. L J 367

[Karachi]

Before Abdul Hameed Dogar and Ghulam Nabi Soomro, JJ

MUMTAZ ALI and another---Appellants

versus

THE STATE---Respondent

Criminal Jail Appeals Nos. l l of 1998(x) and 11 of 1995(L), heard on 3rd February, 1999.

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

----Ss. 302/149, 365-A/149 & 324/149---Defective charge framed in the case---Trial Court had framed the charge against the accused which had no nexus with the case of prosecution wherein accused were alleged to have caused the death of the deceased and abducted certain persons, whereas in the charge accused were stated to have committed the offence by quite different sets of accused---Trial Court also in total disregard to the prosecution case had recorded statements of accused under S.342, Cr.P.C., in accordance with the contents of the aforesaid charge---Serious prejudice, thus, had been caused to accused---Convictions and sentences of accused were consequently set aside and the case was remanded to Trial Court for retrial from the stage of framing the charge.

Iqbal Hussain Shah and another v. The Drugs Inspector Jamal Anwar and another 1992 PCr.LJ 1781; Muhammad Ahsan Khan v. The State 1968 PCr.LJ 759 and Sarwar Shakir v. The State 1992 MLD 1253 ref.

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

----Ss. 221 & 222---Particulars of the charge and purpose behind it---Charge must contain all material particulars as to time, place as well as specific name of the alleged offence, the manner in which the offence was committed and the particulars of the accused so as to afford the accused an opportunity to explain the matter with which he is charged---Purpose behind giving such particulars is that the accused should prepare his case accordingly and may not be misled in preparing his defence.

Nooruddin Sarki for Appellants. S. Jalil Hashmi, Asstt. A.-G., Sindh for the State.

Date of hearing: 3rd February, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 372 #

2000 P Cr. L J 372

[Karachi]

Before Muhammad Roshan Essani, J

MUKHTAR ALI and 3 others---Applicants

versus

THE STATE---Respondent

Criminal Revision No. 58 of 1999, decided on 11th June, 1999.

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

----S. 540---Summoning of material witness etc.---Scope---Powers under S.540. Cr.P.C., must be exercised by the Court with care and caution---Such powers cannot be used to advance the cause of prosecution or of defence and are only meant to advance the cause of justice and not to fill in the gaps or lacunas left by the parties to the proceedings.

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

----S. 540---Penal Code (XLV of 1860), S.302/364-A/109---Recalling of witness for further cross-examination---Sole eye-witness in the case was sought to be recalled by accused for further cross-examination---Prosecution witnesses had already been cross-examined by the counsel previously engaged by the accused and merely because another counsel was engaged in the case who wanted to further cross-examine the witness was no ground for recalling the witness---Revision petition deserved no .consideration and the same was dismissed accordingly.

Dilbar v. The State PLD 1986 Kar. 385; Saleem Ahmed Naseer v. The State and others 1985 PCr.LJ 1078 and Pervaiz Ahmed v. Munir Ahmed 1998 SCMR 326 ref.

Mrs. Parveen Pervaiz for Petitioners. Arshad Lodhi, A.A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 390 #

2000 P Cr. L J 390

[Karachi]

Before Muhammad Roshan Essani, J

SHAH MUHAMMAD and 3 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No. 140 of 1994, decided on 12th November, 1998

(a) Penal Code (XLV of 1860)-

----Ss. 302/34 & 324/34---Appreciation of evidence---Presence of eyewitnesses at the place of occurrence at the relevant time was highly doubtful---Medical evidence was in conflict with ocular testimony--Prosecution and not the accused were obliged to clarify the position--Statements of related and interested rather inimical eye-witnesses were not corroborated by any independent source regarding identity and complicity of each accused in the offence---Motive for the occurrence was not proved--Prompt F.I.R. was of no use if the prosecution case was otherwise doubtful---Whole family of the accused i.e., father and three sons, had been involved in the case by the complainant party due to previous enmity--Accused were extended the benefit of doubt in circumstances and acquitted accordingly.

Muhammad Ashfaq v. The State 1995 SCMR 1321; Waqar Zaheer v. The State PLD 1991 SC 447; Habibullah and others v. The State PLD 1969 SC 127; Ghulam Sikandar and another v. Mumraiz Khan and others PLD 1985 SC 11; Abdul Hamid and another v. The State 1985 PCr.LJ 1992; Muhammad Ashraf and 2 others v. The State 1998 SCMR 279; Bagh Ali v. Muhammad Anwar and another 1983 SCMR 1292; State v. Muhammad Sharif 1995 SCMR 635; Muhammad Achar v. The State PLD 1990 Kar. 314; State v. Tariq Mahmood 1987 PCr.LJ 2173 and Mishkatul Masabih (English Translation by Fazlul Karim), Vol. II, p.544, Law Publishing Company, Lahore ref.

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

----Ss. 302/34 & 324/34---Appreciation of evidence ---Corroboration--Medical evidence by itself does not establish either the identity or complicity of the accused in the crime.

Muhammad Ashraf and 2 others v. The State 1998 SCMR 279 rel.

A.Q. Halepota for Appellants.

Nooruddin Sarki for the Complainant.

Muhammad Saad Qureshi for A.-G. for the State

Dates of hearing: 19th and 23rd October, 1998.

PCRLJ 2000 KARACHI HIGH COURT SINDH 409 #

2000 P Cr. L J 409

[Karachi]

Before Hamid Ali Mina and Attaur Rehman, JJ

PERVAIZ ALAM---Appellant

versus

THE STATE---Respondent.

Criminal Appeal No. 178 of 1998, heard on 21st July, 1999.

Penal Code (XI,V of 1860)---

----S. 420/109---Appreciation of evidence---Accused in collusion with co-accused, who was Manager of the Bank, had issued post-dated cheques in, favour of affected persons, who had made endorsements thereon ;good for payment" and facilitated and completed the offence of cheating being a Banks' employee using the Bank Seal---Said offence, therefore, was committed in connection with the business of the Bank" which being a very wide expression included the Bank procedures, banking activities with regard to dealing with customers and other persons regarding banking business--Accused and his said co-accused (since deceased) knew very well from the very beginning that no balance was available in the accounts of accused and even then he issued post-dated cheques which showed mens rea of cheating on his part that the aggrieved persons who had paid the amount for investment in his business were being cheated---Accused had not denied the factum of issuance of cheques in favour of the aggrieved persons from whom the money was taken on the false promise and inducement that the same would be returned with profits---Said promise and inducement was believed by the aggrieved persons because of the endorsement on the cheques by the co-accused Bank Manager which confirmed that the accused had sufficient funds in his accounts of the Bank and that the Bank would be liable and responsible for the payment to them---Trial Court, therefore, had the jurisdiction to try the accused alongwith his co-accused---Bank in such circumstances was liable to make payment to the affected persons and award of fine by Trial Court was neither unjustifiable nor illegal---Since the accused had neither denied the issuance of the post-dated cheques in favour of the affected persons nor denied the endorsement thereon by the co-accused Bank Manager, non-putting of the numbers and dates of the said cheques to the accused in his statement under S,342, Cr,P.C., was of no consequence and had not vitiated the trial---Neither the accused was misled nor any prejudice had been caused to him during the trial, consequently, his conviction and sentence was not liable to be set aside on the mere contention that the charge was not framed in accordance with law--Trial could not be vitiated even for non-compliance of submission of challan within prescribed time by the Police Officer---Conviction and sentence of accused were upheld in circumstances with some reduction in fine.

A. Habib Ahmad v, M.K.G. Scott Christian and 5 others PLD 1992 SC 353: Mahanth Dukhan Das and others v. Emperor AIR 1944 Pat. 211; Taj Din and 2 others v. Sardar Vakil Khan and 2 others 1973 PCr.LJ 629; Abdul Karim Butt v. Abdul Qayoom and another 1972 PCr,LJ 1182 and Nisar Ali v. Munshi Mehar Khan PLD 1981 SC 607 ref.

M.M. Aqil Awan for Appellant. S. Mamnoon Hassan, Dy. A.-G. for the State.

Dates of hearing: 20th and 21st July, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 428 #

2000 P Cr. L J 428

[Karachi]

Before Hamid Ali Mirza, J

Mst. BADRUNNISA JATOI and others---Applicants

versus

THE STATE and others---Respondents

Criminal Miscellaneous Application No. 131 of 1999 and Criminal Bail Applications Nos.222 and 582 of 1999, decided on 30th August, 1999.

Criminal Procedure Code (V of 1898)-

----S. 497(5)---Penal Code (XLV of 1860), S.302/324/120-B/148/149--Cancellation of bail---Accused were admittedly present at the scene of offence at the relevant time and ex-facie they were involved in terrorism by indulging in indiscriminate firing at the convoy killing eight persons and injuring many others after switching off the lights of the area and deploying a large number of police personnels ---Ex facie, taking law into their own hands and acting on the orders of the superiors, could not exonerate the persons implementing the illegal and unlawful orders of the superiors---Such acts of terrorism allegedly committed by accused could not be justified only on the flimsy ground of self-defence as they were police officers who were the custodian of law---Case of accused having fallen under the fourth proviso to S.497(1), Cr.P.C., being involved in the terrorism, they were not entitled to the benefit of third proviso to S.497(1), Cr.P.C.---Bail granted to accused by Sessions Court on the ground of statutory delay was consequently cancelled.

Shahid Hayat Khan and others v. The State 1997 PCr.LI 901; Shahid Hayat and 2 others v. The State PLD 1999 Kar. 162; , Jalal v. Allahyar and another 1993 SCMR 525; Naseebullah v. The State 1991 SCMR 2450; Akhtar Abbas v. The State PLD 1982 SC 424; Muhammad Riaz v. The State PLD 1995 Kar. 349; Shaukat Ali v. Ghulam Abbas and others 1998 SCMR 228; Nazir Hussain v. Ziaul Haq and others 1983 SCMR 72; Zahid Hussain Shah v. The State PLD 1995 SC 49; Moundar and others v. The State PLD 1990 SC 934; Muhammad Hanif v. The State PLD 1986 Kar. 437; Umar Draz and another v. The State 1997 SCMR 885; Sher Ali alias Sheri v. The State 1998 SCMR 190; Rizwan Hussain v. The State 1999 SCMR 131 and Muhammad Shafique v. The State 1998 PCr.LJ 1229 ref.

Shrfaraz Khan Tanoli and I.A. Hashmi for Applicants (in Criminal Miscellaneous Application No. 131 of 1999):

Ali Bin Adam Jafri for Respondent No. l (in Criminal Miscellaneous Application No. 131 of 1999).

Amanuilah Khan for Respondent No.2 (in Criminal Miscellaneous Application No. 131 of 1999).

Khawaja Naveed Ahmad for Respondents Nos.3 and-4 (in Criminal Miscellaneous Application No. 131 of 1999).

Ch. Iftikhar for Respondent No.5 (in Criminal Miscellaneous Application No. 131 of 1999).

S. Jalil Ahmad Hashmi and Habib Ahmad A.A.-Gs. for the State (in Criminal Miscellaneous Application No. 131 of 1999).

Ch. Iftikhar Ahmad for Applicant (in Criminal Bail Application No.222 of 1999).

Habib Ahmad, A.A.-G. for the State (in Criminal Bail Application No.222 of 1999).

Sarfaraz Khan Tanoli for Applicant (in Criminal Bail Application No.222 of 1999).

Muhammad Nadeem Qureshi for Applicant (in Criminal Bail Application No.222 of 1999).

Azizullah K. Shaikh for Applicant (in Criminal Bail Application No.582 of 1999).

Habib Ahmad, Asstt. A.-G., Sindh for the State (in Criminal Bail Application No.582 of 1999). .

Muhammad Nadeem Qureshi for Applicant (in Criminal Bail Application No.582 of 1999).

Dates of hearing: 23rd, 24th, 25th and 26th August, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 462 #

2000 P Cr. L J 462

[Karachi]

Before S. Ahmed Sarwana, J

MUMTAZ and 5 others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.S-305 of 1999, decided on 9th December, 1999.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.324, 332, 353, 147, 148 & 149---Pre-arrest bail---Accused persons were alleged to have attacked the police party and there was a cross-fire between the police and the accused--Two members of the police party were injured during the incident---Medical report showed that injuries were described as "Shajjah-i-Khafifa" and the same were caused by blunt weapon---It was difficult to believe that no one received any injury when according to F.I.R. there was a cross-fire between the police and the other party---Where inquiry was yet to be completed as to who caused injury to whom, the matter was of further inquiry---Grant of bail where imprisonment was less than ten years was a rule and its refusal was an exception---Confirmation of pre-arrest bail was also not opposed by the State Counsel---Pre-arrest bail already granted was confirmed in circumstances.

Abdul Rasool Abbasi for Applicants.

Abdul Fateh Mughal for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 520 #

2000 P Cr. L J 520

[Karachi]

Before Rana Bhagwan Das and Mushir Alam, JJ

Soofi ABDUL QADIR---Appellant

versus

THE STATE and others---Respondents

Constitutional Petitions Nos.D-1339 of 1995 and D-793 of 1997. decided on 2nd September, 1999.

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

----Ss. 169, 170 & 173---Police Rules, 1934, Rr.24.7 & 25.57---Disposal of F.I.R. by Investigating Officer---Investigating Officer has the authority to dispose of a first information report as cancelled after having found the same as false, founded on a mistake of fact or law, a dispute of a civil nature or untraceable, after, taking all necessary steps 'to the best of his endeavour and ability, but the order of cancellation of F.I.R. must be obtained from a Magistrate competent to take cognizance of the offence and to try the case or to send the matter for trial to a superior Court.

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

----S. 20---Penal Code (XLV of 1860), S.302/364/324/429/427/148/149--West Pakistan Arms Ordinance (XX of 1965), S.13-D---Criminal Procedure Code (V of 1898), Ss. 169, 170 & 173---Police Rules, 1934, Rr.24.7 & 25.57---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Cancellation of F. I. R. ---Question was whether the Magistrate was competent to take cognizance of the offences in relation to which he had passed an order on the summary submitted by the Superintendent of Police for cancellation of the F.I.R. for want of evidence or otherwise---Offences referred to in the F.I.R. were ordinarily triable by the Court of Session and not by a Magistrate First Class---Since the Magistrate was not vested with the jurisdiction to take cognizance of the said offences, he while cancelling the F.I.R. on police report had acted without jurisdiction and the order passed by him was coram non judice and the same was quashed accordingly.

Bahadur v. State PLD 1985 SC 62; Arif Ali Khan v. State 1993 SCMR 187; Muhammad Sharif v. State 1997 SCMR 304 and Hussain Ahmed v. Irshad Bibi 1997 SCMR 1503 ref.

----Ss. 173, 435, 439 & 561-A---Executive order passed by Magistrate not subject to revision, but amenable to inherent jurisdiction of High Court---Cancellation of F.I.R.---Magistrate while concurring with the police report submitted under S.173, Cr.P.C. did not act as a Criminal Court inferior to the Court of Session and the High Court and his order, therefore, cannot be revised and modified under the provisions of Ss.435 & 439, Cr.P.C., but the same is amenable to the inherent jurisdiction of High Court under S.561-A, Cr.P.C. provided it amounts to abuse of process of Court.

Bahadur v. State PLD 1985 SC 62; Arif Ali Khan v. State 1993 SCMR 187; Muhammad Sharif v. State 1997 SCMR 304 and Hussain Ahmed v. Irshad Bibi 1997 SCMR 1503 ref.

(d) Constitution of Pakistan (1973)---

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Exercise of its Constitutional jurisdiction by High Court would not stand in the way of its inherent jurisdiction---Invocation of the Constitutional jurisdiction of High Court but itself may not be a circumstance strong enough to disentitle the petitioner to the exercise of its power under S.561-A, Cr.P.C.

S. Ali Aslam Jafri for Appellant (in Constitutional Petition No. 1339 of 1995).

Nizamuddin Baloch for Appellant (in Constitutional Petition No.793 of 1997).

Zawar Hussain Jafri, Addl. A.-G. for the State.

Abdul Ghani Shaikh, Dy. A.-G.

M.A. Rashid, Abdul Fatah Malik and Habibullah Shaikh: Amicus curaie.

Date of hearing: 2nd September, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 548 #

2000 P Cr. L J 548

[Karachi]

Before Ghulam Nabi Soomro and Wahid Bux Brohi, JJ

Mst. SAEEDA BILQUES---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.133 and Miscellaneous Application No.1334 of 1999, decided on 14th October, 1999.

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

----S. 561-A---Inherent powers of High Court---Scope---Scope of powers of High Court under S.561-A, Cr.P.C. is wide enough and unless the exercise of such power is expressly excluded by statute the same can be invoked in suitable cases.

Haji Muhammad Aslam Khan v. Muhammad Aslam and another 1990 SCMR 211; Muhammad Sharif and 8 others v. The State and another 1997 SCMR 304 and Hussain Ahmed v. Mst. Irshad Bibi and others 1997 SCMR 1503 ref.

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

----Ss. 426(1) & 561-A---Penal Code (XLV of 1860), Ss.406 & 471--Suspension of sentence---Accused besides being a Member of the Bar was a lady and the sentence awarded to her was only one year's R.I.---Powers under S.561-A, Cr.P.C. could, therefore, be exercised in favour of accused---sentence of accused was suspended in circumstances and she was released on bail accordingly.

Muhammad Akram v. The State Criminal Appeal No.86 of 1998; State v. Qaim Ali Shah 1992 SCMR 2192; Haji Muhammad Aslam Khan v. Muhammad Aslam and another 1990 SCMR 21 f ; Muhammad Sharif and 8 others v. The State and another 1997 SCMR 304 and Hussain Ahmed v. Mst. Irshad Bibi and others 1997 SCMR 1503 ref.

I.A. Hashmi for Appellant.

S. Tariq Ali. Standing Counsel for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 551 #

2000 P Cr. L J 551

[Karachi]

Before Ghulam Nabi Soomro and Wahid Bux Brohi, JJ

GUL MUHAMMAD ---Applicant

versus

THE STATE---Respondent

Criminal Bail No. 1011 of 1999, decided on 5th October, 1999

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.6/9--Bail, grant of---Accused was not found selling "Charas" within the bounds of an enclosure, room or shop, but the same was secured on his personal search from the pocket of his inner shirt which weighed 530 grams only---Bail was allowed to accused in circumstances.

Nazan Shah v. The State 1998 PCr.LJ 1540; Liaquat Ali v. The State 1998 PCr.LJ 1444; Buner Gul v. The State 1999 PCr.LJ 728; Mst. Nasira Bibi v. The State PLD 1998 Lah. 146 and Tariq Bashir v. The State PLD 1995 SC 34 ref.

Maroof Hussain Hashmi for Applicant.

Shoaib M. Ashraf, Special Prosecutor, A.N.F., for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 562 #

2000 P Cr. L J 562

[Karachi]

Before Abdul Hameed Dogar and Ghulam Nabi Soomro, JJ

SHARIF---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.154, Special Anti-Terrorism Jail Appeal No.32, Confirmation Case - No. 1 and Special Anti-Terrorism Appeal No.22 of 1998(Hyd.), decided on 18th August, 1999.

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

----S. 25---Penal Code (XLV of 1860), S.402-B/365-A/34---Appreciation of evidence ---Factum , of hijacking aero plane was not denied by the accused persons and the same was admitted in the statements recorded under S.342, Cr.P.C.---Accused persons admitted that they were arrested trickly inside the aero plane alongwith pistols and did not plead animosity with the officials who arrested them---Accused persons had accepted the incident, did not examine themselves on oath and nothing was stated in defence---Prosecution had produced sufficient convincing, reliable and trustworthy evidence on record to establish the charge against the accused persons---Conviction and sentence of death awarded by the Trial Court to the accused persons was maintained.

1997 PCr.LJ 539; 1991 PCr.LJ 617; PLD 1997 Pesh. 279; 1983 PCr.LJ 128 and 1985 PCr.LJ 625 ref.

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

----Art. 38---Confession before police---Validity---Any such confession was inadmissible in evidence.

----S. 25---Penal Code (XLV of 1860), S.402-B/365-A/34---Appreciation of evidence---Accused was not arrested alongwith other co-accused from inside the hijacked aero plane---Accused was handed over to the Investigating Officer by the Commanding Officer of Airports Security Force---Accused was alleged to clear the shoulder bags of the other co-accused persons but no witness was produced to establish that fact---Bag said to be property of the accused persons was lying unclaimed in luggage cell---In absence of any independent piece of evidence no reliance could be placed on the same--Mere suspicion was not sufficient to justify conviction ---Circumstances sought to be relied upon must be proved beyond all doubts---No sufficient evidence was available against the accused and case against him was doubtful---Conviction and sentence awarded by the Trial Court were set aside.

Asadullah and another v. The State and another 1995 SCMR 1034 ref.

Qurban Ali Chohan and Muhammad Ismail Memon for Appellants.

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

Date of hearing: 18th August, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 569 #

2000 P Cr. L J 569

[Karachi]

Before Sabihuddin Ahmed and S.A. Rabbani, JJ

MEHBOOB-UR-REHMAN --- Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 1097 of 1997, decided on 2nd February, 2000

Criminal Procedure Code (V of 1898)

----Ss. 497 & 498---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 8, 9, 12, 14, 15 & 51---Bail, grant of---Provisions of S.51(1), Control of Narcotic Substances Act, 1997, provide bar in respect of grant of bail to an accused if Trial Court had framed a charge against him for an offence relating to narcotics punishable with death or till the stage before a charge had been framed by Trial Court if sufficient material was available for proving such a charge, more than allegations in the F.I.R.---Trial Court had already framed charge against accused about commission of offence relating to narcotics punishable with death--Prohibition provided under S.51(1), Control of Narcotic Substances Act, 1997, in circumstances, would apply to the case and grounds otherwise available for purpose of grant of bail, could not be considered in view of the bar/prohibition.

Gulzaman v. State 1999 SCMR 1271 ref.

Per Sabihuddin Ahmed J. agreeing with S.A. Rabbani J.---

The provisions of section 498, Cr.P.C. could not be interpreted as to make those of section 51 of the Control of Narcotic Substances Act, 1997 entirely redundant. His Lordship, however, reserved his opinion on the question whether section 561-A, Cr.P.C. could be invoked in an extreme hardship case in terms of the law declared by the Supreme Court in State v. Qayum Ali Shah 1992 SCMR 2192 cited with approval in Gul Zaman v. State 1999 SCMR 1271.

State v. Qaim Ali Shah -1992 SCMR 2192 and Gul Zaman v. The State 1999 SCMR 1271 ref.

Shaukat Hussain Zubedi for Applicant.

Shoaib Ashraf, Special Public Prosecutor for A.N.F.

PCRLJ 2000 KARACHI HIGH COURT SINDH 573 #

2000 P Cr. L J 573

[Karachi]

Before S.A. Rabbani, J

JAMIL AKHTAR KIYANI and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No. 104 of 2000, decided on 16th February, 2000.

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

----S. 497---Penal Code (XLV of 1860), Ss.342, 395 & 506-B---Bail, grant. of---Delay of four months in registering the F.I.R., had adequately been explained---Main accused had capability to influence prosecution case as he was not only a retired D.S.P. and a very influential person, but had connection with the advisor to Prime Minister who was -running affairs of the Province---Likelihood of tampering with evidence, thus, could not be ruled out---Releasing accused on bail, therefore, was not in the interest of justice in circumstances---Allegations against co-accused who was servant and guard of .the main accused, were that he was ~ with the main accused when complainant party was wrongfully confined ---Co-accused being guard of main accused though was armed at the relevant time, but was not a beneficiary of the offence ---Co-accused was, thus, admitted to bail, in circumstances.

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

----S. 497---Grant of bail, consideration for---Law of bail though had developed in a different direction and question of sentence for the offence as well as adequacy of material to infer involvement of accused in crime had gained more relevance and significance as a determining factor and consideration for grant of bail, but basic principle of jurisprudence that one could not be punished before his guilt was proved, had not lost force and applicability---Accused was not to be imprisoned as a punishment for commission of the crime, but object of the law was to facilitate the proceedings of case which could be adversely affected by non-attendance of accused or by any attempt on his part to tamper with the evidence---Most significant and prime considerations for a decision about bail of accused were probability of his absconding and chances and his capability for attempt to tamper with evidence.

Ilyas Khan and Gul Zaman Khan for Applicants Arshad Lodhi,,A.A.-G. for the State. Shaikh Mir Muhammad for the Complainant.

PCRLJ 2000 KARACHI HIGH COURT SINDH 599 #

2000 P Cr. L J 599

[Karachi]

Before Rasheed Ahmed Razvi and Muhammad Ashraf Leghari, JJ

IRSHAD ALI ---Petitioner

versus

ABDUL HAMEED KHAKHRANI, S.H.O., POLICE STATION GAHEJA and 4 others---Respondents

Criminal Miscellaneous Application No.100/D of 1999, decided on 27th October, 1999.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Allegation against Station House Officer of Police Station, who allegedly detained petitioners, were that petitioners were arrested and kept under illegal and unauthorised confinement for four days till the raid was conducted by Deputy Registrar of the Court--All detenus/petitioners had alleged. maltreatment and torture at the hands of Station House Officer and they had also alleged forcible removal of valuables from their house by the Station House Officer and other policemen---Station House Officer who did not deny detention of petitioners had given a frivolous explanation that petitioners were living at police station on their own accord, which explanation did not attract common sense---Station House Officer had exceeded his lawful authority in depriving three innocent citizens of their property by impounding their buffaloes on ground of suspicion whet, no case of cattle theft was pending investigation against them in the police station---High Court, in circumstances, directed S.S.P. concerned to lodge F.I.R. against the Station House Officer and his other accomplices under Ss.220 & 343/34, P.P.C. and Station House Officer was directed to pay specified monetary compensation to petitioners within stipulated period.

Ali Ahmed v. Muhammad Yakoob Almani, D.S.P. Qasimabad, Hyderabad and 5 others PLD 1999 Kar. 134 and Agha Khuda Bux, Advocate v. The State and 3 others 1999 PCr.LJ 1209 ref.

Imtiaz Ali Mugheri for Petitioner.

Ali Azhar Tunio, Asstt. A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 614 #

2000 P Cr. L J 614

[Karachi]

Before Rasheed Ahmed Ravi, J

SONO KHAN---Applicant

versus

SIKANDER and another---Respondents

Criminal Miscellaneous Application No.68 of 1999 (Larkana), decided on 7th October, 1999.

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

----S. 497(5)---Penal Code (XLV of 1860), 5.302/34---Cancellation of bail--Principles---Bail granted on merits after due consideration of facts and law laid down by the superior Courts, cannot be recalled in the absence of exceptional circumstances.

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

----S. 497(5)---Penal Code (XLV of 1860), S.302/34---Cancellation of bail--Ground that no recovery was effected from the accused in the case was available at the time of hearing of his bail application---Sessions Court had considered the fact that at the time of submission of first challan the accused was shown as an absconder, but it had not discussed the consequences of such abscondence for grant or refusal of bail---Trial Court, without having referred the accused to Medical Expert, had given its opinion about his being a disabled person and incapable of committing the offence, which was unwarranted and had greatly prejudiced the case of complainant---Bail order, which was patently illegal and factually incorrect, could be recalled irrespective of the fact whether the accused had misused the bail privilege or not, as such illegality could not be cured by subsequent acts of the accused--Trial Court had no ground available for granting bail to accused at the time of hearing of his second bail application---Bail allowed to accused was cancelled in circumstances.

Rafiullah v. The State and another 1998 SCMR 356; Rana Muhammad Safdar v. Gulzar Ali alias Papoo and another 1999 PCr.LT 1; Karamat Hussain v. Faraqat and 4 others PLD 1987 SC (AJ&K) 27; Muhammad Arshad v. The State and another 1997 SCMR 1275; Allah Din and another v. The State Criminal Bail Application No.72 of 1997; Government of Sindh and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1285; Syed Amanullah Shah v.. The State and another PLD 1996 SC 241; Mazhar Mehmood v. Basit and another 1997 SCMR 915; Moula Bux v. Shadan and others 1997 PCr.LJ 1573; Ashique Hussain v. The State 1993 SCMR 417 and State v. Zubair and 4 others PLD 1986 SC 173 ref.

Sarfraz Khan Jatoi for Applicant. Aftab Ahmed Gorar for Respondent No. 1. Ali Azher Tunio, Asstt. A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 630 #

2000 P Cr. L J 630

[Karachi]

Before Rasheed Ahmed Razvi and Muhammad Ashraf Leghari, JJ

SHAHNAWAZ and others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.D-222 of 1999, decided on 6th October, 1999.

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

----S. 497(1), fourth proviso--.-Bail, grant of---Statutory delay in trial--Scope---Where accused succeeds in proving that he does not fall within any of the classifications as provided under third proviso to S.497(1), Cr.P.C. such accused would be entitled to the benefit of fourth proviso to S.497(1), Cr.P.C.

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

----S. 497(1)---Penal Code (XLV of 1860), S.324/353/148/149---West Pakistan Arms Ordinance (XX of 1965), S.13-D---Bail, grant of---Statutory delay in trial---Hardened and desperate criminal or a terrorist--Determination by Court---Principle---Whether an accused fell within the category of such criminals, the Court considering bail plea of such accused could look into the allegations of the F.I.R. as well---Acts and omissions alleged against the accused persons in the F.I.R. constituted them to be dangerous and desperate criminals---Bail was refused in circumstances.

Wazir and another v. The State PLD 1986 Kar. 646; Moundar and others v. The State PLD 1990 SC 934; Ghulam Sarwar v. The State 1990 SCMR 1045 and Muhammad Sadiq and another v. The State 1996 SCMR 1654 ref.

Jalal v. Allah Yar and another 1993 SCMR 525 rel.

Mazher Ali Siddiqui for Applicants. Rashid Ali G. Shaikh for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 634 #

2000 P Cr. L J 634

[Karachi]

Before Rasheed Ahmed Razvi, J

HUBDAR ALI ABBASI---Applicant

versus

THE STATE---Respondent

Criminal Revision Application No. 11, Miscellaneous Applications Nos.264 and 291 of 1999 (Larkana), decided on 15th October, 1999.

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

----Ss. 439 & 561-A---Sindh Children Act (XII of 1955), Ss.4, 10, 65 & 68---Penal Code (XLV of 1860), 5.302---Trial by Juvenile Court---Age--Determination---Accused claimed that he being under the age of sixteen years, was to be tried separately as provided under S.10, Sindh Children Act, 1955---Plea of accused was rejected .by Trial Court holding that School Leaving Certificate of accused was not a conclusive proof of age as against medical opinion, based on report of Radiologist---School Leaving Certificate competently, issued showed that accused on date of alleged incident was below sixteen years---School Leaving Certificate upon which accused had claimed to be "juvenile offender" was supported not only by Matric Certificate, but also by Admission Card used in examination hall---All said documents were originated from concerned Board of Education and were prepared much prior to the commission of alleged offence---In absence of any allegation of forgery or manipulation from prosecution, said document showing correct age of accused could not be ignored---Medical opinion based on report of Radiologist showed age of accused at time of incident as sixteen years and four months---Accused, held, was a child at time of commission of offence and was entitled to be tried by Juvenile Court.

Muhammad Saleem v. The State 1985 PCr.LJ 708; Muhammad Ramzan v. The State 1992 PCr.LJ 1058; Noor Khan v. The State 1992 PCr.LJ 2459; Muhammad Anwar v. The State 1983 SCMR 1001; Papoo alias Dost Muhammad and others v. The State Criminal Appeals Nos.5 and 6 of 1994; Peer Jalal Shah v. The State PLD 1982 Kar. 967; Jamshaid v. Agha Suhail and another PLD 1998 Kar. 142; Muhammad Hayat v. The State Criminal Bail Application No.432 of 1985; Muhammad Saleem v. The State 1985 PCr.LJ 708; Kabal Shah v. The State 1995 PCr.LJ 2058; Muhammad Ilyas alias Chikna v. State 1987 PCr.LJ 1238; Muhammad Anwar and others v. State 1976 PCr.LJ 1325 and Sirajuddin v. Saghiruddin 1970 SCMR 30 ref.

Muhammad Afzal Soomro for Applicant.

Altaf Hussain Surahio for the State.

Aftab Ahmed Gorar for the Complainant.

PCRLJ 2000 KARACHI HIGH COURT SINDH 642 #

2000 P Cr. L J 642

[Karachi]

Before Rasheed Ahmed Razvi, J

WARIS and 2 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No.232 of 1999, decided on 25th October, 1999.

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

----S. 497---Bail, grant of---Delay in lodging F.I.R.---Effect---Delay, though was not always fatal to the prosecution case, but it often gave rise to the presumption that delay might have given an opportunity to the complainant party to falsely involve accused in the case---Where reasonable and convincing explanation was given for delay in lodging F.I.R., such delay was to be ignored.

Barkat Masih v. The State 1985 PCr.LJ 2734 Rahim Khan v. The State 1983 PCr.LJ 1478; Sarfraz v. The State 1981 PCr.LJ 1031; Mhanda v. The State 1994 PCr.LJ 86 and Amir v. The State PLD 1972 SC 277 ref.

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

----S. 497---Penal Code (XLV of 1860), S.334 [as substituted by Criminal Law (Second Amendment) Ordinance (XII of 1993)], and Ss.337-F & 34--Bail, -grant of---Prosecution had itself conceded that no empties were recovered from place of Wardat and that there were contradictions in medico-legal report of injured and deposition of prosecution witnesses as recorded under S.161. Cr.P.C.---Case being of further inquiry, bail was granted to accused.

Muhammad Sharif H. Qazi for Applicants.

Altaf Hussain Surahio for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 645 #

2000 P Cr. L J 645

[Karachi]

Before Muhammad Roshan Essani, J

Syed ZEESHAN HUSSAIN KAZMI --- Applicant

versus

THE STATE and 3 others---Respondents

Criminal Miscellaneous Application No.450 of 1996, decided on 26th August, 1999.

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

----S. ,561-A---Inherent powers of High Court ---Abscondence of accused--Effect---Unexplained abscondence for a long period disentitled the accused to any concession as contemplated by procedural as well as substantive law--Fugitive from law by his very conduct thwarts the course of justice and becomes privy to the disappearance of valuable evidence---High Court, thus, cannot act in aid of a fugitive from law.

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

----S. 561-A---Inherent powers of High Court ---Applicatio;i and scope--Power under S.561-A, Cr.P.C. is not meant to stifle the prosecution but is intended to prevent the abuse of the process of Court---Court for quashing the proceedings has to consider the allegations made against the accused on their face value and if a prima facie case is made out, Court can refuse quashment---High Court under S.561-A, Cr:P.C. cannot assume the role of Trial Court and evaluate the evidence present on record or yet to be recorded, to determine the guilt or innocence of an accused by way of a detailed enquiry---Accused may have a good defence but it has to pass the test of cross-examination and appreciation of defence evidence is also the duty of the Trial Court in the light of the statutory provisions and the dictums laid down by the superior Courts.

----S. 561-A---Inherent jurisdiction of High Court---Nature---Inherent jurisdiction not to be exercised as a routine---Jurisdiction under S.561-A, Cr. P. C. is an extraordinary one and the powers vested in the High Court thereunder are to be exercised sparingly and not generally or as a matter of routine.

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

----S. 561-A---Inherent jurisdiction of High Court---Scope---Inherent jurisdiction not an additional or alternate jurisdiction and not to override express provisions of law---Jurisdiction of High Court under S.561-A, Cr.P.C. is not an additional or alternate jurisdiction and when alternate remedy is available, application under S.561-A, Cr.P.C. cannot' be entertained---Inherent powers of High Court, though are very wide, but they are not supposed to be exercised to override the express provisions of law--Jurisdiction under 5.561-A, Cr.P.C. can be invoked to quash the proceedings in exceptional cases where the trial of accused tentamounts to abuse of process of Court.

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

----S. 156---Further investigation into cognizable cases---Police/Investigation Agency is not debarred from conducting further investigation in any cognizable case after submission of charge-sheet and there is no embargo on its powers in this context.

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

----S. 302/324/148/149---Criminal Procedure Code (V of 1898), S.561-A--Quashing of proceedings---Merely because the accused was not nominated as a culprit in two earlier F. I.Rs. and he was not sent up for trial or that enmity existed between the parties were no grounds for quashing of proceedings, particularly when he had not appeared before the Trial Court in response to the process issued against him---Accused being a fugitive from law had lost the normal rights granted by the procedural or substantive law and the inherent jurisdiction vested in the Court under S.561-A, Cr.P.C. could not be exercised in favour of an absconder---Petition was dismissed accordingly.

Shahnaz Begum v. Honourable Judges of High Court of Sindh and Balochistan PLD 1971 SC 677; Emperor v. Khawaja Nazir Ahmed AIR 1945 PC 18; Muhammad Hanif Pathan v. The State PLD 1999 Kar. 121; Muhammad Khan and others v. Inspector-General Police, Punjab PLD 1976 Lah. 574; Zeshan Kazmi v. The State 1997 PCr.LJ 881; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Mirza Naseem Baig v. Muhammad Iqbal and another 1981 SCMR 315; Farman Ali and 3 others v. The State PLD 1980 SC 201; Siraj Din v. Kala and another PLD 1964 SC 26; Muhammad Ashfaque v. The State 1998 PCr.LJ 1486; Jam Sadiq Ali v. The State 1989 PCr.LJ 1910; The State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322; Manzoor Hussain Wasan v. The State 1992 MLD 1607; Aminullah v. The State PLD 1982 SC 429; Ameenullah v. The State PLD 1976 SC 629; Akram Khan v. The State and another 1978 SCMR 242; Zeeshan Kazmi v. The State PLD 1997 SC 267; Zeeshan Kazmi v The State PLD 1997 SC 406; Hayat Bux and others v. The State PLD 1981 SC 265; Ali Ahmad Sabri v. The State 1982 SCMR 818; Muhammad Ali v. The State 1998 PCr.LJ 1323; Akbar Khan and others v. Muhammad Anwar and others 1982 SCMR 18; Aftab Ahmad v. Hassan Arshad and 10 others PLD 1987 SC 13; Muhammad Akbar v. The State 1972 SCMR 335; Shahid Hayat and others v. The State PLD 1999 Kar. 162; Shahid Hayat Khan and another v The State 1997 PCr.LJ 901; Nasratullah v. The State PLD 1994 Pesh 141; A. Habib Ahmed v. M.K. alias Scott Christian and 5 others PLD 1992 SC 353 and Sheikh Mehmood Saeed and others v. Amir Awaz Khan and others 1996 SCMR 839 ref.

Suleman Habibullah for Applicant.

Muhammad Saleh Punhwar, I.A. Hashmi, Sarfraz Khan Tanoli and Mehmud A. Qureshi for Respondents.

Dates of hearing: 12th April and 10th May, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 657 #

2000 P Cr. L J 657

[Karachi]

Before Dr. Ghous Muhammad Abdul Hameed Dogar and Anwar Zaheer Jamali, JJ.

GUL HASSAN DERO---Applicant

versus

THE STATE---Respondent

Criminal Bail Applications Nos.D-192 of 1998 and 512 of 1999, decided on 25th October, 1999.

Per Abdul Hameed Dogar, J.---

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 51---Bail, grant of---Case of - accused fell under S.9(c) of the Control of Narcotic Substances Act, 1997 as the quantity of narcotic substances recovered from him exceeded one Kg. and did not exceed 10 Kgs.---Vast difference existed in alleged recovery of narcotics from the accused as per case of the prosecution and the one shown by the Chemical Examiner in his report---Arrest of the accused in the case also needed serious consideration which could not be resolved without recording evidence---Embargo on grant of bail contained in S.51(1) of the Control of Narcotic Substances Act, 1997 did not apply to the case of accused and the allegations made against him required further enquiry as contemplated by S.497(2), Cr.P.C.---Accused was admitted to bail in circumstances.

1984 PCr.LJ 2300; 1973 PCr.IJ 205; 1996 PCr.LJ 347; 1987 PCr.LJ 1355; PLD 1995 SC 34; 1994 PCr.LJ 1689; Criminal Bail Applications Nos. 118 of, 1998, 35 and 64 of 1997; Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445; The State v. Qaim Ali Shah 1992 SCMR 2192; Criminal Petition No.192 of 1998; Criminal Bail Application No. 119 of 1998; Muhammad Akhtar v. The State NLR 1983 Crl. 723 and Gul Zaman v. The State 1999 SCMR 1271 ref.

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

----S. 497/498---Control of Narcotic Substances Act (XXV of 1997), S.51---Jurisdiction to grant bail---Despite the prohibitory provision contained in S.51 of the Control of Narcotic Substances Act, 1997, High Courts and Sessions Courts have the power to grant bail.

Gul Zaman v. The State 1999 SCMR 1271 ref.

Per Anwar Zaheer Jamali, J.---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9,(c) & .51(1)---Prohibition on grant of bail---Complete bar as to grant of bail imposed under S.51(1) of the Control of Narcotic Substances Act, 1997 only applies to the cases falling under category (c) of S.9 of the said Act.

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

----S. 25---Criminal Procedure Code (V of 1898), S.103---Mode of making search and arrest---Statutory exception---Applicability of S.103, Cr.P.C. has been specifically excluded in the cases covered under the Control of Narcotic Substances Act, 1997---When the statute evolves its own procedure for the purpose of search and investigation, then impliedly it excludes the applicability of general law of search and investigation to that extent.

Per Anwar Zaheer Jamali, J.; disagreeing with Abdul Hameed Dogar, J. [Minority view]---

Muhammad Ismail v. Abdul Habib PLD 1993 Kar. 181; Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599; Statute Law by Craies, 5th Edn., p.243; State Cement Corporation of Pakistan v. Collector 'Customs, Karachi and others 1998 SCMR 2207; Zahoor Illahi v. The State PLD 1977 SC 273; ..Allied Bank of Pakistan v. Khalid Farooq 1991 SCMR 599; The State v. Syed Qaim Ali Shah 1992 SCMR 2192; Choudhary Shujjaat Hussain v. The State 1995 SCMR 1249; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Gul Zaman v. The State 1999 SCMR 1271; Iqbalur Rehman v. The State PLD 1974 SC 83; Abdul Hayee arid 2 others v. The State 1996 SCMR 555; Nazar Muhammad v. The State PLD 1978 S( 236 and SafdarAbbas v. The State PLD 1987 SC 476 ref.

Per Dr. Ghous Muhammad, J. agreeing with Abdul Ihmeed Dogar, J.--

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 51---Bail---Where the recovered drug phychotropic substance or controlled substance exceeded one hundred grams but not one kilogram (1000 grams), the offence would entail punishment up to seven years' R.I. only---Accused was allowed bail in circumstances.

Gul Zaman v. The State 1999 SCMR 1271 ref.

Muhammad Ayaz Soomro for Applicant.

Amir Ahmed Kehar for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 674 #

2000 P Cr. L J 674

[Karachi]

Before Wahid Bux Brohi, J

RANJHO---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 121 of 1999, decided on 13th August, 1999.

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

----S. 497---Penal Code (XLV of 1860), S.324/34---Bail, grant of---Out of four injuries allegedly inflicted by accused on person of injured one was declared to be "Jaifah" which was punishable with imprisonment for ten years in addition to "Arsh" to the extent of one-third of Diyat---Enough evidence was available on record to indicate that prima facie an attempt was made by accused on life of injured and fire-arm injuries were caused to her and at that stage it could not reasonably be conceived that accused who had motive to commit offence was not liable for alleged offence---Accused, in circumstances, was not entitled to concession of bail.

Saleem Khan v. The State 1999 PCr.LJ 140; Muhammad Shakeel v. The State 1996 Cr.LJ 238; Zulfiqzr v. The State 1994 PCr.LJ 2285 and Mansha and 2 others v. The State 1977 SCMR 449 ref.

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

----S. 497---Grant of bail---Principles---Each case had its own set of facts and the bail plea was to be examined in the light of its own peculiar circumstances of the case---Court seized of jurisdiction for examining question of bail should make only tentative assessment of facts without making detailed reference to the merits.

Muhammad Siddique' v. Muhammad Abbas 1998 SCMR 284 and Dildar Baig v. The State 1998 SCMR 358 ref.

Imtiaz Ali Mugheri for Applicant.

Altaf Hussain Surehio for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 677 #

2000 P Cr. L J 677

[Karachi]

Before Abdul Ghani Shaikh and Wahid Bux Brohi, JJ

GHULAM KADIR---Appellant

versus

THE STATE---Respondent

Criminal Jail Appeal No.62 of 1994, decided on 3rd September, 1999

Penal Code (XLV of 1860)---

----S. 365-A/149---Appreciation of evidence---Evidence of the abductees which had gone unchallenged as to the identity of the accused was unanimous on the point that during the period of their captivity the accused had guarded them and was seen there--Regardless of the identification test parade the evidence of the said abductees recorded at the trial was sufficient to establish identity of the accused which was credible and truthful---Brother of the abductees had given a clear picture on the point of payment of ransom as to how the money was arranged and paid to the representatives of the dacoits and his unchallenged version was corroborated by the abductees---Payment of ransom amount and in lieu thereof release of abductees had been proved---Conviction and sentence of accused were upheld in circumstances.

Mst. Safdar Jan v. The State and another 1997 PCr.LJ 1553; Abdul Karim alias Raja and another v. The State 1996 PCr.LJ 503; Khadim Hussain v. The State 1985 SCMR 721; Imdad Jakhro v. The State 1994

PCr.LJ 1648; 1995 SCMR 127; Farman Hussain v. The State PLD 1995 SC 1; Muneer Ahmed and another v. The State 1998 SCMR 752; Zakir Khan v. The State 199 SCMR 1793; Muhammad Akbar v. The State 1998 SCMR 2538 and The State v. Nazir Ahmed and others 1999 SCMR 610 ref.

Khalid Iqbal Memon for Appellant.

Altaf Hussain Surahiyo for the State.

Date of hearing: 19th August, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 714 #

2000 P Cr. L J 714

[Karachi]

Before Saiyed Saeed Ashhad and Abdul Ghani Shaikh, JJ

HADI BUX alias HADOO---Applicant

versus.

THE STATE---Respondent

Criminal Bail Application No.483 of 1999, decided on 6th October, 1999.

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)--Bail, grant of---Case of further inquiry---Delay in sending samples to Chemical Examiner---Non-preparing of Mashirnama at the time of recovery or subsequently, by the Investigating Officer---Accused was charged for recovery of 1200- grams of Charas from his possession---Sample of the Charas recovered was sent to the Chemical Examiner with an unexplained delay of four months---Neither any Mashimama was prepared nor any person from the locality was called for associating the arrest, recovery and seizure--Material in possession of prosecution did not, prima facie, make out a case ,against accused punishable with death or imprisonment for life and matter required further inquiry---Bail was allowed accordingly.

Abdul Majid v. The State 198 SCMR 458; State through Advocate-General, Sindh v. Bashir and others PLD 1097 SC 408 and Mst. Fahmida v. The State 1997 SCMR 947 and Hafiz Khuda Bakhsh and another v. The State PLD 1988 SC 413 ref.

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

----S. 51---Criminal Procedure Code (V of 1898), S.497---Bar to grant of bail---Prima facie no case punishable with death was made out against the accused---Effect---Where evidence in possession of the prosecution did not; prima facie, make out such case, bar contained in S.51, Control of Narcotic Substances Act, 1997 was not applicable.

Muhammad Yousuf Leghari for Applicant.

Agha Khuda Bux, Asstt.

A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 717 #

2000 P Cr. L J 717

[Karachi]

Before Saiyed Saeed Ashhad and Sarmad Jalal Osmany, JJ

MUHAMMAD INAMUL HAQUE---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.695 of 1999, decided on 26th July, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/337/120-A/109---Bail--Absence of accused on one date of hearing in the Court was neither deliberate nor intentional---During twenty months when the accused remained on bail, he did not misuse the benefit of bail and regularly attended the Court---Father of accused due to lapse of memory or inadvertence could not have filed the ~ application for adjournment in the Court on the aforesaid date when bail already granted to accused on the ground of statutory delay was recalled---Bail was allowed to accused in circumstances.

Sardar Muhammad Ishaque for Applicant.

Jalil Hashmi, A.A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 721 #

2000 P Cr. L J 721

[Karachi]

Before Saiyed Saeed Ashhad and Raja Qureshi, JJ

YOUNUS HABIB ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.401 of 1998, heard on 20th July, 1998.

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

----S. 497---Penal Code (XLV of 1860), S.420/409/467/109---Bail, gent of---Accused being a banker was charged with fraudulent transactions and getting huge amounts dishonestly transferred into his accounts---Evidence and material in possession of the prosecution did not prima facie connect the accused with the offence---No reasonable ground existed to believe the accused to be guilty of an offence punishable with death, imprisonment for life or for ten years---Case of the accused being one of further inquiry bail was allowed accordingly.

Abdul Mujeeb Pirzada alongwith S. Khalid Shah for Applicant.

Syed Ta.Kiq Ali, Standing Counsel for the State.

2000 P Cr. L J 745

[Karachi]

Before Ghulam Nabi Soomro and Wahid Bux Brohi, JJ

ALI MUHAMMAD alias ALLOO---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.990 bf 1999, heard on 5th October, 1999.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 9, 12, 13, 20 & 21---Bail, grant of---Accused and co-accused at the relevant time were travelling in a car which on its stoppage was found containing five Kgs. of Charas in packets---Failure to associate private persons as Mashirs had been explained in the F.I.R.---Offence against accused, thus, called for death penalty---Nothing was mentioned in certificate issued by Doctor of District Jail that detention of accused would be detrimental or dangerous to his life---Accused, in circumstances, was not entitled to grant of bail.

1997 SCMR 361; 1999 SCMR 1279 and 1997 MILD 1473 ref.

2000 P Cr. L J 760

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

ABDUL JALIL---Appellant

versus, THE STATE---Respondent

Criminal Jail Appeal No. 36 of 1999, decided on 31st August, 1999.

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

----S. 6/9(c)---Appreciation of evidence---Charge framed in the case was bad in law as "Bhang" allegedly recovered -from the accused did not fall within the definition of "hemp" contained in S.2(D)(ii) of the Control of Narcotic Substances Act, 1997---F.I.R. was silent about the weighing and sealing of the recovered material at the spot ---Mashirs were the subordinates of the complainant---Prosecution evidence suffered from material discrepancies which had been ignored by the Trial Court---Accused was acquitted in circumstances.

Tariq Pervez v. The State 1995 SCMR 1345 ref.

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

----S. 6/9(c)---Evidence---Prosecution evidence---Burden of proof--Prosecution is duty bound to prove its case beyond any reasonable doubt and any single and slightest, doubt created in the case must go to the accused which is sufficient to discredit the prosecution story and entitle the accused for acquittal.

Appellant in person.

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

Date of hearing: 24th August. 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 763 #

2000 P Cr. L J 763

[Karachi]

Before Muhammad Roshan Essani and S. A. Rabbani, JJ

HAZRAT KHAN---Appellant

versus

THE STATE---Respondent

Criminal Bail Application No.392 of 1999, decided on 10th September, 1999.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.6/7/8/9/12/13/14/15---Bail---F.I.R. could not be ruled out of consideration merely on account of the omission of a minor fact as the same did not necessarily require to have contained the minute details of the incident---Sending of the entire quantity of the recovered narcotics to the Chemical Examiner being not essential, omission thereof could not diminish the gravity of the offence---Sample sent to Chemical Examiner was found to be contraband narcotic on analysis---Deeper appreciation of evidence for purpose of bail was not permissible in law---Evidence of police personnel could not be ignored at bail stage unless discredited---Bail was declined to accused in circumstances.

Nasir Khan v. The State 1997 MLD 1473; Muhammad Usman and 2 others v. The State 1992 SCMR 489; State v. Bashir and others PLD 19.97

SC 408 and Aksar Khan v. The State 1995 MLD 1237 ref.

Abdul Ghafoor Mangi for Applicant

Shoib Ashraf on behalf of A. N. F.

PCRLJ 2000 KARACHI HIGH COURT SINDH 766 #

2000 P Cr. L J 766

[Karachi]

Before S.A. Rabbani, J

Haji ABDUL SATTAR---Appellant

versus

THE STATE and another---Respondents

Criminal Acquittal Appeal No.2 of 1999, decided on 12th October, 1999.

West Pakistan Arms Ordinance. (XX of 1965)---

----S. 13-D---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---State could only be the aggrieved party in case of acquittal of accused from a charge under S. 13-D of the Arms Ordinance, 1965 and no individual could be an aggrieved person in such a case for the purpose of S.417(2-A), Cr.P.C.---Appeal against acquittal having been filed by a person not authorised by law to do so, and same being not maintainable for that reason, was dismissed.

Mrs. Shiraz Iqbal for Appellant. Arshad Lodhi, A.A.-G. for the State.

Miss Akhtar Rehana for Respondent No.2.

Date of hearing: 12th October, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 779 #

2000 P Cr. L J 779

[Karachi]

Before Abdul Hameed Dogar and Wahid Bux Brohi, JJ

SARWAR KHAN---Appellant

versus

THE STATE---Respondent

Special Anti-Terrorism Appeals Nos.24, 30, 31, 32 and Confirmation Case No.(sic) of 1999, decided on 30th September, 1999.

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

----S. 302---Appreciation of evidence---Sentence---Death of the deceased was proved to be the result of fire-arm injuries---Ocular account furnished by complainant and other eye-witnesses attributing firing at the deceased to one specified accused was an afterthought---Firing was said to have been made by the four culprits while sitting inside the car and the fact as to who caused the injuries to the deceased was shrouded in mystery, the benefit of which could be availed of by the accused who according to the case was not the sole culprit who fired at the deceased---Sentence of death of accused was reduced to imprisonment for life in circumstances.

(b) West Pakistan Arms Ordinance (XX of 1965)---

----S. 13-D---Criminal Procedure Code (V of 1898), S.342---Important incriminating piece of evidence not put to accused while recording his statement under S.342, Cr.P.C.---Effect---No question had been specifically put to accused in his statement under S.342, Cr.P.C. by the Trial Court that he was asked to produce licence for the arm and ammunition recovered from him and that he failed to produce the same---Trial Court had also not put to other accused the question with regard to possessing valid licences for the recovered arms and their failure to produce the same---Mandatory provisions of S.342, Cr.P.C., thus, were not complied with---Accused were acquitted in circumstances.

Pirano v. The State 1972 PCr.LJ 1652; Sajjad Ahmed and another v. The State 1992 SCMR 408 and Munawar Hussain v. The State 1991 SCMR 1601 ref.

----S. 342---Non-compliance of S.342, Cr.P.C.---Effect---Important incriminating piece of evidence having not been put to accused in his statement under S.342, Cr.P.C. could not be taken into consideration against him.

Shaukat H. Zubedi; Sardar Muhammad Ishaque and Mrs.

Mahjabeen Farzana for Appellants.

Syed JAW A. Hashmi, Asstt. A.-G. for the State.

Date of hearing: 30th September, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 806 #

2000 P Cr. L J 806

[Karachi]

Before Rasheed Ahmed Razvi, J

MEHMOOD ALI KHAN---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 1385 of 1998 and Special Case No.900 o 1997, decided on 27th January, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497(1), third and fourth provisos---Offences Against Property (Enforcement .of Hudood) Ordinance (VI of 1979), S.20---Bail---Statutory delay---Accused was attributed the role of car snatching in the F.I.R. which was an act of terrorism affecting the society at large---Provision of third proviso to S.497(1), Cr.P.C. having been governed by its fourth proviso which barred the grant of bail to an accused person involved, in' terrorism, accused was not entitled to bail under the law on the ground of statutory delay---Bail was declined to accused accordingly.

Muhammad Shafique v. The State 1998 PCr.LJ 1299; Moundar and others v. The State PLD 1990 SC 334; Umar Draz and another v. The State 1997 SCMR 885; Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Imtiaz Ahmad v. The State PLD 1997 SC 545 ref.

Khawaja Manzoor for Applicant.

Muhammad Ismail Memon for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 842 #

2000-P Cr. L J 842

[Karachi]

Before S.A. Rabbani, J

ABDUL SALAM IRFAN---Applicant

versus

THE STATE---Respondent

Bail Application No. 1059 of 1999, decided on 15th October, 1999

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Ball---Accused was not named in the F.I.R. and some other persons were nominated therein as suspected culprits---No eye-witness of the murder was available--Prosecution case rested on the last seen evidence, but identification of accused was not admittedly indicated from the police file---Case against accused in circumstances required further inquiry and he was admitted to ball accordingly.

Abdul Saleem v. The State 1998 SCMR 1578 ref.

Sardar Muhammad Ishaque for Applicant.

Muhammad Qasim Mirjat, A.A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 886 #

2000 P Cr. L J 886

[Karachi]

Before Abdul Hameed Dogar, J

SULEMAN and another---Applicants

versus

SUB-DIVISIONAL MAGISTRATE, LARKANA and another---Respondents

Criminal Miscellaneous Applications Nos.113 and 114 of 1999, heard on 22nd November, 1999.

Sindh Crimes Control Act (IV of 1975)---

----S. 14---Criminal Procedure Code (V of 1898), S.561-A---Quashing of proceedings---Vague allegations that accused were thieves, dependent upon Bhung money and were associates with other criminals and pendency of one criminal case against them under S.14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 were not convincing arid sufficient grounds to initiate proceedings against them under S.14 of the Sindh Crimes Control Act, 1975---Tribunal had also not complied with the mandatory provisions of Ss.5 & 6 of the said Act and in spite of issuing summons had issued non-bailable warrants of accused---Proceedings pending against the accused before the Tribunal were quashed in circumstances.

Krishan v. Tribunal and S.D.M. City, Hyderabad 1980 PCr.LJ 1198; Amir Ali and 22 others v. The State 1986 PCr.LJ 30 and Nisar v. The State 1996 PCr. LJ 102 ref.

Muhammad Saleem Jessar for Applicants.

Altaf Hussain Surahio for the State.

Date of hearing: 22nd November, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 894 #

2000 P Cr. L J 894

[Karachi]

Before Rana Bhagwan Das and Mushir Alam, JJ

ZULFIKAR ALI SHAH and others---Appellants

versus

THE STATE and others---Respondents

Criminal Appeals Nos.69, 71, 75 of 1984 and 27 of 1985, decided on 27th October, 1999.

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

----S. 148---Appreciation of evidence---Rioting---Evidence on record had fully established that accused were duly armed with deadly weapons i.e. Lathi, hatchet and gun in a manner that could justify formation of an unlawful assembly for the commission of rioting---Presence of accused at time and place of incident as alleged by prosecution was not controverted--Trial Court, in circumstances; had rightly found accused guilty of offence of rioting.

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

----Ss. 302/307/114/148 & 149---Appreciation of evidence---Evidence on record had fully proved that accused went to the scene of offence duly equipped with a premeditated motive and notion to dispossess complainant party from their lands---Intention or knowledge existed that act of accused was likely to cause death---Incident was witnessed by reliable and natural ocular witnesses whose presence at scene of offence could hardly be doubted---Testimony of ocular witnesses was fully supported by other prosecution witness who was attracted to place of incident on hearing fire shots and saw the body of deceased in injured condition---Veracity of such witnesses could not be shattered in lengthy and gruelling cross-examination---Mere circumstance that deceased was brother of first informant would not militate against credentials of said witness who being close kith and kin, was supposed to be fully conversant with incident and a natural person to set law into motion---Mere relationship of witnesses inter se or relationship with deceased, was of no consequence unless witnesses were shown to be hostile and inimically disposed towards the accused---Adequate corroborative medical evidence had lent support to convincing and reliable oral evidence---Strong motive of accused was available for causing death of deceased and making attempt at life of prosecution witness---Minor discrepancies in evidence, if any, deserved to be ignored and overlooked on overall assessment of evidence on record---Conviction of accused on charge against them, in circumstances, was neither unfounded nor suffered from any legal infirmity.

----Ss. 302, 307, 114, 148 & 149---Age as determining factor for involvement of a person in commission of crime ---Factum of age alone would not determine involvement of a . person in the commission of the crime, but intention and motive for commission of the crime and mens rea, might be instrumental in prompting person .to commit an act---Question of age generally was immaterial unless it could be shown' from evidence that accused was physically handicapped and disabled from moving about or acting in a particular manner.

(d) Criminal trial---

----Witness---Relationship---Mere relationship of witnesses inter se or relationship with deceased, was of no consequence unless witnesses were shown to be hostile and inimically disposed towards the accused.

Habibullah Shaikh for Appellant No.1 (in Criminal Appeal No.69 of 1984).

Abdul Kadir Shaikh for Respondent No.1 (in Criminal Revision No.27 of 1985). , Zawar Hussain Jaffri, Addl. A.-G.

Date of hearing: 20th October, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 907 #

2000 P Cr. L J 907

[Karachi]

Before Ghulam Nabi Soomro and Wahid Bux Brohi, JJ

ABDUR REHMAN MUBARAK---Appellant

versus

THE STATE---Respondent

Criminal Bail No. 1006 of 1999, decided on 14th October, 1999.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(b)--Bail, grant of---Rule of consistency---Applicability---Heroin powder weighing 1000 grams was recovered from the physical possession of the accused---Case of the co-accused could not be considered to be at par with that of the accused and, thus, the rule of consistency would not apply---Mere fact that the offence was punishable up to 7 years only and did not fall within the prohibitory clause attached to 5.497, Cr.P.C. would not entitle the accused person to be released on bail without taking into consideration other relevant factors of the case, particularly in the offences punishable under the Control of Narcotic Substances Act, 1997---Bail was refused in circumstances.

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

----S. 103---Control of Narcotic Substances Act (XXV of 1997), S.25--Recovery proceedings---Provisions of S.103, Cr.P.C.---Applicability--Recovery of narcotics from a running vehicle or made on a highway or roadsides---Validity---Provision of S.25, Control of Narcotic Substances Act, 1997 had excluded the application of 5.103, Cr.P.C.---Where recovery was made on a highway or roadsides or from a running vehicle, the provisions of S.103, Cr:P.C. were also not applicable.

State v. Muhammad Amin 1999 SCMR 1367 ref.

I.A. Hashmi for Petitioner. Shoaib M. Ashraf; Special Prosecutor, A.N.F. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 913 #

2000 P Cr. L J 913

[Karachi]

Before Rana Bhagwan Das and Mushir Alam, JJ

MIR MUHAMMAD ---Applicant

versus

S.H.O., POLICE STATION ABAD and 3 others---Respondents

Criminal Miscellaneous No.400 of 1998, decided on 30th September, 1999.

Criminal Procedure Code (V of 1898)---

----S. 491---Recovery of detenu unlawfully confined in police station--Detenu was found in police station at the time of raid by Commissioner and no entry regarding detention of detenu was available in the Roznamcha--Sub-Divisional Magistrate under whose order allegedly the detenu was arrested had denied the allegation in affidavit---Assistant Sub-Inspector Police had stated that detenu was handed over to him by the Sub-Divisional Magistrate and that before he could make any entry in the Roznamcha, Commissioner, raided police station and recovered the detenu---Assistant Sub-Inspector Police could not claim any protection merely on plea that he was in fact complying orders of Magistrate---Police Officer being responsible Officer, whose primary duty was to enforce law and order and obey lawful command, could not get away on such a ground---Responsibility of police functionaries was to obey and enforce law in a just and proper manner and to act in accordance with law---Police Officers were not obliged to obey illegal orders by whomsoever---Police Officer, in circumstances, was guilty of obeying. wrongful order of the Sub-Divisional Magistrate---Police Officer was directed to pay compensation of Rs.10,000 to detenu for his suffering.

Zahid Akhtar v. Government of Punjab PLD 1995 SC 530 ref.

Abdul Sattar Soomro for Applicant.

Mumtaz Ali Siddiqui for Addl. A.-G

PCRLJ 2000 KARACHI HIGH COURT SINDH 920 #

2000 P Cr. L J 920

[Karachi]

Before Wahid Bux Brohi and Abdul Ghani Shaikh, JJ

GHULAM NABI---Appellant

versus

THE STATE---Respondent

Criminal Jail Appeal No.29 of 1995, decided on 3rd September, 1999.

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

----Ss. 365-A/149 & 395/149---Appreciation of evidence---Accused being already known to the complainant, holding of identification test for the purpose of identifying the accused was meaningless and the same had no evidentiary or corroborative value---Evidence furnished by the abductees inspired confidence and not having been tainted with any motive for false implication of accused, identification of accused by them in the Court could be accepted as substantive evidence ---Abductees had been released after 23 days of their abduction on payment of ransom amount---Accused used to visit the forest daily to meet the other dacoits and impressed upon them that the abductees belonged to a rich family and a good ransom amount could be paid for their release and he, therefore, had shared common intention in the entire affair---Defence plea taken by accused about his false implication in the case was not substantiated on record---Appraisal of evidence by Trial Court did not suffer from any defect---Conviction of accused under 5.365-A, P.P.C. was consequently, upheld with reduction in his sentence---No offence, however, having been made out against the accused under S.395/149, P.P.C. he was acquitted of the said charge.

Gul Sher and others v. State 1968 SCMR 756; Hazaratullah and another v. .State 1968 SCMR 1361; Muhammad Iqbal v. State 1984 SCMR 930; Muhammad Hussain alias Hussaini v. State PLD 1995 Lah. 229; Abdul Khaliq v. State 1996 SCMR 1553; Abdul Karim alias Raja and another v. State 1996 PCr.LJ 503; Imdad Jakhro v. State 1994 PCr.LJ 1648; Hatim Ali Sheikh v. State PLD 1994 Kar. 414; Hayat v. State 1977 SCMR 340; Muneer Ahmed and another v. State 1998 SCMR 752; Muhammad Akbar v. State 1998 SCMR 2538; State v. Nazir Ahmed and others 1999 SCMR 610; 1995 PCr.LJ 73; PLD 1995 SC 1; Ali Dost v. The State 1994 PCr.IJ 950; Muhammad Ashraf v. State 1995 PCr.LJ 1968; PLD 1990 FSC 38; Zakir Khan v. State 1995 SCMR 1795 and 1995 PCr.LJ 1394 ref.

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

----Ss. 365-A/149 & 395/149---Appreciation of evidence---Identification parade---Distinction has to be made between a case in which the witness had only a fleeting glimpse of the accused who happened to be stranger and a witness who knew the accused previously or had met him several times--Court in the former case insists upon holding a proper identification parade, whereas in the latter case identification parade can be dispensed with as the witness can identify the accused even in the Court.

State v. Farman Hussain PLD 1995 SC 1 ref.

Asif Ali Soomro for Appellant.

Ali Azhar Tunio, Asstt. A.-G. for the State.

Date of hearing: 17th August, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 951 #

2000 P Cr. L J 951

[Karachi]

Before Muhammad Roshan Essani, J

MUHAMMAD ISHAQ KHAN---Applicant

versus

THE STATE---Respondent

Criminal Revision ,Application No. 117 of 1998, decided on 5th March, 1999.

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

----S. 217/218/34---Prevention of Corruption Act (II of 1947), S.5(2)--Criminal Procedure Code (V of 1898), Ss.439 & 203---Complaint dismissed by Trial Court---Validity---Dismissal of complaint---Principles---Contention that Special Court had erred in law by dismissing the complaint without holding preliminary inquiry and examining the prosecution witnesses cited in the complaint was misconceived---Where the Court on receiving the complaint and after recording the statement of the complainant under S.200, Cr.P.C., had found that no prima facie case was made out and that holding of preliminary inquiry as contemplated under S.202, Cr.P.C. would be an exercise in futility, it could dismiss the complaint under 5.203, Cr.P.C.---For taking cognizance of the matter under S.204, Cr.P.C. or for dismissal of complaint under S.203, Cr.P.C. it was not condition precedent that the Court must examine witnesses cited in the complaint as laid down under S.202(4), Cr.P.C.---Sole criterion was satisfaction of the Court about the correctness of the complaint or otherwise---No offence under 5.217/218/34, P.P.C. read with S.5(2) of the Prevention of Corruption Act, 1947, prima facie appeared no have been made out from the plain reading of the complaint---Trial Court had, thus, rightly dismissed the complaint---Revision petition was dismissed accordingly.

Shamim v, The State PLD 1966 Sr, 178 ref.

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

----S. 200---Aim and object of S.200, Cr.P.C. stated. Aim and object of section 200, Cr.P.C. is to protect the public against false, frivolous or vexatious complaints filed against them in original Courts and the Magistrates must not lightly accept written complaints and proceed to issue processes until they have thoroughly sifted the allegations made against the accused and are satisfied that a prima facie case has been made out against those who are accused of criminal offences.

Shamim v. The State PLD 1966 SC 178 ref.

Gul Zaman Khan for Applicant.

S. Jalil Hashmi, Asstt. A.-G. for the State.

Date of hearing: 25th February, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 956 #

2000 P Cr. L J 956

[Karachi]

Before Muhammad Roshan Essani and Abul Inam, JJ

XIOMORIA MARIA DE ARMAS TROJILLO and another---Applicants

versus

THE STATE---Respondent

Applications Nos. 139 and 140 of 1998, decided on 24th August 1998.

Criminal Procedure Code (V of 1898)--- , ----Ss. 403 & 561-A---Customs Act (IV of 1969), Ss.2(5) & 156(1)(8)--Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7 & 9(c)--Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4---Constitution of Pakistan (1973), Art. 13(1)---Principle of double jeopardy--Applicability---Quashing of proceedings---Accused who were proceeded against and were convicted by Court of Special Judge (Customs and Taxation) for offences of attempting to smuggle heroin and for possessing heroin had contended that once of attempting to smuggle heroin and possessing heroin being one and the same offence, challan in second F.I.R. regarding offence of possessing heroin was violative of Art. 13(a), Constitution of Pakistan (1973) and was also in contravention of S.403, Cr.P.C. as their trial amounted to double jeopardy which was not warranted by law and that principle of "autrefois acquit" and "autrefois convict" was applicable to their case and they could not be vexed twice for the same offence---Validity---Offence of smuggling of heroin was punishable under Customs Act, 1969 whereas possessing narcotic drugs (heroin) was punishable under Control of Narcotic Substances Act, 1997---Offences against accused, in circumstances, were not same but were distinct offences---Second trial would only be barred when offence was same, but if offence was distinct, accused could be tried before two different Courts under two different enactments on basis of common set of facts and trial would not be barred---Accused were not sent up to stand trial in different Courts, under same offence but under distinct and different offences---Trial of accused, in circumstances, was not barred under Art. 13(a) of Constitution of Pakistan (1973) or S.403, Cr.P.C. or on principle of "double jeopardy", "autrefois acquit" or "autrefois convict" and "nemo debet bis vexari pro una et eadem causa"---Merely because accused were sent up for trial on common set of facts, was no ground for quashing of proceedings pending against them in Court of Special Judge for the trial of cases under Control of Narcotic Substances Act, 1997.

Abdul Razzaq Malik v. WAPDA PLD 1973 Lah. 188.; Peer Bux v. The State 1979 PCr.LJ 24; Muhammad Ashraf v. The State 1989 PCr.LJ 821; Sherin Bacha and others v. Namoos Iqbal and others PLD 1993 SC_ 247; Muhammad Ashraf and others v. The State 1995 SCMR 626; The State v. Anwar Khatak and others PLD 1990 FSC 62; Karimi kahmatullah v. The State 1994 PCr.LJ 428 and Archuleia Tanya Pauline and 2 others v. The State PLJ 1996 Cr.C. (Karachi) 597 ref.

Rana M. Shamim for Applicants.

Syed Tariq Ali, Standing Counsel and Habib Ahmed, A.A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 994 #

2000 P Cr. L J 994

[Karachi]

Before Rasheed Ahmed Razvi, J

RAFIQUE AHMED ---Appellant

versus

THE STATE---Respondent

Bail Before Arrest Application No.234/Criminal Bail Application No.654 of 1999, decided on 1st September, 1999.

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

----Ss. 497, 498 & 498-A---"Bail after arrest", "pre-arrest bail" and "protective bail" ---Practice and procedure---Applications for bail arising after arrest are governed by Ss.497 & 498-A, Cr.P.C., while application for pre-arrest bail or protective bails is governed by Ss.498 & 498-A, Cr.P.C.

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

----S. 498---Pre-arrest bail---Apprehension of arrest and humiliation at the hands of police---Grounds of apprehension of harassment or illegal arrest are available and remain in the field even after the submission of the challan in the Court---Where an accused person has been involved for some ulterior motives or out of mala fides, such state of affairs will continue in respect of the fact whether he has been arrested or not or whether any final or interim challan has been submitted---When a person has been maliciously or falsely involved in a case, his harassment or humiliation will continue till he is acquitted by the Court.

----S. 498---Penal Code (XLV of 1860), S.506/448/147/148---Pre-arrest bail---View of Sessions Court that after submission of challan ground of apprehension of harassment or illegal arrest had vanished was not tenable and it was not justified to refuse bail to accused on such flimsy ground--Complainant had assumed his charge under the orders of the Head Office which was allegedly declined by the accused for which the complainant had lodged the report that the accused had attacked his office alongwith some other persons in his absence-..Incident was unwitnessed-..FI,R, was lodged after a lapse of 30 days ...Allegations of mala fides and ulterior motive were supported by the facts. Interim pre-arrest bail granted to accused was confirmed in circumstances.

Sadiq Ali v. The State PLD 1966 SC 589; Muhammad Ayub v. Muhammad Yaqub and another PLD 1966 SC 1003; Gul Muhammad and others v. The State PLD 1959 (W.P.) Pesh. 49; Rai Saheb Bishambharnath Tandon and others v. The King-Emperor AIR 1924 Oudh 435; Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599; Jam Sadiq Ali v. The State 1989 PCr.LJ 1910; The Crown v. Khushi Muhammad PLD 1953 FC 170; Ghulam Sadiq v. The State 1989 PCr.LJ 2035; The State v: Malik Mukhtar Awan 1991 SCMR 322; Malik Mukhtar Awan v. The State 1990 PCr.LJ 617 and Muhammad Anwar Samma and another v. The State 1976 SCMR 45 ref.

Muhammad Sharif and 4 others v. The State 1979-PCr.LJ Note 7 at p.5 and Taj Muhammad v. The State PLD 1976 Pesh. 112 not fol.

S. U. Faruqui for Applicant.

Naraindas C. Motiani: Amicus curiae.

Muhammad Saad Qureshi for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1004 #

2000 P Cr. L J 1004

[Karachi]

Before Abdul Hameed Dogar and Wahid Bux Brohi, JJ

ABDUL ZAHIR alias ZAHIR SHAH and 2 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.51 of 1995, decided on 24th September, 1999.

Penal Code (XLV of 1860)---

----Ss. 365-A/109/34 & 365/34---Appreciation of evidence---Evidence about abduction of the abductee by the accused was trustworthy---Accused who had all along guarded the abductee was also constructively liable for the offence of abduction---Testimony of the abductee and other prosecution witnesses regarding the abduction of the abductee from his Show Room being satisfactory and inherently reliable, the same could not be disbelieved simply because their evidence on the point of demand of ransom was incredible--Demand of ransom which was the distinctive feature of the offence under 5.365-A, P.P.C. having not been proved on the record, conviction of accused under 5.365-A, P.P.C. was altered to 5.365, P.P.C. and their sentence of death was reduced to seven years' R.I. each with fine.

State v. Farman Hussain PLD 1995 SC 1 distinguished.

Syed Saeed Muhammad v. The State 1993 SCMR 550; Naseer Ahmed v. The State 1994 SCMR 995; Ahmed Khan v. Nazir Ahmed 1999 SCMR 803; Zulfiqar Ali v. The State 1993 SCMR 2046 and Ghulam Sikandar v. Mama Raz Khan PLD 1985 SC 11 ref.

A.Q. Halepota for Appellants.

Asstt. A.-G. for the State.

Date of hearing: 9th September, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1019 #

2000 P Cr. L J 1019

[Karachi]

Before Muhammad Roshan Essani and M. Ashraf Leghari, JJ

JEHANZAB KHAN and 3 others---Applicants

versus

THE STATE---Respondent

Criminal Revision No.78 and Miscellaneous Application No. 1051 of 1999, decided on 17th August, 1999.

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

----Art. 3/4---Control of Narcotic Substances Act (XXV of 1997), S.9--Submission of challan in the Court of Special Judge---Validity---Huge quantity of contraband "Charas" having been recovered from the accused, the offence was triable by the Special Court under S.9 of the Control of Narcotic Substances Act, 1997---Challan could at any time be returned to police for presentation before the Court having jurisdiction in the matter---Submission of challan in the Special Court did not suffer from any illegality and the same had not caused any prejudice to the accused---Recovery of the "Charas" by the Inspector was not in ~ violation of any provision of the aforesaid Act--Impugned order passed by the Sessions Court was well-founded and free from every infirmity=--Interference was declined by High Court.

Gulzar Ahmed v. The State 1993 PCr.LJ 185; Muhammad Alam v. Additional Secretary to Government of N.-W.F.P. and 4 others PLD 1987 SC 103; Mehar Khan v. Yaqub Khan and another 1981 SCMR 267 and The State v. Muhammad Ashraf Criminal S.M. Revision No.10 of 1998 (unreported) ref.

M. Qadir Khan for Applicants.

Syed Jalil Ahmed Hashmi, A.A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1031 #

2000 P Cr. L J 1031

[Karachi]

Before Syed Deedar Hussain Shah, J

AYAZ ALI and 2 others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.S-86,of 2000, decided on 16th March, 2000.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.379---Pre-arrest bail, grant of--E.LR. was filed after three days of the alleged occurrence---Statements of ,witnesses under S.161, Cr.P.C. were recorded by police after twenty days from the registration of case against accused and no explanation for such inordinate delay was given by prosecution---Delay so occasioned by prosecution in discharging their duties had cast serious doubt on veracity of prosecution evidence---Reasonable suspicion having been created, accused were entitled to concession of pre-arrest bail.

Muhammad Saleem Jessar for Applicants.

Ghulam Dastagir Shahani, Addl. A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1036 #

2000 P Cr. L J 1036

[Karachi]

Before Ghulam Nabi Soomro, J

KHALID MEHMOOD---Appellant

versus

THE STATE---Respondent

Special Criminal Appeal No.47-of 1998, decided on 5th October, 1999

(a) Customs Act (IV of 1969)---

----S. 156(1)(8)---Appreciation of evidence---Prosecution evidence and defence evidence both having gone unchallenged, prosecution could not be allowed to put up a better claim of truthfulness than the defence--Prosecution evidence regarding recovery of heroin had glaring contradictions---Suit-case of accused from which heroin was recovered was not produced in Court at the trial---Undertaking a journey on International Route by the accused without any currency or other items of daily use did not appeal to reason---Defence evidence including the statement of accused on oath having not been challenged could be legally construed to have been accepted by the prosecution---Suppression of truth by the prosecution was alone sufficient to hold its case as doubtful---Accused was acquitted in circumstances.

1987 PCr.LJ 30; Rab Nawaz and others v. The State PLD 1994 SC 858; Safdar Ali v. Crown PLD 1953 FC 93 and Nadeem-ul-Haq Khan v. The State 1985 SCMR 510 ref.

(b) Criminal trial---

---- Appreciation of evidence---Principles---Benefit of doubt---Court is duty bound in a criminal case to review the entire evidence led by the prosecution and the defence and after examination of the same if the Court is of the opinion that the defence version might be true, the accused becomes entitled to the benefit of doubt, not as a matter of grace but as of right, because the prosecution has failed to prove its case beyond reasonable doubt.

Nadeem-ul-Haq Khan v. The State 1985 SCMR 510 ref.

Miss Masooda Siraj for Appellant.

Syed Mamnoon Hassan, Dy. A.-G. for the State.

Date of hearing: 24th August, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1044 #

2000 P Cr: L J 1044

[Karachi]

Before Hamid Ali Mirza and Abdul Hameed Dogar, JJ

THE STATE---Appellant

versus

MUHAMMAD BABAR LODHI and another---Respondents

Special Criminal Anti-Terrorism Appeal No.68 of 1999, heard on 27th August, 1999.. , Penal Code (XLV of 1860)---

----S. 302/392/34---West Pakistan Arms Ordinance (XX of 1965), S.13-D--Criminal Procedure Code (V of 1898), S.417(1)---Anti-Terrorism' Act (XXVII of 1997), S.25(4)---Appeal against acquittal---Confession allegedly made by accused was not recorded in accordance with law---Evidence of last seen was tainted one---Recoveries from the place of incident had not been properly proved---Identification test' of the accused was held belatedly--Despite the recovery of the pistol allegedly used in the commission of the murder having been effected in a thickly populated area, no independent Mashir was joined in the recovery proceedings---No entry in the Daily Diary regarding departure of the Police Mashirs from the, police station was produced in Court to prove their presence at the time of recovery of the said pistol---Mere fact that no such suggestion was made to the concerned witness would not mean that the prosecution had discharged its burden of proving its case---Neither any miscarriage of justice was shown to have occasioned in the case, nor any misreading of evidence by the Trial Court was pointed, out---Appeal against acquittal of accused was dismissed in circumstances.

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

Mumtaz Ali Khan Deshmukh for Respondent.

Date of hearing: 27th August, 1999..

PCRLJ 2000 KARACHI HIGH COURT SINDH 1146 #

2000 P Cr. L J 1146

[Karachi]

Before Abdul Hameed Dogar and Muhammad Roshan Essani, JJ

MUHAMMAD HANIF---Appellant

versus

STATE---Respondent

Criminal Appeal No.69 of 1999, heard on 20th October, 1999.

Penal Code (XLV of 1860)---

----S. 302/395/396---Anti-Terrorist Act (XXVII of 1997), S.25---Appeal--Accused who had not pressed appeal and had withdrawn same, had only requested that sentence awarded to him be ordered to run concurrently to which prosecution had no objection---Accused was convicted on two counts, firstly under S.302(b), P.P.C. with imprisonment for life and fine and secondly under S.395, P.P.C. to suffer R.I. for ten years with fine---Murder having taken place while committing dacoity, accused should have been convicted and sentenced under S.396, P.P.C. instead of S.395, P.P.C.--Sentence and conviction was amended accordingly with decision that sentences would run concurrently.

Shahadat Awan for Appellant.

Syed Jalil A. Hashmi, Asstt. A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1148 #

2000 P Cr. L J 1148

[Karachi]

Before Ghulam Nabi Soomro, J

MUHAMMAD ISHAQUE---Petitioner

versus

SHAHZAD ALI and 2 others---Respondents

Constitutional Petition No.S-381 of 1999, decided on 30th August, 1999.

Criminal Procedure Code (V of 1898)---

----S. 154---Constitution of Pakistan (1973), Art.199---Constitutional petition---Station House Officer, without entering the fact of complaint and enquiry in Station Diary of Police Station, tried to arrest son of the petitioner and was harassing him---Police Officer in absence of any F.I.R. against son of petitioner, could. not have taken such a recourse and could not arrest and proceed in the matter against him otherwise than under due course of law--Constitutional petition was allowed accordingly.

Mehmood Akhter Qureshi for Petitioner.

Jawed Akhtar for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1150 #

2000 P Cr. L J 1150

[Karachi]

Before Abdul Ghani Shaikh and Muhammad Roshan Essani, JJ .

Mst. SAMINA AKHTAR---Petitioner

versus

SHAH MUHAMMAD and 8 others---Respondents

Constitutional Petition No.D-709 of 1999, decided on 24th January, 2000.

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

Art. 199---Constitutional jurisdiction---Scope---Constitutional jurisdiction of High Court under Art. 199 of the Constitution is purely discretionary and discretion has to be exercised with great care and caution and not as a matter of course---Such power is not intended for deciding the disputed questions of facts and thwart the procedural law.

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

----S. 10(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Quashing of proceedings---Validity of Nikahnama, determination of---High Court under its Constitutional jurisdiction could not embark upon the jurisdiction of Family .Court which was competent to decide about the existence or non-existence of the marriage or validity and invalidity of the Nikahnama---Dispute relating to false marriage lay wholly within the jurisdiction of Family Court which could be moved by the petitioner by way of a suit for jactitation of marriage---Accused regarding her grievance against registration of the F.I.R. had not approached the Trial Court under 5.249-A or 265-K, Cr.P.C. which remedy was available to her and in the presence of such alternate remedy the Constitutional petition was not maintainable--Provisions of Art. 199 of the Constitution could not be resorted to circumvent the due process of law---Constitutional petition was dismissed accordingly.

Syed Muhammad Iqbal Hussain Shah v. Mst. Farhat Jehan and others 1991 CLC 1787; A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353 and Khalid Mukhtiar v. The State PLD 1997 SC 275 ref.

----Art. 199---Constitutional jurisdiction---Scope---Jurisdiction under Art. 199 of the Constitution is not an additional or alternate jurisdiction and when alternate remedy is available then Constitutional petition is not maintainable.

(d) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Powers of High Court under Art.199 of the Constitution, though are very wide, but they are not supposed to be exercised to override the alternate remedy.

Khadim Hussain Umar for Petitioner.

Kamaluddin for Respondents Nos.2 to 8.

Mian Khan Malik, Addl. A.-G.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1155 #

2000 P Cr. L J 1155

[Karachi]

Before Wahid Bux Brohi, J

GHULAM MUHAMMAD ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 109 of 1999, heard on 24th February, 2000.

Penal Code (XLV of 1860)---

----S. 394---Offences Against Property (Enforcement, of Hudood) Ordinance (VI of 1979), Ss.20 & 24---Constitution of Pakistan (1973), Art.203-G--Appeal before. High Court ---Maintainability---Challan had been submitted in the Court against the accused under Ss. 393 & 454, P.P.C. read with S.17(2) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979---Sessions Court after framing the charge and conducting the trial found that the case did-not fall within the purview of an offence liable to Hadd and it consequently convicted the accused under 5.394, P.P.C. and sentenced him to undergo four years' R.I. as Ta'zir with fine---Observation made by Trial Court in the impugned judgment that "no evidence was available to bring the' case within the purview of Hudood Laws", had no doubt led to a confusion, otherwise the sentence had squarely been awarded to accused under S.20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and in view of S.24 of the said Ordinance the same was appealable to the Federal Shariat Court as the sentence had exceeded two years' R.I.---Article 203-G of the Constitution had also created a bar in this respect conferring exclusive jurisdiction on Federal Shariat Court in such matters---High Court, therefore, was not competent to hear and decide the appeal which was directed to be returned to the accused for presenting the same before the Federal Shariat Court.

Muhammad Saeed Azhar v. Martial Law Administrator, Punjab 1979 SCMR 484; Falak Sher v. The State 1996 PCr.LJ 804; Pirak v. The State 1997 PCr.LJ 1900 and Muhammad Hussain v. Muhammad Ramzan and others PLD 1982 FSC 11 ref.

Mirza Ghiyasuddin Beg for Appellant.

Mian Khan Malim, Addl. A.-G. for the State.

2000 P Cr. L J 1174

[Karachi]

Before Muhammad Ashraf Leghari, J

Moulvi NAZAR MUHAMMAD ---Applicant

versus

THE STATE---Opponent

Criminal Bail Application No.741 of 1999, decided on 9th March, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324---Bail, grant of ---F.I.R. was delayed by 11-1/2 hours .without any plausible explanation---Accused was in ,custody for the last about seven months---Offence according to medicate certificate fell under Shajjah-e-Mudihah which was punishable with five years' R.I.---Case of accused as such was not hit by the prohibition contained in S.497(1), Cr.P.C.---Accused was granted bail circumstances.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Jai Muhammad v. Haji- Noor Jamal and another 1998 SCMR 500 ref.

Allah Bachayo Soomro for Applicant.

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

PCRLJ 2000 KARACHI HIGH COURT SINDH 1178 #

2000 P Cr. L J 1178

[Karachi]

Before Muhammad Roshan Essani, J

MEHAR and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.654 of 1999, decided on 8th February, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/324/504/34---Bail, grant of--Accused had not caused any injury to the deceased, but had only injured the prosecution witnesses alongwith other accused---Injuries sustained by the prosecution witnesses according to their medico-legal reports did not commensurate with the number of accused and the blows ascribed to the accused---Hatchet and Khahi recovered from the accused during investigation were not blood-stained---Incident was the outcome of a sudden flare-up--Vicarious liability of accused in the occurrence could be ascertained by the Trial Court after recording evidence---Accused were in jail for the last more than 1-1/2 years---Bail was allowed to accused in circumstances.

Jaffar and others v. The State 1980 SCMR 784; Nosherwan alias Nosha v. The State 1994 PCr.LJ 1476; Malik Muhammad Ishaque and another v. The State 1995 PCr.LJ 933 and Asghar Masih and another v. The State 1995 PCr.LJ 544 ref.

Muhammad Jumman Memon for Applicants.

Mukhtar Ahmed Khanzada on behalf of A.-G.. for the State,

PCRLJ 2000 KARACHI HIGH COURT SINDH 1180 #

2000 P Cr. L J 1180

[Karachi]

Before Muhammad Roshan Essani, J

Syed GOHAR ALI SHAH---Applicant

versus

THE STATE and 6 others---Respondents

Criminal Miscellaneous Application No. 105 of 1999 and Miscellaneous Applications Nos.583 and 653 of 1999, decided on 23rd August, 1999.

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

----Ss. 145 & 561-A---Quashing of proceedings---Accused (petitioner) had himself initiated the proceedings and the impugned order of sealing the disputed property had been passed at his instance---Petitioner should have waited for the decision of the Trial Court and should not blow hot and cold at the same time by invoking the inherent jurisdiction of High Court to obtain the possession of disputed premises on the report of S.H.O. who was alleged to be a partisan---Petitioner, in his application moved before the Trial Court, had admitted the existence of imminent, apprehension of breach of peace and likelihood of bloodshed due to dispute over the possession of the said property---High Court under S.561-A, Cr.P.C. could not assume the role of Trial Court and evaluate the evidence to determine the right to possession of a party over the disputed property by way , of a detailed inquiry---Impugned order passed by Magistrate under S.145(4), Cr.P.C. did not suffer from any legal or factual infirmity---Petition for quashing of proceedings was misconceived and premature and the same was dismissed accordingly.

A. Habib Ahmed v. M.K. alias Scott Christian and 5 others PLD 1992 SC 353 and Sheikh Mehmood Saeed and others v. Amir Nawaz Khan and others 1996 SCMR 339 ref.

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

----S. 145---Landlord and tenant---Dispute concerning land etc. likely to cause breach of peace---Landlord for the eviction of tenant cannot initiate the proceedings under S.145, Cr.P.C.

----S. 145---Civil proceedings cannot be a bar for initiating proceedings under 5.145, Cr.P.C. if there is imminent apprehension of breach of peace over, the subject-matter of dispute.

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

----S. 561-A---Inherent jurisdiction of High Court---Jurisdiction under S.561-A, Cr:P.C. is not an additional or alternate jurisdiction and where alternate remedy is available application under S.561-A, Cr.P.C. cannot be entertained---Inherent powers of High Court, though are very wide, but the same are not supposed to be exercised to override the express provisions of law.

A. Habib Ahmed v. M.K. alias Scott Christian and 5 others PLD 1992 SC 353 and Sheikh Mehmood Saeed and others v. Amir Nawaz Khan and others 1996 SC MR 339 ref.

Gul Zaman Khan for Applicant. Chand Muhammad and Saleh Panhwar for Respondents. S. Farooq Abdullah for the Intervener.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1191 #

2000 P Cr. L J 1191

[Karachi]

Before Muhammad Roshan Essani and Abdul Ghani Shaikh, JJ

PUNHOON KALHORO --- Applicant

versus

THE-STATE ---Respondent

Criminal Bail Application No.783 and Miscellaneous Application No. 1326 of 1999, decided on 19th January, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324/504/352/147/149---Bail--Accused was only alleged to have been backing dacoits in the F.I.R.--Accused had neither participated in the encounter between the police and the dacoits nor was present at. the time of incident--Nothing incriminating was secured from the possession of accused---Members of police party had not received any injury in the alleged encounter---Accused was no more required for the purpose of investigation---Complicity of accused in the commission of offence could be determined by the Trial Court after recording evidence--Accused was admitted to bail in circumstances.

Allah Bachayo Soomro for Applicant.

Agha Khuda Bux, Asstt. A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1195 #

2000 P Cr. L J 1195

[Karachi]

Before Muhammad Roshan Essani and Abdul Ghani Shaikh, JJ

MUHAMMAD SABIR ROSHAN---Applicant

versus

THE STATE---Opponent

Criminal Miscellaneous Application No.389 of 1999, decided on 1st February, 2000.

(a) Criminal trial---

----Absconder---Fugitive from law and Courts loses some of the normal rights granted by the procedural as well as the substantive law---Conduct of the accused is very much relevant and cannot be ignored under any law or principle---Anyone, who by his conduct thwarts investigation or trial, is not eligible to any discretionary relief.

(b) Anti-Terrorism Act (XXVH of 1997)---

----Ss. 25, 31 & 32---Criminal Procedure Code (V of 1898), Ss.435, 439 & 561-A---Revisional or inherent jurisdiction of High Court not available to assail an order passed by Special Court---Sections 25, 31 & 32 of the Anti-Terrorism Act, 1997, which are to be read in conjunction with each other, do not- permit the order passed by Special Court to be challenged in revision or under inherent jurisdiction of High Court.

Criminal Revision Application No.26 of 1999 -ref.

----S. 295-A/295-13/295-C---Anti-Terrorism Act (XXVII of 1997), Ss.25, 31 & 32---Criminal Procedure Code (V of 1898), S.561-A---Quashing of proceedings---Order passed by Special Judge under Anti-Terrorism Act, 1997 could not be challenged by invoking inherent jurisdiction of High Court---Petition under S.561-A, Cr.P.C. for quashing of, proceedings was not maintainable and the same was dismissed accordingly.

Criminal Revision Application No.26 of 1999; Moulana Dost Muhammad v. The State 1976 PCr.LJ 184; The State v. Bashir and others PLD 1997 SC 408; Ahmed Sher and another v. The State PLD 1995 FSC 20; Muhammad Ashraf Khan Tareen v. The State 1996 SCMR 1747; Muhammad Ashfaq alias Chief v. The State 1998 PCr.LJ 1486; Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863; Muhammad Iqbal Toor v. Mian Muhammad Ashraf 1986 PCr.LJ 503 and Mst. Ghulam Zohra v. The State and others 1969 PCr.LJ 67 ref.

Qurban Ali Chuhan for Applicant.

Muhammad Azeem Panhwar for the State

Date of hearing: 12th January, 2000.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1201 #

2000 P Cr. L -J 1201

[Karachi]

Before Muhammad Roshan Essani and Abdul Ghani Shaikh, JJ

ABDUL LATEEF---Applicant

versus

THE STATE---Respondent

Criminal Revision Application No.67 and Miscellaneous Application No.94f of 1999, decided on 19th January, 2000.

Criminal Procedure Code (V of 1898)---

----S. 514---Penal Code (XLV of 1860), S.364-A/342/323/148/149-Forfeiture of surety bond---Petitioner (surety) had failed to produce the absconding accused before the Trial Court despite the grant of sufficient time to him for doing so by the Trial Court as well as by the High Court--Accused having been placed in the custody of the surety, the latter was responsible for producing the former in the Court' if and when so required failing which the surety would be liable to penalty under the law ---Conduct of the petitioner showed that he did not take any positive step to search for the accused and produce him before the Court but protracted the matter on one reason or another---Impugned order of Trial Court imposing the entire penalty of Rs.1,00,000 of bail bond upon the petitioner did not suffer from any illegality or factual infirmity in circumstances.

Muharram G. Baloch for Applicant.

Mian Khan Malik, Addl. A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1204 #

2000 P Cr. L J 1204

[Karachi]

Before Muhammad Roshan Essani, J

BACHANDO and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.797 of 1999, decided on 20th January, 2000

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail---Dead body of the deceased was not recovered at the instance of the accused---Complainant, who had discovered the dead body, was a stranger and he was not connected with the deceased or the accused---Incident being an un-witnessed one, no evidence was available as to where, when and who had killed the deceased--Medical report was silent about the time, period and duration of the death of the deceased---Names of accused did not appear in the F. I. R. ---Accused were not alleged to have demanded the ransom amount---Record did not disclose that during the relevant period the deceased was last seen with the accused near the place of recovery of his dead body---Confession allegedly made by accused before police was inadmissible in evidence---Accused were admitted to bail in circumstances:-

Abdul Saleem v. State 19,98 SCMR 1578; Muhammad Jamil v. Shoukat Ali 1996 SCMR 1685; Muhammad Akbar Tariq v. The State 1997 PCr.LJ 540; Rasool Bux v. Syed Safdar Ali Shah and others 1988 PCr.LJ 30 Abid and others v. The State 1983 PCr.LJ 912 and Feroz Muhammad Shah and others v. The State 1983 PCr.LJ 1944 ref.

Syed Madad Ali Shah for Applicants.

Agha Khuda Bux; Asstt. A.-G. for the State

PCRLJ 2000 KARACHI HIGH COURT SINDH 1209 #

2000 P Cr. L J 1209

[Karachi]

Before Muhammad Roshan Essani, J

SHOUBAN and 3 others---Petitioners

versus

SHAKEEL AHMED JAMALI, A.S.-I. and 10 others---Respondents

Constitutional Petition No.S-36 and Miscellaneous Applications Nos. 197 and 198 of 2000, decided on 10th February, 2000.

Constitution of Pakistan (1973)---

----Art.. 199---Constitutional petition---Action of the police for compelling the petitioner to produce the alleged abductee before them was sought to be declared to be without lawful authority on the ground that she was his lawfully wedded wife whose custody was handed . over to him by the Magistrate and they were living happily as husband and wife---Requisite documents including the copies of the Nikahnama and statement of the alleged abductee under S.164, Cr.P.C. were supplied to the respondents (police) in the Court in consequence whereof appearance of the alleged abductee before the Investigating Officer appeared to be immaterial---If the Investigating Officer at any stage of the investigation felt necessary to examine the abductee, he could do so with the prior permission of High Court---Constitutional petition was disposed of with the said observations.

M.M. Aftab for Petitioner. .

Mian Khan Malik, Addl. A.-G. for Respondents.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1212 #

2000 P Cr. L J 1212

[Karachi], Before Muhammad Roshan Essani, J

GUDDU alias ZULFIQAR---Applicant/Accused

versus

THE STATE---Opponent

Criminal Bail Applications Nos.65, 66 and 67 of 2000, decided on 16th March, 2000.

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

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance, (VI of 1979); S.17(3)---Penal Code (XLV of 1860), S.342/395---Bail, grant of---Complainant reported matter to police without loss of time--Complainant correctly picked up accused in identification parade---Alleged robbed articles and crime weapons were recovered from possession of accused during course of investigation---Accused, in circumstances, was not entitled to concession of bail.

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

----Art. 22---Identification test---Nature---Holding of identification test was not a requirement. of law but was only one of the methods to test veracity of evidence of an eye-witness who had an occasion to see accused and claimed to identify the culprit.

Muhammad Akbar v. The State 1998 SCMR 2538 ref.

----S. 497---Bail, giant of---Only tentative assessment was to be made and deeper appreciation was not called for, for the purpose of bail.

Nadir Hussain for Applicant.

Habibur Rasheed for A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1217 #

2000 P Cr. L J 1217

[Karachi]

Before Ghulam Rabbani, J

GUL MUHAMMAD and 4 others --- Applicants

versus

ZAWAR HUSSAIN and another---Respondents

Criminal Transfer Application No.2 of 2000, decided on 29th February, 2000.

Criminal Procedure Code (V of 1898)---

----S. 526---Penal Code (XLV of 1860), S.302/34---Transfer of case--Accused had sought the transfer of the case pending against them at Nawab Shah to Hyderabad or to Dadu on the ground of an apprehension of danger to their lives at the hands of the complainant party---Complainant had only two sons who had been allegedly killed by the accused for which they were facing the trial---Accused did not controvert the fact that both the parties were residents of the same surroundings---No specific date, time and place had been mentioned by the accused on which the complainant or any of his companions had advanced threats to them---No physical harm was alleged to have been caused to the accused for the past seven or eight years during their trial in the Court at Nawab Shah who had been safely reaching back to their destination on all dates of hearing---Grounds raised for transfer of the case did not seem to be well-founded in circumstances---Transfer application yeas dismissed accordingly.

Syed Jaffer Raza Naqvi v. The State 1996 MLD 606; Muhammad Arshad v. The State 1997 SCMR 949 and Ghulam Hyder v. Muhammad Sadiq W another PLD 1998 Kar. 126 distinguished.

Mst. Sharam Khatoon alias Hakim Zadi v. The State and 7 others 1970 SCMR 536 ref.

Faiz Muhammad Qureshi for Applicants.

Ghulam Shabir Memon for Respondent No. l.

Muhammad Azim Panwhar for Addl. A.-G., Sindh for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1227 #

2000 P Cr. L J 1227

[Karachi]

Before Muhammad Roshan Essani, J

RIAZ AHMED and 2 others---Applicants

versus

THE STATE---Respondent

Bail Application No.233 of 2000, decided on 27th March, 2000, (a) Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.392/34---Bail, grant of---Accused were apprehended by police when they were sitting in snatched car and said car was secured from possession of accused---Accused were correctly picked up by complainant in identification parade---Accused, in circumstances, were not entitled to concession of bail.

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

----S. 497---Bail, grant of---Principle--Only tentative assessment was to be made and deeper appreciation of evidence was not warranted by law for purpose of bail.

----Art: 22---Identification test---Nature---Identification test was not a requirement of law, but it was only one of the methods to test the veracity of evidence of an eye-witness who had an occasion to see accused and claimed to identify him.

1998 SCMR 2538 ref.

Gulzar Hassan for Applicant.

Jawed Akhtar on behalf of A.-G. for the State.,

PCRLJ 2000 KARACHI HIGH COURT SINDH 1230 #

2000 P Cr. L J 1230

[Karachi]

Before Muhammad Roshan Essani, J .

BASHIR DAWOOD and 2 others---Applicants

versus

TANVEER AHMED and another---Respondents

Criminal Miscellaneous Application No.284 of 1999, decided on 8th February, 2000.

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

----S. 420/406/506/34---Criminal Procedure Code (V of 1898), S.561-A--Quashing of proceedings---Business dealings existed between the parties who, on account of claims and counter-claims, were locked in litigation by way of civil suits which were pending adjudication in Civil Courts ---Privity of contract existed between the parties---Date, time and place of the .commission of the offence were not disclosed---Complaint was delayed by two years which had not been plausibly explained by prosecution--Fraudulent and dishonest intention/mens rea and inducement by way of misrepresentation were lacking in the case--:Matter on the face of it was purely of civil nature---Civil liability could not be enforced by criminal prosecution---Offence under S.506, P.P.C. being a distinct offence if not committed in the same transaction could not be tried with offence of cheating---Proceedings pending against the accused in the Court of Magistrate amounted to abuse of the process of Court in circumstances and the same were quashed accordingly.

Ikramuddin and 4 others v. The State and another 1984 PCr.LJ 2736; Ghulam Ali v. Javid and another 1989 PCr.LJ 507; Abdul Ghafoor and others v. Raeesuddin and another 1991 MLD 376; Mian Bakhsh Ellahi and others v. The State and others 1993 PCr.LJ 856; Abdul Majid v. Nawab Din 1973 SCMR 373; R.C.P. Guignard v: The State and another PLD 1963 (W.P.) Kar. 868 and Muhammad Aslam v. The State and others 1993 PCr.LJ 749 ref.

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

----Ss. 420 & 406---Cheating and criminal breach of trust---Essential ingredients---Fraudulent and dishonest intention/mens rea and inducement at the time of performing the act are essential ingredients for constituting the offence of cheating and criminal breach of trust---Onus always lies on the prosecution to prima facie establish the aforesaid ingredients for taking cognizance in the matter---Denial of transaction and refusal to pay the money do not necessarily show criminal intention from very beginning---Accused cannot be convicted merely on presumptions.

Kamaluddin for Applicants.

Abdul Hadi Khoso for Respondent No. 1.

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

PCRLJ 2000 KARACHI HIGH COURT SINDH 1241 #

2000 P Cr. L J 1241

[Karachi]

Before Ghulam Nabi Soomro, J

MUHAMMAD RAMZAN---Appellant

versus

THE STATE---Respondent

Criminal Jail Appeal No.S-02 of 1999, decided on 11th February, 2000.

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

----S. 302---Non-examination of Investigating Officer---Effect---Investigating Officer who had conducted the entire investigation of the case had not been examined and he was not even formally given up by the prosecution---Investigating Officer was a very important witness for the prosecution as well as for the defence and in absence of his evidence trial could not be said to have been properly concluded---Non-examination of the Investigating Officer in the absence of very strong reasons, such as his death or his being not traceable despite all possible efforts, was alone sufficient to render the conviction of accused unsustainable---Conviction and sentence of accused were consequently set aside and the case was remanded to Trial Court to examine the Investigating Officer and in case of his being not available any other person competent to testify on- his behalf and to decide the case afresh reassessing the entire evidence adduced by the parties.

1993 SCMR 2236; 1988 PCr.LJ 606; 1999 PCr.LJ 2032; PLD 1968 Dacca 228; 1972 PCr.LJ 1259 and 1983 PCr.LJ 327 ref.

(b) Criminal trial---

---- Non-examination of Investigating Officer---Effect.;

1993 SCMR 2236; 1988 PCr.LJ 606; 1999 PCr.LJ 2032; PLD 1968 Dacca 228; 1972 PCr.LJ 1259 and 1983 PCr.LJ 327 ref.

Nisar Ahmed Bhatti for Appellant. Altaf Hussain Surahio for the State.

Date of hearing: 20th January, 2000.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1253 #

2000 P Cr. L J 1253

[Karachi]

Before Muhammad Roshan Essani, J

GHULAM MUSTAFA and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No-26 of 2000, decided on 3rd February, 2000.

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

----S. 497---Penal Code (XLV of 1860), S.302/34 Accused duly armed with country-made pistols had allegedly caused the death of the deceased and injured two prosecution witnesses by firing ----Parties being accused could not be arrested during investigation and they were sent up to stand trial m absentia---Being fugitive from law and having thwarted the investigation, accused had lost some of the normal rights available to them under the procedural as well as substantive law---Deeper appreciation of evidence could not be made at bail stage---Delay in making the F.I.R. per s per se was no ground for the grant of bail---Bail was declined to accused in circumstances.

Awal Gul v. Zawat Khan and others PLD 1985 SC 402 and Sher Ali alias Sheri v. The State 1998 SCMR 190 ref.

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

---S. 497---Penal Code (XLV of 1860), S.302/34---Bail---Absconder--_ Accused who thwarts the investigation and is fugitive from law and Court loses some of the normal rights granted by the procedural as well as substantive law.

Awal Gul v. Zawar Khan and others PLD 1985 SC 402 and Sher Ali alias Sheri v. The State 1998 SCMR 190 ref.

---S. 497---Penal Code (XLV of 1860), S.302/34---Bail---Assessment of evidence---For the grant or refusal of bail only tentative assessment of evidence available on record is to be made and deeper appreciation of the same is not warranted by law.

Ahmed Ali Shaikh for Applicant.

Agha Khuda Bux, Asstt. A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1306 #

2000 P Cr. L J 1306

[Karachi]

Before Abdul Hameed Dogar and Wahid Bux Brohi, JJ

GULIN KHAN---Appellant

versus

THE STATE and 2 others---Respondents

Special Anti-Terrorism Acquittal Appeal No. 138 of 1999, decided on 28th December, 1999.

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

----Art. 22---Identification parade---When culprits were not known to the witnesses and witnesses had only a momentary glimpse of the culprits at the time of occurrence, prosecution was bound to prove that culprits, soon after their arrest, were put to identification test and got identified by eye-witnesses through an identification test/parade held in presence of a Magistrate.

State v. Farman Hussain and others PLD 1995 SC 1 and Sobharo's case 1993 SCMR 585 ref.

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

----S. 417(2-A)---Anti-Terrorism Act (XXVII of 1997), S.25---Penal Code (XLV of 1860), S.302/392/34---Appeal against acquittal---Evidence produced by prosecution was wholly insufficient, ocular testimony was not trustworthy to establish identity of accused persons to be culprits and version whereby account of incident was given was not believable and confidence inspiring---Evidence of prosecution, was rightly rejected by Trial Court in circumstances---Finding of acquittal being well-founded would not call for interference.

Ghulammllah v. State 1996 SCMR 1887; Muhammad Ali and others v. The State 1999 SCMR 1957; Abdur Rashid v. Umid Ali and 2 others PLD 1975 SC 227; The State v. Muhammad Alim PLD 1975 Kar. 168;

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Fateh Muhammad v. Mehmood Khan and 3 others 1998 MLD 1107; Abdul Hashem v. The State 1969 PCr.LJ 491; Rasool Bakhsh v. The State PLD 1970 SC 316; State v. Abdul Ghaffar 1996 SCMR 678; Alam Khan v. Swans Khan and 3 others 1996 SCMR 1742 and State/Government of Sindh v. Sobharo 1993 SCMR 585 and Farman Ali v. The State 1997 SCMR 971 ref;

Gul Zaman Khan for Appellant.

Shaukat Hussain Zubedi and Jalil Hashmi Asstt. A.-G. for Respondents.

Date of hearing: 8th December, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1317 #

2000 P Cr. L J 1317

[Karachi]

Before Zahid Kurban Alavi and Mushir Alam, JJ

LIAQUAT ALI ---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.D-78 of 2000, decided on 10th March, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of, 1997), S.6/9(c)---Bail, grant of---Accused was behind the bars for the last more than one year, but trial had not been concluded---Reason for non-conclusion of the trial was non-availability of Presiding Officer for which accused was not responsible---Accused was neither dangerous, desperate or hardened criminal nor he was a previous convict---Delay in concluding trial was not attributed to accused---Bail was granted to accused, in circumstances.

Ashoke v. The State 1997 SCMR 436; Gul Hasan Penhyar v. The State 1997 SCMR 390; Jadeed Gul v. The State 1998 SCMR 1124 and Muhammad Aslam v. The State 1999 SCMR 2147 ref.

Muhammad Ayaz Soomro for Applicant.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1322 #

2000 P Cr. L J 1322

[Karachi]

Before Muhammad Ashraf Leghari and Muhammad Roshan Essani, JJ

TAHA---Applicant

versus

THE STATE---Respondent

Criminal Miscellaneous Application No.505 of 1999, decided on 16th December, 1999.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 265-K---Anti-Terrorism Act (XXVI of 1997), S.30(3)-_ Penal Code (XLV of 1860), S.302/353/324/34---Quashing of proceedings in a special case---Jurisdiction of High Court---Accused in his application under S.561-A. Cr.P.C. before High Court had sought quashing of proceedings in a special case pending in Anti-Terrorism Court---Provisions of subsection (3) of S.30, Anti-Terrorism Act, 1997 having clearly provided that no Court other than Anti-Terrorism Court would have power or jurisdiction to grant bail or release accused in case triable by. Special Court, High Court under S.561-A, Cr.P.C. was not competent to set aside order passed on application under S.265-K, Cr.P.C. and to quash proceedings and thereby release accused in the case which was triable by Anti-Terrorism Court.

State v. Shamsur Rehman alias Shamsoo, Special Anti-Terrorism Revision No.26 of 1999 ref.

Mehmood A. Qureshi for Applicant.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1329 #

2000 P Cr. L J 1329

[Karachi]

Before Muhammad Roshan Essani, J

Agha SIRAJ KHAN DURRANI---Applicant

versus

THE STATE--=Respondent

Criminal Revision No. 114 of 1999, decided on 1st November, 1999

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

----S. 228---Criminal Procedure Code (V of 1898), S. 195(l)(b) --- Intentional insult of or interruption of public servant Sitting in judicial proceedings---If any offence under 5.228, P.P.C. was committed, proceedings could be initiated upon "complaint" in writing filed by relevant Court or by some other Court to which said Court was subordinate.

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

----S. 228---Intentional insult of or interruption of public servant sitting in judicial proceedings---Ingredients of offence ---Mens rea/intention to offer any insult or to cause any interruption were necessary ingredients for constituting offence under S.228, P.P.C.---Point for determination of the offence would be, whether act of the accused amounted to intentional insult.

---- Determination of contempt---Test---Entire set of circumstances with act of contempt would have to be scanned and scrutinised before it could be held and determined that a contemner had actually contravened law of contempt of Court---Test in determination of contempt was whether act amounted to some interference with course of justice and its administration or whether it had a tendency to cause such an interference---No hard and fast rule or provision of law could be laid down on the subject---For an act of contempt, multiplicity of ways and methods both crude or subtle, which baffled all attempts to enumerate or classify could be adopted.

(d) Contempt of Court---

---- Classification of categories of contempt listed.

The contempts are classified in four categories i.e. direct, constructive, criminal and civil:

(a) A direct contempt is open insult in the presence of the Court to the person of the presiding judge, or defiance in his presence to his powers or authority.

(b) A constructive contempt is an act done in the presence of the Court but at a distance which tends to be little, to degrade or to obstruct, interrupt, prevent, or embarrass the administration of justice.

(c) A criminal contempt is conduct that is directed against the dignity and authority of the Court. Acts punishable as criminal contempts are in the nature of crimes, in that they involve the idea of punishment as a penalty for the commission of the unauthorised act.

(d) A civil contempt consists in failing to do something ordered to be done by a Court in a criminal action for the benefit of the opposing party therein.

American Encyclopedia of Law and Procedure ref.

(e) Mens rea---

----Definition.

Salmond on Jurisprudence, 12th Edn.,by P.J. Fitz Gerald, published by Sweet and Maxwell, London ref.

(f) Motive-

---- Definition.

(g) Intention---

----Definition.

(h) Contempt of Court---

---- Constitution of offence ---Mens rea was requisite in order to constitute offence of contempt of Court ---Mens rea was present in deliberate doing of an act which contemner knew he was forbidden to do---If contemner did not know that he was forbidden to do so, no mens rea would be in his doing the said act---If the act was done accidentally, then also there was no mens rea--Doctrine of "wilful disobedience" would mean that act was wilfully and deliberately committed with a particular motive, i.e. criminal intention or motive---Obstruction to free flow of justice was known in legal phraseology as "contempt" and it had nothing to do with personal feelings of Judge--Object of discipline enforced by Court in case of contempt was not to vindicate dignity of Judge in person, but to prevent undue interference with administration of justice or doing of an act, the tendency of which was to deprive Court of an unfettered course with a view to dispense even-handed and impartial justice in accordance with law.

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

----S. 228---Appreciation of evidence---Accused who was an advocate was convicted and sentenced on allegation that his mobile phone ring had caused interruption in judicial proceedings in the Court---When Court enquired as to who was carrying mobile phone, accused immediately stood up and tendered apology with explanation that he was under bona fide impression that switch of mobile phone was off---Requisite intention to commit contempt of Court was lacking---In view of explanation offered by the accused, accused did not commit any act so as to cause interruption of judicial proceedings wilfully or deliberately---Accused did not phone any body, but he accidentally did not switch off mobile phone and all of a sudden because of an incoming call bell of mobile phone rang---Accused repented for what had happened and he tendered apology, but despite repeated apology, accused was convicted and sentenced---Validity---No offence of contempt of Court under 5.228, P.P.C. having been committed by accused, his conviction and sentence were set aside by High Court in circumstances.

Rustam Aumia Bhuiya v. The State PLD 1957 Dacca 467; Rehman Gul v. The State PLD 1971 Pesh. 1; McLeod's v. St. Aubyun 1899 AC at p.549; Subramanyan's case AIR 1943 Lah. 1329; Iqbal Hussain Kazi v. The State 1969 PCr.LJ 627; The State v. Abdul Latif PLD 1961 (W.P.) Lah. 51 and Ghulam Shabbir v. The State 1991 MLD 487 ref.

Agha Saifuddin for Applicant. Nemo for the State.

Date of hearing: 18th October, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1342 #

2000 P Cr. L J 1342

[Karachi]

Before Muhammad Roshan Essani and Ghulam Nabi Soomro, JJ

Haji RAMZAN---Applicant/Accused

versus

THE STATE---Respondent

Criminal Bail Application No. 1229 of 1999, decided on 15th December, 1999.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)--Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Bail, grant of---Prosecution witnesses had fully implicated accused and absconding accused in their statements under 5.161, Cr.P.C.---Trial Court had framed charge and case was ripe for recording evidence by Trial Court---Huge quantity i.e. 308 kilograms of Charas allegedly was brought and dumped by accused for smuggling abroad---Report of Chemical Analyst was positive--Offence registered against accused under S.9(c) of Control of Narcotic Substances Act, 1997 being punishable with death or imprisonment for life and fine, application for bail was rightly dismissed by Trial Court.

Tariq Bashir and others v. The State PLD 1995 SC 34 and Amir v. The State PLD 1972 SC 277 ref.

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

----S. 497---Bail, grant or refusal---Principle---Only tentative assessment was to be made and deeper appreciation or evaluation of evidence was not warranted by law for purpose of grant or refusal of bail.

S.M. Ismail Shah for Applicant.

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

PCRLJ 2000 KARACHI HIGH COURT SINDH 1350 #

2000 PCr.LJ 1350

[karachi]

Before Rasheed Ahmed Razvi, J

MUHAMMAD TAJ and another---Applicants/Accused

versus

THE STATE---Respondent

Criminal Bail Application No. 1325 of 1998, decided on 14th January, 1999

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.363/342/377/34---Bail--Dismissal of earlier bail application---Filing of fresh application for bail--Procedure---All subsequent bail applications arising out of same offence, were to be placed before same Judge, if available on Bench who had dealt with earlier bail applications in the case---Where it was absolutely impossible to place second or subsequent bail application before same Judge, Chief Justice of High Court could order for fixing such bail application for disposal before any other Judge of that Court---Even where a bail application was not pressed or withdrawn or when it was dismissed for non-prosecution, it was to be placed before same Judge, if available on Bench, except in absolutely impossible circumstances for which Chief Justice was authorised to place same before another Court.

State through Advocate-General, N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173; 'Muhammad Tasleem Khan v. The State 1996 P Cr. L J 580; Karamat Hussain v. Faraqat Hussain and 4 others PLD 1987 SC (AJ&K) 27; Khan Beg v. Sujawal and others PLD 1984 SC 341; Farid v. Ghulam Hussain and others 1968 SCMR 924; Muhammad Taj v. Muhammad Akhtar and another 1997 SCMR 1336; Shaikh Rasheed Ahmed v. The State 1996 PCr.LJ 370 and Shamsuddin Mirjat v. The State PLD 1996 Kar. 382 ref.

S. Azmat Shah for Applicant/Accused.

Arshad Lodhi, A.A.-G., Sindh alongwith Sharafat Ali Khan for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1360 #

2000 P Cr. L J 1360

[Karachi]

Before Muhammad Rashan Essani and S.A. Rabbani, JJ

HAMZA---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.26 of 1997, decided on 15th March, 2000.

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

----Art. 3/4---Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9---Appreciation of evidence---One of prosecution witnesses was a stock witness and a drug addict---Other witness had admitted in his cross-examination that he had been appearing in cases of Excise Police as a prosecution witness before Trial Court and that apart from the present case he had appeared in two other cases of narcotics---Said witness had also admitted that he smoked Charas and was a purchaser of the same---Alleged recovered narcotic was sent for chemical analysis after twelve days from its recovery and said delay was not explained by prosecution witness though chemical laboratory was situated in the city---Gross and net weight of alleged narcotic did not commensurate with weight stated by complainant and prosecution witnesses in their evidence before Court nor also with what was mentioned in F.I.R. and Mashirnama of recovery---Other glaring contradictions were also found in evidence of prosecution witnesses--Prosecution, in circumstances, had failed to substantiate charge against accused---Dishonesty in investigation having rendered entire prosecution case doubtful accused was acquitted extending him benefit of doubt.

(b) Criminal trial---

---- Interested witness---Corroboration of evidence of interested witness--Rule with regard to corroboration of evidence of an interested witness, although was a rule of caution, but virtually it was refined into rule of law.

---- Benefit of doubt---Principles---For purpose of benefit of doubt to an accused more than one infirmity was not required, but a single infirmity creating reasonable doubt in mind of a reasonable and prudent mind regarding truth of charge would make whole case doubtful---Merely because burden was on accused to prove his innocence, it would not absolve prosecution from its duty to prove its case against accused beyond any shadow of doubt.

M. Ilyas Khan for Appellant.

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

Date of hearing: 8th September, 1999

PCRLJ 2000 KARACHI HIGH COURT SINDH 1418 #

2000 P Cr. L J 1418

[Karachi]

Before Muhammad Roshan Essani and Abdul Ghani Shaikh, JJ

THE STATE through Additional Advocate-General, Sindh/Public Prosecutor---Appellant

versus

ANIS BAWANI and 2 others---Respondents

Special Criminal Acquittal Appeal No. 159 and Miscellaneous Application No. 1154 of 1999, decided on 29th March, 2000.

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

----Ss. 25, 7 & 32---Criminal Procedure Code (V of 1898), S.417 --- Penat Code (XLV of 1860), S.302/353/427/435/34/109---Appeal against acquittal---Maintainability---Appeal, against acquittal by Special Court of Anti-Terrorism was filed by counsel in his capacity as Additional Advocate General---Maintainability---Only "Attorney-General" or "Advocate-General" were competent to file appeal against acquittal on directives of Government under S.25 of Anti-Terrorism Act, 1997 and no third category by way of "Additional Advocate=General" or "Public Prosecutor" had been empowered to file appeal against acquittal under S.25 of the said Act---Contention of Additional Advocate-General - that he being a Public Prosecutor was competent to file the appeal was misconceived---Anti-Terrorism Act, 1997 being a special statute would override general law as provided under S.32 of said Act=--Code of. Criminal Procedure; 1898 was applicable to Special Court only to the extent that its provisions were not inconsistent with provisions of Anti-Terrorism Act, 1997 and in case of inconsistency, provisions of Code of Criminal Procedure, 1898, would be struck down--Appeal against acquittal incompetently filed otherwise also being timebarred, was not maintainable and was liable to be dismissed on that ground.

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

----S. 5---Delay---Condonation of---Delay would create valuable right in favour of parties---State was also to be treated at par with ordinary citizen--Delay of each day was to be explained for condonation of delay.

----Ss. 25 & 32; --Limitation Act (IX of 1908), Ss:5 & 29(2)(a)(b)---Appeal against acquittal---Limitation for----Delay, condonation of---Appeal against acquittal which- was to be filed before Special Court within fifteen days as provided under S.25 of Anti-Terrorism Act, 1997 was filed after twenty-five days from expiry of prescribed period of 15 days and the delay was not properly explained---Period of limitation as prescribed in Special or Local Law was to prevail over that of Limitation Act, 1908 particularly where such period was prescribed by a special or local law which was different from the Limitation Act, 1908---Period prescribed in special or local law would prevail over the Limitation Act, 1908---Provisions of S.5 of Limitation Act, 1908 would not, in circumstances, be. applicable to appeal under Anti Terrorism Act, 1997 in view of bar contained under. S.29(2)(a)(b) of Limitation Act, 1908.

Haji Muhammad Ashraf v. The State arid 3 others 1999 MLD 330

ref.

Mian Khan Malik, Addl. A.-G. for the State. Allah Bachayo Soomro for Respondents Nos.2 and 3.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1434 #

2000 P Cr. L J 1434

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

THE STATE through Advocate-General, Sindh/Public Prosecutor, Karachi---Appellant

versus

Haji LAL MUHAMMAD alias LALOO and 3 others---Respondents , Criminal Anti-Terrorism Acquittal Appeal No. 103 of 1999, decided on 26th November, 1999.

Anti-Terrorism Act (XXVH of 1997)---

----S. 25---Criminal Procedure Code (V of 1898), S.417---Penal Code (XLV of 1860), S.365-A/34---Appeal against acquittal---Alleged abductees had not supported prosecution case against the accused---One of the abductees was declared hostile by prosecution and was cross-examined by Special Public Prosecutor---No clue was found to the effect that accused were involved in abduction of alleged abductees---One of the alleged abductees had stated that accused present in the Court were not same while other abductee had stated in his evidence that accused present in the Court were the same whose names were given by police, but nowhere in his testimony he had said a word against accused except that their names were given by police---Accused, in circumstances, could not be convicted on capital charge merely on assumptions and conjectures---When abductees had turned their story and Mashir of recovery had not supported the case, only evidence of police officials and Investigating Officer would not be sufficient to bring home guilt of the accused---Trial Court had rightly acquitted accused finding that case of prosecution against accused was doubtful---Judgment of Court below based on evidence on record and not being perverse, illegal and not suffering from misreading of evidence leading to miscarriage of justice, could not be interfered with in appeal.

Muhammad Shah and others v. The State PLD 1984 SC 278;

Muhammad Rafiq v. The State 1991 PCr.LJ 857; Leemon v. The State 1978 PCr.LJ 232; Ali Hassan v. Haji Khamiso and 2 others 1986 PCr.LJ 21; Muhammad Sadiq v. Muhammad Sarwar and 2 others PLD 1973 SC 469; Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928; Yar Muhammad and 3 others v. The State 1992 SCMR 96; Imran Hussain v. Amar Arshad and 2 others 1997 SCMR 438 and State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408 ref.

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

Muhammad Saleh Panhwar for Respondents.

Date of hearing: 17th November, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1442 #

2000 P Cr. L J 1442

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

MAQBOOL AHMED SHAIKH --- Applicant

versus

THE STATE---Respondent

Criminal Revision Application No. 112 and Bail Application No. 1345 of 1999, decided on 23rd November, 1999.

Criminal Procedure Code (V of 1898)---

----S. 494---Withdrawal from prosecution of accused---Move for withdrawal, of prosecution under S.494, Cr.P.C. could be made by Public Prosecutor and he could withdraw prosecution case with consent of Trial Court before pronouncement of judgment---No embargo was put on powers of Public Prosecutor to withdraw from prosecution of any case, but withdrawal could be made only with consent of Court and consent of Court would imply judicial discretion of Court---Refusal or acceptance of such withdrawal of prosecution by Trial Court was within its judicial domain---While exercising powers under S.494, Cr.P.C. it was duty of Court to apply its judicial mind before giving consent and it was duty of Court to ensure that normal course of justice was not deflected for illegal reasons and that there should be no indication of throttling the prosecution.

Saad Shibli v. The State PLD 1982 SC 27; State v. Puttan alias Sibte Hassan and 23 others 1980 PCr.LJ 1034; Mir Hassan v. Tariq Saeed PLD 1977 SC 451; PLD 1981 SC 617; Crown v. Bahu PLD 1956 Kar. 385; M.N. Shankanarayain Nair v. Bal Krishan AIR 1972 SC 496; Nazim Khan and 2 others v. The State 1984 SCMR 1092; Ameenullah v. The State PLD 1976 SC 629; Abdul Rauf v. The Crown 1971 SCMR 256: Muhammad Aslam and another v. The State 1969 PCr.LJ 885 and Iqbal Hussain Shah v

The State PLJ 1979 Cr. 274 ref.

Muhammad Ashraf Kazi for Applicant.

Syed Jalil Ahmed Hashmi, A.A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1452 #

2000 P Cr. L J 1452

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari; JJ

RAFIULLAH KAKAR and 2 others---Appellants

versus

THE STATE---Respondent

Special Criminal A.T.A. No.76 of 1999, decided on 17th December, 1999.

Penal Code (XLV of 1860)---

----S. 392/377/452/506/34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(3) & 12---Appreciation of evidence---F.I.R. was delayed by about four days without any reason and contradictions were found in version of prosecution witnesses---Incident had not taken place in the manner-as narrated by complainant and her husband and they had tried their best to conceal true facts and had distorted the story which had caused a reasonable doubt---Single circumstance which would create doubt in the mind of Court, was sufficient to disbelieve prosecution case and it was not necessary that there should be so many circumstances for creating doubts--Medical evidence did not corroborate evidence of victim---Report of Expert about trousers of victim which allegedly were stained with semen was that same contained human semen but semen of accused was not sent for examination in order to obtain matching report---No other piece of evidence was available which could corroborate version of victim and her husband--Unexplained delay in reporting matter, exaggerations and contradiction made by witnesses in statements, had made their testimony doubtful and unreliable which did not inspire confidence---Case against accused having not been proved conviction and sentences awarded to accused by Trial Court, were set aside.

PLD 1963 Dacca 908; PLD 1960 SC 325; PLJ 1984 FSC 160; PLD 1983 FSC 200; PLD 1982 FSC 151; PLD 1963 Kar. 684; 1976 PCr.LJ 980; 1976 PCr.LJ 917; 1976 PCr.LJ. 364; 1995 SCMR 1137; 1995 PCr.LJ 157; 1994 PCr.LJ 327; 1993 SCMR 1628; 1993 PCr.LJ 185; PLD 1983 FSC 204; 1998 PCr.LJ 1250; 1996 SCMR 1910; 1978 PCr.LJ 766; PLD 1988 FSC 3; Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127; Tariq Pervaiz v. The State 1995 SCMR 1345; Muhammad Islam v. Government of N.-W.F.P. 1998 SCMR 1993 and Mst. Muhammadia v. Zari Bacha and another PLD 1982 Pesh. 85 ref.

I.A. Hashmi for Appellant.

S. Jalil A. Hashmi, A.A.-G. for the State.

Date of hearing: 30th November, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1461 #

2000 P Cr. L J 1461

[Karachi]

Before Muhammad Roshan Essani, J

AZMAT KHAN---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 122 of 1999, decided on 22nd March, 2000.

Penal Code (XLV of 1860)---

----S. 489-C---Criminal Procedure Code (V of 1898), S.510---Appreciation of evidence---Accused was found in possession of alleged counterfeit currency notes---Mere possession of such notes was not an offence--Essential ingredients for constituting offence under S.489-C, P.P.C. were that prosecution was to prove notes recovered from possession of accused to be forged or counterfeit and that accused intended to use them as genuine or that they might be used as genuine---Prosecution was not absolved from proving its case beyond any shadow of doubt even if burden was shifted upon the accused---Police official was not expected to give opinion with regard to genuineness or otherwise of any currency notes, but it was only Expert who could say or give any opinion in that context---Deputy Currency Officer, State Bank of Pakistan, who issued certificate with regard to the notes, was not examined by prosecution to substantiate the charge--Certificate issued by Deputy Currency Officer being not immune under S.510, Cr.P.C., prosecution failed to prove charge against accused--Conviction and sentence awarded to accused by Trial Court were set aside in circumstances.

Muhammad Asghar v. The State 1993 PCr.LJ 1909; Shafique Sajid v. The State 1988 PCr.LJ 1553 and Ali Asghar v. The State 1992 PCr.LJ 1913 ref.

B.K. Tariq and Abdul Latif Shaikh for Appellant. Habibur Rasheed on behalf of A.-G. for the State.

Date of hearing: 22nd March, 2000

PCRLJ 2000 KARACHI HIGH COURT SINDH 1464 #

2000 P Cr. L J 1464

[Karachi]

Before Ghulam Nabi Soormo, J

ZULFI.QAR --Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-286 of 1999, decided on 24th February, 2000.

Criminal Procedure Code (V of 1898)---

---S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of ---Accused who had sought bail on ground of statutory delay in the trial, by his conduct had displayed his dangerous and desperate nature---Case of accused, thus, was, hit by last proviso to S.497(1), Cr.P.C.---Accused, in circumstances, was not entitled to bail even on ground of statutory delay in completion of trial.

Nemo for Applicant.

Ali Azhar Tunio, Asstt. A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1466 #

2000 P Cr. L J 1466

[Karachi]

Before Ata-ur-Rehman, MUHAMMAD BACHAL and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.51 of 1997, decided. on 6th November, 1998

Penal Code (XLV of 1860)---

----S. 302/34---Appreciation of evidence---Occurrence was an unwitnessed one---No independent Mashir was associated with the proceedings of recovery of blood-stained clothes of the accused and prosecution evidence in this regard was unnatural and unrealistic---Prosecution had not examined its important witness who was the first person to inform about the location of the dead body of the deceased and who could have been one of the suspects in the case---Confessional statements made by accused were neither voluntary, nor could be treated as the true version of the incident---No other evidence was available to improve the prosecution case---Accused were acquitted in circumstances.

Muhammad Ibrahim Soomro for Appellants.

A.A.-G. for the State.

Date of hearing: 18th September, 1998

2000 P Cr. L J 1499

[Karachi]

Before Abdul Ghani Shaikh, J

MALOOK and 2 others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.776 of 1999, decided on 17th January, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4--Bail, grant of---Accused was facing trial before the First Class Magistrate and had remained in custody for about four months---Witnesses of recovery were police officials---Accused -deserved the concession of bail in circumstances---Bail was granted to accused accordingly.

Abdul Rasool Abbasi for Applicants. Mukhtar Ahmed Khanzada for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1500 #

2000 P Cr. L J 1500

[Karachi]

Before Muhammad Roshan Essani, J

ALI MUHAMMAD ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 148 of 1996, decided on 9th April, 1999.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 302(c)---Appreciation of evidence---Private defence, right of---Eye-witnesses had suppressed the injuries sustained by the accused and his companions during the incident for which the accused had also lodged a counter-F.I.R.---Accused had taken the plea of right of private defence at the very first opportunity available. to him---Such plea was also taken by accused in his judicial confession which was retracted at the trial, but his plea of self defence was very much inferable from the evidence recorded in the case--Accused, however, had fired two shots from his gun which had hit on the chest and head of the victims---Harm caused to the accused and his companions was muchless than the harm caused to the complainant party--Injuries sustained by the accused party were not so serious in nature--Accused, thus, had exceeded the right of private defence---Conviction of accused under S.302(b), P.P.C. was .altered to S.302(c), P.P.C. in circumstances and his sentence of imprisonment for life was reduced to five years' R.I. ---Benefit , of 5.382-B, Cr.P.C, was also given to accused.

Ali Muhammad's case PLD 1996 SC 247; Shoukat Ali and another v. The State PLD 1974 Kar. 179; Ghazi Khan and another v. The State PLD 1965 Quetta 33; Ahmad Din v. Faiz Ahmed and others 1972 SCMR 549; Ahmed Nawaz v. State, 1972 (sic) 309; Safdar Ali v. Crown PLD 1953 Federal Court 93; Muhammad Aslam v. Crown PLD 1953 FC 115 and Sultan Muhammad's case PLD 1954 FC 29 ref.

A.Q. Halepota for Appellant.

M. Saleh Panhwar on behalf of A.-G. for the State.

Date of hearing: 22nd February, 1999:

PCRLJ 2000 KARACHI HIGH COURT SINDH 1508 #

2000 P Cr. L J 1508

[Karachi]

Before Abdul Hameed Dogar and Anwar Zaheer Jamali, JJ

BALOO alias PIYAR ALI ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.268 of 1998, decided on 21st December, 1998.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.365-A---Offences Against Property (Enforcement of Hudood) Ordinance (VI bf 1979), S.17(3)---Bail--Contentions were that since some of the co-accused in the case had already been acquitted and others had been enlarged on bail, accused was entitled to bail on the principle of rule of consistency and also for the reasons that the accused was neither nominated in the F.I.R. nor any identification test was held after his arrest, as such his case required further inquiry---Prosecution had not controverted the said contentions and acceded to the grant of bail to accused---Long abscondence of accused could be ignored where his case needed further inquiry---Bail was allowed to accused in circumstances.

1985 SCMR 382 and 1989 PCr.LJ 1910 ref.

Muhammad Ayaz Soomro for Applicant Muhammad Ismail Bhutto for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1510 #

2000 P Cr. L J 1510

[Karachi].

Before Ghulam Rabbani and Anwar Zaheer Jamali, J

JUNAID and 2 others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.793, of 1999, decided on 5th January, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.353/324/147/148/149---Explosive Substances Act (XI of 1908), S.3/5---Anti-Terrorism Act (XXVII of 1997), S.6/7---Bail---Case was one of ineffective firing which was not attributed to accused---No private person had been picked up from the heavily congested place of occurrence of the city to give evidence on the incident---How the Police officials had identified the accused by name as soon as they came within their sight who were not known to them, was not understandable---No empty of the specified rifle was found at the place of incident---Such facts had made the case against the accused one of further inquiry---Accused were admitted to bail accordingly.

Muhammad v. The State 1998 SCMR 454 and Gul Hassan alias Nadeem v. The State Criminal Bail Application No.395 of 1998 ref.

Noor Nabi G. Memon for Applicants.

Muhammad Azim Panhwar for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1512 #

2000 P Cr. L J 1512

[Karachi]

Before Ghulam Rabbani, J

Haji RAJIB---Applicant

versus

THE STATE---Respondent

Criminal Revision Application No.93 of 1999, decided on 3rd January, 2000.

Criminal Procedure Code (V of 189$)---

----Ss. 514 & 439---Penal Code (XLV of 1860), S.302/34---Forfeiture of surety bond---Applicant (surety) had been allegedly deprived of an opportunity to explain the absence of accused before the Trial Court who admittedly was confined in jail in some other case---Late arrival of the applicant in the Trial Court on the date of hearing was alleged to have been for valid reasons which ought to have been considered by the Court for just decision on merits---Impugned order passed by Trial Court directing the applicant to deposit ,the entire amount of surety within one month was set aside with consent of the parties in view of the facts and the matter was remanded to Trial Court for decision afresh on merits after hearing the applicant.

Abdul Rasool Abbasi for Applicant.

Azeem Panhwar for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1514 #

2000 P Cr. L J 1514

[Karachi]

Before Ghulam Nabi Soomro, J

ULAM SARWAR---Applicant/Surety

versus

THE STATE---Opponent

Criminal Revision Application `No.8 of 1999 and Miscellaneous Application No.45 of 2000, decided on 2nd February, 2000.

Criminal Procedure Code (V of 1898)---

----S. 514---Penal Code (XLV of 1860), S.302---Forfeiture of surety bond--Applicant had stood surety for the accused in the murder case in the sum of Rs.1,00,000---Surety obliging the accused by getting him released as a free person could not be termed as a totally disinterested person---Court, though had to take a lenient view in case of penalty imposed upon a surety, yet a line had to be drawn in a case where the accused, after his release on bail, absconded and was re-arrested and an accused who after his release on bail did not turn his face to Court but went in hiding and defied the conditions of his bond---Surety was stated to be a poor person---Person would be accepted as surety for an accused only when he was certified by a Competent Authority to be a solvent person or was found by the Court as such---Was in bad taste to hear from a surety that he was poor in relation to the amount of surety bond executed by him voluntarily---Amount of penalty was reduced by Rs.25,000 only in circumstances with the direction to applicant to pay the remaining amount of Rs.75,000 within a period of two months.

Zeeshan Kazmi v. The State PLD 1997 SC 934; 1990 SCMR 1300; 2000 PCr.LJ 94 and 2000 PCr.LJ 172 ref.

Muhammad Ayaz Soomro for Applicant.

Ali Azhar Tunio, Asstt. A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1516 #

2000 P Cr. L J 1516

[Karachi]

Before Rasheed Ahmed Razvi, J

ABDUL FATTAH BABAR SANI---Petitioner

versus

Mst. NOREEN and 2 others---Respondents

Criminal Miscellaneous Application No.484 of 1998, decided on 9th August, 199.9.

(a) Review---

---Right of review, though different in scope from the right of appeal, is a substantive right and it is not available unless it has been conferred by law.

Hussain Bakhsh v.. Settlement Commissioner, Rawalpindi and others PLD 1970 SC l and Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94 ref.

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

----Ss. 561-A & 369---Inherent power of review---Sanctity of finality, no doubt, is attached to a judgment passed by a criminal Court by virtue of 5.369, Cr.P.C., but Court could review or recall its judgment and order which was . found to have been passed without jurisdiction, without adjudication on merits, in violation of any law or having been obtained by playing fraud upon the Court---Court, thus, had an inherent power to recall or review such order.

Shahkot Bus Service, Shahkot v. The State and another 1969 SCMR 325; Gul Muhammad and others v. The State NLR 1999 Criminal 291; Sajjad Amjad v. Abdul Hameed and 3 others PLD 1998 Lab. 474; Gulzar Hassan Shah v. Ghulam Murtaza and 4 others PLD 1970 SC 335; Muhammad Hanif v. The State PLD 1974 Kar. 22; Zulfiqar Ali v. The State PLD 1984 Lah. 461; Riaz and others v. Razi Muhammad 1982 SCMR 741; Abdullah v. Din Muhammad Shah and 4 others PLD 1976 Kar. 1184; Ghulam Hussain v. The State PLD 1981 Kar. 711; Rahim Jan v. Ahmad Jan and another 1986 PCr.LJ 122; Niazi and 3 others v. Ghulam Dastgir and another 1987 PCr.LJ 1432; Ghulam Raza and 2 others v. The State 1974 PCr.LJ 95; Ahmed Jawwad Sarwar v. Mst. Zenia 1996 SCMR 1907; Malik Feroz Khan Noon v. The State PLD 1958 SC 333; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; Mst. Mumtaz Begum and 8 others v. Shakil Hyder and 12 others 1997 PCr.LJ 776; Gulzar Hussain Shah Rehmat Ali alias Lunda v. The State 1971 SCMR 513; Juan Sullivan v. The State 1971 SCMR 618; Muhammad Khan v. Muhammad Aslam and 3 others 1971 SCMR 789; Mumtaz Khan v. Chief Settlement Commissioner and Rehabilitation Commissioner and another PLD 1966 SC 276; Hamidul Haq Chowdhury v. His Excellency The Governor-General of Pakistan PLD.1953 FC 279 and The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 ref.

----S. 561-A---Review of order passed by High Court in habeas corpus petition regulating the temporary custody of the minor---Neither the jurisdiction of High Court to pass the order sought to be reviewed was challenged, nor the same was alleged to have been obtained by misrepresentation or fraud---No violation of any law in passing the said order was even pointed out.---Order sought to be reviewed was a consent order except the last condition added by High Court in the interest of minor that when father of the minor was out of country, the mother would take the minor to the house of his father in order that the child might meet his grandmother---Consent order could only be modified or altered with the consent of the other party which was missing in the case and the same could not be touched by High Court whatever the allegations might be---Additional conditions imposed in the said order could be considered in view of the allegations and counter allegations levelled by the parties subsequent to the passing of the order---Parties being at daggers drawn it was not advisable, just and proper to ask the mother to take the minor to the house of his father---Last portion of the aforesaid order was consequently modified to the extent that in case the petitioner (father) was out of station, respondent (mother) would produce the minor every last Saturday of the month between 11 a.m. to 1 p.m. in the office of the Deputy Registrar (Judicial) of High Court---Petition was disposed of with such modification accordingly.

Shahkot Bus Service, Shahkot v. The State and another' 1969 SCMR 325; Gul Muhammad etc. v. The State NLR 1999 Criminal 291; Sajjad Amjad v. Abdul Hameed and 3 others PLD 1998 Lah. 474; Gulzar Hassan Shah v. Ghulam Murtaza and 4 others PLD 1970 SC 335; Muhammad Hanif v. The State PLD 1974 Kar. 22; Zulfiqar Ali v. The Sate PLD 1984 Lah. 461; Riaz and others v. Razi Muhammad 1982 SCMR 741; Abdullah v. Din Muhammad Shah -and 4 others PLD 1976 Kar. 1184; Ghulam Hussain v. The State PLD 1981 Kar. 711; Rahim Jan v. Ahmad Jan and another 1986 PCr.LJ 122; Niazi and 3 others v. Ghulam Dastgir and another 1987 PCr.LJ 1432; Ghulam Raza and 2 others v. The State 1974 PCr.LJ 95; Ahmed Jawwad Sarwar v. Mst. Zenia 1996 SCMR 1907; Malik Feroz Khan Noon v. The State PLD 1958 SC 333; Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; Mst. Mumtaz Begum and 8 others v. Shakil Hyder and 12 others 1997 PCr.LJ 776; Gulzar Hussain Shah Rehmat Ali alias Lunda v. The State 1971 SCMR 513; Juan Sullivan v. The State 1971 SCMR 618; Muhammad Khan y. Muhammad Aslam and 3 others 1971 SCMR 789; Mumtaz Khan v. Chief Settlement Commissioner and Rehabilitation Commissioner and another PLD 1966 SC 276; Hamidul Haq Chowdhury v. .His Excellency The Governor-General of Pakistan PLD 1953 FC 279 and The Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331 ref.

(d) Constitution of Pakistan (1973)---

----Art. 204---Contempt of Court---Contents of affidavits and counter affidavits showed that the respondent not deliberately violated or shown disrespect towards the order of High Court---Due explanation had been given by the respondent for not producing the minor on the specified date while production of the minor by her on the subsequent date was not disputed--Non-compliance of the direction of High Court by the respondent on one date was, therefore, neither deliberate nor wilful---Respondent was however directed to remain careful and vigilant in future---Petition for initiating contempt proceedings against the respondent was dismissed accordingly.

Khwaja Shamsul Islam for Petitioner.

Abdul Latif A. Shakoor for Respondent No. 1.

Ali Nawaz Dahraj and Habib Ahmed, Asstt. A.-Gs., Sindh for the State (on Court's Notice).

PCRLJ 2000 KARACHI HIGH COURT SINDH 1525 #

2000 P Cr. L J 1525

[Karachi]

Before Muhammad Roshan Essani, J

KHADIM HUSSAIN and 6 others---Applicants

versus

THE STATE---Respondent

Criminal Miscellaneous ~ Application No.298 of 1999, decided on 7th February, 2000.

Criminal Procedure Code (V of 1898)---

----Ss. 107, 150, 112 & 561-A---Quashing of proceedings---Proceedings under 5.107, Cr.P.C. were not penal but punitive in nature and for taking cognizance it was essential that information must be of a clear and definite kind directly effecting the person against whom proceedings were to be drawn up disclosing the tangible facts with details---Act of each accused was not clearly mentioned or disclosed in the impugned report---Names of witnesses were not given in the report---Magistrate had not assigned any reason for issuing warrants in the first instance---No copy of the order under S.112, Cr.P.C. was sent by the Magistrate to the accused alongwith the warrants---Proceedings pending before the Magistrate against the accused, therefore, were a nullity in the eyes of law and their continuance would be an abuse of the process of the Court---Such proceedings were consequently quashed'.

Noor Nabi G. Memon for Applicants.

Mukhtiar Ahmed Khanzada on behalf of A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1534 #

2000 P Cr. L J 1534

[Karachi]

Before Muhammad Roshan Essani, J

MUHAMMAD SHAKEEL---Applicant

versus

POLICE STATION CITY, HYDERABAD and 2 others---Respondents

Criminal Miscellaneous Application No.412 of 1999, decided on, 11th February, 2000.

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

----Ss. 107, 151, 117(3) & 561-A---Quashing of proceedings---Contents of the report under Ss.107 & 151, Cr.P.C. were quite different from and in complete contradiction of the contents of the application under S.117(3), Cr.P.C.---Magistrate had acted in haste without applying his judicial mind to the said reports and passed the order under S.117(3), Cr.P.C. without recording evidence of any witness which was contrary to law---Bare possibility of breach of the peace was not enough to justify proceedings under S.117(3), Cr.P.C. and there must have been at least a reasonable probability of such breach which was not established by the record--Proceedings under 5.117(3), Cr.P.C. could not be initiated on mere vague surmises of breach of peace---Proceedings initiated against the accused on the said police report were a nullity in the eye of law and the same were quashed accordingly.

N. Reemes and 2 others v. State and another 1980 PCr.LJ 126 and 3 Shome LR 37 ref.

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

----Chap. VIII [Ss. 107 & 108]---Security for keeping the peace and for good behaviour---Proceedings under Chap.VIII of the Code of Criminal Procedure are not penal but punitive in nature---Courts being sanctuaries of the liberty of the citizens are not supposed to act on the ipse dixit of the police and they should be doubly conscious before taking any action on such reports.

Nandan A. Kella for Applicant.

Mukhtar A. Khanzada on behalf of A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1564 #

2000 P Cr. L J 1564

[Karachi]

Before Muhammad Roshan Essani and M. Ashraf Leghari, JJ

NASAR IQBAL---Appellant

versus

THE STATE---Respondent

Special Anti-Terrorism Appeal No. 109 of 1999, decided on 26th November, 1999.

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

----S. 10(2)---Penal Code (XLV of 1860), S.376---Appreciation of evidence ---F.I. R. in which none of the accused figured was promptly lodged---Evidence of victim girl which was natural one was supported by lady doctor who examined the victim and also prosecution witnesses---Victim girl had deposed in positive terms the incident and had fully implicated the accused---Testimony of victim was attacked by accused by pointing out very minor discrepancies which could be of no value for him---Evidence of victim girl was supported by Investigating Officer who found blood at Wardat--Accused had confessed his guilt before prosecution witnesses who were not suggested to have any enmity with accused---Such prosecution witnesses could not be termed as interested or partisan to accused---Strongest piece of evidence appearing on record was judicial confession of accused which alone was sufficient to carry conviction---Nothing had been brought on record to show that judicial confession of accused was illegal or same was not voluntary and true---Such judicial confession, which, though was retracted, was sufficient for conviction of accused---Defence witnesses seemed to be interested in protecting accused and their evidence was convincing which could not override huge evidence brought on record by prosecution--Evidence of victim girl which was not only truthful, but was duly supported by medical evidence and evidence of prosecution witnesses and circumstantial evidence, was sufficient to bring home guilt of accused beyond any doubt---Judgment of Court below whereby accused was convicted and sentenced, based on sound judicial principles of dispensation of criminal justice and not suffering from illegalities or irregularities, could not be interfered with in appeal.

Khan Muhammad and others v. The State 1999 SCMR 1818 and Muhammad and others v. The State 1984 SCMR 954 ref.

Ashraf Ali Butt for Appellant.

S. Jalil A. Hashmi, A.A.-G. for the State.

Date of hearing: 18th November, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1568 #

2000 P Cr. L J 1568

[Karachi]

Before Muhammad Roshan Essani and Ghulam Nabi Somroo, JJ

ABDUL GHAFOOR --- Applicant

versus

THE STATE---Respondent

Criminal Miscellaneous Application No.51 and Miscellaneous Applications Nos.305 and 306 of 2000, decided on 14th March, 2000.

Criminal Procedure Code (V of 1898)---

----S. 561-A---Penal Code (XLV of 1860), S.295-A, 295-B & 295-C--Application for quashing of proceedings---Maintainability---Applicant was not accused in the case, but he had claimed to be disciple of accused and had sought quashing of proceedings pending only against accused---Only aggrieved person could move Court for redress of his grievance in criminal proceedings---Accused was only competent person for redress of his grievance, but he had not appeared before Trial Court---Application for quashing of proceedings was dismissed being not maintainable.

Aslam Rana for Applicant.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1571 #

2000 P Cr. L J 1571

[Karachi]

Before Muhammad Roshan Essani, J

AURANGZEB and another---Appellants

versus

THE STATE---Respondent

Criminal Bail Application N0.27 of 1999, decided on 21st May. 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16---Bail, grant of---Report of occurrence was lodged after about seven days of alleged occurrence whereas police station was situated at distance of about two kilometres from place of occurrence---No plausible explanation was given by prosecution for such inordinate delay---Female accused in her statements made under Ss.161 & 164, Cr.P.C. had asserted that she was divorced and had voluntarily married with co-accused---Female accused had produced valid registered Nikahnama in proof of her assertion--No evidence was produced by prosecution to the effect that previous Nikah of female accused still existed---Previous Nikahnama had not been produced on record---Date of affidavit of female accused and her Nikah with male accused were prior in time and did not tally with date of her disappearance; kidnapping as shown in F.I.R.---Case against accused necessitated further enquiry as contemplated under S.497(2), Cr.P.C.---Accused in circumstances were entitled to bail.

Abdul Hameed Lakhani for Applicants.

Nisar A. Khan for the Complainant.

Muhammad Saleh Panhwar on behalf of A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1574 #

2000 P Cr. L J 1574.

[Karachi]

Before Saiyed Saeed Ashhad, J

ABDUL GHANI---Applicant

versus'

THE STATE and 2 others---Respondents

Criminal Miscellaneous Application No.256 of 1999, decided on 16th August, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Cancellation of bail---Grounds for---Application for cancellation of bail could be moved on any one of the five grounds, namely; that order granting bail was absolutely contrary to evidence on record from which a prima facie case of involvement of accused was made out; that accused person had misused benefit of bail; that there was possibility of absconsion of accused person; that possibility of repetition of offences charged with or commission of any other offences existed and that accused were trying to tamper with prosecution evidence.

Murad Khan v. Fazal E. Subhan and another PLD 1983 SC 82 re .

Muhammad Mustahsan Siddiqui for Applicant.

Ismail Memon for the State.

Ch. Abdul Rashid for Respondents Nos.2 and 3.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1583 #

2000 P Cr. L J 1583

[Karachi]

Before Abdul Hameed Dogar and Muhammad Roshan Essani, JJ

Moulvi NOOR MUHAMMAD and 3 others---Appellants

versus

THE STATE---Respondent

A.T.A. Appeal No.20 of 1998, decided on 27th March, 2000.

(a) jurisdiction---

.... ouster of jurisdiction of Court was very important and fundamental in nature and if a forum had no jurisdiction, same could not be conferred upon it by consent of parties---Question of jurisdiction was to be considered by Court even though not raised by the parties and Court could go into question of competence of the forum.

Sabir Shah v. Saad Muhammad Khan PLD 1995 SC 66 ref.

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

----Ss. 2(e) & 25---Penal Code (XLV of 1860), S.365-A---Proceedings before Special Judge---Competency---Offence under S.365-A, P.P.C. was not triable by Special Judge on the alleged date of incident as well as on the date when case was sent for trial---Accused contended that since proceedings before a Special Judge were coram non judice, judgment of Special Judge was liable to be set aside---Anti-Terrorism Act, 1997 being procedural law, would legally operate retrospectively and amendments in the Act would be deemed to be retrospective---Section 365-A, P.P.C. was a part of Schedule on the date of promulgation of said Act and on the date of passing conviction and sentence upon accused---Proceedings before Special Court were, thus, not "coram non judice".

Khadim Hussain v. State 1999 YLR 1817; Abdul Karim v. The State 1999 MLD 3236; Naeem alias Naeema v. The State 1992 SCMR 1617; Javed Nawaz v. The State 1995 SCMR 1151 and Liaquat Pervaiz Khan v. Government of Punjab PLD 1992 Lah. 517 ref.

Abdul Haleem Pirzada for Appellants.

Syed Jalil Ahmed Hashmi, Asstt. A.-G. for the State.

Date of hearing: 28th October, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1591 #

2000 P Cr. L J 1591

[Karachi]

Before Rasheed Ahmed Razvi, J

ABDUL KARIM BALOCH---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.55 of 1999, decided on 18th January, 1999.

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

----S. 497---Prevention of Corruption Act (II of 1947), S.5(2)---Penal Code (XLV of 1860), S.161---Bail, giant of---Allegation against accused was that he demanded Rs.5,000 from complainant as illegal gratification and he had received Rs.1,000 and remaining amount was to be paid to him, but as a result of trap accused was arrested---Offence allegedly committed by accused not falling within prohibitory clause of S.497, Cr.P.C. accused was liable to be released on bail.

M. Ilyas Khan for Applicant.

S. Mamnoonul Hassan, Dy. X. G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1595 #

2000 P Cr. L J 1595

[Karachi]

Before Muhammad Roshan Essani, J

NAZAR KHAN and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.945 of 1999, decided on 25th November, 1999.

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

----Ss. 369 & 497---Bail application---Alteration of judgment---Jurisdiction of Court---Fresh grounds of bail---Consideration of---Court, after having signed the judgment could not alter or review the same except to correct a clerical error---Court, after signing and pronouncing .the judgment would become functus officio as case had attained finality so far that Court was concerned---Provisions of S.369, Cr.P.C. had not put any embargo/restraint on the powers of Court in respect of passing any order on any application or otherwise at any stage of the case on same subject-matter---If a fresh ground was raised which was not considered in the previous bail application, Court was not devoid of power and jurisdiction to adjudicate the same.

Gulzar Hassan Shah v. Ghulam Murtaza PLD 1970 SC 335 and Maqbool Ahmed Shaikh v. The State Criminal Bail Application No.1248 of 1996 ref.

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

----S. 497---Prevention of Corruption Act (II of 1947), S.5(2)---Penal Code (XLV of 1860), Ss. 161 & 342---Bail, grant of---Bail application earlier filed by accused was dismissed by High Court with observation that accused could repeat their plea for bail at any subsequent stage of case if fresh ground became available to them---Accused filed another application wherein they had raised fresh grounds to the effect that more than eight months had passed, but so far even the charge had not been framed and that in departmental enquiry held against them they were proved innocent as charge against them was not established and that ground was not considered by Court while deciding the previous bail application---Prosecution witnesses were inter se related and interested---Some of prosecution witnesses had exonerated accused persons from culpability in commission of offence in their affidavit ---Challan was submitted after eight months---Case against accused, in view of fresh grounds, necessitated further inquiry as contemplated under S.497(2), Cr.P.C.---Accused were found entitled to bail in circumstances.

Nadim Hamid v. The State PLD 1997 Kar. 494; Mooso' v. The State 1996 PCr.LJ 361; Abdul Karim alias Raja and another v. The State 1996 PCr.LJ 503; Abid Rashid v. State 1995 MLD 1829; Asma Khatoon v. Syed Shabbir Hussain Shah, A.C.M. and F.C.M., Court-IV, Karachi West and 2 others PLD 1996 Kar. 517; Kanwar Khalid Younus v. The State 1993 PCr.LJ 437; Muhammad Amin v. The State 1973 PCr.LJ 661; Saleem Akhtar v. The State PLD 1980 Lah. 127; Muhammad Aslam v. The State 1997 PCr.LJ 1736 and Ghulam Qasim v, Superintendent District Jail, Multan and another 1993 PCr.LJ 2066 ref.

Gul Zaman Khan for Applicant.

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

PCRLJ 2000 KARACHI HIGH COURT SINDH 1603 #

2000 P Cr. L J 1603

[Karachi]

Before Muhammad Roshan Essani, J

NOOR-UR-REHMAN---Applicant

Versus

THE STATE---Respondent

Bail Application No.263 of 1999, decided on 29th March, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324/147/148/149---Bail, grant of---Allegation against accused was that he caused Chhuri blows to prosecution witness who was father of the complainant---Ocular and medical evidence with regard to wound on person of injured prosecution witness was in conflict with each other---Enmity between the parties existed over matrimonial dispute---Case against accused, in circumstances, necessitated further enquiry as contemplated under S.497(2), Cr.P.C. and accused was entitled to bail.

Amjad Ali for Applicant. Sharafat Ali Khan on behalf of A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1607 #

2000 P Cr. L J 1607

[Karachi]

Before Muhammad Roshan Essani and Ghulam Nabi Soomro, JJ

IQBAL alias LADLA and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeals Nos. 148 and 167 of 1998 and Criminal Revision No.4 of 1999, decided on 5th January, 2000.

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

----S. 302/34---Appreciation of evidence---Complainant and prosecution witnesses were nearest relatives of deceased---Mere relationship of witnesses though was no reason to disbelieve their testimony, but their evidence with regard to identification of accused, removal of dead body and statement of ocular witness was contradictory---Complainant had failed to identify accused when he was examined at the time of his deposition at first trial--Other eye-witnesses also failed to identify accused person even during second trial though they had seen said accused at the time of their first trial---Such fact itself reflected upon veracity of the witnesses---Contradictions were noticed between version of complainant, other prosecution witnesses and police with regard to time and place of removal of dead body of deceased--Complainant, prosecution witnesses, police and even the doctor all had suppressed true fact from the Court which had proved that some other secret hands were keeping control over all such things---Police came in action and carried investigation unauthorisedly without first recording F.I.R. and without first conducting post-mortem of deceased---Prosecution witnesses had contradicted complainant about first incident which was root cause of the occurrence---Enmity of complainant party with accused party had fully been prove I---F.I.R. was lodged after burial of dead body of deceased and investigation was conducted without F. I. R. ---Recovery of gun allegedly used in the occurrence was made after about live weeks of arrest of accused--Alleged recovery was made from thickly populated area, but no private Mashir was joined by police and gun was not sent to Expert for examination---No empty was recovered from place of Wardat--Recovery of gun from accused, in circumstances, was of no consequence and could not corroborate ocular evidence---Motive having come from the mouth of same witnesses whose evidence needed corroboration, could not be believed---Prosecution having failed to prove case against accused, conviction and sentence awarded to them were set aside, in circumstances.

Nazir Muhammad alias Nazir Ahmed v. The State PLD 1974 Kar. 274; Muhammad Sadiq v. Muhammad Sarwar and 2 others PLD 1973 SC 469; Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928; Rehmat and others v. The State Criminal Appeal No.7 of 1958; Sardara v. Nazira and others Criminal Appeal No. 15 of 1958; Mathela v. The State Jail Petition No.86 of 1958; PLD 1958 SC 109; Rasool Bux and another v. The State 1980 SCMR 225 and Muhammad Sadiq v. Muhammad Sarwar and 2 others 1979 SCMR 214 ref.

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

----S. 302/34---Motive---Value---Evidence of motive was always considered to be a weak piece of evidence and was double-edged weapon which cut both ways---Motive was also considered to be second name of enmity and was considered to be sufficient for commission of offence and for false implication as well.

The State v. Muhammad Yasin 1995 SCMR 635 ref.

A.Q. Halepota for Appellant Nemo for the State.

Date of hearing: 8th December, 1999

PCRLJ 2000 KARACHI HIGH COURT SINDH 1635 #

2000 P Cr. L J 1635

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

LUTUFULLAH---Applicant

versus

THE STATE and 9 others---Respondents

Criminal Transfer Application No.47 of 1999, decided on 25th November, 1999.

(a) Suppression of Terrorist Activities (Special Courts) Act (XV of 1975)--

---Preamble & S.5-A(1)---Object of Act---Intention of Legislature in promulgating Suppression of Terrorist Activities (Special Courts) Act, 1975 was suppression of acts of sabotage, subversion, terrorism and to provide for speedy trial of offence" committed in furtherance or in connection with such acts---Special Court would proceed with trial from day to day and would decide case speedily---Special Court would not adjourn any trial for any purpose, unless the adjournment was, in its opinion, necessary in the interest of justice and no adjournment would be granted for more than two days.

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

----S. 526---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.4-A---Penal Code (XLV of 1860), S.302---Transfer of case--Complainant/applicant seeking transfer of case on certain allegations against Trial Court, had not pointed out as to what wrong or improper order in law was passed by Trial Court to the detriment of applicant---If an order passed against a party was wrong, improper or in violation of law, it was not always a valid ground for transfer of a case, unless it was shown that it was a biased order---Transfer of a case from one Court to another was only justified when there was a "reasonable apprehension" in the mind of party that Court would not act fairly in imparting justice---Court had to cautiously assess whether apprehension expressed by party was really such as a reasonable man might justifiably be expected to have, looking at the peculiar facts and circumstances of each case--.-Contention of applicant/complainant that mere apprehension in the mind of the party, that he would not get justice was sufficient for transfer of case was devoid of force because test of reasonableness of apprehension must be satisfied and apprehension must be such as a reasonable man might justifiably be expected to have ---Self-procured mistrust and expression of having no confidence in the Court, merely based on general and vague allegations, was not sufficient for transfer of case- --Contention that case could be transferred from one District to another District as it would be convenient to applicant/complainant or his counsel, was not sufficient and did not justify transfer of case on that ground as Court had preferably to see convenience of accused in comparison to convenience of complainant or his counsel---Convenience of both parties had to be taken into consideration---In absence of reasonable ground for transfer of case, application for transfer of case, was dismissed, directing Court to decide case as early as possible.

Muhammad Nawaz v. Ghulam Qadir and others PLD 1973 SC 327; Talib Hussain and others v. The State 1987 PCr.LJ 1319; Muhammad Malik v. Muhammad Farooq and 2 others 1993 PCr.LJ 1362 and Muhammad Tariq Anis Pirzada v. The State NLR 1993 Cr.LJ 5 ref.

Ghulam Qadir Jatoi for Applicant.

Syed Jalil Ahmed Hashmi, A.A.-G. for Respondents

PCRLJ 2000 KARACHI HIGH COURT SINDH 1715 #

2000 P Cr. L J 1715, [Karachi]

Before Muhammad Roshan Essani, J

Ms. RACHEL JOSEPH---Appellant

versus

AFTABUDDIN QURESHI and 2 others---Respondents

Criminal Acquittal Appeal No.75 of 1998, decided on 1st November, 1999.

Criminal Procedure Code (V of 1898)---

----S. 417(2-A) [as inserted by Code of Criminal Procedure (Second Amendment) Act (XX of 1994)]---Appeal against acquittal by private party--Amendment in law relating to procedure ---Retrospectivity---Appeal against acquittal could be filed under S.417(2-A), Cr.P.C. in any case by an aggrieved person---Amendment in Cr.P.C. allowing appeal by private aggrieved party being procedural in nature would have retrospective effect.

Joseph Suche & Co. Ltd. (1875) 1 Ch.D 41; Adrian Afzal v. Cap.

Sher Afzal PLD 1969 SC 187; Zahid Ali v. Sheikh Abdul Hameed and another 1996 PCr.LJ 586; PLD 1965 SC 681 and PLD 1969 SC 599 ref.

M. Ilyas Khan for Appellant.

Abdul Latif Channa for Respondents.

Date of hearing: 31st August, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1721 #

2000 P Cr. L J 1721

[Karachi]

Before Ghulam Nabi Somroo and S.A. Rabbani, JJ

JAWED AHMED SIDDIQVI --- Appellant

versus

THE STATE---Respondent

Special Anti-Terrorism Appeals Nos.77, 78, 79 and 80 of 1999, decided on 30th March, 2000.

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

----S. 6(a)---Penal Code (XLV of 1860), Ss.302(b)/34 & 392/34---Murder--Death was caused by sharp-cutting weapon such as knife---No threat with use of force to prevent a public servant from discharging lawful duty was attributed to accused---Provision of S.6(a), Anti-Terrorism Act, 1997 was not attracted in circumstances.

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

----S. 6(b)---Penal Code (XLV of 1860), Ss.302(b)/34 & 392/34---Terrorist act---Scheduled offence---Provision of S.6(b), Antiterrorism Act, 1997 is attracted in case of commission of a scheduled offence ---Qatal-e-Amd and robbery---Offence under S.302, P.P.C. is scheduled offence if same is committed with a canon, grenade, bomb, rocket or the victim is a member of police, armed forces, civil armed forces or is a public servant---Where, however, such conditions were not available in the case provision of S.6(b), Anti-Terrorism Act, 1997 was not attracted.

----S. 2(e) & Sched.---Penal Code (XLV of 1860), Ss.302/34 & 392/34--Scheduled offence---Murder----If death is caused during or while committing robbery, or if in committing the offence of robbery, the offender commits murder, the offence would fall in the Schedule to Anti-Terrorism Act, 1997.

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

----Ss. 6 & 12---Penal Code (XLV of 1860), Ss.302/34 R 392/34---Dacoity and murder---Scheduled offence---Jurisdiction of Anti-Terrorism Court--Scope---No eye-witness of the incident existed and details of the commission of the offence had come to the knowledge of the prosecution only through confessional statements of the accused---Accused in their statements had not said that they had committed murder on any resistance to the robbery, by the person killed, or in any way, to facilitate the robbery---Offence committed by accused persons being not covered by S.6, Anti-Terrorism Act, 1997, charge under S.7 of the Act was not valid which consequently, affected determination of jurisdiction of Trial Court---Offences committed by accuses persons being not covered by S.6 or Schedule to the Anti-Terrorism Act, 1997---Anti-Terrorism Court under S.12, .Anti-Terrorism Act, 1997 was not legally competent to try the case---Conviction and sentences of accused persons having been awarded by the Special Court were set aside by the High Court in appeal and case was remanded to the Sessions Court for trial afresh.

Abdul Qadir Halepota and Ibrahim Abbasi for Appellants.

Date of hearing: 21st March, 2000.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1729 #

2009 P Cr. L J 1729

[Karachi]

Before Muhammad Ashraf Leghari and Muhammad Roshan. Essani, JJ

STATE through Advocate-General, Sindh---Appellant

versus -

MUHAMMAD TAUSEEF alias TAIMOOR and another---Respondents

Special Criminal Acquittal Appeal No. 171 of 1999, decided on 30th November, 1999.

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

---S. 25---Criminal Procedure Code (V of 1898), S.417---Penal Code (XLV of 1860), S.302/460---Appeal against acquittal---No ocular evidence in respect of murder of deceased was available---Complainant had seen his deceased wife dead on bed with some :injuries on her person---No eyewitness of occurrence was available and only evidence against accused was that police had recovered some golden ornaments on pointation of accused after his arrest---Complainant had not specified alleged robbery of ornaments in F.I.R. but informed police after about five days of occurrence that some of the ornaments were missing from his house ---Chhuri allegedly used in occurrence was stated to have been taken by accused from prosecution witness, but said prosecution witness denied the statement saying that Chhuri recovered from accused was not the same which he had handed over to the accused---Nobody had seen the accused coming into or going out of the house or around the scene of offence at relevant time---Merely because some of the ornaments, which did not figure in the F.I.R., were recovered from accused would not be safe reason to award conviction to him---Trial Court, therefore, had rightly acquitted accused persons on the ground, of discrepancies in the case---Judgment of Trial Court which was not perverse, illegal or ridiculous and did not suffer from misreading of evidence leading to miscarriage of justice, . was not set aside in appeal against acquittal.

Shafi Muhammad v. The State PLD 1971 Kar. 721 ref.

(b) Anti-Terrorism Act (XXV1I of 1997)---

----S. 25---Criminal Procedure Code (V of 1898), Ss. 410 & 417---Appeal against conviction/acquittal-.--Distinction----Considerations for appeal against conviction and appeal against acquittal were much different---While dealing with appeal against acquittal impugned judgment has to be looked into to see whether it was perverse and on perusal of evidence no other conclusion could be made except that accused was guilty or there had been complete misreading of evidence leading to miscarriage of justice---High Court was slow to set aside judgment of acquittal---Acquittal of accused attaches double presumption of innocence in his favour.

----Evidence---Circumstantial evidence---Guiding factors for awarding sentence on basis of circumstantial evidence---Court had to be more cautious in awarding sentence relying upon, circumstantial evidence---Presumption and conjecture, however, strong they might be, Court had to be vigilant about the same while discussing matter involving such situation---Links in such situation should be in chain and nothing should be missing but all circumstances must lead to guilt of accused and nothing else.

Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928; Yar Muhammad and 3 others v. The State 1992 SCMR 96; Imran Hussain v. Amar Arshad and 2 others 1997 SCMR 438; State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408 and The State v. Haji LAI Muhammad and others Special Anti-Terrorism Acquittal Appeal No. 103 of 1999 ref.

S. JAM A. Hashmi, A.A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1734 #

2000 P Cr. L J 1734

[Karachi]

Before Muhammad Roshan Essani and Ghulam Nabi Somroo, JJ

ABDUL QADIR MOTIWALA---Applicant

versus

THE STATE---Respondent

Criminal Miscellaneous Application No.4A of 2000, decided on 14th March, 2000.

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

----Art. 38---Confession---Admissibility---Confession made before a person in authority and confession made against co-accused, was inadmissible and such a confession was hit by Art.38 of Qanun-e-Shahadat, 1984

Hajan Khan and 2 others v. The State 1969 PCr.LJ 1285 an c Shabiul Hassan v. The State PLD 1991 SC 898 ref.

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

----S. 561-A---Quashing of proceedings---Object of S.561-A, Cr.P.C whereby inherent powers were conferred on High Court was to do real and substantial justice and to prevent abuse of process of Court--To secure ends of justice, powers of high Court were very wide--Proceedings pending before Trial Court against applicant/accused, being abuse of process of Court,. could be quashed to the extent of the accused.

M.S. Khawaja v. The State PLD 1965 SC 287; Muhammad Bux v. Sub-Divisional Magistrate, District Badin PLD 1999 Kar. 366 and Gulzar Ahmed Shaikh v. M. N. Salar and others 1999 PCr.LJ 1154 ref.

Muhammad Saleh Panhwar for Applicant.

Shoib M. Astlraf on behalf of A.N.F.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1748 #

2000 P Cr. L J 1748

[Karachi]

Before Wahid Bux Brohi and Ghulam Nabi Somroo, JJ

SHER DIL KHOSO---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 129 of 1999. decided on, 15th January, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.420/467/471/10y---Bai:, grant of---Huge amount was drawn by unknown persons through forged cheques from the Bank---Certain offences alleged against accused were not bailable--Accused, prima facie, appeared to be involved in said offences as Bank Officers, who were well-skilled in marking differences between forged signatures and original one overlooked the forged signatures---F. I. R., though was registered after lapse of more than eight months, but ground of delay in recording of F.I.R. was not always to be resolved against prosecution for purpose of bail---Circumstances having clearly made out a prima facie case against accused, bail could not be allowed.

PLD 1963 SC 478; 1986 P6.LJ ' 2510 and 1992 PCr.LJ 2127 ref.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1752 #

2000 P Cr. L J 1752

[Karachi]

Before Muhammad Roshan Essani and Ghulam Nabi Soomro, JJ

SHAUKAT MEHMOOD and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No. 1280 of 1999, decided on 5th January, 2000.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss:9(c) & 14---Bail, grant of---Huge quantity of Charas was recovered from the possession of accused who were apprehended on the spot---Contention of accused that they were made victims of enmity with absconding accused, was devoid of force because except solitary word of accused no material had been placed on record from which it could be inferred that the case was an outcome of enmity and that police had entangled accused persons falsely in the case---No documentary or other material had been produced from which it could be concluded that Mashirs of recovery were stock-witnesses as alleged by accused---Evidence of a prosecution witness could not be discarded in every case merely on ground that a particular person had acted as a prosecution witness in some other case---Case, in view of peculiar facts and circumstances of the case was not fit for grant of bail.

Wali Muhammad v: Mian Muhammad Abrar Khan and others 1969 PCr. LJ 1111; Manzoor and others v. The State PLD 1972 SC 81; Khushi Muhammad v. The State 1978 SCMR 360; Muhammad Aslam v. The State 1982 PCr.LJ 529; Muhammad Saleem Raza v. The State PLD 1983 Lah. 155; Hassan Arshad and others v. The State 1987 PCr.LJ 466; Syed Iqbal Hassan and others v. The State 1991 PCr.LJ Note 278 at p.196; Farzand Ali v. The State 1993 MLD 2548; Muhammad Ayub v. The State 1993 MLD 86; Shah Zaman and others v. The State PL D 1994 SC 65; Muhammad Boota v. The State 1997 PCr.LJ 1974; Rahim Bux v. The State 1997 PCr.LJ 1450; Muhammad Yakoob v. The State 1998 PCr.LJ 128; Muhammad Usman v. The State.1998 Pt7r.Ll 370; Mst. Nasreen Bibi v. The State 1999 PCr.LJ 1319 and Gul Zaman v. The State 1999 SCMR 127,1 ref.

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

----S. 497---Bail, grant or refusal of----Principles---.Court had to make tentative assessment for purpose of grant or refusal of bail---Law did not warrant deeper appreciation of evidence at bail stage.

---- Opinion of Police Officer or an Investigating Agency was not binding upon Court.

Inamullah Khan for Applicants.

Nemo for the State:

PCRLJ 2000 KARACHI HIGH COURT SINDH 1758 #

2000 P Cr. L J 1758

[Karachi]

Before Muhammad Ashraf Leghari, J

MUHAMMAD ISMAIL ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-42 of 2000, decided on 24th February, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.420/468/47.7-A/34---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, grant of---Offences alleged against accused were not covered by prohibitory clause contained in S.497(1), Cr.P.C. because offences against accused under Ss.468 & 477-A, P.P.C. were non-cognizable whereas offence under S.420, P.P.C. was bailable ---Documents alleged to be bogus and fraudulent, were in possession of Government Officer which could not be tampered with by accused--Involvement of accused in commission of offence and fact that he had connived with officials of Municipal Corporation, was yet to be established at the time of trial---Name of accused did not figure in F. I. R. ---Possibility that accused being a private man might have been cheated by public servants by receiving amount from him could not be overruled at bail stage ---Co-accused had been granted interim pre-arrest bail---In absence of reasonable grounds to believe that accused was guilty of offence with which he was charged, accused was entitled to bail.

Ijaz Akhtar v. The State 1978 SCMR 64; Ghulam Qasim alias Muhammad Qasim and another v. The State 1991 PCr.LJ 2418; Said Farooqi v. The State 1995 PCr.LJ 643 and Sikander v. The State 1995 SCMR 387 ref.

Muhammad Nawaz Chandio for Applicant.

Ali Azhar Tunio, Asstt. A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1761 #

2000 P Cr. L J 1761

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

ZAFAR ALI ---Applicant

versus

THE STATE---Respondent

Bail Application No. 1041 of 1999, decided on 2nd December, 1999

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of , 1860), Ss.353. & 324---Bail, grant of--Names of accused did not transpire in the F.I.R. and no description with regard to prominent features of assailant was given in F.I.R. as well as in statements under S.161, Cr.P.C.---No explanation was available in charge-sheet for holding delayed identification---Case of prosecution was that the firing was made from inside of the running vehicle, but empties of different fire-arms were found on the scene of offence---Empties in case of firing from inside the vehicle would fall inside the vehicle and not outside---Case of prosecution was that there was an encounter in which firing from both sides was made, but not a single scratch was found on vehicle allegedly used in encounter---Peculiar facts and circumstances of case , particularly identification of five culprits sitting in a vehicle running at fast speed, nature of injury and conduct of injured and previous enmity of accused with police personnel coupled with fact that name of accused, who was a businessman, not appearing in F.I.R., prosecution story put forth by police did not ring true---Prima facie reasonable grounds existed to believe that accused was not guilty of the offence and case necessitated further enquiry as contemplated under S.497(2), Cr.P.C.---Accused was granted bail, in circumstances.

Manzoor and others v. The State PLD 1972 SC 81 and Meeran Bux v. The State PLD 1989 SC 347 ref.

Shaukat Hussain Zubedi and Khawaja Sharful Islam for Applicant.

S. Jalil Hashmi, A.A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1775 #

2000 P Cr. L J 1775

[Karachi]

Before Muhammad Ashraf Leghari, J

Haji DHINGANO---Applicant

versus

THE STATE---Respondent . .

Criminal Bail Application No.S-21 of 2000, decided on 23rd February, 2000.

Criminal Procedure Code (V of 11898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11/16---Bail, grant of---Plea of accused that alleged abductee was living with him and had married with - him on her own accord prior to registration of case against him, had support from affidavit of alleged abductee in which she had stated that she was betrothed with accused, but later on when her parents did not fulfill their commitment she married with accused with her own will---Alleged abductee produced Nikahnama in Court---Genuineness of affidavit and Nikahnama, though was yet to be evaluated at the time of trial, but same could not be altogether ignored---Alleged abductee having claimed to be married with accused, no allegation of Zina could be levelled against the accused---Section 16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which carried punishment of seven years only was not covered by prohibitory clause of S.497(1), Cr.P.C.---Complainant having involved all male and female members of the family of accused false involvement of the accused could not be ruled out in circumstances---In absence of reasonable ground to believe that accused had been guilty of any non-bailable offence, case against accused required further enquiry---Accused was granted bail, in circumstances.

Ali Nawaz Ghanghro for Applicant.

Altaf Hussain Surahiyo for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1777 #

2000 P Cr. L J 1777

[Karachi]

Before Muhammad Roshan Essani, J

SABIR HUSSAIN and 3 others---Applicants

versus

TH E STATE---Respondent

Criminal Bail Application No.294 of 2000, decided on 22nd March, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16---Penal Code (XLV of 1860), S.494---Bail, grant of---Alleged abductee had deposed in her statement under 5.164, Cr.P.C. that she was not kidnapped - or abducted by any person nor any forceful act of sexual intercourse was committed with her---Lady had further stated in her statement that complainant (her father) wanted to marry her with someone against her Will and wish, therefore, she left the house of her parents and performed Nikah with the accused---Medical Certificate had revealed that no mark of violence was .found on her person and that she was aged about 25 years ---F.I.R. was belated by twelve days and no plausible explanation with regard to said inordinate delay had been given by prosecution---Section 16 of Offence of Zina (Enforcement of Hudood Ordinance, 1979, was not punishable with death, imprisonment for life or for ten years---Section 494, P.P.C. was non-cognizable, bailable. and compounded with permission of Court and it was yet to be determined whether offence of accused fell under S.16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 or under 5.494, P.P.C. which could be determined by Trial Court upon evidence adduced by parties---Case against accused being of further inquiry, he was entitled to bail.

Syed Mujahid Hussain Shah for Applicant. Muhammad Noman Khan for the Complainant. Habibur Rasheed on behalf of A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1781 #

2000 P Cr. L J 1781

[Karachi]

Before Muhammad Ashraf Leghari and Muhammad Roshan Essani, JJ

THE STATE through Advocate-General/Public Prosecutor, Sindh---Appellant

versus

SHAHID HAFEEZ and another---Respondents

Anti-Terrorism Acquittal Appeal No. 108 of 1999, decided on 16th December, 2000.

Anti-Terrorism AM (XXVH of 1997)---

----S. 25---Criminal Procedure Code (V of 1898), S.417---Penal Code (XLV, of 1860), S.302/109/34---Appeal against acquittal---Name of accused did not figure in the F.I.R. and subsequent identification test had not been held--Features and description of culprits were not given in the F. I. R.---Statements of alleged eye-witnesses were recorded after 17 days with no explanation for said inordinate delay---Accused, who were Government employees were on their duties at the relevant time ---Arrest of accused was under dispute and evidence of witnesses suffered. from material discrepancies---Complainant was not eye-witness of occurrence, but he received information about death of his wife from someone else and complainant lodged F.I.R. without naming any, person ---Eye (witnesses who resided far away from the place of incident and not stated reasons for going to the place of incident at relevant time---Both eye-witnesses had materially contradicted each other ---Mashir and Investigating Officer had contradicted each other in respect .of date of arrest of accused and said arrest and recovery of any weapon did not implicate accused or connect him with commission of murder---Accused by producing oral as well as documentary evidence had proved that he was on his duty at relevant time---Trial Court in circumstances had rightly acquitted the accused---Acquittal order based on evidence on record not suffering from any misreading or non=reading of evidence and not being perverse and illegal, could not be interfered with in appeal.

Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928; Yai Muhammad and 3 others v. The State 1992 SCMR 96; Imran Hussain v. Amar Arshad 'and 2 others 1997 SCMR 438 and State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408 ref.

S. Jalil A. Hashmi, A.A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1786 #

2000 P Cr. L J 1786

[Karachi].

Before Muhammad Roshan Essani, J

LAKHI---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 157 of 1995, decided on 15th March, 2000.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---All material witnesses were closely related inter se---Complainant who was father of deceased being not an eyewitness as story of occurrence was told to him by prosecution witnesses, no reliance could be placed on his statement qua accused unless other cogent and convincing evidence was available to connect accused with. commission of crime---Statement of one of the prosecution witnesses was recorded by police after 2/3 days---In absence of any explanation of delay in recording his statement under 5.161, Cr.P.C. his evidence could be ruled out of, consideration---Statements of other prosecution witnesses were not recorded, by police on, the day of, incident and no explanation was given for that omission---Presumption could be that said witnesses were not present at the scene of offence at the time of incident as such .their evidence could not be believed---Evidence of recovery of hatchet on pointation of accused, was highly doubtful---Motive of occurrence was flimsy and inadequate---State Counsel had frankly conceded that entire prosecution case was doubtful and that no conviction could be sustained upon quality of evidence produced by prosecution---Prosecution having failed' to prove charge of murder against accused beyond reasonable doubt, conviction and sentence awarded to accused were set aside and they were acquitted of charge.

A.Q. Halepota for Appellant.

Muhammad Saleh Panhwar for the State.

Date of hearing: 28th February, 2000.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1792 #

2000 P Cr. L J 1792

[Karachi]

Before Ghulam Nabi Soomro and Wahid Bux Brohi, JJ

IMRAN AKBAR and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.84 of 1999, decided on 28th October, 1999, Control of Narcotic Substances Act (XXV of 1997)---

----S. 6/9---Appreciation of evidence---All three accused were real brothers inter se and it would hardly appeal to a prudent mind that all three of them were taking away huge quantity of Charas in their hands in busy morning hours of, the day---Private citizen who was made Mushir, was not examined and was held back and instead' other police official was examined and no explanation was given by prosecution for the change of prosecution witness---Complainant has given inconsistent statement which had contradicted statement of prosecution witness---Chemical Examiner's Report had shown that samples were sent on two different dates after more than fifteen days of alleged recovery---Prosecution evidence, thus, could not be termed as truthful and free from doubt---Prosecution having , failed to prove its case beyond any shadow of reasonable doubt, conviction and sentences awarded to accused by Trial Court were set aside.

1992 MLD 90; 1994 SCMR 1612; 1998 PCr.LJ 808 and 1995 SCMR 1345 ref

Shahadat Awan for Appellant. Habib Ahmad, A.A. -G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1796 #

2000 P Cr. L J 1796

[Karachi]

Before Muhammad Roshan Essani, J

ALI AKBAR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 1151 of 1999 and First Criminal Bai' Applrcation No. 1044 of 1998, decided on 16th December, 1999.

Criminal Procedure Code (V of 1898)--

----S. 497---Penal Code (XLV of 1860), S.395/34---Bail, grant of---Accused seeking bail on ground of statutory delay had pleaded that about 21 months had lapsed, but his trial had not yet concluded---Accused had not filed case diaries of Trial Court from which it could be found that trial was not delayed on account of any act or omission on part of accused or any other person acting on his behalf---Accused alongwith his companions barged into house of complainant and committed dacoity at gun point---Accused took away valuable property worth lacs of rupees from house of complainant in car belonging to complainant---Looking towards peculiar facts and circumstances of case, ground of statutory delay was not available to accused---While considering bail plea on ground of statutory delay, Court had to take into consideration evidence collected by prosecution and if case fell within purview of fourth proviso to S.497(1), Cr.P.C. Court could refuse bail because third proviso to S.497(1), Cr.P.C. was controlled by fourth proviso to S.497, Cr.P.C.--Act of robbery/dacoity and car-snatching by accused amounted to terrorism---Bail plea of accused merited no consideration---Bail application was dismissed in circumstances.

Amir Qadir v. The State 1995 PCr.LJ 547; Muhammad Ameen v. The State 1995 PCr.LJ 637; Zahid Hussain Shah v. The State PLD 1995 SC 49; Muhammad Yousuf v. The State 1999 PCr.LJ 501; Ali Hassan alias Mithu v. The State 1997 PCr.LJ 411; Jaggat Ram v. The State 1997 SCMR 361; Rizwan Hassan v. The State 1999 MLD 2293 and Sahahee v. The State 1999 PCr.LJ 1062 ref.

Sathi M. Ishaque for Applicant. Syed Jalil A. Hashmi, Asstt. A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1816 #

2000 P Cr. L J 1816

[Karachi]

Before Muhammad Ashraf Leghari, J

ABDUL MALIK ---Applicant

versus

THE STATE---Respondent

Criminal Bail No. 1213 of 1999, decided on 2nd May, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 147, 148 & 149--Bail, grant of---Vicarious liability, principle of---Applicability---Accused alongwith co-accused was seen firing on opposite-party by T.T. Pistol--Accused was himself injured- in firing and he was armed with T.T. Pistol--Effect---Fatal shot might not have been fired ty the accused but at least his presence at the spot was established---Accused could be vicariously liable for the death of the deceased---Where there were no reasonable grounds to believe that the accused was not guilty of the offence with which he was charged, he was not entitled to bail---Bail was refused in circumstances.

Shah Zaman and 2 others v. The State PLD 1994 SC 65 and Ghulam Nabi v. The State 1996 SCMR 1023 ref.

Khadim Hussain Abro for Applicant.

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

Date of hearing: 2nd May, 2000.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1870 #

2000 P Cr. LJ 1870

[Karachi]

Before Ghulam Nabi Soomro and Wahid Bux Brohi, JJ

IMRAN AMIN ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.981 of 1999, decided on 5th June, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.6/9--Bail, grant of---Prosecution case, prima facie, had disclosed commission of a cognizable offence punishable with sentence up to death---Substantial accusation being available against accused, his case did not fall within ambit of S.497(2), Cr.P.C. entitling him to grant of bail---Bail was declined to accused, in circumstances.

2000 SCMR 677; PLD 1996 SC 241; 1998- PCr.LJ 128; PLD 1993 SC 473 and PLD 1996 SC 632 ref.

Shoukat Hayat and M. Ilyas Khan for Applicant.

Shoaib M. Ashraf, Special Prosecutor, A.N.F. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1882 #

2000 P Cr. L J 1882

[Karachi]

Before Muhammad Roshan Essani and Abdul Ghani Shaikh, JJ

MUHAMMAD SHARIF SHAR---Appellant

versus

THE STATE---Respondent

Criminal Appeals Nos.76 and 77 of 1999, decided on 11th May, 2000.

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

----S.27---Defective investigation---Criminal Procedure Code (V of 1898), Ss.537 & 156---C-ise against accused was that he being Investigating Officer in a criminal case after completion of investigation had failed to mention names of Mashirs of identification parade in charge-sheet with the result that those Mashirs were not examined by Trial Court and case resulted in acquittal of the accused---Evidence on record had shown that Mashirnama of Identification was produced by Sub-Divisional Magistrate in whose presence identification test was held---Names of Mashirs with addresses transpired in Mashirnama---If due to any bona fide mistake/omission, any irregularity was committed by accused/Investigating Officer that could have been rectified by the Trial Court by summoning Mashirs and entire trial was not to be vitiated due to said irregularity as the same was curable under 5.537, Cr.P.C.---Accused, even otherwise, could not be punished as it was not proved beyond shadow of doubt that he intentionally and improperly, without due diligence, had failed to pursue case and that he had acted in breach of his duties---Conviction and sentence of accused were set aside.

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

----S. 27---Criminal Procedure Code (V of 1898), S.156---Defective investigation---Case against Investigating Officer was that he in a criminal case during course of investigation did not mention about "sugarcane crop" wherefrom the accused involved in that case slipped away---Further allegation against the Investigating Officer was that he had failed to recover empties from the place of Wardat and to seal the Kalashnikov which was recovered from accused at the spot---Investigating Officer in his statement recorded under S.342, Cr.P.C. which appeared to be more plausible and convincing, had stated that he did not act individually, but had acted as per instructions of his superior officers and stated the circumstances under which he could not find out/recover the empties---Investigating Officer had further stated that soon after the incident, he was reverted and was directed to hand over the charge---Regarding non-sealing of Kalashnikov, Investigating Officer had stated that he was directed by his superior officer to proceed/move ahead and in obedience to orders of his superiors he moved immediately---Allegations that accused/Investigating Officer had intentionally and improperly, without due diligence, had failed to pursue case and had acted in breach of his duties, was not proved beyond shadow of doubt---Investigating Officer, in circumstances, could not be convicted and sentenced---Conviction and sentence awarded to accused by Trial Court were set aside.

----"Law", defined.

(d) Criminal trial--

---- Mens rea---Miens rea/intention was very essential for constituting a criminal offence.

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

----S. 540---Power of Court under S.544, Cr.P.C.---Scope---Power of Trial Court to summon material witness. or examine the person present --Provisions of S.540, Cr.P.C. conferred wide powers upon Trial Court--Section 540, first part, Cr.P.C. was mandatory, whereas second part of the section was obligatory---Trial Court, in order to ascertain truth and to arrive at a just decision of case, at any stage of case could summon, examine or recall and re-examine any person already examined---Object of S.540, Cr.P.C. was to enable Court to elucidate/ascertain truth, in order to impart justice which was the primary duty of the Court---Court, in exercise of powers under S.540, Cr.P.C. was not absolved from performing its duty because of certain technicalities---If evidence of any person was essential for the just decision of case, irrespective of the fact that his name was mentioned in charge-sheet, Court could summon and examine the said person---Powers of Court under S.540, Cr.P.C. were unfettered and could be exercised at any stage of case before pronouncement of judgment.

(f) Administration of justice-:-

---- Duty of Court---Courts were sanctuaries of the rights of the persons brought before them---Courts should leave no stone unturned in discharge of their duty conferred upon them by statute and should not hesitate in exercising powers to do real justice---Justice hurried would mean justice buried.

(g) Criminal trial--

---- Joint trial---Where cases amalgamated by Trial Court pertained to different police stations and investigated by different Investigating Officers joint trial of accused, would be illegal---Criminal Procedure Code (V of 1898), S.239.

(h) Maxim---

---- Justice hurried is justice buried.

Qurban Ali Chohan for Appellant.

Mian Khan Malik, Addl. A.-G., Sindh for the State.

Date of hearing: 18th January, 2000.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1894 #

2000 P Cr. L J 1894

[Karachi]

Before Muhammad Ashraf Leghari, J

SARWAR and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No. 1.19 of 2bW, decided on 9th May, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.380/457/459---Bail, grant of--F.I.R. was lodged promptly and names of the accused persons appeared therein with a specific part assigned to each of them---No enmity was found between the parties so as to claim false implication on that account---Incident having taken place in house of complainant, inmates of house were natural witnesses---Case against accused persons was covered by prohibitory clause contained in S.497(2), Cr.P.C.---Case having not yet been proceeded up to the stage where it could be said that reasonable grounds appeared to believe that accused were not guilty of offence with which they were charged, accused were not entitled to bail, in circumstances.

Ghulam Ali J. Rind for Applicants.

Ali Azhar Tunio, Asstt. A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1898 #

2000 P Cr. L J 1898

[Karachi]

Before Ghulam Nabi Soomro and S.A. Rabbani, JJ

HABIBULLAH KHAN---Applicant

versus

THE STATE---Respondent

:Criminal Miscellaneous Application No.67 of 2000, decided on 30th May 2000.

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

----S. 561-A---Quashing of proceedings---Inherent jurisdiction, exercise of--Scope---Inherent jurisdiction under S.561-A, Cr.P.C. vesting in High Court was not available for throttling process of trial before a Trial Court nor was it aimed at allowing accused of substantive offences seeking their release through short cut methods by invoking inherent jurisdiction---Insufficiency or inadequacy of evidence, could not form a ground for quashing of case nor some lack of evidence would be a valid or legitimate ground for the purpose---Criminal case could be quashed where there was total lack of prosecution evidence---Provisions of S.561-A, Cr.P.C. were preserved to meet a lacuna in procedure albeit said jurisdiction could be exercised to quash orders which were without jurisdiction, coram non judice and mala fide or where continuance of proceedings would amount to abuse of process of law or trial appearing futile exercise and wastage of time---No facts of two criminal cases were alike---Each case had to be dealt with according to its own peculiar facts and factors.

1977 SCMR 292;- PLD 1991 FSC 53; 2000 SCMR 122; Abdul Qadir Motiwala v. The State Criminal Miscellaneous Application No. 14 of 2000; Qurban Hussain v. Ch. Muhammad Ramzan and 4 others Criminal Miscellaneous Application. No. 114 of 1998; Syed Rizwan Ahmed v. The State Criminal Miscellaneous Application No.646 of 1994; PLD 1994 SC 281; PLD 1971 SC 677 and 1997 PCr. LJ 836 ref.

(b) Precedent-

---- No facts of, two criminal cases were alike and, thus, each case had to be dealt with on the basis of peculiar facts and factors.

M. Qadir Khan for Applicant.

Shoaib M. Ashraf, Special Prosecutor for the (A.N.F.) State.

Date of hearing: 30th March, 2000.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1905 #

2000 P Cr. L J 1905

[Karachi]

Before Sabihuddin Ahmed and Ghulam Rabbani, JJ

SHAUKAT HAYAT---Petitioner

versus

SUPERINTENDENT, CENTRAL PRISON, KARACHI---Respondent

Criminal Petition No. 1546 of 1998, decided on 1st May, 2000.

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

----S. 35---Penal Code (XLV of 1860), S.57---Sentence of life imprisonment---Concurrent or consecutive, question of ---Determination--Commutation of sentence of death into life imprisonment was an executive order and the same had to take effect forthwith---Sentence commuted to life imprisonment should run concurrently with other sentences awarded in the case.

Bashir and 3 others v. The State PLD 1991 SC 1145 rel.

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

----S 35---Constitution of Pakistan (1973), Art.199---Constitutional petition---Commutation of sentence of death into life imprisonment--Running of sentence consecutively---Accused was convicted under S.302, P.P.C. and also under S.11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Death sentence awarded under S.302, P.P.C. was converted to life imprisonment by Supreme Court---Authorities refused to make the life imprisonment ruts concurrently with the one awarded under Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Validity---Two sentences awarded to the accused would run concurrently.

PLD 1993 SC 14; 1994 SCMR 582 and Bashir and 3 others v. The State PLD 1991 SC 1145 rel.

Shaukat Hayat for Petitioner.

Shaikh Munir-ur-Rehman, Addl. A.-G., Sindh for the State.

Date of hearing: 2nd November, 1999.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1956 #

2000 P Cr. L J 1956

[Karachi]

Before Ghulam Nabi Soomro, J

ALI MUHAMMAD ---Applicant

versus

THE STATE---Respondent

Criminal Revision Application No.27 of 1998, decided on 10th April, 2000, (a) Criminal Procedure Code (V of 1898)---

----Ss. 439 & 514---Penal Code (XLV of 1860), S.302---Forfeiture of surety bond---Surety was a simple rustic villager---Accused absconded---Failure to produce the accused by the surety---Trial Court after issuing notice to the surety, forfeited the full amount of Rs.2,50,000---Validity---Responsibility of the surety could not be minimized under any circumstances---Plea of the surety that the accused might be dead, killed; left Pakistan or might be in jail custody or that the police failed to secure the custody of the accused, was misconceived and the same could not be considered in favour of the surety--Surety should have known the consequences of the absconding of the accused before offering himself as a surety---Where the surety was shown to be an uneducated, unsophisticated and a simple rustic villager, not knowing fully well the repercussions emanating from such failure on his part, amount of fine was reduced to Rs.2,00,000.

Muhammad Hussain and another v. The State PLD 1995 SC 348; Naseer Muhammad v. The State 1996 PCr.LJ 860; Momen Khan v. The State 1990 PCr.LJ 951; Sher Ali and another v. The State 2000 PCr.LJ 94; Dilshad Ahmed and others 2000 PCr.LJ 172 and Zeeshan Kazmi v. The State PLD 1997 SC 267 ref..

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

----S. 302---Administration of justice---Justice is not only to be done to the murderer or some one interested in him but justice is to be done to the deceased and the persons interested in him---Leniency could of course be shown to a party where it is due but not at the cost of justice required to be done in a case.

Syed Madad Ally Shah for Applicant.

Agha Khuda Bux, Addl. A.-G. for the State, Date of hearing: 10th April, 2000.

PCRLJ 2000 KARACHI HIGH COURT SINDH 1985 #

2000 P Cr. L J 1985

[Karachi]

Before Ghulam Nabi Soomro, J

AHMED KHAN ---Applicant

versus

THE STATE and another---Respondents

Criminal Revision Application No.77 of 1999, decided on 17th April, 2000.

(a) Criminal trial---

----Age---Determination of age of an accused---Principles---Ossification test, though a better guide to the age of a person than other tests, still the same cannot give an accurate estimate of age and there would be margin on either side of at least a year---No hard and fast rule can be laid down on the question relating to the mode of determination of the age of an accused.

(b) Sindh Children Act (XIV of 1955)---

----S. 5---Criminal Procedure Code (V of 1898), S.435---Age of accused, determination of---Birth Certificate showing age of accused to be less than 16 years---Trial of accused under S.5, Sindh Children Act, 1955---Contention by the complainant was that as per Medical Board the age of the accused was opined to be 17 years, therefore, the accused could not be termed as child--Validity---Age of the accused as per Birth Certificate issued by Municipal Corporation was below 16 years on the date of incident---Genuineness of the certificate had not at all been challenged---Even if the age of the accused given by the Municipal Corporation was placed out of consideration the opinion of the Medical Board still placed him within the purview of the word "child" as the accused would be entitled to have a margin of one year---No illegality or incorrectness in the decision of the Trial Court was found in circumstances.

Khadim Hussain Unar for Applicant.

Syed Madad Ally Shah for Respondent No. l

Mian Khan Malik, Addl. A.-G. for the State.

Date of hearing: 10th April, 2000.

PCRLJ 2000 KARACHI HIGH COURT SINDH 2051 #

2000 P Cr. L J 2051

[Karachi]

Before Mushir Alam, J

MUHAMMAD HASHIM---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 764 of 1999, decided on 1st June, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Sindh Children Act (XII of 1955), S.64---Bail, grant of---Age of accused---Accused, at the time of commission of offence was 14 years of age---Mere fact that accused was below 16 years of age would not ipso facto entitle him to the concession of bail either under S.64, Sindh Children Act, 1955, .or by virtue of first proviso to S.497(1), Cr:P.C.---Every case was to be examined on its own merits and the Court could not be swayed away by the plea of minority alone---Minority might be one of the considerations but not the only consideration---While exercising such discretion, it was the gravity of the offence and other attending circumstances that were to be kept in mind-Where overwhelming evidence had been collected by the prosecution that connected the applicant with commission of heinous crime, release of such person on bail would not only defeat the ends of justice but would have adverse impact on the society---Bail was declined in circumstances.

Muhammad Sharif v. Shafqat Hussain alias Shoukat and another 1999 SCMR 338 ref.

Shaikh Illahi Bux for Applicant.

Muhammad Iqbal Memon for the State,

PCRLJ 2000 KARACHI HIGH COURT SINDH 2053 #

2000 P Cr. L J 2053

[Karachi]

Before Ghulam Rabbani, J

GHULAM MUSTAFA alias SATHI and others---Appellants

versus

THE STATE---Respondent

Criminal Bail Application No.571 of 1999, decided on 2nd August, 2000. .

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

----S. 497---Bail, grant of ---Non-bailable offence---Discretion of Court--Scope---Grant or refusal of bail in non-bailable matters is a matter of discretion but such discretion is to be exercised in judicial manner assessing the prosecution evidence tentatively without giving any definite finding to avoid prejudicing case of either party.

PLD 1985 Kar. 27 and 1999 SCMR 1271 ref.

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

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant .of--Further inquiry---Ocular account not supported by medical evidence--Unexplained delay of 7 hours in lodging of F. I. R. ---Complainant attributed sharp-edged weapon injuries to the accused persons but no such injury was reflected in post-mortem report of the deceased---High Court having tentatively assessed the prosecution evidence in shape of deposition of Medical Officer, and the statements of the witnesses in F.I.R. lodged by the complainant, found the case of the accused persons one of further inquiry--Bail was allowed in circumstances.

1978 SCMR 285 and PLD 1995 SC 34 ref.

S. Mushtaque Hussain Shah for Applicants.

Sher Muhammad Shar, A.A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 2061 #

2000 P Cr. L J 2061

[Karachi]

Before Ghulam Rabbani, J

SHANKAR LAL---Applicant

versus

THE STATE,--Respondent

Criminal Miscellaneous Application No. l of 2000, decided on 2nd August, 2000.

Criminal Procedure Code (V of 1898)---

----Ss. 112, ' 110/55 & 561-A---Quashing of proceedings under S.112, Cr.P.C.---Report under S.110/55, Cr.P.C. was filed against the petitioner and the Magistrate initiated proceedings under S.112, Cr.P.C.---Where only general and vague allegations had been levelled against the petitioner; no identical criminal case had been cited to constitute habit of the petitioner in commission of such crimes; the witnesses cited against him were police officials and in three out of four cases cited against the petitioner, he had. been acquitted proceedings against the petitioner pending before the Magistrate were ordered to be quashed.

1984 PCr.LJ 1276; 1988 PCr.LJ 352; 1992 PCr.LJ 2219; 1993 PCr.LJ 2294; 1994 PCr.LJ 502 and 1994 MLD 869 ref.

Suresh Kumar Andani for Applicant.

Sher Muhammad Shar, A.A.-G. for the State.

PCRLJ 2000 KARACHI HIGH COURT SINDH 2075 #

2000 P Cr. L J 2075

[Lahore]

Before Mian Allah Nawaz and Bashir A. Mujahid, JJ

SHAUKAT-HUSSAIN---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.320/B of 1999, decided on 12th July, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Control of Narcotic Substances Ordinance (XIII of 1996), S.9(c)---Bail, grant of---Prosecution witnesses had not supported prosecution version--Recovery of alleged heroin from possession of accused had been made doubtful---Remaining witnesses had not strengthened case of prosecution--Accused was already in jail for more than two years and there was no likelihood that trial would be concluded in near future---Accused was ordered to be released on bail, in circumstances.

Sardar Riaz Ahmad Dahar for Petitioner.

Rafique Ahmad for the State. -

PCRLJ 2000 LAHORE HIGH COURT LAHORE 31 #

2000 P Cr. L J 31

[Lahore]

Before Bashir A. Mujahid, J

ABDUL HAMEED‑‑‑Petitioner

versus

MUHAMMAD TAMAR HAYAT GONDAL and another‑‑‑Respondents

Writ Petition No.2978 of 1997, heard on 19th May, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 382/452/148/149‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14‑‑‑Constitution of Pakistan (1973), Art. 199‑‑Constitutional petition‑‑‑Magistrate by means of impugned order had cancelled the case on police report allegedly in a mechanical manner without application of his independent judicial mind‑‑‑Validity‑‑‑Held, accused named in the F.I.R. who were necessary party having not been impleaded as party in the Constitutional petition, passing an effective order in their absence could adversely affect their interest as they were actual beneficiaries of the impugned order and valuable right had accrued in their favour‑‑‑Although the order of discharge being an administrative order was not amenable to appeal or revision, yet there was no bar for filing of private complaint on the same facts by the complainant even before the same Court, if it had jurisdiction to try the matter, which was to be decided in judicial proceedings‑‑‑Constitutional petition was disposed of accordingly.

Mst. Amtul Mobin alias Mst. Mobin Karim v. Magistrate Illaqa South Cantt., Lahore 1991 PCr.LJ 1075 ref.

Muhammad Sharif and 8 others v. The State 1997 SCMR 304; Arif Ali Khan and‑another v. The State and 6 others 1993 SCMR 187 and Bahadur and another v. The State and another PLD 1985 SC 62 rel. .

Q.M. Salim for Petitioner. Bashir Ahmad Chaudhry, A.A.‑G. for Respondents.

Date of hearing 19th May, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 33 #

2000 P Cr. L J 33

[Lahore]

Before Iftikhar Ahmed Cheema, J

ABDUL REHMAN‑‑‑Petitioner

versus.

ALI SHER and others‑‑‑Respondents

Criminal Miscellaneous Nos.863/C‑B and 898/C‑B of 1998/BWP, decided on 20th April, 1999.

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

‑‑‑‑S. 497‑‑‑Bail‑‑‑Delay in registration of F.I.R.‑‑‑Validity‑‑‑Where such delay was supported by evidence of a person who inspired confidence, delay per se was no ground for rejection of prosecution story.

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

‑‑‑‑S. 497‑‑‑Bail‑‑‑Opinion of Investigating Officer‑‑‑Worth‑‑‑Mere fact that accused was found innocent during investigation by the police could not be taken as a valid, legitimate and legal ground for admitting the accused to bail particularly when the complainant, the victim and their supporting witnesses had unambiguously stated against the accused‑‑‑Opinion of Investigating Officer/ Agency was not binding on the Court and ipse dixit of the police could not be taken as a gospel truth and was no ground for bail.

‑‑‑.‑S. 497‑‑‑Penal Code (XLV. of 1860), S.377‑‑‑Bail‑‑‑Opinion .of Chemical' Examiner‑‑‑Where after the occurrence and before the medical examination the victim had passed stool, the negative report of the Chemical Examiner was not fatal for the prosecution case‑‑‑Opinion of the Chemical Examiner was not a sine qua non for the success of such cases.

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

‑‑‑‑S. 497(5)‑‑‑Offence ‑of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12‑‑‑Penal Code (XLV of 1860), S.377‑‑‑Bail, cancellation of‑‑‑No evidence of enmity between the parties was available which might have actuated the complainant to falsely implicate the accused persons‑‑‑No rhyme or reason was shown as to why the complainant and victim should trump up a false case against the accused person‑‑‑Specific role was attributed to the accused persons and the offence was punishable with 25 years of imprisonment‑‑Order of the Trial Court granting bail was patently illegal and perverse which was set aside by High Court.

Malik Muhammad Aslam for Petitioner. Malik Manzoor Ahmad Missan for Respondents Nos. l and 2. M.A. Farani for the State.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 40 #

2000 P Cr. L J 40

[Lahore]

Before Asif Saeed Khan Khosa, J

Mst. SAADIA ANJUM.‑‑Petitioner

versus

ALI ASGHAR and others‑‑‑Respondents

Habeas Petition No.91/H of 1999, decided on 17th February, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 491‑‑‑Habeas corpus petition‑‑‑Custody of minor children who were in the custody of father‑‑‑Mother failed to establish in the Court that she was actually divorced by the father of minor children and she had remarried with some other person‑‑‑Person statedly to be present husband of the mother of minors had murdered a paternal uncle of the minor detenus‑‑‑Appropriate course for the mother was to approach the Guardian Judge for the custody of the minors as \the Guardian Judge would be in a better position to attend to all the factual details of the case, so as to arrive at a conclusion about the welfare of the minors and their custody‑‑‑High Court declined to interfere with the custody of the minors in circumstances.

Ahmad Sami v. Saadia Ahmad 1996 SCMR 268 and Mst. Shehnaz Khawaja v. Riaz Nasir Khawaja 1996 MLD 24 ref.

Tariq Zulfiqar Ahmed Choudhri for Petitioner. Ch. Khalil Asghar Sindhu for Respondents Nos. l and 2.

Date of hearing: 17th February, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 43 #

2000 P Cr. LJ 43

[Lahore]

Before Bashir A. Mujahid, J

MUHAMMAD DILDAR HUSSAIN and another‑‑‑Petitioners

versus

THE CIVIL JUDGE/JUDICIAL MAGISTRATE, SHUJABAD and 3 others‑‑‑Respondents

Writ Petition No.8754 of 1999, heard on 30th September, 1999.

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

‑‑‑‑S. 156‑‑‑Investigation into cognizable cases‑‑‑Police under S.156, Cr.P.C. has a statutory right to investigate the circumstances of an alleged cognizable crime without requiring any permission from the Judicial Authorities and such statutory right cannot be interfered with by Judiciary.

Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Criminal Procedure Code (V of 1898), Ss. 167, 169, 170 & 173‑‑Constitution of. Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Discharge of accused by Magistrate‑‑‑Validity‑‑‑Police had asked for the physical remand of the accused for recovery of some material for completion of investigation‑‑Magistrate under S.167, Cr.P.C. had only two options, either to grant the remand or to decline the same for reasons to be recorded and send the accused to judicial lock‑up‑‑‑Magistrate had no authority or jurisdiction to take cognizance and discharge the accused as S.302, P.P.C. was exclusively triable by Sessions Court and he had to send the case for trial to Sessions Judge in case of submission of final report under Ss. 169, 170 & 173, Cr.P.C.‑‑‑Magistrate while discharging the accused had not only travelled beyond his jurisdiction but had also usurped the authority of the Investigating Agency‑‑‑Impugned order passed by Magistrate was consequently, declared to be illegal and without jurisdiction and was set aside with the direction to the Investigating Officer to continue with the investigation of the case associating the accused with the same‑‑‑Magistrate was also directed to pass an appropriate order on the report if submitted by the Investigating Officer in accordance with law, Constitutional petition was accepted accordingly.

PLJ 1996 Lah. 680; Aftab Ahmad v. Hassan Rashid and 10 others PLD 1987 SC 13 and Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281 ref.

Ch. M. Latif Khokhar for Petitioners. Khadim Nadeem Malik, Addl. A.‑G. for Respondents Nos. l to 3. Sardar Mehboob for Respondent No.4.

Date of hearing: 30th September, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 47 #

2000 P Cr. L J 47

[Lahore]

Before Mian Allah Nawaz and Iftikhar Ahmad Cheema, JJ

MUHAMMAD TARIQ and others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.147 and Murder Reference No.23 of 1996, decided on 1st October, 1998.

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

----S. 302/324/34---Motive---Dispute over---Possession of "Ihatas"---Such dispute in rural areas have led to many a tragic and unhappy episodes.

PLD 1976 SC 51 rel.

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

----S. 302/324/34---Motive---Weakness of motive or its complete absence--Effect---Where prosecution was able to prove its case through ocular evidence of unimpeachable character, weakness or complete absence of motive was wholly immaterial.

PLD 1975 SC 160 rel.

----S. 302/324/34---Interested witness---Test---Relationship of a witness by itself was not a valid ground for discrediting or rejecting sworn testimony---Not an invariable rule that interested evidence could never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence---Interested witness was not necessarily unreliable evidence.

Abdul Rashid v. Umid Ali and 2 others PLD 1975 SC 227; Jahan Khan v. State PLD 1959 SC 488; Niaz v. State PLD 1960 SC 387; Nazir and others v. State PLD 1962 SC 269; Muhammad Ismail v. Khushi Muhammad and 7 others PLD 1974 SC 37 and Muhammad Ahmad and others v. State 1997-SCMR 101 rel.

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

----S. 302/324/34---Interested witness---Assessing interested testimony-Principles ---Guidelines for assessing interested testimony stated.

All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of a particular case, to base conviction thereon. Although in the matter of appreciation of evidence, no hard and fast rule can be laid down, yet in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful as. a firsi step to focus attention on the question whether the presence of the witness at the scene of the crime at the material time was probable. If so, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If the, answer to these questions be in the affirmative, and the evidence of the witness appears to the Court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source. Since perfection in this imperfect world is seldom to be found, and the evidence of a witness, moreso of an interested witness, is generally fringed with embellishment and exaggerations, however, true in the main, the Court may look for some assurance, the nature and extent of which will vary according to the circumstances of a particular case, from independent evidence, circumstantial or direct, before finding the accused guilty on the basis of his interested testimony. These are only broad guidelines which may often be useful in assessing interested testimony, and are not iron cased rules uniformly applicable in all situations.

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

----S. 302/324/34---Appreciation of evidence---Prosecution witnesses were close relatives and there were minor inconsistencies and discrepancies in the case of the prosecution---Effect---Statements of the prosecution witnesses were consistent and convincing and the same inspired confidence---Oral testimony of the prosecution witnesses received corroboration from recovery of weapon of offence---Prosecution witnesses were witnesses of truth and the occurrence had taken place in the manner as alleged by such witnesses---No material discrepancy was pointed out which might render the prosecution story doubtful or which might tend to discredit the testimony of the prosecution witness---Prosecution had proved its case and the sentence of death under S.302(b), P.P.C. and sentence of imprisonment of 10 years under S.324, P.P.C. awarded by the trial Court to the accused was upheld by the High Court.

(f) Medical jurisprudence---

---Fire-arm injury---Simple burning without charring or blackening around the injury---Such injury could not be said to have caused from a close range.

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

----S. 302/324/34---Appreciation of evidence---Discrepancies and inconsistencies in prosecution evidence---Effect---No criminal case was free from such inconsistencies and discrepancies, main thing which was to be seen was whether the same went to the root of the matter or pertained to insignificant aspect thereof---Defence in the case going to the root of the matter be justified in seeking advantage of incongruities in the evidence---No such benefit, however, was available in a case which pertained to insignificant aspect of the case and it was the salutary method of appreciation of evidence in criminal cases.

(h) Criminal jurisprudence---

---- Substitution of accused in criminal case---Substitution is a rare phenomenon and one who alleges substitution must lay foundation for the same.

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

----S. 302/324/34---Appreciation of evidence---Vicarious liability---No active role was attributed to the accused persons---Death was caused by tire-arm which was attributed to another co-accused---Accused persons were alleged to be armed with "Lathis (sticks) "---Recovery of such "Lathis (sticks)" was doubtful as the recovered "Lathis (sticks)" were of common use and were easily available in almost every house of a Zamindar (farmer) furthermore such "Lathis (sticks)" were not stained with blood---Prosecution case to the extent of the accused persons was doubtful---Accused persons could not be held vicariously liable for the acts of other co-accused---Conviction and sentence awarded to the accused persons, by the Trial Court were set aside and benefit of doubt was given to them---Accused persons were acquitted in circumstances.

Ikram-ud-Din for Appellants.

Abdul Sattar Zafar for the Complainant.

Tariq Saeed for the State.

Date of hearing: 1st October, 1998.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 62 #

2000 P Cr. L J 62

[Lahore]

Before Iftikhar Hussain Chaudhry and Zafar Pasha Chaudhry, JJ

HAFIZ MUHAMMAD AHMED ---Petitioner

versus

GHULAM NABI and another---Respondents

Writ Petition No. 17271 of 1999, decided on 12th October, 1999.

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

----S. 540---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Summoning of witness for examination---Police Officer in the first instance had the position of a witness, but subsequently, he was arrayed as an accused in the case---Said Police Officer, during investigation, was found to be not guilty and was discharged and having been placed in Column No.2 of the report under 5.173, Cr.P.C., had not been challaned by the prosecution---Police Officer figured prominently in the F.I.R. and he could state about the material facts which might be helpful to decide the fact in issue and his evidence, therefore, appeared to be necessary for just decision of the case---Trial Court, in: circumstances, was justified and under obligation to examine the said Police Officer as a witness in the case and to prevent it from doing so could amount to injustice---Impugned order passed by Trial Court being legal, just and proper did not call for any interference---Trial Court, however, was directed to keep in mind while evaluating the evidence of the Police Officer that he had been an accused person----constitutional petition was disposed of accordingly.

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

----S. 540---Power of Court to summon and examine material witness---" Any person"---Connotation---No qualification or embargo having been placed on the phrase "any person" used in S.540, Cr.P.C. if such person fulfils the requirement of being helpful for just decision of the case, he can be examined as a Court-witness.

Kh. Muhammad Afzal for Petitioner. Muhammad Iqbal Bhatti for the Complainant. Nizam-ud-Din Arif for the State.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 67 #

2000 P Cr. L J 67

[Lahore]

Before Mumtaz Ali Mirza, J

MUHAMMAD MASOOD‑‑‑Petitioner

versus

S.S.P., RAILWAYS, RAWALPINDI and others‑‑‑Respondents

Writ Petition No.928 of 1999, decided on 20th April, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 154‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑Registration of criminal case against police officials‑‑‑Registration of criminal case against police officials was ultimately going to be an exercise in futility‑‑Complainant in his best interest could be directed to file a private complaint in a, Court of competent jurisdiction to seek justice for himself rather than running after the police and begging for justice from them‑‑‑Even after registration of the criminal case against the police officials under orders of High Court, investigation could not be controlled and regulated by High Court‑‑‑Most efficacious remedy for the complainant, therefore, was to file' a private complaint rather than directing registration of a criminal case against the police officials through the police itself and the complainant was directed accordingly‑‑‑Constitutional petition was disposed of with the said observations.

Mst. Bashiran Bibi v. S.H.O.; Police Station Shorkot and another PLD 1978 Lah. 1323 ref.

Malik Rab Nawaz Noon for Petitioner.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 73 #

2000 P Cr. L J 73

[Lahore]

Before Mian Muhammad Najum‑uz‑Zaman and Asif Saeed Khan Khosa, JJ

MUHAMMAD IQBAL‑‑‑Appellant

versus

THE STATE‑‑‑Respondent, Criminal Appeals Nos. 194, 230, Criminal Revision No. 103 of 1996 and Murder Reference No.222, decided on 12th January, 1999.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 324‑‑‑Appreciation of evidence ‑‑‑F.I.R. had been promptly lodged with all the necessary details‑‑‑Eye‑witnesses who were natural witnesses of the occurrence and had no ill‑will or animosity against the accused for his false implication in the broad daylight occurrence, had made consistent statements which inspired confidence‑‑‑Ocular testimony was corroborated by medical evidence and the recovery of pistol from the accused with which the crime empties had matched‑‑‑Occurrence had developed at the spur of the moment without any premeditation on the post of accused over a petty quarrel‑‑Second shot by the accused at the deceased had proved fatal‑‑‑Conviction of accused under S.302(b), P.P.C. was upheld but his sentence of death was commuted to imprisonment for life in circumstances‑‑‑Accused had never fired at the child and he had no intention to kill or injure him‑‑‑Bullet fired at the deceased by the accused had crossed his thigh and had gone on to injure the ankle of the said child present near the deceased which was purely an accident and could not entail penal consequences‑=‑Accused was consequently acquitted of the charge under 5.324, P.P.C.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 324‑‑‑Criminal Procedure Code (V of 1898), S.417(2‑A)‑‑‑' Appeal against acquittal‑‑‑Accused who was not involved in the occurrence had allegedly given a pistol to co‑accused at the spot for the purpose of firing at the deceased‑‑‑Accused had no motive against the deceased or the injured child, nor he had used the pistol himself for causing any injury to anybody‑‑‑Pistol with which the crime empties were found wedded was recovered from co‑accused and was his licensed pistol‑‑‑No explanation was available on the record as to how the licensed pistol of co‑accused was in possession of accused just before the occurrence‑‑‑Appeal against acquittal of accused was dismissed in circumstances.

Sahibzada Farooq Ali for Appellant. Sheikh Muhammad Rahim for the State. Abdul Aziz Khan Niazi for the Complainant

Date of hearing: 12th January, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 80 #

2000 P Cr. L J 80

[Lahore]

Before Muhammad Naseem Chaudhri, J

ALLAH DIN‑ Petitioner

versus

ALLAH RAKHA and another‑‑‑Respondents

Criminal Miscellaneous No.5789/CB of 1998, heard on 28th January, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Cancellation of bail‑‑"Lalkara" attributed to accused was not a proverbial one‑‑‑Accused having the direct cause of annoyance and direct motive against the complainant was in a commanding position to issue the commanding "Lalkara" to his son (co-accused)‑‑‑Complainant having not participated in the proceedings of the "Punchayat", opinion of the Investigating Officer in favour of accused was liable to be ignored having been based on conjectural hypothesis which could not be approved by giving weight at bail stage‑‑‑Evidence of motive, ocular account and medical evidence collected by prosecution had, prima facie, connected the accused with the occurrence‑‑‑Bail allowed to accused by Sessions Court was cancelled in circumstances.

Masood Arshad for Petitioner.

Respondent No. l in person.

Muhammad Naeem for the State.

Date of hearing: 28th January, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 82 #

2000 P Cr. L J 82

[Lahore]

Before Muhammad Naseem Chaudhri, J

SARWAR---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.290/B of 1999, heard on 29th January, 1999.

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

----S. 497---Penal Code (XLV of 1860), S.380/411---Bail, grant of---Case against accused did not fall within the prohibitory clause of S.497(1), Cr.P.C.--No case of cattle lifting had been registered or pending against the accused---No circumstance of extraordinary nature disentitling the accused for concession of bail was brought to the notice of Court---Accused had been denied bail by the Courts below without any legal and factual justification by the orders which were devoid of judicial propriety---Bail was allowed to accused accordingly.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.

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

----S. 497---Bail---Refusal of bail in cases not falling within the prohibitory clause of S.497(1), Cr.P.C.---Bail will be declined only in extraordinary cases which do not fall within the prohibitory clause in which there is likelihood of abscondence of accused; or there is apprehension of the _a6used tampering with the prosecution evidence, or there is danger of the offence being repeated if the accused is released on bail and/or where the accused is a , previous convict.

Tariq Bashir and 5 others v. The State PLD 1995 5C 34 ref.

----S. 497---Bail---Procedure---Bail application has to be disposed of within the framework of 5.497, Cr.P.C. without ignoring the provisions of 5.497(1), Cr.P.C. according to which an accused of an offence not falling within the prohibitory clause to 5.497, Cr.P.C. is entitled to the discretion of the Court for the purpose of his admission to bail.

Makhsood Hussain Malik for Petitioner. Malik Amin Ullah for the State.

Date of hearing: 29th January, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 85 #

2000 P Cr. L J 85

[Lahore]

Before Sheikh Abdur Razzaq and Zafar Pasha Chaudhry, JJ

MUHAMMAD ASHIQ and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1089 of 1992 and Murder Reference No.23 of 1993. decided on 14th January, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Presence of eye‑witnesses at the place of occurrence at the relevant time was quite natural and absolutely probable‑‑Incident had been reported at the police station without any loss of time ‑‑‑Eyewitnesses being close relations of the accused, there was no possibility of exonerating the real culprits and to falsely implicate their own close relations‑‑Ocular testimony was fully supported by medical evidence and the same could not be doubted‑‑‑Conviction of accused was upheld in circumstances‑‑‑Accused had committed the murder of his father and brother and he did not deserve any leniency‑‑‑ Sentence of death awarded to accused on two counts by Trial Court was, therefore, confirmed ‑‑‑Co‑accused, however, being a young boy must have acted under the influence of his father and none of the fatal blows was attributed to him‑‑‑Death sentence awarded to co‑accused on two counts was reduced to imprisonment for life in circumstances.

Noor Muhammad v. The State 1988 SCMR 1640, ref.

Sardar Nazar Hussain Dogar for Appellants.

S.D. Qureshi for the State.

Date of hearing: 14th January, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 94 #

2000 P Cr: L J 94

[Lahore]

Before Dr. Munir Ahmad Mughal, J

SHER ALI and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Revision No. 81 of 1999, heard on 4th March, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 514‑‑‑Penal Code (XLV. of 1860), S.302‑‑‑Forfeiture of bond‑‑‑Sessions Court, after issuing show‑cause notice to the petitioners (sureties), receiving their reply and hearing arguments from both the sides had forfeited their bonds which order. to such extent did not suffer from any illegality‑‑‑Petitioners who had tried their level best and had fully assisted in the search of accused and had also no personal benefit, deserved leniency‑‑‑Penalty of Rs.25,000 was reduced to Rs.5,000 in circumstances.

Sardar Khan v. Crown PLD 1952 Lah. 645; Dildar and another v. The State PLD 1963 SC 47 and Zeeshan Kazmi v. The State PLD 1997 SC 406 ref.

Abdul Sami Khawaja for Petitioners.

Mian Abdul Qayyum Anjum and Ameer Muhammad Joyia for Respondents.

Date of hearing: 4th March, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 97 #

2000 P Cr. L 1 97

[Lahore].

Before Muhammad Naseem Chaudhri, J

WAQAR-UL-MOHSIN---Petitioner

versus

SUPERINTENDENT OF POLICE, CITY, LAHORE and others---Respondents

Writ Petition No. 19882 of 1998, decided on 9th February, 1999.

Penal Code (XLV of 1860)--

----S. 365/353/506/148/149---West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S.16---Constitution of Pakistan (1973), Arts. 199, 4 & 25---Constitutional petition---Deletion of some offences from the F.1.R.--Police was performing its duties about the maintenance of law and order situation at a Ladies Examination Centre where accused alongwith his co-accused allegedly entered, snatched the answer books from the examinees and forcibly abducted a Police Officer on duty, removed him to a nearby hostel where he was confined in a room---Accused and his companions were also alleged to have raised slogans against the Government and the Executive Authorities---Examination Hall and the Hostel where the Police Officer was removed were admittedly in the same premises with a short distance between the two places---Whereabouts of the said Police Officer were also not concealed which was the necessary ingredient to constitute the offence under S.365, P.P.C.---Abduction/removal of the Police Officer being not with the intent to secretly confine him S.365, P.P.C., prima facie, was not applicable---Accused had made no speech which could cause fear or alarm to the public and had shown no activity prejudicial to public safety or to the maintenance of public order---Section 16 of the West Pakistan Maintenance of Public Order Ordinance, 1960 was, therefore, also not attracted in the case---Such non-bailable offences were. added in the F.LR. to aggravate the situation and to put pressure on the accused as well as his co-accused as the complainant was a Police Officer---All citizens were equal before law and were entitled to equal protection of law under Arts. 4 & 25 of the Constitution and the complainant Police Officer was not entitled to be afforded preferential treatment---Accused and' his co-accused were also entitled to equitable treatment provided by law---Police having exceeded its authority and acted illegally by incorporating S.365, P.P.C. and S.16 of the West Pakistan Maintenance of Public Order Ordinance, 1960, the same were deleted from the F.I.R. as well as from the report submitted by the police under S.173, Cr.P.C.---Section 365, P.P.C. was, however, directed to be substituted by S.342, Cr.P.C.---Constitutional petition was accepted accordingly.

Akbar Ali and others v. King-Emperor AIR 1925 Lah. 614(1) and Ali Nawaz alias Alia and 5 others v. The State 1988 SCMR 601 ref. '

Taqi Ahmad Khan and Atta-ul-Mohsin Lak for Petitioner

Syed Zulfiqar Ali Bokhari, Asstt. A.-G. for Respondents

Date of hearing; 9th February, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 103 #

2000 P Cr. L J 103

[Lahore]

Before Raja Muhammad Khurshid and Sheikh Abdur Razzaq, JJ

KARAMAT ALI ALIAS FAUJI‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6084/B of 1998, decided on 25th February, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), S.302/324/34‑‑‑Bail, grant of‑‑Accused was not initially named in the F.I.R., but was substituted for another accused named in the F.I.R. who had, been assigned the role of "Lalkara"‑‑‑Injury alleged to have been received by the accused on his lip during the occurrence could not be brought on record to show his participation in the incident‑‑‑Nothing was attributed to accused except the proverbial "Lalkara" according to his substituted role‑‑‑Case against accused, in circumstances, needed further inquiry and he was allowed bail accordingly.

Rai Bashir Ahmad for Petitioner. Kh. Muhammad Iqbal Butt for the State.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 108 #

2000 P Cr. L J 108

[Lahore]

Before Sheikh Abdur Razzaq, J

ZUBAIR KHAN and 2 others‑‑‑Appellants

versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No.235 of 1994, heard on 17th February, 1999.

Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 379‑‑‑Appreciation of evidence‑‑‑Out of four eye‑witnesses only one had been examined by the prosecution who was the real son of the complainant‑‑Contentions raised by the complainant in his complaint were in direct conflict with his stand taken by him in his previous application as well as his subsequent statement and as such he had been taking different stands at different times‑‑Complainant had, thus failed to prove his case against accused beyond doubt‑‑Accused were acquitted accordingly.

Inayat Ullah Khan Niazi for Appellants.

Maqsood Ahmad Khan for the State.

Date of hearing: 17th February, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 110 #

2000 P Cr. L J 110

[Lahore]

Before Muhammad Naseem Chaudhri, J

SAJJAD‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1870/B of 1999, heard on 7th April, 1999

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 18.60), S.380/400/395‑‑‑High Court (Lahore) Rules and Orders, Vo1.II1, Chap.X, R.14, Note 2‑‑‑Pre‑arrest bail‑‑‑Accused after having obtained the interim relief from Sessions Court did not appear in the Court, in consequence whereof his application for the pre‑arrest bail was dismissed‑‑‑Bail application according to Note 2, R.14, Chap.X of the High Court (Lahore) Rules and Orders, Vo1.III, had to be first moved before and disposed of on merits by Sessions Court‑‑‑High Court, therefore, did not dispose of the bail application of accused on merits and directed him to move the Sessions Court for bail before arrest within a specified period, during which he was not to be arrested‑‑‑Petition for pre‑arrest bail was disposed of accordingly.

Ch. Muhammad Alamgir Kahloon for Petitioner

Date of hearing: 7th April, 1999

PCRLJ 2000 LAHORE HIGH COURT LAHORE 112 #

2000 P Cr. L J 112

[Lahore]

Before Raja Muhammad Khurshid, J

MUHAMMAD NASIR IQBAL‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos. l and 1008/B of 1999, decided on 23rd February, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), S.452/337‑H(ii)/337‑L(ii)/34‑‑‑Prearrest bail‑‑‑Accused was named in the F.1.R. wherein a specific role and a clear motive for the commission of the offence were attributed to him‑‑‑Proceedings against the accused were not shown by the record to be the result of mala fides on the part of the police or the complainant‑‑‑Accused had escaped from the Sessions Court on announcement of order dismissing his application for bail before arrest‑‑‑Investigation in such‑like cases should be allowed to take its usual course‑‑‑Petition for pre‑arrest bail filed by accused was dismissed in limine by High Court in circumstances.

Abdul Hameed Rana for Petitioner.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 114 #

2000 P Cr. L J 114

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD HUSSAIN ‑‑‑Petitioner

versus

THE STATE and 5 others‑‑‑Respondents

Writ Petition No.26627 of 1998, decided on 19th February, 1999.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑-Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Where a party has resorted to any other efficacious remedy, High Court will be reluctant to exercise its Constitutional jurisdiction.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/324/34‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Complainant had filed a direct complaint against the accused persons who had been discharged by the Magistrate by means of the impugned order‑‑Complainant having resorted to efficacious remedy‑‑‑Constitutional petition filed by him had become infructuous and the same was dismissed as such.

Mansha‑.and 7 others v. Illaqa Magistrate, Police Station Bahlak, District Faisalabad and 4 others PLD 1997 SC 339; Rehmat Ali v. Nazir Hussain 1997 MLD 1135; Sajjad Hussain v. S.H.O., Police Station Pindigheb and 4 others 1998 PCr.LJ 1804; Niamat Ali v. The State and others 1998 PCr.LJ 1530; Muhammad Sharif and 8 others v. The State and another 1997 SCMR 304 and Bahadur and another v. The State and another PLD 1985 SC 62 ref.

Shaukat Rafique Bajwa for Petitioner.

Ch. Abdul Ghafoor for Respondents Nos.4 to 6.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 122 #

2000 P Cr. L J 122

[Lahore]

Before Zafar Pasha Chaudhry, J

QUDRAT ULLAH‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 54 of 1999, heard on 11th October, 1999.

Emigration Ordinance (XVIII of 1979)‑‑‑

‑‑‑‑Ss. 18 .& 24(6)‑‑‑Passports Act (XX of 1974), S.6‑‑‑Appreciation of evidence‑‑‑Omission in obtaining prior sanction of Government to conduct trial‑‑‑Effect‑‑‑Accused was convicted and sentenced by Trial Court on allegations that he had been preparing and issuing forged and false visas and by forging passports had facilitated unauthorised persons to immigrate to other countries‑‑‑Trial Court had conducted trial against accused without obtaining prior sanction from Federal Government as envisaged by S.24(6), Emigration Ordinance, 1979‑‑‑Mandatory provision of law having been violated, trial against accused would stand vitiated.

Jaswant Singh v. The State of Punjab PLD 1958 SC (Ind.) 328; Rashid Ahmad v. The State PLD 1972 SC 271 and Ronamall v. State 1985 PCr.LJ 1126 ref.

Ch. Manzoor Hussain Basra for Appellant. Shahid Saeed Standing Counsel on behalf of Federal Government.

Date of hearing: 11th October, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 138 #

2000 P Cr. L J 138

[Lahore]

Before Ch. Ijaz Ahmad, J

Mst. SALIMA BIBI and others---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No.3813/B of 1988, decided on 23rd July, 1998

Criminal Procedure Code (V of 1898)---

----S. 498---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11,7---Bail before arrest---Accused was granted ad ihterim bail by Trial Court and same was dismissed for non-prosecution---Validity---Duty of Trial Court to decide the application on merits even in the absence of the accused---Order of Trial Court was not in accordance with settled law: as such the same was set aside---Bail application of accused would be deemed to be pending before Trial Court.

1981 PCr.LJ 61 fol.

Hasnat Ahmad Khan for Petitioners. Syed Zulfiqar Ali Bokhari, Asstt. A.-G. for the State.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 139 #

2000 P Cr. L J 139

[Lahore]

Before Zafar Pasha Chaudhry and Iftikhar Hussain Chaudhry, JJ

SHERA‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.300 and Murder Reference No. 156 of 1994, decided on 16th September, 1999.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 299(a)‑‑‑‑Adult‑‑‑Age of accused‑‑‑Where accused was 16 years of age, he was not an adult within the meaning of S.299(a), P.P.C.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 306 & 308‑‑‑Appreciation of evidence‑‑‑Age of accused‑‑‑Accused was 16 years of age at the time of occurrence but he was mature enough to realise the consequences of his act of murder‑‑‑Effect‑‑‑Sentence of death awarded to the accused under S.302, P.P.C. by Trial Court was illegal and not maintainable‑‑‑Such sentence awarded by Trial Court were set aside and accused was convicted under S.308, P.P.C.‑‑‑Where the minor accused could realize the consequences of his act, he was liable to be punished with imprisonment also‑‑Accused was awarded sentence of payment of Diyat and was also sentenced to a period of imprisonment already undergone by the accused‑‑‑Sentence and ,conviction were altered accordingly.

‑‑‑‑Ss. 302,‑ 306 & 308‑‑‑Vindication of family honour could be treated as an extenuating and mitigating circumstance in favour of offender.

Aftab Farrukh for Appellant.

Raas Tariq Chaudhry for the Complainant.

Masood Sadiq Qureshi for the State..

Date of hearing: 16th September, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 147 #

2000 P Cr. L J 147

[Lahore]

Before Tassaduq Hussain Jilani and Raja Muhammad Khurshid, JJ

MUHAMMAD PERVAIZ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.698 and Murder Reference No.287 of 1993, decided on 17th March, 1999.

Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss. 302(a) & 302(c)‑‑‑Appreciation of evidence‑‑‑Presence of eye‑witnesses at the place of occurrence at the relevant time was highly doubtful‑‑‑Accused from the very beginning had taken up the plea of having killed the deceased under grave and sudden provocation in order to save the honour of his sister‑‑Motive and recovery of weapon of offence in the case had been disbelieved‑‑‑Defence plea taken by accused in the given circumstances rang true and his statement was to be believed in totality‑‑‑Conviction of accused under S.302(a), P.P.C. was consequently altered to S.302(c), P.P.C. and his sentence of death was reduced to ten years' R.I. in circumstances.

The State v. Muhammad Hanif and 5 others 1992 SCMR 2047; Ali Muhammad v. Ali Muhammad and another PLD 1996 SC 274 and Barkat Ali v. State 1998 PCr. LJ 1418 ref.

Rana Muhammad Arshad Khan for Appellant.

Sh. Manawar Hussain for A.A.‑G. for the State.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 154 #

2000 P Cr. L J 154

[Lahore]

Before Khalil-ur-Rehman Ramday and Asif Saeed Khan Khosa, JJ

ALLAH RAKHA---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 1098 and Murder Reference No.472 of 1992, heard on 27th July, 1999.

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

----S. 302---Appreciation of evidence---Daylight occurrence ---F.I.R. was recorded with sufficient promptitude---Accused was mentioned in the F.I.R. and was the sole perpetrator of the offence---Deceased was sister-in-law (wife of brother) of accused---Complainant was the father of the deceased as well as maternal-uncle of the accused---Complainant was an eye-witness of the occurrence and due to close and sensitive relationship with the accused, he was not likely to implicate the accused falsely in case involving the murder of his own daughter---Presence of complainant at the house of deceased was not unnatural or unusual---Sentence of death awarded by Trial Court under S.302(b), P.P.C. was maintained.

(b) Penal Code (XLV of 1860)--, ---S. 302---Case involving a capital charge cannot be decided on mere re otherwise devoid of any proof or substance.

Amjad Pervaiz Malik for Appellant.

A.H. Masood for the State.

Muhammad Ashraf for the Complainant.

Date of hearing: 27th July, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 165 #

2000 P Cr. L J 165

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

NASIR---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1959/B of 1998, decided on 10th November, 1998.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Accused had not caused any injury to the deceased and he was only attributed the role of ineffective firing---Question of vicarious liability of accused in the murder was yet to be determined---Weapon allegedly recovered from accused was the licensed fire-arm of his father--=Case of accused in circumstances, required further inquiry as contemplated under S.497(2), Cr.P.C.---Accused was admitted to bail accordingly.

Malik Muhammad Shabbir Langrial for Petitioner.

Arshad Ali Chuhan for the Complainant.

Qamarul Hassan Thaheem for the State.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 172 #

2000 P Cr. L J 172

[Lahore]

Before Ali Nawaz Chowhan, J

DILSHAD AHMAD and others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Revision No.401 of 1999, decided on 27th August, 1999.

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

‑‑‑‑S. 514‑‑‑Forfeiture of surety bond‑‑‑Duty of Court‑‑‑In dealing with cases of sureties who may be in. default, a judicial mind is supposed to maintain a balance between undue leniency which may lead to abuse of procedure and interference with course of justice.

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

---‑S. 514‑‑‑Forfeiture of surety bond‑‑‑Matters to be considered stated Undue severity may lead to unwillingness on the part of neighbours and friends to come forward and give bail for persons under accusation. While maintaining the balance, the Courts are not supposed to act in a mechanical way. They are required to hold some sort of balance while determining to what extent a bond is to be forfeited, Some matters to be considered are: whether the sureties have any direct interest through financial or blood connection with the accused; whether they have connived with or procured the absence of the accused, and finally whether they have endeavoured sufficiently to secure the attendance of the accused.

‑‑‑‑S. 514‑‑‑Forfeiture of surety bond‑‑‑Accused persons absconded during trial‑‑‑Trial Court ordered for forfeiture of whole amount of surety bonds‑‑Validity‑‑‑Trial Court made no investigation for arriving at a just conclusion with respect to a just quantum for the purpose of forfeiture: ‑‑Such order did not appear to be a judicial order and the same was set aside‑‑‑Case was remanded to the Trial Court for decision afresh.

Sardar Khan and others v. The State 1968 PCr.LJ 447; Ghulam Haider v. Karim Bakhsh PLD 1963 SC 47; Muhammad Khan v. The State 1986 PCr.LJ 2028 and Bahadur Khan v. The State 1976 PCr.LJ 1283 ref.

Hamayon Mujahid Bhatti for Petitioners

PCRLJ 2000 LAHORE HIGH COURT LAHORE 175 #

2000 P Cr. L J 175

[Lahore]

Before Sh. Abdur Razzaq, J

NAZIR and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.870, Criminal Revision No.750 of 1992 and Criminal Revision No.458 of 1994, decided on 4th March, 1999.

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

----S. 302/34---Appreciation of evidence---Grave and sudden provocation--Defence plea with regard to the occurrence was more plausible and the same was candidly admitted by the Investigating Officer---Prosecution version was not supported by any independent evidence whereas that of the defence appealed to the conscience of a man of ordinary prudence---Effect---Where the deceased was not done to death as alleged by the prosecution in F.I.R., but was killed by the accused/appellants under the impulse of grave and sudden provocation the conviction and sentence under S.302(b)/34, P.P.C. was altered to that under S.302(c), P.P.C.---Sentence of imprisonment for life was reduced to one which the accused had already undergone.

Muhammad Ayub v. The State 1997 PCr.LJ 2056; Ali Muhammad v. Ali Muhammad and others PLD 1996 SC 274; Saeed Ahmad v. The State 1995 PCr.LJ 1016 and Muhammad Ishaque alias Baig v. The State 1998 PCr.LJ 1110 rel.

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

----S. 302/34---Grave and sudden provocation---In case involving element of "Ghairat" there is a tendency to justify imposition of lesser penalty.

Muhammad Ayub v. The State 1997 PCr.LJ 2056; Ali Muhammad v. Ali Muhammad and others PLD 1996 SC 274; Saeed Ahmad v. The State 1999 PCr.LJ 1016 and Muhammad Ishaque alias Baig v. The State 1998 PCr.LJ 1110 rel.

Sardar Nazar Hussain Dogar for Appellants.

Mian Muhammad Sikandar Hayat and Muhammad Yaqoob Chatha for the Complainant.

A.H. Masood for the State.

Date of hearing: 4th March, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 184 #

2000 P Cr. L J 184

[Lahore]

Before Kh. Muhammad Sharif, J

MUHAMMAD FAREED‑‑‑Petitioner

versus

STATION HOUSE OFFICER‑‑‑Respondent

Criminal Miscellaneous No.745/H of 1999, decided on 25th May, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 491‑‑‑Habeas corpus petition‑‑‑Report of bailiff showed that there was no case registered against the detenus‑‑‑Detenus complained of physical torture by police‑‑‑Effect‑‑‑Where bailiff found no case registered against the detenus, their arrest was illegal ‑‑‑Detenus were set at liberty‑‑‑Bailiff was directed to get medical examination of the detenus and if the injuries were found on their persons, detenus would have a right to file a complaint or to get a case registered against responsible Police Officers.

Malik Waheed Anjum for Petitioner.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 186 #

2000 P Cr. L J 186

[Lahore]

Before Muhammad Naseem Chaudhri, J

MUKHTAR AHMAD ALIAS MOKHA‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2879/B of 1999, heard on 17th June, 1999

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

‑‑‑‑S. 497‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17‑‑‑Bail, grant of‑‑‑Case of further inquiry‑‑‑Unexplained delay of ten days in registration of F.I.R.‑‑‑Injured prosecution witnesses were medically not examined‑‑‑No resident of the locality arrived at the place of occurrence except two guests who were staying there‑‑‑Forcible removal of buffaloes being a question of further inquiry, accused was admitted to bail in circumstances.

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

‑‑--‑S. 497‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17‑‑‑Penal Code (XLV of 1860), S.411‑‑‑Bail, grant of ‑‑‑Haraba‑‑Forcible removal of buffaloes by accused was to be proved during the trial‑‑ Recovery of case property from the accused fell under provision of S.411, P.P.C. and such offence did not fall within the prohibitory clause of S.497, Cr.P.C.‑‑‑Investigation was completed and accused was in judicial lock‑up‑‑‑No liklihood of abscondence of accused, tampering with the prosecution evidence; there was no danger of the offence being repeated by the accused and accused was not a previous convict‑‑‑Bail was allowed accordingly.

Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Abdul Hameed Siddique and 2 others v. The State 1993 PCr.LJ 446 ref.

Imtiaz Hussain Khan Baluch for Petitioner C.M. Latif for the State.

Date of hearing: 17th June, 1999

PCRLJ 2000 LAHORE HIGH COURT LAHORE 190 #

2000 P Cr. L J 190

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD SHARIF‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal. Miscellaneous No.455/B of 1999, decided on 25th March, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑‑Case of further inquiry‑‑‑Accused was separately found innocent during three investigations conducted by police‑‑‑Only a suspicion was expressed in the F.I.R. regarding" involvement of the accused in the commission of offence‑‑Effect‑‑‑Suspicion, howsoever strong, could never be a substitute for proof beyond reasonable doubt required in a criminal case‑‑‑Where prosecution was bereft of any such proof against the accused and merely because accused and his co‑accused were locked in civil litigation with the deceased, that itself, prima facie could not connect the accused with the offence‑‑‑Case of the accused being that of further inquiry, bail was allowed to him.

Syed Murtaza Ali Zaidi for Petitioner.

Karam Hussain Jawa for the Complainant Kanwar Riaz Ahmad for the State.

Date of hearing: 25th March, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 197 #

2000 P Cr. L J 197

[Lahore]

Before Ali Nawaz Chowhan, J

Rana MUHAMMAD ASHRAF and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1688‑B of 1999, decided on 6th October, 1999

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

‑‑‑‑S. 497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)‑‑‑Penal Code (XLV of 1860), 5.419/466‑‑‑Bail‑‑‑Accused admittedly were now married and their Nikahnama was not disputed‑‑‑Question to be seen was whether the pregnancy of female accused at the relevant time was from her co‑accused or whether she was already pregnant at the time of divorce from her previous husband‑‑‑Another question to be determined in the case was whether the defence version about the child's mother being the previous wife of the male‑accused divorced by him, was true or not‑‑‑Pregnancy simpliciter was not a conclusive proof about the commission of Zina and the same being a serious allegation had to be established beyond reasonable doubt and through proper evidence in accordance with the principles laid down by Islamic Jurisprudence‑‑‑Case of accused required further inquiry with respect to their guilt in circumstances and they were admitted to bail accordingly.

Al‑Qur'an Majeed: Sura‑tul‑Noor; Sura XXIV translated by Abdullah Yusuf Ali; Sura‑tul‑Noor translated by Maulana Syed Abu‑ul‑A'ala Modudi in Talheem‑ul‑Qura'n, Vol.III, p.333; Manzoor Hussain v. Zahoor Ahmad 1992 SCMR 1191; Abdul Majid Khan v. Mst. Anwar begum alias Anwar Bib: PLD 1989 SC 362 and Mst. Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624 ref.

(b) Muhammadan Law‑‑‑

‑‑‑‑Legitimacy‑‑‑Islamic laws lean in favour of legitimization rather than stigmization.

Manzoor Hussain v. Zahoor Ahmad 1992 SCMR 1191 and Mst Hamida Begum v. Mst. Murad Begum and others PLD 1975 SC 624 ref.

Legitimacy is a status which results from certain facts, whereas legitimation is a proceeding which creates a status which did not exist before. This proceeding becomes necessary where either the existence of a valid marriage cannot be expressly proved or where the child is born within six months of the marriage. In such cases, acknowledgement of legitimacy in favour of the child may be either express, or by necessary implication from the course of treatment by the man of the mother and the child, or from the evidence of repute and notoriety amongst the members of the family, community and respectable members of the locality. Such an acknowledgement raises a presumption of a valid marriage and legitimate birth.

Mehr Masood Sadiq Tulla for Petitioners

Muhammad Zahid for the State. Altaf Hussain for the Complainant. Tahir Haider Wasti, Asstt. A.‑G.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 204 #

2000 P Cr. L J 204

[Lahore]

Before Malik Muhammad Qayyum and Ghulam Mahmood Qureshi, JJ

SABIR AZIZ---Petitioner

versus

SESSIONS JUDGE, LAHORE WITH POWERS OF SPECIAL JUDGE ANTI-NARCOTICS, LAHORE AND ANOTHER---RESPONDENTS

Criminal Miscellaneous No. 135/Q of 1999, decided on 11th October, 1999, (a) Customs Act (IV of 1969)---

----S. 156(1)(89)/ 15.7/ 178---Control of Narcotic Substances Ordinance (XIII of 1996), S.8/9-C---General Clauses Act (X of 1897), S.26---Constitution of Pakistan (1973), Art.13---Criminal Procedure Code (V of 1898), Ss.403 & 561-A---Quashing of proceedings---Accused had already been convicted after trial by the Special Judge (Customs) under the Customs Act, 1969 and he had undergone the period of sentence awarded to him thereunder---Accused, however, had also been summoned by the Special Judge, Anti-Narcotics for trial for offences punishable under Ss.8 & 9-C of the Control of Narcotic Substances Ordinance, 1996---Accused by his act, no doubt, had violated two laws viz. the Customs Act, 1969 and the Control of Narcotic Substances Ordinance, 1996, but his offence was the same for which he could not be tried twice---Second trial was forbidden by Art.13 of the Constitution, S.26 of the General Clauses Act and S.403 of the Code of Criminal Procedure---Main test in such cases was as to whether same evidence would sustain the convictions under both laws---Same evidence would have to be led in the case against the accused in both the forums and ingredients of both the alleged offences were also the same---After his trial under the Customs Act, 1969, accused could not be tried under the Anti-Narcotics Laws---Second trial of the accused before the Special Judge (Anti-Narcotics) was contrary not only to the Constitutional protection, but was also forbidden under the other laws as well, as mentioned above and was, thus, a nullity in the eyes of law and the same was quashed accordingly.

State of Bombay v. S.L. Apte (1968) 3 SCR 107; Om Parkash Gupta v. State of U.P. AIR 1957 SC 458; PLD 1999 Kar. 336; Writ Petition No.14480 of 1999; Mark Mifsud Mrs. Rosemarie Moreley v. Investigating Officer, Customs, Karachi and 2 others PLD 1999 Kar. 336; State v. Anwar Khattak and others PLD 1990 FSC 62; Jonathan Newhouse v. The State and another 1994 PCr.LJ 1433; Broom's Legal Maxims, 10th Edn., p.219 and R. v. Barron (1914) 2 KB 570 rel.

(b) Words and phrases---

......Same offence" ---Words "same offence" would mean an offence whose ingredients are the same.

Mian Abdul Ghaffar for Petitioner.

Kh. Saeed-uz-Zafar, Deputy Attorney-General and A.

Karim Malik for the State

Date of hearing: 13th September, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 214 #

2000 P Cr. L J 214

[Lahore]

Before Muhammad Asif Jan, J

KHALIL AHMAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1810/B of 1999, decided on 15th July, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/109/34---Bail---Four Police Officers, who were not eye-witnesses of the occurrence, agreeing with one another during investigation, had found that the accused although was present at the time of occurrence but he was empty-handed---Such version of the Investigating Officers was in conflict with the ocular account and medical evidence---Three eye-witnesses of the occurrence including the complainant who was brother of the deceased on the other hand had unanimously stated that the accused was armed with a .30 bore pistol with which he fired twice at the deceased resulting in his death and their version was in line with the post-mortem report---Reasonable grounds existed to believe that the accused was guilty of the offence charged with which fell within the prohibition contained in S.497(1), Cr.P.C.---Accused was refused bail in circumstances.

Mazhar Iqbal Sidhu for Petitioner, M. Saleem Shad assisted by Ch. Rahim-ud-Din for the State. Ch. Sultan Ghani for the Complainant.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 223 #

2000 P Cr. L J 223

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

Mst. SHARIFAN and another---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No.568/Q of 1999, heard on 2nd July, 1999.

Penal Code (XLV of 1860)---

----S. 302/324/109/34---Criminal Procedure Code (V of 1898), Ss.494 & 561-A---Quashing of proceedings---Withdrawal from prosecution---Section 494, Cr.P.C. not redundant---District Magistrate was competent under S.494, Cr.P.C. to instruct the Public Prosecutor to withdraw the case from the Sessions Court on the basis of the discharge report framed by the Investigating Agency regarding innocence of the accused---No probability of conviction of accused through trial existed in the case which amounted to an exercise in futility--Provision of 5.494, Cr.P.C. were applicable---Proceedings going on against the accused in Sessions Court were quashed accordingly.

M. Abdul Rashid Raashid for Petitioners. Niaz Ahmad Khan, A.A.-G. for the State, Date of hearing: 2nd July, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 238 #

2000 P Cr. L J 238

[Lahore]

Before Maulvi Anwar-ul-Haq, J.

BARKAT ALI ---Petitioner

Versus

S.H.O., POLICE STATION SADAR, KABIRWALA

and others---Respondents

Writ Petition No.7195 of 1999, decided on 16th August, 1999.

Constitution of Pakistan (1973)---

----Art. 199---Criminal Procedure Code (V of 1898), S.154---Constitutional petition---Quashing of F. I. R. ---Contention of the accused was that matter between the parties being of civil nature F.I.R. be quashed--Police had completed investigation in the matter and an incomplete Challan had also been filed in the Trial Court---Effect---Appropriate course for Trial Court would be to delve into the controversy in question---High Court declined interference in the course of investigation in circumstances.

Shahnaz Begum v. Honourable Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677 fol.

Ch. Faqir Muhammad for Petitioner. Mian Arshad Latif for Respondent No.2.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 264 #

2000 P Cr. L J 284

[Lahore]

Before Mumtaz Ali Mirza, J

Dr. ZULKIFAL‑‑‑Petitioner

versus

PERVAIZ AKHTAR MUGHAL and others‑‑‑Respondents

Criminal Miscellaneous No.205/CB of 1999, decided on 1st June, 1999.

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

‑‑‑‑S. 497/498‑‑‑Bail‑‑‑Bail can be refused even in cases which do not fall within the prohibitory clause of S.497(1), Cr.P.C.

Imtiaz Ahmad and another v. The State PLD 1997 SC 545 and Muhammad Afzal and another v. The State 1997 SCMR 279 rel.

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

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), S.420/468/471‑‑‑Cancellation of pre‑arrest bail‑‑‑Offence under S.467, P.P.C. was clearly made out from the facts and circumstances of the case as alleged in the F.I.R. against the accused which was punishable with imprisonment for life and fell within the prohibitory clause of S.497(1), Cr.P.C.‑‑‑No enmity was brought to the notice of the Court so as to justify false implication of accused in the case by the complainant‑‑‑Sessions Court after having come to the conclusion that a prima facie case had been made out against the accused, had no justification whatever to grant pre‑arrest bail to them and discretion had not been properly exercised by it‑‑‑Pre‑arrest bail allowed to accused by Sessions Court was recalled in circumstances.

Imtiaz Ahmad and another v. The State PLD 1997 SC 545 and Muhammad Afzal and another v. The State 1997 SCMR 279 rel.

‑‑‑‑S. 498‑‑‑Pre‑arrest bail‑‑‑Showing of prosecution case against accused being prompted by ulterior motives or actuated by bad faith alone is not sufficient while seeking pre‑arrest bail, but the explanation offered by him in his defence as to his innocence qua the allegations of his false implication should be plausible and should appeal to reason.

M. Ilyas Siddiqui for Petitioner.

Z. Babar Awan for Respondents Nos. l and 2.

Malik Abdul Qayyum for the State.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 272 #

2000 P Cr. L J 310

[Lahore]

Before Maulvi Anwar-ul-Haq, JJ

Mst. DAULAN ALIAS THERAI and others---Petitioner

versus

S.S.P., VEHARI and others- --Respondents

Writ Petition No,7214 of 1999, decided on 10th August, 1999.

(a) Words and phrases-

...."Kanwari".---Meaning---Vernacular word used to describe a virgin as also an unmarried woman.

(b) Constitution of Pakistan (1973)---

----Art. 199---Criminal Procedure Code (V of 11398), S.154---Constitutional petition---Quashing of F.1.R.---Investigation of case---Interference by High Court in investigation---Scope---Accused persons were declared innocent in first investigation whereas two successive investigations found the accused guilty of the offence---Accused persons were not joined in the two successive investigations---Effect---High Court could take corrective measures and that would not constitute interference with the investigation of the case--Investigating Officer was directed by High Court to give chance to accused persons to present their side of story and conclusion would be drawn after evaluating the version of the accused party and any material produced in support of the same.

Anwar Ahmad Khan v. The State and another 1996 SCMR 24 and Shahnaz Begum v. The Honourable Judges of the High, Court of Sin--- and Balochistan and another PLD 1971 SC 677 rel.

Mian Abbas Ahmad for Petitioners.

Khalid Ashraf Khan for Respondents.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 284 #

2000 P Cr. L J 352

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Asif Saeed Khan Khosa, JJ

NISAR MASIH and 2 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.359 of 1996 and Murder Reference No.70 of 1997, heard on 5th April, 1999.

Penal Code (XLV of 1860)---

----Ss. 302/34 & 324/34---Appreciation of evidence---Occurrence had taken place in daylight ---F.I.R. had been lodged with sufficient promptitude with all the necessary details---Eye-witnesses were not only closely related to the deceased but also to the accused and had the stamp of serious injuries on their persons so as to vouchsafe their presence at the spot during the occurrence---Accused in their statements recorded under S.342, Cr.P.C. had also admitted the presence of said eye-witnesses at the place of incident--Ocular testimony was consistent, confidence inspiring and implicitly reliable which was corroborated by the admitted motive, recovery of knife and daggers stained with human blood from the accused, medical evidence and reasonably prompt F.I.R.---Plea of self-defence taken by accused was not substantiated which even had not explained the injuries sustained by' the eye-witnesses, rather the same had been proved by the prosecution to be not self-suffered---Accused had committed the offence intentionally sharing the common intention in that regard--Convictions and sentences of accused were upheld in circumstances

Sahibzada Farooq Ali for Appellant.

Mehr Muhammad Saleem Akhtar for the State.

Syed Sardar Shah Bokhari for the Complainant.

Date of hearing: 5th April, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 310 #

2000 P Cr. L J 365

[Lahore]

Before Asif Saeed Khan Khosa, J

MALANG SHAH and another---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No.5767/B of 1999, heard on 29th October, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10/11---Bail, grant of---Course adopted by Sessions Court in recording evidence and conducting investigation at bail stage was disapproved by High Court---Question whether the Nikahnama of the accused was genuine or not was yet to be gone into by the Trial Court---Fact whether the accused were living as validly married to each other or were living in adultery, itself required further probe---Case of lady accused also attracted the first proviso to S.497(1), Cr.P.C.---Accused were no longer required for the purpose of investigation and bail was not to be withheld by way of premature punishment---Case against accused fell within the ambit of 5.497(2), Cr.P.C. calling for further inquiry into their guilt---Accused were admitted to bail in circumstances.

Muhammad Yousaf and another v. The State PLD 1988 FSC 22; Allah Ditta and others v. The State PLD 1989 SC 744 and Shah Gulzam and another v. The State 1989 PCr.LJ 2395 ref.

Masud Mirza for Petitioners.

Syed Abaid-ur-Rehman for the State.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 352 #

2000 P Cr. L J 383

[Lahore]

Before Mian Muhammad Najum-uz-Zaman and Asif Saeed Khan Khosa, JJ

KHADIM HUSSAIN---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.262 of 1995 and Murder Reference No. 192 of f997, heard on 3rd June, 1999.

Penal Code (XLV of 1860)---

-----Ss. 302(b), 452, 324 & 336---Appreciation of evidence---Occurrence having taken place inside the house of eye-witnesses, they were the most natural witnesses of the same and their presence at the spot was beyond doubt, particularly when one of them had herself been seriously injured during the incident---Slight delay in reporting the matter to the police in the circumstances was immaterial---Eye-witnesses had made consistent statements regarding the essential details of the main incident which inspired full confidence and were even corroborated by the motive and medical evidence in all relevant particulars---Defence evidence was devoid of any serious credence---Accused had acted in a most callous, cruel and brutal manner and acid thrown by him at his victim had not only killed an innocent child but also caused permanent disfigurement of the bodies of his other victims and their disfigured faces and bodies would remain a living testimony to the accused's criminality for the rest of their lives---No mitigating circumstance was, therefore, available warranting lesser sentence for the accused---Convictions and sentences including the sentence of death awarded to accused by Trial Court were confirmed in circumstances.

Muhammad Ramzan Khalid for Appellant.

Mehr Muhammad Saleem for the State.

Date of hearing: 3rd June, 1999..

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PCRLJ 2000 LAHORE HIGH COURT LAHORE 440 #

2000 P Cr. L J 446

[Lahore]

Before Karamat Nazir Bhandari, J

MUHAMMAD ABDULLAH‑‑‑Petitioner

versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No.2535/B‑C of 1999, decided on 1st July, 1999.

Criminal Procedure Code (V of 1898) ‑‑

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Cancellation of bail‑‑Many persons examined by the Investigating Officer, no doubt, had stated that the deceased was having illegal connection with the sister of accused, but it was not sufficient to belie the direct allegations levelled in the F.I.R. and it was for the Trial Court to see whether circumstances existed justifying the killing of the deceased‑‑‑Prosecution witnesses by direct and clear allegations had supported the prosecution version made in the F.I.R.‑‑‑Bail granted to accused by Sessions Court on illegal reasons was cancelled in circumstances.

Zafar Abbas Mashadi Syed for Petitioner.

M. Amin Ullah for the State

Muhammad Ahsan Bhoon for Respondent No.2.

Date of hearing: 1st July, 1999.;

PCRLJ 2000 LAHORE HIGH COURT LAHORE 441 #

2000 P Cr. L J 452

[Lahore]

Before Muhammad Nawaz Abbasi and Syed Najam-ul-Hassan Kazmi, JJ

NASRULLAH KHAN---Petitioner

versus

THE STATE --- Respondent

Criminal Appeal No. 146 of 1997, decided on 30th June, 1999. .

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

----S. 9---Appreciation of evidence---Recovery of Charas weighing 980 grams from the possession of accused at the time of his arrest and search was proved by consistent prosecution evidence---Accused being a stranger to witnesses, police officials deposing against him could not be said to be not independent witnesses and his false implication in the case could not be possibly inferred---Accused, however, without challenging his conviction had prayed for only reduction in his sentence---Accused had no previous history of dealing in narcotics and had spent a total period of two years and five months in jail facing agony of trial---Sentence of seven years' R.I, awarded .to accused by Trial Court was reduced to imprisonment already undergone by him in circumstances---Sentence of fine was also substantially reduced.

Malik Rab Nawaz Noon for Petitioner.

Qazi Ahmad Haeeni Qureshi for the State.

Date of hearing: 30th June, 1998.'

PCRLJ 2000 LAHORE HIGH COURT LAHORE 446 #

2000 P Cr. L J 454

[Lahore]

Before Tassaduq Hussain Jilani and Bashir A. Mujahid, JJ

IJAZ AHMAD and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent‑

Criminal Appeal No.791 of 1997 and Murder Reference No.37 of 1998, neard on 20th May, 1999.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Motive set up by the prosecution did not inspire confidence‑‑‑Evidence of "last‑seen" furnished by a relative of the complainant was not corroborated by any unimpeachable source Testimony about conspiracy being not trustworthy, could not be relied upon for sustaining conviction‑‑‑Joint confession made by accused had no evidentiary value in law‑‑‑Recoveries effected in violation of S.103, Cr.P.C., in the case on pointing out of accused were not of incriminating pt nature and the same were not even produced in the Court ‑‑‑ F.I.R. was lodged after unexplained delay which appeared to have been recorded after due deliberations and consultations rather at the dictation of police‑‑‑Time, place and name of actual assailant were all shrouded in mystery and the accused had been involved simply on suspicion‑‑‑Investigation in the case had been carried out dishonestly‑‑‑Trial Court had disbelieved the prosecution evidence qua the acquitted co‑accused and the same could not be believed qua the accused‑‑‑No cogent, reliable, convincing and unimpeachable evidence had been produced by the prosecution to connect the accused with the commission of offence‑‑‑Accused were acquitted on benefit of doubt in circumstances.

Zairullah v. The State 1997 SCMR 396; Muhammad Akram and 3 others v. The State 1971 PCr.LJ 1299; Pahlwan and others v. The State PLJ 1971 Cr.C. 503 and Anwar Jamal Hussain and another v. The State PLJ 1992 Cr.C. 30 ref.

(b) Criminal trial‑

‑‑‑‑ Circumstantial evidence‑‑‑Essentials enumerated.

Necessary ingredients/essentials to establish an offence by circumstantial evidence are:‑‑

(i) The circumstances from which the conclusions are drawn should be fully established;

(ii) All the facts must be consistent with hypothesis;

(iii) The circumstances should be of a conclusive nature and tendency;

(iv) The circumstances should, to a moral certainty, actually exclude every hypothesis but the one proposed to be proved.

Ch. Manzoor Hussain Basra for Appellants.

Ch. Imtiaz Ahmad for the State.

Ch. Muhammad Yaqoob Sindhu for the Complainant.

Date of hearing: 20th May, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 452 #

2000 P Cr. L J 461

[Lahore]

Before Kh. Muhammad Sharif, J

MAQSOOD ALIAS SOODA‑‑‑Petitioner

versus

THE STATE ‑‑‑Respondent

Criminal Miscellaneous No.3422/B of 1999, decided on 9th July, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14‑‑‑Bail, grant of‑‑‑Accused was behind the bars for the last about six months ‑‑‑Co‑accused in the case had neither been arrested nor any proceedings under 5.87/88, Cr.P.C. were initiated against him‑‑‑No complete or incomplete challan had so far been submitted in the Court‑‑Accused was admitted to bail in circumstances.

Najeeb Faisal for Petitioner.

Muhammad Iqbal Butt for the State.

Date of hearing: 9th July, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 454 #

2000 P Cr. L J 464

[Lahore]

Before Falak Sher and Muhammad Asif Jan, JJ

QALIB ABBAS ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6654/B of 1998, decided on 9th February, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/148/149‑‑‑Bail, grant of‑‑‑No overt act had been ascribed to accused except the ineffective firing made by him with a kalashnikov which even subsequently, stood refuted by the admitted non‑recovery, of any crime‑empty of the said weapon of offence from the spot‑‑‑No incriminating article was recovered from the accused who was even alien to motive‑‑‑Accused had already suffered six months internment‑‑‑Case having been entrusted to the Crimes Branch for reinvestigation, commencement of trial was out of sight‑‑‑Accused was allowed bail in circumstances.

Syed Mazhar Ali Akhtar Naqvi for Petitioner.

Rasia Sarwat for the State.

Ch. Muhammad Rafiq Warraich for the Complainant.

Date of hearing: 9th February, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 461 #

2000 P Cr. L J 471

[Lahore]

Before Tanvir Ahmad Khan, J

MUHAMMAD YAR and others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.9/B of 1999, decided on 26th February, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/324/452/170/171/148/149/ 109‑‑‑Bail‑‑‑Case of accused was distinguishable from that of co‑accused who had. already been released on bail by High Court‑‑‑Accused during investigation had been found fully involved in the crime and challan had been submitted in the Court against them‑‑‑Guns and rifles had been recovered at the instance of accused‑‑‑Bail was refused to accused in circumstances‑‑‑No recovery whatsoever, however, had been made from co-accused, nor any role in the occurrence had been attributed to him and he was admitted to bail accordingly.

Muhammad Ameer Bhatti for Petitioners.

Fawzi Zafar, A.A.‑G. and Ch. Muhammad Amin Javed for the State

Date of hearing: 26th February, 1999

PCRLJ 2000 LAHORE HIGH COURT LAHORE 464 #

2000 P Cr. L J 477

[Lahore]

Before Tassaduq Hussain Jilani, J

MUHAMMAD ISMAIL and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.483/B of 1999, decided on 26th February, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.337‑A(i)/337‑A(ii)/337‑A(iii)/ 337‑F(ii)/148/149‑‑‑Bail, grant of‑‑‑Police admittedly had challaned both the parties in the case‑‑‑Investigation in the case was complete and accused were no more required for further inquiry‑‑‑Accused were released on bail in circumstances.

Mian Jamil Akhtar for Petitioners. Naeem Sadiq for the State.

Date of hearing: 26th February, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 471 #

2000 P Cr L J 482

[Lahore]

Before Zafar Pasha Chaudhry, J

SAMI-UZ-ZAMAN alias SHAMMAN --- Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No.626/B of 1999, decided on 24th February, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11---Bail, grant of ---Abductee had made self-contradictory and inconsistent statements which had made accused entitled to benefit of doubt- Abductee was major.and capable of contracting marriage---Case against accused as such was open to further inquiry---Accused was allowed bail in circumstances.

Ch. Muhammad Abdul Saleem for Petitioner Sarfraz Nawaz Malik for the State.

Dateof hearing 24th February. 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 477 #

2000 PCrLJ 488

[Lahore]

Before Muhammad Asif Jan, J

MUHAMMAD YOUSAF and others---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No.230/B of 1999, decided on 25th February, 1999.

Criminal Procedure Code (V of 1898)--

----S. 497(2)---Penal Code (XLV of 1860), S.302/324---Bail, grant of--Accused were not named in the F.I.R.---Deceased complainant while in injured condition did not mention the names of accpsed or of any other person in the F.I.R. as accused---Accused were subsequently, involved in the case by brother of the deceased in his statement recorded under 5.161, Cr.P.C. on the basis of extra-judicial confession---No recovery had been effected from the accused---Accused had been found innocent in two successive investigations---Case against accused, prima facie, needed further inquiry within the meaning of S.497(2), Cr.P.C. which entitled them to grant of bail--Accused were admitted to bail accordingly.

Muhammad Akram Javed for Petitioners. Saleem Shad for the State. S.M. Rasheed for the Complainant.

Date of hearing: 25th February, 1999.

2000 P Cr. L J 541

[Lahore]

Before Zafar Pasha Chaudhry, J

MUHAMMAD ASHRAF‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6743/B of 1998, decided on 2nd July, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(1), third proviso‑‑‑Penal Code (XLV of 1860), S.302/306/308‑Bail on ground of statutory delay‑‑‑Deceased being daughter of the accused, his case was covered by S.306(b), P.P.C. and if ultimately the sentence had to be imposed under 5.302, P.P.C. read with Ss.306 & 308, P.P.r the maximum sentence prescribed thereunder would be treated as punishment for the purpose of computing the delay envisaged by third proviso to S.497(1). Cr.P.C.‑‑‑Accused was in confinement for the last one year and the challan having not so far been submitted in the Court, he could not be held responsible for the delay‑‑‑Accused being a Government servant and having not been required in any other criminal case, his case was not hit by the fourth proviso to S.497(1), Cr.P.C.‑‑‑Bail was allowed to accused in circumstances.

Abdur Rauf v. State 1998 SCMR 1771; Muhammad Ramzan v. The State 1996 PCr.LJ 1658; Muhammad Latif v. Nazir Ahmad PLD 1975 Lah. 568 and Amir's case PLD 1972 SC 277 ref.

Ch. Muhammad Hussain Chachhar and Mian Muhammad Ilyas for Petitioner.

Afzaal Siddiqi for the Complainant.

Ashtar Ausaf Ali, A.‑G., Punjab for the State. Malik Muteen Khokhar, A.A. ‑G.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 540 #

2000 P Cr. L J 546

[Lahore]

Before Muhammad Naseem Chaudhri, J

MUHAMMAD IMRAN‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.529/B of 1999, decided on 17th February. 1999

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10/11‑‑‑Bail‑‑‑Accused had allegedly gone to the house of the prosecutrix and after having forcibly removed her to the room of his own house committed Zina‑bil‑Jabr with her‑‑‑Delay in lodging the F,I.R. was plausibly explained showing the efforts for compromise going between the families of the victim and the accused which in the present set‑up are made in such cases before reporting the matter to the police‑‑‑Statement of the prosecutrix was corroborated by medical evidence pertaining to her as well as to accused about his potency‑‑‑Accused was, prima facie, connected with the offence which was a heinous one and fell within the prohibitory clause of S.497(1), Cr.P.C.‑‑‑Bail was declined to accused in circumstances.

Mian Muzaffar Ahmad for Petitioner.

Nadeem Afzal for the State.

Date of hearing: 17th February, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 541 #

2000 P Cr. L J 559

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD KASHIF ZIA ---Applicant

versus

MUHAMMAD SARWAR and 3 others---Respondents

Criminal Miscellaneous No.53/Q of 1999, decided on 22nd October, 1999.

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

----S. 145---Dispute concerning land etc. likely to cause breach of peace---Where the possession of the disputed property is regulated by the Civil Court, the matter falls outside the jurisdiction of the Magistrate under S.145, Cr.P.C.

Shah Muhammad v. Haqnawaz and others PLD 1970 SC 470 ref.

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

----Ss. 145 & 561-A---Quashing of proceedings---At the time of initiating proceedings under S.145, Cr.P.C., a civil suit for specific performance with regard to the sale of the property in question was already pending in which the Civil Court had passed the status quo order---Magistrate, thus, had no jurisdiction to initiate proceedings under S.145, Cr.P.C. and pass the impugned order of sealing the said property which was coram non judice and had no legal sanctity---Sessions Court while dismissing the revision petition against the said order of the Magistrate had also not exercised its jurisdiction in accordance with law---Both the impugned orders were set aside accordingly.

Imdad Khan and 7 others v. Syed Muhammad Ilyas and 2 others 1971 SCMR 581; Mehr Muhammad Sarwar and others v. The State and others PLD 1985 SC 240 and Shah Muhammad v. Haqnawaz and others PLD 1970 SC 470 ref.

Masud A. Malik alongwith Muhammad Nawaz Khokhar for Petitioner.

Rana Shakeel Ahmad Khan for Respondents.

Muhammad Saleem Shad for the State.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 546 #

2000 P Cr. L J 576

[Lahore]

Before Tassaduq Hussain Jilani and Ali Nawaz Chowhan, JJ

MUHAMMAD ABDULLAH---Petitioner

versus

THE STATE---Respondent

Criminal Revision No.4 of 2000, decided on 20th January, 2000.

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

----S. 302/324/447/148/149---Criminal Procedure Code (V of 1898), Ss.221, 227 & 439---Addition of S.302, P.P.C in the charge---Validity---Station House Office, of police station while submitting the challan against the accused had added S.302, P.P.C to the offences under S.324/447/148/149, P.P.C although in the previous investigations no such recommendation was made---Object of the charge being just to enable the accused to know about the precise accusations against him, he was not precluded from advancing his version, nor the charge could constrain the Court from arriving at a judgment of conviction or otherwise---Charge could only enable the Court to start with the trial and after recording evidence to decide whether the same had been established beyond reasonable doubt against the accused and what offence he had committed or whether at all a case had been made out against him---Charge once framed did not become rigid and could be altered or changed by the Court under 5.227, Cr.P.C.---Impugned order of Trial Court rejecting the application of accused seeking deletion of S.302, P.P.C from the charge did not suffer from any illegality, nor the same had caused any miscarriage of justice.

AIR 1953 Mad. 507; U.S. v. Zovluck, D.C.N.Y. 274 F.Supp. 385, 390; U.S. v. Glaziou, C.A.N.Y. 402 F.2d 8, 15; Waroo v. Emperor 49 Cr.LJ 72(81) and AIR 1948 Sindh 40 ref.

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

----S. 439---High Court's powers of revision ---Scope---Revisional jurisdiction cannot be used for interrupting or subverting the normal criminal proceedings and unless an order under reference is found tainted with miscarriage of justice the same cannot be interfered with.

Sardar Latif Khan Khosa for Petitioner.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 559 #

2000 P Cr. L J 585

[Lahore]

Before Riaz Kayani, J

LATEEF and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2419/B of 1998, decided on 12th January, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.337‑A(i)/337‑A(iii)/337‑L(ii)/ 34‑‑‑Bail‑‑‑Injuries attributed to accused did not fall within the prohibitory clause of S.497(1), Cr.P.C.‑‑‑Accused were behind the bars for the last three months‑‑‑Discretion for grant of bail, in circumstances, could be extended to accused‑‑‑Accused were enlarged on bail accordingly.

Altaf Ibrahim Qureshi for Petitioners.

Zafarullah Khan Khakwani for the State.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 576 #

2000 P Cr. L J 589

[Lahore]

Before Iftikhar Hussain Chaudhry and Raja Muhammad Khurshid, JJ

AHMAD NAWAZ‑‑‑Appellant

versus

KHUSHI MUHAMMAD and another‑‑‑Respondents

Criminal Appeal No. 1018 of 1998, decided on 1st July, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 417‑‑‑Penal Code (XLV of 1860), S.300/34‑‑‑Appeal against acquittal‑‑‑Trial Court had acquitted accused after evaluating evidence brought on record in accordance with principles of administration of criminal justice by advancing forceful reasons for disbelieving evidence of motive, ocular account of occurrence, contradiction between eye‑witnesses and medical evidence and substitution of accused for one named in F.I.R. who had obtained pre‑arrest bail‑‑‑Inimical and interested evidence examined at trial was not corroborated by independent evidence‑‑‑Recovery of weapon of offence was also not of any use as same was never sent to Forensic Laboratory for test‑‑‑Trial Court, in circumstances, had rightly acquitted accused and no ground was ‑available for interference in order of acquittal‑‑Court should be slow to interfere with judgments of acquittal unless it was felt that gross injustice had been done in administration of criminal justice or that judgment of Trial Court was perverse, completely illegal and on perusal of evidence no other conclusion could be made except that accused was guilty or there had been complete misreading of evidence leading to miscarriage of justice‑‑‑Order of acquittal could not be interfered with merely because on re‑appraisal of evidence, Court would come to conclusion different from that of Court acquitting accused provided both conclusions were reasonably possible.

Yar Muhammad and 3 others v. The State.1992 SCMR 96 and The State v. Muhammad Sharif and others 1995 SCMR 635 ref.

Malik Mansif Awan for Appellant

Date of hearing: 1st July, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 585 #

2000 P Cr. L J 594

[Lahore]

Before Riaz Kayani, J

MUMTAZ HUSSAIN ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.703/B of 1999, decided on 25th June, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 49,7‑‑‑Penal Code (XLV of 1860), S.489‑D‑‑‑Bail, grant of‑‑‑Injuries present on the body of the accused could not be explained by the Police Officer present in the Court as to how he had suffered the same‑‑‑Said injuries could not be said to have been already present on the person of accused at the time of his arrest, otherwise they would have been mentioned in the report‑‑‑Expert opinion was essential to show whether the material recovered from the accused could be used in counterfeiting currency notes, which was not obtained by the prosecution‑‑‑Case of accused, therefore, needed further inquiry and he was allowed bail accordingly.

Malik Muhammad Ali for Petitioner.

Abdul Khaliq Khan for the State. .

PCRLJ 2000 LAHORE HIGH COURT LAHORE 589 #

2000 P Cr. L J 595

[Lahore]

Before Asif Saeed Khan Khosa, J

IJAZ JAVED and 4 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Revision No.385 and Criminal Miscellaneous Nos. l and 2 of 1999, decided on 22nd July, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 154, 157, 200, 202, 204 & 439‑‑‑Penal Code (XLV of 1860), S.300/34‑‑‑Discharge of accused‑‑‑Effect on complaint case‑‑‑Repeated investigations were made wherein accused were found innocent and on recommendation of police, Court discharged them‑‑‑Private complaint was filed in respect of same incident after discharge of accused‑‑‑Inquiry was held on private complaint and Inquiry Officer recommended summoning of accused to face trial and Court on said recommendation ordered accordingly‑‑‑Order of Court was assailed by accused contending that Court while passing order of summoning accused to face trial had not taken into consideration the fact that they had earlier been discharged declaring them innocent‑‑‑Validity‑‑‑Order of discharge would not amount to cancellation of a case, but would only mean that physical custody of accused was not required for the purposes of investigation for the present‑‑‑Order of discharge would not mean that prosecution stood terminated or smothered‑‑Order of discharge was only an administrative order and could not be utilized for blocking a judicial order of summoning of accused by a Court of law‑‑Discretion exercised by Court in summoning accused in complaint case, would not call for interference by High Court in revision especially when no jurisdictional infirmity, illegality of approach or irregularity of procedure or perversity of reasoning had been pointed out.

Malik Muhammad Akram Khan Awan for Petitioners.

Date of hearing: 22nd July, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 594 #

2000 P Cr. L J 613

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

Mst. IRSHAD alias Mst. WAZIRAN‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.266/B of 1999, decided on 24th February, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Control of Narcotic Substances Act (XXV of 1997), 'S.9‑B‑‑Bail, grant of‑‑‑Accused was a lady and had a suckling baby with her‑‑‑accused did‑ not fall within the prohibitory .P.C.‑‑‑Accused was enlarged on bail in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Mehmood Ahmed for the State.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 595 #

2000 P Cr. L J 619

[Lahore]

Before Maulvi Anwar-ul-Haq, J

MUHAMMAD ASLAM KHOKHAR and others---Petitioners

versus

THE STATE---Respondent

Criminal Revision No. 133 of 1993, heard on 1st December, 1999.

(a) Pakistan Criminal Law Amendment Act (XL of 1958)--

----S. 6(1)---Criminal Procedure Code (V of 1898), Ss.492, 493 & 494--Special Judge, status of---Special Judge, by virtue of S.6(1) of Pakistan Criminal Law Amendment Act, 1958 would be deemed to be a Court of Session and a person conducting prosecution before Court of Special Judge would be deemed to be a Public Prosecutor---Provisions of Code of Criminal Procedure, 1898, except those of Chap.XXXVIII of the Code, would, in so far as these were not inconsistent with Pakistan Criminal Law Amendment Act, 1958, apply to proceedings of Court of Special Judge.

Dr. Nazir A. Shaikh and another v. The State 1989 PCr.LJ 1361 and Qazi Khalid Saif Ullah v. Sh. Lutfur Rehman, Special Judge, Anti-Corruption, Gujranwala Camp at Gujrat and another 1986 PCr.LJ 2619 ref.

(b) Pakistan Criminal Law Amendment Act (XL of 1958)---

----S. 10(4)---Criminal Procedure Code (V of 1898), S.497---Penal Code (XLV of 1860), S.420/467/409/468/471/109---Prevention of Corruption Act (II of 1947), S.5(2)---Withdrawal of prosecution and discharge of accused--Government during trial of accused had decided to withdraw the prosecution of case against accused---Application of accused praying that in the light of Government withdrawing prosecution against them, they should be discharged---Validity---Orders in writing of Government were just a starting point in the process of withdrawal of prosecution as per provisions of S.10(4), Pakistan Criminal Law Amendment Act, 1958---Said provisions did not mean that a prosecution would be withdrawn the moment orders in writing for that purpose were passed by Government---Once orders had been passed by Government only enabling provision for withdrawal of prosecution left in field was 5.494, Cr.P.C.

Mir Hassan v. Tariq Saeed and 2 others PLD 1977 SC 451 ref.

----S. 439---Pakistan Criminal Law Amendment Act (XL of 1958), S.10(4)---Revisional jurisdiction, exercise of---Special Judge while disallowing application for withdrawal of prosecution against petitioner, had acted absolutely within bounds of his jurisdiction---Orders passed by Special Judge not suffering from any illegality or impropriety, could not be interfered with by High Court in revisional jurisdiction.

The State v. Navid Asif and others PLD 1991 Lah. 268 ref.

Muhammad Ali Gilani for Petitioners.

Nemo for the State., Date of hearing: 1st December, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 613 #

2000 P Cr. L J 626

[Lahore]

Before Maulvi Anwar-ul-Haq, J

IMDAD HUSSAIN and others---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No.2238/B of 1999, decided on 21st December, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.337-A(i), 337-A(ii), 337-F(i), 337-H(ii) & 148/149---Bail, grant of---Scuffle between two parties---Conduct attributed to the complainant party was that they went to the house of accused in an aggressive mood---Contents of medico-legal report also did not make a case falling within prohibitory clause of 5.497, Cr.P.C.--Prosecution did not have any explanation for the injuries on persons of members of accused party and suppression of said fact in F.I.R.---Accused were behind the bar for last more than three months---Case against accused being of further inquiry, they were admitted to bail.

Ch. Anwar Khan for Petitioners.

Zafar Mehmood Anjum for the State.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 619 #

2000 P Cr. L J 688

[Lahore]

Before Kh. Muhammad Sharif and Riaz Kayani, JJ

MUHAMMAD IQBAL‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 178, 217, 177 and 176 of 1996, heard on 13th April, 1999.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(a), 302 & 336‑‑‑Appreciation of evidence‑‑‑Eye‑witnesses including the complainant were natural witnesses of the occurrence‑‑‑Mere relationship of eye‑witnesses with the deceased was no criterion to discard their testithony‑‑‑Accused were named in the promptly lodged F.I.R. with their roles in the occurrence ‑‑‑Abscondence of accused for two months after the occurrence had shown their guilty mind and supported the prosecution story‑‑‑Injuries caused by accused to the deceased were collectively sufficient to cause death in the ordinary course of nature‑‑‑ "Chhuri" recovered from an accused was found to be stained with human blood‑‑‑Ocular account was supported by medical evidence‑‑‑Prosecution had proved its case against the accused beyond doubt in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(a) & 302(b)‑‑‑Sentence‑‑Mitigating circumstances‑‑‑Injury attributed to accused was neither on the vital part of the body of the deceased, nor was individually sufficient to 'cause his death as per postmortem report‑‑‑Motive given in the F.I.R. or mentioned during the trial was not believable‑‑‑Conviction of accused under S.302(a), P.P.C. was converted to S.302(b), P.P.C. in circumstances and his sentence of death was altered to imprisonment for life.

Aftab Farrukh and Ghulam Bari Saleemi for Appellant.

Waheed Anwar for the State.

Dates of hearing:. 12th and 13th April, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 626 #

2000 P Cr. L J 695

[Lahore]

Before Kh. Muhamrnad Sharif and Riaz Kayani, JJ

SHAMSHER ALI ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.960 of 1996, heard on 3rd June, 1999.

Explosive Substances Act (XI of 1908)‑‑‑

‑‑‑‑S. 4‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑A‑‑‑ Application of evidence‑‑‑Explosive substance gelatine weighing two Kgs. had been recovered from the possession of accused which could not be planted‑‑‑Police officials deposing against the accused had no. enmity against him‑‑‑Nobody from the locality could dare to make a statement against the accused who belonged to a "Peer" family‑‑‑Prosecution witnesses entrusted with the parcels of the explosive material, no doubt, were not properly and adequately examined by the State Counsel in the Trial Court according to their statements under S.161, Cr.P.C., but such technicalities in such‑like cases could be ignored‑‑‑Conviction and sentence of accused under S.4 of Explosive Substances Act, 1908 were consequently, maintained‑‑‑Recovery of Detonators and Timers from the accused was doubtful as the same were not mentioned in the F. I. R. ‑‑‑Accused was acquitted of the charge under S.13‑A of the Arms Ordinance, 1965 on benefit of doubt in circumstances.

Pir S.A. Rashid for Appellant.

A.H. Masood for the State.

Date of hearing: 3rd June, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 688 #

2000 P Cr. L J 699

[Lahore]

Before Kh. Muhammad Sharif, J

ABDUL SHAKOOR---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 173 of 1998, heard on 8th April, 1999.

Penal Code (XLV of 1860)---

----Ss. 364/34 & 302/34---Appreciation of evidence---Occurrence being an un-witnessed one, nobody was named in the F.I.R. as accused---Last-seen evidence furnished by the real brothers of the deceased did not inspire confidence who had not even mentioned the date of having seen the deceased lastly in the company of accused---Evidence of extra judicial confession allegedly made by accused did not show as to why he had approached these prosecution witnesses to admit his guilt and how much influence they had on the complainant party in order to secure pardon for him---Said witnesses who were also the witnesses of recovery at the instance of accused did not belong to the place of recovery which was effected in 'violation of the provisions of S.103, Cr.P.C.---Accused was., acquitted in circumstances.

S.D. Qureshi for Appellant (at State expense). Kh. Muhammad Iqbal ,Butt for the State.

Date of hearing: 8th April, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 695 #

2000 P Cr. L J 703

[Lahore]

Before Kh. Muhammad Sharif, J

ATTIQUE-UR-REHMAN---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.55 of 1996, heard on 7th October, 1999.

Penal Code (XLV of 1860)---

----S. 205---Criminal Procedure Code (V of 1898), Ss.195 & 476--Procedure adopted by Trial Court not according to law---Effect---Sessions Court in conducting trial of accused had adopted the procedure against the spirit of Ss.195 & 476, Cr.P.C---Sessions Court first ought to have framed the charge against the accused which was not done and thereafter, it should have issued show-cause notice to him---Accused was not provided any opportunity to engage a counsel in the case---Conviction and sentence of accused were set aside in circumstances.

1991 PCr.LJ Note 66 at p.47 ref.

Farooq Amjad Mir for Appellant.

Khalid Naveed Dar, Asstt. A.-C?. for the State.

Date of hearing: 7th October, 1999.,

PCRLJ 2000 LAHORE HIGH COURT LAHORE 699 #

2000 P Cr. L J 726

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

IMAM ALI alias SHAUKAT ALI --- Petitioner

versus

SPECIAL JUDGE, ANTI-TERRORISM---Respondent

Writ Petition No.20811 of 1999, decided on 24th November, 1999.

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

----S. 302---Anti-Terrorism Act (XXVII of 1997), S.6 & Sched., C1.2(a)(iv)---Terrorist act---Act of accused, which though fell under cl.2(a)(iv) of the Sched. to Anti-Terrorism Act, 1997, should have some connection or nexus with the provisions of S.6, Anti-Terrorism Act, 1997--_Violence which resulted in the death of the victim should strike in the minds . of the people to be a terror and the death should have been caused with weapons enumerated in S.6 or a lethal weapon---Lethal weapon ---Concept--Strangulation with a Dopatta by tightening the noose would not amount to cause death by a lethal weapon---Murder perpetrated by weapons other than those mentioned in S.6, Anti-Terrorism Act, 1997, therefore, would not attract the provisions of the Anti-Terrorism Act, 1997---Principles.

In the present case 15 injuries with a blunt weapon were caused to the deceased lady. Probably these injuries were caused by the perpetrator of the crime to persuade the lady to submit to his lust and upon her refusal to do so time and again blows were given and finally when the ulterior motive could not be attained she was put to death by strangulating her with her Dopatta put around her neck. The victim was subjected to abject cruelty, therefore, the act of the accused fell in clause 2(a)(iv) of the Schedule of Anti-Terrorism Act, 1997. However, the act although fell under the Schedule, should have some connection or nexus with the provisions of section 6 of the Act. In section 6 of the Act the violence which resulted in the death of the victim should strike in the minds of the people terror and secondly the death has to be caused with weapon enumerated or with a lethal weapon.

Admittedly the death of the victim was not caused by using bomb, dynamite or other explosive or inflammable substances, or fire-arms or noxious gases or chemicals or other substances of a hazardous nature. Court had to see whether death caused by strangulation with Dopatta around the neck amounted to death caused by a lethal weapon. The answer would be in the negative. A lethal weapon is that weapon which by its use does not allow the victim the slightest chance to defend himself against the onslaught and keeps him at bay as long as the aggression continues. Presence of 18 injuries on the body of the deceased lady showed that she made every effort to free herself from the stranglehold of the accused but failed and ultimately succumbed. Strangulation, with a Dopatta by tightening the noose, would, therefore, amount to cause death by a lethal weapon. In order to apply the provisions of section 6 effectively to an act, to bring it within its ambit, a distinction had to be made between the "Terrorist act" and a run-of the mill crime. The act which resulted in death had to be an act of violence and mostly violence was perpetrated with a weapon. Weapons enumerated in section 6 were bombs, dynamite or other explosive or inflammable substances, or fire-arm or similar weapons of lethal character, or poisons or noxious gases or chemicals or other substances of a hazardous nature. Crime of murder perpetrated by weapons other than those mentioned in section 6 would not attract its provisions and trying to bring it within its ambit, would be doing violence to the intention of the law giver.

The offence committed must have some nexus with the object enumerated in sections 6, 7 and 8 of the Act. Strangulation of a house-wife by a carpenter employed to repair the bed was not a case likely to cause terror in the minds of the people. If the offences mentioned in the Schedule do not have nexus with the object of the Act and offences covered by sections 6, 7 and 8 thereof, the case would not fall within the purview of the Anti=Terrorism Act, 1997.

The case of murder had to be dealt with by the Courts having general jurisdiction and unless a particular case fell on all fours, fell within the ambit of law provided. for Special Courts, the forums created under special jurisdiction, could not embark upon the trial of those matters.

The present case related to killing of the deceased lady by ordinary means of strangulation had no nexus with the object enumerated in section 6 of the Act. Therefore, cognizance of the case could not' have been taken by the Special Court.

Mehram Ali and others v. Federation of Pakistan and others PLD 11)98 SC 1445; Black's Law Dictionary; Kartar Singh v. State of Punjab (1994) 3 SC 569 and Usmanbhai Dawoodbhai Memon v. State of Gujarat (1998) 2 SCC 271 ref.

(b)Words and phrases---

----"Terror" and "terrorism" ---Meanings.

Black's Law Dictionary ref.

----"Lethal weapon" ---Meanings.

Malik Waqar Saleem for Petitioner.

Nemo for Respondent.

Safdar Javaid Cheema and Javaid Iqbal for the Complainant.

Date of hearing: 24th November, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 703 #

2000 P Cr. L J 768

[Lahore]

Before Tanvir Ahmad Khan, J

ABDULLAH alias MALLI‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Miscellaneous Application No. 1245/B of 1998, decided on 6th August, 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/364/34‑‑‑Bail‑‑‑Murder was unseen‑‑‑Motive was mainly attributed to co‑accused‑‑‑Dead body of the deceased lady was recovered at the pointation of co‑accused‑‑‑Accused had been implicated simply on the ground of having been seen by the witnesses with the deceased alongwith co‑accused against whom motive had been attributed‑‑‑Accused was enlarged on bail in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Mehr Muhammad Saleem for the State.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 726 #

2000 P Cr. L J 790

[Lahore]

Before Khalil-ur-Rehman Ramday and Asif Saeed -Khan Khosa, JJ

ANWAR ALI ---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1865/B of 1999, decided on 20th September, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/324/148/149---Bail---Earlier plea of accused for his release on bail on account of delay had already been dismissed by High Court which order had not been disturbed by Supreme Court and his further petition on the same ground was misconceived--Accused, however, had a right to pray to High Court for the implementation of the direction issued by it for early disposal of the trial which had been discontinued on the joint request of the parties due to pendency of a transfer application in High Court which had since been dismissed---Entire prosecution evidence in the case had been examined and some Court-witness was yet to be examined---Bail application was consequently dismissed with the direction to Sessions Court for early disposal of the trial.

Rana Ijaz Ahmad Khan and Malik Riaz Khalid Awan for Petitioner.

M. Saleem Shad for the State.

Muhammad Taqi Khan for the Complainant.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 768 #

2000 P Cr. L J 808

[Lahore]

Before Riaz Kayani, J

SHAHID HABIB ‑‑‑Petitioner

versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No.98‑Q of 1995, heard on 22nd December, 1999.

Drugs Act (XXXI of 1976)‑‑‑

‑‑‑‑S. 23/27‑‑‑Punjab Drug Rules, 1988, R.4‑‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑‑Quashing of proceedings‑‑‑Accused had failed to obtain the warrantee containing the Batch Number of the drug for which he was hauled up being spurious in nature from the medical store from where he had purchased the said drug‑‑‑Hearing of the accused before according sanction for his prosecution by the Provincial Quality Control Board and requiring his explanation was mandatory and a sine qua non under R.4 of the Punjab Drug Rules, 1988‑‑‑In case of lapse being of minor and rectifiable nature a warning could. be given to the accused or in the alternative any other action including recalling of Batches could be resorted to‑Warning could only be issued to the accused in the case as although he had obtained a receipt from the aforesaid Medical Store for purchasing the medicine, yet he did not obtain a warrantee as required by law‑‑‑Requirement of law having not been followed, prosecution launched against the accused was defective and his further prosecution was an exercise in futility‑‑‑Proceedings pending against the accused in the Drug Court were quashed in circumstances.

Shuja Ullah v. The State 1994 PCr.LJ 1065 and Aga Nadim and another v. S.H.O., Lohari Gate, Lahore 1998 PCr.LJ 181 ref.

Munir Ahmad Bhatti for Petitioner.

Ch. Muhammad Bashir, A.A.‑G. with M. Aslam for Respondents.

Dates of hearing: 16th and 22nd December, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 790 #

2000 P Cr. L J 857

[Lahore]

Before Tassaduq Hussain Jilani, J

MUHAMMAD WAKEEL‑‑‑Petitioner

versus

THE STATION HOUSE OFFICER, POLICE STATION SADAR, PATTOKI, DISTRICT KASUR and 2 others‑‑‑Respondents

Writ Petition No.8998 of 1999, decided on 16th November, 1999.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑.‑‑Criminal Procedure Code (V of 1898), S.154‑‑‑Constitutiona petition‑‑‑Quashing of F.I.R.‑‑‑Case was registered in November, 1996 ant the matter was still hanging on‑‑‑Effect‑‑‑Petitioner/accused was found guilt during the investigation‑‑‑Petitioner/accused was directed by High Court to move an application under S.249‑A, Cr.P.C. before the Trial Court if the challan had already been submitted which shall be decided by it within one month of its filing‑‑‑Constitutional petition was disposed o1 accordingly.

Shahid Hussain Kadri for Petitioner.

Khurshid Anwar Bhindar, Addl. A.‑G. for Respondents.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 808 #

2000 P Cr. L J 858

[Lahore]

Before Mian Allah Nawaz and Nazir Ahmad Siddiqui, JJ

MUHAMMAD SHAHID alias SHEDI‑‑‑Appellant

versus

STATE‑‑‑Respondent

Criminal Appeal No.97 of 1,998/BWP, decided on 21st July, 1999.

Control of Narcotic Substances Ordinance (XIII of 1996)‑‑‑

‑‑‑‑Ss. 9(c) & 26‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979) Art.3/4‑‑‑Suppression of Terrorist Activities (Special Courts) Act (X of 1975), S.8‑‑‑Appreciation of evidence‑‑‑Burden of proof‑‑‑Prosecution led no evidence in support of its case and relied upon S.26, Control of Narcotic Substances Ordinance, 1996, to maintain that it was the duty of. accused to demolish the case of . prosecution‑‑‑Trial Court convicted accused as he did not lead any evidence‑to disprove recoveries allegedly effected from him‑‑Primary duty of prosecution was to prove its case beyond reasonable doubt and burden of prosecution would not be displaced under the presumption embodied in S.26, Control of Narcotic Substances Ordinance, 1996 which lays down that once prosecution had led evidence in support of its case, it was then that accused would be required to disprove the same‑‑‑Section 26, Control of Narcotic Substances Act, 1996 had not absolved prosecution of its duty to prove its case beyond doubt‑‑:Conviction and sentence awarded to accused by Trial Court were set aside and case was remanded to decide the same afresh accordingly.

Manzoor Ali and others v. State 1995 PCr.LJ 1394; Khawar and others v. The State PLD 1995 Kar: 105; Jabbar Ahmad v. The State 1996 PCr.I.J 1264; Mst. Maqsoodan Bibi v. The State 1997 PCr.LJ 1377; Raghubir Dayal Missir v. Emperor AIR 1941 Pat. 177; 1941 Cr.LJ 42; PLD 1995 Kar. 16 and AIR 1941 Pat. 177 ref.

Muhammad Asif Chohan and Tariq Javed Chohan for Appellant.

Ata Muhammad Khan Baluch for the State.

Date of hearing: 21st July, 1999.

2000 P Cr. L J 902

[Lahore]

Before Faqir Muhammad Khokhar, J

BASHIR AHMED ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal SC (Tribunal)'No.6 of 1998/BWP, decided on 23rd November, 1999:

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

‑‑‑‑Ss. 196 & 537‑‑‑Penal Code (XLV of 1860), Chaps.VI & IX‑A‑‑‑Noncompliance of provisions of S.196, Cr.P.C.‑‑‑Not a curable irregularity‑‑Provision of S.196, Cr.P.C. was couched in the negative language which, unless the context otherwise required, was to be considered to be mandatory in nature and not a directory one‑‑‑Where a mandatory condition for the exercise of jurisdiction was not fulfilled, then the entire proceedings that followed would become coram non judice, illegal and without jurisdiction‑‑Non‑compliance of provisions of S.196, Cr.P.C., therefore, could not be construed to be a curable irregularity within the meaning of S.537, Cr.P.C.

Col. (Retd.) Syed Mukhtar Hussain Shah v. Wasim Sajjad and 30 others PLD 1986 SC 178; Mansab Ali v. Amir and 3 others PLD 1971 SC 124 and Rashid Ahmad v. The State PLD 1972 SC 271 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 295‑A‑‑‑West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S.16‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.12‑‑‑Criminal Procedure Code (V of 1898), S. 196‑‑Non‑compliance of provision of S.196, Cr.P.C.‑‑‑Exercise of jurisdiction by Special Court‑‑‑Special Court of Anti-Terrorism took cognizance of the case, recorded the prosecution evidence, conviction and sentence of the accused without adverting to the aspect of the absence of the requisite sanction/order as required by S.196, Cr.P.C. for an offence under S.295‑A, P.P.C.‑‑‑Validity‑‑‑Entire proceedings by the Trial Court were nullity in the eye of law and were liable to be quashed‑‑Conviction and sentence of accused passed by the Trial Court were set aside.

Labh Singh v. Narinjan Das AIR 1925 Lab. 449; Maj.‑General Fazal‑i‑Raziq, Chairman, WAPDA, Lahore v. Ch. Riaz Ahmad and another PLD 1978 Lah. 1082 and Qaisar Raza v. The State 1979 PCr.LJ 758(2) ref.

Mumtaz Hussain Bazmi for Appellant.

M.A. Frazi for the State..

Date of hearing: 23rd November, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 888 #

2000 P Cr. L J 912

[Lahore]

Before Riaz Kayani, J

Mst. SHAFQAT TAHIRA‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1 of 1999 in Criminal Appeal No.443 of 1998, decided on 15th February, 1999. ‑

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 426(1)‑‑‑Penal Code (XLV of 1860), S.302(b)/34‑‑‑Suspension of sentence‑‑‑Accused was a lady and the role attributed to her in the occurrence was merely of holding the legs of the deceased lady‑‑‑Fatal blows had been given to the deceased by co‑accused‑‑‑Appeal was not likely to be taken up in near future for final hearing‑‑‑Sentence of accused was suspended in circumstances and she was released on bail accordingly.

Latif Bibi v. Abdul Ghafoor 1994 SCMR 1727 ref.

Altaf Ibrahim Qureshi for Petitioner.

Qamar‑ul‑Hassan for the State.

ORDER

Criminal Miscellaneous No. l of 1999.

Learned counsel for the petitioner contends that the petitioner is a lady and her role as described by the prosecution is merely holding of legs of the deceased Mst. Tameezan Bibi who was hacked to death by her co‑accused Sajawal Khan. Learned counsel prays for suspension of sentence awarded to the petitioner alongwith the co‑accused. He has relied on Latif Bibi v. Abdul Ghafoor 1994 SCMR 1727, in which case role of Lalkara and holding of legs was attributed to the convict who was also sentenced to life imprisonment.

Learned counsel for the .petitioner contends that the appeal is not likely to be taken up in near future for final hearing and further the role attributed to the petitioner is merely holding of legs of the deceased lady. The fatal blows were given by Sajawal and that the petitioner being a lady is entitled to the exercise of discretion in her favour.
Learned State Counsel did not oppose the criminal miscellaneous and stated that he has no objection ‑if the sentence of the petitioner is suspended.
Sentence of the petitioner is suspended provided she furnishes security in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court. C.M. stands disposed of.

N.H.Q./S‑409/L Sentence suspended.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 902 #

2000 P Cr. L J 939

[Lahore]

Before Mian Nazir Akhtar and Dr. Munir Ahmad Mughal, JJ

MUHAMMAD ZAMAN‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 12/Q of 1999, heard on 20th December, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 561‑A, 156 & 173‑‑‑Penal Code (XLV of 1860), S.302/34‑‑Submission of supplementary challan and re‑investigation‑‑‑Quashing of order‑‑‑Local Police investigated case registered against accused persons and found accused as real culprits and submitted challan against them‑‑‑Accused, after submission of challan, filed an application for re‑investigation of case by Range Crime‑‑‑Investigating Officer, in re‑investigation found accused innocent and opined that real culprit was a third person who was not named in the F.I.R.‑‑‑Case was again entrusted to Crime Branch, on application of petitioner, which confirmed investigation originally held by local police in which accused persons were held real culprits‑‑‑Pre‑arrest bail application filed by third person who was subsequently, found culprit, was allowed and the accused persons also filed application for grant of bail‑‑‑Trial Court during course of hearing of said bail application, passed order directing S.H.O, to submit supplementary challan against said third person which order had been sought to be quashed‑‑‑After completing investigation challan having already been submitted against accused who originally were found 'real culprits, Trial Court should have proceeded with trial of said accused persons were real culprits‑‑‑Trial Court had no jurisdiction to direct S.H.O. to prepare and submit a supplementary challan against said third person when police had already completed investigation wherein it was found that accused persons were real culprits‑‑‑Trial Court after recording necessary evidence, could advert to question whether said third person be also summoned as an accused or not, but law did not authorise the Trial Court to direct police that supplementary challan be submitted against said third person‑‑‑Order passed by Trial Court was ordered to be quashed in circumstances.

Syed Waqar Hussain Shah v. The State PLD 1988 Lah. 666 and Riaz Hussain and others v. The State 1986 SCMR 1934 ref.

Muhammad Zafar Chaudhry for Petitioner.

Sardar Badar‑e‑Munir Alam for the State.

Date of hearing: 20th December, 1999..

JUDGMENT

MIAN NAZIR AKHTAR, J.‑‑‑ This petition has been filed to challenge order, dated 3‑12‑1998 passed by the learned Special Judge with a direction to the S.H.O. to submit supplementary challan against Sher ‑Muhammad, accused.

Briefly stated the facts giving rise to this petition are that on a report lodged by the petitioner a .criminal case was registered against Khawaja Umar etc. vide F.I.R. No.35, dated 1‑3‑1997 for an offence under section 302/34, ‑Qisas and Diyat Ordinance at Police Station Wanbhanchran, Tehsil and District Mianwali. After investigation the police held that Khawaja Umar and Hakim Khan were the real culprits and submitted challan against them containing report, dated 13‑4‑1997 under section 173 of the Cr.P.C.; that after submission of the challan the accused persons submitted an application for re‑investigation of the case by the Range Crime, Sargodha whereupon the investigation was entrusted to Khalid Bashir, Inspector who held Khawaja Umar and Hakim Ali to be innocent and opined that the offence was committed by Sher Muhammad son of Ata Muhammad who was not named in the F.I.R. that the petitioner made an application before the I.‑G. Police Punjab who‑ entrusted the investigation to Crimes Branch, Lahore which confirmed the investigation originally held by the local police; that Sher Muhammad filed an application for pre‑arrest' bail before the learned Additional Sessions Judge, Mianwali who allowed it vide his order, dated 26‑5‑1998. Thereafter, Khawaja Umar accused also submitted an application for bail after arrest on 27‑10‑1998. During the course of hearing of the said petition the trial Court passed an order on 3‑12‑1998 directing the S.H.O. Police Station Wanbhachran to submit supplementary challan against Sher Muhammad accused. The supplementary challan was submitted in the Court on 14‑1‑1999 (wrongly mentioned as 14‑1‑1998 at the end of the report under section 173 of the Cr.P.C.).
The petitioner's learned counsel strenuously urged that the trial Court had no jurisdiction to direct the S.H.O. to submit supplementary challan against Sher Muhammad accused; that the re‑investigation by the‑, Range Crime, Sargodha was mala fide; that the Investigating Officer (Khalid Bashir, Inspector) was intended to help the real culprits and instead involved a third person in the case who was not named in the F.I.R.; that the impugned order is violative of the provisions of section 173 of the Cr.P.C. and submission of supplementary challan after forwarding the complete challan is totally illegal. In this connection, he placed reliance on the judgment in the case of Syed Waqar Hussain Shah v. The State PLD 1988 Lah. 666.
The learned State Counsel has not been able to controvert the law point urged by the petitioner's learned counsel., 5. There is considerable force in the arguments raised by the petitioner's learned counsel. After completing the investigation, challan had already been submitted against Khawaja Umar and Hakim Ali accused. The trial Court should have proceeded with the trial of the .said accused persons in accordance with the law while hearing the bail petition filed by Sher Muhammad (who was made the real accused in the investigation by Khalid Bashir, Inspector) the triad Court had no jurisdiction to direct the S.H.O. to prepare an4 submit a supplementary challan against Sher Muhammad accused. The local police had already completed the investigation and found that the offence was committed by Khawaja Umar and Hakim Ali accused and submitted final report under section 173 of the Cr.P.C. Thereafter, there was hardly sufficient scope for ordering re‑investigation of the case and the I.‑G., Police, Punjab should not have readily acceded to the request of the accused persons for re‑investigation. Anyhow, the order regarding reinvestigation is not under challenge before us, therefore, we do not propose to interfere in the same at this stage. However, we are clear in our minds that while hearing the bail petition filed by Sher Muhammad accused, the trial Court was not competent to pass an order that supplementary challan be submitted against Sher Muhammad. Such an order was bound to prejudice trial of the accused who had already been challaned. In the case of Syed Waqar Hussain Shah (referred to by the petitioner's learned counsel) the practice of further investigation after submission of complete or incomplete challan by the police was deprecated. The relevant part from the judgment reads as under:‑‑

"Of late it has been observed that after filing incomplete or complete challan in Court the police on one pretext or the other and some time for reasons only known to them start investigating cases registered at police stations, and record findings of innocence of accused, without mentioning the names of the persons on whose evidence the said opinion is based in the challan. Thus, the Court is unable to find whether the opinion of the police was based on sound material or not. This makes the whole exercise of further investigation after filing of complete challan meaningless. It also makes the prosecution case doubtful which results it acquittal of the accused even in serious cases of the nature of one in hand. The Court is not bound by police opinion. It has to decide each case on merits on the basis of evidence recorded during trial. As such subsequent investigation after filing of complete challan is always uncalled for, unnecessary and must be avoided. It in fact does nor advance and rather retards the course of justice."

In the light of the above view, the Court declared the proceedings of filing o? supplementary challan after filing of complete challan and the consequence discharge orders as being wholly illegal and without jurisdiction. The systenm of re‑investigation was disapproved by the Honourable Supreme Court of Pakistan in the case of Riaz Hussain and others v. The State 1986 SCMR 1934. The relevant part from the judgment is reproduced below for ready reference:‑‑

"The system of re‑investigation in criminal cases is a recent innovation which is always taken up at the instance of influential people and favourable reports obtained. This in no way assists the Courts in coming to a correct conclusion, it rather creates more complications to the Court administering justice. We, therefore, disapprove this system altogether. "

In the present case also the feeling is irresistible that the accused persons wielded influence and managed to obtain an order for reinvestigation from the I.‑G., Police, Punjab. It was not open to the trial Court to put its seal of approval on an apparently uncalled for act done by the police. The Court should have proceeded with the trial of the accused against whom challan' had been submitted by the police earlier. During the course of the trial the result of re‑investigation could have been submitted before the Court by the police .of its own accord and then any party could have taken advantage of the same in any manner permissible under the law. In the absence of any move made by the parties before the Court, the Court could summon the Investigating Officer (Khalid Bashir, Inspector) as a Court‑witness and determine its effect on the case before it, in accordance with the law. After recording the necessary evidence the trial Court could advert to the question whether Sher Muhammad be also summoned as an accused or not. However, the law does not authorize the Court to direct the police that supplementary challan be submitted against the third person.
For the foregoing discussion, the petition is accepted and the impugned order, dated 3‑12‑1998 passed by the trial Court and the consequent submission of supplementary challan, dated 14‑1‑1999 (wrongly mentioned as 14‑1‑1998) are declared to be without jurisdiction and a nullity in the eye of law.

H.B.T./M-24/L Petition accepted.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 912 #

2000 P Cr. L J 955

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD KHALID‑‑‑Petitioner

versus

S.H.O. and others‑‑‑Respondents

Criminal Miscellaneous No.234/H of 2000, decided on 2nd March, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 365/342 & 109‑‑‑Criminal Procedure Code (V of 1898), S.491‑‑Habeas corpus petition ‑‑‑Detenu was taken into custody by Assistant Sub-Inspector of Police from his house and was detained in illegal confinement for eight days without any basis, case, F.I.R. or other material ‑‑‑Detehu was not produced before any Magistrate and no report was entered in daily Register of Police Station‑‑‑No "Hukainnama Talbi" about arrest of detenu was shown to bailiff or produced before the Court‑‑‑Such conduct of police officials amounted to commission of offence under 5.365/342/109, P.P.C.‑‑Case against concerned police officials was ordered to be registered accordingly‑‑‑Case under S.109, P.P.C. was also ordered to be registered against S.H.O. who being incharge of police station had failed to perform his obligation to see whether any innocent person was detained in his police station.

Sardar Abdul Majeed Dogar for Petitioner.

ORDER

Statement of the detenu has been recorded. According to his statement, he was taken into custody by Muhammad Shafi, A.S.‑I. from his house, thereafter, he was detained in illegal confinement for eight days without any basis, case, F.I.R. or any other legal material. He was never produced before any learned Magistrate. No report was entered in the daily diary register of the Police Station, no "Hukamnama Talbi" was also shown to the bailiff or produced before this Court about the arrest of the detenu. This conduct of the police officials amounts to commission of offence under section 365/342/109, P.P.C. Let a case, therefore, be registered against Mushtaq Elahi, S.‑I., Muhammad Shafi, A.S.‑I., Gulzar and Abbas F.CE. and against Muhammad Saleem (complainant) under section 109, P.P.C Ghulam Abbas, S.‑I./S.H.O., Police Station Jhang Bazar, he being incharge of the police station had failed to perform his legal obligation to see whether any innocent person was detained or not in his police station arid in this way he is also guilty of offence under section 109, P.P.C. S.‑I./S.H.O. submits that he has 30 years of service then he should be more careful. All the police officials alongwith Muhammad Saleem complainant shall be taken into custody and the bailiff of this Court is directed to accompany them and produce them before S.S.P., Faisalabad, who would register a case against them on the statement of the detenu. Investigation of the case would be conducted by a gazetted and honest Police Officer with the rank of D.S.P. and report should be submitted to D.R. (Judi.) of this Court within three weeks after receiving the order of this Court. Since the detenu is not required or involved in any case, he is set at liberty and he can go wherever he likes. Security amount be returned to the petitioner.

Order of this Court should also be sent to D.I.‑G., Faisalabad, who would look into the matter personally and also send a report to D.R. (Judi.) of this Court within three weeks. Bailiff of this Court is directed to produce the copy of the habeas corpus petition, affidavits, interim order passed by this Court yesterday, statement of the detenu recorded by this. Court today, report of the bailiff and final order passed by this Court today.
With these observations, this petition stands disposed of.

H.B.T./M‑86/L Order accordingly.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 939 #

2000 P Cr. L J 992

[Lahore]

Before Khawaja Muhammad Sharif, J

SAQIB ALI and another‑‑‑petitioners

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.904/B of 2000, decided on 22nd February, 2000.

(a) Criminal Procedure Code (V of 1898)‑‑‑ .

‑‑‑‑Ss. 497 & 498‑‑‑Penal Code (XLV of 1860), S.302/109/148/149‑‑‑Bail before arrest, grant of‑‑‑Allegation against accused was that he, alongwith the co‑accused, pulled down deceased from car and thereafter another co-accused fired a shot which hit on back of deceased ‑‑‑Post‑mortem examination report showed that injury with fire‑arm was present on the back of the deceased‑‑‑Accused had been found guilty,,‑by the police‑‑‑Offence against accused falling within prohibitory clause of S.497(1), Cr.P.C., no ground existed for grant of pre‑arrest bail to accused.

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

‑‑‑‑Ss. 497 & 498‑‑‑Bail before arrest and bail after arrest, grant of‑‑Considerations for grant of bail in both the cases are different.

Aazar Latif Khan for Petitioners.

Qazi Zafar Iqbal for the State.

ORDER

This is an application for bail before arrest on behalf of Saqib Ali son of Asghar Ali and Mubashar Ali son of Malik Manzoor accused in case F.I.R. No.133 of 1999 under sections 302/109/148 and 149, P.P.C. registered with Police Station Chung, Lahore on 2‑6‑1999, for the murder of Muhammad Safdar.

Allegations against the petitioners are that they while armed with fire‑arms committed the murder of Muhammad Safdar at the behest of seven (7) nominated accused.
Learned counsel for petitioners submit that there is only one firearm injury on the person of the deceased and for one injury seven (7) persons have been involved falsely. Further submits that 7 accused persons of abetment were found innocent by the police and were also granted bail after arrest and even had been discharged. Adds that in three investigations, police came to the conclusion that though the petitioners were present at the spot but they did not cause any injury to the deceased, it was one Khadim Hussain who had caused death of the deceased. Further adds that case F. I. R. No. 132 of 1999 was registered against the complainant party for the murder of Muhammad Aslam and the near relatives of Aslam were making hue and cry for arrest of the accused and when they saw Safdar deceased a close relative of accused in case F. I. R. No. 132, Khadim Hussain fired a shot which hit the deceased. Learned counsel for the petitioners submits that case against the petitioners is totally false one and with mala fide intention it has been registered by the police at the instance of the complainant party‑. Learned counsel has relied on PLJ 1996 SC 280, 1997 PCr.1J 1074 and 1570.
Learned counsel for the State submits that petitioners are named in the F.I.R. with specific roles; they have been found guilty during the investigation by the police and that the offence falls within the prohibitory clause of section 497(1), Cr.P.C.
I have heard learned counsel for parties. Allegation against Saqib Ali, petitioner No.1; is that he altogwith Khadim pulled down the deceased from the car and thereafter Mubashar petitioner No.2 fired a shot which hit on the back of the deceased. According to the post‑mortem examination report produced by the S.H.O., injury is present on the back of the deceased with fire‑arm.` Consideration for the grant of bail before arrest and bail after arrest are totally different. Petitioners have been found guilty by the police. Offence falls within the prohibitory clause of section 497(1), Cr.P.C. No' ground for grant of pre‑arrest bail. Dismissed.

H. B. T./S‑19/L Application dismissed.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 955 #

2000 P Cr. L J 1002

[Lahore]

Before Malik Muhammad Qayyum and Ghulam Mahmood Qureshi, JJ

OMARI KHOJA‑‑‑Petitioner

versus

THE STATE and 2 others‑‑‑Respondents

Criminal Miscellaneous Applications Nos. 3/Q, 4/Q, 7/Q. to 9/Q, 11/Q to 13/Q, 21/Q to 23/Q, 29/Q, 32/Q and 33/Q of 2000, 249/Q of 1999, heard on. 1st February, 2000.

Control of Narcotic Substances (XXV of 1997)‑‑‑

‑‑‑‑S. 6/9‑‑‑Customs Act (IV of 1969), S.156(1)(8)‑‑‑Constitution of Pakistan (1973), Art.13‑‑‑General Clauses Act (X of 1897), S.26‑‑‑Criminal Procedure Code (V of 1898), Ss.403 & 561‑A‑‑‑Quashing of proceedings‑‑Plea of double jeopardy‑‑‑Trial of accused under Control of Narcotic Substances Act, 1997 after their trial under the Customs Act, 1969‑‑Validity‑‑‑Point in issue was as to whether a person who had been tried by the Special Judge, Customs and either acquitted or convicted for smuggling or being in possession of narcotics could be tried for the second time by the Special Judge under the Control of Narcotic Substances Ordinance, 1996‑‑. Held, the offence of smuggling and carrying of narcotics being one and the same, the second trial .was barred in view of Art. 13 of the Constitution, S.26 of the General Clauses Act, 1897 and S.403 of Criminal Procedure Code, 1898‑‑‑Cases pending against the accused were quashed accordingly.

Criminal Miscellaneous No. 135/Q of 1999; Mark Mifsud Mrs. Rosemarie Morley v. Investigating Officer, Customs, Karachi and 2 others PLD 1999 Kar. 336; State v. Anwar Khattak and others PLD 1990 FSC 62; Jonathan Newhouse v. The State and another 1994 PCr.LJ 1433; State of Bombay v. S.L. Apte (1968) 3 SCR 107 and Om Parkash Gupta v. State of U.P. AIR 1957 SC 458 ref.

Aftab Ahmad Bajwa for Petitioner. A. Karim Malik and A. H. Masood for the State.

Date of hearing: 1st February, 2000.

JUDGMENT

MALIK MUHAMMAD QAYYUM, J.‑‑‑ This judgment shall dispose of Criminal Miscellaneous Nos.3/Q of 2000, 249/Q of 1999, 4/Q of 2000, 7/Q of 2000, 8/Q of 2000, 9/Q of 2000, 11/Q of 2000, 12/Q of 2000, 13/Q of 2000, 21/Q of 2000, 22/Q of 2000, 23/Q of 2000, 29/Q of 2000, 32/0 of 2000 and 33/Q of 2000 in which common question of law arises for determination.

The point in issue in all these cases is as to whether a person who has been tried by the Special Judge, 'Customs and either acquitted or convicted for smuggling or being in possession of narcotics can be tried for the second time by the Special Judge under Control of Narcotics Substances Ordinance, 1996. .
This question came up for consideration before us in Criminal Miscellaneous No.135/Q of 1999 wherein after exhaustive review of the case‑law on the subject it was held that in view of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 as also section 26 of the General Clauses Act and section 403 of Code of Criminal Procedure the second trial was barred. It was also observed that in such cases the offence is one and the same which is smuggling and carrying of narcotics. In that case we had inter alia relied upon the judgment of Sindh High Court in Mark Mifsud Mrs. Rosemarie Morley v. Investigating Officer Customs Karachi and 2 others PLD 1999 Kar. 336, State v. Anwar Khattak and others PLD 1990 FSC 62 and Jonathan Newhouse v. The State and another 1994 PCr.LJ 1433 as also two judgments of the Indian Supreme Court reported as State of Bombay v. S.L. Apte (1968) 3 SCR 107 and Om Parkash Gupta v. State of U.P. AIR 1957 SC 458.
Mr. A. Karim Malik, learned counsel appearing on behalf of the respondents, however, stated that in some other cases a Division Bench of this Court has referred the matter to the Honourable Chief Justice for forming larger Bench. However, neither number of that case was given by the learned counsel nor was any order of the Division Bench produced before us. Be that as it may, we are bound by our own judgment and have to follow the same. It may also be pointed out that the learned counsel for the petitioners has submitted that against our judgment in Criminal Miscellaneous No.135/Q of 1999 the respondents have also gone to the Supreme Court. In this view of the matter the consideration of the same question by a larger Benchmould be an exercise in futility.

In view of what has been stated above, we allow all these petitions and quash the cases pending against the petitioners in the Court of Special) Judge, Narcotics, Lahore/Sessions Judge, Lahore.

N.H.Q./O‑1/L Cases quashed.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 992 #

2000 P Cr. L J 1016

[Lahore]

Before Khawaja Muhammad Sharif, J

THE STATE---Appellant

versus

MUHAMMAD ASLAM, INSPECTOR---Respondent

Criminal Original No.7 of 2000, decided on 28th February, 2000.

(a) Contempt of Court Act (LXIV of 1976)---

----S. 4---Constitution of Pakistan (1973), Art.204---Criminal Procedure Code (V, of 1898), S.491---Contempt of Court ---Habeas corpus proceedings---S.H.O. of police station where raid was conducted by bailiff in habeas corpus proceedings, had depicted extreme highhandedness towards bailiff of Court and resorted to threats as well as intimidatory behaviour to bailiff during habeas corpus proceedings---Said police official practically and physically detained bailiff for four hours in reporting room of police station and also passed certain derogatory remarks towards the Court during raid conducted by bailiff---Police official did not contest show-cause notice issued to him, but asked for unconditional apology and put himself at mercy of Court with explanation that he had thirty-nine years' police service to his credit---Official had acted in a manner which amounted to bringing authority of Court into disrespect and disrepute and obstructing process of the Court---Bailiff when deputed to recover a detenu while exercising powers under S.491, Cr.P.C. or under Art.199 of Constitution of Pakistan (1973), acted as a representative of High Court---Contempt of Court committed by police official could not be treated lightly despite his long service of thirty-nine years---Said official after such a long service should have been more careful instead of what he had done---High Court taking lenient view of the matter sentenced the official to one month and a fine of Rs.5,000.

(b) Contempt of Court Act (LXIV of 1976)---

----S. 4---Constitution of Pakistan (1973), Art.204---Contempt of Court--Purpose of contempt proceedings---Unconditional apology as defence to charge of contempt of Court---Purpose of contempt proceedings was not to wreck vengeance, but to vindicate honour of Court so as to keep public confidence on superior Courts undiminished and to keep function of justice free from pollution and obstruction---Unconditional apology was not a defence to charge of contempt of Court ---Contemner could not claim acquittal or discharge of notice of contempt as a matter of right on the strength of unqualified apology and such apology would not ipso facto purge the offence.

Muhammad Hanif Khatana, Addl. A,-G.

Azhar Sheikh for the Contemner.

Mian Muhammad Sikandar Hayat, Advocate.

ORDER

Brief facts of this case are that Muhammad Afzal filed Criminal Miscellaneous No.2045/H of 1999 for the recovery of one Riasat Ali son of Nawab Khan from the custody of S.H.O., Police Station City, Sargodha. The petition came up for hearing before my learned brother Asif Saeed Khan Khosa, J. who was pleased to depute a bailiff to recover the said Riasat Ali from the custody of respondent/S.H.O., Police Station City Sargodha and to produce the detenu Riasat on 28-12-1999. On the said date, the bailiff submitted his report. According to report of the bailiff, the detenu was not .found within the premises of the police station but the bedding of the said person was found in the police station and the other persons arrested/detained at the said police station had confirmed the fact that Riasat Ali detenu had in fact been detained at the said police station and was made to disappear therefrom only two (2) hours before the, raid conducted by the bailiff. The report further showed that during the proceedings of the raid, Muhammad Aslam, Inspector, S.H.O. (respondent No.1 herein) had depicted extreme highhandedness towards the bailiff of this Court and had resorted to threats as well as intimidating behaviour towards the bailiff. It was further submitted in the report that respondent No. l had practically and physically detained the bailiff of this Court in the Reporting Room of the said police station and that certain derogatory remarks towards this Court were also passed by respondent/S.H.O. during the raid conducted by the bailiff.

Respondent/S.H.O. also appeared before the Court on 28-12-1999 and categorically denied that Riasat Ali detenu was ever arrested by him and that the allegations levelled by the bailiff in his report were factually unfounded.
The habeas petition was accordingly disposed of with the observation that the petitioner may approach this Court again with a fresh application, if and when he comes to know of the present place of custody of the detenu. However, in view of the seriousness of the allegations levelled by the bailiff against respondent/S.H.O. the S.S.P., Sargodha was directed to hold inquiry into the allegations and to. submit the report within next two weeks. The matter was ordered to be relisted on 17-1-2000 to see the result of inquiry conducted by the S.S.P., Sargodha. On the said date, that is, 17-1-2000, neither any report was submitted nor anyone appeared on behalf of the S.S.P. and the learned A.A.-G. undertook to inform the S.S.P. about the passing of the order, dated 28-12-1999. It was also observed in the order, dated 17-1-2000 that as pointed out by the learned A.A.-G. the facts of this case had a direct nexus with the case titled Yara v. S.H.O. Criminal Miscellaneous No. 1749/11 of 1999 which was decided by me on 27-10-1999, office was directed to obtain the necessary orders from the Honourable Chief Justice for hearing of this matter by me. The matter was then fixed before me by order of the Honourable Chief Justice on 27-1-2000 when only Mr. Muhammad Hanif Khatana, Additional Advocate-General appeared who was directed to make a telephonic call to S.S.P., Sargodha to appear in this Court alongwith report on 28-1-2000 with further direction to issue notice to Muhammad Aslam, Inspector, respondent No. l to also appear. On 28-1-2000 S.S.P., Sargodha appeared in the Court and explained that earlier he could not record statement of the bailiff and be given time to do the needful. Statement of the bailiff was recorded in which he reiterated his earlier report, dated 28-12-1999, and then the case was taken up in the later part of the day on the, same day. A show-cause notice for contempt of Court was issued to Muhammad Aslam, Inspector, respondent No.1 with direction to the S.S.P., Sargodha to ask his subordinate A.S.P. to submit his inquiry report. Muhammad Aslam, Inspector, respondent/S.H.O. was also asked to arrange for\his representation. Reply to the show-cause notice was filed by Muhammad Aslam, Inspector on 15-2-2000. Inquiry report was also filed by A.S.P. Mr. Azhar Sheikh, Advocate filed his power of attorney on behalf of Muhammad Aslam, Inspector, contemner and requested for time on the ground of being engaged on the last night. Today, Mian Muhammad Sikandar Hayat, Advocate has also filed his power of attorney and requested for adjournment which was granted till 10 a.m. today as the matter was hanging for the last two months.
At the very outset, learned counsel for respondent No. l Muhammad Aslam, Inspector submits that he does not want to contest the notice on merits but asks for apology. Muhammad Aslam, Inspector, respondent No. l who is present in person also tenders unconditional apology and puts himself at the mercy of the Court, with the explanation that he has 39 years police service to his credit.
I have gone through the report submitted by A.S.P., Sargodha, report of the bailiff and the reply to the show-cause notice submitted by respondent No. 1. Although Muhammad Aslam, Inspector, respondent S.H.O. has tendered unconditional apology yet the fact remains that he acted in a manner which amounts to bringing the authority of the Court into disrespect and disrepute and obstructing process of the Court. A bailiff when deputed to recover a detenu while exercising powers under section 491, Cr.P.C. or under Article 199 of the Constitution of Islamic Republic of Pakistan acts as a representative of the High Court. The report submitted by the bailiff in this case cannot be disbelieved. Respondent has 39 years of service to his credit but the mere fact of long service, in the nature of contempt he has committed, cannot be treated lightly and rather after such a long service, respondent should have been more careful instead what he has done in the instant case. It may be observed that unconditional apology is not a defence to the charge of contempt of Court and when ever indulgence is shown that is by way of grace and concession. The contemner cannot claim acquittal or discharge of notice as a matter of right on the strength of unqualified apology and such an apology does not ipso facto purge the offence. The accused by detaining the bailiff for four (4) hours in the Reporting Room of the police station has committed naked and unprecedented contempt of Court. The purpose of contempt proceedings is not to wreck vengeance but to vindicate the honour of this Court so as to keep public confidence on superior Courts undiminished and to keep the fountain of justice free from pollution and obstruction.

Keeping in view the facts as mentioned above, I still take a lenient view of the matter by invoking the powers under section 4 of the Contempt of Court Act, 1976 read with Article 204 of the Constitution of Islamic Republic of Pakistan sentence Muhammad Aslam, Inspector, contemner to one (1) month's S.I. and a fine of Rs.5,000 or in default thereof further S.I. for one (1) month. He is present in Court. He shall be taken into custody to undergo the term of sentence.

H.B.TJS-20/L Order accordingly.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1002 #

2000 P Cr. L J 1022

[Lahore]

Before Muhammad Naseem Chaudhri, J

FIDA HUSSAIN ‑‑‑Petitioner

versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No.258 of 1997, heard on 21st February, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 514, 86 & 439‑‑‑Penal Code (XLV of 1860), S.307/406/420/ 506/34‑‑‑Forfeiture of bond by the Court granting interim relief of bail and not by the Trial Court‑‑‑Validity‑‑‑Sessions Court at Gujranwala (Punjab) after the grant of interim relief of bail to the accused under S.86, Cr.P.C. had become functus officio and could not proceed further due to the absence of accused on the fixed date before the Sessions Court at Dadu (Sindh) which was the Trial Court and where the accused had undertaken to appear‑‑‑Bail of accused could not be cancelled by Sessions Court, Gujranwala (Punjab) which could be cancelled by the Sessions Court, Dadu (Sindh) and which could proceed under S.514, Cr.P.C.‑‑‑Impugned order passed by Sessions Court, Gujranwala under S.514, Cr.P.C. directing the petitioner (surety) to deposit the surety amount of Rs.1,00,000 due to non‑appearance . of the accused before the Trial Court at Dadu (Sindh) was, therefore, without jurisdiction, coram non judice and inoperative and the same was set aside accordingly.

Pir S.A. Rashid for Petitioner.

Ms. Roshan Ara, Asstt. A.‑G. for the State.

Abrar Hussain for Respondent No.2.

Date of hearing: 21st February, 2000.

JUDGMENT

Abdul Sattar respondent No. 2 instituted a criminal complaint for the prosecution of Muhammad Saleem son of Muhammad Ali caste Gondal resident of 339‑A, Model Town, Gujranwala under section 307/406/420/ 506/34, Pakistan Penal Code, in the Court of the learned III Additional Sessions Judge, Dadu (Sindh). Muhammad Saleem accused was summoned by the said learned Court who did not appear and his non‑bailable warrants of arrest were issued. Muhammad Saleem was arrested in Gujranwala (Punjab) on 1‑1‑1997 who was lodged in the Central Jail, Gujranwala for onwards transmission and production before the aforesaid learned Court at Dadu (Sindh) on 11‑1‑1997, being the next date of hearing. In terms of proviso II to subsection (1) of section 86 of the Code of Criminal Procedure Muhammad Saleem made an application before the learned Court of Session at Gujranwala for, his admission to interim bail after arrest which was granted on 4‑1‑1997 by a learned Additional Sessions Judge. He was admitted to interim bail subject to his furnishing bail bond in the sum of Rs.1,00;000 (Rupees one lac only) with one surety in the like amount to the satisfaction of the learned Additional Sessions Judge, Gujranwala and the undertaking of his appearance before the. learned trial Court at Dadu (Sindh) on 11‑1‑1997. Fida Hussain petitioner of this Criminal Revision No.258 of 1997 stood surety for the aforesaid Muhammad Saleem accused. He executed the bail bond and the undertaking before the learned Additional Sessions Judge, Gujranwala. Muhammad Saleem accused of the case was released on interim bail from the Central Jail, Gujranwala. On 11‑1‑1997 Muhammad .Saleem accused did not appear before the learned III Additional Sessions Judge, Dadu (Sindh).

On 28‑1‑1997 Abdul Sattar complainant of the case before the learned trial Court at Dadu (Sindh) made an application before the learned Additional Sessions Judge, Gujranwala (Punjab) for initiating the proceedings under section 514 of the Code of Criminal Procedure against Fida Hussain surety on the ground that Muhammad Saleem accused did not appear before the learned trial Court at Dadu on 11‑1‑1997 who (surety) was criminally liable thereof. The learned Additional Sessions Judge took cognizance of the matter and issued the notice. Fida Hussain petitioner filed the reply wherein he took up the stand that Muhammad Saleem accused went to the learned trial Court at Dadu where the learned Presiding Officer was availing the casual leave. He contended that he had not procured any material gain from the accused.
The learned Additional Sessions Judge, Gujranwala (Punjab), held that Fida Hussain surety was liable due to the non‑appearance of the said accused‑ before the learned trial Court on 11‑1‑1997 and in the proceedings under section 514 of the Code of Criminal Procedure directed him to deposit the aforesaid amount of surety in the sum of Rs.1,00,000 (Rupees one lac only) in the Court within one month.
Feeling aggrieved Fida Hussain has filed this Criminal Revision petition with the assertion that he was not factually and legally liable in the matter due to the absence of the learned Presiding Officer at Dadu on‑ 11‑1‑1997 and that even the learned Additional Sessions Judge, Gujranwala (Punjab) could not proceed against him under section 514 of the Code of Criminal Procedure because the accused was not to be tried by him. This petition has been resisted by the respondents. .
I have heard the learned counsel for the parties as well as the learned A.A.‑G. and gone through the record before me. The main contention of the learned counsel for the petitioner is that in terms of proviso II to subsection (1) of section 86 of the Code of Criminal Procedure the learned Additional Sessions Court, Gujranwala was bound to forward the bond to the learned Court at Dadu and it is enough to make out that under section 514 of the Code of Criminal Procedure the proceedings were to be conducted at Dadu by the learned trial Court, obviously after cancellation of the bail. He maintained that, after the disposal of the application for interim bail at Gujranwala on 4‑1‑1997 the learned Additional Sessions Judge had become functus officio. On the contrary the learned Assistant Advocate‑General and the learned counsel for Abdul Sattar respondent laid the emphasis that the order about interim bail was passed by the learned Additional Sessions Judge, Gujranwala (Punjab) before whom the bail bond was submitted and due to the non‑appearance of Muhammad Saleem at Dadu the proceedings could be conducted at Gujranwala.
I hold the view that the reasoning adopted by the learned counsel for the petitioner has to prevail. With respect to submission of bail bond and surety bond following legal and technical steps are taken on the basis of the order of the Court of competent jurisdiction and the legal line of action is chosen and adopted in case of absence of the accused enjoying the concession of bail:‑‑

(a) An accused may be admitted to bail of any category i.e. bail before arrest or post‑arrest bail by the High Court to the satisfaction of the Registrar, Additional Registrar (Judicial), Deputy Registrar (Judicial) or any other Officer working thereof. The bonds are sent to the Court of Session or the Area Magistrate having jurisdiction to try the accused before whom he is directed to appear. In case of absence of the accused released on bail after compliance and performance of Codal formalities, the proceedings under section 514 of the Code of Criminal Procedure are to be initiated by the Court competent to summon the accused and hold the trial and not by the High Court.'

(b) The accused may be admitted to bail by the High Court to the satisfaction of the Court of Session or the Area Magistrate, as the case may be. The accused has to appear before the Court competent to summon him for trial or before whom he has been directed to appear. In case of his failure to appear the relevant Court competent in the matter has to initiate the proceedings under section 514 of .the Code of Criminal Procedure and not by the High Court.

(c) If the Court of Session admits any accused to bail to its satisfaction or to the, satisfaction of Ilaqa/Duty Magistrate, in .case of his absence, the Court competent to summon him who obviously is the trial Court can proceed under section 514 of the Code of Criminal Procedure.

(d) If the Ilaqa Magistrate admits any accused ,to bail who fails to appear on the fixed date, the same Court can proceed under section 514 of the Code of Criminal Procedure.

It has to be recorded that under the proviso II to subsection (1) of section 86 of the Code of Criminal Procedure an accused can be admitted to interim post‑arrest bail by the Sessions Judge of the Sessions Division in which the person is arrested, to its satisfaction or to the satisfaction of any subordinate Court making bound the accused to appear before the Court of law in other district of the same Province or any Court of other District of other Province. The point for consideration is as to which Court shall proceed under section 514 of the Code of Criminal Procedure i.e. the Court granting the interim relief or the trial Court where the accused was made bound to appear. My answer is that the trial Court of the other District can proceed under section 514 of the Code of Criminal Procedure. The reason is that with the grant of the interim relief of bail the Court becomes functus officio and cannot proceed further due to the absence of accused on the fixed date before the trial Court. The bail could not be cancelled by this Court at Gujranwala which could be cancelled by that Court at Dadu (Sindh) and, thus, could proceed further under section 514 of the Code of Criminal Procedure. I would express here that the Court granting the interim relief has to send a covering letter alongwith a certified copy of the relevant order and the bail bond/surety bond to the trial Court intimating about the passing of order, compliance and execution. Thus, the trial Court can proceed under section 514 of the Code of Criminal Procedure. It is known to all us that the High Court and the Court of Session, if not the trial Court or appellate Court, due to absence of the accused/appellant admitted to bail do not initiate the proceedings under section 514, Cr.P.C.
In the instant matter the bail bond/surety bond remained under the custody. of the learned Additional Sessions Judge, Gujranwala who did send the same to the learned Additional Sessions Judge,, Dadu (Sindh) in terms of proviso II to subsection (1) of section 86 of the Code of Criminal Procedure, thus, seems to have got the impression of his jurisdiction to proceed under section 514 of the Code of Criminal Procedure.
No doubt before the learned Additional Sessions Judge, Gujranwala, Fida Hussain petitioner (surety) did not take up the stand of his territorial and substantive jurisdiction, yet the legal aspect and the position is that the law can be set in motion if the substantive/procedural/territorial jurisdiction is available to a Court/Authority which in the instant case is lacking so far as the proceedings before the learned Additional Sessions Judge, Gujranwala are concerned. An order without jurisdiction is a nullity in the eyes of law. Had the learned Additional Sessions Judge, Gujranwala sent the papers to the learned trial Court at Dadu (Sindh) the present occasion/episode had not arisen. Legally the said learned trial Court could cancel the interim bail and initiate the proceedings under section 514 of the Code of Criminal Procedure. The only irresistible conclusion which can be drawn from the aforesaid state of affairs, discussion, and reasoning is that the impugned order, dated 30‑4‑1997 passed by the learned Additional ‑Sessions Judge, Gujranwala is without jurisdiction and, thus, coram non judice and inoperative.
For what has been said above, I accept this revision petition, set aside the impugned order, dated 30‑4‑1997 and dismiss the application filed by Abdul Sattar respondent No.2 against Fida Hussain petitioner before the learned Additional Sessions Judge, Gujranwala (Punjab) for initiating the proceedings under section 514 of the Code of Criminal Procedure.
However, the complainant of the case may move the learned trial Court for proceeding in the matter in accordance with law. For the proper disposal of the matter, keeping in view the procedural law contained under section 86, Cr.P.C. the learned Sessions Judge, Gujranwala shall make it convenient to send the bail bond/surety bond to the learned Sessions Judge, Dadu (Sindh).

N.H.Q./F‑5/L Revision petition accepted

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1016 #

2000 P Cr. L J 1027

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD ASHIQ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.91/J and 925 of 1999, heard on 22nd February, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/364‑‑‑Appreciation of evidence ‑‑‑F.I.R. was lodged After about seven days when dead‑.body of deceased was recovered‑‑‑Such inordinate delay in lodging F.I.R. cast doubt on prosecution ‑story‑‑‑Out of three witnesses of last seen evidence, two were close relatives of deceased and third one who was not relative of deceased was not produced and no other independent witness of last seen evidence had been produced by prosecution‑‑‑Extra judicial confession of accused furnished by two close relatives of deceased being joint one, was not admissible in evidence especially when it was not plausible‑‑‑Recovery of offensive weapon was made in violation of 5.103, Cr.P.C.‑‑‑Report of doctor who conducted postmortem examination of deceased showed that face of deceased could not be recognizable=‑‑Identification' of dead body of deceased and to say with certainty that it was dead body of the deceased especially when accused had not led to recovery of dead body was very difficult ‑‑‑Tractor‑trolly allegedly belonging to deceased was never recovered on pointation of accused‑‑‑Case against accused being only of circumstantial evidence, Court had to see that chains of circumstantial evidence were linked in such a manner that it should lead accused to the gallows which were not available in the case‑‑Prosecution having failed to prove its case beyond any shadow of doubt, against accused, conviction and sentence awarded to accused by Trial Court, were set aside, in circumstances.

Kh. Muhammad Iqbal Butt for Appellant (on State expenses).

Masood Sadiq Mirza for the State.

Date of hearing: 22nd February, 2000.

JUDGMENT

This judgment. will dispose of Criminal Appeal No.91/J of 1999 filed by Lal Din, appellant and Criminal Appeal No.92/J of 1999 filed by Muhammad Ashiq, appellant through jail, who were convicted and sentenced by learned Additional Sessions Judge, Lahore vide his judgment, dated 31‑3‑1999 for the murder of Liaqat Ali to undergo life imprisonment under section 364/302, P.P.C. and also to pay a fine of Rs.10,000 each and in default six months' R.I. under section 364, P.P.C. Sentences were ordered to run concurrently with the benefit of section 382‑B, Cr.P.C.

Occurrence in the instant case had taken place at 9 p.m. on 27‑4‑1998 in Sharifpura within the territorial jurisdiction of Police Station Manawan, District Lahore at a distance of 7 miles away from police station while the matter was reported by Mubarik Ali (P.W.1) to the police at 6‑00 p.m. on 5‑5‑1998 through complaint Exh.P.A. and the formal F.I.R. Exh.P.A./1 was recorded by Muhammad Haroon, S.‑I. (P.W.8) on the same day at 6‑30 p.m.

Briefly stated facts of the case were that at about 9 p.m. on 27‑4‑1998, Muhammad Younas, maternal‑uncle and one Siraj Din were present in the house of complainant Mubarik Ali (P.W.1) when Muhammad Ashiq and Lal Din, appellants, came to Liaqat Ali who had a tractor‑trolly bearing registration No. SGA/5997 to earn his livelihood. Both Ashiq and Lal Din wanted to engage the services of said Liaqat Ali to bring some goods from Faislabad on his tractor‑trolly for which it was settled that besides diesel to be provided by the appellants, a sum of Rs.1,000 would also be paid. Upon this, Liaqat, deceased, left with the two appellants on tractortrolly in their presence but after passing of many days when Liaqat did not return back, complainant felt suspicion and went in search of Liaqat Ali and contacted both the appellants at their houses. It was revealed that they had returned from Faisalabad, but Liaqat Ali brother of the complainant had not come back. The complainant was, therefore, of the view that both the appellants in furtherance of their common intention had abducted Liaqat Ali with tractor‑trolly to murder him.
After registration of the formal F.I.R., Muhammad Hanif, A.S.‑I. (P.W.14) proceeded to the place from where the deceased alongwith trollytractor was reported to have been abducted by the appellants, prepared the rough site plan Exh.P.G.; also recorded statements of Younas and Siraj; thereafter proceeded to Faisalabad; took into possession tractor‑trolly P.3 and P.4 bearing registration No.SGA/5997 vide memo. Exh.P.E. and thereafter, got the dead body recovered out of the canal; prepared the injury statement Exh.P.J. and inquest report Exh.P.K. On 14‑5‑1998 Muhammad Hanif, A.S.‑I. met an accident and the investigation was taken over by Tahir Hussain, A.S. ‑I. (P.W.15). He arrested both the appellants on 26‑5‑1998 and while in police custody on 30‑5‑1998 both the appellants led to the recovery of iron Phatti P.1 which was taken into possession vide memo. Exh.P.B./1. After completion of the investigation, both the appellants were challaned to face the trial.
Prosecution in order to prove its case produced 15 witnesses in all out of whom Mubarik Ali (P.W.1) Muhammad Younas (P.W.2) were the eye‑witnesses while the doctor who conducted post‑mortem examination on the dead body of the deceased was examined as P.W.7. Report of the Chemical Examiner is Exh.P.R. Thereafter, statements of the appellants were recorded under section ?4 2., Cr.P.C. They also produced 3 D.Ws. in their defence and both the appellants also made statements under section 340(2), Cr.P.C. Both the appellants after conclusion of the trial were convicted and sentenced as stated above.
Learned counsel for the appellants has read before me the prosecution evidence, statements of the appellants under sections 342 and 340(2), Cr.P.C. and submits that there is delay of 8 days in lodging the F.I.R.; tractor‑trolly was never recovered on the pointation of the appellants; story of extra‑judicial confession is incorrect for: the reason that it was joint one which is not admissible in evidence; iron rod P.1 was recovered on the joint pointation of the appellants as stated by Tahir Hussain, A.S.‑I. (P.W.15); all the public witnesses are close relations of the deceased and that there is no eye‑witness of the actual murder. Further submits that no case whatsoever is made against the appellants.
On the other hand, learned counsel for the State submits that in the presence of P.Ws., the deceased Liaqat Ali was' taken by the appellants from his house alongwith tractor‑trolly on rent with a promise to pay Rs.1,000 besides the .diesel which was to be used in the tractor. He supports the judgment of trial Court.
I have heard learned counsel for parties and have gone through the prosecution evidence. In the instant case, according to the complainant Mubarik Ali who is real brother of the deceased Liaqat Ali both the appellants took away Liaqat 'Ali with them on the pretext that they had to take some material on the tractor end also promised to pay to the deceased Rs.1,000 besides the diesel and Liaqat Ali did not return for 1 or 2 days, but no report was lodged by the complainant with the police and the same was lodged on 5‑5‑1998 when the dead body was recovered. This inordinate delay in lodging the F.I.R. casts doubt on the prosecution story and it seems that the F.I.R. was lodged after due deliberation and consultation. The witnesses of last seen evidence are Mubarik Ali, Muhammad Younas and Siraj. Siraj was not produced while Mubarik Ali and Muhammad Younas are brother and maternal‑uncle of the deceased respectively. No independent witness of last seen evidence had been produced. As far as extra judicial confession is concerned, it. had been furnished by Muhammad Younas and Muhammad Ashraf, P.W.2 and P.W.5. After going through their statement. it is proved on record that evidence of extra judicial confession is joint one which is not admissible in evidence. Muhammad Younas as mentioned above, is maternal‑uncle of the deceased while Muhammad Ashraf, who is a Havaldar in police is real brother of the deceased. No independent person has been produced by the prosecution. Moreover, the story set up by the witnesses of extra judicial confession is not plausible. How the appellants would go to near relatives of the deceased in 'order to admit their guilt. The witnesses of iron Phatti P,1 are Safdar Hussain and Muhammad Azam P. Ws. Muhammad Azam is resident of Munawan. Iron Phatti was recovered from the revenue jurisdiction of district Sheikhupura, so there is violation of section 103, Cr.P.C. Moreover, according to the statement of Tahir Hussain (P.W.15) who partly investigated the case, iron Phatti was recovered on the joint pointation of the appellants which is not admissible in evidence. Dr. Azhar Masood Bhatti, (P.W.7) who conducted post‑mortem examination on the dead body of Liaqat Ali, deceased, on 7‑5‑1998 opined that face of the deceased was not recognizable; testicles and penis part of the deceased was not available and the dead body was in the moderate stage of putrefaction. It was very difficult to identify the dead body of the deceased and to say with certainty that it was the dead body of Liaqat Ali although his brothers had identified him. There is no evidence on record that the appellants led to the recovery of the dead body rather police on its own recovered the dead body. This piece of evidence cannot be used against the appellants. Tractor‑trolly allegedly belonging to the deceased .was never recovered on the pointation of the appellants. This is a case of circumstantial evidence. In such‑like cases, Court has to see that the links of circumstantial evidence are linked in such a manner that it should lead the accused to the gallows, which are not available in the present case. Although there is no previous background of enmity but the Court has also to see whether the prosecution has been able to prove its case beyond any shadow of doubt against the appellants‑accused. Answer, in the instant case, is in the negative.

Upshot of the above discussion is that prosecution has failed to prove its case against the appellants beyond any reasonable doubt, the benefit of which is to go to the appellants, so by allowing both the appeals, conviction and sentence recorded against the appellants by the trial ‑Court is set aside and both shall be released forthwith from jail, if not required to be detained in any other case.

H.B.T./M‑85/L Appeal allowed.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1022 #

2000 P Cr. L J 1032

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

MUHAMMAD NAZIM‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.880 and Murder Reference No.292/T of 1999, heard on 2nd March, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑‑Appreciation of evidence‑‑‑Matter was reported to police after considerable delay on recovery of dead body of deceased‑‑‑Nobody was named in F.I.R. and no suspicion was shown against any person whatsoever‑‑‑Accused despite having been arrested by police was not produced by prosecution‑‑‑Occurrence was an unseen one and only evidence against accused was that of extra judicial confession furnished by close relatives of deceased‑‑‑Statement by said prosecution witnesses with regard to extra judicial confession of accused was quite unnatural and unbelievable which could not be relied upon‑‑‑Weapon of offence, allegedly recovered, was not stained with blood according to report of Chemical Examiner‑‑‑Nobody had seen accused committing rape with deceased girl or giving her injuries‑‑‑Prosecution, in circumstances, had filed to prove its case against accused beyond any shadow of doubt‑‑Conviction and sentence recorded against accused by Trial Court, were set aside in circumstances.

Asif Mahmood Chughtai for Appellant.

Mansoor Ahmad Malik for the State.

Date of hearing: 2nd March, 2000.

JUDGMENT

KHAWAJA MUHAMMAD SHARIF, J.‑‑‑ This judgment will dispose of Murder Reference No.292/T of 1999 and Criminal Appeal No. 880 of 1999 filed by Muhammad Nazim, appellant who was convicted and sentenced for committing Zina-bil‑Jabr and Qatl‑e‑Amd of Mst. Sumaira by Judge, Anti‑Terrorism Court, Faisalabad vide his judgment, dated 29‑71999 as under:‑‑

| | | | --- | --- | | Under section 302(b), P.P.C. Under section 7 of the Anti‑ Terrorism Act, 1997 Under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 | Death Death with a fine of Rupees one lac and in default to 7 years' R.I. Life imprisonment |

Occurrence in this case had taken place at 11 a.m. on 11‑11‑1998 within the revenue estate of Chak No.247/RB at a distance of 13 kilometres from Police Station Dijkot District Faislabad while the matter was reported to the police by Muhammad Khalid (P.W.4) at 9‑15 a.m. on 12‑11‑1998 vide complaint Exh.P.G. and the formal F.I.R. Exh.P.G./1 was recorded by Ikhlaq Hussain, Muharrir, (P.W.11) on the same day at 9‑50 a.m.
Brief facts of the case are that Mst. Sumaira aged 7/8 years on 11‑11‑1998 at about 11 a.m. went outside the house in the street for playing but did not return back till evening. Complainant searched for his daughter and made announcement through loud speakers for four times with short intervals. She was not available and complainant spent the night worriedly. On the following day in the morning, Shahid (brother) and Talib Hussain (father) again searched for Sumaira. When the complainant alongwith his father and brother reached Killa No. 19. of Square No. 17, they found the dead body of Sumaira in the, sugarcane field. Her Shalwar was removed and was gagged in her mouth. Mst. Sumaira was murdered after committing Zina‑bil‑Jabr.
After registration of the formal RI.R., Mohammad Yaseen (P.W.13) went to the place of occurrence, prepared the injury statement Exh.P.C., inquest report, Exh.P.G. of Sumaira deceased, recorded statements of the P.Ws., took into possession the last‑worn, clothes of the deceased vide memo. Exh.P.K. and then the investigation was transferred to Mehar Taj, S.‑I./S.H.G., who arrested the appellant on 19‑11‑1998 who while in police custody led to the recovery of nail‑cutter P.1 which was taken into possession vide memo. Exh.P.F. After receipt of the report of Chemical Examiner about the swabs, Article 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was also added. After completion of the investigation, appellant was challaned to face the trial.
Prosecution in order to prove its case produced 14 witnesses in all. Thereafter, learned Deputy District Attorney tendered in evidence report of the Chemical Examiner Exh.P.A. according to which, swabs taken from vigina of the deceased, were stained with semen. Then statement of the appellant was recorded under section 342, Cr.P.C. in which he pleaded innocence and claimed false implication.
Learned counsel for the appellant has read before us the prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. and submits that it is a case of no evidence; it was an unwitnessed occurrence; it was a blind murder; there is evidence of only extra judicial confession coming from the mouth of Muhammad Akram (P.W.7) real maternal‑uncle of the deceased and Muhammad Afzal (P.W.8) a close relative of the complainant party which is unnatural and not convincing and that the appellant had been made a scape‑goat as the Prime Minister had gone or had to come to visit Faisalabad and the police in order to show its efficiency, without any evidence, material or basis, involved the appellant. Further, submits that the nail‑cutter allegedly recovered on the pointation of the appellant was not stained with blood. Learned counsel lastly submits that there is no evidence on record to connect the appellant with the' commission of the offence.
On the other hand, learned counsel for the State submits that there was no question of false implication or to falsely implicate the appellant. He supports tile judgment of trial Court.
We have heard learned counsel for parties and have gone through the evidence recorded by the learned trial Court. In the instant case, according to F.I.R., occurrence took place on 11‑11‑1998 at 11 a.m. while the matter was reported to the police on 12‑11‑1998 after recovery of dead body of Mst. Sumaira, daughter of the complainant. Nobody was named in the F.I.R. No suspicion was shown against any person whatsoever. Appellant was arrested on 19‑11‑1998 by Mehar Taj, S.H.O., who was not produced by the prosecution. It was an unseen occurrence. Only evidence against the appellant was that of extra judicial confession furnished by Muhammad . Akram (P. W.7) real maternal‑uncle of the deceased and Muhammad Afzal (P.W.8) a close relative of the complainant party. A perusal of their statements shows that appellant met them at Ada Dasooha and told them that he had committed Ziadati with Mst. Sumaira and requested them to get him pardoned from Khalid, father of the deceased. It is astonishing to note that both these witnesses did not apprehend the appellant there and then and produced before the police, rather both the witnesses had stated that appellant was being taken to police station but he ran away. If the appellant had come to both these witnesses in order to get him pardoned from the complainant, then there was no reason for his running away. Both these witnesses also did not go to police to tell about the extra judicial confession of the appellant made before them. Muhammad Akram (P.W.7) is aged 30 years while Muhammad Afzal (P.W.8) is aged 50 years. Appellant was aged 16/17 years. It does not appeal to reasons that a boy of 16/17 years would be able to made his escape good from the two persons having good physique, one P.W.7 being real maternal‑uncle of the victim. So, we do not believe the evidence of extra‑judicial confession.

As regards of recovery of nail‑cutter P.1 is concerned that was not stained with blood, according to report of the Chemical Examiner.

Nobody had seen the appellant committing rape with Mst. Sumaira or giving her injuries with nail cutter. We are mindful of the fact that a minor girl of 7/8 years was raped and done to death but we also cannot be oblivious of the fact that we cannot hang a person unless there is sufficient evidence in this regard having come from an unimpeachable source to connect the accused With the commission of offence. It may also be noted here that after arrest, appellant was taken to the house of Farooq M,N.A. by the Investigating Officer, who had nothing to do with the case. It has also come on record that the Prime Minister after hearing the news of rape and murder of the minor Sumaira had to visit Faisalabad, s0 the possibility of appellant being made a scape‑goat cannot be ruled out.

Taking into consideration the over all facts and circumstances of the case and the evidence brought on record, we are of the considered opinion that the prosecution had failed to prove its case against the appellant beyond any shadow of doubt. So, while accepting the appeal we set aside the conviction and sentence recorded against the appellant by the learned trial Court. Appellant is in jail and he shall be released forthwith if not required to be detained in any other case. Murder Reference is answered ,in the negative.

Death sentences is not confirmed.

H.B.T./M‑84/L Appeal accepted.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1027 #

2000 P C.r. L J 1041

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD RAMZAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.77/J of 1998, decided on 1st March, 2000

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Eye‑witnesses were resident of other District which was far away from the place of occurrence and no satisfactory explanation had been given by them for their presence at: the spot‑‑‑Defence witnesses who were close relatives of both deceased and accused were most natural witnesses as occurrence had taken place in their house‑‑‑Defence witnesses had denied allegations levelled against accused before police and also before the Trial Court and had deposed that of hearing hue and cry they saw deceased lying dead and unknown muffled persons ran away from the place of occurrence‑-‑Defence witnesses being inmates of the house where occurrence had taken place, were most natural' witnesses while prosecution witnesses who were residents of another District, their presence at the spot was doubtful and unnatural‑‑‑Version of defence. witnesses and prosecution witnesses if put in juxtaposition, would show that F.I.R. was lodged after due deliberation and consultation‑‑‑Prosecution having failed to prove its case against accused beyond any reasonable doubt, conviction and sentence awarded to accused by Trial Court were set aside, in circumstances.

A.H. Masood for Appellant (at State expenses).

Abdul Qayyum Anjam for the State.

Date of hearing: 1st March, 2000

JUDGMENT

This judgment will dispose of Criminal Appeal No.77/J of 1998 filed through jail by Muhammad Ramzan, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Okara vide his judgment, dated 25‑2‑1998 to life imprisonment with a fine of Rs.25,000 and in default .thereof six months' R.I. under section 302‑B, P.P.C.‑ for the murder of Muhammad Yasin. Benefit of section 382‑B, Cr.P.C. was also given to the

appellant.

Occurrence in this case had taken place at 3‑30 a.m. (mid‑night) on 18‑3‑1997 within the revenue estate of Feroze at a distance 17‑1/2 kilometers from Police Station Chauchak, District Okara while the matter was reported by Sultan (P.W.2) .at 8‑20 a.m. on the same day and the formal FIR. Exh.P.B. was recorded by Muhammad Ashraf, S:‑I. (P.W.11).
Brief facts of ‑the case were that 2/3 days prior to the occurrence, Yasin, deceased son of the complainant went to Feroze to visit his maternal-aunt alongwith his sister Mst. Perveen. Complainant alongwith Ahmad Ali and Bashir, Ahmad followed them to seek the hand of Kausar, daughter of Mst. Sattan for his son Yasin (deceased). Ramzan son‑in‑law of Sattan was also present there alongwith two daughters of Mst. Sattan, namely, Kausar and Nishan. Mst. Slttan, sister of the complainant was not present in the house. The complainant and his companion stayed for a night in the house of Mst. Sattan. Ramzan was sleeping in the street While the complainant and his companions slept in courtyard while Yasin son of the complainant was sleeping in the Chaphar. Electric bulb was on. Complainant woke up at about 3 a.m. (mid‑night) to urinate he saw Ramzan giving hatchet blow at the neck of Yasin, deceased. Complainant raised hue and cry upon which Ahmad Ali and Bashir Ahmad also woke up and tried to catch the accused. The accused extended threats to the complainant party and in the meanwhile gave four more blows on different parts of body of the deceased.
After registration of the formal F.I.R., Muhammad Ashraf, S.‑I. (P.W.11) proceeded to the place of occurrence, prepared the injury statement Exh.P.G./l, inquest report Exh.P.G., recorded the statements of the witnesses under section. 161, Cr.P.C., took into possession blood‑stained earth from the place of occurrence vide memo. Exh.P.C., arrested the accused on 30‑3‑1997 who while in police custody led to the recovery, of hatchet which was taken into possession vide memo. Exh.P.E. and after completion of the investigation, appellant was challaned to face the trial.
Prosecution in order to prove its case producFd 11 witnesses in all. Amongst them, there were two eye‑witnesses, namely Sultan (P.W.2) father of Yasin deceased and Bashir Ahmad (P.W.3) a near relative of the complainant party. Doctor Ghulam Hussain Alvi who conducted the postmortem examination on the dead body of Yasin deceased was examined as P.W.6. Thereafter, the learned Deputy District Attorney tendered in evidence Report of the Chemical Examiner Exh.P.I., Report of the Serologist Exh.P.J. and Report of the Chemical Examiner Exh.P.K. closed the prosecution evidence. Then statement of the appellant was recorded under section 342, Cr.P.C. in which he pleaded innocence and claimed false implication. He also produced Mst. Sattan (D.W.1) maternal‑aunt of the deceased and mother‑in‑law of the appellant and Mst. Kausar (D.W.2) daughter of Mst. Sattan in his defence. After completion of the trial, appellant was convicted and sentenced as stated above.
Learned counsel for the appellant Mr. A.H. Masood, deputed at State expense has read before me the prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. and evidence of D.Ws. recorded by the learned trial Court and submits that it was an un-witnessed occurrence, two eye‑witnesses namely Sultan (P.W.2) and Bashir Ahmad (P.W.3) are not residents of the place of occurrence or village, occurrence had .taken place at 3‑30 a.m. (mid‑night) in the house where there was no electricity; recovery had been planted upon the appellant, the two D.Ws. appeared before the trial Court on behalf of appellant are most natural witnesses and that there are two versions on the record, one set up by the prosecution and the other put forth by the defence witnesses. Further, submits that if both the versions are put in juxtaposition, the version given by the appellant and D.Ws. seems more plausible and convincing one.
On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellant and submits that it is a single accused case, substitution is rear phenomena, there was no previous background of enmity and that there was no question of false implication. Learned counsel lastly supports the judgment of trial Court.
I have heard learned counsel for parties and have gone through the prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. and the evidence of D.Ws. In the instant case, two eye‑witnesses, namely, Sultan (P.W.2) and Bashir Ahmad (P.W.3) are residents of Faisalabad, far away from District Okara where the occurrence had taken place. No satisfactory explanation has been given by them for their presence at the spot. Moreover, the occurrence had taken place in the house of Mst. Sattan (D.W.1) who is real maternal‑aunt of deceased Yasin and mother‑in‑law of the appellant because Noor Nishan her daughter was married with deceased but Rukhsti had not taken place. Mst. Sattan was owner of the house while Mst. Noor Nishan (D.W.2) was her daughter. They had categorically denied the allegations levelled by the eye‑witnesses before the police and also before the trial Court and deposed in their statements that there was no electricity in their house, on hearing the hue and I cry both the D.Ws. woke up and saw Yasin deceased lying dead and unknown muffled person ran away from the place of occurrence, Riaz was sent to the village of the complainant to inform the complainant about the occurrence, Sultan and others came to their house in the evening and that the police did not agree to their story. Both the D.Ws. being inmates of the house were most natural witnesses while the prosecution witnesses being not the resident of place of occurrence rather were resident of Faisalabad, far away from the place of occurrence, that is, District Okara, in my view, their presence at the spot was doubtful and unnatural. Both the versions, if put in juxtaposition, also show that F.I.R. was lodged after due deliberation and consultation. '

From the, above .analysis of the evidence brought on record from both the sides, I am of the opinion that prosecution has failed to prove its case against the appellant beyond any reasonable doubt, so by accepting this appeal, conviction and sentence recorded against the appellant by learned trial Court, is set aside. Appellant is in jail and shall be released forthwith, if not required to be detained in any other case.

H.B.T./M‑83/L Appeal accepted.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1032 #

2000 P Cr. L J 1049

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

FAKHAR ABBAS and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 954 and Murder Reference No. 361/T of 1999, heard on 17th February, 2000. , Offence of Zina (Enforcement of Hudood) Ordinance (VU of 1979)‑‑‑

‑‑‑‑S. 10(4)‑‑‑Appreciation of evidence‑‑‑Complainant who was real uncle of prosecutrix, had exonerated accused and he having not supported prosecution, was declared hostile‑‑‑Other two eye‑witnesses had also not supported the prosecution case ‑‑‑Prosecutrix had herself admitted in cross-examination that she did not know names of accused persons present in Court and that she could not identify them as they had muffled their faces at the time of occurrence‑‑‑No identification parade was held‑‑‑Statement of prosecutrix was not supported by any other eye‑witness‑‑‑Allegation that two real brothers alongwith others would commit Zina together did not appeal to a man of ordinary prudence‑‑‑Prosecution, in circumstances, had failed to prove case against accused beyond any doubt‑‑‑Accused had been able to create dents in prosecution case, benefit of which must go to accused as a matter of right and not a grace‑‑‑Death penalty having been provided under law in the case, Court had to be very careful while convicting accused on such a charge and had to satisfy that evidence produced by prosecution was sufficient to connect accused with commission of such a heinous offence‑‑‑Conviction and sentence of accused were set aside, in circumstances.

Hafiz Khalil Ahmad for Appellants.

A.H. Masood for the State.

Date of hearing: 17th February, 2000.

JUDGMENT

KHAWAJA MUHAMMAD SHARIF, J.‑‑‑ This _ judgment will dispose of Criminal Appeal No.954 of 1999 filed by Fakhar Abbass, Qaiser Abbass, Sadiq Hussain, Mazhar Abbass and Muhammad Shahbaz, appellants who were convicted and sentenced to death under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 by learned Judge, Special Court, Faisalabad Division, Faisalabad constituted under

Anti‑Terrorism Act, 1997 vide his judgment, dated 13‑9‑1999. Reference No.361/T of 1999 for confirmation of death sentence of appellants shall also be disposed of through this judgment:

Occurrence in this case had taken place in the revenue estate of Chah Beliwala, Mauza Hasnana, 7 kilometers away from Police Station Kotwali, District Jhang at 11/12 noon on 29‑3‑1999 while the matter was reported to police by Shamas‑ul‑Haq (P.W.9) at 4‑00 p.m. vide Exh.P.L. on 30‑3‑1999 and the formal F.I.R. Exh.P.L:/1 was recorded by Qadeer Ahmad, Muharrir (P.W.7) on the same day.
Brief facts of the case were that Shamas‑ul‑Haq, complainant is real uncle of Mst. Kausar Perveen. She at 11/12 noon of 29‑3‑1999 was going towards Basti Beeliwala. When she reached near the tree of Fida Hussain, Fakhar Shah said to her that she was being called by a woman who was present in the room. Upon this, Kausar Perveen went into the room and thereafter, Fakhar Shah, Shahbaz, Sadiq, Qaiser and Mazhar who were already sitting under the tree, went into the room. Shalwar of Kausar Perveen was removed and all the five accused committed Zina‑bil‑Jabr with her. Upon hue and cry, Muhammad Sharif and Moamar Sajjad attracted to the place of occurrence and witnessed the occurrence.
After registration of the F.I.R., Aman Ullah, S.‑I. (P.W.10) proceeded to the place of occurrence,' took into possession 13 pieces of bangles P.1/1‑13 vide memo. Exh.P.A. and arrested Fakhar Abbass, Sadiq. Hussain Shah, Shahbaz and Mazhar on 6‑4‑1999. After completion of the investigation, all the five accused were challaned to face the trial.
Prosecution in order to prove its case produced 10 witnesses in all out of whom Shamas‑ul‑Haq (P.W.9) Muhammad Sajid (P.W.2) and Muhammad Sharif (P.W.3) were eye‑witnesses while the lady doctor who conducted medical examination of Kausar Perveen was examined as P.W.4. Report of the Chemical Examiner is Exh.P.D. Thereafter, statements of the appellants were recorded under section 342, Cr.P.C. After the conclusion of trial, all the five appellants were convicted and sentenced as stated above.
Learned counsel for the appellants has read before us the prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. and submits that all the three eye‑witnesses, namely, Shamas‑ul‑Haq, real uncle of the victim (P.W.9), Muhammad Sajid (P.W.2) and Muhammad Sharif (P.W.3) had not supported the prosecution case before the trial Court; Kausar Perveen while being examined as P. W.1 had admitted in cross‑examination that she did not know the names of the accused and could not identify them at the time of occurrence as the accused had muffled their faces and that no identification parade was held in this case. Further, submits that Fakhar Abbass and Qaiser Abbass are real brothers and it does not appeal to sense that two real brothers alongwith others would commit Zina‑bil‑Jabr with one woman and that the prosecution has miserably failed to prove its case against the appellants.
On the other hand, learned counsel for the State opposes the submissions made by learned counsel for the appellants and supports the judgment of the trial Court.
We have heard learned counsel for parties and have gone through the prosecution evidence. Under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 only death sentence is provided. Court has to be very careful while convicting a person on such a charge and has to satisfy that the evidence produced by the prosecution is sufficient to connect the accused with the commission of such a heinous offence. In the instant case, Shamas‑ul‑Haq (P.W.9) is real uncle of Kausar Perveen, victim. He has categorically exonerated the appellants and did not support the prosecution case, that is why, he was declared hostile The other two eye witness, namely,' Muhammad Sajid (P.W.21 and Muhammad Sharif (P.W.3) have also not supported the prosecution case. After this, we are now left only with the statement of Mst. Kausar Perveen (P.W.1). Although, she had stated in her examination‑in‑chief that the accused present in Court had committed Zina with her, on her hue and cry, Shamas‑ul‑Haq, Shajoo and some other persons came there and rescued her from the accused but in cross-examination admitted that she did not know the names of the accused present in Court and that at the time of occurrence she could not identify them as the accused had muffled their faces. How the victim recognized the accused and as to how she came to know their names when no identification parade was held. It also does not appeal to a man of ordinary prudence that two real brothers alongwith others would commit Zina together. How on the basis of such evidence we can hang five persons. In our opinion statement of Kauser Perveen (P.W.1) is not corroborated by any other eye‑witness including her real uncle Shamas‑ul‑Haq, complainant of the case. Prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt and appellants have been able to create dents in prosecution case, the; benefit of which must, as a matter of right and not a grace, should go to the appellants. Resultantly, all the five appellants are acquitted of the charge, conviction and sentence awarded to them by the trial Court is set aside by accepting their appeal, they are behind the bar and shall be released forthwith, if not required to be detained in any other case. Reference is answered in the negative.

Death sentences are not confirmed.

H.B.T./F‑6/L Appeal accepted.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1041 #

2000 P Cr. LJ 1052

[Lahore]

Before Ali Nawaz Chowhan, J

GOHAR ALI and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.321/B of 1990, decided on 22nd February, 2000.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/324/148/149‑‑‑Bail, grant of‑‑‑No weapon of offence was recovered from accused and no overt act was ascribed to him except Lalkara‑‑‑Bail could not always be withheld as punishment‑‑‑Role ascribed to accused and their vicarious liability had made case against them that of further enquiry‑‑‑Bail was granted to accused.

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

‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Principles‑‑‑Deeper appreciation of evidence could not be made at bail stage provided the same was not required and Court had just to see whether prima facie, a case of further enquiry was made out.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 and Dhani Bux and another v. The State 1990 PCr.LJ 1293 ref.

Mian Fazal Rauf Joiya for Petitioners.

Javed Iqbal for the State:

ORDER

The matter pertains to F.I.9. No.187 of 1999; under section 302/324/148/149, P.P.C., lodged at Police Station Sadar, Arifwala.

The F.I.R. was lodged on the statement of Bashir Ahmad complainant. According to the story at about 9 ' p.m. a Panchayat of the village was sitting with about 50/60 people to decide a dispute pertaining to the quarrel of children of the village. That when the Panchayat failed to arrive at a decision, his son Shah Nawaz went away from the Panchayat. He had reached near the house of a co‑villager Ghulam Nabi when he was confronted by Muhammad Akram armed with a Chhuri (not the petitioner), Muhammad Nawaz son of Sanaullah armed with a Chhuri (not the petitioner), Allah Ditta, armed with a Sota (not the petitioner), Ahmad Ali and Gohar Ali, armed with Sotas (the petitioners) and Fakhar Hayat, armed with Sota (not the petitioner). They raised a Lalkara that they had come to teach lesson of the previous event pertaining to the fight between the children. Muhammad Nawaz inflicted a Chhuri blow on Shah Nawaz which landed on the right flank at the back. Allah Ditta gave a Sota blow hitting Shah Nawaz on the head. Shah Nawaz raised alarm when the complainant alongwith the, P.Ws. Nazir Ahmad and Sarfraz etc. came forward to rescue Shah Nawaz. The accused left Shah Nawaz and ran after Nazir Ahmad, his brother, who entered his house. But in the meanwhile Fakhar Hayat caught hold of Nazir Ahmad. That Muhammad Akram inflicted three Chhuri blows on Nazir Ahmad landing these on his chest and back. That Nazir Ahmad fell on the ground and died afterwards. Several people of the Deh (village) arrived later on. Who caught hold of Akram alongwith his Chhuri. Rest of the accused ran away. Muhammad Akram also sustained some injuries during the altercation.
The motive part of the story was the previous quarrel between the children.
‑ Bail is urged on the grounds that the petitioners Gohar Ali and Ahmad Ali have only been ascribed Lalkara. That there is no injury attributed to them either on the person of Shah Nawaz or the deceased Nazir Ahmad. That. no weapon has been recovered from them. That the investigation is complete and they were no longer required by the police.
Previously their bail applications were rejected by the learned Additional Sessions Judge, Arifwala. One of the consideration before the learned trial Court was that the trial in this case has started and the delay was being caused by the defence because they had not engaged a counsel. That the accused have been challaned. The order reflects that a recovery of Sota was made from Ahmad Ali petitioner.
It is an admitted fact that no recovery was effected from Gohar Ali petitioner. A Sota is said to have been recovered from Ahmad Ali on 2‑5‑1999 as is evident from the recovery memo. placed on the police file. There is no overt act ascribed to him except Lalkara.
When the challan has been submitted and the trial is about to commence the Courts often decline to exercise their discretion under section 497, Cr.P.C. for grant of bail. But bail cannot always be withheld as punishment. The role ascribed to the petitioners is clear and it makes a case of further enquiry as far as they are concerned with respect to their role in the occurrence and with respect to their vicarious liability under the circumstances of the case.
Whereas, according to the learned A.A.‑G. the challan has been submitted in the Court but he has not stated as to when the trial shall begin. The learned trial Court was further of the view that deeper appreciation of the evidence could not be made at the bail stage provided that a deeper E appreciation was not required and it had just to see whether prima facie a case of further enquiry was made out. In this connection reference may be made to the case of Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 and Dhani Bux and another v. The State 1990 PCr.LJ 1293.
After hearing the learned counsel for the parties, I admit the petitioners to bail in the sum of Rs.50,000 with two respectable sureties each in the like amount to the satisfaction of trial Court, who is directed to commence the trial in this case with a convenient despatch.

H.B.T./G‑10/L Bail granted.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1049 #

2000 P Cr. L J 1058

[Lahore]

Before Sheikh Abdur Razzaq, J

SHAKEEL AHMAD‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No :54 of 1999, heard on 11th February, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(c) & 337‑L(ii)‑‑‑Appreciation of evidence‑‑‑No evidence was available on record to establish‑ that the accused was responsible for causing the death , of the deceased by inflicting injury on his belly‑‑‑Accused, however, was proved by ocular testimony and medical evidence to have caused one injury on the left leg of the deceased and another injury to the prosecution witness‑‑‑Conviction and sentence of accused under S.302(c), P.P.C. were consequently set aside, but he was convicted under S.337‑L(ii), P.P.C. on two counts and sentenced to imprisonment already undergone by him with payment of Daman on each count in circumstances.

Malik Muhammad Nawaz Khan for Appellant Mobeen Ahmad for the State.

Date of hearing: 11th February, 2000.

JUDGMENT

Briefly stated the prosecution case is that on 27‑6‑1996 Muhammad Rashid complainant went to the house of his in‑laws allongwith his wife at about 3‑00 p.m. His wile exchanged some hot words with Mst. Shakila wife of Muhammad Yasin, over some domestic matters. Thereafter Mst. Shakila returned to her house. At 3‑30 p.m. Mst. Shakila returned allongwith her brothers Shakil Ahmed, Jamil Ahmed alias Goga armed with Dandas, Mst. Nasreen and Mst. Hakim Bibi empty handed. Just after their arrival, Shakil Ahmad gave a Danda blow which hit Muhammad Rashid‑complainant on his right arm. Jamil Ahmad thereafter gave two successive Danda blows which hit on the left and right legs. of Muhammad Rashid, complainant. Jamil Ahmed further gave two Danda blows, which hit on the back of Muhammad Rashid complainant. His father‑in‑law Imam Din tried to intervene upon which he was also given a Danda blow by Shakil Ahmed, which hit him on his left leg. and it started bleeding. Mst. Hakim Bibi picked up Danda from there and also gave its blow upon his waist. Mst. Nasreen and Mst. Shakila hurled` abuses upon them. On their cries Muhammad Yasin who was present adjacent to them rushed to the spot and got them rescued from the hands of assailants. Motive behind this occurrence is that Mst. Shakila wife of Muhammad Yasin had been complaining about her in‑laws, upon which she was restrained which annoyed her and she in prosecution of the common object attacked the complainant and Imam Din and caused injuries to them.

On receipt of information Abdul Waheed, A.S.‑I. (P.W.10) reached D.H.Q., Hospital where he found that Muhammad Rashid‑complainant and Imam Din were lying in injured condition. On the statement of Muhammad Rashid complainant, he drafted complaint Exh.P.H. and sent the same to the police station for formal registration of case, through Ali Asghar, constable. On 28‑6‑1996 Jawad Anwer, A.S.‑I. informed him from hospital about the death of Imam Din and accordingly he lodged the instant F.I.R. He then proceeded to the hospital allongwith Ata Muhammad and Iftikhar Ahmad constables, prepared inquest report Exh.P.J. and despatched the dead body for post‑mortem examination through Iftikhar Ahmad constable. He also recorded the statement of Muhammad Yasin and Mst. Farida. On 29‑6‑1996 he went to the hospital for collecting post‑mortem examination report and found that S.‑I./S.H.O. wag already present there. Later on subsequent investigation was conducted by Muhammad Riaz Anwar, S.H.O.(P.W.11) who deposed that ‑he had gone to Civil Hospital alongwith Ali Ahmad constable when Abdul Waheed, A.S. ‑I. allongwith Ata Muhammad constable met him and thereafter he proceeded to the place of occurrence and prepared rough site plan. Iftikhar Ahmad constable produced post‑mortem examination report and so also last worn clothes of the deceased EXhS.P.I and P.2 which he secured vide memo. Exh.P.A. On 4‑7‑1996 he took Maqbool Ahmed draftsman at the place of occurrence, who secured rough notes, that Jamil Ahmed and Shakil Ahmed accused appeared before him at Jadda Chowk and he also joined Nazir Ahmed and Afzal P. Ws. who met him by chance over there. He arrested both Shakil Ahmed and Jamil Ahmed. Accused Shakil Ahmed led to the recovery of Danda Exh.P.3, which he secured vide memo. Exh.P.F. Accused Jamil Ahmed led to the recovery of Danda Exh.P.4 which he secured vide memo. Exh,P.G. He handed over the said case property to the Moharrir‑Head-constable and sent the accused to judicial lock‑up on 5‑7‑1996. On 10‑7‑1996 draftsman handed over to him site plans Exh.P.E and Exh.P.E/1‑2 and on 16‑7‑1996 he formally arrested Mst. Hakim Bibi. After completing the investigation, he got the accused challaned.
A charge under sections 302, 324, 148 and 149, P.P.C. was framed against the accused to which they pleaded not guilty and claimed trial.
In order to bring home guilt to the accused prosecution examined P.W.1 Liaqat Ali, M.H'.C., who deposed that on 29‑6‑1996 he was given a sealed parcel and an envelope by Muhammad Riaz Anwar, S.H.O./S.‑I., for keeping the same in Malkhana, that he delivered the said parcel to Muhammad Sajjad constable for onward transmission to the office of Chemical Examiner who returned the same with an objection and after removing the said objection, he again delivered the said parcel to Muhammad Sajjad, constable. P.W.2 Muhammad Sajjad constable corroborated the version of P.W.1 and stated that after removing the objection he was handed over the parcel on 3‑7‑1996 which he delivered there intact. P.W.3 Iftikhar Ahmad constable deposed that on 29‑6‑19196 he escorted the dead body of Imam Din. After post‑mortem examination he was given last worn clothes of deceased P.1 and P.2 which he delivered before the Investigating Officer who secured it vide memo. Exh.P.A. which bears his signature. P.W.4 Dr. Shahid Tanvir deposed that on 27‑6‑1996, he examined the injured Imam Din and found three injuries on his person. He also advised him X‑Ray. He further, deposed that duration between injuries and medical examination was within 4 hours and, the nature of weapon was blunt. He issued M.L.R. Exh.P.B. on the application of police, which is Exh.P.B./I. On the same day he also examined Muhammad Rashid and found 4 injuries on his person. He issued M.L.R. Exh.P.C. on the application Exh.P.C./I. he further deposed that on 29‑6‑1996 he conducted post‑mortem examination of Imam Din and found the following injuries on his person:‑‑‑

(1) A lacerated wound 2 c.m. x 1/2 c.m. at anterior of left lower 1/3 of lower leg skin deep.

(2) Abdomen tenderness present.

(3) Patient vomiting and disoriented.

He further stated that probable time between injury and death was about 30 hours and between death and post‑mortem examination was 16 hours. After the post‑mortem examination he handed over post‑mortem examination report Exh.P.D. which bear his signature Exh.P.D,/I. In his opinion rupture of the abdominal viscera was the cause of death by causing hemorrhage, peritonitis and septicemia. Left lung appears to be tuberculous, and Was sent. to Histopethologist for examination. P.W.5 Maqbool Hussain, draftsman deposed that he witnessed the place of occurrence on 4‑7‑1996 and handed over the site plans to the investigation office on 10‑7‑1996' which are Exh.P.E. and Exh.P.E./1‑2, P.W.6 Nazir Ahmed joined the investigation on 4‑7‑1996 when Shakil Ahmed and Jamil Ahmed produced Dandas P.3 and P.4 which were secured vide memos. Exhs.P.F. and P.G. respectively. P.W.7 Muhammad Yasin is an eye‑witness of this occurrence who has corroborated the prosecution version of Muhammad Rashid complainant (P.W.8). P.W.8 Muhammad Rashid Complainant corroborated his version as narrated in complaint Exh.P.H. P.W.9 Jawad Anwar, A.S.‑I: deposed that on 28‑6‑1996 he received an intimation from D.H.Q. Hospital regarding death of Imam Din and accordingly added offence under section 302/148/ 149,`P.P.C. in the instant F.I.R. P.W.10 Abdul Waheed A.S.‑I. and P.W.11 Muhammad Riaz Anwar, S.‑I. are the Investigating Officers whose evidence has already been discussed above. Thereafter, the learned D.D.A. closed the prosecution evidence vide his statement, dated 7‑1‑1999.

When examined under section 342, Cr.P.C. Mst. Hakim Bibi accused‑appellant stated that she had been implicated in this case falsely due to his relationship with Mst. Shakila who is her daughter and is wife of Muhammad Yasin son of Imam Din deceased. She stated that she would neither lead any defence evidence nor would record her statement under section 340(2), Cr.P.C. Similarly Mst. Shakila denied the prosecution version and stated in reply to question No.6 as follows:‑‑ '

"The false case has been lodged against me and my co‑accused. The P.Ws. being closely related to the deceased have deposed falsely against me and my co‑accused. The real facts are that on 27‑6‑1996 at noon time I alongwith my father‑in‑law Imam Din (now deceased) and mother‑in‑law Mst. Maqbool Jan were present in the house when Rasheed P.W. and his wife Mst. Farida came there. I have given birth to three daughters. Both Rasheed and Farida taunting me addressed me and said that, ' I always give birth to daughters and has not given any son as a result of which they would not get any male descendent of their common ancestor'. Then saying so both of them soolded me and grappled with me. Both of them tried to push me out of the house for ever. On seeing this act of Rasheed and Mst. Farida my father‑in‑law Imam Din intervened and rescued me addressing that both Rasheed and Mst. Farida should not be so cruel to me but Rasheed did not bear the impression of Imam Din and in angry mood caused a blow with the toe of his boot on the left calf of Imam Din deceased. Imam Din again tried to intervene but Mst. Farida to keep away Imam Din gave him a forceful jerk on the abdomen of Imam Din who fell on a cot, thereafter Rasheed and Mst. Farida pushed me out of the house. Imam Din my father‑in‑law was a patient of chronic T.B. He was above 70 years and feeble. I or my co‑accused had no motive of any kind against Imam Din. He died a natural death. The remaining co-accused were not present at that time. My husband Muhammad Yasin was also not present at home at that time. I am innocent. I and my co‑accused have been involved in this case falsely on account of abovementioned incident and relationship with each other."

She, however, tendered attested copy of report of Bacteriologist Exh.D.B. and stated that she would not produce herself under section 340(2), Cr.P.C. Accused Jamil Ahmad when examined under section 342, Cr.P.C. denied the prosecution version and in reply to question No.7 deposed as follows:

"I have been falsely involved in this case due to Mst. Shakila who is my real sister and wife of Muhammad Yasin son of Imam Din deceased. The P.Ws. have deposed falsely against me and my co= accused due to their relationship with the deceased.."

Similarly accused Shakil Ahmed denied the prosecution version and in reply to question No.7 deposed as follows:‑‑

. "I have been falsely involved in this case due to relationship with Mst. Shakila Rani who is, my real sister and wife of Muhammad Yasin son of Imam Din (now deceased). The P.Ws. have deposed falsely due to relationship with the deceased."

After going through the evidence produced by the parties, the trial Court convicted the accused Shakil Ahmed under section 302‑C, P.P.C. and sentenced him to imprisonment for life and to pay a sum of Rs.1 lac as compensation disbursable to the legal heirs of the deceased or in default thereof to undergo R.I. for 6 months. He further convicted him under section 337‑L‑II P.P.C.. and sentenced him to R.I. for one year and Daman of Rs.15,000. He ordered that both the sentences shall run concurrently. He further convicted Jamil Ahmed and sentenced him to pay Daman of Rs.1,000 and convicted Mst. Hakim Bibi to pay Daman Rs.5,000. He, however, acquitted Mst. Shakila Bibi and Mst. Nasreen Bibi.
Shakil Ahmed‑accused/appellant has felt aggrieved and filed appeal whereas Jamil Ahmed and Mst. Hakim Bibi have also felt aggrieved and filed Criminal Appeal No.60 of 1999. As both the appeals arise out of same judgment, so these are being disposed of by this single judgment.
Arguments have been heard and record perused.
Contention of the learned counsel for the appellant‑Shakil Ahmed is, that he has been convicted under section 302‑C, P.P.C. and sentenced to imprisonment for life and fine of Rs.1 lac or in default thereof to undergo R.I. for 6 months for causing death of Imam Din and has further been convicted under section 337/L‑(2), P.P.C. and sentenced to R.I. for one year and Daman Rs.15,000 for causing hurt to Muhammad Rashid‑complainant. He contended that paragraph No.44 of the impugned judgment reveals that Shakil _ Ahmed has been held responsible for causing a blow in the belly of the deceased Imam Din resulting into rupture of stomach and causing his death. He argued that no such blow in the belly of victim has been attributed to the present accused/appellant Shakil Ahmed, as per contents of complaint Exh.P.H., that when no blow in the belly of deceased has been attributed to the accused/appellant Shakil Ahmed so how he could be held responsible for a death which is the result ‑of such blow, that at the most he could be saddled with liability of causing injury to Imam Din on his left leg, that he could also be held responsible for causing injuries to Muhammad Rashid‑complainant, for which he .has been convicted under section 337‑L‑(ii), P.P.C. and sentenced to R.I. for one year and to pay Daman Rs.15,000. He, thus, argued that conviction of Shakil Ahmed appellant under section 302‑C, P.P.C. is not warranted by law and be set aside, He next argued that it stands proved from evidence adduced by the prosecution that Shakil Ahmed has caused only one injury on the left leg of deceased, so he can be convicted and sentenced for causing said injury which falls within the ambit of section 337‑L(ii), P.P.C. So far as the appellants Jamil Ahmed and Mst. Hakim Bibi are concerned, he submitted that he would not press their appeal as they have already undergone the sentence awarded to them and have also paid the amount of Daman imposed upon them, that Shakil Ahmad has been in jail since 4‑7‑1996, so he has adequately been punished and the sentence already undergone by him is sufficient to meet the ends of justice arid he does not deserve any further imprisonment.
Conversely the learned counsel for the State has candidly conceded to the contention of the learned counsel for the appellant, so far, it relates to the conviction of Shakil Ahmed appellant under section 302‑C, P.P.C. is concerned. He, however, submitted that as appellant Shakil Ahmed has been assigned a specific role of causing injury on the left leg of the deceased so he be convicted under section 337‑L‑1I, P.P.C. and be punished in accordance with law. , 11. A perusal of complaint Exh.P.H. reveals that no injury on the belly of the deceased is attributed to Shakil Ahmed appellant. However; the learned trial Court hag convicted him for causing said injury, as is evident from paragraph No.44. of the impugned judgment. The reasoning advanced by the learned Additional Sessions Judge for arriving said conclusions are devoid of any force. He has observed in paragraph No.39 of the impugned judgment that as initially Imam Din was not the direct target, therefore, under, attack Muhammad Rashid could not keep an eagle's eye upon the assailants and could not ascribe said injury to the accused/appellant Shakil Ahmed. He further holds that as Muhammad Yasin P.W was also under similar stress so he could also not observe said injury. Such observations do not find any support from the statement of Muhammad Rashid (P.W.8), who is absolutely silent on that score. This being the factual position, the findings referred above are not conceivable. Thus, findings of the trial Court holding the appellant Shakil Ahmed responsible for causing death of Imam Din by inflicting . injury on his belly are not based on evidence adduced by the prosecution and are accordingly set aside. He has been attributed one injury on the left leg of the deceased and the same stands proved not only from ocular evidence but also from medical evidence. Thus, he can be held responsible for said injury which falls within the ambit of section 337‑L(ii), P. P. C.
The upshot of above discussion is that conviction and sentence awarded to the appellant Shakil Ahmed under section 302(c), P.P.C. is set aside and he is convicted under section 337‑L(2), P.P.C. and sentenced to R.I. for two years and Daman of Rs.30,000. He (appellant) already stands convicted under section 337‑L(2), "P.P.C. and sentenced to R.I. for one year and Daman of Rs.15,000 for causing injury to Muhammad Rashid and the same is hereby maintained. As the appellant has been in jail since 4‑7‑1996, so the sentence of two years awarded to him under section 337‑L(2), P.P.C is modified to one, which he has already undergone. The amount of Daman shall be recovered as provided under section 333‑Y, P.P.C. The appellant Shakil Ahmed shall, however, be extended benefit of section 382‑B, Cr.P.C. It is further ordered that both sentences shall run concurrently.
Since Appeal No.60 of 1999 (Jamil Ahmed etc. v. The State) has not been pressed by the learned counsel, for reasons recorded in paragraph No.9 (supra) so the same stands disposed of having become infructuous.
With the modification in the sentence awarded to the appellant Shakil Ahmed the appeal is hereby dismissed.

N.H.Q./S‑14/L Order accordingly.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1052 #

2000 P Cr. L J 1069

[Lahore]

Before Ali Nawaz Chowhan, J

ALLAH DITTA and‑5 others‑‑‑Petitioners

versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous NoJ0/M of 2000, decided on 20th January, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 452/337‑A%337‑F(i)/148/149‑‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑‑Quashing of order‑‑‑Magistrate had not acquitted the accused on merits but because of the absence of the complainant under S.247, Cr.P.C.‑‑Sessions Court in revision had not converted the acquittal of accused into an order of conviction, but had merely returned the case to the Magistrate for retrial‑‑‑Sessions Court was competent to do so either suo motu or on the basis of facts coming. to its knowledge through a revision petition‑‑‑Petition for quashing the said order of remand passed by Sessions Court was dismissed accordingly.

Nafees Ahmad Ansari for Petitioner.

ORDER

Through this revision .petition made under section 561‑A of the Cr.P.C, the order dated 11‑10‑1999 passed by the learned Sessions Judge, Lodhran has been questioned.

Respondent Mst. Raj Mai had filed a private complaint against the petitioners before the Judicial Magistrate, Dunyapur, District Lodhran. Who after conducting an enquiry summoned the petitioners as accused under section .452/337/‑A/337‑F(i)/148/149 of the Pakistan Penal Code. On 15‑7‑1999 Mst. Farzana, one of the accused, did not appear in the Court while the complainant too, was absent when he passed an order of acquittal. The order reads as follows:‑‑
The matter was taken in revision before Mr. Aziz‑ur‑Rehman Khan, learned Sessions Judge, Lodhran. Who came to the conclusion that as the accused had been summoned in a case which was cognizable, but was not compoundable being offences under section 452/337‑A/337‑F(i)/148/149, P.P.C. and as such he had no powers to acquit the accused under section 247 of the Criminal Procedure Code.
Section 247 of the Cr.P.C. reads as follows:

"247.‑ Non‑appearance of complainant.‑‑‑ If the summons has been issued to complainant, and upon the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks proper to adjourn the hearing of the case to some other day:

Provided, where the complainant is a public servant and his personal attendance is not required, the Magistrate may dispense with his attendance, and proceed with the case;

Provided further that nothing in this section shall apply where the offence of which the accused is charged is either cognizable or non-compoundable. "

The main argument of the learned counsel for the petitioner before this Court was that since the Magistrate had passed an order of acquittal, a revision was not sustainable. Whereas the petitioners ought to have gone in appeal under section 417 of the Cr.P.C.
This was not a case of acquittal on merits but an acquittal because of the absence of the complainant and it had to be seen whether the law which was used for purposes of such an order permitted the Magistrate to pass an order of acquittal under the circumstances. Even otherwise, the .learned Sessions Judge was not converting an acquittal into an order of conviction but had merely returned the case for re‑trial. The learned Sessions Judge was competent in doing so either suo motu or on the basis of the facts coming to his knowledge through a revision petition. This Court, thus, finds the present application filed under section 561‑A; Cr.P:C. having no merits in it. It is, therefore, dismissed.

N.H.Q./A‑35/L Petition dismissed.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1058 #

2000 P Cr. L J 1084

[Lahore]

Before Muhammad Naseem Chaudhri, J.

KHALID IQBAL GHAURI‑‑‑Petitioner

versus

ALLAH DITTA, MAGISTRATE, FIRST CLASS, MANDI BAHAUDDIN and 4 others‑‑‑Respondents

Writ Petition No.23609 of 1999, heard on 16th February, 2000.

Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑S. 188‑‑‑Price Control and Prevention of Profiteering and Hoarding Act (XXIX of 1977), S.3/7‑‑‑Coustitution of Pakistan (1973), Art.199‑‑Quashing of F.I.R.‑‑‑Hoarding‑‑‑Encroachment‑‑‑Prosecution witnesses . had not stated that some of the Gas Cylinders were lying on the thoroughfare‑‑; Section 188, P.P.C. was, thus, not applicable to the facts of the case‑‑Placing of some of the material out of a shop would not come within the purview of encroachment for which the prohibitory order was in force‑‑Presence of 25 Gas Cylinders in the shop would not make out that the same were being hoarded by the shopkeeper as such number was not alarming for the attraction of S.3/7 of the Price Control and Prevention of Profiteering and Hoarding Act, 1977=‑‑No material was available on record to show that the sale of the Gas Cylinders was refused to the customers and that the hoarding was being made for wrongful gain of the accused (petitioner) or wrongful loss. to any customer‑‑‑No order in the matter to be followed by the accused was even passed in terms of F.3 of the said Act‑‑‑Case seemed to have been made for the harassment of the accused by the complainant for the reasons best known to him and obviously at the command of his superior Officer‑‑‑Registration of the impugned F\I.R. being the outcome of mala fides, the same could not remain in the field ‑‑‑F.I.R. registered against the accused was quashed accordingly.

M. Amin Azad for Petitioner.

Ms. Roshan Ara, A.A.‑G. for Respondent No. 1.

Date of hearing: 16th February, 2000.

JUDGMENT

At the direction of the Additional Deputy Commissioner (General) Mandi Baha‑ud‑Din, Mr. Allah Ditta Warraich, Magistrate 1st Class, Mandi Baha‑ud‑Din raided the agency of Sui‑Gas Cylinders being run by Messrs Son Gas Mandi Baha‑ud‑Din under the supervisions of Khalid Iqbal Ghauri petitioner. The allegation was that the cylinders were not being sold and were being hoarded for black‑marketing. Mr. Allah Ditta Warraich, Magistrate 1st Class, Mandi Baha‑ud‑Din in the company of his Reader Muhammad Aslam and Naib‑Court Muhammad Arshad Constable No.567 reached the aforesaid business place which was closed and was opened. About 25 cylinders were lying in the shop and the salesman Muhammad Afzal could not give. any reasonable reply as to why the cylinders had not been sold. Some cylinders were also placed on the street and the allegation was made that the flow of traffic was interfered with. Mr. Allah Ditta Warraich, Magistrate 1st Class, Mandi Bhah‑ud‑Din sent the complaint and on its basis F.I.R. No.799 dated 1‑12‑1999 was registered at Police Station City Mandi Baha‑ud‑Din under section 188 of Pakistan Penal Code and under section 3/7 of the Price Control and Prevention of Profiteering and Hoarding Act, 1977. Muhammad Afzal Salesman was arrested and he has been admitted to bail.

Feeling aggrieved Khalid Iqbal Ghauri petitioner has filed this writ petition for the quashment of the F.I.R. on the grounds that due to his failure for non‑supply of one cylinder at the desire of the Additional Deputy Commissioner (General), Mandi Baha‑ud‑Din he had to face the impugned situation through the registration of the criminal case. He contended in the writ petition that the allegations about the attraction of section 188 of Pakistan Penal Code and section 3/7 of the Price Control and Prevention of Profiteering and Hoarding Act, 1977 were not applicable against him. The comments were obtained from the District Magistrate, Mandi Baha‑ud‑Din who took up the stand that due to the hoarding of the gas cylinders made by the petitioner and placing some of the same in the thoroughfare he was liable in the matter and that the F.I.R. was got registered in accordance with law on correct allegations.
I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate‑General and gone through the record before me. A perusal of the statements of Muhammad Aslam Reader and Muhammad Arshad Constable No.567 who are the prosecution witnesses, has made out that they have not stated that some of the cylinders were lying on' the thoroughfare. Keeping in view this aspect of the matter section 188 of Pakistan Penal Code is .not applicable. Even otherwise placing of some of the material out of a shop in the aforesaid manner would not come within the purview of encroachment for which the prohibitory order was passed by the Assistant Commissioner/Sub‑Divisional Magistrate, Mandi Baha‑ud‑Din on 21‑11‑1999.
About the existence and attraction of section 3/7 of the Price Control and Prevention of Profiteering and Hoarding Act, 1977, suffice it to express that 25 cylinders found in a shop would not make out that the same were being hoarded by the shopkeeper. At the District Headquarters Mandi Baha‑ud‑Din this much number is not alarming for the attraction of aforesaid penal sections. Even otherwise there is no material in black and white and direct oral proof that the sale of the Sui Gas Cylinder(s) was refused to the customer(s) and that the hoarding was being made for wrongful gain of the petitioner or wrongful loss to any customer. Moreover, no order in the matter to be followed by the petitioner was passed in terms of section 3 of the aforesaid Act, 1977. This being the position I can safely hold that it is a case of harassment of the petitioner which seems to have been made by the complainant for the reasons best known to him and obviously at the command of his superior officer. Consequently, I hold that the registration of the impugned F.I.R. is the outcome of mala fides which cannot remain in the field and is liable to be quashed.
For what has been said above, I accept this writ petition with costs and quash F.I.R. No.799 registered at Police Station city Mandi Baha‑udDin on 1‑12‑1999.

N.H.Q./K‑15/L F.I.R. quashed

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1069 #

2000 P Cr. L J 1093

[Lahore]

Before Dr. Munir Ahmad Mughal, J

IMRAN ‑‑‑ Petitioner

versus

THE. STATE‑‑‑Respondent

Criminal Appeal No.882/B of 1999, decides: on 19th May, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/324/34‑‑‑Bail, grant of‑‑Accused according to the uncontroverted School Leaving Certificate was below 16 years of age on the date of occurrence and his case was covered by first proviso to 5.497, Cr.P.C.‑‑‑Factum of "Ghairat" had also come on the record during investigation which had made the case one of further inquiry‑‑Bail was allowed to accused in circumstances.

Malik Muhammad Shabbir Langrial for Petitioner.

Zawar Hussain Qureshi for the State.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1084 #

2000 P Cr. L J 1095

[Lahore]

Before Khawaja Muhammad Sharif, J

Mst. SAHIBZADI and 8 others‑‑‑Petitioners

versus

MUHAMMAD RAMZAN and 2 others‑‑‑Respondents

Criminal Miscellaneous Nos.98/Q, 1 and 2 of 1998, decided on 12th October, 1998.

Penal Code (XLV of 186(0)‑‑‑

‑‑‑‑S. 337‑F(v)/337‑F(ii)/337‑F(i)/148/149‑‑‑Criminal Procedure Code (V of 1898), S.561‑A=‑‑Quashing of order‑‑‑Accused had been summoned in the private complaint by the Magistrate by means of the impugned order to face the trial‑‑‑Quashing of the said order was sought by the accused on the grounds that the injuries alleged to have been caused to the witnesses in the complaint were found by the Medical Board to be self‑suffered and that the complaint case had been filed after an unexplained delay of two years as a counterblast to the F.I.R. got registered by the accused against the complainant party which was pending‑‑‑Accused were directed to appear before the Magistrate and make an application before him under S.249‑A, Cr.P.C. which was an adequate remedy‑‑‑Magistrate was directed to decide the said application within a fortnight‑‑Petition was disposed of accordingly.

1997 SCMR 292; 1989 PCr.LJ 478; 1989 PCr.LJ 913 and 1993 PCr.LJ 2540 ref.

Malik Muhammad Shabbir Langrial for Petitioners.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1093 #

2000 P Cr. L J 1100

[Lahore]

Before Muhammad Naseem Chaudhri, J

Mst. AASIA SULTANA and another‑‑‑Petitioners

versus

FAYYAZ AMIN and another‑‑‑Respondents

Criminal Miscellaneous No.209‑Q of 1999, heard on 23rd February, 2000.

Penal Code (KLV of 1860)‑‑‑

‑‑‑S. 406/420/494/496/506‑‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑‑Quashing of proceedings‑‑‑Misappropriation‑‑‑Dispute between the parties who had remained as spouses‑‑‑Gifts given to the wife by the husband could not be termed under the trust of the wife bringing the same within the purview of misappropriation‑‑‑Presentation of gifts in such state of affairs also could not be said to have been acquired through fraud‑‑‑Criminal remedy had been invoked by the complainant with mala fide intention to put the pressure upon the accused (wife) for the recovery of the amounts and ornaments‑‑‑Civil and criminal liabilities, no doubt, could be agitated and obtained simultaneously, but in a family matter the same could not be allowed and approved‑‑‑Continuation of the criminal proceedings against the accused in the Court of Magistrate were devoid of judicial propriety and the same were quashed accordingly‑‑‑Complainant, however; could proceed in the other matter pending before the Civil Court/Family Court for the recovery of the said amounts and ornaments.

Ch. Manzoor Hussain for Petitioners. Sardar Muhammad Ayyub Khan Lodhi for Respondent No. 1. Miss Rukhsana Tabassam for the State.

Date of hearing: 23rd February, 2000.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1095 #

2000 P Cr. L J 1103

[Lahore]

Before Zafar Pasha Chaudhry, J

ABDUL WAHEED and another‑‑‑Petitioners

versus

THE STATE and 3 others‑‑‑Respondents

Writ Petition No.25139 of 1998, heard on 15th February, 2000.

Penal Code (XLV 1860)‑‑‑

‑‑‑‑S. 337‑A/452/440/148/149‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Quashing of proceedings‑‑‑Despite a large number of adjournments having been granted to the prosecution, not a single prosecution witness could be examined in the case‑‑‑Assertion that the complainant or his witnesses were prevented by the accused from appearing in the Court was not acceptable in absence of any relevant material‑‑‑Inordinate delay of more than nine year, in the case did amount to abuse of process of Court‑‑‑Accused had undergone agony and ordeal of long trial and other proceedings which could not be kept pending for inordinate period‑‑‑Proceedings pending in the Court of Magistrate against the accused were quashed in circumstances.

Rana Abdul Majeed for Petitioners.

M. Bilal Khan, Addl. A.‑G. for the State.

Nisar A. Mujahid for Respondents.

Date of hearing: 15th February, 2000.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1100 #

2000 PCr.l.j. 1116

[LAHORE]

Before Riaz Kavani, J

IJAZ AHMAD alias ALI----Appellant

Versus

THE STATE----Respondent

Criminal Appeal No. 1185 of 1999, heard on 17th February 2000.

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

S---311---Term Fisad fil-Arz---Connotation---Tazir after waiver of compounding of right of Qisas in Qatl-I-Amd---Intent and import Section 311 P.P.C intends to inflicr punsishment on the accused who notwithstanditn the composition or waiver by Walsi have to be visited with some pentalty not only for their propensity forwards criminal acts but their mode barbaric execution---Terms Fisad-fil-Arz included in S.311 P.P.C denotes only those persons who fail within its ambit and can be convicted and pnished under the section ---If Courts are invested with powers that in each and every case, irrespective of the composition and waiver by Walsi they can punish the accused then Sc. 3097 310 P.P.C. would become redundant and superflus which is abborred by the Legislature.

(b)Penal Code (XLV of 1860)

----S.311---Criminal Procedure Code (V of 1898). S 345 (6) Fisad-fil-Arz------Sentence of Tazir awared to accused after waiver or right of Qisas in qail-Amd-Validity---No evidence was available on record either of previous conviction of accused or his being habitual or professional criminal As accused not doubts had killed his sister and a brutal and attoctons manner but the brutal havver if killing had to be read in confunction with his being a habitual of professional criminal accusxed therefore could not be termed as Fisad-fil-Arz by any streth of imagination reasoning arrived at by the Trtial Court migh be appreciable and laudable from a moreal angle but the view taken by trial court was not backed by law conviction of accused by Trial Court under S. 311 P.P.C. and sentedn hm no 14 years R.I. as Tazir thereunder after waiver of the right of Qisas by the heirs of the deceased awere not maintainable and the same were set aside in circumstances---Accused was acquitted under S. 345(6) Cr.P.C. accordingly

Sultan Mehmood Dar for Appellant.

Kh. Shahazad Saleem with Ch. Nasim Sabir Adl A.G. for the State.

Date of hearing :17th February, 2000.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1103 #

2000 PCr.L.J 1120

[LAHORE]

Before Raja Muhammad Sabir,J

Mst. KALSOOM and 2 others_____Petitioners

Versus

THE STATE----Respondent

Criminal Miscellaneous No. 493/B of 1999, decided on 12th March 1999.

Criminal Proedure Code (V of 1898)

----S. 498---Offence of Zina (Enforcement of Hudood0 Ordinance (VII of 1979) s. 16 Pre-arrest bail------Accused had not approached Sessions Court for grant of pre-arrest bail and had not furnished any reasonable explanation for not doing so No justification was available for entertaining the petition for pre-arrest bail directly in the High Court without approaching the Court of first instance No valid justification for not moving the Sessions Court in the matter having been shown the petition was dismissed in limine.

Malik Muhammad Ali and Syed Asif Raza Gillani for Petitioenrs, Khadim Nadeem Malik Addl. A.G. for the State

Malik Muhammad Shabbir Langrial for the Complainant.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1116 #

2000 P Cr. L J 1121

[Lahore]

Before Nasim Sikandar, J

MUHAMMAD IQBAL‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1923/13 of 1999, decided on 28th October, 1999.

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

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑‑Bail, grant. of‑‑‑Accused had been found innocent in most of the investigations by the police and his case needed further inquiry‑‑‑No useful purpose could be served by detaining the accused in jail for an indefinite period as according to the prosecution, the submission of challan in Court was not yet in sight muchless to say of the completion of the trial‑‑Accused was admitted to bail in circumstances.

Malik M. Shabbir Langrial for Petitioner, Mian Kamran‑Bin‑Latif for the, State.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1120 #

2000 P Cr. L J 1125

[Lahore]

Before M. Naeemullah Khan Sherwani and Bashir A. Mujahid, JJ

MUHAMMAD TUFAIL alias MUSHTAQ AHMAD and 2 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.50 of 1999, heard on 24th January, 2000.

Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑Ss. 302(a) & 302(b)‑‑‑Appreciation of evidence‑‑‑Non‑production of independent witnesses from the locality of occurrence by the prosecution had cast a reasonable suspicion upon genuineness and correctness of its story‑‑‑Eye‑witnesses during the course of cross‑examination had told mass of lies relating to material .facts‑‑‑High‑ranking police officials after investigation had unanimously found the accused not involved in the matter‑‑‑Motive for the occurrence was not proved‑‑‑Ocular testimony was improbable and contrary to the course of nature and the prosecution case was full of real doubts‑‑‑Accused were acquitted in circumstances.

Noor Ilahi v. The State PLD 1996 SC‑708 ref.

Sahibzada Farooq Ali Khan for Appellant.

Sh. Muhammad Rahim for the State.

Muhammad Bashir Khan for the Complainant.

Date of hearing: 24th January, 2000.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1121 #

2000 P Cr. L J 1136

[Lahore]

Before M. Naeemullah Khan Sherwani, J

MUSHTAQ AHMAD‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 195 and Murder Reference No. 143 of 1997, heard 'on 21st December, 1999.

(a) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑Ss. 394/34, 302 & 324‑‑‑Appreciation of evidence ‑‑‑F.I.R. was not recorded after preliminary investigation . and the investigation ensuing therefrom was not, in any way defective‑‑‑Accused having been nabbed soon after the occurrence, no question of his identity could arise as he had been produced before the police alongwith the pistol and the ammunition with which he was armed‑‑‑Minor discrepancies in evidence in such‑like cases could not assume any significance which could be easily ignored‑‑Prosecution witnesses were the natural witnesses of the occurrence who had received injuries at the hands of the accused during the course of incident‑‑Ocular testimony was fully corroborated by medical evidence and was wholly reliable‑‑‑No mitigating circumstance was available on the file in favour of accused‑‑‑Convictions and sentences of accused including the sentence of death were confirmed in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑Ss. 394/34, 302 & 324‑‑‑Appreciation of evidence ‑‑‑‑F.I.R. recorded after preliminary investigation‑‑‑Validity‑‑‑Recording of :7.i.R. after preliminary investigation is an irregularity which would not .affect or diminish in any manner sanctity attached to it.

‑‑‑‑Ss. 394/34, 302 & 324‑‑‑Appreciation of evidence‑‑‑Solitary eyewitness‑‑‑Implicit reliance can be placed on a solitary eye‑witness if nothing inherently improbable or contradictory is found in his statement and he has no ample motive, grudge or grouse to give false evidence against the accused.

Malik Muhammad Rafiq Rajwana for Appellant.

Sh. Muhammad Rahim for the State.

Date of hearing: 21st December, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1125 #

2000 P Cr. L J 1149

[Lahore]

Before Amanullah Abbasi, J

Mst. KAUSER PARVEEN alias PARVEEN SHAH‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1093 of 1998, decided on 14th January, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.397/34‑‑‑Bail, grant of‑‑‑Accused had remained in jail for more than one year and nothing was on record to show that accused was hardened, desperate or dangerous criminal‑‑‑Bail was granted to accused on ground of statutory delay.

Mumtaz Ali Khan Deshmukh for Applicant.

Sharafat Ali Khan for the State.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1136 #

2000 P Cr. L J 1164

[Lahore]

Before Raja Muhammad Khurshid, J

MUHAMMAD BOOTA‑‑‑Petitioner

versus

THE STATE and another‑‑‑Respondents

Writ Petition No.11564, Civil Miscellaneous Nos. l and 2 of 1999, decided on 24th June, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 420/468/471/406‑‑‑Criminal Procedure Code (V of 1898), Ss.516‑A & 517‑‑‑Constitution of Pakistan (1973), Art.l99‑‑‑Constitutional petition‑‑Pendency of civil and criminal proceedings‑‑‑Dispute regarding ownership of tractor in question was pending adjudication in Court of civil jurisdiction and a criminal case was also pending in which final order was to be made whether or not transfer of tractor was made on forged documents or it was a genuine transaction‑‑‑Matter being pending before Competent Courts of criminal as well as civil jurisdiction, orders passed by Illaqa Magistrate and confirmed by revisional Court, would not call for interference in Constitutional jurisdiction of High Court

Ch. Muhammad Zahoor Nasir for Petitioner.

Date of hearing: 24th June, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1149 #

2000 P Cr. L J 1256

[Lahore]

Before Sheikh Abdur Razzaq, J

RIASAT KHAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 199. of 1997, heard on 15th March, 2000

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Both eye‑witnesses had corroborated prosecution version in all respects‑‑‑Prosecution witnesses were cross-examined at length, but no material contradictions had been brought on record by accused‑‑‑Doctor, who conducted post‑mortem examination of deceased found ten injuries by fire‑arm on his person‑‑‑Collective effect of said injuries was sufficient to cause death of deceased in ordinary course of nature‑‑‑Report of Forensic Science Laboratory had clearly shown that empty recovered from place of occurrence had been fired from gun which was recovered at the instance of accused and was taken into possession by police‑‑‑Occurrence having taken, place in broad daylight, there was no question of false implication as well as of substitution‑‑‑Fact, that accused was responsible for causing intentional murder of deceased, had fully been proved beyond any shadow of doubt‑‑‑Accused, in circumstances, had rightly been convicted and sentenced in accordance with law.

Mubeen Ahmad for Appellant, Aftab Ahmad for the State.

Date of hearing: 15th March, 2000,

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1164 #

2000 P Cr. L J 1262

[Lahore]

Before Muhammad Naseem Chaudhri, J

BABAR‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1618/B of 2000, heard on 14th April, 2000.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34/109‑‑‑Bail, grant of‑‑F.I.R. showed no mention of motive of occurrence which was unwitnessed one‑‑‑Supplementary statement of complainant with regard to conspiracy of accused. for murdering or cutting nose of complainant could not be equated with F.I.R. recorded under S.154, Cr.P.C. which would not prove to be corroborative piece of ‑ evidence‑‑‑Ingredient of extra judicial confession allegedly made by accused had to be viewed with caution at bail stage especially when accused had not practically participated in the occurrence‑‑Presence of accused after incident near place of occurrence was not enough to disentitle him to enjoy concession of bail for having been shown to be armed with any weapon at that time while no recovery of any weapon had been attributed to him‑‑‑Case of accused was consistent with co-accused already released on bail‑‑‑Accused was entitled to be admitted to bail as rule of consistency was attracted to his case in circumstances.

Muhammad Yousaf v. The State 1983 SCMR 102(1) ref.

(b) Precedent‑‑‑

‑‑‑‑ Due regard must be given to dictum enunciated by superior Courts in different matters.

‑‑‑‑S. 497‑‑‑Grant of bail‑‑‑Principle‑‑‑Bail application had to be disposed of within framework of S.497, Cr.P.C.‑‑‑Accused had locus standi to move bail application which was competent and could be accepted or rejected within limits of law, even after he was challaned.

Ch. Fayyaz Ahmad for Petitioner.

Qazi Zafar Iqbal for the State.

Nasrullah Khan Dhillun for the Complainant., Date of hearing: 14th April, 2000.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1256 #

2000 P Cr. L J 1266

[Lahore]

Before Muhammad Nawaz Abbasi and Sheikh Abdur Razzaq, JJ

HAFIZ MUHAMMAD SHABBIR‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.210/T of 1'999, decided on 22nd March, 2000.

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

‑‑‑‑S. 10/16‑‑‑Appreciation of evidence‑‑‑Statement of complainant with regard to occurrence found corroboration from oral statement of victim girl as well as prosecution witness who found victim girl weeping in stairs of mosque and had found her Shalwar stained with blood‑‑‑Ocular version further stood corroborated from statement of lady doctor who examined the victim girl‑‑‑Report of Chemical Examiner with regard to swabs had proved that she was subjected to Zina‑‑‑Accused was capable of committing offence as he was potent as per his own statement‑‑‑Contention of accused that non-examination of any independent witness of locality had created doubt in prosecution version, was repelled because in given circumstances there was no question of examining any independent witness as it had come on record that victim was detained by accused on some pretext while other students were let off‑‑‑Accused had alleged that his appointment in mosque was not liked by father/complainant of victim who belonged to other sect and due to that reason he had been implicated‑‑‑Such allegation of accused was not only devoid of any force, but also did not appeal to reason as no father would put .honour of his daughter at stake by imputing such act to his daughter‑‑Accused neither produced any defence evidence nor chose to examine himself under S.340(2), Cr.P.C.‑‑‑Prosecution having succeeded in establishing its case against accused, Trial Court had rightly convicted the accused‑‑Sentence awarded by Trial Court was reduced keeping in view age of accused accordingly.

Malik Muhammad Nawaz Khan for Appellant.

Syed Sajjad Hussain Shah, A.A.‑G. for the State

Date of hearing: 22nd March, 2000.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1262 #

2000 P Cr. L J 1270

[Lahore]

Before Iftikhar Ahmad Cheema and Syed Zahid Hussain, JJ

MAQBOOL AHMAD alias MAQBOOLI‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal (SCT) No..27 of 1995, decided on 13th December, 1999.

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

‑‑‑‑Ss. 10(3) & 11‑‑‑Appreciation of evidence‑‑‑Case against accused as per F.I.R. was that a minor girl aged 9/10 years, who was going to cut grass, was allured by accused who called her on the pretext of giving her mangoes‑‑‑When the girl went near him, he forcibly took her to nearby sugarcane field and on point of knife committed Zina‑bil‑Jabr with her‑‑‑Hue and cry of victim girl who was crying/lamenting out of pain, attracted complainant and other prosecution witnesses who were working in nearby fields‑‑‑Said persons rushed to the spot and saw accused committing sexual intercourse with the victim‑‑‑Victim girl made a consistent and convincing statement and accused, despite slashing cross‑examination failed to elicit anything which could tend to discredit her testimony which stood further fortified by statement of prosecution witness‑‑‑Ocular evidence received corroboration from medical evidence and report of Chemical Examiner‑‑Complainant, who was father of victim girl, was won‑over had resiled from his version which he made in F.I.R. wherein he alleged that he had seen accused committing Zina with his daughter, but during trial he took a complete somersault arid gave deliberate concession to accused simply to save him for monetary gain‑‑‑Complainant had stated in trial that he did not see accused committing rape with his daughter‑‑‑Prosecution case stood proved by statement of victim. girl who was star prosecution witness, even if evidence of complainant was discarded‑‑‑Victim was subjected to searching cross‑examination, but nothing was on record which could tend to discredit her testimony‑‑‑In absence of any previous animus, hostility or ill‑will against accused, no reason was found as to why she should trump up false case against the accused‑‑‑Offence of committing rape on victim girl having fully been proved' by ocular, medical and circumstantial evidence against accused, he was rightly convicted and sentenced under S.10(3) of Offence of Zina (Enforcement of Nudood) Ordinance, 1979, but he could not be convicted and sentenced under S.11 of the said Ordinance because victim girl on her own saying was allured by accused on pretext of giving her mangoes and she followed the accused to the sugarcane field of her own accord and could not be said to have been kidnapped or abducted by accused‑‑‑In absence of element of force or deceit for removal of girl, offence of abduction under S.11 of said Ordinance, was not established against accused‑‑‑Conviction and sentence awarded to accused under S.11 of the Ordinance were set aside, in circumstances.

PLD 1993 FSC 21; 1987 SCMR 1167; 1989 SCMR 438 and 1997 PCr.LJ 1261 ref.

Malik M.H. Zafar Missan for Appellant.

Atta Muhammad Baluch for the State.

Date of hearing: 9th December, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1266 #

2000 P Cr. L J 1280

[Lahore]

Before Shaikh Abdur Razzaq and Zafar Pasha Chaudhry, JJ

AMANAT KHAN and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.221 and Criminal Revision No.93 of 1998, heard on 8th ,March, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Prosecution version as contained in F.I.R. showed that first motive behind occurrence was that a cousin of accused was abducted by deceased who later on contracted marriage with her and other limb of motive was that deceased suspected accused responsible for committing theft of bullock of his nephew‑‑‑Prosecution had not brought on record any convincing evidence to the extent of motive pertaining to theft of bullock of nephew of deceased, but other limb of malice with regard to abduction by and marriage of deceased with cousin of accused stood admitted even by accused while recording statement under S342, Cr.P.C.‑‑Admission on part of accused had proved that they had a case of grievance to commit offence‑‑‑Evidence of recovery of rifle, empties and Report of Forensic Science Laboratory, only had proved participation of accused, but it did not advance prosecution case regarding participation of co‑accused‑‑Medical evidence had further corroborated prosecution version only to the extent of participation of accused‑‑‑Evidence on record had fully proved that only accused was responsible for causing murder of the deceased‑‑Prosecution having failed to prove participation of co‑accused in commission of offence, conviction and sentence awarded to co‑accused by Trial Court were set aside and he was ordered to be released‑‑‑Prosecution having succeeded in bringing home guilt to. accused beyond any shadow of doubt, his conviction and sentence were upheld.

Sh. Zamir Hussain for Appellants.

Malik Rabnawaz Noon for the Complainant

Raja M. Ayyub Kayani for the State.

Date of hearing: 8th March, 2000.

JUDGMENT

SHEIKH ABDUR RAZZAQ, J.‑‑‑ Instant appeal is directed. against the judgment, dated 17‑9‑1998 passed by Ch. Ghulam Rasool, Additional Sessions Judge/Judge, Suppression of Terrorist Activities (Special Court), Attock whereby he convicted Amanat Khan accused/appellant under section 302/34, P.P.C. and sentenced him to death and compensation of Rs.2 lacs or in default thereof to undergo R.I. for 2 years. He further convicted Umar Hayat accused/appellant under section 302(b), P.P.C. and sentenced him to imprisonment for life and compensation of. Rs.1 lac or in default thereof to undergo R.I. for one year.

Briefly stated the facts are that on 7‑11‑1994 at 7‑30 p.m. Muhammad Iqbal complainant (P. W.11) alongwith Lal Khan. (P. W.12) were present in the street outside the house of his brother Noor Ahmed, Lumberdar and were talking. His brother Noor Ahmed after offering Isha prayer in the Masjid Malkanwali, was returning towards his house. When he reached in the street near the house of Liaqat Ali, the electric bulb was on. All of sudden; Amanat Khan son of Munawar Khan and Umar Hayat son of Ghulam Khan, armed with rifles, appeared raising Lalkaras to his brother Noor Ahmed that they would teach him lesson for not only abducting and contracting marriage with Mst. Atlas Bibi but also charging them for committing the theft of bullock of his nephew Abdul Ghani. Thereupon, they started firing and the bullets landed on the right shoulder near the neck, left shoulder and left ankle. Noor Ahmed consequently, fell on the spot. Seeing this sad incident both the complainant and Lal Khan raised hue and cry upon which assailants fled away from the spot. On hearing fire shots Ghulab Khan son of Noor Khan and various other residents of the locality came on the spot. Noor Ahmed was then removed to his house, whereafter a while he succumbed to the injuries.
Motive as disclosed in the F.I.R. leading to this sad incident is that firstly Noor Ahmed had abducted Mst. Atlas Bibi, a cousin of Amanat Khan accused, and thereafter, had solemnized marriage with her. And secondly Noor Ahmed had disgraced Amanat Khan by levelling false charge of committing the theft of bull of his nephew Abdul Ghani. This annoyed the accused who, in furtherance of their common intention committed the murder of Noor Ahmed. Leaving the dead body under the supervision of family members, he left for lodging the report.
Muhammad Zamir, S.‑I. (P.W.13) was posted as S.‑I.. at Police Station Attock Khurd on 7‑11‑1994. On the statement of Muhammad Iqbal, he jotted down F.1.R. ,Exh.P.I. and thereafter, made for the place of occurrence, where he prepared statement of injury of Noor Ahmed deceased Exh.P.J. and inquest report Exh.P.K. He dispatched the dead body for postmortem examination, through Muhammad Mushtaq, Constable (P.W.6). On the same day (8‑11‑1994) he secured blood‑stained earth from the place where deceased fell down and prepared memo. Exh.P.A. He also secured 8 empties of 222 rifles Exh.P.l/1‑8 vide memo. Exh.P.B. Abdul Ghani (P.W.4) and Azim Khan P.W. (not produced) attested the said memos. On the same day Muhammad Mushtaq Constable (P.W.6) produced last‑worn blood‑stained clothes of the deceased P.2 to P.4 which he secured vide memo. Exh.P.E: On 9‑11‑1994 he made inquiry regarding injury No.6 on the person of deceased from the doctor vide application Exh.P.D. which contains his report,.Exh.P:D./1. He handed over the parcels to Moharrir and recorded the statements of witnesses. On 12‑11‑1994 , he took Muhammad Hanif, Draftsman (P. W.8) to the place of occurrence who inspected the same as per his direction and delivered the site plans Exhs.P.F. and Exh.P.F./1 on 20‑1.1‑1994. On 15‑I1‑1994 he arrested accused Amanat Khan who on. 18‑11‑1994 led to the recovery of 222 rifle P.6 which he secured vide memo. Exh.P.G. On 18‑11‑1994 he arrested accused Umar Hayat who on 22‑11‑1994 led to the recovery of 222 rifle P.7 which he secured vide memo. Exh.P.H. He then completed the investigation and got the accused challaned.
A charge under section 302/34, P.P.C. was framed against the accused/appellants to which they pleaded not guilty and claimed trial.
In order to bring home guilt to the ,accused, prosecution examined P.W.1 Sardar Bux, Constable who, on` 16‑11‑1994 was given two sealed parcels containing blood‑stained earth and empties by Sana Ullah, A.S.‑I. for delivering the same in the office of Chemical Examiner and Forensic Science Laboratory which he delivered there intact on 17‑11‑1994. P.W.2 Khalid Mehmood, Constable was given a parcel containing 222 rifles on 29‑11=1994 by Sana Ullah A.S.‑I., Moharrir for onward transmission to the office of Forensic Science Laboratory, which he delivered there on 30‑11‑1994. P.W.3 Muhammad Iqbal Khan identified the dead body on 8‑11‑1994 at the time of autopsy. P.W.4 Abdul Ghani is the marginal witness of memo. Exh.P.A. by which blood‑stained earth was secured from the place where the deceased had fallen on the ground: He is also witness of memo. of recovery Exh.P.B. pertaining. to the 8 empties of 222 rifles Exh.P.l/1‑8. P.W.5 Dr. Wasim Ahmed conducted the post‑mortem Dr: Wasim Ahmed conducted the post‑mortem examination on the dead body of Noor Ahmed deceased on 8‑11‑1994 at 7‑00 a.m. and found the following injuries on his person:‑‑

(1) A fire‑arm entry wound 1 c.m. x 1 c.m. on outer margin, of left shoulder blackening was present. The track of the wound was going towards right shoulder.

(2) An exit wound 1‑1/2 c.m. x 2 c.m. on right side of neck four inches away from outer margin of right shoulder. Corresponding marks of wound were on Qamiz.

(3) An entry wound 1 c.m. x 1 c.m. on outer side of left leg above left knee.

(4) An exit wound on inner side of leg above left knee.

(5) Abrasion 2 c.m. x 1 c.m. on right side of middle of nose.

(6) An abrasion 3 c.m. x 1 c.m. on left side of neck.

In his opinion cause of death was injury No.1 caused by fire‑arm resulting in hemorrhage, shock and cardio pulmonary failure. In the ordinary course of nature said injury was sufficient to cause death which was ante‑mortem in nature. Probable time which elapse between injuries and death was immediate whereas between death and post‑mortem examination was about 10/14 hours. After the post‑mortem examination he handed over the dead body alongwith copy of post‑mortem examination report as well as last‑worn clothes of the deceased to the police Exh.P.C. is the correct carbon copy of post‑mortem examination report whereas Exh.P.C./1 is the pictorial sketch of the, same. He .further deposed that on 9‑11‑1994 an application Exh.P.D. was moved by the Investigating Officer seeking inquiry about injury No.6, upon which his report Exh.P.D./1 shows that possibility could not be ruled out that injury No.6 could be caused by .fire‑arm. P.W.6 Muhammad Mushtaq, constable escorted the dead body on 8‑11‑1994 for post‑mortem examination and later on produced the last‑worn clothes of the deceased before the Investigating Officer, who secured it vide memo. Exh.P.E. P.W.7 Sana Ullah Moharrir/A.S.‑I. deposed about keeping the parcels containing blood‑stained earth, empties, 222 rifles and thereafter, delivering the same to Sardar Bux, Constable (P.W.I) and Khalid Mehmood, Constable (P.W.2) for onward transmission to the office of Chemical Examiner and Forensic .Science Laboratory. He further deposed that on 8‑12‑1994 he produced 222 rifle before the Armour for his inspection and report. Thereafter, he never sealed the said rifle. P.W.8 Muhammad Hanif Draftsman deposed that on 12‑11‑1994 he visited the place of occurrence as per direction of police in the presence of witnesses, prepared site plan Exhs.P.F. and P.F./1 and handed over the same to the Investigating Officer on 20‑11‑1994 and these bear his signatures. P.W.9 Muhammad Ashraf is witness of recovery alongwith Aurang Zaib P.W. (not produced) of 222 rifle P.5 alleged to have been produced by accused/appellant Amanat Khan and secured vide memo. Exh.P.G. P.W.10 Khurshid Ahmed is another witness of recovery of 222 rifle P.7 alleged to have been recovered at the instance of Umar Hayat accused and secured vide memo. Exh.P.H. P.W.11 Muhammad Iqbal/complainant is scriber of F.I.R. Exh.P.I. and has corroborated his version appearing therein. P.W.12 Lal Khan is an eye‑witness of this occurrence and has corroborated the prosecution version. P.W.13 Muhammad Zamir, S.‑I. is the Investigating Officer whose evidence has already been discussed above. The learned D.D.A. produced the reports of Chemical. Examiner, Serologist and Forensic Science Laboratory Exhs.P.L., P.M. and P.N. respectively, and thereafter closed the prosecution case.
When examined under section 342, Cr.P.C. accused Amanat Khan admitted that Mst. Atlas Bibi was abducted by the deceased and later on solemnized marriage with her. He denied the other allegation of the prosecution and stated that he had been implicated in this case falsely. Similarly the accused Umar Hayat admitted the factum of abduction of Mst.. Atlas Bibi at the hands of Noor Ahmed deceased and of his marriage with the said' lady. He stated that deceased was a man of questionable character .and had several enemies, due to his nefarious activities. The accused Amanat Khan produced documents Exhs.D.A. and D.D. to D.N. whereas Umar Hayat produced documents Exhs.D.B. and D.C. and ,thereafter closed their defence evidence.
After going through the evidence produced by the parties, the trial Court convicted and sentenced the accused/appellants vide judgment under appeal. Alongwith this appeal Criminal Revision No.93' of 1998 has also been filed for enhancement of compensation in respect of respondent No. l and for enhancement of sentence in respect of respondent No.2. As both these appeal and revision arise out of the same judgment so these are being disposed of by this single judgment.
We have heard the learned counsel for the parties and have gone through the record with their assistance.

Learned counsel for the appellants has assailed the findings of the trial Court regarding motive aspect of the prosecution version. ‑He contended that as per F. I. R. one of the motives ascribed to the deceased is that. he had levelled false charge of theft of the bull of Abdul Ghani against accused Amanat Khan; that admittedly no case regarding said theft was ever got registered with police, as such said motive fizzles out and at the same time creates doubt in the prosecution story. ,He next argued that prosecution has tried to seek corroboration from evidence of recovery of rifle at the instance of accused. But here again prosecution has failed to‑prove the participation of Umar Hayat accused as the report of Forensic Science Laboratory Exh.P.N. shows that empties P.1/1‑8 have been fired from the rifle recovered at the instance of amanat Khan only. The presence of Umar Hayat at the spot becomes further doubtful. He further submitted that even medical evidence which has come on record through the statement of Dr. Wasim Ahmed (P.W.5) reveals that injuries on the person of deceased have been caused by one fire‑arm as the description of the injuries clearly reveal that it has been caused by one fire‑arm and not by two fire‑arms, as alleged by the prosecution. Thus, the statement of Dr. Wasim Ahmed (P.W.5) further supports the defence version and makes the prosecution case doubtful regarding the presence of accused/appellant Umar Hayat on the spot. Regarding ocular account of the prosecution version, he contended that same stands corroborated by interested witnesses as Muhammad Iqbal (P.W.11) is brother of the deceased whereas Lal Khan (P.W.12) is also relative of the deceased as father of the deceased as well as Lal Khan (P.W.12) were cousin inter se. He thus, argued that there being no independent corroboration of the prosecution version, it is not safe to rely upon the testimony of interested and inimical witnesses (P. Ws. 11 and 12). He further contended that even the site plan Exhs.P.F. and P.F./1 makes the presence of eye‑witnesses doubtful. While explaining his contention, he submitted that accused are said to have fired from point No.3 when the deceased was at point No. I and eyewitnesses were at point No.4. He argued that had the eye‑witnesses been at point No.4, they must have been hit by the fire shots made from point No.3 which is in line with points Nos, l and 4.

Conversely, the learned counsel for the complainant', assisted by the learned counsel for the State supported the judgment under appeal.
Now let us analyze the evidence and see if the prosecution has succeeded in bringing home guilt to the accused/appellants or not. According to the prosecution version contained in F.I.R. Exh.P.1 the first motive behind this occurrence is that Mst. Atlas Bibi, a cousin of Amanat: Khan accused/appellant was abducted] by the deceased. who later on contracted marriage with her. The other limb of the motive is that deceased suspected Amanat Khan to be responsible for committing the theft of bullock of his nephew Abdul‑Ghani. There is no doubt that prosecution has not brought on record any convincing evidence to the extent of motive pertaining to the theft of bullock of Abdul Ghani, nephew of the deceased, yet the other limb of motive stands admitted even by the accused while recording their statement under section 342, Cr.P.C. wherein they have categorically admitted that deceased had abducted and later on solemnized marriage with Mst. Atlas Bibi, a cousin of Amanat Khan accused/appellant. This admission on the part of accused proves that they had a cause of grievance to commit this offence.
So far as the evidence pertaining to the recovery of 222 rifles from accused/appellants is concerned, prosecution has brought on record evidence of P.W.9 Muhammad Ashraf who is the witness of recovery of 222 rifle P.5 at. the instance of accused/appellant Amanat Khan. Prosecution has also examined P.W.10 Khurshid Ahmed who is witness of recovery of 222 rifle P.7 at the instance of Umar Hayat accused/appellant. Prosecution has also brought on record evidence in the form of Report of Forensic Science Laboratory Exh.P.N. Prosecution has also examined P.W.1 Sardar Bux, Constable who delivered the parcels of empties in the office of Forensic Science Laboratory on 17‑11‑1994 which were given to 'Sana Ullah, A.S.‑I. by Muhammad Zamir, S.‑I. for keeping the same in Malkhana. Prosecution has also examined Khalid Mehmood Constable (P.W.2) who delivered the parcels containing .222 rifles in the office of Forensic Science Laboratory on 30‑11‑1994. There is no doubt that prosecution has tried to prove the presence of Umar Hayat accused/appellant by alleging recovery of 222 rifle P.7 at his instance, yet it has failed to connect the said rifle with him i.e. accused/appellant Umar Hayat, as per Forensic Science Laboratory report Exh.P.N., empties P.1/1‑8 have been found to be wedded with 222 rifle P.5 recovered at the instance of Amanat Khan accused/appellant. None of the empties has been found. to be fired from 222 rifle P.7 recovered at the instance of accused/appellant Umar Hayat. Thus, the evidence of recovery of empties only proves the participation of Amanat Khan and it does not advance the prosecution case regarding the participation of Umar Hayat.
So 'far as the medical evidence which has come on record through the statement of Dr. Wasim Ahmed (P.W.5), it also shows that injuries caused to the deceased have been caused by one fire‑arm alone. The description of injuries on the person of deceased clearly reveals that these are the result of one fire‑arm. Admittedly injuries Nos.1 and 3 are wounds of entry whereas injuries Nos.2 and 4 are exit wounds. It is also fact that dimension of injuries Nos.1 and 3 is same. Similarly the width of injuries Nos.5 and 6 is also same. Since the dimension of injuries Nos. l and 3 is same and so the width of injuries Nos.5 and 6, so it is proved that these have been caused with one,. fire‑arm. Thus, even the medical evidence proves the participation of one person in the commission of this offence who is none else except Amanat Khan, as empties P.1/1‑8. have been fired from his rifle P.5. Thus, medical evidence further corroborates the prosecution version only to the extent of participation of accused/appellant Amanat Khan.
There remains the ocular account of the occurrence which has come on record through the statements of Muhammad Iqbal (P.W.11) and Lal Khan (P.W.12). Admittedly complainant is the real brother of the deceased and P.W.12 is his cousin. Both of them have corroborated prosecution version appearing in F.I.R. Exh.P.I. and have tried to prove the presence and participation of the accused/appellants in the commission of this offence. However, as their oral statements do not find support either from evidence of recovery or medical evidence, so we hold that it was only accused/appellant Amanat Khan who was responsible for causing the murder of deceased and further hold that prosecution has failed to connect the accused/appellant Umar Hayat with the commission of this offence.
In the light of facts narrated above, we are convinced that prosecution has failed to prove the participation of Umar Hayat accused/appellant in the commission of this offence beyond any shadow of doubt. Accordingly, we accept the appeal and set aside the impugned judgment of conviction, passed against Umar Hayat accused/appellant and acquit him. He is ordered to be released forthwith if not required in any other case.
So far as Amanat Khan accused/appellant is concerned, prosecution has succeeded in bringing home guilt to him beyond any shadow of doubt, so the appeal to the extent of Amanat Khan is dismissed.
For, reasons given above, we do not find any force in the Criminal Revision No.93 of 1998 and dismiss the same.

H.B.T./A‑54/L Order accordingly.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1270 #

2000 P Cr. L J 1287

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD RAFIQ and 2 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 127 and Criminal Revision No. 154 of 1993, heard on 20th March, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 307/325/34‑‑‑Appreciation of evidence‑‑‑Case against accused persons was that they grappled with injured person, threw him down and sat on his chest while his co‑accused gave blows on both the legs of injured with hatchets and as a result whereof both legs of the injured were fractured‑‑‑All injuries were on legs' of the injured‑‑‑Fact that accused had assaulted the injured person with intention to kill was not certain, but intention of accused to cripple injured person was evident in the manner the offence had been committed‑‑‑Case under S.325, P.P.C. had been made out against accused for which he had been rightly punished,

Muhammad Hussain and 4 others v. The State 1991 PCr.LJ 1081 and Fateh Muhammad and others v. The State 1994 MLD 1735 ref.

Sahibzada Farooq Ali for Appellants. Ch. Muhammad Anwar Khan for the Complainant. Anwarul Haq for the State.

Date of hearing:. 20th March, 2000.

JUDGMENT

This judgment shall dispose of Criminal Appeal No. 127 of 1993 and Criminal Revision No. 154 of 1993 as both emanate from the same judgment of the learned trial Court.

Shah Muhammad complainant on 23‑$‑1989 laid information at Police Station Saddar, Mian Channu that his brother Atta Muhammad is residing with him and they jointly cultivate their land. On 22‑8‑1989 at about 4‑30 p.m. when he and his brother were present in their house, Muhammad Rafique called the name of Atta Muhammad whereupon he .went out and Muhammad Rafique informed him that Hassan Bakhsh is present in his Bhaini and is calling him. Atta Muhammad accompanied Muhammad Rafique. When they reached the Pacca Road, Iqbal and Bashir armed with hatchets were present there and Muhammad Rafique raised a Lalkara that Atta Muhammad be taught a lesson for obtaining on lease the land which was being cultivated by the said persons. Muhammad Rafique grappled with Atta Muhammad and threw him down and sat on his chest while Iqbal and Bashir gave blows to both his legs with the hatchets, as a result whereon, his legs were fractured. Atta Muhammad raised a hue and cry whereupon the persons mentioned in the F.I.R. gathered. The motive was, thus, stated that 16 Acres land of Hassan Bakhsh was being cultivated by the accused persons and it was obtained on lease by Atta Muhammad and the accused bore a grudge on the said count and had caused injuries to Atta Muhammad. A case was initially registered under section 325/34, P.P.C. The matter was investigated and ultimately a challan was drawn up under section 307/326/34, P.P.C. against all the three accused persons and they were sent up for trial. Charges were framed. Evidence was recorded. All the three appellants were found guilty of commission of offence under section 307, P.P.C. and were convicted and sentenced to 7 years' R.I. each and a fine of Rs.25,000 each. On failure to pay the fine, they were to undergo simple imprisonment for one year each. In case of recovery of the fine, half of the amount recovered was ordered to be paid to the injured person. The accused were given the benefit of section 382‑B, Cr.P.C. vide a judgment, dated 6‑4‑1993.
The appellants have filed the present appeal (Criminal Appeal No. 127 of 1993) against the impugned conviction and sentence while the complainant has filed Criminal Revision No. 154 of 1993 for enhancement of the sentence.
Learned counsel for the appellants argues that even if all the P. Ws. are believed, a case under section 307, P.P.C. is not made out and only commission of offence under section 325, P.P.C. is proved. Carrying his point further argues that the conviction even under section 325, P.P.C. would not ‑be maintainable as the X‑Ray procedure was not conducted on the injured person.

Learned counsel for the respondent, on the other hand, not only supports the impugned conviction and sentence but prays that in view of the heinous nature of the crime, the punishment be enhanced.

I have gone through the records of the learned trial Court, with the assistance of learned counsel for the parties.

I find myself in agreement with the learned counsel for the appellants that keeping in view the overall circumstances of the case reflected by the evidence on record, it cannot be said with certainty that the appellants in fact assaulted the injured person with an intention to kill. This would be evident from the seat of injuries which are on the legs of the injured and notwithstanding the opinion of the Dr. Abdul Sattar P.W.6 that the injuries could have proved dangerous for life. Art intention to kill is not manifested on the record. The motive explained in the complaint also does not support the theory that the appellants attacked the injured person with intention to cause his death. However, at the same time the evidence on record does make out a case under section 325, P.P.C. I have carefully examined the evidence and I do not find any suggestion to any of the P.Ws. particularly P.W.6 that the injured person did not suffer multiple fractures on both his legs because of the assault made by the appellants. Learned counsel has referred to the cases of Muhammad Hussain and 4 others v. The State 1994 MLD 1735 and Fateh Muhammad and others v. The State 1991 PCr.LJ 1081, to support his plea that in the absence of X‑Ray procedure, the injuries be treated as simple. I find that in all the said cases, X-Ray procedure was in fact conducted but X‑Ray films and reports were not produced and proved. In the present case, all the witnesses and particularly Dr. Abdul Sattar P.W.6 has stated that the injured person did suffer multiple fractures on his legs and the injury was so evidence that no need for X‑Ray was felt. After putting a question in cross examination regarding the absence of X‑Ray procedure, no further question was put to this witness to question his opinion that the legs of the injured persons were in fact fractured. I, therefore, do not agree with the said argument of the learned counsel and find that the appellants are guilty of commission of offence under section 325, P.P.C. So far as the quantum of sentence is concerned, I find that the offence carried a maximum punishment of 7 years and the learned trial Court has competently awarded the same alongwith the fine imposed in the circumstances of the case. It is true than intention to cause death is not manifested on the part of the appellants but the intention to cripple the injured person is certainly evident in the manner the offence has been committed. One of them rode his chest while his accomplices inflicted injuries resulting in multiple fractures to the legs of the injured person.

So. far as the criminal revision is concerned, in view of my findings that the matter falls under section 325, P.P.C. and as maximum punishment has already been awarded, I do not find any force in the criminal revision.
As a result of the above discussion, both the Criminal Appeal ash well as Criminal Revision are dismissed.

H.B.T./M‑133/L Order accordingly.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1280 #

2000 P Cr. L J 1290

[Lahore]

Before Muhammad Naseem Chaudhri, J

STATE‑‑‑Petitioner

versus

S.P. TRAFFIC; LAHORE and others‑‑‑Respondents

Writ Petition No. 7121 of 1999 (Suo Motu), heard on 6th May, 1999.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 203 & 2A‑‑‑Taking of suo motu notice by High Court of a matter published in newspaper‑‑‑News item appeared in newspapers to the effect that an owner and driver of bus, after boarding off passengers, set at fire the bus due to continuous demand of illegal gratification by Police‑‑‑High Court observed that it was not an ordinary matter in social set‑up of a country run under a Constitution, containing Art.2A and remarked that matter required to be probed and looked into under supervisory jurisdiction of High Court‑‑‑Difficulties expressed by public at large were recorded by High Court for onward passing to the concerned Department and necessary action.

(b) Police Act (V of 1861)‑‑‑

‑‑‑‑S. 2‑‑‑Traffic Police‑‑‑Status‑‑‑Traffic Police was a part of Police Department and was not a separate Department‑‑‑Posting of any Police Officer in Traffic Police, could not be said to be on "deputation"‑‑Posting and transfer of any Police Officer to Local Police, Traffic Police and Central Intelligence Agency (C.I.A.) etc. had to be made by Competent Authority.

‑‑‑‑Arts. 2A, 199 & 203‑‑‑Suo motu notice by High Court‑‑‑High Court, on appearing a news item in the national press, about a driver/owner of a bus, setting his vehicle on fire, after unloading the passengers, as a protest against highhandedness and corruption of Traffic Police and against its unending demands of illegal gratification from him, took suo motu notice of the incident, summoned all concerned high Traffic Police Officers to discuss such traffic incidents and the steps to be taken to eliminate recurrence of such events in future resulting from corrupt practices of Traffic Police and its illegal activities‑‑‑Since the matter was very serious and pertained to the safety of the general public and morality of the Police Department and in view of many difficulties and complications pointed out by high Police Officers, who sought guidance from the Court in eradication of this evil practice, the High Court, after thorough discussion with the ‑concerned officers, directed that various remedial measures should be taken for the redressal and elimination of the prevailing evil practices‑‑‑Such measures elaborated and detailed and directions given.

`Syed Zulfiqar Ali Bokhari, A.A.‑G. (on Court's notice).

Riaz Hussain Kazmi for Respondents.

Date of hearing: 6th May, 1999.

JUDGMENT

A news item appeared in dally newspaper "Jang", Lahore and daily newspaper "Khabrain", Lahore on 21‑4‑1999, the gist of which is as l under:‑‑‑

"One person named as Aslam Pervaiz, owner and driver of Bus No.LES‑517, set at fire his said bus after boarding off the passengers. He raised hue and cry to the effect that the illegal gratification was . every time demanded from him whenever he brought the bus on road. "

Without prejudice, I chose to suo motu take up the matter and expressed that is not an ordinary matter in the social set‑up of an Islamic country being run under the Constitution of the Islamic Republic of Pakistan, 1973 containing Article 2A and observed that the matter requires to be probed and looked into under the supervisory jurisdiction of this Constitutional Court.
I called Syed Zulfiqar Ali Bokbari, A.A.‑G.. and directed him to cause the appearance of the following Police Officers before this Court on 22‑4‑1999 at 9.00 a.m.:‑‑

(i) the Superintendent of Police Traffic, Lahore

(ii) Traffic Sargeant of the area known as Ravi Road Niazi Shaheed Chowk, Lahore.

(iii) Ghulam Mustafa A.S.‑I. Traffic Lahore posted near Niazi Shaheed Chowk, Lahore against whom the allegation had been made by Aslam Pervaiz driver of Bus No. LES 517.

(iv) S.H.Q. Police Station Shafiqabad, Lahore, alongwith police file as it stands projected from the Newspapers that Aslam Pervaiz driver has been confined in Police Station Shafiqabad, Lahore. If any criminal case stands registered against Aslam Perviaz driver the police file shall also be produced by the S.H.O. Police Station Shafiqabad, Lahore.

The learned Assistant Advocate General was also asked to cause the appearance of Haji Muhammad Hayat, Secretary, Pakistan Motors Transport Federation, Lahore and Aslam Perviaz driver confined in Police Station Shafiqabad, Lahore alongwith the aforesaid Police Officer.
I had observed in my order dated 21‑4‑1999 that the cases of suicide as has happened in Chowk Aabpara, Islamabad and setting at fire the bus by its owner/driver must be considered with all the seriousness by all of us.
On 22‑4‑1999 Syed Zulfiqar Ali Bokhari, A.A.‑G:., Mr. Abdul Aziz Superintendent of Police (Traffic), Lahore. lmtiaz‑ur‑Rehman, Traffic Sergeant, Ravi Road, Lahore, Asif Javed Inspector/S.H.O., Police Station Shafiqabad, Lahore, Haji Muhammad Hayat, General Secretary, Pakistan Motors Transport Federation, Lahore, Ghulam Mustafa A.S.‑I. Traffic (under suspension) Ravi Road Lahore and Aslam Pervaiz driver and owner of Bus No.LES‑517 appeared.
During the proceedings conducted on 22‑4‑1999, at the very outset, Aslam Pervaiz owner and driver of Bus NO‑LES‑517 expressed that it was his misfortune that being disgruntled of the transport business he set at fire his bus and he clearly exonerated the police by stating that he would not like to take any action. against the police. I .expressed the view that it had happened because Aslam Pervaiz is not in a position to withstand the pressure of the Traffic‑Police, Lahore.
Since the matter pertains to the Traffic Police, Lahore I expressed that it is a matter of common scene and knowledge that the traffic violations are being conducted by the drivers and even on Shahrah‑e‑Quaid‑e‑Azam there are no boards of 'Silence Zone' as the horns are blown near important places like the Gate of the Governor House, Lahore High Court, G.P.O. in front of which there are different Courts of the Federal Government and National College of Arts etc. etc. I directed the Superintendent of Police (Traffic) Lahore to proceed in the matter as under:‑‑‑

(4) There must be allocation of 'Silence Zones' in different parts of the city and conspicuous boards shall be installed there. The excuse of budgetary constraint shall not be brought to the notice‑of this Court. This shall be done within a period of sixty days.

(ii) Within the territorial limits of 'Silence Zones' the horns shall not be blown by‑the drivers of the vehicles, commercial or private.

(iii) The rules and regulations of the cadre of the Traffic Police shall be brought before this Court on the next date of hearing. The Court is aware that there is the separate cadre of the Traffic Sergeants who are recruited as Traffic Sergeants and will continue. However, there is a common complaint that favourite persons are working in the Traffic Police for the last about one decade. 1f there is a separate cadre of the Traffic Police the particulars of the members of the Traffic Police in Lahore shall be submitted on the next date in a consolidated list.

(iv) The S.H.O. Police Station Shafiqabad, Lahore has submitted the police file of ‑case F.I.R. No. 148 registered on 20‑4‑1999 under section 427/435, Pakistan Penal Code. Aslam Pervaiz driver was arrested and on the basis of the case diary prepared on 21‑4‑1999 by the D.S.P. New, Anarkali Circle, Lahore no case is made out and he has directed the S.H.O. for the cancellation of the F.I.R. The S.H.O. shall get cancelled the F.I.R. under section 169/173 of the Code of, Criminal Procedure from the Court of the learned Area Magistrate and shall place the matter before this Court.

It seems that the S.H.O. Police Station Shafiqabad, Lahore expressed about the cancellation of 'case F.I.R. No.148 registered on 20‑4‑1999 at Police Station Shafiqabad, Lahore under section 427/435 Pakistan Penal .Code as the aforesaid Aslam Pervaiz driver/accused did not stand by his own protest published in the Newspapers as projected above who was given the undertaking that the S.H.O. shall get cancelled the F.I.R under section 169/173 of the Code of Criminal Procedure from the Court of the learned Area Magistrate Lahore.
This matter was directed to be listed for 6‑5‑1999.
Today Syed Zulfiqar Ali Bokhari, Assistant Advocate‑General, Mr. Riaz Hussain Kazmi D.S.P. (Traffic) Headquarters, Lahore, A.S.‑I. Javed Inspector/S.H.O. Police Station Shafiqabad, Lahore and Aslam Pervaiz owner/driver of Bus No.LES‑517 have appeared.
It is noteworthy that from 22‑4‑1999 to 5‑5‑1999 I received many letters from members of the public wherein they brought their difficulties to the notice of this Court. Some of the difficulties pertain to Lahore and around Lahore while some pertain to the far‑flung areas as well. The complaints against the Traffic Police and the transporters have been narrated therein.
The Provincial Government posted the Deputy Inspector‑General of Police (Traffic) Punjab during the pendency of this matter as this post was lying vacant. In place of the previous Superintendent of Police (Traffic) Lahore another Police Officer has been posted as Superintendent of Police (Traffic) Lahore. Forty‑two Inspectors (Traffic) have been transferred to different districts as well as Punjab Constabulary by the Deputy Inspector General of Police (Traffic) Punjab Lahore. The aforesaid actions of the Deputy Inspector‑General of Police (Traffic) have been taken as a source of satisfaction according‑ to the news material. His orders are being taken in good taste, positive sense and source of convenience by the public.
Keeping in view the difficulties of the public it is proper to enumerate the same with the desirability .of this Court for removal of the same. .
First of all I would refer to the statutes of the Traffic Police. The copies of some directions issued by the Government have been submitted by Mr. Riaz Hussain Kazmi, Deputy Superintendent of, Police (Traffic) Headquarters, Lahore. I would express that the Traffic Police is a part of the Police and is.not a separate department. The posting of any Police Officer in the Traffic Police cannot be said to be on "Deputation". It is narrated in ESTACODE published by the Government of Pakistan, Islamabad during the year 1983 under the Caption "Deputation" that "...according to the practice in vogue‑ a Government servant begins to be regarded as "Deputationist" when he is appointed or transferred, through the process of selection to a post in a department or service altogether different from the one to which he permanently belongs." In this view of the matter the posting and transfer of any Police Officer to Local Police, Traffic Police, and Central Intelligence Agency (CIA) etc. etc. has to be made by the Competent Authority. As such it is held that there is no need to further touch this point and to analyse the same. It is held to be out of consideration of this Court .in this suo motu notice especially when the Deputy Inspector‑General of Police (Traffic) Punjab, Lahore has passed the orders of the transfer of the Traffic Inspectors Police and it was also in the Press that the orders about the transfer of other Traffic Police Officers of the rank of Sub‑Inspector/Assistant Sub-Inspectors/Head Constables and Constables may be made. I would express that it is the discretion of the Competent Authority in the matter under consideration.
As expressed above the public brought many difficulties to they knowledge of this Court which are brought to the notice of the Deputy Inspector. General of Police (Traffic) Punjab, Lahore and all the Superintendents of Police (Traffic) posted in Punjab conveying the desire of this Court for redressal and removal of the same:‑‑‑

(i) At different check posts established by the Traffic Police, the car owners as well as the drivers of trucks, wagons and taxis are directed to get inscribed the chasis number, vehicles number, and engine number on the wind screen and the rear screen. In case of refusal the offer is made to collect one chit valuing Rs.200 to avoid any challan otherwise every effort is made to challan the driver. The car owners are insulted in the presence of the drivers and the family members. A perusal of the Motor Vehicle Ordinance has made out that non‑inscription of chasis number, engine number and vehicle number on the wind screen and the rear screen is not an offence. On official vehicles as well as personal vehicles of influential person including the high‑ranking officers no such inscription is seen. I would stress that police is there to serve and facilitate the public and not to harass or create problems for them. The self‑employed staff charging more than the market rate is made to remain present at the check‑posts with whom the profit is shared. The Police Department is for the convenience of the public. I would express that the Deputy Inspector General of Police (Traffic) Punjab, Lahore shall issue an Order of the Day till 30‑5‑1999 directing the Traffic Police Punjab not to get inscribed the chasis number, engine number, and vehicle number on the wind screen and the rear screen at the Check Posts through their own employed staff. In this regard the incentive can be prompted through affixation of sign boards at different places in favour of this inscription. It is pointed out that the wind screens can be removed/broken by a thief if theft is made and this is not the only method to get the vehicle saved from the clutches of the car lifters. Rather the better performance of duty by the Police Officers can bring the salubrious and positive results in this regard.

(ii) The vehicles are not run according to the routes. All this is done with the connivance of the Traffic Police. It may be restrained by the various high‑ups of the Traffic Police with firm hands.

(iii) The illegal gratifications for whole of the month, commonly known as "monthly", is received by the Traffic Police through the affixation of Stickers as well as through issuance of Cards containing the signatures of the "concerned person" with whose help the same are got issued. This can be avoided by surprise visits by the superior officers of the Traffic Police.

(iv) A direction has been issued that the passengers shall be checked before they board the vehicle i.e. bus, wagon etc. etc. While the vehicle is on the road, the Local Police would stop the same for checking. Two or three persons are made to sit as fake passengers who are believed in their assertion of non‑checking from the starting point while remaining all the passengers, who may be 30 to 40 in number are disbelieved. The passengers are boarded off and the bus is taken to the Police Station after impounding the same causing inconvenience to the passengers. A contact may be made by the Deputy Inspector General of Police .(Traffic) Punjab, Lahore with the Inspector‑General of Police as well as the Deputy Inspector-Generals of Police of all Ranges in the Province of the Punjab so that this difficulty is controlled and overpowered in a salubrious manner. It is proper to express that even if the checking is to be made the passengers should not be made to face the difficulty of boarding off.

(v) The Constables of. the Traffic. Police do not check the public transport in the chowks and‑ even traffic violations are prompted. Some Sub‑Inspectors or Assistant Sub‑Inspector of the Traffic Police stand hidden near a chowk for‑ their prey who would come out immediately and would impound the vehicle(s). The Inspectors., Sub‑Inspectors and Assistant Sub‑Inspectors can play‑ the positive role if they are directed to stand open‑ in the chowks to supervise the duty of their respective subordinates for controlling the traffic rules violators.

(vi) In Lahore the wagons start from the starting point, but do not go upto the destination. In this regard specific complaint was made with respect to Route No.50. It has been expressed that this Route No.50 is from Shahdara to Kot Lakhpat while the wagons drop the passengers at Bhati Gate, Lahore and do not go ahead; that from Shahdara to Bliati Gate there is no Government office and that Kot Lakhpat is at a considerable distance from Bhati Gate, Lahore. It is desired that the owners/drivers of the wagons are directed to ply the vehicles from the starting point upto the destination and vice versa. In case of violation the route permit can be cancelled. It has been expressed by the members of the public that some of the Magistrates and the Police Officers are responsible for the creation of this difficulty. I hope that the recently appointed Deputy Inspector General of Police (Traffic) Punjab Lahore shall be able to overpower and control this difficulty with iron hand.

(vii) From Shahdara More till Shahdara Town the buses are being run/plied without route permit. It shall be checked and the vehicles having the route permit shall be allowed to do the business.

(viii) In Batti Chowk, Lahore at present known as Niazi Shaheed Chowk, the transporters are facing maximum harassment at the hands of the Traffic Police. It has commonly been complained that from General Bus Stand to 'Yatim Khana' and Shahdara via Batti Chowk/Niazi Shaheed Chowk Lahore the maximum corruption is a common scene and the buses of particular groups of transporters are afforded preference to the financial detriment of the other group(s) of transporters. It would be better to pay surprise visits to Batti Chowk/Niazi Shaheed Chowk in plain clothes by the superior Policed Officers of traffic which would definitely bring positive results. Even the posting of some renowned honest Traffic Police Officer would be source of convenience to the general public as the general public travel in the buses, wagons.

(ix) It shall not be out of place to express that Motor Vehicle Ordinance, 1965 was enforced for the convenience of the public and the transporters. The violation of traffic laws must be checked and the law‑breakers must be punished, but the passengers should not be made to face the ordeal who are made to board off to impound the buses on flimsy grounds and during these days of rush of traffic are unable to get the seat in any other bus/wagon running on the same route.

(x) The menace of overloading is on the increase for the last about halt a decade and has gone to deep roots. The passengers, males and females, are enacted in the buses, wagons. Even the passengers are made to sit on the top roof of the bus, wagon which not only is dangerous and unsafe, the same is an ugly scene; against human dignity and respect and also violative of traffic laws. In this respect the female passengers are the more sufferers. I would express that even though greed is a curse there is no end to it and this aspect is responsible for the creation of this situation/menace. Such regular and frequent violations of traffic laws project the deep‑rooted indiscipline in the society. The golden motto of "Unity, Faith and Discipline" expounded by the Father of the Nation Quaid‑e‑Azam Muhammad Ali Jinneh (May God bless his soul) is being ignored by all of us especially the persons in authority. Some favourite transporters get the protection of the influential but dishonest officers of Traffic Police and the Executive Officers. The aforesaid type of transporters get the preference at the starting points in enjoying more time than others to pick the passengers; non‑checking of their vehicles by the Traffic Police who intentionally ignore them and violating the pick and drop permission facility allowed by the Government by making the vehicles stop for considerable time at places not approved as Bus, Wagon Stops. No doubt Pakistan is a progressive country facing financial constraints, yet in the recent past there was no overloading in the buses and wagons and this aspect is enough to hold the view that with slow and steady efforts the passengers and transporters can be made to revert to the previous' position when exception was taken by the Traffic Police as well as' by the public, passengers with respect to the overloading. After all the passengers paying the fare would not like to be treated like cattle and chattle. The passengers can be guided by the traffic police by not prompting the overloading and the fear of traffic laws can be infused and increased in the minds of the transporters by using this weapon. If the traffic police succeeds in removing this menace it would not be less than the hoisting of flag of their success in an open place.

(xi) I am tempted to refer to the working of the Traffic Police hardly a decade before when on Shahrah‑e‑Quaid‑e‑Azam, Lahore also known as The Mall and other important roads the Traffic Sergeants streamlined and regularised the traffic by constant shuttle patrolling the area on motor‑cycles fitted with necessary apparatus. However, this has become a story of the past. They are provided the said facility even now but they are very seldom seen. They rather prefer to go to places like Batti Chowk/Niazi Shaheed Chowk regularly, of course, subject to allocation of territorial beats (area). If the Traffic Sergeants are made to restart the performance of duty like the magnanimous 'CHIPS', traffic blockades, constant use of pressure horns by wagons drivers, over‑taking of the vehicles especially by wagon drivel's from the left side and overloading can be checked, stopped and controlled. On the Highway as well positive results can be achieved if the Motor Mobile Police Inspectors (MMPIs) re‑start and accelerate their working through regular shuttle travelling and checking.

(xii) The traffic signals also require the personal attention of the high‑ups of Traffic Police. The faulty traffic signals create traffic mess. The proper maintenance of traffic signals must be a regular feature to ensure the smooth flow of traffic. The traffic signals which are out of order resulting in traffic jams need to be repaired. The policemen deputed on duty should not keep them busy chatting on road side encouraging traffic rule violators. Thus, they can provide convenience and facility to the public near the traffic signals which are not working.

(xiii) As mentioned and directed in earlier order dated 22‑4‑1999 there must be allocation/specification of 'Silence Zones' in different important parts of big cities like Lahore, Rawalpindi, Multan, Faisalabad etc. etc. and conspicuous boards must be installed there within two months. Within the territorial limits of 'Silence Zones' strict vigilance and check must be carried on where horns shall not be blown by the drivers of all type of vehicles.

(xiv) I am pointing towards a big‑ problem of traffic flow to be faced in the near future. The Provincial Government is constructing the Bye-passes near busy roads of cities passing through the same to avoid traffic jams. Huge budget has been spent and will be spent. However, on big chowks of the Bye‑Passes the shops are being constructed and the menace of congestion and traffic blockade shall recur in the near future causing inconvenience' to the public as smooth running of traffic shall be interrupted. If found proper and feasible the matter may be taken up with the National Highway Authority and Commissioners of the Divisions in the Province so that unauthorised 'and uncontrolled construction is stopped on the Bye‑passes. The nation must see towards the future as well, while meeting the challenges of the present.

The Departmental Inquiry against Ghulam Mustafa A.S.‑I. Traffic (under suspension) shall be completed. within a short span of period.
At this stage I would express that the suo motu notice taken by this Court has brought the positive results. On the one side Aslam Pervaiz "` owner/driver of Bus No. LES‑517 set at fire his bus due‑ to the conduct of the Traffic Police and at the same time he was booked as an accused of case F.I.R. No.148 dated 20‑4‑1999 under section 427/435 of Pakistan Penal Code registered at Police Station Shafiqabad, Lahore who was arrested and whose physical remand was obtained. After this Court took the suo motu notice; Aslam Pervaiz driver was declared as innocent and was‑released on the same day i.e. 20‑4‑1999 and today it has been intimated that the Area Magistrate has cancelled the aforesaid F.I.R. under section 169/173 of the Code of Criminal Procedure. I would record that the aforesaid Aslam Pervaiz must thank his stars as due to the suo motu notice taken by this Court he is able to save his skin. No doubt he could not withstand the pressure of Traffic Police, Lahore, yet he is out of the ordeal he had to face and at present stands saved and exonerated thereof.
May God. give the courage to Mr. Muhammad Altaf Qamar D. S. P. recently appointed Deputy Inspector‑General of Police (Traffic) Punjab, Lahore to administer goods and provide convenience to the public at large. I wish him good‑speed in his onward march.
A copy of this judgment shall be immediately sent by the office to the Deputy Inspector‑General of Police (Traffic), Punjab Lahore.

21 This matter stands disposed of, H.B.T./S‑340/L Order accordingly.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1287 #

2000 P Cr. L J 1300

[Lahore]

Before Mrs. Fakhar-un-Nisa Khokhar, J

ABID HUSSAIN ---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.533/Q of 1999/BWP, heard on 5th July; 1999.

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

----Ss. 342 & 561-A---Agricultural Pesticides Ordinance (II of 1971), S.21--Examination of accused---Accused was convicted and sentenced on the report of Assistant Agricultural Chemist Pesticides and report of Federal' Pesticides Testing and Reference Laboratory, but none of the said reports was put to accused while examining him under S.342, Cr.P.C.---Effect---When any incriminatory evidence was not put to accused under S.342, Cr.P.C. conviction of accused could not be sustained---Each of incriminating aspect of matter was mandatory to be put to notice of accused so as to enable him to forward his defence---Any such incurable defect would vitiate the trial.

Sohail Ahmad and 6 others v. The State and another 1995 PCr.LJ 2036 ref:

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

---Ss. 342 & 537---Opportunity to accused to. defend himself---Reversal or alteration of finding of Court _ of competent jurisdiction-=-Accused being favourable child of law, provisions. of S.342, Cr.P.C. had provided him full chance to offer his defence in order to establish his innocence---Utmost duty of Court to give accused a full opportunity to defend his case in Court of law and, Court had to see that complete justice had been done---Legislature in order to avoid any type of legal prejudice to accused had intentionally under 5.537, Cr.P.C. restricted that any irregularity of charge which had prejudiced the trial, would not be curable so as to disentitle the accused to acquittal---Provisions of 5.537, Cr.P.C. had not provided any benefit to prosecution to claim retrial on ground of procedural error or defect or irregularity.

Sheikh Liaquat Hussain v. The State 1997 PCr.LJ 61 ref.

Mumtaz Mustafa for Petitioner.

Niaz Ahmad Shah for the State.

Date of hearing: 5th July, 1999.

JUDGMENT

By this single judgment I will dispose of the Criminal Miscellaneous No.533/Q of 1999/BWP and Criminal Miscellaneous No.534/Q of 1999/BWP as the common question of law is involved therein.

This is a petition under section 561-A, Cr.P.C. against the judgment passed by the learned Sessions Judge, dated 1-5-1999 by virtue of which he remanded the case to the learned trial Court against the judgment, dated 15-8-1998 passed by the learned Assistant Commissioner/Magistrate 1st Class, Rahimyar Khan whereby the petitioner was sentenced under section 21(2)(b) of the Agricultural Pesticides Ordinance, 1971 and was sentenced to one year's R.I. and a fine of Rs.50,000 in default of payment of fine to further undergo S.I. for six months.
A complaint was lodged by the Deputy Director, Agriculture against the petitioner under section 21 of the Agricultural Pesticides Ordinance, 1971. The learned trial Court framed a formal charge on 10-6-1998 for keeping the abovementioned pesticides for sale which was substandard. The petitioner denied the charge and pleaded not guilty.
The statements of P.W.1. Ghulam Rasool, the Field Assistant and P.W.2 Ch. Muhammad Anwar, Deputy Director, Agriculture (Extension), Rahimyar Khan, were recorded as witnesses. The prosecution tendered in evidence the report of the Assistant Agricultural Chemist Pesticides, the Quality Control Laboratory, Multan, Exh.P.C. and that of Federal Pesticide Testing and Reference Laboratory, Karachi, Exh.P.D. The Statement of the petitioner as an accused was recorded under section 342, Cr.P.C. and vide order, dated 15-8-1998 the learned Assistant Commissioner/Magistrate 1st Class, Rahimyar Khan convicted the petitioner under section 21(2)(b) of the Agricultural Pesticides Ordinance, 1971 and awarded one year's R.I. alongwith fine of Rs.50,000, in default of payment of fine to further undergo S.I. for six months. The petitioner filed a criminal revision petition before the learned Sessions Judge under section 439-A read with section 435, Cr.P.C. The learned Sessions Judge, vide judgment, dated 1-5-1999 accepted the revision petition, set aside the judgment and conviction having been delivered against the petitioner by the learned trial Court and remanded the case to the learned trial Court for trial afresh.
The learned counsel for the petitioner submits that the learned Sessions Judge has erred in law remanding the case to the learned trial Court to cure the errors of law committed by the trial as well as the prosecution before the original Court, hence has prejudiced the petitioner's acquittal.
The conviction order was based upon report of Assistant Agricultural Chemist Pesticides, Multan and the report of Federal Pesticides Testing and Reference Laboratory, Karachi Exh.P.C. and Exh.P.D. respectively, but none of, the reports was put to the petitioner while being examined under section 342, Cr.P.C. and the settled proposition of law in this respect is that when any incriminating evidence is not put to the accused under section 342, Cr.P.C. the conviction cannot be sustained and that each of the incriminating aspect of the matter is mandatory to be put to the notice of the accused so that to enable him "to forward his defence. Any incurable defect vitiates the trial. Relies on Sohail Ahmad and 6 others v. The State and another 1995 PCr.LJ 2036.
Learned counsel for the State has submitted that the learned Sessions Judge was duty bound to decide the case on merits rather to remand the case to the learned trial Court.
The learned counsel in Criminal Miscellaneous No.533-Q of 1999 submits that due to non-observance of procedural law the case can be remanded to the learned trial Court when the revisional Court comes to the conclusion that the trial Court has committed an illegality for non-observation of the provisions of section 342, Cr.P.C., therefore, the instant case is rightly remanded for retrial.
I have heard the learned counsel for the petitioner as well as the learned counsel for the State and have minutely gone through the finding of the learned revisional Court.
The learned Sessions Judge through speaking order has given a verdict that the conviction based on the evidence which is not recorded according to the Qanun-e-Shahadat and without affording an opportunity of cross-examination to the accused has no legal significance. As cross-examination of P. W.2 was reserved and there is no explanation on the record whether any opportunity of cross-examination of P.W.1 was given and when the two witnesses appeared on 27-7-1998 their cross-examination was recorded but no oath was administered to both the P.Ws. He has also given a finding that the reports Exh.P.C. and Exh.P.D. upon which the conviction of the convictee is based were not put to the accused under section 342, Cr.P.C. and this was material incriminating evidence which was mandatory to be put to the accused.
The settled proposition of law is that the accused is favourite childi of law and all these provisions of law enable the accused to give him a full chance to offer his defence, in order to establish his innocence: It is also the utmost duty of the Court to give him a full opportunity to defend his case in a Court of law and the Court has to see that complete justice has been done. In order to avoid any type of legal prejudice to the accused the Legislature has intentionally under section 537, Cr.P.C. restricted that any irregularity of charge which has prejudiced the trial would not be curable to disentitle the accused to acquittal, as laid down in Sheikh Liaquat Hussain v. The State 1997 PCr.LJ 61. Therefore, section 537, Cr.P.C. does not give any benefit to the prosecution to claim retrial on the ground of procedural error or defect or irregularity.
In view of what has been discussed above, I accept this Criminal Miscellaneous and .set aside the judgment passed by the learned Sessions Judge, dated 1-5-1999, remand the case to the learned Sessions Judge to decide the case purely on merits.

H.B.T./A-56/L Application accepted.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1290 #

2000 P Cr. L J 1303

[Lahore]

Before Muhammad Naseem Chaudhri, J

MUHAMMAD HAYAT and another‑‑‑Petitioners

versus

STATION HOUSE OFFICER, POLICE STATION SADAR CHINIOT, DISTRICT JHANG and 3 others‑‑‑Respondents

Writ Petition No.20766 of 1999, heard on 17th April, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Penal Code (XLV of 1860), S.380‑‑‑Quashing of F.I.R.‑Sister of one of the accused who was wife of complainant had filed suit fog dissolution of marriage on ground of Khula' against complainant which was pending adjudication‑‑‑Possibility was that complainant had falsely roped in accused to put pressure upon them for return of wife of complainant against whom she had instituted suit for dissolution of marriage‑‑‑Both accused had been declared innocent during police investigation‑‑‑Matter was reported to police after delay of eleven months and F.I.R. was registered at police station‑‑‑Registration of F.I.R. was transgression 'of authority on part of police‑‑‑Law was always stretched in favour of accused and was for convenience of accused ‑‑‑F.I.R. registered against accused was quashed, in circumstances.

Ch. Muhammad Sarwar on behalf of Malik Rab Nawaz for Petitioners.

Ms. Roshan Ara, Asstt. A.‑G. for the State.

Date of hearing: 17th April, 2000.

JUDGMENT

Muhammad Hayat and his wife Mst. Allah Jiwai filed this Writ Petition No.20766 of 1999 for the quashment of F.I.R. No.410,registered on 10‑8‑1999 at Police Station Saddar Chiniot, District Jhang under section 380, Pakistan Penal Code at the instance of Allah Yar. In the F.I.R. Allah Yar complainant alleged that eleven months before 10‑8‑1999 he slept in his house. He awoke in the morning. Cash amount of Rs.66,000, four Tolas of gold, ten suits of silk cloths valuing Rs.10,000 and one .12 bore double barrel gun were found missing. His alarm attracted Zulfiqar and Ulfat Hussain P.Ws. He cast the suspicion on Muhammad Hayat and Allah Jiwai accused who according to him, visited him. They were asked in the matter. They appointed Jalal as the arbitrator and he after hearing the parties passed the decree against them. He also declared both Muhammad Hayat and Mst. Allah Jiwai as accused. Later on both of them refused to return the stolen articles. It was thereafter that the F.I.R. was lodged.

.2. The quashment is sought on the ground that Mst. Azra Bibi sister of Allah Jawai . accused was married to Allah Yar complainant of the criminal case who instituted her in a suit on 12‑7‑1999 to obtain a decree for dissolution of marriage against Allah Yar on the basis of Khula'. He maintained that to put the pressure upon them they were falsely roped in. Muhammad Hayat also filed an application under section 30/33 of the Arbitration Act wherein he challenged the vires of award, dated 20‑5‑1999 on different grounds. The petitioners took up the stand that they have been falsely roped in to put the pressure upon them about the return of the person of Mst. Azra Bibi to Allah Yar against whom she had instituted a suit for dissolution of marriage.

3 In the comments the S.H.O. submitted‑that both the accused claim to be innocent even though Mal Nian heard both the parties and gave his verdict in favour of Allah Yar complainant. According to him the Deputy Inspector‑General of Police, Faisalabad Range, Faisalabad had mentioned his order in the case diary to the effect that no further action shall be taken.

This writ petition was admitted on 2‑2‑2000. The comments and report are treated as the written statement.
I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate‑General. Mr. Muhammad Munir Ahmad, Deputy Superintendent of Police, Chiniot, District Jhang has expressed that both the writ petitioners have been declared as innocent during the police investigation. Learned counsel for the petitioners argued that to put the pressure .upon Mst. Azra Bibi sister of Mst. Allah Jiwai writ petitioner the matter was reported to the police with a delay of eleven months and that the accused. having been declared as innocent the F.I.R. is liable to be quashed. On the‑ contrary learned A.A.‑G. laid the emphasis that the matter shall have to be placed before the Area Magistrate about the discharge of the accused persons who within his discretion can pass any appropriate order. I would express that the law is always stretched in favour of the accused and is for the convenience of the accused.‑In the instant matter Mst. Azra Bibi is the sister, of Mst. Allah Jiwai writ petitioner who is the wife of Allah Yar complainant and she instituted a suit for dissolution of marriage on 12‑7‑1999 while the case was reported to the police on 10‑8‑1999 with a delay of eleven months. The aforesaid delay is also a fact in favour of the writ petitioners especially when the police has declared the accused persons as innocent. The fact of the matter is that an award was drawn which means that the dispute is also that of civil nature and about the setting aside of the award the matter is also pending before the Civil Court. In view of the aforesaid aspect of the matter it can safely be expressed that to put the pressure upon Mst. Azra Bibi both the petitioners were falsely roped in. This is a case of transgression of authority on the part of the S.H.O., Police Station Saddar Chiniot, District Mang with whose blessing F.I.R. No.410, dated 10‑8‑1999 was registered at Police Station Saddar Chiniot, District Jhang under section 380, Pakistan Penal Code. I would express that in the circumstances of the matter first Mst. Azra Bibi sister of Mst. Allah Jiwai writ petitioner and wife of Allah Yar complainant has instituted a suit for dissolution of marriage against Allah Yar, that in view of the aforesaid aspect of the matter the. petitioners cannot be said to have gone to the house of the complainant, that there is delay of eleven months in reporting the matter to the police and that an award has been drawn and issued, it can safely be held that the F.I.R. required and desired to be quashed as to fall on the ground like a house of cards. There is no necessity to place the matter before the Ilaqa Magistrate for the discharge of the accused persons in view' of the aforesaid aspect and circumstances of the matter.
Holding it to be a fit case, I accept this writ petition and quash F.I.R. No.410 registered on 10‑8‑1999 at Police Station Saddar Chiniot, District Jhang under section 380, Pakistan Penal Code. However, the parties are left to bear their own costs.

H.B.T./M‑139/L Petition accepted.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1300 #

2000 P Cr. L J 1315

[Lahore]

Before Muhammad Naseem Chaudhri, J

Mst. SHEHZADI QAMAR alias NIGHAT RANI ‑‑‑ Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION PHOOL NAGAR, DISTRICT KASUR, and 3 others‑‑‑Respondents

Writ Petition No. 21474 of 1999, heard on 19th April, 2000

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Penal Code (XLV of 1860), S.380‑‑‑Quashing of F.I.R.‑‑Husband of petitioner having died in road accident, petitioner (widow) contracted second marriage‑‑‑Two sisters of deceased husband .of petitioner jointly got recorded F.I.R. against petitioner alleging that petitioner made theft of household articles owned by their deceased brother‑‑‑Petitioner widow had right to live in the house owned and left by her deceased husband and there was no question of removal of any property and there was no occasion to get permission from both complainants/sisters of deceased to utilize her household articles left by her deceased husband as she was entitled to use the same ‑‑‑F.I.R. could not be got registered by sisters of deceased husband of petitioner as joint complainants‑‑‑Registration of case against the petitioner was transgression of authority on part of police‑‑‑If complainant had any interest in the property left by their late brother, they could seek assistance of Civil Court‑‑‑Joint F.I.R. got registered by two complainants, was quashed in circumstances.

M. Yaqub Pannu for Petitioner. Ms. Roshan Ara, A.A.‑G. for Respondents.

Date of hearing: 19th April, 2000.

JUDGMENT

Mst. Shehzadi Qamar alias Night Rani was married to one Ansar Ali who unfortunately expired in a road accident on 30‑4‑1999. The said widow contracted her second marriage with one Ahsan. Mst. Talat Bhatti and Mst. Bashiran Bhatti respondents Nos.2 and 3 are real sisters of Ansar Ali deceased. Making the allegation that Mst. Shehzadi Qamar alias Night Rani had made theft of household articles valuing Rs.35.000 owned by their deceased brother Ansar Ali, his sisters Mst. Talat Bhatti and Mst Bashiran Bhatti respondents Nos.2 and 3 as the joint complainants got recorded F.I.R. No.299 on 2‑6‑1999 at Police Station Phoolnagar District Kasur under section 380, Pakistan Penal Code.

Mst. Shehzadi Qamar alias Nighat Rani filed this writ petition No.21474 of 1999 for the quashment of the aforesaid F.I.R. with the assertion that being the widow of Ansar Ali she could not be termed as having made theft of the household articles as she was entitled to utilize the same in her house.
The comments have been submitted by the S.H.O. Police Station Phoolnagar District Kasur wherein he expressed that the case has been found to be false during the investigation and that the papers shall be placed before the learned Area Magistrate for the cancellation of the F. I. R.
This writ petition was admitted for regular hearing on 16‑11‑1999. The comment and report are treated as the written statement.
I have heard the learned counsel for the petitioner as well as the learned A.A.‑G. and gone through the record before me. The learned A.A.‑G scrupulously conceded that the F.I.R. could not be got registered by both the sisters of Ansar Ali deceased as the joint complainants. In this respect I am tempted to give my view that being the widow of Ansar Ali, Mst. Shehzadi Qamar alias Nighat Rani petitioner‑accused is well within her legal right to live in the house owned and left by her husband, that there was no question of removal of any property and that there was no occasion to get the permission from both the complainants to utilize the household articles. It seems that with the help of some influential person during the last regime both Mst. Talat Bhatti and Mst. Bashiran Bhatti complainants/respondents Nos.2 and 3 succeeded in getting registered the criminal case against their widow ' Bhabhi' During my service in the subordinate judiciary and in the High Court for about a period of four decades it is first case wherein there are two complainants in one F.I.R. which shows the incompetence of the S.H.O. posted in Police Station Phoolnagar on 2‑6‑1999, the date the F.I.R, No.299 was registered under section 380, P.P.C. Rather it is also a case of transgression of authority on the part of the police. Instead of showing sympathy and soft comer to a widow, she has been entangled in a criminal case obviously to deprive her of the property of her late husband Ansar Ali, If the complainants have any interest in the property left by their late brother they can seek the assistance of the civil Court. However, the course adopted by them with the help and blessing of the S.H.O. Police Station Phoolnagar can neither be approved nor affirmed by this Court. To marry as widow is not a sin. Rather Islam has prompted and propagated the same. It seems to be a bone of contention which need not be given the legal weight under the Islamic law and the Statutory law of the land. In the circumstances of the matter it is better to grant the relief to Mst. Shehzadi Qamar alias Nighat Rani petitioner at the end of this Court without resort to the production of the file before the learned Area Magistrate.
Holding it to be a fit case on the basis of my aforesaid reasoning, I accept this application and quash F.I.R. No.299 registered"`W2‑6‑1999 at Police Station, Phoolnagar District Kasur under section 380, Pakistan Penal Code. I however, leave the parties to bear their own costs.

H. B. T./S‑29/L

Petition accepted.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1303 #

2000 P Cr. L J 1320

[Lahore]

Before Maulvi Anwarul Haq, J

BILAL‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.350/B of 2000, decided on 24th February, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/109/34‑‑‑Bail, grant of‑‑.‑No evidence was available against accused except his extra judicial confession which. evidence had always been treated as a very weak type of evidence‑‑Recovery of gun allegedly used in the occurrence was witnessed by a person whose ocular evidence was not believable‑‑‑No empties were recovered from the spot where deceased was stated to have been killed and it could not be said with certainty as to whether gun allegedly recovered at pointation of accused, was used in the commission of offence‑‑‑Persons initially named in the F.I.R. had since been found to be innocent and so was the case with another set of persons, who were named thereafter‑‑‑Case against accused being of further inquiry, ball was granted to him.

Amir Hamza v. The State 1988 SCMR 755 ref.

Muhammad Saeed Akhtar for Petitioner.

Agha Khurram for the State.

ORDER

On 9‑11‑1998 one Ghulam Hussain laid information at Police Station Kot Mubarak, District D.G. Khan that his father Muhammad Yousaf, alongwith his mother and sister are residing in Basti Talai, village Jiani while he is residing elsewhere. He received information in the morning that his father has been murdered. He reached the said village and his mother told him that Muhammad Yousaf after taking his dinner left the house saving that he is going to meet his nephew Fazal Imrani who did not return till the morning when a search was made and his dead body was found in front of house of the one Allah Bakhsh. There was a gun fire wound on the left bicep and signs of stick blows on his chin and hand; that he suspected that his father has been murdered by Ibrahim, Ismail and Hassan sons of Gul Muhammad as Ibrahim had suspected that some illicit liaison is being maintained by his wife with the deceased. On the said information a case under section 302/109/34, P.P.C. was registered vide F.I.R. No.186, dated 9‑11‑1998 at Police Station Kot Mubarak, District D.G. Khan. It appears that investigation took many turns and it was on 21‑2‑1999 that the present petitioner was arrested and according to the police led to the recovery of gun allegedly used in the offence. A bail application filed by the petitioner was heard by leaned Sessions Judge, D.G. Khan who dismissed the same on 12‑10‑1999.

Learned counsel contends that the petitioner has been falsely roped in. There is no evidence against him except an extra judicial confession. Learned counsel for the State opposes the bail application.
I have gone through the record brought by the, Police Officer. I find that according to the Zimni recorded on 17‑1‑1999 i.e. more than two months after registration of the case one Fazal son of Faqira gave a statement that he alongwith Ghulam Hussain were coming on a motor‑cycle on

8‑11‑1998 (i.e. the day of alleged occurrence) when he heard a gun shot. When he turned his motor‑cycle towards the said noise they met Mewa son of Ahmad who was holding a stick in his hand and the petitioner who was carrying a rifle and when he inquired about the noise of the gun shot Mewa said that Muhammad Yousaf used to pester his sister Halima for illicit intercourse and she complained to him. He tried to stop Yousaf but he continued. Consequently, he told his sister that she should ask Yousaf to meet him at a certain time when she conveyed the said message to Yousaf she informed him as well and thus they sat in ambush and when Yousaf came killed him.

Without commenting upon the correctness of the said statement this Fazal appears to be the same person who is mentioned in the FIR i.e. the nephew of the deceased. Prima facie it is unbelievable that when Fazal was aware of the facts on the very day rather at the time of occurrence why did not he come out with the said information and why did not he informed his aunt i.e. wife of the deceased who according to the contents of the F.I.R. had been looking for her husband and it was only in the morning that his body was discovered. So far as the recovery of the gun is concerned it is the contention of the learned counsel that the gun is a licensed weapon belonging to an uncle of the petitioner and as recovered from his house and the witness of the memo is no person other than the said nephew of the deceased. I also find that the persons initially named in the F.I.R. have since been found to be innocent and so is the case with another set of persons who were named thereafter. So far as the said extra judicial confession is concerned the same has always been treated a very weak type. of evidence. Reference be made to the case of Amir Hamza v. The State 1988 ,SCMR 755. The Police Officer present, informs that no empties were recovered from the spot where the deceased is stated to have been killed. At the moment it cannot be said with certainty as to whether the gun allegedly recovered at the pointation of the petitioner was used in the commission of the offence. I certainly find it to be a case of further inquiry. The petitioner was arrested on 21‑2‑1999 and was sent to judicial lockup on 25‑2‑1999 and is so incarcerated eversince. I accordingly allow this Criminal Miscellaneous and admit the petitioner to bail subject to his furnishing of bail bonds in the sum of Rs.1,00,000 with two sureties in. the like amount to the satisfaction of the learned trial Court.
Record be returned to the Police Officer.

H.B.T./B‑9/L Bail granted.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1315 #

2000 P Cr. L J 1324

[Lahore]

Before Muhammad Naseem Chaudhri, J

MUHAMMAD ASHRAF‑‑‑Petitioner

versus

RIZWAN NAZIR, EXECUTIVE MAGISTRATE 1ST CLASS, DASKA and another‑‑‑Respondents .

Writ Petition No.22875 of 1999, heard on 17th April, 2000.

(a) Foreign Exchange Regulation Act (VII of 1947)‑‑

‑‑‑‑Ss.18, 1.9 & 23‑‑‑Federal Investigating Agency Act, 1974 (VIII of 1975), S.3‑‑‑Criminal Procedure Code (V of 1898), 5.103‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Notification No.F.E.3/72‑S.B., dated 5‑101972‑‑‑Quashing of F.I.R.‑‑‑Executive Magistrate 1st Class raided shop of petitioner who allegedly was dealing in foreign currency without authorisation and after taking into possession foreign currency, F.I.R. was registered against accused/petitioner under S.18/23 of Foreign Exchange Regulation Act, 1947‑‑‑Petitioner/accused had sought quashing of F.I.R. on the ground that Executive Magistrate was not competent to conduct the raid in view of Notification No.F.E.3/72‑SB, dated 5‑10‑1972 and that under S.23(3) of Foreign Exchange Regulation Act, 1947, petitioner was entitled to be given a notice and that no private witness was associated in the raid‑‑Offences mentioned in Schedule to Federal Investigating Agency Act, 1974, could be inquired into and investigated by Federal Investigation Agency and offences punishable under Foreign Exchange Regulation Ac: 194? was mentioned at Serial No.4 of Schedule to Federal Investigating Agency Act. 1974‑‑‑Executive Magistrate and Local Police, in circumstances, could not proceed in the matter of dealing in foreign exchange even though restrictions have been imposed or not‑‑‑Executive Magistrate could not enter the shop of petitioner/accused ‑‑‑Proceedings by Executive Magistrate otherwise were incompetent as he did not join two respectables from area as provided under S.103, Cr.P.C.‑‑‑F.I.R. incompetently got registered by the Magistrate was liable to be quashed.

(b) Administration of justice‑‑‑

‑‑‑‑ Where a thing was provided to be done in a particular manner it had to be done in that manner and if not so done, same would not be lawful‑.‑‑Where a person was given to do a certain thing in a certain way that thing must be done in that way or not at all and other methods of performance were necessarily forbidden.

Ch. Sadaqat Ali for Petitioner.

Ms. Roshan Ara, A.A.‑G. for Respondents.

Date of hearing: 17th April, 2000.

JUDGMENT

Mr. Rizwan Nazir Executive Magistrate Ist Class, Daska, District Sialkot raided on 23‑10‑1999 the shop of Muhammad Ashraf writ petitioner in the company of his Naib Court Muhammad Arif constable, his .driver Muhammad Arshad, Ashfaq Ahmad A.S.‑I. Police Station Daska, Muhammad Akram A.S.‑I. Police Station Daska, Mubarik constable and Akhtar Ali constable situated in the Sarafa Market, Daska and took into possession three foreign currency notes of the denomination of Rs.10,000 of some unknown country; one hundred Irani Riyal, two currency notes of Irani Riyal each valuing Rs.500, one currency note of 200 Irani Riyal, one Egyptian Pound and one note of the currency of Rs.100 of some unknown country vide memo. attested by Muhammad Arif, Naib‑Court and Muhammad Arshad Driver. Making the allegation that Muhammad Ashraf was dealing in foreign currency without authorisation, he got registered F.I.R. No.565 on 23‑10‑1999 at Police Station City Daska, District Sialkot under section 18/23 of the Foreign Exchange Regulation Act, 1947.

Feeling aggrieved Muhammad Ashraf petitioner filed this writ petition for the quashment of the F.I.R. on the grounds that Mr. Rizwan Nazir Executive Magistrate 1st Class was not competent to conduct the raid in view of Notification No.F.E.3/72‑SB, dated 5‑10‑1972, that under section 23(3) of the Foreign Exchange Regulation Act, 1947 he was to be given a notice, that no private witness was associated in the raid and that the charge against him is groundless.
This writ petition stands admitted for regular hearing. In the written statement Mr. Rizwan Nazir expressed about his authority to enter the shop of the petitioner and to take into possession the foreign currency on the ground that Muhammad Ashraf petitioner carried on the business without authorisation.
I have heard the learned counsel for the petitioner as well as the learned A.A.‑G. and gone through the record before me. Learned counsel for the petitioner referred to section 193 of the Federal Investigating Agency Act, 1974 as well as its Schedule according to which offences punishable under the Foreign Exchange Regulation Act are to be enquired into and investigated by the F.I.A. He added that Mr. Rizwan Nazir Executive Magistrate 1st Class, was not competent to proceed in the matter. He also referred to section 19(3)(3‑A)(3‑B) and argued that without the issuance of search warrant on the representation in writing made by a person authorised in this behalf by the Federal Government or the State Bank and supported by a statement on oath of such person that he has reason to believe that a contravention of any of the provisions of this Act has been or is being or is about to be committed in any place or that evidence of contravention is to be found in such place. The District Magistrate, Sub‑Divisional Magistrate or Magistrate 1st Class may by warrant authorise any Police Officer not below the rank of Sub‑Inspector to enter and search any place in the manner specified in the warrant and seize any book or other material found in or on such place. He maintained that it is a case of transgression of authority on the part of Mr. Rizwan Nazir, Executive Magistrate 1st Class, Daska, District Sialkot.
Learned A.A.‑G. scrupulously conceded that Mr. Rizwan Nazir Executive Magistrate 1st Class could not enter the shop of Muhammad Ashraf petitioner. Mr. Rizwan Nazir Executive Magistrate 1st Class expressed that being a new entrant in service he had not gone through the relevant provisions of law and expressed that in future he would be careful.
I would express that the reasoning adopted by the learned counsel for the petitioner has to prevail.

Section 3 of the Federal Investigating Agency Act, 1974 (Act No:VIII of 1975) reads as under:‑‑

"Section 3. Constitution of the Agency.‑‑

(1) Notwithstanding anything contained in any other law for the time being in force, the Federal Government may constitute an Agency to be called the Federal Investigation Agency for inquiry into, and investigation of, the offences specified in the Schedule, including an attempt of conspiracy to commit, and abetment of, any such offence".

In the instant case the Federal Investigating Agency can proceed in the matter. The offences mentioned in the Schedule to the Federal Investigating Agency Act, 1974 can be inquired into and investigated by the F.I.A. At serial No.4 of the Schedule to the Federal Investigating Agency Act, 1974., "offences punishable under the Foreign Exchange Regulation Act, 1947 (Act NO.VII of 1947)" is mentioned. It means that the Executive Magistrate and the local police cannot proceed in the matter of dealings in foreign exchange even though restrictions have been imposed or otherwise. The relevant portion of section 19 of the Foreign Exchange Regulation Act NO.VII‑of 1947 is reproduced as under:‑‑

"19. Power to call for information.‑‑‑ (1)

(2) ...................................................................................

(3) On a representation in writing made by a person authorised in this behalf by the Federal Government or the State Bank and supported by a statement on oath of such person that he has reason to believe that a contravention of any of the provisions of this Act has been or is being or is about to be committed in any place or that evidence of the contravention is to be found is such place, a District Magistrate, Sub‑Divisional Magistrate or a Magistrate of the First Class, may by warrant, authorise any Police Officer not below the rank of Sub-Inspector‑‑

(a) to enter and search any place in the manner specified in the warrant; and

(b) seize any books or other documents found in or on such place

Explanation.‑‑In this sub‑section, "place" includes a house, building, tent, vehicle, vessel or aircraft.

(3‑A) A Police Officer authorised under subsection (3) may search any person who is found in or whom he has reasonable ground to believe to have recently left or to be about to enter such place or to seize any article found in the possession of or upon such person and believed by the Police Officer so authorised to be evidence of the commission of any offence under this Act.

(3‑B) A Police Officer authorised under subsection (3) shall conduct any search under that subsection or under subsection (3‑A) in accordance with the provisions relating to search in the Code of Criminal Procedure, 1898.

(4) ..

In view of the aforesaid provision of law Mr. Rizwan Nazir Executive Magistrate 1st Class could not enter the shop of Muhammad Sharif. Further he did not join two respectables from the area as provided under section 103 of the Code of Criminal Procedure.
Notification No. F.E./72‑S.B., dated 5‑10‑1972 is reproduced as under which contains the list of the Officers who have been authorised to make the complaints of offences punishable under section 23 of the Foreign Exchange Regulation Act, 1947.

"Notification No. F.E. 3/72‑S.B. dated the 5th October, 1972.

In exercise of the powers conferred by section 23 of the Foreign Exchange Regulation Act, 1947 (VII of 1947) and in supersession of the State Bank of Pakistan Notification NO. F. E.1/72‑SB, dated the 30th March, 1972 the State Bank of Pakistan is pleased to authorise the following Officers of the Exchange Control Department of the State Bank of Pakistan to make complaints of offences punishable under the said section‑‑

(1) The Director, Exchange Control Department

(2) The Additional Director, Exchange Control Department

(3) A senior Deputy Director

(4) A Deputy Director

(5) An Assistant Director

(6) An Exchange Control Officer and

(7) An Assistant Exchange Control Officer".

In the aforesaid Notification Executive Magistrate of any District does not figure to initiate the criminal proceedings.
Legally, where a thing is provided to be done in a particular manner it has to be done in that manner and if not so done, same would not be lawful. I have to express that it is well recognized rule of construction that where a power is given to do a certain thing in a certain way that thing must be done in that way or not at all and that other methods of performance are necessarily forbidden.
The only irresistible conclusion which can be drawn from the' aforesaid state of affairs and ‑discussion would be that Mr. Rizwan Nazir Executive Magistrate 1st Class was not competent to conduct the raid on the shop of Muhammad Ashraf who simply transgressed his authority without any legal justification and competence. As such the F.I.R. got registered by him, which is .required and desired to be quashed, cannot remain in the field. I would express that if on the basis of the aforesaid non‑observance of the legal formality the prosecution is to be knocked out and the petitioner is to be acquitted after full-fledged trial it is his statutory right to get quashed the F.I.R. even at this initial stage.
I, therefore, accept this writ petition and quash F.I.R. No.565 registered on 23‑10‑1999 at Police Station City Daska, District Sialkot under section 18/23 of the Foreign Exchange Regulation Act, 1947.

H.B.T./M‑146/L Petition accepted

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1320 #

2000 P Cr. L J 1340

[Lahore]

Before Muhammad Naseem Chaudhri, J

JAVAID KHALID---Petitioner

versus

IMTIAZ SARWAR, S.MO., POLICE STATION DINGA, DISTRICT GUJRAT and another---Respondents

Writ Petition No.22524 of .1999, heard on 29th March, 2000.

Constitution of Pakistan (1973)---

----Art. 199---West Pakistan Arms Ordinance (XX of 1965), S.13-B13--Quashing of F.I.R.---Police registered the case against accused without recovery of alleged illicit arms---Such was over-doing on the part of police as law could be set in motion after an offence was committed, matter would be reported and F.I.R. registered---No justification was available for registration of case before recovery of alleged illicit arms ---F.I.R. registered against accused was quashed in circumstances.

Muhammad Rashid Bhatty for Petitioner.

Ms. Roshan Ara, Asstt. A.-G. for the State.

Date of hearing: 29th March, 2000.

JUDGMENT

This petition under Article 199 of the Constitution, 1973 has bee filed for the quashment of F.I.R: No.361 registered on 23-10-1999 under section 13-B of the Arms Ordinance, 1965 at Police Station Dinga, District Gujrat.

The facts giving rise to this petition are that Imtaiz Sarwa Inspector/S.H.O. Police Station, Dinga, District Gujrat recorded F.I.R No.361 on 23-10-1999 at 4-00 a.m. at Police Station, Dinga, District Gujra under section 13-B of the Arms Ordinance, 1965 wherein he narrated that hi received a secret information that Javed Kahlid alias Jaidi son of Mehdi Khat caste Gujjar resident of Khori Main was in possession of a kalashnikov another arms without licence and if -a raid was effected at his house the illicit arms could be recovered. He mentioned in the F.I.R. that a case under section 13-B of the Arms Ordinance, 1965 was made out and that alongwith the police of the Police Station, Kharian and Police Station Sarai Alamgir, he was going to the spot.
Expressing that before the recovery of the illicit arms the case could not be registered, the petitioner filed this petition for the quashment of the F. I. R.
In the comments the Senior Superintendent of Police, Gujrat has admitted the factual position about the registration of the aforesaid criminal case without the recovery of the illicit arms. However, he has taken up the stand that afterwards during the raid the illicit arms were recovered from the house of the petitioner from his possession.
This writ petition is admitted for regular hearing and the comments are treated as written statement. -
I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate General. I have gone through the file. There is no need to disagree with the learned counsel for the petitioner who canvassed before me that without the recovery of the illicit arms the case under section 13-B of the Arms Ordinance, 1965 could not be registered. I would simply express that it is an over-doing on the part of the Police Officer. The learned A.A.-G. did not contest the aforesaid legal proposition. Legally the law can be set in motion after an offence is committed and then the matter is reported to the Police i.e. First Information Report is registered which is lacking in the instant matter. In this view of the matter, it can safely be held that there was no legal or factual justification for the registration of the case required and desired to be quashed through the filing of this petition.
For what has been said above, I accept this writ petition and quash F.I.R. No.361 registered on 23-10-1999 under section 13-B of the Arms ordinance, 1965 at Police Station Dinga, District Gujrat. However, I leave the parties to bear their own costs.

H.B.T./J-3/L Petition accepted.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1324 #

2000 P Cr. L J 1353

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

MUHAMMAD USMAN and 4 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.599 of 1995, heard on 12th April, 2000

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(c)‑‑‑Grave and sudden provocation, plea of‑‑‑Accused was not related to the lady who allegedly was seen love‑making with her paramour‑‑Plea of grave and sudden provocation was available only to a person who happened to be related to lady with whom love‑making was being made‑‑Relationship either by blood or contract could only deprive a person of his power of self‑control in such a situation and under influence of his impulse he could be driven to the extreme end of causing death of both lady ‑and her paramour and it was only in that eventuality that punishment was awarded under S.302(c), P.P.C.‑‑‑Persons not connected or related with the lady, could not be given benefit of said plea because that would entail extreme dangerous ramifications‑‑‑Lover would have a licence to kill his beloved in case she was seen with a new and changed paramour.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/148/149‑‑‑Appreciation of evidence‑‑‑Motive of double murder was that accused persons were suspicious that deceased lady had illicit connection with male deceased and accused persons in furtherance of their common object caused death of both‑‑‑Only one accused happened to be nephew of husband of deceased lady and no other accused was shown to be related to the said deceased‑‑‑Accused who was related to the deceased lady had not been attributed any role except for being present at the spot‑‑‑None of the accused in their statements under S.342, Cr.P.C. had taken the plea that they had lost their power of self‑control by grave and sudden provocation and whilst deprived of their feelings they committed the double murder‑‑‑Presence of witnesses at place where they claimed to have seen occurrence, was highly doubtful‑‑‑Both witnesses were closely related to deceased and house where they were stated to be present at time of occurrence belonged to father of deceased‑‑‑Presence of witnesses at place of occurrence being doubtful, their testimony did not inspire confidence‑‑Occurrence was not witnessed by anyone‑‑‑Evidence on record showed that both deceased were found in compromising position‑‑‑Chemical Examiner Report stated that three vaginal swabs taken from vagina of deceased lady were found to be stained with semen‑‑‑Husband of deceased lady had gone to another district when occurrence took place‑‑‑Conviction and sentence awarded to accused were set aside extending benefit of doubt in their favour.

Sardar Muhammad Latif Khan Khosa, Ch. Muhammad Abdus Saleem, Ch. Inayatullah Cheema arid M.M. Arshad for Appellants.

Malik Saeed Hassan for the Complainant.

A.H. Masood for the State.

Date of hearing: 12th April, 2000.

JUDGMENT

RIAZ KAYANI, J.‑‑‑ Muhammad Usman son of Sher Muhammad, Abdul Rehman son of Suleman, Muhammad Luqman son of Muhammad Ramzan, Khalid son of Muhammad Tufail and Muhammad Yousaf son of Din Muhammad have through this appeal assailed the validity of the judgment, dated 17‑9‑1995 passed by the Additional Sessions Judge, Chiniot whereby all of them were convicted under section 302/149, P.P.C. for Qatle‑Amd of Muhammad Aslam and Mst. Razia and each one of them was sentenced to death on two counts. All the appellants were also sentenced under section 148, P.P.C. to undergo two years' R.I. each. Sentence of death awarded to the appellants was subject to confirmation by this Court under section 374, Cr.P.C.

Sher Muhammad complainant has filed a revision against the order of acquittal of Muhammad Haroon which has been impugned in the present petition. We intend to deal with all these matters through this single judgment.
The occurrence which resulted in the double murder of Muhammad Aslam and Razia Bibi took place on the night of 11th October, 1992 at 10/11 p.m. in the house of Muhammad Ismail husband of Mst. Razia situated in Chak No.151/J.B. 20 miles from Police Station Saddar, Chiniot, District Jhang. The complaint was made by Sher Muhammad son of Rehmatullah closely related to deceased Muhammad Aslam and was recorded by Saeed Akhtar, S. H. O. at the police station on 11‑10‑1992 at 6‑05 a. m.
The prosecution version succinctly described in the complaint, authored by Sher Muhammad, is that he alongwith Muhammad Iqbal son of Muhammad and Muhammad Eisa his brother were present in the house of Muhammad Hussain when at 10/11 p.m. Muhammad Aslam alias Bhola son of Muhammad Hussain was coming back to his house from his lands and had hardly reached the door of his house when all of sudden Muhammad Haroon armed with .12 bore gun, Muhammad Yaqoob armed with Sota, Khalid armed with Khanjar, Abdul Rehman, Usman and Laqman all armed with Sotas and Muhammad Yousaf empty‑handed residents of the village who were all standing at the door of Muhammad Ismail son of Muhammad Ibrahim encountered Muhammad Aslam. Muhammad Yousaf took Aslam in his fold, picked him up from the ground and started taking him towards the house of Ismail. On the hue and cry raised by Muhammad Aslam, he alongwith Eisa were attracted and started going after the accused but due to threats meted out by Haroon and others that if they come near they would be killed; they stood in the lane whereas Muhammad Aslam was taken inside the house of Ismail and they saw from the door of the house of Ismail that Haroon fired with his .12 bore gun which hit Aslam on the left side of his knee from the back. Simultaneously, Khalid gave repeated blows with his Khanjar on the abdomen, right finger, left hand at the knee joint and left shin. Muhammad Usman and Muhammad Laqman kept on raising Lalkaras that if anybody comes near them he would be murdered. Muhammad Aslam succumbed to his injuries at the spot. The accused thereafter dragged the dead body of Muhammad Aslam inside the room. Yaqoob and Usman exhorted their companions that Razia Bibi should be brought and murdered and the dead bodies should be kept in one room upon which Haroon, Abdul Rehman and Yousaf ran towards the room where Mst. Razia Bibi was present and forcibly dragged her out whereby Yaqoob and Abdul Rahman caught hold of her and Khalid gave her repeated blows with his Khanjar striking on her abdomen and other parts of the body killing her at the spot. The dead body of Razia was dragged and kept in the same room where already the dead body of Aslam was lying. He alongwith Eisa saw the occurrence in the light of an electric bulb. On their hue and cry lot of persons who were residents of the village gathered but Haroon resorted to aerial firing and dispersed all of them. Murders were committed it was submitted at the behest of Muhammad Shafi son of Noor Muhammad.
Motive for the occurrence is that Luqman and others were suspicious that Mst. Razia Bibi and Muhammad Aslam had illicit connections and for this reason all the accused in furtherance of their common object caused death of Muhammad Aslam and Mst. Razia Bibi. Dead bodies of Aslam and Razia Bibi are lying in the room inside the house of Muhammad Ismail.
Saeed Akhtar, Investigating Officer P.W.11 after recording the complaint left for the place of occurrence and prepared the inquest reports Exh.P.D./II and Exh.P.D./III whereafter the dead bodies were sent to the Tehsil Headquarters Hospital, Chiniot for post‑mortem examination. Bloodstained earth from the place where Aslam was murdered was taken in possession vide memo. Exh.P.F. and earth from the place where Razia Bibi was murdered was also taken in possession vide memo. Exh.P.G. Statements of the witnesses were recorded under section 161, Cr.P.C. On 15‑10‑1992 all the accused were arrested and on 26‑10‑1992 Khalid got recovered bloodstained dagger P.7 which was taken in possession vide memo. Exh.P.N. Haroon on 27‑10‑1992 got recovered gun P.6 from his residential room which was without licence and was secured vide memo. Exh.P.J. On the same day Usman got recovered Sota which was taken in possession vide memo. Exh.P.A. Abdul Rahman got recovered Sota vide memo. Exh.P.L. Similarly, Luqman got recovered Sota which was secured vide memo. Exh.P.M.
Dr. Altaf Hussain, Medical Officer, Tehsil Headquarters Chiniot appeared as P.W.3 and stated that on 11‑10‑1992 he performed the postmortem examination on the dead body of Muhammad Aslam aged 25 years and found the following injuries:‑

(1) Stab wound 3 c.m. x 1 c.m. on front of abdomen in right hypochondrium.

(2) Stab wound 6 c.m. x 3 c.m. on front of abdomen wound is 5 c.m to the right of umblicus.

(3) Incised wound 3‑1/2 c.m x 1/2 c.m. on front of lower part of left upper arm towards inner side. Wound is 2 c.m. above the elbow joint.

(4) Incised wound 3 x 2 c.m. on the back of middle part of left fore arm.

(5) Incised wound 3 x c.m. on the back and outer aspect of right index finger.

(6) Lacerated wound 5 x 5 c.m. with inverted margins on medial aspect of left knee joint. Blackening was present. It is wound of entry.

(7) Lacerated wound 12 x 6 c.m. on the back of left knee joint, joint cavity open, muscle, blood vessel cut. Margins everted. It is wound of exit.

In the opinion of the doctor death was result of haemorrhage, shock and injury to vital organs under injuries Nos. l and 2 which were sufficient to cause death in the ordinary course of nature. Injuries Nos.6 and 7 were grievous. Rest of the injuries were simple. Injuries Nos. l, 2, 3, 4 and 5 were caused by sharp‑edged weapon whereas injuries Nos.6 and 7 by fire‑arm weapons. All the injuries were ante‑mortem. Duration between injuries and death was immediate and between death and post‑mortem about 18 hours. There were cuts on Qameez and Bunian which were signed by him.

On the same day post‑mortem examination on the dead body of Mst. Razia, aged 35 years was also conducted. The doctor found the following injuries on her person:‑‑

(1) Incised wound 4 x 3 c.m. in front and top of head bone deep.

(2) Incised wound 2‑1/2 c.m. x 1 c.m. on back of lower part on right upper arm skin deep.

(3) Incised wound 3 c.m. x 1 c.m. on the back of upper part of right fore‑arm, below 4 c.m. of elbow joint.

(4) Incised wound 2‑1/2 c.m. on the palmer surfaces of right hand in between thumb and index finger, it is muscle deep.

(5) Incised wound 3 x 1 c.m. on back of left elbow joint.

(6) Incised wound 1‑1/2 c.m. x 1 c.m. on the lateral aspect of right breast, 6 c.m. away and below of nipple.

(7) Stab wound 3 x 1 c.m. in right hypochondrium.

(8) Stab wound 2‑1/2 x 1 c.m. in epeigastrin.

In the opinion of the doctor death was caused due to haemorrhage, shock and injuries to vital organs by injuries Nos.7 and 8,which were sufficient to cause death in the ordinary course of nature. All the injuries were caused by sharp weapon and were ante‑mortem. Injuries Nos.l to 6 were simple. Probable duration between injuries and death was immediate and between death and post‑mortem about 19 hours.

Doctor also took vaginal swabs of Razia and sent the same to the Chemical Examiner for opinion. The report of the Chemical Examiner Exh.P.O. indicated that vaginal swabs, three in number, were stained with semen.
After submission of the, challan appellants were indicated, they denied the charge and pleaded not guilty. During the examination the prosecution examined as many as 11 witnesses. The ocular testimony account was furnished by Sher Muhammad P. W.9 and Eisa P.W.10.
Public Prosecutor tendered in evidence report of the Chemical Examiner Exh.P.P. which concluded that Khanjar recovered at the instance of Khalid was stained, with blood and report of the Serologist Exh.P.031 further proved that the blood was of human origin.
All the appellants when examined under section 342, Cr.P.C. denied their participation in the occurrence as well as recovery of weapons from them and stated that the case against them was false and the P.Ws. gave evidence because of enmity.
Learned counsel appearing for the appellants vehemently contested the ocular testimony and submitted that both the eye‑witnesses were chance witnesses and no reason whatsoever acceptable to a prudent mind was given showing their presence at the spot when the occurrence took place. A feeble attempt was made to argue in the alternative that both the deceased were done to death as they were seen in a compromising position. Conversely, counsel for the complainant argued that no relationship on record was brought between Mst. Razia and the appellants to show that there was relationship by blood or contract so as to provoke them to kill both of them after seeing them in pario‑delicto, and that there was no reason for the witnesses to falsely implicate them in the present case.
We have given our anxious consideration to the whole case by attending to the arguments of the respective, counsel and perusing the record. The plea of grave and sudden provocation is only available to a person who haypens to be related to the lady with whom love‑making is being made, as relationship either by blood or contract can only deprive a person of his f power of self‑control in such a situation and under the influence of his impulse he can be driven to the extreme end of causing death of both the lady and her paramour. It is only in this eventuality that punishment is awarded under section 302(c) P P C Persons not connected or related with the lady cannot be given benefit of this plea because that would entail extreme dangerous ramifications A lover will have a licence to kill his beloved in case she is seen with a new and changed paramour. In the instant case except for Luqman who happens to be the nephew of Ismail husband of Mst. Razia no other accused is shown to be related to Mst. Razia. Further nothing has come on record to show any relationship of Luqman either with the remaining appellants or with the acquitted accused Haroon. Luqman has not been attributed any role except for being present at the spot rather we have in evidence that Khalid was hired as an assassin to kill both the deceased. None of the appellants in their statements under section 342, Cr.P.C. has taken the plea that they lost their power of self‑control by grave and sudden provocation and whilst deprived of their feelings they committed the double murder. Though a brittle attempt has been made by suggesting in crossexamination to the witnesses that the killing was committed when the deceased was seen in compromising position but for reasons referred to above benefit of such plea cannot be extended.
Coming to the merits of the case, the occurrence is said to have taken place at 10/11 p.m. in the month of September. The ocular testimony account has been furnished by Sher Muhammad P.W.9.who also happens to be complainant and brother of Eisa Sher Muhammad although is resident of the same village but admits that his house is at a distance of 2‑1/2 Kilias from the house of Muhammad Hussain where he happened to be present at the time of occurrence. The reason for his presence at the house of Muhammad Hussain is that he works with Iqbal at his fertilizer shop and due to settlement of. accounts with Iqbal a dispute had arisen which was to be settled at the house of Muhammad Hussain and he was present in the house in this connection. He admits that he or his brother Eisa had no share of fertilizer business with Iqbal neither he remembers how many bags of fertilizer were purchased from Iqbal for which the accounts was to be settled. He also is unaware as to when he obtained fertilizer bags from Iqbal and whether he paid any cash to him by himself or through Eisa. Register where such accounts were written was with Iqbal but could not be produced. Similarly, Eisa P.W.10 admitted that he was an Inspector in the WAPDA Department and on the day of occurrence although he was not on leave yet he remained absent from his duty and came to his village to settle the accounts with Iqbal regarding fertilizer and subsequently he made an application in his office and got the leave sanctioned. His village, according to him, was 17 miles away from Faisalabad. The discussion would lead us to the conclusion that the presence of these two witnesses at the house of Muhammad Hussain, where they claimed to have seen the occurrence, becomes highly doubtful. G, Both of them are closely related to the deceased and the house where they were stated to be present at the time of occurrence belongs to Muhammad Hussain father of the deceased. Undoubtedly, no enmity has been brought on record between, these two witnesses and the appellants, but their presence being doubtful their testimony does not inspire confidence and it seems that in order to claim to have seen the occurrence they have shown their presence in the house of Muhammad Hussain. Their inactivity to save Aslam from being dragged in the street towards the house of Ismail or at least an attempt to raise hue and cry so as to attract the inhabitants of the locality has further cemented our doubt that these two witnesses were not present when the occurrence took place. Their statement that while standing in the door of the house of Ismail they saw the occurrence in the light of an electric bulb is further belied by the absence of any such bulb being indicated in the site‑plan.
Investigating Officer Saeed Akhtar, Inspector while appearing as P.W.11 admitted that he did,not see any broken door of the house of Ismail where the occurrence took place and also did not notice any sign of dragging from the spot of murder to the room where the dead bodies were lying and no sign of struggle was either shown to him or noted by him from where Aslam was lifted and taken to the house of Ismail. He admits that Sher Muhammad and Eisa P.Ws. did not disclose to him reasons of their presence in the house of Muhammad Hussain, when the occurrence took place and that no paper about settling of the disputed account regarding fertilizers between Iqbal and the witnesses was ever produced before him during the investigation. The Investigating Officer further belied the version of the eyewitnesses that Aslam was lifted from the street in front of his house and taken to the house of Ismail where he was murdered alongwith Mst. Razia because according to his investigation Aslam was not lifted, from, in front of the house of his father Muhammad Hussain and in fact Aslam and Razia were found in the house of Razia committing Zina when they were murdered in the room.
Upshot of the discussion leads us to the firm conclusion that the occurrence was not witnessed by anyone. However, one thing has become clear that both the deceased were found in compromising position as authenticated by report of the Chemical Examiner Exh.P.Q. who found the Three vaginal swabs taken from the vagina of Mst. Razia to be stained with semen. Her husband Ismail, as it has come in evidence worked at Faisalabad p and was not present when the occurrence took place. This fortifies the stark fact that both the deceased were done to death in the room of the house belonging to Ismail. Who was responsible for causing death has not been proved by the prosecution. Therefore, extending benefit of doubt in favour of the appellants we accept their appeal set aside the conviction and sentence recorded by the trial Judge vide his judgment, dated 17‑9‑1995. The appellants shall be set free if not required in any other case. Murder Reference is answered in the negative and death sentence imposed upon Muhammad Usman. Abdur Rehman, Muhammad Luqman, Khalid and Muhammad Yousaf is not confirmed.
Criminal revision against the order of acquittal is not maintainable. We would have converted it into an appeal had it not been barred by 1 year and 1 month. Therefore, the same stands dismissed.

H.B.T./M‑144/L Order accordingly

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1340 #

2000 P Cr. L J 1381

[Lahore]

Before Khalil-ur-Rehman Ramday, J

MUHAMMAD RAMZAN---Petitioner

versus

THE STATE---Respondent

Criminal Appeal No. 156 and Criminal Q. Reference No. 1 of 1993, decided on 11th May, 2000.

Penal Code (XLV of 1860)---

----Ss. 334, 337-P & 338-D---Appreciation of evidence---Sentence of Qisas---Eye-witnesses, who were independent witnesses of occurrence, had no reason or motive to falsely involve accused---Occurrence, though had taken place at night, but since prosecution witnesses knew the accused very closely and intimately identification of accused at time of occurrence could not have posed any serious problem for them---Delay in lodging F.I.R. stood reasonably explained---Nothing was brought on record to indicate any enmity of injured prosecution witnesses with someone else which could have led to an inference that offence in question might have been committed by some other person and accused might have been substituted for the real offenders,--No exception could be taken to the finding o guilt as recorded against accused by Trial Court in circumstances---Conviction of accused under S.334, P.P.C. was maintained but Qisas which was to be executed in public whereby left leg of accused was to be amputated Vas not confirmed and instead accused was ordered to suffer eight years' R.I. by way of Tazir.

M. Abdul Majid Raghib with M. Ahsan Sipra for Appellant.

Khalid Naveed Dar, A.A.-G. for the State.

Nasira Javed Iqbal: Amicus curiae.

Date of hearing; 8th October, 1999.

JUDGMENT

One Ramzan was tried by a learned Magistrate, with powers under Section 30 of the Cr.P.C. at Shahpur, for having made a murderous assault on one Sahib Khan. Through his judgment, dated 2-3-1993 the said learned trial Magistrate convicted the said Ramzan under section 334, P.P.C. and directed amputation of his left leg above knee-joint by way of Qisas and the learned trial Magistrate further ordered that the said punishment shall be executed in the City Stadium of Shahpur in consultation with the authorised Medical Officer.

Criminal Q. Reference No. 1 of 1993 is a reference submitted by the said learned trial Court under section 338-D of the P.P.C. seeking Confirmation of the abovementioned sentence of Qisas while Criminal Appeal No. 156 of 1993 is an appeal filed by Muhammad Ramzan convict to impugn the above noticed conviction and punishment recorded against him. Both these matters are being disposed of together through this single judgment.
The occurrence in question had taken place on 11-6-1992 at about 10-00 p.m. near the house of Muhammad Ramzan accused in the area of Kot Bhai Khan about 7 Kms. from Police Station Jhawarian of District Sargodha and the said occurrence had been reported at the said police station, the same night at about 4-00 a.m. by one Anwar-ul-Haq. Narrating the occurrence and the background leading thereto, Anwar-ul-Haq complainant had mentioned that at the time of occurrence, he alongwith Sahib Khan, Muhammad Bakhsh and Muhammad Ameer were going on foot from the Data of the said Sahib Khan to Adda Kot Bhai Khan and just as they had reached near the house of. Muhammad Ramzan accused, he suddenly emerged there with a .12 bore gun; that the said Ramzan accused then raised Lalkara and fired a shot which landed on the backside of the left leg of said Sahib Khan, who fell down injured; that the complainant and others tried to apprehend Ramzan accused, who, however, managed to slip away the complainant had further alleged that Ramzan accused was a Kardar (Manager) of Sahib Khan injured; that Ramzan accused had embezzled a large amount of money of the said Sahib Khan who had given abuses to Ramzan accused and had even belaboured him; that the said Sahib Khan had dismissed Ramzan accused from service and also used to claim the return of the embezzled amount of money from the accused and it was on account of this grievance that the said Ramzan accused had mounted an assault on the said Sahib Khan.
Muhammad Anwar Khan, S.-I. /S. H. O. (P.W.1) visited the place of occurrence where he found blood-stained earth which was seized by him vide memo. Exh.P.C., Ramzan accused appeared before him on 20-6-1992 and produced the gun P.1 alongwith two live cartridges P.2 and P.3 which were secured by him vide memo. Exh.P.D.
Dr. Hafiz Abdul Rehman (P.W.4) had examined Sahib Khan on the night of occurrence at about 1-00 p.m. and had found fire-arm wounds of entrance on the back and inner back of his left thigh, back of the left knee and back of the left leg which had exited from the front side of different parts of his left leg. Dr. Muhammad Tariq Sohail (P.W.8), an Associate Professor of Orthopaedics of Mayo Hospital, Lahore amputated the left leg of Sahib Khan (P.W.), from above the knee joint, on 15-6-1992 in Rehman Clinic at Lahore.
When confronted with the prosecution case, the appellant pleaded that the real assailant had escaped unidentified from the place of occurrence due to darkness of the night; that he was a poor man while Sahib Khan (P.W.) was an influential landlord of the area and that he had been falsely implicated in the case due to suspicion.
The prosecution offered Anwar-ul-Haq (P.W.5), Muhammad Ameer (P.W.7) and the injured victim of the occurrence namely, Sahib Khan as the eye-witnesses of the said occurrence. Muhammad Ameer (P.W.7) is a driver who had gone to Sargodha to drop the family of Sahib Khan (P.W.) and had claimed that on his way back to his village the said car had gone out of order which was left at Adda Kot Bhai Khan and he then had gone to the Dara of Sahib Khan and had informed him of the same at which Sahib Khan, Anwarul-Haq (complainant) and Muhammad Ameer (P.W.) were going towards the said Adda of Kot Bhai Khan when on the way the said Sahib Khan was attacked by Muhammad Ramzan appellant. The said Adda is about half a kilometer from the Data of Sahib Khan.
All these three eye-witnesses are independent witnesses of the occurrence in question: They had no reason or motive to falsely involve the appellant in this occurrence. It is true that the occurrence in question had taken place at night but since the injured P.W. and the other two eyewitnesses knew the appellant very closely and intimately, therefore, the identification of the appellant at the time of occurrence could not have posed any serious problem for these eye-witnesses. Needless to -add here that at the time of firing of the shot, the appellant was alleged to be about 8/10 feet away from the injured P.W. and the other eye-witnesses. It is not the kind of distance from which the identity of the person rather well-known to the eyewitnesses could have posed any difficulty. The delay in the lodging of the F.I.R. also stood reasonably explained because the injured P.W., who was A profusely bleeding, was immediately rushed to the local hospital from where he was referred to the District Headquarters Hospital at Sargodha and it was on his return from Sargodha Hospital that the complainant had lodged the F.I.R. of the present case at about 4-00 a.m. on the very night of occurrence. Nothing was brought on record to indicate any enmity of the injured P.W. with someone else which could have led to an inference that the offence in question might well have been committed by some other person and the appellant might have been substituted for the real offender.
Having examined the entire evidence available on record and having heard the learned counsel for the parties, I find that no exception could be taken to the finding of guilt as recorded against the appellant by the learned trial Court. His conviction under section 334 of the P.P.C. is consequently, maintained.
This brings me to the question of confirmation or otherwise of the punishment of Qisas imposed upon the appellant.
It may be mentioned here that in view of the legal and factual questions involved in this matter, I had sought the assistance of Mr. Ejaz Hussain Batalvi, Advocate, Dr. Riaz-ul-Hassan Gilani, Advocate, Mrs. Nasira Javed Iqbal, Advocate, Ms. Asma Jahangir, Advocate and Dr. Ejaz Ahsan, the then Professor of Surgery and Principal of King Edward Medical College, Lahore.
The provisions of section 337-P of the P.P.C. command that Qisas be executed in public and it was in obedience to this requirement of law that the learned trial Magistrate had directed the amputation of the appellant's left leg in the Stadium of the City of Shahpur.
On my query, Dr. Ejaz Ahsan, who, as has been mentioned above, was a renowned Professor of Surgery and the Principal of the King Edward Medical College, had categorically opined that amputation of leg from above the knee joint of a human being involved a major surgical operation. He had added that all surgical operations were required to be done in the specified operation theaters which guaranteed a completely disinfected environment and availability of a large number of facilities to meet any emergent situation arising out of such an operation to ensure the safety of the life of such a human being. He had gone on to add that the operation theatres am where in the world permitted only authorized persons and no member of the public was to be permitted into such operation theatres to avoid any fatal consequences, emanating from infection. He was of the firm views that a major surgical operation to amputate a major limb of a. body of a human being, could, in no circumstances, be carried out at a public place, such as a public stadium without exposing the person, concerned to serious danger and threat to his life.
Fortified by the opinion of Dr. Ejaz Ahsan, I am of the considered view that executing the punishment of Qisas in the, present case on the person of the appellant in a public place would not be possible without endangering the life of-the appellant. The provisions of section 334, P.P.C. enjoined the imposition of punishment of Qisas in consultation with some authorized Medical Officer. The learned trial Magistrate had unfortunately awarded the punishment of Qisas to the appellant in the present case, in the above noticed manner, without consulting an authorized Medical Officer.
Faced with this situation, I am left with no alternative but to refuse to confirm the impugned punishment of Qisas awarded to Muhammad Ramzan, which punishment is consequently not confirmed. He is instead ordered to suffer eight years' R.I. by way of Tazir. He is also directed to pay Arsh which is one-half of the amount of Diyat in terms-of section 337-R of the P.P.C. The prescribed amount of Diyat during the days of occurrence was Rs.1,06,967.50 and the appellant is, thus, directed to pay an amount of Rs.53,483.75 as Arsh. This entire amount of Arsh shall be paid to Sahib Khan (P.W.) as required under section 337-Z of the P.P.C. The appellant shall be allowed the benefit of the provisions of section 382-B of the Cr.P.C.
Since it is available on record that the appellant was a servant of Sahib Khan (P.W.); therefore, he does not appear to be a man with the kind of means which could permit him to pay the entire amount in a lump sum. Consequently, in terms of-section 337-X of the P.P.C., I permit the appellant to pay this amount of Arsh in 36 monthly instalments from today. It is further directed that when the appellant has suffered the entire period of 8 years' R.I. awarded to him, he shall not be kept in custody for the purpose of securing payment of Arsh and shall instead be released on bail if he furnishes security equal to the amount of Arsh to the satisfaction of the learned trial Court.
Criminal Q. Reference No. 1 of 1993 and Criminal Appeal No. 156 of 1993 are disposed of in the above terms.
Before I part with this judgment, I would like to make a mention of certain matters which have come to my notice in the course of deciding the above matters and which warrant attention and action on the par of the lawmakers and on the part of tile executive Government.
The Legislature and the Government should seriously consider the desirability of a direction relating to the execution of punishment of Qisas, in hurt cases, in public. The law-makers should look for any Injunction contained either in the Holy Qur'an or in the Sunnah of Holy Prophet (p.b.u.h.) which categorically command the kind of punishment which is subject-matter of the present proceedings, to be executed only in public. This is a seriously debateable situation and deserves a serious probe and consideration by the Legislature and the executive Government.
There is yet another aspect of the matter which also warrants attention of those concerned.
By virtue of the provisions of section 30 of the Cr.P.C. the offence punishable under section 334 of the P.P.C. is triable by a Magistrate invested with powers under the provisions of the said Section 30 of the Cr.P.C. Against conviction of a person inter alia by a Judicial Magistrate, an appeal lies to the Court of Sessions although in certain situations mentioned in the proviso to section 408 of the Cr.P.C. the appeals are directly competent before the High Court from conviction and punishments recorded by the Magistrates but the punishment of Qisas awarded for causing hurt does not fall within the ambit of the said situations falling in the proviso to said section 408 of the Cr.P.C. On the other hand, according to section 338-D, P.P.C. such a sentence of Qisas awarded for causing hurt could not be executed unless the same was confirmed by the High Court. Thus, the provisions of section 30 of the Cr.P.C. read with the provisions of section 408 of the said Code and the provisions of section 338-D of the P.P.C. create a serious anomaly which requires immediate attention and resolution by the law-giver and the Government. One way out of this problem is that such-like cases could be included under clause (b) of the proviso to section 408 of the Cr.P.C. It may be added here that in the peculiar circumstances of the present case, I have decided the appellant's present Appeal bearing No.156 of 1993 in exercise of the powers vested in this Court under section 561-A of the Cr.P.C.
A copy of this judgment shall be sent forthwith to the Secretary, Ministry of Law and Parliamentary Affairs for his information, attention and action.

H.B.T./M-169/L Order accordingly

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1353 #

2000 P Cr. L J 1411

[Lahore, Before Ali Nawaz Chowhan, J

GHULAM SHABBIR---Petitioner

versus

THE STATE---Respondent

Writ Petition No.3080 of 2000, decided on 18th April, 2000

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

----Ss. 61 & 167---Remand order---Person arrested could .not be detained by police for more than twenty-four hours without a special order of a Magistrate under S.167; Cr.P.C.

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

----S. 173---Report of Police Officer---Submission of---Police Officer after the completion of investigation has to submit report under S.173, Cr.P.C. which is referred to as challan.

----Ss. 61, - 167 & 173---Remand order---Obtaining of---Submission of challan---Person arrested by police has to be immediately brought before a Magistrate having jurisdiction---If police needed time for production of such person before Magistrate having jurisdiction, it was authorised to obtain orders from a Magistrate other than the one having jurisdiction---Police, after such order was to produce accused before the Court of Magistrate having jurisdiction---If a person was arrested and his investigation could not be completed within a period of twenty-four hours as fixed by S.61, Cr.P.C. .matter was to be reported to the nearest Judicial Magistrate---If the matter was triable by Executive Magistrate, expression "nearest Magistrate" would mean Executive Magistrate, otherwise a Judicial Magistrate---Further detention beyond twenty-four hours was permissible after a reference was made to a Magistrate under S.167, Cr.P.C. which tantamount to "remand" to police---Report was then to be submitted under 5.173, Cr.P.C. which was to be submitted through office of Public Prosecutor to Magistrate empowered to take cognizance of offence on a police report.

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

----Ss. 63, 167, 169 & 173---Police Rules, 1934, 8.24.7---Penal Code (XLV of 1860), S.364---Constitution of Pakistan (1973), Art.199---Constitutional petition---Release of accused---Powers of Magistrate, exercise of---If before tiling a report under 5.173, Cr.P.C. Police found that evidence against arrest of accused was deficient, he would place a report stating that evidence was insufficient or a reasonable ground of suspicion was lacking in the case for justifying forwarding of an accused---Police would report to a Magistrate empowered to take cognizance of offence asking for release of accused which would be done under S.169, CrY.C., read with 8.24.7 of Police Rules, 1934---Order of release had to be passed only by Magistrate empowered to take cognizance of offence on police report---Where offence against accused fell under 5.364, P.P.C., Executive Magistrate had no jurisdiction to exercise jurisdiction---Executive Magistrate having violated law by taking jurisdiction in the matter, order passed by such Magistrate was set aside being without jurisdiction.

Sardar Tariq Sher for Petitioner.

Tahir Haider Wasti, A.A.-G. for the State.

ORDER

This writ petition has' been filed against a discharge order passed by the Executive Magistrate. The matter pertains to F.I.R. No.98 of 1999, under section 364, P.P.C., lodged at Police Station Kundal, District Muzaffargarh.

According to the F.I.R. Muhammad Tahir, the son of the informant was visiting his friend Muhammad Abbas from another village. Later Muhammad Abbas came and informed him that while taking a bath his son got drowned in the river.
The discharge report submitted by the S.-I./S.H.O., Police Station Kundal says:--
It was presented before the Executive Magistrate, who passed the following orders:--

"Accused produced in custody. The police has submitted file for discharge of accused. I have perused the file. There is no eyewitness of the alleged occurrence. After the days physical police has come to the conclusion that the accused did not commit the offence. There is no connecting evidence against the accused. I agree with the discharge report. Therefore, Ghulam Abbas and Saifullah accused. are hereby discharged."

According to the petitioner, the Executive Magistrate had no jurisdiction to pass the discharge order and that the police should be directed to continue the investigation.
The learned counsel for the petitioner and the learned A.A.-G. have been heard in the case.
The precise question is whether an Executive Magistrate could have passed the aforementioned order in a case which he could not try.
Section 6 of the Cr.P.C. reflects the classes of the Criminal Courts/Magistrates. Section 11 of the Cr.P.C. reflects the powers of the Judicial Magistrate. Whereas the powers of the Executive Magistrates are reflected in section 13 of the Cr.P.C.
Section 28 of the Criminal Procedure Code speaks of the trial of the offences and it reads as follows:--

"28. Offences under Penal Code.--- Subject to the other provisions of this Code any offence under the Pakistan Penal Code may be tried---

(a) by the High Court, or

(b) by the Court of Sessions, or

Provided that the offences falling under Chapters VIII, X, XIII and XIV of the Pakistan Penal Code (Act XLV of 1860), except offences specified in section 153-A and section 281 of the said Code,, shall be tried by the Executive Magistrates and the expression 'Magistrate' used in the said eighth column shall mean Executive Magistrate of the respective class."

Section 32 of the Cr.P.C. lays down the maximum sentences which may be passed by the Judicial Magistrate.
Section 36 of the Cr.P.C. reads as follows:-

"36. Ordinary powers of Magistrates---- All Judicial and Executive Magistrate, have the powers hereinafter respectively conferred upon them and specified in the Third Schedule. Such powers are called their 'ordinary powers'."

Chapter 4 of the Cr.P.C., inter alia, pertains to arrest of persons by the police and otherwise. . .
According to section 60 of the Cr.P.C. a person is to be taken before a Magistrate. It reads as follows:--

"60. Person arrested to be taken before Magistrate or a Officer-incharge of police station.--- A Police Officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take and send the person arrested before a Magistrate having jurisdiction in the case or before the Officer-in-charge of a police station: "

When a person is arrested he cannot be detained by a police for more than 24 hours without a special order of a Magistrate under section 167 of the Cr.P.C. Section 167 of the Cr.P.C. reads as follows:--

167 Procedure when investigation cannot be completed in twenty-four hours.--- (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed. by section 61, and there are grounds for believing that the accusation or information is well-founded, the. Officer- in-Incharge of the police station (or the Police Officer making the investigation if he is not below the rank of Sub-Inspector) shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereafter prescribed relating to the case, and shall at the same time, forward the accused to such Magistrate.

Explanation.-- For the purpose of this section, in the cases triable by the Executive Magistrate, the expression 'nearest Magistrate' means the Executive Magistrate and , in all other cases the Judicial Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has no jurisdiction to try the case or (send) it for trial, and considers further detention unnecessary. he may order the accused to be forwarded to a Magistrate having such jurisdiction;

Provided that no Magistrate of the third class, and no Magistrate of the second class not specially empowered in this behalf by the Provincial Government shall authorise detention in the custody of the police.

After the investigation is completed a Police Officer is supposed to submit a report which is called a report under section 173 of the Cr.P.C. and is also referred to as a challan. Section 173 of the Cr.P.C. reads as follows:--

"173. Report of Police Officer.-- (1) Every investigation under this Chapter shall be completed. without unnecessary delay, 'and as soon as it is completed, the officer-in-charge of the police station shall through the Public Prosecutor:

(a) forward to a Magistrate empowered to take cognizance of the offence on a police report, a report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his-bond, and if so, whether with or without sureties, and .

(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given;

"Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer-in-charge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the-Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so

(2) Where a superior Officer of Police has been appointed under section 158, the report shall in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer-in-charge of the police station to make further investigation.

(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks

(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial;

Provided that the same shall be paid for unless the Magistrate, for some special reason, thinks fit to furnish it free of costs.

(5) Where the officer-in-charge of a police station forwards a report under subsection (1), he shall alongwith the report produce the witnesses in the case except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other Court on the date fixed for trial."

Therefore, according to the scheme of the Cr.P.C. a person arrested has to be immediately brought before a Magistrate having jurisdiction and if he C needs time for such production he is authorized to obtain orders from a Magistrate other than the one having jurisdiction and after such orders has to produce the accused before the Court of the Magistrate having jurisdiction.

Whenever a person is arrested and his investigation cannot be completed within a period of 24 hours as fixed by section 61, the matter is to be reported to the nearest Judicial Magistrate and the explanation makes it clear that in case of a matter triable by an Executive Magistrate the expression nearest Magistrate would mean the Executive Magistrate otherwise, a Judicial Magistrate. It is after a reference is made to a Magistrate under section 167 of the Cr.P.C. that a further detention beyond 24 hours is permissible and this is called as remand to the police.
After this, a report is to be submitted under section 173 of the Cr.P.C. which is to be submitted through the office of the Public Prosecutor and is to be forwarded to a Magistrate empowered to take cognizance of the offence on a police report.
If, before filing a report under section 173 of the Cr.P.C., the police finds that the evidence against the arrested accused was deficient, it then places a report stating that there was insufficient evidence or a reasonable groufd of suspicion was lacking in the case for justifying the forwarding of an accused. He reports (to a Magistrate empowered to take cognizance. of the offence) asking for release of the accused. This is done under section 169 of the Cr.P.C. read with Rule 24.7 of the Police Rules, Volume 3. Section 169 of the Cr.P.C. reads as follows:--
Release of accused when evidence deficient--- If, upon an investigation under this Chapter, it appears to the Officer-in-charge of - the police station, or to the Police Officer making the investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such Officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or send him for trial. "
However, an accused whenever before a Court may be discharged under section 63 of the Cr.P.C. which reads as follows:--

"63. Discharge of person apprehended.--- No person who has been arrested by a Police Officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate."

This may be done by' a Magistrate before whom an accused is produced under sections 60, 61 or 167 of the Cr.P.C.

In the present case the accused were produced before the Executive Magistrate not because of sections 60, 61, 167 or 173 of the Cr.P.C. A police report had been filed stating that there was no evidence against them and they ought to be released.
The language of section 169 of the Cr.P.C. (ibid) is absolutely clear. The order of release had to be passed in this case only by a Magistrate empowered to take cognizance of that offence on the police report. Since the offence fell under section 364 of the P.P.C. in this .case, therefore, the Executive Magistrate clearly had no jurisdiction. However, strangely enough he assumed jurisdiction illegally.
However, since an Executive Magistrate has violated the law and had taken jurisdiction in a matter which fell outside his jurisdiction and about which there were no doubts, his order which is impugned is illegal and of no legal effect and is being set aside with directions to the police to act afresh in accordance with law.
However, as the Executive Magistrate had violated the law, he should be warned of the legal consequences for any such act in the future. Copy of this ,order be immediately sent to the learned Sessions Judge, Muzaffargarh with direction that he may deliver the copy of the order to the Executive Magistrate either personally or through the District Magistrate and the Executive Magistrate should note down in the presence of the Sessions Judge or the District Magistrate the observations of this Court for observance in the future.
A compliance report will. be sent by the learned Sessions Judge or the learned District Magistrate to the Deputy Registrar (Judl.) of this Court by the 1st of June, 2000.

H.B.T./G-21/L Order accordingly.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1381 #

2000 P Cr. L J 1423

[Lahore]

Before Mian Nazir Akhtar, J

MUHAMMAD ABBAS and others‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.49 of 1994, heard on 22nd November, 1999

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/324/148/149‑‑‑Appreciation of evidence‑‑‑Self‑defence; plea of‑‑Validity‑‑‑Prosecution had completely failed to prove motive as stated in F.I.R. as whatever was deposed by prosecution witness about alleged incident forming motive, was merely hearsay‑‑‑Prosecution had failed to offer any explanation regarding injuries sustained by accused, his brother and mother‑‑‑Prosecution having suppressed injuries sustained by three persons. on the side of accused party, it. could be presumed that complainant party including deceased had launched attack on accused party posing Serious threat to their lives and accused party had acted in self‑defence‑‑‑Trial Court, in circumstances, was not justified to reject plea of self‑defence raised by accused‑‑‑Three co‑accused having been acquitted on same evidence, accused persons could not be convicted without strong independent corroboration which was lacking in the case against them‑‑‑Recoveries of blood‑stained clothes of deceased and prosecution witness, blood‑stained earth from spot or .12 bore gun from accused, could not advance prosecution case, fate of which actually hung upon determination of question as to which party had committed aggression‑‑‑Plea bf self‑defence raised by accused being reasonably possible and prosecution having failed to prove case against accused, conviction and sentence of accused were set aside and they were acquitted of charge against them.

Ghulam murtaza and another v. The State 1993 PCr.LJ 1646 and Muhammad Arif and another v. The State 1994 PCr.LJ 2418 ref. .

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/324/148/149‑‑‑Burden of proof‑‑‑Benefit of doubt‑‑‑Burden to prove its case beyond a reasonable doubt always remained on prosecution and weakness of defence could not prove prosecution case‑‑‑Where there was reasonable possibility of defence plea being true, benefit of doubt must go to accused.

Rehman and others v. The State PLD 1968 Lah. 464; Wali Muhammad v. The State 1969 PCr.LJ 1185; Din Muhammad v. The State 1969 PCr.LJ 1527 and Saeed Ahmad and another v. The State PLD 1972

‑‑‑‑ Burden of proof‑‑‑Burden to prove its case beyond reasonable doubt always remained on prosecution and weakness of defence could not prove prosecution case ‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 118.

(d) Criminal trial--

‑‑‑‑Benefit of doubt‑‑‑Where there was reasonable possibility of defence plea being true benefit of doubt must go to accused.

Sardar Muhammad Akram for Appellants.

A.H. Masood for the State.

Dates of hearing: 9th December, 1998; 11th January, 15th February and 22nd November, 1999.

JUDGMENT

The appellant were convicted for an offence under sections 148/149/302 and 324 of the P.P.C. by the trial Court vide judgment, dated 23‑1‑1994. They were sentenced as under:‑‑

Muhammad Abbas Imprisonment for life under section 302‑B of the 148/149/302 and 324 of the P.P.C. be trial Court vide judgment dated 23-1-1994. They were sentenced as under:--

| | | | --- | --- | | Muhammad Abbas (appellant No. l) Muhammad Yousaf (appellant No.2) | Impisonment for life under section 302-B of the P.P.C and to pay compensation amounting to Rs.30,000 to the legal heirs of Idrees, ,deceased under section 544‑A of the Ct.P.C.. R.I. for 5 years under section 337‑D of the P.P.C., Arsh to the extent of 1/3rd of Diyat under section 337‑E(i) of the P.P.C., R.I. for one year (Daman) as a Tazir. Till the amount of Arsh is not paid, he shall be kept in jail and be dealt with in the same manner as if sentenced to simple imprisonment until the amount of Arsh is paid in full. The amount of Arsh shall be payable to Muhammad Aslam. The amount of Daman shall be paid to Muhammad Asghar. |

During the pendency of the appeal, Muhammad Yousaf, appellant No.~ passed away. The learned counsel for the appellants submits that he will press the appeal on behalf of Muham ad Yousaf as well because his legal heirs desire that blot of conviction be removed from the name of their deceased predecessor.

The occurrence had taken place on 7‑10‑1991 at about 6‑30 p.m. in the main Bazar Kot Abdul Malik in which Muhammad Idrees was killed and Muhammad Aslam P.W.9, Muhammad Asghar (not produced) were injured. The F.I.R. (Exh.P.K.) was lodged by Muhammad Ali P.W.7:: The complainant stated that his brother Muhammad Idrees was married to Mst. Zubaida Bibi. Muhammad Abbas was married to Mst. Fazeelat Bibi alias Rani real. sister of Mst. Zubaida. Mst. Fazeelat was not pulling on well with her husband and used to live in the house of her parents often. Idrees forbade Muhammad Abbas about his frequent quarrels with his wife whereupon they exchanged abuses and had an altercation. On 7‑10‑1991 at about 6‑30 p.m., the complainant alongwith Idrees, deceased, Muhammad Akbar son of Ali Muhammad, Muhammad Aslam son of Noor Muhammad and Muhammad Asghar son of Muhammad Aslam were passing through the main Bazar in order to go to the house of Noor Muhammad. When they reached the house of Muhammad Din son of Ranjha the accused persons launched an attack on them. Muhammad Abbas appellant No. l was armed with a .12 bore gun, Muhammad Yousaf; deceased, with a carbine, Muhammad Aslam with a hatchet, Allah Ditta alias Mana and Muhammad Mushtaq with Sota: Allah Ditta and Mushtaq raised a Lalkara that no one should be allowed to escape. Abbas fired the first shot with his gun causing injuries on the right thigh of Idrees deceased who fell down on the ground. Aslam inflicted ,,a hatchet blow on the forehead of the deceased. Yousaf, deceased fired a shot with his carbine causing injuries on the front side of right shoulder of Muhammad Aslam. He fired the second shot causing injuries on the right shoulder of Muhammad Asghar (not produced). The complainant further stated in the F.I.R. that in self‑defence they caused minor injuries to the accused persons. The F.I.R. was' recorded by Ghulam Hussain Inspector P.W.12. The investigation of the case was initially conducted by Ghulam Hussain, Inspector P.W.12 (mentioned as P.W.13 .in the judgment). He prepared the injury statement of Idrees, deceased (Exh.P.C.), the inquest report Exh.P.D. and handed over the dead body of Idrees to Muhammad Ashraf and Abdul Khaliq for taking it to the mortuary. He also secured blood‑stained earth from the place of occurrence vide recovery memo. Exh.P.L., recovered two empty cartridges P.1‑2 vide recovery memo. Exh.P.M., prepared site plan Exh.P.N. Abdul Khaliq P.W.1 produced last‑worn clothes of the deceased shirt P.1, Chaddar P.2, Salooka P.3 which were taken into possession vide recovery memo. Exh.P.A. He arrested four accused persons namely Muhammad Abbas, Muhammad Yousaf, Aslam and Mushtaq. After his transfer, the. investigation was entrusted to Muhammad Ibrahim, S.‑I. P.W.13 (mentioned as P.W.14 in the judgment). He recorded the statements of Aslam and Asghar in the Mayo Hospital, Lahore. Aslam produced before him his Kurta P.4, Chaddar P.5, Salooka P.6 and Bunyan P.7 which were recovered vide memo. Exh.P.E. He also arrested Allah Ditta accused on 31‑10‑1991. After him, further investigation was conducted by Zulfiqar Ali, Inspector P.W.15 (mentioned as P.W.16 in the judgment). He recovered gun P.8 and license P.9 on 10‑11‑1991, from the house of Muhammad Abbas, appellant No.1 through recovery memo. Exh.P.F. He recovered a hatchet P.10 at the instance of Muhammad Aslam accused through recovery memo. Exh.P.G. He also recovered Sota P.11 at the instance of Muhammad ,Mushtaq from his house through recovery memo. Exh.P.H. He prepared the site plan of the places of recovery. After completing the investigation he submitted the challan against Muhammad Abbas, Muhammad Yousaf, deceased, Muhammad Aslam and Muhammad Mushtaq. Allah Ditta co-accused was got discharged but was summoned by the trial Court.
At the trial the prosecution produced 16 witnesses including three eye‑witnesses named P.W.7 Muhammad Ali, P.W.8 Akbar Ali and P.W.9 Muhammad Aslam. Muhammad Asghar and Akram were given up as being unnecessary. P.W.1 Abdul Khaliq was given sealed parcel containing bloodstained earth which was delivered by him in the office of Chemical Examiner, Lahore on 17‑10‑1991. He had taken the dead body of the deceased for post‑mortem examination on 7‑10‑1991. After post‑mortem examination the doctor gave him last‑worn clothes of the deceased (shirt P.1, Chaddar P.2, Salooka P.3 alongwith a sealed phial) which were produced by him before the Investigating Officer, who secured the same vide recovery memo. Exh.P.A. P.W.2 Dr. Shaukat Hayat performed post‑mortem examination on the dead body of Muhammad Idrees on 8‑10‑1991 at 11‑30 a.m. and found the following injuries on his body:‑‑

(1) A lacerated wound 4 c.m. x 1 c.m. x bone deep on the right side of forehead, mid part.

(2) A contusion 3 c.m. x 2 c.m. on the left side of forehead, lower part just on the eyebrow.

(3) A contusion 3 c.m. x 1.5 c.m. on the top of right shoulder.

(4) A contusion 1 c.m. x 0.5 c.m. on the front and outer aspect of right elbow.

(5) An abrasion 1 c. m. x 1 c. m. on the back of right elbow joint.

(6) Multiple abrasions on the back of left elbow joint covering area 8 c.m. x 4 c.m.

(7) Contusion 1 c.m. x 0.5 c.m. on the left back of abdomen lower part. .

(8) Lacerated wound 4 c.m. x 2 c.m. on the partner aspect of right hand and wrist joint.

(9) Crushed lacerated wound with fire‑arm 15 c.m. x i c.m. bone fracture on the front of right thigh lower part.

(10) Contusion 1 c.m. x 1 c.m. on the outer aspect of left knee."

He opined that the death had occurred due to severe shock, hemorrhage and cardio respiratory failure; that all injuries collectively and injury No.9 individually was sufficient to cause death; that probable time between injuries and death was a few hours and between death and post‑mortem, 24 hours. P.W.3 Muhammad Ashraf, Moharrir was handed over a sealed parcel containing blood‑stained earth on 7‑10‑1991 which was kept by him in the Malkhana and then delivered to P.W.1 on 14‑10‑1991 intact. P.W.4 Muhammad Hanif is a recovery witness in respect of last‑worn clothes of Muhammad Aslam P.W.9. He also witnessed recovery of .12 bore gun P.8 with its licence P.9 from the residential house of Muhammad Abbas,. appellant No.1. He further witnessed the recoveries of hatchet P.10 from Muhammad Aslam, which was secured vide memo. Exh.P.G. P.W.5 Muhammad Siddiq is also a recovery witness regarding recovery of gun P.8, licence P.9 secured vide memo. Exh.P.F., and hatchet P.10 from Muhammad Aslam co‑accused. P.W.6 Muhammad Mansha was given summons Exh.P.J. for service of Dr. Aftab Younas but he was out of Pakistan and could not be served. He made his report Exh.P.J./1 on the summon. P.W.7 Muhammad Ali is the complainant and supported the prosecution story set up in the F.I.R. P.W.8 Akbar Ali and P.W.9 Muhammad Aslam, the injured persons were produced to support the eyewitness account given by the complainant. P:W.10. Syed Abdur Rahim Kazmi had prepared site plan Exh.P.N. and its duplicate copy Exh.P.N./1. P.W.11 Fateh Ali, Constable was given sealed parcel containing .12 bore gun connected with this case, who delivered it in the office of S:P. Technical\ Services, Lahore on 13‑11‑1991. P.W.12 Ghulam Hussain, Inspector and P.W.13 Muhammad Ibrahim had investigated the case. P.W.14 Salamat Ali, A.S.‑I. was given a sealed parcel containing .12 bore gun connected with this case which was kept intact in the Malkhana and handed over to Fateh Muhammad Constable on 13‑11‑1991. P.W.15 Zulfiqar Ali, Inspector had completed the investigation and submitted challan against the accused persons. P.W.16 Muhammad Hussain, record‑keeper had produced the original record of M.L.C. No.2621 of 1991, dated 7‑10‑1991, relating to Muhammad Aslam and Asghar. He stated that Dr. Aftab Younus who had gone out of Pakistan had conducted the medical examination. He identified the handwriting of the doctor on Exh.P.O. and P.O./1. On 15‑11‑1991 after tendering in evidence report of the Chemical Examiner, Exh.P.P., report of Serologist Exh.P.Q. and Report of S.P. Technical Services Exh.P.R., the prosecution closed its evidence.

When examined under section 342. of the Cr.P.C. Muhammad Abbas, appellant No.1 denied the charge and stated that the complainant party had committed aggression, caused injuries to his mother Mst. Murad Bibi and brother Yousaf. He further stated that his brother Muhammad Aslam was injured in the occurrence. Therefore, he (appellant No. l) fired in self‑defence and defence of his near relatives. Muhammad Yousaf, deceased (appellant No.2) had also made a statement under section 342 of the Cr.P.C similar to that of Muhammad Abbas, appellant No. l.
The accused persons produced three witnesses in their defence. D.W.1 Sajjad Hussain produced the original record relating to M.L.C. Nos.2518, 2520 and 2521 of 1991 with regard to Muhammad Yousaf son of Khushi Muhammad, Muhammad Aslam son of Khushi Muhammad and Mst. Murad Bibi. D.W.2 ‑is Dr. Abdul Bari who had examined Muhammad Yousaf and found the following injuries on his person:‑‑

(1) Lacerated wound 4.7 c.m, x .7 c.m. x bone deep on right side of forehead.

(2) Lacerated wound 5 c.m. x 1 c.m. x bone deep on top of head right side.

(3) Lacerated wound 5 c.m. x .7 c.m. x bone deep on top of head right side 1.5 c.m. above injury No.2 with contused swelling 9 c.m. x 7 c.m. around injuries Nos.2 and 3.

(4) Lacerated wound 5 c.m. x 1 c.m. x bone deep on top of head right side 2 c .1m. above injury No.3.

(5) Contusion 6 c.m. x 5 c.m. on back of chest mid part in mid line.

(6) Contusion 13 c.m. x 2 c.m lumber region.

(7) Contusion 9 c. in. x 2 c. m. on right buttock."

On the same day he had examined Muhammad Aslam son of Khushi Muhammad and found the following injuries on his person:‑‑

(1) Lacerated wound 4 c.m. x .7 c.m. x bone deep on top of head right side.

(2) Lacerated wound 3 c:m. x .7 c.m. x bone deep shaped on inner side of left eye‑brow.

(3) Lacerated wound 1 c.m. x .2 c.m. x bone deep on bridge of nose with contused swelling 3 c.m. x 2 c.m. of nose.

(4) Contused swelling 7 :..m. x 7 c.m. on front of right chest upper part.

(5) Contusion 9 c.m. x 8 c.m. on upper part of left shoulder.

(6) Contusion 11 c.m. x 3 c.m. oil back of left fore‑arm mid part.

(7) Contusion 9 c. in. x 2 c. m. on back of chest mid part."

He had examined Mst. Murad Bibi and found the following injuries on her body:‑‑

(1) Lacerated wound 5 c.m. x 1 c.m. bone deep on top of head left side.

(2) Contused swelling 9 c.m: x 5 c.m. on back of right hand.

(3) Lacerated wound 1 c.m. ‑x .3 c.m. x bone deep on top of index finger of left hand.

(4) Contusion 6 c.m. 3 c.m. on outer side of right upper arm.

D.W.3 Dr. Tahir Bashir produced X‑Ray reports DD/2 and DD/3. His report is Exh.D.W.3/1. Further, he produced X‑Ray reports Exh.D.W.3/2 of Muhammad Aslam and D.W.3/3 in respect of Muhammad Yousaf.

The appellants' learned counsel urged that the prosecution had completely failed to prove the motive stated in the F.I.R.; that the prosecution has suppressed injuries sustained by Muhammad Aslam, his brother Yousaf and mother Mst. Murad Bibi; that the appellant had acted in his own defence as well as the defence of his near relatives; that the plea of self‑defence was rejected by the trial Court on whimsical and untenable grounds; that on the same evidence the trial Court had acquitted Allah Ditta, Muhammad Aslam and Mushtaq co‑accused; that the prosecution evidence could not be accepted qua the appellants without strong and independent corroboration which is lacking in the case; that Aslam accused had allegedly caused a hatchet injury on the forehead of Idrees deceased but no such injury is found on his body; that subsequently, the complainant party had murdered Yousaf deceased appellant No.2, Mst. Murad Bibi and Allah Ditta whereupon two cases were registered against the complainant party vide F. I.Rs. Nos. 131 and 132 of 1995. In support of his contentions, he relied on the following judgments:‑‑

(i) Ghulam Murtaza and another v. The State 1993 PCr.L1 1646.

(ii) Muhammad Arif and another v. The State 1994 PCr.L12418.

On the other hand, the learned State Counsel submitted that the F.I.R. was promptly lodged within one hour of the occurrence; that P.W.9 is himself injured and his presence at the time of occurrence cannot be doubted; that the case was proved against the appellants beyond any reasonable doubt.
There is considerable weight in the arguments raised by the appellants' learned counsel. The motive stated in the F.I.R. is that Idrees, deceased had forbidden Muhammad Abbas from quarrelling with his wife Mst. Fazeelat Bibi whereupon they exchanged abuses and had an altercation 3/4 days prior to the occurrence. The alleged motive is sought to be proved by the solitary statement of P.W.7, the complainant. He clearly stated, "I was not available at that time when Idrees had a dispute with Muhammad Abbas. I do not know those persons who collected and separated Idrees and Abbas". Therefore, whatever stated by P.W.7 about the alleged incident forming motive was merely hearsay. The prosecution did not produce any person who had witnessed the altercation between Idrees, deceased and Muhammad Abbas, appellant No. 1. Therefore, the prosecution had failed to prove the motive set up in the F.LR.
In the F.I.R., the complainant had generally stated that the complainant party had caused injuries to the accused persons in self‑defence. However, at the trial, the complainant as well as the other eye‑witnesses changed their versions. Muhammad Ali, P.W.7 the complainant, Akbar Ali, P.W.8 and Muhammad Aslam P.W.9 stated that they neither caused injuries to the accused persons nor stated so before the police. Therefore, it is est,4blished that the prosecution did not offer any explanation regarding the injuries sustained by Muhammad Yousaf, appellant, his brother Muhammad Aslam and mother Mst. Murad Bibi.
Muhammad Aslam had received seven injuries shown in his medicolegal report Exh.D.C. His nasal bone was fractured. When he was being injured, he raised hue and cry whereupon his mother carne out and was attacked by the complainant party. She received four injures shown in her medico‑legal report Exh.D.D. Muhammad Yousaf, appellant also came out with the intention to rescue his brother and mother and was attacked and injured by the complainant party. He received seven injuries shown in his medico‑legal report Exh.D.B. At this juncture, appellant No.1 apprehended real danger to his life as well as lives of his mother and brother. He brought his licensed gun from the house and fired one shot at the complainant party. In all probability the shot fired by appellant No. l hit Idrees, deceased who later succumbed to his injuries. It is difficult to accept the appellants version that Ashraf, brother of Mst. Fazeelat Bibi had fired a gun shot which hit the deceased as well as Muhammad Aslam P.W. The appellants did not produce any witness in support of their plea that the shot fired by Ashraf had caused injuries to Idrees deceased as well as Aslam, P.W. On the other hand, the prosecution has produced three eye‑witnesses P.W.7 to P.W.9 who have stated that the shot fired by Abbas appellant No.1 had injured the deceased appellant. He fired one gun shot and did not use more' force than was apparently necessary in the circumstances of the case. Since the prosecution had failed to explain the injuries sustained by three persons on the side of the accused party, it can be presumed that the complainant party had first committed aggression and thereafter, Abbas appellant No. l retaliated and caused injuries to the deceased to protect the life of his mother and brother Muhammad Yousaf, appellant. The question arises whether by firing a shot at the deceased and causing injuries to him as well as Muhammad Aslam P.W., Abbas appellant No. l‑had committed any offence in the circumstances of the case? Since the prosecution had suppressed injuries sustained by three persons on the side of the accused party, it can be presumed that the complainant party including the deceased had launched an attack on the accused persons posing serious threat to their lives. In this connection, the statement of Abbas appellant No.1 under section 342 of the Cr.P.C. assumes importance. In reply to question No. 14, he stated:‑‑

"On the day of occurrence, I alongwith my brothers Yousaf and Aslam were available in our house. I alongwith my brother Muhammad Aslam came out (of) house with a motor‑cycle and were about to leave, near my house Idrees deceased, Aslam son of Noor Muhammad, Ashraf son of Noor Muhammad were available in ambush condition and they were also, armed. Thereafter, Muhammad Idrees and others assaulted us. At that time Yousaf my brother was available in the house. Muhammad Aslam was subjected to beating and he fell down on the ground. After hearing noise my mother Murad Bibi came out (of) house. She was also subjected to beating by Muhammad Idrees and others. Muhammad Idrees and others caused injuries to Muhammad Aslam and my mother at vital parts. On account of beating hand of my mother was fractured at different places, while nasal bone of Muhammad Aslam was fractured. At the same time Muhammad Yousaf my brother also came out (of) house when I alongwith other were subject to beating by Idrees and others. Meanwhile, I went inside my house, brought my licensed gun and fired in self‑defence of my person and that of my mother and brother. Besides me nobody else was armed amongst us. Meanwhile, Arif brother of the deceased came to the place of occurrence duly armed with a gun and he started opening fire. His fire hit Muhammad Idrees and Muhammad Aslam. Complainant party was aggressor. I did not commit any offence. Rather I acted in self‑defence to save my life and to save the life of my close relatives. Allah Ditta my brother was not available in Hussain Cane Factory at that time. Likewise my brother Mushtaq who was aged 13 years at that time and did not participate in the occurrence. My brothers Muhammad Yousaf and Muhammad Aslam did cause injuries to any person. Allah Ditta my brother was found innocent and he was discharged. During the course of investigation our defence version was found correct. Our injuries were intentionally suppressed by prosecution. We produced medical certificate before Investigating Officer but he refused to accept the same. "

The statement made by Abbas' appellant.No.1 gets support from the M.L.R. Muhammad Yousaf, deceased appellant No.2, his brother Muhammad Aslam and mother Mst. Murad Bibi. Therefore, in the circumstances of the case Abbas appellant No. l had complete right of defence of his real brother Muhammad Yousaf and mother Mst. 'Murad Bibi.

The trial Court has wrongly held that it was a case of free fight in which each person was liable for his individual act. The facts and circumstances of the case fairly show that the complainant party had a serious grouse against the accused persons, subjected them to attack and succeeded in causing substantial injuries to Muhammad Yousaf, appellant No.2, his brother Muhammad Aslam and mother Mist. Murad Bibi. The vengeance of the complainant party is demonstrated by the fact that during the pendency of the present appeal, it murdered Muhammad Yousaf, appellant No.2 and his mother Mst. Murad Bibi as well as another brother of Muhammad Yousaf, appellant No.2. Allah Ditta was an accused in the present case but was acquitted ;by the trial Court. He was also targeted and done to death by the complainant party during the pendency of the appeal. I am told that the case registered vide F.I.R. No.131 of 1991 at Police Station Shahdara, Lahore regarding murder of Muhammad Yousaf appellant No.2 is still pending while the other case registered F.I.R. No‑172 of 1995 at Police Station Factory Area, Lahore regarding murder of Mst. Murad Bibi and Allah Ditta had been decided. In the latter case two accused persons named Nazir Hussain, brother of Muhammad Ali, complainant and his son Liaqat were found to be guilty and sentenced to life imprisonment under section 302(b) of the P.P.C.
There is . also weight in the argument raised by the appellant's learned counsel that on the same evidence three co‑accused named Allah Ditta, Aslam and Muhammad Mushtaq were acquitted and that the others could not be convicted without strong independent corroboration which is lacking in the. case. The eye‑witnesses did not tell the truth about the acquitted co‑accused. Moreover, they suppressed material facts regarding the injuries caused to three persons from the accused side. Therefore, they could not be believed qua the appellants without strong corroboration. The recoveries of blood‑stained clothes of the deceased and Muhammad Aslam, P.W., blood-stained earth from the spot or .12 bore gun P.8 from the appellant cannot advance the prosecution case the fate of which actually hinges upon determination of the question as to which party had committed aggression. Once it is held that the. eye‑witnesses had suppressed the material facts and were not believable qua the acquitted co‑accused and that Muhammad Abbas appellant No. l had fired shots to save his own life as well as lives of his near relatives, then the abovementioned recoveries cannot be used as corroborative material to establish the offence against the appellants. It is unfortunate that Muhammad Yousaf, appellant No.2 was done to death during the pendency of the appeal. Similarly another acquitted co‑accused Allah Rakha and Mst. Murad Bibi, mother of the appellants were also murdered. The appellants have blamed the complainant party for the said murders. The case about murder of Muhammad Yousaf is pending but in the other case Nazir Hussain, real brother and Liaqat son of the complainant had been found to be guilty under section 302(b) of the P.P.C. The version put forward by the appellants appears to be reasonably possible. In the case of Ghulam Murtaza and another a Division Bench of this Court had held that an accused person is the judge of his own danger and law permits him to repel the attack even by taking the life of the assailant and that the accused version regarding right of self‑defence is to be accepted if the same appears to be reasonably possibly in the circumstances of a case. In the case of Muhammad Arif it was held that where the origin of fight was not clear and where there was every probability of the deceased having opened the attack, the single shot fired by the accused which hit the deceased could be justified in self-defence in view of the provisions of section 100 of the P.P.C. It is settled law that burden to prove its case beyond a reasonable doubt always remains on the prosecution and weakness of the defence cannot prove the prosecution case as held in the following judgments: ‑‑

(i) Rehman and others v. The State PLD 1968 Lah. 464.

(ii) Wali Muhammad v. The State 1969 PCr.LJ 1185.

(iii) Din Muhammad v. The State 1969 PCr.LJ 1527.

(iv) Saeed Ahmad and another v. The State PLD 1972 Lah. 360.

Where there is reasonable possibility of the defence plea being true, then benefit of doubt must go to the accused as held in the case of Muhammad Hussain Qureshi v. The Crown PLD 1954 Lah. 127. In the present case as discussed above, the plea of self‑defence raised by the appellants is reasonably possible.

Therefore, the appeal is accepted and the appellants are acquitted of the charges against them. Abbas Ali, appellant No.1 was released on bail vide order, dated 3‑10‑1996. His bail bonds shall stand discharged.

H.B.T./M‑163/L Appeal accepted.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1411 #

2000 P Cr. L J 1439

[Lahore]

Before Dr. Munir Ahmad Mughal, J

DILDAR SHAH‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 128/B of 2000, decided on 12th April, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑.‑‑Offence of Zina (Enforcement of Hudood) .Ordinance (VII of 1979), S.10/11‑‑‑Penal Code (XLV of 1860), S.420/468/471‑‑‑Bail, grant of‑‑‑Accused was not named in the F.I.R. and his signature or thumb impression did not appear on alleged forged Nikahnama‑‑‑Delay of fourteen days had occurred in lodging F. I. R. ‑‑‑Allegation of Zina with abductee by brother of accused with whom plea of Nikah had been taken previous enmity between the parties, truth and falsehood of which was to be seen at the trial had made the case against accused that of further enquiry‑‑‑Accused was granted bail in circumstances.

Rai Muhammad Tufail Kharal for‑Petitioner.

Ch. Ali Muhammad for the Complainant.

ORDER

The learned Special Judge, Anti‑Terrorism Court has not disposed of the application for sending the challan to his Court. Similarly, the learned Additional Sessions Judge to whom the challan has been submitted in this case has not sent the case to the Special Judge, Anti‑Terrorism Court, hence, at present, the case is with the learned Additional Sessions Judge and without going into this controversy any further as the matter is of urgent nature relating to the bail application, it is heard by me as a single Bench. Let the arguments be started by the learned counsel for the petitioner. The learned counsel for the petitioner seeks post‑arrest bail of the petitioner who is involved in :a case F.I.R. No.204 of 1998, dated 19‑6‑1998, registered at Police Station Mangtana Wala, Tehsil Nankana, District Sheikhupura for an Offence of Zina (Enforcement of Hudood) Ordinance, 1979 read with sections 420, 468 and 471, P.P.C. on the allegations of complainant Farooq Ahmad that he alongwith his parents, sister and brothers had gone to Lahore and had given his personal house on rent to Hussain son of Chan caste Syed. The house remained on rent for about three years. About 2‑1/2 (sic) before he got the house vacated while Hussain remained as a tenant in the same Mohallah. Due to acquaintance the said Hussain became on visiting terms with the complainant but when he doubted his conduct, forbade him to visit his house. On 5‑6‑1998 the complainant went for labour early in the morning and came back in the evening when his parents informed him that at about 10‑30 O'Clock Abbas son of Malla caste Chaddhar a co‑villager who is a fast friend of Hussain had come and went away after sometime. Thereafter, passing of few minutes Mst. Zubaida aged 15/16 years the sister of the complainant went out of the house and did not come back till the time .of lodging of the F.I.R. The complainant searched for her in the village and came to know that Muhammad Mansha son of Inayat caste Muslim Sheikh, Shaukat Ali son of Allah Ditta caste Khokhar co‑villagers met him who informed that Mst. Zubaida and Hussain son of Chan caste Syed and Abbas son of Malla co‑villagers were seen waiting for a bus at the bus stop Narri Warihan enroute to Bhai Pheru. The complainant alongwith respectable of the locality contacted the relatives and parents of them who promised to return of Mst,. Zubaida Bibi but he was kept on lame excuse and ultimately flatly refused saying that whatever he can do he may do and they will not return Mst. Zubaida Bibi and that Hussain and Abbas had enticed away and abducted Mst.. Zubaida and that he is a complainant and prays for legal action.

Earlier the bail application was moved before the learned Additional Sessions Judge, Sheikhupura, which was dismissed for the reasons that the bail was rejected by the Honourable Lahore high Court vide order,, dated 15‑8‑1998 on merit and even by the learned Additional Sessions Judge himself on 23‑11‑1999 and that there was no ground rather no proprietary to consider this the second said bail application.
The bail is now pressed on the grounds that the case is false, based on mala fide, grudge and grouse and that the petitioner's brother has duly contracted a valid marriage on 1‑6‑1998 in presence of which no offence of abduction or Zina was made out at all and that the petitioner is not named in the FIA. and the involvement is mala fide and that the co‑accused who is the Nikah Registrar, has been allowed bail and that the petitioner is law abiding person and is not involved in any other case previously. The learned counsel for the petitioner submitted that the bail of the co‑accused has been dismissed by the High Court and that the case of the petitioner is distinguishable from his case on the grounds that the petitioner is not even the marginal witness of the Nikah Nama while he was. Secondly, the petitioner is not named in the F.I.R. while Abbas was named in the F. I. R.
On the other hand, the learned counsel for the complainant frankly conceded that the name of the petitioner is not in the F.I.R. nor there is signature of the petitioner on the Nikah Nama. He further submitted that the name of the petitioner came to the knowledge of the police when statement of the abductee was recorded under section 161, Cr.P.C. in which she stated that Dildar and others had committed Zina‑bil‑Jabr with her arid that the case was hit by the prohibitory clause of section 497, Cr.P.C. having fallen under section 10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 providing death penalty:
I have given due consideration to the arguments on both sides and perused the record brought by Mr. Mubarik Ali A.S. ‑1.
The tentative assessment shows that admittedly the petitioner is not named in the F.I.R. His signature or thumb‑impression are also not present on the alleged forged Nikah Nama. There is a delay of fourteen days in lodging the F.I.R. The question of Zina with the abductee by a brother of petitioner with whom there is also a plea of Nikah and previous enmity having all come during investigation, the truth and falsehood of which is to be seen at the trial, make this case that 'of further probe as such to keep the petitioner in jail without .trial would mean conviction before trial. In this view of the matter, bail is granted subject to furnishing bail bond in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the trial Court.

H.B.T./D‑5/L Bail granted,

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1423 #

2000 P Cr. L J 1459

[Lahore]

Before Muhammad Asif Jan, J

MUHAMMAD ASIF‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1790 of 2000, decided on 19th April, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.2‑A, 7, 10 & 11‑‑‑Bail, grant of‑‑‑Accused at time of commission of offence was thirteen and half to fourteen and a half years old‑‑‑Accused was entitled to statutory benefit of first proviso to subsection (1) of S.497 Cr.P.C.‑‑‑Mother of victim girl alongwith her son had sworn affidavit whereby they had exonerated the accused‑‑‑Reasonable grounds within meaning of S.497(1), Cr.P.C. prima facie, did not exist to believe that accused was guilty of offence punishable with death or imprisonment for life or imprisonment for ten years‑‑‑Case against accused being that of further inquiry within meaning of S.497(2), Cr.P.C. accused was entitled to grant of bail.

Rana Muhammad Arif for Petitioner.

Latif Sheikh for the State.

ORDER

Muhammad Asif petitioner aged about thirteen and half years was arrested on the 9th of October, 1999, in pursuance of a case registered vide F.I.R. 307 of 1999, dated 28th of September, 1999, under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance of 1979, at Police Station Sherakot, District Lahore regarding an occurrence which took place in Ghausia Auto Workshop situated at a distance of one and half kilometer from the police station where the F.I.R. was lodged on the same day at 2‑45 p.m. by Mst. Ruqqia Bibi mother of victim Mst. Asma Bibi aged about 13 years.

Learned counsel for the petitioner submits that the petitioner is admittedly thirteen and half years and is, therefore, entitled to the benefit of the 1st proviso to section 497, Cr.P.C.; that the petitioner is not an adult as defined in section 2‑A of Ordinance VII of 1979 and, therefore, cannot be convicted under sections 10 and 11 of the said Ordinance and that his conviction could only be recorded under section 7 of the Ordinance wherein the maximum punishment is five years which does not fall within the prohibition contained in subsection (1) of section 497, Cr.P.C. and finally that the complainant, the prosecutrix as also the eye‑witnesses have all exonerated the petitioner by swearing affidavits to that effect.

According to the X‑Ray for determining the age of the petitioner placed on the record as Annexure "D" the petitioner is thirteen and half to fourteen and half years approximately. He is, therefore, clearly entitled to the statutory benefit of 1st proviso to subsection (1) of section 497, Cr.P.C. which lays down that the Court may direct that any person under the age of 16 years may be released on bail even though there are reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years.

The word "adult" has been defined in clause (a) of section 2 of Ordinance No.VII of 1979 as follows:‑‑

" 'Adult' means a person who has attained, being a male, the age of eighteen years "

Section 7 of Ordinance No.VII of 1979 provides the punishment of Zina or Zina‑bil‑Jabr where convict is not an adult and lays down that the maximum punishment for such a person may extend to five years, or with fine or with both. Therefore, the contention of the learned counsel for the petitioner is correct to the extent that even if a conviction is recorded the maximum sentence could be awarded to ‑the petitioner is five years which does not fall within the prohibition contained in subsection (1) of section 497, Cr.P.C.

Be that as it may, the complainant Mst. Ruqqia Bibi who is mother of Mst. Asma Bibi alongwith her son Muhammad Imran have sworn affidavits exonerating Muhammad Asif petitioner with the result that reasonable grounds within the meaning to subsection (1) of section 497, Cr.P.C. to believe that the petitioner is guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years, prima facie do not exist any more. However, the case against the petitioner may be a matter of further inquiry within the meaning of subsection (2) of section 497, Cr.P.C. which entitles the petitioner to the grant of bail.

Resultantly, this petition is accepted and the petitioner is granted bail provided he furnishes a bail bond in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of the trial Court.

H.B.T.M‑162/L Bail granted.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1439 #

2000 P Cr. L J 1477

[Lahore]

Before Muhammad Naseem Chaudhri, J

FAROOQ AHMAD‑‑‑Petitioner

versus

S.H.O., POLICE STATION KOTWALI, DISTRICT SIALKOT and

others‑‑‑Respondents

Writ Petition No.22898 of 1999, heard on 16th March. 2000.

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

‑‑‑‑S. 18‑‑‑Penal Code (XLV of 1860), S.216‑‑‑Criminal Procedure Code (V of 1898) Ss.47 & 48‑‑‑Constitution ' of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Police for the purpose of detection of commission of Zina by any person including an absconder could not enter the house of any person‑‑‑No permission had been obtained by the police in terms of Ss.47 & 48, Cr.P.C. for the search of the house and without the request of admittance it could not enter therein‑‑‑Mere mentioning of the entry on the basis of the arrest of a fugitive from law could not justify and grant jurisdiction to the Police Officer to enter the house of accused‑‑‑Allegation of concealment and harbor of a fugitive in the house was simply false and the other allegation against the accused of making an attempt of Zina by consent was also false ‑‑‑F.I.R. registered against the accused was quashed in circumstances.

Riaz v. S.H.O., Police Station City Jhang and 2 others PLD 1998 Lah. 35 ref.

Sh. Ehsan Ahmad for Petitioner. Ms. Roshan Ara, Asstt. A.‑G. for the State.

Date of hearing: 16th March, 2000.

JUDGMENT

This writ petition has been filed under Article 199 of the Constitution of Pakistan, 1973 for the quashment of F.I.R. No.350 registered on 28‑10‑1999 at Police Station Kotwali, Sialkot under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 216, Pakistan Penal Code.

Faqir Hussain, S.‑I. Police Station Kotwali, Sialkot received a secret information on 28‑10‑1999 while he was on Gasht of the area in the company of Muhammad Sarwar Constable and Javed Iqbal, Constable that one Mst. Irshad alias Shado carried on the business of providing females for prostitution in her house and that even the absconders of criminal cases visited her. He was imparted. the information by the informant that Baz Khan accused of Crime Case No.25 of 1999 registered under section 324, Pakistan Penal Code at Police Station Kotwali, Sialkot was in her house who could be arrested in case the immediate raid was effected. Faqir Hussain, S.‑I. reached the house of Mst. Irshad Begum alias Shado situated in Mohallah Muhammadpura, Sialkot in the company of his aforesaid subordinates. Baz Khan and Mst. Irshad Begum made good their escape. However, one male and one female were seen lying on a cot in compromising position preparing for Zina. They were apprehended who were none else than Farooq Ahmad petitioner‑accused as well as Mst. Shamim Akhtar co‑accused. Faqir Hussain, S.‑I. sent the complaint to the S.H.O. Police Station Kotwali, Sialkot where formal F.I.R. No.350, dated 28‑10‑1999 was registered at 8‑15 p.m.
Feeling aggrieved Farooq Ahmad petitioner has filed this petition for the quashment of the F.I.R. on the ground that the case was simply false and based on mala fides.
The comments have been received wherein the police has taken up the stand that the protection was given to the proclaimed offender by Mst. Irshad Begum and that Farooq Ahmad petitioner was found in compromising position with a female who were preparing to perform the sexual intercourse by consent.
The comments and report are treated as the written statement.
I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate‑General and gone through the record before me. The main contention of the learned counsel for the petitioner is that the petitioner was not present at the place of occurrence and that through falsehood the petitioner was involved. He added that the police has coined a device to enter the houses of others by taking up the stand about the arrest of some fugitive from law even though no incident had taken place. According to him it is simply against the human conduct that the female Mst. Irshad Begum made good her escape in the presence of the police contingent. He built the point that the police could not enter the house without permission. On the contrary the learned A.A.‑G. laid the emphasis that it is a case which revolves around factual aspect and the F.I.R. cannot be quashed as required and desired by the petitioner.
I would express that the reasoning adopted by the learned counsel for the petitioner has to prevail. The police has coined a device to enter the house of others by recording the F.I.Rs. to the effect that some fugitive from law was present in a house and to justify their entry the matter is processed with and generally one male and one female are apprehended, on the ground chat they were preparing to commit Zina by consent. It has been held that in Riaz v. S.H.O., Police Station City Jhang and 2 others PLD 1998 Lah. 35 that even a search warrant could not be issued for detection of commission of Zina. It means that for the purpose of detection of commission of Zina by any person including an absconder the police cannot enter the house of any person. No permission was obtained by the police in terms of sections 47 and 48 of the Code of Criminal Procedure for the search of the place. Without the request of admittance in the house the police could not enter the house of Mst. Irshad Begum. The mere mentioning of the entry on the basis of the arrest of a fugitive from law would not justify and grant the jurisdiction to the Police Officer to enter the house of Mst. Irshad Begum. My experience has made me to express that one or two fugitive from law are named on the First Information Report so that the police can exercise its jurisdiction in an autocratic manner to arrest the absconders and on the basis of their presence in a house unauthorised entry is made by the police which can well be termed to be a trespass according to the law of the land. It would be proper to express at this stage that section 216, Pakistan Penal Code has been added by the police which deals about the harbour and concealment of an absconder-accused in a house. The dictionary meaning of word "conceal" are "keep secret, to hide completely or carefully, act or state of hiding". The dictionary meaning of word "harbour" are "place of safety or refuge or shelter, asylum". It is simply surprising that in the presence of many Police Officers both Mst. Irshad Begum owner of the house and Baz Khan absconder succeeded in making good their escape. For how much time Baz Khan absconder was concealing or harbouring in the house of Mst. Irshad Begum is not mentioned. It seems that every thing has been taken in routine. Consequently, it can safely be held that the fact of concealment and harbour of a fugitive Baz Khan is simply false and also other fact of attempt of Zina by consent is false. I, therefore, hold that it is a fit case for quashment of F. I. R.
For what has been said above, I accept this writ petition and quash F.I.R. No.350, dated 28‑10‑1999 registered at Police Station Kotwali, District Sialkot and under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and under section 216, Pakistan Penal Code. No order as to costs.

N.H.Q./F‑7/L F. I. R. quashed.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1459 #

2000 P Cr. L J 1527

[Lahore]

Before Zafar Pasha Chaudhry, J

RIAZ AHMAD‑‑‑Appellant

versus

KHALID‑‑‑Respondent

Criminal Appeal No. 1056 of 1996, heard on 31st March, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 320‑‑‑Criminal Procedure Code (V of 1898), S.417(2‑A)‑‑‑Appeal against acquittal‑‑‑Case against accused was that he while driving tractor rashly and negligently, hit wife of complainant who was carrying meals for him and resultantly she died‑‑‑Tractor which hit the deceased was the same which had been recovered by police and was driven at the time of incident by accused‑‑‑Place of occurrence was not denied and manner with which the lady was hit was also not disputed‑‑‑Both eye‑witnesses belonged to the locality and their presence at place of occurrence would not be treated improbable‑‑‑Witnesses not only had seen occurrence, but they had also attested the recovery of tractor‑‑‑Witnesses had made their statements on oath and neither of them was inimically disposed towards accused nor they had any motive to falsely implicate him‑‑‑Testimony of such witnesses, thus, could not be discarded‑‑‑Details of rashness and negligence of accused had been furnished by an expert who after examining tractor had reported that steering of tractor was free and its lock was loose and if such things had been in proper order, accident could have been avoided‑‑‑Evidence on record having successfully brought home the guilt of accused beyond any doubt, he was rightly found liable to be punished under 5.320, P.P.C. by the Magistrate while the Appellate Court in acquitting accused had not assigned valid reasons for that and had extended benefit of doubt to accused on fictitious and superfluous considerations‑‑‑Appellate Court had found that Magistrate by not recording statement of prosecution witness himself, had violated provisions of S.355, Cr.P.C.‑‑‑Statements of prosecution witnesses which were recorded in presence of Magistrate were signed by the said Magistrate‑‑‑Mere fact that Magistrate omitted to record reasons for not writing statements himself, by itself would not invalidate prosecution evidence‑‑‑Judgment of acquittal passed by Appellate Court was set aside by High Court in circumstances.

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

‑‑‑=S. 355‑‑‑Non‑recording of statement under S.355, Cr.P.C. by the Magistrate himself and failure to given reasons for the same‑‑‑Effect‑‑‑Mere fact that Magistrate omitted to record reasons for not writing statements himself, by itself would not invalidate prosecution evidence.

Amjad Hussain Syed for Appellant.

Muhammad Ramzan Ch. for the State.

Date of hearing: 31st March, 2000.

JUDGMENT

Brief facts relevant for the disposal of this appeal are that on 26‑6‑1993 at about 7130 a.m. Mst.Safia wife of Riaz Ahmad appellant/complainant was carrying meals for the appellant in the fields when Khalid son of Bashir Ahmad respondent who was driving tractor No.8675/SLB rashly and negligently hit her who fell down and the wheel of the tractor ran over her. The respondent accused Khalid fled away from the 'place of incident. Mst. Safia subsequently, succumbed to the injuries received during the said accident. A case F.I.R. 471 of 1993 was registered on the statement of Riaz Ahmad appellant with Police Station Jaranwala under section 320, P.P.C.

The respondent Khalid was sent up to face trial in the Court of Ch. Muhammad Wakeel, Magistrate Section 30, Faisalabad who vide his judgment, dated 29‑1‑1996 convicted the accused/respondent under section 320, P.P.C. awarding one year's R.I. and also to pay Rs.1,25,000 as Diyat to the legal heirs of the deceased. That order was challenged by Khalid convict/respondent through appeal, whereas Riaz Ahmad the present appellant filed a criminal revision seeking enhancement of the sentence. Appellant's revision was dismissed but the appeal filed by the respondent was accepted and his conviction was set aside by Ch. Muhammad Hussain Maikan, learned Additional Sessions Judge Faisalabad vide his judgment, dated 6‑11‑1996. ‑
Aggrieved by the order of acquittal the instant appeal under section 417(2‑A), Cr.P.C. has been preferred. A notice was issued to the respondent. In response thereof, he has appeared alongwith his counsel. Arguments were addressed by both the parties in support of various contentions raised by them.
The prosecution in order to prove the case against the respondent 1 examined seven witnesses. Bashir Ahmed P.W.1 and Muhammad Sadiq P.W.2 furnished the ocular account of the occurrence. Both of them saw that Tractor in question was driven by respondent Khalid rashly and due to his negligence Mst. Safia was hit who thereafter fled away from the place of occurrence. The tractor in question was taken into possession in their presence. Riaz Ahmad complainant was examined as C. W.1 who is husband of Mst. Safia. He reiterated the prosecution version as already given by the two witnesses and as such supported the prosecution version. The eyewitnesses were at a distance of about 40 feet from the place of occurrence whereas the complainant witnessed the occurrence from a distance of twenty feet. P.W.3 Muhammad Hanif was a formal witness who identified the dead body of Mst. Safia at the time of her post‑mortem examination. Similarly, Ghulam Hussain P.W.4 is also a formal witness. P.W.5 Muhammad Rafiq is Foreman in Cooperative Farm Service Centre, Jaranwala who after examining the Tractor in question i.e. No.8676/SLB Ford‑3600 with which Mst. Safia was hit, submitted his report Exh.P.A. and found that the steering was free and brake was loose.
Investigation was conducted by Zafar Iqbal A.S.‑I. P.W.6 who took into‑ possession Tractor alongwith Trolly No.8676/SLB vide memo. Exh.P.D. and also arrested the respondent. After recording the statements of the P.Ws. he performed other usual formalities. He found the accused guilty and sent him up to face trial in the Court of learned Ilaqa Magistrate.
Dr. Muhammad Akram examined Mst. Safia and noted the following injuries on her person:‑‑

(1) An abrasion on whole of the abdomen so that the superficial skin hart peeled off.

(2) A lacerated wound 6 x 3 c.m. muscle deep on the left front of thigh upper part.

(3) A lacerated wound 4 x 2.5 c.m. muscle deep on the front of left thigh 1.5 c.m. above the injury No.2.

(4) A lacerated wound 1 x 5 c.m. on the bridge of nose, the bone underneath was fractured.

The deceased was reported to have been run over by a tractor and noted that abdomen had been compressed which led to the death of Mst. Safia and the injury was sufficient to cause death in ordinary course of nature.

After close of the prosecution case the statement of respondent accused was recorded on 10‑12‑1995. He pieaded not guilty and stated that he was involved on account of party faction and enmity. He, however, did not choose to appear as his own witness as envisaged under section 340(2), Cr.P.C. nor he produced any evidence in support of his defence.
As observed above, the learned trial Magistrate after assessing the aforesaid evidence found that the father of the accused‑respondent was owner of the tractor and same stood registered in his name. While refuting this aspect of the case the respondent pleaded that a false registration has been obtained in the name of his father in order to implicate him in the case. After appraising the prosecution evidence he found the case stood proved against the respondent and accordingly he convicted the appellant under section 320, P.P.C. and sentenced him as noted above.
On appeal filed by the respondent, the learned Additional Sessions Judge set aside the conviction by observing that both the eye‑witnesses were chance witnesses; that there was contradiction in between the version given by the complainant in the F.I.R. and the statement made in Court; that although the complainant as well as witnesses stated that accused was driving the tractor rashly and negligently but no detail has been furnished and that the witnesses appear to be tutored, as such, should not have been relied upon. The main ground assigned for acceptance of the appeal was that statements of P.W.1, P.W.2, P.W.3 and C.W.1 had not been written in the hand of the Magistrate although same had been attested by him by affixing his signatures; as such provision of section 355, Cr.P.C. has been violated, therefore, the sentence recorded on the strength of this evidence could not sustain, the same was accordingly set aside.
I have carefully gone through the prosecution evidence comprising of the aforesaid witnesses, the Court‑witnesses and other relevant material with the assistance of the learned counsel for the parties. In order to appreciate the evidence and to assess the case of both the parties certain admitted facts have to be kept in mind e.g. it is a fact that Mst. Safia was hit by a tractor, she received injuries and thereafter, she died on account of the receipt of the injuries. According to the doctor the death occurred due to compression of the abdomen which was sufficient to cause death in ordinary course of nature. These facts have not been disputed by the defence. The dispute has been raised firstly that the number of the tractor has been recorded erroneously in the F.I.R. It is submitted that actual number of the Tractor is 8676/SLB whereas in the complaint it is written 8675, therefore, according to the learned counsel it has not been proved by the prosecution that the tractor in question was in fact the tractor by which the deceased was run over. In support of his contention he has referred to the entry in the recovery memo. wherein figure (5) has been changed into figure (6). The remaining figures i.e. SLB and (867) are the same. The learned counsel in fact has tried to make a big capital of an insignificant inadvertence. It appears that while recording the number of the tractor as 8676, number 8675 was written. The mistake was subsequently, corrected and the correct number of the tractor has been given. The other letters and figures i.e. SLB etc. are exactly the same. Some time figure (6) if not written legibly may look like figure (,S) and an error as such crept in. The argument on the basis of it appears to be frivolous in the absence of any supporting circumstance. The tractor stands registered in the name of father of the respondent which has not been denied. The tractor was taken into possession there from the spot in presence of the witnesses. There remains no doubt that the tractor which hit Mst. Safia was the same which had been recovered by the police and was driven at the time of incident by respondent.
The learned Additional Sessions Judge while appraising the evidence of the witnesses and the complainant discredited their testimony on the ground that the complainant as per his version in the complaint stated that his wife was carrying meals for him to be provided to him in the fields whereas, in Court he stated that he was going on a donkey cart. If the complainant was going on a donkey cart. then there was no occasion for his wife to carry his meals. The reason is totally baseless. The fact remains that Mst. Safia was hit by the tractor. The place of occurrence is not denied and the manner with which she was hit is also not disputed. The fact that she was carrying meals for her husband appears to be quite probable because the alleged occurrence took place in the morning of month of June and at that time meals are provided to the male members who are working in the fields. Similarly, as regards presence of the witnesses i.e. Bashir Ahmad and Muhammad Sadiq, the same has been found to be doubtful as according to the learned Additional Sessions Judge there was discrepancy in the reasons stated by them for their presence. The discrepancy which weighed with him is extremely trivial. The fact remains that both of the witnesses belong to the locality and their presence at the place of occurrence cannot be treated as improbable. Not only the witnesses saw the occurrence, they have also attested the recovery of the tractor, meaning thereby that they were present at the place of occurrence when the police came to the spot and tractor was taken into possession. It will be absolutely unfair and unjust to discard their testimony on this score. They have made statements on oath and neither of the witness is inimically opposed towards the respondent nor they have any motive to falsely implicate him in this case.
As regards the fact that details of rashness and. negligence have not been furnished, the learned Additional Sessions Judge has erred in omitting the statement of P.W.4. He is an expert and according to him the steering was free and the brake was loose. Had the steering and brake been in proper order the accident could have been avoided. To determine whether there was rashness or negligence the attending circumstances have to be looked into. Unfortunately, the victim was going by the side of the road. Had the respondent been careful or vigilant he could have easily averted the accident but he hit the deceased who died as a result of injuries received by her. On factual plane the prosecution has successfully proved the case against the respondent, and there remains no doubt that the tractor was driven at the time of occurrence by the respondent and he hit Mst. Safia on account of his negligence and rashness.
On legal plane the learned Additional Sessions Judge has pointed out an irregularity committed by the learned Magistrate that he did not record the statement of P.W.1, P.W.2, P. W.3 and C. W.1 himself as such he violated the provision of section 355, Cr.P.C. It is true that section 355, Cr.P.C. lays down that memorandum of the substance of the evidence has to be written and signed by the Magistrate with his own hand. However, if the Magistrate is prevented from recording the statement himself he may ask his Reader to do so at his dictation but he should give reasons for not doing so. The statements according to the learned Additional Sessions Judge have not been written by the learned Magistrate, himself as there was difference in handwriting. However, they have been signed by the learned Magistrate. It has not been the case of the defence at any stage that witnesses were recorded in the absence of the Magistrate. The statements, therefore, were recorded in the presence of the learned Magistrate and the same must have been done on his dictation. Mere fact that the Magistrate omitted to record reasons for not writing the statements himself would not by itself invalidate the prosecution evidence. According to the learned Additional Sessions Judge a mandatory provision has been ignored, therefore, statements are no statements in the eyes of law. This observation by the learned Additional Sessions Judge does not appear to be sound and valid. It is correct that the word used in the section is "shall" be written and signed but this requirement has been qualified by the subsection (3) itself, according to which if he is prevented from recording the memorandum he is to record reasons of his inability to do so which of course be made in writing from his dictation in open Court and shall be signed by him. The fact that statements had been signed by him, were made in open Court and were recorded on his dictation, has no where been disputed. Although the word "shall" has been used in the section yet it has not been laid down as to what would be the consequence if a Magistrate omits to record the reasons for not writing the evidence himself. In absence of the consequences of violation of a provision of law, even if the word "shall" may have been used the provision will be treated as directory and not mandatory. Chapter XLV takes care of irregular proceedings. Section 537, Cr.P.C. lays down that no findings passed by a Court of competent jurisdiction shall be reversed or altered due to any error, omission or irregularity in the mode of trial, unless it is shown that such omission or irregularity has occasioned a failure of justice. To assess and determine whether a failure of justice occurred or not, the Court has to take into consideration whether the objection could and should have been raised at the early stage in the proceedings. In the present case no objection was taken when the evidence was being recorded by the learned Magistrate. As there is no objection or complaint with regard to the correctness of the statements recorded by the learned Magistrate, I do not think any failure of justice has accrued. Mere omission not to record the reasons would not invalidate the statements. I, therefore, do not approve of the observation made by the learned Additional Sessions Judge that the conviction on the strength of this evidence cannot be maintained. I am not oblivious of the fact that order of acquittal has to be accorded scantily and respect but if acquittal is not based on sound reasons and has caused injustice, the same cannot be upheld. As the learned Additional Sessions Judge has not assigned valid reasons to acquit the respondent and has extended the benefit of doubt on fictitious and superfluous considerations, therefore, the impugned judgment has lost its validity.
As a result of the above discussion, I find that prosecution evidence has successfully brought home the guilt of the respondent Khalid beyond any doubt and he is liable to be punished under section 320, P.P.C. Accordingly, I set aside the impugned judgment of acquittal passed by Ch. Muhammad Hussain Maikan, learned Additional Sessions Judge, Faisalabad and convict the respondent Khalid under section 320, P.P.C. However, considering that the occurrence took place in the year 1996 and the respondent also remained in jail for a few days it will be unjust to send him back to jail after so long. I do not impose any sentence of imprisonment. He is, therefore, ordered to pay Rs.1,42,322 as Diyat to the legal heirs of Mst. Safia deceased. In case help fails to make the payment of Diyat he will be kept in jail and be dealt with as undergoing simple imprisonment unless he furnishes security equivalent to the amount of Diyat to the, satisfaction of learned Sessions Judge, Faisalabad as prescribed under section 331, P.P.C.
Appeal is disposed of in the above terms.

H.B.T./R-15/L Order accordi

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1477 #

2000 P Cr. L J 1536

[Lahore]

Before Sheikh Abdur Razzaq and Muhammad Nawaz Abbasi, JJ

AMANULLAH ALIAS AMAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.208 of 1997, heard on 22nd March, 2000

Control of Narcotic Substances Ordinance (VI of 1995)‑‑

‑‑‑‑S. 9(c)‑‑‑Appreciation of evidence‑‑‑Accused were found travelling in vehicle from which huge quantity of Charas was recovered at the relevant time‑‑‑Recovery of Charas stood proved from statements of prosecution witnesses which statements remained un-shattered in lengthy cross-examination‑‑‑Accused had failed to adduce any evidence to show that prosecution witnesses had any enmity against them and accused had . also failed to produce any evidence in their defence‑‑‑Prosecution, in circumstances, had succeeded in establishing its case against accused beyond any shadow of doubt‑‑‑Services of. accused having been acquired by real culprits as carriers only, sentence awarded to them was reduced accordingly.

Muhammad Jamil Khan for Appellant.

Syed Sajjad.Hussain, A.A.‑G. for the State.

Date of hearing: 22nd March, 2000.

JUDGMENT

SHEIKH ABDUR RAZZAQ, J:‑‑‑ Briefly stated the facts are that on 24‑4‑1995 at 5‑30 p.m. Shahzada Alamgir F.I.O., A.N.F. (P.W.4) alongwith other officials was present at Gondal Chowk in connection with checking of narcotics. He received a secret information that a huge quantity of narcotic was being smuggled through Car No.MR‑8732 from N.‑W.F.P. to Punjab Province. In the meanwhile, Iftikhar Ahmad, S.‑I./S.H.O. of Police Station Rangoo with his patrolling party also reached there. Accordingly, a raiding party was constituted and reached village Matani at 615 p.m. They concealed the official vehicle under the cluster of trees near the well of Sher Afzal and started waiting for the said vehicle. At 7‑45 p.m., the said vehicle came from the side of River Indus and was made to stop by standing official jeep on the road. The driver of the said vehicle tried to run away by reversing the said vehicle. However, it was struck in the fields. Thereupon, its driver and the person sitting on the front seat, who being known to him was identified to be Abdul Hassan son of Sher Hassan, left the car and started running. Some of the officials of the raiding party tried to apprehend them but their efforts failed. However, the occupants of the rear seat were apprehended and they disclosed their names Amanullah alias Aman and Imtiaz Khan son of Sher Habib. The raiding party then conducted search of the said vehicle and found 12 bags of Charas containing 242 Littars weighing about 252 kilograms. The complainant separated 10 grams from each Littar and as such collected 2420 grams of Charas for sending to the Chemical Examiner. He prepared four other parcels of the remaining Charas and as such prepared five sealed parcels on the spot. As a result of further search of the vehicle, duplicate registration book P.5 and driving licence of Fazal Subhan P.6 were also recovered. The accused Amanullah further disclosed that the said Charas was given to them by Qaisar Khan son of Sardar Khan of Khyber Agency, and was to be delivered at Lahore. Consequently, complainant (P.W.4) lodged complaint Exh.P.C. and sent the same to the police station for formal registration of case through Muhammad Kausar, Constable.

The complainant Shahzada Alamgir, F.I.O. A.N.F. (P.W.4) then started investigation of this case. He prepared rough site plan of place of occurrence Exh.P.D., despatched the sample parcels to the office of Chemical Examiner, obtained warrants Exhs.P.E. and P.F. against Fazal Subhan and Abdul Hassan, moved an application Exh.P.G. for obtaining proclamations against the said accused and consequently, obtained the same Exhs.P.H. and P.I. and then requested for proceeding against them under section 512, Cr.P.C. after usual investigation, he submitted the challan in Court against the accused/appellants.
A charge under section 9(c), C.N.S.O., 1995 was framed against the accused to which they pleaded not guilty and claimed trial.
In order to bring home guilt to the accused, prosecution examined P.W.1 Ghulam Farid Headconstable, who deposed that on 24‑4‑1995, he was posted as Moharrir at Police Station Rango when he was given five sealed parcels by Shahzada Alamgir, F.I.O., A.N.F. (P.W.4) for keeping the same in Malkhana. He further deposed that on 26‑4‑1995, he delivered sample parcel to Muhammad Rukhsar, Constable (P.W.2) for onwards transmission to the office of Chemical Examiner, Rawalpindi. Muhammad Rukhsar (P.W.2) corroborated the statement of P.W.1 regarding the entrustment of sample parcel and its intact delivery on the same day in the office of Chemical Examiner. Muhammad Manzoor‑ul‑Haq H.C. (P.W.3) is a member of the raiding party and corroborated the prosecution version appearing in complaint Exh.P.C. Shahzada Alamgir, F.I.O., A.N.F. (P.W.4) is the complainant and Investigating Officer of this case, whose evidence has already been discussed above. Mian Mushtaq, A.S.‑I. (P.W.5) scribed the F.I.R. Exh.P.C./1 on the basis of complaint Exh.P.C. Then learned P.P. produced report of Chemical Examiner Exh.P.J. and closed the prosecution case vide statement, dated 4‑10‑1997.
When examined under section 342, Cr.P.C. the accused Amanullah denied the prosecution version and in reply to question No.7 as to why he had been involved in this case stated as follows:‑‑

"I am a poor labourer. Work at Rawalpindi. Occasionally visits my home. On the day of my arrest I alongwith Imtiaz accused was coming from Rawalpindi., When the bus reached Gondal Chowk, I and Imtiaz accused in order to take food alighted from the said bus. There was gathering at Gondal Chowk at that time. We suspected that there might be an accidental case, we in order to see the said accident became close to the crowd but at that time a narcotics staff arrested me and co‑accused Imtiaz Ahmad at that time I saw Cap No.MR‑8732, standing there. Narcotics Staff involved us in this case falsely and real culprits were let off. It was evening time when we alighted from the bus at Gondal Chowk. All the witnesses are narcotics force officials and are interested in the success of their case, therefore, they falsely deposed against me."

Similarly, the accused Imtiaz Khan denied the prosecution version and adopted the statement of his co‑accused as given above.

After going through the evidence produced by the prosecution, the trial Court convicted the accused under section 9(c), C.N.S.A. and sentenced them to imprisonment for life and a fine of Rs.1,00,000 each or in default thereof to further undergo R.I. for three years each. However, they were extended benefit of section 382‑B, Cr.P.C.
Feeling aggrieved of the said judgment, the accused Amanullah has filed the instant appeal, whereas accused/appellant Imtiaz Khan has preferred Criminal Appeal No.196 of 1997. As both these appeals arise out of one judgment, so these are being disposed of by this single judgment.
We have heard learned counsel for the appellants as well as the learned A.A.‑G. for the State and have gone through the record minutely.
Main contention of learned counsel for the appellants is that Shahzada Alamgir, F.I.O., A.N.F. (P.W.4) being complainant was not competent to investigate the case and as such investigation is tainted with mala fide, that neither appellants travelled in the vehicle P.7 nor they were apprehended on the spot as alleged by the prosecution, that they have been made a scape‑goat as the actual occupants were let off and they were implicated as they happened to be present at Gondal Chowk, just to show their efficiency, that it does not appeal to reason that driver and other person could succeed in decamping from the place of occurrence in the presence of such heavy contingent of police, that it has come on record that scales and weights used in weighing the narcotics were secured from a shopkeeper of Gondal Chowk which fact proves .that the vehicle was intercepted at Gondal Chowk and not at the place alleged in the complaint, that all these facts make the case of the prosecution highly doubtful and as such, the judgment is not sustainable in the eyes of law. He, however, submitted that if his submissions do not find favour then he would request for reducing the sentence awarded to the appellants, as their role at the most is of a carrier.
Conversely, the impugned judgment has been supported by the learned A.A.‑G. for the State.
The main attack of learned counsel for the appellants is that Shahzada Alamgir, F.I.O., A.N.F. (P.W.4) being a complainant could not investigate the case. This plea is devoid of force, as he is fully competent to investigate case by virtue of powers conferred upon him under the Control of Narcotics and Substances Ordinance, Act. So far as the question of establishing case against the accused/appellants is concerned, besides the ,statement of complainant (P.W.4), prosecution has also examined P.W.3 who is also a member of the raiding party and he has fully corroborated the prosecution version. Both P.Ws.3 and 4 have been subjected to lengthy cross‑examination and learned defence counsel has failed to point out any material discrepancy in their statements. The stand of, appellants that they were not travelling in the said vehicle and were involved falsely as they happened to be present at Gondal Chowk is devoid of any force. As had there been any truth in their stand, they could examine any other person in their defence but they failed to do so. On the other hand, they have failed to aduce any evidence to show that P. Ws.3 and 4 had got any enmity against them and were even known to them prior to this occurrence. Under these circumstances, the question of their false involvement of substituting them does not arise.
The appellants have been found travelling in the vehicle, out of which 252 kilograms of Charas was recovered at the relevant time. The recovery of said Charas stands proved from the statements of P.Ws.3 and 4. Both these P.Ws. have been cross‑examined at length and even then defence counsel failed to shatter their evidence. Thus, prosecution has succeeded in establishing its case beyond any shadow of doubt. However, the facts reveal that their services have been acquired as carriers only. Thus, keeping their said role, we feel that sentence awarded to them is an excessive one. Accordingly, while maintaining the conviction and sentence of fine, we reduce the sentence of R.I. for 10 years. The appellants shall, however, be entitled to the benefit of section 382‑B, Cr.P.C.
With the modification in the sentence awarded to the appellants, the appeal stands dismissed.

H.B.T./A‑53/L Order accordingly.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1527 #

2000 P Cr. L J 1540

[Lahore]

Before Muhammad Naseem Chaudhri and Muhammad Akhtar Shabbir, JJ

MUHAMMAD SIDDIQUE‑‑‑Appellant

versus

AMJAD HUSSAIN SANDHAL and 4 others‑‑‑Respondents

Intra‑Court Appeal No.28 of 2000 in Writ Petition No. 11170 of 1999, decided on 2nd March, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 409/420‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑‑Law Reforms Ordinance (XII of 1972), S.: '‑‑‑Quashing of F. I. R. ‑‑‑Appreciation of evidence‑‑‑Case against accused was that he obtained disputed amount on loan from complainant and proceeded abroad and on return he refused to pay back said amount to complainant‑‑‑High Court accepting petition of accused had quashed F.I.R. against him‑‑‑Complainant filed Intra‑Court Appeal against judgment of Single Judge of High Court quashing the F.I.R.‑‑‑Validity‑‑Accused being friend of complainant had obtained disputed amount on loan which he promised to return him later on after coming back from abroad‑‑Amount, in circumstances, was not obtained by accused from complainant as bribe as alleged by complainant because accused was not entrusted with amount as public servant nor he had dishonestly misappropriated or used or converted same to his use but was taken as loan as friend‑‑‑Ingredients of offence of criminal breach of trust were not made out and case was not covered under S.409, P.P.C.‑‑‑Case under S.420, P.P.C. also had not been made out against accused as he had taken said amount on loan with promise to repay same to complainant and if accused had refused' to pay back said amount, he had committed no offence‑‑‑If complainant was aggrieved by act of accused, he could resort to remedy by filing a civil suit against accused‑‑Accused being a public servant had not committed offence of criminal misconduct as he had not accepted or obtained or agreed to accept or attempted to obtain for himself from complainant any illegal gratification nor he had dishonestly or fraudulently misappropriated or otherwise had converted for his own, use any property entrusted to him or under his control as a public servant or allowed any person to do so‑‑‑Single Judge of High Court, after applying his judicial mind on all aspects of case had quashed the F.I.R.‑‑‑Appellant/complainant having not been able to point out any illegality or jurisdictional defect in the judgment, same could not be interfered with in intra‑Court appeal ‑‑‑Intra‑Court appeal was dismissed in circumstances.

Rana Muhammad Arshad Khan for Appellant.

ORDER

This order will dispose of I.C.A No.28 of 2000.

The facts, in brief, are that an F.I.R. No .230 of 1999, dated 23‑11‑1999, had been registered under section 409/420, P.P.C. read with section 5(2) of 1947, P.C.A., at Police Station Anti‑Corruption Establishment, Multan Region, against respondent No.1/Amjad Hussain Sandhal, Tehsildar, Board of Revenue, Punjab, Lahore, on the complaint of Muhammad Siddique, appellant (herein) alleging there in the F.I.R. that respondent No.1 had obtained a loan of Rs.45,000 from him in the year 1990 while he was proceeding to U.S.A, and when he returned from abroad, he refused to pay back the same, He further, alleged that respondent No. l was a Naib‑Tehsildar, He left for America without leave, producing a forged medical certificate showing the justification of his absence. The complainant prayed that proceedings be initiated against respondent No. l and amount be returned to him.
A Writ Petition No. 11170 of 1999 for the quashment of the F. I. R. filed by respondent No. l in this Court and the learned single Judge in Chamber vide judgment, dated 10‑2‑2000 accepted the same and quashed the F.I.R.
Learned counsel for the appellant contended that the learned Judge in Chamber has not adverted to report and parawise comments submitted by the Anti‑Corruption Authorities, in which, the said authorities have stated that the case in question is being investigated with regard to the allegation of obtaining Rs.45,000 by the respondent No. l and the learned Judge has erred in law in holding that the offence under section 409/420, P.P.C. is not made out against the accused/writ petitioner. He further argued that respondent No. l had prepared a forged medical report on behalf of Dr. Bashiruddin Hashmi, and, hence, an offence for preparing the document is made out against him. He further submitted that mere incorporation of the offence in column No.3 of the F.I.R. does not constitute any offence. The offence is constituted against respondent No. l from the contents of the F. I. R., referred to above and that the respondent No. l had left the country without leave from competent authorities and thereafter, to justify his absence has prepared the forged documents and gained benefit out of this document. He further contended that respondent No. l had adjusted the amount of Rs.45,000 for sanctioning of a mutation in favour of the complainant/appellant which could not be sanctioned legally.
We have considered the arguments addressed by the learned counsel for the appellant and gone through the record. It is admitted position that respondent No. l being the friend of the appellant had obtained an amount of Rs.45,000 as loan which he promised to return him later on after coming back from America. Meaning thereby, that this amount was not obtained by respondent No. l from the appellant as bribe. Section 409, P.P.C. enshrines that "whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine". The criminal breach of trust is "whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation. of any direction of law prescribing the mode in which such mode is to be discharged".
From the plain reading of the above referred provision of law, it reveals that respondent No. l had not been entrusted with this amount as public servant nor he being the same has dishonestly misappropriated or used or converted to his use this amount. The amount mentioned above was taken by respondent No. l as loan at the time there was inter se friendship. The ingredients of offence of criminal breach of trust were not made out and case is not covered under section 409, P.P.C.
Similarly, the offence under section 420, P.P.C. for the purpo a of cheating on dishonest inducement on the part of a person with intent to deprive the person so deceived to deliver any property is also not made out. As from the contents of the F.I.R., respondent No.1 borrowed the said amount with promise to repay the same to him and if the respondent had refused to pay back the said amount, then, he has committed no offence. If the appellant is aggrieved by this act of respondent No. 1, he could resort to the remedy by filing of a civil suit against respondent No. 1.
As to section 5 of the Prevention of Corruption Act, 1947, is concerned, respondent No. l being a public servant has not committed the offence of criminal misconduct. He has not accepted or obtained or, agreed to accept or attempted to obtain for himself from the appellant, any illegal gratification neither he has dishonestly or fraudulently misappropriated or otherwise converted for his own use any property entrusted to him or under his control as a public servant or allowed any person to do so.
As to the contention of the learned counsel for the appellant that later on the respondent No. l has promised to sanction a mutation in favour of the appellant, suffice it to observe, that no such evidence has been placed on record nor he has been able to show which of the mutation was sanctioned by respondent No. l in lieu of the amount obtained by him as loan.
From the perusal of the record it reveals that an inquiry was initiated against respondent No. l on the allegation of wilful absence from duty and submission of fake medical certificate regarding his illness, was conducted by the Inquiry Officer/M.I.C., Multan and he came to the conclusion that the allegation against respondent No. l do not stand proved. The departmental 'action against respondent No.1 was dropped, thus, after the scanning of the record, it transpired that the allegations of the appellant against respondent No.1 for making a false or forged document are misconceived.
Learned Judge in Chamber after applying his judicial mind on all the four corners of the case has accepted the writ petition and quashed the F.I.R. Learned counsel for the appellant has not been able to point out any illegality or jurisdictional defect in the impugned judgment, therefore, in view of the above discussion, we have no option but to dismiss this Intra Court Appeal in limine.

H.B.T./M‑134/L I.‑C.A. dismissed.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1540 #

2000 P Cr. L J 1548

[Lahore]

Before Dr. Munir Ahmad Mughal, J

Mst. IRSHAD BANO‑‑‑Petitioner

versus

THE STATE and 7 others‑‑‑Respondents

Criminal Miscellaneous Application No.1706/C/B of 2000, decided on 21st April, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(5)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11‑‑‑Bail, cancellation of‑‑‑Pre‑arrest bail which later on was confirmed had been sought to be cancelled by complainant on ground that essential conditions for grant of bail to accused had not been observed by Trial Court‑‑‑Alleged abductee who was a major being 18 years' old in her statement made under S.164, Cr.P.C. had asserted that she was not abducted by anyone, but she being sui juris had married with accused with her own consent‑‑‑Case against accused was not fit for cancellation of bail granted by Trial Court in view of said statement of alleged abductee and in presence of Nikahnama of spouses.

PLD 1984 SC 192; PLD 1998 SC 97; PLD 1997 SC 545 and 2000 PCr.LJ 284 ref.

Ch. Arshad Mehlu for Petitioner. Abdul Majeed Kasuri for the State.

Sardar Mohabbat Ali Dogar for Respondents Nos.2 to 8.

ORDER

This is an application for cancellation of bail of respondents Nos.2 to 8 granted by Additional Sessions Judge, Gujrat vide order, dated 24‑3‑2000 in Case F.I.R. No.126, dated 26‑2‑2000 for an offence under section 11 of the offence of Zina (Enforcement of Hudood) Ordinance, VII of 1979, registered at Police Station Kunjah,, Tehsil and District Gujrat on the complaint of Mst. Irshad Bano alleging that respondents Nos.2 to 8 had abducted the daughter of the complainant‑petitioner namely Mst. Samina Qaisra early in the morning on 16‑2‑2000 with high‑handedness and forcibly while the accused persons were armed with fire‑arms and‑they committed this heinous offence.

Respondents Nos.2 to 8 applied for pre‑arrest bail which was confirmed on 24‑3‑2000 by the learned Additional Sessions Judge, Gujrat. It is stated that during the investigation section 380, P.P.C. was added and that the petitioner in view of the contents of the F.I.R. requests that section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance should be added which was not added. Thereafter, he approached to the learned Additional Sessions Judge who also declined and he filed Writ Petition No.4503 of 2000 which was ultimately dismissed.
The learned counsel for the petitioner seeks cancellation of bail of respondents Nos.2 to 5 namely Riaz, Muhammad Younas, Muhammad Rasheed and Muhammad Nadeem sons of Muhammad Akram on the ground that it was a pre‑arrest bail and that essential conditions for the grant of such bail as laid down by their Lordships of the Honourable Supreme Court of Pakistan reported in PLD 1984 SC 192 and PLD 1998 SC 97 have not been observed by the learned Additional Sessions Judge. Learned counsel submitted that the gist of those decision of apex Court was that the mala fides for registration of the case with ulterior motive particularly on the part of police and false victimization should have been shown and established by accused for the grant of pre‑arrest bail and that nothing such has come on record in the instant case. Learned counsel submitted that in this case a minor girl was abducted in a very objectionable and unreasonable way and very heinous methods have been adopted for abduction of the said girl while it is admitted by the accused persons that they chased her when she was going to school or college ignoring the moral, values of the society and the social and Islamic principles. It is also submitted that the bail before arrest is meant for honourables, dignified, gentlemen and good citizens of the society and is not meant for those persons who commit mean and heinous offences like the one committed in this case. Learned counsel for the petitioner also submitted that as per principles laid down by the Honourable Supreme Court of Pakistan in the case of PLD 1997 SC 545 and also 2000 PCr.LJ 284, the explanation for false implication should be very plausible and shall appeal to the reason whereas both these things were missing in this case. Learned counsel for the petitioner lastly submitted that the whole argument of the learned Additional Sessions Judge could be of use in a bail after the arrest and not in a bail before arrest case. The learned counsel submitted that the learned Additional Sessions Judge should have been impressed from extraneous circumstances and that the tentative assessment should have been only of the facts that has come on record.
On the other hand learned counsel for the respondents submitted that the authorities referred to by the learned counsel for the petitioner is distinguishable for the reasons that in that case the abductee was a minor and in the instant case the abductee as per contents of the F.I.R. is a major being 18 years old which fact is further fortified from admission that she is F.A. and that it was not a case of abduction. She had married of her own accord with the accused and that circumstances of the alleged abduction are very informal as the mother was divorced by the father who wanted to marry himself by giving hand of the alleged abductee to those from whom he has asked for his own marriage and that this was done after she had conducted her marriage with Riaz. The said Riaz has also filed a suit for restitution of conjugal rights where the alleged abductee has been appeared before the learned Civil Judge and wilfully made statement that she wanted to go to the house of her husband and she also filed a complaint against her father etc. in which she deposed that she is sui juris and wanted to marry Riaz with her own consent and that her marriage had been duly solemnized and that the Nikah was duly registered and that there was no abduction. On the last date she was examined by Ilaqa Magistrate and she made her statement under section 164, Cr.P.C. that she was not abducted by anyone. She married herself with Riaz and that she has not stolen anything from the house of her father, and that all the allegations against her are false frivolous and that she wanted to lead her matrimonial life and that there was no question of mala fide on the part of police.
Learned counsel for the State in his argument submitted that t e statement of the abductee was recorded by the police under section 161, Cr.P.C. in which she complained that 15/16 Tolas of gold was taken away by the accused and also Rs.30,000 in cash and that these ornament and the amount is yet to be recovered.
Learned counsel for the accused submitted that the divorce of the mother of the abductee had taken place 14 years back and thereafter, the said lady contracted two more marriages and that there was no question of any ornament being in the possession previous husband from where those could be stolen.
I have given due consideration to the valuable arguments on both sides.
In view of the statement of abductee, the pendency of the suit with the Family Judge regarding the restitution of conjugal rights, the presence of Nikahnama to which both the spouses are admitting as correct, it is not a fit case for cancellation of bail of respondents Nos.2 to 8. As such this petition g has no merit and the same is dismissed.

H.B.T./I‑13/L Petition dismissed.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1544 #

2000 P Cr. L J 1551

[Lahore]

Before Ghulam Mahmood Qureshi, J

Mst. NAJMA BIBI‑‑‑Petitioner

versus

CIVIL JUDGE, 1ST CLASS/MAGISTRATE SECTION 30, CHISHTIAN, DISTRICT BAHAWALNAGAR and 4 others‑‑‑Respondents

Writ Petition No. 1862 of 1999/BWP, decided on 28th March, 2000. .

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 173 & 156‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) S.10(3)‑‑‑Constitution of Pakistan (1973), Art.199‑‑Constitutional petition‑‑‑Re‑investigation and discharging accused during pendency of criminal proceedings before Trial Court‑‑‑Quashing of order discharging accused‑‑‑Police, after investigation, found the accused guilty and submitted final challan to a competent Court‑‑‑Bail application filed by accused who were arrested and sent to judicial lock‑up was rejected by the Court‑‑‑Police on application of accused for re‑investigation of the case, conducted ex pane re‑investigation without joining complainant and discharged accused and issued Robkar for release of accused from judicial lock‑up‑‑‑Validity‑‑‑Police was not competent to pass discharge order after submission of complete challan under S.173, Cr.P.C. to Court of competent jurisdiction which had taken cognizance of the case‑‑‑Trial Court before which case was in progress could only consider discharge report‑‑‑Trial Court after submission of complete challan under S.173, Cr.P.C. by police having taken cognizance of case, police had no authority to file supplementary challan‑‑‑Police on basis of re‑investigation of case on said challan, could not discharge the accused‑‑‑Prosecution could file complete challan, but could not be permitted to file supplementary challan in Court which had taken cognizance of offence on receipt of complete or incomplete challan‑‑‑Discharge order, incompetently passed by police was declared illegal and without lawful authority, by High Court and was ordered to be quashed.

Syed Waqar Hussain Shah v. The State PLD 1988 Lah. 666 and Muhammad Alam and another v. Additional Secretary to Government of N.‑W.F.P. and others PLD 1987 SC 103 ref.

Nadeem Iqbal for Petitioner.

Malik Muhammad Aslam for Respondents Nos.2 and 3.

ORDER

A case F.I.R. No.192 of 1998, dated 4‑6‑1998 under section 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered at Police Station Saddar, Chishtian. The case was investigated by different Police Officers and finally D.S.P. Crime Branch and S.P., C.I.A., Bahawalpur conducted the investigation and concluded that respondents Nos.2 and 3 were guilty and finally the challan was submitted by the local police against the accused persons under section 10(3) of the said Ordinance to the Court of learned Additional Sessions Judge, Chishtian. The accused were also arrested and sent to Judicial lock‑up. The accused/respondents submitted bail application, which was rejected by the learned Additional Sessions Judge vide order, dated 14-1‑1999.

After submission of challan, respondents Nos.2 and 3 submitted an application for re‑investigation of the case and the Additional S.P., Bahawalpur after conducting ex parte investigation, as the petitioner/ complainant was never joined in the said proceedings, directed respondent No.4, S.H.O. concerned, to prepare the discharge report. In compliance with that order the S.H.O. submitted discharge report to respondent No.1, who vide order, dated 4‑3‑1999 agreed with the discharge report and discharged the accused persons from the case and issued Robkar for their release from the judicial lock‑up.
The learned counsel for petitioner has contended that the discharge order passed by the respondent No. l is illegal and without lawful authority. It is contended that after submission of challan, under section 173, Cr.P.C. by the police, to the Court of competent jurisdiction, which has taken cognizance of the case, respondent No. l was not competent to pass the discharge order; it was only trial Court before whom the case was in progress to consider the discharge report if there was any. It is further contended that respondent No. 1 has tried to pre‑empt the jurisdiction of the trial Court and has passed an order which is not warranted by law.
Conversely, the learned counsel for respondents Nos.2 and 3 has supported the impugned order.
I have heard the learned counsel for parties and have also perused the record, therefore, the present case is being decided as a notice case. Perusal of the discharge report shows that respondent No.4 did not mention about the submission of challan in the Court. It appears that it was deliberately done as by concealment of this material fact, respondent No. l succeeded in procuring the discharge order.
The learned Additional Sessions Judge, Chishtian while dismissing bail application of respondents Nos.2 and 3 observed that version of complainant is supported by medical version and there was incriminating material. While submitting supplementary challan before respondent No. 1, it was specifically mentioned that the report of Chemical Examiner is in negative and the finding of doctor is not supporting the prosecution version.

5‑A. The above narrated facts sufficiently indicate that the learned Additional Sessions Judge has taken cognizance of this case, on the report submitted under section 173, Cr.P.C. appended with the complete challan, in which Abdul Razzaq and Mahmood Ahmad, respondents Nos.2 and 3 were arrayed in column II. Thereafter, respondents Nos.2 and 3 were got discharged by the police during pendency of trial on the basis of further investigation and supplementary challan. The prosecution had no jurisdiction/authority to file supplementary challan after filing' complete challan in the Court, as held in Syed Waqar Hussain Shah v. a State PLD 1988 Lah. 666. There is no cavil with the proposition that the police can investigate the case even after filing of complete challan, but there is no law allowing filing supplementary challan thereafter, before a different Court who was even not competent to take cognizance of the offence mentioned in the F.I.R. The prosecution can file incomplete challan and then complete challan under the Code of Criminal Procedure and Police Rules but it does not permit to file supplementary challan in the Court, who has taken cognizance of the offence on the receipt of complete or incomplete challan. In the instant case the prosecution has tried to favour respondents Nos.2 and 3 in a manner which is. not permitted under the law. In case Muhammad Alam and another v. Additional. Secretary to Government of N.‑W.F.P. and others PLD 1987 SC 103 Honourable Judge of Supreme Court held as under: ‑‑

"After taking the cognizance and even before the issuance of the process, the normal procedure under the Code or the Regulation, as the case may be, would be followed. The police report would not relieve the Court of its obligation to continue the proceedings until their proper termination under the relevant law. The cancellation of case under section 173 is not permissible after the cognizance has been taken. But it could have been done before that stage. It was so held in the Full Bench case of Lahore High Court Wazir v. The State PLD 1962 (W.P.) Lah. 405, which we feel is correct approach in so far as the point of cancellation, before cognizance, is concerned. "

In view of the above discussion this Constitutional petition is allowed and the impugned discharge order, .dated 4‑3‑1999 is declared to have been passed without lawful authority and of no legal effect. Parties shall hear their own costs.

H.B.T./N-19/L Petition allowed.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1548 #

2000 P Cr. L J 1554

[Lahore]

Before Muhammad Naseem Chaudhri, J

HABIB BANK OFFICERS WELFARE ASSOCIATION, GUJRANWALA and others‑‑‑Petitioners

versus

DISTRICT MAGISTRATE, GUJRANWALA and others‑‑‑Respondents

Writ Petition No. 19666 of 1998, heard on 21st March, 2000.

Criminal Procedure Code (V of.1898)‑‑‑

‑‑‑‑S. 144‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Issuance of order under S.144, Cr.P.C.‑‑‑Grounds‑‑‑Scope‑‑Petitioners in their. Constitutional petition had prayed that order issued by District Magistrate under S.144, Cr.P.C. be declared illegal, without lawful authority and of no legal effect contending that said order could only be issued in urgent cases of nuisance or apprehended danger, but no such situation was existing‑‑‑,Order under 5.144, Cr.P.C. had to be in the form of injunction asking a person to abstain from a certain act and not to be in form of mandatory injunction to do a certain act, but District Magistrate had issued mandatory injunction to do certain act mentioned therein which order could not remain in field‑‑‑Order under S.144, Cr.P.C. could only be passed in urgent cases of nuisance or apprehended danger, but nothing was on record to establish said conditions as Authorities did not bring on record any material in that regard‑‑‑Without presence of sufficient , ground for proceeding under S.144; Cr.P.C. and immediate prevention or speedy remedy, said order could not be passed‑‑‑Order under S.144, Cr.P.C. was passed mechanically and petitioners who were responsible persons being members of Bank Officers Welfare Association, were not heard before passing the order who had been condemned unheard and had not beer provided chance to place instructions of State Bank before District .Magistrate‑‑‑Petitioners were not wrongdoers, but through passing of sate order they had been wronged which was not the intention of issuance of said prohibitory order‑‑‑High Court in exercise of Constitutional jurisdiction declared that order passed under S.144, Cr.P.C. by District Magistrate, was without lawful authority, illegal and‑ of no legal effect and cases registered against petitioners were also quashed.

Hakim Khan and others v. The State PLJ 1990 Cr.C. (Pesh.) 596 and Gulab Din etc. v. The Azad J&K Government PLD 1960 Azad J&K 51; Ram Narain Sah and another v. Parmeshar Parsad Sah and others AIR (29) 1942 Pat. 414 and Niaz Muhammad and 10 others v. The District Magistrate, Bahawalpur PLD 1975 BJ 36 ref.

Zahid Hamid for Petitioners.

Ms. Roshan Ara, Asstt. A.‑G. for Respondents.

Date of hearing: 21st March,. 2000.

JUDGMENT

The facts giving rise to the filing of this writ petition are as under:‑‑

The petitioners Nos. l and 2 are trade unions registered under the Industrial Relations Ordinance, 1969. Petitioner No. l is an Association of Employers whose members include Managers and Officers of all Branches of Habib Bank Limited in Gujranwata Circle comprising Gujranwala, Gujrat and Sheikhupura District. According to the Constitution of petitioner No. 1, its aims and objects include, inter alia, taking of necessary legal action for maintenance of the reputation and prestige of its members and improvement of their welfare, and providing material and legal assistance as and when required. Petitioner No.2 is a trade union of workmen and Collective Bargaining Agent, whose members include employees of Habib Bank Limited, City/Central Zone and other related offices in Gujranwala.. Basic principles governing the work of petition No.2 include the ensuring of security and stability of service of its members in particular, and amelioration of their social, civic, cultural and economic conditions in general. Petitioners Nos. 3, 4 and 5 are members of petitioner No. l and petitioners Nos.6, 7 and 8 are members of petitioner No.2. They are Managers and Security Guards respectively, of branches of Habib Bank Limited at Jandiala Baghwala, Mandiala Tega and Mandiala Waraich, District Gujranwala. On 17‑3‑1998 the District Magistrate, Gujranwala, respondent No. l passed an order under section 144 of the Code of Criminal Procedure, 1898 directing that the following instructions be complied with (in) the Revenue limits of Gujranwala District:‑‑‑

"(i) No Manager or Incharge of a Bank of financial institution shall allow any person other than an employee of that Bank or institution without him having been thoroughly checked for purposes of such person having carrying any arms or explosive material.

(ii) No Manager or Incharge of a Bank or Financial institution shall allow entrance door of the institution unattended and without having posted security guard over there.

The said order remained in force for a period of two months. Subsequently, respondent No. I has passed a similar order on 9‑6‑1998, followed by an identical order on 11‑8‑1998 arid in both the last mentioned two Executive orders Jewellary shops, Money changers, Octroi posts and petrol pumps were also directed to adopt adequate security measures. According to the petitioners the orders, dated 17‑3‑1998, 9‑6‑1988, and 11‑8‑1998 have been passed by respondent No. l on the directions of the Secretary, Home Department, Government of the Punjab, Lahore, respondent No.4.
Pursuant to the aforesaid orders under section 144 of the Code of Criminal Procedure, a wave of terror was said to have been unleashed against the petitioners by police authorities under the command of the Deputy Inspector‑General of Police, Gujranwala Range, Gujranwala, respondent No.3. Cases under section 188, Pakistan Penal Code have been registered against petitioners Nos.3 and 6 on 6‑7‑1998 vide F.1.R. No.72G of 1998 at Police Station Saddar, Gujranwala; against petitioners Nos.4 and 7 on 5‑8‑1998 vide F.I.R. No.288 of 1998 at Police Station Whando and against petitioners Nos.5 and 8 on 6‑8‑1998 vide F.I.R. No.379 of 1998 at Police Station Gujranwala Cantt. In all the F.I.Rs., it has been alleged that E instructions of respondent No.1 contained in the orders under section 144 of the Code of Criminal Procedure had been violated and the Managers (i.e. petitioners Nos.3, 4 and 5) and the security guards (i.e. petitioners Nos.6, 7 and 8) had not made adequate security arrangements in their respective Branch premises. In the case of petitioners Nos.4 and 7, the case under section 188, Pakistan Penal Code was registered pursuant to a dacoity at the branch premises regarding which F.I.R. No.287, dated 5‑8‑1998 Police Station Wahndo was filed under section 392, Pakistan Penal Code. While petitioner No.3 managed to obtain bail before arrest, the other petitioners were arrested. They' are now on bail.
Meanwhile, under cover of the order under section 144 of the Code of Criminal Procedure, members of petitioners Nos.1 and 2 posted at Habib Bank Limited Branches were harassed and threatened by the police authorities under respondent No‑3, notwithstanding the fact that they are complying with relevant instructions and directions pertaining to Bank Security issued by the State Bank of Pakistan. In this atmosphere charged with fear and tension, since it had become impossible for members of petitioner No.1 and other staff to discharge their duties efficiently to the satisfaction of their superiors and the Bank's customers, members of petitioner No.1 vehemently protested against the illegal action and highhanded attitude of police officials under respondent No.3. As a result, most of the branches of Habib Bank Limited in Gujranwala Zone were forced to close down for some time. Representatives of petitioner No. l as well as officials of Habib Bank Limited have met the District Magistrate, Gujranwala, respondent No.1 and the Senior Superintendent of Police, Gujranwala, respondent No.2 and pointed out that security arrangement in the bank branches are naturally of paramount importance to them, that they are fully complying with instructions and directions of the competent authority mentioned above, and, while assuring them of their full cooperation in preventing bank‑related crimes, have demanded that illegal harassment and interference in the duties being discharged by the members of petitioner No. l roust cease. However, the order under section 144 of the Code of Criminal Procedure has not been recalled and harassment of members of petitioner No. l continues unabated.
Aggrieved by the orders under section 144 of the Code of Criminal Procedure, dated 17‑3‑1998, 9‑6‑1998 and 11‑8‑1998 (hereinafter referred to as the impugned orders), the petitioners filed this writ petition to get the same declared as illegal, without lawful authority and of no legal effect. In this regard they contended that the respondent No. l has no jurisdiction to pass the impugned orders under section 144 of the Code of Criminal Procedure as orders under section 144 of the Code of Criminal Procedure can only be passed in "urgent cases of nuisance or apprehended danger", neither of which existed in the present case. There is no ground whatsoever for respondent No. l forming an opinion that "there are sufficient grounds for proceeding under this section and immediate prevention or speedy remedy is desirable". In the presence of the instructions /directions of the competent authority (State Bank of Pakistan) relating to bank security, there is no grave emergency or any gap or lacunae in security measures/arrangements which the impugned orders can be deemed to meet/fill. In the circumstances the impugned orders could not be passed under section, 144 of the Code of Criminal Procedure. They asserted that the impugned orders are illegal in that they are violative of the legislative intent. An order under section 144 of the Code of Criminal Procedure is a temporary order for two months' duration providing for immediate, stop‑gap arrangements to meet an urgent/ emergent situation till permanent remedial measures are taken. Since security measures/arrangements already exist in the form of instructions/directions of the State Bank of Pakistan, the impugned order, dated i7‑3‑1998 was unnecessary to begin with. Its repeated, mechanical extensions in the form of orders, dated 9‑6‑1998 and 11‑8‑1998, which are clearly attempts to give the instructions contained therein a permanent effect, are illegal and without lawful authority especially when the validity of the impugned orders has been extended by the Provincial government in exercise of ‑powers under subsection (6) of section 144 of the Code of Criminal Procedure. They maintained that the respondent No. l has no jurisdiction to pass the impugned orders containing instructions to Banks which under the Banking Companies Act, 1962 are under the general superintendence and control of the State Bank of Pakistan. The State Bank alone has the power to give directions to the Banks under sections 41 and 42 of the said Act. Directions/instructions relating to Bank security measures have been issued by the State Bank of Pakistan to all Banks and are being complied with by the petitioners. The instructions contained in the impugned orders are not in line with the aforesaid directions/instructions of the State Bank of Pakistan, which. the petitioners are obliged to follow especially when the petitioner's employer, Habib Bank Limited is also complying with the decision regarding security arrangements in banks taken in the meetings of the Presidents of major Pakistani Banks arranged by respondent No.2 with the Chief Minister, Punjab on 14‑3‑1997 and 14‑7‑1997 and thus, there is no justification whatsoever for the impugned orders, which have been issued by respondent No. l by usurping jurisdiction not vested in him. They alleged that the police authorities under respondents Nos.2 and 3 are malafidely abusing and misusing the impugned orders to illegally harass, intimidate, maltreat and humiliate the petitioners and to cover up their inefficiency and negligence in preventing and tracing crimes in general and bank robberies in particular by ascribing the blame to poor security arrangements on the part of the banks and its officials. The impugned orders have been directed at, and are being used against, the "wronged" rather than "wrong‑doers". They, asserted that the impugned orders have been passed ex parte which can only have been done under subsection (2) of section 144 (ibid) "in case or emergency or in cases where circumstances do not admit of serving in due time of a notice upon a person against whom the order is directed". This does not apply in the present situation, where there was no grave emergency preventing issue of notice to the banks/petitioners. Moreover, no notice has been served on the banks/petitioners even after passing of the impugned orders, that the impugned orders have been passed mechanically by respondent No. l on instructions of respondent No.4 without considering the facts and law and that the proceedings initiated against petitioners Nos.3 to 8 through registration of F.I.Rs. based on alleged violation of the impugned orders are liable to be quashed, being illegal and void.
The writ petitioners accordingly prayed that the impugned orders may be declared illegal, without lawful authority and of no legal effect and that the registration of F.I.R. No.720 of 1998, dated 6‑7‑1998, Police Station Saddar, Gujranwala against petitioners Nos.3 and 6; F.I.R. No.288 of 1998, dated 5‑8‑1998 Police Station Wahndo, Gujranwala against petitioners Nos.4 and 7 and F.I.R. No.379 of 1998, dated 6‑8‑1998 Police Station Gujranwala Cantt. against petitioners Nos.5 and 8 be declared illegal and without lawful authority, and any proceedings taken pursuant thereto be quashed.
This petition has been resisted by the respondents.
The District Magistrate, Gujranwala and the Secretary, Home Department, Government of the Punjab, Lahore, respondents Nos. l and 4, took up the stand in the comments and report that the impugned orders under section 144 of the Code of Criminal ProceduFe were passed for the security of bank officials/employees and the public‑at‑large to avoid any untowards incident of dacoity/disruption/looting etc. Keeping in view the prevailing law and order situation in the country while the bank dacoities had occurred, they took the stand that no harassment was created to the bank employees due to the promulgation of impugned orders. In the comments and reports, the respondents Nos.2 and 3 took the stand that they acted on the basis of the issuance of the impugned orders under section 144 of the Code of Criminal Procedure.
This writ petition stands admitted. The comments are treated as the written statements.
I have heard the learned counsel for the petitioners as well as Ms. Roshan Ara, Assistant Advocate‑General for the respondents. The main contentions of the learned counsel for the petitioners are that the impugned orders passed under section 144 of the Code of Criminal Procedure were devoid of factual and legal considerations as there were no instances of urgent cases of nuisance or apprehended danger, that the impugned orders were violative of the legislative intent as the temporary order for two months' duration could not be made till the permanent remedial measures, that the District Magistrate, Gujranwala, had no authority to pass the impugned orders containing the instructions to the Banks which under the Banking Companies Act, 1962 are under the general superintendence .and control of the State Bank of Pakistan, that the police malafidely abused and misused the impugned orders who illegally harassed, intimidated and maltreated the petitioners, that the impugned orders were passed ex parte in a mechanical order and that the registration of the F.I.Rs. based on alleged violation of the impugned orders are liable to be quashed being illegal and void. On the contrary, the learned Assistant Advocate‑General expressed her inability to support the version of the respondents by expressing that the same have been passed in a mechanical order and the security measures were already being adopted by the bank authorities. However, she added that due to lapse of sufficient period, the writ petition has become infructuous especially when there is no grievance available to the petitioners. I would express that the reasoning adopted by the learned counsel for the petitioners has to prevail. I hold the view that it is a case of public interest litigation and it is necessary that this dispute is determined to its logical end. Further the F.I.Rs. desired and required to be quashed are still holding the water and the fate of the same is also based on the validity of the impugned orders passed under section 144 of the Code of Criminal Procedure.
It is proper to reproduce section 144 of the Code of Criminal Procedure as under:‑‑

" 144. Power to issue order absolute at once in urgent cases of nuisance or apprehended danger.‑‑‑ (1) In cases where, in the opinion of a District Magistrate, Sub‑Divisional Magistrate, or of any other (Executive Magistrate), specially empowered by the Provincial Government or the District Magistrate to act under this section, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of 5the case and served in manner provided by section 143, direct any person to abstain from a certain act or take certain order with certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury; to any person lawfully employed, or danger to human life, health 'or safety, or a disturbance of the public tranquility, or a riot, or an affray.

(2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed, ex parte.

(3) An order under this section may be directed to a particular individual, or‑to the public generally when frequenting or visiting a particular place.

(4) Any Magistrate may either of his own motion or on the application of any person aggrieved, rescind or alter any order made under this section by himself or any Magistrate subordinate to him, or by his predecessor‑in‑office.

(5) Where, such an application is received; the Magistrate shall afford to the applicant an early opportunity of appearing before him either in person or by pleader and showing cause against the orders; and if the Magistrate rejects the application wholly or in part, he shall record in writing his reasons for so doing.

(6) No order under this section shall remain in force for more than two months from the making thereof, unless in cases of danger to human life, health or safety, o: a likelihood of a riot or an affray, the Provincial Government, by notification in the official Gazette, otherwise directs."

First of all relying Hakim Khan and others v. The State PLJ 1990 Cr.C. (Pesh.) 596 (DB) and Gulab Din and others v. The Azad Jammu and. Kashmir Government PLD 1960 Azad J&K 51 1 have to express the view that an order under section 144 of the Code of Criminal Procedure has got to be in the form of an injunction asking a person to obstain from a certain act and not to be in the form of a mandatory injunction to do a certain act. In the instant matter perusal of the impugned orders had made out that mandatory injunction was issued to do the certain act mentioned therein and the impugned orders could not remain in the field even though the time has elapsed.
Perusal of section 144 of the Code of Criminal Procedure has made out that the order thereunder can only be passed in urgent cases of "nuisance or apprehended danger". There is nothing on record to establish the exact aforesaid condition in the instant matter as respondents did not bring on record any material in this regard. Without the presence of sufficient ground for proceedings under section 144 of the Code of Criminal Procedure and immediate provision of speedy remedy, the order under section 144 of the Code of Criminal Procedure could not be passed.
The aforesaid three consecutive orders have been impugned by the petitioners. According to the dictum enunciated in Ram Narain Sah and another v. Parmeshar Parsad Sah and.others AIR (29) 1942 Pat. 414, the Magistrate has no jurisdiction to make an order for the renewal of the original order under section 144 of the Code of Criminal Procedure and it is not open to him to evade subsection (6) of section 144 of the Code of Criminal Procedure by repeating the order under section 144 of the Code of Criminal Procedure. It is a case of violation of mandatory provision of section 144(6) of the Code of Criminal Procedure as the District Magistrate proceeded in the matter continuously for three times and his action in the matter cannot be approved being violative of the aforesaid law. In this respect, the reliance is placed on Niaz Muhammad and 10 others v. The District Magistrate, Bahawalpur PLD 1975 BJ 36 wherein it has specifically been held that the orders of similar nature successively made under section 144(1) of Criminal Procedure Code on short intervals are violative of provisions of section 144(6), Criminal Procedure Code and, therefore, illegal.
Learned counsel for the petitioners has referred to sections 41 and 42 of the Banking Companies Act, 1962 which relate to the powers of the State Bank of Pakistan to give directions and revolve around the further powers and function of the State Bank. According to him the directions to the Banking Companies are to be issued by the State Bank and that the District Magistrate has no concern in this regard who even cannot interfere in the matter on the ground of the worsening of the law and orders situation. In this regard he has referred to the report on Bank Security wherein direction about the removal of the problems of the instant nature of the Banks have been incorporated. The detailed instructions have already been issued which are workable which are not being incorporated in this judgment as aforesaid report is that of confidential nature. The duties of the Guards have also been specifically ‑ mentioned therein and the position of the Guards incorporated therein has been changed while issuing the orders under section 144 of the Code of Criminal Procedure by the District Magistrate, Gujranwala, respondent No.1. I would hold that the District Magistrate, Gujranwala has no jurisdiction to change the measures provided by the State Bank towards security of the Banks. Thus, it is a case of transgression of authority on the part of the District Magistrate, Gujranwala.
Last of all it can safely be held that the impugned orders have been mechanically passed. The admitted position is that the petitioners were not heard before passing the impugned order's who have been ‑ condemned unheard and have not been provided the chance to place instructions of the State Bank of Pakistan before the District Magistrate, Gujranwala. The petitioners were not the wrong‑doers and through the passing of the impugned orders they have been wronged which is not the intention of the issuance of the prohibitory order under section 144 of the Code of Criminal Procedure.
At this stage it is proper to refer to Act II of 1999 (Punjab Shops and Establishments (Security) Act, 1999) which is being reproduced as under in toto:‑‑

PUNJAB SHOPS AND ESTABLISHMENTS

(SECURITY) ACT, 1999

An Act to provide for the Security of

Shops and Establishments

[Gazette of Punjab, Extraordinary, 4th February, 1999]

No. Legis.2(37)/98/112, dated 4‑2‑1999.‑‑‑The Punjab Shops and Establishments (Security) Bill, 1999, having been passed by the Provincial Assembly of the Punjab on 28th January. 1999 and assented to by the Governor of the Punjab on 1st February, 1999, is hereby published as an Act of the Provincial Assembly of the Punjab.

Preamble. ‑‑‑Whereas it is expedient to provide for the security of shops and establishments;

It is hereby enacted as follows‑‑

(1) Short title and commencement.‑‑‑ (1) This Act may be called the Punjab Shops and Establishments (Security) Act, 1999.

(2) It shall come into force at once.

(2) Security of Establishments.‑‑‑ The Government may by order provide for the regulation of and enforcement of measures for the security of the property and persons connected with an Establishment.

Explanation.‑‑ In this Act 'Establishment' includes‑‑

(i) a bank, a money changer or a financial institution; and

(ii) any office, firm, company, institution, industrial unit, undertaking, shop or premises which undertakes any business, trade, manufacture calling service employment or occupation.

(3) Penalties.‑‑‑ If any person contravenes any order made under this Act he shall be punished with imprisonment which may extend to one month or with fine which may extend to fifteen thousand rupees or with both and if the offence continues the Establishment may be kept sealed till such time the order is complied with.

(4) Rules.‑‑‑ The Government may make rules to give effect to the provisions of this Act.

(5) Repeal.‑‑‑ The Punjab Shops and Establishments (Security) Ordinance, 1999 (11 of 1999) is hereby repealed. "

I express my full agreement with the learned counsel for the petitioners who canvassed before‑ me that the promulgation of the aforesaid new codified law has made out that the Government was itself conscious that the impugned type of orders passed under section 144 of the Code of Criminal Procedure were/are illegal, without authority and unsustainable. The District Magistrate, Gujranwala cannot exercise the legislative powers through the issuance of impugned successive orders. I would further hold that the aforesaid Act No.II of 1999 is subject to the instructions of the State Bank of Pakistan which have been/are issued about the position of Guards and other workable conditions directed thereof in the smooth running of Banking Business by the Banks.
The conclusion which can be drawn from the aforesaid state of affairs and discussion would be that the impugned. successive orders, dated 17‑3‑1998, 9‑6‑1998 and 11‑8‑1998 passed by the District Magistrate, Gujranwala, respondent No. 1, under section 144 of the Code of Criminal Procedure are without lawful authority, illegal and of no legal effect. In consequence the registration of F.I.R. No.720, dated 6‑7‑1998 at Police Station Saddar, Gujranwala, against petitioners Nos.3 and 6, F.I.R. No.288, dated 5‑8‑1998 at Police Station Wahndo, District Gujranwala, against petitioners Nos.4 and 7 and F.I.R. No.379, dated 6‑8‑1998 at Police Station Gujranwala Cantt. against petitioners Nos.5 and 7 are also held to be illegal and without lawful authority. Consequently, the aforesaid F.I.Rs. and the proceedings taken pursuant thereto are quashed forthwith.
This writ petition is accepted with costs which stands disposed of in the aforesaid terms.

H.B.T./H‑8/L Petition accepted

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1551 #

2000 P Cr. L J 1570

[Lahore]

Before Zafar Pasha Chaudhry, J

GULZAR AHMAD‑‑‑Appellant

versus

THE STATE and 6 others‑‑‑Respondents

Criminal Appeal No. 16 of 1999, decided on 21 st March, 2000

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 337‑A(ii) & 337‑F(vi)/34‑‑‑Decision of cases together‑‑‑Case registered under Ss.337‑A(ii) & 337‑F(vi)/34, P.P.C.‑‑‑Co‑accused were sent up to face trial and Trial Court examined witnesses‑‑‑Application under 5.249‑A, Cr.P.C. by co‑accused‑‑‑Court acquitted all of the accused persons from charges against them‑‑‑Two cases were registered, one of these cases was counter‑case which had arisen out of the same F.I.R. wherein accused alongwith two co‑accused had been arrayed as accused persons‑‑‑Both cases having arisen out of one and the same incident and also the same F.I.R., rule of propriety and justice demanded that both should have been taken up together because prosecution version in one case was in defence in the other‑‑Trial Court had erred in taking up one case in absence of the other one whereas both cases should have been decided together and separate judgments had to be passed in each case‑‑‑Order whereby co‑accused stood acquitted, was set aside and cases were remanded for taking up both cases together and to pass proper judgment.

Ajmal Kamal for Appellant.

Basharat Ullah for Respondents.

Mirza Farooq Anwar for the State.

ORDER

Order, dated 21‑11‑1998 passed by Mr. Kabir Ahmed, Civil Judge/Judicial Magistrate Section. 30, Sohawa, District Jhelum has been assailed through the instant appeal. The case F.I.R. No.35, dated 23‑7‑1996, was registered against the accused under section 337‑A(ii)‑F(vi)/34, P.P.C. with Police Station Domali. The respondents were sent up to face .trial in the aforesaid Court who examined two witnesses, thereafter, the application under section 249‑A, Cr.P.C. was moved on behalf of respondents and learned Magistrate acquitted all the accused from the charges levelled against them.

Referring the facts of the case, the learned counsel for the appellant argued that in fact there are two cases, the other was the counter‑case which has arisen out of the same F.I.R., wherein Gulzar Ahmed alongwith his two co‑accused have been arrayed as accused persons. As both the cases have arisen out of one and the same incident and also the same F. I. R., therefore, the rule of propriety and justice demands that both should have been taken up together because prosecution version in one case is the defence in other. The learned trial Magistrate, as such has erred in taking up one case in absence of the other whereas both cases should have been decided together, Separate judgments, however, have to be passed in each case. The learned counsel for the appellant as such is aggrieved and prejudiced with the manner in which the matter has been disposed. The impugned order, dated 21‑11‑1998, whereby the respondents stand acquitted is set aside and the case is remanded to the learned Magistrate to take up both the cases together and thereafter to pass proper judgment. Before parting with this order, I would like to clarify that this order will not in any manner influence the learned Magistrate regarding respective merits of the cases. As regards, the respondents deserve acquittal or conviction the same will be determined on its own evidence, material or relevant merits. It has been prayed that some time may be specified so that both the cases be decided within the prescribed time. Prayer being reasonable is allowed. Both the cases may be concluded within four months w.e.f. receipt of this order.

H. B. T./G‑19/L Order accordingly.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1554 #

2000 P Cr. L J 1576

[Lahore]

Before Muhammad Naseem Chaudhri, J

Mst. ALLAH RAKHI‑‑‑Petitioner

versus

SENIOR SUPERINTENDENT OF POLICE, FAISALABAD and 3

others‑‑‑Respondents

Writ Petition No.4863 of 2000, heard on 25th April 2000.

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

‑‑‑‑S. 167‑‑‑Physical remand of accused‑‑‑Practice of police to make accused sit in police station without showing their arrest in case diary‑‑‑Common practice with police to take away accused from their houses and to make them sit in police station where they were insulted, humiliated and tortured‑‑Reasons for making accused persons sit in police station without showing their arrest in case diary and daily diary of police station identified.

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

‑‑‑‑S. 167‑‑‑Police Rules, 1934, Chap.XXV [Rr.25.1 to 25.58]‑‑‑Order for grant of physical remand of accused‑‑‑Essentials‑‑‑Order for grant of physical remand of accused must be passed with all seriousness keeping in view the relevant law‑‑‑Instructions about grant of remand to police custody incorporated in Chap. XXV of Police Rules, 1934 recorded.

‑‑‑‑S. 167‑‑‑Grant of physical remand off accused‑‑‑Territorial jurisdiction of Presiding Officer‑‑‑Provisions of S.167(2), Cr.P.C. had provided that matter about grant of physical remand was connected with territorial jurisdiction of Presiding Officer‑‑‑Physical remand of accused was to be granted either by Area Magistrate or in his absence by Duty Magistrate working at same place of posting‑‑‑Territorial jurisdiction had to be given supreme consideration to set the law in motion‑‑‑Cases under General Law or under Special Law like Prevention of Corruption Act, 1947 were to be treated alike‑‑‑Case could be registered at a place where occurrence had taken place and physical remand had to be granted by a Magistrate of that place where case under general law or special law had been registered.

Rana Muhammad Anwar for Petitioner.

Ms. Roshan Ara, Asstt. A.‑G. for Respondents.

Date of hearing: 25th April, 2000.

JUDGMENT

Mst. Allah Rakhi petitioner is the mother of one Munawar Hussain who is the accused of some criminal case and is said to have been arrested on 5‑3‑2000. She tried to get him released but her efforts remained futile.

Expressing that her son has been apprehended twenty days before who has not been produced before any Court of law and projecting her apprehension about the extra‑judicial killing of Munawar Hussain at the hands of the police, she filed this petition to get him declared as a detenu and to get him released. The comments were called for from the Senior Superintendent of police who expressed that Munawar Hussain was involved in a case of dacoity registered at F.I.R. No. 124 on 7‑3‑2000 under section 395/412/109, Pakistan Penal Code at Police Station Jhang Bazar, Faisalabad. The investigation of the case was transferred to the S.H.O. Police Station Garh District Faisalabad who showed the arrest of Munawar Hussain on 11‑4‑2000 in the aforesaid case and produced him before Mr. Ejaz Hassan Awan, Civil Judge 1st Class/Magistrate Section 30, Tandlianwala on 12‑4‑2000 who granted his physical remand and directed for his production before him on 17‑4‑2000.

On 17‑4‑2000 I directed the aforesaid Police Officer to produce Munawar Hussain accused before the learned Area Magistrate Police Station Jhang Bazar, Faisalabad to obtain his further physical remand. I brought to his notice the provisions of section 167(2) of the Code of Criminal Procedure. He produced the said accused before the learned Area Magistrate Police Station Jhang Bazar, Faisalabad and obtained his physical remand. Afterwards the physical remand was not granted and the order of his remittance to the judicial lock‑up was passed.
I called Mr. Ejaz Hassan Awan, Civil Judge 1st Class/Magistrate Section 30, Cr.P.C. Tandlianwala. District Faisalabad. As a part of his training in polite manner, I advised him and made him to understand the importance of section 167 of the Code of Criminal Procedure. Taking exception to the production of Munawar Hussain accused before Mr. Ejaz Hassan Awan, Civil Judge 1st Class/Magistrate Section 30, Cr.P.C. Tandlianwala I have thought it proper to give my views with respect to the dispute in hand.
The contention of Mst. Allah Rakhi that Munawar Hussain was taken away from her house on 5‑3‑2000 need not be brushed aside. It is a common practice with the police that the accused are taken away and are made to sit in the police station who are insulted, humiliated and tortured. I would express that the practice to make the accused persons sit in the police station without showing their arrest in the case diary and the daily diary of the police station is adopted for the following reasons:‑‑

(i) The effort is made to get more time for the investigation of the case by considering that the period of 15 days as mentioned in section 167(2) of the Code of Criminal Procedure is not sufficient to complete the investigation or the Magistrate may not grant that much time.

(ii) The parlays are made with the complainant party and the accused person(s) and the effort is made to grab the money as illegal gratification from the accused persons and in some cases even from the complainant according to the gravity of the case. In this regard even the accused are provided the chance to slip away and in sensational/gruesome cases are even facilitated to leave the country.

(iii) In some cases the accused are eliminated through extra judicial killings and members of the family are left in the lurch.

(iv) In case the arrest of the accused is shown in the Daily Diary of the Police Station and/or in the case diary, then the case has to be processed with by placing the same before the Area Magistrate who may grant the physical remand/Judicial remand or discharge the accused at the time of production before him. The F.I.R. has to be got cancelled through the agency of the competent Court in case of submission of challan. It means that the arrest of the accused is not shown to avoid the maintenance of rule of law as the effort to eclipse the legal indulgence of the competent Court is required, desired and made by the Police Officer(s).

(v) The influential persons like political figures, big Zamindars and relatives of the police and other Executive Officers get apprehended their adversaries, rich or poor, to be kept as detenus for show down and also projection of their influence in the area with the help of S.H.O. and his subordinates so that nobody dares question their supermacy. The detenus are got tortured, insulted and humiliated.

It is proper stage to reproduce as under the provisions of section 167 of the Code of Criminal Procedure for the sake of proper appreciation of the dispute:‑‑

"Section 167 of the Code of Criminal Procedure, 1898.

Procedure when investigation cannot be completed in twenty‑four hours.‑‑‑ (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty‑four hours fixed by section 61, and there are grounds for believing that the accusative or information is well‑founded, the Officer‑in‑Incharge of the police station (or the Police Officer making the investigation if he is not below the rank of Sub‑Inspector) shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrates.

Explanation.‑‑ For the purpose of this section, in the cases triable by the Executive Magistrate, the expression nearest Magistrate' means the Executive Magistrate and in all . other cases the Judicial Magistrate.

(2) The Magistrate to whom an accused person is forwarded under this section may whether he has or has not jurisdiction to try the case or (send) it for trial; and consider further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.

(Provided that no Magistrate of the third class, and no Magistrate of the second class not specially empowered in this behalf by the (Provincial Government) shall authorise detention in the custody of the police).

(3) Magistrate authorising under this section detention in the custody of the police shall record his reason for so doing.

(4) The Magistrate giving such order shall forward a copy of his order, with his reasons for making it, to the Sessions Judge.

(5) Notwithstanding anything contained in sections 60 and 61 or herinbefore to the contrary, where the accused forwarded under subsection (2) is a female, the Magistrate shall not except in the cases involving Qatl or dacoity supported by reasons to be recorded in writing, authorise the detention of the accused in police custody, and the Police Officer making an investigation shall interrogate the accused referred to in subsection (1) in the prison in the presence of an officer of jail and a female Police Officer.

(6) The officer incharge of the prison shall make appropriate arrangements for the admission of the Investigating Police Officer into the prison for the purpose of interrogating the accused.

(7) If for the purpose of investigation, it is necessary that the accused referred to in subsection (1) be taken out of the prison, the Officer Incharge of the police station or the Police Officer making investigation, not below the rank of Sub‑Inspector, shall apply to the Magistrate in that behalf and the Magistrate may, for the reasons to be recorded in writing, permit taking of accused out of the prison in the company of a female Police Officer appointed by the Magistrate;

Provided that the accused shall not be kept out of the prison while in the custody of the police between sunset and sunrise."

A perusal of subsection (2) of section 167 of the Code of Criminal Procedure has made out that the accused person can either be produced before the learned Area Magistrate or before the Duty Magistrate. Even if Munawar Hussain was arrested on 11‑4‑2000 by the S.H.O. within the area of Police Station Garh he was bound to produce him before the learned Area Magistrate and in his absence before the Duty Magistrate to obtain his physical remand. It is simply surprising that Mr. Ejaz Hassan Awan, Civil Judge 1st Class/Magistrate Section 30, Cr.P.C. granted the physical remand of Munawar Hussain accused on 12‑4‑2000 and still directed the Police Officer to produce before him on 17‑4‑2000 while he was not competent in the matter. Under section 167(4) of the Code of Criminal Procedure a copy of the order granting the physical remand has to be sent by the Area Magistrate to the Sessions Judge which in the instant matter was not sent To meet such a situation a copy is to be sent to the Sessions Judge, who has to go through the same and if found proper he can suo motu revise such an order under section 439‑A of the Code of Criminal Procedure. It is known to all that the main reason for the separation of Executive and Judiciary was the fact that the remands were not properly granted by the Executive Magistrates and sometimes the bail applications were not attended to seriously. I would express that if the same type of working is adopted, it would 'lay the foundation of injustice in the subordinate Courts. As such an order for the grant of physical remand must be passed with all the seriousness keeping in view the law of the land.
I deem it proper to reproduce as under the Instructions about the grant of remand to police custody incorporated in Chapter XXV of Police Rules, 1934:‑‑

.Investigation

Appendix No.25.56(1)

(1) Before making an order of remand to police custody under section 167 of the Code of Criminal Procedure, the Magistrate should satisfy himself that‑‑

(1) there are grounds for believing that the accusation against the person sent up by the police is well‑founded.

(2) there are good and sufficient reasons for remanding the accused to police custody instead of detaining him in Magisterial custody.

In order to form an opinion as to the necessity or otherwise of the remand applied for by the police, the Magistrate should ascertain what previous similar orders (if any) have been ,made in the case, and the longer the accused person has been in custody the stronger should be the grounds required for a further remand to police custody.

The accused person must always be produced before the Magistrate when a remand is asked for.

(2) The following principles are laid down for the guidance of Magistrates in the matter of granting remands, and District Magistrates are required to see that they are carefully applied‑‑

(i) Under no circumstances should an accused person be remanded to police custody unless it is made clear that his presence is actually needed in order to serve some important and specific purpose connected with the completion of enquiry. A general statement by the officer applying for the remand that the accused may be able to give further information should not be accepted.

(ii) When an accused person is remanded to police custody the period of the remand should be as short as possible.

(iiii) In all ordinary cases in which time is required by the police to complete the enquiry, the accused person should be detained in Magisterial custody.

(iv) Whether the object of the remand is merely the verification of the prisoner's statement, he should be remanded to Magisterial custody.

(v) A prisoner, who has been produced for the purpose of making a confession and who has declined to do so, or has made a statement which is unsatisfactory from the point of view of the prosecution, should in no circumstances be remanded to police custody.

(3) In any case when an accused person is remanded to police custody, the reasons must be recorded in the order of remand, the Magistrate must at once send a copy of his order, with his reasons for making it, to the Sessions Judge to whom he is immediately subordinate.

If the limit of 15 days has elapsed, and there is still need for further investigation by the police, the procedure to be adopted is that laid down in section 344, Criminal Procedure Code. The case is brought on to the Magistrate's file, and the accused if detention is necessary, will remain in Magisterial custody. The case may be postponed or adjourned from time to time for periods of not more than 15 days each, and as each adjournment expires the accused must be produced before the Magistrate, and the order of adjournment must show good reasons for making the order."

At this stage I am tempted to express that section 167(2) of the Code of Criminal Procedure provides that the matter about the grant of physical remand is connected with the territorial jurisdiction of the Presiding Officer. A perusal of the said section has made out that either the physical remand is granted by the Area Magistrate or in his absence by the Duty Magistrate working at the same place of posting. However, the efforts are made to get the physical remand from different places as well. Writ Petition No.2453 of 1999 titled as Shakeel Ahmad v. The State was taken up by me at Multan Bench of this Court wherein it was noticed that about the offence committed at Layyah the physical remand was obtained from the Court of a learned Magistrate 1st Class at Lahore. That was on the ground that the Directorate of Anti‑Corruption Establishment was located at Lahore. I did not agree with the working of the Anti‑Corruption Establishment, Lahore as well as the learned Magistrate 1st Class, Lahore. According to section 5(2) of the Code of Criminal Procedure all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into, trying or otherwise dealing with such offences. To set the law in motion the territorial jurisdiction has to steel the eminence. The cases under the General Law or under the Special Law like the Prevention of Corruption Act, 1947 are to be treated alike. The case can be registered at a place where the occurrence has taken place and the physical remand has to be granted by a Magistrate of that place the case under the General Law or the Special Law has been registered. I would advise the learned Magistrates working in the subordinate Courts to show vigilance and the skill of their experience while granting the physical remand of the accused person.
Mr. Ejaz Hassan Awan, Civil Judge 1st Class/Magistrate Section 30, Ct.P.C., Tandlianwala assured that he would remain careful in future and I have confidence in him keeping in view the mode of his appearance before me.
There is no need to further process with this petition which stands disposed of in the aforesaid terms.

H.B.T./A‑59/L Order accordingly.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1570 #

2000 P Cr. L J 1592

[Lahore]

Before Iftikhar Hussain Chaudhry and Zafar Pasha Chaudhry, JJ

WARIS ALI and 3 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos.3161/B and 3656/BC of 1998 and 2175/BC of 1999, decided on 30th March, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/324/452/436/148/149‑‑‑Bail, grant of‑‑‑Accused persons formed themselves into an unlawful assembly and thereafter, arming themselves with deadly weapons, launched a planned and premeditated attack‑‑‑Four persons were murdered and two had received serious injuries as a result of their aggression‑‑‑Accused persons acted in extremely brutal and desperate manner and not only they committed murders, but also set the house of victim on fire after pushing one of the deceased into that house which created terror and panic in the area‑‑‑Accused persons, who remained fugitive from law, were specifically named in F.I.R. and they acted in prosecution of their common object of committing murder and arson‑‑Accused, who had prayed for grant of bail on ground of statutory delay, could be extended concession of bail on that ground only if their case was covered by third proviso to S.497, Cr.P.C. but said third proviso had been qualified by fourth proviso to S.497, Cr.P.C. according to which accused was not entitled to concession of bail if he was previous convict, habitual offender or was hardened, desperate or .dangerous criminal or involved in terrorism‑‑‑Manner in which offence was committed, accused had been proved to be dangerous and desperate persons‑‑‑Accused in circumstances were not entitled to bail.

S.N. Kanwar Khan for Petitioners.

Shah Ahmad Khan Baloch for the Complainant.

Ikram Nasir for the State.

ORDER

This order will dispose of Criminal Miscellaneous No.3161/B of 1998, moved on behalf of Waris, Sarfraz, Boota and Nasir, Criminal Miscellaneous No.2175/BC of 1999 moved against Iqbal Hussain and suo Motu Criminal Miscellaneous No.3656/BC of 1998 initiated against Muhammad Nawaz and Pervaiz.

All these accused stand involved in case F:I.R. No.13, dated 12‑1‑1996 registered with Police Station Sadar Nankana, District Sheikhupura, on the statement of one Muhammad son of Wahab.
Briefly the prosecution case is that on 12‑1‑1996 the complainant alongwith his son\ Bashir Ahmad and Mian Hakim Ali was cutting fodder when five accused persons namely Kalb‑e‑Hussain, Tayyab, Nawaz, Nasir and Naseer emerged there. They were all armed with fire‑arms and caused injuries on the person of Sohawa, his son Sharif and Nazra. Thereafter, all the aforesaid accused persons resorted to indiscriminate firing. In the meanwhile, Mulazim Hussain, Iqbal Hussain, Waris, Sarfraz, Muhammad Ali., Boota, Pervaiz, Yousaf and Khizar Hayat all armed with fire‑arms also reached the place of occurrence raising Lalkaras and caused injuries on the person of Willayat and Yasin. Waris, Muhammad Ali, Boota and Yousaf caught hold of Wilayat injured and threw him in a room packed with Parali and chaff and set the same on fire. Willayat, Sohawa and Sharif succumbed to the injuries. The accused persons committed murder of four persons and caused fire‑arm injuries to two persons, as such six persons from complainant side fell victim to their aggression. All the accused persons have been specifically named in the F.I.R. The arms carried by them have also been specified and their roles being members of the unlawful assembly have also been prescribed. The motive was stated to be that Irshad etc. had a quarrel with Mulazim over a piece of land about 3/4 months prior to the occurrence but on the intervention of the respectables, the dispute was patched up but the accused persons did not accept the same and retained the grudge. As a result of which they committed the aforesaid aggression resulting in death of four persons and injuries on the person of two. Waris, Boota, Sarfraz and Nasir petitioners in Criminal Miscellaneous No. 6151/13 of 1998 moved an application for grant of bail in the Court of Mr. Muhammad Mujahid Hussain, Judge, Special Court under Suppression of Terrorist Activities Act, 1975. The learned trial Judge vide his order, dated 3‑6‑1998 dismissed their application. Iqbal Hussain accused moved an application for bail on the ground of statutory delay which was accepted by the learned Special Judge vide his order, dated 16‑3‑1999 observing that he remained in the judicial lock‑up for more than three years as under‑trial prisoner and in view of the proviso to section 497, Cr.P.C. he was entitled to the concession of bail.
As described above the accused persons formed themselves into an unlawful assembly and thereafter, launched a planned and premeditated aggression while arming themselves with deadly weapons. As a result of their aggression four persons were murdered and two received serious injuries. The accused persons acted in extremely brutal and desperate manner, not only they committed murderous assault as a result of which they committed murders but also set the property on fire after pushing one of the deceased into Haveli before setting it to fire which obviously, created terror and panic in the area. The accused persons remained fugitive from law as well. Obviously, on merits none of the accused persons petitioners and the accused to whom show‑cause notice for cancellation of their bail has been issued deserve bail. All of them‑have been specifically named in the F.I.R. and they acted in prosecution of their common object of committing murders and arosen. Petitioners Waris, Sarfraz, Boota and Nasir who are in custody pray for grant of bail on the ground of statutory delay. The accused persons can be extended the concession of bail if their case is covered by third proviso to section 497, Cr.P.C. that trial could not conclude within a period of two years but the third proviso has subsequently. been qualified by the fourth proviso according to which an accused person is not entitled to the concession of bail if he is previous convict, habitual offender or who in the opinion of the Court is hardened, desperate or dangerous criminal or involved in terrorism. In the instant case the manner in which the offence is committed speak by itself that aforesaid petitioners as well as the three accused namely Nawaz, Iqbal Hussain and Pervaiz are dangerous and E3 desperate persons. They are not entitled to the concession extended by third proviso to section 497, Cr.P.C. We accordingly dismiss Criminal Miscellaneous No.3161/B of 1998 moved by Waris, Sarfraz, Boota and Nasir.
For the reasons recorded above, we are of the view that Nawaz and Pervaiz respondents in Suo Motu Criminal Miscellaneous No.3656/BC of 1998 and Iqbal Hussain respondent in Criminal Miscellaneous No.2175/BC of 1998 have been wrongly admitted to bail by the learned Special Judge. They do not deserve this concession, therefore, bail granted to them is hereby withdrawn and cancelled. The accused shall surrender, to be taken into custody forthwith.

H.B.T./W‑10/L Bail application dismissed.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1576 #

2000 P Cr. L J 1601

[Lahore]

Before Khawaja Muhammad Sharif, J

MUSHTAQ AHMAD‑‑‑Petitioner

Versus

MUHAMMAD AYUB and another‑‑‑Respondents

Criminal Miscellaneous No.3217/B of 1999, decided on 20th October, 1999

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), S.460‑‑‑Bail, cancellation of‑‑Bail was granted to accused on statutory ground that two years had lapsed, but case against accused had not been concluded‑‑‑Delay in conclusion of trial of case had not occasioned due to any fault on the part of prosecution, but was due to conduct of accused as he had been getting adjournments on ground to engage counsel to defend him‑‑‑Trial Court had passed two contradictory judgments, one whereby it granted bail to accused and other while dismissing bail application of his co‑accused‑‑‑Accused alongwith his co‑accused while armed with fire‑arm criminally trespassed into house. of complainant in the mid of night in order to commit dacoity‑‑‑Complainant was forced to accompany accused to house of brother of complainant where accused also stole some articles and caused death of brother of complainant‑‑Act of accused was of desperate nature and within category of hardened criminal within fourth proviso to S.497(1), Cr.P.C.‑‑‑Accused, in circumstances, was not entitled to bail‑‑‑Bail granted to accused was cancelled, in circumstances.

This is an application for cancellation of bail granted to respondent No. l by the learned Additional Sessions Judge, Sheikhupura on the statutory ground that two years had lapsed but the case could not be concluded.

Learned counsel for the petitioner submits that the delay in the conclusion of trial of the case of the respondent has not occasioned due to any fault on the part of the prosecution because respondent has been getting adjournments on the ground to engage a counsel to defend him. Learned counsel for the petitioner further submits that the same learned Additional Sessions Judge, on 10‑7‑1999 refused the bail to co‑accused of the respondent namely, Muhammad Aslam and passed a detailed order on 10‑7‑1999 while respondent was allowed bail on 5‑7‑1999. Learned counsel submits that case of the respondent is also covered by the fourth proviso of section 497(1) because respondent alongwith his co‑accused while armed with fire‑arms criminally trespassed into the house of first informant/complainant and then took him with him forcibly to the house of his brother from where they took a Dek and also caused fire‑arm injuries on the person of Muhammad Ilyas brother of the complainant who died later on. Learned counsel submits that act of the present respondent was of a desperate nature and falls within the category of hardened criminal and he was not entitled to any such concession. Learned counsel lastly, submits that two contradictory judgments have been passed by the learned Sessions Judge, one while granting bail to the respondent and the other while dismissing bail application of his co‑accused Muhammad Aslam.
On the other hand learned counsel for the respondent submits that respondent was allowed bail on the statutory ground and the order of the learned Additional Sessions Judge in this regard is legal one and is fully defendable. He further submits that there is no fault on his part in the conclusion of the trial.
Learned counsel for the State, on the other hand, submits that respondent had been getting adjournments on one pretext or the other in order to engage counsel for defending him before the trial Court and he supports the cancellation of his bail.
1 have heard the learned counsel for the petitioner and also the respondents and State. In January, 1999 on two occasions respondent had got adjournments in order to engage a counsel. Later on at some occasions when the witnesses were present then he also got adjournments in order to engage a A counsel. A bare perusal of the case would show that respondent alongwith his co‑accused while armed with fire‑arms criminally trespassed into the house of the complainant in the mid of the night in order to commit dacoity and thereafter, the complainant was forced and he was taken to the house of Muhammad Ilyas his real brother where they also stole some articles and also caused death of Muhammad Ilyas. The act of the respondent and his co-accused falls within the category of fourth proviso of section 497(1), Cr.P.C. Two contradictory orders have been passed by the learned Additional Sessions Judge, one while granting bail to the respondent and the other dismissing the bail application of his co‑accused Muhammad Aslam, on 10‑7‑1999. In this view of the matter, this petition is accepted, Gail already granted to the respondent Muhammad Ayub is hereby cancelled. He is in police custody. He shall be sent to judicial lock.
Learned trial Court is directed to appoint a State Counsel if the respondent has not engaged his counsel and to start the trial of the case with utmost expediency. Disposed of.

H.B.T./M‑157/L

Bail cancelled.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1592 #

2000 P Cr. L J 1605

[Lahore]

Before Zafar Pasha Chaudhry, J

NIAZ AHMAD‑‑‑Petitioner

Versus

KHALID NAWAZ and 2 others‑‑‑Respondents

Criminal Miscellaneous No.6744/BC of 1998, decided on 9th February, 1999.

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

‑‑‑Ss. 497(5) & 498‑‑‑Penal Code (XLV of 1860), S.302/109/34‑‑‑Pre‑arrest bail, cancellation of‑‑‑Allegation against co‑accused was that of abetment and Trial Court had admitted him to pre‑arrest bail extending him benefit of doubt holding that no sufficient material was on record to connect co‑accused with the commission of offence‑‑‑Bail granted to co‑accused could not be cancelled, in circumstances‑‑‑Trial Court, however, granted bail to accused despite holding that prima facie case existed against him as he was armed with pistol and held deceased into his clasp and that provisions of S.148/149, P.P.C. were applicable and that there was no occasion to admit accused to bail before arrest even if S.302/34, P.P.C. were not made applicable against him‑‑‑Trial Court, in circumstances, had misconstrued law and principle applicable to grant of pre‑arrest bail‑‑‑Bail allowed to accused was withdrawn, in circumstances.

1997 PCr.LJ 850 and PLJ 1979 SC 377 ref.

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

‑‑‑‑S. 498‑‑‑Pre‑arrest bail, grant of‑‑‑Principle‑‑‑Pre‑arrest bail was an extraordinary concession which was to be extended to accused who had been implicated falsely.

Hasnat Ahmad Khan for Petitioner.

Mian Abdul Qadoos for Respondents Nos. l and 2.

M. Aslam Malik for the State.

ORDER

Through this petition cancellation of bail granted to Khalid Nawaz and Muhammad Bakhsh, respondents Nos. l and 2, respectively, is sought.

As regards Muhammad Bakhsh respondent, the allegation against him is that of conspiracy and abetment in the commission of offence. The learned Additional Sessions Judge has placed reliance on two cases namely 1997 PCr. LJ 850 and PLJ 1979 SC 377 wherein it was observed that section 109, P.P.C. was repugnant to Injunctions of Islam. The learned Additional Sessions Judge has not properly interpreted the law laid down, as such he fell in error to allow pre‑arrest bail to Muhammad Bakhsh. Without making any comments on the legal aspect of the case, suffice it to say that the allegation against him is that of abetment and according to the learned Additional Sessions Judge, there was no sufficient material to connect him with the commission of the offence, therefore, by extending benefit of doubt, he was admitted to pre‑arrest bail. I am not inclined to interfere with the order. As such, this application to the extent of Muhammad Bakhsh respondent is dismissed.
However, the case of Khalid Nawaz alias Saqi respondent is different. The learned Additional Sessions Judge has himself observed that even if section 302/34, P.P.C. is not made applicable against him, he would be guilty under section 148/149, P.P.C. as according to the prosecution, he was armed with pistol and had taken the deceased in his clasp. After observing the same, he proceeded to admit him to bail before arrest. Pre‑1 arrest bail is an extraordinary concession which is to be extended to aril accused person who has been implicated falsely. If it was observed by the learned Additional Sessions Judge that there was prima facie case against respondent and he held the deceased into clasp and provisions of section 148/149, P.P.C. were applicable, there was no occasion to admit him to bail before arrest. I am, therefore, of the view that the learned Additional Sessions Judge has misconstrued the law and the principles applicable to C grant of pre‑arrest bail. I am, therefore, constrained to withdraw the bail allowed to Khalid Nawaz respondent. He will surrender himself before the police. However, this order will not preclude him from moving for grant of bail after arrest.
The petition is disposed of with the above observations.

H.B.T./N‑20/L

Order accordingly.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1601 #

2000 P Cr. L J 1644

[Lahore]

Before Muhammad Naseem Chaudhri, J

Sheikh ANWAR-UL-HAQ---Appellant

versus;

DEPUTY INSPECTOR-GENERAL OF POLICE, LAHORE RANGE, LAHORE and 2 others---Respondents

Writ Petition No 23240 of 1999, decided on 18th April, 2000.

(a) Drugs Act (XXXI of 1976)

----Ss. 11, 22, 23, 27 & 30---Criminal Procedure Code (V of 1898), S.561-A---Sale of drug after its expiry date---Allegation against accused was that he sold medicine after its expiry date---Alleged offence prima facie fell under S.23(1)(vi) of Drugs Act, 1976, punishment for which as provided under S.27(4) of the said Act was five years' imprisonment and fine--Offence was non-cognizable in view of S.30(2) of the Act and under S.30(3), same was triable by Drug Court---Registration of case against accused at the direction of Assistant Commissioner and raid conducted at medical store of the accused by Assistant Commissioner alongwith Executive Magistrate and investigation by Police as well as submission of challan, was devoid of legal authority and without jurisdiction.

Jamil Ahmad Khan and others v. Assistant Commissioner and others 19904PCr.LJ 1475; Shuja Ullah v. The State and others 1994 PCr.LJ 1065 and State v. M.N. Huda and 8 others 19 .I,-.T Note 6 at p.4 ref.

(b) Drugs Act (XXXI of 1976)---

----Ss. 11, 22, 23 & 30---Drugs Rules, 1988, R. 4---Sale of drug after its expiry date---" Spurious drug" ---Definition of "spurious drug" had made out that in every eventuality and at any cost, drug had to be sent for analysis and without the protocol of Government Analyst and his report, category and quality of drug being genuine, or spurious could not be determined---Report of Government Analyst had to be obtained within specific period if drug was referred to him after seizure for examination within specified period---Report had to be placed under S. 22(3)(b) of Drugs Act 1976, before Quality Control Board and scrutinized under S.11(5)(b) of the Act---Drug Inspector under R.4 of Drug Rules, 1988 would place matter before Quality Control Board which would issue a show-cause notice to the accused---After hearing accused the matter could either be dropped or could be initiated by Drug Inspector before Drug Court---Offences under Drugs Act, 1976 could not be established without initial report of Government Analyst---Prosecution could not be instituted except by a Federal Inspector or by a Provincial Inspector as `provided under S.30(1) of Drugs Act, 1976.

----"Scrutinize" and `scrutiny"---Meaning and scope---"Secrutinize" would mean "look closely at, examine in detail"---Scrutiny" would mean "critical glance, close investigation, examination in details".

Shuja Ullah v. The State and others 1994 PCr.LJ 1065 ref.,-

(d) Drugs Act (XXXI of 1976)---

----Ss. 11, 18, 23, 27 & 30---Sale of drug after its expiry date ---Procedure--Irrespective of case being cognizable or non-cognizable, Provincial Drug Inspector had to make a report to Quality Control Board as and when there was any contravention of Drugs Act, 1976 and only on such reference of the case to the Board and orders of the Board as to the action to be taken in respect of such contravention, Provincial Inspector could proceed to take action including registration of case---Without specific instruction of the Board, Provincial Inspector could not get registered a case even if it pertained to cognizable offence---Provincial Inspector could not file a complaint with regard to cognizable/non-cognizable offence under Drug Act, 1976 unless same pertained to the class of cases specified by the Board as such.

(e) Maxim----

----"A communi observantia non est recedendum"---Meaning and scope--Meanings of the maxim are that "where a thing is provided to be done in a particular manner, it has to be done in that manner and if not so done, same would not be lawful---Where power was given to do certain thing in a certain way that must be done in that way or not at all and other methods of performance were necessarily forbidden.

(f) Interpretation of statutes-

---- Representation was not an adequate remedy specifically when no right of hearing was provided by statute with regard to said representation.

(g) Drugs Act (XXXI of 1976)---

----Ss. 11, 27 30-Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---No adequate remedy against action of Provincial Quality Control Board on basis of reference made by Drug Inspector, having been provided, Constitutional petition was only adequate remedy available to petitioner.

Khawaja Fawad Ibn-i-Zahoor for Petitioner.

Ms. Roshan Ara, Asstt. A.-G. for Respondents Nos. l and 2. Zafar Ali Bhatti for Respondent No.3.

Date of hearing: 16th February, 2000.

JUDGMENT

According to the version of Sh. Anwar-ul-Haq petitioner the facts giving. rise to this Writ Petition No.23240 of 1999 for the quashment of F.I.R No.692, dated 6-10-1998 registered at Police Station Chunian, District Kasur under section 27 of the Drugs Act, 1976 (hereafter called as the Act for brevity sake) at the instance of Bagh Ali complainant/respondent No.3 are as under:--

Muhammad Qazafi son of Bagh Ali complainant fell a victim to typhoid fever who was examined by the Medical Officer Tehsil Headquarter Hospital, Chunian, District Kasur on 2-9-1998. Dr. Arif Mahmood Medical Officer examined Muhammad Qazafi and issued the prescription. Maxipen injection was to be administered to the said patient which was purchased from Messrs Allah Din Medical Store, Chunian, District Kasur owned by Sh. Anwaar-ul-Haq and run by Sh. Muhammad Anwar, writ petitioner for an amount of Rs.26. The aforesaid injection was administered to the aforesaid patient who allegedly got the reaction. Muhammad Qazafi was got admitted in Emergency Ward of Tehsil Headquarter Hospital, Chunian, District Kasur who was saved. According to Bagh Ali complainant the Maxipen injection was sold after its expiry date as it was manufactured in the month of December,- 1995 and its expiry date was December, 1997. He submitted the application before the Assistant Commissioner, Chunian, District Kasur for the registration of a criminal case who produced the prescription issued by the Medical Officer,' voucher receipt and the empty phial of the injection. The complaint was sent to the S.H.O., Police Station Chuntan, District Kasur and the F.I.R. No.692 was registered on 6-10-1998 under section 27 of the Drugs Act, 1976. , 3. According to the writ petitioners on the date of submission of the complaint on 6-10-1998 and registration of the F.I.R. under section 27 of the Drug Act, 1976, the Assistant Commissioner, Chunian, District Kasur alongwith the Resident Magistrate, Chunian and the police officials raided his Medical Store and conducted thorough checking of drugs and medicines lying in the shop, but no expired drug, whatsoever, was recovered therefrom when he was intimated about the lodging of the complaint. According to him the registration of the case was held as false and concocted by two superior Police Officers and it was also expressed that the offence is non-cognizable. However, on the report of the Deputy Superintendent of Police (Legal) Lahore, the Deputy Inspector-General of Police, Lahore Range, Lahore is said to have directed the local police to reinvestigate the case and submit the challan.
This petition for the quashment of the aforesaid F.I.R. has been filed on the ground that the alleged offence prima facie falls under section 23(1)(vi) of the Act, the punishment for which is provided under subsection (4) of section 27 of the Act and that in view of the provisions of section 30(2) of the Act the offence is non-cognizable which under section 30(3) of the Act is triable by a learned Drug Court and no permission to take cognizance and investigate the same has been obtained from the learned Drug Court. They averred that criminal proceedings under the Act including the registration of F.I.R. and investigation were conducted without permission of the Provincial Quality Control Board (hereinafter called as Board for brevity sake) set up under section 11 of the Act and that the F. I. R. required and desired to be quashed is absolutely without jurisdiction, concocted and based on mala fides. , 5. The comments have been submitted wherein the facts mentioned by the writ petitioner have been admitted and it has been prayed that the writ petition may be disposed of on merits.

6.. This writ petition has been admitted for regular hearing. I have heard the learned counsel for the parties and Ms. Roshan Ara, Assistant Advocate-General Punjab, Lahore. Learned counsel for the petitioner relied on Jamil Ahmad Khan and others v. Assistant Commissioner and others 1990 PCr.LJ 1475 and argued that the sale of drug after expiry of date was noncognizable keeping in view sections 23(1)(vi)/27(2)(b) and 30(2) of the Act which exclusively being triable by the learned Drug Court, no Magistrate was competent to initiate the criminal proceedings and to hold the trial about which no F.I.R. could be got registered at the Local Police Station and that the processing of the matter by the local Police was without jurisdiction and devoid of any authority legally vested in them. He also referred to Shuja Ullah v. The State and others 1994 PCr.LJ 1065 Pesh. wherein it has been held that irrespective of the case being cognizable or non-cognizable the Drug Inspector has to make a report to the Board in case of contravention of the Act and on the specific order of the Board as to the action to be taken the Inspector can proceed to take the action including registration of a case. He added that the registration of the case at the direction of the Assistant Commissioner, Chunian, the raid conducted at his Medical Store by the Assistant Commissioner alongwith the Executive Magistrate and the investigation by the police as well as submissions of the challan is devoid of legal authority, without jurisdiction and illegal. On the contrary learned Assistant Advocate-General and the learned counsel for Bagh Ali respondent No.3 relied on State v. M.N. Huda and eight others 1979 PCr.LT Note 6 at p.4, passed by the learned Drug Court, Karachi and argued that the case could be registered without the intervention of the Drug Inspector and the Board and that the writ petition is liable to be dismissed.

At this stage I would express that it is a case of public interest litigation and requires the deeper dissection and analysis by this Court for the maintenance of balance in the social set-up. In order to test the accuracy of these submissions it is necessary to refer to the relevant provisions of the Drugs Act, 1976. The relevant provisions of law with respect to the initiation of the criminal proceedings are contained in sections 11, 17, to 19, 22, 23, 27 and 30 which are reproduced as under with amendments for the sake of convenience:--

Section 11. Provincial Quality Control Board.--- (1) Each Provincial Government shall set up Provincial Quality Control Board consisting' of such members including a Chairman, as that Government may appoint from time to time.

(2) The Chairman and other members of the Provincial Quality Control Board shall hold office during the pleasure of the Provincial Government, on such terms and conditions as that Government may determine.

(3) The Provincial. Government shall appoint a person to be the Secretary of the Provincial Quality Control Board and provide the Board with such staff as the Provincial Government may consider necessary.

(4) The Provincial Quality Control Board shall make regulations to regulate the conduct of its business.

(5) The following shall be the powers and functions of the Provincial Quality Control Board, namely:--

(a) to inspect any premises where any drug is being or is to be manufactured or sold and to recommend to the appropriate authority the cancellation or suspension of the licence to manufacture or sell drugs granted to any person who is found to be contravening, or to have contravened, any of the provisions of this Act, or the rules:

(b) to scrutinize the reports of Provincial Inspectors in respect of contraventions of this Act and reports of the Government Analysts in respect of drugs sent to them by the Provincial Inspectors test and analysis and issue instructions to the Inspectors as to the action to be taken on such reports:

Provided that the Provincial Quality Control Board may specify the class of cases in which a Provincial Inspector may make a complaint to the Drug Court, or take any other action, without the specific instructions of the Board;

(d) to advise the Provincial Government on ways and means to ensure quality control of drugs manufactured in the province.

(6) Provincial Quality Control Board may entrust any of its powers or functions under subsection (5) to anyone or more of its members.

Section 17. Inspectors.--- The Federal Government or a Provincial Government may, by notification in the official Gazette, appoint such persons as it thinks fit, having the prescribed qualifications, to be Federal Inspectors, or, as the case may be, Provincial Inspectors for the purposes of this Act within such local limits as it may assign to them respectively:

Provided that no person who has any financial interest in the manufacture, import, export or sale of any drug shall be appointed:

Provided further that a person serving under the Federal Government or an other Provincial Government shall not be so appointed without the previous consent of such Government.

Section 18. Powers of Inspectors.--- (1) Subject to the provisions of section 19 and of any rules made in this behalf, an Inspector may, within the local limits for which he is appointed, and in any other area within the permission of the licensing authority:

(a) inspect any premises wherein any drug is manufactured, the plant and process of manufacture, the means employed for standardising and testing the drugs and all relevant records and registers:

(b) inspect any premises wherein any drug is sold or is stocked or exhibited for sale or is distributed, the storage arrangements and all relevant- records and registers;

(c) take samples of any drug which is being manufactured or being sold or is stocked or exhibited for sale or is being distributed;

(d) enter and search, with such assistant, if any as he considers necessary, any building, vessel or place, in which he has reason to believe that an offence under this Act or any rules has been or is being committed or may continue to or is being committed or may continue to be committed; (e) call any person to be present as witness in the course of search or seizure or in connection with any other matter where the presence of witnesses is necessary;

(f) seize such drug and all materials used in the manufacture thereof and any other articles, including registers, cash memos., invoices and bills, which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act or any rules;

(g) require any person to appear before him at any reasonable time and place to give statement, assistance or information relating to or in connection with the investigation of an offence under this Act or the rules:

Provided that the exemptions under sections 132 and 133 of the Code of Civil Procedure, 1908 (Act V of 1908), shall be applicable to requisitions for attendance under this clause;

(h) lock and seal any factory, laboratory, shop, building, store-house or godown, or a part thereof, where any drug is or is being manufactured, stored, sold or exhibited for sale in contravention of any of the provisions of this Act or the rules:

(i) forbid for a reasonable period, not exceeding four weeks or such further period, which shall not be more than three months, as the Inspector may, with the approval of the Provincial Quality Control Board, the Central Licensing Board, the Registration Board, or the licensing authority, as the case may be, specify, any person incharge of any premises from removing or dispensing of any drug, article or other thing likely to be used in evidence of the commission of an offence under this Act or the rules; and

(j) exercise such other persons as may be necessary for carrying out the purposes of this Act or any rules:

Provided that the powers under clauses (f) to (j) shall be exercisable only by an Inspector specifically authorised in this behalf, by an order in writing, by the Government appointing him, subject to such conditions as may be specified in such order:

Provided further that the power under clause (h) may be exercised by an Inspector not authorised as aforesaid where the contravention is of a provision which requires a licence to be obtained for the manufacture, storage or sale of a drug.

(2) The provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), in so far as they are not inconsistent with the provisions of this Act, shall apply to searches and seizures made under this Act.

Section 19. Procedure for Inspectors.--- Where an Inspector seizes any drug or any other article under section 18, he shall tender a receipt, therefore, in the prescribed form.

(2) Where an Inspector takes a sample of a drug for the purpose of test or analysis, he shall intimate such purpose in writing in the prescribed form to the person from whom he takes it and, in the presence of such person unless lie wilfully absents himself, shall divide the sample into four portions and effectively seal and suitably mark the same and permit such person to add his own seal, if any, and mark to all or any of the portions so sealed and marked:

Provided that, where the sample is taken from premises whereon the drug is being manufactured, it shall be necessary to divide the sample into three portions only:

Provided, further that, where the drug i5 made up in containers of small volume, instead of dividing a sample as aforesaid, the Inspector may, and if the drug be such that it is likely to deteriorate or be otherwise damaged by exposure shall, take three or four, as the case may be, of the said containers after suitably marking the same, and, where necessary, sealing them

Provided further that if the contents of one container are insufficient for the laboratory test and analysis, the Inspector may increase the number of the containers in order to make the sample sufficient for his purpose.

(3) The Inspector shall restore one portion of a sample so divided or one container, as the case may be, to the person from whom he takes it, and shall retain the remainder and dispose of the same within forty eight hours as follows: ---

(i) one portion of sample he shall send to the Government Analyst concerned for test and analysis;

(ii) the second he shall send to the Chairman, Provincial Quality Control Board or the Central Licensing Board or the Registration Board as the case may be; and

(iii) the third, where taken, he shall send to the warrantor, if any, named under the proviso to subsection (3;) of section 32. '

(4) Where an Inspector seizes any drug. containing any filthy or putrid substance, worm, rodent, insect or any foreign matter which is visible to the naked eye, and the sample is such that it cannot or need not be divided, he shall effectively seal and suitably mark the same and permit the person from whom he seizes the drug to add his own seals, if any, and mark to it and shall produce the same before the Drug Court or the Central Licensing Board or the Registration Board, as the case may be, before which proceedings are instituted or action is initiated in respect of the drug.

(5) Where an Inspector takes any action under section 18, he shall, as soon as possible inform the Board concerned or its Chairman and take order as to the custody of the stocks of the drugs seized by him:

Provided that where a Federal Inspector is not competent to take action under section 30, he shall as soon as may be, report the matter and hand over the stock, if any, to the Provincial Inspector for further action under this Act.

(6) The Provincial Inspector on finding any contravention of this Act shall, unless the Board otherwise directs, always refer the case to the Provincial Quality Control Board and seek orders as to the action to be taken in respect of such contravention.

(7) The Federal Inspector on finding any contravention of this Act for which he is authorised shall, unless otherwise directed, always refer the case to the Central Licensing Board or the Registration Board of any other authority as may be specified for the purpose and seek any further orders _as to the action to be taken in respect of such contravention.

Section 22. Reports of Government analysts.--- (1) The Government Analyst to whom a sample of any drug has been submitted for test and analysis under subsection (3) of section 19 shall deliver to the Inspector submitting it a signed report in quadruplicate in the prescribed form and forward one copy thereto to the authority as may be prescribed.

(2) The Government Analyst, as far as may be, shall submit the report referred to in subsection (1) within sixty days of the receipt by him of the sample of the drug and, if he is not able to do so for reasons beyond his control. shall communicate the reasons to the Inspector in writing and shall endorse its copy to the Board concerned who shall have the sample tested from the same or any other Government Analyst or a Government Drug Testing Laboratory or any other Laboratory and shall ensure the receipt of results of such test and analysis within a further period as may be prescribed and shall make the test report available to the Inspector for further action.

(3) .On receipt of the report, the Inspector shall--

(a) deliver one copy thereof to the person from whom the sample was taken;

(b) forward one copy to the warrantor, if any, named under the proviso to subsection (3) of section 32;

(d) retain the fourth copy for use in any prosecution or for any other purpose.

(4) Notwithstanding anything contained in any other law for the time being in force, any document purporting to be a report signed by a Government Analyst shall be admissible as evidence of the facts stated therein without formal proof and such evidence shall be conclusive unless the person from whom the sample was taken or the said warrantor has, within seven days of the receipt of a copy of the report notified in writing to the Inspector of the Drug Court or, as the case may be, the Central Licensing Board or the Registration Board or the Provincial Quality Control Board or such other Authority as may be prescribed for this purpose before which any proceedings in respect of the sample are pending that he intends to adduce evidence in contravention of the report.

(5) Where a person has,. under subsection (4), notified his intention of adducing evidence in contravention of a Government Analyst's Report, the Drug Court or the Board concerned as the case may be, the Central Licensing Board, the Registration Board, the Provincial Quality Control Board or such other Authority as may be prescribed for this purpose may, of its own motion or in its discretion at the request either of the complainant or the accused, cause the sample of the drug lying with the Board concerned under subsection (3) of section 19 to be sent for test or analysis to the Federal Drug Laboratory or any other laboratory specified for the purpose by the Federal Government which shall make the test or analysis and report within thirty days of the receipt of the sample in writing signed by, or under the authority of the person for the time being incharge of the Federal Drug Laboratory, or as the case may be, such other laboratory, the result thereof and such report shall be conclusive evidence of the facts stated therein.

(6) The cost of a test or analysis made by the Federal Drug Laboratory or other laboratory under subsection (5) shall be paid by the complainant or accused as the Drug Court of the Board concerned shall direct.

Section 23 Import, manufacture and sale of drugs.--- (1) No person shall himself or by any other person on his behalf--

(a) export, import or manufacture for sale -or sell:

(i) any spurious drug;

(ii) any imitation product;

(iii) any misbranded drug;

(iv) any adulterated drug;

(v) any substandard drug;

(vi) any drug after its expiry date;

(vii) any drug which is not registered or is not in accordance with the conditions of registration;

(viii) any drug which, by means of any statement, design or device accompanying it or by any other means, purports or claims to cure or mitigate any such disease or ailment, or to have any such other effect, as may be, prescribed;

(ix) any drug if it is dangerous to health when used in the dosage or with the frequency, or, for the duration specified, recommended or suggested in the labelling thereof; or

(x) any drug in contravention of any of the provision of this Act or any rule;

(b) manufacture for sale any drug under, and in accordance with the conditions of a licence issued under this Act;

(d) import or export any drug the import or export of which is prohibited by or under this Act;

(e) import or export any drug for the import or export of which a licence is required, except under, and in accordance with the conditions of such, licence;

(f) supply an incorrect, incomplete or misleading information, when required to furnish any information under this Act, or the rules;

(g) peddle, hawk or offer for sale any drug in a park or public street or on a highway, footpath or public transport or conveyance;

(h) import, manufacture for sale, or sell any substance, or mixture of substances, which is not a drug but is presented in a form or a manner which is intended or likely to cause the public to believe it to be a drug;

(i) sell any drug 'without having a warranty in the prescribed form bearing the name and batch number of the drug issued--

(i) in the case of drug manufactured in Pakistan, by the manufacturer holding a valid licence to manufacture drug and permission to manufacture that drug or by his authorised agent;

(ii) in the case of at) imported drug, by the manufacturer or importer of that drug or, if the drug is imported through an indenter by such indenter;

(j) apply an incorrect batch number to a drug; and

(k) sell or import a drug above the maximum price fixed under this Act on which the drug shall be sold or imported.

(2) Nothing in subsection (1) shall apply to the manufacture or subject to prescribed conditions, of small quantities or any drug for the purpose of clinical trial examination, test, analysis or personal use.

Section 27 Penalties.-- (1) Whoever himself or by any other person on his behalf;

(a) exports, imports, manufactures for sale or sells any spurious drug or any drug which is not registered;

(b) manufactures for sale any drug without a licence; or

shall be punishable with imprisonment for a term which shall not be less than five years or more than ten years and with fine which may extend to five Lakh rupees;

(2) Whoever himself or by any other person on his behalf---

(a) imports, manufactures for sale or sells any imitation product; or

(b) gives to the purchaser a false warranty in respect of any drug sold by him that the dig does not in any way contravene the provisions of section 23 and is not able to prove , that, when he gave the warranty, he had good and sufficient reason to believe the same to be true; or

(c) applies or permit to be applied to any drug sold, or stocked or exhibited for sale, by him, whether on the container or a lable or in any other manner, a warranty given in respect of any other drug, or

(d) imports, manufactures for sales or sells any drug under a name other than the registered name; or

(e) exports, imports, manufactures for sale or sells any drug with which any substance, which should not actually be its component, has been mixed or packed so as to reduce its quality or strength or for which any such substance has been substituted wholly or in part;

shall be punishable with imprisonment for a term which may extend to seven years, and with fine which may extend to one Lakh rupees.

(3) Whoever obstructs an Inspector in the exercise of any power conferred upon him by or under this Act, or disobeys the lawful authority of any Inspector, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to ten thousand rupees, or with both.

(4) Subject to the provisions of subsection (1), subsection (2) and subsection (3), whoever himself or by any other person on his behalf contravenes any of the provisions of this Act or any rule shall be punishable with imprisonment for a term which may extend to five years, or with fine which may extend to fifty thousand rupees, or with both.

Section 30 Cognizance of offences.--- (1) Subject to the provisions of section 19, no prosecution shall be instituted under this Chapter

(a) by a Federal Inspector, where the prosecution is in respect of a contravention of clause (h) of subsection (1) of section 23 or section 24 or any of the provisions of this Act or the rules relating to the import or export of drugs or the manufacture for sale, or sale of a drug which is not for the time being registered or for the manufacture for sale of which a licence is not for the time being in force; or

(b) by a Provincial Inspector:

Provided that, where the public interest so requires, the Federal Inspector may, with the prior permission of the Federal Government, institute a prosecution for a contravention of any other provision of this Act.

(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898)---

(a) an offence punishable under this Chapter other than an offence mentioned in subsection (1) of section 27, shall be non-cognizable, and

(b) no Court other than a Drug Court shall try an offence punishable under this Chapter.

(3) Nothing contained in this Chapter shall be deemed to prevent any person from being prosecuted under any other law for any act or omission which constitutes an offence punishable under this Chapter or to require the transfer to a Drug Court of any case which may be pending in any Court immediately before the establishment of the Drug Court.

It would be proper to reproduce as under the definition of "spurious drug" contained in subsection (zb) of section (1) of the Act which means a drug:--

(i) which purports to be a drug but does not contain the active ingredient of that drug; or

(ii) which purports to be the product of a .manufacture, place or country of whom or of which it is not truly a product; or

(iii) which is imported or exported or sold or offered or exposed for sale under a particular name which actually it is another drug; or

(iv) the label of which bears the name of an individual or company purporting to be its manufacturer or producer which individual or company is fictitious or does not exist. "

Rules 3 and 4 of the Punjab Drugs Rules, 1988 are also reproduced as under for the proper appreciation of the dispute in hand:--

Punjab Drugs Rules, 1988

(3) Provincial Quality Control Board.--- (1) The Board shall consist of the following members, namely:--

(a) Secretary, Health Department, ex officio, who shall also be its Chairman;

(b) Additional Secretary (T), who will also act as Chairman in the absence of Secretary Health;

(d) One member from the Pharmacy profession who shall be at least graduate in Pharmacy to be nominated by the Provincial Government having no financial interest in pharmaceutical trade and industry;

(e) One Pharmacologist preferably Professor of Pharmacology to be nominated by the Provincial Government having no financial interest in the Pharmaceutical Trade Industry;

(f) One Professor of Medicine to be nominated by the Provincial Government having no financial interest in Pharmaceutical trade and industry;

(g) Secretary, Provincial Quality Control Board, who preferably shall be a Pharmacy graduate.

(2) The Board may coopt any other qualified expert having formal training and experience in the pharmaceutical field.

(3) The quorum to constitute a meeting of the Board shall be three including its Chairman.

(4) No act or proceeding of the Board shall be invalid merely on the ground of the existence of any vacancy in or any defect in the constitution of the Board.

(4) Function of the Board.--- (1) The Inspectors and the Government Analyst shall submit monthly returns in Form 1 and Form 2 respectively, to the Board and a summary on the overall situation of quality control in the area under their respective jurisdiction and the Board shall maintain such information so as to monitor the quality of all the drugs sold and to keep' watch on the performance of all manufacturers and the drugs sale licence holders.

(2) The Board shall, as far as possible, meet at least once a month and review the situation of the quality control of drugs on the whole including consideration of any specific point arising during the period on the working of various firms, drug testing laboratories and Inspectors.

(3) The Board shall examine the cases referred to it by any Inspector under the Act before directing him to prosecute such accused or recommending to the Licensing, Authority for cancellation or suspension of the licence; provided that no such action shall be taken without a show-cause notice to the accused.

(4) Before referring any case to the Drug Court, the Board shall ascertain the name of the Directors, partners and employees of the company, corporation, firms or institution who are prima facie responsible for the commission of the offence under the Act or the rules and allow an Inspector to institute prosecution only against such persons.

(5) The Board may, in view of minor contravention in its discretion, advise the accused to bring improvement, or if considered necessary, issue a warning to the accused and take any other action including recall of batches."

I would express that a perusal of section 30(2)(a) of the Act provides that the offences mentioned under section 27(1) are cognizable while all the other offences falling under the Act are non-cognizable. Clause (a) to subsection (1) of section 27 of the Act deals with the prohibitions (offences) contained in section 23(1)(a)(i)(vii); next clause (b) deals with the prohibitions (offences) narrated in section 23(1)(b)(c) and last clause (c) deals with prohibition (offence) mentioned in section 23(1)(e) of the Act. Both the aforesaid sections reproduced above, if gone through together, would make out that the sale of an expired medicine does not fall within the category of the offences which are cognizable. The relevant prohibition about the sale of expired drug is incorporated in section 23(1)(vi) of the Act which is non-cognizable offence. It is manifest from a bare reading of the F.I.R. required to be quashed that it was a case of sale of drug after its expiry date. The offence as made out in the F.I.R. being non-cognizable, the only course open to the local police under section 155 of the Code of Criminal Procedure was to have entered in the daily diary of the police station the substance of the information and referred the same to the learned Illaqa Magistrate. Under section 155(2) of the Code of Criminal Procedure no Police Officer has been authorised to investigate a non-cognizable case without the order of the learned Magistrate 1st Class or Second Class having power to try a case regarding the offence. However, under section 30(2)(b) of the Act, the case was exclusively triable by the learned Drug Court which has made out that no Magistrate of the First or Second Class under the Code of Criminal Procedure was competent to try the case and, thus, no order by such Magistrate could be passed authorising the police authorities to investigate the case. It is the proper stage to reply on the ruling printed as Jamil Ahmad Khan and another v. Assistant Commissioner and another 1990 PCr.LJ 1475 (Lahore) which is applicable in all four corners to the case in hand as the allegation of sale of drug after expiry of date under the Drugs Act, 1976 was held to be non-cognizable and the registration of the F.I.R. and investigation as well as further proceedings in pursuance thereof were declared to have been taken as without lawful authority and of no legal effect which were, accordingly, quashed.
At this stage, I would deal with the proposition as to whether a Drug Inspector can lodge the complaint before the Drug Court in a noncognizable offence and secondly whether in a cognizable offence the Drug Inspector or any other person from the public or Executive Authorities can report the matter to the police for the registration of First Information Report without the permission from the Provincial Quality Control Board. It would be proper to refer to sections 17, 18 and 30 of the Act for the proper disposal of this controversy. Section 17 provides for appointment of Drug Inspector; by the Federal Government as well as the Provincial Government. Section 18 deals with the powers of the Drug Inspectors. Clause (d) of subsection (1) of section 18 empowers a Drug Inspector to enter, search with such assistance as he considers necessary any building, vessel or place in which he has reason to believe that an offence under the said Act has been or is being committed. Clause (f) of the said subsection empowers a Drug Inspector to seize any drug or other article in respect of which he has reason to believe that the same may furnish information of the commission of offence under the Act. Section 19 lays down the procedure to be followed by a Drug Inspector when seizing a drug or other articles under the aforesaid section 18. By taking the sample of a drug he has to first intimate the persons from whom he is taking the drug, the purpose for which the sample is being taken. The Drug Inspector next/ is required to divide the sample into four portions on each of which he has not only to affix his seal or other suitable mark who also permits the person from whom the sample is taken to put his seal or mark thereon. He thereafter is required to give one portion of the sample to the person from whom he has taken the same, send one portion to the Government Analyst for test and analysis, send an other portion to the Chairman of the Provincial Quality Control Board or the Central Licensing Board or the Registration Board as the case may be and send the last portion to the Warrantor, if any, named under the proviso to section 32(3) of the Act. Section 19 further requires a Drug Inspector who has found any contravention of the said Act for which he is authorised to file a complaint to refer the case to the Provincial Quality Control Board or the Central Licensing Board or the Registration Board as the case may be and seek orders from such Board as to the action to be taken in respect of such contravention. So far as section 30(1) is concerned it provides that cognizance of an offence under the Act can only be taken upon the complaint of an appropriate Inspector by a Drug Court. The proposition with respect to the filing of the complaint for the commission of a non-cognizable offence is quite simple as the Drug Inspector has to proceed in the matter after referring the case to the Provincial Quality Control Board or the Central Licensing Board or the Registration Board as the case may be and it is after scrutiny by the Board of the material and report of the Government Analyst that the Board has to issue instructions to the Drug Inspectors as to the appropriate action to be taken on such report. Either the prosecution can be dropped or the prosecution case can be ordered to be launched. Thus, on the orders from such Board as the action to be taken in respect of such contravention that a complaint can be filed before the Drug Court which shall take cognizance of the same.
Now it is being considered as to whether in cognizable cases provided under section 30(2)(a) read with section 27(1) of the Drugs Act, 1976, the F.I.R. can directly be lodged by the Drug Inspector, District Magistrate or any other Magistrate and any Police Officer of any rank. It is proper to express that the Secretary, Provincial Quality Control Board has issued policy Letter No.SECY:(PQCB)1-13/98 Government of the Punjab, Health Department, dated 25-7-1998 on the subject of Registration of F.I.R. which is being reproduced as under in toto:--

Most urgent NO. SECY:(PQCB)1-13/98

GOVERNMENT OF THE PUNJAB, HEALTH DEPARTMENT

Dated Lahore, the 25-7-1998.

All the Provincial Inspectors of Drugs in the Punjab.

Subject: Registration of F.I.R.

I am directed to inform you that Provincial Quality Control Board, Punjab in its meeting held on 25-7-1998 under the Chairmanship of Secretary Health has authorised all the Provincial Inspectors appointed under section 17 of the Drugs Act, 1976 to register F.I.R. in the concerned police station for the following offences without prior permission from the Board:--

(1) Manufacture of drugs without Drug Manufacturing Licence.

(2) Sale of Spurious Drugs not manufactured by. the licensed manufacturer.

A copy of F.I.R. must invariably be sent to Provincial Quality Control Board soon after registration of case and complaint should be filed with Drug Court, Punjab after getting sanction for prosecution from the Provincial Quality Control Board.

(Sd.) Secretary, Provincial Quality Control Board, Punjab.

No. and date even

A copy is forwarded for information to:--

(1) All the Members of Provincial Quality Control Board, Punjab.

(2) Director-General, Health Services, Punjab, Lahore.

(3) Private Secretary to Chairman, Task Force, Punjab.

(4) Private Secretary to Ministry for Health, Punjab.

(5) Private Secretary to Secretary Health, Punjab.

(Sd.) Secretary, Provincial Quality Control Board, Punjab.

The contention of the learned Assistant Advocate-General, is that the aforesaid letter, dated 25-7-1998 has made competent the Drug Inspector to get registered the F.I.R. of the offences of manufacture of drug without Drug Manufacturing Licence and sale of spurious drugs not manufactured by the licensed manufacturers. On the contrary the learned counsel for the petitioner laid the emphasis that in every case the drug cannot be said to be spurious unless the same is examined by the Government Analyst and even with respect to the medicines mentioned in letter, dated 25-7-1998 it cannot be declared that the drugs are spurious unless the drugs are examined by the Government Analyst. I would hold that a minute perusal of the definition of "Spurious Drug" has made out that in every eventuality and at every cost the drug has to be sent for analysis and without the protocol of Government Analyst and his report the category and quality of the drug being genuine or spurious cannot be determined. The report of the Government Analyst has to be obtained within specified period if the drug is referred to him after seizure for examination within the specified period. The report has to be placed under section 22(3)(b) of the Act before the Board and scrutinized under section 11(5)(b) of the Act. Under Rule 4 of the Drugs Rules, 1998, the Drug Inspector shall place the matter before the Board which shall issue a. show-cause notice to the accused. After hearing the accused either the matter can be dropped or the prosecution can be launched and initiated by the Drug Inspector before the. Drug Court. The wisdom behind is that the offences under the Drugs Act, 1976 cannot be established without the initial report of the Government Analyst. According to section 30(1) of the Act, the prosecution cannot be instituted except (a) by a Federal Inspector or (b) by a. Provincial Inspector. Even though under subsection (2) of section 30 of the Act, offences -under subsection (1) of section 27 of the Act have been declared as cognizable, I hold the firm view that subsection (2) of section 30 is controlled by subsection (t) of section 30 of the Act as the prosecution has specifically been declared to be instituted by the Federal Drug Inspector or the Provincial Drug Inspector as the case may be. Without the report of the Government Analyst the offence of manufacture of drug without drug manufacturing licence and sale of such drugs cannot be established. Even otherwise in para. 2 of the aforesaid letter, dated 25-7-1998, it is provided that a copy of F.I.R. has to be sent to the Provincial Quality Control Board soon after registration of the case and complaint should be filed with Drug Court, Punjab after getting sanction for prosecution from the Provincial Quality Control Board. It means that the authority of the Board remains in tact two-fold, first that permission to get registered the case has been granted to the Drug Inspector to act as complainant and not directly to the police who cannot raid any shop or seize any such drug and secondly that after getting permission/sanction of the Board for prosecution, the complaint has to be filed by the Drug Inspector before the Drug Court, Punjab. The pivotal role has to be played by the Provincial Quality Control Board. The commission of the alleged offence mentioned in letter, dated 25-7-1998 can also be determined through the report of the Government Analyst and there is no yardstick to make out that the Drug Inspector would be in a position to hold the drug as spurious. The report of the Provincial Inspector in respect of contravention of Drug Act and report of Government Analyst in respect of drug sent to him by the Provincial Inspector for test and analysis are to be scrutinized by the Board and the Board has to issue instructions to the Drug Inspector as to the action to be taken on such report. According to Concise Oxford Dictionary the meanings of words "Scrutinize"; are "look closely at, examine in detail". The meanings of word "Scrutiny"; are "Critical glaze, close investigation, examination into details". In this view it can well be expressed and held that the role of the Board is that of supervision on the work of the Drug Inspector and for launching the prosecution the Board has to play the vital legal role. The wisdom for the incorporation of this provision of this law is to eliminate, avoid unnecessary harassment to the drug dealers and watch and control the Drug Inspectors who. may not exercise unbridled powers. Even if the aforesaid letter, dated 25-7-1998 has been issued, the provisions of Rule 4 of the Drug Rules, 1988 and the provisions of section 11(5) of the Drug Act cannot be ignored according to, which the Quality Control Board has to issue show-cause notice to the accused before taking any action and to scrutinize the material produced before it. Without adopting the aforesaid procedure the matter cannot be processed with and it can safely be held that the aforesaid letter, dated 25-7-1998 is violative of section 11(5) of the Drug Act and Rule 4 of the Drug Rules, 1988. The objectionable working of the Drug Inspectors is that they take the police alongwith themselves and after taking the sample of the aforesaid type of spurious drug without despatch to and without report of Government Analyst straightaway get the accused arrested and get the case registered. In many cases they do not even proceed under section 103 of the Code of Criminal Procedure as provided under section 18(2) of the Drug Act, 1976. This is absolutely illegal and a note of warning is issued to the Drug Inspectors with the advice to refrain from such a working violative of the, aforesaid statutory provisions of law. Consequently, Policy Letter No.SECY:(PQCB)1-13/98, dated 25-7-1998 is held to be violative of law, rules and, accordingly, declared to be ineffective and inoperative:
The upshot of the aforesaid discussion, analysis of the matter and findings is that the dictum enunciated in Shuja Ullah v. The State and others 1994 PCr.LJ 1065 (Peshawar) holds the water which is to be followed. It is to the effect that irrespective of the case being cognizable or non-cognizable, the Provincial Drug Inspector has to make a report to the Quality Control Board as and when there is any contravention, of this Act and only on reference of the case to the Board and seeking orders as to the action taken in respect of such contravention the Provincial Inspector can proceed to take the said action including the registration of a case. It is remarked that without specific instructions of the Board the Provincial Inspector cannot get registered a case even if it pertains to cognizable offence. He can also not file a complaint with regard to cognizable/non-cognizable offence under the Act unless it pertains to the class of cases specified by the Board as such. In all matters i.e. cognizable or non-cognizable, the police cannot directly proceed under section 154/551 of the Code of Criminal Procedure and the First Information Report cannot be registered thereof on its own or/and at the direction of the Executive Authorities including the District Magistrate and his subordinates under section 156 of the Code of -Criminal Procedure. The Executive Authorities including the police cannot check/raid independently any drug manufacturing place or any store etc. etc. Further, they have no technical knowledge, qualification or experience to proceed in the matter especially when even the Drug Inspector has to refer the matter to the Government Analyst whose report has to be referred to the Board for appropriate orders. As such I hold that about the sale of expired drug, the First Information Report No.692 registered on 6-10-1998 under section 27 of the Drug Act, 1976 at Police Station Chunian, District Kasur has to fall like the house of cards. Not only that the aforesaid offence is non-cognizable, the Drug Inspector did not proceed in the matter who did not submit any report before the Board and no instructions was issued by the Board.
As to the decision of the case State v. M.N. Huda and 8 others printed as PLJ 1976 Kar. 216 suffice it to express that it is the judgment passed by the Drug Court, Karachi which is not binding on the High Court and that also on this Court i.e. Lahore High Court, Lahore. Even otherwise the raid in that case was conducted on 1-10-1976 by the Chairman of the Federal Quality Control Board in the company of the Assistant Drug Controller, S.H.O. Police Station Gulberg, Karachi and two witnesses who found the manufacturing of the Aspirine Tablets on that date while the manufacture of the same was banned vide Notification No.SRO-813(1)76, dated 13-8-1976 w.e.f. 30-9-1976. Keeping in view provisions contained in section 11(5)(a)(6) of the Act the Chairman Federal Quality Control Board had the authority to inspect the premises the drug (Aspirine Tablets) was being manufactured and keeping in view section 27(1) read with section 30(2)(a) get the case registered as the offence was cognizable.

. 16. At this stage, I deem it proper to refer to the maxim "A communi observantia non est recedendum". It means that "where a thing was provided to be done in a particular manner, it had to be done in that manner and if not so done, the same would not be lawful". I have to express that it is well-recognized rule of construction that where a power is given to do a certain thing in a certain way that thing must be done in that way or not at all and that other methods of performance are necessarily forbidden.

This is the stage to touch an important point which is to the effect as to whether against the action of the Drug Inspector is there any adequate remedy before the Provincial Quality Control Board so as to bar the entertainment of a Constitutional petition by the High Court. Sections 11(5)(b), 19(b) and 22(3)(c) of the Drug Act, 1976 and Rule 4 of the Punjab Drug Rules, 1988 provide that before any action is taken by the Drug Inspector, he shall seek instruction from the Provincial Quality Control Board. It is obvious that instruction of the Quality Control Board is ought to Proceed and not accede the action of the Board even though a show-cause notice has to be issued to the accused. The Drug Act, 1976 and Drug Rules, 1988 framed thereunder have not provided any remedy of appeal, revision or representation against the action of the Drug Inspector before any authority. Even otherwise it is well-settled construction of law that the representation is not an adequate remedy specifically when there is no right of hearing provided by the statute with regard to such representation. It is, therefore, expressed and held that no adequate remedy against the action of the Provincial Quality Control Board on the basis of the reference made by the Drug Inspector is available and consequently, the Constitutional petition is the only adequate remedy available thereof before this Constitutional Court.
In view of my aforesaid detailed reasoning and findings, I accept this writ petition and quash F.I.R. No.692 registered on 6-10-1998 under section 27 of the Drug Act, 1976 at Police Station Chunian, District Kasur, However, the competent Authority may proceed in the matter in accordance with the prevalent law. The law with respect to cognizable and non cognizable offences under the Drug Act, 1976 has been analysed and clarified in this judgment. In the circumstances the parties are left to bear their own costs.
The Registrar of this Court shall send a copy of this judgment to each of:-

(1) The Secretary, Health Department, Government of the Punjab Lahore.

(2) The Secretary, Home Department, Government of the Punjab, Lahore for information.

H.B.T./A-58/L Petition accepted.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1605 #

2000 P Cr. L J 1676

[Lahore]

Before Raja Muhammad Khurshid, J

MUHAMMAD ASGHAR‑‑‑petitioner

versus

THE STATE‑‑‑Respondent

Criminal Revision No. 105 of 1999, decided on 1st June, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 540‑‑‑Application for resummoning and cross‑examining the prosecution witnesses by accused‑‑‑Trial Court which had allowed said witnesses to be resummoned and cross‑examined earlier, later on refused resummoning and cross‑examining them on the ground that High Court, while disposing of petition of accused for quashing of proceedings, had nowhere mentioned for resummoning and cross‑examining the witnesses‑‑Validity‑‑High Court in its order had not observed that said witnesses would not be resummoned or cross‑examined‑‑‑Trial Court, in circumstances, had taken erroneous view in that respect‑‑‑Witnesses once allowed to be summoned and cross‑examined, would not be disallowed later .on‑‑‑High Court in exercise of its revisional jurisdiction set aside order of Trial Court with direction that said witnesses alongwith Investigating Officer should be recalled for cross‑examination as prayed for by accused.

Muhammad Ashraf Ashfi for Petitioner.

Abdul Hamid Khokhar for the State.

Date of hearing: 1st June, 1999.

ORDER

This revision petition is directed against the order, dated 13‑4‑1999 passed by Sardar Ghulam Abbas Khan, Special Judge (Central), Multan whereby he disallowed the cross‑examination of P.Ws.I to 4, which

was previously allowed by him vide order, dated 20‑12‑1994. In that order while accepting the application moved by the petitioners/accused under section 540, Cr.P.C. P.Ws. Muhammad Younas, Muhammad Ghani and Muhammad Sharif were directed to be recalled for their cross‑examination by the defence. Later on the petitioners/ accused filed an application under section 249‑A read with section 403, Cr.P.C. wherein it was contended that . they were previously tried and acquitted on the same charges which were levelled in the present case and as such the present trial was barred under section 403, Cr.P.C. and they were entitled to acquittal. That application was dismissed vide order, dated 13‑4‑1999 against which the present revision petition has been filed. Earlier to that a quashment petition (Criminal Miscellaneous No.8/Q of 1995) was filed by the petitioners/accused for the quashment of order, dated 20‑12‑1994 whereby the petition under section 249‑A Cr.P.C. was declined. The aforesaid quashment petition was disposed of by my learned brother Kh. Muhammad Sharif, J. vide order, dated 4‑12‑1998 with the observation that the petitioners/accused shall be given opportunity to produce certified copies of the documents in defence to show that the provisions of section 403, Cr.P.C. were applicable.. After that decision the petitioners/accused again filed a petition under section 249‑A, Cr.P.C. read with section 403, Cr.P.C. that they were entitled to acquittal,, which was disposed of vide impugned order, dated 13‑4‑1999 resulting into the filing of this revision petition.

The learned counsel for the petitioners has submitted that he would not press this petition to the extent of acquittal under section 249‑A, Cr.P.C. at this stage as he would like to produce the relevant documents showing that petitioners/accused were tried previously by a Court at Sahiwal on the same charges and were acquitted. In this regard, it is further submitted that relevant documents have already been tendered in defence. The only grievance expressed during the arguments is that the learned trial Court declined cross‑examination of Muhammad Younas, Muhammad Ghani and Muhammad Sharif P.Ws. which was previously allowed vide order, dated . 20‑12‑1994 on the ground that the High Court while disposing of the quashment petition had not permitted the same except that certified copies of the documents as aforesaid shall be produced in defence. The learned counsel for the petitioners has also submitted that in the quashment petition the resummoning of the aforesaid witnesses was not the subject‑matter nor the same was taken into consideration while disposing of the said petition. It was, therefore, not necessary that any observation would have been made in respect of the same. The learned counsel for the petitioners has added that although the aforenamed witnesses were permitted to be cross‑examined, but at that time the prayer could not be made for the cross‑examination of Ikhlaq Hussain, Investigating Officer, who appeared as a witness later on.
It is prayed by the learned counsel for the petitioners that witnesses once allowed to be summoned and cross‑examined would not be disallowed later on vide the impugned order which would be apparently against the law.
The learned counsel for the State has submitted that he would have no objection regarding the summoning and cross‑examination of the aforesaid three witnesses, but there was no such permission regarding the summoning and cross‑examination of the Investigating Officer and therefore, he cannot be summoned at this stage.
I have considered the foregoing facts and find that resummoning and cross‑examining of Muhammad Younas, Muhammad Ghani and Muhammad Sharif was allowed by the learned trial Court vide its order, dated 20‑12‑1994. The prayer of the petitioners was accepted and they never felt aggrieved of such summoning. The same, therefore, could not subsequently be declined by the learned trial Court vide the impugned order only because there was no such mention in the order passed by this Court on the quashment petition, dated 4‑12‑1998. The perusal of that order clearly showed that there was no observation that the aforesaid witnesses shall not be resummoned or cross‑examined as directed in the order of the learned trial Court, dated 20‑12‑1994. As such the learned trial Court has taken erroneous view to come to the conclusion that since there was no mention of the resummoning or cross‑examining these witnesses, therefore, the petitioners would not resummon or cross‑examine them. The impugned order is therefore, set aside with the direction that prosecution witnesses namely Muhammad Younas, Muhammad Ghani and Muhammad Sharif shall be recalled for cross‑examination by the defence. Likewise the Investigating Officer being an important witness shall also be allowed to be resummoned and cross‑examined. However, decision in respect of application under section 403, Cr.P.C. shall be taken by trial Court while disposing of the case in hand. The revision petition is accordingly allowed as indicated above with the observation that the trial shall be concluded within one month after the receipt of this order by fixing the case for day to day hearing. If need be, the petitioners/accused shall be allowed to make supplementary statements under

H.B.T.M-177/L Order accordingly.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1644 #

2000 P Cr. L J 1679

[Lahore]

Before Zafar Pasha Chaudhry, J

MUHAMMAD IQBAL‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Revision No.30 of 2000, decided on 23rd February, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 161 & 204‑‑‑Cognizance of offence‑ ‑‑Issuance of process‑‑‑Contention of accused was that mere reference to statements under S.161, Cr.P.C. was not sufficient to issue process to accused but Trial Court should have recorded some evidence and after collecting some material he could have issued process‑‑‑General practice no doubt was that Trial Court recorded some evidence and in case some material against an accused came on record then process was issued, but Trial, Court was not bound to record evidence before issuing process‑‑‑Process could be issued on basis of material which was presented alongwith challan, which already existed on police file, if Court considered that justifiable grounds existed to issue process.

Shaukat Ali and others v. The State 1995 PCr.LJ 1749 ref.

Muhammad Islam Sheikh for Petitioner.

M. Bilal Khan, Addl. A.‑G. for the State.

Date of hearing: 23rd February, 2000.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1676 #

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PCRLJ 2000 LAHORE HIGH COURT LAHORE 1679 #

2000 P Cr. L J 1688

[Lahore]

Before Mian Allah Nawaz, C.J. , Dr. Munir Ahmad Mughal, J

UHAMMAD JABBAR---Petitioner

versus

THE STATE and 10 others---Respondents

Criminal Revision No.674 of 1999, decided on 9th May, 2000, (a) Penal Code (XLV of 1860)---

----S. 299(k) [as substituted by Criminal Law (Amendment) Act (II of 1997)]---Qisas---Scope and applicability---System of Qisas, prescribed by Holy Scripture, keeps and ensures the balance and peace in society and engenders the doctrine of fairness, tranquility and harmony ---Qisas saves the society from acts committed by wrong-doers---Divine commandment is that in matter of Qisas the legal heirs of deceased/assassinated/wronged person should not cross the limits and keep balance while taking Qisas furthermore Wali-e-Maqtool (heirs of the assassinated) are vested with the power to condone (Afw).

AI-Qur'an: Surah Al-Baqarah, Verse No. 178, p.70; Surah AI-Nisa, Verse No.92 p.209; Surah Al-Airaf, Verse 156, pp.378, 388 & Surah Al Maidah, Verse No.45, para. No.5 ref.

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

----S. 299(k) [as substituted by Criminal Law (Amendment) Act (lI of 1997)]---Qisas---Object---Composition for offence---Entitlement of Qisas--Rule of priority of blood---Applicability---Right of Afw (condone), exercise of---Scope---Islam prescribes the right of Qisas which is retributive in nature, satisfies the element of deterrent and disabling theories of criminal jurisprudence ---Qisas is beautiful amalgamation of all these theories and is blessing for mankind and humanity---Qisas is right of wronged to be put in the place where wrongdoer has put him and is the right of legal heirs of wronged ---Qisas is right of Wali-e-Maqtool/his legal heirs and is compoundable ---Wali-e-Maqtool (legal heirs of assassinated) have right to compound/condone/Afw on the payment of compensation/Diyat or without such compensation in lieu of pleasure of God on the Day of Resurrection--Qisas is a right like property and heritable and is excusable by the legal heirs---Such right accrues to those legal heirs who are entitled to inherit the legacy of the deceased/wronged persons according to rules of Muslim inheritance which are applicable to them in the matter of devolution of legal estate left by the deceased---Rule of priority of blood tie and the principle of Ta'sib do apply in the case of Qisas/Diyat/Afw----Right of Afw (condone) is to be exercised in demeanour which is free from duress, coercion and manipulation ---Qisas is to be used in view of seeking the pleasure of God and for no other affirmation---Legal heirs are not to exceed the reasonable limits and so was the responsibility of murderer/wrongdoer.

Al-Qur'an Surah Al-Baqarah, Verse No. 178, p.70; Surah Al-Nisa, Verse No.92, p.209; Surah Al-Airaf, Verse 156, pp.378, 388; Fiqh Abdullah Bin Masood by Dr. Rawwas (V); Kitab-ul-Janayat Waddiyat Min Al-Hadaya; Mutala'ah Uloom-e-.Islamia Urdu translated by Ghazi Ahmad, pp.58, 59; Imam Zufar Wa-Aara-o-Hoo AI-Fiqhiyyah by Abu Al-Yaqzan Atiyyah A1 Jabroori, Vol. 1, pp.316, 317; Badai-al-Sana'i by Al-Kassani, translated by Khan Muhammad Chawala Vo1.VIl, pp.559, 571, 582; AlSharah Al-Saghir by Ahmad Bin Muhammad Bin Ahmad Al-Darir, VOl.IV, pp.358 to 568; Al-Tashri AI-Jana'i Al-Islami by Dr. Abdul Qadir Audah Shaheed, translated by Sajid-ur-Rahman Kandhalvi Vo1.II, pp.59 to 64, 170 to 173, 319 to 331; A1 Fiqhul Islami wa Adillatuhu by Dr. Wahbah At-Zuhaili, Vol.VI, pp.286 to 295; Majmooa Qwaneen-e-Islam by Dr. Tanzil-ur-Rghman (Qanun-e-Warathat (V), pp,1687, 1745, 1947; Al-Munjid, p.l397, column No.3; Urdu Dictionary/Fatah-ul-Lughat; -Kitab Al-Fiqh-Alamazahib Al-Araba'ah by Abdur Rehman Al-Jaziri, Vol.35, pp.491 to 494, 506 to 508; AI-Qur'an: Sura Bani Israeel, Para. No.15; Surah Al-Maidah: Verse No.45, para.5 and Badai-Al-Sanai compiled by Imam Kaasani, p.571 ref.

----S. 302/307/452---Criminal Procedure Code (V of 1898), S.345(5-A)--Offence, compounding of---Triple murder---Mother, aunt and grandfather was murdered by father of minors---Minors condoning the murder of their aunt and maternal-grandfather---Composition for offence without compensation---Validity---Minors had no right to condone the murder of their aunt and maternal-grandfather when the deceased persons were survived with their own heirs---Where the legal heirs to the two deceased persons demanded compensation, the offence could not be compounded without the same.

Riaz-ul-Hassan Gilani, Hasnat Ahmad Khan and Sardar M. Latif Khan Khosa for Petitioners.

Ch. Ijaz Ahmad, Addl. A.-G. for the State.

Rai Bashir Ahmad Khan for Respondents Nos.2 to 11.

Date of hearing: 22nd March, 2000.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1685 #

2000 P Cr. L J 1685

[Lahore]

Before Muhammad Akhtar Shabbir, J

Mst. HALEEMA BIBI‑‑‑Petitioner

Versus

BASHIR AHMAD and 2 others‑‑‑Respondents

Criminal Miscellaneous No.414/H of 1999, decided on 30th July, 1999.

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

‑‑‑‑ S. 491‑‑‑Hab6as corpus petition‑‑‑Custody of minors‑‑‑Petitioner was real mother of minors while respondents were strangers to them‑‑‑Petitioner who was arrested in murder case of her husband was behind the bars and during that period paternal grandmother of minors, who at that time was alive, was appointed guardian of the minors by the Court as she had preferential right thereof‑‑‑Paternal grandmother had died and minors were legal heirs of property of their paternal‑grandmother‑‑‑Respondents, who had no relation with minors, had no right to keep custody of minors in any manner‑‑Petitioner mother, though had married second husband, but minors were produced of her womb and she being a mother, even if was a butcher, could not kill her own children‑‑‑Except her no other person was present before Court entitled for interim custody of minor children‑‑‑High Court could exercise jurisdiction under S.491, Cr.P.C. without prejudice'to the right of rcr.w

the parties to have the matter finally adjudicated upon by Guardian Judge‑‑‑High Court handed over custody of minors/detenues to petitioner till adjudication if pending or filed by any of parties before the Guardian Court.

Muhammad Khalil‑ur‑Rehman v. Mst. Shabana Rehman and another PLD 1995 SC 633; Mst. Zaibunnissa v. Muhammad Qassam and 4 others 1981 CLC .1275; Mst. Sultana Begum v. Muhammad Shafi PLD. 1965 (W.P.) Kar. 416; Mussarat Jabeen v. Dr. Khalid Nawab and another 1990 PCr.LJ 686; Mst. Hamida Bibi v. Station House Officer and another 1998 PCr.LJ 140; Abdur Rehman Khakwani and another v. Abdul Majid Khakwani and 2 others 1997 SCMR 1480; Afshan Naureen v. Nadeem Abbas Shah 1997 MLD 197; Abdur Rehmsm Khakwani and another v. Abdul Majid Khakwani and 2 others 1997 SCMR 1480; Nisar Ahmad and another v. Sultan Zari PLD 1997 SC 852; Ahmed Sami and 2 others v. Saadia Ahmed and another 1996 SCMR 268 and Mst. Zenia v. Ahmed Jawad Sarwar PLD 1994 Lah. 577 ref.

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

‑‑‑‑S. 491‑‑‑Guardians and Wards Act (VIII of 1890), S.25‑‑‑Habeas corpus petition‑‑‑Maintainability of ‑‑‑Habeas corpus petition filed by petitioner was objected to by respondent contending that it was only Guardians and Wards Court which could finally adjudicate upon custody of minors with paramount consideration of welfare of minors and petition under S.491, Cr.P.C. was not maintainable‑‑‑In case of custody of minors two remedies were; oneunder S.25 of Guardians and Wards. Act, 1890 and other under S.491, Cr.P.C.‑‑‑Both remedies were entirely different, but High Court in certain cases could pass order under S.491, Cr.P.C. and it was only interim measure till the final decision by Guardian Judge‑‑‑High Court could exercise jurisdiction under S.491, Cr.P.C. without prejudice to the right of the parties to have the matter finally adjudicated upon by Guardian Judge‑‑‑Petition was maintainable.

Muhammad Ramzan Khalid for Petitioner.

Khan Wajid Nawaz Khan for Respondents Nos. 1 and 2.

Malik Muhammad Shabbir for Din Muhammad.

Date of hearing: 30th July, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1688 #

2000 P Cr. L J 1725

[Lahore]

Before Iftikhar Hussain Chaudhry, J

MUHAMMAD AMIR‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal .Appeal No.233 and Criminal Revision No.171 of 1997, heard on 29th March, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑F.I.R. was lodged promptly and no premeditation had gone into making up story which subsequently was reduced into writing in form of F. I. R. ‑‑‑Medical evidence had proved that occurrence had taken place after deceased had taken breakfast‑‑‑Contention of accused that murder took place during night time was not supported by any circumstance existing on record‑‑‑Occurrence having happened in the middle of village after sunrise, presence of prosecution witnesses at the spot could not be ruled out‑‑‑Claim of accused that said witnesses were not witnesses of incident, could not be given weight to‑‑‑Accused was the sole accused in the case‑‑‑No circumstance had been pointed out by accused which could show that complainant or prosecution witnesses had any reason to let off real assailant or to have substituted accused in case‑‑‑Prosecution case against accused having been fully established at trial, he was rightly found guilty for murder of father of the complainant‑‑‑Sentence awarded to accused by Trial Court in facts and circumstances of case having been found to be proper and justifiable one, judgment of Trial Court, would not call for any interference.

Ch. Shazib Saeed and Ch. Saqib Saeed for Appellant.

M.A. Zafar for the Complainant.

S.D. Qureshi for the State.

Date of hearing: 29th March, 2000.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1712 #

2000 P Cr. L J 1779.

[Lahore]

Before M. Naeemullah Khan Sherwani, J

ZAFARIQBAL ‑‑‑ Petitioner

versus

THE STATE‑‑‑Respondent'

Criminal Miscellaneous No.624/B of 2000, decided on 30th March, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10/18‑‑‑Penal Code (XLV of 1860), S.337/458‑‑‑Bail, grant of‑‑Accused had been in judicial lock‑up for the last about eight months and trial proceedings had not been initiated so far and culmination of trial was likely. to consume a pretty long time‑‑‑Accused was no longer required by police for further investigation and no further offence was to be discovered from him‑‑‑Conflicting police opinions were expressed about the guilt of accused‑‑‑Case of accused, in circumstances, fell within ambit of S.497(2), Cr.P.C. being that of further inquiry‑‑‑Accused was admitted to bail, in circumstances.

Syed Murtaza Ali Zaidi for Petitioner.

Mian Kamran Bin Latif for the State.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1725 #

2000 P Cr. L J 1791 .

[Lahore]

Before Tassqduq Hussain Jilani, J 7~ ,.ry

MUHAMMAD FAROOQ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.597/B of 2000, decided on 19th April, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10/16‑‑‑Bail, grant of‑‑‑Trial Court had stayed proceedings in the trial of case and all co‑accused were on bail while accused was behind the bar for the last ten months and was not required for further investigation‑‑Witnesses mentioned in F.I.R. had sworn affidavits and disowned prosecution case‑‑‑Guilt of accused requiring further inquiry, they were allowed bail.

Hasnat Ahmad Khan for Petitioner.

M. Bilal Khan, Addl. A.‑G. assisted by Muhammad Ashra Khokhar for the .Mate.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1779 #

2000 P Cr. L J 1799

[Lahore]

Before Iftikhar Ahmad Cheema, J

IBRAHIM ‑‑‑ Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 124 of 1996, heard on 8th February, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Daylight occurrence‑‑‑F. I. R. containing all necessary details of occurrence was promptly lodged‑‑‑Motive of occurrence was very strong and medical evidence had fully supported case of prosecution‑‑‑Complainant and other prosecution witnesses who were eyewitnesses, were natural witnesses and 'their presence at the spot had been fully proved‑‑‑Said eye‑witnesses were subjected to a searching lengthy cross‑examination but nothing was brought on record which could tend to discredit their testimony‑‑‑Testimony of complainant. and prosecution witnesses, who proved to be witnesses of truth, was rightly believed especially when they had no motive or malice against accused‑‑Eye‑witnesses no doubt were related to deceased, but mere relationship would not be ground for discarding their testimony when their presence at scene of occurrence was probable‑‑‑Minor discrepancies in evidence of prosecution, was hardly a ground to reject evidence of witnesses, especially when witnesses were examined to depose on events which happened long before their examination‑‑‑Motive of occurrence as alleged was that bad blood existed between deceased and accused because accused had suspected that deceased had developed illicit relations with sister of accused‑‑‑Facts mentioned in F.I.R. by complainant remained unrebutted‑‑‑Defence plea that deceased was killed by another person, was neither borne out from prosecution evidence nor was established by defence by adducing evidence‑‑Such plea which was false and imaginary, could not be considered‑‑Prosecution having fully established guilt of accused in causing intentional death of deceased, conviction recorded by Trial Court under S.302(b), P.P.C. was upheld, but penalty of compensation awarded by Trial Court was set aside being wholly unwarranted.

Ch. Muhammad Din Ansar for Appellant. Hasnat Ahmad Khan for the Complainant. Ch. Abdul Rasheed Monan for the State.

Date of hearing: 8th February, 2000;

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1791 #

2000 P Cr. L J 1808

[Lahore]

Before Khawaja Muhammad Sharif, J

AHMAD ARSHAD alias RANA and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.840 and 727 of 1992, heard on 26th April, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Benefit of doubt‑‑‑Accused was not named in F.I.R. even no injury was attributed to him‑‑‑Allegation of firing was not proved from the record as no crime‑empty was recovered from the spot‑‑‑Recovery of crime weapon made on pointation of the accused was disbelieved by the Trial Court‑‑‑Effect‑‑‑Where there was no corroborative piece of evidence against the accused, benefit of doubt was extended to him‑‑‑Conviction awarded by the Trial Court was set aside.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34 & 304‑‑‑Appreciation of evidence‑‑‑Sudden fight ‑‑‑Sentence‑‑Injuries caused on non‑vital parts of body of deceased‑‑‑Occurrence had taken place at spur of the moment and the injuries caused on different parts of body of deceased were declared by the doctor to be on non‑vital parts and simple in nature‑‑‑Case fell under S.304‑II, P.P.C. and sentence of life imprisonment awarded by Trial Court was altered to one already undergone.

| | | --- | | |

N.A. Butt and M. Iqbal Bhatti for Appellants.

Muhammad Siddiq for the State.

Date of hearing: 26th April, 2000.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1799 #

2000 P Cr. L J 1818

[Lahore]

Before Muhammad Nawaz Abbasi and Sheikh Abdur Razzaq, JJ

TAHIR MAHMOOD‑‑‑Appellant

versus

THESTATE‑‑‑Respondent

Criminal Appeal No.56 and Murder Reference No. 106 and Criminal Revision No.54 of 1994. heard on 22nd November, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Witnesses claiming their presence at a short distance from place of occurrence had narrated occurrence and further corroborated each other on all material facts‑‑‑Occurrence was admitted and material facts including use of Chhuri as weapon of offence was not disputed‑‑‑Deceased sustained injury at hands of accused in front of Octroi Post opposite to shop being run by prosecution witness‑‑‑Presence of said prosecution witness at his shop at relevant time could not be disbelieved especially when accused had not been able to dislodge claim of said prosecution witness to be present at the shop at relevant time‑‑‑Occurrence had taken place at public place on Pacca road near house of accused leading to house of parents of deceased as well as his own house‑‑‑Presence of deceased on road was neither objectionable nor accused could take benefit of being resident of locality‑‑‑Parties had no background of previous enmity and independence of witnesses due to relationship was not questionable on basis of minor discrepancies and contradictions‑‑‑Injuries on person of deceased would not negate evidence of natural witnesses‑‑‑Accused being resident of a place near octroi, his presence at the octroi would not be unnatural‑‑Circumstances under which occurrence had taken place had shown that accused while suddenly confronting deceased, had flared up and while picking up quarrel with him inflicted a Chhuri blow on most sensitive part of bode of deceased which proved fatal‑‑‑Occurrence being result of chance encounter in which accused caused a single blow with Chhuri to deceased on account of exchange of abuses by deceased with his uncle without any other motive, sentence of extreme penalty of death was not proper‑‑‑Conviction of accused was maintained, but sentence of death awarded to accused by Trial Court, was altered to life imprisonment.

Sardar Muhammad Ishaque Khan for Appellant.

Malik Muhammad Kabeer, A.A. ‑G.‑for the State.

Muhammad Munir Peracha for the Complainant.

Date of hearing: 22nd,November, 1999.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1808 #

2000 P Cr. L J 1829

[Lahore]

Before Muhammad Nawaz Abbasi and Sheikh A6dur Razzaq, JJ

MUHAMMAD IQBAL‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.95 and Murder Reference No.209 of 1994, heard on 25th January, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Occurrence was admitted, but with different version with denial of presence of eye‑witnesses at the spot‑‑Motive given by prosecution about occurrence was that accused entered. into altercation with deceased 3/4 days prior to occurrence over a dispute of construction of wall‑‑‑Except motive part, which ran counter to accused's version, prosecution story with regard to time, date, place of occurrence and weapon used by accused stood established even by admission of accused‑‑Prosecution witnesses had reasonably established their presence at the spot at relevant time and accused, despite lengthy cross‑examination. had not been able to dislodge presence of said ‑prosecution witnesses at relevant time near place of occurrence‑‑‑Prosecution witnesses, without any omission or addition, had narrated prosecution story as contained in F.I.R. which stood corroborated by medical evidence and recovery of weapon of offence from accused‑‑‑Prosecution case was further corroborated by defence version‑‑Prosecution version was supported by natural and independent witnesses who had no enmity or malice against accused to make false deposition against him in a murder case‑‑‑Eye‑witnesses account and their credibility could not be doubted or disbelieved‑‑‑Even in light of defence version, charge against accused had stood fully established‑‑‑Murder of deceased having been proved intentional one, accused was rightly convicted by Trial _ Court, but motive part of prosecution story being shrouded in mystery and element of "Ghairat" also having been pleaded by accused, it appeared that prosecution had withheld actual reason behind occurrence‑‑‑Extreme penalty of death, in circumstances, would be improper‑‑‑Sentence of death was altered into imprisonment for life.

Sardar Muhammad Ishaq Khan for Appellant.

Syed Sajjad Hussain Shah, A.A.‑G. for the State.

Date of hearing: 25th January, 2000.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1818 #

2000 P Cr. L J 1835

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD AMIR KHAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.264 and Criminal Revision No.57 of 1998, heard on 8th May, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/306/308/449‑‑‑Awarding sentence to pay Diyat amount‑‑‑Charge against accused was framed under 5.302/449, P.P.C. but he was convicted and sentenced under S.308, P.P.C. awarding him punishment of paying Diyat amount‑‑‑Accused filed appeal against judgment of Trial Court whereas complainant had filed revision against judgment of Trial Court‑‑Sentence of Diyat awarded to accused had been challenged by complainant in revision on two grounds firstly that Trial Court had framed charges against accused under S.302/449, P.P:C. but convicted him under S.308, P.P.C. only .and did not pass any order under S.449, P.P.C., secondly that Trial Court had extended benefit of S.306(c), P.P.C. and convicted him under S.308, P.P.C. simply on ground that deceased was husband of daughter of accused and as such was a direct descendant of accused‑‑‑Complainant had contended that Trial Court was not justified in extending accused the benefit as Rukhsati of daughter of deceased had not taken place and accused's case did not fall within ambit of S.306, P.P.C. but accused was liable to be punished under S.302(b), P.P.C.‑‑‑Viliditv‑‑‑Grounds taken by complainant were not tenable because mere facts that accused was charged under 5.449, P.P.C. would not mean that he had to be convicted for that offence ‑‑‑Non conviction of accused under S.449, P:P.C. would mean that Trial Court did not hold accused guilty of said offence‑‑‑Second objection of complainant was also devoid of any force because daughter of accused admittedly being married to deceased, case of accused squarely fell within purview of S.306(c), P.P.C. and in circumstances, accused was liable to be convicted under 5.308, P.P.C.‑‑‑Trial Court, in circumstances, had rightly imposed on accused Diyat and refrained from imposing sentence of Ta'zir on him‑‑Accused who had paid amount of Diyat, had rightly been released.

Abdus Salam v. The State 2000 SCMR 338 and A‑bdur Rauf v. The State and 2 others 1998 SCMR 1771 ref.

Appellant in person. Nazar Muhammad Tahir for the Complainant.

Date of hearing: 8th May, 2000.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1829 #

2000 P Cr. L J 1840

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD TARIQ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1258/13 of 2000, decided on 12th April, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.392/411‑‑‑Bail, grant of‑‑Accused was not named in F.I.R. and no identification parade had been held‑‑‑Supplementary statement recorded by police in which accused had been named by complainant, its legal effect would be seen at the time of trial‑‑‑Case against accused was covered by subsection (2) of S.497, Cr.P.C. which required further inquiry into guilt of .the accused‑‑‑Accused was allowed bail, in circumstances.

Rana Muhammad Aqeel Nasar for Petitioner.

Saif Ullah Khalid for the State.

Date of hearing: 12th April, 2000.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1835 #

2000 P Cr. L J 1841

[Lahore]

Before Khalil-ur-Rehman Ramday and Zafar Pasha Chaudhry, JJ

ABDUL GHAFOOR---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 197 of 1994 and Murder Reference No.24 of 1995, heard on 9th June, 2000.

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

----Ss. 302/324/353/186/34 & 311---Appreciation of evidence---Compromise reached between the accused and legal. heirs of deceased---Effect---Pending appeal against conviction and sentence awarded to accused by Trial Court, compromise was reached between the accused and legal heirs of deceased whereby "AFW" was granted to accused by heirs of deceased in the name of God and heirs of deceased had prayed that accused be acquitted--Genuineness of the compromise was verified and same was found to be genuine and voluntary---Compromise reached between the parties though was valid and of voluntary nature, but such a compromise, would not necessarily entail an automatic acquittal of convict because provisions of 5.311, P.P.C. had envisaged situations where, despite compromise reached between the parties, accused was still liable to punishment by way of "Ta'zir"---One such situation in which such punishment could be awarded was where offence in question amounted to or involved "Farad Fil ,Arz"---Accused was guilty of killing a police constable whose only fault was that he was a member of a police party which had gone to the house of accused on receiving information that accused was keeping illicit arms in his house and when commanded by head of the police party to open the door of his house and to permit search therein, had opened fire on them with assistance of his companions which had resulted in death of the police constable---Said act/conduct of accused amounted to "Farad Fil Arz"---Conviction and punishment recorded by Trial Court against accused under S.302/34, P.P.C. though was set aside, but he was directed to suffer 10 years' R.I. under S.311, P.P.C.---Other offences against accused under S.186/353/34, P.P.C. being non-compoundable, conviction and punishments under Ss.186, & 353/34, P.P.C. were maintained.

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

----"Farad", "Farad Fil Arz"---Defined and explained.

Altaf Ibrahim Qureshi for Appellant.

Tahir H. Wasti, A.A.-G. with Mehr Muhammad Saleem for the State.

Date of hearing: 9th June, 1997.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1840 #

2000 P Cr. L J 1847

[Lahore]

Before Iftikhar Hussain Chaudhry, J

MUHAMMAD ABID and others---Petitioners

versus

NUSRAT ALI ---Respondent

Writ Petition No. 14603 of 1999, heard on 29th June, 2000.

(a) Defamation--

----"Libel", "slander"---Connotation---Defamation is communication to third parties of false statement about the person to injure his reputation or to deter others from associating with that person---Defamation by the printed words is "libel" and defamation by spoken words is "slander"---Defamation consists of: a false statement of facts about another; an unprivileged publication of that statement; some degree of fault depending on the type of case and some damage or harm caused.

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

----S. 499---Defamation---Necessary ingredients of the offence. Making of imputation or defamatory statement (libel or slander); communication to a third party or publication; and intention to harm or knowing or having reason to believe that such imputation will harm the reputation of such person.

----S. 499---Defamation---Defences available to an accused person enlisted.

Following are the defences available to an accused of defamation:

(i) Truth of statement made in public interest;

(ii) Honest opinion about public conduct of public functionaries;

(iii) Statement being an opinion about public conduct of a person;

(iv) Neutral and fair/accurate reporting of Court proceedings;

(v) Honest expression of opinion about merits of the decided case;

(vi) Fair comments about merits of public performance;

(vii) Bona fide censure passed by a person in authority;

(viii) Accusation made by a person in good faith, to a person in authority.

(ix) Accusation made to safeguard the personal interest of the individual or for the public good of a person or to public;

(x) Putting a person or public on caution against another for public good.

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

----S. 499---Defamation---Proof---Necessary ingredients. Existence of an imputation or a defamatory statement; (hat such imputation emanated from the accused; that the accused made or published same or communicated to a third party; and that the accused intended thereby to harm the reputation of the complainant or that he knew or had reason to believe that he would do so.

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

----S. 500---Defamation---Agent of an accused person, liability of---Scope--Unless it is shown that agent of an accused had acted specifically on his instructions in a particular manner, the accused cannot be saddled with the liability for making the imputation or convicted for offence under S.500, P.P.C.

(f) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Quashing of criminal proceedings---High Court, jurisdiction of---Scope---High Court has unabridged and unqualified power to interfere in any appropriate case where it is found that any particular proceeding would tantamount to abuse of process of law and that of the Court---Power of High Court in this respect is. not abridged by any provisions of law or precedent.

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

----S. 500---Defamation---Onus to prove---Direct nexus between the author or originator of the imputation and its publication or communication, is required to be established by independent evidence, by prosecution in order to succeed in case of defamation.

Law .of Crimes by Ratanlal and Dhirajlal; Mariano PA (1904) 10 Bur. LR 304; Jeremiah v. Vas (1911) 2 MWN 576 and Devi Dyal's case (1922) 4 Lah. 55 ref.

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

----S. 500---Defamation---Act of agent on behalf of accused---Scope---Agent and principal might be equally liable under civil tort of defamation but in criminal law, it has to be proved by independent evidence by the prosecution or, complainant that the counsel or agent has acted and the imputation which was subsequently published or communicated was issued or sent under the specific instructions of principal---Mere presumption that the same must have been done under principal's instruction is not enough.

Nihal Singh v. Arjan Das 1983 Cri.LJ 777 (Delhi); Miss Rebecca Mondal v. Emperor AIR 1947 Cal. 278 and Subbu Chettiar v. Ayyaru Chettiar AIR 1959 Ker. 342 ref.

(i) Constitution of Pakistan (1973)--

----Art. 199---Penal Code (XLV of 1860), S.500---Constitutional petition--Defamation---Quashing of proceedings pending before Criminal Court--Publication on behalf of the petitioner Bank, appeared in newspaper whereby the complainant was shown to be a loan defaulter---Parties were resident of place "K" but the complaint was filed at place "L"---Effect---Complainant was trying to overreach in the matter and complaint had been filed by him in order to air personal rancour and vendetta---Courts were not to provide an arena to parties for mud-wrestling---Where the complainant had no bona fide cause of action, n6 imputation was made by the petitioner against the complainant, such proceedings initiated before the Trial Magistrate amounted _ to abuse of process of law and were required interference of High Court--Proceedings were quashed in circumstances.

Hakim Mai v. The State 1993 PCr.LJ 1788; PLJ 1993 Cr. Cases 304; 2000 PCr.LJ 1150; AIR 1982 SC 784(2); PLD 1998 Lah. 71; PLD 1994 SC 281; 1991 PCr.LJ 1997; 1987 PCr.LJ 803; PLD 1967 SC 317; PLD 1976 SC 461; AIR 1992 SC 2206; AIR 1996 SC 204; AIR 1983 SC 595; AIR 1981 .SC 1164 (1981 Cri.LJ 627); 1968 SCMR 380; 1999 PCr.LJ 258; 1999 PCr.LJ 1154; 1999 PCr.LJ 2099; 1992 PCr.LJ 670; 1992 PCr.LJ 58; 1994 SCMR 2142; 1986 SCMR 483; 1992 PCr.LJ 834; AIR 1976 SC 1947; PLD 1989 SC 166; PLD 1974 SC 134; PLD 1973 SC 236 and PLD 1975 SC 331 ref.

Khalifa Shujat Amin for Petitioner.

Ashtar Ausaf Ali Khan and Khalid Mehmood Ansari for Respondent.

Dates of hearing: 23rd and.29th June, 2000.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1841 #

2000 P Cr. L J 1868

[Lahore]

Before Raja Muhammad Sabir, J

ABDUR RAZZAQ---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.3324/B 8f 1999, decided on 13th January, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Accused according to version of F.I.R. was only attributed Lalkara whereas his co-accused who was his brother, allegedly had fired at the deceased--Investigating Officer had stated that only one empty was recovered from place of occurrence which was fired by co-accused---Accused was though involved in certain criminal cases, but prosecution had not been able to show his conviction in any case---Plea of accused that he had been falsely involved in the case due to enmity, could not be brushed aside because complainant and accused were inimical towards each other---Accused was behind the bar for more than one year and even challan had not been submitted in prosecution branch---Case against accused needing further probe, he was granted bail.

Sardar Shaukat Ali for Petitioner.

Muhammad Akram Qureshi for the Complainant.

Waheed Anwar for the State.

ORDER

Abdur Razzaq, petitioner seeks his post-arrest bail in case F.I.R. No. 170 of 1998, dated 30-5-1998 under section 302/34, P.P.C., registered at Police Station Kanganpur, District Kasur.

Briefly the facts of the case are that during the preceding night of 30-5-1998 at about 2-30 in the morning, the complainant alongwith his son Asghar Ali and daughter-in-law Tahira Yasmeen, were sleeping in the house. He got up on hearing noise of some movement.. He saw Jan Muhammad and Abdur Razzaq (petitioner) armed with .12 bore guns alongwith two other unknown persons armed with Sotas standing in the compound of the house. Abdur Razzaq, petitioner, raised Lalkara to catch hold of Asghar Ali and kill him to teach a lesson for levelling false allegation of theft against them. Meanwhile, Ilam Din and Tahira Yasmin also got up. The accused were identified in the light of electric bulb which was on. On Lalkara of the petitioner, Jan Muhammad accused fired with his gun on Asghar which hit him in front side of his left shoulder. Asghar Ali tried to catch hold of the accused but he fell down and succumbed to the injuries. The complainant and the eye-witnesses followed the accused but they ran away towards the West by resorting to firing. The motive of the occurrence, according to the complainant, is that some theft incident had taken place two months earlier to the occurrence, in the house of Asghar Ali who suspected Jan Muhammad, etc. They were asked to take oath on Holy Qur'an to prove their innocence for which they felt incensed, and in order to avenge this disgrace, they murdered Asghar Ali.
The petitioner was arrested on 2-11-1998. The challan has not been submitted even in the prosecution branch so far. No recovery has been effected from the petitioner. Only one empty was recovered from the spot which is alleged to have been fired from the gun of Jan Muhammad.
Learned counsel for the petitioner contends that the, petitioner is only attributed Lalkara. There is previous enmity between the parties. He has been falsely implicated by the complainant on account of being brother of Jan Muhammad who allegedly fired at the deceased. He is in jail since 2-11-1998 and the challan has not been presented even in the prosecution branch so far, and as such is entitled to grant of bail. .
Mr. Muhammad Akrarn Qureshi, Advocate for the complainant assisted by State Counsel has opposed the grant of bail on the ground that ' petitioner is also involved in many other criminal cases. Therefore, he is not entitled to the concession of bail.
Heard. Record perused.
According to the version of the F.I.R. the petitioner is only attributed Lalkara. It is his brother, Jan Muhammad, who allegedly fired at the deceased. It is also stated in the F.I.R. that while running away the accused were firing but this fact is not established during the investigation. The Investigating Officer states that only one empty was recovered from the place of occurrence which was fired by Jan Muhammad, co-accused. No other empty having been found at the spot, version of the prosecution that the accused resorted to firing to secure their escape is not established. The petitioner is the real brother of Jan Muhammad, the main accused, therefore, his plea of false implication on that account, cannot be lightly ignored. Admittedly the complainant and petitioner are inimical towards each other. Many criminal cases stand registered against both the parties at each others... The petitioner, although, was involved in case F.I.R. No.191 of 1994 alongwith others, for raising Lalkara, but he has been acquitted in that case. Similarly, case F.I.R. No.224 of 1994 under Arms Ordinance also stands registered against him but the record does not show that he was ever convicted in this case. The third case registered against him vide F.I.R. No.67 of 1997 under section 324/337/148/149, P.P.C. is still pending adjudication. The prosecution has not been able to show his conviction in any case, so far therefore, his plea that he has been falsely involved in this case due to enmity, cannot be brushed aside. He is behind the bars for more than one year and the allegation against him is only of raising Lalkara which needs further probe to attract applicability of section 34, P.P.C.

In the light of circumstances stated above, petitioner is allowed bail in the sum of Rs.2,00,000 (Rupees two lacs) with two sureties each in the like amount to the satisfaction of the trial Court.

H.B.T./A-89/L Bail granted.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1847 #

2000 P Cr. L J 1872

[Lahore]

Before Khalil-ur-Rehman Ramday and Asif Saeed Khan Khosa, JJ

MUHAMMAD AHMAD---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.510, Murder Reference No.242 and Criminal Revision No.558 of 1993, heard on 29th September, 1999.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Both eye-witnesses were independent witnesses of occurrence and had offered reasonable explanation for their presence at the place of occurrence at relevant time---Testimony of said witnesses inspired confidence---Murder in question having been committed in a busy place in broad daylight, there was no possibility of occurrence having gone un-witnessed or that assailant having escaped unidentified--F.I.R. was promptly recorded which had eliminated possibility of any deliberation or fabrication in the same---Three crime empties of .12 bore gun found from place of occurrence and gun recovered at instance of accused, were sent to Forensic Science Laboratory---Report of Forensic Science Laboratory showed that two of empties. had been fired from right barrel of said gun while third crime-empty had been found fired from left barrel of gun---Such fact was a further piece of evidence which had corroborated prosecution case and had established its veracity---Medical evidence had corroborated eye-witness account---Alleged one discrepancy with respect to injury received by deceased in his left arm-pit that doctor had found to be wound of exit, could not be fatal to prosecution case because it would be unfair to expect from an eye-witness to follow every pellet coming out of the cartridge and to give precise spot where every such pellet had landed---No exception, in circumstances, could be taken to finding of guilt recorded by Trial Court against accused---Conviction and sentence awarded to accused were maintained---Accused having failed to prove that at time of occurrence he was minor aged 17 years, his case would not fall under S.308, P.P.C. as claimed by hittl---Accused having taken life of an innocent person only to satisfy his vanity and ego, no case for showing any sympathy or leniency to him was made out---Death sentence awarded to accused by Trial Court, was confirmed.

Dr. Khalid Ranjha for Appellant.

S.D. Qureshi for the State.

Shabbar Raza Rizvi Syed for the Complainant.

Date of hearing: 29th September, 1999.

JUDGMENT

KHALIL-UR-REHMAN RAMDAY, J.--- One Muhammad Ahmad was tried by a learned Additional Sessions Judge at Okara for the murder of one Dur Muhammad and having been found guilty of the said charge, the said Muhammad Ahmad was convicted under section 302(b), P.$.C. and was punished with death.

Murder Reference No.242 of 1993 seeks confirmation of the said sentence of death awarded to Muhammad Ahmad convict who filed Criminal Appeal No.510 of 1993 to impugn the above-noticed conviction and punishment recorded against him. Gul Muhammad complainant approached this Court through Criminal Revision No.558 of 1993 and prayed for a direction to the convict to pay compensation to the legal heirs of the deceased. All these matters are being disposed of together through this, single judgment.
The occurrence in question had taken place on 30-8-1992 at about 1-30 p.m. in the shop of Dur Muhammad deceased in Adda Malik Shah in the area of Village Lale Wala about six kilometres from Police Station Hujra Shah Muqeem of District Okara and the said occurrence had been reported at the said police station by Gul Muhammad complainant at 2-30 p.m. the same day i.e. on 30-8-1992.
Narrating the occurrence and the background leading thereto Gul Muhammad complainant who was an elder brother of Dur Muhammad deceased, had mentioned that the said deceased had an Agency/shop for fertilizer and oil at the abovementioned Adda Malik Shah; that at the time of occurrence he was sitting in the said shop alongwith his deceased brother and were talking while their other brother, namely, Ali Muhammad (given up) and one Muhammad Ali (P.W.8) were standing outside the shop under a Keeker tree and were talking; that in the meantime Muhammad Ahmad accused armed with a .12 bore gun reached there and after entering the abovementioned shop fired a shot which hit the deceased on his chest, abdomen and left arm and that Dur Muhammad deceased tried to rush into the store to save his life at which Muhammad Ahmad accused fired two further shots which hit the deceased at his left back and left armpit who consequently fell down injured. The complainant had added that they tried to apprehend Muhammad Ahmad accused but he ran away extending threats. The complainant had further disclosed that Dur Muhammad deceased had died at the spot.
The reason alleged for this murder was that about 1-1/2 months prior to the present occurrence, Dur Muhammad deceased and Muhammad Ahmad accused had had a quarrel on account of grant of way and it was for the said reason that Muhammad Ahmad accused had done Dur Muhammad deceased to death.
Khan Muhammad, Inspector/S.H.O. visited the place of occurrence where he found blood-stained earth which he took into possession vide memo. Exh.P.F. and where he had also allegedly found three crime-empties (P.6 to P.8) which he had seized vide memo. Exh.P.G. The said Investigating Officer arrested Muhammad Ahmad accused on 6-9-1992 and it was on 10-9-1992 that he allegedly led to the recovery of a gun (P.5) which was secured vide memo. Exh.P.C.
Muhammad Safdar, F.C. (P.W.4) carried the three crime-empties to the Forensic Science Laboratory on 8-9-1992 and on 17-9=1992 the said P.W. carried the gun (P.5) and deposited the same with the Forensic Science Laboratory on the said date. According to the report (Exh.P.M.) of the Forensic Science Laboratory all the three crime-empties had been found to have been fired from the gun (P.5) allegedly recovered at the instance of Muhammad Ahmad appellant.
When confronted with the prosecution case under section 342, Cr.P.C., Muhammad Ahmad appellant pleaded innocence and claimed that he had been falsely involved in the present case which was an un-witnessed occurrence, on account of enmity.
Canvassing acquittal for the appellant, his learned counsel inter alia argued that the two witnesses were closely connected with the deceased and were chance witnesses of the occurrence in question; that the medical evidence did not support the ocular testimony; that the evidence of recoveries was a fabrication; that the motive did not stand proved on record and that in the circumstances it could not be said that the prosecution had successfully proved its case against Muhammad Ahmad appellant.
Gul Muhammad P.W., as has been noticed above, was a brother of the deceased. Not even a suggestion had been made to him by the defence that he had no connection whatsoever with the agency/shop which is the place of occurrence or that lie had any motive or reason to falsely implicate the appellant in the occurrence in question. Gul Muhammad complainant, thus, going to the Agency/shop in question which was the shop of his brother was not a claim which could be said to be unreasonable or implausible. It was on a question put by the defence that Muhammad Ali P.W. declared that he was a tenant of Haji Muhammad Sabir P.W. He had explained his presence at the place of occurrence by submitting that he had gone to the place of occurrence to fetch fertilizer. As has been mentioned above this P.W. is a tenant of Haji Muhammad Sabir P.W. and the said Haji Muhammad Sabir P.W. is a brother of the widow of Dur Muhammad deceased. The purchase of fertilizer etc. by Haji Muhammad Sabir P.W. from the Agency/shop of his cousin/brother-in-law was a claim which was more than plausible and in the circumstances no serious exception could be taken to the presence of Muhammad Ali P:W. at the place of occurrence who had claimed that he had gone there to get fertilizer being a tenant of Haji Muhammad Sabir P.W. Even to this Muhammad Ali P.W. no question had been put which could even remotely suggest that this P.W. or even his landlord namely, Haji Muhammad Sabir P.W. had any animosity or ill-will against the appellant which could have prompted them to maliciously implicate Muhammad Ahmad appellant in the occurrence in question.
Both these eye-witnesses are thus, independent witnesses of the occurrence in question who have offered reasonable explanations for their presence at the place of occurrence at the relevant time. Their testimony inspires confidence.
It may be added here that the murder in question had been committed in a busy place in broad daylight. There was thus, no question of the occurrence in question having gone un-witnessed or the assailant having escaped unidentified. It had been suggested to the complainant that they had some kind of enmity with some other persons of the area also. This was obviously done to create an impression that tote said murder had not been witnessed by any one and that the deceased could have been killed by one such enemy. This claim is without merit. If the occurrence had gone un-witnessed and if the complainant/prosecution was to involve some one as the culprit on the basis of mere suspicion then the real target of this suspicion would be the alleged enemies of the deceased and not the appellant with whom the complainant party had no background of any ill-will or animosity.
The occurrence in question had taken place at about 1-30 p.m. on 30-8-1992. The place of occurrence was about 6 Kms. from Police Station Hujra Shah Moqeem and the F.I.R. of the present occurrence was recorded at the said police station at 2-30 p.m. i.e. within one hour of the occurrence. It may be added that according to Dr. Sagheer Ahmad (P.W.3), the postmortem examination of the dead body of Dur Muhammad deceased had been conducted at 4-30 p.m. within about three hours of the 'occurrence in question which is further evidence of the fact that the F.I.R. of the present case would have been recorded well before 4-30 p.m. This was thus, a promptly recorded F.I.R. which eliminates the possibility of any deliberations or fabrications in the said F.I.R.
Three crime-empties of .12 bore (Exhs.P.6 to P.8) had been found at the place of occurrence. The same had reached the Forensic Scien Laboratory on 8-9-1992 as per Muhammad Afzal, F.C. (P.W.4). The gun P.5 was recovered at the instance of Muhammad Ahmad appellant on 10-9-1992 which was sent to the Forensic Science Laboratory on 17-9-1992, According to the report of the Forensic Science Laboratory (Exh.P.M.) two of these empties had been found to have been fired from the right barrel of the said gun while the third crime-empty had been found to have been fired from the left barrel of the gun This is a further piece of evidence which corroborates the prosecution case and establishes its veracity
It was argued by the learned counsel for the appellant that the medical evidence ran counter to the ocular testimony. It had been claimed by the eye-witnesses that Muhammad Ahmad appellant fired a shot from a .12 bore gun on the deceased which caused injuries on his chest, abdomen and left arm; that the deceased then ran into the store to save his life when the appellant fired shots hitting the left back and the left armpit of the said deceased. According to the post-mortem examination report, wounds of entry had been found on the left front chest, left side of the abdomen on the back of chest and on- the left fore-arm. To this extent the medical evidence corroborated the eye-witness account. It was only with respect to the injury allegedly received by the deceased in his left arm-pit that the doctor had found the same to be a wound of exit. This one discrepancy, in our view, cannot be declared to be fatal to the prosecution case because it would be unfair on our part to expect from an eye-witness to follow every pellet coming out of a cartridge and to give the precise spot where every such pellet had landed. As has been noticed above, most of the injuries alleged by the prosecution were found to exist on the body of the deceased as alleged. Consequently, we find that present was not the case where it could be said that the medical evidence had falsified the eye-witness account offered by the
Having, thus, examined the entire evidence available on record and having heard the learned counsel for the parties; we find that no exception .could be taken to the finding of guilt recorded by the learned trial Judge against Muhammad Ahmad appellant. His conviction under section 302(b), P.P.C. is, therefore, maintained.
This brings us to the question of confirmation or otherwise of the sentence of death awarded to Muhammad Ahmad appellant.
The main emphasis of the learned counsel for the appellant in praying for lesser penalty for the appellant was his alleged minority and young age. While the present matters were still pending disposal, an application bearing Criminal Miscellaneous No.790/M of 1999 was submitted under section 428 of the Cr.P.C. read with section 561-A of the same Code submitting therein that Muhammad Ahmad appellant was a minor; that his date of birth was 15-3-1975; that it was an elder brother by the name of Mehmood who was born in 1971 and not the appellant and that the case of the appellant thus, fell within the purview of section 308 of the P.P.C. It had consequently, been prayed that the appellant be allowed to produce a copy of the Register of Births carrying his date of birth and copy of Register, of Deaths mentioning the death of the abovementioned alleged brother of the appellant namely, Mehmood. This application was filed on 13-5-1999 and we dismissed the same on 1-6-1999 on the ground that when the appellant had been examined at the trial under section 342 of the Cr.P.C. he had mentioned his age to be 23 years and was, thus, 22 years of age at the time of occurrence and that he had taken no exception to the recording of the said age during the course of his said statement; that the plea of minority had not been taken by him during the course of investigation nor had any such plea been taken even during the course of trial; that the conviction of the appellant had been recorded by the learned trial Judge on 25-7-1993; he had filed the appeal against the said judgment of conviction on 27-7-1993 and even in the memorandum of appeal, no such plea had been taken; that it was after six years of his conviction and of his filing the present, appeal that he had suddenly woken to realize that he was not 22 years of age at the time of occurrence and was only 17 years old at that time. The appellant did not challenge this order passed by this Court but at the time of arguments, the learned counsel for the appellant again started pressing, the point and this time rather vehemently and forcefully mat the appellant was 17 years of age at the time of occurrence and that this Court was falling in error in not permitting the appellant to prove, this fact which could lead this Court to an unjust decision.
In spite of the fact that we had earlier dismissed this plea, as noticed above, we gave further thought to this matter and realized that the ultimate obligation to do justice to the parties lay on this Court and further that any negligence on the part of the appellant should not be permitted to let this Court reach a decision which might not be just. We also came to the conclusion that if the appellant was in fact less than eighteen years of age at the time of occurrence then the responsibility of wrongly 'punishing him under section 302 of the P.P.C. with death and not extending to him the concession which was allowed to him by law i.e. convicting and punishing him under section 308, P.P.C. would be a grave fault on our part.
Consequently, we decided to undertake an exercise to determine the age of the appellant at the time of the present occurrence.
In reply to the abovementioned application bearing Criminal Miscellaneous No.790/M of 1999, it had been submitted by the complainant that the copy of the Register of. Births relating to Muhammad Ahmad appellant which had been filed by the said appellant alongwith the abovementioned application showing the appellant to have born on 15-3-1975, was false. The complainant on the- other hand submitted another attested copy of the birth entry relating to Muhammad Ahmad-appellant according ~to which the said appellant had been born on 30-1-1971.
Faced with this situation, where two different entries of the date of birth of the same Muhammad Ahmad-appellant were placed on record, we, through our order, dated 21-9-1999, directed the learned Additional Sessions Judge at Depalpur to seize the record relating to the said entry of birth and to send the same to this Court through a special messenger so as to be available before this Court on the next day and further directed him to bind the concerned Secretaries of the Union Council who had attested these copies, to appear before this Court the next day i.e. on 22-9-1999, to confirm the issuance of the above-noticed certificates. The said learned Additional Sessions Judge submitted a written report dated 21-9-1999 that Muhammad Khalid was the Secretary of the Union Council who had attested the birth certificate produced by the appellant and that Muhammad Iqbal was the Secretary who had issued and attested the certificate in question produced by the complainant and further that this Muhammad Khalid, Secretary had disappeared and was not traceable either in his office or in his house and that even the relevant Registers of Births and Deaths were not available either in the said office of the Secretary -of Union Council No.71 or even at his residence. We then adjourned the matter to 29-9-1999 and issued warrants for the, arrest of Muhammad Khalid, Secretary and for his production before this Court on the said date of hearing. On 22-9-1999, the concerned Project Manager namely, Muhammad Azam and the former Secretary of the concerned Union Council namely Muhammad Iqbal had, however, entered appearance before us. The said Muhammad Iqbal submitted before us that he was the one who had supplied, to the complainant a copy of the Register of Births relating to Muhammad Ahmad-appellant according to which certificate of Muhammad Ahmad7appellant was born on 30-1-1971 and that this copy prepared by him was the correct and true reproduction of the original record and further that the copy of the said Register of Births produced by the appellant before this Court, according to which the appellant had born on 15-3-1975 was incorrect and false. This Muhammad Iqbal had added that the brother of Muhammad Ahmad appellant as also his Chachazad namely, Shah Behram Bodla, who happened to be a Member of Zila Council from the constituency in which Union Council No.71 fell, had exercised pressure on him to supply a certificate showing the appellant to be a minor and that he had refused to oblige them.
On 29-9-1999, the said Muhammad Khalid, who was the Secretary, of the concerned Union Council No.71 appeared before us. Muhammad Azam, Project Manger, Hujra Shah Moqeem who was the supervisory officer of the said Union Council and Muhammad Iqbal abovementioned who was a former Secretary of Union Council No.71 were also present on the said date. We asked them to make statements about the matter in question on oath which statements were accordingly made by them and recorded by us on 29-9-1999. All these three persons were offered to the learned counsel for the parties for cross-examination and were in fact so cross-examined.
Muhammad Khalid, Secretary of Union Council No.71 stated that he was the one who had issued and attested a birth certificate of Muhammad Ahmad-appellant according to which he had been born on 15-3-1975. A copy of this certificate which was produced by the appellant and was on record, was marked by us as Exh.C./1. He admitted his signatures on the copy of the said certificate and added that a certificate relating to the death of one Mehmood Ahmad son of Ghulam Rasool who is stated to have died op 19-2-1971 was also issued by him. This certificate was marked as Exh.C./2. When questioned by the learned counsel for the complainant, this Muhammad Khalid admitted that he had been posted as Secretary of Union Council No.71 at the instance of a brother of Muhammad Ahmad appellant namely, Noor Muhammad and at the instance of their Chachazad namely Shah Behram, Member of the Zila Council because no other Secretary was willing to be posted to the said Union Council as that said Noor Muhammad and Shah Behram were desirous of getting a fake copy of birth entry of Muhammad Ahmad and about the death of his alleged brother namely, Mehmood Ahmad and no Secretary was ready to oblige; that the registers in question carrying the record of the abovementioned birth and death-were not available either in his office or at his house as the same had been forcibly taken away by the said Noor Muhammad and Shah Behram; that the said certificates i.e. Exh.C./1 and Exh.C./2 were false; that he had issued these false certificates under coercion and threat from the- abovementioned Noor Muhammad and Shah Behram, who asked him to issue the same on gun point; that he had intentionally omitted to put dates under his signatures on these certificates only to leave an indication that he had put his signatures on them under coercion; that on 21-9-1999 when this Court had passed orders for seizing of the Registers in question and for his appearance before this Court the next day, he was present in his house at about 11-30 a.m. when the abovesaid Noor Muhammad and Shah Behram came to his house and told him that the learned Additional Sessions Judge of Depalpur was coming to conduct a raid and that he should slip away and accompany them to their Dera; that making an excuse he did not accompany them to their Dera and instead slipped away on his own and finally that the certificates in question issued by him were not genuine. He had further stated that he had filed a Writ Petition No. 18072 of 1999 complaining of the conduct of the said Noor Muhammad and Shah Behram and seeking protection from this Court for his life. Muhammad Azam, Project Manager, who was the incharge of Union Council No.71, stated that he accompanied the learned Additional Sessions Judge on 21-9-1999 and submitted how Muhammad Khalid, Secretary had disappeared on the said date and how the registers in question were not available anywhere despite a search made by them. He added that the complainant of this case namely, Gul Muhammad had submitted an application for the supply of birth certificates of the appellant and of all his brothers namely, Subah Sadiq, Noor Muhammad -and Ali Haider and that he had allowed this application on 15-3-1999 and had marked the same to the concerned Secretary of the Union Council for the grant of these certificates. A photo copy of this application was produced before us which was marked as Exh.C./7. Muhammad lqbal, who remained the Secretary of the Union Council in question till the end of March, 1999 also made a statement before us on oath. He submitted that he was the one who had issued certificates relating to birth of Muhammad Ahmad appellant -- appellant and relating to the birth of his brothers and his sister namely, Sardar Begum. These certificates were issued by him on 25-3-1999 in pursuance of an order passed. by the Project Manager on 15-3-1999. These certificates were marked by us as Exh.C./3, Exh.C./4, Exh.C./5 and Exh.C./6. He had added that since he had not obliged Noor Muhammad and Shah Behram with a false certificate relating to the birth of Muhammad Ahmad-appellant, therefore, the said Shah Behram had got him transferred from Union Council No.71 and he left the charge of the said Union Council sometimes after 25-3-1999. He had further stated that he had issued the abovementioned certificates of birth exactly in accordance with the entries which. existed in the concerned registers and that because of the tussle between the two sides relating to the said matter of birth of the appellant, he had prepared photo copies of the said Register of Births and had kept the same with him to secure him against the foul play. He produced photo copies of the said pages of the said register before this Court which were marked by us as Exh.C./8, Exh.C./9, Exh.C./10 and Exh.C./11.
From the above-narrated facts and circumstances, we are of the view that the certificate relating to the birth of Muhammad Ahmad appellant produced by the appellant before this (Exh.C./1), according to which certificate, the appellant had allegedly been born on 15-3-1975, was a false document 'and that the actual date of birth of the appellant was 30-1-1971.
The appellant was, thus, more than 21 years of age at the time of occurrence and this age of the appellant also corresponded with the age as disclosed by the appellant himself at the trial through the statement made by him under section 342 of the Cr.P.C.
Consequently, we hold that the appellant was not a minor at the time of occurrence and his case, thus, did not fall within the purview of section 308 of the P: P. C.
In view of the fact that the appellant had taken the life of an innocent person only on account of his vanity and ego because of the dispute between the appellant and the deceased regarding the giving of way, no case for showing any sympathy or leniency to the appellant is made out. Therefore, the sentence of death awarded to the appellant by the learned trial Judge in pursuance of his conviction under section 302(b), P.P.C. is confirmed.
As the learned trial Judge had passed no order under section 544-A of the Cr.P.C" we issued notice to the appellant to show cause why he should not be directed to pay compensation to the heirs of the deceased in terms of section 544-A of the Cr.P.C. Dr. Khalid Ranjha, Advocate appearing for the appellant accepted this notice. Having heard the parties, we direct Muhammad Ahmad-appellant to pay an amount of Rs.50,000 to the heirs of the deceased as compensation or to undergo six months' S:I. in default of payment of the same.
Since we have found that the certificate relating to birth of the appellant (Exh.C./1) was a false document and since such a forged and false document had not only been prepared but had in fact been used and since it had also come on record that Noor Muhammad and Shah Behram had stolen the registers in question, therefore, we direct the S.S.P. of Okara to register or cause to be registered a criminal case with respect to the commission of the above-noticed offences and others,. if any, found committed and then to proceed with the same in accordance with law. A copy of this judgment, copies of the statements, dated 29-9-1999 made .by Muhammad Azam, Muhammad Iqbal and Muhammad Khalid above-referred and copies of Exhs.C.l/ to C./11 shall be sent to the said S. S. P. who is furt4er directed to send a fortnightly report about the progress made in the matter, to' the Registrar of this Court.
Murder Reference No.242 of 1993, Criminal Appeal No.510 \of 1993 and Criminal Revision No.558 of 1993 are disposed of in the above terms:

Sentence of death confirmed.

H.B.T./M-226/L Appeal dismissed

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1868 #

2000 P Cr. L J 1893

[Lahore]

Before Riaz Kayani, J

ALLAH YAR‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.4001/B of 1999, decided on 4th August, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.409, 419, 420, 468 & 471‑‑Bail, grant of‑‑‑Age of accused was 60/65 years and whether he had identified vendors of land in dispute, who admittedly were dead at time when mutation in . respect of land in question was entered, knowingly and for monetary benefit, was yet to be seen whets evidence would come on record during trial‑‑‑Investigating Officer had admitted that main culprit, who was Patwari and who got the said mutation entered, had not yet been arrested‑‑Case of further inquiry having been made out against accused, he was enlarged on bail.

Nazar Abbas Syed for Petitioner.

Malik Muhammad Aslam for the State.

ORDER

Allah Yar petitioner has sought bail in F.I.R. No.653 registered with Police Station Sadar, Chiniot, District Jhang on 11‑10‑1998 under sections 419, 420, 468 and 471 read with section 409, P.P.C.

The facts as they emerge from the F.I.R. lodged at the instance of Assistant Commissioner, Chiniot is that oral Mutation No.436 was entered on 6‑2‑1996 by Munshi Muhammad Rafiq, Patwari Halqa through which 132 Katials, 12 Marlas was intended to be alienated in favour of the vendees for consideration of Rs.1,20,000. Muhammad Saeed Akhtar son of Khan Muhammad and Niaz Ahmad son of Abdul Aziz submitted. a joint application that their father Khan Muhammad died on 31‑7‑1993 and Mst. Muhammad Jan died prior to him while the vendees were tenants of land mutated and they in connivance with the Numberdar and Khewat Dar got a fake and fabricated Mutation No.436, dated 6‑2‑1996. After due inquiry it came to light that the applicant namely Khan Muhammad and Mst. Muhammad Jan were not alive and did not sign the mutation. Although the petitioner was not named in the F.I.R. yet subsequently, during investigation it was found out that he had identified the vendor at the time of entrance of the mutation.
Learned counsel contends that the petitioner had gone to the Patwari in connection with his job being an illiterate person of the age of 70 years, the Patwari got his thumb‑impression purporting to identify the vendor of the mutation now under challenge. It is contended that no benefit accrued to the petitioner due to this act of fabrication. It is further contended that the petitioner is behind the bars since October, 1998 and he is m more required for investigation purpose. Conversely, learned State Counsel has opposed the grant of bail.
I have considered the arguments of the respective learned counsel and have gone through the record. The Investigating Officer present in Court admits that the age of the petitioner is 60/65 years. Whether the petitioner identified the vendor who were admittedly dead at the time when the mutation was entered, knowingly and for monetary benefit is yet to be seen when the evidence comes on record during the trial. The Investigating Officer admits that the main culprit i.e. Patwari has not yet been arrested. This being the position, the petitioner has made out a case of further inquiry. Resultantly accepting his application I enlarge him on bail, provided he furnishes security in the sum of Rs.30,000 with one surety in the like amount to the satisfaction of the Judicial/Duty Magistrate.

H.B.T./A‑90/L Bail granted.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1872 #

2000 P Cr. L J 1896

[Lahore]

Before Asif Saeed Khan Khosa, J

ZAFRULLAH alias PHULA‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.7235/B of 1999, decided on 18th January, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) S.10/11‑‑‑Bail, grant of ‑‑‑F.I.R. was lodged with a delay of five days ‑‑‑Nikahnama available on record had shown that alleged abductee had contracted Nikah with co‑accused and affidavit sworn by alleged abductee had controverted allegation levelled against accused and his co‑accused in F.I.R.‑‑‑Alleged abductee in her statement made under S.164, Cr.P.C. had mentioned story quite ‑different from that recorded in F.I.R. and in her statement she denied allegation of her abduction and Zina‑bil‑Jabr against accused‑‑‑Case against accused calling for further inquiry, bail was granted to accused.

S.M. Hasnain for Petitioner.

Mian Ghulam Hussain for the State.

ORDER

Zafrullah alias Phula petitioner is an accused person in case F.I.R. No.211 registered at Police Station Kassoki, District Hafizabad on 20‑7‑1999 for offences under section 10/ 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The allegations against the petitioner and his seven co‑accused are that they had abducted Mst. Shabana Kausar, sister of Zulfiqar Ali complainant at about mid‑night during the night between 14/15‑7‑1999 and subsequently, Sarfraz Ahmed co‑accused had committed Zina‑bil‑Jabr with her. After his arrest by the local police in connection with this case the petitioner applied for his post‑arrest bail before the learned Court of Session, Hafizabad but his application in that regard was dismissed by the learned Additional Sessions Judge, Hafizabad vide order, dated 18‑9‑1999. Hence the present petition before this Court.

After hearing the learned counsel for the parties and going through the documents annexed with this petition it has been noticed that the F.I.R. in this case had been lodged with a delay of five days. A Nikahnama, dated 24‑7‑1999 is available on the record according to which the alleged abdcutee Mst. Shabana Kausar had contracted Nikah with Sarfraz co‑accused. The learned counsel for the petitioner has also relied upon an affidavit sworn by Mst. Shabana Kausar belying and controverting the allegations levelled against the petitioner and his co‑accused in the F.I.R. Although the alleged abductee's age is recorded in the F.I.R. as 12/13 years yet the abovesaid Nikahnama records her age to be 20 years. The learned counsel for the petitioner has also relied upon a copy of the birth entry of the said lady recorded at the Local Union Council showing her age to be 22 years at the time of the alleged occurrence. Mst. Shabana Kausar had also made a statement under section 164, Cr.P.C. on 26‑7‑1999 wherein she had mentioned performance of her Nikah with the petitioner's co‑accused namely Sarfraz Ahmed on 24‑7‑1999. The said statement under section 164, Cr.P.C. carried a story ‑different from that recorded in the F.I.R. according to the said statement the alleged abdcutee had been travelling from place to place with the accused party of this case in public vehicles without any protest and had been residing with them at different places without having tried to run away.‑ The said conduct of the lady prima facie contradicts allegations of her forcible abduction. It has pertinently been noticed that in the said statement under section 164, Cr.P.C. Mst. Shabana Kausar had not levelled any allegation of Zina‑bil‑Jabr against the present petitioner.
For what has been observed above the case against the petitioner calls for further inquiry into his guilt within the purview of subsection (2) of section 497, Cr.P.C. This petition is, therefore, allowed and the petitioner is admitted to bail in the sum of Rs.50,000 (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the learned trial Court.

H.B.T./Z‑18/L Bail granted.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1893 #

2000 P Cr. L J 1900

[Lahore]

Before Dr. Munir Ahmad Mughal, J

GHULAM RIAZ ‑‑‑ Petitioner

versus

THE STATE‑‑Respondent

Criminal M6cellaneous No.3491B of 1998, decided on 24th July, 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Prohibition (Enforcement of Hadd) Order .(4 of 1979), Art.3/4‑‑‑Bail, grant of‑‑‑Bail was sought by accused on ground that jail staff demanded illegal gratification from accused and on his refusal he was tortured and mala fidely involved in case‑‑‑Accused who was, in custody in jail staff having levelled allegations of torture and mala fides on complainant, case of further inquiry had been made out‑‑‑Accused was granted bail.

N.A. Butt for Petitioner.

Shahid Amin for the State.

ORDER

The petitioner is involved in a case F.I.R. No.332, dated 26‑9‑1997 for offences under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 registered at Police Station City Mianwali for the alleged recovery of 25 grams of heroin and 4 grams of Charas from his Chappal at the main gate of the jail.

Earlier the bail was refused by the learned Sessions Judge, Mianwali on 5‑5‑1998.
The bail is pressed on the grounds that the jail staff demanded illegal gratification from the petitioner which was not paid and thereafter he was tortured and with a view to make out some defence the petitioner was involved in the instant case and that there was no occasion to procure intoxicant from am. quarter and that the present case is better example of misuse of powers by the State functionaries. It is further submitted that the Control o: Narcotic Substances Act, 1997 has since been promulgated but even then case against the petitioner has been registered under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 with mala fide intention because the sentence provided under section 9 of the Control of Narcotic Substances Act, 1997 provides sentence only two years and the offence would be bailable one and that section 9 (ibid) was not inserted with mala fide intention.
The bail is opposed on the grounds that the petitioner is specifically named in the F.I.R. and that recovery has been effected from his Chappal.

I have given due consideration to the valuable arguments on both the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs.10,000 with one surety in the like amount to the satisfaction of learned trial Court.

H. B. T./G‑31/L Bail granted.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1896 #

2000 P Cr. L J 1902

[Lahore]

Before Khawaja Muhammad Sharif, J

SHAMIM BIBI---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.7207/B/C of 1999, decided on 26th January, e2000.

Criminal Procedure Code (V of 1898)

----S. 497(5)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Bail, cancellation of---Allegation against accused was that he committed Z-ina with victim girl who became pregnant and sister of accused alongwith others got the child abortioned---No mala fide or ulterior motive had been alleged against the victim girl---Medical examination of the victim girl was conducted after the abortion---Consideration for grant of bail before arrest and bail after arrest being totally different order granting bail to accused passed by Trial Court was set aside and bail granted to accused was ordered to be cancelled.

Ch. Anwar-ul-Haq Punnu for Petitioner, Malik Muhammad Aslam for the State.

Ch. Najeeb Faisal for Respondent.

ORDER

This is an application for cancellation of pre-arrest bail granted to respondent No.2 by learned Additional Sessions Judge vide his order, dated 17-12-1999.

Allegation against respondent No.2 is that he committed Zina With Mst. Shamim daughter of complainant and she became pregnant. Upon coming to know of this fact, sister of respondent No. 2 alongwith others got the child abortioned.
Learned counsel for petitioner submits that respondent No.2 is named in the F.I.R., he has committed a heinous offence, there is no mala fides on the part of the complainant to falsely involve respondent No.2 and that consideration for the grant of bail before arrest and bail after arrest are totally different.
Learned counsel for respondent No.2 submits that F.I.R. is pack of lies, there is delay of 3 months in lodging the F.I.R. without any proper explanation and that the order of learned Additional Sessions Judge is neither arbitrary, nor capricious or against the record. Further submits that according to school leaving certificate, date of birth of respondent is 4-1-1982 and that case of respondent is fully covered by subsection (2) to section 497, Cr.P.C. which requires further inquiry. into guilt of the petitioner. Adds that_ there were no fresh marks/signs of abortion, -as per M. L. R.
Learned counsel for the State submits that nobody would implicate any person for committing the Zina with her.
I have heard learned counsel far parties. No mala fides or ulterior motive has been alleged against the petitioner. Zina was committed with the petitioner. Medical examination of petitioner was conducted on 24-.11-1999 when the abortion was carried out on 13-10-1999. Considerations for the grant of bail before arrest and bail after arrest are totally different. It was not a case for bail before arrest. So, this petition is accepted and the order, dated 17-12-1999 passed by learned Additional Sessions Judge, Narowal are set aside and bail granted to respondent No.2 is cancelled. Any observation made in this order will not prejudice the case of either party in any future proceedings.

H.B.T./S-53/L Bail cancelled.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1900 #

2000 P Cr. L J 1916

[Lahore]

Before Khawaja Muhammad Sharif J

MUHAMMAD ASHRAF and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1175 of 1998, heard on 19th April, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Nobody was named in F.I.R. and no description of accused had been given therein‑‑‑Mere on the statement of wife of deceased that she had identified accused in the Court at time of trial was not enough to maintain conviction against accused on charge of capital punishment‑‑‑No motive whatsoever had been given either by first informant or by prosecution witness either in F.I.R. during investigation or before Trial Court‑‑‑No evidence was on record to show that anybody had seen accused committing murder of deceased‑‑‑Alleged recovery of Chhuri effected after one month and eleven days of occurrence and that too from an abandoned place which was accessible to everybody, could not be believed‑‑‑Witness of extra judicial confession of accused did not say anything that what words were used by accused while making extra judicial confession‑‑‑Mere saying that accused had confessed their guilt was not sufficient to believe same especially when statement of witness in that regard was recorded 7/8 days after occurrence and accused were arrested about one month after alleged extra judicial confession‑‑‑Prosecution had failed to prove its case against accused beyond any shadow of doubt and prosecution case being full of doubt, benefit of same had to go to accused‑‑‑Conviction and sentence awarded to accused by Trial Court were set aside and accused were acquitted from the charge against them.

1974 SCMR 175 and PLD 1978 Kar. 541 ref.

Syed Zahid Hussain Bukhari for Appellants.

Abdul Qayyum Anjam for the State.

Taqi Ahmad Khan for the Complainant.

Date of hearing: 19th April, 2000.

JUDGMENT

This judgment will dispose of Criminal Appeal No. 1175 of 1998 filed by Muhammad Ashraf and Muhammad Latif, appellants who were convicted under section 302/34, P.P.C. and sentenced to imprisonment for life by learned Additional Sessions Judge, Sheikhupura vide his judgment, dated 28‑11‑1998 for committing the Qatl‑e‑Amd of Haji Umar Din.

Occurrence in this case had taken place at 3 a.m. (midnight) on 28‑4‑1997 within the revenue estate of Kot Pindi Das which is at a distance of 12 miles from Police Station Factory Area, Sheikhupura while the matter was reported to police at 3‑15 a.m. (midnight) on same night by Muhammad Rafique (P.W.3) through complaint Exh.P.D. and that formal F.I.R. Exh.P.D./1 was recorded by Mukhtar.Ahmad, S.‑I. (P.W.12).
Briefly stated facts of the case were that ‑at about 1‑00 p.m. on 28‑4‑1997, the complainant heard shrieks of females from the house of his Phupa, whereupon he alongwith his son Abdul Latif climbed upon the roof of their house and saw Haji Umar Din lying on floor in the pool of blood. His both wives, namely, Sakina Bibi and Siddiquan Bibi were weeping. They then proceeded to the house and saw that Haji Umar Din had sustained cuts with sharp‑edged weapon below his neck and right side of the chest which was profusely bleeding. In injured condition, Haji Umar Din was being taken 'to hospital but in the way, he succumbed to the injuries.
After registration of the formal F.I.R. Muhammad Ashiq, S.‑I. (P.W.10) proceeded to Mayo Hospital, prepared the inquest report Exh.P.G. and also injury statement Exh.P.K. He then visited the spot and took into possession the blood‑stained earth vide memo. Exh.P.A. The investigation on 23‑5‑1997 was transferred from him and then was taken over by Abdur Rashid, A. S.‑I. (P.W.11) who arrested the accused Muhammad Ashraf and Muhammad Latif on 5‑6‑1997. Muhammad Latif while in police custody on 9‑6‑1997 led to the recovery of Chhuri P.4 which was taken into possession vide memo. Exh.P.C. After completion of the investigation, both the accused were challaned to face the trial.
Prosecution in order to prove its case produced 12 witnesses in all and then the learned Assistant District Attorney tendered in evidence Reports of the Chemical Examiner Exh.P.M. and Exh.P.N. and also Reports of the Serologist Exh.P.O. and Exh.P.P. and closed the prosecution case. After that, statements of the appellants were recorded under section 342, Cr.P.C. in which they pleaded innocence. After conclusion of the trial, both the appellants were convicted and sentenced as stated above.
Learned counsel for the appellants has read before me the prosecution evidence, statements of the appellants recorded under section 342, Cr.P.C. and submits that there is no eye‑witness in this case; that the accused were neither named in the F.I.R. nor in the statements of the witnesses recorded under section 161, Cr.P.C. and that no identification parade was held in this case. Further, submits that complainant was not an eye‑witness because he came to the spot after occurrence. Learned counsel also attacked on the evidence of Rana Muhammad Younas, P. W.7 and submits that extra judicial confession allegedly made by the appellants is joint one. He explains that occurrence in this case had taken place on 28‑4‑1997 while statement of Rana Muhammad Younas (P.W.7) was recorded on 3‑5‑1997, 7/8 days after the occurrence. Also submits that according to Abdur Rashid, A.S. ‑I. (P.W.11) appellants were arrested on 5‑6‑1997 but Muhammad Younas (P. W.7) in cross‑examination stated that the appellants were arrested on the same day, although there is difference of about one month between the alleged extra judicial confession and arrest of the appellants, as per record. As far as recovery of weapon of offence is concerned, learned counsel submits that the same was allegedly recovered from an abandoned place which was accessible to everybody and that too after one month and 11 days of the occurrence. Learned counsel lastly submits that prosecution has miserably failed to prove its case against the appellants.

On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that Mst. Sakina (P. W.1) was a natural witness. there is no dispute on the time, place of occurrence and the injuries caused by sharp‑edged weapon. Learned counsel for the complainant has tried to convince me that that Mst. Sakina Bibi being a natural witness, her statement should be believed and that there, was no reason to falsely implicate the appellants. Further submits that there was no need of identification parade as Mst. Sakina Bib!, P. W.1 had identified the appellants at the time of trial. Learned counsel relied on 1974 SCMR 175 and PLD 1978 Kar. 541. He submits that ocular account is corroborated by extra judicial confession made by the appellants and the recovery of blood‑stained Chhuri.

I have heard learned counsel for the parties and have gone through the prosecution evidence. In the instant case, nobody was named in the F.I.R. and no description of the accused has also been given in the F.I.R. Statement of Mst. Sakina P. W.1 is very much relevant for the just decision of this case. She was duly confronted by the learned defence counsel with her statement Exh.D.A. where nobody was named. No description of the accused was given, so merely on the statement of Mst. Sakina P. W.1 that she identified the appellants in the Court at the time of trial is not enough to maintain the conviction against the appellants on a charge of capital A punishment. No motive whatsoever has been given either by the first informant or by Sakina, P. W.1 either in the F.I.R., during the investigation or before the trial Court. There is not an iota of evidence on record to show that anybody had seen the appellants committing murder of the deceased. So far as alleged recovery of Chhuri is concerned, that was effected after one month and 11 days of the occurrence and that too from an abandoned place which was accessible to everybody. 1, therefore, do not believe the recovery of Chhuri in the instant case. Muhammad Younas, P.W.7 the witness of extra‑judicial confession did not say anything that what words were used by the appellants while making extra judicial confession in this regard. Mere saying that appellants had confessed their guilt is not sufficient to believe the same. It may also be noted here that occurrence took place on 28‑4‑1997. Muhammad Younas, P.W.7 stated that appellants admitted their guilt on 4‑5‑1997 and also admitted in his cross‑examination that his statement was recorded 7/8 days after the occurrence and the moment the appellants trade the extra‑judicial confession. Police came and arrested them. According to statement of Abdur Rashid, A. S.‑I. (P.W.11) appellants were arrested on 5‑6‑1997, that is, one month after the alleged extra judicial confession. This is irreconcilable and shatters the prosecution case regarding arrest of the appellants and the alleged extra‑judicial confession.

The net result of above discussion is that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt. The prosecution case is full of doubts, the benefit of which has to go to the accused. So, I accept the appeal filed by the appellants and set aside the conviction and sentence recorded by the trial Court against the appellant and acquit them from the charge. Both the appellants are in jail. They shall be released forthwith, if not required to be detained in any other case.

H.B.T./M‑200/L Appeal accepted.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1902 #

2000 P Cr. L J 1924

[Lahore]

Before Muhammad Naseem Chaudhri, J

MUHAMMAD IQBAL, A.-S.I.---Petitioner

versus

STATION HOUSE OFFICER, POLICE STATION NEW ANARKALI, LAHORE and 2 others---Respondents

Writ Petition No.6400/Q of 2000, decided on 26th April, 2000.

(a) Practice and procedure---

----When law prescribes a particular manner and procedure in which things are required to be done, the same must be done in that way or nor at all.

(b) Punjab Anti-Corruption Establishment Rules, 1985---

----Rr. 8 & 17---Prevention of Corruption Act (II of 1947), S.5-A-Applicability of Rr.8 & 17, Punjab Anti-Corruption Establishment Rules 1985---Provisions of S.5-A, Prevention of Corruption Act, 1947 having become obsolete with the passage of time, provisions of Rr.8 & 17 of P'Unjab Anti-Corruption Establishment Rules, 1985 were relevant and significant and had preference with regard to its applicability and attraction towards a matter of anti-corruption.

----General law, whether substantive or procedural, is superseded by the special law of the same category.

(d) Punjab Anti-Corruption Establishment Rules, 1985--

----R. 3---Deputy Commissioner to be an ex-officio Deputy Director of Anti-Corruption Establishment---Object---Basic idea is to have the ' Deputy Commissioner dealing with the corruption cases at the district level instead of Circle Officer who is Inspector of Police only and is sent on deputation to the Anti-Corruption Establishment.

(e) Punjab Anti-Corruption Establishment Rules, 1985--

----S. 8---Registration of case---Scope---None else than the Deputy Commissioner/Magistrate of District, can pass the order for registration of case under R.8 of Punjab Anti-Corruption Establishment Rules, 1985.

(f) West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961)---

----S. 3---Inquiry or investigation of anti-corruption case---Local police, jurisdiction of---Scope---Inquiry or investigation of scheduled offences can be conducted by Anti-Corruption Establishment and not by the local police.

(g) Administration of justice--

---- Meddling in the working of other departments---Where any branch would start meddling in the working of other branches according to its whims or desire, and its actions would be approved, there would be administrative chaos in the society leading towards judicial anarchy which could not be the intention of law.

(h) West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961)---

----S. 3---Registration of anti-corruption cases at anti-corruption establishment---Inquiry before registration of case---Object---Wisdom behind such inquiry is to save the reputation and honour of public servant---Public servant may be exonerated in the inquiry before registration of case and has not to go through the ordeal as is the case with the accused of any other case registered at local police station, which such public servant has to face.

(i) Punjab Anti-Corruption Establishment Rules, 1985---

----R. 9---Arrest of public servant---Restraint on arrest---Scope---Some restraint has been put on the immediate and forthwith arrest of the public servant under R.9 of Punjab Anti-Corruption Establishment Rules, 1985 except those caught as a result of a trap case.

(j) Punjab Anti-Corruption Establishment Rules, 1985--

----Rr. 8 & 17---Prevention of Corruption Act (II of 1947), S.5---Penal Code (XLV of 1860), S.161---Constitution of Pakistan (1973), Art.199--Constitutional petition---Quashing of F.I.R.---Registration and investigation of anti-corruption case at local police station---Failure to hold any preliminary inquiry in terms of the provisions of Punjab Anti-Corruption Establishment Rules, 1985---Accused was Assistant Sub-Inspector of Police and on the allegation of obtaining illegal gratification F.I.R. was registered against him on the direction of Deputy Superintendent of Police ---Validity--Local police did not figure anywhere in the- Anti-Corruption Establishment and the inquiry and investigation had to be evolved around the fountain of Anti-Corruption Establishment in matters of allegation of corruption against public servants---Very order of registration of the case in the manner adopted by the Deputy Superintendent of Police and its registration at the local police station, had not only offended the law of the land but was also violative of legal ethics and human rights---Such investigation of the case by the local police was transgression of authority being without competence and jurisdiction---Such F.I.R. could not remain in the field and was liable to be quashed---Constitutional petition of accused was allowed and F.I.R. was ordered to be quashed in circumstances.

Muhammad Afzal and 2 ,others v. Muhammad Siddique Girwa, Additional Sessions Judge; Gujranwala and 3 others 1992 MLD 311; Riaz Ahmad Tahir v. The State and others PLJ 1996 Criminal Cases Lahore 80; Saleem Hussain v. The State PLJ 1996 Criminal Cases Lahore 916; Mirza Muhammad Iqbal and others v. Government of the Punjab PLD 1999 Lah. 109; M. Abdul Latif v. G.M. Piracha and others 1981 SCMR 1101 and Usman v. Sindh Labour Appellate Tribunal and another 1984 CLC 2782 ref. .

(k) West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961)---

----S. 6(2)---Anti-corruption matter---Registration of F.I.R. at local police station---Effect---If the case was registered at local police station, provisions of S.6(2) of West Pakistan Anti-Corruption Establishment Ordinance, 1961 would become redundant as in that case the investigation would go out of the power or control of Anti-Corruption Establishment.

(l) Interpretation of statutes--

---- Delegated legislation---While enacting the delegated legislation the principle is that the authority enacting the delegated legislation has to follow the policy of the law-makers.

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

----S. 154---West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961), S.3---Registration of Anti-Corruption cases---Powers of Incharge of police station of Anti-Corruption Establishment ---Scope---Incharge of police station of Anti-Corruption Establishment also acts under S.154, Cr.P.C. with respect to the registration of F.I.R. regarding offences to be investigated by them.

Aftab Ahmad Bajwa for Petitioner.

Ms. Roshan Ara, Asstt. A.-G. for Respondents.

Date of hearing: 21st April, 2000.

JUDGMENT

Muhammad Iqbal, A.S.-I. posted in Police Station New Anarkali, Lahore under the administrative control of Mr. Khalid Javed, Deputy Superintendent of Police New Anarkali Circle, Lahore has filed this writ for the quashment of F.I.R. No.49 registered on 10-4-2000 at Police Station New Anarkali Lahore under section 161 Pakistan Penal Code under section 5 of the Prevention of Corruption Act, 1947.

The aforesaid crime case stands registered at Police Station New Anarkali, Lahore at the instance of Mr. Khalid Javed, Deputy Superintendent of Police, New Anarkali Circle, Lahore wherein he alleged that the investigation of Crime Case No. 103 registered on 29-2-2000 under sections 302, 452, 324 and 109, Pakistan Penal Code at Police Station Shahdara Town, Lahore was entrusted to him. He handed over the file to Muhammad Iqbal, A.S.-I. (petitioner) so that both the parties were heard and the correct facts were brought before him. He alleged that Muhammad Iqbal, A.S.-I. started bargaining and received an amount of Rs.2,000 from Muhammad Khurshid son of Ghulam Muhammad resident of House No.547-E, Pari Lal Shah Almi, Lahore and, thus, committed the offences under section 161, Pakistan Penal Code and under section 5 of the Prevention. of Corruption Act, 1947.
Muhammad Iqbal. A.S. -I. has been arrested whose physical remand has been obtained. Muhammad Iqbal, A.S.-I. has sought the quashment of the aforesaid F.I.R. on the ground that the Deputy Superintendent of Police, New Anarkali Circle, Lahore was not competent and authorised to get registered the criminal case and that the case against him could not be registered at the local police station i.e. Police Station New Anarkali, Lahore. According to the petitioner no preliminary inquiry in terms of the Punjab Anti-Corruption Rules, 1985 has been conducted and that the First Information Report could be registered at the Anti-Corruption Establishment, Lahore. He maintained that the local police has proceeded in the matter without any legal justification in violation of the rules and the law of the land. He claimed to be a law-abiding citizen serving in the Police Department for the last 20 years and claimed to have unblemished record. He maintained that the First Information Report was lodged by the Deputy Superintendent of Police, New Anarkali, Circle, Lahore who was not an aggrieved person and that no prosecution witness was mentioned in the F.I.R. In short due to the non-initiation of the inquiry, registration of the First Information Report at local police station and expressing that the investigation could not be conducted by the police of the local police station; Muhammad Iqbal, A.S.-I. petitioner prayed for the quashment of the F.I.R.
This petition has been resisted by the respondents who submitted the report and parawise comments wherein they contended that the F.I.R. could be registered at the local police station and the case could be investigated by the local police station. In this regard reliance was placed on the' judgment passed in Writ Petition No. 18785 of 1999. They maintained that the registration of the criminal case against Muhammad Iqbal, A.S.-I. is warranted by law and that due to the registration of the F.I.R. at the local police station the police of local police station was competent to investigate the case. They prayed for the dismissal of the writ petition.
This writ petition has been admitted for regular hearing. The comments and report are treated as the written statement.
I have heard the learned 'counsel for the petitioner as well as the learned Assistant Advocate-General and gone through the record before me. Learned counsel for the petitioner referred to Rules 3 to 17 of the Punjab Anti-Corruption Establishment Rules, 1985 wherein the procedure for the initiation of preliminary inquiry against the public servants, registration of case, arrest of the accused, imparting of information to the Administrative Department regarding his arrest, obtaining sanction for prosecution, prosecution of the accused public-servant, traps, dropping of cases or recommending department action and the factum of Establishment of Police Station of Anti-Corruption Establishment have been incorporated: According to him the registration of the criminal case without any inquiry at the local police station at the instance of the Deputy Superintendent of Police, New Anarkali Circle, Lahore is illegal, void and without jurisdiction. He added that the things have not proceeded according to the procedure laid down in . the Punjab Anti-Corruption Establishment Rules, 1985. On the contrary learned Assistant Advocate=General referred to section 5(2)/5-A of the Prevention of Corruption Act, 1947 as well as section 3 read with section 8 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 and argued that investigation of offences under section 5(2) of the Prevention of Corruption Act, 1947 could be conducted by the Deputy Superintendent of Police without obtaining the permission from the Magistrate of the 1st Class as required under section 5-A of the Prevention of Corruption Act, 1947 and thus, the contention of the learned counsel for the petitioner that the investigation was violative of law is misconceived. He maintained that the provisions of section 8 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 has made out that all the provisions of the aforesaid Ordinance, 1961 are in addition to and not in derogation of any other law for the time being in force. He added that the provisions of Code of Criminal Procedure are applicable to anti-corruption cases and for that matter local police can proceed under section 154 of the Code of Criminal Procedure with regard to the registration of the case at the respective local police station known as Police Station New Anarkali Circle, Lahore. He added that this is a case of corruption and on the basis of legal technicalities it is not proper and fair to quash the F. I. R.
I, however, agree with the learned counsel for the petitioner. In this regard it is proper to express that when law prescribes a particular manner and procedure in which things are required to be done, the same must be done in that way and not otherwise at all. In order to test the accuracy of the submissions made by the learned counsel for the petitioner and the learned Assistant Advocate-General it would be proper to reproduce the relevant sections and rules of the Prevention of Corruption Act, 1947, West Pakistan Anti-Corruption Establishment Ordinance, 1961 and the Punjab Anti-Corruption Establishment Rules, 1985 as under:--

"(A) Sections 5 and 5-A of Prevention of Corruption Act, 1947:

Criminal misconduct.--- (1) A public servant is said to commit the offence of criminal misconduct--

(a) ......................................................... ..............

(b). ......................................................... ..............

(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage, or

(2) Any public servant who commits (or attempts to commit criminal misconduct) ... shall be punished with imprisonment for a term which may extend to seven years or with fine or with both.

5-A. Notwithstanding anything contained in the Code of Criminal. Procedure, 1898 (Act V of 1898), no officer below the rank of Inspector shall investigate any offence punishable under any of the sections of the Pakistan Penal Code (Act XLV of 1860), mentioned in section 3 of any offence punishable under section 5 without an order of a Magistrate of the first class or make an arrest therefore without a warrant:

(B) Sections 3, 6 and 8 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961.

Constitution and powers of Anti-Corruption Establishment.--- (1) Notwithstanding anything contained in any other law for the time being in force, Government may constitute an establishment to be known as Anti-Corruption Establishment for the investigation of offences set forth in the Schedule, and for holding preliminary inquiries for determining whether such offences shall be investigated or departmental inquiries into the conduct of any public servant concerned in such offences shall be held.
Power to make rules.--- (1) Government may make rules to carry out the purposes of this Ordinance.

(2) In particular and without prejudice to the generality of the foregoing power such rules may provide for the organization of the Establishment and for prescribing the authorities with whose permission investigation of any case or class of cases may be commenced or any person may be arrested.

Provisions not in derogation of any other law.--- The provisions of this Ordinance are in addition to and not in derogation of any other law for the time being in force.

Area of jurisdiction of ex-officio Deputy Director and Additional Director of.--- The area of jurisdiction of ex-officio Deputy Director shall be the district of his posting while that of ex-officio Additional Director shall be over his Department and attached Department in 'which he shall be assisted by the ex-officio Assistant Directors.
The ex-officio Additional Director and ex-officio Deputy Director shah only deal with the category of cases which may be assigned to them by the Government from time to time by notification.

5.--- (1) After the preliminary enquiry, if the ex-officio Additional Director or ex-officio Deputy Director finds that--

(a) there is no ground to proceed further in the matter, the proceeding shall be dropped after recording reasons, and the complainant it any, shall be informed;

(b) there are reasonable grounds to proceed further in the matter, he shall refer the case alongwith the relevant record to the appointing authority of the accused public servant for departmental proceedings under the Efficiency and Discipline Rules.

(2) If the ex-officio Additional Director or ex-officio Deputy Director receives a complaint or gets information through reliable source regarding a serious case which does not fall within the category of the notification issued under Rule 4, he shall refer the same to the Director.

(3) If a case is referred under sub-Rule (2), the Director after examining the same may return the same to the concerned ex-officio Additional Director, ex-officio Deputy Director who shall deal with the same under these rules.

Preliminary enquiries and investigations against public servants.--Preliminary enquiries and investigations shall be initiated by the Establishment against public servants on complaints received from the Government. Heads of Departments or other reliable sources.
Initiation of preliminary enquiries against public servants.--- A Deputy Director or an officer of or above his rank shall initiate preliminary enquiries in order to ascertain the identity of the complainant or informer and genuineness of the complaint/information:

Provided that enquiry against the Commissioners of Divisions, Secretaries to the Provincial Government, Heads of attached Departments and other officers of BPS-20 and above, shall be initiated by the Director with the prior permission of the Governor:

Provided further that, for those officers mentioned .in the first proviso who are in BPS-19, such permission shall be accorded by the Chief Secretary.

Registration of cases.---(1) Criminal cases shall be registered by the Establishment under Prevention. of Corruption Act, 1947 and under such sections of the Pakistan Penal Code, as have been set forth is the Schedule to the Ordinance.

(2) Criminal cases shall be registered against accused public servants under the written orders of officers of Establishment mentioned

(a) Public servants in BPS 1 -- 16. Not below a Deputy

Director.

(b) Public servants in BPS 17 and 18 Not below an Additional

Director.

Provided that no case shall, however, be registered by the Director -against public servants of the status of Commissioner, Secretary to Provincial Government, Heads of Attached Departments and, other officers of BPS-20 and. above without the prior permission of the Governor:

Provided further that for those public servants mentioned in the first proviso who are in BPS-19, such permission shall be accorded by the Chief Secretary:

Provided further that no prior permission shall be required for registration of a case against a public servant caught as a result of trap arranged by the Establishment under the supervision of a Magistrate, in the act of committing an offence specified in the Schedule to the Ordinance. In such a case, a report shall immediately be made to the Chief Secretary, the Administrative Secretary and immediate superior of the public servant concerned if he is in BPS-16 and above and to the appointing authority and immediate superior if the public servant is in BPS-15 and below..

(3) If the competent authority under sub-rule (2)-decides not to registera case, he shall record reasons therefore.

Arrest.--- The accused public servant may be arrested if his arrest becomes unavoidable during investigation, except in the following cases when permission will be accorded by the authority specified below

(a) Officers in BPS-18 and 19 Commissioner

(b) Commissioners and Secretaries Chief Secretary

to Government Heads of

Attached Departments and

Officers in BPS-20 and above:

Provide that no such permission for arrest shall be required after sanction for prosecution has been accorded by the authority prescribed for the purpose under the Criminal Law Amendment Act, 1958:

Provided further that no prior permission shall be necessary for the arrest of a public servant caught as a result of trap as mentioned in sub-Rule (2) of Rule 8.

Informing Administrative Department, etc. regarding registration of a case and arrest.--- As soon as may be after registration of a case against a public servant, the Establishment shall inform the Administrative Secretary and immediate superior if the public servant involved is in BPS-16 or above and the appointing authority and immediate superior in case of a public servant in BPS-15 and below, giving gist of allegations upon which the case has been registered. The said authorities shall also be informed immediately after the arrest of the accused public servant.
Obtaining sanction for prosecution.--- After investigation in cases considered fit for prosecution, the following authorities shall be competent to move for sanction for prosecution required under subsection (5) of section 6 of the Pakistan Criminal Law Amendment Act, 1958 (XL of 19583:--

(a) Director or Additional Director in cases against public ser wants up to BPS-18; and

(b) Director in cases against public servants in BPS-19 and above.

Sanction for prosecution.--- Sanction for prosecution shall be obtained from the authority specified under the Pakistan Criminal Law Amendment Act, 1958 (Act XL of 1958).
Prosecution of the accused public servant.--- On receipt of sanction the accused public servant shall be challaned to Court without any delay and the Authorities. mentioned in Rule 8 shall be intimated.
Traps.--- In all cases of raids, the Deputy Commissioner or in his absence the Additional Deputy Commissioner (General) of the District shall be approached by the officers of the Establishment posted in the district to depute a Magistrate for supervising the raid.
Dropping of cases or recommending departmental action.--- (1) The following procedure shall be followed for dropping of a. case or recommending departmental action:--

(a) On completion of investigation if allegations are not established, the case shall be dropped and intimation to the effect shall be sent to the authorities mentioned in Rule 8..

(b) If after investigation it is found that prosecution is not called for but sufficient material is available on record for departmental action, the Establishment shall move the departmental authorities for departmental proceedings under Efficiency and Discipline Rules. .

(2) The following Authorities shall decide dropping of cases or departmental action:--

(a) Additional Directors in cases in which public servants up to BPS-17 are involved.

(b) Director in cases in which public servants up to BPS-18 are involved.

(d) Governor in cases involving Commissioners, Administrative Secretaries and officers in BPS-21 and above are involved.

(3) After a decision to take departmental action has been taken under foregoing sub-rule the competent Authority shall initiate departmental proceedings against the accused public servant.

(4) Copies of final reports and summaries of dropped cases shall not be supplied, without the permission of the Director.

(5) When decision to hold departmental enquiry against a public servant is taken, the Establishment shall forward facts of the case, statement of allegations, list of witnesses and documents, if any, to the Authority prescribed under the Efficiency and Discipline Rules.

(6) As soon as the enquiry has been completed and final orders have been passed the result of the same shall be intimated to the Establishment, alongwith a copy of Enquiry Officer's Report for completion of record.

Where Senior Public Servants are involved alon with Junior Public Servant.--- For the purpose of dropping the case after investigation, , or referring it for departmental action or. making a move to obtain T sanction for prosecution, if more than one public servants arc involved, the competent Authority for these decisions shall be the one, which is in case of the public servant in the highest BPS., 17. Police Stations of the Establishment.--- Cases shall be registered by the Establishment at the police station of the Establishment having the jurisdiction:"
The Punjab Anti-Corruption Establishment Rules, 1985 have been enforced later and rather the latest in time, the Rules 8 and 17 of which are relevant and significant and for that matter shall have the preference with regard to its applicability and attraction towards a matter of the instant nature. Legally the general law, substantive or procedural is superseded by the special law of the same category and thus, the special laws towards anticorruption measures shall have the preference. According to the Punjab Anti-Corruption Establishment Rules, 1985 framed in pursuance of section 6 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961; whole of the texture in the matter stands changed. The Punjab Anti-Corruption Establishment Rules, 1985 were enforced on 23-5-1985 vide Notification No.SV-13-1-85, dated 23-5-1985 published in Gazette, Extraordinary, dated 23-5-1985. Practically with the passage of time the provisions of section 5-A of the Prevention of Corruption Act, 1947 have become obsolete which is not utilized by the present authorities at the helm of the Anti-Corruption matters who act under the Punjab Anti-Corruption Establishment Rules, 1985. The scheme for re-organization of Anti-Corruption Establishment Rules, 1985 has been incorporated in clear terms in Punjab Anti-Corruption Establishment Rules, 1985 wherein one of the salient features of the scheme as mentioned is that Deputy Commissioners made the ex-officio Deputy Director of Anti-Corruption Establishment. The basic idea is to have the Deputy Commissioner dealing with the corruption cases at the district level instead of Circle Officer who is the Inspector of Police only and is sent on deputation to the Anti-Corruption Establishment. By making the Deputy Commissioner responsible for Anti-Corruption Establishment duties he has also been made an Officer with added, enhanced prestige, respect and authority at the District level. Only the ex-officio Deputy Director of Anti-Corruption who, as expressed above, is none else than the Deputy Commissioner/Magistrate of the District could pass the order for the registration of the case as he is empowered in the matter under Rule 8 of the Punjab Anti-Corruption Establishment Rules, 1985 reproduced supra. At present the District Magistrate has not to act under section 156 of the Code of Criminal Procedure in anti-corruption cases which is departure towards addition of his powers. According to section 3 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 the inquiry or investigation of the case under the scheduled offences can be conducted by the Anti-Corruption Establishment and not by the local police as rightly pointed out by the learned counsel for the petitioner. I am tempted to express at this stage that there are water tight compartments of jurisdiction: There are different branches of police, viz. local police, Central Intelligence Agency (C.I.A.), Legal Branch, Anti-Corruption Establishment, Task Force, Highways Police, Motorway Police, Railway Police, Federal Investigating Agency (F.I.A.), Traffic Police, Intelligence Police and Anti-Narcotics Force etc. etc. If any branch starts working, meddling according to its whims or desire in the F working of the other Branch and their actions are approved, I must record and express that there would be administrative chaos in the society leading towards judicial anarchy which is not the intention of law. I deem it proper to record that if a hurt or theft case cannot be registered at Anti-Corruption Establishment how the case(s) of scheduled offence(s) mentioned in the Prevention of Corruption Act. 1947 and the Pakistan Criminal Law Amendment Act, 1985 against a public servant can be registered at the local police station under the administrative control of the local police being headed by the Superintendent of Police who has no concern with Anti-Corruption Establishment so far as the administrative control is concerned. There is separate administration of the Anti-Corruption Establishment having the separate Provincial Head designated as Director Anti-Corruption, Punjab, Lahore leading a force of subordinates of all levels incorporated in the Punjab Anti-Corruption Establishment Rules, 1985. The wisdom behind the registration of the Anti-Corruption cases regarding scheduled offences directly at Anti-Corruption Establishment is that the provision of inquiry at the end of the said Establishment before the registration of the case has also been provided and it is simply to save the reputation and honour of the public servants. It may be that in the inquiry he stands exonerated before the registration of the case and has not to go through the ordeal as the accused of any other case registered at local police station which he has to face and against whom the case may be cancelled under section 169 of the Code of Criminal Procedure or who may be acquitted under section 249-A, Code of Criminal Procedure/265-K, Code of Criminal Procedure or after holding a full-fledged trial. About the arrest of a public servant there is the aforesaid Rule 9 of the Punjab Anti-Corruption Establishment Rules, 1985 and a perusal of the same has made out that some legal restraint has been made on the immediate and forthwith arrest of the public servants except those caught as a result of trap. It has been incorporated as an abundant caution to inculcate confidence in the public servants and to save them from autocratic working of any person in authority who may jump upon them for their arrest as in the instant case. Thus, the persons in authority have been made cautious. This sword hanging on the civil servants/public servants must be removed and it is the right time to take note of it and to take exception to such type of working of the Deputy Superintendent of Police (Circle Officer, New Anarkali, Lahore) of local police. My view is that the very order of the registration of the case in the manner adopted by the Deputy Superintendent of Police, New Anarkali Circle, Lahore and its registration at the local police station not only offends the law of the land the same is also violative of legal ethics and human rights. Therefore, on the basis of the aforesaid reasoning and findings the investigation of the case by the local police is transgression of authority being without competence and jurisdiction.
It is the proper stage to refer to the ruling printed as Muhammad Afzal and 2 others v. Muhammad Siddique Girwa, Additional Sessions Judge, Gujranwala and 3 others 1992 MLD 311 (Lahore) according to which the case got registered by an Additional Sessions Judge under sections 409, 420, 466, 468, 218, 411, 104, 106, Pakistan Penal Code and under section 5 of the Prevention of Corruption Act was quashed on the ground that the direction of the Additional Sessions Judge for registration of case against the accused persons (petitioners of that case) and consequent registration of the said case was illegal being superstructure raised on an illegal direction by the Additional Sessions Judge and the police was not authorised under the law to register the said case and investigate the same. Consequently, the order of the Additional Sessions Judge for registration of the case under the scheduled offences and its registration by the police were declared to have been passed and registered without lawful authority and of no legal effect and the case was quashed. In Riaz Ahmad Tahir v. The State and others PLJ 1996 Criminal Cases Lahore 80 the F.I.R. lodged with local police station under sections 409, 467 and 468, Pakistan Penal Code against a Patwari was quashed as the same could only be registered with the Anti-Corruption Establishment and the State was allowed to proceed in accordance with laws/rules afresh. In Saleem Hussain v. The State PLJ 1996 Criminal Cases Lahore 916, of which I am the author, the aforesaid reasoning was adopted to hold that the anti-corruption cases could only be registered at Anti-Corruption Establishment and not at the local police station under the administrative control of the Superintendent of Police of the District and also not on the order passed by a Magistrate 1st Class as he is not empowered under section 156 of the Code of Criminal Procedure because it is only the District Magistrate who can pass the order for registration of the case as the ex-officio Deputy Director, Anti-Corruption of the District.
The learned Assistant Advocate-General relied on Mirza Muhammad Iqbal and others v. Government of the Punjab PLD 1999 Lah. 109 whereby Writ Petition No.18785 of 1998 was heard and decided on 8-10-1998 wherein relying on M. Abdul Latif v. G.M. Piracha and others 1981 SCMR 1101 it was held that the relevant case of scheduled offence could be investigated by the local police instead of the Anti-Corruption Establishment on the ground that section 8 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 provides that "the provisions of this Ordinance are in addition to and not in derogation of any other law for the time being in force". On the contrary learned counsel for the petitioner laid the emphasis that the aforesaid decision in Writ Petition No.18785 of 1998 heard and decided on 8th October, 1998 printed as Mirza Muhammad Iqbal and others v. The Government of the Punjab PLD 1999 Lah. 109 was challenged in Civil Petition No.1757(L) of 1998 before the Supreme Court of Pakistan wherein the learned Advocate-General, Punjab made the statement at the Bar that investigation against the petitioner shall be conducted by the Anti-Corruption Department in accordance with law and the learned counsel for the petitioner did not press the petition which was disposed of as having borne fruit. He added that the competent authority could not control the investigation if the case was not registered at Anti-Corruption Establishment and that the ultimate power of investigation being with the Anti-Corruption Establishment the case could not be registered by the local police. The facts of the aforesaid case printed as M. Abdul Latif v. G.M. Piracha and others 1981 SCMR 1101 were that on a complaint of embezzlement/ misappropriation to the tune of Rs.30,00,000 a raid was conducted at Ration Depot in Multan as a result of which a case was registered against the officials of Food Department including M. Abdul Latif. The case was entrusted for investigation to Police Officers attached to the Anti-Smuggling (Rice and Paddy) Mobile Team, Multan including Muhammad Sadiq, Assistant Sub-Inspector and Muhammad Ashraf Bajwa, Sub-Inspector. M. Abdul Latif filed a writ petition in this Court challenging the competence of the police to investigate the case of scheduled offence against him. This Court found that the abovesaid Police Officers were competent to carry out the investigation and dismissed the petition. M. Abdul Latif applied for leave to appeal and canvassed the proposition which had been repelled by the High Court. Reliance in the Supreme Court judgment was inter alia placed on section 3 of the Ordinance to show that the investigation could only be conducted by the Anti-Corruption Establishment. The argument was noted by the Court in para. 7 of the order and answered as under:--

"He submitted that such an Establishment had in fact been created and it being a special law only members of this Establishment could investigate the offences of corruption and, therefore, Police Officers attached to the Anti-Smuggling (Rice and Paddy) Mobile Team could not investigate such a case. The contention overlooks the provisions of section 8 of the said Ordinance which provides:--

The provisions of this Ordinance are in addition to and not in derogation of any other law for the time being in force'.

In view of the above discussion we find that the petition has no merit and is, therefore, dismissed."

At this stage I would like to reproduce in toto as under the judgment, dated 3-12-1998 passed in the case of Mirza Muhammad Iqbal v. Government of the Punjab through the Secretary, Elementary Education and others passed by the Supreme Court of Pakistan:--

"In the Supreme Court of Pakistan Appellate Jurisdiction

Present: Mr. Justice Irshad Hasan Khan

Mi. Justice Sh. Ijaz Nisar

Mr. Justice Ch. Muhammad Arif

Civil Petition No. 1757(L) of 1998

(On appeal from the order, dated 8-10-1998 passed by Lahore High Court, Lahore in Writ Petition No. 18785 of 1998).

Mirza Muhammad lqbal --- Petitioner

versus

Government of the Punjab through Secretary, Elementary Education and others---Respondents

For the Petitioner: Mr. Pervez Malik, Advocate

Supreme Court with Mr. Tanvir

Ahmad, Advocate-on-record

For the Respondents Mr. Ashtar Ausaf Ali, Advocate

General, Punjab.

Date of hearing: 3-12-1998

Order

Learned Advocate-General, Punjab has made a statement at the Bar that the investigation against the petitioner shall be conducted by the Anti-Corruption Department in accordance with law. In view of the above statement, learned counsel for the petitioner does not press the petition, which is disposed of as having borne fruit.

(Sd.) Mr. Justice Irshad Hasan Khan

Lahore, 3-12-1998. (Sd.) Mr. Justice Sh. Ijaz Nisar

(Sd.) Mr. Justice Ch. Muhammad Arif."

My view is that the aforesaid judgment, dated 3-12-1998 has changed the dictum enunciated in Abdul Latif's case 1981 SCMR 1101 because in the light of judgment, dated 3-12-1998 the investigation was directed to be conducted by the Anti-Corruption Department in accordance with law about the case of Mirza Muhammad Iqbal who was involved in a case of scheduled offence. By the concession, dated 4-12-1998 of the Chief Law Officer/Advocate-General, Punjab, Lahore it would be deemed that the concession is regarding the interpretation of Ordinance, 1961 as to the registration and investigation by the Anti-Corruption Establishment about the scheduled offence to the exclusion of the other Agency i.e. local police. It is necessary to mention that Abdul Latif's case was decided in limine by .two Honourable Judges of the Supreme Court of Pakistan on 8-4-1981 while the aforesaid decision, dated 4-12-1998 has been passed by the three Honourable Judges of the Supreme Court. According to. Usman v. Sindh Labour Appellate Tribunal and Karachi Port Trust 194 CLC 2782 Karachi High Court "normally the rule is that where the law laid-down is differently in two decisions of the Supreme Court by Benches of different strength the different decision of the larger Bench shall be followed as the binding decision on the subject". I would be glossing over an aspect of the matter by expressing that the appeal of Mirza Muhammad Iqbal was disposed of as having borne fruit. who thus, got the relief while even obiter of the Supreme Court is also binding on all under Article 189 of the Constitution (1973) and for that reason the dictum enunciated on 4-12-1998 has to take the preference according to which the investigation of a scheduled offence was directed to be conducted by the Anti-Corruption Establishment instead of the local police. The latest judgment, dated 3-12-1998 is operative which is to be utilized by all in view of Article 25 of the Constitution (1973) which provides that all citizens are equal before law and are entitled to equal protection of law. This is one aspect of Article 25 keeping in view judgment, dated 4-12-1998. The other aspect of Article 25 of the Constitution (1973) is that all the public servants/civil servants are to be treated equally before law and are entitled to equal protection of law. It means that at the time of the registration of the case and during the investigation of the case the public servants/civil servants are to be treated alike in such-like matters and registration of the cases at local police station in respect of some public servants while against others at the Anti-Corruption. Establishment would be negation of the aforesaid Article. It would also be true with respect to the holding of the investigation by the local police and the Anti-Corruption Establishment pertaining to different public servants. The dichotomy going is that in some cases the inquiry is held in terms of-the Punjab Anti-Corruption Establishment Rules, 1985 on the basis of which either the case is dropped or the departmental inquiry is held or the case is registered, while in some other cases of the instant nature the case is got registered at the local police station and the accused is immediately got arrested against whom the investigation is also conducted by the local police. This type of working is violative of Article 25 of the Constitution (1973) and cannot be approved -only on the ground that according to section 8 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 the provisions of this Ordinance are in addition to and not in derogation to any other law for the time being in force especially in the light of the aforesaid judgment, dated 4-12-1998. A question can rightly be posed which is to the effect that why dichotomy should be the choice of the complainant, State and prosecution. Further, how, can the competent Authority (Anti-Corruption Establishment) control the investigation if the case is not registered at Anti-Corruption Establishment. The complainant is just an informant who has no control on the investigation after the registration of the cases. It can safely be expresses that only that authority which can register a case can investigate the same. Keeping in view this aspect in the - light of the aforesaid judgment, dated 3-12-1998 to the ease of Mirza Muhammad lqbal this is by implication and admission of the Chief Law Officer, Government of the Pun iab, Lahore that the case should have been registered at Anti-Corruption Establishment as well as investigated by it and the local police cannot deal in the' working of the Anti-Corruption Establishment which should investigate the case. The public servant cannot be proceeded against departmentally and the case can be registered and this right under section 3 of West Pakistan Anti-Corruption Establishment Ordinance, 1961 is taken away if local police registers the case. Even a Government servant cannot be tried unless sanction is granted by the competent Authority which has appointed him. The idea of investigation has got direct nexus with registration of a case and unless the case is registered, no investigation can take place. As to who will investigate the case means as to where the case shall be registered. Within its fold the rule-making body has given the power to register the case and investigate the same which is none else than the Anti-Corruption Establishment. Section 6(2) of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 shall become redundant if the case is registered in local police station as in that case the investigation shall go out of the- power and control of the Anti Corruption Establishment. Under Rule 19(3) of the Punjab Anti-Corruption Establishment Rules, 1985 Chief Secretary may suo motu call for the record of any case or inquiry for the purposes of satisfying himself as to the correctness or propriety of decision taken by the Director under the foregoing sub-rules and under clause (b) of sub-rule (2) of Rule 15 and may pass such order as- deemed fit in each case. Thus, the investigation can be controlled by the Chief Secretary who is not competent if the case is registered by the local police and investigated by it. As a last resort learned A:A.-G. argued that prima facie some of the provisions of the Punjab Anti Corruption Establishment Rules, 1985 travel beyond the provisions of West Pakistan Anti-Corruption Establishment Ordinance, 1961 and in particular Rule 8(2) placing embargo on registration of cases is not covered by any provision of the Ordinance. She added that the moment rule or some of them travel beyond the provision of parent law the same are struck down as ultra vires. I do not agree with her. As rightly pointed out by the learned counsel for the petitioner the vires of the Punjab Anti-Corruption Establishment Rules, 1985 cannot be challenged or objected to by the State or the complainant having been issued by the Governor of the Punjab in view of his competence under section 6(2) of the West Pakistan Anti-Corruption Establishment Ordinance, 1961. The exception in the matter can be taken by the citizens i.e. accused to challenge the same and get it analysed and dissected who (accused) in the instant matter is rather relying on the same. As such this argument has no force.
It shall not be out of place to express that while enacting the delegated legislation the principle is that the authority enacting the delegated legislation will follow the policy of the law-makers. It is very much clear that the policy of the law-makers was to have a separate forum for the public servants for corruption cases and to lay down the procedure for that. Therefore, the aforesaid objection from the State side will not be enough. It will have to be argued that a particular provision of rules is against the policy of the law-makers which is missing in the instant matter so far the objection raised by the learned Assistant Advocate-General is concerned. A law after laying down the broad principles of the policy of the State is then handed over to the Executive to implement that policy in a way best applicable to the facts, situation and circumstances of that particular matter and that sphere of its power it can formulate rules or settle other guidelines to regulate its conduct and it is within its sphere it performs quasi-legislative function. Where rule-making power is conferred upon the Executive whether by the Constitution or by an Act of the Legislature the executing power can well be exercised in a given field in simplicitor is, thus, confined to the execution of implementation of a policy formulated or likely to be formulated in a law. As such the policy of the law-makers was to provide a different forum and different procedure for proceeding against the public servants who are guilty of commission of certain scheduled offences.
At this stage it is proper to refer to Notification No.47(3)-II-85 Volume IV, dated 23-5-1985 which reads as under:--

"In exercise of the powers conferred on him by clause (s) of subsection (1) of section 4 of the Code of Criminal Procedure, 1898 and in suppression of all previous Notifications issued in this behalf, the Governor of the Punjab is pleased to declare the offices of the Anti-Corruption Establishment mentioned in column 2 of the Schedule annexed hereto to be police stations for the purposes of the offences specified in the Schedule to the Pakistan Criminal Law Amendment Act, 1958 (Act XL of 1958) for the areas mentioned against each in column 3 thereof.

| | | | | --- | --- | --- | | Sr. No. | Name of the Office | Area attached therto | | 1 | Directorate of Anti-Corruption stablishment, Punjab, Lahore. | Whole of the Punjab | | 2 | Additional Director of Anti Corruption Establishment, Lahore. | The whole of Civil Division of Lahore. | | 3 | Additional Director of Anti Corruption Establishment, Faisalabad. | The whole of Civil Division of Faisalabad and Sargodha. | | 4 | Additional Director of Anti Corruption Establishment, Rawalpindi. | The whole of Civil Division of Rawalpindi and Gujranwala. | | 5 | Additional Director of Anti- Corruption Establishment, Multan. | The whole of Civil Divisions of Multan, Bahawalpur and D.G. Khan. | | 6 | Circle Office, Anti-Corruption Establishment, Lahore. | District Lahore | | 7 | Circle Office, Anti-Corruption Establishment, Sheikhupura. | Distrct Sheikhupura | | 8 | Circle Office, Anti-Corruption Establishment, Kasur | District Kasur | | 9 | Circle Office, Anti-Corruption Establishment, Okara. | District Okara | | 10 | Circle Office, Anti-Corruption Establishment, Gujranwala. | District Gujranwala | | 11 | Circle Office, Anti-Corruption Establishment, Sialkot | District Sialkot | | 12 | Circle Office, Anti-Corruption Establishment, Gujrat. | District Gujrat | | 13 | Circle Office, Anti-Corruption Establishment, Rawalpindi. | District Rawalpindi. | | 14 | Circle Office, Anti-Corruption Establishment, Jhelum. | District Jhelum | | 15 | Circle Office, Anti-Corruption Establishment, Attock. | District Attock | | 16 | Circle Office, Anti-Corruption Establishment, Sargodha. | District Sargodha | | 17 | Circle Office, Anti-Corruption Establishment, Khushab. | District Khushab | | 18 | Circle Office, Anti-Corruption Establishment, Bhakkar. | District Bhakkar. | | 19 | Circle Office, Anti-Corruption Establishment, Mianwali. | District Mianwali. | | 20 | Circle Office, Anti-Corruption Establishment, Faisalabad. | District Faisalabad | | 21 | Circle Office, Anti-Corruption Establishment, Jhang. | District Jhang. | | 22 | Circle Office, Anti-Corruption Establishment, Toba Tek Singh. | District Toba Tek Singh | | 23 | Circle Office, Anti-Corruption Establishment, Multan. | District Multan. | | 24 | Circle Office, Anti-Corruption Establishment, Vehari. | District Vehari. | | 25 | Circle Office, Anti-Corruption Establishment, Sahiwal. | District Sahiwal. | | 26 | Circle Office; Anti-Corruption Establishment, D.G. Khan. | District D.G. Khan. | | 27 | Circle Office, Anti-Corruption Establishment, Muzaffargarh. | District Muzaffargarh | | 28 | Circle Office, Anti-Corruption Establishment, Leiah. | District Leiah | | 29 | Circle Office, Anti-Corruption Establishment, Rajanpur | District Rajanpur. | | 30. | Circle Office, Anti-Corruption Establishment, Bahawalpur. | District Bahawalpur | | 31. | Circle Office, Anti-Corruption Establishment, Bahawalnagar | District Bahawalnagar. | | 32. | Circle Office, Anti-Corruption Establishment, R.Y. Khan | District R. Y. Khan. |

The Directorate of Anti-Corruption Establishment, the Additional Directorates of Anti-Corruption Establishment and the Circle Offices in all the Districts of Punjab which are the police stations have been established.
This being the position the Police Station of Anti-Corruption Establishment is available in every District of Punjab and the matter can be taken there avoiding the dichotomy. It is known fact that a Police Officer of the rank of Inspector is the Station House Officer of the Anti-Corruption Establishment in each District in the Punjab. According to Notification No.HP-II/5-29/88, dated 13-8-1995 issued by the Government of the Punjab, Home Department, Lahore the Police Station Anti-Narcotic Force have been established under clause (s) of subsection (1) of section 4 of the Code of Criminal Procedure. According to Notification No.HP-II/3-1/2000 issued by the Government of the Punjab on 29-1-2000 Police Station National Accountability Bureau, Attock Fort (complete Barrack No. l and Rooms Nos.2, 3 and 4 of Barrack No.4, Attock) having jurisdiction in whole of the Punjab has been established under clause (s) of subsection (1) of section 4 of the Code of Criminal Procedure, 1898 read with section 18(e) of the National Accountability Bureau Ordinance, 1999. Further, likewise vide Notification No.HP-II/3-1/2000 Police Station National Accountability Bureau, 2nd Floor of Block 4 and entire Block 5 of Chamba House, Lahore has been constituted by the Governor of the Punjab having jurisdiction in whole of Punjab under clause (s) of subsection (1) of section 4 of the Code of Criminal Procedure, 1898 read with section 18(e) of the National Accountability Bureau Ordinance, 1999. The aforesaid police station under the special laws have been constituted and obviously the First Information Report shall be recorded under section 154 of the Code of Criminal Procedure by the Officers-in-Charge posted there. It means that the Station House Officer of the local police station need not be contacted for the registration of the cases under the Special Acts/Ordinances in the police stations constituted under the relevant Act(s). The Incharge of these police stations also act under section 154 of the Code of Criminal Procedure with respect to the registration of the First Information Reports regarding offences to be investigated by them.
The legal aspect of the matter is that the appeal preferred by Mirza Muhammad Iqbal has been disposed of by the Honourable Supreme Court having borne fruit vide order, dated 3-12-1998 and my view is that the contentions raised by the said appellant have been admitted and given weight by the State through the Chief Law Officer i.e. Advocate-General, Punjab. As such the dictum enunciated in the ruling printed as M. Abdul Latif v. G.M. Piracha and others 1981 SCMR 1101 is not applicable at present. On the basis of the aforesaid judgment, dated 3-12-1998 I deem it proper to reiterate that the contention raised by the learned counsel for Muhammad Iqbal petitioner that the case could not be registered at local police station i.e. Police Station New Anarkali, Lahore and could not be investigated by the local police i.e. the S. H. O./Inspector, Police Station Lower Mall, Lahore has the legal weight. The matter could be reported to the Circle Officer, Anti-Corruption Establishment, Lahore who could proceed further as expressed above especially when it is not a trap case.
At this stage it is also proper to refer to section 5 of the Code of Criminal Procedure, the- subsection (1) of which provides that all offences, under the Pakistan Penal Code shall be investigated, enquired into, tried and otherwise dealt with according to the provisions hereinafter contained while subsection (2) provides that all offences, under any other law shall be investigated, enquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment, for the time being in force regulating the manner or place of investigating, enquiring into, trying or otherwise dealing with such offences. In this view of the matter sections 3 and 6 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 read with the Punjab Anti-Corruption Establishment Rules, 1985 shall have to be followed especially after the aforesaid judgment, dated 3-12-1998 in the appeal preferred by Mirza Muhammad Iqbal.
Since the controversy in hand is being taken up and disposed of with all the pros and cons it would not be irrelevant if the filing of the complaint by a person from the public against a public servant is also touched in this judgment. In this regard the aforesaid type of complainant can file the private complaint in terms of section 190 of the Code of Criminal Procedure before the learned Special Judge (Anti-Corruption) competent to hear the same keeping in view his territorial jurisdiction. In the alternative the complainant can move the Director, Anti-Corruption or any of other Officer under his command keeping in view the pay grade of the public servant complained against who obviously shall proceed as expressed supra in detail: Even the Circle Officer of the Anti-Corruption Establishment (Thana) can be moved who shall have to bring the complaint to the notice of competent officer (Additional Director/Deputy Director) and thereafter, shall proceed to hold the inquiry if directed so or to register the case at the Anti-Corruption Establishment under his control. However, the investigation shall be conducted by the Anti-Corruption Establishment including the Assistant Director/Police Officer on deputation etc. and not by local police. The discipline and jurisdiction has to steal the eminence and play the vital legal role. Without prejudice I am tempted to express that the local police of the District under the administrative control of the Superintendent of Police who has no administrative control on the Anti-Corruption Establishment should wholeheartedly devote whole of its time towards the betterment of the law and order situation which is worsening with the passage of time and must absolutely refrain from interfering in the legally allocated jurisdiction of the Anti-Corruption Establishment which has to travel within its own sphere.
The upshot and final conclusion of the aforesaid discussion and dissection of the Anti-Corruption Laws is that there is gradual evolution therein. There is the Director, Anti-Corruption, Punjab with his subordinates designated as Additional Directors, Deputy Directors and Assistant Directors with paraphernalia of the members of police force who are sent on deputation having no concern with other aforesaid type of brariches of the Police Department and have to work whole-time and whole-heartedly in the Anti-Corruption Establishment. For urgent day-to-day affairs, as expressed above, Deputy Commissioner of each District has been designated as ex-officio Deputy Director, Anti-Corruption within the territorial limits of his District of posting. The inquiry on an application containing the complaint has to be conducted by any officer/official under the administrative control of the Director, Anti-Corruption, Punjab having the command on the Additional Directors and others. If during the inquiry no case is made out the matter is dropped. In case of existence of any material thereof the departmental inquiry can be initiated in trifle/certain matters. It is done on the idea that due regards are to be shown to the reputation and prestige of the public servants. In cases of alarming nature criminal cases can be got registered obviously at the Anti-Corruption Establishment (Thana) established under Rule 17 of the Punjab Anti-Corruption Establishment Rules, 1985 where the investigation can be and is to be conducted. In the Anti-Corruption Department/Establishment the member of the Provincial Civil Service/Extra Assistant Commissioners having sound knowledge of Revenue Law or other technical hands like Canal/Building S.D.Os. or XENs are also sent on deputation to meet the situation and requirement of the allegations to be probed during the investigation. The Superintendent of Police, the Deputy Inspector-General of Police and the Inspector-General of Police having control on the local police have no administrative control on the AntiCorruption Establishment. In short at present in the Anti-Corruption Establishment the local police does not figure anywhere and the inquiry and the investigation has to revolve around the fountain of Anti-Corruption Establishment in matters of allegations of corruption against public servants.
The only irresistible conclusion which can be drawn from the aforesaid legal provisions, analysis of the same and discussion would be that the cases with respect to the alleged anti-corruption offences can be registered against public servants by the Establishment under the written orders of the officers mentioned in Rule 8 of the Punjab Anti-Corruption Establishment Rules, 1985 at the Anti-Corruption Establishment and not of/by the inferior Police Officers or Superior Police Officers at the local police stations and obviously after adopting the distinct method as provided in the Punjab Anti-Corruption Establishment Rules, 1985. I, therefore, hold that the aforesaid F.I.R. cannot remain in the field which is liable to be quashed as the same has to fall on the ground like a house of cards.
For what has been said above, I accept this writ petition and quash F.I.R. No.49 registered on 10-4-2000 at Police Station New Anarkali Lahore under section 161, Pakistan Penal Code and under section 5 of the Prevention of Corruption Act, 1947. However, the respondent shall be competent to move the Anti-Corruption Establishment afresh, if required and desired thereof and the matter shall be processed with in accordance with law as expressed above.
In case Muhammad Iqbal, A.S.-I. writ petitioner is under arrest either on physical remand or judicial remand, he shall be set at liberty forthwith, if not required in any other case.
In view of the complexity involved in this writ petition, there shall be no order as to costs.

Q.M.H./M.A.K./M-143/L Petition allowed.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1916 #

2000 P Cr. L J 1948

[Lahore]

Before Iftikhar Ahmad Cheema, J

MUHAMMAD SAJID‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.749/B of 1998/BWP, decided on 3rd February, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(3) & 11‑‑‑Bail, grant‑of ‑‑‑Inherent infirmities were found in prosecution case‑‑‑Prosecution story relating to forcible removal of victim girl from her house to the house of accused was either an exaggeration or acomplete concoction as trespassing of 3/4 persons into courtyard of victim's house where her parents were also sleeping and her forcible removal from her house appeared to be a mystery and quite improbable‑‑‑Two other boys who were alleged to be the culprits by victim were found innocent during investigation‑‑‑Medical examination of victim girl had confirmed that she was used to intercourse as she being an unmarried girl was not found to be virgin‑‑‑Solitary statement of victim girl was not sufficient to warrant conviction of accused unless it was corroborated by some independent source which was not forthcoming because none had witnessed the occurrence‑‑‑In absence of any fresh sign of intercourse or forced intercourse, case appeared to be of .consent between accused and victim‑‑‑Accused was in judicial lock up for the last six months without trial‑‑‑Accused was admitted to bail, in circumstances.

Imran Mehmood Akhtar for Petitioner.

M.A. Farazi for the State

ORDER

Record received and perused. Arguments heard.

The petitioner is charged under sections 11 and 10(3) of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, vide F.I.R. No.267, dated 3‑8‑1998 at Police Station Musafarkhana. The F.I.R. was lodged by Mst. Zarina Bibi (victim) who is an unmarried girl. She alleged in the F.I.R. that she was putting up with her parents in village Rokrani. Muhammad Iqbal is their neighbour. He had been requesting her parents for the hand of the victim (Mst. Zarina Bibi) for his son Sajid (petitioner) but her parents were reluctant. That on the intervening night of 2/3‑8‑1998 she (Mst. Zarina) was sleeping in the courtyard of her house alongwith her parents. At about 2‑00 a.m. she went to the latrine and after urination when she returned to her bed she saw Sajid petitioner alongwith two unknown persons standing at the door of the latrine. One of them was holding a pistol in his hand. She was stunned. They took her in their grip and forcibly removed her to the house of Iqbal where she was detained in a room. Inmates of the house were not present there. Sajid accused committed Zina‑bil‑Jabr with her in that room. Thereafter, the accused persons forced her to thumb‑mark some blank papers. At about 8‑00 a.m. her uncle Allah Nawaz and her first cousin Abdul ,Rehman alongwith some other residents of the village reached the spot. On seeing them approaching the accused persons decamped. She narrated the whole occurrence to her maternal‑uncle and reported the matter at Police Station Musafarkhana, where, her statement was recorded
Learned` counsel for the petitioner has sought bail inter alia on the. grounds; that a false case has been cooked up against the petitioner due to his father's long‑standing enmity with the complainant; prosecution story is improbable and is not worthy of any credence; it is absolutely unthinkable that the petitioner would commit Zina with Mst. Zarina in the presence of his co‑accused standing quite close to them holding a pistol in his hand; that the victim is a harlot which is evident from the medical report; Dr. Rubina Nahid who medically examined the victim has unambiguously stated that in her opinion there was no fresh sign of intercourse or force intercourse, however, vagina was used many time which leads to an irresistible conclusion that the victim was habitual to intercourse. She was, therefore, a woman of easy virtue and if she was unmarried then there is no doubt or dispute that she was a bad character. Learned counsel further contends that the solitary statement of the victim is hardly' sufficient to warrant the conviction of the accused unless it is corroborated by some independent source which is not forthcoming in this case; that the petitioner was minor and less than 14 years of age at the time of occurrence and is now confined in Borstal Jail, Bahawalpur for the last many months.
While opposing the bail petition Mr. M.A. Farazi, Advocate appearing on behalf of the State vehemently contended that the petitioner is named in the F.I.R.; he was previously known to the victim; his identity was, therefore, not in doubt. He committed Zina‑bil‑Jabr with Mst. Zarina which is punishable with 25 years'‑ R.I. the offence. falls within the prohibitory clause of section 497, Cr.P.C.; minority per se is not ground to admit the petitioner to bail; no enmity between the parties has been established during the investigation; even a pimp or procurer would not like to implicate even his arch enemy at the cost of the chastity of his daughter; state of lawlessness which prevails in the country and alarming rise in crime involving moral turpitude demands that the culprits should be dealt with strong hands; the petitioner's admission to bail at this stage would amount to encouraging rascals and rapists like the petitioner who would repeat this offence with impunity unless he is awarded deterrent punishment.
Having given my careful consideration to the arguments propounded by the learned counsel for the parties, I am satisfied that it is a fit case for bail. There are inherent infirmities in. the prosecution case, trespassing of 3/4 persons into courtyard of the victim's house where her parents were also sleeping and her forcible removal from her house to the house of Iqbal, father of Sajid, petitioner appears to be a mystery. Even a shriek or cry of the victim was sufficient to alarm the inmates of the house who were sleeping in the courtyard at a little distance from the petitioner and had they got up the petitioner and his co‑accused could not have forcibly removed the victim from her house even on pistol point because her parents could raise alarm attracting their co‑villagers. After all teen‑agers like the petitioner and his co‑accused could not dare to commit such an act of highhandedness. The prosecution story relating to her forcible removal from her house to the house of lqbal is either an exaggeration or a complete concoction.
I am fully alive that Courts are always share to discuss the merits of the case at bail stage and I would not have departed from this well‑settled principle because it may prejudice the case either way but the prosecution story is patently so ridiculous, improbable and incredible that one is apt to conclude that it is a pack of falsehood. In all probability the victim was carrying on with Sajid petitioner and she left her father's house of her own accord and the victim and the petitioner were surprised by the relatives of the girl when they were in pari delicto. She has also included two other boys, most probably at the instance of her parents, who have been found innocent during the investigation. Her medical examination has confirmed that she is habitual to intercourse. She being an unmarried girl was not virgin: Even otherwise her solitary statement is hardly sufficient to warrant the conviction of the accused/petitioner unless it is corroborated by some independent source which is not forthcoming in this case because on her own showing none had witnessed the occurrence when the petitioner was committing Zina with her. In the absence of any fresh sign of intercourse or forced intercourse the case appears to be a Zina with consent between the petitioner and the victim.
The petitioner is in judicial lock‑up for the last six months without trial. 1, therefore, admit him to bail in the sum of Rs.50,000 with two sureties in the like amount to the satisfaction of trial Court.
Before parting with this order I would like to make it clear that aforesaid observations made by this Court in this bail petition are absolutely tentative in nature and would not affect the prosecution case during the trial. I have every reason to hope that the trial Judge would form his independent opinion after recording evidence with regard to the genuineness of the prosecution version; the probability of prosecution story, medical evidence vis‑a‑vis character of the victim.

H.B.T./M‑203/L Bail granted.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1924 #

2000 P Cr. L J 1954

[Lahore]

Before Riaz Kayani, J

MUHAMMAD JAMIL---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.2749/B of 2000, decided on 5th June, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/324/148/149---Bail, grant of---Accused had been ascribed only aerial firing exhorting his companions to finish deceased and injured---Role of accused facilitating others to commit murder of deceased and to cause injuries to prosecution witness could be determined by Trial Court after evidence would come on record---Case of further inquiry and probe having been made out, accused was entitled to bail.

Mian M. Rafi Mughal for Petitioner.

Najam-ul-Hassan Gill for the State.

Complainant in person.

ORDER

Petitioner, M. Jameel, seeks bail in a case registered vide F.I.R. No.23 of 2000 on 16th of January, 2000 with Police Station Satellite Town, Gujranwala under section 302/342/148/149 read with section 34, P.P.C.

Allegation as contained in the First Information Report authored by one Shaukat Ali is that his brother Liaquat Ali and his cousin Tariq were going in their motor cycle rickshaw driven by his brother Liaqat Ali, when they were confronted with the petitioner and 5 others armed with various weapons. Petitioner was the first who raised a Lalkara exhorting his companions to finish Liaquat Ali as he has quarrelled with them few hours earlier, upon which onslaught was started by the petitioner with an aerial firing followed by fires of Rehman with his :30 bore pistol which hit Liaquat Ali and Muhammad Tariq on face and chest respectively. Once again when the witnesses came to rescue the injured, Rehman fired twice which hit Tariq and he succumbed to his injuries at the spot.
Motive for the occurrence is stated to be en earlier fight at 4-00 p.m. between Rehman one of the co-accused and his brother Liaquat Ali for expressing his inability to get some passengers in the rickshaw.
Post-arrest bail was declined by the Additional Sessions Judge, Gujranwala on 11-5-2000 by holding that in the subsequent part of the F.I.R.; petitioner has been alleged to have fired with his fire-arm at the complainant's brother and Tariq, therefore, discretion was refused to be exercised in favour of the petitioner. .
Learned counsel for the petitioner has lambasted the order of the Additional Sessions Judge, Gujranwala by stating that he misread the F.I.R. totally. It was Rehman in the second round who fired twice with his pistol which hit Tariq and there is no ambiguity, about his role and that the prosecution has not ascribed any role to the petitioner in the second round of firing or causing any injury to the deceased or the brother of the complainant. Learned counsel for the State has got nothing much to say but has opposed the grant of bail on the ground that the petitioner facilitated the murder of Tariq and murderous assault upon Liaquat.
I have attended to the arguments of the learned counsel and have also gone through the record.
Petitioner has been ascribed only aerial firing exhorting his companions to finish Liaquat and Tariq. It has yet to be seen by the trial `Judge when evidence comes on record as to how far the role of the petitioner facilitated others to commit the murder of Tariq and caused injuries to Liaquat. For the present only aerial firing is ascribed to him. Keeping all a these facts in- juxtaposition, petitioner has been successful in making out a case of further inquiry and probe, therefore, accepting his application for bail I exercise my discretion in his favour and allow him bail provided he furnishes security in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the trial Court.
Member Inspection Team of this Court shall send a copy of this order to Mr. Rao Shafey Ali Khan, Additional Sessions Judge, Gujranwala that he should be careful in deciding cases by reading and understanding F.I.Rs. properly, so as to analyse the roles of each of the accused given by the prosecution, and thereafter passing proper orders, not to be rediculed by the bar, when his orders are impugned and come up for scrutiny.

H.B.T./M-190/L Bail allowed,

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1948 #

2000 P Cr. L J 1959

[Lahore]

Before Khalil-ur-Rehman Ramday, J

JAMSHED MEHMOOD BUTT---Petitioner

versus

MUHAMMAD JAWAD and 2 others---Respondents

Criminal Miscellaneous No. 1920/B/C of 2000, decided on 12th May, 2000, Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.302/34---Bail, cancellation of---Accused was found innocent during investigation---Trial Court allowed bail on the ground that two Investigating Officers; one Deputy Superintendent of Police and the other Superintendent of Police, had found that the two accused persons were not present at the time of occurrence and that they had not participated, thus, were innocent---Validity---Discretion exercised by the Trial Court in releasing the two accused persons on bail was not arbitrary or whimsical or perverse---Bail allowed to the said accused persons was not cancelled in circumstances.

Muhammad Ihsan Wayn for Petitioner.

Nafeer A. Malik for Respondents Nos. l and 2.

Ch. Muhammad Ayub for the State.

ORDER

Jawad and Kashif respondents and their father Javaid Akhtar were accused of having murdered one Maqsood Javaid Butt who was the husband of a daughter of Javaid Akhtar accused and, thus, a sister of Jawad and Kashif respondents. The occurrence had taken place on 8-11-1999 at about 1-30 p.m. immediately outside Madrasa-tul-Banaat School where the deceased had gone to meet his children which children had been taken away by the wife of the deceased who was living in' her parental home after matrimonial disputes with her deceased husband. The F.I.R. was recorded on 10-11-1999 at 12-10 a. m. on the statement of the deceased himself when he had allegedly regained consciousness and who had then died on 13-11-1999. He had alleged, as has been mentioned above, that he had gone to the said school to meet his children at the time of the closing of the said school where his father-in-law, namely, Javaid Akhtar and his brothers-in-law, namely, Jawad and Kashif were present; that each one of these three accused persons was armed with automatic pistols and on seeing him all these three accused persons started indiscriminate firing with their respective weapons as a result of which he had received injuries. The deceased had added that the occurrence had been witnessed by Shahid Gulzar and one Zamin Ali. The deceased had been rushed to the hospital by one Shohnaam.

The investigation had been originally conducted by the S.-I./S.H.O. of Police Station Mozang and before he could finalise the said investigation and reach some conclusion, the investigation got entrusted to the D.S.P., Anarkali and he had finalised the investigation. The said matter was later on entrusted to the S.P. Saddar of Lahore for further investigation.
Bail had been allowed to the two respondents essentially on the ground that both these Investigating Officers i.e. the D.S.P. of Old Anarkalil and the S.P. of Saddar, Lahore had found that Jawad and Kashif respondents were not present at the time of occurrence and that they had not participated the same and thus were innocent.
The learned counsel for the petitioner addressed lengthy argument canvassing cancellation of the bail allowed to respondents Nos. l and 2 primarily on the ground that the two respondents stood specifically named in the F.I.R. which had become the dying declaration; that according to this dying declaration both of them had actively participated in the occurrence in question end had fired shots injuring the deceased; that the two eye-witnesses named in the said dying declaration namely, Shahid Gulzar and Zamin Ali had also supported the complainant's version nominating the two respondents as the assailants; that the declaration of innocence of the two respondents made by the two Investigating Officers was not well-founded in law; that in any case the opinion of the Investigating Officer had no binding effect vis-avis the Courts of law; that the plea of alibi raised by the two respondents was a fabrication and in the circumstances the bail allowed to the two accused respondents deserved to be recalled.
The learned counsel for the accused-respondents defended the bail allowed to them on the ground that despite the allegation of indiscriminate fixing by the three alleged assailants with their automatic pistols not a single crime-empty had been found at the spot which was sufficient to falsify the allegation of shots having been fired by three automatic pistols; that the recording of the F.I.R. had been inordinately delayed and the reason offered for this delay i.e.. the unconsciousness of the victim was not reasonable explanation of the delay in lodging of the F.I.R. because the same did not have to be recorded on the statement only of the victim of the occurrence and could have been recorded on the statement of any of the eye-witnesses; that according to the information divulged by the deceased Yaqoob, S.-I./S.H.O.. of Police Station Old Anarkali who was the first to reach the place of occurrence when the deceased was fully conscious it had been told to him by the deceased that he had been assaulted by his father-in-law; that similar was the statement of Shehanaam who had admittedly taken the injured to the hospital and who had also been told by the, deceased that his father-in-law was the one who had caused injuries to him; that even according to the improved version of this Shehnaam what had been allegedly told to him by the deceased was not that it was his father-in-law who had injured him but that injuries had been caused to him by his "in-laws" and the two respondents had not been specifically named even in this improved statement of the said Shehnaam; that the F.I.R. had been recorded after due deliberations and considerations; that the two eye-witnesses never claimed that they had met the deceased outside the school and, thus, the claim of the deceased that these two persons had witnessed the occurrence was open to exception because a large number of persons were present at the time of the closing of the school to fetch their children; that the two respondents are the only sons of Javaid Akhtar accused and that their names had been included only to involve all the male members of the family; that both the Investigating Officers were senior Officers of the Department and their unanimous opinion was that the two respondents were innocent and finally that in view of the attending facts and circumstances it could not be said that the opinion of the two Investigating Officers was whimsical or not based on cogent reasons.
The learned counsel for the complainant/petitioner, the learned counsel for the accused respondents and the learned State Counsel have been heard at length and the record has also been examined with their assistance.
I do not wish to make any comments on the submissions made by the two sides lest the same may prejudice the proceedings which are presently pending or which might follow. Suffice, however, to say that having heard the parties and having gone through the record, I find that the discretion exercised by the learned Additional Sessions Judge in releasing the two respondents on bail could not be said to be arbitrary or whimsical or perverse. This petition is, therefore dismissed.

Q.M.H./M.A:K./J-7/L Petition dismissed.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1954 #

2000 P Cr. L J 1970

[Lahore]

Before Muhammad Nawaz Abbasi and Sheikh Abdur Razzaq, JJ

ALTAF HUSSAIN and another‑‑-Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.22 of 1997, decided on 29th March, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Anti‑Terrorism Act (XXVII of 1097), S.12‑‑‑Death by fire‑‑Allegation of illicit relationship between the male and female accused persons‑‑‑Presumption‑‑‑Mere illicit relations as per suspicion shown would not be enough to raise a presumption that the male accused would be culprit and the deceased (husband of female accused) was set at fire by the female accused with the help of her paramour.

(b) Penal Code (XLV of 1860)‑

‑‑‑‑S. 302/34‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.12‑‑‑Appreciation of evidence‑‑‑Death by fire‑‑‑Extra‑judicial confession of the accused persons‑‑Effect‑‑‑Night time occurrence‑‑‑Deceased when examined by the doctor in injured condition was fully conscious‑‑‑None of the prosecution witnesses disclosed that he was set on fire by either of the accused persons‑‑‑Evidence of extra judicial confession was also shaky and was not confidence inspiring‑‑‑Evidence brought on record in support of charge, was not appealing that the occurrence had taken place in the manner as claimed by the prosecution‑‑‑Effect‑‑‑Where the evidence of the prosecution was of a doubtful character and was not confidence inspiring, the conviction imposed by Trial Court was not sustainable‑‑‑Benefit of doubt was extended to the accused persons, in circumstances.

‑‑‑‑S. 302/34‑‑‑Extra judicial confession‑‑‑Prosecution witnesses failed to disclose as to why the accused had confessed their guilt before the witnesses without seeking any help from them‑‑‑In absence of any direct evidence, it was not understandable that why the accused persons would create evidence against them in the form of extra judicial confession‑‑‑Such confession was doubtful in circumstances.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.12‑‑‑Death by fire‑‑Proof‑‑‑Purchase of kerosine oil at day time would not be sufficient to suggest that oil was arranged for the use in the occurrence.

Shahid Maqbool Mirza for Appellant.

Raja Saeed Akram, A.A. ‑G. for the State.

Date of hearing; 29th March, 2000.

JUDGMENT

MUHAMMAD NAWAZ ABBASI, J.‑‑‑ Altaf Hussain and Mst. Shamim Mai appellants have challenged the judgment, dated 11‑11‑1997 by virtue of which the learned Special Judge, Anti‑Terrorism Court, Multan, on finding the appellants guilty of charge under section 302/34, P.P.C. convicted and sentenced each of them to death for committing the murder of Muhammad Shafi deceased.

This judgment will dispose of the murder reference sent by the learned Special Judge for confirmation of the death sentence awarded to the appellant as well as their appeal against the conviction and sentence.
The occurrence in the present case took place in the night of 28/29‑1‑1996 at 11‑00 p.m. in Ittefaq Colony in the house of complainant situated at a distance of 1‑1/2 Kms. from the Police Station Gulgashat Colony, Multan.
The report of occurrence was lodged by Muhammad Sarfraz P.W.12 brother of Muhammad Shafi deceased through statement Exh.P.D. made by him before Abid Hussain, A.S.‑I. of Police Station Gulgashat Colony at 10 a.m. on 1‑2‑1996 at Chowk Ghazi Abad, accordingly a case was registered against the appellant through F.I.R. Exh.P.D./1 which was recorded by Afzal Moharrir/H.C. on 1‑2‑1996 at 10‑30 a.m. at the Police Station Gulgashat Colony, Multan.
The prosecution case as contained in the F.I.R. is that Muhammad Shaft real brother of Muhammad Sarfraz complainant was resident of Chah Usmanwala, Mouza Beeranwala. Muhammad Shaft deceased was married with Mst. Shamim Mai appellant daughter of Ahmad Bukhsh of the same village about 30 years back. Mst. Shatnim Mai was of bad. character and Muhammad Shafi her husband often used to restrain her from carrying illicit relations with . Altaf Hussain appellant resident of Billiwala as she in connivance with her paramour wanted to murder him. On the night between 28/29‑1‑1996, Mst. Shamim appellant and Muhammad Shafi deceased went to the house of their daughter Mst. Parveen to see her and stayed at the house of Muhammad Ayyub their son‑in‑law at Ittefaq Colony. The complainant was intimated by Muhammad Ayyub that his brother Muhammad Shaft deceased was burnt with fire at 11‑00 p.m. on that night. The complainant on reaching at the house of Muhammad Ayyub, found that Zafar Iqbal and Muhammad Hafeez son of Sultan resident of Zikraya Town were sitting at the house of Muhammad Ayyub who told him that on hue and cry raised by Muhammad Shafi at 11 p.m. they noticed Altaf appellant running from the house of Muhammad Ayyub by scaling over the wall and Mst. Shamim appellant was washing her hands at the hand pump. They without loss of time put off the fire and took Muhammad Shaft deceased to the Nishtar Hospital who told them that Mst. Shamim Mai and Altaf Hussain appellants had set him on fire. The complainant charged Mst. Shamim and Altaf Hussain appellants as murderers of his brother. The complaint Exh.P.D. was recorded by Abid Hussain, A.S.‑I. P.W.15 which was sent by him to the police station through Abdul Salam P.W.1 a constable for formal registration of the case and on the basis of said statement F.I.R. was recorded by Muhammad Afzal Moharrir/H.C./P.W.2 and then P.W.15 visited the spot, inspected the place of occurrence and prepared the site plan Exh.P.H. He recorded the statement of the P.Ws. and took into possession Shalwar P.1, Jacket P.2 of deceased in burnt condition vide recovery memo. Exh.P.A. on the production of the same by Muhammad Sarfraz complainant. He collected ash (Exh.P.B.) from the kitchen of the house and the place of occurrence. He sealed the same into a parcel and took into possession the burnt cot P.3 from the place of occurrence vide memo. Exh.P.C. Then he visited Nishtar Hospital where Muhammad Shaft deceased in injured condition was admitted and prepared injury statement Exh.P.1 of Muhammad Shaft and also got him medically examined, however, on application Exh.P.1/1 moved by P.W.15 the doctor reported that Muhammad Shaft was not fit to make statement and later Muhammad Shaft deceased then expired on 2‑2‑1996 in the Nisthar Hospital. Abid Hussain A. D. I. /P.W.15 after preparing death report Exh.P.J. of Muhammad Shaft deceased and added section 302, P.P.C. in the case. He collected the complete record of the M.L.R. and other reports relating to the deceased from the. M.S., Nishtar Hospital, Multan and while preparing the inquest report Exh.P.F./1 and injury statement Exh.P.F. sent the dead body of the deceased for post‑mortem examination. On 4‑2‑1996 Aftab Ahmed Khan, S. H. O. /P. W. took over the investigation from P.W.15.
The accused was charged under section 302/34, P.P.C. and they while pleading not guilty claimed trial. The prosecution in support of the charge against accused examined 20 P.Ws. The accused in their statement under section 342, Cr.P.C. having denied the charge of murder of deceased stated that they have been falsely implicated. Learned trial Court after considering the evidence on record convicted and sentenced the appellants under section 302/34, P.P.C.
We have heard the learned counsel for the parties and perused the record.
The evidence produced by the prosecution was in the form of ocular account extra judicial confession, declaration of the deceased, medical evidence, recoveries with positive report of Chemical Examiner and circumstantial evidence. Mst. Shomila daughter of Muhammad Shaft a girl of adult 9 years was examined as P.W.9 who deposed that on the direction of her mother she fetched kerosene oil from the Bazar‑and during the night of same day her father was set at fire. . Muhammad Ayyub son‑in‑law of Muhammad Shaft and Mgt. Shamim accused stated that during the night of occurrence the deceased and Mst: Shamim accused were staying at his house who were accommodated in a separate room and at 11 p.m. on noise from their room he attracted to them and found that the deceased burnt due to fire and Altaf accused who was present near the deceased scaling over. the wall of home fled away from the spot. Muhammad Hafeez P.W.11 who also reached at the spot at the time of occurrence deposed in corroboration to the statement trade by Muhammad Ayub. Muhammad Iqbal P.W.6 and Muhammad Talib Hussain P.W.7 have deposed that Altaf accused disclosed before them that he in connivance with Mst. Shamim committed the murder of Muhammad Shafi by setting him at fire. Similarly Ghulam Hussain and Haq Nawaz P.W.8‑9 respectively stated that Mst. Shamim confessed her guilt before them on 9‑2‑1996. When they were present in the house of Ghulam Hussain. Muhammad Bashir P.W.4 claimed that when he went to see Muhammad Shafi deceased in the Nishtar Hospital, Multan, the deceased told him that Mst. Shamim sprinkled kerosene oil on him and Altaf accused set him at fire. Muhammad Sarfraz P.W.12 real brother of the deceased stated that the relations of deceased with Mst. Shamim were not cordial as she was carrying illicit relation with Altaf accused. Dr. Jehangir Asad, Medical Officer, P.W.17 who medically examined the deceased in injured condition found burnt injuries on the face, chest, abdomen, hands, lips and limbs of the deceased. However, Dr. stated that' at .the time of examination the patient was fully conscious. Dr. Mehr Noor Ahmed P.W.3 conducted post‑mortem on the dead body of Muhammad Shafi, deceased on 3‑2‑1996 and found burnt injuries and opined that death was caused due to these burnt injuries. The accused, however, denied the charge and pleaded non guilty. The learned trial Court while believing the prosecution evidence held the appellant guilty of the charge.

9: Learned counsel for the appellant contended that there was no ,direct evidence of throwing the kerosene oil on the body of the deceased and set him at fire, therefore, the evidence brought by the prosecution would not establish the charge and possibility that the deceased being smoker while smoking cigarette caught fire and as a result of which sustained burnt injuries and ultimately died in the hospital.

Learned counsel for the State while supporting the judgment contended that there was sufficient direct as well as circumstantial evidence to connect the appellant with commission of offence.
We have heard the learned counsel for the parties and perused the record with their assistance. The occurrence took place at 11 p.m. during the month of February when deceased was sleeping inside the room. Before going into the question that how deceased caught fire, the question relating to the presence of Altaf Hussain at the spot would need attention. The deceased with his wife on a chance visit to see their daughter was staying in the house of his son‑in‑law and normally Altaf accused would have no knowledge about the availability of the deceased in the house of their daughter. This is noticeable that no one took notice of the entry of Altaf in the house and further it ,is not in the evidence that some light was available in the courtyard and A1taf Hussain while running from the spot was identified in the light. Muhammad Ayyub deposed that Altaf Hussain was present near the deceased at the time of occurrence and except this statement of Muhammad Ayyub who did not make any attempt to apprehend Altaf. There is no evidence to suggest that during the night Altaf Hussain visited the house of Muhammad Ayyub. The mere illicit relations of Mst. Shamim withl Altaf Hussain if any as per suspicion shown would not be enough to raise al presumption that Altaf Hussain would be the culprit and the deceased was set at fire by Mst. Shamim with the help of her paramour Altaf Hussain. Admittedly the witnesses reached at spot at the noise of deceased but no one claimed that at that time deceased has disclosed that he was set at fire either by Mst. Shamim or Altaf Hussain as it is in the statement of doctor that deceased was fully conscious at the time of examination. The evidence of extra judicial confession is also shaky and is not confidence inspiring. The witnesses have not disclosed that why the appellant confess their guilt before them without seeking any help from them. It is not understandable that why accused would create evidence against them in the form of extra judicial confession in absence of any direct evidence. Similarly the evidence of minor daughter of deceased and his son‑in‑law is not helpful to the prosecution as none .of them has seen the accused either sprinkling oil or setting the deceased at fire. It was not prosecution case that the deceased and his wife Shamim had gone to see their daughter in the house of Muhammad Ayyub their son‑in‑law with their minor daughter who was sleeping with them at the time of occurrence. The purchase of kerosene oil by her from the bazar at day time would not be sufficient to suggest that oil was arranged for the use in the occurrence. The evaluation of the evidence in its totality would not rule out the possibility that the deceased while smoking cigarette in the bed during the cold night of winter accidentally caught fire and as a result thereof during sleep sustained burnt injuries. From the evidence brought on record in support of charge it is not appealing that occurrence had taken place in the manner as claimed by the prosecution and the same being of doubtful character is not confidence inspiring to sustain conviction. For the foregoing reasons we while extending benefit of doubt to the appellants acquitted them from the charge and allowed this appeal.

Q.M.H./M.A.K./A‑66/L Appeal allowed.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1959 #

2000 P Cr. L J 1994

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

GHULAM FARID and another---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No.343/B of 2000, decided on 18th April, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of .1979), S.10(3)/ll---Bail---Case had been registered after six years of the occurrence---Complainant after her abduction had lived with one of the accused as his wife and given birth to two children during this period---Said accused had claimed the complainant to be his legally-wedded wife and in support of his claim had relied on a registered Nikahnarna---Case against accused, in circumstances, prima facie, called for further inquiry and they were released on bail accordingly.

Abdul Rasheed Rashid for Petitioners.

Abdul Ghani for the State.

ORDER

Petitioners seek their post-arrest bail in case F.I.R. No.24 of 2000, dated 18-1-2000 registered under section 10(3)/11 of the Offence of Zina (Enforcement of Hudood) Ordinance No. VII, 1979 at Police Station Liaqatpur. Precise allegation against the petitioners as penned in the F.I.R. is that they alongwith their co-accused forcibly abducted Mst. Kalsoom Bibi (complainant of the instant case) for the purpose of illicit liaison. Further that Mst. Kalsoom Bibi was kept by Ghulam Farid (petitioner) till the registration of this case and during this period, she gave birth to two children and now after the delay of six years the complainant found an opportunity to manage her escape from the clutches of the petitioners.

Learned counsel for the petitioners submits that Mst. Kalsoom Bibi (the complainant) is legally-wedded wife of the petitioner namely Ghulam Farid as they got married on 11-2-1994 and that the present case has been registered against the petitioners with mala fide intention. It is also argued that Punnon petitioner (being real brother of the petitioner namely Ghulam Farid) has been arraigned as accused person, hence, in the circumstances of this case both the petitioners are entitled to the concession of bail. Conversely, learned State Counsel has vehemently opposed the grant of bail.
After hearing both the parties and perusing the record, it has been observed that this case was got registered after six years of the occurrence. After the abduction of Mst. Kalsoom Bibi (complainant), she was kept with the petitioner namely Ghulam Farid as his wife and during this period, two children were born. The stand of the petitioner Ghulam Farid is that Mst. Kalsoom Bibi is his legally-wedded wife and in support of this stand, reliance has been placed on Nikahnama registered at Ward No.109-B, Rahimyar Khan. Long delay in lodging the F.I.R. coupled with documents relied upon by the petitioners, prima facie, make out the case of the petitioners falling within the ambit of further enquiry entitling them to the grant of bail. Accordingly, this petition is allowed and the petitioners are admitted to bail subject to furnishing bail bonds to the tune of Rs.50,000 each with one surety each in the like amount to the satisfaction of learned trial Court.

N.H.Q./G-45/L Bail allowed.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1970 #

2000 P Cr. L J 2021

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

MUHAMMAD ASHRAF‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.715 and 828 of 1998, heard on 4th April, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Sentence‑‑‑Reduction‑‑‑Parties being closely related to each other there was no question of mistaken identity and false implication of accused‑‑‑Mere non‑mentioning of seven fires instead of five would not make prosecution story doubtful because when fires were being shot simultaneously, genuine mistake could take place in giving number of said fires and when shots were fired, person receiving same could turn to any side and in that process fire could hit on any part of his body‑‑Evidence on record had proved that accused had committed murder of deceased‑‑‑Motive of occurrence had also been proved‑‑‑Occurrence had taken place on account of altercation between the parties at spur of the moment and in heat of passion something developed or some remarks were given by deceased which provoked accused and he fired indiscriminately‑‑Case, in circumstances, was not of capital punishment‑‑‑Conviction of accused was upheld but death sentence awarded to accused by Trial Court was converted into life imprisonment.

M.A. Zafar for Appellant.

Cfor the State.

Inayat Ullah Cheema for the Complainant.

Date of hearing: 4th April, 2000.

JUDGMENT

KHAWAJA MUHAMMAD SHARIF, J.‑‑‑ This judgment will dispose of Criminal Appeal No.715 of 1998 filed by Muhammad Ashraf, appellant, who was convicted and sentenced by Judge, Special Court, Khushab constituted under the Suppression of Terrorist Activities Act, 1975 vide his judgment, dated 2‑7‑1998 with death as Qisas within the meaning of section 302(1), P.P.C. with further direction to pay Rs.one lac to the legal heirs of the deceased as required under section 544‑A, Cr.P.C. or in default six months' R.I.

Abdul Shakoor and Muhammad, co‑accused, of the appellant were acquitted of the charge by the learned trial Court vide its judgment of even date. Complainant, Gulzar Ahmad, has filed Criminal Appeal No.828 of 1998. against the acquittal of abovesaid co‑accused of the , appellant which shall also be disposed of through this single judgment.
Occurrence in this case took place at 3‑15 p.m. on 15‑5‑1996 within the Revenue Estate of Chak No.50/MB, which is at a distance of 9 Kms. away from Police Station, Jauharabad, while the matter was reported to the police at 4‑30 p.m. on the same day by Gulzar Ahmad complainant P.W.10 and the formal F.I.R. Exh.P.J. was recorded by Khurshid Ali, S.‑I. P.W.12, r
According to the F.I.R. Exh.P.J., the facts of the prosecution case are that Mst. Surraya and Mst. Razia, real sisters of Gulzar Ahmad complainant were married with Muhammad Ashraf and Abdul Shakoor about six years prior to the occurrence respectively. Irshad Ali another brother of the complainant was engaged with Mst. Naseem Akhtar daughter of Imam Din with the consent of her parents. Muhammad Ashraf and Abdul Shakoor were opposing this engagement. They asked them to desist from this marriage. The parents .of Ashraf also took Abdul Shakoor and Ashraf into confidence but it was taken as ill by them. On 15‑9‑1996 at 9‑00 a.m. marriage procession of Irshad Ali was to proceed to the house of Imam Din. At the request of Muhammad Ashraf the time of marriage procession was fixed as evening instead of 9‑00 a.m. At about 3‑15 p.m., complainant alongwith Muhammad Yaqoob and Muhammad Anwar were in the street when Muhammad Ashraf and Abdul Shakoor came there in a car which was being driven by an unknown driver. Driver remained in the car. Abdul Shakoor stood near them while Muhammad Ashraf went to his house and after a short while returned back with Irshad Ali. The moment Irshad reached near the Baithak of Barkat Ali, Muhammad Ashraf brought out .30 bore pistol and opened fire at Irshad Ali which hit at his back side of chest. Irshad Ali made an attempt to take a turn but in the meantime, Muhammad Ashraf fired four further shots which hit Irshad Ali at right flank and right and left upper arm. Irshad Ali fell down on the ground and thereafter Abdul Shakoor, Muhammad Ashraf and the driver fled away.
After registration of the formal F.I.R., Khurshid Ali, S.‑I. (P.W.12) proceeded first to the hospital, prepared injury statement Exh.P.E., inquest report Exh.P.F. and then proceeded to the spot; collected blood‑stained earth and took the same into possession vide memo. Exh.P.B.; crime‑empties P.4/1‑5 were also taken into possession vide memo. Exh.P.C. and he recorded statements of the witnesses under section 161, Cr.P.C. The investigation was then taken over by Muhammad Sher, A.S.‑I. On 5‑6‑1996, Muhammad Ashraf while in police custody led to the recovery of pistol P.5 which was, taken into possession vide memo. Exh.P.G. On the same day, Ejaz accused led the Investigating Officer to the recovery of car which was taken into possession vide memo. Exh.P.H. After completion of the investigation, challan was prepared by Abdul Majeed, S.H.O.
Prosecution in order to prove its case produced 14 witnesses in all out of whom Gulzar Ahmad (P.W.10) and Muhammad Anwar (P.W.;1,1), were eye‑witnesses while the doctor who conducted post‑mortem examination on the dead body of Irshad Ali on 16‑5‑1996 was examined as P.W.6. Thereafter, the learned Deputy District Attorney tendered in evidence report of the Chemical Examiner, Exh.P.M., report of the Serologist Exh.P.N. and that of the Forensic Science Laboratory Exh.P.O. Then statements of the accused were recorded under section 342, Cr.P.C. in which they pleaded innocence and claimed false implication. After conclusion of the trial, appellant and his co‑accused were convicted and acquitted respectively.
Learned counsel for the appellant Muhammad Ashraf has read before us the prosecution evidence, statement of the appellant recorded under section 342, Cr.P.C. and submits that it was an un witnessed occurrence and that arrangements of marriage were towards south side of house of the complainant. Adds that main door of the house of the complainant also opens towards the south while the occurrence had taken place towards the northern side. Further adds that the house of Muhammad Anwer P.W. was also towards south. Learned counsel submits that both the eye‑witnesses, namely, Gulzar Ahmad and Muhammad Anwer (P.Ws.10 and 11 respectively) who are cousins inter se were consistent on the point that five shots were fired by the appellant and first shot hit on the back of the deceased. Further submits that according to post‑mortem examination conducted by Dr. Umar Ali Shah, P.W.6, injury on the back of the deceased was an exit wound and moreover, there are seven entry wounds which means that seven fires were shot by the appellant and not the five. He also submits that had the eye‑witnesses been present at the spot they must have stated that in fact seven shots were fired. Also submits that motive has not been proved by the prosecution. Learned counsel lastly, submits that it is not a case of capital punishment because the occurrence had taken place without any premeditation and at the spur of the moment.
On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that date, time and place of occurrence has not been disputed by the appellant, parties are closely related to each other so there was no question of Ostaken identity and false implication and that it was a broad daylight occurrence. He submits that judgment of the learned trial Court is based on evidence and the judgment of the learned trial Court be maintained.
We have heard learned counsel for the parties and have also gone through the evidence recorded by . the learned trial Court with their assistance. In the instant case, two real sisters of the deceased and complainant were married to the appellant and his brother, Abdul Shakoor. It ', was not a case of false ‑implication. Mere non‑mentioning of seven fires instead of five would not make the prosecution story doubtful because when the fires are being shot simultaneously then there can be genuine mistake in giving the number thereof. Moreover, when the shots are fired, the person who receives the same can turn to any side and in this process fire can hit on any part of his body. We are fully convinced that it was Muhammad Ashraf appellant who had committed the murder of the deceased. Then we have also to see as to what was reason why the appellant committed the murder of the deceased. If we go through the suggestion made by the appellant to the eyewitnesses during the cross‑examination before the learned trial Court and specially answer to question No .4 would show that in fact one of the sister of appellant namely, Naseem Akhtar was given to Irshad Ali deceased as his wife but it looks that on the day of occurrence when the marriage had to take place, complainant party and particularly Irshad Ali deceased asked the hand of Mst. Shahida Parveen for his real brother Babar which was refused by the appellant.' Why the hand of Shahida Parveen was asked by Babar, the reason was that two real sisters of the deceased and the complainant, as mentioned above, were married to appellant and his real brother. On this, we are convinced; an altercation took place between the parties at the spur of the moment and in the heat of passion, something developed or some remarks were given by the deceased which provoked the appellant and he fired indiscriminately. At this stage, answer to question No.4 given by the appellant in his statement recorded under section 342, Cr.P.C: is reproduced below:

"It is correct. The M4 facts are that the lunch was prepared for the guests of marriage at boon time because there was too hot and also the complainant all of a sudden raised a demand that my younger sister. Mst. Shahidat Peen be also married with his brother Babar which was not accepted by my parents who were never prepared to gist ' Shahida with said Babar. To solve this controversy, the time was fixed as 5‑00 p.m. The complainant and his father felt aggrieved about this situation."

So, keeping in view the statement of the eye‑witnesses, circumstances of the case, near relationship of the parties and suggestions made by the appellant during the cross‑examination and also answer to question No.4, in his statement recorded under section 342, Cr.P.C., we are of the view, that it is not a case of capital punishment. We, therefore, tough maintain the conviction under section 302(b), P.P.C. but reduce the same to life imprisonment with the benefit of section 382‑B, Cr.P.C. The compensation awarded by the learned trial Court is, however, maintained. Murder reference is answered in the negative. Death sentence awarded to the appellant by the learned trial Court is not confirmed.

With the abovesaid modification in sentence, this appeal stands disposed of.

H.B.T./M‑201/L Order accordingly.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1994 #

2000 P Cr. L J 2012

[Lahore]

Before Muhammad Nawaz Abbasi Sheikh Abdur Razzaq, JJ

NIAZ ALI ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 158‑ of 1994 and Murder Reference No. 2 of 1995, heard on 15th December, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Sentence‑‑‑Alteration of‑‑Complainant and other prosecution witness who had furnished ocular account and motive behind occurrence, while repeating story of F.I.R. had corroborated each other on each material point with no describable contradiction or discrepancy‑ ‑‑Presence of witnesses who were closely related to deceased, near the place of occurrence with their cattle at some distance from their Deras was quite natural "and was beyond doubt‑‑Prosecution witnesses though were closely related to deceased, but they had no enmity against accused‑‑‑Occurrence had taken place in broad daylight within sight of prosecution witnesses‑‑‑Said witnesses had stated that deceased was given injury with blunt side of hatchet on the back of his head and said injury was corroborated by the medical report‑‑Prosecution having proved case against accused without any shadow of doubt, conviction of accused was upheld, but nature of injury on person of deceased and circumstances under which occurrence had taken place had found some mitigation in favour of young accused in matter of sentence‑‑‑Sentence of death awarded to accused by Trial Court was altered to imprisonment for life accordingly.

Arshad Ali Chaudhry for Appellant.

Muhammad Ayub Kiani for the State.

Date of hearing: 15th December, 1999.

JUDGMENT

MUHAMMAD NAWAZ ABBASI, J.‑‑‑ The appellant namely Niaz Ali son of Jan Muhammad alongwith his real brother Gulab Khan was tried for the charge under section 302/34, P.P.C. in. a case F.I.R. No.322, dated 4‑10‑1992 registered at Police Station Sarai Alamgi; by the learned Sessions Judge, Jhelum, for committing the murder of Muhammad Bashir. The learned trial Judge having found him guilty of the charge convicted and sentenced him to death under section 302, P.P.C. through judgment, dated 11‑12‑1994. Gulab Khan was, however, acquitted from the charge.

The appellant has challenged his conviction and sentence through Criminal Appeal No. 158 of 1994 whereas Najabat Ali complainant of the case has filed Criminal Revision No.42 of 1995 for setting aside the acquittal of Gulab Khan and for the payment of compensation to the legal heirs of the deceased under section 544‑A, Cr.P.C. ‑The trial Court has sent Murder Reference No.2 of 1995 under section 374, Cr.P.C. for confirmation of death sentence awarded to the appellant. The criminal appeal and criminal revision alongwith murder reference are disposed of through this single judgment.
Najabat Ali P.W.9 the first informant, made a statement Exh.P.C. at the Police Station Sarai Alamgir on the basis of which F.I.R. Exh.P.C./1 was chalked out which contained the following facts:‑‑

"On 4‑10‑1992 at about Degarvela Najabat Ali complainant alongwith Muhammad Afzal son of Rajwali. and Muhammad Bashir deceased were proceeding towards their Deras with their cattle and when they reached near Pabbi suddenly Niaz Ali and Gulab Khan sons of Jan Muhammad armed with hatchets appeared at the scene raising Lalkaras that Muhammad Bashir would not be spared on that day. Simultaneously Niaz Ali with blunt side of the hatchet gave blow to Muhammad Bashir on his head within the sight of the complainant and his companions namely Muhammad Afzal and Ghulam. The complainant immediately took the deceased in an injured condition to T.H.Q. Hospital, Kharian for treatment. The motive behind the occurrence as narrated in the F.I.R. was that about a year earlier a quarrel took place between Muhammad Bashir and Noor Ali which was settled at the Brotheri level but Niaz Ali and Gulab Khan nephew of said Noor Ali having developed grudge were revengeful and for same reason attacked on Muhammad Bashir. "

Initially the case was registered under section 324/337‑A(ii)/34, P.P.C. but later on the death of Muhammad Bashir in Hospital section 302, P.P.C. was added. Arif Hussain Shah, S.‑I. after recording the statement Exh.P.C. of the complainant sent the same to police station for registration of case through a constable and accordingly a case was registered through F.I.R. Exh.P.C./1 on the same day. The S.‑I. on the next day of occurrence, on receipt of information about the death of Muhammad Bashir reached in the hospital and prepared inquest report Exh.P.J. and injury statement Exh.P.F. of Muhammad Bashir deceased and handed over the dead body to Gulzar Hussain, Constable for post‑mortem examination. Arif Hussain Shah, S.‑I. during the spot inspection collected blood‑stained earth in a sealed parcel through memo. Exh.P.G. and also prepared rough site plan Exh.P.K. of the place of occurrence. He recorded the statements of the witnesses under section 161, Cr:P.C. and took into possession the last‑worn clothes of the deceased through memo. Exh.P.A. which were sent to the Moharrir of the police station to be kept in safe custody and got prepared the site plan Exh.P.L. and Exh.P.L./1 of the place of occurrence from a draftsman on the pointation of the witnesses. He arrested Niaz Ali accused on 16‑10‑1992 and on 25‑10‑1992, said accused in presence of Shah Muhammad and Muhammad Malik, while in police custody, led to the recovery of hatchet P.5 from his residential house which was taken into possession vide memo. Exh.P.B. and also prepared rough site plan Exh.P.B./1 of the place of recovery of hatchet. At the conclusion of the investigation, the Investigating Officer after declaring Gulab Khan as innocent placed him in ,column No.2 of the final report and challaned the appellant to face the trial.
The prosecution produced twelve witnesses in all in support of the charge. Muhammad Malik, a police constable P.W.1 took the sealed parcels of case property to the office of the Chemical Examiner, Lahore, Gulzar Hussain, H.C. P.W.2 was handed over the dead body of Muhammad Bashir for post‑mortem examination who produced the last‑worn clothes of the deceased after post‑mortem examination before Arif Hussain Shah, S.‑I. Nighat Mahmood P.W.3 identified the dead body of Muhammad Bashir. Shah Muhammad P.W.4 and Muhammad Malik P.W.5 are the witnesses of the recovery of hatchet P.5. Muhammad Asghar, H.C. P.W.6 on receipt of the complaint Exh.P.C. prepared the formal F. I. R. Exh.P.C./1. and kept the sealed parcel of the blood‑stained earth in Police Malkhana in safe custody. P.W.7 Dr. Muhammad Farooq Bangash, Medical Officer, T.H.Q. Hospital, Kharian, District Gujrat conducted the medical examination of Muhammad Bashir on 4‑10‑1992 P.W.8 Dr. S. Ali Muhammad, Medical Officer; T.H.Q. Hospital, Kharian conducted autopsy on the dead body of Muhammad Bashir on the next day of the fateful incident. P.W.9 Najabat Ali and P.W.10 Muhammad Afzal are the eye‑witnesses of the occurrence. P.W.Ii Arif Hussain Shah investigated the case and P.W.12 Akhtar Naqqash, Draftsmen, prepared the site plan.
Dr, Muhammad Farooq Bangash P.W.7 medically examined Muhammad Bashir in an injured condition and observed the following injury on his person:‑‑

"A lacerated wound 5 c.m. x 3/4 c.m. x bone deep on the back of head. The condition of the patient was serious. The injury was caused with blunt weapon and its duration was 6 hours."

Dr. S. Ali Muhammad P.W.8 conducted autopsy on the dead body of Muhammad Bashir and found the following injury:‑‑ .

"lacerated wound 5 c.m. x 3/4 c.m. into deep on the back of head."

Dr. has opined that the injury was caused with blunt weapon, which was sufficient to cause death in the ordinary course of nature.

Najabat Ali complainant P.W.9 and Muhammad Afzal P.W.10 have furnished the ocular account of the prosecution case and the motive behind the occurrence. The witnesses while repeating the story of the F.I.R: have corroborated each other on each material point with no describable contradiction or discrepancy. They have categorically stated that Niaz Ali inflicted blow with blunt side of the hatchet on the head of Muhammad Bashir, who fell down on the ground and that while they were taking Muhammad Bashir to the hospital, they met Arif Hussain Shab, S.‑I. who recorded the statement Exh.P.C. of Najabat Ali complainant. The presence of the witnesses who are closely related to the deceased near the place of occurrence with their cattle at some distance from their Deras was quite natural, therefore, their presence near the place of occurrence was beyond doubt. The witnesses although are closely related to the deceased but they have no enmity against the accused and have direct knowledge of the quarrel of the deceased with Noor Ali and the feelings of the accused against the deceased. The appellant in his statement under section 342, Cr.P.C. while denying the charge has pleaded false implication and innocence.
The‑fateful occurrence took place in the broad daylight within ‑the sight of the P.Ws. at some distance from their Deras. They have stated that the deceased was caused an injury with blunt side of the hatchet on the back of head. Doctor has found the single injury on the persons of the deceased as described by the witness. .
Learned counsel for the appellant without contesting this appeal on merits argued that since the appellant is a young man and had no direct motive against the deceased except that he while developing grudge against the deceased of the insult of his maternal‑uncle caused him a single injury, which proved fatal and in view of this background, it was not a case of extreme penalty of death.
Learned counsel representing the State has not been able to point any special circumstances to show that it was not a case of lesser penalty.
We having heard the learned counsel for the parties and gone through the evidence find that the appellant while nursing a grudge against the deceased for insult of his maternal‑uncle inflicted a single blow to the deceased which proved fatal and despite having opportunity did not cause further blow to the deceased. The appellant being a young man having no patience to tolerate the insult of his maternal‑uncle by the deceased took extreme step of causing such a fatal injury to the deceased. We, therefore, in view of the circumstances under which the occurrence took place find some mitigation in favour of the appellant in the matter of sentence. Thus, we while altering the sentence of death awarded to Niaz Ali appellant into imprisonment for life under section 302(b), P.P.C. dismiss his appeal and answer the murder reference in negative.
For the foregoing reasons, we do not find any substance in the criminal revision filed by Najabat Ali complainant, which is accordingly dismissed, to the extent of acquittal of Gulab Khan respondent. However, on conviction in such cases, the payment of compensation is mandatory under t section 544‑A, Cr.P.C. We, therefore, allow criminal revision to the extent of payment of compensation and direct that the appellant shall pay Rs.50,000 as compensation to the legal heirs of the deceased and in default of the payment of compensation, he will suffer S.I. for six months and the compensation shall be recovered from him as arrears of land revenue. With the above modification in the sentence, Criminal Appeal No. 158 of 1994 filed by Niaz Ali appellant and Criminal Revision No.42 of 1995 are dismissed. The death sentence is not confirmed and the murder reference is answered in the negative.

H.B.T./N‑24/L Order accordingly.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 1995 #

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2000 P Cr. L J 1995

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

SHAFQAT HUSSAIN and another---Appellants

versus

Malik SARFRAZ and another---Respondents

Intra-Court Appeal No.778 of 1999, decided on 26th April, 2000..

(a) Interpretation of statutes---

----Rules under an Act---Significance and status---Rule not to override the statute or the general law---Rule or bye-law made under a statute cannot, unless there are express indications under the statute itself, override the provisions of other statutes or the general law, nor can a rule militate against the provisions of an Act under which it has been framed and must be treated for all purposes of construction or obligation exactly as if they were in the Act and/or to be of the same effect as if contained in the Act and are to be generally noticed for all purposes of construction and obligation .

Interpretation of Statutes by Biridra, 7th Edn. p.828; Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423; Messrs Neelam Textile Mills Ltd. v. State Bank of Pakistan and 2 others PLD 1999 Kar. 433; Mst. Fatima Bai Suleman and others v. Pakistan State Oil Company Ltd. Dawood Centre, M.T. Road, Karachi 1997 MLD 2155: Messrs Pak Army Furnishing Stores v. Syed Ali Akbar Rizvi and others PLD 1985 Kar. 201 and Khan Ajun Khan v. The Government of West Pakistan and others PLD 1958 (W.P.) Pesh. 191 ref.

(b) West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961)---

----Ss. 3 & 6---Prior permission for registration of case against a public servant was not a statutory requirement---Seeking permission of the Authorities before registration of the case against public servants is' beyond the scope of S.3 of rule-making powers given _to the Government under S.6 of the West Pakistan Anti-Corruption Establishment Ordinance; 1961, as neither of these two provisions authorises the Executive to frame Rules seeking prior permission for the registration of cases.

----S. 5(2)---Penal Code (XLV of 1860), S.161---Criminal Procedure Code (V of 1898), S.154---West Pakistan Anti-Corruption Establishment Ordinance (XX of 1961), S.8---Punjab Anti-Corruption Establishment Rules, 1985, Rr.6 & 7---Quashing of F.I.R.---Contention was that registration of the F.I.R. by the Anti-Corruption Establishment being in gross violation of Rr.6, 7 & 8 of the Punjab Anti-Corruption Establishment Rules, 1985, any further proceedings under the said F.I.R. would be a nullity in the eyes of law and the same be quashed---Validity---Law embodied in S.154, Cr.P.C. under which criminal cases are registered and after detailed investigation guilt or innocence of accused is determined, had stood rigours of time for more than a century which could not be allowed to become subservient to be governed by subordinate legislation contained in the Rules as S.8 of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 had itself provided that the provisions were in addition to and not in derogation to any other law---Accused could not claim by way of right that contrary to the provisions of 5.154, Cr.P.C., Rr.6 & 7 of the Punjab Anti-Corruption Establishment Rules, 1985 had conferred upon them a right -to be subjected to a preliminary inquiry first and thereafter permission to register the case be obtained.

Muhammad Sharif v. Station House Officer, Police Station City ' Hafizabad PLD 1997 Lah. 692; M. Abdul Latif v. G.M. Piracha and others 1981 SCMR 1 i-01; Mirza Muhammad Iqbal and others v. Government of the Punjab PLD 1999 Lah. 109; Interpretation of Statutes by Bindra, 7th Edn., p.828; Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423; Messrs Neelam Textile Mills Ltd. v. State Bank of Pakistan and 2 others PLD 1999 Kar. 433; Mst. Fatima Bai Suleman and others v.' Pakistan State Oil Company Ltd. Dawood Centre, M.T. Road, Karachi 1997 MLD 2155; Messrs Pak Army Furnishing Stores v. Syed Ali Akbar Rizvi and others PLD 1985 Kar. 201; Khan Ajun Khan v. The Government of West Pakistan and others PLD 1958 (W.P.) Pesh. 191; Fazal Elahi Ejaz and others v. Government of the Punjab and others PLD 1977 Lah. 549; Interpretation of Statutes by Maxwell, 12th Edn., p.25; Interpretation of Statutes by Bindra 7th Edn. p.704; Gokul Madan v. Pudmanund Singh ILR 29 Cal. 707; Legislation Methods and Forms by Illbert, p.128; Statutory Construction by Crawford, p.187 and Statutory Interpretation by Bennion, p.319 ref.

Abid Saqi for Appellants.

M. Hanif Khatana, Add]. A.-G. for Respondents.

ORDER

RIAZ KAYANI, J.--- Shafqat Hussain son of Muhammad Khan and Zulfiqar Ali son of Muhammad Yusuf have through this Intro-Court Appeal assailed the finding of the learned Judge in Chambers, dated 17-8-1999 who dismissed Writ Petition No. 15161 of 1999 filed by the appellants for quashing F.I.R. No.2 registered on 24-5-1999 under section 1.61, P.P.C. read with section 5(2) of the Prevention of Corruption Act, it947 with Anti-Corruption Establishment, Circle Hafizabad.

Munir Ahmad complainant lodged, complaint with Anti-Corruption Establishment, Hafizabad that he runs a dry-cleaner shop and Zulfiqar Ali Police Constable alongwith Shafqat Hussain, Head Constable, C.I.A. get their clothes dry-clean from his shop. towards which they owe a sum of Rs.1,500 but failed to pay the dues and instead threatened him that he was a proclaimed offender in a case registered with Police Station Saddar, Chiniot and took him in custody for being identified in an identification parade. Muharrir, Police Station Saddar Chiniot refused to take the complainant in custody on the ground that he was not a proclaimed offender and as such was brought back to Pindi Bhattian. On the next day again Shafqat Hussain and Zulfiqar Ali came to his shop and demanded Rs.1,000 by way of illegal gratification, out of fear he handed over. Rs.300 to Zulfiqar Ali and another Rs.300 to Shafqat Hussain in presence of the witnesses and promised to pay Rs.400 later on. On 24-5-1999 both Zulfiqar Ali and Shafqat Hussain again demanded the balance of Rs.400 which demand he temporarily put off on some pretext and got the complaint registered with the Anti-Corruption Establishment.
The main grounds canvassed before the learned single Judge in Chambers by the appellants were that Rule 6 of the Punjab Anti-,Corruption Establishment Rules, 1985 envisages holding of a preliminary inquiry prior to the registration of case, being a mandate of law and since 4o such inquiry was conducted Rule 6 (ibid) stood violated, secondly the point made out was that Rule 8(2) (ibid) envisages prior permission from the Deputy Director for the registration of case, which was not obtained, therefore, the lodging of the complaint was a serious infraction of law rendering all subsequent proceedings nugatory, requiring intervention by Court in its Constitutional jurisdiction.
Learned Judge after full dress arguments came to the conclusion that the rules essentially regulate internal working of the establishment and in no manner abrogates or abridge the provisions of section 154, of the Code of Criminal Procedure under which the criminal cases are registered, therefore, concluded that grounds taken were inadequate to attract the attention of the Court for further probe and resultantly dismissed the same, which order has been impugned in this appeal.
Learned counsel before us repeated his arguments which, he addressed before the learned single Judge in Chambers by stating that registration .of F.I.R. No.2, dated 24-5-1999 by the Anti-Corruption Establishment, Hafizabad was in gross violation of Rules 6, 7 and 8 of the Punjab Anti-Corruption Establishment Rules; 1985 (hereinafter called the Rules) and, therefore, any further proceedings under the referred to F.I.R. would be a nullity in the eyes of law requiring immediate attention of the Court to quash the said F. I. R. In support of his argument learned counsel relied on the case of Muhammad Sharif v. Station House Officer, Police Station City, Hafizabad reported in PLD 1997 Lah. 692. In this case a ,learned Judge of this Court relying upon the principle that when a law prescribes a particular manner and procedure in which things are required to be done, the same must be done in that way or not at all. Applying this principle to Rules 3 to 17 of the Rules it was held that the texture about initiation of the Anti-Corruption cases stands altered with the introduction of the Rules with respect to the scheduled offences requiring preliminary inquiries, prior permission from authorities about registration and arrest, submission of challan and holding of trial and since the provision of the Rules was a creation of special law it by necessary implication had an overriding effect upon the general law. When the attention of the learned counsel was drawn to the case of M. Abdul Latif v. G.M. Piracha and others 1981 SCMR 1101 followed by this Court in the case of Mirza Muhammad Iqbal and others v. Government of Punjab PLD 1999 Lah. 109 he sought time to study the aforesaid cases. On the adjourned date of hearing learned. counsel for the appellants felt content by stating that the rule laid down by. the apex Court in Latif's case cannot be applied to the facts which emerge in his case for the reason that at the time when the case of Abdul Latif was decided the present rules were not in field, therefore, on this ground G.M. Piracha's case stood distinguished. As far as the case of Mirza Muhammad Iqbal and others v. Government of Punjab PLD 1999 Lah. 109 was concerned it was submitted that it followed the rule postulated in Muhammad Abdul Latif v. G.M. Piracha and others 1981 SCMR 1101, therefore, parameteria subsequent ruling of this Court did not exegetically examine the impact of the rules which have now been brought to the notice of this Division Bench in the under consideration appeal.
We called upon the Additional Advocate-General to assist us as to the interpretation of the West Pakistan Anti-Corruption Establishment Ordinance, 1961 (hereinafter called the Ordinance) and the Rules framed thereunder came. under close scrutiny being a question of public importance affecting large number of cases. The Law Officer opposed the arguments.
We had no other alternative but to apply ourselves to the research in the limited time which we have.
Section 6 of the Ordinance empowers the Government to make rules to carry out the purpose of the Ordinance. Section 8 which is important in its application to the facts of the case is reproduced for facility of reference:--

"The provisions of this Ordinance are in addition to and not in' derogation of any other law for the time being in force."

This provision of law was taken into consideration by the apex Court in M. Abdul Latif v. G.M. Piracha 1981 SCMR 1101. The point canvassed in the said case was that the complaint against a public servant was registered with the police station and was investigated by Sub-Inspector and Assistant Sub-Inspector which was contrary to the provisions of section 3 of-the Ordinance which provided establishment of Anti-Corruption Establishments for the investigation and holding of preliminary inquiry for determining whether such offence shall be investigated or departmental inquiry into the conduct of any public servant concerned in such offences shall be held. It was further submitted that such establishment, in fact, had been created and being a special law, only members of the establishment could investigate offences of corruption. The argument was repelled by making reference to section 8 of the Ordinance reproduced above and the petition was dismissed.

In the case of Mirza Muhammad Iqbal v. Government of Punjab PLD 1999 Lah. 109 the learned single Judge of this Court while discussing the law noted per-in-curium (due to inadvertence) subsequent cases on the subject did not take into consideration the rule elaborated by the apex Court in M. -Abdul Latif's case.
The point now made out by the learned counsel for the appellant is that at the time when Abdul Latif's case saw the light of the day the rules were not framed, therefore, distinguishing the judgment from this angle it was submitted that the same would not apply because in totality the impact of the Rules of 1985 could not have been considered as they were not in field. Learned counsel loses sight of the fact that the judgment reported as Mirza Muhammad Iqbal v. Government of Punjab PLD 1999 Lah. 109 Rules of 1985 were not only taken into consideration but- a detailed and careful-examination was undertaken and it was observed that rule making power having been delegated to the executive, it could in no manner be deemed to be a non-obstante clause to travel beyond the purpose and object envisaged by its parent statute. As regards the prior permission to be obtained, for registration of case and arrest of a public servant accused of scheduled offences, from categorised officers named therein, although no detailed finding was given, as the point was not canvassed, yet by no means, the observation that such sweeping transient immunity could very well-offend Article 25 of the Constitution, was certainly not be considered as obiter dicta.
Dealing with the submissions made by the learned counsel in detail it is necessary to reproduce the provisions of the Ordinance and thereafter to examine whether the rules are in consonance or in derogation of the said provisions. Section 3 of the Ordinance underlines the constitution and powers of the Anti-Corruption Establishment and is reproduced below:--
Constitution and powers of Anti-Corruption Establishment.--- (1)

Notwithstanding anything contained in any other law for the time being in force, Government may constitute. an establishment to be known as Anti-Corruption Establishment for the investigation of offences set forth in the Schedule, and for holding preliminary inquiries for determining whether such offence shall be investigated or departmental inquiries into the conduct of any public servant concerned in such offences shall be held.

Section. 6 empowers the Government to make rules to carry out the purposes of this Ordinance and subsection (2) is relevant which. is reproduced:--

(1)

The commulative effect of reading the provisions of section 3 and subsection (2) of section 6 by keeping them in juxtaposition is:--

(a) Constitution of an Establishment to be known as Anti-Corruption Establishment.

(b) For the offences set forth in the Schedule;

(c) For holding preliminary inquiries for determining whether such offence shall be investigated or departmental inquiries into the conduct of any public servant concerned in such offences shall be held;

(d) Making Rules that' may provide for the organization of the Establishment.

(e) Naming the designated authorities with whose permission investigation of any case or class of cases may be commenced or any person may be arrested. .

Dilating upon the rules to examine whether they are in consonance with the provisions of the Ordinance, Rules 6, 7 and 8 which are under scrutiny is reproduced:--
Preliminary enquiries and investigations against public servants.--Preliminary enquiries and investigations shall be initiated by the Establishment against public servants on complaints received from the Government. Heads of Departments or other reliable sources.
Initiation of preliminary enquiries against public servants.--- A Deputy Director or an officer of or above his rank shall initiate preliminary enquiries in order to ascertain the identity of the complainant or informer and genuineness of the complaint/information:

Provided further that, for those officers mentioned in the first proviso who are in BPS-19, such permission shall be accorded by the Chief Secretary.

Registration of cases.---(1) Criminal cases shall be registered by the Establishment under Prevention of Corruption Act, 1947 and under such sections of the Pakistan Penal Code, as have been set forth in the Schedule to the Ordinance.

(2) Criminal cases shall be registered against accused public servants under the written orders of officers of Establishment mentioned below:---

(a) Public servants in BPS 1 to 16. Not below a Deputy

Director.

(b) Public servants in BPS 17 Not below an Additional

and 18. Director.

above.

Provided that no case shall be registered by the Director against public servants of the Status of Commissioner, Secretary to Provincial Government, Heads of Attached Departments and, other officers in BPS-20 and above without the prior permission of the Governor:

Provided further that for those public servants mentioned in the first proviso who are in BPS-19, such permission shall be accorded by the Chief Secretary:

(3) If the competent Authority under sub-rule (2) decides not to register a case, he shall record reasons therefore.

As the very outset prior permission for registration of case against public servants under the written orders of the officers of Establishment mentioned in sub-role (2) of Rule 8 is neither provided in the scheme of section 3 or permissible under the rule-making power of the Government bestowed upon them under section 6 (ibid).
It has to be kept in mind that rule-making power is delegated to the Executive unless expressly provided. The authority to make rules anti j _12ulations in order to carry out an express legislative purpose or to effect the operation and enforcement of law is not a power exclusively legislative in character but is rather administrative in its nature. A rule or-bye-law made under a statute cannot unless there are express indications under the statutes itself, override the provisions of other statutes or the General law_, nor can a rule militate against the provisions of an Act under which it has been framed and must be treated for all purposes of construction or obligation exactly as if they were in the Act and or to be of the same effect as if contained in the Act and are to be generally, noticed for all purposes of construction and obligation.
Bindra's Interpretation of Statute, at p.828 of 7th Edition underlines the tests to apply in considering whether the rules are within the powers of the rule-making authority under a statute in the following manner;--

(i) Whether the rules are reasonable and convenient for carrying the Act into full effect.

(ii) Whether the rules relate to matters arising under the provisions of the Act;

(iii) Whether they related to matters not in the Act otherwise provided for, and

(iv) Whether they are consistent with the provisions of the Act..

In the case of Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 42,3, it was held that the Rules and Regulations are subordinate and delegated legislation deriving authority and legal cover from the provisions of the Ordinance.
In the case of Messrs Neelam Textile Mills Ltd. v. State Bank of Pakistan and 2 others PLD 1999 Kar. 433, it was held that the rule could not be read in isolation divorced from the parent statute or the scheme proposed therein.
Similarly Mst. Fatima Bai Suleman and others v. Pakistan State Oil Company Ltd., Dawood Centre, M.T. Road, Karachi 1997 MLD 2155, expounded that the rules framed under a statute cannot go beyond and overreach the statute itself.
In the case of Messrs Pak Army Furnishing Stores v. Syed Ali Aicbar Rizvi and others PLD 1985 Kar. 201, wherein the proposition postulated was that the rules and regulations being creation of a statute, is to be framed within the limits and conditions prescribed by parent statute. Any rule repugnant to parent statute will be void and illegal.
The citation submitted by the learned counsel for the appellants namely Khan Ajun Khan v: The Government of West Pakistan and others PLD 1958 (W.P.) Pesh. 191, that rules framed under an enactment have same force as provisions of enactment does not present any cavil and expound a sound principle of interpretation of statute.
Similarly a Division Bench judgment of this Court Fazal Elahi Ejaz etc. v. Government of the Punjab etc. PLD 1977 Lah. 549 that executive orders or instructions issued by the appropriate Government expressed with precision and possessing generality so as to be capable of application to a large number of persons can be regarded as being in nature of statutory rules is to say the least not at all apt or applicable to the facts of the present case, and it does not promote the case of the appellants in any manner whatsoever.
The proposition before us in this appeal is whether seeking prior permission to get a case registered against a public servant for committing a scheduled offence from the authorities named in sub-rule (2) of Rule 8 is within the scope of the Ordinance or is oblique and tangentially placed to the provisions of the Ordinance. Having reproduced the relevant provisions of the Ordinance and Rule 8(2) of the Rules for comparison our conclusion is that seeking permission of the authorities before registration of the case against public servants is beyond the scope of section 3 of rule-making powers given to the Government under section 6 as neither of the two quoted provisions authorises the executive to frame rules seeking prior permission for the registration of cases.
The next question for determination is whether the right conferred under Rules 6 and 7 upon the public servants indicted for scheduled offences, to get in the first instance, determination through preliminary inquiries is in accord with the provisions of section 154, Code of Criminal Procedure or not.
It is well-known that information relating to the commission of a cognizable offence is to be given to an officer incharge of the police station, who after getting a case registered proceeds to investigate and if he collects prima facie evidence connecting the accused with the commission of the offences takes him in custody and after completion of the investigation, challan is submitted in Court whereafter trial commences.
Section 154, Cr.P.C. is part of codified law. It, therefore, becomes essential to determine the statutory nomenclature of such law. Maxwell on "The interpretation of Statutes" 12th Edition, page 25 states that a codifying particular subject. Lord Davey observed in Gokul Madan v. Pudanund Singh ILR 29 Cal. 707 that in the essence of a Code is to be exhaustive on the .matters in respect of which it declares the law, and it is not the province of a Judge to-disregard or go outside the letter of the enactment according to its true construction- Illbert, Legislation Methods and Forms at page 128, states "Codification" is sometimes employed loosely, so as to include consolidation of statutes. But in its stricter and narrower sense it means an orderly and authoritative statement of the leading rules of law on a given subject whether those rules are to be found in a statute law or in a common law. A code is a text book enacted by the Legislature. Crawford's "Statutory Construction" at page 187 has commented that the enactment or adoption of a code or revision by the Legislature has the same effect as if all the matters, both new and altered, therein contained, had been enacted as one general statute or Act. In other words, the provision of a code enacted as a statute have the force of. statute law. Bennion in his "Statutory Interpretation" at page 319, is also of the same view according to him a Codifying statute is to be construed in the same way as any other Act.
Having discussed in detail that codified law is just like an act of the Legislature, we now proceed to examine whether Rules 6 and 7 of the Rules are in consonance with the provisions of section 154, Cr.P.C. or create dents in the said provision of law and if so to what extent the same is justified. While arguing the appeal learned counsel has not in so many words Ziaed that special law has overriding effect over the general law brut this is a proposition well-known to legal parlance, which we concede. Section 8 of the Ordinance which has been reproduced earlier specifically demonstrates that the provisions of the Ordinance are in addition to and not in derogation of any other law for the time being in force. The cumulative effect of the discussion is that cases are registered under section 154. Code of Criminal Procedure wherein after detailed investigation the guilt or innocence is ' determined and this law which has stood rigours of time, for more than a century cannot be allowed to become subservient to be governed by subordinate Legislature contained in the rules as section 8 of the Ordinance itself provides that the provisions are in addition to and not in derogation to any other law. We would not like to touch the powers of the establishment to determine whether a case of a public servant is fit to be sent for trial or departmental inquiry would meet the ends of justice, because this aspect pertains to their internal management and no adjudication is called for. However, the appellants cannot claim by way of right that contrary to the provisions of section 154, Cr.P.C. Rules 6 and 7 conferred upon them a right to be subjected to a preliminary first and thereafter permission to register a case be obtained.
We now take up the oft-repeated and much trumpeted argument that the case of M. Abdul Latif v. G.M. Piracha and others 1981 SCMR 1001 was decided when Rules of 1985 were not in field, and therefore, the dictum of the Supreme Court is distinguishable due to which its effect has mellowed. Admittedly the rules were framed in the year 1985, but their absence, when the dictum referred to above was pronounced would hardly make any difference. We have endeavoured to demonstrate that rules are subservient to the statute and if that is accepted position then section 8,,Of the Ordinance that the provisions of the Ordinance are in addition to and not in derogation of any other law for the time being in force, clinches the issue once for all. The argument on the face of it is illusory and devoid of force. Under Article 189 of the Constitution decision of the Supreme Court to the extent that it decides a question of law is binding on all Courts in Pakistan.
Upshot of the discussion is that the Intra-Court Appeal is without merit and the same is dismissed, upholding the decision of the learned single Judge in Chambers, dated. 1778-1999.

N.H.Q./S-72/L Appeal dismissed.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 2033 #

2000 P Cr. L J 2033

[Lahore]

Before Muhammad Nawaz Abbasi, J

AMIR ZAMAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 176 of 1993, heard on 24th April, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Prosecution witness who was wife of accused who had killed her father had corroborated statement of first informant on each material point‑‑‑No motive was found behind the occurrence except that accused fell annoyed with his wife on her departure with his father and brother‑‑‑Case was neither sudden or grave provocation ;as occurrence had no background of any other incident of either nature which `could be the source of even a slight provocation. to bring it within scope of S.302(c), P.P.C. for purpose of punishment‑‑‑Despite the fact that there was no motive of occurrence, accused was not justified to cause death of his father‑in‑law who was taking his daughter who was wife of accused to his ,.house on account of ill‑treatment by accused to his wife‑‑‑Accuse‑d instead of repenting himself and giving respect to his father‑in‑law for his ill‑behaviour towards his wife decided to take severe action against his father‑in‑law‑‑a Element of grave and sudden provocation could not be pleaded by accused as ,ho extraordinary circumstances were created either by his wife or his father-in‑law rather accused, out of frustration of his behaviour with his wife, became revengeful against her father due to his intervention‑‑‑Mere fact that wife of accused without his permission proceeded to house of her parents with her father and brother, would not be a circumstance to plead provocation as a justification to cause death of innocent person‑‑Accused, in circumstances, was rightly convicted and sentenced by Trial Court.

Abdul Zaheer v. State 2000 SCMR 406 ref.

Sh. Waqar Azeem Siddiqui for Appellant.

Mubeen Ahmad for the State.

Date of hearing: 24th April, 2000.

JUDGMENT

The appellant namely, Amir Zaman has filed this Criminal Appeal No.476 of 1993 against his conviction and sentence of life imprisonment awarded to him under section 302(b), P.P.C. by the learned Sessions Judge, Attock, through judgment, dated 20‑7‑1993, in a case registered against him through F.I.R. No.323, dated 29‑12‑1992 at Police Station Hazro, District Attock.

The first informant, namely, Ali Akber, who originally belonged to District Mardan, was residing with his family member in Hazro and married her daughter Mst. Zatoon (P.W.10) with the appellant, 1‑1/2 years prior to the occurrence. The first informant on receipt of message about the maltreatment of the appellant with his wife Mst. Zatoon alongwith Kachkol Khan his father went to the house of appellant to take Mst. Zetoon to the house of her parents and when they alongwith Mst. Zetoon were on their way to Hazro, the appellant armed with hatchet alongwith Umar Zada, empty‑handed, confronted them and forced Mst. Zetoon Bibi to go with him and when Kachkol Khan intervened, the appellant inflicted successively hatchet blows to him which landed on his head and neck. On the alarm of Mst. Zetoon Bibi, the appellant and his companion run away from the spot and Kachkol Khan died at the spot.
Dr. Muhammad Irshad (P.W.1) performed post‑mortem examination on the dead body of Kachkol Khan on 19‑2‑1992 at about 1‑00 p.m. and found the following injuries on his person:‑‑

(1) An incised wound extending from other and upper end of left cheek to the highest portion of left ear 6 c.m. from the root of ear, measuring 10 c.m. x 3 c.m. bone deep oval in shape.

(2) An incised wound in the neck extending from the upper 1/3rd of sternomastoid muscle to the other side of sternomastoid muscle (upper 1/3rd). Cutting all the soft tissues i.e. skin, pharynx larynx, cartid vessels, juguler vessels up to the vertebrae above promem adam (thyroid cartilage) measuring 13 c.m. x 6 c.m. oval in the shape.

In the opinion of the doctor, the death was the result of the injuries which were caused by sharp‑edged weapon, and being ante‑mortem were sufficient to cause death in the ordinary course of nature.

Raja Abdul Razzaq, S.H.O. of Police Station Hazro who was examined as P.W.8 at the trial on the basis of statement made by Ali Akbar, P.W. registered case through F.I.R. Exh.P.E. The first informant was Pashto‑speaking. Therefore, his statement was recorded with the help of Zerdar P.W. who was well‑conversant with Pastho language. The S.H.O. while reaching at the spot, prepared injury statement Exh.P.F. and inquest report Exh.P.G. of the deceased and despatched the dead body for postmortem. After post‑mortem examination of deceased he took into possession the blood‑stained last‑worn clothes of the deceased. He also took into possession a bundle of lady suits P.10 to P.21 through memo. Exh.P.1. The S.H.O. arrested the accused/appellant on 1‑1‑1993 who on the same day led to the recovery of blood‑stained hatchet P. l which was taken into possession through a sealed parcel Exh.P.C. He got prepared site plans Exh.P.B. and Exh.P.B./1 from the Halqa Patwari.
Ali Akbar, P.W.9, real brother of Mst. Zetoon and son of Kachkol Khan (deceased), stated that the marriage of Mst. Zetoon with appellant had taken place 1‑1/2 years prior to the occurrence and that‑About 6 months ago, their relations became strained as a result of which the appellant used to maltreat Mst. Zetoon. He stated that on receipt of information about merciless beating given to Mst. Zetoon by the appellant, he alongwith his deceased father went to the house of the appellant who voluntarily allowed Mst. Zetoon to go with them and when they alongwith Mst. Zetoon were at some distance from village Pirdad at about 10‑00 a. m. the appellant armed with hatchet in the company of Umarzada who was empty‑handed confronted them and snatched bundle of cloth being carried by Mst. Zetoon and on the intervention of Kachkol Khan (deceased) the appellant gave him two successive blows with hatchet which landed on his head and neck as a result of which Kachkol Khan (deceased) lost his breath. The witness made statement in Pashto language which was translated by Zedar in Urdu. Mst. Zetoon while making similar statement, has corroborated the statement of the first informant on each material point. There was no motive behind the occurrence except that the appellant felt annoyed with his wife on her departure with her father and brother. The learned trial Court after evaluation of the evidence of eye‑witnesses had found the appellant guilty of the charge and upon conviction awarded him lesser sentence of life imprisonment for the consideration that the appellant being a young man could not tolerate the act of taking his wife by her father and brother with them without his consent. The appellant was also allowed the benefit of section 382‑B, Cr.P.C.
Learned counsel for the appellant, without questioning the conviction on merits, contended that in the light of the fact that there was no motive behind the occurrence and the appellant being within his right to restrain his wife from leaving the house without his permission while loosing self‑control, caused injuries to the deceased on his intervention when the appellant made an attempt to take his wife back to his house and, thus, the offence allegedly committed by the appellant would fall within the ambit of section 302(c), P.P.C. for the purpose of sentence. The learned counsel representing the State conversely argued that in the light of plea taken by the accused on the resistance of Mst. Zetoon, to the demand of accused the intervention of her father being natural there was no justification for the appellant to cause injuries to him and thus the case squarely falls within the ambit of section 302(b), P.P.C. The occurrence happened due to family dispute with no background of enmity or any other motive. The deceased alongwith his daughter Mst. Zetoon and son Ali Akbar were proceeding towards his house when the appellant, husband of Mst. Zetoon, attacked them. According to the prosecution story, due to mis behaviour of appellant with Mst. Zetoon, she was being taken by her father and brother to their house and the appellant while loosing patience could not tolerate the departure of his wife Mst. Zetoon from his house with her father and brother and made an attempt to take her back but on the intervention of the deceased caused him injury. The appellant did not plead any special plea to bring the case within the ambit of section 302(c), P.P.C. It was not a case of either sudden or grave provocation as the occurrence has no background of any other incident of either nature which could be the source of even a slight provocation to bring it within the scope of section 302(c), P.P.C. for the E purpose of punishment. The Apex Court in Abdul Zaheer v. State 2000 SCMR 406 while reviewing the whole case‑law on the subject observed as under:‑‑

"That by enlarge all cases of sudden and provocation would not ipso facto fall within the ambit of section 302, P.P.C. particularly those of Qatl‑e‑Amd of wife, sister, or brother very close female relative at the hands of male on the allegation of Siyah Kari."

In the instant case despite the fact that there was no motive still there was no justification for the appellant to cause death of his father‑in‑law who was taking his daughter to his house on account of ill‑treatment of the appellant with his wife. The appellant instead of repenting himself and giving respect to father and brother of his wife for his ill‑behaviour towards his wife decided to take severe action against his father‑in‑law. There can be no denial to the fact that quarrel of the appellant with his in‑laws was due to uncontrolled emotion with no background of enmity. Therefore, the element of grave and sudden provocation cannot be pleaded in the present case as no extraordinary circumstance was created either by Mst. Zetoon and her father and brother rather the appellant out of frustration of his behaviour with his wife became revengeful against her father due to his intervention, thus, there was neither grave nor sudden provocation as pleaded by the appellant. The mere fact that wife of appellant without his permission proceeded to the house of her parents with her father and brother would not be a circumstance to plead provocation as a justification to cause death of innocent person. It is common in our society that the parents in such circumstances take their daughters to their houses and it is not considered a provocation for the husband who can in a reasonable manner place his wife and female members of the family for their dignity and honour under some restrictions but has no right to place restriction on their free movement in their homes and to see their parents or accompany to them to their house, therefore, act of the appellant cannot be covered by grave and sudden provocation for the purpose of punishment under section 302(c) of P.P.C. For the foregoing reasons I do not find any substance in this appeal which stands dismissed while maintaining conviction and sentence awarded to the appellant by the trial Court.

H.B.T./A‑76/L Appeal dismissed

PCRLJ 2000 LAHORE HIGH COURT LAHORE 2043 #

2000 P Cr. L J 2043

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

MUHAMMAD NAEEM---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos.712 and 790 and Murder Reference No.296/T of 1999, heard on 13th April, 2000.

Penal Code (XLV of 1860)--

----S. 302/34---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10(4) & 16---Appreciation of evidence---Three 'prosecution witnesses produced by prosecution were closely related inter se---Accused were not named in F.I.R. and two persons named in F.I.R. had already been killed in a police encounter---No identification parade was held and material contradictions and improvements were found in statements of eyewitnesses---No direct evidence either of Zina-bil-Jabr or murder of deceased was found against accused and on basis of such a weak type of evidence, innocent persons could not be hanged---Case being of no evidence, conviction and sentences awarded to accused were set aside and they were ordered to be released.

Khawaja Haris Ahmad for Appellant.

Ijaz Ahmad Bajwa for the State.

Date of hearing: 13th April, 2000.

JUDGMENT

KHAWAJA MUHAMMAD SHARIF, J.--- This judgment will dispose of Criminal Appeal No.712 of 1999 filed by Muhammad Naeem alias Billa and Criminal Appeal No.790 of 1999 filed by Muhammad Sharif alias Kaka, appellants who were convicted by Judge Special Court No. 1, Lahore on 9-7-1999 for committing Zina-bil-Jabr and thereafter, murdering Mst. Rashidan and sentenced as under:--

| | | | --- | --- | | Muhammad Sharif alias Kaka Muhammad Naeem alias Billa | Death under section 302(b)/34, P.P.C. with compensation of Rs.1,00,000 to be paid to legal heirs of deceased and in default 2 years' R.I.; Death under section 10(4) of Ordinance VII of 1979; 7 years' R.I. and fine of Rs.25,000 and in default 6 months' R.I. under section 16 of Ordinance VII of 1979. Death under section 302(b)/34, P.P.C. and compensation of Rs.1,00,000 and in default 2 years' R. I. Under section 10(4) of Ordinance VII of 1979 death and 7 years' R.I. with a fine of Rs.25,000 end in default six months' R.I. under section 16 of Ordinance VII of 1979. |

Occurrence in this case had taken place at 9 p.m. on 1-10-1997 in the area of Kot Khawaja Saeed which is at a distance of one and a halt kilometre from Police Station Gujarpura, Lahore while the matter was reported to police by Ghulam Rabbani, complainant, at 2-30 p.m. (noon) on 2-10-1997 and the formal F.I.R. Exh.P.A. was recorded by Nazir Ahmad, Sub-Inspector (P.W.10) on the same day.
Brief facts of the case are that Mst. Rashidan wife of the complainant, namely, Ghulam Rubbani (P.W.1) used to teach Qur'an-e-Pak to the children of Mohallah. She at 9 p.m. on 1-10-1997 went to Bazar to purchase a tablet for headache but did not return for long time. Complainant thought that she might have gone to the house of Zahoor Ahmad on the eve of marriage of his daughter. He alongwith his children went to sleep when at 12-30 mid-night, on hearing the noise of weeping, complainant asked the reason for weeping from his wife Rashidan Bibi upon which she told that when she after purchasing the tablet was coming from the Bazar, she fell down as a result of fist blow on her head. Then four persons, out of whom one was Labha the second was Sain and the remaining two unknown persons took her to room of a Mai (old woman) where all the four committed Zinabil-Jabr with her and after sufficient long night, all the accused left me in the street. The complainant when went to tell the incident to his relations at Kot Lakhpat, he received information that Mst. Rashidan Bibi had died due to Zina-bil-Jabr.
After registration of the F.I.R. Exh.P.A., Nazir Ahmad, S.-I. (P.W.10) went to the place of occurrence; prepared the inquest report Exh.P.J. he also prepared rough sketch plan of the place of occurrence Exh.P.L. The Investigating Officer arrested Sharif and Rashid accused on 3-10-1997. Ashraf alias Labha, accused was also arrested and thereafter, efforts were made to arrest accused Naeem alias Billa who was arrested on 4-10-1997. Rashid alias Sain and Ashraf alias Labha were killed in a police encounter. Muhammad Naeem accused while in police custody led to the recovery of video cassette which was taken into possession vide memo. Exh.P.G. After completion of the investigation, both the appellants were challaned to face the trial.
Prosecution in order to prove its case produced 15 witnesses in all. Thereafter, the learned Public Prosecutor tendered in evidence report of the Chemical Examiner Exh.P.Q. and closed the prosecution case. Then statements of the appellants were recorded under section 342, Cr.P.C. in which they pleaded innocence. After conclusion of the trial, both the appellants were convicted and sentenced as stated above.
Learned counsel for both the appellants after having read the prosecution evidence and statements of the appellants recorded under section 342, Cr.P.C., submit that both the appellants are not named in the F.I.R.; no identification parade was held and that there is no eye-witness of commission of Zina-bil-Jabr with Mst. Rashidan or killing her. According to the learned counsel, in fact, it was an un-witnessed occurrence. Adds that video cassette is inadmissible in evidence.
On the other hand, learned counsel for the State submits that act of the appellants was very brutal one and that Mst. Rashidan being a Hafiza of Qur'an-e-Pak was firstly subjected to Zina-bil jabr and then killed.
We have heard learned counsel for the parties at length and have gone through the evidence recorded by the trial Court. In the instant appeal, three witnesses produced by the prosecution are closely related inter se inasmuch as Ghulam Rubbani (P.W.1) is husband of the deceased, Ghulam Murtaza (P.W.2) is brother of Ghulam Rubbani and Muhammad Hassan (P.W.3) is cousin of the deceased. Appellants were not named in the F.I.R. Two persons named in the F.I.R. have already been killed in a police encounter. No identification parade was held in this case. There are material contradictions and improvements in the statements of the eye-witnesses. There is no direct evidence either of Zina-bil-Jabr or murder of Mst. Rashidan against the appellants. On the basis of such a weak type of evidence, innocent persons cannot be hanged. After going through the entire prosecution evidence and the other material brought on record, we are of the considered opinion that it was a case of no evidence and when it is held that it was a case of no evidence, then we are left with no option but to accept the appeal, acquit the appellants from the charge and set aside the conviction and sentence recorded by the trial Court against them. Both the appellants are in jail. They shall be released forthwith, if not required to be detained in any other case. Murder Reference is answered in the negative.

Death sentence is not confirmed.

H.B.T./M-202/L ' Appeal accepted.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 2057 #

2000 P Cr. L J 2057

[Lahore]

Before Khawaja Muhammad Sharif, J

ALAM KHAN and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 139 of 1997, heard on 31st August, 1999.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(c)‑‑‑Appreciation of evidence‑‑‑Eye‑witness had improved his statement at the trial stage to bring the same in line with the post‑mortem report‑‑‑Ocular account of occurrence was in conflict with the medical evidence‑‑‑Accused was acquitted on benefit of doubt in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Both the parties, while armed with fire‑arms, in order to show their strength, had attacked each other and the case was one of free fight‑‑‑Accused had caused the fatal fire‑arm injury on the back of the deceased with his rifle‑‑‑Eye‑witnesses had implicated the accused charging him for the murder of the deceased‑‑‑Trial Court had already treated the accused leniently in the matter of sentence‑‑‑Conviction and sentence of accused were upheld in circumstances.

Muhammad Asghar Khan Rokhri for Appellants.

S.D. Qureshi for the State..

Muhammad Yaqoob Chatha for the Complainant.

Date of hearing: 31st August, 1999.

JUDGMENT

This judgment will dispose of Criminal Appeal No.139 of 1997 filed by Alam Khan and Muhammad Akram Khan who were convicted and sentenced on 15‑3‑1997 by the learned Additional Sessions Judge, Sargodha for the murder of Ahmad Nawaz and Muhammad Ramzan. Muhammad Akram Khan appellant was awarded life imprisonment under section 302‑B, P.P.C. for causing the death of Muhammad Ramzan with a fine of Rs. one lac and in default to undergo 4 years' R.I. and in case of realization of fine, it was ordered to be paid to the legal heirs of the deceased. Benefit of section 382‑B, Cr.P.C. was also granted. Alam Khan appellant was convicted under section 302(c), P.P.C. and sentenced to 10 years' R.I. with a fine of Rs.50,000 as compensation as required under section 544‑A, Cr.P.C. to be paid to the legal heirs of the deceased Ahmad Nawaz. Ghulam Rasool, complainant, has also filed Criminal Appeal No.203 of 1997 against" the acquittal of Baz Gul, Muzaffar Khan, Muhammad Saeed and Barohi Khan. There is also a Criminal Revision No.120 of 1997 filed by Ghulam Rasool for enhancement of sentences awarded to Muhammad Akram Khan and Alam Khan, appellants in Criminal Appeal No. 139 of 1997.

Briefly stated facts of the prosecution case were that Ghulam Rasool, complainant, resident of Chak No.65/NB got recorded F.I.R. Exh.P.F. at 4‑45 p.m. in Police Station Jhal Chakkian, District Sacgodha about an occurrence which took place on the same day at.3‑23 p.m. stating therein that on the same day at 3‑23 p.m., he alongwith his brother Muhammad Ramzan got canal water from Nukka situated in Square No. 17, Killa No.21, Muhammad Ramzan was standing near the Nukka while Ghulam Rasool, complainant was going to have a round at the Khaal Nasrullah (not produced) son of Muzaffar Khan came there and informed the complainant that his father Muzaffar Khan had asked his co‑accused Tawakli Khan, Alam Khan, Barohi Khan, Muhammad Akram and Muhammad Saeed that the sons of Manzoor Khan should not be allowed to get the canal water and if they resist, they should be murdered, Ahmad Nawaz, deceased, had also come near the complainant when Nasrullah injured (not produced) was passing on the information to Ghulam Rasool, complainant, in the meanwhile Muhammad Akram Khan, accused armed with rifle and Alam Khan, accused armed with rifle came from the southern side, Tawakli Khan accused (since dead) and Barohi Khan, accused armed with .12 bore guns came there from' the opposite side, Barohi Khan, accused raised Lalkara to the effect that they had come to teach them lesson for causing firing at him and for getting the turn of water allocated in their names, thereafter Muhammad Akram Khan accused fired with his rifle which hit Muhammad Ramzan at the back side of his chest and he fell down, then Alam Khat accused fired which hit Ahmad Nawaz deceased at his back and he fell down, Barohi Khan accused fired which hit Nasrullah at his left buttock and he also fell down, the accused persons thereafter started indiscriminate firing from both the sides, Tawakli Khan also received injuries at the hands of the accused persons and that accused persons lifted Tawakli Khan in an injured condition. The accused persons ran away from the spot. Both the injured Muhammad Ranizan and Ahmad Nawaz died there and then. The motive behind the occurrence was dispute over canal water.
After registration of the formal F.I.R., Exh.P.F. lodged by Ghulam Rasool, complainant, (P.W.7) Iftikhar Ahmad, S.‑I./S.H.O. (P.W.9) went to the spot, collected blood‑stained earth from near the dead bodies of Muhammad Ranizan and Ahmad Nawaz which were taken into possession vide memo. Exhs.P.H. and P.J. respectively. It may be mentioned here that no crime‑empty was recovered from the spot. Both the appellants were arrested on 18‑11‑1993. Alam Khan accused got recovered his .7 mm licensed rifle P.6 which was taken into possession vide memo. Exh.P.J. on 1‑12‑1993. Muhammad Akram Khan appellant got recovered .7 mm rifle, P.9 which was taken into possession vide memo. Exh.P.L. on 2‑12‑1993. Three eye‑witness were mentioned in the F.I.R. including the complainant but only two were produced, namely, Ghulam Rasool (complainant) P.W.7 and Gul Sher (P.W.8). Allah Bukhsh another eyewitness was given up as being unnecessary.
It may be mentioned here that Muhammad Ramzan deceased was son‑in‑law of Alam Khan, appellant while Ahmad Nawaz deceased was maternal‑nephew of Alam Khan appellant.
Mr. M. Asghar Khan Rokhari, learned counsel for Muhammad Akram Khan and Alam Khan, accused‑appellants have read before me the prosecution evidence and the statements of the accused. He submits that in fact Killa No. 17, Square No. 2Y was in possession of Alam Khan, appellant where the occurrence took place, therefore, the deceased party was the aggressor, that according to F.I.R. Alam Khan was armed with rifle .7 mm but after post‑mortem examination as pellets were recovered from the dead body, the complainant made a supplementary statement and even improved his statement before the trial Court that Alam Khan was armed with a gun in order to make in line his statement with the post‑mortem report to which he was duly confronted and that the motive also was with the complainant party as the stay order was issued in favour of the appellants on 13‑9‑1993. Also submits that Tawakli deceased was father of Muhammad Akram Khan, accused and real brother of Alam Khan, accused and that Nasrullah an injured witness was never produced and the presumption would be that had he been produced he would not have supported the prosecution case. Learned counsel further submits that recovery of fire‑arms is of no corroborative value as no crime‑empty was recovered from the spot. He also refers to Exh.D.E. (Warabandi), Exh.D.F., the application for getting certified copy of the stay order, dated 13‑9‑1993 and Exh.D.C, counter‑F.I.R. which is cross‑version of the appellants. Learned counsel lastly submits that no case whatsoever is made out against the appellants.
On the other hand, learned counsel for the State assisted by learned counsel for the complainant who has also filed appeal against acquittal of the acquitted accused and a revision for enhancement of the sentences submits that the prosecution has proved its case beyond any shadow of doubt. Further submits that it was the turn of water of the complainant while the appellants armed with fire‑arms committed the murder of both the deceased and that the appellants had committed a broad daylight murder in a very cruel manner, the matter was reported promptly without any deliberations and consultation, the ocular account is corroborated by medical evidence, the parties are very closely related and that there is no question of false implication.
I have heard learned counsel for the parties and have gone through the evidence recorded by the learned trial Court. In the instant case, Alam Khan appellant who is aged 85 years and was father‑in‑law of Muhammad Ramzan deceased was stated to be armed with .7 mm rifle and caused a single injury at the back of Ahmad Nawaz deceased but according to the post‑mortem report, pellets were recovered from his abdomen and were handed over to the police by the doctor who was examined as P.W.6. Moreover, this fact had been admitted by Iftikhar Ahmad, Investigating Officer (P.W.9) Ghulam Rasool, complainant, while appearing as P.W.7 stated that Alam Khan was armed with a gun and was confronted with Exh.P.F. where it was not so recorded. He had improved his statement to make in line with the post‑mortem report. No case whatsoever is made out against Alain Khan appellant as there is clear conflict between the ocular account and the medical evidence. He is given the benefit of doubt and is acquitted of the charge. Alam Khan, appellant shall be released forthwith, if not required to be detained in any other case.
Muhammad Akram Khan, appellant was armed with a rifle. He had. caused fire‑arm injury at the back. of Muhammad Ramzan which proved fatal. Both the eye‑witnesses produced by the prosecution have implicated him. One person from the side of the appellant namely Tawakli Khan who was father of Muhammad Akram Khan also lost his life. It seems to be a case of free fight when both the parties while armed with fire‑arms in order to show their strength attacked on each other. Already a lenient view had ‑been taken by the learned trial Court for the reason that there was no previous enmity between the parties and the fire was not repeated. He is responsible for the death of Muhammad Ramzan. The conviction and sentences of Muhammad Akram Khan, appellant is maintained and his appeal is dismissed, but the benefit of section 382‑B, Cr.P.C. is granted to him.
Criminal Appeal No.203, of 1997 filed against acquittal of the accused persons, namely, Baz Gul, Muzaffar Khan, Muhammad Saeed, and Barohi Khan is dismissed for the reasons recorded above. Out of the acquitted accused, two are accused of abetment while Barohi Khan caused injury to Nasrullah P.W. who was not produced by the prosecution.
Criminal Revision No. 120 of 1997 filed by the complainant for enhancement of sentences of Alam Khan and Muhammad Akram Khan, appellants is also dismissed for the reasons mentioned above. As no fine under section 302, P.P.C. can be imposed, the amount of fine imposed on Alain Khan is converted into compensation as required under section 544‑A, Cr.P.C. which shall be paid to the legal heirs of the deceased and in case of default the appellant will undergo S.I. for six months.

N. H. Q./A‑116/L Order accordingly.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 2064 #

2000 P Cr. L J 2064

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

MUHAMMAD NAWAZ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.86‑J of 1992, heard on 7th June, 1999

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 392‑‑‑Appreciation of evidence‑‑‑Identification of accused was not possible when admittedly they had committed the offence with muffled faces in the dark hours of the night and their identification parade was held after nine months of the occurrence‑‑‑Recoveries allegedly effected from the accused were not free from doubt‑‑‑Accused had already undergone their sentence‑‑‑Benefit of doubt was extended to accused in circumstances and they were acquitted accordingly.

Khan Muhammad Bajwa for Appellant.

Ch. Imtiaz Ahmad for the State.

Date of hearing: 7th June, 1999

JUDGMENT

KHAWAJA MUHAMMAD SHARIF, J.‑‑‑ This judgment will dispose of Criminal Appeal No.86‑J of,1992 filed by Muhammad Nawaz and Muhammad Mansha, who were convicted and sentenced by Special Court No. 11, Suppression of Terrorist Activities, Sargodha Division vide his judgment, dated 21‑7‑1992, to undergo 10 years' R.I. under section 392, P.P.C. each with a fine of Rs.20,000 (twenty thousand) each or in default to undergo one year's R.I. Benefit of section 382‑B, Cr.P.C. was also granted to the appellants.

The occurrence took place between the night of 27‑4‑1991 and 28‑4‑1991 and the matter was reported to the police on 30‑4‑1991 by Haji Ahmad P.W.7 and the same was recorded by Asghar Hayat, S.‑I. which is Exh.P.A.
The prosecution story as disclosed by Haji Ahmad in his statement Exh.P.A., made before the police was to the effect that on the night between 27/28th of April, 1991, the first informant with his nephew Ghulam Ahmad was coming in a car from Quaidabad to Jandawala. At about 3‑30 at night when they reached between Saminanwala and Jhandanwala, they noticed that road had been blocked by placing a log. They stopped the car. In ‑the meanwhile, three unknown persons, who had muffled their faces, the description of each of them was given in the F.I.R., two of them were armed with Kalashnikovs and the third was armed with a revolver emerged. They made them get down from the car. The said persons searched them and took out Rs.4,200 from the pocket of the first informant, and took Rs.1,300 with the National Identity Card and wrist‑watch from the pocket of Ghulam Ahmad. In the meanwhile, a bus from Jhandanwala and a pick‑up also arrived there. The accused persons stopped them also and robbed the passengers. Thereafter the accused got into a pick‑up parked in the nearby bushes and went away. Since the first informant and his nephew Ghulam Ahmad had to go to Lahore in connection with some important work, therefore, on their way back they lodged the report.
Muhammad Aslam, S.‑I., P.W.10 had partly investigated the case. He had arrested Muhammad Mansha and Muhammad Nawaz, appellants on 17‑1‑1992 and sent them to judicial lock‑up. On 19‑1‑1992, he recovered pick‑up bearing No.BUR‑3638 from Police Station Mandera vide recovery memo. Exh.P.L. On 20‑1‑1992, Ghulam Ahmad P.W. produced watch P.11, allegedly given to him by Azam alias Aju, absconder co‑accused of the appellants, which was secured vide memo. Exh.P.I. He recorded the statements of the recovery witnesses. On 21‑1‑1992, he gave application Exhs.P.D. to A.C., Kalur Kot and obtained orders Exh.P.D./1 regarding holding of identification parade. On 27‑1‑1992, identification parade was held under the supervision of Ilaqa Magistrate wherein one Bashir Ahmad was not identified by any of the witnesses, therefore, he was got discharged. However, the other accused/appellants were identified. Muhammad Nawaz, appellant while in custody on 11‑2‑1992, got recovered cash and golden ornaments from his house which were watch P.2, pair of ear‑rings P.2/1‑2, finger‑rings P.4 and five currency notes of Rs.500 each, P.13/1‑5 which were secured vide memo. Exh.P.M. On the same day, Muhammad Mansha accused also led the police, to his house and got recovered golden ear‑rings P.3, identity card of Ghulam Ahmad P.W., four currency notes of Rs.500 each P.14/1‑4 and ten currency notes of Rs.100 each P.15/1‑10. All these articles were secured vide, recovery memo. Exh.P.N. After completion of the investigation, he challaned the accused.
The prosecution in support of its case produced ten witnesses in all. ` P. W. I Muhammad Razzaq, H. C. had proved the formal F. I. R., Exh.P.A./1, registered by him. P.W.2 Zafar Iqbal a driver, stated that 1‑1/2 years earlier he had sold the watch P.1 to Qasim Shah P.W., for Rs.1,000 and executed receipt EXh.P.B. Muhammad lqbal P.W.3 stated that two months before the occurrence he had prepared and sold a pair of golden ear‑rings P.2/1‑2, earrings P.3 and a golden finger‑ring P.4, to Qasim Shah, P.W. Receipt Exh.P.C. was in his hand. P.W.4 Mr. Tahir Abbas Bukhari, Magistrate 1st Class, supervised the identification parade held on 27‑1‑1992. According to him, he took all the precautions and supervised the identification parade wherein Muhammad Mansha and Muhammad Nawaz accused were identified by the witnesses. He further stated that both the accused were made to sit alongwith other 28 undertrial prisoners. Fayyaz Akhtar, S.‑I./S.H.O. P.W.5 stated that on 16‑1‑1992 he arrested Muhammad Nawaz, appellant and recovered revolver P.5, 16 live cartridges P.6/1‑16 and took them into possession vide memo. Exh.P.F. On the same day he arrested Muhammad Mansha, accused and recovered Kalashnikov P.8 loaded with 20 live cartridges P.8/1‑20, spare magazine P.9 with 20 live cartridges P.9/1‑20, a bag P.10 containing 215 live cartridges P.10/1‑215 vide memo. Exh.P.G. Ghulam Ahmad P.W.6, Haji Muhammad P.W.7 and Ghulam Qasim Shah P.W.8 gave the eye‑witness account of the occurrence. According to Ghulam Ahmad P.W.6 he alongwith Haji Muhammad P.W.7 between the night of 27/28‑4‑1991 was going to Jhandanwala when they stopped the car because of blockage of the road. Three accused armed with fire‑arms came and robbed them. In the meanwhile, a bus being driven by Qasim Shah P.W. was also stopped and the passengers alongwith the driver was also robbed. Another pick‑up came, the passengers of that pick‑up were also robbed. He further stated that an identification parade was held wherein he was able to identify the appellants. Haji Muhammad P.W. corroborated the version given by him in the F.I.R. Exh.P.A. and further stated that he had identified the accused in jail. Ghulam Qasim Shah, P.W.8 stated that on 28‑4‑1991 at about 3‑30 a.m., he was taking Baraat in his bus to Sargodha. On the way he found the road was blocked. He also saw some dacoits robbing the passengers of a car. When he stopped his bus, two of the culprits came there. They were armed with Kalashnikovs and a revolver. Muhammad Mansha and Muhammad Nawaz appellants were armed with revolver and Kalashnikov, respectively. He and Muhammad Shah were directed to get down from the bus. The witness was robbed of Rs.10,000. The' accused persons wanted to rob the womenfolk as well but the witness requested that he would hand over the ornaments to them and they should not enter the bus to which they agreed, and thereafter he took a pair of golden earnings P.2/1‑2 and fingering P.5 from his wife and one ear‑ring P.4 from h;, sister and handed over to the accused. The witness had seen and identified the accused in the moonlight as well as in the light of the vehicles. He further stated that he had purchased watch P.1 from one Zafar Iqbal P.W. and had got prepared ornaments P.2 to P.4 from Muhammad Iqbal P.W. He was associated in the identification parade and identified the culprits. The investigation was conducted by Asghar Hayat, S.H.O. P.W.9 and finally by Muhammad Aslam, S.‑I. P.W.10 who challaned the accused.
At the conclusion of prosecution evidence, the appellants were examined without oath. They refuted the prosecution allegations and pleaded innocence. They however, stated that they were shown to the witnesses before the identification parade. They also stated that there was a police encounter wherein one constable was injured. The police suspected them as one of the culprits of the said encounter. As many dacoities were committed in the District, they were arrested simply on suspicion and thereafter falsely involved in the case. They, however, neither appeared in their defence on oath nor produced any defence evidence.
Learned counsel for the appellants submitted that the case of the appellants is based on mala fide and with ulterior motive, that no case is made out against the appellants, that the occurrence took place in the dark hours of the night, that the occurrence took place on 27‑4‑1991 while the appellants were arrested on 17‑1‑1992 and their identification parade was held on 27‑1‑1992. Learned counsel for the appellants submits that after such a long time no body could be able to identify the real culprits. He further submits that according to the F.I.R. the accused persons had muffled their faces. He submits that P.W.2 and P.W.3 had admitted during the cross‑examination that the receipts of golden ornaments and other ornaments were executed by them on the asking of the police. He submits that the prosecution case is full of doubt.
On the `other hand learned State Counsel submits that there is no enmity between the police and the P.Ws. That the appellants were correctly identified in the identification parade. That the appellants were identified in the light of vehicles and also in the moonlight. He supports the judgment of the trial Court.
We have .heard the learned counsel for the parties and also have gone through the evidence recorded by the trial Court. In the instant case the occurrence took place in the dark hours of night. According to the F.I.R. the accused had muffled their faces. The question is that if they had muffled their faces how their descriptions could be given in the F.I.R. and how they could be identified. Moreover, the occurrence took place on 27‑4‑1991 and the appellants were arrested on 17‑1‑1992 and the identification parade had held on 27‑1‑1992 and it is not possible that after the lapse of about 9 months the P.Ws. could be able to identify the appellants. The recoveries effected from the appellants are also doubtful. It may also be noted here that the appellants have already undergone the sentence and have already been released from the judicial lock‑up as submitted by the learned counsel for the appellants but he had argued the appeal on merits. After scanning the whole prosecution evidence we are of the view that case is full of doubts and benefits of doubt is extended to the appellants. Conviction awarded to the appellants is set aside. If they have not been released, then they shall be released from judicial lock‑up if not required in any other case.

N.H.Q./M‑314/L Appeal accepted.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 2068 #

2000 P Cr. L J 2068

[Lahore]

Before Riaz Kayani, J

SAID‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.908 of 1999, decided on 19th May, 2000.

Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Sentence‑‑‑Reduction in‑‑‑Accused who had admitted double murder, had pleaded for lesser sentence contending that in the situation where paramour and female relative of accused were found in an actual compromising position, lesser penalty of two to three years at the most was to be imposed‑‑‑Validity‑‑‑If couple was seen by accused actually committing sexual intercourse then lesser penalty of two or three years for killing two persons among whom one was real sister of the accused, was sufficient and appropriate to meet ends of justice, but that was not the position in the case‑‑‑Evidence on record had proved that both deceased were not indulging in sexual intercourse at the time of their murder as neither they had removed their Shalwars nor vaginal swabs taken from vagina of deceased lady were found to be stained with semen‑‑Accused had simply found his sister in the company of her paramour who were dressed in their clothes and sexual intercourse had not commenced‑‑‑No doubt any respectable person would lose his power of self‑control when he would see his sister in the arms of a paramour at night, but one had to control his passion and allow law to take its own course‑‑‑Sentence of imprisonment which ran up to 25 years had to be lessened or increased depending upon amount of provocation given‑‑‑Provocation given in case of accused neither called for sentence of imprisonment to 25 years as imposed by Trial Court being on extreme side nor two or three years as claimed by the accused‑‑High Court maintaining conviction of accused reduced sentence of imprisonment to ten years' imprisonment.

Nazar Abbas Syed for Appellant.

Ch. Abdul Rashid Monan for the State.

Date of hearing: 19th May, 2000.

JUDGMENT

Said son of Atta Muhammad has through this criminal appeal challenged the validity of the judgment dated 18th of August, 1999 passed by the Additional Sessions Judge, Jhang, whereby, he was convicted under section 302(c), P.P.C. for the murders of Tahir and Mst. Kaneez Fatima and was sentenced to 20 years' R.I. for each murder. Benefit of section 382‑B, Cr.P.C. was not extended.

Muhammad Akram, appellant has filed Criminal Revision bearing No.564 of 1999 for enhancement of sentence awarded to Said.
I intend to deal with both these matters through this single judgment.
The occurrence which resulted in the deaths of Kaneez Fatima and Tahir took place between the night of 12/13 of November, 1996 in the deserted Ihata situated in the vicinity of Chak No. 144/JB, Tehsil Chiniot at a distance of 13 miles from the Police Station Chiniot. Complaint was made by

M. Akram, brother of Tahir deceased and was recorded by Muhammad Sadiq, P.W.7, S.H.O., at the police station.

Prosecution version disclosed in the First Information Report authored by Muhammad Akram is that his brother namely Tahir was an employee of Canal Department and posted at Bangalow Kot Wasawa At about 10‑30 p.m. he alongwith Ahmed acquitted accused, were coming from the said Bungalow towards their house to take evening meal when Tahir reached near the tube well of one Sher Ali Shah, they found Said, Muhammad Khan and Mian Khan present through a pre‑plan and conspiracy to murder his brother. On seeing his brother all of them got up and caught hold of his brother and threw him on the ground whereupon Said, appellant fired with his gun and injured him grievously. Azeem son of Muhammad Hussain, and Nazir Ahmad son of Allah Dad Khan ‑alongwith himself reached the place of occurrence. Since Said was armed with a gun and threatened them that if they came near they would be killed, consequently they stood at some distance, whereafter, the accused caught hold of Tahir from his hands and legs who was injured, lifted and placed him in an uninhabited Ihata, from where sounds of fire‑shots were heard and after some time, Said dragged his sister. Mst. Kaneez Fatima aged 19/20 years who was virgin from her house and brought her to the deserted lhata by throwing her near the dead body of his brother and fired upon her killing her. Reason for. these murders was that Said and his relatives suspected that his brother Tahir had illicit relations. with Mst. Kaneez Fatima. It was stated that since it was dark being night time he could not immediately go to inform the police.
Chaudhry M. Sadiq Maiken, S.H.O.; Police Station Saddar, Chiniot after recording the F.I.R. proceeded to the spot, prepared the injury statement Exh.P.B. and Inquest Report Exh.P.C. of the dead body of Tahir. Similarly he prepared injury statement Exh.P.G. and inquest report Exh.P.H. in respect of the dead body of Mst. Kaneez Fatima and despatched the bodies to the mortuary for post‑mortem examination. Since the bodies were lying on the grass, no blood‑stained earth was collected. On 15‑11‑1996 Said was arrested and while in police custody he led to the recovery of gun (P.1) from a residential room from underneath the bedding wh;ch was taken in possession vide memo. Exh.P.F.
Doctor Saifullah, Medical Officer, Rural Health Centre, Bhowana on 13‑11‑1996 at 3‑45 p.m. conducted the post‑mortem examination on‑the dead body of Tahir and found the following injuries on his person:‑‑

(1) .A lacerated wound 4 x 3 c.m. on left eye ball It was wound of

entry underlying skull bone was fractured.

(2) A lacerated wound 10 c.m. x 6 c.m. of entry on right eye ball, underlying skull bone was fractured into pieces. Brain matter was

coming out..

(3.) A lacerated wound of entry 6 x 4 c.m. on the right temporal area, underlying skull bone was fractured.

(4) A lacerated oval wound of entry 4 c.m. x 4 c.m. on front of right middle abdomen. There was corresponding hole on the Qameez and Bunian.

(5) Five lacerated oval wounds of entry of different sizes in an area of

10 x 8 c.m. on left buttock with corresponding hole on Shalwar.

In the opinion of the doctor, cause of death was due to shock resulting from external and internal haemorrhage because of injuries Nos.l to 4 who were sufficient to cause death in the ordinary course of nature and were fatal to life. Injuries were ante‑mortem and inflicted by a fire‑arm. Time between death, and injuries was immediate and that of between death and post‑mortem examination was 12 to 16 hours.

Fida Hussain, Dispenser, T.H.Q. Hospital, Chiniot appeared as P.W.8 and stated that Doctor Amtul Raqeeb remained posted in the said hospital for about 2 years and, therefore, he `is conversant with her handwriting and signatures. He identified the signatures of the Lady Doctor on Exh.P.K. which was post‑mortem report of Mst. Kaneez Fatima who had been examined by the aforesaid Lady Doctor and had gone abroad and there was no likelihood of her arrival in Pakistan. in near future. Exh.P.K. indicated 5 fire‑arm injuries on the different parts of the body of Mst. Kaneez Fatima, examined on 13‑11‑1996 at 2‑50 p.m. Injuries Nos. l; 2 and 4 were stated to be sufficient to cause death in the ordinary course of nature.
The trial Judge extending benefit of doubt. to Muhammad Khan, Mian Khan and Ahmed acquitted them.
After completing the investigation, challan was submitted in the Court. Appellant was indicted, he denied the charge and pleaded not guilty.

During trial, prosecution examined as many as 10 witnesses. Ocular testimony account was furnished by M. Akram as P.W.3 as complainant and Nazir Ahmed.

Three vaginal swabs taken at the time of post‑mortem examination were found to be not stained with semen .by the Chemical Examiner vide his report Exh.P.M.
Said appellant aged 25 years while in his statement under section 342, Cr.P.C. in reply to the question as to why prosecution has brought the case against him has stated that on the fateful night he was coming back to his house from his agriculture land after irrigating his fields and when he reached near the Ihata situated closed to his residential house he heard whispering sound and found both the deceased in a compromising

position and committing Zina with each other. Kaneez Fatima was his unmarried sister and getting highly provoked under grave and sudden provocation he murdered both of them at the spot by firing with his gun and after the occurrence he himself appeared before the police. None of his co accused was present at the spot at that time. The complainant involved his entire family after distorting the facts.

Learned counsel appearing for the appellant pleaded for lesser penalty and stated that in such‑like situation where the paramour and the female relative of the accused is found in an actual compromising position, lesser penalty of 2 to 3 years at the most is imposed. Conversely, learned counsel appearing for the State appeared and supported the conviction and sentence recorded by the trial Judge.
The ocular testimony account has been furnished by M. Akram, P.W.3 and Nazir Ahmad, uncle of the deceased as P.W.4. Apart from reiterating the contents of the First Information Report certain improvements have been made. The delay in lodging the F.I.R. casts serious doubt about the presence of these witnesses ‑and secondly the story of firing at the deceased Tahir on one place and then picking him up and placing him at the deserted Mata where after firing the remaining shots and then bringing his sister from the house and throwing her next to the dead body of the deceased Tahir and also killing her with fire‑arm shots is not appealable to the reason and logic.
Story has been innovated by the eye‑witnesses to give the colour of deliberate murders based on suspicion. This is too far‑fledged an idea of conceiving that on the basis of mere suspicion a brother would bring his sister from the house to throw her on the dead body of her paramour and then kill her. The occurrence took place in the dead of the night in the deserted Ihata affording an opportunity to two lovers to meet and attempt to co‑habitate. They were seen by the appellant who by losing total control over his passion shot dead his sister namely Kaneez Fatima alongwith her paramour. These murders came to light when the morning dawned and it was at that time when the complainant came and saw the dead body of his brother alongwith her beloved and went to the police station and made a report. However, since the appellant has admitted the murders, therefore, his culpability stands determined and the only question, which requires consideration is the sentence. Conviction already had been made under section 302(c), P.P.C. which according to the latest law pronounced by the apex Court takes into consideration the old exceptions to section 300, P.P.C., which are now being dealt with by penal clause under section 302(c), P.P.C.
Report of Dr. Saifullah who conducted the post‑mortem examination on the dead body of Tahir while describing injury No.5 has observed a corresponding hole on his Shalwar. Meaning thereby that the deceased had not removed his Shalwar at the time of occurrence. Similarly, the vaginal swabs examined by the Chemical Examiner which were taken from the vagina of the deceased lady were found to be not stained with semen. Both these facts lend credence to the observation that Mst. Kaneez Fatima and Tahir had not yet commenced co‑habitation. Admission by the appellant himself that he was attracted by the whispering sound indicates that the deceased were talking to each other in low tone and may be the talk was strictly amorous in nature, however, the coitus has not yet started. The beneficial admission made by the Investigating Officer, Chaudhry M. Sadiq Maiken, Inspector who appeared as P.W.7 have to be taken with a pinch of salt. Trial Court had already criticized the manner of his investigation. I endorsed that view. The appellant, therefore, found his sister in the company of her paramour although they were dressed in their clothes and the sexual intercourse had not commenced, therefore, losing one's emotions to such an extent as to riddle both the deceased with bullets indicates doing of a frenizied mind. There is no doubt that any respectable person will lose his power of self‑control when he sees his sister in the arms of a paramour at night but yet one has to control his passions and allow law to take its own course.
Arguments of the learned counsel that the lesser penalty of 2/3 years for killing of two persons would meet the ends of justice may have been appropriate and apt if the couple was seen actually committing sexual intercourse but for reasons discussed above that not being the position, reducing the punishment to the .period prayed for would be grossly inadequate to the dictates and the demands of justice. By observing this I by no means want to hold that the appellant was not deprived of power of his self‑control. However, the sentence of imprisonment which runs up to 25 years has to be lessened or increased depending upon the amount of provocation given. The provocation given in this case neither calls for. sentence of imprisonment to 25 years as imposed by the learned trial Judge being on the extreme side and similarly pleading for sentence of imprisonment for 2 to 3 years is on the other extreme side of being too light and inadequate. Keeping in. juxtaposition, the complete facts and circumstances while maintaining the conviction I reduce the sentence of imprisonment to 10 years' R.L. Imprisonment shall be concurrent in nature and benefit of section 382‑B, Cr.P.C. is also extended
With this modification, appeal is dismissed.
Criminal Revision No.564 of 1999, for reasons rendered in the instant Criminal Appeal, Criminal Revision is accordingly dismissed.

H.B.T./S‑86/L Order accordingly.

PCRLJ 2000 LAHORE HIGH COURT LAHORE 2074 #

2000 P Cr. L J 2074

[Lahore]

Before Nazir Ahmad Siddiqui, J

FAZAL AHMED ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Bail Petition No.835‑B ®f 1999/BWP, decided on 29th November, 1999.

Criminal Procedure Code (Vof 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of. 1979), S.10(2)‑‑‑Bail‑‑‑Evidence available against the accused was of the Chowkidar of the garden who had already sworn an affidavit denying the occurrence‑‑‑Complainant Police Officer had himself investigated the case who had registered so many F.I,Rs. of similar nature to show his performance‑‑‑Accused were not arrested from the alleged place of occurrence‑‑‑Time of occurrence was not mentioned in the F.I.R.‑‑Aforesaid contentions raised on behalf of accused had made out a case of bail in their favour‑‑‑Accused were admitted to bail accordingly.

1983 SCMR 790 ref.

Abdul Rasheed Rashid for Petitioner.

Muhammad Iqbal Gujjar for the State.

ORDER

Through this single order, the petitions for bail after arrest (Criminal Miscellaneous 835/13 of 1999 and 1083/13 of 1999) moved on behalf of Fazal Ahmad and Nazir Mace are being disposed of.

A case vide F.I.R. No.45 of 1999, dated 1=3‑1999, under section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was ‑registered at Police Station Samma Sattah, District Bahawalpur, against the petitioners upon spy information, raid was conducted by Muhammad Arshad, S.‑I. Police Station Samma Sattah who found the petitioners committing Zina.
The challan in the case has been submitted to the learned trial Court.
The prayer of the petitioners for the post‑arrest bail has already been declined by the learned Additional Sessions Judge, Bahawalpur, vide his ‑ruler, dated 2‑6‑1999. Hence these petitions.
Learned counsel for the petitioners argues that petitioners are behind the bars since 1‑3‑1999 though the challan has been submitted to the trial Court yet there is no active progress in the trial; that there is no evidence against the petitioners for the commission of the alleged offence except than of the statement of the complainant who is himself Investigating Officer; that I the only evidence available was that of Chowkidar of the garden who had already given an affidavit to the Investigating Officer to the effect that no such occurrence had ever taken place in the garden; that the registration of the case is an outcome of the mala fides on the part of the S.‑I./Investigating Officer and the said Investigating Officer has got registered so many similar F.I.Rs. in order to show his "performance"; that the petitioners' are not known to each other. The petitioners were not arrested from the place of alleged occurrence; that no time of occurrence has been mentioned in the F.I.R. In support of his submissions, he relied upon 1983 SCMR 790.
Learned counsel appearing on behalf of the State opposes the bail petition on the ground that the alleged offence falls within the prohibitory clause but he remained unable to refute the above factual position:
Having been pursuaded by the arguments of the learned counsel for the petitioners, I am inclined to allow this petition.
Resultantly, the petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs.50,000 with two sureties, each in the like amount to the satisfaction of learned trial Court. Disposed of.

N.H.Q./F‑18/L Bail granted.

Peshawar High Court

PCRLJ 2000 PESHAWAR HIGH COURT 8 #

2000 P Cr. L J 8

[Peshawar]

Before Talat Qayum Qureshi, J

Mst. RIZWANA BIBI --- Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.22 of 1999, decided on 11th October, 1999.

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

----S. 13---Criminal Procedure Code (V of 1898), Ss.423 & 561-A---Quashing of order dismissing the appeal for non-prosecution---Appeal which had not yet been admitted was dismissed in default by Sessions Court---On receipt of appeal Court under S.423, Cr.P.C. was duty bound to send for the record of the case and after perusing the. same and hearing the accused or her pleader might dismiss the appeal if no sufficient ground was available for interference---Appeal once admitted also must have been decided on merits unless the same was dismissed in terms of 5.421, Cr.P.C.---Impugned order was consequently, set aside and the case was remanded to Sessions Court for hearing of appeal and its decision on merits.

Muhammad Ashiq Faqir v. The State PLD 1970 SC 177 and Muhammad Bakhsh v. The State 1985 SCMR 89 ref.

Maqbool Hussain for Petitioner.

Qazi Muhammad Ghazanfar, A.A.-G. (on Pre-Admission Notice). for the State.

Date of hearing: 11th October, 1999.

JUDGMENT

Mst. Rizwana Bibi while in police custody in a murder case registered vide F.I.R. No.314 on 22-8-1997 in Police Station Saddar Haripur led police party for recoveries. On her pointation a D.B. shot gun was recovered from the cattle-shed which belonged to her father. A case under section 13, Arms Ordinance was registered vide F.I.R. No.326 on 30-9-1997 in Police Station Saddar Haripur against her. She was tried under section 13, Arms Ordinance in the Court of learned Judicial Magistrate, Haripur and on conclusion of trial she was convicted and sentenced to one year's R.I. vide order. dated 30-6-1999. She filed appeal against the order, dated 30-6-1999 in the Court of learned Sessions Judge, Haripur which was fixed for 16-8-1999 for hearing. The learned Sessions Judge vide order, dated 16-8-1999 dismissed the appeal for non-prosecution with the following order:--

"Call time and again. None turned up on behalf of petitioner till 9'O Clock. Dismissed in default. File be consigned."

Feeling aggrieved of the said order, the petitioner has filed petition under section 561-A, Cr.P.C.

This Court on 8-10-1999 issued pre-admission notice to the learned A.A.-G. Arguments heard and record annexed with the petition perused.
It is admitted position that the appeal was not dismissed in terms of section 421, Cr.P.C. but was dismissed for non-prosecution. The appeal had not been admitted when it was dismissed in default. Under section 423; Cr.P.C. on receipt of appeal, it is the duty of the Court to send for the record of the case if such record is not already in Court. After perusing such record, hearing appellant or his pleader the Court may if it considers that there is no sufficient ground for interference dismiss the appeal. Under section 421, Cr.P.C. the Court has powers to dismiss the appeal summarily if it considers that there is no sufficient ground for interference. No appeal presented under section 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same.
The perusal of the abovementioned provision of law shows that appeal once submitted must be decided on merits unless the same is dismissed in terms I of section 421, Cr.P.C. In case of Muhammad Ashiq Faqir v. The State PLD 1970 SC page 177 it was observed:--

"Under section 423 if the appeal is not dismissed under section 421, the appellate Court shall after the issue of notice, send for the record of the case, if such record is not already in Court, and after perusing such record and hearing the appellant or his pleader, if he appears and the Public Prosecutor, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal. What was then the consequence of the non-appearance of the appellant or his pleader, when the appeal was called for hearing by the learned Judge on the 26th April, 1967. The answer is to be found in section 423(1) viz. after perusing such record and hearing the appellant or his pleader, if he appears and the Public Prosecutor, if he appears, and may, if it considers that there is no sufficient ground for interfering, dismiss the appeal.' The absence of the appellant or his pleader, therefore, does not relieve the Court from the duty of perusing record and giving reasons in support of the judgment that there is no sufficient ground for interfering with the conviction and sentence of the appellant."

The same principle was upheld in Muhammad Bakhsh v. The State 1985 SCMR 89 wherein it was held:--

"In not applying his mind to the merits of the appeal and in dismissing it for non-prosecution the learned Judge in the High Court clearly adopted a procedure contrary to the imperative terms of section 423, Cr.P.C. The order is, therefore, not sustainable."

In the result the petition is allowed and the case is remanded to the learned Sessions Judge, Haripur for hearing of appeal and for decision afresh only merits.

N.H.Q./468/P Case remanded

PCRLJ 2000 PESHAWAR HIGH COURT 25 #

2000 P Cr. L J 25

[Peshawar]

Before Mian Muhammad Ajmal and Mrs. Khalida Rachid, JJ

SYED SIKANDAR SHAH---Petitioner

versus

INSPECTOR-GENERAL POLICE, N.-W.F.P., PESHAWAR and 8 others---Respondents

Writ Petition No.354 of 1999, decided on 7th July. 1999.

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

----S. 302/324/188---Criminal Procedure Code (V of 1898), S.169---Constitution of Pakistan (1973), Art. l99---Constitutional petition---Discharge of accused---Validity---Accused soon after the occurrence went into hiding and fraudulently succeeded in obtaining transit pre-arrest bail orders for four times from the Courts of different jurisdiction without disclosing the proceedings of previous bail applications---Range Inquiry Panel, therefore, had no authority to recommend for the discharge of accused under S.169, Cr.P.C.---Powers under S.169, Cr.P.C. could only be exercised by the police during the course of investigation if accused had been in their custody which was a condition precedent for invoking the provisions of the said section---Accused admittedly was a fugitive from law and the Courts, hence S.169, Cr.P.C. could not be pressed into service in case of the absconding accused---Accused having already been placed in column No.2 of the chafan, investigation declaring the accused to be innocent was not of much value as the Court was not bound to follow and act upon the same and was at liberty to look into evidence qua his guilt or innocence---Proceedings under 5.169, Cr.P.C. were consequently, set aside with the direction to prosecution to submit the challan in the Court of competent jurisdiction.

1991 SCMR 1 and PLD 1956 FC 53 ref.

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

----Ss. 169 & 173---Discharge of accused after submission of challan in the Court---Once -the challan is submitted in the Court under S.173, Cr.P.C., the provisions of S.169, Cr.P.C. cannot be invoked.

Abdul Samad Khan and Abdul Sattar Khan for Petitioner. Malik Manzoor Hussain, Addl. A.-G. for the State.

Date of hearing: 7th July, 1999.

JUDGMENT

MRS. KHALIDA RACHID, J.--- The brief resume of the facts leading to the filing of the present Constitutional petition is as under:--

On 11-7-1998 at 11-00 hours a report vide F. I. R. No. 378 .under section 302/324/188, P.P.C. read with section 13, Arms Ordinance was recorded in Police Station East Cantt., Peshawar by Syed Sikandar Shah (petitioner herein) wherein Muhammad Raza Shah, respondent No. 8, alongwith Zahir Shah father of Raza Shah, one Majeed and Farhad were charged for the murder of his uncle Pir Rukhay, and one Jan Muhammad and ineffective firing at him inside the Court of the Senior Civil Judge, Peshawar. Out of all the accused only Farhad was arrested on the spot alongwith the crime weapon while the remaining accused, all residents of Jamrud, Khyber Agency, decamped from the scene of occurrence. Warrants under section 204, Cr.P.C. were obtained against them and necessary proceedings under section 87/88, Cr.P.C. were initiated. Political Agent, Khyber Agency was also asked to help and facilitate the arrest of the said accused. Consequently, respondent accused Raza Shah and accused Zahir Shah succeeded in getting successive transitory bail orders from the Courts of Sessions Judge of different jurisdiction on different pretexts. Raza Shah accused-respondent vide Criminal Miscellaneous No. 152 of 1998 obtained pre-arrest transit ball from Zilla Qazi, Daggar, District Buner on 14-7-1998, however, with the directions to appear before the competent Court on 10-8-1998. After the expiry of the period of said transilory bail he succeeded in obtaining second pre-arrest transitory bail from the Additional Sessions Judge/ Azafi Zilla Qazi, Swat, concealing his earlier bail application moved before the Sessions Judge, Daggar. He was once against allowed a transitory bail with the directions to appear before the Sessions Judge, Peshawar on a fixed date i.e. 5-9-1998. Upon expiry of transitory period Raza Shah respondent No.8, once again, for the third time moved transit bail application before the Court of Sessions Judge, Mardan suppressing the earlier bail applications. He was once again obliged with the transitory bail with the directions to appear before the Sessions Judge, Peshawar on a fixed date. Raza Shah respondent ultimately succeeded in obtaining pre-arrest bail from the Sessions Judge, Peshawar on 510-1998. Aggrieved of his successful pre-arrest bails in deceitful manner, the petitioner (complainant) moved an application under section 561-A, Cr.P.C. (Criminal Miscellaneous No. 152 of 1998) before this Court for the quashment of aforesaid orders of the Sessions Judges for having been obtained by committing fraud on the Courts by suppressing material facts. The application was accordingly allowed .by this Court vide order, dated 19-10-1998 with the following conclusion:

"In these circumstance these Criminal Miscellaneous Petitions are allowed and the Investigation Officer conducting investigation in case F.I.R. No.378, dated 11-7-1998 Police Station East Cantt., Peshawar is directed to proceed against the respondents in accordance with law. The Sessions Judge, Charsadda, with reference to his order, dated 20-7-1998 in T.B.B.A. No.420 of 1998, Acting Sessions Judge/Zilla Qazi, Buner with reference to his order, dated 14-7-1998 in T.B.BA. No.52 of 1998, Additional Sessions Judge/Izafi Zilla Qazi, Swat with reference to his order, dated 25-7-1998, in T.B.B.A. No. 102 of 1998 and 13-8-1998 in respect of Muhammad Raza Shah and Sessions Judge, Mardan with reference to his order, dated 4-9-1998 in T.B.B.A. No.421 of 1998 and order, dated 8-9-1998 in T.B.B.A. No.433 of 1998 to proceed against sureties for forfeiture of ball bonds in accordance with law and the office is directed to circulate a copy of this order amongst the Sessions Judges of the Province."

The pre-arrest bail application pending before the Sessions Judge, Peshawar, was kept on adjourning on one pretext or the other by the respondent Raza Shah from 5-10-1998.

After registration of the case, the local police of Police Station East Cantt. conducted the investigation prima facie connecting the accused including respondent No.8 in the commission of the offence. In the subsequent inquiry by C.I.A. Staff against Raza Shah respondent No.8, no final opinion was given.

Upon the direction of D.I.-G., Peshawar Range, dated 3-2-1999 the investigation was further entrusted.. to Range Inquiry Panel. The Investigating Officer of the Range Inquiry Panel completed the investigation and declared respondent Raza Shah as innocent and recommended for the release of the respondent-accused Raza Shah under section 169, Cr.P.C. Respondent-accused Raza Shah, in view of the recommendation/directions for discharge under section 169, Cr.P.C. withdrew his pre-arrest bail application pending before the Additional Sessions Judge, Peshawar on 19-2-1999. The application was not only entertained in the absence of Raza Shah but also the B.B.A. was ordered to be dismissed as withdrawn by the learned Additional Sessions Judge. The petitioner aggrieved of the investigation of Range Inquiry Panel on the ground that Raza Shah respondent is directly charged in the promptly lodged F.I.R. for double murder inside the Court of Senior Civil Judge, Peshawar and that soon after the occurrence, he went into hiding and consequently, succeeded in obtaining transit pre-arrest bail orders for four times from the Courts of different jurisdiction fraudulently without disclosing the proceedings of previous application is enough to reasonably connect the respondent Raza Shah with commission of offence. It was insisted by the learned counsel that Raza Shah respondent was never taken into custody for a single day and has not joined the investigation, therefore, the investigation conducted by the local police has rightly connected the petitioner with the commission of offence and that subsequent investigation by Range Inquiry Panel without the association of the respondent with the prosecution is based on fraud, collusion and undue influence of respondent accused Muhammad Raza Shah alias Raza Shah. It was lastly argued that the Range Inquiry Panel has no authority, whatsoever, to recommend for the discharge of respondent under section 169, Cr.P.C. as he had fraudulently obtained his bail orders from the different Courts.
Mr. K.M.A. Samdani, Advocate engaged by Raza Shah respondent accused when rose to advance his arguments, he was restrained as his client Raza Shah did not appear before this Court in defiance of non-bailable warrants issued against him. In this context, reference may be made to 1991 SCMR 1 and PLD 1956 FC 53. However, out of the courtesy, we allowed him to assist the Court with the facts and background of the case.

We may not forget to mention here that this Court vide order, dated 22-4-1999 had restricted the respondents to take any action on the application under section 169, Cr.P.C. for the discharge of Raza Shah respondent No.8. The said order was assailed before the Supreme Court in Criminal Petition No.34-P of 1999, but the leave was not granted.

We have heard the learned counsel at some length. We would not dilate upon, the merits of the case lest our observations may not prejudice the case of either party at the trial. However, to discuss the legal aspect of the case qua section 169, Cr.P.C. it will be appropriate to reproduce the relevant section, which reads as under:--

169. If, upon an investigation under this Chapter; it appears to the Officer-in-charge of the police station, (or to the Police Officer making the investigation) that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such Officer shall; if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or send him for trial.

The main thrust of section 169, Cr.P.C. is that an Investigating Officer, during the course of investigation, can release an accused person from custody, if he thinks that the accused is innocent due to lack of sufficient evidence connecting him with the crime, with an undertaking to appear before the Magistrate competent to take cognizance. In other words, powers under section 169, Cr.P.C, can only be exercised by the police during the course of investigation when accused is in their custody. Therefore, the custody of the accused, as such, is a condition precedent for invoking provisions under section 169, Cr.P.C. Respondent-accused Raza Shah admittedly is fugitive from law and the Courts, hence section 169, Cr.P.C. could not be pressed into service in case of absconding accused. It is nowhere provided that the Police Officer is empowered to recommend/discharge him from the offence. At the most, the Police Officer can place him in column No.2 of the challan and once the challan is submitted to the Court under section 173, Cr.P:C., the provision o: section 169 cannot be invoked. After the submission of the challan the duty of the Magistrate commences who, if competent, takes cognizance of the offence. If the offence is exclusively triable by the Court of Sessions, he shall send the case to the Court of Sessions including the accused mentioned in column number 2 of the challan under section 173, Cr.P.C. The trial Judge, after the application of his judicial mind and considering all the available evidence would either discharge him , under section 173(3), Cr.P.C. or charge him under section 245-D, Cr.P.C. and when he decides to proceed with the trial and again if at any stage of the trial, the Court is of the view that the charge is groundless and there is no probability of conviction of the accused for the offence charged with, he could be acquitted under section 249-A, Cr.P.C. or 265-K, Cr.P.C. as the case may be.
Coming to the investigation of Range Inquiry Panel declaring respondent Muhammad Raza Shah alias Raza Shah to be innocent, it may be mentioned here that investigation would not value much as the respondent accused has already been placed at column No.2 of the challan and the Court, taking cognizance has liberty and capability to look into the evidence qua guilt and innocence, after examining all the material and available evidence, forming his own independent opinion. The Court is not bound to follow and act on the report of the investigation conducted by the Range Inquiry Panel.
In the result this writ petition is accepted, the proceedings under section 169, Cr.P.C. are set aside and the prosecution is directed to submit the challan in the Court of competent jurisdiction as early as possible. Parties to bear their own costs.

N.H.Q.1472/P Petition allowed.

PCRLJ 2000 PESHAWAR HIGH COURT 35 #

2000 P Cr. L J 35

[Peshawar]

Vim Before Nasirul Mulk and Muhammad Azam Khan, JJ

MEHBOOB ALI alias MAQBALI--Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 171 of 1994, decided on 21st October, 1999.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Eye-witnesses were natural witnesses of the occurrence and they had no motive to falsely implicate the accused---Ocular testimony was reliably corroborated by the abscondence of accused after the occurrence for more than six months and recovery of kalashnikov from him which had matched with the crime-empties secured from the spot---Conviction and sentence of accused were upheld in circumstances.

Abdul Fayaz for Appellant. Qasim Jan, Law Officer for the State. Jehanzeb Rahim and Abdur Rauf Gandapur for the Complainant.

Dates of hearing: 22nd and 23rd September, 1999.

JUDGMENT

MUHAMMAD AZAM KHAN, J.--- The appellant, Mehboob Ali alias Maqbali son of Atlas Khan and Umar Baz son of Wazir Baz, were tried by the Court of Session on the charge that they on 30-5-1992 at 14-30 hours on the road leading to Sepan near the Baithak of Umar Baz, in the limits of Village Aza Khel Bala, alongwith their absconding co-accused Salim, in furtherance of their common intention committed the murder of Farzand Ali, by firing at him and also ineffectively attempted at the lives of Muzafar Khan complainant and P.Ws. Fazal Ahmad and Niaz Ali.

The learned Sessions Judge, Nowshera vide the impugned order, dated 12-6-1994, convicted the appellant Mehboob Ali under section 302, P.P.C. and sentenced him to undergo life imprisonment with a fine of Rs.10,000 and also to pay compensation of Rs.10,000 to the legal heirs of the deceased or in default to undergo two years further R.I. The benefit of section 382-B, Cr.P.C. was also extended to the appellant. However, Umar Baz was not held responsible for the commission of the offence and was acquitted of the charge levelled against him.

Aggrieved of his conviction and sentence the appellant has approached this Court in appeal (Jail Criminal Appeal No.171 of 1994), while Muzafar Khan complainant has filed Criminal Revision (Criminal Revision No.84 of 1994), for enhancement of amount of fine, compensation and the sentence of imprisonment for life -to death. As both the matters arise out of the same judgment, therefore, we propose to dispose them of by this single judgment.

The facts of the case briefly stated are that Muzafar Khan complainant reported the incident to Inayatullah Khan, A.S.-I. in P.P. Aza Khel wherein he stated that he alongwith his sons Fazal Ahmad, Niaz Ali and Farzand Ali, were going back to their house after attending the funeral prayers in the Janazgah. When they reached near the Hujra of Umar Baz situated near Sepan Road and Farzaiid.Ali was going ahead of them, accused Umar Baz, Maqbali and Salim absconding co-accused came out from there duly armed with kalashnikoves. On seeing them they started firing at them. Farzand Ali was hit and died. After the commission of the offence the accused made good their escape. The occurrence was witnessed by Fazal Ahmad and Niaz Ali sons of the complainant.

The motive for the offence was that some days prior to the occurrence, there was an altercation between the deceased and the accused. The report was reduced into writing in the shape of Murasila Exh.P.A./1 which was sent to the Police Station Nowshera Kalan for registration of the case where it was incorporated into F.I.R. Exh.P.A. As the dead body of the deceased was taken to P.P., therefore, the Police Officer prepared the injury sheet and inquest report Exhs. P. M . and P. M . / 1 respectively and sent the dead body to the mortuary for post-mortem examination under the escort of F.C. Muhammad Shuaib.

Dr. Nasrullah (P.W.10) conducted autopsy on the dead body of Farzand Ali and found the following injuries external examination:--

(1) Multiple fire-arm wounds on head, face, right eye and a lacerated wound on right cheek with fracture mandible with resultant disfigurement of head and face.

(2) Four entry wounds on right lateral side of body with its correspondence exit wound on right aliac fossa two on right side chest and left side abdomen.

(3) An injury on right upper shoulder with shattered muscles on right upper arm.

(4) A lacerated wound on right elbow joint with complete destruction of right elbow joint anatomy.

(5) Entry wound left medial thigh measuring 1/2" x 1/2" / 2" x 3" and its correspondence exit on left thigh measuring 1" x 1" x 3".

(6) Entry wound on left thigh measuring 1/2" x 1/2" x 3" with exit on left thigh measuring 1 " x 1 " x 3".

On internal examination the doctor found peritoneum, mouth, small and large intestine injured. Small intestine contained semi-digested food whereas large intestine contained faeol matter. Stomach was healthy and contained semidigested food.

Skull bone fractured, brain and its membrance; spinal card damaged. Thorax wall, ribs, pleaurae, right lung injured. Death was due to shock and bleeding. Time between injury and death 1 /2 hours and between death and postmortem examination three hours.

Inayatullah Khan, A.S.-I. (P.W.8) after sending the dead body to the mortuary proceeded to the spot. He inspected the spot, took into possession and sealed into parcel blood-stained earth vide memo. Exh.P.R., picked up from the spot 4 empties of kalashnikov P. I and 4 bullets P.2 giving fresh smell of discharge vide memo. Exh.P.R./1 in the presence of marginal witnesses. He also took into his possession blood-stained clothes of the deceased Exhs.P.3 to P.6 bearing corresponding cuts brought by Muhammad Shuaib F.C. from the hospital vide memo. Exh.P.R./2. He prepared the site plan Exh.P.B. correct with all its notes, drawing and sketches, at the instance of the P.Ws. He also sent the blood-stained earth and the blood-stained clothes of the deceased to the Forensic Science Laboratory; the report is Exh.P.L./1. He obtained warrants under section 204, Cr.P.C. against the accused Maqbali, Umar Baz and Salim and also obtained proclamation under section 87, Cr.P.C. against them and entrusted to the D. F. C, for service. He recorded the statement of-the P. Ws. The accused were absconding and he handed over the case file to the S.H.O.

Sher Dil Khan, Inspector F.I.A., Peshawar, then S.H.O. Police Station Nowshera Kalan (P.W.12) formally arrested the accused Mehboob Ali on 29-11-1992. The accused was apprehended by the local police of Police Station Risalpur and from his possession they had recovered one kalashnikov P.7, Bandolier Exh.P.8, 3 chargers P.9 and 73 live rounds P.10. The S.H.O. took all these articles into his possession and prepared the memo. Exh.P.R./3 in presence of the marginal witnesses. He sent the kalashnikov alongwith the empties recovered from the spot to the Arms Expert. He submitted supplementary. challan against the accused Mehboob Ali and Umar Baz.

Pervez Khan S.H.O. (P.W.7) had submitted challan under section 512, Cr.P.C. against the absconding accused Salim.

The accused were formally charged to which they did not plead guilty and claimed trial. The prosecution in support of its case examined as many as 12 witnesses. Out of the P.Ws. Muzafar Khan (P.W.4), and Niaz Ali (P.W.5) are ocular witnesses to the occurrence. After close of the prosecution evidence the accused were examined under section 342, Cr.P.C. Both the accused have neither produced evidence in defence nor they have given statement on oath.
We have heard the learned counsel for the appellant (Mr. Abdul Fayaz Khan), Mr. Qasim Jan, Law Officer for the State and Mr. Jehanzaib Rahim, Bar-at-law, Mr. Abdur Rauf Gandapur, for the complainant and have gone through the record of the case. .
The important witnesses to the occurrence in the instant case are Muzafar Khan (P.W.4) and Niaz Ali (P.W.5). Muzafar Khan is the father of the deceased while P.W. Niaz Ali is the cousin of the complainant Muzafar Khan. Both the witnesses have specifically stated that on the eventful day of occurrence their relation namely, Akbar Khan had.died in the village and that these two witnesses accompanied by Farzand Ali deceased and one Fazal Ahmad had gone to attend his funeral ceremony. After having attended the funeral ceremony they were returning back and when they. reached near the Baithak of Umar Baz accused at 2-30 p.m. the appellant namely Mehboob Ali and the acquitted accused Umar Baz alongwith the absconding accused Salim came out from the Baithak duly armed with kalashnikoves and that all the three accused started firing at the deceased who was hit and killed on the spot. Thereafter, the accused decamped from the spot. There is no previous enmity between the parties but the motive given by the witnesses at the trial is that a month prior to the incident the deceased had altercated with the accused. These two witnesses were cross-examined in detail by the defence counsel but no material favourable to the accused-appellant could be brought on the record to create doubt in the prosecution case. The trial Court while convicting the appellant relied on the testimony of these two witnesses, the motive for the offence, the abscondence of the accused and the fact that the appellant arrested alongwith a kalashnikov by the local police of Police Station Risalpur which later on matched with the empties recovered from the spot.
The learned counsel for the appellant raised the following points.

(i) that the alleged two ocular witnesses being relation to the deceased were interested witnesses;

(ii) that the medical evidence does not commensurate with. the ocular account; and

(iii) that the 4 empties of 7.62 bore recovered from the spot were not fired from the kalashnikov recovered from the possession of the accused appellant.

According to the learned counsel the prosecution has also failed to prove the motive for the offence as the same has not been explained in detail.

The learned counsel for the complainant and the learned State Counsel supported the impugned judgment, by reiterating the reasons contained therein and added with vehemence that Muzafar Khan (P.W.4) and Niaz Ali (P.W.5) were the natural witnesses to the occurrence and had given a uniform and consistent version of the occurrence and their testimonies are fully corroborated by the medical evidence, the motive, the recovery of the crime-empties and their matching with the weapon of offence.

We have also examined the record minutely and have come to the conclusion that the testimony of the two witnesses namely, Muzafar Khan (P.W.4) and Niaz Ali (P.W.5) is consistent and is in conformity with the circumstantial evidence. It is a broad daylight occurrence and admittedly the complainant party had gone to attend the funeral of their relation Akbar Khan and on return they met the incident. There is no suggestion on the record on behalf of the defence with regard to the previous enmity between the parties, therefore, the chance of false accusation is quite remote in the instant case. In this case the record suggests that the two witnesses of the prosecution are independent witnesses and they have no motive to falsely charge the present appellant in substitution of the actual culprit. Reliance has been placed 1999 SCMR page 329. The testimonies of these two witnesses are fully corroborated by the fact that after the occurrence the accused absconded for more than six months as the accused was arrested on 29-11-1992. Besides he was arrested by the local police of Risalpur duly armed with kalashnikov which later on revealed to have been used in the commission of the offence as 4 empties of 7.62 bore recovered from the spot were found to have been fired at with the same weapon. 'the objection of the prosecution with regard to the despatch of the crime-empty to the Arms Expert at a belated stage i.e. on 25-1-1993 cannot be of any help to the appellant because no question has been put to the Investigating Officer in the cross-examination with regard to the tampering of the seals of the crime-empties ever since its recovery till these were sent to the Forensic Science Laboratory for analysis, therefore, there cannot be any justification for suspicion regarding the fabrication of the crime-empties. Reliance can be placed on NLR 1999 (Criminal) page 224 (sic), 1982 SCMR page 531. Since no suspicion could be pointed out in respect of fabrication of the crime-empties, therefore, their matching with the weapon of offence in the instant case can be. considered as a corroborative circumstance.

We are, therefore, inclined to hold that the eye-witness to the occurrence were natural witnesses, they had no motive to falsely implicate the accused and their testimonies were reliably corroborative by the evidence discussed above. We, therefore, decline to interfere with the impugned order and the appeal accordingly is dismissed. Consequently, the revision petition fails and is dismissed.

N. H: Q. /471 /P Appeal dismissed.

PCRLJ 2000 PESHAWAR HIGH COURT 60 #

2000 P Cr. LJ 60

[Peshawar]

Before Mian Muhammad Ajmal and Shehzad Akbar, JJ

MEHTAR---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1572 of 1998, decided on 15th June, 1999.

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

----S. 497---Bail, grant of ---Abscondence---Effect---Fugitive from law loses some of the normal rights granted by the procedural and substantive law and noticeable abscondence disentitles the absconder to the concession of bail notwithstanding the merits of the case.

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

----S. 497---Penal Code (XLV of 1860), S.302/307/34---Ball, grant of --Abscondence---Effect---Vicarious liability, principle of ---Applicability--Simultaneous firing of the accused alongwith other co-accused reflected common intention in the commission of crime---Principle of vicarious liability was applicable---Direct charge supported by eye-witnesses coupled with noticeable long abscondence sufficiently provided reasonable grounds to believe that the accused was guilty of offence falling with the prohibitory clause of S.497, Cr.P.C.---Bail was refused accordingly.

1996 SCMR 1023 ref.

Asghar Barkandi, for Petitioner. Assadullah Murwat, A.A.-G. for the State.

S. Sardar Hussain Khan for the Complainant.

Date of hearing: 15th June, 1999.

JUDGMENT

MIAN MUHAMMAD AJMAL, J.--- Accused-petitioner Mehtar facing prosecution in case F.I.R. No.439, dated 27-9-1994 under section 302/307/34, P.P.C., Police Station Kabal, Sawat was refused bail by the learned Additional Sessions Judge/Izzafi Zilla Qazi-II, Swat vide his order, dated 5-11-1998. Now he has approached this Court for the same relief.

According to the F.I.R., Saeed-ud-Din complainant alongwith his father, cousin Afzal Shah and Muhammad Saleh after attending a post-marriage function at Kabal, returned by Bus on 27-9-1994. At afternoon they reached Adda Dardiyal, when they were alighting they saw accused Mehtar and Asghar Khan sitting in the shop of the Matai who started firing on them. The complainant was hit with the fire shot of the accused-petitioner while Afzal Shah sustained injuries with the firing of co-accused Asghar Khan. One Luqman Hakeem a passerby was also injured with the fireshots of the accused. Motive is stated to be blood feud enmity between the parties.
We have heard the learned counsel for the parties and have perused the record of the case with their assistance.
In this case occurrence took place in the year 1994, and the accused petitioner remained fugitive from law for 4/5 years. It is a settled law that fugitive from law loses some of the normal rights granted by the procedural and substantive law and noticeable abscondance disentitles the absconder to the 'concession of bail notwithstanding the merits of the case. Moreover, simultaneous firing of the accused reflect their common intention in the commission of the crime and prima facie the principle of vicarious liability is applicable to the circumstances of the case. Reference can be made to 1996 SCMR 1023.
In view of the direct charge supported by the eye-witnesses couple with noticeable long abscondance sufficiently provide reasonable grounds to believe that the accused-petitioner is guilty of offence charged with which fall; within the prohibitory clause of section 497, Cr.P.C. hence he is not entitled to the concession of bail.

Consequently, this bail application is rejected.

Q.M.H./M.A.K./454/P Bail refused

PCRLJ 2000 PESHAWAR HIGH COURT 167 #

2000 P Cr. L J 167

[Peshawar].

Before Jawaid Nawaz Khan Gandapur, J

Mst. JAN BIBI---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous Bail Application No.501 of 1999, decided on 22nd June, 1999.

Criminal Procedure Code (V of 1898)--

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4--Bail---Accused lady was found carrying four Kgs. of opium in a bus which was recovered from her possession and she had no case for bail on merits---Accused being a woman having a suckling child' her retention in jail could be detrimental to the health of the child---Accused was admitted to bail in circumstances.

Malik Hameed Khan Afridi for Petitioner.

Kh. Azhar Rashid, Asstt. A.-G. for the State.

Date of hearing: 22nd June, 1999.

JUDGMENT

In pursuance of a secret information that a woman is going to transport contraband narcotics in a bus from Kohat to Rawalpindi, A.S.-I. Garib Nawaz, held a Nakabandi at Khushal Gardh Bridge. Police Check Post on 21-3-1999.

When the bus (registration number not mentioned in the F.I.R.) arrived there, it was stopped. The petitioner accused, wearing a Burqa was deboarded from the bus and searched thoroughly by Lady Constable namely, Mumtaz Begum (No. 152) who recovered 10 packets of opium weighing 4000 grams (4 Kgs.) from the petitioner's possession. Since the lady petitioner-accused could not produce any evidence to show that she was in lawful possession of the same, therefore, she was arrested and the opium was taken into its possession by the police party. The A.S.-I. scribed the Murasila and sent the same to. Police Station, Gumbat where, on its basis, the present case was registered against her under section 3/4, Prohibition (Enforcement of Hadd) Order, 1979, vide F.I.R. No.43, dated 21-3-1999.
After her arrest the petitioner applied for bail. Her bail petition was rejected by Additional Sessions Judge, Kohat (Mr. Muhammad Jamshed) by his order, dated 17-4-1999. The operative part of the said order is as under:--

"I have considered the above arguments in the light of record. No private witness is associated -in the case but police witnesses are competent for the purpose. It is not worth consideration that she was not in the know of the crime and was merely travelling with her relative. The case against the accused falls within the prohibitory clause as contraband opium more than 1000 grams has been recovered from her possession. She cannot be extended the benefit of being lady as she has misused her womanhood.

In the light of above, accused-petitioner is not entitled to the concession of bail. As such, her application stands rejected. Consign.

Announced (Sd.) Muhammad Jamshed, 17-4-1999. Additional Sessions Judge, Kohat. "

Hence this petition.
I have heard Malik Hameed Khan Afridi, Advocate, Kohat learned counsel for the petitioner and Kh. Azhar Rashid, learned Assistant Advocate General for respondent /State in detail. Record of the case has been perused minutely.
It may be observed, at the outset, that a tentative assessment of the available record would show that the lady petitioner-accused has no case on merits. The learned counsel for the petitioner contends that the petitioner, alongwith his suckling baby, was travelling from Kohat to Rawalpindi with one of her relative namely, Muhammad Javed and that she had no knowledge, whatsoever that the said relative was carrying narcotics with him. According to the petitioner's counsel, entire quantity of opium was recovered from the possession of Muhammad Javed. However, the recovered quantity of opium was divided into two parts. One case was registered against the petitioner-lady for carrying 4000 grams (4 Kgs.) of opium vide F.I.R. No.43 whereas the other case for carrying 3100 grams of opium, was registered against Muhammad Javed vide F.I.R. No.40. The contention of the learned counsel for the lady accused has not impressed me at all. This factual controversy, pointed out by the learned counsel for the petitioner, can only be determined/decided after the recording of the prosecution evidence.
The second contention of the learned counsel for the petitioner that the petitioner is a woman, with a suckling child, and that her retention in the jail shall be detrimental to the health of the child and that, therefore, she may be released on bail under the 1st proviso to section 497, Cr.P.C. has force in it and I have no hesitation in agreeing with same.
Accordingly this petition for bail is accepted.
The petitioner shall be released forthwith, alongwith the suckling baby, if the baby is in the jail, provided she is not required in any other case, and furnishes bail bonds in the sum of Rs.1,00,000 (Rs. one lac only) with two sureties, each in the like amount, to the satisfaction. of .the Additional Registrar/Deputy Registrar of this Court.
The Additional Registrar/Deputy Registrar shall see that the sureties are respectable persons, are men of means having sufficient property in their names and hail from the settled areas of District Kohat. Attested copies of their property documents/identity cards shall be obtained from them and placed on record.

N.H.Q./464/P Bail allowed.

PCRLJ 2000 PESHAWAR HIGH COURT 196 #

2000 P Cr. L J 196

[Peshawar]

Before Malik Hamid Saeed; J

MUHAMMAD SIRAJ KHAN---Petitioner

versus

BACHA KHAN and 6 others---Respondents

Criminal Miscellaneous No. 133 of 1997, decided on 5th July, 1999.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 417---Penal Code (XLV of 1860), Ss.447, 427, 147 & 149--Quashing of acquittal order---Accused persons were charged on the complaint of the petitioner---Trial Court after framing of charge and recording of evidence acquitted the accused---Appeal under S.417, Cr.P.C. was filed before District Magistrate and the same was dismissed---Revision petition before the Lower Appellate Court was also dismissed---Validity---Trial Court had properly discussed the entire evidence available on record and had formed an opinion which could not be said to have been based on no reasons---No good ground for interference in the judgments/orders of the Courts below having been found, quashing of acquittal was declined.

Khalid Khan for Petitioner.

Syed Sardar Hussain for Respondents.

Date of hearing: 5th July, 1999.

JUDGMENT

This petition for quashment of the impugned orders, dated 9-4-1994 and 8-9-1997 of the learned Illaqa Qazi, C'?ar Bagh, Swat and learned Zilla Qazi, Malakand Camp Court at Swat, has beet: filed by Muhammad Siraj Khan, petitioner whereby he has questioned the order of acquittal recorded by the learned Courts below in respect of accused respondents Nos. l to 6 in case F. I. R. No. 13, dated 30-1-1990 under section 447/427/147/149, P.P.C.

Brief facts of the case are that the petitioner lodged a report against respondents Nos. l to 6 for damaging. various kinds of trees planted by the Watershed Department on his land known as . The accused respondents were put to trial in the Court of Illaqa Qazi, Khwaza Khela and were acquitted of the charge vide judgment, dated 9-4-1997. The petitioner filed a revision petition against their acquittal in the Court of Zilla Qazi, Malakand Camp Court, Swat, which was also dismissed by the learned Zilla Qazi vide his judgment/order.. dated 8-9-1997, hence the present petition for quashment of the impugned orders.

The learned counsel for the petitioner argued that the impugned judgment of the learned trial Court is not a judgment in the eyes of law for the reasons that no formal charge was framed against the accused-respondents in the case; that the statement of the complainant was recorded in absence of the accused-respondents and that while recording the order of acquittal, the learned trial Court did not advance any reasons for such acquittal. The arguments of the learned counsel for the petitioner are, however, misconceived. The accused respondents were formally charge-sheeted on 3-4-1994 as is evident from the order sheet of the same date. Similarly, the statement of the complainant was recorded on 2-4-1996 and there is available on file an application of the accused respondent Bacha Khan, wherein he requested for exemption from appearance in Court on 2-4-1996 and the said application was allowed by the learned trial Judge. The order sheet, dated 2-4-1996 reveals that Bacha Khan and Jehangir Khan, accused-respondents, were marked present through their counsel, whereas the other accused-respondents were present in person in the Court on the said date. It is also evident from the file that the petitioner filed an application on 23-4-1997 under section 417, Cr.P.C. before the District Magistrate, Swat which was dismissed on 11-6-1997 whereafter the petitioner filed revision petition before Zilla Qazi on 18-6-1997, hence the argument that the petitioner was having remedy of filing an appeal under section 417, Cr.P.C. and, therefore. the learned revisional Court should have returned the revision petition being not maintainable, is without any substance, rather the petitioner has concealed this fact from this Court. The learned trial Court has properly discussed the entire evidence available on record and has formed an opinion which cannot be said to have been based on no reasons.

In these circumstances, there is no good ground for interference in the impugned judgments/orders and the petition for quashment is liable to dismissal and I order accordingly.

Q.M.H./M.A.K./455/P Petition dismissed.

PCRLJ 2000 PESHAWAR HIGH COURT 216 #

2000 P Cr. L 1216

[Peshawar]

Before Mahbub Ali Khan, C.J. and Tariq Parvez, J

QUAID-E-AZAM---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 381 of 1997, 92 of 1997 and Criminal Revision No. 15 of 1998, decided on 18th March, 1999.

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

----S. 324/34---Appreciation of evidence---Statement of the injured witness, was consistent and was corroborated on every aspect of the case by other eye-Witnesses ---F.I.R. had been lodged within half an hour of the occurrence--Presence of eye-witnesses on the spot at the relevant time stood established--Injuries received by the complainant and the manner of occurrence given at the trial being fully in consonance with the site plan were further corroborated by the prolonged abscondence of the accused which had made the ocular testimony of the interested witnesses trustworthy---Conviction of accused was upheld in circumstances.

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

---S. 302/34---Appreciation of evidence---Fact deposed not challenged shall be presumed to be correct---Where a witness deposes about a particular fact and the same goes unchallenged, Courts are to presume that what has been stated by him is true and correct.

----S. 7---Criminal Procedure Code (V of 1898), S.439---Revisional jurisdiction of High Court barred---High Court has no jurisdiction to entertain a revision either against acquittal of accused or for enhancement of his sentence passed under the Suppression of Terrorist Activities (Special Courts) Act, 1975.

PLD 1996 SC 168; Abdul Khaliq v. State PLD 1990 Kar. 448 and Abdul Qadir and another v. The State 1998 PCr.LJ i26 ref.

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

----S. 324/34---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.7---Criminal Procedure Code (V of 1898), Ss.561-A & 439---Sentence, enhancement of---Order passed by Special Court under the Suppression of Terrorist Activities (Special Courts) Act, 1975, being not amenable to revisional jurisdiction of High Court, provisions; of 5.561-A, Cr.P.C. could be invoked by High Court in the interest of justice---Accused had made effective firing on the complainant causing more than one fire-arm injuries on different parts of his body---Revision filed by the complainant for enhancement of sentence was converted to a petition under S.561-A, Cr.P.C. and the sentence of three years' R.I. of accused was enhanced to seven years' R. I. in circumstances.

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

----S. 324/34---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.7---Criminal Procedure Code (V of 1898), Ss. 417(2-A) & 439--Revision against acquittal---Right of appeal. given to the aggrieved person against the order of acquittal under S.417(2-A), Cr.P.C. could not be extended to private persons in cases decided by the Special Court regarding a scheduled offence---No revision on the same analogy could be entertained against acquittal of accused because High Court under S.439, Cr.P.C. could exercise jurisdiction in respect of orders/judgments delivered by a Court subordinate to it, whereas the Special Court was not a Court subordinate to the High Court under the Suppression of Terrorist Activities (Special Courts) Act, 1975---Revision petition against acquittal of accused was accordingly dismissed for lack of jurisdiction.

Faiz Muhammad and others v. Mehrab Shah and others PLD 1997 Pesh. 166 ref.

Asghar Khan Kundi for Appellant. " Khalid Khan for the State. Mian Muhibullah Kakakhel for the Complainant.

Date of hearing: 14th January, 1999

JUDGMENT

TARIQ PARVEZ, J.--- Criminal Appeal No. 381 of 1997 has been filed by accused Quaid-e-Azam against his conviction and sentence awarded to him by learned Judge, Special Court, Karak vide judgment, dated 2-12-1997. On conviction, the appellant has been sentenced to three years' R.I. and to pay Rs.20,000 as compensation under section 544-A, Cr.P.C. in default of payment he is to suffer one year's S.I. Benefit of section 382-B,i Cr.P.C. has also been extended.

Guldar Khan, complainant of the case has filed Criminal Revision No.15 of 1998 and has prayed for the enhancement of the sentence awarded to the convict-appellant.

Criminal Appeal No.92 of 1998 was also filed by Guldar Khan complainant against Nawab Khan, acquitted co-accused but as no appeal could be filed against acquittal by the complainant, the same was converted to revision and has been given Criminal Revision No.33 of 1998 vide order, dated 20-5-1998 of this Court.

As all the three matters pertain to single judgment of Judge, Special Court, Karak, we intend to dispose them of together through this consolidated judgment.
Guldar Khan (P.W.6), while injured, made the report which was recorded by Faizullah M.H.C. It was stated in his report that he, Gul Saleem and Ghani-ur-Rehman P. Ws. were proceeding towards their houses when accused-appellant, Quaid-e-Azam, the acquitted accused Nawab and Baitullah (acquitted in earlier trial) who were duly armed with Topaks, appeared and started firing at the complainant party. With the fire shots of the appellant

Quaid-e-Azam and Nawab, Guldar was hit while the firing made by Baitullah proved to be ineffective.

The investigation was entrusted to Amir Nawab (P.W.9) who proceeded to the spot and prepared site plane (Exh.P.S.). He took into possession blood-stained earth from the place of injured complainant. He recovered 28 empties of 7.62 bore P.2, 3 empties of .303 bore P.3 through memo. Exh.P.B. Biood-stained garments, consisting of Shalwar P.4 with having corresponding cut marks sent by the doctor belonging to the victim, was taken into possession vide memo. Exh.P.B./l. As the accused were absconding, therefore, warrants and proclamation notices were obtained against them where after challan under section 512, Cr.P.C: was filed against the appellant and the acquitted accused.

The injured was sent for medical examination and treatment who was attended by Fida Muhammad, Medical Officer (P.W.10) and who vide his report Exh.P.M. found the following external injuries on the person of Guldar Khan complainant.

(1) Fire-arm entry wound left side thigh laterally with obvious fracture of the left thigh, size 1/4" x 1/4".

(2) Fire-arm exit wound left side thigh medially, size 1-1/2" x 1-1/2".

(3) Fire-arm entry wound left side thigh antero-laterally, size 1/4" x 1/4".

(4) Fire-arm exit wound left side thigh postern-laterally, six 1/2" x 1/2".

Advised X-Ray left thigh (A. P. and lateral view) and the patient was referred to surgeon D.H.Q. Hospital, Karak for further management.

Nature of injuries grievous

Duration of injuries 3 to 5 hours

After the close of the prosecution's case during which Guldar Khan complainant and Gul Saleem (P.W.7) furnished ocular account, the learned trial Judge, thereafter examined the accused and recorded their statements under section 342, Cr.P.C. After hearing the arguments of the sides, the trial Court came to the conclusion that the prosecution has successfully proved the charge against Quaid-e-Azam and accordingly convicted him whereas Nawab Khan respondent in Revision No.33 of 1998 was acquitted of the charge.

Learned counsel for the appellant Quaid-e-Azam, submitted that evidence furnished by Guldar Khan complainant and Gul Saleem is not trustworthy, not only that they are inimical towards the accused-appellant but that their testimony is inconsistent with the site plane and also with the medical evidence. It was argued that according to the site plane bulk of injuries have been received by the victim on his left side whereas according to the narration as given in the F.I.R. the injuries should have been on the front. It was argued that the occurrence took place in the Abadi of the village but none from the surrounding houses was examined by the prosecution, if not to depose and give ocular account, at least someone should have come forward to have accepted the presence of Gut Saleem eye-witness who, if present with the complainant could not have been spared and should have received some fire-arm injuries keeping in view the number of empties recovered from the spot. It was also argued that the same evidence has been disbelieved earlier in case of Baitullah acquitted accused and this time by acquitting Nawab Khan, hence, the propriety demands that the benefit of doubt, on the same ground, should have also been extended to Quaide-Azam. It was also contended that according to P.W.6 Guldar, the firing continued for half an hour which does not commensurate with the number of injuries and empties, recovered from the spot.
Laamed counsel appearing for the complainant and the learned counsel for the State argued that the accused stands charged in a promptly made F.I.R. That, he has been attributed specific role of effective firing on the complainant and so was reiterated by the two eye-witnesses at the trial. It was argued that the accused remained fugitive from law for about two years and has not tendered any plausible explanation which go a long way to prove his guilt. It was submitted that as far acquittal of Baitullah is concerned, he was not attributed the role of effective firing and was, therefore, given the benefit of doubt. For acquittal of Nawab Khan respondent in Criminal Revision No.33 of 1998, it was argued that Nawab Khan has wrongly been acquitted by the learned trial Court by misreading the direct evidence.
We would first take up the merits of the case with regard to appeal of Quaid-e-Azam. The appellant stands charged in the report made within 30 minutes of the occurrence. He was taken as injured to the police station and the presence of Gut Saleem his father (P.W.7) has been recorded in the first line of the F.I.R. which would lend support to the presence of Gut Saleem in the company of Guldar, complainant, even at the time of occurrence. Otherwise, within 30 minutes it would be but difficult to assume that Gut Saleem P.W. was procured from elsewhere.

The statement of Guldar who has received fire-arm injuries is consistent and has not been shaken in the lengthy cross-examination. He has elaborately given the sequence of firing and their effectiveness. He has also highlighted the motive for commission of the crime. In the cross-examination he has confirmed the facts as are appearing in the site plane, with regard to the place wherefrom he was fired at and the distance between the complainant and the assailants. He has categorically denied if his injuries were examined by the police before recording his report. In his cross-examination there is marked absence by making even a remote suggestion to him about the absence of Gut Saleem (P.W.7).

Gut Saleem though father of the complainant has on every aspect of the case corroborated the statement of P.W. Guldar Khan. In the cross-examination he has explained the so-called inconsistency of the ocular testimony with the medicai evidence by stating that on the receipt of first shot, fired by Nawab acquitted accused the complainant did not fall but bent down when in the meantime the second shot was fired. He has not been even suggested that at the time of occurrence he was not present in the company of his son. It is wellestablished through dictum of the superior Courts, that where a witness deposes C about a particular fact and the same goes unchallenged, the Courts are to presume that what has been stated by him was true and correct. In a case where the defence fails to shake the direct testimony of the witness and equally fails by suggesting to him that he was not present on the spot, would mean that the presence of such witness stood admitted.

As the report has been made within. 30 minutes and injured was accompanied by Gut Saleem P.W. while taken to the police station, we entertain p no doubt as to his presence on the scene of the crime. Therefore, we are of the firm view that the presence of the two witnesses stands established on the scene. What is next to be seen is, if their testimony is corroborated by independent evidence, The number of injuries received and the manner of occurrence given at the trial being fully in consonance with the site plan coupled with the prolong abscondence of Quaid -e-Azam who was arrested on 25-9-1995 is sufficient E corroboration as required on any standard to make the testimony of the interested witnesses trustworthy We, for the above given reason, find that there are no merits in this appeal and the same is dismissed.

Now taking up Criminal Revision No.15 of 1998, we cannot exercise revisional jurisdiction in view of PLD 1996 SC 168. At page 171 the august Supreme Court of Pakistan while quoting the case of Abdul Khaliq v. State PLD 1990 Kar. 448 has reproduced a para from the said judgment where it was observed that the Division Bench of the High Court hears the appeal under the Act but cannot pass order under revisional jurisdiction, This view of the Karachi High Court was upheld by the august Supreme Court. Similarly, this view was taken by a. Division Bench judgment from Quetta jurisdiction in case reported as Abdul Qadir and another v. The State 1998 PCr.LJ 126.

In view of case-law cited above, we have got no jurisdiction to entertain a revision either against acquittal or for enhancement of the sentence.

Having come to the conclusion that Special Court exercising jurisdiction under the Suppression of Terrorist Activities (Special Courts) Act is not amenable to revisional jurisdiction of this Court, but in the interest of justice this Court can, while relying on Rashid Ahmad v. State PLD 1996 SC 168 has got the power to make an order in terms of section 561-A, Cr.P:C. which is applicable to prevent the abuse of the process of any Court and also for otherwise to secure the ends of justice.

As Court of appeal under section 7 of the Suppression of Terrorists Activities (Special Courts) Act, 1975, this Court is not exercising powers under the Criminal Procedure Code but under the special law.

We are not satisfied with the sentence awarded to the appellant in this case. He was charged for effectively firing at the victim who has received more H than one fire-arm injuries on different parts of his body, hence, the conviction should have been firstly under section 324, P.P.C., Part I and secondly for the nature of injuries caused to the victim.

As no separate charge has been framed for nature of injuries, we would not, at this stage, convict him for such injuries but in order to meet the ends of justice, are inclined to enhance the sentence.

Therefore, while invoking the provision of section 561-A, Cr.P.C. we will convert Criminal Revision No. 15 of 1998 to a petition under section 561-A, Cr.P.C. The sentence of three years' imprisonment is enhanced to seven years under section 324/34, P.P.C. The compensation amount and the period in default thereof as well as benefit of section 382-B, Cr.P.C. are left intact.

As for revision against acquittal of Nawab Khan filed by Guldar Khan complainant, the right of appeal challenging acquittal order passed by Judge, Special Court, came under consideration before a Division Bench of this Court in case of Faiz Muhammad and others v. Mehrab Shah and others PLD 1997 Pesh. 166. In a very elaborately delivered judgment it was held, that the Legislature by amending section 417, Cr.P.C. where subsection (2-A) was added has given right of appeal to the aggrieved person against the order of acquittal but such right cannot be extended to private persons in case where trial was held by the Judge, Special Court of a schedule offence. On the same analogy no revision can be entertained against acquittal because this Court under section 439, Cr.P.C. would exercise jurisdiction in respect of orders/judgments delivered by a Court subordinate to it whereas a Judge, Special Court, as discussed earlier, is not a Court subordinate to the High Court under the Suppression of Terrorists Activities (Special Courts) Act, 1975. This revision is, therefore, dismissed for lack of jurisdiction.

In view of dismissal of Criminal Appeal No.381 of 1997, dismissal of Criminal Revision No.33 of 1998 and as we have converted Criminal Revision No.15 of 1998 to a. petition under section 561-A, Cr.P.C. the conviction and sentence of appellant, Quaid-e-Azam, is enhanced to seven years imprisonment under section 324/34, P.P.C. The compensation amount and the period in default thereof as well as benefit of section 382-B, Cr.P.C. shall remain intact.

N.H.Q./465/P

Order accordingly.

PCRLJ 2000 PESHAWAR HIGH COURT 248 #

2000 P Cr. L J 248

[Peshawar]

Before Jawaid Nawaz Khan Gandapur, J

ISSA KHAN WELFARE TRUST---Appellant

Versus

SUPERINTENDENT, CENTRAL JAIL, PESHAWAR---Respondent

Habeas Corpus Petition No.36 of 1999, decided on 16th September, 1999

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition ---Detenu had been in the judicial lock-up for more than one year---Detention was made on the request of another Provincial Authority where the detenu was required in a criminal case---No justification was given to the High Court for not shifting the detenu to the other Province---Counsel for the State had conceded that petition might be accepted and detenu be shifted to the other Province---State was directed to shift the detenu accordingly.

Muhammad Isa Khan for Petitioner. Kh. Azhar Rashid, Asstt. A.-G. for Respondents Nos. l to 3.

ORDER

As prayed for by the learned counsel for the petitioner the name of respondent No.4 (Government of Pakistan through Secretary Interior, Islamabad) stands deleted.

Mr. Muhammad Isa Khan, Advocate learned counsel for the petitioner and Kh. Azhar Rashid, learned Assistant Advocate-General for respondents Nos. l to 3 are present and heard.
According to the learned counsel for the petitioner the detenu, Jasveer Singh (Abdur Rehman), is confined in the Central Jail, Peshawar allegedly in compliance with the warrants of arrest issued by the Judicial Magistrate, 1st Class (Court No.IV) Karachi (East) in case registered at Police Station, Korangi, Karachi, vide: F.I.R. No.839 of 1994 under section 302, P.P.C. and is rotting in the Jail to be transferred to Karachi.
The Superintendent, Central Jail Peshawar, Saadullah Khan, respondent No.l who is present in person, submits that the detenu has been detained by him in compliance with the warrants of arrest, issued by the Judicial Magistrate Karachi (East) although he is not required in any other case herein Peshawar/N.-W.F.P. He states that it was for this reason that Immediate Letter No.7685/WE was addressed by him to the InspectorGeneral Prisons, N.-W.F.P., Peshawar, respondent No.2, on 27-10-1998 requesting him to sanction the shifting of the detenu from Peshawar to Karachi Jail. The said letter is reproduced for the sake of convenience:--

OFFICE OF THE SUPERINTENDENT, CENTRAL PRISON, PESHAWAR

No.7685/WE, dated 27-10-1998

Immediate

The Inspector-General (Prisons), N.-W.F.P., Peshawar.

Subject: Transfer of accused Jasveer Singh son of Garieet Singh resident of House No 104 Kala Pul Naval Colony Karachi in case F.I.R.

No.839 of 1994 under section 302, Q.D.O. of Police Station Korangi, Karachi (Sindh).

Memo

I have the honour to inform you that the subject prisoner is no more required in any other case of this Province and is required to be shifted to Karachi in the subject case.

It is, therefore, requested that the sanction for shifting of the accused to Karachi Jail from this jail may kindly be accorded and conveyed. His transfer roll is enclosed please."

(Sd.) Superintendent, Central Prison; Peshawar.

The Inspector-General Prisons, N.-W.F.P. Peshawar, respondent No.2, then addressed Letter No.l/34-J-98/17294/WE on 10-11-1998 to the Secretary to Government of N.-W.F.P., Home and Tribal Affairs Department, Peshawar, respondent No.3, regarding the transfer of detenu namely, Jasveer Singh son of Garjeet (Muslim name Abdur Rehman) from Central Prison, Peshawar to Central Prison Karachi. This letter is to the following effect:--

"OFFICE OF THE INSPECTOR-GENERAL

OF PRISONS, N.-W.F.P. PESHAWAR.

Tele No.9210937/9310334

No.l/34-J-98/17294/WE, dated 10-11-1998.

The Secretary to Government of N.-W.F.P., Home and T.A. Department, Peshawar.

Subject: Transfer of accused Jasveeer Singh son of Garjeet Singh resident of House No. 104, Kala Pul, Naval Colony Karachi in case F.I.R. No.839 of 1994 under section 302, O.D.O. of Police Station Korangi, Karachi (Sindh).

Memo.

The Superintendent, Central Prison, Peshawar has intimated that accused Jasveer Singh son of Garjeet Singh is required to face trial in the Court of Judicial Magistrate-IV, Karachi East, in the case cited as subject. As the said prisoner is not required in any other case here, therefore, the said officer has requested for his transfer from Central Prison Peshawar to Central Prison Karachi.

In view of the above. it is requested that necessary sanction to the transfer of accused Jasveer Singh son of Garjeet Singh from Central Prison Peshawar to Central Prison Karachi, for facing trail there may please he accorded. Descriptive roll is enclosed.

(Sd.) Inspector-General of Prison

N.-W.F.P.. Peshawar.

Endst: No. 17295

Copy of the above is forwarded to the Superintendent, Central Prison Peshawar, for information with reference to his Memo. No.7685/WE, dated 27-10-1998.

(Sd.) Inspector Central of Prison

N.-W. F. P., Peshawar."

Accordingly Letter, No. SO(Judl.)/HD/10/238/98, dated 17-11-1998, was addressed to the Secretary to Government of Sindh, Home Department, Karachi for necessary action and the copies of the same were endorsed to (1) The Inspector-General (Prisons) N.-W.F.P. Peshawar and (2) The Superintendent, Central Jail. Peshawar. The letter in question is as under:--

"GOVERNMENT OF N.-W.F.P. HOME

AND T.As. DEPARTMENT

No.SO(Judl. )HD/ 10/238/98

Dated Peshawar 17th November, 1998

The Secretary.

to Government of Sindh.

Home Department, Karachi.

Subject: Transfer of accused Jasveer Singh son of Garieet Singh resident of House No. 104, Kala Pul, Naval Colony Karachi, in case F.I.R. No.839 of 1994 under section 302, O.D.O. Police Station Korangi= Karachi (Sindh).

Sir, I am directed to refer to the subject noted above and to forwarded herewith a photo copy of Letter No.134-J-98/17294/WE, dated 11-10-1998 alongwith its enclosures received from the Inspector General of Prisons, N.-W.F.P., Peshawar.

You are requested to take necessary action under the law.

Your obedient servant, (Sd.) Shairullah Khan, Section Officer (Judl.)

Endst. of Even No. and date.

Copy forwarded to:-

(1) The Inspector-General of Prisons, N.-W.F.P. Peshawar for information with reference to his letter referred to above.

(2) The Superintendent, Central Prisons, Peshawar.

(Sd.) Shairullah Khan, Section Officer (Judl.)"

It appears that in spite of the reminders sent to the Home Secretary, Government of Sindh, Karachi no response has been received so far. The latest Reminder No.SO(JUDL)/HD/10-238/99 was sent to the Sindh Government (Home Department) on 8-9-1999 but with no result.
The record of the Inspector-General Prisons Office, produced by Mr. Changaiz Khan, Assistant perused carefully. Photostat copies of pages Nos. 185, 193, 199 and 535 obtained and placed on this file for record.
According to the learned counsel for the petitioner he has approached this Court with the hope that his grievance shall be redressed and that the detenu shall either:--

(a) be shifted to Karachi Jail immediately or

(b) be granted transitory bail to enable him to appear before Judicial Magistrate, Court No.IV, Karachi East for further necessary action.

According to him the detenu is in the Jail for the last more than one year without any reason or justification, that in point of fact he has been detained illegally and is in the illegal confinement of respondent No.1, Superintendent, Central Prison, Peshawar.
Confronted with the above situation the learned Assistant Advocate General had no explanation to offer as to why the detenu, Jasveer Singh (Muslim name Abdur Rehman) has been detained here and not sent to Karachi Jail. He, however, conceded frankly and rightly so that this petition be accepted and the respondents be directed to shift the detenu to Karachi. He also posed a question to the Superintendent, Central Jail, Peshawar (respondent No. l) and the representative of the Home Secretary (respondent No.3) that if the Home Department of the Sindh Government does not respond for 3 years then in that case could the detenu be detained for such a long time.
In the circumstances, this petition is accepted and the learned Assistant Advocater General (Kh. Azhar Rashid) is directed to take up the matter with respondents Nos. l to 3 immediately and to make sure the detenu namely, Jasveer Singh (Muslim name Abdur Rehman) is shifted to Karachi within 15 days positively i.e., on or before October 2, 1999 failing which the detenu shall stand admitted to bail (transitory) with the directions to appear in the Karachi Court for further necessary action within a period of one month from the date he is released form Peshawar Prison. As soon as the detenu furnishes bail bonds in the sum of Rs.1,00,000 (Rs.One lac) with two sureties, each in the like amount, to the satisfaction of the Registrar of this Court, he shall be released from Jail by respondent No. 1.
The Registrar shall see that the sureties are respectable persons, are men of means having sufficient property in their names and hail from the settled areas of District Peshawar/Karachi. Attested copies of their property documents/Identity cards shall be obtained and placed on file for record.
It may be made clear that the detenu when released on transitory bail, fails to appear before the Judicial Magistrate, 1st Class (Court No.IV) Karachi East, within one month, transitory bail granted to him shall stand recalled.
Copy of this order be sent, through T.C.S., to:-

(1) The Secretary to the Chief Minister, Government of N.-W.F.P., Peshawar.

(2) The Secretary to the Chief Minister, Government of Sindh, Karachi.

(3) The Secretary to His Lordship the Chief Justice, Sindh High Court, Karachi.

Q.M.H./M.A.K.,'459/P Order accordingly.

PCRLJ 2000 PESHAWAR HIGH COURT 297 #

2000 P Cr. L J 297

[Peshawar]

Before Sardar Muhammad Raza Khan, J

IKRAM and 6 others---Petitioners

versus

S.D.M., TAMERGARA, DISTRICT DIR and another---Respondents

Criminal Miscellaneous No. 1 of 1998, decided on 25th June, 1999

Penal Code (XLV of 1860)---

----S. 188---Criminal Procedure Code (V of 1898), S.561-A---Quashing of proceedings---Order under S.144, Cr.P.C. having been passed by the Sub-Divisional Magistrate, cognizance could only be taken on the complaint in writing made either by the Sub-Divisional Magistrate or by a higher officer to whom he was subordinate, as required by S. 195 (1)(a), Cr. P. C. ---F. 1. R. in the case had been lodged by the Tehsildar who was rather subordinate to the said Magistrate---Proceedings initiated on the aforesaid F.I.R. were, therefore, void ab initio and the same were quashed accordingly.

Muhammad Waris Khan for Petitioners.

Asaadullah Khan Marwat, A.A. -G. for Respondents.

Date of hearing: 25th June,. 1999.

JUDGMENT

Ikram son of Arshuilah -and six others of Village Bakandi, Police Station Ouch, District Dir, through this petition under section 561-A, Cr.P.C. seek the quashment of F.I.R. No. 412, dated 6-11-1997, of Police Station Ouch, registered against them under section 188, P.P.C. on the ground that they had violated the orders of Sub-Divisinal Magistrate passed under section 144, Cr.P.C. prohibiting them not to plough certain fields.

Whether the order passed by the Sub-Divisional Magistrate under section 144, Cr.P.C. was a lawfully promulgated order, being besides the point; a case under section 188, P.P.C. is a complaint case and no Court, under section 195(1)(a) of the Cr.P.C. is competent to take cognizance of the offence unless a complaint in writing is made by the public servant concerned or by some other public servant to whom he is subordinate.
In the instant case the order under section 144, Cr.P.C. is passed by the Sub-Divisional Magistrate and hence the cognizance could only be taken when the complaint in writing had either been made by the Sub-Divisional Magistrate or by the higher officer to whom he was subordinate; whereas, the instant F.I.R. is lodged by Subhanullah, Tehsildar, who is rather subordinate to the officer concerned.
The proceedings as initiated vide F.I.R. No. 412, dated 6-11-1997, of Police Station Ouch are void ab initio and are hereby quashed.

N.H.Q./466/P Proceedings quashed.

PCRLJ 2000 PESHAWAR HIGH COURT 320 #

2000 P Cr. L J 320

[Peshawar]

Before Mian Shakirullah Jan arid Talat Qayum Qureshi, JJ

Mst. MALKA JAN---Petitioner

versus

INSPECTOR-GENERAL OF POLICE, N.-W.F.P. PESHAWAR and 2 others---Respondents

Writ Petition No. 137 of 1997, decided on 19th August, 1999.

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

----Ss. 154 & 155---First information report---Registration of criminal case--Duty of incharge of police station---Scope---Requirement of law is that Police Officer has to record F.I.R. mandatorily of a cognizable case under S.154, Cr.P.C., but where it is a non-cognizable case then substance of such information is to be entered in the relevant register but in each case refusal to register case is out of question ---Incharge of police station is duty bound and it is a statutory .obligation of such Officer that on receipt of information whether orally or. in writing he has to record the same in the book prescribed for such purpose and no option or discretion is left with the Officer in that regard.

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

----Ss. 154 & 200--Constitution of Pakistan (1973), Art. 199---Constitutional petition---Registration of F.I.R.---Alternate remedy of filing a private complaint---Not availed---Effect---Exercise of Constitutional powers of High Court---Scope---Availability of such an alternate -remedy would not take away the discretion of High Court and deter the Court from giving directions to the police to record F.I.R. in an appropriate case---High Court exercised such discretionary powers in good faith having regard to all relevant considerations, justly, fairly and reasonably.

Allan Khan v. S.H.O., Police Station Mouladad 1999 PCr.LJ 781; Jamsheed Ahmed v. Muhammad Akram and another 1975 SCMR 149; Haji Muhammad Khan v. Ch. Khizar Hayat and 3 others PLD 1977 Lah. 424; Wazir Ahmad v. S.H.O., Police Station Mahboob Kalhoro and others 1990 PCr.LJ 2006 and Altaf Hussain v. Government of Sindh through the Secretary, Government of Sindh, Karachi and another PLD 1997 Kar. 600 ref.

----S. 154---Registration of second F.I.R.---Two versions of an occurrence--Effect---Where a distinct and separate cognizable offence was disclosed and no effective inquiry or trial could be held without properly appreciating and considering the two versions, another F.I.R. was to be registered.

Akram Ali Shah v. S.H.O., Police Station and 2 others PLJ 1976 Cr.C. (Lah.) 53; Abdul Ghani v. S.H.O., Police Station Saddar NLR 1982 Cr. 296; Haleem Sarwar v. S.H.O., Police Station Head Marala and 2 others PLJ 1984 Cr.C. (Lah.) 369; Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119; Muhammad Anwar, Sub-Inspector, Railways Police, Lahore v. S.H.O., Railways Police, Kasur and 2 others PLD 1999 Lah. 50 and Jamshed Khan and another v. Government of Sindh and others 1999 PCr.LJ 512 ref.

(d) Constitution of Pakistan (1973)---

----Arts. 4 & 9---Persons are to be dealt with in accordance with law---Police was not possessed of right to murder or kill or take life of any citizen accused of any offence only for the reason that such person was involved in criminal cases and kept a previous bad record---Person keeping bad record could be innocent in the case registered against him, because under the law presumption of innocence would continue until he was proved guilty---Where the police machinery takes law in its hands it is to be dealt with in the same manner as the ordinary citizens are dealt with---Nobody could be allowed to take law into his hands and it was the duty of the Courts to curb the highhandedness sternly.

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

----S154---Constitution of Pakistan (1973), Art.199---Constitutional petition---Registration of second F.I.R..---Two versions of one occurrence--Son of the petitioner was murdered by the police and the occurrence was shown as police encounter ---F.I.R. was registered on the version of police, whereas the version given by the petitioner was totally on different premises---Police did not register a separate F.I.R. on the version of the petitioner---Validity---Correctness of any version could not be ascertained unless the case of the petitioner was registered, both the cases were investigated together and thereafter, report or reports were submitted by the Investigating Agency---Where both the versions were not placed before the Court, no proper adjudication of the respective contentions could be made to submit challan in one case and to ignore the version given in other case--Such course was not at all conducive to the interest of justice---Police was directed by High Court- to register F.I.R. on the information given by the, petitioner.

Muhammad Aslam Uns for Petitioner.

A.A. -G. for the State.

Date of hearing: 23rd June, 1999.

JUDGMENT

TALAT QAYUM QURESHI, J.--- Brief facts given in the writ petition in hand are that on report of one Waris Khan son of Muhammad Rafique who is real brother of Muhammad Muzaffar Khan, Inspector of local police, a case under section 11/16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against Muhammad Akhtar on 8-8-1996 vide F.I.R. No.6 in Police Station Abbottabad alleging therein that Muhammad Akhtar had abducted Mst. Saiqa, his niece and daughter of Muhammad Muzaffar Khan. Mst. Saiqa Bibi, the alleged abductee, being sui juris contracted marriage of her own free-will with Muhammad Akhtar on 12-8-1996 and the spouses started living together with complete harmony in Village Sheikhul Bandi, District Abbottabad. This marriage had been contracted by Mst. Saiqa Bibi independent of her parents. They were not consulted prior to solemnization of the said marriage nor their consent was obtained thereafter, which nourished grudge against Muhammad Akhtar. The father of Mst. Saiqa Bibi, namely, Muhammad Muzaffar K)ian, Inspector Police, N.-W.F.P. who was inimical towards Muhammad Akhtar deceased for having abducted his daughter and solemnized marriage with her without his consent was in chase to take revenge- from him. He managed to get Muhammad Akhtar killed, conspired with Head Constable, Iqrar and Muhammad Arif F.C. who in pre-planned manner after due deliberation on 14-3-1997 while Muhammad Akhtar deceased was going to offer Jumma Prayers and had hardly reached near mosque, Muhammad lqrar, Head Constable opened fire at him which hit him and as a result of which he died on the spot. Muhammad Arif F.C. was also firing in the air to keep the people away. Later on, this incident was given the name of Police Muqabala and a case vide F.I.R. No.307 was also registered on 14-3-1997 in Police Station Cantt. Abbottabad and in this way it was endeavoured to put a veil on the police action to save the skin of police officials and avoid possible reaction. from general public. The matter did not end there, the police party after murdering Muhammad Akhtar deceased went to his house, violated the privacy and took away the jewellery and other articles from the house.

The petitioner who is aged mother of deceased Muhammad Akhtar as well as both his wives voiced against highhandedness of police, approached many times to concerned authorities to register a case against those who had killed the deceased but to no avail, hence they sought the help of local press through which they made the high-ups known of the extra judicial killing by the police officials. They also made sympathetic appeal to the worthy Chief Minister, N.-W.F.P. of judicial inquiry into the gruesome murder of deceased and also beseeched that the police was after them and their lives were in eminent danger but no action was taken by the authorities which necessitated in filing the present writ petition seeking the direction of this Court in the name of S.H.O., Police Station Cantt. Abbottabad to register a case against the culprits.
Mr. Muhammad Aslam Uns, Advocate, the learned counsel for the petitioner argued that fundamental rights as .envisaged in Article 25 of the Constitution, to be treated in accordance with law or to be entitled to equal protection of law, have been violated by respondents. It is the duty of the Officer-in-Charge of Police Station to register a case on receipt of information that a cognizable offence has been committed. The S.H.O., Police Station Cantt. Abbottabad, respondent No.2 failed to discharge his duty in accordance with law. He further argued that the petitioner not only approached respondent No.2 many a times to register a case for the murder of her son but approached respondent No. 1, the worthy Chief Minister and other high-ups through the help of press but no action was taken on her request. After the publication of news in all the local newspapers, the concerned authorities were well-aware of the incident but they failed to act in accordance with law. He placed reliance on Mst. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119 and Saleem Sarwar v. S.H.O., Police Station Head Marala and 2 others 1984 PCr.LJ 2993 and prayed that direction be issued to register a case against the real culprits.
Qazi Muhammad Ghazanfar, A.A.-G. firmly resisted the writ petition. He argued that the petitioner had adequate remedy in form of private complaint available to her which she did not avail. If the police authorities did not register a case on her request she could easily file a private complaint in the competent Court of law. He further argued that after the occurrence the petitioner kept mum for about a month and thereafter, raised hue and cry in the press. He stated that the press clippings annexed with the writ petition are not admissible. Neither any report in writing was submitted to the S.H.O. concerned nor she ever approached him for registration of the case. The deceased Muhammad Akhtar was not a law abiding citizen but was a proclaimed offender. He was involved in case F.I.R. No.56 registered on 8-8-1996 under section 11/16 of Zina Ordinance, F.I.R. No.322, dated 7-8-1994 under section 11/16/5/10, Zina Ordinance in Police Station Havelian and F.I.R. No.51, dated 14-2-1995 under section 452/506/34, P.P.C., in Police Station Nawanshehr and his history sheet

No. 18/A.P.O. has also been opened. On the day of occurrence he alongwith his co-accused Sohrab, proclaimed offender, and Arshad fired at the police party headed by Muhammad Iqrar of Police Station Cantt. in Village Sheikhul Bandi. The police party in their defence also opened fire with the result Muhammad Akhtar sustained injuries and died on the spot while his co-accused succeeded in decamping from the spot. After his death one rifle .222 bore, two pistols .30 bore, dagger, 7 magazine and 110 cartridges were found lying near his dead body and were secured by the police. The deceased died in an encounter with police and Muhammad Zaffar Khan, Inspector who was posted as Traffic Inspector at Mansehra had no concern with such police encounter. He further, argued that F.I.R. No.307 has already been registered on 14-3-1997 under sections 324/353/224/34, P.P.C. and 13, A.O. and second F.I.R. regarding the same incident cannot be registered.

We have heard the learned counsel for the parties at length.
In order to set the criminal law into motion two modes have been provided in the Criminal Procedure Code; one by way of lodging of report with the police under section 154, Cr.P.C. in respect of commission of cognizable offence and the other by filing of -a complaint before a Magistrate as provided by section 190 of the Code of Criminal Procedure.
Section 154 of the Code of Criminal Procedure provides that substance of every information relating to the commission of a cognizable offence if given to an Officer Incharge of a Police Station shall be entered in a book to be kept by such Officer in such form as the Provincial Government may prescribe in this behalf.

So far as non-cognizable offence is concerned, section 155, Cr.P.C. provides that substance of such information shall be entered in a book to be kept for such purpose and informant is to be referred to the Magistrate. It is further provided that no Police Officer shall investigate in non-cognizable case without order of the Magistrate having power to try such case. After receiving such order from Magistrate, Police Officer can investigate the case and may exercise powers in the same way as in cognizable case.

Section 156, Cr.P.C. empowers the Incharge of a police station to investigate cognizable cases whereas section 157, Cr.P.C. lays down that on receiving information with regard to commission of a cognizable offence which a Police Officer is competent to investigate, report is to be sent immediately to Magistrate empowered in that behalf and to take necessary steps for discovery and arrest of offender. If the Officer Incharge of police station under proviso "b" to section 157(1) and subsection (2) to section 157, Cr.P.C. is of the view that there is no sufficient ground to conduct the investigation, he after recording reasons to that effect in the report, can decline to investigate but it is mandatory for him to notify the information about the fact that he would not investigate the case or that the same will not be investigated. Section 159, Cr.P.C. lays down that on receipt of such a report by Magistrate under section 157, Cr.P.C., he may determine either not to proceed further or he may take cognizance of the offence as provided under section 190(1)(b), Cr.P.C. or under section 203, Cr.P.C. Similarly, section 169, Cr.P.C. empowers the Incharge of a police station to release the caused in deficient evidence on his own bond or with or without sureties for his appearance whenever he is required. Section 170(1), Cr.P.C. provides that-upon investigation if there is sufficient evidence the Incharge of police station would forward the accused to Magistrate. Section 173, Cr.P.C. envisages that Incharge of police station is required to submit a final report after the completion of investigation containing the complete result of investigation conducted in the case and action taken in respect of information before the: Magistrate, competent to take cognizance in the case.

The perusal of the abovementioned sections of law clearly shows that the requirement of law is that Police Officer has to record the F.I.R. mandatorily of a cognizable case under section 154, Cr.P.C. but if it is a non-cognizable case then substance of such information is to be entered in the relevant register but in each case the refusal is out of question. The Incharge of a police station is duty bound and it is his statutory obligation that on receipt of information whether orally or in writing he has to record the same in the book prescribed for that purpose and no option or discretion is left with him in this regard.
On receipt of a complaint the Magistrate, as provided by section 190 of Code of Criminal Procedure, may take cognizance of an offence. The Magistrate is empowered to take the cognizance of the offence under section 200, Cr.P.C. On filing of complaint in Court, he shall at once examine the complainant on oath and the substance of the examination shall be reduced to writing. Section 202, Cr.P.C. further empowers such Magistrate to postpone the issue of process for compelling the attendance of person complained against and to either inquire into the case himself or to direct an inquiry or investigation to be made by any Justice of Peace or Police Officer or by such other persons as he thinks fit for the purpose for ascertaining the truth or falsehood of the complaint.

10 No doubt the abovementioned remedies are parallel and remedy by way of private complaint is equally effective, practical and adequate remedy as has been held in the following cases:--

(1) Allan Khan v. S.H.O., Police Station Mouladad 1999 PCr.LJ 781

"High Court in exercise of its jurisdiction under Article 199 of the Constitution is not obliged to issue direction for registration of FIR in each case. Issuance of such a direction, however, would depend on the facts and circumstances of each case as to whether such direction shall be issued to meet the ends of justice or availability of an alternate remedy by way of filing a direct complaint would be considered as adequate and proper remedy for declining such relief."

(2). Jamsheed Ahmed v. Muhammad At= and another 1975 SCMR 149.

"The petition could be thrown out on the short ground that the High Court was under no obligation to grant the relief prayed for by the petitioner. It was a matter entirely of its discretion and there is nothing to indicate that it was improperly exercised. Even otherwise, by no means does the impugned order shut the door on the petitioner who is at liberty to initiate criminal proceedings by lodging a complaint."

(3) Haji Muhammad Khan v. Ch. Khizar Hayat and 3 others PLD 197_7 Lah. 424.

"The principle of law that has been enunciated in the Intra-Court Appeal No.31 of 1976 is, however, unexceptionable. The exercise of power under Article 199 of the Constitution is subject to the condition that there is no adequate remedy provided by law. Such an adequate remedy is provided to a complainant under section 190 read with sections 200 to 203, Cr.P.C. Section 190 provides that a Magistrate may take cognizance upon receiving a complaint of facts which constitutes such offence. The procedure for dealing with such complaints is provided in sections 200 to 203, Cr.P.C. There may be cases where the evidence to prove the commission of an offence cannot be collected except through the police agency. Similarly there may be cases where the entire evidence to prove the commission of such offence, is with the complainant. In the second category of cases it cannot be doubted that the complaint before the Magistrate is an adequate remedy. In such cases the High Court refuses to exercise writ jurisdiction, under Article 199 of the Constitution. The advisability of exercising, a discretion in favour of petitioner can be considered only in a case where the evidence can be collected through the agency of the police."

(4) Wazir Ahmad v. S.H.O., Police Station Mahboob Kalhoro and others 1990 PCr.LJ 2006.

"The relief under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, being discretionary relief, the writ cannot be issued as of right or in routine. In order to seek a relief of, this nature, a petitioner must come to Court with clean hands and if he is found to have suppressed a material fact such relief should be refused."

(5) Altaf Hussain v. Government of Sindh through Home Secretary, Government of Sindh, Karachi . and another PLD 1997 Kar. 600.

"The cases referred to by us in this judgment, therefore, leave no doubt that whenever an adequate remedy in the form of a private complaint is available to the petitioner, relief sought by him in the petition may be declined to him. In the present case, the petitioner could have filed a private complaint before the Court having jurisdiction in the matter in case the complaint sent by him to the police was not registered or he was dissatisfied with the investigation of the case, carried out by the former. Apart from the foregoing, when information is received by a Police Officer Incharge of a Police Station regarding commission of a cognizable offence, the allegations must be found by ~ him to be prima facie correct before an F.I.R. is registered. But where allegations are made, which, without making an elaborate investigation into them, are found hard to believe, provisions of section 154, Cr.P.C. may not be attracted in such case. Therefore, the question, whether discretion must be exercised in favour of a party, in a even case, and direction must be given to a Police Officer to register an F.I.R. would depend upon the circumstances of each case. So far as the contention that alternate remedy must equally be an efficacious remedy is concerned, suffice it to say that, a private complaint can provide an equally adequate relief to the complaint, because he can lead the entire evidence himself before the Court. It would, therefore, be erroneous to assume that grievance of the petitioner cannot be adequately redressed by filing of a private complaint. We are, therefore, clearly of the view that the directions sought by the petitioner in the present case need not be given by us to the respondents. "

The only fact that the aggrieved party has an alternate remedy of filing a private complaint would not take away the discretion of this and deter the Court from giving directions to the police to record an F.I.R. in an appropriate case. According to the principles laid down by superior Courts the discretionary powers must be exercised in good faith having regard to all relevant considerations and it should be exercised justly, fairly and reasonably.
It was argued by the learned A.A.-G. that since F.I.R. No-.307 has already been registered on 14-3-1997 under sections 324/353/224/34, P.P.C. and 13, A.O., second F.I.R. regarding the same incident cannot be registered. Before examining this point, with reference to the facts and circumstances of this case, it will be proper to discuss and examine some relevant cases on the subject. In case Akram Ali Shah v. S.H.O., Police Station and 2 others PLJ 1976 Cr.C. (Lahore) 53 it was held:--

"It cannot be laid down as a proposition of the law that if one F.I.R. pertaining to a criminal occurrence has been registered then another F.I.R. containing the counter-version of the same occurrence cannot or not be registered."

Similarly, a Division Bench of Lahore High Court in case Abdul Ghani v. S.H.O. Police Station, Saddar 1983 PCr.LJ 2172 held, I am of the view that in attending circumstances of the case in hand, the respondent S.H.O. is under a statutory duty to reduce into writing the information given to him by the petitioner of commission of a cognizable offence as provided by section 154, cf. P. C.

Likewise in case Haleem Sarwar v. S.H.O., Police Station Head Marala and 2 others-1984 PCr.LJ 2993 it was held, "On a review of the case-law reproduced above, and the facts of the case as emerged from the record, the petitioner has a clear grievance against the police. If as alleged, the matter was reported to the police first in point of time and the substance of information disclosed commission of a cognizable offence, then the S.H.O. could not refuse to register a formal F.I.R. for it was his duty to record the information and proceed to investigate the matter as provided in section 154, Cr.P.C. Even if an F.I.R. has been registered on the basis of one-sided version, registration of a second F.I.R. showing a different grievance could not be refused by the Police Officer in proper performance of his legal duty under section 154, Cr.P.C."

Similarly, in another case titled Mrs. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119 it was observed, "Turning now, to the facts of the present case, there is no controversy in respect of the fact that two reports in respect of the said occurrence have already been registered by the police and in the second report registered at the instance of Asghar Ali, the servant of the first petitioner, Police Officers have been charged with murder of Mir Murtaza Bhutto. No doubt, as has been pointed out by the learned counsel for the respondents, section 154 of the Criminal Procedure Code postulates registration of only one F.I.R. in respect of an offence and in any case an F.I.R. including commission of Qatl-e-Amd has already been registered at the instance of said servant of the first petitioner. Even the F.I.R. registered at the instance of Station House Officer, Haq Nawaz Sial, according to the respondents' counsel, was sufficient to see the criminal law into motion. Therefore, is registration of a third F.I.R. warranted under the law? The circumstances of the present case, however, indicate that while the first F.I.R. was registered at the instance of a Police Officer who was suspected of being an accused himself in the case by the petitioners, the second F.I.R. were registered at the instance of Asghar Ali, the private servant of petitioner No.1, after four days of the occurrence when he was still in the custody of the Police. Therefore, the' contention of the petitioners that the two F.I.Rs. registered by the police do not reflect the true facts of the case, does not appear to be unreasonable. It is also pertinent to point out that the petitioners wanted to name certain Police Officers as some of the culprits, who, according to the petitioners, had participated in the said crime and a definite role has been attributed to them in the proposed F.I.R. Therefore, a prima facie case appears to have been made out against the said persons for the purpose of recording an F.I.R. However, some other Police Officers have been named as suspects but no definite role has been attributed to them by the petitioners. Therefore, the petitioners have failed to satisfy the conscience of the Court so far as the said Police Officers are concerned. We are, therefore, firmly of the view that circumstances of the present case are distinguishable from those of the cases earlier decided by this Court, reference to which is made in this judgment."

Yet in another case Muhammad Anwar, Sub-Inspector, Railways Police, Lahore v. S.H.O. Railways Police, Kasur and 2 others PLD 1999 Lah. 50 it was held, "The crux of the matter which boils down after going through all the cited cases is that if counter-version is merely restricted to a defence version, the second version or a different version of incident, second F.I.R. cannot be recorded. But if a distinct and separate cognizable offence is disclosed and no effective inquiry or trial can be held without properly appreciating and considering the two versions, then another F.I.R. is to be recorded. I am, therefore, of the view that the respondents have illegally refused to register the case. They are, therefore, directed to register the F.I.R. and, thereafter, to conduct the investigation therein,"

Similarly, in case titled Jamshed Khan and another v. Government of Sindh and others 1999 PCr.LJ 512 it was held, "Thus, it is obvious that looking towards the facts and circumstances of a particular case not only second but even third F. I. R. could be registered."

The above discussion would lead us to the conclusion that if a distance and separate cognizable offence is disclosed and no effective inquiry or trial can be held without properly appreciating and considering the two versions then another F.I.R. is to be registered.
In the case in hand the police officials declared the occurrence as police encounter and registered F.I.R. No.307 on 14-3-1997 whereas the petitioner who is mother of the deceased has charged various Police Officers and attributed specific roles to them for murder other son. The Constitution of Pakistan safeguards against breach of his fundamental rights, they also stand controlled and governed by the, provisions of law against breach of their rights and are also safeguarded against certain wrongs. The police is not possessed with right to murder or kill or take life of any citizen accused of any offence only for the reason-that such person was involved in criminal cases and keeps a previous bad record. A person keeping bad record may be innocent in the case registered against him because under the law presumption of innocence will continue until he is proved guilty. If the police machinery takes law in their hands they are to be dealt with in the same manner as the ordinary citizens are dealt with. Nobody can be allowed to take law into his hands and it is the duty of the Courts to curb the highhandedness sternly.
Having given consideration to the controversy involved, we are of the view that in the attending circumstances of the case in hand, the respondent No.2, S.H.O. Police Station Cantt. Abbottabad, is under a statutory duty to reduce into writing the information given to him by the petitioner of the commission of a cognizable offence as provided by section 154, Cr.P.C. Needless to mention that if in the course of investigation he comes to conclusion that information given by the petitioner is false he can have a recourse to the law. The version on the basis of which F.I.R. No.307 has already been registered on.14-3-1997 is distinct whereas the version given by the petitioner is totally on different premises that her son, the deceased, was murdered by police officials named in the writ petition. At this stage we cannot hold as to which version is correct but truth can be ascertained only if the case of the petitioner is registered and both the cases are investigated upon together and thereafter, report or reports are submitted by 'the Investigating Agency. Unless both the versions are placed before the Court no proper adjudication of the respective contentions could be made to submit challan in one case and to ignore the version given in any other is not at all conclusive to the interest of justice.
In view of the above discussion this writ petition is accepted. Respondent No.2 S.H.O., Police Station Cantt., Abbottabad is directed to register a case in accordance with section 154, Cr.P.C. on the information being given to him by the petitioner of a cognizable offence and the investigation of the case be entrusted to an experience and honest police official. The petitioner is directed to approach the respondent No.2 for registration of the case.

Q.M.H./456/P Petition accepted.

PCRLJ 2000 PESHAWAR HIGH COURT 402 #

2000 P Cr. L J 402

[Peshawar]

Before Mian Muhammad Ajmal and Muhammad Azam Khan, JJ

ABDUR RASHID---Appellant

versus

NOOR ZADA and another---Respondents

Criminal Appeal No, 155 of 1995, decided on 23rd December, 1998.

Penal Code (XLV of 1560)---

----Ss. 302/34 & 404---Appreciation of evidence---Occurrence had taken place in daylight and had been promptly reported to the police---Ocular account of occurrence furnished by the eye-witnesses did not contain any serious contradiction or improvement---Presence of eye-witnesses at the scene of occurrence was natural and they were not motivated by any ill-will or enmity towards the accused---Ocular evidence inspired confidence and could be relied upon without recoveries having been effected in the case which could only serve as a corroborative piece of evidence--Convictions and sentences of accused were maintained in circumstances.

Kh. Muhammad Khan and Abdul Hakim Kundi for Appellant. Imtiaz Ali, A.A.-G. for the State. Maqsood Aziz and Asadullah Chawkani for the Complainant.

Date of hearing: 23rd December, 1998.

JUDGMENT

MUHAMMAD AZAM KHAN, J.---The appellant Abdur Rashid son of Abdullah Shah, resident of Village Guli Bagh Hod Tehsil Mardan, has preferred the present appeal against his conviction and sentence in case F.I.R. No.375, dated 14-5-1992 of Police Station Saddar Mardan, for offence under section 302/404/34, P.P.C. The appellant was found guilty for the offences by the learned Sessions Judge, Mardan and vide his order/judgment, dated 24-4-1995, he was convicted under section 302/34, P.P.C., for the murder of Sher Zada and sentenced to life imprisonment with a fine of Rs.20,000 or in default whereof to undergo further R.I. for one year. He was also convicted under section 302/34, P.P.C., for the murder of Munir Khan and sentenced to life imprisonment with a fine of Rs.20,000 or in default of fine to undergo further one year R.I. He was also convicted under section 404, P.P.C., for having misappropriated .30 bore pistol of Sher Zada deceased and sentenced to, two years' R.I. with a fine of Rs.5,000 or in default to undergo further 6 months' R.I. It was directed that half of the fine, if realised, is to be paid to the legal heirs of the deceased and all the sentences are to run concurrently. Alongwith this appeal the complainant has filed Criminal Revision No.57 of 1995 (Noor Zada v. Abdur Rashid). As both the appeal and revision arise out of the same judgment, therefore, we propose to dispose them of by this single judgment.

It is alleged that Abdur Rashid accused on 14-5-1992 at 12-00 hours in front of the office of the Mardan Development Authority had committed murders of the two deceased alongwith co-absconding accused Gulshad, Abdullah Shah, Habibur Rehman alias Bakhani sons of Hashim, Mukammil Shah alias Kabul son of Habibur Rehman alias Bakhani, in furtherance of their common intention by firing at them effectively and after having committed the offence they took away licensed pistol from the possession of Sher Zada and misappropriated the same.

Facts of the case briefly stated are that on 14-5-1992, Noor Zada complainant made a -report in the shape of Murasila before Muambar Khan, Inspector S.H.O., Police Station Saddar Mardan in the Civil Hospital, Mardan at 12-45 hours. According to the narration of the report, on that day complainant alongwith P. W. Shaukat son of Muhammad Zarin resident of Maayar, Sherzada son of Haji Amirzada, his uncle, and Munir alias Manai son of Pazir Gul, came out from the office of M.D.A. at Sheikh Maltoon Town and at 12-00 noon Sherzada and Munir got into their Car No.MR 660 when in the meantime the accused namely, Rashid, Gulshad sons of Abdullah Shah, Habibur Rehman alias Bakhani son of Hashim, Mukammil Shah alias Kabul son of Habibur Rehman alias Bakhani appeared on the scene duly armed with Kalashnikovs and they started firing at the two deceased who were inside their car. They were hit and killed. The motive for the offence was previous blood feud between the parties. The complainant mentioned in the report that besides him the occurrence was witnessed by Shaukat son of Muhammad Zarin.
After recording the aforesaid report Muamber Khan S.H.O. (P.W.12) sent the Murasila Exh.P.A./1 to the Police Station for registration of the case where its contents were incorporated into F.I.R. Exh.P.A. In the hospital Mukhtiar Ali A.S.-I. (P.W.8) prepared the injury sheet and inquest report of deceased Sherzada which are Exh.P.N./2 and Exh.P.N./3 and that of deceased Munir Khan Exhs.P.M./2 and P.M./3 and handed over the dead bodies to the doctor for post-mortem examination.
After the registration of the case P.W.12 Muamber Khan proceeded to the spot and on the pointation of. the complainant prepared the site plan Exh.P.B. with all its foot notes, drawings and sketches. During the investigation he took into his possession one Motor Car in white colour bearing No.MR 660 with broken front screen, as well as the sides panes having bullets marks vide memo. Exh.P.C./2. From the front seat of the aforesaid car where Sher Zada deceased was killed he took into possession a blood-stained cutting of the piece of cloth of the seat Exh.P.7 and some pieces of broken glasses Exh.P.8. From the rear seat where Munir deceased was hit and killed he took into possession blood-stained piece of cloth Exh.P.9 and were sealed into parcel vide memo. Exh.P.C./1. From the spot he took into possession 8 empties of 7.62 bore Exh.P.I I freshly discharged, one spent bullet Exh.P.12 of the same bore, 3 empties of .30_ bore Exh.P.13, vide memo. Exh.P.C./3. The blood-stained clothes of the two deceased and phial containing three spent bullets were brought from the mortuary by Aslam F.C. and these were taken into possession vide memo. Exh.P.C. He recorded the statements of the ocular witnesses and started search for the accused, therefore, obtained warrants under section 204, Cr.P.C., and proclamations under section 87, Cr.P.C. He also got photographs of the fated car of the deceased which are Exh.P.W.12/1 (four copies). On 4-10-1992, P.W. Noor Zada had produced a license copy in respect of a .30 bore Pistol No.68327 foreign made and License No.695-1, dated 18-8-1972 in the name of Hamzada, a brother of the deceased, in which the deceased Sherzada was a retainer, this was allegedly taken away by the accused. He took the same into his possession vide memo. Exh.P.W.12/5. The accused Rashid was arrested on 18-9-1992 by the political authorities of Bajawar Agency, was brought by Waheed Gul A.S.-I. and he arrested him on the same day. The Reader of the Political Agent Muhammad Iqbal sent a letter, dated 3-12-1992 in respect of the recovery of .30 bore pistol and 16 rounds of the same bore which were allegedly taken into possession from the accused during his arrest from the Tribal Territory. On 24-9-1992 Abdur Rashid accused was produced before a Magistrate for recording his confessional statement vide his application Exh.P.W.12/9 and after completion of the investigation he submitted complete challan against the accused.
Dr. Noorul Islam (P.W.1) conducted autopsy on the dead body of .Nunir Khan son of Pazeer Gul and found the following injuries on external `examination:---

(1) Fire-arm entrance wound on the face right side 3" lateral to the outer can, thus, of the right eye, size 1/2" x 1/2".

(2) Fire-arm exit wound on the face left side 3-1/2" lateral to the outer can, thus, of the left eye, size 1/2" x 1/2".

(3) Fire-arm entrance wound over the right clavical at middle third size, 2-1/2" x 2" with fracture clavical.

(4) Fire-arm exit wound on the neck left side interior laterally 1 " above the left clavical size 2-1/2" x 2".

On internal examination the doctor found thorax larynx, trachea and blood vessels injured. Stomach was found healthy and empty, mouth and pharynx were found injured. Death was caused due to injuries to the vital organs like trachea, big vessels i.e., external and internal carotit orteries, haemorrhage and shock. Time between injury and death was instantaneous and that between death and P.M. examination two and half hours.

Dr. Mumtaz Khan (P.W.2) performed post-mortem examination on the dead body of Sher Zada and found the following external injuries on his person:--

(1) Fire-arm entrance wound 1 x 1 c.m. on the right axilla.

(2) Fire-arm exit 2 x 3 c.m. in the left axilla.

(3) Fire-arm two entrance wounds closed to each other on the right lateral wall of chest at middle 1/3rd posterial.

(4) Fire-arm exit on lateral wall of left chest at middle 1/3rd posterial.

(5) Fire-arm entrance 2 x 2 c.m. on right jaw 2 inches below right ear.

(6) Fire-arm exit 3 x 2 c.m. on forehead 1" above right eyes.

(7) Fire-arm, entrance 1 c.m. x 1 c.m. on right face 1/2" in front of right ear.

(8) Fire-arm exit 2 x 2 c.m. right parietal 2-1/2" above right ear.

(9) Fire-arm grazed wound 2" x 3" on right parietal about 3-1/2" above right ear.

(10) Fire-arm entrance 1 c.m. x 1 c.m. on lateral wall of right chest 3-1/2" below right axilla.

(11) Fire-arm entrance 1 c.m. x 1 c.m. on lateral wall of right chest 1/2" below wound No. 10.

(12) Fire-arm entrance 1 c.m. x 1 c.m. on lateral wall of right chest 1" below wound No. 11.

(13) Fire-arm grazed 2 c.m. x 2 c.m. on medial aspect of right knee.

(14) Three bullets recovered from back of the left chest along the lateral wall of left chest.

On internal examination the doctor found cranium and spinal cord, Brain and spinal cord, scalp and skull injured. Thorax walls, cartilages, pleurae, right and left lungs, pericardium and heart and the blood vessels were found injured. Stomach was found normal and healthy. Cause of death was injury to vital organs, (brain, right and left lung and heart) leading to shock and death. Time between injury and death was instantaneous while between death and post-mortem within one hour.

Charge was framed against the accused-appellant to which he pleaded not guilty and claimed trial.
The prosecution in support of its case examined as many as 15 witnesses. After close of the prosecution evidence the accused-appellant was examined under section 342, Cr.P.C. He professed his innocence.
The conviction of the appellant is based on the ocular evidence of the two witnesses namely, Noor Zada (P.W.10) complainant, and Shaukat (P.W.I1), the motive for the offence, the recoveries from the spot of the spent bullets, the recovery of .30 bore pistol allegedly recovered from the appellant at the time of arrest, the confessional statement of Abdur Rashid appellant and the recovery of the damaged Motor Car having blood-stained seats etc., coupled with the abscondence of the appellant on which implicit reliance was placed by the learned Trial Court. Assailing the prosecution case the learned counsel for the appellant raised the following contentions:---

(i) that the motive advanced by the prosecution was false;

(ii) that the ocular testimony of the complainant and P.W. Shaukat is doubtful as no one from the staff of the office of M.D.A. was produced to prove the presence of the witnesses;

(iii) that the use of ,30 bore pistol was not mentioned by anyone of the ocular witnesses, therefore, the recovery of the said pistol from the possession of the accused was of no relevance;

(iv) that the confessional statement of Abdur Rashid was exculpatory in nature and, therefore, could not be considered as corroboration; and

(v) that abscondence of the accused is of no value as one piece of false evidence will not corroborate another false evidence, On the other hand, the learned counsel for the State supported the impugned judgment in its material particulars. The case of the prosecution is that the complainant party had gone to the office of M.D.A. on the eventful day and at about 12-00 noon when they were coming out of the said office the two deceased Sher Zada and Munir were killed inside the car. This fact has been fully supported and corroborated by the two witnesses of the prosecution aforementioned. It is a daylight occurrence and the report in the present case has been promptly made by the complainant in the Civil Hospital, Mardan without any delay before P.W.12 Muamber Khan S.H.O. of Police Station Saddar, Mardan who after receiving the information of the incident had rushed to the hospital after covering a distance of 1-1/2 Kilometer. Before the arrival of the S.H.O., Mukhtar Ali A.S.-I. had already prepared the injury sheets and inquest reports of the Awo deceased and despatched the dead bodies to the mortuary for post-mortem examination. The complainant of this case namely Noor Zada is the nephew of Sher Zada deceased while P.W. Shaukat is stated to be a family friend of the deceased and according to P.W.11 he was working with the deceased to supervise his field work because Sher Zada deceased being a contractor used to get his assistance. This witness, however, is not related to either of the parties and similarly Noor Zada being a close relation of the deceased does not have any direct ill-will with the accused party. Besides, the accused party is closely related to the deceased and they were known to each other. According to the prosecution prior to the present occurrence the appellant and his brother Mir Akbar were charged for the murder of Khalid who was the maternal uncle's son of Sher Zada deceased and thereafter, the niece of the appellant was killed for which Chiragh Mir and Zubair were charged who were said to be relations of the complainant party.

The prosecution case mainly rests on the ocular testimonies of Noor Zada and Shaukat. These witnesses were cross-examined at the trial but nothing favourable to the accused could be extracted from them. The presence of these two witnesses at the spot is supported by the fact that at the time of the report they were present in the Civil Hospital, Mardan. Besides, the deceased was a contractor and in connection with his construction work he visited M.D.A., as such Shaukat P.W., who used to assist him in the construction work was likely to be present with him and so could Noor zada P.W. being his nephew. The presence of these two witnesses is, therefore, natural and it cannot be ignored. Their testimonies have fully been corroborated by the fact that they have charged the appellant and 3 others for the offence at the first possible opportunity. The site plan and the recoveries of 8 empties of 7.62 bore, 3 empties of .30 bore, the broken front screen of the car and the position of the assailants given in the site plan would suggest that these witnesses had seen the occurrence themselves and they were present at the spot, The burning marks on the body and clothes of the deceased Munir were observed by the trial Judge as a result of tracer bullets and to our mind this possibility cannot be ignored. Besides, the testimony of P.W. Shaukat seems credible as he appears to be an independent witness as he is neither inimically disposed towards the appellant nor is swayed by any oblique motive to implicate him falsely in the present case. The ocular account of the two witnesses do not contain any serious contradiction or improvement.
Yet there are three types of incriminating evidence available against the accused-appellant; (a) the manner in which he was arrested on 4-10-1992 by the Political Authorities of Bajawar Agency, (b) the recovery of .30 bore pistol from his possession which was later on found to be licensed in which the deceased was entered as retainer, and (c) the confessional statement made by the .accused before a Magistrate which was exculpatory in nature but he has accepted the presence of the absconders namely, Gulshad, Habibur Rehman and Mukammul Shah and the deceased accompanied by a servant, in the vicinity of Sheikh Maltoon Town on the eventful day wherein the present occurrence was narrated in a different manner. The Trial Court considered the aforesaid three types of evidence against the appellant as corroboration of the ocular account and having been convinced of the guilt of the appellant he passed the impugned order of conviction and sentence by taking a lenient view as four persons participated in the crime by way of a joint act and it was not certain as to who started the affair amongst the accused and who acted brutally. Taking away of the .30 bore pistol from the possession of -the deceased was not mentioned by the complainant in the report. It was, however, later on introduced and developed probably after the arrest of the present appellant when the political authorities recovered the pistol and despatched a letter to the concerned authorities alongwith the accused in connection with the aforesaid recovery memo. which is Exh.P.W.12/6. The First Information Report is always not considered as substantive piece of evidence and entire details of the incident at times are omitted. In the presence of other cogent evidence available on the file these omissions can be ignored because appraisal of evidence which otherwise inspire confidence can be relied upon without other recoveries, as the same can only serve as corroborative piece of evidence. We have already held earlier in this judgment that the presence of all ocular witnesses at the spot seems natural. There is no material available on the file to show that the statements of these witnesses was motivated by ill-will or enmity towards the accused-appellant, therefore, the evidence of these two witnesses inspire confidence and their testimonies are credible. We, therefore; are inclined to uphold the conviction and sentence of the appellant which is maintained and the appeal is dismissed. In view of what has been stated above Criminal Revision No.57 of 1995 (Noor Zada v. Abdur Rashid) also stands dismissed.

N.H.Q./463/P Appeal dismissed.

PCRLJ 2000 PESHAWAR HIGH COURT 425 #

2000 P Cr. L J 425

[Peshawar]

Before Mian Muhammad Ajmal and Muhammad Azam Khan, JJ

MAHAR GUL---Appellant

versus

THE STATE and another---Respondents

Criminal Appeal No.288 of 1995, decided on 15th September, 1999.

Penal Code (XLV of 1860)---

----Ss. 302/34, 309 & 310---Appreciation of evidence---Trial Court in having found the accused guilty for Qisas had sentenced him to pay Diyat of two lacs and fifteen thousand rupees failing which he was to remain in judicial lock-up for indefinite period---Trial Court could not convert the sentence of Qisas into Diyat without the consent of all the legal heirs of the deceased--Conversion of punishment into payment of Diyat was invalid, illegal and without jurisdiction---Where punishment of Qisas was not punishable according to the Injunctions of Islam, offender could be awarded punishment as "Tazir" by the Court when waiver or compounding of right of Qisas was available on record---Trial Court had failed to appreciate the ingredients of Ss.309 & 310, P.P.C. pertaining to the waiver or compounding of the right of Qisas in "Qatl-e-Amd" liable to "Tazir" under S.302(b), P.P.C.---Case was, consequently, remanded to Trial Court for de novo trial keeping in view the merits of the case.

Muhammad Waris Khan for Appellant.

Musarrat Ullah Khan, A.A.-G. for the State.

Date of hearing: 15th September, 1999.

JUDGMENT

MUHAMMAD AZAM KHAN, J.---The appellant Mahar Gul son of Mahram Gul, resident of Nawekillai, Mingora, Swat, was tried alongwith Mst. Jamila co-accused by the learned Sessions Judge/Zilla Qazi, Swat, for having committed the murder of Fazle Rabi, husband of the co-accused namely, Mst. Jamila upon her prompting and abetment, on 20-7-1992 inside the house of the deceased at 12-30 hour.

Vide order, dated 6-7-1995, the learned Trial Court convicted Mahar Gul having been guilty for ' Qisas' and sentenced him to pay Diyat of two lac Fifteen thousand (Rs.2,15,000) failing which he was to remain in the judicial lock-up for indefinite period. The impugned order reflects that upon the same evidence adduced by the prosecution the Trial Court was obliged to acquit the co-accused Mst. Jamila and later on considered her as a legal heir of the deceased, and natural guardian of Mst. Saeeda, minor daughter, pardoned the convict. Mst. Zeba sister of the deceased, and wife of the appellant, refused to accept the Diyat amount though she was not the legal heir. The complainant in this case is Fazli Elahi brother of the deceased, and the star witness to the occurrence is Fazli Ghaffar his son.

In the instant case the convict has challenged his conviction and sentence through Appeal No.288 of 1995. The complainant Fazli Elahi has brought an appeal, Criminal Appeal No.275 of 1995, against the acquittal of Mst. Jamila co-accused. Also before us in Criminal Revision No.95 of 1995, brought by Fazli Elahi complainant, Fazli Ghaffar and Fazli Wahab sons of the deceased and Mst. Hussain Pari mother of the deceased for the enhancement of the sentence and converting the punishment of respondent No. l (Mahar Gul) from Diyat to punishment of Qisas as death. Through this common judgment we propose to dispose of all the abovementioned matters.
The facts of the case briefly stated are that the Additional S.H.O., Police Station Mingora, who was on patrol duty of the Illaqa on 20-7-1992 received information about the occurrence. He rushed to the spot which is the house of the deceased where Fazal Elahi complainant brother of the deceased made a report Exh.P.W.I/1 before him to the effect that on the eventful day at 12-30 hours he was informed by P.W. Bakht Akbar and his nephew Fazli Ghaffar that the deceased Fazle Rabi was killed by Mahar Gul on the direction of Mst. Jamila co-accused, wife of the deceased.

Both the accused were examined .under section 342, Cr.P.C., wherein they professed their innocence. It is on record that Mst. Zeba sister of the deceased is the wife of the appellant.

The reasons given by the Trial Court while passing the impugned order have not convinced us. The conviction of Mahar Gul appellant is solely based on the testimony of Fazle Ghaffar who was held to be present at the time of occurrence inside the house, yet the Court ignored his veracity in respect of the charge of ' Qatl-e-Amd' brought by him against his mother Mst. Jamila, the co-accused. Besides, the Trial Court has ignored the fact that Fazle. Rabi deceased had two sons namely, Fazle Ghaffar and Fazle Wahab yet he accepted Mst. Jamila and Mst.. Zeba as legal heirs of the deceased and also Mst. Saadia a minor daughter who waived their rights of Qisas in favour of the appellant. The Trial Court, therefore, could not convert the punishment of Qisas into Diyat without the consent of all the legal heirs of the deceased. This conversion of punishment into payment of Diyat is invalid, illegal and without lawful authority. According to the Islamic laws, where punishment of Qisas is not punishable according to the injunction of Islam then offender can be awarded punishment as ' Tazir' and that too can be awarded by a Court when waiver or compounding of right of ' Qisas' is available on record. The learned Trial Court has failed to appreciate the ingredients of sections 309 and 310, P. P. C. , which pertain to the waiver or compounding of the right of Qisas in ' Qatl-e-Amd' liable to 'Tazir' under section 302(b), P.P.C. We, therefore, hesitate to decide>the case in the present circumstances and are inclined to remand back the case to the Trial Court for trial de novo keeping in view the merits of the case. The appeal of the appellant Mahar Gul fails and Criminal Appeal No.275 of 1995, against Mst. Jamila is accepted. She is taken into custody and allowed transitory bail provided she furnishes bail bonds in the sum of Rs.1,00,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of the Additional Registrar of this Court.

Parties are directed to be produced/appear before the Trial Court on 30-9-1999. In case Mst. Jamila is not released on bail then she be also produced before the Trial Court on the said date. Criminal Revision No.95 of 1995 shall follow the events.

The office is directed to send immediately the record of the case to the Trial Court.

N.H.Q./467/P Case remanded.

PCRLJ 2000 PESHAWAR HIGH COURT 586 #

2000 P Cr. L J 586

[Peshawar]

Before Talat Qayum Qureshi, J

Mst. ANSAR JAN---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous No.299 of 1999, decided on 1st November, 1999

Criminal Procedure Code (V of 1898)-

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of---Accused, a lady was at the advance stage of pregnancy---Keeping in view the condition of the accused and welfare of the child who was expected to be born in couple of days, bail was granted to accused in circumstances.

Mst. Nusrat v. The State 1996 SCMR 973 and Mst. Nasreen v.

The State 1998 MLD 1350 ref.

Aurangzeb Mughal for Petitioner. Rashid Qamar Abbasi and Fida Bahadur Khan for the Complainant. .

Qazi Muhammad Ghazanfar, A.A.-G. for the State.

Date of hearing: 1st November, 1999.

JUDGMENT

Having been involved in case registered vide F.I.R. No. 191 under section 302, P.P.C. registered in Police Station City, Abbottabad on 20-6-1999, the petitioner submitted bail application in the Court of learned Judicial Magistrate for her release on bail but the same was rejected vide order, dated 5-7-1999 for want of jurisdiction. She then moved the Court of learned Additional Sessions Judge, Abbottabad but her application was rejected vide order, dated 20-7-1999. She has approached this Court for her release on bail.

Brief facts of the case are that Mst. Naseem (deceased) on 5-7-1999 at 18-15 hours in injured condition reported at Emergency Room A.M.C. Abbottabad that on the day of occurrence she was present in her house, her son Shafiqur Rehman was also present in the room and her daughter Mst. Tazeem Bibi was also present in the house. On the day of occurrence, a quarrel took place between the complainant and her step daughter-in-law Mst. Ansar Jan the petitioner. Mst. Ansar Jan again started quarreling with the complainant and threatened her that she would not be spared and with this she went inside the room, took a bottle full of kerosine oil, sprinkled the same at the complainant and put her on fire. On her hue and cry the son of the complainant was attracted to the spot and tried to extinguish the fire and later on, the other persons of the Muhallah also joined him. Motive as stated by the complainant was that her husband had contracted second marriage and step sons and their wives were annoyed with his second marriage.
Initially case under section 324, P.P.C. was registered but later on the complainant succumbed to her injuries, hence section of law was changed from 324, P.P.C. to 302, P.P.C.
Mr. Aurangzeb Mughal, Advocate, the learned counsel for the petitioner, argued that occurrence allegedly took place at 3 p.m. whereas the report was lodged at 6-15 p.m. No explanation for the delay has been given. He argued that the petitioner is innocent and there is no evidence against her at all. The deceased had put herself ablazed as she was mentally deranged. The only alleged eye-witness of the occurrence is Mst. Tazeem Akhtar daughter of the deceased who has not been examined by the prosecution as she did not support the case of the prosecution. Statements of Zaheer Ahmed, Muhammad Shafique, Muhammad Saeed, Rafique and Shafi under section 161, Cr.P.C. were recorded but they did not support the case of prosecution. Even Rafique, the husband of deceased, in his application submitted before the Deputy Commissioner for exemption of dead body from post-mortem has charged none.
It was further argued that the petitioner is mother of six children and one of them is hardly 1-1/2 years old who needs the attention of the petitioner. Moreover, the petitioner is pregnant and her pregnaney is at advance stages. In this respect he submitted medical certificate of the D.H.Q. Hospital, Abbottabad and prayed that she may be allowed bail so that she may give birth to child in open atmosphere.
On the other hand, the learned counsel appearing for complainant and State argued that petitioner has been directly charged in the F.I.R., as well as in the dying declaration of deceased. Shafiqur Rehman son of deceased has also charged her. The petitioner has committed murder of deceased brutally and she is not entitled to grant of bail.
I have heard the learned counsel for the parties and perused the record.
The occurrence allegedly took place at 15-30 hours on 20-6-1999 but the F.I.R. was lodged at 19-00 hours. Distance between police station and place of occurrence is hardly two kilometers. The delay in lodging the F.I.R. has not been explained. It is on record that the deceased was abnormal and remained under treatment in mental hospital at Dhodial for long time. The question as to whether the deceased committed suicide or was put at ablaze by the petitioner would be thrashed out at trial. The learned counsel mainly stressed the bail on the ground of advance pregnancy of the petitioner and her child who is hardly 1-1/2 years old who needs her attention and care. The certificate issued by D.H.Q. Hospital and Radiology Department of Women and Children Hospital, Abbottabad dated 28-10-1999. show that the petitioner has pregnancy of more than 8 months. Holy Prophet Muhammad (peace be upon him) in the famous case of "Ghamidiyyah" had suspended the sentence of pregnant woman not only till delivery of child but also postponed it till suckling period, i.e., two years obviously for the welfare of the child which shows the paramount importance/significance of the right of suckling child in Islam and the unprecedented care taken of and protection given to a child born or expected to be born by Holy Prophet Muhammad (peace be upon him) and this golden principle of administration of justice was followed by August Supreme Court of Pakistan in a case of Mst. Nusrat v. The State 1996 SCMR 973 and ad interim bail was granted to the petitioner. Similarly in case Mst. Nasreen v The State 1998 MLD 1350 the accused was a woman and had a suckling baby aged hardly about one year. Bail was granted to her merely on the ground that welfare of suckling child demanded that the child should not be made to suffer in jail for murder allegedly committed by his mother. So, following the decision made by Holy Prophet Muhammad (peace be upon him) in the famous case of "Ghamidiyyah" and dictums mentioned above, keeping in view the advance pregnancy of the petitioner and welfare of the child who is expected to be born in a couple of days, I admit her to bail provided she furnishes bail bonds in the sum of Rs.1,00,000 (one lac) with two sureties each in the like amount to the satisfaction of Judicial Magistrate, Abbottabad, who shall see that the sureties are local and men of means.

Q.M.H./M.A.K./476/P Bail allowed.

PCRLJ 2000 PESHAWAR HIGH COURT 622 #

2000 P Cr. L J 622

[Peshawar]

Before Talat Qayum Qureshi, J

SAQIB JILLANI---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 127 of 1999, decided on 22nd November, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Penal Code (XLV of 1860), S.452/324/34---Bail--Complainant, no doubt, had not charged any person by name in the F.I.R., but one of the accused had made a confessional statement promptly after his arrest narrating the entire story wherein he had not only named the other co-accused but had also assigned specific roles to them in the occurrence--Voluntary and true nature of the said confession and its legality and propriety could only be determined by the Trial Court and the same could not be scrutinized at bail stage---Case got registered by the accused showed that he was injured during the occurrence which fact had also prima facie connected him with the commission of the offence---Recovery of crime-empties from the spot, medico-legal reports of the deceased and the injured complainant, report of the Fire-arm Expert and statements of witnesses recorded under Ss.161 & 164, Cr.P.C. had further linked the accused with the crime--At bail stage it was wholly immaterial as to whose shot had proved fatal---Bail was declined to accused in circumstances.

Abdur Rehman v. Abdul Qadar 1992 PCr.LJ 1513; Abdul Malik v. The State 1988 MLD 1307 and Imtiaz Ahmad and others v. The State PLD 1999 SC 545 ref.

Mufti Muhammad Idris, Ghulam Mustafa Swati and Ejaz Afzal Khan for Petitioner.

Qazi Muhammad Ghazanfar, A.A.-G. for the State.

Muhammad Akbar Khan Swati and Tehmas Khan Jadoon for the Complainant.

Date of hearing: 22nd November, 1999.

JUDGMENT

Having been involved in case registered vide F.I.R. No.556 under section 17(4) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, section 452/324/34, P.P.C. in Police Station City Mansehra,- the accused-petitioner moved bail application in the Court of learned Judicial Magistrate, Mansehra but the same was rejected vide order, dated 6-1-1999. He then moved the Court of learned Sessions Judge, Mansehra for his release on bail but his application was rejected vide order, dated 17-3-1999. He has now moved this Court for his release on bail.

Brief facts of the case are that Asad son of Ghulam Rehmani in injured condition in D.H.Q. Hospital, Mansehra reported to police that on the night of occurrence he was sleeping in his room alongwith his brother Wajahat whereas, his father and inmates of the house were sleeping in other rooms of the house. Four persons entered their house. All of them had muffled their faces. They took him and his brother out of the room into Verandah and they asked him about the other inmates of the house, gold ornaments and safe. In the meanwhile the father of the complainant also got up. The accused wanted to take complainant, his father and brother to the room but his father refused, on which one of the accused fired with pistol, as a result of which the father of the complainant, namely, Ghulam Rehmani got injured on the left side of his abdomen. Another accused also fired at him (complainant) with which he got injured on his left thigh. On the hue and cry of neighbourers the culprits ran away from the spot. The complainant claimed that he could identify the culprits if brought before him.
Mr. Ghulam Mustafa Khan Swati and Mr. Ejaz Afzal Khan, Advocates argued that nobody was charged by name in the F.I.R. and complainant in the F.I.R. had claimed that he could identify the persons if brought before him. Nadeem was arrested on 2-8-1998 and Saqib Jilani was arrested on 30-9-1998 but no identification parade has been conducted by the prosecution till date. It was further argued that there is no direct or circumstantial evidence to connect the accused-petitioner with the commission of offence and it was not known as to with whose firing the injuries were caused. The only, piece of evidence so far collected by the prosecution is the confession of co-accused Nadeem which too is in conflict with the F.I.R. and has not been corroborated with any independent evidence. The confession of the co-accused is not conclusive proof of the guilt of the petitioner and the same cannot be relied upon unless corroborated with other piece of evidence. The confession it was argued was retracted. It was further argued that accused-petitioner Saqib had on the same day at 3-15 a.m. lodged a report vide F.I.R. No.557 about his injury.
On the other hand, Mr. Tehmas Khan Jadoon, Advocate and Mr. Muhammad Akbar Khan Swati, Advocate for complainant and Qazi Muhammad Ghazanfar, A.A.-G. for State while repelling the arguments of the learned counsel for the petitioner argued that there is sufficient evidence available on record to connect the accused with the commission of offence. In the episode, two persons, namely, Ghulam Rehmani Kiyani and Asad were injured. Ghulam Rehmani Kiyani succumbed to injuries on- the same night. One Saqib son of Muhammad Farid in his statements recorded under sections 161 and 164, Cr.P.C. has supported the case of prosecution. All the accused were seen by Saqib P.W. at 3 p.m. in his shop duly armed with pistols. The medico-legal reports of Ghulam Rehmani Kiyani and Asad corroborated the prosecution version and the prompt judicial confession made by co-accused Nadeem also supports the case of prosecution. The motor car used in the commission of offence which belongs to the father of the accused-petitioner was also taken into possession by the Investigation Officer. Blood recovered from the spot, 4 empties of .30 bore recovered from the place of occurrence and Fire-arm Expert Report showing that the empties were fired with different weapons also fully lend support to the case of prosecution. Regarding- case registered vide F.I.R. No.557 by accused Saqib Jilani, the learned counsel argued that the said F.I.R. has been cancelled by the local police being false and frivolous and notice under section 182, P.P.C. has been issued against him by the local police.
I have heard the learned counsel for the parties and perused the record carefully.
No doubt no person by name was charged in the F.I.R. by the complainant Asad. Nadeem one of the accused was arrested on 2-8-1998 and he made confessional statement promptly on 3-8-1998 and narrated the entire story in his confessional statement. He not only named the other co-accused but also assigned them specific roles in his confessional statement. The argument of the learned counsel for the petitioner that the confession of co-accused Nadeem was involuntary and the same has been retracted, therefore, it is inadmissible. This argument is not tenable because voluntary or involuntary, truthfulness, legality and propriety of the confessional statement cannot be scrutinized at bail stage as it would be the trial Court to go into such details. In this regard I am guided by principles laid down' in Abdur Rehman v. Abdul Qadar 1992 PCr.LJ 1513 and Abdul Malik v. The State 1988 MLD 1307. Moreover, the Court can look into the confessional statement of the co-accused and statement of witnesses recorded under section 161, Cr.P.C. in order to tentatively determine as to whether reasonable grounds for believing that the petitioner was prima facie connected with the commission of offence. In this regard reliance is placed on Imtiaz Ahmad and others v. The State PLD 1999 SC 545.
The argument of the learned counsel that the complainant in his F.I.R. had stated that he could identify the persons if brought before him and despite arrest of two accused no identification parade has been held till date, hence petitioners are entitled to be released on bail. This argument of the learned counsel for the petitioner cannot help him at this stage because it has been clearly mentioned in the F.I.R. that all the accused had muffled their faces, hence the question of their identity by the complainant does not arise at all. Even otherwise in the peculiar circumstances of this case, holding of identification parade in case of dacoity and robbery is not requirement of law. Identification parade is held as a matter of caution. Two co-accused are still absconders and there is every possibility that on their arrest the identification parade if required by prosecution, shall be held, therefore, the accused-petitioner at this stage 'cannot claim benefit for not holding identification parade of the arrested accused.
So far as report lodged by accused-petitioner vide F.I.R. No.557 is concerned the same has been found to be baseless, false and frivolous by the Investigation Officer and the local police has recommended for the cancellation of the case and proceedings against him under section 182 P.P.C., so the case registered by him is of no help. It is rather another corroborative piece of evidence which shows that accused was injured during the occurrence as narrated by co-accused Nadeem. This piece of evidence also prima facie connects him with the commission of offence.
The next argument of the learned counsel for the petitioner is that nobody has been charged by name in the F.I.R. and there is no material available against the petitioner to connect him with commission of offence. This argument is also of no help to the petitioner. It has been clearly stated in 'the F.I.R. that all the four accused persons had muffled their faces at the time of occurrence, therefore, how the complainant could charge them by name. However, Nadeem co-accused in his confessional statement has taken the names of his co-accused and has assigned them specific roles also. So fare, as the evidence which connects the accused-petitioners with the commission's of offence is concerned, there is a confessional statement of co-accused which was recorded promptly. He was arrested on 2-8-1998 and his confessional statement was recorded on 3-8-1998. Four empties recovered from the spot, recovery of blood, medico-legal reports regarding deceased Ghulam Rehmani Kiyani and Asad complainant and the report of the Firearm Expert that the recovered empties were fired from different weapons and statement of Saqib son of Muhammad Farid recorded under sections 161 and 164, Cr.P.C., prima facie, connect the accused-petitioner with the commission of offence.
The argument of the learned counsel for the petitioner that it is not clear as to from whose shot the injuries were sustained by complainant and deceased. At this stage it would be sufficient to say that it is wholly immaterial as to whose shot proved fatal and the same would be seen at trial. The tentative assessment of material on record shows that there exists prima facie case connecting the accused-petitioners with the commission of offence. No case, therefore, for grant of bail to the accused-petitioner is made out. The application in hand is dismissed in circumstances.

N.H.Q./497/P Bail refused.

PCRLJ 2000 PESHAWAR HIGH COURT 628 #

2000 P Cr. L J 628

[Peshawar]

Before Talat Qayum Qureshi, J

MUHAMMAD IRSHAD---Appellant

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.272 of 1999, decided on 4th October, 1999

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.337-F(ii)---Bail, grant of--Accused had caused only one injury by a Chhuri on the right forearm of the complainant which was a non-vital part of the body and he did not repeat the blow---Medical report has silent about the injury being dangerous to life---

Offence allegedly committed by accused did not fall within the prohibition contained in S.497(1), Cr.P.C.---Occurrence had taken place due to minor family dispute---Accused was neither a previous convict nor a habitual, hardened, desperate or dangerous criminal and he was no more required for further investigation---Bail was granted to accused in circumstances.

Aurangzeb v. The State and another 1999 PCr.LJ 230 ref.

Shad Muhammad Khan for Petitioner.

Qazi Muhammad Ghazanfar, A.A. -G. for the State.. .

Muhammad Aurangzeb Zahid for the Complainant.

Date of hearing: 4th October, 1999.

JUDGMENT

Having been involved in case registered vide F.I.R. No.308 on 13-8-1999 under section 337-F(ii), P.P.C. in Police Station Saddar Mansehra, the petitioner submitted an application for his release on bail in the Court of Judicial Magistrate, Mansehra but his application was rejected vide order, dated 8-9-1999. He, thereafter, moved a similar application in the Court of learned Sessions Judge, Mansehra but his application was dismissed by the learned Sessions Judge, Mansehra vide order, dated 13-9-1999. Now the petitioner has moved this Court for his release on bail.

Brief facts of the case are that on 13-8-1999 complainant Ali Mardan hired taxi from Mansehra Bazar. When he reached near his house, petitioner Muhammad Irshad with Kala and Qazi were waiting for him. On seeing the complainant, petitioner gave Chhuri blow on the right fore-arm of the complainant and Kala gave stick blow to him. The complainant was rescued by the taxi-driver. Motive for the offence as stated by the complainant is that accused who are brothers of his daughter-in-law, Rubina were annoyed with the complainant for providing maintenance to the widow and children of his deceased son Siraj Ali.

3.I have heard the learned counsel for the parties at length and perused the record carefully.

I tend to grant bail to the accused-petitioner on the ground that the injury sustained by the complainant is on the non-vital part of the body, i.e. right fore-arm. Medical report is silent as to whether the injury was dangerous to his life or not. The offence with which the accused-petitioner is charged is punishable with imprisonment of three years and also payment of A Daman, as such the same does not fall within the prohibitory clause of section 497(1), Cr.P.C. The petitioner, as per record of the case, is neither previous convict nor dangerous criminal. The occurrence took place due to minor family dispute. As per F.I.R. only one Chhuri blow was given by the petitioner and though the complainant being an old man was at the mercy of the accused, the act of giving blow was not repeated. The complainant has sustained injury on his fore-arm which falls under kind of Badi'ah under section 337-F(ii), P.P.C. entailing punishment for payment of Daman and imprisonment which may extend to 3 years as Tazir. Accused being neither a previous convict nor habitual, hardened, desperate or dangerous criminal and he was no more required for further investigation is entitled to bail. Reliance is placed on Aurangzeb v. The State and another 1999 PCr.LJ 230.
For the foregoing reasons I accept the application and allow bail to the petitioner on furnishing bail bonds in the sum of Rs.1,00,000 (one lac) with two sureties each in the like amount to the satisfaction of Judicial Magistrate, Mansehra who shall see that the sureties are local and men of means.

N.H.Q./497/P Bail granted.

PCRLJ 2000 PESHAWAR HIGH COURT 639 #

2000 P Cr. L J 639

[Peshawar]

Before Shahzad Akbar Khan, J

JUMMA KHAN---Petitioner

versus

THE STATE and 2 others---Respondents

Criminal Bail Application No. 166 of 1999, decided on 22nd October, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.377---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12---Bail---No enmity existing between the parties, false implication of accused in the case was out of question---Delay in lodging the F.I.R. had been sufficiently explained, victim, a child of 9/10 years could not be expected to go to the police station without being accompanied by some elderly person like his father who was not present in the house---Sufficient grounds existed to connect the accused with the offence alleged against him which fell within the prohibitory clause of S.497(1), Cr.P.C.---Bail was declined to accused in circumstances.

1998 MLD.2057; 1995 PCr.LJ 541; 1978 SCMR 235; 1984 PCr.LJ 1137; 1995 PCr.LJ 574; Muhammad Sharif v. The State 1999 SCMR 338 and Atta Muhammad v. The State Criminal Miscellaneous No. 105 of 1998 ref.

Muhammad Jehangir Awan for Petitioner.

Malik Hamash Gul for the State.

Muhammad Waheed Anjum for the Complainant.

Date of hearing: 22nd October, 1999.

JUDGMENT

The petitioner, Jumma Khan, has moved this application for his release on bail in case F.I.R. No. 111, dated 15-8-1999 of Police Station Paroa registered under section 377, P.P.C. read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, as he could not succeed in his attempt for such relief in the lower Courts.

The victim of this case is Abdul Saeed who is a boy of 9/10 years and has lodged a report on 15-8-1999 at 12-30 hours to the effect that in the morning of the eventful day after leaving his cow with the cattles of Muhammad Akram in the field, he was returning to his home while on the Katcha roadside, the petitioner caught hold of him and forcibly took him towards the Jungle and committed sodomy on him and, thereafter, his co-accused Bilal, also came and subjected him to his unnatural lust. After this unhappy incidence, the child came to his house but his father was out in connection with his work and on his return the episode was stated to him, whereafter he came to the police station in the company of his father, namely, Hameedullah, and lodged the report.
The learned counsel for the petitioner has contended that the petitioner is below the age of sixteen years and, as such, he is entitled to the concession of bail. In this respect he placed reliance on his School Leaving Certificate which is placed on file as Annexure "F", where in his date of birth is shown as 4-1-1987. He also made a reference to the medical report, dated 5-8-1999, wherein it is mentioned that no penetration has been performed which, according to the learned counsel, is a necessary ingredient for the commission of the offence. He also criticized the case of the prosecution on the point that according to the medical report some semen like stains were seen on the garments of the victim and such part of the attire were cut down and sealed for the purpose of chemical analysis, but so far the prosecution has not procured the laboratory report. He placed reliance on 1998 MLD 2057 on the ground of minority and 1995 PCr.LJ 541 on the point of consideration between the medical report and the version of the complainant and that there is some delay in lodging the F.I.R.
On the other side, the learned counsel appearing for the complainant, has opposed the bail application with his submission that the petitioner is directly charged in the F.I.R. on the same day when the occurrence took place and the delay of small duration has been successfully explained by the complainant which occurred due to the absence of the father of the victim child and no sooner his father arrived, the matter was promptly reported in the police station. He also submitted that the charge against the petitioner is not the outcome of any malice or enmity. A child of 9/10 years of age has come forward with an upright version. The medical report prepared on 5-8-1999, prima facie, supports the version of the complainant, as semen like stains were seen on the garments of the complainant. The learned counsel further submitted that the observations of the doctor with regard to the non-penetration would not be of any help to the petitioner as, according to him, even if the factum of penetration, for the sake of arguments, is excluded from consideration, even then the case of the petitioner would fall under section 511, P.P.C., i.e. an attempt to commit an offence punishable for imprisonment for life and in such-like eventualities, the term of punishment shall extend to half of its longest term provided for the offence. In the instant case under section 377, P.P.C., the punishment is life -imprisonment and, as such, it will be more than ten years, which again brings the case of the petitioner within the prohibitory clause of section 497, Cr.P.C. Thus, the petitioner is not entitled to the concession of bail. In support of his contentions, reliance was placed on the cases reported as 1978 SCMR 235, 1984 PCr.LJ 1137 and 1995 PCr.LJ 574.
Learned counsel for the State while adopting the arguments of the learned counsel for the complainant has also vehemently opposed the bail application.
I have heard the rival arguments of both the sides and have gone through the record.
The main stay of the arguments of the learned counsel for the petitioner is the ground of minority, who placed his reliance on the School Leaving Certificate, but the matter of the petitioner was referred to Medical Board for the proper assessment of age of the petitioner. The Board comprised three doctors, i.e. a Radiologist, a Physician and a Surgeon, who have given a unanimous report about the age of the petitioner in the following words:--

"The Board thoroughly examined, necessary investigation done. Findings of the Board are as follows:--

(1) Sex organs well-developed.

(2) Secondary sexual character developed.

(3) X-Ray for age done and his apparent age is 15 years and bone age is 15-16 years."

In this respect, the report of the Radiologist is also available on the file, according to which the age of the petitioner is 15/16 years.

I had also summoned the petitioner from jail on the application of counsel for the petitioner for assessing his physical appearance, who was produced before me and I am also of the opinion that his age would not be, apparently, less than what has been given by the, Radiologist. On the question of age in such-like cases, I derive wisdom from the case of Muhammad Sharif v. The State reported in 1999 SCMR 338, wherein it has been observed as under:--

"Furthermore, it has been time and again laid down that merely because a person is 16 years of age would not make him entitled to the grant of bail automatically. Each case has to be examined in the light of its own facts and the discretion has to be exercised judicially and not arbitrarily."

As for as the circumstances of this case are concerned, there is no enmity between the parties and, as such, it is not a case of false implication. The delay has been sufficiently explained, because the victim, a child of 9/10 years, could not be expected. to go to the police station without being associated with some elderly person like his father, who, on arrival of the victim to the house, was not present there. Moreover. a judgment of this Court in Criminal Miscellaneous No. 105 of 1998, titled Atta Muhammad v. The State in a case of similar nature is also before me where the bail was refused to the petitioner, amongst others, with the following observations:--

"It is by now well-settled that an accused under the age of sixteen years is not entitled to bail as of right and each case is to be judged according to its circumstances."

In view of the above discussion, I am of the view that on the data available before me, sufficient grounds exist to connect the petitioner with the offence he is charged with which falls within the prohibitory clause of section 497, Cr.P.C. Therefore, I have no inclination to give him the discretionary relief of bail. -. '
Resultantly, this bail application is dismissed. However, the prosecution is directed to submit complete challan of the case within fifteen days and the trial Court shall conclude the trial of the petitioner within six months.

N.H.Q./483/P Bail refused.

PCRLJ 2000 PESHAWAR HIGH COURT 707 #

2000 P Cr. L J 707

[Peshawar]

Before Muhammad Azam Khan and Abdur Rauf Khan Lughmani, JJ

NOOR KHAN---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.39 and Criminal Revision No.8 of 1996, decided on 18th March, 1999.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Presence of eye-witnesses on the spot at the relevant time was established---Eye-witnesses were natural witnesses of the occurrence and they had given a uniform and consistent account of the incident which was corroborated by medical evidence and evidence of incriminating recoveries---Accused being related to the parties, question of his mistaken identity or substitution could not 'arise---Witnesses had no motive for false implication of accused---Unexplained prolonged abscondence of accused had also contributed towards his guilt---Occurrence being a sudden affair, lesser punishment had rightly been awarded to accused-=-Conviction and sentence of accused were upheld in circumstances.

Sanaullah Khan Gandapur for Appellant. .

S. Saeed Hassan Sherazi, Asstt. A.-G. for the State.

S. Zafar Abbas Zaidi for the Complainant.

Date of hearing: 18th March, 1999.

JUDGMENT

MUHAMMAD AZAM KHAN, J.--- The appellant, namely, Noor Kharr son of Mamraiz Khan, aged about 55/56 years, resident of Aba Khel Tehsil and District Lakki Marwat, was tried by the learned Special Judge, Lakki under section 302/34, P.P.C. for having committed the murder of the two deceased, namely, Hakim Khan and Jalandar Shah, in furtherance of his common object alongwith his absconding co-accused, namely, Saleh Khan. (now dead), on 30-11-1996, at Khuftan prayers time near graveyard of village Aba Khel, within the criminal jurisdiction of Police Station Lakkk Marwat.

On conclusion of the trial, he was found guilty for having committed the murder of Jalander Shah and was convicted and sentenced to life imprisonment, alongwith a fine of Rs.40,000 or in default whereof to undergo five years simple imprisonment. The fine, on realization, 2/3rd of the same was to be paid to the legal heirs of the deceased as compensation. Benefit under section 382-B, Cr.P.C. was also extended to the appellant, vide judgment and order, dated 8-4-1996 of the learned Sessions Judge, Lakki.
The convict has challenged his conviction and sentence through the present appeal and we have also before us a Criminal Revision No.8 of 1996 (NawaZ Khan v. Noor Khan), for the enhancement of his conviction from life imprisonment to that of normal penalty of death.
This common judgment shall dispose of both the matters, as both have arisen out of the same judgment of the trial Judge, dated 8-4-1996.
According to the facts of tile prosecution's case, Muhammad Nawaz complainant on 30-11-1996 took the dead bodies of the two deceased, namely, Hakim Khan and Jalander Shah, to Police Station Lakki, at 21-30 hours, accompanied by P.W. Fazal Rahim, and lodged a report to the effect that on the eventful night at khuftan Prayers time, after having meal. he alongwith his brother named Hukum Khan, and cousin, namely, Meherdld, left their house for the mosque for offering Khuftan prayers. Having reached near the mosque belonging to Saleh Khan, they came across Saleh Khan and his brother Noor Khan, who both were armed with Topaks. At that time lights of the mosque were on.
The accused. Noor Khan, asked Meher Dad P.W. as to why he was always beating his sister. His reply was that she being his daughter-in-law, therefore, he (the accused) had no concern with her. Upon this, the accused Noor Khan and Saleh Khan started his beating. Hukum Khan deceased intervened, but Saleh Khan accused fired two shots at him with which he was hit, fell to the ground and expired subsequently. Thereafter, both the accused decamped from the spot. No other motive was given in the report. Besides the complainant, the occurrence was stated to have been witnessed by P. Ws. Meher Dad, Fazal Rahim and Abdul Baqi. He, therefore, charged Saleh Khan and Noor Khan for the offence.
This report (Exh.P.W.7/1) was recorded by Mr. Abdul Hameed Khan S:H.O. (P.W.7) who, after registering the case, prepared injury sheets of both the deceased, vide (Exh.P.W.7/2 and Exh.P.W.7/3), inquest reports (Exh.P.W.7/4 and Exh.P.W.7/5) and, thereafter, despatched the dead bodies to mortuary under the escort of Muhammad Amir (P. W.11) and then proceeded to the spot for the purposes of investigation.
On way to the spot, P.W. Meherdad met him as, he was injured and, therefore, his injury sheet (Exh.P.W.7/6) was prepared by him, whereafter, he was sent to the hospital for treatment.
Having reached the spot, this witness inspected the same and prepared the site. plan (Exh.P.B.) where deceased Hukum Khan was killed. This spot is near the mosque belonging to Saleb Khan accused, wherefrom blood-stained sand was taken info possession and sealed the same in a parcel, vide memo. Exh.P. W.2/1. He also took into possession blood-stained sand from the place of deceased Jalander Shah and sealed it into a parcel vide memo. Exh.P.W.2/2, He had further recovered one empty of .12 bore (Exh.P.l), two pellets (Exh.P.2), four cardboard (Exh.P.3) and one wed ('Exh.P.4) and sealed the same into a parcel, vide memo. Exh.P.W.2/3. From the mosque belonging to Saleh Khan and mosque belonging to the complainant party, which are close to each other, he took into possession two electric bulbs of 200 volts each in working condition, vide memo. Exh.P.W.2/4. The blood-stained clothes of the deceased Hukum Khan were brought from the mortuary which he took into possession alongwith four pellets extracted from his dead body, and sealed the same into a parcel, vide memo. Exh.P.W.2/5.
Thereafter, the witness inspected the spot where Jalander Shah was killed. This spot is 1-1/2 furlong away from the previous spot and there he prepared the site plan (Exh.P.B./I) at the instance of the witnesses. This spot is situated in the graveyard, wherefrom blood-stained sand was taken into possession and sealed it in a parcel vide memo. Exh.P.W.2/2. Blood-stained clothes of deceased Jalander Shah albngwith one Phial were also sealed into a parcel, vide memo. Exh.P.W.2/7.
He recorded statements of the P.Ws. The accused were not traceable and, therefore, he obtained warrant under section 204, Cr.P.C. and proclamation. under section 87, Cr.P.C. against them and after completion of investigation, submitted challan against them under section 512, Cr.P.C. on 19-11-1986. Accused' Noor Khan was arrested on 13-8-1992 by Mr. Meenadad Khan, Sub-Inspector (now dead), but challan against him was submitted by P.W.8, namely, Muhammad Farid Khan, Inspector.
Since co-accused Saleh Khan died on natural death during pendency of the case, therefore, proceedings against him abated on 13-1-1994.
P.W.10, doctor Ghulam Hussain, had examined P.W. Meherdad on 14-11-1986 at 12-35 a.m. in Civil Hospital, Lakki and found the following:--

"Swelling and abrasion on the right elbow joint."

Similarly, this witness had conducted post-mortem examination on the dead body of-deceased Jalander Shah on the same day at 8-00 a.m. and found the following:--

(1) One entrance wound of fire-arm on front of left shoulder size 1/4" x 1/4" skin muscle and cavity deep.

Likewise, he had also conducted post-mortem examination on the dead body of Hukum Khan deceased the same day at 7-30 a.m. and found the following:--

(1) One entrance wound of fire-arm black charring on left side of neck size 4" x 1 " skin muscle deep.

(2) Five exit wound of fire-arm on back left shoulder within area 3" x 4". Size 1/4" x 1/4" each.

(3) One entrance wound of fire-arm on back of right shoulder lateral side 2" x 2" skin muscle and bone deep cavity.

(4) One exit wound of fire-arm on left side of chest at front on lateral side of left nipple size 1/4" x 1/4".

13-A. The prosecution's evidence consists of eleven witnesses, of whom the evidence of P. W.4, Nawaz Khan complainant and P. W.5 Mehrdad, an injured witness, are material, around whom the entire incident revolves. P.W.5, Meher Dad is stated to be father-in-law of the sister of the present accused. P. W.6, Fazal Rahim is the ocular witness to the murder of Jalander Shah deceased and had participated in the chase of the appellant from his mosque upto the spot in the company of the complainant.

There is nothing noteworthy in the statement of the accused recorded under section 342, Cr.P.C., as he has denied the accusation and professed innocence.
The conviction of the appellant is based by the trial Court on the ocular account of the aforesaid three witnesses, the motive in respect of the ill-treatment metted out by the sister of the accused through Meherdad P.W. and the abscondence of the appellant for more than six years and his conduct of disappearance after the occurrence, besides the independent charge of causing the death of the deceased by firing one shot at him.
Assailing the prosecution's case, learned counsel for the appellant raised the following contentions:--

(i) That the occurrence was a sudden affair and the appellant had no intention to kill the deceased;

(ii) That P.W. Meherdad or Hukum Khan deceased might have provoked Saleh Khan, the dead accused, who initiated the first episode;

(iii) That the evidence adduced by the prosecution was interested and a false case had been planted against the accused party;

(iv) That the occurrence did not take place in the manner alleged by the prosecution; and

(v) That the subsequent occurrence of the murder of Jalander Shah was an unseen incident, as the spot was in darkness..

Learned counsel for the complainant and the learned Assistant Advocate-General for the State supported the impugned judgment by reiterating the reasons contained therein.
They contended that the ocular witnesses, namely, Nawaz Khan complainant, Meherdad and Fazal Rahim P. Ws. were natural witnesses to the occurrence, as according to them, the first murder took place just in front of mosque belonging to Saleh Khan (the dead accused) where electric bulbs were on and sufficient moonlight was available for the identity of the culprits. They urged that the aforesaid witnesses were naturally proceeding towards the mosque for Khuftan prayers, when they were waylaid by the assailants who were duly armed with lethal weapons. According to them, the complainant party had to pass in front of the mosque of the accused party and then proceed to their mosque, which is adjacent and at a distance of 5/6 paces.
We have given our anxious thoughts to the arguments led by both the parties and have minutely examined record of 'the case. To our observations, both the parties are related inter se and are known to each other, as they live in the same vicinity, therefore, their identity is not hidden from one another. In the first instance. there was sufficient moonlight and the electric bulbs were on, therefore, the identity of Noor Khan cannot be concealed, as it was he who had initiated the assault by addressing Meherdad P.W. as to why he was beating their sister and there was a scuffle between the parties, which resulted into injuries to Meherdad P.W. The accused party was preferably waiting and waylaying the complainant party to settle the score of the incident of beating of their sister. It is an admitted fact that accused Noor Khan initiated the assault on P.W. Meherdad as is supported from his injuries which he received in the transaction. Noor Khan accused is, therefore, the central figure of the episode.
No reasons are available on the record to suggest that a false accusation has been made by _the prosecution witnesses. Going of the witnesses to perform their Khuftan prayers in a mosque is a normal joint feature in the rural society. Therefore, presence of these witnesses at the spot has been established beyond any reasonable doubt. These witnesses are natural to the occurrence and have given a uniform and consistent account of the incident. Their testimony has been fully corroborated by the medical evidence,' recoveries of the card-board discs, recovery of .12 bore empty from the spot and recoveries of pellets from both the dead bodies of the two deceased suggests that it matched with the weapons of offences which were attributed to each of the culprits in the F.I.R.
To our minds, the testimony of the prosecution witnesses commands respect, as the record and their cross-examination do not suggest that they had inimically deposed against the appellant. Besides, their account does not contain any serious contradiction or improvement.
The learned trial Judge has correctly observed that though there was a common charge of double murders against Saleh Khan, the dead accused, and the accused/appellant, but it was a case of vicarious liability, because Saleh Khan was given an independent role of causing the murder of Hukum Khan near his mosque. Therefore, the accused/appellant was not held responsible for the aforesaid murder and he was accordingly acquitted of the charge.
The State and the complainant party have not challenged his acquittal. In the circumstances, we, are therefore, ignoring the participation of Noor Khan appellant in that event, as far as the murder of Hukum Khan is concerned.
It is noteworthy to observe that in the previous episode mentioned above, Noor Khan had initiated the assault on P.W. Meherdad and his identity and presence has been established at the spot beyond reasonable doubt. The subsequent event in respect of the murder of Jalander Shah deceased is in continuation of the previous murder, as after the occurrence, Noor Khan in the company of his co-accused Saleh Khan decamped from the spot and they were followed by Nawaz Khan complainant, who raised an alarm in his pursuit and he was joined in the chase by P.W. Fazal Rahim and Jalander Shah deceased alongwith one Abdul Baqi, who was not produced at the trial. Having reached the graveyard, Noor Khan accused had warned Jalander Shah to be away from him and, thereafter, fired a shot and killed him. The distance between the first spot and the graveyard is stated to be 1-1/2 furlongs. The trial Judge after having examined the Lunar Calender had observed that it was the 10th of Rabi-ul-Awal, therefore, the identity of the accused at the time of firing at the deceased in the graveyard could not be doubted and the question of darkness is of no avail to him. The appellant had already been identified earlier. He was related to the parties, therefore, there cannot be any mistake in respect of his substitution as it is a case of single firing, for which he has been correctly charged by the witnesses, who had no motive of their own to falsely implicate him. As we have already observed that the ocular account is corroborated by the recoveries from the spot and the recovery of pellets from both the dead bodies of the deceased supported by an unexplained prolonged abscondence, therefore, we feel that the prosecution's case is fully proved against the appellant beyond any shadow of doubt. We are, therefore, not inclined to interfere in the impugned order and would accordingly maintain the same.
As regards the quantum of sentence, we are of the considered views that the occurrence is the result of a sudden affair, therefore,, the learned trial ~~ Judge has awarded adequate punishment which needs no interference.
For what has been discussed above, we find- no substance in this appeal which is hereby rejected, with the modification that out of the amount of Rs.40,000 a sum of Rs.10,000 shall be paid by the appellant as fine, or in default whereof he shall undergo six months simple imprisonment. Besides, he shall also pay an amount of Rs.30,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C., failing which he shall undergo simple imprisonment for six months. Benefits under section 382-B, Cr.P.C. is also extended to the appellant.

N.H.Q./477/P Appeal. dismissed.

PCRLJ 2000 PESHAWAR HIGH COURT 718 #

2000 P Cr. L J 718

[Peshawar]

Before Muhammad Aiam Khan, J

MUALIM SHAH---Petitioner

versus

JAN MUHAMMAD and another---Respondents

Criminal Revision No. 128 of 1997, decided on 19th October, 1999.

Criminal Procedure Code (V of 1898)---

----Ss. 250 & 439---Penal Code (XLV of 1860), S.447/448/506/34--Compensation for false or vexatious accusations---Validity---Complainant had not claimed to have witnessed the occurrence himself, but had filed the complaint on the basis of an information furnished to him by his Chowkidar---Since the Trial Court had acquitted the accused of the charges brought against him by the complainant and no intention in respect of a frivolous charge by him was forthcoming on the record, the impugned order of compensation under S.250, Cr.P.C. was not warranted in circumstances and the same was set aside accepting the revision petition.

AIR 1937 Oudh 269; 1986 SCMR 963,; PLD 1974 Lah. 434 and AIR 1934 Lah. 264 ref.

M. Mohibullah Kakakhel for Petitioner. Qasim Jan, O. S. D. and Ghulam Ali for Respondent No. 1. Date of hearing: 19th October, 1999.

JUDGMENT

This revision petition has been preferred by Mualim Shah against Jan Muhammad after having been aggrieved of the orders, dated 2R-9-1996

passed by the learned Judicial Magistrate, Mardan and that of the learned Additional Sessions Judge-I, Mardan, dated 27-10-1997.

The facts of the case briefly stated are that on 4-1-1996, Mualim Shah petitioner brought complaint under section 447/448/506/34, P.P.C. against Jan Muhammad and his son Ali Ahmad before the Judicial Magistrate, Mardan alleging therein that he was the owner of a garden in Mauza Quaid Abad, over which he had constructed a room for Chowkidar, that he had a dispute over the said property with the respondents which was pending in the Civil Court. On 3-1-1996 the two respondents had locked the room in the .said garden and had . also hurled threats and abuses on the Chowkidar. He went to the police station for report but upon refusal of the same he made the aforesaid complaint. The Magistrate after having received the complaint marked the same to the local police. Statements of the witnesses were recorded and the complaint was put in Court. Accused were charged and after recording some evidence they were acquitted as a case of no evidence, vide order, dated 16-7-1996. Thereafter, the learned Judicial Magistrate assuming jurisdiction under section 250, Cr.P.C. passed the impugned order on 28-9-1996, that the petitioner namely, Mualim Shah had brought a false/frivolous and vexatious complaint against Jan Muhammad, therefore, he was served with a notice under section 250, Cr.P.C. Reply to the notice was submitted by the petitioner. The observation of the learned Magistrate was that in the evidence of the complainant there is no mention that Jan Muhammad had linked himself with the crime, therefore, he was obliged to observe that the petitioner shall compensate Jan Muhammad for his physical and mental anguish by paying him a sum of Rs.4,000, which if not paid, be recovered from Mualim Shah according to law.
I have heard the learned counsel for the parties and have gone through the record of the case.
The learned counsel for the petitioner (Mian Mohibullah Kakakhel) contended that the impugned order passed by the learned Magistrate in respect of penalising the petitioner under section 250, Cr.P.C. is inoperative and against the procedure inasmuch as the learned Magistrate failed to apply his judicial mind in respect of imposition of compensation under section 250, Cr.P.C. The learned Magistrate has also not recorded the reasons for passing the said order. Reliance has been placed on AIR 1937 Oudh p.269, wherein it was held that it was the duty of the Magistrate ordering compensation to record his reasons for passing such order.
The learned Additional Sessions Judge had turned down the appeal of the petitioner mainly on the ground of limitation, as according to him the appeal filed by the petitioner before him was time-barred. In reply to the aforesaid objection the learned counsel for the petitioner contended that criminal revision filed after the expiry of period of limitation cannot be turned down simply on the ground of delay. He also submitted that the principles of limitation are not applicable when an order is ambiguous in the eye of law. He relied on 1986 SCMR p.963, PLD 1974 Lah. p.434 and AIR 1934 Lah.p.264. .

On the other hand, the learned counsel for the respondents (Mr Ghulam Ali) supported the orders of the two Courts below by reiterating that the learned Magistrate having considered this aspect of the case had come to the conclusion that the petitioner has brought a false and frivolous complain; against the respondent Jan Muhammad and after having acquitted him he was within his competence to order compensation ,of Rs.4,000 from the petitioner. Besides he also objected to the appeal filed by the petitioner before the learned Additional Sessions Judge after the expiry of period of limitation. The learned State Counsel (Mr. Qasim Jan) supported the arguments of the learned counsel for the respondents..

Having .considered the arguments of the learned counsel for the parties I am of the view that the complaint brought by. the petitioner before the trial Court was on the basis of an information furnished to him by his Chowkidar. He has nowhere claimed to have witnessed the occurrence himself. The basis of this fact entitled the respondent to the acquittal from the charges brought against him by the complainant, vide the detailed order passed by the learned Magistrate on 16-10-1996. Since the trial Court has exonerated the accused of the charger brought against him by the present petitioner in his complaint, therefore, in view of the same the order of compensation was not desired as no intention in respect of a frivolous charge of the petitioner is forthcoming on the record: With theme observation and the tease-law discussed t ate of the view that the impugned order of the Magistrate, dated 28-9-1996 hag no merit and the dance its net aside, The petition id accepted, N.H.Q./490/P Revision accepted

PCRLJ 2000 PESHAWAR HIGH COURT 724 #

2000 P Cr. LJ 724

[Peshawar]

Before Muhammad Azam Khan; J

AZAIDA BIBI---Petitioner

versus

DOCTOR KHAN and 4 others---Respondent.

Criminal Miscallatwous No.722 of 1999, decided on 4th October, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of .1860), S.324/34---Cancellation of bail---Accused, four members of a family, had been charged for effective firing without any positive role having been attributed to anyone of them---Injury sustained by the complainant on her thigh was reported to be simple in nature by the Doctor---Trial of accused had commenced and question of their common intention was yet to be determined by the Trial Court---Bail having been granted to accused by a competent Court, strong and exceptional grounds were required to cancel the same which were not forthcoming on the record---Petition for cancellation of bail was dismissed in circumstances.

M. Saddique Haider Qureshi for Petitioner.

Shaukat Ali and M. Manzoor Hassan, A.A. -G. for Respondents.

Date of hearing: 4th October, 1999.

JUDGMENT

This application has been preferred by Mst. Azaida Bibi, petitioner for the cancellation of bail granted to the respondents namely, Doctor Khan son of Islam Gul, Ayub Rehman son of Hati Khan, Hati Khan son of Rasheed Gul and Asmatullah son of Mehrban, by the learned Sessions Judge. Karak vide his order, dated 22-4-1999. The respondents Ayub Rehman, Had Khan and Asmatullah moved application for pre-arrest bail before the learned Sessions Judge, Karak while respondent Doctor Khan whose bail application was refused by the Judicial Magistrate, moved separate application for bail, All the respondents are involved in case F.I.R. No-21, dated 30-3-1999 under section 324/34, P.P.C, of Police Station Kurram, District Karak.

The occurrence in the instant case was reported by Mst. Azaida Bibi complainant in Police Station Kurram, District Karak on 30-3-1999 at 8-30 hours wherein she charged all 'the respondents for effectively firing at her. She has alleged in her report that the occurrence was also witnessed by Mst. Bibi Farhana her mother and the motive for offence was a domestic dispute.
I have heard the learned counsel for the petitioner, learned counsel for the respondents and the learned A,A.-G. for the State and, have gone through the record of the case.
At the very outset the learned A,A.-G. did not challenge the impugned order on the ground that challan in the present case has been submitted in Court and the trial has commenced. According to the learned A.A.-G. the case against the respondents is fixed for evidence in the trial Court. It is a case in which four persons of a family have been charged for effective firing and no positive role has been attributed to anyone of the respondents. The injury sustained by the complainant is reported to be simple in nature by the doctor on her thigh. Since the trial of the respondents has commenced and it is the duty of the trial Court to determine the question of common intention, therefore, the impugned order passed by the learned Sessions Judge at this stage needs no interference because once bail is granted by a competent Court then some strong and exceptional grounds are required to cancel the same. These grounds, however, are not forthcoming on the record. In the circumstances, this petition is dismissed.

Petition dismissed.

]

PCRLJ 2000 PESHAWAR HIGH COURT 733 #

2000 P Cr, I. J 733

[Peshawar]

Before Talat Qayum Qureshi, J

NAWAB KHAN---Petitioner

versus

THE STATE---Respondent

Criminal Revision No. l of 2000, decided on 11th February, 2000.

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

----Ss. 369, 439 & 514---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Forfeiture of bail bond--Revision---Review---Scope---Accused for whom petitioners stood sureties, having failed to appear in Court after release on bail, Trial Court ordered forfeiture of bail bonds and directed sureties to deposit amount of surety bonds---Revision filed against judgment of Trial Court having been dismissed by High Court, sureties had sought review of judgment of High Court passed in revision---Provisions of S.369, Cr.P.C. had provided that no Court, after it had signed the judgment, could alter or review same except to correct clerical error---High Court, after deciding revision petition; in absence of any statutory provision, had become functus officio and could not entertain a fresh prayer for same relief unless and until previous order of final disposal, had been set aside---Revision petition having been dismissed by High Court after hearing parties, judgment passed in such revision was final which could not be reviewed, especially when case for review had not been made out.

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

----S. 369---"Judgment"---Connotation---Word "judgment" as used in S.369, Cr.P.C. includes decisions and orders passed by Criminal Court on the merits of a case.

Muhammad Samiullah Khan and another v. The State PLD 1961 (W.P.) Lah. 227 and Maulana Muhammad Azam Tariq v. Khurshid Ali and another 1996 PCr.LJ 119 ref.

"Judgment "---Connotation,

Syed Altaf Hussain Shah for Petitioner, Qazi Muhammad Gharanfar for AWL A.-G, for the State:

Date of hearing: 7th February, 2000.

JUDGMENT

Nawab Khan, the petitioner, stood surety for Amir Hamza Ali Shah accused charged in case F.I.R. No.1416, dated 9-12-1993, Police Station Saddar, Haripur, under section 17(3), Haraba, Hudood Ordinance, 1979. The said accused applied for his release on bail. The learned Sessions Judge, Haripur accepted his application vide order, dated 25-6-1997 and directed that the accused be released on bail provided he furnishes bail bond in the sum of Rs.50,000 with two sureties in the like amount. After release on bail, the accused failed to attend the Court when summoned, as a result of which the learned trial Court summoned the sureties and ordered that the bonds be forfeited to State and both the sureties were directed to deposit amount of Rs.25,000 each on or before 2-7-1997. The petitioner filed Revision Petition No.35 of 1999 in this Court which was dismissed in limine on 21-1-2000. The petitioner now wants to review of the said order, dated 21-1-2000 through petition in hand.

Syed Altaf Hussain Shah, Advocate, the learned counsel represented the petitioner mainly argued that one Assaar Khan had preferred revision petition in this Court which was accepted vide order, dated 30-6-1999 and another Bench of this Court comprising Honourable Mr. Justice Qazi Muhammad Farooq Pasha, J. had reduced the penalty of co-surety from Rs.25,000 to Rs.10,000. Moreover, no period for filing revision petition has been prescribed in the statute, therefore, the order, dated 21-1-2000 be reviewed and the amount of bail bondalty be reduced to Rs.10,000.
Qazi Muhammad Ghazanfar the learned A.A.-G. argued that section 369, Cr.P.C. places a bar to review the order passed by Criminal Court. He, however, did not contest the application. .
I have heard the learned counsel for the parties and perused the record.
The plain reading of section 369, Cr.P.C. shows that no Court when it has signed the, judgment shall alter or review the same except to correct a clerical error. After deciding the revision petition, this Court in absence of as statutory provision has become functus officio and cannot entertain a fresh prayer for the same relief unless and until the previous order of final disposal has been set aside. The judgment is, therefore, final so far as this Court is concerned.
The argument of the learned counsel that order, dated 21-1-2000 cannot be called a "judgment" because the main revision petition was dismissed in limine. This argument of the learned counsel has no force; firstly, that notice was given to the State for 21-1-2000 and the learned Assistant Advocate-General represented the State and contested the revision petition; secondly, the revision petition was dismissed after hearing .the learned counsel for the parties; thirdly, the word "judgment" includes decisions and orders passed. Reliance is placed on Muhammad Samiullah Khan and another v. The State PLD 1961 (W.P.) Lah. 227 wherein it was held:--

"The expression ' judgment' as used in section 369 of the Criminal Procedure Code, 1898 obviously includes decisions and orders passed in criminal matters on the merits of the case. If, therefore, a party has agitated a matter by means of an application under section 561-A of the Code and the application is dismissed by High Court after considering the merits of the case then second application by the same party in respect of the same matter cannot be entertained under section 439 of the Code notwithstanding the. difference of 8 language employed in the two sections."

Likewise in Maulana Muhammad Azam Tariq v. Khurshid Ali and another 1996 PCr.LJ 119 it was held:--

"The expression 'judgment' as used in section 369 of the Cr.P.C. obviously includes decisions and orders passed by criminal Courts on the merits of the case and the High Court has no jurisdiction to amend its judgment by deleting passages from it."

The learned counsel for the petitioner has not been able to make out a case for review. I, therefore, do not find myself pursuaded to review order, dated 21-1-2000. Consequently, the review petition in hand is dismissed.

H.B.T./44/P Review petition dismissed.

PCrLJ 2000 PESHAWAR HIGH COURT 769 #

2000 P Cr. L J 769

[Peshawar]

Before Shahzad Akbar Khan, J

SAMEEULLAH KHAN---Appellant

versus

THE STATE and another---Respondents

Criminal Appeal No.20 of 1999, decided on 1st October, 1999.

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

----S. 377---Qanun-e-Shahadat (10 of 1984), Art.19---Appreciation of evidence ---F.I.R. had been lodged within twenty minutes of the occurrence---Victim child who was 5/6 years of age had narrated the occurrence so abruptly and spontaneously to his father that no occasion for fabrication of the story against the accused could arise---Evidence of the father of the child was fully protected by S.19 of Qanun-e-Shahadat, 1984, and principle of "res gestae" was admissible in evidence---Victim child had identified .the accused in Court as being the culprit who had committed sodomy with him---Accused had not been prejudiced due to non-examination of the child as a witness ---Factum of penetration was well-established by the bleeding anus of the child of the Chemical Examiner and absence of semen on the anal swabs, therefore, did not destroy the prosecution case---Conviction and sentence of accused were upheld in circumstances.

Muhammad Aslam Shah v. The State 1993 PCr.LJ 704 ref.

(b) Res gestae

----Concept---Rule and principle stated.

Muhammad Aslam Shah v. The State 1993 PCr.LJ 704 ref.

Gohar Zaman Khan Kundi for Appellant.

Asstt. A.-G. for the State.

Date of hearing: 1st October, 1999.

JUDGMENT

This appeal is directed against the judgment and order, dated 20-4-1999 recorded by the Senior Civil Judge/City Magistrate, Bannu, whereby the appellant, Samiullah, was convicted under section 377, P.P.C. and sentenced to five years' R.I. and a fine of Rs.10,000 payable to the victim as compensation.

The background of the instant case is that on 30-9-1997 complainant Muhammad Rafique son of Khangul, resident of Dawar Kakki, aged about, 30/32 years, at 12-50 hours made a report to Akbar Ali Khan, A.S.-I. which was recorded in the form of a Murasila and sent to the police station for registration of the case and subsequently, on the basis thereof case F.I.R. No.102 at Police Station Kakki was registered. The matter narrated by the complainant in the F.I.R. is that on the eventful day he was present on the road outside his house when at 12-30 hours his minor son named Nasir Gul aged about 5/6 years came out cryingly from the shop of the appellant. On enquiry, the minor son told him that Samiullah, the appellant, had forcibly committed sodomy on him in his shop. He was taking his son to the police station for lodging the report but in the meanwhile the Police Officer met him who recorded his report.
The Investigating Officer carried out the investigation, the minor was sent to the hospital for medical examination, the site plan and recovery memos. were prepared and after completion of investigation, complete challan was put in Court and the appellant was proceeded under section 512, Cr.P.C. on 15-10-1997. He was, however, arrested on 30-12-1997 and supplementary challan under section 377, P.P.C. against him was submitted in the Court.
The prosecution examined eight witnesses including Akbar Ali Khan, A.S.-I. as a P.W.1, while Muhammad Rafique complainant and Doctor Riaz Ahmad appeared as P.Ws. 7 and 3 respectively. The former investigated the case, whereas the latter had examined the victim and .the complainant had supported his first information report. The accused was examined under section 342, Cr.P.C. on 16-2-1999, whose statement was a bare denial and claimed false implication due to the reason that the complainant was indebted to his father for a sum of Rs.10,000 who was, according to the appellant, reluctant to pay the said debt and a false story was manufactured against the appellant. The piece of cloth obtained from the Shalwar of the minor was sent to laboratory for its chemical analysis on which the blood stains of human origin were detected. After hearing the arguments on either side and concluding the, trial, while believing the prosecution evidence, the appellant was convicted and sentenced as stated above.
Mr. Gohar Zaman Khan Kundi, Advocate appearing for the appellant submitted that the prosecution has failed to establish its case against the appellant and described it as a case of no evidence. He also submitted that there is no eye-witness to the occurrence and the complainant has not seen the crime with his own eyes. His syne submission was that the minor child has not been examined in the Court and, as such, the appellant has been deprived of his valuable right of cross-examining the child. He still further stated that the Court has not recorded the question put to the minor child in order to ascertain his in competency to be examined as a witness.
On the contrary, Malik Hamesh Gul Khan, Advocate appearing on behalf of the State, while defending the impugned judgment stated that the reasons advanced by the learned trial Court are well-founded and there is no misreading or non-reading of the evidence. The prosecution has successfully brought guilt home to the appellant and the judgment of the trial Court is not tainted with any vitiating factor so as to warrant interference by this Court.'
I have heard the rival arguments of both the adversaries and gone through the record with the assistance of the learned Counsel for the parties. So, far as the first contention of the learned Counsel for the appellant is concerned, that there is no public eye-witness to the occurrence, it is sufficient to say that the offences like the present one are never committed in view of the general public. For the commission of such an immoral offence, the delinquent makes arrangement or chooses a place which is secluded and out of the view of any outsider. In this case, the offence has been committed inside the shop of the appellant and obviously there was no likelihood of being viewed by any outsider. Soon after commission of the offence at 12-30 hours, the minor child ageing about 5/6 years came out crying and immediately narrated the unfortunate incidence to his father, who met him on the road outside their house. Keeping in view the extreme tender age of the victim, it can very safely be observed that the child narrated the incident so abruptly and spontaneously that there is no occasion to think that the story was fabricated and the implication of the appellant was the result of an afterthought. The occurrence has taken place at 12-30 hours and the report was made at 12-50 hours, i.e. within twenty minutes of the occurrence.
This is a case which fully attracts the rule of res gestae. The res gestae rule is that where a remark is made spontaneously and concurrently. It is defined as a matter incidental to main fact and explanatory of it, including acts and words which are so closely connected therewith as to constitute a part of transaction and without a knowledge of which main fact might not be properly understood. They are events themselves speaking through instinctive words and acts of participants; circumstances, facts and declarations which grow out of main fact are contemporaneous with it and serve to illustrate its character. Res gestae includes everything that may be fairly considered as an incident of event under consideration. It carries with it inherently a degree of credibility and will be admissible because of its. spontaneous nature "Res gestae" means literally thing or things happened and, -.therefore, to be admissible as exception to hearsay rule, words spoken, thought expressed and gestures made must all be so closely connected to occurrence or event in both time and substance as to be a part of the happening. It is a spontaneous declaration made by a person immediately after an event and before the mind has an opportunity to conjure a false story. It represents an exception to the hearsay rule.

8: Res gestae is a concept which as a matter of principle is employed in the English system of administration of criminal justice under the name of "res gestae". In our system of administration of justice, Article 19 of Qanune-Shahadat (P.O. No.Y of 1984) corresponding to section 6 of the Evidence Act of 1872, is an enacted provision of law under which statement made immediately after the occurrence under the influence of occurrence in order to characterize it and connecting therewith would be admissible under this article as "res gestae" evidence.

In the case before me, a child in the learning of alphabet being relieved of houndish instinct for a person animated by lust .has ~so immediately reported the incident to his father that in such promptitude even a grown up man 'would not have a sufficient time to conjure the facts motivated by any kind of malice. This child of 5/6 years of age, in my opinion, has not at all developed any faculty of mind, which should have a quality of concocting the events. Therefore, I am clear in my mind that the evidence of the father of the child is fully protected by section 19 of Qanun-e-Shahadat and the principle of res gestae, which can very safely be taken into consideration as an admissible evidence against the appellant.
So far as the non-recording of statement of the minor is concerned it is observed that the minor Nasir Gul was produced before the Court by the prosecution and was to be examined as a P W.8, but the learned trial Court keeping in view his minority put certain questions to him to which he could not reply rationally and the learned trial Judge who had the privilege of observing the child with his own eyes was satisfied that the child could not understand the proceeding. as he had not developed the mental maturity for the purpose. The learned trial Judge has, therefore, observed in his judgment that the minor had recognized and identified the appellant who was present in Court in custody and described him the real culprit who. had committed sodomy on him. I feel that due to the non-examination of the child, the appellant has not been prejudiced and if the prosecution wanted to manufacture artificial evidence against. the appellant, then it would have been more conducive to the purpose of prosecution to have produced the minor as a witness. It is an undeniable fact that children of such ages are succeptible to influence, suggestions, promises, inducements or even threats and such elements can very easily work as external influence. on children. It must not be forgotten that a child is peculiarly exposed to tire external influence, whether designed or accidental. Anyone knowing that a child is to appear as a witness in the Court of justice, if he is interested in his statement and has a chance of influencing it himself will almost certainly exert that influence. The child, as yet devoid of principles places great faith in the words of grownup people. So, if a grown person brings influence to bear on it, especially some time after the occurrence, the child will imagine that he has readily seen that he has been led to believe: Its brain is so soft that it receives immediately all impressions, it perceives and forgets a hundred things in an hour. Thus, the prosecution could certainly achieve the desired object from the mouth of the child by tutoring him against the appellant.
The other contention with regard to omission by the trial Court of recording the question to be put to the minor, I understand that it has no turning effect upon the evidence of prosecution in the circumstances of the instant case.
The further contention of the appellant's Counsel is that the Report of the Chemical Examiner shows that no semen was detected on the swabs sent to the chemical analysis. This objection finds a very easy answer that this is not the case of the prosecution that the appellant had ejeculated on the victim. In this respect, learned Counsel for the appellant was asked whether ejeculation is a necessary ingredient for the accomplishment of the offence under section 377, P.P.C., the learned Counsel fairly stated "no" -- but the simple penetration is sufficient. The factum of penetration is well-established by the bleeding anus and the positive report of the Chemical .Examiner. Thus, in the circumstances, the absence of Semen on the swabs would in no way destroy the case of the prosecution.
It was also as a last resort argued by the learned Counsel for the appellant that the appellant was involved in the instant case out of malice in order to digest Rs.10,000 which was outstanding against the appellant as a debt to his father: However, I have no inclination to accept this contention, because the area where the offence in hand has been committed is inhabited by such people who enter into series of murders on a very slight contemptuous remark. This obviously involve the honour of the family and no person would barter his honour for a sum of Rs.10,000 (it is also an unproved allegation). No father would stigmatize his child with such a derision and would reduce his child to an object of ridicule and contempt and would destroy his entire future.
In applying the principle of res gestae, I have the privilege to draw wisdom from the case of Muhammad Aslam Shah v. The State reported in 1993 PCr. LJ 704.
In view of the above discussion, I hold that the judgment of the trial Court is well-found and no disregard of any principle of appreciation of evidence has been found therein.
Resultantly, I find no substance in this appeal, which is hereby dismissed. However, the benefit under section 382-B, Cr.P.C., which is omitted by the trial Court while passing the impugned conviction, is extended to the appellant.

N.H.Q./480/P Appeal dismissed.

PCRLJ 2000 PESHAWAR HIGH COURT 793 #

2000 P Cr. L J 793

[Peshawar]

Before Shahzad Akbar Khan, l

KAZIM HUSSAIN --- Petitioner

versus

THE STATE and another---Respondents

Criminal Bail Application No. 177 of 1999, decided on 15th October, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324---Bail---Accused was directly charged in the F.I.R. lodged without any inordinate delay in which it was claimed to have identified the accused in the torch light---Motive for the commission of the offence was also attributed to the accused ; -Medical report had supported the version of the complainant as well as of the injured witness---Plea of alibi taken by accused could not outweigh the direct evidence against him and the same could be evaluated at the trial by the Court---Accused was, prima facie, linked with the offence with which he was charged---Bail was disallowed to accused in circumstances.

Ghulam Mahmood Sappal and Sanaullah Khan Gandapur for Petitioner.

S. Saeed Hassan Sherazi, A.A.-G. for the State.

Muhammad Waheed Anjum for the Complainant. .

Date of hearing: 15th October, 1999.

JUDGMENT

The petitioner, Kazirn Hussain, who was refused bail by the learned Civil Judge-II/Judicial Magistrate and the learned Sessions Judge, D.I. Khan, vide their orders, dated 18-6-1999 and 5-7-1999 respectively, has filed the instant bail application in case F.I.R. No.83, dated 17-5-1999 under section 324, P.P.C. of Police Station Paharpur, D.I. Khan.

The story disclosed by the complainant Shera son of Ghulam Shabbir in the F.I.R. is that on the eventful night at about 10-30 p.m. he alongwith his brother Fazalur Rehman and uncle Muhammad Ramzan were irrigating their fields, when 'in the meanwhile the petitioner appeared at the scene of occurrence duly armed with a shotgun and fired at them, as a result of which his brother Fazalur Rehman was hit and injured on his abdomen and arm, who fell down on the ground and the petitioner ran away. The complainant claimed that the petitioner was identified in the torch light. Net motive is the dispute over female relations. The occurrence was also stated to have been witnessed by the father of the complainant.
The learned Counsel for the petitioner contended that this is a night occurrence and the identification of the culprit is a serious question involved in the instant case. He further submitted that the medical report does not support the prosecution version on the point that several, injuries vary in their diameter and shape which, according to the learned Cunsel, do not appear to have been fired from one fire-arm. His syne submission is that no recovery of any kind of empty has been made from the scene of occurrence. He also criticized the evidence of the prosecution qua the witnesses, who are admittedly related to the injured person and there is no independent ocular witness. He was also critical of the prosecution evidence on the point that as many as fifteen injuries were present on the body of the victim and only one accused is charged. It was also pleaded that the investigation is complete arid the petitioner is no more required for investigation. The learned Counsel has also produced certain photostat copies of the affidavits of some local persons and also statements of three persons recorded under section 164, Cr.P.C., which suggests that the petitioner was present with them on the eventful night and, therefore, his involvement in the instant case is false.
On the contrary, the learned Assistant Advocate-General for State and learned Counsel for the complainant, vehemently opposed the bail application and submitted that the petitioner is directly charged in the F.I.R. He was identified in the light of the torch and there was a motive for the commission of the offence as has been narrated in the F.I.R. Moreover, the offence falls under the prohibitory clause of section 497, Cr.P,C. and, as such, there is a prima facie case made out against the petitioner which disentitle him to the concession of bail.
I have heard the rival arguments of both the parties and gone through the record. The petitioner is directly charged in the F.I.R., which in the circumstances of the case, is lodged without any inordinate delay and his identification has also been claimed in the torch-light. The motive for the commission of the offence has also been attributed to the petitioner. I have also examined the medical report which, prima facie, supports the prosecution case. It reveals that almost at four different points on the body of the victim, presence of the pellets have been observed, which are stated as follows:--

(1) One pellet observed underneath the s& at the level of 8th, costal cartilage in front of chest on left side.

(2) One pellet observed underneath the skin on chest in front (left side) at the level of 10th costal cartilage.

(3) One pellet observed under the skin over the left H.C. 2" below the above one.

(4) One pellet observed underneath the skin over the left side of abdomen 2" below and slightly tatral to the pellet No.3.

It clearly suggests that the injuries were caused with the shotgun which has peen mentioned by the complainant in the F.I.R. Thus, the medical report runs congruent to the version of - the complainant. The statement of the injured person has been recorded who also has charged the petitioner for the offence. The Investigating Officer has recovered some blood-stained earth and a torch with a couple of cells from the place of occurrence, which were taken into possession by him through a recovery memo.

In cases for causing injuries to a person, normally the statement of the injured supported by the medical evidence is sufficient for the- formation of a belief that the accused is, prima facie, linked with the offence he is charged with. In the instant case, the medical report duly supports the version of the complainant and the injured P. W . and there is no contradiction of such a nature which, in any way, has a tendency to under mind the evidentiary value of the eye-witnesses. The plea of the petitioner that he was present at some other place, for which the statements/affidavits of some local persons have been recorded cannot, in any manner, outweigh the direct evidence against the petitioner, and such statements or affidavits would be scanned by the trial Court after recording the evidence of both the parties and evaluating the same on the touchstone of the principle governing the appreciation of evidence.
In the present case, there exist reasonable grounds to believe that the accused is, prima facie, linked with the offence of attempting at the life oft the injured Fazal Rehman.
In view of the above discussion, I have no inclination to admit the petitioner on bail. Resultantly, this bail application is dismissed. However, since it has been brought to my notice that the investigation is complete, therefore, the prosecution is directed to submit complete challan in the Court concerned within a fortnight and the trial Court is also directed to conclude the trial within five months. The office shall transmit record of the case back to the Court concerned forthwith.

NJJ.QJ482/P Bail refused.

PCRLJ 2000 PESHAWAR HIGH COURT 814 #

2000 P Cr. I. J 814

[Peshawar]

Before Jawaid Nawaz Khan Gandapur, J

MUSLIM KHAN---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1204 of 1999, decided on 11th November, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.419/420/411---Bail, grant of--Accused admittedly had no case for bail at all on merits---Case of accused, however, did not fall under the prohibitory clause of S.497(1), Cr.P.C. and he was, therefore, admitted to bail.

Muhammad Asif Khan for Petitioner.

Kh. Azhar Rashid, Asstt. A.-G. for the State.

Date of hearing: 11th November, 1999.

PCRLJ 2000 PESHAWAR HIGH COURT 823 #

2000 P Cr. L J 823

[Peshawar]

Before Nasirul Mulk and Muhammad Azam Khan, JI

MEHBOOB ALI alias MAQBALI---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 171 of 1994, decided on 21st October, 1999.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Occurrence had taken place in broad daylight---Eye-witnesses were independent and natural witnesses having no motive for the false implication of accused-and their testimony was consistent and in conformity with the circumstantial evidence---Crime empties secured from the place of occurrence had matched with the Kalashnikov recovered from the accused which had further corroborated the ocular evidence--Conviction and sentence awarded to accused by Trial Court were upheld in circumstances.

1999 SCMR 329; and 1982 SCMR 531 ref.

Abdul Fayaz for Appellant. Qasim Jan, Law Officer for the State. Jehanzeb Rahim and Abdur Rauf Gandapur for the Complainant.

Dates of hearing: 22nd and 23rd September, 1999.

PCRLJ 2000 PESHAWAR HIGH COURT 828 #

2000 P Cr. L J 828

[Peshawar]

Before Abdur Rauf Khan Lughmani and Shahzad Akhar Khan, JJ

SAAD ULLAH JAN---Appellant

versus

THE STATE and another---Respondents

Criminal Appeal No.61 of 1998, decided on 18th November, 1999.

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

----Arts. 89 & 128---Ordinance---Efficacy---Ordinance is a temporary legislation and it loses its force and efficacy on the expiration of its legal period envisaged by the Constitution itself and, as such a marked distinction exists between a "temporary enactment" and a "permanent enactment".

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

----S. 302(b)---Suppression of Terrorist Activities -(Special Courts) Act (XV of 1475), S.4---Suppression of Terrorist Activities (Special Courts) (Amendment) Ordinance (XL of 1995), Preamble---Jurisdiction of Special Court---Ordinance No.XL of 1995 introducing amendment in the Schedule of Suppression of Terrorist Activities (Special Courts) Act. 1975 covering the offence allegedly committed by the accused, was not in force during his trial---Trial of accused by Special Court, therefore. was without jurisdiction and coram non judice---Conviction and sentence of accused were consequently set aside and the case was remanded to Sessions Judge concerned for de novo trial in accordance with law.

Government of Punjab v. Ziaullah Khan 1992 SCMR 602; Muhammad Arif v. The State 1993 SCMR 1589; Younus Khan v. The State 1990 PCr.LJ 1719 and PLD 1989 Lah. 554 ref.

Dost Muhammad Khan for Appellant. Syed Saeed Hassan Sherazi, Asstt. A.-G. for the State. War Abbas Zaidi for the Complainant.

Date of hearing: 29th September, 1999.

PCRLJ 2000 PESHAWAR HIGH COURT 834 #

2000 P Cr. L J 834

[Peshawar]

Before Jawaid Nawaz Khan Gandapur, J

ZAFAR IQBAL---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1262 of 1999, decided on 10th November, 1999

Criminal Procedure Code(V of 1898)---

----S. 497--Penal Code (XLV of 1860), S.489-B/489-C---Bail, grant of--Applicability of S.489-B, P.P.C., to the facts and circumstances of the case could be determined at the time of the trial---Case against accused at present, prima facie, was covered by S.489-C, P.P.C., which did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Accused was admitted to bail in circumstances.

Sher Ahmad v. The State PLD 1993 Pesh. 104; Sawab Khan v. The State 1995 PCr.LJ 1351 and 1996 PCr.LJ 815 ref.

Muhammad Riaz Yousafzai for Petitioner.

Kh. Azhar Rashid, A.A. -G. for the State.

Date of hearing: 10th November, 1999.

PCRLJ 2000 PESHAWAR HIGH COURT 837 #

2000 P Cr. L J 837

[Peshawar]

Before Mian Shakirullah Jan and Talat Qayum Qureshi, JJ

TARIQ MEHMOOD---Appellant

versus

THE STATE---Respondent

Jail Criminal Appeal No. 3 with Murder Reference No. l of 1998, decided on 16th November, 1999.

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

----S. 265-E---Penal Code (XLV of 1860), S.302(a)---Plea of accused--Court under S.265-E, Cr.P.C. has been given a discretion/option to record or not to record conviction of accused on his having pleaded guilty to the charge framed against him and in case conviction is not recorded Court may record evidence in the case.

Habibur Rehman v. The State 1997 PCr.LJ 1930; Loung v. The State 1976 PCr.LJ 204; State v. Jehandad Khan 1992 PCr.LJ 592 and Akbar v. The State Criminal Jail Appeal No .134 of 1974 ref.

(b) Penal Code (X,Y of 1860)---

----302(a)---Criminal Procedure Code (V of 1898), S.265-E---Convictipn recorded on the plea of accused---Accused had been convicted under S.302(a), P.P.C. and sentenced to death as Qisas by the Trial Court on his having pleaded guilty to the charge framed against him---Accused according to record, no doubt, had made a voluntary confession, but it was yet to be seen if the same was true or not---Trial Court in order to satisfy itself about such nature of the confession had referred to medical report and the evidence collected by the Investigating Officer available on record, but said evidence having not been recorded in the Court could not be considered as a legal evidence against the accused---After recording evidence and taking into consideration the necessary aspects of the case Trial Court might have not awarded the impugned punishment to the accused---Conviction and sentence of accused were consequently set aside and the case was remanded to Trial Court for de novo trial by recording evidence and fresh decision in accordance with law.

Habibur Rehman v. The State 1997 PCr.LJ 1930; Loung v. The State 1976 PCr.LJ 204; State v. Jehandad Khan 1992 PCr.LJ 592 and Akbar v. The State Criminal Jail Appeal No. 134 of 1974 ref.

Ghulam Younus Khan Tanoli for Appellant.

Qazi Ghazanffar, A.A.-G. for the State.

Ch. Afzal Tahir for the Complainant.

Date of hearing: 16th November, 1999.

PCRLJ 2000 PESHAWAR HIGH COURT 844 #

2000 P Cr. L J 844

[Peshawar]

Before Abdur Rauf Khan Lughmani and Shahzad Akbar Khan, JJ

JAWAIDUR REHMANPetitioner

versus

MUHAMMAD DARAZ KHAN and 4 others---Respondents

Criminal Miscellaneous Quashment Petition No-7 of 1998, decided on 26th October, 1999.

Penal Code (XLV of 1860)---

----S. 302/324/148/149---Criminal Procedure Code (V of 1898), Ss. 169 & 561-A---Petition for quashing of release of accused by police on bail under S.169,. Cr.P.C.---Accused were directly charged in the F.I.R. for double; murder---Occurrence had taken place. in broad daylight and the same was; supported by eye-witnesses, medical evidence and recovery of crime-empties, which could not be termed as deficient evidence as envisaged by S: 169, Cr.P.C.---Investigating Officer had recorded the statements of certain;: procured persons at the instance and choice of the accused and had virtually pre-empted the function of the Court & be was not justified in overweighing the statements of defence witnesses vis-a-vis the prosecution evidence--Investigating Officer after having recorded the defence evidence, should have left the matter to the Court for assessing and evaluating the evidentiary, and, intrinsic value of the evidence of both sides---Accused were not even in, custody at the time when they were given the benefit of 5.169, Cr.P.C. and their release on bail by the Investigating Officer was patently unwarranted, particularly when they were under the protective bail granted by a competent Court---Release of accused on bail by the Investigating Officer being illegal was quashed accordingly. [pp. 848, 849] A, B, C, D & E

1997 SCMR 1503; PLD 1985 SC 62; Criminal Miscellaneous (Quashment) No.26 of 1997, decided on 27-5-1999; Criminal Petition No. 137 of 1999; 1999 PCr.LJ 469 and PLD 1995 SC 423 ref.

Pir Liaqat Ali Shah for Petitioner. Dost Muhammad Khan for Respondents. Muhammad Khan for the State.

Date of hearing: 26th October, 1999.

PCRLJ 2000 PESHAWAR HIGH COURT 865 #

2000 P Cr. L J 865

[Peshawar]

Before Mian Muhammad Ajmal and Sardar Muhammad Raza Khan, JJ

HAZRAT BILAL---Appellant

versus

THE STATE and another---Respondents

Criminal Appeal No.43 of 1998, decided on 27th May, 1999.

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

----Art. 43---Confess.ion---Consideration of proved confession affecting person making it and others-jointly undertrial for same offence---Application and scope---Principles.

Article 43 of Qanun-e-Shahadat, inadequately copies from section 30 of Old Evidence Act .provides an exception to such general rule of law of evidence which once was described as a "needless tampering with the wholesome rule of English Law, that a confession is only evidence against the person who makes it". Being an exception to the general rule a confession becomes admissible against such other person as well who is involved by the maker, in addition to his ownself.

This exception to the general rule applies only when there are more persons than one involved in a criminal case, when they are being tried jointly, when the joint trial is permissible and lastly, when the joint trial is for the same offence or for; its abetment or attempt. If any of such conditions is not fulfilled, a confession cannot be taken into consideration against any other person except the maker thereof. The most important pre-requisite for applying this exceptional rule of the evidence is that the maker of, the confession and such other person-who is involved by the maker must have been tried jointly for the same offence. The words used as "being tried jointly" are worth consideration wherein the word beans is of paramount importance giving an indication of continuity where two persons are jointly tried. Meaning thereby, that the joint trial of the two persons must be one process in continuity and the confession shall not be capable of being used when the trial does not continue to be one.

Flowing from such principle, there is yet another idea that if the maker of the statement is dead and, therefore, not on trial with the person against whom it is sought to be given in evidence, the exceptional rule shall not be applicable. There can be another occasion as well when the maker of the confession though not dead was yet tried singularly, for the reason may be, that the person whom he involved in his confession, was absconding at the time of first trial. In these circumstances, when the second person is apprehended and tried subsequently, the accused of the first trial i.e. the maker of the confession must be examined as a witness in the second case.

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

----Ss. 302/109 & 324/109---Qanun-e-Shahadat (10 of 1984), Art.43--Appreciation of evidence---Accused and co-accused in the case were never tried jointly---By the time the accused was being tried, co-accused, maker of the confession, had already been executed and was dead---Neither could both the accused persons be tried jointly, nor could the co-accused be examined as a witness in the second trial where the accused was being tried---Most necessary ingredient of the joint trial envisaged by Art.43 of Qanun-eShahadat, 1984, therefore, could never be fulfilled in the case and the confession made, by co-accused involving the accused could not be used as a circumstantial evidence against the accused of the second trial--Consideration of the confessional statement of co-accused against accused in the second trial where he was not being jointly tried with co-accused was unlawful---Parties had a blood feud and when involved in a murder case, the abscondence of accused could have been natural either out of fear or out of sheer desire to remain away from the, clutches of police---Motive, alone, in the absence of evidence connecting the accused with the commission of the offence, could not lead to conviction and the same was true in the case of abscondence---Accused . was acquitted in circumstances.

Rajhumal Kundanmal v. Emperor AIR 1937 Sindh 218; Dengo Kandero v. Emperor AIR 1938 Sindh 94 and Hakim Ali v. The State PLD 1960 Lah. 31 ref.

M. Zahoorul Haq, Bar-at-Law for Appellant.

Complainant in person. Qasim Jan, O.S.D. for the State.

Dates of hearing: 24th and 25th March,, 1999.

PCRLJ 2000 PESHAWAR HIGH COURT 883 #

P Cr. L J 883

[Peshawar]

Before Jawaid Nawaz Khan Gandapur, J

Mst. NOOR JEHAN and another---Petitioners

versus

THE STATE and another---Respondents

Criminal Miscellaneous No.715 of 1999, decided on 4th November, 1999

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

----S. 497(5)---Penal Code (XLV of 1860), S.377---Cancellation of bail--Reasonable grounds, prima facie, did not exist for believing that the accused had committed the offence charged with---Sessions Court by means of a speaking order had given sufficient and convincing reasons for granting bail to accused and the discretion judiciously exercised by the said Court did not warrant any interference by High Court---Petition for cancellation of bail was dismissed accordingly.

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

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

----S. 497(5)---Penal Code (XLV of 1860), S.377---Cancellation of bail--Principle---Provisions of S.497(5), Cr.P.C. being not at all punitive in nature, strong' and exceptional grounds are needed for cancellation of bail granted by a competent Court---No legal compulsion exists even for cancellation of bail granted in cases punishable with death, imprisonment for life or ten years' R.I.

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

Mian Iqbal Hussain for Petitioner.

PCRLJ 2000 PESHAWAR HIGH COURT 891 #

P Cr. L J 891

[Peshawar]

Before Jawaid Nawaz Khan Gandapur, J

MUHAMMAD AKRAM alias LADO---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous/Bail Application No.485 of 1999, decided on 17th June, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4---Control of Narcotic Substances Act (XXV of 1997), S.6/7/8/9--Bail, grant of---Assistant Sub-Inspector of Police was not competent to register the case against the accused under Ss.6, 7, 8 & 9 of the Control of Narcotic Substances Act, 1997 in view of the provisions of its S.21 of the said Act---Accused, thus, would be deemed to have been charged only for the offence having been committed under Art.3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 for having been found in possession of 2-1/2 Kgs. of Charas which did not fall under the prohibitory clause of S.497(1), Cr.P.C.---Bail was allowed to accused in circumstances.

Fazal Elahi for Petitioner.

Kh. Azhar Rashid, Asstt. A.-G. for the State.

Date of hearing: 17th June, 1999.

PCRLJ 2000 PESHAWAR HIGH COURT 905 #

2000 P Cr. L J 905

[Peshawar]

Before Jawaid Nawaz Khan Gandapur, J

SABIT SHAH---Petitioner

versus

JAMAL SHAH and another---Respondents

Criminal Miscellaneous/Bail Application No. 1096 of 1999, decided on 21st September, 1999.

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

----S. 497---Bail---Interference with order of lower Court when justified--Principles stated.

Mere possibility of recording different view on the basis of the available record would not be a sufficient ground for interference. Interference would however be justified only when there is non-appreciation of evidence, collected by the Investigating Officer, which may lead to grave miscarriage of justice or where the order of the Lower Court is absolutely artificial which might create shocking impression on a person with ordinary prudence or where there is overwhelming evidence, collected by the Investigating Officer, which might lead to the irresistible conclusion, regarding the involvement of the accused in the commission of the offence charged with.

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

----S. 497---Penal Code (XLV of 1860), S.324/34---Bail---Occurrence had taken place at day time---Complainant had charged the accused for having effectively fired at him injuring on the vital part of his body---F. I. R. in the case had been promptly lodged and the question of. false implication or substitution of accused did not arise---Complainant also was not shown to have any motive for wrong involvement of accused in the crime---Bail application wad dismissed in limine in circumstances.

Ijaz Ali Khan v. The State 1968 SCMR 1168 ref.

Abdul Karim Khan for Petitioner.

PCRLJ 2000 PESHAWAR HIGH COURT 910 #

2000 P Cr. L J 910

[Peshawar]

Before Jawaid Nawaz Khan Gandapur, J

ABDUR REHMAN alias KHAN---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous/Bail Application No. 1099 of 1999, decided on 21st September, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4--Bail---Large quantity of Charas and heroin was allegedly recovered from the possession of accused---Report of Chemical Examiner regarding the said narcotics was in positive---Sessions Court had declined bail to accused by means of a speaking order on quite convincing grounds---Reasonable grounds were available for believing the accused guilty of the commission of the offence with which he was charged---Accused was refused bail in circumstances.

Ijaz Ali Khan v. The State 1968 SCMR 1168 ref.

2000 P Cr. L J 945

[Peshawar]

Before Mrs. Khalida Rachid, J

SUCHA GUL --- Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous Bail Application No.1068/69 of 1999, decided on 6th December, 1999.

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

----Ss. 51 & 9(c)---Criminal Procedure Code (V of 1898), Ss.496 & 497--Prohibition on grant of bail---Section 51 of the Control of Narcotic Substances Act, 1997 has not only excluded the applicability of Ss.496 & 497, Cr.P.C, but has also excluded any class of people from availing bail if charged under S.9(c) of the said Act.

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

----S. 497---Control of Narcotic 'Substances Act (XXV of 1997), Ss.6/7/8/9(c) & 51---Customs Act (IV of 1969), S.156(1)(89)/157/178/26/ . 2(s)---Bail---Accused having been charged under S.9(c) of the Control of Narcotic Substances Act, 1997 was debarred by S.51 of the said Act from availing bail---Recovery of contraband "Charas" from the accused by the seizing Agency through its official, in the absence of any enmity or other reason, could not be doubted---Seizing Agency could not possibly extract sample from each and every slab of 710 Kgs. of "Charas" allegedly recovered from the accused---Report of Chemical Examiner regarding the said "Charas" was positive---Court had no soft corner for the persons who trafficked in narcotics and who cared least for the younger generation of the nation and had always brought bad name to the 'Country in the international community by supplying such prohibited substances beyond the border---Bail was declined to accused in circumstances.

Abdur Rauf Gandapur and Khan Akhtar Afridi for Petitioner.

Hafiz Aman Khan for the State.

Date of hearing: 6th December, 1999.

PCRLJ 2000 PESHAWAR HIGH COURT 949 #

2000 P Cr. L J 949

[Peshawar]

Before Muhammad Azam Khan, J

TAHIR---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1458 of 1999,, decided on 6th January, 2000:

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9---Prohibition (Enforcement of Hadd) Order (4 of 1979), . Art.3/4/24---Bail, grant of---Accused having been involved by the local police for the offences under two separate statutes, the law providing lesser punishment was to be taken into consideration for the purpose of bail---Section 51 of the Control of Narcotic Substances Act, 1997, had, however, barred the grant of bail in cases punishable only with death and in other suitable cases bail could be granted---Manner in which heroin was recovered from the possession of accused was arguable---Bail was allowed to accused in circumstances.

1989 PCr.LJ 599 and 1999 SCMR 1271 ref.

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

----S. 51---No bail to be granted in respect of certain offences---Bar contained in S.51 of the Control of Narcotic Substances Act, 1997, is applicable only to cases where the offence is punishable with death---Bail can, however, be granted in other suitable cases.

1999 SCMR 1271 , ref.

Masoodur Rehman for Petitioner.

Muhammad Tariq Kakar and Tariq Javed, A.A.-G. for the State.

Date of hearing: 6th January, 2000.

PCRLJ 2000 PESHAWAR HIGH COURT 953 #

2000 P Cr. L J 953

[Peshawar]

Before Abdur Rauf Khan Lughrnani, J

SHAUKAT HUSSAIN---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous Bail Application No.235 of 1999, heard on 20th

December, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3--Bail, grant of---Inspector C.I.A. had not been authorized by the Superintendent .of Police to investigate the case---Irrespective of the quantity of contraband heroin recovered from the accused, his case was, therefore, arguable for the purpose of bail--=Accused was released on bail in circumstances.

Mahboob Ali alias Booba v. The State 1997 PCr.LJ 942 ref, Allah Nawaz Khan for Petitioner.

S. Saeed Hassan Sherazi, A.A.-G. for the State.

Date of hearing: 20th December, 1999.

PCRLJ 2000 PESHAWAR HIGH COURT 1000 #

2000 P Cr. L J 1000

[Peshawar]

Before Talat Qayum Qureshi, J

SHAHZAD and 2 others---Applicants

versus

THE STATE --- Respondent

Criminal Miscellaneous No.399 of 1999, decided on 21st February, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.382/411/34---Bail---Accused on account of incriminating recoveries having beeir effected from them were, prima facie, connected with the commission of the offence---One accused had made an inculpatory confessional statement implicating the other accused in the case---School leaving certificate showing the accused below the age of 16 years appeared to be bogus---Medical Officer and Investigating Officer both had found the accused more than 16 years old ---Challan of the case was ripe for submission in the Court---Bail was declined to accused in circumstances.

Syed Shabbir Hussain Shah for Applicants. Qazi Muhammad Ghazanfar, A.A.-G. for the State. S. Amjad Shah for the Complainant.

Date of hearing: 21st February, 2000.

PCRLJ 2000 PESHAWAR HIGH COURT 1167 #

2000 P Cr. L J 1167

[Peshawar]

Before Talat Qayum Qureshi, J

RIAZ SHAH---Petitioner

versus, MUBARAK SHAH and another---Respondents

Criminal Miscellaneous No.24 of 2000, decided on 14th March, 2000.

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

----S. 497---Penal Code (XLV of 1860), S.324---Bail---Cross-cases--Existence of cross-F.I.Rs. or cross-cases between the parties is no ground for grant of bail and accused is not entitled to bail as a matter of right on such ground.

Nasir Muhammad Waseem and another v. The State 1992 SCMR 501; Qamar Abbas and 2 others v. Sohail Siddique and another 1998 MLD 1132 and Allah Wisaya and 2 others v. The State 1980 PCr.LJ 105 ref.

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

----S. 497---Penal Code (XLV of 1860), S.324---Bail---Accused had been charged in the promptly lodged F,I.R. for the commission of the offence and the accusation against him was supported by the medical evidence and evidence of incriminating recoveries in the case---Crime empty secured from the place of incident had matched ' h the pistol recovered at the instance of accused---Registration of a cross-case also showed that the occurrence had taken place---Offence allegedly committed by the accused was hit by the prohibitory clause of S.497(1), Cr.P.C.---Bail was declined to accused in circumstances.

Nasir-Muhammad Wasan and another v. The State 1992 SCMR 501; Qamar Abbas and 2 others v. Sohail Siddique and another 1998 MLD 1132 and Allah Wisaya and 2 others v. The State 1980 PCr.LJ 105 ref.

Muhammad Ayub Khan tanoli for Applicant.

Ghulam Younas Khan Tanoli for the State.

Masoodur Rehman Tanoli for the Complainant.

Date of hearing: 14th March, 2000.

PCRLJ 2000 PESHAWAR HIGH COURT 1171 #

2000 P Cr. L J 1171

[Peshawar]

Before Mian Shakirullah Jan and Talat Qayum Qureshi, JJ

MALIK MUHAMMAD IQBAL---Petitioner

versus

SYED ABID HUSSAIN SHAH and 9 others---Respondents

Criminal Miscellaneous No.59 of 2000, decided on 7th March, 2000

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

----S. 497(5)---Penal Code (XLV of 1860), S.302/324/148/149--Cancellation of bail---Accused having been charged for the abetment of the offence only, their involvement in the conspiracy had to be proved at the trial and their case required further inquiry---Accused being not present on the spot at the time of occurrence, their case stood at a lower footing than the case of accused persons instigating their companions to commit the crime being themselves present on the spot---Prosecution witnesses, despite having the knowledge of conspiracy being hatched did not report the matter to police immediately and kept mum for three days for which no explanation was available on record---Sessions Court had granted bail to accused after appreciating the material available on record' exercising its discretion properly in accordance with the guidelines provided by superior Courts and its order was neither perverse nor arbitrary---No strong and exceptional grounds were available requiring cancellation of bail---Petition was dismissed in limine accordingly.

Federation of Pakistan through Ministry of Law and another v. Gul Hassan Khan PLD 1989 SC 633; Muratab Ali v. State 1997 PCr.LJ 1183; Kabeer v. The State 1998 PCr.LJ 1311; Said Amanullah Shah v. The State and another PLD 1996 SC 241; Muhammad Khan v. Maula Bakhsh 1998 SCMR 570; Iftikhar Ali v. The State 1998 PCr.LJ 2022; Tariq Bashir and 5 others v. The State PLD 1995 SC.34 and Government of Sindh through The Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1283 ref.

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

----S. 302/324/148/149---Appreciation of evidence---Belated statements of witnesses---Credibility of evidence is looked with serious suspicion if the statement of a witness is recorded under S.161, Cr.P.C. with delay without offering any plausible explanation.

Muhammad Khan v. Maula Bakhsh 1998 SCMR..570 and Iftikhar Ali v. The State 1998 PCr.LJ 2022 ref.

Masood-ur-Rehman Tanoli for Petitioner

Date of hearing: 7th March, 2000

PCRLJ 2000 PESHAWAR HIGH COURT 1215 #

2000 P Cr. L J 1215

[Peshawar]

Before Sardar Muhammad Raza, J

BASHIR AHMED and another---Petitioners.

versus

FAZ.LE GHAFFAR and 2 others---Respondents

Criminal Miscellaneous (Quashment' Petition) No.172 of 1998, decided on

7th March, 2000.

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

----Ss. 200 & 561-A---Penal Code (XLV of 1860), S.419/420/468/471/34--Quashing of complaint---Suit for declaration, permanent injunction and possession, two ladies, during pendency of such suit filed application for impleading them as defendants which application was accepted. and they were impleaded---Plaintiffs found that special attorney of said ladies was not validly appointed attorney and that power of attorney on behalf of the ladies was a fictitious and, forged document---Plaintiffs/respondents did not agitate matter before Civil Court but instead filed complaint under 5.200, Cr.P.C... charging attorney under S.419/420/468/471/34, P.P.C.---Accused person (attorney) filed petition for quashing the complaint---Validity---If some V forgery was committed during pendency of a suit, party aggrieved would have two-fold remedy, one in Civil Court and the other in Criminal Court, but any such thing arising in a Civil Court should first be settled in that Court and if the Civil Court eventually affirmed commission of forgery, it could be agitated before a Criminal Court as well---If such procedure was not followed, Criminal Court would be called upon to adjudicate upon a document which was or which ought to have been subject-matter of a civil suit---Now observance of such procedure was likely to cause harassment to opposite-party which might not be able to pursue its civil litigation under influence of a criminal course followed side by side---Possibility of forgery could not also be excluded at that stage which was premature ---Quashment, in circumstances, would not serve ends of justice because proceedings as such were not void either---Better course for plaintiffs in civil suit would be to file a replication to written statement wherein they could challenge power of attorney given to the ladies---Court would then frame an issue to that effect and could give its decision alongwith other issues in the suit--Criminal proceedings initiated through complaint under S.200, Cr.P.C. would remain pending till civil suit was finally decided.

Mian Iqbal Hussain for Petitioner

Mrs. Qamar Nisa for the State.

1216 PAKISTAN CRIMINAL LAW JOURNAL [Vol. XXXIII

Date of hearing: 7th March, 2000.

PCRLJ 2000 PESHAWAR HIGH COURT 1220 #

2000 P Cr. L J 1220

[Peshawar]

Before Mian Muhammad Ajmal, CJ

SIRAJ and another---Petitioners

versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1526 of 1999, decided on 16th February, 2000.

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

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Accused persons alongwith absconding accused armed with lethal weapons attacked complainant party and killed complainant's father---Accused, though had been charged for ineffective firing on complainant, but father of complainant was hit and killed on the spot by fatal firing of their absconding brother--Not material at such a stage to see as to whose fire hit whom as the common attack launched by accused alongwith their absconding accused had indicated their common intention---Every accused in circumstances would be liable for criminal act as if it was done by hits alone---Role of ineffective firing of accused would not make their case to be of further inquiry---Motive of occurrence had also reflected highhandedness of accused party---Reasonable grounds to believe existed that accused were guilty of non-bailable offence as the case against them fell within prohibitory clause of 5.497, Cr.P.C.---Accused were not entitled to concession of bail, in circumstances.

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

----S. 497(2)---Further inquiry---Case of further inquiry under S.497(2), Cr.P.C. could only be pressed into service when it was found either by Police Officer or Court that no reasonable grounds existed to hold that accused was guilty of non-bailable offence.

1985 SCMR 382 ref.

A. Latif Afridi and Jan-e-Alam for Petitioners.

Imtiaz Ali, Addl. A.-G. for the State.

Khushdil Khan Muhammad for the Complainant.

Date of hearing: 16th February, 2000.

PCRLJ 2000 PESHAWAR HIGH COURT 1222 #

2000 P Cr. L J 1222

[Peshawar]

Before Sardar Muhammad Raza, J

NAUROZ KHAN alias TOUR---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.42 of 2000 decided on 8th March, 2000.

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

----Ss. 76 & 74---Prohibition (Enforcement of Hadd) Order (4 of 1979) Art.3/4---Overriding effect of the Act---Control of Narcotic Substances Act, 1997 is the latest and more exhaustive law on the subject of Narcotics as compared- to Prohibition (Enforcement of Hadd) Order, 19')9 and by virtue of its S.76 read with S.74 its provisions shall have effect notwithstanding anything contained in any other law for the time being in force including the Prohibition (Enforcement of Hadd) Order, 1979.

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

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4--Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Bail---Case had been registered against the accused under Art.3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 for the alleged recovery of 37 grains of heroin from him---Control of Narcotic Substances Act, 1997, being the latest and exhaustive law on the subject of narcotics having overriding effect, Investigating Officer ought to have applied S.9 of the said Act instead of Art.3/4 of the Prohibition (Enforcement of Hadd) Order, 1979---Case against accused, therefore, was to be dealt with under S.9 of the Control of Narcotic Substances Act, 1997---Recovery of 37 grams of heroin being an offence under S.9(c) of the aforesaid Act, the same was excluded from the mischief of its S.51(l) and also did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Accused was admitted to bail in circumstances.

Noor Alam Khan for Appellant.

Jamil Qamer, Asstt. A.-G. for the State.

Date of hearing: 8th March, 2000.

PCRLJ 2000 PESHAWAR HIGH COURT 1225 #

2000 P Cr. L J 1225

[Peshawar]

Before Sardar Muhammad Raza, J

WARIS KHAN---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1607 in Criminal Miscellaneous Bail Application No. 1364 of 1999, decided on 6th March, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4--Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 21---Bail, grant of---No search warrant was obtained by S.H.O. before entering into house of the accused---Station House Officer of Police Station had not at all recorded grounds and basis of his information and reasons as to why he avoided to obtain search warrant---Officer of Police not below the rank of Sub-Inspector, could enter into someone's house under provisions of S.21 of Control of Narcotic Substances Act, 1997 without warrant for search only when he was satisfied from his personal knowledge or information that any narcotic substance was kept or concealed in that premises; and if he initiated to obtain a warrant for search or arrest, accused would have the opportunity for concealment of evidence or for escape---Such mandatory provision of law was not resorted to by Police Officer neither before nor immediately after taking the action---Effect--Strong presumption in such a case would be that no circumstances existed at all to empower Police Officer to avoid obtaining search warrant---Accused, in circumstances, was entitled to be released on bail till the Police Officer would justify his action during trial.

Pir Bakhsh Mehtab for Applicants.

Jamil Qamar, Asstt. A.-G. for the State.

Date of hearing: 6th March, 2000.

PCRLJ 2000 PESHAWAR HIGH COURT 1229 #

2000 P Cr. L J 1229

[Peshawar]

Before Qazi Muhammad Farooq, C. J. and Nasirul Mulk, J

NAIK MUHAMMAD ---Accused/Petitioner

versus.

THE STATE and another---Respondents

Criminal Miscellaneous No.943 of 1999, decided on 16th November, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/324/148/149---Bail, grant of---Death of deceased was traceable to firing made by co-accused while firing attributed to accused was found ineffective---Two co-accused charged with same role having been allowed bail by Court, principle of consistency was fully attracted to case of accused---Case against accused being of further enquiry, he was admitted to bail in circumstances.

Safirullah Khan for Petitioner.

Ijaz Muhammad. Khan, Asstt. A.-G. for the State.

Attaur Rehman for the Complainant.

Date c, hearing: 16th November, 1999.

PCRLJ 2000 PESHAWAR HIGH COURT 1235 #

2000 P Cr. L J 1235

[Peshawar]

Before Sardar Muhammad Raza and Mrs. Khalida Rachid, JJ

HUMAIRA and 2 others---Appellants

versus

HAMIDULLAH and another---Respondents

Criminal Revision No.118 of 1994 converted into Criminal Appeal No.103 of 2000, decided on 28th March, 2000.

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

---Ss, 309 & 310(1---Qatl-e-Amd---Waiver and compounding of Qisas in Qatli-Amd---Courts not supposed to make inference---Courts in questions of compromise and waiver cannot and are not supposed to make inference when the person involved does not at all appear before the Court to make any statement to that effect.

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

----S. 302(a), (b) & (c)---Criminal Procedure Code (V of 1898), S.439--- Revisional jurisdiction---Enhancement of sentence--Conviction recorded under S.302(a), 302(b), or 302(c), P.P.C. shall always be deemed to have been recorded under S.302, P.P.C. and the difference in the subsections- is that of the quantum of sentence alone which prayer can be covered by filing a revision petition for enhancement of sentence.

----Ss. 302(c) & 302(b)---Criminal Procedure Code (V of 1898), S.439--- Appreciation of evidence---Sentence, enhancement of ---kevision petition filed by the legal heirs of the deceased for enhancement of sentence of accused challenging his conviction recorded under S.302(c), P.P.C. being within limitation provided for filing the appeal, the same was converted into appeal for the purpose of disposal---Eye-witnesses being been related to both the parties chances of false implication of accused due to ulterior motive were totally excluded particularly when they had no enmity with him--Ocular testimony in such circumstances did not require any corroboration, however, it was strongly corroborated by the promptly lodged F.I.R., medical evidence, recovery of crime empties from the spot and three months' abscondence of accused---Statement of the complainant under 5.164, Cr.P.C. having been obtained after he had been won-over by the accused was neither admissible nor true being the statement of a dishonest person who as an eyewitness had absolved the real culprits and involved someone at the instance of others---Abandonment of the complainant had not at all affected the prosecution case which had been fully proved by other eye-witnesses--Conviction of accused under S.302(c), P.P.C. was altered to S.302(b), P.P.C. and he was sentenced to imprisonment for life in circumstances.

Jehanzeb Rahim for Appellant. Azizur Rehman for the State. Khawaja Muhammad Khan for Accused/Appellant.

Date of hearing: 28th March, 2000.

PCRLJ 2000 PESHAWAR HIGH COURT 1245 #

2000 P Cr. L J 1245

[Peshawar]

Before Malik Hamid Saeed and Muhammad Azam Khan, JJ

REHMAN SAID and another ---Accuseds/Appellants

versus

THE STATE and another---Respondents

Criminal Appeal No. 143 of 1998, decided on 1st November, 1999

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

----Ss. 302/34 & 324/34---Appreciation of evidence---Occurrence had taken place in daylight and the parties were known to each other---Eye-witness having sustained fire-arm injuries in the same transaction, his presence could not be excluded from the scene of occurrence who had also reported the matter himself to the police---Relationship of the said witness with the deceased was not sufficient to discard his evidence which otherwise was credible and was even sufficiently corroborated by medical evidence, incriminating recoveries from the spot and prolonged abscondence of accused---Crime empties secured from the place of incident had also matched with the kalashnikovs recovered from the possession of accusedConvictions of accused were upheld in circumstances.

1976 PCr.LJ 17 and PLD 1966 Lah. 383 ref.

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

----S. 302/34---Sentence---Mitigating circumstance---Both the accused were brothers inter se and they admittedly had blood feud with the complainant party, details of which were not given in the F.I.R.---Sentence of death awarded to each accused was commuted to imprisonment for life in circumstances.

M. Zahoorul Haq for Appellants. Musarrat Ullah Khan, Asstt. A.-G. for the State Khalid Khan for the Complainant.

PCRLJ 2000 PESHAWAR HIGH COURT 1250 #

2000 P Cr. L J 1250

[Peshawar]

Before Malik Hamid Saeed, J

BAHADAR SHER---Petitioner

versus

MUSADAQ SHER and another---Respondents

Criminal Miscellaneous No. 1242 of 1999, decided on 28th February, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.302/34---Cancellation of bail--Accused, no doubt, was named in the F.I.R. with the specific role of firing, but except the version of the complainant no other incriminating evidence was available at such stage to fully connect him with the commission of offence---Mother. and sister of the deceased as well as the Jirga Members, who were present at the spot at the relevant time, had not charged the accused for the commission of the offence in their statements---Accused had also been shown innocent in the inquiry conducted by the Crime Circle on the application of the mother of the deceased and placing reliance by the Sessions Court on the said inquiry was not against any established principle of law---Opinion of the Investigating Agency could be considered at bail stage if the same had made the .participation of the accused in the commission of the offence doubtful---No good ground for interference in the impugned bail granting order could be pointed out---Petition for cancellation of bail was dismissed accordingly.

Syed Zulfiqar Naqvi for Petitioner.

Khawaja Muhammad Khan and Jamil Qamar for the State.

Date of hearing: 28th February, 2000.

PCRLJ 2000 PESHAWAR HIGH COURT 1346 #

2000 P Cr. L J 1346

[Peshawar]

Before Talat Qayum Qureshi, J

IJAZ KHAN---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.63 of 2000, decided on 26th March, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51(1)---Bail, grant of---Contraband heroin was recovered from motor car driven by accused at the time of occurrence---Accused prima facie was connected with commission of offence---Mere fact that heroin was recovered from shopping bag lying in feet of co-accused, an employee of accused, who at the relevant time was sitting on front seat, would not create any extenuating circumstance for the accused---Contention that co-accused had confessed his guilt and that in his confessional statement he had exonerated accused, had no force because legality and propriety of confessional statement could not be scrutinized at bail stage, but could be seen by Trial Court---Accused had been found previously involved in such-like cases as F.I.R. was found registered against him---Such conduct of, accused and his involvement in previous case, prima facie, had shown accused dealing with drugs---Quantity of recovered heroin exceeded 10 Kgs. punishment of which under S.9(c) of, Control of Narcotic Substances Act, 1997 was death---Accused, in circumstances, was not entitled to bail.

Mst. Naheed Kausar and 2 others v. The State 1998 PCr.LJ 570; Sufi Muhammad Iqbal and another v. The State 1975 PCr.LJ 628 and Bunair Gul v. State 1999 PCr.LJ 728 ref.

Saeed Akhtar Khan for Petitioner.

Muhammad Tariq, Kakar for the State

Date of hearing: 27th March, 2000.

PCRLJ 2000 PESHAWAR HIGH COURT 1364 #

2000 P Cr. L J 1364

[Peshawar]

Before Mian Shakirullah Jan and Talat Qayum Qureshi, JJ

Mst. HAMIDA and another---Appellants

versus

THE STATE and another---Respondents

Criminal Appeal No.35 of 1998 and Murder Reference No.8 of 199 decided on 30th March, 2000.

Penal Code (XLV of 1860)---

----S. 302/201/34---Appreciation of evidence---Confessional statements made by both accused were voluntary, without any pressure, threat or inducement as nothing was on record to show that any third degree method was used against accused for making confessional statement---Such confessional statements of accused were admissible in law and same could not be kept out of consideration merely on ground that it was recorded three days after police custody of accused---Recovery of dead body of minor deceased on pointation and in presence of accused, was not doubtful ---Post-mortem report had shown that dead body of deceased minor was found with a rope around the neck in two circles---Rope, clothes of deceased and some other things were taken into possession by Investigating Officer vide recovery memos.-Confessional statements of accused, recovery of dead body of deceased or, pointation and in presence of accused, post-mortem report and various thing recovered alongwith dead body, had fully proved prosecution case beyond any reasonable doubt---Witnesses were consistent on all material points and statements of most of the witnesses corroborated each other---Nothing was brought on record to show dishonesty of Investigation Officer---Trial Court. in circumstances, had rightly held accused guilty of offence with which the` were charged---Conviction of accused was upheld, but in presence of mitigating circumstances, death sentence awarded to accused by Trial court was converted into imprisonment for life.

Ghulam Hassan v. The State PLD 1974 Kar. 91; Najeeb Raza v The State PLD 1978 SC 2000; 1995 SCMR 1359; Mst, Said Begum v. The State PLD 1958 Lah. 559; Muhammad Yousaf v. The State 1995 SCMR 351; Abdul Samad v. The State PLD 1986 FSC 265; Nadir Hussain v. The Crown 1969 SCMR 442; Khan Muhammad v. The State 1999 SCMR 1818; Abdul Ghafoor v. The State 1999 PCr.LJ 1739; Mir Azam v The State PLD 1994 Pesh. 1555; Muhammad Rafique Kamou and another v. The State 1993 PCr.LJ 1043; Mir Azam v. The State PLD 1994 Pesh. 155; Khan Muhammad and others v. The State 1999 SCMR 1818; Muhammad Ismail and another v. The State 1995 SCMR 1615; The State v. Sher Zaman NLR 1994 Cr. 485; Rozi Khan v. The State PLD 1987 Pesh. 104; Mir Muhammad -v. The State 1995 SCMR 614; Nazeer Hussain v. State 1984 SCMR 1382; Khan Muhammad and others v. The State 1999 SCMR 1118; and Shahid Raza and another v. The State and another 1992 SCMR 1647 ref.

Ejaz Afzal Khan for Appellants.

Qazi Muhammad Ghazanfar, A.A.-G. for the State.

Muhammad Muzaffar Khan for the Complainant.

Date of hearing: 14th December, 1999.

JUDGMENT

TALAT QAYUM QURESHI, J.--- Appellants have assailed a judgment delivered by the Court of learned Additional Sessions Judge, Mansehra on 5-9-1998 whereby Mst. Hamida was convicted under section 302-B, P.P.C. and sentenced to death and she was ordered to be hanged by neck till she is dead. She was also convicted under section 201, P.P.C. and sentenced to three years rigorous imprisonment with fine of Rs.5,000 and in default to undergo six months rigorous imprisonment. Mst. Sajeela was convicted and sentenced to 10 years rigorous imprisonment under section 302(c), P.P.C. Accused Shahzad and Bilal were acquitted of the charges levelled against them. A criminal murder reference has also been referred as required under section 374, Cr.P.C. We hereby dispose of both criminal appeal and criminal reference together through this order.

Syed Dilawar Shah, complainant (P.W.18) reported that his son Bilal aged about 6 years was found missing while playing near his house on 27-2-1997 at about 12 noon and despite hectic efforts could not be traced. During the course of search, the complainant and his relatives satisfied themselves that one Syed Ashiq Hussain Shah in consultation with Tabariq Shah has abducted the minor Bilal and kept him in illegal confinement. The motive stated in the F.I.R. is dispute over landed property.
During the course of investigation, Dilawar Shah complainant received certain letters and the Investigation Officer also interrogated accused Ashiq Hussain Shah and Tabariq Shah but they were exonerated. The present accused were also interrogated by the Investigating Officer and were found guilty in the investigation. Mst. Hamida and Mst. Sajeela have confessed their guilt. Accused Shahzad and Bilal are minors but they were charged by the major accused. The dead body of the minor was also recovered from the cattle-shed of the accused.
After completing the-investigation, prosecution challaned the four accused. Charge against them was framed by the learned trial Court to which they did not plead guilty.
The prosecution in order to prove its case examined 18 P. Ws, in al On he conclusion of prosecution evidence the statements of accused/appellants Mst. Hameeda, Mst. Sajeela and Bilal were recorded under section 342, Cr.P.C. while Shahzad who was aged about 9/10 years and was not able to fully understand the questions was not examined under section 342, Cr.P.C. The accused did not wish to appear as their own witness nor wished to produce their evidence.
Dr. Abid Sherazi, Medical Officer, D.H.Q. Hospital, Mansehra was examined as P.W.12. He conducted post-mortem examination on the dead WY m minor Bilal on 28-4-1997 at 8 a.m. His report is as under:--

Dead body found with rope around the neck.

External Examination

Mark or legature on neck. There was a rope around the neck in two circles with rope tied very tightly. The knot on right side of neck. The rope removed by cutting in two parts (sootar) rope, handed over to police. Condition of subject. Stout decomposed body having clothes. Qamees, Shalwar, two swater blue and red colour cap, the clothing having clay on it. Ghulail (Rubber), Taweez (amulets), small black coloured ball recovered from the pocket, handed over to police. The body putrified with maggots over it. Skin is easilx peeling off. No other injury found.

Cranium and spinal cord

Membrances, brain and spinal cord decomposed.

Thorax

Walls (muscles) putrified. Larynx and trachea fractured. Right lung black coloured. Left lung black coloured. Pericardium and heart black coloured. Blood vessels not healthy.

Abdomen

Walls decomposed. Mouth and pharynx decomposed. Organs of generation external decomposed.

Remarks

the doctor conducted the post-mortem examination on dead body of child Bilal Shah son of Syed Dilawar Shah at 8-00 a.m. on 28-4-1997, The cause of death was strangulation by rope. The Clothes (Qameez, Shalwar two sweaters red and blue coloured, cap, rope in two parts Ghtilail (Rubber) small black coloured ball, Taweez (amulets) handed over to the. police alongwith police papers, Post-mortem Examination Report No. 19 of 1997 (consisting of six leaves).

According to the doctor, the time between injury and death immediate and between death and post-mortem was more than one month.

The doctor had seen the post-mortem examination report which was in his handwriting and correctly bore his signature and is Exh.P.W.12/l. It is consisting of six leaves including pictorial. The inquest report bore his endorsement which was in his handwriting and' bore his signature correctly this endorsement is Exh.P. W .12/2.

Similarly, Dr. Riaz Muhammad, Medical Officer, Government D.H.Q. Hospital, Mansehra examined minor Shahzad and Bilal in order to determine their ages and understanding. His opinion is as under:--

(1) Shahzad son of Muhammad Irshad, identification mark old scar on nose. Age according to radiologist is 7/8 years. His I.Q. is according to age and he can understand the nature of act.

(2) Bilal son of Muhammad Irshad, identification mark a black mole on right cheek. Age according to Radiologist is 11/12 years. He is intelligent and can understand the nature of act.

The doctor had seen his report EXh.P.W.7/1 which bore his signature correctly. It was in his handwriting.

Mst. Hameeda and Mst. Sajeela had confessed their guilt and their statements to this effect were recorded by Muhammad Gustasap Khan E.A.C.-III/M.I.C. and Farhatullah Khan J,M., Mansehra. The confessional statement of Mst. Hameeda has been placed on record as Exh.P.W.9/2 whereas the confessional statement of Mst. Saleela is Exh.P,W.16/3. Raja Gustasap Khan E.A.C.-III/Judicial Magistrate, Mansehra was examined as P.W.9. This witness had recorded the confessional statement of Kist. Hameeda EXh.P.W.9/2. His certificate is Exh.P.W.9/3 which was signed, by him and was correct The questions asked by this witness contained in memorandum of inquiry Exh. P. W 9/ 1.
Furhatullah Khan, Civil Judge-II/Judicial Magistrate, Mansehra was examined as P.W.16. He had recorded the confessional statement of Mst. Sajeela alia Sahiia. The questions asked by this witness to accused as contained in memorandum of inquiry 'is Exh.P.W 16/2 whereas the confessional statement of the accused-appellant is Exh P.W.l6/3 and certificate is Exh.P.W.l6/4 whi0 bore his signatures correctly. Mohammad Fazil Khan, S.H.O., Police Station Shinkiari conducted the investigation of the case under the directions of Superintendent of Police, Mansehra. On 25-4-1997 the complainant produced a letter to him in the light of which he proceeded further. The said letter was taken into possession vide recovery memo. Exh.P.W.5/1. This letter has been exhibited as Exh.P.W.17/2. During interrogation Mst. Shamim and Mst. Tajun Nisa disclosed to the Investigating Officer that about a fortnight after the disappearance of Bilal Shah minor Mst. Hameeda accused approached them and informed that Muhammad Jamil Taxi Driver had killed minor Bilal Shah and that they should depose against the said Taxi Driver. Mst. Shamim and Mst. Tajun Nisa declined to become false witnesses against the said driver on the plea that they were poor and they do not want to make false statement. Muhammad Jamil Taxi driver was also interrogated who disclosed that Mst. Hameeda, present appellant, owed Rs.32,000 to his aunt, namely, China Wali Tai and because she did not return amount, therefore, their relations remained strained and on that account Mst. Hamida charged him for hitting the minor thereby causing his death which was absolutely false. On the basis of this material Mst. Hameeda was interrogated and during the investigation she disclosed that she had borrowed money from complainant Syed Dilawar Shah and she had been returning the amount alongwith the interest. This was the great burden on her and, therefore, she got annoyed and offended and resolved to teach lesson to the complainant by way of killing his only son. She further disclosed that she wanted to sell her land so as to pay back the entire amount to the complainant yet he did not let her dispose of her land to any one else' and demanded that she should sell the property to him alone. On the pointation of accused Mst. Hameeda in presence of Assistant Commissioner, Mansehra, D.S.P. and many others the dead body of the deceased was dug out from the cattle-shed of the accused Mst. Hameeda, while she was in police custody accompanied by lady Constables. The pointation memo, has been placed on record as Exh.P.W.2/1. Site plan prepared at the instance of pointation of accused Mst. Hameeda is Exh.P.W.17/5, injury sheet Exh.P.W.17/6, inquest report Exh.P.17/7. The Investigating Officer also took into possession shirt (Exh.P.1), Shalwar Exh.P.2, two banyans Exh.P.3, one cap Exh.P.4, one ball Exh.P.5, one rubber Exhs.P.6, 5 amulets (Taweez) Exh.P.7 and two pieces of card Exh.P.8 vide recovery memo. Exh.P.W.10/1. Mst. Hameeda was arrested by the Investigating Officer on 27-4-1997 before the exhumation of dead body of minor Bilal. In the light of statement of Mst. Hameeda, her daughter Mst. Sajeela was also arrested on 29-4-1997. The application moved by the Investigating Officer for recording confessional statement of Mst. Sajeela alias Sahira is Exh.P.W.17/1. The application for summoning Mst. Hameeda on "zamima-bay" from Sub-jail Mansehra and recording her statement is Exh.P.W.17/11. He recorded the statements of P. Ws. under section 161 and also recorded supplementary statement of complainant Dilawar Shah. He also moved an application under section 169, Cr.P.C. Exh.P.W.17/13 for cancellation of case against two persons charged by the complainant in the F.I.R. after completing the investigation he handed over the case to S.H.O. for onward submission of challan.
Manzoor Hussain P.W.2 is marginal witness of pointation memo. Exh.P.W.2/1. According to this witness, Mst. Hameeda accused herself pointed out the place in the Bandi (cattle-shed) where she had buried the child's body. In his presence the earth was dug out with the help of spade and dead body of minor Bilal was brought out. Sajjad Hussain Shah was examined as P.W.6, is another witness in whose presence the dead body of deceased Bilal Shah was dug out from the ditch pointed out by accused Mst. Hameeda. This witness had identified the dead body of the minor. After the post-mortem report has received the dead body. Syed Dilawar Shah was examined as P.W.18. He narrated the same episode as mentioned in F.I.R. Exh.P.W.II/1. He further stated that he found a letter lying in his drawing room which was anonymous. The said letter contained important contents pointing towards some clues in the present case. He handed over the said letter to Fazil Khan, S. H. O., P.W.17 who was conducting the investigation.
Mr. Ejaz Afzal Khan, Advocate, the learned counsel representing the appellants argued that Mst. Hameeda was arrested on 26-4-1997 but she was shown to have been arrested on 27-4-1997 by the police. Her 5 days police custody was taken which was to expire on 1-5-1997. On 29-4-1997. Mst. Sajeela, appellant No.2 was also arrested. She was interrogated by police and on the same day she was produced before the Judicial Magistrate for recording her confessional statement. She named Mst. Hameeda, Shahzad and Bilal her brothers for commission of offence. On 30-4-1997 Mst. Hameeda was also produced for recording her confessional statement before the Judicial Magistrate. Her statement was recorded and she confessed her guilt. In the memorandum Exh.P.W.9/1 the following question was put to her:--

(Q) For how many days you remained in the policy custody?

(A) One day and night in the police station and one day and two nights in the jail.

The distinction between "police custody" and "judicial lock-up" was not clear in her mind when she replied the above question. For her judicial custody was synonymous wit that of police custody. After recording her confessional statement she was given back to the custody of Shabbir Ahmad Sepoy of jail and S.H.O., Mansehra as is clear from the order appeared on Exh.P.W.17/1. This shows that she was even interrogated in jail no it was the bounded duty of the Judicial Magistrate to make it clear to the accused that after her statement she would be sent to a place which would not be accessible to police which was not done, therefore, she was not free from fear, pressure, inducement and promise from person in authority. This fact gets more strength when in her statement recorded under section 342, Cr.P.C. in reply to a question she stated that her confessional statement was tutored by police by using third degree methods and she made the same under threat. Moreover, the confessional statement was verbatim reproduction of her statement recorded by police. Reliance was placed on Ghulam Hassan v. The State PLD 1974 Kar. 91. P.W.17 Fazil admitted that Mst. Hameeda confessed her guilt on 27-4-1997 but her police statement was recorded on 29-4-1997. It is on record that her police remand was obtained on 28-4-1997 and she was kept with police till 30-4-1997 when her confessional statement was recorded. The reasons for keeping her in police custody clearly show that she had been constantly tortured to state whatever the Investigation Officer wanted her to state in the Court. The delay in recording the confessional statement creates serious doubt about voluntariness of accused. Reliance was placed on Najeeb Raza v. The State PLD 1978 SC 2000 and 1995 SCMR 1359.

It was further argued that as per prosecution story, she led the police party for recovery of the dead body of deceased on the night of 27/28 April, and as mentioned above, she had confessed her guilt before P.W.17 Fazil, then it is not understandable as to why her police custody was taken on 28-41997. Why she was not produced on 27-4-1997 for recording her confessional statement. No convincing answer has come forth to explain her custody after 27-4-1997.
Regarding the confessional statement of Mst. Sajeela the learned counsel argued that no second warning before recording the confessional statement was given to Mst. Sanjeela by the Judicial Magistrate. Reliance was placed on Mst. Said Begum v. The State PLD 1958 Lah. 559. It was further argued that the task of killing Bilal minor was accomplished by the minor sons of Mst. Hameeda, namely, Shahzad and Bilal as according to the report of the doctor the death of the deceased was instantaneous. The criminal act was accomplished by minors acquitted accused and the appellants searched late.
It was further argued that another plausible story which can be spelt out is that while playing Shahzad and Bilal might have killed the deceased. Subsequently, when it transpired that minor had been killed. The dead body was concealed.
Another version which is also possible in the case is that the complainant is on dagger drawn with the nephew who was deprived of his property by the complainant. The said nephew might have killed the deceased and buried him in the cattle-shed belonging to appellants which is not bounded by a boundary wall and is accessible to all.
If the statement of Mst. Hameeda is taken to be true then three minors were involved, namely, Shahzad, Bilal and Mst. Sajeela who is also minor being 17 years of age. Being minors they were not liable to Qisas and in such a case they were to be punished under section 308, P.P.C. the involvement of Mst. Sajeela was used as a vehicle to pressurize Mst. Hameeda. When Mst. Hameeda and Bilal as per the confessional statement of Mst. Hameeda were pulling the string, the help of Mst. Sajeela was not at all required because for strangulating a minor boy no extra force is required and as per the statement of Mst. Sajeela, the minor was tossing his legs before she reached there.
The learned counsel for the appellants further argued that the only evidence to connect the appellants with the commission of offence is the discovery of dead body on the pointation of Mst. Hameeda. The said discovery or recovery has also not been properly proved by the prosecution. P.W. Manzoor Hussain stated that on 27-4-1997 at 12 O'Clock he was sleeping in his house, S.H.O., D.S.P. and A.C. came to his house and he was taken to the place of recovery. This statement of P.W.2 has been negated by Abdul Malik, D.S.P. P.W.14. In cross-examination he stated that recovery was made between 8 to 9 p.m. Nobody was summoned to the spot by the police. There is material contradiction between statements of Manzoor Hussain P. W.2 and Abdul Malik P.W.14 on the recovery of dead body at the pointation of Mst. Hameeda. Moreover, the discovery/recovery is admissible only when the accused led the police party. In this case the place of recovery was already in the knowledge of police as is clear from Exh.P.W.17/4, application submitted to A.C./S.D.M., Mansehra by S.H.O. seeking an order for deputing a Magistrate for exhumating the dead body of deceased. In the said application, the Investigating Officer had himself stated:--

Manzoor Hussain P.W.2 in cross-examination stated that dead body was recovered from north-eastern side corner of Bandi whereas Fazil Khan P. W.17 stated that dead body was recovered from east southern side of the Bandi. Keeping in view the material contradictions, the discovery /recovery is not admissible. Reliance was placed on Muhammad Yousaf v. The State 1995 SCMR 351 and Abdul Samad v. The State PLD 1986 FSC 265. It was further argued that both the accused-appellants had retracted their confession, hence they could not convicted on the basis of retracted confession. Reliance was placed on Nadir Hussain v. The Crown 1969 SCMR 442.

It was further argued that confessional statements of Mst. Hameeda and Mst. Sajeela are self-contradictory. Mst. Hameeda in her confessional statement stated:--
The minute study of the above confessional statement indicates absolutely two version.
On the other hand, Mr. Muhammad Muzaffar Khan Swati, Advocate, the learned counsel representing the complainant and the A.A.-G. representing the State while repelling the arguments of the learned counsel for the appellants argued that both the confessional statements are voluntary and if there was any delay in recording the confession the same would not make any difference as the confession is corroborated with other independent evidence. Judicial Magistrate had taken all the precautions before recording the confessional statements. Reliance was placed on Khan Muhammad v. The State 1999 SCMR 1818. The recovery of the dead body at the pointation of Mst. Hameeda corroborates with her confession. Reliance was placed on Abdul Ghafoor v. The State 1999 PCr.LJ 1739 and Mir Azam v. The State PLD 1994 Pesh. 1555. Manzoor Hussain P.W.2, Abdul Malik P.W.14 and Fazil Khan P.W.17 have witnessed the recovery of dead body at the pointation of Mst. Hameeda. Their statements could not be shattered during cross-examination. The prosecution has proved its case beyond any shadow of doubt. The confession made by the appellants coupled with the recovery of dead body at the pointation of one of the appellant is sufficient to uphold the conviction of the accused-appellants.
We have heard the learned counsel for the parties and perused the record carefully.

22 The case of the prosecution is based on the following:-- .

(i) confessional statements of Mst. Hameeda and Mst. Sajeela;

(ii) medico-legal evidence

(iii) discovery of dead body of minor Bilal at the pointation of Mst Hameeda;

(iv) circumstantial evidence.

The argument of the learned counsel for the appellants that the confession made by the appellants was not voluntary and that the same was tutored by Investigation Officer by using third degree methods and was obtained under threat and duress has no force. Mst. Sajeela was arrested on 29-4-1997 and on the same day her confessional statement was recorded. She remained in police custody for a few hours. There is nothing on record to show that any third degree method was used against her.

So far as confessional statement of Mst. Hameeda is concerned, she was arrested on 27-4-1997. Her police remand was obtained on 28-4-1997 and on 30-4-1997, she was summoned on Zamima-Bay from Sub jail and produced before the Judicial Magistrate where she made clean breast confession. There is nothing on record to show that she was tortured in Subjail where she was kept or any third degree method was used against her by the Investigation Officer. Both the appellants did not raise plea before the Judicial Magistrate who recorded their confessional statements that they were forced to make such a statement and that they have stated whatever the Investigation Officer asked them to State. We, therefore, hold that the confessional statements made by the accused-appellants were voluntarily made without any pressure, threat or inducement and the same, therefore, are admissible in law. Reliance is placed on judgment of August Supreme Appellate Court in Muhammad Rafique Kambu and another v. The State 1993 PCr.LJ 1043, and Mir Azam v. The State PLD 1994 Pesh. 155.

The argument of the learned counsel for the appellants that the confessional statement of Mst. Hameeda was recorded after delay of 3 days, hence it has lost its evidentiary value equally has no force. In case Khan, Muhammad and others v. The State 1999 SCMR 1818 it was held:--

"Delay in recording the confession by itself cannot render the confession negatory if otherwise it is proved on record that the same was made voluntarily."

A similar view was taken by August Supreme Court of Pakistan in Muhammad Ismail and another v. The State 1995 SCMR 1615 wherein it was held:--

"Delay for recording confession per se is no ground to discard it unless it is proved or emerges from the circumstances that it was obtained by coercion, threat, pressure etc. Indeed, the learned Magistrate after observing formalities recorded his confession and certified that it was true and voluntary."

A similar view was taken in case The State v. Sher Zaman NLR 1994 Cr. 485 wherein it was held that retracted confession cannot be kept out of consideration merely on the ground that it was recorded 3 days after police custody of the accused. Likewise in Rozi Khan v. The State PLD 1987 Pesh. 104 it was observed that mere fact that confession was recorded, 4 days after obtaining accused's police custody would not by itself suggest that the confession was result of coercion or torture by police.

The argument of the learned counsel for the appellant that discovery of dead body. on the pointation of Mst. Hameeda was doubtful has no force. le Manzoor Hussain P.W.2 stated that on 27-4-1997 at 12 O'Clock he was sleeping in his house, S. H. O., D. S. P. and Assistant Commissioner came to his house and he was taken to the place of recovery. In his presence on the pointation of Mst. Hameeda, dead body of minor was recovered. Abdul Malik, D.S.P. who was examined as P.W.14 has also stated that in his and Assistant Commissioner, S.D.M., Mansehra's presence on pointation of accused Mst. Hameeda dead body of minor was recovered and referred to D.H.Q. Hospital, Mansehra for post-mortem examination. Muhammad Fazil Khan, S.H.O. P.W.17 also stated that he moved an application Exh.P.W.17/4 for disintering of dead body of minor Bilal Shah and obtained order of Assistant Commissioner/S.D.M., dated 28-4-1997 Exh.P.W.15/1 the Assistant Commissioner, Mansehra personally accompanied police party and witnessed the disinterment on the pointation of accused Mst. Hameeda in the presence of A.C., D.S.P., Mansehra and other witnesses dead body of deceased minor Bilal Shah was dug out from the cattle-shed of accused Mst. Hameeda. Accused was present as she was in police custody being accompanied by lady Constable. The pointation memo was placed on record as Exh.P.W.2/1, site plan prepared on the pbintation of accused Mst. Hameeda was placed on file as Exh.P.W.17/5. He prepared injury sheet Exh.P.W.17/6, inquest report Exh.P.W. 17/7 of the deceased Bilal Shah and despatched his dead body for post-mortem examination to D.H.Q. Hospital Mansehra under the escort of Constable Sardar (FC No.73). He also took into possession one shirt (Exh.P.l), Shalwar (Exh.P.2), two Bunyans (Exh.P.3), one cap (Exh.P.4), one ball (Exh.P.5), one rubber (Exh.P.6),.5 amulets (Taweez) (Exh.P.7) and two pieces of cord (Exh.P.8) vide recovery memo. Exh.P.W.10/1. Sajjad Hussain Shah was examined as P.W.6. He also stated that in his presence on the night intervening 27-4-1997 to 28-4-1997 dead body of deceased Bilal Shah was dug out from ditch was pointed out by accused herself. He identified the dead body and after postmortem examination received the same. The prosecution has proved the recovery/discovery of the dead body of Bilal Shah minor on the pointation of Mst. Hameeda accused from her cattle-shed. Statements of Manzooi P. W.2, Abdul Malik Khan, D.S.P. P.W.14, Fazil Khan, S.H.O./Investigating Officer P.W.17 and Sajid Hussain P.W.6 corroborate with each other on the material point that dead body was recovered at the pointation of accused Mst Hameeda. Our attention was drawn by the learned counsel for the appellant to the statement of Abdul Malik D.S.P. P.W.14 who has in the crossexamination stated that recovery was made at 8 to 9 p.m. This minor contradiction would not demolish the case of prosecution so far as recovery/discovery of dead body of minor Bilal on the pointation of accused Mst. Hameeda is concerned. We may mention here that association of two respectable inhabitants of the locality is not required in a case where the accused himself/herself leads the police to a particular place and gets the articles recovered. Reliance is placed on Mir Muhammad v. The State 1995 SCMR 614 wherein it was observed by their Lordships:--

"In the instant case the appellant had led the police to his house and pointed the place wherefrom gun was recovered. Neither search warrants were issued by Magistrate for the search of house of the appellant nor the police had searched his house/place of its own. The plain reading of section 103, Cr.P.C. would show that the provisions of this section apply to a case where the police conducts search of a house/place to recover an article for which search is made and not to a case where anything is to be discovered in consequence of information given by or on the pointation of accused. The recovery to be made on pointation of the accused is relevant under Article 40 of Qanun-e-Shahadat, 1984. The association of two respectable inhabitants of locality is not required in case where the accused himself leads the police party to a particular place and gets the articles recovered."

Likewise in another case Nazeer Hussain v. The State 1984 SCMR 1382 the order of conviction was maintained by August Supreme Court of Pakistan with the following observations:--

"As pointed out already, Chhuri lay buried in the ground and the petitioner led the Investigating Officer precisely to the spot where it lay buried. This special knowledge as to the spot where lay buried in the graveyard unmistakably leads to the conclusion of the petitioner's vicarious possession for which he was rightly convicted and sentenced, being unable to produce its licence. "

The next argument of the learned counsel for the appellants that the confessions made by the appellants were retracted, hence they cannot be convicted on the basis of retracted confessions. This argument equally has no force. In paragraph 23 above, we have held that the confessional statements made by the accused-appellants were voluntarily made without any pressure, threat or inducement. No doubt the confessions made by the appellants have D been retracted by them but mere retraction is not enough to make it involuntary or diminish its intrinsic value. Similarly it cannot be kept out of consideration merely on the ground at it was recorded 3 days after the police custody of the accused. Reliance is placed on The State v. Sher Zaman NLR 1994 Cr. 485 wherein it was held:--

"I am fully satisfied that the fear of police was totally removed from the mind of the accused and the confession made by him was free from extraneous influences such as threat, promise or inducement is voluntary and true-.and does not suffer from any defect of form or substance. No doubt the confession has been retracted by the accused but mere retraction is not enough to make it involuntary or diminish its intrinsic value."

Similarly, in case Khan Muhammad and others v. The State 1999 SCMR 1118 it was held:--

"Having concluded that no illegality had been committed in regard to confession we are of the view that in law the conviction on the basis of retracted Judicial confession alone is sustainable provided the confession has been recorded in accordance with law. However, by way of abundant precaution if we see corroboration to the confession, the same is available on the record of this case."

Likewise in Mir Azam v. The State PLD 1994 Pesh. 155 it was held:--

"Confessional statement although retracted and made by the accused after having remained in police custody for 2 to 3 days could not be shown to be not voluntary and obtained under compulsion which was corroborated by recovery of dead body at his pointation from his house and the medico-legal evidence conforming the happening of the murder in the manner as described in the statement, prosecution had, thus, brought home the guilt of the accused beyond any reasonable doubt."

The post-mortem report Exh.P.W.12/1 shows that the dead body of minor Bilal was found with a rope around the neck in two circles tied very tightly with knot on right side of the leg. The rope, clothes of the deceased, Ghulail. Taweez (Amulets), small black colour ball were taken into possession by the Investigating Officer vide recovery memo. Exh.P.W.17.

The confessions made by the applicants, recovery of dead body of minor Bilal on the pointation of Mst. Hameeda from her cattle-shed, the F post-mortem report, rope found around the neck of the deceased, clothes, Ghulail, Taweez (amulets), small black colour ball taken into possession by the Investigation Officer bring us to the conclusion that prosecution has proved its case beyond any reasonable doubt. Most of the witnesses were consistent on all material points. Statements of most witnesses corroborate with each other. Nothing was brought on record to show that there was dishonesty in the investigation, therefore, the learned trial Court rightly held the appellants guilty of offences with which they are charged.
So far as case of Mst. Sajeela is concerned, the learned trial Court keeping in view the facts and circumstances of the case has awarded her 10 years rigorous imprisonment under section. 302, P.P.C. We have not been pursuaded to interfere with the sentence awarded to her. Moreover, a revision for enhancement of her sentence has been filed. Appeal to the extent of Mst. Sajeela is, therefore, dismissed.
So far as the sentence awarded to Mst. Hameeda is concerned we feel that the requirement of justice would be amply fulfilled if she is awarded a lesser penalty of imprisonment for life because the circumstances of the case show that it was Dilawar Shah, complainant, the father of the deceased Bilal who had made the life of appellant and her family miserable. She had taken a loan of Rs.20,000 from him and despite repayment of Rs.80,000 he was demanding more amount and even would not allow her to sell her landed property in order to settle the outstanding amount. The murder was committed in desperation and utter frustration. The circumstances which furnished very strong motive for the accused to murder the deceased are also well recognized mitigating circumstances. Wisdom has been gained from Shahid Raza and another v. The State and another 1992 SCMR 1647. We, therefore, partially accept the appeal of Mst. Hameeda Bibi. The sentence of death to accused Mst. Hameeda is modified and commuted to imprisonment for life. Compensation under section 544-A, Cr.P.C. is not awarded keeping in view weak financial position of the appellants. Conviction of Mst. Hameeda Bibi under section 20,1, P.P.C. is maintained. The murder reference is replied in negative. Benefit of section 382-B, Cr.P.C. is also extended to them. The sentences awarded to Mst. Hameeda Bibi under sections 302(b) and 201, P.P.C. shall run concurrently. File be consigned to record room.

H.B.T./92/P Order accordingly.

PCRLJ 2000 PESHAWAR HIGH COURT 1378 #

2000 P Cr. L J 1378

[Peshawar]

Before Mian Shakirullah Jan and Talat Qayum Qureshi, JJ

AHMED ZIA alias BOBI and another---Petitioners

versus

Malik SAFI ULLAH and another---Respondents

Criminal Miscellaneous No. 17 of 2000 in Criminal Appeals Nos.5 and 9 of 1998, heard on 5th April, 2000.

Criminal Procedure Code (V of 1898)---

----S. 426(1-A)(c)---Penal Code (XLV of 1860), S.302/34---Suspension of sentence till decision of appeal---Suspension of sentence and release on bail had been sought by accused on ground that despite lapse of two years their appeal had not been decided and that it was mandatory for Appellate Court to release the accused on bail---Complainant had also filed revision for enhancement of sentence of accused from imprisonment of sentence for life to that of death sentence and notices had been issues to accused in that respect---Provisions of S.426(1-A)(c), Cr.P.C. being not applicable to appeals involving punishment of death, Appellate Court declined to exercise its discretionary powers to suspend sentence after recording reasons.

Liaqat v. State 1995 SCMR 1819; Muhammad Yaqoob v. The State 1991 SCMR 1459; Bahadur v. The State 1997 SCMR 1183; Zulfiqar Muhammad Tufail v. State 1981 SCMR 727; Manzoor Hussain v. State 1982 SCMR 357; Abdur Rashid v. State 1988 SCMR 149; Shah Baz v. State 1992 SCMR 1903; Muhammad Akram v. State 1994 SCMR 277 and Abdul Razaq v. State -1993 SCMR 234 ref.

M.A. Tahirkheli for Appellant.

Muhammad Ayub Khan, A.A.-G. for the State.

M.M. Idris for the Complainant.

Date of hearing: 5th April, 2000.

JUDGMENT

MIAN SHAKIRULLAH JAN, J.--- The two petitioners Ahmed Zia and Muhammad Sajid Baig after being convicted for a charge under section 302/34, P.P.C. and sentenced each of imprisonment for life, after filing an appeal against their conviction, have now filed the instant application under section 426(1-A)(c), Cr.P.C. for the suspension of their sentences and their release on bail till the decision of the appeal on the ground that despite the lapse of two years their appeal has not been decided. It may be pointed out that petitioner Muhammad Sajid Baig has previously moved an application for the suspension of the sentence on merits of the case but the same was declined by this Court on 7-10-1999.

The learned counsel for the petitioners has contended that in view of the provisions of section 426(1-A)(c), whereby after the expiry of two years the appellate Court shall release the convict on bail unless for the reasons to be recorded. His view point is that it is mandatory for the Court to release the convict on bail but for the reasons to be recorded. In this respect, in addition to the judgments of the High. Courts, has cited judgments of the Supreme Court in cases Liaqat v. State 1995 SCMR 1819, Muhammad Yaqoob v. The State 1991 SCMR 1459, Bahadur v. The State 1997 SCMR 1183.
It is not only the petitioners who have filed the appeal against their conviction and sentence but the complainant also felt dissatisfied with the judgment and order of the learned trial Court with regard to the quantum of sentence and filed a revision petition vide Criminal Miscellaneous No.2 of 1998 Khalid Mahmood v. Ahmad Zia and Sajid Baig requesting this Court for the enhancement of the sentences of the two petitioners-appellants from imprisonment of life to that of death with further prayer of confiscation of their immovable and movable property. In the judgment Liaqat v. The State (supra) referred to by the learned counsel for the petitioners the Honourable Supreme Court while disposing of petition involvingquestion of suspension. of sentence upheld the order of the High Court in Criminal Petition No.84/L of 1995 (in which Abdul Ghafoor was a petitioner) on the ground that a revision petition for the enhancement of sentence has been filed and that t provisions of section 426(1-A)(c), Cr.P.C. do not apply to appeals involving punishment of death. The relevant portion of which on page 1829 it was held:--

"In Criminal Petition No.84/L of 199.5 the High Court declined bail to petitioner on the ground that a notice of enhancement of sentence to death has been issued to him by the Court in Criminal Revision No. 154 of 1992. This reason has no nexus with the merits of the case. It is also not disputed that provisions of section 426(1-A), Cr.P.C. do not apply to appeals involving punishment of death. We, therefore, see no reason to interfere with the above order of the High Court. Criminal Petition No.84/L of 1995 is, accordingly, dismissed and leave to appeal is refused.?

If there are judgments on one hand of the Honourable Supreme Court or the High Court suspending the sentences of the convicts, then there are judgments of the Honourable Supreme Court and of the High Courts on the other side whereby such a prayer of the convict has been declined on various grounds e.g. the fixation of the appeal for hearing in the near future. In Zulfiqar Muhammad Tufail v. State 1981 SCMR 727, Manzoor Hussain v. State 1982 SCMR 357, Abdur Rashid v. State 1988 SCMR 149 (referred to in the abovementioned judgment) and Shah Baz v. State 1992 SCMR 1903 on the ground to avert commission of any further offence by the convict and even on merits in the case Muhammad Akram v. State 1994 SCMR 277.
This Court while dismissing a similar application in Criminal Appeal No. 168 of 1996 Salim Khan v. State on 22-9-1996 of convict and relying on the judgment of the case Abdul Razaq v: State 1993 SCMR 234 has observed:--

"The contention has not impressed us because the words for reasons to be recorded by it in writing appearing after the word 'shall' leave no room for doubt that the discretionary power of the appellate Court liar not been taken away altogether and it is still vested with: the power to decline suspension of sentence after recording reasons. Besides, the contention if accepted would imply automatic release on bail in all such cases. "

Consequently, we are not inclined to accede to the prayer of the petitioners by suspending the sentence and granting them bail. The petition is dismissed.

Petition dismissed

H.B.T./91/P ??????????????????????????????????????????????????????????????????????????????????????? Petition dismissed

PCRLJ 2000 PESHAWAR HIGH COURT 1386 #

2000 P Cr. L J 1386

[Peshawar]

Before Shakirullah Jan and Talat Qayum Qureshi, JJ

YOUSAF---Appellant

versus

THE STATE and another---Respondents

Criminal Appeal No.44 with Murder Reference No. 10 of 1999, decided on 4th May, 2000.

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

----S. 302---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Prosecution witnesses had fully supported version of complainant as stated by him in F. I. R. ---Prosecution witnesses were consistent on major aspect of the case---All prosecution witnesses, who deposed that they had seen occurrence with their own eyes, were subjected to lengthy cross-examination, but no material contradiction could be brought on record by the accused---Prosecution witnesses were independent and accused could not prove that complainant was related to deceased---Even if it was presumed that complainant was related to deceased, mere relationship was not sufficient to discard his testimony when accused had failed to bring )on record anything to prove that complainant had any motive to falsely implicate the accused ---F.I.R. having been got registered promptly, contentions of accused that F.I.R. was lodged after due consultations and deliberations and material contradictions were present regarding recording of said F.I.R., was repelled---Case of prosecution had been fully supported by recoveries from the spot in the shape of blood-stained earth, broken teeth of deceased, empty shell of .12 bore gunshot and recovery of pellet extracted from dead body of deceased during his post-mortem examination---Delay in sending empty shall of .12 bore shotgun and gun discovered at the pointation of accused, to Firearm Expert could not be made ground for rejection of their evidentiary value and worth---Medical evidence had also supported case of prosecution--Prosecution having proved its case beyond any shadow of doubt, conviction of accused was upheld, but sentence of death awarded to accused by Trial Court was altered to imprisonment for life in view of mitigating circumstances to the effect, that occurrence was result of altercation and exchange of hot words between deceased and accused; that occurrence was not pre-planned, that deceased had also contributed a little bit during altercation; that it was not known as to what had transpired immediately before occurrence and that dispute was between parties over a piece of land.

Sharafat Ali v. The State 1999 SCMR 329; Zakar Khan and others v. The State 1995 SCMR 1793; Sarwar and others v. The State 1987 SCMR 960; Sajid and another v. The State 1998 PCr.LJ 114; Aslam Parvez and another v. The State 1989 SCMR 389; Ejaz Ahmad v. The State 1999 SCMR 151; Mehram Hayat v. The State 1999 PCr.LJ 216; Naubahar v. The State 1999 SCMR 63-7 and Jan Ahmad and others v. The State and others 1989 SCMR 994 ref.

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

----S. 103---Qanun-e-Shahadat (10 of 1984), Art.40---Penal Code (XLV of 1860), S.302---Recovery and search proceedings---Association of two respectable inhabitants of locality was not required in case where accused himself had led police to a particular place and had got articles recovered--Provisions of S.103, Cr.P.C. would apply to a case where police conducted search of house/place to recover articles for which search was to be made and not to a case where anything was to be discovered in consequence of information given by or on pointation of accused---Recovery to be made on pointation of accused was relevant under Art.40 of Qanun-e-Shahadat, 1984.

Saeed Akhtar Khan and Fazal-e-Haq Abbasi for Appellant. Muhammad Ayub Khan, A.A. -G. for the State. Syed Shabbir Hussain Shah for the Complainant.

JUDGMENT

TALAT QAYUM QURESHI, J.--- This appeal is directed against the judgment of learned Additional Sessions Judge, . Abbottabad, dated 9-8-199,9 whereby he convicted the appellant under section 302, P.P.C. and sentenced him to death. He was further directed to pay Rs.50,000 as compensation to the legal heirs of deceased or in default to undergo six months simple imprisonment. By this judgment we propose to dispose of Criminal Appeal No.44 of 1999 and Murder Reference No. 10 of 1999.

Muhammad Rafique, lodged report vide F.I.R. Exh.P.A. to the effect that being Contractor of Municipal Committee, Abbottabad he has obtained contract of sewerage of filthy water of Makki Mosque. On the day of occurrence he was digging the drain of filthy water through labourers. At about 14-00 hours Zahoorur Rehman (deceased), Ex-Councillor of Municipal Committee, Abbottabad came to the spot. In the meanwhile, Yousaf son of Qalandar (appellant) also came to the spot and started altercation with, Zahoorur Rehman. Yousaf (appellant)-rushed towards his house after some times came out alongwith D.B, shotgun and fired two shots one after another at the deceased, as a result of which he was hit near his mouth and abdomen, fell on the ground and was shifted in injured condition to the Hospital. The occurrence was witnessed by Arif Ali son of Hussain Khan and 2/3 other persons besides the complainant. Motive stated in the F.I.R. is dispute over the land meant for graveyard.
Challan of the case was put into the Court of learned Additional Sessions Judge, Abbottabad. The accused-appellant was formally charged to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case examined as many as 12 witnessed. Resume of the prosecution evidence is given below.
Muhammad Ishaq Khan, A.S.-I. Police Station Cantt Abbottabad (P.W.1) on receipt of Murasila Exh.P.A./1 incorporated its contents into F.I.R. Exh.P.A. The F.I.R. was in his handwriting and signed by him.
Ahmad Ji S.H.O., Police Station Cantt. (P.W.2) submitted complete challan against the accused after completion of investigation on 14-1-1999.
Mushtaq Shah, A.S.-I. Police Station Cantt. Abbottabad (P.W.3) is marginal witness of recovery memo. Exh.P.W.3/1 through which bloodstained earth Exh.P.1, broken tooth of deceased Zahoor Abbasi Exh.P.2 were taken into possession by,the Investigating Officer who sealed the same in his presence and affixed seals in the name of M.S. on parcels. He is also marginal witness of recovery memo. Exh.P.W.23/2 vide which Investigating Officer took into possession from spot one empty shell of .12 bore Exh.P.3 giving the smell of freshly discharge. The same was also packed and sealed in this presence and the Investigating Officer affixed seals of M.S. on the same. He also witnessed memo. Exh.P.D.3/3 regarding the house search conducted by Investigating Officer in his presence. He is also marginal witness of recovery memo. Exh.P.W.3/4 vide which a double-barrel shot gun Exh.P.4 Pak-made having words SFS-MAKU EELUM-Brand was described on the barrel. All the recovery memos correctly bear his signatures.
Nazar Rehman, A.S.-I. Police Station Cantt. Abbottabad (P.W.4) is also marginal witness to recovery memo. Exh.P.W.4/1 vide which Investigating Officer took into possession a sealed bottle containing a pellet Exh.P.T. recovered from dead body of deceased. He is also marginal witness to the recovery memo. Exh.P.W.4/2 vide which the Investigating Officer took into possession blood-stained garments EA.P.W.4/2 consisting of a Shalwar P.6, a shirt P.7, white Bunyan P.8 and another Banyan Exh.P.9, Chaddar Exh.P.10 having corresponding cut marks, sent by the doctor which were packed and sealed by the Investigating Officer who affixed seals in the name of MS on the same in his presence. He testified his signatures on the said recovery memos to be correct.
Mehboobur Rehman son of Khani Zaman (P.W.5) received the dead body of Zahoorur Rehman deceased after the post-mortem examination and scribed receipt of the dead body and handed over the samg to the Investigating Officer:
Muhammad Rafique son of Muhammad Zaman complainant narrated the same story as mentioned in the F.I.R.
Arif Ali son of Hussain Khan (P.W.1) stated that on the day of occurrence he was working with Muhammad Rafique (P. W .6) who had a contract of draining filthy water of Makhi Masjid. It was about 2 p.m. when Zahoorur Rehman came there with Muhabat Khan and 2i3 other persons. Accused/appellant Muhammad Yousaf also came to the spot and an altercation took place between the accused and deceased but he could not understand the factum of altercation. Accused/appellant went to his house and after some time came out with D.B. shotgun and fired two shots-at the deceased, as a result of which he was hit on his abdomen and near the mouth, having sustained injuries he fell down on the ground. The accused decamped from the spot. He (P.W.7) alongwith other shifted the deceased then in injured condition to hospital where complainant Muhammad Rafique (P.W.6) lodged the report on arrival of police. Then the deceased succumbed to the injuries. He had seen the occurrence with his own eyes. Bilal and Rashid had also seen the occurrence as they were also present at the spot. .
Haji Abdur Rashid (P.W.8) also stated that on the day of occurrence after offering Zuhar prayers he came out of the mosque went to the spot. The digging work of the drain of the mosque was in progress. He saw that deceased Zahoor, accused Yousaf, Muhammad Rafique (P.W.6) alongwith others including Arif (P.W.7) were also present there. An altercation took place between deceased and accused/appellant, the factum of which he could not understand. Thereafter, accused-appellant Yousaf went to his house and after some times came out from his house with D.B. shot gun and fired at deceased, as a result of which deceased was hit on his abdomen and near the mouth. After receiving the injuries the deceased fell down on the ground. Accused decamped towards his house alongwith shot gun. He (P.W.8) rushed to the road side, raised hue and cry, on which people attracted. The deceased then injured was shifted to Civil Hospital, Abbottabad. He had seen the occurrence.
Dr. Fiaz Hussain Shah, C.M.O., D.H.Q. Hospital, Abbottabad (P.W.9) had examined injured Zahoorur Rehman at about 2-40 p.m. on 20-12-1998. The injured was brought by Fazal F.C., Police Station Cantt. Abbottabad in injured condition for his medical examination. On examination he found a single fire-arm injury on the anterior abdominal wall with circular hole with the evident .12 bore pellets of No.4, cartridge, 8 in number spreading along the circumference of fire-arm injury with coming gut evidence. The other fire-arm shot at the neck of the same bore with open lacerated wound, at the base of mandibular angle on the left side, circular 2-1/2 x 2-1/2" communicating with big open laceration wound at base of left jaw, just above the left earotid destroyed artory measuring 4-1/2 x 5". It was external artory. Cavity bone deep wound containing with another laceration from the hyoid bone measuring 3" x 3" bone deep, underlying bone exposed and continuing with another two lacerations running "V" shaped, 2-1/2 x 3-1/2" bone deep. All the vicreas of left side lateral and anterior triangle of neck are exposed, distrorted including esepharynx oropharynx lateral wall of treacha oespohagus, vocal cords exposed. There was abduction of 6.7 c.m. of left plus right mandibular bone. The doctor advised X-Ray of skull. A.P. and lateral view, X-Ray abdomen plan, kind of injures, dangerous to life. According to doctor weapon used .12 bore shot gun number 4 cartridge. The duration of injuries was 10 to 15 minutes back. He testified that Exh.P.W.9/1 was in his, handwriting and bore his signatures correctly. He also owned the endorsement on injury sheet Exh.P.W.9/2. The patient was referred by him to Ayub Complex Hospital for further treatment.

On the same day he conducted the autopsy of the dead body of deceased Zahoorur Rehman Abbasi. The body was brought to him by police and identified by Jehanzeb son of Muhabat and Gul Zaman son of Muhammad Ismail. He recovered one pellet of No.4 cartridge with blood-stained which was signed and sealed by him and handed over to police. On examination he found the following:--

External examination

"Of 50-51 years, man, gray hairs having facial poller with wound of entrance No. 1, distorted, face. There is a big laceration measuring 6.8" running just behind the sub-mandibular area communicating with another laceration running to chin, measuring 4", another laceration communicating the order just described. There is a big hole in the area of sub-mandibular region measuring 2-1/2 x 2-1/2" in diameter, the jaw on the left side just above the carotid artory, the under-structure are exposed. All the structure in the line of fireane damaged including lower part pharynx, vocal of external carotid artory.

There is another fire-arm entry wound with area of speared of pellets 8 in number covering total area 2-1/2 x 2-1/2" circular cavity deep with gut lying outside. No evidence of charring or tattooing in the area. The injury on the neck is fire-arm No. 1, shotgun .12 bore cartridge No.4. The striking angle of the fire-arm 175 corresponding to the body. Colour of clothes is light brown, bloodstained and corresponding to injury No.2 on abdomen. No post-mortem lividity or rigor mortis developed slightly in the gluteal area. The blood-stained garments of the deceased were sealed, signed by the doctor and handed over to the police. The deceased was wearing light brown Shalwar and Qamis and sweater, .all bloodstained, having fire-arm marks corresponding to injury No.2.

Internal examination

Cranium and spinal cord fracture of mandibular including, tooth above 6.4 c.m. area of the jaw is absent on both sides of ramus of mandible. Drain normal. All the structure in line of injury ace damaged. Thorax -- larynx, traechea contained blood, cloth shattered and destroyed, cannot be recognized properly. Blood vessels-external carotid artory damaged by small (minor perforations). All other vessels in the line, of injury are damaged. Abdomen wall interior abdominal wall damaged in mid umbilical region by fire-arm injury. Peritoneum ruptured and shattered. Mouth, pharynx and oesophagus -- the base of pharynx both walls are damaged, contained blood clots, upper part of oesophagus damaged, other structure cannot be identified properly due to exclusive damaged by fire-arm. Stomach and its contents perforated, by three minor perforations at greater curvature, contents are present of last meal. Small perforations and hemp-peritonium is there. About 2.5 litre of blood present in peritoneal cavity. Large intestine and its contents shattered by multiple small perforations, contained stool, leakage into peritoneum cavity. Kidneys both kidneys shattered with minor perforation and swollen. The bladder was containing residual urine 25,c.c. Muscles, bones and joints. All the structure in the line of injury the area anterior and lateral triangle of neck are damaged including external carotid artory, pharynx, nazo pharnygial wall hyoid bone, fracture 'of lower jaw on both sides with abduction of bone plus teeth of lower jaw, on both sides with abduction of bone plus teeth of lower jaw, dislocation of tempore mandibular Joint on both side right and left.

Remarks

In the opinion of the doctor the cause of the death of the deceased was fire-arm injuries with .12 bore No.4 cartridge, causing lethal damage to structure in the neck, in the area of anterior and lateral triangle loading circulatory collapse and cardio respiratory arrest and huypovalamia. The time between injuries and death was 45 minutes and between death and post-mortem examination was 2 hours back. The post-mortem report consisting 6 sheets (including pictorial) is EXh.P.M. which is in his handwriting and bears his signatures correctly. The doctor had also endorsed the injury sheet Exh.P.M./1 and inquest report Exh.P.M./2 of the deceased."

ZuIfiqar Jadoon S.-I./S.H.O. Police Station Mansehra (P.W.10) was posted at Police Station Cantt. Abbottabad during the days of occurrence. He was present at Sarban Chowk alongwith other police party. After receiving information regarding, the occurrence he proceeded to Civil Hospital, Abbottabad where deceased then injured was lying unconscious besmeared in blood. Complainant Muhammad Rafique reported the matter to him which was recorded in the shape of Murasila Exh.P.A./1 by him, was read over and explained to complainant who signed the same as token of its correctness. He prepared injury sheet Exh.P.W.9/2 of deceased, sent Murasila through D.F.C. Shaukat to police station for registration of case, went to the spot, prepared site plan Exh.P.B., at the instance of complainant and eye-witness Arif Ali. He took into possession blood-stained earth Exh.P.1, broken tooth Exh.P.2 of the deceased vide recovery memo. Exh.P.W.3/1. Ire also took into possession one empty cartridge of .12 bore Exh.P.3 giving smell a fresh discharge having the words Shaheen 4 and word Wah Industries Limited vide recovery memo. Exh.P.W.3/2 sealed the parcel, affixed his seals thereon. He also recorded statements of P.Ws. under section 161, Cr.P.C. conducted the house search of the accused vide Exh.P.W.3/2. Neither accused was available nor any incriminating articles were recovered during the search. Zahoorur Rehman injured succumbed to the injuries on the same day. His dead body was shifted to mortuary of Civil Hospital, Abbottabad where his post-mortem examination was conducted. Vide recovery memo. Exh.P.W.4/2 he took into possession the blood-stained garments of deceased consisting of a Shalwar Exh.P.6, shirt Exh:P.7, white banyan Exh.P.8, a warm banyan Exh.P.9 and a Chaddar Exh.P.10, having corresponding cut marks of pellets, sent by doctor which were packed and sealed by him. He also took into possession sealed bottle containing pellet Exh.P.5 extracted from dead body of deceased, sent by doctor vide recovery memo. Exh.P.W.4/1. Vide his application Exh.P.W.10/1 he got recorded the statements of P.Ws. Abdur Rashid, Arif Ali and Bilal under section 164, Cr.P.C. Since the accused was avoiding his lawful arrest, therefore, vide his application Exh.P.W.10/2 he applied and obtained warrant under section 204, Cr.P.C. against him. Vide application Exh.P.W.10/3 he sent bloodstained earth recovered from the spot and blood-stained garments of the deceased to Forensic Science Labotratory and obtained result Exh.P.W.10/4. The accused-appellant had obtained ad interim bail from Sessions Court, Abbottabad which was recalled. He arrested the accused on 9-1-1999 and vide his application Exh.P.W.10/5 obtained three days police custody of accused, interrogated him. During the interrogation he was willing to produce weapon of offence and on 11-1-1999 while in police custody he led the police party to a drain situated near the place of occurrence from where he picked up and produced D.B. shot-gun .12 bore without any number (Pak. made) Exh.P.4 having the words "SFS" M.A.K.N. EELUM. Brand. Ht; also prepared recovery memo. Exh.P.W.3/1 and site plan Exh.P.B./1. The weapon of offence was sealed and packed by him. He recorded the statement of accused and vide his application Exh.P.W.10/5 produced him before the Court for recording his confession. He did not confess his guilt. Vide his application Exh.P.W.10/6 he got recorded statements of P.Ws. Amirud Din and Muhammad Parvez Khan under section 164, Cr.P.C. vide his application Exh.P.Z. he sent weapon of offence alongwith one empty shell recovered from the spot and a live round to arms expert for comparison and his opinion and obtained result Exh.P.Z./1. After completion of investigation he handed over the case file to S.H.O. for submission of challan.
Fazal Dad, A.S.-I. Police Station Mirpur (P.W.11) had prepared the inquest report EXh.P.M./1 which bore his signature correctly and the same was endorsed by the doctor.
Gul Zaman son of Muhammad Ismail (P.W.12) had identified the dead body of deceased before the police and before the doctor at Ayub Medical Complex, Abbottabad. The inquest report Exh.P.2 bore his signature correctly.
The statement of accused-appellant was recorded under section 342, Cr.P.C. He wished to produce Patwari Halqa alongwith record but did not wish to give his statement on oath under section 340(2), Cr.P.C.
Khan Afsar, Patwari Halqa Sheikhul Bandi was examined as D.W.l. He produced on record Fard Jamabandis for the years 1981-82, 1985-86, 1989-90 and 1993-94 in respect of Khasra No. 1418 measuring 1 Kanal 14 Marlas situated in Qasba Abbottabad which were placed on record Exh.D.W.I/1 to Exh.D.W.I/4 respectively. He also produced photostat copy of Mutation No.2744 unattested with register of mutations for the year 1996. The said mutation was recorded at serial No.2744 of the register. Photo copy of the same was exhibited as Exh.D.W.1/1.
Messrs Saeed Akhtar Khan and Fazal Haq Abbasi, Advocate, the learned counsel representing the appellant argued that the F.I.R. was lodged after due consultations and deliberations. There were material contradictions regarding the recording of report. Arif Ali P.W.7 stated that the report was recorded by Akhtar S.-I. and then torts the same and re-drafted whereas Zulfiqar P.W.10 stated that Murasila Exh.P.A./1 and site plan were in the handwriting of Mushtaq Hussain Shah, P.W.3. Akhtar, S.-I. was not produced by the prosecution whereas the learned trial Court on the request of the counsel for the defence observed that Exh.P.A./1 and Exh.P.B. (site plan) are in different handwriting.
It was further argued that all the P.Ws. were interested witnesses. Muhammad Rafique P.W.6 is related to deceased, Arif Ali P.W.7 is the tenant of complainant party. Name of Abdur Rashid P.W.8 is not mentioned in the F.I.R., civil litigation was already pending between the deceased, P.Ws. 6 and 8 are plaintiffs while Babar son of appellant is defendant in the said suit, therefore, it was not safe to rely on their statements without further corroboration. None of the independent witnesses from vicinity was produced although the place of occurrence is thickly populated area.
It was further argued that the medical evidence is not in line with the prosecution case. The time of death and post-mortem examination was not given in post-mortem report. The same was recorded on the second day of post-mortem by relying on memory which is highly unsafe. No reason whatsoever was advanced by Dr. Fiaz Hussain Shah P.W.9 for writing the post-mortem report with delay. The possibility of manipulation in connivance with police and complainant party, therefore, cannot be ruled out. The number and description of injuries given in the post-mortem belies the prosecution version. The garments of deceased, blood-stained pellet (P.5) and post-mortem report was handed over to police after two days of the postmortem examination, i.e. on 22-12-1998. The blood-stained pellet (P.5) was neither sent to serologist nor sent to Fire-arm Expert to ascertain its calibre.
The recovery of shot gun P.4, it was argued was also doubtful. Despite availability of independent witnesses, none from public was associated. Mushtaq Shah P.W.3 and Zulfiqar P.W.10 contradicted each other on material points. The empty shell P.3 though taken into possession by Investigating Officer on 20-12-1998 was not sent to Fire-arms Expert for safe custody till alleged recovery of shot gun P.4 on 11-1-1999. Both empty shell and shot gun were received by the Fire-arms Expert on 16-1-1999. It was not known as to in whose custody the empty shell P.3 was kept from 20-12-1998 till 16-1-1999 and where and in whose custody the D.B. shot gun was kept since 11-1-1999 to 16-1-1999. It was also argued that the land bearing Khasra No.1418 where the alleged occurrence took place and where allegedly the drain was dug by Muhammad Rafique P.W.6 is owned and possessed by appellant and his son Babar and deceased with the help of Muhammad Rafique P.W.6 wanted to take forcible possession of the said land. Since they were doing mischief to the property of the appellant and his son, therefore, in order to save his property, he acted in self-defence.
It was also argued that the investigation of the case was not conducted honestly. On the same day and time house of the appellant and his brothers were burnt, although a case vide F.I.R. No.884 at the report of Zulfiqar P.W.10 was registered but time of the occurrence was wrongly given by P.W.10.
It was also argued that P.Ws.6, 7 and 8 in their statements have deposed that altercation took place between the deceased and the appellant, the factum of which they could not understand. What transpired between accused and deceased immediately before the occurrence was not known to the said P.Ws.
On the other hand Syed Shabbir Hussain Shah, Advocate, the learned counsel representing the complainant argued that Exh.D.W.I/1 to Exh.D.W.1/4 at page 108 show that it was in possession of Ahle-Islam. Exhs.D.W.I/2 and 1/3 Jamabandis for the years 1985-86 and 1989-90 show that the property in dispute was in possession of Ahle-Islam. Appellant or his son Babar never remained-in physical possession of the property in dispute. The prosecution has properly proved its case beyond any shadow of doubt. All the P.Ws. are consistent and their veracity could not be shattered though they were subjected to lengthy cross-examination. Regarding the recovery/discovery of weapon of offence, it was argued that the drain from where the crime weapon was recovered was just adjacent to prohibited area where common public has no excess. The medical evidence, recovery of blood-stained earth, empty shell and tooth of the deceased, from the place of occurrence fully support the case of prosecution. It was prayed that the appeal be dismissed and the conviction and sentence be maintained.
We have heard the learned counsel for the parties and perused the record.

26 The case of prosecution is based on following:-

(1) Ocular evidence furnished by--

(i) Muhammad Rafique (P.W.6) complainant, (ii) Arif Ali (P.W.7), (iii) Abdur Rashid (P.W.8)

(2)(i) recoveries from the spot in the shape of blood-stained earth, (ii) broken teeth of the deceased, (iii) empty shell of .12 bore D.B. shot-gun, recovery of pellet extracted from the dead body of deceased during post-mortem examination, (iv) recovery/discovery of D.B. shot-gun at the pointation of accused, (v) result of Fire-arms Expert Exh.P.Z./1 and

(3) Medico-legal report Exh.P.W.9/1.

Muhammad Rafique (P.W.6) who is also complainant in the case stated that being contractor of M.C., he was assigned the work of digging the drain for filthy water of Makki Masjid. It was about 2 p.m. and he was busy in digging the drain through labourers alongwith P.W.7, Zahoorur Rehman Ex-Member of M.C. Abbottabad came to the spot. In the meanwhile appellant Muhammad Yousaf also came to the spot, started some altercation with deceased, the factum of which he could not understand and thereafter accused went towards his house, after some time he came out alongwith D.B. shot-gun and fired two shots one after the other at the deceased, as a result of which the deceased was hit on his abdomen as well as near his mouth, sustained injuries and fell on the ground. He was shifted in injured condition to the hospital where he lodged report Exh.P.A./1 in the shape of Murasila. Arif Ali P.W.7 and Abdur Rashid P.W.8 fully supported the version of complainant. No material contradiction could be brought on record by the defence though they were subjected to lengthy cross-examination. They are consistent on major aspect of the case. All the abovementioned P.Ws. deposed that they had seen the occurrence with their own eyes.
The argument of the learned counsel for the appellant that the P.Ws. are relatives of deceased and they had some grudge to falsely involve the accused has no force. Muhammad Rafique, (P.W.6), Arif Ali (P.W.7) and A Abdur Rashid (P.W.8) are independent persons. The relationship of Muhammad Rafique with the deceased has not been brought on record. Even if it is presumed for the sake of argument that he was related to deceased, then mere relationship is not sufficient to discard his testimony. It has not been brought on record that he had any motive to falsely implicate the appellant. Likewise Arif Ali (P.W.7) is a masson by profession and it was his first day when he participated in the digging of the drain arid before that sufficient digging of the drain had been completed. He was working on the day of occurrence with two Afghan refugees as labourers. This witness is resident of Mughalpura, Lahore and was residing at Mohallah Kehal for the last 20 years. This witness who is not permanent resident of the area where the occurrence took place, has no motive to falsely implicate the appellant.

28-A. The argument of the learned counsel for the appellant that the F.I.R. was lodged after due consultations and deliberations and there were material contradictions regarding recording of report has no force in it. The matter was reported by Muhammad Rafique (P.W.7) to the police party on its arrival in the hospital who later on verified the same to be correct. It is immaterial as to who recorded Murasila Exh.P.A./1. It is in evidence that the police official had hardly written the heading when the ink of the ball point finished, hence in order to avoid any doubt it was torn and the Murasila was dictated by Zulfiqar (P.W.10) to Mushtaq Hussain Shah (P.W.3). Zulfiqar Jadoon (P.W.10) has explained the said position in reply to a question put by the learned defence counsel. He stated:--

"It is incorrect to suggest that the Murasila was drafted not as per narration of the complainant. The Murasila as stated by me is not in my handwriting, therefore, the portion of examination-in-chief regarding this effect is incorrect. At the time of report when the heading of Murasila was drafted the ink of ball point finished, therefore, in order to avoid doubling in kind of ink the Murasila was drafted again. The heading of Murasila was torn by me alongwith his paper. It is incorrect to suggest that the heading of Murasila was initially drafted was torn for the reason that another version was mentioned therein and I was instigated by Abdur Rashid to draft the present report. "

This shows that the report was lodged promptly and there is no doubt about drafting of Murasila Exh.P.A. as per report of Muhammad Rafique (P.W.6).

Although the name of Haji Abdur Rashid (P.W.8) was not mentioned in the F.I.R. as eye-witness but the complainant had reported that the occurrence was witnessed by 2/3 other persons also. The presence of Haji Abdur Rashid (P.W.8) on the spot was admitted by the appellant in his statement recorded under section 342, Cr.P.C. There is also nothing on record to show that this witness was related to deceased. It is by now an established law that testimony of a witness cannot be discarded on the basis of relationship only. In a case Sharafat Ali v . The State 1999 SCMR 329 it was held:

It was urged before us that they are interested witnesses and being close relatives of the deceased, their testimony cannot be believed. No doubt, they are related, but mere relationship is no basis to discard their evidence. Furthermore, at no stretch of imagination they can be considered to be interested witnesses. An interested witness, as laid down by this Court on a number of occasions and particularly in the case of Niaz v. The State (PLD 1960 SC 38), is a person, who has a motive to falsely implicate a person."

Similarly in case Zakar Khan and others v. The State 1995 SCMR 1793 it was held:--

"However, the rule laid down by this Court in respect of the evidence of interested witnesses is only a rule of caution. No doubt, judicial authorities are replete with instances where a more cautious approach was preferred by the Courts while dealing evidence of a partisan witness but support in such case may be sought from other independent evidence the same would nevertheless depend upon the circumstances of each case. However, mere relationship of a prosecution witness to the complainant or other prosecution witness cannot render his evidence unreliable unless it is established that he had motive to implicate the accused falsely in the case."

The case of prosecution has been fully supported by recoveries from the spot in the shape of blood-stained earth, broken teeth of deceased, empty shell of .12 bore D.B. shot-gun, recovery of pellet extracted from the dead body of deceased during post-mortem examination and recovery of double barrel shot-gun at the pointation of accused.
The argument of the learned counsel for the appellant that recovery/discovery of double-barrel shot-gun at the pointation of accused has not been proved because no independent witness from the locality was associated by the prosecution. This argument equally has no force at all. The appellant was arrested on 9-1-1999 when his pre-arrest ad interim bail application was dismissed by the learned Sessions Judge. On 11-1-1999 the accused/appellant led the police to a drain situated adjacent to prohibited area and picked up the gun where he had concealed the same. The association of two respectable inhabitants of locality is not required in the case where the accused himself leads the police to a particular place and gets the articles F recovered. The plain reading of section 103, Cr.P.C. would show that the provisions of this section apply to a case where the police conducts search of a house/place to recover an article for which search is to be made and not to a case where anything is to be discovered in consequence of information given by or on the pointation of the accused. The recovery to be made on the pointation of accused is relevant under Article 40 of Qanun-e-Shahadat, 1984. Reliance is placed on Mir Muhammad v. The State 1995 SCMR 614 wherein it was held:--

"In the instant case the appellant had led the police to his house and pointed the place wherefrom gun was recovered. Neither search warrants were issued by Magistrate for the search of house of the appellant nor the police had searched his house/place of its own. The plain reading of section 103, Cr.P.C. would show that the provisions of this section apply to a case where the police conducts search of a house/place to recover an article for which search is made and not to a case where anything is to be discovered in consequence of information given by or on the pointation of accused. The recovery to be made on pointation of the accused is relevant under Article 40 of Qanun-e-Shahadat, 1984. The association of two respectable inhabitants of locality is not required in a case where the accused himself leads the police to a particular place and gets the articles, recovered."

It is in evidence that the recovered empty shell of .12 bore shot-gun and the gun discovered at the pointation of accused/appellant on 11-1-1999 was sent to Fire-arm Expert but the report of Fire-arm Expert Exh.P.Z./1 shows that the same were received on 16-1-1999. The delay in despatch of 1H crime-empties and the double-barrel shot-gun could not be made a ground for rejecting their value and worth. Wisdom has been sought from Sarwar and others v. The State 1987 SCMR 960 and Sajid and another v. The State 1998 PCr.LI 114.
The medical evidence also supports the case of prosecution. Dr. Fiaz Hussain Shah had examined Zahoor-ur-Rehman in injured condition at 2-40 p.f. on 20-12-1998 and found injuries on his person. He was referred to Ayub Medical Complex Hospital for further treatment where he succumbed to his injuries. He also conducted autopsy on the dead body of the deceased. He testified his post-mortem report Exh.P.W.9/1 to be in his handwriting and bore his signatures. He had also made endorsement on injury sheet Exh.P.W.9/2 and stated that the endorsement on Exh.P.W.9/2 was correct. The post-mortem report Exh.P.W.9/1 shows that the deceased had received fire-arm injuries near his mouth and on his abdomen and a pellet was also extracted from the dead body of deceased. Corresponding cut marks were also found on the clothes of the deceased. The report of Forensic Science Laboratory regarding blood-stained earth and the clothes of the deceased also support the case of prosecution.
The prosecution has proved its case beyond any shadow of doubt. The plea of accused that he was innocent because a case vide F.I.R. No.884 under section 436/506/427/341/147/148/149, P.P.C. was registered on ll 20-12-1998 at Police Station Cantt. Abbottabad against Matloob-ur-Rehman and others. The case against the accused and the case registered vide F.I.R. No.884 are two transactions of one and the same occurrence and that the landed property of the son of the appellant was trespassed by deceased party on the day of occurrence could not be proved by him through cogent evidence. Perusal of the F.I.R. of the case in hand shows that the occurrence took place at 14-20 hours whereas the occurrence in F.I.R. No.884 took place at about 17-15 hours, therefore, both the cases are not the result of one and the same occurrence.
We are now left with the question of quantum of sentence awarded by the learned trial Court to the appellant. The penalty of death awarded to the appellant appears to be on high side and we deem it appropriate that the cause of justice shall be met if the appellant is awarded life imprisonment for' the reasons; firstly, that it is in F.I.R. as well as in the statements of Muhammad Rafique (P.W.6) Arif (P.W.7), Haji Abdur Rashid (P.W.8) that an altercation took place between the appellant and deceased the factum o.` which could not be understood by them: It was the result of that altercation and exchange of hot words that the appellant went to the house and after some time came back with double-barrel shot-gun and fired two shots one after the other on the. deceased. In a case Aslam Parvez and another v. The State 1989 SCMR 389, Aslam Parvez and Nazir Ahmad alongwith three others were charged under sections 302/307/149 and 148, P.P.C. for committing murder of Muhammad Siddique and causing injuries to Muhammad Riaz and Muhammad Riasat alias Liaqat, the learned Sessions Judge, Gujrat vide judgment, dated 24-2-1982 held Aslam Parvez and Nazir Ahmad guilty of offence under sections 302/34 and 307/34, P.P.C. and sentenced each of them to death under section 302/34, P.P.C. and to a fine of Rs.5,000 or in default to three years' R.I. They were also directed to pay a sum of Rs.5,000 each as compensation under section 544-A, Cr.P.C. or in default of payment to suffer six months' R.I. Both the convicts filed Criminal Appeal No. 136 of 1982. The learned Division Bench of Lahore High Court while maintaining the above conviction, altered the sentence of death of Aslam Parvez and Nazir Ahmad to one of imprisonment for life. Aslam Parvez and Nazir Ahmad convicts filed petitions before August Supreme Court of Pakistan. It was held by the August Supreme Court of Pakistan.

"As for the question of enhancement of sentence, there is evidence on the record that there was exchange of hot words between the parties and thereafter firing started, as a result of which the complainant .party lost one man and two of them received injuries This being the factual position we are of the view that the sentence awarded to Aslam Parvez and Nazir Ahmad is neither capricious nor outrageous. Thus, both the petitions fail and are hereby dismissed."

Secondly the occurrence was not pre-planned but a chance meeting of both the parties resulted in a sudden fight in which appellant caused death of deceased. In case Ejaz Ahmad v. The State 1999 SCMR 151 it was held:--

"That it, a pre-planned case but a chance meeting of both the parties which created extenuating circumstances resulted in sudden fight in which appellant caused the death of the deceased. If the intention for the appellant was that of a pre-planned nature to kill the deceased he would have been looking for an opportunity and would have selected a place other than a vacant site where is a little possibility of eye-witnesses. In the circumstances we partially allow this appeal, reduce the death sentence of appellant to life imprisonment and enhance the fine of Rs.2,000 to that of Rs.20,000 which should be paid to the heirs of deceased on the realization or in default to suffer further R.I. for two years."

Thirdly, the deceased also contributed a little bit during the altercation. Reliance is placed on Mehram Hayat v. The State 1999 PCr.LJ 216 in which it was held that keeping in view the fact that there was no enmity between the parties and occurrence was sudden flare up in which the deceased also contributed a little bit we consider that award of maximum penalty of death on Mehram Hayat would not be well-warranted and, therefore, penalty of death imposed on him is converted into sentence of imprisonment for life under section 302(b), P.P.C. Fourthly, it is not known as to what had' transpired immediately before the occurrence. The substance of altercation' could not be understood by P. Ws. In case of Naubahar v. The State 1999 SCMR 637 it was held:--

"We are of the view that the prosecution has 'failed to prove the motive as sought to be set up. It is shrouded in mystery and what immediately transpired before the occurrence is unknown. In this view of the matter, we are of the view that it is not a fit case for the award of extreme penalty of death. Thus, while dismissing the appeal, we would modify and alter the sentence of death into one of life imprisonment. The appellant is, thus, sentenced to undergo imprisonment for life and to pay a fine of Rs.2,00,000 or in default thereof to suffer R.I. for a term of two years. The amount of fine, if recovered, shall be paid as compensation to the legal heirs of the deceased. The appellant shall also be entitled to the benefit of section 382(b), Cr.P.C."

Fifthly, there was a dispute over a piece of land between the deceased and the son of the appellant and the plea of the appellant was that the deceased party wanted to take forcible possession of the land by digging drainage and he exercised his right of defence to his property. The August Supreme Court of Pakistan in case Jan Ahmad and others v. The State 1989 SCMR 994 while maintaining the convictions under section 302/34, P.P.C., the death sentence on two counts were reduced to imprisonment for life. It was held:--

"Be that as it may, there is no denying the fact that transaction in respect of the lease was completed and the possession of the land in dispute has been delivered to the appellants. They were, therefore, to a certain extent within their right to defend their possession and in the course of that they caused the death of two persons and injured three witnesses. Though we uphold the conviction of the appellants under section 302/34, P.P.C., but we are of the view that in the peculiar circumstances of the case, capital punishment imposed upon Jan Ahmad and Wali Muhammad appellants would not be justified and the ends of justice would be met by altering the sentences of death awarded to Jan Ahmad and Wali Muhammad alias Wali Dad to imprisonment for life on two counts.. The fine imposed upon them is enhanced to Rs.10,000 each on two counts or in default of payment to three years' R.I. each on two counts."

Keeping in view the above discussion, we partially accept the Appeal No.44 of 1999 while upholding the conviction of the appellant under section 302, P.P.C. and alter the sentence of death awarded to Muhammad Yousaf to imprisonment for life, while maintaining order of the learned trial Court with regard to the payment of compensation we direct that the appellant shall pay Rs.50,000 as compensation to the legal heirs of deceased or in default shall undergo S.I. for six months. Murder Reference No. 10 of 1999 is answered in the negative.

H.B.T./93/P

Order accordingly.

PCRLJ 2000 PESHAWAR HIGH COURT 1812 #

2000 P Cr. L J 1812

[Peshawar]

Before Talat Qayum Qureshi, J

Mst. IQBAL BIBI---Appellant

Versus

THE STATE---Respondent.

Criminal Appeal No.52 of 1999, decided on 8th May, 2000.

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

----Art. 4---Appreciation of evidence---Failure to produce case properly in Trial Court---Benefit of doubt---Heroin weighing 50 grams was allegedly recovered from the accused and one gram out of the recovered quantity was sent to Chemical Examiner---Remaining 49 grams of heroin was not produced before the Trial Court---Trial Court on the basis of evidence on record convicted the accused---Validity--=Prosecution was to produce all evidence which was necessary to bring home the guilt of the accused beyond reasonable doubt whatsoever---Forty-nine grams of the heroin was though retained as case property but the same was neither produced before the Trial Court nor any certificate of concerned Magistrate regarding its destruction was produced on record---Effect---Where there was no case property available on record the matter had become doubtful, the benefit of which must go to the accused---Prosecution having not been successful to prove its case against the accused beyond any reasonable doubt, conviction and sentence passed by the Trial Court was set aside.

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

----Art. 4---Report of Forensic Science Laboratory---Delay of five days in despatching sample to the laboratory---Effect---Where there was no explanation available on record as to in whose custody the parcel was lying for five days, held, such delay had made the Report of Forensic Science Laboratory doubtful and unreliable.

----Art. 4---Criminal Procedure Code (V of 1898), S.103'---Recovery at public place---Non-associating private witnesses---Evidence of police officials---Validity---Where police officials had no mala fide or motive for falsely charging the accused,, such police officials were as good witnesses as other public witnesses---There was nothing on record to show that the Police Authorities were inimical towards the accused---Evidence of the Police Officials was admitted in circumstances.

Saud Akhtar Khan for Appellant.

Muhammad Ayub Khan, A.A. -G. for the State.

Date of hearing: 8th May, 2004.

JUDGMENT

This appeal is directed against the judgment and order, dated 14-9-1999 passed by learned Sessions Judge, Haripur whereby the appellant was convicted under Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 and was sentenced to undergo two years' R.I. and to pay a fine of Rs.5,000 or in default of payment of fine to undergo six months' R.I. Benefit of section 382-B, Cr.P.C. was also given to the accused-appellant.

2, Brief facts of the case are that on 29-6-1996 Muhammad Safdar Khan, S.H.O., Police Station Khalabat Township alongwith constables namely Saeed Akhtar I.M.C. and Irshad H.C. No.235, Arshad No.271 and lady constable Fukhraj Bibi No. 160 was present on Gasht at Chowk Syedan Sector No.2. In the meanwhile Mst. Iqbal Bibi alias Bali daughter of Abdul Latif came from street towards Chowk. On suspicion she .was stopped. Lady Constable Fukhraj Bibi No. 160 recovered a plastic bag from the hand of Iqbal Bibi which was checked and heroin was recovered from the bag which was weighed and found to be 50 grams. Out of the recovered heroin, one gram was sent for chemical analysis and remaining 49 grams were sealed in another parcel. The appellant/accused was arrested and Murasila for registration of case was sent to police station which culminated into registration of case vide F.I.R. No.263 at Police Station K.T.S. Haripur.

I have heard Mr. Saeed Akhtar Khan, Advocate the learned counsel representing the appellant and Mr. Muhammad Ayub, learned A.A.-CG. representing the State.
The argument of the learned counsel for the appellant that the prosecution has failed .to establish its case beyond shadow of doubt and is full of material contradiction has a force in it. Muhammad Irshad No.238 appeared' as P.W.1. In his cross-examination he stated:--

"After that he took one gram and packed and sealed into the parcel. He also placed a paper under the one gram heroin at the time of weighing one gram for chemical analysis. The empties Purries were also packed in a separate parcel after weighing the suspected material and the plastic bag was also packed into parcel It is correct that we all went back to police station after the patrol duty alongwith accused and case property. I cannot tell the exact weight of a Purries from where the sample was taken "

His statement indicates that the sack in which the alleged heroin was recovered contained Puris but Muhammad Safdar, S.H.O. who appeared as P.W.3 when cross-examined stated:--

"The alleged recovery was effected by Fukharj Bibi and then he produced the plastic sack and accused appeared before me and as per her statement she had recovered that sack from accused. There was no Purri in the plastic bag and the total heroin was lying in a lot in the plastic bag. I took one gram from total lot and not from one Purri because no Purri there."

On remand Mst. Fukhraj Bibi was examined as C.W.1, who in the cross-examination stated:

"I did not check whether there was any Purri or not, I only handed over the sack to the S.H.O. The scale was in the investigating bag -of the S.H.O. I cannot say that whether they placed the sack on one side or whether they placed the bots on other side or not. Because it was the job of police. In my presence sack was not weighed but one gram was taken out from material and was. weighed."

The statements of all the three P.Ws. contradict on the material point of recovery. P.W.1, stated the sack contained Purris and out of one Purri only one gram was sealed and sent to F.S.L. whereas Safdar P.W.3 stated that he recovered heroin in a lot and there was no Purri. C.W.1 stated that the heroin was not weighed in her presence and only one gram was taken out from the. sack and she was not aware as to whether the sack contained Purris or heroin in lot.

The other argument of the learned counsel for the appellant that the prosecution was duty bound to produce case property in Court but it failed to produce the same in Court. The case property being not available on record and the case against the appellant had become doubtful and benefit of which must be given to her has a force in it. It is an admitted position that no case property was produced during the trial although 50 grams were alleged to have been recovered from the appellant, out of which only one gram was sent to chemical analysis for examination and the rest, i.e., 49 grams were retained as case property. There is nothing on record to show that the remaining recovered powder was ever destroyed by the prosecution on the order of the Magistrate or was not available on record because no such order of the Magistrate was placed on record. It is the duty of the prosecution to produce all evidence which is necessary to bring home the guilt of the accused beyond any doubt whatsoever. In the present case, as mentioned above although 49 grams were retained as-case property but the same was neither produced before the trial Court nor any certificate of the concerned Magistrate regarding its destruction was produced on record. Since there was no case property available on the record the matter had become doubtful, the benefit of which must go to the appellant.
The third argument of the learned counsel for the appellant is that there was delay of 5 days in despatching the parcel to F.S.L. which makes the case of prosecution doubtful. This argument has force in it. The alleged recovery was affected on 29-6-1996 whereas the Report of the Chemical Analyst shows that one gram of heroin sent by prosecution was received in laboratory on 3-7-1996, i.e., with .the delay of 5 days. There is no explanation available on record as to in whose custody the said parcel was lying for 5 days. The delay in despatch of the recovered heroin has made the report of F.S.L. doubtful and unreliable.
The fourth argument of the learned counsel for the appellant is that the recovery was allegedly effected from the appellant in a Chowk which is busy but no person from public was associated. The recovery was only witnessed by the Police Officials, hence the entire recovery was doubtful. This argument of the learned counsel has no force. Police officials had no mala fide or motive for falsely charging the appellant. There is nothing on record to show that, the Police' Authorities were inimical towards the appellant. People from public now-a-days do not come forward in such-like cases to be cited as witnesses and there are chain of authorities in which the police officials have been declared. to be as good witnesses as that of public witnesses.
The net result of the above discussion is that the prosecution has not been successful to prove its case against the appellant beyond any reasonable doubt. As such, while giving benefit of doubt I accept the appeal and acquit the appellant. The conviction and sentence passed by the learned trial Court are set aside. The appellant shall be set at liberty if no more required in other case.

Q.M.H./M.A.K./107/P Appeal allowed.

PCRLJ 2000 PESHAWAR HIGH COURT 1826 #

2000 P Cr. L J 1826

[Peshawar]

Before Shahzad Akbar Khan, J

DILAWAR SHAH---Petitioner

versus

NADIR SHAH and another---Respondents

Criminal Miscellaneous Bail Cancellation Petition No.24 of 2000, heard on 26th May, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.337-F(v)---Bail, cancellation of---Registration of another case against accused while he was on bail--Effect---Court while enlarging accused on bail reposed confidence in the accused that accused .would not misuse liberty which was granted to him by way of exercising discretion in his favour---Accused was required not to betray confidence of the Court and in case of betrayal of the confidence, accused person would render himself disentitled to enjoy concession of bail---Registration of. second case against accused had spoken about flagrant misuse of bail allowed to accused which had disentitled accused to remain on bail---Order allowing bail to accused was recalled, in circumstances.

Qaisar Saleem Khan for Petitioner.

Muhammad Karim Anjum Qasuria and Saifur Rehman Khan for Respondent No. 1.

Mehmood Khan Khakwani for the State.

Date of hearing: 26th May, 2000.

JUDGMENT

Through the instant bail cancellation application, the petitioner Dilawar Shah has sought the cancellation of bail allowed to respondent No. l in case F.I.R. No.47, dated 7-.7-1999 registered under section 337-F(iv)/34, P.P.C., wherein besides ,the petitioner his brother namely Amir Shah was also charged for the offence.

The epitomical sketch of the instant petition is that on 7-7-1999 on the report of the petitioner a case as mentioned above was registered against the respondent and his co-accused namely Amir Shah charging them for causing injuries to the complainant with some sharp-edged weapon. In the said case both the accused absconded after the occurrence and proceedings under section 87, Cr.P.C. were carried out against them. Subsequently, pre-arrest bail application was made before the learned Sessions Judge and during its pendency on the intervention of the elders of the area a compromise was affected between the parties on the condition that the accused would not further harm the complainant party and his family members. On such an assurance of maintaining peaceful atmosphere the petitioner did not object to the grant of anticipatory bail which was consequently, allowed. The record shows that after his release on bail another incident took place on 2-11-1999 and a case was registered under section 337-F(v), P.P.C. vide F.I.R. No.76 in the same police station wherein the respondent No: l was charged for causing injuries to the complainant Anwar Shah with a knife. Record of the said case has also been requisitioned in connection with the instant application.
The learned counsel appearing on behalf of the petitioner argued that respondent No. l has misused the concession of bail allowed to him on the basis of compromise during which he had given assurance of remaining peaceful and would abstain from causing any harm to the complainant party. The subsequent event which took place on 2-1.1-1999 is a clear proof that the respondent No. l has misused the concession of bail notwithstanding his assurance which is contrary to the very concept of bail and in such a situation, he has disentitled him to enjoy the concession of bail any more.
On the contrary, the learned counsel appearing on behalf of respondent No. l has opposed the bail cancellation application and has stated that the subsequent .F.I.R. is based on mala fide and the injuries caused to Anwar Shah complainant of the case are self-inflicted and it is a device manufactured for depriving the respondent from enjoying his liberty. He made reference to certain. affidavits of the residents of the village and stated that people of the village have stated that no such occurrence has taken place in the village and as the village of the parties is a small one and if any incident takes place, the entire village get knowledge of the said event. Therefore, the event was described as false. He further, contended that the injuries caused to the complainant Anwar Shah in the subsequent case are on the non-vital part of the body but were caused on the finger of his right hand and as such according to the learned counsel, the offence is not of a serious nature so as to make it a justification for the cancellation of bail.

The learned State Counsel has also not supported the bail cancellation application on the ground that the Investigating Officer has expressed some doubt regarding the genuineness of the subsequent event.

I have heard the rival arguments of both the sides and anxiously gone through the record of both the cases. The respondent is directly nominated in the F.I.R. No.76 for causing injury to the complainant with a knife. The medical' report goes in line with the version of the complainant wherein injury No.1 is described as incised wound on the dorsal surface of the left thumb 2" x muscle deep (bone exposed). Besides the injured complainant, the occurrence was supported by P.W. Dilawar Shah, the brother of the' complainant. It is a 'noticeable feature of the case that regarding the previous incident the parties had reached to a compromise which was made the basis of confirmation of pre-arrest bail of the accused. Thus, apparently there remains no reason for manufacturing false ground for the cancellation of bail of the respondent. Moreover, in the previous case two accused were. granted bail, i.e. the present respondent and the other was his brother Amir Shah, but in the subsequent case only Nadir Shah has been charged against whom only this bail cancellation application has been moved and this visible feature of the case confirms the straightforwardness of the complainant and prima facie speaks about the genuineness of the charge:
It is a settled statement of law that while enlarging the accused on bail the Court reposes the confidence in the accused that he shall not misuse the liberty which was granted to him by way of exercising the discretion in his favour. The accused is required not to betray the confidence of the Court and in case of betrayal of such confidence, the accused person renders himself disentitle to enjoy the concession of bail. In the instant case, the registration of the second case at least speaks about the flagrant misuse of the bail allowed to the respondent and as such he has disentitled himself to remain on bail.
Consequently, I accept this bail cancellation application and recall the bail allowed to the accused/respondent No.1. He is present in Court, taken into custody and committed to the judicial lock-up. As stated by the learned counsel for the petitioner that trial of the case has been started wherein the next date of hearing is 8-6-2000; therefore, the learned trial Court is directed to conclude the trial within a period of three months. The office is also directed to send record of the case forthwith to the trial Court. Needless to mention that may above observations are tentative in nature for the purpose of disposal of the instant application and shall not influence the mind of the trial Court in any manner.

H.B.T./134/P Application accepted.

PCRLJ 2000 PESHAWAR HIGH COURT 1860 #

2000 P Cr. L J 1860

[Peshawar]

Before Abdur Rauf Khan Lughmani and Shahzad Akbar Khan, JJ

UMER KEYAZ alias RAKEYAZ---Appellant

versus

THE STATE and another---Respondents

Criminal Appeal No.47 of 1999, decided on 14th September, 1999

Penal Code (XLV of 1860)---

----S. 302---West Pakistan Arms Ordinance (XX of 1965), S.13---Appreciation of evidence---Accused after occurrence ran away and brother of deceased who was present there chased the accused which was neither unnatural nor impossible as accused had become armless after throwing Kalashnikov in the fields while running which subsequently was found by children in the field and was handed over to ladies of deceased's house--Kalashnikov which was used in the occurrence was produced by the complainant to Investigating Officer and it could not be said that Kalashnikov was planted upon accused ---Kalashnikov and empties recovered were sent to Forensic Science Laboratory for Expert's opinion and according to report empties were wedded to said Kalashnikov---Medical Report w a: completely in line with evidence of complainant---Complainant, who was real brother of deceased, could not be termed as interested witness merely because of his relationship with deceased because no animosity existed between complainant and accused---Testimony of complainant had fount strong support from statement of other prosecution witness ant circumstantial evidence in form of recovery of empties of Kalashnikov--Medical report had fully corroborated version of complainant and no circumstances existed which could have even remote tendency of undermining evidentiary value of ocular or circumstantial evidence--Points raised by accused in defence when placed in comparison to prosecution evidence were not so weighty and forceful as to outweigh or in any manner annihilate evidentiary force of prosecution evidence--Prosecution having succeeded in proving its case beyond any shadow of doubt against accused, conviction awarded by Trial Court to accused was not open to any interference, but as motive part of occurrence was shrouded in mystery, as also absence of immediate cause of attack by accused on deceased, punishment of death was not justified---Sentence of death was converted to life imprisonment, in circumstances.

1984 SCMR 836 and 1999 SCMR 1138' ref.

Dost Muhammad Khan for Appellant.

S. Saeed Hussain Sherazi, Asstt. A.-G. for the State.

Date of hearing: 14th September, 1999.

JUDGMENT

SHAHZAD AKBAR KHAN, J.--- The convict/appellant, namely, Umer Keyaz alias Rakeyaz, son of Umer Ayaz Khan alias Adam Khan, Caste Pasthoon, resident of village Nusrat Shal Khel, situated within the jurisdiction of Police Station Cantt. Tehsil and District Bannu, was initially tried by the learned Sessions Judge, Bannu, on the charge firstly, that he on 12-12-1991 at 8-00 hours, committed Qatl-e-Amd of Sher Ayub by firing at him with a kalashnikov and thereby committed an offence 2unishable under section 302, P.P.C. Secondly, that he on the same date, time and place had thrown the said kalashnikov which was subsequently recovered but he failed to produce any permit for its possession and, therefore, committed an offence under section 13, Arms Ordinance. The accused pleaded not guilty to both the said charges and claimed innocence. The learned trial Judge, therefore, recorded the prosecution evidence and after weighing the same came to the conclusion that guilt of the accused was proved beyond any shadow of doubt and, as such, on conviction he was sentenced to undergo imprisonment for life under section 302, P.P.C. with a fine of Rs.30,000, and in default whereof to further suffer two years' simple imprisonment, vide judgment, dated 26-4-1994.

The convict challenged his aforesaid conviction and sentence before this Court through Criminal Appeal NoA2 of 1994, which was accepted on the ground of jurisdiction alone and the case was sent back to the trial Court for trial de novo by the Special Court, vide judgment, dated 10-2-1998.
After remand, the accused was tried afresh by the Special Judge, Bannu under sections 302, P.P,C. and 13, Arms Ordinance and on conclusion of the trial, he was again found guilty for committing Qatl-e-Amd of the deceased and, therefore, h0e was convicted and sentenced to death sunder section 302(b), P.P.C. He was further directed to pay Rs.50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Besides, he was also found guilty for possession of unlicensed kalashnikov and cartridges and was, therefore, convicted and sentenced to three years' R.I. and a fine of Rs.5,000 or in default thereof to further undergo six months' simple imprisonment, vide judgment, dated 16-9-1998. Hence the instant appeal.
The prosecution story, as gleaned from the F.I.R. (Exh.P.A.), is that on the eventful day the complainant alongwith his brother Sher Ayub were busy in making shoes in their Baithock when at 8-00 hours, Umer Qiaz alias Raqiaz son of Umer Ayaz alias Adam duly armed with a kalashnikov entered in the courtyard of .the said Baithock and on seeing him (the accused), Sher Ayub also came out of the Baithock when in the meanwhile Umer Qiaz fired two shots at Sher Ayub with which he was hit, fell down to the ground and expired there and then. Thereafter, the accused ran towards the road-side who was followed by the complainant and overpowered at some distance. However, the complainant could not see the throwing of the kalashnikov in question by the accused during his running. In the meantime, Naqibullah, brother of the complainant, who was present inside the house, also reached near the complainant and they both brought the accused with them and detained him in their Baithock. However, no motive was given for the offence. On the basis of this report, case F.I.R. No.503 was registered against the accused, who after conclusion of the trial was convicted and sentenced as stated above, which is under challenge through the appeal in hand.
In order to prove its case against the convict/appellant, the prosecution in all examined nine witnesses. Of them, P.W.1 Latifullah, Foot Constable had accompanied the dead body of the deceased to the mortuary for post-mortem examination, while P.W.2, Ghulam Farid Khan, A.S.-I. and P.W.3 Muhammad Khan, Head Constable are marginal witnesses to the recovery memos. Exh.P.R., Exh.P.R./1 and Exh.P.R./2, vide which the Investigating Officer had taken into possession blood-stained earth, two empties of 7.62 bore, blood-stained shirt, a kalashnikov with its magazine and 19 cartridges. P.W.4, Rashid Gul is complainant of the case who has supported his first information report, while P.W.5, Naqibullah Khan is an eye-witness of the incident and also brother of the deceased. He had accompanied the deceased to the mortuary, and has fully supported the story disclosed in the first report.
P.W.6, Doctor Khalid Farooq Khan, Medical Officer, District Headquarters hospital. Bannu, had conducted autopsy on the dead body of the deceased on 12-12-1991 and found the following injuries on his person:--

(1) One fire-arm entry wound 1 /4 " x 1 /4" on right side or face 1 " to right side of right angle of the mouth, blackening marks are present.

(2) Fire-arm injury entry wound on right side of chest 1/4" x 2" below the right side of face blackening marks are present.

(3) Fire-arm injury outlet wound 6" x 5" on the right back of skull. The skull bones are scattered. Scalp bone scattered.

Membrane and brain damaged. Stomach contained semi-digested and semisolid food..

In his opinion, the deceased had died due to fire-arm injury to the vital organs, i.e. brain, leading to severe hemorrhage, shock and death. Time that elapsed between injuries and death was opined instantaneous while that between death and post-mortem examination was given to be 1-1/2 to 2-1/2 hours.
P.W.7, namely, Ras Ali Khan, co-villager of the deceased had identified his dead body in the hospital. P.W.8, namely; Muhammad Sikandar Khan was, during, the days of occurrence, posted as S.H.O. of Police Station Cantt., Bannu and has partly investigated the case and after completion of the investigation had submitted complete challan against the accused. P.W.9, Hashmat Ali Shah, Additional. S.H.O. of Police Station Cantt., Bannu had registered the case vide F.I.R. (Exh.P.A.) prepared the injury sheet (Exh.P.M./2) and inquest report (Exh.P.M./1) of the deceased and sent his dead body for post-mortem examination to the hospital under the escort of Latifullah Khan (P.W.1). He had, therefore, completed the remaining requisite formalities.
Mr. Dost Muhammad Khan, learned counsel for the appellant has assailed the judgment and the ensuing conviction and sentence recorded by the learned trial Court on the following grounds:--

Firstly; that the entire story of the prosecution and the mode of happening of the event is unnatural and does not appeal to the faculty of mind, as according to the learned counsel, it was impossible that the complainant could give a chase to the accused, who was equipped with a kalashnikov and in such a situation, the capturing of the appellant and overpowering him is not believable, Secondly; that the kalashnikov was not recovered from the possession of the appellant and a fake kalashnikov was planted upon him by the Investigating Officer.

Thirdly; that the Investigating Officer had not mentioned in the site plan the point wherefrom he had arrested the accused and this omission plus the recovery of kalashnikov attributed to the appellant are the eloquent indicators towards the dishonest investigation carried out by the Investigating Officer.

Fourthly; that the recovery of empties from the scene of occurrence, if compared to the location of the point where the appellant was shown firing on the deceased is not acceptable, as it appears contrary to the mechanical action of the weapon, as the accused was shown on the spot in the site plan wherefrom he statedly fired at the deceased Sher Ayub, whereas the empties were recovered from points Nos.4 and 5, which falls on the left side of the accused when he was shown firing at the deceased who was allegedly hit by the same, Fifthly; that the locale of the injuries shows that the deceased was not in a standing position but was hit in the lying position, Sixthly; that the blackening marks present on the body of the deceased would show that the fire was made on the deceased from a distance not beyond two feet, whereas the distance, in the instant case as is appearing from the site plan, is five feet. These factors go a long way to show that the complainant had not witnessed the occurrence, nor he was present at the crucial time, Seventhly; that P.W.5 Naqeebullah was a witness to the occurrence from the stage when the appellant was resisting the struggle of the complainant and he was overpowered by Naqeebullah and the complainant and was brought back to the Baithock where he was detained, Eighthly; that conviction cannot be based on the solitary statement of the complainant, who is closely related - to the deceased and no independent corroboration is forthcoming to substantiate the tainted testimony of the complainant; and

Ninthly/lastly that in case his submission did not find favour for the outright acquittal of the appellant, then in the circumstances of the case, the punishment of death is not warranted and a request for its reduction was made.

On the contrary, the learned counsel appearing on behalf of the complainant and the learned Assistant Advocate-General for the State have, with full force, defended the impugned judgment and the ensuing conviction and sentence. They argued that right from the beginning the appellant has been indicated for the offence being nominated in the F.I:R. and the version of the prosecution was consistently supported by the complainant being an eye-witness and P.W. Naqeebullah, who was also a material witness having seen the occurrence from the stage when immediately after the occurrence, the complainant and the appellant were grappling with each other close to the scene of occurrence. They further argued that testimony of both the witnesses is of such a high order and quality which despite a lengthy cross-examination was not shattered even minutely. The occurrence is of broad daylight and no question of identity is involved. No motive of false involvement has been established against the prosecution. The medical report fully corroborates the version of the complainant. They went on arguing that the kalashnikov used by the appellant having been found by the children in the nearby field and handed over the womenfolk of complainant's house was produced before the Investigating Officer on the next following day and the empties recovered from the venue of occurrence were sent to the Forensic Science Laboratory for expert opinion, which was received back with the report that the empties were wedded to the crime kalashnikov. The appellant was apprehended on the spot. Thus, all the above circumstances go a long way to establish the case of the prosecution beyond any doubt and, as such, the impugned judgment of the trial Court and the conviction and sentence recorded by it are not open to interference on any point.
We have heard the rival arguments of the parties and carefully gone through record of the case with the able assistance of the counsel for the parties.
We may observe that the points raised by the learned counsel for the appellant when placed in comparison to the prosecution evidence, none of the points so raised is so weighty and forceful as to outweigh or in any manner annihilate the evidentiary force of the prosecution evidence. However, for the sake of convenience and clarity of the matter, the points of the defence counsel are dealt with hereinafter.
The first point of the learned counsel for the appellant is that it is not conducive to the natural disposition of the mind that a person having committed a murder being in a desperate position could be given a chase by the brother of the deceased. This is neither unnatural nor-falls within the orbit of impossibility, because the real brother of the complainant was murdered before his eyes and the relationship which naturally boils the bloods does not care about the possible danger. The awe of committing a murder is also a factor which could dominate the murderer and moreover, the appellant had thrown the crime weapon in the nearby fields most probably under the influence that he may not be exposed to the general view and somebody may not see him running with the crime weapon in his hand as it was a day time. By the time when the complainant was grappling with the appellant, the appellant was empty-handed. Besides this, the brother of the complainant had also very immediately reached to give support to his struggle. Thus, we cannot agree to the submission of the learned counsel that l it was either unnatural or unlikely of a man to chase the appellant.
The second point is that the kalashnikov was fakely planted upon the appellant as it was produced subsequently. In this respect, we observe that if the Investigating Officer, or for that matter, the complainant, had any mind to produce a fake weapon, they could very conveniently do so on the very day of the occurrence and there was no logic for them to postpone the matter to the following day. In this regard, the Investigating Officer and the complainant were so upright that instead of showing the recovery of kalashnikov on the same day, it was very genuinely shown to have been produced on the following day. As is evident from the F.I.R., the weapon attributed to the appellant was a Kalashnikov from the very first moment. Thus, the Investigating Officer being expert in the field of investigation could direct the complainant to manage for the Kalashnikov on the very first day as the identity of the weapon was not in doubt. The story is quite natural that the children of the area found the Kalashnikov who handed over to the ladies of the victim's house and in turn it was produced by the complainant to the Investigating Officer. Therefore, we do not feel ourselves in agreement with the learned counsel for the appellant on this point too.
The third point of the learned counsel is also immaterial. It is a matter of evidence that the appellant after he was overpowered by the complainant party was detained in the Baithock of the complainant till the arrival of the S.H.O. wherefrom he was arrested. The fourth point is with regard to the recovery of two empties from two different points is contrary to the mechanical action of the weapon is also of no significance, as firstly the empty ejected by the weapon is neither a nail on or a peg which remains firm in the ground. An empty is obviously a loose object lying on the surface and a kick of the human toe or strike can disturb its place without having been noticed even. In the instant case, when the deceased was being taken by the people and the empties were lying close to the deceased, there could possibly be moved from one point to another by the foot strikes of the people gathered there. It is a common phenomenon that when a murder takes place, large number of people would gather on the spot. Thus, the point is not of any significance.
The fifth point of the learned counsel for the appellant is rather misconceived. The deceased was fired in a standing position by the appellant and the medical report shows that one fire-arm entry wound 1/4" x 1/4" was present on the right side of the face 1 " to right side of right angle of the mouth. The second injury was observed by the doctor as the fire-arm injury . entry wound on right side of the chest 1/4" x 2" below the right side of the face and the third was a fire-arm injury outlet wound 6" x 5" on the right back of the skull. The complainant at the very initial stage in F.I.R. had categorically stated that the appellant had fired two consecutive shots with which his brother Sher Ayub was hit on the head. Thus, the medical report is completely in line with the evidence of the complainant. The sixth point is that the blackening is not possible from a distance of five feet. Undoubtedly, the site plan shows that the distance between the assailant and the victim was five feet, but the stretch of hinds and the length of the weapon undoubtedly had curtailed the distance to a measure wherefrom the blackening could not be said to be impossible. Regarding the seventh objection that the P.W.5 Naqeebullah was not a witness to the occurrence from the initial stage, it too holds no water and is misconceived, as he had reached the spot soon after the incident and had very much witnessed the crime from the stage of grappling of complainant with the appellant. Regarding the 8tlt objection that the complainant is related to the deceased and no independent corroboration is forthcoming is also incorrect, because the complainant who is the real brother of the deceased cannot be termed as interested merely because of his relationship with the deceased, because there is no animosity existing between the complainant and the appellant. Moreover, the testimony of the complainant finds strong support from the statement of P.W. Naqeebullah and the circumstantial evidence in the form of recovery of the empties of Kalashnikov which were found wedded to the crime weapon. The medical report fully corroborates the version of the complainant and no circumstance exists which should have even a remote tendency of undermining the evidentiary value of the ocular or circumstantial evidence. We, therefore, regret our inability to agree with the learned counsel on- the point that the complainant is an interested witness.
It may also be observed that the trend of cross-examination of the defence counsel to evolve a theory for establishing lovely relations of the sister of the deceased with the appellant was incorrect. Such questions were put as a matter of suggestion which were strongly refuted by the witness. The effort of the defence was to prove that the deceased was willing to give the hands of his sister to the appellant, over which the complainant and P.W. Naqeebullah were unhappy and such unhappiness persuaded the complainant and P.W. Naqeebullah to kill their own brother Sher Ayub. The accused was examined under section 342, Cr.P.C. and no defence was produced. We understand that if there had been any such affair between the sister of the deceased and the appellant, the appellant would have very conveniently produced some defence witnesses to prove the .love affair. Moreover, it is also a matter of evidence that the sister of the complainant had died about 8/9 months prior to the occurrence.
The above discussed circumstances leave no difficulty in making a considered opinion that the prosecution has succeeded in proving its case beyond any shadow of doubt against the appellant. Thus, the finding of the learned trial Court with regard to the conviction of the appellant is correct and not open to any interference. However, the punishment of death, in the circumstances of the case, is not justified, as in the instant case, neither there is any motive for the commission of the offence, nor immediate cause of attack is known and in such-like circumstances where the motive is shrouded in mystery and the immediate cause of the attack is not known, the awarding of the maximum punishment of death is normally abstained. In this respect, we feel ourselves guided by the judgments reported in 1984 SCMR 836 and 1999 SCMR 1138.
Resultantly, the appeal is partially accepted and the sentence of death is commuted to life imprisonment, while the amount of fine and i compensation as ordered by the trial Court are kept intact. The murder], reference is answered in negative.

H.B.T./124/P Order accordingly.

PCRLJ 2000 PESHAWAR HIGH COURT 1903 #

2000 P Cr. L J 1903

[Peshawar]

Before Sardar Muhammad Raza, J

AFSAR ALI ---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous No.259 of 2000, decided on 14th April, 2000

Criminal Procedure Code (V of 1898)---

----S. 497---Prevention of Corruption Act (11 of 1947), S.5(2)---Penal Code (XLV of 1860); S.161---Bail, grant of---Illegal gratification tampering with recovery memos. ---Complainant volunteered to become a trap agent--Accused was charged of accepting illegal gratification of Rs.500 for supply of flour quota---Visible tampering with the recovery memos prepared before as well as after the trap was found---Effect---Was yet to be determined at. trial as to who made the recoveries and who were the witnesses thereof--Where there was a serious controversy to be resolved at trial, the accused was entitled to benefit of doubt at the stage of bail---Offence against the accused did not fall within the prohibitory clause of S.497, Cr.P.C. and the accused being a Government servant was not likely to abscond---Bail was' allowed in circumstances.

Jehanzeb Khan for Appellant.

Rasheed-ul-Haq Qazi, A.A.-G. for the State.

Date of hearing: 14th April, 2000.

JUDGMENT

Afsar Ali, a Junior Clerk in the Office of Deputy Commissioner, Swabi is apprehended and refused bail by the forum below on charges under section 161, P.P.C. read with section .5(2) of the Prevention of Corruption Act vide F.I.R. No.1, dated 22-1-2000 of the Anti-Corruption Establishment, Swabi, for accepting a bribe of Rs.500 from the complainant Ijaz Ahmed, who had volunteered to become a trap agent.

.2. The background is to the effect that the complaint was a shopkeeper to whom flour quota of fifty bags daily used to be delivered. His quota was abolished and instead given to somebody else. Accused was responsible for the distribution of quota and. when resorted to for the needful, he demanded the bribe of Rs.500 and the remaining was to be paid after the needful.

It is not on record as to how a 'Junior Clerk in the Office of Deputy Commissioner could be responsible for the supply of quota and for stopping such supply. His position for exploiting the complainant remains yet to be determined at trial.
There is a visible tampering over .the recovery metros prepared before as well as after the trap and hence it remains yet to be determined at trial as to who made the recoveries and who were the witnesses thereof. Till this serious documentary controversy is solved at trial, the petitioner is entitled to the benefit of doubt at the stage of bail.
The offence prima facie does not fall within the prohibitory clause of section 497, Cr.P.C. and the petitioner being a Government servant, is not likely to abscond. The application is accepted and the petitioner is directed to be released on bail provided a bond in a sum of Rs.1,00,000 (one lac) with two sureties each in the like amount is furnished to the satisfaction of learned Special Judge, Anti-Corruption.

Q.M.H./M.A.K./103/1 Bail granted

PCRLJ 2000 PESHAWAR HIGH COURT 1914 #

2000 P Cr. L J 1914

[Peshawar]

Before Talat Qayum Qureshi, J

BADREY and 3 others---Petitioners

versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1393 of 1999, decided on 26th May, 2000

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

----S. 497---Bail, grant of---Case not falling in the prohibitory clause of S.497(l), Cr.P.C.---Effect---Where accused was charged with such provision of law 'which did not fall in the prohibitory clause of S.497(l), Cr:P.C. withholding of bail as a measure of advance punishment would neither promote the cause of justice nor advance object of law.

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

----S. 497---Penal Code (XLV of 1860), S.419/420/468/471---Bail, grant of---Compromise---Effect---Element of fraud or dishonesty on the part of the accused persons was yet to be discovered during the trial---Complainant had compromised the matter with the accused persons and had no objection to the release of the accused on bail---Bail was granted in circumstances.

Mian Fasih-ul-Mulak for Petitioners.

Muhammad Ayub Khan, A.A. -G. for the State.

Date of hearing; 26th May, 2000

JUDGMENT

Having been involved in case registered vide F.I.R. No:361,.dated 17-8-1999 under section 419/420/468/471, P.P.C. at Police Station Kabal, the accused-petitioners applied for their release on bail in the Court of learned Ilaqa Qazi, Swat but the same was dismissed vide order, dated 16-10-1999. Thereafter, they moved the Court of learned Additional Sessions/Azafi Zila Qazi, Swat but their application met the same fate and was dismissed vide order, dated 1-I 1-1999. They have moved this Court for their release on bail.

Habibullah complainant submitted an application to the S.S.P., Swat to the effect that the accused-petitioners by playing fraud upon him grabbed Rs.34,000 in order to get him visa from Qattar. They neither provided Visa nor returned the money. On his application the S.S.P., Swat vide his order, dated 17-8-1999 directed the S.H.O., Kabal to proceed in accordance with law on which the present F.I.R. was registered.
The main argument of the learned counsel for the petitioners is that the petitioners are innocent and have been falsely implicated in the case. Sections- 420/468 and 471 are bailable while maximum sentence envisaged in section 419, P.P.C. is 7 years. The dispute if any between the parties is that of a civil nature and needs determination by the Civil Court. It was also argued that the complainant has compromised the matter and has no objection if the petitioners are released on bail. In this regard compromise and affidavits o complainant are also placed on file.
On the other hand the learned A.A.-G. opposed the grant of bail on the ground that a gang consisting of accused and other have defrauded many innocent people and looted a huge amount from them, hence they do not deserve to be released on bail.
I have heard the learned counsel for the parties and perused the record.
A case for grant of bail is made out; firstly, because the sections of law with which the accused-petitioners are charged do not fall under the prohibitory clause of section 497, Cr.P.C. and withholding of bail as a measure of advance punishment would neither promote the cause of justice nor object of law; secondly, the complainant has compromised the matter with the accused-petitioners and the learned counsel for the petitioners has placed the compromise as well as affidavit executed by the complainant that he has no objection if the accused-petitioners are released on bail; thirdly the i investigation of the case is complete and challan of the case is likely to be put into the trial Court. The conclusion of trial of accused would obviously take some time but its conclusion could not be predicted; fourthly, the element of fraud or dishonesty on the part of the accused is yet to be discovered during the trial. I, therefore, direct that the accused petitioners be released on bail -provided they (each one of them) furnish bail bonds to the tune of Rs.2,00,000 (two lacs) with two sureties each in the like amount to the satisfaction of Judicial Magistrate, Swat who shall see that the sureties are local, reliable and men of means. Announced.

Q. M. H. /M. A. K./106/P Bail granted.

PCRLJ 2000 PESHAWAR HIGH COURT 1919 #

2000 P Cr. L J 1919

[Peshawar]

Before Shahzad Akbar Khan, J

ASIF JAN---Petitioner

versus

ZIL-E-HUSSAIN SHAH and 2 others---Respondents

Criminal Quashment Petition No. l of 1999, decided on 17th April, 2000.

Criminal Procedure Code (V of 1898)---

----Ss. 198-A & 561-A---Penal Code (XLV of 1860), S-500/501/502--Complaint ---Competency---Petition for quashing of order---Private complaint under S.500/501/502, P.P.C. was filed by Sub-Inspector of Police himself through Public Prosecutor, but without first obtaining proper sanction for prosecution in terms of S.198-A, Cr.P.C.---Complainant being public servant employed in connection with affairs of the Province, previous sanction of Government concerned for filing complaint was essential under provisions of S.198-A, Cr.P.C.--.-Words "previous sanction" would demonstrate that before filing of complaint sanction required under 5.198-A, Cr. P. C. would be ~ obtained by Public Prosecutor which would mean that sanction must precede filing of complaint ---Soliciter was not authorised to give the sanction, because sanction required by law was that of Government of the Province concerned of which complainant was an employee---Court below, in circumstances, had rightly found that complaint filed without first obtaining the sanction was incompetent---Petition filed by complainant/ petitioner .against order of Court below under S.561-A, Cr.P.C. was again filed by petitioner in his private capacity---Requirement of law being that no complaint could appropriately be fled by any public servant except after obtaining due sanction from the Government concerned, petition filed by complainant/petitioner under S.561-A, Cr.P.C. in private capacity, would equally be incompetent unless it was filed by any Government functionary authorised to do---Complaint and petition under S.561-A, Cr.P.C. incompetently filed were rightly dismissed by Court below, in circumstances.

1998 PCr.LJ 35 and PLD 1997 Pesh. 166 ref.

Dost Muhammad Khan for Petitioner.

Sanaullah Khan Gandapur for Respondents Nos. l and 2.

Muhammad Khan Khakwani for the State.

Date of hearing: 17th April, 2000.

JUDGMENT

The petitioner, Asif Jan, who is a Sub-Inspector of Police No. D/21, had filed a private complaint under section 500/501/502, P.P.C., against respondents Nos. l and 2, on the ground that respondent No.2, who is Editor of Weekly Newspaper "Tarjaman/Inkishaf", D.I. Khan, on the instigation of respondent No. 1, published some defamatory material against him in Weekly Tarjaman with a view to damage his reputation. This complaint was filed by the petitioner himself through the Public Prosecutor, D.I. Khan.

The complaint was contested by the respondents chiefly on the ground that proper sanction for prosecution has not been obtained in terms of section 198-A, Cr.P.C. The learned Additional Sessions Judge, D.I. Khan, who was seized of the matter did not accept the legal objection, whereafter the respondent moved this Court by way of a Revision Petition No. 11 of 1996 which was dismissed on 2-7-1997 on the assurance given by the learned counsel for the respondent (petitioner herein) to the effect that a separate sanction order for prosecution of the complaint has been solicited from the Secretary to Law Department, Government of N.-W.F.P., Peshawar, and the same would be available within a week's time and will be placed on .the record of the case for satisfaction of the petitioners (now respondents).
Since, in the instant case, the pivotal point is the compliance of section 198-A, Cr.P.C., therefore, in order to grasp the controversy, the said section, to the extent of its relevancy, is reproduced below:--

"198-A. Prosecution for defamation against public servants in respect of their conduct in the discharge of public functions.--- (1) Notwithstanding anything contained in this Code, when any offence falling under Chapter XXI of the Pakistan Penal Code (Act XLV of 1880) is alleged to have been committed against the President, the Prime Minister, a Federal Minister, Minister of State, Governor, Chief Minister or Provincial Minister, or any public servant employed in connection with the affairs of the Federation or of a Province, in respect of his conduct in the discharge of his public functions, a Court of Session may take cognizance of such offence, without the accused being committed to it for trial, upon a complaint in writing made by the Public Prosecutor.

(2) .

(3) No complaint under subsection (1) shall be made by the Public Prosecutor except with the previous sanction.

(a) ...................................................................................

(b) ...................................................................................

(c) in the case of any public servant employed in connection with the affairs of the Federation, or of a Province, of the Government concerned. "

Thus, it would be clear to understand that by virtue of clause (c) of subsection (3) to section 198-A, Cr.P.C., in case of any public servant employed in connection with the affairs of the Federation or of a Province, the previous sanction of the Government concerned would be essentially needed.
In the instant case, the Solicitor Government of N.-W.F.P., vide Letter No.SLT-3(5)95/6458, dated 27-9-1995 in response to Letter No.51-25, dated 10-9-1995 authorized Public Prosecutor, D.I. Khan to file a complaint in the Court of Sessions Judge. On 1,6-7-1997, i.e. subsequent to the order of this Court, dated 2-7-1997 wherein assurance regarding the procurement of , the sanction from the Secretary, Law Department, Government of N.-W.F.P., was given, the Solicitor issued another Letter bearing No.SLT-704-6, dated 16-7-1997.. This letter was based on the letter of Home Department Letter No.SO(FI)HD/1-2/82/8656, dated 1-7-1997 which was considered as a sanction by the Government concerned by the Solicitor. However, no sanction by the Secretary, Law Department, Government of N.-W.F.P., was obtained in terms of the assurance given by the petitioner to this Court in the erstwhile revision petition. Thus, the learned Additional Sessions Judge while taking into consideration all the circumstance and assessing the legal status of the Solicitor came to the conclusion that the said letter of the Solicitor cannot be equated with the sanction of the Government and, as such, for want of proper/legal sanction, the complaint of the petitioner was dismissed, vide his order, dated 3-12-1998. The petitioner feeling dissatisfied has filed the instant petition.
It may also be observed that the instant petition is also filed by the petitioner in his private capacity and has not been filed by the learned Public Prosecutor, by the State or by any person authorized by the Government. It is also a noteworthy feature of the case that the State was not made party in this case and in this connection on 18-10-1999 Mr. Sanaullah Khan Gandapur, the learned counsel for the respondents had raised an objection that the State has not been made a party in this case notwithstanding the fact that primarily the State is substantively involved in the matter. The learned counsel for the petitioner had no objection to the impleadment of the State and, as such, the State was transposed as respondent and notice was accordingly issued to it for 1-11-1999 and thenceforth the State was duly represented by the learned State Counsel.
The learned counsel appearing on behalf of the petitioner has assailed the judgment of the lower Court by contending that the learned Additional Sessions Judge was not correct in arriving at the conclusion that no proper sanction was obtained by the petitioner for filing of the complaint. He submitted that the letter issued by the Solicitor was sufficient compliance of section 198-A, Cr.P.C. and the authorization given by the Solicitor cannot be treated as sanction of the Government of N.-W.F.P. He also contended that the assurance given by the petitioner to this Court during the previous revision petition was also complied with when the Solicitor issued the second letter, dated 16-7-1997 and no matter if the sanction of the Secretary, Law Department, Government of N.-W.F.P., could not be obtained.
On the contrary, the learned counsel .for respondents Nos. l and 2 has defended the impugned judgment of Additional Sessions Judge and has vehemently argued that the authorization letter issued by the Solicitor can never be considered as a sanction of the Government. The learned counsel went on arguing that the concerned Government would always mean the concerned Secretary which, in the instant case, is the Secretary of Law Department, Government of N.-W.F.P. and to this effect the assurance was given by the petitioner to the Court that proper sanction from the Secretary of Law Department would be obtained, which he has miserably failed to do.
Mr. Muhammad Khan Khakwani, the learned counsel for the State has also not supported the present petition and has categorically stated that in \the instant case the State, or for that matter, the learned Public Prosecutor, or any other Government functionary, has not filed the present application and, as such, the State does not support the present petition. He contended that no private petition under section 561-A, Cr.P.C. can be filed by the present petitioner in his private capacity and this being a serious legal infirmity in the present petition, it deserves outright dismissal. The learned State Counsel also contended that the letter issued by the Solicitor is by no way compliance of section 198-A, Cr.P.C., as the Solicitor does not figure anywhere in the Cr.P.C. to be a competent person to grant sanction for prosecution in terms of section 198-A, Cr.P.C. Thus, according to the learned State Counsel, the letter of authorization issued to the Public Prosecutor by the Solicitor of Government of N.-W.F.P. is not a sanction in the legal sense. The learned State Counsel has relied on 1998 PCr.LJ 35 for the purpose of analogy. He has also made a reference to PLD 1997 Pesh. page 166 and contended that proceeding on the premises of the said judgment, it would not be difficult to conclude that only the nominee by law can initiate the action and no other person who is not specifically authorized by law or unless the powers/functions of such a nominee are delegated to any person duly authorized by law.
I have heard the rival arguments of the learned counsel for the parties and gone through the record. The very complaint was filed on 5-9-1995 and obviously at the time of filing the complaint, sanction of the Government concerned was not obtained and it appears that the Public Prosecutor wrote a Letter No.25 on 10-9-1995 to the Solicitor for obtaining the required sanction and the letter of the P.P. was responded by the Solicitor through her letter, dated 27-9-1995 giving him the authorization to file a complaint. This is an eloquent indicator which shows that the complaint was filed without obtaining the required sanction, whereas subsection (3) of section 198-A, Cr.P.C., reproduced above, clearly speaks that no complaint under subsection (1) of section 198-A, Cr.P.C. -shall be made by the Public Prosecutor except with the previous sanction. The words "previous sanction" carries a great significance and it demonstrates that before filing of the complaint, the required sanction shall be obtained by the Public Prosecutor. In other words, the sanction must precede the filing of the complaint. More to it, it is also a significant feature of the case that the Solicitor is not authorized to give sanction, because sanction required by law is that of the Government of the Province concerned of which the servant is an employee. Thus, for a couple of reasons, the instant complaint could not be considered as a legally instituted complaint, Firstly; that no previous sanction was obtained, and Secondly that the authorization of the Solicitor could not be considered as a sanction demanded by law. It is also evident that the petitioner, notwithstanding his assurance given to this Court that he will procure the sanction of the Secretary, Law Department ` Government of N.-W. F. P., in a week's time, he failed to obtain the sanction. Therefore, in view of such circumstances, the learned lower Court was perfectly right in 18 holding that proper sanction has not been obtained.
Now adverting to the competency of the instant petition, I may observe that this petition under section 561-A, Cr.P.C. is again filed by the petitioner in his private capacity. Since it is the requirement of law that no complaint can appropriately be fled by any public servant except by the P.P. after obtaining the due sanction from the Government concerned, therefore, the filing of the instant petition in a private capacity. would equally be incompetent unless it is filed by any Government functionary authorized to do. It can never be accepted by the faculty of mind that if at the first instance the employee concerned is required by law to file a complaint, how he would be allowed to file a petition under section 561-A, Cr.P.C. in his private capacity. Moreover, the State has flatly refused to support the instant petition and such a refusal would cast a very serious affect upon the maintainability of the instant petition. It was primarily a privilege of the State which could move this Court, if felt dissatisfied with the order of the dismissal of the complaint.
In view of the above discussion, I feel obliged to hold that neither the complaint was filed in accordance with law in the lower Court, nor the instant petition is competent.
The result of the above discussion is that the petition being devoid of force is dismissed.

H.B.T./115/P Petition dismissed.

PCRLJ 2000 PESHAWAR HIGH COURT 1951 #

2000 P Cr. L J 1951

[Peshawar]

Before Abdur Rauf Lughmani and Shahzad Akbar Khan, JJ

WAHEED MURAD---Petitioner

versus

AJMAL KHAN and another---Respondents

Criminal Bail Cancellation Applications Nos. 177 of 1998, 79 and 148 of 1999, decided on 6th April, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.324/34---Bail, cancellation of---Case of further inquiry---Essentials---Trial Court granted bail to accused holding that case against accused fell within scope of further inquiry--Accused were directly charged in F.I.R. for an offence which carried punishment falling under prohibitory clause of S.497, Cr.P.C.---Evidence of complainant, version of injured and that of prosecution witness available on record was against accused---All circumstances were sufficient to provide ground for believing that accused, prima facie, were connected with the offence charged with---Simply non-recovery of empties from spot and presence of accused on another point than jungle as mentioned in F.I.R., were not of that efficacy which could give effect of outweighing the evidence of prosecution---Trial Court, in circumstances, was not justified to conclude that case against accused fell within scope of further inquiry---Every hypothetical question which could creep into the mind and which could be resolved only after recording evidence during trial, would not make case that of further inquiry---Case of further inquiry would only be made out when data collected by prosecution was not sufficient to provide reasonable grounds for believing that a prima facie case existed against accused--Discretion exercised by Trial Court in releasing accused on bail in circumstances, was not correct---Order granting bail to accused was set aside.

Dost Muhammad Khan for Petitioner.

Pir Liaqat Ali Shah for Respondent No. l.

Malik Ramesh Gul for the State.

Date of hearing: 6th April, 2000.

JUDGMENT

SHAHZAD AKBAR KHAN, J.--- This order shall commonly dispose of Criminal Miscellaneous No.177 of 1998, Criminal Miscellaneous No.79 of 1999 and Criminal Miscellaneous No. 148 of 1999, as all the three petitions have arisen out of a single F.I.R. No.258, dated 26-8-1999 under section 324/34, P.P.C. registered at Police Station Saddar at the behest of the complainant Waheed Murad, wherein the accused/respondents herein have been admitted to bail by the learned Special Judge, Bannu on 8-9-1998, 6-5-1999 and 11-10-1999 respectively. The complainant Waheed Murad is aggrieved of the said orders and sought the cancellation of bail, thus, allowed to the accused/respondents through the aforesaid three orders.

According to the story narrated by the complainant in his initial report made in the emergency room of Civil Hospital, Bannu where he has brought his injured father Bakhtabaz on 24-6-1998 at 8-40 hours in a Datsun Pick-up, the complainant alongwith his father were proceeding towards Shakarbaz (his uncle) who was ploughing tractor in his field situated near the graveyard of village Mardi Khel and on reaching him, he noticed Asghar Ali, Khushdil, armed with Kalashnikovs and Ajmal armed with a D.B. shotgun already present in the jungle of dates. On seeing the complainant and his father, under the command of Asghar Ali, all the three fired at them with their respective weapons with which Bakhtabaz, father of the complainant, was hit and fell to the ground, while the complainant luckily escaped unhurt.
The learned counsel appearing on behalf of the petitioner in support of the bail cancellation vehemently argued that the impugned orders of the learned Special Judge releasing, the accused/respondents on bail are patently illegal and he has proceeded on the premises which are alien to the principles governing the grant of bail. The points which prevailed upon the lower Court are not sufficient in any manner to grant the concession of bail to the accused who are directly charged in the F.I.R. lodged with the reasonable promptitude and the occurrence took place in the broad daylight. The ocular evidence of a high standard and quality is forthcoming against the respondents. The learned lower Court, according to the learned counsel for the petitioner, has fallen into a grave error that the empties were not found on the spot and that the accused were stated to be present in dates jungle while in the site plan they were shown in the under-construction house. The learned counsel argued that it is clearly mentioned in the F.I.R. that the accused were present in the jungle of dates trees but when they saw the complainant party, all of them came near to them and accused Asghar Ali commanded the co-accused to kill and on such command all fired at them and their firing produced the effect of hitting the father of the complainant who fell on the spot. The exact words used by the complainant are as under:--

This means that the firing was not made from the jungle of dates but when they reached near the victim, they opened fire at him. He further argued that the motive for the occurrence is also mentioned in the F.I.R. Besides the complainant and his injured father Bakhtabaz, the occurrence was also witnessed by Shakarbaz whose statement. was recorded under section 161, Cr.P.C. and has fully corroborated the version of the' complainant. He argued that the injured was hospitalized for more than a month and the injuries caused to him were declared serious in nature by the doctor.

On the other hand, the learned counsel for the accused/respondents has defended the bail granting order and has stated that the case of the respondents conveniently falls within the scope of further inquiry and the learned lower Court has rightly exercised his discretion.
We have considered the arguments of both the sides and gone through the record. The accused/respondents are directly charged in the F.I.R. for an offence which carries punishment falling under the prohibitory clause of section 497, Cr.P.C. The evidence of the complainant, the version of the injured and that of P.W. Shakarbaz is available on the record against the accused/respondents. All these circumstances are sufficient to provide grounds for believing that the respondents are, prima facie, connected with the offence charged with. The simple non-recovery of the empties from the spot and presence of the accused on another point than the jungle of dates (which has also been explained by the complainant, but escaped the attention of the learned lower Court) are not of that efficacy which could give they effect of outweighing the evidence of the prosecution and, as such, it was incorrectly concluded by the learned lower Court that the case of the respondents fell within the scope of further inquiry. We may observe that every hypothetical question which may creep into the mind and which could be resolved only after recording the evidence during the trial would not make the case that of further inquiry. The case of further inquiry would only be made out when the data collected by the prosecution is not sufficient to provide reasonable grounds for believing that a prima facie case existed against the accused. In such circumstances, we hold that the discretion exercised by the learned lower Court in releasing the accused/respondents on bail is not correct. Resultantly, we accept all the three petitions, set aside the impugned orders of the Court below and recall the bail granted to the accused/respondents herein. They are present in Court, be taken into custody and remanded to judicial custody. Since the challan is complete from 31-7-1998 for the purpose of proceeding under section 512, Cr.P.C., therefore, the prosecution is directed to put the same in Court within a week from receipt of record, whereafter the trial Court shall conclude the trial within a period of three months. The office is directed to transmit record of the case forthwith to the concerned quarter.

H.B.T./W-112/P Petitions accepted.

PCRLJ 2000 PESHAWAR HIGH COURT 1962 #

2000 P Cr. L J 1962

[Peshawar]

Before Sardar Muhammad Raza Khan, C. J. and Malik Hamid Saeed, JJ

SIKANDAR SHAH and another---Appellants

versus.

THE STATE---Respondent

Criminal Appeal No.242 of 1997, decided on 27th April, 2000.

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

----S. 302/307/34---Appreciation of evidence---Dying declaration--Complaint by deceased attributing specific role to the accused persons--Complainant soon after the occurrence had narrated the occurrence to the police in hospital in injured condition in presence of doctor---Such statement of the deceased was certified by the doctor that the same was recorded in his presence and the deceased was fully conscious and capable, to make statement---Deceased had directly charged the accused persons by attributing the specific roles of firing and motive for the commission of the offence was also disclosed---Effect---Where the dying declaration of the deceased and statement of prosecution witness were having every material support from the other circumstantial evidence and the same was credible and worth reliance, such evidence was rightly relied upon by the Trial Court--Conviction and sentence imposed by the Trial Court was maintained.

PLD 1958 Pesh. 147; PLD 1989 SC 633 and PLD 1990 SC 1172 ref.

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

----S. 364---Confession---Where confessional statement was fully consistent with the oral and circumstantial evidence, no illegality was committed by Trial Court in placing reliance on such part of the statement.

----Art. 12---Penalty to offender---Scope---Offender could not be inflicted greater or a different penalty which was not prescribed when the offence was committed under Art.12 of the Constitution---Provision of Art.12(1)(b) of the Constitution was related to the punishment prescribed by law and did not deal with the power of trial forums.

Qazi Muhammad Anwar for Appellant.

Ishtiaq Ibrahim, Asstt. A.-G. for the State.

Khawaja Muhammad Khan for the Complainant.

Dates of hearing: 16th and 17th February, 2000.

JUDGMENT

MALIK HAMID SAEED, J.--- Sikandar Shah son of Abdul Aziz and Akbar Shah son of Qalandar Shah, accused-appellants, faced trial in the Court of learned Sessions Judge/Zilla Qazi, Buniar at Daggar on the charges that they on 11-7-1990 at 12-00 noon in furtherance of their common intention:

(i) committed the murder of Gul Taj (complainant) by firing at him, (ii) committed the murder of Noor Muhammad Khan by firing at him, (iii) committed the murder of Sarzamin by firing at him, (iv) caused fire-arm injuries to Mst. Sherinai, wife of Gul Majid; and also

(v) caused fire-arm injuries to Bakhat Mand.

The learned trial Judge found the accused-appellants guilty of the charges and accordingly convicted and sentenced both the appellants vide judgment, dated 2-9-1997 as under:--

(a) Under. section 302/34, P.P.C. for the murder of Noor Muhammad, death sentence with a fine of Rs.2,000 each or in default to undergo one year's R.I. Half of the fine, if recovered shall be paid, to the legal heirs of the deceased as compensation.

'(b) Under section 302/34, P.P.C. for the murder of Sarzamin, death sentence with a fine of Rs.20,000 each or in default to undergo further one year's R.I. Half of the fine, if recovered, was ordered to be paid to the legal heirs of the deceased as compensation.

(c) Under section 307/34, P.P.C. for causing fire-arm injuries to Mst. Sherinai, 3 years' R.I. with a fine of Rs.2,500 each or in default to suffer one month R.I.

(d) Under section 307/34, P.P.C. for causing fire-arm injuries to Bakht Mand, 3 years' R.I. with a fine of Rs.2,500 each or in default to suffer one month R.I.

As the legal heirs of deceased Gul Taj compromised the matter with the appellants in the trial Court, therefore, the appellants were acquitted of the charge of murder of Gul Taj, deceased.

The learned trial Judge has also sent murder references for confirmation or otherwise of the death sentences of the appellants to this Court, which are also before us. The same shall also be answered through this judgment in Criminal Appeal No.242 of 1997.

The prosecution case as disclosed in the F.I.R.-cum-dying declaration, Exh.P.A., lodged by Gul Taj, complainant, in injured condition at Civil Hospital, Daggar on 11-7-1990 at 12-00 noon is to the effect that on the day of occurrence, he alongwith Noor Muhammad and Sarzamin Khan sons of Najim, residents of Kattakot after attending date of hearing in the Court at Daggar were returning to their village in Bus No.2485/SW, when at 12-00 noon reached at Sawari Bazar Adda, there emerged Akbar Shah son of Qalandar Shah armed with a single barrel shot-gun and Sikandar Shah son of unknown, residents of Chinarr armed with .7 m.m. rifle ands started firing at them in the bus. With the fire shots of Akbar Shah, Sarzamin was hit and from the fire shots of Sikandar Shah, Noor Muhammad received fire-arm injuries whereas from the firing of both the accused he himself and Mst. Sherinai wife of Gul Majid (another passenger of the bus) and Bakht Mand received fire-arm injuries. Noor Muhammad received injuries on left side of the chest, Sarzamin received injuries on the back of the body, Mst. Shermai on her head, Bakht Mand on left side of the neck whereas he himself received injuries on the back right side of hip. The accused after the occurrence decamped from the spot. The complainant further stated that besides him the occurrence has been witnessed by other persons also who were present on the spot at that time. The motive for the occurrence was disclosed to be blood-feud enmity. It was also disclosed that Noor Muhammad and Sarzamin have succumbed to their injuries.
The report of the injured-complainant was reduced into writing in the shape of Murasila by Muhammad Amin, S.H.O., in presence of Doctor Zafar Ali (P.W.5) who also certified that the injured was in senses at the time of making his report to the police.
Dr. Zafar Ali Khan, P.W:5, on 11-7-1990 examined the external injuries on the dead bodies of Noor Muhammad and Sarzamin and opined that the same have been caused through fire-arm. Similarly, he also examined, the injured Gul Taj, Mst. Sherinai and Bakht Mand and gave his reports about the nature and injuries on their persons. Gul Taj, injured-complainant, due to his serious condition was also referred by him to Peshawar for medical treatment on the same day, but he -unfortunately expired on his way to Peshawar.
On the same day, i.e. the date of occurrence, accused Sikandar Shah was arrested in injured condition from a Bhaitak while running from the spot d also a .7 m.m. rifle which was having the smell of fresh discharge alongwith 20 rounds was recovered from his possession. On 16-7-1990 accused Akbar Shah also surrendered himself to the police alongwith a single barrel shotgun with 7 cartridges of .12 bore. Sikandar Shah, accused-appellant, on 16-7-1990 and Akbar Shah, accused-appellant, on 17-7-1990 made confessional statements before the learned Illaqa Magistrate.
The Investigating Officer during spot , inspection, took into possession blood from the respective places of the deceased and injured and also recovered two empties from the place where Sikandar Shah, accused, was allegedly present at the time of occurrence. Similarly, from the place of Akbar Shah, accused, one empty of .12 bore was recovered. The Investigating Officer also took into possession the Bus bearing Registration No.2485/SW, in which the deceased and the injured were travelling at the time of occurrence. The Investigating Officer also prepared site plan and recorded statements of the witnesses.

The rifles recovered from the accused-appellants alongwith the empties recovered from the spot were sent to the Fire-arm Expert for opinion, who opined that the crime-empties were fired from the rifles in question. The blood-stained clothes alongwith the blood recovered from the spot were also sent for chemical analysis and the Investigating Officer received positive report in this regard.

At the trial, the prosecution produced 11 witnesses in support of its case. Noor Zada son of Wazir Zada (P.W.7) recorded his statement at the trial as an eye-witness of the occurrence. He in his statement charged the accused-appellants for making firing at the complainant-party, as according to him, he was also present in the same bus in which the complainant party was travelling at the time of occurrence. He also stated that some of the recoveries were also made by the police from the spot in his presence and he signed such recovery memos as a marginal witness.

The statements of the accused-appellants were also recorded under section 342, Cr.P.C. However, they refused to give statements on oath. The learned trial Judge after conclusion of the trial, awarded conviction and sentences to the appellants as detailed in the first paragraph of this judgment.

The points raised by the learned counsel for the appellants during the course of arguments can be summarised to the following effect:--

(1) As to whether the testimony of P.W.7 Noor Zada, whose name does not figure in the F.I.R. as an eye-witnesses of the occurrence, could safely be relied upon for awarding capital, punishment to the appellants.

(2) As to whether the learned trial Judge was right in placing reliance on the confessions of the two appellants only to the extent to their making firing at the deceased and injured victims, as against the established principle that confession should either be relied in toto or rejected as a whole.

(3) As to whether the appellants could be sentenced to death even if at the time of registration of the F.I.R. as well as submission of the challan the forums under P.A.T.A. Regulation were not vested with the powers to award death sentence to an accused person .under section 302, P.P.C.

We have considered the arguments of the 'learned counsel for the appellants in the light of the arguments advanced by the learned counsel for the opposite side, the evidence available on record and the judgments of the superior Courts cited at the Bar.
The prosecution through oral evidence has fully proved the fact that Gul Taj, complainant, soon after the occurrence had narrated the occurrence to the police in the Civil Hospital at Daggar in injured condition in presence of the doctor, who not only certified to the effect that the statement of Gul Taj was recorded in his presence, but also certified that at the time of recording his statement by the Investigating Officer, he was fully conscious and also capable to make a statement. Due to his serious condition, he was then referred to Peshawar for medical treatment but he breathed his last on the way. He in his statement has directly charged the accused-appellants by attributing specific roles of firing to both the accused. Motive for the commission of the offence was also disclosed.

P.W.7 Noor Zada was examined by the police on the same day of occurrence, wherein he disclosed similar facts of the occurrence as had been disclosed by Gul Taj, complainant, in his report. At the trial, P.W. Noor Zada supported the prosecution version on all important aspects of the case. As in his report the deceased Gal Taj had mentioned that besides him, the occurrence was also witnessed by other persons present at the spot and as there is nothing on record to suggest that P.W. Noor Zada was either closely related to the deceased or was known to him previously, therefore, the testimony of Noor Zada cannot be discarded merely on the grounds that his name has not been mentioned in the F.I.R. or there occurs some minor discrepancies in his statement, not so fatal to destroy the case of the prosecution. The argument in this regard is of no help to the defence for the reason that the statement of Noor Zada was recorded by the police on the same date of occurrence whereafter he was examined in the Court after sufficient long time and in absence of any material contradiction, the minor omission/contradiction in the statement of a witness is given less importance keeping in view the facts and circumstances of a case. The credibility of this witness has not been shakened by the defence on any particular aspect of the case. The medical as well as other circumstantial evidence in the case fully corroborates the version of the prosecution. Sikandar Shah, appellant, was arrested on the same day of occurrence while running from the spot alongwith the crime weapon. The next day of occurrence, the other accused Akbar Shah also surrendered to the police alongwith the weapon, of offence. The crime weapons alongwith the empties recovered. from the spot were sent to Fire-arm Expert for report. The report in this respect is positive. The driver of the bus has also been produced, who has admitted the occurrence to have been taken place in the manner alleged by the complainant as well as P.W. Noor Zada. The dying declaration of deceased Gul Taj and the statement of P.W. Noor Zada are, thus having every material support from the other circumstantial evidence in the case and the same being credible and worth reliance has rightly been relied upon by the learned trial Judge.

The accused-appellant Sikandar Shah was produced before the Illaqa Magistrate on 16-7-1990 where he recorded his statement under section 364, Cr.P.C. Similarly, Akbar Shah, accused-appellant, was produced on 17-7-1990 who made his confessional statement before the learned Magistrate. Sikandar Shah in his statement has admitted to have fired at the complainant party on 11-7-1990 and also admitted that he was apprehended on the same day from a Bhaitak where he had taken shelter in injured condition after the occurrence. The recovery of the crime weapon from him was also admitted. He, however, attributed the injuries on his person to Sarzamin, deceased (then injured) who was allegedly chasing him after the occurrence. Akbar Shah, accused-appellant, in his statement has also confessed his guilt. Sikandar Shah, accused, remained in the hospital for treatment for 5 days. According to him he only remained in the custody of the police for one day. Similarly Akbar Shah, accused, was arrested on 16-7-1990 and was produced before the Magistrate on the following day i.e. 17-7-1990 for recording his confessional statement. Both the accused-appellants have stated nothing about any undue pressure or torture from any side. The point of attributing firing to Sarzamin at Sikandar Shah, accused appellant, has been properly dealt with by the learned trial Judge as this part of the statement of Sikandar Shah, accused, was getting no support from other ocular or circumstantial evidence available in the case. The prosecution case does not rest only on the confessions of the accused-appellants, but it also rests on other oral and circumstantial evidence, which strongly contradicts the assertion of the accused with regard to the fact that the complainant-party had also fired at the accused-appellants. The learned trial Judge, has, therefore, committed no illegality in placing reliance on that part of the confessional statements which was fully consistent with the oral and circumstantial evidence in the case and did not place reliance on that part of the statements whichwas having no consistency with the evidence available on record. The authority reported in PLD 1958 Pesh. 147 can be cited with advantage to the point raised by the learned counsel for the appellants and the argument of the learned counsel for the appellants is without any force in this regard.
Regarding quantum of sentence that has been awarded to the appellant by the trial Court, the legality of the same has been challenged by the learned counsel for the appellants on the premises that the occurrence took place on 11-7-1990 on which date P.A.T.A. Regulation (Regulation I of 1975) was enforced in the area where the offence was committed and the trial for murder charge was to be held before a forum constituted under section 6 of the Regulation (ibid) and that on conviction, the Deputy Commissioner (exercising powers of the Provincial Government) within the contemplation of section 12 of the Regulation (ibid) could pass any sentence prescribed for the offence under the Pakistan Penal Code, 1860 except the sentence of death. Therefore, notwithstanding the trial being held after the abolition of Regulation, the trial Court has erred in awarding the death sentence to the appellant. Reference was also made to Article 12 of the Constitution of Islamic Republic of Pakistan.

Rebutting the above submissions, the learned Assistant Advocate General on the other hand submitted that the Regulation, referred to above, was declared repugnant and ultra vires to the Constitution by the august Supreme Court of Pakistan and on the date when the judgment impugned was passed the said Regulation was non-existent and hence the learned trial Judge was competent to award any sentence prescribed under the Pakistan Penal Code including death sentence. Reference was made to PLD 1989 SC 633 where sections 299 to section 338 of Pakistan Penal Code were held to be repugnant to the Injunctions of Islam and it was rule that the said finding of the august supreme Court will take effect from 23rd of March, 1990. However, as the Federal Government could not give effect to the referred judgment, a review petition was filed before the Supreme Court of Pakistan which was decided on 29-8-1990 as reported in PLD 1990 SC 1172 where the Supreme Court on accepting the review held that the rule enunciated in PLD 1989 SC 633 shall now take effect on the 12th day of Rabi-ul-Awal 1411 A.H. on which date the said provisions to the extent they have been declared and held to be repugnant to the Injunctions of Islam shall cease to have effect and if in case the required law was not enacted or enforced by the said date, the said provisions would nevertheless cease to have effect or 12th day of Rabi-ul-Awal. It was further held that in such state of vacuum when there would be -no statute law on the subject the common Islamic Law the Injunctions of Islam as contained in the Qur'an and Sunnah relating to offence of Qatl and Jurh (hurt) shall be deemed to be the law on the subject. It was, thus, contended that in view of the finding of the august Supreme Court of Pakistan irrespective of the date of offence when it was committed, as on the date when the judgment of conviction was recorded and as no corresponding amendment introduced through Qisas and Diyat Ordinance, which was later on enacted was extended to the Provincially Administered Tribal Area, the offence of Qatl-i-Amd would be punishable under the common law i.e. the law as ordained by Holy Qur'an and Sunnah.

We would here refer to Regulation I of 1975 where under section 6 the Tribunal was to be constituted. Section 12 of .the Regulation empowers the Deputy Commissioner to impose any sentence on a convict proven guilty except the sentence of death. Regulation I of 1975 has created a special forum of the trial for the area and the powers of the Tribunal constituted thereunder had fattered and limitation to the extent that it could not award the sentence of death. The offence, however, remained punishable under section 302 of the Pakistan Penal Code which includes death sentence. The language of Article 12 of the Constitution of Islamic Republic of Pakistan is reproduced as below for convenience:--

"12 (a).--- (1) No law shall authorise the punishment of a person--

(b) 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."

Our interpretation of the above sub-Article is that an offender cannot be inflicted greater penalty or a different penalty which was not prescribed when the offence was committed. However, the later part of this sub-Article would clarify the position that it relates to the punishment prescribed by law and does not deal with the power of the trial forums. Though the forum for the trial was changed by Regulation but the punishment for offence under section 302, P.P.C. remained death sentence because the Pakistan Penal Code undisputedly was extended to the Provincially Administered Tribal Area much before the promulgation o1 Regulation.

Thus, we are of the view that for the instant case and' cases of the nature the punishment for the offence remained as ,prescribed under the Pakistan Penal Code but due to restricted powers of the forums constituted under the Regulation, death sentence could not be awarded, however, after the Regulation ceased to have effect and after the regular Courts took cognizance of the offence under the Pakistan Penal Code, the fatter applicable to the P.A.T.A. forums disappeared and the Courts constituted under the Criminal Procedure Code were, thus, vested with powers to impose any sentence prescribed by law.

The learned counsel for the appellants has also failed to show any mitigating circumstance in favour of the appellants for awarding them lesser penalty as against the normal penalty of death, which has rightly be awarded to the appellants in the circumstances of the case.
For the aforesaid reasons, the appeal of Sikandar Shah and Akbar Shah, appellants, is hereby dismissed. The convictions recorded and the sentences imposed by the learned Sessions Judge, Bunnar at Daggar vide his judgment, dated 2-9-1997, are hereby maintained, on each count.

The Murder Reference made by the learned Sessions Judge under section 374, Cr.P.C. is, hereby answered in the affirmative and the death sentence awarded to the aforesaid appellants are hereby confirmed, on each count.

Q.M.H./M.A.K./94/P Appeal dismissed.

PCRLJ 2000 PESHAWAR HIGH COURT 2005 #

2000 P Cr. L J 2005

[Peshawar]

Before Abdur Rauf Khan Lughmani and Shahzad Akbar Khan, JJ

LAIS KHAN---Appellant

versus

THE STATE and another---Respondents

Criminal Appeal No.44 with Murder Reference No.5 of 1999, decided on 11th April _ 2000.

Penal Code (XLV of 1860).

----S. 302---Appreciation of evidence---Sentence---Reduction in---Broad daylight murder report of which was made with reasonable promptitude--Eye-witnesses had given a consistent account of occurrence and nothing favourable to accused could be divulged from them despite they were put to lengthy cross-examination---Tale of occurrence narrated in F.I.R. was subsequently affirmed by prosecution witness in his Court statement on all material points and his statement was further supported by testimony of other prosecution witness---Accused from the very beginning was attributed firing of kalashnikov and recovery of six empties from spot was strong corroborative circumstance---Medical evidence was also in line with ocular testimony---No serious enmity existed between the parties which could serve as a motivating factor to falsely involve accused in such-like offence and as to why real culprit should be spared to involve accused falsely as substitution was a rare phenomenon ---Abscondence of accused and his remaining fugitive .for about eight months was also a corroborative circumstance having its strong tendency to articulate in support of prosecution case,---Statement made by defence witness proved to be totally destitute of quality of attracting confidence---Prosecution having successfully proved its case against accused, conviction of accused was upheld, but motive part of prosecution being not transparent, same could conveniently be treated as an extenuating ,feature---Death sentence awarded to accused by Trial Court was converted into imprisonment for life, in circumstances.

Zafar Abbas. Zaidi and Pir Liaqat Ali Shah for Appellant.

Syed Saeed Hassan Sherazi, Asstt. A.-G. for the State.

Dost Muhammad Khan for the Complainant.

Date of hearing: 23rd November, 1999.

JUDGMENT

SHAHZAD AKBAR KHAN, J.--- The appellant, Lais Khan, was convicted by the learned Additional Sessions Judge, Bannu for the murder of Haji Ashraf Ali and was awarded death sentence vide judgment, dated 5-8-1999 under section 302(b), P.P.C. The appellant has called in question his conviction and sentence through the instant appeal and the reference under section 374, Cr.P.C. is also before us. Both the appeal and reference shall be disposed of by this single judgment, as both have arisen out of the same judgment of the learned trial Judge.

According to the F.I.R. lodged by Haji Farzand Ali (P.W.4), be brought the dead body of his brother Ashraf Ali in a Datsun and lodged a report in Police Station Basia Khel, vide F.I.R. No.259, dated 2-11-1996. to the effect that he alongwith his brothers Ashraf Ali and Ajmair Ali were going to attend "Painda" (Suhbat/Meal) to village Bazeeda Karim Khan in a Datsun driven by Moeenullah (D.W.). On reaching the spot at about 16-30 hours when on the road side they saw Lais Khan (appellant) armed with a kalashnikov and Hamza Ali armed with a' .12 D.B. shotgun. Hamza Ali signalled the Datsun to stop which was accordingly stopped and Harnza Ali told the appellant to kill Ashraf Ali who was standing on the "Paidan" of the vehicle. On such command, the appellant fired at Ashraf Ali with which he was hit and fell down and died on the spot. Motive for the offence was disclosed that about a month back:, Taseer Khan, cousin of the complainant and also of the deceased had given beatings to the appellant and in order to settle the score, he had killed the deceased. The occurrence was said to be witnessed by Ajmair Ali (P.W.5) as well.
The prosecution in its endeavour to prove the case against the appellant produced nine witnesses, of whom, P.W.1 is Badshah Khan, who identified the .dead body of the deceased before the police as well as the doctor at the time of post-mortem examination. P.W.2 is Muhammad Ameen, F.C. who was entrusted with the search warrant under section 204, Cr.P.C. against the appellant and Hamza Ali accused who returned the same with the report that the accused were not available in their village and the surrounding area and were said to have gone to the tribal territory. P.W.3 is Muhammad Iqbal Khan, Sub-Inspector, who arrested the appellant on 28-7-1997 and also submitted supplementary challan against him. P.W.4 is Farzand Ali Khan, the lodger of the F. I.R. who in his statement before the Court affirmed the contents of the F.1.R. and has given a detailed eyewitness account of the occurrence.,, P.W.5 is Ajmair Al( Khan who is also an eye-witness to the occurrence who has also corroborated the complainant on all the material points. P.W.7 (who should have been as P.W.6j is Doctor Riaz Ahmad; Medical Officer, District Headquarters Hospital; Banttu, who conducted the post-mortem examination on the dead body of the deceased on 3-11-1996 and found the following injuries:-- ,.

(1) An entry wound of 1/4" diameter on back of left side of chest just above medial angle of left scapula.

(2) Exit wound of about 1 " x 1 /2" size just above medial and of right clavical in supra clavicular depression.

(3) Two inches graze in middle of the back of right side of chest. Direction is from left back to right front, level horizontal.

Internal injuries:

In throat, except particardium and heart, all other organs were injured. In blood vessels aorta, right common carotid aortry and big veins injured. In f abdomen esophagus. was injured. Stomach contained semi-fluid. In muscles, bones and joints, chest muscles injured.

In his opinion the deceased after receiving fire-arm injuries died from profuse bleeding. Probable time elapsed between injuries and death was 5-10 minutes, while between death and post-mortem 12 to 14 hours:

P.W.8 is Muhammad Hayat Khan, A,S.-I. Police Station Saddar, Bannu who recorded the F.I.R. (Exh.P.A.), prepared injury sheet of the deceased (Exh.P.M./1) and -inquest report Exh.P.M./2. He despatched the dead body to the hospital for post-mortem examination. He then went to the spot alongwith the complainant and prepared the site plan (Exh.P.B.). From the venue of occurrence, he -took into possession blood with the help of cotton, sealed it into. a parcel vide memo. (Exh.P.C./1). He also took into possession six empties (P.1) vide memo. Exh.P.D. He recorded the statements of P.Ws. under section 161, Cr.P.C. and then handed over the investigation to. the S.H.O. P.W.9 is Mir Alain Khan, S.H.O. who while partly investigating the case, took into possession a shirt (P.2), Banyan (P.3) having cut marks through memo. (Exh.P.E.) produced by F.C. Nawaz brought from the hospital. He exhibited the chemical report (Exh.P.Z.) and submitted complete challan under section 512, Cr.P.C. and supplementary challan against Hamza Ali accused. P;W.10 is Rabnawaz who had escorted the dead body of the deceased to the hospital and after the post-mortem examination received to shirt with Banyan and post-mortem documents from the doctor which were handed over to the Investigating Officer on the spot.
The accused was examined under section 342, Cr.P.C. who plainly denied the commission of the offence and also existence of the motive and stated that if there was any such dispute with Taseer, the same had no nexus with the complainant. He, however, admitted his relationship with co-accused Hamza Ali as the brother of his father. Regarding his abscondence, he explained that he never absconded and was present in his own village throughout, but he was making efforts to persuade the complainant to withdraw the charge as it was baseless and when he became sure that the complainant party was reluctant to do so, then he voluntarily surrendered. He termed the P.Ws. as highly interested being the brothers of the deceased. He described his involvement in the case as a political vendetta, as he is closely related to Akram Khan Durrani, an M.P.A. of the area, while the complainant party is the strong supporter of M.N.A. Malik Nasir Khan. He however, did not opt to examine himself on oath. In defence, he asked for the production of Moeenullah, the driver of the vehicle who was produced as D.W.1.
The aggregate outcome of the above factual summary is that the prosecution has built up its case on ocular testimony of P.W. Farzand Ali and Ajmair Ali, medical evidence, recoveries in the form of empties of 7.62 bore, blood from the spot of the deceased which. was subsequently, declared as of human origin by the laboratory report, abscondence and motive.
The learned counsel for the appellant argued that the prosecution has not succeeded in successfully proving the guilt of the appellant and the impugned judgment of the learned trial, Court is the outcome of misreading and non-reading of the evidence and, as such, the conclusion about of the guilt of the appellant drawn by the trial Court was whimsical and thus, incorrect.. He stated that the presence of the eye-witnesses is highly doubtful, as there was no reason for them to have accompanied the deceased. He also stated that nobody from the passengers present in the Datsun appeared as a witness to the occurrence. He further stated that P.W.1 Badshah Khan had only appeared as, witness of identification of the dead body and he did not say anything about the Painda (Suhbat/Meal) allegedly arranged by him. Thus, the purpose of the visit of P.Ws.4 and 5 is 'not visible from the statement of P.W.I. He further contended that if the deceased was standing on Paidan of the vehicle and in such a position he was fired, then there should have been some bullet marks on the vehicle which were not found. His next argument. was that there `vas a maize crop near the scene of occurrence and the possibility of identification of the assailants was impossible, as the assailants could achieve their purpose of killing the deceased even by firing from the maize crop and there was no need for the appellant to have exposed his identity. While folding his argument he argued that there was no motive for the offence as the motive alleged by the prosecution had no nexus with the deceased and it was directly linked with Taseer. Thus, the learned counsel argued that the conviction recorded by the trial Court is not based on. correct appreciation of evidence. He,, however, as a last limb of his submissions contended that even if the case of the prosecution is admitted as proved, then the punishment of death, in view of the circumstances of this case, is wholly unwarranted.
The learned counsel for the complainant and State have vehemently defended the impugned judgment and the ensuing conviction and sentence on the grounds mentioned in the judgment itself .and have stated that the judgment of the trial Court is well-reasoned and no interference would be justified. .
We have heard the rival arguments of both sides and carefully gone through the record. None of the submission made by the learned counsel for the appellant has any force. This is a broad daylight crime, which was authored at 16-30 hours and the report was made at 17-15 hours which is with reasonable promptitude, as the distance between the scene of occurrence and the police station is 4/5 kilometres. The occurrence has been witnessed by P.Ws: Farzand Ali and Ajmair Ali. The appellant was, from the very first day attributed a kalashnikov with which he fired at the deceased which resulted into his death. Six empties of 7.62 bore giving fresh smell of discharge were recovered from point "B" in the site plan by the Investigating Officer which is located close to point "5" where the appellant was standing and had fired at the deceased. The deceased and his two brothers were going, to attend the Suhbat arranged by Ba4hah Khan (P.W.1) in honour of Farzand Ali who had come from Dubai and this is a common tradition of the area. It is also a common practice that the close relatives of the chief guest are also invited for the occasion and for that matter, the real three brothers were going to the house of Badshah Khan who is the sister's son of the complainant. Therefore, it cannot be a matter of surprise or novalty as to why the P.Ws. Farzand Ali and Ajmair Ali were accompanying the deceased. They are the real eye-witnesses and have given a consistent account of the occurrence. They had been put .to a lengthy cross-examination, but nothing favourable to the appellant could be divulged from them. The tale of the occurrence narrated in the F.I.R. was subsequently affirmed by P.W.4 in his Court statement on all material points and his. testimony is further supported by the testimony of P.W.5 Ajmair Ali Khan. From -day one, the appellant was attributed firing of kalashnikov and the recovery of six empties from the spot of the same caliber shown in the site plan is a strong corroborative circumstance. The medical evidence is also in line with the ocular testimony, as there is an entry wound of 1/4" diameter on back of left side of chest just above medial angle- of left scapula. - There is also an exit wound of about 1" x 1/2" size just above medial and of right clavical in supra clavicular depression. There are 2" graze wounds in middle of the back of right side of chest. The death of the deceased, according to. the medical report was within 5 to 10 minutes which is also in congruity to the ocular testimony. The deceased was standing on the Paidan of the Datsun and obviously Paidan is an outer portion of the vehicle; therefore, firing on the person standing on the Paidan would call for a very little probability of the vehicle being hit. Therefore, the absence of the bullet marks on the body of the vehicle cannot cause any damage to the prosecution version and, as such, the contention of the learned counsel for the appellant is destitude of any force. Moreover, a bare look on the site plan would show that the vehicle of the deceased was stopped on the road side by Hatnza Ali accused (since dead) and from point "5", the appellant had opened firing on the deceased. This point is located on the back of the water channel which is a sufficient distance from the maize crop shown in the site plan. This point is clearly visible from points "2" and "3", where the presence of P.Ws. Farzand Ali and Ajmair Ali is shown. Thus, a person firing from point "5" is clearly within the visual range from points "2" and "3". It is also a noteworthy feature of the case that the empties were recovered from point "B" which is closely located to point "5". Thus, it is evident that the appellant had fired from point "5" where there is no maize crop. In the F.I.R., which is obviously prior to the drawing of the site plan, the complainant (P.W.4) had unequivocally stated that accused Lais Khan appeared from right direction from the Sheesham trees. Point "5." is also located within the Sheesham trees, three on one side and one on the other. Moreover, the contention of the learned counsel for the appellant that no independent person from the passengers of the vehicle has been cited as a witness is also of no significance, as in our social set--up no independent person dares to come forward to depose against a delinquent of the nature of murder due to the insecurity and the attended danger of incurring the wrath of the accused. In the instant case, there exists no such serious enmity which could serve accused motivating factor to falsely involve the appellant in such-like offence and why the real culprit should be spared to involve the appellant falsely, as the substitution is rare phenomenon. Another important fact of the case is that the accused retrained absconder after the commission of the offence, i.e. 2-11-1996 to 28-7-1997 and the explanation given by him in his I statement under section 342, Cr.P.C. is the least convincing to attract the confidence of a judicial mind. Thus, the abscondence of the appellant is also a corroborative circumstance having its strong tendency to articulate in support of the prosecution case.
Now adverting to the statement of D.W.1, we may observe-that his testimony is totally destitute of quality of attracting our confidence, for the reasons, firstly; that his statement was recorded under section 161, Cr.P.C. wherein he had categorically admitted the presence of Haji Farzand Ali and Ajmair Ali P.Ws. at the time of occurrence and had also admitted the fact that his vehicle was stopped by two persons, of whom one was equipped with .12 bore D.B. shotgun and the other with kalashnikov and under the command of co-accused, the appellant fired at the deceased with the only difference to the version of the complainant that this D.W. had not disclosed the names of the assailants.
In his Court statement, he has taken a totally different stance and has also excluded the presence of P.Ws.4 and 5 at the time of occurrence. It is noteworthy that this witness did not respond to the process of the trial Court and he avoided appearing notwithstanding the fact that warrants of arrest were issued against him and ultimately this witness appears to have been abandoned by the prosecution, as is evident from the order-sheet No. 15, dated 3-3-1999. This fact has been admitted by the witness in his cross-examination that the Karachi Police wanted to serve summon on him so many times but he used to avoid/run away from them: It clearly shows that this witness was in the clutches of the accused party and he avoided appearance in the Court as a prosecution witness and readily appeared before the Court when so wished by the accused so as to record his statement as D.W. This witness has deposed that after the occurrence he put the dead body in the Datsun and took him to the village in order to inform his brothers, whereafter they had gone to the police station. The report of this incident was made within forty-five minutes, which could not have been possible if after the occurrence the deceased was taken to his village and his brothers were informed and. thereafter they had come to the police station. After recording his statement under section 161, Cr.P.C. no step was taken by him, or for that matter the accused party, for disowning his previous statement. Tainted with such-like inherent infirmities, his statement cannot earn any confidence and, as such, we do not consider him as a truthful witness. Moreover, his testimony cannot be of any efficacy so as to outweigh the evidence of the prosecution as detail fully given above.
From the above discussion, we are clear in our mind that the prosecution has successfully proved its case against the appellant and resultantly this appeal is dismissed with regard to the conviction of the appellant. However, so far as the sentence is concerned, we feel that the motive part of the prosecution case is not transparent which can be conveniently treated as an extenuating feature. Thus, we convert the sentence of death into imprisonment for life with the consequence that the reference under section 374, Cr.P.C. is not confirmed. Besides, the appellant shall pay an amount of Rs.50,000 as compensation to the legal heirs of the deceased as required under section 544-A, Cr.P.C., failing which he shall further undergo one year's R.I.

H.B.T./118/P Order accordingly.

PCRLJ 2000 PESHAWAR HIGH COURT 2016 #

2000 P Cr. L J 2016

[Peshawar]

Before Mian Shakirullah Jan and Talat Qayum Qureshi, JJ

KHAWAJ MUHAMMAD ---Appellant

versus

THE STATE---Respondent

Criminal Appeals Nos.71 and 72 of 1999, decided on 6th April, 2000, West Pakistan Arms Ordinance (XX of 1965)---

----Ss. 13 & 16---Appreciation of evidence---Accused from whose possession kalashnikov was allegedly recovered was a valid licensee thereof and police had manipulated case by falsely implicating accused and co-accused--'Recovery of kalashnikov and other arms ammunition from accused while they were travelling on vehicle was not witnessed by any other independent public witness despite other passengers were present in that vehicle, but none had been cited as a witness---Prosecution version was not supported by star witness of the case who was S.H.O. of police station and he having died, could not be produced---Where a person could produce a valid licence for arms and ammunitions a lenient view was to be taken---Conviction and sentence awarded to accused by Trial Court were set aside with direction to the Authorities to return kalashnikov to the accused who was its licensee/owner.

Syed Akbar Ali Shah v. The State 1995 PCr.LJ 1317; Ghulam Sarwar v. The State 1997 PCr.LJ 1283; Hassan Khan v. The State PLD 1967 Pesh. 103; The State v. Noor Haider PLD 1967 Pesh. 182; Emperor v. Lalman Tharu AIR 1937 Pat. 347 and Avidi Veerasami v. Crown AIR 1940 Mad. 257 ref.

Mehdi Zaman Khan for Appellant.

Muhammad Ayub Khan, Asstt. A.-G. for the State.

Date of hearing: 30th March, 2000.

JUDGMENT

MIAN SHAKIRULLAH JAN, J.--- The two appeals, one filed by Khawaj Muhammad (Criminal Appeal No.71 of 1999) and the other filed by Babu Khan (Criminal Appeal No.72 of 1999), against their conviction under section 16 of the Arms Ordinance, 1965 and 13 of the Arms Ordinance relating to the recovery of arms ammunition i.e. kalashnikov bearing No.07945938 and certain rounds of 7.62 bore -with the allegations of delivering the same by Khawaj Muhammad and recovered from Babu Khan and which kalashnikov is licensed in the name of the former.

Initially a case was registered under section 13, Arms Ordinance vide F.I.R. No.213, dated 10-10-1997, Police Station Battagram against Babu Khan on the assertion that while he was going in a Datsun the police recovered the abovementioned arms ammunition from his possession to which he could not produce a valid licence and was booked accordingly. On production of the licence for the kalashnikov by Khawaj Muhammad another case vide F.I.R. No.224, dated 8-11-1997 under section 16 of the Arms Ordinance was registered against him.
At the trial of appellant Babu Khan three witnesses were examined by the prosecution. P.W.1 Gohar Rehman and P.W.3 Zahid, F.C. who both are the marginal witnesses to the recovery memo. vide which the kalashnikov was taken into possession by Abdullah Khan, Inspector. Ashiq Hussain was examined as P. W .2 who-on the receipt of the Murasila has registered the case. Since Abdullah Khan, Inspector was died and this witness also stated that he being well-conversant with the handwriting and signatures of Abdullah Khan and, thus, testified that the Murasila, the recovery memo. were in his handwriting and also bore his signatures.
On' the close of the prosecution case the accused was examined under section 342, Cr.P.C. wherein he has stated that the recovery of the arms ammunition has been effected from Khawaj Muhammad and not from him.
Similarly Khawaj Muhammad was also put to trial under section 16, Arms Ordinance. The prosecution examined two witnesses i.e. Muhammad Bashir as P.W.1 and Gulzar Khan as P.W.2. The former has deposed in respect of the production of the licensed rifle by Khawaj Muhammad appellant and its taking into possession by the Investigating Officer Gulzar Khan has deposed to the effect that he was well-conversant with the handwriting and signatures of Abdullah Khan, S.H.O. since dead, who drafted the Murasila, prepared the recovery memo. and signed the same.
Khawaj Muhammad was also examined under section 342, Cr.P.C. He has produced no evidence in defence except the certified copy of application Exh.P.1. which he has written to the Sessions Judge for the return of the kalashnikov and the order of Sessions Judge, Exh.P.2, dated 6-11-1997 for the return of the same to the applicant. He in his statement has also stated the same facts as narrated by Babu Khan accused by stating that it was he (Khawaj Muhammad) from whose possession the kalashnikov was recovered and he was a valid licensee and the police have manipulated the case by falsely implicating him and Babu Khan.
The learned trial Court convicted and sentenced Khawaj Muhammad appellant -to one year's R.I. under section 16, Arms Ordinance and was placed under probation on the condition that he would furnish bail bonds in the sum of Rs.50,000 with the sureties. Babu Khan appellant was also convicted and sentenced to three years' R.I. with a fine of Rs.1,000 or in default of fine to undergo three months' R.I. He was also placed under probation. It is against these judgments and orders against which the present two appeals, as mentioned in para. No.1, have been filed.
The application Exh.P.1 indicates that-this was submitted in the Court on 16-10-1997 stating therein that despite the production of the licence copy before the police with regard to the kalashnikov, but neither the same is returned to him nor a case under section 16, Arms Ordinance is registered against him, and it is after the issuance of notice to the State by the Court on 16-10-1997 when the case under section 16, Arms Ordinance was registered on 8-11-1997, after passing of the order by the Court on 6-11-1997 for return of the kalashnikov to the appellant, and this order is Exh.P.D. The observation of the learned Court in this respect is worth perusal and is as under:--

"I am told that licence for the kalashnikov in question was delivered to the S.H.O., yet he is adamant in keeping it out of consideration for some ulterior motives. I feel that public functionary particularly police is still to be trained with the concept of public service and unless they are shaken out of their deep slumber by some stern measures, the rule of law in this country will remain always a dream to be cherished for. Realising this situation I feel that it would be appropriate to issue an order for the immediate return of the kalashnikov to the owner with an explanation from the S.H.O. concerned as to why he failed to proceed in accordance with the legal provisions after he had received the licence copy from the owner."

The story. as set up by the prosecution is not denied in toto by the accused-appellants i.e. their travelling in the Datson and the recovery of kalashnikov but with only difference i.e. the prosecution alleges the recovery from Babu Khan while the two appellants alleged it from Khawaj Muhammad. It is also in the statement of the witnesses that there were other passengers present in the Datson at the time of recovery and also that there was a religious centre where persons from the public were also present but none has been cited as a witness. The prosecution version is not having the support of the star-witness in the case i.e. Abdullah Khan, S.H.O. being dead and could not have been produced. It is not a case like the other recovery case where the question arises as to wherefrom- such a valuable article has been manoeuvred by the police and to plant it upon the accused and which factor goes a long way in favour of the prosecution and against the accused even in absence of any public witness but here in this case it is quite different as in this case the only question involves is from whose possession the arms were recovered with the possibility of excavating a pretext to have such arms ammunition by the police and particularly in the absence of any deposition by the Investigating Officer himself in order to ascertain from him the non-citing of the public witness and about the very assertion of Khawaja Muhammad appellant produced the licence copy but the same was not taken; from him by the Investigating Officer: Such-like doubts in the prosecution story also further strengthened by the observation of the learned trial Court vide Exh.D.1 having the knowledge of the real facts at the initial stage when the case was before him for the return of kalashnikov.
Even otherwise in case where for the arms ammunition a person can produce a valid licence then a lenient view is taken. In case Syed Akbar Ali Shah v. The State 1995 PCr.LJ 1317 it was observed asunder:--

"Documentary evidence available on record showed that the fire-arm and the ammunition belonged to the applicant who had claimed those said articles, therefore, could not be forfeited in favour of Government and the Trial Court's order to that effect was consequently set aside with the direction to District Magistrate to hand over the same to the applicant after proper identification who was their licensee."

In case Ghulam Sarwar v. The State 1997 PCr.LJ 1283 it was held as under:

"Gun recovered at the instance of accused in the murder case and confiscated in favour of the State, had been claimed by the accused's father (petitioner)---Petitioner being the lawful owner and the licensee of the gun was entitled to have the gun restored to him on furnishing the necessary documents---Revision petition was accepted accordingly.".

Similarly in case Hassan Khan v. The State PLD 1967 Pesh. 103 it was held:--

"sustaining conviction under section accused must be proved to have voluntarily delivered aims or allowed its use by another."

Even if the prosecution story is held to be true even then on the production of licence by the licensee in respect of the arms then no offence whatever under the Arms Ordinance has been constituted, in this respect reliance can be placed on case The State v. Noor Haider PLD 1967 Pesh. 182 and in which case it was held as under:--

"Since the respondent is the nephew and servant of Saifur licensee and as he was carrying the licensed shotgun of his master at his bidding to his village, no offence whatever under the Arms Ordinance has been constituted. It will be profitable hereto refer to the decisions in (1) Emperor x Lalman Tharu AIR 1937 Pat. 347; (2) In re: Avidi Veerasami v. Crown AIR 1940 Mad. 257."

Iii the first noted case, the Division Bench comprising of Agarwala and Warma, JJ. observed:--

"In the case of a licensed weapon a person who merely assists the owner of the weapon by carrying it for him or taking it somewhere for him may be said to assist his master in doing a perfectly legal act, for the master being the licensee is entitled to have the gun in his possession."

In the latter case, . it was held-- .

"A servant of a gun licensee merely carrying the gun of his master to the house of the master under his orders is not guilty under section 19(f). "

Consequently, we accept both these appeals, set aside the orders of conviction of the learned trial Court and order that the kalashnikav be I returned to its licensee/owner Khawaja Muhammad.

H.B.T./108/P Appeals accepted.

PCRLJ 2000 PESHAWAR HIGH COURT 2025 #

2000 P Cr. L J 2025

[Peshawar]

Before Abdur Rauf Khan Lughmani and Shahzad Akbar Khan, JJ

NAZAR KHAN---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.65 and Criminal Revision No. 10 of 1996, decided on 3rd May, 2000.

Penal Code (XLV of 1860)---

----S. 302/34---Appreciation of evidence---Occurrence had not taken place in the manner as had been alleged by prosecution witnesses and presence and witnessing of occurrence by said eye-witnesses was highly doubtful-Accused was shown equipped with .12 bore shot gun and was alleged to have fired with said shot gun, but neither any empty of .12 bore was recovered from scene of occurrence nor any pellet could be recovered from the wall which bore marks of projectile and instead only .7 m.m. empties were recovered from the spot and that spot had been attributed to absconding co-accused---Crime was, thus, committed by a man armed with a rifle and no shot gun had been used in the occurrence---Discrepancy was found in statements of complainant and prosecution witness with regard to recording of statement of occurrence with police---Prosecution witness had stated that his statement was recorded at police station there and then whereas complainant had stated that prosecution witness did not narrate occurrence at police station, but he had accompanied dead body of deceased to police station and later on he was examined on the spot---Contradiction was found between complainant and other prosecution witness---Complainant party had admitted previous enmity between them and accused party---Eye-witnesses being closely related to deceased fell within domain of "interested witnesses" and rule of prudence and caution demanded that independent corroboration should have been sought to the prosecution case, but no independent corroboration in form of circumstantial evidence was brought in support of ocular testimony of said "interested witnesses"---Circumstantial evidence in form of site plan and recoveries were speaking against prosecution version--Conviction of accused by Trial Court being result of erroneous interpretation of facts and circumstances of case, was not warranted by law and was set aside in circumstances.

Syed Zafar Abbas Zaidi for Appellant. Muhammad Khan Khakwani for the State. Dost Muhammad Khan for the Complainant.

Dates of hearing: 22nd February, 2000.

JUDGMENT .

SHAHZAD AKBAR KHAN, J.--- Through the instant appeal, the convict/appellant, Nazar Khan, has called in question the judgment and order, dated 3-6-1996 of the Additional Sessions Judge, Lakki, vide which he was convicted under section 302/34, P.P.C. and was sentenced to imprisonment for life and fine of Rs.30,000, or in default of payment thereof to further undergo simple imprisonment for two years. In case of realization -of the fine, 2/3rd of it was to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. was also extended to him. The complainant is also aggrieved of the said order of the learned trial Judge and by assailing the same through Criminal Revision No. 10 of 1996 has prayed for enhancement of the convictions and sentence of the appellant to that of the normal penalty of death and adequate compensation. Since both the matters are the outcome of one and the same order of the learned trial Judge, we, therefore, propose to dispose it of by this single judgment.

Briefly, the prosecution story narrated in the F.I.R. by complainant Miram Shah (P.W.11) is that on 20-1-1992 at Peshin Vela deceased Hassan Shah had gone to Mandi of Ali Muhammad where he (complainant) his nephew Dolt Muhammad (P.W.12) and few other persons were sitting in the grain Mandi. After some time, the complainant alongwith Hassan Shah and Dost Muhammad and his nephew started to the house of Sher Bahadur, brother-in-law of the deceased Hassan Shah, to inquire about the ailing health of sister of the deceased. On their reaching to the Mandi of Karim Shah, suddenly absconding accused Bahadur Khan and the appellant, sons of Gul Akbar, equipped with Topaks emerged from the shrubs and started firing on them with which Hassan. Shah was hit and fell on the ground. The complainant alongwith P.W. Dost Muhammad ran towards the Mandi of Ali Muhammad to rescue themselves as they were empty-handed. The accused after commission of the crime decamped towards the hill. The motive for the occurrence disclosed by the complainant is the previous blood feud. The matter was reported by him on the same day at 4-30 a.m. in the police station and resultantly the case vide F.I.R. No.8 was registered against the appellant and the absconding accused Batar Khan.
After completion of the investigation, complete challan under section 512, Cr.P.C. against both the accused was submitted by the Investigating Officer. However, subsequently, on the arrest of the appellant on 29-12-1993, supplementary challan was put in Court against him on 3-1-1994.
During the trial of the case, the prosecution. examined as many as 12 witnesses, of whom P.W.1. Muhammad Aslam Khan executed warrants under section 204, Cr.P.C. against the appellant and proclamation notice under section 87, Cr.P.C. P.W.2 is the identifier of the dea4 body at the time of post-mortem examination. P.W.3 Saifullah Khan,, Medical Officer, Civil Hospital, Lakki who had conducted post-mortem examination on the dead body of the deceased Hassan Shah and found the following injuries:-

External:

(1) One entrance wound of fire-arm at posterior surface and in middle

part of left forearm size 1/4" x 1/4" skin and muscle deep.

(2) , One exit wound of fire-arm at anterior surface and in middle part of

left forearm size 4" x 2".

(3) One entrance wound of fire-arm at left lateral side of chest 5" below

the arm-pit sizes 1/4" x 1/4" x skin muscle and cavity deep.

(4) One exit wound of fire-arm at right lateral side of chest below 2"

the arm-pit sizes 1/2" x 1/2".

(5) One re-entrance wound of fire-arm at medial surface of right arm 2"

below the arm-pit sizes 1/2" x 1/2" x skin and muscle deep.

(6) One exit wound of fire-arm at lateral surface of right arm -6" below

the shoulder joint size 1" x 1/2".

(7) One entrance wound of fire-arm at back of chest on right side at the level of lower angle of right scapula size 1/4" x 1/4" x skin muscles and cavity deep.

(8) One exit wound of fire-arm at front of chest on right thigh just below the medial end of clavicle bone size 1 " x 1 ".

(9) One entrance wound of fire-arm at posterior surface of right forearm 3" above the wrist joint size 1" x 1/2" x skin and muscle deep.

(10) Fracture bone can be seen through the wounds.

(10-A) One exit wound of fire-arm at anterior surface of right forearm 3" above the wrist joint size 1" x 1/2".

Internal:

Thorasic walls, ribs and cartilages injured. Right and left lungs pericordium blood vessels and heart injured.

Stomach and its contents:

Healthy. Digested food in small quantity present.

Right ulna and tedious bone ... fractured.

Left ulna and redious bone ... fractured.

In opinion of the doctor, the death was caused as a result of injury to the vital organs, both lungs and heart causing asphyxia and severe haemorrhage shock and death. Probable time between injury and death was opined as about five minuets while between death and post-mortem examination two to three hours. Six metallic pieces were recovered from wounds Nos.6 and 10.

P.W.4 is Asmatullah Khan, S.H.O. of Police Station Ghazni Khel who arrested the appellant on the date mentioned above as he surrendered before the S.H.O. voluntarily and, as such, complete challan was put against him on 3-1-1994. P.W.5 is the marginal witness to the recovery memo. Exh.P.W.5/1 vide which the phial containing metallic pieces were taken into possession by the Investigating Officer sent by the doctor. P.W.6 is Patwari Halqa who on the direction of the Investigating Officer prepared the extract from the record of rights as Exh.P.W.6/1 and Aks Kishtwar as Exh.P.W.6/2 from the Revenue Record. P.W.7 is Shahabuddin Khan, S.-I. (retired) who being posted as S.H.O., Police Station Pezu had submitted the complete challan against the accused under section 512, Cr.P.C. P.W.8 is Sadullah Khan, A.S.-I. who was posted as I.H.C. in Police Station Pezu during the relevant days and is a marginal witness to the recovery memo. Exh.P.W.8/1 which is related to the blood-stained sand of the venue of occurrence. He is also a marginal witness to Exh.P.W.8/2 vide which the Investigating Officer took into possession three empties of .7 m.m. Exh.P.1, and two live cartridges of the same bore Exh.P.2. Vide Exh.P.W.8/3 the Investigating Officer took into possession a blood-stained shirt (P.3), Banyan (P.4) and Chhuri (P.5) belonging to the deceased, to the memo. whereof this P.W. is the marginal witness. A sealed phial containing metallic pieces Exh.P.6 sent by the doctor and the clothes were sealed into parcel in his presence. He admitted his signatures on all the recovery memos. P.W.9 is Rastan Ali Shah, F.C. No.394. He escorted the dead body of the deceased from police station to the hospital. P.W.10 is Gul Sher Khan, A. S.-1. who registered the case on the report of Mirarri Shah complainant. This witness prepared the injury sheet and inquest report of the deceased as EXh.P.M./2 and Exh.P.M./3 respectively. He drew the site plan (Exh.P.B.). He had also taken into possession the blood-stained earth, three empties of 7 m.m. and two live cartridges through the recovery memo. mentioned above. He also took into possession the abovementioned attire of the deceased. P.W.11 is Miram Shah who is the eye-witness of the occurrence. In the Court statement he deposed more or less in terms of the F.I.R. According to this witness, both the accused were armed with Topaks. The appellant was attributed the first fire shot which hit the deceased and the second shot was fired by the absconding accused Batar Khan which also hit the deceased. The deceased had statedly run ahead towards the grain market of Karim Khan and, thereafter, both the accused had. again fired at the deceased and this time, the deceased was hit by the fire shot of absconding accused; but the witness was not sure whether the second fire shot of the appellant could hit him or not. In the Court statement, the motive was detailed that one Qasim Khan who was the Tarboor of the father of the accused was murdered and the brother of the accused, namely, Ali Akbar, was charged for the murder. The other eyewitness is P.W.12 Dost Muhammad who also supported the complainant in the trial Court. This witness stated that when they reached the spot, the appellant Nazar Khan, and the absconding accused Batar Khan appeared from the bushes and they were armed with rifles. However, in the same breath he stated that Nazar Khan accused fired at them with his .12 bore shotgun with which Hassan Shah deceased was hit and thereafter Batar Khan also fired at Hassan Shah effectively and he alongwith the complainant ran back towards the grain market of Ali Muhammad, while Hassan Shah after receiving injuries ran towards the grain market of Karim Khan. He further stated that again both the accused fired at the deceased out of which ~ the deceased received injuries from the fire shots of accused Batar Khan and the deceased fell down on the ground and the accused decamped towards the hill side. On the close of the prosecution evidence, the accused/appellant was examined under section 342, Cr.P.C. in which he denied the commission of the offence and also denied the relations with Qasim Khan who is related with the motive for the occurrence. About the abscondence, he stated that he had gone to Karachi for labour and on his return he himself submitted for the arrest.
The learned counsel appearing on behalf of the appellant has assailed the impugned conviction and sentence of the appellant and submitted that the prosecution has not been able to prove its case against the appellant and for that matter the impugned judgment of the learned trial Court is erroneous and is the outcome of misreading and mis appreciation of the evidence. He argued that the tale advanced by the eye-witnesses is totally unnatural and is destitute of the quantity of attracting confidence. He critically referred to the site plan in which the grain Mandi Karim Khan is shown on the eastern side of points 1, 2, 3, 5 and 6. Point 2 is the place where the complainant claims his presence and point No.3 is the place given to P. W. Dost Muhammad whereas on point No. l the deceased was shown at the first instance. On this point, he was shown fired at by the appellant from point No.5 and by the absconding accused from point No.4 and significantly a .7 m.m. rifle was attributed to the absconding accused, whereas the appellant was shown on point No.5 armed with a .12 bore shotgun. The learned counsel stated that after receiving the injuries at the first instance, the deceased was shown running to the Mandi of Karim Khan but on point No.6 he fell and died there. The distance between point No. l and point No.6 is 37 paces, which means that after receiving the first injury he walked for 37 paces but no trail of blood was found in-between the two points. He further submitted that three empties of .7 m.m. attributed to the absconding accused were found on point "A", close to point No.4 where the absconding accused was shown firing at the deceased. He argued with vehemence that no empty of .12 bore was recovered from the place of the appellant notwithstanding the fact that two fire shots have been attributed to the appellant. He further, argued that on the wall of grain Mandi of Karim Khan, the Investigating Officer had shown marks of bullets and pellets but astonishingly no pellet or bullet was recovered therefrom. The learned counsel further attacked the testimony of the eye-witnesses on the ground that their conduct of running back to the Mandi of Ali Muhammad was also unnatural, as both the P.Ws. had crossed the appellant and to them the proper assylum was the Mandi of Karim Khan, because running back to the Mandi of Ali Muhammad was attended .with manifest danger of being fired by the appellant. On this point, the learned counsel has stated that both the witnesses were not present. He also made reference to the metallic piece recovered from the body of the deceased by the doctor which were found pieces of bullet as per report of the Forensic Science Laboratory, Peshawar. Thus, the non-recovery of any empty of .12 bore, non-recovery of the pellet from the wall of grain Mandi of Karim Khan and non-recovery of any pellet from the body, of the deceased speak volume about the fact that the charge against the appellant was false. The learned counsel also referred to the post-mortem report which shows that there are four entrance wounds and one wound of re-entrance which is wound No.5 and argued that the size of the entrance wound is 1/4" x 1/4" and above, which shows that these entrance wounds are caused by bullets and not by pellets. In support of his such argument he has referred to the cross-examination of the doctor, wherein he stated that in his opinion, entrance wounds on the person of the deceased are possible from the similar size of projectile and by putting this evidence in line with the pieces of bullets recovered from the body leaves no other possibility but the irresistible conclusion that the death was caused by bullet injuries. He still further argued with reference to the statement of P.W.12 in his own words as follows:--

"Accused Nazar and absconding accused Batar appeared from the bushes. They were armed with rifles. 1st Nazar accused fired at us with his .12 bore shotgun with which Hassan Shah was hit."

On this point, the testimony of this witness is irreconcilable, as on the one hand he says that they were armed with rifles, which means that both the accused were armed with rifles but simultaneously he changed version from rifle to .12 bore shotgun. This diversity reflects upon the truthfulness of the eye-witnesses, said the learned counsel.

On the other hand, the learned counsel for the State, however, admitted that in the instant case, no shotgun has been used but still he argued that in view of the statements of the eye-witnesses, the presence of the appellant was established and, as such, according to him, section 34, P.P.C. was attracted to the present case.
Learned counsel for the complainant, however, defended the impugned judgment of the Court below and submitted that the occurrence had taken place in the broad daylight and the appellant alongwith the absconding co-accused are directly nominated in the F.I.R. According to him, the medical evidence supports the prosecution version and the mere non-recovery of the empties or pellets from the venue of occurrence are not sufficient to set aside the conviction and sentence of the appellant. He also argued that there is a motive for the occurrence and the accused remained absconder for a sufficient long time. According to the learned counsel, the punishment awarded to the appellant is not appropriate and prayed for enhancement of the sentence to the normal penalty of death, because according to the learned .counsel, there are no mitigating circumstances available to the appellant.
We have heard the rival arguments of both the learned counsel for the parties and also for the State. We may observe that in the F.I.R. as well as in the statement before the trial Court, the complainant has not specifically mentioned the kind of arms possessed by the appellant and the absconding accused. He has used the generic words of Topaks purposely so as to fit it any kind of injury found on the person of the deceased, but a look at the sit plan which was prepared on the very day of occurrence shows that on point No.5, the appellant was shown equipped with .12 bore shotgun and subsequently, P.W.12, i.e. Dost Muhammad, also stated in his examination-in-chief that accused Nazar fired at them with his .12 bore shotgun. These facts clearly established the point that the appellant was attributed a .12 bore shotgun. It is also a matter of evidence that the appellant had fired two shots but neither any empty of .12 bore was recovered from the scene of occurrence, nor any pellet could be recovered from the wall which bore the marks of projectiles. The non-recovery of any pellet or bullet from the said wall is a bagging question from the prosecution, because there was no through and through hole in the wall wherefrom the projectile could go across. Since the particular kind of weapon has been attributed to the appellant, therefore, the evidence is to be searched so as to explore anything having a nexus with the use of the .12 bore shotgun. We have searched the entire evidence and have also put question to the learned counsel for the complainant, but neither he could point out any such evidence, nor we could explore from the record any evidence having a tendency to show that the .12 bore shotgun was used. Only .7 m.m. empties were recovered from the spot and that spot has been attributed to the absconding co-accused and this is an eloquent indicator pointing towards the fact that the occurrence had not taken place in the manner as has been alleged by the P.Ws. and, as such, the presence and witnessing of the occurrence by the eye-witnesses is highly doubtful. It is also a salient feature of the case that the metallic pieces recovered from the body of the deceased were found pieces of bullet. Thus, an irresistible conclusion can be drawn that the crime was committed by a man who was armed with a rifle and no shotgun has been used, as fairly admitted by the learned counsel for the State. We further observe that according to the eye-witnesses, both the accused had fired one fire shot each at two times, which means in other words that two fire shots were fired by each accused, but according to P.W.12, on the second time of firing, only the fire shot of Batar had hit the deceased which means that in all three shots had hit the deceased. If this version of the eye-witnesses is accepted, then the deceased should have received three entrance wounds or at the most four if one re-entrance wound is taken into consideration, but in the instant case, there are five entrance wounds, out of which wound No.5 is re-entrance, which goes materially counter to the ocular version and this incongruity would again lead to believe that the occurrence has not taken place in the manner and style as stated by the eye-witnesses. Thus, the aggregate result of the above discussion on the medical and the ocular evidence would be that either the witnesses were not present, or the involvement of the appellant was exaggerated and false. This could possibly be the act of one man.
Another material discrepancy in the statements of the two eyewitnesses is that P.W.12 Dost Muhammad stated that his statement was recorded in the police station there and then, whereas P.W.11 i.e. the complainant stated that Dost Muhammad did not narrate the occurrence in the police station but he had accompanied the dead body of the deceased to the police station and later on he was examined on the spot. Thus, on the very examination of P.W.12, there is a contradiction between the two eyewitnesses.
In the instant case, the complainant patty has shown previous enmity between them and the accused party and, in- such circumstances, the eye-witnesses who are closely related to the deceased fall within the domain of "interested witnesses" and for the purposes of recording conviction for the offence involving capital punishment, rule of prudence and caution demands that there should be independent corroboration to the prosecution case. But, we have thoroughly scanned the entire record and have analytically observed all the attending circumstances and it is obvious that no independent corroboration in the form of circumstantial evidence is forthcoming in support of the ocular testimony of the interested witnesses. Rather, it is a case where the circumstantial evidence in the form of site plan and recoveries are manifestly speaking against the prosecution version.
Thus, in the wake of the above discussion and in view of the submissions made by the learned counsel for the appellant, we are obliged to hold that the conviction of the appellant is not warranted by law and is the result of erroneous interpretation of the facts and circumstances of the case, 13. Consequently, we accept this appeal, set aside the conviction and sentence of the appellant and he shall be set free forthwith if not wanted in any other case. Resultantly, the criminal revision filed by the complainant for enhancement of the conviction and sentence of the appellant is dismissed.

H.B.T.116/P Appeal accepted.

PCRLJ 2000 PESHAWAR HIGH COURT 2038 #

2000 P Cr. L J 2038

[Peshawar]

Before Mian Muhammad Ajmal, C. J. and Shah Jehan Khan, J

WISAL QAMAR---Appellant

versus

NOOR DAD KHAN and another---Respondents

Criminal Appeal No. 161 of 1996, decided on 18th April, 2000.

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

----S. 302---Appreciation of evidence---Contradiction between ocular version and medico-legal report---Recovery of empties from the spot---Natural witness---Occurrence took place near a mosque around the time of Jumma prayer ---Imam-e-Masjid was produced as defence witness---Defence witness was a disinterested person as he was neither partisan nor relative of either of the parties nor had any enmity with either of the parties---Presence of Imame-Masjid in the mosque at the relevant time was not only natural but also affirmed by prosecution witness---Glaring contradiction between the ocular version and the medico-legal report was indicative of non-presence of the eye-witnesses at the time of firing at the deceased---Where the prosecution failed to establish guilt of the accused by means of ocular evidence, the recovery of empties from the spot and the spent bullets would not serve as sufficient corroboration of the ocular version---Conviction of accused was set aside in circumstances.

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

----S. 302---Appreciation of evidence ---Abscondence of accused ---Effect--Abscondence of accused by itself did not establish the guilt of accused unless it was corroborated by other cogent evidence---Where prosecution had failed to bring home guilt to the accused through ocular evidence, alleged abscondence was of no use in circumstances.

Jehanzeb Rahim, Bar-at-Law for Appellant. Ishtiaq Ibrahim, A.A.-G. for the State. Abdul Samad Khan for the Complainant.

Date of hearing: 29th February, 2000.

JUDGMENT

SHAH JEHAN KHAN, J.--- Wisal Qamar, appellant herein, charged under section 302, P.P.C. vide F.I.R. No.201, dated 8-6-1990 Police Station Akora Khattak for the murder of Imdad Gul son of Ihsanullah resident of Misri Banda, was tried by the learned Sessions Judge, Nowshera who vide his judgment and order, dated 19-5-1996 found him guilty, convicted and sentenced him to imprisonment for life and a fine of Rs.20,000 or in default to undergo one year's R.I. The fine on realisation was ordered to be paid as compensation to the legal heirs of the deceased. Benefit of section 382-B, Cr.P.C. was also extended to the appellant: Feeling aggrieved of his conviction and sentence the appellant has approached this Court with the appeal in hand.

In this case the appellant was once convicted and sentenced under section 302, P.P.C. to life imprisonment and a fine of Rs.10,000 or in default to undergo one year's R.I. vide order, dated 16-4-1994 of the learned Sessions Judge, Nowshera but in Criminal Appeal No.102 of 1994 by the appellant vide this Court's order dated 17-1-1996 his conviction and sentence was set aside and the case was remanded back to the trial Court with the direction either to record the statement of the appellant on oath or record his statement to the effect that he does not want to be examined on oath. After remand on 13-3-1996, the statement of Wisal Qamar was recorded to the effect that he did not want to be examined on oath and thereafter the impugned judgment and order, dated 19-5-1996 was recorded as mentioned above.
The brief facts are that the complainant alongwith his brother Imdad Gul were going to mosque situated in Yaro Khel, Misri Banda, for preparation of Juma Prayer. The complainant stayed outside the mosque for urinating himself while his brother went inside the mosque. According to the complainant after urinating himself, the complainant was entering into the mosque while his brother Imdad Gul was brushing his teeth. Wisal Qamar appellant duly armed with pistol was standing nearby and all of a sudden fired two shots, which hit the brother of the complainant, who fell on the ground and died. The appellant went out of the mosque while the complainant ran away due to fear. According to the report Musafar Shah and Fateh Khan were present on the spot, who witnessed the occurrence. The report was made by the complainant in the police station which was recorded in F.I.R. Exh.P.A. After investigation of the case complete challan was put in Court. On 16-5-1993 charge was framed against the accused to which he pleaded not guilty and claimed trial.
The prosecution examined eleven witnesses in all in support of its case. The appellant was examined under section 342, Cr.P.C. wherein he stated that he was innocent and falsely charged. The appellant produced one Niaz Muhammad as defence witness. After remand the statement of accused was recorded as per direction of this Court in which he opted not to be examined on oath.
Dr. Shafiqur Rehman was examined as P.W.9 who conducted the post-mortem examination on the dead body of Imdad Gul deceased on 8-6-1990 at 1-50 p.m. and found the following:--

External examination:

(1) Fire-arm entry wound on the left side of chest just below the neck about 1/4" x 1/4".

(2) Fire-arm entry wound on the right side near the sternum about 1/4" x 1/4".

(3) Fire-arm exit wound on the right thigh of scapula on the posterior aspect of chest about 1/2" x 1/2".

(4) Fire-arm exit wound on the posterior aspect 1/2" x 1/2".

Internal examination:

Plurae, right and left lungs, pericardium and heart, blood vessels found injured. Scapula on both sides fractured.

Remarks:

The person died due to injuries to heart, both lungs and blood vessels, resulting into haemorrhage.

Time between injuries and death instantaneous. Time between death and post-mortem about 2 hours 50 minutes.

The post-mortem report with pictorial is Exh.P.F./1 and bears his signature. The clothes of the deceased were handed over to the police.

We have heard learned counsel for the parties and have also perused record of the case.
Noor Dad Khan (P.W.6) is the real brother of Imdad Gul deceased while Musafir Shah (P.W.7) is the maternal-uncle of deceased. P.W.6 in his statement before the Court has deposed that on the day of occurrence he had gone to the mosque for taking bath to prepare himself for Juma Prayer. Before his reaching the mosque his brother Imdad Gul had already reached there and was busy in cleaning his teeth in the place of ablution. He noticed that Wisal Qamar appellant was standing behind his brother duly armed with Tamacha. He took out his pistol from the trouser fold and fired two consecutive shots at the deceased with which he was hit and after going for 8/10 paces towards the west fell on the ground and the accused-appellant decamped from the spot. At the time of occurrence Musafir Shah (P.W.7) and Fatehullah, the uncle of deceased an abandoned P.W. were present there, witnessed the occurrence and they jointly put the deceased on a cot and took to police station for lodging the report (Exh.P.A.). Musafir Shah (P.W.7) has stated in his statement that he had gone to the mosque where the occurrence took place at about 11-00 a.m. to prepare himself for Juma Prayer and for recitation of Holy Qur'an. He found Imdad Gul busy in teeth brushing. In the meanwhile Wisal Qamar appellant entered the mosque proceeded towards the deceased where he took out his pistol from his trouser fold and fired two shots at the deceased effectively. The deceased after receiving the fire shots went up fo 20 feet, fell on the ground and died there. The convict-appellant left the spot through main gate of the mosque after commission of the offence. He affirmed the presence of Noor Dad Khan (P.W.6), Fatehullah abandoned P.W. and Imam Masjid at the relevant time and nobody else was present in the mosque. Both the eye-witnesses have stated that the accused was annoyed on the help of Imdad Gul deceased extended by him to the police in lifting the belongings of the proclaimed offender, namely Ambaras who happened to be the relative of the appellant. This motive was introduced for the first time in their Court statement. No such motive was either disclosed in the F.I.R. (Exh.P.A.) nor in the statements recorded under section 161, Cr.P.C. Both the P.Ws. contradicted each other in respect of arrival of the appellant, P.Ws. and deceased to the mosque. Noor Dad Khan (P.W.6) has stated that deceased had reached the mosque before his arrival while Musafir Shah (P.W.7) has stated that it was Noor Dad (P.W.6) who arrived there in the mosque before the arrival of Wisal Qamar and deceased. The version of P.W.6 regarding his arrival in the mosque for preparation for Juma prayer at 11-00 hours is not convincing and it is very strange to note that from the entire village community only, the deceased, his real brother P.W.6, maternal-uncle P.W.7 and uncle Fatehullah abandoned P.W. had come to the mosque for preparation for Juma prayer and none else had come to the said mosque for such preparation. The site plan (Exh.P.B.) prepared at the instance of eye-witnesses also creates serious doubt regarding the presence of P.W.6 at point No.3 and Fatehullah abandoned P.W. at point No.5. Both points are located in the two entrance gates of the mosque. The accused if fired at, the deceased from point No.6 and decamped through the main gate of the mosque from either of thq two gates he has to pass through either P.W.6 or P.W.7. P.W.7 has been allocated point No.4 in the site plan falling in-between points Nos.5 and 6. The culprit could easily be overpowered by the witnesses if he had passed through them in the main entrance gate of the mosque but none of the P. Ws. have deposed that either they tried to catch hold of the appellant or made hue and cry to the inhabitants of the village for catching hold of the accused. The presence of P.W.6 at point No.3 and P.W.7 at point No.4 is highly doubtful and not believable. Their deposition is also not worth reliance as they have made material improvement in their statement before the Court so that the case of the prosecution must be further strengthened.

The presence of Imam Masjid at the relevant time is natural in the sense that Imam Masjid is supposed to be present at the mosque and none of the prosecution witnesses have denied the presence of Imam Masjid. Niaz Muhammad, Imam Masjid was produced as defence witness (D.W.1) who deposed that on the day of occurrence he was present in the mosque busy in reading a book and heard the report of fire shots which attracted him outside the room and saw deceased then injured but not capable of talking lying on the ground and nobody was present when he reached near the deceased. Subsequently, people attracted there but he did not notice Noor Dad (P.W.6) and Musafir Shah (P.W.7). The defence witness is a disinterested person as he is neither partisan or relative of either of the parties nor had any enmity A with either of the parties. His presence in the mosque at the relevant time is not only natural but also affirmed by P.W.7. In these circumstances the prosecution has not successfully established the presence of P.Ws.6 and 7 at the scene of occurrence at the relevant time.

The medico-legal report is also contradictory to the statement of P.W.6 inasmuch as the witness has deposed that Wisal Qamar who was standing behind Imdad Gul deceased and fired at him from his back but the medico-legal report reveals that there was found fire-arm entry wound on the left side of chest below the neck and another entry wound on the right side near the sternum. Both the entrance wounds could not be caused from the back side. This glaring contradiction between the ocular version and the B medico-legal report speaks of the non-presence of the alleged eye-witnesses

at the time of firing at the deceased.

The prosecution has also alleged abscondence of the appellant from 8-6-1990 to 11-11-1992 which was explained by the appellant in his statement under section 342, Cr.P.C. who stated that he did not abscond but as the complainant party was influential enough, therefore, due to the fear of complainant party and the local police he did not dare to surrender. The abscondence by itself does not establish the guilt of the accused unless it is corroborated by other cogent evidence.
Since the prosecution has miserably failed to establish the guilt of appellant by means of ocular evidence the recovery of empties from the spot and the spent bullets will not serve as sufficient corroboration of the ocular version. The alleged abscondence is also of no use as the prosecution has miserably failed to bring home guilt to the accused through ocular evidence.
From the discussion made above, we - are of the view that the prosecution has not proved its case against the appellant beyond reasonable doubt. Therefore, this criminal appeal is accepted, the conviction and sentence of the appellant recorded through the impugned judgment and order, dated 19-5-1996 is set aside and the appellant is acquitted of the charge levelled against him. The appellant Wisal Qamar be set at liberty forthwith if I D not required in any other case. , Q.M.H./M.A.K./101/P

Appeal allowed.

Quetta High Court Balochistan

PCRLJ 2000 QUETTA HIGH COURT BALOCHISTAN 465 #

2000 P Cr. L J 465

[Quetta]

Before Mir Muhammad Nawaz Marri and Fazal-ur-Rehman, JJ

MUHAMMAD BAQA alias BAQIR---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.37 of 1999, decided on 14th September, 1999.

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

----S. 302---Appreciation of evidence---Evidence against accused consisted o1 recovery of rifle allegedly used in occurrence, ocular testimony complainant and other prosecution witness and confessional statement accused---Rifle allegedly recovered from accused had neither been sent to expert nor its recovery had been witnessed by independent witnesses ---Such doubtful recovery of rifle had rightly not been relied upon by Trial Court--Complainant and other prosecution witnesses, who were real uncle and brother of deceased, being closely related to deceased were justifiably not relied upon---Retracted delayed confessional statement of accused not recorded in accordance with mandatory provisions contained under Ss. 164 & 364, Cr.P.C. could not be made basis for conviction especially when same was not corroborated by other evidence---Prosecution having failed to prove its case beyond reasonable doubt, accused was acquitted.

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

----Ss. 164 & 364---Qanun-e-Shahadat (10 of 1984), Ares.31, 37 & 38--Penal Code (XLV of 1860), S.302---Admission and confession---Recording and authenticity o---Trial Court in convicting accused relied upon retracted confessional statement of accused which was not recorded in accordance with provisions contained in Ss.164 & 364, Cr.P.C. which were mandatory in nature---Non-compliance of said mandatory provisions of law, was not a mere irregularity which was curable, but was an illegality which was incurable---Conditions for accepting confession as admissible evidence against person making it were much more severe and strict according to Shariat.

----Principles---Judgment of Court should be based strictly on evidence available on record and not on mere surmises---Moral conviction of Court about guilt of accused could not form basis of his conviction---One tainted piece of evidence could not corroborate other such evidence.

Mohsin Javed for Appellant.

Nasrullah Khan Achakzai for the State.

Date of hearing: 17th August, 1999.

PCRLJ 2000 QUETTA HIGH COURT BALOCHISTAN 472 #

2000 P Cr. L J 472

[Quetta]

Before Mir Muhammad Nawaz Marri and Fazal-ur-Rehman, JJ

HAMEEDULLAH --- Appellant

versus

THE STATE---Respondent

Criminal Appeal No.246 of 1999, decided on 15th November, 1999.

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

----S. 367---Contents of judgment---Judgment would contain points for determination, discussion thereon and the reasons for decision---Judgment should specify the offence "if any" of which and section of law under which accused was convicted and the punishment to which he was sentenced--Judgment must not be vague and it must conform to requirements of S.367, Cr.P.C.

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

----S. 6---Criminal Procedure Code (V of 1898), S.367---Appreciation of evidence---Conviction of accused under S.6, Control of Narcotic Substances Act, 1997 was not legal as same was not a penal clause whereas punishment for contravention of said section was provided under S.9 of the said Act--Judgment and sentence awarded to accused was set aside and case was remanded to be decided afresh after hearing parties and by writing a proper judgment in accordance with law.

1996 SCMR 3 ref.

Muhammad Aslam Chishti for Appellant.

Shakil Mirza for the State.

Date of hearing: 18th October, 1999.

PCRLJ 2000 QUETTA HIGH COURT BALOCHISTAN 478 #

2000 P Cr. L J 478

[Quetta]

Before Mir Muhammad Nawaz Marri and Fazal-ur-Rehman , JJ

DHADAR KHAN-=-Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.237 of 1999, decided on 25th October, 1999.

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

----S. 13-E---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Deputy Superintendent of Police under whose supervision house of accused was raided and arms and ammunition allegedly recovered were not produced by prosecution despite application of accused in that respect--Provision of S.103, Cr.P.C. having not been complied with, same was fatal to the prosecution case---No efforts were made to secure two Mashirs from public---Testimony of police personnel in absence of other reliable piece of evidence was not warranted for conviction of accused---Recovery effected being doubtful, prosecution evidence could not be relied upon for conviction of accused---Prosecution having failed to prove the case beyond reasonable doubt against accused, he was acquitted of the charge extending him benefit of doubt.

PLD 1997 SC 408 ref.

Amir Khan Afridi for Appellant. Shakil Mirza for the State.

Date of hearing: 12th October, 1999.

PCRLJ 2000 QUETTA HIGH COURT BALOCHISTAN 483 #

2000 P Cr. L J 483

[Quetta]

Before Mir Muhammad Nawaz Marri and Fazal-ur-Rehman, JJ

MUHAMMAD QASIM---Appellant

Versus

THE STATE---Respondent. .

Criminal Appeal No.328 of 1998, decided on 15th November, 1999.

Penal Code (XLV of 1860)---

----S. 316---Appreciation of evidence---Occurrence had not been disputed, but it was a sudden fight---No previous enmity existed between accused and the deceased---Accused had caused only one brick blow and had not acted in a cruel or desperate manner---Accused, in circumstances, had rightly been held guilty of offence under S.316, P.P.C.---Matter had since been compromised between the parties out of Court and compromise deed was duly completed---Widow of deceased appeared before the tourt and had confirmed that she and other legal heirs of deceased had forgiven accused after receiving amount from him---Accused, in circumstances, was sentenced to period of imprisonment already undergone by him to meet the ends of justice.

Abdul Wadood Khan for Appellant. Ali Ahmed Kurd for the Complainant. Noor Muhammad Achakzai, Addl. A.-G. for the State.

Date of hearing: 11th October, 1999.

PCRLJ 2000 QUETTA HIGH COURT BALOCHISTAN 489 #

2000 P Cr. L J 489

[Quetta]

Before Mir Muhammad Nawaz Maui and Fazal-ur-Rehman, JJ

MUHAMMAD AKRAM---Petitioner

Versus

HAJI MIR AZIZ AHMED and 3 others---Respondents

Constitutional Petition No. 450 of 1999, decided on 29th September, 1999.

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

----S. 203---Dismissal of complaint---Effect on second complaint---Order of dismissal of a complaint under S. 203, Cr.P.C. is no bar to the entertainment of second complaint on the same facts.

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

----S 202---Preliminary enquiry---Appraisal of evidence---Approach in appraisal of evidence at the time of holding of a preliminary enquiry and at the regular hearing of a criminal case---Distinction.

There is a marked distinction as to the approach of appraisal of evidence at the time of holding of a preliminary enquiry and at the regular a criminal case. At the formal stage, the Magistrate or the Court is not expected to examine the evidence or the case minutely, whereas, at the later stage the Magistrate or the Court is required to appraise the evidence thoroughly and to record its findings on the basis of such appraisal and that any benefit of doubt arising out of such appraisal should be given to the accused person.

----Ss. 435, 436, 202, 203 & 204(3)---Revisional powers---Dismissal of complaints under Ss.203 & 204(3), Cr.P.C. can be reversed by the Sessions Court and/or by the High Court under S.435/436, Cr.P.C. and a further enquiry can be ordered---Section 436, Cr.P.C. also visualises cases coming to the notice of the Sessions Judge otherwise than under S.435, Cr.P.C.-- What 5.202, Cr.P.C. permits can undoubtedly be done by Sessions Court under S.436, Cr.P.C.

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

----S. 411---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.9/14---Constitution of Pakistan (1973), Art .199--Constitutional petition---Opinion of Investigating Officer was not binding on the Court, nor the finding of Investigating Officer was a legal evidence--Court could disagree with the police and ask for further enquiry or investigation---Magistrate had failed to fully appreciate the facts given in the F.I.R., statements and subsequent complaints made by the complainant--Order of dismissal of complaint passed by Magistrate was, therefore, rightly set aside by Sessions Court in exercise of its reversional jurisdiction--Magistrate on submission of the report by the police was directed to deal with the same in accordance with law---Constitutional petition was dismissed accordingly. [p. 493) D, E, F & G

Ghulam Mustafa Mengal for Appellant. Ali Ahmed Kurd and A.A. -G. for Respondents.

Date of hearing: 14th September, 1999.

PCRLJ 2000 QUETTA HIGH COURT BALOCHISTAN 495 #

2000 P Cr. L J 495

[Quetta]

Before Mir Muhammad Nawaz Marri and Aman Ullah Khan, JJ

HAJI BISMILLAH---Appellant

versus

ABDUL ALI and another---Respondents

Criminal Appeals Nos. 320 and 340 of 1998, decided on 5th October, 1999.

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

----S. 417---Appeal against acquittal---Principles regarding appreciation of evidence in an appeal against acquittal were slightly different from those in an appeal against conviction---Facts and circumstances of each case vary from one another, every case has to be decided on its own merits.

Ghulam Sikendar and another v. Memraiz Khan and others PLD 1985 SC 11 ref.

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

----S. 417---Penal Code (XLV of 1860), S.302/324/365/511/147/148/149--Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Appeal against acquittal---Evidence on record including medical evidence had fully established that eye-witnesses who received injuries and had corroborated each other on material points, were very much present at the place of occurrence---Accused had failed to prove on record that ocular witnesses being brothers of deceased, had a motive to falsely implicate him in the case---Mere relationship of a witness would not make him an interested witness and it would be difficult to believe that a person would let go free the actual murderer of his brother and nominate an innocent person as a culprit---Interested witness would not allow actual murderers to go scot-free by involving an innocent person---No animosity had been alleged to the ocular witnesses by accused nor anything was brought on record to infer that said witnesses had any motive to falsely implicate accused in commission of offence ---F.I.R. containing names of witnesses and assailants and weapons carried out by each assailant, had been promptly lodged---Certain improvements and omissions, though were made by complainant in his statement before Court, but said improvements and omissions would not discredit testimony of witnesses---Testimony of complainant was corroborated by recovery of empties coupled with report of statements of witnesses had fully been testimony of eye-witnesses and plea of alibi taken by accused proved to be concocted one and not convincing---Prosecution having proved its case against accused beyond any shadow of doubt, order acquitting accused was set aside in appeal against acquittal.

Ghulam Sikendar and another v. Memraiz Khan and others PLD 1985 SC 11; Muhammad Khan and others v. Zakir Hussain and others PLD 1995 SC 590; Irshad Ahmad and others v. The State and others PLD 1996 SC 138; Zar Bahadar v. The State 1978 SCMR 136; Nallamsetty Yanadaiah v. The State of Andhra Pradesh 1994 SCMR 588; Muhammad Ahmad v. The State 1997 SCMR 89; Abd-ur-Rasheed v. Umid Ali and others PLD 1975 SC 227 and Ayyaz Ali Shah v. The State 1997 SCMR 1296 ref.

----S. 302/324/365/511/147/148/149---Delay in recording statements of eyewitnesses---Effect---Once statements of eye-witnesses were established their testimony could not be ruled out of consideration only because their statements were recorded after some delay by Police Authorities, particularly when no efforts were made by Investigating Officer to record statements under S.161, Cr.P.C.

Kifayatullah and another v. The State PLD 1975 Pesh. 131; Alam Sher and 5 others v. The State 1975 PCr.LJ 1188 and Hamid Javed alias Hamidi v. The State 1988 SCMR 39 ref.

Azizullah Memon and K.N. Kohli for Appellants (in Criminal Appeal No.320 of 1998), Malik Sikandar Khan, A.-G. for the State (in Criminal Appeal No.320 of 1998).

Sardar Muhammad Latif Khosa assisted by Ehsanulhaque Khan for Respondents (in Criminal Appeal No.340 of 1998).

Nasrullah Khan Achakzai assisted by A.-G. for the State (in Criminal Appeal No.340 of 1998).

Dates of hearing: 15th and 16th of September, 1999.

PCRLJ 2000 QUETTA HIGH COURT BALOCHISTAN 1064 #

2000 P Cr. L J. 1064

[Quetta]

Before Fazal-ur-Rehman, J

MUHAMMAD AYUB CHUGHTAI---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.50 of 2000, decided on 1st March, 2000.

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

----S. 497---Penal Code (XLV of 1860), S.409---Prevention of Corruption Act (II of 1947), S.5(2)---Bail---Section 409, P.P.C fell within the prohibitory clause of S.497(1), Cr.P.C.---Accused a Divisional Account Officer---Prosecution witnesses had fully implicated the accused in the case---Eleven cheques were yet to be secured by the prosecution and in view of the evidence and disclosure made by the co-accused the probability of tampering with the evidence could not be ruled out---Case against accused could not be said to be one of further inquiry simply because the allegations levelled against him were still under investigation---Rule of consistency was hardly applicable to the case of accused---Reasonable grounds existed to prima facie believe the accused being connected with the offence alleged against him---Bail was declined to accused -in circumstances.

1995 MLD 766; 1994 SCMR 393; 1995 SCMR 170; 1996 SCMR 1132; 1999 MLD 681; 1976 SCMR 178; Imtiaz Ahmed v. State PLD 1997 SC 545 and 1995 PCr.LJ 430 ref. , '

Syed Ayaz Zahoor for Applicant.

Addi. -A.-G. for the State.

Date of hearing: 17th February, 2000.

PCRLJ 2000 QUETTA HIGH COURT BALOCHISTAN 1086 #

2000 P Cr. L J 1086

[Quetta]

Before Javed Iqbal and Fazal-ur-Rehman, JJ

SHAH WALI---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.288 of 1999, decided on 21st December, 1999.

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

----S. 9(c)---Appreciation of evidence---Police officials having no ill-will against the accused were competent witnesses who had supported the prosecution case and their testimony could not be discarded only for the reason of their being police employees---Police could not be believed of having planted the narcotics on the accused from their own sources---Defence plea taken by accused being self-contradictory could not be relied upon--Evidence regarding the recovery of narcotics from the accused was not contradictory---Chemical Examiner's Report in respect of the recovered "Charas" and opium was positive---Delayed despatch of the seized narcotics to the Chemical Examiner and his report thereon were not fatal to the prosecution case---Trial Court by means of a well-reasoned judgment had found the accused guilty which was neither perverse nor arbitrary---Conviction and sentence of accused were upheld in circumstances.

1987 SCMR 17; PLD 1984 SC 278; 1986 SCMR 11; PLD 1987 FSC 22; 1996 PCr. LJ 1722; PLD 1997 Quetta 69; 1996 PCr. LJ 1546; ' 1992 PCr.LJ 1725; 1997 SCMR 1180; 1998 MLD 506; PLD 1990 SC 1176 and 1993 SCMR 789 ref.

Hashim Khan Kakar for Appellant.

Miss Eram Mehmood for the State.

Date of hearing: 23rd November, 1999.

PCRLJ 2000 QUETTA HIGH COURT BALOCHISTAN 1096 #

2000 P Cr. L J 1096

[Quetta]

Before Fazal-ur-Rahman, J

MOULA DAD---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.32 of 2000, decided on 22nd February, 2000.

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

----S. 497(2)---Penal Code (XLV of 1860), S.302/324/34---Bail---Sole injury sustained by the deceased was attributed to co-accused---Accused had allegedly made an aerial and ineffective firing without aiming his pistol towards the deceased who was only one or two paces away from himVicarious liability of the accused for the commission of the offence of murder was yet to be determined---Motive stated for the offence over a dispute regarding the street had already been settled by the notables in favour of the accused---Case against accused required further probe into his guilt in circumstances and he was admitted to bail accordingly.

PLD 1991 SC .923 ref.

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

----S. 497(2)---Bail on the ground of further inquiry---Where grounds exist for further inquiry into the guilt of accused, bail cannot be withheld---Court in order to ascertain whether reasonable grounds exist under S.497(2), Cr.P.C. has of necessity to look into the available material.

Naeem Akhtar for Applicant.

Noor Muhammad Achakzai, Addl. A.-G. for the State.

Date of hearing: 9th February, 2000.

PCRLJ 2000 QUETTA HIGH COURT BALOCHISTAN 1123 #

2000 P Cr. L J 1123

[Quetta]

Before Iftikhar Muhammad Chaudhary, C. J. and Fazal-ur-Rehman, J

JAN MUHAMMAD, and 8 others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.321 of 1999, decided on 3rd August,, 1999

Criminal Procedure Code (V of 1989)---- .

----S. 497---Penal Code (XLV of 1860), S.302/147/148/149---Bail, grant of---No specific role had been assigned to accused in the F. I. R.---Co-accused who had been ascribed a role had already been released on bail by High Court---Complainant and other eye-witness had not supported the prosecution version at the trial---Matter appeared to have been compromised between the parties---No reasonable grounds were: available for believing the accused guilty of having committed a scheduled offence---Rule of consistency was also attracted to the case of accused---Bail was granted to accused in circumstances.

Ghulam Ali J. Rind. for Applicants.

Shakil Ahmed Mirza for the State.

Date of hearing: 27th July, 1999

PCRLJ 2000 QUETTA HIGH COURT BALOCHISTAN 1402 #

2000 P Cr. L J.1402

[Quetta]

Before Javed Iqbal, C. J. and Fatal-ur-Rehman, J

KARIM BAKHSH alias ABDUL KARIM and 2 others---Appellants

versus

THE STATE---Respondent

Criminal Appeals Nos.(S)1 of 2000 and (Q) 311 and Murder Reference No. 15 of 1999, decided on 24th March, 2000.

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

----S. 302/34---Appreciation of evidence---Evidence available on record was, in no way sufficient to lead to a conclusion that accused persons could be convicted of the offence alleged against them---Case of prosecution, thus, was doubtful in nature---Incident took place during night when everybody was asleep and persons who had selected such odd hours to accomplish their act, would, in ordinary course, not have given any opportunity to identify -them---Identification of accused persons during dark night from distances and in the manner given by prosecution witnesses was not possible--Identification of accused in the light of the torch was not to be considered sufficient piece of evidence---Taking of said torch into possession and its production in the Court with two cells and not supported by prosecution witnesses also made recovery of the same doubtful---Recovery of incriminatory weapon inspired no confidence and recovery of blood-stained earth, clothes and empty also could not link accused with commission of offence---No evidence was available to the effect that fire was shot by accused persons upon deceased---Contradictory statements of witnesses regarding identification of accused persons in dark night in the light of torch after occurrence, could not be relied upon---Prosecution having failed to prove case against accused persons, conviction and sentence awarded to them by Trial Court, were set aside in circumstances.

1995 SCMR 1345; 1994 PCr.LJ 356; 1994 PCr.LJ 596; 1994 PCr.LJ 1057; 1994 PCr.LJ 478; 1994 PCr.LJ 533;, 1994 PCr.LJ 1254; 1994 PCr.LJ 1237; PLD 1983 SC 35; PLD 1991 SC 923; 1998 PCr.LJ 114 and 1997 PCr.LJ 46 ref.

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

----S. 302/34---Appreciation of evidence---Evidence on capital charge, must come from unimpeachable source---Defence plea of accused at trial was to be placed juxtaposition with prosecution version and Court was to try to evaluation it and discover probabilities of the case.

Zaheer Din ,v. The State 1993 SCMR 1628; 1995 SCMR 1345 and 1999 SCMR 1220 ref.

Javed Iqbal for Appellants. Noor Muhammad Achakzai, Addl. A.-G. for the State.

Date of hearing: 12th February, 2000.

PCRLJ 2000 QUETTA HIGH COURT BALOCHISTAN 1621 #

2000 P Cr. L J 1621

[Quetta]

Before Javed Iqbal, C. J. and Aman Ullah Khan Yasinzai, J

AZAM JAN ZARKOON---Appellant

versus

THE STATE---Respondent

Criminal Jail Appeal No.29 of 1998, decided on 3rd April, 2000.

(a) Administration of justice-

---- Same person should not be both prosecutor and the Judge in any action and a Judge should not hear any matter in which he had personal interest in the decision on it---Proceeding for contempt of Court was an exception to the said general rule.

(b) Contempt of Court---

---- Contempt committed in face of a Judge of Court---When a contempt was committed in face of a Judge of Court, that very Judge of Court would be proper Tribunal to decide the whole matter and litigants were not entitled to have a say in selection of Judge---Maligned Judge, in cases of contempt of Court had necessarily to sit on the Bench trying the case because the facts constituting contempt were in his knowledge and matter had to be decided then and there---Proceedings for contempt of Court were an exception to the general rule that "same person should not be both prosecutor and Judge".

PLD 1975 Lah. 15:34; The State v. Mujibur Rehman Hashmi PLD 1973 Lah. 1; Ashfaque Ahmed Sheikh v. The State PLD 1972 SC 39; In re: Amrita Bazar Patrika 45 IC 338; In re: Tarit Kanti AIR 1918 Cal. 988; In re: Medhava Singh AIR 1923 Pat. 185; In re: An Advocate of Allahabad AIR 1935 All. 1; In re: K.L. Gauba AIR 1942 Lah. 105; Sukhdev Singh v. Teja Singh AIR 1954 SC 186; In re: William Tayler AIR 1918 Cal. 713; Emperor v. Murli Manohar AIR 1929 Pat. 72; In re: Subrahmanyan AIR 1943 Lah. 329; In re: Karamatullah Khan PLD 1970 SC 400; Attorney-General for Pakistan v. Yusuf Ali Khan PLD 1972 SC 115; Marshall's Book on Natural Justice; Dorsey K. Offutt v. United States of America 99 L Ed. 11; Rex v. Almon (1765) Wilmot 243 and PLD 1972 Lah. 3 ref.

---- Punishment for contempt of Court---Object---Courts punish for contempt of Court not in order to protect Courts or Judges or Juries, but in order to safeguard and uphold rights of suitors and ensure that justice is done---Such jurisdiction exists for purpose of preventing interferences with course of justice and for maintaining authority of law as is administered in Courts--Object of contempt proceedings is not to afford protection to Judges personally from imputations to which they can be exposed as individuals but is intended to be a protection to the public whose interests are likely to be very much affected if, by the act or conduct of any party, authority of the Court is lowered and sense of confidence which people have, in administration of justice, is weakened.

Brahma Prakash v. State of U.P. AIR 1954 SC 10; Helmore v. Smith (No.2) (1886) 35 Ch.D 449 and Attorney-General v. Times Newspapers Ltd. (1974) AC 273 ref.

(d) Contempt of Court--

---- Purpose of contempt proceedings---Law of Contempt of Court---Basis--Law on contempt of Court was founded entirely on public policy---Said law was not to protect private rights of parties to litigation or prosecution but was to prevent interference with administration of justice and it should be limited to what was reasonably necessary for that purpose---Purpose of contempt proceedings was too well-known: No personal consideration would weigh with Judge, but it was for administration of justice, which was supreme that contemner was punished and purpose of punishment was to make known to all, however, low or high he might be that they had to obey and respect law without any excuse and exception.

Attorney-General v. Times Newspapers Ltd. (1973) 3 All ER 54 and Syed Aftab Ejaz v. State PLD 1978 Lah. 361 ref.

(e) Contempt of Court Act (LXIV of 1976)---

----S. 8---Contempt of Court---Allegation against accused was that he made a telephonic statement to Police Officer mentioning therein 'that various important files of Supreme Court had been removed from office of Supreme Court Branch Registry and that he named three High Court Judges and asked the Police Officer for lodging F.I.R. regarding the said occurrence---Police Officer who did not lodge F.I.R. .placed the report in that respect before the Chief Justice of the High Court---Chief Justice of the High Court ordered that matter be placed before the Judge of the Court (who was also named by the accused) to proceed with the matter according to law---After completion of necessary mandatory formalities trial was conducted and on having been found guilty for commission of contempt of the Court, accused was sentenced to undergo simple imprisonment for six months and to pay fine--Cognizance of case having initially been taken by Chief Justice, contempt proceedings could have only been initiated by the Bench comprising of two Judges as contemplated by S.8(5) of Contempt of Court Act,, 1976--Cognizance of matter having initially been taken by Chief Justice, it was mandatory for the Chief Justice to constitute a Bench comprising of two Senior Judges---Single Judge, to whom matter was referred by the Chief Justice to proceed with contempt proceedings, was not competent to proceed with the contempt proceedings---Judgment against accused having been incompetently passed, was set side and accused was acquitted of the charge.

(f) Interpretation of statutes---

---- Principle of "casus omissus"---Applicability---Scope---Language of a statute should be interpreted in its plain grammatical sense---Words should be taken in their natural, liberal or grammatical sense and words would admit of only one meaning, language should be taken as decisive of intention of Legislature and should not be departed from even it would produce some hardship---When words used were elastic or vague, words should be taken in the sense in which they would harmonize with the subject of enactment and the object which Legislature had in view---Principle of "casus omissus" should not be pressed into service and there -should be no wrong interpretation on basis of speculation or probability---Court of law was not authorised to apply principle of "casus omissus" or to alter language of a statute for purpose of supplying a meaning.

Amrit Bazar Patrika 45 IC 338; In re: Tarit Kanti AIR 1918 Cal. 988; Medhava Singh AIR 1923 Pat. 185; In re: An Advocate of Allahabad AIR 1935 All. 1; In re: K.L. Gauba AIR 1942 Lah. 105; Sukhdev Singh v. Teja Singh AIR 1954 SC 186; Ashfaq Ahmad Sheikh v. State PLD 1972 SC 39; State v. Mujibur Rehman PLD 1973 Lah. 1; Muhammad Hassan Khan v. Narain AIR 1949 All. 210; Rulia Ram v. Rex AIR 1949 All. 716; Bhagwati Prasad v. Sham Chander AIR 1949 All. 68; Manohar Das v. Golam AIR 1949 Cal. 225; Municipal Board, Mathura v. Dr. Radha Bullabh AIR 1949 All. 301; Humayun Mirza v. Governor of U.P. AIR 1949 Oudh 31; Gangaram v. Santosh Kumar (1949) 248; Noakes v. Doncastler Amalgamated Collieries 1940 AC 1014; AIR 1957 SC 832 + AIR 1953 SC 148; London Rubber Co. Ltd. v. Durex Products Ltd. AIR 1963 SC 1882; (1964) 2 SCR 211; Nairan v. University of St. Andrews 1909 AC 147; 78 UPC 54; Pentiah v. Veeramallappa AIR 1961 SC 1107; (1961) 2 SCR 295; Sea Ford Court Estates Ltd. v. Asher (1949) 2 All ER 115; Sagoon Jayadee v. Sociedade Civil Edos Taris AIR 1966 Goa 38; Big Insurance Co. v. Itbar Singh (1960) SO 44; AIR 1959 SC 1331; Shri Ram Ram Narain v. State of Bombay (1957) SO 679; AIR 1959 SC 459; Mahadeolal Khodia v. Administrator-General of W.B. AIR 1960 SC 936; Inland Revenue Commissioner v. Hinchy 1960 AC 748; Poppalal Shah v. State of Madras AIR 1953 SC 274; (1953) SO 369; Hira Devi v. District Board of Shahjahanpur (1952) SO 533; AIR 1952 SC 362; Tirath Singh v. Bachittap Singh AIR 1955 SC 830; (1955) SO 797 and Halsbury's Laws of England, 3rd Edn., Vo1.36, p.390 ref.

Appellant in person.

Noor Muhammad Achakzai, Addl. A.-G. for the State

Date of hearing: 3rd April, 2000.

PCRLJ 2000 QUETTA HIGH COURT BALOCHISTAN 1665 #

2000 P Cr. L J 1665

[Quetta]

Before Javed Iqbal, CJ. and Aman Ullah Khan Yasinzai, J

ABDULLAH KHAN and 2 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.241 and Criminal Revision No. 142 of 1999, decided ot7 19th April, 2000.

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

----S. 302/337-A(i)---Appreciation of evidence---Complainant in his deposition stood firm to his earlier stand and proved contents of his Fard-e-Biyan---Statement of complainant had further been corroborated by prosecution witnesses who were present nearly and attracted to scene of occurrence---Ail witnesses were put to lengthy cross-examination but intrinsic value of their evidence could not be shaken and they had satisfactorily explained their presence at place of occurrence---Both deceased and complainant had received multiple injuries with blunt weapon and that fact had been supported by medical certificate produced by prosecution witnesses---All accused persons jointly started giving Danda blows to deceased and the complainant and nothing was on record to suggest that any one of the accused had not participated in commission of offence---Trial Court, in circumstances, had rightly found that accused in furtherance of their common intention had attacked deceased and complainant and common intention developed at the spur of the moment---Contention of accused that element of common intention was lacking in the case, had no force---Nothing was on record to show that complainant and accused had any enmity with each other---All witnesses had satisfactorily explained their presence at place of incident and accused themselves had not denied their presence at that place---Contention of accused that prosecution witnesses were interested and they had motive to falsely implicate them, was repelled, in circumstances-Mere relationship of witnesses with complainant or deceased, would not make them interested witnesses when nothing was on record that they had motive to falsely implicate accused in commission of offence---Delay in lodging the F.I.R. had fully been explained, even otherwise such delay was not fatal to prosecution case when the incident had not been denied by the, accused---Medical Report had supported prosecution case---Prosecution having fully proved case against accused, their conviction was upheld, but facts and circumstances having proved that accused had not come with the intention to do away with the deceased but they had come simply to teach lesson to deceased and complainant by attacking them with Dandas, conviction and sentence of accused were altered from S.302(b), P.P.C. to S.302 (c), P.P.C. and sentence of life imprisonment was reduced to that of 10 years.

Muhammad Akbar and 2 others v. The State PLD 1991 SC 923; Sharafat Ali v. The State 1999 SCMR 329 and Muhammad Tariq and others v. State 2000 PCr.LJ 47 ref.

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

----S. 302/337-A(2)---Common intention---Element of common intention could be judged from the manner of incident and circumstances connected therewith because incident could not be pre-planned, but common intention could develop at spur of the moment during commission of offence.

----S. 302/337-A(i)---Appreciation of evidence---Statement of a witness who was interested could not be denied or considered unreliable---Relationship of witness with deceased by itself was not valid ground for discarding or rejecting testimony of such a witness---Obligatory upon Court to scrutinize statement of such witness with care and caution and if on proper scrutiny, evidence of such a witness was found to be intrinsically reliable or inherently probable, then it was sufficient to base conviction on such evidence.

Syed Ayaz Zahoor for Appellants.

Nasrullah Khan Achakzai for Respondents.

Date of hearing: 27th March, 2000.

PCRLJ 2000 QUETTA HIGH COURT BALOCHISTAN 1702 #

2000 P Cr. L 1 1702

[Quetta]

Before Javed 1qbal, C. J. and Aman Ullah Khan Yasinzai, J

HAJI RAZ MUHAMMAD and 9 others---Petitioners

versus

DISTRICT MAGISTRATE, QUETTA ---Respondent

Constitutional Petition No.58 of 2000, decided on 8th March, 2000.

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

----S. 133---Public nuisance---Removal of obstructions on public passage--General or unconditional nature of removal of such obstructions---General or unconditional order for removal of obstructions could not be made and the same should not be vague, indefinite or ambiguous---Order under S.133, Cr.P:C. should be such as to afford by its terms to the persons to whom it was directed as to what that person was to do in order to comply with the same---Order passed under S.133, Cr.P.C. must be conditional and not absolute in first instance.

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

----Ss. 133, 134 & 137---Public nuisance---Removal of obstructions on public passage---Passing of an absolute order---Such order could not be made in absence of person affected, without resorting to provisions of Ss. 134 & 137, Cr.P.C.

PLD 1981 Azad J&K 7 ref.

----Ss. 133, 134, \ 135, 136 & 137---Public nuisance---Removal of obstructions on public passage---Order passed under S.133, Cr.P.C. by District Magistrate---Making such conditional order as absolute--Opportunity of hearing to affected party---Scope---If procedure contained under Ss. 134, 135, 136 & 137, Cr.P.C. was followed only then order passed under S.133, Cr.P.C. could be made absolute---Before converting conditional order into an absolute one, proper opportunity of hearing was to be afforded to the party affected and District Magistrate was bound to hear his objections---Where circumstances so justify, conditional order could be made absolute, in the absence of the affected party.

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

----S. 133---Public nuisance---Notice for removal of obstructions on public passage---Recording of evidence prior to issuance of such notice ---Validity--Recording of evidence prior to issuance of such notice was not mandatory--Jurisdiction under S.133, Cr.P.C. being a special jurisdiction,. must not be exercised in a mechanical manner and the same must be exercised with all possible fairness and reasonable precautions.

AIR 1931 All. 257 and 32 Cr.l.l 565 ref.

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

----S. 133---Expression "or other information" used in S.133, Cr.P.C.--Connotation---Passing of order under S.133, Cr.P.C. by District Magistrate not on police report---Validity---Words "or other information" appearing in S.133, Cr.P.C. are capable enough to meet all sorts of such eventualities and simultaneously permit a Magistrate to take action under S.133, Cr.P.C. on information derived from any source in another capacity in circumstances.

AIR 1917 Cal. 207 and 17.Cr.LJ 409 ref.

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

----S. 133---"Public nuisance"---Connotation---Any encroachment, however, small, on a public road must inevitably result in obstruction to persons who may have occasion to use such road, and is, therefore, a public nuisance.

AIR 1927 Pat. 285 and AIR 1925 Lah. 454 ref.

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

----S. 133---"Sic uteri tuo ut allenum non-laedas"---Meaning and applicability---Public nuisance---Maxim means "so use your own property as not to injure the rights of another"---Use of private property may give rise to a public nuisance to those who are living in the same vicinity.

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

----S. 133---Constitution of Pakistan (1973), Art.199---Constitutional petition---Public nuisance, notice of---Failure to provide any opportunity to affected persons---Petitioners were served with notices to remove their show rooms as the same were allegedly causing obstruction in the normal flow of traffic---Authority did not provide any opportunity of hearing to the petitioners and an absolute order was passed under S.133, Cr.P.C.--Validity---Act or omission which caused injury, danger of annoyance was one of fact,. the same was dependent upon the circumstances of each case and no yardstick could be fixed for the same---Issuance of conditional order was a must before it could be made absolute---High Court by treating the show-cause notices issued by the Authority as conditional notice and directed to show cause accordingly.

1995 PCr.LJ 391; PLD 1962 (W.P.) Lah. 468; 1998 PCr.LJ 1457; 1998 SCMR 1616; 1972 SCMR 395; 1973 PCr.1J 26; PLD 1957 (W.P.) 854; PLD 1997 SC 342; PLD 1985 Lah. 353; AIR 1914 All. 341; 37 All. 9; 7 Cal. Rep.. 272 and AIR 1930 Cal. 757 ref.

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

----S. 133---Public nuisance, removal of---Procedure detailed.

AIR 1930 Cal. 757 quoted.

K.N. Kohli and Mohsin Javed for Petitioners.

Ghulam Mustafa Mengal, Asstt. A.-G. for Respondent:

Date of hearing: 8th March, 2000.

Supreme Court Azad Kashmir

PCRLJ 2000 SUPREME COURT AZAD KASHMIR 580 #

2000 P Cr. L J 580

[Shariat Court (AJ&K)]

Before Sardar Muhammad Nawaz Khan, J

MIR DAD KHAN---Petitioner

versus

ZAHAIR SHAH and .3 others---Respondents

Criminal Revision No.83 of 1998, decided on 27th March, 1999.

Criminal Procedure Code (V of 1898)---

----Ss. 169, 173 & 439---Penal Code (X.LV of 1860), S.324/341/506--Discharge of accused after investigation---Re-investigation of case---Police on report of petitioner/complainant entered F.I.R. and after investigation submitted report under 5.173, Cr.P.C. before Court stating therein that F.I.R. lodged on behalf of petitioner complainant was false---Court concurred on said police report, closed the case and discharged the accused--Police thereafter on direction of higher Authorities again submitted challan in the case and requested same Court to proceed with the case, but Court refused to take cognizance on ground that it had no jurisdiction to review its previous order---Said order of Trial Court was assailed by petitioner/ complainant in revision---Validity---First report submitted by police before Court was police, report under S.173, Cr.P.C. and not under 5.169, Cr.P.C.---Police if felt expedient to re-investigate the case, right course was to get discharge order passed by Trial Court set aside or seek permission of Court to re-open case, but same had not been done---After discharging accused on earlier police report under S.173, Cr.P.C. wherein case against accused was declared to be false by police, Court of competent jurisdiction had rightly refused to take cognizance of the case on a subsequent police report---Such order of Court could not be interfered with in revision.

1990 PCr.LJ 967; PLD 1987 SC 13; 1991 PCr.LJ 1755 and PLD 1985 SC 62 ref.

Sardar Suleman Khan for Petitioner.

Sardar Abdul Hamid Khan for Respondents Nos. l to 3. A.A.-G. (P.P.) for the State.

Date of hearing: 16th March, 1999.

PCRLJ 2000 SUPREME COURT AZAD KASHMIR 602 #

2000 P Cr. L J 602

[Shariat Court (AJ&K)]

Before Khawaja Muhammad Saeed, C.J. and Sardar Muhammad Nawaz Khan, J

STATE THROUGH MUZAFFAR HUSSAIN SHAH---Petitioner

versus

MUHAMMAD NAZIR and another---Respondents

Criminal Reference No.80 of 1986, decided on 30th April, 1999.

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

----S. 154---F.I.R., nature 'and recording of ---F.I.R. is simply an information for commission of an offence to move the concerned agency--Not essential for complainant to give all details regarding commission of offence in F.I.R.

(b) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)---

----Ss. 4 & 5---Appreciation of evidence---Accused were nominated in F.I.R. lodged without any delay and role of accused was very clearly shown therein---Version given by complainant in F.I.R. was corroborated by direct evidence of independent, impartial and reliable witnesses who had no rivalry or enmity against accused and no reason was shown to discredit their testimony---Ocular evidence was also corroborated by circumstantial evidence in shape of post-mortem report and recovery of weapon of offence at the instance of accused---No enmity 'or rivalry existed between complainant party and accused prior to commission of murder of deceased except minor dispute over construction of house of deceased by accused--Motive had also been proved by direct evidence---Evidence on record, in circumstances, had proved accused guilty of offence with which they were charged---Accused remained in custody for couple of years after their arrest and faced trial for about thirteen years---Capital punishment awarded to accused was converted into life imprisonment by extending them benefit of S.382-B, Cr.P.C.

PLD 1964 SC 710; PLD 1977 SC 16; PLD 1969 SC 127; 1991 PCr.LJ 740; 1990 PCr.LJ 176; 1993 SCMR 336; 1998 SCMR 1749; 1998 SCMR 25 and 1992 SCR 120-A ref.

----Ss. 4 & 5---Appreciation of evidence---Evidence of close relatives--Admissibility---Evidence of close relatives was acceptable unless some enmity or rivalry was shown to have existed between witnesses and accused party prior to incident---Mere relationship could not form basis to discredit testimony of said witnesses especially when deteriorating law and order situation in present society did not allow an independent witness to come forward and only kiths and kins of deceased being aggrieved persons, could dare to appear as witness.

(d) Criminal trial---

----Motive---Motive is always best known to assailant and it is he who knows what prompted him to commit crime.

(e) Administration of justice---

----Criminal cases were always decided in the light of their peculiar facts as coincidence of facts in criminal matters, was hardly possible.

Abdur Rashid Kamahi, Asstt. A.-G. for the State. Raja Sher Muhammad Khan for Respondents. Sardar Rafique Mahmood Khan for the Complainant.

Date of hearing: 30th April, 1999.

PCRLJ 2000 SUPREME COURT AZAD KASHMIR 967 #

2000 P Cr. L J 967

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

HABIB BANK LIMITED through Manager---Appellant

versus

ZULFIQAR ALI MALIK and 2 others---Respondents

Criminal Appeal No. 12 of 1999, decided on 3rd December, 1999.

(On appeal from the orders of the High Court, dated 13-3-1997 and 12-2-1999 in Criminal Revision No. Nil and Criminal Revision No.5 of 1997, respectively).

Penal Code (XLV of 1860)---

----S. 467/468/471/419/420---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), Ss.2 & 4---Criminal Procedure Code (V of 1898), Ss.403(1) & 417---Appeal against acquittal---High Court had given the verdict that case against accused had not been proved. in view of the incoherence and contradictions appearing in the prosecution case but did not point out or discuss any such incoherence and contradictions and as such the order passed by High Court was not sustainable---Provision of S.403(t), Cr.P.C. barring retrial of accused for the same offence could be attracted only where he had been tried by a Court of competent jurisdiction--Magistrate in the instant case being not competent to try. the accused in respect of the scheduled offences mentioned in the Offences in Respect of Banks (Special Courts) Ordinance, 1984 which had been adapted in Azad Jammu and Kashmir, his order of acquittal recorded in favour of accused and upheld by High Court could not exonerate him to be tried by a Court of competent jurisdiction---Impugned orders acquitting the accused were set aside accordingly and the case was remanded to Special Court for retrial in accordance with law.

Muhammad Abdullah v. Ghulam Hussain and 5 others 1992 PCr.LJ 1681; Asim Iqbal v. President, Summary Military Court PLD 1978 Quetta 97 and Haji Wali Muhammad and another v. State and another PLD 1978 Quetta 114 ref.

Kh. Ali Muhammad, Advocate for Appellant. M. Riaz Tabassunl, Advocate for Respondent No. 1.

Date of hearing: 24th November, 1999.

PCRLJ 2000 SUPREME COURT AZAD KASHMIR 974 #

2000 P Cr. L J 974

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

KHADIM HUSSAIN and 5 others---Appellants

versus

SHER AFZAL and another---Respondents

Criminal Appeal No. 12 of 1999, decided on 11th November, 1999.

(On appeal from the judgment of the Shariat Court, dated 30-6-1999 in Criminal Appeals Nos. 15 and 18 of 1999).

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.149---Bail---Unlawful assembly--Vicarious liability---Determination of---Rule that question of vicarious liability could not be determined at the stage of bail was not inflexible---If in the circumstances of the case it could be gathered that the accused had preplanned a scheme, hatched 'a conspiracy and in execution of that plan or conspiracy they participated in the commission of offence, question of vicarious liability would apply with full force---Such question of application of vicarious liability, however, had to be ascertained cautiously without entering into detailed scrutiny and appreciation of merits of the case of the prosecution---For application of S.149, P.P.C. .it was necessary that one should be a member of an unlawful assembly; that in prosecution of common object of that assembly, the offence should be committed by a member of an unlawful assembly and that the offence should be of such a nature that the members of that assembly knew that offence was likely to be committed in prosecution of their common object.

Sardar Rafique Mahmood Khan, Advocate for Appellants. Kh. Shahad Ahmad, Advocate for Respondent No. 1. Raja Shiraz Kayani, Advocate-General for the State.

Dates of hearing: 8th October and 3rd November, 1999.

PCRLJ 2000 SUPREME COURT AZAD KASHMIR 980 #

2000 P Cr. L J 980

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

BABAR HUSSAIN---Appellant

versus

MUHAMMAD RASHID KHAN and another---Respondents , Criminal Appeal No. 10 of 1999, decided, on 15th November, 1999.

(On appeal from the judgment of the Shariat Court, dated 5-6-1999 in Criminal Appeal No.41 of 1998).

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

----S. 497---Benefit of doubt---Benefit of doubt. would go to the accused even at bail stage.

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

----S. 497---Bail, grant of---Accused was held entitled to bail at time when evidence had not yet commenced---If during trial any incriminating material against accused came on record, Trial Court would be free to consider question of. bail, if so moved, in the light of fresh material.

Sardar Rafique Mahmood Khan, Advocate for Appellant.

Sardar Muhammad Hussain Khan, Advocate for Respondent No. 1. Raja Shiraz Kayani, Advocate-General for Respondent No.2.

Date of hearing: 4th November, 1999..

PCRLJ 2000 SUPREME COURT AZAD KASHMIR 984 #

2000 P Cr. L J 984

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Basharat Ahmad Shaikh, J

MALIK MUHAMMAD YASIN---Appellant

versus

RAJA MUHAMMAD YOUSAF and 4 others---Respondents

Criminal Revision No. 21 of 1999, decided. on 15th November, 1999.

(On appeal from the order of the Shariat Court, dated 7-4-1999 in Criminal Revision No.38 of 1995).

Criminal Procedure Code (V of 1898)---

----Ss. 423 & 439---Azad. Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S.25---Dismissal of revision for non-prosecution---Accused persons filed application, during trial, alleging that they had been tortuied by police and first informant---Trial Court appointed Sub-Judge-cum-Magistrate to hold inquiry into allegations of torture---Said order of Trial Court was challenged by complainant party by filing revision petition in Shariat Court, ' which petition was dismissed for non-prosecution---Said dismissal order had been sought to be annulled on ground that criminal matter had to be decided on merits and that there was no concept of dismissal for non-prosecution in Code of Criminal Procedure--Rule that ."once a criminal appeal was admitted it must be decided on merits and could not be dismissed for non-prosecution", only related to appeal and not to revision---No appeal before Shariat Court was filed rather a revision petition had been filed which did not relate to guilt or innocence of any person but, was filed to challenge order by which an inquiry had been order ---Principles applicable to disposal of an appeal were not applicable to revision petition and criminal revision could be dismissed for non-prosecution.

Muhammad Ashiq Faqir v. The State PLD 1970 SC 177 and Ramautar Thakur and others v. State of Bihar AIR 1957 Pat. 33 ref.

Raja Muhammad Hanif Khan, Advocate for Appellant. ;

Raja Shiraz Kayani, Advocate-General for Respondents.

Date of hearing: 8th November, 1999.

PCRLJ 2000 SUPREME COURT AZAD KASHMIR 987 #

2000 P Cr. L J 987

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

MUHAMMAD ANWAR BAIG---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 14 of 1999, decided on 12th November, 1999.

(On appeal from the judgment of the High Court, dated 3-5-1999 in Criminal Appeal No. l of 1995).

(a) Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984)---

----S. 6(2) & Sched.II---Criminal Procedure Code (V of 1898), S. 417--Penal Code (XLV of 1860) Ss.409/419/420/467 & 468---Appeal against acquittal---Transfer of case to Special Court---High Court, on appeal against acquittal of accused, set aside order of acquittal and remanded case to Special Court constituted under Offences in Respect of Banks (Special Courts) Ordinance, 1984---Validity---Case against accused was registered in 1977 when neither the said Ordinance was in force nor any Special Court was constituted---Punishment for some of the offences mentioned in Sched. II to the said Ordinance, under which accused had been charged had been enhanced and some other substantive charges had also been made--Provisions of said Ordinance were not merely of procedural nature justifying trial by Special Court, but were of substantive nature and were harsher than provisions of ordinary law---High Court, in circumstances, was not legally correct in remanding case to Special Court when some of the provisions' thereof were much stringent than ordinary law.

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

----S. 42---Offences in Respect of Banks (Special Courts) Ordinance (IX of 1984), S.6(2) & Sched. II---Penal Code (XLV of 1860), Ss.409/419/420/467 & 468---Transfer of case to Special Court---Validity---Accused, who had challenged order of High Court whereby case was remanded to Special Court constituted under Offences in Respect of Banks (Special Courts) Ordinance, 1'984, had contended that in case his contention that High Court was not justified in remanding case to Special Court, was. accepted by Supreme Court, accused could be acquitted by Supreme Court instead of remanding matter to the High Court for decision on merits---Contention of accused was repelled on the ground that appeal to Supreme Court having been preferred by leave, Supreme Court would not decide matter in absence of findings of High Court on the matter one way or the other.

Prof. Syed Sadiq Hussain Shah v. Azad Government 1997 PCr.LJ 1837; Karam Hussain v. Basharat Hussain PLD 1991 SC (AJ&K) 27; Muhammad Alam v. The State PLD 1967 SC 259; Referring Authority/Chief Secretary, Azad Government of the State of Jammu and Kashmir v. Sardar Sikandar Hayat Khan PLD 1982 SC (AJ&K) 112 and Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 ref.

Muhammad Sayab Khalid, Advocate for Appellant.

Raja Shiraz Kayani, Advocate-General for the State.

Date of hearing: 3rd November, 1999.

PCRLJ 2000 SUPREME COURT AZAD KASHMIR 1071 #

2000 P Cr. L J 1071

[Shariat Court (AJ&K)]

Before Khawaja Muhammad Saeed, CJ. and Iftikhar Hussain Butt, J

ABDUL GHAFFAR and others---Appellants

versus

THE STATE and others---Respondents

Criminal Appeals Nos.30, 31 and 32 of 1995, decided on 18th February,. 2000.

(a) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX. of 1974)----

----S. 4/5---Appreciation of evidence ---Eye-witnesses were not only related to the deceased, but they were also inimical towards the accused party and their evidence was not corroborated by any independent evidence of unimpeachable character---Circumstantial evidence also did not, support the prosecution version rather it was in direct conflict with the same---Despite the presence of a large number of people no respectable person of the locality was associated with the recovery proceedings---Both the crime empties according to the Report of Forensic Science Laboratory had been fired from the gun allegedly recovered from the accused which was not the prosecution case---Prosecution evidence was not consistent about the place of occurrence which fact was not explained by prosecution---Ocular testimony was not in consonance with medical evidence---Eye-witnesses did not appear to have actually seen the incident and they could not be relied upon a capital charge had even exaggerated their evidence to the extent of implicating five innocent persons in the case who had been acquitted by the Trial Court---Motive set up by the prosecution was fake and fabricated---Ocular evidence being replete with . material contradictions, discrepancies and inconsistencies was incredible and unreliable and absence of motive in such a situation had assumed importance---Accused was acquitted in circumstances.

PLD 1963 SC 17; PLD 1963 SC 25; PLD 1963 Kai. 92; PLD 1964 Kar. 428; PLD 1976 Kar. 438; PLD 1979 SC (AJ&K) 23; PLD 1979 SC (AJ&K) 44;1980 PCr.LJ 749; PLD 1983 SC (AJ&K) 211; NLR 1984 (Criminal) 578; 1986 PCr.LJ 877; PLD 1987 Sh.C. (AJ&K) 47; 1996 PCr. LJ 1076; 1996 PCr. LJ 1522 and 1997 PCr. LJ 1865 ref.

(b) Azad Jammu and Kashmir Islamic Penal Laws (Enforcement) Act

----Ss. 4 & 5---Appreciation of evidence---When prosecution witnesses are discredited in respect of majority of accused, it will not be safe to believe their evidence in respect of remaining accused unless the same is corroborated by some independent source.

PLD 1976 Kar. 438 ref.

Abdul Majeed Mallick for Appellants (in Criminal Appeal No.30 of 1995 and other accused-Respondents).

Ch. Muhammad Afzal for the Complainant.

Syed Ejaz Ali Gillani, Asstt. A.-G. for the State.

PCRLJ 2000 SUPREME COURT AZAD KASHMIR 1105 #

2000 P Cr. L J 1105

[Supreme Court (AJ&K)]

Before Syed Manzoor Hussain Gilani, J

THE STATE through Ehtesab Cell----Petitioner

Versus

ZAHIRUD DIN and 8 others----Respondents

Criminal Reference No. 93 of 1999, decided on 1st March, 2000.

(a) Criminal trial--

Criminal Liability stems from criminal intention not by presumptions or analogies to be drawn from circumstances. Unless the case wholly rests on the circumstantial evidence

(b) Criminal trial----

----Mens rea---Criminal intention---Criminal intention is the basis for criminal implication which is to be proved by the prosecution by placing on record the, evidence that the accused knew that what they were doing was illegal or that it was, done 'A" dishonesty and in ' a deceitful manner.

---S ¾---Penal Code (XLV of 1860) S.408/409/467/468/471--- Prevention of Corruption Act (II of 1947) S.5(2) ---Appreciation of evidence Record did not show any intention on the part of accused (civil servants) trainees to have received the amount ,from Training Academic willfully knowing that ,the same was .their pay and ,they were not entitled thereto prosecution case suffered from its own inherent fallacies and contradictions---No criminal case, for reference under the Ehtesab Act,. 1997, against the accused was made out---Departmental Authority had not treated the action of accused as illegal 'and ordered ,them to refund the excess amount which they had refunded before the Reference was foiled and their pay was released and No. Objection Certificate was issued in their favour Accused.

having refunded the entire amount received from the Training Academy before the commencement of the trial, had rectified the mistake committed in misunderstanding or misconception of facts---Refund having been completed before the commencement of the trial, S.18 of the Ehtesab Act, 1997 was not attracted---Matter if considered dispassionately could not have resulted in present proceedings where young Officers in the beginning of their career on account of a contributory mistake or irregularity committed by. them and various Departments of the Government in misperceiving facts or Service Rules, had committed an error for which the accused alone had been stigmatized---Accused could not be condemned as guilty for a trifling amount when they had not acted dishonestly or corruptly---Case appeared to be of over or excess payment credited by the Academy to the accounts of accused and used by them in a bona fide mistaken belief treating it as training allowance or expenses, which belief had also been supported by their appointment order---Voluntary admission of facts constituting the offences was not sufficient to convict the accused for the offences charged for, as the admission or the confession had to be read as a whole in the light of connected facts and circumstances of the case---Accused were acquitted of all the charges levelled against them in circumstances.

Chief Secretary/Referring Authority v. Sardar Muhammad Abdul Qayyum Khan PLD 1983 Azad J&K 95; Sardar Khan Bahadur Khan v. Chief Secretary and others PLD 1983 Azad J&K 199 and Ghulam Nabi Salim Chishti v. The State and others 1997 MLD 2041 ref.

Khawaja Atta Ullah, Special Prosecutor for the State.

Ghufam Mustafa Mughal for Accused/Respondents.

PCRLJ 2000 SUPREME COURT AZAD KASHMIR 1484 #

2000 P Cr. L J 1484

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

Criminal Appeal No. 19 of 1999

MUHAMMAD AJAIB---Appellant

versus

MEHBOOB KHAN and another---Respondents

(On appeal from the judgment of the Shariat Court, dated 26-7-1999 announced on 2-8-1999 in Criminal Appeal No.21 of 1997).

Criminal Appeal No.21 of 1999

STATE---Appellant

versus

MUHAMMAD AJAIB and 5 others---Respondents

(On appeal from the judgment of the Shariat Court, dated 26-7-1999 announced on 2-8-1999 in Criminal Appeal No.21 of 1997).

Criminal Appeals Nos. 19 and 21 of 1999, decided on 22nd March, 2000.

(a) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)--

----S. 5/15---Criminal Procedure Code (V of 1898), S.154---Appreciation of evidence---Delay in lodging the F.I.R. in absence of any allegation of substitution or concoction was not fatal to the prosecution case ---Eyewitnesses though closely related to the deceased had no motive for false implication of accused and they had unanimously charged him for the murder of the deceased---Presence of accused at the scene of occurrence was not seriously disputed by the defence---Accused had no right of self-defence or defence of his property---Prosecution version having been substantiated on material particulars, minor discrepancies, contradictions and improvements were to be ignored---Ocular evidence was corroborated by medical evidence as well as the evidence of Ballistic Expert and the report of Serologist--Motive set up by the prosecution had fully supported its version--Prosecution version when put in juxtaposition with defence version seemed to be more probable, natural and truthful---Conviction and sentence of accused were upheld in circumstances.

Muhammad Sharif v. The State PLD 1978 SC (AJ&K) 146 ref.

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

----S. 302---Appreciation of evidence---Interested witnesses---Testimony of interested witnesses can be relied upon without corroboration if it seems to be natural, convincing and truthful.

----S. 302---Appreciation of evidence---Disbelief of ocular evidence in respect of some of the accused cannot lead to discarding of entire evidence---Grain has to be sifted from the chaff.

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

----S. 302---Appreciation of evidence---Interested witnesses--corroboration---Rule that statement of interested witness should be corroborated does not mean that it is false or untrue---What it really means is ;that to accept the statement of an interested witness as wholly true it is desirable that it should have a confirmatory support.

(e) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)---

----S. 5/15---Penal Code (XLV of 1860), S.341/147/148/149---Appeal against acquittal---Accused had not caused any injury to the deceased and they were found injured during the incident---Benefit of doubt extended to the accused by Trial Court and upheld by Shariat Court appeared to be based on cogent reasons---Prosecution had failed to prove its case against accused beyond any reasonable doubt---Appeal filed by State against acquittal of accused was dismissed accordingly.

Sher Zaman Chaudhry, Advocate for Appellant (in Criminal Appeal No. 19 of 1999).

Abdul Majid Mallick, Advocate for Respondent No. l/Complainant (in Criminal Appeal. No.19 of 1999).

Ch. Muhammad Mushtaq, Addl. A.-G. for the State (in Criminal` Appeal No. 19 of 1999).

Ch. Muhammad Mushtaq, Addl. A.-G. for the State (in Criminal Appeal No.21 of 1999).

Sher Zaman Chaudhry, Advocate for Respondents Nos. l to 5 (in Criminal Appeal No.21 of 1999).

Abdul Majid Mallick, Advocate for Respondent No.6/Complainant (in Criminal Appeal No.21 of 1999).

Dates of hearing: 23rd to 25th February, 2000.

PCRLJ 2000 SUPREME COURT AZAD KASHMIR 1680 #

2000 P Cr. L J 1680

[Shariat Court (AJK)]

Before Sardar Muhammad Nawaz Khan, J

MUHAMMAD FAROOQ---Petitioner

versus

MUHAMMAD AFZAL and another---Respondents

Criminal Appeal No.21 of 1999, decided on 1st February, 2000.

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

----S. 417---Penal Code (XLV of 1860), S.302---Appeal against acquittal--Person competent to file such appeal---Acquittal order could be challenged by the State, complainant or any aggrieved party, but complainant who was simply an informant on whose information investigation was set in motion and who did not come under definition of "Wali" was not competent to file appeal against acquittal order.

Muhammad Kabir v. Shah Alam and others PLJ 1999 Sh.C. (AJ&K) 141 ref.

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

----Ss. 439 & 497---Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S.25---Penal Code (XLV of 1860), 5.302---Revision against order granting bail---Competence---Maintainability of revision petition against bail granting order was objected to by accused contending that revision petition filed by a person who was simply an informant and did not himself qualify to be an aggrieved person was not maintainable---Validity---Order grating bail being interim order was open to challenge through a revision petition as provided under S.25 of Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act, 1974 and High Court under S.439, Cr.P.C. was competent to revise any order if it suffered for any illegality or defeated ends of justice---Section 439, Cr.P.C. had given inherent powers of revision to High Court and High Court was competent to undo any wrong even on application by any body or even without application by someone by taking suo motu notice if it was in the interest of justice--Revision petition filed by informant was, therefore, competent.

----Ss. 439 & 497---Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), S.25---Penal Code (XLV of 1860), S.302--Revision against bail granting order----Accused prima facie was linked with alleged offence---Accused was nominated in F.I.R. which was promptly filed and role of accused in occurrence was clear which stood supported by direct a pd circumstantial evidence---Case against accused was covered by prohibitory clause of S.497, Cr.P.C.---Grounds on which Trial Court allowed bail to accused were flimsy which did not justify bail granting order---Bail granting order was recalled and bail application of accused was rejected by High Court in exercise of its revisional jurisdiction.

Sardar Muhammad Sayyab Khalid for Petitioner.

Sardar Khan for Respondent No. 1. Asstt. A.-G. for the State.

Date of hearing: 1st February, 2000.

PCRLJ 2000 SUPREME COURT AZAD KASHMIR 1739 #

2000 P Cr. L 1 1739

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

MIRDAD KHAN---Appellant

versus

ZAHIR SHAH and 3 others---Respondents

Criminal Appeal No.7 of 1999, decided on 14th April, 2000.

(On appeal from the judgment of the Shariat Court, dated 27-3-1999 in Criminal Revision No.83 of 1998).

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

----Ss. 173, 6, 36, 37, 96 & 145---Order passed by Magistrate on. a report under S.173, Cr.P.C. was an administrative order and not a judicial one--Powers and duties of Magistrate---Diverse functions.

Magistrate under Code of Criminal Procedure had been entrusted with diverse duties and in discharging said duties he would not always function as a Court. Some of his powers and duties under Criminal Procedure Code were administrative, executive or ministerial to be discharged not as a Court; but as a persona designata. To constitute a Criminal Court it was not sufficient that it was one of the Courts mentioned in section 6, Criminal Procedure Code, 1898, but it must be acting as a Criminal Court. Magistrate; under Cr.P.C. was empowered to act judicially as well as in his administrative capacity. Fact that a Magistrate had to perform executive functions would not in itself debar him from acting as Court .as provided in section 6, Criminal Procedure Code, 1898. Departmental inquiry by a Magistrate under orders of Government was an executive act, while order by a Magistrate under section 96 or section 145 of Criminal Procedure Code, was a judicial order. When a Magistrate would concur with police report or refuse to agree with the same submitted under section 173, Cr.P.C., order passed on said proceedings by Magistrate would be an administrative order and not a judicial order.

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

----S. 173---Penal Code (YLV of 1860), S.324/341/506---Dismissal of criminal case---Re-investigation---Powers of Police---Police after necessary investigation submitted report under S.173, Cr.P.C. stating therein that F.I.R. in the case was false and was liable to be dismissed---Court below concurred with police report and consigned the file to record---Police, on direction of highups re-investigated the case and submitted challan and requested Court to proceed with the case, but Court refused to take cognizance of the case on ground that Court had no jurisdiction to review its previous order whereby case was closed and that police had no power to reinvestigate case thereafter---Validity---No ban was imposed to re-investigate the case by police even if police had submitted earlier report under S.173, Cr.P.C. disclosing fact to the Magistrate that no cognizable offence was made out against the accused---Police was fully competent to re-investigate and submit challan on basis of subsequent investigation---Power of police to re-investigate case was unlimited and there was no law precluding police front re-investigating the case---When on basis of any investigation or reinvestigation into a case, a report was submitted to Magistrate under S.173, Cr.P.C. Magistrate would not be expected to blindly follow investigation undertaken by police as ipse dixit of police was never binding on Magistrate or Court---Re-investigation by police could not be .stopped in a particular case---If police had been able to discover and lay its hand on some-material which could connect accused with commission of offences alleged against him, it should approach Court which had passed earlier order of agreeing with police report not to proceed against accused and place newly discovered material before Court and persuade the Court on strength of material placed before it---Court would be at liberty to look into subsequent report submitted under S.173, Cr.P.C.

Habib Bank Limited v. Zulfiqar Ali Malik 2000 PCr.LJ 967; Aftab Ahmed v. Hassan Arshad and 10 others PLD 1987 SC 13; Muhammad Akram and others v. The State and another 1986 MLD 2439; Mulazim Hussain v. S.H~O., Police Station Shorkot. District Jhang and 2 others 1995 PCr.LJ 440; Bahadur and another v. The State and another PLD 1985 SC 62; Basharat Ahmad Shaikh v. Azad Jammu and Kashmir Government PLD 1965 Azad J&K 43; Raban Shah v. Mirzaman and others PLD 1960 Azad J&K 29; Mst. Iqbal Begum v. The State 1991 PCr.LJ 1755: Muhammad Niwaz v. The Crown 1948 Cr.LJ 774; Muhammad Akbar v. The State and another 1972 SCMR 335; Alam Din v. The State PLD 1973 Lah. 304; Muhammad Akbar v. The State and another 1972 PCr.LJ 328; Haji Abdul Rehman v. Sultan and another 1971 PCr.LJ 1164 and Jameel Ahmed and 3 others v. The Superintendent of Police, Range Crime Branch, Rawalpindi .Division, Rawalpindi 1999 PCr.LJ 310 ref.

Raja Muhammad Hanif Khan, Advocate for Appellant.

Sardar Abdul Hamid Khan, Advocate for Respondents Nos. 1 to 3.

Raja Shiraz Kayani, Advocate-General for the State.

Date of hearing: 13th March, 2000.