PCRLJ 2001 Judgments

2001 P Cr. L J 385

[Chief Court (Gilgit)]

Before Muzaffar H. Malik, J

NAZIM and another---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No.15 of 2000, decided on 9th March, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302i 109/34, 306(a) & 308(1)--­Bail---Accused had sought bail mainly on the ground of minority---Both the accused had the appearance of youths of mid-teens as certified by (.he medical opinion and school leaving certificates showed them yet of more tender years---Accused were, thus, within statutory minority in terms of S.306, P.P.C. read with 5.299, P.P.C.---Contention was that in view of S.306(a), P.P.C. "Diyat" which was the primary punishment for the minor offenders would be deemed to be the only prescribed punishment for purposes of bail petitions of such offenders thereby taking their case out of the ambit of the prohibitory clause of S.497(1), Cr.P.C.---Provision of second proviso to S.308(1), P.P.C. had provided the sentence of imprisonment rising upto 14 years for the minor who was sufficiently mature at the time of committing Qatl-i-Amd so as to be able to realise the consequences of his act and it would be against the letter and spirit of this law to routinely treat all murders committed by statutory minors as cases of Diyat alone not falling within the prohibition contained in S.497(1), Cr.P.C.---Maturity of mind of accused when sufficient at the time of offence to realize the implications of his life destroying act, would be in criminology a materially sufficient circumstance in determining the mens rea and, therefore; the gravity of the act must, for that reason, receive corresponding consideration in dealing with bail matters as well---Minority per se would not have the effect of reducing the offence of murder to one liable to Diyat alone and taking it out of the prohibitory clause of S.497, Cf. P.C.---Accused in spite of their minority seemed sufficiently grown up in body and mind possessing more than their fair share of understanding and had made an unfair attempt to make the Court believe that the offence was indeed committed by callow youths of undeveloped minds who hardly had the mental capacity to understand the nature of their sanguinary act and realize its consequences in law---Bail was declined to accused in circumstances.

1996 PC r.LJ 166; 1997 PCr.LJ 1635 and 1998 PCr.LJ 24 disagreed.

Altaf Hussain for Petitioners.

Muhammad Yaqoob, A.-G. for the State.

Date of hearing: 9th March, 2000.

2001 P Cr. L J 47

[Federal Shariat Court]

Before Ali Muhammad Baloch, J

NAWAZ and 2 others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No: 23/K of 2000, decided on 9th September, 2000.

Penal Code (XLV of 1860)---

----S. 392/34---Appreciation of evidence---Enmity existed between the parties---Oral testimony of inimical prosecution witnesses required independent corroboration which was lacking---Private Mashirs were not associated with any recovery effected in the case---Prosecution witnesses had implicated one accused whose name was not even given in the F.I.R.--­Statements of witnesses recorded under 5.161, Cr.P.C. were neither available with the prosecution, nor the same were made available for the Court for perusal---Possibility of false involvement of accused in the case by the complainant party on account of their personal grudge could not be ruled out---Accused were acquitted on benefit of doubt accordingly keeping in view the principles of safe dispensation of criminal justice.

1996 P Cr. L J 426 ref.

Manzoor Ahmad Siddiqui for Appellants.

Suleman Habibullah for the State.

Date of hearing: 6th September, 2000.

2001 P Cr. L. J 72

[Federal Shariat Court]

Before Fazal Ilahi Khan, CJ., Dr. Fida Muhammad Khan, and Ch. Ejaz Yousuf JJ

MUHAMMAD AFZAL---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 53/K of 1999, decided on 7th June, 2000.

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

----S. 302---Appreciation of evidence---Crime weapon (pistol) was neither produced at the trial nor recovery thereof alongwith magazines was proved on the record---Recovery of the pistol in question alongwith magazines from the accused having not been put to him in his statement recorded under S.342, Cr.P.C., the same could not be taken as an incriminating piece of evidence against him---Trial Court, thus, had not adopted the mandatory procedure in the conduct of trial of accused and had based its judgment on considerations not borne on record---Impugned judgment was consequently set-aside and the case was remanded to Trial Court with the consent of the parties for its decision afresh in accordance with law keeping in view the directions of Federal Shariat Court.

Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 ref.

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

----S. 540---Penal Code (XLV of 1860), S.302---Power to summon material witness, not a step, towards filling of gaps---Such power is not only discretionary but obligatory---Where the Court considers the examination of a person/witness essential for just decision of the case, it would have no option but to summon and examine him and in such an eventuality action taken by Court under S.540, Cr.P.C. would not be termed or regarded as a step towards filling of gaps and question of prejudice to the accused would also not arise, because in doing so Court would be giving effect to a provision of law.

Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 ref.

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

----S. 342(1)---"Penal Code (XLV of 1860), S.302---Power to examine the accused---Examination of accused under S.342, Cr.P.C. is not a mere formality but a mandate to enable the accused to explain any circumstance appearing against him in the prosecution evidence.

Azizullah Sheikh for Appellant.

Raja Abdul Ghafoor for the State.

Date of hearing: 7th June, 2000.

2001 P Cr. L 186

[Federal Shariat Court]

Before Ch. Ejaz Yousuf, J

MUHAMMAD ALAM alias SHIN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 117/Q of 1999, decided on 5th May, 2000.

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

----S. 392---Appreciation of evidence ---F.I.R. was lodged against unknown persons ---Complainant did not identify the accused as a culprit at the trial---Only incriminating piece of evidence produced by the prosecution against the accused was the disclosure made by co-accused after his arrest whereby he informed the police that the accused was his companion in the commission of offence---Said disclosure could not form a basis for conviction of accused; because firstly any information received from an accused person while he was in custody could not be proved at the trial unless any fact was deposed to as discovered in consequence thereof, and secondly the disclosure was not a substantive piece of evidence---Accused was acquitted in circumstances.

Javed Masih and others v. The State PLD 1984 SC 314; The State v. Asfand Yar Wali and 2 others 1982 SCMR 321; The State v. Minhun alias Gul Hassan PLD 1964 SC 813; Muhammad Noor v. Member-I, Board of Revenue, Balochistan and others 1991 SCMR 643 and Qalb Abbas alias Nahola v. The State 1997 SCMR 290 ref.

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

----S. 392---Qanun-e-Shahadat (10 of 1984), Art. 43---Appreciation of evidence---Confession of co-accused---Confession made by co-accused though relevant under Art. 43 of the Qanun-e-Shahadat, 1984, alone cannot warrant conviction of an accused unless it is corroborated by any other reliable piece of evidence.

Javed Masih and others v. The State PLD 1984 SC 314; The State v. Asfand Yar Wali and 2 others 1982 SCMR 321. and The State v. Minhun alias Gul Hassan PLD 1964 SC 813 ref.

(c) Criminal trial---

---- Appreciation of evidence---Conviction cart be based only on substantive or direct evidence and not on any other type of evidence howsoever convincing it maybe.

Muhammad Noor v. Member-I, Board of Revenue, Balochistan and others 1991 SCMR 643 and Qalb Abbas alias Nahola v. The State 1997 SCMR 290 ref.

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

----Arts. 37, 38, 39 & 40---Information received, from accused while in police custody---Value---Confession made by accused, while in police custody, was not admissible---If, however, something related to the case was recovered or any fact was discovered in consequence of the information conveyed by the accused then the same would be admissible in evidence within the purview of Art. 40 of Qanun-e-Shahadar, 1984.

Naeem Akhtar for Appellant.

Sardar Zar-e-Iman for the State.

Date of hearing: 5th May, 2000.

2001 P Cr. L J 126

[Federal Shariat Court]

Before M. Mahboob Ahmed, C.J., Dr. Fida Muhammad Khan and Ch. Ejaz Yousuf, JJ

Ch. ABDUR REHMAN, ADVOCATE---Petitioner

Versus

FEDERAL GOVERNMENT OF PAKISTAN through Secretary, Justice and Law

Division, Islamabad---Respondent

Shariat Petition No. 10/L of 1995, decided on 26th January, 1999.

(a) Words and phrases-

----Company, "corporation", "firm" and "institution"---Defined.

Black's Law Dictionary 5th Edn., pp. 179, 224, 307, 308, 576; Bellin Tine's Law Dictionary pp. 232, 275, 476, 640 and Qanuni Lughat by Dr. Tanzeel-ur-Rahman, pp. 139, 162, 245, 297 ref.

(b) Drugs Act (XXXI of 1976)---

----S. 34---Penal Code (XLV of 1860), Ss. 34 to 38 & 109---Offences by companies etc. ---Companies or Corporations etc. though are distinct and separate legal entities from its employees yet it cannot be presumed that employees (hereof were not responsible for anything wrong done by them of offence committed under the Act---Different persons while sharing common intention, abetting or facilitating or cooperating with each other in prosecution of a common object with or without knowledge even, may be responsible for the offence.

(c) Drugs Act (XXXI of 1976)--

----S. 34---Constitution of Pakistan (1973), Art. 203-D---Repugnancy to Injunctions of Islam---Inclusion of term "employees" and shifting of onus to prove guilt in S.34 of Drugs Act, 1976 was not repugnant to Injunctions of Islam---Section 34 of the Drugs Act provides a shield against straightaway initiation of action against employees of a company or corporation etc. as before being found guilty, the employees were compulsorily required to be called upon to show that the offence had been committed by the company etc. without their knowledge or consent---Inclusion of word "employees" in the ambit of S.34, Drugs Act, 1976 would keep them vigilant and they would not permit directors, partners, or shareholders of the company etc. to do anything wrong or contrary to law.

Ayats of Holy Quran ref.

Sh. Khizar Hayat for Petitioner.

Dates of hearing: 9th June, 1998 and 26th January, 1999.

2001 P Cr. L J 237

[Federal Shariat Court]

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

MAQBOOL HUSSAIN ---Appellant

Versus

ZULFIQAR AHMAD and 2 others---Respondents

Criminal Appeal No. 138/L of 1999, decided on 10th April, 2000.

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

----S. 10(2)---Appreciation of evidence---Plea of valid marriage--­Complainant failed to establish that the prosecutrix was not divorced by him and no regular marriage took place between both the accused persons--­Effect---Both the accused having entered into valid marriage after the prosecutrix was divorced by the complainant, order of acquittal passed by the Trial Court was maintained.

N.A. Butt for Appellant.

Malik Israr Ilahi for Respondents.

Mian Shahid Rasool for the State.

Date of hearing: 10th April, 2000.

2001 P Cr. L J 244

[Federal Shariat Court]

Before Ch. Ejaz Yousuf and Ali Muhammad Baloch, JJ

Mst. KAUSAR SHAHEEN---Appellant

Versus

SAID RASOOL and 3 others---Respondents

Criminal Appeal No. 216/1 of 1999, decided on 27th September, 2000.

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

----Ss. 10 & 11---Criminal Procedure Code (V of 1898), Ss. 200 & 204--­Plea of valid marriage---Simultaneous proceedings in complaint case and challan case---Trial Court passed the judgment in the case and acquitted the accused without getting the controversy of valid marriage decided by Civil Court of competent jurisdiction---Validity---Where during the trial of the complaint case the Trial Court neither stayed the proceedings in the challan case nor afforded opportunity to the parties to get the controversy resolved by a Civil Court of competent jurisdiction, such proceedings were not carried out in accordance with law---Trial Court had failed to follow the proper procedure and had committed a material irregularity---Judgment passed by the Trial Court was set aside with the consent of the parties---Trial Court was directed to give full opportunity to parties to get the controversy regarding validity of Nikah/marriage resolved by Civil Court of competent jurisdiction and to follow the procedure.

Muhammad Azam v. Muhammad lqbal and others PLD 1984 SC 95; Noor Elahi's case PLD 1966 SC 708 and Mst. Naziran v. Saifal and others 1998 PCr.LJ 1689 rel.

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

----Chap. XII-A (265-A to 265-N) & S.200---Complaint case and challan case ---Procedure---Challan as well as complaint cases could not proceed simultaneously and proper course was to take up the complaint case first and stay the proceedings in the challan case---While in proceeding with the complaint case witnesses listed in police challan should also be examined as Court-witnesses under S.540, Cr.P.C. so that the witnesses can be cross­-examined by both the parties and decision can be arrived at by the Court after proper consideration of the entire material available on record and' relied upon by the parties.

Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95; Mst. Rasoolan Bibi v. The State and another 2000 SCMR 641; Mumtaz and 3 others v. Mansoor Ahmad and another 1984 SCMR 221 and Syed Muhammad Hussain Shah v. Abdul Hamid and 5 others 1981 SCMR 361 and 1981 SCMR 361 rel.

Muhammad Munir Peracha for Appellant.

Haji Syed Abdul Aziz Shah for Respondents.

Malik Shaukat Hussain for the State.

Date of hearing: 27th September, 2000.

2001 P Cr. L J 255

[Federal Shariat Court]

Before Dr. Fida Muhammad Khan, Ch. Ejaz Yousuf and Ali Muhammad Baloch, JJ

Mst. AZEEBA KAUSAR‑‑‑Appellant

versus

ZAFAR IQBAL and 2 others‑‑‑Respondents

Criminal Appeal No. 184/1 of 1998, decided on 25th September, 2000.

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

‑‑‑‑Ss. 1(3) & 12‑‑‑Anti‑Terrorist Court, jurisdiction of ‑‑‑Retrospectivity‑‑­Offence was committed prior to the promulgation of Anti‑Terrorism Act, 1997, but the trial of the case was initiated in the Anti‑Terrorism Court‑‑­Validity‑‑‑Anti‑Terrorism Court had no jurisdiction to try the offence and the offender was liable only under the law existing at the time of commission of the offence.

Maulvi Muhammad Jameel and others v. The State PLD 1965 SC 681 and Hafiz Abdul Karim v. The State PLD 1959 (W.P.) Lah. 883 ref.

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

‑‑‑‑Ss. 5, 29, & 265‑H‑‑‑Criminal trial‑‑‑Procedure‑‑‑Trial of a case has to be conducted by the Court competent to try the offence but proceedings must be carried out in the "prescribed manner" ‑‑Judgment passed under S.265‑H, Cr.P.C. is to be delivered only after following the "prescribed manner".

(c) Anti‑Terrorism Act (XXVII of 1997)‑‑‑

‑‑‑‑Ss. 1(3) & 12‑‑‑Penal Code (XLV of 1860), Ss.302/34‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑‑Criminal trial‑‑­Transfer of proceedings from Anti‑Terrorism Court to the Court of ordinary jurisdiction‑‑‑De novo trial‑‑‑Offence was committed prior to the promulgation of the Anti‑Terrorism Act, 1997, and the challan was initially submitted in the Anti‑Terrorism Court but later on the same was sent to the Court of ordinary jurisdiction‑‑‑Trial Court proceeded with the trial of the case from the stage from where the case was transferred ‑‑‑Validity‑‑‑Anti­-Terrorism Act, 1997,. was not in existence, on the day when the offence was committed, therefore, the Court constituted thereunder had no jurisdiction to try the offence‑‑‑Proceedings carried out by the Anti‑Terrorism Court were without jurisdiction‑‑‑Judgment passed by the Trial Court, whereby the accused was acquitted of the charge was set aside‑‑‑Case was remanded to the Trial Court for decision afresh with the consent of the parties.

Abdul Rashid and 5 others v. The State and others PLJ 1990 Lah. 532 (sic) fol.

Ch. Ameer Muhammad Khan for Appellant.

Muhammad Sharif Janjua for the State.

Ch. Zamarrud Hussain for Respondents.

Date of hearing: 25th September, 2000.

2001 P Cr. L J 412

[Federal Shariat Court]

Before Fazal Ilahi Khan, C.J., Dr. Fida Muhammad Khan and Ch. Ejaz Yousuf, JJ

MUHAMMAD ASHRAF‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.27‑I of 1998 linked with Criminal Murder Reference No. 11/1 of 1999, decided on 4th October, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Principles‑‑‑Rule that the integrity of a witness is indivisible, cannot be accepted, because if a witness is proved to have not come out with the truth on a particular point, even then his entire statement cannot be said to be false‑‑‑Court in such a situation should not discard the statement of the witness outrightly but should take into account those portions of his statement which find corroboration from other independent evidence.

Haq Nawaz and others v. The‑ State 2000 SCMR 7; Muhammad Ahmad v. The State 1997 SCMR 89; Ahmad Khan v. Nazir Ahmad 1999 SCMR 803; Muhammad Asghar and another v. The State PLD 1994 SC 301; Sardar Khan and others v. The State 1998 SCMR 1823 and Tawab Khan v. The State PLD 1970 SC 13 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.41‑‑‑Appreciation of evidence‑‑‑Conviction on the basis of confession‑‑‑Validity‑‑‑Where the Court believe a confession, judicial or extra‑judicial, retracted or unretracted, to be voluntary and true, the accused can be convicted on its sole basis.

Sarfraz Khan's case 1996 SCMR 188 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S 302‑‑‑Appreciation of evidence‑‑‑Circumstantial evidence‑‑‑Law does not prohibit conviction of accused in a murder case on the basis of circumstantial evidence‑‑‑Not the type of such evidence, but it is sufficiency and quality which matters.

Khubaib Ahmad v. The State 1992 SCMR 398; Nazir Ahmad and others v. The State 1994 SCMR 58 and Muhammad Aslam and others v. The State 1999 SCMR 845 ref.

(d) Penal code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 308 & 299(a)‑‑‑Appreciation of evidence‑‑‑Sentence‑‑‑Alteration of‑‑‑Witnesses before whom the accused had confessed his guilt were independent witnesses of the locality having no motive for his false implication‑‑‑Prosecution version was supported by medical evidence, Chemical Examiner's Report and incriminating recoveries effected at the instance of accused‑‑‑Evidence regarding the accused having been seen near and around the well in question in the odd hours of the night, had also strengthened the prosecution case‑‑‑None of the prosecution witnesses including the complainant had any animosity against the accused for his wrong involvement in the case and letting the real culprit go unpunished‑‑?Conviction of accused was upheld in circumstances‑‑‑Accused, however, being below the age of 18 years at the time of occurrence, was not an "adult" within the meaning of S.299(a), P.P.C., his case fell within the ambit of S308, P.P.C., and he had attained sufficient maturity to realise the consequences of the heinous act done by him‑‑ Sentence of death awarded to accused by Trial Court was altered to 14 years' R,L, keeping ‑ in view the facts and circumstances of the case and he was also to pay Diyat.

Haq Nawaz and others v. The State 2000 SCMR 7; Muhammad Ahmad v. The State 1997 SCMR 89; Ahmad Khan v. Nazir Ahmad 1999 SCMR 803; Muhammad Asghar and another v. The State PLD 1994.SC 301; Sardar Khan and others v. The State 1998 SCMR 1823; Tawab Khan v. The State PLD 1970 SC 13; Sarfraz Khan's case 1996 SCMR 188; Khubaib Ahmad v. The State 1992 SCMR 398; Nazir Ahmad and others v. The State 1994 SCMR 58; Muhammad Aslam and others v. The State 1999 SCMR 845 and Muhammad Afzal alias Seema v. The State 1999 SCMR 2652 ref., (e) Crinunal trial‑‑‑

‑‑‑‑Witness‑‑‑Rule that the integrity of a witness is indivisible, cannot be l accepted, because if a witness is proved to have not come out with the .truth on a particular point, even then his entire statement cannot be said to be false‑‑‑Court in such a situation should not discard the statement of the witness outrightly but should take into account those portions of his statement which find corroboration from other independent I evidence.

Ch. Naseer Ahmed Tahir for Appellant.

Muhammad Sharif Janjua for the State.

Date of hearing: 17th May, 2000.

2001 P Cr. L J 481

[Federal Shariat Court]

Before Ch. Ejaz Yousuf and Ali Muhammad Baloch, JJ

BISMILLAH KHAN and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.22/I of 2000, decided on 28th September, 2000.

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

‑‑‑‑Ss. 193 & 190(3)‑‑‑Cognizance of offences by Courts of Session‑‑‑Court of Session is debarred under S.193, Cr.P.C. from taking cognizance of the case as a Court of original jurisdiction unless the case is sent to it by a Magistrate under S.190(3), Cr.P.C., whereas a Special Court under the Act can take cognizance of the case directly as a Court of original jurisdiction in the same manner as a Magistrate is empowered to take cognizance of a case under S.190 of the Code.

1994 SCMR 2177 ref.

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

‑‑‑‑S. 193‑‑‑Cognizance of offences by Courts of Session‑‑‑Court of Session is competent to take cognizance of an offence right away as a Court of original jurisdiction if it is specifically or by necessary implication authorized in this behalf; for instance the cases covered by S.480, Cr.P.C. or the offences friable by the Special Courts constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 396/34 & 397/34‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.20‑‑‑Criminal Procedure Code (V of 1898), S.193‑‑‑Jurisdiction of Trial Court challenged ‑‑‑Challan of the case was never ,presented by the police before a Magistrate for the purpose of taking of cognizance and had been filed directly in the Court of Session merely on the recommendation of the District Attorney‑‑‑Since the condition precedent for exercise of jurisdiction i.e. sending the case by Magistrate to the Sessions .Court as required by S.193(1), Cr.P.C. was not fulfilled, Sessions Court was not competent to take cognizance of the offence on the "report" directly submitted to it through the District Attorney and the proceedings carried out by the Sessions Court were patently illegal‑‑‑Number of the accused persons involved in the offence under S.396, P.P.C. must be five or more and the accused in the case being only two in number, they could not have been convicted and sentenced under S.396, P.P.C.‑‑­Convictions and sentences of accused were set aside in circumstances with consent of the parties with the direction to the Advocate‑General concerned to ensure that challan of the case was forwarded to the Magistrate empowered to take cognizance of the offence who after doing the needful would send the same to the Court of Session for trial afresh in accordance with law.

Doran Khan v. The State PLD 1985 Quetta 188; P.C. Gulati v. Lajwa Ram and others AIR 1966 SC (Ind.) 595; Paridaran Mani and others v. State of Kerala AIR 1966 Ker. 1; Riffat Hayat v. Judge, Special Court for Suppression of Terrorist Activities, Lahore and another 1994 SCMR 2177; Muhammad Saeed and 6 others v. The State and another PLD 1984 SC 29; Bago and 2 others v. The State 1996 PCr.LJ 1818; Queen‑Empress v. Jagat Chandra Mali and another (1894) 22 Cal. 50; Maula Khan's case 27 AWN 178; Emperor v. Stewart AIR 1927 Sindh 28; Shashni‑Rajbanshi v. Emperor 42 Cal. 856; Queen‑Empress v. Rama Teran and others ILR 15 Mad. 352; Muhammad Aslam and 2 others v. Mst. Natho Bibi PLD 1977 Lah. 535; Mehar Khan v. Yaqoob Khan and others 1981 SCMR 267; Rahim Dad v. The State and another 1980 PCr.LJ 500; Muhammad Ishaque v. The State 1979 PCr.LJ Note 96 at p.63; Muhammad Yaqoob and 2 others v. Muhammad Ismail and another 1979 PCr.LJ Note 116 at p.74(2); Damon and 6 others v. The State 1992 MLD 1992; Fareed v. Allah Wasaya PLD 1979 Quetta 156; Mst. Saleem Akhtar v. Faisal, and others PLD 1982 FSC 95 and 1994 SCMR 2177 ref.

Muhammad Aslam Chishti for Appellants. Qari Abdur Rashid for the State.

Date of hearing: 28th September, 2000.

2001 P Cr. L J 503

[Federal Shariat Court]

Before Ch. Ejaz Yousuf and Khan Riaz‑ud‑Din Ahmed, JJ

SALEEM KHAN and others‑‑‑Appellants

versus

THE STATE and others‑‑‑Respondents

Criminal Appeals Nos.90‑I, 92‑I and Criminal Revision No.7‑I of 2000, decided on 20th December, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 377‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 19‑‑‑Appreciation of evidence‑‑‑Delay in lodging F.I.R. was satisfactorily explained‑‑‑Medical evidence was not at variance to the prosecution version‑‑‑Victim not only had fully supported the prosecution case as regards sodomy committed upon him by all the accused persons, but also in a straightforward manner had deposed that he was taken by one of the accused to the place of occurrence deceitfully‑‑‑Victim was subjected to lengthy cross‑examination by the accused but nothing favourable to them or damaging to the prosecution, was elicited from him‑‑‑Sole testimony of the victim which inspired confidence, would be sufficient to base conviction of the accused and was rightly believed by Trial Court‑‑‑Prosecution witness in his deposition had confirmed statement of victim‑‑‑Disclosure made by the victim to the prosecution witness regarding incident being a statement made under immediate influence of the transaction, was admissible as res gestae under Art. 19 of Qanun‑e‑Shahadat, 1984‑‑‑No evidence was available on the record to believe that the accused were falsely implicated in the case by the victim or his father in order to settle the score on account of previous animosity or litigation between the parties as alleged by the accused‑‑‑Abduction of the victim was an individual act of one of the accused and while partly allowing criminal appeal to the extent of that accused, High Court convicted him under S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and sentenced him to rigorous imprisonment for seven years on that count as well‑‑‑Case against accused having fully been proved they were rightly convicted and sentenced.

Zar Bahadur v. The State 1978 SCMR 136; Abdul Ghaffar and another v. The State 1987 PCr.LJ 2127; Mst. Shamim Akhtar v. Fiaz Akhtar and 2 others PLD 1992 SC 211; Faqir Muhammad v. The State PLD 1971 Lah. 929; Noor Muhammad v. Imtiaz Ahmad and another 197 IC 839 and Emperor v. Phagunia Bhuian AIR 1926 Pat. 58 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 377‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 12‑‑‑Appreciation of evidence‑‑‑Delay in lodging F.I.R.‑‑‑Effect‑‑‑Cases of Zina and sodomy wherein honour of the victim and his family was always at stake, delay in lodging F.I.R., normally had not been considered fatal, provided it was satisfactorily explained.

Suleman v. The State PLD 1984 FSC 121; Mubarik Ali and another v. The State PLD 1984 FSC 55 and Azhar Iqbal and 2 other’s case 1997 PCr. LJ 1500 ref.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 132, 133 & 30‑‑‑Examination and cross‑examination of witnesses‑‑­Statement of the complainant with regard to the explanation offered by him respecting delay in lodging F.I.R. was not specifically challenged at the trial‑‑‑Effect‑‑‑If evidence given by a witness on certain point in examination‑in‑chief was not challenged and authenticity of the fact was not questioned in cross‑examination, the legal presumption would be that said fact had been admitted by the party against whom the same had been brought on record.

Mst. Noor Jehan Begum through Legal‑ Representatives v. Syed Mujtaba Ali Naqvi 1991 SCMR 2300; Qamar‑ud‑Din through his Legal Heirs v. Hakim Mahmood Khan 1988 SCMR 819; Muhammad and others v. State 1993 PCr.LJ 1632; Kaleem Ahmad and others v. The State PLD 1993 Kar. 13; Amjad Pervez v. State 1992 ALD 269(2); Mst. Nazeer Begum v. Abdul Sattar PLD 1963 Kar. 465; Karim‑ud‑Din Shad v. Mst. Fatima Mian Ahmad 1989 CLC 545; Muhammad Ibrahim v. Haji Raza Hussain 1987 MLD 515; Muhammad Mujeeb‑ur‑Rehman Siddiqui v. Abdul Bari and 3 others PLD 1981 Kar. 537; Fida Hussain v. Mst. Anwari Khatoon 1985 MLD 110 and Syed Iqbal Hussain v. Mst. Sarwari Begum PLD 1967 Lah. 1138 ref.

(d) Criminal trial‑‑‑

‑‑‑‑Evidence‑‑‑Not the number of witnesses, but quality and credibility of evidence which was to be considered.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 377‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 12‑‑‑Appreciation of evidence‑‑‑Generally, in cases of Zina and sodomy, hardly there was any witness other than the victim as it was very rare that the offence would take place in view of others or at public place‑‑‑Sole testimony of the victim would be attached great sanctity and would be sufficient to base conviction of accused, if same inspired confidence.

Ch. Abdul Qayyum for Appellant (in Criminal Appeal No.90‑I of 2000).

Muhammad Yousaf Zia for the State q (in Criminal Appeal No.90‑I of 2000).

Malik Rab Nawaz Noon for Appellant (in Criminal Appeal No.92‑1 of 2000).

Ch. Abdul Qayyum for Respondents (in Criminal Appeal No.92‑I of 2000).

Malik Rab Nawaz Noon for Petitioner (in Criminal Revision No.7‑I of 2000).

Date of hearing: 17th November, 2000.

2001 P Cr. L J 783

[Federal Shariat Court]

Before Ali Muhammad Baloch, J.

ABDUL SATTAR‑‑‑Appellant

versus

THE STATE‑‑‑Respondent, Criminal Appeal No.37/K of 2000, decided on 3rd November, 2000.

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

‑‑‑‑Art. 4‑‑‑Appreciation of evidence ‑‑‑S.H.O. of the police station concerned had nest investigated the case and had not even examined its facts, nor he had specifically authorised its investigation by the C.I.A. Police Officer‑‑‑Sub‑Inspector of Police of C.I.A., therefore, could not be said to have been entrusted with the investigation of the case by any authorised or in-charge Police Officer of the concerned police station ‑‑‑C.I.A. Police could not have undertaken the investigation on their own, specially when it caused serious prejudice to the accused‑‑‑Said .C.I.A. Police Officer who had also acted as a complainant in the se had not made any effort to secure the services of any independent witnesses and his immediate subordinates who were in his company at the relevant time were made 'to act as the Mashirs of the recovery of heroin from the accused‑‑‑Police Office:, under S.156(1), Cr.P.C. was not prohibited to be a complainant when he was a witness to the commission of offence‑‑‑Such Police Officer could be Investigating Officer so long as same did not in any way prejudice the accused person ‑‑‑S.H.O. of the police station concerned was neither cited as a witness nor examined at the trial and the aforesaid C.I.A. Police Officer had created a one man show in challenging the accused and producing his one subordinate only as a witness at the trial which had caused serious prejudice to the accused‑‑‑Accused was acquitted in circumstances.

PLD 1997 SC 408 ref.

Shahadat Awan for Appellant.

Sharafit Ali Khan for the State.

Date of hearing: 3rd November, 2000.

2001 P Cr. L J 793

[Federal Shariat Court]

Before Sardar Muhammad Dogar, J

IRFAN AHMAD‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.28/L of 1999, decided on 29th June, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 377‑‑‑Appreciation of evidence‑‑‑Sentence, reduction in‑‑‑Medical evidence had supported the prosecution version‑‑‑Anal swabs of the victim were found to have been stained with semen by the Chemical Examiner‑‑­Prosecution witnesses had corroborated each other and fully stood the test of cross‑examination‑‑‑Victim had implicated the accused for having committed sodomy with him‑‑‑Plea taken by accused in his defence was not substantiated on the record‑‑‑Accused neither produced any evidence in defence nor chose to make statement under S.340(2), Cr.P.C.‑‑‑No specific enmity or differences were shown by the accused between the parties necessitating his false involvement in the case‑‑‑Conviction of accused was maintained in circumstances with substantial reduction in his sentence.

Mian Muhammad Rafi Mughal for Appellant.

Syed Ali Raza for the State.

Date of hearing: 29th June, 1999.

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2001 P Cr. L J 813

[Federal Shariat Court]

Before Ali Muhammad Baloch, J

ABDUL SHAKOOR‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Jail Appeal No.71/Q of 2000, decided on 25th January, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 457‑‑‑Criminal Procedure Code (V of 1898), Ss.342 & 164‑‑­Appreciation of evidence‑‑‑Only evidence found against the accused during investigation was his alleged judicial confession‑‑‑Accused who, in his statement under S.342, Cr.P.C., had denied all the allegations against him and also denied that the alleged judicial confession was voluntarily given by him‑‑‑No question was put to the accused whether the confessional statement made by him was true or was extracted under pressure‑‑‑Accused had been in police custody for the period of five to six days before recording of his alleged confession and the accused had alleged that he was severely maltreated and alleged confession had been extracted from him by torturing him‑‑‑Alleged confessional statement of the accused being retracted and not supported by any other circumstances of the case and being result of maltreatment and torture of the accused, could not be safely relied upon for conviction of the accused‑‑‑Stolen property had not been recovered from the accused‑‑‑Neither complainant nor any other witness claimed to be present at the time of the incident‑‑‑Identification of the accused by complainant was not admissible in evidence‑‑‑Prosecution having failed to connect the accused with commission of offence by whatever evidence, judgment of Trial Court convicting and sentencing the accused, was set aside.

Sheryn Zaman and others v. The State 1989 PCr.LJ 1526 and Wazir Khan v. The State 1989 SCMR 446 ref.

Miss Ghazala Sheerin for Appellant.

Qari Abdul Rashid for the State.

Date of hearing: 25th January, 2001.

2001 P Cr. L J 884

[Federal Shariat Court]

Before Ali Muhammad Baloch and Khan Riaz‑ud‑Din Ahmad, JJ

SULTAN AHMAD‑‑‑Appellant

versus

Mst. KHURSHEED BEGUM and 2 others‑‑‑Respondents

Criminal Appeal No. 55/1 of 2000, decided on 31st January, 2001.

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

‑‑‑‑Ss. 16 & 16‑‑‑Criminal Procedure Code (V of 1898), S.417(2‑A)‑‑­Appeal against acquittal‑‑‑Complainant had nourished a grudge against his wife and her uncle, both accused in the case and he being a police employee appeared to have filed the case against them in order to humiliate and trouble them‑‑‑No evidence about cohabitation between the accused being available on‑the record, it was not proved that female accused had become pregnant as a result of her cohabitation with her uncle co‑accused‑‑‑Mere living of female accused in the house of her uncle with pregnancy did not provide any proof of Zina under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979‑‑‑No allegation of even illicit intimacy between the two accused was brought on the file‑‑‑Accused, after their acquittal, were enjoying double presumption of being innocent which was not rebutted by the complainant‑‑­Impugned judgment of acquittal was balanced and well reasoned‑‑‑Appeal against acquittal of accused was dismissed in limine accordingly.

Muhammad Aslam Uns for Appellant.

Qazi Muhammad Amin for Respondents.

Malik Shaukat Hussain Awan for the State.

Date of hearing: 31st January, 2001.

2001 P Cr. L J 890

[Federal Shariat Court]

Before Fazal Ilahi Khan, C.J. and Khan Riaz‑ud‑Din Ahmad, J

ALI AKBAR‑‑‑Appellant

versus

THE STATE‑‑‑Respondent'

Criminal Appeal No.34/Q of 1998, decided on 26th September, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 & 392‑‑‑Criminal Procedure Code (V of 1898), S.164‑‑‑Qanun‑e­-Shahadat (10 of 1984), Arts.37 & 38‑‑‑Appreciation of evidence‑‑­Confessional statement‑‑‑Investigating Agencies after extracting confessional statement of the accused did not bother to find out the voluntary nature and truthfulness of the confession through other circumstantial evidence‑‑­Investigating Agencies had not proceeded scientifically and also did not apply their mind to the contents of confessional statement‑‑‑Confessional statement to a great extent was not only exculpatory, but was contradictory to the prosecution evidence and was not supported by the medical evidence‑‑­Voluntariness of the retracted confessional statement of the accused being highly doubtful, placing total reliance on such statement had hampered and eroded the effectiveness of the Investigating Agencies‑‑‑Arrest of the accused was shrouded .in mystery and investigation was flimsy and unreliable‑‑‑Accused in circumstances, was acquitted of the charge.

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

‑‑‑‑S. 164‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts.37 & 38‑‑‑Confessional statement‑‑‑When confessional statement was retracted, same would result, in absence of any corroborative evidence in line with the contents of the statement, in failure of prosecution case‑‑‑Rule that confession should be or rejected as a whole, was a safe and time tested principle in administering criminal justice‑‑‑Retracted confession needed to be corroborated by reliable prosecution evidence for' basing conviction thereon.

M. Mohsin Javed for Appellant.

Mrs. Ashraf Abbas for the State.

Date of hearing: 26th September, 2000.

2001 P Cr. L J 1086

[Federal Shariat Court]

Present: Ch. Ejaz Yousuf and Ali Muhammad Baloch, JJ

SUHAIL and 3 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.24/K to 27/K of 2000, decided on 2nd November, 2000.

(a) Criminal trial‑‑‑

‑‑‑‑Witness‑‑‑Interested witness ‑‑‑Interested witness is one who has of his own a motive to falsely implicate an accused, is partisan or predisposed towards a party and swayed by a cause against the accused‑‑‑Mere relationship of a witness with the deceased or complainant would not make him an interested witness if he had otherwise no motive of his own to involve the accused.

Saeed Akhtar and others v. The State 2000 SCMR 383; Allah Wasaya and another v. The State 2000 SCMR 746; Iqbal alias Bala and 2 others v. The State 1994 SCMR 1; Nazir v. The State PLD 1962 SC 269; Khalil Ahmad v. The State 1976 SCMR 161; Allah Ditta and others v. The State 1970 SCMR 734; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Muhammad Sarwar v. The State 1999 SCMR 2428 and Abdul Ghafoor v. The State 2000 SCMR 919 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 396/149‑‑‑Appreciation of evidence‑‑‑Late sending of incriminating material to Expert‑‑‑Effect‑‑‑Delay simpliciter in sending the incriminating material to an Expert is always not fatal to the prosecution case, particularly when neither any tampering is alleged nor proved on record.

Anwar‑ul‑Hasan v. The State 1980 SCMR 649 and Mian Khan v. The State 1982 SCMR 629 ref. .

(c) Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979)‑‑‑

‑‑‑‑5. 7‑‑‑Proof of theft liable to Hadd‑‑‑Requirement of Tazkiya‑al‑Shuhood is obligatory only in cases punishable with Hadd and/or Qisas but not in cases punishable with Ta'zir.

Mumtaz Ahmad and another v. The State PLD 1990 FSC 38; Arshad Ali v. The State 1993 PCr.LJ 2540; Ghulam Ali v. The State PLD 1986 SC 741; Sanaullah v. The State PLD 1991 FSC 186; Muhammad Yaseen alias Seema v. The State (?); Riaz Ahmad v. The State PLJ 1990 SC 105 and Abdul Salam v. The State 2000 SCMR 338 ref.

(d) Qanun‑e‑Shahadat (10 of 1984)‑‑‑-

‑‑‑‑Art. 19‑‑‑Relevancy of facts forming part of same transaction‑‑‑Hearsay evidence‑‑‑Admissibility‑‑‑Hearsay testimony would be admissible if it is proved that the object of the maker of the statement was to elucidate and explain‑the circumstances connected with the same transaction, provided the possibility of concoction or distortion to the advantage of the maker or to disadvantage of the accused is ruled out.

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

‑‑‑‑S. 382‑B‑‑‑Object‑‑‑Object imbedded in S.382‑B, Cr.P.C. is to compensate the accused for the delay in conclusion of the trial due to various factors generally not attributable to him as the State is supposed to provide speedy justice.

Ghulam Murtaza v..The State PLD 1998 SC 152; Muhammad Rafiq v: The State 1995 SCMR 1525; Javed Iqbal v. The State 1998 SCMR 1539 and Mukhtaruddin v. The State 1975 SCMR 55 ref.

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

‑‑‑‑S. 382‑B‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Murder‑‑‑Applicability of S.382‑B, Cr.P.C.‑‑‑Benefit of S.382‑B, Cr.P.C. is extendable even in cases of life imprisonment despite the fact that the murder was gruesome.

Ramzan v. The State PLD 1992 SC. 11; Qadir and another v. The State PLD 1991 SC 1065 and Ghulam Murtaza v. The State PLD 1998 SC 152 ref.

(g) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 396/149‑‑‑Appreciation of evidence‑‑‑Occurrence as well as its date and time was not disputed by the defence‑‑‑F.I.R. was hot delayed in view of circumstances of the case and had been lodged without any deliberation‑‑?Eye‑witnesses being closely related to the deceased and residents of the same house were natural witnesses of the occurrence and their statements had been corroborated by an independent witness of the locality in all material particulars‑‑‑Presence of eye‑witnesses at the place of occurrence was not open to any doubt and they could not be conceived to have falsely implicated the accused or substituted them for the real culprits‑‑‑Accused being the residents of the same "Mohalla" were previously known to the eye‑witnesses and they had been nominated in the F.I.R. with specific roles attributed to them‑‑‑Defence plea that the accused had been falsely implicated in the case in place of unknown dacoits was without substance‑‑‑Medical testimony and apprehension of two accused at the spot alongwith pistols had further supported the prosecution version‑‑‑Conviction and sentences of accused were upheld in circumstances except reduction in sentence of two accused who were not directly responsible for causing the death of the deceased‑‑‑Accused had neither delayed the proceedings nor obstructed the trial in any manner, Trial Court, therefore, could not have withheld the benefit of S.382‑B, Cr.P.C. and the same was allowed to accused accordingly.

Saeed Akhtar and others v. The State 2000 SCMR 383; Allah Wasaya and another v. The State 2000 SCMR 746; Iqbal alias Bala and 2 others v. The State 1994 SCMR 1; Nazir v. The State PLD 1962 SC 269; Khalil Ahmad v. The State 1976 SCMR 161; Allah Ditta and others v. The State 1970 SCMR 734; Sarfraz alias Sappi and 2 others v. The State 2000 SCMR 1758; Muhammad Sarwar v. The State 1999 SCMR 2428; Abdul Ghafoor v. The State 2000 SCMR 919; Anwar‑ul‑Hasan v. The State 1980 SCMR 649; Mian Khan v. The State 1982 SCMR 629; Mumtaz Ahmad and another v. The State PLD 1990 FSC 38; . Arshad Ali v. The State 1993 PCr.LJ 2540; Ghulam Ali v. The State PLD 1986 SC 741; Sanaullah v. The State PLD 1991 FSC 186; Muhammad Yaseen alias Seema v. The State (?) Riaz Ahmad v. The State PLJ 1990 SC 105; Abdul Salam v. The State 2000 SCMR 338; Ghulam Murtaza v. The State PLD 1998 SC 152; Muhammad Rafiq v. The State 1995 SCMR 1525; Javed Iqbal v. The State 1998 SCMR 1539; Mukhtaruddin v. The State 1975 SCMR 55; Ramzan v. The State PLD .1992 SC 11 and Qadir and another v. The State PLD 1991 SC 1065 ref.

Noor Nabi Memon, Advocate for Appellants.

Shaikh Ghularn Sabir Niazi, Advocate for the Complainant.

Jawed Akhtar, Advocate for the State.

Date of hearing: 2nd November, 2000.

2001 P Cr. L J 1210

[Federal Shariat Court]

Before Ch. Ejaz Yousuf and Khan Riaz‑ud‑Din Ahmed, JJ

MUHAMMAD ASLAM and 2 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 148/1 of 1998, decided on 7th February, 2001.

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

‑‑‑‑Ss. 10(3) & 16‑‑‑Appreciation of evidence‑‑‑Complainant and the abductee had made consistent, straightforward and truthful statements which inspired confidence and were worth reliance‑‑‑Medical evidence and the positive report of the Chemical Examiner regarding vaginal swabs of the abductee had amply corroborated her testimony proving her being subjected to sexual intercourse ‑‑‑Abductee had also clearly implicated co‑accused as an active member of the accused party and helpful to the main accused in achieving his illicit object‑‑‑Documentary and oral defence evidence about Nikah of the abductee with main accused being manipulated and manoeuvred did not inspire confidence and was baseless‑‑‑Conviction and sentence of accused were upheld in circumstances with some reduction in the sentence of main accused.

Malik Rab Nawaz Noon for Appellants.

Malik Azmat Ullah for the Complainant.

Muhammad Sharif Janjua for the State.

Date of hearing: 29th November, 2000.

2001 P Cr. L J 1234

[Federal Shariat Court]

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

MUHAMMAD IFTIKHAR and 3 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 117/1 of 2000, decided on 21st February, 2001.

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

‑‑‑‑Ss. 10(3)/18 & 11‑‑‑Penal. Code (XLV of 1860), Ss. 324/34 & 454‑‑­Appreciation of evidence‑‑‑Complainant had stood firm and her testimony could not be shaken despite lengthy cross‑examination‑‑‑Record did not furnish any ground or motive for false implication of accused by the complainant who being a married lady could not possibly ruin her career and honour without any rhyme or reason‑‑‑Delay in reporting the matter to the police had been plausibly explained which was likely to take place in cases involving family honour‑‑‑Statement of the complainant had received full circumstantial support from the depositions of other prosecution witnesses who had seen her coming after the occurrence to her house in weeping condition and to whom she had narrated the details of the occurrence‑‑­Defence plea about bad reputation of the complainant and her habit to squeeze money in such' manner was not substantiated on record‑‑‑Accused being residents of the same locality, question of their mistaken identity by the complainant did not arise‑‑‑Prosecution had, thus, proved its case against the accused beyond any reasonable doubt‑‑‑Convictions of accused were consequently maintained with substantial reduction in their sentences according to the circumstances of the case.

Malik Rab Nawaz Noon for Appellants.

Ch. Muhammad Ibrahim for the State.

Date of hearing: 23rd October, 2000.

2001 P Cr. L J 1243

[Federal Shariat Court]

Before Fazal Ilahi Khan, CJ

MUHAMMAD JAVAID and 6 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 6/I, 7/I and 8/I of 2000, decided on 3rd April, 2000.

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

‑‑‑‑S. 14‑‑‑Constitution of Pakistan (1973), Art. 14‑‑‑Appreciation of evidence‑‑‑Main female accused having not been proved to be a prostitute or to be keeping or managing a brothel, Explanation to S.14 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, could not be relied upon‑‑­Prosecution case rested only on the spy information which was not even substantiated at the trial‑‑‑Nobody from the locality had come forward to support the prosecution version‑‑‑No evidence was brought on record to connect the male accused with the commission of the offence‑‑‑No money was recovered from the personal search of female accused or male accused at the time of their arrest‑‑‑Dignity of man and privacy of home guaranteed by Art. 14 of the Constitution had been flagrantly violated by the Investigating Officer who had not admittedly obtained even a search warrant from the Ilaqa Magistrate‑‑Conviction of accused was based merely on surmises and conjectures‑‑‑Accused were acquitted in circumstances.

Malik Rab Nawaz Noon, Nazar Muhammad Tahir, Talat Mehmood Zaidi and Dr. Babar Awan for Appellants.

Fazal‑ur‑Rehman Rana and Yousaf Zai for the State.

Date of hearing: 3rd April, 2000.

2001 P Cr. L J 1253

[Federal Shariat Court]

Before Ali Muhammad Baloch, J

MUNEER AHMED and 3 others‑‑‑Applicants

Versus

THE STATE and another‑‑‑Respondents

Miscellaneous Application No. 20‑K of 2000 in Criminal Appeal No. 14/K of 2000, decided on 24th March, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 426(1)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 11/16‑‑‑Suspension of sentence‑‑‑Complaint had been filed in the Court after more than six months of the incident and that too not by the victim herself but by her brother in which four persons of the same family were involved‑‑‑Victim who was a Lady Health Visitor had stated before the Trial Court that she was waylaid by four unidentified and unknown persons and that she even did not know one of them who had subjected her to Zina­bil‑Jabr‑‑‑-Contention was that the case could be one of mistaken identity‑‑‑Sentence of accused was suspended in circumstances and they were admitted to bail accordingly.

Ali Nawaz Dehraj for Applicants.

Suleman Habibullah for A.G. for the State.

2001 P Cr. L J 1468

[Federal Shariat Court)

Before Ali Muhammad Baloch, J

IKRAM ELLAHI and another‑‑‑Appellants

versus

THE STATE and another‑‑‑Respondents

Criminal Appeals Nos.54/K, 56/K and 60/K of 2000, decided on 20th March, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 412 & 411‑‑‑Appreciation of evidence‑‑‑Accused in their statements recorded under 5.342, Cr.P.C. had claimed the golden bangles recovered from them to be their property‑‑‑Proof available before the Trial Court, thus, was the recovery of the said bangles, one from each accused, which had been identified by the prosecution witnesses to be their stolen property‑‑­Conviction of accused under S.412, P.P.C. was consequently altered to one under S.411, P.P.C. and their sentence was reduced to three years' R.I. each with fine in circumstances.

Syed Azmat Shah for Appellants (in Criminal Appeals Nos.54‑K and 60‑K of 2000).

Shahadat Awan for Appellant (in Criminal Appeal No.56‑K of 2000).

Fazal‑ur‑Rehman Awan for the State (in Criminal Appeals Nos.54‑K and 60‑K of 2000).

Date of hearing: 20th March, 2001.

2001 P Cr. L J 1675

[Federal Shariat Court]

Before Sardar Muhammad Dogar, J

ALLAH YAR and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 141/L of 1997, decided on 5th November, 1997.

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

‑‑‑‑S. 10(2)‑‑‑Appreciation of evidence‑‑‑Trial Court had accepted the plea advanced by the accused that they had entered into marriage vide. a regular Nikahnama and their marriage had also been declared valid by the Family Court‑‑‑Trial Court had convicted and sentenced the accused on the grounl9 that they had failed to justify that for about one month and twenty days before their marriage they had not been living in adultery‑‑‑Accused, of course, had also to prove the plea set up by them to a reasonable extent, but the total burden of proof of innocence could not be placed on their shoulders unless the prosecution had brought on record reasonable evidence against them‑‑‑Prosecution had not produced any evidence to show that the accused had been living together during the aforesaid period as husband and wife and had been committing Zina‑‑‑No evidence was even available on record that the accused had been living together in one house or at one place‑‑‑Accused were acquitted in circumstances.

Malik Imtiaz Ahmad Mohl for Appellants.

S.D. Qureshi for the State.

Date of hearing: 5th November, 1997.

2001 P Cr. L J 2

[Karachi]

Before Abdul Hameed Dogar, J

UMER and 4 others---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. S-275 of 1999, decided on 29th November, 1999.

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

----S. 498---Penal Code (XLV of 1860), Ss. 337-F(v)/337-L(2)/504/34---Pre­-arrest bail-;-Accused were named in the F.I.R. who had allegedly participated in the offence and caused serious injuries by "Sotis" on the head and other parts of the bodies of the complainant and his son---No mala fides on the part of the complainant or the police had been shown by the accused---Accused had not joined the police investigation after grant of interim bail by the Court---Pre-arrest bail was declined to accused in circumstances.

1984 SCMR 119 and 1978 SCMR 432 ref.

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

----S. 498---Penal Code (XLV of 1860), Ss. 337-F(v)/337-L(2)/504/34---Pre-­arrest bail---Accused was neither present at the scene of occurrence, nor he had caused any injury to anybody---Interim pre-arrest bail granted to accused was confirmed in circumstances.

Ghulam Hassan Qureshi for Applicants. Ali Azhar Tunio, A.A.G. for the State.

2001 P Cr. L J 27

[Karachi]

Before Muhammad Roshan Essani, J

Mst. JAMEELA---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 285 of 1999, decided on 16th March 1999.

Criminal Procedure Code (V of 1898)---

----S, 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)---Bail, grant of---No independent private eye-witness had been cited in the F. I. R. ---Accused, who was a woman, was not only belaboured by complainant party, but her head was also shaved---No stains were found on clothes of accused and opinion with regard to any fresh act of Zina was reserved for want of Chemical Examiner's Report---Medical Certificate had shown that accused was passing menses when she was medically examined ---F.I.R. was lodged by six and half hours delay whereas police station was quite near and no plausible explanation was given with regard to said inordinate delay---Case against accused had necessitated further inquiry as contemplated under S.497(2), Cr.P.C.---Even otherwise accused being female, her case on ground of sex also merited consideration for grant of bail.

Iftikhar Gul and 2 others v. The State 1996 SCMR 1130(2) ref.

Makhdoom Ejaz Ahmed for Applicant. Arshad Lodhi, Asstt. A.G. for the State.

Date of hearing: 16th March, 1999.

2001 P Cr. L J 35

[Karachi]

Before Wahid Bux Brohi, J

ADHO KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Revision No. 15 of 1997, decided on 28th May, 1999.

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

----S. 514---Penal Code (XLV of 1860), Ss. 307/504/34---Forfeiture of bond---Procedure---Order of issuing writ of attachment, which power was to be exercised under subsection (2) of S.514, Cr.P.C., had been passed much before forfeiting the bond and issuing show-cause notice under subsection (1) of S.514, Cr.P.C., which, on the face of it, was illegal---Orders to the extent of issuing writ of attachment and imposing the penalty of Rs. 50,000 on the petitioner (surety) were consequently set aside and the case was remanded to the Trial Court with the direction to first give proper show-cause notice to the surety under S.514(1), Cr.P.C. and after affording reasonable opportunity to him to pass further orders in accordance with law keeping in view the efforts made by him in producing the accused before the Court.

Rana Masood Ahmed v. The State PLD 1992 Kar. 213 and Sawan and another v. The State PLD 1965 Kar. 516 ref.

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

----S. 514---Forfeiture of bond---Essential requirements---Court to record grounds for forfeiture and call upon the surety to pay penalty thereof or to show cause why same should not be paid---Strict compliance of provisions of S.514, Cr.P.C. was to be made by taking action step by step in order as enjoined in S.514, Cr.P.C.

Anwar Ansari for the State.

2001 P Cr. L J 41

[Karachi]

Before Muhammad Ashraf Leghari, J.

LALOO alias LAL MUHAMMAD and 4 others---Applicants

Versus

THE STATE---Respondent.

Criminal Bail Application No. 321 of 2000, decided on 31st July, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 324/147/148/149---Bail, grant of---Accused had not been attributed any specific role in the crime---Accused were only shown to be present at the place of occurrence and no overt act was attributed to them---Counter-cases were registered by both the parties and three persons had lost their lives from the accused side and F.I.R. of accused party in that respect was filed prior in time---Was yet to be decided as to which of the parties was the aggressor ---F.I.R. had not shown that accused were armed with any weapon or that they had caused injuries to injured---Accused, in circumstances, could not be said to be guilty of offence covered by prohibitory clause of S.497(1), Cr.P.C.---Bail was granted to accused.

Abdul Rasool Abbasi for Applicants.

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

2001 P Cr. L J 54

[Karachi]

Before Ghulam Nabi Soomro and Anwar Zaheer Jamali, JJ

MUHAMMAD YOUNAS KHASKHALI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 760 of 2000, decided on 9th August, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497(1), third proviso---Penal Code (XLV of 1860), Ss. 365-A/ 302/34---Bail on ground of statutory delay---Accused had been granted bail on the ground of statutory delay in conclusion of the trial after remaining in jail, firstly for more than four years and secondly for nearly three years after his alleged abscondence for one month---Accused had admittedly remained in continuous custody for more than 7-1/2 years except the aforesaid break of one month---Case of accused fell within the third proviso to S.497(1), Cr.P.C.---Accused was admitted to bail accordingly.

Zahid Hussain Shah v. The State PLD 1995 SC 49 ref.

Shahdat Awan for Applicant.

Farrukh Zia Shaikh for the Complainant.

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

2001 P Cr. L J 57

[Karachi]

Before Hamid Ali Mirza and Muhammad Ashraf Leghari, JJ

SHAMOON MASIH---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 120 of 1999, decided on 18th January, 2000.

Penal Code (XLV of 1860)---

----S. 377---Appreciation of evidence---Accused had been nominated in the promptly lodged F.I.R. for having committed sodomy with 9/10 years old girl---Victim had fully supported the prosecution version at the trial which was corroborated by medical evidence and she was not cross-examined by the defence---Complainant had no enmity with the accused to implicate him in a false case and earn a bad reputation for his minor girl---Conviction of accused was based on sound judicial principles of administration of criminal justice and the same was upheld---Sentence of imprisonment for life awarded to accused being harsh was reduced to ten years' R.I.

Tariq Parvez v. The State 1995 SCMR 1345 ref.

Mirza Atiq Baig for Appellant. S. Jalil A. Hashmi, A.A.G. for the State.

Date of hearing: 13th January, 2000.

2001 P Cr. L J 96

[Karachi]

Before Muhammad Ashraf Laghari, J

ABDUL NAEEM---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 744 of 1999, decided on 29th July, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497(1), third proviso---Penal Code (XLV of 1860), S.302/34---Bail--­Accused was in jail for the last more than two years and his trial was not yet concluded---Record did not indicate that accused was a desperate, dangerous or a hardened criminal---Even otherwise accused was not nominated in the F.I.R.---Eye-witnesses had been examined by the police after two days of the occurrence, although according to F.I.R. one of the eye-witnesses had taken the deceased to hospital immediately after the incident ---Co-accused in the case had been granted bail about 17 months back---Accused was admitted to bail in circumstances.

Mehmood Akhtar Qureshi for Applicant.

Sharafat Ali Khan for the State.

2001 P Cr. L J 98

[Karachi]

Before Saiyed Saeed Ashhad and Sarmad Jalal Osmany, JJ

RAHAT ALI ---Appellant

Versus

THE STATE---Respondent

Criminal A.T.As. Nos. 45, 46, 48 and 49 alongwith Confirmation Case No. 18 of 1999, decided on 29th June, 2000.

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

----Ss. 365-A/34 & 365/34---Appreciation of evidence---Kidnapping for ransom with which the accused were charged being certainly an act creating fear, terror and insecurity in public, Special Court constituted under S.6(b) of Anti-Terrorism Act, 1997 had correctly assumed jurisdiction in the matter---Kidnapping with or without intent to demand ransom is an act of terrorism---Accused himself having led to the place of recovery of the' kidnapped baby, private witnesses were not required to join the recovery proceedings and witness the recovery---Delay of twelve hours in registration of the F.I.R. had been sufficiently explained;--Even, otherwise; in the presence of other cogent evidence regarding the guilt of accused, delay in lodging the F.I.R. could be ignored---Defence plea regarding enmity between the parties over some property had not been established on record--­Opinion of the Investigating Officer could hardly influence the Court in arriving at its conclusions and the same might be disregarded whet other cogent reasons were available for arriving at a different conclusion based on the material placed before it---Demand for ransom by any of the accused having not been established on the file, they were acquitted of the charge under Ss. 365-A/34; P.P.C.---Prosecution had, however, proved beyond doubt that the accused had kidnapped the minor---Accused were consequently convicted under Ss. 365/34, P.P.C. and sentenced to undergo seven years' R.I. each with fine.

Muhammad Afzal v. S.H.O. 1999 PCr.LJ 929; Sikandar v. The State PLD 1963 SC 17; Ruza Khan v. The State .1998 PCr.LJ 530; Mehmood Ahmed v. The State 1995 SCMR 127; Mehram Ali v. The State 1998 SCMR 1156; Dur Muhammad v. The State 1994 MLD 1493; Hassan v. The State 1999 MLD 873; Kirir v. The State PLD 1996 Kar. 246; Hazzaro v. The State 1998 PCr.LJ 335; Yar Muhammad v. The State 1992 SCMR 96; Umar Hayat v. The State PLD 1995 SC 526; 1997 PCr.LJ 1037; Shaukat v: The State 1996 PCr.LJ 651; Tariq Pervez v. The State 1995 SCMR 1345; Shamoon v. The State 1995 SCMR 1377; Mir Muhammad v. The State 1995 SCMR 614; Muhammad, Akbar v. The State 1995 SCMR 693; Iqbal v. The State 1994 SCMR 1; Amjid Mehmood v. The State 1998 SCMR 1718; Jawad Ali v. The State 1995 SCMR 1305; Jafar Ali v. The State 1998 SCMR 2669; Nasir Abbas v. The State 1995 SCMR 1333; State v. Farman Hussain PLD 1995 SC 1 and Sheraz Akhtar v. The State 1995 SCMR 165 ref.

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

---Ss. 365-A/34 & 365/34---Appreciation of evidence---Delay in registration of F.I.R.---Delay in lodging the F.I.R. is only one of the factors to be considered by a Court in coming to its conclusions and where other cogent evidence is available regarding the guilt of accused, the same may not be considered.

Sheraz Akhtar v. The State 1995 SCMR 165 ref.

Iqtidar Ali Hashmi, Advocate.

Syed Mehmood Alam, Advocate.

Fazlur Rehman Awan, Advocate.

Fazal Haq, Advocate. Habib Ahmed, A.A.G.

Dates of hearing: 10th April and 8th May, 2000.

2001 P Cr. L J 112

[Karachi]

Before Ata-ur-Rehman, J

Sayed IRFAN ALI SHAH and another---Applicants

Versus

THE STATE---Opponent

Criminal Bail Application No. 449 of 2000, decided on 11th September, 2000.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), S.337-A(i)/337-F(i)/337-F(v)/ 337-F(vi)/147/148/149/504---Pre-arrest bail---Investigation of the case was complete and the challan had been submitted in the Trial Court---Allegations against the accused were of general nature and no specific role was assigned to them---Accused had neither used any weapon in the commission of the offence, nor they were alleged to have caused any injury on any vital part of the body of the injured---Interim- pre-arrest bail granted. to accused was confirmed in circumstances.

Manzoor Ahmed Z. Siddiqui for Applicants.

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

2001 P Cr. L J 114

[Karachi]

Before Ghulam Nabi Soomro, J

MUNIR AHMAD alias MUNIR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 148 of 2000, decided on 4th May, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 393/34---Offences Against Property (Enforcement of Hudood), Ordinance (VI of 1979), S.17(3)---Bail-­Injured prosecution witnesses had implicated the accused by picking them in the identification parade held before a Magistrate---Service pistol of the police official (P.W.) had been recovered from the possession of one of the accused---Bail was declined to accused in circumstances.

Abdul Rasool Abbasi for Applicant.

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

2001 P Cr. L J 121

[Karachi]

Before Muhammad Ashraf Leghari. J

Syed MUHAMMAD NAVEED NAQVI---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 435 of 2000, decided on 4th May, 2000, Criminal Procedure Code (V of 1898)--

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/34---Bail---Both the F.I.Rs. recorded at different police stations did not contain the name of the accused---Incident was not witnessed by anybody---Record did not show that any judicial confession of the accused was recorded---Statement of accused was, however, recorded under S.164, Cr.P.C., legal position of which was yet to be examined at the time of trial---No other evidence was available to connect the accused with the commission of the offence---Accused was in custody for the last 17 months---Case of accused required further inquiry as contemplated by S.497(2), Cr.P.C.---Bail was allowed to accused accordingly.

Mumtaz Ali Khan for Applicant:

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

2001 P Cr. L J 124

[Karachi]

Before Shabbir Ahmed, J

YOUSAF---Applicant

Versus

THE STATE---Respondent, Criminal Bail Application No. 629 of 1998, decided on 25th January, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497(1), third proviso---Penal Code (XLV of 1860), Ss. 302/504/34--­Bail on ground of statutory delay ---Abscondence of accused simpliciter could not disentitle him to the concession of bail under third proviso to S.497(1), Cr.P.C.---Accused had completed the detention period of more then two years in jail---Delay in trial due to non-production of accused in Court by Jail Authorities could not be attributed to him---Accused was entitled to bail on the ground of statutory delay in the circumstances and he was enlarged on bail accordingly.

Muhammad Sadiq and others v. Sadiq and others PLD 1985 SC 182; Awal Gul v. Zawar Khan and others PLD 1985 SC 402 and Iqbal Brohi v. The State 1998 PCr.LJ 2066 distinguished.

Abdul Rasool Abbasi for Applicant.

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

2001 P Cr. L J 143

[Karachi]

Before Ghulam Nabi Soomro, J

Mst. KISHWAR---Appellant

Versus

RAIS AHMED and another---Respondents

Criminal Acquittal Appeal No. 160 of 1998, decided on 20th July. 1999

Penal Code (XLV of 1860)---

----S. 320---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Evidence on .record did not implicate the accused in the case in any manner---Eye-witnesses of the occurrence were not named in the F.I.R., even otherwise their attendance in the Court could not be procured by the prosecution---Averments made by the accused in his written statement in a civil suit filed by the complainant could not be made basis for his conviction in the criminal case---Impugned judgment of acquittal was neither perverse nor arbitrary or against the evidence on record---Appeal against acquittal of accused was dismissed accordingly.

Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Muhammad Ijaz Ahmed v. Raja Fahim Afzal and 2 others 1998 SCMR 1281 and Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570 ref.

Arshad Jamal Siddiqui for Appellant.

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

2001 P Cr. L J 157

[Karachi]

Before Saiyed Saeed Ashhad, CJ

MUHAMMAD YOUNAS and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Application No. 812 of 2000, decided on 8th August, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Passports Act (XX of 1974) S.6(1)(a)(c)(f)---Penal Code (XLV of 1860), Ss. 411/419/420/468/471/109---Foreigners Act (XXXI of 1946), Ss. 3(2)(a)(b) & 13/14---Bail---Accepted principle of law being that when an accused person is charged under two different provisions of two different statutes for the offences which are alike or similar in nature, the case will proceed against him under the statute which provides lesser punishment for the offences alleged to have been committed by him and, therefore, the accused were to be tried under the provisions of the Passports Act which provided lesser sentence of three years' R.I.---Case of accused qua the offences under the provisions of the Penal Code required further inquiry to convict them with the said offences---Reasonable grounds did not exist to believe the accused being guilty of an offence punishable with death, imprisonment for life or imprisonment for ten years---Accused were enlarged on bail in circumstances.

Ghulam Sarwar v. The State 1990 SCMR 1045; Muhammad Afzal v. The State 1998 PCr.LJ 955 and Akhtar Hussain Shah v. The State 1999 PCr.LJ 225 ref.

M. Ilyas Khan for Applicants.

S. Tariq Ali, Federal Counsel for the State.

2001 P Cr. L J 163

[Karachi]

Before Ghulam Nabi Soomro, J

BILAL and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 21 of 1998, decided on 17th July, 2000.

Criminal Procedure Code (V of 1898)---

----S. 426(1)(1-A)(c)---Penal Code (XLV of 1860), S.302---Suspension of sentence pending appeal ---Apellants/accsued had remained in jail continuously for a period of more than two years and appeal had not been disposed of---Appellants were entitled for suspension of their sentences and release on bail during pendency of appeal.

KLR 1994 Criminal Cases 87; 1996 PCr.LJ 1506; 1995 PCr.LJ 1522; 1997 SCMR 1521; 1998 SCMR 80 and 1994 PCr.LJ 2479 ref.

Nizamdin Baluch for Appellants.

Dost Muhammad Bullo for the Complainant.

Sher Muhammad Shar, A.A.G. for the State.

2001 P Cr. L J 166

[Karachi]

Before Ghulam Nabi Soomro, J

CHUTTAL KHAN---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No. 384 of 2000, decided on 28th July, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 161, 409, 420, 468, 471, 171, 477-A & 34---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, grant of---Allegation against accused was that he received certain amount of money as illegal gratification fore showing some favour to co-accused---Name of accused did not appear in F.I.R. and only general allegation was levelled in F.I.R. that certain Police Officers had also received bribe from the concerned officer---Accused who was senior Police Officer was not related with affairs of Department concerned in which alleged misappropriation in stocks was committed by high-ranking officers and it was yet to be established if the accused would be liable for offence---Prosecution possessed evidence of two accused who turned approvers and one prosecution witness only against the accused---No reasonable grounds were present to believe that accused was guilty of offence charged against---Case against accused requiring further inquiry, he was released on bail.

PLD 1982 Pesh. 128; 1983 PCr.LJ 2010; 1996 SCMR 1132; 2000 SCMR 1072; Criminal Bail Application No. 651 of 2000 (unreported) and Criminal Bail Application No. 648 of 2000 (unreported) ref.

Imdad Ali Awan for Applicant.

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

2001 P Cr. L J 199

[Karachi]

Before Abdul Ghani Shaikh and Muhammad Roshan Essani, JJ

MUHAMMAD HAFEEZ---Petitioner

Versus

SPECIAL JUDGE, ANTI-TERRORISM COURT, MIRPURKHAS and 2 others---Respondents

Constitutional Petition No. D-24 of 2000, decided on 11th May, 2000.

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

----S. 154---First Information Report---Object and scope ---F.I.R. whether a substantive piece of evidence---Purpose of S.154, Cr.P.C. is to give information of a cognizable offence to Station House Officer of the police station and to set machinery of law into motion---Fate of accused nominated in F.I.R. cannot be solely decided on the allegations made in the F.I.R.---Merely by making allegation against a person with regard to commission of a particular offence does not make a person accused of that allegation until arid unless some evidence connecting the person with alleged crime is collected by the Investigating Agency ---F.I.R. cannot be treated as a substantive piece of evidence, it is only meant for corroboration or contradiction.

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

----Ss. 156 & 173---Investigation after submission of charge-sheet under S.173, Cr.P.C. in the Trial Court---Validity---No bar to investigation by police even after submission of charge-sheet.

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

----S. 156---Investigation of offences alleged in F.I.R.---Object and scope--­Directing Investigating Officer to conduct investigation in a particular manner and to submit challan under a particular provision of law--­Validity---Provision of S.156, Cr.P.C. is to elucidate truth and to submit the same before the Court having jurisdiction by way of acceptable anti admissible evidence---Object of investigation is not ultimate conviction--­Investigation must be honest, and impartial and in no way arbitrary, capricious or whimsical---No fabrication of evidence has to be made and truth is to be sorted out in investigation of alleged offence---Issuance of any direction regarding conducting of investigation and submission of challan under a particular provision of law, is contrary to law.

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

----S. 157---Cognizable offence---Powers of Station House Officer of police station---Scope---Where Incharge of Police Station finds that there is no sufficient reason for investigation, such Officer is empowered under S.157, Cr.P.C. not to investigate such case and has only to send reasons to the concerned Magistrate and notify the same to the informant.

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

----S. 164---Statement recorded under S.164, Cr. P.C.---Object and evidentiary value---Statement recorded under S.164, Cr.P.C. can only be acted upon as a substantive piece of evidence, if the same has been recorded in presence of accused after sufficient notice and proper opportunity for cross-examination has been given to him---Evidentiary value of such statement depends upon peculiar facts and circumstances of each case.

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

----Ss. 169 & 173---Expression "sufficient evidence" appearing in S.169, Cr.P.C.---Connotation---Powers of Investigating Officer ---Scope--­Investigating Officer is competent to weigh, assess and evaluate the material collected by him during the course of investigation and where the Investigating Officer finds that the accused has been falsely involved or there is no sufficient evidence against him, the Investigating Officer can release the accused under S.169, Cr.P.C.---Investigating Officer under S.173, Cr.P.C. is empowered to send up the accused to stand trial.

Mastan Shah v. Additional Sessions Judge/Special Judge Bannu 1999 PCr.LJ 469 ref.

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

----S. 169 & Chap. XIV [Ss. 154 to 176]---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), Sched.---Scheduled offence, investigation of---Powers of Investigating Officer---Releasing of accused on bond during course of investigation before submission of challan---Validity-­-None of the provisions of Suppression of Terrorist Activities (Special Courts) Act, 1975 either expressly or impliedly oust the authority of the Investigating Officer conferred upon him by the provisions of Chap. XIV, Cr.P.C.---Investigating Officer, under S.169, Cr.P.C. has discretionary powers in releasing an accused on bond during the course of investigation before submission of challan---Such is interim relief permissible under the law to innocent person and the same has to stand the test of judicial scrutiny by the Trial Court of proper stage, after taking cognizance of the case--­Where no separate machinery has been provided for investigation of scheduled offences under Suppression of Terrorist Activities (Special Courts) Act, 1975, the powers/authority of Police/Investigating Officer is one and the same for investigating the scheduled offences.

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

----S. 23---Criminal Procedure Code (V of 1898), S.173---Penal Code (XLV of 1860), Ss. 220 & 506(11)---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Transfer of case to Court of competent jurisdiction---Offences not mentioned in Schedule to Anti-Terrorist Act, 1997---Challan under S.173, Cr.P.C. was submitted in Anti-Terrorism Court and Anti-Terrorism Court refused to transfer the case to the Court of competent jurisdiction---Validity---Where Investigating Agency itself was of the view that no scheduled offence was committed, the proper course was to return the F.I.R. to police for presenting the same before competent Court having jurisdiction in the matter---High Court directed the Anti-Terrorism Court to return the case to the investigating police for presenting the same before the competent Court having jurisdiction.

Syed Maddad Allay Shah for Petitioner.

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

Date of hearing: 1st February, 2000.

2001 P Cr. L J 287

[Karachi]

Before Abdul Ghani Shaikh, J

NADEEM AKBER---Applicant/Accused

versus

THE STATE---Respondent

Criminal Revision No.78 and Miscellaneous Application No.1198 of 2000, decided on 25th August, 2000.

Criminal Procedure Code (V of 1898)---

---Ss. 540 & 439---Recalling witness for further cross-examination--­Accused filed application for recalling witness for further cross-examination and prosecution had no objection to the application---Application was allowed and Trial Court was directed to summon witness for further cross-­examination in the interest of justice.

Shahadat Awan for Applicant, Choudhry Muhammad Rafiq Rajorvi, A.A.-G.

Complainant in person.

2001 P Cr. L J 291

[Karachi]

Before Muhammad Ashraf Leghari, J

IZAT KHAN and 2 others- --Applicants

versus

THE STATE---Respondent

Criminal Bail Applications Nos.509 and 523 of 2000, decided on 2nd October, 2000.

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

----S. 497---penal Code (XLV of 1860), S.489-B---Bail---Accused were named in the promptly registered F.I.R. and their arrest was shown in the F.I.R. as well as in the Mashirnama---Huge counterfeit currency worth Rs.50,000 had been recovered from the possession of accused who had assembled at an abandoned and deserted place--Activities of the accused had attracted the ingredients of S.489-B, P.P.C.---Offences of such nature had increased at their high level affecting the society at large including the poor and illiterate persons specially of rural areas who had no full recognition of currency notes---Police had no enmity with the accused to implicate them in a false case---Bail was disallowed to accused in circumstances.

Muhammad Ashraf Batt v. The State 1995 SCMR 48; 2000 PCr.LJ 834; Barkat Ali v. The State Criminal Bail Application No.413 of 2000 and Imtiaz Ahmed and another v. The State PLD 1997 SC 545 ref.

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

----S. 497---Bail---Refusal of bail in cases not falling within the prohibitory clause---Principle---Court may decline bail to accused in offences even not falling under prohibitory clause of S.497(1), Cr.P.C., if there exist recognized exceptional circumstances.

Ghulam Muhammad Khan Durrani far Applicants (in Criminal Bail Application No.509 of 2000).

Shamsuddin Kobhar for Applicants (in Criminal Bail Application No.523 of 2000).

Sher Muhammad Shar, Asstt. A.-G. for the State.

2001 P Cr. L J 301

[Karachi]

Before Muhammad Ashraf Leghari, J

JUMO and 2 others---Applicants

versus

SALEEM SHAH---Respondent

Criminal Miscellaneous Application No. 143 and Miscellaneous Application No.985 of 1999, decided on 9th October, 2000.

Penal Code (XLV of 1860)---

----Ss. 447, 506(ii), 337-F(i), 147, 148, 149, 182 & 211---Crimina Procedure Code (V of 1898), S.561-A---Quashing of proceedings--. Complainant had filed the complaint after eleven years of the occurrence--. Injuries allegedly caused by kicks and fist blows were not supported by medical evidence ---F.I.R. had been disposed of in B Class---Complaint it such circumstances could not yield any fruitful result---Matter being sub judice in criminal revision before the Sessions Court, proceedings under Ss. 182 & 211, P.P.C. also could not be initiated against the complainant till the final decision of the revision petition---Continuity of the proceedings is both the cases were, therefore, an abuse of process of the Court and the same were quashed accordingly.

A.R. Farooq Pirzada for Applicants.

Abdul Rasheed Kalwar for Respondent.

Sher Muhammad Shar, A.A.-G.

2001 P Cr. L J 307

[Karachi]

Before Faiz Muhammad Qureshi, J

RAB DINO---Applicant

versus

S.D.M. and others---Respondents

Criminal Miscellaneous Application No.235 of 2000, heard on 24th October, 2000.

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

----Ss. 110/55 & 561-A---Quashing of proceedings-=-Allegations made against the accused by the S.H.O. in his report were not only vague but of general nature---Record did not suggest that the accused was a thief by habit or he retained the stolen property and harboured dacoits or was a terror for the public---Single case allegedly registered against the accused under S 5-A of the Gambling Act had no relevance with S.110, Cr.P.C.---Station House Officer had only cited himself as a witness in his report against the accused--­Proceedings pending before the Magistrate against the accused amounted to abuse of the process of law and the same were quashed accordingly.

Sodho v. The State 1991 PCr.LJ 340 and Momin Khan Afridi v. The State 1991 PCr.LJ 1325 ref.

Muhammad Saleh Bhutto for Applicant.

Nidamuddin Brohi for the State.

Date of hearing: 24th October, 2000.

2001 P Cr. L J 311

[Karachi]

Before Faiz Muhammad Qureshi, J

ARIZ MUHAMMAD alias AJOO---Appellant

versus

THE STATE---Respondent

Criminal Jail Appeal No.3 of 1999, heard on 24th October, 2000.

Penal Code (XLV of 1860)---

----Ss. 302/34---Sentence---Accused had served out about 23 years of. his sentence including the period of remission earned by him---State Counsel had no objection to the reduction of the sentence of imprisonment for life awarded to ~ the accused by the Trial Court to the imprisonment already undergone by him which was sufficient to meet the ends of justice---Appeal of accused was accepted to the extent shown above accordingly.

Mumtaz Ali Siddiqui for Appellant.

Nidamuddin Brohi for the State.

Date of hearing: 24th October, 2000.

2001 P Cr. L J 318

[Karachi]

Before Mushir Alam, J

ABDUL MAJEED---Appellant

versus

THE STATE--Respondent

Criminal Appeal No. 115 and Miscellaneous Applications Nos. 1068, 1135 and 1136 of 2000, decided on 24th October, 2000.

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

----S. 345---Compounding of offence---Offence can be compounded between a Muslim end non-Muslim and even between non-Muslims inter se--­Section 345, Cr.P.C. under which compounding of offence is regulated does not provide for any competence or otherwise of a person entering into a compromise, nor does it restrict a Muslim or a. non-Muslim from entering into such compromise---Only qualification for entertaining such application is the compound ability of the offence and nothing more.

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

----S. 345---Penal Code (XLV of 1860), S.320---Compounding of offence between a Muslim and non-Muslims---Accused was a Muslim and the legal heirs of the deceased were non-Muslims who had given affidavits whereby they had compounded the offence forgiving the accused and foregoing the -Qisas and Diyat---Objection raised by prosecution was that since parties were Muslims and non-Muslims no compromise could be effected between them--­Validity ---Compound ability of the offence was the only qualification under 5.345, Cr.P.C. for entertaining the application of compromise and it did not restrict a Muslim or a non-Muslim from entering into a compromise--­Compounding of offence, therefore, could be effected between a Muslim and non-Muslim and even between non-Muslims inter se---Compromise between the parties was consequently accepted and the accused was acquitted accordingly.

Allah Bachayo Soomro for Appellant. Ali Azhar Tunio, Asstt. A.-G. for the State.

2001 P Cr. L J 321

[Karachi]

Before Muhammad Ashraf Leghari, J

MUHAMMAD YOUSUF---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.504 of 2000, decided on 6th October, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement, of Hudood) Ordinance (VII of 1979), Ss.10(2) & 11---Bail, grant of ---F.I.R. had been lodged after an inordinate delay of 46 days without any satisfactory explanation ---Abductee had remained with the principal accused for quite a long time and had given Birth to a child---No allegation of Zina-bil-Jabr had been made against the accused who was in jail for more than six months---Involvement of accused in the alleged abduction of the abductee could be established at the time of trial ---Abductee according to the record appeared to have gone with the principal accused on her own accord---No reasonable grounds at such stage were available to believe the accused being guilty of the offence covered by the prohibitory clause of S.497(1), Cr.P.C.---Accused was admitted to bail accordingly.

Amanullah Shaikh for Applicant.

Ghulam Sarwar Korai for the State.

2001 P Cr. L J 325

[Karachi]

Before Muhammad Ashraf Leghari, J

Haji LAL BUX---Appellant

versus

ALTAF HUSSAIN and 4 others---Respondents

Criminal Acquittal Appeal No.48 of 1999, decided on 2nd October, 2000.

Penal Code (XLV of 1860)---

----Ss. 324/34---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal ---F.I.R. had been recorded after 16 days of the incident--­No eye-witness of the occurrence was examined in the case---Complainant had not supported the contents of the F.I.R.---Dispute was between the real

brothers over agricultural land---Accused had faced the agony of trial for nine years---Impugned judgment of acquittal was neither illegal nor based on misreading of evidence leading to miscarriage of justice---Appeal against acquittal of accused by Trial Court was dismissed in circumstances.

Yar Muhammad and others v. The State 1992 SCMR 96 ref.

Mumtaz Ali Siddiqui for Appellant.

Ghulam Sarwar Korai for Respondents.

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

2001 P Cr. L J 331

[Karachi]

Before Ghulam Nabi Soomro and Anwar Zaheer Jamali, JJ

Syed ASIF ALI ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.284 of 2000, decided on 27th October, 2000

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.51(1)--­Grant of bail when barred---Section 51(1) of the Control of Narcotic Substances Act, 1997 bars the grant of bail to an accused where Trial Court has framed the charge against him for an offence under the Act which is punishable with death.

Gulzaman v. The State 1999 SCMR 1271; Mehboob-ur-Rehman v. The State 2000 PCr.LJ 569 and The State v. Mobin Khan 2000 SCMR 299 ref.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss.6/7/8/9/12/14/15---Penal Code (XLV of 1860), Ss.120-B/471/34--­Bail---Trial Court had framed the charge, against the accused for an offence punishable with death under the Control of Narcotic Substances Act, 1997, S.51(1) of which had barred the grant of bail to him---One prosecution witness had also been examined in the case---Bail was refused to accused in circumstances.

Gulzaman v. The State 1999 SCMR 1271; Mehboob-ur-Rehman v. The State 2000 PCr.LJ 569 and The State v. Mobin Khan 2000 SCMR 299 ref.

I.A. Hashmi for Applicant. Shoaib M. Ashraf, Special Prosecutor ; or A.N.F.

2001 P Cr. L J 338

[Karachi]

Before Ghulam Rabbani and Ata-ur-Rehman, JJ

ALI MUHAMMAD PANHWAR---Appellant

versus

THE STATE---Respondent

Criminal Appeals Nos.98, 65 and Miscellaneous Application No.856 of 2000, decided on 27th September, 2000.

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

----S. 9(b)---Sentence---Sentence awarded to accused should be proportionate to the quantity of narcotics recovered from him.

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

----S. 9(b)---Sentence---Trial Court had punished the accused with two years' R. I. for recovery of 110 grams "Charas" and 5 grams heroin from him which was out of proportion---Sentence of accused was reduced to one year's R.I. in circumstances.

Zahoor A. Baloch for Appellant.

Ali Azhar Tunio A.A. -G.

ORDER

2001 P Cr. L J 344

[Karachi]

Before Ghulam Nabi Soomro, J

MANZOOR ALI alias MUMTAZ ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. S-488 and Miscellaneous Application No. 1071 of 2000, decided on 17th November, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.380/457---Bail, grant of---Name of the accused, no doubt, was mentioned in the F.I.R., but the same having been lodged after inordinate delay of 34 hours did not have much sanctity--­Case was pending trial before a Magistrate and as such sentence for more than three years could not be visualized---Accused was admitted to bail in circumstances.

PLD 1995 SC 34 ref.

Muhammad Saleem Jessar for Applicant.

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

2001 P Cr. L J 350

[Karachi]

Before Faiz Muhammad Qureshi, J

MUHAMMAD SIDDIQ---Appellant

versus

Mst. MUNAWAR SULTANA and another---Respondents

Criminal Acquittal Appeal No.32 of 2000, decided on 18th October, 2000.

Contempt of Court Act (LXIV of 1976)---

----Ss. 3/4---Criminal Procedure Code (V of 1898), S.417(2-A)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10, 11 & 16--­Constitution of Pakistan (1973), Art.203-DD(1)---Appeal against acquittal--- Proper forum ---Contemner had been pardoned by the Trial Court with a warning to be careful in future---Contempt proceedings before the Trial Court were between the Court and the contemner and the appellant being not an aggrieved person within the meaning of S.417(2-A), Cr.P.C. had no locus standi to file the appeal---Appeal filed by the appellant against acquittal of contemner by Trial Court in contempt proceedings was not maintainable in High Court---Appellant, however, in circumstances, could file revision before Federal Shariat Court.

Syed Ghulam Ali ,Shah v. Nazar Muhammad Shafi and another 1978 PCr. LJ 759 and West Pakistan Water and Power Development Authority through its Chairman v. Chairman, National Industrial Relations Commission PLD 1979 SC 912 ref.

Ghulam Sarwar Korai fot Appellant.

Mumtaz Ali Siddiqui for the State J.

S. Mushtaq Hussain Shah: Amicus curiae.

2001 P Cr L J 359

[Karachi].

Before Anwar Zaheer Jamali, J

USMAN---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.105 of 2000, decided on 6th September, 2000.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/337-H(2)/34---Bail--­Accused had been nominated in a promptly lodged F.I.R.---Eye-witnesses had supported the prosecution version in their statements recorded under Ss.161 & 164, Cr.P.C.---Accused had allegedly reached the place of occurrence armed with K.K. alongwith other accused persons and used his weapon to help other accused to escape after commission of the crime--­Recovery of 15 empties of K.K. from the spot had supported the role of firing attributed to accused---No motive for false implication of accused appeared in the case---Offence, prima facie, had been committed in an organised and preplanned manner and such trend of organised crimes could only be discouraged by taking a more watchful and careful view of the matter even at bail stage---Reasonable grounds were available on record to believe that the accused had played his pre-determined role and he was sharing common intention with other accused in the commission of the crime which fell within the prohibitory clause of S.497(1), Cr.P.C. disentitling him to the concession of bail---Bail was declined to accused accordingly.

Rehmat Ali v. The State 1987 PCr.LJ 1018; Muhammad Sadiq and another v. The State 1996 SCMR 1654; Muhammad v. The State 1998 SCMR 454; Shafi Muhammad, v. The State 1999 PCr.LJ 890; Dhani Bux and others v. The State 1989 SCMR 239 and Iqbal v. The State 1982 SCMR 84 ref.

(b) Precedent---

----Case-law referred in criminal cases, specially in bail matters, has no rule of universal application which can be pressed into service in all cases--­Passing of an appropriate order, therefore, would necessarily depend on the facts and circumstances of each case.

Muhammad Iqbal Mahar for Applicant.

Awan Rehmatullah Nadeem for the Complainant.

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

2001 P Cr. L J 366

[Karachi]

Before Faiz Muhammad Qureshi, J

SUHRAB and 3 others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.234 of 2000, decided on 27th October, 2000.

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

----S. 497---Penal Code (XLV of 1860), S.302---Bail---Abscondence of accused---Effect---Unexplained noticeable abscondence of accused disentitles him to concession of bail notwithstanding the merits of the case.

Awal Gul v. Hazar Khan and others PLD 1985 SC 402 ref.

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

----S. 497---Penal Code (XLV of 1860), S.302---Bail---Delay in lodging the F.I.R. had been explained---Accused had allegedly murdered a young boy of 26/27 years of age---Although no specific role was assigned to accused in the F.I. R. yet the deceased was seen in their company by the witnesses and he was found dead next morning lying in a fish pond ---Abscondence of accused for three months after the incident alone had disentitled them to concession of bail notwithstanding the merits of the case---Bail was refused to accused in circumstances.

Qaimuddin and 3 others v. The State 1974 PCr.LJ 487; Muhammad Akbar v. The State 1977 PCr.LJ 540; Rafique Ahmed and others v. The State 1984 MLD 1411; Mashooq Ali v. The State 1994 PCr.LJ 1335; Sher Ali alias Sheri v. The State 1998 SCMR 190; Awal Gul v. Hazar Khan and others PLD 1985 SC 402 and Lal Muhammad v . The, State 1990 SCMR 315 ref.

Mujahid Hussain Rajput for Applicants.

Mumtaz Ali Siddiqui for the State.

2001 P Cr. L J 410

[Karachi]

Before Rasheed Ahmed Razvi, J

IMTIAZ ALI and 2 others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No. 177 of 1999, decided on 14th October, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.302/324/451/452/34---Bail, grant of---Identification test of accused was conducted after a delay of eleven days which had damaged its evidentiary value---No specific role was assigned to accused and no recovery was effected from them---Case against accused in circumstances required further inquiry as contemplated by S.497(2), Cr.P.C., making them entitled to concession of bail---Accused were admitted to bail accordingly.

Hussain Bux v. The State 1994 PCr.LJ 508; Zahid v. The State 1998 PCr.LJ 45; Muhammad Nasir v. The State 1999 MLD 3253 and Akhtar Muhammad v. The State 1987 PCr.LJ2423 ref.

Azizullah Buriro for Applicants.

Inayatullah Morio for the State.

2001 P Cr. L J 465

[Karachi]

Before Muhammad Ashraf Leghari, J

MOHABAT---Petitioner

versus

THE S.S.P., SUKKUR and others---Respondents

Constitutional Petition No.S-440 of 1992, decided on 26th October, 2000

Criminal Procedure Code (V of 1898)---

----S. 154---Pakistan Army Act (XXXIX of 1952), Ss.2 & 7---Penal Code (XLV of 1860), S.139---Constitution of Pakistan (1973), Art.199131---Constitutional petition---Registration of case against persons subject to Pakistan Army Act, 1952---High Court as well as the subordinate Courts created under general or local law had no jurisdiction to try and punish the persons subject to the Pakistan Army Act, 1952 as the same was barred by Ss. 2 & 7 of the Pakistan Army Act, 1952, S.139, P. P.C. 'and Art. 199(3) of the Constitution---Constitutional jurisdiction of High Court was a discretionary one and was intended to administer the cause of justice and not to promote and encourage injustice---Exercise of Constitutional jurisdiction in' the matters involving factual controversies between the parties was not justified---Record did not show that the concerned Authorities had been moved for action against the members of the law enforcing agencies who were subject to Pakistan Army Act, 1952---Avernients made in the petition and the pleas raised in the comments filed by the respondents were extremely controversial and disputed---Constitutional petition being misconceived was dismissed.

Nizamuddin Baloch for Petitioner.

Sher Muhammad Shar, A.A.-G. for Respondents.

2001 P Cr. L J 479

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

MUHAMMAD ISHTIAQUE alias GUTKO---Applicant

versus.

THE STATE---Respondent

Criminal Revision Application No.7 of 2000, decided on 14th November, 2000.

Criminal Procedure Code (V of 1898)---

----Ss. 540 & 439---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4---Control of Narcotic Substances Act (XXV of 1997), S.9(b)---Re­ calling prosecution witnesses for examination ---Revisional jurisdiction--­-Prosecution witnesses were cross-examined by one who was neither an Advocate on the day and date when he filed his power of attorney nor was competent to appear as such and conduct the cross-examination--­-Said person did not conduct cross-examination properly which had caused serious prejudice to the accused---High Court in exercise of its revisional jurisdiction directed Trial Court to re-call/re-examine prosecution witnesses and to provide full opportunity of cross-examination to the accused.

Nizamuddin Baluch for Applicant.

Maqbool Ahmed Awan, Advocate.

Shaikh Abdul Ghani, Dy.A.-G.

Faizullah Korai, Special Public Prosecutor.

Sher Muhammad Shar, A.A.-G.

ORDER

2001 P Cr. L J 490

[Karachi]

Before Muhammad Ashraf Leghari, J

RUSTAM and 2 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.23 of 1998, decided on 3rd November, 2000

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

----Ss. 302(b) & 34---Appreciation of evidence ---Complainant had supported his version as narrated by him in the F.I.R. and his ev4dence got support from the testimony of other eye-witnesses---Eye-witnesses had stated in clear terms that accused fired at the deceased who after sustaining injuries died on the spot---Evidence of eye-witnesses got support from rpedical evidence--­Witnesses had no animosity with the accused and had no reason to implicate the accused in the false case---Incident was of day time and pies were known to each other---Accused had volunteered to produce, the pistol used by him in the commission of the offence---Empties were recovered from the Wardat and F.I.R. wherein accused were nominated was promptly recorded ---Mushir of Wardat had supported the recovery of weapon, blood and empties from the place of Wardat---Prosecution case against accused having been proved beyond any shadow of doubt, they were rightly convicted and sentenced.

(b) Criminal trial---

---- Consideration of complicity of instigator ---Venefit of doubt--­-Entitlement---Complicity of instigator was to be considered carefully and the Courts of criminal jurisdiction could sift the grain from the chaff and acquit the accused as a matter of abundant caution who was entitled for benefit of doubt without impeaching or impairing the credibility of evidence of witnesses against the other accused against whom overwhelming evidence was available and their involvement was established without any doubt.

Abdul Aziz and another v. The State 1993 SCM R 544 ref.

Muhammad Daud Baloch for Appellants.

Sher Muhammad Shar, A.A.-G. for the State.

Manzoor Ahmed Junejo for the Complainant.

Date of hearing: 23rd October, 2000.

2001 P Cr. L J 500

[Karachi]

Before Muhammad Roshan Essani, J

AHSAN ALI and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.638 of 2000, decided on 13th November, 2000.

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

----S. 498---Penal Code (XLV of 1860), Ss.302/34---Pre-arrest bail, grant of---Names of the accused appeared in the promptly lodged F. I. R. ---Accused were alleged to have entered in the house of complainant and killed deceased on the ages old pretext/notion of "Kari" in broad daylight---Specific role of causing death of deceased having been ascribed to the accused, they were not entitled to pre-arrest bail.

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

----S. 498---Pre-arrest bail, grant of---Principles---Accused had to show that case against him was cropped up due to political wire-pulling; that his arrest was tainted with mala fide and ulterior motives such as humiliation and unjustified harassment at the hands of police with intention to cause irreparable injury to his reputation and liberty.

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

----Ss. 497 & 498---Grant of bail---Procedure---Court, for the grant of bail had to make tentative assessment of the evidence and any elaborate sifting of evidence was not warranted by law---Bail applications were to be disposed of strictly according to law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence ---Filing of affidavits by the complainant and prosecution witnesses in support of the pre-arrest bail application of the accused was deprecated and same was found to be of no avail for grant of pre-arrest bail to the accused.

Naseer Ahmed v. The State PLD 1997 SC 347 ref.

Amanullah G. Malik for Applicants.

Sher Muhammad Shar, Asstt. A.-G., Sindh for the State.

2001 P Cr. L J 514

[Karachi]

Before Muhammad Moosa K. Leghari, J

ZAHID KHAN and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No. 1081 and Miscellaneous Application No. 1803 of 2000, decided on 22nd November, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.392/397/34---Bail, grant of--Accused persons continuously remained in the jail for a period of two years from their arrest end the trial had not concluded---Delay in the trial was not attributable to the accused---Accused, in circumstances, could not be deprived of their liberty merely because they were involved in two other offences or that they were dangerous or hardened criminals---Accused were admitted to bail.

Abdul Latif and another v. The State 1999 MLD 1300; Abdul Wahad Junejo v. The State 1997 PCr.LJ 1808; Zahid Hussain Shah v. The State PLD 1995 SC 49; Haji Javed Ahmed and another v. The State PLD 1997 Kar. 156 and Muhammad Rafiq v. The State 1997 SCMR 412 ref.

Ajab Khan Khattak for Applicants.

Sharafat Ali Khan for the State.

2001 P Cr. L J 521

[Karachi]

Before Muhammad Ashraf Leghari, J

NAWAZ ALI and others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.486 of 2000, decided on 2nd November, 2000.

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

----Ss. 3 & 4---Jurisdiction of Special Court---Scope---Mere use of weapon of prohibited bore, was sufficient to attract the jurisdiction of Special Court---Question of jurisdiction of Special Court or Ordinary Court, however, could be determined on the basis of F.I.R. and other material produced by prosecution at the time of presentation of challan---Non­recovery of weapon (Kalashnikov) could not justify conclusion that the same was not at all used---Eye-witnesses' account was material in that respect.

Allah Din and 18 others v. The State and another 1994 SCMR 717; Azhar Hussain and others v. Government of Punjab and others 1992 PCr.LJ 2308; Muhammad Shareef v. The State 1992 PCr.LJ 1219 and Jehangir v. The State and 4 others 1999 PCr. LJ 476 ref.

Awan Rehmatullah Nadeem for Applicants.

Gul Balm Korai for the State.

2001 P Cr. L J 541

[Karachi]

Before Muhammad Moosa K. Leghari, J

NAEEM and another---Applicants

versus

THE STATE---Respondent

Miscellaneous Applications Nos. 1180 and 1027 of 2000 in Criminal Appeals Nos.95 and 96 of 1999, decided on'15th November, 2000.

Criminal Procedure Code (V of 1898)---

----S. 426(1-A)(b)---Penal Code (XLV of 1860), S.392/34---Suspension of sentence---Conviction of accused did not exceed seven years and appeals of accused against their conviction had not been decided despite one year had passed since their conviction---Execution of sentence passed against accused was suspended and they were released on bail.

Muhammad Yaqoob and others v. The State 1991 SCMR 1459; Sikandar alias Dhuni and another v. The State 1995 PCr.LJ 1522 and Idrees v. The State PLD 1997 Kar. 361 ref.

Taza Gul Khatak for Applicants (in Criminal Appeal No.95 of 1999).

Jawed Akhtar for Appellants (in Criminal Appeal No.96 of 1999).

Sharafat Ali Khan for the State.

2001 P Cr. L J 544

[Karachi]

Before Muhammad Roshan Essani, J

PARVEZ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.542 of 2000, decided on 6th November, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/201/404/34---Bail, grant of--­Complainant recovered dead body from water of an unknown person with severed head---No claimant of dead body having come forward, same was buried after completing the codal formalities---No evidence was available on record against the accused who was alleged to have hired the van of the deceased alongwith another person---Van of the deceased was also not recovered from the possession of accused---Case against the accused required further enquiry---Accused was entitled to bail, in circumstances.

Ghulam Mustafa Sahito for Applicant/Accused.

Sher Muhammad Shar, Asstt. A.-G. for the State

2001 P Cr. L J 551

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

ALLAH RAKHIO and others---Applicants

versus

THE STATE---Respondent

Criminal Miscellaneous Application No.95 of 2000, decided on 31st October, 2000.

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

----S. 561-A---Penal Code (XLV of 1860), Ss.447/147/149/109---Quashing of proceedings ---F.I.R. was divided in two parts---Complainant in his initial application did not implicate the accused, but he did so in his subsequent statement---Date of incident as well as the number of accused mentioned by the complainant in his direct complaint were different from the same given in the F. I. R. ---Complainant had also filed a civil suit regarding the same subject-matter which clearly showed that he had made an attempt to circumvent the civil remedy into a criminal case---Further proceedings before the Magistrate on the basis of the impugned F.I.R. would be sheer wastage of time and abuse of the process of the Court in circumstances and the same were quashed accordingly.

M.S. Khawaja v. The State PLD 1965 SC 287 and Meraj Khan v. Gul Muhammad 2000 SCMR 122 ref.

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

----S. 561-A---Inherent powers of High Court---"Abuse of process of any Court"---Connotation---Perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about delay or engagement of the machinery of justice in an operation from which no result in furtherance of justice can accrue or similar perverse results, amount to abuse of the process of Court.

M.S. Khawaja v. The State PLD 1965 SC 287 ref.

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

----S. 561-A---Inherent powers of High Court---Abuse of the process of law­--When no case is made out on the basis of facts admitted and patent on record, then allowing the prosecution to continue with the trial would amount to abuse of process of law.

Meraj Khan v. Gul Muhammad 2000 SCMR 122 ref.

S. Aslam Jafferi for Applicants.

Sher Muhammad Shar, Asstt. A.-G. for the State.

Date of hearing: 13th September, 2000.

2001 P Cr. L J 568

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

Haji KHAN KHARO---Appellant

versus

MUHAMMAD SHAREEF and 2 others---Respondents

Criminal Acquittal Appeal No. 17 and Miscellaneous Application No.968 of 2000, decided on 14th November, 2000.

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

----S. 7---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Appeal against acquittal of accused had been filed by the complainant beyond the prescribed period of limitation of 30 days and the delay had neither been explained in the memo. of appeal nor any separate application had been filed for the said purpose---Valuable rights had been created by the limitation in favour of the accused and the other party having slept over its right could not claim the relief beyond the period of limitation---Accused had been acquitted by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, which being a special law had overridden the general law---Appeal against acquittal of accused could be filed under S.7 of the said Act by a person appointed by the Provincial Government and not by a person under S.417(2-A), Cr.P.C. which could not be equated with S.7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975---Appeal, therefore, was not maintainable and the same was dismissed accordingly.

Muhammad Ali Soomro for Appellant.

2001 P Cr. L J 575

[Karachi]

Before Muhammad Moosa K. Leghari, J

Mst. SHAHNAZ PARVEEN---Applicant

versus

ASADULLAH and another---Respondents

Criminal Miscellaneous Application No.308 and Miscellaneous Application No. 1454 of 2000, decided on 22nd November, 2000.

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

----S. 491---Habeas corpus petition---Custody of minor---Minor being below three years of age required attention, love and affection of his mother (petitioner), whereas his father (respondent) was residing with his second wife and two children from her---Respondent who was an unreliable person by his conduct could not look after the welfare of the minor---Petitioner was an educated lady doing a lucrative job in a well-known Bank and she was residing in her own house and had all the means to maintain and look after the child---Respondent was a police official, who had snatched the minor from the custody of the petitioner, and had made all the efforts for his service in the petition futile unless bailable warrants were issued against him and rule nisi was executed through S.S.P. concerned---Petitioner being mother of the minor had also the right of his Hizanat under the Islamic law--­Minor was ordered to be given in the custody of the petitioner in circumstances, of course subject to the ultimate determination of the same by the Guardian Judge.

1992 CLC 735; PLD 1994 Pesh. 143; 1998 PCr.LJ 1027; 1998 PCr.LJ 140; 1993 PCr.LJ 1097 and Nisar Muhammad and another v. Mst.

Sultan Zareen PLD 1997 SC 852 ref.

Nayyar Ziauddin for Applicant.

Syed Hassan Ali for Respondent No. 1.

Sharafat All for the State.

2001 P Cr. L J 588

[Karachi]

Before Zia Perwez, J

MUHAMMAD SHAFI MANSOORI---Applicant

versus

THE STATE---Respondent

Bail Application Nos. 46 and 1147 of 2000, decided on 17th November, 2000.

(a) Interpretation of statutes---

----Principle---Statute had to be read as a whole---What was enacted had to be given full effect and extraneous considerations could not be employed to make it redundant or to detract it from the meaning which it conveyed---Law could not be stretched to favour an accused.

Umar Draz Cheema v. Nazar Muhammad and others 1980 SCMR 156 ref.

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

----S. 497---Emigration Ordinance (XVIII of 1979), Ss. 18 & 22---Bail, grant of---Criteria---Provisions of S.497, Cr.P.C. had provided that a person accused of any non-bailable offence would not be released on bail if reasonable grounds existed for believing that he was guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years---Offence against accused under Ss.18 & 22 of Emigration Ordinance, 1979 being non-bailable and punishable with imprisonment which could extend to fourteen years, accused could not be granted bail.

Muhammad Riaz v. The State PLD 1986 Kar. 567 and Gul Khan v. The State PLD 1982 Kar. 1011 ref.

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

----S. 497---Bail, grant of---Principle---If the offence against accused was punishable with imprisonment for life or ten years, the bar contained in S.497, Cr.P.C. would be attracted without regard to the power of the Court trying the case.

Gul Khan v. The State PLD 1982 Kar. 1011 ref.

Anwar Hussain for Applicant (in Criminal Bail Application No. 1146 of 2000).

Shaukatullah Khan for Applicant (in Criminal Bail Application No. 1147 of 2000).

Ziauddin Nasir, Standing Counsel for the State.

2001 P Cr. L J 594

[Karachi]

Before Muhammad Roshan Essani, J

ABDUL MALIK ---Appellant

versus

SHABIR AHMED and 7 others---Respondents

Criminal Acquittal Appeal No.24 of 1999, decided on 6th November, 2000.

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

----Ss. 337-A(i)/337-F(i)/148---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Case was an outcome of hostility existing between the parties---Prosecution had not examined any independent witness of the occurrence---Ocular evidence and medical evidence were in conflict with each other---Number of accused involved in the case arid role attributed to them did not commensurate with the number of injuries mentioned in the medical certificate---Prosecution evidence suffered from glaring contradictions and material discrepancies---Appeal against acquittal of accused was dismissed in circumstances.

Yar Muhammad and others v. The State 1992 SCMR 96 ref.

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

----Ss. 337-A(i)/337-F(i)/148---Appreciation of evidence---Benefit of doubt---Each and every circumstance giving benefit of doubt to the accused is not necessarily to be mentioned in the judgment---Even a single circumstance which creates doubt in the mind of a reasonable and prudent person is sufficient for acquittal.

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

----S. 417---Penal Code (XLV of 1860), Ss.337-A(i)/337-F(i)/148---Appeal against acquittal---Principle---Presumption of double innocence is always attached to the accused in an appeal against acquittal and considerations for appeal against acquittal are quite different from those in an appeal against conviction---Courts are always slow in setting aside the order of acquittal--­However, Appellate Court can intervene in the matter where gross injustice is done by the Trial Court by misreading or mis-appreciating evidence or by acting without jurisdiction.

Yar Muhammad and others v. The State 1992 SCMR 96 ref.

Azhar Hussain for Appellant.

Sher Muhammad Shar, A.A.G. for the State.

2001 P Cr. L J 601

[Karachi]

Before Muhammad Roshan Essani, J

Soofi ABDUL QADIR---Applicant

versus

ANWAR alias PAPOO and 7 others---Respondents

Criminal Revision No.94 of 1999, decided on 30th October, 2000.

Criminal Procedure Code (V of 1898)---

----Ss. 200, 203 & 439---Penal Code (XLV of 1860), Ss.220 & 500--­Dismissal of complaint---Trial Court after holding preliminary enquiry, dismissed the complaint without assigning any reason for the dismissal--­Prerequisite condition was that Court while dismissing the complaint should assign reasons which could appeal to a reasonable and prudent mind---Case was remanded with direction to hold further inquiry into the complaint and to pass a legal and appropriate order after assigning reasons in accordance with law.

Applicant in person.

Sher Muhammad Shar, A.A.G.

2001 P Cr. L J 611

[Karachi]

Before Muhammad Roshan Essani, J

GHULAM HUSSAIN ---Applicant

versus

THE STATE---Respondent

Criminal Revision Application No.74 of 2000, decided on 14th November, 2000.

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

----S. 203---Cognizable and non-compoundable offence---Dismissal of case for non-prosecution---Case arising out of the cognizable and non­-compoundable offences could not be dismissed for non-prosecution.

(b) Administration of justice---

----Principle---Courts while imparting/administering the justice had to avoid technicalities.

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

----S. 203---Prevention of Corruption Act (II of 1947), S.5(2)---Penal Code (XLV of 1860), S.161---Restoring case after dismissal for non-prosecution­--Trial Court, on filing direct complaint by complainant, held preliminary enquiry, took cognizance of case and after completing all the codal formalities framed charge against the accused---Trial Court dismissed complaint for non-prosecution, -but on the application of complainant restored the same---Original order with regard to taking the cognizance of case being not without jurisdiction, order restoring complaint would not suffer from any illegality or impropriety---Contention that Court had no jurisdiction to restore the complaint to its original position and only remedy available to complainant was to file the fresh complaint was repelled being misconceived.

Subramania Kandar v. Ramaswami Kandar AIR 1949 Mad. 154 ref.

Mushtaq Ahmed Leghari for Applicant.

Sher Muhammad Shar, Asstt. A.G. for the State.

2001 P Cr. L J 614

[Karachi]

Before Muhammad Roshan Essani, J

MUHAMMAD AMEEN---Applicant

versus

THE STATE---Respondent

Criminal Bail Applications Nos.538 and 539 of 2000; t1eard on 30th October, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.11/16---Bail---Inordinate delay of 26 days in lodging the F.I.R. was not plausibly explained---Occurrence had taken place at night, but no source of light for identification of accused was disclosed in the F.I.R.--­Statement of prosecutrix was recorded after an unexplained delay of three days---Out of eight persons implicated in the case five persons had been found innocent in police investigation---No mark of violence was found on the body of the prosecutrix---Prosecutrix had not even complained to any one about the alleged incident on the bus stop--­Case against the accused in the circumstances required further inquiry as contemplated under S.497(2), Cr.P.C.---Accused were admitted to bail accordingly.

Abdul Lateef and another v. The State 1997 PCr.LJ 1794 ref.

Saifuddin Shah for Applicant.

Sher Muhammad Shah Asstt. A.G. for the State.

2001 P Cr. L J 619

[Karachi]

Before Muhammad Roshan Essani, J

Mst. KHANZADI --- Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.160 of 2000, decided on 10th November, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/201/202/506---Bail, grant of ---F.I.R. was lodged with considerable delay, but no plausible explanation for said delay was given in the F.I.R.---Case was that of two versions of the incident and motive for causing the death of the deceased had not been disclosed in the F.I.R.---Accused being a woman, her case was covered by Exception to proviso (1) to S.497, Cr.P.C.---Accused was no more required for the purpose of investigation---State Counsel had conceded to the grant of bail to the accused---Case against the accused necessitating further enquiry, pail was granted to accused.

S. Ali Aslam Jafferi for Applicant.

Ghulam Sarwar Korai for A.G. for the State.

2001 P Cr. L J 626

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

AKHTAR NAWAZ---Applicant

versus

NAZIR alias NAZIRA and another---Respondents

Criminal Miscellaneous Application No. 13 of 2000, decided on 1st November, 2000.

Criminal Procedure Code (V of 1898)---

---S. 497(5)---Penal Code (XLV of 1860), Ss.302/34---Cancellation of pre­-arrest bail---Enmity was already going on between the parties---No overt act had been attributed to the accused except that he had slapped the complainant---All the three brothers of the main culprit had been implicated in the case---Involvement of accused appeared to be mala fide and determination of the truth in the allegation against him was a matter of evidence---Trial Court after framing the charge had fixed the case for recording evidence---Petition for cancellation of bail was dismissed in circumstances.

Miran Bux v. The State and others PLD 1989 SC 347 ref.

Hidayatullah Abbassi for Applicant.

Nisar Ahmed Durrani for Respondent No. 1.

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

2001 P Cr. L J 649

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

TODO and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.596 of 2000, decided on 7th November, 2000.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/34---Overt act--­Connotation--- "Overt act" does not mean merely causing of injury---Entire facts and circumstances of the case are to be seen to find out if any overt act has been attributed or not to the accused.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/34 --- Bail --- F. I. R. was promptly lodged and the prosecution story contained therein was not unusual as the incident had taken place in a populated area---Accused armed with guns had accompanied co-accused to the place of occurrence who (co-­accused) had fired with his pistol at the head of the deceased and the accused had been aiming their guns towards the witnesses to prevent them from interference---Accused had, therefore, prima facie committed the offence in furtherance of common intention with co-accused---Bail was refused to accused in circumstances.

Muhammad Sarwar v. The State 1997 PCr.LJ 418 and 1999 SCMR 1230 distinguished.

1996 SCMR 1654 and 1999 SCMR 1360 ref.

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

----S. 497(5)---Cancellation of bail---Accused after having been once granted bail by a Court of competent jurisdiction is vested with a right which can be dislodged by a superior Court for very strong reasons only.

(d) Words and phrases---

--------“Overtact"---Connotation.

Abdul Sattar Kazi for Applicants.

Nisar Ahmed Durrani for the Complainant.

Anwar Ansari for the State.

2001 P Cr. L J 666

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

ZAMIR---Applicant

Versus

THE STATE---Respondent

Criminal Bail Application No.556 of 2000, decided on 14th November, 2000.

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

----S. 497---Penal Code (XLV of 1860), Ss.392/337-H(2)/215/34---Bail--­Accused armed with a Kalashnikov and his companions armed with lethal weapons had allegedly barged into the house of the complainant and snatched the valuables at gun point ---Kalashnikov and the robbed T. V. had been recovered from the possession of accused---Eye-witnesses in their statements recorded under S.161, Cr.P.C. had supported the prosecution version fully implicating the accused---Bail was .declined to accused in circumstances.

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

----S. 497---Bail---Assessment of evidence---Principle---Only tentative assessment of evidence is to be made and deeper evaluation of the same is not warranted by law for the purpose of bail.

Haji Shafi Muhammad for Applicant.

Sher Muhammad Shar, Asstt. A.G. for the State.

2001 P Cr. L J 683

[Karachi]

Before Muhammad Ashraf Leghari, J

WAZEER---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-204 and Miscellaneous Application No. 373 of 2000, decided on 1st June, 2000.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss.302/324/114/34---Pre-arrest bail---Counter-versions had been furnished by the parties in the F.I.Rs. lodged by them---Accused was not even mentioned to be present on the spot in the F.I.R. registered by the accused party---Injuries sustained by co­-accused had been suppressed by the complainant in his F.I.R. ---Accused was empty-handed and no overt act had been attributed to him---Kicks and fist blows allegedly caused by the accused to the complainant were not supported by medical evidence---Role played by the accused in the occurrence and his vicarious liability were the matters of further inquiry---Implication of accused in the case was with mala fide intention in order to humiliate him--­Prosecution in view of said contentions and circumstances had no objection to grant of bail to the accused---Interim pre-arrest bail granted to accused was confirmed in circumstances.

Yasin Khan E. Babar for Applicant.

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

2001 P Cr. L J 694

[Karachi]

Before Ghulam Nabi Soomro, J

ABDUL RAUF --- Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.316 of 2000, decided on 17th November, 2000.

Criminal Procedure Code (V of 1898)--

----S. 498---Penal Code (XLV of 1860), Ss.302/307/398/499/114---Pre­arfest bail---Accused who was a Sub-Divisional Police Officer had avoided and defied, due to his position, service of non-bailable warrants issued repeatedly against him in the case through superior police officials including the D.I.G. concerned and his conduct was highly contumacious which could not be ignored under any law or principle---Duty of the accused as compared to an illiterate rustic accused was far more great towards a Court of law--­Applicant being the main accused in the murder case, he was not even entitled to post-arrest bail---Pre-arrest bail was disallowed to accused in circumstances.

1984 PCr.LJ 1901; Muhammad Ramzan v. Zafarullah and another 1986 SCMR 1380; 1987 PCr.LJ 1336; Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182; Awal Gul v. Zawar Khan and others PLD 1985 SC 402 and 1998 SCMR 190 ref.

Shaikh Amanullah for Applicant.

Altaf Hussain Surahio for the State.

2001 P Cr. L J 701

[Karachi]

Before Ghulam Nabi Soomro and Syed Zawwar Hussain Jaffery, JJ

RAJIB and 2 others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.329 of 2000, decided on 14th November, 2000.

Criminal Procedure Code (V of 1898)--

----S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149/504---Bail--­Statement of the deceased recorded under S.161, Cr.P.C. would call for its determination as dying declaration at the time of trial and to go into it further and to explore the reason for such observation would amount to deeper assessment of evidence, at bail stage, which might prejudice the case of either party---Accused were armed at the time of incident and had made an ineffective firing ---Enmity existed between the parties---Case against accused required further inquiry into their guilt in circumstances---Accused were admitted to bail accordingly.

1996 SCMR 1654; 1996 SCMR 1125; 1998 SCMR 454; 1999 PCr.LJ 890; 2000 PCr.LJ 974; 1994 MLD 895 and Asmatullah. Khan v. Baghi Khan and another PLD 1988 SC 621 ref.

Ali Nawaz Ghanghro for Applicants.

Lachhmandas H. Sachedevani for the Complainant.

Altaf Hussain Surahio for the State.

2001 P Cr. L J 710

[Karachi]

Before Muhammad Ashraf Leghari, J

MUHAMMAD HASSAN and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.S-215 of 2000, decided on 30th May, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/34---Bail---Incident was an un-witnessed one---Witnesses of extra-judicial confession had not disclosed to anybody about the same which itself was a weak evidence requiring strong independent corroboration which was yet to be brought on record by the prosecution---Said witnesses appeared to have been set up in order to make out the prosecution case---Accused had been nominated in the end of the F.I.R. due to suspicion which however strong, could not take place of proof to warrant conviction on a capital charge---Accused at such stage did not appear to be guilty of the offence with which they stood charged---Bail to accused could not be withheld as a punishment simply because their case fell within the prohibitory clause of S.497(1), Cr.P.C.---Accused were admitted to bail in circumstances.

Jahangir and others v. The State 1996 PCr.LJ 283; Muhammad Hussain v. Afzal Ahmed and another 1995 SCMR 932; Ijaz Ahmed and another v: The State 1997 SCMR 1279; Hyder Jamal and another v. The State 1999 MLD 979; Rasool Bux Baloch v. Muhammad Wahid and 3 others 1992 PCr.LJ 2578 and Kabeer v. The State 1998 PCr.LJ 1311 ref.

Muhammad Ayaz Soomro for Applicant.

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

2001 P Cr. L J 719

[Karachi]

Before Ghulam Nabi Soomro, J

RAFIQUE---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.326 of 2000, decided on 3rd November, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/34---Bail---Accused was only alleged to have fired in the air while leaving the place of occurrence--­Six co-accused in the case had not been challaned for want of evidence and they had been placed in Column No.2---Bail was allowed to accused in circumstances.

Muhammad Haroon v. The State 1994 SCMR 2161; Mehmood Akhtar v. Haji Nazir Ahmed and 4 others 1995 SCMR 310; Muhammad v. The State 1998 SCMR 454 and Shahid v. The State 1994 SCMR 393; Barkha and another v. The State 1983 PCr.LJ 502; Mubarik Shah v. The State 1986 SCMR 1681 and Babar Masih v. The State 2000 MLD 1487 ref.

Naseer Ahmed Khan Lodhi for Applicant.

Sarfraz Khan Jatoi for the Complainant.

G.A. Shahani, Addl. A.G., Sindh for the State.

2001 P Cr. L J 730

[Karachi]

Before Amanullah Abbasi, J

ANWAR ZADA --- Applicant

versus

THE STATE through F. I. A. S. B. C., Karachi---Respondent

Criminal Bail Applications Nos. 1053, 1096 and 988 of 1998, decided on 14th December, 1998.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.409/420/109---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, grant of---Investigation was completed and the accused were no more required for investigation---Case against .the accused, prima facie, was though made out but bail could not be withheld as a punishment---Bail was granted to the accused.

Muhammad Jamil and Shoukat Hayat for Applicant (in Criminal Bail Application No. 1053 of 1998).

M. Janan Khattak for Applicant (in Criminal Bail Application No. 1096 of 1998).

Shoukatullah Khan Bettani for Applicant (in Criminal Bail Application No.988 of 1998).

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

2001 P Cr. L J 845

[Karachi]

Before S.A. Rabbani and Muhammad Ashraf Leghari, JJ

AMIN alias MUHAMMAD AMIN BROW‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Jail Appeals Nos.D‑70 (Larkana) and 67 (Sukkur) of 1994 and

D‑74 of 2000 (Karachi)), decided on 15th October, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence ‑‑‑F.I.R. was delayed by about nine hours, but no explanation was put forth by the complainant for the delay‑‑­Prosecution witnesses were near relatives of the complainant and were interested‑‑‑Testimony of said witnesses was not credible to carry conviction of the accused in such heinous offence especially when their interested and inimical evidence was not corroborated by any circumstantial evidence ‑Ocular evidence was in conflict with medical evidence‑‑‑Empties allegedly taken in possession from the scene of offence had neither been sent to the expert nor any relevant report was produced by the prosecution‑‑‑Incident was unseen and story was built up after due deliberation and consultation and presence of alleged eye‑witnesses was doubtful‑‑‑Motive of occurrence was not proved positively by examining any evidence in that context‑‑‑Weapon from which the empties were discharged was not recovered and empties taken from the Wardat did not render any corroboration‑‑‑Prosecution having failed to prove the case against the accused, conviction and sentence awarded to accused, were set aside, in circumstances.

Saindad and 2 others v. The State 1972 SCMR 74; Faqir Muhammad v. Muhammad Ramzan and others 1982 SCMR 41 Ghulam Jaffar v. Allahdad and 2 others 1.995 SCMR 173; The State v. Muhammad Sharif and 3 others 1995 SCMR 635; Zafar Hayat v. The State 1995 SCMR 896; Raheb and 3 others v. The State 1980 PCr.LJ 336 and Shaukat Ali v The State 1994 PCr.LJ 1363 ref.

(b) Criminal trial‑‑‑

‑‑‑‑Motive‑‑‑Motive is a double‑edged weapon which cuts both ways.

State v. Muhammad Shareef and 3 others 1995 SCMR 635 ref.

Ghulam Haider Baloch for Appellant. Altaf Hussain Surahio for the State.

Date of hearing: 12th October, 2000.

2001 P Cr. L J 857

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Laghari, JJ

ABDUL KARIM ‑‑‑Applicant

versus

GOVERNMENT OF SINDH and others‑‑‑Respondents

Criminal Miscellaneous Application No.24 of 2001, heard on 29th January, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 491‑‑‑Habeas corpus petition‑‑‑Commissioner appointed to ascertain the factum of detention of the detenu, had found the detenu detained at the police station without any entry in the police diary ‑‑‑Detenu was alleged to have robbed a person, alongwith other culprits, but his name did not appear in the F.I.R. as one of the accused and his identification test was not held through person who allegedly was robbed ‑‑‑Detenu was granted bail directing him to participate in the investigation of the alleged crime.

Ghulam Muhammad Durrani for Applicant.

Sher Muhammad Shar, Asstt. A.G. for the State.

2001 P Cr. L J 865

[Karachi]

Before Ghulam Nabi Soomro, J

DEEDAR HUSSAIN ‑‑‑Applicant

versus

SHAHID and 3 others‑‑‑Respondents

Criminal Miscellaneous Application No.S‑93 of 2000, decided orb 13th November, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.302 & 337‑H(ii)/148/149‑­Bail, cancellation of‑‑‑Accused were not alleged to have caused any injury to anyone and no overt act was alleged against them‑‑‑Accused were only alleged to be present at the place of incident, but nothing had been attributed against them except firing in the air‑‑‑Such allegation would create scope of further enquiry into guilt of the accused‑‑‑Case of co‑accused who was ‑also granted bail was not distinguishable‑ from that of the accused persons‑‑­Accused, in circumstances; were rightly granted bail‑‑‑Application for cancellation of bail, was rejected.

Muhammad Ramzan v. Zafarullah and another 1986 SCMR 1380 and 1996 PCr.LJ 1422 ref.

Muhammad Saleem Jessar for Applicant.

Muhammad Ayaz Soomro for Respondents Nos. 1, 2 and 3.

G.A. Shahani, Addl. A. G. for the State.

2001 P Cr. L J 874

[Karachi]

Before S. Ahmed Sarwana, J

MASHOOQUE‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑281 of 1999, heard on 17th December, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail, grant of‑‑Accused had been in, custody for more than two years‑‑‑Contention that the manner in which the accused was alleged to have killed two persons had shown, the accused as hardened, desperate or dangerous criminal, was repelled as the phrase "hardened, desperate or dangerous criminal" appearing in fourth proviso to S.497(l), Cr.P.C. had used the word "criminal" and not "person "‑‑‑Trial being still in progress, the accused would be presumed to be innocent until he was convicted by the Court‑‑‑Application for grant of bail on the ground of statutory delay was allowed.

Asif Ali Abdul Razak Soomro for Applicant.

Ghulam Hyder Baloch for the Complainant.

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

2001 P Cr. L J 904

[Karachi]

Before Anwar Mansoor Khan, J

MOINUDDIN‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.680 and Miscellaneous Applications Nos. 1906 and 1907 of 2000, decided on 18th December, 2000.

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

‑‑‑‑S. 497(1), third & fourth provisos‑‑‑Penal Code (XLV of 1860), Ss.302/34‑‑‑Bail, grant of‑‑‑Bail was sought on statutory ground of delay contending that accused was in custody, for more than three and half years and case had not proceeded‑‑‑Trial Court refused the bail holding that accused had committed Harabah in furtherance of common intention and three other accomplices and accused could be easily labelled as hardened, desperate and dangerous criminal‑‑Validity‑‑‑Held, to hold that an accused was hardened, desperate and dangerous criminal, there had to be a past record or some record to show that the accused could be termed hardened, desperate and dangerous criminal‑‑‑Only the observation that such type of incidents were increasing day by day could not by itself term any accused as hardened, desperate and dangerous criminal‑‑‑Superintendent of Jail had reported that behaviour of the accused had been satisfactory in the prison‑‑­Prosecution could not point out that any other case/cases were pending against the accused in which he could have been convicted‑‑‑Accused who had spent continuously more than three years in jail and said delay was not caused or occasioned due to any act or omission of the accused, was entitled to bail on ground of statutory delay under S.497(1), third proviso, Cr.P.C.

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

‑‑‑‑S. 497(1), third & fourth provisos‑‑‑Bail on statutory ground‑of delay‑‑­Grant of bail under third proviso to S.497(1), Cr.P.C. was statutory right of accused but would be governed subject to fourth proviso of the said section.

Moundar and others v. The State PLD 1990 SC 934; Zahid Hussain Shah v. The State PLD 1995 SC 49; Shaukat Ali v. Ghulam Abbas and others 1998 SCMR 228; Rizwan Hussain v. The State 1999 SCMR 131; Tanveer Shahid v. Shaukat Ali and another 2000 SCMR 501; Muhammad Rafique v. The State 1997 SCMR 412; Jaggat Ram v: The State 1997 SCMR 361 and Manzoor and 4 others v. The State PLD 1972 SC 81 ref.

Qurban Ali H. Chohan for Applicant.

M. Azeem Panhwar for the State.

2001 P Cr. L J 914

[Karachi]

Before Muhammad Roshan Essani, J

ALLAH WADHAYO ‑‑‑ Applicant, versus

WALI MUHAMMAD and 3 others‑‑‑Respondents

Criminal Revision Application No.83 of 2000, decided on 16th November, 2000.

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

‑‑‑‑Ss. 200, 203, 403 & 439‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Penal Code (XLV of 1860), S.161‑‑‑Constitution of Pakistan (1973), Art.132‑‑‑Autrefois acquit, autrefois convict; principle' of‑‑­Dismissal of complaint ‑‑‑Revisional jurisdiction, exercise of‑‑‑Complaint earlier filed by complainant, was withdrawn on the ground that an amicable settlement had taken place between the parties‑‑‑After withdrawal of the complaint, another complaint was filed by the complainant under same provisions of law containing the same facts‑‑‑Trial Court dismissed the said complaint‑‑‑Validity‑‑‑Withdrawal of earlier complaint would operate acquittal of accused and complainant was debarred from filing the second complaint‑‑‑Second complaint on same facts was not maintainable under S.403, Cr.P.C. as well as under Art. 132 of Constitution of Pakistan (1973) and also on principle of autrefois acquit autrefois convict‑‑‑Just and proper order of Trial Court dismissing second complaint could not be interfered with in revision by High Court.

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

‑‑‑‑Ss. 200 & 203‑‑‑Dismissal of complaint‑‑‑No requirement of law that the Court on receipt of a direct complaint must hold preliminary enquiry‑‑‑If a prima facie case was made out, Court could take cognizance of the same after examining the complainant on oath and if no such case was made out, Court was competent to dismiss the same‑‑‑Preliminary enquiry was meant to ascertain the truth or otherwise of the fact disclosed in the complaint‑‑­Preliminary enquiry, however, was not a condition precedent for dismissal or taking cognizance.

Athar Iqbal Shaikh for Applicant.

2001 P Cr. L J 926

[Karachi]

Before Muhammad Roshan Essani, J

PUNHOON LASHARI‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.521 of 2000, decided on 6th November, 2000.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302, 337‑A(ii) & 148‑‑‑Bail, grant of‑‑‑Reason for non‑mentioning of the name of the accused in the F.I.R. had been properly explained in further statement of the complainant immediately recorded after F.I.R.‑‑‑Eye‑witnesses had fully implicated the accused in their 'statements‑‑‑Case of co‑accused who were granted bail was distinguishable from the case of the accused‑‑‑Complainant and all other prosecution witnesses had completely exonerated one of the co‑accused in their affidavits sworn before the Trial Court and two other co‑accused were attributed only the instigation‑‑‑Ground of consistency was not available to the accused, in circumstances‑‑‑No probability of mistaken identity of accused was present as the parties were caste-fellows‑‑‑Accused with pre-­concert, common intention and object, during odd hours of the night entered into the house of complainant, killed two innocent persons and caused injuries to the complainant‑‑‑Contention that no overt act had been ascribed to the accused, was not tenable in law, in circumstances‑‑‑Injuries on the person of the deceased as well as complainant were corroborated by the medical evidence‑‑‑Reasonable grounds to believe that the accused prima facie was guilty of offence, being existing, the accused was not entitled to bail.

Inayat and others v. The State 1997 PCr.LJ 463(1) and Ghulam Rasool and others v. The State PLJ 1980 SC 95 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 34‑‑‑Common intention‑‑‑If a criminal act was committed in furtherance of common intention or object by several persons, each person would be liable for that act as if it was committed by him.

Shahzaman and. 2 others v. The State PLD 1994 SC 65 ref.

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

‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Principle‑‑‑Detailed appreciation or evaluation of the evidence, could not be made, but only tentative assessment was warranted by law for the purpose of bail.

(d) Islamic Law‑‑‑

‑‑‑‑Marriage‑‑‑Question of chastity‑‑‑Applicability of principle of Lian‑‑­Marriage under Islamic Law, was a civil contract and not a sacrament‑‑­Marriage was for comfort, love and compassion‑‑‑One of the objects of matrimonial tie was procreation of human generation and it was the bounden duty of husband to keep his wife with love, affection, respect and provide her maintenance during subsistence of marriage‑‑‑Islam had laid down the parameter for spouses to live within those bounds and. if the parties transgress their parameters, they should relieve each other by breaking the matrimonial tie with kindness‑‑‑Islam never conferred power/right upon the husband to take law into his hands and to kill his spouse for any wrong committed by her‑‑‑Even in, case of fornication the Qazi had to decide and fix the liability and impose penalty and it was not for the husband to perform the duty of Qazi and impose penalty of her choice‑‑‑Islam even in case of allegation of chastity by the husband against the wife, had permitted the dissolution of marital tie on the principle of Lian.

Liaqat Ali M. Bhutto for Applicant.

Sher Muhammad Shar, Asstt. A.G. for the State.

Date of hearing: 6th November, 2000.

2001 P Cr. L J 937

[Karachi]

Before Muhammad Roshan Essani, J

NASIR ZAFAR‑‑‑Applicant

versus

THE STATE and another‑‑‑Respondents

Criminal Transfer Application No.40 of 2000, decided on 20th November, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 526‑‑‑Transfer of case‑‑‑Case against accused pending in Court at place "P" had been‑sought to be transferred in. the Court at place "G" where case with regard to same subject‑matter was pending adjudication against the accused‑‑‑Transfer was sought on the grounds that place where case had been sought to be transferred was situated on the National Highway and most of the trains also stop at its railway station and most of the prosecution witnesses resided there‑‑‑Looking towards the convenience of the accused as well as prosecution witnesses, case was transferred accordingly.

Ghulam Muhammad Khan Durrani for Applicant.

Sher Muhammad Shar, Asstt. A.G. for the State.

2001 P Cr. L J 948

[Karachi]

Before Wahid Bux Brohi, J

ALLAH DIWAYA‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1308 of 2000, decided on 15th December, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑West Pakistan Arms Ordinance (XX of 1965), S‑13‑D ‑‑‑ Bail, grant of‑‑‑Investigation in the case was complete and the challan had been submitted in the Court‑‑‑Prosecution witnesses being police officials, tampering with the evidence by the accused was not apprehended‑‑‑Offence with which the accused was charged did not fall within the prohibitory clause of S.497(1), Cr.P.C.‑‑‑Bail was allowed to accused in circumstances.

Sanaullah Noor Ghouri for Applicant.

Muhammad Ismail Memon for the State.

2001 P Cr. L J 964

[Karachi]

Before Ghulam Nabi Soomro and Zawwar Hussain Jaffery, JJ

Syed MUZAFFAR HUSSAIN ‑‑‑Appellant

versus.

THE STATE‑‑‑Respondent

Special A.T. Appeal No.D‑179 of 2000, decided on 18th December, 2000.

Penal Code (XLV of 1860)‑‑‑‑

‑‑‑‑Ss. 302, 324, 337‑A(i), 337‑F(i), (iii), (v) & (vi)/34‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑‑Appreciation of evidence‑‑‑No evidence except the identification was available against the accused on the record‑‑‑Only two prosecution witnesses had identified the accused in the identification parade, whereas other three witnesses did not appear at the said parade‑‑‑Record did not show that the identifying witnesses had no chance at all to see the accused before his identification‑‑‑Evidence of the Magistrate could, at best, testify the fact that the identification of the accused by the witnesses taking place in his presence was free from any outside indulgence, but the same could not guarantee that the identifying witnesses did not have any opportunity to see the accused at any time before the parade and were not tutored‑‑‑Identification test was only a corroborative piece of evidence, but no evidence was available on record which might receive corroboration from it, nor the identification test itself was corroborated by any other evidence‑‑­Recovery of crime‑empties from the spot or the medical evidence could only tell about the occurrence of the incident, but could not help the prosecution for seeking conviction of the accused on the basis of identification evidence alone‑‑‑Absence of enmity between the accused and the identifying witnesses could not attest their statements with truth‑‑‑Conviction of accused could not be based safely on such piece of evidence‑‑‑Accused was acquitted on benefit of doubt in circumstances.

State v. Farman PLD 1995 SC 1; Asghar Ali v. Sabah 1992, SCMR 2088; Mehmood Ahmed and 3 others v. State 1995 SCMR 127; Khadim Hussain v. The State 1985 SCMR 721; Ghulam Rasool and 3 others v. The State 1988 SCMR 557; Abdul Sattar and another v. The State 1981 SCMR 678; Kirir v. The State PLD 1995 Kar. 246; Muhammad Iqbal v. Abid Hussain alias Mithu and 6 others 1994 SCMR 1928; Muhammad Amir alias Mushki and 3 others v. The State PLD 1977 Kar. 695; Muhammad Afzal v. The State 1982 SCMR 129; Ali Muhammad and another v. The State 1985 SCMR 1834; Moazzam Ali and 2 others v. The State 1991 PCr.LJ 817; Muhammad Yousuf Zai v. The State PLD 1988 Kar. 539 and Ramzan and others v. Emperor AIR 1929 Sindh 149 ref.

A.Q. Halepota for Appellant.

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

Date of hearing: 29th November, 2000.

2001 P Cr. L J 977

[Karachi]

Before Ghulam Nabi Soomro and Syed Zawwar Hussain Jaffery, JJ

SARTAJ KHAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.204 of 2000, decided on 7th December, 2000.

West Pakistan Arms Ordinance (XX of 1965)‑‑‑

‑‑‑S. 13‑D‑‑‑Appreciation of evidence‑‑‑Assertion of accused ' that he possessed a valid licence of the K.K. Rifle and a permit to carry the same for his self‑protection had been verified from the concerned Ministry and it was confirmed that he was the genuine licence holder of the said rifle recovered from him‑‑‑Prosecution, in the circumstances, was duty‑bound to rebut such fact, but .it failed to do so‑‑‑Prosecution had examined only one witness (complainant) in the case who had also acted as Investigating Officer ‑‑‑Non­examination of the remaining prosecution witnesses/Mashirs was not understandable who were neither shown to have been won over by the accused, nor to have turned hostile to prosecution‑‑‑Defence version appeared to be more truthful and was believable‑‑‑Accused was acquitted accordingly.

Kh. Naveed Ahmed for Appellant.

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

Date of hearing: 5th December, 2000.

2001 P Cr. L J 986

[Karachi]

Before Ghulam Nabi Soomro and Ata‑ur‑Rehman, JJ

IQBAL AHMAD MEMON‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 142 of 2000, decided on 20th February, 2001

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S: 497‑‑‑Penal Code (XLV of 1860), Ss.409/420/34/109‑‑‑Bail‑‑‑Offence under S.409, P.P.C. was punishable with imprisonment for life and fine‑‑­Amounts deposited by various consumers at the Utility Booth of the Bank, ex facie, were going into the custody of the accused and his co‑accused‑‑­Accused had failed to substantiate that he was not an absconder and that he was attending to his duties at some other Branch of the Bank‑‑‑Grant of bail under Special Laws was not a rule‑‑‑Frauds in financial institutions having touched alarming altitudes no reasonable grounds appeared to show that the accused was not guilty of the offence charged with‑‑‑Bail was declined to accused in circumstances.

I. A. Hashmi for Applicant.

2001 P Cr. L J 995

[Karachi]

Before Muhammad Afzal Soomro, J

NASIR HUSSAIN ‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1159 of 2000, decided on 13th January, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Sindh Children Act (XII of 1955), S.5‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail‑‑‑Accused according to the Certificate issued by Headmaster, Metropolitan Corporation School, Medical Superintendent of Services Hospital and Civil Surgeon was about 12 years of age‑‑‑Accused being under 16 years of age on the relevant date and time of the incident was a child in terms of S.5 of the Sindh Children Act, 1955 which provided special procedure for trial of children and also prohibited sending them to jail‑‑‑Accused was admitted to bail in circumstances.

Anwar v. The State 1983 SCMR 1001; Sindh Sarwar Gugalli v. State of West Bengal PLD 1958 SC (Ind.) 337 and Criminal Transfer Application No.42 of 2000 ref.

Muhammad Iqbal for Applicant.

Sharafat Ali Khan for the State.

ORDER

2001 P Cr. L J 1005

[Karachi]

Before Ghulam Nabi Soomro

and Ata‑ur‑Rehman, JJ

SAJJAD ALI ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal A.T.A. No.27 of 2000, decided on 13th February, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 377‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑‑Question of the accused being minor at the time of incident was not considered by Trial Court despite documentary evidence in this regard being available on record‑‑‑Such aspect of the case touching the jurisdiction of the Court certainly needed examination and could not be lightly set aside by Trial Court even if the application submitted for proper trial of accused was subsequently withdrawn‑‑‑Conviction and sentence of accused were consequently set aside and the case was remanded to Trial Court for fresh decision in accordance with law after determining the question of age of the accused.

Muhatrmad Jamil and others v. The State 2000 YLR 231 ref.

Azizullah, K. Shaikh for Appellant.

Habib Ahmed, A.A.‑G. for the State.

Date of hearing: 13drFebruary, 2001.

2001 PCr.LJ 1117

[Karachi]

Before Amanullah Abbasi, J

Senator ASIF ALI ZARDARI‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.295 of 1998, decided on 22nd October, 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(1), first proviso‑--‑ Penal Code (XLV of 1860), Ss.409/109‑‑­Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Bail on medical grounds‑‑‑Accused was suffering from many ailments which according to medical opinion could affect his capacity and were likely to be hazardous to his life‑‑‑Some of the ailments required specialized treatment which could not be provided in jail‑‑‑Accused could not receive the treatment of his choice in the jail hospital, nor the Jail Authorities could look after him‑‑‑Bail was allowed to accused in circumstances.

PLD 1966 SC 658; PLJ 1978 SC 366; Banaras v. The State 1978 SCMR 191; 1981 SCMR 686; 1986 SCMR 847; 1995 PCr.LJ 1613; Malik Muhammad Yousufullah Khan v. The State and another PLD 1995 SC 58 and Mian Muhammad Shahbaz Sharif v. The State KLR 1996 Crl. 300 ref.

Azizullah K. Sheikh and Farooq H. Naik for Applicant.

Syed Tariq Ali, Standing Counsel for Dy.A.‑G.

2001 P Cr. L J 1125

[Karachi]

Before Amanullah Abbasi, J

JAVAID ANWAR‑‑‑ Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.49 and Miscellaneous Application No.84 of 2000, decided on 8th March, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.365/342/324‑‑‑Offences, Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)‑‑‑Bail‑‑­Confessional statement made by co‑accused implicating the accused could not be used as circumstantial evidence against the accused as laid down in PLD 1991 FSC 53‑‑‑Abscondence of accused for about; four years might be correct, but then heavy surety could be imposed‑‑Co‑accused had already been granted bail and the principle of consistency had to be followed‑‑‑Bail was allowed to accused in circumstances.

1997 SCMR 9; 1996 PCr.LJ 978; 1991 SCMR 322; PLD 1991 FSC 53; 1977 SCMR 292; 1998 MLD 1549; 1992 PCr.LJ 1910 and 1989 PCr.LJ 1110 ref.

Mehmood Akhtar Qureshi for Applicant.

Muhammad Ismail Memon for the State.

2001 P Cr. L J 1127

[Karachi]

Before Abdul Ghani Sheikh, J

ABDUL, SATTAR ‑‑‑ Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.967 of. 1998, decided on 16th November, 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.324/147/148/149/504/114/ 337‑A(iii)/337‑F‑‑‑Bail‑‑‑Accused had not attempted to repeat the iron rod blow and it was yet to be determined whether the offence would fall under S.324, P.P.C. or not‑‑‑.Certificate issued by the Medical Officer regarding injury of the injured witness having been disputed by tire accused at the very initial stage, the nature of injury was also yet to be decided‑‑‑Delay of two hours in lodging the F.I.R. was fatal to the prosecution case as the distance between the place of occurrence and the police station was hardly 100 steps‑‑‑Prosecution had no objection to the grant of bail to accused‑‑‑Bail was allowed to accused in circumstances.

Khawaja Sharful Islam for Applicant.

M. Ismail Memon for the State.

Mehmood A. Qureshi for the Complainant.

2001 P Cr. L J 1136

[Karachi]

Before Ali Muhammad Baloch

and Ikram Ahmed Ansari, JJ

NOOR AHMAD alias NOOR JEHAN‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

No,881 of 1998, decided on 11th September

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 49.7(1), third proviso‑‑‑Penal Code (XLV of 1860), Ss.307/353/411/427/148/149‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Bail on the ground of statutory delay ‑‑‑Accused was a previous convict of an offence punishable with imprisonment for life‑‑­Additionally accused was involved in marry acts of terrorism and he was a desperate and dangerous criminal‑‑‑Possibility that after coming out of jail the accused would repeat the commission of the crimes could not be ruled out‑‑‑Despite the trial of accused having been delayed for a sufficiently long time, he did not deserve to be released on bail‑‑‑Accused was declined bail ­accordingly.

Ali Gohar Soomro for Applicant.

Habib Ahmed, A.A. ‑G. for the State.

2001 P Cr. L J 1139

[Karachi]

Before Zahid Kurban Alavi, J

AHMAD ALI‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 69 of 1999, decided on 26th March, 1999.

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

‑‑‑‑S. 497(1), third proviso‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)‑‑‑Penal Code (XLV of 1860), S.324/34‑‑‑Bail on ground of statutory delay‑‑‑Superintendent‑ of Jail concerned had issued a certificate as to the conduct of the accused giving opinion that he was not a hardened, desperate or dangerous person‑‑­Observation of the Trial Court in the impugned order, however, was that the accused being a police constable was supposed to protect the lives and properties of the public and not commit the robbery and murder of public‑‑­-- Accused in the opinion of Trial Court, thus, had acted as a dangerous and hardened criminal, which amounted to deciding the guilt of accused without affording him the benefit of the trial‑‑‑Every individual was innocent till he was proved guilty‑‑‑Bail orders should not go into the merits and demerits of the case, but Court should restrain themselves to observing whether a case for bail was made out or not‑‑‑Any‑observation on the merits at the bail stage would amount to pre judging of the case which was not the objective of law‑‑‑Bail was granted to accused in the circumstances.

PLD 1990 SC 934 and 1990 PCr.LJ 822 ref.

Ghularn Hyder Baloch for Applicant.

Ali Azher Tunio, A.A.‑G. for the State.

2001 P Cr. L J 1146

[Karachi]

Before Ghulam Nabi Soomro and Wahid Bux Brohi, JJ

RIAZ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 18/H and Special A.T. Appeal No.4/K of 1999, heard on 18th November, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Neither the names of the culprits nor their features or description were mentioned in the F.I.R.‑‑‑Three co‑accused had been acquitted` and the accused alone had been convicted by the Trial Court on the same evidence‑‑‑Many shots were allegedly fired at the time of occurrence, but not a single crime‑empty was found at the spot‑‑‑Rifle recovered from the accused was not sent to the Ballistic Expert‑‑‑ Prosecution evidence was contradictory arid the two versions given by it could not be true at one and the same time‑‑‑Identification of accused at night in the light of the vehicles from a distance of 1/2 Km. or 1/2 furlong was not a reliable or trustworthy evidence‑‑‑Accused was extended benefit of doubt and acquitted in circumstances.

1988 PCr.LJ 1368; 1999 PCr.LJ 595; PLD 1996 Kar. 246; 1996 SCMR 308; 1998 SCMR 1401 and 1997 MLD 1679 ref.

Qurban Ali H. Chaohan for Appellant.

Habib Ahmed, A.A.‑G. for the State.

Date of hearing: 18th November, 1999.

2001 P Cr. L J 1153

[Karachi]

Before Abdul Hameed Dogar, J

MUHAMMAD and 2 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 125 of 1993(H) and 198 of 1994(Kar), decided on 26th August, 1998.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 364‑‑‑Appreciation of evidence‑‑‑None of the prosecution witnesses including the abductee had charged the accused at the trial for having abducted the abductee with the intention to murder him which was the basic requirement of S.364, P.P.C.‑‑‑Prosecution had, thus, failed to prove the case against the accused‑‑‑Accused were acquitted accordingly.

Khawaja Adeel Ahmed for Appellants.

Habibur Rasheed for the State.

Date of hearing: 26th August, 1998.

2001 P. Cr. L J 1164

[Karachi]

Before Ali Muhammad Baloch

and 1kram Ahmad Ansari, JJ

SHAKIR NAWAZ CHOUDHURY, ADVOCATE and another‑‑‑Applicants

Versus

S.H.O./INSPECTOR, NAZIR AHMAD BAJWA, POLICE STATION MODEL COLONY, KARACHI, EAST and 2 others‑‑‑Respondents

Criminal Miscellaneous No.229 of 1998 and Miscellaneous Application No. 1135 of 1992, decided on 19th August, 1998.

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

‑‑‑‑‑S. 491‑‑‑Habeas corpus petition‑‑‑Custody of minors‑‑‑Case did not appear to be one of unlawful or wrongful confinement of the two minor girls, but about a dispute of their maternity‑‑‑Police report based on a detailed investigation, prima facie, revealed that one of the respondents was the real mother of the two minor girls, which was a tentative finding subject to a decision by the Guardian Court‑Said respondent lady was consequently held entitled to the custody of the minors for the purpose of the decision of the present petition‑‑‑Applicants could, however, approach the Guardian Court in case they claimed that the aforesaid respondent lady was not the real mother of the minors.

Muhammad Kamil Shaikh for Applicants.

Habib Ahmed, A.A. ‑G. for the State.

2001 P Cr, L J 1170

[Karachi]

Before Muhammad Ashraf Leghari, J

ALLAH WARRAYO and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.292 of 2000, .decided on 4th December, 2000.

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

‑‑‑-S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/377/342/34‑‑‑Offence of ­Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18 ‑‑‑Bail--- Incident was unseen ‑‑‑Accused were already under arrest and the names of prose who had implicated them had subsequently been introduced by the police who did not figure in the F. I. R. ‑‑‑Accused were also not named in the F.I.R.‑‑‑No other piece of evidence was available against the accused and their false implication in the case could not be ruled out‑‑‑Case of accused was distinguishable from that of co‑accused‑‑‑No reasonable grounds at such stage were available to believe the accused being guilty of the offence charged with‑‑- Accused were admitted to bail in circumstances.

Shaikh Amanullah for Applicants.

Abdul Sattar Soomro for A.A.‑G. for the State. .

2001 P Cr. L J 1196

[Karachi]

Before Hamid Ali Mirza, J

Malik MUHAMMAD AYOOB AWAN‑‑‑Petitioner

Versus

AKHTAR LODHI, S.H.O., POLICE STATION

SHAHRAH‑E‑FAISAL, KARACHI

and, 2 others‑‑‑Respondents

Criminal Miscellaneous Application No.349 of 1996, decided on 14th January, 1998.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑5. 188‑‑‑Criminal Procedure Code (V of 1898), Ss.4(l)(h), 195(1)(a) & 561‑A‑‑‑Quashing of proceedings‑‑‑Magistrate had taken cognizance of the case on the basis of challan submitted by the S.H.O. concerned‑‑‑No complaint as envisaged by SA(1)(h), Cr.P.C. had been filed by the Deputy Commissioner who had passed the order under S.144, Cr.P.C. or any other person to whom he was subordinate, as required by S.195(1)(a), Cr.P.C.‑‑­Cognizance taken by the Magistrate of the case under 5.188, P.P.C. on the police report, therefore, amounted to abuse of the process of law‑‑­Proceedings in the case were quashed accordingly.

Yar Muhammad and 12 others v. The State 1988 PCr.U 2156; Ghulamullah v: The State 1993 PCr.U 1307; Haji Toofi Bashar v. The State 1993 PCr.U 1448; Syed Abdur Rehman Shah and 25 others v. The State 1996 PCr.U 483; Mubashir and others v. The State 1994 PCr.U 2496; Sanaullah v. The State 1994 PCr.U 2552; Riazuddin and others v. The State 1997 MLD 2532 and Sharif and 4 others v. The State PLD 1975 Lah. 1215 ref.

Applicant in person.

2001 P Cr. L J 1225

[Karachi]

Before Abdul Ghani Sheikh, J

JEHANGHIR KHAN‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Revision No. 101 of 1998, decided on 18th November, 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 516‑A‑‑‑Penal Code (XLV of 1860), 5.412‑‑‑Custody of car on Superdari‑‑‑Sessions Court had given the temporary custody of the car involved in the crime to the applicant with the direction to him to obtain such further orders from' the other two relevant Courts as the same car was also involved in two other criminal cases‑‑‑Applicant through the present revision petition had sought the deletion of the direction of the Sessions Court regarding obtaining such orders from other two Courts‑‑‑Car in question admittedly was involved in the two other cases and its production before the said two Courts was also necessary at the time of trial‑‑‑Applicant, therefore, was bound to obtain similar orders from those Courts as well‑‑‑Impugned order passed by Sessions Court suffered from no illegality‑‑‑Revision petition was dismissed in limine accordingly.

1993 PCr. LJ 481; 1997 PCr. LJ 1006 and 1985 PCr. LJ 1175 ref.

Jawed Mussarat alongwith Salim Iqbal for Applicant.

Sharafat Ali Khan for the State.

2001 P Cr. L J 1239

[Karachi]

Before Muhammad Roshan Essani, J

LOHAR‑‑‑Applicant/Complainant

Versus

MUHAMMAD HASSAN and 3 others‑‑‑Respondents

Criminal Miscellaneous Application No. 181 of 2000, decided on 20th November, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Cancellation of bail‑‑­Complainant had lodged the F.I.R. promptly naming the accused therein with the role played by them in the commission of the offence‑‑‑Fire‑arms used in the occurrence had been recovered from the possession of accused alongwith ammunition‑‑‑Ocular evidence was corroborated by medical evidence and circumstantial evidence‑‑‑Accused had not only killed the deceased in order to avenge the insult, but had also brutally and callously killed an innocent lady for making the case one of "Kayo Kari"‑‑‑Police had although placed the accused in Column No. 2 of the challan, yet they could be joined by the Trial Court as accused at any stage of the trial‑‑‑F. I. R. and the statements of prosecution witnesses, prima facie, did not show the case being of two theories‑‑-One accused who was in the company of co‑accused responsible for having caused fatal fire‑arm injuries to the deceased, was privy to the commission of the offence‑‑‑Impugned order granting bail to accused was not only perverse and illegal, but was not in accordance with the principles laid down by the Supreme Court for the grant of bail‑‑‑Bail allowed to accused was cancelled accordingly.

Ghulam Rasool and 3 others v. The State PLJ 1980 SC 95 and Shah Zaman and 2 others v. The State PLD 1994 SC 65 ref.

Habibullah Shaikh for the Applicant/Complainant.

Shaikh Amanullah for Respondents.

Mumtaz Ali Siddiqui for the State.

2001 P Cr. L J 1250

[Karachi]

Before Ghulam Rabbani, J

Mst. AISHA‑‑‑Applicant

Versus

BABER alias BADAL and another‑‑‑Respondents

Criminal Miscellaneous Application No. 169 of 1998, heard on 30th June, 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 491‑‑‑Habeas corpus petition‑‑‑Custody of minors‑‑‑Controversy as raised by the patties needed a thorough inquiry which was left to them to be resolved by a Court having jurisdiction in the matter‑‑‑Minor children at present were in the custody of their father (respondent) who could look after them in a better way‑‑‑Custody of the minors could not be restored to the mother (petitioner) in the peculiar circumstances as they stood presently‑‑­Petitioner, however, could approach the Court of competent jurisdiction for, redress of her grievance‑‑‑Petition was disposed of accordingly.

Mst. Rehana v. Arshad Khan and 2 others 1991 MLD 1395; 1989 MLD 3064; PLD 1957 (W.P.) Kar. 50; 1992 CLC 2348 and 1989 PCr.LJ. 823 ref.

Nayyer Ziauddin for Applicant.

Ismail Memon for the State.

Bashir Ahmad for Respondent No. 1.

Date of hearing: 30th June, 1998.

2001 P Cr. L J 1254

[Karachi]

Before Syed Zawar Hussain Jaffery, J

QAMAR SHAH and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. S‑440 and Miscellaneous Application No. 969 of 2000, decided on 3rd November, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 324/337‑H(ii)/34‑‑‑Bail‑‑‑Ocular evidence was in conflict with medical evidence‑‑‑Gunshot fired by the accused had also hit the prosecution witness on his leg‑‑‑Said injury did not fall within the ambit of S.337‑G, P.P.C.‑‑‑Injuries according to medical certificate, were Jurh Ghayr Jaifah and Shajjah‑i‑Khafifah‑‑‑Reasonable grounds, therefore, were available 'for treating the case of accused as one of further inquiry‑‑‑Accused were admitted to bail in circumstances.

Muhammad Muzaffar v. The State 1995 PCr.LJ 1345 ref.

Ahmed Ali M. Shaikh for Applicants.

Altaf Hussain Surahi for the State.

2001 P Cr. L J 1291

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD RAMZAN‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. S‑20 and Miscellaneous Application No. 131 of 2001, decided on 20th February, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss. 324/337‑H(2)/ 147/ 148/ 149‑‑­Pre‑arrest bail‑‑‑F.I.R. had been belated by fifteen days‑‑‑Role attributed to accused in the occurrence was to the extent of ineffective firing only‑‑‑Parties were entangled in ‑a civil dispute‑‑‑Involvement of accused in the case was due to mala fide and ulterior reasons‑‑‑Interim bail before arrest already granted to accused was confirmed in circumstances.

Muhammad Saleem G.N. Jessar for Applicant.

Abdul Rehman Bhutto for the Complainant.

Altaf Hussain Surahio, for the State.

2001 P Cr. L J 1293

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

SAMUEL PETER‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No. 71 of 2000, decided on 29th March, 2001..

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

--‑Ss. 516‑A & 516-A-‑‑ Release had applied for giving to him on Superdari three vehicles and a large quantity of bottles of foreign liquor and imported beer seized by the Excise Inspector from his warehouse, on the ground that the same had been imported under licence and were stored under the licence issued by Excise and Taxation Department‑‑‑Excise Inspector present in the Court had stated that the Provincial' Excise Department had no‑objection to the release of the seized goods to the applicant as it had already given such "no objection even before the Trial Court‑‑‑Courts below had failed to apply their minds to the facts of the case and to exercise jurisdiction vested in them‑‑‑Excise and Taxation Department in circumstances was directed to release the entire seized goods to the applicant under Superdari.

(b) Administration of justice‑‑‑

‑‑‑‑ Instructions to Courts‑‑‑Subordinate Judicial Officers must apply their minds to the facts of each case and to consider the merits instead of merely disposing of the matters brought before them for adjudication and dispensation of justice‑‑‑Mere disposal of applications/cases by Judicial Officers would not amount to dispensation of justice but would rather amount to non‑exercise of the jurisdiction vested in them which was highly deprecatory act.

Sohail Muzaffar for Applicant.

Habib‑ur‑Rasheed for the State.

2001 P Cr. L J 1300

[Karachi]

Before Abdul Hameed Dogar, J

MUHAMMAD AKRAM‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 97 of 1994, decided on 1st October, 1998

(a) Penal Code (XLV of 1860)‑‑

‑‑‑‑S. 302‑‑‑Criminal Procedure Code (V of 1898), Ss. 364(2), 342 & 162‑‑­Qanun‑e‑Shahadat (10 of 1984), Art. 37‑‑‑Appreciation of evidence‑‑­Statement made by the accused before police was inadmissible in evidence and the same having been not recorded before any Magistrate could not be equated with his confession‑‑‑Said statement was also not got signed by the persons of the locality who were visiting the. police station at the time when the accused had appeared there‑‑‑Defence plea that the deceased had committed suicide carried weight‑‑‑Mandatory provision of S.364(2), Cr.P.C. having not been complied with by not getting the statement of accused recorded under S.342, Cr.P.C. signed by him, such statement could not be treated as recorded in the case and the important piece of incriminating evidence, thus, having not been put to accused under S.342, Cr.P.C. could not be considered for the purpose of conviction against him‑‑­Statement of accused was not only reduced into writing by the police but was also got ‑signed by him and as ‑such the. same even could not be equated with one under S.162, Cr.P.C.‑‑‑Accused was acquitted in circumstances.

AIR 1939 PC 49; Muhammad Saleh v. The State PLD 1965 SC 366; Noorul Haq v. The State 1992 SCMR 1451 and Pakala Narayana Swami v. Emperor AIR 1939 PC 47 ref.

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

‑‑‑‑Ss. 342, 364(2) & 537‑‑‑Penal Code (XLV of 1860), S.302‑‑­Examination of accused‑‑‑Omission to get the statement of accused recorded under S.342, Cr.P.C. signed by him is an illegality not curable under S.537, Cr.P.C., being a violation of the mandatory requirement of S.364(2), Cr.P.C.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 3.7‑‑‑Article 37, Qanun‑e‑Shahadat, 1984 stipulates that no confession made to a Police Officer shall be proved as against a person accused of an offence.

Azizullah Shaikh for Appellant.

Jawed Akhtar for the State.

Date‑of hearing: 1st October, 1998.

2001 P Cr. L J 1312

[Karachi]

Before Muhammad Ashraf Leghari, J

MUHAMMAD JUMMAN‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 90 of 1990, heard on 14th December, 2000.

(a) Prevention of Corruption Act (II of 1947)‑‑‑

‑‑‑‑S. 5(2)‑‑‑Penal Code (XLV of 1860), S.161‑‑‑Appreciation of evidence‑‑­Two prosecution witnesses had been mentioned in the F.I.R. in whose presence the alleged bribe money was demanded, one of the witnesses had been given up by the prosecution and the other witness had not supported the prosecution case, and the third prosecution witness had, on the contrary, supported the version of the accused that the complainant had paid back the amount of Rs. 3,000 to the accused which the accused had given to the complainant for purchasing a tape‑recorder for him which the complainant could not purchase for certain reasons‑‑‑None of the prosecution witnesses including the Magistrate and the Investigating Officer had heard the conversation between the complainant and the accused‑‑‑Two versions in the case being equally possible, the version favourable to the accused was to be accepted‑‑‑Accused was acquitted in circumstances.

Kazi Nizamuddin v. The State PLD 1979 Kar. 294; Abdul Razzaq Rathore v. The State PLD 1992 Kar. 39; Abdul Aziz and another v. The State 1984 PCr.LJ 530; Mst. Rani v. The State PLD 1996 Kar. 316; Sultan Ali v. The State PLD 1971 Kar. 78; Khushhal and another v. The State 1971 SCMR 357 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

(b) Prevention of Corruption Act (II of 1947)‑‑

‑‑‑‑S. 5(2)‑‑‑Penal Code (XLV of 1860), S.161‑‑‑Appreciation of evidence‑‑­Benefit of doubt‑‑‑One single circumstance in criminal cases leading towards the real doubt is sufficient to acquit the accused on benefit of doubt

Tariq Pervez v. The State 1997 SCMR 1345 ref.

(c) Criminal trial‑‑‑

‑‑‑‑Benefit of doubt‑‑‑One single circumstance in a criminal case leading towards the real doubt is sufficient to acquit the accused on benefit of doubt.

(d) Criminal trial‑‑‑

‑‑‑‑Case of two versions‑‑‑Guiding principle‑‑‑Two versions in the case being equally possible, the version favourable to accused was to be accepted.

Habibullah Shaikh for Appellant.

Mumtaz Ali Siddiqui for the State.

Date of hearing: 14th, December, 2000.

2001 P Cr. L J 1318

[Karachi]

Before Abdul Hameed Dogar, J

ZAHID BALOCH‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

criminal Bail Application N0.301 and Miscellaneous Applications Nos. 580 and 805 of 1998, decided on 25th May, 1998

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(1), third proviso‑-‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)‑‑‑Bail on ground of statutory delay‑‑‑Accused was in jail for the last more than one year and four months and his trial had not yet concluded‑‑‑Bail had already been granted to accused in the connected case registered against him under S.13‑D of West Pakistan Arms Ordinance, 1965‑‑‑Accused was neither a previous convict nor a hardened, desperate or a dangerous criminal and was also not involved in any other case‑‑‑Bail was allowed to accused in circumstances.

Ejaz Ali S. Mangi for Applicant.

Muhammad Saad Qureshi for the State.

2001 P Cr. L J 1331

[Karachi]

Before S. Ahmed Sarwana and Muhammad Mujeebullah Siddiqui, JJ

YASIN SIDDIQUI‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No. 159 of 2001, decided on 19th May, 2001.

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

‑‑‑‑S. 561‑A‑‑‑Inherent jurisdiction of High Court under S.561‑A, Cr.P.C.‑‑­Nature and scope.

To quash a judicial proceeding in order to secure the ends of justice would involve a finding that if permitted to continue, that proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To find an "abuse" it would be necessary to see in the proceeding, a perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue.

Inherent powers are preserved to meet a lacuna in the Criminal Procedure Code in extraordinary cases and are not intended for vesting the High Courts with powers to make any order which they are pleased to consider to be in the interests of justice. These powers are as much controlled by principle and precedents as are its express statutory powers

If, in fact, an offence had been committed justice required that it should be enquired into and tried. If the accused are not guilty they have a right to be declared as honourably acquitted by a competent Court. On the other hand, if the evidence against the accused discloses a prima facie case then justice clearly requires that the trial should proceed according to law. The mere fact that a long period has expired since the initiation of proceedings is no ground for quashing the criminal proceeding.

The inherent jurisdiction given by section 561‑A, Cr.P.C. is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court should be extremely reluctant to interfere in a case where a competent Court has after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence.

If prima facie the offence had been committed justice required that it should be enquired into and tried. If the accused are not, as a result of the trial, found guilty they have a right to be declared as 'honourably acquitted by a competent Court'.

On the other hand if the evidence against the accused discloses a prima facie case then "justice clearly requires that the trial should proceed according to law". Inherent jurisdiction of the High Court is not an alternative jurisdiction or additional jurisdiction. It is only in the interest of justice to redress grievances for which no other procedure is available. The power given by section 561‑A, Cr.P.C., can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute".

Section 561‑A, Cr.P.C. is not meant to stifle the prosecution but is intended to prevent the abuse of process of Court. The 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 the prayer for quashment. The High Court under section 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. Powers under section 561‑A, Cr.P.C. are wide, but they are not supposed to be exercised to override the express provisions of law. The inherent jurisdiction given by section 561‑A, Cr.P.C. is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Ghularn Muhammad v. Muzammal Khan and others PLD 1967 SC 317: M.S. Khawaja v. The State PLD 1965 SC 287. A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353; Muhammad Bux v. S.D.M. PLD 1999 Kar. 366 and Syed Zeshan Hussain Kazmi v. The State 2000 PCr.LJ 645 ref.

(b) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑

‑‑‑‑S. 16‑‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑‑Application for quashment of proceedings under S.561‑A, Cr.P.C. by the accused in a case pending in Accountability Court‑‑‑Validity‑‑‑All the prosecution witnesses had been examined by the Trial Court and case was fixed for the statement of accused and defence, if any‑‑‑Applicant had sought in the application that High Court should assess and evaluate the prosecution evidence recorded by the Trial Court‑‑‑Contention of the applicant was not acceptable because the same would amount to stifle the normal course of proceedings in law and usurping the jurisdiction vested in the Trial Court and to pre‑empt the finding of a Court of competent jurisdiction‑‑‑When the Trial Court had already found that there was a prima facie case against the applicant, it would not be in the interest of justice to substitute findings by the High Court and thrust the same on the Trial Court which could never be the intention of preserving the inherent jurisdiction of the High Court under S.561‑A, Cr.P.C.‑‑‑Appropriate procedure would be to take the law its normal course and the Trial Court was allowed to exercise its jurisdiction vested in it by law and give finding on merits after a proper assessment and evaluation of the prosecution evidence already recorded by it.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Ghulam Muhammad v. Muzammal Khan and others PLD 1967 SC 317; M.S. Khawaja v. The State PLD 1965 SC 287. A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353; Muhammad Bux v. S, D. M. PLD 1999 Kar. 366 and Syed Zeshan Hussain Kazmi v, The State 2000 PCr.LJ 645 ref.

Abul Inam for Applicant.

Date of hearing: 10th May, 2001.

2001 P Cr. L J 1341

[Karachi]

Before Abdul Hameed Dogar, J

ASIF ALI ZARDARI and others‑‑‑Petitioners

Versus

THE STAT E‑‑‑Respondent

Criminal Revision No. 129 of 1997, heard on 23rd September, 1998.

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

‑‑‑‑S. 540‑‑‑Penal Code (XLV of 1860), Ss. 420/109‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Summoning of witnesses as Court-­witnesses‑‑‑Validity‑‑‑Trial Court had first rejected the request of prosecution to allow a list of 25 witnesses including the nine witnesses now sought to be summoned by a detailed order‑‑‑Simply reversing its own order by mentioning that the earlier order was passed on legal and technical grounds and the Court under S.540, Cr.P.C. was competent to call the said nine witnesses as prosecution witnesses was absolutely an invalid ground‑‑­Trial Court had passed the said order only on the‑ perusal of the statements of those witnesses recorded under S.161, Cr.P.C. which were not admissible in evidence and which were even available at the time of passing the earlier order‑‑‑No fresh material, thus, had either emerged or was available with the Trial Court while passing the impugned order‑‑‑Prosecution witnesses already examined in the case had also not made any disclosure of the evidence to be adduced by the said nine witnesses and their calling at the subsequent stage could be nothing more than filling in the lacunas left by the prosecution‑‑‑Moving an application under S.540, Cr.P.C. for calling nine witnesses as Court‑witnesses, therefore, was an afterthought‑‑‑Different observations arrived at by the Trial Court on the same subject‑matter called for an interference and High Court in exercise of its revisional jurisdiction was competent to set aside the order which was not only erroneous but not sustainable in law and also suffered from legal infirmities‑‑‑Impugned order was‑set aside accordingly.

1995 PCr.LJ 730; .1992 MLD 930 and 1993 MLD 1401 distinguished.

Amiruddin v. The State and another PLD 1977 SC 602 ref.

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

‑‑‑‑S. 540‑‑‑Summoning of witnesses‑‑‑Intent and scope detailed.

Powers under section 540, Cr.P.C. to be exercised by the Court are divided in two parts. The first part is discretionary in nature, whereas the second is mandatory. According to the first part it is discretionary with the Court to summon any person as witness suo motu or on an application, whereas according to the second part the powers to summon, examine, recall or re‑examine any person as a witness are to be exercised with due care and great caution. There should be some convincing evidence/material 'available on the record from which it is to be inferred that the examination of a particular person as a witness is essential for the just decision of the case.

Azizullah K. Shaikh for Petitioner.

Mubarak Hussain Siddiqui, Dy. A.G. for the State.

Dates of hearing: 21st and 23rd September, 1998.

2001 P Cr. L J 1349

[Karachi]

Before Muhammad Ashraf Leghari, J

MUHAMMAD ASLAM alias PHOTO‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 432 of 2000, decided on 11th January, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 302/34/114‑‑‑Bail‑‑‑Parties were on inimical terms with each other prior to the incident‑‑‑Accused was neither armed at the time of occurrence, nor he had caused any injury to the deceased‑‑‑Nothing incriminating was recovered from the possession of accused‑‑‑Accused was not required to throw the deceased on the ground before he could be tired at by co‑accused‑‑‑Main accuse appeared to have picked up the pistol all of a sudden from the fold of his Shalwar‑‑‑Presence of the accused at the site, his knowledge about the main accused being armed with a pistol and the applicability of S.34, P.P.C., were yet to be determined at the time of the trial‑‑‑Participation of accused in the commission of the offence, thus, needed further inquiry‑‑‑Accused was admitted to bail in circumstances.

Ali Asghar and another v. The State PLD 1985 Kar. 609; Wali Muhammad v. The State 1.999 PCr.LJ 1874; Ibrahim v. The State 1999 PCr. LJ 941; Bisharat Hussain v. Ghulam Hussain 1978 SCMR 357; Shahid v. The State 1994 SCMR 393; Muhammad Haroon v. The State 1994 SCMR 2161; Mahmood Akhtar and another v. Haji Nazir Ahmed and 4 others 1995 SCMR 310 and Javid Iqbal v. The State 1986 MLD 2665 ref.

Sardar Akbar Ujjan for Applicant.

Mumtaz Ali Siddiqui for the Complainant.

Gul Bahar Korai for A. A. G. for the State.

2001 P Cr. L J 1352

[Karachi]

Before Ikram Ahmed Ansari, J

Mst. KHADIJA ZAIDI‑‑‑Applicant

versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous Application No.255 of 1998, decided on 4th August 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 491‑‑‑Habeas corpus petition‑‑‑Custody of minor‑‑‑Minor son of the petitioner (mother) aged two years and ten months had allegedly been forcibly removed by his father (respondent) from the custody of his mother‑‑‑Keeping in view the tender age of the child his custody was handed over to his mother by the High Court subject to her furnishing the required surety with a direction to submit her Passport to the Court and not to remove the minor from its jurisdiction‑‑‑Petition was allowed with the said observations.

Raja Sher Muhammad Khan for Applicant.

Khadim Hussain Abro for Respondent No.2.

Mian Khan, Addl. A.‑G., Sindh.

2001 P Cr. L J 1371

[Karachi]

Before Muhammad Ashraf Leghari; J

MUHAMMAD BUX‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 15 of 1997, heard on 17th November, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Sentence, reduction in‑‑‑Accused had faced prolonged trial for about nine years and thereafter for the last 3‑I/2 years he was in custody‑‑­Imprisonment for life awarded to accused by Trial Court was reduced to 14 years' R.I. which was deemed to be sufficient to meet the ends of justice in view of the facts and circumstances of the case.

Habibullah Shaikh for Appellant.

Gul Bahar Korai for the State.

Date of hearing: 17th November, 2000.

2001 P Cr. L J 1376

[Karachi]

Before Abdul Hameed Dogar, J

JAMALUDDIN JAISI ‑‑‑ Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.258 of 1991, heard on 12th August, 1998.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 168‑‑‑Appreciation of evidence‑‑‑No concrete material had been placed by the prosecution on the record to prove that the accused, while serving as U.D.C. in T&T Department, had also joined a private service as Director of some Company‑‑‑Verbal assertion of his being working as a Director of some Company had no value in the presence of the attendance register of the accused maintained in the T&T Department‑‑‑Documents brought on the record by the prosecution having not been specifically put to the accused in his statement recorded under 5.342, Cr.P.C. same could not be taken into consideration as a valid piece of evidence against him‑‑‑Plea taken by accused in his defence regarding his false involvement in the case had gone unchallegned‑‑‑No sanction for the prosecution of accused was even obtained from appropriate Authorities‑‑‑Accused was acquitted in circumstances.

1993 PCr.LJ 337 and Khushi Masih v The State 1996.LJ 1787 ref.

I.A. Hashmi.and Arshad Lodhi for Appellant.

Musheer Alam, Standing Counsel for the State.

Date of hearing: 12th August, 1998.

2001 P Cr. L J 1395

[Karachi]

Before Muhammad Ashraf Leghari, J

GHULAM MUHAMMAD and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.70 of 1998, decided on 18th December, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Complainant alone had furnished the eye‑witness account of the occurrence who admittedly was the brother of the deceased and inimical towards the accused party‑‑‑Identification test was held very late and the complainant did not say anything about it‑‑‑Rifle was recovered from the accused after about six months of the incident and after twelve days of his arrest, which fact having not been put to him in his examination under S.342, Cr.P.C. was of no use for the prosecution‑‑‑Said rifle was received in the office of the Ballistic Expert after ten months of the occurrence and its recovery even for this reason was of no consequence‑‑‑Accused were acquitted on benefit of doubt in circumstances.

Abdul Rehman and others v. The State 1983 SCMR. 958; Ghulam Rasool and 3 others v. The .State 1988 SCMR 557; State/Government of Sindh through Advocate‑General, Sindh, Karachi v. Sobharo 1993 SCMR 585; Yousif v. The State PLD 1988 Kar. 521; Manzoor v. The State 1995 MLD 1097; Hameedullah and another v. The State 1999 MLD 1055; Abdul Rehman v. The State NLR (sic) Criminal 570; Allah Bux alias Khuda Bux v. The State 1978 PCr.LJ 346; Soomro .v. The State 1983 PCr.LJ 79; Muhammad Yakoob and another v. The State 1989 PCr.LJ 2227; Lutuf Ali and another v. The State 1991 PCr.LJ 544 and Abdul Karim alias Raja and another v. The State 1996 PCr.LJ 503 ref.

Manzoor Ahmad Junejo for Appellants.

Abdul Sattar Soomro for the State.

Date of hearing: 30th November, 2000.

2001 P Cr. L J 1403

[Karachi]

Before Muhammad Afzal Soomro, J

Haji MEERAL GOPANG‑‑‑Applicant

versus

THE STATE‑‑‑Respondent.

Criminal Bail Application No.S‑553 of 2000, decided on 13th March, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.324/353/148/149‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(2)‑‑‑Bail‑‑‑Case against accused was based only on identification test which was a hollow formality, devoid of any legal sanctity having been carried out in the presence of only police witnesses ignoring the independent persons‑‑‑No explanation was given for the identification test having been held on the sixth day of the arrest of the accused‑‑‑Incident having taken place during dark hours of the night, identification of culprits made in torch light was a weak piece of evidence‑‑‑Name, description and features of the accused were not mentioned in the F. I. R. ‑‑‑Accused was admitted to bail in circumstances.

Zaffar Ali v. The State 2000 PCr.LJ 1761 ref.

Abdul Hakeem Brohi for Applicant.

Muhammad Ismail Bhutto for the State.

2001 P Cr. L J 1408

[Karachi]

Before Muhammad Ashraf Leghari, J

MITHAL and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.97 of 1998, decided on 21st December, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence ‑‑‑F.I.R. had been lodged promptly within one hour of the occurrence which had taken place in broad daylight‑‑­Eye‑witnesses including the complainant who were natural witnesses of the incident had attributed specific hatchet injuries to the accused and their testimony could not be discarded merely for the reason of their being interested witnesses‑‑‑Ocular evidence was supported by medical evidence and inspired confidence‑‑‑Trial Court had already taken a lenient view, and had not awarded the maximum sentence to accused‑‑‑Conviction and sentence of accused were maintained in circumstances.

Rehmuddin v. The State 1973 SCMR 472; Mehmood Ahmed and 3 others v. The State 1995 SCMR 127; Mardan Ali v. Gulistan and others 1980 SCMR 889; Safiullah v. The State 1985 SCMR 410; Juma Khan v. The State 1.978 PCr. LJ 534; Mehra v. The State 1995 PCr. LJ 1122 and Abdul Rauf v. Siddik and another 1988 PCr. LJ 981 ref.

Habibullah Shaikh for Appellants.

Sher Muhammad Shar, A.A.‑G. for the State.

Date of hearing: 7th December, 2000.

2001 P Cr. L J 1415

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

FATEH CHAND‑‑‑Applicant

versus

THE STATE and 2 others‑‑‑Respondents

Criminal Miscellaneous Application No.316 and Miscellaneous Application No.2044 of 2000, decided on 21st February, 2001.

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

‑‑‑‑S. 11‑‑‑Criminal Procedure Code (V of 1898), Ss.249‑A & 56L A‑‑­Quashing of proceedings‑‑‑Trial Court had issued process against the accused in the, private complaint after having been satisfied that the complainant had made out a prima facie case against him under S.11 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979‑‑‑Accused had sought quashment of the said proceedings‑‑‑Held, alternate remedy being available to the accused under S.249‑A, Cr.P.C, resort could not be had to provisions of S.561‑A, Cr.P.C.‑‑‑Most appropriate remedy in such circumstances was to approach the Trial Court under S.249‑A, Cr.P.C. in order to enable it to apply its mind to such aspect of the matter in the first instance—­Accused was consequently directed to apply to the Trial Court for acquittal under S.249‑A, Cr.P.C. in the first instance‑‑‑Petition under 5.561‑A, Cr.P.C. was misconceived and the same was dismissed accordingly.

Chanderban and others v. The State 1997 PCr.LJ 1696; Khushi Muhammad v. Niaz Ali and others 1984 PCr.LJ 2223; Bakht Ali and another v. The State 1993 PCr.LJ 1872; Asif Ali Zardari v. The State and another 1992 PCr.LJ 58; Khushi Muhammad v. The State 1979 SCMR 94; Ghulam Muhammad v. Muzamal Khan PLD 1967 SC 317; State through Advocate-General, N.‑W.F.P. v. Gulzar Muhammad and others 1998 SCMR 873; S. Manzoor Hussain Shah v. Syed Agha Hassan Naqvi and others 1983 SCMR 775 and Raja Haq Nawaz v. Muhammad Afzal and others 1971 SCMR 698 ref.

Saifuddin Shah for Applicant.

Habibullah Shaikh for Respondent No.2

Abdul Sattar Soomro for the State.

2001 P Cr. L J 1431

[Karachi]

Before Muhammad Musa Leghari, J

WAZIR and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.633 of 2000, decided on 12th December, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)‑‑‑Bail‑‑‑Accused was not named in the F.I.R.‑‑‑No identification parade was held in the case‑‑‑Recovery made in the presence of police officials was doubtful, particularly when the place of recovery was commonly accessible and no private Mashir was associated‑‑‑Other accused, no doubt, was nominated in the F.I.R., but neither any specific role had been assigned to him in the occurrence nor any recovery was made from him‑‑­F.I.R. had been delayed and lodged after preliminary investigation‑‑‑False implication of accused could not be ruled out and case against them required further inquiry‑‑‑Accused were admitted to bail in circumstances.

Manzoor Ahmed Siddiqui for Applicants.

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

2001 P Cr. L J 1438

[Karachi]

Before Muhammad Afzal Soomro and Ghulam Rabbani, JJ

AMEER BUX ‑‑‑ Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. D‑29 of 2000, decided on 31st January, 2001.

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

‑‑‑‑S. 9(b)‑‑‑Sentence, reduction in‑‑‑"Charas" weighing 500 grams was recovered from the accused for which he had been awarded a sentence of seven years' R.I. under S.9(b) of the Control of Narcotic Substances Act, 1997‑‑‑Trial Court while awarding sentence should have kept in mind the quantity of "Charas" recovered from the accused and the same should have been commensurate with such quantity ‑‑‑Charas recovered from the accused weighed only 500 grams and he had not repeated the crime‑‑‑Sentence of accused was reduced to three years and six months' R.I. in circumstances.

Criminal Appeal No.65 of 2000 (Hyd.) ref.

Habibullah G. Ghori for Appellant.

Gul Hassan Solangi for the State.

2001 P Cr. L J 1449

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

RAJIBUJJAN‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.690 of 2000, decided on 21st February, 2001.

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

‑‑‑‑S. 4‑‑‑Jurisdiction of Special Court‑‑‑Mere use of prohibited weapon is sufficient to attract the jurisdiction of Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975.

Allahdin and 18 others v. The State and others 1994 SCMR 717; Azhar Hussain and others v. The Government of Punjab and others 1992 PCr.LJ 2308; Muhammad Sharif v. The State 1992 PCr.LJ. 1219 and Attaullah alias Atoo v. The State Criminal Bail Application No. 172 of 2000 ref.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/404‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.4‑‑‑Baii‑‑‑Jurisdiction‑‑‑Fact that Kalashnikov/prohibited weapon was allegedly used in the commission of the offence, was enough to attract the jurisdiction of Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975‑‑­Cognizance taken by the Sessions Court in the matter was, therefore, without jurisdiction‑‑‑Trial Court was consequently directed by High Court to return the case to the concerned police for submitting the challan in the aforesaid Special Court‑‑‑Bail application was disposed of accordingly.

Allahdin and 18 others N The State and others 1994 SCMR 71''1, Azhar Hussain and others v, The Government of Punjab and others 1992 PCr.U1 2308; Muhammad Sharif v. The State 1992 PCr.LJ 1219 and Attaullah alias Atoo v. The State Criminal Bail Application No. of 2000 ref.

Muhammad Daud Baloch for Applicant.

Mumtaz Ali Siddiqui for the State.

2001 P Cr. L J 1459

[Karachi]

Before Ghulam Rabbani and Muhammad Afzal Soomro, JJ

THE STATE through Additional Advocate‑General, Larkana‑‑‑Applicant

versus

ALI MUHAMMAD and 2 others‑‑‑Respondents

Criminal Miscellaneous Application No.138 of 2000, decided on 31st January, 2001.

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

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.302/114/148/149‑‑­Cancellation of bail‑‑‑Accused persons although having been allegedly armed with guns and rifle had not caused any damage to the deceased and no injury was attributed to them‑‑‑Accused had also not misused the concession of bail‑‑‑Nine persons were alleged to have fired at the time of incident but only two shells of bullets and two empty cartridges were recovered from the spot‑‑‑Case against accused, thus, needed further probe into their guilt‑‑­Vicarious liability of accused was to be determined at the trial‑‑‑Bail had been granted to accused by a competent Court and. the discretion exercised by it did not appear to be fanciful, perverse or arbitrary, rather it had been properly exercised‑‑‑Petition for cancellation of bail was dismissed in circumstances.

Rajib and 2 others v. State 1992 MLD 2467; Ghulam Nabi v. State 1996 SCMR 1023; Hyder v. State 1990 PCr.LJ 70; Muhammad Haroon and another v. State 1994 SCMR 2061; The State v. Ali Muhammad Hingoro 1993 PCr.LJ 519; Syed Amanullah Shah v. State 1996 SCMR 241; Gulzar Ahmed v. State 199'7 MLD 1606 and Tariq Bashir v. State PLD 1995 SC 34 ref.

Altaf Hussain Surahio for Applicant.

Ahmed Ali Shaikh for Respondents.

2001 P Cr. L J 1464

[Karachi]

Before S.A. Rabbani, J

KHADIM‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑80 of 2001, decided on 3rd April, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.380/459/148/337‑H(2)‑‑‑Bail, grant of‑‑‑No recovery had been made from the accused‑‑‑Injury attributed to accused was simple in nature‑‑‑Prosecution witnesses including the complainant had filed affidavits before the Trial Court stating that due to dark night they were unable to identify the culprits‑‑‑State Counsel had no objection to grant of bail to accused‑‑‑Bail was allowed to accused in circumstances.

Muhammad Saleem Jessar for Applicant.

Abdul Fatah Mughal for the State.

2001 P Cr. L J 1475

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Musa K. Leghari, JJ

MUHAMMAD PARYAL‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.96 of 2000, heard on 22nd March, 2001.

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

‑‑‑S. 9(b)‑‑‑Appreciation of evidence‑‑‑Private Mashir of recovery mentioned in the challan had not been examined by the prosecution and no reasons had been assigned for giving him up‑‑‑Entry number was neither mentioned in the F.I.R. nor in the Mashirnama of arrest and recovery‑‑­Charas allegedly recovered from the possession of accused had been sent to Chemical Examiner after a delay of 24 days‑‑‑Weight of the Charas mentioned in the F.I.R. was different from its weight mentioned in the report of Chemical Examiner‑‑‑Accused was extended benefit of doubt in circumstances and he was acquitted accordingly.

Shahid v. The State decided on 14‑3‑2001 (unreported); 1996 SCMR 167 and 1995 SCMR 1414 ref.

Bahadur Ali Baloch for Appellant.

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

Date of hearing: 22nd March, 2001.

2001 P Cr. L J 1480

[Karachi]

Before Muhammad Roshan Essani, J

WAHID BUX‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.677 of 2000, decided on 15th February, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.353/324‑‑‑Bail‑‑‑Accused was named in the promptly lodged F.I.R.‑‑‑Incident had taken place in broad daylight‑‑‑Accused had allegedly caused three fire‑arm injuries on the belly of the prosecution witness and had deterred the public servants in performance of their duties‑‑‑Accused had been arrested on the spot with the fire‑arm‑‑‑Offence merely being not punishable with death or imprisonment for life was no ground for grant of bail in each and every case‑‑‑Bail was declined to accused in circumstances.

Muhammad Saleem v. State 1984 PCr.LJ 3086; Munir Ahmed v. The State 1994 PCr.LJ 1405; Wazir Zaman v. The State and another 1996 PCr.LJ 722; Akhtar Mehmood, Advocate and others v. State 1996 SCMR 1342; Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585; Muhammad Saleem v. The State 1984 PCr.LJ 3086; Muhammad Muzaffar v. The State 1995 PCr.LJ 1345 and Muhammad Abbas and another v. The State PLD 1988 SC (AJ&K) 14 ref.

Mughal Mumtaz Ali Khan for Applicant.

Muhammad Bachal Tonyo, A.A.‑G. for the State.

2001 P Cr. L J 1485

[Karachi]

Before Muhammad Ashraf Leghari, J

JAMIL AHMED ‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail No.202 of 2001, decided on 20th March, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail‑‑‑Ocular evidence of the incident was not available‑‑‑Accused was not nominated in the F.I.R.‑‑‑Motive was attributed to some other persons who had been let off by the police‑‑‑Accused had been implicated in the case on the statements of two prosecution witnesses recorded after an unexplained delay of 30 days who had not even implicated the accused in their statements recorded under S.161, Cr.P.C.‑‑‑Said prosecution witnesses appeared to have been set up by the police subsequently in connivance with the complainant party‑‑‑Recovery had been effected from the accused after nine days of the incident which had no nexus with the commission of murder‑‑‑No reasonable grounds existed to believe the accused being guilty of an offence covered by the prohibitory clause of S.497(1), Cr.P.C. and his case required further inquiry as contemplated by S.497(2), Cr.P.C.‑‑‑Accused was admitted to bail in circumstances.

Ghulam Mustafa Memon for Applicant.

Arshad Lodhi, A.A.‑G. for the State.

Qaiser Hayat for the Complainant.

2001 P Cr. L J 1491

[Karachi]

Before Sarmad Jalal Osmany, J

GUL HASSAN alias HASSAN and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.76 of 2001, decided on 28th March, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/114/34‑‑‑Bail‑‑‑Previous enmity between the parties was apparent from the F. I. R. itself‑‑‑One accused who was empty‑handed had allegedly instigated the others to kill the deceased‑‑‑Other accused though armed with a gun had not fired any shot which fact was corroborated by the recovery of only two empties of shot gun cartridges from the place of occurrence‑‑‑False implication of accused in the case could not be ruled out‑‑‑Presence of accused at the scene of crime alone was no ground to refuse bail on the basis of vicarious liability which could be determined at the trial‑‑‑Instigation to commit the crime was also yet to be proved by the prosecution at the time of trial with regard to vicarious liability of the accused‑‑‑Bail was granted to accused in circumstances.

Hyder v. The State 1990 PCr.LJ 70; Zulfiqar v. The State 1993 PCr.LJ 2242; Muhammad Sadiq v. The State 1996 SCMR 1654; Faraz Akram v. The State 1999 SCMR 1360 and Ghulam, Nabi v. The State 1996 SCMR 1023 ref.

Abdul Rasool Abbasi for Applicants.

Muhammad Azeem Panhwar for the State.

2001 P Cr. LJ 1499

[Karachi]

Before S. Ali Aslam Jafri, J

Mst. RAHIMA‑‑‑Applicant

versus

MOHSIN ALI and another‑‑‑Respondents

Criminal Miscellaneous Application No.196 of 1999 connected with Bail

Applications Nos.271 of 1997, 619 of 1998(Hyderabad) and 1258 of 1998(Karachi), decided on 9th February, 2001.

Criminal Procedure Code (V of 1898)‑‑­

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.302/201‑‑‑Cancellation of bail‑‑‑Accused had been granted bail on the ground of statutory delay which was his right subject to the bar contained in the fourth proviso to S.497(1), Cr.P.C.‑‑‑Nothing was available on record to show that the accused was a dangerous desperate or a hardened criminal or a previous convict or a terrorist‑‑‑Allegations that the accused had taken out a procession to celebrate his release on bail or that he had given threats to the complainant, had been denied by the accused on oath which even otherwise had not been substantiated on record‑‑‑Complainant should have been vigilant enough to keep an eye over the proceedings in the Court if she was having interest in the same‑‑‑Courts were not expected to issue notice to the complainant or the legal ‑heirs of the deceased to come and contest the proceedings‑‑­Petition for cancellation of bail granted to accused was dismissed in circumstances.

Faqirullah v. Khaliluzzaman and others 1999 SCMR 2203; Hyder Ali v. Nasir Khan alias Guddoo 1999 MLD 2185 and PLD 1995 SC 49 ref.

Hidayatuilah Abbasi for Applicant.

Qurban Ali H. Chohan for Respondent.

Muhammad Azeem Panhwar for the State.

Date of hearing: 17th January, 2001.

2001 P Cr. L J 1515

[Karachi]

Before Muhammad Mujibullah Siddiqui, J

MUHAMMAD RAFIQ‑‑‑Applicant

Versus

MUHAMMAD SIDDIQUE and another‑‑‑Respondents

Criminal Miscellaneous No. 501 of 1999, decided on 17th .April, 2001.

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

‑‑‑‑S. 145‑‑‑Dispute concerning land etc.‑‑‑Scope of 5.145, Cr.P.C.‑‑‑Purpose of S.145, Cr.P.C. is to prevent the breach of peace over dispute concerning land etc. and to make interim order for protecting the person in possession of the land and for this purpose the person forcibly and wrongfully dispossessed within a period of two month% can be treated as if he had been in possession of the land on such date.

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

‑‑‑S. 145‑‑‑Dispute concerning land etc. ‑‑‑Enquiry‑‑‑Scope‑‑‑Inquiry and probe envisaged in S. 145 Cr.P.C. can be undertaken if there are conflicting claims pertaining to the possession of the land in dispute either at the time of apprehension of the breach of peace or at a time of apprehension a period of two months before submission of police report‑‑‑Section 145, Cr.P.C. is to be read in totality and no subsection or a part thereof is to be read in isolation.

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

‑‑‑‑S. 145‑‑‑Dispute concerning land etc. ‑‑‑Jurisdiction of Magistrate‑‑­Magistrate under 5.145, Cr.P.C. is required to make appropriate order declaring entitlement to possession of a person and forbidding the other persons claiming the possession thereof till the title over the disputed land is decided by a competent Civil Court and the person in possession is evicted in due course of law. [p. 1522] C

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

‑‑‑‑S. 145‑‑‑Dispute concerning land etc.‑‑‑ Jurisdiction of Magistrate‑‑­Where one of the parties is admittedly in actual possession of the land in dispute for a period of more than two months before the order under S.145(1), Cr.P.C., Magistrate has no jurisdiction to initiate proceedings under S.145, Cr.P.C.

Debendra Chandra Sarkar v. Khodaram Sangma and others PLD 1951 Dacca 59; Ch. Muhammad Siddiq v. Sahibzada Sahibyar Khan PLD 1963 (W.P.) BJ 26; Nawabuddin v. Abdul Ghafoor 1988 PCr.LJ 335; Abdul Haque v. The State and another 1973 PCr.LJ 945; Muhammad Akbar v. Additional Sessions Judge, Lahore and 3 others 1983 PCr.LJ 1355 and Gulab Din v. Muhammad Salim 1985 PCr.LJ 721 ref.

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

‑‑‑‑Ss. 145 & 561‑A‑‑‑Quashing of proceedings‑‑‑Provisions contained in Chap. VIII & Chap. XII of the Code of Criminal Procedure were complementary to each other and were not derogatory or to the exclusion of each other as specifically provided in subsection (10) of S.145, Cr.P.C.‑‑­Magistrate according to the given circumstances of the case could only take necessary action for the prevention of breach of peace having recourse to the provisions contained in Ss. 107 to 126‑A, Cr.P.C. and he had no jurisdiction to make any inquiry about the fact of actual possession over the plot in dispute in view of the admitted possession of the applicant over it for the last four years‑‑‑Magistrate, thus, had exceeded his jurisdiction and the proceedings initiated by him under 5.145(1), Cr.P.C. were coram non judice and the same were quashed accordingly.

Debendra Chandra Sarkar v. Khodaram Sangma and others PLD 1951 Dacca 59; Ch. Muhammad Siddiq v. Sahibzada Sahibyar Khan PLD 1963 (W.P.) BJ 26; Nawabuddin v. Abdul Ghafoor 1988 PCr.LJ 335, Abdul Haque v. The State and another 1973 PCr.LJ 945; Muhammad Akbar v. Additional Sessions Judge, Lahore and 3 others 1983 PCr.LJ 1355; Gulab Din v. Muhammad Salim 1985 PCr.LJ 721; Muhammad Amir v. Abdul Hamid Khan PLD 1955 Pesh. 31; Bindhyachal Prasad Verma v. Madho Singh and others AIR 1946 Pat. 330; Sh. Shaukat Ali v. The State PLD 1965 Lah. 312 and Ghulam Mustafa v. Abdul Karim and others PLD 1964 Lah. 9 ref.

Mohammed A. Qureshi for Applicant.

Jawed Akhtaif for the State.

Date of hearing: 17th April, 2001.

2001 P Cr. L J 1530

[Karachi]

Before Muhammad Mujibullah Siddiqui, J

MUHAMMAD AMEER‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.23 of 1997, decided on 12th April, 2001.

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

‑‑‑‑S. 382‑B‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Consideration of detention period of accused by the Court while awarding sentence of imprisonment‑‑‑Section 382‑B, Cr.P.C. being a mandatory injunction of law, benefit of the same was extended to the accused by High Court which had been refused to him by the Trial Court, as he was found entitled to such benefit.

Qadir and another v. The State PLD 1991 SC 1065 ref.

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

‑‑‑‑S. 544‑A‑‑‑Payment of compensation to the heirs of the deceased etc.‑‑­Compensation under S.544‑A, Cr.P.C. being in addition to any sentence awarded to accused for the commission of an offence, doctrine of double jeopardy is not attracted.

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

‑‑‑‑S. 544‑A‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Compensation to the heirs, when 'may not be awarded ‑‑‑Where any Court while awarding any punishment under S.302. P.P.C. or any other relevant section of Penal Code has awarded the punishment of Diyat, Arsh or Daman, then such factor may be considered for non‑awarding of compensation under S.544‑A,‑ Cr.P.C.

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

‑‑‑-S. 544‑A‑‑‑Penal Code (XLV of 1860), 5.302‑‑‑Award of compensation to the heirs of the deceased‑‑‑Validity‑‑‑Trial Court while awarding sentence under S.302, P.P.C. had not directed for payment of any other amount and as such there were no circumstances warranting non‑awarding of mandatory compensation under S.544‑A, Cr.P.C.‑‑‑Award of compensation of Rs.50,000 under 5.544‑A, Cr.P.C. by the Trial Court was lawful to which no exception could be taken and the same was upheld accordingly ‑‑‑[Chutta and others v. The State 1995 PCr.LJ 755 dissented from].

Chutta and others v. The State 1995 PCr.LJI755 dissented from.

1994 PCr.LJ 1041 ref.

Mansoob Ali Qureshi for Appellant.

Fazal‑ur‑Rehman Awan for the State.

Date of hearing: 12th April, 2001.

2001 P Cr. L J 1534

[Karachi]

Before Abdul Ghani Shaikh, J

GUL MUHAMMAD and others‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Applications Nos.65 and 93 of 1998, decided on 8th May, 1998.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.337(ii)/337‑A(i)/452/147%148/ 149/504‑‑‑Pre‑arrest bail‑‑‑Accused, though named in the F.I.R., were not alleged to have caused any specific injury either to the complainant or his injured son‑‑‑Injuries received by the complainant and his son were attributed to co‑accused who had not applied for bail‑‑‑Accused were on interim bail for the tlast four months and were not required for investigation‑‑‑Bare contention of the complainant that the accused had misused the concession of bail by advancing threats required inquiry and was not acceptable as such‑‑­Prosecution had no objection to the confirmation of interim pre‑arrest bail already granted to accused and the same was confirmed in circumstances.

1987 SCMR 1522; 1994 PCr.LJ 1769; 1992 MLD 1914 and PLD 1989 SC 346 ref.

Imtiaz Ali Mugheri for Applicants.

Muhammad Ismail Bhutto for the State.

Date of hearing: 8th May, 1998.

2001 P Cr. L J 1538

[Karachi]

Before Muhammad Mujibi Siddiqui, J

MUHAMMAD RAMZAN BALOUCH Applicant

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No.60 of 998, decided on 24th April, 2001.

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

‑‑‑‑S. 561‑A‑‑‑Exercise of inherent powers by High Court‑‑‑Scope‑‑‑High Court in exceptional cases can exercise jurisdiction under 5..561‑A, Cr.P.C. without waiting for Trial Court to pass orders under S.249‑A or S.265‑K, Cr.P.C. if the facts of the case so warrant.

PLD 1997 SC 275 ref.

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

‑‑‑‑S. 561‑A‑‑‑Inherent powers of High Court‑‑‑High Court can exercise its inherent powers under S.561‑A, Cr.P.C. in the interest of justice to prevent the abuse of process of law and to advance the interest of justice and protect the rights and liberties of the citizens guaranteed in the Constitution and in doing so the normal course provided in law is neither to be skipped over nor diverted from.

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

‑‑‑‑S. 561‑A‑‑‑Inherent powers of High Court‑‑‑Abuse of process of law‑‑­Test‑‑‑Litmus test for ascertaining whether the case is of the abuse of process of law or not is that where prosecution has a prima facie case against the aggrieved person, High Court should not interfere in exercise of its inherent jurisdiction, but where prosecution does not possess any evidence whatsoever to bring on the record against the applicant/accused, then it would be a clear case of abuse of process of law for invocation of such jurisdiction of High Court to prevent the same.

Criminal Miscellaneous No:35 of 1994 ref

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

‑‑‑‑Arts. 3/4‑‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑‑Quashing of proceedings‑‑‑Prosecution had no evidence whatsoever against the accused and directing firm to approach the Trial Court would be nothing but harassment not warranted in law and the proceedings in the Trial Court would be a glaring example of the abuse of process of law‑‑‑Proceedings pending against the accused before the Trial Court were consequently quashed.

Criminal Miscellaneous No.1157 of 1993; Criminal Miscellaneous No.35 of 1994; A. Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353; Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122; PLD 1997 SC 275; Syed Zeeshan Hussain Kazmi v. The State and 3 others 2000 PCr.LJ 645; Muhammad Bux v. S.D.M. PLD 1999 Kar. 366; Dawood Khan Pathan v. The State 1999 PCr:LJ 2099 and Altaf Hussain v. Abdul Samad 2000 SCMR 1945 ref.

Abdul Waheed Katpar for Applicant.

Shoaib M. Ashraf for the State.

Date of hearing: 24th April, 2001.

2001 P Cr. L J 1579

[Karachi]

Before Muhammad Roshan Essani, and Muhammad Ashraf Leghari, JJ

MOULA BUX ‑‑‑ Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Applications Nos.662(Karachi), 622(Sukkur) and Miscellaneous Applications Nos.959, 1386 and 2235 of 2000, decided on 27th February, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/147/148/149/411‑‑­Bail‑‑‑Accused was named in the promptly lodged F. I. R. ‑‑‑Accused was armed with a Kalashnikov and had fired directly towards the injured and the deceased‑‑‑Case of co‑accused who was earlier' enlarged on bail was distinguishable from the accused‑‑‑Prosecution witnesses in their statements recorded under S.161, Cr.P.C. had implicated the accused‑‑‑Enmity existed between the parties‑‑‑Accused, despite being in knowledge of the registration of the case, had remained fugitive from law and did not explain his abscondence in his bail application‑‑‑Plea of alibi having been taken by the accused after lapse of ten months had reflected adversely not only on such plea but also on the genuineness of the documents supporting the same‑‑‑Ample evidence at such stage was available on record to suggest that the accused was guilty of the‑offence covered by the prohibitory clause of S.497(1), Cr.P.C.‑‑‑Bail was declined to accused in circumstances.

Faraz Akram v. The State 1999 SCMR 1360; Hafiz Khuda Bakhsh and another v. The State PLD 1988 SC 413; Mst. Janatan Bibi v. Sher Muhammad and others 1968 SCMR 795; Sakhi Sultan v. The State 1986 PCr.LJ 117; Waris Muhammad v. Haji Ahmed Yar and another 1976 SCMR 182; Muhammad Awais v, The State 1989 PCr.LJ 377 and Mureed v. The State 1987 PCr.LJ 1635 ref.

Muhammad Saleem for Applicant.

Sher Muhammad Shar, A.A.‑G. for the State.

Amanullah G. Malik for the Complainant.

200 P Cr. L J 1608

[Karachi]

Before A. Rabbani, J

QURBAN ALI ‑‑‑ Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑189 2001, decided on 13th April, 2001.

Criminal Procedure Cods (V of 1898)-‑‑

‑‑‑‑S. 497‑‑‑Penal Code (AV of 1860), Ss.324/379/511/34‑‑‑Bail‑‑‑Accused according to the F.I.R. was apprehended by the complainant Party at 1‑00 a.m. at night and one rifle wa secured from him‑‑‑Neither any theft had been committed nor anybody injured in the case‑‑‑Fact that the complainant party had apprehended accused at 1‑00 a.m. at night, but it had produced him before the police at noon had created a doubt about the prosecution case which had entitled to grant of bail‑‑‑Accused was admitted to bail accordingly.

Muhammad Saieed Jessar for Applicant.

Muhammad Ismail Bhutto for the State.

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2001 P Cr. L J 1624

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

ABDULLAH and 2 others‑‑‑Applicants

versus

EIDAN and another‑‑‑Respondents

Criminal Revision Application No‑76 and Miscellaneous Application No. 1970 of 2000, decided on 25th January, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 173 & 190‑‑‑Penal Code (XLV of 1860), 5.302‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Challan report‑‑‑Placing of accused in Column No.2 of report under S.173 of Cr.P.C.‑‑‑Summoning of such accused persons‑‑‑Jurisdiction of Trial Court‑‑‑Accused persons were found innocent by the Investigating Officer and were placed in Column No.2 of the report‑‑‑Trial Court on application made by the complainant, summoned the accused persons to face the trial‑‑‑Validity‑‑‑Report of Investigating Officer was not binding on the Court and notwithstanding recommendation of Investigating Officer regarding cancellation of case and discharge of accused persons from allegation, Trial Court was authorized to take cognizance as provided in S.190, Cr.P.C.‑‑‑Trial Court had rightly summoned the accused persons and there was no irregularity or illegality or impropriety in the order passed by the Court.

Inayatullah and others v. The State and others 1999 PCr.LJ 731; 1990 PCr.LJ 1190; 1993 PCr.Li 686 and 1991 PCr.LJ 443 ref.

Falak Sher and others v. The State PLD 1967 SC 425; Mukhtiar Ali and others v. Sono and others PLD 1993 Kar. 342 and 1998 SCMR 1128 rel.

Shaikh Amanullah for Applicants.

Manzoor Ahmed Junejo for Respondent No. 1

Mumtaz Ali Siddiqui for the State.

2001 P Cr. L J 1628

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

MUHAMMAD KHAN‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.68 of 2001, decided on 28th February, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/147/148‑‑‑Bail, grant of‑‑­Only allegation against the accused was that he, during the course of investigation, led the police party and produced the rifle‑‑‑Name of the accused did not appear in the F.I.R. and not a single witness had implicated the accused in the commission of offence‑‑‑Accused was arrested about three months after the alleged incident‑‑‑Case against the accused required further inquiry as no reasonable grounds existed to believe that the accused was guilty of offence covered by the prohibitory clause of S.497, Cr.P.C.‑‑‑Bail was granted to accused.

Wali Dino A. Narejo for Applicant.

Sher Muhammad Shar, A.A.‑G. for the State.

2001 P Cr. L J 1629

[Karachi]

Before Muhammad Ashraf Leghari, J

ALI DINO ‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Revision No.92 of 1999, heard on 22nd February, 2001

West Pakistan Arms Ordinance (XX of 1965)‑‑‑

‑‑‑‑S. 13‑D‑‑‑Appreciation of evidence-‑‑Recovery of the .30 bore T.T. Pistol with its magazine containing four live bullets having been effected from personal search of accused while he was on his way in an abandoned place in odd hours of the night, presence of private Mashirs at the time of recovery was out of question‑‑‑Police had no enmity with the accused to involve him in the false case‑‑‑Sealing of the recovered pistol at the spot was not essential as the same was not required in any injury case‑‑‑Defence had not suggested to the prosecution witnesses that the pistol produced in the Court was not in working condition‑‑‑Recovery itself having been denied, argument was not tenable that the pistol was neither sealed at the spot nor it was not in working condition‑‑‑Weapon which required licence could not be kept in possession even if it was out of order‑‑‑Impugned judgment having not suffered from any illegality or misreading of evidence did not call for any interference‑‑‑Conviction and sentence of accused were upheld in circumstances.

Sajjan v. The State 1998 PCr.LJ 1399; Qalandro alias Nazro v. State 1997 MLD 1632 and Loung through Superintendent, Central Prison, Hyderabad v. The State 1999 PCr.LJ 595 ref.

Abdul Karim Noorani for Applicant.

Sher Muhammad Shar, A.A.‑G. for the State.

Date of hearing: 22nd February, 2001.

2001 P Cr. L J 1636

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

SHAHZAD and 3 others‑‑‑Applicants

versus

THE STATE and another‑‑‑Respondents

Criminal Revision No.6 of 2001, decided on 6th April, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 309, 310, 311 & 324/34‑‑‑Criminal Procedure Code (V o1 1898), Ss.345 & 439‑‑‑Waiver of right of Qisas‑‑‑Compromise having been arrived at between the legal heirs of the deceased and the accused, they filed compromise application supported by their affidavits‑‑‑Trial Court which neither had accepted compromise application nor had rejected the same, passed order to proceed with the matter under Ss.302 & 311, P.P.C. attracting the offence of "Fasad‑fil‑Arz"‑‑‑Validity‑‑‑Legal heirs of the deceased having waived their right of Qisas without compensation under S.309, P.P.C. had filed compromise application, the Trial Court was left with no option, but to accept the compromise if its requirements had been fulfilled‑‑‑Provisions of S.311, P.P.C. were applicable in those cases where there was no compromise as a whole‑‑‑Incumbent upon the Trial Court to pass necessary orders under S.345(6), Cr.P.C. and acquit the accused if there was compromise in respect of compounding of Qisas as well compounding of offence‑‑‑Trial Court was not justified to apply provisions of S.311, P.P.C. relating to "Farad‑fil‑Arz" without collecting any evidence pertaining to the past conduct and previous conviction‑‑‑Whether any person was or was not the legal heir of the deceased was mandatorily to be examined‑‑‑Order passed by the Trial Court, was set aside, in circumstances.

Nazakat Hussain v. The State PLD 1996 SC 178; Nazar Ali and others v. The State PLD 1992 Pesh. 176 and Manzoor Elahi v. The State and others 2001 PCr. LJ 64 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 317‑‑‑Succession‑‑‑If the accused who were sons of the deceased had killed their father on land dispute they, as heirs of deceased, could be debarred from inheritance of property of the deceased according to Islamic Law‑‑‑Where deceased was not issueless, real sister of the deceased could not be termed as legal heir of the deceased and according to Islamic Law sons and daughters of the deceased were legal heirs of the deceased.

(c) Interpretation of statutes‑‑‑

‑‑‑‑Construction‑‑‑Court should not act and insist upon the strict phrases of provisions of law relating to discretion which could bring some unpleasant result in future.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 311‑‑‑Compounding of offence‑‑‑Discretionary power of the Court, exercise of‑‑‑Court should not act and insist upon the strict phrases of provisions of law relating to discretion which may bring unpleasant result in future.

Mushtaq Hussain Shah alongwith Nusrat Hussain Memon for Applicants.

Mughal Mumtaz Ali Khan for the Complainant.

Muhammad Bachal Tonyo, Addl. A.‑G. alongwith Nidamuddin Brohi for the State.

2001 P Cr. L J 1643

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

ZULFIQAR ALI and others‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Applications Nos.10 and 33 of 2001, decided on 28th February, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), 5.302/34‑‑‑Bail, grant of‑‑‑Three of the accused persons alongwith co‑accused duly armed with lethal weapons barged into the house of complainant and fired at the deceased who died after receiving fatal injuries and a lady was also injured‑‑‑Empties were recovered from the place of occurrence‑‑‑Accused persons had been implicated by all the eye‑witnesses of the incident including the injured‑‑‑Motive had been specifically disclosed in the F.I.R.‑‑‑Bail application of accused persons was rejected‑‑‑Name of other accused did not appear in the F.I.R. and no overt act had been ascribed to him‑‑‑Case of said accused requiring further enquiry, he was granted bail.

Muzaffar Ali Shaikh for Applicants (in Criminal Bail Application No. 10 of 2001).

Sajjad Hussain Kolachi for Applicant (in Criminal Bail Application No.33 of 2001).

Muhammad Bachal Tonyo, Addl. A.‑G. for the State.

2001 P Cr. L J 1647

[Karachi]

Before Faiz Muhammad Qureshi, J

Haji ABDULLAH‑‑‑Applicant

versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous Application No.117 of 2001, decided on 21st February, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.145(1) & 561‑A‑‑‑Quashing of proceedings‑‑‑Magistrate without issuing any notice to the applicant or to the Body who were managing and operating timekeeping since the year 1985, had attached the Bus Stand Premises by means of the impugned order depriving them of their legal right at the instance of some influential persons by showing the dispute over the said Bus Stop between the parties‑‑‑Provisions of 5.145, Cr.P.C. had not been followed by the Magistrate while passing the aforesaid order which did not show that the incident having occurred in the year 1989 had entailed imminent danger of breach of peace over the subject­matter in dispute and the Magistrate, thus, had not taken into consideration the law involved in the matter‑‑‑Proceedings initiated by the Magistrate under S.145, Cr.P.C. and the impugned order were quashed in circumstances.

1996 PCr.LJ 560 and 1968 PCr.LJ 1882 ref.

Allah Bachayo Soomro for Applicant.

Ali Azhar Tunio for A.‑G. for the State.

2001 P Cr. L J 1650

[Karachi]

Before Muhammad Roshan Essani, Actg. CJ

MUHAMMAD MUNIR‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Transfer Application No.35 of 2000, decided on 19th March, 2001.

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

‑‑‑‑S. 526‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts.131, 132 & 133‑‑‑Transfer of case‑‑‑Examination and cross‑examination of witnesses‑‑‑Relevancy of question‑‑‑Duty of Court‑‑‑Applicant/accused had sought transfer of his case on ground that Trial Court had disallowed important questions in cross­examination put by his counsel to the prosecution witnesses which were essential for the just adjudication of the case‑‑‑Validity‑‑‑Counsel for the accused had put irrelevant questions to the prosecution witnesses ‑‑‑Duty of the Court was to decide about the relevancy, irrelevancy, admissibility or inadmissibility of the questions put to the witnesses‑‑‑Object of the cross­examination was to elucidate the truth‑‑‑Presiding Officer of the Court had to ensure that the witness was not harassed by way of any irrelevant question‑‑­Witness was as respectable as any other person till proved otherwise‑‑‑Both sides of the scales were to be kept even and not to be tilted on either side, application for transfer of the case was rejected in circumstances.

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

‑‑‑‑S. 526‑‑‑Transfer of case‑‑‑Mere apprehension in the mind of a party that he would not get justice at the hands of Presiding Officer of the Court, was no ground for the transfer of the case‑‑‑Apprehension must be reasonable and the reasonableness was to be decided looking at the peculiar facts and circumstances of each case‑‑‑Merely because certain irrelevant questions were put to the witness and disallowed by the Trial Court, same would not furnish sufficient ground for the transfer of the case.

I.A. Usmani for Applicant.

Habib Ahmed, A.A.‑G. for the State.

Date of hearing: 19th March, 2001.

2001 P Cr. L J 1652

[Karachi]

Before Wahid Bux Brohi, J

KHUDA BUX‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. S‑65 of 2001, decided on 29th March, 2001.

Criminal Procedure Code (V of 1898)---

‑‑‑‑S. 497‑‑‑Penal injuries on the person of the victim were attributed to the accused who, to the background of the case, .had dealt with the victim in a cruel manner‑‑­Allegation to commit Qatl‑e‑Amd, therefore, did not call for further inquiry‑‑‑Plea raised on behalf of accused could justly be appreciated in the light of the evidence recorded at the trial and at such stage it was premature to go deep into the evidence‑‑‑Bail was declined to accused in circumstances.

Karim Bux v. State 1983 PCr.LJ 2379 and Jan Muhammad v. Noor Jamal 1998 SCMR 500 ref.

Muhammad Ali Soomro for Applicant.

Muhammad Iqbal Memon for the State.

2001 P Cr. L J 1657

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

THE STATE‑‑‑Appellant

versus

SALEEM alias GUDOO and others‑‑‑Respondents

Criminal Acquittal Appeal No.92 of 1996, decided on 11th April, 2001.

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

‑‑‑‑Ss. 417 & 492‑‑‑Penal Code (XLV of 1860), Ss.337‑A & 337‑F‑‑­Appeal against acquittal‑‑‑Competency‑‑‑Appeal was objected to on the around that same was to be filed by Public Prosecutor on the direction of the Provincial Government but had been filed by Advocate‑General who was not a Public Prosecutor as envisaged under S.492, Cr.P.C.‑‑‑Advocate‑General having specifically been appointed as Public Prosecutor by the Provincial Government through Notification for the entire Province, the appeal filed by Advocate‑General was competent in law.

State v. Hanif Ahmad 1994 SCMR 749; State v. Javed Iqbal 1997 PCr.LJ 591; State v. Nooru alias Noor Muhammad 1998 PCr.LJ 35; State v. Badlo Gosh alias Galu Fakir and another 1999 PCr.LJ 416; Qadir Bux and others v. The Crown PLD 1955 FC 79; State v. Muhammad Hussain PLD 1968 SC 265; State v. Muhammad Salim Baig 1989 PCr.LJ 1849 and Mst. Shabana Naz v. Mst. Hukum Jan 2000 SCMR 1480 ref.

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

‑‑‑‑Ss. 249‑A & 417‑‑‑Penal Code (XLV of 1860), Ss.337‑A & 377‑F‑‑­Appeal against acquittal‑‑‑Prosecution witnesses had fully implicated the accused, but the Trial Court had not considered at all the evidence of said witnesses who had supported the prosecution case‑‑‑Trial Court had not taken pains to issue summons to the Medical Officer and to take coercive process for the attendance of Investigating Officer‑‑‑Trial Court had also failed to give any finding as to whether the charge was groundless or there was no possibility of the accused being convicted in any offence, which was the condition precedent for the exercise of jurisdiction under 5.249‑A, Cr.P.C.‑‑‑Trial Court, in circumstances, had improperly exercised the jurisdiction vested in it under S.249‑A, Cr.P.C.‑‑‑Acquittal order passed by the Trial Court being not maintainable in fact and law, High Court set aside order of Trial Court and remanded case to be decided afresh in accordance with law.

Jawed Akhtar for the State.

Mahmood A. Qureshi for Respondents.

Date of hearing: 11th April, 2001.

2001 P Cr. L J 1668

[Karachi]

Before Muhammad Afzal Soomro, J

KHADIM‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑531 of 2000, decided on 12th February, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.336/337‑A(i)/337‑H(ii)/504/ 114/147/148/149‑‑‑Bail, grant of‑‑‑Case being of two versions it was yet to be determined as to which party had acted in aggression‑‑‑Medical Board of Doctors had found that the opinion regarding the injury described by the first Dental Surgeon as "Itlaf‑e‑tooth" had been reversed and eventually the case would fall under 5.337‑U, P.P.C, (Arsh for teeth) which would come to the one‑twentieth of the Diyat and for which no punishment was prescribed‑‑­Case of accused in view of the contentions required further inquiry as contemplated by S.497(2), Cr.P.C.‑‑‑Accused was admitted to bail in circumstances.

Shoaib Mehmood Butt and others v. The State 1996 SCMR 1845; Mehmood Hussain v. The State 1993 PCr.LJ 623; Haji Maauddin v. The State 1998 SCMR 1528; Muhammad Anwar v. The State 1983 SCMR 1001 and Muhammad Ayub and others v. The State 1980 PCr.LJ 600 ref.

Suresh Kumar Andani for Applicant.

Ghulam Shabbir Shar for the Complainant.

Nidamuddin Brohi for the State.

Date of hearing: 2nd November, 2000.

2001 P Cr. L J 1672

[Karachi]

Before Muhammad Roshan Essani, Actg. CJ

GHULAM ABBAS and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 136 of 1998, decided on 12th March, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 324/34‑‑‑Appreciation of evidence‑‑‑All the prosecution witnesses were interested‑‑‑Incident occurred in a thickly‑populated area and many other independent private persons were available, but they were not examined‑‑‑Alleged incident occurred in front of house of one of the prosecution witnesses but his name did not transpire in the F.I.R.‑‑‑Police reached the scene of offence short time after the incident, but no blood was found at the scene of offence‑‑‑Investigating Officer had himself stated that he had not seen prosecution witnesses when he visited the scene of incident‑‑‑Investigation commenced before lodging of the F.I.R.‑‑‑Enmity between the parties was admitted and the witnesses were hostile to the accused party‑‑‑Evidence of such interested witnesses lacked independent corroboration‑‑‑Said witnesses even did not belong to the place where incident had taken place‑‑‑Gross conflict and inconsistency was found between the ocular and medical evidence‑‑‑No source of light was disclosed in the Mashirnama, of the scene of offence and the weapons used in the commission of offence were not recovered from any of the accused‑‑‑Ocular evidence was not corroborated by any material evidence‑‑‑Accused were acquitted of the charge extending them benefit of doubt, in circumstances.

(b) Criminal trial‑‑‑

‑‑‑‑ Benefit of doubt‑‑‑Not necessary that many reasons should exist for creating doubt, even a single infirmity creating a reasonable doubt was sufficient to discredit the prosecution story and benefit thereof was to be extended to the accused.

Tariq Pervez v. The State 1995 SCMR 1345 ref.

Shaikh Muhammad Mushtaq for Appellants.

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

Date of hearing: 12th March, 2001.

2001 P Cr. L J 1679

[Karachi]

Before Wahid Bux Brohi, J

ABDULLAH KHAN and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1185 of 2000, decided on 12th February, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail‑‑‑Delay in recording the statements of witnesses under S.161, Cr.P.C. had been explained and such explanation could not be rejected outright at such stage‑‑­Previous enmity existed between the parties‑‑‑Presence of accused in the company of co‑accused at the time of incident which took place in the odd hours of the night had, prima facie, connected them with the crime and such evidence could not be discarded at bail stage‑‑‑Bail plea was premature‑‑‑Bail was declined to accused in circumstances.

Muhammad Din v. State 1994 PCr.LJ 1081; Muhammad Mehmood v. State 1995 PCr.LJ 1342; Asadullah v. State 1999 SCMR 1034 and Farzand Ali v. Taj 2000 SCMR 1854 ref.

Shahadat Awan for Applicants.

Umer Farooq Khan for the Complainant.

Behram Khan Ujjan for the State.

2001 P Cr. L J 1682

[Karachi]

Before Faiz Muhammad Qureshi, J

BULLANDO and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.94, 80, 109, 97 and J/83 of 2000, decided on 15th February, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/149, 404 & 148‑‑‑Appreciation of evidence‑‑‑As to who had caused fatal blow to the deceased was not clear ‑‑‑F.I.R. was delayed by six hours‑‑‑Complainant was not eye‑witness of the occurrence‑‑‑Eye‑witnesses had narrated different times and places of occurrence which showed that either they were not present on the spot or they had suppressed the material facts‑‑‑Doctor had not produced in Court the original post‑mortem reports of the deceased persons and had placed on record the notes copied from the police case diary which were not in his own handwriting‑‑‑Ocular testimony was not supported by medical evidence‑‑‑Weapons of offence were not recovered from the accused‑‑‑No Ballistic Expert Report was placed on record‑‑‑Enmity between the parties was admitted not only in the F.I.R. but also in prosecution evidence‑‑‑Despite the availability of the‑ prosecution witnesses at the place of incident their statements had been recorded under S.161, Cr.P.C. after a delay of 24 hours which was not explained by the prosecution‑‑‑All the pieces of prosecution evidence suffered from inherent deficiencies and one defective evidence could not corroborate other defective evidence‑‑‑Accused were acquitted on benefit of doubt in circumstances.

1992 SCMR 545; 1999 PCr.LJ 680; 1998 PCr.LJ 779; 1997 MLD 997; 1999 SCMR 729; 1997 PCr.LJ 459; 1988 PCr.LJ 500; 1982 SCMR 545; 1995 SCMR 127; 1998 SCMR 1847; 1997 SCMR 438; 1989 MLD 103; 1974 PCr.LJ 400; PLD 1963 SC 17; 1993 SCMR 550; 1999 PCr.LJ 1565; 1985 SCMR 1573 and 1995 SCMR 1345 ref.

Syed Madad Ali Shah for Appellants (in Criminal Appeals Nos.94 and 109 of 2000).

Nibhando Khan for Appellant (in Criminal Appeal No.80 of 2000).

Muhammad Azeem Panhwar (in Criminal Appeals Nos.97 and J/83 of 2000)

Rasheed A. Qureshi, Asstt. A.‑G., Sindh for the State, Date of hearing: 15th February, 2001.

2001 P Cr. L J 1691

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

GHULAM MURTAZA‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 18 of 2001, decided on 28th February, 2001

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.324, 337‑H(iij, 148, 149 & 114‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Bail, grant of‑‑‑Accused alongwith his companions made direct firing upon the complainant and prosecution witnesses with fire‑arms but not a single scratch had been received by any of the witnesses‑‑‑Enmity existed between the parties‑‑‑Accused was no more required for the purpose of investigation‑‑­a Accused, in circumstances, was entitled to bail.

Manzoor Ahmed Junejo for Applicant.

Sher Muhammad Shar, Asstt. A.‑G. for the State.

2001 P Cr. L J 1692

[Karachi]

Before Wahid Bux Brohi, J

MAHFOOZ‑UR‑REHMAN and others‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1227 of 2000, decided on 13th December, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.337‑A, 337‑F(vi), 147, 148 & 149‑‑‑Bail. grant of‑‑‑Date off occurrence was changed at the top of the F.I.R. but text of the F.I.R. was still the same‑‑‑Such fact was to be explained by Police Officer concerned who could give the time when he recorded the statement under S.154, Cr.P.C. but his statement under 5.161, Cr.P.C. was totally silent on the point‑‑‑Case against the accused was of two versions and the correctness of either of said versions would be resolved finally at the conclusion of the trial‑‑‑Case of the accused requiring further inquiry, bail was granted to him.

Shafi Muhammad for Applicants.

Mehmood A. Qureshi for the Complainant.

M. Ismail Memon for the State.

2001 P Cr. L J 1697

[Karachi]

Before Muhammad Afzal Soomro, J

DOST MUHAMMAD and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.44 of 2001, decided on 16th February, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑.‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.380/457‑‑‑Bail‑‑‑Names of accused appeared in the F. I. R. ‑‑‑Accused had been properly identified during the course of incident in electric light‑‑‑Stolen property had been recovered from the accused details of which had been given in the F.I.R.‑‑‑Delay in lodging the F.I.R. had been properly explained‑‑‑Offence fell under second part of S.457, P.P.C. which being punishable with 14 years' R.I. was hit by the prohibitory clause of S.497(1), Cr.P.C.‑‑‑Bail was disallowed to accused in circumstances.

Manzoor Ali alias Mumtaz v. The State 2001 PCr.LJ 344; Tariq Bashir and others v. The State PLD 1995 SC 34; Mehga v. State 1994 PCr.LJ 86; Ayaz Ali v. State 2000 PCr.LJ 1031 and Muhammad Rauf v. State 2000 YLR 1911 ref.

Muhammad Ayaz Soomro for Applicants.

Altaf Hussain Surahio for the State.

2001 P Cr. L J 1700

[Karachi]

Before Muhammad Roshan Essani, J

BANGUL‑‑‑Petitioner

versus

PROVINCE OF SINDH and others‑‑‑Respondents

Constitutional Petition No. S‑1164 of 2000, decided on 2nd April, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Criminal Procedure Code (V of 1898), S.154‑‑‑Constitutional petition‑‑‑Registration of F.I.R.‑‑‑Contention of the petitioner on consideration by the Investigating Agency during the course of investigation was proved false ‑‑‑Averments made by the proposed accused in their counter‑affidavit had gone unchallenged as no rejoinder to it had been filed by the petitioner‑‑‑Entire evidence was available with the petitioner and adequate remedy by way of a direct complaint was also available to him which he could avail before the proper forum provided under the law‑‑‑­Constitutional petition was dismissed in circumstances.

1989 PCr.LJ 1129; 1989 PCr.LJ 1945; 1993 PCr.LJ 1286;1999 PCr.LJ 512; PLD 1988 Kar. 521; 1990 PCr.LJ 2006 and 1993 PCr.LJ 1056 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Discretion conferred upon High Court under Art.199 of the Constitution cannot be exercised as a matter of right or as a matter of course‑‑‑High Court acts in aid of law and not to hamper the smooth working of the Agencies established by law or to set up any hegemony in itself and thwart the procedural law.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Constitutional jurisdiction of High Court is not an additional or alternate jurisdiction‑‑‑High Court can issue writ if the Court is satisfied that no other efficacious or adequate remedy is available under law.

Imdad Ali Awan assisted by Shaikh Amanullah for Petitioner.

S. Mushtaq Hussain Shah for the Proposed Accused.

Sher Muhammad Shar, Asstt. A.‑G. for the State.

Date of hearing: 9th February, 2001.

2001 P Cr. L J 1707

[Karachi]

Before Muhammad Ashraf Leghari, J

DUR MUHAMMAD ‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.79 of 2001, heard on 30th March, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail‑‑‑Accused though armed with a hatchet did not take any active part in the incident‑‑‑Motive for the occurrence was attributed to co‑accused‑‑‑Complicity of accused in the crime by way of vicarious liability was yet to be established at the time of trial‑‑‑Case of accused, in circumstances, needed further. inquiry and he was admitted to bail accordingly.

Aziz Ahmed Khuwaja for Applicant.

Sher Muhammad Shar, Asstt. A.‑G. for the State.

2001 P Cr. L J 1719

[Karachi]

Before Anwar Zaheer Jamali and Zia Pervez, JJ

Hafiz GHULAM AKBAR‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Applications' Nos.295 and 397 of 2000, decided on 21st March, 2001.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860); Ss.302/324/1,14/148/149‑‑‑Bail‑‑­Specific role of causing the death of the deceased by direct firing with a Kalashnikov had been attributed to the accused in the promptly lodged F.I.R.‑‑‑Prosecution witnesses including five injured persons, whose presence at the spot could not be doubted, had fully supported the prosecution case in their statements recorded under S.161, Cr.P.C.‑‑­Material available with the prosecution showing full involvement of the accused in the crime could not be overlooked on the plea of alibi based on some hospital record showing provisional diagnosis about the nature of ailment of accused as gastro‑enteritis ‑‑‑Such plea of accused was still to stand the test of scrutiny during the trial and deeper appreciation of the same was not permissible at bail stage‑‑‑Court was not bound by the ipsi dixit of police and mere fact of the name of the accused having been placed in Column No.2 of the supplementary challan, though he was shown as an absconder in the original challan, could not ipso facto, make his case of two versions or of further inquiry‑‑‑Bail was refused to accused in circumstances.

1970 SCMR 299; 1982 SCMR 440; 1984 SCMR 429; 1997 SCMR 1829; 1977 SCMR 27; PLD 1974 SC 83; 1984 SCMR 221; 1996 SCMR 931; 1985 SCMR 1314; PLD 1998 SC 97; 1988 SCMR 1428; Nazar Muhammad v. The State and another PLD 1978 SC 236 and Safdar Abbas and 2 others v. The State PLD 1987 SC 467 ref.

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

‑‑‑‑S. 497‑‑‑Bail‑‑‑Application for‑‑‑Precedent‑‑‑No universal rule of application for the purpose of bail can be deduced from the decision of any particular case which can be pressed into service in each case.

Nazar Muhammad v. The State and another PLD 1978 SC 236 and Safdai Abbas and 2 others v. The State PLD 1987 SC 467 ref.

Abdul Sattar Kazi for Applicant.

Jawed Akhtar for the State.

2001 P Cr. L J 1724

[Karachi]

Before Mushir Alam, J

Mst. SAIMA‑‑‑Applicant

versus

ISMAIL KHAN and others‑‑‑Respondents

Criminal Miscellaneous Application No.163 of 2000, decided on 18th July, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 491‑‑‑Habeas corpus petition‑‑‑Custody, of minor‑‑‑Habeas corpus petition would not provide forum to finally decide the fate of the custody of the minor‑‑‑Appropriate forum for determining the ultimate custody of the minor was the Guardian Court‑‑‑High Court under 5.491, Cr.P.C., in appropriate cases, could pass interim order pending the resolution of the dispute by the Guardian Court, where the question of interest, welfare and the ultimate custody of the minor was to be adjudicated after proper appreciation of the facts and circumstances‑‑‑Minor, in the present case, being of one year of age, it was directed by the High Court as an interim measure that custody of the minor be handed over to the petitioner mother.

Abdul Rehman Khakwani and another v. Abdul Majid Khakwani and 2 others 1997 SCMR 1480 and Nisar Muhammad and another v: Sultan Zari PLD 1997 SC 852 ref.

Manzoor Ahmad Khan and Miss Shahnaz Ishtiaq for Petitioner.

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

2001 P Cr. L J 1731

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

ILLAHI BUX‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.688 of 2000, decided on 28th February, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.324/353/409/34‑‑‑Bail, grant of‑‑‑Accused was no more required for the purpose of investigation‑‑­Allegation of encounter between the complainant party and the accused was made but not a single scratch was caused to the either party‑‑‑Accused was in jail for a considerable period, but case against him was not completed‑‑­Offence alleged against the accused was not punishable with death, imprisonment for life or ten years‑‑‑Case against the accused being that of further enquiry he was entitled to bail.

Mushtaq Hussain Shah for Applicant.

Sher Muhammad Shar, Asstt. A.‑G. for the State.

2001 P Cr. L J 1732

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

MUHAMMAD SALEH‑‑‑Petitioner

versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous Application No.1869 of 2000 and Constitutional Petition No. 168 of 2001, decided on 17th January, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 382‑B‑‑‑Consideration of period of detention while awarding sentence of imprisonment‑‑‑Judicious discretion, exercise of‑‑‑Benefit of S.382‑B, Cr.P.C. was mandatory‑‑‑Judicious discretion was always to be exercised in favour of convict unless it was unjustified or caused harm to any other party.

Habibullah Shaikh for Petitioner.

Abdul Ghafoor Pirzada on behalf of A.A.‑G. for the State.

Date of hearing: 17th January, 2001.

2001 P Cr. L J 1736

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Musa Leghari, JJ

ASHIQUE HUSSAIN LEGHARI‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No of 2000, heard on 3rd May, 2001.

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

‑‑‑‑S. 9(b)‑‑‑Appreciation of evidence‑‑‑F.I.R. had shown that the complainant, the official of Excise Department, alongwith his subordinate staff vide Roznamcha Entry No.1 had left their office on receipt of spy information and proceeded towards the house of the accused ‑‑‑Roznamcha containing the said entry had not been produced before the Trial Court‑‑­Non‑production of such document had cut the root of prosecution case‑‑‑Out of 435 grams of narcotics allegedly recovered from the accused, 225 grams had been separated by the complainant and despatched the same to the expert for analysis, but no explanation was given with regard to the rest of the quantity and what happened to the same was not clear from the record‑‑­Benefit of doubt, in circumstances, would go to the accused‑‑‑Complainant had admitted that F.I.R. was written on his direction by Excise Inspector and the statements under S.161, Cr.P.C. had also been written by the same Mashir, but the prosecution had failed to get the said Mashir examined and no mason had been assigned by the prosecution as to why he had been given up‑‑‑Prosecution having miserably failed to prove its case against the accused beyond reasonable doubt, judgment awarding conviction and sentence to the accused was set aside and the accused was ordered to be released forthwith.

1997 MLD 1632; 1998 PCr.LJ 1368 and 1996 SCMR 167 ref.

Khalid Iqbal Memon for Appellant.

Gul Hassan Solangi for the State.

Date of hearing: 3rd May, 2001.

2001 P Cr. L J 1758

[Karachi]

Before Zahid Kurban Alavi, J

IRSHAD ALI JANWRI‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Revisions Nos.(S)26 and 41/Suk of 2000, heard on 25th April, 2001.

West Pakistan Arms Ordinance (XX of 1965)‑‑‑

‑‑‑‑S. 13‑D‑‑‑Criminal Procedure Code (V of 1898), 5.439‑‑‑Appreciation of evidence‑‑‑Order of Judicial Magistrate whereby the accused/petitioner was sentenced to suffer R.I. for Three years having been upheld in appeal, the accused had filed revision against concurrent judgment of Courts below‑‑‑No independent witness was available in the case despite it was day time incident and there was no problem for the police to have obtained independent witness‑‑‑Complainant alongwith the prosecution witnesses were all members of the police force‑‑‑Chance of police thrusting unnumbered pistol into the hands of the accused could not be ruled out‑‑‑Material contradictions were found in the statements of complainant and prosecution witnesses and several lacunas existed in the evidence‑‑‑Sentence and conviction passed concurrently by Courts below against the accused, were set aside, in circumstances.

Muhammad Ayaz Soomro for Applicant.

Muhammad Ismail Bhutto for the State.

Date of hearing: 16th April, 2001.

2001 P Cr. L J 1762

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Musa K. Leghari, JJ

MUHAMMAD ACHAR MACHI‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Jail Appeal No.D‑24 of 2001, heard on 3rd May, 2001.

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

‑‑‑‑S. 9(b)‑‑‑Appreciation of evidence‑‑‑Whole case of prosecution depended on Roznamcha entry showing time and date when the complainant alongwith other police officials set out for patrolling, but said entry had not been produced by the prosecution before the Trial Court‑‑‑Presumption could be that police party had not left the concerned police station for patrolling and the accused had been victimized by the police in order to keep their pockets up‑‑‑Property allegedly recovered from the possession of the accused had been sent after delay of seven months and said delay remained unexplained‑‑­No signature was found on the statement under S.342, Cr.P.C. of the accused on the first page of said statement which was a flagrant violation of the mandatory provisions of S.342(2), Cr.P.C.‑‑‑Prosecution having miserably failed to make out the case against the accused, judgment convicting and sentencing him passed by the Trial Court was set aside and he was ordered to be released forthwith.

Qalandaro alias Nazro v. The State 1997 MLD 1632; Fareed Ahmed Langra v. The State 1998 PCr.1J 1368 and Raees Khan v. The State 1991 PCr. LJ 617 ref.

Asif Ali Abdul Razzaq Soomro for Appellant. Abdul Fatah Mughul for the State.

Date of hearing: 3rd May, 2001.

2001 P Cr. L J 1782

[Karachi]

Before Zahid Kurban Alavi and S.A. Rabbani, JJ

ALI HASSAN MIRBAHAR and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.D‑85 of 2000, Criminal Jail Appeals Nos.D‑85, D‑82, D‑86 and 87 of 1994, heard on 18th April, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 307/324/365‑A/149‑‑‑Appreciation of evidence‑No other evidence of any sort was found against one of the accused persons to connect him with the offence beyond identification which was held after eight months of the incident‑‑‑Trial Court had based conviction of other accused person only on testimony of two police officials in respect of identification‑‑‑Court had observed that evidence of prosecution witnesses had been corroborated by the circumstantial evidence, but it had not been explained as to what was the circumstantial evidence that had corroborated the evidence in respect of identification‑‑‑Evidence produced by the prosecution before the Trial Court against the accused persons was too inadequate to base conviction thereon‑‑­Case against the accused having not been proved beyond doubt, the conviction and sentence awarded to them could not be maintained‑‑‑Accused; were ordered to be released forthwith.

Muhammad Ayaz Soomro for Appellants (in Criminal Jail Appeal No.D‑85 of 1994).

Nisar Ahmed Abro for Appellants (in Criminal Jail Appeal No.D‑82 of 1994).

Altaf Hussain Surahio for Appellants (in Criminal Jail Appeal No.D‑86 of 1994).

Appellant in person (in Criminal Jail Appeal No.87 of 1994).

Abdul Fatah Mughul for the State (in all Criminal Jail Appeals).

Date of hearing: 18th April, 2001.

2001 P Cr. L J 1786

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Musa K. Leghari, JJ

SHAHNAWAZ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

D‑43 of 1999, heard on 16th May, 2001

Control of Narcotic Substances AM (XXV of 1997)‑‑‑

‑‑‑‑S. 9(c)‑‑‑Criminal Procedure Code (V of 1898), Ss.342 & 537‑‑­Appeciation of evidence‑‑‑Remand of case ‑‑‑Challan against the accused had been submitted under Arts.3/4 of Prohibition (Enforcement of Hadd) Order, 1979 whereas the charge had been framed under Control of Narcotic Substances Act, 1997‑‑‑Accused being pauper was provided a junior Advocate to defend him‑‑‑Statement of the accused under S.342, Cr.P.C. did not bear the signature of the accused which was the violation of S.342(2), Cr.P.C. which is an illegality not curable under S.537, Cr.P.C. and said statement was also not taken into consideration by the Trial Court while delivering the judgment‑‑‑Case was remanded with the consent of the parties to the Trial Court to decide the same afresh after framing fresh charge and holding a fresh trial giving full opportunities of hearing to the parties.

Ahmed Ali Shaikh for Appellant.

Abdul Fatah Mughul for the State.

Date of hearing: 16th May, 2001.

2001 P Cr. L J 1792

[Karachi]

Before S. Ahmed Sarwana and Anwar Zaheer Jamali, JJ

Shaikh M, IQBAL ‑‑‑ Applicant

versus

THLE STATE ‑‑‑ Respondent

Criminal Bails Nos.135 and 171‑Rof 2001, decided on 2nd May, 2001.

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

‑‑‑‑S. 497‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss‑6, 9, 16 & 51‑‑‑Drugs Act (XXXI of 1976), S.2 (g)‑‑‑Bail‑‑‑Phenobarbital powder weighing 20 kilograms recovered from the accused was psychotropic substance and thus, an offence under S.6 of the Control of Narcotic Substances Act, 1997 was prima facie made out against him‑‑‑Keeping in view the quantity of the recovered material the offence was punishable under S.9(c) of the said Act with death which had attracted the bar contained in S.51 of the same Act against the grant of bail‑‑‑Accused was not holding any licence for purchase or retaining the phenobarbital powder in his possession in such a large quantity‑‑‑Phenobarbital powder, no doubt, was also covered by the definition of "drug" under S.2(g) of the Drugs Act, 1976 and the same was used for medical purposes also, but this by itself would not bring the case of accused within the ambit of exception as provided under S.6 of Control of Narcotic Substances Act, 1997‑‑‑Bail was declined to accused in circumstances.

1972 PCr.LJ 165 ref.

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

‑‑‑‑S. 497‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.6 & 9‑‑­Bail‑‑‑No psychotropic substance was recovered from the accused who was arrested from his house on the allegation made by co‑accused during investigation that he had purchased the alleged psychotropic substance from the accused and had also produced the receipt thereof‑‑‑Other prosecution witness in his statement recorded under S.161, Cr.P.C. had not specifically charged the accused with the sale of the said substance to the ro‑accused, but he had only stated about the sale of some chemical to .him‑‑‑Accused was admitted to bail in circumstances.

Gulzaman v. The State 1999 SCMR 1271 and The State through Deputy Director, Anti‑Narcotic Force, Karachi v. Syed Abdul Qayum 2001 SCMR 14 ref.

M.A. Kazi for Applicant.

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

2001 P Cr. L J 1801

[Karachi]

Before Syed Deedar Hussain Shah, J

FAKHAR ZAMAN alias FAKHAROO‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.928 and Miscellaneous Application No.1047 of 1997, decided on 21st August, 1997.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.324/34‑‑‑Bail, grant of‑‑‑Accused was in continuous detention for the last 18 months, but neither any formal charge had been framed nor trial had been concluded without any fault of the accused or any person acting on his behalf‑‑‑In about eight cases the accused had been granted bail by Courts of competent jurisdiction‑‑‑Conduct of the accused as undertrial prisoner had been certified to be satisfactory by the Jail Authorities‑‑‑Accused was granted bail in circumstances.

Mehmood A. Qureshi for Applicant.

Muhammad Saleem Samo, A.A.‑G. for the State.

2001 P Cr. L J 1804

[Karachi]

Before Abdul Ghani Shaikh, J .

MUHAMMAD ARIF‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.50 and Civil Miscellaneous Applications Nos.1371 and 1372 of 1998, decided on 14th May, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 345(2)(4) & (5‑A)‑‑‑Penal Code (XLV of 1860), S. 308‑‑­Compromise‑‑‑Application for‑‑‑Offence against the accused punishable under S.308, P.P.C. could be compounded by the legal heirs of the deceased and if any of the legal heirs was minor then on behalf of the minor the Wali could compound the offence and forego the Diyat amount with the permission of the Court‑‑‑Looking to the blood relation between the parties, application seeking permission to compound offence, was accepted and granted and the accused was acquitted accordingly.

1993 PCr.LJ 166 and 1992 SCMR 2047 ref.

Suleman Habibullah for Appellant.

Muhammad Sarwar Khan,,Addl. A.‑G., Sindh alongwith Arshad Lodhi, Asstt. A.‑G. for the State.

2001 P Cr. L J 1808

[Karachi]

Before Abdul Hameed Dogar, J

SAJJAD HUSSAIN BHATTI‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.83, 59 and 146 of 1993, decided on 9th September, 1998.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 409‑‑‑Criminal Procedure Code (V of 1898), S.342‑‑‑Appreciation of evidence‑‑‑Trial Court while convicting the accused had failed to appreciate the evidence and did not believe the case of prosecution against the acquitted co‑accused, but believed the same piece of evidence against the accused without showing any cogent reason for such distinction ‑‑‑F.I.R. in the case was lodged after a period of about nine months from the alleged date of occurrence‑‑‑Benefit would go to the accused in the absence of any plausible explanation for the delay‑‑‑None of the prosecution witnesses had specifically shown the particular act by which the accused actually misappropriated the disputed amount and no direct or indirect evidence was available against the accused‑‑‑Neither the complainant nor any other witness had particularly specified the time, date or the manner in which the offence was said to have been committed‑‑‑Simply saying that it started from a particular date and ended on a particular date without pinpointing the manner and responsibility in that regard, would not be sufficient for holding anyone responsible for the offence‑‑‑Accused was not the person who had the exclusive entrustment/domain over the cash allegedly embezzled which was the main ingredient for awarding conviction‑‑‑In absence of the exclusive charge, control and possession of the property misappropriated, the accused could not be convicted ‑‑‑Co‑accused who confessed the guilt had clearly admitted in his confessional statement that he was responsible for the misappropriation of the amount‑‑‑Trial Court acquitted said co‑accused without giving any convincing reasons and had totally ignored the version given by co‑accused in his confessional statement while convicting the accused‑‑‑Incriminating piece of evidence having not been put to the accused in their statements under S.342, Cr.P.C. same could not be taken into consideration against the accused as a piece of evidence for the purpose of their conviction‑‑­Prosecution having miserably failed to make out case against the accused, they were acquitted by giving them the benefit of doubt.

Muneer Akbar v. The State 1992 MLD 1428; 1992 PCr.LJ 342;

PLD 1994 (sic) 279; PLD 1971 SC 61; Raees Khan v. The State 1991 PCr.LJ 617; Sikandar v. The State 1990 PCr.LJ 396; Ashraf Mian v. The State 1989 PCr.LJ 1079; PLD 1992 Kar. 91; Bashir Ahmed v. The State 1985 PCr.LJ 864; 1973 PCr.LJ 1015; PLD 1960 SC 382 and Moula Bux and 8 others v. The State 1977 SCMR 292 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S 409‑‑‑Criminal breach of trust by public servant‑‑‑Ingredients of offence‑‑‑Court would have to adhere to ingredients of S.409, P.P.C. strictly for convicting the accused under 5.409, P.P.C.‑‑‑Most important ingredient of the offence was that the accused being held responsible should' have the domain over the property or would have been entrusted with the property about which criminal breach of trust had been committed.

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

‑‑‑‑Ss. 537 & 364(2)‑‑‑Statements of accused were recorded in violation of S.364(2) of Cr.P.C., as it was neither got signed by them nor requisite certificate was appended with the same: as such violation of mandatory provisions of law had been made which amounted to an illegality not curable under S.537, Cr.P.C.

Rana Muhammad Shamim, Ali Akbar and Muhammad Ilyas Khan or Appellant.

Mushair Alam, Standing Counsel for the State.

Date of hearing: 9th September, 1998.

2001 P Cr. L J 1819

[Karachi]

Before S.A. Sarwana and Muhammad Moosa K. Leghari, JJ

RAHIM HAYAT QURESHI‑‑‑Petitioner

versus

FEDERATION OF PAKISTAN‑‑‑Respondent

Constitutional Petition No‑.D‑1363 of 2000 and Miscellaneous Application No.937 of 2001, decided on 24th April, 2001.

(a) Criminal Procedure Code (V of1898)‑‑‑

‑‑‑‑Ss. 497 & 498‑‑‑Bail‑‑-Evidence, assessment of-‑‑Validity‑‑‑Court, at bail stage, has: only to see whether the accused is connected with the commission of the crime ~ or not and for such purpose only tentative assessment of evidence is to be made, and deeper appreciation is not called for.

PLD 1994 SC 65 and PLD 1994 SC 88 ref.

(b) National Accountability Bureau Ordinance (XVIII of 1999)‑‑

‑‑‑‑Ss. 9, 18(g) & 24‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Bail, grant of‑‑‑Accused was charged with allegation of commission of corruption and corrupt practice‑‑‑Charge was framed and the case was fixed for prosecution evidence‑‑‑Contention of the accused was that he was not the beneficiary of the crime required deeper appreciation of evidence and the same was not warranted at bail stage‑‑‑Bail was refused in circumstances.

PLD 1994 SC 65; PLD 1994 SC 88 and Muhammad Sadik and others v. The State 1980 SCMR 203 distinguished.

(c) Criminal trial‑‑‑

‑‑‑‑ Facts and circumstances of every criminal case are not always alike and each case has to be considered on the basis of its particular circumstances.

Karim Bux v. The State 200,0 SCMR 1405 ref.

M. Ilyas Khan for Petitioner. Syed Tariq Ali, Federal Counsel for Respondents.

2001 P Cr. L J 1827

[Karachi]

Before Faiz Muhammad Qureshi, J

MUJAHID and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 120 of 2001, heard on 7th May, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/201/148 & 149‑‑‑Bail, grant of ‑‑‑F.I.R. had been lodged after the delay of three months which delay had not been explained by the prosecution‑‑‑Prosecution witnesses in view of their conduct could not be termed ‑as independent and honest witnesses‑‑­ Other evidence against the accused was the last‑seen evidence which was the weakest type of evidence ‑‑‑Co‑accused on the similar allegation had been granted bail by the Trial Court, while the accused had been refused bail‑‑­Accused were entitled to the concession of bail on the principle of equity and consistency‑‑‑Accused having been able to make out prima facie a good case for bail, they were granted bail.

1979 SCMR 9 and 1983 SCMR 102 ref.

Rajib Ali Tunio for Applicants.

Muhammad Iqbal Memon for the State.

2001 P Cr. L J 1831

[Karachi]

Before Zahid Kurban Alavi, J

MUHAMMAD BAKHSH‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.42 of 2001, decided on 30th March, 2001

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), 5.302‑‑‑Bail, grant of ‑‑‑F.I.R. was registered after two months and twenty‑three days and no motive was attributed to the accused for killing the deceased‑‑‑Crime was an unwitnessed one and even if chemical report was to be believed, anybody could have poisoned the deceased‑‑‑Complainant had not seen the offence being committed‑‑‑Samples taken from the body of the deceased were received in the chemical laboratory after five days from their despatch which had created a serious doubt about the authenticity of the certificate received from the laboratory‑‑‑If it was accepted that the deceased was poisoned, even then the poisoning had to be proved‑‑‑Bail was granted to the accused in circumstances.

Karim Haider and others v. The State 1986 SCMR 938; Muhammad v. The State 1986 PCr.LJ 1103; Muhammad Hussain v. Afzal Ahmed and another 1995 SCMR 932; Jehangir and others‑v. The State 1996 PCr.LJ 283 and Ghulam Mustafa alias Sathi and others v. The State 2000 PCr.LJ 2053 ref.

Muhammad Ayaz Soomro for Applicant.

Ali Nawaz Ghanghro for the Complainant.

Abdul Fatah Mughal for the State.

2001 P Cr. L J 1834

[Karachi]

Before Muhammad Roshan Essani, J

MANSOOR AHMED ‑‑‑Petitioner

versus

S.H.O. POLICE STATION "A" SECTION, SUKKUR and others‑‑‑Respondents

Constitutional Petition No.S‑202 and Civil Miscellaneous Application No.635 of 2001, decided on 29th March, 2001.

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

‑‑‑‑S. 154‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Registration of F.I.R.‑‑‑S.H.O. had filed his statement in the Court to the effect that the petitioners had not appeared at the police station for registration of F.I.R. and if he would come his F.I.R. would be registered‑‑‑Petitioner being satisfied with the said statement, did not press his petition and desired the same to be disposed of as not pressed.

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

‑‑‑‑S. 154‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Registration of F.I.R.‑‑‑Object of S.154', Cr.P.C. was to bring the machinery of Investigating Agency into motion‑‑‑Allegations and counter‑allegations could be urged, by the parties before the Investigating Officer who could arrive at independent conclusion and act according to law and the matter ultimately would go for adjudication before a Court of law where the parties would be given full opportunity of hearing.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Petitioner not pressing his petition‑‑­Effect‑‑‑Petitioner had the sole prerogative to press his petition or not for the relief sought by him and no party to the proceedings could coerce him for doing or not doing so‑‑‑Constitutional petition was consequently disposed of as not pressed.

Saifullah Khan and another v. Settlement Commissioner, Punjab, Lahore and others 1982 SCMR 853; Qaiser Mahmood v. Muhammad Shaft and others PLD 1998 Lah. 72; Jamshed Ahmed v. Muhammad Akram Khan and another 1975 SCMR 149; Wazir Ahmed v. S.H.O., Police Station Mahboob Kalhoro and others 1990 PCr.LJ 2006; Altaf Hussain v. Government of Sindh and others PLD 1997 Kar. 600; Allan Khan v. S.H.O., Police Station Mouladad 1999 PCr.LJ 681; Gul Muhammad Shah alias Riaz Shah v. S.H.O., Police Station "B" Section, Sukkur and another C.P. No.S‑780 of 2000 (unreported) and Saeed Ahmed and others v. Nasir Ahmed PLD 2000 Lah. 208 ref.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Scope‑‑‑Disputed question of fact‑‑‑Disputed question of fact could not be resolved by Court in exercise of its Constitutional jurisdiction.

Mughal Mumtaz Ali Khan for Petitioner.

Saifuddin Shah for the Proposed Accused.

Ghulam Dastagir Shahani, Addl. A.‑G.

2001 P Cr. L J 1840

[Karachi]

Before Zahid Kurban Alavi, J

SHAH NAWAZ and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.S‑3 of 2001, heard on 16th April, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 & 324‑‑‑Appreciation of evidence‑‑‑Benefit of doubt‑‑‑When the evidence of the two eye‑witnesses could not be relied upon on account of being basically contradictory to each other then the Trial Court should also have ignored the evidence of the complainant who had relied upon the evidence of the said eye‑witnesses‑‑‑Complainant being an interested person having his own axe to grind should always be looked at with certain bias‑‑­Facts narrated in the F.I.R. and the evidence brought forward by the prosecution might support and assist the complainant's version ultimately resulting in the conviction of the accused, but it still depended on the appreciation of evidence by the Trial Court‑‑‑Observations having been made strictly discarding the evidence of the two main eye‑witnesses, total reliance on the statement of the complainant should not have ended in the conviction of the accused, because case against accused had to be proved beyond a reasonable doubt to secure their conviction‑‑‑Sole objective of the complainant being to get the accused punished, mere reliance on his evidence was not sufficient‑‑‑Concluding paragraph of the Trial Court's judgment was good enough to give the accused the benefit of doubt‑‑‑If the evidence was not relied upon and mitigating circumstances were available, then the accused had to be acquitted on benefit of doubt‑‑‑Accused were acquitted in circumstances.

(b) Appeal‑‑‑

‑‑‑‑General‑‑‑Appellate Court has to look at the observations in the judgment and then read the evidence‑‑‑Non‑appreciation or misreading of evidence could not result in the judgment being set aside.

(c) Evidence‑

‑‑‑‑ Individual testimony‑‑‑Value of‑‑‑Reliance on individual testimony and that too in a situation, where there was no dispute between the parties, could not be placed.

Muhammad Ayaz Soomro for Appellant.

Muhammad Ismail Bhutto for the State.

Date of hearing: 16th April, 200.1.

2001 P Cr. L J 1852

[Karachi]

Before Faiz Muhammad Qureshi, J

Haji SIDDIK‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.84 of 2000, decided on 19th March, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 & 304‑‑‑Criminal Procedure Code (V of 1898), S.342‑‑­Appreciation of evidence‑‑‑Examination of the accused‑‑Principle of natural justice, violation of‑‑‑Effect‑‑‑Adverse evidence against the accused existed in the shape of recovery, but no such question had been put to the accused under S.342, Cr.P.C. by the Trial Court which amounted to illegality as the accused had been condemned unheard which was in violation of the principles of "audi alteram partem"‑‑‑By not delivering judgment in accordance with the provisions relating to Qisas and Diyat Trial Court had violated provisions of S.304, P.P.C.‑‑‑Conviction and sentence awarded to the accused by the Trial Court were set aside and case was remanded to the Trial Court to re‑start from the stage of recording of statements of the accused under S.342, Cr.P.C. and to rewrite judgment in accordance with law.

1969 SCMR 777,; 1995 SCMR 1374; 1999 PCr.LJ 1006; 2000 MLD 425 and 1996 SCMR 869 ref. IN I

Manzoor Ahmed Z. Siddiqui for Appellant.

Muhammad Azeem Panhwar for A.‑G. for the State.

Muhammad Ishaque Khoso for the Complainant.

Date of hearing: 19th March, 2001.

2001 P Cr. L J 1859

[Karachi]

Before Muhammad Moosa K. Leghari, J

GHULAM NABI and another‑‑‑Appellants.

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.S‑20 of 1998 and Criminal Jail Appeal No.50 of 1999, heard on 14th May, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑ u testimony had glaring contradictions‑‑‑Knife, the alleged crime weapon, was neither recovered nor produced‑‑‑Belated recovery of hatchets after five weeks could not be relied upon‑‑‑Hatchets recovered in the case were neither sealed nor sent to Chemical Examiner‑‑‑Joint charge was framed against all the four accused persons which was neither precise nor it contained the particulars and details of the accusation‑‑‑Two accused persons had been let off on the same set of evidence, which fact made the case of prosecution doubtful ‑‑‑Mashir of inquest, Wardat, recovery of blood‑stained earth and clothes etc., did not support the prosecution case‑‑‑Mashirnama of arrest of accused was produced through Investigating Officer and none of the Mashirs of arrest and recovery of hatchets were examined‑‑‑Enmity existed between accused and the complainant party‑‑‑Prosecution case being highly doubtful, failed to bring home the guilt of accused, who was acquitted in circumstances.

(b) Evidence‑‑­

‑‑‑‑ Statements of eye‑witnesses‑‑‑Contradictions‑‑‑Effect‑‑‑Glaring contradictions in the deposition of eye‑witnesses would render ocular testimony doubtful and unbelievable.

Abdul Rasool Abbasi for Appellants.

Muhammad Ismail Bhutto for the State.

Date of hearing: 14th May, 2001.

2001 P Cr. L J 1865

[Karachi]

Before Zahid Kurban Alavi and S.A. Rabbani, JJ

HAKIM ALI ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.67 of 2000, heard on 29th March, 2001.

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

‑‑‑‑S. 9(b)‑‑‑Appreciation of evidence‑‑‑Prosecution in proof of its case had produced two witnesses in addition to the complainant/Investigating Officer and they all were police officials‑‑‑No independent witness was examined in the case despite occurrence was alleged, to have taken place at a public place during the day time‑‑‑Material contradictions were found in the evidence of prosecution witnesses‑‑‑Prosecution case was doubtful and the accused was entitled to the benefit of doubt‑‑‑Conviction and sentence awarded to the accused by the Trial Court, was set aside and the accused was acquitted, in circumstances.

Tarique Pervez v. The State 1995 SCMR 1345 ref.

Nisar Ahmed G. Abro for Appellant.

Gul Hassan Solangi for the State.

Date of hearing: 29th March, 2001.

2001 P Cr. L J 1875

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

SHAMAN SHAIKH ‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.47 of 2001, decided on 30th April, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/16‑‑‑Bail‑‑‑No eye‑witness was available in respect of the allegations levelled in the F.I.R.‑‑‑Genuineness of the Nikahnama of lady accused and her co‑accused was yet to be determined by the Trial Court‑‑­Lady accused had already been granted bail by the Trial Court‑‑‑No direct evidence of Zina against the accused was available who had been involved on the basis of the statement of co‑accused‑‑‑Case of accused, in circumstances, needed further inquiry as envisaged by S.497(2), Cr.P.C.‑‑‑Accused was admitted to bail accordingly.

Mst. Robina Shamim v. The State 1986 PCr.LJ 1588, Muhammad Zahid and another v. The State 1993 PCr.LJ 963 and Mst. Yasmeen and another v. The State 1993 PCr.LJ 2371 ref.

Shaikh Amanullah for Applicant.

Mumtaz Ali Siddiqui for the State.

2001 P Cr. L J 1885

[Karachi]

Before Wahid Bux Brohi, J

WAHID BUX‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.236‑of 2001, decided on 701 June, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(1), third proviso‑‑‑Penal Code (XLV of 186p), S.302‑‑‑Bail on ground of statutory delay‑‑‑Accused was in continuous detention for the last more than two years and four months and his trial had not so far concluded for which accused was not at fault‑‑‑No contribution towards the delay in the trial was attributed to the accused‑‑‑Accused Was not involved in any other case and all reports regarding him were favourable‑‑‑Bail was allowed to‑accused in circumstances.

Abdul Rasool Abbasi for Applicant.

Anwar Ansari for the State.

2001 P Cr. L J 1892

[Karachi]

Before Faiz Muhammad Qureshi. J

IMAMDINE‑‑‑Applicant

versus

PATHAN and 3 others‑‑‑Respondents

Criminal Miscellaneous Application No.63 of 2001, decided on. 31st May, 2001.

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

‑‑‑S. 497(5)‑‑‑Penal Code (XLV of '1860), Ss.302/449/460‑‑‑Cancellation of bail‑‑‑No. tangible evidence was available with the police against the accused who had been arrested on mere suspicion‑‑‑Identification parade was the only evidence against the accused which was the weakest type of evidence and even otherwise no sanctity could be attached to it as the same was held in piecemeal, no marks of identification had been noted by the Magistrate of the prosecution witnesses who had identified the accused during identification parade and no specific role had been assigned to the accused in the occurrence; by such witnesses‑‑‑No strong and exceptional grounds were available for the cancellation of bail granted to accused by the Trial Court‑‑­Petition was dismissed accordingly.

1984 SCMR 1230; 1984 SOVIR 2161; PLD 1994 SC 65; 1991 SCMR 1849; 1995 SCMR 128; Sadiq Shah v. Qurbaan Shah and others 1985 SCMR 979 and Tariq Bashir v. The State PLD 1995 SC 34 ref.

(b) Qanun‑e‑Shahadat (X of 1984)‑‑‑

‑‑‑‑Art. 22‑‑‑Identification parade‑‑‑Evidentiary value‑‑‑Identification parade looses its sanctity, when no role has been attributed to the accused during commission of offence.

1995 SCMR 127 rel.

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

‑‑‑‑S. 162‑‑‑Police Case Diaries‑‑‑Advocate could not go through the Police Case Diaries.

Ali Nawaz Ghanghro for Applicant.

Muhammad Ayaz Saoomro for Respondents Nos. 1, 2 and 3.

Gul Hassan Solangi for the State.

2001 P Cr. L J 1903

[Karachi]

Before Wahid Bux Brohi, J

NOOR HASSAN and others‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail No.711 of 2000, decided on 17th November, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/201/342/506(2)/353/34‑‑­Bail‑‑‑Explanation furnished by the complainant for the delay in lodging the F.I.R. and supported by other witnesses as well could not be discarded straightaway at bail stage‑‑‑Evidence of motive for commission of offence had not been questioned‑‑‑Contrary plea taken by accused based on fact could be very well‑determined at the trial‑‑‑Blood was present at the place of incident from where crime‑empties had also been recovered‑‑‑Sufficient oral evidence was available to prima facie show that after commission of murder accused had caused disappearance of the dead body‑‑‑Accused were well ­known to the complainant party and they had allegedly issued threats to them at the time of occurrence‑‑‑Bail was declined to accused in circumstances.

Ali Nawaz v. The State 1988 PCr.LJ 1736; Shabbir Hussain Shah v. The State 1990 MLD 1055; Noor Muhammad v. The State 1993 PCr.LJ 1517; Syed Ahmed Ali Rizvi v. The State PLD 1995 SC 500; Syed Amanullah Shah v. The State PLD 1996 SC 241; Khadim Hussain v, The State 1989 PCr.LJ 2432 and Ghulam Asghar v. The State 1985 SCMR 1946 ref.

Farid Abdul Dayo for Applicants.

Muhammad Ismail Memon, State Counsel.

Date of hearing: 17th November, 2000.

2001 P Cr. L J 1908

[Karachi]

Before Muhammad Afzal Soomro, J

MOHIB SYED‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.156 of‑2001, decided on 28th March, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(1), third proviso‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail on the ground of statutory delay‑‑‑Defence had sought adjournments almost on ten occasions and the delay calculated appeared to be 154 days‑‑‑Defence, thus, was responsible for causing delay in finalisation of the trial and the accused was not entitled to concession of bail on the ground of statutory delay‑‑‑Bail was refused to accused in circumstances.

Jan Muhammad Brohi and others v. The State 1996 PCr.LJ 863; Abdul Hameed v. The State 1999 MLD 1333; Sher Ali alias Sheri v. The State 1998 SCMR 190; Jadeed Gul v. The State 1998 SCMR 1124; Ashok v. The State 1997 SCMR 436; Muhammad Afzal and another v. The State NLR 1982 SCJ 199 and Muhammad Aslam v. The State 1999 SCMR 2147 ref.

Akhtar Abbas v. The State PLD 1982 SC 424 and Muhammad Younus v. The State 1995 SCMR 1087 rel.

Ajab Khan Khattak for Applicant. Sharafat Ali Khan for the State.

2001 P Cr. L J 1945

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

ABDUL SATTAR and 3 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.44 of 1991, decided on 8th May, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 307, 380, 382, 457, 148 & 149‑‑‑West Pakistan Arms Ordinance (XX of 1965). S.13‑D‑‑‑Criminal Procedure Code (V of 1898), Ss.342, 364 & 537‑‑‑Appreciation of evidence‑‑‑Recording of statement of the accused‑‑­Omission to give certificate by the Court‑‑‑Effect‑‑‑Trial Court while recording the statements of the accused under 5.342, Cr.P.C. had omitted to give certificate in his own handwriting to the effect that the examination of the accused was taken in his presence and hearing and that the record contained a full and true account of the statement made by the accused, as provided under mandatory provisions of S.364, Cr.P.C.‑‑‑Non‑compliance of said mandatory provisions of law was not mere irregularity, but was an illegality which was not curable under, S.537, Cr.P.C. and it had vitiated the trial‑‑‑Case was remanded back to the Trial Court for further proceedings from the stage of statement of the accused under S.342, Cr.P.C.

Sikandar v. The State 1990 PCr. LJ 396; Munshi v. The State 1985 PCr.LJ 1677; Muhammad Inayat and others v. The State 1985 PCr.LJ 469; Sabia Raza Nadeem v. The State 1986 PCr.LJ 1948; Allahditta v. The State 1986 PCr.LJ 1987; Ashraf Mian v. The State 1989 PCr.LJ' 1079; Jehandad v. The State PLD 1994 Pesh. 239; Atta Muhammad v. Settlement Commissioner PLD 1971 SC 61; Mayor of London v. R (1848) 13 QB 30; Liverpool Borrough Bank v. Turner (1861) 30 LJCH 379; Howard v. Botlingdon (1877) 2 PD 203 and Arshad Mehmood v. The State 1989 PCr. LJ 574 ref.

Sardar Khan Lashari for Appellants.

Mumtaz Ali Siddiqui for the State.

Ahmed Bux Ansari (absent) for the Complainant.

Date of hearing: 8th May, 2001.

2001 P Cr. L J 1959

[Karachi]

Before S. Ali Aslant Jafferi, J

ALLAH RAKHIO and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.19 of 1989, decided on 22nd June, 2001.

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

‑‑‑‑Ss. 342 & 364‑‑‑Penal Code (XLV of 1860), S.161/34‑‑‑Preventionof Corruption Act (II of 1947), S.5(2)‑‑‑Appreciation of evidence‑‑‑Recording statement of the accused‑‑‑Omission to give certificate by the Court‑‑­Effect‑‑‑Trial Court while recording statement of the accused under S.342; Cr.P.C. neither appended certificate as required under mandatory provisions of S.364(2), Cr.P.C. nor obtained signature of the accused on their statements‑‑‑Non‑compliance of the mandatory requirements of S.364(:), Cr.P.C. was .not mere irregularity, but was an illegality‑‑‑Conviction recorded by the Trial Court was set aside and the case was sent back to he Trial Court to proceed afresh from the stage of recording of the statement of the accused under S.342, Cr.P.C. in accordance with S.364(2), Cr.P.C. and to decide case afresh in accordance with law.

Liaquat Ali v. The State 1990 PCr.LJ 396; Munshi v. The Sute 1985 PCr.LJ 1677 and Ashraf Mian v, The State 1989 PCr.LJ 1079 rel.

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

------S.364(2)‑‑‑Non‑compliance with provision of S.364(2), Cr.P.C:‑­Effect‑‑‑Non‑compliance of mandatory requirements of S.364(2), Cr.P.C is not mere irregularity, but an illegality.

Mumtaz Ali Siddiqui for Appellants.

Sher Muhammad Shar, Asstt. A.‑G. for the State.

2001 P Cr. L J 1963

[Karachi]

Before Faiz Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

Mst. WAZIRAN DETHO ‑‑‑ Appellant

versus

THE STATE‑‑‑Respondent

Criminal Jail Appeal No.D‑6 of 2001, heard on 30th May, 2001.

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

‑‑‑‑S. 9(c)‑‑‑Appreciation of evidence‑‑‑Huge quantity of 11‑1/2 Kgs. of opium and 12‑1/2.Kgs. of Charas had been recovered from the possession of the two accused ladies which could not be foisted upon them‑‑‑Prosecution witnesses were not shown to have any animosity against the accused for their false implication in the case‑‑‑Provisions of S.103, Cr.P.C. were not applicable, to the search conducted by the police‑‑‑Despatch of only 500 grams of narcotic out of the whole quantity to the Chemical Expert could not be shown to be illegal‑‑‑Non‑production of Entry in the Roznamcha in the Court whereby the police party left the police station for conducting raid was only a technicality which had no bearing against the prosecution in a case of heinous offence of narcotics‑‑‑Convictions and sentences of accused were upheld in circumstances.

Altaf Hussain Surahio for Appellant.

Gul Hassan Solangi for the State.

Date of hearing: 30th May, 2001.

2001 P Cr. L J 1976

[Karachi]

Before S.A. Rabbani, J

ABDULLAH TANG‑‑‑Applicant

versus

SALEEM SABA and another‑‑‑Respondents

Criminal Miscellaneous Application No.166 of 2000, decided on 1st June, 2001.

(a) Sindh Rented Premises Ordinance (RVII of 1979)‑‑‑

‑‑‑‑S. 19‑‑‑Rent Controller whether a Court‑‑‑Rent Controller under the Sindh Rented Premises Ordinance, 1979, conducts judicial proceedings, receives evidence on oath and performs no executive functions and is, therefore, a Court within the known relevant meanings of the word.

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

‑‑‑‑S. 476‑‑‑‑Sindh Rented Premises Ordinance (XVII of 1979), Preamble‑‑‑West Pakistan Family Courts Act (XXXV of 1964). Preamble-----Disputes within the jurisdiction of Rent Controller or a Family Court are civil disputes about private rights and these Courts, therefore, are Civil Courts within the meaning of S.476, Cr.P.C.

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

‑‑‑‑Ss. 476, 439‑A & 561‑A‑‑‑Sindh Rented Premises Ordinance (XVII of 1979), S.19‑‑‑Quashing of order‑‑‑Applicant (tenant) in execution proceedings against him filed an application for taking action against the respondent (landlord) under S.476, Cr.P.C. for alleged perjury committed before the Rent Controller, which was dismissed‑‑‑Revision petition filed by the applicant against the said order was dismissed by the Sessions Court by means of the impugned order on the ground that Rent Controller was not a Civil Court before whom 5.476, Cr.P.C. read with 5.193, P.P.C. was not applicable‑‑‑Held. Rent Controller under Sindh Rented Premises Ordinance. 1979, was a Court included in the category of Civil Courts given in S.476. Cr.P.C. and he could, therefore, take cognizance of an offence under S.476. Cr.P.C.‑‑‑Revisional powers of Session Court under SA39‑A. Cr.P.C. were in respect of proceedings before a Magistrate only and while execution powers under S.476. Cr.P.C. a Court could not become a Magistrate‑‑­Sessions Court, therefore, could not exercise its revisional powers and the impugned order was without jurisdiction and the same was consequently set aside‑‑‑Matter was remanded to the Rent Controller for reconsideration of the application filed under 5.476. Cr.P.C.

Abdul Haleem v. The State 1994 SCMR 1103: Abdul Razzak v. Muhammad Raghib and another 1988 MLD 2801 and Khadim Mohiuddin and another v. Ch. Rehmat Ali Nagra and another PLD 1965 SC 459 ref.

(d) Words and phrases‑‑‑

‑‑‑‑‑‑ Civil Court"‑‑‑Meanings‑‑‑"Civil Court" means a Court established for the adjudication of controversies between individual parties, or the ascertainment, enforcement and redress of private rights.

Black's Law Disctionary rel.

Abrar Hassan for Applicant.

Yousuf Moulvi for Respondent No.1

Arshad Lodhi. A.A.‑G. for the State.

Date of hearing: 31st May, 2001.

2001 P Cr. L J 1983

[Karachi]

Before Wahid Bux Brohi, J

Mufti MUHAMMAD NAEEM KHAN‑‑‑Applicant

versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No.161 and Miscellaneous Application No.944 of 2001, decided on 24th May, 2001.

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

‑‑‑‑Ss. 107/117, 112 & 561‑A‑‑‑Quashing of proceedings‑‑‑Order passed by Magistrate under S.112, Cr.P.C. in the proceedings initiated under Ss.107/117, Cr.P.C. against the applicant suffered from utter absurdity arid absolute inconsistency‑‑‑Manner in which the said order was passed showed that the Magistrate had never applied his mind to the facts of the case and as such it did not possess legal sanctity‑‑‑Document showing the settlement of dispute between the parties was available on record, but the Magistrate did not explain as to have in the presence of said document the breach of peace continued‑‑‑Proceedings against the applicant in such circumstances suffered from grave inconsistencies and irregularities and amounted to abuse of the process of Court‑‑‑Proceedings pending in the Court of Magistrate against the applicant were quashed accordingly.

Mehar Khan v. State 1975 PCr.LJ 257; Ghulam Muhammad v State 1982 PCr.LJ 777 and Ghulam Muhammad v. State 1997 PCr.LJ 559 ref.

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

‑‑‑‑S. 498‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.87‑‑‑General Clauses Act (X of 1897), S.24‑A‑‑‑Certified copies of proceedings‑‑‑Getting of certified copies of the proceedings was a valuable right of the party within the meanings of S.548, Cr.P.C., Art.87 of Qanun‑e‑Shahadat, 1984 and S.24‑A of the General Clauses Act, 1897, which could not be denied.

Gul Zaman Khan for Applicant.

Muhammad Ismail Memon, State Counsel.

Date of hearing: 24th May, 2001.

2001 P Cr. L J 2001

[Karachi]

Before S.A. Rabbani, J

Sardar MUHAMMAD ISMAIL KHAN‑‑‑Appellant

versus

THE STATE and another‑‑‑Respondents

Criminal Acquittal Appeal No.2 of 1,997, decided on 8th June, 2001

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 417(2‑A), 169, 249‑A & 439‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Appeal against acquittal converted into revision petition‑‑‑Appellant neither in his capacity as an informant nor in his capacity as an Investigating Officer was an aggrieved person as envisaged by S.417(2‑A), Cr.P.C. and he, therefore, was not legally authorized to file the appeal against acquittal of accused by Trial Court which was incompetent‑‑­Question of validity of the impugned order having been brought to the knowledge of the High Court, said appeal was converted into revision under 5.439, .Cr.P.C.‑‑‑Report made by police recommending release of accused under S,169, Cr.P.C. having been once rejected by the Magistrate, could not have been made basis of his acquittal under S.249‑A, Cr.P.C.‑‑‑Magistrate was also not legally authorized to decide the case on the basis of statements of witnesses recorded under S.161, Cr.P.C.‑‑‑Impugned order of acquittal being absolutely baseless was set aside and the case was remanded to Trial Court for a decision on merits on the basis of evidence to be recorded by the Court‑‑‑Revision petition was disposed of accordingly.

Shaukat Hussain Zubedi for Appellant.

Arshad Lodhi, A.A.‑G. for the State.

Kh. Sharful Islam for Respondent No.2.

Date of hearing: 3rd May, 2001.

2001 P Cr. L J 2016

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

AYAZ ALI and others‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.293 of 2001, decided on 7th June, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/460/34‑‑‑Constitution of Pakistan (1973), Arts.9 & 24‑‑‑Bail‑‑‑Provisions contained in S.460, P.P.C. mere in consonance with "Maqasid‑ul‑Shariah", out of which two were attracted in the case in which the fundamental right of the sanctity of the louse, protection of the property and protection of life had been violated‑‑­Every accused jointly concerned with committing lurking house‑trespass by light or house‑breaking by night was liable by way of vicarious liability for punishment with imprisonment for life or even for committing murder, although each and every person committing lurking house‑trespass by night )r house‑breaking by night had not participated in commission of murder or curt committed by co‑accused‑‑‑Bail was declined to accused in circumstances.

Rajib v. The State 2001 PCr.LJ 701 ref.

Sahib Khan Kanasiro for Applicants.

Sher Muhammad Shar, A.A.‑G. for the State.

2001 P Cr. L J 2027

[Karachi]

Before Ghulam Nabi Soomro and Atta‑ur‑Rehman, JJ

ABDUL GHANI and others‑‑‑Appellants

versus

THE STATE and others‑‑‑Respondents

Criminal Appeals Nos.201 of 1999 and 140 of 2000, decided on 23rd May, 2001.

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

‑‑‑‑S. 9(c)‑‑‑Appreciation of evidence‑‑‑Sentence‑‑‑Sentence of imprisonment for life or death in cases involving narcotics with quantity of less than 10 Kgs. would be too harsh and highly inappropriate and might not appear to be in consonance with the provisions of S.9(c) of the Control of Narcotic Substances Act, 1997‑‑‑Quantity of 3 Kgs. of heroin and 4 Kgs. of opium involved in the cases was much less than 10 Kgs.‑‑‑Rigid mathematical calculation keeping the terms of imprisonment vis‑a‑vis the quantity of narcotics though might not be warranted, yet reasonable proportion of sentence could be well within the spirit of the said provisions of the Act‑‑‑ Sentence of imprisonment for life awarded to each accused was, therefore, reduced to 10 years' R.I. with substantial reduction in fine.

Amanullah alias Aman v. The State 2000 PCr.LJ 1536; John Chibuzo v. The State 2000 MLD 235; Ali Muhammad Panhwar v. The State 2001 PCr.LJ 338; Maqsood Ahmed v. The State 2000 MLD 725; Ali Muhammad and others v. The State 2000 PCr.LJ 755; Nasrullah v. The State 1998 PCr.LJ 2086 and Munawar Hussain alias Bobi and 2 others v. The State 1993 SCMR 785 ref.

M. R. Sayed and Rana Shamim Ahmed for Appellants.

Habib Ahmed, A.A.‑G. and Shoib Ashraf, Special Prosecutor for the State.

Date of hearing: 24th April, 2001.

2001 P Cr. L J 2035

[Karachi]

Before Ghulam Rabbani and Atta‑ur‑Rehman, JJ

GUL MUHAMMAD ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.85 and 93 of 1996.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 365‑A/34 & 109/34‑‑‑Appreciation of evidence‑‑‑Accused persons initially were not named in the F.I.R.‑‑‑One accused had been acquitted almost on the same evidence and his acquittal was not challenged‑‑‑One of the abductees had not identified the accused in Court and denied his statement made under S.164, Cr.P.C.‑‑‑Proceedings conducted by the Magistrate under S.164, Cr.P.C. were defective and unreliable and the same was the position of the identification parade proceedings‑‑‑Despite alleged encounter between the accused and the police no ammunition or crime empties were recovered from the place of incident, nor any arms and ammunition surrendered by the accused before the police was produced in Court‑‑‑Armoured vehicle allegedly hit by the bullets was not even produced in the Court‑‑‑Chains with which the abductee was fastened were also not shown to the Court‑‑‑Full precautions before recording confessional' statements of accused were not taken‑‑‑Prosecution evidence was dishonest and discrepant‑‑‑No evidence was available on record to show that the accused had ever demanded any ransom amount or that it was paid to them‑‑‑Defence evidence was unanimous on the point that the accused were already in police custody and they were not released as they could not pay the money demanded by them‑‑‑Accused were acquitted in circumstances.

Qurban Ali H. Chohan for Appellants.

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

2001 P Cr. L J 2051

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

ABDUL WAHID‑‑‑Appellant

versus

AYAZ AHMED and 2 others‑‑‑Respondents

Criminal Miscellaneous No.65 of 2001, decided on 2nd May, 2001

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

‑‑‑‑S. 497(1), third proviso‑‑‑Penal Code (XLV of 1860), Ss.364/365‑A/34‑­Bail on ground of statutory delay‑‑‑Principles‑‑‑Court for the purpose of grant of bail on the ground of statutory delay cannot add or subtract the period.

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

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.364/365‑A/34‑‑‑Cancellation of bail‑‑‑Accused had remained in custody for a total period of 21 months and 4 days‑‑‑Sessions Court had not only granted bail to the accused before the expiry of the statutory period of two years, but for the grant of bail it had made mathematical calculation which was not warranted by law‑‑‑Sessions Court, thus, had erred in law by granting bail to accused which was recalled accordingly.

Ghulam Sarwar Korai for Applicant.

Shamsuddin Kobhar for Respondents Nos.1 and 2.

Sher Muhammad Shar, Asstt. A.‑G. for the State.

Muhammad Sachal, D.D.A.. Ghotki (present).

2001 P Cr. L J 2062

[Karachi]

Before Muhammad Moosa K. Leghari, J

JAWED ALI MEMON ‑‑‑ Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.3 of 1999, decided on 25th May, 2001.

Prevention of Corruption Act (II of 1947)‑‑‑

‑‑‑‑S. 5(2)‑‑‑Penal Code (XLV of 1860), S.161‑‑‑Appreciation of evidence‑‑­Conversation having allegedly taken, place between the complainant and the accused with regard to the demand of bribe money was not heard by the Magistrate who was a member of the raiding party‑‑‑Magistrate or the Police Officer had also not seen the tainted money being passed to the accused‑‑‑Police Officer and the Magistrate, thus, had not witnessed the transaction and acceptance of money by the accused in such circumstances, could not be inferred as illegal gratification‑‑‑Despite many persons being present at the scene of occurrence, nobody from the public was associated with the trap proceedings‑‑‑Prosecution had failed to prove its case against the accused beyond reasonable doubt‑‑‑Accused was acquitted accordingly.

Muhammad Bachal v. The State 1969 PCr.LJ 1011 and Criminal Appeal No.S‑25 of 1998 (unreported) ref.

Muhammad Ashraf v. The State 1996 SCMR 181 rel.

Ali Nawaz Ghanghro for Appellant.

Mushtaque Ahmed Korejo for the State.

Date of hearing. 15th May, 2001.

2001 P Cr. L J 2066

[Karachi]

Before Faiz Muhammad Qureshi, J

GHULAM SHABIR and 2 others‑‑‑Applicants

versus

NAWAB SHAH and another‑‑‑Respondents

Criminal Transfer Application No.S‑26 of 2001, decided on 28th May, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 526‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Transfer of case‑‑‑One of the accused persons only had filed an affidavit regarding an attack of the complainant party on them while on their way to Court showing an alleged apprehension of being killed by them‑‑‑No date and time of the alleged attack was given in the aforesaid affidavit‑‑‑Non‑filing of such affidavits by the other two accused (applicants) had weakened the case for transfer on ground of such apprehension‑‑‑Even no notice of the transfer application had been given by the accused to the Public Prosecutor as required by S.526(6), Cr.P.C.‑‑‑Application for transfer of the case on the face of it was frivolous, vexatious and misconceived and the same was dismissed accordingly with the direction to the accused to pay Rs.500 as compensation to the respondent.

Ghulam Mustafa alias Khawand Bux v. Pinyal and others 2000 PCr.LJ 143 ref.

Abdul Hakeem Khan Bijarani for Applicants.

Gul Hassan Solangi on behalf of Addl. A.‑G. for the State.

2001 P Cr. L J 1

[Lahore]

Before Muhammad Asif Jan, J

NOOR ELAHI and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2020/B of 1999, decided on 24th May, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.324/34---Bail, grant of---No overt act whatsoever was attributed to the accused who were empty-handed---Only role assigned to accused was "proverbial Lalkara"---Reasonable grounds to believe that accused were guilty of offence punishable with death, imprisonment for life or imprisonment for ten years, were not existing--­Case against accused requiring further inquiry they were entitled to grant of bail.

Abdul Aziz v. Bashir Ahmad PLD 1966 SC 658; Wazir Muhammad v. The State 1978 SCMR 448 and Amanat Ali v. The State 1993 SCMR 1992 ref.

Shaharyar Sheikh for Petitioners.

Miss Najma Parveen for the State.

2001 P Cr. L J 5

[Lahore]

Before Iftikhar Hussain Chaudhry, J

ZAHID NASEER and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 2 of 1999 in Criminal Appeal No. 338 of 1998, decided on 17th August, 1999.

Criminal Procedure Code (V of 1898)‑‑-

‑‑‑‑S. 426(1‑A)‑‑‑Penal Code‑ (XLV of 1860), S.324/334‑‑‑Suspension of sentence‑‑‑Period of imprisonment of petitioners after their conviction had exceeded‑ one year, but appeal filed by them had not been taken up for hearing‑‑‑Heavy pendency of criminal appeals in Court would stand in the way of early disposal of the appeal filed by petitioners‑‑‑Petitioners, in circumstances, were entitled to suspension of sentence‑‑‑Petitioners were directed to be released from custody, subject‑to furnishing bail bonds, during pendency of their appeal.

Shehryar Sheikh for Petitioners.

Ch. Muhammad Hussain, Advocate.

Maqsood Ahmad for the State.

2001 P Cr. L J 8

[Lahore]

Before Zafar Pasha Chaudhry, J

GHULAM SHABBIR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 2774/B of 1999, decided on 7th June, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑-Penal Code (XLV of 1860), Ss. 354 & 354‑A‑‑‑Bail, grant of‑‑­During course of investigation S.354‑A, P.P.C. had not been found applicable and accused was required only under S.354, P.P.C.‑‑­Section 354‑A, P.P.C. which was covered by prohibitory clause of S.497, Cr.P.C. having been deleted, accused could only be charged for offence under S.354; P.P.C. which was not covered by prohibitory clause of S.497, Cr.P.C.‑‑‑Bail was allowed to accused.

Shahryar Sheikh for Petitioner.

Aslam Malik for the State.

2001 P Cr. L J 9

[Lahore]

Before Naeem Ullah Khan Sherwani and Bashir A. Mujahid, JJ

JAWAD AHMAD and 3 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 265 of 1996, decided on 29th March, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/364/380/411/452/148/149‑‑‑Appreciation of evidence‑‑‑F.I.R.­ which contained full particulars of accused and weapons which they were carrying during course of occurrence, was prompt and straightforward‑‑­Names of eye‑witnesses also figured in the F. I. R. ‑‑‑Accused were known persons and what they did at the spot was personally observed by all the eye­witnesses‑‑‑Mere fact that post‑mortem examination was conducted with some delay, could not be held as a sufficient ground to believe that either eye‑witnesses were riot available at the spot or F.I.R. had not been registered ‑‑‑F.I.R. number was available in inquest report which had shown that F.I.R. was recorded first and inquest report was drawn later from which it could be inferred that F.I.R. was genuine and not a fabricated piece of evidence to which maximum legal sanctity could be attached‑‑‑Presence of eye‑witnesses, who were material witnesses of occurrence, was amply proved‑‑‑Mere relationship of the eye‑witnesses with deceased, would not affect veracity of prosecution version especially when said natural end probable eye‑witnesses had offered a straightforward and confidence inspiring testimony and they were not proved to have such grudge or grouse against the accused as to prompt them to rope in accused falsely in the case‑‑­Prosecution witnesses had not offered a distorted account of occurrence and defence had failed to dislodge the version furnished by said witnesses‑‑‑Case against accused was got registered by complainant in real premises and all that had been said in F.I.R. appeared to be reasonable and true‑‑‑All eye­witnesses had made 'consistent statements supporting prosecution version and though they were subjected to a very lengthy cross‑examination, their testimony remained unshaken‑‑‑No defects or flaws were found in statements of eye‑witnesses which could adversely reflect on their evidentiary value‑‑­Minor discrepancies or some improvements to further explain certain circumstances, could not be considered as a ground for rejection of testimony of eye‑witnesses‑‑‑Motive part of occurrence was almost admitted by parties‑‑‑Medical evidence spoke of deliberate excessive violence upon deceased by most formidable weapons‑‑‑Manner of perpetration of crime had indicated that it was a calculated, pre‑planned and barbaric murder‑‑‑Number of injuries was commensurate' with number of assailants and depicted use of fire‑arms of different calibres ‑‑‑Statements of eye‑witnesses were also corroborated by recoveries of weapons‑‑‑Defence version‑which was wholly unreal, untrue, absurd and ridiculous and not supported by any evidence was discarded‑‑‑Case against accused having fully been proved, conviction and sentences awarded to them were upheld with certain modifications.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/364/380/411 & 452/148/149‑‑‑Abscondence of accused persons after the occurrence‑‑‑Effect‑‑‑Accused hibernated themselves after the occurrence and could not be arrested for more than two months‑‑­Abscondence of accused persons furnished necessary corroboration to their guilt.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/364/380/411 & 452/148/149‑‑‑Qanun‑e‑Shahadat (10 of 1984); Art. 59‑‑‑Opinion of police official and expert evidence‑‑‑Credibility‑‑‑Mere personal opinion of a police official was no legal evidence and was inadmissible in evidence‑‑‑Opinion of expert was, of course, valid.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/364/380/411 & 452/148/.149‑‑‑Fine‑‑‑Sentence of fine on a murder charge was not legal under‑the prevalent law.

Ch. M. Anwar Bhinder and Sh. Muhammad Usman for Appellants.

Muhammad Zafarullah Khan for the State.

Altaf Ibrahim Qureshi for the Complainant.

Dates of hearing: 27th, 28th and 29th March, 2000.

2001 P Cr. L J 24

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD MUSHTAQ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 455‑B of 2000, decided on 20th June, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss. 302/324/109/34‑‑‑Bail, grant of‑‑Oral testimony was in conflict with medical evidence regarding injury on the person of one deceased‑‑‑Other injury assigned to accused was on the non‑vital part of the body of other deceased‑‑‑No direct motive for the occurrence was attributed to the accused‑‑‑Accused had been found innocent by three different Investigating Officers and his name was placed in column No. 2 of the report under 5.173, Cr.P.C.‑‑‑Accused was in jail for over an year, but his trial had not yet commenced‑‑‑Case of accused squarely fell within the ambit of S.497(2), Cr.P.C. in the circumstances and he was admitted to bail accordingly.

Ghulam Nabi and another v. The State 1998 PCr.LJ 968; Muhammad lqbal v. The State 1997 MLD 1530; Muhammad Afzal v. The State 1984 SCMR 429; Amir Ali and others v. The State 1984 SCMR 521; Muhammad Abbas and 2 others v. The State 1987 SCMR 483; Dr. Muhammad Aslam v. The State 1993 SCMR 2288; Muhammad Ilyas v. Ijaz Ahmad Butt and another 1992 SCMR 1857; Syed Abdul Baqi Shah v. The State 1997 SCMR 32; Muhammad Ashraf v. The State 1999 PCr.LJ 1464; 1982 SCMR 208; Bashir Ahmad and 2 others v. The State‑1994 SCMR 1147; Liaqat Ali v. The State PLD 1994 SC 172 and Nasir Abbas v. The State 1995 SCMR 1333 ref.

Malik Shahzad Ahmad Khan for Petitioner.

Sheikh Waqar Azeem Siddiqui for the Complainant.

Malik Abdul Qayyum for the State.

Date of hearing: 20th June, 2000.

2001 P Cr. L J 29

[Lahore]

Before Sheikh Abdur Razzaq, J

Subedar MUHAMMAD YOUNAS‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 471/B of 2000, decided on 21st June, 2000.

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss. 302/324/148/149‑‑‑Bail‑‑­Accused was empty‑handed and he was alleged to have raised a Lalkara after the main occurrence stood completed for committing the murder not of the deceased but of the persons who had gathered at the spot‑‑‑Accused was in judicial lock‑up for the last nine months‑‑‑Case against accused, in circumstances, needed further probe as envisaged by S.497(2), Cr.P.C.‑‑­Accused was consequently enlarged on bail.

1996 PCr.LJ 1876; 1995 SCMR 343; 1994 SCMR 2161 and 1999 SCMR 1360 ref.

Muhammad Arshad Malik for Petitioner.

Syed Sajjad Hussain Shah, A.A.G. for the State.

Date of hearing: 21st June, 2000.

2001 P Cr. L J 31

[Lahore]

Before Riaz Kayani, J

MUHAMMAD ASHRAF‑‑‑Petitioner

Versus

S.H.O. and others‑‑‑Respondents

Writ Petition No. 12931 of 2000, heard on 16th October, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 361‑‑‑Kidnapping from lawful guardianship‑‑‑Ingredients‑‑‑Kidnapper should take the child out of the custody of the lawful guardian in order to constitute an offence of kidnapping, but if a person takes the child, may be, from the custody of the mother believing himself to be the father or in good faith believes himself to be entitled to the lawful custody, then the offence of kidnapping is not committed unless removal is committed for immoral or unlawful purpose be it at the hands of even a guardian.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 363‑‑‑Kidnapping‑‑‑Father of a child being always a natural guardian alongwith the mother, can never be ascribed or attributed the offence of kidnapping of his own child.

(c) Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss. 341/363‑‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑­Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Complainant was going with her brother‑in‑law having the minor in her lap when the accused alongwith his brother and nephew forcibly took the child from her custody‑‑‑Main role of alleged kidnapping was attributed to the accused who admittedly was the father of the child‑‑‑Taking forcibly the child from lawful guardianship by his father having not constituted an offence, of kidnapping, question of wrongful confinement of the child under S.341, P.P.C. did not arise‑‑‑F.I.R. would be quashed in its inception if the allegations made therein did not constitute any offence or did not amount to infraction of any law‑‑‑Both such aspects being applicable to the allegations contained in the impugned F.I.R., allowing the proceedings to continue would amount to gross abuse of the process of the Court which High Court in the exercise of its jurisdiction, be it under Art. 199 of the Constitution or under S.561‑A, Cr.P.C., would not countenance rather every endeavour would be made to curb the wrong at the earliest ‑‑‑F.I.R. was quashed in circumstances‑‑‑Constitutional petition was accepted accordingly.

Nazar Abbas Syed for Petitioner.

Ch. S.A. Irshad for the State.

Date of hearing: 16th October, 2000.

2001 P Cr. L J 38

[Lahore]

Before Jawad S. Khawaja, J

Messrs ADAM SUGAR MILLS LTD., CHISHTIAN---Petitioner

Versus

COLLECTOR OF CUSTOMS & CENTRAL EXCISE, CUSTOMS HOUSE, MULTAN and 5 others---Respondents

Writ Petition No. 7255 of 1998, decided on 5th April, 2000.

(a) Central Excises Act (I of 1944)---

----S. 13---Criminal Procedure Code (V of 1898), S4(i)(s)---Notifying the office of Excise functionaries as police station under S.4(i)(s), Cr.P.C.--­Necessity---Office of Excise functionary acting under the provisions of Central Excises Act, 1944 was neither required to be notified as police station under S.13 of Central Excises Act, 1944, nor any other office of the Excise' Department was to be so notified under SA(i)(s), Cr.P.C.

Muhammad Nawaz v. The State PLD 1999 Lah. 18 ref.

(b) Central Excises Act (I of 1944)---

----S. 13---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---F.I.R. was registered against the petitioner in exercise of powers conferred on Central Excise Officer under S.13 of Central Excises Act, 1944---Contention by the petitioner was that proceedings were initiated without adhering to the requirements of S.13 of Central Excises Act, 1944---Validity---Authorities having not proceeded. in the matter strictly in accordance with law, High Court directed the Authorities to proceed strictly in accordance with the provisions set out in S.13 of Central Excises Act, 1944---If the petitioner had any grievance against the procedure adopted by the Authorities, he would be entitled to invoke any available remedy under law---Constitutional petition was dismissed accordingly.

Muhammad Nawaz v. The State PLD 1999 Lah. 18 and The State v. Muhammad Yousuf PLD 1965 Lah. 324 ref.

Mian Abdul Ghaffar for Petitioner.

Ch. Sagheer Ahmed, Standing Counsel.

2001 P Cr. L J 51

[Lahore]

Before Khawaja Muhammad Sharif, J

SHABBIR AHMAD‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 483 of 1997, heard on 24th November, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Eye‑witnesses had no business to be present at the place of occurrence at the relevant time in the night away from their house‑‑‑Neither the complainant nor anybody else present in the house had asked the deceased as to why he was accompanying the accused at odd hours of the cold winter night‑‑‑Recovery of empty cartridge from the spot was not shown in the relevant columns of the inquest report‑‑‑Crime empty had been sent to the Expert after recovery of the pistol‑‑‑No motive whatsoever was given in the F.I.R.‑‑‑Date of post-mortem examination of the deceased was doubtful‑‑‑Accused was acquitted on benefit of doubt in circumstances.

M.A. Zafar for Appellant.

Raja Nasim Sabir for the State.

Nemo for the Complainant.

Date of hearing: 24th November, 1999.

2001 P Cr. L J 56

[Lahore]

Before Ehsanul Haq Chaudhry, J

KHALID AZIZ‑‑‑Petitioner

Versus

THE SPECIAL COURT (OFFENCES IN BANKS), LAHORE and another‑‑‑Respondents

Writ Petition No. 20026 of 1998, decided on 20th April, 1999.

Offences in Respect of Banks (Special Courts) Ordinance (II of 1984)‑--

‑‑‑S. 10‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Constitutional petition filed by petitioner/accused was resisted on ground that same was not maintainable as under S.10 of Offences in Respect of Banks (Special Courts) Ordinance, 1984, petitioner could file appeal which was to be heard by two Judges of the High Court‑‑­Petitioner hade alleged that his trial being in absentia was void and that had Constitutional petition not been admitted to hearing, petitioner might have resorted to file appeal‑‑‑Whole grounds including that of illegal absentia trial, could validly be raised by petitioner in appeal‑‑‑Even otherwise petitioner, who had not surrendered himself being fugitive from law, could not maintain Constitutional petition.

Muhammad Farooq Bedar for Petitioner.

Sh. Anwar‑ul‑Haq, Dy. A.G. for Respondents.

2001 P Cr. L J 60

[Lahore]

Before Asif Saeed Khan Khosa, J, ALAM SHER ---Petitioner

Versus

SUBA and others---Respondents

Writ Petition No. 23200 of 1998, heard on 25th October, 1999.

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

----S. 145---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Dispute concerning turbine (tube-well), a joint property of the parties---Magistrate, after having considered the preliminary evidence on record as well as all other relevant factors connected with the issue between the parties, had dismissed the application of the respondent for initiation of proceedings under S.145, Cr.P.C. by means of a detailed order---Said order of the Magistrate did not suffer from any jurisdictional infirmity, illegality of approach, irregularity of procedure or perversity of reasoning---Sessions Judge, therefore, could not interfere with the said order in exercise of its revisional jurisdiction---Even otherwise, reasons advanced by the Sessions Judge for setting aside the order of the Magistrate and directing him to immediately attach the turbine in question were not sufficient for interference in the proper and lawful order of the Magistrate---Impugned order passed by the Sessions Judge had mainly proceeded on generalized considerations without appreciating all the relevant aspects of the matter---Civil litigation in respect of the turbine in question was going on between the parties in which Civil Court had regulated, by a stay order, the possession as well as working of the said turbine and proceedings under S.145, Cr.P.C. were generally not to be encouraged on the same issue by the Sessions Judge---Magistrate while dismissing the application of respondent for proceeding under S.145, Cr.P.C. had directed the local police to proceed under Ss. 107/151, Cr.P.C. in case of apprehension of breach of peace between the parties and, thus, had sufficiently taken care of apprehensions expressed by respondent in his application--Impugned order passed by Sessions Judge was declared to be without lawful authority and of no legal effect in circumstances an order of the Magistrate was restored.

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

----S. 145---Dispute concerning land etc.---Practice and procedure---Where the subject-matter of an application under S.145, Cr.P.C. is already regulated by a stay order issued by a Civil Court, the proceedings under S.145, Cr.P.C. ace generally not to be encouraged on the same issue.

Ghulam Hussain Malik for Petitioner.

M. A. Zafar for Respondent No. 1

Nemo for Respondents Nos. 2 and 3.

Date of hearing: 25th October, 1999.

2001 P Cr. L J 70

[Lahore]

Before Tanvir Ahmad Khan, J

MUAZZAM WATTOO---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1552/13 of 1999, decided on 13th April, 1999

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.409/379/109 --- Prevention of Corruption Act (II of 1947), S.5(2)---Bail, grant of---Allegations in F.I.R. had reflected that involvement of accused had been claimed due to his liking for articles which were alleged to be missing and complainant had only entertained suspicion against the accused---Investigation had since been completed and supplementary challan had already been submitted---Bail was granted to accused in view of mere suspicion against the accused.

Syed Shabbar Raza Rizvi for Petitioner.

Irshad Ahmad Chatha, Special Public Prosecutor

2001 P Cr. L J 80

[Lahore]

Before Iftikhar Hussain Chaudhry, J

MUHAMMAD NADEEM BUTT and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 3476/B of 2000, decided on 1st September 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/324/148/149/109---Bail, grant of---Allegation against accused was simply of ineffective firing--­Weapons employed by accused in the course of occurrence were not recovered---Crime empties recovered from the spot had matched with the weapons recovered at the instance of other accused---Case against accused, in circumstances, needed further, inquiry and they were allowed bail accordingly.

Aftab Ahmad Bajwa, Advocate.

M. Iqbal Bhatti, Advocate.

S.D. Qureshi for the State.

2001 P Cr. L J 83

[Lahore]

Before Iftikhar Hussain Chaudhry, J

MUHAMMAD RAMZAN---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 157 of 1997, heard on 9th February, 1998.

Penal Code (XLV of 1860)---

----Ss. 324, 337-F(iv)(vi) & 337-D---Appreciation of evidence---Accused had a motive for the occurrence---Occurrence having taken place during day time, question of mistaken identity of accused could not arise---Despite having received a large number of injuries, complainant had bonafidely charged the accused alone for the same---Complainant had no reason to substitute the accused for the real culprit---Testimony of the complainant was supported by other eye-witness and physical evidence---Accused had already been dealt with leniently by the Trial Court in the matter of sentence and no further indulgence in this regard could be shown to him---Convictions and sentences of accused were maintained in circumstances.

M.A. Zafar for Appellant.

A.H. Masood for the State

Date of hearing: 9th February, 1998.

2001 P Cr. L J 92

[Lahore]

Before Nazir Ahmad Siddiqui, J

MUHAMMAD ABDULLAH---Petitioner

Versus

DISTRICT MANAGER, AUQAF, BAHAWALPUR and 6 others---Respondents

Writ Petition No. 1396 of 1996/BWP, heard on 17th February, 2000.

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

----S. 145---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Recovery of possession of land---Respondent obtained lease of the suit land in open auction which previously was in possession of the petitioner---Possession of the land was handed over to the respondent by the petitioner after the auction---Petitioner allegedly got a portion of land in dispute on sub-lease from respondent---On application by respondent seeking possession of said portion---Assistant Commissioner passed order for providing police assistance for recovery of possession of the land---Validity---Where there was apprehension of breach of peace, police assistance was sought and Assistant Commissioner had passed a just and fair order appropriate under the circumstances and the same called for no interference---Constitutional petition was dismissed in circumstances.

Hafiz M. Abdul Qayyum for Petitioner.

M. Shamshair Iqbal Chughtai and Malik Abdul Ghafoor for Respondents Nos. 5 and 6.

Date of hearing: 17th February, 2000.

2001 P Cr. L J 93

[Lahore]

Before Dr. Munir Ahmad Mughal, J

MUHAMMAD AMJAD alias MUHAMMAD AZMAT and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 4274/B of 2000, decided on 11th September, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.337-A(i), (ii), (iii)/337-L(2)/ 452/148/149---Bail, grant of---One accused was an old man of 75 years which was an age of infirmity bringing his case within the ambit of first proviso to S.497(1); Cr.P.C.---Punishment of all offences except the one under S.337-A(iii), P.P.C. was less than ten years---Delay of four days in lodging the F.I.R. was not plausibly explained---Victim was got medically examined after a delay of 24 hours---Case against accused needed further inquiry as envisaged by S.497(2), Cr.P.C.---Accused were admitted to bail accordingly.

Ch. Din Muhammad Meyo for Petitioners.

Mrs. Deba Mirza for the State.

2001 P Cr. L J 97

[Lahore]

Before Riaz Kayani, J

MUHAMMAD IQBAL---Petitioner

Versus

NABI BAKHSH and 8 others---Respondents

Writ Petition No. 15570 of 2000, decided on 4th August, 2000.

Criminal Procedure Code (V of 1898)---

----S. 154---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Registration of criminal case--Dispute regarding attestation of mutation---Matter was pending before Revenue Authorities as well as before Civil Court---Contention by the petitioner was that a criminal case be registered against the respondents for alleged misstatement before the Revenue Authorities whereby disputed mutation was attested---Validity--­Matter having proceeded before the Revenue Authorities partial relief had been allowed to the petitioner---Legal heirs were to be determined in the civil suit which, was pending and the shares of the heirs would be ascertained therein---Misstatement having been rectified, no cognizable offence was made out in circumstances.

Akhtar Ali Qureshi for Petitioner.

2001 P Cr. L J 110

[Lahore]

Before Muhammad Asif Jan, J

SAIFULLAH and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 3185/B of 2000, decided on 28th July, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.324/148/149---Bail, grant of--­Accused had no intention to kill the passerby and their act of indiscriminate firing was yet to be established at the trial after evidence---Reasonable grounds for believing the accused guilty of the alleged offence, prima facie, did not exist, rather case against them called for further inquiry within the meaning of S.497(2), Cr.P.C.---Accused were enlarged on bail accordingly.

Rana Muhammad Arif for Petitioners.

Shan Gul assisted by Muhammad Hanif Saleemi for the State.

2001 P Cr. L J 113

[Lahore]

Before Muhammad Akhtar Shabbir, J

Mst. AZIZ MAI ---Petitioner

Versus

MUHAMMAD ASLAM and others---Respondents

Criminal Miscellaneous No. 87/H of 2000, decided on 18th February, 2000.

Criminal Procedure Code (V of 1898)--

----S. 491---Petition for recovery of minor detenu---Minor detenu who was in custody of his paternal uncle opted to go with petitioner who was his mother---Petitioner being mother of minor had preferential right to have custody of her minor son---Paramount consideration for the welfare of minor is that his custody be given to his mother---Custody of minor was given to his mother till decision of application filed by petitioner before Guardian Judge for appointment of guardian of persons and property of the minors.

Abdul Aziz Khan Niazi for Petitioner.

Ghazanfar Ali Bhutta for Respondents.

2001 P Cr. L J 115

[Lahore]

Before Muhammad Nawaz Abbasi, J

ZOOR TALAB---Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION GUJAR KLAN and another---Respondents

Criminal Miscellaneous No. 128/HC of 2000, decided on 5th September, 2000.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Detenus were neither arrested as accused, nor they were produced before any Magistrate and were being kept in the police lock-up for the last five days in an illegal manner---S.H.O. and the Moharrir of the police station having immediate physical custody of the detenus had, thus, committed a criminal offence ---Detenus had also complained against the S.H.O. of physical torture and sustaining of injuries during police custody---Detenus were set at liberty in circumstances with the direction to Senior Superintendent of Police to register a case against the S.H.O. and the Moharrir of the police station for the said illegal acts committed by them in addition to proceedings against them departmentally for misuse of powers and misconduct.

Ghufran Khurshid Imtiazi for Petitioner.

Raja Saeed Akram, Asstt. A.G. for Respondents.

2001 P Cr. L J 117

[Lahore]

Before Khawaja Muhammad Sharif, J

SHAHID AHMAD --- Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 130 of 1999, heard on 8th July, 1999.

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

----S. 10(3)---Anti-Terrorism Act (XXVII of 1997), S.7---Appreciation of evidence---Parties had no previous background of enmity---Occurrence had taken place in broad daylight---Accused was apprehended on the spot and he being the only accused in the case, no question of substitution could arise--­Ocular account of occurrence had come from an unimpeachable source and the same was corroborated by medical evidence---Accused had acted devilishly and he did not deserve any leniency---Conviction and sentence of accused under S.10(3) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, were upheld in circumstances---No case under S.6 of the Anti-Terrorism Act, 1997, however, having been made out against the accused, his conviction and sentence under S.7 of the said Act were set aside.

Shabbir Ahmad Khan for Appellant.

Muhammad Bashir Chaudhry, A.A.G. for the State.

Date of hearing: 8th July, 1999.

2001 P Cr. L J 123

[Lahore]

Before Asif Saeed Khan Khosa, J

TAHIR alias TAHIRA--- Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 3418/B of 2000, decided on 8th September, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Bail, grant of ---F.I.R. suffered from a delay of six days---No mark of violence was found on any part of the body of the victim---Vaginal swabs of the victim were not stained with semen---Statement of the victim was not recorded under S.164, Cr.P.C.---Co-accused in the case had been found innocent by the police---Eye-witnesses did not belong to the village of occurrence but to a different village---Serious enmity existed between the parties ---Challan had been submitted in the Court after finalization of investigation and keeping the accused in jail could not serve any beneficial purpose at such stage---Case against accused called for further inquiry into his guilt within the purview of S.497(2), Cr.P.C.---Bail was allowed to accused in circumstances.

Rai M. Tufail Khan Kharal for Petitioner.

Ch. Ali Muhammad for the State.

2001 P Cr. L J 130

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD JAMIL---Appellant

Versus

THE STATE---Respondent

Criminal Appeals Nos. 207 and 159 of 1998, decided on 24th May, 2000.

Penal Code (XLV of 1860)---

----Ss, 302, 309 & 311---Appreciation of evidence---Reduction of sentence --­F.I.R. was promptly lodged and both eye-witnesses were natural witnesses--­No previous background of enmity existed between the parties---Accused had killed his real brother giving 8 incised wounds on his person and most of them were on vital parts of his body---Ocular account was corroborated by medical evidence---Father of accused who was also father of deceased and other legal heirs of deceased, except widow of deceased who was complainant in the case and minor son of deceased, had waived their right of "Qisas"---Conviction and sentence awarded to accused under 'S.302, P.P.C. were converted to Ss. 309 & 311, P.P.C. with direction that accused would not be released unless he served out his sentence' under said sections and also Diyat amount was paid to widow and minor son of deceased in accordance with Sharia.

N .A. Butt for Appellant.

Dr. Muhammad Yousaf Awan for the State.

Muhammad Sharif Chauhan for the Complainant.

Date of hearing: 24th May, 2000.

2001 P Cr. L J 134

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

ZAHID SHAH---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 4454/B of 2000, decided on 29th August, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/34---Bail---Presence of accused on the spot was established during investigation---Non-recovery of weapon from the accused was of no help to him in the presence of ocular testimony which was in line with medical evidence---Specific role in the occurrence had been attributed to the accused---Offence with which the accused was charged was permissible with death---Bail was declined to accused in circumstances.

Shahid Hussain Qadri for Petitioner.

A.H. Masood for the State.

2001 P Cr. L J 135

[Lahore]

Before Zafar Pasha Chaudhry, J

SHAHBAZ AHMAD and others---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 236 and Criminal Revisions Nos. 347 and 348 of 1993, heard on 5th March, 1998.

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

----Ss. 302/34---Appreciation of evidence---Relationship of eye-witnesses with the deceased did not in any manner render their evidence as untrustworthy ---Occurrence having been promptly reported to the police, presence of eye-witnesses at the spot could hardly be doubted---Crime empties secured from the place of incident were found to have been fired from the rifle recovered from the accused---Hatchet recovered at the instance of other accused was also found to be stained with human blood---Ocular account was not only supported by the evidence of recovery but also by medical evidence and the same inspired confidence---Accused having committed the murder to vindicate the family honour conviction and lesser punishment of imprisonment for life awarded to accused by Trial Court were upheld in circumstances.

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

----Ss. 302/34---Criminal Procedure Code (V of 1898), S.154---Entries made in the relevant column of the F.I.R. have to be accepted as correct unless the same are rebutted by adducing reliable evidence or by pointing out strong circumstances suggesting that the matter had not been reported promptly as Roznamcha was stopped and the entries were ante-timed.

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

----Ss. 302/34---Appreciation of evidence---Inimical witness---Strong corroboration must be sought to rely upon the testimony of the witness who is inimical to the accused.

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

----Ss. 302/34---No recovery having been effected from the accused necessary corroborative evidence was lacking qua him---Accused had been found innocent during the course of investigation---Trial Court, therefore, was justified to acquit the accused on benefit of doubt.

Ch. Arshad Mahmood for Appellant.

M.A. Zafar for the Complainant.

J.V. Gardner for the State.

Date of hearing: 5th March, 1998.

2001 P Cr. L J 146

[Lahore]

Before Malik Muhammad Qayyum and Raja Muhammad Sabir, JJ

IFTIKHAR HUSSAIN and others---Appellants

Versus

GOVERNMENT OF PAKISTAN and others---Respondents

Intra-Court Appeal No. 414 of 1995, decided on 24th October, 1995.

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

----Ss. 409, 420, 468, 471 & 109---Prevention of Corruption Act (II of 1947), S.5(2)---Constitution of Pakistan (1973), Art. 199---Law Reforms Ordinance (XII of 1972), S.3(2)---Quashing of F.I.R.---Intra-Court appeal---Maintainability---Constitutional petition filed by accused for quashing of F.I.R. registered against them having been dismissed by Single Judge; of High Court, accused had filed Intra-Court Appeal against the dismissal order---Said appeal had been objected to on ground that Constitutional petition having arisen out of proceedings under Criminal Procedure Code which had provided appeal and revision, appeal against order passed by 'Single Judge, High Court was not maintainable---Validity---In order to take away right of appeal it had to be shown that original order in proceedings was appealable and revisable---Act of registration of case under Criminal Procedure Code neither being appealable or revisable, mere fact that against' certain other orders which were not under challenge before Single Judge of High Court, an appeal and revision was provided by Code of Criminal Procedure, could not take away right of appeal against order of Single Judge of High Court---Even if co-accused was in custody of police under order of remand, acceptance of Constitutional petition would not amount to setting aside the remand order which was revisable, because Constitutional petition was filed by accused at the time when no remand order was in existence and accused had challenged act of registration of F.I.R. and not remand order which was passed subsequent to filing of Constitutional petition.

Mst. Karam Bibi and others v. Hussain Bakhsh and another PLD 1984 SC 344 and Muhammad Abdullah v. Deputy Settlement Commissioner, Centre-I, Lahore PLD 1985 SC 107 ref.

(b) Federal Investigation Agency Act, 1974 (VIII of 1975)---

----Preamble---Object of the Act---Object of framing Federal Investigation Agency Act, 1974 as per its preamble, was to set up an Investigating Agency to investigate into offences committed in connection with matters concerning Federal Government and matters connected therewith---Contention that in respect of offences falling with Schedule to said Act, Agency set up under said Act had jurisdiction and power to investigate and register a case notwithstanding that Federal Government could not be connected with dispute, was repelled, some nexus has to be there even though remote and indirect, between the acts complained of and the Federal Government in order to attract jurisdiction of the F. I. A.---Preamble would provide a useful guide for finding out intention of Legislature and could not be ignored while interpreting law.

Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan and others PLD 1972 SC 279; Muhammad Hussain Patel v. Gaffar Wali Muhammad and others PLD 1972 Kar. 421 and Syed Akhlaque Hussain v. Habib Ismail Bajwa PLD 1969 Lah. 563 ref.

(c) Interpretation of statutes---

----Preamble---Role in interpretation---Preamble would provide a useful guide for finding out intention of Legislature and could not be ignored while interpreting law.

Murree Brewery Co. Ltd. v. Pakistan through The Secretary to Government of Pakistan and others PLD 1972 SC 279; Muhammad Hussain Patel v. Gaffar Wali Muhammad and others PLD 1972 Kar. 421 arid Syed Akhlaque Hussain v. Habib Ismail Bajwa PLD 1969 Lah. 563 ref.

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

----Ss. 409/420/468/471/109---Prevention of Corruption Act (II of 1947), S.5(2)---Banking Companies Ordinance (LVII of 1962), Ss. 83 & 84--?Constitution of Pakistan (1973), Art. 199---Quashing of F. I. R. ---Accused had contended that Federal Investigation Agency being a Federal Agency which could only operate and take action in respect of offences concerning Federation or Federal Government, was not empowered to register case against accused who was Chairman/Managing Director of Bank of Punjab as said matter fell within exclusive domain of Province---Contention of accused was repelled because Bank of Punjab, on its own application, had been declared to be a Scheduled Bank by State Bank of Pakistan under State Bank of Pakistan Act, 1956 which was a Federal statute---Bank of Punjab, as a scheduled Bank, was amenable to control and supervision of State Bank under State Bank of Pakistan Act, 1956 and Banking Companies Ordinance, 1962, both of which were Federal Subjects---At time when acts complained against accused were said to have been committed through Bank of Punjab of which accused was an employee, the Bank was not a scheduled Bank, but at time when complaint was made and case was registered by Federal Investigating Agency against accused, said Bank had become a scheduled Bank and was amenable to control of State Bank of Pakistan to which Banking Companies Ordinance, 1962 had been made applicable--?Registration of case against accused, matters of inquiry and investigation and even form of trial were purely procedural in nature and laws could be retrospectively applicable---Federal Investigation Agency, therefore, had jurisdiction in the matter.

Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Nabi Ahmad and another v. Home Secretary, Government of West Pakistan, Lahore and others PLD 1969 SC 599; Fauji Foundation and another v. Shamimur Rehman PLD 1983 SC 457; Mehreen Zaibun Nisa v. Land Commissioner, Multan and others PLD 1975 SC 397; Messrs Haider Automobile Ltd. v. Pakistan PLD 1969 SC 623 and Messrs Nawab Sons Laboratories Ltd., Lahore v. The Superintendent of Police, F.I.A. and another PLD 1976 Lah. 813 ref.

(e) Banking Companies Ordinance (LVII of 1962)---

----Ss. 83 & 84---Provisions of S.84, Banking Companies Ordinance, 1962 had taken away the jurisdiction of any other Court except the High Court to take cognizance of offence and had not barred registration of case or investigation by any other agency.

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

----Ss. 409/420/468/471/109---Prevention of Corruption Act (II of 1947), S.5(2)---Bank of Punjab Act (XII of 1989), S.26---Constitution of Pakistan (1973), Art. 199---Quashing of F. I. R.---Immunity from prosecution--?Accused had contended that he being Chairman/Managing Director of Bank of Punjab enjoyed immunity from prosecution and that no case could be registered against him at least without first holding an enquiry and determining that he had not acted in good faith---Contention of accused was repelled because on his own showing immunity was not absolute, but was conditional upon existence of "good faith"---Accused could not claim immunity from prosecution in respect of criminal act, if committed by him--?Question of "good faith" was one of fact and immunity given by S.26 of Bank of Punjab Act, 1989 would only be available to those acts which were done honestly and in good faith.

Dr. A. Basit for Appellant.

Zafar Pasha Chaudhry, Dy. Attorney-General for Respondents Nos. 1, 2 and 6.

Muhammad Nasim Kashmiri, Addl. A.G. for Respondent No. 3.

M. Saleem Sehgal for Respondents Nos. 4 and 5.

Date of hearing: 24th October, 1995.

2001 P Cr. L J 160

[Lahore]

Before Asif Saeed Khan Khosa, J

Rana LATIF AHMAD---Petitioner

Versus

JUDICIAL MAGISTRATE, SHUJABAD, DISTRICT MULTAN---Respondent

Writ Petition No. 8992 of 2000, decided on 24th August, 2000.

Criminal Procedure Code (V of 1898)---

----Ss. 157, 158, 159 & 167---Prohibition (Enforcement of Hadd) Order (4 of .1979), Art. 3/4---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Constitution of Pakistan (1973), Art. 199---Discharge of accused in criminal case---Discharge of an accused person in a criminal case would not amount to acquittal and would not mean that prosecution against accused had been smothered or had come to an end---Discharge of accused only pertained to custody of accused and his discharge was only from his bond which would mean that custody of accused was no longer required in the case for the purposes of investigation and such an accused would not require bail--­Discharge of accused was only an administrative/executive act and question as to which Court was to ultimately try the accused was hardly relevant to the matter---Order of discharge passed by the Magistrate could be challenged before High Court by the State and not by the police official arresting the accused---Discharged accused could still be summoned to face trial by Trial Court if sufficient material providing justification to proceed against him became available---Case though was triable by Court of Session, even then Magistrate was fully authorised to discharge the accused.

Muhammad Dildar Hussain and another v. The Civil Judge/Judicial Magistrate, Shujabad and 3 others 2000 PCr.LJ 43; Sardar Muhammad v. Zaffar Javaid Awan and others PLJ 1996. Lah. 680; Parul Bala Sen Gupta v. The State AIR 1957 Cal. 379 and Muhammad Waseem v. Additional Sessions Judge and 3 others 1985 PCr.LJ 244 ref.

Sardar Mahboob for Petitioner.

2001 P Cr. L J 171

[Lahore]

Before Maulvi Anwarul Haq, J

Mst. ZULEKHAN BIBI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 933/B of 2000, decided on 5th July, 2000.

Criminal Procedure Code (V of 1898)-

----S. 497---Penal Code (XLV of 1860), Ss. 302/34---Bail, grant of--­Accused was not named in the F.I.R. and complainant not only had expressed a suspicion against the accused, but in his affidavit had exonerated her and the person who had stated that he had seen murdered child with accused had also given affidavit resiling from his statement---Alleged extra­-judicial confession of accused, was very weak piece of evidence---Nothing was on record to connect accused with offence---Case against accused being of further enquiry, she was admitted to bail.

Tayyab Hussain Shah v. The State 2000 SCMR 683 ref.

Mian Muhammad Nawaz Dhuddi for Petitioner.

Raja Khurram Sultan for the Complainant.

2001 P Cr. L J 180

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 118/B of 2000, decided on 2nd March, 2000

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/147/149---Bail---Accused alongwith four others had been charged for committing murder of the deceased---Role of causing injury on the left flank of the deceased had been assigned to the accused---Medical Officer of the jail concerned had not said in his report that the accused could not be treated of his ailment inside the jail---Accused, therefore, was not an infirm and sick person---Bail was disallowed to accused in circumstances.

Zakhim Khan Masood v. The State 1998 SCMR 1065; Mian Manzoor Ahmad Wattoo v. The State 2000 SCMR 107; The State v. Sarzaman and another 1996 PCr. LJ 1432; Muhammad. Nowez v. The State 1998 PCr.LJ 166; Malik Muhammad Saleheen and others v. Arshad Siddiq and 2 others 1997 SCMR 1829 and Khalid Javed Gillan v. The State 1978 SCMR 256 ref.

Mrs. Samina Khan for Petitioner.

Mirza Farooq Anwar for the State.

Date of hearing: 2nd March, 2000.

2001 P Cr. L J 182

[Lahore]

Before Maulvi Anwarul Haq, J

MUHAMMAD JAMIL, CHIEF ACCOUNTANT, THAL JUTE MILLS, MUZAFFARGARH---Petitioner

Versus

NASIR NAEEM and another---Respondents

Criminal Revision No. 38 of 1989, decided on 8th February, 2000, Penal Code (XLV of 1860)---

----S. 411---Criminal Procedure Code (V of 1898), S.439---Revision petition against acquittal---No evidence was available on record to show that the amounts recovered from the accused were the same which had been stolen from the cash box of the Mill---Currency notes according to prosecution had been identified with reference to their numbers, but the same were neither mentioned in the recovery memos nor the police had been informed about them---Possession of the respective amounts had been sufficiently explained by the accused in their statements recorded under S.342, Cr.P.C. as also through a defence witness---Impugned judgment of Sessions Court acquitting the accused, in circumstances, did not suffer from any illegality or impropriety---Revision petition was dismissed accordingly.

Syed Murtaza Ali Zaidi for Petitioner.

Khan Wajid Nawaz Khan for the Accused.

Anwar-ul-Haq for the State.

Date of hearing: 8th February, 2000.

2001 P Cr. L J 185

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD AKRAM and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 155/B of 2000, decided on 8th March, 2000.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302/337-H(ii)/148/149---Bail--­Accused at the time of occurrence were allegedly armed with one .12 bore gun and a rifle and had resorted to ineffective firing---Weapons of offence had been recovered from the accused and crime empties had been secured from the spot---Blood-stained piece of brick had also been taken into possession from the place of occurrence by which the deceased lady had allegedly been injured---Accused, thus, appeared to have participated in the occurrence---Bail was declined to accused in circumstances.

Muhammad Anwar Khan and 2 others v. The State 1988 PCr.LJ 304; Mumtaz Hussain and 5 others v. The State 1996 SCMR 1125; Muhammad Rashid v. The State 1979 SCMR 92; Munawar v. The State 1981 SCMR 1092; Anwar and another v. The State 1985 PCr.LJ 1626 and Qamar Abbas alias Goshy v. The State 1985 PCr.LJ 3019 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302/337-H(ii)/148/149---Bail, grant of---Accused had been attributed a general allegation of pelting stones on the house of the complainant which was not corroborated by any piece of evidence---Case of accused, thus, required further probe---Bail was allowed to accused accordingly.

Ch. Muhammad Yaqoob for Petitioners.

Malik Muhammad Nawaz for the Complainant.

Aftab Ahmad Gujjar for the State.

Date of hearing; 8th March, 2000.

2001 P Cr. L J 188

[Lahore]

Before Ghulam Mahmood Qureshi, J

Mst. BAKHTAWAR MAI ---Petitioner

Versus

S.H.O., POLICE STATION KHAIRPUR SADAAT, DISTRICT MUZAFFARGARH and another---Respondents

Writ Petition No. 4787-Q of 2000, heard on 11th July, 2000.

(a) Muslim Law---

----Marriage---Marriage is a civil contract and every Muslim of sound mind, who has attained puberty, can enter into contract of marriage and is void only when it is brought about without his or her consent.

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

----S. 10/11---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F. I. R. ---Allegation against accused was that she alongwith another person had abducted minor daughter of complainant and had forcibly got her married with one of the accused persons---Evidence on record had proved that alleged abductee who was sui juris and had attained the age of puberty had married the accused with her consent---Alleged abductee appeared in the Court and was found to be sui juris---Medical evidence had proved her to be an adult---Complainant had failed to prove that alleged abductee was minor of fifteen years of age---Marriage of alleged abductee, who was competent to marry with her consent having been proved through valid Nikahnama, F.I.R. lodged against accused under Ss. 10 & 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was ordered to be quashed in circumstances.

Muhammad Arif Alvi for Petitioner.

Sh. Muhammad Rahim for Respondents.

Sarfraz Ahmad Zia for the Complainant.

Date of hearing: 11th July, 2000.

2001 P Cr. L J 190

[Lahore]

Before M. Naeemullah Khan Sherwani, J

Mst. SHAMIM AKHTAR and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 2083/B of 1999, decided on 21st December, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 18/10---Penal Code. (XLV of 1860) Ss. 4207468/471----Bail--­Factum of marriage between both the accused having been admitted, case, against them needed further probe as contemplated by S.497(2), Cr.P.C.--­Accused were allowed bail accordingly.

Syed Murtaza Ali Zaidi for Petitioners.

Chaudhry Pervaiz Aftab for the Complainant.

Sheikh Muhammad Rahim for the State.

Date of hearing: 21st December, 1999.

2001 P Cr. L J 192

[Lahore]

Before M. Javed Buttar, J

FARZAND ALI ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 5132/CB of 2000, decided on 3rd October, 2000.

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

----S. 497(5)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Petition for cancellation of bail---Nothing was available on record to connect accused directly with commission of offence---Report of Chemical Examiner had shown that two vaginal swabs were sent to his office, whereas according to Chemical Examination Report only one vaginal swab was sent---Report of Chemical Examiner had shown that one swab had been sent to Serologist for semen grouping, but Report of Serologist had not been brought on record which pointed general weakness in prosecution case and in absence of such report it could not be said with certainty that semen detected in vaginal swab was that of the accused---Prosecution witnesses though closely related to complainant, had totally absolved accused of commission of offence by giving affidavit before Investigating Officer to the effect that they did not see any occurrence as alleged in the F.I.R. against accused and by declaring accused as innocent---Accused present in the Court was a young boy of tender age by his looks---Case against accused required further inquiry---Order granting concession of bail to accused, could not be recalled, in circumstances.

Khan Zaman v. The State 1991 PCr.LJ 928; Abdul Jabbar v. The State PLD 1991 SC 172; Naseer Ahmad v. The State PLD 1997 SC 347; Khalil v. Maulvi Miskeen and another 1995 PCr.LJ 1701; Allah Yar v. The State and another 1993 PCr.LJ 1600 and Muhammad Wasi Qureshi v. Abdul Majeed and others 1993 MLD 212 ref.

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

----S. 497(5)---Bail, cancellation of---Considerations for---Considerations for cancellation of bail granted to accused, were entirely different from the ones for grant of bail.

M. Shahid Maqbool Sheikh for Petitioner.

Muhammad Hanif Saleemi for the State.

Ch. Jamil Ahmad Sandhu, Advocate.

2001 P Cr. L J 196

[Lahore]

Before Sheikh Abdur Razzaq, J

GHULAM RASOOL---Petitioner

Versus

THE STATE---Respondent

No. 1118/B of 1999, decided on 16th December, Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/324/109/34---Bail, grant of---Nothing had been recovered from the accused although he was allegedly armed with a kalashnikov at the relevant time---Accused had been found innocent in three successive investigations---Ten empties had been recovered from the place of occurrence, out of which nine empties were found wedded with the kalashnikovs recovered at the instance of co-accused---Accused had been placed in column No. 2 of the challan---Case of accused, in circumstances, fell within the ambit of S.497(2), Cr.P.C. and he was admitted to bail accordingly.

Manzoor and 4 others v. The State PLD 1972 SC 81; Abdul Marian alias Bilan v. The State PLD 1999 Lah. 74; Muhammad Ilyas v. Ijaz Ahmad Butt and another 1992 SCMR 1857 and Gulzar Ahmad v. The State 1994 SCMR 1728 ref.

Ch. Zahoor Hussain for Petitioner.

Raja M. Ayub Kayani for the State.

Date of hearing: 16th December, 1999.

2001 P Cr. L J 214

[Lahore]

Before Sheikh Abdur Razzaq, J

AZIZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1079/B of 1999, decided on 20th January, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/34/109---Bail, grant of---Accused was though shown to be armed with a pistol at relevant time, but he had not been assigned any role of causing any injury to either of the deceased persons and injuries to the deceased were attributed to co-accused---Accused had not participated in causing injuries to deceased except that his pistol was snatched from him by his co-accused who was alleged to have caused an injury to one of the deceased---Recovery of alleged pistol had not been made from accused, but was effected from the co-accused---Question whether accused had shared common intention with his co-accused, was to be resolved at the time of trial---Accused to whom no active role was attributed was in jail for about six months---Case of accused fell within ambit of S.497(2), Cr.P.C. which had entitled him to grant of bail.

Mumtaz Hussain and 5 others v. The State 1996 SCMR 112; Muhammad Haroon and another v. The State 1994 SCMR 2161 and Attaullah and 3 others v. The State and another 1999 SCMR 1320 ref.

Muhammad-Asif Chaudhry for Petitioner.

Qazi Ahmed Naeem Qureshi for the State.

Date of hearing: 20th January, 2000.

2001 P Cr. L J 216

[Lahore]

Before Maulvi Anwarul Haq, J

ALLAH DITTA and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 767/B of 2000, decided on 27th April, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 337-A(ii), 337-A(iii), 337-F(vi) & 337-L(ii)/34---Bail, grant of---Case appeared to be of a brawl as both parties scuffled and injured each other---Opposite-party had already been granted bail---No extraordinary circumstances had been pointed out by complainant which could constitute an impediment in way of granting bail to accused who were charged with offence not falling within prohibitory clause of S.497, Cr.P.C.---Case being a cross-case it was a matter of further inquiry as to which of the parties was an aggressor--Accused were admitted to bail in circumstances.

Altaf Ibrahim Qureshi for Petitioners.

Ch. Khalil Ahmad Sindhu for the Complainant.

Date of hearing: 27th April, 2000.

2001 P Cr. L J 218

[Lahore]

Before Sheikh Abdur Razzaq, J

M. HAFEEZ AHMAD and others---Petitioners

Versus

THE STATE and others---Respondents

Writ Petition No. 2631 of 1999, decided on 8th March, 2000.

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

----Art. 199---Criminal Procedure Code (V of 1898), S.561-A---Quashing of proceedings---Mere pendency of civil suit does not absolve a party from criminal proceedings, provided the facts of the case establish the same--­Where, however, the facts of the case do not disclose mens rea or constitute any offence, then to allow the proceedings to continue amounts to abuse of the process of the Court and the pendency thereof cannot be allowed to be used as an instrument of harassment or coercion for attaining unlawful purpose.

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

----Ss. 406/419---Constitution of Pakistan (1973), Art. 199---Quashing of proceedings ---F.I.R. had been lodged after four years of the occurrence and about two years of institution of civil suit---No case under S.406/419, P.P.C. was made out---Criminal proceedings, thus, had been resorted to as a vehicle of oppression and coercion against the accused which amounted to abuse of the process of the Court and not permitted by law--­Proceedings emanating from the impugned F.I.R. were quashed in circumstances.

Javaid Hamid v. Hassan Jan and 2 others PLD 1991 Pesh. 121; Shaikh Muhammad Taqi v. The State 1991 PCr.LJ 963; Ch. Pervaiz Elahi v. The Federation of Pakistan through Secretary, Ministry of Interior, Islamabad and 3 others 1995 MLD 615; Abdul Ghafoor and others v. Raeesuddin and another 1991 MLD 376; Rehmatullah v. Abdul Aziz and another 1974 PCr.LJ 541; Syed Saad Bin Zarif v. The State 1993 PCr.LJ 223 and Khadim Ali and 3 others v. The State and another PLD 1982 Lah. 512 ref.

Muhammad Ilyas Siddiqi for Petitioners.

Z. Muhammad Babar Awan for Respondent No. 3.

Date of hearing: 8th March, 2000.

2001 P Cr. L J 222

[Lahore]

Before Sheikh Abdur Razzaq, J

IQTIDAR SHAH JAFRI and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos. 65/Q of 1999 and 122/M of 2000, decided on 3rd March, 2000.

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

----Ss. 369 & 561-A---Correction/clarification of order---Inherent jurisdiction of High Court---Provision of S.561-A, Cr.P.C. confers inherent powers upon High Court to make such orders as may be necessary to give effect to any order under Cr.P.C. or to prevent abuse of the process of any Court or otherwise to secure the ends of justice, but the provision does not give any power to make correction/clarification of order passed by the Court---Provision relating to correction/clarification of order is S.369, Cr.P.C. and not S.561-A, Cr.P.C.

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

----Ss. 369 & 561-A---Review of order---Jurisdiction of High Court--­Scope---Correction/clarification of order---High Court in earlier petition passed an order whereby the proceedings in private complaint filed by the petitioner were quashed---Application was moved under S.561-A, Cr.P.C. for clarification of the order passed by the High Court in the earlier petition---Validity---Relevant provision in this behalf is S.369, Cr.P.C. and not S.561-A, Cr.P.C.---High Court could not review its own order passed in criminal jurisdiction and the application for clarification of the order passed by the Court was not maintainable as the Court had become functus officio after it had passed and signed the order.

Dildar v. Safdar and 2 others 1990 PCr.LJ 158; Kaura v. The State and others 1983 SCMR 436; Shahkot Bus Service, Shahkot v. The State and others 1969 SCMR 325; Fazal Haq v. The State PLD 1982 Lah. 452; Muhammad Shafique and others v. Abdul Hayee and others 1987 SCMR 1371; Abid Ali and another v. The State 1992 MLD 743; Ahmad Jan v. District and Sessions Judge and another PLD 1994 Quetta 1; Muhammad Ilyas Khan alias Lasi Khan v. The State 1991 PCr.LJ 90 and Zulfiqar Ali v. The State PLD 1984 Lah. 461 distinguished

Lala Ghansham DasBirala and others v. Suraj Bhan AIR 1940 Lah. 192; R.H. Brightling Manager American Express Co. (Inc.), Lahore v. Saeed Ahmad Choudhry 1968 PCr.LJ 1818; Syed Ali Hussain Jaffri v. Masood Jilani and others 1997 PCr.LJ 746; Maulana Muhammad Azam Tariq, M.N.A. v. Khurshid Ali and another 1996 PCr.LJ 119 and Juan Sullivan v. The State 1971 SCMR 618 ref.

Dr. Z. Babar Awan for Petitioner (in Criminal Miscellaneous No. 122/M of 2000) and for Respondent No. 2 (in Criminal Miscellaneous No. 65/Q of 1999).

Sardar Muhammad Ishaque Khan for Respondents (in Criminal Miscellaneous No. 122/M of 2000 and for Petitioners (in Criminal Miscellaneous No. 65/Q of 1999).

Date of hearing: 3rd March, 2000.

2001 P Cr.-L J 235

[Lahore]

Before Muhammad Akhtar Shabbir, J

GHULAM DASTGIR and another---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 495/B of 2000, decided on 14th March, 2000.

Criminal Procedure Code (V of 1898)--

----S. 497---Penal Code (XLV of 1860), Ss. 394/412---Qanun-e-Shahadat (10 of 1984). Art. 22---Bail, grant of---Failure to hold identification parade--­Unexplained delay of three days in lodging of F.I.R.---Accused persons were students and according to school certificate one of the accused persons was less than 16 years of age---Where amount of Rs. 90 had been recovered from the accused persons and no identification parade was held, no useful purpose would be served in detaining the accused in jail, as guilt of the accused persons was yet to be determined by the Trial Court after recording of prosecution evidence---Bail was allowed in circumstances.

Altaf Ibrahim Qureshi for Petitioners.

Raja Sultan Khurram for the Complainant.

Tariq Usman Joiya for the State.

Date of hearing: 14th March, 2000.

2001 P Cr. L J 239

[Lahore]

Before Raja Muhammad Sabir, J

ABDUL AZIZ---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 111 -B of 1999/BWP, decided on 7th June, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/380/411---Bail, grant of---Further inquiry---Night time occurrence---Implication of accused on supplementary statement---Such statement was' recorded on the evidence of chance witnesses and no specific role was attributed to the accused---No positive report of the expert was available on record for the time being connecting pistol recovered from the accused and the empties recovered from the spot---Accused was in judicial lock-up for more than a year and was no longer required by the police---Accused was neither a previous convict nor hardened criminal---Case of the accused being that of further inquiry, bail was allowed.

Syed Jamil Anwar Shah for Petitioner.

Khaleeq Ahmad Chohan for the State.

2001 P Cr. L J 241

[Lahore]

Before M. Javed Buttar and Ali Nawaz Chowhan, JJ

Rana AWAIS and others---Petitioner

Versus

S.H.O. POLICE STATION PEOPLE’S COLONY, FAISALABAD and others---Respondent

Criminal Miscellaneous No. 216/Q of 2000, decided on 7th November, 2000.

(a) Penal Code (XLV of 1898)---

----Ss. 324/337-H(2)/427/148/149---Criminal Procedure Code (V of 1898), Ss. 345 & 561-A---Quashing of F.I.R.---F.I.R. was sought to be quashed on the sole ground that the offences involved therein were compoundable under the law and had been actually compounded by the complainant and the police, therefore, could not proceed any further under the law, meaning thereby that the police had been rendered incapable of submitting the challan before the Trial Court on the basis of said compromise---Validity---No compromise admittedly had taken place before a Court of law, but only during the stage of investigation before the police---Sections 324 & 337-H, P.P.C. having been included in Table 2 of S.345(2), Cr.P.C., the same could only be compounded with the permission of the Court after the submission of a report under S.173, Cr.P.C.---Prosecution, therefore, must be pending before the Court before a composition could be allowed---Any arrangement between the parties before the prosecution of the case having started was an ineffective compromise and would remain suspended until sanctioned by the Court---Police, therefore, could proceed further with the matter while placing the challan before the Trial Court and then the stage would come for the accused for asking permission for compromise---Petition for quashing of F.I.R. dismissed accordingly.

Naurang Rai v. Kidar Nath and another 1928 Cr.LJ 29; M.S. Ponnusamy Ayyar's case 1938 Cr.LJ 39; AIR 1937 Mad. 825; AIR 1968 All. 394; AIR 1956 Nag. 161; AIR 1937 Nag. 114 and AIR 1966 Mys. 53 ref.

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

----S. 345(2)---Offences compoundable with the permission of the Court--­Cases falling under S.345(2), Cr.P.C. can only be compounded when prosecution regarding those cases is pending before a competent Trial Court and any compromise outside the Court is of no value unless it has been sanctioned by a Court as envisaged in column No. 3 of S.345(2),. Cr.P.C.

Naurang Rai v. Kidar Nath and another 1928 Cr.LJ 29; M.S. Ponnusamy Ayyar's case 1938 Cr.LJ 39; AIR 1937 Mad. 825; AIR 1968 All. 394. and AIR 1956 Nag. 161 ref.

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

----S. 345(2)---Offences compoundable with the permission of the Court--­Duty of Court---Law casts a duty on a Magistrate or a Sessions Court empowered to sanction a composition to decide whether or not the Court should allow the compromise---Court while granting such permission should exercise sound and reasonable discretion and the same is not to be granted as a matter of course.

AIR, 1956 Nag. 161; AIR 1937 Nag. 114 and .AIR 1966 Mys. 53 ref.

Muhammad Hanif Saleemi for Petitioners.

A.H. Masood for the State.

2001 P Cr. L J 248

[Lahore]

Before Malik Muhammad Qayyum and Syed Zahid Hussain, JJ

SIKANDAR HAYAT KHAN---Petitioner

Versus

THE STATE and 2 others---Respondents

1 of 2000, decided on 12th June, 2000, Control of Narcotic Substances Act (XXV of 1997)---

----S. 9---Customs Act (IV of 1969), S.156(1)---General Clauses Act (X of 1897), S.26----Criminal Procedure Code (V of 1898), S.403---Constitution of Pakistan (1973), Arts. 199 & 13---Constitutional petition---Quashing of proceedings---Two trials for the same offence---Petitioner was charged for smuggling of narcotics and was tried by Special Judge Customs---Trial before Special Judge under the Control of Narcotic Substances Act, 1997, was initiated subsequently on the same occurrence---Second trial was barred in view of Art. 13 of the Constitution as also under S.26 of General Clauses Act, 1897, and 5.403, Cr.P.C.---Proceedings pending before the Special Judge Court Narcotics were quashed in circumstances.

Sabir Aziz v. Sessions Judge, Lahore 2000 PCr.LJ 204 fol.

N.A. Butt for Petitioner.

Ch. Muhammad Ashraf, A.A.G. and Khan Muhammad Virk for Respondents.

Date of hearing: 12th June, 2000.

2001 P Cr. L J 250

[Lahore]

Before Dr. Munir Ahmad Mughal, J

Malik MUNIR HUSSAIN ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.87 of 2000, heard on 22nd May, 2000.

(a) Prevention of Corruption Act (II of 1947)---

----S. 5---Penal Code (XLV of 1860), S.161---Criminal Procedure Code (V of 1898), Ss.233 to 239---Joint trial---Permissibility---Requirements---­Offence under S.5 of the Prevention of Corruption Act, 1947, is a distinct and separate offence from the offence under S.161, P.P.C. and if both the offences form part of the same transaction, their trial can be held at the same time under the provisions of Ss.233 to 239, Cr.P.C.

Akhtar Hassan Khan v. The State PLD 1967 Lah. 923 ref.

(b) Prevention of Corruption Act (II of 1947)---

----S. 5---Penal Code (XLV of 1860), S.161---Offences do not overlap each other---Offence under S.161, P.P.C. is a species of and is included in the offence under S.5(2) of the Prevention of Corruption Act, 1947---Both these offences can co-exist and one will not be considered as overlapping the other.

(c) Prevention of Corruption Act (II of 1947)---

----S. 5(2)---Penal Code (XLV of 1860), S.161---Trial of accused---Accused may be charged under either or both the sections, but he cannot be punished more than once for the same offence.

Muhammad Iqbal v. Muhammad Ramzan and 2 others 1974 SCMR 199 ref.

(d) Prevention of Corruption Act (II of 1947)---

----S. 5(2)---Penal Code (XLV of 1860), S.161---Appreciation of evidence--­Plea taken by accused that the amount recovered from him had been given by the complainant to him as help was not plausible---Said amount of Rs.5,000 was proved on record by the evidence of eye-witnesses to have been received by the accused as illegal gratification and for no other purpose---Conviction of accused was maintained in circumstances---Accused, however, had faced the agony of the protracted litigation of five years and his sentence of two years' R.I. was, therefore; reduced to the imprisonment already undergone by him.

Akhtar Hassan Khan v. The State PLD 1967 Lah. 923 and Muhammad Iqbal v. Muhammad Ramzan and 2 others 1974 SCMR 199 ref.

N.A. Butt for Appellant.

Kazim Iqbal Bhangoo for the State.

Date of hearing: 22nd May, 2000.

2001 P Cr. L J 261

[Lahore]

Before Khawaja Muhammad Sharif, J

Haji KHAWAR SALEEM and 2 others---Petitioners

versus

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

Criminal Miscellaneous No. 1778/H of 2000, decided on 6th November 2000.

Criminal Procedure Code (V of 1898)---

----S. 491---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) S.16---Habeas corpus petition---Arrest of the detenu was not shown in the Daily Diary Register of the police station ---Detenu was, however, named in the F.I.R. registered against him on 2-11-2000 for an occurrence having taken place on 23-10-2000---Two versions had come on record, one from the side of the detenu and the other from the police---Protective bail, in circumstances, was allowed to the detenu (accused)---Legal action was directed to be taken against the Police Officer found to be guilty in arresting the detenu on 30-10-2000 and keeping him in illegal confinement till the raid of the bailiff---Petition was disposed of accordingly.

N.A. Butt for Petitioner.

2001 P Cr. L J 266

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD NASRULLAH KHAN---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous Application No.5961/B of 1999, decided on 8th November, 1999.

(a) 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, grant of---Accused was caught red-handed with tainted money---Raiding Magistrate as well as witnesses of raid and recovery had no background of ill-will or bitterness against accused for falsely implicating him in the case---Accused could not point out any grudge nourished against him by complainant for levelling serious allegation of corruption against him---Investigation against accused having been concluded and the challan already prepared, Investigating Agency felt convinced of the guilt of accused---Prima facie reasonable ground existed to believe involvement of accused in the offences---Bail could not be allowed to accused in circumstances.

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

----S. 497(1)---Prevention of Corruption Act (II of 1947), S.5(2)---Penal Code (XLV of 1860), S.161---Bail, grant of---Principle---Offences in F.I.R. against accused, though did not attract prohibitory clause contained in S.497(1), Cr.P.C. but it was not a universal principle that in all such cases bail must always be granted.

M.A. Zafar for Petitioner.

Muhammad Ramzan Chaudhry for the Complainant.

Obaid-ur-Rehman Bukhari for the State.

2001 P Cr. L J 284

[Lahore]

Before Dr. Munir Ahmad Mughal, J

MAZHAR FAREED---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1765/B of 2000, decided on 24th August, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---Bail, grant of---Unexplained delay in lodging F. I. R. ---Medical examination of the victim after 14 days of occurrence ---F.I.R. was registered after an unexplained delay of 12 days and the medical examination was conducted two days after the registration of the F.I.R.---Accused was declared innocent in the last investigation and he was in the judicial lock-up for the last five months--- Bail was allowed in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Qazi Yaqub Ayaz for the State.

Date of hearing: 24th August, 2000.

2001 P Cr. L J 288

[Lahore]

Before Khalil-ur-Rehman Ramday, J

MUHAMMAD MANSHA---Petitioner

versus

Mst. HAMIDAN BIBI and another---Respondents

Criminal Miscellaneous No. 1017/BC of 2000, decided on 25th September, 2000.

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

----S. 497(5)---Penal Code (XLV of 1860). Ss.302 & 109/34---Bail, cancellation of---Filing false certificate---Two bail applications were filed one after the other before two different Benches in the same High Court--­Bail was granted in the subsequent application while the earlier application was pending before other Bench of the same High Court---Effect---Grant of bail to the accused had been manoeuvred through a fraudulent act of cheating and by misleading the High Court with a false certificate---Release of the accused was ill-gotten gain and sending her back to jail would not be as a matter of punishment to the accused for being a party to the fraud but the same would be the returning the benefit which had been secured for the accused through illegal and deceitful means---Bail granted to the accused was recalled.

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

----S. 41---Professional misconduct---Filing of false certificate in the High Court---Suppression of facts---Filing of second bail application in High Court while the earlier application was pending before another Bench of the same High Court---Accused was allowed bail in the subsequent application which was a verbatim copy of the earlier application pending before the other Bench---High Court issued notices to both the counsel in that regard and directed them to appear in person before the High Court---Show-cause notice regarding prima facie misconduct was also issued.

Riaz Ahmad for Petitioner.

Azam Sultan Suharwardi for Respondent.

Atta Mohy-ud-Din for the State.

Date of hearing: 25th September, 2000.

2001 P Cr. L J 295

[Lahore]

Before Muhammad Nawaz Abbasi, J

THE STATE---Petitioner

Versus

GHULAM RASOOL and another---Respondents

Suo motu Criminal Miscellaneous No.3508/BC of 2000, decided on 4th August, 2000.

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

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/148/149---Bail, cancellation of ---Suo motu notice by High Court, consequences of---Grant of bail before conclusion of investigation---Propriety---Bail after arrest-- Considerations---Accused were allowed post-arrest bail by the Trial Court on 14-6-2000 when they were arrested on 5-6-2000 after dismissal of their pre-arrest bail by the same Court---Judge of the High Court during his visit to the Trial Court as Inspection Judge issued suo motu notice to the accused persons under the provision of S.497(5), Cr.P.C.---Validity---Accused persons being members of unlawful assembly would not be ignorant about the consequences of Lalkara raised by them---Was difficult to suggest at bail stage that the accused persons were empty-handed and would not have common object to form unlawful assembly or conscious knowledge to commit the crime---Accused persons were allowed bail at an early stage of investigation without there being an opinion given either by the police or by the Court qua the extent of liability of the accused persons to bring their case within the ambit of S.497(2), Cr.P.C.---In absence of forming such opinion on the basis of result of investigation, the Trial Court was not supposed to make an observation which could affect the result of investigation---Accused persons were allowed after arrest bail shortly after their arrest without change of the circumstances under which they were refused pre-arrest bail a few days earlier---Despite the fact that considerations for grant of bail before arrest and bail after arrest were different, the Trial Court at the time of disposal of such application under S.497, Cr.P.C. had to attentively consider the nature of accusation, the role assigned to an accused person and the evidence in the hands of prosecution in support thereof---Accused persons were facing murder charge and were wrongly allowed the concession of bail by the Trial Court before the conclusion of investigation---Bail allowed to the accused persons was recalled in circumstances.

Muhammad Haroon and another v. The State 1994 SCMR 2161 and Muhammad Sultan v. The State 1999 PCr.LJ 1218 ref.

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

----Ss. 497 & 498---Bail, grant of---Pre-arrest bail and post-arrest bail--­Considerations---Considerations for grant of pre-arrest bail are different from those of post-arrest bail---No bar exists for the Courts to entertain application under S.497, Cr.P.C. and grant bail to accused on any ground at any stage of the case---Exercise of such power must not be uncontrolled end must be used in accordance with the settled principles for grant and refusal of bail and the Courts while exercising such power must not overlook the judicious considerations.

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

----S. 497(2)---Bail, grant of---Further inquiry---Prerequisite---Court must be satisfied on the basis of opinion expressed by police or the material placed before it that there are reasonable grounds to believe that the accused is not guilty of offence punishable with death or with imprisonment for life or with imprisonment of ten years, before bail is allowed under S.497(2), Cr.P.C.

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

----Art. 9---Liberty of persons---Guarding of such right---Role of Courts--­Scope---Liberty of a person, under the Constitution is guarded by the Courts but the same is always subject to law---Such right is to be protected in the light of the law under which the liberty of the person has been curtailed.

M. Bilal Khan, Addl. A.-G. for the State.

Ch. Muzammal Khan for Respondents.

Ch. Muhammad Ali for the Complainant.

Date of hearing: 4th August, 2000.

2001 P Cr. L J 303

[Lahore]

Before Dr. Munir Ahmad Mughal, J

,MUHAMMAD RAFIQUE QURESHI---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.630 of 1999, decided on 6th June, 2000

Penal Code (XLV of 1860)---

--S. 161---Illegal gratification---Solitary statement of complainant--­Affidavit qua non-prosecution of case by complainant---Accused was convicted on the solitary statement of the complainant whereas the complainant had already filed affidavit to the effect that he did not want to pursue the case in the Court---Trial Court convicted the accused for taking illegal gratification and sentenced him to six months' imprisonment--­Validity---In face of the affidavit of the complainant showing that he would not pursue the criminal case against the accused and the fact that there was no independent witness of giving the bribe money by the complainant to the accused, the charge against the accused was not proved---Held, bribe giver was also an accomplice in paying the bribe, his solitary statement as an accused person could not be made the basis of conviction of the accused--­Time, date, place and the person who witnessed the alleged giving of the bribe were all missing in the evidence, prosecution had failed to prove the charge against the accused---Conviction and sentence passed by the Trial Court were set aside.

Ch. Ghulam Hussain for Appellant.

A.H. Masood for the State.

Date of hearing: 6th June, 2000.

2001 P Cr. L J 309

[Lahore]

Before Raja Muhammad Sabir, J

Mst. BASHIRAN and 2 others---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No.760/B of 2,000, decided on 19th April, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/13/14/18---Bail, grant of---Plea of valid Nikah---Case of further inquiry---Accused persons were arrested by the police in a raid conducted at the house of the accused persons on the allegation of running a brothel house---Accused persons produced Nikahnamas in their support arid the same were proved during investigation---Case of accused persons being that of further inquiry, bail was allowed.

Altaf Ibrahim Qureshi for Petitioners.

Tariq Murtaza Khan Malezai for the State.

Date of hearing: 19th April, 2000.

2001 P Cr. L 1314

[Lahore]

Before Syed Zahid Hussain, J

MUHAMMAD SIRDAR KHAN and 3 others---Petitioners

versus

COLLECTOR OF CENTRAL EXCISE AND LAND CUSTOMS, LAHORE and 2 others---Respondents

Writ Petition No.4174 of 1983, heard on 26th October, 2000.

Customs Act (IV of 1969)---

----Ss. 179-A & 156(1)(89)---Provisional Constitution Order (1 of 1981), Art.9---Constitutional petition---Accused after having been convicted by the Special Court under S.156(1)(89) of the Customs Act, 1969, had been acquitted in appeal by the Special Appellate Court and the matter had attained finality---Personal penalty, however, was imposed on the accused by the department with the confiscation of the goods and the Truck which was upheld up to the level of the Government in revision filed by the accused which orders had been impugned through the Constitutional petition--­Validity---Section 179-A of the Customs Act, 1969 was in the field on 3-12-1978 when the incident had taken place and was repealed later on 28-6-1979---Said section had given supremacy to the verdict of the Special Judge or the Special Appellate Court over the orders passed by the Authorities in adjudication proceedings which had been made subject to the decision of the Special Court and of Special Appellate Court in appeal or revision, if any---Date of commission of the offence and commencement of prosecution was relevant qua the applicability of S. 179-A of the Customs Act and its repeal, therefore, did not make any difference---Impugned orders passed by the Authorities in adjudication proceedings were consequently declared to be without lawful authority and of no legal effect.

Government of Pakistan through Secretary, Finance, Islamabad and others v. Abdul Majeed 1997 SCMR 348; Federal Government of Pakistan and others v. Muhammad Sarwar PLD 1989 SC 377 and Abdul Hamid and others v. State 1988 PCr.LJ 438 ref.

Zahir Ahmad Khan for Petitioners.

Khan Muhammad Virk for Respondents.

Date of hearing: 26th October, 2000.

2001 P Cr. L J 320

[Lahore]

Before Khawaja Muhammad Sharif, J

QAISER IQBAL---Petitioner

versus

THE INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and 3 others---Respondents

Writ Petition No.21300 of 1999, decided on 18th October, 2000.

Criminal Procedure Code (V of 1898)---

----S. 156---Constitution of Pakistan (1973), Art.199---Constitutional petition---Successive transfers of investigation---Validity---Four investigations had already taken place in the case on the request of the accused---Inspector-General of Police by means of the impugned order had directed reinvestigation for the fifth time of the case by Superintendent of Police (Crimes Branch)---No sufficient reasons had been given by the Inspector-General in his order for transfer of investigation---Successive transfers of investigation was deprecated by High Court---More than two years had already passed, but the trial of the case had not so far commenced---Impugned order for transfer of investigation was quashed in circumstances and the Constitutional petition was accepted accordingly.

Hasnat Ahmad Khan for Petitioner.

Munir Ahmad Bhatti for Respondents.

Jahangir Wahlah, A.A.-G.

2001 P Cr. L J 323

[Lahore]

Before Iftikhar Ahmad Cheema, J

.MUHAMMAD GULZAR KIANI---Petitioner

Versus

Dr. ASHFAQ AHMAD and 3 others---Respondents

Criminal Miscellaneous No.447/BC of .2000, decided on 1st November, 2000:

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.408/506---Cancellation of pre­-arrest bail---Deep-rooted enmity existed between the parties---Documents available on the file did not prima facie, prove misappropriation of funds by the accused beyond any reasonable doubt ---F.I.R. had been lodged after an inordinate delay---Commission of offence under S.408, P.P.C. by the accused, therefore, appeared to be a mere allegation---No time and place of the alleged threats was mentioned in the F.I.R. which- were allegedly given three days prior to the making of application to the police and such delay was not even plausibly explained---Sessions Court had allowed pre-arrest bail to accused on cogent and convincing grounds and the impugned order did not suffer from any illegality---Petition for cancellation of pre-arrest bail allowed to accused was consequently dismissed.

Malik M. Aziz-ud-Din Ahmad for Petitioner.

Ghufran Khurshid Imtiazi for Respondents Nos. 1 to 3.

Ch. Aftab Ahmad Gujjar for the State.

2001 P Cr. L J 327

[Lahore]

Before Iftikhar Hussain Chaudhry and Zafar Pasha Chaudhry. JJ

BASHARAT alias BAO---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 194 and Murder Reference No. 88 of 1995, decided on 25th January, 2000.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Defence plea on the face of it appeared to be false, rather preposterous---Eye-witnesses were natural witnesses of the occurrence and had supported each other on all material points---Ocular testimony was corroborated by medical evidence, positive report of Forensic Science Laboratory and the evidence of motive--­Conviction of accused was consequently maintained---Murder, however, was neither pre-planned nor pre-meditated and appeared to be an accidental incident between the accused and the complainant party---Accused had fired a single shot which proved to be fatal and he did not repeat the same and, thus, had not acted in a cruel and gruesome manner---Sentence of death awarded to accused by Trial Court was converted to imprisonment for life in circumstances---Amount of compensation was, however, enhanced.

M.A. Zafar for Appellant.

Khalid Mahmood for the State.

Date of hearing: 25th January, 2000.

2001 P Cr. L J 335

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD YOUSAF and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No. 1126 of 1998, heard on 20th October, 2000.

Penal Code (XLV of 1860)---

----S. 302(c)---Appreciation of evidence---Prosecution version mentioned in the F.I.R. was not in line with the post-mortem report---Eye-witnesses who were father and first cousin of the deceased were not the residents of the place of occurrence and had no business to be present at the. spot at the relevant time---No crime-empty was recovered from the place of incident--­Ocular testimony was not corroborated by medical evidence or evidence of recovery---Not necessary that in cases where no enmity exists between the parties the witnesses would not tell the truth---Motive had been disbelieved by the Trial Court---F.I.R. appeared to have been lodged after due deliberation and consideration---Accused were acquitted on benefit of doubt in circumstances.

M.A. Zafar for Appellants.

Abdul Qayyum Anjum for the State.

Ch. Munawwar Hussain Chauhan for the Complainant.

Date of hearing: 20th October, 2000.

2001 P Cr. L J 340

[Lahore]

Before Khawaja Muhammad Sharif, J

NASEER-UD-DIN---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 142/J of 2000, heard on 2nd November, 2000.

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

----S. 302---Post-mortem report ---Value---Post-mortem examination cannot be taken into consideration to corroborate the ocular account in circumstances.

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

----S. 302---Criminal Procedure Code (V of 1898), S.103---Recovery proceedings---Violation of provisions of S.103, Cr.P.C.---Effect---Recovery witness produced by prosecution was not resident of the place from where the recovery was effected---Effect---Recovery proceedings being violative of S.103, Cr.P.C. could not be believed.

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

----S. 302---Appreciation of evidence---Benefit of doubt---Conviction on capital charge---Blind murder---Accused was charged with murder of his father---Occurrence was not witnessed by any one---Two Investigating Officers had declared the accused innocent---Witness of the occurrence was step-sister of the accused and presence of the witness in the house of the deceased at mid-night was doubtful---No person could be convicted on the capital charge unless the evidence produced by prosecution was of very strong nature and had come from unimpeachable source---Evidence of prosecution was shaky and not trustworthy---Prosecution had failed to establish its case against the accused beyond any shadow of doubt--­Conviction and sentence awarded by the Trial Court was set aside in circumstances.

Naveed Anjum for Appellant (at State expenses).

Muhammad Sharif Cheema for the State.

Date of hearing: 2nd November, 2000.

2001 P Cr. L J 345

[Lahore]

Before Khawaja Muhammad Sharif, J

NAEEM ABBAS ---Petitioner

versus

MUBASHAR SHAH and others---Respondents

Criminal Miscellaneous No.4206/CB of 2000, decided on 19th October. 2000.

Criminal Procedure Code (V of 1898)---

----Ss. 497(5) & 227---Penal Code (XLV of 1860), Ss.302/337-A(i)(ii)/34 & 322---Bail, cancellation of---Alteration of charge---Opinion of District Attorney---Successive bail applications---Accused was charged initially with S.302, P.P.C. and was found guilty by two Investigating Officers including Senior Superintendent of Police---Trial Court dismissed the earlier bail application,of the accused for the reason that he was present at the place of occurrence, specific role was attributed to him and he was found guilty by the Investigating Officers---Charge against the accused was subsequently altered from S.302, P.P.C. to 5;322, P.P.C. on the recommendation of District Attorney---Subsequent bail application was allowed by the Court on the ground that charge had been altered and offence under S.322, P.P.C. did not fall in the prohibitory clause of S.497(1), Cr.P.C.---Validity---District Attorney could not comment on such aspect of the case that it was not a case where intention of the accused was not to kill the deceased and case of the accused fell under S.322, P.P.C.---When there was no change in the circumstances when earlier.bail application was dismissed and the subsequent application was allowed and provisions of S.302, P.P.C. were applicable, bail granted to the accused was recalled.

Naseer-ud-Din Khan Nayyer for Petitioner. Asghar Ali for the State.

Muhammad Taqi Khan and Ch. Naseer Ahmad Bhutta for the Complainant.

2001 P Cr. L J 355

[Lahore]

Before Khawaja Muhammad Sharif, J

SALAMAT ALI ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.150/J of 2000, heard on 3rd November, 2000.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---Two versions of the occurrence---Grave and sudden provocation---Accused and deceased were real brothers and F.I.R. was got registered by father of the both---Prosecution version of the case was that murder was committed on account of dispute over money borrowed by the accused from the deceased--­Plea of grave and sudden provocation was raised by accused---Allegation in the defence version was that the deceased had tried to commit Zina-bil-Jabr with minor daughter of the accused which was supported by the medical evidence---Effect---When both the versions were put in juxtaposition, the version put forward by the accused was more plausible and convincing--­High Court accepted the defence version and altered conviction of the accused from S.302(b), P.P.C, to S.302(c), P.P.C. and reduced term of imprisonment from life to seven years in circumstances.

Ilyas Jigran for Appellant (at State expenses).

Badar Munir for the State.

Date of hearing: 3rd November, 2000.

2001 P Cr. L 1363

[Lahore]

Before Khawaja Muhammad Sharif, J

Mehr MUHAMMAD HAFEEZ---Petitioner

versus

D.I.-G. and others---Respondents

Criminal Miscellaneous No.1108/11 of 2000, decided on 26th July, 2000.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus---Tampering with police record ---Non­-cooperation of police with bailiff deputed by High Court---Presence of detenus in police station at the time of raid of bailiff---Four persons were shown to be arrested by police in a case whereas none out of them was named in the F.I.R.---Only two persons were recovered by the bailiff at the time of raid ---Detenus recovered were subjected to police torture whereas the other two persons were allegedly released by the police after receiving illegal gratification---Report of the bailiff showed that the police record was tampered with by the concerned police officials to frustrate the order of High Court and two persons were released by police allegedly after having illegal gratification---Effect---Police officials had misused the official position and in a way it was a device to extract money from innocent persons---High Court directed that copy of the petition, report of the bailiff, copy of medico­legal report, statements of detenus, the interim orders and the final order passed by High Court, be sent to the high officials of Police Department to inquire into the matter and if the police officials, who were named as accused by the detenus were found to be guilty, departmental action should be taken against them ---Detenus were ordered to be set at liberty in circumstances.

Nazir Ahmad Ghazi for Petitioner.

2001 P Cr. L J 370

[Lahore]

Before Muhammad Nawaz Abbasi, J

MUHAMMAD MUMTAZ ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.141 and Criminal Revision N0.54 of 1998, heard on 30th May, 2000.

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

----Ss. 302(b)/34---Appreciation of evidence---Fatal injury, undoubtedly, was attributed to co-accused but the presence of accused at the spot with fire­arm and its effective use was an overt act proving his common intention--­Plea of alibi taken by accused was not established through any evidence arid mere general assertion of being out of country at the time of occurrence, was not sufficient to undo the evidence of his abscondence---Non-production of the sole available eye-witness of the occurrence by the prosecution whose deposition was very important for just decision of the case, was not fair--­Failure of the prosecution to place before ,the Court such material and important evidence amounted to deprive the Court from arriving at correct decision and also caused prejudice to the accused in making his defence properly---Court, in circumstances, was duty bound to call such person as a Court-witness whose evidence was important and essential for just decision of the case---Conviction and sentence of accused were . set aside in circumstances and the case was remanded to Trial Court for retrial and fresh decision after recording the statement of the said eye-witness within a specified period.

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

----Ss. 302(b)/34 --- Appreciation of evidence --- Abscondence --- Evidentiary value ---Abscondence of accused by itself is not sufficient to convict an accused, but it is always a strong piece of corroborative evidence of ocular and circumstantial evidence if he remains fugitive for a long time without any plausible and reasonable explanation.

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

----Ss.-302(b)/34---Appreciation of evidence ---Abscondence of accused--­Effect---Fugitive from law while losing some of normal rights granted by the procedural and substantive law also disentitles himself to the grant of any discretionary relief and consequently Court is not supposed to act in aid of such person and exclude the direct evidence from consideration on the strength of technical objections and pleas.

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

----S. 540---Summoning of material witness---Power under S.540, Cr.P.C. available with the Court is not necessarily to be invoked on an application of the prosecution or defence, rather it is mandatory for the Court to summon and examine or recall and re-examine any person if his evidence appears to be essential for just decision of the case.

Shaukat Aziz for Appellant.

Muhammad Ayub Kiani for the State.

Malik Anwar-ul-Haq for the Complainant.

Date of hearing: 30th May, 2000.

2001 P Cr. LJ 376

[Lahore]

Before Iftikhar Hussain Chaudhry and Dr. Munir Ahmad Mughal, JJ

THE STATE---Appellant

versus

MUHAMMAD IQBAL and 3 others---Respondents

Criminal Appeal No.897 of 1988, heard on 1st November, 2000.

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

---Ss. 302/324/34---Criminal Procedure Code (V of 1898), S.417(1)--­Appeal against acquittal---Standard for assessing the judgment of Trial Court---Standard to be followed is whether a reasonable person could have arrived at the conclusion which was drawn by Trial Court--- "Reasonable person" does not mean a layman but a person such as a Judge or a Lawyer who is trained in carrying out critical analysis of evidentiary material and has the ability to device right conclusions therefrom according to law of the land.

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

----Ss. - 302/324/34---Criminal Procedure Code (V of 1898), S.417(1)--­Appeal against acquittal---Impugned judgment was palpably coloured, logic employed was defective, ratiocination was visibly strained and the trial Judge was found to be too eager to give undue benefit of minor factors to the accused ---F.I.R. was promptly lodged. containing the names of the accused with specific roles assigned to them as well as the names of the witnesses which lent considerable credence to the prosecution case---Presence of eye­witnesses at the spot was proved by the ambient circumstances of the case, promptitude of the F.I.R. and the natural manner in which they had testified at the trial---Non-mention by witnesses of one of insignificant injuries out of many could not by any stretch of imagination be considered as a contradiction in the ocular account and the medical evidence---Concept and institution of "Nian", a voluntary and free adjudication, was a far more powerful tool for dispute resolution having full societal acceptance and deserved proper accommodation in the justice system---Guilt of accused stood established even in the traditional manner of adjudication as well as by the investigatory evidence---Involvement of accused was satisfactorily proved by evidence on record who had butchered their enemy in front of a large number of people in an open space and their crime was harrendous and they could not be acquitted as done by Trial Court---Acquittal of accused was consequently set aside and they were convicted under S.302, P.P.C.--­Accused were quite young when their father was murdered and they had committed the offence to revenge that murder which must have haunted them for a long time---Lesser sentence of imprisonment for life was awarded to accused in circumstances with a fine of Rupees one lac each---Accused were acquitted twelve years back and they had enjoyed liberty for a long period---Sending the accused back to prison at such stage could not serve the societal need or interest of the complainant party---Sentence of imprisonment for life awarded to each accused was, therefore, directed to be reduced to imprisonment already undergone by him in case he made payment of fine by a specified date, otherwise the defaulting accused was to suffer the entire term of imprisonment with benefit of S.382-B, Cr.P.C.

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

---S. 302 Appreciation of evidence---Contradiction---Connotation---Contradiction in the ocular version of the incident and the medical evidence must be glaring to give its benefit to accused, since that would essentially show in ultimate analysis the non-presence of eye-witnesses at the scene of incident---Contradiction in medical evidence and ocular evidence would be considered to be glaring when the medical evidence would conclusively show that the deceased was done to death in a manner altogether different from the one claimed by the prosecution or the violence noticed on the dead body could not have resulted by weapons which were claimed to have been employed by the accused.

(d) Words and phrases---

Reasonable person" ---Meanings.

Salina Malik, Asstt. A.-G. for the State.

Asghar Ali for Respondent.

Date of hearing: 1st November, 2000.

2001 P Cr. L J 389

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD HUSSAIN and another---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No.1032/M of 2000/BWP, heard on14th November, 2(100.

Criminal Procedure Code (V of 1898)---

----Ss. 382-B & 561-A---Penal Code (XLV of 1860), S.302(b)---Extension of benefit of S.382-B, Cr.P.C.---High Court while commuting the sentence of death of accused to imprisonment for life had not considered the provisions of 5.382-B, Cr.P.C. nor "had given any reason for refusing its benefit to them---Accused, in circumstances, were entitled, to the benefit of S.382-B, Cr.P.C. and the same was extended to them accordingly.

Hakim Khan v. The State 1994 PCr.LJ 873; Ghulam Murtaza v. The State PLD 1998 SC 152 and Javed lqbal v. The State 1998 SCMR 1539 ref.

Ch. Abdul Ghaffar Bhutoa for Petitioners.

Ghazanfar Ali Khan for the State.

Date of hearing: 14th November, 2000.

2001 P Cr. L J 391

[Lahore]

Before Ch. Ijaz Ahmad, J

ZUBAIR AHMED and another---Petitioners

versus

S.H.O,CIVIL LINES, GUJRAT and 2 others---Respondents

Writ Petition No.7548 of 1990, heard on 23rd November, 2000.

Penal Code (XLV of 1860)---

----Ss. 420/468/471---Constitution of Pakistan (1973), Art. 199--Constitutional petition---Quashing of F.I.R.---Two competent forums (Wafaqi Mohtasib and Superintendent of Police) had awarded punishment to the respondent (S.H.O.) on account of his misconduct qua the arrest of accused and the said Police Officer, therefore, had got the impugned F.I.R. registered against the accused ---S.H.O. was not authorised to lodge the said F.I.R. in view of Notification No. SRO 913(1)86, dated 5th October, 1986, as the case qua customs matters must have been registered on the complaint filed by the competent person mentioned therein---Proceedings initiated against the accused were coram non judice, without lawful authority and mala fide ---F.I.R. was quashed in circumstances and the Constitutional petition was accepted accordingly.

Muhammad Haroon's case 1991 MLD 397; Jameel Khan's case 1990 PCr.LJ 1475; 1991 PCr.LJ 230; PLD 1949 PC 207; Adam's case PLD 1969 SC 446 and Agha Nadeem's case 1998 PCr.LJ 181 ref.

Mirza Naseer Ahmad for Petitioners.

Malik Akhtar H. Awan, A.A.-G. for the State

Date of hearing: 23rd November, 2000.

2001 P Cr. L J 395

[Lahore]

Before Sheikh Abdur Razzaq, J

ABDUL KARIM ---Petitioner

versus

THE SUPERINTENDENT, NEW CENTRAL JAIL, BAHAWALPUR and another---Respondents

Writ Petition No.3774 of 2000/BWP, decided on 28th September, 2000.

Penal Code (XLV of 1860)---

----Ss. 392/34---Constitutiqn of Pakistan (1973), Art.199---Constitutional petition---Special remissions in sentence, award of---Notification issued by the Federal Government and the Provincial Government had specifically disentitled a convict of an offence of dacoity and not of robbery---Accused had been convicted under Ss.392/34, P.P.C. which was not an offence of dacoity but of robbery and he, therefore, was entitled to the remissions granted by the Federal as well as the Provincial Governments vide Notifications issued from time to time---Superintendent of the Jail concerned was consequently directed to extend the special remissions in sentence of the accused---Constitutional petition was accepted accordingly.

Ch. Abdul Ghaffar Bhutta for Petitioner.

M.A. Farazi for the State.

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2001 P Cr. L J 403

[Lahore]

Before Bashir A. Mujahid, J

FAZLA and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.261 of.1995, heard on 26th November, 1999.

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

----Ss. 302, 318 & 319---Appreciation of evidence ---Qatl-e-Khata---Failure to produce independent witnesses---Day light occurrence which took place in the house of the complainant party situated in thickly populated area--­Murder was caused over a petty matter and no one from the locality came forward to support the prosecution witnesses---One of the accused persons was a child below the age of 12 years at the time of occurrence while the other. was below 16/17 years---Trial Court convicted both the accused persons and sentenced the child to 10 years' imprisonment and the other was sentenced for life---Validity---One of the prosecution witnesses stated to be injured during the occurrence was not medically examined---Place of occurrence was disputed as to whether the same was inside the house of the deceased or outside---In the absence of some independent witness of occurrence it could be inferred that the deceased received injury while he was present in his house---Accused himself having admitted the occurrence and the statement of the accused being more plausible, Trial Court had rightly convicted the accused---Occurrence being not an intentional murder to attract the provision of S.302, P.P.C. conviction of accused was altered to S.319, P.P.C. in circumstances.

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

----Ss. 83 & 302---Offence committed by child---Sentence---Offence having been committed by, a child of below 12 years of age he was acquitted.

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

----Ss. 319 & 323---Diyat money---Payment in instalments-=-Accused was not in a position to pay the amount immediately, High Court allowed the payment of Diyat money in three instalments.

Sardar Altaf Hussain Khan for Appellants.

M. Anwar-ul-Haq for the State.

Rana Khalid Mehmood for the Complainant.

Date of hearing: 26th November, 1999.

2001 P Cr. L J 408

[Lahore]

Before Tassaduq Hussain Jilani, J

ABDUL JABBAR---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.2080/B of 2000/MN, decided on 26th September, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.382/337-A(ii)(iii)/337-F(i)(v) (iii)/337-L(2)/148/149---Bail---Parties had previous enmity---No grievous injury was attributed to accused who, at the time of occurrence, was armed with a "Kassi" which was an implement ordinarily used by the villagers for tilting and irrigating the land---Question of the guilt of accused in the circumstances needed further probe---Offence alleged against the accused was not hit by the prohibitory clause of S.497(l), Cr.P.C.---Accused was enlarged on bail in circumstances.

Mian Fazal Rauf Joiya for Petitioner.

Arshad Ali Chauhan for the Complainant.

Muhammad Jbraheem Farooq for the State.

2001 P Cr. L J 428

[Lahore]

Before Ch. Ijaz Ahmad, J

ALI HASSAN ---Petitioner

versus

THE STATE and 2 others---Respondents

Criminal Miscellaneous No. 117/Q of 2000, decided on 3rd October, 2000.

Criminal Procedure Code (V of 1898)---

----Ss. 516-A & 561-A---Custody and disposal of disputed car pending trial in the case---Orders passed by the Courts below regarding "Supurdari" of the car in dispute were set aside meaning thereby that the applications filed by both the parties were deemed to be pending before the Magistrate who was directed to depide the same in terms of the principle laid down by the Supreme Court in Asif Latif Bajwa's case (1994 SCMR 70)---Parties were to apply jointly to the- Court for getting the car in dispute sold and the sale proceeds were directed to be invested in the Khas Deposit Certificates or in some profit bearing scheme of National Saving Centre---Party succeeding in Civil Court would be entitled to the sale proceeds and the profit accrued thereon---Petition was disposed of accordingly.

Muhammad Ramzan v. The State 1994 PCr.LJ 2148 and Mrs. Farhat Jabeen's case PLD 1981 Lah. 588 ref.

Asif Bajwa's case 1994 SCMR 70 rel.

Allah Bakhsh Gondal for Petitioner.

Ch. Abdul Majeed Kasuri for Respondent No.3.

2001 P Cr. L J 477

[Lahore]

Before Jawwad S. Khawaja, J

RAFIQ SHAH---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.24378 of 2000, decided on 20th December, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/364/201/34---Bail, grant of---Rule of consistency---Recovery of tractor-trolley---Trolley was used to remove dead body of deceased from place of occurrence---Accused was not owner of the tractor-trolley and the same was owned by the co-accused who had already been allowed bail---No items such as blood-stained earth or any weapon of offence had been recovered at the pointation of the accused--­Mere recovery of the tractor-trolley was not sufficient to disentitle the accused from the concession of bail---Accused was allowed bail in circumstances.

Ch. Abdul Ghaffar for Petitioner.

Ehsan Wyne for the Complainant.

Sher Muhammad Gujjar for the State.

2001 P Cr. L J 494

[Lahore]

Before Khalil-ur-Rehman Ramday and Asif Saeed Khan Khosa, JJ

UR-REHMAN and 2 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.353 and Murder Reference No. 135 of 1993, heard on 2nd August, 1999.

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

----Ss. 302/34, 306 & 308---Appreciation of evidence---Defence explanation of the occurrence was not reasonable---Eye-witnesses were not only natural witnesses of the occurrence but also independent witnesses of the same as defence had not brought anything on record to demonstrate any reason or motive on their part which could have prompted them to falsely implicate the accused in the occurrence---Ocular testimony had inspired confidence--­Accused were burdened with specific injuries inflicted by each one of them on the persons of the two deceased which were supported by medical evidence---One accused was not an adult at the time of occurrence and his conviction and sentence under Ss.302/34, P.P.C. were consequently set aside and instead he was sentenced to 14 years' R.I. under S.308, P.P.C. read with S.306, P.P.C. on two counts with the direction for the sentences to run concurrently and further he was directed to pay Diyat amounting to Rs.2,51,000 on two counts---Both the accused had murdered two young boys brutally acting callously in the matter of inflicting injuries on their persons--­Other accused, who was on adult at the time of occurrence, therefore, did not invoke any sympathy and his conviction and sentence of death were upheld accordingly.

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

----Ss. 302/34---Appreciation of evidence---Benefit of doubt---Accused was only alleged to have caught one deceased from his arms at the time of occurrence and he was not burdened with any injury on the bodies of the two deceased persons---In view of the injuries sustained by the deceased possibility could not be ruled out that the accused was not holding the deceased at the time of infliction, of injuries on his body---Benefit of doubt was extended to accused in circumstances and he was acquitted accordingly.

Mian Muhammad Bashir for Appellants.

Ch. Imtiaz Ahmad for the State.

M.A. Zafar for the Complainant.

Date of hearing: 2nd'August, 1999.

2001 P Cr. L J 516

[Lahore]

Before Dr. Munir Ahmad Mughal, J

AURANGZEB alias ZAIBI and another---Appellants

versus

THE STATE---Respondent

Criminal Appeal No. 1157 and Criminal Revision No. 561 of 1998, heard on 30th October, 2000.

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

----S. 12--Jurisdiction of Special Court---Special Court constituted under the Anti-Terrorism Act, 1997 can assume jurisdiction only when the weapon used in the offence is of the kind mentioned in the Schedule of the Act and the act has resulted in terrorism---Where any such ingredient is lacking, ordinary Court will have the jurisdiction and not the Special Court.

Mehram Ali v. The State PLD 1998 SC 1445 ref.

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

----Ss. 302(b)/34---Anti-Terrorism Act (XXVII of 1997), Ss.7 & 12--­Jurisdiction of Special Court---Weapon of offence used in the incident was not of the kind mentioned in the Schedule to the Act---Deceased being a school teacher was a public servant but he was murdered on account of civil litigation going on between the parties about demarcation of land and the case as such did not come under the definition of "terrorism" ---Special Judge, therefore, had no jurisdiction to try the case and the proceedings in the Special Court were coram non judice---Convictions and sentences of accused were consequently set aside and the case was remanded to Sessions Court for trial afresh in accordance with law.

Mehram Ali v. The State PLD 1998 SC 1445 ref.

Syed Zahid Hussain Bukhari for Appellants.

Sh. Shahid Hussain, Asstt. A.-G. for the State.

Syed Samar Hussain Shah for the Complainant.

Date of hearing: 30th October, 2000.

2001 P Cr. L J 523

[Lahore]

Before Karamat Nazir Bhandari, J

MANZOOR AHMAD and 2 others---Petitioners

versus

S.H.O. POLICE STATION FACTORY AREA, DISTRICT FAISALABAD and 2

others---Respondents

Writ Petition No. 6405 of 1990, heard on 21st November, 2000.

Penal Code (XLV of 1860)---

----Ss. 406/420/506/34---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F. I. R. ---Admittedly if the allegations made in the F.I.R. remained unrebutted, a case was made out---Police Officer, therefore, in registering the case had not acted in breach of S.154, Cr.P.C.---Contention was that the complainant had lodged the impugned F.I.R. to enforce a civil liability and counsel for the accused to prove this contention wanted to place on record some documents which were not permitted to be so placed by High Court, because it was not for the High Court to investigate whether an offence had been committed or not--­Investigation was the job of the Investigating Officer and High Court in exercise of its power of judicial review could compel him to do his job in accordance with law---Stifling investigation of offences was not in public interest---Investigating Officer was accordingly directed to complete the investigation of the case within two months---Constitutional petition was dismissed with the said observation.

M.A. Zafar for Petitioners.

Muhammad Amin Lone, Asstt. A.-G. (Punjab) for Respondents Nos. 1 and 3.

Shaukat Rafiq Bajwa for Respondent No.2.

Date of hearing: 21st November, 2000.

2001 P Cr. L J 546

[Lahore]

Before M. Javed Buttur, J

GHULAM HAIDER ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.427 of 1994, heard on 3rd November, 2000.

Prevention of Corruption Act (II of 1947)---

----S. 5(2)---Penal Code (XLV of 1860), S.161---Appreciation of evidence--­Sentence, reduction in---Tainted currency note was recovered from the pocket of the accused by the raiding party---Accused, police official, at the time of recovery in his statement did not take up the defence plea which he had taken at the trial and the same being an afterthought had been rightly, disbelieved by the Trial Court---Even otherwise, accused being a member of the disciplined force, a man in uniform, was not expected to pocket the money silently without asking as to why the same was being offered to him---Money having changed hands inside the police station, raiding Magistrate could neither hear the conversation nor actually see the passing of the money and non-hearing of the conversation and non-witnessing of the passing of the money by the raiding party was not fatal to the prosecution case and could not by itself entitle the accused for acquittal---Conviction of accused was upheld accordingly---Accused was likely to lose his job because of his conviction and if he was sent to jail again after six years of the suspension of his sentence, he could lose present source of his livelihood as well---Sentence of imprisonment of accused was reduced to imprisonment already undergone by him in circumstances.

Manzoor Hussain Shah v. The State 1978 PCr.LJ 885; Muhammad Aslam v. The State NLR 1992 Cr.LJ 545; Syed Nazakat Raza v. The State 1977 PCr.LJ 694; Ehtisham Abbas Kazmi v. The State 1993 PCr.LJ 1299; Naseer Ahmad v. The State 1993 PCr.LJ 299; Lad Khan v. The State 1992 PCr.LJ 1484; Muhammad Ashraf v. The State 1996 SCMR 181 and Mirza Fayyaz Baig v. The State 1994 PCr.LJ 2233 ref.

Ch. Muhammad Nawaz Sulehria for Appellant.

Ch. Ijaz Ahmad, Addl. A.-G. with Ch. Abdul Aziz for the State.

Date of hearing: 3rd November, 2000.

2001 P Cr. L J 565

[Lahore]

Before Zafar Pasha Chaudhary, J

IFTIKHAR HUSSAIN BALOCH---Petitioner

versus

DISTRICT MAGISTRATE, BHAKKAR and 6 others---Respondents

Writ Petition No. 10475 of 1999, decided on 9th October, 2000.

Criminal Procedure Code (V of 1898)---

----Ss. 494 & 492---Police Rules, 1934, Vol.3, Chap.27 R.4(2)---Penal Code (XLV of 1860), Ss.165-A/186/506/109/182/211---Constitution of Pakistan (1973), Art.199---Constitutional petition---Withdrawal from the prosecution by Inspector Legal, propriety of---Prosecuting Inspectors and Prosecuting Sub-Inspectors, in terms of sub-rule (2) of R.4 of the Police Rules, 1934, had been appointed as Public Prosecutors in the local areas specified therein---Law, thus, was clear and unambiguous with regard to the competence or authority of the Prosecuting Inspector to withdraw from the prosecution of the case which stood withdrawn with the consent of the Court---Constitutional petition was dismissed accordingly.

Mir Hassan v. Tariq Saeed and others PLD 1977 SC 451; Ramzan Ali v. D.M., Sargodha and others PLD 1983 Lah: 610; Zahid Hussain v. The Crown PLD 1954 Lah. 710; Muhammad Hanif and 4 others v. D.M., Bahawalpur PLD 1971 Lah. 574; Saad Shibli v. The State and another PLD 1981 SC 617 and Maqbool Ahmad Shaikh v. The State 2000 PCr.LJ 1442 ref.

Syed Zahid Hussain Bokhari for Petitioner.

Ijaz Hussain Gorcha for Respondent No.3

M. Bilal Khan, Addl. A.-G.

2001 P Cr. L J 570

[Lahore]

Before Muhammad Islam Bhatti, J

LAL KHAN and others---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No.2040/B of 1997, decided on 21st November, 1997.

Criminal Procedure Code (V of 1898)---

----S. 497(1), third proviso---Penal Code (XLV of 1860), S.324---Bail on ground of statutory delay---Accused were behind the bars for a continuous period exceeding one year and their trial had not yet been concluded---Record did not show that the accused were hardened, desperate or dangerous criminals or were involved in terrorism, nor the prosecution had made such claim---Accused were enlarged on bail in circumstances.

Talaat Farooq Sheikh for Petitioners.

Badar Munir Malik for the State.

2001 P Cr. L J 571

[Lahore]

Before Faqir Muhammad Khokhar, J

NASIR MEHMOOD---Petitioner

versus

MUHAMMAD TARIQ AYUB and another---Respondents

Criminal Miscellaneous No.4878/B/C of 1999, decided on 11th October, 1999.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss.302/34/109---Cancellation of bail---Accused was found guilty in successive police investigations--­Recovery of weapon of offence had been effected from the accused---Fatal injury by a pistol on the person of the deceased was attributed to accused--­Reasonable grounds, prima facie, were available to believe the accused being guilty of the offence falling within the prohibition contained in S.497(1), Cr.P.C.---Bail granted to accused by Sessions Court was cancelled in circumstances.

M.A. Zafar for Petitioner.

Muhammad Zubair Khalid for Respondent No. 1.

M. Siddique Khalid for the State.

2001 P Cr. L J 581

[Lahore]

Before M. Javed Buttur and Ali Nawaz Chawhan, JJ

NOOR KHAN---Petitioner

versus

JUDGE, SPECIAL COURT, ANTI—TERRORISM SARGODHA DIVISION, SARGODHA and another---Respondents

Writ Petition No. 18688 of 2000, heard on 21st November, 2000.

Penal Code (XLV of 1860)---

----Ss. 302/34---Anti-Terrorism Act (XXVII of 1997), Ss.23, 6, 7 & 8--­Constitution of Pakistan (1973), Art.199---Constitutional petition---Transfer of case to regular Court---Case related to murder due to the previous murder enmity and the deceased, a public servant, was not killed because he was a Patwari or because of the performance of his official duties as Patwari--­Reasoning of the Special Court that the case was triable by the said Court because the Patwari was killed when he was on duty was not sustainable as that would mean that when a public servant was killed while on duty, the case would be triable by Anti-Terrorism Court and when he- was killed during off duty hours it was not triable by it, Anti-Terrorism Act, 1997, did not create any such classification---Case even did not involve the element of terrorism acid had no nexus with the object of the said Act and its Ss.6, 7 & 8, as it was a simple case of murder due to previous murder enmity and was not committed in a manner which struck terror or created a sense of fear and insecurity in the people or in a section of people except in the ordinary sense of insecurity created at the time of commission of every crime ---Anti­-Terrorism Court, therefore, had no jurisdiction to try the case and High Court directed to send the case to the Court having plenary jurisdiction--­Constitutional petition was accepted accordingly.

Mehram Ali and others v. The Federation of Pakistan and others PLD 1998 SC 1445 ref.

Masood Mirza for Petitioner.

Malik Noor Muhammad Awan for Respondent No. 1.

Date of hearing: 21st November, 2000.

2001 P Cr. L J 593

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD IDREES---Petitioner

versus

THE STATE and 3 others---Respondents

Criminal Miscellaneous No.229/Q of 2000, heard on 6th December, 2000.

Penal Code (XLV of 1860)---

----S. 188---Criminal Procedure Code (V of 1898), Ss.195 & 561-A--­Quashing of F.I.R.---No Court on account of bar contained in S.195(1)(a), Cr.P.C. could take cognizance of an offence punishable under S.188, P. P. C. except on the complaint in writing of the public servant concerned or of some other public servant to whom he was subordinate---Where the Court was not competent to take cognizance of the offence after submission of the challan, the same could not be submitted in the Court ---F.I.R. registered under S.188, P.P.C. was quashed accordingly.

PLD 1975 Lah. 1315 and 1994 PCr.LJ 1223 ref.

Irshad Ahmad Qureshi for Petitioner.

Ch. Muhammad Hanif Khatana, Addl. A.-G. for Respondents Nos.2 and 3.

Date of hearing: 6th December, 2000.

2001 P Cr. L J 599

[Lahore]

Before M. Javed Buttur, J

Mst. SHAGUFTA SHAHEEN ---Petitioner

versus

MUHAMMAD ARIF KHAN NIAZI and 4 others---Respondents

Writ Petition No. 1476 of 2000, decided on 24th November, 2000.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Release of petitioner from Darul Aman---Petitioner was a 24 years old educated lady and was sui juris and she could not be lodged in Darul Aman against her wishes---Impugned orders of the Magistrate directing the lodging of the petitioner in Darul Aman against her wishes and keeping her there were consequently declared to be without lawful authority and were set aside---Detention of the petitioner in Darul Aman against her wishes being illegal and improper, she was directed to be set at liberty at once and allowed to go wherever she liked---Constitutional petition was allowed accordingly.

Mst. Sahi Bi v. Khalid Hussain and 6 others 1973 SCMR 577; Mir Muhammad v. The State and 4 others 1995 PCr.LJ 2085 and Mst. Nazneen v. Judicial Magistrate, Larkana 1999 MLD 1250 ref.

Nazeer Ahmad Ghazi for Petitioner.

Ijaz Ahmad Chaudhry, Addl. A.G.

Saeed Ashraf Warraich for the Complainant.

2001 P Cr. L J 603

[Lahore]

Before M. Javed Buttur and Ali Nawaz Chawhan, JJ

MUHAMMAD YOUNAS---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.297, Murder Reference No. 133 of 1994 and Criminal Revision No. 165 of 1995, heard on 17th October, 2000.

(a) Penal Code (XLV of 1860)-

----Ss. 302/34---Criminal Procedure Code (V of 1898), S.439---Revision petition against acquittal---Benefit of doubt---Accused had no motive or any grudge against the deceased for his murder---No recovery had been effected from the accused---Possibility could not be ruled out that the accused might have been roped in just to widen the net---Trial Court had rightly acquitted the accused on benefit of doubt---Revision petition for conviction of accused was dismissed accordingly.

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

----S. 302---Appreciation of evidence ---F.I.R. was promptly lodged--­Occurrence having taken place in broad daylight, mistaken identity of the culprit was not possible---Accused had the motive to remove the deceased from his way---Prosecution witnesses had no reason to falsely implicate the accused in the case or to substitute him for the real culprit---Medical evidence had supported the prosecution case against the accused---Ten months' abscondence of accused had also pointed towards his guilt and the explanation given by him in his statement recorded under S.342, Cr.P.C. was neither reasonable nor satisfactory---Documentary evidence brought on record by the defence had in no way weakened the prosecution case---No mitigating circumstance was available on the file in favour of accused to award him lesser punishment---Conviction and sentence of death of accused were confirmed in circumstances.

M.A. Zafar for Appellant.

Khalid Mehmood Farooqi for the State.

Khuram Latif Khan Khosa for the Complainant.

Date of hearing: 17th October, 2000.

2001 P Cr. L J 613

[Lahore]

Before Tasaduq Hussain Jilani, J

Mst. RUQIYA BIBI---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.2703/B of 2000, decided on 29th November, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.16/10---Bail, grant of---Accused .was a woman and had five children from the wedlock---Accused was in judicial lock-up---Bail was allowed to accused in circumstances.

Mian Fazal Rauf Joiya for Petitioner.

Masood Sabir for the State.

2001 P Cr. L J 617

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD YASIN---Petitioner

versus

MUHAMMAD JAVED arid 3 others---Respondent

Criminal Revision No.52 of 1995, heard on 29th February, 2000.

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

----Ss. 307 & 326---Criminal Procedure Code (V of 1898), S.439---Revision petition against acquittal---Revision petition for conviction-of accused under S.307, P.P.C. or for enhancement of his sentence under S.326, P.P.C.--­Acquittal of accused from a charge under S.307, P.P.C. could not be set aside by High Court in revisional jurisdiction and at such stage his acquittal could not be converted into a conviction on the said charge in view of the provisions of S.439(4)(a), Cr.P.C.---Sentence of accused under S.326, P.P.C. also could not be enhanced as the reasons advanced by the Sessions Court for taking a lenient view in the matter of his sentence were neither perverse nor arbitrary---Even otherwise occurrence had taken place more than ten years ago and the accused had actually served out his sentence in the year 1996---Accused had also appeared in person before High Court and remorsefully begged for forgiveness stating to be extremely careful in future---Complainant party ever since the release of accused from jail in the year 1996 had never accused him of any misbehaviour---Sentence of accused under S.326, P.P.C. was not enhanced in circumstances---Revision petition was dismissed accordingly.

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

----Ss. 307/34---Criminal Procedure Code (V of 1898), S.439---Revision petition against acquittal---Appeal of the complainant before the Sessions Court against the acquittal of accused by the Trial Court was itself not maintainable and if the said judgment in appeal was treated as a judgment in revision, then a second revision before High Court was not maintainable so as to question the said acquittal of accused---Revision petition was dismissed in circumstances.

Malik Muhammad Aslam for Petitioner.

Malik Muhammad Farrukh Mahmood, Aslam Javed Minhas and Saleem Nawaz Abbasi, A.A.G. for Respondents.

Date of hearing: 29th February, 2000.

2001 P Cr. L J 634

[Lahore]

Before Khalil-ur-Rehman Ramday and Asif Saeed Khan Khosa, JJ

ADAALAT HUSSAIN alias ZAR ADALAT---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 165 and Murder Reference No. 393 of 1992, heard on 5th August, 1999.

Penal Code (XLV of 1860)--

----S. 302(b)---Appreciation of evidence---Sentence, reduction in---One eye­witness (complainant) no doubt was the son of the deceased, but the other eye-witness of the occurrence was not related to the deceased and he was not shown to have any ill-will or any motive for false implication of accused in the case---Occurrence having taken place in a Bazar with a number of shops around it and in a broad daylight, the same could not have gone un-witnessed and the culprit also could not have escaped unidentified---Motive for the murder had been proved---Conviction of accused was maintained in circumstances---Actual immediate cause prompting accused to murder, however, being not certain, sentence of death of accused was commuted to imprisonment for life.

Ch. Dil Muhammad Tarrar for Appellant.

A.H. Masud for the State.

M.A. Zafar and Mehr Ahmed Nadeem Guhla for the Complainant.

Date of hearing: 5th August, 1999.

2001 P Cr. L J 663

[Lahore]

Before Iftikhar Ahmad Cheema, J

MUHAMMAD MANSHA---Petitioner

versus

STATION HOUSE OFFICER, POLICE STATION SADDAR, RENALA KHURD, DISTRICT OKARA and 3 others---Respondents

Criminal Miscellaneous No.1425/H of 2000, decided on 14th September, 2000.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition ---Detenus were not involved in any criminal case at the time of their arrest---Detention of the detenus at the police station by the respondent Police Officer was illegal---Said Police Officer had prepared bogus and forged record by recording supplementary statement of the complainant in order to falsely implicate the detenus--­Detenus were set at liberty in circumstances---Superintendent of Police was directed by the High Court to suspend the concerned Police Officer immediately as he appeared to be a desperado having no regard for law and rule of law and to proceed against him strictly in accordance with law.

Rai M. Tufail Khan Kharal for Petitioner.

2001 P Cr. L J 685

[Lahore]

Before Riaz Kayani, J

NASREEN and another---Petitioners

versus

STATION HOUSE OFFICER, POLICE STATION BATALA COLONY, FAISALABAD and 10 others---Respondents

Writ Petition No.4637 of 2000, heard on 20th October, 2000.

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

----Ss. 13/14---Criminal Procedure Code (V of 1898), Ss.52 & 103--­Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of F.I.R.---Police Officer who was head of the patrol party had received an information through an informer that the accused were running a brothel and the prostitutes alongwith their clients could be recovered from there---Said Police Officer after having obtained search warrants from a Magistrate raided the house and arrested the accused and registered the impugned F.I.R.--­Neither Code of Criminal Procedure, 1898 nor the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, had any provision authorising the Police Officer to make a search, register a cognizable offence and thereafter to commence investigation on spy information and absence of such provision was in consonance with the Injunctions of Islam---No lady police official having accompanied the police party, search of the lady accused and recovery of the tainted amount from her person was in violation of the provisions of S.52, Cr.P.C.---Provisions of S.103, Cr.P.C. had also been grossly violated while conducting the raid in the house of the accused, for which no explanation .had been furnished---Magistrate had granted permission to the police to search the house in a mechanical manner without application of mind---Search conducted in the case and the F.I.R. registered against the accused in pursuance thereof were declared to be illegal and without lawful authority in circumstances and the same were quashed accordingly.

Riaz v. Station House Officer, Police Station, Jhang City and 2 others PLD 1998 Lah. 35; Noor Muhammad v. S.H.O., Police Station Klurkot, District Bhakkar and 4 others 2000 YLR 85 and Abdul Majeed v. Superintendent of Police and others PLI 1998 Lah. 1158 ref.

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

----Preamble---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Preamble---Spy information---Incognito or anonymous information is totally and completely excluded to be used as a ploy or means of information to rake up cases of promiscuity, immorality or prostitution, allegedly practised in homes belonging to private individuals, being in direct conflict with the provisions of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979.

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

----S. 103---Search to be made in presence of witnesses---Section 103, Cr.P.C. is not a decoration piece appearing in the Code of Criminal Procedure, but is a safeguard against the police excesses by intervention of two respectables of the locality to be associated in the search.

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

----Ss. 98 & 165---Search---Sections 98 & 165, Cr.P.C. have no application whatsoever to a search made before any inquiry, investigation, trial or before recording of F.I.R.

Riaz v. Station House Officer, Police Station, Mang City and 2 others PLD 1998 Lah. 35 ref.

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

----Ss. 52, 98, 103 & 16----Search---Guidelines for Magistrates in granting permission to search---Whatever the purpose of search may be, Magistrate should always keep in mind that the search conducted should be strictly in accordance with the provisions of the Code of Criminal Procedure specifically when womenfolk reside in the premises---Search being a visitation on the rights of privacy of the owner or possessor of the house, Magistrate should be reticent in granting permission to search the house in a mechanical manner .without application of mind.

Before obtaining search warrant the Magistrate is under a bounden duty to apply his mind to allow permission or to refuse it. He should at least examine the Police Officer making the request and if possible put him questions to satisfy his mind. There should be some semblance of an inquiry to be made by the Magistrate before permission is accorded to search the house of an individual, were it be to search the house to find out if the premises are being used as a brothel house or to recover stolen property or Narcotics or illegal arms. Whatever the purpose of search is, the Magistrate should always keep in mind that the search conducted should be strictly in accordance with the provisions of Code of Criminal Procedure specially when womenfolk reside in the premises. Search always is visitation on the rights of privacy of the owner or possessor of the house and, therefore, he should be reticent in granting permission to search the house in a mechanical manner without application of mind. Law has conferred powers on the Magistrates and these powers have only to be exercised carefully being very wary of the powers of the Police Officer which may not be exercised to satiate personal vendetta or when information is provided by a spy keeping in mind that such information is always motivated by lust for money, which has been refused, and out of ill-will personal score has to be settled. In the present case permission to search in case was accorded as if the search warrants were for illegal confinement, the same having been issued under section 100, Cr.P.C. If this was the state of absent mindedness of a Magistrate who has been invested with so many powers under the Code of Criminal Procedure, the police official definitely will get encouraged to indulge in activities which are aimed to secure their own motivated desires.

Nazeer Ahmad Ghazi for Petitioners.

A.H. Masood for the State.

Date of hearing: 20th October, 2000.

2001 P Cr. L J 692

[Lahore]

Before Mian Muhammad Najam-uz-Zaman, J

MUHAMMAD SADIQ and 4 others---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous Nos.2432/B, 2230/B, 2523/B of 2000, decided on 15th November, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/337-A(ii)/337-F(ii)/ 148/149---Bail---Case was one of free fight in which both the parties had received injuries and persons from both sides had been arrested by the police--None of the accused had caused any injury to the deceased--­Punishment for the offences allegedly committed by the accused did not fall within the prohibitory clause of S.497(1), Cr.P.C.---Case being of cross­-version arising from the same incident, one given by the complainant in the F.I.R. and the other given by opposite-party, the same was covered by the principle of further inquiry---Parties were closely related to each other and compromise between them was likely to be effected---Accused were admitted to bail in circumstances.

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

Tahir Mehmood for Petitioners.

Altaf Hussain Bokhari for the State.

2001 P Cr. L J 696

[Lahore]

Before Tassaduq Hussain Jilani, J

AURANGZEB --- Petitioner

versus

THE, STATE---Respondent

Criminal Miscellaneous No. 1807/B of 2000, decided on 7th September, 2000.

Criminal Procedure Code (V of 1898)--

----S. 497(2)---Penal Code (XLV of 1860), Ss.420/468/471---Bail---Accused alongwith others had allegedly got fraudulently issued an allotment order from Assistant Commissioner in favour of some allottees and thereafter sold the allotted land through their general attorney although one of the allottees had already died---Accused was neither a witness nor attorney in any of the alleged transactions---Offence with which the accused was charged was not hit by the prohibitory clause of S.497(1), Cr.P.C. and the question of his guilt required further inquiry---Accused was also 65 years of age---Bail was allowed to accused in circumstances.

Altaf Ibrahim Qureshi for Petitioner.

Syed Altaf Hussain Bokhari for the State.

Date of hearing: 7th September, 2000.

2001 P Cr. L J 698

[Lahore]

Before Khawaja Muhammad Sharif, J

SARFRAZ TALIB---Petitioner

versus

ABDUL WAHEED---Respondent

Criminal Revision No.860 of 2000, heard on 18th December, 2000.

Criminal Procedure Code (V of 1898)--

----Ss. 340(2), 162 & 439---Qanun-e-Shahadat (10 of 1984), Art.140--­Cross-examination as to previous statement in writing---Accused while appearing under S.340(2), Cr.P.C. as his own witness in defence had given his statement on oath and at such stage his position was that of a witness--­Said accused had also given his first version at the time of his arrest by the police and had subsequently deviated from his first version and implicated the petitioner in the case who had a right of cross-examination---Accused, in circumstances, should have been allowed by the Trial Court to be confronted with his earlier 'Version which should have come on record for just decision of the case---First proviso to S.162, Cr.P.C. and Art.140 of the Qanun-e­-Shahadat, 1984, were relevant in the matter---Trial Court was consequently directed to supply the copy of his first version to the accused which he had made before the Investigating Officer and then to recall him and allow the petitioner to confront him with his said first version for the just decision of the case---Revision petition was accepted accordingly.

1990 PCr.LJ 1677 ref.

Sana Ullah Khan Kakar and Ch. Najeeb Faisal for the Complainant.

Ch. Muhammad Hanif Khatana, Addl. A.G. and Talib Ali Ghazanfar for Respondent No. 1.

Date of hearing: 18th December, 2000.

2001 P Cr. L J 704

[Lahore]

Before Bashir A. Mujahid, J

ABDUL HAFEEZ---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.502/B of 2000, decided on 30th March, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S.392/324/337-F(i)/337-F(ii)/34---Bail---Accused according to the F. I. R. had caused blunt weapon injuries to the prosecution witnesses after they and the deceased had already received fire-arm injuries at the hands of co-accused---Accused, therefore, prima facie, was not responsible for having facilitated the commission of murder of the deceased, nor he could be termed at such stage to be vicariously liable for the same---Case of accused needed further probe as contemplated under S.497(2), Cr.P.C.---Accused was admitted to bail, accordingly

Altaf Ibrahim Qureshi for Petitioner.

Miss Azra Saeed for the State.

Date of hearing: 30th March, 2000.

2001 P Cr. L J 706

[Lahore]

Before Ch. Ijaz Ahmad, J

SHAHID ALI ---Appellant

versus

THE STATE---Respondent

Criminal -Appeals Nos. 403, 387 of 1993 and Criminal Revision No.390 of 1994; heard on 8th December, 2000.

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

----S. 423---Appeal, disposal of---Absence of accused and his counsel--­Effect---Mandatory to summon the record for perusal of Appellate Court--­Hearing of accused or his counsel might be necessary provided they present before the Court---Where accused or his counsel intentionally avoided to come to address arguments, the Court might proceed with the matter for its decision on merits in accordance with law---Appeal was decided in absence of accused and his counsel in circumstances.

Bakar Ullah Khan's case 1997 SCMR 274 fol.

Sikandar Hayat's case PLD 1970 SC 224 and Asif Ali's case PLD 1971 SC 223 ref.

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

----S. 320---Appreciation of evidence---Rash and negligent driving---Accused was guilty of driving wagon having brakes out of order which resulted in accident causing death of one person---Trial Court convicted the accused and sentenced him to six years' imprisonment---Validity---Prosecution had established that brakes of the vehicle driven by the accused were not working---Eye-witnesses of the incident had implicated the accused---Rash and negligent driving on the part of the accused was established--­Conviction and sentence awarded by the Trial Court was upheld in circumstances.

State through Advocate-General v. Nabi Bakhsh PLD 1978 Kar. 380 ref.

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

----Ss. 320 & 109---Appreciation of evidence ---Abetment---Accused was not driving the vehicle which met accident due to rash and negligent driving and resulted into death of a person---Prosecution failed, to bring on record that the accused committed the offence with the conspiracy of his co-accused--­Where ingredients of S.109, P.P.C. were not attracted, conviction and sentence awarded by the Trial Court to the accused were set aside.

Amin alias Muhammad and others v. State NLR 1996 Criminal Law Judgments 123 ref.

Rana M. Anwar: Amicus curiae.

Ch. Imtiaz Ahmad for the State.

Date of hearing: 8th December, 2000.

2001 P Cr. L J 713

[Lahore]

Before Khawaja Muhammad Sharif, J

NOOR MUHAMMAD ---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.561 of 1995, heard on 8th June, 2000.

Dangerous Drugs Act (II of 1930)---

----Ss. 10(2)(a) & 31---Jurisdiction of Court---Case under S.10(2)(a) of Dangerous Drugs Act, 1930 was to be tried by Magistrate only as provided under S.31 of the said Act and not by Additional Sessions Judge Conviction and sentence awarded to the accused by Additional Sessions Judge were set aside and case was remanded to Illaqa/Judicial Magistrate for de novo trial.

1979 PCr.LJ 525; 1987 PCr.LJ 2049; PLD 1989 Pesh. 162; 1996 PCr.LJ 449 and 1996 PCr.LJ 1689 ref.

M.A. Zafar and Ch. M. Anon Javed for Appellant.

M. Aslam Malik for the State.

Date of hearing: 8th June, 2000.

2001 P Cr. L J 716

[Lahore]

Before Tassaduq Hussain Jilani and Asif Saeed Khan Khosa, JJ

MUHAMMAD AMIN ---Petitioner

versus

THE STATE and another---Respondents

Writ Petition No. 11987 of 1999, heard on 28th September, 2000.

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

----Ss. 302/324/148/149---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.4---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Jurisdiction of Special Court ---F.I.R. specifically contained an allegation regarding use of a .222 rifle by one of the accused persons during the incident---Eye-witnesses mentioned in the F.I.R. had so far stuck to their version made before the police regarding use of such a weapon---Case was, therefore, exclusively triable by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975---Failure on the part of the police to recover such a rifle or any opinion of the Investigating Officer regarding use or otherwise of such a rifle during the occurrence, could not take away the jurisdiction of Special Court to try the case---Decision about jurisdiction of a Court to try a criminal case could not be abdicated to the whims or conclusions of an Investigating Officer---Wrong assumption of jurisdiction by Sessions Court of the case had not divested the Special Court having the necessary jurisdiction in the matter of its authority or jurisdiction to try it---Impugned order of Special Court summoning the case for trial was consequently upheld and the Constitutional -petition was dismissed accordingly.

Muhammad Yousaf v. Special Judge and others Writ Petition No. 1060 of 2000 disagreed.

Allah Din and 18 others v. The State and another 1994 SCMR 717; Azhar Hussain and others v. Government of Punjab and others 1992 PCr.LJ 2308; Sardar v. The State 1996 PCr.LJ 1848 and Inarn Ullah Rashid v. The State PLD 1998 Lah. 318 ref.

(b) Jurisdiction---

---- Wrong assumption of jurisdiction by a Court does not divest the proper Court having the necessary jurisdiction in the matter of its authority or jurisdiction to try such a case.

Ch. Muhammad Yaqoob Kang for Petitioner.

Abdul Razzaq. Raja for the State.

Raja Sultan Khurram for Respondent No.2.

Date of hearing: 28th September, 2000.

2001 P Cr. L J 721

[Lahore]

Before Iftikhar Hussain Chaudhry, J, AMIN ---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 1592/M in Criminal Appeal No.422 of 1999, decided on S29th August, 2000.

Criminal Procedure Code (V of 1898)--

----S. 561-A---Penal Code (XLV of 1860), S.319---Payment of Diyat to legal heirs of deceased---Father of the accused who was imprisoned in jail on account of non-payment of Diyat had contended that he belonged to working class and in case he was allowed an opportunity to earn amount of compensation to be paid to the legal heirs of deceased, that would benefit both the parties---Validity---Keeping father of the accused behind the bar would not benefit deceased's family---Father of the accused was ordered to be released from custody subject to furnishing bail bonds with direction that he would pay amount in instalments within a period of three years.

Shahryar Sheikh for Petitioner.

Sardar Zahid for the State.

2001 P Cr. L J 722

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Bashir A. Mujahid, JJ

ASHIQ HUSSAIN and another---Appellants

Versus

THE STATE---Respondent

Criminal Appeal No.286, and Murder Reference No.372 of 1998, heard on 15th November, 2000.

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

----Ss. 302(b)/34---Appreciation of evidence---Presence of eye-witnesses on the spot at the relevant time was not unusual, rather it was quite natural--­Improvements made by eye-witnesses in their statements were negligible--­Accused due to established enmity between the parties had the motive to commit the murder of the deceased---Ocular testimony was corroborated by medical evidence as well as by the evidence of recovery---Crime-empties secured from the place of occurrence were found to have been fired from the gun recovered at the instance of accused---Conviction and sentence of death of accused were confirmed in circumstances.

Zia Ullah v. The State 1993 SCMR 155 ref.

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

----Ss. 302(b)/34---Appreciation of evidence---Accused had not caused any injury to the deceased and had allegedly made only four ineffective fires at the spot after snatching the revolver from the deceased---Crime-empties secured from the place of incident and the pistol recovered at the instance of accused were neither sealed into parcels by the Investigating Officer nor the same were sent to Forensic Science Laboratory for comparison---Recovery evidence, therefore, had no value---Ocular account of, occurrence was not corroborated by any independent piece of evidence---Accused was extended the benefit of doubt and acquitted in circumstances.

Sahibzada Farooq Ali Khan for Appellant.

Sardar Altaf Hussain Khan for the Complainant.

Date of hearing: 15th November, 2000.

2001 P Cr. L J 729

[Lahore]

Before Muhammad Asif Jan, J

MUHAMMAD SIDDIQUE---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.473/B of 2000, decided on 14th February, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss.324/34/109---Bail---Accused while armed with a mauser had allegedly resorted to ineffective firing---No overt act was ascribed to the accused---Case of accused was a matter of further inquiry within the meaning of subsection (2) of S.497, Cr.P.C. which had entitled him to grant of bail---Accused was admitted to bats accordingly.

Shahryar Sheikh for Petitioner.

Ch. M. Mahmood for the Complainant.

Rana Muhammad Asad Abbas for the State.

2001 P Cr. L J 738

[Lahore]

Before Asif Saeed Khan Khosa, J

ASIF IQBAL---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.6850/B of 1999, decided on 19th January, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324/337-F(iii)/34/109---Bail---Occurrence had taken place in daylight---Accused was named in the F.I.R. with the role of having caused a specific fire-arm injury to the prosecution witness---Four eye-witnesses including the injured one had fully implicated the accused in the offences alleged against him---Medical evidence had supported the prosecution version---Accused was directly connected with the motive set up in the F.I.R.---Pistol had been recovered from the custody of the accused during investigation---Offence under S.324, P.P.C. was hit by the prohibition contained in S.497(1), Cr.P.C.---Challan against the accused had already been submitted in the Trial Court where his trial had commenced---Case of accused was distinguishable from that of co-accused who had been released on bail---Reasonable grounds, prima facie, existed to believe in the involvement of accused in the offence alleged against him--­Bail was declined to accused in circumstances.

Shaharyar Sheikh for Petitioner.

Ch. Haider Bakhsh for the Complainant.

Badar Munir Ahmad for the State.

2001 P Cr. L J 740

[Lahore]

Before Mian Muhammad Najam-uz-Zaman and Bashir A. Mujahid, JJ

MUHAMMAD ASLAM alias BILLA---Petitioner

versus

THE STATE---Respondent

Criminal Appeal No.239 and Murder Reference No.274 of 1998, heard on 6th November, 2000.

Penal Code (XLV of 1860)---

----S. 302---Appreciation of evidence---Motive---Sentence, reduction in--­Defence had failed to establish any enmity of the eye-witnesses qua the accused for his false implication in the case---Presence of eye-witnesses at the scene of occurrence was natural---Matter having been promptly reported to the police, possibility of concoction and fabrication was ruled out---Murder had been committed in daylight by a single accused and substitution of accused in such a case by the kith and kins of the deceased was a rare phenomenon---Ocular account was corroborated by medical evidence and the recovery of "Khanjar" at the instance of accused which was found to be blood-stained by the Chemical Examiner---Only one prosecution witness had narrated the motive for occurrence before Trial Court but it was not clear from his statement that he was present at the time of alleged incident---Even during investigation no independent witness of locality had come forward to support the motive of occurrence---Prosecution, however, had failed to prove the motive for the occurrence which was a valid ground for reduction of sentence---Death sentence awarded to accused by Trial Court was reduce) to imprisonment for life accordingly.

Sardar Altaf Hussain Khan for Appellant.

Mehr Muhammad Saleem Akhtar for the State.

Date of hearing: 6th November, 2000.

2001 P Cr. L J 746

[Lahore]

Before Muhammad Nawaz Abbasi and Iftikhar Ahmad Cheema, JJ

SHAUKAT HAYAT---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 19 of 1995, heard on 26th September, 2000.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324/337-F(iii), 324/337-D & 452---Appreciation of evidence---Possibility of the accused having acted under grave and sudden provocation at the time of occurrence was not supported by any direct or circumstantial evidence---Occurrence was premeditated---Ocular account of unimpeachable character was corroborated by the evidence of recovery of crime weapon, motive and admission of accused---Report of Forensic Science Laboratory showed that out of three crime-empties recovered from the place of occurrence two were found to have been fired from the pistol recovered from the accused---Discrepancy to the extent of one empty would not materially affect the testimony of injured witnesses who had no reason to falsely involve the accused by substitution---Conviction and sentence of accused were upheld in circumstances---Accused had killed the deceased on his failure to marry her by firing successive shots at her and also made an attempt at the lives of her younger brother and sister on their intervention in a brutal manner and he did not deserve any leniency in the matter of sentence---Appeal of accused was consequently dismissed and sentence of death awarded to him by Trial Court was confirmed.

Ch. Zamurd Hussain for Appellant.

Syed Neyyar Hussain for the Complainant.

Ch. Aftab Ahmad Gujjar for the State.

Date of hearing: 26th September, 2000.

2001 P Cr. L J 767

[Lahore]

Before Iftikhar Ahmad Cheema, J

TARIQ PERVAIZ---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.1011/B of 2000, decided on 6th December, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)---Bail---Allegation of rape---Human psychology and behavioural probability must be borne in mind while assessing the testimonial potency of the victim's version in such a case---How could a gir" of tender age foist a rape charge on a stranger unless a remarkable set of facts or clearest motives were made out---Inherent bashfulness, innocent naivety and feminine tendency to conceal the outrage of masculine sexual aggression were relevant factors which had rendered improbable the hypothesis of false implication of the accused in the case---Ocular evidence was not in conflict with medical evidence---Victim girl having been medically examined after about two days of the occurrence, absence of marks of violence on her body was quite understandable---Fact that hymen of the girl was found torn was the consequence of rape committed upon her which had substantiated the prosecution case rather than the accused's version---Corroboration of the victim's testimony could not be insisted upon when the case spoken by her had struck a judicial mind as probable---Statement of the victim was corroborated by medical evidence, her complaint to her parents and the report of the Chemical Examiner showing her vaginal swabs being stained with semen---Offence with which, accused was charged was punishable with 25 years' R.I.---Trial of accused had already commenced--­Rape for a woman being deathless shame must be dealt with as the gravest crime against human dignity---Bail w refused to accused in circumstances.

I

Muhammad Sadiq's case 1980 SCMR 203 and Shahid Maqbool's case 1994 SCMR 1674 ref.

Muhammad Ilyas Siddiqui for Petitioner: Dr. Babar Awan for the State.

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2001 P Cr. L J 786

[Lahore]

Before Muhammad Nawaz Abbasi, J

MUHAMMAD YAQOOB --- Appellant

versus

THE STATE---Respondent

Criminal Appeal No.99 and Criminal Revision No.68 of 1995, heard on 28th August, 2000.

Penal Code (XLV of 1860)---

----Ss. 302(b) & 302(c)---Appreciation of evidence---Sentence---Presence of deceased and eye-witnesses in the house of accused and discussion of the issue relating to the engagement of niece of accused with the deceased at the time of occurrence was natural---Occurrence although was a sudden affair, but it was not a case of self-defence as pleaded by the accused---Defence version showed that except the deceased, the accused and his daughter none else was present in the house at the relevant time but the accused did not produce his daughter before the police in support of defence plea during investigation nor she was examined as defence witness at trial---Withholding the best evidence in his defence the accused could not successfully establish the defence plea through his sole statement, under S.342, Cr.P.C.---Accused while losing self-control during the discussion for some unknown reasons had caused injuries to the deceased and thus, it was not a case of Qatl-e-Amd punishable under S.302(b), P.P.C. but it fell within the ambit of S.302(c), P.P.C.---Conviction of accused under S.302(b), P.P.C. was, therefore, converted to S.302(c), P.P.C. and his sentence of imprisonment for life was reduced to twenty years' R.I. with benefit of S.382-B, Cr.P.C. in circumstances.

Malik Muhammad Nawaz Khan for Appellant.

Malik Mubeen Ahmad for the State.

Ch. Muhammad Iqbal for the Complainant.

Date of hearing: 28th August, 2000.

2001 P Cr. L J 798

[Lahore]

Before Raja Muhammad Sabir, J

THE STATE‑‑‑Appellant

versus

SOHAIL USMANI‑‑‑Respondent

Suo Motu Criminal Original No. 18 in Criminal Miscellaneous No. 178/H of 2000, heard on 21st December, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑Art. 204‑‑‑Contempt of Court Act (LXIV of 197,6), Ss.3/4‑‑‑Contempt of Court‑‑‑Bailiff equipped with the order of the High Court for the recovery of the detenu introduced himself to the S.H.G. of concerned police station and after conducting the raid on the police station took the Roznamcha in his custody and also found the detenu detained in Hawalat‑‑‑S.H.O. with the help of other officials took the Bailiff in a room, bolted it from inside, snatched the Roznamcha from him and arranged the entry of arrest of the detenu therein‑‑‑Such conduct of the S.H.O. amounted to interference in the performance of the duties of the Bailiff under the order of High Court‑‑­, S.H.O. had shown disregard and disrespect to the order of High Court in causing obstruction in the process of law and frustrating the order of Court‑‑­Conduct of S.H.O. was clearly contumacious ‑‑‑S.H.O. had not contested the allegations made against him and had tendered unconditional apology throwing himself at the mercy of the Court, but he had not done so on the first date and now it was too late ‑‑‑Unrebutted evidence on record had fully established the guilt of the S.H.O.‑‑‑S.H.O. was consequently convicted for contempt of Court and sentenced to four months' R.I. and a fine of Rs.5,000 or in default of payment of fine to undergo one month's S.I.‑‑‑Fine if recovered was directed to be paid to the Bailiff.

The State v. Muhammad Rafique and others 1989 PCr.LJ 1708 ref.

Raja Saeed Akram and Syed Sajjad Hussain, Asstt. A.‑Gs. for the State.

Respondent in person.

Date of hearing: 21st December, 2000.

2001 P Cr. L J 801

[Lahore]

Before Asif Saeed Khan Khosa, J

Mehr ALLAH BAKHSH‑‑‑Petitioner

versus

D.I.‑G., MULTAN and 5 others‑‑‑Respondents

Writ Petition No. 11251 of 2000, decided on 24th October, 2000.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Interference in investigation of a criminal case‑‑‑High Court is generally slow in interfering with investigation of a criminal case which function lies exclusively within the domain of the police‑‑‑Holding of multiple and repeated investigations of a criminal case was deprecated.

Riaz Hussain and others v. The State 1986 SCMR 1934 and Muhammad Arif v. Inspector‑General of Police, Punjab, Lahore and 3 others 2000 YLR 1960 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Criminal Procedure Code (V of 1898), S.156‑‑‑Constitutional petition‑‑‑Transfer of investigation‑‑‑High Court was not supposed to supervise or control the investigation of the case and to interfere in the matter where the highest police functionaries in the area had already applied their conscious minds to the matters involved‑‑‑Superintendent of Police and Deputy Inspector‑General of Police were not legally bound to necessarily transfer investigation of the case upon the request of the complainant‑‑­Prayer of the complainant for transfer of investigation being misconceived, Constitutional petition was dismissed in limine.

Riaz Hussain and others v. The State 1986 SCMR 1934; Muhammad Arif v. Inspector‑General of Police, Punjab, Lahore and 3 others 2000 YLR 1960; Emperor v. Khawaja Nazir Ahmad AIR 1945 PC 18; Shahnaz Begum v. The Honourable Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677 and Malik Shaukat Ali Dogar and 12 others v. Ghulam Qasim Khan Khakwani and others PLD 1994 SC 281 ref.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Writ of mandamus, issuance of‑‑­Requirement‑‑‑Writ of mandamus can be issued by High Court when a public functionary legally bound to act in a particular manner is shown to its satisfaction not to be performing the said legal duty.

Ch. Muhammad Jamil for Petitioner

2001 P Cr. L J 811

[Lahore]

Before Sheikh Abdur Razzaq, J

Raja SHAHID and 3 others‑‑‑Petitioners

versus

SUPERINTENDENT, NEW CENTRAL JAIL, BAHAWALPUR and another‑‑‑Respondents.

Writ Petition No.4775 of 2000/BWP, heard on 23rd January, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑‑Ss. 392/34‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Remission in sentence granted by Government, award of‑‑­Notifications issued by the Government from time to. time had excluded the convicts from the benefit of getting remissions in their sentence who had been convicted for the offence of dacoity punishable under S.395, P.P.C. and not the convicts of the offence under S.392, P.P.C.‑‑‑Accused having been convicted under Ss.392/34, P.P.C., the said embargo was not attracted to their case which fell within the purview of such notifications‑‑­Superintendent of the jail concerned was consequently directed to grant remission to the accused as admissible under the notifications issued by the Government from time to time‑‑‑Constitutional petition was accepted accordingly.

Ch. Abdul Ghaffar Bhuttoa for Petitioners. Nemo for Respondents.

Date of hearing: 23rd January, 2001.

2001 P Cr. LJ 820

[Lahore]

Before Zafar Pasha Chaudhary, J

FARID‑‑‑Appellant

versus

DHAULAR SH15R and 4 others‑‑‑Respondents

Criminal Appeal No.623 and Criminal Revision No.689 of 1992, decided on 18th August, 1997.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/149, 307/149 & 148‑‑‑Appreciation of evidence‑‑‑Benefit of doubt‑‑‑Occurrence had resulted on account of sudden flare‑up and not as a result of pre‑planning or premeditation and, therefore, every accused person was liable for the act committed by him during the occurrence‑‑‑Accused had not caused any injury either to the deceased or to the injured witness and they could not be held ,responsible vicariously for the murder of the deceased or the injury caused to the witness‑‑‑Participation of the accused in the occurrence lacked reliable corroboration‑‑‑Accused were extended benefit of doubt and acquitted in circumstances.

Penal Code (XLV of 1860)‑‑--

‑‑‑‑S. 302‑‑‑Criminal Procedure Code (V of 1898), S.431‑‑‑Abatement of appeal‑‑‑Accused had inflicted fatal injury on the person of the deceased and he was rightly convicted under S.302, P.P.C.‑‑‑Since the accused was dead his appeal stood abated, but not his sentence of fine and the amount of compensation awarded to the heirs of the deceased which would remain intact on the basis of principles laid down under S.431, Cr.P.C., and the same were recoverable from him as a charge on the estate if any left by him.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 307‑‑‑Appreciation of evidence‑‑‑Accused had caused an injury on the person of the prosecution witness whose presence at the time of occurrence could not be denied‑‑‑Conviction of accused was consequently upheld‑‑­Accused had undergone imprisonment for more than 5‑1/2 years and had faced ordeal and hardships of investigation and trial for the last 12‑1/2 years‑‑‑Sentence awarded to him was thus reduced to the imprisonment already undergone by him.

Ch. Muhammad Asif Ranjha for Appellant. Syed Iqbal Hussain Shah for Respondent. . Sh. Ehsan Ahmad for the State.

Date of hearing: 12th August, 1997.

2001 P Cr. L J 840

[Lahore]

Before Riaz Kayani and Bashir A. Mujahid, JJ

MUZAMMAL HUSSAIN ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.92 and Murder Reference No.78 of 1995, heard on 25th January, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Occurrence had taken place in daylight at 8‑30 a.m. in the house of the complainant ‑‑‑F.I.R. had been lodged promptly on the same day without any consultation or deliberation‑‑­Motive as alleged for the occurrence was admitted by the parties‑‑‑Accused had admitted the occurrence, but the plea taken by him in his defence was neither taken during investigation nor the same was substantiated at the trial by evidence‑‑‑Accused also did not get himself medically examined prior to his arrest‑‑‑Eye‑witnesses being inmates of the house were natural witnesses of' the occurrence and their testimony could not be discarded due to their relationship inter se‑‑‑Weapon of offence recovered at the instance of accused had matched with the crime empties secured from the place of incident‑‑­Ocular account of occurrence was corroborated by medical evidence, recovery of weapon of offence and motive‑‑‑Accused had taken the lives of two innocent persons and deserved no leniency‑‑‑No mitigating circumstance was available on record for grant of lesser punishment‑‑­Conviction and sentence of death awarded to accused by Trial Court were confirmed in circumstances.

M.A. Zafar for Appellant. Ch. Imtiaz Ahmad for the State. Muhammad Riaz Lone for the Complainant, Date of hearing: 25th January, 2001.

2001 P Cr. L J 851

[Lahore]

Before Dr. Munir Ahmad Mughal, J

SAFDAR ALI ‑‑‑ Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.595, Criminal Revisions Nos. 403 and 552 of 1993, heard on 1st October, 1997.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 & 304, Part I‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.129 illus. (g)‑‑‑Appreciation of evidence‑‑‑Motive as alleged by the prosecution was not proved‑‑‑Best evidence available to prosecution had neither been produced before the police nor at the trial‑‑‑Trial had rightly drawn the presumption against the prosecution that evidence withheld by the prosecution if produced before the Court would not have, supported the prosecution‑‑‑Complainant had made certain material improvements in his statement at the trial with which he was duly confronted‑‑‑Murder of the deceased appeared to have taken place much before the arrival of the eye­witnesses whose evidence had been rightly rejected by the Trial Court‑‑‑Plea of the accused alone had remained in the field in the circumstances on which he had been convicted and sentenced by the Trial Court‑‑‑When the statement of accused was the only basis, then it had to be taken into consideration as a whole‑‑‑Accused according to his statement had seen the deceased and his sister in an objectionable position on which he murdered the deceased under grave 'and sudden provocation‑‑‑Conviction of accused under S.302, P.P.C. was altered to S.304, Part 1, P.P.C. in circumstances and he was sentenced to ten years' R.I. with fine thereunder‑‑‑Appeal was disposed of accordingly.

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

‑‑‑‑S. 342‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Statement of accused‑‑­When the statement of the accused is the only basis for determining the fate of the case, then it is to be taken into consideration as a whole.

C.M. Sarwar for Appellant.

C.M. Latif for A.G. for the State.

Dil Muhammad Tarrar for the Complainant.

Date of hearing: 1st October, 1997.

2001 P Cr. L J 860

[Lahore]

Before Falak Sher and Muhammad Asif Jan, JJ

KHAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.742 and Murder Reference No.289 of 1992, decided on 16th September, 1997.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 & 307‑‑‑Appreciation of evidence‑‑‑Presence of the complainant at the venue of occurrence at the relevant time remained uncontroverted who had furnished confidence inspiring unimpeached testimony‑‑‑Identification of accused by the complainant when the moon was in full bloom was not difficult ‑‑‑F.I.R. had been promptly lodged‑‑‑Occurrence was also supported by an immediate neighbour who had no motive to falsely substitute the accused as the sole assailant leaving the culprit to go scot free which was a rare phenomenon‑‑‑Ocular testimony was corroborated by medical evidence‑‑‑Report of the Forensic Expert Laboratory qua the crime‑empties recovered from the spot and received in the Laboratory much earlier to the recovery of the crime weapon was positive‑‑‑No mitigating circumstance in favour of accused was available‑‑‑Convictions and sentences of accused were upheld in circumstances.

Ghulam Nabi Bhatti for Appellant.

A.H. Masood for the State.

Date of hearing: 16th September, 1997.

2001 P Cr. L J 866

[Lahore]

Before Rashid Aziz Khan and M. Javed Buttur, JJ

ASHFAQ ALI alias ASHFAQ AHMAD‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 127, Murder Reference No. 127 and Criminal Revision No. 167 of 1992, heard on 15th October, 1997.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Motive for the occurrence was fully proved against the accused‑‑‑F. I. R. was promptly lodged and was supported by eye‑witnesses‑‑‑Complainant had been corroborated by a totally independent eye‑witness who had no motive to falsely implicate the accused in the case‑‑‑Ocular testimony was corroborated by medical evidence‑‑­Recovery of the carbine from the "Baithak" of accused had also proved his involvement in the murder of the deceased‑‑‑Non‑production of injured prosecution witnesses at‑ the trial could not lead to an adverse inference against the prosecution as they had been won over by the accused‑‑‑Police opinion regarding innocence of the accused was not binding on the Court, particularly so when the motive, ocular testimony and medical evidence had proved his guilt‑‑‑Conviction and sentence of death awarded to the accused by Trial Court were affirmed in circumstances.

Muhammad Sharif and another v. The State 1997 SCIVIR 866 and Shah Nawaz v. Lal Khan and 2 others 1972 SCMR 286 ref.

Sultan Ahmad Khawaja for Appellant.

Nemo for the Complainant.

Riaz Lone for the State.

Date of hearing: 15th October, 1997.

2001 P Cr. L J 879

[Lahore]

Before Sheikh Abdur Razzaq and Nazir Ahmad Siddiqui, JJ

TASUWWAR HUSSAIN ‑‑‑ Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.40 of 2000/BWP, heard on 6th November, 2000.

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

‑‑‑Ss. 9‑B, 34 & 35‑‑‑Appreciation of evidence‑‑‑Statement of the complainant Inspector who headed the raiding party, ‑caught hold of the accused on the spot and recovered heroin weighing one kilogram from him, was corroborated by another member of the raiding party‑‑‑Complainant had not been cross‑examined by the defence on the point of recovery of heroin from the accused which stood proved‑‑‑Chemical Examiner in his report had declared the material recovered from the accused as heroin on the basis of tests mentioned therein‑.‑‑Provincial Narcotics Testing Laboratories had been declared by means of a Notification to be Federal Narcotics Testing Laboratories and the Chemical Examiner and Assistant Chemical Examiner appointed therein were to be considered as Government Analyst as stipulated by S.35 of the Control of Narcotic Substances Act, 1997‑‑Report of the Chemical Examiner submitted in the case, therefore, was a report as contemplated under S.34 of the said Act‑‑‑Conviction and sentence of accused were upheld in circumstances.

Khalid Sultan v. The State 1985 PCr.LJ 241 and Abdul Rashid v. State 1998 PCr.LJ 451 ref.

Rana Sardar Ahmad for Appellant.

Atta Muhammad Baloch, Special Public Prosecutor for the State.

Date of hearing: 6th November, 2000.

2001 P Cr. L J 887

[Lahore]

Before Sheikh Abdur Razzaq, J

GHULAM RASOOL‑‑‑Petitioner

versus

SUPERINTENDENT, NEW CENTRAL JAIL, BAHAWALPUR and

another‑‑‑Respondents

Writ Petition No.4562 of 2000/BWP, heard on 29th November, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 & 324‑‑‑Constitution of Pakistan (1973). Art. 199‑‑‑Constitutional petition‑‑‑Remission to sentence, award of‑‑‑None of the provisions relating to acts of terrorism was made applicable at the time of submission of challan in the Court‑‑‑Element of terrorism was neither present in the F.I.R. nor in the body of the judgment‑‑‑Accused had been convicted and sentenced under Ss.302 & 324, P.P.C. and in the absence of the element of any terrorism the concerned Jail was consequently, directed to grant such remission .to the accused‑‑‑Constitutional petition was allowed accordingly.

Chaudhry Abdul Ghaffar Bhuttoa for Petitioner.

Saleem Nawaz Abbasi, Asstt. A.G. for Respondents.

Date of hearing: 29th November, 2000.

2001 P Cr. L J 910

[Lahore]

Before Tassaduq Hussain Jilani, J

NISAR AHMED ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 3032/B of 2000, decided on 11th January, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.337‑A(ii); 337‑A(iii), 337‑F(i), 337‑F(v), 337‑F(iii), 382, 148 & 149‑‑‑Bail, grant of‑‑‑Accused was behind the bars for the last more than five months and all the co‑accused were on bail‑‑‑Accused was attributed only one blow and nothing had been recovered from him‑‑‑Accused was entitled to bail, in circumstances.

Mian Fazal Rauf Joiya for Petitioner.

Nemo for the State.

2001 P Cr. L J 911

[Lahore]

Before Muhammad Asif Jan, J

MUHAMMAD NADEEM alias KAKA MEHR‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2241/B of 2000, decided on 31st July, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/34‑‑‑Bail, grant of‑­Case against the accused was of counter‑version‑‑‑Three successive Police Officers had unanimously opined that though accused was present at the time of occurrence, but he was empty‑handed‑‑‑Effect‑‑‑In absence of reasonable ground that the accused was guilty of offence punishable with death, imprisonment for life or for ten years, case against the accused would be of further inquiry enabling him for grant of bail.

Shueeb Mahmood Butt v. State 1996 SCMR 1845 ref.

Nazir Ahmad Ghazi for Petitioner.

Miss Raeesa Sarwat for the State.

2001 P Cr. L J 916

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD ABBAS ‑‑‑ Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3113/B‑of 2000, decided on 16th January, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(3)‑‑‑Bail, grant of ‑‑‑Prosecutrix was subjected to medical examination three days after the occurrence and medical examination did not show any mark of violence on any part of her body ‑‑‑F.I.R. was filed almost three months after the incident in question‑‑‑Two eye‑witnesses in their affidavits produced before Investigating Officer had stated that they had not seen any such incident and another eye‑witness had stated before the Court that he had not witnessed the alleged incident‑‑‑No report of the Chemical Examiner was available on record regarding vaginal swabs of the prosecutrix‑‑‑First Investigating Officer, had declared the accused to be innocent and case was being investigated afresh‑‑‑Case against the accused calling for further inquiry, he was admitted to bail.

Mian Fazal Rauf Joiya for Petitioner.

Mian Anwarul Haq for the State:

2001 P Cr. L J 918

[Lahore]

Before Riaz Kayani, J

MUHAMMAD NADEEM‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.417 and 289 of 2000, heard on 24th October, 2000.

Penal Code (XLV of 1860)...

‑‑‑‑Ss. 302/34‑‑‑Appreciation of evidence‑‑‑Parties had deep‑seated enmity and prosecution witnesses were highly inimical towards the accused‑‑‑Enmity cuts both ways as the same would provide motive for the accused to commit offence, and also false implication by the complainant could not be ruled out‑‑‑Recovery of three empties was of no use because weapon of offence was not recovered from the accused‑‑‑Prosecution witnesses could not point out as to who fired first and the only mention made was all the three accused fired‑‑‑Non‑mentioning of seat of injuries on person of deceased and the sequence in which the firing took place had confined absence of prosecution witness at the spot at the time when the deceased was done to death‑­Investigating Officer had stated that during his investigation no worthwhile evidence was found to be connecting the accused with commission of offence‑‑‑Where in 'a case of murder question of life and death was involved, required a very close scrutiny of evidence when the case was bristling with previous enmity between the parties and except the statements of prosecution witnesses there was no corroborative evidence available‑‑‑Nominating totally innocent persons and changing the stance subsequently had made the case of prosecution doubtful and benefit of doubt should go to the accused‑‑‑Prosecution having failed to prove the case against the accused, conviction and sentence awarded to them were set aside and they were acquitted.

Shaukat Rafiq Bajwa for Appellant (in Criminal Appeal No.289 of 2000).

Sheharyar Shaikh for Appellant (in Criminal Appeal No.417 of 2000).

Burhan Mozzam Malik and Ch. Shahid Tabassum, Advocates.

Sadaqat Mehmood Butt for the State.

Date of hearing: 24th October, 2000.

2001 P Cr. L J 932

[Lahore]

Before Malik Muhammad Qayyum and Ghulam Mehmood Qureshi, JJ

MUHAMMAD ARSHAD LATIF‑‑‑Petitioner

versus

The SPECIAL JUDGE, ANTI‑TERRORISM and others‑‑‑Respondents

Writ Petitions Nos. 16678, 16083 of 1999 and 231 of 2000 and Criminal Miscellaneous No.73 of 2000, decided on 29th June, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/201/148/149/197‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss.6, 7 & 9‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Case sent to Special Court‑‑‑Validity‑‑‑Case was an outcome of an alleged encounter between the deceased persons and the police in which five persons had been killed, but no police personnel was injured or killed‑‑‑Case had been sent to the Special Court constituted under the Anti‑Terrorism Act, 1997 for trial, jurisdiction of which had been assailed‑‑‑Offences with which the accused were charged admittedly were not scheduled offences‑‑‑Trial Court was to decide whether the police officials involved in the case while performing their duty were legally justified to commit the act attributed to them or whether the alleged police encounter was fake or otherwise‑‑‑Assumption of jurisdiction in the matter by the Special Court was declared to be without lawful authority in circumstances with the direction to prosecution to send the case for trial to the Sessions Court.

Muhammad ‑Afzal and others v. S.H.O. and others 1999 PCr.LJ 929, ref.

Nazir Ahmad Ghazi for Petitioner.

Ch. Muhammad Ashraf, Asstt. A.G. for Respondents.

M. Anwar Sipra for Respondent (in Criminal Miscellaneous No.73 of 2000)

Date of hearing: 14th June, 2000.

2001 P Cr. L J 935

[Lahore]

Before Zafar Pasha Chaudhary, J

MUHAMMAD ZAMIR‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.862/B of 2000, decided on 20th November, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497, third proviso‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail‑‑­Contention that from the facts narrated in the F.I.R. the accused, if found guilty, would be liable to be convicted under S.308, P.P.C. which was punishable with 14 years' R.I. and the accused who had undergone judicial confinement for more than one year without conclusion of trial was entitled to bail under third proviso to S.497(1), Cr.P.C. was repelled‑‑‑Allegation against accused being of murder charge against him had been framed by Trial Court under S.302, P.P.C. and it was premature and unjust to hold that ultimately the offence would be covered by S.308, P.P.C. and not by S.302, P.P.C.‑‑‑Third proviso to S.497(1), Cr.P.C. could not be pressed to the extent that in the first instance the Court should determine without trial as to which offence was likely to be constituted on the basis of facts brought on the record so far and thereafter the benefit of the said proviso should be extended to the accused‑‑‑Bail was declined to accused accordingly.

Khalil‑uz‑Zaman v. Supreme Appellate Court, Lahore and 4 others PLD 1994 SC 885 ref.

Sardar Muhammad Ishaque Khan for Petitioner.

Sayeda B.H. Shah for the State.

Malik Rab Nawaz Noon for the Complainant.

2001 P Cr. L J 939

[Lahore]

Before Riaz Kayani and Bashir A. Mujahid, JJ

ABDUL KHALIQ and 2 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.287 and Murder Reference No. 162 of 1992, heard on 3rd August, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34‑‑‑Appreciation of evidence‑‑‑Presence of eye‑witnesses on the scene of occurrence was natural‑‑‑Ocular testimony inspired confidence which was in absolute accord with medical evidence and was further corroborated by the evidence of recovery‑‑‑Gun recovered from the accused was found wedded with the crime empties secured from the spot‑‑‑Recovery of the motorcycle from the place of incident being driven by the accused and abandoned there had also a corroborative value‑‑‑No mitigating circumstance was available on record for awarding lesser punishment to accused‑‑­Conviction and sentence of death awarded to each accused were confirmed in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34‑‑‑Appreciation of evidence‑‑‑Eye‑witness account of occurrence was in conflict with the post‑mortem report of the deceased regarding the injury allegedly caused by the accused‑‑‑First version of the accused at the time of his arrest before the Investigating Officer was that he was not present at the spot‑‑‑House from where the crime weapon was recovered was not in exclusive possession of the accused‑‑‑Accused was extended the benefit of doubt in circumstances and he was acquitted accordingly.

M.A. Zafar for Appellant.

Mian Abdul Qayum Anjum for the State.

Nemo for the Complainant.

Date of hearing: 3rd August, 2000.

2001 P Cr. L J 947

[Lahore]

Before Muhammad Asif Jan, J

SULTAN alias BABLI‑‑‑Petitioner

versus

THE SUTE ‑‑‑ Respondent

Criminal Miscellaneous No.7379/B of 2000, decided on 9th January; 2001

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.337‑F(i)(iii)(vi)/337‑L(ii)/147 & 149‑‑Bail, grant of‑‑‑Delay of four days in lodging the F.I.R. for which no explanation was given‑‑‑Offences allegedly committed by the accused did not fall within the prohibition contained in subsection (1) of S.497, Cr.P.C.‑‑­Grant of bail in such cases was the rule and refusal was an exception‑‑­Accused was granted bail, in circumstances.

Tariq Bashir v. The State PLD 1995 SC 34 ref.

Abdul Latif Chaudhary for Petitioner.

S.A. Irshad for the State.

2001 P Cr. L J 949

[Lahore]

Before Mian Nazir Akhtar, J

MUSHTAQ AHMAD‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.7287/B of 2000, decided on 31st December, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11‑‑‑Bail, grant of‑‑‑Allegation was that during existence of his marriage, accused abducted real sister of his existing wife and married with her without divorcing verbally or in writing his existing wife (real sister of alleged abductee)‑‑‑Alleged abductee had claimed that 'the accused had married her after divorcing his wife (her real sister)‑‑‑Allegation of abduction though had not been proved against the accused, but it had been fully proved that accused married real sister of his Wife during period of Iddat‑‑­Validity‑‑‑Effect‑ of irrevocable Talaq was that a wife could marry another man and the husband another woman immediately if the marriage was unconsummated and after the expiry of the Iddat if the marriage was consummated‑‑‑Marriage of the accused with his first wife having been consummated and six children having born .out of the wedlock, accused's Nikah with real sister of first wife of the accused before the expiry of period of Iddat was not valid‑‑‑Case against the accused fell under S.10(2), Offence of Zina (Enforcement of Hudood) Ordinance, 1979 which was covered by prohibition under S.497, Cr.P.C.‑‑‑Accused was not entitled to concession of bail.

Muhammad Arif v. State PLD 1982 FSC 292 ref.

Ch. Muhammad Hussain Chhachhar for Petitioner.

M.A. Zafar for the Complainant.

Muhammad Azam for the State.

2001 P Cr. L J 951

[Lahore]

Before Sheikh Abdur Razzaq and Nazir Ahmad Siddiqui, JJ

FAYYAZ HUSSAIN ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Revisions Nos.57, 58 and 59 of 2000, heard on 24th October, 2000.

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

‑‑‑‑Ss. 9(c), 34 & 35‑‑‑Criminal Procedure Code (V of 1898), Ss.540 & 439‑‑‑Summoning of Chemical Examiner etc.‑‑‑All Narcotics Testing Laboratories set up by the Provincial Governments had been treated to be Federal Narcotics Testing Laboratories for the purposes of the Control of Narcotic Substances Act, 1997 by means of a Government Notification‑‑­Report of the Chemical Examiner submitted in the case would, therefore, be considered to be the report of a Notified Laboratory as contemplated under S.34 of the said Act and similarly the Chemical Examiner and the Assistant Chemical Examiner appointed therein would be considered to be Government Analyst as stipulated by S.35 of the Act‑‑‑Matter regarding admissibility of the report of the Chemical Examiner had been left open by 'the Sessions Court while passing the impugned order‑‑‑No need of summoning the Chemical, Examiner or Assistant Chemical Examiner existed in circumstances.

Khan Younas Khan for Petitioner.

Atta Muhammad Khan Baluch, Special Prosecutor for the State.

Date of hearing: 24th October, 2000.

2001 P Cr. L J 954

[Lahore]

Before Riaz Kayani, J

FALAK SHER and others----Appellants

Versus

THE STATE---Respondent

Criminal Appeal No. 663 and Criminal Revision No. 365 of 1996 heard on 6th March, 2000.

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

----Ss. 316, 337-A (ii), 337-F(vi), 337-F(i) & 337-A(i)---Application of evidence‑‑‑Prosecution had failed to prove motive in the case‑‑‑Presence of 13 injuries on the persons belonging to accused party had shown the force used by the complainant party which had come armed with Sotas‑‑‑Death of the deceased was the result of a single injury caused in a free fight in which both the pies used force and violence and which had erupted without any premeditate n due to long‑standing enmity‑‑‑Section 316, P.P.C. had no application in circumstances and S.302(c), P.P.C. was attracted where murder had been caused in a free fight‑‑‑Conviction of accused under S.316, P.P.C. was consequently altered to S.302(c), P.P.C. and since two co­-accused in the case had been murdered and injuries had been caused to other co‑accused, his sentence was reduced to imprisonment already undergone by him‑‑‑Convictions of other accused being proper were maintained but their sentence was also reduced to the term of imprisonment already undergone by them in circumstances.

The State v. Muhammad Hanif and 5 others 1992 SCMR 2047 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 316‑‑‑Punishment for Qatl Shibh‑i‑Amd‑‑‑ Applicability‑‑‑Section 316, P.P.C. has no application when a free fight ensues without premeditation out of a sudden impulse.

Asghar Ali for Appellants.

Miss Raeesa Serwat for the State.

A.D. Naseem for the Complainant.

Dates of hearing: 3rd and 6th March, 2000.

2001 P Cr. L J 972

[Lahore]

Before Asif Saeed Khan Khosa, J

NASRULLAH‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3828/B of 2000, decided on 19th September, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Bail‑‑­Accused had been nominated in the promptly lodged F.I.R. with a definite role of having caused afire‑arm‑injury on the person of the deceased ‑‑‑Eye­witnesses mentioned in the F.I.R. including three injured victims had fully implicated the accused in the offence‑‑‑Medical evidence had supported the allegations levelled against the accused in the F.I.R.‑‑‑Gun had been recovered from the custody of accused during investigation‑‑‑Reasonable grounds, prima facie, existed to believe in the involvement of the accused in the crime ‑‑‑Challan had already been submitted against the accused in the Trial Court‑‑‑Mere old age of accused, per se, did not entitle him to the concession of bail‑‑No material had been placed before the Court regarding serious sickness of the accused; even otherwise such ground had not been taken before the Trial Court‑‑‑Bail was declined to accused in circumstances.

Muhammad Hussain v. State 1977 SCMR 52 and Gul Ahmed v. Mason Khan and others 1977 SCMR 27 ref.

A.D. Naseem for Petitioner.

Azam Nazir Tarar for the Complainant.

Muhammad Younas Rana for the State.

2001 P Cr. L J 974

[Lahore]

Before Riaz Kayani, J

MUHAMMAD BASHIR KHAN‑‑‑Petitioner

versus

MUHAMMAD ARIF and 3 others‑‑‑Respondents

Writ Petition No. 14852 of 2000, heard on 21st March, 2001.

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

‑‑‑‑S. 16‑‑‑Penal Code (XLV of 1860), S.380‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Criminal Procedure Code (V of 1898), S.63‑‑­Constitutional petition‑‑‑Discharge of accused by the Magistrate ‑‑‑Validity‑‑­Lady accused was named in the F.I.R. as an accused having eloped with her co‑accused when she was wife of the complainant‑‑‑Statement of lady accused before the Magistrate that she was not abducted by any one was premature to be acted upon, as she being an accused had to adopt the stance beneficial to her‑‑‑Magistrate without allowing the prosecution to investigate into the truth or falsity of the aforesaid statement of the lady accused had jumped to the conclusion that the case was false merely because she had stated to be so‑‑‑Impugned order passed by the Magistrate discharging the accused in the case had stifled the prosecution depriving it of an opportunity of investigation into the matter‑ Said order being palpably illegal was set aside with the direction to police to continue with the investigation in an impartial and honest manner‑‑‑Constitutional petition was accepted accordingly.

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

Riaz Hussain Khan for Petitioner.

Syed Aftab Sherazi for Respondents Nos. 1 and 2.

Nasim Sabir Chaudhry, Addl. A.G.

Date of hearing: 21st March, 2001.

2001 P Cr. L J 980

[Lahore]

Before Mumtaz Ali Mirza, J

ANWAR AHMAD‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No.54/B of 2001, decided on 8th February, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.382/411/34‑‑‑Bail‑‑‑Police itself was responsible for the delay in registration of the F.I.R. as it had refused to exercise its statutory duty by registering the same at the instance of the complainant ‑‑‑alleged against the accused, no doubt, did not fall within the prohibitory clause of S.497(1), Cr.P.C. and the grant of bail in such cases was a rule and its refusal an exception, but the same being non bailable, accused could not claim bail as a matter of right‑‑‑Accused and his co‑accused in the case were police officials and the facts of the case were of peculiar and serious nature‑‑‑Police officials whose job was to catch hold of dacoits had themselves assumed the role of dacoits‑‑‑Bail was declined to accused in circumstances.

Malik Parvaiz Akhtar Awan for Petitioner.

2001 P Cr. L J 984

[Lahore]

Before Riaz Kayani, J

TANVEER AFZAL‑‑‑Petitioner

versus

UMAR HAYAT and 2 others‑‑‑Respondents

Criminal Miscellaneous Application No.202/C/B of 2001, decided on 6th February, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.337‑A(i)(ii)/337‑F(vi)/452/148/149‑‑‑Cancellation of bail‑‑‑Many persons had been injured by the accused and his companions in the incident‑‑‑Accused still dissatisfied entered the house of the complainant and gave a Sota blow to a lady who had not participated in the occurrence resulting in the fracture of a bone of her right ring finger‑‑‑Such act of accused alleged in the F.I.R. had made his case one of serious nature‑‑‑Case of accused although did not fall within the prohibitory clause of S.497(1), Cr.P.C., yet his cowardly act of beating a woman just because she belonged to the opposite camp did not entitle him to the exercise of discretion of bail in his, favour ‑‑‑Sota had been recovered at the instance of accused while in police custody‑‑‑Post‑arrest bail had been granted to accused just 14 days after the dismissal of his pre‑arrest bail application‑‑‑Bail allowed to accused by Sessions Court was recalled in circumstances.

A.D. Nasim for the Complainant.

Chaudhry M. Abdul Saleem for the Accused.

Walayat Umar Chaudhry for the State.

2001 P Cr. L J 989

[Lahore]

Before Raja Muhammad Sabir and Zafar Pasha Chaudhary, JJ

THE STATE‑‑‑Appellant

versus

GULZAR HUSSAIN and 2 others‑‑‑Respondents

Criminal Appeals Nos.171 of 1981, 96 of 1982 and Criminal Revision No. 178 of 1981, heard on 13th. November, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Eye‑witness had no direct relationship with the deceased and he had satisfactorily explained his presence on the place of occurrence at the relevant time‑‑‑Occurrence having taken place in broad daylight at 11 a.m. could not go un-witnessed and as such the testimony of prosecution witnesses could not be discredited‑‑­Prosecution having successfully discharged its onus, had proved its case against the accused beyond doubt‑‑‑Conviction and sentence of accused were upheld in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Criminal Procedure Code (V of 1898), S.417(i)‑‑‑Appeal against acquittal‑‑‑Case of prosecution from the very beginning and during the trial was that the accused was first to open the attack and he had inflicted injury on the head of the deceased‑‑‑Specific injury assigned to the accused was supported by medical evidence‑‑‑Defence plea of alibi was of no avail to accused, rather it supported the prosecution version that on the relevant date he was on leave and his presence at the place of occurrence could not be doubted‑‑‑Case of accused was not distinguishable from that of convicted co­-accused, rather it was more elaborate than his case‑‑‑Prosecution had successfully proved the case against the accused‑‑‑Acquittal of accused recorded by Trial Court was consequently set aside and he was convicted under S.302, P.P.C. and sentenced to imprisonment for life with fine.

Raja Muhammad Ayub Kiani for the State.

Tariq Azam Chaudhry for Respondents.

Sardar Muhammad Ishaq Khan and Ch. Iqbal for the Complainant.

Date of hearing: 13th November, 2000.

2001 P Cr. L J 994

[Lahore]

Before Riaz Kayani, J

Mst. RASHEEDA BEGUM‑‑‑Petitioner

versus

Malik MUHAMMAD AFZAL and 5 others‑‑‑Respondents

Writ Petition No. 17 of 2001, decided on 8th January, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑Art. 199‑‑‑Criminal Procedure Code (V of 1898), S.154‑‑‑Constitutional petition‑‑‑Registration of F.I.R.‑‑‑Complainant was present in her house when the accused armed with Sotas had allegedly attacked her as a result of which her right arm was fractured and she also suffered injuries on her back and other parts of her body‑‑‑Medico‑legal report of the complainant appended with the petition had supported her version ‑‑‑S.S.P. concerned was directed by High Court to hear the grievance of the complainant and thereafter dirt his subordinates to forthwith register a case against the delinquents for causing hurt and removing the valuables‑‑‑Constitutional petition was disposed of accordingly.

A.D. Naseem for Petitioner.

2001 P Cr. L J 998

[Lahore]

Before M. Javed Buttur, J

DHULAH KHAN‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.944/B of 2000, decided on 2nd March, 2001.

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

‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.337‑A(ii)/337‑D‑‑‑Bail‑‑‑Accused was not suffering from any serious ailment and he could not be enlarged on bail merely because he was 65 years of age‑‑‑Offence alleged against the accused, prima facie, fell within the provisions of S.337‑D, P.P.C. which was hit by the prohibition contained in S.497(1), Cr.P.C.‑‑‑High Court at such stage could not undertake a deeper inquiry which was the function of Trial Court‑‑‑Alleged inconsistency of one hour between medical evidence and the F.I.R. version .qua the time of occurrence was minor which did not make the accused entitled to bail‑‑‑Injury sustained by the complainant could not be caused by a friendly hand‑‑‑Accused was refused bail in circumstances.

Sakhi Muhammad v. The State 1973 PCr.LJ 397; Hakim Ali and 3 others v. The State 1979 SCMR 114; Gul Ahmad v. Masam Khan and 3 others 1977 SCMR 27; Muhammad Hussain v. The State 1977 SCMR 52; Pervaiz Khan v. The State PLD 1998 Lah. 84; Hiddu alias Hidayatullah v. The State 1982 PCr.LJ 30; Fateh Khan v. The State 1973 PCr.LJ 125; Shahab Dino alias Shah Dad v. The State 1997 MLD 2749 and Muhammad Akram and 2 others v. The State PLJ 1998 Cr. Cases 1605 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 337‑D‑‑‑Punishment for "Jaifah"‑‑‑To attract the provisions of S.337‑D, P.P.C. it is not necessary that vital organs like heart, lungs or liver are caused damage‑‑‑Enough if the injury penetrates into the body cavity and then enters that part of the body wherein vital organs are located‑‑‑Such injury would be treated as "Jaifah".

Pervaiz Khan v. The State PLD 1998 Lah. 84 ref.

Agha Muhammad Ali Khan for Petitioner.

Malik Shahzad Ahmad for the Complainant.

Raja Muhammad Ayub Kayani for the State.

2001 P Cr. L J 1003

[Lahore]

Before Khawaja Muhammad Sharif and, M. Naeem Ullah Khan Sherwani, JJ

HUSSAIN MASIH and another‑‑‑Petitioners

Versus

SENIOR SUPERINTENDENT OF POLICE, GUJRANWALA and 2 others‑‑‑Respondents

Criminal Miscellaneous No.269/Q of 2000, decided on 25th January, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 295‑B/295‑C/34/109‑‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑‑Quashing of F.I.R.‑‑‑Nobody had admittedly seen the accused throwing the burnt pieces of the Holy Qur'an into the house of the complainant‑‑‑No evidence, whatsoever, was available on the record to link the accused with the commission of the offence‑‑‑Offence though was heinous, yet the Additional Advocate‑General after going through the judicial record was unable to support the prosecution case‑‑‑Conviction of accused in the case by the Trial Court was not probable ‑‑‑F.I.R. registered against the accused was quashed in circumstances.

Perwaiz Aslam Chaudhry for Petitioners.

Muhammad Hanif Khatana, Addl. A.‑G. for the State.

2001.P Cr. L J 1006

[Lahore]

Before Muhammad Nawaz Abbasi, J

KHADIM HUSSAIN ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 194 of 2000, heard on 29th September, 2000.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 409‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Appreciation of evidence‑‑‑Trial Court without determining the status of accused as public servant and the nature of transaction and offence, had assumed jurisdiction on the basis of presumptions‑‑‑Accused was neither a public servant nor public property was involved in the case‑‑‑Commission of an offence of misappropriation of the private funds by a person falling within definition of public servant would not be triable by the Special Judge, Anti‑Corruption‑‑­Offence had admittedly been committed within the territorial jurisdiction of Azad Kashmir, amount had also been received by the accused in Azad Kashmir to be utilized for the purpose of inquiries of immigrants belonging to Azad Kashmir and the Advisory Service was also functioning in Azad Kashmir, therefore, the criminal case could not be registered against the accused by the F.I.A. at Rawalpindi and the challan of the case also could not be submitted before the Special Judge (Central) at Rawalpindi ‑‑‑Oral assertion that the accused by virtue of his position as Director Advisory Service would be deemed to be a public servant and that the Advisory Service was established by the Federal Government, without any documentary proof, was not enough either to declare the Advisory. Service, a non‑Governmental Organization, as an Organization of the Government, or the accused as a public servant‑‑‑Commission of an offence in Azad Kashmir by a citizen of Azad Kashmir would not be as such triable by a Court established by the Federal Government of Pakistan‑‑‑Accused was acquitted in circumstances.

Syed Zakir Hussain Shah for Appellant.

Qazi Naeem for the State.

Date of hearing: 29th September, 2000.

2001 P Cr. L J 1013

[Lahore]

Before Tassaduq Hussain Jilani, J

MUHAMMAD ARSHAD and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.278/B of 2001/MN, decided on 14th February, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10(2)/11‑‑‑Bail, grant of‑‑‑Victim had sworn an affidavit exonerating the accused‑‑‑No evidence of Zina was available against the accused‑‑‑Accused were behind the bars for the last more than four months and were not required for further investigation‑‑‑Accused were admitted to bail in circumstances.

Mian Fazal Rauf for Petitioners.

Syed Aamer Raza for the State.

2001 P Cr. L J 1022

[Lahore]

Before Muhammad Asif Jan, J

NASIR IQBAL‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.558/B of 2000, decided on 7th August, 20,00.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.346‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.12--‑‑Bail, grant of ‑‑­F.I.R. indicated that alleged victim voluntarily accompanied the accused‑‑­ Elements of kidnapping or abduction which were sine qua non for the application of S.12 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 were missing and offence under S.346, P.P.C. was punishable with 2 years' R.I. and was bailable ‑‑‑Accused was entitled to grant of bail.

Muhammad Ibrahim alias Pappu v. State 1996 PCr.LJ 688; Ashiq Hussain and others v. State 1997 PCr.LJ 916; Imran Bhatti v. State 2000 YLR 2096 and Ghulam Mujtaba v. State 2000 YLR 2560 ref.

Sh. Akhtar Javed for Petitioner.

Aftab Ahmad for the State.

2001 P Cr. L J 1023

[Lahore]

Before Iftikhar Hussain Chaudhary

and Zafar Pasha Chaudhary, JJ

NASIR MEHMOOD and another‑‑‑Appellants

Versus

THE STATE‑‑-- Respondent

Criminal Appeal No.762 and Murder Reference No.305 of 1995, heard on 20th February, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 306 & 308/34‑‑‑Punishment for Qatl‑e‑Amd‑‑‑Where an offender by joining hands with other co‑accused commits murders of more than one person and one of the murders squarely attracts S.302, P.P.C., then even if one murder may be covered by the provisions of S.306 or S.308, P.P.C., lesser sentence as provided by S.308, P.P.C. cannot be imposed on account of application of S.34, P.P.C.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑--‑ Ss. 302/34, 337‑L(2)/34, 337‑A(ii)/34 & 337‑D/34‑‑‑Appreciation of evidence‑‑‑Common intention‑‑‑Entire incident culminating into murders of two, persons and injuries on four prosecution witnesses was part of one and the same transaction‑‑‑Active participation of each of the accused in commission of murders and infliction of injuries had fully established that they were all pursuing the errand with common intention‑‑‑Eye‑witnesses had made consistent statements implicating the accused which merited full credence‑‑‑Convictions and sentences of accused were maintained in circumstances.

Sardar Muhammad Latif Khan Khosa for Appellants.

Muhammad Aslam Khokhar for the State.

Date of hearing: 20th February, 2001.

2001 P Cr. L J 1038

[Lahore]

Before Khawaja Muhammad Sharif, J

AFTAB AHMAD KHAN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous . No.7514/B of 2000, decided on 12th February, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/109/148/149‑‑‑Bail, grant of‑‑‑Only one injury on the person of the deceased was specifically attributed to co‑accused and no injury was attributed to the accused‑‑‑Only allegation against the accused was that he alongwith three others took the deceased from his arms and legs and threw him on the ground and the, co‑accused had caused the deceased the fatal injury with dagger‑‑‑Role of the accused needing further inquiry, his bail application was accepted.

Rai Muhammad Tufail Khan Kharal for Petitioner.

Abdul Ghaffar and M. Ishaq Malik for the Complainant.

2001 P Cr. L J 1039

[Lahore]

Before Dr. Munir Ahmad Mughal, J

MUHAMMAD AYUB alias RANJHA‑‑‑Petitioner

Versus

DISTRICT MAGISTRATE/DEPUTY COMMISSIONER;

MULTAN and 2 others‑‑‑Respondents

Writ Petition. No ‑ 9784 of 2000, heard on 7th February, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 188‑‑‑Criminal Procedure Code (V of 1898), Ss.4(l)(h) &.195(lj(a)‑‑­Constitution of Pakistan (1973), Arts.199 & 18‑‑‑Constitutional petition‑‑­Prosecution for disobedience of order promulgated by public servant‑‑­Quashing of F. I. R. ‑‑‑Complaint ought to have been lodged in the case by the District Magistrate himself or by his superior i.e., Home Secretary as envisaged under Ss.4(1)(h) & 195(1)(a), Cr.P.C. and a subordinate of the District Magistrate ,under no circumstances was competent to file the F.1.R.‑‑‑Registration of the case against the accused was, therefore, without jurisdiction and without lawful authority‑‑‑Sealing of the business premises of the accused restricting his business was also in violation of the fundamental right granted to him under Art. 18 of the Constitution‑‑‑Accused having been duly authorised to do his business, order of the District Magistrate imposing 5.144, CT.P.C. was not applicable to his case ‑‑‑Mala fides of police was also apparent on the face of the record as son of the accused aged five years had even been mentioned as an accused in the F.I.R.‑‑‑F.I.R. was quashed in circumstances and the Constitutional petition was allowed accordingly.

Ghulam Rasool and 3 others v. The State 1998 PCr.LJ 584 ref.

(b) Interpretation of statutes‑‑‑

‑‑‑‑Special Act‑‑‑Interpretation‑‑‑Principle‑‑‑Action provided by a Special Act against violation of any of its provisions can only be taken under the Special Act and not under the general provisions of law.

Khadim Nadeem Malik for Petitioner.

Akhtar Masood for Respondents.

Date of hearing: 7th February, 2001.'

2001 P Cr. L J 1052

[Lahore]

Before Rashid Aziz Khan and M. Javed Buttur, JJ

GHULAM ALI ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.448 of 1995, heard on 1st October, 1997.

Dangerous Drugs Act (II of 1930)‑‑‑--

‑‑‑‑S..10(2)(a)‑‑‑Appreciation of evidence‑‑‑Recovery of opium at the instance of accused had been witnessed by the witnesses who had signed the recovery memo. and had no ill‑will or motive to implicate him falsely in the case‑‑‑Defence evidence was not worthy of much reliance‑‑‑Conviction of accused was maintained in circumstances‑‑‑Sentence of eight years' R. I. awarded to accused by Trial Court was reduced to four ,years' R.I. with benefit of S.382‑B, Cr.P.C.

Abdul Hamid Rana for Appellant.

Mirza Bashir Baig for the State.

Date of hearing: 1st October, 1997.

2001 P Cr. L J 1054

[Lahore]

Before Muhammad Asif Jan, J

ALI MUHAMMAD ‑‑‑Petitioner

Versus

INSPECTOR‑GENERAL OF POLICE, PUNJAB, LAHORE and another‑‑‑Respondents

Writ Petition No.23438 of 2000, decided on 1st March, 2001

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

‑‑‑‑S. 156‑‑‑Investigation into cognizable cases‑‑‑Investigation regarding the commission of offences is both the duty as well, as the prerogative of the police and is a matter which is not within the domain of the Courts.

Emperor v. Khawaja Nazir Ahmad AIR 1945 PC 18; M.S. Khawaja v. The State PLD 1965 SC 287; Shahnaz Begum v. The Honourable Judges of the High Court of Sindh and Blochistan and another PLD 1971 SC 677 and Badaruddin v. The Additional Sessions Judge of Jhang PLD 1993 SC

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Satisfaction of High Court regarding non‑availability of any other legal adequate remedy is the sine qua non and the essential ingredient of Art. 199 of the Constitution‑‑­High Court in the absence of the said ingredient does not assume muchless exercise its extraordinary discretionary Constitutional jurisdiction to issue writs in the nature of a direction, declaration, habeas corpus or quo warranto.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/109‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Transfer of investigation‑‑‑Petitioner if not satisfied with the method or manner in which the investigation was being carried out by the Police Officer, he had an immediate and adequate remedy of making a representation to the next higher Police Officer‑‑‑Police was a statutory organization set up under the Police Act and the Rules having its own hierarchy to look after its own affairs including matters pertaining to law and order and investigation into the commission of offences which must culminate in the final report of the Investigating Officer to be submitted to the competent Court for trial without inordinate delay‑‑‑Interference in such process by the Courts would be like throwing a hammer in the spokes of the wheel and dragging the whole process to a grinding halt which was not the intention of the Constitution and the law‑‑‑Constitutional petition was dismissed in limine in circumstances.

Emperor v. Khawaja Nazir Ahmad AIR 1945 PC 18; M.S. Khawaja v. The State PLD 1965 SC 287; Shahnaz Begum v. The Honourable Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677 and Badaruddin v. The Additional Sessions Judge of Jhang PLD 1993 SC 399 ref.

Muhammad Asam Cheema for Petitioner.

2001 P Cr. L J 1063

[Lahore]

Before Ch. Ijaz Ahmad, J

ABDUR REHMAN KHAN‑‑‑Petitioner

Versus

ADDITIONAL SESSIONS JUDGE‑II, BHAKKAR and 5 others‑‑‑Respondents

Writ Petition No.4078 of 1990, heard on 16th November, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 516‑A‑‑‑Constitution of Pakistan (19.73), Art.199 ‑‑‑ Constitutional petition‑‑‑Custody of vehicle on Superdari‑‑‑Sessions Court in exercise of its revisional jurisdiction while accepting the revision petition of the respondent set aside the order of the Trial Court directing it to hand over the vehicle in question to the respondent on interim custody‑‑‑ Respondent had filed the said revision petition before the Sessions Court without impleading the petitioner as respondent therein, although the petitioner was also a party before the Trial Court‑‑‑Impugned order, having been passed by the Sessions Court without providing personal hearing to the petitioner was not sustainable under the law and it was consequently set aside--‑‑Sessions Court was directed to decide the revision petition afresh after providing personal hearing to both the parties strictly in accordance with raw‑‑‑Constitutional petition was accepted accordingly.

Zakir Ahmad's case PLD 1965 SC 90 and Pakistan and another v Public‑at‑Large PLD 1987 SC 304 ref.

Allah Wasaya Malik for Petitioner.

Date of hearing: 16th November, 2000.

2001 P Cr. L J 1067

[Lahore]

Before Falak Sher and Muhammad Asif Jan, JJ

NAIK MUHAMMAD ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.567 and. Murder Reference No.333 of 1992, heard on 1st October, 1997.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence ‑‑‑F.I.R. had been lodged with reasonable promptness and did not suffer from any inordinate delay ‑‑‑Eye­witnesses who lived together in the same neighborhood and were proceeding together to their place of work, were natural witnesses of the occurrence‑‑‑Close relationship of eye‑witnesses with the deceased was no reason per se for disbelieving their evidence‑‑‑One eye‑witness of the incident was neither related to the complainant party nor did he have any enmity with the accused‑‑‑Ocular account of occurrence was‑consistent and straightforward‑‑‑Conviction and sentence of death of accused were confirmed in circumstances.

Qazi Muhammad Latif for Appellant (at State expense).

M. Muhammad Aslam for the State.

Date of hearing: 1st October, 1997.

2001 P Cr. L J 1080

[Lahore]

Before Muhammad Naseem Chaudhri

and Sheikh Abdur Razzaq, JJ

GHULAM MUSTAFA ‑‑‑ Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.26/J of 1993, heard on 21st October, 1997.

West Pakistan Arms Ordinance (XX of 1965)‑‑‑

‑‑‑‑S. 13‑‑‑Sentence, reduction in‑‑‑Merits of the case were not challenged and only reduction in sentence was prayed for‑‑‑Maximum punishment for an offence under S.13 of the Arms Ordinance, 1965, was seven years' R.I. and minimum punishment was three years' R.I. or fine or both‑‑‑Accused had undergone imprisonment for a period of about five years which was sufficient to meet the ends of justice‑‑‑Sentence of seven years' R.I. awarded to accused by Trial Court was reduced to the imprisonment already undergone by him accordingly‑‑‑Record did not show that the accused was in a position to pay the huge amount of Rs.30,000 as fine and the same was, therefore, set aside‑‑‑Appeal was disposed of accordingly.

Muhammad Aslam Zar for Appellant (on State expense).

Khawaja Shaukat Ali for the State.

2001 P Cr. L J 1082

[Lahore]

Before Asif Saeed Khan Khosa, J

ALLAH BACHAYA and 3 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 199/B of 2001, decided on 1st February, 2001

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

‑‑‑‑S. 498‑‑‑Penal Code (XLV of, 1860), Ss.341/337‑L(I)/34 ‑‑‑ Pre‑arrest bail‑‑‑Trial Court had framed the charge in the case only under S.341, P.P.C. which was a bailable offence and the High Court at such stage was left with no option but to admit the accused to, pre‑arrest bail, as bail was claimed in a bailable offence as a matter of right and not by way of grace or concession‑‑‑Subsequent change of opinion by the Investigating Officer regarding applicability of the provisions of S.337‑L(1), P.P.C. to the case had admittedly been brought about not through any fresh investigation but on the basis of the same material already available on the record‑‑‑Trial Court was, therefore, seized of the entire material at the time of framing of the charge and it had, for its own reasons, not framed a charge under S.337‑L(1), P.P.C. against the accused‑‑‑Ad interim pre­arrest bail already allowed to accused was confirmed in circumstances.

Ch. Muhammad Anwar Sanlma and others v. The State 1976 SCMR 168 ref.

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

‑‑‑‑Ss. 497/498‑‑‑Application to be decided on the basis of allegations contained in the charge‑‑‑Once a charge has been framed against an accused person by the Trial Court, then his bail application should be decided on the basis of the allegations contained in the charge and not on the basis of any other penal provision which the police or the complainant party may consider to be also attracted to that case.

Ch. Muhammad Anwar Samma and others v. The State 1976 SCMR 168 ref.

Ch. Muhammad Sanaul Haq for Petitioners.

Rafique Ahmad Malik for the Complainant.

Syed Shahid Hussain for the State.

2001 P Cr. L J 1106

[Lahore]

Before Sheikh Abdur Razzaq, J

MAHRAM ALI and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.41 of 1989/BWP, decided on 28ih November, 2000.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 307/34‑‑‑Criminal Procedure Code (V of 1898), 5.417‑‑‑Appeal against acquittal‑‑‑Benefit of doubt‑‑‑Injuries attributed to accused were not borne out by the record as the injured persons did not have the same—­Presence of accused at the scene of occurrence was also not proved on the record‑‑‑Accused, thus, had been rightly extended the benefit of doubt by the Trial Court‑‑‑Appeal against acquittal of accused was dismissed accordingly.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 304,. Part. I‑‑‑Appreciation of evidence‑‑‑Self‑defence, right of‑‑­Deceased and the injured witnesses were not armed with any lethal weapon at the relevant time of the occurrence‑‑‑Stand taken by accused that they had caused injuries to, the said persons in the, exercise of right of self-­defence of life and property was, therefore, not acceptable‑‑‑Trial Court had rightly concluded that the accused had exceeded their right of self­defence‑‑‑Conviction and sentence of accused were upheld in circumstances.

Muhammad Afzal Cheema for Appellants.

A.R. Tayyib for the Complainant.

Muhammad Saleem Nawaz Abbasi, A. A.‑G. for the State.

Date of hearing: 23rd October, 2000.

2001 P Cr. L J 1114

[Lahore]

Before Sheikh Abdur Razzaq, J

GHULAM HUSSAIN alias GAMI‑‑‑Petitioner

Versus

SUPERINTENDENT, NEW CENTRAL JAIL, BAHAWALPUR and another‑‑‑Respondents

Writ Petition No.4591 of 2000/BWP, heard on 17th January, 2001.

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

‑‑S. 10(3)‑‑‑Penal Code (XLV of 1860), Ss.392 & 411‑‑‑Constitution of Pakistan (1973), Art;.199‑‑‑Constitutional petition‑‑‑Remissions allowed by Government in sentence, award of‑‑‑Embargo had been imposed on the grant of remission in sentence where the accused was convicted for an offence of gang rape punishable under S.10(4) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979‑‑‑Accused in the case was undergoing imprisonment under S.10(3) and not under S.10(4) of the said Ordinance‑‑­Even otherwise the accused having been charged for the commission of offence on 2~‑1‑1996, amendment relating to the commission of the offence under S.10(4) of the Ordinance introduced on 21‑4‑1997 was not applicable‑‑‑Similarly Presidential Order granting remission in sentence did not debar the award of such remission when convicted under S.392, P.P.C.‑‑‑Presidential Orders granting remissions in sentences from time to time, therefore, were applicable to the case of accused‑‑‑Superintendent of the Jail concerned was consequently directed to grant remissions to the accused in terms of the Presidential Orders‑‑‑Constitutional petition was accepted accordingly.

Ch. Abdul Ghaffar Bhuttoa for Petitioner.

Respondent in person.

Date of hearing: 17th January, 2001.

2001 P Cr. L J 1123

[Lahore]

Before Khawaja Muhammad Sharif, J

M. SIDDIQUE‑‑‑Petitioner

Versus

REHMAT and others‑‑‑Respondents

Criminal Revision No:70 of 2001, decided on 14th February, 200

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑Ss. 204 & 439‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Accused after having been summoned by Trial Court in the complaint case through summons was directed to file bail bonds ‑‑‑Validity‑‑‑F.I.R. was registered against the accused, but no challan was submitted in the Court‑‑‑Sessions Court in the complaint filed by the complainant after recording preliminary evidence issued summons against the accused and on their appearance in the Court in pursuance thereof directed them to file bail bonds in the sum of Rs.50,000 each by means of the impugned order‑‑‑Practice of summoning the accused through bailable warrants was going on for the last so many years and was based on good reasoning and interpretation of the statute‑‑‑No illegality had been committed by the Sessions Court in passing the impugned order which did not call for any interference‑‑‑Revision petition was dismissed in limine accordingly.

PLD 1992 Lah. 444; 1987 PCr:LJ 532; 1987 PCr.LJ 1897 and Mazhar Hussain Shah v. The State 1986 PCr.LJ 2359 ref.

Abid Saqi for Petitioner.

2001 P Cr, L J 1130

[Lahore]

Before Khawaja Muhammad Sharif J

NOOK MUHAMMAD and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.772 of 2000, heard on 26th January, 2001.

Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss. 302, 364, 148 & 201‑‑‑Appreciation of evidence‑‑‑Case against accused was one of circumstantial evidence and not of direct evidence‑‑‑Joint extra‑judicial confession made by accused was not admissible in evidence‑‑­Last seen evidence was not trustworthy‑‑‑Recoveries effected in the case were not blood‑stained and were even made in violation of S.103; Cr.P.C.‑‑­Prosecution case was full of doubts, benefits of which had to go to the accused‑‑‑Accused were acquitted on benefit of doubt in circumstances.

Anwar Jamal Hussain and another v. The State PLJ 1992 Cr.C. (Lahore) 30 ref.

Masood Mirza and Bashir Abbas Khan for Appellants.

M. Aaam for the State.

Mazharul Haq Bhatti for the Complainant.

Date of hearing: 26th January, 2001:

2001PCr.LJ 1141

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD LATIF‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.246/J of 2000, heard on 30th March, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(c) & 308‑‑‑Appreciation of evidence‑‑‑Dead bodies of both the deceased were taken into possession from the house of accused‑‑‑Version of the accused seemed to be more plausible and convincing which appealed to reason‑‑‑Investigating Officer had also admitted the first version of accused being the same which he had stated before the Trial Court‑‑‑Evidence on record had proved that the accused had killed his own daughter and the other deceased under grave and sudden provocation on having seen both of them in an objectionable condition-‑‑- Convictions of accused were maintained, but his sentences were reduced to the imprisonment already undergone by him in circumstances.

Mian Iqbal Hussain for Appellant (at State expenses).

Kasim Ali Bhango for the State.

Ch. Muhammad Anwar Bhinder for the Complainant.

Date of hearing: 30th March, 2001.

2001 P Cr. L J 1150

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD IJAZ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.924 of 1994 and Criminal Revision No.332 of 1997, heard on 28th March, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 302(e)‑‑‑Appreciation of evidence‑ ‑Motive given by the prosecution in the F.I.R. was that the accused had suspicion that the deceased had illicit relations with his sister‑‑‑Investigating Officer in his cross‑examination had admitted that the accused in his first version had taken the plea that the deceased was making jestures to his sister‑‑‑Prosecution witnesses had admitted to have forbidden the deceased from coming to the house of the accused‑‑‑Accused in his statement under 5.342, Cr.P.C. had also taken the plea of grave and sudden provocation‑‑‑Something must have happened which might have provoked the accused at the time of occurrence‑‑‑Case of accused, in the circumstances, was covered by S.302(c), P.P.C.‑‑‑Conviction of accused under S.302(b), P.P.C. was consequently altered to one under S.302(c), P.P.C. and his sentence of imprisonment for life was reduced to ten years' R.I. with benefit of 5.382‑B, Cr.P.C.

Masood Mirza for Appellant. Naeem Sadiq for the State.

Munir Ahmad Bhatti for the Complainant.

Date of hearing: 28th March, 2001.

2001 P Cr. L J 1157

[Lahore]

Before Khawaja Muhammad Sharif, J

HAJI GUL‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 118/J of 1999, heard on 30th March, 2001.

Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Complainant being the wife of the deceased and the inmate of the house was a natural witness of the occurrence and she had no enmity with the accused‑‑‑Eye‑witnesses who were closely related to accused had been rightly given up by the prosecution as having been won over‑‑‑Case being of single accused, no question of substitution could arise which was a rare phenomenon‑‑‑Court was to see the quality of evidence and not its quantity‑‑‑Evidence of the complainant was trustworthy which was fully corroborated by medical evidence and the recovery of gun from the accused at the time of his arrest‑‑‑Motive having not been proved in the case, accused had been rightly sentenced to imprisonment for life instead of capital punishment‑‑‑Appeal filed by accused was dismissed accordingly.

Miss Tasneem Amin for Appellant (at State expenses).

Muhammad Shareef Butt for the State.

Date of hearing: 30th March, 2001.

2001 P Cr. L J 1160

[Lahore]

Before Khalil‑ur‑Rehman Ramday

and Muhammad Asif Jan, JJ

Haji NAIK MUHAMMAD ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.377/B of 2001, decided on 10th April, 2001.

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

‑‑‑‑S. 497(1), first proviso‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.9(c) & 51‑‑‑Bail‑‑‑Bail was sought essentially on the ground of infirmity and sickness of accused as according to the report of a Medical Board comprising Experts of Institute of Cardiology, he had severe diffuse coronary artery disease and chronic Asthma and required Coronary Artery Bypass Surgery alongwith continuous medical therapy‑‑‑Case of accused fell within the ambit of S.9(c) of the Control of Narcotic Substances Act, 1997 which carried punishment of death and it was not governed by subsection (1) of 5.497, Cr.P.C., but was covered by the provisions of subsection (1) of S.51 of the Control of Narcotic Substances Act, 1997‑‑‑Provisions of S.51 of the said Act did not admit of any exception with respect to persons like females, males under the age of 16 years or sick or infirm persons‑‑­Prohibition contained in the said S.51 being absolute was applicable to all kinds of persons accused of an offence under the said Act if the same was punishable with death‑‑‑Accused hailed from Peshawar and was found in a hotel in Lahore and 13 kilograms of heroin had been allegedly recovered from him‑‑‑No reasonable explanation could be offered by the accused as to why such a large quantity of heroin was falsely and maliciously planted on him‑‑‑Accused, therefore, in view of the said legal and factual position was not entitled to the grant of bail‑‑‑Bail was declined to accused accordingly‑‑­Accused reportedly suffering from a heart ailment and had been advised Coronary Artery By‑pass Sugary, Superintendent and the Medical Officer of the Jail concerned were directed to make immediate arrangement after completing the necessary formalities without wasting any time to shift him to the hospital of his choice for the said purpose, if he so wished.

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

‑‑‑‑S. 51‑‑‑Bail‑‑‑Prohibition absolute‑‑‑Provisions of S.51 of the Control of Narcotic Substances Act, 1997 do not admit of any exception with respect to persons who are females or males under the age of 16 years or who are sick or infirm‑‑‑Prohibition contained in the said S.51 is absolute and is applicable to all kinds of persons accused of an offence under the said Act if the same is punishable with death.

Sardar Muhammad Latif Khan Khosa for Petitioner.

Muhammad Akbar Tarar, A.A. ‑G. for the State.

2001 P Cr. L J 1168

[Lahore]

Before Khawaja Muhammad Sharif, J

SAJID SALEEM and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.40 of 2001, heard on 16th February, 2001.

Offence of Zina (Enforcement of Hudood) Ordinance (VII of 19'79)‑‑

‑‑‑‑S. 12‑‑‑Penal Code (XLV of 1860), S.361‑‑‑Criminal Procedure Code (V of 1898), S.439‑‑‑Revision‑‑‑Deletion of charge‑‑‑Section 361, P.P.C. relating to kidnapping was riot attracted to the facts and circumstances of the case‑‑‑No kidnapping had taken place because even according to the prosecution the victim was taken by the accused to the nearby place which was at some distance‑‑‑Provisions of S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, therefore, were not attracted in the case‑‑‑Charge framed by the Sessions Court under S.12 of the Ordinance v was consequently set aside and the case was remanded to the competent Court for trial under S.377, P.P.C.‑‑‑Revision petition was accepted accordingly.

1985 SCMR 1822 ref.

Muhammad Inayat Ullah Cheema for Petitioners.

Muhammad Hanif Khatana, Addl. A.‑G. for the State.

Syed Azhar Ali Bukhari for the Complainant.

Date of hearing: 16th February, 2001.

2001 P Cr. LJ 1173

[Lahore]

Before M. Javed Buttur and Ali Nawaz Chawhan

TAUSEEF HUSSAIN SHAH

and another ‑‑‑ Appellants

Versus

DISTRICT MAGISTRATE, CHAKWAL

and 2 others‑‑‑Respondents

Intra‑Court Appeal No.91 of 2000, heard on 3rd May, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 20 & 199‑‑‑Freedom to profess religion and to manage religious institutions‑‑‑Freedom to believe is absolute but to act according to such belief has been subjected to regulation for the protection of the society‑‑‑Freedom to act should have an appropriate definition to preserve the enforcement of that 'protection‑‑‑Power to regulate has to be exercised in such a way that it does not infringe the protected freedom‑‑‑Principles‑‑‑Courts can judicially review whether the act of the State conforms to the fine balance of rights and responsibilities in this connection.

Of course, law cannot restrict the freedom of conscience and belief and to act according to such belief and it gurantees both. Whereas, the freedom to believe is absolute but, the second has been subjected to regulation for the protection of the society. It requires that freedom to act should have an appropriate definition to preserve the enforcement of that protection. Thus, the right of the citizens to act is not absolute but has to be under the subjugation of a regulation for the protection of a society. However, the power to regulate has to be exercised in such a way that it does not infringe the protected freedom. A State while acting through its local authority can, therefore, by general and non‑discriminatory legislation order regulating the times, the places and the manner for acting according to belief while keeping in view the required safeguards for the peace and good order. While also taking care that the Constitutional rights guarnteeing liberties were not invaded.' Therefore, the outward expressions of the religious beliefs are to be subjugated to the ordinary law in such a way that on one hand the Constitutional guarantees are observed and on ,the other hand there is no threat to any disorder.

Section 30(2) of the Police Act, 1861 speaks of a judgment which a District Magistrate etc. has to make with respect to the intention of a person for taking out a procession and this judgment has to be made after a proper factual inquiry which satisfies 'the Magistrate of the District etc. not because of any subjective approach but because of objective reasoning that there was an actual likelihood of a breach of peace of a magnitude which may take things out of control of the local administration. His judgment is not to be illusory, whimsical and a figment of imagination.

(b) Police Act (V of 1861)‑‑‑

‑‑S. 30(2)‑‑‑Constitution of Pakistan (1973), Arts.20 & 199‑‑­Constitutional petition‑‑‑Regulation of public assemblies and processions and licensing of the same‑‑‑Freedom to profess religion and to manage religious institutions‑‑‑Taking out of a procession of Alain by members of Fiqah‑e-­Jaffaria‑‑‑Application seeking permission for taking out said procession to the District Magistrate‑‑‑Refusal of permission by the District Magistrate‑‑­Validity‑‑‑Provision of S.30(2), Police Act, 1861 speaks of a judgment which a District Magistrate etc. has to make with respect to the intention of a person for taking out a procession and such judgment has to be made after a proper factual inquiry which satisfies the Magistrate of the District etc not because of any subjective approach but because of objective reasoning that there was an actual likelihood of a breach of peace of a magnitude which may take things out of control of the local administration‑‑‑Judgment of the District Magistrate etc. is not to be illusory, whimsical and figment of imagination‑‑‑Freedom to believe in religion is absolute but, to act according to such belief has been subjected to regulation for the protection of the society‑‑‑Power to regulate has to be exercised in such a way that it does not infringe the protected freedom‑‑‑State while acting through its local authority can, therefore, by general and non‑discriminatory legislative order regulating the times, the places and the manner for such processions while keeping in view the required safeguards for the peace and good order while also taking care that the Constitutional rights guaranteeing liberties were not invaded‑‑­Courts, therefore, can judicially review whether the act of the State conforms to the fine balance of rights and responsibilities in this connection‑‑‑Letter to District Magistrate refusing to allow to take out the procession was based on mere reports and it was perfunctorily disposing of the application‑‑­District Magistrate had not seriously appreciated the rights guaranteed by Art.20 of the Constitution by not justifying his order of refusal by showing his personal satisfaction based on his visit to the area and against facts he might have gathered for arriving at a judgment as required by S.30(2) of the Police Act, 1861‑‑‑Letter of refusal to take out procession, therefore, fell short of the requirements of S.30 of the Police Act, 1861‑‑‑High Court, in circumstances, directed the District Magistrate to carry a spot inspection accompanied by the Superintendent of Police where both of them should meet the cross‑section of the society, inspect the route of the procession, ascertain the dangers involved if any and then give a judgment whether to permit the taking out of Alain procession or not because the District Magistrate comes to the judgment that apprehensions against breach of peace were either illusory or were being over‑emphasized, he may then consider granting permission while also considering providing sufficient protection against outsiders for the taking out of the Alain procession while regulating its tenure, time and the route.

Section 30(2) of the Police Act, 1861 speaks of a judgment which a District Magistrate etc. has to make with respect to the intention of a person for‑ taking out a procession and this judgment has to be made after a proper factual inquiry which satisfies the Magistrate of the District etc. not because of any subjective approach but because of objective reasoning that there was an actual likelihood of a breach of peace of a magnitude which may take things out of control of the local administration, His judgment is not to be illusory, whimsical and a figment of imagination.

Of course, law cannot restrict the freedom of conscience and belief and to act according to such belief and it guarantees both. Whereas, the freedom to believe is absolute but, the second has been subjected to regulation for the protection of the society. It requires that freedom to act should have an appropriate definition to preserve the enforcement of that protection. Thus, the right of the citizens to act is not absolute but has to be under the subjugation of a regulation for the protection of a society However, the power to regulate has to be exercised in such a way that it does not infringe the protected freedom. A State while acting through its local authority can, therefore by general and non‑discriminatory legislation order regulating the times, the places and the manner for acting according to belief while keeping in view the required safeguards for the peace and good order. While also taking care that the Constitutional rights guaranteeing liberties were not invaded. Therefore, the outward expressions of the religious beliefs are to be subjugated to the ordinary law in such a way that on one hand the Constitutional guarantees are observed and on the other hand there is no threat to any disorder.

The Courts are, therefore, called upon to judicially review whether the act of the State conforms to the fine balance of rights and responsibilities in this connection.

Letter of the District Magistrate appeared to be based on mere reports and it perfunctorily intended disposing of the application seeking permission for taking out the Alain procession. The District Magistrate had not seriously appreciated the rights guaranteed by Article 20 of the Constitution of Islamic Republic of Pakistan, 1973 otherwise, he would have justified his order of refusal by showing his personal satisfaction based on his visit to the area and against facts, he may have gathered for arriving at a judgment as required by section .30(2) of the Police Act, 1861. The rights guaranteed by the Constitution could not be taken so lightly and a justification through a speaking order could only satisfy a judicial conscience that an outward expression of religious beliefs if allowed in the case would definitely result in a law and order situation and that a refusal on this basis was the only reasonable answer.

The letter fell short of the requirements placed by section 30 of the Police Act. Findings had been given on the basis of the police reports which were submitted. High Court directed the District Magistrate to carry a spot inspection accompanied by the Superintendent of Police. Where both of them should meet the cross‑section of the society, inspect the route of the procession, ascertain the dangers involved if any and then give a judgment whether to permit the taking out of the Alam procession or not.

In case the District Magistrate comes to the judgment that apprehensions against breach of peace were either illusory or were being over‑emphasized, he may then consider granting permission while also considering providing sufficient protection against outsiders for the taking out of the Alam procession while regulating its tenure, time and the route.

Religious intolerance amongst the various sects of Islam is now a matter of great public concern as there is a phenomenal rise in cases of sectarian terrorism. The State is doing its best to curb these trends. The Holy Qur'an provides that all Muslims constitute a single brotherhood.

Syed Sarfraz Hussain Bokhari v. District Magistrate, Kasur and others PLD 1983 SC 172; Syed Abdur Rehman Shah v. Superintendent of Police, Mansehra and others PLJ 1999 Pesh. 98; Malik Ghulam Yousaf N, District Magistrate, Attock 1995 PLR 196 (Pesh.); Muhammad Jalil Khan and others v. Ram Nath Katua and others AIR 1931 All. 341 and I.C.A No.205 of 1996 ref.

(c) Islamic Jurisprudence‑‑‑

‑‑‑‑ Sects‑‑‑Intolerance amongst various sects‑‑‑Holy Qur'an provides that all Muslims constitute a single brotherhood.

Religious intolerance amongst the various sects of Islam is now a matter of great public concern as there is a phenomenal rise in cases of sectarian terrorism. The State is doing its best to curb these trends. The Holy Qur'an provides that all Muslims constitute a single brotherhood.

Holy Qur'an: III.105; VI.159; VIIL46; XXI.92‑93; XXIII.55; XXX.32; XLI.36; XLIII.65; XLV.17 and Surah Al‑Hujrat, Ayat 10 ref.

(d) Islamic Jurisprudence‑‑‑

‑‑‑‑ Moral values ‑‑‑Islam is not only an enlightened religion but is also a sophisticated religion where people are supposed to be polite, decent, low in their speech and humble in manners.

Al‑Qur' an Surah Luqman; Surah Az‑Zumar, Ayat 22 and Surah An­Nisa, Ayat 83 ref.

(e) Islamic Jurisprudence‑‑‑

‑‑‑‑ Sects‑‑‑Tension with respect to beliefs in different Fiqahs‑‑‑Remedial measures‑‑‑Spreading the message of Allah in its true spirit and through an easy language to the teeming millions was desired by the High Court so that the believers were inspired by the words of the Almighty both in the case of Ibadaat and Moamlaat and keep themselves away from those who may be spreading discard and mischief.

But the question is as to why is there so much of tension with respect to beliefs in different Fiqahs. An answer lies in spreading the message of Allah in its true spirit and through an easy language to the teeming millions so that the believers are inspired by the' words of the Almighty both in the case of Ibadaat and Moamlaat and they keep themselves away from those who may be spreading discard and mischief. One such institution at the National level who can perform this function is of course the Ministry of Hajj and Religious Affairs, whose inter alia duties ought to be to create harmony between different schisms.

Yousaf Kazmi for Appellant.

Raja Saeed Akram, A.A.‑G. for Respondents.

Date of hearing: 3rd May, 2001.

2001 P Cr. L J 1189

[Lahore]

Before M. Javed Buttur and

Iftikhar Ahmad Cheema, JJ

ALI NAWAZ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.10 and Murder Reference No.7 of 1995, decided on 25th February, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/392/34‑‑‑Appreciation of evidence‑‑‑Sentence‑‑‑Accused a man of desperate character‑‑‑Delay in lodging F.I.R. had fully been explained‑‑­Mere relationship of any of the witnesses with the deceased would not exclude his testimony from consideration if truthfulness of such witnesses had been proved sufficiently before the Court‑‑‑Ocular account was unanimous arid straightforward and was in consonance with the medical evidence as well as the recoveries and was worthy of explicit reliance‑Accused was unable to make any hole in such confidence‑inspiring testimony of prosecution witnesses despite lengthy cross‑examination ‑‑‑Prosecution witnesses had fully explained their presence at the time and venue of occurrence‑‑‑Complainant, who was real brother of the deceased, had no reason to falsely implicate the accused in such a heinous offence‑‑‑Evidence on record had proved that the accused was a man of desperate character who had himself admitted that he was involved in many other criminal cases including murder cases‑‑‑Accused having committed the brutal murder of the deceased, the extenuating circumstances in his case were lacking‑‑­Conviction and sentence awarded to the accused by the Trial Court were upheld and death sentence awarded to him was confirmed.

Masood Ahmed Gillani for Appellant.

Tariq Hussain Khan for the State.

Date of hearing: 25th February, 1999

2001 P Cr. L J 1199

[Lahore]

Before M. Javed Buttur

and Nasim Sikandar, JJ

Mst. TEHMINA DOLTANA and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos.4594/B, 4590/B, 4591/B and 4671/B of 2000, decided on 22nd August, 2000.

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

‑‑‑‑Ss. 172 & 196‑‑‑Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), Ss.3, 4, 5 & 10‑‑‑Penal Code (XLV of 1860), S.124‑A‑‑­Offence against the State‑‑‑Special Law to override general law‑‑‑Suppression of Terrorist Activities (Special Courts) Act, 1975 being a special law, would override anything contained in the Criminal Procedure Code, 1898 or in any other law‑‑‑Provisions of S.5 of the Act had provided that the Special Court constituted under the Act would take cognizance of the offence on police report only excluding application of any provisions of Criminal Procedure Code to the contrary.

Mian Nawaz Sharif and others v. The State 2000 MLD 946 and Muhammad Sharif v. The State 1992 PCr.LJ 127 ref.

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

‑‑‑‑Ss. 196 & 497‑‑‑Penal Code (XLV of 1860), S.124‑A‑‑‑Bail, grant of‑‑Accused persons who were leaders of a big political party held indoor meeting in connection with Pakistan Day and before holding said meeting the organizers of the party obtained due permission from the concerned Authorities‑‑‑Allegation against the accused was that they had delivered seditious speeches in front of a gathering of approximately ninety person‑‑­F.I.R. had disclosed that in the opinion of the complainant the speeches delivered by the accused were seditious in nature within the meaning of S.124‑A, P.P.C. but the F.I.R. did not contain either whole text or the salient features of the speeches delivered by the accused‑‑‑Merely subjective opinion of the complainant lacking the objective criteria would show that case was of further inquiry and it was for the Court to determine as to whether the words spoken by the accused were seditious or not and could not be left to the judgment of the witnesses‑‑‑Court had to consider speeches, in fair, free and liberal spirit and not in a narrow‑minded or sectarian way‑‑­Passing reference was made to the diary maintained by the police and no portion of said diary containing alleged offending speeches were read in the Court‑‑‑Whether there was a refusal to recognize the Government or a call to rebel against Government or to resort to un‑Constitutional measures by use of force as to disturb the public peace, was yet to be determined through evidence by the Court‑‑‑Case against the accused being of further inquiry, they were entitled to grant of bail.

Muhammad Ishaq and others v. The State 1988 PCr.LJ 992; Naveed Ahmad Khan, Advocate and 6 others v. Station House Officer, Renala Khurd 1994 PCr.LJ 2381; Abul Fateh and others v. The State 1990 MLD 1087; Maulana Dost Muhammad v. The State 1976 PCr.LJ 184; Zafar Ali and 7 others v. The State 1969 PCr.LJ 120; Masihur Rehman v. The State 1971 DLC 750; Niharendu Dutt Maiundar v. Emperor. AIR 1942 FC 22; Sangbad v. Province of East Pakistan PLD 1958 Dacca 324; Muhammad Inamullah Khan v. The State PLD 1977 Lah. 1279; Emperor v. Sadhashiv Narayan PLD 1947 PC 32; Gangadhar Tilak's case ILR 22 Bom. 112; Zahid Malik v. The State 1990 PLJ 1310; The State v. Sardar Attaullah Khan Mangal PLD 1967 SC 78 and Mian Tufail Muhammad v. The State PLJ 1973 Lah. 68 ref.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.124‑A‑‑‑Bail, grant of‑‑­Provisions of S.124‑A, P.P.C. had provided two types of punishments, one for imprisonment for life and other for imprisonment which could extend to three years; second part of punishment provided under the said section, did not fall within the prohibitory clause of S.497, Cr.P.C. and the Court was to form an opinion after considering the entire material to be brought on record in evidence by the prosecution as to whether in circumstances, it would be a case for punishment of three years or life imprisonment‑‑‑Court at the bail stage could not determine that the accused were most probably going to be awarded the sentence of life imprisonment and not up to three years as provided in law‑‑‑Case against the accused, in circumstances, was of further inquiry entitling them to bail.

Sardar Muhammad Latif Khan Khosa for Petitioner.

Ijaz Ahmad Chaudhry, Addl. A.G. for the State.

Ch. Naseer Ahmad Bhutta for Petitioners (in Criminal Miscellaneous No. 4590/B of 2000 and Criminal Miscellaneous No. 4591/B of 2000).

Malik Muhammad Rafique Rajwana for Petitioner' (in Criminal Miscellaneous No. 4671/B of 2000).

2001 P Cr. L J 1219

[Lahore]

Before Iftikhar Hussain Chaudhry and Zafar Pasha Chaudhry, JJ

MUHAMMAD SHOAIB and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 458 and Murder Reference No. 172 of 1995, heard on 30th January, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Appreciation of evidence‑‑‑Eye‑witnesses had no enmity or motive to falsely implicate the accused ‑‑‑F.I.R. had been lodged promptly‑‑‑Eye‑witnesses had not only supported each other on all material points, but their statements were also fully supported by medical evidence and the report of Forensic Science Laboratory‑‑‑Ocular testimony being confidence‑inspiring could be safely relied upon‑‑‑Accused having mounted the assault jointly had acted in furtherance of their common intention and application of S.34, P.P.C. did riot suffer from any illegality‑‑‑Conviction of accused was upheld accordingly‑‑‑Accused, however, had committed the murders in order to vindicate the family honour which was a sufficient mitigating circumstance in `heir favour‑‑‑Sentence of death awarded to each accused by Trial Court was reduced to imprisonment for life in circumstances.

Talib H. Rizvi assisted by Sharyar Sheikh for Appellant.

Ch. M. Ashiq for the State.

Ch. Saeed Sabir for the Complainant.

Nehmat Ali Chaudhry, Advocate in person.

Date of hearing: 30th January, 2001.

2001 P Cr. L J 1227

[Lahore]

Before Riaz Kayani, J

AHMAD NAWAZ and 2 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 1317 of 1999, Jail Appeal 9/J and Criminal Revision No. 67 of 2000, heard on 1st February, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/34, 411 & 380‑‑‑Appreciation of evidence‑‑‑Motive as set up by the prosecution was not proved‑‑‑F.I.R. was lodged after deliberations with unexplained delay on the arrival of the complainant who was a retired police employee and knew the police mechanisation‑‑‑Eye‑witnesses had enmity with the accused and they had failed, to give good reasons for their presence in the house of the deceased at the relevant time‑‑‑Recoveries of the gun and the amount from the accused were tainted and planted on them in order to establish their complicity in the crime‑‑‑Accused were acquitted in circumstances.

A.H. Masood for Appellant (on State expenses).

Zahid Hussain Khan for Appellant.

Ashfaq Ahmad for the State.

Shaheryar Sheikh for the Complainant.

Date of hearing: 1st February, 2001.

2001 P Cr. L J 1296

[Lahore]

Before M. Javed Buttur and Ali Nawaz Chawhan, JJ

HAMEEDAN BIBI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 69/B of 2001, decided on 3rd April, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9(c)‑‑­Bail‑‑‑Accused was caught red‑handed at the spot and two kilograms of Charas was recovered from her bag‑‑‑Accused gave birth to a child who was with her in jail‑‑‑Present trend according to the prosecution was that pregnant women were being used for smuggling of narcotics because it was easier for them to obtain bail on such ground‑‑‑No case for bail having been made out in favour of accused, the same was declined to her‑‑‑Newly born child who had committed no wrong could not be made to suffer in jail because of the necessitated company on account of the incarceration of her mother involved in the crime‑‑‑District Magistrate, in the circumstances, was directed to arrange for the removal of the accused and her child to be interned in Darul Aman immediately and to keep her there at State expense until her case was disposed of by the Trial Court, or for the suckling period of two years allowed by Islam‑‑‑State expense might be arranged by the District Magistrate through the Zakat Fund or any other fund meant for social welfare‑‑‑Bail application was disposed of accordingly.

Sunnah of Holy Prophet (p.b.u.h.); United Nations Charter of 1945; Convention on the Rights of the Child adopted by the United Nations General Assembly, on November 20 of 1989 and Cairo Declaration on Human Rights in Islam, dated 5th August, 1990 ref.

Shahid Mehmood Mughal for Petitioner.

Salma Malik, A.A.G. for the State.

2001 P Cr. L J 1305

[Lahore]

Before Iftikhar Hussain Chaudhry and Zafar Pasha Chaudhry, JJ

SAMI ULLAH TARIQ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 838 and Murder Reference No. 288 of 1995, heard on 22nd March, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Sifting of grain from chaff‑‑­Principle‑‑‑Grain has to be sifted from chaff in order to do complete justice and to ensure that real culprit may not escape from the legal punishment‑‑­Where, however, sifting of grain from chaff is not safe and the testimony of a witness does not inspire confidence, it will be unsafe to record conviction by singling out one of the accused persons as a real culprit merely because he was alleged to be the person who had opened the attack.

Tawab's case PLD 1970 SC 13 and PLD 1959 PC 24 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(a)‑‑‑Appreciation of evidence‑‑‑Deceased had lost his life as a result of a single fire shot‑‑‑Five accused persons according to the prosecution had resorted to firing and caused injuries to the deceased, the roles of some of the accused had specifically been defined‑‑‑Highly unsafe, in such a situation, to convict the accused merely because he was stated to be the first one to open the fire‑‑‑Another accused according to the prosecution had also caused injuries on the chest of the deceased by a fire shot in addition to the accused, and he had been acquitted by the Trial Court‑‑‑Real murderer might be amongst the five assailants, but if he could not safely be specified or picked up, then benefit of doubt was to be extended to all the accused persons in the interest of safer administration of justice‑‑‑Eye‑witness account was neither supported by medical evidence nor by the motive and no other credible evidence by way of recoveries etc. was available on record‑‑‑Accused was acquitted on benefit of doubt in circumstances.

Tawab's case PLD 1970 SC 13 and PLD 1959 PC 24 ref.

Aftab Farakh for Appellant. A.H. Masood for the State.

Date of hearing: 22nd March, 2001.

2001 P Cr. L J 1320

[Lahore]

Before Iftikhar Hussain Chaudhry and Zafar Pasha Chaudhry, JJ

Haji ALI SHAN ‑‑‑Petitioner

Versus

MUHAMMAD BAHADUR and others‑‑‑Respondents

Criminal Appeals Nos. 1077, 1069, 1079 of 1992 and Criminal Revision No. 94 of 1993, decided on 26th March, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Appreciation of evidence‑‑‑Sentence, enhancement of‑‑­Presence of the complainant was proved at the scene of occurrence by the promptly lodged F.I.R. containing the details of the occurrence‑‑‑Incident had taken place in the Court premises in the view of a large number of public functionaries and members of the public who when associated with investigation had supported the prosecution case‑‑‑Occurrence had taken place at the time and in the manner as claimed by the prosecution‑‑‑Ocular testimony was quite candid, forthright, confidence‑inspiring and believable which was fully supported even by medical evidence‑‑‑Report of the Forensic Science Laboratory regarding the pistols recovered from the accused and the crime‑empties secured from the spot did not affect adversely the prosecution case‑‑‑Conviction of accused was upheld in circumstances‑‑‑Non­-specification of injuries attributed to accused, however, was hardly a ground for awarding lesser sentence which would tantamount to nullification or dilution of the provisions of S.34 or 149, P.P.C.‑‑‑Law did not require allocation of each injury by the witnesses to a particular accused‑‑‑When participation and involvement of the accused in the commission of homicide was established, they were to be awarded the normal penalty of death prescribed by law‑‑‑Accused had slain the deceased at the portals of justice showing total disregard for the law, the Courts and the civil society‑‑­Accused had made a pre-planned attack on the deceased when he was present under the aegis of a Court of justice‑‑‑Choice of venue and the manner in which the offence was committed had showed the accused to be criminals to the cores of their hearts‑‑‑Accused did not deserve any leniency in the matter of sentence‑‑‑Sentence of imprisonment for life awarded to accused by Trial Court was enhanced to death accordingly.

The State v. Muhammad lqbal and 4 others 2001 PCr.LJ 376 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Appreciation of evidence‑‑‑Accused was found to be privy to the commission of the offence only but on the basis of statements of witnesses recorded during investigation two Investigating Officers had concluded that he had not taken part in the actual tiring at the deceased and that only other two accused had tired at the victim‑‑‑Benefit of doubt was extended to accused in circumstances for safe administration of justice and he was acquitted accordingly.

Sardar Muhammad Latif Khan Khosa for Petitioner.

Mian Abdul Qayyum Anjum for the State.

Sardar Faiz Muhammad Khosa. Mansoor Alamgir Qazi and Mian Ahmad Mahmood for Respondents.

Date of hearings 26th March. 2001.

2001 P Cr. L J 1347

[Lahore]

Before Asif Saeed Khan Khosa, J

GHULAM ABBAS alias KONI and 2 others‑‑‑Petitioners.

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 5011/B of 2000, decided on 20th September, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S. 497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11‑‑‑Bail‑‑‑F. I. R. suffered from a delay of 10/11 days ‑‑‑Abductee was not recovered from the custody of accused, rather she had been produced before the Investigating Officer by somebody having no concern with the case ‑‑‑Abductee had stayed with the accused for one month and ten days and had been travelling with them from place to place without raising any protest‑‑‑Statement of abductee recorded under S.161, Cr‑P.C. showed that she had not made any allegation of commission of Zina with her by anybody‑‑‑During her stay with the accused the abductee had filed a private complaint against her father, complainant of the present case, which had supported‑ the stand of the accused that she had gone with them of her own free‑will‑‑‑Family Court could only decide after recording evidence as to which of the two Nikahs entered into by the abductee was genuine‑‑­Case against accused in circumstances had called for further inquiry into their guilt as envisaged under S.497(2), Cr.P.C.‑‑‑Accused were admitted to bail accordingly.

Aftab Raheem for Petitioners.

Ch. Imtiaz Ahmad for the State.

Date of hearing: 20th September, 2000.

2001 P Cr. L J 1358

[Lahore]

Before Riaz Kayani, J

JAMSHED IQBAL‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.898 of 2000; heard on 25th January, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑-Appreciation of evidence‑‑‑No witness was found present at the scene of occurrence‑‑‑Incident had not taken place at the site pointed out by the prosecution witnesses‑‑‑Motive set up by the prosecution was not proved‑ ‑Occurrence having taken place in the dark hours of the night without having been witnessed by anybody, complainant on account of enmity between the parties seemed to have nominated the accused in the F.I.R. after deliberation as the main perpetrator of the crime‑‑‑Defence had created many dents in the prosecution case‑‑‑Accused was acquitted in circumstances.

Malik Noor Muhammad Awan for Appellant.

Muhammad Azam for the State

Date of hearing: 25th January, 2001.

2001 P Cr. L J 1383

[Lahore]

Before Khawaja Muhammad Sharif J

THE STATE‑‑‑Appellant

versus

JAVED IQBAL and others‑‑‑Respondents

Criminal Appeal No.655 of 1993, decided on 1st March, 2001.

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

‑‑‑‑S. 417‑‑‑Appeal against acquittal‑‑‑Principle‑‑‑Presumption of innocence of accused with the acquittal becomes double, firstly that because till found guilty he is presumed to be innocent and secondly for the reason that after Trial Court below has confirmed the initial assumption of his innocence; unless the grounds on which Trial Court has proceeded to acquit the accused are not supportable from evidence on record. Court will not interfere; unless the judgment of acquittal is perverse and the reasons for acquittal are artificial and ridiculous and Court will interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion of guilt of accused and that too with a view only to avoid grave miscarriage of justice and for no other purpose.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 409/34‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Criminal Procedure Code (V of 1898), S.417(l)‑‑‑Appeal against acquittal‑‑‑Trial Court had approached the case in an entirely improper manner by discussing the defence evidence first and discussing the prosecution case thereafter‑‑­Important pieces of documentary as well as oral evidence adduced by the prosecution had neither been discussed nor considered by the Trial Court in the impugned judgment‑‑‑Accused too had not controverted the statements of prosecution witnesses who had referred the documents bearing their signatures meaning thereby that the accused had accepted the entrustment of wheat and empty bags to them‑‑‑Accused had also not challenged the inventory register, stock report books mentioning the misappropriated gunny bags stock in their possession‑‑‑Trial Court had acted illegally in receiving in defence the attested photo copies of the documents purported to be reports of the Experts which were of no use, the same being inadmissible in evidence unless such Experts were examined in the Court and also in absence of the original documents‑‑‑Evidence on record had also been misread by the Trial Court ‑‑‑Abscondence of accused after the commission of the crime had further supported the prosecution case against them‑‑‑Misappropriation of 1441 metric tons of wheat and also 14736 gunny bags all valuing about thus, been proved against the accused who being public servants had committed the offence punishable under. S.409/34, P.P.C. read with S.5(2) of the Prevention of Corruption Act, 1947 and they were sentenced thereunder to undergo ten years' R.I. each on two counts with tine of Rupees twenty lacs each on each count‑‑‑Impugned judgment of acquittal was set aside accordingly.

Ashiq Hussain v. The State PLD 1994 SC 879; PLD 1965 Kar. 155 and 1968 SCMR 1126 ref.

Malik Abdus Salam for the State.

Raja Mehmood Akhtar, Muhammad Ashraf Wahla, Malik Ghulam Yasin and Malik Allah Yar Khan for Respondents.

Date of hearing: 26th February, 2001.

2001 P Cr. L J 1406

[Lahore]

Before Iftikhar Hussain Chaudhary and Zafar Pasha Chaudhary, JJ

MUMTAZ ALI KHAN‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.7759/B of 2000, decided on 14th March, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/427/148/149/109‑‑­Bail‑‑‑Accused was involved in the case on the ground of having confederated with conspired with and abetted his co‑accused in the commission of the offence‑‑‑Accused was aged about 70 years and suffering from heart ailment as well‑‑‑Bail was allowed to accused on the said grounds subject to his furnishing bail bonds for heavy amount‑‑‑Trial Court was, however, permitted to cancel the bail of accused in case he interfered with the evidence, obstructed the progress of the trial or misconducted in any manner.

Ijaz Hussain Batalvi and Akhtar Ali Qureshi for Petitioner.

Ehtisham Qadir for the Complainant.

Akhtar Zaman for the State.

2001 P Cr. L J 1419

[Lahore]

Before Tassaduq Hussain Jilani, J

MANZOOR AHMAD ‑‑‑ petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.264/B of 2001, decided on 27th March, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

---S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/16‑‑‑Bail‑‑‑No direct evidence of rape was available against the accused was mother of five children and was an elderly woman and her suit for dissolution of marriage was pending at the time of registration of the case‑‑‑Question of the guilt of accused, in circumstances, required further inquiry‑‑‑Accused was admitted to bail accordingly.

Mian.Fazal Rauf for Petitioner.

Syed Shahid for the State.

2001 P Cr. L J 1426

[Lahore]

Before Riaz Kayani, J

RAEAQAT HUSSAIN SHAH‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.517 and Criminal Revision No.489 of 2000, heard on 11th April, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Eye‑witnesses having failed to explain satisfactorily their presence at the spot were chance witnesses who had been brought subsequently, to bolster up the prosecution case‑‑­Credibility of the witnesses could not alone be determined on the touchstone of their having rancour or ill‑will against the accused‑‑‑Improvements had been made by the eye-witnesses to bring their testimony in line with medical evidence which being tainted did not inspire confidence‑‑‑Absence of crime‑empties from the house, the venue of incident, which was not accessible to others had laced the prosecution case with serious doubts ‑‑‑F.I.R. was not only recorded after preliminary investigation but all the investigation proceedings were misdirected and dishonest which could not be relied upon‑‑‑Benefit of all the infirmities in prosecution case was to go to the accused‑‑‑Accused was extended benefit of doubt and acquitted in circumstances.

M.A. Zafar for Appellant.

Tariq Amin Khalid for the Complainant.

Ch. Ali Muhammad for the State.

Date of hearing: 11th April, 2001.

2001 P Cr. L J 1434

[Lahore]

Before Iftikhar Hussain Chaudhary and Zafar Pasha Chaudhary, JJ

GHULAM NABI‑‑‑Petitioner

versus

BASHIR AHMAD and another‑‑‑Respondents

Criminal Miscellaneous No.6310/CB of 2000, decided on 12th April, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(5)‑‑‑Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.5‑A(8)‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Pre­arrest bail, grant of‑‑‑Power to grant such bail, when not existing‑‑­Cancellation of bail‑‑‑Case in which the accused was involved was triable by the Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975 which being a special law its provisions would override the provisions of general law‑‑‑Special Court had no plenary powers to grant bail to accused which Criminal Courts possessed by virtue of Ss.497 & 498, Cr.P.C., but it had been given the power to grant bail only under subsection (8) of S.5‑A of the aforesaid Act which by no stretch of imagination could be construed as empowering the Special Court to grant bail at pre‑arrest stage‑‑‑Special Court, therefore, had no jurisdiction to grant pre‑arrest bail to accused under 5.498, Cr.P.C. who was alleged to have committed a scheduled offence‑‑‑Pre‑arrest bail allowed to accused by Special Court was consequently cancelled.

Muhammad Taqi Khan for Petitioner.

Naseer‑ud‑Din Nayyar for Respondent No. 1.

Qayyum Anjum for the State.

2001 P Cr. L J 1440

[Lahore]

Before Zafar Pasha Chaudhary, J

MUHAMMAD HANEEF‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1427/B of 2001, decided on 9th April, 2001.

Criminal Procedure Code (V of 1898)‑‑-

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(2)‑‑‑Penal Code (XLV of 1860), S.494‑‑‑Bail‑‑‑No legal evidence, prima facie, was available with the prosecution against the accused to burden him with the knowledge that before marrying the woman she had not been divorced by her previous husband and in spite of that he contracted marriage with her‑‑‑Case against accused was, thus, open to further inquiry and he could not be kept in jail as a matter of punishment‑‑‑Accused was admitted to bail accordingly.

Muhammad Saleem for Petitioner.

Ch. Imtiaz Ahmad for the State.

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2001 P Cr. L J 1453

[Lahore]

Before Riaz Kayani, J

INAYAT BIBI‑‑‑Petitioner

versus

AMJAD ALI and others‑‑‑Respondents

Writ Petition No.23185 of 1999, decided on 9th April, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 45 & 199‑‑‑Penal Code (XLV of 1860), Ss.54 & 55‑‑‑Criminal Procedure Code (V of 1898), Ss.410, 402, 402‑A, 402‑B & 382‑B‑‑­Constitutional petition‑ ‑‑Remission in sentence awarded to accused‑‑­Validity‑‑‑Accused were sentenced to imprisonment for life each under S.302/34, P.P.C. on 31‑8‑1998‑‑‑President of Pakistan no doubt, in exercise of his powers under Art.45 of the Constitution could grant remission or pardon to any prisoner who had been convicted and sentenced under any offence contained in general law or any special law‑‑‑Validity of Notification dated 28‑8‑1997 issued by the President of Pakistan was assailed whereby 1/5th of the total sentence was waived by way of remission‑‑‑Said remission had been awarded for a particular purpose of celebrating the Golden Jubilee of the Independence of the State of Pakistan and was only applicable to those prisoners who were undergoing the sentence in the month of August, 1997‑‑­Question of remission and sentence would arise only after the trial was over and judgment was delivered‑‑‑Accused having been convicted for the first time on 31‑8‑1998 could not get the benefit of the said Notification, dated 28‑8‑1997‑‑‑Importing any remission granted by any Competent Authority under the law to the provisions of 5.382‑B, Cr.P.C. would be doing violence to the said provisions‑‑‑Remission granted by the President had derived its origin from Art.45 of the Constitution whereas provision for counting the period of detention before conviction was contained in S.382‑B, Cr.P.C. and both these provisions of law being independent of each other had no clash whatsoever between them‑‑‑Contention that since the substantive sentence commenced from the date of arrest of the accused as such benefit of the remission granted through the Notification, dated 28‑8‑1997 be extended to them was, therefore, devoid of force as provisions of 5.382‑B, Cr.P.C. would apply only after passing of conviction followed by a sentence‑‑­Remissions granted by the Provincial Government on 28‑4‑1996 for two months and again on 27‑2‑1997 for two months were clearly violative of the provisions‑of Ss.54 & 55, P.P.C. and Ss.410, 402, 402‑A & 402‑B, Cr.P.C. alongwith the relevant parts of its schedule and had to be struck down being repugnant to the amendments made in the referred to provisions of law on 13‑8‑1990‑‑‑Grants of the impugned remissions to the accused were consequently, declared to be inapplicable and contrary to law‑‑­Constitutional petition was accepted accordingly.

Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others PLD 1992 SC 595; Muhammad Ameer and another v. Abdul Qadir and 2 others 1998 PCr.LJ 921 and Habib‑ul‑Wahab Alkhairi and others v. Federation of Pakistan PLD 1991 FSC 236. ref:

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity, or some repugnancy or inconsistency with the rest of the enactment‑‑‑Where the meaning of an enactment is clear, to apply that meaning is to give it a literal construction‑‑‑If the language of a provision is clear and unambiguous, it should be accepted as such without hesitation or demur as words themselves alone in such a case best declare the intention of the Legislature.

Ch. Farooq Haider for Petitioner.

Ijaz Hussain Batalvi for Respondents Nos.1 and 2.

Nasim Sabir Chaudhry, Addl. A.‑G.

A.H. Masood for the State.

Date of hearing: 2nd April, 2001.

2001 P Cr. L J 1465

[Lahore]

Before Iftikhar Hussain Chaudhary, J

THE STATE‑‑‑Appellant

versus

Rana MUHAMMAD SALEEM‑‑‑Respondent

Criminal Appeal No. 1721 of 2000, heard on 9th April, 2001.

Agricultural Pesticides Ordinance (II of 1971)‑‑‑

‑‑‑‑Ss. 21(a) & 22 [as substituted by Agricultural Pesticides (Amendment) Act (XXXIX of 1997)]‑‑‑Criminal Procedure Code (V of 1898), 17(1)‑‑­Appeal against acquittal‑‑‑Competence to file‑‑‑Assistant Advocate General being a Public Prosecutor was competent to file an appeal against acquittal under S.417, Cr.P.C.‑‑‑Samples of pesticides recovered from the business premises of the accused at the time of raid were found to be adulterated on analysis‑‑‑Accused had also tendered in his defence a copy of rep' claimed to have been issued by NARC showing the sample handed over t0 m to be of specified quality‑‑‑None from the office of NARC had come ward to verify the said report‑‑‑Trial Magistrate had himself written a letter NARC and on receipt of letter therefrom had accepted the report as be` gospel truth and proceeded to give its benefit to the accused which eras an unwarranted and uncalled for exercise‑‑‑Report tendered by the used in his defence had to be proved by a competent person from NARC a having appeared in the witness‑box in defence of the accused which was done Order of acquittal passed by Magistrate was set aside in circumstances and the case was remanded to him for holding de novo proceedings in accordance with law.

Mrs. Salma Malik, A.A.‑G. for the State.

Ghulam Farid Sanotra for Respondent.

Date of hearing: 9th April, 2001.

2001 P Cr. L J 1470

[Lahore]

Before Muhammad Nawaz Abbasi and M. Javed Buttur, JJ

MUHAMMAD HANIF and 6 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1108/B of 2000, decided on 20th March, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

-----S.497-----Penal Code (XLV of 1860), Ss.365-A/324/380/148/149-----Bail-----Statement of abductee recorded under S.161,Cr.P.C.after his release by the accused was not in material conflict with the story of the private complaint------Omission of the facts in the F.I.R which were not in the knowledge of the first informant would not suggest, different from each other‑‑‑Complainant party having noticed partiality of police in investigation had filed the private complaint with introduction of additional facts which could not be made part of the F.I.R.‑‑‑No enmity existed between the parties and the question of the complainant party having cooked up a false story of abduction and release of the abductee against payment of one crore rupees did not arise‑‑‑Reasonable grounds, prima facie, were available to believe the accused being guilty of the offences charged with‑‑­Submission of bail bonds by the accused under S.91, Cr.P.C. upon issue of process in a private complaint under S.204, Cr.P.C. would not ipso facto bring the police case involving' capital punishment with the ambit of S.497(2), Cr.P.C.‑‑‑Case was of extremely serious nature and the fact that the trial was not concluded within the time given by High Court was not a convincing ground for grant of bail, trial however, was in progress‑‑‑Bail was declined to accused in circumstances.

Maqsood Begum v. Muhammad Maroof 1998 PCr.LJ 56; Muhammad Ismail v. Muhammad Rafique PLD 1989 SC and Allah Ditta and others v. The State 1990 SCMR 307 ref.

Abdul Basit for Petitioner.

Babar Awan for the Complainant.

Babar Bilal for the State.

2001 P Cr. L J 1497

[Lahore]

Before Khawaja Muhammad Sharif, J

IRSHAD AHMAD‑‑‑Petitioner

versus

THE STATE and 4 others‑‑‑Respondents

Criminal Revision No.791 of 2000, decided on 25th April, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 540‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.11‑‑‑Summoning of material witness‑‑‑Petitioner, father of the abductee, wanted himself to be examined as a Court‑witness in the case‑‑­Trial Court was directed to go through the case diaries and find out if the petitioner was joined in the investigation and interrogated during the course of investigation by the Investigating Officer, but due to some inadvertence or negligence he did not record the statement of the petitioner, then the Trial Court could summon the petitioner as a Court‑witness‑‑‑Revision petition was disposed of with the said observations.

Muhammad Rafique v. The State 2000 MLD 244 ref.

Qazi Misbah‑ul‑Hassan for Petitioner.

Mian Abbas for Respondents.

2001 P Cr. L J 1503

[Lahore]

Before Tassaduq Hussain Jilani, J

MUBASHAR alias MUBASHARI‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Revision No.384 of 1996, decided on 4th December; 1996.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 540‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Production of documents in evidence‑‑‑Accused who claimed to be fourteen years' old at the time of occurrence filed application to place on record his birth certificate in proof of his claim‑‑‑Said application was dismissed by Trial Court with the observation that the accused could take up the said plea while making statement under S.342, Cr.P.C.‑‑‑Accused at the time of his examination under S.342, Cr.P.C. produced birth certificate in proof of his claim which was placed on record‑‑‑Complainant thereafter filed application alleging that birth certificate produced by the accused in proof of his claim was a forged one which application was allowed by the Court and the accused challenged the order of the Court contending that there was no provision in Criminal. Procedure Code for granting permission to the prosecution to produce additional evidence in rebuttal and that provision of S.540, Cr.P.C. could not be invoked to fill in the lacuna in the prosecution case ‑‑‑Validity‑‑­Accused, during recording of his statement under 5.540, Cr.P.C. having produced on record birth certificate for the first time, the prosecution was within its right to produce evidence in rebuttal‑‑‑Section 540, Cr.P.C. was enacted to cater to eventualities, which arose in the case‑‑‑View that prosecution, should be allowed to fill in lacuna and gaps, could not be stretched too far which could amount to devoid justice‑‑‑Section 540, Cr.P.C. was not dependent on an applic4tion moved on either side, even the Court itself could summon a witness or requisition evidence which according to it was imperative for a just decision of the case.

Nazir Ahmad v. The State 1996 PCr.LJ 757; Saeed Shah v. The State 1986 PCr.LJ 379 and National Bank of Pakistan v. Mumtaz Ahmad and others 1984 SCMR 1436 ref.

Ch. Liaqat Ali Sandhu for Petitioner.

Hasnat Ahmad Khan, Asstt. A.‑G. for the State.

Date of hearing: 4th December, 1996.

2001 P Cr. L J 1512

[Lahore]

Before Muhammad Naseem Chaudhri, J

MUHAMMAD BASHIR AHMAD and 3 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1276/B of 1999, decided on 21st July, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑5.497‑‑‑Penal Code (XLV of 1860), Ss.337‑A(ii), 337‑F(i), (iv), 337‑F(v)(vi), 337‑L(ii) & 324/148/149‑‑‑Bail, grant of‑‑‑Sharp side of hatchet having not been used in occurrence by the accused, attraction of S.324, P.P.C. was a question of further inquiry‑‑‑Sections 337‑A, 337‑F & 337‑L, P.P.C. did not fall within the prohibitory clause of 5.497, Cr.P.C.‑‑­Considerable time had elapsed after the arrest of the accused but no charge had been framed against them‑‑‑Accused, were . entitled to bail in circumstances.

Abdul Aziz Khan Niazi for Petitioners.

Javed Iqbal for the State.

Date of hearing: 21st July, 1999.

2001 P Cr. L J 1513

[Lahore]

Before Riaz Kayani, J

Sheikh MUHAMMAD ISHFAQUE‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3416/B of 2000, decided on 31st July, 2000, Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.420/467/468/471/506‑‑‑Bail‑‑­Accused had not signed any document indemnifying the buyers from any defect which occurred subsequently‑‑‑Record did not suggest commission of the offence by the accused‑‑‑Simple high sounding allegations levelled in the F.I.R. could not connect the accused with the offence‑‑‑Case against the accused needed further probe‑‑‑Accused was admitted to bail in circumstances.

Nafeer Ahmad Malik for Petitioner.

Wali M. Khan for the State.

Date of hearing: 31st July, 2000.

2001 P Cr. L J 1528

[Lahore]

Before Syed Jamshed Ali and Syed Zahid Hussain, JJ

MUHAMMAD SARWAR and another‑‑‑Petitioners

versus

FEDERATION OF PAKISTAN, MINISTRY OF LAW AND PARLIAMENTARY AFFAIRS through Secretary, Islamabad and 6 others‑‑‑Respondents

Writ Petition No. 11583 of 1998, decided on 5th April, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 365/337/337‑F(i)/148/149‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Transfer of case from Special Court to Ordinary Criminal Court‑‑‑Offence having been committed on account of previous enmity and for a definite motive, case was not triable by the Special Court constituted under the Anti‑Terrorism Act. 1997‑‑‑Prosecution had conceded to the legal proposition‑‑‑Case was consequently ordered to be transferred from the Special Court to the Court of ordinary criminal jurisdiction with the direction to transferee Court to proceed with the trial from the stage left by the Special Court‑‑‑Constitutional petition was accepted accordingly.

Mehram Ali v. Federation of Pakistan PLD 1998 SC 1415 ref.

Syed Murtaza Ali Zaidi for Petitioners.

Khadim Nadeem Malik, A.A.‑G. for Respondents.

Date of hearing: 5th April, 1999. .

2001 P Cr. L J 1545

[Lahore]

Before Riaz Kayani and Khawaja Muhammad Sharif, JJ

MUHAMMAD ASLAM and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 106, 123 and Murder Reference No. 164‑1 of 1999, decided on 22nd December, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34, 397 & 458‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑­Appreciation of evidence‑‑‑No identification parade was held in the case‑‑­Accused according to prosecution were armed with pistols but no fire‑arm injury was received either by the deceased or the injured prosecution witness who had sustained only sharp‑edged weapon injuries‑‑‑No corroborative evidence was available on record against the accused to connect them with the occurrence‑‑‑Prosecution was not in a position to rebut the contentions raised in defence‑‑‑Accused were acquitted in circumstances.

Malik Muhammad Ashhab for Appellants.

Ch. Muhammad Bashir, A.A.‑G. for the State.

Date of hearing: 22nd December, 1999.

2001 P Cr. L J 1558

[Lahore]

Before Ali Nawaz Chowhan, J

JAVED AKHTAR alias ASHRAF‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1 of 1999 in Criminal Appeal No.260 of 1997, decided on 11th November, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 426(1)‑‑‑Penal Code (XLV of 1860), S.302(b)‑‑‑Suspension of sentence‑‑‑Accused was in the lock‑up since over two years and his appeal was not likely to be heard in the very near future‑‑‑Sentence of imprisonment for life awarded to accused by Trial Court was suspended in circumstances and he was admitted to bail with the direction to appear in person whenever called for purpose of hearing of his appeal.

Khuda Bux v. State 1994 PCr.LJ 2359 and Liaqat Ali v. State PLD 1995 SC 429 ref.

Altaf Ibrahim Qureshi for Petitioner.

Date of hearing: 11th November, 1999.

2001 P Cr. L J 1559

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman and Asif Saeed Khan Khosa, JJ

SOBDAR KHAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.268 and Murder Reference No.212 of 1995, decided on 5th November, 1998.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Sentence‑‑‑Mitigating circumstance‑‑‑Occurrence had taken place in daylight‑‑‑Ocular testimony was consistent and confidence inspiring and could not be discarded merely on account of relationship between the eye‑witnesses and the deceased ‑‑‑Bald verbal assaults on the integrity of eye‑witnesses could never dislodge concrete evidence furnished by them‑‑‑Promptly lodged F.I.R. contained all the relevant details of the occurrence including the name of the accused as well as the role played by him during the occurrence‑‑‑Medical evidence had fully supported the ocular account of occurrence‑‑‑Motive set up by the prosecution was the only basis which had propelled the accused to launch the fatal aggression against the deceased‑‑‑Mere exchange of abuses or pushing and shoving was not sufficient provocation for justifying a murder or claiming a lesser sentence on a capital charge‑‑‑Similarly a refusal of a marriage proposal by the father of a girl although expressed in a shabby manner could not justify his murder‑‑‑Acceptance of such a plea for the purpose of mitigation of sentence on a proven charge of murder would also offend against public policy based on peculiar social norms‑‑‑Conduct of the accused despite availability of a cooling off period depicted that he had committed the murder not under the impulse of provocation but in a planned and cold‑blooded manner for which he deserved no leniency‑‑‑Mitigation of sentence on a capital charge on the ground of old age of the accused alone was not justified by any statutory provision or judicial precedent‑‑‑Record did not show that the accused had either become mentally senile or physically infirm‑‑‑If the mental faculties of the accused were sharp enough to plan a murder and his hands were firm enough to shoot at his victim with precision, then he must have also thought of the consequences of his action before pulling the trigger‑.‑‑Conviction and sentence of death of accused were confirmed in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(c)‑‑‑Conviction‑‑‑Recovery‑‑‑No report from Forensic Science Laboratory connecting crime empty with the weapon recovered from the accused was on the record‑‑‑Recovery of such weapon from accused during investigation was inconsequential‑‑‑Discarding of evidence of recovery of weapon of offence would not necessarily cast doubt on the ocular account and in appropriate case, conviction could still be maintained on a confidence-­inspiring ocular account which was supported by medical evidence and corroborated by evidence of motive as well as circumstances of prompt lodging of F.I.R.

Sahibzada Farooq Ali Khan for Appellant.

Sheikh Muhammad Rahim for the State.

Date of hearing: 5th November, 1998.

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2001 P Cr. L J 1582

[Lahore]

Before Tassaduq Hussain Jilani, J

MUHAMMAD BASHIR‑‑‑Petitioner

versus

Mrs. FARHAT BIBI and others‑‑‑Respondents

Criminal Miscellaneous Nos.2616/BC and 2617/BC of 1996, decided on 17th October, 1996.

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

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.302/407‑‑‑Cancellation of bail‑‑‑Confessional statement of the female accused had been recorded by the Magistrate according to the mandatory provisions of S.164, Cr.P.C. which had not only involved her but also fully implicated her co‑accused in the commission of the crime‑‑‑Nature of injuries received by the deceased and absence of signs of resistance on his body indicated that, prima facie, the injuries were caused when he was asleep‑‑‑Female accused, prima facie, had committed the murder of her husband in league with her male co‑accused in a manner which betrayed illicit liaison, treachery and deceit‑‑‑Reasonable grounds existed to believe that the accused were connected with the commission of the offence and the bail granted to them by the Sessions Court was not a proper exercise of discretion‑‑‑Law, no doubt, extended special indulgence to a woman, but the discretion vested in a Court had to be exercised judiciously‑‑‑Sessions Court while granting bail to accused had not considered the documents available on record and had misread the evidence‑‑‑Bail allowed to accused was cancelled in circumstances.

PLD 1994 SC 86; 1995 SCMR 1178; 1995 SCMR 932 and 1982 SCMR 321 distinguished.

Mst: Taj Bibi v. The State PLD 1989 Quetta 60; Mst. Anna v. The State PLD 1989 Kar. 40 and Mst. Akhtar Bibi v. State 1989 PCr.LJ 831 ref.

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

‑‑‑‑S. 497(1), first proviso‑‑‑Bail to women‑‑‑First proviso of S.497(1), Cr.P.C. with regard to accused women, no doubt, is suggestive of a liberal treatment for the grant of bail, but it does not ipso facto entitle them to bail irrespective of the gravity of the offence and the attending circumstances.

Mst. Taj Bibi v. The State PLD 1989 Quetta 60; Mst. Anna v. The State PLD 1989 Kar. 40 and Mst. Akhtar Bibi v. State 1989 PCr.LJ 831 ref.

Kh. Muhammad Sharif and Kh. Muhammad Afzal for Petitioner.

Iqbal Mahmood Khokhar for the State.

Farooq Bedar asted by Ch. Zafar Iqbal and Malik Nazir Farid for Respondents. .

Muhammad Tariq assisted by Miss Roshan Ara for Respondent.

Date of hearing: 17th October, 1996,

2001 P Cr. L J 1590

[Lahore]

Before Khawaja Muhammad Sharif, J

MANSHA and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.481 of 1994, heard on 21st October, 1999.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Eye‑witnesses who were closely related to the deceased were chance witnesses and their presence at the scene of occurrence .at 2‑00 a.m. in the night did not seem to be probable and natural‑‑‑None from the inmates of the house where the occurrence had taken place was cited as a witness. nor produced before the Trial Court‑‑‑Doctor at the time of post‑mortem did not give any opinion about the cause of death of the deceased which was given 14 months after the post‑mortem without any plausible explanation for such delay ‑‑‑Co‑accused had been acquitted on the same set of evidence‑‑‑Ocular testimony not being in consonance with medical evidence, eye‑witnesses did not appear to have seen the occurrence‑‑‑Question of false implication of accused in the case could not be ruled out‑‑‑Accused were acquitted on benefit of doubt in circumstances.

Muzaffar Iqbal Chaudhry for Appellants.

Miss Tehseen Taskeen for the State.

Date of hearing: 21st October, 1999.

2001 P Cr. L J 1593

[Lahore]

Before Tassaduq Hussain Jilani, J

MUHAMMAD NADEEM ABBAS and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.64/B of 2000, decided on 18th January, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.342/337‑F(i)(ii)/337‑A(ii)/ 148/149‑‑‑Pre‑arrest bail‑‑‑Accused alongwith others had been assigned a specific role of causing Soti blows to the injured witness who had received as many as nine injuries‑‑‑Interim pre‑arrest bail already granted to accused was not confirmed in circumstances‑‑‑Other accused, however had not belaboured the injured witness and he was only alleged to have threatened the prosecution witnesses and his false involvement on account of enmity and litigation could not be ruled out at such stage‑‑‑Interim pre‑arrest bail granted to said accused was confirmed in circumstances.

Arshad Ali Chohan for Petitioners.

Ch. Mehmood Akhtar for the Complainant.

Sh. Mehmood Ahmad for the State.

Date of hearing: 18th January, 2000.

2001 P Cr. L J 1596

[Lahore]

Before Ch. Ijaz Ahmad, J

ASLAM KHAN‑‑‑Petitioner

versus

DIRECTORATE REVENUE RECOVERY, P.T.C.L., LAHORE TELEPHONE REGION, LAHORE and 2 others‑‑‑Respondents

Criminal Miscellaneous No.561/H of 2001, decided on 27th April, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 491‑‑‑Habeas corpus petition ‑‑‑Maintainability‑‑‑Detenu having failed to pay amount of telephone bill, Authorities sent letter to him to repay the said amount ‑‑‑Detenu challenged the letter in civil suit alongwith application for stay order which application was accepted by Civil Court‑‑‑Stay order issued in favour of detenu having expired after expiry of six months as provided under O.XXXIX, Rr.2, (2‑B) & (4‑A), C.P.C., the Authorities detained the detenu‑‑‑Petitioner had challenged detention order in application filed by him under 5.491, Cr.P.C.‑‑‑Validity‑‑‑Case being of factual inquiry, High Court had no jurisdiction to decide the disputed questions of fact in habeas corpus petition by recording evidence‑‑‑If the detention was regularised subsequently, the habeas corpus petition would not be maintainable‑‑‑Even otherwise petitioner having alternative remedy under the provisions of West Pakistan Land Revenue Act, 1967, habeas corpus petitioner ­was not maintainable.

Nasir Muhammad's case PLD 1997 SC 852; Noor Silk Mills Ltd.'s case 1984 CLC 2048; Federation of Pakistan v. United Sugar Mills PLD 1977 SC 397; Raja Talat Mehmood's case 1999 SCMR 2215; Zahoor Textile Mills' case PLD 1999 SC 880; Qadir's case PLD 1958 Pesh. 38; Ghulam Muhammad's case PLD 1975 Kar. 118; Imdad Hussain's case PLD 1974 Kar. 509 and Basma Tabassum's case 2000 PCr.LJ 898 ref, Asim Akram for Petitioner.

2001 P Cr. L J 1599

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD RAFIQUE‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Revision No.283 of 1999, heard on 11th January, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 514‑‑‑Penal Code (XLV of 1860), Ss.380/411‑‑‑Forfeiture of surety bond‑‑‑Reduction in surety amount‑‑‑Petitioner had stood surety only on humanitarian ground and he did not take any benefit out of the surety bond‑‑‑Impugned order passed by Trial Court was harsh and the prosecution had no objection to the reduction of the surety amount of the petitioner‑‑‑Surety amount of Rs.50,000 was reduced to Rs.25,000 in circumstances which was to be recovered from the petitioner in accordance with law.

Syed Murtaza Ali Zaidi for Petitioner.

Muhammad Sarwar for the State.

Date of hearing: 11th January, 2000.

2001 P Cr. L J 1606

[Lahore]

Before Naeemullah Khan Sherwani, J

MUHAMMAD IBRAHIM ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1076/B of 1999, decided on 29th June, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.337‑A(i)/337‑A(ii)/337‑F(i)/ 34‑‑‑Bail, grant of‑‑‑Excessive and unwarranted delay of about 20/21 hours occurred in lodging the F.I.R. without any plausible explanation for the same‑‑‑Injuries on person of the victim were not of serious nature, but were merely petty abrasions‑‑‑Motive part of the occurrence described in F.I.R was not confidence‑inspiring and what led to the occurrence, was also shrouded in mystery ‑‑‑Co‑accused was already on bail and offences with which the accused and his co‑accused were charged, were not punishable with ten years or more and were not covered by the prohibitory clause of S.497, Cr.P.C.‑‑‑No exceptional circumstances were on record to disentitle the accused from the grant of bail‑‑‑Trial was likely to consume a long time and further detention of the accused would be of no avail to the prosecution‑‑‑Accused was entitled to grant of bail in circumstances.

Arshad Ali Chohan for Petitioner.

Sh. Naseem Rashid for the State.

Date of hearing: 29th June, 1999.

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2001 P Cr. L J 1615

[Lahore]

Before Iftikhar Hussain Chaudhary and Zafar Pasha Chaudhary, JJ

IFTIKHAR AHMAD‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1558 of 2000, heard on 20th February, 2001.

West Pakistan Arms Ordinance (XX of 1965)‑‑‑

‑‑‑‑S. 13‑‑‑Appreciation of evidence‑‑‑Accused had pleaded that rifle allegedly recovered from him in fact was a licensed weapon of a person who visited his Dera alongwith his rifle and when police conducted the said, the rifle was lying there and police took it into possession treating the same as a illicit weapon‑‑‑Prosecution had not denied that rifle was a licensed weapon of ‑the said other person‑‑‑Rifle, in circumstances, could not be treated as an illicit one‑‑‑Allegations that rifle was recovered from the possession of the accused, in fact had reduced to a mere technical offence because the necessary ingredient of guilt i.e. mens rea was lacking in the case‑‑‑If a licensed weapon was just left by the licence holder at the place of some of his relatives or friend, its recovery as an illicit arm should not have readily been accepted‑‑‑Possibility of explanation tendered by the accused being true, the same could not be ignored‑‑‑Extending benefit of doubt to the accused, conviction and sentence awarded to him by Courts below, were set aside, in circumstances.

M. Azmat Ali for Appellant.

Iram Sajjad Gul for the State.

Date of hearing: 20th February, 2001.

2001 P Cr. L J 1621

[Lahore]

Before Khawaja Muhammad Sharif, J

Mian MUHAMMAD ASIF‑‑‑Petitioner

versus

S.H.O., POLICE STATION, LYTTON ROAD, LAHORE and 4 others‑‑‑Respondents

Writ Petition No.2924 of 2000, decided on 14th April, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑‑Art. 199‑‑‑Criminal Procedure Code (V of 1898), Ss. 154 & 195(1)(c)‑‑­Penal Code (XLV of 1860), Ss.420, 468 & 471‑‑‑Constitutional petition‑‑­Quashing of F.I.R.‑‑‑Allegation against the petitioner was that he on the basis of general power of attorney executed in his favour by original owners of the land in question, entered into agreement with the complainant to sell two plots on consideration whereas general power of attorney in favour of petitioner had since been cancelled and that the petitioner had concealed the fact of such cancellation‑‑‑Case against the petitioner was still under investigation and the allegation levelled in the F.I.R. against the petitioner prima facie appeared to be true‑‑‑Petitioner was duty‑bound to have informed the complainant before selling the plots that the general power of attorney in his name had already been cancelled, but he failed to do so‑‑‑No case for quashing of F.I.R. having been made out, Constitutional petition filed by petitioner in that respect was dismissed.

Dr. Abdul Basit for Petitioner.

Sultan Mehmood Dar for the Complainant.

Muhammad Azmat Saeed, Legal Advisor, L.D.A.

Date of hearing: 14th April, 2000.

2001 P Cr. L J 1689

[Lahore]

Before Muhammad Asif Jan, J

MUHAMMAD BOOTA and others‑‑‑Petitioners 6versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.59/B of 1999, decided on 26th February, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.338‑A‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑‑Bail, grant of‑‑‑Indefinite delay in lodging of F. I. R., per se had cast doubt on truthfulness of prosecution case, especially when both the accused had been found innocent by the Deputy Superintendent of Police who prepared the discharge report‑‑­In absence of reasonable grounds to believe that the accused were guilty of an offence punishable with death, imprisonment for life or imprisonment for ten years, case against the accused was of further inquiry‑‑‑Accused were entitled to grant of bail.

Zahid Hussain Khan for Petitioners.

Saleem Shad for the State.

M. Arif Rafique Sindhu for the Complainant.

2001 P Cr. L J 1694

[Lahore]

Before Zafar Pasha Chaudhary, J

SHER MUHAMMAD ‑‑‑Petitioner

versus

FAIZ AHMAD and another‑‑‑Respondents

Criminal Miscellaneous No. 1912/CB of 1998, decided on 9th July, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, cancellation of‑‑‑One of the accused who was proved to be minor was rightly granted bail‑‑‑Application for cancellation of bail of said accused was dismissed‑‑­Other accused in previous two investigations was found guilty and not entitled to concession of bail on merits, but after about two months the Investigating Officer declared him innocent entitled to concession of bail‑‑­Opinion of the Police Officer though had relevance for grant or refusal of bail, but any opinion of Police Officer had not to be blindly followed‑‑­Investigating Officer should have referred to the material on which his opinion of innocence of the accused was based‑‑‑Mere reference to the opinion of the Investigating Officer and that too in a murder case which was supported by the eye‑witnesses, the grant of bail in such a manner was deprecated‑‑‑Order for grant of bail to the accused being totally perverse, was not maintainable‑‑‑Bail granted to the accused was cancelled, in circumstances.

Zahid Hussain Khan for Petitioner.

Zahid Zaheer Syed for Respondents Nos. 1 and 2. A.H.

Masood for the State.

2001 P Cr. L J 1706

[Lahore]

Before Ch. Ijaz Ahmad, J

AMJAD ALI ‑‑‑Petitioner

versus

MUHAMMAD SARWAR and others‑‑‑Respondents

Criminal Miscellaneous No.568/H of 1999, heard on 28th April, 1999.

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

‑‑‑‑S. 491‑-‑Habeas corpus petition‑‑‑Petitioner had claimed that age of the detenue was 22 years and she being sui juris was competent to solemnize marriage with the petitioner and that the Nikahnama was executed with the consent of the mother of the detenue‑‑‑Respondents, who claimed that mother of the detenue had left the minor children including the detenue with them after death' of her husband, had challenged the correctness of Nikahnama, alleging that the age of detenue was less than thirteen years‑‑­High Court neither had jurisdiction to give finding qua the Nikahnama nor to record the evidence and it was the duty and obligation of the Family Court to decide as to whether Nikahnama was valid or not‑‑‑Petitioner having filed petition with unclean hands, discretion could not be exercised in his favour.

PLD 1997 SC 852 and Azam's case PLD 1984 SC 95 ref.

(b) Discretion‑‑‑

‑‑‑‑Exercise of‑‑‑He who seeks equity must come with clean hands‑‑‑Petition having been filed with unclean hands, discretion was not exercised in favour of the petitioner.

Khan Zahid Hussain Khan for Petitioner.

Mohsin Rashid Chaudhary for Respondent No. 1.

2001 P Cr. L J 1709

[Lahore]

Before Khawaja Muhammad Sharif, J

THE STATE‑‑‑Petitioner

versus

M. AFZAL and others‑‑‑Respondents

Criminal Miscellaneous No.2619/M of 2000, heard on 5th January, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 192 & 197‑‑‑Fabrication of false evidence and issuance of false certificate by doctors ‑‑‑Detenu, in the present case, in his statement made on oath before High Court complained of physical torture at the hands of police and he was directed by the High Court to be medically examined by the Deputy Medico‑legal Surgeon‑‑‑Medical Officer in the office of the Medico­legal Surgeon examined the detenu and his medical report was duly verified by the Deputy Surgeon Medico‑legal, according to which no recent mark of physical violence was seen on the body of the detenu at the time of his examination ‑‑‑Detenu was, then, got medically examined by the High Court by the Medical Board constituted by Medical Superintendent of the Hospital which found many injuries on the person of the detenu‑‑‑High Court in view of the conflicting medical reports and to resolve the controversy directed the detenu to be again examined by the Medical Board to be constituted by the Additional Secretary Health, Government of the Province of the Doctors of known integrity and skill in their profession, which also depicted injurig on the person of the detenu‑‑‑Charge was consequently framed against the .Doctors to which they pleaded not guilty and they were tried accordingly‑‑­Defence plea that the injuries on the person of the detenu had been fabricated after his examination by the accused was negated by the duration of the injuries given by the First Medical Board which corresponded with the time of physical violence alleged by the detenu‑‑‑Medical examination of the detenu had been conducted only by the two Doctors, that is, a Medical Officer and the other Deputy Surgeon Medico‑legal, in deviation from the standing instructions issued by the Health Department which was not understandable‑‑‑Injuries on the person of the detenu, thus, were present, but the accused Doctors had tried to deceive the Court by fabricating a false certificate and committed the offences under Ss.192 & 197, P.P.C. punishable under S.193, P.P.C.‑‑‑Accused (Doctors) who belonged to a noble profession had committed most heinous, unsocial and immoral offence which was not ,expected of them and they deserved no leniency‑‑‑Accused Medical Officer was consequently convicted under Ss.192 & 197, P.P.C. and sentenced to five years' R.I. on each count with fine directing the sentences to run concurrently‑‑‑Accused Deputy Surgeon Medico‑legal was convicted under S.197, P.P.C. and sentenced to suffer five years' R.I. with fine.

Ch. Aurangzeb and Mian Muhammad Jamil for the Accused.

Muhammad Hanif Khatana, Addl. A.‑G./S.P.P. for the State.

Khalid Naveed Dar: Amicus curiae.

2001 P Cr. L J 1723

[Lahore]

Before Iftikhar Hussain Chaudhary, J

LIAQAT SHAH‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 120/13 of 2000/BWP, decided on 1st March, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.324/109/337‑F(iv)‑‑‑Bail, grant of‑‑‑Nature of injuries noticed on the person of injured prosecution witness had made out an offence punishable under S.337‑F(ii)(iv), P.P.C. which carried a maximum sentence of five years‑‑‑Case against the accused thus, did not fall within the prohibitory clause of 5.497, Cr.P.C.‑‑‑Question whether offence under S.324, P.P.C. was made out against the accused or not, would best be determined by the Trial Court‑‑‑Bail was granted to the accused.

Haji Khair Muhammad for Petitioner.

M.A. Farani for the State.

2001 P Cr. L J 1727

[Lahore]

Before Ch. Ijaz Ahmad, J

Maulana MUHAMMAD AZAM TARIQ‑‑‑Petitioner

versus

DISTRICT MAGISTRATE, JHANG and 2 others‑‑‑Respondents

Writ Petition No.4983/H of 2001, decided on 30th April, 2001.

(a) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)‑‑‑

‑‑‑‑S. 3‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Detention‑‑‑Failure to give grounds for detention under the provisions of West Pakistan Maintenance of Public Order Ordinance, 1960‑‑‑Interference of High Court in exercise of Constitutional jurisdiction‑‑­Scope ‑‑‑Detenu was entitled to delivery of grounds of detention without any loss of time‑‑‑Where it was established that the order of detention was passed by the Authorities with malice or had exercised powers in an unlawful manner, such order was liable to be struck down by High Court while exercising Constitutional jurisdiction.

(b) Mala fides‑‑‑

‑‑‑‑ Malice, proof of‑‑‑Malice has to be specifically alleged and is to be proved by the person who levels such allegation.

(c) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)‑‑‑

‑‑‑‑Ss. 3 & 16‑‑‑Constitution of Pakistan (1973), Arts.10 & 199‑‑­Constitutional petition‑‑‑Efficacious and alternate remedy‑‑‑Detention order‑‑‑Filing of representation against such order‑‑‑Validity‑‑‑Filing of representation is statutory right guaranteed by Art. 10 of the Constitution and as such is definitely efficacious alternate statutory remedy available to the person who wishes to challenge the detention order-‑‑Remedy of availing of representation as provided by S.3(6) of West Pakistan Maintenance of Public Order Ordinance, 1960 read with Art.10 of the Constitution was available to the detenu but he had not availed of for no cogent reasons‑‑‑Effect‑‑‑Without availing of the remedy of representation, Constitutional petition was' not sustainable unless and until the petitioner was in a position to make out a case of exceptional nature‑‑‑Where no such case had been established, whereof it could be said that the case was of such a nature that a remedy of representation could not be decided on merits and in accordance with law Constitutional petition was not maintainable.

PLD 1988 Lah. 611; Maulana Shah Ahmed Noorani's case PLD 1984 Lah. 222; Government of West Pakistan and others v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 and Muhammad Siddique Khan's case PLD, 1992 Lah. 140 ref.

Muzaffar Ahmad Mian for Petitioner.

Maqbool Elahi Malik, A.‑G. for the State.

Date of hearing: 30th April, 2001.

2001 P Cr. L J 1797

[Lahore]

Before Mian Muhammad Najum‑uz‑Zaman and Amir Alam Khan, JJ

Mst. ZOHRAN MAI ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 112 of 1998/BWP, decided on 17th May, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 417‑‑‑Penal Code (XLV of 1860), Ss.302/364/34‑‑‑Appeal against acquittal‑‑‑No direct evidence was available against the accused and the only evidence to prove the charge against them relied upon by the prosecution, was the last‑seen evidence‑‑‑Conduct of prosecution witnesses was very unnatural as had they known that the deceased had gone with the accused, they should have straightaway gone to the house of the accused in order to enquire about the deceased, instead of searching for him hither and thither or they should have lodged a report with the police immediately thereafter‑‑‑No marks of violence was found on the dead body of the deceased‑‑‑Prosecution case was silent as to how and under what circumstances the witnesses came to know that the accused attempted to commit sodomy upon the deceased before his death and upon his resistance, he was murdered by the accused‑‑­Accused was rightly acquitted by giving them benefit of doubt as a big vacuum was found in the case of the prosecution.

Muhammad Ashraf Mohandara for Appellant.

Nemo for the State.

Date of hearing: 17th May, 2000.

2001 P Cr. L J 1802

[Lahore]

Before Sheikh Abdur Razzaq, J

KARIM BUX‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1241/B of 2000/BWP, decided on 19th January, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.392/411‑‑‑Bail, grant of‑‑‑Mere fact that a number of cases had been registered against the accused was not sufficient to disentitle him for the relief of bail and that too on statutory ground‑‑‑Accused was, in jail for more than one and a half years and even charge had not been framed against him‑‑‑Accused could not be allowed to remain in fail for an indefinite period merely on the ground that various cases had been registered against him‑‑‑Accused was admitted to bail in circumstances.

Abdul Wahid Junejo v. The State 1997 PCr.LJ 1808 ref.

Sardar Muhammad Shamim Khan for Petitioner. M.A. Farazi for the State.

Date of hearing: 19th January, 2001:

2001 P Cr. L J 1806

[Lahore]

Before Ghulam Mahmood Qureshi, J

MUHAMMAD ASHRAF ‑‑‑ Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1353/B of 2000/BWP, decided on 2nd March.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.324/337‑A(vi)/337‑F(vi)/148/ 149‑‑‑Bail, grant of‑‑‑Part attributed to the accused was that he caught hold of the injured, but it was not understandable that if it was the position, how the co‑accused made a straight fire .towards the injured‑‑‑Accused had been shown empty‑handed and no fire‑arm or sharp‑edged weapon injury had been attributed to him‑‑‑No recovery had been effected from the accused‑‑­Presence of the accused at the spot having become doubtful, his case was covered under S.497(2), Cr.P.C.‑‑‑Accused was admitted to bail, in circumstances.

Abdur Rashid for Petitioner.

Ghazanfar Ali Khan for the State.

2001PCr.LJ1817

[Lahore]

Before M. Javed Buttar and Ali Nawaz Chowhan, JJ

NADEEM BUTT‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2828/B of 1999, decided on 13th October, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/452/34‑‑‑Bail, grant of‑‑­F.I.R. showed that the accused had been attributed a fire‑arm injury to the deceased on his right hip‑‑‑Eye‑witnesses had fully supported the prosecution version‑‑‑Delay in holding the trial was attributed to the accused‑‑‑Bail otherwise could not be granted to the accused as trial had commenced and statements of six prosecution witnesses had been recorded‑‑‑Bail application having no merits was dismissed in circumstances.

N.A. Butt for Petitioner.

A.H. Masud for the State.

2001 P Cr. L J 1823

[Lahore]

Before M. Javed Buttar and Ali Nawaz Chowhan, JJ‑‑

HABIB SHIN‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.7033/B of 2000, decided on 25th April, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.295‑A & 295‑B‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss.8/9‑‑‑Ball‑‑‑Witnesses in their statements made under S.161, Cr.P.C. had made only allegations of general nature against the accused and did not say anything specific against him‑‑‑Main allegation against the accused was that he had given "Taaviz" to the co‑accused women who were on bail‑‑‑Accused was not nominated in the F.I.R. and he was not seen doing anything at the alleged place of occurrence and also he did not seem to have any intention of committing an offence as covered under Ss.295‑B & 295‑C, P.P.C. being under the influence of Hindu Culture and ignorant about his own religion‑‑­Case of accused called for further inquiry in circumstances and he was admitted to bail accordingly.

State v. Kasnett 30 Ohio App.2d 77, 283 N.E.2d 636, 638; State v. Schlueter 127 NJL 496, 23 A.2d' 249, 251; Al‑Qur'an Surat Al‑Falaq (CXIII); Surat Baqarah, Ayat No. 102; Surat AI‑A'raf, Ayat Nos. 150 to 153 and Noble Qur'an by Dr. Muhammad Taqi‑ud‑Din Al‑Hilali ref.

Ch. Muhammad Javed Ghani for Petitioner.

Muhammad Ameer Vilana for the State.

2001 P Cr. L J 1829

[Lahore]

Before M. Naeemullah Khan Sherwani, J

ASHIQ MASIH (Islamic name ABDUL WAHID)‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3785/B of 2000, decided on 5th August, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of .979), Ss.10(2) & 16‑‑‑Bail, grant of‑‑‑Complainant who was father of the female had exonerated the accused‑‑‑Accused was behind the bars for the last about more than one year and the trial had not commenced so far‑‑‑Accused neither was a previous convict nor a hardened criminal‑‑‑Accusation brought against the accused required further probe into the matter‑‑‑Accused who had made a good case for grant of bail was released on bail.

Aftab Ahmed Bajwa for Petitioner.

A.H. Masud for the State.

2001 P Cr. L J 1833

[Lahore]

Before Khawaja Muhammad Sharif, J

THE STATE‑‑‑Appellant

versus

MUHAMMAD AMIN ‑‑‑Respondent

Criminal Original No.56 of 2000, decided on 23rd October, 2000.

Contempt of Courts Act (XII of 1926)‑‑‑

‑‑‑‑Ss. 3/4‑‑‑Criminal Procedure Code (V of 1898), 5.491‑‑‑Habeas corpus proceedings‑‑‑Petition for contempt of Court‑‑‑When the bailiff who was deputed to recover detenu, went to ,recover the detenu, the respondent misbehaved with the bailiff and also tried to give him bribe‑‑‑Statement of the bailiff with regard to said misbehaviour made before the Court, could not be disbelieved‑‑‑Respondent having tendered unconditional apology, Court took lenient view and convicted and sentenced him to undergo one month's S.I. with fine accordingly.

Ch. Nawab Ali Meo for Respondent.

2001 P Cr. L J 1838

[Lahore]

Before Ghulam Mahmood Qureshi, J

Mst. MARGRATE‑‑‑Petitioner

versus

S.H.O. and others‑‑‑Respondents

Criminal Miscellaneous No.1815/H of 2000, decided on 13th November, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 491‑‑‑Habeas corpus petition‑-‑Report of the bailiff showed that none of the detenu was found nominated in any F.I.R.‑‑‑Two of the female detenues had shown marks of violence on their bodies in the Court‑‑­Condition of other detenus also had shown that they were badly tortured by the police‑‑‑None of the detenu having been nominated in the F.I.R., petition was converted into bail application and the detenus were admitted on bail with direction to the bailiff to get all the detenus medically examined from Police Surgeon.

Najeeb Faisal Chaudhry for Petitioner.

2001 P Cr. L J 1846

[Lahore]

Before Malik Muhammad Qayyum and Ghulam Mahmood Qureshi, JJ

HUMAYUN SHAHBAZ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6542/B of 2000, decided on 14th December, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Customs Act (IV of 1969), Ss.156(1)(89) & 178‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4‑‑‑Bail, grant of‑‑‑Trial had not been concluded despite five years and nine months had passed since the registration of F.I.R. against the accused and the accused was in jail for the last more than two years‑‑‑Ground on which the Trial Court had dismissed the bail application of the accused, in itself was not a valid ground‑‑‑Accused was admitted to bail, in circumstances.

Muhammad Rafique v. The State 1997 SCMR 412 and Muhammad Yousaf v. The State 2000 SCMR 79 ref.

Aftab Ahmad Bajwa for Petitioner.

Nemo for the State.

2001 P Cr. L 1 1847

[Lahore]

Before Khawaja Muhammad Sharif, J

MUSHTAQ HUSSAIN ‑‑‑Petitioner

versus

S.H.O. and others‑‑‑Respondents

Criminal Miscellaneous No.2003/H of 2000, decided on 14th December, 2000.

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

‑‑‑‑Ss. 491 & 497‑‑‑Habeas corpus petition‑‑‑Allegation of physical torture‑‑­Medico‑legal Report‑‑‑Nature and scope‑‑‑Record had proved that the detenu who was taken into custody, was never produced before any Magistrate and was subjected to physical torture‑‑‑Allegation that Police Officer concerned demanded Rs.40,000 from the petitioner for the release of detenu was also proved‑‑‑Case of illegal detention, demand of illegal gratification and physical torture as reported by the Board of Doctors, was made out against said Police Officer and he was taken into custody and a criminal case was ordered to be registered against him ‑‑‑Detenu was allowed protective bail‑‑­Medico‑legal Surgeon who had earlier submitted an incorrect report, was also ordered to be proceeded against.

(b) Police Act (V of 1861)‑‑‑

‑‑‑‑S. 29‑‑‑Station ,House Officer‑‑‑Duty of‑‑‑Being incharge of police station, Station House Officer is under legal obligation to see that no innocent person is detained in an illegal manner and put to physical torture in the police station.

Imran Nasir Warraich for Petitioner.

Rana Ijaz Ahmad Khan for the Complainant.

Muhammad Farooq Bedar for Respondent No. 1.

Khizar Hayat Khan, A.A.‑G. (on Court's call).

2001 P Cr. L J 1855

[Lahore]

Before Dr. Munir Ahmad Mughal, J

GHULAM ABBAS ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.984/B of 2001, decided on 8th June, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(1), third proviso, cl.(a)‑‑‑Penal Code (XLV of 1860), Ss.367/324/ 334/337‑F(iv)/148/149‑‑‑Bail on the ground of statutory delay‑‑‑None of the offences with which the accused was charged was punishable with death‑‑­Accused was in detention for a continuous period of 22 months, i.e. exceeding one year and his trial had not so far concluded‑‑‑No allegation of the accused being a hardened, desperate or a dangerous criminal or involved in terrorist activities was on record‑‑‑Accused was granted bail in circumstances.

Syed Murtaza Ali Zaidi for Petitioner.

Tariq Mehmood Chaudhry for the State

2001 P Cr. L J 1858

[Lahore]

Before Khawaja Muhammad Sharif, J

Dr. GHULAM SAGHIR‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.641/B of 2001, decided on 20th February, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(1), third proviso‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail, grant of‑‑‑Two years had passed but not a single witness had been examined‑‑‑Case against the accused was covered by the third proviso to S.497(1), Cr.P.C.‑‑­Accused was admitted to bail.

1997 MLD 1591; 1997 MLD 1255 and 1991 PCr.LJ 254 ref.

Sh. Safdar Hussain for Petitioner.

Muhammad Rafique for the State.

2001 P Cr. L J 1864

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

GUL SHER alias GULOO‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.358/B of 2000, decided on 15th May, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), 5.302/34‑‑‑Bail, grant of‑‑‑Nothing was recovered from the possession of the accused during investigation‑‑‑Only evidence against the accused was that of last‑seen‑‑‑Motive of occurrence was attributed to the co‑accused and not the accused‑‑‑Case against the accused fell within the ambit of further inquiry which had entitled him to the concession of bail‑‑‑Accused was admitted to bail, in circumstances.

Abdul Rasheed Rashid for Petitioner.

Malik Sajid Feroze for the Complainant.

Maulvi Abdul Hameed for the State.

2001 P Cr. L J 1867

[Lahore]

Before Iftikhar Hussain Chaudhry and Zafar Pasha Chaudhry, JJ

MUHAMMAD YAR‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.782, Murder Reference No.246 and Criminal Revision No.344 of 1996, heard on 22nd May, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Ocular account of occurrence was reliable which was corroborated by medical evidence, motive and the report of the Forensic Science Laboratory‑‑‑Dispute between the accused and the deceased took place in the morning and the occurrence took place at least two or two and a half hours thereafter‑‑‑During this interregnum accused came back from the fields, went to his house, picked up the pistol and sat in ambush to intercept the deceased‑‑‑When the deceased approached near him the accused resorted to straight firing on him and emptied almost all the bullets‑‑‑Trifling incident of the morning did not in any manner furnish any sort of mitigating circumstance to justify the imposition of lesser penalty‑‑­Conviction and sentence of death of accused were upheld in circumstances.

Muhammad Inayat Ullah Cheema for Appellant.

Khawaja Shaukat Ali for the State.

Rai Tariq Saleem for Sardar Latif Khan Khosa for the Complainant.

Date of hearing: 22nd May, 2001.

2001 P Cr. L J 1871

[Lahore]

Before Muhammad Zafar Yasin, J

RIAZ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.1057/B of 2001/MN, decided on 22nd May, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/148/149/109‑‑‑Bail, grant of‑‑‑Accused was neither named in the F. I. R. nor his presence at the place of occurrence, was substantiated by the contents of the F.I.R.‑‑‑Police diary recorded during investigation showed that the accused had simply instigated the accused party‑‑‑Accused what was arrested subsequently did not participate in the occurrence and no role was attributed to him except the incitement‑‑‑Case against the accused being one of further inquiry, he was admitted to bail.

Mian Fazal Rauf Joiya for Petitioner.

Malik Abdul Hameed Khokhar for the State.

2001 P Cr. L J 1873

[Lahore]

Before M. Naeemullah Khan Sherwani, J

JAHANGIR IQBAL‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1094/B of 2001, decided on 3rd May, 2001.

Criminal Procedure Code (V of 1898)

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/379/148/149‑‑‑Bail‑‑ Name of accused did not figure in the F.I.R.‑‑‑Six persons nominated as accused in the F.I.R. had been let off by the Investigating Agency after thorough investigation of the case‑‑‑Eye‑witnesses had not uttered anything against the accused‑‑‑No incriminating article had been recovered at the instance of accused‑‑‑Accused had been entangled in the case at belated stage through extra judicial confession which was a weak type of evidence‑‑­ Accused had been in illegal and improper custody of police, identification parade was inconsequential in the matter‑‑‑Allegations against accused I required further probe and his case fell within the ambit of S.497(2), Cr.P.C.‑‑‑Accused was allowed bail accordingly.

Syed Zaffar Abbas Mashhadi for Petitioner.

Khalid Saifullah for the State.

2001 P Cr. L J 1877

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

MUHAMMAD AMJAD and 2 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.260 and Criminal Revision No.80 of 1998, heard on 29th May, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 302(c)/34‑‑‑Appreciation of evidence‑‑‑Recovery witnesses had not supported the recoveries allegedly effected in the case and stated that they had signed the recovery memos in the police station‑‑‑Joint confession of guilt by all accused before the witnesses at the same time and place, extra ­judicial confession made by them which was retracted and in conflict with medical evidence, was of no value and could not be relied upon‑‑­Prosecution evidence was neither true nor it inspired confidence‑‑‑Accused were acquitted in circumstances.

Sarfraz Khan v. The State 1996 SCMR 188 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Circumstantial evidence, appreciation of‑‑‑Prosecution in the case of circumstantial evidence is duty bound to produce evidence on record which is so interlinked as to form a continuous chain excluding all hypothesis of the innocence of the accused.

Sarfraz Khan v. The State 1996 SCMR 188 ref.

(c) Confession‑‑‑

‑‑‑‑ Joint confession or confession in presence of another accused‑‑­Evidentiary value‑‑‑Joint confession by accused or confession of accused made in the presence of another accused is of no value and no reliance can be placed upon it.

State v. Kamal Khan alias Malluh and another 1993 SCMR 1378; Muhammad Shafiq alias Chheela and another v. The State 1998 MLD 299 and Shirimati Seetan v. The, State 1988 PCr.LJ 939 rel.

Hafiz Abdul Rehman Ansari and Dr. Asghar Ahmad Rana for Appellant.

Saif‑ul‑Malook for the Complainant.

Saleem Shah for the State.

Date of hearing: 29th May, 2001.

2001 P Cr. L J 1886

[Lahore]

Before Riaz Kayani, J

JAVED MASIH‑‑‑Appellant

versus

THE‑STATE ‑‑‑Respondent

Criminal Appeals Nos. 1333, 1332, 1334 of 1999 and 479 of 2000, heard "on

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

‑‑‑‑Ss. 11 & 10(3)‑‑‑Appreciation of evidence‑‑‑Various stances adopted by the prosecutrix showed that the allegation of rape against the accused was nothing but an absolute concoction‑‑‑Prosecutrix was proved on record to have left the house of her own and returned according to her own convenience‑‑‑No one had abducted the prosecutrix and she had brought false charges against the accused at the instance of her father‑‑‑Such woman who could prevaricate so shamefacedly involving four persons in the F.I.R. for and then according to her own convenience at the coaxing reduce the number of said persons to one, loses all credibility and no authenticity could be lent to her statement‑‑‑Story of abduction of the prosecutrix by the accused was also a cock and bull story to Which no credence could be given‑‑‑Accused were acquitted in circumstances.

Mian Muhammad Hussain Chotya and Justin Gill for Appellant.

Arif Karim for the State.

Date of hearing: 9th May, 2001.

2001 P Cr. L J 1897

[Lahore

Before Muhammad Farrukh Mahmud, J

GHULAM MUSTAFA‑‑‑Petitioner

Versus

MUHAMMAD SADIQ‑‑‑Respondent

Criminal Miscellaneous No.93/CB of 2001, decided on 24th May, 2001.

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), 5.302/34‑‑‑Bail, cancellation of‑‑‑According to F.I.R. it was a sudden affair and co‑accused was alleged to have given brick blow which landed on the head of the deceased‑‑‑Only allegation against the accused was that he gave fist and kick blows to the deceased ‑‑‑Post‑mortem report as well as Medico‑legal Report had shown only one injury on the person of the deceased which was attributed to the co-­accused‑‑‑Considerations for cancellation of bail were entirely different from that of grant of bail‑‑‑Order granting bail to accused being neither perverse nor against the record, application for cancellation of bail was dismissed.

Qazi Khalid Pervaiz for Petitioner.

2001 P Cr. L J 1898

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ABDULLAH‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.27 of 1998, heard on 16th May, 2001

(a) Prevention of Corruption Act (V of 1947)‑‑‑

‑‑‑‑S. 5(2)‑‑‑Penal Code (XLV of 1860), S.161‑‑‑Appreciation of evidence‑‑­Mere fact that conversation between the complainant and the accused was not heard and the passing of the tainted money was not seen by the Magistrate will not entitle the accused to acquittal if other trustworthy and independent evidence is available on record against him.

Malik Umer Hayat v. The state 1998 SCMR 586 and Abdul Ghafoor v. The State PLD 1996 Lah. 17 ref.

(b) Prevention of Corruption Act (11 of 1947)‑‑‑

‑‑‑‑S. 5(2)‑‑‑Penal Code (XLV of 1860), S.161‑‑‑Appreciation of evidence‑‑­Presence of accused in the house of the complainant on the relevant date and time had shown his interest in getting the illegal gratification which was actually recovered from him at the time of raid when he threw the tainted money from his pocket in the presence' of the witnesses‑‑‑Independent witnesses like the Magistrate and the Inspector who had no enmity or grudge against the, accused had supported the af9resaid facts‑‑‑Complainant also had supported the prosecution version in toto in his examination‑in‑chief‑‑‑Non­seeing of the passage of money and non‑hearing of the conversation between the accused and the complainant by the Magistrate, in the circumstances, was not material‑‑ ‑Conviction and sentence of accused were upheld accordingly.

Malik Umer Hayat v. The State 1998 SCMR 586 and Abdul Ghafoor v. The State PLD 1996 Lah. 17 ref.

Ch. Muhammad Abdus Saleem for Appellant. Sh. Muhammad Sharif for the State.

Date of hearing: 16th May, 2001.

2001 P Cr. L J 1907

[Lahore]

Before Muhammad Asif Jan, J

GHULAM RABBANI alias BANI‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.7417/B of 2000, decided on 22nd March, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(1)(2)‑‑‑Penal Code (XLV of 1860), S.324/34‑‑‑Bail‑‑‑Unexplained delay of 17 days in lodging the F.I.R. had per se cast a doubt on the veracity of the entire prosecution case‑‑‑Accused had allegedly fired at the injured prosecution witness hitting him on the left flank and left arm‑‑‑No reasonable grounds existed to believe the accused being guilty of an offence punishable with death, imprisonment for life or imprisonment for ten years, rather his case required further inquiry into his guilt making him entitled to grant of bail‑‑‑Accused was admitted to bail in circumstances.

Muhammad Taqi Khan for Petitioner.

Abdul Rauf Farooqi for the Complainant.

Masood Sadiq Mirza for the State.

2001 P Cr. L J 1912

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD ANWAR ‑‑‑ Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.1130/13 of 2001, decided on 7th June, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/324/337‑A(ii)/337‑F(i)/ 148/149‑‑‑Bail, grant of‑‑‑No allegation was levelled against the accused that he caused any injury to the deceased‑‑‑Role of the accused was similar to that of the co‑accused who had already been granted bail‑‑‑Role of the accused was even little less as Lalkara was not attributed to him‑‑‑Rule of consistency demanded that the accused who was attributed similar role, should be treated in similar way‑‑‑Story of the prosecution as alleged in the F.I.R. had been found to be incorrect to some extent as during investigation Ss.148/149, P.P.C. had been deleted‑‑‑Since the accused had not been attributed any specific injury and had not caused any injury to the deceased who died because of fire‑arm injury, allegation against the accused needed further probe which fell within ambit of S.497(2), Cr.P.C.‑‑‑Bail was granted to the accused.

Muhammad Khalid Farooq for Petitioner.

Syed Altaf Hussain Bukhari for the State.

2001 P Cr. L J 1914

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD IRSHAD‑‑‑Petitioner

versus

THE STATE and others‑‑‑Respondents

Criminal Revision No.215 of 2001, decided on 20th June, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 324, 148 & 149‑‑‑Criminal Procedure Code (V of 1898), Ss.342, 540 & 439‑‑‑Application seeking permission to place on record attested copies of Birth Certificates of the accused‑‑‑Trial Court in its discretion under S.540, Cr.P.C. could summon any material witness for the just decision of the case‑‑‑Birth Certificate sought to be placed on record could hardly be termed as material evidence, necessary for the just decision of the case especially when the accused had never raised the plea that they were juvenile and they should be tried under the provisions of Juvenile Justice System Ordinance‑‑‑Non‑attested copies of Birth Certificates were already on the file‑‑‑Complainant had tried to introduce said material in record after the closure of the prosecution evidence and after recording the statement of the accused under S.342, Cr.P.C.‑‑‑Trial Court had rightly dismissed the application.

Abdul Sattar v. The State 1986 PCr.LJ 1536 ref.

Tahir Mehmood for Petitioner.

2001 P Cr. L J 1916

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD AFZAL ‑‑‑ Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.1278/B of 2001, decided on 1st June, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 497 & 103‑‑‑Penal Code (XLV of 1860), Ss.381‑A, 380 & 411‑‑­Bail, grant of‑‑‑Matter was reported to the police after one month and twenty‑three days from the occurrence‑‑‑Accused who was not named in the F.I.R. was also not among those five persons who had confessed their guilt before the Punchayat‑‑‑Only incriminatory evidence collected by the prosecution against the accused consisted of extra judicial confession and recovery‑‑‑Both the complainant and prosecution witnesses before whom confession was allegedly made by the accused remained silent for seventeen days as matter was reported to the police after seventeen days from making said extra judicial confession‑‑‑Provisions of S.103, Cr.P.C. were violated during recovery proceedings‑‑‑Allegations against the accused needing further prove and inquiry he was granted bail.

M. Akhtar Hussain Khawaja for Petitioner.

Abdul Rashid Chaudhary for the State.

2001 P Cr. L J 1918

[Lahore]

Before Muhammad Farrukh Mahmud, J

GHULAM HUSSAIN ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.1235/B of 2001, decided on 26th June, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10, 11, 13 & 14‑‑‑Bail, grant of‑‑‑No independent evidence was available to the effect that the accused were seen committing Zina‑bil‑Raza with each other‑‑‑Case against the accused was registered at the instance of female who was the sole witness of the incident, but her status had been changed from that of witness to an accused‑‑‑According to her latest statement she was the wife of the accused and a child was also born from the wedlock‑‑‑Accused had also admitted the factum of marriage, but according to him he had divorced the complainant‑‑‑Matter was reported to the police after more than one year and eleven months‑‑‑Accused had also placed on record the affidavit of Nikah Khawan as well as other witnesses who had attended the Nikah ceremony of the complainant and the accused‑‑‑Allegation against the accused needed further probe and inquiry and he was admitted to bail.

Malik Muzaffar Qadir Tamim for Petitioner.

Mian Abid Hussain for the State.

2001 PCr.LJ 1919

[Lahore]

Before Muhammad Farrukh Mahmud, J

GHULAM MURTAZA‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.1260/13 of 2001, decided on 19th June, 2001.

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

‑‑‑‑S. 497‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4‑‑‑Bail, grant of‑‑‑Nothing was recovered from the accused after his arrest‑‑‑Allegation that the accused who was selling liquor in shoppers had made good his escape from the police party consisting of six members after throwing the said shoppers could not be believed‑‑‑All the witnesses were police constables who were subordinates to the complainant and the complainant had himself completed the investigation‑‑‑No customer had been mentioned/apprehended in the case‑‑‑None of the offences mentioned in the F.I.R. was punishable with imprisonment for 10 years or more and did not fall within the prohibitory clause of S.497, Cr.P.C.‑‑‑Accused was not a previous convict‑‑‑Bail was granted to the accused, in circumstances.

Ashiq alias Kaloo v. The State 1989 PCr.LJ 601 rel.

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

‑‑‑‑S. 156‑‑‑Investigation‑‑‑Police Officer who was complainant had completed investigation of the case‑‑‑All witnesses were police constables, who were subordinates to complainant/Police Officer‑‑‑Investigation, in circumstances would result into mockery.

Ashiq alias Kaloos v. The State 1989 PCr.LJ 601 rel.

Habib Ullah Shakir for Petitioner.

Raja Sultan Khuram for the State.

2001 P Cr. L J 1921

[Lahore]

Before Muhammad Farrukh Mahmud, J

HABIB ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos. 1273/B and 1482/B of 2001.

Criminal Procedure Code (V of 1898)‑‑‑

-----S.497‑‑‑Penal Code (XLV of 1860), Ss.420, 468 & 471‑‑.‑Bail, grant of‑‑‑Accused were named as witnesses in Nikahnama allegedly performed between the daughter of the complainant and the main accused‑‑‑Prosecution case was that the Nikahnama was false and bogus‑‑‑Daughter of the complainant in her statement under 5.161, Cr.P.C. had denied the marriage with the main accused who had not been arrested ‑‑‑Nikah Khawan had already been granted pre‑arrest bail‑‑‑Section 420, P.P.C. was bailable while none of the offences attracted the prohibitory clause of S.497, Cr.P.C.‑‑­Main accused having not been arrested there was no likelihood of early commencement of the trial‑‑‑Police record showed that daughter of the complainant had also sworn an affidavit earlier admitting her marriage with the accused‑‑‑Accused were never involved in any criminal case previously and further detention of the accused in jail could not serve any useful purpose‑‑‑Bail was granted to the accused in circumstances.

Muhammad Naveed Hashmi for Petitioner Azmat Ali Taga for the State.

2001 P Cr. L J 1926

[Lahore]

Before Mian Nazir Akhtar, J

ASLAM KHAN and 5 others‑‑‑Petitioners

versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No.26/M of 2001 in 262/T of 2000, decided on 18th

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

‑‑‑‑Ss. 561‑A & 369‑‑‑Recalling of order passed by High Court transferring the case to Sessions Court for trial‑‑‑Conscious order had been passed in the Constitutional petition for trial of the case in Anti‑Terrorism Court whereas the impugned order had been passed in the transfer application in the light of an administrative order passed by the Sessions Judge for trial of six other cases in the jail‑‑‑Order under consideration could not be equated with a judgment or order on merits of the case so as to attract the bar of review contained in S.369, Cr.P.C.‑‑‑Petition was maintainable as the impugned order was not a final judgment or an order on merits of the case and the same could be reviewed, which was recalled in circumstances.

Gular Hassan Shah v. Ghulam Murtaza and others PLD 1970 SC 335; Lala Ghansham Das Birla and others v. Suraj Bhan AIR 1940 Lah. 192; R.H. Brightling Manager American Express Co. (Inc.), Lahore v. Saeed Ahmad Chaudhary 1968 PCr.L.1 1818; Juan Sullivan v. The State 1971 SCMR 618; Maulana Muhammad Azam Tariq, M.N.A. v. Khurshid Ali and another 1996 PCr.LJ 119; Mst. Shabana Niazi v. Muhammad Khalil 1997 PCr.LJ 746; Iqtidar Shah Jafri and others v. The State 2001 PCr.LJ 222; Ijaz Qadeer v. The State and another 1975 PCr.LJ 471; Amir‑ud‑Din v. State PLD 1977 SC 602; Muhammad Aslam and others v. The State (1967) 19 DLR (SC) 445 and Abdullah v. Din Muhammad Shah and others PLD 1976

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

‑‑‑‑S. 369‑‑‑Review‑‑‑Section 369, Cr.P.C. bars review of a final judgment passed on merits in a criminal case.

Malik Muhammad Khan Awan and Mian Aman Ullah Khan

Zafar Iqbal Chohan for Respondent No.1 (in Criminal Miscellaneous No.262/T of 2000).

Date of hearing: 8th May, 2001.

2001 P Cr. L J 1932

[Lahore]

Before Mian Nazir Akhtar, J

MUHAMMAD MASKIN‑‑‑Petitioner

versus

SATBAR KHAN Alias LAGBAR KHAN and another‑‑‑Respondents

Criminal Revision No.28 of 1994, decided on 28th May, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Criminal Procedure Code (V of 1898), Ss. 103 & 439‑‑‑Revision petition against acquittal‑‑‑Crime empties recovered from the place of occurrence had matched with the pistol recovered from the accused which was a material piece of evidence and required serious consideration for determining the guilt or innocence of the accused‑‑‑Non‑compliance of the provisions of S.103, Cr.P.C. alone could not be made a ground for discarding the recovery as the accused had himself led the police party to the place of recovery and got the pistol recovered‑‑‑Lapse of about nine years since the acquittal of accused could not stand in the way of ordering retrial to secure the interest of, justice‑‑‑Judgment of acquittal was consequently set aside and the case was remanded to the Trial Court for retrial from the stage of hearing arguments and passing a fresh judgment on merits in accordance with law‑‑‑Revision petition was accepted accordingly.

1969 SCMR 558; Mir Muhammad v. The State 1994 SCMR 614; State v. Shankar 1997 SCMR 1000; Muhammad Akbar v. The State 1995 SCMR 693; Abdul Latif v. Bagga Khan and another PLD 1996 SC 152 and Muhammad Abbas v. Sagheer Ahniad and others PLD 1995 SC 330 and State v. Muhammad Shafi PLD 1964 (W.P.) Lah. 1 ref.

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

‑‑‑‑S. 103-----Search to be made in presence of witnesses‑‑‑Provisions of S.103, Cr.P.C. apply to a case where the police conducts search to make recovery and not to a case where anything is discovered in consequence of the information given by the accused or on pointing out the place by the accused.

Mir Muhammad v. The State 1994 SCMR 614; The State v. Shanker 1997 SCMR 1000 and Muhammad Akbar v. The State 1995 SCMR 693 ref.

Sardar Muhammad Ishaq Khan for Petitioner.

Zahoor Ahmad Bukhari for Respondent No.1.

Nemo for the State.

Date of hearing: 30th November, 2000.

2001 P Cr. L J 1939

[Lahore]

Before Ijaz Ahmad Chaudhry, J

HASSAN ZAFAR‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Revision No. 287 of 2001, heard on 11th June, 2001.

(a) Juvenile Justice System Ordinance (XXII of 2000)‑‑‑

‑‑‑‑S. 7‑‑‑Age, determination of‑‑‑Age of the accused can only be determined after obtaining the report from the Medical Board‑‑‑Intention of the Legislature is very clear that determination of age of an accused person merely on the basis of School Leaving Certificate or Birth Certificate is not safe, hence report from the Medical Board should be obtained for the said purpose due to the reason that the Birth Certificates or School Leaving Certificates are easily available.

(b) Juvenile Justice System Ordinance (XXII of 2000)‑‑‑

‑‑‑‑S. 7‑‑‑Age, determination of‑‑‑Juvenile Court alone can decide whether an accused is a child or not on the basis of unimpeachable documentary evidence and after obtaining medical opinion.

(c) Juvenile Justice System Ordinance (XXII of 2000)‑‑‑

‑‑‑‑S. 7‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Order of Juvenile Court that the case of accused did not fall within the purview of Juvenile Justice System, Ordinance, 2000 assailed‑‑‑Trial under the Juvenile Justice System Ordinance was a feeble right‑‑‑Age of the accused according to Medical Board's Report was 23 years‑‑‑Possibility of difference of one year on both the sides could not be ruled out‑‑‑Difference of five years being in age of the accused between the Birth Certificate and Medical Board's Report, preference definitely would be given to the report of the Medical Board‑‑­Impugned order having been based on expert opinion made on the basis of Radiologist Report, authenticity was attached to the same under the law and it did not suffer from any illegality or irregularity.

PLD 1966 (W.P.) Kar. 71; Yousaf v. The State 1975 PCr.LJ.936; 1975 PCr.LJ 453; 1975 PCr.LJ 732; Muhammad Anwar and others v. The State 1976 PCr.LJ 1325; Hazoor Bakhsh v. Allah Dad 1989 PCr.LJ 1758; 1970 SCMR 30; PLD 1966 Pesh. 97; 2001 MLD 1191 and 2000 SCMR 1557 ref.

Muhammad Iqbal Bhatti for Petitioner.

Muhammad Shan for A.A.‑G. for the State.

Ch. Muhammad Aslam Sindhu for the Complainant.

Date of hearing: 11th June, 2001.

2001 P Cr. L J 1950

[Lahore]

Before Ijaz Ahmed Chaudhry, J

MUHAMMAD TUFAIL‑‑‑Petitioner

versus

MUSHTAQ AHMAD and 3 others‑‑‑Respondents

Criminal Miscellaneous No.2904/B of 2001, decided on 21st June, 2001.

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

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.324/452/148/149‑‑­Cancellation of bail ‑‑‑F.I.R. was delayed by 16/17 days‑‑‑Accused were not named in the F.I.R.‑‑‑No injury dangerous to life was attributed to accused‑‑‑Bail allowed to accused by Trial Court was not cancelled in circumstances.

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

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860'), Ss.324/452/148/149‑‑­Cancellation of bail‑‑‑Injury attributed to the accused according to the medical report was dangerous to life which had seriously damaged the kidney of the injured witness who had directly involved the accused for the same‑‑­Parties were closely related inter se and no question of false implication of accused in the case could arise‑‑‑Case against accused did not call for further inquiry‑‑‑Bail allowed to accused by Trial Court was cancelled in circumstances.

Muhammad Tariq Zafar for Petitioner.

Kh. Muhammad Ramzan for the Complainant.

Muhammad Shafi for the State.

2001 P Cr. L J 1956

[Lahore]

Before IjaZ Ahmed Chaudhry, J

ABDUL JABBAR and 6 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3193/B of 2001, decided on 19th June, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.337‑A(ii)/337‑F(ii)/337‑L(2)/ 427/148/149‑‑‑Pre‑arrest bail‑‑‑Sharp‑edged weapon injuries and blunt weapon injuries sustained by the accused during the occurrence had been suppressed by the complainant which had cast serious doubt on the prosecution case‑‑‑Police had refused to register the case on behalf of the accused or even to record their cross‑version against the complainant side ‑‑­Mala fides of the complainant and the police were, thus, crystal clear‑‑­Nothing incriminating could be recovered from the accused during police investigation‑‑‑Complainant had involved all the seven real brothers as accused in the case‑‑‑Bail before arrest was meant to protect the innocent persons from false implication‑‑‑Injuries attributed to accused were not punishable with death, imprisonment for life or ten years' R.I.' ‑‑‑Sending of accused to jail could not serve any useful purpose, rather they could suffer irreparable loss‑‑‑Interim pre‑arrest bail granted to accused was confirmed in circumstances.

C.M. Latif Rawn for Petitioners.

Asghar Ali for the Complainant.

Ashfaq Ahmad Chaudhry for the State.

2001 P Cr. L J 1961

[Lahore]

Before Khawaja Muhammad Sharif, J

SARDAR MASIH‑‑‑Appellant

versus

HEERA MASIH and others‑‑‑Respondents

Criminal Appeal No.477 of 1998, heard on 9th July, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 324, 337‑F(ii) & 337‑D‑‑‑Criminal Procedure Code (V of 1898), 5.417(2‑A)‑‑‑Appeal against acquittal‑‑‑Accused had caused three knife injuries on the left buttock, right buttock and left side of chest of the injured prosecution witness, who had fully implicated the accused in the case‑‑­Ocular account waqscorroborated by medical evidence‑‑‑Occurrence had taken place in broad daylight and no mitigating circumstance was available in favour of accused‑‑‑Judgment of acquittal was based ors flimsy grounds‑‑Prosecution had proved its case against accused beyond any shadow of doubt‑‑‑Accused was consequently convicted under Ss.324, 337‑F(ii) & 337‑D, P.P.C. for the injuries caused to the injured witness and sentenced to various terms of imprisonments with fine etc.‑‑‑Benefit of S.382‑B, Cr.P.C. was, however, extended to the accused.

Sikandar Zulqurnain for Appellant.

Zulfiqar Ali Malik for Respondent No.1.

Date of hearing: 9th July, 2001.

2001 P Cr. L J 1968

[Lahore]

Before Riaz Kayani and Bashir A. Mujahid, JJ

KHALID JAVED and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.100 and Murder Reference No.259 of 1996, decided on' 5th July, 2001.

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

‑‑‑‑S. 161‑‑‑First Information Report‑‑‑Evidentiary value o supplementary statement‑‑‑Where supplementary statement of complainant was brought on record by the defence and not by the complainant, same could be read and considered alongwith the First Information Report.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Criminal Procedure Code (V of 1898), S.164‑‑‑Confessional statement‑‑‑Prosecution evidence could not be discarded for the reason that the accused were not nominated in the F.I.R. as F.I.R. was not a substantive piece of evidence and its basic purpose was to set the law in motion‑‑‑Giving the contents of the F.I.R. in the inquest report and attaching the supplementary statement of the complainant with the same was not illegal‑‑‑Ocular account of occurrence had been corroborated by medical evidence, independent and trustful Wajtakkar evidence and the recoveries of weapons of offence and other incriminating articles at the instance of accused attested by independent and impartial witnesses‑‑­Accused had admitted their presence at the spot in their statements under S.342, Cr.P.C. and the plea taken by them in their defence had itself supported the prosecution version‑‑‑Confessional statement of one of the accused recorded by the Magistrate under S.164, Cr.P.C. after observing all the legal formalities had corroborated the total prosecution case which contained all the details and the manner in which both the accused had murdered the deceased lady‑‑‑Conviction and sentence of death of each accused were confirmed in circumstances.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.41‑‑‑Criminal Procedure Code (V of 1898), S.164‑‑‑Appreciation of evidence‑‑­Confessional statement‑‑‑Principles‑‑‑Confessional statement, even if subsequently retracted, can be made a basis for conviction if found genuine and corroborated by other evidence.

Muhammad Afzaal Siddiqui for Appellants.

Abdur Rashid Noman for A.‑G. for the State.

Naveed Anwar Naveed (complainant as an Advocate) in Person.

Date of hearing: 4th July, 2001.

2001 P Cr. L J 1987

[Lahore]

Before Muhammad Nawaz Abbasi, J

SHIQ HUSSAIN and 22 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.170/T and Criminal Revision No.59 of 2000, heard of 3rd April, 2001.

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

‑‑‑‑Ss. 12 & 6‑‑‑Jurisdiction of Special Court‑‑‑Accused of an offence having nexus with S.6 of the Anti‑Terrorism Act, 1997, which was committed before the promulgation of the said Act can be charged and tried by the Special Court, but he would not be awarded punishment other than the one provided for such an offence at the time of its commission.

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

‑‑‑‑Ss. 12 & 6‑‑‑Acquittal of accused from a scheduled offence‑‑‑Effect on the conviction of accused on other non‑scheduled offences‑‑‑Subsequent acquittal of accused from a scheduled offence would neither affect the jurisdiction of the Special Court nor affect the conviction and sentence awarded to him by the said Court for the remaining charges for commission of non‑scheduled offences.

(c) Interpretation of statutes‑‑‑

‑‑‑‑ Retrospectivity of statute‑‑‑No person can be awarded punishment other than the one provided under the law at the time of commission of the offence, but an enactment of procedural law may take retrospective effect if the substantive rights are not disturbed and, thus, the statute relating to the substantive rights cannot operate retrospectively as such, whereas the procedural changes in law can be made applicable to the pending cases.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 147, 295/149, 436/149 & 427/149‑‑‑Appreciation of evidence‑‑­Occurrence was the result of murder of the Head of one sect and the accused belonging to the. said sect being sentimental while participating in the procession set on fire the buildings and vehicles and damaged the movable and immovable properties belonging to the other sect‑‑‑Element of pre­planning to cause damage to the properties of other sect in the given situation would not be a common object of the participants of the procession‑‑­Accused in the process of agitation appeared to have developed the object of attacking on the religious place of other sect and in consequence thereto set on fire the buildings and vehicles and also damaged the properties‑‑‑All the participants of the procession, therefore, would not as such have common object to commit an offence, but due to the instigation of the accused who were active in the procession against the other sect because of the religious differences with common object committed the offence of setting on fire and damaging the properties of their opponents‑‑‑Notwithstanding the assignment of specific' role to an individual accused, the accused (appellant) therefore, while jointly showing their resentment with the common object of taking out procession, were collectively responsible for the commission of offences under Ss. 147, 436/149, 427/149 & 295/149, P.P.C.‑‑‑Occurrence had taken place in retaliation which was a ground of mitigation in the matter of sentence‑‑‑Sentence of imprisonment for life awarded to accused under Ss.436/149, P.P.C. was reduced to ten years' R.I. each with reduction in fine in circumstances‑‑‑Sentences under Ss. 147, 427/149 & 295/149, P.P.C: were, however, maintained‑‑‑All the sentences were ordered to run concurrently with the benefit of 5.382‑B, Cr.P.C.

Mehram Ali's case PLD 1998 SC 1445; Mst. Azeeba Kausar v. Zafar Iqbal and 2 others 2001 PCr.LJ 255; PLD 1959 (W.P.) Lah. 883; PLD 1965 SC 681; 1970 SCMR 840; PLD 1977 SC 413; 1984 SCMR 930; PLD 1985 SC 11; PLD 1980 SC 317; NLR 1981 Criminal 14 and 1994 SCMR 717 ref.

Ch. Afrasiab Khan and Razzaq A. Mirza for Appellants.

Raja Saeed Akram, A.A.‑G. for the State.

Sardar Muhammad Ishaq Khan for the Complainant.

Date of hearing: 3rd April, 2001.

2001 P Cr. L J 2004

[Lahore]

Before M. Javed Buttar, J

Rana SANA ULLAH KHAN, ADVOCATE‑‑‑Petitioner

versus

SECRETARY, HOME'DEPARTMENT, GOVERNMENT OF PUNJAB, CIVIL SECRETARIAT, LAHORE and 3 others‑‑‑Respondents

Writ Petition No.24023 of 2000, decided on 15th December, 2000.

(a) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)‑‑‑

‑‑‑‑S. 3‑‑‑Preventive detention‑‑‑District Magistrate cannot pass a detention order under S.3 of the West Pakistan Maintenance of Public Order Ordinance, 1960, merely on the report and satisfaction of the Police Officer‑‑‑Requirement of law is that District Magistrate should himself satisfy that a person is likely to act in a manner prejudicial to public safety or maintenance of public order and such satisfaction must be objective in nature and not subjective, otherwise, it would allow and permit the Executive Authorities to act.on their own fancies‑‑‑Sufficient material must be before the Authority to act upon it so as to justify the passing of an order of detention.

Muhammad Ishaq v. District Magistrate, Sheikhupura PLD 1978 Lah. 223; Raja Nek Muhammad v. District Magistrate, Abbottabad and others 1998 PCr.LJ 612; Government of Sindh through the Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1283; Mst. Shahnaz Begum v. Honourable Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677; Mrs: Arshad Ali Khan v. Government of the Punjab through Secretary, Home 1994 SCMR 1532; Muhammad Ali v. District Magistrate, Rahimyar Khan PLD 1996 Lah. 342; Muhammad Azim v. District Magistrate, Rahimyar Khan and another 1998 PCr.LJ 1123; Bashiran Bibi v. The District Magistrate, Kasur 1990 PCr.LJ 913; Yousaf Ayub Khan, M.P.A. and another v. Major (Rtd.) Aftab Ahmad Khan Sherpao, Chief Minister, N.‑W.F.P. and 5 others 1995 MLD 1179; Inayat Ullah v. District Magistrate/Deputy Commissioner, Bannu and another 1998 PCr.LJ 3; Nasrullah v. The District Magistrate, Rahimyar Khan and others 1998 PCr.LJ 480; Kausar Ali alias Kasuary v. Government of N.‑W.F.P. and others PLD 1999 Pesh. 82; Mst. Shazia Parveen v. District Magistrate, Okara PLD 1988 Lah. 611; Muhammad Tufail alias Thailoo v. S.H.O., Police Station, Bhai Pheru and 3 others 1990 PCr.LJ 1161; Jalal alias Jala v. District Magistrate, Kasur and 2 others 1990 PCr.LJ 1529; Umer Din alias Umroo v. S.H.O., Bhai Pheru and 3 others 1990 PCr.LJ 948; Noor Muhammad v. District Magistrate, Hyderabad, Sindh and 2 others 1990 PCr.LJ 2052; Maulana Shah Ahmad Noorani v. Government of the Punjab PLD 1984 Lah. 222; Dr. Muhammad Shoaib Suddle v. Province of Sindh through Secretary, Home Department, Sindh Civil Secretariat, Karachi and another 1999 PCr.LJ 747 and Haji Muhammad Ishaq Shah v. District Magistrate, Lakki Marwat and 2 others 1999 PCr.LJ 1558 ref.

(b) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)‑‑‑

‑‑‑‑S. 3‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Preventive detention‑‑‑Validity‑‑‑District Magistrate had issued the impugned detention order on the request of the S.S.P. without application of mind in a mechanical manner‑‑‑Said order did not show that the District Magistrate was himself 'satisfied that the petitioner was likely to act in a manner prejudicial to the State‑‑‑Petitioner's alleged criminal activity, referred to as ground of detention in the impugned order, was already a subject‑matter of various criminal cases and on the same allegations his detention was not justified in law‑‑‑After, the petitioner was able to obtain bails in various criminal cases he was arrested and detained under the impugned order which showed that the Executive Authority and the local police ‑were bent upon keeping him behind the bars even after his ielease on bail in various criminal cases‑‑‑State had the remedy under the general Criminal Law to move the higher Forums for the cancellation of bails granted to the petitioner, but instead a detention order was passed by the District Magistrate on the same day when the petitioner was released from jail which was an illegal exercise of the powers vested with the District Magistrate under S.3(1) of the West Pakistan Maintenance of Public Order Ordinance, 1960‑‑‑Impugned detention order passed by the District Magistrate was consequently declared to be without lawful authority and of no legal effect and was set aside.

Muhammad Ishaq v. District Magistrate, Sheikhupura PLD 1978 Lah. 223; Raja Nek Muhammad v. District Magistrate, Abbottabad and others 1998 PCr.LJ 612; Government of Sindh through the Chief Secretary, Karachi and 4 others v. Raeesa Farooq and 5 others 1994 SCMR 1283; Mst. Shahnaz Begum v. Honourable Judges of the High Court of Sindh and Balochistan PLD 1971 SC 677; Mrs. Arshad Ali Khan v. Government of the Punjab through Secretary, Home 1994 SCMR 1532; Muhammad Ali v. District Magistrate, Rahimyar Khan PLD 1996 Lah. 342; Muhammad Azim v. District Magistrate, Rahimyar Khan and another 1,998 PCr.LJ 1123; Bashiran Bibi v. The District Magistrate, Kasur 1990 PCr.LJ 913; Yousaf Ayub ‑Khan, M.P.A. and another v. Major (Rtd.) Aftab Ahmad Khan Sherpao, Chief Minister, N.‑W.F.P. and 5 others 1995 MLD 1179; Inayat Ullah v. District Magistrate/Deputy Commissioner, Bannu and another 1998 PCr.LJ 3; Nasrullah v. The District Magistrate, Rahimyar Khan and others 1998 PCr.LJ 480; Kausar Ali alias Kasuary v. Government of N.‑W.F.P. and others PLD 1999 Pesh. 82; Mst. Shazia Parveen v. District Magistrate, Okara PLD 1988 Lah. 611; Muhammad Tufail alias Thailoo v. S.H.O., Police Station, Bhai Pheru and 3 others 1990 PCr.LJ 1161; Jalal alias Jala v. District Magistrate, Kasur and 2 others 1990 PCr.LJ 1529; Umer Din alias Umroo v. S.H.O., Bhai Pheru and 3 others 1990 PCr.LJ 948; Noor Muhammad v. District Magistrate, Hyderabad, Sindh and 2 others 1990 PCr.LJ 2052; Maulana Shah Ahmad Noorani v. Government of the Punjab PLD 1984 Lah. 222; Dr. Muhammad Shoaib Suddle v. Province of Sindh through Secretary, Home Department, Sindh Civil Secretariat, Karachi and another 1999 PCr.LJ 747 and Haji Muhammad Ishaq Shah v. District Magistrate, Lakki Marwat and 2 others 1999 PCr.LJ 1558 ref.

(c) West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960)‑‑‑

‑‑‑‑S. 3‑‑‑Preventive detention‑‑‑Preventive detention would not be justified if the detenu on the same allegations as contained in the detention order was already an accused of substantive offences under the Penal Law as the preventive detention on the same allegations would amount to vexing the detenu twice on the basis of same criminal charge.

Nazeer Ahmad Ghazi, Muhammad Zafar Iqbal and Muhammad Javaid Awan for Petitioner.

Ijaz Ahmad Chaudhry, Addl. A.‑G. for the State.

2001 P Cr. L J 2019

[Lahore]

Before Asif Saeed Khan Khosa and Muhammad Farrukh Mahmud, JJ

MUHAMMAD INAAM alias INAM‑UL‑HAQ alias NAUMI

and another‑‑‑Appellants.

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.306 of 1996 and Murder Reference No.412 of 1998, heard on 17th May, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Criminal Procedure Code (V of 1898), S.103‑‑­Appreciation of evidence‑‑‑Occurrence had taken place on a dark, cold and windy night‑‑‑No light was available at the spot‑‑‑F.I.R. had not been recorded at the time mentioned therein and narrated by the complainant and the Investigating Officer‑‑‑Two witnesses, who were critically important for the prosecution case had been given up as being unnecessary‑‑‑Ocular account of occurrence was not sufficiently corroborated by any independent source and the same did not inspire confidence‑‑‑None of the three motives set up by the prosecution was proved‑‑‑Recoveries had not been effected from the exclusive custody of the accused and the same had violated‑the provisions of S.103, Cr.P.C.‑‑‑Recovery evidence was contradictory‑‑­Presence of eye‑witnesses at the scene of occurrence having been found unbelievable, medical evidence had lost all its supportive character‑‑­Prosecution evidence was utterly unreliable to sustain the conviction on a capital charge‑‑‑Accused were acquitted in circumstances.

Ch. Pervaiz Aftab for Appellants.

Atta Ullah Khan Tareen for the State.

Dates of hearing: 15th, 16th and 17th May, 2001.

2001 P Cr. L J 2031

[Lahore]

Before Asif Saeed Khan Khosa and Muhammad Farrukh Mahmud, JJ

BASHIR HUSSAIN ‑‑‑Petitioner

versus

THE STATE and 5 others‑‑‑Respondents

Criminal Revision No.120 of 2000, heard on 16th May, 2001.

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

‑‑‑‑S. 540‑‑‑Power to summon material witness‑‑‑Power of Trial Court to summon any person as a Court‑witness is not contingent upon a request of any party‑‑‑Such power can be exercised if the Trial Court feels that the evidence of such a person is essential to the just decision of the case.

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

‑‑‑‑Ss. 540 & 439‑‑‑Penal Code (XLV of 1860), Ss.302/379/396‑‑‑Eye­witnesses given up by prosecution, summoned by Trial Court as Court­ witnesses‑‑‑Validity‑‑‑Application submitted by the accused for summoning the given up prosecution witnesses as Court‑witnesses had been accepted by the Trial Court on the same day without issuing any notice to other party and also without affording any opportunity to any party to address arguments in that regard‑‑‑No reason whatsoever had even been recorded by Trial Court for accepting the said application‑‑‑Trial Court had depicted unholy haste in accepting the application submitted by the accused under S.540, Cr.P.C.‑‑­Judicial order must be a speaking order manifesting by itself that the Court had applied its mind to the resolution of the issues involved for their proper adjudication‑‑‑Exercise of jurisdiction by the Trial Court in the matter was neither proper nor regular.‑ ‑‑Impugned order was consequently set aside and the matter was remanded to the Trial Court for deciding the aforesaid application of the accused afresh after affording an opportunity to the parties to address their arguments thereon‑‑‑Revision petition was accepted accordingly.

Mahboob Khan v. The State PLD 1979 Lah. 691; Ghulam Rasul v. The State PLD 1960 (W.P.) Lah. 48; Jafar v. The State 1997 PCr.LJ 87; Khushi Muhammad v. Muhammad Yousaf and 6 others PLD 1961 Lah. 169 and Mollah Ejahar Ali v. Government of East Pakistan and others PLD 1970 SC 173 ref.

Malik Waqar Haider Awan for Petitioner.

Malik Muhammad Saleem for Respondents Nos.2 to 6.

Syed Muhammad Anwarul Haq for the State.

Date of. hearing: 16th May, 2001.

2001 P Cr. L J 2046

[Lahore]

Before Zafar Pasha Chaudhry, J

MUHAMMAD WASEEM NAWAZ alias CHHINA LOOLA‑‑‑Petitioner

versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No.3077/B of 2001, decided on 29th June, 2001.

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Bail‑‑­Complainant's version was supported by the recovery of rifle at the instance of accused, evidence of motive set up against the accused, medical evidence and the statement of the injured witness recorded under S.161, Cr.P.C.‑‑­Affidavit submitted by the injured witness could not be accredited in the presence of other prosecution evidence connecting the accused with the commission of the crime‑-‑Infirmity in the form of disability from which the accused was suffering could not be a sound reason to extend him the concession of bail as he was suffering from this disability since 1989 and thereafter it was the 9th case of the similar nature wherein he stood involved‑‑‑Said disability was also not of the nature as a result of which his health was likely to deteriorate or the same might be hazardous to his life‑‑­Accused was not made unfit by such disability to commit the offence alleged against him as he and his co‑accused had come in two cars and he kept on firing while sitting in the front seat of the car‑‑‑Manner in which the attack was launched and the number of empties recovered from .the spot had, prima facie, rendered the accused liable for the offence under S.302, P.P.C. by application of the principle of vicarious liability‑‑Bail was declined to accused in circumstances.

Sanaullah and 3 others v. The State 1983 SCMR 15; Mst. Bashiran Bibi v. Nisar Ahmad Khan and others PLD 1990 SC 83 and Ghulam Muhammad v. The State PLJ 1983 SC 334 ref.

Dr. A. Basit for Petitioner.

Sh. Shahid Waheed for the Complainant.

Muhammad Yasin Badar foi Respondent No.2. Aamer Feroze Sheikh for the State.

2001 P Cr. L J 2055

[Lahore]

Before Riaz Kayani and Bashir A. Mujahid, JJ

SHAH NAWAZ and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

CO Appeal No.1067‑and Criminal Revision No.739 of 1988, decided on 7th May, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34 & 304 , Part 1‑‑‑Appreciation of evidence‑‑‑Incident had taken place upon a sudden quarrel between the two warring groups‑‑‑Both sides in the heat of moment had exchanged blows and it was very difficult to determine as to which party had started the aggression‑‑‑Advent of the filth; in such an eventuality having become insignificant, murder could not be said to be premeditated‑‑‑Conviction of accused under S.302, P.P.C. . was consequently converted to 5.304, Part 1, P.P.C.‑‑‑Accused having spent 4‑1/2 years and 6 years each in jail their sentence of imprisonment for life was reduced to the imprisonment already undergone by them.

Syed Imdad Hussain Hamdani and M.A. War for Appellants.

Mian Jamil Akhtar for the Complainant.

Muhammad Azam for the State.

Date of hearing: 7th May, 2001.

2001 P Cr. L J 2065

[Lahore]

Before Iftikhar Hussain Chaudhary, J

MAQSOOD JAVED‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3288/B of 2001, decided on 5th July, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), 5.302/34‑‑‑Bail‑‑‑Police after having found the accused innocent during investigation had recommended his discharge from the case‑‑‑Co‑accused was not traceable‑‑‑Case of accused on' account of result of investigation was one of further inquiry‑‑‑Accused was admitted to bail in circumstances.

M.A. Zafar for Petitioner.

Mian Saeed‑ud‑Din for the State.

2001 P Cr. L J 2068

[Lahore]

Before Khalil‑ur‑Rehman Ramday and Ijaz Ahmad Chaudhry, JJ

Hakim MUMTAZ AHMAD‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6066/B of 2000, heard on 16th July, 2001.

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

‑‑‑‑S. 497(1)‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3(2)‑‑‑Bail‑‑‑Accused who was allegedly engaged in sale of opium had, according to F.I.R., sold the same even to the decoy customer sent to him and the tainted sale money had also been recovered from his possession‑‑­Accused was caught red‑handed with 142 grams of opium‑‑‑Case against accused being punishable with imprisonment for life, was hit by the prohibition contained in S.497(1), Cr.P.C.‑‑‑Accused involved in the narcotics trade did not deserve any leniency or sympathy‑‑‑Non‑submission of challan within 14 days was hardly a ground for releasing the accused on bail‑‑‑During pendency of bail application before the High Court accused secured bail from the Sessions Court‑‑‑Conduct of the accused in securing bail from the Sessions Court by concealing the fact of the pendency of his petition for the same purpose before the High Court, was by itself sufficient to disentitle him to bail‑‑‑Bail granted to the accused (petitioner) by Sessions Court was recalled in circumstances‑‑‑Earlier bail application of the accused had been dismissed by the Sessions Court after 17 days of the registration of the case whereafter accused applied for grant of bail before High Court‑‑­Even if it be presumed that non‑submission of challan for 14 days was a valid ground for grant of bail, then the said ground was available to the accused also when the first bail application was dismissed‑‑‑When the case was listed for hearing, counsel for the accused sought permission to withdraw the bail application, which was not allowed‑‑‑Inquiry from the concerned Jail, revealed that during the pendency of bail application of the accused before High Court accused had secured his release on bail by the same Court which had six weeks earlier declined to grant him bail‑‑‑No fresh ground, .thus, had accrued to the accused after refusal of his first bail application and entertaining a subsequent bail application by the Sessions Court was against all norms of law and propriety and was even offensive to the command of Supreme Court ordained through Zubair's case PLD 1986 SC 173‑‑‑Such conduct of Sessions Court was open to serious exception‑‑­Bail was declined to the accused in view of his conduct and circumstances.

Zubair's case PLD 1986 SC 173 ref.

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

‑‑‑‑Ss. 497 & 498‑‑‑Bail application‑‑‑Certification‑‑‑Counsel moving a bail application before any subordinate Court shall mention in the certificate the name and address of the person on whose instructions he has supplied the information required by the said certificate about the pendency of a bail matter regarding the accused before a higher Court or of any earlier petition having been moved before the same Court, so that the responsibility of providing information might be fixed on an identifiable individual‑‑‑Bail application shall not be entertained by any subordinate Court which does not carry such a certificate or where such ‑ a certificate does not disclose the identity of the person on whose instructions such a certificate was given.

Muhammad Naseem Shah for counsel for Petitioner.

M. Shan Gul for the State.

Date of hearing: 16th July, 2001.

2001 P Cr. L J 6

[Peshawar]

Before Talat Qayum Qureshi, J

GUL QIAS---Petitioner

Versus

SAEED KHAN and 2 others---Respondents

Criminal Miscellaneous No. 1094 of 2000, decided on 29th September, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.302/34---Bail---Delay of six hours in lodging the F.I.R. had not been properly, explained---Accused, at the time of occurrence, being at a distance of 55 to 57 paces from the complainant and the time being of a little darkness, their identity had become doubtful---Special Court, after rightly appreciating the facts of the case had exercised its discretion in granting bail to accused in accordance with law--­Impugned order was neither perverse nor arbitrary or fanciful nor the same had been obtained through fraud or misrepresentation---Accused had also not misused the concession of bail and no extraordinary circumstances existed to interfere with the bail granting order---Petition for cancellation of bail was dismissed in limine in circumstances.

Abdul Latif Afridi for Petitioner.

2001 P Cr. L J 43

[Peshawar]

Before Talat Qayum Qureshi, J

Mst. SHAKEELA---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos. 1227, 1231, 1232, 1242 and 1251 of 2000, decided on 25th September, 2000.

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10 & 18---Penal Code (XLV of 1860), S.294---Bail---Accused were allegedly found in a loom of Guest House busy in kissing each other--­Kissing and embracing did not fall within the category of attempt to commit Zina---Such act, at the most, could be termed as an intention to commit Zina, but mere intention was not punishable in law---None of the accused had put off his/her clothes and they had not done any practical act so as to bring the case within the purview of S.18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979---Duty of the Manager of the Guest House being to give' its rooms to the customers, his connivance with the accused was not established---Selling or buying a person for purpose of prostitution was even not, prima facie, proved from the record---Case against accused, thus, needed further inquiry and they were admitted to bail accordingly.

Muhammad Salim and another v. State 1998 PCr.LJ 2321 ref.

Pir Fida Muhammad Khan for Petitioner.

Abdur Rauf Gandapur for the State.

Date of hearing: 25th September, 2000.

2001 P Cr. L J 64

[Peshawar]

Before Talat Qayum Qureshi, J

MANZOOR ELAHI---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No. 64 of 1999, decided on 19th June, 2000.

(a) Criminal Procedure Code (V of 1398)---

----S. 345(2)---Penal Code (XLV of 1860), Ss. 320, 309 & 311--­Compromise---Legal heir of the deceased having filed affidavit confirming the factum of compromise and waiver of Qisas under S.309, P.P.C. no impediment would exist under S.311, P.P.C. in the compromise.

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

----S. 311---Tazir after waiver or compounding of right of Qisas in Qatl­Amd---Applicability---Section 311, P.P.C. is, applicable in those cases who there is no compromise regarding the case as a whole and only right of Qisas is waived under 5.309, P. P. C. or there is a compounding right of Qisas under S.310, P.P.C., then only the discretion provided under S.311, P.P.C becomes available.

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

----Ss. 309, 310 & 338-E (1)---Criminal Procedure Code (V of 1898) S.345---Waiver or compounding of offences---Guidelines stated.

With regard to waiver or compounding of evidences the following guidelines were laid down:--

(i) In case of Qatl-e-Amd, if the right of Qisas is waived without and compensation, or compromise is arrived at between the parties, i.e., accuses 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 meaning 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.

Nazakat Hussain v. The State PLD 1996 SC 178 fol.

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

----S. 311---Criminal Procedure Code (V of 1898), S.345(6)---Compromise, effect of---Compromise between the parties was not only in respect of compounding of Qisas, but also in respect of compounding of the offence--­Trial Court having found the compromise as genuine, had accepted the same in the interest of the parties---Prosecution had also not raised any objection to the said compromise---Only option left with the Trial Court, in the circumstances, was to acquit the accused under S.345(6), Cr.P.C.---Accused was acquitted accordingly.

Nazakat Hussain v. The State PLD 1996 SC 178 ref.

Abdullah Jan Mirza for Appellant.

Muhammad Ayub Khan, A.A.G. for the State.

Date of hearing: 12th June, 2000.

2001 P Cr. L J 81

[Peshawar]

Before Abdur Rauf Khan Lughmani, J

Mst. SALMA and other---Petitioner

Versus

THE STATE and another---Respondents

Criminal Bail Application No. 99 of 2000, decided on 11th September, 2000

Criminal Procedure Code (V of 1898)---

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.5/11/16---Bail, grant of---Validity of earlier Nikah between the lady accused and the complainant being sub judice before the Family Court, case against accused was one of further inquiry till its decision and they deserved to be enlarged on bail---Accused were admitted to bail accordingly.

1997 SCMR 37 and PLD 1994 SC 236 ref.

Dost Muhammad Khan for Petitioners.

Muhammad Khan for the State.

Muhammad Karim Anjum for the Complainant.

Date of hearing: 11th September, 2000.

2001 P Cr. L J 165

[Peshawar]

Before Qazi Ehsanullah Qureshi, J

MUTABAR KHAN---Petitioner

Versus

Mst. BACHA BIBI and another---Respondents

Criminal Miscellaneous No. 559 of 2000, decided on 29th September, 2000.

Criminal Procedure Code (V of 1898)--

----S. 497---Penal Code (XLV of 1860), Ss. 324/148/149---Bail, grant of--­Accused though was directly charged in F.I.R. for firing at injured-person, but a cross-case was lodged on same day and time of occurrence mentioned in the cross-case wherein the injured was named as one of the accused, coincided with time given in the case registered against accused---Venue of occurrence in both cases was one and the same, and it was yet to be seen as to which of the parties was aggressor and which had been the victim---Case against accused being of further inquiry he was released on bail.

Syed Sardar Hussain for Petitioner.

Naveed Akhtar for the State.

Date of hearing: 29th September, 2000.

2001 P Cr. L J 173

[Peshawar]

Before Mrs. Khalida Rashid and Talat Qayum Qureshi, JJ

ABDUL WADOOD---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No. 214 of 2000, decided on 5th October, 2000.

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

----S. 13---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Allegedly recovered arms and ammunition was found lying beneath the seats of coach in which accused alongwith other accused was travelling and nothing was recovered from the person of accused---Nothing was on record to show that accused had any knowledge of said arms and ammunition lying underneath seats in the coach and nothing was on record to show that as to who kept the material and as to where it was loaded in the coach---In absence of any evidence it could not be said that accused had even constructive possession of recovered articles---Place of occurrence was not deserted one, but was populated area and occurrence also did not take place at the dead of night, despite that no efforts were made to associate any private person from the general public---All prosecution witnesses were police officials and no reason had been given for non-compliance of provisions of S.103, Cr.P.C.---Statements of said police officials in absence of statement of any private person of locality could not be solely accepted and relied upon to convict the accused---Possibility that accused being one of passengers of the coach was implicated with some ulterior motive, could not be ruled out---Conviction and sentence awarded to accused by Trial Court were set aside, giving him benefit of doubt.

State v. Qazi Pervez Iqbal and others PLD 1978 SC 64; State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408; State v. Muhammad Amin 1999 SCMR 1367 and Iltaf Hussain v. The State 1996 SCMR 167 ref.

Khawaja Muhammad Khan for Appellant.

Azizur Rehman Khan for the State.

Date of hearing: 3rd October, 2000.

2001 P Cr. L J 557

[Peshawar]

Before Sardar Muhammad Raza, C.J. and Shahzad Akbar Khan, J

MUHAMMAD HAYAT--Appellant

versus

ABDUS SALAM and another---Respondents

Criminal Appeal No.318 of 1997, decided on 5th October, 2000.

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

----S. 302---Appreciation of evidence---Principle---Explanation removing confusion has to be considered---Reasonable explanation offered by a prosecution witness for removing any confusion (no doubt) has to be considered and resolved in accord with the balance of circumstances.

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

----S. 302---Appreciation of evidence---Chance witness---Chances do occur in life as happening of chances is integrated with life and it is not a mere impossibility---Courts, therefore, can accept the testimony of the chance witness, but have to remain alert and look around for the corroborative evidence.

Muhammad Ashraf and another v. The State PLD 1977 SC 538 rel.

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

----S. 302---Appreciation of evidence---Presence of eye-witnesses at the scene of incident was possible---Ocular account of occurrence was supported by medical evidence, motive, recovery of blood-stained pebbles from the spot and abscondence of accused---Registration of F.I.R. at the instance of a witness other than an eye-witness could not outweigh the statements of eye­witnesses and other circumstantial evidence---False involvement of accused in the case was not conceivable---Impugned judgment did not suffer from any misreading or non-reading of evidence---Conviction and sentence of accused were upheld in circumstances.

(d) Criminal trial------

----False implication-Common feature of present social culture was that no independent person would come forward to depose against a murderer obviously for the reasons of avoiding the wrath of desperate man--­Prosecution and the eye-witnesses being related to the accused party, question of false involvement in the case was not conceivable.

Muhammad Ashraf and another v. The State PLD 1977 SC 538 rel.

Khawaja Muhammad Khan for Appellants.

Atif Khan for the Complainant.

Isa Khan for the State.

Date of hearing: 5th October, 2000.

2001 P Cr. L J 573

[Peshawar]

Before Qazi Ehsanullah Qureshi, J

ZULFIQAR---Petitioner

versus

THE SENIOR SUPERINTENDENT OF POLICE, PESHAWAR and 3

others---Respondents

Habeas Corpus Petition No.57 of 2000, decided on 21st September, 2000.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition ---Detenus were alleged to have been arrested by the police after having been charged for theft by the complainant in his statement under S.164, Cr.P.C:---Nothing was stated to have been found against the detenus during investigation---One detenu had levelled allegations of great torture and cruel beating against the police and shown injuries on his body to the Court---Police, in circumstances, was directed not to keep the detenus in their custody any more and send them to jail---Request for grant of bail to accused could not be acceded to as neither the record of the case was before the Court, nor notice to the State in this respect had been given ---Detenus, however, were at liberty to move bail application before the Judicial Magistrate---Petition was disposed of accordingly.

Zahid Amin v. State H.C.P. No.49 of 2000 and 1998 PCr.LJ 1117 ref.

Akhtar Naveed for Petitioner.

Tariq Javed, A.A.G. for the State.

Date of hearing: 21st September, 2000.

2001 P Cr. L J 578

[Peshawar]

Before Shah Jehan Khan and Talat Qayum Qureshi, JJ

MUHAMMAD AYUB---Petitioner

versus

HUSSAIN KIANI and another---Respondents

Criminal Miscellaneous Application No. 1280 of 2000, decided on 18th October, 2000.

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

----S. 164---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Confession---Recording of confession in Hudood cases---Procedure---Magistrate not competent to record confession--­Confesssion under Hudood cases must be recorded by Trial Court and a Magistrate is not competent to undertake this exercise---Any such statement recorded by a Magistrate would not be a confession and the same would have no legal effect.

Muhammad Naseer v. The State PLD 1988 FSC 58 and Mumtaz Khan v. The State 1992 PCr.LJ 412 ref.

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

----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Bail---Recovery of robbed amount on the pointation of accused, statement of the witness to whom the accused had sold the snatched prize bonds and the manner in which the offence had been committed by the accused at day time in the busy area of the city had connected him with the commission of the offence---Reasonable grounds, thus, existed for believing the accused being guilty of the offence charged with---Bail was declined to accused in circumstances.

Muhammad Naseer v. The State PLD 1988 FSC 58 and Mumtaz Khan v. The State 1992 PCr.LJ 412 ref.

Ishtiaq Ibrahim for Petitioner.

Tariq Javed Khan, A.A.-G. for the State.

Akhtar Naveed for the Complainant.

Date of hearing: 18th October, 2000.

2001 P Cr. L J 585

[Peshawar]

Before Abdur Rauf Khan Lughmani and Shahzad Akbar Khan, JJ

MUHAMMAD IRFAN and another---Petitioners

versus

THE STATE and 4 others---Respondents

Writ Petition No.5 of 1997, decided on 27th June, 2000.

Criminal Procedure Code (V of 1898)---

----Ss. 202, 203 & 204---Penal Code (XLV of 1860), Ss.452/353/500/505/34---Constitution of Pakistan (1973), Art.199---Constitutional petition--­Private complaint---Mechanism and procedure---Direction given by Magistrate to the S.H.O. in private complaint to register the case against accused---Validity---Chapters XVII & XVIII of Criminal Procedure Code, 1898, had provided complete mechanism and procedure for dealing with the private complaint---Magistrate after taking cognizance of the matter in the form of private complaint could have proceeded only with the said procedure and was not authorized to issue directions to the police for registration of the case against the accused---Impugned order of the Magistrate directing the S.H.O. to register a case against the accused was, therefore without lawful authority and the F.I.R. registered in pursuance thereof was a nullity in the eyes of law ---F.I.R. was quashed accordingly and the case was remanded to the Trial Court for proceeding with the complaint according to law and decide the same on merits.

Abdur Rashid Khan for Petitioners.

Shaukat Hayat Khakwani, Asstt. A.-G. for Respondents Nos. 1 to 3.

Respondents Nos.4 and 5 in person.

Date of hearing: 27th June, 2000.

2001 P Cr. L J 622

[Peshawar]

Before Tariq Parvez and Muhammad Qaim Jan Khan, JJ

SHAH QIAZ KHAN---Appellant

versus

THE STATE and another---Respondents

Criminal Appeal No.65 and Murder Reference No.9 of 2000, decided on 18th October, 2000.

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

----S. 302(b)---Appreciation of evidence---Conviction on the testimony of solitary witness---Testimony of sole witness on a capital charge generally is not considered sufficient for conviction without very strong corroboration, but this rule cannot be a rule of thumb and general application, because at times and in some circumstances there is no possibility of availability of or presence of any second witness.

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

----S. 302(b)---Appreciation of evidence---Sole eye-witness in the case was wife of the deceased who was a natural witness of the occurrence---Mistaken identity of the single accused was out of question---Medical evidence, incriminating recoveries and site plan had fully supported the ocular version---No motive was alleged for false implication of accused in the case---More than six years long and unexplained abscondence of accused had also corroborated the prosecution story---Conviction and sentence of death of accused were confirmed in circumstances.

Dost Muhammad Khan for Appellant.

Shaukat Hayat Khan Khakwani, Asstt. A.G. for the State.

Date of hearing: 18th October, 2000.

2001 P Cr. L J 628

[Peshawar]

Before Shahzad Akbar Khan, J

Haji MUHAMMAD ABBAS ---Petitioner

versus

Mrs. NAILA TRANUM JAMSHED and 4 others---Respondents

Quashment Petition No. 15 of 1999, decided on 21st June, 2000.

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

----Ss. 88(6-A) & 561-A---Powers of High Court under S.561-A, Cr.P.C.--­Scope---Attachment order---Withdrawal of---Quashing of withdrawal of attachment order---Claim or objection having been preferred in terms of S.88, Cr.P.C. was to be essentially put to a judicial inquiry by the Magistrate by recording the evidence giving a fair opportunity of proof and rebuttal to the parties---Claim of respondent was based on an unregistered gift-deed which had been accepted without putting the same to the test of evidence---Proper inquiry regarding the said claim as envisaged under S.88(6-A), Cr.P.C. should have been conducted by the Magistrate by affording full opportunity to the parties of leading their pro and contra evidence which was not done---High Court was competent under S.561-A, Cr.P.C. to undo the mischief of any violation of law or misuse of process of the Court and could even itself take notice of the wrong and exercise its powers, it was, therefore, immaterial whether the petitioner had any locus standi in the matter or not or whether the revisional remedy had been exhausted or not---Impugned order, whereby the Magistrate, while entertaining the objection of the respondent-had withdrawn its earlier order of attachment regarding the immovable property, was consequently set aside and the case was remanded to the Magistrate for holding a proper inquiry into the matter and deciding the same afresh in accordance with law.

1995 SCMR 1679 ref.

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

----S. 561-A---Inherent powers of High Court---Powers vested in High Court under S.561-A, Cr.P.C. are unbridled 'and vast enough so as to arrest and rectify any abuse of process of Court and make such orders as may be necessary to secure the ends of justice.

1995 SCMR 1679 ref.

Dost Muhammad Khan for Petitioner.

Haji Saadullah Khan Miankhel for Respondent No. 1.

S. Zafar Abbas Zaidi for Respondents Nos.2 and 3.

Ghulam Hur Khan State Counsel for Respondents Nos.4 and 5.

Date of hearing: 21st June, 2000.

2001 P Cr. L J 637

[Peshawar]

Before Abdur Rauf Khan Lughmani and Shahzad Akbar Khan, JJ

NAWAB KHAN and 2 others---Appellants

versus

AFSAR KHAN and another---Respondents

Criminal Appeals Nos. 116, 117 and Criminal Revision No. 18 of 1996, decided on 29th May, 2000.

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

----S. 302---Appreciation of evidence---Injuries received by the eye-witnesses in the same incident had proved their presence on the spot---Eye-witnesses were minutely unanimous in their statements and had attributed firing to the accused which was supported by medical evidence ---F.I.R. was lodged by the injured witness in the hospital with reasonable promptitude excluding all kinds of doubts for deliberation and consultation---Presence of eye-witnesses with the deceased at the scene of occurrence was natural---Eye-witnesses having qualified the test of confidence, non-examination of any outsider as a witness had not damaged the prosecution case---Ocular testimony was strongly corroborated by medical evidence, incriminating recoveries of various kinds and abscondence of accused---Question of mistaken identity of accused and substitution of real culprits by the complainant party, did not arise---Motive for the occurrence having not been satisfactorily established, lesser sentence of imprisonment for life awarded to accused was proper and justified---Conviction and sentence of accused were upheld in circumstances.

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

----S. 302---Appreciation of evidence---Interested witness---Testimony of an interested witness can be accepted for recording conviction provided it finds sufficient corroboration from other circumstantial evidence of the case.

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

----S. 302---Sentence---Absence of motive---Factor of absence of the motive can be considered for the purpose of determining the quantum of punishment.

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

----S. 302---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Accused duly equipped with deadly weapons had formed a body and marched towards the scene of occurrence and opened fire at their victims sitting inside the shop which resulted in death of the deceased and injuries to the eye-witnesses---Such behaviour of accused had clearly demonstrated common intention on their part from the very -beginning and their case was fully covered by S.34, P.P.C.---Acquittal of accused from the charge under S.302, P.P.C. by the Trial Court being misconceived and incorrect was set aside---Accused was consequently convicted under S.302, P.P.C. and sentenced to imprisonment for life with fine.

Abdul Latif Khan Baloch for Appellant.

Dost Muhammad Khan for Respondent No. 1.

Muhammad Khan Khakwani for the State.

Date of hearing: 7th March, 2000.

2001 P Cr. L J 660

[Peshawar]

Before Mrs. Khalida Rachid, J

WARIS KHAN ---Petitioner

versus

DEPUTY SUPERINTENDENT CUSTOM, MARDAN and another---Respondents

Criminal Miscellaneous No.224 of 1999, heard on 25th September, 2000.

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

----Ss. 1, 351 & 156---Reinvestigation ordered by Court---Code of Criminal Procedure does not contain any provision to authorise the Trial Court to order for reinvestigation or call a person to join in the proceedings after conclusion of the trial of accused, or to direct the prosecution to conduct investigation afresh against person who appears from the evidence to be connected with the offence.

Girish Yadav and others v. State of Madhya Pradesh AIR 1996 SC 3098 ref.

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

----Ss. 16, 156(1)(8)(89)(9)(90), 157 & 178----Criminal Procedure Code (V of 1898), Ss.561-A & 351---Quashing of the order of reinvestigation---Trial Court while convicting the accused challaned in the case had directed the prosecution to reinvestigate the case against the petitioner who appeared to be the main accused according to the evidence led at the trial---Trial Court had no powers under the Criminal Procedure Code, 1898, to order for reinvestigation in the case or call a person who appeared from the evidence on record to be connected with the offence, to join in the proceedings after trial of the accused was concluded---Impugned order passed by Trial Court directing investigation afresh against the petitioner was consequently quashed.

Girish Yadav and others v. State. of Madhya Pradesh AIR 1996 SC 3098 ref.

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

----S. 156---Reinvestigation---Police has not only the authority to reinvestigate the case as many times as it chooses, but has also the powers to withdraw the challan and submit fresh challan.

Khalid Khan for Petitioner.

Abdul Hakim Khan Kundi, Dy. A.G. for the State.

Date of hearing: 25th September, 2000.

2001 P Cr. L J 665

[Peshawar]

Before Mian Shakirullah Jan, J

MUHAMMAD NAZIR---Petitioner

versus

THE SENIOR SUPERINTENDENT OF POLICE PESHAWAR and 4

others---Respondents

Habeas Corpus Petition No.52 of 2000, decided on 4th September, 2000.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition ---Detenus were the employees of the complainant in a theft case and were detained in his house when the bailiff recovered them from there and produced them in High Court---Nobody had obstructed or resisted while the detenus were brought to High Court--­Detenus had made certain allegations against various police officials for detaining them for some time and torturing them in connection with the alleged theft committed in the house of the complainant ---Detenus were set at liberty in circumstances.

Akhtar Naveed for Petitioner.

Imtiaz Ali, A.A.G. for the State.

Date of hearing: 4th September, 2000.

2001 P Cr. L J 669

[Peshawar]

Before Shah Jehan Khan and Qazi Ehsanullah Qureshi, JJ

NUR ALAM---Petitioner

versus

SPECIAL JUDGE, PREVENTION OF SMUGGLING ACT, 1977, N.W.F.P., PESHAWAR and 2 others---Respondents

Writ Petition No.627 of 1995, heard on 2nd November, 2000.

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

----Art. 199---Constitutional jurisdiction---Adequate remedy---When an adequate remedy is provided by the law, High Court never exercises its Constitutional jurisdiction even if vires of law have been challenged.

Pir Sabir Shah v. Shad Muhammad Khan, Member, Provincial Assembly, N.W.F.P. and another PLD 1995 SC 66 ref.

(b) Constitution of Pakistan (1973)---

----Art. 12---Nature and scope---Protection against retrospective punishment---Article 12 of the Constitution relates to law regarding an offence and has got no concern with'-the civil rights.

(c) Prevention of Smuggling Act (XII of 1977)---

----Chap. IV [Ss.30 to 43]---Forfeiture of property---Law enacted under Chap.IV of the Prevention of Smuggling Act, 1977, relates to the forfeiture of property acquired by means of smuggling which may be treated as infringement of civil right, but has no implication of making an act or omission as an offence which was not already an offence.

(d) Prevention of Smuggling Act (XII of 1977)---

----Ss. 31 & 43---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Impugned notice/order issued by the Special Court to the petitioner under S.31 of the Prevention of Smuggling Act, 1977 being of interlocutory nature and the statutory right of appeal provided under S.43 of the said Act being an adequate remedy available to him, was not maintainable---Petitioner who was close relative of the main smuggler against whom the Anti-Narcotics Task Force had furnished detailed information regarding his involvement in smuggling with close association in smuggling with other renowned smugglers to different countries without surrendering to the Special Court had approached the High Court to file the Constitutional petition---Petitioner had been shown owner of certain properties mentioned in the impugned order alongwith his brothers and the said main smuggler whose all accounts and dealings were being controlled by the petitioner---Such information’s and allegations required a probe in the matter which could only be done by the Trial Court--­Matter qua the property in the name of the petitioner was still sub judice before the Special Court where he would have ample opportunity to prove that the properties registered in his name were not acquired through smuggling assets .but from a legal source---Constitutional petition was dismissed in circumstances.

The Collector of Customs v. New Electronics PLD 1994 SC 363; Mir Nabi Bakhsh Khan Khoso v. Branch Manager, N.B.P. 2000 SCMR 1017; Virasat Ullah v. Bashir Ahmad 1969 SCMR 154; National Steel Rolling Mills v. Province of West Pakistan 1968 .SCMR 317; Muhammad Boota and 77 others v. Commissioner PLD 1973 Lah. 580; Pir Sabir Shah v. Shad Muhammad Khan, Member Provincial Assembly, N.W.F.P. and another PLD 1995 SC 66; S. Zafar Ahmad v: Abdul Khaliq PLD 1964 (W.P.) Kar. 149; Lt.-Col. Mohsin Shah v., Mst. Qaseema Wahid and 4 others PLD 1995 Lah. 385; Mst, Shereen Masood v. Malik Naseem Hassan, Family Court 1985 CLC 2758; Ch. Ghulam Ali v. Commissioner, Lahore Division PLD 198: Lah. 368; Salooka Steels Ltd. v. Director-General, Coast Guards of Pakistan PLD 1981 Quetta 1; Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450; Messrs S.A. Haroon and others v. Collector of Customs, Karachi PLD 1959 SC (Pak.) 177 and Mir Ghous Bakhsh Bizenjo v. Islamic Republic of Pakistan PLD 1976 Lah. 1504 ref.

Abdul Razzak v. Government of Pakistan 1980 PCr.LJ 375 fol.

Khawaja Haris for Petitioner.

Jehanzeb Rahim for Respondent No.2.

Salah-ud-Din, Dy. A.G.II for Respondent No.3.

Dates of hearing: 31st October; 1st and 2nd November, 2000.

2001 P Cr. L J 745

[Peshawar]

Before Mian Shakirullah Jan and Talat Qayum Qureshi, JJ

ZAHOOR AHMAD and others---Petitioners

Versus

EXECUTIVE MAGISTRATE and others---Respondents

Writ Petition No. 1142 of 2000, heard on 17th January, 2001.

Penal Code (XLV of 1860)---

----Ss. 419/420---Constitution of Pakistan (1973), Art.199---Constitutional petition---Criminal proceedings---Competency of---Complainant in her application filed before Executive Magistrate/Incharge Complaint Cell, alleged that mutation of land owned by her had, been fraudulently got attested by petitioners on her behalf---Magistrate conducted inquiry into the matter, cancelled the mutation and directed complainant to lodge F.I.R. against the petitioners under Ss.419/420, P.P.C.---Complainant had already instituted civil suit in which she had challenged the validity of the mutation---Dispute between the parties being of civil nature, Magistrate had no jurisdiction to entertain the application of complainant---Orders passed by Magistrate were declared to be illegal by High Court in exercise of Constitutional jurisdiction.

Gul Sadbar for Petitioners.

Attique Shah for Respondents.

Date of hearing: 17th January, 2001.

2001 P Cr. L J 818

[Peshawar]

Before Ijaz-ul-Hassan, J

MUDASAR alias BABU---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous No.329 of 2000, decided on 21st November, 2000.

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---Sufficient material was available on the record to connect the accused with the commission of the offence which fell within the prohibitory clause of S.497(1), Cr.P.C.---Delay in lodging the F.I.R. had been satisfactorily explained---No animosity between the parties being existing false implication of accused in the case was out of question---Trial of accused had commenced---Bail was declined to accused in circumstances.

1998 MLD 1924; PLD 1983 FSC 204; 1985 PCr.LJ 159; PLD 2000 Pesh. 51; 1998 PCr.LJ 776 and 1999 SCMR 338 ref.

Muhammad Akbar Khan Swati for Petitioner. Muhammad Ayub Khan, A.A.-G. for the State. Abdur Razaq Chughtai for the Complainant.

Date of hearing: 21st November, 2000.

2001 P Cr. L J 875

[Peshawar]

Before Ijaz‑ul-Hassan, J

Mst. AJAIB BIBI‑‑‑Applicant

versus

S. SAKHAWAT SHAH and 3 others‑‑‑Respondents

Criminal Miscellaneous Application No.103 of 2000, decided on 20th November, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(5)‑‑Penal Code (XLV of 1860), Ss.302 & 201/34‑‑‑Cancellation of bail‑‑‑Van driver in his statement recorded under S.164, Cr.P.C. had fully implicated the accused in the case and confirmed having shifted the dead body of the deceased from the house of accused to the dumping field in their presence‑‑‑Facts that the statement of the driver had been recorded after five days of the shitting of the dead body, that the accused had not misused the concession of bail and that the trial was to commence within a short time, by themselves constituted no valid ground for allowing bail to the accused, who were otherwise, prima facie, associated with the guilt‑‑‑Impugned order granting bail to the accused was contrary to the evidence available on record from which a prima facie case of involvement of accused was made out‑‑­Case against accused fell within the prohibition contained in S.497(1), Cr.P.C.‑‑‑Bail allowed to accused by Sessions Court was recalled in circumstances.

1999 SCMR 338; 1998 PCr.LJ 746, 1996 PCr.LJ 795; 1984 PCr.LJ 2219; 2000 PCr.LJ 1171; 2000 PCr.LJ 1574; 2000 YLR 1252; 1998 Cr.LJ 339; 1999 MLD 979 and 1998 SCMR 1578 ref.

Syed Shabbir Hussain Shah for Applicant.

Ghulam Mujtaba Khan Jadoon for Respondents.

Muhammad Ayub, A.A.G. for the State.

Dates of hearing: 30th October and 20th November, 2000.

2001PCr.LJ1014

[Peshawar]

Before Tariq Parvez and Muhammad Qaim Jan Khan, JJ

MUHAMMAD NAWAZ‑‑‑Appellant

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No.58 of 1997, decided on 18th January, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.46‑‑‑Police Rules, 1934, 8.25,21‑‑‑Appreciation of evidence‑‑‑Dying declaration, recording of‑‑‑Deceased, while in injured condition, reported the occurrence to the police and gave a very straightforward version of the occurrence where a single accused was charged for causing fire‑arm injuries to the maker of the report and other deceased‑‑‑Previous and immediate motive of occurrence was also given in the report‑‑‑Said report was though not recorded in consonance with 8.25.21 of Police Rules, 1934, but its evidentiary value had to be determined on the basis of all the surrounding circumstances i.e. whether deceased before his death was capable of making statement and was in his senses and whether scribe of said report had any ill‑will against the accused for fabricating a false statement‑‑‑No allegation was made against injured (who later on died) to the effect that he was incapable of making any statement‑‑‑Said fact was sufficient proof as to the capacity of the injured to have made the statement‑‑‑Statements trade by injured before death to the police were dying declarations and were admissible and being duly corroborated were reliable for basing conviction of the accused especially when those were not contradictory to each other‑‑‑Presence of eye‑witness at place of occurrence was natural as occurrence had taken place in front of house of witness‑‑‑Statement of other witnesses with regard to the main occurrence was also consistent‑‑‑Relationship of a witness with the deceased would only make him an interested witness but not inimical towards the accused‑‑‑Prolonged abscondence of the accused also had furnished additional corroboration to statements of eye‑witnesses and the maker of the report‑.‑‑Case of prosecution having stood proved, the accused were rightly convicted and sentenced‑‑Fine could not be imposed under S.302, P.P.C., therefore, instead of fine accused was to pay compensation under S.544‑A, Cr.P.C.

PLD 1959 Pesh. 144; 1994 SCMR 1852; 1997 SCMR 450; 1998 PCr. LJ 1769 and 1997 PCr. LJ 545 ref.

(b) Criminal trial‑‑‑

‑‑‑‑Interested witness‑‑‑Relationship of a witness with the deceased would only make him an interested witness but not inimical towards the accused.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 46‑‑‑Police Rules, 1934, 8.25.21‑‑‑Dying declaration,‑ recording and admissibility of‑‑‑Procedure for recording dying declaration, as laid down in Police Rules, 1934, could not be termed to be mandatory as no consequential penalty was prescribed for non‑observance of the said Rules‑‑‑Rule 25.21, Police Rules, 1934 was for attaching additional authenticity to the statement of the deponent‑‑‑Dying declaration was made admissible under Art.46 of Qanun‑e‑Shahadat, 1984 which--- Article did not provide any particular method and manner for recording said declaration‑‑‑Declaration could either be oral or written, signed or thumb‑impressed but it must be a statement of person telling about circumstances which resulted into his death‑‑‑Statement as a matter of abundant caution should be recorded in the presence of a Magistrate and if Magistrate was not available then in presence of two gazetted Police Officers and even if they were also not available then in presence of two notables who were unconnected with the maker of the statement‑‑‑If in a case said procedure was not adopted and if it was provided in Rules that failure to adopt such procedure the statement of injured (subsequently becoming dying declaration) would be rendered inadmissible, same would be in direct conflict with the statutory provisions embodied in Art.46 of Qanun‑e‑Shahadat, 1984.

(d) Interpretation of statutes‑‑‑

‑‑‑‑ Rules could not displace the effect which was provided by the statute.

(e) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 46‑‑‑Criminal Procedure Code (V of i8PQ), Ss.161 & 162‑‑‑Dying declaration‑‑‑Admissibility‑‑‑Statement made by deceased at the time when he was in injured condition was admissible and relevant under Qanun‑e-?Shahadat, 1984 and Criminal Procedure Code, 1898, which provided procedure for recording such evidence‑‑‑Statement made by a person with regard to circumstances which subsequently led to his death, would be admissible under Art.46 of Qanun‑e‑Shahadat, 1984 and would not be subject to control under Criminal Procedure Code, because of the fact that same was recorded under S.161, Cr.P.C. during the investigation.

(f) Criminal trial‑‑‑

‑‑‑‑Motive‑‑‑Absence of motive or non‑setting of any motive cannot be detrimental to the case of the prosecution if on the basis of direct evidence the charge has been brought home against the accused‑‑‑Such case, however, can be a circumstance where Court, keeping in view other circumstances of the case, can consider it to be case of mitigation while awarding sentence.

Syed Zafar Abbas Zaidi for Appellant.

Shaukat Hayat Khan Khakwani, Asstt. A.‑G. for the State.

Muhammad Karim Anjum Qasuria for the Complainant.

Dates of hearing: 10th and 11th January, 2001.

2001 P Cr. L J 1184

[Peshawar]

Before Talat Qayum Qureshi and Ejaz Afzal Khan, JJ

REDI GUL‑‑‑Appellant

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No. 191 of 1997, decided on 20th February, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Father of the deceased alone had furnished the ocular account of occurrence which was in direct conflict with the medical evidence, meaning thereby that he had not seen the occurrence‑‑­Whether the incident was blind or the net of implication was thrown too wide, the rule of prudence which had hardened into a rule of law required strong corroboration which was lacking in the case‑‑‑Version set forth in the F.I.R. having been changed beyond recognition by making dishonest additions, omissions and improvements, reliance on the testimony of the said solitary witness was extremely dangerous in the offence involving capital punishment‑‑‑Even innocent persons might flee out of fear in order to avoid harassment and victimization at the hands of the police‑‑‑Nothing on the record was pointed out to determine with certainty that the accused was responsible for causing the fire‑arm injury to the deceased‑‑‑Accused was acquitted in circumstances.

M. Zahoorul Haq for Appellant.

M.A. Rashidul Haq Qazi, A.A.‑G. for the State.

Complainant in person.

Date of hearing: 22nd January, 2001.