PCRLJ 2002 Judgments

2002 P Cr. L J 678

[Federal Shariat Court]

Before Fazal Elahi Khan, C.J.

and Ali Muhammad Baloch, J

AMIR BAKHSH‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Jail Criminal Appeal No.47/Q of 2001, decided on 20th November, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 392‑‑‑Appreciation of evidence‑‑‑Case against accused was of no evidence and he had been convicted only on surmises and conjectures on the basis of the statement of the so‑called Tracker who was neither an Expert in tracking, nor did he take the moulds for comparison with the footprints of the accused‑‑‑Area admittedly was stony where the footprints were missing at some places and up to the place where the traced footprints were found there were several houses‑‑‑Trial Court had failed to apply its judicial mind to the facts of the case and had proceeded in the manner which was violative of the principles governing safe administration of criminal justice‑‑‑Accused was acquitted in circumstances:

(b) Criminal trial‑‑‑--

‑‑‑‑ Appreciation of evidence‑‑‑Conviction can be based on the evidence which connects the accused with the offence beyond any reasonable doubt‑‑‑In reaching such conclusion the evidence i.e., the examination‑in­ chief and cross‑examination of the witness, has to be properly appraised and its evidentiary value evaluated qua the innocence of the accused.

Javaid Aziz Sandhu for Appellant.

Nemo for the State.

Date of hearing: 20th November, 2001.

2002 P Cr. L J 740

[Federal Shariat Court]

Before Ch. Ejaz Yousaf and Ali Muhammad Baloch, JJ

LOUNG and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.86/K of 2000 and Jail Criminal Appeal No.3/K of 2001, decided on 22nd October, 2001.

Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 302/307/309/310/397‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (.VI of 1979), S.17(4)‑‑‑Criminal Procedure Code (V of 1898), S.345‑‑‑Compounding of offence‑‑‑Accused were convicted and sentenced by Trial Court and they filed appeal against judgment of Trial Court‑‑‑Compromise was arrived at between accused and heirs of deceased during pendency of appeal‑‑‑Four of the legal heirs of deceased who were minors had entered into compromise through their mother and authenticity of compromise had also been verified by widow of deceased and also by Trial Court to which case was sent to verify genuineness of compromise deed‑‑‑State Counsel did not dispute or challenge authenticity of compromise deed, but had submitted that since four of legal heirs of deceased were minors, amount of Diyat falling in their share proportionately be deposited in bank till the time the minors attained puberty and became adults legally and accused side agreed to do so‑‑‑Compromise was accepted accordingly and accused were ordered to be released on bail.

Muhammad Bakhsh Samoon for Appellants (in Criminal Appeal No.86/K of 2000).

Mrs. Saleha Naeem alias Ghazala for Appellants (in Jail Criminal Appeal No.3/K of 2001).

Fazal‑ur‑Rehman Awan for the State.

Date of hearing: 22nd October, 2001.

2002 P Cr. L J 820

[Federal Shariat Court]

Before Fazal Ilahi Khan, CJ

KAMRAN KHAN and 3 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.12/P 16/P and 17/P of 2001, decided on 10th October, 2001.

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

‑‑‑‑Ss. 10(2) & 13‑‑‑Allegation of Zina‑‑‑Appreciation of evidence‑‑­Prosecution case on facts and circumstances entirely rested on the ocular evidence furnished by the Investigating Officer and other police employees‑‑‑No person from the locality had appeared to support the prosecution case though the alleged occurrence took place in a broad daylight in a highly busy area in the Cantonment‑‑‑Statements of both the prosecution witnesses contradicted each other in material particulars and there was material improvement in the prosecution evidence which reflected adversely on the investigation being honest and such improvement was made after deliberation and consultation‑‑‑Medical evidence and the report of the Chemical Examiner had not supported the prosecution case‑‑‑Trial Court had accepted the version of the prosecution witnesses on its face value but had failed to appraise the same alongwith defence version and the statement of the prosecution witnesses given in their cross‑examination‑‑‑Material contradictions in the statements of the prosecution witnesses brought out in their cross­-examination at the trial in their statements under S.161, Cr.P.C. with which the witnesses were confronted, had also not been taken into consideration‑‑‑Trial Court had also ignored the medical report and the result of the Chemical Examiner with regard to the alleged suspected semen‑stained articles taken into possession by the Investigating Officer at the. time of the arrest of the accused‑‑‑Material improvement made by the prosecution witnesses on the original version reflected adversely on their credibility but same was not considered‑‑‑Main culprit of the entire episode who allegedly provided the female accused to the accused, who was specifically nominated in the F.I.R. had neither .been arrested nor associated in the investigation‑‑‑Not a single person from the locality appeared to depose against the accused and no one from the public was associated with the raid or with the recoveries though the Investigating Officer had prior information of the offence being committed for which the alleged warrant had been obtained and raid arranged‑‑‑Non‑observing of such legal formalities on the facts of the case had vitiated the entire proceedings‑‑‑Investigating Officer had no jurisdiction to raid the house which did not fall within the jurisdiction of police station concerned and that too on the information of a person who had no interest‑‑‑Investigating Officer was not required to have violated the privacy of the home which was a Fundamental Right of a citizen enshrined in the Constitution‑‑‑Prosecution having utterly failed to prove its case against the accused, conviction and sentences recorded by the Trial Court against them was set aside and they were acquitted of the charge.

Abdul Qayum v. The State 1991 PCr.LJ 568 ref.

Muhammad Sardar Khan for Appellants.

Akhtar Naveed for the State.

Date of hearing: 10th October, 2001.

2002 P Cr. L J 831

[Federal Shariat Court]

Before Sardar Muhammad Dogar, J

Mst. SHARMAN ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.227/L of 2001, decided on 31st January, 2002.

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

‑‑‑‑Ss. 10(2) & 16‑‑‑Appreciation of evidence‑‑‑F.I.R. had been lodged by accused herself wherein she had in a categorical manner levelled allegation of her abduction against co‑accused and acquitted accused who were allegedly armed with a gun and a pistol‑‑ ‑Female accused had emphatically levelled allegation of commission of Zina with her by co­-accused and she was consistent on her stand till the end trial‑‑‑Prior to that she had filed Constitutional petition wherein she had narrated the same story as got recorded by her in F.I.R.‑‑‑Allegation levelled by Police Officer by making inadmissible statement about character of female accused stood demolished by the fact that her son‑in‑law, who appeared as prosecution witness had supported statement of the accused‑‑‑Said witness had also stated during cross‑examination that he had informed the police about occurrence of abduction of the female accused‑‑‑Had the lady accused been a woman of loose character and bad reputation, said witness would not have come to make statement in her favour‑‑‑Accused lady had consciously kept her away from other accused by not joining hands with him to engage an Advocate for defence‑‑­Instead she made positive statements against the co‑accused‑‑‑Accused having been examined medically 18 days after she had returned to her house, positive report received from Office of Chemical Examiner was discarded‑‑‑Accused lady was acquitted of charge and was ordered to be released.

Imrana Parveen Baluch for Appellant.

Marina Parveen Chaudhry for the State.

Date of hearing: 31st January, 2002.

2002 P Cr. L J 847

[Federal Shariat Court]

Before Sardar Muhammad Dogar, J

Mst. SAKINA BIBI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.332/L of 2001, 5/L and 6/L of 2002, decided on 6th February, 2002.

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

‑‑‑‑Ss. 10(2) & 16‑‑‑Appreciation of evidence‑‑‑Accused who were charged for commission of offence under S.16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979, were acquitted of the charge‑‑‑Neither the prosecution nor the complainant having challenged that part of the judgment so chapter of case to that extent stood closed‑‑­Statement made by one of prosecution witnesses not only did not find corroboration from any other evidence, but also lacked credentials‑‑‑No reliance could be placed on statement of such witness‑‑‑Conduct of complainant throughout did not inspire confidence‑‑‑Case against accused being of no evidence, they were acquitted of the charge and were released.

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

‑‑‑‑S. 16‑‑‑Ingredients of offence under S.16, Offence of Zina (Enforcement of Hudood) Ordinance, 1979 are that there should be a woman; she should have been enticed or taken away and concealed or detained with intent to commit illicit intercourse.

Sh. Ikram‑ud‑Din (in Criminal Appeal No.332/L of 2001).

Nemo for Appellants (in Criminal Appeal No.5/L of 2002).

Burhan Moazzam Malik and Ch. Shahid Tabassam for Appellant (in Criminal Appeal No.6/L of 2002).

Ch. Muhammad Farooq for the State.

Date of hearing: 6th February, 2002.

2002 P Cr. L J 934

[Federal Shariat Court]

Before Fazal Ilahi Khan, CJ

Syed ALI HAIDER JAFARI‑‑‑Petitioner

versus

Mst. SHABANA NAZ and another‑‑‑Respondents

Criminal Revision No.6/K of 2000, decided on 25th January, 2002.

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

‑‑‑‑S. 11‑‑‑Appreciation of evidence‑‑‑Accused was alleged to have used the word "paramour" in reply of the complainant's application filed in the Court of Guardian Judge‑‑‑Word "paramour" used in the guardianship application on facts and circumstances of the case was not proved as having been used by the accused‑‑‑No doubt, the word "paramour" was not used in good sense, but it, by itself, would not amount to "Qazf" and entail conviction under S.11 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979‑‑‑Accused was acquitted in circumstances.

Mian Abdul Qadus v. Sahib Ali and others PLY) 19!14 FSC 69 and Muhammad Shabbir v. The State and another PLD 1991 FSC 71 ref.

Ejaz Khattak for Petitioner.

Arshad Lodhi, Asstt. A.‑G., Sindh for the State.

Date of hearing: 25th January, 2002.

2002 P Cr. L J 1156

[Federal Shariat Court]

Before Fazal Ilahi Khan, C. J. and Ali Muhammad Baloch, J

AURANGZEB‑‑‑Petitioner

Versus

AWAL REHMAN and another‑‑‑Respondents

Criminal Review No. 1/P of 2001 in Criminal Revision No. 16/I of 1999, decided on 14th December, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 203‑DD‑‑‑Criminal Procedure Code (V of 1898), S.497(5)‑‑­Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11/16‑‑‑Revisional jurisdiction of Federal Shariat Court‑‑­Cancellation of bail‑‑‑Federal Shariat Court after having considered the merits of the case had exercised its discretion in granting bail to the accused‑‑‑Said order having not been challenged in a higher forum did not require interference in exercise of the jurisdiction under Art.203‑DD of the Constitution‑‑‑Observations made by the Federal Shariat Court with regard to the confessional statement, its admissibility, holding the same to be of dubious nature, rejection of the medical report and opinion about the affidavit of the prosecutrix at bail stage, were beyond the scope of tentative assessment‑‑‑Trial Court alone could evaluate the evidentiary value of the said material when brought on record after providing opportunity to the parties to examine and cross‑examine the witnesses basing reliance on it‑‑‑Impugned order granting bail to the accused was maintained, but the said observations made by the Federal Shariat Court were set aside in exercise of the power under‑ Art.203‑DD of the Constitution with the direction' to Trial Court to ignore the same while appraising evidence and giving decision on merits‑‑Review petition was accepted to the said extent only.

Muhammad Siddique Haider for Petitioner.

Khanzada Ajmal Zeb Khan for Respondents.

Malik Ahmad Jan, Dy. A.‑G., N.‑W.F.P. for the State.

Date of hearing: 14th December, 2001.

2002 P Cr. L J 1169

[Federal Shariat Court

Before Ch. Ejaz Yousaf and Ali Muhammad Baloch, JJ

MUHAMMAD IQBAL alias BALA and 6 others‑‑‑Appellants

Versus

THE STATE‑‑Respondent

Criminal Appeals Nos.225/L, 239/L, 245/L, 254/L and 263/L of 2000, decided on 21st January, 2002.

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

‑‑‑‑Ss. Ss.10(3), 11 & 19‑‑‑Penal Code (XLV of 1860), S.201‑‑­Appreciation of evidence‑‑‑Victim who was a minor girl of about. 13 years had not only fully implicated the accused, but had also identified them to be the culprits‑‑‑Victim had neither enmity against any of the accused persons nor had cause to falsely implicate them‑‑‑Statement of the girl inspired confidence and had received corroboration from medical as well as other evidence in all material particulars‑‑‑Trial Court, in circumstances, had rightly convicted the accused‑‑‑Accused did not challenge their conviction, but had prayed for reduction in the sentences awarded to them by the Trial Court on the ground that they were young and first offenders and were repentant‑‑‑Conviction of the accused was maintained, but sentences awarded to them were reduced substantially.

Muhammad Iqbal Khan Khattak, Abdul Aziz Khan Niazi, Mian Muhammad Hanif Tahir, M.A. Zafar and Syed Hassan Mustafa Rizvi for Appellants.

Mian Makhshoof Amjad for the State.

Date of hearing: 21st January, 2002.

2002 P Cr. L J 1183

[Federal. Shariat Court]

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

BASHIRULLAH and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.40/I, Criminal Murder Reference No.2/I and Criminal Revision No.9/I of 2001, decided on 30th November, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Appreciation of evidence‑‑‑Presumption‑‑‑Where evidence given by a witness on certain point in examination‑iii‑chief is not challenged and authenticity of the fact is not questioned in cross­-examination, the .legal presumption would be that said fact has been admitted by the party against whom the same has 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 Raga 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.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)‑‑‑Identification test‑‑‑Evidentiary value‑‑‑Identification test is neither a legal requirement nor is a substantive piece of evidence and is only corroborative of the evidence given by a witness at the trial.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑ Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)‑‑‑Appreciation of evidence‑‑­Identification test‑‑‑Evidentiary value‑‑‑Mere delay or lapse of long interval in holding the identification test by itself is no ground to discard the testimony as regards identification of the accused, if it is not challenged at the trial.

Arif Masih and another v. The State PLD 2001 SC 398 ref.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302(b)/34‑‑‑Appreciation of evidence‑‑‑Identification test‑ Corroboration‑‑ Corroboration from identification test would be essential only if there is doubt regarding identity of the accused, otherwise his involvement in the crime can be inferred from the attendant circumstances.

Haq Nawaz and another v. The State 2000 SCMR 785 and Muhammad Bashir Alam v. The State PLD 1958 SC 1 ref.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Sentence‑‑‑Common intention‑‑‑Once community of intention is established, then the question of fatalness of injuries would be wholly irrelevant.

Muhammad Akbar and 2 others v. The State PLD 1991 SC 923; Abdul Jabbar v. The State PLD 1964 SC 81; Mitho v. The State PLD 1963 (W.P.) Kar. 1 and Hayat v. The State 1977 SCMR 340 ref.

(f) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 (b)/34‑‑‑Appreciation of evidence ‑‑‑Common intention‑‑­Common intention has to be inferred from entire conduct of the accused and not from an individual act which may be committed by him on the spot.

Maqsood Parvez alias Billa and others v. The State 2000 SCMR 1859 ref.

(g) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/34 & 392‑‑‑Appreciation of evidence‑‑‑Eye‑witness though a relative of the deceased neither had a motive of his own to falsely implicate the accused in the case, nor had implicated them by mistake‑‑­Ocular testimony was supported by medical evidence and the incriminating recoveries‑‑‑Accused had been arrested soon after the occurrence and the weapons of offence had been recovered from their possession in presence of independent witnesses of the locality ‑‑‑Crime-­empties secured from the place of occurrence, according to Fire‑arms Expert Report, had been fired from the pistols recovered from the accused‑‑‑Confessional statements of the accused were proved to have been voluntarily made by them‑‑‑Plea taken by accused in their defence was patently sham and an afterthought which was not established on record‑‑ ‑Conviction and sentence of death awarded to accused under S.302(b)/34, P.P.C. were maintained in circumstances‑‑‑Trial Court, however, had omitted to award sentence to the accused for the offence of robbery which had been proved against them and for which they had been charged‑‑‑Accused were consequently convicted under S.392, P.P.C. and sentenced to undergo 10 years' R.I. each with fine there-under.

Naqeebullah and others v. The State PLD 1978 SC 21; 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; Syed Iqbal Hussain v. Mst. Sarwari Begum PLD 1967 Lah. 1138; Muhammad Fazal and another v. The State 1982 SCMR 129; Ali Muhammad and another v. The State 1985 SCMR 1834; State through Advocate‑General, Sindh v. Farman Hussain and others PLD 1995 SC 1; Arif Masih and another v. The State PLD 2001 SC 398; Haq Nawaz and another v. The State 2000 SCMR 5785; Muhammad Bashir Alam v. The State PLD 1958 SC 1; Allah Dad and another v. The State 1995 SCMR 142; Ansar Ahmad Khan Barki v. The State and another 1993 SCMR 1660; Saee and others v. The State 1984 SCMR 1069; Atta Muhammad v. The State 1985 SCMR 181; Shahruddin v. Allah Rakhio and 5 others 1989 SCMR 1461; Muhammad Akbar and 2 others v. The State PLD 1991 SC 923; Abdul Jabbar v. The State PLD 1964 SC 81; Mitho v. The State PLD 1963 (W.P.) Kar. 1; Hayat v. The State 1977 SCMR 340; Maqsood Parvez alias Billa and others v. The State 2000 SCMR 1859; Parvez and 2 others v. The State 1998 SCMR 1976; Haq Nawaz and others v. The State 2000 SCMR 785; Ch. Muhammad Yaqoob v. The State 1992 SCMR 1983 and Muhammad Gul v. The State 1991 SCMR 942 ref.

(h) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Appreciation of evidence‑‑‑Confession‑‑‑Retracted confession is sufficient to sustain a conviction for capital offence if the Court finds the, same to be true and voluntary‑‑‑Corroboration to a confession is sought only as a matter of prudence.

Haq Nawaz and others v. The State 2000 SCMR 785 and Ch. Muhammad Yaqoob v. The State 1992 SCMR 1983 and Muhammad Gul v. The State 1991 SCMR 942 ref.

(i) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 392‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance, (VI of 1979), S.17(4)‑‑‑Conviction‑‑‑Charge with regard to robbery committed by accused was proved but Trial Court omitted to award sentence therefore‑‑‑Federal Shariat Court convicted accused persons under S.392, P.P.C. and sentenced them to undergo ten years R.I. with fine.

Abdul Karim Khan Kundi for Appellants.

M. Sharif Januja for the State.

Date of hearing: 30th November, 2001.

2002 P Cr. L J 1478

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, J

MASHO KHAN and 3 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.243‑1 of 2001, decided on 14th May, 2002.

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

‑‑‑‑S. 367‑‑‑Judgment‑‑‑Language and contents of‑‑‑Judgment must contain sufficient details qua facts of case, points for determination, decision thereon and reasons for decision‑‑‑Court while convicting the accused was .also under legal obligation to specify offence of which accused was convicted and would also cite relevant section of law under which he was sentenced‑‑‑Failure of Trial Court to pass sentence under appropriate section of Penal Code and to specify the same in its judgment, would render judgment unsustainable‑‑ ‑Compliance with S.367, Cr.P.C. was essential in accordance with its terms and departure therefrom was not permissible in law‑‑‑Use of word "shall" in S.367(2), Cr.P.C. implied that provision in question was not permissive but imperative.

Abdul Wahab and 4 others v. The State 1984 PCr.LJ 1921; Farzand Ali v. The State 1983 PCr.LJ 398; Muhammad Hussain and 8 others v. The State and others 1980 PCr.LJ 822; Issa Khan and others v. The State PLD 1987 Quetta 174; Muhammad Ghayoor alias Ghauri and others v. The State 1986 PCr.LJ 2344; Ghulam Hussain and another v. The State 1986 PCr.LJ 864; Intaz Ali and 3 others v. The State 1968 PCr.LJ 953; Muhammad Ramzan v. The State KLR 1985 Cr.C. 311 and Mudassar alias Jimmy v. The State 1996 SCMR 3 ref. .

(b) Offences Against Property (Enforcement of Hudood) Ordinance (V1 of 1979)‑‑‑

--S.20—Punishment for Haraabah liable to Ta'zir‑‑‑Provision of S.20 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was merely an enabling provision and empowered the Court to inflict punishment for offences of dacoity, robbery or extortion, in those cases of Haraabah liable to Ta'zir wherein either offenders were not liable to punishment provided for under S.17 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, or for which proof in either of form mentioned in S.7 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was not available‑ ‑‑Section 20 of Offences Against Property (Enforcement of Hudood ) Ordinance, 1979 being not a penal provision, a person could, by no stretch of imagination, be convicted thereunder.

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

‑‑‑‑S. 537‑‑‑Curable defects‑‑‑Defects of formal nature, arising from inadvertence only could be cured under S.537, Cr.P.C. and it was never intended .to allow Court to violate or disobey an express provision of law and would not apply to an infringement of a statutory requirement.

Raja Israr Ahmad Abbasi for Appellants.

Qari Abdul Rashid for the State.

Date of hearing: 14th May, 2002.

2002 P Cr. L 1 1535

[Federal Shariat Court]

Before Fazal flahi Khan, CJ and Dr. Fida Muhammad Khan J

MUSHKI ALAM and 2 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.31/P of 2001, decided on 18th February, 2002.

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

‑‑‑‑Arts. 3/4‑‑‑Appreciation of evidence‑‑‑Complainant/Investigating Officer had given a natural version of occurrence‑‑‑Report of Chemical Examiner Which was available on record, was in positive‑‑‑Witness was thoroughly cross‑examined, but his credibility with regard to recovery of narcotics from accused had riot been shattered‑‑=Accused persons could not prove alleged enmity of complainant towards them‑‑‑Alleged plantation of narcotics by Investigating Officer on accused at place of occurrence, was highly improbable in circumstances alleged by accused and it did not appeal to common sense, especially when statement of Investigating Officer was supported by witnesses‑‑‑Defence witness in spite of his close friendship with accused did not visit police station to depose that accused were innocent and he also did not accompany accused when police was taking accused alongwith them‑‑‑Conduct of defence witness, in circumstances, had made his statement unreliable‑­---No other disinterested persons appears to support defence plea ‑‑‑ The Nakabandi was arranged after getting prior information to apprehend smuggler/trafficker, it was required to associate disinterested and preferably persons, of locality, but non‑observance of said pre‑condition by itself was not fatal to prosecution case when huge quantity of narcotic, was recovered and no evidence attributing any malice for false involvement of accused was provided‑‑‑Nothing had been brought on record, even after thorough cross‑examination of prosecution witnesses to show malice for false charge or for substituting accused for real culprit‑‑‑Prosecution having successfully proved its case against accused beyond any reasonable doubt, judgment of Trial Court passed after proper appraisal of entire evidence could not be interfered with.

Javed A. Khan for Appellants.

Malik Ahmad Jan, Dy, A.G., N.W.F.P for the State.

Date of hearing: 18th February, 2002.

2002 P Cr. L J 1556

[Federal Shariat Court]

Before Ch. Ejaz Yousaf, J

SPEEN KHAN‑‑‑Petitioner

Versus

MUHAMMAD HASSAN ULLAH and another‑‑‑Respondents

Criminal Revision No.7/Q of 2001, decided on 27th February, 2002.

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

‑‑‑‑‑S. 12‑‑‑Penal Code (XLV of 1860), S.377‑‑‑Constitution of Pakistan (1973), Art. 203‑DD‑‑‑Revision petition‑‑‑Sessions Court by means of the impugned order had transferred the case to the file of Judicial Magistrate for trial, holding that ex facie the case did not attract S.12 of the Offence of Zina. (Enforcement of Hudood) Ordinance, 1979 and being a case under S.377, P.P.C. was not triable by a Court of Session‑‑‑Admittedly the place from where the victim was taken to another place where he was subjected to sodomy by the accused were two distinct and separate places and though actual distance between them was not available on record yet the fact that the abductee was carried in a rickshaw shows that the said distance was substantial and could not be covered on foot‑‑‑Sessions Court, therefore, without recording any evidence, particularly statement of the victim, could not have concluded that prima facie S.12 of the said Ordinance was not attracted‑‑‑Impugned order was consequently set aside and the case was remanded to the Sessions Court with consent of the parties for decision in accordance with law‑‑‑Revision petition was disposed of accordingly.

Amjad Hussain v. Khalid Mehmood and others PLD 1989 FSC 11 rel.

Muhammad Tufail v. The State PLD 1984 FSC 23 ref.

(b) Jurisdiction‑‑‑

‑‑‑‑ Determination of‑‑‑Question relating to jurisdiction although can be raised at any stage of proceedings and can be decided even without motion from any party and averments contained in the complaint/F.I.R. May be relevant for the purpose of taking cognizance and also for tentatively assessing the place and class of Court competent to hold trial ordinarily, yet question of jurisdiction cannot be conclusively determined unless some evidence is led in the case:

Amjad Hussain v. Khalid Mehmood and others PLD 1989 FSC 11 ref.

Abdul Aziz Khilji for Petitioner

Kamran Murtaza for Appellant No. 1.

Akhtar Zaman, Addl. A.‑G., Balochistan for the State.

Date of hearing: 27th February, 2002.

2002 P Cr: L J 1868

[Federal Shariat Court]

Before Fazal Hahi Khan, C. J. Dr. Fida Muhammad Khan and Ch. Ejaz Yousaf, JJ

KARAMAT KHAN and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Revision No.4‑P of 2000, decided on 13th February, 2002.

(a) Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss. 365/392/401‑‑‑Frontier Crimes Regulation (III of 1901), Ss.11 & 12‑‑‑Constitution of Pakistan (1973), Art.203‑DD‑‑‑Revisional jurisdiction of Federal Shariat Court and High Court‑‑‑Scope‑‑‑Accused persons had contended that they were charged for offences of dacoity and robbery which having been covered by definition of "Harrabah" were triable under Offences Against Property (Enforcement of Hudood) Ordinance, 1979 only; that trial‑of case conducted under the provisions of Penal Code as well as Frontier Crimes Regulation, 1901 by Assistant Political Agent/Additional District Magistrate, South Waziristan Agency, was patently illegal and that since Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was extended to Federally Administered Tribal Areas, trial of case ought to have been conducted under the said Ordinance‑‑Validity‑‑‑Contention was repelled because neither case was registered against the accused under provisions of Offences. Against Property (Enforcement of Hudood) Ordinance, 197.9 nor they were charged, tried or convicted thereunder by a Court competent to hold trial‑‑‑Appeal as well as revision were not preferred before forum prescribed by Offences Against Property (Enforcement of Hudood) Ordinance, 1979‑‑‑Order/judgment, even though passed without jurisdiction, had to be challenged in the same hierarchy‑‑‑Article 203‑DD of Constitution of Pakistan (1973) had empowered High Court 'to call for and examine record of any case decided by any Criminal Court under any law relating to enforcement of Hudood for purpose of satisfying itself as to correctness, legality or propriety of any finding, sentence or order recorded or passed, but it could not be done unless case squarely fell within ambit of Art.203‑DD of Constitution of Pakistan (1973)‑‑‑Revisional jurisdiction of High Court was exercisable in respect of those Criminal Courts which could be considered subordinate to High Court‑‑‑Since Courts constituted under Frontier Crimes Regulation, 1901 could, by no stretch of imagination, be considered subordinate to High Court, revision petition on that count too, was not maintainable‑‑‑Revision petition being misconceived and unwarranted by facts and law, was dismissed by Federal Shariat Court.

Noor Khan and others v. The State Criminal Appeal No.37‑P of 1995 and State v. Mst. Iqbal Bibi 1993 SCMR 935 ref.

(b) Administration of justice‑‑‑

‑‑‑‑ Order/judgment even though passed without jurisdiction had to be challenged in the same hierarchy.

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

‑‑‑‑Art. 203‑DD ‑‑‑Revisional jurisdiction of High Court, exercise of‑‑­Conditions to be satisfied‑‑‑Conditions to be satisfied were that the record which could be called, must pertain to any "decided case", that case must have been decided by any Criminal Court, and that decision should be in any way relating to "enforcement of Hudood".

(d) Appeal (Criminal)‑‑‑

‑‑‑‑General‑‑‑Jurisdiction‑‑‑If a Court not possessed of jurisdiction to try a case, wrongly assumed jurisdiction and exercised power not vested in it, appeal from its decision would he in same manner as an appeal would lie from decision made with jurisdiction.

Muhammad Ishfaque v. The State PLD 1973 SC 363; Rasool Bakhsh and others v. The State and others 1998 PCr.LJ 438; Nizamuddin v. The State 1999 PCr.LJ 1761 and Nazar Muhammad and others v. The State 1999 PCr.LJ 1636 ref.

Saeed Baig for Petitioners.

M. Sharif Janjua for the State.

Date of hearing: 13th February, 2002.

2002 P Cr. L J 1889

[Federal Shariat Court]

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

MUHAMMAD TAYYAB‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.237/I of 2001, decided on 3rd May, 2002.

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

‑‑‑‑Ss. 9(c) & 48‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3, 4 & 27‑‑‑Appreciation of evidence‑‑‑Appeal, withdrawal of‑‑­Jurisdiction to hear appeal‑‑‑Additional Sessions Judge, who was also a Judge, Special Court for Control of Narcotic Substances, delivered judgment in cases registered against accused under Arts.3/4 of Prohibition (Enforcement of Hadd) Order, 1979 in addition to offence under S.9(c) of Control of Narcotic Substances Act, 1997 and awarded sentences 'under two offences covered under two separate enactments of law‑‑‑Appeal for sentence awarded under S.9(c) of Control of Narcotic Substances Act, 1997 was filed by accused before High Court‑‑‑‑Accused in his appeal before Federal Shariat Court had challenged conviction and sentence awarded to him under Art.4 of Prohibition (Enforcement of Hadd) Order, 1979‑‑‑Appeal was not admitted to regular hearing by Federal Shariat Court as question arose as to whether Federal Shariat Court had jurisdiction to hear the appeal, specially when sentence awarded to accused/appellant under Art.4 of Prohibition (Enforcement of Hadd) Order, 1979 was less than 2 years‑‑­Accused prayed for return of memo. of appeal to him for submitting the same before High Court in view of provision of Art.27 of Prohibition (Enforcement of Hadd) Order, 1979‑‑‑Appeal being appealable before High Court, Federal Shariat Court allowed withdrawal of appeal filed before it with direction that the same be sent to the High Court which would decide same alongwith other appeal filed before it in the case under S.9(c) of Control of Narcotic Substances Act, 1997 so that conflict of opinion against same judgment could justifiably be avoided.

Muhammad Sharif v. The State PLD 1999 SC 1063 and Muhammad Nadeem v. The State Criminal Appeal No.112/I of 1998 ref.

Malik Muhammad Kabir for Appellant.

Muhammad Sharif Janjua for the State.

2002 P Cr. L J 1911

[Federal Shariat Court]

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

STATE through Advocate‑General, N.‑W.F.P., Peshawar‑ ‑‑Appellant

versus

HAZARATULLAH‑‑‑Respondent

Criminal Appeal No.46/P of 2001, decided or. 30th May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 417‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4‑‑‑Appeal against acquittal‑‑‑Allegation against accused, a truck driver, was that ten cartons of tincture containing 494 bottles had been recovered from the truck, driven by him‑‑‑Accused admitted recovery of cartons from his truck, but he explained that said cartons were handed over to him at goods forwarding agency which were to be delivered to a medical store in whose name bilties were made and that he was searching for the said Medical Store to deliver goods when police arrested him and took into possession truck alongwith its registration book and bilties and receipts‑‑‑Trial Court acquitted accused for the reason that accused when arrested possessed bilties and receipts which had fully supported the plea of accused that cartons were handed over to him as usual to be delivered to the Medical Store‑‑‑High Court accepted appeal against acquittal order passed by Trial Court for the reason that recovery of cartons from truck of accused and its ,contents had not been denied by accused‑‑‑High Court accepting appeal against acquittal of accused, set aside order of Trial Court with direction that Trial Court would direct prosecution agency to trace out the real culprit i.e. addressee/proprietor of Medical Store as well as person who had initially brought goods in question to the forwarding agency‑‑‑In absence of making such investigation, it would be impossible to convict a person found in possession of cartons containing contraband goods un mere statement of driver carrying goods that same were handed over to him by goods forwarding agency and pleaded innocence‑‑‑Not improbable that addressee could not have been traced if proper investigation was made.

Malik Ahmad Jan, Dy. A.-G. for the State.

Pir Bakhsh Mehtab for Respondent.

Date of hearing 30th May, 2002.

2002 P Cr. L J 1982

[Federal Shariat Court]

Before Sardar Muhammad Dogar, J

QAMAR ZAMAN and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 17/L of 2002, decided on 23rd April, 2002.

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

‑‑‑‑Ss. 10(3) & 18‑‑‑Penal Code (XLV of 1860), S.354‑‑‑Appreciation of evidence‑‑‑Complainant, neither while lodging F.I.R. nor while appearing at the trial had given account of any steps taken by accused to show that attempt to commit Zina had been made by accused‑‑‑Sister of complainant who appeared as prosecution witness also did not narrate steps constituting attempt to commit Zina with complainant; she had rather stated that accused had tried to outrage modesty of complainant‑‑­Similar was stand and stance of father of complainant and prosecution witnesses‑‑‑ Prosecution, in circumstances, had not been able to prove the case against accused under Ss. 10(3) & 18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and that material evidence on record had shown that accused instead had committed offence under S.354, P.P.C.‑‑‑Conviction of accused under Ss.10(3) & 18 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was set aside and instead they were convicted and sentenced under S.354, P.P.C. accordingly.

A.D. Nasim for Appellants.

Qazi Muhammad Saleem for the Complainant.

Ch. Nizam‑ud‑Din Arif for the State.

Date of hearing: 23rd April, 2002.

2002 P Cr. L J 1

[Karachi]

Before Mushir Alam and Zia Perwez, JJ

MUHAMMAD UMAR and another--Applicants

versus

THE STATE--- Respondent

Criminal Bail Application No.336 of 2001, decided on 3rd August, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497(1), third proviso---Penal Code (XLV of 1860), Ss.324/353/ 147/149---Bail on ground of statutory delay---Accused were behind the bars for over 4-1/2 years and since over two years proclamation in respect of absconding co-accused had not been published as required under the law on account of paucity of funds---Accused could not be deprived of the liberty without due process of law and such liberty could not be curtailed for the fault of the prosecution and the State--­Mere allegation that the accused were involved in attack on a police party, ipso facto, would not prove their guilt or brand them as hardened and desperate criminals without putting them to trial---No delay could be attributed to accused and they could not be made to suffer for the lethargy and slackness on the part of prosecution---Trial of accused was not yet in sight---Bail was allowed to accused in circumstances.

Riasat Ali's case PLD 1968 SC 353; Akber Mehmood's case PLD 1974 SC 224; Malik Ghulam Jilani's case PLD 1975 Lah. 210; 1994 PCr.LJ 12 and 1978 SCMR 248 ref.

Abdul Baqi Jan for Applicants.

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

Date of hearing: 24th July, 2001.

2002 P Cr. L J 5

[Karachi]

Before Wahid Bux Brohi, J

MUHAMMAD ASLAM and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Applications Nos.770 and 883 of 2001, decided on 28th August, 2001.

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

----S. 497---Penal Code (XLV of 1860), Ss.409/109/34---Prevention of Corruption Act (I1 of 1947), S.5(2)---Bail---Accused were apprehended at the spot and it was too early to remark that they had absolutely no dominion over the property---Accused were charged with an offence punishable with imprisonment for life or ten years and, prima facie, their act amounted to an offence against society--­Besides, the accused belonged to police who were duty-bound to prevent and detect crime, but they had involved themselves in the alleged crime---Discretion, as such, could not be exercised in favour of such accused, at this stage---Bail was refused to accused in circumstances.

Muhammad Younus v. The State 2001 PCr.LJ 157 distinguished.

Sabir Hussain v. State 1999 PCr.LJ 958; Muhammad Shafi v. D.I.G. of Police, Multan 1993 PCr.LJ 201; Amjad Khan v. State 1996 PCr.LJ 1469; Janas Khan v. State 1996 PCr.LJ 958; Muhammad Yaqoob v. State 1994 PCr.LJ 1116; Imtiaz Ahmed v. State PLD 199? SC 545; Tariq Bashit v. State PLD 1995 SC 34; Sikandar A. Karim v. The State PLD 1995 Kar. 73; Gulzar Hussain Noor v. State 1992LJ 628 and Muhammad Arshad v State 1996 SCMR 74 ref.

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

----S. 497(1)---Bail in cases not falling within prohibitory clause--­Court would be justified in declining bail to an accused even in respect of offences not falling under prohibitory clause of S.497(1), Cr.P.C. if there existed a recognized exceptional circumstance like an offence against the society in which case refusal of bail will be a rule and grant of bail an exception.

Sikandar A. Karim v. State PLD 1995 Kar. 73 ref.

Umer Farooq Khan and Waheed Kazi for Applicants.

Khursheed Hashmi Dy. A.-G. for the State.

Date of hearing: 24th August, 2001.

2002 P Cr. L J 9

[Karachi]

Before Muhammad Moosa K. Leghari, J

Mst. GUL REZA and others--- Applicants

versus

THE STATE and others---Respondents

Criminal Miscellaneous No.274 and Miscellaneous Applications Nos. 1574 and 1575 of 2001, decided on 1st August, 2001.

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

-----S. 561-A---Quashing of proceedings-- -Neither any order was passed nor any process was issued by any Court in the complaint case, therefore, the question of making such order as might be necessary to give effect to any order under the Criminal Procedure Code or to prevent abuse of process of any Court did not arise at all---High Court could not assume the role of investigation as the authority to register and investigate the case in law vested in the police and not in the Court---Petition ex facie appeared to be tainted with malice and had been filed to thwart the process of law and the same was -dismissed in limine being not maintainable.

Ahmed Saeed v. The State 1996 SCMR 186 and A. Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353 ref.

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

----S. 561-A---Quashing of proceedings---Criminal proceedings are not barred in presence of civil proceedings---Civil and criminal actions can be pursued simultaneously.

Khawaja Sharful Islam for Applicants.

Qazi Wali Muhammad for the State.

2002 P Cr. L J 14

[Karachi]

Before Wahid Bux Brohi, J

SARWAR---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.781 of 2001, decided on 13th August, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/365/147/148/149--­Bail---Three co-accused in the case had been acquitted by Trial Court under S.265-K, Cr.P.C. for lack, of evidence---Allegation against accused was that he was present in the cell where five persons were brought and killed---No new evidence had been brought against the accused on the record---Guilt of accused called for further inquiry in circumstances and he was released on bail accordingly.

Miss Farkhanda Jabeen for Applicant.

Fazalur Rehman, State Counsel.

Date of hearing: 13th August, 2001.

2002 P Cr. L J 17

[Karachi]

Before Muhammad Afzal Soomro, J

MUHAMMAD ALI SHAR---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.344 of 2001, decided on 4th August, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497--Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.4---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Penal Code (XLV of 1860), S.337-H(ii)---West Pakistan Arms Ordinance (XX of 1965), S.13-A---Bail---Jurisdiction of Court---Offence against accused clearly fell under S.395, P.P.C. which was committed with Klashnikov, an automatic weapon, and the same was covered by the Schedule attached to the Suppression of Terrorist Activities (Special Courts) Act, 1975---Trial Court was consequently directed to return the file to the Sessions Judge for onward transfer to the Special Court, where the accused was at liberty to file the bail application---Bail application was disposed of accordingly.

PLD 1994 SC 747; Jehangir v. The State 1999 PCr.LJ 476; Azhar Hussain and others v. Government of Punjab 1992 PCr.LJ 2308; Muhammad Shareef v. The State 1992 PCr.LJ 1219; Mst. Qamer-un-Nissa v. The State PLD 2000 Kar. 339; Nawaz Ali and others v. The State 2001 PCr.LJ 521 and Allah Din and others v. State 1994 SCMR 717 ref.

Awan Rehmatullah Nadeem for Applicant.

Altaf Hussain Surahio for the State.

Date of hearing: 2nd July, 2000.

2002 P Cr. L J 25

[Karachi]

Before Muhammad Afzal Soomro, J

Haji GUL WALI KHAN---Applicant

versus

THE STATE---Respondent

Criminal Miscellaneous Applications Nos.S-137 and 127 of 2001, decided on 24th July, 2001.

Criminal Procedure Code (V of 1898)---

----S. 516-A---Penal Code (XLV of 1860), Ss.324/353/379/511/34--­Custody of vehicle on Superdari---Applicant was the owner of the Oil Tanker---Case was old or more than a year and no charge-sheet, interim or final, had yet been submitted in the Court---Oil Tanker was kept in the police station in an open space without any shade or cover and if it remained there for an indefinite period it was likely to go bad and rusty---Applicant was given the custody of the Oil Tanker in circumstances with the direction to produce the same in Court as and when required by the Trial Court.

Saeed Ahmed B. Bijarani for Applicant.

Abdul Fatah Mughal for the State.

Date of hearing: 24th July, 2001.

2002 P Cr. L J 29

[Karachi]

Before Wahid Bux Brohi, J

NAZAR HUSSAIN SHAH and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Applications Nos.683 and 794 of 2001, decided on 27th August, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/34---Bail--­Accused were not nominated in the F.I.R. and had been implicated in the case at a belated stage---Role ascribed to accused was almost similar to that of co-accused who had already been admitted to -bail--­Evidence regarding involvement of accused in conspiracy through communication on mobile telephone had not positively come on record---Case against accused, thus, needed further probe and rule of consistency was also attracted in their favour---Accused were admitted to bail in circumstances.

Raza Hashmi and Fazal Haq Khan for Applicants.

Khalid Shah for the State.

Date of hearing: 27th August, 2001.

2002 P Cr. L J 34

[Karachi]

Before Muhammad Moosa K. Leghari, J

INAYATULLAH---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 117 of 1999, decided on 20th July, 2001.

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

----S. 302---Qanun-e-Shahadat (10 of 1984), Art.37---Extra-judicial confession---Extra-judicial confession being a weak piece of evidence needs corroboration without which it would not be sufficient to base conviction thereon.

2000 SCMR 528 ref.

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

----S. 302---Appreciation of evidence---Benefit of doubt---Identity of the accused as killer of the deceased was not established through any of the three prosecution witnesses who claimed to be either in the company of the deceased or being present around the scene of offence at the time of occurrence---Recovery of the pistol at the instance of accused was of no value as the same had not been sent to the Fire-arm Expert for examination---Extra-judicial confession allegedly made by accused was not corroborated by any independent evidence--­Accused was acquitted on benefit of doubt in circumstances.

1995 SCMR 127; PLD 1981 SC 142; Criminal Jail Appeals Nos. 106, 107 and 108 of 1995 (unreported); 2000 SCMR 528; War Hayat's case 1995 SCMR 896 and Tariq Pervez v. The State 1995 SCMR 1345 ref.

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

----S. 302---Appreciation of evidence---Benefit of doubt---Where a single circumstance creates doubt in a prudent mind, its benefit has to be given to the accused not as a matter of grace but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345. ref.

A.Q. Halepota for Appellant.

Habib-ur-Rasheed for A.-G., Sindh for the State.

Date of hearing: 21st November, 2000.

2002 P Cr. L J 51

[Karachi]

Before Mushir Alam and Muhammad Moosa K. Leghari, JJ

ABDUL SATTAR and others---Appellants

versus

THE STATE---Respondent

Criminal Appeals Nos. 257, 316, 140, 181 of 1996 and 3 of 2000 decided on 8th February, 2001.

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

----Ss. 13-E & 13-D---Criminal Procedure Code (V of 1898), S.103--­Appreciation of evidence---Non-compliance of procedure provided in S.103, Cr.P.C.---Effect---Roznamcha entry had not been produced by the prosecution to prove that the police, in fact, had proceeded to the venue to recover the alleged weapons from the accused---Such lapse on the part of prosecution had cut at the roots of its case rendering the entire episode doubtful and it, by itself, was enough to make the prosecution version unbelievable- --Weapons allegedly recovered from the accused were neither sealed do the spot nor the same were sent to the Ballistic Expert- --Accused were not confronted with the weapons recovered from them in their statements recorded under S.342, Cr.P.C., even no question was put to them if they possessed, licences for the same---No private person was associated with the recovery proceedings and the record did not reveal as to whether any efforts were made to persuade any person from the locality to act as witness of recovery which was a flagrant violation of the provisions of S.103, Cr.P.C. making the recovery of weapons extremely doubtful---Accused were acquitted in circumstances.

Fareed Ahmed Langra v. The State 1998 PCr.LJ 1368; Qalandaro's case 1997 MLD 1632; Loung through Superintendent, Central Prison, Hyderabad v. The State 1999 PCr.LJ 595; Sajjan v. The State 1998 PCr.LJ 1399; Abdul Mujeeb v. The State 1998 PCr.LJ 1381 and Abdul Wadood v. The State 2001 PCr.LJ 173 ref.

(b) Criminal trial---

---- Entry in Roznamcha---Non-production of entry in Roznamcha by the prosecution in Court to prove the movement of police from the police station to the place of recovery of weapons cuts at the root of the prosecution case making the entire episode doubtful and the prosecution version unbelievable.

Fareed Ahmed Langra v. The State 1998 PCr.LJ 1368 and Qalandaro's case 1997 MLD 1632 ref.

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

----S. 13-D---Non-sealing of recovered weapons on the spot ---Effect--­Conviction under S.13-D of the Arms Ordinance, 1965, cannot be maintained unless the weapons allegedly recovered were sealed on the spot and the opinion of the Forensic/Ballistic Expert is produced on record to prove that the same were in functioning order.

Loung through Superintendent, Central Prison. Hyderabad v. The State 1999 PCr.LJ 595 and Sajjan v. The State 1998 PCr.LJ 1399 ref.

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

----S. 342---Examination of accused---Every incriminating piece of evidence has to be brought to the notice of the accused and unless-he is confronted with the material available in evidence against him, conviction cannot be sustained.

Noorul Haque Qureshi, Allah Bachayo Soomro and Syed Imdad Ali Shah for Appellants.

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

Date of hearing: 8th February, 2001.

2002 P Cr. L J 138

[Karachi]

Before Wahid Bux Brohi, J

MUHAMMAD TAHIR BHATTI---Petitioner

versus

THE STATE---Respondent

Criminal Revision No.38 of 2000, decided on 9th August, 2001.

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

----Ss. 195, 476 & 476-A---Procedure in cases mentioned in S.195, Cr.P.C.---Forwarding of cases for trial by Courts having jurisdiction---Court where forgery or perjury is committed is competent to proceed itself against the culprits, but when it considers-the., matter to be adjudicated upon by some other Court of competent s jurisdiction, it may forward the case to that Court under S.476-A, Cr.P.C.

Sher Adat Khan v. Sahib Din 1989 PCr.LJ 1299; Abdul Hakeem v. The State 1994 SCMR 1103 and Ch. Feroze Din v. Dr. K.M. Munir 1970 SCMR 10 ref.

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

----S. 193---Appreciation of evidence---Accused had used a for god affidavit in the District Court and drawn the amount which he retained for a period of three years---Proceedings against the accused were, thus, validly taken in public interest---No legal flaw existed in the proceedings taken by the District Judge in forwarding the case to Judicial Magistrate who had legally held the trial and convicted and sentenced the accused on proper assessment of evidence produced before him---Impugned order having been based on sound footing called for no interference---Revision petition was dismissed accordingly.

Sher Adat Khan v. Sahib Din 1989 PCr.LJ 1299; Abdul Hakeem v. The State 1994 SCMR 1103; Ch. Feroze Din v. Dr. K.M. Munir 1970 SCMR 10; Yousuf Ali v. Muhammad Aslam Zia PLD 1958 SC (Pak.) 104; Mansab Ali v. Amir PLD 1971 SC 124; Mst. Sadiqa Shafi v. Sqn. Ldr. (Retd.) Naveed Najum 1998 PCr.LJ 1106 and Abdul Haleem v. State PLD 1999 Pesh. 66 ref.

Muhammad Ashraf Bhatti for Petitioner.

Attaullah Khan for the Complainant.

Muhammad Ismail Memon for the State.

Date of hearing: 9th August, 2001.

2002 P Cr. L J 177

[Karachi]

Before Muhammad Afzal Soomro, J

DUR MUHAMMAD and another- --Applicants

versus

THE STATE---Respondent

Criminal Bail Application No. 87 of 2001, decided on 7th June, 2001.

Criminal Procedure Code (V of 1898)--

----S. 497---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 11/16---Penal Code (XLV of 1860), Ss.324/337-A(i)/148/149---Bail, grant of---Names of the accused appeared in the F.I.R.--­Offence against the accused was punishable to the extent of imprisonment for life---Contention of the accused that they had been attributed no overt act and they had not taken part in causing injuries either to the complainant or to the prosecution witnesses, was repelled as the offence mainly pertained to Ss.11/16 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and for that the accused had fully assisted co-­accused in the commission of the crime and in circumstances they could, not escape constructive liability---Delay in recording F.I.R. had fully been explained ---Kidnapee had not been recovered---Case was riot fit where the bail could be granted to the accused.

Pathan and others v. The State 1993 PCr.LJ 731; Aman Ullah and another v. The State 1993 PCr.LJ 2110; Manazar Hussain Shah v. The State 1999 PCr.LJ 86 and Ghulam Mustafa alias Sathi and others 2000 PCr. LJ 2053 ref.

Sarfraz Khan Jatoi for Applicants.

Muhammad Ismail Bhutto for the State.

2002 P Cr. L J 186

[Karachi]

Before Zahid Kurban Alavi, Ata-ur-Rehman and S.A. Rabbani, JJ

ANWAR ALI and another---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.494 of 2000, decided on 17th September, 2001.

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

----S. 497---Control of, Narcotic Substances Act (XXV of 1997), Ss.6, 7, 9, 12, 14, 15 & 51---Bail, grant of---Bail had been sought on ground of statutory delay---Accused were behind the bars for more than two years---Delay occurred due to inordinate delay in framing charge against the accused and contradictory reports of Chemical Examiner---Charge was to be framed within a reasonable period, but it took two years to frame the same---Even if accused were charged with indulging in activities which were not approved by the society, the society which claimed to be looking after the law and order situation and as custodian of law should follow the law in toto---Delay would tantamount to negligence and would defeat the very purpose behind which civilized societies pride themselves having a legal order which would serve as a shining example to others---Accused had been behind the bars for more than two years and case against them had not proceeded, and such delay had occurred due to no fault of the accused---Accused were granted bail, in circumstances.

Gul Zaman v. The State 1999 SCMR 1271; Liaquat Ali v. The State 2000 PCr.LJ 1317; Munawar Hiissain Manj v. The State 2000 SCMR 1585; Akhtar Hussain Shah v. The State 1999 PCr.LJ 225; Ashok v. The, State 1997 SCMR 436; Abdul Majeed v. The State Criminal Bail Application No.138 of 1999; Irshad Ali v. The State Criminal Bail Application No.41 of 1999; Mehboob Rehman v. The State 2000 PCr.LJ 569; Gul Hassan v. The State Criminal Bail Application No. 192 of 1998 and The State v. Syed Abdul Qayoom 2001 SCMR 14 ref.

S.A. Rabbani, J. (contra); Ata-ur-Rehman, J. concurring with Zahid Kurban Alavi, J.---

(b) Administration of justice---

---- Principles of---Administration of justice required that a matter should proceed and be adjudicated expeditiously---If an accused deserved to be hanged for the offence alleged against him, he should be tried without unreasonable delay and executed---It would not be just that in a case where only two or three witnesses were to be examined, the accused should first be left to languish in jail for, years and thereafter try and execute him.

Mehboob Rehmari v. The State 2000 PCr.LJ 569; State v. Qaim Ali Shah 1992 SCMR 2192; Gul Zaman v. The State 1999 SCMR 1271; Muhammad Samiullah Khan and another v. The State PLD 1963 SC 237; Ghulam Muhammad v. Muzammal Khan anal 4 others PLD 1967 SC 317 and Khawaja Fazal Karim v. The State and others 1986 SCMR 483 ref.

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

----Ss. 497, 498 & 561-A--Control of Narcotic Substances Act (XXV of 1997), S.51---Grant of bail in hardship cases---Even if Ss.497 & 498, Cr.P.C. were not applicable to cases under Control of Narcotic Substances Act, 1997, the appropriate and hardship cases would attract the provisions of S.561-A, Cr.P.C.---Legislature had not excluded the provisions of S.561-A, Cr.P.C. in view of S.51 of Control of Narcotic Substances Act, 1997 and it was open for the Courts to press provisions of S.561-A, Cr.P.C. in appropriate and hardship cases.

Muhammad Ayaz Soomro for Applicants.

Gul Hassan Solangi for the State.

2002 P Cr. L J 210

[Karachi]

Before Zahid Kurban Alavi and S.A. Rabbani, JJ

ASGHAR ALI and another---Applicants

Versus

THE STATE---Respondent

Criminal Bail Applications Nos.D-19, D-56, D-100, D-101 and D-127 of 2001, heard on 26th April, 2001.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 498-A---Penal Code (XLV of 1860), Ss.324, 337-A(i), 337-F(i), 337-F(iv), 337-H(ii), 457/380/114/504/34---Offences Against Property (Enforcement of Hudood) Ordinance (VII of 1979), Ss.14 & 17(2)---Interim bail, confirmation of---Jurisdiction of Court---Prosecution had raised certain technical points to the effect that since the interim pre-­arrest bail was granted, the matter should be referred back to the same Judge; that in any matter where one Judge had passed an interim order then for the purposes of final order the matter had to be placed before the same Judge; that same principle was applicable in respect of a bail that was granted to one of the accused and if the co-accused had also moved the bail application, same was also to be heard by the Judge who had granted or refused the bail application of the main accused---Validity---In view of the concept of providing fast, efficacious and inexpensive justice at the door step of an individual, a person would be entitled to get his matter heard and disposed of instead of chasing a Judge all over the Province as Judges of High Court sitting in Circuit Bench in one District often shift to another District and the accused would have to move application for confirmation of bail before the same Judge sitting in another District---Even otherwise the Courts should not make a fetish of technicalities to that extent where the object was relegated to the background and mere technicalities were allowed to rule the situation--­Any Judge could look into a bail application and pass orders according, to law---Matters for hearing of the bail applications were ordered to be fixed after obtaining necessary permission of the Chief Justice.

The State v. Zubair and 4 others PLD 1986 SC 173; Muhammad Taj v. Muhammad Akhtar and another 1997 SCMR 1336; Umed Ali v. The State PLD 1987 Kar. 372; 1968 SCMR 924; PLD 1984 SC 341; Shamsuddin and another v. The State PLD 1996 Kar. 382 and Mir Khan v. The State 1999 SCMR 790 ref.

Muhammad Ayaz Soomro for Applicants (in Criminal Bail Application No. 19 of 2001).

Shahbaz Ali Brohi for Applicants (in Criminal Bail Application No.56 of 2001).

Yasir Khan E. Babar for Applicants (in Criminal Bail Application No. 10 of 2001).

Yasin Khan E. Babar for Applicants (in Criminal Bail Application No. 101 of 2001).

Altaf Hussain Surahio for Applicants (in Criminal Bail Application No. 127 of 2001).

Gul Hasan Solangi, A.A.G. for the State.

Date of hearing: 26th April, 2001.

2002 P Cr. L J 220

[Karachi]

Before Zahid Kurban Alavi, J

SABZAL alias SOZOO---Applicant

versus

THE STATE---Respondent.

Criminal Bail Application No.S-669 of 2001, decided on 12th October, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/148/149---Bail, grant of---Name of the accused though appeared in the F.I.R., but six people were involved in the alleged incident of murder and from those six persons three were riding on motorcycle---It was difficult to appreciate that while driving the motorcycle and in a state of motion, the accused fired upon the deceased which resulted in his death---Names of the accused had also been kept in Column No.2 of the challan---Case against the accused requiring further probe, bail was granted to them.

Akhtar Zaman v. The State PLJ 2001 Cr.C. 1124 and Faraz Akram v. The State 1999 SCMR 1360 ref.

Muhammad Ayaz Soomro for Applicant.

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

ORDER

2002 P Cr. L J 230

[Karachi]

Before Zahid Kurban Alavi and Muhammad Mujeebullah Siddiqui, JJ

LIAQUAT ALI ---Appellant

versus

THE STATE--Respondent

Criminal Appeal No.83 of 1994, decided on 31st October, 2001.

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

----S. 408---Prevention of Corruption Act (II of 1947), S.5(2)--­Appreciation of evidence---Prosecution witnesses had specifically stated that the pay-in-slip through which the amount of Rs.10,000 was deposited in the Bank was bearing the signatures of the accused and this version had gone unchallenged---Absence of signature of the accused on his statement recorded under S.342, Cr.P.C. was not fatal to the prosecution case as no prejudice was shown to have been caused to him by such omission---Trial Court had rightly appreciated the evidence and the impugned judgment did not warrant any interference--­Conviction and sentence of accused were upheld in circumstances.

2000 MLD 595; PLD 1994 Pesh. 279; 1997 PCr.LJ 539; Criminal Appeals Nos.133 and 134 of 2000 and Confirmation Case No. 14 of 2000; Mst, Sultan Zari v. State 1986 PCr.LJ 1723; Muhammad Inayat v. The State 1985 PCr.LJ 469 and Munir Ahmed v. The .State Criminal Appeal No.43 of 2000 ref.

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

----Ss. 342 & 364(2)--Absence of signature of accused on his statement under S.342, Cr.P.C. and absence of certificate under S.364(2), Cr.P.C. in the handwriting of the Trial Judge is not ipso facto an illegality of such a nature as to vitiate the entire proceedings or make the proceedings from the stage of the recording of the statement of accused onward unsustainable in law, necessitating remand of the case to the Trial Court---On the contrary such omission is only an irregularity and the case is to be remanded to the Trial Court for fresh proceedings from the stage of recording of statement of the accused, if he is able to show that absence of his signature on his statement under S.342, Cr.P.C. or absence of the certificate of the Trial Judge in his own hand-writing has caused any prejudice to him resulting into injustice---Where no prejudice has been caused to the accused and no miscarriage of justice is shown to have taken place, the irregularity is curable and is not fatal to the conviction and sentence.

Munir Ahmed v. The State Criminal Appeal No.43 of 2000 ref.

Nooruddin Sarki for Appellant.

Nemo for the State.

Date of hearing: 24th August, 2001.

2002 P Cr. L J 247

[Karachi]

Before Muhammad Roshan Essani, J

MEVO---Petitioner

versus

THE STATE and 2 others---Respondents

Constitutional Petition No.S-183 of 2001, decided on 3rd August, 2001.

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

----Ss. 302/324/149---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3)---Criminal Procedure Code (V of 1898), S.154---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Registration of F.I.R.---Factum of the death of the deceased and the injuries on the person of the injured witness had not been denied---Senior Superintendent of Police had also moved the District Magistrate for holding judicial inquiry into the death of the deceased who was son of the petitioner---Incident apparently had two versions, one put forward by the petitioner and the other by the respondents---High Court in exercise of its Constitutional jurisdiction had the power to order registration of second F.I.R. if the same was found just, proper and equitable in an appropriate case---Facts and circumstances of the case had demanded the registration of the case--­S. H.O. was consequently directed to register the F.I. R. of the petitioner and investigate the case in accordance with law---Constitutional petition was accepted accordingly.

Anwar Shah v. Senior Superintendent of Police, Sheikhupura and 17 others 1999 PCr.LJ 1317; Bhoran Khatoon v. The State and 5 others 1999 PCr.LJ 1532; Syed Asif Majeed and 5 others V. A.D.C.(C)/ASC(L), Lahore and 15 others 2000 SCMR 998; Altaf Hussain v. Government of Sindh and another PLD 1997 Kar. 600; Akram Ali v. S.H.O., Kot Wali, Kasur and others PLD 1979 Lah. 320; Haji Ahmed v. Senior Superintendent of Police, Rahimyar Khan and others 1997 PCr. LJ 2069; Muhammad Afza v. Muhammad Ashraf and others 1996 PCr.LJ 489; Hamayoon Khan, and another v. Muhammad Ayoob Khan and others 1999 PCr.LJ 1706; Altaf Hussain v. S.H.O. and others 1993 MLD 2059; Muhammad Latif v. S.H.O., Police Station Saddar, Duniapur and others 1993 PCr.LJ 1992; Raja Gulzar Ahmed v. Mushtaq and others PLD 1998 Lah. 111; Mst. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119 ref.

(b) Constitution of Pakistan (1973)---

----Art. 199---Criminal Procedure Code (V of 1898), S.154--­Constitutional jurisdiction---Second F.I.R., registration of---No hard and fast rule exists regarding the registration of a second F.I.R. about the same occurrence---Where High Court in an appropriate case finds that the registration of second F.I.R. is just, proper and equitable, it can order for registration of the same.

Akram Ali v. S.H.O. Kot Wali, Kasur and others PLD 1979 Lah. 320; Haji Ahmed v. Senior Superintendent of Police, Rahimyar Khan and others 1997 PCr.LJ 2069; Muhammad Afzal v. Muhammad Ashraf and others 1996 PCr.LJ 489; Hamayoon Khan and another v. Muhammad Aybob Khan and others 1999 PCr.LJ 1706; Altaf Hussain v. S.H.O. and others 1993 MLD 2059; Muhammad Latif v. S.H.O., Police Station Saddar, Duniapur and others 1993 PCr.LJ 1992; Raja Gulzar Ahmed v. Mushtaq and others PLD 1998 Lah. 111; Mst. Ghanwa Bhutto and another v. Government of Sindh and another PLD 1997 Kar. 119 ref.

Muhammad Ishaque Khoso for Petitioner.

Abdul Sattar Kazi for the Proposed Accused.

Masood A. Noorani, Addl. A.-G., Sindh for the State.

2002 P Cr. L J 289

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

GUL MUHAMMAD SHAH---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 1300 of 2001, decided on 25th October, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/109/34---Bail---Enmity being a double-edged weapon cutting both ways, accused at bail stage could not be said to have been falsely implicated because of the enmity, as there was greater and stronger possibility of committing murder of the deceased for taking revenge of his brother---Two independent witnesses had implicated the accused for causing injuries to the deceased who had no axe to grind against him---Allegation of causing dagger injuries to the deceased against the accused was supported by medical evidence---Bail was declined to accused in circumstances.

1999 PCr.LJ 184 ref.

M.M. Aqil Awan for Applicant.

Qazi Wali Muhammad for the State.

2002 P Cr. L J 292

[Karachi]

Before Anwar Zaheer Jamali, J

Haji KHUDAN---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.S-389 and Miscellaneous Application No.877 of 2000, decided on 19th September, 2000.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 498-A---Penal Code (XLV of 1860), Ss.334/337-A(ii), (iii) & 147/148/149---Interim pre-arrest bail, grant of---Interim pre-arrest bail earlier granted to the accused was confirmed, but on one date of hearing the accused having remained absent, his bail was cancelled and non­ bailable warrants were issued against him---Counsel for the accused had submitted that due to issuance of non-bailable warrants the accused could not appear before the Court to explain the reason for his absence on the relevant date and that if said warrants were suspended the accused would surrender before the Court and would submit his application for grant of bail---No objection was raised on the part of the prosecution---By consent non-bailable warrants issued against the accused were suspended for a period of two weeks and in the meantime the accused was to appear before the Court for appropriate relief in the matter.

Muhammad Saleem Jesar for Applicant.

Rasheed Ahmed Qureshi, Asstt. A.-G. (waives Notice).

2002 P Cr. L J 303

[Karachi]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

JAVED ALI ---Applicant

versus

STATION HOUSE OFFICER, POLICE STATION GHOTIARI, DISTRICT

SANGHAR and another---Respondents

Criminal Miscellaneous Application No.D-385 of 2001, decided on 30th July, 2001.

Criminal Procedure Code (V of 1898)---

----S. 491---Habeas corpus petition---Plea for bail ---Detenus had been kept in the police officials residential quarter---Neither any entry regarding the arrest of the detenus was made in the Roznamcha Register nor in any other record of the police station, nor they were required in any case of that police station ---S.H.O. had made a crude attempt to cover the illegal action taken by him and his colleagues and his statement was contradictory and discrepant to the report of Court's Bailiff---Copies of the entries of Daily Diary and of the F.I.Rs. registered against the detenus appeared to have been managed and manoeuvred where after their remand was obtained from the Magistrate---Although bail plea ordinarily was not to be .considered in proceedings under S.491, Cr.P.C. yet in the peculiar facts and circumstances of the case the detenus were ordered to be released on bail---Home Secretary and Inspector-General of Police were directed to take necessary legal action against the delinquent Police Officers---Petition was disposed of accordingly.

Basharat Ahmed Jatt for Applicant.

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

2002 P Cr. L J 349

[Karachi]

Before Sarmad Jalal Osmany, J

GHULAM NABI---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No. 444 of 2001, decided on 8th November, 2001.

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

----S 302---Qanun-e-Shahadat (10 of 1984) Art. 22 ---Identification parade---Delayed identification test both with reference to the date of occurrence and the date when the accused was taken into custody, was always looked upon with the maximum caution by the Courts of law--­Evidentiary value of an identification parade where the accused was nominated without attributing to him his role in the crime was also minimal without corroborative evidence.

Asghar Ali v. The State 1992 SCMR 2088 and. The State v. Farman Hussain PLD 1995 SC 1 ref.

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

----S. 497---Penal Code (XLV of 1860), S.302---Bail, grant of-­Identification parade took place after more than six months of the date of incident which was a night time---Identification parade was not sufficient to clearly link the accused with the crime---Accused was entitled to the grant of bail in circumstances.

Gul Baig v. The State PLD 1964 Kar. 275, Muhammad Ali v. The State 1978 PCr.LJ 859 and Ghulam Nabi v. The State 1992 PCr.LJ 1852 ref.

Abdul Rasool Abbasi for Applicant.

Riazuddin Siddiqi for the State.

2002 P Cr. L J 406

[Karachi]

Before Muhammad Roshan Essani, J

JIARAM‑‑‑Applicant

versus

Choudhri ASLAM and 2 others‑‑‑Respondents

Criminal Miscellaneous Application No.80 of 2001, decided on 30th July, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 491 & 561‑A‑‑‑Application for recovery, protection and to set at liberty the alleged detenus‑‑‑Applicant was directed to deposit amount with Additional Registrar of the Court, but he failed to deposit the same even in extended period and the matter was pending since last 6 months‑‑­Applicant wanted to protract the proceedings ‑‑‑Averments made in the application had shown that it was a dispute between the tenant and landlord for which exclusive jurisdiction lay with Tenancy Tribunal under Sindh Tenancy Act, 1950‑‑‑Application being frivolous was dismissed.

Haji G.M. Gopang for Applicant.

Masood Noorani, Addl. A.‑G. for Respondents

2002 P Cr. L J 412

[Karachi]

Before Fait Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

MUSHTAQUE alias POLA‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.268 of 2001, decided on 5th July, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail, grant of‑‑‑Bail was sought on the ground of statutory delay‑‑‑Case diaries had shown that case was being adjourned for want of not only framing of the charge, but also for want of Ballistic Expert Report‑‑‑Deliberate delay was caused on the part of the prosecution which had not been explained‑‑‑No lapse on the part of the accused towards the delay‑‑‑Accused, in circumstances, had good prima facie case for grant of bail on the ground of statutory delay.

Muhammad Yousif v. The State 2000 SCMR 79 ref.

Qurban Ali Chohan for Applicant.

Masood A, Noorani; Addl. A.‑G. (on Court's Notice).

Muhammad Azim Panhwar, State Counsel

2002 P Cr. L J 430

[Karachi]

Before Wahid Bux Brohi, J

ABDUL QUDUS‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.1184 of 2001, decided on 26th September, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.420, 468, 471 & 109‑‑­Passports Act (XX of 1974), S.6(1)(a)(c)(b)‑‑‑Bail, grant of‑‑‑Accused was charged with offences which did not fall within the prohibitory clause of S.497, Cr.P.C.‑‑‑Offence against the accused, under Ss.468/471, P,P.C. were non‑cognizable ‑‑‑Bail could not be withheld as punishment‑‑‑Bail was granted to the accused.

Iftikhar Ali v. The State 1999 PCr.LJ 1239 and Muhammad Younus and another v. The State 2001 PCr.LJ 157 ref.

Tauqeer A. Khan for Applicant.

S. Khursheed Hashmi, Dy. A.‑G. for the State.

Date of hearing: 26th September, 2001.

2002 P Cr. L J 438

[Karachi]

Before Wahid Bux Brohi, J

MUHAMMAD NASEEM‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application, No.1213 of 2001, decided on 1st October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497 ‑‑‑Penal Code (XL of 1860), 5.324/34‑‑‑Bail, grant of‑‑‑Name of the accused was not shown at Entry made in the Station Diary of notice station at relevant date and time, but the accused had been described as co‑accused in the F.I.R. lodged after 10 days of the occurrence‑‑‑No ocular evidence was on record against the accused other than the version of complainant and no role had been directly assigned to him in the earlier report‑‑‑Even otherwise in the F.I.R., the fires had been attributed to co‑accused‑‑‑Earlier medical certificate had brought the offence of the accused within the category of Ghair Jaifa Mutlahima but according to the complainant it fell within the definition of Itlaf‑i‑Salahiyyat‑i‑Udw‑‑‑In view of two conflicting opinions, the benefit could be claimed by the accused‑ ‑‑Constructive liability of the accused could only be determined at the trial‑‑‑Case against the accused calling for further inquiry, he was entitled to bail.

Abdul Majeed for Applicant.

Zahid Khan for the Complainant.

Sharafat Ali Khan for the State.

Date of hearing: 1st October, 2001.

2002 P Cr. L J 450

[Karachi]

Before Ghulam Nabi Soomro and Atta‑ur-Rehman, JJ

ASHIQUE ALI‑‑‑ Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. D‑67 of 2001 heard on 13th September, 2001.

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

‑‑‑‑S. 13‑D‑‑‑Appreciation of evidence‑‑‑Station Diary which ought to have been produced by the complainant, had not been so produced in evidence ‑‑‑S.M.G. Rifle and ammunition allegedly recovered from the accused at no time were sealed and rifle was also not sent to Ballistic Expert for verification whether it was in working order or not and also its nature‑‑‑Said material defects were supported by the record‑‑‑Conviction and sentences awarded to the accused were set aside and he was acquitted in the case.

1999 PCr.LJ 595; 1998 PCr.LJ 1368; 1995 SCMR 1345 and 1997 MLD 1632 ref.

Asif Ali Abdul Razak Soomro for Appellant.

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

Date of hearing: 13th September, 2001.

2002 P Cr. L J 455

[Karachi]

Before Ghulam Nabi Soomro, J

DIAL and another---Applicants

versus

THE STATE---Opponent

Criminal Bail Application No. 493 of 2001, decided on 24th August, 2001.

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

----S. 498---Penal Code (XLV of 1860), S.302/34---Pre-arrest bail, confirmation of---Complainant and two eye-witnesses had filed their affidavits wherein they had exonerated both the accused---Case against the accused falling within the ambit of further inquiry, pre-arrest bail granted to the accused was confirmed.

1991 SCMR 111 and 1988 SCMR 474 ref.

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

----Ss. 182 & 211---False statement---Complainant in his F.I.R. had very clearly stated that he had seen accused armed with guns---Complainant in his affidavit filed in Court had stated that in fact the accused were not the culprits of the case and he had only suspected them---Glaring Go bye to a previous version as given by the complainant could not be allowed to go unnoticed and in that case provisions of Ss.182 & 211, P.P.C. would become redundant---Show-cause notice was ordered to be issued to complainant as to why a case under S.182/211, P.P.C. be not registered against him.

The trend of resiling from statements through affidavits by the prosecution witnesses is being witnessed since some time past. They do not hesitate in making changed statements even before Courts of law. If a glaring go bye to a previous version, is allowed to go unnoticed, the provisions of sections 182 and 211, P.P.C. shall remain redundant. Obviously, the police are unable to take cognizance of these misstatements or false statements. The stress to speak the truth always, is far more high in our religion. Qur'anic Verse 135 of Surat 4 (Alnisa) needs no elucidation. The complainant, therefore, needs to be questioned. A show-cause notice as to why a case under sections 182/211, P.P.C. be not registered against him be issued to the complainant.

1991 SCMR 111 and 1988 SCMR 474 ref.

Ahmed Bux Ansari for Applicants.

Muhammad Ismail Bhutto for the State.

2002 P Cr. L J 478

[Karachi]

Before Abdul Hameed Dogar, J

NIAZ AHMED alias BHOORA‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1420 and Miscellaneous Applications Nos. 1720 of 1999 and 322 of 2000, decided on 30th March, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16‑‑‑Bail, grant of‑‑‑Complainant had conceded that police had failed. to collect any implicating evidence against the accused except .statement of the prosecution witness made under S.161, Cr.P.C.‑‑­Prosecution throughout the investigation had not been able to record the statement of owner of the bungalow or any inmate thereof from where the girl was allegedly abducted to show that alleged abductee was employed and was working there at the relevant time‑‑‑Statement of the prosecution witness was not recorded under S.164; Cr.P.C.‑‑‑No one from the locality had been cited as witness‑‑‑Allegation against the accused requiring further inquiry, he was admitted to bail.

1994 PCr.LJ 2133 ref.

Fareed Ahmed A. Dayo for Applicant.

Dilawar Hussain for the State.

M. Nadeem for the Complainant.

2002 P Cr. L J 486

[Karachi]

Before Zahid Kurban Alvi, J

ARBAB and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑683 of 2001, decided on 24th October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.324, 337‑A(ii), 457 & 34‑‑­Bail, grant of‑‑‑Accused were not mentioned in F.I.R.‑‑‑Incident allegedly occurred in the odd hours of night and neither any recovery was effected nor identification parade was held‑‑‑Injured prosecution witness had not implicated the accused in his statement under 5.161, Cr.P.C.‑‑­Case against the accused was fit for bail.

Muhammad Saleem Jessar for Applicants.

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

2002 P Cr. L J 494

[Karachi]

Before Sarmad Jalal Osmany, J

SHAFI MUHAMMAD ---Applicant

versus

THE STATE---Respondent

Criminal Bail Application No.475 of 2001, decided on 13th November, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of--­Medico-legal evidence though was in accord with the ocular account, but the fact that as two of the injuries inflicted on the deceased had been certified as being sufficient to cause the death of the deceased, it was yet to be seen as to who had given the fatal blow since only one blow had been attributed to the accused ---Co-accused who had allegedly also caused injuries to the deceased had been let off by the police ---Bail was granted to the accused in circumstances.

Syed Madad Ali Shah for Applicant.

Muhammad Azeem Panhwar for the State.

2002 P Cr. L J 501

[Karachi]

Before Muhammad Roshan Essani, J

JARO alias ABDUL RAHIM‑‑‑Applicant

versus

SONO and 5 others‑‑‑Respondents

Criminal Miscellaneous Application No.374 and Miscellaneous Application No.773 of 2001, decided on 20th July, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.491 & 561‑A‑‑‑Application for search, recovery and production of alleged detenus in Court‑‑‑Dispute related to land between the landlord and the tenant for which remedy could be extended under Sindh Tenancy Act, 1950‑‑‑High Court was devoid of the jurisdiction and application was not maintainable and was liable to be dismissed.

Nisar Uner for Applicant.

2002 P Cr. L J 510

[Karachi]

Before Shabbir Ahmed, J

MIR AWAZ and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.788 of 1999, decided on 7th November, 1999.

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

‑‑‑‑S.497‑‑‑Penal Code (XLV of 1860), S.392/34‑‑‑Bail, grant of‑‑­Contention of the accused was that case against them required further inquiry as according to the F.I.R. three persons had snatched the car, whereas five persons were found in possession of the car and that the report was lodged with delay‑‑‑Contention was repelled for neither the delay in lodging the F.I.R. nor the version in number of the culprits, would make the case of the accused for further inquiry‑‑‑F. I. R. was lodged that three persons came in a car and two of them snatched the car from the driver by show of force, whereas the car was recovered when it was being driven and was intercepted with five persons, therefore, it could not be contended that case was of further inquiry‑‑‑One of the accused had confessed that he had committed the similar type of offences within the jurisdictions of various police stations‑‑‑Possibility could not be ruled out that in case the accused were released they would repeat the same crime‑‑‑Case of the accused being exceptional one, wherein the bail in spite of the offence being not falling under the prohibitory clause of S.497, Cr.P.C. could be declined.

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

‑‑‑‑S.497‑‑‑Grant of bail in cases not falling under prohibitory clause of S.497, Cr.P.C.‑‑‑Grant of bail in cases not falling under prohibitory clause of S.497, Cr.P.C. was a rule and refusal was an exception, but bail could be declined in extraordinary and exceptional cases, where there was likelihood of absconding of the accused; there was apprehension of the accused tampering with prosecution evidence; there was danger of offence being repeated if accused was released on bail, and the accused was a previous convict.

Tariq Bashir v. State PLD 1995 SC 34 ref.

Mumtaz Hussain Shah for Applicants.

Dilawar Hussain for the State.

2002 P Cr. L J 518

[Karachi]

Before Muhammad Afzal Soomro, J

SHAFIQUE AHMED and 4 others---Applicants

versus

THE STATE---Respondent

Criminal Bail Application No.368 of 2001, decided on 10th August, 2001.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/147/148---High Court (Lahore) Rules and Orders, Vo1.II1, Chap.11-C---Bail---Accused were not nominated in the F.I.R.---Nothing incriminating was recovered from the accused---Identification test held in the case was a hollow formality devoid of any legal sanctity being in violation of the prescribed Rules and Procedure---No specific role had been assigned to any of the accused at the time of identification---Eye-witnesses had not signed the identification memo. ---Identification test was held one month after the occurrence and on third day of the arrest of accused---Magistrate conducting the identification test had not appended his certificate at the foot of the identification memo. as contemplated in Chap. 11-C of High Court Lahore Rules and Orders, Vo1.III---Accused were admitted to bail in circumstances.

Gulab v. The State 1974 PCr.LJ 74; Mehar alias Fazal Muhammad v. The State 1978 PCr.LJ 176; Lashkari v. The State PLD 1981 Kar. 1; Lal Pasand v. The State PLJ 1981 SC 407; Akbar v. The State 1993 PCr.LJ 1677; Liaquat Ali v. The State 1986 PCr.LJ 2317; State v Sobharo 1993 SCMR 585; Mehmood Ahmed and others v. The State 1995 SCMR 127; Riaz v. The State 1998 PCr.LJ 1613; Nabi Bux Alias Naboo v. The State 1989 PCr.LJ 1123 and Muhammad Akram v. The State 1998 PCr.LJ 1693 ref.

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

----Art. 22---High Court (Lahore) Rules and Orders. Vol. III, Chap. 11-C---Police Rules, 1934, 8.26.32---Identification parade--­Procedure and guidelines stated.

Under the law, the identification parade shall be conducted in presence of a 'First Class Magistrate and two more respectable witnesses having no interest in the case. Arrangements shall be made to ensure that the identifying witnesses be kept separate from each other at such a distance from the place of identification so that it shall render it impossible for them to see the suspects or any of the persons concerned m the proceedings until they are called up to make their identification. The identification shall be carried out as soon as possible/without any delay after the arrest of the suspect. The suspect shall be placed among other persons similarly dressed and of the same religion and social status. They should be of similar height, built, structure and colour. The proportion of dummies mixed with the under-trials shall be eight or nine to one. Each witness shall be brought up separately to attempt the identification. Care shall be taken so that the remaining witnesses are still kept out of sight and hearing and that no opportunity be permitted for communication to pass between witnesses who have been called up and those remain to be called or not been called. If it is desired, the fear of revenge or for other adequate reasons, that witness shall not have been seen by the suspect. The arrangement shall be made for the former when called up to stand trial behind a screen or be otherwise at a place so that they can see clearly without being seen. The result of the test shall be recorded by a First Class Magistrate present in Form 26.32(1)(e) as such the witness views the suspect. At the close of test, the Magistrate or other independent witness/witnesses shall be requested to sign the form and certify that the test has been carried out correctly and that no collusion between the police or witnesses or among the witnesses was possible. It is advisable, that whenever possible, an independent reliable person unconnected with the police should be present throughout the proceedings at the place where the witnesses are kept and should be required to devote his attention entirely to the prevention of collusion. It is important that once the arrangements for the proceedings have been undertaken. The Officer, investigating the case and any Police Officer assisting him in the investigation, should have no access whatsoever either to suspect or the witnesses. The identification proceedings should not be arranged without the orders of the First Class Magistrate and such Magistrate should always be present to arrange and conduct the proceedings himself. The value of test arranged by Judicial/First Class Magistrate is, inevitably liable to be called in question by the defence.

The proceedings of this nature, described above, are extra-­judicial. After the completion bf period, the Magistrate holding the test has to append his certificate at the foot of the identification memo. as contemplated in Chapter 11-C of the High Court Rules and Orders, Vol.III.

Haji Shahnawaz Chachar for Applicants.

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

2002 P Cr. L J 544

[Karachi]

Before Zahid Kurban Alvi, J

Syed MUHAMMAD HASHIM‑‑‑Applicant

versus

CIRCLE OFFICER, ANTI‑CORRUPTION ESTABLISHMENT, LARKANA and 2 others‑‑‑Respondents

Criminal Miscellaneous Application No. 132/S and Miscellaneous Application No.772 of 2001, decided on 9th October, 2001.

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

‑‑‑‑Ss. 497 & 561‑A‑‑‑Bail‑‑‑Quashing of proceedings‑‑‑Rule of consistency‑‑‑Where on identical facts and grounds one person has been allowed the concession of bail in a case another person should not be denied such concession‑‑‑Such rule of consistency should also be followed and adopted in respect of quashment proceedings.

Muhammad Afzal alias Bodi v. The State 1979 SCMR 9 and Aurangzeb alias Ranga v. The State 1991 PCr.LJ. 1299 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 409/471/477‑A/34‑‑‑Prevention of Corruption Act (Il of 1947), S.5(2)‑‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑‑Quashing of proceedings‑‑‑Main accused in the case had been absolved from the proceedings and allegations being proceeded against the present accused were of similar nature, rather his case was on better footings than that of the main accused‑‑‑No fruitful result would come out it' the accused was subjected two further litigation‑‑‑Reading of the charge‑sheet showed that no offence under Ss.409, 471 & 477‑A, P.P.C. was made out against the accused for misappropriation, falsification of accounts and using of forged documents Proceedings pending against the accused in the Special Court, Anti-­Corruption, were quashed in circumstances.

Muhammad Afzal alias Bodi v. The State 1979 SCMR 9 and Aurangzeb, alias Ranga v. The State 1991 PCr.LJ 1299 ref.

Muhammad Ayaz Soomro for Applicant.

Muhammad Bachal Tunio, Addl A.‑G. for the State:

Date of hearing: 9th October, 2001.

2002 P Cr. L J 564

[Karachi]

Before Zahid Kurban Alvi, J

GHULAM HYDER GADEHI‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑581 of 2001, decided on 24th October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑­Two prosecution witnesses filed their affidavits wherein they had stated that they had not, seen anybody committing murder of the deceased‑‑‑Said witnesses had stated that they had come running to the scene after the incident‑‑‑One of the prosecution witnesses had further stated that the police had obtained their signatures on some white papers at the police station‑‑‑Other prosecution witness had also given same version‑‑‑Another person who was supposed to be the Mashir, had insisted in his affidavit that the police had called him at the police station and obtained his signatures on some white papers and denied that he had visited the place of Wardat, examined the dead body of the deceased or that the accused was arrested in his presence‑‑‑With said three affidavits, whether rightly or .wrongly sworn, the fact of the F.I.R. and the version of the complainant would be diminished‑‑­Occurrence was a night time incident‑‑‑In absence of said two eye­witnesses the only person left was the complainant and if his version as mentioned in the F.I.R. was to be read with the version of said witnesses who had sworn affidavits which were in direct contradiction to the version of the complainant, it would be a case worth considering:, for the grant of bail as it would be difficult to ascertain who fired the fatal shot in the darkness of the night when the only thing available for the purpose of identification was a torch light‑‑‑Bail was granted to the accused in circumstances.

Muhammad Nawaz alias Najja v. The State 1991 SCMR 111; Muhammad Hayat v. The State 1988 SCMR 474; Muhammad Javed v. The State 1999 SCMR 328; Shahbaz Gut v. The State 1984 SCMR 2495 and Anwar v. The State 1991 PCr.LJ 732 and Sanaullah and 3 others v. The State 1983 SCMR 15 ref.

Muhammad Ayaz Soomro for Applicant.

Abdul Razak Soomro for the Complainant.

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

Date of hearing: 15th October, 2001.

2002 P Cr. L J 568

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

MUMTAZ ‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.467 and Criminal Miscellaneous Application No.93 of 2001, decided on 20th August, 2001.

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

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860); Ss.302/324/147/148/149/427/ 120‑B‑‑‑Pre‑arrest bail‑‑‑Incident had taken place in broad daylight‑‑­Lodging of F.I.R. was not delayed‑‑‑Fatal injury of deceased was attributed to accused‑‑‑Accused was absconding for the last seven months and had been declared a proclaimed offender by the Trial Court‑‑­Prosecution had no mala fides for false involvement of the accused in the case‑‑‑Pre‑arrest bail was refused to the accused in circumstances.

1989 PCr.LJ 1910; 1991 SCMR 322; 1985 SCMR 1949; PLD 1983 SC 82; PLD 1982 SC 192 and Nasir Muhammad Wasan and others v. The State 1992 SCMR 501 ref.

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

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.302/324/147/148/149/427/ 120‑B‑‑‑Cancellation of bail‑‑‑Accused were nominated in the promptly lodged F.I.R. with overt acts attributed to them therein‑‑‑Occurrence had taken place in broad daytime‑‑‑Enmity mentioned in the F.I.R. was a motive for the commission of the offence which could only be resolved after recording of evidence‑‑‑Sufficient reasonable evidence was available on record regarding participation of accused in the occurrence-‑­Reasonable grounds existed to believe that the accused had committed the offence punishable with death, imprisonment for life or imprisonment for ten years‑‑‑Bail granted to accused by , Trial Court was recalled in circumstances.

PLD 1967 SC 340; PLD 1968 SC 349; 1978 SCMR 236; 1979 SCMR 109; 1980 SCMR 1681; 1999 PCr.LJ 890; 1990 SCMR 1360; Nasir Muhammad Wasan and others v. The State 1992 SCMR 501; Iqbal Hussain v. Abdul Sattar and another PLD 1990 SC 758; Mst. Bashiran Bibi v. Nisar Ali Khan and others PLD 1990 SC 83; Hafiz Khuda Bux v. The State PLD 1988 SC 413; Arbab Ali v. Khamosi and others 1985 SCMR 195 and Shaukat Ali v. Mubarak Shah and another PLD 1986 SC 347 ref.

Liaquat Ali Shar for Applicant (in Criminal. Bail Application No.467 of 2001).

S. Mushtaque Hussain Shah for the Complainant (in Criminal Bail Application No.467 of 2001):

S. Mushtaqtie Hussain Shah for Applicant (in Criminal Miscellaneous No.93 of 2001).

Sajjad Hussain Kolachi for Respondents Nos. l to 3 (in Criminal Miscellaneous No.93 of 2001).

Mumtaz Ali Siddiqui for Addl. A.‑G. for the State.

Date of hearing: 13th August, 2001.

2002 P Cr. L J 578

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

NABI BUX‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 103 of 2000, heard on 31st August, 2001.

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

‑‑‑‑S. 302‑‑‑Non‑mention of the relevant clause of S.302, P.P.C. in the judgment convicting the accused‑‑‑Effect‑‑‑Trial Court had convicted the accused under S.302, P.P.C. and sentenced him to imprisonment for life, but it had failed to mention the clause of S.302, P.P.C. under which he was so convicted and sentenced‑‑‑Court was bound under the law to have specified the relevant clause of S.302, P.P.C. under which it had convicted and sentenced the accused and its failure to do so had resulted in miscarriage of justice‑‑‑Impugned judgment being illegal was set aside and the case was remanded to Trial Court for re‑writing the judgment in accordance with law after affording proper opportunity to the parties.

Mudassir alias Jimi v, The State 1996 SCMR 3; Yakoob and others v. The State Criminal Appeals Nos. 126 and 135 of 1995; Criminal Jail Appeals Nos.26 and 69 of 1995 and Nisar Ahmed and another v. The State Criminal Appeal No.D‑25 of 1997 ref.

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

‑‑‑‑S. 302‑‑‑Clause of S.3~2 P.P.C. under which the accused is convicted and sentenced must be mentioned in the judgment‑‑‑Incumbent upon the Trial Court to mention in the judgment the relevant clause of S.302, P.P.C. under which the accused is convicted and sentenced after promulgation of Islamic system of administration of criminal justice and. announce the judgment in accordance with law as provided under S.302, P.P.C.

Mudassir alias Jimi v, The State 1996 SCMR 3; Yakoob and others v. The State Criminal Appeals Nos. 126 and 135 of 1995; Criminal Jail Appeals Nos.26 and 69 of 1995 and Nisar Ahmed and another v. The State Criminal Appeal No.D‑25 of 1997 ref.

Habibullah for Appellant.

Ghulam Sarwar Korai on behalf of Addl. A.‑G. for the State.

Date of hearing: 31st August, 2001.

2002 P Cr. L J 591

[Karachi]

Before Muhammad Ashraf Leghari, J

MUHAMMAD JAVED‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail No. 1139 of 2001, decided on 28th September, 2001.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.420, 467, 468 & 471‑‑‑Bail, grant of‑‑‑Parties were closely related to each other‑‑‑Complainant party had not denied their signatures on the disputed agreement, but they had alleged that their signatures were obtained by fraud by the accused‑‑‑Plea of the accused was that disputed agreement was got attested by the complainant party‑‑Said fact was yet to be established at the time of trial by the complainant party‑‑‑Police papers had revealed that the ingredients of S.467, P.P.C. had not been attracted in the case and charges under Ss.420, 468 & 471, P.P.C. did not fall within the prohibitory clause of S.497, Cr.P.C.‑‑‑Accused was in police custody since his arrest‑‑­Possession of the disputed property was already with the complainant party and civil suit filed by the accused was pending decision in the Court‑‑‑No reasonable grounds existed to believe that the accused had committed an offence falling under the prohibitory clause of . S.497, Cr.P.C.‑‑‑Case against the accused requiring further inquiry, bail was granted to him.

Tabbasam Ahmed Qureshi v. The State 2000 P Cr. L J 105 and Sher Dil Khoso v. The State 2000 PCr.LJ 1748 ref.

Shahadat Awan for Applicant.

Muhammad Nawaz Khan Abbasi for the Complainant.

Jawed Akhtar for the State.

Date of hearing: 28th September, 2001.

2002 P Cr. L J 594

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

SOOMAR and 3 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.69 and Criminal Jail Appeal No.66 of 1999, heard on 23rd August, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Non‑mentioning of clauses of S.302, P.P.C. while convicting the accused‑‑‑Effect‑‑‑Trial Court had convicted and sentenced the accused under S.302, P.P.C., but in its judgment had not mentioned as to under which of the clauses of S.302, P.P.C., the accused had been convicted‑‑‑Trial Court was bound to proceed with the case and announce the judgment in accordance with law as provided under S.302, P.P.C.‑‑‑Section 302, P.P.C. had been divided in three parts or clauses with three different kinds of punishment, viz. punishment with death as Qisas; death or imprisonment for life as Ta'zir and sentence of imprisonment up to 25 years‑‑‑Trial Court was to keep in mind the provisions of S.302, P.P.C. to determine the clause of S.302 under which the accused would be dealt with‑‑‑Trial Court by not doing so had frustrated the very purpose of the provision of law‑‑‑Conviction and sentence recorded by the Trial Court had resulted in miscarriage of justice and its judgment was illegal‑‑‑Judgment of the Trial Court was set aside and case was remanded for re‑writing the judgment in accordance with law.

Mudassir alias Jimi v. The State 1996 SCMR 3; Yakoob and others v. The State Criminal Appeals Nos. 126 and 135 of 1995; Criminal Jail Appeals Nos. 26 and 69 of 1995 and Nisar Ahmed and another v. The State Criminal Appeal No. D‑25 of 1997 ref.

A.R. Farooq Pirzada for Appellants.

Mumtaz Ali Siddiqui for Addl. A.‑G. for the State.

Habibullah Shaikh for the Complainant.

Date of hearing: 23rd August, 2001.

2002 P Cr. L J 602

[Karachi]

Before Muhammad Ashraf Leghari, J

MUHAMMAD KHOKHAN alias RAFIQ alias KHOKHA

and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Applications Nos. 1055 and 1056 of 2001, decided on 10th September, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), 5.302/34‑‑‑Bail, grant of‑‑­Incident was unwitnessed and the names of the accused did ‑not figure in the F. I. R. ‑‑‑No ocular evidence was available against the accused except the extra‑judicial confession said to have been made before a private person and a police official‑‑‑No other piece of evidence was on record against the accused connecting them with the commission of the offence ‑‑‑F.I.R. was delayed and nothing incriminating had been recovered from the possession of the accused‑‑‑Remand order produced on record had shown that one accused was in jail in another case two months prior to the commission of the offence‑‑‑State Counsel had also conceded to the bail plea of the accused‑‑‑No reasonable ground appeared to believe that the accused were guilty of the offence falling under prohibitory clause of S.497, Cr.P.C.‑‑‑Case against the accused requiring further inquiry, they were granted bail.

Al‑Haj Fareed Gul Khan for Applicant (in Criminal Bail Application No. 1055 of 2001).

Syed Saeed Hassan Zaidi for Applicant (in Criminal Bail Application No. 1056 of 2001).

Imdad Hussain Qazi for the State.

Date of hearing: 10th September, 2001.

2002 P Cr. L J 621

[Karachi]

Before Faiz Muhammad Qureshi, J

MUHAMMAD AFZAL‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No. 126 of 2000, decided on 23rd April, 2001.

Customs Act (IV of 1969)‑‑‑‑

‑‑‑‑Ss. 156(1), (14), (77), (81), (82) & 32‑‑‑Criminal Procedure Code (V of 1898), Ss.561‑A & 265‑K‑‑‑Quashing of proceedings ‑‑‑Scope‑‑­Inherent jurisdiction under S.561‑A, Cr.P.C. could not be exercised by High Court as an alternative or additional jurisdiction‑‑‑Accused had got an alternate remedy available to him under S.265‑K, Cr.P.C. before the Trial Court‑‑‑Accused, according to F.I.R., with the connivance of the Custom's Staff of Collectorate of Customs (Export) had succeeded in obtaining issuance of cheques amounting to Rs.36,54,731‑‑‑Serious allegations had been made not only against the accused but also against` the Customs Officials and the prosecution version at such stage could not be stifled when evidence was yet to be adduced by the prosecution before the Trial Court‑‑‑Both sides had levelled allegations against each other which could be thrashed out at the time of trial‑‑‑Petition for quashing of proceedings was dismissed in circumstances.

Messrs Zahra Industries Ltd. through Managing Director v. Government of Pakistan, Central Board of Revenue through Additional Secretary 1993 CLC 1659; Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353; 1985 SCMR 257; 1993 SCMR 187; 1998 SCMR 873; 1997 SCMR 1503; Miaraj Khan v. Gul Ahmed and others 2000 SCMR 122; Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317; C.P. No.1627 of 1999; PLD 1980 Kar. 49; PLD 1999 Kar. 121; PLD 1997 Lah. 633; 1999 SCMR 654; Soofi Muhammad Anwar v. Mst. Badshah Begum and 6 others 1999 SCMR 1475; Mohsin Ali and another v. The State 1972 SCMR 229; Marghoob Allah and. another v. Shams Din and another 1986 SCMR 303; Sheikh Mahmood Saeed and others v. Amir Nawaz Khan and another 1996 SCMR 839; Muhammad Shafiq and 2 others v. Merajuddin and another 1987 MLD 1518 and Khawaja Faisal Karim v. State and another PLD 1996 SC 461 ref.

Khawaja Shamsul Islam for Applicant.

M. Shaiq Usmani for Respondent.

Syed Ziauddin Nasir, Standing Counsel for the State.

Date of hearing: 19th April, 2001.

2002 P Cr. L J 649

[Karachi]

Before Sabihuddin Ahmed and S. Ali Aslam Jafri, JJ

BADAR ALAM BACHANI‑‑‑Petitioner

Versus

NATIONAL ACCOUNTABILITY BUREAU and another‑‑‑Respondents

Constitutional Petition No. 1696 of 2001, decided on 28th August, 2001.

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

‑‑‑‑S. 497 ‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), S.9‑‑‑Bail, grant of‑‑‑Accused who being a public servant was drawing a salary of Rs.8,755 p.m., could not explain accumulation of enormous wealth worth about two and half billion rupees during a short period of six years of his service‑‑‑Deeper appreciation of the evidence at bail stage was not permissible under the law lest it should adversely affect the mind of the Trial Court particularly when the case was at the stage of conclusion‑‑‑Nature of allegations against the accused and a tentative assessment of the evidence on record did not justify release of the accused on bail.

Khan Asfandyar Wali's case PLD 2001 SC 607 and. Ch. Zahur Ilahi v. The State PLD 1977 SC 273 ref.

Muhammad Ashraf Kazi for Petitioner.

Muhammad Anwar Tariq, Deputy Prosecutor‑General, Accountability alongwith Abdul Ghafoor, Special Prosecutor N.A.B.

Dates of hearing: 15th and 21st August, 2001.

2002 P Cr. L J 655

[Karachi]

Before Ghulam Rabbani and Muhammad Ashraf Leghari, JJ

Inspector Syed MAIRAJ ALI SHAH‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Special Ant‑Terrorism Appeal No.84 of 2001, decided on 3rd November, 2001.

Anti‑Terrorism Act (XXVII of 1997)‑‑‑

‑‑‑‑S. 27‑‑‑Defective investigation‑‑‑Allegation against the accused who happened to be a Police Inspector was that he was guilty of conducting defective investigation against a person who was involved in criminal case and that due to said defective inquiries the accused had been acquitted by the Trial Court‑‑‑Accused had stated that he had only prepared a memo. of inspection of scene of occurrence and had submitted only charge‑sheet in the case against said person and rest of the investigation had been conducted by some other Investigating Officer anti if any defect had been found in investigation that could not be attributed to him‑‑‑Validity‑‑‑Judgment against the accused was not passed by a speaking order‑‑‑Assistant Advocate‑General who did not dispute the factual aspect of the matter, had stated that judgment passed against the accused be set aside and case be remanded to the Trial Court to pass a speaking judgment in accordance with law‑‑‑Judgment passed against the accused was set aside and case was remanded for fresh decision after providing him a proper opportunity of hearing.

Ch. A. Rasheed for Appellant.

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

Date of hearing: 30th October, 2001.

2002 P Cr. L J 657

[Karachi]

Before Wahid Bux Brohi, J

MANSOOR AHMED and others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No. 132 of 2001, decided on 24th September, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.377/34‑‑‑Juvenile Justice Ordinance (XXII of 2000), Ss.2(b) & 10‑‑‑Bail, grant of‑‑‑Documentary evidence brought on record had indicated that the age of the accused was not above 17 years at the time of commission of offence and he being minor had remained in custody for a period of more than nine months‑‑­Under S.10(7)(b) of Juvenile Justice System Ordinance, 2000, a child in case of offence punishable with imprisonment for life was entitled to bail if his continuous detention exceeded period of six months‑‑‑Two persons who were sleeping in the room wherein the offence was allegedly committed, had sworn affidavits to the effect that they had not been commission of the alleged offence‑‑‑Accused were granted bail in circumstances.

Manzoor A. Bhutto for Applicants.

Sharafat Ali Khan, State Counsel.

Date of hearing: 24th September, 2001.

2002 P Cr. L J 659

[Karachi]

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

ZIA AHMED AWAN‑‑‑Petitioner

Versus

GOVERNMENT OF SINDH and others‑‑‑Respondents

Constitutional Petition No.D‑743 of 1993, decided on 27th September, 2001.

Sindh Children Act (XII of 1955)‑‑‑-

‑‑‑‑S. 10‑‑‑Constitution of Pakistan (1973), Art.199 ‑‑‑ Constitutional petition‑‑‑Public interest litigation‑‑‑Juvenile offender‑‑‑Trial of Juvenile offender to be conducted according to law‑‑‑Petitioner being a human right activist filed the Constitutional petition in public interest wherein he pointed out that the juvenile offenders were not being tried in accordance with law‑‑‑Validity‑‑‑In addition to Juvenile Justice System Ordinance, 2000, there were Sindh Children Act, 1955, Sindh Borstal Schools Act, 1955. and Reformatory Schools Act, 1897, in force in. the Province of Sindh‑‑‑High Court advised the Government of Sindh to promulgate a consolidated law on the subject, incorporating substantial provisions of the Federal Juvenile Justice System Ordinance, 2000‑‑‑Responsibility lay with the Provincial Government to ensure that the provisions of the law t were complied with by the agencies and concerned officials‑‑‑Subject involved in the petition was not only legal but also had social and moral concern‑‑‑High Court directed the Provincial Government to get the matter examined by a Committee comprising experts on the subject and officers of the concerned Departments, for the purpose of consolidation of the law on the subject as well as to ascertain the areas in the system where compliance with the law was not being made and to establish the institutions required under the law to provide facilities within a period of six months‑‑‑Constitutional petition was allowed accordingly.

M. Ilyas Khan for Petitioner.

Nemo for Respondents.

Date of hearing: 19th September, 2001.

2002 P Cr. L J 662

[Karachi]

Before Muhammad Ashraf Leghari, J

NAZAR MASIH‑‑‑Applicant

Versus

YAQOOB MASIH and others‑‑‑Respondents

Criminal Miscellaneous Application No.294 of 2001, decided on 22nd October, 2001.

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

‑‑‑‑S. 497(5)‑‑‑Cancellation of bail‑‑‑Principle‑‑‑Grant of bail in non­ bailable offences is a concession which implies the condition that after release on bail the accused will not misuse the concession so extended ­Accused so released, if found violent to take, revenge from the complainant, the prosecution witnesses or the police, his bail is liable to be cancelled.

Tanveer Ahmed v. Muhammad Saqib and 2 others PLD 1994 SC 88 rel.

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

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.302/148/149‑‑­Cancellation of ‑bail‑‑‑Parties were close neighbours‑‑‑Accused after release on bail in collaboration with absconding accused had started causing terror to the complainant party and the situation had become very tense which could invite some other misfortune‑‑‑Sufficient material had been produced to indicate that situation at the site had deteriorated after the release of accused on bail‑‑‑Bail allowed to accused was cancelled in circumstances.

Tanveer Ahmed v. Muhammad Saqib and 2 others PLD 1994 SC 88; Shahzaman and 2 others v. The State and another PLD 1994 SC 65; Khalid Mahmood v. Abdul Qadir Shah and another 1994 PCr.LJ 1784 and Malik Anjum Farooq Piracha v. Waqar Zafar Chauhan alias Wikki and 2 others 1994 SCMR 1230 ref.

I.A. Hashmi for Applicant.

Ghulam Mustafa Memon for Respondents Nos. 1 to 4.

Habib‑ur‑Rashid for the State.

2002 P Cr. L J 690

[Karachi]

Before Zahid Kurban Alvi, J

DHOLU and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.S‑41 of 2001, decided on 14th November, 2001.

Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Deceased was the nephew of the complainant and if the complainant and the prosecution witnesses were with the deceased at the time of occurrence, they all should have resisted the killing of a young relative at the hands of the accused and the complainant and the prosecution witnesses must have ‑been fired at by the accused, but nothing was done to that effect‑‑‑Complainant had not stated in F.I.R. as to which of the accused fired at which part of the body of the deceased‑‑‑Prosecution witnesses were also silent in their evidence in that regard which fact had created doubt about their presence at the scene of offence‑‑‑Not believable that by killing a person in presence of his close relatives, accused would not attempt to cause any injury to tile prosecution witnesses‑‑‑Contradictory statements of the complainant and the prosecution witnesses had shown that they had not witnessed the incident, but they had rushed to the place of incident after the deceased was shot dead and due to their enmity with the accused had nominated them in order to settle the scores of enmity‑‑‑Very factum of company of complainant and the alleged eye‑witnesses with the deceased towards the scene of occurrence was doubtful particularly from the post‑mortem report‑‑‑Statement of other prosecution witness made under 5.164, Cr.P.C. was contradictory to his own evidence in Court‑‑‑Visit of place of incident by the police on the same day was also doubtful‑‑‑All the witnesses who were closely related to each other, had not been able to support the case of prosecution due to their contradictory statements‑‑­Case against the accused being not beyond shadow of doubt, the accused were acquitted of the charge giving them benefit of doubt.

Muhammad Ilyas v. The State 1997 SCMR 25 ref.

Muhammad Ayaz Soomro for Appellants.

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

Date of hearing: 10th October, 2001.

2002 P Cr. L J 707

[Karachi]

Before Syed Zawwar Hussain Jaffery, J

ALI SHAH‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application, No.461 of 2001, decided on 7th September, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/148/149/504/34‑‑‑Bail‑‑­Enmity between the parties was admitted in the F. I. R. ‑‑‑Accused had allegedly caught hold of deceased by the arms at the time of occurrence alongwith other co‑accused when the principal accused had given a dagger blow on the chest of the deceased ‑‑‑Presence of accused at the spot and his participation in the commission of offence were matters of further inquiry‑‑‑Accused was admitted to bail accordingly.

Mehmood Akhtar and 5 others v. Haji Nazir Ahmed and 4 others 1995 SCMR 310; Shahid v. The State 1994 SCMR 393; Muhammad Aslam alias Photo v. State 2001 PCr.LJ 1349; Suhrab and 3 others v. State 2001 PCr.LJ 60; Zahid Shah v. State 2001 PCr.LJ 134; Aijaz Masih v. State 1999 PCr.LJ 343; Basharat Hussain v. Ghulam Hussain and others 1978 SCMR 357 and Muhammad Hussain v. The State 1994 SCMR 261 ref.

Amanullah G. Malik for Applicant.

Ubedullah Malano for, the Complainant.

Mumtaz Ali Siddiqui for the State.

2002 P Cr. L J 723

[Karachi]

Before Muhammad Afzal Soomro, J

ABID IQBAL ANSARI‑‑‑Petitioner

Versus

DIRECTOR‑GENERAL, FEDERAL INVESTIGATING AGENCY

and others‑‑‑Respondents

Constitutional Petition No.S‑357 of 2000 and Civil Miscellaneous Applications Nos.612 and 791 of 2001, decided on 27th November, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 409/468/471‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑­Federal Investigation Agency Act; 1974 (VIII of 1975), S.5(1), ‑­Constitution of ‑ Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑­Registration of F.I.R.‑‑‑Holding of preliminary inquiry, no doubt was borne out by the Federal Investigation Agency Act, 1975, but the Agency was not duty bound to register the case unless the preliminary inquiry had prima facie disclosed the commission of a cognizable offence‑‑­Respondents, after having received the complaint of the petitioner, had accorded permission to hold the ‑preliminary open inquiry which showed that no fundamental right of the petitioner had been denied by the Government Functionary i.e., the Federal Investigation Agency‑‑­Constitutional jurisdiction of High Court, therefore, could not be invoked for carrying on. a futile exercise simply because the petitioner considered some persons to be guilty‑‑‑Petitioner had an alternative remedy of filing a direct complaint in the competent Court if ‑ he, was not satisfied with the progress being made by the respondents‑‑‑Constitutional petition was not maintainable and was dismissed accordingly‑‑­Respondents, however, were directed to register the F.I.R. if in the open enquiry any cognizable offence was found to have been committed by the accused.

Constitutional Petitions Nos.300, 345 and 358 of 2001; Mst. Zar Bano v. The State 1989 SCMR 202 and Adamjee Insurance Company Limited and others v: Assistant Director, Economic Enquiry Wing, Federal Investigation Agency 1989 PCr.LJ 1921 ref.

Muhammad Ashraf Kazi for Petitioner.

Ziauddin Nasir, Standing Counsel.

2002 P Cr. L J 783

[Karachi]

Before Muhammad Ashraf Leghari, J

MALIK DINO and others‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1181 of 2001, decided on 28th September, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑­Incident was unwitnessed‑‑‑Dead body of the deceased was recovered after three days when it was in decomposed condition and F.I.R. was recorded after the dead body was found‑‑‑Nothing incriminating had been recovered from the possession of the accused‑‑‑Alleged extra judicial confession was said to have been made before two unknown persons whose names were yet known to prosecution‑‑‑Accused had remained in jail for more than two years since their arrest‑‑‑No reasonable ground appeared to believe that the accused had committed an offence falling under the prohibitory clause of S.497, Cr.P.C.‑‑‑Case of the accused requiring further inquiry, they were granted bail.

Abdul Shakoor A. Abbasi for Applicants.

Fazlur Rehman Awan for the State.

2002 P Cr. L J 791

[Karachi]

Before Zahid Kurban Alvi and Sarmad Jalal Osmany, JJ

ZULFIQAR‑‑‑Applicant

THE STATE‑‑‑Respondent

Criminal Bail Application No.491 of 2001, decided on 18th October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑-S. 497‑‑‑Penal Code (XLV of 1860), Ss.302, 148 & 149‑‑‑Bail, grant of‑‑‑Medical report of the doctor was in conflict with the ocular version‑‑‑As per version of the complainant the deceased had received fire‑arm injuries at his chest, abdomen and back, while the medical version was that the deceased had received injuries on the left side of neck, left forearm and left shoulder‑‑‑Injuries stated by the complainant did not find place in the post‑mortem report‑‑‑Due to said inconsistency between the ocular and medical evidence for the purpose of bail, the case of the accused fell within purview of cl.(2) of S.497, . Cr.P.C.‑‑‑Case against the accused calling for further inquiry, bail was granted to him.

Mohsin v. The State .1977 PCr.LJ 159 and Ghulam Rasool and another v. The State 1986 PCr.LJ 120 ref.

Muhammad Ayaz Soomro for Applicant.

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

Date of hearing: 18th October, 2001.

2002 P Cr. L J 798

[Karachi]

Before Ata‑ur‑Rehman, J

QUTUB‑UD‑DIN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.85 of 2001, decided on 25th September, 2001.

Surrender of Illicit Arms Act (XXI of 1991)‑‑‑

‑‑‑‑Ss. 4 & 7(c)‑‑‑Appreciation of evidence‑‑‑Registration of case without notification‑‑‑Effect‑‑‑Accused was convicted and sentenced under S.7(c), Surrender of Illicit Arms Act, 1991‑‑‑Case against the accused having been registered in absence of any notification under S.4 of the said Act, Appellate Court allowing appeal set aside judgment of the Trial Court and the accused was set free.

Imdad Hussain Abbasi for Appellant.

2002 P Cr. L J 806

[Karachi]

Before Ata‑ur‑Rehman, J

ILLAHI BUX‑‑‑Appellant

Versus

WAZIR and 3 others ‑‑‑ Respondents

Criminal Acquittal Appeal No.16.of 2001, decided on 25th September, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 417‑‑‑Penal Code (XLV of 1860); S.337‑A(3)/34‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Appeal against acquittal‑‑‑Limitation‑‑‑Appeal was barred by time to the extent of about one year‑‑‑Appeal filed mistakenly before the Court of Session was withdrawn after about nine months of its filing and was filed in the High Court after about one month from its withdrawal‑‑‑Application for certified copy of withdrawal order was filed by the appellant after 23 days from passing of withdrawal order and not on the same , day or on the next day and no explanation was given by the appellant as to why he delayed in obtaining certified copy‑‑‑Application filed by the appellant under S.5, Limitation Act, 1908 for of delay was dismissed being not maintainable and appeal against acquittal was dismissed being barred by time.

Haji Muhammad Ashraf v. The State 1999 MLD 330 ref.

Khalid Iqbal Memon for Appellant.

Muhammad Ismail Bhutto for the State.

2002 P Cr. L J 814

[Karachi]

Before Muhammad Ashraf Leghari, J

STATE BANK OF PAKISTAN‑‑‑Appellant

Versus

ZARDAD H. KHAN and others‑‑‑Respondents

Criminal Appeals Nos.83, 158,188, 189 of 1987, 49, 75, 168 of 1989, 7, 144 and 145 of 1.990, decided on 3rd September, 2001.

(a) Foreign Exchange Regulation Act (VII of 1947)‑‑‑

‑‑‑‑Ss. 20 (3), 12 & 23‑B‑‑‑Jurisdiction of Trial Court‑‑‑After the insertion of S.23‑B in the Foreign Exchange Regulation Act, 1947, on 1‑7‑1987 the cases were exclusively triable by the Tribunal i.e. the Adjudication Officer and not by the Sessions Court‑‑‑Procedural law had always retrospective effect in absence of any express provision to the contrary‑‑‑Matters, no doubt, were very old but since the interests and the rights of the parties had been allegedly prejudiced and a new forum had been created for trial of the cases, the parties had to be provided a fair and reasonable opportunity in the interest of justice, despite the fact that such plea was not specifically taken in the Trial Court‑‑‑Trial of the cases by the Sessions Court, therefore, was coram non judice‑‑‑Impugned convictions and sentences of accused were consequently set aside and the matters were remanded to the Adjudicating Officer with the direction to proceed further from the stage of recording statements of accused in accordance with law as evidence had already been recorded in the cases.

Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187 and Bashaarat A. Shaikh and 2 others v. The State 1992 MLD 607 ref.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Procedural law‑‑‑Procedural law has always a retrospective effect in absence of any express provision to the contrary.

Bashaarat A. Shaikh and 2 others v. The State 1992 MLD 607 ref.

Muhammad Iqbal holding brief for Obed‑ur‑Rehman for Appellants (in Criminal Appeals Nos. 158 and 83 of 1987).

I.A. Hashmi for Appellant (in Criminal Appeals Nos. 188, 189 of 1987, 7 of 1990, 75 of 1989, 145 of 1990, 168 of 1989, 144 of 1990, 49 of 1989 and for Respondents in Criminal Appeals Nos. 158 and 83 of 1987).

H.A. Rehmani for Respondents (in Criminal Appeals Nos. 188, 189 of 1987, 7 of 1990, 75 of 1989, 145 of 1990, 168 of 1989, 144 of 1990 and 49 of 1989).

Date of hearing: 3rd September, 2001.

2002 P Cr. L J 915

[Karachi]

Before Muhammad Aslam Arain and Syed Deedar Hussain Shah, JJ

NAWAB and 4 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.258 and Confirmation Case No.20 of 1992, decided on 6th October, 1994.

(a) Criminal trial‑‑‑

‑‑‑‑Motive‑‑‑Crimes can be committed without any motive, but once the prosecution alleges a particular motive it is obliged to prove the same through independent evidence.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/149, 148 & 109‑‑‑Appreciation of evidence‑‑‑Presence of eye­witnesses at the scene of occurrence was highly doubtful ‑‑Recoveries were joint and had not been effected from exclusive possession of accused‑‑‑No crime‑empties had been recovered from the spot‑‑‑Weapons of offence recovered from the accused were not sent to the Ballistic Expert for examination‑‑‑Statements of prosecution witnesses under S.161, Cr.P.C. had been recorded by the police after inordinate delay and the explanation furnished for such delay was not plausible‑‑­Enmity between the parties was admitted‑‑‑Incident did not seem to have occurred in the manner as suggested by the prosecution‑‑­Evidence of interested, partisan and related witnesses was not corroborated by either the medical evidence or by circumstantial evidence‑‑‑Motive suggested by the prosecution was not only weak but also did not inspire confidence‑‑‑Impugned judgment was based on incorrect appreciation of evidence, which was full of improbabilities and incoherances‑‑‑Accused were acquitted in circumstances.

Janib and 2 others v. The State 1986 PCr.LJ 583; Abdul Ghani and others v. The State 1976 PCr.LJ 1462; Bagh Ali v. Muhammad Anwar and others 1983 SCMR 1292; Yousuf v. The State PLD 1988 Kar. 521; Ismail and 3 others v. The State 1983 PCr. LJ 823; Saifullah v. The State 1985 SCMR 410; Abdul Ghafoor v. The State 1982 SCMR 1.62; Dosa v. The State 1988 SCMR 1532; Din Muhammad v. The Crown 1969 SCMR 777; Gahno and others v. The State PLD 1964 (W.P.) Kar. 437; Ghazi and others v. The State 1982 SCMR 49; Shah Muhammad and others v. Muhammad Bux PLD 1972 SC 321; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; Muhammad Achar v. The State PLD 1990 Kar. 314; Amir khan v. Ahmad Nisar 1977 SCMR 175; Abdul Majeed v. The State 1969 PCr.LJ 1168; Muhammad Ashraf v. The State 1989 PCr.LJ 2211; Roshan v. The State PLD 1977 SC 557; Yaqoob Shah v. The State PLD 1976 SC 53; Hamid Javed v. The State 1988 SCMR 39 and Pervaz Akhtar v. The State 1987 PCr.LJ 2367 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑A'Eppreciation of evidence‑‑‑Charge of murder ‑‑‑Proof‑‑­Where accused is tried on a capital charge, that has to be evidence of unimpeachable character, which must lead to the only inference that accused is found guilty beyond all reasonable doubt.

A.Q. Halepota for Appellants.

Muhammad Sarwar Khan, A.A.‑G. for the State.

I.A. Hashmi for the Complainant.

Date of hearing: 6th October, 1994.

2002 P Cr. L J 937

[Karachi]

Before Sarmad Jalal Osmany, J

MUMTAZ ALI---Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.511 of 2001, heard on 29th November. 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail, grant of‑‑­Matrimonial enmity existed between the parties and it appeared that deceased had lost his mental balance and from time to time he was in the habit of leaving the house of his father/complainant for long periods as a result of which complainant had got published a public notice about four months prior to the occurrence‑‑‑Evidence available against the accused was merely a hearsay and totally uncorroborated from any independent evidence‑‑‑Dead body of the deceased was never recovered‑‑‑Case against the accused, therefore, was one of further inquiry‑‑‑Accused was enlarged on bail in circumstances.

Khurshid Ahmed v. Kabool Ahmed PLD 1964 (W.P.) Kar. 356 and Abdul Saleem v. The State 1998 SCMR 1578 ref.

Azizullah M. Buriro for Applicant.

Mukhtiar Ahmad Khanzada for the State.

Dates of hearing: 22nd and 29th November, 2001.

2002 P Cr. L J 939

[Karachi]

Before Ghulam Nabi Soomro, J

GHULAM ABBAS and 2 others‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1717 of 2001, decided on 2nd January, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.16‑‑‑Bail, grant of‑‑‑Illegal custody‑‑‑Accused could be kept in custody either under a judicial remand or under a challan, but in the present case there was neither any remand order nor a challan, custody of accused as such was illegal‑‑‑Accused were directed to be released on bail.

Mst. Asma Khatoon v. Syed Shabbir Hussain Shah and 2 others PLD 1996 Kar. 517 ref.

Rashid Yousuf Zai for Applicants.

Fazlur Rahman Awan for the State.

2002 P Cr. L.J 943

[Karachi]

Before Muhammad Roshan Essani, J

ALLAHYAR‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.578 .and Miscellaneous Application No. 1135 of 2001, decided on 11th January, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302, 324, 504, 147, 148 & 149‑‑‑Bail, grant of‑‑‑Enmity existed between the parties‑‑ ‑Allegation against the accused was that he was present at the spot empty‑handed and no ‑overt act whatsoever had been ascribed to him ‑‑‑Co‑accused on identical evidence had already been granted bail‑‑‑No objection having been raised on behalf of the prosecution side, bail was granted to the accused in view of the peculiar facts and circumstances of the case.

Abdul Rasool Abbasi for Applicant.

Masood A. Noorani, Addl. A.‑G.

2002 P Cr. L J 945

[Karachi]

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

Haji MATEENUDDIN‑‑‑ Applicant

versus

THE STATE‑‑‑Respondent'

Criminal Bail Application No. 1492 of 2001, decided on 27th November, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.409/109‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Bail, grant of‑‑‑Only the Chief Cashier of the Bank was challaned as an accused in the case while applicant was shown as one of the prosecution witnesses in list of such witnesses‑‑‑Final challan was submitted after 15 months wherein for the first time applicant was shown as such in the challan‑‑‑Nothing was produced or relied upon for transposing the applicant from prosecution witness to the list of accused‑‑‑Case of applicant was identical, if not on better footing to the case of co‑accused who was granted bail‑‑‑No evidence had been collected during period between submission of interim challan and final challan‑‑‑Applicant, on departmental enquiry was fully exonerated‑‑‑Loss of prize bonds having been immediately circulated to all Banks no loss had been caused to the Bank‑‑‑Case of applicant calling for further inquiry, he was admitted to bail.

M. Ilyas Khan for Applicant.

Khursheed A. Hashmi, Dy.A.‑G.

Date of hearing: 27th November, 2001.

2002 P Cr. L J 949

[Karachi]

Before Muhammad Afzal Soomro, J

AKHTAR HUSSAIN ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision Application No.48 of 2001, decided on 21st September, 2001.

(a) Criminal trial‑‑‑

‑‑‑‑Burden of proof‑‑‑Principles‑‑‑Burden of proving case would rest on prosecution which was duty bound to prove its case against accused beyond all reasonable doubts‑‑‑Said duty would not be changed or varied even in a case in which no defence plea was taken by the accused‑‑­Defence plea was always to be considered in juxtaposition with prosecution case and in final analysis if defence plea was proved or accepted then prosecution case would stand discredited and shattered‑‑‑If defence plea was substantiated to the extent of creating doubt in credibility of prosecution case, then in that eventuality it would be enough‑‑‑In case it was not established at all, no benefit would accrue to the prosecution on that account‑‑‑Duty of prosecution to prove its case beyond doubt could not be diminished if defence plea was not proved or was found to be palpably false.

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

‑‑‑‑Arts. 3/4‑‑‑Criminal Procedure Code (V of 1898), S.103‑‑‑Appreciation of evidence‑‑‑Alleged liquor was recovered from accused from a place which was a thickly populated area‑‑‑Investigating Officer was duty bound to have made efforts for securing independent persons from vicinity of crime to act as Mashir, but he had not done so‑‑‑In case Investigating Officer was unable to call some independent persons to act as Mashirs he could have mentioned such fact in the police diaries, which he failed to do‑‑‑Investigating Officer, in circumstances, had not made honest efforts to procure attendance of independent Mashirs as contemplated under S.103, Cr.P.C.‑‑‑Three bottles of liquor were recovered from the possession of accused, but out of which only half bottle was sent to Chemical Examiner for analysis‑‑‑Prosecution had not alleged that recovered bottles were manufactured by some manufacturing company or that same had seals‑‑‑Raiding party was obliged to have obtained samples from each bottle to prove that all those bottles contained liquor‑‑‑No evidence was on record that liquor was being taken by the accused for sale to anyone and no evidence was brought to substantiate that accused was present at the spot for purpose of selling the liquor‑‑‑Alleged liquor was sent to Chemical Examiner for examination after the delay of 16 days and no explanation was given for such delay‑‑‑One member of complainant party who was prosecution witness was proved to have tribal dispute with the accused‑‑‑False implication of accused in `the case could not be ignored in circumstances‑‑‑Judgments of two Courts below were set aside and accused was set at liberty.

Naseer v. The State PLD 1981 Kar. 41; Muhammad Arshad and another v. The State 1986 PCr.LJ 1506; Ishtiaq Ahmed v. The State 1996 PCr.LJ 1811; Javed Akhtar v. The State PLJ 1997 Cr.C. Lah. 1310; Ashiq Hussain v. State 1993 SCMR 417; Hakim Ali and others v. The State 1971 SCMR 432 and Munawar Hussain alias Asghar Ali v. The State 1991 SCMR 1601 ref.

Imdad Ali Awan for Applicant.

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

Date of hearing: 3rd November, 2001.

2002 P Cr. L J 957

[Karachi]

Before Muhammad Ashraf Leghari, J

SHOAIB ALI KHAN‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.1325 of 2001, heard on 16th October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860). 5.365‑A‑‑‑Bail, grant of‑‑­Initially report about missing of abductee was recorded and after three days F.I.R. was registered‑‑‑All prosecution witnesses in their statements under S.161, Cr.P.C. before police had alleged that brother of accused demanded ransom money for releasing abductee and that he also asked for withdrawal of case lodged against accused‑‑‑Car of abductee was traced out on basis of automatic C. Track System installed in car‑‑­Expert who examined the car had stated that the car had passed through house of accused before t was parked at the Airport parking ground‑‑­Motive for commission of offence was that parties were on inimical terms with each other since long‑‑‑Ground of ailment taken by accused had no force as alleged ailment mentioned in medical report was not so serious which could be detrimental to life of the accused‑‑‑Offend against accused under S.365‑A, P.P.C was punishable with death‑‑‑No reasonable grounds existed to hold that accused was not guilty of offence with which he was charged‑‑‑Accused did not deserve bail in circumstances.

Muhammad Dildar Malik v. Tahir Mahmood and another 1998 SCMR 652; Al‑Jehad Trust v. Federation of Pakistan PLD 1996 SC 534; Ghafoor and others v. The State 1986 PCr.LJ 369; Mst. Hurmat v. The State 1986 PCr.LJ 1017; Abdullah Khan and another v. The State 2001 PCr.LJ 1679; Nuzhat Fatima v. The State PLD 1996 Kar. 559; Muhammad Arshad v. The State and another 1997 SCMR 1275; Mian Manzoor Ahmed Wattoo v The State 2000 PCr.LJ 20 and Zarin Khan v. The State 1980 SCMR 305 ref.

Khawaja Naveed Ahmed for Applicant.

Shahadat Awan for the Complainant.

Jawed Akhtar for the State.

2002 P Cr. L J 960

[Karachi]

Before Muhammad Afzal Soomro, J

AFTAB and 5 others‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑63 of 2002, decided on 15th February, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.13‑‑‑Bail‑‑‑First Information Report stated that complainant party had found three males and three females sitting in the house at the time of raid‑‑‑No offence under S.13 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was prima facie made out against the accused on ‑the basis of said allegations, called for further inquiry as contemplated under S.497(2), Cr.P.C‑‑‑‑Accused were admitted to bail in circumstances.

Muhammad Rafiq v. The State 1994 PCr.LJ 138; Mst. Razia v. The State 1998 PCr.LJ 929 and Muhammad Nadeem v. The State 1999 PCr.LJ 463 ref.

Khalid Iqbal Memon and Muhammad Ayaz Soomro for Applicant.

Muhammad Ismail Bhutto for the State.

2002 P Cr. L J 965

[Karachi]

Before Ghulam Rabbani, J

AYAZ AHMED ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Applications No.414 to 417 of 2001, decided on 28th September, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.380 & 457‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14‑‑‑Bail, grant of‑‑‑Accused, who was involved in four cases, had confessed commission of offence and recovery of some of stolen articles from the accused was made in each crime which had sufficiently established tendency of mind of accused and his attitude to repeat commission of like offences‑‑‑Bail applications by accused were dismissed in circumstances.

Ghulam Habib v. The State PLD 1994 Pesh. 84; Tariq Bashir v. The State PLD 1995 SC 34; Muhammad Waseem and 7 others v. The State 1998 PCr.LJ 435 and Sarwar v. The State 2000 PCr.LJ 82 ref.

Muharram G. Baloch for Applicants.

Riazuddin Siddiqui and Anwar Ansari, State Counsel for the State.

2002 P Cr. L J 969

[Karachi]

Before Muhammad Afzal Soomro, J

GHULAM FAREED‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑125 of 2002, decided on 1st March, 2002.

Criminal Procedure Code (V of 1898)‑‑­

‑‑‑‑S. 497‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.9‑‑‑Bail‑‑‑Enmity between the parties was disclosed in the F.I.R.‑‑No satisfactory explanation had been furnished by the complainant for reporting the matter to police after one year of the occurrence‑‑‑Accused‑was in jail for the last one year and five months and his trial had not yet started‑‑‑Nothing incriminating was recovered from the possession of accused‑‑‑Bail was allowed to accused in circumstances.

Muhammad Ayaz Soomro for Applicant.

Azizul Haq Solangi for the State.

2002 P Cr. L J 974

[Karachi]

Before Muhammad Afzal Soomro, J

Mst., WAZIRAN KHATOON and 2 others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1499 of 2001, decided on 22nd November, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(1)‑‑‑Penal Code (XLV of 1860), Ss.302/109/34 ‑‑‑ Bail ‑‑‑ F. I. R. was registered after an inordinate delay of one month and 18 days‑‑­Accused being women, their case was covered by first proviso to S.497(1), Cr.P.C.‑‑‑ One accused had recently given birth to a suckling child‑‑‑No specific role had been assigned to the other lady accused in the F.I.R.‑‑‑Accused were admitted to bail in circumstances.

Shahadat Awan for Applicants.

Habibur Rashid for the State.

2002 P Cr. L J 984

[Karachi]

Before Muhammad Afzal Soomro, J

IRSHAD AHMED ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.492 of 2001, decided on 20th August, 2001.

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S. 497‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑­Surrender of Illicit Arms Act (XXI of 1991), Ss.7(c) & 2(1)(a)(v)‑‑‑Bail, grant of‑‑‑Only such weapons were covered by subsection (1) (a)(v) of S.2 of the Surrender of Illicit Arms Act, 1991, the object of which was the silencing of fire‑arms‑‑‑Gun recovered from the accused had no relevancy of silencing approach‑‑‑Surrender of Illicit Arms Act, 1991, therefore, had no applicability to the facts and circumstances of the case‑‑‑Accused was released on bail in circumstances.

Ahmed Ali Memon for Applicant.

Abdus Sattar Soomor for the State.

2002 P Cr. L J 1040

[Karachi]

Before Ghulam Rabbani and S.A. Rabbani, JJ

ABADAN FARIDOON ABADAN ---Applicant

Versus

THE STATE and 2 others---Respondents

Criminal Bail Application No. 1367 of 2001, decided on 17th October, 2001.

Criminal Procedure Code (V of 1898)---

----S. 498-National Accountability Bureau Ordinance (XVIII of 1999), Ss.10 & 3-A---Pre-arrest bail---Accused admittedly was the Director of the Company at the relevant time and had also acquired its controlling shares, it therefore, could not be said at such stage that he did not benefit from the embezzled amount of money of which the Government had been deprived of on account of the wrongful acts alleged in the Reference--­Accused did not approach the Trial Court on account of non-bailable warrants having been issued against him---Avoiding service of any process issued by the Court was itself an offence under S.31-A of the National Accountability Bureau Ordinance, 1999, punishable with imprisonment' extending to three years---Accused, therefore, ought to have surrendered himself before the Trial Court which had failed to do... Accused, in circumstances, was not entitled to pre-arrest bail---Bail application was dismissed accordingly.

1988 SCMR 1223; 1995 SCMR 1249; PLD 1995 SC 34; 2000 SCMR 122; Criminal Bail Applications Nos.1228, 1363 and 1386 of 2001 ref.

Kamal Azfar and Saalim S. Ansari for Applicant

Amir Raza Naqvi, Addl. Dy. Prosecutor-General, N.A.B. for the State.

2002 P Cr. L J 1045

[Karachi]

Before Muhammad Afzal Soomro, J

JABAR SHAH and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑481 of 2001, decided, on 20th August, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.497(1)‑‑‑Penal Code (XLV of 1860), Ss.457/458/380/382 & 511‑‑­Bail‑‑‑Case was pending in the Court of Magistrate who was not competent to award the sentence of more than three years‑‑‑Major penalty of 14 years' R.I. under Ss. 457, 458, 380, 382 & 511, P.P.C. could not be awarded to accused in view of the offence having not been completed and only attempt thereof being punishable with half of the sentence‑‑‑On both these counts the offence did not fall within the ambit of prohibition contained in S.497(1), Cr.P.C. and the bail had to be granted as a rule‑‑­Bail was granted to accused accordingly.

Sadderuddin v. The State 1994 PCr.LJ 1215, Arshad Ali v. The State 2000 MLD 1088 and Manzoor Ali alias Mumtaz v. The State 2001 PCr.LJ 344 ref.

Tariq Bashir v. The State PLD 1995 SC 34 rel.

Manzoor Ahmed Junejo for Applicants.

Abdul Sattar Soomro for the State.

2002 P Cr. L J 1051

[Karachi]

Before Zahid Kurban Alvi and Muhammad Moosa K. Leghari, JJ

MUHAMMAD MURAD‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.D‑748 of 2001, decided on 24th November, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/148 & 149‑‑‑Bail‑‑­Cross‑cases were pending between both the parties and from each side one person had lost his life‑‑‑Accused side had also sustained injuries in the incident‑‑‑Two versions of the prosecution case had created doubt and made the case against the accused to be one of further inquiry‑‑‑It was yet to be determined as to who was the aggressor and who had first caused injuries to the other side‑‑‑Accused was admitted to bail in circumstances.

Muhammad Ayaz Soomro for Applicant.

Abdul Rahman Bhutto for the Complainant.

Gul Hassan Solangi for the State

2002 P Cr. L J 1058

[Karachi]

Before Zahid Kurban Ali, J

Moulvi NOOR MUHAMMAD ‑‑‑Appellant

Versus

ZAWAR GAHNO and 5 others‑‑‑Respondents

Criminal Revision No.26 of 2001, decided on 21st December, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/148/149‑‑‑Criminal Procedure Code (V of 1898), Ss.173, 190(b) & 439‑‑‑Return of supplementary challan by Court‑‑‑Validity‑‑­Police was not debarred under the law from conducting further investigation in the case after submission of challan in the Court‑‑‑Fact having come to light after submission of the initial challan regarding implication of certain accused in the offence had justified the submission of the supplementary challan‑‑‑Said accused could not be considered as guilty of the offence at such stage‑‑­Impugned order whereby the supplementary challan was returned was set aside with the direction to Trial Court to accept the same and proceed with the case accordingly‑‑‑Revision petition was accepted in circumstances.

Sukleman v. Fateh Naseeb and others 1995 PCr.LJ 1543; Hasil Baluch v. Deputy Inspector‑General of Police Crimes, Karachi 1983 PCr.LJ 2357; Muhammad Akbar v. The State 1972 SCMR 335 and Mrs. Ghanwa Bhutto v. Government of Sindh PLD 1997 Kar. 119 ref.

Muhammad Ayaz Soomro for Petitioner.

Abdul Haq Solangi for Respondents Nos. 1 and 2.

Muhammad Bachal Tunio, Astt. A.‑G. for the State.

Ali Nawaz Ghangro as Amicus Curiae.

Date of hearing: 6th November, 2001.

2002 P Cr. L J 1065

[Karachi]

Before Zahid Kurban Alvi, J

NAUKHAF and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.S‑37 of 2000, decided on 21st December, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/34 & 452/34‑‑‑Appreciation of evidence ‑‑‑Eye‑witness had made contradictory statements‑‑‑No specific role had been attributed to accused in the commission of the offence except that they were present at the time of incident‑‑‑No recovery had been effected from the accused‑‑‑Prosecution had failed to prove the case against the accused beyond any reasonable doubt‑‑‑Accused were given benefit of doubt and acquitted in circumstances.

Zaab Din and another v. The State PLD 1981 Lah. 13; Abdul Khaliq v. The State 1996 SCMR 1553; Mehmood Ahmed and 3 others v. The State and another 1995 SCMR 127; Javaid Shah v. The State 1992 Cr.LJ 455; Zahid Iqbal v. The State 2001 PCr.LJ 773; Habib‑ur‑Rehman and another v. The State PLD 1994 Pesh, 126; Misri Khan v. The State 1975 PCr.LJ 116 and Safeer Hussain v. Muhammad Jahangir and 3 others 1996 SCMR 951 ref.

Muhammad Ayaz Soomro for Appellants.

Mushtak Ahmed Korejo, A.‑G. for the State.

Date of hearing: 6th November, 2001.

2002 P Cr. L J 1086

[Karachi]

Before Zahid Kurban Alvi and Muhammad Moosa K. Leghari, JJ

IMDAD ALI JUNEJO---Applicant

Versus

THE STATE---Respondent

Criminal Miscellaneous Applications Nos.D-149 and 150 of 2001, decided on 6th December, 2001.

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

----Ss. 9 & 21---Criminal Procedure Code (V of 1898), S.561-A--­Quashing of proceedings---Section 21 of the Control of Narcotic Substances Act, 1997, had riot been strictly followed by the police in searching and arresting the accused and the same had been violated--­Where the police party under a routine patrolling came across a suspect whom they wanted to check and if in strict adherence to the said S.21 the person of the required rank was not available, then the suspect perhaps might be able to run away or escape---Where, however, in the F.I.R. it is stated clearly .hat spy information was received and police was ware in advance as to the exact location of the accused, then the visions of S.21 of the aforesaid Act should have been followed---Spy information was available in advance to the police in the case but they did not follow the provisions of S.21 of the Control of Narcotic Substances Act, 1997---Proceedings pending against the accused in the Trial Court were quashed in circumstances.

Muhammad Aslam v. The State PLD 2001 Quetta 20; Mst. Azeema v. The State PLD 2001 Quetta 1; Khalid Nawaz v. The State 1999 PCr.LJ 391 and Sardar Alam v. The State PLD 1975 Lah. 589 ref.

Muhammad Ayaz Soomro for Applicants.

Gul Hassan Solangi for the State.

2002 P Cr. L J 1098

[Karachi]

Before Wahid Bux Brohi, J

WASIM alias WIZI---Applicant

Versus

THE STATE---Respondent

Criminal Bail No. 1088 of 2001, decided on 9th October, 2001.

Criminal Procedure Code (V of 1898)---

----S.497, third proviso---Penal Code (XLV of 1860), Ss.302/324/34--­Bail---Accused, who had completed two years of his continuous detention, had sought bail on ground of statutory delay in conclusion of the trial---Trial Court had rejected bail application on the ground that the accused had contributed to delay in conclusion of the trial---On two dates of hearing the prosecution witnesses alongwith counsel far the prosecution were present and the accused were also produced from the custody, but the counsel for the accused remained absent on both the dates of hearing---Counsel for the accused neither had filed application for adjournment nor he had sent any intimation to justify his absence--­Accused could not be allowed to claim deduction of period of two adjournments from the period of his total detention and then ask for grant of bail on the ground that he had remained in jail for an aggregate period of more than two years---Accused was not entitled to " bail on the ground of statutory delay---Accused, however, could not be detained in custody for an indefinite period and the right of the trial of the accused was to be protected---Trial Court, in circumstances, was directed to proceed with the trial expeditiously.

Muhammad Sadiq v. State 1996 PCr.LJ 1440; Muhammad Ishaq v. State 1996 PCr.LJ 1269; Amir v. State 1991 PCr.LJ 534; Muhammad Younas v. State 1995 SCMR 1087; Shouki v. State 1984 SCMR 613 and Abdur Rashid v. State 1998 SCMR 897 ref.

M.A. Kazi for Applicant.

Javed Akhtar for the State.

Date of hearing: 21st September, 2001.

2002 P Cr. L J 1159

[Karachi]

Before Wahid Bux Brohi, J

MUHAMMAD AKRAM‑‑‑Applicant

Versus

GOVERNMENT OF SINDH and 3 others‑‑‑Respondents

Criminal Miscellaneous Application No.85 of 2001, decided on 16th January, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 145, 435, 439‑A & 561‑A‑‑‑Quashing of proceedings‑‑‑Exercise of powers under S.561‑A, Cr.P.C. was not barred because of provisions of Ss.435 & 439‑A, Cr.P.C.‑‑‑Application under S.561‑A, Cr.P.C. could be entertained by High Court in very exceptional cases‑‑‑Petitioner had suppressed the important facts and had come to the Court with unclean hands by making a misguiding, unscrupulous and false statement‑‑‑No extraordinary circumstance was available to the petitioner to justify and provide a ground for skipping over the provisions of Ss.435 & 439‑A, Cr.P.C. and coming up direct to High Court invoking its inherent powers‑‑‑Conduct of the petitioner in laying down misguiding version had plainly disentitled him to equitable relief or concession under the law‑‑‑Petition for quashing of proceedings was dismissed in circumstances.

Muhammad Sarwar v. State PLD 1985 SC 240 ref.

S. Mahmood Alam Rizvi and Muhammad Irfan for Applicant.

Khalid Shah, .State Counsel arid M. Umer Qureshi for Respondents.

Date of hearings 24th August, 2001.

2002 P Cr. L J 1163

[Karachi]

Before Syed Zawwar Hussain Jaffri, J

MUHAMMAD AMEEN‑‑‑Applicant

Versus

THE STATE‑ ‑Respondent

Criminal Bail Application No.737 and Miscellaneous Application No. 73 of 2001, decided on 27th November, 2001.

(a) Medical jurisprudence‑‑‑

---Duration of retaining of semen in the vagina can be found over 100 hours after coitus and non‑motile spermatozoa as long as for 17 days after coitus and in the dead female they may even survive longer.

Rawato and others v. State 2000 PCr.LJ 333 ref.

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

‑‑‑‑S. 497(2)‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10, 11 & 16‑‑‑Penal Code (XLV of 1860), S.363/34‑‑‑Bail, grant of‑‑‑Further inquiry‑‑Delay of 24 days in lodging of F.I.R.‑‑­Statements of prosecution witnesses recorded more than 3 months after registration of F. I. R. ‑‑‑Chemical Examiner's Report was in negative‑‑Co‑accused had been granted bail‑‑‑No marks of violence were found on the body of the prosecutrix‑‑‑Medical report had falsified the version of the prosecutrix and the husband of the victim had enmity over agricultural land with the accused persons‑‑‑Alone word of the abductee/victim that the accused had committed Zina with her and such statement was in conflict with the medical evidence and Chemical Analyzer Report‑‑‑Case of the accused was one of the further inquiry as envisaged under S.497(2), Cr.P.C.‑‑‑Bail was allowed in circumstances.

Ali Dino v. State 1988 PCr.LJ 53; Muhammad Siddique v. State 1985 PCr.LJ 658; Shabir alias Babu v. The State 1994 PCr.LJ 914 and Khalid v. State 1995 PCr.LJ 968 ref.

Habibullah Shaikh for Applicant.

Ghulam Sarwar Korai for the State.

2002 P Cr. L J 1177

[Karachi]

Before Syed Zawwar Hussain Jafri, J

DUR MUHAMMAD ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Jail Appeal No.3 of 2000, heard on 2nd October 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 342‑‑‑preciation of evidence‑‑‑No direct evidence of incident was available and the entire case was based upon circumstantial evidence‑‑‑Accused was only seen standing in front of the "Otak" where the dead body of the deceased child was found, but it was not clear from the circumstantial evidence as to why the accused was standing there after commission of the offence‑‑‑No previous enmity existed between the parties‑‑‑Prosecution witness had improved his earlier statement at the trial‑‑‑Medical evidence did not support the prosecution version‑‑‑Opinion of the Medical Officer alone could not prevail upon circumstantial evidence‑‑‑Prosecution witnesses could not be presumed to be truthful witnesses and no implicit reliance could be placed upon their testimony‑‑‑Accused was acquitted in circumstances.

Mumtaz Ali Siddiqui for Appellant.

Ghulam Sarwar Korai for the State.

2002 P Cr. L J 1259

[Karachi]

Before Muhammad Afzal Soomro, J

TAJ MUHAMMAD ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.440 of 2001, decided on 31st October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302‑‑‑Bail‑‑‑Judicial confession made by accused was corroborated by medical evidence, his apprehension on the spot alongwith the pistol and acceptable pieces of evidence‑‑‑Accused had not retracted his confession at the earliest opportunity which had been made by him voluntarily and appeared to be true‑‑‑Bail was refused to accused in circumstances.

Ilamdin Khattak for Applicant.

Abbas Ali, A.A.‑G. for the State.

2002 P Cr. L J 1268

[Karachi]

Before Ghulam Nabi Soomro and Sarmad Jalal Osmani, JJ

HAKIM ALI ZARDARI‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Criminal Revision Application No.192 and Miscellaneous Application No.2729 of 2001, decided on 14th February, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 540‑A, 342 & 439‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), S.10‑‑‑Revision‑‑‑Dispensation of attendance of accused‑‑‑Accused having been exempted from appearing before the Accountability Court during the trial was directed to be produced before the Court for the purpose of recording his statement under S.342, Cr.P.C. by means of the impugned order‑‑‑Latest report of the Medical Board showed that the left hip joint of the accused was extremely painful and his left hip X‑Ray and bone scanning showed loosening which needed surgery in order to mobilize him and relieve his pain‑‑‑Counsel of the accused, in circumstances, was directed to make a statement of undertaking of his representation before the Trial Court for the purpose of recording his statement under S.342, Cr.P.C.‑‑‑Trial Court, however, was at liberty to summon the accused, if considered necessary, at any stage of the case according to law‑‑‑Revision petition was allowed accordingly.

Dr. Ali Yahyah v. The State 1989 PCr.LJ 1652; Nasir Ahmad v. Dil Muhammad and 2 others 1982 SCMR 1006 and State Bank of Pakistan v. Syed Nasir Hussain Zaidi and 5 others PLD 1988 Kar. 379 ref.

Muhammad Yousuf Leghari for Applicant.

M. Anwar Tariq. Deputy Prosecutor‑General, N.A.B. for the State.

2002 P Cr. L J 1277

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

GUL BAHAR and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.33 of 2002, decided on 6th February, 2002.

(a) Interpretation of statutes‑‑‑

‑‑‑‑ One provision of the section is not to be considered ignoring its other provisions‑‑‑Every section of a law is to be considered in the totality of the scheme and not in isolation keeping in view all other relevant provisions of the statutes.

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

‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Duty of Court‑‑‑Court before releasing the accused on bail is required to apply its mind keeping in view the provisions contained in subsections (1) and (2) of 5.497, Cr.P.C. in their totality and the sine qua non for releasing the accused on bail is that the Court should come to the conclusion that there are no reasonable grounds to believe that he has committed a non‑bailable offence.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, refusal of‑‑­Accused according to the F.I.R. by holding the deceased by their arms had played an active role in the occurrence making him helpless and facilitated the third accused to kill the deceased just with one dagger blow on his heart which was sufficient to cause his death‑‑‑Had the accused not made the deceased helpless, he could have resisted, struggled to save his life, pushed the assailant, snatched the dagger or run away from the place of incident‑‑‑All this could not be done because the accused had caught hold of the deceased making him a total prey to the design of the third accused‑‑‑Accused, thus, had acted in furtherance of the common intention of all‑‑‑Bail was declined to accused in circumstances.

2000 PLJ 578; 2000 MLD 1193; 2001 PCr.LJ 1707; 2002 MLD 9 and 1999 PCr.LJ 343 ref.

Ali Muhammad Dahri for Applicants.

Muhammad Azeem Panhwar, Asstt. A.‑G. for the State.

Date of hearing: 6th February, 2002.

2002 P Cr. L J 1289

[Karachi]

Before S. Zawwar Hussain Jafari and S. Ahmed Sarwana, JJ

SHAHOO alias SHAH NAWAZ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. D‑117 of 2000, Miscellaneous Application Nos. 1872 and 1610 of 2001 decided on 12th December, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/309/310/338‑E‑‑‑Criminal Procedure Code (V of 1898), S.345‑‑‑Appreciation of evidence‑‑‑Compromise was arrived at between legal heirs of deceased and accused‑‑‑Legal representatives of deceased entered into compromise with accused during pendency of trial, but Trial Court, instead of passing any order thereon, convicted and sentenced accused‑‑‑Legal heirs of deceased filed application for compounding of offence under S.345, Cr.P.C. and Ss.309/310/338‑E, P.P.C. during pendency a of appeal against judgment of Trial Court‑‑‑On enquiry conducted on direction of High Court, it was affirmed that legal heirs had entered into compromise with accused to the effect that they would not claim any Diyat amount and that they had no objection if accused was acquitted from the charge against him‑‑‑Legal heirs of deceased appeared before Court to testify action of pardon granted by them to accused‑‑­Conviction and sentence recorded against accused by Trial Court were set aside and he was acquitted of charge as envisaged by provisions of S.345, Cr.P.C: and was released.

Safdar Ali and others v. The State and others PLD 1991 SC 202; Muhammad Mazhar v. The State 1992 PCr.LJ 443; Ghulam Rasool and others v. The State 1995 PCr.LJ 1327 and Abdul Hussain alias Noor Hassan alias Nanan v. The State 1‑999 PCr.LJ 1936 ref.

Ghulam Mustafa Sahto for Appellant.

Ghulam Sarwar Korai for the State.

2002 P Cr. L J 1317

[Karachi]

Before Muhammad Mujibullah Siddiqui and Muhammad Roshan Essani, JJ

Shaikh MUHAMMAD AMJAD‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Special Anti‑Terrorism Jail Appeal No. 83 and Confirmation Case No. 11 of 2001; decided on 16th April, 2002.

(a) Jurisdiction‑‑‑

‑‑‑‑ Objection to jurisdiction can be raised at any stage‑‑‑Question of jurisdiction being a question of law could always be raised by any party at any stage including the appeal‑‑‑If, however, such objection is taken at appellate stage it should not involve recording of further evidence and should be based on the material already available on record‑‑‑Court itself is required before proceeding with the case to examine whether it has jurisdiction in law to proceed or not‑‑‑Merely because a party to the proceedings has not taken any objection to the jurisdiction out of ignorance or for want of proper advice, shall neither debar a party from taking such objection at the appellate stage nor the silence of a party or even waiver shall confer jurisdiction on a Court not vested in it in law‑‑­Question of jurisdiction goes to the very root of the case and renders the entire proceedings coram non judice thereby vitiating the entire proceedings and making the judgment illegal and void‑‑‑Objection to the jurisdiction of a Court is in the nature of "objection to the proceedings" and not an "objection in the proceedings" and, thus, primarily it is an issue between a party on whom the jurisdiction is exercised and the Court.

Akhtar Ali Parvez v. Altafur Rehman PLED 1963 Lah. 390; Messrs Sutlej Cotton Mills Ltd. v. The Commissioner of Income‑tax North Zone (W.P.), Lahore PLD 1965 SC 443; Rashid Ahmad v. The State PLD 1972 SC 271 and Chief Kwame Asante Tredahone v. Chief Kwame 9 DLR 686 (PC) ref.

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

‑‑‑‑Ss. 6, 7 & 8‑‑‑Jurisdiction of Anti‑Terrorism Court‑‑‑Scope‑‑‑Anti­-Terrorism Court established under Anti/Terrorism Act, 1997, shall have the jurisdiction to try an offence if it is a scheduled offence and has nexus with Ss.6, 7 & 8 of the said Act.

Mehram Ali v. Federation of Pakistan 1998 SCMR 1156 rel.

(c) Interpretation of statutes‑‑‑

‑‑‑‑Meanings‑‑‑Determination‑‑‑Principle‑‑‑Courts while interpreting a provision of law are required to give plain meaning to the plain language of the statute and are neither supposed to add anything to the statute nor to substract anything out of it‑‑‑Omissions in very exceptional cases can, however, be provided by the Court, but where no such necessity arises Court should always adhere to the meaning conveyed by reading the plain language of law.

(d) Interpretation of statutes‑‑‑

‑‑‑‑ Definition clause‑‑‑Significance‑‑‑Wherever a "definition clause" is provided is the statute by the Legislature then the said definition is to be adhered to for the purpose of the said Act and no meaning is to be assigned to any term, expression or word other than provided by the Legislature itself, with the help of Dictionaries or in accordance with the common connotation.

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

‑‑‑‑S. 6‑‑‑"Terrorist act"‑‑‑Interpretation‑‑‑Court, under the established principles of the interpretation of statutes is not supposed to assign any meaning to the word "terrorism" or "act of terrorism" other than the one given in S.6 of the Anti‑Terrorism Act, 1997, itself.

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

‑‑‑‑S. 6‑‑‑Terrorist act‑‑‑Determining factors‑‑‑Whenever the public, a section of public, a community or society because aware of the commission of the offence either immediately op its commission or at any subsequent time on discovery of its commission is put to the mental, psychological and, physical condition envisaged in S.6(1)(b) of the Anti‑Terrorism Act, 1997, it should be deemed to be "an act of terrorism".

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

‑‑‑‑S. 6‑‑‑"Terrorism"‑‑‑Connotation‑‑‑Commission of every offence is irksome, painful, distressing and abhorrent and so long as it remains confined to the victim or victims or their near and dear ones it does not amount to terrorism as defined in S.6(1)(b) of the Anti‑Terrorism Act, 1997, but when any such offence is committed which by its very nature or because of the manner and method of commission evokes or excites painful emotion of danger, alarm or apprehension terrifying any section of public, public at large, community or a sect, it results in creation of sense of fear and insecurity in the society at large and thereby enters into the realm of terrorism.

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

‑‑‑‑S. 6‑‑‑Act of terrorism‑‑‑Criminal act of ordinary nature or a normal crime‑‑‑Distinction.

(i) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(a) & 365‑A‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7(e)‑‑­Appreciation of evidence‑‑‑Deceased had no enmity or dispute with the accused and no circumstances existed which might result in murder of the deceased and subsequent harassment of his family by attempting to knock out ransom money‑‑‑Discovery of all such acts was bound to send a waive of shock, apprehension, sense of extreme painful emotion and excitement of danger as well as alarm to the entire residents of the locality and was bound to evoke the sense of insecurity, shock and intimidation in the community of Advocates which was evident from the resolution passed by the Managing Committee of the High Court Bar Association‑‑‑Conditions‑ prescribed in law, thus, stood fully satisfied conferring jurisdiction on the Anti‑Terrorism Court to try the accused for the offences of abduction for ransom and murder‑‑‑Deceased was last seen in the company of accused and thereafter was not traceable several days‑‑‑Accused during this period had made several telephone calls to the father of the deceased and ultimately had been arrested from the Public Telephone Booth‑‑‑Accused had led to the recovery of the dead body of the deceased from the dicky of the car of the deceased parked inside the Bungalow which was in his possession‑‑‑Shoes, gloves and law books of the deceased were also recovered at the instance of accused alongwith other incriminating articles‑‑‑Accused had got recovered the juice bottle and the poison "Potassium Cyanide" which was mixed with the juice and which was found to be the cause of death of the deceased‑‑­Said circumstantial evidence had led to the presumption of involvement of accused in the abduction for ransom and murder of the deceased which was corroborated by the extra‑judicial confession of accused and his admission contained in his hand written statement proved on record‑‑­Evidence on record was sufficient to exclude all possibilities of the accused being innocent of the abduction and death of the deceased‑‑­Accused had committed a cold‑blooded murder and his entire conduct was highly callous‑‑‑Young blooming Barrister was done to death in a gruesome manner sending a waive of shock to the entire community of Advocates creating sense of fear and insecurity in the public‑‑‑No mitigating circumstance was available in favour of accused for awarding lesser punishment‑‑‑Convictions and sentences of accused were upheld in circumstances.

Ghulam Qasim v. The State 1997 PCr.L1 175; Mehram Ali v. Federation of Pakistan 1998 SCMR 1156; Muhammad Ashraf v. Ghulam Rabani 1998 PCr.LJ 773; Akhtar Ali Parvez v. Altafur Rehman PLD 1963 Lah. 390; Messrs Sutlej Cotton Mills Ltd. v. The Commissioner of Income‑tax, North Zone (W.P.), Lahore PLD 1965 SC 443; Rashid Ahmad v. The State PLD 1972 SC 271; Chief Kwame Asante Tredahone v. Chief Kwame 9 DLR 686 (PC); Syed Hussain Abbas v. The State and others Criminal Appeals Nos.75 of 2001, 257, 292 and 293 of 2000; Raqib Khan v. The State 2000 SCMR 163; Mst. Gallan v. The State 1999 PCr.LJ 674; Ketab Ali v. The State 1970 PCr.LJ 415; Farid Muhammad v. The State PLD 1959 Pesh. 12; Allah Ditta v. The State PLD 1958 SC 290; Billmoria v. The State PLD 1958 SC 313; Faiz Ahmed v. The State PLD 1960 SC 8; Abdus Samad v. The State PLD 1964 SC 167; Abdul Khaliq v. The State 1968 PCr.LJ 205 and Barkat Ali v. The State 1976 SCMR 368 ref.

Jahangir Akhtar Awan v. The State PLD 2000 Kar. 89 distinguished.

Shaikh Mir Muhammad for Appellant.

Raja Qureshi, A‑G., Sindh and Muhammad Ilyas Khan, Special Public Prosecutor for the State.

Dates of hearing: 20th, 21st, 26th, 27th and 28th March, 2002.

2002 P.Cr.L.J 1523

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Muhammad Roshan Essani, JJ .

HAQ NAWAZ AKHTAR‑‑‑Applicant

versus

THE STATE through National Accountability Bureau‑‑‑Respondent

Criminal Bail Application No.358 of 2002, decided on 18th April, 2002.

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

‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Principles‑‑-Case of accused was to be considered on its own merits and on basis of material available against him on record‑‑‑If bail application of one accused was rejected or granted, it could not be a precedent for another accused in a stereotyped and mechanical manner‑‑‑Any earlier order of Court in respect of any accused person, was to be followed when it was established that facts and circumstances in respect of both accused were similar and they could be placed in similar position‑‑‑Merely because bail application of one accused had been rejected or granted, it would not make it appropriate to give same treatment to other accused persons in pursuance of law of consistency until and unless it was shown that nature of allegations against both accused were similar and they could be placed in the same position.

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

‑‑‑‑S. 497(2)‑‑‑National Accountability Ordinance (XVIII of 1999), Ss.9 & 18(g)‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Prosecution was unable to place any material before Court to make out a prima facie case of indulgence in corruption or corrupt practice by accused‑‑‑Prosecution had simply submitted that accused being a retired Federal Secretary, became Director of Companies which were engaged in corruption, causing huge loss‑to the State revenue‑‑‑Prosecution version showed that accused was found lending his name to such companies‑‑‑Mere lending of name by a person having acquired a particular status in society, would not amount to a commission of offence per se, at the most it could be said that such person used his goodwill and mere utilization of goodwill was not an offence per se until and unless it could be shown that it had been used or exploited in a manner not warranted in law or in a way which was not only immoral, but illegal as well and that in doing so said person had caused some wrongful loss to the State or had acquired any wrongful gain for himself or any of his relatives or any other person connected to him‑‑­Merely in name of white collar crime liberties of citizens could not be curtailed and respectable persons could not be allowed to be humiliated without sanction of law‑‑‑Nobody's fundamental right of life, liberty, property, respect, honour and dignity, could be curtailed otherwise than in due course of law‑‑‑Nobody could be deprived of his honour, except when he was shown to have committed an offence punishable under law‑‑‑In absence of reasonable grounds to believe that accused had committed alleged offence , further inquiry could be held into his guilt at trial‑‑‑Accused was granted bail, in circumstances.

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

‑‑‑‑S. 497‑‑‑Constitution of Pakistan (1973),. Art.9‑‑‑Bail, grant of‑‑­Principles‑‑‑For purpose of bail distinction to be made between an offence which was committed against an individual like a theft and an offence which was directed against society as a whole‑‑‑Distinction was to be kept in mind between an offence committed by individual in his private capacity and an offence committed by a public functionary in respect of or in connection with his public office‑‑‑In case of the offence committed against an individual and committed by individual in his private capacity, practice to allow bail in cases not falling under prohibitory clause of 5.497, Cr.P.C.; in absence of exceptional circumstances, could be followed, but in case offence was committed against society and was committed by public functionary, Courts should be strict in exercise of discretion in matters of bail‑‑‑Strict rule should come into operation provided Court was satisfied that prima facie, material was Qn record to connect accused with commission of offence‑‑­Article 9 of Constitution of Pakistan (1973), which related to fundamental rights guaranteeing life and liberty of every person not to be overlooked‑­‑Life, inter alia, would include right to have access to a fair and independent judicial forum for redress‑Balance was to be struck between national and individual interest/right.

Imtiaz Ahmed v. State PLD 1997 SC 545 ref.

Abdul Ghafoor Mangi for Applicant.

Navid Rasul Mirza and Muhammad Ghani, Prosecutors for the State.

Date of hearing: 18th April, 2002.

2002 P Cr. L J 1532

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

GHAZI‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 10 of 2002, decided on 4th February, 2002.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/34/427/504‑‑‑Bail‑‑­Accused had come armed with gun and hatchets sharing the common intention "to 'teach a lesson" to the complainant party for driving away their buffaloes from the land‑‑‑No doubt everybody was deemed to be innocent till convicted by Court, but such liberty could not be extended for the purpose of bail, particularly in respect of the commission of heinous offences‑‑‑Innocent person in the case had been killed and other persons had been injured just because the undue pride and arrogance of the accused persons was injured‑‑‑Court must take cognizance of such desperate and unwarranted actions affecting the valuable right of life of the citizens‑‑‑Accused at the present stage could not possibly be said not to have been sharing the common intention with co‑accused who had allegedly committed the murder of the deceased‑‑‑Bail was refused to accused in circumstances.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/34‑‑‑Bail‑‑­Principle‑‑‑Everybody, no doubt, is deemed to be innocent till convicted 'by a Court of Law, but this liberty is not to be extended for the purpose of bail, particularly in respect of the commission of heinous offences.

Talib Hussain Arain for Applicant.

Abdul Hussain Motiwala for Asstt. A.‑G. for the State.

Date of hearing: 4th February, 2002.

2002 P Cr. L J 1611

[Karachi]

Before Ata‑ur‑Rehman, J

GHULAM MUHAMMAD and 2 others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.387 of 2001, decided on 29th April, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324‑‑‑Bail, grant of‑‑All­egation against accused was that he caused sharp side hatchet blow to prosecution witness, whereas co‑accused had fired at the complainant and prosecution witness‑‑‑Medical report showed that injured prosecution witness had received only one injury on his parital region which had been caused with hard and blunt substance‑‑‑No pellet injury was found on the body of prosecution witness and no injury was caused by sharp side of hatchet on prosecution witness as alleged‑‑‑Counter‑versions were found in the case and all accused in counter‑case had been allowed bail‑‑‑Two co‑accused in the case had been granted bail and medical report was not in consonance with version recorded in the F.I.R.‑‑‑Bail was granted to accused in circumstances.

Abdul Rasool Abbasi for Applicants.

Mukhtar Ahmed Khanzada for the State.

2002 P Cr. L J 1625

[Karachi]

Before Wahid Bux Brohi, J

KAMAL NASIR‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1446 of 2001, decided on 8th November, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(1) third proviso‑‑‑Bail, grant of‑‑‑Delay in trial‑‑‑Continuous detention of accused had exceeded one year‑‑‑Nobody from police who effected arrest of accused had received any injury during the incident‑‑­Material witnesses were to be examined within stipulated period, but even the charge had not been framed so far‑‑‑No doubt Court had made efforts, but compliance of directions of High Court to record evidence of material witnesses, within three months could not ultimately be made for which there was no default on part of the accused‑‑‑Bail, was granted to accused in circumstances'.

Gul Hassan Penhyar v. State 1997 SCMR 390; Muhammad Aslam v. State 1999 SCMR 2147 and Jadeed Gul v. State 1998 SCMR 1124 ref.

Agha Zafir Ali for Applicant.

Sharafat Ali Khan for the State.

Date of hearing: 8th November, 2001.

2002 P Cr. L J 1628

[Karachi]

Before Muhammad Afzal Soomro, J

MAHHAKUMUDDIN and others‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 904 of 2001, heard on 21st February, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.302/201/34‑‑‑Interim pre­-arrest bail, confirmation of‑‑‑F.I.R. was belated by 4/5 months and no satisfactory explanation for such delay was forthcoming‑‑‑No eye‑witness of occurrence was produced who could have actually seen the incident‑‑­Dead body of deceased had not been. recovered and in that eventuality offence against accused at the most would fall under S.201, P P.C. which was punishable up to seven years and same would go out of prohibition contained in S.497(1), Cr.P.C.‑‑‑Interim pre‑arrest bail granted earlier to accused, was confirmed in circumstances.

Rafique Ahmed and others v. The State 1984 MLD 1411 and Haji Taj Muhammad v. The State 1992 PCr.LJ 2125 ref.

Muhammad Ayaz Soomro for Applicants.

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

2002 P Cr. L J 1631

[Karachi]

Before Abdul Lateef Qureshi and Abdul Rahim Kazi, JJ

MUHAMMAD ALI and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.85, 91 and 104 of 1993, decided on 23rd November, 1995.

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

‑‑‑‑S. 365‑A/34‑‑‑Appreciation of evidence‑‑‑Evidence against accused on charge of kidnapping was ocular evidence of the complainant and one prosecution witness who was brother‑in‑law of complainant, but no eye­witness of incident of kidnapping of complainant was on record‑‑­Inordinate delay in lodging F.I.R. was not plausibly explained‑‑‑Relations between complainant and accused were strained as accused being driver of complainant was dismissed by complainant from service some days earlier and harsh words were exchanged between the parties‑‑‑Ocular evidence of complainant and prosecution witness by itself did not establish kidnapping of complainant and demand of ransom from him by accused which needed strong corroboration‑‑‑No evidence to the effect that at the appointed place, accused persons had distributed amount in presence of witnesses‑‑‑Judicial confession of accused was recorded after 14 days of their arrest and no explanation was furnished by prosecution for such delay which had cast doubt on voluntariness of confession‑‑­Confession had been retracted by accused in their statements made under S.342, Cr.P.C.‑‑‑Retracted confession was a very weak piece of evidence and needed strong corroboration before it could be believed ‑‑‑ Factum of kidnapping needed corroboration‑‑‑Arrest of accused persons with ransom amount had been found to be doubtful‑‑‑All pieces of evidence which were themselves pieces of tainted evidence, could not be used to corroborate retracted confession, especially when confession was not recorded in a proper way‑‑‑Confession of one of accused persons had been recorded on oath which was inadmissible and could not be considered‑‑‑Evidence collected by prosecution was tainted piece of evidence which did not corroborate each other‑‑‑Trial Court, in circumstances, was not justified in relying upon those pieces of tainted evidence for conviction of accused‑‑‑Prosecution having failed to prove guilt of accused beyond reasonable doubt, conviction and sentence recorded by Trial Court against accused were set aside and they were set at liberty.

State v. Mehboob‑ur‑Rehman 1995 PCr.LJ 600; Arif Nawaz Khan and 3 others v. The State PLD 1991 FSC 53 and Muhammad Riaz and 3 others v. The State PLD 1994 Pesh. 102 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 37 & 39‑‑‑Judicial confession‑‑‑Determination of voluntariness of confession‑‑‑In order to determine whether confession was voluntary or not, attending circumstances must be subjected to very close, minute and rigid scrutiny and then alone probative value of confession could be determined ‑‑‑Voluntariness and truthfulness of confession could be evaluated on the considerations viz. the character and duration of custody; as to whether confessor was placed in a position to seek advice of his relatives or his lawyers nature and quantum of proof which was available against confessor before he confessed and whether confessions were consistent with evidence which was available at the time when confession was made‑‑‑Retracted confession was a very weak piece of evidence and needed strong corroboration before it could be believed‑‑‑Corroboration should be from very strong independent source which by itself should be sufficient for conviction, because one piece of tainted evidence would not corroborate another piece of tainted evidence.

Wali Muhammad v. The State 1986 PCr.LJ 1153 and State v. Ahsan Shah and 4 others 1989 PCr. LJ 2234 ref.

A.Q. Halepota for Appellants.

Suleman Habibullah for the State.

Date of hearing: 23rd August, 1995.

2002 P Cr. L J 1640

[Karachi]

Before Musheer Alam, J

DILDAR alias DILOO LEGHARI‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.611 of 2001, decided on 18th February, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497-‑Penal Code (XLV of 1860), S.302‑‑‑Bail‑‑‑Contention of accused was that case was of two versions as earlier F.I.R. of the same incident was reported wherein allegations against accused were made ran the same date, but subsequently second F.I.R. was registered after over two months and in second F.I.R. allegations against accused were again the same‑‑‑Accused had stated that case against him was that of ineffective firing‑‑‑Prosecution version was that accused party deceitfully got registered earlier F.I.R. in order .to implicate complainant party which on further investigation was found to be false‑‑‑Delay in recording F. I. R. of the same incident was on account of earlier misleading F. I. R. which was recorded by accused party against the complainant‑‑‑Subject F.I.R. was directed to be lodged after investigation in crime and allegations against accused were that of causing fire from his rifle on the complainant party‑‑‑High Court refused to interfere with order of Trial Court‑‑‑Bail application was dismissed.

Abdul Rasool Abbasi for Applicant.

Mukhtiar Ahmad Khanzada for the State.

2002 P Cr. L J 1645

[Karachi]

Before Muhammad Mujeebullah Siddiqui, J

MUHAMMAD YOUSAF and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.671 of 2001, decided on 31st January 2002.

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

‑‑‑‑S. 497(1)‑‑‑Penal Code (XLV of 1860), Ss.302/324/337‑A(I)/505/34‑‑‑Bail, grant of ‑‑‑Presence of accused at place of incident was shown in promptly lodged F.I.R. and accused were named therein‑‑­Nothing had been brought on record to show false implication of accused‑‑‑Accused were alleged to have arrived at the scene of occurrence duly armed alongwith co‑accused who was also alleged to have fired with his gun at the minor girl causing her death‑‑‑Accused could not be absolved of vicarious liability of causing death of an innocent minor girl‑‑‑Nothing was on record to show that there was any reason for false implication of accused or complainant had any axe to grind against the accused‑‑‑Case being not fit for grant of bail, bail application was rejected in circumstances.

Syed Muhammad Shah v. The State 1993 SCMR 550; Muhammad Arshad v. The State PLD 1996 SC 122; Athar Khan v. The State PLD 1972 Lah. 119; Aftab Ahmed Khan v: The State 2001 PCr.LJ 1038; Noor Ellahi v. The State 2001 PCr.LJ 1; Dhani Bux v. The State 2002 MLD 35; Ataullah v. The State 1999 SCMR‑1320; Tariq Bashir v. The State PLD 1995 SC 34; Muhammad Ishaq v. The State 1996 PCr.LJ 845; Hashim and 2 others v. The State 1996 PCr.LJ 1681 and Munawar v. The State 1981 SCMR 1092 ref.

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

‑‑‑‑Ss. 410 & 497‑‑‑Bail application and appeal‑‑‑Scope‑‑‑Scope of bail application and appeal was not the same‑‑‑Principles for appreciation of evidence, while hearing appeals were not to be employed while deciding bail applications‑‑‑In‑depth scrutiny of entire evidence was required to be made during course of hearing of appeal while at stage of considering bail plea a mere tentative assessment was to be made and no in‑depth examination of facts was warranted and question of vicarious liability was also to be determine on basis of tentative assessment.

(c) Precedent‑‑‑

‑‑Judgments it: a criminal case ‑‑‑Precedented value‑‑‑Judgments in criminal cases were confined to facts of a particular case and were not to be treated as precedent until and unless facts of two cases were similar‑‑Judgment in a criminal case would have force of precedent, if any principle of law had been propounded which‑was of general application.

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

‑‑‑‑S. 497(1)(5)‑‑‑Grant .or cancellation of bail‑‑‑Considerations‑‑‑Considerations for grant of bail and for cancellation of bail were different altogether‑‑‑Once bail was granted, strong and exceptional ground would be required for its cancellation‑‑‑To deprive an accused of bail after its grant, was most serious measure which should not be resorted to until there was some legal compulsion to take such course.

Syed Ahsan Ali for Applicants.

Mukhtar Ahmed Khanzada, Asstt. A.‑G. for the State.

Muhammad Akbar Bajwa for the Complainant.

2002 P Cr. L J 1670

[Karachi]

Before. Muhammad Roshan Essani and Muhammad Mujeebullah Siddiqui, JJ

HILAM MUTEMA‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Jail Appeal No.'79 of 2002, decided on 24th April, 2002

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

‑‑‑‑S. 9(cc)‑‑‑Appreciation of evidence‑‑‑Plea of guilty‑‑‑Eleven capsules containing 10 grams of heroin each were excreted from body of accused by the time F.I. R. was lodged, but no Mashirnama of seizure thereof was prepared‑‑‑ Subsequent addition was of 35 capsules containing 18 grams of heroine each‑‑‑Absence of Mashirnama of seizure of capsules containing heroin was a serious flaw in prosecution case ‑‑‑F.I.R showed that each capsule allegedly recovered was containing 10 grams of heroin while subsequently recovered capsules were alleged to have contained 18 grams of heroin each‑‑‑Prosecution could not explain such discrepancy in the weigIht‑‑‑Accused, a Kenyan National was continuously in custody and was without any legal aid, therefore, there was every possibility of his receiving advice from jail inmates to plead guilty‑‑‑Trial Court, no doubt, could contact tin accused on plea of guilty, but when a person was without Regal . aid, then more onerous responsibility was laid on the shoulder of the Court to apply its mind to all the circumstances of case‑‑­Trial Court had framed charge in a stereotyped and mechanical manner as pro formma charge had been inserted in the file with filling of the blanks‑‑‑Accused was entitled to benefit ' of doubt as prosecution case was not free from serious doubts and lacuna, to which Trial Court hack not applied its mind‑‑‑Accused was acquitted in circumstances.

(b) Criminal trial‑‑‑

‑‑‑‑ Plea of guilty by accused‑‑‑Duty of Court‑‑Every Court is required to exercise its discretion with all due care and diligence‑‑‑Trial Court, no doubt, can convict an accused on plea of guilty, but when he its without legal aid, then more onerous responsibility is laid on the shoulders of Court to apply its mind to all the circumstances of case.

(c) Criminal trial‑‑‑

‑‑‑‑ Plea of guilty by accused‑‑‑Benefit of doubt‑‑‑Entitlement‑‑‑Benefit of doubt would be extended to accused, whether he had pleaded guilt or not.

Appellant in Person

Shoaib Ashraf, Special Prosecutor, A.N.F. for Dy. A.‑G for the State

Date of hearing: 24th April, 2002

2002 P Cr. L J 1712

[Karachi]

Before Muhammad Roshan Essani and Muhammad Mujeebullah Siddiqui, JJ

RAMESH M. UDESHI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Accountability Appeals Nos.45, 48, 49, 50 and Criminal Revisions Nos. 147, 148, 149, 150, 162, 163 and 164 of 2001, decided on 3rd May, 2002.

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

‑‑‑‑Ss. 9 & 10‑‑‑Criminal Procedure Code (V of 1898), Ss.233. 234, 235, 403 & 407‑‑‑Constittrion of Pakistan (1973), Art. 406‑‑‑Corruption and corrupt practices‑‑‑Accused, as Secretary Provincial Land Utilization Department had allegedly submitted a joint summary to the Provincial Chief Minister benefiting 26 persons who were leased out lands in various Dehs‑‑‑Distinct offence‑‑‑Concept‑‑‑Multiplicity of trials on same set of facts‑‑‑Validity‑‑‑Once the accused was tried and convicted on the basis of joint summary from which benefits flowed m 26 persons and on account of single direction to the Competent Authority, subsequent prosecution and trial on the same set of facts was barred under the law‑‑­Such bar, however, was confined to the accused only who already stood tried and convicted in the earlier reference, which had nothing to do with the present trial of the beneficiaries who had not been earlier convicted and tried for the commission of corruption and corrupt practices‑‑­Principles‑‑‑Maxim "Nemo debet bis vexari pro una et eadem causa"‑‑­Scope and applicability.

Perusal of section 233, Cr.P.C. shows that the purpose of the enactment is to prevent embarrassment/difficulties to the accused in defending himself in respect of the charge or charges brought against him. However, at the same time Legislature has recognized that when in a given circumstance no embarrassment would be caused to an accused in defending himself, he should be tried for more than one offence in same trial in order to avoid the multiplicity of trials. The circumstances are mentioned in sections 222(2), 234, 235, 236 and 239, Cr.P.C. while applying the principles laid down in section 233, that for every distinct offence of which any person is accused there shall be a separate charge and every charge shall be tried separately, it should always be kept in view that the general rule laid down in section 233 was enacted for the benefit of the accused persons and not for that of the prosecution. It is also to be borne in mind that the accused should not be exposed to the risk of conflicting decisions.

Sections 233 to 240, Cr.P.C. deal with joinder of charges and they must be read together and not in isolation. When the exceptions contained in sections 234, 235, 236 and 239 are read with the general rule contained in section 233, Cr.P.C., it appears that the object of exception is to avoid the necessity of same witnesses giving the same evidence two or three times in different trials and to join in one trial those offences with regard to which the evidence would overlap.

A perusal of the illustration of section 233, Cr.P.C. shows that the expression "distinct offences" connotes the offences which have no connexion with each other. The illustrations of "distinct offences" may be categorized as follows:‑‑

(a) Offences falling under different sections of the same penal enactment.

(b) Offences falling under different penal enactments.

(c) Offences committed on different occasions even though they may fall under the same section.

(d) Offences committed against different persons.

(e) Offences committed by different persons individually though they may be of the same kind, as where three persons were charged with being drunk.

(f) Allegations of misappropriation against accused not in respect of any single amount but relating to different specific amounts received by him on different dates from different persons.

In the following cases, the offences of the same kind committed on one occasion were to be taken as one offence and not distinct offences:‑‑

(1) Theft of several articles from one person or more at the same time.

(2) The receiving of stolen property belonging to different owners or the gangs of different theft but received at the same time.

(3) The making of any number of false allegations in one statement.

(4) The misappropriation of several amounts of money not proved to be committed on different occasions.

(5) A single use of several forged documents as genuine in a Court of law.

(6) Receiving of bribe partly on one day and partly on another.

(7) Attempt to murder two persons by firing a single shot at them.

Now coming to section 235, Cr.P.C. under subsection (1) the accused may be charged with and tried at one trial for every offence which has been committed in one series of acts so connected together as to form the same transaction. The expression "same transaction" has not been defined in the Code. A series of act can be regarded as same transaction when they are connected together in some way in proximity of time, unity of place, unity of community of purpose or design and continuity of action. To these factors two other considerations may be added, i.e. whether several acts in series are related as cause and effect to each other and whether they are related to each other as principal and subsidiary acts. The real and substantial test in determining whether several offences are so connected together as to form one transaction depends upon whether they are related together in point of purpose or as cause and effect or as principal and subsidiary acts so as to constitute one continuous act.

Section 235 provides that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for every such offence.

The expression "same transaction" is not defined in the Code. The word "transaction" is by its very nature is incapable of exact definition. The real and substantial test for determining whether several offences are so connected together as to form one transaction is whether the offences are so related as principal and subsidiary acts, as to constitute one continuous action. It is, therefore, clear that the question whether distinct offences form part of the same transaction is one the answer to which must depend on the facts of each particular case.

The test employed by the Courts for determining whether separate offences committed in course of the same transaction is whether they are connected together by (i) proximity of time and place; (ii) community of purpose and design and (iii) continuity of action. The two last are essential elements while the first is alone insufficient for a joint trial.

Where two or more persons, being animated by common purpose, do certain acts constituting different, in the sense of not being the same offences, and there is continuity in their action, the various acts done by them in pursuance of that particular end in view, even though some of them may be merely accessory thereto, i.e. to the end in view, shall be regarded as forming one single transaction.

In the present cases, the point to be considered is whether the accused could be tried jointly in one trial for all the acts resulting in extending benefit to 26 persons, therefore, relevant provisions contained in section 239, Cr.P.C. need not be considered.

The principles contained in section 403, Cr. P.C. and Article 13 of the Constitution, are based on maxim "Nemo debet bis vexari pro una et eadem causa". It is a rule of law that a man shall not be twice vexed for one and the same cause. The maxim "nemo debt bis vexari pro una et eadem causa"; expresses a great fundamental rule of criminal law, which forbids that a man should be put in jeopardy twice for one and the same offence. It is the foundation of the special pleas of autrefois acquit and autrefois convict. When a criminal charge has been once adjudicated upon by a Court of competent jurisdiction, that adjudication is final, whether it takes the form of an acquittal or a conviction, and it may be pleaded in bar of a subsequent prosecution for the same offence, whether charged with or without matters of mere' aggravation, and whether such matters relate to the intent with which the offence was committed or to the consequences of the offence. Provided that the adjudication be by a Court of competent jurisdiction. It is immaterial whether it be upon a summary proceeding before justices or upon a trial before a jury.

Accordingly, a man, who has been indicted for an offence and acquitted, may not be indicted again for the same offence, provided that the first indictment were such that he could have been lawfully convicted upon it by proof of the facts alleged in the second indictment; and if he be thus, indicted again, his plea of autrefois acquit is a good bar to the indictment. The true test by which to decide whether a plea of autrefois acquit is a sufficient bar in any particular case is, whether the evidence necessary to support the second indictment would have been sufficient to procure a legal conviction upon the first. Thus an acquittal upon an indictment for the murder may be pleaded to an indictment for the manslaughter of the same person, and an acquittal upon an indictment for burglary and larceny to an indictment for the larceny of the same goods; for in either of these cases the prisoner might have been convicted, on the first indictment, of the offence charged in the second. But an acquittal on indictment for sodomy is no bar to a subsequent indictment for gross indecency with a male person, of which latter offence the prisoner could not have been convicted on the first indictment.

Similarly, the plea of autrefois convict operates to bar a second indictment after the prisoner has been prosecuted to conviction of what is substantially the same offence. Nemo debet bis punire pro uno delicto; and it is an established principle that out of the same state of facts a series of prosecutions against a prisoner is not to be allowed; for instance, upon this ground a conviction for obtaining credit for goods by false pretences bars a further indictment for larceny of the same goods. The pleas of autrefois convict and autrefois acquit, however, apply "only where there has been a former judicial decision on the same accusation in substance"; and therefore, where, after a summary conviction for an assault, the victim of the assault died, it was held that an indictment for manslaughter still lay against his assailant.

The expression "distinct offence" used in section 233 has no co­-relation with the expression "same offence" used in section 403, and further is not required to be read with the expression, "on the same facts or any other offence" used in subsection (1) of section 403, Cr. P. C. The expression "distinct offence" has been clarified by the Legislature in the illustration to section 233 to the effect that, "A" is accused of a theft on one occasion, and of causing grievous hurt on another occasion. A must be separately charged, and separately tried for the theft and causing grievous hurt". The expression "distinct offence" used in section 233 is to be read with the provisions contained in subsection (2) of section 403, which provides that person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235, subsection (1).

The provisions contained in section 233, that separate charges for "distinct offences" shall be framed and every charge shall be tried separately is for the protection of the accused persons so that he is not confused in defending himself and no harassment or prejudice is caused to him.

This general rule is subject to the exceptions mentioned in sections 234, 235, 236 and 239, Cr.P.C.

The provisions contained in section 233 are not to be interpreted or applied in a manner which gives leverage to the prosecution and has the effect of depriving an accused person whereby he is protected from jeopardy of double prosecution, and from facing the trial again and again, for which he could be prosecuted at one trial only.

It is bounden duty of the Courts to see that an accused person is saved from the agony of multiplicity of proceedings and scourage of repeated prosecutions and facing the same witnesses and the same prosecution material time and again.

The expression "offences of same kind" used in section 234, Cr.P.C. is again entirely, different from the expression same offence or for any other offence, on same facts used in section 403, Cr.P.C. The expression offences of same kind has been defined in section 234 itself and, therefore, no interpretation is required by us. The purpose of section 234, Cr.P.C. is also to minimize the cause of harassment or confusion to the accused. Again it is not for the benefit to the prosecution but for the benefit of accused so that the prosecution does not combine large number of offences allegedly committed by an accused person covered by unduly long period and further facilitate the Court to decide the case without confusion by confounding of the facts. The bar contained in section 234 and in the general rule for separate trial contained in section 233 has been relaxed in wider terms under section 235, Cr.P.C. In this section a provision has been made for joint trial if an accused has committed more offences than one and the offences have been committed in one series of act so connected together as to form the same transaction. Under the provisions contained in section 235, Cr.P.C., there is no limitation as to number of the cases and if the conditions enumerated in section 235 are fulfilled then any number of charges can be tried jointly at one trial if they are committed by the same person.

The expression "same offence" used in section 403, Cr.P.C. means same act or omission made punishable under the same provision of law and denotes the commission of offence in the same transaction. In terms of section 403(1), Cr.P.C. a person once tried by Court of competent jurisdiction for the offence and convicted or acquitted of such offence shall not be liable to be tried again for the same offence. The bar contained in section 403 for subsequent trial is not confined merely to the same offence but for act, other offence as well on the same facts for which a different charge from the one made against an accused could be framed under section 236 or an accused could be convicted under section 237, Cr.P.C.

In cases of acquittal, where section 403, does not apply in terms the principle embodied in the section may be properly invoked in order to meet ends of justice. There is no reason for not extending the principle to an accused who has been convicted in earlier trial and has been put again to subsequent trial on identical evidence and in regard to identical charges. The reason being that, the harassment caused to an accused by repeated convictions for same series of acts in same transaction and on identical evidence and identical charges is much more enormous than harassment caused to an accused who after facing the subsequent trial is bound to be acquitted.

However, subject to exceptions a person once tried and convicted or acquitted cannot be subsequently tried not merely for the same offence but also for any other offence based on the same facts.

An act committed by an accused, which is in consequence or pursuance of or is secondary to a principal act shall be deemed to be a part and parcel of the main offence and the principal as well as subsidiary act or omission shall jointly be treated as same offence and that out of the same set of facts in same transaction, a series of prosecution against an accused convicted or acquitted in earlier proceedings, is not to be allowed.

The accused/applicant was already tried and convicted for the commission of offence and subsequently on the basis of observations made by Accountability Court accused/applicant could not be tried again for the same offence or for the offence on the same facts.

The judicial officers are required to maintain the very high quality of impartiality and have to avoid everything meticulously, which may lead to the inference or impression that the Judge has transgressed his limits and has entered into the field which is reserved for the prosecutors and the defence. Court should also try to give more impression of an impartial arbiter having no inclination to be pro­prosecution or pro‑defence. The credibility of judiciary lies in complete impartiality, total transparency, adhering to the established principles of dispensation of justice without fear and favour, without giving any impression of inclination towards either of the parties.

Once the accused was tried and convicted on the basis of joint summary floated by him from which benefits flowed to 26 persons and on account of single direction the subsequent prosecution and trial on the same set of facts is barred under the law. Such bar is confined to the accused only who already stands tried and convicted in the earlier references, which have nothing to do with the prosecution and trial of the beneficiaries who have not been earlier convicted and tried for the commission of corruption and corrupt practices.

Meenapati Daveed and another v. The State AIR 1959 Andh. Pra. 137; Banwarilal v. Union of India AIR 1963 SC 1620; PLD 1963 Dacca 656; Mark Mifsud Mrs. Rosemarie Morley v. Investigating Officer, Customs, Karachi PLD 1999 Kar. 336; Hussain Abdullah Salum v. The state PLD 2001 Kar. 283; Khizar Hayat v. Commissioner, Sargodha Division PLD 1965 Lah. 349; Chuttani v. State of Uttar Paradesh PLD 1957 SC (Ind.) 23; AIR 1936 Rang. 94; AIR 1926 Nag. 89, AIR 1920 Cal. 571; AIR 1923 All. 547; AIR 1923 Cal. 557; 36 Cal. 806; 13 Cal. 270; 14 Cal. 128; AIR 1921 Cal. 114; 20 Cal. 413; 5 CWN 332; AIR 1952 SC 45; Mohan Lal v. The State 1975 PCr.LJ 684; Krishna Murthy v. Abdul Subhan AIR 1965 Mad. 128; Hussainbibi v. Emperor AIR 1926 Sind 151, Woodward v. Emperor AIR 1925 Sind 233; Aftab Ahmed Khan v. The State AIR 1954 SC 436; Noor Khan v. The State PLD 1958 Lah. 1052; The State v. Darajuddin Mondal PLD 1962 Dacca 424; Mosaddar Hoque v. State PLR 8 Dacca 607; Pundalic Shanker Gujar AIR 1924 Born. 448; Meenapoati Daveed AIR 1959 Andh. Pra. 137; Amir Khan v. The State PLD 1963 Dacca 92; Jitendra Nath v. Emperor AIR 1937 Cal. 99; Broom's Legal Maxims, published by Pakistan Law House, Xth Edn., pp.223‑224; Muhammad Ikram v. The State PLD 1965 Lah. 461 and Mst. Ramzan Bibi v. Hakim Muzaffar Hussain PLD 1967 Lah. 186 ref.

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

‑‑‑‑S. 233‑‑‑Purpose and scope of S.233, Cr.P.C.‑‑‑"Distinct offences"‑‑­Connotation‑‑‑Illustrations to S.233, Cr.P.C. interpreted and categorized.

Khizar Hayat v. Commissioner, Sargodha Division PLD 1965 Lah. 349; Chuttani v. State of Uttar Pradesh PLD 1957 SC (Ind.) 23; AIR 1936 Rang. 94; AIR 1926 Nag. 89; AIR 1920 Cal. 571; AIR 1923 All. 547; AIR 1923 Cal. 557; 36 Cal. 806; 13 Cal. 270; 14 Cal. 128; AIR 1921 Cal. 114; 20 Cal. 413; 5 CWN 332 and AIR 1952 SC 45 ref.

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

‑‑‑‑S. 235‑‑‑Scope and application of S.235, Cr.P.C.‑‑‑Determination of question as to whether several offences were so connected together as to form one transaction‑‑‑Test.

Mohan Lal v. The State 1975 PCr.LJ 684; Krishna Murthy v. Abdul Subhan AIR 1965 Mad. 128; Hussainbibi v. Emperor AIR 1926 Sind 151; Woodward v. Emperor AIR 1925 Sind 233; Aftab Ahmed Khan v. The State AIR 1954 SC 436; Noor Khan v. The State PLD 1958 Lah. 1052; The State v. Darajuddin Mondal PLD 1962 Dacca 424 and Mosaddar Roque v. State PLR 8 Dacca 607 ref.

(d) Maxim‑‑‑

‑‑‑‑"Nemo debet bis vexari pro una et eaden causa"‑‑‑Meaning, scope and application.

Broom's Legal. Maxims, Xth Edn. published by Pakistan Law House, Xth Edn., pp.223‑224 ref.

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

‑‑‑‑Ss. 233, 235 & 403‑‑‑Expression "distinct offence" ‑‑‑Scope.

Muhammad Ikram v. State PLD 1965 Lah. 461; Mst. Ramzan Bibi v. Hakim Muzaffar Hussain PLD 1967 Lah. 186 and Hussain Abdullah Salum v. The State PLD 2001 Kar. 283 ref.

(f) Administration of justice‑‑‑

‑‑‑‑ Court is required to maintain high quality of impartiality and avoid everything meticulously which may lead to the inference or impression that the Court has transgressed his limits and has entered into field which was reserved for the prosecutors and the defence‑‑‑Credibility of judiciary lies in complete impartiality, total transparency, adhering to the established principles of dispensation of justice without fear and favour without giving any impression of inclination towards either of the parties.

Mrs. Ismat Mehdi and Arshad Hussain Khan for Appellant.

Anwar Tariq Khan, D.G.P. NAB for the State.

Date of hearing: 4th April, 2002.

2002 P Cr. L J 1765

[Karachi]

Before S. Ahmed Sarwana and Muhammad Mujeebullah Siddiqui, JJ

GOVERNMENT OF SINDH through Advocate‑General, Sindh‑‑‑Applicant

versus

FARAD NASEEM and 3 others‑‑‑Respondents

Criminal Revision No. 105 of 2002, decided on 11th June, 2002.

(a) Administration of justice‑‑‑

‑‑‑‑ Non‑mentioning the provision of law in application‑‑‑Effect‑‑‑Duty of Court is to examine as to under which provision of law the application or any other proceedings have been initiated‑‑‑Court has to make its decision on the basis of substance contained in the application or any other pleading.

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

‑‑‑‑S. 265‑C‑‑‑Applicability of provisions of 5.265‑C, Cr.P.C.‑‑‑Right of accused to obtain certified copy of a document or any part of record‑‑­Section 265‑C, Cr.P.C., speaks of supplying of statement and documents to accused free of costs before commencement of trial, but does not speak of his entitlement to obtain certified copy of a document or any part of record.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 87‑‑‑Certified copies of public documents‑‑‑Right of a person to obtain such document‑‑Procedure, manner and person authorized to issue certified copies are absolutely distinct matters‑‑‑Article 87 of Qanun‑e­-Shahadat, 1984 provides procedure for supplying certified copies of public documents, but has nothing to do with the right of a person affected by judgment or order for obtaining certified copy of an order, deposition etc.

(d) Words and phrases‑‑‑

‑‑‑‑"Matter"‑‑‑Meaning.

Chambers 20th Century Dictionary (New Edrl. 1983) ref.

(e) Administration of justice‑‑‑

‑‑‑‑ Courts should always be allowed to perform their duties in absolutely free atmosphere and without any direct or indirect pressure tactics.

(f) Administration of justice‑‑‑

‑‑‑‑ Judicial proceedings‑‑‑Duty of parties to prosecute and defend their case in Court room only, keeping in view the norms of judicial proceedings‑‑‑Court proceedings should neither be politicized or scandalized nor any judicial order should be exploited in any manner whatsoever nor any party or other person should resort to media trial or to any act, which may charge the atmosphere unnecessarily, so that Court is provided absolutely cool and congenial environment for deciding the issues before it.

(g) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Part II, Chap. 2 [Arts.29 to 40]‑‑‑Principles of policy‑‑‑Courts are not concerned at all with the Principles of Policy contained in Part II, Chap. 2 of the Constitution and ,those cannot be enforced through Courts.

(h) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 2(1)(b) & 164‑‑‑Penal Code (XLV of 1860), S.29‑‑‑General Clauses Act (X of 1.897), S.3(16)‑‑‑Expression "document"‑‑‑Photograph is a "document"‑‑‑ Movie film is also a photograph and cannot be excluded from purview of "document".

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

‑‑‑‑S. 548‑‑‑Right of affected party to obtain copy of order, deposition or other part of record‑‑‑Provisions contained in S.548, Cr.P.C. are mandatory in nature as word "shall" has been used by the Legislature‑‑­Person affected by a judgment or order passed by Criminal Court has a mandatory right to have a copy of any order or deposition or other part of the record‑‑‑No discretion lies with Court to refuse the supply of copy of such order etc. to affected person.

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

‑‑‑‑S. 548‑‑‑Penal Code (XLV of 1860), Ss.365‑A, 368, 302, 109. 201, 120‑A/34 & 29‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss.7 & 8‑‑­General Clauses Act (X of 1897), S.3(16)‑‑‑Qanun‑e‑Shahadat (10 of 1984), Arts. 2(1)(b)(c) & 164‑‑‑Constitution of Pakistan (1973), Arts. 14, 5 & 25‑‑‑Production of video cassette of the incident in evidence by prosecution‑‑‑Accused applied for obtaining certified copy of video cassette to establish that same was fake and not genuine‑‑‑Trial Court allowed such application‑‑‑Validity‑‑‑Charge against accused, if proved, would entail awarding of death sentence, thus, they were entitled to plead that no action detrimental to their life should be taken except in accordance with law‑‑‑Right of affected person to be furnished with a certified copy of any part of the record was the mandatory requirement of laws contained in S.548, Cr.P.C.‑‑‑Video cassette was a matter expressed through figures or marks, thus, fell within the purview of expression "document" as defined in ,S.29, P.P.C., Art.2(1)(b) of Qanun‑e­-Shahadat, 1984 and S.3(16) of General Clauses Act, 1897‑‑‑Video cassette being the most important piece of evidence produced by prosecution was forming part of the record, thus, it was inalienable right of the accused to receive certified copy thereof, which they were entitled to get by virtue of the provisions contained in S.548, Cr.P.C.‑‑­Principles.

Accused are entitled for the certified copy of the video cassette by virtue of the provisions of S.548, Cr.P.C.

Video cassette is admittedly a part of the record and whatsoever be the status of matter forming part of the record, a person affected is entitled to be furnished with the copy thereof.

Since the entitlement of an affected person under section 548, Cr.P.C. is not confined to a document, therefore, the entire arguments directed on the point that the video cassette is not a document, but is a crime article, therefore, the accused are not entitled for the certified copy of the video cassette is totally misconceived. Even otherwise, the video cassette falls within the purview of "document" for the reason that the definitions of document contained in section 29, P.P.C. and Article 2(b) of Qanun‑e‑Shahadat, 1984 leave no scintilla of doubt that video cassette squarely falls within the purview of "matter expressed or described upon any substance by means of letters, figures or marks". Explanation 1 to section 29, P.P.C., further supports this view, which says that it is immaterial by what means or upon what substance, letters, figures or marks are formed.

Section 3(16) of General Clauses Act, 1897 shows that the definition is inclusive and not conclusive and further it pertains to any matter written expressed or described upon any substance by means of letters, figures or marks which is intended to be used or which may be used for the purpose of recording that matter.

Word "matter" means that which occupies space and with which one becomes acquainted by the bodily sense. Video cassette is a matter expressed through figures or. marks and thus falls within the purview of expression "document" defined in P.P.C., Qanun‑e‑Shahadat, 1984 and General Clauses Act, 1897. There can be no two opinions that still photograph is a document. Movie film, which is also a photograph, cannot be excluded‑from purview of document. Contention that movie contains such material the display whereof is an offence under S.8(c) of Anti‑Terrorism Act, 1997, and therefore, it is merely a crime article and not a document, is untenable.

Statement of prosecution witness made before the Court falls within the category of oral evidence and the video cassette 'produced by him falls within‑the category of documentary evidence.

Provisions contained in Article 164 and Article 2(c) of Qanune‑e­Shahadat, 1984, if read together, lead to the only conclusion that the video cassette produced by the prosecution and brought on record is a document.

Admitted position, in the present case, is that the video cassette, a certified copy whereof has been directed to be supplied to accused persons by Trial Court forms part of the record. Provisions contained in section 548, Cr.P.C. are mandatory in nature as word "shall" has been used by the Legislature. It is the mandatory right of any person affected by a judgment or order passed by Criminal Court to have a copy of any order or deposition or other part of the record and no discretion lies with the Court to refuse the supplying of such copy of the order etc., to the affected person.

Constitution enjoins upon every citizen and every other person for the time being within Pakistan to obey the Constitution and law and declares it to be inviolable obligation, then it is requirement of the Constitution that the mandatory requirement of the law should be obeyed.

Under Article 4 of the Constitution of Pakistan, the life of deceased, an American national could not be taken away to otherwise than in due course of law and if it is established by prosecution before the Trial Court that the accused are responsible for taking the life of an innocent American citizen for the time being in Pakistan, then surely they will be dealt with in accordance with law. However, at the same time, the accused have all the rights to defend their case and to establish that the charge against them is false or the prosecution is not able to establish charge beyond reasonable doubt and that any piece of evidence produced by the prosecution is not worth reliance or is not genuine or is fake or doubtful, and has to be excluded from the consideration, for the purpose of awarding any conviction or sentence to them. The charges against the accused if proved may entail the awarding of death sentence 'and therefore, they are entitled to plead that no action detrimental to their life should be taken except in accordance with the law, and if in the process they are entitled to obtain the certified copy of the video cassette, which is the most important piece of evidence produced by the prosecution, it is their inalienable right to receive the certified copy of the video cassette.

Contention of prosecution that release of cassette shall lead to the massacre of Muslims and give wrong message to the world at large, because there is a potential risk of being put the same on website, appears to be absolutely unfounded. The prosecution has itself conceded that video cassette, certified copy whereof has been directed to be supplied to the accused is already on display on at least 5 web sites.

The sense of insecurity, sectarian hatred, furor, horror, fear and all such other effects are the creation of emotions and the emotions of the viewers do not bother for the reasons such as certified or uncertified version of a document.

High Court, however, directed both the parties not to release or display/exhibit the authorized/authenticated/certified copy of video cassette or its copy on any T.V. Channel, web site or in any other manner for public display or publicity. The authenticated/certified copy of the video cassette is not to be supplied by any party to any person in a manner that it is put to public display, through any person directly or indirectly. If after this direction, the video cassette is displayed by any person and the authorities competent are of the view that any such display amounts to commission of offence under section 8(c) of the Anti-­Terrorism Act, 1997, the authorities concerned shall be at liberty to initiate proceedings in accordance with law. The certified copy of the video cassette directed to be furnished to the accused shall be used for the purpose of cross‑examining the Investigating Officer, whose statement has not been recorded so far or any other witness and for furnishing evidence in defence through any expert witness and for the process/purposes connected therewith only.

(k) Rule of law‑‑­

‑‑‑‑ Adherence to rule of law is the greatest loyalty to the State‑‑‑Deviation from rule of law is always, fraught with the consequences, which are detrimental to larger interests of individual, public at large and the State‑‑‑Adherence to rule of law is the mandatory obligation of all the Courts signifying loyalty to the State.

(1) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 4‑‑‑Article 4 of the Constitution is as comprehensive as the American "due process" clause.

(m) Interpretation of statutes‑‑‑

‑‑‑‑ All the provisions in a statute are to be read together.

Raja Qureshi, Advocate‑General, Sindh for Petitioner.

Abdul Waheed Katpar and Rai Bashir Ahmed for Respondents.

Date of hearing: 4th June, 2002.

2002 P Cr. L J 1818

[Karachi]

Before Shabbir Ahmed, J

Ch. ABID SAEED and others‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Special Criminal Bail Applications Nos.30, 31, 32. 33 of 2001, decided on 18th January, 2002.

(a) Criminal trial---

‑‑‑‑Where a statute has created a special offence and lays down a special procedure for investigation and trial of such offence, it is that procedure, that must be followed and not the ordinary procedure.

State v. Hamtho 1971 SCMR 686 fol.

(b) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 161, 162, 163 & 185‑A‑‑‑Penal Code (XLV of 1860). S.41‑‑­Report, arrest, seizure, search, arrest inquiry, submission of challan and cognizance‑‑‑Procedure‑‑‑Customs Act, 1969 is a special law within the meaning of S.41, P.P.C.‑‑‑Where the statute creates a special offence and lays down special procedure for investigation/inquiry as well as for trial of such offences and the special forum for trial then such procedure must be followed and not ordinary procedure and the Courts except the Special Court under the Customs Act, 1969 would have no jurisdiction in the matter of trial.

(c) Customs Act (IV of 1969)‑‑‑

‑‑‑‑Ss. 161, 162, 163, 185‑A & 185‑C‑‑‑Criminal Procedure Code (V of 1898), SA(1)(s), 5(2), 54, 59, 60, 61, 167, 160, 161, 169, 154, 172, 173, 164, 103, 190 & 497‑‑‑Bail, application for‑‑‑Allegation of smuggling‑‑‑Non‑issuance of notification of police station in terms of S.4(1)(s), Cr.P.C. for Customs‑‑‑Effect‑‑‑Provisions of Customs Act, 1969 and Criminal Procedure Code, 1898 would show that Ss. 161, 162, 163 & 185‑A of the Customs Act, 1969 contained similar provisions in Cr.P.C. for regulating arrest, search, report, remand, enquiry, charge-­sheet as well as taking of the cognizance in respect of offences under the Customs Act‑‑‑When a special law contains procedural provisions in respect of such matters, the provisions of Criminal Procedure Code, 1898 in terms of its S.5(2) would not be applicable and for that purpose the provisions regarding manner or place of investigation enquiring into or trying of such offences, as enumerated in the Customs Act, 1969 to be followed‑‑‑Non‑notification of police station, in terms of S.4(1)(s), Cr.P.C. for Customs would not make the report or the enquiry conducted on the basis of such report without jurisdiction in respect of offences emanating from Customs Act, 1969, accused, therefore, cannot canvass that his case required for the enquiry‑‑‑Contention that in the absence of notification of police station, the Customs Officer cannot investigate matter was repelled‑‑‑Where no reasonable grounds existed to believe that the accused had not committed the offence charged, bail application was rejected‑‑‑Case of one of the accused persons who was simply a driver of the vehicle which was carrying the goods in question lacked evidence in respect of his complicity with other co-accused, his case required further enquiry and was granted bail.

The question that requires determination in the present case is whether, the Customs Act contains the provisions regulating the procedure for investigating or inquiring into such offences. Sections 161, 162, and 163 of the Act contain the provisions in respect of procedure report, arrest, seizure, search; inquiry, remand and submission of challan, whereas section 185‑A, pertains to taking of the cognizance in respect of offences under the Act by the Special Court.

Perusal of the provisions of the Customs Act and Cr. P,C. would show that sections 161, 162, 163 and 185‑A of the Customs Act contain similar provisions as contained in Cr.P.C. for regulating arrest, search, report, remand, enquiry, charge‑sheet as well as taking of the cognizance in respect of offence under the Act. When a special enactment contains procedural provisions in respect of such matters, the provisions of Cr.P.C. in 'terms of section 5(2) would not be applicable. For that purpose, the provisions for regulating manner of place of investigation, enquiring into or trying of such offences, as enumerated in the Customs Act to be followed. Non‑notification of police station, in terms of section 4(1)(s); Cr.P.C. for Customs would not make the report or the enquiry conducted on the basis of such report, without jurisdiction in respect of offences emanating from Customs Act and subsection (12) of section 161, Customs Act, 1969 caters such eventuality, which provides that Officer of Customs empowered to hold enquiry, under this section shall maintain, register to be called register of Arrest and detention in the prescribed form in which he shall enter the name and other particulars of every person arrested, under this Act, together with date of arrest and detailed information received, details of goods or documents recovered from his custody, name of witnesses and explanation, if any given by him and the manner in which enquiry has been conducted from day to day and such Register be produced before the Special Judge, whenever such Officer is so directed by him. Therefore, it is fallacious to canvass that in absence of notification of police station, the Custom Officer cannot investigate the matte‑r. It may also be stated that reference to Incharge of police station in absence of nearest Customs officer in section 161 of the Act and for that matter report to Officer Incharge of police station in absence of nearest Customs Officer under section 192, will not make the establishment of police station a must in terms of section 4(1)(s) of the Code of by implication. It shall not be out of place to refer section 185‑C of the Act, which makes the provisions of Code applicable only to the proceedings before Special Judge, so long, they are not inconsistent with the provisions of Act.

It cannot be canvassed on behalf of the accused that their case required further enquiry.

Accused persons had no case for bail as there existed no reasonable grounds to believe that they had not committed the offence' charged. Consequently their bail applications were rejected.

Accused who was simple driver of the traller, which was carrying the containers, in absence of any evidence in respect of his complicity with other co‑accused his case required further inquiry. Consequently, he was granted bail in the sum of Rs.1,00,000 with P.R. Bond in the like amount to the satisfaction of the trial Court.

Maritimes Security Agency, Karachi v. Muhammad Saleem Khan PLD 1994 SC 486 and State v. Bashir PLD 1997 SC 408 distinguished.

Mrs. Navin Merchant for Applicant (in Special Criminal Bail No.30 of 2001).

Sohail Muzaffar assisted by Ms. Fouzia Rasheed for Applicants (in Special Criminal Bails Nos.31 to 33 of 2001).

S. Tariq Ali, Federal Counsel (in all applications).

Dates of hearing: 14th, 27th, December; 2nd and 4th January. 2002.

2002 P Cr. L J 1845

[Karachi]

Before S. Ahmed Sarwana and Muhammad Mujeebullah Siddiqui, JJ

MUHAMMAD RAFIQ alias RAFIQ ARMED QADIR and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos. 126 and 139 of 2002, decided on 3rd June, 2002.

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

‑‑‑‑Ss. 9 & 10‑‑‑Penal Code (XLV of 1860), S.107‑‑‑Criminal Procedure Code (V of 1898), Ss.561‑A & 265‑K‑‑‑Quashing of proceedings pending before Accountability Court‑‑‑Contention of accused was that there was no probability of their conviction for any offence as out of 16 prosecution witnesses not a single witness had deposed against them except co‑accused, who. turned to be approver‑‑‑Trial Court dismissed the applications made by accused under S.265‑K, Cr.P.C.‑‑‑Validity‑‑­Prosecution could not show that after exclusion of testimony of approver/accomplice, what other evidence was available on record on point of abetment on the part of accused‑‑‑Only evidence available with prosecution on point of abetment was that of approver/accomplice, who had been granted pardon before recording of his alleged confession‑‑­Such confession was exculpatory in nature, thus, prosecution had no option but to state that it would not place reliance on statement of approver/ accomplice, resultantly, no evidence whatsoever was left to implicate the accused with abetment for commission of offence by main accused, who had died‑‑‑In absence of any evidence on point of abetment, continuance of criminal proceedings against accused, even for a single day, would amount to harassment of accused and abuse of judicial process‑‑‑High Court quashed the proceedings pending before Accountability Court and acquitted the accused in circumstances

Yasin Siddiqui v. The State 2001 PCr.LJ 1331. ref.

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

‑‑‑‑Ss. 561‑A & 265-K‑‑‑Quashing of proceedings‑‑‑Inherent jurisdiction of High Court under S.561‑A, Cr.P.C.‑‑‑Nature and scope.

Inherent jurisdiction of High Court tinder section 561‑A, Cr.P.C. is not an alternative forum and High Court cannot assume the role of Trial Court for evaluating and assessing the evidence on record in the first instance.

In exercise of inherent jurisdiction of High Court under section 561‑A, Cr.P.C. proceedings shall be quashed to secure the ends of justice, if it is found that in case of continuance of the proceedings, it would defeat the ends of justice and would operate as an act of injustice. Whenever, it is established that there is no evidence against an accused person warranting conviction for any offence and the trial Court fails to exercise the jurisdiction vested under S.265‑K, Cr.P.C., it would be an appropriate case for High Court to interfere in exercise of inherent jurisdiction under section 561‑A, Cr.P.C. to secure the ends of justice.

Each case has to be examined on its own merits. If in a case where prosecution has examined all the witnesses and there, is probability of conviction of accused, High Court will not interfere in exercise of its inherent jurisdiction and shall allow the Trial Court to assess and evaluate the evidence and exercise the jurisdiction vested in it. In case of availability of prima facie evidence, High Court will not stifle the normal course of proceedings and shall not usurp the jurisdiction vested in trial Court or pre‑empt the finding of a Court of competent jurisdiction. If it is established before High Court that after examining all the witnesses, the prosecution has failed to bring any evidence worth reliance on record and trial Court instead of exercising its jurisdiction under section 265‑K, Cr.P.C. which empowers trial Court to acquit an accused at any stage of the case, fails to exercise its jurisdiction and insists for continuing the proceedings without any justification, High Court shall certainly interfere in exercise of jurisdiction under section 561‑A, Cr.P.C. to prevent the abuse of the judicial process.

Khalid Anwar for Applicants.

Muhammad Anwar Tariq, D.P. G.A., NAB for the State.

Date of hearing: 3rd June, 2002.

2002 P Cr. L J 1885

[Karachi]

Before Muhammad Afzal Soomro, J

ALI NAWAZ‑‑‑Applicant

versus

THE STATE‑‑‑Respondent

Criminal Bail Applications Nos.S‑120 and S‑157 of 2002, decided on 29th March, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/114/34‑‑‑Bail, grant of‑‑‑Confessional statement of‑ co‑accused had got only a corroborative value‑‑‑Case was of two versions inasmuch as according to confession of co‑accused, he fired three shots and ocular version also disclosed three injuries but such version was not in line with medical evidence as post‑mortem notes had disclosed two injuries ‑‑‑Co‑accused in his judicial confession had absolved rest of the accused as mentioned in F.I.R.‑‑‑Accused having. been able to make out case for bail, he was granted bail.

1980 SCMR 784; 2002 PCr.LJ 220; 1988 SCMR 1452; 1980 SCMR 190; 1999 SCMR 421; Murad Khan v. Fazal‑e‑Subhan and another PLD 1983 SC 82; Sarwar Sultan v. The State and another PLD 1994 SC 133; Muhammad Safdar and others v. The State 1983 SCMR 645; Muhib Razik v. Shah Muhammad and another 1983 SCMR 1130; Istikhar Ali v. Aurangzeb and others 2000 MLD 1544; Wajid Ali v. Mumtaz Ali Khan and another 2000 MLD 1172; Sakhawat Ali v. Khalid Mehmood and others PLD 1994 Lah. 377 and Mureed v. The State 2000 MLD 1172 ref.

Muhammad Ayaz Soomro for Applicants.

Safdar Ali Bhutto for the Complainant.

Gul Hassan Solangi for the State.

2002 P Cr. L J 1898

[Karachi]

Before Muhammad Afzal Soomro, J

M. IBRAHIM BURIO and another‑‑‑Applicants

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑50 of 2002, decided on 13th March, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑Case was of two versions one given in the F.I.R. and the other recorded in statements under S.164, Cr.P.C.‑‑‑Both versions were contradictory to each other‑‑‑Two prosecution witnesses had stated that they had neither seen the accused at the spot nor they had taken part in the incident‑‑­Nothing incriminating was secured from the possession of accused‑‑‑Out of three eye‑witnesses. two had not supported case of prosecution‑‑­Effect‑‑‑Evidence of complainant alone was not enough to substantiate case of prosecution‑‑‑Case calling further enquiry accused were enlarged on bail.

Shah Baz Gul v. The State 1984 PCr.LJ 2495; Muhammad Jaffar v. The State 1987 PCr.LJ 1338; Mir Muhammad and another v. The State 1993 PCr.LJ 88; Nadeem Burney v. The State 1999 MLD 1259; Akhtar Zaman v. State 2001 YLR 2076 and Ghafoor Ahmad v. The State 2001 YLR 2362 ref.

Muhammad Ayaz Soomro fur Applicant.

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

2002 P Cr. L J 1952

[Karachi]

Before Muhammad Afzal Soomro, J

MEER MOSTOI‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑150 of 2002, decided on 12th March, 2002.

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/324/114/148/149‑‑­Bail, grant of‑‑‑Accused was armed with a country‑made pistol and no role of any kind was attributed to him‑‑‑Version of complainant in F.I.R. was in direct conflict with statement of prosecution witnesses‑‑‑Case being of two versions, called for further enquiry‑‑‑Accused having been able to make out case for bail he was granted bail.

Muhammad Ayaz Soomro for Applicant.

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

2002 P Cr. L J 1964

[Karachi]

Before Sarmad Jalal Osmany and Zia Parvez, JJ

ROSHAN ALI SHAH‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Miscellaneous Application No. 1107 of 2000 in Criminal Appeal No. D‑96 of 2000, decided on 5th December, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 426‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.48(1)­ ‑‑Suspension of sentence pending appeal‑‑‑Sentence for offence allegedly committed by accused was three years plus fine of Rs.5,000‑‑‑Appeal was not likely to be disposed of within one year‑‑‑State Counsel had no objection if accused was released on bail‑‑‑Sentence was suspended and accused was released on bail.

Nisar Ahmed G. Abro for Applicant.

Altaf Hussain Surahio for the State.

2002 P Cr. L J 1980

[Karachi]

Before Rasheed Ahmad Razvi and Muhammad Ashraf Leghari, JJ

HAKIM ALI ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Applications Nos.D‑250 and 251 of 1999, decided on 26th October, 1999.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(1)(2)‑‑‑Penal Code (XLV of 1860), Ss.399 & 401‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑D‑‑‑Bail, grant of‑‑­Further inquiry‑‑‑F.I.R. was wrongly lodged against accused under Ss.399/401, P.P.C. as number of accused in the case was three which was sufficient ground for grant of bail‑‑‑Offence under S.13‑D of West Pakistan Arms Ordinance, 1965 did not fall within prohibitory clause of S.497, Cr.P.C.‑‑Prosecution needed some more material to connect accused with offence‑‑‑Case requiring further enquiry, bail was granted to accused.

Abdul Zubair v. The State 1997 SCMR 966 ref.

Nisar Ahmed G. Abro for Applicants.

Altaf Hussain Surahio for the State.

2002 P Cr. L J 1990

[Karachi]

Before Ghulam Nabi Soomro, J

IMDAD‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. S‑521 and Miscellaneous Applications Nos. 1044 and 1045 of 2001, decided on 17th August, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(1)‑‑‑Surrender of Illicit Arms Act (XXI of 1991), S.(c)‑‑­Bail, grant of‑‑‑Allegation against accused was that he was carrying unlicensed gun‑‑‑Accused had contended that gun which was licensed one belonged to his grandfather‑‑‑Grandfather of accused in his affidavit had affirmed the contention of accused‑‑‑Accused, in circumstances, should have been challaned under S.13 of West Pakistan Arms Ordinance, 1965‑‑‑Offence even under S.7(c) of Surrender of Illicit Arms Act, 1991 was punishable for three years' R.I. as minimum sentence‑‑‑Bail was granted to accused in circumstances‑‑‑Complainant Police Officer having acted maliciously and corruptly in exercise of his authority, F.I.R. was directed to be registered against him under S.220, P.P.C. which would be investigated by a person of rank of D.S.P.

Nisar Ahmed Abro for Applicant.

Mushtaq Ahmed Kourejo for the State.

2002 P Cr. L J 2002

[Karachi]

Before Ghulam Nabi Soomro, J

GHULAM SHABIR‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.S‑417 of 2000, decided on 3rd November, 2000.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(1)‑‑‑Offences, Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(1)‑‑‑Bail, grant of‑‑‑Name of accused did not appear in F.I.R.‑‑‑Only evidence against accused was his identification held after more than three weeks of incident‑‑‑Offence allegedly committed by accused prescribed minimum punishment of rigorous imprisonment for three years which did not specify any maximum sentence for imprisonment‑‑‑Bail was granted in circumstances­.

Tariq Bashir v. The State PLD 1995 SC 34 ref.

Nisar Ahmed G. Abro for Applicant.

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

2002 P Cr. L J 2007

[Karachi]

Before Syed Zawwar Hussain Jafferi, J

GHULAM QADIR‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Constitutional Petition No.S/186 of 2002, decided on 3rd May, 2002.

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

‑‑‑‑S. 154‑‑‑First Information Report‑‑‑Word "shall" as used in S.154, Cr.P.C.‑‑‑Effect‑‑‑Use of word "shall" in S.154, Cr.P.C. clearly indicates that it had been used in the mandatory sense and does not allow any discretionary powers to the officer‑in‑charge of a police station‑‑­Such officer has no choice but to register the complaint in the prescribed book if information of cognizable offence is given to him by any person‑­If any information relating to commission of cognizable offence is given to an officer‑in‑charge of a police station, he is duty bound to record the statement of the complainant (informant) and have it signed by him and thereafter enter the same in the book prescribed by law.

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

‑‑‑S. 154‑‑‑Statement of complainant, recording of‑‑‑Cognizable offence‑‑‑Duty of officer‑in‑charge of police station‑‑‑Scope‑‑‑When any information relating to the commission of a cognizable offence is made before a police officer‑in‑charge of police station such officer is duty bound to record the statement of the complainant and have it signed by him and thereafter enter it in the book prescribed' by law for the purpose‑‑‑Complainant has a right to ask officer‑in‑charge of police to record F.I.R. against any person who commits cognizable offence‑‑Complaint has fundamental right to require the Police Officer to record his complaint and to act in accordance with law.

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

‑‑‑‑S. 154‑‑Constitution of Pakistan (1973) Art. 199 ‑‑‑ Constitutional petition‑‑‑Registration of F.I.R.‑‑‑Allegations made in complaint‑‑­Repelling of the allegations by counter‑affidavit‑‑‑Validity‑‑Where serious allegations were made against the accused person in Constitutional petition, the registration of F.I.R. could not be denied on the basis of counter‑affidavits.

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

‑‑‑‑S. 154‑‑‑Constitution of Pakistan (1973), Art.199‑‑----Constitutional petition‑ ‑‑Registration of F.I.R.‑‑‑Cognizable offence--‑‑Allegation of murder and Haraba--‑‑Plea of accused in counter‑affidavits‑‑‑Despite repeated applications and request by the petitioner to the police officials, no F.I.R. was registered against the accused‑persons‑‑‑Effect‑‑‑Officer­ in‑charge of police station was supposed to record the statement of the complainant: and. thereafter such information was to be kept, in such form as prescribed by Provincial Government ‑‑‑Stand taken by accused persons in their counter‑affidavits could only be considered by the Investigating Authority after registration of F.I.R. and not by High Court under its Constitutional jurisdiction‑‑‑High Court directed the Authority to register F.LR, and investigate the case in accordance with law‑‑ Constitutional ‑petition was allowed in circumstances.

Muhammad Ilyas v. Senior Superintendent of Police and another 1989 PCr.LJ 1129; 2001 PLC 1559; 1990 PCr.LJ 2006; Mrs. Javed v. S.H.O., Police Station Khanpur and others 2000 MLD 997; PLD 1998 Lah.72; 1999. PCr.LJ. 1317; 1999. PCr.LJ. 1532; 1999 SCMR 16; Multiline Associates. V. Ardeshir Cowasjee and others 1995 SCMR 362; Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883 and 1992 SCMR. 2912 ref.

Abdul Fateh Malik for petitioner.

Gul Bahar Korai for proposed accused.

Muhammad Iqbal Memon for the State.

Date of hearing. 19th April, 2002.

2002 P Cr. L J 2018

[Karachi]

Before Sayed Ali Aslam Jaffri, J

ANWAR MALIK ‑‑‑Applicant

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 103 of 2002, decided on 6th May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/148/149‑‑‑Bail‑‑‑Accused alongwith his co‑accused duly armed had allegedly entered in the house of the complainant and actively participated in the commission of the offence which resulted in the death of the deceased‑‑‑Accused had remained fugitive from law for about six years and he being closely related to the complainant and other co‑accused could not be believed to be unaware of his requirement in the case‑‑‑Principle of rule of consistency was not attracted as the co‑accused enlarged on bail was neither armed with any weapon nor he was alleged to have caused any injury to the deceased‑‑‑Bail was declined to accused in circumstances.

Jamshed Ali v. The State 1995 PCr.LJ 120; Mumtaz Hussain and 5 others v. The State 1996 SCMR 1125 and Muhammad Nawaz v. The State 1999 PCr.LJ 184 ref.

Saeed Ahmed Bijaranai for Applicant.

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

Date of hearing: 6th February, 2002.

2002 P Cr. L J 2029

[Karachi]

Before Muhammad Afzal Soomro, J

Miss TASNIM‑‑‑Petitioner

Versus

S.H.O. and others‑‑‑Respondents

Constitutional Petition No.S‑260 of 2002, decided on 10th June, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 154‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Registration of F.I.R.‑‑‑Behaviour of police officials‑‑‑Judicial notice‑‑‑Grievance of the petitioner was that the police officials entered her house forcibly at the later hours of night and looted gold jewellry‑‑­Contention of police officials was that they had gone to the house of the petitioner for execution of warrants issued by Family Court and on threats given by the petitioner and her husband they returned quietly‑‑­Validity‑‑‑High Court observed that for executing warrants issued by Family Court, the police personnel had become so vigilant that they went to the house of the petitioner in the late hours of the night‑‑‑High Court took judicial notice of the circumstances prevailing generally in the country and specially in Karachi city‑‑‑High Court did not accept the contention of the police official as it was not possible that the police mobile had gone to the petitioner's house and returned quietly without reacting after threats were given by the inmates ‑‑‑Averments made by the petitioner in her petition had the substance which could only be explored by recording evidence of the witness under Ss.161 & 164, Cr.P.C. produced on behalf of the petitioner, after registering First Information Report‑‑‑Same being. the fundamental right of a citizen of Pakistan, High Court directed the authorities to make arrangement for recording statement of the petitioner and register F.I.R. if any cognizable offence was made out from such statement‑‑‑Constitutional petition was allowed in circumstances.

S. Akhlaq Mehdi for Petitioner.

Suleman Habibullah, Addl. A.‑G. for Respondent No.3.

Respondent No.5 in person.

Date of hearing: 6th June, 2002.

2002 P Cr. L J 2036

[Karachi]

Before Sarmad Jalal Osmany, J

FAKEER GUL‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 102 of 2001, decided on 8th June, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 392/34‑‑‑Trial without jurisdiction‑‑‑Objection was raised before High Court that the Trial Court had no jurisdiction to conduct the trial of the appellant‑‑‑Appellant had fully participated in his trial before Trial Court as well as before Appellate Court without raising any objection‑‑‑Effect‑‑‑Raising of the objection at the appellate stage before High Court was without any merit‑‑‑Objection was overruled in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 392/34‑‑‑Appreciation of evidence‑‑‑Benefit of doubt‑‑­Contradictions in prosecution evidence‑‑‑Monetary dispute between accused and complainant‑‑‑Prosecution witness failed to prove recovery of case property and crime weapon from accused‑‑‑Accused was not identified by one of the prosecution witnesses during trial‑‑‑Memo. of scene of occurrence was prepared in police station‑‑‑Prosecution version suffered from number of contradictions‑‑‑Record showed that there was monetary dispute between the accused and complainant‑‑‑Effect‑‑‑Guilt of the accused had not been proved beyond any shadow of doubt as to the offence in question‑‑‑Prosecution version being riddled with contradiction, benefit of doubt yeas given to the accused‑‑‑Sentence and conviction awarded to the accused were set aside by High Court.

Allah Rakhio v. The State 2001 PCr.LJ 1959; Abdul Sattar and others v. The State 2001 PCr.LJ ,1945 and Sikandar v. The State 1990 PCr.LJ 396 ref.

Umar Farooq Khan for Appellant.

Qazi Wali Muhammad for the State.

Dates of hearing: 4th, 10th December, 2001 and 1st June, 2002.

2002 P Cr. L J 2048

[Karachi]

Before Muhammad Roshan Essani and Muhammad Mujeebullah Siddiqui, JJ

ABDUL HAQUE‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.214 and 220 of 2001, decided on 18th July, 2002.

Penal Code (XLV of 1860)‑‑­

‑‑‑‑Ss. 409 & 477‑A‑‑‑Prevention of Corruption Act (II of 1947) S.5(2)‑‑‑Appreciation of evidence‑‑‑All requirements of law had been fulfilled in framing the charge which did not suffer from any mistake, error, defect or ambiguity‑‑‑Accused, a bank employee, from the very beginning had the guilty intent and, therefore, in the first instance they had filled in the wrong Pay‑in‑slip and thereafter got an interpolation made in the Short Credit Register. which was very much visible on the document itself‑‑‑Signatures of the accused on the said Pay‑in‑slip had been verified by the Handwriting Expert whose testimony had gone unchallenged‑‑‑Accused had intentionally misappropriated the amount of Rs.2,50,000 deposited in the bank by the complainant and offences against them had been established on record by the prosecution beyond any doubt‑‑‑Trial Court had appreciated the evidence properly‑‑­Convictions and sentences of accused did not suffer from any illegality or irregularity and the same were upheld accordingly.

Muhammad Ilyas Khan and Moula Bux Bhatti for Appellants (in both the Criminal Appeals).

Khursheed A. Hashmi, Dy. A.‑G. for the State.

Dates of hearing: 27th and 28th May, 2002.

2002 P Cr. L J 2065

[Karachi]

Before Muhammad Mujeebullah Siddiqui and Muhammad Moosa K. Leghari, JJ

GHULAM NABI KATHIO‑ ‑‑Appellant

THE STATE‑‑Respondent

Criminal Jail Appeal No. D‑61 of 2000, decided on 21st May, 2002.

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

‑‑‑‑S. 10(3)‑‑‑Anti‑Terrorism Act (XXVII of 1997), Ss.6/7‑‑­Appreciation of evidence‑‑‑Accused being a poor man was not able to afford any Advocate and remained throughout unrepresented‑‑‑Accused also being an uneducated and illiterate person was unable to defend himself and the Trial Court was duty bound in the interest of justice to come to the rescue of the accused who on the face of the record had been victimized at the hands of the police and the local Zamindar‑‑‑False implication of the accused in the case by substituting his name in place of the name of the actual culprit was very much apparent‑‑‑Station House Officer of the concerned police station and his subordinate police officials had falsely implicated the accused in the case for the reason best known to them‑‑‑Accused was acquitted in circumstances.

Allah Bachayo Soomro for Appellant.

Muhammad Azeem Panhwar, Asstt. A‑G. for the State.

Date of hearing: 21st May, 2002.

2002 P Cr. L J 12

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD AZHAR NADEEM---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.1911/B of 2001, decided on 30th August, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Offence of Zina (Enforcement of Hudood) Ordinance, (VII of 1979), Ss.10/11---Bail---Matter had been reported to the police after a delay of six days ---Abductee was neither recovered front the custody of accused, nor she had charged the accused for the commission of Zina in her statement recorded under S.164, Cr.P.C.---Allegation against the accused, thus, needed further inquiry as envisaged under S.497(2), Cr.P.C.---Accused was admitted to bail in circumstances.

Rana Shaukat Hayat for Petitioner.

Malik Abdul Hameed Khokhar for the State.

2002 P Cr. L J 32

[Lahore]

Before Shaikh Abdur Razzaq and Muhammad Akhtar Shabbir, JJ

Mst. FATIMA ---Appellant

versus

THE STATE ---Respondent

Criminal Appeal No. 189 of 2000/BWP, heard on 27th March, 2001.

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

-----S. 9(c)---Appreciation of evidence---Chemical Examiner had refused to give his report on the first sample of the recovered opium and required a fresh parcel to be sent to him---No evidence was available on record to show as to who had prepared the second parcel on the basis of which a positive report had been secured from the Chemical Examiner---No conviction, therefore, could be based on the said report---No other evidence was available on record to connect the accused with the commission of the offence---Prosecution, in circumstances, had failed to bring home guilt to the accused beyond reasonable doubt and she was acquitted accordingly.

G.N. Gobar for Appellant.

Atta Muhammad Khan Baluch, Special Prosecutor for A.N.F.

Date of hearing: 27th March, 2001.

2002 P Cr. L J 41

[Lahore]

Before Muhammad Akhtar Shabbir, J

ABDUL MAJEED---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.SC-28 of 2000, heard on 8th May, 2001.

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

---Art. 3---Competency of a child to testify---Test---Observing intellect of a child in the shape of writing question and answer is not the requirement of law---Court is quite competent to give its observation with regard to the, intellect of the witness, meaning thereby that the only requirement is the satisfaction of the Court.

Karu Singh and others v. Emperor AIR 1942 Pat. 159; Lakhan Singh v. Emperor AIR 1942 Pat. 183; State of Orissa v. Machindra Majhi and another AIR 1964 Orissa 100; Qadeer Hussain v. The State 1994 PCr.LJ 788 arid Qadeer Hussain v. State 1995 PCr.LJ 803 ref.

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

----S. 10(3)---Penal Code (XLV of 1860), S.450---Appreciation of evidence---Father and mother of the minor girl being the inmates of the house were the natural witnesses of the occurrence who had deposed in line with the story of the F.I.R.---Ocular testimony was supported by medical evidence and recovery of blood-stained clothes. of the victim girl---No material discrepancies and contradictions were pointed out in prosecution evidence---Defence witnesses had not supported the accused---Complainant had nominated the accused in the promptly lodged F.I.R.---Mere relationship of the witnesses was no ground for discarding their evidence in the absence of any evidence on the record about their enmity with the accused---Defence plea was not plausible to believe that only for such a simple reason one could put at stake the honour and reputation of his minor daughter--­Conviction and sentences awarded to accused were upheld in circumstances---Sentence of whipping having been abolished was set aside.

Umar Jahan v. State 1979 SCMR 186; Karu Singh and others v. Emperor AIR 1942 Pat. 159; Lakhan Singh v. Emperor AIR 1942 Pat. 183; State of Orissa v. Machindra Majhi and another AIR 1964 Orissa100; Qadeer Hussain v. The State 1994 PCr.LJ 788 and Qadeer Hussain v. State 1995 PCr.LJ 803 ref.

A.R. Tayyab-for Appellant.

Ghazanfar Ali for the State.

Date of hearing: 8th May, 2001.

2002 P Cr. L J 58

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD ARSHAD---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Nos. 552/B and 559/B of 2001, decided on 13th July, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302/324/34 --- Bail --- Case of accused being at par with that of co-accused already released on bail by Trial Court, rule of consistency was attracted to their case--­Accused had not caused any injury to the deceased, nor they had played any role in the commission of his murder---No weapon of offence was recovered from one accused---Accused had been found innocent by the police during investigation and they had been placed in Column No.2 of the challan---Sufficient material was available on record to, prima facie, show false involvement of the accused in the case and their case required further inquiry---No useful purpose could be served by detaining the accused further in jail---Trial of accused was pot likely to conclude soon---Accused were allowed bail in circumstances.

Ahmad Mansoor Chishti for Petitioner (in Criminal Miscellaneous No.552/D of 2001).

Syed Saleem-ud-Din Aftab for Petitioner (in Criminal Miscellaneous No.559/B of 2001).

Ghazanfar Ali Khan and Mirza Nadeem Asif for the State (in Criminal Miscellaneous Nos. 352/B and 559/B of 2001).

2002 P Cr. L J 67

[Lahore]

Before Shaikh Abdur Razzaq and Muhammad Akhtar Shabbir, JJ

FAQIR HUSSAIN --- Appellant, versus

THE STATE---Respondent

Criminal Appeal No.58 of 1998/BWP, heard on 12th April, 2001.

Penal Code (XLV of 1860)---

----S. 302(b)/34---Appreciation of evidence---Presence of accused as well as of prosecution witnesses on the spot was not free from doubt---Solitary uncorroborated interested testimony of the eye­witness was contradicted by medical evidence and the same could not be made a basis of a capital charge---Deceased was not caused injuries as alleged by the prosecution but he had received injuries on his person in some other way as stated by the accused in his statement recorded under S.342, Cr.P.C. and the explanation given by him appealed to reason and fitted in the circumstances of the case---None of the five or six persons attracted to the scene .of occurrence was even examined by the Investigating Officer which had given a fatal blow to the prosecution case---Accused were acquitted in circumstances.

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

Muhammad Afzal Wattoo for Appellant.

Ch. Muhammad Aslam for the Complainant.

M.A. Farazi for the State.

Date of hearing: 12th April, 2001.

2002 P Cr. L J 78

[Lahore]

Before Ali Nawaz Chowhan, J

SHARAFAT HUSSAIN ---Petitioner

versus

THE STATE---Respondent

Criminal Revision No.86 of 2001, decided on 23rd October, 2001.

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

----S. 540---Power to summon material witness etc. ---Object---Object of S.540, Cr.P.C. is the prevention of the escape of the guilty person through inadvertence of the prosecution as well as the vindication of the innocence of the accused because of the carelessness or ignorance of any party.

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

----S. 540---Penal Code (XLV of 1860), Ss.302/337--A(ii)/34---Resummoning of doctor (prosecution witness)---Doctor had medically examined the accused petitioner and his medico-legal report was to be formally placed on record through the statement of the said Doctor who had either inadvertently or otherwise forgot to mention it while appearing at the trial---If it was on account of inadvertence then this factum ought to be brought on record for giving the Court a true picture of the event and if it was suppressed even then the defence had the right to ask the Court for bringing it on record through the re-examination of the Doctor---Prosecution being required to place all facts before the Court, it could not omit to bring the aforesaid fact also before the Court-- -To say that the said Doctor could be called as a defence witness did not sound proper, because he would remain a prosecution witness and the medico­legal reports were appended with the charge-sheet---Prosecution witness would retain his character as such and same was the case with a defence witness---Trial Court was consequently, directed to recall the said Doctor for his re-examination in the interest of justice---Revision petition was allowed accordingly.

Jewan and 9 others v. The State 1980 PCr.LJ 570; Pervez Ahmad v. Munir Ahmad and another 1998 SCMR 326; Mst. Aamna Bibi v. Kashif-ur-Rehman and another 1995 PCr.LJ 730; Muhammad Iqbal Khetana v. The State 1992 MLD 930 and Muhammad Rauf Anwar v. The State and others 1992 PCr.LJ 729 ref.

Malik Muhammad Rafique for Petitioner.

Malik Rabnawaz Noon for the Complainant.

2002 P Cr. L J 81

[Lahore]

Before Muhammad Farrukh Mahmud, J

ADNAN NABI---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.1925/B of 2001, decided on 29th August, 2001.

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

----S. 498---Penal Code (XLV of 1860), S.324---Pre-arrest bail, confirmation of---Prime consideration---Complainant had alleged that the accused fired at him which missed and hit the nearby wall, but no mark of fire was on the wall and no empty was recovered from the spot-- Accused had joined the investigation not only after the grant of pre-arrest bail, but earlier as well---Delay of about 22 hours in reporting the matter to the police was not satisfactorily explained---No injury having been caused on the person of the complainant and no empty having been found from the scene of occurrence, the recovery of pistol would hardly be relevant---Prime consideration for grant of pre-arrest bail would be the unjustified arrest---If the pre-arrest bail was not granted to the accused merely on the technical ground, it would serve no purpose as the accused had already joined the investigation---In case of the accused Police Officer instead of applying his mind, had been acting blind-folded upon the dictates of the complainant which had shown the mala fides on the part of the police---Interim pre-arrest bail already granted to the accused, was confirmed in circumstances.

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

----S. 103---Applying third degree method in recovery proceedings--­Third degree method could not be allowed to be applied on the accused for the purpose of recovery.

Muhammad Ashraf and another v. The State 1982 PCr.LJ 1286 and Muhammad Mehmood Sultan v. The State 1978 PCr.LJ 104 ref.

Muhammad Bashir Khan for Petitioner.

Muhammad Tanveer Sheikh for the Complainant.

Malik Abdul Hameed Khokhar for the State.

2002 P Cr. L J 85

[Lahore]

Before M. Javed Buttur and Ali Nawaz Chowhan, JJ

THE STATE---Appellant

versus

IFTIKHAR HUSSAIN and others---Respondents

Criminal Appeal No.88 of 1982, heard on 18th October, 2001.

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

----S. 302---Criminal Procedure Code (V of 1898), S.417(1)---Appeal against acquittal---Two deaths having taken place in the case the factum of enmity of prosecution witnesses with accused was not enough for brushing aside the ocular evidence in the absence of strong grounds for substitution---Trial Court had been finding faults with the prosecution case against infirmities which were not so gross---Trial Court, however, in the presence of two versions failed to develop its own story, rather it became just mechanical in acquitting all the accused by brushing aside one category of evidence or the other instead of placing all the facts together and coming to a coherent and logical conclusion---Mere return of the crime-empties by the concerned office for removing of objections did not make the same doubtful---Trial Court had discarded all the evidence as if it was an arithmetical proposition rather than an occurrence involving human beings---Occurrence had taken place in day time which had been promptly reported to the police---One accused had a strong motive against the complainant side and the other was injured during the incident---Presence of both the accused on the spot at the relevant time and their participation in the occurrence had been established--­Immediate occurrence might have taken place at the spur of the moment without any premeditation although the parties were inimical and the previous motive was nostalgia---Accused were consequently convicted under S.302, P.P.C. and sentenced to imprisonment for life each with fine in circumstances.

Gul Hassan's case 1988 SCMR 1143; Shahzado v. The State and others PLD 1977 SC 413; Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502; Muhammad Yousaf v. The State 1994 SCMR 1733; Ahmad Khan v. Nazir Ahmad and others 1999 SCMR 803 and Shamshad v. The State PLD 1963 SC 740 rel.

(b) Criminal trial---

---- Duties of Courts---Guidelines---Courts on account of their rich experience and skills are required to discover the truth within the periphery of facts before them, keeping in view the probabilities and while using the immense powers provided by substantive or procedural law, they should not allow the incompleteness of an episode to be an impediment in the way of drawing proper inferences from evidence or circumstances---Courts have not to act mechanically, nor to conduct a trial in a mechanical way nor to pronounce a judgment in a mechanical process---Judgment cannot be illuminative until it is also fact-finding and is focusing on materials on which truth can be based---Courts should also not be hesitant in using the tools of procedure for discoveries as these tools are meant to be used.

Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502; Muhammad Yousaf v. The State 1994 SCMR 1733; Ahmad Khan v. Nazir Ahmad and others 1999 SCMR 803 and Shamshad v. The State PLD 1,963 SC 740 ref.

Haji Miran Malik for the State.

Raja M. Anwar for Respondents.

Raja Shafqat Abbasi and Malik Rab Nawaz Noon for the Complainant.

Date of hearing: 18th October, 2001.

2002 P Cr. L J 97

[Lahore]

Before Ali Nawaz Chowhan, J

NIAZ ULLAH---Petitioner

versus

THE STATE---Respondent

Criminal Revision No. 141 of 2001, decided on 30th October, 2001.

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

----S. 74---Forbidding portion of S.74 not applicable to the innocent owner of the vehicle---Owner of a vehicle who may be running a taxi service or a rent-a-car service or where he had handed over his vehicle to a driver for running an errand for him and who has nothing to do with the crime is not an accused in the case and his case is not hit by the forbidding clause of S.74 of the Control of Narcotic Substances Act, 1997.

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

----S. 516-A---Control of Narcotic Substances Act (XXV of 1997), Ss.74 & 9-C---Superdari of the car---"Charas" weighing seven kilograms was allegedly found concealed in the spare wheel of the car in question which was being driven by the driver of the petitioner---Petitioner was the owner of the car who had been found innocent by the Investigating Agency---Car had been involved in the crime on account of a third person who was driving it and the prohibition of pre-trial custody created by S.74 of the Control of Narcotic Substances Act, 1997 could not be extended to the petitioner---Car in question was, therefore, directed to be handed over to the ,petitioner on "Superdari" with the undertaking that he would produce the same in the Court as and when required.

Syed Zafar Ullah Slari for Petitioner.

Mirza Rehman for the State.

2002 P Cr. L J 100

[Lahore]

Before Ijaz Ahmad Chaudhary, J

Mehr MUHAMMAD RAFI---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, SIALKOT and 12 others---Respondents

Writ Petition No. 17428 of 2001, decided on 25th September, 2001.

Criminal Procedure Code (V of 1898)---

----S. 540-A---Constitution of Pakistan (1973), Art.199---Constitutional petition---Maintainability---Dispensation from personal appearance in the Court---Application for---Private complaint was filed against 11 accused wherein it had been alleged that accused armed with fire-arms had fired indiscriminately, but nobody had received any injury during the occurrence---Application filed by some of the accused for dispensation from their personal appearance in the Court on each and every date of hearing had been accepted -by the Judicial Magistrate and also by the Sessions Judge in revision--Complainant challenged concurrent judgments of the Courts---Validity---Acceptance of application for dispensation of personal appearance had caused no miscarriage of justice while the Trial Court had exercised its discretionary power judiciously--­Order passed by Sessions Judge in revision was also a speaking order and cogent reasons had been given---If any person had a genuine case, the Court could dispense with his personal attendance and if the Court would exercise. its power, orders of Courts below could not be challenged through a Constitutional petition having been not passed without jurisdiction---In absence of any illegality or irregularity in the orders, passed by the Courts below, Constitutional petition against said orders was not maintainable.

Muhammad Sharif Khokhar for Petitioner.

2002 P Cr. L J 103

[Lahore]

Before Muhammad Farrukh Mahmud, J

FAROOQ AHMAD---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.1796/B of 2001, decided on 16th August, 2001.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 103---Surrender of Illicit Arms Ordinance (XX of 1991), S.7---Bail, grant of---No sealed parcel of the alleged recovered weapon was made at the spot and the recovered weapon had not been sent to any Arms Expert to ascertain whether it was the fire-arm weapon or not--­Offence against the accused being punishable with imprisonment for 14 years, such laxity on the part of the police, could not sustain---Recovery, though had been effected from the public place, but none from the public was associated in the recovery proceedings nor any explanation had been given for violation of S.103, Cr.P.C.---Case against the accused needing further probe and inquiry, the accused was admitted to bail.

Ahmad Jan alias Shinoo v. The State 1999 PCr.LJ 506 ref.

Mian Riaz Hussain for Petitioner.

Sh. Muhammad Raheem for the State.

2002 P Cr. L J 104

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD SHAFIQUE---Petitioner

versus

THE SATE---Respondent

Criminal Miscellaneous No.1835/B of 2001, decided on 21st August, 2001.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 103---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4---Bail, grant of---Investigation against the accused had been completed and he was no more required for the purpose of investigation---Remaining two accused had not been arrested---Report under S.173, Cr.P.C. had not been prepared and forwarded to the Court for the purpose of trial---Further detention of accused in jail would not advance the case of the prosecution in any manner---All the witnesses mentioned in the F.I.R. and also the recovery witnesses were the police officials and no reason had been advanced that as to why the provisions of S.103, Cr.P.C. had been violated---Case against the accused not falling within the mischief of the prohibitory clause of S.497, Cr.P.C., bail was granted to the accused.

Mughees Aslam Malik for Petitioner.

Muhammad Rafiq Rajput for the State.

2002 P Cr. L J 106

[Lahore]

Before M. Javed Buttur and Mian Muhammad Najam-uz-Zaman, JJ

MUHAMMAD IQBAL and others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No.1150 and Murder Reference No.499/T of 1999, heard on 3rd September, 2001.

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

----S. 10--Appreciation of evidence---Complainant/victim had not supported the prosecution case as in the cross-examination she had stated that she was tutored by someone and she was threatened by said person that if she did not give the statement according to the tutored version her children would be killed---Lady had admitted that accused present in the Court had not committed intercourse with her and that they were innocent---No other eye-witness of the occurrence was present and even Investigating Officer had admitted in the cross-examination that according to his investigation the occurrence was doubtful---Doctor who examined the complainant had stated that no marks of any type of injury were found on the body of the complainant and no marks of violence were present on her private parts---Complainant was a married female arid report of the Chemical Examiner that the vaginal swabs were stained with semen, were not a proof of Zina-bil-Jabr with her by the accused as she could have had a sexual intercourse with her husband before her medical examination---Medical examination report, in absence of any other evidence, would not establish the offence---Case, in circumstances, was of no evidence---Conviction and sentence recorded by the Trial Court against the accused were set aside and they were acquitted of the charge against them.

N.A. Butt for Appellants.

A.H. Masood for the State.

Date of hearing: 3rd September, 2001.

2002 P Cr. L J 108

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD RAMZAN---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1852/B of 2001/MN, decided on 22nd August, 2001.

Criminal /Proceed epode (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.324, 337-H(ii) & 148/149--­Bail, grant of---Accused who was allegedly armed with a Sota, did not cause any injury to the prosecution witness or to any other person and the only injury on the person .of said prosecution witness was caused by fire­arm--Accused, in one of the investigations was found to be innocent and in second investigation the Investigating Officer had concluded that the accused was present at the place of occurrence, .but no overt act had been attributed to him---No recovery had been effected, from the accused--­Case against the accused needed further probe and inquiry---Accused was granted bail, in circumstances.

Mian Fazal Rauf Joya for Petitioner.

Tariq Murtaza for the State.

2002 P Cr. L J 110

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD ASLAM---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1772/B of 2001, decided on 6th September, 2001.

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

----S. 497---Penal Code (XLV of 1860), Ss.324/337-A(ii)/148/149---Bail, grant of---Accused was alleged to be armed with hatchet but two injuries on head of the injured caused by the blunt weapons were not attributed to the accused---Injury attributed to the accused landed on the back of right ear, which initially was declared Shujja-i-Khafifah--- Two of the accused were alleged to be armed with fire-arms, but no injury was caused by the fire-arms which had shown that accused had no intention to kill anybody---Accused had not repeated blows and only one injury was attributed to him and neither any bone was, cut nor any fracture was caused in consequence of the injury caused by the accused---Question whether the case of the accused fell within the ambit of S.324, P.P.C. needed further probe and inquiry and other offences against the accused did not fall within the mischief of prohibitory clause of S.497, Cr.P.C.---Accused was entitled to grant of bail, in circumstances.

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

----S. 497---Bail, grant of---Principle---Law could not be stretched in favour of the defence or the prosecution for purpose of bail---Bail could not be withheld as punishment and in case where the Court would feel that it was a case of further inquiry, the bail could not be withheld even for a day.

Amir v. The State PLD 1972 SC 277; Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 and Shabbir Ahmad alias Shibli v. The State 1999 PCr.LJ 1348 ref.

Rana Zahid Iqbal, assisted by Tariq Zulfiqar Ahmad Chaudhry for Petitioner.

Mehr Muhammad Naeem Arshad for the Complainant.

Jamil Ahmad Chohan for the State.

Date of hearing: 6th September, 2001.

2002 P Cr. L J 113

[Lahore]

Before M. Javed Buttur and Ali Nawaz Chowhan, JJ

THE STATE---Appellant

versus

MUHAMMAD ASLAM and another---Respondents

Criminal Appeal No.99 of 1985 and Criminal Revision No.36 of 1986, heard on 4th October, 2001.

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

----Ss. 302 & 307---Criminal Procedure Code. (V of 1898), S.417--­Appeal against acquittal-- -Doctor who had conducted post-mortem of the deceased and examined the injured prosecution witness had only spoken of probabilities and was not absolutely certain about the timings---View of the doctor on the aspect of rigor mortis was also not absolutely correct or conclusive---Clues with respect to the timings of death were not sufficiently available in the statement of the doctor and the conclusions drawn by the Trial Court in this regard were abrupt and non-scientific rather imaginary ---F.I.R. had been promptly registered nominating the accused---Place of occurrence was situate in the thick of village Abadi--­One eye-witness had been injured---Trial Court had to weigh all these facts for giving a finding based on reason, common cause and logic, but it had made a jumble crochet of facts and came to the conclusions which were conjectural and devoid of reason and logic---Evidence of the injured witness had also been overlooked by the Trial Court whose injury could also have been fatal being in the stomach---Even if the injured witness was inimical towards the accused on account of land litigation, the person injuring him would rather be a worse enemy and substituting him for the accused did not appeal to common sense Ocular evidence had established the case against the accused and there was no defence evidence on the file to the contrary---Judgment of acquittal passed by Trial Court in favour of accused was set aside in circumstances--­Accused was convicted under S.302, P.P.C. and sentenced to death thereunder as he was not entitled to any leniency despite having been acquitted several years back and having legitimate expectancy of life---Accused was also convicted under S.307, P.P.C. for the murderous assault on the injured prosecution witness and sentenced to seven years' R.I. ---Compensation was also directed to be paid to the legal heirs of the deceased as well as the injured witness under S.544-A, Cr.P.C.---State appeal was accepted accordingly.

Modi's Medical Jurisprudence and Toxicology 21st Edn.; Chap.VI; Haji and 4 others v. The State 1972 PCr.LJ 465; Abdur Rehman v. The State 1983 PCr.LJ 2462; Ghulam Hussain and 5 others v. The State 1984 PCr.LJ 1807; Shahzado v. The State and 8 others PLD 1977 SC 413 and Raheem Bakhsh v. Abdullah Subhan and another 1999 SCMR 1190 ref.

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

----S. 302---Appreciation of evidence---Clash in medical evidence and ocular evidence---Opinion of the doctor as to the time of death of the deceased is never a conclusive piece of evidence, rather such an opinion is conjectural---Whenever there is a clash between the time of death as given by the prosecution witnesses and the one given by the doctor, the testimonies of the eye-witnesses while keeping in view the circumstances of the case are worthy of credence---Statement of doctor about the timings based on presence of semi-digested food in the stomach of the deceased also does not lead to the conclusion that the timings given by the doctor, if different than the timings given by the informant, render the latter's testimony of no value.

Haji and 4 others v. The State 1972 PCr.LJ 465; Abdur Rehman v. The State 1983 PCr.LJ 2462 and Ghulam Hussain and 5 others v. The State 1984 PCr.LJ 1807 rel.

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

----S. 302---Appreciation of evidence---Inimical witnesses---Testimonies of inimical witnesses are not to be set aside with a stroke of pen--­Criminal jurisprudence requires weighing of all circumstances and facts and sifting the grain out of the chaff as the motive cuts both sides---If on one hand enmity is taken as a defence plea, the prosecution also has equally and cogently this plea to offer.

Shahzado v. The State and 8 others PLD 1977 SC 413 rel.

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

----Ss. 302 & 307---Criminal Procedure Code (V of 1898), Ss.417 & 439---Appeal and revision against acquittal---Accused had been pleading his innocence throughout and he had been placed in Column No.2 of the challan---Possibility of one assailant causing injury to the deceased and to the injured prosecution witness could not be ruled out---Grounds were available for extending benefit of doubt to the accused---Appeal as well as the revision petition filed against the acquittal of accused were dismissed in circumstances.

Raja Muhammad Ayub Kayani for the State.

Sardar Muhammad Ishaq Khan and Malik Rab Nawaz Noon for the Complainant.

Sahibzada Ahmed Raza Kasuri for Respondents.

Dates of hearing: 2nd, 3rd and 4th October, 2001.

2002 P Cr. L J 126

[Lahore]

Before Mian Nazir Akhtar and Zafar Pasha Chaudhary, JJ

JAVED AHMAD---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.884 of 2001, heard on 30th August, 2001.

Penal Code (XLV of 1860)---

----Ss. 120-D & 304---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.5-A---Constitution of Pakistan (1973), Art. 10--- Safeguard as to arrest and detention---Trial in absentia--­Legality --- Accused was tried in absentia' and was convicted and sentenced as such---Accused had challenged his conviction and sentence contending that trial in absentia was illegal---State Counsel had conceded that the trial was coram non judice and had stated that he had no objection if conviction and sentence awarded to the accused in absentia, be set aside---State Counsel, however, had prayed that the case be remanded to the Trial Court for fresh trial on merit in accordance with law---Provisions of S.5-A of Suppression of Terrorist Activities (Special Courts) Act, 1975 whereby trial in absentia was permitted being illegal and violative of Art. 10 of Constitution of Pakistan (1973)--­Conviction and sentence of the accused were set aside and case was remanded to the Trial Court for a fresh trial in accordance with law.

Zia Ullah Khan and others v. Government of the Punjab PLD 1989 Lah. 554; Government of Punjab through Secretary, Home Department v. Zia Ullah Khan and 2 others 1992 SCMR 602; Haq Nawaz v. The State 1999 PCr.LJ 1381; Sahib Dad v. The State 1993 PCr.LJ 1778; Karamat Ali v. The State 1998 PCr.LJ 1779; Mehram Ali and others v. Federation of Pakistan PLD 1998 SC 1445 and Muhammad Ashfaque and others v. State 1998 PCr. LJ 1486 ref.

M. Iqbal Bhatti for Appellant.

A.H. Masud for the State.

Maqbool Elahi Malik, A.-G. (on Court's call).

Date of hearing: 30th August, 2001.

2002 P Cr. L J 130

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD, AMJAD and another---Appellants

versus

THE STATE---Respondent.

Criminal Appeal No. 1367 and Criminal Revision No.698 of 1999, heard on 19th September, 2001.

Penal Code (XLV of 1860)---

----S. 302/34---Appreciation of evidence---Presence of complainant and other eye-witnesses at the place of occurrence at relevant time did not stand to reason as all of diem were residents of different places and the presence of the accused at relevant time culminating into the death of the deceased at their hands was also shrouded in mystery---Contents of the F.I.R. did not reveal as to with what particular fire-arm the injuries had been caused to the deceased---Complaint also did not contain even the number of fire shots as well as the places upon which it landed on the person- of the deceased---Statement of the complainant that both the accused were armed with fire-arms stood belied by the statement of doctor who had deposed that injury on the person of the deceased had been caused by some sharp-edged weapon---Pistol allegedly used in occurrence was recovered after 8 days of recovery of empties, but the empties were not sent to Forensic Science Laboratory till the recovery of pistol and no explanation was given for said delay in sending the empties---Possibility of wedding the empties with the pistol which was recovered 8 days after recoveries of the empties, could not be ruled out--­Chhuri allegedly secured, had not been disclosed to be blood-stained, but report of Chemical Examiner had disclosed that same was stained with blood---Parcel of said Chhuri was not prepared on the spot, but the prosecution had succeeded in obtaining report of Chemical Examiner---Said fact had made recovery of Chhuri as well as report of Chemical Examiner untrustworthy---Motive of occurrence had been disbelieved---Prosecution having failed to prove its case against the accused beyond reasonable doubt, judgment of the Trial Court convicting and sentencing the accused, was set aside and the accused Were ordered to be released.

Muhammad Inayat Ullah Cheema for Appellant.

Muzaffar Iqbal Ch. for the Complainant.

Ch. Muhammad Ayub for the State.

Date of hearing: 19th September, 2001.

2002 P Cr. L J 160

[Lahore]

Before Ijaz Ahmad Chaudhary, J

NAZIR NADEEM --- Petitioner

versus

THE STATE--Respondent

Criminal Miscellaneous Application No.4095/B of 2001, decided on 17th August, 2001.

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

----S. 497---Penal Code (XLV of- 1860), S.395---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17--­Bail ---Nothing had been recovered from the accused out of the case property mentioned in the F.I.R.---Accused had been involved in the case on the ground that the complainant had told the police that he had confessed before him for the commission of the dacoity---Case was old, challan had been submitted in the Court and the accused, who was in judicial lock-up, could not be detained there for an indefinite period merely on the ground that he was involved in a heinous offence, particularly when sufficient evidence was not available with the prosecution to connect him with the commission of the crime---Involvement of accused in 'the case, prima facie, being doubtful its benefit was to be given to the accused at any stage and bail could not be withheld as a punishment---Bail was allowed to accused accordingly.

PLD 1994 SC 133; PLD 1973 SC 277 and PLD 1972 SC 81 ref.

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

----S. 497---Penal Code (XLV of 1860), S.395---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17--­Bail ---Submission of challan in the Court---Effect---Submission of challan in the Court is not a bar for the grant of bail, but bail cannot be cancelled as it can prejudice the case of any of the parties.

PLD 1994 SC 133 ref.

Khalid M. Moosa for Petitioner.

Muhammad Riaz Basra for the State.

2002 P Cr. L J 171

[Lahore]

Before Ijaz Ahmad Chaudhary, J

SABIR SAEED---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.543 of 1999, decided on 17th August, 2001.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Place of occurrence and the presence of accused there at the relevant time was admitted---Eye­witnesses though related to the deceased, had no motive to falsely implicate the accused in the case and they could not be termed as interested witnesses---Onus to prove the receipt of injuries by the accused during the incident was on him, but he had failed to discharge the same--­Eye-witnesses had established their presence at the scene of occurrence and had consistently stated that the accused had fired at the deceased and they could not be disbelieved simply on the ground of relationship--­Ocular testimony was fully corroborated by the recovery of the weapon of offence at the instance of accused and the medical evidence regarding the nature of injuries---Defence version was not probable and was not substantiated on record---Conviction and sentence of accused were upheld in circumstances.

Aftab Ahmad Bajwa for Appellant.

A.H. Masood for the State.

Date of hearing: 26th July, 2001.

2002 P Cr. L J 222

[Lahore]

Before Bashir A. Mujahid and Muhammad Farrukh Mahmud, JJ

SHER KHAN---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. 10/J of 1997 and Murder Reference No.485 of 1998, heard on 7th August, 2001.

Penal Code (XLV of 1560)--

----S. 302---Appreciation of evidence---Motive---Triviality of motive not a ground for reduction in sentence---Ocular testimony produced by eye­witnesses, who had faced the lengthy cross-examination, was trustworthy---Both eye-witnesses though were related to the deceased, but their evidence could not be brushed aside on that score alone when their ocular account stood fully corroborated---Occurrence was a daylight one and there was no question of mistaken identity ---F.I.R. was lodged without any delay and the accused was apprehended at the spot on the same day alongwith his weapon---Deceased was also medically examined on the same day and the accused had not challenged the time or place of occurrence--Presence of the injuries on the person of the accused, had further strengthened the case of the prosecution as doctor had stated that the injuries on the person of the accused could be the result of scuffle--­Prosecution, in circumstances, had proved its case against the accused' beyond any shadow of doubt---Accused had not challenged his conviction but had requested for reduction in sentence on the ground that motive of occurrence was trivial and he was behind the bars since his arrest in 1991---Reliable evidence had proved that occurrence had taken place inside the sitting room of the deceased---Accused could not take any benefit of the fact that he wanted to murder a person other than the deceased---Accused was armed with fire-arm and had caused murder of an innocent person--Normal penalty for Qatl-e-Amd was death and triviality of motive could not be made basis for reduction in sentence---In absence of any circumstance for reduction in sentence, the death sentence awarded to the accused was confirmed.

Muzaffar Saeed v. Aulad Hussain Shah alias Phul Peer and others 1990 SCMR 40; Iqbal alias Bhala v. The State 1994 SCMR 1; Abdul Ghafoor v. The State 2000 SCMR 919; Nawaz Ali and another v. The State 2001 SCMR 726 and Talib Hussain and others v. The State 1995 SCMR 1776 ref.

Ch. Muhammad Yaqoob Kung for Appellant.

Masood Sabir for the State.

Date of hearing: 7th August, 2001.

2002 P Cr. L J 228

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD ASLAM and another---Petitioners

versus

THE STATE---Respondent

Criminal Miscellaneous No.1635/B of 2001, decided on 15th August; 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.302/324/109---Bail, grant of---Accused had no previous history of his involvement in any criminal case---Not a single adjournment was sought on behalf of the accused, and all the adjournments were sought on behalf of the prosecution-­Prosecution witnesses were served, but they did not appear before the Court and prosecution evidence could not be recorded due to absence of prosecution witnesses---Attitude of the prosecution was such that it intended to keep the accused in jail without trial for as long a period as possible---Accused was admitted to bail on statutory ground.

Malik Abdul Qayyum Kamboh for Petitioners.

Safdar Nazir for the Complainant.

Muhammad Aslam Sumra for the State.

2002 P Cr. L J 237

[Lahore]

Before Muhammad Farrukh Mahmud, J

NAZAR MAHMOOD---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 1 in Criminal Appeal No.567 of 2001, decided on 21st August, 2001.

Criminal Procedure Code (V of 1898)---

----Ss. 426 & 561-A---Anti-Terrorism Act (XXVII of 1997), S.37--­Suspension of sentence---Accused who was convicted and sentenced to undergo one month's R.I. had filed appeal against his conviction and sentence and alongwith appeal had filed application for suspension of sentence---Whole process of filing the appeal in peculiar circumstances of the case, would be defeated in case the accused would remain behind the bars for the total period of the sentence awarded to him---Court allowed the application and suspended the sentence awarded to the accused and he was released on bail.

Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCMR 599 and Mst. Neelam Mawaz v. The State PLD 1991 SC 640 ref.

Ch. Faqir Muhammad for Petitioner.

Sh. Muhammad Raheem for the State.

2002 P Cr. L J 310

[Lahore]

Before Ali Nawaz Chowhan, J

ASIF ALI ZARDARI---Petitioner

versus

FEDERATION OF PAKISTAN and others---Respondents

Writ Petition No.3320 of 2001, decided on 30th November, 2001.

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

----S. 173---Report of Police Officer---Subsequent report--'Police has a right to submit a charge-sheet even after the submission of the final report and to conduct investigation as long as it was not based on mala fides.

Ch. Ataullah v. Ch. Mumtaz Ahmad Kahloon and 3 others 1973 PCr.LJ 69; Muhammad Akbar v. The State and another 1972 SCMR 335; Safia Begum v. S.H.O., Police Station Garh Mahraja, District Jhang and 3 others 1993 PCr.LJ 97; State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408; Muhammad Yousaf v. The State and others 2000 SCMR 453; Shahid Mehmood v. The State '1998 MLD 2094 and Aftab Ahmad v. Hassan Arshad and 10 others PI.D 1987 SC 13 ref.

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

----S. 18---Criminal Procedure Code (V of 1898), S.540---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Taking cognizance of third reference necessary before summoning witnesses---Third reference filed against the accused being supplementary to the previous references was in fact meant to place additional evidence before the Court on the same subject-matter which had been subsequently discovered from abroad and the delay in its filing had been explained with good reason---Court could not proceed further without taking cognizance on the basis of the fresh material in the supplementary reference---Statements of witnesses could have only been recorded by the Court after taking cognizance of the matter and passing an order to that effect which was not done---Even if no such objection had been taken by the accused, the Accountability Court had to follow the dictates of law itself and had to take cognizance of the case before passing an order summoning the witnesses under S.540, Cr.P.C.---Accountability Court was consequently, directed to take cognizance of the case as envisaged by law and through an illuminative order determine whether the evidence reflected in the third supplementary reference was necessary and then proceed to summon the witnesses having justified their summoning under S.540, Cr.P.C.---Constitutional petition was disposed of accordingly.

The State v. Zia-ur-Rehman and others PLD 1973 SC 49; Ch. Ataullah v. Ch. Mumtaz Ahmad Kahloon and 3 others 1973 PCr.LJ 69; Muhammad Akbar v. The State and another 1972 SCMR 335; Safia Begum v. S.H.O., Police Station Garh Mahraja, District Jhang and 3 others 1993 PCr.LJ 97; State through Advocate-General, Sindh v. Bashir and others PLD 1997 SC 408; Muhammad Yousaf v. The State and others 2000 SCMR 453; Shahid Mehmood v. The State 1998 MLD 2094 and Aftab Ahmad v. Hassan Arshad and 10 others PLD 1987 SC 13 ref.

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

----Ss. 173 & 190---When a charge-sheet/supplementary charge-­sheet/report is filed under S.173, Cr.P.C. it is incumbent upon a Court to advert to it, examine it and to take cognizance in the matter as envisaged by S.190, Cr.P.C. in the same way as it would take cognizance when a report under S.173, Cr.P.C. had been initially filed.

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

----S. 190---"Cognizance"---Connotation---Cognizance means the application of mind by the Trial Court with respect to the new facts unfolded before it and its ascertainment about the seriousness of the approach and the evidentiary value of such facts.

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

----S. 190---Taking of cognizance---Taking cognizance on every report submitted is essential for the ends of justice because on one hand the prosecution has been given the concession to lay before the Court the newly discovered evidence and other facts, but on the other hand this cannot be something to be taken for granted and has to, be subjected to a formal check before the parties and for a formal decision whether a further action was to be taken on the basis of the fresh report or reference---Such an exercise is called taking of cognizance.

(f) Words and phrases---

----"Cognizance"---Connotation.

Raja Muhammad Anwar, Farooq H. Naik and Raja Shafqat Abbasi for Petitioner.

Raja Muhammad Bashir, Prosecutor-General Accountability and Abdul Baseer Qureshi, Deputy Prosecutor-General Accountability for Respondents.

Date of hearing: 29th November, 2001.

2002 P Cr. L J 340

[Lahore]

Before Ali Nawaz Chowhan, J

Haji MEHBOOB KHAN and another---Petitioners

versus

THE STATE---Respondent

Criminal Revision No. 124 of 2001, heard on 24th September, 2001.

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

----Ss. 173(1) & 537---Report of Police Officer---Non-compliance of the provisions of S.173(1), Cr.P.C. renders cognizance of offence illegal and invalid and the defect is not curable under S.537, Cr.P.C.

Abdullah Shah v. State PLD 1962 Kar. 633 ref.

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

----Ss. 241-A & 173---Summoning of accused placed in Column No.2 of the challan---Magistrate taking cognizance of offence after submission of challan becomes seized of the entire case and seisin extends to persons ­who may appear implicated although placed in Column No.2 of the challan as the Court takes cognizance of the offence and not of an offender even if he is unknown--Even persons who may have been discharged under S.63, Cr.P.C. because of their placement in Column 2 of the challan can be resummoned---Court while summoning such type of witnesses, however, had to convince itself on the basis of the material which may be before it and which ought to be referred to for summoning the accused placed' in Column 2, because they have not been charge-­sheeted by the police---Evidence may be located in the challan itself which may have been misread by the police or it may be on the basis of evidence produced before the Court after submission of the challan--­Court cannot act mechanically to summon the accused placed in Column 2 of the challan---Once the Court discovers the incriminating material it can always summon such accused.

Raja Khushbakhtur Rehman and another v. The State 1985 SCMR 1314, Sardar Ali and others v. The State PLD 1966 (W.P.) Lah. 790; Falak Sher and another v. The State PLD 1967 SC 425, Mukhtar Ali and 3 others v. Sono and another PLD 1993 Kar. 342; Waqarul Haq alias Mithoo and another v. The State 1988 SCMR 1428; Khalid Iqbal v. The State 1991 PCr.LJ 443; Shaukat Ali and others v. The State 1995 PCr.LJ 1749 and Haji Muhammad Aslam v. The State 1986 PCr.LJ 1442 ref.

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

----Ss. 241-A, 173 & 439---Accused placed in Column 2 of the Challan summoned by Trial Court---Validity---Trial Court had summoned the accused placed in Column 2 of the report submitted under S.173, Cr.P.C.' mechanically without making any reference to incriminating material available against them and without justifying the said order---Impugned order was not sustainable and was set aside accordingly.

State v. Zulfiqar Ali Bhutto and others PLD 1978 Lah. 523; AIR 1930 Mad. 191; Abdullah Shah v. State PLD 1962 Kar. 633; Raja Khushbakhtur Rehman and another v. The State 1985 SCMR 1314; Sardar Ali and others v. The State PLD 1966 (W.P.) Lah. 790; Falak Sher and another v. The State PLD 1967 SC 425; Mukhtar Ali and 3 others v. Sono and another PLD 1993 Kar. 342; Waqarul Haq alias Mithoo and another v. The State 1988 SCMR 1428; Khalid Iqbal v. The State 1991 PCr.LJ 443; Shaukat Ali and others v. The State 1995 PCr.LJ 1749 and Haji Muhammad Aslam v. The State 1986 PCr.LJ 1442 ref.

Muharram Ali Abbasi for Petitioners.

Qazim Ahmad Naeem Qureshi, Federal Counsel for the State.

Date of hearing: 24th September, 2001.

2002 P Cr. L J 347

[Lahore]

Before Muhammad Farrukh Mahmud, J

SAIF ULLAH---Petitioner

versus

THE STATE---Respondent

Criminal Revision No. 178 of 2000, heard on 11th October, 2001.

Penal Code (XLV of 1860)---

----Ss. 334 & 337-X(1)---Appreciation of evidence---Statement of the injured witness was fully corroborated by other eye-witnesses as well as by medical evidence---Recovery of knife from the accused had also been proved during the trial---Conviction and sentence of accused were upheld in circumstances---Accused on serving out his sentence of imprisonment was directed to be released from jail on furnishing security equivalent to the amount of Arsh to the satisfaction of the Trial Court---If, however, accused did not pay the Arsh amount to the victim within three years as contemplated under S.337-X(1), P.P.C., he would be taken into custody and lodged in the jail till the payment of the requisite amount of Arsh.

Mian Arshad Latif for Petitioner.

Muhammad Anwar-ul-Haq for the State.

Malik Shabbir Ahmad Langerial for the Complainant

Date of hearing: 11th October, 2001.

2002 P Cr. L J 351

[Lahore]

Before Ali Nawaz Chowhan, J

SHUJAH TARIQ---Petitioner

versus

Messrs CHAUDHRY & COMPANY through Proprietor Muhammad Riaz

Chaudhry and 2 others---Respondents

Writ Petition No.200 of 2001, decided on 26th September, 2001.

Penal Code (XLV of 1860)---

----S. 408---Criminal Procedure Code (V of 1898), S.188---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Quashing of proceedings---Mandatory requirements of S.188, Cr.P.C. having not been met, the proceedings before the Magistrate were infirm--­Requirement of law having a rationale behind it was not in vain--­Objection regarding civil liability could always be taken once regular proceedings were pending before the Court against the accused--­Proceedings impugned being infirm, case against the accused could not proceed---Proceedings were quashed in circumstances and the Constitutional petition was accepted accordingly.

Khawas Habib and others v. Emperor AIR 1940 Pesh. 4; Muhammad Zaman v. Emperor AIR 1945 Oudh 231; Ram Charan and another v. King-Emperor AIR 1925 Lah. 185; Jamil Ahmad Qureshi v. Station House Officer, Police Station Sadar, Sialkot and another PLD 1980 Lah. 119; Abu Bakkar v. The State and another 1989 PCr.LJ 369 and Dilawar Hayat v. The State 1988 SCMR 337 ref.

Sardar Muhammad Ghazi for Petitioner.

Sajjad Hussain Shah, Asstt. A.-G. (on Court's call).

Shah Khawar for the Complainant.

2002 P Cr. L J 355

[Lahore]

Before Ijaz Ahmad Chaudhary, J

ABDUL GHAFOOR---Petitioner

versus

ANTI-CORRUPTION ESTABLISHMENT, LAHORE through Director and 6

others---Respondents

Writ Petition No. 17842 of 2001, decided on 2nd October, 2001.

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

----Art. 199---Constitutional petition---Quashing of F. I. R. ---Serious allegation had been levelled against the accused that he had acquired the properties of crores of rupees during his service as Police Inspector through corruption and by misusing his powers and authority as he had no other source of income except his salary---Accused though in earlier enquiries had been exonerated, but the same could not be made basis for the quashing of the F.I.R. which had also been registered on the basis of inquiry report prepared by the person who was competent to hold the inquiry, after following all the procedures under the Rules---Prima facie, as a result of the thorough inquiry the case against the accused had been found necessitating the registration of the F.I.R. which could not be quashed in a slipshod manner merely on the oral assertions of the accused---Thorough investigation was required in which, of course, accused would also be afforded equal opportunities to- prove his innocence and also explain the sources by which he had purchased the properties beyond his sources of income---Factual controversies were involved which could not be resolved without recording evidence---High Court could not resolve factual controversies in Constitutional jurisdiction and also could not assume the role of an Investigating Officer---No case for quashing of F.I.R. was made out---Constitutional petition was dismissed accordingly.

1994 SCMR 2142 ref.

(b) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction---Quashing of F.I.R.---High Court cannot resolve the factual controversies in Constitutional jurisdiction and also cannot assume the role of an Investigating Officer.

1994 SCMR 2142 ref.

Dr. A. Basit for Petitioner.

2002 P Cr. L J 366

[Lahore]

Before Mian Nazir Akhtar, J

QUTAB DIN---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous No.21/Q of 2001, heard on 26th October, 2001.

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

----S. 195(a)---Prosecution for contempt of lawful authority of public servants---" Public servant concerned"---Connotation---Public servant concerned is the one to whom false information was given with an intent to cause the said public servant to use his lawful power to the injury of another person.

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

----S. 182---Criminal Procedure Code (V 'of' 1898), Ss. 195(a) & 561-A---.Quashing of complaint---Accused had submitted application before the Inspector-General Police which on enquiry were found to be false---Inspector-General Police alone was, therefore, competent to make a complaint before the Magistrate for action against the accused under S.182, P.P.C., as contemplated under S.195, Cr.P.C.---Complaint had actually been made by the S.P. Discipline though approved by the D.I.-G. Police, but both of them were not competent to lodge the complaint and the S.H.O. in his turn was not competent to register the case under S.182, P.P.C. on the direction of the S.P. Discipline--­Impugned, complaint/Qalandra under 5.182, P.P.C. was consequently quashed leaving it open for the Competent Authority to make a fresh complaint in accordance with law.

Ali Ahmad v. The State 1984 PCr.LJ 772 and Abdul Hanan v. The State 1990 PCr.LJ 777 ref.

Rao M.I. Zafar Khan for Petitioner.

Imtiaz Ahmad Ch. for the State Counsel.

Date of hearing: 26th October, 2001.

2002 P Cr. L J 368

[Lahore]

Before Ijaz Ahmad Chaudhary, J

AMJAD SULTAN---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.630 of 1989, decided on 12th October, 2001.

Penal Code (XLV of 1860)--

--Ss. 302 & 324--Appreciation of evidence--Complainant could not show as to how he knew about the involvement of accused in the case--­Despite the position that the accused was not known to the complainant prior to the occurrence, police had not arranged for any identification parade for the identification of the accused---Accused had been involved by a supplementary statement which was not found in the case diary by the Trial Court---Statement of the complainant incorporated in the F.I.R. and his statement recorded at the trial were contradictory on material points---Complainant admittedly had got the F.I.R. registered on the instructions and directions of others to which no sanctity could be attached---Complainant (eye-witness) by his own conduct was not a truthful witness and could not be relied upon---Other eye-witness who claimed to have received injuries during the occurrence was also not worthy of credence as he could not explain his presence at the spot nor could show any reason as to why his statement under S.161, Cr.P.C. was not recorded by the police for two months---Said witness had concealed true facts and made a false statement---Medical evidence had contradicted the ocular account---Motive for the occurrence was not established--­Conduct of the Investigating Officer was not above board and the mala fides on the part of police could not be ruled out---Prosecution, thus, had failed to stand on its own legs---Accused was acquitted in circumstances.

Kh. Sultan Ahmad for Appellant.

Ms. Tasneem Amin for the State.

Date of hearing: 4th October, 2001.

2002 P Cr. L J 382

[Lahore]

Before Khalil-ur-Rehman Ramday, J

SHAHZAD ALI alias SHAHZADA---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No. 5164/B of 2001, decided on 30th October, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Juvenile Justice System Ordinance (XXII of 2000), S.10(7)-- Penal Code (XLV of 1860), S.395---Bail---Accused being a fairly well built and able-bodied young man could not be said to be a kind of child who could not have participated in the crime in question---Five persons, according to the F.I.R., had entered the house of the complainant in the dark hours , of the night being armed with fire-arms and had committed dacoity---Offence being serious and heinous one, concession available to the accused children through the provisions of S.10(7) of the Juvenile Justice System Ordinance, 2000 could not be extended to the present accused---Delay in criminal cases was per se of no consequence unless it could be established that it had been utilized to fabricate a false case--­Complainant prima facie had no motive or reason for false implication of accused in the case---Looted V.C.R., T.V., two silver bangles and a gun had been allegedly recovered from the accused---Defence counsel at such stage had prayed for permission to withdraw the bail application and the same was; dismissed as withdrawn accordingly.

Shahid Zaheer Syed for Petitioner.

Mian Shahid Amin for the State.

2002 P Cr. L J 384

[Lahore]

Before Ijaz Ahmad Chaudhary, J

ALTAF and 4 others---Appellants

versus

THE STATE---Respondent

Criminal Appeal No. 1140 of 1998, heard on 12th October, 2001.

Penal Code (XLV of 1860)---

----S. 302(b)---Appreciation of evidence---Conduct of eye-witnesses was unnatural and the story had been concocted in order to falsely implicate the accused in the case---Occurrence had not occasioned as stated by the eye-witnesses---Ocular testimony was contradictory on material points--­Eye-witnesses including the complainant were closely related to the deceased and had a motive for false implication of accused in the case--­Medical evidence did not corroborate ocular evidence---F.I.R. had been lodged with the delay of more than one day---Investigation in the case was not thoroughly made---Benefit of doubt was extended to accused in circumstances and 'they were acquitted accordingly.

Nazar Abbas Syed for Appellants.

Malik Muhammad Aslam for the State.

Ashfaq Ahmad Chaudhry for the State (at Court's call).

Date of hearing: 12th October, 2001.

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2002 P Cr. L J 400

[Lahore]

Before Ejaz Ahmad Chaudhary, J

ANWAR KHAN‑‑‑ Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.5678/B of 2001, decided on 29th October, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/324/109/148/149‑--Bail‑‑‑Accused was not present on the spot and he was not alleged to have caused any injury to the deceased or to any witness‑‑‑Allegation against accused was only that of abetment ‑‑‑Place and time of abetment and the names of the witnesses of abetment had not been mentioned in the F.I.R., which had been subsequently introduced through statements of some witnesses recorded under S.161, Cr.P.C.‑‑‑Case against accused required further inquiry as contemplated under S.497(2), Cr.P.C.‑‑‑Accused was 70 years of age and old age itself brings infirmity and charge against him could be determined at the time of trial‑‑‑Bail was allowed to accused in circumstances.

Malik Asrar Elahi for Petitioner.

Naseer‑ud‑Din Khan for the Complainant.

Saleem Shad for the State.

2002 P Cr. L J 401

[Lahore]

Before Khalil‑ur‑Rehman Ramday and Muhammad Asif Jan, JJ

ASGHAR ALI and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.87 and Murder Reference No.67 of 1995, heard on 18th April, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 309(1)‑‑‑Waiver (Afw) of Qisas in Qatl‑e‑Amd‑‑‑Effect‑‑‑Effect of grant of "Afw" by the heirs of the deceased is just the waiver of the right of Qisas and no more‑‑‑No provision in the Penal Code or any other law commands acquittal of accused on grant of "Afw" to him by the heirs of the deceased‑‑‑Section 309(1), P.P.C. prescribes only that once an adult sane Wali grants "Afw" then Qisas shall not be exacted.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 309(1)‑‑‑Criminal Procedure Code (V of 1898), Ss.345(2), 345(6) & 345(7)‑‑‑Compounding of offence‑‑‑Effect‑‑‑Acquittal is not an automatic consequence of the compounding of the offence of Qatl‑e‑Amd by the heirs of the deceased with the convict/accused person‑‑‑In the event of such a compromise the convict/accused can claim only non­exacting of the Qisas and he can be acquitted only if the Court permits the compounding of the offence in question.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 302(c) & 309(1)‑‑‑Criminal Procedure (V of 1898), Ss.345(2), 345(6) & 345(7)‑‑‑Compounding of offence‑‑‑Heirs of the deceased child had entered into a compromise with the accused and granted "Afw" to them in the name of Allah‑‑‑Accused had clubbed the innocent female child aged 4/5 years to death who had nine blunt weapon injuries on various parts of her body and had succumbed to the injuries within a few minutes at the very place of occurrence‑‑‑Murder was a callous and cold‑blooded one of an innocent child stemmed in an immoral and extra‑marital relationship of the two accused with each other and such a conduct on the part of the accused was a brutal and dastardly act‑‑‑Conscience revolted when one thought of showing any leniency or sympathy towards the accused responsible for the said act‑‑­High Court, therefore, refused to exercise its discretion in favour of the accused and withheld the permission for the compounding of the offence‑‑‑Punishment of Qisas in the present situation was riot applicable according to the Injunctions of Islam and the situation was covered by S.302(c), P.P.C.‑‑‑Conviction and sentence of accused under S.302, P.P.C. were consequently set aside and they were convicted under S.302(c), P.P.C. and sentenced to suffer 14 years' R.I. each in circumstances with benefit of the provisions of S.382‑B, Cr.P.C.

Abdul Sami Khan for Appellants.

Nemo for the State.

Date of hearing: 18th April, 2001

2002 P Cr. L J 408

[Lahore]

Before Ijaz Ahmad Chaudhary, J

Major NASIR MEHMOOD and another‑‑‑Petitioners

versus

THE STATE and 9 others‑‑‑Respondents

Writ Petition No. 17389 of 2001, decided on 2 October. 2001.

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

‑‑‑‑S. 10‑‑‑Penal Code (XLV of 1860), Ss.420/468/471/298‑C/198/193/ 477/419/109‑‑‑Criminal Procedure Code (V of 1898), S.403‑‑­Constitution of Pakistan (1973), Arts.1 3 & 199‑‑‑Constitutional petition‑‑‑Quashing of F. I. R.‑‑‑Documentary evidence was available on record to support the contention of lady accused that she had contracted marriage with her co‑accused‑‑‑Assertion of lady accused that she had become a Muslim was sufficient to treat her as a Muslim‑‑‑ Accused prima facie, were leading their matrimonial life according to Islamic rites and they were not committing any offence or even a sin‑‑‑Prosecution of accused under the criminal offence in such circumstances by the registration of the F.I,.R. was abuse of process of law and misuse of its authority by the police‑‑‑Complainant had also filed a criminal private complaint against the accused on the same allegations in which they had been summoned by the Trial Court‑‑‑Prosecution of accused could not be allowed twice, one by facing police investigation and the other by private complaint for the same offence at the same time‑‑ ‑Registration of impugned F I.R. on the face of it was with mala fide intention‑‑‑F. I. R. was quashed in circumstances.

1994 SCMR 2142 ref.

Mirza Kaleem Baig for Petitioners.

Rashid Murtaza Qureshi for Respondent No. 10.

2002 P Cr. L J 414

[Lahore]

Before Riaz Kayani and Bashir A. Mujahid, JJ

ABDUR RAZAQ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1606/B of 2001, decided on 12th April, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 302/324/427/148/149‑‑­Bail‑‑‑Accused, though present at the time of occurrence, did not participate in the firing made by the co‑accused as a result of which four persons were killed and one person was injured‑‑‑Question as to how far mere presence of accused on the spot could facilitate the other accused to kill the deceased was to be scrutinized and considered at the time of recording evidence by the Trial Court‑‑‑Case against accused being one of further inquiry bail was allowed to the accused in circumstances.

Shahryar Sheikh for Petitioner.

Mirza Masud Sadiq for the State.

Rana Habib‑ur‑Rehman for the Complainant.

2002 P Cr. L J 416

[Lahore]

Before Asif Saeed Khan Khosa and Muhammad Farrukh Mahmud, JJ

MUHAMMAD ISHAQ and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeals, Nos.15 and 17 of 1999, heard on 19th September, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302 & 324‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑­Appreciation of evidence‑‑‑Occurrence had taken place in broad daylight‑‑‑Accused had been nominated in the promptly lodged F.I.R with the role played by them during the occurrence‑‑‑Ocular evidence was worthy of implicit reliance and quite believable‑‑‑Defence evidence did not inspire confidence being an afterthought and having no support from independent material ‑‑‑Ocular account had found sufficient support from medical evidence which had clearly established the date and time of occurrence as well as the weapons used by the assailants‑‑‑Eye‑witnesses were present at a place from where they could clearly see the entire occurrence‑‑‑Motive was sectarian in nature which stood fully established‑‑‑One of the deceased persons had not died of the injury received by him during the occurrence, and he had died of natural causes, conviction and sentence of accused regarding the said deceased were set agide being not sustainable‑‑‑Two injured witnesses had also not appeared before the Trial Court as prosecution witnesses in the case, conviction and sentences of accused on these two counts were, therefore, also set­aside‑‑‑Rest of the convictions and sentences of accused were upheld in circumstances.

Manzoor and others v. The State and others 1992 SCMR .2037 ref.

Sahibzada Farooq Ali for Appellants (in Criminal Appeal No. 15 of 1999):

Sh. Muhammad Rahim for the State (in Criminal Appeal No.15 of 1999) and for Appellant (in Criminal Appeal No.17 of 1999) assisted by Muhammad Sarwar Bhatti, A.‑G.

Complainant in person.

Dates of hearing: 17th, 18th, and 19th September, 2001.

2002 P Cr. L J 432

[Lahore]

Before Muhammad Farrukh Mahmud, J

SHAUKAT HUSSAIN ‑‑‑Petitioner

versus

THE STATE and 4 others‑‑‑Respondents

Criminal Miscellaneous No.458/M converted into Criminal Revision No.364 of 2001, heard on 25th October, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 337‑H, 319 & 302‑‑‑Criminal Procedure Code (V of 1898), Ss.439 & 561‑A‑‑‑Appreciation of evidence‑‑‑Inherent powers of the High Court, exercise of‑‑‑Initially case against the accused was registered under S.337‑H, P.P.C. and subsequently during the investigation S.337‑H, P.P.C. was substituted for S.319, P.P.C.‑‑‑After submission of challan the Magistrate empowered under S.30, Cr.P.C., framed charge against the accused under S.319, P.P.C. and proceeded with the trial‑‑­Subsequently the Magistrate referred the case to the Court of Session as according to him .he had no jurisdiction to try the case‑‑‑On said reference. the Sessions Judge entrusted the case to Additional Sessions Judge who framed the charge against the accused under S.302, P.P.C. and proceeded with the case‑‑‑Application for sending the case to the Court of Magistrate Section 30, Cr.P.C. having been dismissed by the Additional Sessions Judge, the accused had filed petition under S.561‑A, Cr.P.C. which had been converted by the High Court into a revision‑‑­Courts below had failed to appreciate the fact that S.31S P.P.C which deals with the cases relating to Qatl‑e‑Khata, was art independent offence and had no nexus with S.302, P.P.C. which deals with cases relating to Qatl‑e‑Amd‑‑‑Magistrate who had enhanced powers to hear cases under S.30, Cr.P.C. would be competent to try all the cases which were not punishable with death‑‑‑Additional Sessions Judge lead wrongly charged the accused under S.302, P.P.C. as no material was available to attract the provisions of S.302; P.P.C.‑‑‑Orders passed by th8 Courts below were set aside with direction to send back the case to the Judicial Magistrate having powers under S.30, Cr.P.C. who would proceed with the case accordingly.

Muhammad Khalid Ashraf Khan for Petitioner.

Syed Altaf Hussain Shah Bokhari for the State.

Date of hearing: 25th October, 2001.

2002 P Cr. L J 440

[Lahore]

Before Asif Saeed Khan Khosa and Muhammad Farrukh Mahmud, J

NAZAR HUSSAIN ‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.3163‑B of 2001, decided on 7th January, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

---Ss. 497, 103, 59, 154 & 156(2)‑‑‑Control of Norcotic Substances Act (XXV of 1997), Ss.9(b), 21, 25, 761 29 & 51‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4‑‑-Bail‑‑‑Accused was allegedly apprehended red‑handed by the police party while in possession of Charas weighing 200 grams‑‑‑No background of bitterness or ill‑will between tree accused and the local police was shown so as to prompt the latter to falsely implicate the accused in the case‑‑‑Police officials in the cases recovery of contraband narcotics were as good and competent witnesses as public witnesses unless some animosity between them and the accused was established‑‑‑Section 25 of the Control of Narcotic Substances Act, 1997, had clearly excluded the application of 5.103, Cr.P.C. to the cases under the said Act‑‑‑For' all practical purposes the search, recovery, arrest and most of the remaining steps in the investigation were all conducted and taken at the spot in such cases by the same Police Officer and the investigation was practically aver and substantially completed before his return to the police station‑‑‑Acting of the Police Officer as raiding officer, complainant and Investigating Officer at one and the same time, therefore, was neither illegal nor improper because the same was not only natural but also probably the only practical course available in the circumstances of the case and his rank in the police' hierarchy in searching and arresting the accused was totally irrelevant to the legal validity of such a search and arrest‑‑‑Personality of the Police Officer was not divisible for the purposes of Ss.59 & 154, Cr.P.C., Arts.3 & 4 of the Prohibition (Enforcement of Hadd) Order, 1979 and S.9(b) of the Control of Narcotic Substances Act, 1997 and such a fictional divisibility did not depend merely upon the rank of such an officer in the police hierarchy‑‑‑Even if the said Police Officer was not competent or authorized to search and arrest the accused or conduct the investigation in the case still the actions taken by him might not stand vitiated as according to S.156(2), Cr.P.C. no proceedings of a Police Officer could be called in question on the ground that the case was one which such officer was not empowered to investigate‑‑‑Control of Narcotic Substances Act, 1997, had not provided a penalty for non‑observance of the provisions of S.21 thereof transforming an otherwise directory provision into a mandatory one and thus, such a defect in the search, arrest and investigation might be termed as only an irregularity and not an illegality vitiating the entire process‑‑‑Where two penal provisions were attracted to the same allegation against the accused i.e. S.9(b) of the Control of Narcotic Substances Act, 1997 and Arts.3 & 4 of 'the Prohibition (Enforcement of Hadd) Order, 1979, th4n the penal provision carrying a lesser punishment was to be applied, bust S.76 of the Control of Narcotic Substances Act, 1997 had given an over riding effect to the provisions of the said Act over anything contained in any other law for the time being in force and the case of the accused, therefore, could not be considered under Arts.3 & 4 of the Prohibition (Enforcement of Hadd Order, 1979 for the purposes of bail‑‑‑Law having not fixed any particular quantity of recovered narcotics to be sent as a sample for chemical analysis, bail could not be claimed on the ground that only a small quantity of the recovered Charas was sent as sample to the Chemical Examiner‑‑‑Even otherwise S.29 of the Control of Narcotic Substances Act, 1997, had required, a presumption to be raised in such a case regarding the allegation levelled against the accused to be true in its entirety and it was for the accused to rebut such an allegation ‑‑‑Non­receipt of the Chemical Examiner's Report regarding the sample of the substance allegedly recovered from the accused did not furnish any valid ground for bail in view of Ss.51 & 29 of the Control of Narcotic Substances Act, 1997‑‑‑Offence under S.9(b) of the Control of Narcotic Substances Act, 1997, no doubt, carried a sentence of less than ten years' imprisonment, but the prohibitory clause contained in S.497(1), Cr.P.C. was hardly relevant as S.51 of the Control of Narcotic Substances Act, 199.7, had its own prohibitory clause in respect of grant of bail‑‑‑No special circumstance was pointed out to drag the case of accused out of the said prohibitory clause‑‑‑Control of Narcotic Substances Act, 1997, is not an ordinary law .as the menace that it purports to curb is not commonplace and the criminals who indulge in it are' not of the normal type‑‑‑Mischief sought to be suppressed by this law is not just a crime against a human being but a crime against humanity and, therefore, a response to the same has to be aggressive and punitive rather than benign and curative‑‑‑An individual subjected to the rigours of this law may some times suffer disproportionately, but the greater good of the society emerging from its stringent application may make this approach worth its while‑‑‑Reasonable grounds, prima facie, did exist to believe the involvement of the accused in the offence alleged against him‑‑‑Bail was declined to accused in circumstances.

Rao Muhammad Jalees alias Jaloo v. The State 1990 PCr.LJ 26; Siddique alias Saddi v. The State 1995 PCr.LJ 1178; Muhammad Siddique v. The State 1996 PCr.LJ 1603; Zulfiqar Ali Shah v. The State 1995 PCr.LJ 1945; Fida Jan v. The State 2001 SCMR 36; Shahid Baloch v. The State 1998 PCr.LJ 1628; Akhtar Hussain Shah v. State 1999 PCr.LJ 225; Ghulam Ali v. The State 1996 PCr.LJ 608; Roze Muhammad Khan v. The State 1996 PCr.LJ 1059; Khalid Nawaz v. The State 1998 PCr.LJ 2008; Nasrullah v. The State PLD 2001 Pesh. 152; The State v. Muhammad Hussain PLD 1968 SC 265; Noorul Islam v. The State 1986 SCMR 1836; State through Advocate‑General, Sindh v. Bashir and others PLI) 1997 SC 408; The State v. Sohail Ahmad and others PLD 1990 FSC 29; State through Director‑General, Pakistan Coast Guards, Turbat v. Sabro and another 1992 PCr.LJ 1795; Zubair alias Nana v. The State 1992 PCr.LJ 2127; Ghani‑ur‑Rehman v. The State 1996 PCr.LJ 347; Muhammad Afzal v. The State 1998 PCr.LJ 955: Naveed Ahmad Khan v. The State 1999 PCr.LJ 63; Khalil‑ur‑Rehman v. The State 1998 PCr.LJ 1625; Hazrat Ali khan v. The State 1989 MLD 3246; Mst. Nasira Bibi v. The State PLD 1998 Lah. 146; Nazan Shah v. The State 1998 PCr.LJ 1540 and Khalil Ahmed v. The State PLJ 2001 Cr.C. (Lahore) 1312 ref.

Syed Shahbaz Ali Rizvi for Petitioner.

Muhammad Rafique Rajput for the State.

Date of hearing: 7th January, 2002.

2002 P Cr. L J 453

[Lahore]

Before Ijaz Ahmad Chaudhry, J

Rao TALIB HUSSAIN‑‑‑Petitioner

versus

THE STATE and another‑‑‑Respondents

Writ Petition No. 19350 of 2001, heard on 22nd November, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 409/109‑‑‑Crimina: Procedure Code (V of 1898), S.403‑‑­Constitution of Pakistan (1973), Arts.13 & 199‑‑‑Constitutional petition‑‑‑Principle of double jeopardy‑‑‑Applicability of‑‑‑Accused who faced the trial in the case had been acquitted‑‑‑State had not filed any appeal or revision against the acquittal of the accused‑‑‑Judgment to the extent of acquittal of the accused which had attained finality was still in field‑‑‑Judgment of the Trial Court though had been set aside in appeal filed by the co‑accused, but the judgment of the Appellate Court would have the effect only to the extent of the co‑accused and would not affect the acquittal of the accused as that matter was not thrashed out by the Appellate Court‑‑‑Re‑summoning of the accused was hit by the principle of double jeopardy and was covered by S.403, Cr.P.C.‑‑‑Accused could not be tried for the same offence again‑‑‑Order whereby ,the accuse was summoned, was set aside.

Zahid Hussain Khan for Petitioner.

Ch. Muhammad Hanif Khatana, Addl. A.‑G. for the State.

Date of hearing: 22nd November, 2001.

2002 P Cr. L J 463

[Lahore]

Before Ali Nawaz Chowhan and Tanvir Bashir Ansari, JJ

TABEER AHMAD and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.42 of 2000, heard on 22nd November, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑‑S. 302(b)/34‑‑‑Appreciation of evidence‑‑‑Specific motive attributed to accused in pursuance of which he had committed the murder of the deceased was to avenge his dishonour and same had been proved‑‑­Lalkara "that the deceased would be taught a lesson for causing insult" had been raised by the accused‑‑‑Vehicle in which the deceased had been abducted belonged to accused and seven crime empties of the rifle with which the accused was armed were also recovered from the said vehicle‑­‑Said rifle had been .recovered on the pointation of accused‑‑‑Conviction and sentence of death awarded to accused by Trial Court were confirmed in circumstances‑‑‑Case of co‑accused could not be treated differently from the case of acquitted co‑accused and he was acquitted accordingly following the rule of consistency.

Muhammad Sharif v. The State 1997 SCMR 866; Saif Ullah Khan and 5 others v. The State 1986 PCr.LJ 2794; Mehmood Ahmed and 3 others v. The State 1995 SCMR 127 and Sami Ullah Tariq v. The State 2000 PCr.LJ 1305 ref.

Malik Rabnawaz Noon for Appellants.

Syed Sajjad Hussain Shah, Asstt. A.‑G. (on Court's call).

Sher Zaman Bhatti for the State.

Date of hearing: 22nd November, 2001.

2002 P Cr. L J 471

[Lahore]

Before Sheikh Abdur Razzaq and Basbir A. Mujahid, JJ

SAJJAD alias LOHA‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.995 of 1996, Murder Reference No.25 and Criminal Appeal No.68 of 1997, heard on 15th October, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302, 324/34 & 323/34‑‑‑Appreciation of evidence-‑‑Accused had committed the murder of the deceased by repeating fire shots on his person which showed his callousness in the commission of the offence‑‑­Deceased being absolutely unarmed at the relevant time, question of firing at him under the garb of plea of self‑defence was devoid of any force‑‑‑No mitigating circumstance warranting lesser punishment was available in favour of accused‑‑‑Convictions and sentences including the sentence of death awarded to accused by Trial Court were maintained in circumstances.

Rashid Murtaza Qureshi for Appellant.

Mrs. Sadiqa Altaf Khan for the State.

Rana Muhammad Zahid Khan for the Complainant.

Date of hearing: 15th October, 2001.

2002 P Cr. L J 480

[Lahore]

Before Ali Nawaz Chowhan, J

MUHAMMAD AKRAM‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.1238/B of 2001, decide don 14th December, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/201/34‑‑‑Bail‑‑­Prosecution version that the deceased was called by the accused and his conspiratorial co‑accused before he was don‑‑ to death, was yet to be established‑‑‑In the alternative, prosecution had also to establish as to what was the justification of the deceased to be present at the house of the, complainant's side at that hour of the night‑‑‑In the absence of such justification it would have to be seen as to what offence had been committed by the accused and what would be its punishment in case the defence story ultimately succeeded‑‑‑Case against accused, thus, needed further inquiry‑‑‑Accused was admitted to bail in circumstances.

1994 PCr.LJ 924; 1994 PCr.LJ 1020; 1994 SCMR1728; 1992 SCMR 600; 1993 SCMR 2288; PLD 1996 SC 795; PLD 1997 Lah. 200; 1993 SCMR 208; PLD 1994 SC 679 and PLD 1992 SC 287 ref.

Malik Rabnawaz Noon for Petitioner.

Muhammad Ilyas Siddiqi for the Complainant. .

2002 P Cr. L J 484

[Lahore]

Before Sheikh Abdur Razzaq and Bashir A. Mujahid, JJ

Rana FAZALADEER‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.356 of 1986, heard on 23rd October, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 409 & 467‑‑‑Appreciation of evidence‑‑‑Sentence‑‑‑Conviction of accused under S.409, P.P.C. in another appeal was altered to one under S.408, P.P.C. and his sentence was reduced to the imprisonment already undergone by him with reduction in fine‑‑‑Facts and circumstances of the present appeal were almost same and the case of the present accused was also at par with that of the accused in the other appeal‑‑‑High Court following the same principle also altered the conviction of accused from S.409, P.P.C. to S.408, P.P.C. and reduced his sentence to the period already served by him‑‑‑Similarly sentence of accused under 5.467, P.P.C. was also reduced to the period already undergone by him‑‑­Sentence of fine of accused on each count was also reduced‑‑‑Appeal was disposed of accordingly.

S.M. Latif Khan Khosa for Appellant.

D.A.‑G. for the State.

Date of hearing: 23rd October, 2001.

2002 P Cr. L J 488

[Lahore]

Before Sheikh Abdur Razzaq and Bashir A. Mujahid, JJ

SARDAR ALI ‑‑‑Appellant

versus

THE STATE‑‑‑ Respondent

Criminal Appeal No. 1052 of 1996 and Murder Reference No.28 of 1997, heard on 8th October, 2001.

Penal Code (XLV of 1860)‑‑-

‑‑‑‑Ss. 302(b) & 449‑‑‑Appreciation of evidence‑‑‑Motive as asserted by prosecution stood established from the very cross‑examination of the prosecution witness‑‑‑Evidence of recovery had corroborated the medical evidence‑‑‑Eye‑witnesses had stood the test of cross‑examination and categorically deposed that the accused had caused the murder of the deceased‑‑‑Even the statement of the Court witness had proved beyond any doubt that it was the accused who had committed the murder of the deceased‑‑‑Conviction and sentence of accused were upheld in circumstances‑‑‑Sentence of fine was, however, set aside being not warranted by law.

Kh. Sultan Ahmed for Appellant.

Mian Zaffar Ahmed Khan and Sh. Shafique Ahmed for the Complainant.

Miss Tasnim Amin for the State.

Date of hearing: 8th October, 2001.

2002 P Cr. L J 496

[Lahore]

Before Sheikh Abdur Razzaq and Bashir A. Mujahid, JJ

ABDUL RAZZAQ‑‑‑Appellant

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No. 189 of 1996, heard on 10th October, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Criminal Procedure Code (V of 1898), S.417(2‑A)‑‑‑Appeal against acquittal‑‑‑Delay of 30 hours in lodging the complaint had led to the irresistible conclusion that the time had been consumed in fabricating the case against the accused‑‑‑Evidence of motive had rightly been disbelieved by Trial Court‑‑‑Crime empties secured from the place of occurrence had been sent to the Ballistic Expert after the recovery of the pistol from the accused which had made the evidence of recovery doubtful‑‑‑Despite the incident having taken place in the "Bazaar" none from the adjacent shops had been either cited or examined in the case by the prosecution, which had also cast doubt on the veracity of the prosecution version‑‑‑Impugned judgment of acquittal did not suffer from any illegality or perversity warranting interference by High Court‑‑­Appeal was dismissed accordingly.

Yar Muhammad and 3 others v. The State 1992 SCMR 96 and Mian Said Baghdad v. Said Mian 1983 SCMR 117 ref.

Khawaja Sultan Ahmed for Appellant.

S.M. Idrees for Respondent No.2.

Syed Mukhtar Sherazi for the State.

Date of hearing: 10th October, 2001.

2002 P Cr. L J 503

[Lahore]

Before Sheikh Abdur Razzaq and Bashir A. Mujahid, JJ

IJAZ AHMAD‑‑‑Appellant

versus

THE STATE ‑‑‑Respondent

Criminal Appeal No. 13 of 1.996, heard on 9th October, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(c)‑‑‑Appreciation of evidence‑‑‑Plea of grave and sudden provocation‑‑‑Motive behind the occurrence as disclosed by the complainant in the F.I.R. was that the accused suspected the deceased for having illicit relations with his wife‑‑‑Accused had admitted to have killed the deceased under the impulse of grave and sudden provocation on having seen him in an objectionable condition with his wife‑‑‑Trial Court had rightly relied upon the statement of accused recorded under S.342, Cr.P.C.‑‑‑Accused had not only explained the injuries on the person of the deceased but had also explained the injuries suffered by his wife which stood corroborated by medical evidence‑‑‑Conviction of accused under S.302(c), P.P.C. and sentence of five years' R.I. awarded to him by Trial Court thereunder were upheld in circumstances.

Ali Muhammad and others. v. The State PLD 1996 SC 274; Saeed Ahmad v. The State 1996 PCr.LJ 1016 and Muhammad Ashfaq alias Barq v. The State 1998 PCr.LJ 1110 ref.

Khawaja Sultan Ahmad for Appellant.

Mirza Masood Sadiq for the State.

Malik Muhammad Qasim Joya for the Complainant

Date of hearing: 9th October, 2001.

2002 P Cr. L J 513

[Lahore]

Before Ijaz Ahmad Chaudhary, J

MUHAMMAD BASHIR‑‑‑Petitioner

versus

FAZAL HUSSAIN and 2 others‑‑‑Respondents

Criminal Miscellaneous No.1486/M of 2001, heard on 11th October, 2001.

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

‑‑‑‑Ss. 439‑A, 439(5) & 417(2)‑‑‑Revision petition before Sessions Court‑‑‑Maintainability‑‑‑No revision petition is competent before the Sessions Court against an order which is challengeable in appeal under S.417(2), Cr.P.C.

Nasir Khan and another v. The State 1991 PCr.LJ 19; Ghulam Muhammad v. Additional Sessions Judge and 3 others 1998 MLD 1605; Abdul Majeed and 4. others v. Messrs H. Ghulam Muhammad & Brothers Ltd. and another 1995 PCr.LJ 1369; Muhammad Safdar and 4 others v. The State and another PLD 1996 Lah. 457; Abdullah Jan Khan v. Saifur Rehman Khan and others NLR 1997 Crl. 607 and Muhammad Yasin.v. Muhammad Hanif 1997 PCr.LJ 1626 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 420/465/467/468/471/109‑‑‑Criminal Procedure Code (V of 1898), Ss.439‑A, 439(5), 417(2) & 561‑A‑‑‑Quashing of order‑‑‑Accused had been acquitted by the Magistrate in the complaint case under S.249‑A, Cr.P.C.‑‑‑Complainant had the remedy of filing an appeal against the said order of acquittal under S.417(2), Cr.P.C.‑‑‑Revision petition before the Sessions Court filed by the complainant was, therefore, not competent and the impugned order passed thereon was illegal and unlawful‑‑‑Civil litigation was going on between the parties on the same subject‑‑‑Possibility could not be ruled out that the complainant had filed the private complaint with mala fide intention and ulterior motive to pressurize the accused and retain him from pressing his case to the Civil Court independently‑-‑Pendency of the private complaint in circumstances being abuse of the process of law could not be allowed to continue‑‑‑Impugned order passed by Sessions Court was consequently set aside.

Nasir Khan and another v. The State 1991 PCr.LJ 19; Ghulam Muhammad v. Additional Sessions Judge and 3 others 1998 MLD 1605; Abdul Majeed and 4 others v. Messrs H. Ghulam Muhammad & Brothers Ltd. and another 1995 PCr.LJ 1369; Muhammad Safdar and 4 others v. The State and another PLD 1996 Lah. 457; Abdullah Jan Khan v. Saifur Rehman Khan and others NLR 1997 Crl. 607; Muhammad Yasin v. Muhammad Hanif 1997 PCr.LJ 1626 and A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353 ref.

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

‑‑‑S. 561‑A‑‑‑Abuse of the process of Court‑‑‑Where Civil Court has taken the cognizance and is deciding the same issue, filing of the private complaint and pendency of the same before the Trial Court is abuse of process of law‑‑‑Proceedings before the Trial Court, in circumstances, shall be stayed till the final disposal of the civil suit.

A. Habib Ahnled v. M.K.G. Scott Christian and 5 others PLD 1992 SC 353 ref.

Muhammad Ayub and Miss Gulzar Butt for Petitioner.

Saleem Akram Chaudhry for Respondent No. 1.

Muhammad Jahangir Wahla, A.A.‑G. for the State.

Date of hearing; 11th October, 2001.

2002 P Cr. L J 525

[Lahore]

Before Muhammad Farrukh Mahmud, J

MUHAMMAD JAVED and 13 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2589/B of 2001, decided on 13th November, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.324/337‑H(ii)/144/149‑‑‑Pre­arrest bail, confirmation of‑‑‑Accused persons had joined the investigation and during the investigation nothing had been recovered from them‑‑‑No coercive measures should be adopted for effecting the recovery and the police could not be allowed to adopt third degree methods for creating evidence‑‑-Lalkara had been attributed to one who was not the petitioner/accused before the Court‑‑‑Medical report ‑had clearly shown that there was no intention to cause death of any person‑‑‑Very large number of persons had been involved in the case and the only allegation against the accused was that after the occurrence they fired in the, air‑‑‑Arrest of the accused, in circumstances, would be unjustified‑‑­Ad interim bail granted to the accused, was confirmed in circumstances.

Miran Bukhsh v. State PLD‑1989 SC 347 ref.

Muhammad Arif Alvi for Petitioners.

Khalid Ashraf Khan for the Complainant. .

Tanveer Ahmad Buzdai for the State

2002 P Cr. L 530

[Lahore]

Before Muhammad Akhtar Shabbir, J

Mst. RIAZ BIBI‑‑‑Petitioner

versus

S.H.O., POLICE STATION, ZAHIRPIR‑‑‑Respondent

Writ Petition No.2729 of 2001/BWP, heard on 8th June, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 431, 486, 188,148/149/341 & 506‑A‑-‑West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S.16‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Quashing of F:I.R.‑‑‑Accused persons had been agitating .oh road against death of a person in police custody‑‑‑Burning of tyres on road would not mean that road was blocked or vehicles had been restrained or stopped by the agitators‑‑‑Accused were protesting in peaceful manner‑‑‑Complainant had not stated in F.I.R. that accused had taken law in their hands‑‑‑No loss or damage was caused to vehicles or police official‑‑‑Gathering was of 25 poor and illiterate .simpleton persons who could weep and could not violate law ‑‑‑F.I.R. against such persons was ordered to be quashed.

(b) Penal Code (XLV of 1860)‑‑-

‑‑‑Ss. 341 /431, 186, 188, 148/ 149 & 506‑‑‑"Obstruction" Defined‑‑‑Obstruction would mean a positive act to interrupt public servant from carrying on his public duties-‑‑Obstruction is physical obstruction and mere threat would riot amount to obstruction‑‑­Obstruction must be followed by overt act preventing a public servant from executing his duties.

Emperor v. Babulal Munilal AIR 1936 Nag. 86 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 186/341, 148/149/341/431 & 506‑‑‑West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S.16‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Quashing of F.I.R.‑‑‑Merely mentioning in the F.I.R. that protestors had threatened for dire consequences was not sufficient to constitute an offence under Ss; 186 & 341, P.P.C.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 431, 148/149/341/186/188 & 506‑‑‑West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S.16‑‑‑Mischief‑‑‑To prove mischief under S.431, P.P.C. it was necessary to establish that mischief was committed, there must be evidence of intention to cause wrongful loss or damage or knowledge of wrongful loss or damage likely to be caused.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 503 West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S.16‑‑‑Criminal intimidation‑‑‑Threat to another person with any injury to his person, reputation or property meant that threat should be of an illegal act unless it was to cause a person to do I any act which he was not legally bound to do or omit to do any act' which that person was legally bound.

Darya Khan and 3 other v The State 1988 PCr.LJ 1560 ref.

(f) Penal Code (XLV of 1860)‑--

‑‑‑‑Ss. 148/ 149/341. 431, 186/ 189 & 506‑‑‑West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S.16‑‑‑Mens rea‑‑‑No evidence was available with police that accused persons actually intended to commit the offence‑‑‑Protesters were aggrieved on account of murder of a person in police custody for whose death no person in authority had taken notice of‑‑‑No offence could be constituted if mens rea in commission of offence was not proved.

(g) Criminal trial‑‑‑

‑‑‑‑ Mens rea‑‑‑No offence could be constituted if mens rea in commission of offence was not proved.

M. Abdul Rasheed Rashid for Petitioner

Mian Muhammad Bashir, A.A.‑G. for Respondent.

Date of hearing: 8th June, 2001.

2002 P Cr. L J 538

[Lahore]

Before Sheikh Abdur Razzaq and Bashir A. Mujahid, JJ

SARFRAZ alias SAFU and others‑‑‑Appellants

versus

THE STATE ‑‑‑ Respondent

Criminal Appeal No.763 of 1996 and Murder Reference No.118 of 1997, heard on 13th November, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Material contradictions were found in statements of witnesses‑‑‑Ocular account and medical evidence led to believe that occurrence was not witnessed by complainant or the eye‑witnesses‑‑‑Incident being an unwitnessed occurrence and prosecution failed to prove its case beyond any doubt, accused were acquitted in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Recovery‑‑‑Recovery of weapons of offence had rightly not been relied upon by Trial Court as the same was immaterial in absence of recovery of any empty from the spot‑‑‑Accused were acquitted in circumstances.

S.M. Latif Khan Khosa for Appellants.

Malik Muhammad Jehangir for A.‑G. for the State.

Date of hearing: 13th November, 2001.

2002 P Cr. L J 551

[Lahore]

Before Zafar Pasha Chaudhary and Mian Muhammad Jehangir, JJ

FAIZ RASOOL alias FAISAL alias FAIZI---Appellant

versus

THE STATE---Respondent

CriminalAppealsNos. 117,118,120,Murder Reference

No.12/T and Criminal Revision No.125 of 1999, heard on 10th October, 2001.

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

----Ss. 302/427/436---Anti-Terrorism Act (XXVII of 1997), S.7--­Qanun-e-Shahadat (10 of 1984), Art-71 ---Appreciation of evidence--­Hearsay witness---Statements of two defence witnesses from press stating that earlier version which came to their knowledge was different from the one which was set up subsequently bi- the prosecution were nothing more than hearsay- as such were not 'admissible in evidence.

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

----Ss. 302/427/436---Anti-Terrorism Act (XXVII of 1997), S.7--­Appreciation of evidence---Motive---Apparently motive seemed to be improbable or inconsistent---Motive analysed and viewed from different angles no more remained absurd and disjuncted with ultimate crime---Accused had not fully refused motive rather explanation tendered by him supported or confirmed the motive as set up by the prosecution---Burns on the persons of accused, the clothes having black spots coupled with smell of petrol and all these factors supported by last seen evidence and absence of any other cause of fire in the house except one furnished by the prosecution, led to one conclusion that prosecution had successfully proved guilt of the accused---Sentence and conviction recorded by the Trial Court were upheld by the High Court in the circumstances

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

----Ss. 302/427/436---Anti-Terrorism Act (XXVII of 1997), S.7--­Appreciation of evidence---Presence of eye-witnesses at the site of occurrence at odd hours at night though looked improbable but same could not be said to be impossible---Even if eye-witnesses were treated as chance witnesses their statements could be relied upon, if corroborated with some other material part of evidence.

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

----Ss. 302/427/436---Anti-Terrorism Act (XXVII of 1997), S.7--­Appreciation of evidence---Conduct of accused is always material to determine hi; guilt.

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

----Ss. 302/427/436---Anti-Terrorism Act (XXVII of 1997), S.7--­Appreciation _of evidence---Presumption---Main evidence against accused was his confessional statement---If confessional statement was accepted in toto, same may give rise to presumption that accused should have sensed some foul play but to burden him with the responsibility that he was an accomplice with his co-accused and that he was aware of the fact that petrol had been procured to set the house on fire would rather be too presumptive---Presumption or suspicion how strong it 'might be could not be treated as a substitute of evidence.

Ghulam Nabi Bhatti and Najam-ul-Hassan for Appellant (in Criminal Appeals Nos. 118 and 120 of 1999).

Ch. Ishfaq Ahmad for the State.

Afzal Siddiqui for the Complainant.

Date of hearing 10th October, 2001.

2002 P Cr. L J 582

[Lahore]

More Muhammad Farrukh Mahmud, J

NAZAR ABBAS ‑‑‑ Petitioner

Versus

NAZOO and others‑‑‑Respondents

Criminal Procedure No. 105/CB of 2001, decided on 24th October, Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 497(5) & 498‑‑‑Penal Code (XLV of 1860), Ss.337‑A(ii)/34‑‑­Petition for cancellation of pre‑arrest bail‑‑‑Accused had joined the investigation and a Sota had been recovered from his possession‑‑‑Injury attributed to the accused had been declared "Shajjah‑i‑Mudihah" under S.337‑A(ii), P.P.C. which was punishable up to five years maximum‑‑‑Cross‑version was also registered about the same occurrence, but it was subsequently, found to be false during investigation‑‑‑Medical examination of the injured ladies was conducted under supervision of police on the same day of occurrence, but said injuries had not been mentioned in the F.I.R. at all‑‑‑Provision of S.337‑A(ii), P.P.C. did not fall within the prohibitory clause of S.497, Cr.P.C. and it would not be in the interest of justice to send the accused behind the bars, only on technical grounds and he was likely to be released on bail soon after his arrest.

Ch. Faqir Muhammad for Petitioner.

Mian Muhammad Akram for Respondents Nos. 1 to 4.

Muhammad Aslam Somra for the State.

2002 P Cr. L J 584

[Lahore]

Before Zafar Pasha Chaudhary, J

ZULFIQAR and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.278 of 1998, heard on 30th November, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 458, 336/34 & 336/109‑‑‑Appreciation of evidence‑‑‑Statement of the injured girl who had no enmity or motive for false implication of accused had not only been supported by her sister but also by medical evidence‑‑‑Nothing had come on record as to why the victim girl would falsely involve the accused in the case and substitute Wm by sparing the real culprit‑‑‑Burns received by the accused on his right hand had also linked him with the offence of throwing acid on the face and body of the said injured witness on her showing resistance to his attempt to rape her‑‑Possibility of the said motive being true could not be ruled out‑‑­Convictions and sentences of accused were upheld in circumstances‑‑­Participation of the two co‑accused in the commission of the offence, who were real brother and aunt of the accused, however, was not free from doubt and they were acquitted accordingly.

Rana Mashhood Ahmad Khan for Appellants.

S. D. Qureshi for the State.

Date of hearing: 30th November, 2001.

2002 P Cr. L J 598

[Lahore]

Before Muhammad Farrukh Mahmud, J

Mst. FARZANA MAI ‑‑‑Petitioner

versus

STATE and others‑‑‑Respondents

No. 123/CB of 2001, decided on 23rd October, 001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 497(5) & 498‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss.10/11‑‑‑Petition for cancellation of pre­-arrest bail‑‑‑Petitioner/complainant had admitted her thumb‑marking the blank papers at various places‑‑‑Blank papers could not include Nikahnama because it was on a printed form ‑‑‑Nikahnama had been produced before the police during investigation and had also been shown to the Court during the arguments ‑‑‑Nikahnama showed that the marriage of the complainant had taken place on the date mentioned ‑‑‑Story that the complainant was abducted after said date was knocked out from that fact‑‑‑Brother of the complainant could not prove that the complainant was previously married to another person and he, in order to get a case registered, had fabricated a previous Nikahnama‑‑‑Accused had also filed a suit for restitution of conjugal rights against the petitioner/ complainant and he was stuck to his marriage with the complainant‑‑­Medico‑legal examination certificate had neither shown that the complainant had not attained puberty nor it had shown any mark of violence on her person ‑‑‑Factum of Nikah of the complainant with the accused, prima facie having ruled out the criminality, the arrest of the accused would be unjustified‑‑‑Petition for cancellation of bail, was dismissed, in circumstances.

Murad Khan v. Fazal Subhan PLD 1983 SC 82 ref.

Mian Riaz Hussain for Petitioner.

Syed Fazal‑ud‑Din Gillani for Respondent No.2.

Muhammad Ibraheem Farooq for the State.

2002 P Cr. L J 614

[Lahore]

Before Tanvir Bashir Ansari, J

MAZHAR HUSSAIN ‑‑‑ Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revisions Nos:64 and 132 of 2001, decided on 19th November, 2001.

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

‑‑‑‑S. 540‑‑‑Power to summon material witness‑‑‑Object and scope‑‑­ Power under S.540, Cr.P.C. is not subject to any condition and can be exercised whether or not a person is cited as a witness in the challan‑‑­ The only requirement for invocation of S.540, Cr.P.C, is that such person should be a material witness and his evidence should be essential for just decision of the case‑‑‑Object of S.540, Cr.P.C. is intended to enable the Court to get at the truth and to arrive at a just decision‑‑‑Such power must not be used as a vehicle of exploitation, by which one party may detain an illegal advantage over the other party and it must be exercised in accord with the provisions of the Code of Criminal Procedure and general principles of criminal Law.

Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95 and Painda Gul and others v. The State 1987 SCMR 886 ref.

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

‑‑‑‑S. 540‑‑‑Summoning of material witness‑‑‑Status of witness, determination of‑‑‑Line of distinction between a witness for the prosecution or of defence on the one hand and a Court‑witness on the other may sometimes be very thin‑‑‑In order to determine the status of, a witness the entire attending circumstances have to be kept in view.

(c) Penal Code (XLV of 1860)—­

‑‑‑‑S. 302/34‑‑‑Criminal Procedure Code (V of 1898), Ss.540 & 439‑‑­ Trial Court had rightly exercised its jurisdiction to summon the Medical Officer as a Court‑witness who had already made his statement in examination‑in‑chief‑‑‑Prosecution, according to the principles of criminal administration of justice was. duty bound to prove its own version and to discredit the version of the accused‑‑‑Police had got the accused medically examined and placed the medico‑legal report on the record‑‑ ‑Prosecution was to put questions to the Court‑witness first and if any incriminating circumstance against the accused emerged therefrom, the accused might then cross‑examine the Court‑witness‑‑‑Finding of the Trial Court that the accused must cross‑examine the Court‑witness first whereafter the prosecution would conduct the said exercise, therefore, was not correct‑‑‑Impugned order passed by Trial Court was consequently set aside accordingly.

Muhammad Akhtar v. The State 1971 PCr.LJ 1081; Muhammad Azam v. Muhammad Iqbal and others PLD 1984 SC 95; Muhammad Hussain and 2 others v. The State 1,970 PCr.LJ 1330; Muhammad Iqbal Khetana v. The State 1992 MLD 930; Abdul Salam v. The State 2000 SCMR 102 and Painda Gul and others v. The State 1987 SCMR 886 ref.

Sardar Muhammad Ishaque Khan for Petitioner.

Malik Rab Nawaz Noon for the Complainant.

Date of hearing: 19th November, 2001.

2002 P Cr. L J 629

[Lahore]

Before Khalil‑ur‑Rehman Ramday and Ijaz Ahmad Chaudhry, JJ

AHMAD HASSAN and 2 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.409 of 2000, decided on 7th May, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 265‑C(1)(c) & 439‑‑‑Penal Code (XLV of 1860), Ss.302/148/ 149‑‑‑Non‑supply of the copies of the statements of some persons recorded under 5.161, Cr.P.C. to the accused by Trial Court‑‑‑Validity‑‑‑Persons referred to a "witnesses" in the provisions of 5.265‑C (1)(c), Cr.P.C. are the persons who are called by the prosecution as its "witnesses" at a given trial and it is only the copies of the statements of the said persons which are required to be supplied to the accused persons and the persons whose statements . had been recorded by an Investigating Officer under S.161, Cr.P.C. and who are not called by the prosecution as its witnesses at the trial do not fall within the ambit of the said provisions of S.265‑C(1)(c), Cr.P.C.

PLD 1966 W.P. (B.J.) 30; 1980 PCr.LJ 5; 1985 PCr.LJ 388; PLD 1979 SC 53; PLD 1987 Lah. 245; 1999 PCr.LJ 496; 1998 Law Notes (Lahore) 868; AIR 1957 Mad. 508; 1998 PCr.LJ 1795 and AIR 1960 Bom. 476 ref.

Asif Mehmood Chughtai for Petitioners.

Nemo for the State.

Date of hearing: 7th May, 2001.

2002 P Cr. L J 633

[Lahore]

Before Ali Nawaz Chowhan, J

MUHAMMAD AKRAM‑‑‑Petitioner

Versus

MUHAMMAD HALEEM‑‑‑Respondent

Criminal Revision No.73 of 2001, decided on 16th January, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/364/109‑‑‑Juvenile Justice System Ordinance (XXII of 2000), S.7‑‑‑Criminal Procedure Code (V of 1898), S.439‑Trial Court while holding the accused below the age of 18 years at the time of occurrence had relied on the certificate under the National Registration Act, 1973, and the Result Card of the Secondary School Certificate Examination which had‑provided sufficient proof of his age and no need of proceeding further in the matter was felt through asking of a medical report as the invocation of S.7 of the Junvenile Justice System Ordinance, 2000, was no longer the requirement‑‑‑Impugned order suffered from no infirmity and called for no interference‑‑‑Revision petition was dismissed accordingly.

Banney Khan v. The State 1975 PCr.LJ 453; Jhanda Khan v. Nawab Din and others 1970 SCMR 31; Sarja v. The Crown PLD 1951 Lah. 226; Yousaf v The State 1975 PCr.LJ 936; Rajat Kunda alias Ranajit and another v. The State 1968 PCr.LJ 529 and Muhammad Ahmad alias Anjum v. The State PLD 1974 Kar. 459 ref.

(b) Junvenile Justice System Ordinance (XXII of 2000)‑‑‑

‑‑‑‑S. 7‑‑‑Determination of age‑‑‑‑Provisions of S.7 of the Juvenile Justice System Ordinance, 2000, are not to be invoked in each and every case mechanically, rather it is only where a question with respect to the age of 'an accused cannot be answered through any documentary evidence, that an inquiry is called for under the said law.

(c) Juvenile Justice System Ordinance (XXII of 2000)‑‑‑

‑‑‑‑S. 7‑‑‑Age, determination of‑‑‑Ossification test‑‑‑Test could only give a clue as to the age but could not be a conclusive proof‑‑‑Such exercise had to be resorted only when there was no other proof available like School Leaving Certificate or the Birth Certificate and the Court was in a quandary about the age of the accused‑‑‑When the matter was referred for ossification test, a margin had to be given to doctor's opinion as the same was not absolute.

Sardar Muhammad Ishaq for Petitioner.

Malik Rab Nawaz Noon for Respondent/Accused.

2002 P Cr. L J 636

[Lahore]

Before Zafar Pasha Chaudhary and Asif Saeed Khan Khosa, JJ

THE STATE‑‑‑Appellant

Versus

BASHIR AHMAD and 2 others‑‑‑Respondents

Criminal Appeal No. 1290 of 1988, heard on 21st November, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Benefit of doubt‑‑‑Benefit of doubt can be extended to the accused where it really spells out of the' evidence and the same is not just imaginary or artificial‑‑‑If some doubt does emerge from the facts and circumstances of the case and two views can possibly be taken, then the view beneficial to the accused person has to be adopted‑‑‑Testimony of credible and trustworthy witnesses cannot, however, be discarded on the basis of impragmatic or improbable or extraneous considerations.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Criminal Procedure Code (V of 1898), S.417(1)‑‑‑Appeal against acquittal‑‑‑All the necessary details of the accused and their attributions had been given in the F. I. R. ‑‑‑Presence of the witnesses at the place of occurrence had been proved beyond doubt by the promptness with which the F.I.R. was lodged and the same was natural and not just per chance‑‑‑Ocular testimony was supported by the medical evidence, recovery of weapons, their matching with crime‑empties and motive‑‑­Prosecution had, thus, proved its case against the accused beyond any shadow of doubt‑‑‑Acquittal of accused by Trial Court was consequently set aside and they were convicted under S.302/34, P.P.C.‑‑‑Murder had been committed by the accused in order to vindicate the family honour, which was a mitigating circumstance in their favour and they were, therefore, sentenced to imprisonment for life each with benefit of S.382‑B, Cr.P.C.

(c) Penal Code (XLV of 1860)‑‑‑ ‑

‑‑‑‑S. 302/34‑‑‑Criminal Procedure Code (V of 1898), S.417(l) ‑‑‑ Appeal against acquittal‑‑‑No recovery had been effected from the accused and as such the corroborative evidence by. way of opinion of the Fire‑Arm Expert or matching of any crime‑empty with his gun was not available‑‑­Benefit of doubt was extended to the accused by High Court taking a practical and pragmatic view and sifting grain from the chaff‑‑‑Appeal against acquittal of accused was dismissed accordingly.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Sentence‑‑‑Mitigating circumstance‑‑‑Accused committed murder in order to vindicate family honour‑‑‑Such being a mitigating circumstance, accused were sentenced to imprisonment for life.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Criminal Procedure Code (V of 1898), S.417‑‑‑Appeal against acquittal‑‑‑Contention was that more than fourteen years having passed it would be unjust to convert the acquittal into conviction‑‑­Validity‑‑‑Crime did not die or diminish with the passage of time‑‑‑If guilt of accused had been established, interest of justice demanded that fair handed treatment should be meted out to the prosecution.

Miss Tasneem Ameen for the State.

Aftab Farrukh for Respondents.

Akbar Ali Shad for the Complainant.

Date of hearing: 21st November, 2001.

2002 P Cr. L J 646

[Lahore]

Before Tassaduq Hussain Jilani and Raja Muhammad Sabir, JJ

THE STATE through Capt. Nooruddin, Assistant Director, Anti‑Narcotics Force, Multan—Petitioner

Versus

MUHAMMAD KHALID‑‑‑Respondent

Criminal Revision Petition No.173 of 2000, decided on 6th February 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.516‑A, second proviso‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.33‑‑‑Application by State for destruction of case property‑‑­Procedure‑‑‑If the case property is a dangerous drug/intoxicant/liqour or substance, specific procedure has been stipulated and proviso, Cr.P.C.‑‑‑Only prerequisite for the exercise of jurisdiction to allow such application was the obtaining and preparing number of samples of the property by the Court under its supervision and control and thereafter issuing a certificate for the destruction of the remaining property‑‑‑Principles.

There is nothing in the Criminal Procedure Code which mandates that the case property cannot be disposed of till a case is finally decided. The law in fact specifically provides that where the property is perishable the Court may pass an appropriate order for its disposal during the pendency of the case. If the case property is a dangerous drug/intoxicant/liquor or any other narcotics substance, the law has stipulated a specific procedure in second proviso of section 516‑A, Cr.P.C.

In the present case no objection was raised on behalf of the accused before the trial Court with regard to the application made by the State seeking permission to destroy the narcotics which was subject ­matter of the cases. The accused would have his right to question the veracity of the report of the Chemical Analyst qua the samples in question at an appropriate stage during trial. So far as the destruction of the remaining case property/narcotics substance is concerned, there was no justifiable reason for the trial Court to dismiss the application filed by the State. The only pre‑requisite for the exercise of jurisdiction was obtaining and preparing number of samples of the property by the Court under its supervision and control and thereafter issuing a certificate for the destruction of the remaining property. High Court directed that subject to following the procedure laid down in section 516‑A, Cr.P.C. the trial Court shall issue a certificate prayed for by the State.

Muhammad Mumtaz Malik for Petitioner.

2002 P Cr. L J 688

[Lahore]

Before M.A. Shahid Siddiqui, J

MUHAMMAD DIN and another‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.6128/B of 2001, decided on 14th November, 2001.

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

‑‑‑‑S. 498‑‑‑Penal Code (XLV of 1860), Ss.420/468/471‑‑‑Interim bail, confirmation of‑‑‑Allegation against the accused was that they had entered into a sale agreement with the complainant and the accused despite receiving amount from the complainant had not got the sale‑deed registered on due date and trial the accused were not owners of land, the subject‑matter of the agreement, and that they had fraudulently received money and had executed the agreement‑‑‑Contention of the accused was that they had earlier entered into a sale agreement with another person in regard to land from which they had sold some land to the complainant, and such fact was not concealed from the complainant and that the complainant himself could not perform his part of agreement on due date‑‑‑Agreement arrived at between the accused and the complainant showed that the accused had nowhere claimed to be the owners of the land and had mentioned that their ownership and possession was under an agreement‑‑‑Element of cheating and misrepresentation at the time of execution of agreement was not borne out from the record‑‑‑Contention of the accused that an attempt had been made to enforce a civil liability through criminal procedure, was not without force‑‑‑Interim bail earlier granted to the accused, was confirmed in circumstances.

M.A. Zafar for Petitioners.

2002 P Cr. L J 698

[Lahore]

Before Tassaduq Hussain Jilani and

Raja Muhammad Sabir, JJ

ABDUL LATIF‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.434 and Murder Reference No.479 of 1998, heard on 12th September, 2001.

Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 302/324‑‑‑Appreciation of evidence‑‑‑Accused being a police constable was on duty with his official rifle at the time of occurrence and made three shots murdering the deceased, who was allegedly involved in the murder of his brother and was acquitted by the Court, alongwith two innocent passengers of the bus‑‑‑Accused also caused injuries to the prosecution witnesses‑‑‑Accused, a police official, while on duty was supposed to protect life and public property, but he took the law into his own hands without caring about his uniform, misused his official rifle and killed the persons in cold‑blooded and brutal manner‑‑‑Plea of grave and sudden provocation raised by the accused in his statement under S.342, Cr.P.C. was merit less as no material was on record to convince that the deceased before his death had provoked the accused in the manner as alleged by the accused‑‑‑Defence plea raised by the accused was not spelt out from the evidence on record and same could not be believed‑‑‑Accused was not entitled to any mitigation in sentence and was rightly convicted and sentenced.

Ajun Shah v. The State PLD 1967 SC 185; Muhammad Aslam alias. Chhachhi v. The State 1982 SCMR 1029; Muhammad Aslam v. The State PLD 1985 SC 257; Ghulam Mustafa v. State PLD 1995 SC 488 and Ghulam Abbas v. Mazher Abbas and another PLD 1991 SC 1059 ref.

Malik Muhammad Saleem for Appellant.

Malik Muhammad Qasim, A.A.‑G. alongwith Ataullah Khan Tareen for the State.

Allah Bukhsh Kalanchi for the Complainant.

Date of hearing: 12th September, 2001.

2002 P Cr. L J 711

[Lahore]

Before Muhammad Nawaz Abbasi and Muhammad Saeed Akhtar, JJ

NOOR HUSSAIN SHAH and 2 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.40, 203 and Murder Reference No.82 of 1993, heard on 21st June, 2001.

Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑Ss. 302/324/34‑‑‑Appreciation of evidence‑‑‑Witnesses had corroborated each other while supporting the story of the F.I.R. and in respect of motive part of the prosecution story‑‑‑Nothing was on record to suggest that either it was not a moonlit night or that the witnesses could not identify the accused at the place of occurrence‑‑‑Witnesses, who had described the role of firing by each accused, had also stated the manner of sustaining the, injuries by the deceased and the first informant at the hands of the accused and their statements were supported by the medical evidence‑‑‑Deceased was brother‑in‑law of the accused and the parties being related to each other and resident of the same place, could conveniently identify each in the moonlit night‑‑‑Suggestion of the accused that the deceased was killed by some unknown assailants because of his immoral activities was based only on imagination ‑‑‑F.I.R. having been lodged promptly, there was no possibility of substitution and wrong identification of the accused‑‑‑Witnesses were closely related to the accused and had no enmity against them to involve them falsely in the offence of murder whereas the accused had nursed a grudge against the complainant party due to desertion of their sister who was married with the deceased which could be revengeful‑‑‑Immediate cause of occurrence was not known‑‑‑Grudge between the parties was not deniable, but as to what prompted the accused to attack on the deceased on the night of occurrence was shrouded in mystery‑‑‑Strained relations and hatred of parties against each other in the background was admitted which probably was not the immediate reason for the occurrence‑‑‑Nothing was brought on record to suggest that the deceased died in the , hospital due to negligence of medical or para‑medical staff and that death was not the direct result of fire‑arm injuries‑‑‑Presence of the injured at the spot was established beyond doubt and his statement with regard to occurrence had full support from the medical evidence and was corroborated with prosecution version given in the F.I.R.‑‑‑Recovery of weapon from the accused would not be an incriminatory evidence to be used against the accused because neither any empty was recovered from the spot nor the weapons of offence were sent to the Forensic Expert‑‑‑Plea of alibi by the accused was not established‑‑Accused, in circumstances, were rightly convicted by the Trial Court and two of the accused were rightly sentenced, but injury caused by the third accused which though was declared grievous, but being not fatal to life, extreme penalty of death awarded to him was not proper‑‑‑Sentence of death awarded to said accused was reduced to imprisonment for life in circumstances.

Ch. Afrasiab Khan for Appellant.

M. Ayub Kiani, State Counsel.

Malik Muhammad Nawaz Khan for the Complainant.

Date of hearing: 21st June, 2001.

2002 P Cr. L J 729

[Lahore]

Before Asif Saeed Khan Khosa and Muhammad Farrukh Mahmud, JJ

MUHAMMAD MUBEEN and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.44 of 1999, heard on 9th October, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(4)‑‑‑Anti‑Terrorism Act (XXVII of 1997) S.7‑‑­ Appreciation of evidence‑‑‑Medical at some perpetrated the alleged offences, death of the deceased was treated as suicidal and not homicidal‑‑‑Accusing finger was raised against the accused persons only on the basis of alleged extra­ judicial confession made by them before prosecution witnesses‑‑‑Apart from said piece of evidence no other significant or positive evidence was produced by the prosecution implicating their, in the case‑‑‑Prosecution had not setup any motive prompting the accused to perpetuate the alleged offences against the deceased‑‑‑No incriminatory material or article was recovered from the Accused during investigation of the case ‑‑‑Extra­ judicial confession allegedly made by the accused did trot receive any corroboration or support from any other independent material or evidence‑‑‑Prosecution having failed to prove its case against the accused beyond reasonable doubt, conviction and sentences recorded by the Trial Court against them were set aside extending them benefit of doubt and they were acquitted.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 37‑‑‑Confession‑‑‑Extra‑judicial confession was a weak type of evidence and it. was rarely sufficient by itself to maintain conviction.

(c) Criminal Trial-----

‑‑‑‑Suspicion‑‑‑Suspicion, however, strong, could never be a substitute for proof beyond reasonable doubt as required in a criminal case.

Ch. Faqir Muhammad assisted by Mian Arshad Latif for Appellants.

Sh. Muhammad Rahim for the State.

Dates of hearing; 3rd, 4th, 8th and 9th October, 2001.

2002 P Cr. L J 744

[Lahore]

Before Tanvir Bashir Ansari, J

AHMAD and 13 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 1349‑B of 2000/BWP and Criminal Miscellaneous No.84‑B of 2001, decided on 8th July, 2001.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), SS.302/324/148/149/337/ 430/380/114‑‑‑Bail, grant of ‑‑‑F.I.R. was promptly lodged‑‑‑Specific role was attributed to each of the accused persons who were armed with deadly weapons and took part in the occurrence in which one person was murdered and nine prosecution witnesses were injured‑‑‑Accused persons were found involved in the offence in three investigations‑‑‑‑ Case fell within the prohibitory clause of 5.497, Cr.P.C.‑‑‑Bail was declined in circumstances.

Mian Muhammad Afzal Wattoo for Petitioners.

Abdul Sattar Zafar for the Complainant.

Mirza Nadeem Asif for the State.

2002 P Cr. L J 746

[Lahore]

Before Shaikh Abdur Razzaq and Abdul Shakoor Paracha, JJ

Mst. ROBINA KAUSAR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.542‑B of 2001, decided on 8th August, 2001.

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

‑‑‑‑Ss. 497 & 103‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9‑‑Prohibition (Enforcement‑of Hadd) Order (4 of 1979), Arts. 3/4‑‑­Bail, grant of‑‑‑1500 grams of Charas was recovered at the instance of accused‑‑‑Bail was sought on the grounds that accused was a lady and had given birth to a child and that provisions of 5.103, Cr.P.C. were not observed‑‑‑Bail was refused to the accused on the grounds so urged.

Malik Ghulam Farid Parhoor for Petitioner.

Ata Muhammad Khan Balouch Special Prosecutor.

2002 P Cr. L J 748

[Lahore]

Before Zafar Pasha Chaudhary and Mian Muhammad Jahangir, JJ

YASIN and others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1315 of 2000 and Criminal Miscellaneous No.3086 of 2001, decided on 15th November, 2001.

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

‑‑‑‑S. 426‑‑‑Penal Code (XLV of 1860), Ss.302/148/149/109‑‑‑Anti­Terrorism Act (XXVII of 1997), S.7‑‑‑Suspension of sentence and grant of bail‑‑‑Complainant had given names of all the accused person:, except four unknown persons, alongwith their respective weapons but no role had been attributed to the accused‑‑‑Complainant in his statement admitted that the accused was confined in "D" Jail at rite time of occurrence‑‑‑Another witness had made allegation of abetment only against the accused‑‑‑Sentence of the accused was suspended and he who admitted to bail.

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

‑‑‑‑S. 426‑‑‑Penal Code (XLV of 1860), Ss.302/148/149/109—Anti-Terrorism Act (XXVII of 1997), S.7‑‑‑Contention was that the name of the accused had been included in the list of convicts on account (If inadvertence‑‑‑Trial Court had acquitted the accused, of the charge of abetment in a paragraph of judgment but named him amongst the persons convicted‑‑‑Effect‑‑‑Held, although it appeared to be extremely unusual but may be on account of large number of accused and deceased a mistake was committed and the name of the accused was included amongst the convicts, it would, therefore, be unjust to keep the accused confined in jail and to await the decision of the appeal‑‑‑Sentence of the accused was suspended and he was admitted to bail.

Munir Ahmad Bhatti for Petitioner.

Abdul Rasheed Monan for the State.

2002 P Cr. L J 752

[Lahore]

Before Muhammad Nawaz Abbasi and Muhammad Saeed Akhtar, JJ

MUHAMMAD IQBAL ‑‑‑ Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 183 and Murder Reference No.238 of 1995, decided on 23rd May 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/449‑‑‑Appreciation of evidence‑‑‑Accused was alleged to have committed triple murder, his wife and two others, who allegedly had illicit relations with his deceased wife‑‑‑Accused had pleaded grave and sudden provocation in murdering the deceased‑‑‑Accused alleged that he murdered the persons when he saw two male accused alongwith his wife in his own house‑‑‑Prosecution story was that the accused had killed the three deceased in the same succession at different places due to suspicion of illicit relations with his deceased wife with two male deceased‑‑‑Eye‑witnesses had denied plea of the accused that it was a sudden occurrence and had supported the prosecution‑ story‑‑‑Medical evidence also had provided strong corroboration to the eye‑witness account‑‑‑Accused had not produced any witness from the vicinity in support of his version that two male deceased were murdered by him alongwith his wife in his house‑‑‑Accused had not pleaded the version of grave and sudden provocation before the police and he had also not made any effort to bring on record his said version at any stage during the investigation and he, for the first time at the trial, had introduced his version in the light of the motive suggested by the prosecution‑‑­Accused, in circumstances, had failed to prove grave and sudden provocation and it had been proved that the occurrence was premeditated due to the element of grudge and revenge‑‑‑Family honour of the accused though was involved in the case, but there was no justification to kill the three deceased simply on the basis of mere suspicion‑‑‑Occurrence relating to the murder of the wife of the accused was unseen and it came to the knowledge of the neighbours after she was killed by the accused in his house‑‑‑What prompted accused to kill his wife was not known, and therefore, to the extent of the murder of wife of the accused, extreme penalty of death was reduced to imprisonment for life but he would not deserve any leniency in the matter of sentence for murder of other two deceased.

Ch. Muhammad Iqbal for Appellant.

Syed Sajjad Hussain Shah, A.A.‑G. for the State.

2002 P Cr. L J 762

[Lahore]

Before Sheikh Abdur Razzaq, J

IMTIAZ and 3 others‑‑‑Appellants

Versus

THE STATE‑--‑Respondent

Criminal Appeal No. 1052 of 1998, heard on 29th October, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 324/34, 337‑A(i), 337‑A(ii) & 337‑F(i)‑‑‑Criminal Procedure Code (V of 1898), S.345‑‑‑Appreciation of evidence‑‑‑Sentence‑‑­Compromise between the parties‑‑‑Effect‑‑‑Complainant as well as the injured persons had entered into compromise with three out of the four accused‑‑‑Fourth accused who had been assigned the role of causing injuries to the injured and had been sentenced to undergo R.I. for seven years and fine had been in jail for the last four years‑‑‑Said fourth accused having adequately been punished for his offence, the period of sentence already undergone by him would meet the ends of justice‑‑­Sentence awarded to the accused was reduced to the period already undergone by him‑‑‑Other three accused persons who were on jail, their bail bonds stood discharged.

M.A. Zafar for Appellants.

Mubeen‑ud‑Din Qazi for the Complainant.

Ch. Muhammad Nazir for the State.

Date of hearing: 29th October, 2001

2002 P Cr. L J 766

[Lahore]

Before Zafar Pasha Chaudhary and Mian Muhammad Jahangir, JJ

MUHAMMAD ANWAR and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.899, 995 of 1996, Criminal Revision No.91 of 1997 and Murder Reference No. 295 of 1996, heard on 22nd October, Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/148/149‑‑‑Appreciation of evidence‑‑‑Sentence‑‑‑Three accused persons were specifically attributed fire‑shots on the deceased‑‑­Doctor had opined that injuries assigned to three accused were fatal, but the Trial Court found two of the accused not guilty and acquitted them of the charges against them giving them benefit of doubt and on the ground that they had been found to be innocent during course of investigation‑‑­Third accused from the very beginning was alleged to be armed with the gun and having fired a shot hitting the deceased on his back and same position remained during the trial‑‑‑Both the prosecution witnesses unequivocally implicated the accused having fired at the deceased‑‑­Large number of the accused persons were involved in the case, but the manner in which the occurrence had taken place and the time at which it happened, it was not possible for the complainant and other witnesses to have identified all the assailants or the members of the unlawful assembly with absolute certainty or with precision‑‑‑Trial Court, in circumstances, proceeded to grant benefit of doubt to all of them and acquitted them of the charge, except the accused who fired a straight shot on the person of the deceased and due to that reason had been picked up as a main accused‑‑‑Prosecution witnesses had made consistent statements qua involvement of said accused‑‑‑Apart from that, recovery of various fire‑arms used in the commission of the offence was effected from his Dera‑‑‑Conviction of said accused which appeared to be well­ founded was upheld and maintained‑‑‑Three persons were accused to have fired at the deceased and injuries allegedly caused by the accused and other co‑accused had been found fatal, the fact remained that the deceased had received fire‑arm wounds and each of the injury caused would have contributed towards the death of the deceased‑‑‑Two of the co‑accused having been acquitted, imposition of extreme penalty of death on them, did not appear to be justified‑‑‑Sentence of death was converted to that of imprisonment for life.

Ehsan Ullah Khan Lillah assisted by the Azam Nazir Tarar for Appellant.

Imtiaz Ahmed Chaudhry for the State.

Munir Ahmad Bhatti for the Complainant.

Date of hearing: 22nd October, 2001.

2002 P Cr. L J 773

[Lahore]

Before Sheikh Abdul Razzaq and Bashir A. Mujahid, JJ

AZHAR MUNIR‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 163 and Murder Reference No. 106 of 1997, heard on 12th November, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Site plan ‑‑‑incident taking place at night‑‑‑Lights were shown in the site plan prepared by draftsman and he was not cross‑examined on that score‑‑‑Contention that there was no street light in the locality had no force and certificate to that effect had no legal value as the same was not proved in accordance with law.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302‑‑‑Appreciation of evidence‑‑‑Both the eye‑witnesses were residents of the same locality‑‑‑Complainant was maternal uncle of the deceased but mere relationship was no ground to discard testimony of such witnesses ‑‑Eye‑witnesses had no previous enmity against accused for his false implication or substitution by letting off real culprits‑‑­Witnesses had stood test of lengthy cross‑9xamination and no material discrepancy was brought on record to discard their testimony‑‑­Statements of such witnesses could not he discarded in circumstances.

.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑ ‑‑Post‑mortem examination‑‑‑Delay in‑‑‑Effect‑‑‑No question in this regard was put to the doctor as to why post‑mortem was delayed‑‑‑Prosecution's contention that delay in concluding post‑mortem examination created serious doubts about the occurrence had no force in circumstances.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑‑Medical evidence‑‑‑No contradiction was noticed in medical evidence and ocular account‑‑­Contention that both the injuries on the deceased were result of one blow had no force as no such question was put to the doctor‑‑‑Recovery of blood‑stained knife ‑proved by prosecution was corroborated by positive report of Chemical Examiner and Serologist‑‑‑Death sentence was confirmed in circumstances.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Motive‑‑‑Absence or weakness of motive was immaterial if the case of prosecution had been proved against accused by direct evidence.

1999 SCMR 1668 and 2001 SCMR 1334 ref.

Latif Khan Khosa for Appellant.

Ghulam Fareed Sanotra for the Complainant

Ashfaq Ahmed Chaudhry for the State.

Date of hearing: 12th December, 2001.

2002 P Cr. L J 779

[Lahore]

Before Sheikh Abdur Razzaq, J .

GHULAM HUSSAIN alias RAFAQAT‑‑‑Petitioner

versus.

THE STATE‑‑‑Respondent

Criminal Appeal No.35 of 1999, heard on, 27th August, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 392(b)/34‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.25‑‑‑Criminal Procedure Code (V of .1898), S.164‑‑‑Retracted confessional statement‑‑­Evidentiary value‑‑‑Trial Court disbelieved oral evidence produced by prosecution and relied upon confessional statement of the accused which was neither recorded in present F.I.R. nor was brought on recprd nor was shown to Magistrate concerned at the time of bringing it on record‑‑‑While recording' the confessional statement, the required questions were not put to accused ‑‑‑Accuted had already retracted from such confessional statement‑‑‑Only independent evidence against accused was retracted confessional statement which courd not be made a hasp for an order of conviction unless and until the same stood corroborated by some other independent evidence.

Muhammad Sharif Bhatti for Appellant.

Muhammad Saleem Nawa7, Abbasi, A.A. ‑G. for the State.

Date of hearing: 27th August, 200.1.

2002 P Cr. L J 837

[Lahore]

Before Tassaduq Hussain Jilani and Raja Muhammad Sabir, JJ

THE STATE through Capt. Nooruddin, Assistant Director, Anti‑Narcotics Force, Multan‑‑‑Petitioner

Versus

MUHAMMAD KHALID‑‑‑Respondent

Criminal Revision Petition No.173 of 2000, decided on 6th February, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.516‑A, second proviso‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.33‑‑‑Application by State for destruction of case property‑‑­Procedure‑‑If the cast: property is a dangerous drug/intoxicant/liquor or any other narcotics substance, specific procedure has been stipulated under S.516‑A, second proviso, Cr.P.C.‑‑‑Only prerequisite for the exercise of jurisdiction to allow such application was the obtaining and preparing number of samples of the property by the Court under its supervision and control and thereafter issuing a certificate for the destruction of the remaining property‑‑‑Principles.

There is nothing in the Criminal Procedure Code which mandates that the case property cannot be disposed of till a case is finally decided. The law in fact specifically provides that where the property is perishable the Court may pass an appropriate order for its disposal during the pendency of the case. If the case property is a dangerous drug/ intoxicant/liquor or any other narcotics substance, the law has stipulated a specific procedure in second proviso of section 516‑A, Cr.P.C.

In the present case no objection was raised on behalf of the accused before the trial Court with regard to the application made by the State seeking permission to destroy the narcotics which was subject­-matter of the cases. The accused would have his right to question the veracity of the report of the Chemical Analyst qua the' samples in question at an appropriate stage during trial. So far as the destruction of the remaining case property/narcotics substance is concerned, there was no justifiable reason for the trial Court to dismiss the application filed by the State. The only pre‑requisite for the exercise of jurisdiction was obtaining and preparing number of samples of the property by the Court under its supervision and control and thereafter issuing a certificate for the destruction of the remaining property. High Court directed that subject to following the procedure laid down in section 516‑A, Cr.P.C. the trial Court shall issue a certificate prayed for by the State.

Muhammad Mumtaz Malik for Petitioner.

2002 P Cr. L J 839

[Lahore]

Before Khawaja Muhammad Sharif, J

ABDUL SATTAR‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.559 and 1091 of 1992, decided on 21st November, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 304 & 308‑‑‑Appreciation of evidence‑‑‑Recovery memo showed that crime‑empties were recovered from courtyard of complainant which had shown that fire was shot by the complainant party‑‑‑Injuries on persons of prosecution witnesses were very minor in nature and on non-­vital parts of bodies of injured‑‑‑Complainant party did not speak the truth either before police or before Trial Court‑‑‑Nothing incriminating was recovered from the accused‑‑‑Co‑accused had been found innocent and were acquitted‑‑‑Case of accused was on similar or better footing than that of acquitted co‑accused‑‑‑Complainant in order to take possession of land in dispute had not adverted to due process of law and had come to place of occurrence armed with deadly weapons to take forcible possession of land in dispute as a result of which deceased lost his life‑‑‑Injuries on three persons from the side of accused were suppressed by complainant‑‑‑Defence version put by accused appeared to be more reasonable and near to truth in view of venue of occurrence and recovery of crime‑empties‑‑‑Prosecution having failed to prove its case against accused beyond any reasonable doubt, conviction and sentence recorded against him by Trial Court were set aside.

Imran Aziz Qureshi for Appellant.

S.D. Qureshi for the State.

Date of hearing: 21st November, 2001.

2002 P Cr. L J 844

[Lahore]

Before Asif Saeed Khan Khosa, J

ABDUL MAJEED and another‑ ‑‑Petitioners

Versus

THE STATE‑ ‑‑Respondent

Criminal Miscellaneous No.6231 /B of 2001, decided on 6th December, 2001.

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

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/324/506/148/149/186­‑‑Bail, grant of‑‑‑Accused were not nominated in the F.I.R. but were implicated two days after the registration of the F.I.R. on supplementary statement made by the complainant despite the fact that occurrence had taken place during daylight and the accused lived in the same village‑‑­Implication of accused in the case, prima facie was an outcome of deliberation on the part of tire complainant party spreading over a period of two days‑‑‑Supplementary statement of complainant showed that one of the accused was empty‑handed during the occurrence and he had not caused any injury during the incident and the other one was armed with a Sota with which he had caused a blow on the head of the complainant, but medico‑legal report had shown that complainant had sustained two injuries which were found to have been caused by a blunt weapon‑‑­F.I.R. as well as the supplementary statement made by the complainant had depicted that five persons had independently caused injuries to the complainant, but medico‑legal report of the complainant had reflected only two injuries on his person‑‑‑Question as to which out of the said five persons had in fact hit the complainant, required further probe ‑‑‑Challan having already been submitted after completion of investigation, continued physical custody of accused in jail was not likely to serve any beneficial purpose‑‑Case against the accused calling for further inquiry, they were admitted to bail.

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

‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Further inquiry and commencement of trial‑‑‑Bail, in a case calling for further inquiry into the guilt of an accused, was to be granted as of right and not by way of grace or concession‑‑‑Bail sometimes was refused to accused if the trial of case had commenced, but such refusal would proceed on the principle of practice and propriety‑‑­Whenever a question of propriety was confronted with a question of right, then question of right must prevail.

Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 ref.

Syed Zahid Hussain Bukhari for Petitioners.

Mazhar Iqbal Sindhu for the Complainant.

Mian Humayun Aslam for the State.

Date of hearing: 6th December, 2001.

2002 P Cr. L J 856

[Lahore]

Before Khawaja Muhammad Sharif M. Naeemullah Khan Sherwani, JJ

MUHAMMAD ARSHAD ‑‑‑ Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1026 and Murder Reference No.488/T of 1999, heard on 13th February, 2002. .

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

‑‑‑‑S. 10(4)‑‑‑Appreciation of evidence ‑‑‑F.I.R. was lodged after a delay of 18 hours‑‑‑No allegation of Zina was made in the F.I.R. against any of the accused wherein only it was stated that all the three accused were standing near the cot of the victim girl holding her from arms and were doing obscene acts‑‑‑Victim girl herself even did not level any allegation of Zina against the accused in her statement made before the Police‑‑­Victim, in her statement recorded under S.164, Cr.P.C. made an allegation of Zina against the accused after 27 days, but the Magistrate who recorded the statement having not been produced by the prosecution, her statement could not be treated as a substantive piece of evidence‑‑‑Clothes of the victim allegedly stained with semen or blood were not taken into possession by the police during investigation‑‑‑No marks of violence according to medico‑legal report of the victim were found on any part of her body‑‑‑Period of sexual intercourse committed with the victim was not determined by the lady doctor‑‑‑Benefit of doubt was extended to the accused in circumstances and they were acquitted accordingly.

Abdul Hameed Rana for Appellants.

Mian Ehsan‑ul‑Haq Sajid for the State.

Date of hearing: 13th February, 2002.

2002 P Cr. L J 859

[Lahore]

Before Raja Muhammad Sabir and Tassaduq Hussain Jillani, JJ

ASHIQ HUSSAIN ‑‑‑Petitioner

versus

ABDUL HAMEED and another‑‑‑Respondents

Criminal Revision No. 197 of 1999, heard on 26th September, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(6)‑‑‑Criminal Procedure Code (V of 1898), S.439‑‑‑Qanun‑e­-Shahadat (10 of 1984), Arts. 118 to 121‑‑‑Appreciation of evidence‑‑‑Grave and sudden provocation‑‑‑Burden of proof‑‑‑Accused had contended that he had acted in a spell of grave and sudden provocation as the moment he found the accused lying with the co­accused who was his niece in objectionable condition, feeling of Ghairat arose in him and he committed the murder of both the persons‑‑‑Nothing was on record to indicate that the deceased were found before their death in compromising position‑‑‑Bodies of the deceased persons were not naked and nothing was in medical evidence to show that they were indulging in sexual intercourse at the time of occurrence‑‑‑If the prosecution evidence was disbelieved and the accused had taken plea to bring the case within any of the general exceptions in P.P.C., the onus would shift on the accused to prove existence of circumstances which could bring his case within those exceptions‑‑‑Proposition that if an accused set up, a defence plea to bring his case within any of the general exceptions in P.P.C., he had to prove those circumstances, was not only a mandate of law but was also desirable to check and control the chauvinistic tendencies in a man who at times was driven by prejudices of caste, tradition, compulsion of conceited impulses or some other ulterior motive to murder a man or woman‑‑‑No Court could and no civilized human being should sanctify murders in the name of tradition, family honour or religion‑‑‑Accused having killed two teenagers in a brutal manner, no mitigating circumstance existed to bring his case within the ambit of S.302(c), P.P.C.‑‑‑Conviction of accused under S.302(c), P.P.C. was set aside and instead he was convicted and sentenced under S.302(b), P.P.C. accordingly.

1992 SCMR 247; PLD 1994 SC 392; 1997 PCr.LJ 2056; Federation of Pakistan v. Gul Hasan Khan PLD 1989 SC 633; State v. Abdul Wahid 1992 PCr.LJ 1596; Riaz Ahmad v. State 1998 SCMR 1729; Ali Muhammad v. Ali Muhammad PLD 1996 SC 274; Abdul Zahir and another v. The State 2000 SCMR 406; Abdul Majid v. The State 1991 PCr. LJ 1497; Muhammad Khan and others v. The State and others 2001 PCr.LJ 1766 and Qutab‑ud‑Din v. The State PLD 2001 SC 101 ref.

Khalid Abdullah Khan for Petitioner.

Mian Riaz Hussain for Respondent No. 1.

Malik Muhammad Qasim, Asstt. A.G. for the State.

Date of hearing: 26th September, 2001.

2002 P Cr. L J 870

[Lahore]

Before Sheikh Abdur Razzak and Muhammad Zafar Yasin, JJ

MUHAMMAD AKBAR and 6 others‑‑‑Petitioners

versus

THE STATE‑‑ ‑Respondent

Criminal Appeals Nos. 62, 59, 70 and Murder Reference No. l l of 1999, heard on 22nd August, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/436/452/148/149‑‑‑Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.4 & Sched. ‑‑‑Appreciation of evidence‑‑‑Prosecution witnesses who were injured, conclusively proved their presence at the place of occurrence and had categorically supported the complainant's version regarding infliction of injuries on the person of the deceased as well as on their own person‑‑‑Oral evidence further stood corroborated by medical evidence which had come on record through the statement of Medical Officer who, in his statement had admitted that death of the deceased was the result of the injury attributed to the accused‑‑‑Oral evidence of the complainant and injured witnesses, read with medical evidence, in circumstances, had proved beyond any doubt that the deceased died as a result of injury caused by the accused ‑‑‑Co­-accused had been attributed an injury on the legs of the deceased which stood proved from oral as well as documentary evidence, but the said injury had not caused the death of the deceased‑‑‑Fire‑arm injuries caused by the other co‑accused to injured prosecution witnesses had also been proved‑‑‑Accused had challenged the jurisdiction of the Trial Court on the ground that as one of the offences under S.436, P.P.C. fell within the ambit of Courts constituted under Suppression of Terrorist Act, 1975, the Trial Court hail no jurisdiction in the case‑‑‑Contention was repelled as the main offence was under S.302, P.P.C. and not under S.436, P.P.C. and said objection was never raised by the accused before the Trial Court‑‑‑Accused having been fully proved to be responsible for causing death of a young boy of 18 years, in a brutal manner and the prosecution having successfully proved its case against him, his conviction and sentence recorded by the Trial Court were maintained‑‑­Co‑accused though had caused injury to the deceased, but said injury having not caused death of the accused, his, conviction and death sentence awarded under S.302, P.P.C. by the Trial Court was converted to imprisonment for life‑‑‑Conviction and sentences of other co‑accused, who were not held responsible for the murder, were set aside.

Manzoor Ahmad v. The State 1999 SCMR 132; Khadim Hussain v. The State 2000 PCr.LJ 383 and Sher Bahadur v. The State 1998 SCMR 2610 ref.

Malik Sadiq Mahmood Khuram, Muhammad Umair Mohsin and Raja Muhammad Sohail Iftikhar for Appellants.

Mian Muhammad Bashir, A.A.‑G. for the State.

Mian Muhammad Afzal Wattoo for the Complainant.

Date of hearing: 22nd August, 2001.

2002 P Cr. L J 886

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira lqbal, JJ

AMEER KHAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 133 and Murder Reference No. 104 of 1997, heard on 19th November, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Criminal Procedure Code (V of 1898), Ss.374 & 376‑‑­Appreciation of evidence‑‑‑Accused was nominated in the F.I.R. which was promptly recorded and it was daylight occurrence‑‑‑Accused being known to the prosecution witnesses, there was no question for mistaken identity or substitution‑‑‑Accused who had alleged that prosecution witness had implicated him on account of previous enmity, had failed to bring on record anything to prove that witnesses had any previous enmity against him for his false implication or substitution by letting off the real culprit‑‑‑Medical evidence was in line with the ocular account and the place of occurrence had also not been disputed‑‑‑Mere relationship of the prosecution witnesses inter se was no ground to discard their testimony as they had no previous enmity against the accused‑‑‑Presence of the prosecution witness .in their gelds near the place of occurrence was natural‑‑‑Absence or, weakness of the motive was no ground for awarding lesser penalty to the accused‑‑‑Statements of both the eye‑witnesses were confidence‑inspiring as they stood the test of cross­-examination, but no material discrepancy had been brought on record‑‑­Prosecution having established its case against the accused by ocular account corroborated by medical evidence and the motive, appeal against judgment of the Trial Court, was dismissed and death sentence awarded to him was confirmed.

PLD 1972 Lah. 153 and PLD 1969 SC 127 ref.

(b) Criminal trial‑‑‑

‑‑‑‑Motive‑‑‑Absence or weakness of the motive was no ground for awarding lesser penalty.

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

‑‑‑‑S. 156‑‑Investigation of case‑‑‑Opinion of Investigating ‑Officer‑‑­Nature‑ Opinion of the Investigating Officer was not binding on the Court.

Syed Ehsan Qadir Shah for Appellant.

Masood Sadiq Mirza for the State.

Date of hearing: 19th November, 2001.

2002 P Cr. L J 891

[Lahore]

Before Sheikh Abdur Razzaq, J

MUHAMMAD IRFAN‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.31/B of 2001/BWP, decided on 8th August, 2001.

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

‑‑‑‑S.497(2)‑‑‑Penal Code (XLV of 1860), Ss.392/394‑‑‑Bail, grant of‑‑‑Accused who had not been nominated in the F.I.R., had been assigned the role of inflicting injuries on the person of the complainant which stood corroborated from the medico‑legal certificate, but the accused had not been put to identification test‑‑‑Accused was in jail for the last one year without any trial‑‑‑Case of the accused fell within provisions of S.497(2), Cr.P.C. entitling him to grant of bail.

Farman Ali v. The State 1997 SCMR 971; Muhammad Rafique v. The State 1997 SCMR 412 and Muhammad Tariq v. The State 2000 PCr.LJ 1840 ref.

Haji Muhammad Asghar and Chaudhry Nisar Ahmad for Petitioner.

Muhammad Umair Mohsin for the Complainant.

M.A. Hameed for the State.

2002 P Cr. LJ 894

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

MUHAMMAD BASHIR and others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeals, Nos.412. 550 and Murder Reference No. 194 of 1996, heard on 20th November, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/337‑F(iii)/34‑‑‑Appreciation of evidence‑‑‑Sentence, reduction in‑‑‑Motive alleged by the complainant was not proved against the accused‑‑‑Prosecution story had been corroborated by three injured witnesses whose presence at the spot was established and had not been controverted by the accused‑‑‑Mere medical examination of said witnesses through a doctor who belonged to the brotherhood of the complainant was no ground to discard their testimony as no step was taken on behalf of the accused for their re‑examination to falsify their medico‑legal reports‑‑‑Occurrence had been admitted by the accused‑‑‑Plea of one of the accused that complainant party was aggressor and that he fired in self‑defence, had not been substantiated by any evidence‑‑‑Incident was a daylight occurrence and the F.I.R. was recorded promptly‑‑‑Contention that the report of Forensic Science Laboratory was false and was procured by the Investigating Officer to help the complainant was repelled as there was no allegation that the sealed parcels were tampered with by one of the prosecution witnesses‑‑­Was not found during the investigation that the deceased or the prosecution witnesses had arrived at the spot duly armed and plea of the accused that he acted in self‑defence, was not plausible‑‑‑Prosecution case had been proved by ocular account narrated by the complainant and the injured prosecution witnesses and their relationship inter se was no ground to discard their testimony as no previous serious enmity was proved to exist between the parties‑‑‑Ocular account had further been corroborated by the medical evidence as well as recovery of weapon of offence‑‑‑Conviction of the accused recorded by the Trial Court could not be interfered with, but as the motive of occurrence had been disbelieved, it was not clear what happened at the spot and what transpired between the parties immediately prior to the occurrence‑‑­Reasonable possibility existed that the defence put by the accused might be true to some extent‑‑‑Death penalty awarded to the accused was not proper and same was reduced to life imprisonment which would meet the ends of justice‑‑‑Remaining sentences were maintained.

(b) Criminal trial‑‑‑

‑‑‑‑Motive‑‑‑Absence or weakness of motive was immaterial for recording the conviction or awarding lesser penalty.

S.M. Latif Khan Khosa for Appellant.

Ghulam Sarwar Nihang for Asghar All Gill for the Complainant.

Masood Sadiq Mirza for the State.

Date of hearing: 20th November, 200 l

JUDGMENT

2002 P Cr. L J 902

[Lahore]

Before Sheikh Abdur Razzaq and Muhammad Zafar Yasin, JJ

MAZHAR alias MAZHAREE and 3 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal (S.C.) No.6 of 1995/BWP in Criminal Appeal /SAC of 1993, heard on 29th August, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 336/337/324/365/34‑‑‑Appreciation of evidence ‑‑‑ Sentence‑‑­Prosecution case was that two of the accused had been assigned a specific role of extracting right and left eyes of the victim‑‑‑Case of the prosecution had been supported by the prosecution witnesses and also by medical evidence‑‑‑Doctor who examined 'the victim had stated that as a result of injuries caused on the person of the injured/victim complete eye‑sight/vision of the injured had been lost for ever‑‑‑Doctor had stated that said injuries had been caused by blunt weapon‑‑‑Mere fact that neither any blood‑stained clothes of the injured had been secured nor any blood‑stained earth had been taken into possession, would not make the prosecution case doubtful which stood proved conclusively by oral evidence coupled with. medical evidence‑‑‑Prosecution having succeeded in bringing home guilt to the accused, they had been rightly convicted and sentenced by the Trial Court under S.336/34, P.P.C.‑‑‑Other two accused had been assigned the role of causing a hatchet blow on the right leg of the injured as well as raising Lalkara‑‑‑Case against said accused had also been proved and they had been convicted under S.336/34, P.P.C. and sentenced to R.I. for 5 years each; they had also been convicted under S.337‑F/34, P.P.C. to undergo R.I. for two years each‑‑‑Said accused having already undergone major portion of substantive sentence, the sentence of imprisonment awarded to them was modified to one which they had already undergone.

Ch. Muhammad Ashraf Akhtar for Appellants.

Abdul Ghani for the State.

Mian Muhammad Tayyab Wattoo for the Complainant.

Date of hearing: 29th August, 2001.

2002 P Cr. L J 908

[Lahore]

Before Khawaja Muhammad Sharif and Mrs. Nasira Iqbal, JJ

GHULAM SARWAR alias BAGA‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.849 and Murder Reference No.277 of 1996, heard on 31st October, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑S.302‑‑‑Appreciation of evidence‑‑Self‑defence, right of ‑‑‑Sentence‑‑­ Deceased and accused received injuries with same Chhuri‑‑‑Both parties suppressed their role by not telling the truth‑‑‑Held, it was totally a case of self‑defence‑‑‑Sentence of accused was converted from S.302(b), P.P.C. to S. 302(c), P.P.C.‑‑‑Sentence which the accused had already undergone was treated to be sufficient by the High Court to meet the ends of justice in circumstances‑ ‑‑Sentence of amount of compensation to the tune of Rs.50,000 was maintained.

Mian Dilawar Mehmood for Appellant.

Mian Muhammad Bashir for the State.

M.A. Zafar for the Complainant.

Date of hearing: 31st October, 2001.

2002 P Cr. L J 912

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ASHRAF‑‑‑Petitioner

versus

DEPUTY INSPECTOR‑GENERAL OF POLICE, FAISALABAD RANGE, FAISALABAD and 3 others‑‑‑Respondents

Writ Petition No. 19244 of 2000, decided on 16th November, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 337‑F(v)/337‑F(iii)/337‑A(i)/337‑H(2)/34‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Accused not arrested in the case‑‑Direction for arrest of accused sought‑‑‑Case against accused had been registered in the year 1998 for having caused injuries, but none of them had been arrested by the police so far‑‑‑Senior Police Officers had in many investigations found the accused guilty‑‑‑One junior Police Officer to whom the investigation was subsequently entrusted had found one of the accused innocent‑‑‑Deputy Inspector‑General of Police had transferred the investigation mechanically without perusal of the record and without following the instructions issued by the Inspector­-General of Police‑‑‑Senior Superintendent of Police concerned was directed, in circumstances, by the High Court, to take up the matter himself and finalize the investigation within 30 days under his direct supervision by an officer not below the rank of D.S.P.‑‑‑S.S.P, was also directed to take action against the Police Officers who had not arrested even a single accused during two years after the registration of the case‑‑‑Constitutional petition was disposed of accordingly.

Ch. Abdul Ghaffar for Petitioner.

Ch. Muhammad Hanif Khatana, Addl. A.‑G.

Ch. Munawar Hussain for Respondent No.4.

2002 P Cr. L J 931

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD SHOIB---Petitioner

versus

THE STATE and another‑‑‑Respondents

Writ Petition No. 11867 of 1991, decided on 28th January, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Trial Court after convicting and sentencing one accused to death under S.302, P.P.C. and after signing the judgment had appended a note directing the S.H.O. to submit a challan against other accused (petitioner) in the Court‑‑‑Validity‑‑‑No provision of law sanctioned such course of action as adopted by the Trial Court‑‑‑Trial Court after having announced the judgment had become functus officio‑‑‑Trial Court, if after considering the material on record was convinced that the accused was involved in the murder, it could have summoned him to face the trial alongwith others‑‑‑Complainant was also free to file a complaint against the accused‑‑‑Trial Court had no jurisdiction to issue the impugned direction in the manner as had been done in the case‑‑‑Even otherwise, the view of the Trial Court about the presence and involvement of the accused in the case had been rejected by the High Court in the appeal filed by the co‑accused and as such no valid ground was available for passing the order for prosecution of accused‑‑‑Complainant, however, if still believed the involvement of accused in the murder, could even now file a complaint as there was no limitation in criminal cases‑‑‑Impugned order was set aside being without jurisdiction and the Constitutional petition was accepted accordingly.

Ch. Riasat Ali for Petitioner.

Ch. Muhammad Jahangir Wahla, A.A.‑G.

Muhammad Yousaf Chughtai for the Complainant.

Date of hearing: 6th July, 2001.

2002 P Cr. L J 988

[Lahore]

Before Asif Saeed Khan Khosa, J

Syed SHAMHORISH RIZWAN‑AL‑MURTAZA‑‑‑Petitioner

Versus

Syed ZAHEER‑UL‑HUSNAIN and 2 others‑‑‑Respondents

Criminal Application No.459 of 2001 related with Writ Petition No‑5267 of 2000 in Writ Petition No.279 of 1997, Civil Miscellaneous No. 1716 and Criminal Miscellaneous No. 117/Q of 2000 and Writ Petition No. 1220 of 1998, decided on 31st October, 2001.

Criminal Procedure Code (V of 1898)‑

‑‑‑‑Ss. 265‑K & 417‑‑‑Penal Code (XLV of 1860), Ss.392/34/148/149‑‑­Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17‑‑‑Constitution of Pakistan (1973), Art.z03‑G‑‑‑Appeal against acquittal‑‑‑Maintainability‑‑‑Allegations levelled by the complainant against the accused included an allegation qua the offence under Hudood laws and the accused had been summoned by the Trial Court to face a trial on the basis of the same allegations and a charge had been framed against the accused which also had included a head under the Hudood laws‑‑‑Appeal before the High Court was not maintainable as the same ought to have been filed before the Federal Shariat Court‑‑­Would be anomalous and absurd to hold that recording of an acquittal of one of the accused persons before the framing of the charge in the case could be challenged before the High Court‑‑‑Any subsequent acquittal or conviction to be recorded viz a viz the other accused persons would be challengeable only before the Federal Shariat Court‑‑­Memorandum of appeal was returned to the appellant in circumstances.

Muhammad Afzal v. The State and another PLD 1989 Lah. 272; Muhammad Hanif and others v. Mst. Shams Mai 1986 PCr.LJ 746; Muhammad Iftikhar v. The State 1991 PCr.LJ 2069; The State v. Sher Abbas Khan and 2 others 1990 PCr.LJ 1702; Sajjad Hussain and 2 others v. The State PLD 1989 FSC 50; Allah Rakha and others v. Federation of Pakistan and others PLD 2000 FSC 1; Haji Pir Jan v. Muhammad Yaqoob and 9 others 1997 PCr.LJ 1236; Nizam‑ud‑Din v. The State 1999 PCr.LJ 1761; Muhammad Abbas and another v. The State 1984 SCMR 129 and Ghulam Abbas v. The State 1988 PCr.LJ 275 ref.

Petitioner in person.

Abdul Sattar Goraya for Respondent No.1 (on watching brief).

2002 P Cr. L J 992

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeem Ullah Khan Sherwani, JJ

IKRAM ULLAH and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.985 and Murder Reference No.340/T of 1999, heard on 30th October, 2001:

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/379/404/411/34/149‑‑Anti‑Terrorism Act (XXVII of 1997), Ss.6 & 7‑‑‑Appreciation of evidence‑‑‑Case against the accused having been promptly registered in the police station, there was no occasion for deliberation and consultation‑‑ ‑Occurrence had taken place in broad daylight and no previous background of enmity existed between the parties‑‑‑Two assailants/accused were named in the F.I.R. while the description of three other accused was also given ‑‑‑Immediately after the arrest of three unknown accused, identification parade was held wherein they were identified by the witnesses‑‑‑Injured prosecution witnesses had not only identified the accused, but also had stated the roles played by them during the occurrence before the police and the Trial Court‑‑­Number of the accused coincided with the number of the injuries received by two deceased and three injured prosecution witnesses ‑‑‑Eye­witnesses were most natural witnesses‑‑ ‑Ocular account was corroborated by the medical evidence‑‑‑Conduct of the complainant at the time and place of occurrence was natural and probable‑‑‑Empties of a kalashnikov and rifles recovered from the spot matched with the weapons got recovered by the accused‑‑‑Motive of occurrence had fully been proved‑­Identification parade was conducted in accordance with rules and regulations and the eye‑witnesses had stated the role of every accused at the time of identification parade‑‑‑Cross‑version as pleaded by the accused proved to be absurd and improbable which did not appeal to reason, whereas the version put forth by the prosecution seemed to be more plausible and nearer to the truth‑‑‑Where automatic weapons like kalashnikov and rifle had been used, case against the accused fell within the ambit of terrorism act and the Trial Court was fully empowered to try the case‑‑‑All the five accused, while armed with fire‑arms having formed an unlawful assembly and in furtherance of their common object having committed the murder of one parliamentarian and another person and injured three prosecution witnesses which was definitely an act of terrorism and also created panic in the society‑‑­No mitigating circumstance existed to award lesser sentence to the accused‑‑‑Death sentence awarded to the accused was confirmed.

PLJ 1998 SC 1229; 1968 PCr.LJ 791; 1971 PCr.1J 205; PLD 1971 SC 46; PLD 1984 SC 276 and 1985 SCMR 181 ref.

(b) Criminal trial‑‑‑

‑‑‑‑Witness‑‑‑Police officials are as good and reliable witnesses as any other public witness.

S.M. Latif Khosa, Inayatullah Cheema, Ch. Muhammad Hussain Chhachar, Mian Arshad Ali Mehr, Tariq Jamil and M.D. Tahir for Appellants.

Mehmood H. Mirza for the State.

Ijaz Hussain Batalvi and Akhtar Ali Kureshi for the Complainant.

Dates of hearing: 29th and 30th October, 2001.

2002 P Cr. L J 1003

[Lahore]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD IQBAL and another‑‑‑Petitioners

Versus

IRSHAD AHMAD and 2 others‑‑‑Respondents

Criminal Miscellaneous No.144/Q of 2001, decided on 1st November, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 324/34‑‑‑Criminal Procedure Code (V of 1898), Ss.249‑A, 497 & 561‑A‑‑‑Quashing of proceedings‑‑‑Compromise was effected at bail stage with the injured without mention of receipt of any amount as Badl­-e‑Sulh ‑‑‑Such compromise was to the extent of bail only and could not be made basis for acquittal of accused under S.249‑A, Cr.P.C.

Syed Sabir Hussain Shah and another v. Syed Iftikhar Hussain Shah and another 1995 MLD 563 and Syed Iftikhar Hussain Shah v. Syed Sabir Hussain Shah 1998 SCMR 466 distinguished.

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

‑‑‑‑Ss.249‑A, 497 & 561‑A‑‑‑Penal Code (XLV of 1860), S.324/34‑‑­Quashing of proceedings‑‑‑Compromise‑‑‑Trial Court cannot accept application under S.249‑A, Cr.P.C., without calling the complainant and other party merely on the basis of compromise filed at the stage of bail‑‑­Trial Court has to satisfy itself that compromise is effected between the parties with free‑will and consent and if "Badl‑I‑Sulh" has been received that has already been verified by the Court‑‑‑Trial Court cannot acquit accused in slipshod manner without satisfying itself about the authentication of compromise between the parties.

Muhammad Rafique Waraich for Petitioners.

Ch. Ali Akbar Bhinder for Respondents.

Imtiaz Ahmad Chaudhry for the State.

2002 P Cr. L J 1006

[Lahore]

Before Asif Saeed Khan Khosa, J

MUHAMMAD JAN and 3 others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.631 and Criminal Miscellaneous Applications Nos. 1, 2 and 492/M of 2001, decided on 13th September, 2001.

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

‑‑‑‑S. 7‑‑‑Appeal‑‑‑Condonation of delay‑‑‑Appeal against conviction before High Court without surrendering of accused‑‑‑Accused were fugitive from law and had already been declared proclaimed offenders‑‑­Condonation of delay in filing appeal was refused in circumstances.

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

‑‑‑‑S. 7‑‑‑Fugitive from law‑‑‑Right of appeal, forfeiture of‑‑‑Accused who were convicted by Trial Court had filed appeal against conviction without surrendering themselves‑‑‑Fugitive from law not only‑ lost his right of audience but also forfeited his right of appeal‑‑‑Accused had refused to surrender and go to jail even after reassurance of High Court regarding condonation of delay and admission of their appeal for regular hearing‑‑‑Accused having scant regard for law, judicial process and Courts, refusal of Court to admit appeal was essentially a result which accused had themselves opted for.

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

‑‑‑‑Ss. 6 & 7‑‑‑Conviction in absentia‑‑‑Contention was that conviction of accused in absentia by Trial Court was illegal and void, therefore, he need not submit to normal course of law‑‑‑Validity‑‑‑Even a void order or judgment was kind of illegal order or judgment which needed to be formally set aside through normal legal channel and the same could not be left to a party to ignore the same as nullity‑‑‑Accused, in the present case, had consciously chosen not to follow the normal course of law, thus, responsibilities for its consequences had to be shouldered by them.

(d) Void order‑‑‑

‑‑‑‑ Void order/judgment is a kind of an illegal order/judgment‑‑‑Party to such order cannot be allowed to ignore the same as nullity, rather the same needs to be set aside through normal legal channels.

Syed Muhammad Asad Abbas for Appellants.

Tariq Mehmood for Petitioner (in Criminal Miscellaneous No.492/M of 2001).

2002 P Cr. L J 1009

[Lahore]

Before Khawaja Muhammad Sharif, J

LIAQAT ALI‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.243 of 2000, heard on 2nd November, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 161/420/468/471/209/109/204‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Criminal Procedure Code (V of 1898), S.417‑‑­Accused had produced forged Matriculation Certificate in respect of his date of birth to secure employment‑‑‑Accused was sentenced under S.5(2) of Prevention of Corruption Act, 1947 by Trial Court‑‑‑Case of accused though stood proved under Ss.468 & 471, P.P.C., but Trial Court failed to give reasons for its findings of acquittal of accused on these counts‑‑‑High Court could not convict accused under Ss.468 & 471, P‑P.C. in absence of appeal against acquittal‑‑‑Conviction under S.5 (2) Prevention of Corruption Act, 1947 was maintained.

1985 PCr.LJ 1015; 1985 PCr.LJ 2764; 1986 PCr.LJ 811 and NLR 1984 Criminal Cases Lahore 748 ref.

Malik Muhammad Jameel Awan for Appellant.

Muhammad Hanif Khatana, Addl. A.‑G. for the State.

Date of hearing: 2nd November, 2001.

2002 P Cr. L J 1015

[Lahore]

Before Shaikh Abdur Razzaq and Bashir A. Mujahid, JJ

MULAZIM HUSSAIN alias DR. KASHIF alias DR. ABDALI alias NADEEM and 8

others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.655 of 1999, decided on 31st October, 2001.

(a) Penal Code (XLV of 1860)‑ ‑

‑‑‑‑Ss. 302/324/34/120‑B/109‑‑‑Anti‑Terrorism Act (XXVII of 1997) S.7‑‑‑Appreciation of evidence‑‑‑Investigating Officer had failed to collect any evidence of alleged conspiracy as well as extra judicial confession of the accused‑‑‑When subsequently investigation was entrusted to other Investigating Officer, he succeeded in securing evidence regarding conspiracy as well as extra judicial confession from the accused‑‑‑Witnesses had been joining the investigation long ago, but neither the factum of conspiracy nor of extra judicial confession could have been brought into notice of previous Investigating Officer and the witnesses disclosed all said so‑called fact of conspiracy and extra judicial confession as soon as investigation was given to other Investigating Officer‑‑‑Prosecution had failed to bring on record any direct evidence connecting the accused with the commission of offence and had tried to connect the accused by procuring evidence of conspiracy as well as of extra‑judicial confession‑‑‑Such evidence had lost its evidentiary value when witnesses had remained mum for one month, eight days to two months in bringing said facts to the notice of first Investigating Officer‑‑­None of the prosecution witnesses appeared of his own before the Investigating Officer, but all of them were produced by the brother of the deceased which had given 'further fatal blow to the prosecution stand and it appeared that the same had been planted against the accused‑‑­Main role had been attributed to, only two accused who had been convicted, but one had been killed in a police encounter and other accused was at large‑‑‑Prosecution having failed to bring home guilt of the accused beyond reasonable doubt, the accused were acquitted of the charge.

1999 SCMR 697 ref.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 37‑‑‑Confess on‑‑‑Extra judicial confession‑‑‑Evidence pertaining to extra‑judicial confession was of weaker type of evidence and could not be relied upon without any independent corroboration.

Mian Muzaffar Ahmad, Muhammad Hussain Chhachhar, Ch. Asghar Ali and Muhammad Ashraf Wahlah for Appellants.

Mrs. Salma Malik for the State.

Kh. Sultan Ahmad for the Complainant.

Date of hearing: 31st October, 2001.

2002 P Cr. L J 1024

[Lahore]

Before Bashir A. Mujahid and Sheikh Abdur Razzaq, JJ

HASHAM ALI ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.13/J and Murder Reference No.42 of 1997, heard on 8th November, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑‑Ss. 302/325‑‑‑Appreciation of evidence‑‑‑Benefit of doubt‑‑‑Accused had received multiple knife injuries‑‑‑Nature and number of injuries on person of accused could not be self‑inflicted‑‑‑ "Chhuri” and a knife stained with blood recovered from the spot remained unexplained by prosecution‑‑‑Door allegedly broken at scene of crime was not taken into possession nor inspected by the Investigating Officer‑‑‑Such facts created serious doubt about manner of occurrence as alleged by the prosecution‑‑‑Doubt on the prosecution version entitled accused to benefit him in matter of sentence‑‑‑Death sentence was converted to life imprisonment in circumstances.

1993 SCMR 1660 ref.

Amjad Ali Chatha for Appellant (on State expenses).

Iram Sajjad Gul for A.‑G. for the State.

Date of hearing: 8th November, 2001.

2002 P Cr. L J 1031

[Lahore]

Before Shaikh Abdur Razzaq, J

ALLAH RAKHA‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent.

Criminal Miscellaneous No. 150/B of 2001/BWP, decided on 2nd August, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/337/34‑‑‑Bail grant of‑‑‑Accused had been attributed two simple injuries on non‑vital part of the body of the prosecution witness but none on the person of the deceased‑‑‑Accused party had also received injuries, but contents of F.I.R. did not disclose that fact ‑‑‑Accused‑who was in jail since long was an old man of 77 years of age‑‑‑Case against the accused requiring further inquiry, he was admitted to bail.

1999 SCMR 1320 Mumtaz Hussain and 6 others v. The State 1996 SCMR 1125; Abdul Aziz v. The State 1996 SCMR 1693; Meeran Bux v. The State and another PLD 1989 SC 347; Mozal and 11 others v. The 83 PCr.LJ 64; Nasir Muhammad Wassan and another v. The State 1992 SCMR 501; Nazar Muhammad v. The State and another PLD 1978 SC 236; Tanveer Ahmed v. Muhammad Saqib and 2 others PLC 1994 SC 88; Liaqat Ali v. The State PLD 1994 SC 172 and Allah Ditta and others v. The State 1990 SCMR 307 ref.

A.R. Tayyab for Petitioner.

Muhammad Sharif Bhatti for the Complainant.

Abdul Ghani for the State.

2002 P Cr. L J 1033

[Lahore]

Before Sheikh Abdur Razzaq and Bashir A. Mujahid, JJ

THE STATE‑‑‑Appellant

Versus

WALAYAT ‑‑‑Respondent

Criminal Appeal No.47 of 1992, heard on 7th November, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Criminal Procedure Code (V of 1898), S.417 ‑‑‑ Appeal against acquittal‑ ‑‑Appreciation of evidence‑‑‑Material discrepancies existed in the statements of eye‑witnesses‑‑‑Eye‑witnesses were residents of another district and had failed to show their presence, at the place of occurrence at the relevant time‑‑‑Complainant who was real brother‑of the deceased could not prove the fact that deceased was taken to the hospital by him in injured condition‑‑‑Recovery of weapon of offence was also not proved by the prosecution‑‑‑No misreading or illegality or infirmity of the reason was found in the judgment of Trial Court‑‑‑Appeal against acquittal was dismissed in circumstances.

Mrs. Salma Malik, Asstt. A.‑ G. for the State.

Nemo for Respondent.

Date of hearing: 7th November, 2001.

2002 P Cr. L J 1035

[Lahore]

Before Khawaja Muhammad Sharif, J

Mst. ZAHIDA BIBI and others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1 and Criminal Appeal No.921 of 2001, decided on 12th November, 2001.

Criminal Procedure Code (V of 1898)---

----Ss. 426 & 497(1)---Penal Code (XLV of 1860), S.302--Suspension of sentence and grant of bail---Section 426, Cr.P.C. is controlled and provision of S.497(1), Cr.P.C.---Accused being a children, younger being 3 years old, needed help of the accused being their mother, to bring them up---Sentence of the accused was suspended and she` was admitted to bail in circumstances.

PLD 1971 SC 617 ref.

Rana Shakeel Ahmad Khan for Petitioners.

N.A. Butt for the Complainant.

2002 P Cr. L J 1037

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

NIAMAT ALI‑‑‑Appellant

Versus

GHULAM ABBAS and others‑‑‑Respondents

Criminal Appeal No.601 of 1994, heard don 21st November, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Criminal Procedure Code (V of 1898), S.417‑‑‑Appeal against acquittal‑ ‑‑Accused were declared innocent in successive police investigations and were acquitted by the Trial Court after proceedings in a private complaint‑‑‑Occurrence was an unwitnessed one‑‑‑Weapons of offence were not recovered from the possession of the accused‑‑­Previous enmity was admitted by the complainant‑‑‑Witnesses were inimical against the accused and‑ their statements had not been corroborated from any other independent source‑‑‑Conclusions arrived at by the Trial Court were just, proper and up to the norms and standard laid down by superior Courts‑‑‑Appeal against acquittal was dismissed in circumstances.

Nemo for Appellant.

Sardar Khuram Latif Khan Khosa for Respondents.

Malik Muhammad Jehangir for A.G. for the State.

Date of hearing: 21st November, 2001.

2002 P Cr. L J 1039

[Lahore]

Before Zafar Pasha Chaudhry, J

MUHAMMAD JAHANGIR‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous, Application No. 2762/B of 2001, decided on 7th June, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, grant of‑‑­Investigating Officer, during investigations observed that accused was not present at the time of occurrence and murder took place at his instance‑‑‑Witnesses had supported the prosecution version‑‑‑Medical report also supported the ocular account‑‑‑Bail was refused to the accused in circumstances.

N.A. Butt for Petitioner.

Ch. Muhammad Ayub for the State.

2002 P Cr. L J 1111

[Lahore]

Before Khawaja Muhammad Sharif, J

SAJID HUSSAIN and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1468 of 2000, heard on 2nd April, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 395‑‑‑Appreciation of evidence‑‑‑No identification parade was held in the case‑‑‑Rifle was not recovered on the pointation of accused, nor the same was produced before the Trial Court‑‑‑No recovery memo was available on record‑‑‑No evidence was available on record to conned the accused with the commission of the offence‑‑‑Accused was acquitted in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 395‑‑‑Appreciation of evidence‑‑‑Accused had been duly identified by the eye‑witnesses during identification parade in jail‑‑‑No previous background of enmity existed between the parties so as to implicate the accused in a false case‑‑‑Tape‑recorder had been recovered at the instance of accused‑‑‑Description of accused had been given in the F.I.R.‑‑‑Ocular testimony was believable‑‑‑Conviction and sentence of accused were upheld in circumstances.

Sh. Naveed Shehryar for Appellants.

Ch. Nazir Ahmad for the State.

Date of hearing: 2nd April, 2002.

2002 P Cr. L J 1114

[Lahore]

Before Ali Nawaz Chowhan and M. Javed Buttar, JJ

ZAHEER alias FAUJI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.126/B of 2001, decided on 28th February, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

-‑‑S. 497-‑‑Penal Code (XLV of 1860), Ss.302/392/34 ‑‑‑ Anti‑Terrorism Act (XVII of 1997), Ss.6 & 7‑‑‑Bail, grant of‑‑‑Evidence ‑vas in the nature of last‑seen evidence of prosecution witnesses who saw the deceased before his death in the company of the accused‑‑‑Prima facie case was made out against the accused for his role in planning the case though he was not seen at the place of occurrence‑‑‑Accused could not be enlarged on bail in circumstances.

Qazi Zia Zahid for Petitioner.

Tariq Bilal for the State.

2002 P Cr. L J 1116

[Lahore]

Before Khawaja Muhammad Sharif, J

MUZAMMAL IRFAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.985 and Criminal Revision No.517 of 2000, heard on 22nd March, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Complainant and his eye­witnesses had not approached the Court with clean hands‑‑‑Initially the case of the complainant was that the deceased had died due to accidental death while cleaning his pistol‑‑‑Same stand had been taken by the accused in his statement recorded under S.342, Cr.P.C. and his version seemed to be more plausible, convincing and nearer to the truth‑‑‑Accused had been found innocent during investigation by Police Officer and his first version before him was that he was innocent and the case was of accidental fire‑‑‑Prosecution had failed to prove its case beyond any shadow of doubt‑‑‑Accused was acquitted accordingly.

Raja Muhammad Anwar with Mrs. Mehrin Anwar Raja and Malik Noor Muhammad Awan for Appellant.

Muhammad Akram Nasir for the State.

Masood Mirza for the Complainant.

Date of hearing: 22nd March, 2002.

2002 P Cr. L J 1120

[Lahore]

Before Shaikh Abdur Razzaq and Bashir A. Mujahid, JJ

GHULAM HUSSAIN alias PATEELI and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.41 of 1996, heard on 1st November, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/307/34‑‑‑Appreciation of evidence‑‑‑Motive of the occurrence was considered to be double‑edged weapon by the Trial Court as the same was for the commission of crime as well as reasons for false implication of the opponents‑‑‑Evidence of motive was not furnished by any independent witness‑‑‑Complainant, who was close relative of the deceased, was neither injured in the occurrence, nor he had accompanied the injured to the hospital nor escorted the dead bodies‑‑‑Presence of complainant at the spot, in circumstances, was rightly found doubtful by the Trial Court‑‑‑All the three eye‑witnesses who hailed "from different localities situated at about six miles from the place of occurrence were not natural witnesses of the occurrence, but proved to be interested and inimical‑‑‑Ocular account furnished by said witnesses required independent corroboration‑‑‑Ocular account was neither corroborated by the motive nor by the medical evidence as no specific injury was attributed to any of the assailants including the accused‑‑‑No weapon of offence having been recovered from the accused, recovery of empties from the spot was immaterial‑‑‑Accused had not absconded and the prosecution could not prove his abscondence during the trial as the statements of the eye‑witnesses in that respect, remained uncorroborated from any independent source‑‑‑Accused was entitled to acquittal on the ground that the case having not been proved against all or anyone of the accused by the prosecution evidence, the benefit of doubt was to be extended to them‑‑‑Conviction and sentence awarded to the accused by the Trial Court were set aside in circumstances.

Rehmat and others v. The State PLD 1959 SC (Pak.) 109; Abdul Rauf v. The Crown 1971 SCMR 256 and Wali Muhammad v. The State PLD 1973 Pesh. 135 ref.

Ijaz Hussain Batalvi and Sultan Ahmad Khawaja for Appellant.

Muhammad Sharif Cheema for the State.

Date of hearing: 1st November, 2001.

2002 P Cr. L J 1126

[Lahore]

Before Khawaja Muhammad Sharif, J

MUHAMMAD TUFAIL‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1077 and Criminal Revision No.497 of 2000, heard on 29th March, 2002.

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

‑‑‑‑S. 302(b)/34‑‑‑Appreciation of evidence‑‑‑Motive for the occurrence alleged by the prosecution was not proved‑‑‑Prosecution story was unnatural and unconvincing‑‑‑Eye‑witnesses including the complainant were fabricated witnesses who were not present on the spot and had not seen the occurrence‑‑‑Medical evidence did not support the prosecution version‑‑‑No crime‑empty was recovered from the spot‑‑‑Despite the occurrence having taken place in thickly‑populated area surrounded by houses, no witness from the locality was either cited or produced by the prosecution‑‑‑Mere abscondence of accused was not enough for conviction of accused in the absence of other incriminating evidence against them‑‑‑Case of prosecution was replete with doubts benefit of which was given to the accused and they were acquitted accordingly.

Rasool Muhammad v. Asal Muhammad and 3 others 1995 SCMR 1373 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Abscondence‑‑‑Abscondence of accused has no relevancy if other incriminating evidence is not available against him on record.

Rasool Muhammad v. Asal Muhammad and 3 others 1995 SCMR 1373 ref.

Malik Allah Yar Khan for Appellant.

Rao Muhammad Khan for the Complainant.

Miss Tasneem Amin for the State.

Date of hearing: 29th March, 2002.

2002 P Cr. L J 1132

[Lahore]

Before Ijaz Ahmad Chaudhry, J

ALLAH BAKHSH‑‑‑Petitioner

Versus

SIDDIQUE and 12 others‑‑‑Respondents

Criminal Petition for Special Leave to Appeal No.3 of 1995, heard on 1st November, 2001.

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

‑‑‑‑S. 417(2)‑‑‑Penal Code (XLV of 1860), Ss.365/452/148/149‑‑‑Appeal against acquittal‑‑‑Petitioner/complainant had widened his net in order to involve 12 persons in an occurrence in which no injury had been received by him and nothing was on record to' corroborate his statement‑‑­Complainant was inimical to the accused persons due to the criminal and civil litigation pending between the parties‑‑‑Complainant's statement, 'in circumstances, had rightly been discarded by the Trial Court‑‑‑Statements of the prosecution witnesses were of no help to the complainant as they were not the witnesses of, the locality and they being very closely related to the complainant could not be considered as disinterested persons and no weight could be given to their statements‑‑‑Complainant having failed to prove the case against the accused, Trial Court had rightly acquitted the accused and judgment of the Trial Court could not be interfered with in appeal.

The State v. Muhammad Sharif and 3 others 1995 SCMR 635; Muhammad Aslam v. The State PLD 1992 SC 254; Muhammad Usman and 2 others v. The State 1992 SCMR 489 and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others 1998 SCMR 1281 ref.

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

‑‑‑‑Ss.410 & 417‑‑‑Appraisal of evidence in appeal against acquittal is different than appeal against conviction.

Muhammad Sarwrar Awan for Petitioner.

Mian Amanullah Choghatta for the State.

Date of hearing: 1st November, 2001.

2002 P Cr. L J 1136

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeemullah Khan Sherwani, JJ

MUHAMMAD YOUNAS‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 197/J, 198/1, 199/1 and 200/1 of 2000 and Murder Reference Nos. 484/T of 1999, heard on 1st April, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b)/34, 460/34 & 411‑‑‑Appreciation of evidence‑‑‑F. I. R. was lodged belatedly‑‑‑Nobody was named in the F.I.R. as accused‑‑‑No motive was given in the F.I.R.‑‑‑No independent witness from the locality was examined by the prosecution‑‑‑Eye‑witnesses had not seen the accused causing any injury to the deceased and they had only seen the accused while armed with fire‑arms and hatchet which did not prove them to be actual culprits‑‑‑Eye‑witnesses did not go to the police station to lodge the report, nor did they go to the place of occurrence‑‑­Complainant had heard the noise of only one fire‑shot whereas three crime‑empties had been recovered from the spot‑‑‑Medical evidence did not support the prosecution version‑‑‑Prosecution had failed to examine the witness who had informed the complainant‑‑‑Crime‑empties were not sent to the Fire Arms Expert alongwith the weapons of offence allegedly recovered from the accused for comparison‑‑‑Articles recovered from the accused were of general nature‑‑‑Nothing was available on record to connect the accused with the crime‑‑‑Accused were a,‑quitted in circumstances.

Qazi Muhammad Latif for Appellant (at State expenses).

Kh. Shaukat Ali for the State.

Date of hearing: 1st April, 2002.

2002 P Cr. L J 1140

[Lahore]

Before Sheikh Abdur Razzaq, J

SAJID‑UR‑REHMAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 830 of 1998, heard on 30th October, 2001:

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)‑‑‑Appreciation of evidence‑‑‑Statements of prosecution witnesses showed that the, accused caught hold of the deceased from her hair and then threw her in the canal and she died‑‑‑Dead body of the deceased was subjected to autopsy and doctor who conducted the same had deposed that her death was caused by drowning‑‑‑Even the medical evidence had corroborated the ocular account furnished by the prosecution witnesses ‑‑‑F.I.R. was promptly lodged and both the complainant and the eye‑witness had corroborated prosecution version‑‑­Both the witnesses were subjected to lengthy cross‑examination, but without any success‑‑Prosecution version stood corroborated not only by oral evidence, but also by the medical evidence‑‑‑Trial Court, in circumstances, had rightly convicted and sentenced the accused and judgment of the Trial Court passed in accordance with law, could not be interfered with in appeal.

Munir Ahmad Bhatti for Appellant

Mrs. Tasneem Amin for the State.

Date of hearing: 30th October, 2001.

2002 P Cr. L J 1144

[Lahore]

Before Khawaja Muhammad Sharif, J

SAJID ULLAH and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.433, 459 and Criminal Revision No.215 of 1998, heard on 26th October, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑Ss. 302/34/109‑‑‑Appreciation of evidence‑‑‑F.I.R. was promptly lodged‑‑‑Prosecution witnesses had deposed that one of the accused had caused two injuries on the arm of the deceased, but only one injury was found which was muscle deep on front of right arm ‑‑‑Co‑accused being real brother of main accused who was attributed four injuries, the possibility of false involvement of the co‑accused, could not be ruled out‑‑‑Both the eye‑witnesses had got no previous enmity against the accused‑‑‑Occurrence had taken place in front of the house of one of the prosecution witnesses and other prosecution witness was mother‑in‑law of said witness‑‑‑Presence of said witnesses at the time and place of occurrence, was natural‑‑‑Both said witnesses had got no previous enmity against the accused‑‑‑Electric light at place of occurrence at relevant time not only had been shown in the site plan, but had also been mentioned in the F.I.R.‑‑‑Parties being known to each other the case could not be said to be of mistaken identity‑‑‑Possibility of false implication of the co­-accused, could not be ruled out because recoveries though were effected from both the accused, but recovery from the co‑accused was proved to have been planted upon him‑‑‑Mere recovery was of no help to the prosecution case as it was only a corroborative evidence‑‑‑Court had to see whether the ocular account was corroborated by the medical evidence or not‑‑‑Case against the accused was not totally a case of false implication because in his case ocular account was corroborated by the medical evidence‑‑‑Minor discrepancies in such ‑ like cases always occur‑‑‑Time between the post‑mortem and the injuries, tallied with the time of occurrence‑‑‑Mere relationship of witnesses with the deceased was of no significance when the ocular account was corroborated by the medical evidence‑‑‑Case against the accused having fully been proved beyond any shadow of doubt, conviction and sentence recorded against ‑him by the Trial Court were maintained ‑‑‑Co‑accused was attributed only a muscle deep injury on the person of the deceased which could also have been caused by the accused‑‑‑Conviction and sentence recorded against the co‑accused by the Trial Court were set aside extending him benefit of doubt.

(b) Criminal trial‑‑‑

‑‑‑‑Recovery‑‑‑Evidentiary value‑‑‑Mere recovery is of no help to prosecution case‑‑‑Recovery is only corroborative evidence.

M. Asghar Rokhari and Masood Mirza for Appellants.

M.M. Hanif Saleemi for the State.

M.A. War for the Complainant.

Date of hearing: 26th October, 2001.

2002 P Cr. L J 1149

[Lahore]

Before Ali Nawaz Chowhan, J

AFRAZ AKBAR‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 24 and connected Criminal Revision No. 14 of 1999, decided on 11th March, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 302(c)‑‑‑Appreciation of evidence‑‑‑Eye‑witnesses though related to the deceased had no enmity or personal reasons for false involvement of accused in the case‑‑‑Accused had not furnished any alternate version in his statement recorded under S.342, Cr.P.C.‑‑­Evidence regarding motive and disclosures made by accused in his extra­judicial confession had immediately came on record leaving a minimum possible chance for substitution‑‑‑Deceased, however, was not a "Masoom‑ud‑Dam" being not a person of good morality and had been a catalyst for provoking the commission of offence‑‑‑Conduct of the deceased must have upset the accused tremendously‑‑‑Accused by giving a single fatal "Chhuri" blow at .the back chest of deceased had not acted in a barbaric way, after his failure in stopping the deceased from carrying on illicit relations with his wife‑‑‑Killing over questions of family honour on provocation was an accepted extenuating ground for grant of lesser punishment‑‑‑Conviction of accused under S.302(b), P:P.C. was consequently altered to S.302(c), P.P.C. and his sentence of imprisonment for life was reduced to nine years' R.I. in circumstances with benefit of S.382‑B, Cr.P.C.

Ali Sher v. The State 1999 PCr.LJ 682; Ghulam Yasin and others v. The State PLD 1994 Lah. 392; Muhammad Ishaq v. The State 1998 PCr.LJ 1110; Sardar Muhammad v. The State 1997 MLD 3045 and Ghulam Haider v. The State 1996 PCr.LJ 2021 ref.

Ch. Afrasiab Khan for Appellant.

Qazi Muhammad Amin for the Complainant.

Haji Miran Malik for the State.

Date of hearing: 11th March, 2002.

2002 P Cr. L J 1208

[Lahore]

Before Asif Saeed Khan Khosa, J

BASHIR AHMAD and another‑‑‑ Petitioners

versus

THE STATE and 2 others‑‑‑Respondents

Criminal Revision No.71 of 2001, heard on 23rd January, 2002

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

‑‑‑‑S. 204‑‑‑Issue of process‑‑‑Provisions of S.204, Cr.P.C, do not require availability of legally admissible evidence for the purpose of issuance of process against an accused person‑‑‑All that is required at such stage is the material upon which an opinion can be formed by the Court regarding availability of sufficient ground for proceeding against an accused person‑‑‑Statement made by a witness in his examination‑in-­chief can suffice for such purpose as such a statement may furnish sufficient ground or material for formation of an opinion by the Court for the purposes of S.204, Cr.P.C.

Raja Khushbakhtur Rehman and another v. The State 1985 SCMR 1314; Mehar Khan v. Yaqub Khan 1981 SCMR 267; Waqarul Haq alias Mithoo and another v. The State PLD 1988 Lah. 336; Bahadur v, State PLD 1985 SC 62; Muhammad Yaqub v. The State PLD 1998 Lah. 523; Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63; Yahya Bakhtiar, Advocate v. The State through the Secretary, Ministry of Interior, Government of Pakistan, Islamabad PLD 1983 SC 291; Muhammad Ibrahim and others v. Qudrat Ullah Ruddy and others PLD 1986 Lah. 256; Muhammad Khan v, Haji Ghulam Qadir Brohi and another 1996 PCr.LJ 99; Laws of England, 3rd Edn. Vol. 15, p.443, para.800; Monir's Law of Evidence (Pakistan Edn.) (1974), Vol. II, p.1476; Zahid Anwar Wahla v. Muhammad Amin and another 1993 PCr.LJ 1585 and Shahid Pirzada and another v. The State 1999 YLR 2678 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/109/34‑‑‑Criminal Procedure Code (V of 1898), Ss.204 & 439‑‑‑Process issued by Trial Court to accused to face trial ‑‑‑Validity‑‑­Trial Court had alluded to the contents of the F.I.R. lodged by the complainant, the statements made by the eye‑witnesses before the police under S. 161, Cr.P.C. and the statement made by the complainant before the Court itself as prosecution witnesses and had then expressly concluded that in its opinion sufficient material was available to proceed against the accused‑‑‑Although the complainant was not so far subjected to cross‑examination before the Trial Court, yet such a statement could qualify to be a material for the purposes of 5.204, Cr.P.C.‑‑‑Trial Court had already lawfully taken cognizance of the offence and formed, an opinion with regard to availability of sufficient ground for proceeding against the accused on the basis of the said material and such exercise of jurisdiction by the Trial Court was not open to any legitimate exception‑‑­Revision petition against the impugned order was dismissed accordingly.

Raja Khushbakhtur Rehman and another v. The State 1985 SCMR 1314; Mehar Khan v. Yaqub Khan 1981 SCMR 267; Waqarul Haq alias Mithoo and another v. The State PLD 1988 Lah. 336; Bahadur v. State PLD 1985 SC 62; Muhammad Yaqub v. The State PLD 1998 Lah. 523; Safdar Ali v. Zafar Iqbal and others 2002 SCMR 63; Yahya Bakhtiar, Advocate v. The State through the Secretary, Ministry of Interior, Government of Pakistan, Islamabad PLD 1983 SC 291; Muhammad Ibrahim and others v. Qudrat Ullah Ruddy and others PLD 1986 Lah. 256; Muhammad Khan v. Haji Ghulam Qadir Brohi and another 1996 PCr.LJ 99; Laws of England, 3rd Edn. Vol. 15, p.443; para.800; Monir's Law of Evidence (Pakistan Edn.) (1974), Vol. II, p.1476; Zahid Anwar Wahla v. Muhammad Amin and another 1993 PCr.LJ 1585 and Shahid Pirzada and another v. The State 1999 YLR 2678 ref.

Khadim Nadeem Malik for Petitioners.

Ch. Pervaiz Aftab for Respondent No‑3., Muhammad Qasim Khan, Asstt. A.‑G. for the State.

Date of hearing: 23rd January, 2002.

2002 P Cr. L J 1226

[Lahore]

Before Raja Muhammad Sabir, J

MUHAMMAD ALI ‑‑‑Appellant

Versus

THE STATE‑ ‑‑Respondent

Criminal Appeal No.26 of 2000, heard on 6th May, 2002.

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

‑‑‑‑Ss. 10(3) & 11‑‑‑Kidnapping and Zina‑bil‑Jabr‑‑‑ Appreciation of evidence‑‑‑Defence plea of accused with regard to a bargain of residential plot struck by complainant with property dealer wherein the accused had played a role of middle man, was not raised by accused at the time of his arrest‑‑‑Such plea thus was an afterthought and concoction to save himself from consequence of crime‑‑‑One of the eye‑witnesses who was a neutral and reliable one‑‑‑Accused had threatened the said witness, broke her tooth and gave her a beating to resile from her statement, but despite all that she had supported prosecution case and her testimony was corroborated by medical evidence‑‑‑Lady doctor who examined victim girl had confirmed that she was subjected to sexual intercourse‑‑‑All prosecution witnesses had no motive to falsely implicate the accused‑‑‑Prosecution witnesses were subjected to lengthy cross­examination, but their testimony had not been shaken in any manner‑‑­Prosecution had successfully proved its case against accused through reliable evidence of prosecution witnesses‑‑‑Judgment of Trial Court based on proper appreciation of evidence, could not be interfered with‑‑­Contention of accused that quantum of sentence awarded to him being severe, same could be reduced, was repelled in view of tender age of victim and brutal manner in which accused had kidnapped and subjected her to Zina‑bil‑Jabr.

Ch. Pervaiz Aftab for Appellant.

Masood Sabir for the State.

Date of hearing: 6th May, 2002.

2002 P Cr. L J 1231

[Lahore]

Before Tassaduq Hussain Jilani and Mian Saqib Nisar, JJ

Ch. ZULFIQAR ALI ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision No.361 of 2002, heard on 9th May, 2002.

National Accountability Bureau Ordinance (XVIII of 1999)‑‑

‑‑‑‑S. 14‑‑Criminal Procedure Code (V of 1898) S. 540 ‑‑‑Qanun‑e-Shahadat (10 of 1984), Art.133(2)‑‑‑Illegal gatification‑‑‑Requisitioning of record and recalling witness for cross‑examination‑‑‑Trial Court dismissed application of accused seeking requisitioning of record anal recalling witness for cross‑examination primarily on the ground that since documents to which reference was made by applicant had not been relied upon by the prosecution, therefore, no question could be asked from the witness nor he could be asked to produce the said record‑ ‑Validity‑‑­Provisions of Art.133(2) of Qanun‑e‑Shahadat, 1984 would indicate that scope of cross‑examination was not limited to facts which a witness would state in examination‑in‑chief‑‑‑Right of cross‑examination was a valuable right granted by Legislature to a party or an accused to challenge veracity of a witness‑‑‑Accused was entitled to cross‑examine prosecution witness to adduce facts in support of his defence from said witness though facts could have no relation to facts of which witness had testified in his cross‑examination‑‑ ‑Only precondition was that it must relate to "relevant facts"‑‑‑"Relevant fact"‑would be any fact/circumstances relevant to prosecution case or to plea raised in defence by the accused‑‑‑Prima facie it would be relevant to bring on record legal sources of income of the accused‑‑‑Such issue would become all the more crucial on account of shifting of burden of proof to accused if prosecution had made out a reasonable case in terms of S.14 of National Accountability Bureau Ordinance, 1999.

Onkar Bhikaram v. Balmukund Javarchand AIR 1957 Madh. Bha. 135; Chandramani v, Dinopani Dei AIR 1968 Orissa 17; Nusrat v. The State 1997 MLD 1358; Nazir Hussain v. Abdul Manan 1998 MLD 678; Asghari Khanum v. State PL 1980 SC 14 and Muhammad Shafi v. State PLD 1967 SC 167 ref.

Sh. Zia Ullah for Petitioner.

Javed Shaukat Malik for the State.

Date of hearing: 9th May, 2002.

2002 P Cr. L J 1235

[Lahore]

Before Raja Muhammad Sabir, J

MUHAMMAD HANEEF‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 179 of 2001, decided on 29th April, 2002.

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

---S. 10(3)‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.12‑‑‑Juvenile Justice System Ordinance (XXII of 2000), Ss.2(b) & 4(3)‑‑‑Appreciation of evidence‑‑‑Jurisdiction of Special Court‑‑‑Scope‑‑‑Special Judge. Anti-­Terrorism Court convicted and sentenced accused‑ ‑‑School Leaving Certificate of accused showed that his age on the day of occurrence was eleven years., nine months and six days‑‑‑Police record showed that age of accused on the date of occurrence was fourteen years‑‑‑Accused on the day of occurrence being less than eighteen years of age he could only be tried under juvenile Justice System Ordinance, 2000 and Anti‑Terrorism Court was debarred under S.4(3) of Juvenile Justice System, 2000 to try the accused ‑‑‑Conviction and sentence awarded to accused by Special Judge, Anti‑Terrorism Court were set aside and case was remanded to Sessions Judge with powers of Juvenile Court for trial and decision of case afresh in accordance with law.

Syed Muhammad Amin Shah for Appellant.

Muhammad Qasim Khan, A.A.‑G, alongwith Muhammad Fakhir Razzaq for the State.

Date of hearing: 29th April, 2002.

2002 P Cr. L J 1237

[Lahore]

Before Rustam Ali Malik, J

MUHAMMAD HAYAT‑‑‑Petitioner

Versus

MUHAMMAD IQBAL‑‑‑Respondent

Criminal Revision No.215 of 2002, heard on 22nd May, 2002.

Juvenile Justice System Ordinance (XXII of 2000) ‑‑‑

‑‑‑‑S. 7‑‑‑Penal Code (XLV of 1860), S. 302/34‑‑‑Age of accused, determination of‑‑‑Sessions Judge declared accused to be juvenile after looking into their birth certificates‑‑‑Complainant in his application prayed that a Medical Board for determination of age of all accused be constituted alleging that accused by producing forged documents had shown themselves to be juvenile and those documents were result of collusive connivance‑ ‑‑Sessions Judge dismissed application of complainant on the ground that interference with earlier order wherein the accused were declared to be juvenile, would amount to review of earlier order which he could not undertake‑‑‑No objection had been raised by complainant when accused had been declared to be juvenile by Sessions Judge on' the request of accused‑‑‑Law did not ‑require that in every case a Medical Board be constituted so as to determine age of accused in order to find out as to whether he was below the age of 18 years at the time of occurrence‑‑Provisions of S.7 of Juvenile Justice System Ordinance, 2000 had provided that if question arose as to whether a person was a child, Juvenile Court would record a finding after such inquiry which would include a Medical for determination of the age of child‑‑‑Order passed by Sessions Judge being in order and not illegal or perverse in any manner, could not be interfered with by High Court.

2001 PCr.LJ 1939; 2002 SCMR 440 and 2002 PCr.LJ 633 ref.

Muhammad Sanaullah Khan for Petitioner

Hafiz Khalil Ahmad for Respondent.

Date of hearing: 22nd May, 2002.

2002 P Cr. L J 1240

[Lahore]

Before Raja Muhammad Sabir, J

GHULAM ABBAS ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal 10 of 2002, heard on 7th May, 2002

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 399/402/324‑‑‑Anti‑Terrorism A‑et (XXVII of 1997), S.7‑B‑‑­Appreciation of evidence‑‑‑No person of locality, despite reckless firing, was attracted to the spot to support prosecution stand‑‑‑All witnesses were Police officials and‑ their version was not substantiated by any other reliable piece of evidence‑‑‑ Accused were alleged to have indulged into indiscriminate firing at police party‑‑‑Not a single empty was recovered from the spot and. claim of prosecution that it was on account of sand that empties could not be found, was unbelievable‑‑‑Sub‑Inspector of Police who was witness in‑the case had stated that names of accused were told to him by secret informant who was not previously known to him, but said informant had not been produced‑‑‑None of the members of Police Party had received any injury, despite the statements of prosecution witnesses that accused indulged in indiscriminate firing at Police Party‑‑‑Ocular account being in conflict with medical evidence, prosecution case seemed to be doubtful‑‑‑Prosecution evidence had been disbelieved qua the acquitted accused‑‑‑Nature of injury on person of accused had shown that he was not facing police when he received that injury‑‑‑Plea by the accused seemed more plausible whereas prosecution version was highly doubtful and improbable‑‑‑Case being not free from doubt, it was unsafe to rely upon prosecution evidence for conviction of accused‑‑‑Conviction and sentence awarded to accused by Trial Court were set aside and accused was released forthwith.

(b) Medical Jurisprudence‑‑‑

‑‑‑‑ Fire‑arm injury‑‑‑Blackening around the wound is possible only when fire is made from a distance of about 5/6 feet.

Sardar Mahboob for Appellant.

Nasarullah Warraich for the State.

Date of hearing: 7th May, 2002.

2002 P Cr. L J 1245

[Lahore]

Before Raja Muhammad Sabir, J

IFTIKHAR alias KALI and 2 others‑‑‑Appellants

Versus

THE STATE ‑‑‑ Respondent

Criminal Appeal.No.47 of 1999, decided on 25th April, 2002.

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

‑‑‑‑Ss. 302/392/34‑‑‑Appreciation of evidence‑‑‑Prosecution story as disclosed by complainant was that the accused killed deceased to snatch his motorcycle from him‑‑‑Accused after killing deceased left his motorcycle at place of occurrence which had shown that accused had not killed deceased to snatch his motorcycle‑‑‑Trial Court, in circumstances had rightly acquitted accused from charge under S. 392, P.P.C.‑‑‑One of co‑accused made extra‑judicial confession before prosecution witnesses who were independent witnesses and neither they were related to deceased or complainant party nor were hostile towards said co­-accused‑‑‑Evidence of prosecution witnesses with regard to judicial confession of co‑accused inspired confidence‑‑‑Evidence of extra‑judicial confession though a weak piece of evidence, but if it was corroborated by other independent sources same could be relied upon‑‑‑Pistol recovered from co‑accused matched with empty recovered from the spot‑‑‑Recovery of empty, pistol and its matching with weapon and medical evidence had corroborated extra‑judicial confession of co‑accused and that corroboration had proved case against said co‑accused without an, shadow of doubt‑‑‑Conviction and sentence awarded to co‑accused by Trial Court was maintained‑‑‑No evidence of extra‑judicial confession being available against accused and other co‑accused, confession of their co‑accused could not be used against them 'without corroboration from independent sources‑‑‑Gun recovered from accused was of no consequence as no empty of gun was found at the spot‑‑‑Accused was not named in F.I.R. and no other evidence was on record against him except that of prosecution witnesses who had stated that they had seen accused in suspicious condition near place of occurrence during the night of occurrence‑‑‑Recovery of 32 bore revolver from other co‑accused did not connect him with offence when no empty was found at place of occurrence‑‑‑Mere recovery of revolver having a fired empty in its chamber without any positive report from Forensic Science Laboratory to connect co‑accused with commission of offence, was not sufficient to prove case against co‑accused‑‑‑Prosecution, in circumstances, had failed to prove case against accused and other co‑accused and their implication being not free from doubt, they were acquitted of charge extending them benefit of doubt.

(b) Criminal trial‑‑‑

‑‑‑‑Confession‑‑‑ Extra‑judicial confession‑‑‑ Value‑‑‑ Extra‑judicial confession is a weak type of evidence, but if it was corroborated by other independent sources, same could be relied upon.

Tariq Zulfiqar Ahmad Chaudhry for Appellant.

Masood Sabir for the State.

Ch. Faqir Muhammad and Raja Sultan Khurram Zaman for the Complainant.

Dates of hearing: 9th, 10th and 11th April, 2002.

2002 P Cr. L J 1256

[Lahore]

Before Khawaja Muhammad Sharif, J

FAZAL HUSSAIN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.55/J of 1999, heard on 2nd May, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 308(2), 309 & 310‑‑‑Appreciation of evidence‑‑‑Remittance of "Diyat" amount‑‑‑Accused and deceased were husband and wife and dispute was between them upon settling of marriage of their daughters and sons‑‑‑Accused wanted to get his children married in family of his brothers and sisters, whereas deceased wanted to marry her sons and daughters in her own brotherhood and that was cause of occurrence‑‑­Accused and deceased had six children from the wedlock out of whom two were major and four were minors‑‑‑Compromise was arrived at between accused and all legal heirs of deceased including parents of deceased and her two major sons without any duress or coercion and legal heirs of deceased had pardoned accused in name of Almighty Allah without getting any compensation‑‑‑Grand‑parents of four minor children being their guardian had waived their right of Qisas and had pardoned the accused‑‑‑Accused was a poor labourer and was father of four minors and he after being released from jail not only would look after minors, but would have to feed them and it would be difficult for him to pay "Diyat" amount‑‑‑Grand‑parents of minors having entered into compromise with accused on behalf of minors and State Counsel having no objection in that regard, order with regard to payment of Diyat amount, was set aside and accused was ordered to be released forthwith.

Muhammad Hanif v. The State 1993 PCr.LJ 166 and Muhammad Arif v. The State 2001 PCr.LJ 1804 ref.

Sarfraz Khan Gondal for Appellant.

M. Aslam Malik for the State.

Date of hearing: 2nd May, 2002.

2002 P Cr. L J 1292

[Lahore]

Before, Muhammad Farrukh Mahmud, J

DUR MUHAMMAD SHAH‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2629/B of 2001, decided on 30th January, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10‑‑‑Penal Code (XLV of 1860), S.338‑A‑‑‑Bail, grant of‑‑­Delay in lodging F.I.R. had satisfactorily been explained‑‑‑Accused who allegedly was of 60 years old, could not be termed as sick or infirm for according to the medical examination he was found to be potent‑‑‑Main witness of the case was complainant/victim herself who, had no reason to falsely implicate the accused and her version as given in the F. I. R. was fully supported by the medical examination‑‑‑Lady doctor who examined the complainant had opined that the injuries were found on the person of the complainant and her injuries and abortion were due to the violence committed on her during rape‑‑‑Reasonable grounds existed to connect the accused with the offence which attracted the prohibitory clause of S.497, Cr.P.C.‑‑‑Bail application of the accused was dismissed in circumstances.

Muhammad Nawaz Najja v. The State 1991 SCMR 111; Allah Bakhsh v. Nazar Hussain Shah and another 1979 SCMR 137 and Mst. Bashiran Bibi v. Nisar Ahmad Khan PLD 1990 SC 83 ref.

Muhammad Mehmood Ashraf Khan for Petitioner.

Azmat Ali Taga for the State.

2002 P Cr. L J 1299

[Lahore]

Before Bashir A. Mujahid and Mrs. Nasira Iqbal, JJ

IJAZ alias KHALID‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.354. 356, Criminal Revision No.232 and Murder Reference No. 185 of 1997, heard on .30th January, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Motive stood proved through admission of the accused himself‑‑‑Accused was nominated in promptly recorded F. I. R. ‑‑‑Incident was a daylight occurrence and the ocular account as furnished by the complainant and prosecution witness had fully been corroborated by the medical evidence‑‑Plea taken by the accused that the deceased had arrived in his house in order to commit Zina‑bil‑Jabr with his sister had not been supported by the evidence‑‑­Plea of sudden provocation taken by the accused had also not been substantiated at all‑‑‑Ocular account had been corroborated not only by medical evidence, but also by recovery of weapon of offence‑‑­Prosecution having established its case against the accused beyond any reasonable doubt, no reason existed to interfere in the conviction recorded and the sentence awarded to him‑‑‑Appeal against conviction and sentence filed by the accused was dismissed in circumstances.

Khalid Javed v. Ansar Khan and another 1995 SCMR 1846 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Burden of proof‑‑‑When an accused had admitted that he had killed another, the burden of proving that he had committed no offence under law or that his case was one of diminished liability, would shift to him and he had to show reasonable probability of his version being true‑‑‑Accused though not required to lead independent evidence, but he could rely upon circumstances appearing from evidence of prosecution.

S.D. Qureshi for Appellant (on State expenses).

M. Sharif Cheema for the State.

Date of hearing: 30th January, 2002.

2002 P Cr. L J 1415

[Lahore]

Before Farrukh Lateef, J

MUHAMMAD ARIF and others‑‑ ‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Revision No. 128 of 2002, decided 12th April, 2002.

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

‑‑‑‑Ss. 514 & 439‑‑‑Forfeiture of surety bond‑‑‑Petitioners stood sureties in respect of accused and had executed surety bonds in that behalf with undertaking that they would be responsible for producing the accused before Court on each date of hearing till conclusion of trial‑‑‑Accused who was facing murder charge absconded at the conclusion of trial and Trial Court forfeited bonds and ordered for recovery of amount of bonds‑‑‑Sureties had asserted that they were poor persons and were unable to pay amount in question and that they having stood sureties of accused on account of benevolence, imposition of full penalty was improper, unjust and unreasonable‑‑‑Sureties were given sufficient time by Trial Court to produce accused who had absconded, but they had not only failed to discharge their obligation of producing the accused before Court, but had expressed their inability to do the needful‑‑‑If sureties were poor persons and their financial position was not Sound, they should not have undertaken liability which they were unable to discharge‑‑­Sureties having undertaken liability, they were legally bound to fulfill their obligation under bail bonds furnished by them‑‑‑Order forfeiting bonds and recovery of amount of bonds from sureties passed by Court of competent jurisdiction giving cogent reasons, was proper and legal and could not be interfered with in revision by High Court.

Mehar Haq Nawaz Humayun for Petitioners.

2002 P Cr. L J 1422

[Lahore]

Before Farrukh Lateef, J

MEHRAM SHAH‑‑‑Petitioner

Versus

ADDITIONAL SESSIONS JUDGE, LAYYAH and another‑‑‑Respondents

Criminal Revision No. 133 of 2002, decided on 17th April, 2002.

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

‑‑‑‑Ss. 514 & 439‑‑‑Forfeiture of surety bond‑‑‑Accused having absconded, Trial Court had taken proceedings against surety under S.514, Cr.P.C. and forfeited surety bond furnished by him‑‑‑Surety had alleged that proceedings conducted against him by Trial Court were illegal and without jurisdiction as he was not served with any show‑cause notice and the order was passed by Trial Court in his absence‑‑‑Evidence on record had proved that notice under S.514, Cr.P.C. was duly issued to the surety by Trial Court but he had refused to accept the service thereof‑‑­Even otherwise surety had knowledge about proceedings against him as on that date he was represented by a counsel in Trial Court‑‑‑Even. if it be presumed that surety was not served, he had knowledge of proceedings against him on relevant date‑‑Surety neither produced accused nor requested Trial Court to give him time for producing accused‑‑‑Surety did nothing for five months in respect of producing accused before Court‑‑‑Surety was under legal obligation to discharge his liability under bail bond furnished by him and after undertaking liability himself, it did not lie in his mouth to say that he was a poor person and could not pay amount of bond executed by him‑‑‑Orders forfeiting surety bond and. recovery of amount from surety, were correct; proper, and legal and would not call for any interference by way of revision.

Ch. Muhammad Jamil for Petitioner.

Manwar Muhammad Younis for the State (on Court's call).

2002 P Cr. L J 1432

[Lahore]

Before Ali Nawaz Chowhan and Rustam Ali Malik, JJ

AMJAD IQBAL and 15 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.868 of 1998, Criminal Revision No.408 of 1998 and Murder Reference No. 108/T of 1999, decided on 6th June, 2002.

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

‑‑‑‑S. 154‑‑First Information Report ‑‑‑Nature‑‑‑F.I.R. is the first information about the happening of the crime‑‑‑Whether facts narrated in the F.1.R. are true or not, is a question which has always to be considered by the Court at the time of exercising its adjudicatory powers‑‑‑If an F. I. R. is disowned on good grounds then it may just be regarded as a first information of the occurrence but not a report of facts about it and facts may be gathered from the witnesses who appear in a Court with scant regard to the facts narrated in the impugned text of the First Information Report.

Ghulam Muhammad alias Gulla and others v. The State PLD 1969 ah. 114 ref..

(b) Penal Code (XLV of 1868)‑‑‑

‑‑‑‑Ss. 302(b)‑Appreciation of evidence‑‑‑Where versions of the parties are not fully truthful and are not helpful for purposes of just adjudication, the Court has to fall back on its own wisdom, experience and has to draw its own inference based on the hypothesis which appears cogent, sensible, coherent, truthful artA compatible with the facts borne on record.

Syed Ali Bepari v. Nibaran Mollah and others PLD 1962 SC 502; Ahmad Khan v. Nazeer Ahmad and others 1999 SCMR 803; Muhammad Yousaf v. The State 1994 SCMR 1733 and Shamshad v. The State PLD 1963 SC 740 ref.

Khawaja Sultan Ahmad assisted by Muhammad Asif Ranjha and Sher Afghan for Appellant.

Muhammad Aslam Malik with S. M. Masood Mirza for the State.

Ijaz Hussain Batalvi assisted by Akhtar Ali Qureshi ,for lhef Complainant.

Dates, of hearing: 30th May and 3rd June, 2002.

2002 P Cr. L J 1496

[Lahore]

Before Tanvir Bashir Ansari and Iftikhar Hussain Chaudhry,JJ

ABDUL GHAFOOR alias GHAFOORI‑‑‑Appellant

versus.

THE STATE‑‑‑Respondent

Criminal Appeal No.9 of 2001, heard on 10th April, 2002.

Penal Code (XLV of 1860)‑‑

‑‑‑‑Ss. 392/411 /458‑‑‑Appreciation of evidence‑‑‑Statements of prosecution witnesses had indicated that identification proceedings were conducted strictly in accordance with law and procedure‑‑‑Contention o1 accused that he was shown to identifying witnesses before actual identification parade was not borne out from record and Trial Court had rightly rejected objection to identification proceedings‑‑‑Witnesses of identification had identified accused unhesitatingly and without any reservation‑‑‑Contention of accused that he could not be convicted solely on basis of identification parade had no force because once it was established that occurrence did take place, nothing unlawful was for prosecution to prove guilt of accused through a validly held identification proceedings‑‑‑Accused had been identified by as many as three , eye­witnesses and no exception could be taken to such proceedings‑‑­Prosecution had succeeded in proving manner and mode of occurrence‑‑­No male fide intent or motive was found on the part of complainant to have falsely implicate accused‑‑‑Reason stated by accused in his statement made under S.342, Cr.P.C. that he had been implicated on account o1 political enmity, was not supported by any material on record nor was believable under circumstances of the case‑‑‑Appeal against judgment of Trial Court convicting and sentencing accused being meritless, was dismissed. [pp. 1500, 1501] A, B, C, D, E & F

Sh. Mehboob Alam for Appellant.

Shamim Ahmed Khan for the Complainant.

Saleem Nawaz Abbasi, Asstt. A.‑G. for the State.

Date of hearing: 10th April, 2002.

2002 P Cr. L J 1561

[Lahore]

Before M. Javed Buttar and Ali Nawaz Chowhan, JJ

Syed MANZAR ABBAS and 3 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos.253/B and 254/B of 2001, decided on 22nd February, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.324/337/380/440/ 452/458/148/149‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.11‑B‑‑‑Anti­-Terrorism Act (XXVII of 1997), S.7‑‑‑Bail, grant of‑‑‑It could not be said, at the bail stage, that the accused had been involved falsely in the case as claimed by the accused because the material available on the record had pointed towards aggression by the accused side‑‑‑Large number of accused having been involved in the case, it was for the Trial Court to determine, after recording the evidence, as to which of the accused sent up to face trial by the police, were guilty‑‑‑Involvement of the accused in case under S.324, P.P.C. was a matter of further inquiry because despite the attack by such a large number of heavily armed persons nobody sustained injury‑‑‑Had there been any intention to kill, the incident would have resulted in fire‑arm injuries to one or more persons belonging to the complainant side‑‑‑Rest of the offences did not fall within the prohibitory clause of S.497, Cr.P.C. and the grant of bail in such‑like cases was a rule and the withholding of the same was an exception‑‑‑Accused being behind the bars for the last more than three months the bail could not be withheld merely as a punishment‑‑­Commission of offence under S.458, P.P.C. of lurking house­-trespass by night, .was prima facie, not made out from the material available on the record and possibility could not be ruled out that said offence could have been added just to make the case within the prohibitory clause of S.497, Cr.P.C.‑‑‑Bail was granted to the accused, in circumstances.

Dr. A. Basit for Petitioners.

Basharat Ullah Khan for the Complainant.

Tariq Bilal for the State

2002 P Cr. L J 1566

[Lahore]

Before Khawaja Muhammad Sharif, J

ZAFAR IQBAL and others‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.1529, 209/J and Criminal Revision No.737 of 2000, heard on 28th March, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302(b)/34‑‑‑Appreciation of evidence‑‑‑Delay of 16 hours in lodging the F.I.R. was not properly explained which appeared to have been registered after due deliberation and consultation‑‑‑No blood­stained earth or any crime‑empty was taken into possession by the police from the place of occurrence‑‑‑Motive for the incident was not believable‑‑‑Dying declaration made by the deceased contained interpolations‑‑‑Eye‑witnesses being not the residents of the place of occurrence were chance witnesses‑‑‑One column of the medical-legal report had been admittedly filled by the Dispenser which had been left blank in order to favour the complainant‑‑‑No injury whatsoever was attributed to one accused on the person of the deceased‑‑‑Prosecution story was full of doubts‑‑‑Accused were acquitted in circumstances.

1995 SCMR 1730 ref.

Muhammad Asghar Khan Rokhari for Appellants.

Muhammad Anwar Tiwana for the State.

Mian Sikandar Hayat and Inayatullah Cheema for the Complainant.

Date of hearing: 28th March, 2002.

2002 P Cr. L J 1570

[Lahore]

Before Ali Nawaz Chowhan, J

TARIQ IQBAL KHAN‑‑‑Petitioner

Versus

THE STATE and another‑‑‑Respondents

Writ Petition No.2413 of 2001, decided on 17th July, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 406/468/471‑‑‑Criminal Procedure Code (V of 1898), S.63‑‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Discharge of the accused‑‑‑Petitioner had challenged order of the Judicial Magistrate rejecting discharge report submitted by the police‑‑‑Petitioner had contended that he had nothing to do with reported transaction and was not in any case criminally involved in the affairs of the business of the complainant‑‑‑Petitioner was not only exonerated from the charge by the three members of the Committee constituted by the S.E.C.P., but Additional S.P. also had come to the conclusion that no case was made out against the petitioner and S.P. after investigation was also of the same view‑‑‑Detailed discharge report submitted by the police was rejected by the Judicial Magistrate without giving cogent reasons simply stating that there was evidence against the petitioner, but failed to refer any such evidence‑‑‑Validity‑‑‑Case was of non‑reading of the report of the police by the Magistrate and decision taken by Judicial Magistrate was in hurry and on the administrative side‑‑‑Such matters were to be disposed of with reference to all facts even if it was on administrative side like refusal to discharge the accused‑‑‑Order of Judicial Magistrate being infirm was set asides and case was remanded to decide afresh after adverting to facts of the case as well as police report.

Abdul Baseer Qureshi for Petitioner.

Tariq Bilal for the State.

2002 P Cr. L J 1573

[Lahore]

Before M. Javed Buttar and Ali Nawaz Chowhan, JJ

RAB NAWAZ and 2 others‑‑‑Petitioners

Versus

THE STATE‑‑Respondent

Criminal Miscellaneous No.68/B of 2001 and Criminal Appeal No.393 of decided on 21st February, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 426‑‑‑Penal Code (XLV of 1860), Ss.302/324/149‑‑‑Suspension of sentence, petition for‑‑‑One of the accused persons was attributed injuries to the deceased and as to whether the said injuries were caused by the said accused or by the co‑accused or by both of them, required deeper appreciation of evidence which could not be undertaken at the present stage‑‑‑Role attributed to other two co‑accused of having lifted the deceased from the street and having taken him inside the house forcibly, where he was done to death by the co‑accused, had been believed by the Trial Court on basis of the evidence produced by the prosecution‑‑‑Contention of the accused that they had been involved in case falsely just to widen the net, also required deeper appreciation of evidence‑‑‑Petition for suspension of sentence tiled by the accused was dismissed in circumstances.

Malik Rab Nawaz Noon for Petitioner.

Tariq Bilal for the State.

Sardar Muhammad Ishaq Khan for the Complainant.

2002 P Cr. L J 1575

[Lahore]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD JUNAID and another‑‑‑Petitioners

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No.1263/Q of 2000/BWP, decided on 14th November, 2001.

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

‑‑‑‑Ss. 11/10(3)‑‑‑Criminal Procedure Code (V of 1898), Ss.561‑A & 190‑‑‑Issuing process to accused to face trial‑‑‑Quashing of such order‑‑‑Accused were not nominated in the F.I.R. and were neither challaned by the police nor their case was put in Column No.2 of the challan‑‑‑Effect‑‑‑Court has ample powers to summon an accused person if some material is available against him and Court is convinced that he is involved in the commission of the offence‑‑‑Neither evidence on the judicial file was available against the accused nor prosecution was able to collect evidence against him‑‑‑Order summoning the accused, in circumstances, was set aside by High Court.

Mirza Muhammad Abbas v. The State PLD 1964 Lah. 7; Haji Muhammad Aslam Khan v. Muhammad Aslam and another 1990 SCMR 211; S. Akhtar Sher v. The State 1991 MLD 1977; Jan Muhammad v. Bashir and :3 others 1969 PCr.LJ 794; Haji Muhammad Aslant v. The State 1986 PCr.LJ 1442; Muhammad Yasin v. Abdur Rahim and another 1968 PCr.L1 429; Ali Muhammad and others v. Muhammad Anwar and others 1990 PCr.LJ 1549 and Shaukat Ali and 2 others v. The State 1995 PCr.LJ 1749 ref.

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

‑‑‑‑Ss. 11/10(3)‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.133‑‑‑Cross­examination, its importance in administration of justice ‑‑‑Examination­-in‑chief without cross‑‑examination‑‑‑Admissibility‑‑‑Accused were not nominated in F.I.R. but complainant for the first time named them in her examination‑in‑chief‑‑‑Complainant was not cross‑examined and the Court believed her and summoned the accused persons ‑‑‑Validity‑‑­Cross‑examination was essential for the discovery of truth and if opportunity for cross‑examination was not provided the testimony would be inadmissible.

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

‑‑‑Ss. 11/10(3)‑‑‑Criminal Procedure (V of 1898), S.561‑A‑‑‑Quashing of order of issuing process to accused to face, trial‑‑‑Court has to look at the material available with the police and produced by the prosecution in the Court and if sufficient evidence for involvement of the accused in the commission of offence is available on record, the Court is competent to summon such person to face trial‑‑‑Where the requirements of law were not fulfilled, order summoning the accused persons to face trial was ct aside by the High Court.

Imran Mehmood Akhtar for Petitioner.

Ghazanfar Ali Chaudhry for the State.

2002 P Cr. L J 1579

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman, J

ASIF ALI ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.452 of 2000, heard on 27th November, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

,‑‑‑‑Ss. 302/324/452/34‑‑‑Witness‑‑‑Appreciation of evidence‑‑‑Statement of single eye‑witness‑‑‑Two eye‑witnesses of occurrence were given up by the prosecution but there was nothing on record to doubt the credibility of only one eye‑witness‑‑‑Ocular account narrated by said witness stood corroborated by the medical evidence‑‑‑Witness had no direct enmity with the accused to falsely implicate him‑‑‑Evidence of such witness could not be disregarded on the ground of her relationship with the deceased‑‑‑Statement of such witness could be safely relied upon even in the absence of any corroborative piece of evidence.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/452/34‑‑‑Appreciation of evidence‑‑‑Motive‑‑‑Role of‑‑­When premeditated and cold‑blooded murder is committed and the same is established by irrefutable evidence the motive does not play any effective role‑‑‑Quality of evidence is more important than the motive which may or may not be proved, and if not proved it could not be a ground to discard unimpeachable evidence.

Muhammad Ilyas v. The State PLD 2001 SC 333 ref.

Sardar Khurram Latif Khan Khosa for Appellant.

Ch. Muhammad Nazir for the State

Date of hearing: 27th November, 2001.

2002 P Cr. L J 1585

[Lahore]

Before Zafar Pasha Chaudhary, J

Syed GULZAR HUSSAIN ‑‑‑Petitioner

Versus

S.H.O. and others‑‑‑Respondents

Writ Petition No. 16057 of 2001, heard on 13th September, 2001.

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

‑‑‑S. 156‑‑‑Successive investigations‑‑‑Appropriateness‑‑‑Successive investigations to be discouraged and such practice leas deprecated‑‑‑If, however, some important or credible material was collected which was necessary to be placed before the Court to arrive at a just conclusion then there was no ouster of jurisdiction or any legal bar on the fresh investigation.

1987 SCMR 103; PLD 1988 Lah. 666; 2000 PCr.LJ 1551; Nazeer Ahmad v. State PLD 1998 Lah. 742 and Abdul Aziz v. S. P. and 2 others PLD 1997 Lah. 24 ref.

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

‑‑‑‑S. 156‑‑‑Re‑investigation of case‑‑‑Re‑investigation of case without any justification was unwarranted, but if the investigation was taken up afresh on the basis of some cogent and reliable evidence or material, that action could not be struck down and could not be held to be nullity.

(c) Criminal trial‑‑‑

‑‑‑‑ Opinion of police‑‑‑Nature‑‑‑Opinion of the police was not binding on the Courts‑‑‑Courts had to base their verdict on the strength of the evidence and material placed before them.

Sheikh Naveed Shahryar for Petitioner.

Hassan Qadar Shah for Respondent.

M. Bilal Khan, Addl. A.‑G.

Date of hearing: 13th September, 2001.

2002 P Cr. L J 1588

[Lahore]

Before Khalil‑ur‑Rehman Ramday and Ijaz Ahmad Chaudhry, JJ

RAFI ULLAH KHAN and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1106 of 2001, heard on 25th September, 2001.

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

‑‑‑‑S. 9(b)‑‑‑Appreciation of evidence‑‑‑Only evidence collected by the police during investigation was the statements of two police constables, but their statements were contradictory and inconsistent on the material point both in examination‑in‑chief and cross‑examination‑‑‑Presence of said two witnesses at the spot at the relevant time had not inconsistent been explained by them and their statements had not made out a case against the accused for their conviction‑‑‑Such statements of the witnesses could not be accepted‑‑‑Accused persons seemed to have been involved falsely in the case by the police and the possibility of mala fides in lodging the case against them could not be ruled out‑‑­Prosecution having failed to prove case against the accused, charge conviction and sentence were set aside and they were acquitted of the charges levelled against them.

Sarfraz Khan Gondal for Appellants.

Imtiaz Ahmad for the State.

Date of hearing: 25th September, 2001:

2002 P Cr. L J 1591

[Lahore]

Before Riaz Kayani, J

TAHIR MEHMOOD alias TARI‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.775/B of 2001, decided on 28th March, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.392‑‑‑Bail, grant of‑‑‑No identification parade was held, but instead police got the supplementary statements recorded from the complainant on the very next day and on the basis of such statements the accused were named in the F.I.R. and were arrested‑‑‑Such method of involving the accused particularly in the case of dacoity and robberies was deprecated‑‑‑Co‑accused having been allowed bail, same facility was also granted to the accused on the principle of consistency.

Parvaiz Aslam Chaudhry for Petitioner.

Ishfaque A. Chaudhry for the State.

2002 P Cr. L J 1593

[Lahore]

Before Ijaz Ahmad Chaudhary, J

Mst. PARVEEN AKHTAR‑‑‑Petitioner

Versus

MUHAMMAD YOUSAF ZAHID and another‑‑Respondents

Criminal Miscellaneous No. 132/Q of 2001, decided on 28th September, 2001.

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

‑‑‑‑S. 561‑A‑‑‑Penal Code (XLV of 1860), Ss.454/382‑‑‑Petition for quashing of proceedings‑‑‑Criminal case had been registered against the petitioner by her ex‑husband and the civil litigation was also pending between the parties‑‑‑Annoyance of the complainant due to order of handing over custody of the children to the petitioner, could not be ignored‑‑‑Petitioner who was ex‑wife of the complainant had explained that she was informed by the complainant himself that she could come and take away her dowry articles and that she arranged transport and with the help of her relatives including her two sons came to the house of the complainant to collect the dowry articles‑‑‑Taking of dowry articles lying in house of complainant who was her ex‑husband, was a circumstance in favour of the petitioner as she was offered by the complainant himself to take away the same‑‑‑Petitioner had already suffered losses during the litigation and also due to the registration of said criminal case against her‑‑‑Even though the petitioner had alternate remedy by way of filing application under S.249‑A, Cr.P.C. High Court decided to exercise its inherent powers under S.561‑A, Cr.P.C. because of peculiar circumstances of the case and directed the quashing of criminal proceedings pending against her in the Trial Court.

PLD 1975 SC 154 ref.

Kh. Z.H. Tahir for Petitioner.

Iram Sajjad Gul for the State.

Idris Ahmed Sheikh for Respondent No.2.

2002 P Cr. L J 1596

[Lahore]

Before M. Javed Buttar, J

ABDUL RAUF‑‑‑Petitioner

Versus

RUSTAM ALI MALIK, JUDGE, ACCOUNTABILITY COURT NO.1, RAWALPINDI and 3 others‑‑‑Respondents

Writ Petition No.977 of 2001, heard on 23rd October, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 420/109‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑­Criminal Procedure Code (V of 1898), S.265‑K‑‑‑Ehtesab Ordinance (CXI of 1996), S.15‑‑‑National Accountability Bureau Ordinance (XVIII of 1999), S.33‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Petition .by the accused under S.15 of Ehtesab Ordinance, 1996 and S.265‑K, Cr.P.C, for his acquittal was dismissed by the Trial Court without going into the merits of the petition merely observing that sufficient grounds existed for proceeding with the trial of the accused and that without recording further evidence it could not be found that there were no sufficient grounds for proceedings with the trial of the accused‑‑‑Provisions of S.33, National Accountability Bureau Ordinance, 1999 had provided that it would not be necessary to recall any witness or to record any evidence that may have been recorded‑‑­Trial Court had acted illegally in holding that "without recording any evidence, Court could not hold that no sufficient grounds existed for proceeding with the trial of the accused", because the words employed it S.265‑K. Cr.P.C. were `at any stage" and the recording of evidence was not a condition precedent for entertaining petition for acquittal ‑‑‑Trial Court, in circumstances, had acted illegally in holding that it could not at the trial stage, hold that there were no sufficient grounds for proceeding with the trial of the accused without recording any other evidence‑‑‑Trial Court was duty bound to attend to the pleas being urged before it by the accused/petitioner and his petition for acquittal was required, to be. decided on merits‑‑‑Trial Court, therefore, had illegally refused to exercise the jurisdiction vested in it under S.265‑K, Cr.P.C.‑‑‑Order passed by the Trial Court was set aside with the direction that petition under S.265‑K, Cr.P.C. pending before it would be decided on merits in accordance with law.

The State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto 1993 SCMR 523; Muhammad Hassan v. Manzoor Ahmad and another 1991 PCr.LJ 2177; The State v. Asif Ali Zardari and another 1994 SCMR 798 and Muhammad Tufail v. Atta Shabir and 5 others PLD 1977 SC 220 ref.

Ijaz Hussain Batalvi and M. Aslam Hayat for Petitioner

Abdul Saeed Qureshi for Respondents.

Deputy Prosecutor‑General, N.A.B.

Date of hearing: 23rd October, 2001

2002 P Cr. L J 1603

[Lahore]

Before Asif Saeed Khan Khosa and Muhammad Farrukh Mahmud, JJ

MASOOD ASLAM alias SHADA‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.48 of 1999, heard on tithe November, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34 & 337‑A(i)‑‑‑Appreciation of evidence ‑‑‑F.I.R. had been lodged about the incident at the place of occurrence after deliberations‑‑‑Presence of eye‑witnesses on the spot at the relevant time was replete with serious doubts‑‑Medical evidence did not support the ocular testimony‑‑‑Recovered crime‑empties and the fire‑arms having been sent to the Forensic Science Laboratory together, possibility of manufacturing of the crime‑empties before their dispatch to the said Laboratory could not be ruled out of consideration‑‑‑Prosecution had not set up any motive against the accused for commission of the offence‑‑‑Accused were acquitted on benefit of doubt in circumstances.

Sahibzada Farooq Ali for Appellant

Ch. Faqir Muhammad for the Complainant.

Syed Altaf Hussain Bokhari for the State.

Dates of hearing: 31st October; 1st, 5th and 6th November, 2001.

2002 P Cr. L J 1613

[Lahore]

Before Ijaz Ahmad Chaudhary, J

Malik KHALID MEHMOOD‑‑‑Petitioner

Versus

INSPECTOR‑GENERAL, POLICE, PUNJAB and others‑‑‑Respondents

Writ Petition No. 2686 of 2000, decided on 23rd April, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑Direction of High Court had been sought to police station concerned for registration of criminal case against respondents‑‑‑Disputed questions of fact were involved in the case which could not be resolved without recording of evidence and same could not be done in Constitutional jurisdiction of High Court‑‑‑Petitioner otherwise had alternate remedy of filing private complaint for prosecution of respondents on allegations levelled in Constitutional petition which was more efficacious remedy‑‑­Constitutional petition was disposed of accordingly

Pervaiz Inayat Malik for Petitioner.

Sher Zaman, Dy. A.‑G. for the State.

Shahid Waheed for Respondent No.4.

Date of hearing: 23rd April, 2002.

2002 P Cr. L J 1616

[Lahore]

Before Faiz Muhammad Qureshi, J

KAMRAN and another‑‑‑Applicants

Versus

THE STATE‑‑‑Respondent

Criminal Bail Application No. 1004 of 2001, decided on 27th August, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.393/398/34‑‑‑Bail, grant of‑‑­Accused not only took hold of passengers bus pointing pistol on head of the driver of the bus, but also created panic in the bus‑‑‑Accused injured two persons and accused were also injured‑‑‑Complainant and conductor of bus though had sworn affidavit exonerating accused, but affidavits filed by those two witnesses were not sufficient until and unless affidavit was filed by other witnesses namely Manager of P.B.S. Petrol pump who was the main witness‑‑‑Act of accused was that of the terrorist and dangerous act and if such terrorist activities were encouraged, nobody would be safe‑‑‑Accused having failed to make out a case for bail, his application of bail was dismissed.

1999 SCMR 131 ref.

S.M. Ismail Shah for Applicants.

Sharafat Ali Khan for Asstt. A.‑G. for the State.

Date of hearing: 27th August, 2001.

2002 P Cr. L J 1618

[Lahore]

Before Tassaduq Hussain Jilani and Asif Saeed Khan Khosa, JJ

MUHAMMAD AKHTAR alias HUSSAINA and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.2013 of 2000, 165/J and Murder Reference No. 1/T of 2001, heard on 16th April, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/449/34‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10(4)‑‑‑Anti‑Terrorism Act (XVII of 1997), S.7‑‑‑Appreciation of evidence‑‑‑Prosecution case was that complainant party knew the accused before occurrence‑‑‑Complainant and prosecution witness had straightaway named accused in their first statement made before police‑‑‑Prosecution witness who was resident of place where occurrence had taken place, was a natural witness of occurrence and said witness during occurrence having been herself subjected to rape, her presence at, the spot at relevant time could not be doubted‑‑­Complainant's place of residence also was not far away from place of occurrence and his explanation for spending night with his deceased brother was neither unusual nor unnatural‑‑‑Both complainant and prosecution witness had absolutely no background of animosity with accused so as to falsely implicate him in a case of such a nature ‑‑‑Said witnesses had made consistent and straightforward Statements before Trial Court and their statements had received ample support from the medical evidence‑‑‑Incident though took place during night, but presence of lantern inside the room where occurrence had taken place provided ample opportunity to prosecution witness to identify accused as one of perpetrators of the offence‑‑‑Prosecution having succeeded in proving its case against accused, beyond reasonable doubt, conviction and sentence recorded against him by Trial Court, were upheld and maintained ‑‑‑Co-­accused who were nominated in supplementary statement made by complainant before Investigating Officer after about two/three days of occurrence had not been identified during occurrence‑‑‑Complainant and prosecution witness had never disclosed before Investigating Officer or even before Trial Court the basis on which they had subsequently identified and nominated co‑accused‑‑‑In view of serious doubts regarding identification and implication of co‑accused as co‑culprits of accused, their convictions and sentences recorded by Trial Court were set aside and they were acquitted of charge extending them benefit of doubt.

Mrs. Eram Sajjad Gul for Appellants at State expense.

Sadaqat Mehmood Butt for the State.

Date of hearing: 16th April, 2002.

2002 P Cr. L J 1626

[Lahore]

Before Mrs. Nasira Iqbal, J

Mrs. HUMA AKHTAR‑‑‑Petitioner

Versus

STATION HOUSE OFFICER, POLICE STATION SANDA, LAHORE and 2 others‑‑‑Respondents

Writ Petition No.500 of 2000, decided on 28th February, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199(1)(b)(i)‑‑‑Habeas corpus petition‑‑‑Petitioner had prayed that respondent S. H.O. of the concerned police station be directed not to harass petitioner and her spouse‑‑ ‑Petitioner, her spouse and father were present before Court and on Court's query petitioner had again reiterated that she wished to go with her spouse‑‑‑Petitioner was 22 years of age, she was graduate and she had entered into marriage with her spouse‑‑­Petitioner could not be compelled to go with her father and was at liberty to go with her spouse‑‑‑Police functionary was directed not to interfere in matrimonial life of the petitioner.

Malik Muhammad Ashraf and Mian Muhammad Hanif Tahir for Petitioner.

Date of hearing: 28th February, 2002.

2002 P Cr. L J 1630

[Lahore]

Before M.A. Shahid Siddiqui, J

JALAL‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2835/B of 2001, decided on 4th December, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Surrender of Illicit Arms Act (XXI of 1991), Ss.4 & 7‑‑­West Pakistan Arms Ordinance (XX of 1965), S.13‑‑‑Bail, grant of‑‑­Accused was allegedly found in possession of unlicensed pistol of .30 bore‑‑‑Prosecution had not been able to produce Notification under S.4 of Surrender of Illicit Arms Act, 1991‑‑‑In absence of any such Notification, accused could not be said to have contravened any order of Federal Government‑‑‑Accused, in circumstances would be prosecuted under ordinary law i.e. under S.13 of West Pakistan Arms Ordinance, 1965 for which punishment was up to three years‑‑‑Accused being involved in bail case, he was enlarged on bail.

Sardar Tanveer Haider Buzdar for Petitioner.

Abdul Rashid Chaudhry for the State.

Muhammad Sarwar Bhatti, A.A.‑G. on Court's call.

Date of hearing: 4th December, 2001.

2002 P Cr. LJ 1638

[Lahore]

Before Mian Nazir Akhtar, J

MUHAMMAD RAFIQ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No. 146/13 of 2002, decided on 11th February 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.420/466/468/471/474‑‑­Bail, grant of‑‑‑Further inquiry‑‑‑Question whether sale‑deed regarding transfer of disputed house from complainant to accused, was a genuine document or a forged one could suitably be decided by Trial Court after recording evidence‑‑‑Contesting parties had since reached some understanding in pursuance of which accused had delivered back possession of disputed house to the complainant and execution proc dings initiated by accused had been consigned to record‑‑‑Offence under Ss.420/468, P.P.C. were bailable while other offences did not fall within prohibitory clause of S.497, Cr.P.C.‑‑‑In absence of reasonable grounds for believing that accused had committed offence alleged against him, accuse allowed bail.

Ustadu Muhammad Iqbal for Petitioner

Ch. Muhammad Siddique for the State.

Date of hearing: 11th February, 2002.

2002 P Cr. L J 1642

[Lahore]

Before Bashir A. Mujahid, J

AMMAD NAEEM alias BABU‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1338 of 2000, decided on 15th February, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑‑Ss. 302(c), 309 & 311‑‑‑Appreciation of evidence‑‑‑Compromise with accused‑‑‑Case had fully been proved against accused by prosecution witnesses who were inmates of the house and were natural witnesses and had no animosity to falsely implicate accused‑‑‑Complainant who was husband of deceased having entered into compromise and had forgiven accused by waiving right of Qisas and Diyat, thus, case of accused fell under S.311, P.P.C.‑‑Accused who was real brother of complainant, had murdered innocent lady in a brutal manner over a petty matter of quarrel with his mother‑‑‑Conviction of accused was altered from S.302(c), P.P.C. to S.311, P.P.C. and was sentenced to 14 years R.I ‑‑‑Accused was further ordered to pay compensation to legal hers of deceased to be distributed among them accordingly.

Sardar Abdul Majeed Dogar for Appellant.

Asif Ali Hazoor for the State.

Date of hearing: 15th February, 2002.

2002 P Cr. L J 1653

[Lahore]

Before Zafar Pasha Chaudhry and Rustam Ali Malik, JJ

LEHRASIB alias RASAB and 2 others‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 160 of 1996, decided on 28th March, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/337‑E(i)(c)/337‑E(i)(v)/397/458/460/34‑‑‑Appreciation of evidence ‑‑‑ F.I.R. was promptly lodged‑‑‑Ocular evidence was furnished by complainant and two prosecution witnesses who were natural witnesses and they had specifically named the accused and despite lengthy cross‑examination nothing favourable to accused could be extracted‑‑­Some minor inconsistencies or contradictions in evidence of said witnesses were not sufficient to strike down case of prosecution‑‑­Defence version seemed to be highly improbable and accused had failed to produce any evidence in support of said version‑‑‑Accused had asserted that they had been implicated in the case due to enmity and suspicion but they could not point out as to what enmity complainant had with the accused persons‑‑‑Sufficient evidence was on record and it was also evident by attendant circumstances that accused had criminally trespassed into the house of deceased during night after having armed themselves with deadly arms including semi‑automatic weapons for commission of offence of robbery‑‑‑Evidence furnished by eye‑witnesses was convincing and inspired confidence and it did not appear at all that eye‑witnesses had made any dishonest improvements in their statements‑‑‑Ocular account was fully corroborated by medical evidence‑‑‑Report of Forensic Science Laboratory had lent support to prosecution story‑‑‑Recovery of golden ear‑rings from possession of accused was another supporting factor in favour of prosecution version‑‑­Prosecution had fully established beyond reasonable doubt that all three accused in furtherance of their common intention, had committed house­breaking by night and had trespassed into house of deceased after having equipped themselves with fire‑arms with intention to commit robbery by putting inmates of house in fear of instant death, had looted golden ear‑rings of deceased and prosecution witnesses and had attempted to commit Qatl‑e‑Amd‑‑‑All charges against accused having stood fully established, there was no mitigating circumstance in favour of accused‑‑­Accused, in circumstances, had rightly been convicted and sentenced by Trial Court.

Sh. Najam‑ul‑Hassan for Appellants.

Malik Abdul Khaliq for the Complainant.

Sh. Abdul Majid for the State.

Date of hearing: 20th March, 2002.

2002 P Cr. L J 1674

[Lahore]

Before Tassaduq Hussain Jilani, and Asif Saeed Khan Khosa, JJ

MAZHAR SHAH alias MUNDRI ‑‑‑ Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.178/J of 2000, heard on 19th March, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/392/411/34‑‑‑Appreciation of evidence‑‑‑Complainant had merely mentioned to have seen dead body of deceased and did not name anyone as an accused‑‑‑Complainant though did not appear himself in the Court as he had gone abroad, but F.I.R. was proved not only by prosecution witness who recorded F.I.R., but also by other prosecution witnesses who had accompanied complainant when they saw the dead body‑‑‑Said other prosecution witnesses while appearing in Court made statements consistent with story as given in F. I. R. ‑‑‑Statements of prosecution witnesses gave graphic details as to how they were robbed and how deceased was robbed‑‑‑Evidence of ‑ prosecution witnesses inspired confidence and nothing was suggested in cross‑examination as °o why they should falsely depose against the accused‑‑‑Statements of prosecution witnesses were corroborated by factum of recovery of kalashnikov which was witnessed by prosecution witnesses‑‑‑One of prosecution witnesses though was related to the deceased, but mere relationship would not discredit him unless anything was brought on record to indicate that he had any motive to falsely implicate accused‑‑­Although testimony of said witness inspired confidence, yet same was also corroborated by report of Forensic Science Expert‑‑‑Nothing was suggested to prosecution witness who took sealed parcel containing empties, to Forensic Science Laboratory, to indicate that those were, in any manner tampered with‑‑‑No challenge was thrown to report of Expert either in cross‑examination of Investigating Officer or by leading defence evidence‑‑‑Prosecution having succeeded in proving its case against accused beyond reasonable doubt, conviction of accused on a capital charge recorded against him by Trial Court, was sustained and upheld, o«t sentence with regard to compensation passed in violation of S.544‑A, Cr P.C. was modified accordingly.

Mian Amjad Hussain and others v. Nadeem Abbas and another 2000 PSC Criminal 722 ref.

Walayat Umar for Appellant at State expenses.

Khalid Habib Sheikh for the State.

Aftab Ahmad Bajwa for the Complainant.

Date of hearing: 19th March, 2002.

2002 P Cr. L J 1690

[Lahore]

Before Bashir A. Mujahid and Rustam Ali Malik, JJ

MUHAMMAD AZHAR alias AJJA‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.327, 238 and Murder Reference No. 119 and Criminal Revision No. 304, of 1997, decided on 9th April, 2002.

Penal Code (XLV of 1860)‑----

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Accused who was clearly nominated in the F.I.R., was alleged to have fired two shots with pistol .30 bore at deceased‑‑‑Eye‑witnesses were consistent in their statements‑­‑Motive of occurrence as mentioned by complainant was sufficient to prompt accused ‑to launch a murderous attack on deceased‑‑‑Medical evidence fully corroborated eye‑witness account insofar as accused was concerned‑‑‑Case of accused was not that the complainant and other eye­witnesses of occurrence had any enmity against him‑‑‑Fact that complainant who was also eye‑witness of occurrence, was father of deceased, was not sufficient to discard his testimony‑‑‑Young age of accused was no ground to provide a mitigating circumstance in the case as deceased was also a young person and was the only educated son of the complainant‑‑‑Charge under S.302, P.P.C. against accused, in circumstances was clearly established ‑‑‑Co‑accused was not specifically named as one of culprits in original F.I.R.‑‑‑Supplementary statement of complainant in which co‑accused was involved, even if recorded on the same day on which occurrence had taken place, had no legal importance as co‑accused was known to complainant at time of occurrence and if complainant could mention the name of co‑accused in supplementary statement, he could have mentioned his name in original F.I. R. as well‑‑­ Statement of medical officer who conducted post‑mortem examination of dead body showed that it could not be ruled out that injury attributed to co‑accused had also been caused by accused who was alleged to have caused rest of the injuries to the deceased‑‑‑Prosecution, in circumstances, had not been able to establish charge under S.302, P. P. C. against co‑accused beyond reasonable doubt‑‑‑Accused in the light of evidence on record was liable to be convicted and sentenced under S.302(b), P.P.C. and no lawful justification was available for awarding him sentence of death as Qisas under S.302(a), P.P.C. as proof of Qatl‑e‑Amd liable to Qisas as required under S.304, P.P.C. was not available‑‑‑Sentence awarded to accused by . Trial Court was modified from S.302(a) to S.302(b), P.P.C.‑‑‑Conviction and sentence recorded by Trial Court against co‑accused, were set aside and he was acquitted of charge, against him.

(b) Penal Code (XLV of 1860)‑‑­

‑‑‑‑S. 302/34‑‑‑Sentence‑‑‑Age‑‑‑Mitigating circumstance‑‑‑Young age of accused was no ground to provide a mitigating circumstance when the deceased was also a young man and the only educated son of the complainant.

Muhammad Yaqoob Sh. and Mian Muhammad Jahangir for Appellant.

Malik Aslam Khokhar for the State.

M. Azhar for the Complainant.

Date of hearing: 9th April, 2002.

2002 P C r . L J 1796

[Lahore]

Before Muhammad Naeemullah Khan Sherwani, J

ABDUL AZIZ and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Revision No.669 of 2000 and Criminal Miscellaneous Application No. 1695/M of 2001, decided on 2nd October, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 337‑F(i), 337‑F(iv) & 337‑F(v)‑‑‑Criminal Procedure. Code (V of 1898), Ss.345, 435 & 439‑‑‑Compounding of offence‑‑‑Pending revision, compromise was arrived at between the parties whereby complainant party granted "AFW" to accused and had no objection if accused were acquitted of charge‑‑‑After recording statement of injured, compromise arrived at between the parties was found genuine and voluntary‑‑‑High Court accepting revision, quashed convictions of accused and acquitted them of charge.

Ch. Ikram‑ul‑Haq Naseem for Petitioners.

Saifullah Khalid for the State.

2002 P Cr. L J 1804

[Lahore]

Before Mian Muhammad Najum‑uz‑Zaman, J

MUHAMMAD IKRAM‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 223 of 1998, heard on 6th June, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Sentence‑‑‑Plea of grave and sudden provocation‑‑‑Case of two versions in which time, place and weapon used during occurrence were admitted factors‑‑‑Presence of prosecution witnesses at the spot at relevant time was doubtful as both prosecution witnesses were residents of other village which was about three furlongs away from place of occurrence and they could not establish reason' of their presence at the spot‑‑‑Both eye‑witnesses claimed that they saw the occurrence in light of lantern, but presence of lantern was neither shown in site plan nor was mentioned in first inspection report prepared by Investigating Officer‑‑‑During investigation no lantern was ever taken into possession by Police Officer‑‑‑Motive of occurrence as set up by prosecution based on sole statement of complainant, which could not be proved, was rightly taken out of consideration by Trial Court‑‑­Evidence relied upon by prosecution, was not worth reliance and same could not be taken into consideration for convicting accused on capital charge‑‑‑Defence plea taken by accused during trial that he committed murder of deceased under grave and sudden provocation in order to protect honour of his sister, inspired confidence in view of statement made by sister of accused which rang true and lent ample support to plea taken up by accused before Trial Court‑‑‑Presence of both eye‑witnesses at relevant time being doubtful, conviction of accused under S.302(b), P.P.C. was not sustainable‑‑‑Defence plea taken up by accused attracting provisions of S.302(c), P.P.C., accused was convicted accordingly and was sentenced to imprisonment for ten years' R.I. instead of imprisonment for life.

Ch. Muhammad Hussain Chhachhar for Appellant

Malik Muhammad Azam for the State.

Date of hearing: 6th June, 2001.

2002 P Cr. L J 1856

[Lahore]

Before Tassaduq Hussain Jilani and Asif Saeed Khan Khosa, JJ

ALI IMRAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.650 and Murder Reference No.288‑T of 1999, decided on 3rd April, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/392/34‑‑‑Appreciation of evidence‑‑‑Occurrence was a broad daylight one on a working day in a busy street of city ‑‑‑F.I.R. was lodged without much delay and both accused were specifically named‑‑‑Such facts by themselves would rule out possibility of false implication or mistaken identity‑‑‑Complainant, who also was a police constable, was the one who was riding motorbike and deceased was sitting on rear seat‑‑‑Complainant made statement consistent with version given by him in F.I.R, and his testimony could not be shaken despite he was subjected to lengthy cross‑examination‑‑‑Contention of accused that since no identification parade was held his identity was not free from doubt, was not tenable; because complainant had specifically named the accused in F.I.R. and during trial while being cross‑examined, his identification of accused was not challenged‑‑‑Even prosecution witness who had also specifically named the accused; was not questioned on that aspect and it was never suggested that those witnesses did not know the accused personally‑‑‑Complainant admittedly was not inimical towards accused‑‑‑Conviction, in circumstances could be based on solitary statement of a witness who was disinterested, had no enmity with accused, was natural and his testimony inspired confidence because it was not quantity but the quality which would weigh with Court while appreciating evidence‑‑‑Statement of complainant qua role attributed to accused stood fortified by testimony of other witnesses‑‑‑Both accused in the occurrence were armed with pistols, both were found firing, both were trying to flee and avoid their arrest‑‑Both the accused, therefore. would be held sharing common intention‑‑‑Non‑recovery of empties would not be fatal in facts and circumstances of case‑‑‑Even otherwise recovery of weapon of offence or empties was not mandatory requirement of law, but was a circumstantial piece of evidence which would tend to corroborate other piece of evidence‑‑‑Ocular account was corroborated by medical evidence insofar as time, locale and dimension of injuries received by deceased were concerned‑‑‑Prosecution, in circumstances, had proved its case beyond any reasonable doubt to sustain conviction of accused on charge under S.302, P.P.C. for murder of the deceased‑‑‑Conviction of accused under S.324, P.P.C. was set aside as person to whom alleged injury was caused did not appear as a witness‑‑‑Conviction of accused under S.392, P.P.C. was also not maintainable because direct evidence of robbery was lacking in the case.

Riasat Ali and another v. The state PLD 1991 SC 397 ref.

(b) Criminal trial‑‑‑

‑‑‑‑ Appreciation of evidence‑‑‑Quality and not quantity of evidence would weigh with Court while appreciating evidence‑‑‑Conviction could be based, on solitary statement of a witness who was disinterested, had no enmity with accused, was natural and his testimony inspired confidence.

Riaz Hussain v. State 2002 SCMR 177 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/392/34‑‑‑Recovery of weapon of offence or empties‑‑­Recovery of weapon of offence or empties was not a mandatory requirement of law, but was a circumstantial piece of evidence which would, tend to corroborate other pieces of evidence i.e., ocular evidence motive, medical evidence and any other circumstances which might be deemed relevant‑‑‑In presence of direct evidence, credibility of which had withstood test of challenge through cross­-examination, absence of corroborative evidence would not be fatal to prosecution case.

Syed Zahid Hussain Bokhary for Appellant, Sadaqat Mehmood Butt assisted by Masood Mirza and Bashir Abbas Khan for the State.

Date of hearing : 3rd April, 2002.

2002 P Cr. L J 1875

[Lahore]

Before Bashir A. Mujahid and Rustam Ali Malik, JJ

FARRAKH SHAHZAD alias PAPPI‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.612, 560 and Murder Reference No.325 of 1997, heard on 4th April, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/34‑‑‑Appreciation of evidence‑‑‑Eye‑witnesses of occurrence had fully established that it was the accused who had fired and killed the deceased and they had also proved existence of motive of occurrence‑‑‑Medical evidence had fully corroborated ocular account‑‑­Charge against accused under S.302, P.P.C. having fully been established, he was rightly convicted and sentenced under said section‑‑­Charge against accused under S.324, P.P.C. had not been proved beyond reasonable doubt and he was acquitted of the charge but charge under S.302, P.P.C. having fully been proved against him, conviction and sentence of death awarded to him by Trial Court was upheld ‑‑‑Co­accused had only been attributed raising Lalkara and even according to prosecution story co‑accused was empty‑handed at the time of occurrence‑‑‑No accusation was on record against the accused to the effect that he had caused any injury to the deceased or to any prosecution witness‑‑‑If the co‑accused had common intention with accused, he could have tried to cause injury to deceased or to any of prosecution witnesses but there was no allegation against him to that effect‑‑‑Co‑accused was also not alleged that he had grappled with any of prosecution witnesses or the deceased‑‑‑Sufficient evidence did not exist on record to connect co‑accused with offence ‑‑‑Co‑accused was acquitted of all charges extending him benefit of doubt.

C.M. Sarwar for Appellant.

S. D. Qureshi for the State.

Date of hearing: 4th April, 2002.

2002 P Cr. L J 1894

[Lahore]

Before Muhammad Nawaz Abbasi and Muhammad Saeed Akhtar, JJ

GUL BAHAR KHAN alias BHAKKAR KHAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal. Appeals Nos 37‑T and 45/T of 2000, heard on 22nd October, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/353/395/396/34‑‑‑Appreciation of evidence‑‑‑Sole evidence brought on record by prosecution against accused was identification of accused by two members of police party and by another person, who claimed that he witnessed the occurrence while passing on the road at the relevant time‑‑‑Occurrence allegedly took place at midnight and prosecution witnesses stated in cross‑examination that no electric light was lit on the road‑side where occurrence took place and witnesses had .not stated that accused were identified in the lights of the vehicle‑‑No evidence was also available to the effect that either it was a moonlit night or that accused were identified in torch‑light‑‑‑Description of accused without their identification at the time of occurrence, could not possibly be given in complaint and statements of witnesses‑‑‑Identification of accused in dark night as stated by prosecution witnesses being not possible, identification of accused in jail would be of nit consequence ‑­Even it vehicle allegedly recovered from accused was used in occurrence, it would not be a proof of participation of accused in the occurrence‑‑‑Prosecution had not been able to bring any other evidence direct or circumstantial to connect accused with crime‑‑‑Sole evidence of identification being highly doubtful and having not been proved up to the required standard, would not give any weight to the prosecution and with exclusion of evidence of identification, it would be a case of no evidence‑‑‑Conviction and sentence awarded to accused by Trial Court, were set aside and they were directed to be released from jail.

Nek Nawaz Khan for Appellant.

Mukhtiar Ahmad Gondal for the State.

Date of hearing: 22nd October, 2001.

2002 P Cr. L J 1902

[Lahore]

Before Khawaja Muhammad Sharif and M. Naeem Ullah Khan Sherwani, JJ

BAHAWAL BAKHSH ‑‑‑ Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 1005, 1155 and Murder Reference No.545‑T of 2000, heard on 11th March, 2002.

(a) Penal Code (XLV of. 1860)‑‑‑

‑‑‑‑Ss. 302/34 & 114/34‑‑‑Anti‑Terrorism Act (XXVII of 1997), S.9‑‑­Appreciation of evidence‑‑‑No conflict existed between ocular account and medical evidence‑‑‑Names of accused, weapon of offence carried by accused, role played by accused and names of eye‑witnesses were mentioned in the F.I.R. 'with full description‑‑‑Both complainant and eye‑witness being residents of place of occurrence, their presence at the spot was natural‑‑‑Electric light at relevant time was mentioned in the promptly lodged F.I. R.‑‑‑No iota of evidence was on record suggesting or proving that complainant had any enmity against accused to 'falsely depose against them‑‑ Accused remained fugitive from law‑‑‑‑Court had to see quality of evidence and not its quantity specially ocular account which in the present case had come from unimpeachable source‑‑­Nothing was on record to show that eye‑witnesses had told a lie‑‑­Occurrence having taken place due to religious differences, case was fully covered by Preamble of the Anti‑Terrorism Act, 1997 and Special Judge constituted under. Anti‑Terrorism Act, 1997 was fully competent to try the offence‑‑‑Prosecution had successfully proved motive of occurrence‑‑‑Both parties being known to each other, no question arose that of mistaken identity‑‑‑Section 114, P.P.C. was also applicable in the case as occurrence had taken place due to mischief played by accused who commanded the co‑accused to commit murder of deceased and co‑accused did not fire only one shot, but repeated shot which resulted into death of the deceased‑‑‑Prosecution having been successful in proving its case against accused to its hilt through ocular account corroborated by medical evidence and motive, conviction and sentence recorded against accused by Trial Court were maintained.

2002 SCMR 99; 2002 SCMR 199; PLD 1997 SC 529; PLD 1983 SC 393; PLD 1976 SC 53; PLD 2000 SC 458; 2002 SCMR 203; PLD 1997 SC 940 and PLD 1974 SC 87 ref.

(b) Criminal trial‑‑‑

‑‑‑‑ Appreciation of evidence‑‑‑Court had to see quality of evidence and not quantity thereof specially ocular account when coming from unimpeachable source.

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

‑‑‑‑S. 154‑‑F.I.R., nature of ‑‑‑F.I.R. was not a substantive piece of evidence and was only an information to put machinery of law into motion ‑‑‑Collection of evidence was duty of Investigating Agency.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/114/34‑‑‑Motive‑‑‑Weakness of motive or its absence or where alleged, but not proved, would hardly make any difference in awarding death sentence and would not constitute mitigating circumstance.

Waris Khan v. The State 2001 SCMR 387 ref.

M. Latif Khan Khosa and Syed Zahid Hussain Bukhari for Appellant.

Ashfaq Ahmad Ch. for the State.

Syed Imdad Hussain Hamdani and Ch. Abdul Wahid for the Complainant.

Date of hearing: 11th March, 2002.

2002 P Cr. L J 1922

[Lahore]

Before Tassaduq Hussain Jilani and Asif Saeed Khan Khosa, JJ

FAYYAZ KHALIQ alias PAPPU and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1455 of 1998, heard on 1st April, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/460/34/109‑‑‑Appreciation of evidence‑‑‑F.I.R, been lodged with reasonable promptitude and. accused had been specifically nominated therein as principal perpetrator who had caused solitary and fatal fire‑arm injury on the deceased‑‑‑Occurrence though had taken place during night, but it had specifically been mentioned in the F.I.R. that electric bulb was alight at relevant time and presence of such bulb was depicted in site plan‑‑‑Complainant who had also sustained fire‑arm injuries on his person during incident, was a natural witness of occurrence as occurrence had taken place in his own house‑‑‑Other witness resided in house contiguous to the house of his brother/complainant and their presence at the spot at relevant time could not be disputed‑‑‑Complainant and prosecution witness though were father and paternal uncle of deceased, but had no serious motivation to falsely implicate accused in a case of such a heinous nature‑‑‑Both said witnesses had made consistent statements and their credibility could not be shaken during their cross‑examination‑‑‑Witnesses were proved to be reliable enough to place implicit reliance upon them‑‑‑Motive set up by prosecution had been amply proved which had provided corroboration to ocular account‑‑‑Recovery of weapon from accused had also provided 'independent corroboration to ocular account‑‑‑Medical evidence confirmed the ocular account‑‑‑Ocular account furnished by complainant, and prosecution witness, in circumstances, had received corroboration from motive, recovery and medical evidence which was sufficient to prove the case against accused ‑‑‑Co‑accused had not caused any injury to the deceased and injuries sustained by complainant had also been caused by accused and not the co‑accused‑‑‑Co‑accused was not directly connected with motive set up by prosecution‑‑‑Independent corroboration to ocular account in case of co‑accused was not available ‑‑‑Co‑accused was acquitted of the charge extending him benefit of doubt‑‑‑Case against accused having fully been proved, conviction and sentence recorded against him by Trial Court., were maintained.

N.A. Butt for Appellant No. 1.

Nemo for Appellant No.2.

Miss Yasmin Sehgal, A.A.‑G. for the State.

Date of hearing: 1st April, 2002.

2002 P Cr. L J 1934

[Lahore]

Before Tassaduq Hussain Jilani and Asif Saeed Khan Khosa, JJ

AMANULLAH KHAN and 3 others‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.254/J and Criminal Revision No.756 of 2000, decided on 28th March, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/34/109‑‑‑Appreciation of evidence‑‑‑Incident was a broad daylight occurrence and F.I.R. was promptly lodged‑‑‑All the accused persons were specifically named and complainant had explained her presence at the house of deceased alongwith her mother and father at the relevant time‑‑‑Complainant while appearing in Court made statement consistent with version given by her in F.I.R. insofar as role attributed to accused was concerned and her statement was corroborated by prosecution witness who was son of deceased‑‑‑Son of the deceased was a natural witness of occurrence who saw his father, mother. and other close relatives being murdered by accused‑‑‑Both prosecution witnesses were subjected to lengthy cross‑examination, but nothing could be brought on record to indicate that they were either not witnesses of occurrence or they were deposing on account of any enmity‑‑‑Both witnesses were closely related to accused‑‑‑Such witnesses were not expected to falsely depose against accused‑‑‑Statements made by prosecution witnesses stood corroborated by medical evidence qua duration of injuries received, time of death and kind of weapon used‑‑‑Accused remained fugitive to law and were apprehended after a period of more than 3 years and could not offer any tenable explanation for such abscondence‑‑‑When abscondence of accused was proved on record through proceedings under Ss.87/88, Cr.P.C. and if no explanation appealing to reason was put forth by the accused then that circumstance coupled with other evidence on record would rather weigh heavily against the accused‑‑‑Lack of motive or its weakness would not be fatal for prosecution when case otherwise stood proved through direct evidence‑‑‑Occurrence had partly been admitted by accused, but he raised plea, of grave and sudden provocation‑‑‑Such plea in facts and circumstances of the case was merely an attempt to hide his own guilt and could not be accredited with truth‑‑‑Prosecution, in circumstances, had proved its case beyond reasonable doubt against three accused persons whereas case of fourth accused was distinguishable and was not free from doubt‑‑‑Fourth accused was an old woman and was not armed with ‑fire‑arm and no motive was attributed to her either in F. I. R. or during trial but warms only attributed role of proverbial Lalkara and there was little in evidence to suggest that said Lalkara was taken as a command‑‑‑Conviction of said accused in circumstances, could not be sustained‑‑‑Case against other three accused having been proved beyond reasonable doubt, their appeal against conviction and sentence, was dismissed.

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

‑‑‑‑Ss. 87/88‑‑‑Abscondence of accused‑‑‑When abscondence of accused was proved on record through proceedings under Ss.87/88, Cr.P.C. and no explanation appealing to reason was put forward by accused, then that circumstance coupled with other evidence on record would weigh rather heavily against the accused.

Mst. Roheeda v. Khan Bahadur and another 1992 SCMR 1036 ref.

(c) Criminal trial‑‑‑

‑‑‑‑Motive‑‑Lack or weakness of motive‑‑‑Lack of motive or its weakness was never fatal for prosecution if case otherwise stood proved through direct evidence with regard to occurrence.

Imtiaz v. State 2001 SCMR 1334 ref.

Tahseen Irfan and Mian Ghulam Hussain for Appellants (at State expenses).

Ch. Ghulam Hussain for the Complainant.

Bashir Ahmad Gill for the State.

Date of hearing: 28th March, 2002.

2002 P Cr. L J 1954

[Lahore]

Before Zafar Pasha Chaudahry, J

Rai BASHARAT SAJJAD‑‑‑Appellant

Versus

NAWAZ and others‑‑‑Respondents

Criminal Appeal No.554 and Criminal Revision No‑302 of 2002, heard on 1st February, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302(b) & 302(c)‑‑‑Appreciation of evidence‑‑‑Injury on head of deceased had been ascribed by prosecution to both accused, but according to observation of doctor, possibility could not be ruled out that injury could be result of one blow‑‑‑Injuries on person of deceased had not been explained‑‑‑Number of injuries which were in nature of abrasions, suggested that some scuffle in between the parties took place and during heat of passion injury was caused on head of deceased which resulted into his death‑‑‑Two witnesses had firmly supported prosecution and deposed on oath that both injuries had been caused by two accused simultaneously which landed on head of deceased‑‑‑Death of deceased was not result of any pre‑planned or premeditation, but appeared to be a sudden affair‑‑­No explanation was coming forth with regard to other injuries‑‑­Conviction of accused under S.302(b), P.P.C.; not appearing to be justified, same was altered to one under S.302(c); P.P.C.‑‑­Sentence of 15 years R.I.' each to both accused would meet ends of justice, in circumstance and accused were awarded sentences accordingly.

Mansoor‑ul‑Islam Khan Joya and Miss Iram Sajjad Gull for Appellant.

Zafar Iqbal Chohan for the Complainant.

Muhammad Ayub for the State.

Date of hearing: 1st February, 2002.

2002 P Cr. L J 1965

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman and M.A. Shahid Siddiqui, JJ

ANWAR‑BAIG‑‑‑Appellant

Versus

THE STATE‑‑Respondent

Criminal Appeal No. 1240 of 1999, decided on 7th January, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/338‑D/34‑‑‑Appreciation of evidence‑‑‑Accused were sons of paternal aunt of deceased and hotel in front of which occurrence had taken place was owned by relative of both parties‑‑‑Presence of both parties at relevant time at place of occurrence was ‑not improbable‑‑­Complainant and prosecution witnesses had fully explained their presence at spot at relevant time and nothing was available on record to doubt their presence‑‑‑Motive had not only been admitted by accused, but had also been fortified by alleging that deceased had also outraged the modesty of daughter of accused‑‑‑Nothing was on record that accused had pleaded to have acted in exercise of his right of self‑defence‑‑‑Plea of self‑defence was introduced by accused for the first time by way of suggestion to prosecution witnesses‑‑‑Plea of accused that he had sustained injuries at the hands of deceased before he opened fire appeared to be unfounded and afterthought‑‑‑Prosecution witnesses though related to deceased, but they did not appear to have deposed falsely‑‑‑Testimony of witnesses could be safely relied upon‑‑‑Finding arrived at by Trial Court, could not be differed with‑‑Death sentence awarded to accused by Trial Court was confirmed under S.338‑D, P.P.C.

1969 SCMR 808 ref.

(b) Criminal trial‑‑‑

‑‑‑‑Specific .plea taken by accused‑‑‑Onus to prove‑‑‑When an accused would take a specific plea, onus would invariably shift to him and he would be required to produce evidence and prove his plea or his plea at least should be supported by attending circumstances and it should not be unfounded altogether.

Faiz Muhammad Khosa for Appellant.

Sardar Muhammad, Latif Khan Khosa for the Complainant.

Najam‑ul‑Hassan Gill for the State.

Date of hearing: 7th January, 2002.

2002 P Cr. L J 1970

[Lahore]

Before Malik Muhammad Qayyum and Raja Muhammad Sabir, JJ

MUHAMMAD AKHTAR‑‑‑Petitioner

Versus

PRESIDENT, SUMMARY MILITARY COURT NO. 70 and others‑‑‑Respondents

Writ Petition No. 1895 of 1989, heard on 22nd January, 2001.

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

‑‑‑‑S. 5(2)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑ ‑Allegation against accused was that fraudulent entries made in Register R.L.II by Patwari were subsequently verified by him while he was working as Girdawar Kanungo Halqa concerned ‑‑‑Patwari who was alleged to be real culprit and was absconding was later on tried and was acquitted of charge‑‑‑Prosecution had stated that record was not available and even order passed against the accused by Summary Military Court was not with the prosecution‑‑‑High Court allowing Constitutional petition of the accused against order of Summary Military Court, declared the conviction and sentence awarded by said Court to be without lawful authority and of no legal effect.

Hamid Khan for Petitioner.

Ch. Muhammad Ashraf, Asstt. A.‑G. for Respondents.

Date of hearing: 22nd January, 2001.

2002 P Cr. L J 1972

[Lahore]

Before Mian Muhammad Najam‑uz‑Zaman and M.A. Shahid Siddiqui, JJ

NEIMAT ULLAH KHAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 1108 of 1999, heard on 19th March, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Sentence, reduction in‑‑‑Case was of promptly lodged F.I.R. in which all necessary details had been given‑‑‑Promptness in lodging F:I.R. had eliminated all possibilities of fabrication and false involvement of accused‑‑‑Eye‑witnesses who were natural witnesses had supported prosecution case verbatim‑‑‑Complainant and eye‑witness who was uncle of deceased was present in house of deceased at relevant .time and he followed deceased when deceased was called by co‑accused and had witnessed the occurrence‑‑‑Other eye­witness who was a resident of the area was passing by when occurrence took place‑‑‑Place of occurrence being common thoroughfare, presence of said eye‑witness at spot at relevant time was natural and free of doubt‑‑‑Both eye‑witnesses were subjected to lengthy cross‑examination, but defence had failed to shatter credibility of witnesses nor it had succeeded to bring on record even an iota of evidence to show that said witnesses had any malice to falsely implicate accused in the case‑‑‑Ocular account stood corroborated by medical evidence‑‑‑Some discrepancies pointed out by accused in statements of eye‑witnesses during cross-­examination were not of the nature as to cast doubt on their credibility as their statements inspired confidence for placing implicit reliance on them even in absence of any corroborative piece of evidence‑‑­Medical evidence had provided full support to the ocular account—Time of occurrence, weapons used and injuries stated by eye‑witnesses were all confirmed by medical evidence‑‑‑Prosecution, however, failed to prove motive part of its case and to place on record any documentary evidence to show that at the time of occurrence accused was not teenager whereas Birth Certificate produced by accused had shown that on the day of occurrence he was about 17 years and 4 months‑‑‑Prosecution had proved its case against accused to the hilt, but since it had failed to prove motive as set up in F.I.R. coupled with the fact that accused at time of occurrence was teenager taking lenient view, sentence, of death awarded to accused by Trial Court was reduced to imprisonment for life.

Asghar Khan Rokhari for Appellant.

Nazeer Ahmad Qureshi for the Complainant.

Abdul Rasheed Moman for the State.

Date of hearing: 19th March, 2002.

2002 P Cr. L J 1989

[Lahore]

Before Khalil‑ur‑Rehman Ramday, J

ABDUL HAQ alias MIRZA‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.2790/B of 2001, decided on 6th July, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Accused though was present at the place of occurrence at relevant time, but he had not played any substantial role in the crime‑‑‑No recovery was effected from the accused or at his instance and accused was placed only in Column No.2 of challan‑‑‑Accused was directed to be released on bail, in circumstances.

Atta Ullah Mirza for Petitioner.

Rai Noor Muhammad Qasir Kalyar for the State.

Complainant in person.

2002 P Cr. L J 1992

[Lahore]

Before Riaz Kayani and Bashir A. Mujahid, JJ

LIAQAT ALI ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 113/J of 1996, heard on 3rd July, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Sentence, reduction of‑‑‑Accused was nominated in promptly lodged F. I. R. ‑‑‑Parties were closely related inter se and there was no reason for false implication of accused or substitution by letting off real culprit‑‑‑Prosecution witnesses who were eye‑witnesses were natural witnesses‑‑‑Ocular account had been fully corroborated by medical evidence and recovery of weapon of offence‑‑Prosecution case having fully been proved against accused, conviction recorded against him by Trial Court could not be interfered with‑‑‑Both accused and deceased exchanged abuses and grappled with each other at spot at the time of occurrence and it was not known as to what transpired between them immediately prior to occurrence‑‑‑Accused caused only one fire shot at the deceased and although he was armed with mauser and deceased was at his mercy being empty‑handed like other witnesses, but he did not repeat the fire‑‑‑Such extenuating circumstances made the case a fit one where sentence of death was to be reduced to imprisonment for life for safe administration of justice‑‑‑Maintaining conviction of accused, sentence was reduced accordingly.

Nemo for Appellant.

Arif Ali Hazoor for A.‑G. for the State.

Date of hearing: 3rd July, 2001.

2002 P Cr. L J 1996

[Lahore]

Before Tassaduq Hussain Jilani and Asif Saeed Khan Khosa, JJ

MUHAMMAD ASGHAR and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.333/J of 2000, heard on 28th March, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/34‑‑‑Appreciation of evidence‑‑‑Case was of a daylight occurrence and F.I.R. had been lodged with sufficient promptitude with a specific allegation against accused regarding causing fatal fire‑arm injury to deceased ‑‑‑Abscondence of accused had also provided corroboration to the allegation levelled against accused‑‑‑One of the prosecution witnesses though was son of deceased, but other two witnesses were not shown to be closely connected with deceased‑‑‑Defence had not established that eye‑witnesses produced by prosecution had any enmity or serious ill‑will against accused to falsely implicate him in a case of such a nature‑‑‑Fatal fire‑arm injury allegedly caused by accused on the head of deceased had been fully supported by medical evidence‑‑‑Statements made by eye­witnesses were quite consistent and had found sufficient support from medical evidence‑‑‑Evidence produced by prosecution implicating accused in murder of deceased was confidence‑inspiring and implicit reliance could be placed upon the same‑‑‑Convictions and sentences recorded by Trial Court against accused were upheld and maintained‑‑­Allegation against co‑accused was identical to the acquitted co‑accused‑‑­Said allegation against acquitted co‑accused had not been believed by Trial Court and co‑accused was acquitted by Trial Court extending him benefit of doubt‑‑‑Same benefit of doubt ought to be extended to co‑­accused as well as it was unsafe to withhold from co‑accused benefit of doubt which had already been extended to his co‑accused by Trial Court‑‑‑By way of abundant caution for safe administration of criminal justice, co‑accused was also acquitted of charge and was ordered to be released from jail.

Muhammad Arshid Khan for Appellant (at State expenses).

Muhammad Anwar Tiwana for the State.

Date of hearing: 28th March, 2002.

2002 P Cr. L J 2003

[Lahore]

Before Ali Nawaz Chowhan, J

HABIB‑UR‑REHMAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 106/T of 2001, heard on 24th January, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 381‑A/411-‑‑Anti‑Terrorism Act (XXVII of 1997), S.7‑‑‑Appreciation of evidence‑‑‑Allegation against accused was that he stole car parked outside the mosque‑‑‑Complainant in his cross‑examination had stated that he did not join Chowkidar of the mosque in investigation, who had seen the accused taking away the car and that he did not ask the Chowkidar to identify the accused‑‑‑Complainant also did not join the owner of tyre‑repair shop where car was found standing for repair at the relevant time‑‑‑Car having not been lifted or snatched, no offence had been made out under S.7‑A of Anti‑Terrorism Act, 1997 calling for punishment under S.7‑B of that Act‑‑‑Prosecution case was riddled with doubts and story of prosecution was unbelievable‑‑‑Trial Court did not appraise evidence properly keeping in view all the circumstances‑‑‑Case against accused having not been proved judgment of. Trial Court passed against accused, was set aside and accused was released from jail.

Malik Rab Nawaz Noon for Appellant.

Malik Abdul Qayyum for the State.

Date of hearing: 24th January, 2002.

2002 P Cr. L J 2014

[Lahore]

Before Ali Nawaz Chowhan and Tanvir Bashir Ansari, JJ

Ch. MUHAMMAD ANWAR ‑‑‑Petitioner

Versus

SENIOR SUPERINTENDENT OF POLICE, INVESTIGATING CELL, LAHORE and 2 others‑‑‑Respondents

Writ Petition No.7994 of 200'2, decided on 16th July, 2002.

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

‑‑‑‑S. 156‑‑‑Investigation into cognizable case‑‑‑Re‑investigation‑‑Case can be re-investigated even after the submission of the challan in the Court.

Aftab Ahmad v. Hussain and others PLD 1987 SC 13; Muhammad Yousaf v. The State 2000 SCMR 453; State v. Bashir PLD 1997 SC 408 and Ata Ullah v. Mumtaz Kahlon 1973 PCr.LJ 69 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 337/342/354‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑ Quashing of fresh investigation ‑‑‑Re­investigation in the case was not needed as the challan had been submitted in the case a long time back with the evidence collected by the prosecution against which the complainant had two remedies‑‑‑If further incriminating material collected through fresh investigation had not been placed with the already submitted report, the same might be placed before the Trial Court for consideration‑‑‑Otherwise, if the re‑investigation had only ended with the formulation of a second opinion of a Police Officer based on the already collected material forming part of the report under S.173, Cr.P.C. it would have no value and would remain with the said Police Officer‑‑‑Trial Court, therefore, was directed in the interest of justice to hear both sides on the question of addition of offences which were deleted previously‑‑‑Constitutional petition was disposed of accordingly.

Aftab Ahmad v. Hussain and others PLD 1987 SC 13; Muhammad Yousaf v. The . State 2000 SCMR 453; State v. Bashir PLD 1997 SC 408 and Ata Ullah v. Mumtaz Kahlon 1973 PCr.LJ 69 ref.

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

‑‑‑‑S. 173‑‑‑Report of Police Officer‑‑‑Report under S.173, Cr.P.C., even if filed earlier, can be filed again on discovery of new facts and collection of further evidence.

Ch. Abdur Rasheed for Petitioner.

Mian Maqsood Ahmad for Respondent No.3.

2002 P Cr. L J 2034

[Lahore]

Before Muhammad Akhtar Shabbir, J

MEHBOOB AHMAD‑‑‑Petitioner

Versus

THE STATE and 2 others‑‑‑Respondents

Criminal Revision No. 109 of 2001/BWP, decided on 28th January, 2002.

(a) Juvenile Justice System Ordinance (XXII of 2000)‑‑‑

‑‑‑‑S. 2(b)‑‑‑Child‑‑‑Determination of age‑‑‑Medical opinion cannot override the evidence of birth certificate.

Muhammad Rafique v. The State 1987 PCr.LJ 1360; Muhammad Ishaq v. Muhammad Nadeem and another 2001 MLD 1561 and Muhammad Anwar and others v. The State 1976 PCr.LJ 1325 ref.

(b) Juvenile Justice System Ordinance (XXII of 2000)‑‑‑

‑‑‑‑Ss. 5 & 2(b)‑‑‑Penal Code (XLV of 1860), Ss.302/148/149‑‑‑Transfer of. case of accused to Juvenile Court‑‑‑Juvenile Court had found the accused to be of less than 18 years of age by means of the impugned order‑‑‑Sessions Judge (Juvenile Court) had preferred the birth certificate of accused over their medical reports for determination of their age and in doing so he had not committed any illegality or material irregularity‑‑­Impugned order was valid and suffered from no infirmity.

Muhammad Rafique v. The State 1987 PCr.LJ 1360; Muhammad Ishaq v. Muhammad Nadeem. and another 2001 MLD 1561 and Muhammad Anwar and others v. The State 1976 PCr.LJ 1325 ref.

Aslam Javed Minhas for Petitioner.

Ch. Muhammad Amjad Khan for Respondents Nos.2 and 3.

2002 P Cr. L J 2063

[Lahore]

Before Ali Nawaz Chowhan, J

NAZAR MUHAMMAD ‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Revision Petition No.492 of 2002, decided on 15th July, 2002.

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

‑‑‑‑S. 514‑‑‑Forfeiture of bond‑‑Standing surety for someone is an act of benevolence and unless and until it is established that the surety had got the accused released on bail for any ulterior motive, the surety is not to be treated harshly nor punished severely without there being extraordinary circumstances calling for full forfeiture of the surety bond.

Sardar Khan and others v. The State 1969 PCr.LJ 447; Ghulam Haider v. Karim Bakhsh PLD 1963 SC 47; Muhammad Khan v. The State 1986 PCr.LJ 2028; Bahadur Khan v. The State 1976 PCr.LJ 1283 and Dilshad Ahmad etc. v. The State 2000 PCr.LJ 172 ref.

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

‑‑‑‑Ss. 514 & 439‑‑‑Penal Code (XLV of 1860), Ss.302/324/353/34‑‑­Forfeiture of surety bond‑‑‑Trial Court after abscondence of accused took proceedings against the surety (petitioner) under S.514, Cr.P.C. and imposed full penalty of Rs.1,00,000 on him‑‑‑Standing surety for same one being an act of benevolence the surety was not to be treated harshly' nor punished severely unless he was proved to have got the accused released on bail for any ulterior motive or some extraordinary circumstances existed calling for full forfeiture of his surety bond‑‑‑After the death of the accused for whom the petitioner had stood surety, the main criminal case itself had abated, benefit of which would go to the petitioner who was involved in a side issue of having furnished a bail bond for the accused‑‑‑Impugned order was consequently set aside and the revision petition was accepted accordingly.

Sardar Khan and others v. The State 1969 PCr.LJ 447; Ghulam Haider v. Karim Bakhsh PLD 1963 SC 47; Muhammad Khan v. The State 1986 PCr.LJ 2028; Bahadur Khan v. The State 1976 PCr.LJ 1283 and Dilshad Ahmad etc. v. The State 2000 PCr.LJ 172 ref.

Ch. Muhammad Abdul Saleem for Petitioner.

Irfan Qadir for the State.

2002 P Cr. L J 2078

[Lahore]

Before Ijaz Ahmad Chaudhary, J

MUKHTAR alias MUKHI‑‑‑Appellant

Versus

THE STATE Respondent

Criminal Appeals Nos. 1162 and 1164 of 2000, decided on 26th August, 2002.

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

‑‑‑‑Ss. 10(4) & 11‑‑‑Appreciation of evidence‑‑‑Trial Court had not relied upon the statements of‑the complainant and another prosecution witness‑‑‑Victim girl had also been disbelieved to the extent of commission of Zina with her‑‑‑Accused had been convicted and sentenced by the Trial Court under S.11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 on the solitary statement of the victim‑‑‑High Court looked into the propriety of conviction and sentence passed against the accused‑‑‑Complainant had been disbelieved m the case‑‑‑Victim girl had remained with her family for three. days‑‑­Statement of victim had been recorded by the police after three days of her recovery‑‑‑No explanation had been given for the delayed recording of her statement by the police‑‑‑Chances of concocted story in connivance with the police could not be ruled out‑‑‑Even otherwise victim had been disbelieved by the Trial Court as regards commission of Zina with her‑‑‑Victim girl was not a truthful witness as she had made a contradictory statement before the Trial Court‑‑‑Defence witness who was a member of the monitoring team. which had recorded her earlier statement, which she had later denied, had stated before the Trial Court that she had so got recorded her earlier statement in the presence of the members of the monitoring team‑‑‑Statement of the victim required independent corroboration which though was available with the prosecution in the shape of three persons who had produced the victim before the complainant yet these witnesses who could be the best witnesses to prove the alleged recovery of the victim from the accused, if any, were neither produced by the prosecution at the trial nor their statements were got recorded by the police during investigation, hence the best piece of evidence to prove the charge under S.11 of the Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979) had been withheld by the. prosecution‑‑‑Solitary statement of the victim, in the circumstances, was not sufficient to connect the accused with the crime‑‑‑Prosecution had failed to prove the case beyond any shadow of doubt‑‑‑Conviction and sentence passed against the accused were set aside and they were acquitted of the charge against them.

Sardar Ali Chaudhry and Sh. Ashfaq Ahmad for Appellant.

Badar Munir Malik for the State.

Date of hearing: 23rd August, 2002.

2002 P Cr. L J 2084

[Lahore]

Before Mian Nazir Akhtar and Mian Muhammad Najam‑uz‑Zaman, JJ

Raja MUHAMMAD HANIF‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 1360 of 2000, 194 of 2001 and Writ Petitions Nos. 14795, 18844 and 18845 of 2001, heard on 29th May, 2002.

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

‑‑‑‑S. 9(iv)(v)‑‑‑Appreciation of evidence‑‑‑Alleged "Benamidars" not given an opportunity of being heard‑‑‑Case remanded‑‑‑Wife and brother‑in‑law of accused who were "Benamidars" were not afforded an opportunity of being heard but the properties standing in their names had been forfeited on the presumption that these were purchased by the funds provided by the accused‑‑‑Said "Benamidars" were entitled to have a show‑cause notice regarding the proposed forfeiture of their properties and to be heard before the Accountability Court who also had a right to cross‑examine the prosecution witnesses and to produce their own evidence to establish their ownership‑‑‑Examination‑in‑chief of a few witnesses who had deposed about the Benami nature of the transactions had already been recorded in the case‑‑‑Interest of justice could be adequately met if the alleged "Benamidars" were allowed to recall the said prosecution witnesses for purposes of cross‑examination and thereafter to produce their own oral as well as documentary evidence to prove their independent title‑‑‑Conviction and sentence of accused were consequently set aside and the case was remanded to the Accountability Court with the direction to commence the retrial in the light of the aforesaid observations and to pass a fresh judgment on the basis of the material on record in accordance with law.

Mst. Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408 and The State v. Mehmood Hussain Criminal Petition No.221 of 2001, decided on 21‑10‑2001 ref.

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

‑‑‑‑S. 9‑‑‑Alleged "Benamidars", right of‑‑‑Alleged "Benamidars" are entitled to have a show‑cause notice regarding the proposed forfeiture of their properties and to be heard before an Accountability Court and they, also have a right to cross‑examine the prosecution witnesses and to produce their own evidence to establish their ownership.

Mst. Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408 and The State v. Mehmood Hussain Criminal Petition No.221 of 2001, decided on 21‑10‑2001 ref.

Ch. Aitzaz Ahsan for Appellant.

Raja Muhammad Bashir for P.G.A. NAB.

Date of hearing: 29th May, 2002.

2002 P Cr. L J 16

[Peshawar]

Before Tariq Parvez Khan and Muhammad Qaim Jan Khan, JJ

LAIQ NAWAZ---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.22 of 2001, decided on 7th June, 2001.

Penal Code (XLV of 1860)---

----Ss. 302(b)/311---Sentence of Ta'zir awarded on compromise--­Validity---Genuineness of compromise between the parties was not doubted, but since the son had killed his father it was found to be a brutal murder---Such finding could only be given after recording evidence in the case which was not done---If all "Walies" had either waived off or had compounded the offence, no punishment as "Ta'zir" could be awarded---Conviction and sentence of accused were consequently set aside and. he was acquitted of the charge.

Dost Muhammad Khan for Appellant.

Shaukat Hayat Khan Khakwani, Dy. A.-G. for the State.

Date of hearing: 7th June, 2001.

2002 P Cr. L J 22

[Peshawar]

Before Tariq Parvez Khan and Muhammad Qaim Jan Khan, JJ

MUHAMMAD AAMIR REHMAN---Appellant

versus

THE STATE and another---Respondents

Criminal Appeals Nos.67, 68, 69, Murder Reference No.7 of 1999 and Criminal Revision No.2 of 2000, decided on 18th April, 2001.

Penal Code (XLV of 1860)---

----Ss. 302/34, 365-A & 120-B---Jurisdiction of Trial Court---Accused had been convicted on the basis of the charge framed and part of the evidence recorded by the Court which had no jurisdiction to try the case---Convictions and sentences of accused were consequently set aside and the case was remanded to the Special Court for de novo trial.

Dost Muhammad Khan for Appellant.

Ghulam Hur Khan for the State.

S. Zafar Abbas Zaidi for the Complainant.

2002 P Cr. LJ 28

[Peshawar]

Before Talaat Qayyum Qreshi, J

KHALIQ DAD---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.201 of 2001, decided on 20th August, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.334 & 337---Bail--­Accused was charged in the F.I.R. for cutting the nose and hair of the head of the complainant with a blade---According to report of the Doctor 3/4th nose' of the complainant had been cut---Act of accused was not only gruesome but grave in nature also and was worse than the assassination of the victim who was now to live with her nose chopped off---Complainant was made to suffer for all times' to come and her plight could be well-imagined---Intention behind the occurrence was to make the victim a symbol of terrorism of the accused---Prosecution version was supported, by the eye-witness and medico -legal report---Accused was refused bail in circumstances.

Abdul Karim for Petitioner.

Tariq Javed, A.A.-G. for the State.

Raja Shafaqat Khan Abbasi for the Complainant.

Date of hearing: 20th August, 2001.

2002 P Cr. L J 61

[Peshawar]

Before Tariq Parvez Khan and Muhammad Qaim Jan Khan, JJ

ANWAR ALI SHAH---Appellant

versus

THE STATE and another---Respondents

Criminal Appeal No. 11 of 1998, decided on 7th June, 2001.

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

----Ss. 302, 449, 452, 337-A(ii) & 337-A(iii)---Appreciation of evidence---F. I. R. had been promptly lodged by the injured complainant---Medical evidence and incriminating recoveries had duly supported the prosecution version---Eye-witnesses being inmates of the house of occurrence were natural witnesses having no enmity or rancour with the accused and they had given a consistent statement in unequivocal terms---Accused being already known to the prosecution witnesses, no question of false implication or substitution could arise---Motive for the occurrence had been established--­Disappearance of accused after the incident for sufficient time had further strengthened the prosecution case---Convictions and sentences of accused were upheld in circumstances.

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

----Ss. 302, 449, 452, 337-A(ii) & 337-A(iii)---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Accused had fired at the complainant with his pistol and also belaboured three prosecution witnesses with the butt of his pistol and got them injured---Presence of accused at the scene of occurrence and his participation in the commission of the offence was duly established on record---Trial Court had given flimsy reasons for the acquittal of accused which were not based on any cogent evidence---Accused was consequently convicted and sentenced accordingly by accepting the appeal against his acquittal.

Dost Muhammad Khan for Appellant.

Shaukat Hayat Khan Khakwani, Dy. A.-G. for the State.

Muhammad Karim Anjum Qasuria for the Complainant.

Date of hearing: 16th January, 2001:

2002 P Cr. L J 77

[Peshawar]

Before Talaat Qayyum Qureshi, J

KHALID---Petitioner

versus

HAKEEM KHAN and another---Respondents

Criminal Miscellaneous Application No.551 of 2001, decided on 18th June, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), S.302/34---Application for cancellation of bail---Accused had been assigned only the role of grappling in the occurrence---Complainant had compromised the matter with the main accused who had been charged for effective firing on the deceased and whose case stood on a higher pedestal than that of accused---Order granting pre-arrest bail to accused was neither perverse nor arbitrary nor fanciful and the same had not been obtained through fraud or misrepresentation-- -Accused had not misused the concession of bail---Petition for cancellation of bail was dismissed in limine in circumstances.

Yousaf Shah for Petitioner.

2002 P Cr. L J 124

[Peshawar]

Before Sardar Muhammad Raza, CJ

BIHAR ALI ---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous Application No. 1110 of 2001, decided on 17th October, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---West Pakistan Arms Ordinance (XX of 1965), S.13--­Explosive Substances Act (XI of 1908), S.5---Surrender of Illicit Arms Act (XXI or 1991), S.7---Bail, grant of---Recovery was not in order--­Matter with regard to enmity of the accused with the police constable who was instrumental to the registration of the case against the accused, was to be pleaded at the trial---Specific serial number of the hand-grenade was given in the Murasila as well as in the recovery memo., but mention of the same was missing in the report of Bomb Disposal Squad---Whether the recovery was made at the time and place alleged by the prosecution and whether the hand-grenade examined by the Bomb Disposal Squad at all pertained to the present case, was to be determined at trial---Case against the accused being of further inquiry, bail was granted to the accused.

Nek Nawaz Khan Awan for Petitioner.

Abdul Karim for the State.

Date of hearing: 16th October 2001.

2002 P Cr. L J 144

[Peshawar]

Before Shahzad Akhtar Khan and Ejaz Afzal Khan, JJ

ATTAULLAH---Appellant

versus

ABDUR RAZAQ and another---Respondents

Criminal Appeal No.259 of 1999, decided on 9th April, 2001.

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

----S. 302/34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.24---Appeal---When maintainable ----Appeal to the Federal Shariat Court would lie under S.24 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, only when an order either by a Court of Session or a Magistrate authorized under S.30, Cr.P.C. imposing a sentence of imprisonment for a term exceeding two years had been passed---No order imposing a sentence of imprisonment for a term exceeding two years having been passed under the said Ordinance in the case, appeal against conviction of accused under S.302/34, P.P.C. and the Murder Reference were maintainable in the High Court.

Muhammad Abbas v. The State 1984 SCMR 129; Zafar Iqbal and others v. The State 1984 SCMR 167; Tajuddin v. The State 1984 SCMR 506; Shamsuddin v. The State Criminal Suo Motu No. 1 of 1995 and State v. Pirak 1997 Per. LJ 1900 ref.

(b) Interpretation of statutes---

---- Where meanings and terms of the section of a statute are clear, even a long and a uniform course of interpretation may be overruled if it is repugnant to the very statute.

Khawaj Muhammad Khan for Appellant.

Nek Nawaz Khan for the State.

Abdul Sattar Khan for the Complainant.

Date of hearing: 2nd February, 2001.

2002 P Cr. L J 147

[Peshawar]

Before Ejaz Afzal Khan, J

SHADI KHAN---Petitioner

versus

THE STATE---Respondent

Criminal Miscellaneous No.893 of 2001, decided on 30th August, 2001.

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

----S. 497---Surrender of Illicit Arms Act (XXI of 1991), S.7---Bail--­Nothing was available on record showing previous conviction of the accused or any other antecedents calling for ~ the award of maximum 'punishment---Case of accused, therefore, could not be held to be one falling within the ambit of the prohibitory clause of S.497(1), Cr.P.C., because according to the Statute itself the quantum of imprisonment was to be regulated by the antecedents of the accused---Court while considering the bail application was not supposed to keep in view the maximum punishment provided by law but the one likely to be entailed by the facts and circumstances of the case---Bail was allowed to accused in circumstances.

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

---S. 497---Bail---Principle---While considering an application for bail, the Courts are not supposed to keep in view the maximum sentence provided by the relevant law but the one likely to be entailed by the facts and circumstances of the case.

Abdul Fayaz Khan for Petitioner.

Abdul Karim Khan for the State.

Date of hearing: 30th August, 2001.

2002 P Cr. L J 149

[Peshawar]

Before Tariq Parvez and Muhammad Qaim Jan Khan, JJ

NAZIR AHMAD---Appellant

versus

THE STATE and another---Respondents

Criminal Appeal No. 1 l of 2000, decided on 11th September, 2001.

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

----S. 302---Circumstantial evidence, appreciation of---Court is duty ­bound to be on guard while appraising such circumstantial evidence and to see that each circumstance was proved independently and was so connected with the other circumstances that it constituted an unbroken chain and led to no other inference, but to the guilt of the assailant.

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

----S. 302---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Recovery proceedings---Two witnesses of the recovery of the pistol effected from a drain were Police Officers---One of them had totally omitted to state that pistol was recovered at the pointation of the accused, but had said that it was he who recovered the same from the drain and second witness was not produced- --investigating Officer though in his statement had stated that the recovery was made on the pointation of the accused, but his status in the recovery process would remain as Investigating Officer whereas the attesting witnesses would be the eye­witnesses of the factum of recovery---Where an eye-witness had not stated a fact with regard to recovery which allegedly took place in his presence, the statement of Investigating Officer would not be sufficient for believing such recovery---Contradiction between the statement of recovery witness and the site plan was found with regard to recovery of pistol---Case was that of motiveless killing---No identification parade was arranged while the apprehension of wrong identity of the accused could not be ruled out and it was, therefore, incumbent on the Investigating Officer to have arranged identification parade---Trial Court had fallen into an error while examining the accused under S.342, Cr.P.C.---First document of prosecution, namely Murasila was inconsistent with regard to timing as given in the inquiry sheet prepared by the doctor---No eye­witness account of occurrence was available on record and the recovery of pistol at the pointation of the accused was open to serious doubt--­Positive report of Fire-arm Expert with regard to crime articles was received after about sixteen days of the occurrence which was of no legal value to sustain the conviction of the accused---Conviction and sentence awarded to the accused by the Trial Court, were set aside and he was set at liberty.

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

----S. 302---Appreciation of evidence---Motive---In absence of motive and evidence of motive either during investigation or at the trial inference would be that the incident was a motiveless killing.

Dost Muhammad Khan for Appellant.

Shaukat Hayat Khan Khakwani, Dy. A.-G. for the State.

Syed Zafar Abbasi Zaidi for the Complainant.

Date of hearing: 11th September, 2001.

2002 P Cr. L J 154

[Peshawar]

Before Talaat Qayum Qureshi and Ejaz Afzal Khan, JJ

AFZAL KHAN ---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous Nos.432 to 434 of 2001, heard on 22nd June.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.365-A/148/149---Bail--­Abductee, immediately after his release from the clutches of accused had, in his statement under S.164, Cr.P.C., narrated the entire episode in detail charging the accused for his abduction and assigning specific role to each of them---Evidence regarding demand of ransom amount by accused and receipt of the same by them was also available on record in the shape of statement under S.161, Cr.P.C. of the prosecution witness--­Accused had taken the plea of alibi at a belated stage which was not supported by any convincing evidence---Opinion of Police Officers regarding innocence of accused was not binding on the Court---Accused were, prima facie, connected with commission of the offence punishable with death or imprisonment for life---Bail was declined to accused in circumstances.

Barrister S. Masood Kausar for, Petitioner.

Jamshaid Khan for the State.

Javaid A. Khan for the Complainant.

Date of hearing: 22nd June; 2001.

2002 P Cr. L J 159

[Peshawar]

Before Sardar Muhammad Raza, CJ

Mst. SHIREEN TAJA---Petitioner

versus

THE STATE and 2 others--Respondents

Criminal Revision No.93 of 1999, heard on 24th October, 2000.

Penal Code (XLV of 1860)---

---Ss. 302/324/109/148/149---Criminal Procedure Code (V of 1898), Ss.249 & 439---Accused was released under S.249, Cr.P.C.---Validity--­Trial Court had released the accused on bail and stopped the proceedings in the case under S.249, Cr.P.C. because the eye-witnesses having absconded, prosecution could not produce them in Court---Prosecution and the complainant party were now in a position to produce the witnesses in Court and they could resort to the Trial Court for revival of the trial as the accused had only been released on bail under S.249, Cr.P.C. and were never acquitted under S.249-A, Cr.P.C.---Trial could commence from the stage it was discontinued---Revision petition was dismissed with such remarks.

Abdul Latif Afridi for Petitioner.

Muhammad Jamil Qamar for the State.

Date of hearing: 24th October, 2000.

2002 P Cr. L J 163

[Peshawar]

Before Tariq Parvez and Muhammad Qaim Jan Khan, JJ

SAWAR GUL---Appellant

Versus

THE STATE and 2 others-- -Respondents

Criminal Appeal-No. 15 of 1998, decided on 16th May, 2001.

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

----S. 302---Qanun-e-Shahadat (10 of 1984), Art. 46---Appreciation of evidence---Dying declaration made by the deceased qua participation of two acquitted accused in the occurrence had been disbelieved---Deceased had received only one fire-arm injury at his back and the assailant had fired at him while sitting behind a two or three feet high Banna--­Identification of the assailant by the deceased, in circumstances, was open to definite doubt---Eye-witness claiming to be present on the spot must have satisfied the mind of the Court through some physical circumstance or through some corroborative evidence about his presence thereat, but no corroboration from any source was available to confirm his presence---Said eye-witness had also twisted the story as given by the deceased in F.I.R.---Parties admittedly being on inimical terms if there was motive to commit the crime, complainant would be equally motivated either to falsely charge the accused or to charge him with exaggeration--­Accused was acquitted in circumstances.

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

----S. 302---Appreciation of evidence---Eye-witness---Eye-witness who claims his presence on the spot at the time of incident must satisfy the mind of the Court by some physical circumstance or corroborative evidence in support of his presence.

Syed Zafar Abbas Zaidi for Appellant.

Shaukat Hayat Khan Khakwani, Dy. A.-G. for the State.

Abdul Latif for the Complainant.

Date of hearing: 16th May, 2001.

2002 P Cr. L J 168

[Peshawar]

Before Talaat Qayum Qureshi and Ejaz-ul-Hassan, JJ

Pirzada BASHIR AHMAD SHAH---Petitioner

versus

THE STATE---Respondent

Criminal Bail Application No.75 of 2001, decided on 31st August, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss.409/468/477-A---Prevention of Corruption Act (II of 1947), S.5(2)---Bail, grant of ---Principles--­Amount involved in the case though was sufficiently large, but that fact by itself would be no ground for refusing bail particularly when the investigation of the case was not complete and the commencement of trial was likely to take considerable time---No useful purpose would be served if the accused was kept behind the bars for indefinite period because as a rule bail was not to be withheld as a punishment---Bail also could not be withheld only for the reason that the Government funds were involved as the same would not be a ground by itself for refusal of bail ---Co­-accused had already been released on bail and case against the accused needed further inquiry---Accused deserved the concession of bail on the basis of rule of consistency also.

Dost Muhammad Khan and Fida Gul Khan for Petitioner.

Tariq Javed Khan, Dy. A.-G. for the State.

Date of hearing: 31st August, 2001.

2002 P Cr. L J 170

[Peshawar]

Before Mian Shakirullah Jan and Shahzad Akbar Khan, JJ

FAYYAZ ALI SHAH and 2 others---Petitioners

versus

KHURSHID and another---Respondents

Criminal Miscellaneous Application No.988 of 2001, decided on 13th September, 2001.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S.302/34---Bail, grant of---Accused had been directly charged in the report of the complainant who had seen the accused near the place of occurrence duly armed decamping from the spot---No previous enmity was found between the parties which could furnish motive for false implication of the accused---Accused had also remained absconder for some time---Grant of bail to the co-accused was of no help to the accused as the co-accused had been granted bail on plea of alibi---Prosecution having made out a prima facie case against the accused, they were not entitled to the concession of bail.

Khawaja Muhammad for Petitioners.

Manzoor Khalil for the State.

Muhammad Attique Shah for the Complainant.

Date of hearing: 13th September, 2001.

2002 P Cr. L J 181

[Peshawar]

Before Shah Jehan Khan, J

ZAHOOR and another---Petitioners

versus

SAID-UL-IBRAR and another---Respondents

Criminal Revision Petition No.22 of 2001, decided on 19th September, 2001.

Criminal Procedure Code (V of 1898)---

----Ss. 200, 247, 417(2) & 439(5)---Prevention of Corruption Act (II of 1947), S. 5---Private complaint, dismissal of ---Revision--­Maintainability---Order passed under S.247, Cr.P.C. was appealable under S.417(2), Cr.P.C. subject to the grant of leave to appeal and it was immaterial whether the order of acquittal was passed on some evidence or for non-prosecution in a complaint case, the aggrieved complainant could approach the High Court under S.417(2), Cr.P.C. for leave to appeal--­No revision petition tinder S.439(5), Cr.P.C. could be entertained where a right of appeal was provided tinder Criminal Procedure Code, 1898--­Revision petition was dismissed in circumstances.

1997 PCr.LJ 1626 and 1990 PCr.LJ 1699 ref.

Hamidullali Bangash for Petitioners.

S. Attique Shah for Respondents.

Muhammad Jamil Qamar for the State.

Date of hearing: 19th September, 2001.

2002 P Cr. L J 182

[Peshawar]

Before Tariq Parvez and Muhammad Qaim Jan Khan, JJ

MUSHTAQ KHAN---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous Application No.120/B of 2000, decided on 12th October, 2000.

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

----S. 497(1), third proviso---Bail on ground of statutory delay--­Abscondence, effect of---Third proviso to S.497(1), Cr.P.C. would not be applicable to the case of an absconder with the same force as it would be applicable to an accused who did not abscond---Person who has got no respect for law cannot turn around and seek the protection of law in the same way as any accused can seek who has not absconded.

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

----S. 497(1), third proviso---Bail---Purpose and philosophy of law--­Object of addition of third proviso to S.497, Cr.P.C: is not to allow bail to the accused in routine and it does not confer a right on the accused to go out on bail after the completion of the stipulated period, but the main object is to expedite the conclusion of the trial as the expeditious disposal of the case is the right of an accused person---Such provision if on the one hand gives right to the accused it is a check on the other hand on the Investigating Agency, the prosecution and the Courts to decide the cases without unnecessary delay.

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

----S. 497(1), third -proviso---Penal Code (XLV of 1860), Ss.302/324/ 109/34---Bail on ground of statutory delay---Many adjournments had been sought by the defence after receipt of challan in the Court, but notwithstanding the expiry of statutory period of two years, accused was not entitled to bail in terms of third proviso read with fourth proviso to S.497, Cr.P.C. because of his long abscondence---Bail was declined to accused in circumstances.

1999 PCr. LJ 1704; 1996 PCr. LJ 1309; 1996 PCr: LJ 1305 and 1993 PCr.LJ 733 ref.

Qazi Muhammad Anwar for Petitioner.

Malik Hamesh Gul for the State.

Sultan Sheharyar for the Complainant.

Nemo for Respondent No.2.

Dates of hearing: 4th, 11th and 12th October; 2000.

2002 P Cr. L J 196

[Peshawar]

Before Khalida Rachid, J

MUHAMMAD FAROOQ AFRIDI---Appellant

versus

THE STATE---Respondent

Criminal Appeals Nos.421, 434, 462, 484 and Criminal Revision No. 101 of 2000, decided on 19th September, 2001.

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

----Ss. 156(1), (8), (79), (81), (82), (89), (92), 165, 178 & 2(s)---Criminal Procedure Code (V of 1898), Ss. 103, 161, 162 & 164---Qanun­e-Shahadat (10 of 1984), Art.38---Appreciation of evidence---Delay in recording of F.I.R. had fully been explained---Contention that delay of seventeen hours in recording of F.I.R. had impaired the prosecution case, was repelled in circumstances---Recovery of seized goods/antiques was not defective on account of non-association of any one from public with the recovery proceedings for it was seldom that any public witness would volunteer to be associated with such recovery proceedings ---F.I.R. showed that the Customs Authorities had prior information that goods/antiques would be exported through a particular flight---Such was just an information .which could, or could not be correct---Forged airway bills meant for deceiving the seizing agency en route to the Airport having been prepared, mention of flight number was irrelevant---Minor irregularities in the statements of some prosecution witnesses, could be ignored and same could not be considered to be fatal to the prosecution case---Confessional statements of the accused made before the Customs Authorities could not be hit by Art.38 of Qanun-e-Shahadat, 1984 for same could not be termed as statements under S.161, Cr.P.C. and need not be signed by the maker under S.162, Cr.P.C.---Said statements, in fact, were made under 5.165 of Customs Act, 1969 and recorded by Customs Officials, duly signed in token of its correctness and genuineness---Ample circumstantial, documentary and ocular evidence was available to connect the accused with the offence--­Accused, therefore, were rightly convicted and sentenced---All the accused persons had served out their sentences and were out of jail---Some of the accused persons being heart patients and , some having remained patients of hepatitis and had undergone the protracted litigation, their sentence could not be enhanced.

Vallabhdas v. Assistant Collector of Customs AIR 1965 SC 481; State of Punjab v. Barkat Ram AIR 1962 SC 276 and AIR 1959 Pb. 287 ref.

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

----S. 103---Search and recovery proceedings---Object of---Main aim and object of enactment of S.103, Cr.P.C. was to ensure that the search and recovery was conducted honestly and fairly and to exclude any possibility of coercion and transgression and was not meant to disbelieve the statements of the official witnesses under any circumstances as the official witnesses were as good as private witnesses.

(c) Customs Act (VI of 1969)--­

----S. 165---Criminal Procedure Code (V of 1898), S.161---Statements under S.161, Cr.P.C. and S.165, Customs Act, 1969---Distinction--­Statement under S.161, Cr.P.C. was not to be signed by the accused as same could be the result of aggravated force, provocation, threat or dishonesty while statement recorded under S.165, Customs Act, 1969 was to be signed by the accused, confirming the authenticity of the same.

(d) Civil service---

Disciplinary action---Prerogative of the Department---Department could take disciplinary action against its staff in line with the disciplinary Rules and Regulations thereof.

Khawaja Muhammad Khan and Pir Fida for Appellant.

Salahuddin Khan, Dy. A.-G. and Abdul Latif Yousafzai for the State.

Dates of hearing: 23rd April; 21st, 26th May; 4th and 11th June, 2001.

2002 P Cr. L J 216

[Peshawar]

Before Tariq Parvez and Muhammad Qaim Jan Khan, JJ

MUHAMMAD SALEEM---Appellant

versus

THE STATE and another---Respondents

Criminal Appeals Nos.88, 89 and 90 of 2000, decided on 9th May, 2001.

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

----Ss. 17(3) & 3---Penal Code (XLV of 1860), Ss.120-B/353/412---West Pakistan Arms Ordinance (XX of 1965), S.13--Jurisdiction of Trial Court---Scope and extent ---Challan had directly been filed in Special Court constituted under Suppression of Terrorist Activities (Special Courts) Act, 1975---Charge had been framed by the said Special Court against the accused under S.17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with Ss.120-B/353/412, P.P.C. & 13 of the Arms Ordinance, 1965, although conviction had been recorded under Penal Code in the impugned judgment---Provision of S.3 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 having overriding effect on all other laws on the subject in force for the time being, Sessions Judge was competent to try the case---Conviction and sentence recorded by the Special Court were consequently set aside being coram non judice, without jurisdiction and of no legal effect and the case was remanded to the Sessions Judge for trial.

1992 PCr.LJ 1932 and PLD 1991 SC 641 ref.

(b) Interpretation of statutes---

----Special law shall have precedence over the general law and where there are two special laws and they are inconsistent on any matter or subject then the one which is later in point of time shall prevail over the earlier one.

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

----S. 3---Overriding effect of the Ordinance---Sessions Judge, while conducting trial under the' Offences Against Property (Enforcement of Hudood) Ordinance, 1979, is competent within the meaning of S.3 of the said Ordinance to hold the trial of all other offences committed during the course of such transaction which is the subject-matter of trial before him including the scheduled offence under the Suppression of Terrorist Activities (Special Courts) Act, 1975.

(d) Criminal trial---

----Jurisdiction---Doubt about jurisdiction---When there is any doubt on the assumption of jurisdiction with regard to any offence, Trial Court should first determine the same by hearing the defence and the prosecution and then proceed with the trial.

Dost Muhammad Khan for Appellant.

Shaukat Hayat Khan Khakwani, Dy. A.-G. for the State.

Muhammad Karim Anjum Qasuria for the Complainant.

Date of hearing: 9th May, 2001.

2002 P Cr. L J 238

[Peshawar]

Before Nasirul Mulk and Ijaz-ul-Hassan, JJ

MUHAMMAD, HANIF and another---Appellants

versus

THE STATE and another---Respondents

Criminal Appeal No.56 of 1997, heard on 14th December, 2000.

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

----S. 302(b)---Appreciation of evidence---Evidence furnished by an interested witness related to the victim or the deceased cannot be discarded merely due to his relationship with him---Corroboration of the testimony of such witness has to be sought from other evidence available on record.

Din Muhammad v. The Crown 1969 SCMR 777 ref.

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

----S. 302(b)---Appreciation of evidence---Eye-witnesses had given a straightforward and confidence-inspiring account of the incident and their relationship with the deceased in the absence of any enmity was not enough to discard their testimony ---F.I.R. had been lodged without loss of time and without consultations and deliberations---Medical evidence had fully supported the ocular testimony---" Chhuri" and other incriminating articles recovered from the spot were found by the Serologist to have been stained with human blood---Witness could not be discredited for his cowardice---Additions made in the site plan could not take away the probative force of ocular evidence---Nature of evidence qua the accused was quite different than the nature of evidence against the acquitted co-accused---Eye-witnesses were the natural witnesses of the occurrence whose statements were adequately corroborated by an independent witness---Conviction and sentence of accused were upheld in circumstances.

Din Muhammad v. The Crown 1969 SCMR 777; 'PLD 1976 SC 234; PLD 1992 SC 211; PLD 1985 SC 11; 1993 PCr.LJ 1367 and PCr.LJ 1993 SC 251 ref.

(c) Criminal trial---

---- Interested witness---Evidence of an interested witness in a criminal case is not to be rejected mechanically, but is to be carefully assessed to find out whether it appears to be genuine or probable.

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

----S. 302(b)---Appreciation of evidence---Discrepancies---Minor discrepancies appearing in the evidence of eye-witnesses, per se, are not considered fatal to the prosecution version, specially when their presence at the scene of occurrence is proved beyond any reasonable doubt and they corroborate each other on material particulars.

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

----S. 302(b)---Appreciation of evidence---Site plan---Site plan, by itself, is not a substantive piece of evidence so that it could 'contradict the ocular account in the case---Site plan is prepared only to explain or to appreciate the evidence on record.

PLD 1976 SC 234 ref.

Mufti Muhammad Idris for Appellants.

Muhammad Ayub Khan, Asstt. A.-G. for the State.

Muhammad Akbar Khan for the Complainant.

Date of hearing: 23rd November, 2000.

2002 P Cr. L J 264

[Peshawar]

Before Nasirul Mulk and Ijaz-ul-Hassan, JJ

STATE through Advocate-General N.W.F.P., Peshawar---Appellant

versus

MUMTAZ alias TAJ MUHAMMAD ---Respondent

Criminal Appeal No. 41 of 1994, decided on 19th October, 2000.

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

----Ss. 302/148/149---Criminal Procedure Code (V of 1898), S.417(1)--­Appeal against acquittal- --Statement of the deceased made before his death, eye-witness account of incident, medical evidence, evidence on the point of motive and the evidence regarding recoveries, all were discrepant and replete with serious infirmities and contradictions and were not sufficient to bring home guilt to the accused---Prosecution having not disclosed the factum of cross-case did not appear to have come to the Court with .clean hands---Deceased before his death, in view of medical evidence, did not seem to be in his senses at the crucial time to make a statement---Ocular testimony did not inspire confidence---No independent and impartial witnesses had been examined by the prosecution and the deposition made by the close relatives of the deceased had been rightly ignored by the Trial Court in the absence of independent corroboration---Appeal against acquittal of accused was dismissed in circumstances.

Ashiq Hussain v. The State 1993 SCMR 417 and Hakam Ali and others v. The State 1971 SCMR 432 ref.

(b) Criminal trial---

---- Burden of proof---Burden of proving its case rests entirely on the prosecution---Prosecution is duty-bound to prove its case against the accused beyond reasonable doubt and this duty does not change or vary in the case in which no defence plea is taken by the accused---Defence plea is always to be considered in juxtaposition with prosecution case and in the final analysis if the defence plea is proved or accepted then the prosecution case would stand discredited---If the defence plea is substantiated to the extent of creating doubt in the credibility of the prosecution case, then it would be enough for acquittal---If the defence plea is not established at all, no benefit would accrue to the prosecution on that account and its duty to prove its case beyond reasonable doubt would remain in tact.

Ashiq Hussain v. The State 1993 SCMR 417 and Hakam Ali and others v. The State 1971 SCMR 432 ref.

Muhammad Ayub Khan, A.A.-G. for the State.

M.M. Idris for the Complainant.

Muhammad Ayoob Khan Tanoli for Respondents.

Date of hearing: 19th October, 2000.

2002 P Cr. L J 286

[Peshawar]

Before Ijaz-ul-Hassan, J

RASOOL KHAN and 9 others---Appellants

versus

Haji BANARAS KHAN and 5 others---Respondents

Criminal Appeal No.56 of 2001, decided on 21st September, 2001.

Penal Code (XLV of 1860)---

----Ss. 419/420/468/471/109---Prevention of Corruption Act (II of 1947), S.5(2)---Criminal Procedure Code (V of 1898), Ss.417(2-A) & 249-A--­' Appeal against acquittal---Impugned judgment of acquittal was balanced and well-reasoned---Trial Court after considering the matter from all angles had rightly arrived at the conclusion that no tangible evidence was available to believe that the mutations in question were attested through deceitful and fraudulent means---Mere allegation that wrong mutations were attested by the Revenue Officer did not attract the penalty of Ss.161/419/420/468, P.P.C. read with S.5(2) of the Prevention of Corruption Act, 1947 and such official could not be considered to be guilty of misdemeanour as public servant---Formalities of S.249-A, Cr.P.C. had been complied with and no prejudice had been caused to the complainant---Application under S.249-A, Cr.P.C. could be filed at any stage of the proceedings---Mere fact that Trial Court had acquitted the accused after framing the charge and examining one witness, by itself, did not constitute a valid ground to render the impugned judgment invalid--Appeal against acquittal of accused was dismissed in limine in circumstances.

Sardar Nasir Aslam Khan for Appellants.

Nemo for Respondents.

Date of hearing: 21st September, 2001.

2002 P Cr. L J 293

[Peshawar]

Before Shah Jehan Khan and Ijaz-ul-Hassan, JJ

MUHAMMAD YOUSAF and 5 others---Petitioners

versus

THE STATE and another---Respondents

Criminal Miscellaneous Nos.885 and 241 of 2001, decided on 2nd October, 2001.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149/109---Bail, grant or refusal of---Principle---Every case of criminal nature proceeds on its own facts and circumstances and a rule of universal application cannot be deduced from the decision of any particular case---Bail under S.497, Cr.P.C. is refused if reasonable grounds appear for believing the accused being guilty of an offence punishable with death or imprisonment for life, but if at any stage of investigation, inquiry or trial no reasonable grounds appear for believing that the accused has committed a non-bailable offence and sufficient grounds for further inquiry into his guilt are available, he shall be released on bail.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149/109---Bail, grant of---Accused were not nominated in the F.I.R. and had been subsequently associated with the guilt by the complainant and another prosecution witness in their supplementary statements---Accused were empty-handed at the relevant time and had been charged for hatching a conspiracy against the complainant party which was to be determined at the trial after recording evidence---Accused were admitted to bail in circumstances.

Muhammad Ramzan v. The State 1999 PCr.LJ 1333 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss.302/324/148/149/109---Bail, grant of---Accused were shown to be minors at the time of commission of offence by the photocopies of their school leaving certificates placed on the file and they were entitled to bail on the ground of minority---Bail was allowed to accused accordingly.

Shah Zarin v. The State and another 1999 PCr.LJ 256 ref.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302/324/148/149/109--­Bail---Accused had been directly charged and specific role had been attributed to them---Prima facie., accused were connected with the commission of offence---Kidney trouble with which the accused was suffering, by itself, did not constitute a good ground for release on bail--­Matters like delay in lodging the F.I.R., question of identification and conflict between ocular testimony and medical evidence required deeper appreciation of evidence which was neither permissible nor admissible at bail stage because at such stage only a bird's eye view of the material collected by the prosecution had to be taken into consideration---Bail was declined to accused in circumstances.

Muhammad Ayub and others v. The State 1987 SCMR 1906; Abdul Waheed v. The State 1994 PCr.LJ 2345; Muhammad Ramzan v. The State 1999 PCr.LJ 1333; Mazhar v. The State 1997 MLD 1553; Muhammad Mansha and others v. The State 1996 PCr.LJ 1981; Ibrar Hussain and others v. The State 1996 PCr.LJ 1679; Muhammad Sudheir v. The State 1998 MLD 1994 and Shah Zarin v. The State and another 1999 PCr.LJ 256 ref.

Khan Afsar Khan for Petitioners.

Ghulam Mujtaba Khan Jadoon and Syed Shabbir Hussain Shah for the Complainant.

Muhammad Ayub, Dy.A.-G. for the State.

Date of hearing: 2nd October; 2001.

2002 P Cr. L J 344

[Peshawar]

Before Nasirul Mulk and Ijaz-ul-Hassan, JJ

SOHRAB---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.75 of 1999, decided on 15th May, 2001.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S.103--­Appreciation of evidence---Sentence---Provisions of S.103, Cr.P.C. were not applicable to the case---Police officials deposing as prosecution witnesses had no ill-will or malice against the accused and their evidence could not be discarded merely on the basis of their being police employees---Narcotics could not be believed to have been planted on the accused by the police from their own source---"Charas" and heroin had been recovered from the accused immediately after his apprehension--­Report of the Chemical Analyst about the said narcotics was positive--­police Officer was not prohibited under the law to be a complainant if he was a witness to the commission of the offence and also to be an Investigating Officer if the accused thereby was not prejudiced in any way---Impugned judgment did not suffer from any illegality or material irregularity---Conviction of accused was upheld accordingly, but in view of the quantum of narcotics recovered from him his sentence of ten years' R.I. was reduced to six years' R.I.

Malik Muhammad Asif for Appellant.

Muhammad Ayub Khan, Dy.A.-G. for the State.

Date of hearing: 15th May, 2001.

2002 P Cr. L J 359

[Peshawar]

Before Nasirul Mulk and Ijaz-ul-Hassan, JJ

ABDUR REHMAN---Appellant

versus

THE STATE and another---Respondents

Criminal Appeal No.5 of 1997, decided on 2nd May, 2001.

(a) Criminal trial---

----Hostile witness---Appreciation of evidence--- Since the hostile witness speaks in different voices his testimony has to be considered with care and caution and its corroboration is sought from independent source and conformity with the remaining evidence.

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

----S. 316---Criminal Procedure Code (V of 1898), S.417---Appeal against acquittal---Appreciation of evidence---Solitary statement of the hostile witness in the absence of independent corroboration could not be made basis of conviction of accused---Recovery of incriminating articles was doubtful and it did not support the prosecution story---Medical evidence ran counter to prosecution version---Prosecution had, thus, failed to prove the case against accused beyond any reasonable doubt--­Accused was acquitted accordingly.

The State v. Abdul Ghaffar 1996 SCMR 678; Muhammad Sadiq v. The State 1997 SCMR 611; Khawand Bux and 3 others v. The State 1997 PCr.LJ 280; Muhammad Riaz and 3 others v. The State PLD 1994 Pesh. 102; Sharafat Ali v. The State 1999 SCMR 329; Muhammad Mehdi v. The State 2000 SCMR 222; Qaid-e-Azam v. The State 2000 PCr.LJ 216 and 1995 SCMR 1345 ref.

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

----S. 316---Criminal Procedure Code (V of 1898), S.417(2-A)---Appeal against acquittal---Prosecution had failed to connect the accused with the murder of the deceased---Record did not indicate that the accused had removed the dead body of the deceased from the site of occurrence and thrown the same at a deserted place---Trial Court had extended benefit of doubt to the accused on valid and cogent grounds---Finding of acquittal being unexceptional hardly called for any interference---Appeal against acquittal of accused was consequently dismissed.

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

----S. 417---Appeal against acquittal---Principle---Superior Courts in acquittal appeal generally do not, interfere in the absence of any miscarriage of justice having taken place ---Factum that a contrary view can be obtained on reappraisal of evidence is not sufficient for interference.

Haji Muhammad Iqbal for Appellant.

Muhammad Ayub Khan, Asstt. A.-G. for the State.

Miss Raheela Moghal and Samiullah Khan for the Complainant.

Date of hearing: 3rd April, 2001.

2002 P Cr. L J 377

[Peshawar]

Before Nasirul Mulk and Ijaz-ul-Hassan, JJ

THE STATE through Advocate-General, N.W.F.P., Peshawar--Appellant

versus

TAWAB and another---Respondents

Criminal Appeal No.23 of 1995, decided on 2nd May, 2001.

(a) Criminal trial---

----Burden of proof---Prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, its benefit must go to the accused and that would be sufficient to discredit the prosecution story and to entitle the accused to acquittal.

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

---S. 302/34---Criminal Procedure Code (V of 1898), S.417(1) --- Appeal against acquittal---Ocular evidence did not inspire confidence and it was doubtful whether the eye-witnesses 'had seen the incident---Occurrence did not appear to have taken place in the manner asserted by the prosecution---Ocular testimony was not supplemented by any corroborative evidence---One piece of tainted evidence could not corroborate another piece of tainted evidence---Trial Court had extended benefit of doubt to the accused on valid and cogent reasons and their acquittal did not call for any interference by High Court---Appeal against acquittal of accused was dismissed accordingly.

Muhammad Ahmad and another v. The State and others 1997 SCMR 89; Qabool and another v. The State PLD 1982 SC 224; State through Advocate-General, N.-W.F.P., Peshawar v. Ali Rehman 1191 SCMR 1685 and Ameer v. Rab Nawaz and others 1990 SCMR 218 ref.

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

----S. 302/34---Appreciation of evidence---Principle---One tainted piece of evidence cannot corroborate another piece of tainted evidence.

Muhammad Ayub Khan, Dy. A.-G. for the State.

Abdullah Jan Mirza for the Complainant.

Ghulam Mustafa Swati for Respondents.

Date of hearing: 2nd May, 2001.

2002 P Cr. L J 388

[Peshawar]

Before Nasirul Mulk and Ijaz‑u1‑Hassan, JJ

SHAH NAWAZ‑‑‑Appellant

versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No.77 of 1999, decided on 9th May, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 316‑‑‑Interested witness‑‑‑Corroboration‑‑‑Evidence furnished by interested witness related to the victim or deceased cannot be discarded merely for the reason of relationship, but its corroboration has to be sought from other evidence available on record‑‑‑Such corroboration need not come from an independent witness but from anything circumstances which tends to satisfy the Court about the truthfulness of the said witness.

Din Muhammad v. The Crown 1969 SCMR 777 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 316‑‑‑Appreciation of evidence‑‑‑Eye‑witnesses, no doubt, were the daughters of the deceased, but they being the inhabitants of the house of occurrence their presence at the relevant time was natural and they had given a straightforward and confidence‑inspiring account of the occurrence‑‑‑Inconsistencies referred to in the ocular testimony were insignificant‑‑‑Fact that nobody from the locality had come forward to depose against the accused was immaterial keeping in view the social conditions prevalent in the society where strangers avoided to poke their nose in the bloody affairs of other people‑‑‑Matter had been reported to the police promptly without any loss of time‑‑‑Medical evidence had supported the accusation‑‑‑Fatal role had been assigned to the accused whereas the acquitted co‑accused was charged only for instigation‑‑‑Omission on the part of prosecution to prove motive could not damage the prosecution case which otherwise stood proved by independent and reliable evidence‑‑‑Conviction of accused under S.316, P.P.C. and the sentence of Diyat were maintained in circumstances, but keeping in view the attending circumstances his sentence of five years' R.I. was reduced to the imprisonment already undergone by him.

1991 SCMR 2270; 1984 PCr.LJ 1237; 2001 SCMR 199; 1994 SCMR 1928; 1997 PCr.LJ 432; Din Muhammad v. The Crown 1969 SCMR 777; Yaqoob Shah v. The State PLD 1976 SC 53 and Muhammad lqbal v. The State PLD 1976 SC 291 ref.

Saeed Akhtar Khan for Appellant.

Muhammad Ayub Khan, Asstt. A.‑G. for the State.

Abdullah Khan Tanoli for the Complainant.

Dates of hearing: 8th and 9th May, 2001.

2002 P Cr. L J 457

[Peshawar]

Before Mian Shakirullah Jan and Muhammad Qaim Jan Khan, JJ

ABDUL MANAN KHAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.7 of 2001 decided on 31st October, 2001.

Explosive Substances Act (XI of 1908)---

‑‑‑‑S. 5‑‑‑Appreciation of evidence‑‑‑Sanction for prosecution of accused having been granted by the District Magistrate as a delegatee of the Provincial Government, was sufficient and proper‑‑‑Case property including arms, ammunition and explosives had been duly produced and exhibited in the Court during examination of the concerned prosecution witness‑‑‑Report of the Armourer having been admitted by the defence counsel as correct, examination of the Armourer in the Court‑was not necessary‑‑‑In view of the categorical statement of the recovery witness in the Court regarding the recoveries having been effete in his presence, non‑signing the recovery memo, by him was of no significance‑‑‑Inability of the Investigating Officer to point out the place where the vehicle was stopped and the recovery was effected was due to the lapse of a period of five years after the occurrence, which he had explained in his statement‑‑‑Prosecution having proved the recovery of various arms, ammunition and explosives from the possession of accused, burden had shifted to the accused to show that he was not having the same for unlawful purpose, which he had failed to discharge‑‑‑Conviction and sentence of accused were upheld in circumstances.

Nazim Hussain v. The State and oand 1999 PCr.LJ 42; Sohail Ahmad v. The State 1995 PCr.LJ 177: Syed Mukhtar Hussain v. The State 1984 PCr.LJ, 2181; Rashid Ahmad v. The'State PLD 1972 SC 271; Abdul Karim v,' The State and others PLD 1963 (W.P.) Kar. 669; Muhammad Sultan v. The State 1984 PCr.LJ 45 and Prosecutor, Karachi v: Maior Malik Muhammad Hanif and 4 others 1975 PCr.LJ 834 ref.

Dost Muhammad Khan and Saleemullah Ranazai for Appellant.

Shaukat Hayat Khakwani, Dy. A.‑G. for the State.

Date of hearing: 31st October, 2001.

2002 P Cr. L J 528

[Peshawar]

Before Muhammad Qaim Jan Khan and Ejaz Afzal Khan, JJ

REHMATULLAH alias BABU‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.49 of 2001, decided on 24th October, 2001.

Explosive Substances Act (VI of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑‑­Criminal Procedure Code (V of 1898), S.103‑‑‑Appreciation of evidence‑‑‑House wherefrom the incriminatory material was recovered, was in possession of more than one persons at the time of search‑and the alleged recoveries‑‑‑Investigating Officer at the close of his cross‑examination had admitted that he could not say as to who took into possession the Kalashnikov etc, from the possession of the accused whereas another Police Officer as prosecution witness in his cross‑examination had stated that the said incriminatory articles were recovered from the possession of the accused by the Investigating Officer‑‑‑Record had revealed that at the relevant time, besides the accused, the acquitted co‑accused was also present‑‑‑Whether the incriminating material belonged to the accused or to the acquitted co­-accused, was a question which could not be answered with certainty‑‑­Both the prosecution witnesses had given contradictory statements as to the factum of recovery‑‑‑Mandatory requirement of S.103, Cr.P.C. had been violated as the police despite having information in advance did not take alongwith it two respectable inhabitants of the locality for witnessing the search and no plausible explanation for such omission had been given‑‑‑No reliance could be placed on evidence of the prosecution witnesses when it suffered from irreconcilable contradictions.

Dost Muhammad Khan for Appellant.

Shaukat Hayat Khakwani, Dy.A.‑G. for the State.

Date of hearing: 24th October, 2001.

2002 P Cr. L J 535

[Peshawar]

Before Qazi Ehsanullah Qureshi and Ejaz Afzal Khan, JJ

Syed SAADAT HUSSAIN SHAH---Petitioner

versus

THE STATE and another---Respondents

Criminal Miscellaneous Nos.184 and 167 of 2001, decided on 14th November, 2001.

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

----S. 497---Penal Code (XLV of 1860), S.302/34---Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), Ss.4 & 5-A(8)---Qanun-e-Shahadat (10 of 1984), Art.38---Bail, grant of--­Prosecution witness who made charge against the accused after lapse of one month and eight days, subsequently had resiled therefrom by swearing on an affidavit---Such statement of said witness, thus had no value---Whether discovery of the jeep, motorcycle and cycle at the instance of the accused, could reasonably lead to hypothesis of their alleged guilt and whether the statements of accused made in the presence of the police could change their character and would take them outside the scope of Art.38 of Qanun-e-Shahadat, 1984 simply because the making thereof was snapped through movie camera, were the questions which necessitated further enquiry which had made out a case for grant of bail to the accused.

Amjad Zia and Sanaullah Khan Gandapur for Petitioner (in Criminal Miscellaneous No. 167 of 2001).

Shaukat Hayat Khan Khakwani, Dy. A.-G. for the State.

Saleemullah Ramazai for the Complainant (Respondent No.2).

Dost Muhammad Khan for Petitioner (in Criminal Miscellaneous No.184 of 2001).

Date of hearing: 14th November, 2001

2002 P Cr. L J 549

[Peshawar]

Before Malik Hamid Saeed. J

Sheikh ZAHOOR‑UD‑DIN and another‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.213 of 2001, decided on 12th December, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.409/420/468/471‑‑­-Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Bail, grant of‑‑­-Prosecution was twice directed for submission of challan against the accused, once by the Supreme Court and then by the High Court, but the prosecution did not comply with the said directions‑‑‑Even at time of hearing of bail application the prosecution could not submit the challan against the accused‑‑‑Failure of the prosecution to comply with the directions of the Supreme Court and the High Court, was a good ground for the release of the accused on bail‑‑‑Accused way admitted to bail in circumstances 1999 SCMR 2147 ref.

Dost Muhammad Khan for Petitioners.

Shaukat Hayat Khan, Dy. A.‑G. for the State.

2002 P Cr. L J 562

[Peshawar]

Before Qazi Ehsanullah Qureshi, J

JUMMA KHAN and 2 others‑‑‑Petitioners

versus

THE STATE‑‑‑Respondent

Criminal Bail Application No.110 of 2001, decided on 12th November, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9(b) & (e)‑‑‑Bail, grant of‑‑-Case of the accused fell between the line under cls.(b) & (c) of S.9, Control of Narcotic Substances Act, 1997, but while disposing of the bail application, lesser punishment prescribed for the offence had to be taken into consideration‑‑‑No likelihood of abscondence of the accused existed nor there was any apprehension of tampering with the record by the accused‑‑‑Accused were granted bail in circumstances.

Dost Muhammad Khan for Petitioners.

Khuda Bakhsh Khan for the State.

Date of hearing: 12th November, 2001.

2002 P Cr. L J 666

[Peshawar]

Before Ejaz Afzal Khan, J

ABDUL HAMID‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Application No.213 of 2001, decided on 30th August, 2001.

Criminal Procedure Code (V of 1898)‑‑­‑

‑‑‑S. 516‑A‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 8, 9, 74 & 32‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4‑‑‑Custody of the vehicle‑‑‑Record did not show that the vehicle in question was used in the commission of the crime with the knowledge of the petitioner who claimed to be its owner‑‑‑Section 74 of the Control of Narcotic Substances Act, 1997, no doubt prohibited the grant of custody of a vehicle used in the import, export or transportation of narcotic substance to the accused or any of his associates or relatives or any private individual till the conclusion of the case, but this provision by no canons of interpretation could be extended to cover an owner who had no hand or involvement in the crime, as it could not be construed independently of the provisions of S.32 of the said Act which had protected the right of the owner who had no conscious hand in the commission of the offence‑‑‑Retention of the vehicle in police custody for an indefinite period could also serve no useful purpose‑‑‑Documents placed on the file, prima facie, indicated the petitioner to be the owner of the vehicle in question at least in the absence of any rival claimant‑‑­Police was directed to hand over the custody of the vehicle to the petitioner in circumstances.

Nek Nawaz Khan for Petitioner.

Abdul Karim Khan for the State.

Date of hearing: 30th August, 2001.

2002 P Cr.L J 677

[Peshawar]

Before Nasirul Mulk, J

GHARIB ULLAH‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Bail Application No.29 of 2002, decided on 24th January, 2002.

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

‑‑‑‑S. 497‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9(3)‑‑­Bail ‑‑‑Search and arrest of the accused by a Police Officer below the rank of Sub‑Inspector under the Control of Narcotic Substances Act, 1997 was illegal and would entitle him to bail‑‑‑Even. if the accused was charged under the Prohibition (Enforcement of Hadd) Order, 1979, the maximum punishment for trafficking "Charas" regardless of its quantity was five years' R.I. which would take his case out of the ambit of the prohibitory clause of S.497(1), Cr.P.C.‑‑‑Accused was admitted to bail in circumstances.

Nek Nawaz Khan for Petitioner.

Malik Imran Khan for the State.

Date of hearing: 24th January, 2002

2002 P Cr. L J 683

[Peshawar]

Before Shah Jehan Khan, J

MUHAMMAD ZAHIR SHAH‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Petitions Nos.791 and 845‑A of 2001, decided on 1st August, 2001.

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

‑‑‑‑S. 497(1)‑‑‑Bail‑‑‑Case falling within the prohibitory clause of S.497(1), Cr.P.C.‑‑‑Where an accused is, prima facie, found reasonably connected with the commission of the offence punishable for 10 years' R.I. or more, the Courts will have no jurisdiction to enlarge him on bail in view of the restriction contained in S.497(1), Cr.P.C.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss. 409/420/468/471‑‑‑Prevention of Corruption Act (II of 1947), S.5(2)‑‑‑Bail‑‑‑Section 409, P.P.C. for which the accused were charged fell within the prohibition contained in S.497(l), Cr.P.C.‑‑‑Losses to the Government Exchequer had occurred during the posting of one accused as S.D.O. of the concerned Department who was to examine the construction work‑and verify the vouchers for payment of bills to .the contractors‑‑‑Last vouchers making last payments to the contractors were duly signed by the said accused who might not be exclusively liable for the entire losses caused to the Government Exchequer, but each and every official involved in the connivance of causing such loss would individually and collectively be liable for misappropriation‑‑‑Accused were, prima facie, connected with the commission of the offence in the light of the evidence so far collected particularly the reports of the Senior Auditor and Assistant Technical Officer and the matter was still under investigation‑‑‑Bail was declined to accused in circumstances.

Raza Muhammad Sial v. State 1988 SCMR 1223 and Shamraiz Khan v. State 2000 SCMR 157 distinguished.

Mir Akhtar Khan Khattak v. State PLD 1982 Pesh. 128; Tabbasam Ahmed Qureshi v. State 2000 P Cr. L J 105 and Assistant Advocate‑General Imtiaz Ahmed and another v. State PLD 1997 SC 545 ref.

Abdul Latif Afridi for Petitioner.

Tariq Javed, A.A. ‑G. for the State.

Date of hearing: 1st August, 2001.

2002 P Cr. L J 941

[Peshawar]

Before Ijaz‑ul‑Hassan, J

THE STATE through Advocate­ General, Peshawar‑‑‑Petitioner

versus

LAIQ KHAN‑ ‑‑Respondent

Criminal Miscellaneous No. 1477 of 2001, decided on 30th November, 2001.

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

‑‑‑‑S. 497(5)‑‑‑Cancellation of bail‑‑‑Principles‑‑‑Once a Court of competent jurisdiction passes a bail order, very strong and exceptional grounds‑are required to cancel the same‑‑‑Bail can be cancelled where the person on bail repeats the offence, hampers the investigation, makes some efforts to tamper with the evidence, commits some acts of violence against the police and prosecution witnesses or manages to flee away from the country or beyond the control of sureties.

The State v. Ali Muhammad 1993 PCr.LJ 519; S. Amanullah Shah v. The State 1996 SCMR 241; Gulzar Ahmad v. State 1997 MLD 1606; Tariq Bashir v. State PLD 1995 SC 34 and Usman v. Muhammad ­Azam and another 2001 PCr. LJ 1461 ref.

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

‑‑‑‑S. 497(5)‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑‑­Surrender of Illicit Arms Act (XXI of 1991), S.7‑‑‑Cancellation of bail‑‑­Competent Court had granted bail to the accused at its discretion which did not appear to be fanciful, perverse or arbitrary‑‑‑Trial Court had exercised its discretion properly which did not warrant any interference by High Court‑‑‑Application for cancellation of bail was dismissed in limine in circumstances.

The State v. Ali Muhammad 1993 PCr.LJ 519; S. Amanullah Shah v. The State 1996 SCMR 241; Gulzar Ahmad v. State 1997 MLD 1606; Tariq Bashir v. State PLD 1995 SC 34 and Usman v. Muhammad Azam and another 2001 PCr.LJ 1461 ref.

Ahmad Jan, Dy. A.‑G: for the State.

2002 P Cr. L J 947

[Peshawar]

Before Malik Hamid Saeed, J

AURANGZEB‑‑‑Petitioner

versus

BILAL and 5 others‑‑‑Respondents

Criminal Revision Petition No. 10 of 2001, decided on 14th September, 2001.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 436/34‑‑‑Criminal Procedure Code (V of 1898), Ss.439 & 540‑A‑‑‑Exemption from personal appearance granted to accused‑‑­Validity‑‑‑Words "before the Court" as used in S.540‑A, Cr.P.C., could not be given strict meaning of personal attendance of an accused before the Court‑‑‑Only restriction upon the Court towards grant of exemption to accused from personal appearance under 5.540‑A, Cr.P.C. was that either he himself should be before the Court at the time of seeking such exemption or he should be represented by a Pleader‑‑‑Perusal of the Vakalatnama sent by the accused from abroad showed that he had duly nominated and engaged an Advocate as his Pleader in the case who was duly representing the accused in the proceedings before the Court‑‑­Personal appearance of the accused had been dispensed with by the Trial Court also for the benefit of the other accused whose trial was likely to be delayed unnecessarily for no fault on their part‑‑‑Exercise of the discretion by the Trial Court did not suffer from any patent illegality which on one hand was quite proper occasioning no failure of justice and on the other hand also did not harm the complainant‑‑‑Revision petition was dismissed accordingly.

Nek Nawaz Khan for Petitioner.

Muhammad Hasib Qureshi for the State.

Abdullah Sani for Respondents.

Date of hearing: 14th September, 2001.

2002 P Cr. L J 955

[Peshawar]

Before Talaat Qayum Qureshi, J

GHANI‑UR‑REHMAN‑‑‑Petitioner

versus

JAMROZ KHAN and another‑‑‑Respondents

Criminal Miscellaneous No.1330 of 2001, decided on 4th December, 2001.

Criminal Procedure Code (V of 1898)‑

‑‑‑‑S. 49nal Code (XLV of 1860), Ss.302/324/34‑‑‑Bail‑‑‑Accused was directly charged in the promptly lodged F.I.R. for mounting attack with three other co‑accused duly armed with deadly weapons as a result of which the deceased was killed‑‑‑Parties belonged to same village and the occurrence having taken place in broad daylight, question of mistaken identity did not arise‑‑‑Ocular version was supported by incriminating recoveries and medical evidence‑‑‑Unexplained long abscondence of accused for four years and five months had also disentitled him to the concession of bail‑‑‑Bail was declined to accused in circumstances.

Sher Ali v. The State 1998 SCMR 190 and Suhrab and others v. The State 2001 PCr.LJ 366 ref.

Syed Mir Muhammad for Petitioner.

Muhammad Safdar Khan for Respondent.

Akhtar Naveed, Dy. A.‑G. for the State.

2002 P Cr. L J 963

[Peshawar]

Before Talaat Qayum Qureshi, J

ALAM ZEB and 2 others‑‑‑Petitioners

Versus

MUHAMMAD ISHAQ and another‑‑‑Respondents

Criminal Miscellaneous No.1609 of 2001, decided on 28th January, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/148/149‑‑‑Bail‑‑­During pendency of the trial of accused two other accused in the case had been arrested against whom charges were also framed and they had been tagged with the same trial‑‑‑Accused, no doubt, were not responsible for delay in the trial, but they had been charged for having murdered three persons and injuring another person‑‑‑Brutal act of the accused could not be lost sight of by the Court at bail stage‑‑‑Bail was refused to accused in circumstances.

Asif Ali Zardari v. The State 1993 PCr.LJ 781 and Iqbal Bruhi v.. The State 1998 PCr.LJ 2066 ref.

Khawaja Muhammad Khan for Petitioners.

Tariq Javed, Dy. A.‑G. for the State.

Muhammad Salim Khan for the Complainant

Date of hearing: 28th January, 2002.

2002 P Cr. L J 971

[Peshawar]

Before Talaat Qayum Qureshi, J

BARAT---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous Application No. 1387 of 2001, decided on 10th December, 2001.

Criminal Procedure Code (V of 1898)---

‑‑‑‑Ss. 497 & 103---Control of Narcotic Substances Act (XXV of 1997), Ss.6, 7, 9 25 & 51(1)‑‑‑Bail‑‑‑Huge quantity of "Charas" was recovered from the possession of accused‑‑‑Report of the Chemical Examiner was in positive‑‑‑Recovery witnesses had no ill‑will against the accused‑‑­Recovery having been effected at road side, the provisions of S.103, Cr.P.C. were not attracted‑‑‑Even otherwise, S.103, Cr.P.C. was not applicable to the recovery under the Control of Narcotic Substances Act, 1997, by virtue of its S.25‑‑‑Case against the accused was hit by the prohibition contained in S.497(1), Cr.P.C. and also by the embargo imposed by S.51(1) of the Control of Narcotic Substances Act, 1997‑‑­Accused was refused bail in circumstances.

Akhtar Zaman Khan for Petitioner.

Sardar Shaukat Hayat, A.A.‑G. for the State.

Date of hearing: 10th December, 2001.

2002 P Cr. L J 976

[Peshawar]

Before Mian Shakirullah Jan and Salim Dil Khan, JJ

MUHAMMAD ALI ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.353 of 1998, decided on 20th July, 2001.

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

‑‑‑‑S. 9‑‑‑Appreciation of evidence‑‑‑Events had taken the normal course as on suspicion the bag of the accused was searched and after recovery of heroin from the bag the necessary steps were taken by arresting the accused, taking articles into possession and writing down a report to be incorporated in the F.I.R.‑‑‑Such fact by itself did not amount to investigation of the case, rather the case was investigated by the Sub-­Inspector duly authorized in this respect‑‑‑Person taking the articles to the Laboratory was not to be necessarily produced in the Court as a witness unless it was shown that either the seal or the parcel had been tampered with or had been substituted and mere delay in sending the matter to the Laboratory did not make the prosecution case doubtful with regard to the authenticity of the report‑‑‑Question about territorial jurisdiction or limits of the Laboratory was immaterial as to which Laboratory either in Punjab or in N.W.F.P. or any other Province had carried out the test, if otherwise it was competent to do so‑‑‑Magistrate had categorically deposed in Court that he had destroyed the contraband articles in pursuance of Court's order and his report in this behalf was not open to any objection‑‑‑Contradictions in the prosecution evidence which might be termed as negligible inconsistencies by themselves were not sufficient to dislodge 'the prosecution case‑‑‑Two material witnesses were neither interested in the success of the case of prosecution, nor they had any enmity with the accused and their testimony could not be doubted‑‑‑Non‑production of the bag in the Court from which heroin was recovered although was a lacuna in the prosecution case, but it did not affect the case‑‑‑Technicalities, procedural or otherwise, if any, could not be given serious thought if the case stood otherwise proved‑‑‑Conviction and sentence of accused were upheld in circumstances.

Khalid Mehmood v. The State 2000 PCr.LJ 1036; Mst. Iqbal Bibi v. The State 2000 PCr.LJ 1812; Javed Akhtar v. The State PLJ 1997 Cr.C. Lahore 1310; Feroz Khan v. The State PLJ 1997 FSC 166; Malik Talib Hussain v: The State 1998 MLD 506; Sajjid v. The State 1998 PCr.LJ 114; Sarwar Khan and others v: The State 1987 SCMR 960; Sultan and another v. The State 2000 SCMR 1818; Nawab Ali v. The State NLR 1995 FSC 374 and Munawar Hussain alias Bobi and 2 others v. The State 1993 SCMR 785 ref.

(b) Criminal trial‑‑‑

‑‑‑‑ Appreciation of evidence‑‑‑‑Technicalities‑‑‑Technicalities, procedural or otherwise, if any, should not be given serious thought if the case stood otherwise proved.

Malik Talib Hussain v. The State 1998 MLD 506; Sajjid v. The State 1998 PCr.LJ 114, Sarwar Khan and others v. The State 1987 SCMR 960; Sultan and another v. The State 2000 SCMR 1818; Nawab Ali v. The State NLR 1995 FSC 374 and Munawar Hussain alias Bobi and 2 others v. The State 1993 SCMR 785 ref.

Safirullah Khan for Appellant.

Tariq Khan Kakar for the State.

Date of hearing: 19th June, 2001.

2002 P Cr. L J 1044

[Peshawar]

Before Sardar Muhammad Raza, CJ

SHER MUHAMMAD ‑‑‑Petitioner

Versus

SARDAR ALI and another‑‑‑Respondents

Criminal Bail Application No.336 of 2001, heard on 25th May, 2001.

Criminal Procedure Code (V of 1898)‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.457/380/411‑‑‑Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14‑‑‑Bail‑‑‑Delay of 35 days in lodging the F.I.R. was not explained‑‑­If the accused were known to the complainant he would have reported the matter at his earliest‑‑‑No recover was effected from the accused‑‑­Accused had not made any confession and he had not been identified in any identification parade‑‑‑Co‑accused in his confession had not mentioned the accused‑‑‑Name of accused was not given even in the site plan‑‑‑No evidence was available against the accused‑‑­Involvement of accused in the crime was yet to be determined through the evidence at the trial and till then he was entitled to bail‑‑‑Bail was allowed to accused accordingly.

Nek Nawaz Khan for Petitioner.

Muhammad Jamil for the Complainant.

Raza Khan Mohmand for the State.

Date of hearing: 25th May, 2001.

2002 P Cr. L J 1048

[Peshawar]

Before Ijaz‑ul‑Hassan, J

SAJJAD KHAN‑‑‑Petitioner

Versus

FAROOQ AHMAD and another‑‑‑Respondents

Bail Application No. 1489 of 2001, decided on 3rd January, 2002.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, refusal of‑‑­Principle‑‑‑Bail is not to be refused as punishment merely on the allegation that the accused has committed an offence punishable with death or imprisonment for life unless reasonable grounds appear to exist to disclose his complicity in the crime.

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

‑‑‑‑S. 497(1)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, refusal of‑‑­Nobody was nominated in the F.I.R. for the murder of the deceased, but complainant in his supplementary statement had implicated the accused for commission of the offence which was corroborated by the prosecution witnesses‑‑‑Affidavits of the prosecution witnesses creating doubt in the prosecution case could not be considered at bail stage‑‑‑Accused had been charged for an offence falling in the prohibitory clause of S.497(1), Cr.P.C.‑‑‑Sufficient evidence was available with the prosecution to prima facie connect the accused with the offence of murder and disentitle him to the concession of bail ‑‑‑Challan had already been submitted in the Court and the trial was likely to commence soon‑‑‑Bail was disallowed to accused in circumstances.

Ghulam Murtaza v. The State 2000 YLR 2020; Allah Ditta v. The State 2000 YLR 763; Muhammad Aslam v. The State 2000 MLD 911; Muhammad Tariq v. The State 2000 PCr.LJ 1840; Muhammad Hanif v. The State 1997 PCr.LJ 70; Muhammad Shah and another v. The State 1993 SCMR 550; Falak Sher v. The State 1995 SCM.R 1350; Muhammad Rafique v. The State 1997 SCMR 412; Ghulam Hussain v. The State 1998 PCr.LJ 40; Azeem and others v. The State 1997 PCr.LJ 688; Jalal v. The State 1999 YLR 1493; Aslam Khan v. Qaisar Khan and 2 others 1999 PCr.LJ 582; Muhammad Akrarh v. The State 1989 PCr.LJ 1059; Babar Hussain v. Muhammad Rashid khan and another 2000 PCr.LJ 980 and Naseer Ahmad v. The State PLD 1997 SC 347 ref.

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

‑‑‑S.497/498‑‑‑Bail‑‑‑Affidavit‑‑‑Filing of affidavits at the time of hearing bail application with the object of creating doubt in the prosecution case was deprecated‑‑‑Affidavits of prosecution witnesses at such a stage, could not be considered.

Naseer Ahmad v. The State PLD 1997 SC 347 rel.

Nek Nawaz Khan for Petitioner.

Muzzamil Khan for the Complainant.

Muhammad Waris Khan, A.A.‑G. for the State.

Date of hearing: 3rd January, 2002.

2002 P Cr. L J 1054

[Peshawar]

Before Ijaz‑ul‑Hassan, J

KHIAL GUL and another‑‑‑Applicants

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No. 1255 of 2001, decided on 30th November, 2001.

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

‑‑‑‑S. 497‑‑‑Refusal of bail as punishment‑‑‑Principle‑‑‑Accused charged with the offence punishable with death or imprisonment for life is not to be declined bail as a punishment unless his involvement therein is prima facie disclosed by the record.

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

‑‑‑‑S.497(1)‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Bail, refusal of‑‑‑Two eye‑witnesses in their statements recorded under .S.161, Cr.P.C immediately after the occurrence had fully charged the accused for the murder of the deceased persons‑‑‑Noticeable abscondence of the accused after the occurrence had disentitled them to the concession of bail‑‑­Submissions made on behalf of the accused touching the merits of the .case could not attend‑ to at bail stage‑‑‑Advanced age or physical infirmity and incapability of accused did not constitute any valid ground for grant of bail‑‑‑Reasonable grounds existed to believe the accused being guilty of the charge which fell within the prohibitory clause of S.497, Cr.P.C.‑‑‑Bail was refused to accused in circumstances.

Gul Hassan alias Hassan and another v. The State 2001 PCr.LJ 1491 ref.

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

‑‑‑‑S. 497‑‑‑Bail, refusal of ‑‑‑Principle‑‑‑Abscondence of accused‑‑­Fugitive from law loses some of the normal rights granted by the procedural and substantive law‑‑‑Noticeable abscondence of accused disentitles him to the concession of bail notwithstanding the merits of the case.

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

‑‑‑‑Ss. 497/498‑‑‑Bail‑‑‑Merits of the case, consideration of‑‑‑Submissions essentially touching the merits of the case cannot be considered at bail stage.

Gul Hassan alias Hassan and another v. The State 2001 PCr.LJ 1491 ref.

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

‑‑‑‑S.497, First proviso‑‑‑Accused being of advance age or physically infirm was not a valid ground for grant of bail.

Assadullah Khan Chamkani for Applicant.

Ahmad Jan, Dy. A.‑G. for the State.

Jamshid Khan and Shamsuddin for the Complainant.

Date of hearing: 30th November, 2001.

2002 P Cr. L J 1062

[Peshawar]

Before Shah Jehan Khan, J

MUSHTAQ and another‑‑‑Petitioners

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous No.410 of 2001, decided on 19th February, 2002.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/34‑‑‑Bail‑‑‑Role o1 firing attributed to accused by the complainant was not corroborated by any independent evidence‑‑‑Prosecution witnesses were not only closely related to the deceased but were also‑ inimical to the accused‑‑‑Had the accused fired at the deceased from a distance of 23 paces by means of a D.B. shotgun, the deceased and the eye‑witness must have received some injury and the card board should have been present on the spot, but the same was not so done‑‑Case against accused, therefore, was one of further inquiry and he was admitted to bail accordingly.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/34‑‑‑Bail, refusal of‑‑‑Three eye‑witnesses had charged the accused for effective firing on the deceased by means of a kalashnikov possessed by him at the relevant time‑‑‑Eye‑witnesses, no doubt, were closely related to the deceased, but their depositions were independently corroborated by medical evidence and recovery of nine crime‑empties of kalashnikov from the place allocated to him‑‑‑Accused, thus was prima facie, connected with the commission of the offence‑‑‑Bail was refused to accused in circumstances.

Abdullah Jan Mirza assisted by Khalid Rehman Qureshi for Petitioners.

Muhammad Ayub Khan, Dy.A.‑G. for the State.

Iqbal Ahsan Tahirkheli for the Complainant.

Date of hearing: 19th February, 2002.

2002 P Cr. L J 1072

[Peshawar]

Before Mian Shakirullah Jan and Shahzad Akbar Khan, JJ

MUHAMMAD ISRAR and another‑‑‑Appellants

Versus

THE STATE‑‑‑Respondent

Criminal Appeals No.s98, Criminal Revisions Nos.38 and 58 and Murder Reference No.22 of 1999, decided on 10th January, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Eye‑witnesses were present on I the spot at the time of occurrence‑‑‑Crime‑empties secured from the spot had matched with the pistol recovered from the accused showing that all the shots had been fired from that pistol‑‑‑Conviction of accused was maintained in circumstances‑‑‑Eye‑witnesses, however, had concealed the true facts as to what had happened before the occurrence which had made the accused to resort to firing on the deceased and the motive, therefore, was dubious and shrouded in mystery‑‑‑Death sentence of accused was altered to imprisonment for life in circumstances.

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

‑‑‑‑S. 164‑‑‑Oaths Act (X of 1873), S.5‑‑‑Confession on oath‑‑‑Statement of accused recorded under S.164, Cr.P.C. on oath or affirmation is inadmissible in evidence and suffers from an illegality which cannot be cured on any principle of consent, waiver or estoppel.

Muhammad Bakhsh v. The State PLD 1956 SC (Pak.) 420; Manzur v. The State PLD 1973 Lah. 714; Karam Ilahi's case AIR 1947 Lah. 92; Gulab Khan v. The State PLD 1971 Kar. 299; State through Advocate‑General, N.W.F.P., Peshawar v. Mumtaz and 2 others PLJ 1987 Cr.C. (Peshawar) 481; Tariq Pervaiz v. The State 1992 PCr.LJ 955 and AIR 1959 All. 518 ref.

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

‑‑‑‑S.164‑‑‑Penal Code (XLV of 1860), S.302/34‑‑‑Confession‑‑­Confessional statement of accused recorded after his being in police custody for three or four days is not voluntary and needs to be rejected on the same ground.

Niaz Muhammad alias Niazi v. The State 1996 PCr.LJ 394; Abid Hussain Shah v. The State 1983 PCr.LJ 882 and Hamza v. The State 1983 PCr.LJ 892 ref.

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

‑‑‑‑S. 164‑‑‑Confession‑‑‑Admissibility in evidence‑‑‑Principles‑‑Some principles for the confessional statement to be admitted in evidence are that it should not be exculpatory; should be voluntary, it should be true.

AIR 1959 All. S 113; Qazi Parvaiz Iqbal and 2 others v. The State PLD 1976 Kar. 583 and Haq Nawaz and others v. The State and others 2000 SCMR 785 ref.

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

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Accused had no motive for the murder of the deceased‑‑‑Participation and involvement of accused in the commission of the offence was negated by the ocular as well as circumstantial evidence brought on record‑‑‑Common intention of accused with the principal co‑accused in the commission of the crimp, was even not established for making him vicariously liable for the same ‑‑‑Accused was acquitted in circumstances.

Hasan Din v. Muhammad Mushtaq and 2 others 1978 CMR 49 ref.

(f) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.34‑‑‑Common intention‑‑‑Vicarious liability---Strong circumstance showing common intention of accused with his co‑accused must exist for making him vicariously liable for the commission of offence‑‑‑Mere presence of accused on the spot would not attract the provisions of S.34. Hasan Din v. Muhammad Mushtaq and 2 others 1978 SCMR 49 ref.

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

‑‑‑‑Ss.164, & 364‑‑‑High Court (Lahore) Rules and Orders, Vol. III, Chap. 13‑‑Confession, recording of‑‑‑Procedure and necessary precautions.

AIR 1959 All. 518 and Manzoor v. The State PLD 1973 Lah.714 ref.

M. Zahoorul Haq, Bar‑at‑Law, for Appellant.

S. Azimdad Khan for the State.

Muhammad Saleem Khan for the Complainant.

Date of hearing: 10th January, 2001.

2002 P Cr. L J 1091

[Peshawar]

Before Muhammad Qaim Jan Khan, J

GHAFFAR---Appellant

Versus

THE STATE and another---Respondents

Criminal Appeal No.41 and Murder Reference No.3 of 1999, heard on 27th February, 2002.

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

----S. 302---Sentence---Motive---Lack of motive by itself is not a mitigating circumstance---Absence of motive altogether or inability of prosecution to prove motive for murder does not affect the imposition of normal penalty of death, if the case against the accused otherwise stands proved beyond reasonable doubt.

1998 SCMR 1764; 1999 SCMR 637; 1995 SCMR 1776; 2001 SCMR 726 and Waris Khan The State 2001 SCMR 387 ref.

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

----S. 302---Sentence---Case against accused for the murder of the deceased had been proved on the basis of sufficient cogent evidence--­Motive for the occurrence, whether weak or not fully established by the prosecution, did not make any difference in circumstances---Sentence of death awarded to accused by Trial Court was confirmed by High Court accordingly.

1998 SCMR 1764; 1999 SCMR $ 637; 1995 SCMR 1776; 2001 SMR 726 and 2001 SCMR 387 ref.

M. Zahoor-ul-Haq for Appellant.

S. Shaukat Hayat A.A.-G. for the State.

Khawaja Muhammad Khan for the Complainant.

Date of hearing: 27th February,2002.

2002 P Cr. L J 1294

[Peshawar]

Before Malik Hamid Saeed and Ijazul Hassan Khan, JJ

JAVED IBRAHIM PARA CHA‑‑‑Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary, Cabinet Division, Government of Pakistan, Islamabad and 4 others‑‑‑Respondents

Amended Writ Petition No.12 and connected Writ Petition No39 of 2002, decided on 5th April, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑Art. 199(1)(ii)(b)(i)‑‑‑Constitutional petition‑‑‑Habeas corpus petition‑‑‑Locus standi to file‑‑‑Locus standi of petitioner was of much importance in a petition in the nature of habeas corpus‑‑‑Criterion for filing habeas corpus petitions was that such‑like petitions should normally be made by relations of detenu or by a friend who could satisfy the Court that there was no one else among relations of detenu to challenge detention order‑‑‑One could not clothe his grievance with interest or welfare of others merely because of his individual thinking in a matter against interest of community at large as entitlement of such a person could only be considered if he was a person with sufficient interest to bring claims on behalf of poor classes or economically or socially disadvantaged sections of society‑‑‑Petitioner, in the present case did not fulfil those requirements for invoking principle of pro bono publico in aid of action brought in petition‑‑‑If alleged detenus were in custody of law‑enforcing agencies for committing some breach of law, they would be dealt with in accordance with law and would not be deprived from any lawful right given to them by Constitution of Pakistan (1973) or any privilege provided by law ‑‑‑Habeas corpus petition was not maintainable, because petitioner had no locus standi to invoke Constitutional jurisdiction of High Court under Art. 199 of Constitution of Pakistan (1973).

AIR 1951 Trav‑Co 125; Azizul Haque v. Province of East Pakistan and another PLD 1968 Dacca 728 and Col. (Retd.) Muhammad Akram v. Federation of Pakistan through Secretary, Ministry of Defence and others 1998 SCMR 2073 ref.

Q.M. Anwar for Petitioner.

Salahuddin Khan, Dy.A.‑G. and Q. Rashidul Haq, A.‑G. for Respondents.

Date of hearing. 28th March, 2002.

2002 P Cr. L J 1305

[Peshawar]

Before Tariq Parvez and Muhammad Qaim Jan Khan, JJ

SARTAJ‑‑‑Appellant

Versus

THE STATE‑ ‑‑Respondent

Criminal Appeal No.275 of 2001, decided on 20th February, 2002.

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

‑‑‑‑Ss. 9, 25 & 34‑‑‑Criminal Procedure Code (V of 1898), S.103‑‑­Appreciation of evidence‑‑‑Report of Chemical Examiner had validly been received in evidence‑‑‑Both prosecution witnesses had stated before the Court that parcel containing sample which was sent for test, was affixed with two seals, whereas report of Chemical Examiner had referred to one seal‑‑‑Such discrepancy would not be material; firstly, for the reason that both prosecution witnesses in their examination‑in­-chief and cross‑examination had accepted two seals and so was in recovery memo.; when there was preponderance of evidence both oral and documentary that two seals were fixed mere mentioning of one seal in the report of Chemical Examiner would not affect prosecution case; secondly, parcel when prepared contained number and date of F. I. R. and name of police station and same was recorded in report of Chemical Examiner so that case property of one case would not get mixed up with the other‑‑‑Identity of parcel otherwise being established, mere mentioning of one seal by Chemical Examiner would not detract and affect testimony of two prosecution witnesses‑‑‑Accused had failed to prove that he had been falsely involved in the case‑‑‑Non‑observance of provisions of S.103, Cr.P.C. i.e. non‑association of public witnesses, had been done away with by S.25 of Control of Narcotic Substances Act, 1997‑‑‑Necessity of association of public witness was to exclude possibility of false implication and the false plantation‑‑‑Where there was no ill‑will between police and accused and when quantity recovered was huge, no question would be of false implication or plantation‑‑­Contradiction regarding distance of police station or stopping of vehicle at police station, were statements which were made by prosecution witnesses from memory and memory of two persons regarding one fact could differ‑‑‑Prosecution having successfully brought home charge against accused, conviction and sentence recorded against accused by Trial Court could not be interfered with.

Javed A. Khan assisted by Attaullah Khan for Appellant.

Tariq Khan Kakar for the State.

Date of hearing: 20th February, 2002.

2002 P Cr. L J 1309

[Peshawar]

Before Talaat Qayum Qureshi, J

RAHAT SHAH and 3 others‑‑‑Petitioners

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.37 of 2002, decided on 1st March, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.400/401‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑‑‑Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.4‑‑‑Bail, grant of‑‑­Except statement of Investigating Officer no other evidence was available on record to connect accused with commission of offence as public in general did not come forward to give evidence against accused‑‑‑Arms Expert did not bother to mention as to whether arms allegedly recovered from the accused were in working condition or not‑‑‑No evidence was available on record to show that accused were deriving or arranging for means or measures for committing dacoity‑‑‑Question as to whether accused had associated for preparation of dacoity or they were busy in gossip, would need further enquiry‑‑‑Whether S.13 of West Pakistan Arms Ordinance, 1965 and S.4 of Suppression of Terrorist Activities (Special Courts) Act, 1975, were applicable to the case against accused, would be seen after recording of evidence‑‑‑Bail was granted in circumstances.

Amir Ali v. State 1994 PCr.LJ 576; 1990 PCr.LJ 41; AIR 1960 Punj. 452; AIR 1940 Punj, 456; AIR 1952 Punj. 249 and 1989 PCr.LJ 2314 ref.

Ahmad Salim for Petitioners.

Abdul Rauf Khan Gandapur for the State.

Date of hearing: 1st March, 2002.

2002 P Cr. L J 1312

[Peshawar]

Before Ijaz‑ul‑Hassan and Ejaz Afzal Khan, JJ

MUSHTAQ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 168 of 2001, decided on 10th January, 2002.

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

‑‑‑‑Ss. 7/9‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4‑‑‑Appreciation of evidence‑‑‑Plea of accused from the very beginning was that he had no concern whatsoever with vehicle in question as an owner nor he knew from where contraband narcotics were allegedly recovered nor had any knowledge of presence of such contraband in the said vehicle‑‑‑Vehicle was owned by co‑accused and was driven by him at the relevant time and alleged occurrence took place when accused was travelling with co‑accused being acquainted with him as resident of same colony Factum of innocence and ignorance with regard to his involvement in the case had also been proved by co‑accused right from the beginning when his statement was recorded under S.161, Cr.P.C. as well as his statement recorded on oath as his own witness under S.340(2), Cr.P.C. wherein co‑accused had exonerated accused from any involvement in commission of offence‑‑‑No legal evidence was brought on record to connect the accused with commission of offence‑‑­Mere presence of accused at the time of occurrence as passenger with co-accused in vehicle in question without any knowledge that any contraband was lying in vehicle, could not be made basis for conviction of accused‑‑‑Case against accused being highly doubtful, Trial Court had erred in law in not extending benefit of such doubt to accused‑‑‑For giving benefit of doubt to an accused, it was not necessary that there should be many circumstances creating doubts‑‑‑If there was a circumstance which created a reasonable doubt in prudent mind about guilt of accused, then accused would be entitled to benefit of doubt not as a matter of grace and concession, but as a matter of right‑‑Prosecution having failed to produce any confidence‑inspiring evidence to connect accused with crime beyond any shadow of doubt, conviction and sentence awarded to accused , could not be upheld.

Tariq Pervez v. The State 1995 SCMR 1345; Asghar Ali v. The State 1996 SCMR 1541; Munawar Hussain alias Bobi and 2 others v. The State 1993 SCMR.785 and Rasool Bakhsh v. The State 2000 PCr.LJ 1975 ref.

(b) Criminal trial‑‑‑

‑‑‑‑ Benefit of doubt, grant of‑‑‑For giving benefit of doubt to an accused, it was not necessary that there should be many circumstances creating doubt‑‑‑If there was one circumstance which created a reasonable doubt in prudent mind about the guilt of accused, he would be entitled to benefit of doubt not as a matter of grace or concession, but as a matter of right.

Tariq Pervez v. The State PLD 1995 SC 1345 (sic) ref.

Javed A Khan for Appellant.

Sardar Shaukat Hayat, A.A.‑G. for the State.

Date of hearing: 13th December, 2001.

2002 P Cr. L J 1374

[Peshawar]

Before Shah Jehan Khan and Abdur Rauf Khan Lughmani, JJ

GUL MUHAMMAD‑‑‑Appellant

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No.214 of 1999, decided on 25th October, 2001.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. ‑ 302(b) & 304‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.17‑‑­Appreciation of evidence‑‑‑Eye‑witness who was real maternal‑uncle of accused and brother of deceased, had no enmity or ill‑will against accused and nothing was on record to suggest that deceased had any enmity with anyone‑‑‑Only one person/accused having been charged, question of substitution would not arise in the case ‑‑Prosecution/eye­witness has been consistent that occurrence had taken place in his presence‑‑‑Had the charge levelled against accused by eye‑witness who was real maternal‑uncle of accused, been false, other heirs of deceased would not have allowed him to do so or they would have compromised case with accused‑‑‑Mother of accused was murdered; but accused made no effort to make a report of occurrence, which had proved that he himself had committed murder of his mother‑‑‑In initial report blows had been attributed to accused, but in witness‑box, eye‑witness spoke of one blow given by accused to deceased‑‑‑Eye‑witness having not been confronted with report, no benefit could be given to accused‑‑‑Report made in hospital in shape of Murasila was signed by complainant who was an educated person‑‑‑Iron rod with which deceased was attacked, blood picked up .from spot with help of cotton, and blood‑stained shirt of deceased, had revealed human blood of same group as that of deceased as was evident from report of Forensic Science Laboratory‑‑‑Accused remained absconded for about two months after occurrence and no plausible explanation had been given for such abscondence‑‑‑Accused was a vagabond and was earlier involved in murder of his brother‑in‑law and just ten days before occurrence was acquitted in that case on basis of compromise‑‑‑In presence of convincing and reliable ocular testimony corroborated by unexplained abscondence and various recoveries with regard to guilt of accused, insufficient motive or failure to prove motive could not adversely affect the prosecution case nor same would make out a case for lesser sentence‑‑‑Death penalty awarded to accused by Trial Court by way of Qisas for want of required number of witnesses or confession of accused being not proper sentence of death should have been imposed as "Ta'zir" under S.302(b), P.P.C.‑‑‑High Court amended conviction order to the extent that accused was to suffer death as "Ta'zir".

Abdur Rauf v. State 1998 SCMR 1773 and Waris Khan v. The State 2001 PLJ 41 ref.

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

‑‑‑‑S. 544‑A‑‑‑Compensation to ‑heirs of deceased‑‑‑Compensation under S.544‑A, Cr.P.C. was mandatory, unless Court gave reasons to the contrary.

Malik Fakhar Azam Khan for Appellant.

Abdul Fayaz for the State.

Complainant in person.

Date of hearing: 24th October, 2001.

2002 P Cr. L J 1381

[Peshawar]

Before Malik Hamid Saeed and Ijaz‑ul‑Hassan, JJ

MUHAMMAD DAUD KHAN‑‑‑ Petitioner

Versus

S.H.O. POLICE STATION TANGI DISTRICT CHARSADA and 5 others‑‑‑Respondents

Writ Petition No.457 of 2000, decided on 6th February, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 419/420/468/411‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition, maintainability of‑‑‑Quashing of F.I.R.‑‑‑F.I.R. sought to be quashed, prima facie had disclosed commission of cognizable offence which required investigation to be conducted in order to find out truth and same could not be stifled or killed in Constitutional petition‑‑‑Police Investigation which exclusively fell within their domain and in which law had imposed upon them duty of inquiry could not be interfered‑‑‑Function of Courts and Investigating Agency were complimentary and not overlapping as finding of one could be substituted for other‑‑‑Petitioner, after conclusion of inquiry and submission of report under S.173, Cr.P.C could, if felt aggrieved, invoke provision of Cr.P.C. for his discharge or acquittal or for quashing of proceedings before competent Court and not at the stage when investigation was yet to take its normal course‑‑‑Petitioner was identifier as well as attesting witness in entire transaction and. was alleged to have actively facilitated commission of offence‑‑‑Petitioner having failed to point out any jurisdictional defect or infraction of a mandatory provision of law in registration of F.I.R. and in investigation of case, petition for quashing F.I.R. was not maintainable.

Qazi Muhammad Jamil for Petitioner

Imtiaz Ali, Addl. A.‑G. for Respondents Nos. 1 and 2.

Hamid Farooq Durrani, Dy. A.‑G. for Respondent No.3.

Jehanzeb Rahim, Barrister for Respondents Nos.4 to 6.

Waris Khan, A.A.‑G. for the State.

2002 P Cr. L J 1384

[Peshawar]

Before Tariq Parvez Khan, J

LUTFUR REHMAN and 2 others‑‑‑Petitioners

Versus

THE STATE and another‑‑‑Respondents

Criminal Revision No.90 of 1999, decided on 4th March, 2002.

(a) Canal and Drainage Act (VIII of 1873)‑‑‑

‑‑‑‑Ss. 70 & 75‑‑‑ Penal Code (XLV of 1860), S. 40 ‑‑‑Criminal Procedure Code (V of 1898), S.407‑‑‑ Complaint against diversion/stoppage of water‑‑‑Appeal to District Magistrate‑‑‑Competency‑‑‑Any offence mentioned in S.70 of Canal and Drainage Act, 1873, would be an offence within definition of S.40, P.P.C. as on conviction by Magistrate 2nd Class appeal would be to District Magistrate within the contemplation of S.407, Cr.P.C.‑‑‑Appeal filed and decided by District Magistrate was within his jurisdiction.

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

‑‑‑Ss. 439 & 439‑A‑‑‑Sessions Judge's powers of revision‑‑‑Powers of Sessions Judge under S.439‑A, Cr.P.C. were vast and would include order passed by any Magistrate, be it a Magistrate 2nd Class, 1st Class and for that purpose even a District Magistrate would also be a Magistrate though exercising Appellate jurisdiction.

Sherdil Awan for Petitioners.

Waris Khan, Addl. A.‑G. for the State.

Abdul Samad Khan for Respondent No.2.

Date of hearing: 4th March. 2002.

2002 P Cr. L J 1386

[Peshawar]

Before Ijaz‑ul‑Hassan, J

ABDULLAH SHAH‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous No.393 of 2002, decided on 26th April, 2002.

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

‑‑‑‑Ss. 497(1) & 103‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 25‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑‑­Bail, grant of‑‑‑Accused was directly nominated in F.I.R. for an offence which carried punishment falling under prohibitory clause of S.497, Cr.P.C.‑‑‑Accused had been apprehended at the spot and large quantity of Charas and heroin had been recovered from his possession in addition to an unlicensed pistol of .30 bores and 50 cartridges of same bore and recovery memo. to that effect had been prepared at the spot which was duly witnessed by police officials‑‑‑Ground of non‑compliance of formalities of S.103, Cr.P.C. was not available to accused and recovery was not doubtful for such non‑compliance as provision of S.103, Cr.P.C had no application to narcotic cases as per provision contained under S. 25 of Control of Narcotic Substances Act, 1997 whereby applicability of S.103. Cr.P.C. had been excluded‑‑‑Even otherwise it was not absolute requirement that in every case witnesses of public must necessarily be produced as it would depend upon fact of each case‑‑­Police officials were as good witnesses as any person from public provided no animosity was alleged and proved against them‑‑­Circumstances of case were sufficient to prove grounds for believing that accused prima facie was connected with offence charge with‑‑‑Discretion in refusing bail to accused having been properly exercised by Court below, bail application filed by accused was dismissed.

Hadi Bux alias Hadoo v. The State 2000 PCr.LJ 714; Tahir v. The State 2000 PCr.LJ 949; Nauroz Khan alias Tour v. State 2000 PCr.LJ 1222; Liaqat Ali v. The State 2000 PCr.LJ 1317; Muhammad Ashraf v. The State 2000 PCr.LJ 917; Syed Asif Ali v. The State 2001 PCr.LJ 331; Fida Jan v. State 2001 SCMR 26; Naseebullah v. The State 2002 MLD 241 and Muhammad Farooq Afridi v. The State 2002 PCr.LJ 196 ref.

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

‑‑‑‑S. 497(2)‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Every hypothetical question which could creep into mind and which could be resolved only after recording evidence and during trial, would not make a case that of further inquiry‑‑‑Case of further inquiry would only be made out when data collected by prosecution was not sufficient to provide reasonable grounds for believing that a prima facie case existed against accused.

Naveed Akhtar for Petitioner.

Ms. Mussrrat Hilali, Addl. A.‑G. for the State.

Date of hearing: 26th April, 2002.

2002 P Cr. L J 1390

[Peshawar]

Before Nasirul Mulk and Muhammad Qaim Jan Khan, JJ

Syed KHALID BACHA‑‑‑Petitioner

Versus

DEPUTY COMMISSIONER, MARDAN and 6 others‑‑‑Respondents

Writ Petitions Nos. 1437 of 1998 and 6 of 2000, decided on 22nd April, 2002.

(a) Frontier Crimes Regulation (III of 1901)‑‑‑

‑‑‑‑Ss. 8 & 9‑‑‑Decree passed by Assistant Political Agent ‑‑‑Execution‑‑‑Jirga in its decision had directed Deputy Commissioner to execute the decree‑‑‑Validity‑‑‑Decree granted by Assistant Political Agent, could not be executed by Deputy Commissioner in view of S.9 of Frontier Crimes Regulation, 1901‑‑‑Despite incorporation of a term in the decision of Jirga directing that the Deputy Commissioner and the Political Agent, would be responsible for implementation of the decision of Jirga, the decree could not be executed by the Deputy Commissioner.

(b) Frontier Crimes Regulation (III of 1901)‑‑‑

‑‑‑‑S. 9‑‑Decree passed by Assistant Political Agent exercising power of Deputy Commissioner‑‑‑Execution‑‑‑Procedure‑‑‑Execution of such decree has the same effect as the decree of a Civil Court of ultimate resort and can be executed as a decree of Civil Court.

(c) Frontier Crimes Regulation (III of 1901)‑‑‑

‑‑‑‑Ss. 8, 9, 11 & 48‑‑‑Civil Procedure Code (V of 1908), S.38 & O.XXI, Rr.5 & 6‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Decision of Jirga‑‑‑Execution in settled districts‑­‑Dispute between the parties was with regard to payment of certain amount ‑‑‑Jirga decided the matter against the petitioners which was attested by Assistant Political Agent and a decree was passed ‑‑‑Jirga in its decision directed Deputy Commissioner to execute the decree‑‑‑Execution of the decree was to take place in settled District where Frontier Crimes Regulation, 1901, was not in force‑‑‑Decree was transferred to the settled District and the Deputy Commissioner issued the process‑‑‑Validity‑‑‑Decree could be executed only in accordance with the law of execution of decree enforced in the settled District, under the Civil Procedure Code, 1908‑‑‑For execution of. decree in settled District, the Assistant Political Agent passing the decree had to follow the procedure laid down in S.38 read with O.XXI, Rr.5 & 6, C.P.C.‑‑‑Mode adopted by the Assistant Political Agent and the implementation of the decree by the Deputy Commissioner and the Assistant Commissioner, of the settled District was contrary to law‑‑‑Process issued by the authorities was illegal and without lawful authority and the same was set aside by High Court‑‑‑High Court declined to interfere with the judgment and decree passed by the Assistant Political Agent on account of availability of alternative statutory remedy to the petitioners‑‑‑Constitution petition was allowed accordingly.

(d) Frontier Crimes Regulation (III of 1901)‑‑‑

‑‑‑‑Ss. 8 & 48‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Objection to constitution of Jirga and inapplicability of its decision‑‑‑Remedy‑‑‑Such ~ objection can be raised in appeal to the Commissioner under S.48 of Frontier Crimes Regulation, 1901‑‑‑If a decree has been passed by the Assistant Political Agent without notice to the petitioner, he can also move an application for setting the same aside.

Saeed Baig for Petitioner.

Jehanzeb Rehman, A.‑G. for Respondents Nos. 1 and 2.

Hamid Tariq Durrani for Respondents Nos.3 and 4.

M. Anwar Khattak for Respondents Nos.6 and 7.

Date of hearing: 22nd April, 2002.

2002 P Cr. L J 1395

[Peshawar]

Before Malik Hamid Saeed, J

FAQIR HUSSAIN and 16 others‑‑‑Petitioners

Versus

SALEEM‑UR‑REHMAN and 2 others‑‑‑ Respondents

Criminal Miscellaneous No. 17 of 2002, decided on 24th June, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑ ‑‑Ss. 145, 200, 537 & 561‑A‑‑‑Breach of peace‑‑‑Quashing of order‑‑­Trial Magistrate after appreciation of evidence of both parties with regard to disputed issues directed that petitioners, if dispossessed from disputed lands, be put in possession of the same‑‑‑Both parties feeling aggrieved went in revision and revisional Court dismissed complaints filed by petitioners holding that trial Magistrate had not fulfilled required mandatory formality as provided by S.200, Cr.P.C. by not recording statements of complainant or their attorney on oath and by so doing trial Magistrate had committed illegality which was not curable under S.537 Cr.P.C.‑‑‑Validity‑‑‑Under. S.537, Cr.P.C. all errors, omissions or irregularities in proceedings before competent Courts were curable, unless such error, omission or irregularity had in fact occasioned a failure of justice‑‑‑Explanation under S.537, Cr.P.C. revealed that Court while determining as to whether any omission or irregularity in proceedings under the Code had occasioned a failure of justice, would have regard to fact whether objection could or should have been raised at earlier stage in proceedings‑‑‑Matter in the present case twice remained under consideration before Trial Court, but at no stage of proceedings any objection was raised about alleged omission of Trial Magistrate to examine complainants within meaning of S.200, Cr.P.C.‑‑‑Even such objection was, not raised when revisional Court remanded matter back to trial Magistrate with certain directions‑‑‑Due to non‑examination of complainants under S.200, Cr.P.C., no prejudice had been, caused to rival party in their defence as they had fully availed opportunity to cross‑examine complainants and their witnesses in proceedings before , trial Magistrate ‑‑‑Revisional Court, in circumstances was not right to treat the same as an illegality not curable under S.537, Cr.P.C. which was merely an irregularity and in absence of any prejudice caused to respondent was curable under S.537, Cr.P.C.‑‑­Order of revisional Court which had caused gross miscarriage of justice, was quashed and that of the Trial Court was restored in circumstances.

Shamim v. The State and another PLD 1966 SC 178 ref.

Abdul Sattar Khan for Petitioners.

Ali Jamil Qazi for Respondent.

Akhtar Naveed, Dy. A.‑G. for the State.

Date of hearing: 17th June, 2002.

2002 P Cr. L J 1402

[Peshawar]

Before Tariq Pervez Khan and Ijaz‑ul‑Hassan, JJ

MAHMOOD KHAN‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 91 of 2000, decided on 15th May, 2002.

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

‑‑‑Ss. 6, 7, 9, 25, 74 & 76‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3/4‑‑‑Criminal Procedure Code (V of 1898), S.103‑‑­Appreciation of evidence‑‑‑Stance taken by accused that contraband which belonged to another person had been foisted upon him, was not convincing as not only accused had failed to support his plea by any evidence, but also had remained unable to show any background of bitterness or ill‑will between him and police so as to prompt police to falsely implicate him in a case of such nature‑‑‑If provisions of S.103, Cr.P.C. were not complied with by Investigating Officer, provisions of S.25 of Control of Narcotic Substances Act, 1997 had clearly excluded application of S.103, Cr.P.C. to cases under Control of Narcotic Substances Act, 1997‑‑‑Investigating Officer had furnished valid explanation for non‑associating two public witnesses from the spot‑‑‑No legal prohibition existed to the effect that Investigating Officer could not be a complainant, a witness to commission of offence and also an Investigating Officer provided that did not, in any manner, prejudiced the accused‑‑‑Contention of accused that as provisions of S.9 of Control of Narcotic Substances Act, 1997 as well as provisions of Arts.3/4 of Prohibition (Enforcement of Hadd) Order, 1979 were attracted in his case, penal provision carrying a lesser punishment was to be applied to him, was repelled in view of provision of S.76 of Control of Narcotic Substances Act, 1997, which had provided an overriding effect to provisions of Control of Narcotic Substances Act, 1997 over anything contained in any other law for the time being in force‑‑‑Confessional statement made by accused which was recorded after observing all formalities, was voluntary and true and did not suffer from any defect of form or substance‑‑‑Confession though was retracted by accused, but mere retraction was not enough to make the same involuntary or diminish its intrinsic value‑‑‑Mere fact that vehicle from which contraband was recovered had not been produced before Court, was not fatal to prosecution story‑‑‑Vehicle having been found used in commission of crime had already stood confiscated to State‑‑‑Accused who was involved in a case of heinous nature, deserved no leniency‑‑‑Prosecution case having been proved against him beyond any reasonable doubt, conviction and sentence passed against accused by Trial Court, were maintained.

Tariq Parvez v. The State PLD 1995 SC 1345; Ghaniur Rehman v. The State 1996 PCr.LJ 347; Muhammad Afzal v. The State 1998 .PCr.LJ 955; Naveed Ahmad Khan v. The State 1999 PCr.L J 63; Imran Saeed v. The State 2001 PCr.L J 1365; Ijaz Khan and others v. State and another 2001 YLR 2039; Nasrullah v. The State PLD 2001 Pesh. 152; Mst. Nasira Bibi v. The State PLD 1998 Lah. 146; Khalil Ahmad v. The State PLJ 2001 Cr.C. 1312; Munawar Hussain and 2 others v. The State 1993 SCMR 785; Rasool Bakhsh v. The State 2000 PCr.LJ 1975; Hazrat Ali Khan v. The State 1989 MLD 3246; Muhammad Farooq Afridi v. The State 2002 PCr.L J 196; Fida Gul v. The State 2001 SCMR 36; Shahid Baloch, v. The State 1998 PCr.L J 628; Munir Mushtaq v. Collector of Customs PLD 1999 SCMR ; Syed Ali Shah alias Shahji v. The State 1993 PCr.L J 1118; Mst. Darya Khatoon v. The State.1996 PCr.L J 1477; Muhammad Riaz v. The State PLD 1994 Pesh. 102; Muhammad Ismail and another v. The State 1995 SCMR 1615; Mir Azam v. The State 1994 Pesh. 155; Mst. Nasim Akhtar v. The State 1999 SCMR 1744; Chaudhry Muhammad Yaqoob v. The State 1992 SCMR 1983; Ahmad Hassan v. The State 2001 SCMR 505 and Nazar Hussain v. The State 2002 PCr.L J 440 ref.

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

‑‑‑‑Ss. 9, 29, 35 & 36‑‑‑Appreciation of evidence‑‑‑Sending sample of narcotic substances for chemical analysis‑‑‑Provisions of Ss.35 & 36 of Control of Narcotic Substances Act, 1997, did not specify any particular quantity of recovered substance to be sent as a sample for chemical analysis‑‑‑Presumption under S.29 of Control of Narcotic Substances Act, 1997could be raised in such a case regarding allegation levelled against accused to be true in its entirety and it was for accused to rebut such presumption.

Fida Jan v. The State 2001 SCMR 36 ref.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Arts. 37 & 39‑‑‑Criminal Procedure Code (V of 1898), S.164‑‑­Confessional statement‑‑‑Delay in recording‑‑‑Delay in recording confessional statement, per se, was no ground to discard the same unless it was proved or shown from circumstances that it was obtained by coercion, threat, or pressure, etc.

Riaz Khan for Appellant.

Asif Ali Shah for the State.

Date of hearing: 15th May, 2002.

2002 P Cr. L J 1411

[Peshawar]

Before Sardar Muhammad Raza Khan, C. J.

JANUS KHAN‑‑‑Petitioner

Versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Applications Nos. 1124, 1125, 1126, 1127 and 1231 of 2001, decided on 29th October, 2001.

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

‑‑‑‑S. 497‑‑‑Pepal Code (XLV of 1860), S.216‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑‑‑‑Surrender of Illicit Arms Act (XXI of 1991), S.7‑‑‑Explosive Substances Act (VI of 1908), S.5‑‑‑Suppression of Terrorist Activities (Special Courts) Act (XV of 1975), S.4‑‑‑Bail, grant of‑‑‑Section 4 of Suppression of Terrorist Activities (Special Courts) Act, 1975 was not applicable to the case of accused as the said Act stood repealed before the recovery of kalashnikov from accused and his case would be dealt with under Anti‑Terrorism Act,1997‑‑‑Question as to whether petitions filed by accused fell within definition of terrorism was yet to be decided at the trial and until it was so decided, case of accused would fall under S.13, West Pakistan Arms Ordinance, 1965‑‑‑Only provision that fell within prohibitory clause of S.497, Cr.P.C. was S.7 of Surrender of Illicit Arms Act, 1991‑‑‑To possess arms without licence or permit by itself was an offence under West Pakistan Arms Ordinance, 1965, but it would become an offence under Surrender of Illicit Arms Act, 1991 when Government would call upon public to surrender such arms within a specified time and arms were not accordingly surrendered within such period or within extended period‑‑‑Such time limit was to be provided under S.4 of Surrender of Illicit Arms Act, 1991 under which it was incumbent upon Federal Government to issue a Notification specifying time within which every person had to surrender arms and nothing could be called an offence unless said Notification was issued by Government‑‑‑ Prosecution, in the present case, could not produce any such Notification‑‑‑Recoveries in question, would not fall within circumstances.

Ishtiaq Ibrahim for Petitioner.

Abdul Karim for the State.

Dates of hearing: 24th and 29th of October, 2001.

2002 P Cr. L J 1418

[Peshawar]

Before Ijaz‑ul‑Hassan, J

BADAM SHER ‑‑‑Petitioner

versus

MUHAMMAD ALI and 2 others‑‑‑Respondents

Criminal Miscellaneous No.364 of 2002, decided on 10th May, 2002.

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

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ssx.302/324/148/149‑‑‑Bail, grant of‑‑‑Capital punishment‑‑‑Further inquiry‑‑‑Bail in a case of capital punishment was always granted or refused in the light of material placed before Court and unless Court would come to .conclusion that no reasonable ground existed to believe that a person had committed an offence punishable with death or imprisonment for life, he would not be entitled to claim benefit of subsection (2) of S.497, Cr.P.C.

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

‑‑‑‑S. 497‑‑‑Penal. Code (XLV of 1860),Ss.302/324/148/149‑‑‑Bail, grant of‑‑‑Tender age of the accused‑‑‑Effect‑‑‑Specific role of firing had been attributed to the accused and father of deceased in his statement recorded under S.161, Cr.P.C. had fully implicated him‑‑‑Medical evidence had also supported charge against accused‑‑‑Ample evidence was available against the accused on record to suggest that reasonable grounds existed to believe that he was guilty of offence covered by prohibitory clause of S.497, Cr.P.C.‑‑‑Accused had claimed to have sustained injuries at the hands of complainant in his report, but name of complainant was missing from the report‑‑‑Accused though was of tender age at the time of commission of offence, but minority, per se could not be considered a good ground for release of accused on bail.

Nazar Muhammad v. The State and another PLD 1978 SC 236; Muhammad Ayub and others v. The State 1987 SCMR 1906; Muhammad Ashraf v The State PLD 1991 Lah. 347; Abdul Waheed v. The State 1994 PCr.LJ 2345; Usman Ali v. The State 1996 PCr.LJ 166; Ibrar Hussain and another v. The State 1996 PCr.LJ 1679; Muhammad Mansha and another v. The State 1996 PCr.LJ 1981; Mazhar v: The Staie 1997 MLD 1553; Shahzamin v. The State and another' 1999 PCr.LJ 256; Muhammad Ramzan v. The State 1999 PCr.LJ 1333; Jalal and another v. The State and another 2001 PCr.LJ 1355; Anwar Khan v. The State 2002 PCr.LJ 400; Abdur Razaq v. The State 2002 PCr.LJ 414; Muhammad Nasim v. The State 2002 PCr.LJ 438; Gut Muhammad Shah v. The State 2002 PCr.LJ 289; Muhammad Yousaf and 5 others v. The State and others 2002 PCr.LJ 293; Mst. Maqsood Begum v. Muhammad Maroof 1998 PCr.LJ 56 and Manzoor v. The State PLD 1972 SC 81 ref.

M. Imdad Hussain Adil for Petitioner.

Abdul Karim for the State.

Zeeshan Ali Kiyani for the Complainant.

Date of hearing: 10th May, 2002.

2002 P Cr. L J 1424

[Peshawar]

Before Tariq Pervez Khan and Muhammad Qaim Jan Khan, JJ

ABDULLAH‑‑‑Appellant

Versus

THE STATE‑‑--Respondent

Jail Criminal Appeal No. 101 of 1999, heard on 20th March, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Trial Court relying on confessional statement of accused found him guilty of offence of Qatl‑e­-Amd of his father‑‑‑Except confession of accused no other evidence was available against him‑‑‑Expert report showed that three empties of .30 'bore were recovered from spot on day of occurrence which were not wedded with pistol allegedly recovered from the accused‑‑‑Contradictory statements were made as to who had produced accused for recording confession and as to who had taken accused to judicial lock‑up‑‑Such confession could not be held to be a voluntarily made confession‑‑Three co‑accused had been extended benefit of doubt‑‑‑In absence of any other evidence against accused except confession, Court would scrutinize such confession with more care and caution‑‑‑Where confession was found not to be true, but voluntary or where there was a voluntary confession, but untrue, such confession could not be legally taken into consideration‑‑­Alleged confession of accused on basis of which accused was convicted and sentenced, was not only unvoluntary, but also was untrue‑‑‑Major son and ailing widow of deceased stated before Court that they did not want to prosecute appeal‑‑‑Court allowing appeal against judgment of Trial Court, set aside conviction and sentence of accused and acquitted him of the charge.

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

‑‑‑‑Arts. 37 & 39‑‑‑Confession‑‑‑When no other evidence was available against accused except confession, Court would scrutinize such confession with more care and caution‑‑‑Adopting such course was to satisfy mind of the Court that the confession was not only true, but was also voluntarily made‑‑‑Where confession was found not to be true,. but voluntary or where there was a voluntary confession, but untrue, such confession could not be legally taken into consideration.

Noor Alam for Appellant.

Jamil Omar for the State.

Date of hearing: 20th March, 2002

2002 P Cr. L J 1427

[Peshawar]

Before Malik Hamid Saeed, J

SHEREEN ‑‑‑ Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.438 of 2000, decided on 6th May, 2002.

Penal Code (XLV of 1860)‑‑‑--

‑‑‑‑S. 193‑‑‑Criminal Procedure Code (V of 1898), S.195‑‑‑Appreciation of evidence‑‑‑Accused did not deny his signature over statement under S.164, Cr.P.C. but had stated that S.H.O. concerned had obtained his signature on a blank paper and alleged contents of statement had not come out from his mouth‑‑‑Trial Court without examining Tehsildar or his clerk in rebuttal to plea of accused found accused guilty of charge and awarded him punishment‑‑‑Conviction and sentence recorded by Trial Court were not sustainable for reason that under 5.195, Cr.P.C. it was competency of Trial Court to file a complaint and not S.S.P. concerned‑‑­No cognizance of offence under 5.193, P.P.C. could have been taken by Trial Court, who had committed an illegality/irregularity to try, accused on complaint of S.S.P. by deviating from relevant provisions of law on the subject‑‑‑Conviction and sentence awarded to accused by Trial Court were set aside and he was acquitted of charge.

1984 PCr.LJ 1722 and 1984 PCr.LJ 2797 ref.

Said Rehman Khan for Appellant.

Akhtar Naveed, Dy. A.‑G. for the State.

Date of hearing: 6th May, 2002.

2002 P Cr. L J 1429

[Peshawar]

Before Shah Jehan Khan, J

JAVID GUL‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Bail Petition No.270 of 2001, decided on 26th July, 2001.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 103 & 497(2)‑‑‑Control of Narcotic Substances Act (XXV of 1997). Ss. 9 & 21‑‑‑West Pakistan Arms Ordinance (XX of 1965), S.13‑‑­Bail, grant of‑‑‑Further inquiry‑‑ ‑Nothing was on record to show that house wherefrom alleged recovery of contraband Charas and illicit arms was effected, was exclusively in occupation of accused‑‑‑Alleged recovery was neither made from person of accused nor at his pointation‑‑‑Joint house of accused was raided without obtaining a search warrant as required under S.21 of the Control of Narcotic Substances Act, 1997‑‑‑Alleged recovery was also not effected in presence of two respectables of locality as required under S.103. Cr.P.C.‑‑‑Accused had alleged that recovery had been planted against him at the behest of accused in other case‑‑‑Case against accused being of further inquiry he was enlarged on bail.

Muhammad Ashraf v. State 2000 PCr. LJ 917 and Waris Khan v. State 2000 PCr. LJ 1225 ref.

Noor Alam Khan for Petitioner.

Tariq Khan Kapar for the State.

Date of hearing: 26th July, 2001.

2002 P Cr. L J 1454

[PESHAWAR]

Before Abdur Rauf Khan Lughmani and Ejaz Afzal Khan, JJ

HAJI‑‑‑Appellant

versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No.79 with Murder Reference No. 10 of 2000, decided on 19th April, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑One person had been charged in a simple and straightforward manner without any exaggeration or material omissions‑‑‑Medical evidence had spoken volumes that injury on person of deceased had resulted from fire‑arm which caused death of deceased‑‑­Apart from dying declaration, qualitative and quantitative ocular testimony was furnished by two eye‑witnesses‑‑‑Both witnesses at trial squarely charged accused for having fired at deceased in their presence at relevant time‑‑‑Said witnesses were cross‑examined and nothing damaging to prosecution or favourable to accused could be brought on record‑‑‑Investigating Officer effected certain recoveries i.e. blood­stained earth, one empty of kalashnikov and one live cartridge‑‑‑Size of injury suggested that it was caused with 7.62 bore and weapon was kalashnikov‑‑‑Accused remained outlaw for about one year and 10 months and had not been able to give satisfactory and convincing account of his abscondence‑‑‑Mere statement of the accused that he had gone out of village to earn livelihood could not be accepted‑‑‑Such piece of evidence had lent independent corroboration to ocular testimony as well as dying declaration‑‑‑Dying declaration and statements of two eye­witnesses, showed that accused suspected the deceased of having illicit relations with his sister which appeared to be cause of annoyance‑‑­Deceased was fired at once though accused was in a position to fire more shots, but he refrained from so doing‑‑‑Sentence of death awarded to accused by Trial Court was altered to imprisonment for life.

Dost Muhammad Khan for Appellant.

Shaukat Hayat Khan Khakwani, Dy. A.‑G. for the State.

Date of hearing: 19th April, 2002.

2002 P Cr. L J 1457

[Peshawar]

Before Tariq Parvez Khan, and Abdur Rauf Khan Lughmani, JJ

NOOR JALAL KHAN‑‑‑Appellant

versus

THE STATE and others‑‑‑Respondents, Criminal Appeal No. 18 of 1999, decided on 24th April, 2002.

(a),Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Deceased who was injured in the occurrence himself was the complainant in the case and his statement was considered as dying declaration which was corroborated by prosecution witnesses‑‑‑Dying declaration was recorded and prepared in hospital by a person totally unconcerned with affairs of police station and no evidence was available to the effect that Police Officer who recorded statement/dying declaration of deceased had any friendly connection with complainant side or was hostile towards the accused‑‑‑Such document, though did not carry certificate from Doctor nor in the beginning it contained routine observation by police stating that injured was in senses, but such omission should .not detract evidentiary . value of dying declaration if Court was otherwise satisfied from the record and from circumstances leading to occurrence that there was no delay; that deceased could speak; that there. was no doubt about identity of accused; that no motive existed of a degree due to which deceased, while nearing his death would tell lie and that no element of prompting was involved‑‑­Capacity of injured to speak, would depend on nature of injuries suffered by ‑ him‑‑‑Evidence on record proved that when deceased (then injured) was received in hospital he could talk‑‑‑Prosecution witnesses had categorically stated that in their presence on arrival of police deceased had himself made report‑‑‑Witnesses were not even suggested that what they had stated was incorrect ‑‑‑F.I.R. was promptly recorded‑‑‑Occurrence had taken place in daylight, firing proceeded by command of .acquitted co‑accused, parties were co­-villagers‑‑‑No chance; in circumstances existed of misidentity regarding assailants by complainant‑‑‑Nothing could be brought on record to suggest that deceased might have been fired at by someone else and not the accused and absconding co‑accused‑‑‑Conviction recorded by Trial Court against accused would not require any interference.

(b) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 46‑‑‑‑Dying declaration‑‑‑Recording and evidentiary value of‑‑‑No doubt, in the present case, dying declaration neither. carried certificate from Doctor nor in the beginning it contained routine observation by police stating that injured was in senses, but such omission should not detract the evidentiary value of dying declaration if Court was otherwise satisfied from record and from circumstances leading to occurrence, firstly, that there was no delay; secondly that deceased could speak; ‑thirdly that there was no doubt about identity of. accused; fourthly . there was no motive of the degree‑ for which deceased while nearing his death would tell lie and fifthly that no element of prompting existed.

Sanaullah Khan Gandapur for Appellant.

Shaukat Hayat Khan Khakwani, Dy. A.‑G. for the State.

Dost Muhammad Khan for the Complainant

Date of hearing: 24th April, 2002

2002 P Cr. L J 1463

[Peshawar]

Before Abdur Rauf Khan Lughmani and Ejaz Afzal Khan, JJ

SAADULLAH JAN‑‑‑Appellant

versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No.40 with Murder Reference No.3 of 2001, decided on 17th April, 2002.

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Accused remained in custody of police for 5 days after his arrest‑‑‑Magistrate who recorded confessional statement of accused had admitted to have not mentioned that he disclosed his identity to accused‑‑‑Nothing was on record showing that Magistrate had put question about period of custody or that he disclosed his identity to accused‑‑‑Magistrate had not assured accused that in case accused did not make confession, he would not be remanded to police custody‑‑‑For safe administration of justice, confessional statement was ruled out from consideration‑‑‑Prosecution witnesses though were brothers of deceased, but mere relationship was not enough to discard their testimony because no previous blood feud enmity or ill‑will existed between accused and such witnesses so as to come out with a false charge of murder against accused‑‑‑One of prosecution witnesses stuck to his version given earlier in report and his such version could not be shattered in cross‑examination and other prosecution witness corroborated his testimony on all material aspects and nothing damaging could be brought out during cross‑examination‑‑‑One empty of .30 bore recovered from

(b) Ocular testimony consisting ' of P. Ws. 5 and 6 is not reliable being interested and close relatives of the deceased. The claim of production of pistol by the father of the appellant is fake and fictitious as the house was searched on the date of the arrest of the appellant and nothing was recovered and further Khan Zada was not produced in the witness‑box by the prosecution.

2002 P Cr. L J 1468

Before Tariq Pervez Khan and Qaim Jan Khan, JJ

MUHAMMAD SHAFIQ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Jail Criminal Appeal No.201 of 1999, heard on 28th March, 2002.

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

‑‑‑‑S. 9‑‑‑Appreciation of evidence‑‑‑Allegation against accused was that huge quantity of narcotic drugs was recovered from truck driven by him, but accused was not found in the truck and case against accused was registered on the basis of his driving licence recovered from the truck‑‑­No doubt huge quantity of narcotic substance had been recovered from the truck but because nobody was arrested at the time of stopping of truck and the only connecting evidence against accused was recovery of his driving licence from the truck, it was incumbent upon prosecution to have established that truck was actually entrusted to accused by some authorized officer describing date of entrustment and it should have also been proved that even on date of occurrence truck was not only possessed, but was also physically under the use of the accused‑‑­Prosecution witness had admitted in his cross‑examination that he did not know as to how long truck remained with accused‑‑‑No official witness had appeared to confirm entrustment of truck to the accused‑‑‑Defence evidence rang reasonably true‑‑‑Prosecution having failed to connect accused with the truck from which narcotics were allegedly recovered except the evidence that driving licence in the name of accused was found, conviction and sentence awarded to accused by Trial Court were set aside extending him benefit of doubt and accused was acquitted.

Noor Alam Khan for Appellant:

Khan Askar Afridi for the State.

Date of hearing: 28th March, 2002.

JUDGMENT

2002 P Cr. L J 1470

[Peshawar]

Before Ijazul Hassan, J

FEROZ SHAH‑‑‑Petitioner

versus

THE STATE-‑‑Respondent

Criminal Miscellaneous Application No.1584 of 2001, decided on 10th May, 2002.

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

‑‑‑‑S. 497‑‑‑Control of Narcotic Substances Act (XXV of 1997), S.9‑‑­Bail, grant of‑‑‑Persons allegedly involved in spreading narcotics in the society and tarnishing image of their country in comity of nations, were riot the kind of persons who were worthy of grant of any discretionary relief to them unless they could demonstrate that no reasonable grounds existed to believe that they were guilty of offences alleged against.

(b) Criminal trial‑‑‑

‑‑‑‑Police officials‑‑‑Witness‑‑‑Police officials were competent witnesses in eye of law and unless it could be demonstrated that police officials in question had any motive or reason to falsely implicate the accused, their testimony could not be discarded only because they happened to be employees of Police Department.

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

‑‑‑‑Ss. 497 & 103‑‑‑Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 25‑‑‑Bail, grant of‑‑‑Huge quantity of Charas had been recovered from motor car wherein accused was accompanying the driver/co-­accused‑‑‑Confessional statement of co‑accused, exonerating accused from commission of crime, could not be taken into account at bail stage‑‑‑Material available on record had to be sifted in order to establish whether prima facie accused could be connected with crime charged against him‑‑‑No detailed inquiry was to be' conducted by Court-‑­Contention of accused regarding non‑compliance of mandatory provisions of S.103, Cr.P.C., was without force because recovery had been made in terms of S.25 of Control of Narcotic Substances Act, 1997 which had excluded the applicability of S.103, Cr.P.C.‑‑‑Accused had failed to show any background of bitterness or ill‑will between him and police officials so as to prompt police to falsely implicate him in a case of that nature‑‑‑Claiming bail by accused on account of non‑availability of any report of Chemical Examiner regarding substance allegedly recovered from the vehicle in question, could not be considered a good ground for grant of bail‑‑‑Accused though was in custody ever since his arrest, but such a term of period would not qualify accused to be released on bail‑‑­Trial Court, in circumstances, had properly exercised discretion in refusing the bail to accused.

Riaz Ahmad v. The State 1988 MLD 1730; Muhammad Ashraf v. The State 2000 PCr.LJ 917; Gul Hassan Dero v. The State 2000 PCr.LJ 657; Nauroz Khan alias Tour v. The State 2000 PCr.L1 1222; Fazlur Rehman v. The State 2061 MLD 1922; Shadi Khan v. The State 2002 PCr.L1 320; Nazar Hussain v. The State 2002 PCr.LJ 440; Fida Jan v. The State 2001 SCMR 36; Shahid Raloch v. The State 1998 PCr.LJ 1628 and Muhammad. Ilyas v. The State 2000 MLD 1983 ref.

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

‑‑‑‑S. 497(2)‑‑‑Bail, grant of‑‑‑Further inquiry‑‑‑Question of‑‑‑Some scope though would exist for further inquiry qua guilt of accused in every criminal case, but on that consideration alone, bail could not be claimed by accused as a matter of right and in order to be released on bail it must be further shown that there were no reasonable grounds for believing that accused had committed offence alleged against him‑‑‑Mere possibility of further inquiry which existed almost in every criminal case, was no ground for treating the matter as one under subsection (2) of S.497,­Cr.P.C.

Asmatullah Khan v. Bazi Khan and another PLD 1988 SC 621: Najib Gul v. Khalid Khan and another 1989 SCM 99 and Mst. Resham Jan v. Abdur Rehman 1991 SCMR 1849 ref.

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

‑‑‑‑S. 497(1)(2)‑‑‑Refusal of bail‑‑‑Commencement of trial‑‑‑Further inquiry‑‑‑Bail was some times refused in criminal case if trial of such case had commenced, but such refusal would proceed on principle of practice and propriety‑‑‑Whenever a question of propriety was confronted with a question to right, right must prevail‑‑‑Commencement of a trial would. pose no insurmountable hurdle in way of bail provided accused person would succeed in making out a case of further inquiry into his guilt within meaning of subsection (2) of S.497, Cr.P.C.

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

‑‑‑S. 497(2)‑‑‑Grant of bail‑‑‑Principles of‑‑‑Further inquiry‑‑‑At bail granting stage material available on record was to be sifted through in order to establish whether prima facie accused could be connected to crime in question and hence no detailed inquiry was to be conducted by Court‑‑‑Tentative assessment of evidence in hand of prosecution would prima facie show that reasonable grounds were to .believe that accused had committed crime with which he was being charged and would not be entitled concession of bail by virtue of subsection (2) of 5.497, Cr.P.C

Noor Muhammad Khalil for Petitioner.

Tariq Khan Kakar for the State.

Date of hearing: 10th May, 2002.

2002 P Cr. L J 1476

[Peshawar]

Before Malik Hamid Saeed, J

WASAL KHAN‑‑‑Petitioner

Versus

INAYAT ULLAH and another‑‑‑Respondents

Criminal Miscellaneous for Quashment No.40 of 2002, decided on 13th,May, 2002.

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 145, 146 & 561‑A‑‑‑North‑West Frontier Province Tenancy Act (XXV of 1950), S.23‑‑‑Petition for quashing of order‑‑‑Petitioner/ accused was tenant under respondent/complainant over land in dispute under a proper lease, but on expiry of lease period, respondent without having recourse to law for ejectment of petitioner, filed a complaint against petitioner under S.145, Cr.P.C. before Magistrate which complaint was dismissed after recording evidence of the parties‑‑­Appellate Court on appeal though upheld order passed by Magistrate to the extent of rejection of complaint, but ordered attachment of suit property under S.146, Cr.P.C. till passing the order by a competent forum about actual possession of properties over. disputed land‑‑‑Order passed by Appellate Court was not sustainable because so ‑far as possession over suit property was concerned, petitioner was in possession of same within two months next before order passed by Magistrate and respondent had also admitted that fact‑‑‑Lease of petitioner though had expired; but, remedy for respondent was not in initiating proceedings against petitioner under 5.145, Cr.P.C. as proper course for ejectment of petitioner was, provided under S.23 , of North‑West Frontier Province Tenancy Act, 1950‑‑‑Order of Appellate Court with regard to attachment of land in dispute and auctioning of standing crops were quashed.

Gul Sadbar for Petitioner.

Saadullah Jandoli and Abdul Fayaz for Respondents.

Date of hearing: 10th May, 2002.

2002 P Cr. L J 1483

[Peshawar]

Before Ijaz‑ul‑Hassan, J

FAZAL NABI and another‑‑‑Petitioners

versus

SAHIBZADA and another‑‑‑Respondents

Criminal Miscellaneous Applications No.243 and 244 of 2002, decided on 24th May, 2002

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

‑‑‑‑S. 497(2)‑‑‑Penal Code (XLV of 1860), Ss.302/324‑‑‑Bail, grant of‑‑­Capital punishment‑‑‑Principles‑‑‑Benefit of further inquiry‑‑‑Bail in a case of capital punishment was granted or refused in the light of material placed before Court and unless Court would come to conclusion that no reasonable ground exited to believe that an applicant had committed an offence punishable with death or imprisonment for life, he would not be entitled to claim benefit of subsection (2) of S.497, Cr.P.C.‑‑‑Bail in non‑bailable cases was a matter falling within discretion of Court which had to be exercised with due care and caution on facts and circumstances of each case‑‑‑Accused charged with an offence punishable with death or imprisonment for life was not to be admitted to bail if reasonable grounds were found for believing that he had committed such an offence.

Mst. Maqsood Begum v. Muhammad Maroof 1998 PCr.LJ 56 and Manzoor v. The State PLD 1972 SC 81 ref.

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

‑‑‑‑S. 497‑‑‑Penal Code (XL'V of 1860), Ss.302/324/34‑‑‑Bail, grant of‑‑­Names of accused specifically transpired in promptly lodged report and they had been assigned a definite role in murder of deceased and attempted murder of prosecution witness‑‑‑Ocular account of incident furnished by eye‑witnesses coupled with medical evidence and circumstantial evidence had fully supported charge against accused‑‑‑In case of counter‑version rule followed was that if one party was granted bail, other two were entitled to bail, but that rule would be applicable in cases of genuine counter‑version‑‑‑Mere filing of cross‑cases against each other could not be a ground for grant of bail, unless element of genuineness was there‑‑‑Nothing was on file, in the present case, to show that cross‑case was ever filed at the instance of accused‑‑‑Plea of cross case, in circumstances; was not available to accused‑‑‑Plea of minority of one of accused also could not be considered at bail stage because sufficient material was on record to indicate that accused had specifically participated in firing which resulted in death of deceased and attempted murder of prosecution witness‑‑‑Plea of alibi and other pleas touching merits of case could not be discussed at bail stage, but could be adjudicated upon at time of trial‑‑‑Accused having been directly nominated in report for commission of offence, prima facie, no case for grant of bail had been made out‑‑‑Bail applications were dismissed.

Hassan Zafar v. The State 2001 PCr.LJ 1939; Jalal and another v. The State 2001 PCr.LJ 1355; Muhammad Mansha and others v. The State 1996 PCr.LJ 1981; Muhammad Sudheir v. The State 1998 MLD 1994; Zamir v. The State 2001 PCr.LJ 666; Sher Bahadar v. Haji Ghaffar Ali Khan and another 1999 PCr.LJ 403; Mumtaz Hussain v. The State 1999 SCMR 2248; Punhoon Lashari v. State 2001 PCr.LJ 926 and 2001 PCr.LJ 1483 ref.

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

‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Counter‑version‑‑‑Rule to be followed in case of counter-version was that if one party was granted bail the other party too was entitled to bail, but that rule would be applicable in cases of genuine counter‑version‑‑‑Mere filing of cross‑case against each other could not be a ground for grant of bail, unless an element of genuineness was there.

1992 SCMR 501 and 2001 PCr.LJ 1483 ref.

Khanzada Ajmal Zeb and Alam Zeb for Petitioners

Syed Wilayat Ali Shah and Mian Qamar Gul Kakakhel for Respondents.

Syed Asif Ali Shah for the State.

Date of hearing: 24th May, 2002.

2002 P Cr. L J 1487

[Peshawar]

Before Tariq Pervez Khan and Ijazul Hassan, JJ

Mst. BIBI SALIHA and another‑=‑Petitioner

versus

THE STATE and another‑‑‑Respondents

Criminal Revision No.9 of 2002, decided on 2nd May, 2002.

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

‑‑‑‑Ss. 10,11,17(c), 18 & 32‑‑‑Reference‑‑‑Confiscation of property‑‑­Accountability Court convicted accused and his property was ordered to be confiscated to the State as the same was held by "Benamidars" while the real owner was the accused‑‑‑Revision petition by the alleged Benamidars‑‑‑Benamidars being closely related to accused were arrayed during investigation, but were put in Column No.2 of Challan‑‑‑Court had not issued notice to Benamidars for their prosecution except that on the closure of prosecution evidence a show‑cause notice was issued to them under S. 17(c) of National Accountability Bureau Ordinance, 1999 to which they replied in writing and had put in their appearance through counsel ‑‑‑Benamidars having never been arrayed as accused and because prosecution evidence was not recorded in their presence, they had been prejudiced and could not be deprived of property owned by them in their right‑‑‑Trial Court should have allowed the Benamidars to adduce evidence in rebuttal of prosecution ‑‑‑Benamidars though ‑in reply to show­-cause notice had tendered explanation as to how the property in question was acquired and held by them, but their authorized counsel had stated that they did not want to adduce evidence in defence‑‑‑Where party had refused to take advantage of producing defence witnesses and had failed to request Trial Court in first instance for re‑examination of prosecution witnesses, he would riot be entitled to agitate any of his such grievance through revision petition.

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

‑‑‑‑Ss. 435/439‑‑‑Revisional jurisdiction, exercise of‑‑‑Where a party had refused to take advantage of producing defence witnesses and had failed to request Trial Court in first instance for re‑examination of prosecution witnesses, he would not be entitled to agitate any of his such grievance in revision.

Muhammad Alam and Ghulam Ali for Petitioners.

Malik larar Hussain for Respondents.

Date of hearing: 2nd May, 2002.

2002 P Cr. L J 1490

[Peshawar]

Before Tariq Pervez Khan and ljaz‑ul‑Hassan, JJ

JANA GUL ‑‑‑ Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 154 of 2001, decided on 30th May, 2002.

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

‑‑‑‑Ss. 9 & 25‑‑‑Criminal Procedure Code (V of 1898), 5.510‑‑­Appreciation of evidence‑‑‑Material on record had proved that accused was apprehended by police officer from Railway Platform and Charas weighing 1900 grams was recovered from a tin of ghee carried by accused‑‑‑Accused had failed to produce anything on record to prove that Charas was foisted upon him as he refused to oblige police officials‑‑­Prosecution witnesses had fully supported prosecution case on all material particulars and nothing substantially beneficial to the accused could be elicited from them‑‑‑Non‑compliance of mandatory provisions of S.103, Cr.P.C. was not fatal to the case because S.25 of Control of Narcotic Substances Act, 1997 had clearly excluded application of 5.103, Cr.P.C. to cases under Control of Narcotic Substances Act, 1997‑‑­Accused had objected that complainant police officer had combined in himself duties of complainant, Investigating Officer and witness to occurrence which had prejudiced interest of accused‑‑‑No legal prohibition existed for police official to be a complainant, a witness to commission of offence and also to be an Investigating Officer, so long as it did not, in any manner prejudice the accused‑‑‑Objections of accused that Chemical Examiner had not been examined and that prosecution had failed to show as to who incorporated "Murasila" into F.I.R. and who was assigned duty to take sample to Forensic Science Laboratory, were immaterial‑‑‑If author of the report had not formally been examined as a prosecution. witness, S.510, Cr.P.C. would make his report or opinion, per se, admissible without calling him formally to prove it‑‑‑Court in suitable cases, had power to examine Expert either of its own or on request of any party, if it felt so to meet the ends of justice‑‑‑Mere fact that prosecution had omitted to bring on record as to who had been entrusted with duty to take sample to Laboratory for opinion and report or who incorporate Murasila into report, by itself, was not fatal to prosecution case‑‑-Such omission was merely an irregularity and could not be treated as an illegality vitiating trial or making prosecution case doubtful‑‑‑Abandonment of one of marginal witness was also not fatal because law insisted on quality and not quantity of evidence‑‑‑Prosecution having succeeded to prove its case against accused beyond any shadow of doubt, appeal against judgment of Trial Court whereby accused was convicted and sentenced, was dismissed.

Noorul Haq v. The State 1992 SCMR 1451; Tariq Parvez v.. The State PLD 1995 SC 1345; Imran Saeed v. The State 2001 PCr.LJ 1365; Ijaz Khan and others v. The State and another 2001 YLR 2039; Khalil Ahmad v. The State PLJ 2001 Cr.C. Lahore 1312; Munawar Hussain and 2 others v. The State 1993 SCMR 785 and Muhammad Farooq Afridi v. The State 2002 PCr. LJ 196 ref.

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

‑‑‑‑Ss. 9 & 25‑‑‑Criminal Procedure Code (V of 1898), SAW‑‑­Applicability of S.103, Cr.P.C. to cases under Control of Narcotic Substances Act, 1997‑‑‑Provisions of S.25 of Control of Narcotic Substances Act, 1997 had clearly excluded application of S.103, Cr.P.C. to cases under Control of Narcotic Substances Act, 1997.

Fida Gul v. The State 2002 SCMR 36 and Shahid Baloch v. The State 1998.PCr.LJ 628 ref.

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

‑‑‑S. 510‑‑‑Control of Narcotic Substances Act, (XXV of 1997), Ss.9 & 25‑‑‑Report of Chemical Examiner‑‑‑Examination of author of report‑‑­Contention was that the Chemical Examiner had not been examined and prosecution had failed to show as to who incorporated `Murasila' into F. I. R. and who was assigned duty to take sample to Forensic Science Laboratory‑‑‑Contention was repelled because if author of the report had riot formally been examined as a prosecution witness, S.510, Cr.P.C. would make his report or opinion, per se admissible without calling him to formally prove it‑‑‑Court in suitable cases, had power to examine Expert either of its own .accord or on request of any party if it felt so, to meet ends of justice.

Shah Muhammad and 3 others v. The State 1980 PCr .J 257 and Muhammad Liaque v. The State 1985 PCr.LJ 671 ref.

Mir Rehman Khan for Appellant.

Hamid Farooq Durrani, Dy.A.‑G. for‑the State

Date of hearing: 30th May, 2002.

2002 P Cr. L J 1501

[Peshawar]

Before Ijaz‑ul‑Hassan, J

Mst. NISHAN BIBI‑‑‑Petitioner

versus

THE STATE and another‑‑‑Respondents

Criminal Revision No.95 of 2001, decided on 7th June, 2002.

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

‑‑‑‑S. 540‑‑‑Scope of S.540, Cr.P.C.‑‑‑Power of Court to summon material witnesses or examine persons present‑‑‑Section 540, Cr.P.C. conferred jurisdiction upon Court, rather in appropriate cases imposed a duty upon Courts for summoning witnesses who were not brought before the Court‑‑‑If it would come to knowledge of Court that statements of certain witnesses were necessary to lead towards truth .and to promote cause of justice in a particular case, Court could order production of such witnesses‑‑‑Court was duty bound to do justice to parties within ambit of law and if law had bestowed authority or discretion on Court, same must be exercised in judicial manner and for advancement of justice and not against it‑‑‑Administration of justice was primarily and essentially an obligation cast on Courts of law‑‑‑Section 540, Cr.P.C. was intended to enable Court to get at truth as ascertainment of truth was primary duty imposed upon a Judge and he was not absolved from attempting to perform that duty merely because of technicalities‑‑‑Court under S.540, Cr.P.C. had plenary powers for summoning a person as witness or re­examine any person already examined at any time of proceedings if such evidence appeared essential for just determination of controversy involved in the case.

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

‑‑‑‑S. 540‑‑‑Interpretation of S.540, Cr.P.C.‑‑‑Power of Court to summon material witness or examine person present‑‑‑Section 540, Cr.P.C. consists of two parts, first part has given discretionary power to summon or recall any person or witness mentioned in that part while the second part of the section imposes an obligation on Court to summon and examine or recall and re‑examine any such person mentioned in first part, if his evidence appeared essential to just decision of the case‑‑‑Section 540, Cr.P.C. gives vide discretionary power to a Court to examine any witness as a Court witness at any stage of case‑‑‑Power conferred by S.540, Cr. P.C. can be exercised at‑any stage of inquiry or trial‑‑‑Mere delay could riot be taken as a hurdle for refusing to exercise power under S.540, Cr.P.C., if it was otherwise considered essential for just decision of case, but moving an application under that section for calling witness as Court witnesses would not be warranted when it was an after thought‑‑‑Court must avoid filling of gaps left by either party, but it must strive to reach the just decision of case.

Pervaiz Ahmad v. Munir Ahmad and another 1998 SCMR 326; Muhammad Rauf Anwar v. The State and others 1992 PCr.LJ 729; Painda Gul and another v. The State and another 1987 SCMR 886; Syed Ali Nawaz Shah Gardezi v. Lt.‑Col. Muhammad Yusuf Khan PLD 1962 (W.P.) Lah. 558; Malik Muhammad Anwar v. The State PLD 1991 Kar. 351; Mst. Aamna Bibi v. Kashif‑ur‑Rehman and another 1995 PCr.LJ 730 and The State v. Muhammad Yaqoob and others 2001 SCMR 308 ref.

Mehboob Khan for Petitioner

Lal Jan Khattak for Respondents.

Date of hearing: 10th May, 2002.

2002 P Cr. L J 1506

[Peshawar]

Before Tariq Parvez Khan and ljaz‑ul‑Hassan, JJ

RAHIM DAD‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 154 of 1999, decided on 6th June, 2002.

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

‑‑‑‑Ss. 9, 20 & 25‑‑‑Criminal Procedure Code (V of 1898), S.103‑‑­Appreciation of evidence‑‑‑Contention of accused was that provisions of S.103, Cr.P.C. had seriously been violated in the case on account of non‑association of private persons to witness .recovery‑‑‑Contention was repelled, firstly for the reason that provisions of 5.103, Cr.P.C. had been excluded under provisions of S.25 of Control of Narcotic Substances Act, 1997 and that provisions of S.20 of Control of Narcotic Substances Act, 1997 were directory in nature‑‑‑Non‑compliance of S.103, Cr.P.C. could not be considered as a strong ground for holding trial of accused as bad in eyes of law‑‑‑Main aim and object of enacting S.103, Cr.P.C. was to ensure that search and recovery was conducted honestly and fairly and to exclude any possibility of concoction and transgression‑‑‑Section 103, Cr.P.C. was never meant to disbelieve statements of official witnesses under any circumstance.

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

‑‑‑‑Ss. 9, 20 & 25‑‑‑Witness‑‑‑Official witnesses were as good as private witnesses‑‑‑Report of Chemical Examiner was complete in all respects and clearly indicated that material sent was found opium and Charas‑‑‑Accused had contended that he had no conscious knowledge of narcotics recovered from secret cavities of truck loaded with bricks‑‑­Contention was repelled as mere assertion of accused was of no avail as it was difficult to believe that huge quantity of narcotics was concealed in truck and driver remained ignorant of the same‑‑‑Accused was not able to point out any discrepancy or flaw in prosecution case so as to render judgment against him as not sustainable‑ ‑‑Contention of accused that as complainant had combined in himself functions of Investigating Officer as well as witness, it had seriously prejudiced his case was also repelled because no legal prohibition existed for a police official to be a complainant, a witness to commission of offence and also to be an Investigating Officer so far as it did not prejudice the accused---- Prosecution had successfully proved its case against accused on material particulars its evidence was consistent, confidence‑inspiring and not discrepant, creating dent in its case‑‑‑Nothing had been brought on record that accused had no knowledge about illicit substance and he had no concern with it‑‑‑Defence plea put to prosecution witnesses at face of it appeared to be highly misconceived and even improbable in facts and circumstances of case‑‑‑Trial Court having rightly appreciated evidence on record, conviction and sentence, awarded to accused by Trial Court were maintained.

Zahoor Ahmad Awan and another v. The State 1997 SCMR 543; Khalid Sultan v. The State 1985 PCr.LJ 241; State through Advocate­General, Sindh v. Bashir and others PLD 1997 SC 408; Munawar Hussain and 2 others v. The State 1993 SCMR 785 and Muhammad Farooq Afridi v. The State 2002 PCr.LJ 196 ref.

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

‑‑‑‑S. 103‑‑‑Search proceedings‑‑‑Object of S.103, Cr.P.C.‑‑‑Main aim and object of enacting 5.103. Cr.P.C. was to ensure that search and recovery was conducted honestly and fairly and to exclude any possibility of concoction and transgression‑‑‑Section 103, Cr.P.C. never meant to disbelieve statements of official witnesses under any circumstance Official witnesses were as good as private witnesses.

Fida Jan v. The State 2001 SCMR 36 ref.

(d) Criminal trial‑‑‑

Witness‑‑‑Official witness was as good as private witness.

Amir Khattak for Appellant.

Khan Asfar Khan for the State.

Date of hearing: 6th June, 2002.

2002 P Cr. L J 1513

[Peshawar]

Before Tariq Parvez and Ijaz‑ul‑Hassan, JJ

KHAN BADSHAH‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.364 of 1999, decided on 22nd May, 2002

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S.302/34‑‑‑Benefit of doubt‑‑‑Conviction of accused must be founded on unimpeachable evidence and certainty of guilt of accused‑‑‑Any doubt that would arise in prosecution case must be resolved in favour, of accused‑‑‑Imperative for Court to examine and consider all relevant proceedings and facts leading to occurrence so as to arrive at correct conclusion‑‑‑For giving benefit of doubt, it was not necessary that there should be many circumstances creating doubts‑‑‑If alone circumstance created reasonable doubt in prudent mind about guilt of accused, accused would be entitled to its benefit not as a matter of grace and concession, but as of right.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34 Interested witness ‑‑‑Relationship of witness with victim‑‑­Complainant and prosecution witness though were close relations of deceased, but law of prudence required to assess relevant factors, background of circumstances, type of accusations, quality of statements and unimpeachable nature of statements given by eye‑witnesses and thereby to ascertain whether version brought forth was appealing and confidence‑inspiring and should be relied upon‑‑‑Evidence furnished by independent witnesses related to victim could not be discarded merely for reason that witness had relationship with the deceased‑‑‑Mere friendship or relationship would not make a witness an interested one and testimony of such a witness, who otherwise seemed to be a truthful witness, could not be rejected on such ground‑‑‑Interested witness was one who had a motive for falsely implicating an accused, was a partisan and was involved in matter against accused‑‑‑Friendship or relationship with deceased would not be sufficient to discard a witness particularly where there was no motive to falsely involve accused.

Nazir v. The State PLD 1962 SC 269; Khalil Ahmad v. The State 1976 SCMR 161 and Iqbal alias Bhala and 2 others v. The State 1994 SCMR 1 ref.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Appreciation of evidence‑‑‑Interested witness‑‑­Complainant and two other prosecution witnesses stood test of searching cross‑examination and their testimony on salient features of incident was consistent and materially corroborated each other‑‑‑Version of prosecution witnesses could not be impeached or dislodged despite lengthy cross‑examination and no improvement, discrepancies and contradictions existed in their statement and what was pointed out by defence counsel, Was insignificant and created no dent in prosecution case‑‑‑Evidence, in criminal administration of justice furnished by independent witnesses related to victim could not be discarded merely for reason that witness had relationship with deceased ‑‑Mere friendship or relationship, would not make a witness an interested one and testimony of

(d) Penal Code (XLV of 1860)

‑‑‑‑S. 302/34‑‑‑Abscondence of accused‑‑‑Mere abscondence of accused, though could not be considered enough to base conviction of accused, but onus to prove his abscondence was on accused ‑‑‑Abscondence of accused was a strong corroborative piece of evidence and a pointer towards his guilt.

(e) Criminal trial ---

‑‑‑‑Evidence‑‑‑Appreciation of‑‑‑Quality of evidence and not quantity of evidence which matters and persuades a Court of law to convict or acquit accused.

Isaac Ali Qazi for Appellant.

Tariq Javed State Counsel for the State.

2002 P Cr. L J 1680

[Peshawar]

Before Tariq Parvez Khan, J

GUL SAID‑‑‑Petitioner

versus

THE STATE‑‑‑Respondent

Criminal Miscellaneous Nos.306, 351, 435, 438 and 395 of 2002, decided on 20th May, 2002.

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

‑‑‑‑Ss. 51 & 9‑‑‑Criminal Procedure Code (V of 1898), Ss.497 & 496‑‑­Bail, grant of‑‑‑Jurisdiction‑‑‑All bail applications for an offence punishable under Control of Narcotic Substances Act, 1997 were bound to be filed, argued and decided within parameters and scope of S.51 of Control of Narcotic Substances Act, 1997‑‑‑Any reference to S.497, Cr.P.C., be with regard to minority, fair sex of accused or reasonable grounds to believe that there was room for further inquiry, were not relevant‑‑‑Under S.51 of Control of Narcotic Substances Act, 1997 no bail could be granted in respect of offences committed under the Act and provisions of Ss.496 & 497 had expressly been excluded‑‑‑An elbow room, however, was left at the discretion of Court under subsection (2) of S.51 of Control of Narcotic Substances Act, 1997 where statute had laid down that bail should not normally be granted unless Court was of the opinion that it was a fit case for grant of bail‑‑‑"Fit case for grant of bail" would depend on facts of an individual case‑‑‑Power to refuse or allow bail was not to be exercised by Court under S.497, Cr.P.C., but under S.51 of Control of Narcotic Substances Act, 1997.

(b) Interpretation of statutes‑‑‑

‑‑‑‑ Where there was a general law and the special law on the subject, then provisions of special law would prevail.

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

‑‑‑‑Ss. 51 & 9‑‑‑Criminal Procedure Code (V of 1898), S.497(2)‑‑‑Bail, grant of‑‑‑"Fit case for grant of bail"‑‑‑Further inquiry‑‑‑Phrase "it is a tit case for grant of bail" as occurring in subsection (2) of S.51 of Control of Narcotic Substances Act, 1997, could be taken as paramateria to language used in S.497(2), Cr.P.C.‑‑‑Under provisions of S.497(2), Cr.P.C. if no reasonable ground existed to believe that accused was guilty of offence punishable with death, imprisonment for life or ten years, and there was sufficient scope for further inquiry, accused would be entitled to bail‑‑‑Control of Narcotic Substances Act, 1997 which was a special law, Legislature in the statute had used words "a fit case for grant of bail" which would require rather more favourable circumstances appearing on record in favour of accused to get entitlement to concession of bail.

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

‑‑‑‑Preamble, Ss. 51 & 9‑‑‑Bail, grant of‑‑‑Legal and technical objections raised by accused‑‑‑To meet legal or technical objections of accused regarding power of a police officer about arrest or seizure or search, the application of statute prescribing lesser sentence, the sending of samples for chemical analysis and its quantity, a reference could be made to the Preamble of Control of Narcotic Substances Act, 1997‑‑‑According to Preamble, the Act was enacted because Legislature found it expedient to consolidate laws relating to narcotic drugs and for also to regulate treatment and rehabilitation of narcotic addicts.

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

‑‑‑‑Ss. 6, 7, 8, 9, 20, 21 & 47‑‑‑Criminal Procedure Code (V of 1898), Ss.59 & 154‑‑‑Arrest of accused who committed a non‑bailable and cognizable offence‑‑‑Under S.59, Cr.P.C. even a private person could arrest an accused who committed a non‑bailable and cognizable offence in his sight or was a proclaimed offender‑‑‑By virtue of S.47 of Control of Narcotic Substances Act, 1997, provisions of Cr.P.C. were made applicable to proceedings under that Act except as otherwise provided by the Act itself‑‑‑If there was no express exclusion of S.59, Cr.P.C. and offence under Ss.6, 7, 8 & 9 of Control of Narcotic Substances Act, 1997 being cognizable, arrest made by a person below the rank of Sub­-Inspector could not be held violative of S.20 of Control of Narcotic Substances Act, 1997‑‑‑Even if arrest, seizure and search made by person below rank of Police Sub‑Inspector, were held to be violative of S.21 of Control of Narcotic Substances Act, 1997, but requirement of S.154, Cr.P.C. whereunder F.I.Rs. were recorded, were met, did not preclude any person from reporting offence to Inspector of Police if it related to commission of cognizable offence, meaning thereby that any person could be competent complainant regarding an offence under Control of Narcotic Substances Act, 1997, of course, subject to investigation by Authority/ Officer competent to investigate‑‑‑Legality of search, seizure or arrest at bail stage would not be considered because bail applications were decided on basis of material available on record.

Nasrullah v. State PLD 2001 Pesh. 152 ref.

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

‑‑‑‑Ss. 9 & 36‑‑‑Sending sample for chemical analysis‑‑‑Provisions of S.36 of Control of Narcotic Substances Act, .1997 required that sample of narcotic drugs would be tested by Government Analyst‑‑‑Where statute had itself used word `sample' it was obvious that sample was always part of total and it would not require that whole quantity should be tested.

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

‑‑‑‑Ss. 9, 51 & 74‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4‑‑‑Criminal Procedure Code (V of 1898), S.497‑‑‑Bail, grant of‑‑‑Offence falling under two different definitions of two different statutes‑‑‑Contention that where offence committed fell under two different definitions of two different statutes, one which prescribed lesser sentence should be applied while entertaining bail application, was repelled in view of provisions of S.74 of Control of Narcotic Substances Act, 1997‑‑‑Otherwise too there was no statutory provision whereunder a Curt was bound to keep in view a paramateria statute on subject providing lesser sentence‑‑‑Proposition that Court should not keep in view maximum punishment prescribed for offence,. but should consider sentence which was likely to be awarded, was also not a legal requirement because on principles if one would look back under 5.497, Cr.P.C. which contained prohibitory clause therein, was with regard to punishment prescribed and not punishment likely to .be awarded‑‑‑Huge quantity of narcotic drugs having been recovered, prima facie, case against accused was not covered by S.51(2) of Control of Narcotic Substances Act, 1997‑‑‑Applications for grant of bail were dismissed.

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

----Ss. 9 & 51‑ Criminal Procedure Code (V of 1898), S.497‑‑‑Bail, grant of‑‑‑Provisions of S.497, Cr.P.C. being inapplicable and bail applications under Control of Narcotic Substances Act, 1997 being to be heard, entertained and decided on parameter of provisions as given in S.51 of Control of Narcotic Substances Act, 1997, contention that accused was under age or was a female, would not be relevant for purpose of bail under Control of Narcotic Substances Act, 1997.

Nadir Ali Khan for Petitioner.

Malik Ahmad Jami, Dy.A.‑G., Peshawar for the State.

Date of hearing: 20th May, 2002.

2002 P Cr. L J 1703

[Peshawar]

Before Mian Shakirullah Jan and Talaat Qayum Qureshi, JJ

DILAWAR and another‑‑‑Petitioners

Versus

POLITICAL AGENT, KHYBER AGENCY and 3 others‑‑‑Respondents

Writ Petition No.537 of 2001, decided on 7th June, 2002.

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

‑‑‑‑S. 86‑A‑‑‑Frontier Crimes Regulation (III of 1901), S.8‑‑‑Constitution of Pakistan (1973), Arts.247(7) & 199‑‑‑Constitutional ‑petition‑‑­Maintainability‑‑‑Arrest of person from settled area and confining him in Tribal Area‑‑‑Political Tehsildar Khyber Agency at the instance and directions of Assistant Political Agent Khyber Agency arrested father of petitioner from village in Peshawar which was a Settled Area and took him to Tribal Territory of Khyber Agency and confined him there‑‑­Father of petitioner having not been released, petitioner, invoked Constitutional jurisdiction of High Court seeking declaration that action of Authorities whereby his father was arrested and confined was illegal and without jurisdiction‑‑‑Constitutional petition was resisted by Authorities contending that High Court lacked jurisdiction under Art. 247 of Constitution of Pakistan (1973) as money dispute between complainant and father of petitioner had arisen in Khyber Agency and father of petitioner was running business in Khyber Agency and in circumstances, there was no need to comply with provisions of S.86‑A, Cr.P.C. and that arrest or detention of father of petitioner by Authority was lawful‑‑‑Contention with regard to lack of jurisdiction of High Court was repelled; firstly it would be anomalous and absurd that while arm of an Authority in Tribal Area was long enough to reach a person residing outside Tribal Area, High Court was powerless to come to rescue of a person whose fundamental rights had been flagrantly violated in its territorial jurisdiction; secondly, if Political Authorities had no jurisdiction in the matter and while usurping powers of ordinary civil and criminal Courts compelled a person to submit to their jurisdiction which did not vest in them, High Court would not be helpless to interfere; thirdly, when parties belong to settled area and dispute, if any, for business transaction having taken place in settled area, jurisdiction of High Court would not be ousted and fourthly, when it was brought to the notice of the Court that a citizen of the State was not being dealt with in accordance with law, it was duty of the Court to ensure that a citizen residing within territorial jurisdiction of Court was dealt with in accordance with law and not otherwise‑‑‑High Court, in circumstances had jurisdiction in the matter.

Haji Ghulam Sarwar v. Pir Akbar Din 2000 MLD 1643; Piao Gul v. The State PLD 1960 SC (Pak.) 307; Sar Khan v. The State PLD 1967 SC 149; Superintendent, Land Customs Torkham (Khyber Agency) v. Zewar Khan and 2 others PLD 1969 SC 489; Abdur Rehman and others v. The State PLD 1971 Pesh. 61; Malik Noor Badshah v. Deputy Commissioner Kohat PLD 1980 Pesh. 265; Muhammad Sadiq and others v. Government of Pakistan 1981 SCMR 1022 and Nabi Bakhsh and others v. The State PLD 1991 Pesh. 10 ref.

(b) Frontier Crimes Regulation (III of 1901)‑‑‑

‑‑‑‑S. 8‑‑‑Jurisdicticn, exercise of‑‑‑Scope‑‑‑In order to assume jurisdiction under Frontier Crime Regulation, 1901, it was requirement of S.8 of Frontier Crimes Regulation, 1901 that either or any of the parties should belong to a frontier tribe .and that dispute involved was likely to lead to bloodshed or disturbance of peace‑‑‑Even if one of the parties belonged to Tribal area, if dispute was of civil nature and business transaction had taken place in settled area and nothing was done by the parties in tribal area, recourse should be had to normal Civil Courts within whose territorial jurisdiction cause of action had accrued‑‑‑If a crime was committed in settled area, a person guilty of offence could not be picked up/arrested from Settled Area and tried by Political Authorities under Frontier Crimes Regulation, 1901.

Mst. Shaheen Rafi v. Khanzada and 3 others 1989 CLC 2049 and Muhammad Siddiq and others v. Government of Pakistan and others 1981 SCMR 1022 ref.

Muhammad Khurshid Khan and Raza Khan Muhammad for Petitioners.

Iqbal Khan Durrani for Respondents.

Date of hearing: 7th June, 2001.

2002 P Cr. L J 1785

[Peshawar]

Before Malik Hamid Saeed and Ijaz‑ul‑Hassan, JJ

ALIMDAD alias KHAN‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.365 of 1999 and Murder Reference No.3 of 2000, decided on 2nd May, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/337‑F/337‑T/34‑‑‑Appreciation of evidence‑‑‑ Benefit of doubt, grant of‑‑‑Conviction ‑ of accused must be founded on unimpeachable evidence and certainty of guilt and any doubt that would arise in prosecution case, must be resolved in favour of accused‑‑­Imperative for Court to examine and consider all ,relevant preceding and leading facts to occurrence, so as to arrive at a correct conclusion‑‑‑For giving benefit of doubt, it was not necessary that there should be many circumstances creating doubts‑‑‑If a sole circumstance had created reasonable doubt in prudent mind about guilt of accused then accused would be entitled to benefit not as a matter of grace and concession, but as a right.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/337‑F/337‑T/34‑‑‑Appreciation of evidence‑‑‑Principle of‑‑‑If a witness was trustworthy and reliable then conviction could safely be based on his evidence, but if he was unreliable witness then it could not be utilized for purpose of passing conviction against accused‑‑‑If witness had given partially reliable and partially unreliable evidence, then applying device of sifting grain from chaff and seeking independent corroboration from other reliable evidence on material particulars, conviction could be based on same‑‑‑Court, in order to determine the issue without departure from principles of justice had to decide first as to which category the ocular testimony of a witness fell.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/337‑F(iii)/337‑T/34‑‑‑Appreciation of evidence‑‑‑One of eye‑witnesses had also sustained injuries on his person during occurrence and both eye‑witnesses had corroborated each other on each material point without any significant contradiction‑‑‑Said witnesses were subjected to lengthy cross‑examination, but nothing could be elicited to shatter their testimony and some minor discrepancies in their evidence were not sufficient to label them as completely untruthful witnesses since their evidence had received corroboration from medical evidence, motive and recoveries from spot‑‑‑Nothing had been pointed out to discard testimony of those witnesses‑‑‑Said witnesses though were closely related to the complainant party, but in criminal administration of justice evidence furnished by independent witness related to victim could not be discarded merely for relationship of witnesses with deceased‑‑­Occurrence having taken place in front of prosecution witness, his presence at spot could not be doubted and he had no reason to falsely implicate accused‑‑‑No malice had been attributed to Investigating Officer for sending recovered articles to Expert with delay nor defence had alleged substitution of crime weapons and empties‑‑‑Parties were already known to each other and a bulb of 100 watt was recovered from house of prosecution witness which was shedding light at relevant time‑‑­Identification of accused in circumstances could not be doubted‑‑‑No discrepancy had been pointed out between ocular testimony and medical evidence‑‑‑Motive stood proved from material on record‑‑‑Plea of innocence taken by accused was not supported by any direct or circumstantial evidence available on record‑‑‑Accused, in circumstances had rightly been convicted for committing Qatl‑i‑Amd of deceased‑‑­Three other persons were also charged in the F.I.R. and it was not ascertainable as to whose fire shot proved fatal‑‑‑Maintaining conviction of accused, sentence of death awarded to him by Trial Court was reduced to imprisonment for life, in circumstances.

Saee and others v. The State 1984 SCMR 1069; Mst. Shamim Akhtar v. Fiaz Akhtar and 2 others PLD 1992 SC 211; Muhammad Younus Khan v. The State 1992 SCMR 545; Rab Rakhio anti 2 others v. The State 1992 SCMR 793; Allah Dad and another v. The State 1995 SCMR 142; Sardar Khan and 3 others v. The State 1998 SCMR 1823; Nisar Hussain v. The State PLD 1964 (W.P.) Pesh. 59; Muhammad Shaft and another v. The State PLD 1968 Lah. 869; Muhammad Ashraf v. The State 1975 PCr.LJ 787; Mushtaq Ahmad and others v. The State PLD 1978 Lah. 507; Muhammad Fiaz v. The State PLD 1993 Pesh. 138; Muhammad Rafique v. The State 2000 MLD 1766; Sikandar and 2 others v. The State PLD 1981 SC 477; Wazir v. The State PLD 1960 Kar. 676; Noor Alam v. The State PLD 1978 SC 137 ref.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/337‑F/337‑T/34‑‑‑Appreciation of evidence‑‑‑Evidence furnished by independent witness related to victim could not be discarded merely for reason that witness had relationship with deceased.

(e) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/337‑F/337‑T/34‑‑‑Appreciation of evidence‑‑‑Sending recovered articles to Expert with delay‑‑‑Procedural defects and irregularities‑‑‑Effect‑‑‑Sending of recovered articles to Expert with delay could only be termed fatal to prosecution case if defence had been able to establish malice on part of police or that empties had been substituted to match crime weapon‑‑‑If dispatch was found to have been delayed, said act on part of Investigating Officer could be termed as an irregularity committed during course of investigation‑‑‑Procedural defects and irregularities and some times even illegalities committed during course of investigation, would not demolish prosecution case nor would vitiate trial.

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

‑‑‑‑Ss. 154 & 156‑‑‑First Information Report‑‑‑Object of‑‑‑Primary object of F.I.R. under S.154 Cr.P.C. was to convey information about commission of a cognizable offence which a Police Officer was competent to investigate as contemplated under S.156, Cr.P.C.‑‑‑F.I.R. was meant to set in motion Investigating Agency‑‑‑Minute details about incident were not necessarily to be given in F.I.R. and F.I.R. could not be ruled out of consideration merely on account of omission of minor fact.

(g) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 302/324/337‑F/337‑T/34‑‑‑Appreciation of evidence‑‑‑Quality and not quantity of evidence persuade the Court of law to convict or acquit accused.

Barrister Zahoorul Haq for Appellant.

Muhammad Tariq Javed, Dy.A.‑G. for the State.

Barrister Masood Kausar for the Complainant.

Date of hearing: 7th March, 2002.

2002 P Cr. L J 1798

[Peshawar]

Before Tariq Parvez Khan and Muhammad Qaim Jan Khan, JJ

JAVED KHAN‑‑‑Appellant.

versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 17 of 2000, decided on 12th June, 2002.

(a) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 46‑‑‑Police Rules, 1934, Rr.25 & 21‑‑‑Dying declaration‑‑­Recording of dying declaration is not required to be in a particular form and it can be recorded in any manner by any person and can be even oral‑‑‑Procedure as prescribed under Rr.25 & 21 of the Police Rules, 1934 is only directory and not mandatory and is generally required to be followed by the police and it is not a mandate of law but a requirement of prudence‑‑‑Rules 25 & 21 of the Police Rules; 1934 do not make the dying declaration inadmissible if not followed‑‑‑Article 46 of the Qanun­-e‑Shahadat, 1984, is the substantive law on the subject which makes a statement made by a person regarding cause of his death or circumstances relating to cause of his death as relevant and admissible.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.46‑‑‑Dying declaration‑‑‑Imminent apprehension of death is not necessary under the law for an injured person to make his statement as a dying declaration‑‑­Any statement made by a person regarding circumstances leading to his death would be a dying declaration.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.46‑‑‑Dying declaration‑‑‑Evidentiary value‑‑‑Relevant considerations for determining the evidentiary value of a dying declaration are whether the deceased, then injured, was capable of making a statement; that whether he did make a statement orally or it was recorded by some one, that whether the statement made by him was corroborated by independent evidence if it seemed to be either tutored or prompted or some background of hostility existed between him and the accused and whether the dying statement rang true keeping in view the motive, the circumstantial evidence like the recoveries and the medical evidence etc.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.46 ‑‑‑ Appreciation of evidence‑‑‑Dying declaration made by the deceased in an injured condition was wrongly held to the inadmissible in evidence by the Trial Court which had been promptly made by him having no animosity against the accused‑‑‑Accused had been named as one of the culprits with the role of firing‑‑‑Deceased had sustained three fire‑arm wounds on his person and when received in the hospital he was in his full senses and could talk‑‑‑Dying declaration was a straight narration of facts which was supported by incriminating recoveries‑‑‑Venue of occurrence was also confirmed by the dying declaration‑‑‑Firing on the deceased had been admitted by the accused in his judicial confession although in different circumstances which had further corroborated the dying declaration‑‑‑Conviction and sentence of accused were upheld in circumstances.

Dost Muhammad Khan for Appellant.

Shaukat Hayat Khakwani, Dy.A.‑G. for the State.

Zaffar Abbas Zaidi for the Complainant.

Date of hearing: 12th June, 2002.

2002 P Cr. L J 1810

[Peshawar]

Before Nasirul Mulk and Talaat Qayum Qureshi, JJ

FARID GUL‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos. 190, 194 and Writ Petition No. 1342 of 2000, decided on 9th May, 2002.

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

‑‑‑‑Ss. 9(c) & 9(b)‑‑‑Appreciation of evidence‑‑‑Accused had been arrested from the spot while travelling in the motor car from which the narcotics were recovered‑‑‑Recovery had been witnessed by a police official who in view of S.25 of the Control of Narcotic Substances Act, 1997, which excludes application of S.103, Cr.P.C. from search under he said Act, was a competent witness to the search and the recovery proceedings‑‑‑Sample sent to the Laboratory was found to be of "Charas" after chemical examination‑‑‑Out of 45 packets each containing one Kg. of Charas, admittedly sample of 4 grams was taken from only one packet‑‑‑Culpability of the accused could, therefore, only be regarding one packet from which the sample was taken‑‑‑Case of accused, thus, fell within the, ambit of S.9(b) of the Control of Narcotic Substances Act, 1997‑‑‑Conviction of accused under S.9(c) was consequently altered to S.9(b) of the said Act and their sentence was reduced accordingly.

Muhammad Shafi v. The Crown PLD 1949 Lah. 175; Muhammad Ashraf v. The State PLD 1959 (W.P.) Pesh. 176; Rab Nawaz v. The State 1999 YLR 807; Anoud Power Generation Ltd. v. Federation of Pakistan PLD 2001 SC 340; H. Nawab Din v. The State PLD 1996 Lah. 304 and Gharibullah v. The State Criminal Appeal No. 188 of 2000 ref.

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

‑‑‑‑S. 9(b)‑‑‑Culpability of accused‑‑‑Where the sample from only one of the many packets recovered is sent to the Laboratory and the result is positive, the accused can be found guilty only as regards that packet.

Khan for Appellant (in Criminal Appeal No. 190 of 2000).

Noor Alam Khan for Appellant (in Criminal Appeal No. 194 of 2000).

Jehanzeb Rahim Khan, A.‑G. for the State (in both the Criminal Appeals).

Date of hearing: 24th April, 2002.

2002 P Cr. L J 1914

[Peshawar]

Before Tariq Parvez and Ijaz‑ul‑Hassan, JJ

MIR MAT KHAN alias MATOKAI‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.261 of 1999, decided on 25th June, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Benefit of doubt‑‑‑Prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw conclusion whether the prosecution had succeeded in establishing accusation against the accused or otherwise and if it comes to the conclusion that the charges so imputed against the accused had not been proved beyond reasonable doubt then the accused becomes entitled for his release on getting benefit of doubt in the prosecution case.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Claim of eye‑witnesses having seen the occurrence stood belied by a host of circumstances who were found neither present on the spot at the relevant time nor to have seen the occurrence‑‑‑Had the eye‑witnesses been present at the scene of occurrence they might not have been spared by the accused in order to create evidence‑‑‑Accused seemed to have been charged on suspicion which could not take the place of legal proof‑‑‑Eye‑witnesses were not only closely related to the deceased and inimically disposed towards the accused, but were chance witnesses and could not be believed without independent corroboration which was not available‑‑‑Prosecution had failed to establish the specific motive attributed to the accused‑‑­Abscondence of accused was meaningless because it could neither remove the defects of the oral evidence, nor was by itself sufficient to bring home guilt to the accused‑‑‑Accused was acquitted in circumstances.

Javed Sheikh v. The State 1985 SCMR 153; Javed lqbal v. The State 1998 SCMR 1539; Tariq Parvez v. The State 1995 SCMR 1345; State v. Iftikhar 2002 MLD 347; Nasir Khan v. The State 2000 SCMR 130; Haq Nawaz and others v. The State and others 2000 SCMR 785; Taj Ali Khan v. The State 1999 SCMR 2444 and Muhammad Ilyas and others v. The State 2000 NLR 340 ref.

(c) Criminal trial‑‑‑

‑‑‑‑Interested evidence‑‑‑Interested evidence is not necessarily unreliable evidence and relationship by itself is not a valid ground for rejecting. sworn testimony, nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction, but it is equally trite that in cases where the rival parties are found to have deep-­rooted enmity and they have reasons for false implication, the Court insists for independent corroboration.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Abscondence of accused ‑‑‑Significance‑‑‑Abscondence alone cannot be a substitute for real evidence because people do abscond though falsely charged in order to save themselves from agony of protracted trial.

Asghar Khan for Appellant.

Akhtar Naveed, A.A.‑G. for the State.

Lal Jan Khattak for the Complainant.

Date of hearing: 25th June, 2002.

2002 P Cr. L J 1929

[Peshawar]

Before Malik Hamid Saeed, J

JEHANZEB‑‑‑Applicant

Versus

THE STATE and another‑‑‑Respondents

Criminal Miscellaneous Applications Nos. 197, 199, 201, 203, 205, 207, 209 and 211 of 1999, decided on 10th June, 2002.

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

‑‑‑‑S. 241‑A‑‑‑Supply of copies of statements etc. to the accused‑‑‑Provisions contained in S.241‑A, Cr.P.C. are not of a mandatory nature and its non‑compliance will be of no consequence unless its breach is shown to have caused sufficient prejudice to an accused in his trial.

1991 PCr. LJ 749 ref.

(b) Forests Act (XVI of 1927)---

‑‑‑‑Ss. 5, 32, 33 & 55‑‑‑Criminal Procedure Code (V of 1898), Ss.241-­A, 242, 243 & 561‑A‑‑‑Quashing of judgments‑‑‑Accused had admitted their guilt in their statements recorded under S.243, Cr.P.C.‑‑‑No prejudice, therefore, was caused to the accused due to non‑compliance of the requirements of S.241‑A, Cr.P.C. by the Trial Court particularly when the accused had themselves stated that they did not want to be supplied with the copies of the evidence‑‑‑Accused had admitted their guilt and had not only thumb‑impressed their statements .made in that behalf, but had also .thumb‑impressed the formal charges framed against them‑‑‑Trial Court, thus, had fully complied with the requirements of law and no prejudice had been caused to the accused‑‑‑No inducement, threat or promise for showing some leniency to the accused having been disclosed by the statements made by them, the same had been rightly relied upon by the Trial Court‑‑‑Petitions for quashing the impugned judgments were consequently dismissed‑‑‑Sentences of imprisonment awarded to accused were, however, reduced to‑the period already undergone by them in Jail as sentences of fine and payment of compensation had also been imposed upon them‑‑‑Petitions were disposed of accordingly.

1991 PCr. LJ 749 ref.

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

‑‑‑‑S. 243‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art.37‑‑‑Conviction on admission of truth of accusation‑‑‑When an accused pleads guilty, then Trial Court is under no obligation to issue show‑cause notice to him as to why he should not be convicted on the basis of his plea of being guilty‑‑­Admission recorded by an accused under S.243, Cr.P.C. is virtually a confession within the meaning of Art. 37 of the Qanun‑e‑Shahadat, 1984 and cannot be rendered as not reliable unless it is shown that the same is the result of inducement or promise.

Ghulam Naqashband Khan for Petitioner.

Atif Ali Khan for the State.

Date of hearing: 10th June, 2002.

2002 P Cr. L J 1946

[Peshawar]

Before Tariq Parvez and Ijaz‑ul‑Hassan, JJ

SHAUKAT REHMAN alias JERNAIL‑‑‑Appellant

Versus

RAHIM NOOR and another‑‑‑Respondents

Criminal Appeals Nos.493 of 2000, 18 of 2001 and Murder Reference No.39 of 2000, decided on 18th June, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation, of evidence‑‑‑Sentence reduction in‑‑‑Five brothers had been charged in the case and assigned the role of firing culminating into the murder of the deceased‑‑‑Accused was directly nominated in the promptly lodged report for having participated in the firing‑‑‑Keeping in view the past‑mortem report of the deceased it was not ascertainable as to whose fire shot proved fatal, which was a mitigating circumstance in favour of accused‑‑‑conviction of accused was consequently maintained but his sentence of death was reduced to imprisonment for life in circumstances.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302/34‑‑‑Criminal Procedure Code (V of 1898), S.417(1) ‑‑‑ Appeal against acquittal‑‑‑Accused had been assigned similar role of firing as attributed to the convicted co‑accused which had culminated in the murder of the deceased‑‑‑Prosecution evidence regarding the convicted co‑accused had been believed while the same set of evidence had been disbelieved against the accused‑‑‑Trial Court had not appreciated the evidence of the prosecution in its true perspective and had not given good reasons for acquittal of accused which had resulted in grave miscarriage of justice‑‑‑Trial Court's judgment acquitting the accused was consequently set aside and the accused was convicted by High Court under S.302/34, P.P.C. and sentenced to imprisonment for life with the direction to pay Rs.1,00,000 as compensation to the legal heirs of the deceased.

Khawaja Muhammad Khan Gara for Appellant.

Malik Ahmad Jan, A. A.‑G. for the State.

Akhtar Naveed, Dy. A.‑G. assisted by Assadullah Khan Chamkani and S. Naz Muhammad for the Complainant.

Date of hearing: 18th June, 2002.

2002 P Cr. L J 2021

[Peshawar]

Before Tariq Parvez Khan and Ijazul Hassan Khan, JJ

KACHKOOL ‑‑‑ Appellant

Versus

THE STATE and others‑‑‑Respondents

Criminal Appeal No.287 and Criminal Miscellaneous No.222 of 1999, decided on 12th August, 2002.

(a) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑Ss. 365‑A & 120‑B‑‑‑Appreciation of evidence‑‑‑Very promptly lodged F.I.R. had rather suggested that things were pre‑planned‑‑­Accused had not been named in the F.I.R. and was never put to test identification parade through the complainant‑‑‑Incriminating evidence against the accused consisted of the statements of the complainant and that, of the abductee, pointation memo prepared at the instance of the accused when he led the police party to the house where the abductee had been detained and the confessional statement made by the accused‑‑­Language used in the pointation memo. had not referred to the recovery of the abductee but only to the place of detention‑‑ ‑Abductee had stated in his cross‑examination that he had not seen the accused with the police at the time of his recovery' but only learnt that the accused had been arrested‑‑‑Such statement of the abductee had reflected adverstely on the statements of the recovery witnesses who had stated that the accused was present with them at the time of recovery of the abductee‑‑‑Complainant had not referred in his examination‑in‑chief to any telephone call received by him after the abduction of his brother except that his brother was recovered by the police on 5‑9‑1995 and that the local police had contacted him during investigation and informed him about the arrest of the accused‑‑‑Demand of ransom had only been referred to by the abductee in his statement at the trial‑‑‑Owner of the P.C.O. wherefrom the accused was allegedly arrested had not been examined or named‑‑­Prosecution witnesses had referred to three different locations wherefrom the accused had been arrested‑‑‑Confession of the accused had been recorded after a delay of 7/8 days‑‑‑If the accused had volunteered to point out place of detention of the abductee on the very first day of his arrest he should have also volunteered to make confession on the same day‑‑‑Prosecution had failed to bring home charge against the accused‑‑­Conviction and sentence of the accused were set aside and he was acquitted of the charge.

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

‑‑‑‑S. 154‑‑‑Unreasonable promptness in lodging F.I.R.‑‑‑No doubt that a prompt F.I.R. corroberates the version of the complainant but a very prompt F.I.R. would rather suggest that things were pre‑planned regard being had to the facts of the case.

(c) Qanun‑e‑Shahadat (10 of 1984)‑‑‑

‑‑‑‑Art. 41‑‑‑Confession, voluntary‑‑‑Nature of‑‑‑When confession is recorded after a delay of 7/8 days though the accused has already pointed out place of detention of abductee and where Investigating Officer intentionally tells lie that confession was recorded after the expiry of police custody, such confession would not be a voluntary confession, same, therefore, excluded of consideration.

Imitazur Rehman for Appellant.

Akhtar Naveed, Dy. A.‑G. for the State.

Khawaja Muhammad Khan and Khalil Khan for the Complainant.

Date of hearing: 4th July, 2002.

2002 P Cr. L J 2041

[Peshawar]

Before Shah Jehan Khan and Shahzad Akbar Khan, JJ

THE STATE through Advocate‑General, N.‑W.F.P., Peshawar‑‑‑Appellant

Versus

AHMED ZAMAN KHAN‑‑‑Respondent

Criminal Appeal No.79 of 2002, decided on 5th July, 2002.

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

‑‑‑‑S. 25‑‑‑Limitation Act (IX of 1908), Ss.29(2)(a) & 12(2)‑‑‑Appeal against acquittal‑‑‑Limitation‑‑‑Appeal was time‑barred by one day which day was consumed in obtaining copy of the judgment‑‑‑Section 12(2), Limitation Act excluded the period of time consumed in obtaining copy of the judgment and the day on which impugned judgment was pronounced‑‑‑Operation of S.12(2), Limitation Act, 1908 was ousted only if there was any provision of law contained in a special or local law to this effect as per S.29(2)(a), Limitation Act, 1908‑‑‑Anti‑Terrorism Act, 1997 being a special law had not ousted the operation of S.12, Limitation Act, 1908, therefore, one day which was genuinely spent in obtaining copy of the impugned judgment had to be excluded from the limitation period of 15 days‑‑‑Appeal filed against acquittal was within time in circumstances.

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

‑‑‑‑Ss. 6 & 7‑‑‑Explosive Substances Act (VI of 1908), Ss.3 & 4‑‑‑Penal Code (XLV of 1860), S.324‑‑‑Alleged telephone call made by the accused prior to the occurrence had been admitted by the accused in his statement under S.342, Cr.P.C.‑‑‑Said telephone call had been received by the real niece of the accused to whom he was not a stranger and there was abusive talk by the accused‑‑ ‑Accused could be identified even by his voice which was not the only source of identification but there was evidence that the accused had been identified otherwise in the light of electric bulb lit in the house of the complainant‑‑‑Neither any significant improvement was notified nor the complainant was required to give a detailed narration of the incident in the F. I. R. ‑‑‑Injured witness who was an independent witness had categorically stated that he noticed the accused throwing the grenade from the roof of the house as a result of which he alongwith police officials sustained injuries‑‑‑Ocular account had been duly supported by the recovery of metallic pieces of hand-­grenade, a fuse and veshal from the scene of occurrence, blood secured from the house of the complainant with a positive result from the Bomb Disposal Expert and the Forensic Science Laboratory‑‑‑No motive for false implication had been pleaded‑‑‑Prosecution case against the accused thus stood proved‑‑‑Appeal to the extent of S.3, Explosive Substances Act was not pressed by the Deputy Advocate‑General for want of requisite sanction from the Government‑‑‑High Court set aside acquittal order passed by the Trial Court and convicted and sentenced the accused under S.7(b), Anti‑Terrorism Act to 8 years' rigorous imprisonment alongwith fine and compensation to be paid to injured prosecution witness.

Muhammad Riaz v. The State 1997 PCr.LJ 1846; Qadeer Hussain's case 1994 PCr.LJ 788(2) and Ghulam Hussain and another v. The State NLR 1993 page 203 ref.

Muhammad Ayub Khan, Dy. A.‑G. for the State.

Abdullah Jan Mirza and Saeed Akhtar Khan for Respondent.

Dates of hearing: 4th and 5th July, 2002.

2002 P Cr. L J 2072

[Peshawar]

Before Malik Hamid Saeed, J

PARVEZ MUZAMMIL KEEN and 5 others‑‑‑Petitioners

Versus

MUHAMMAD ANIS and another‑‑‑Respondents

Criminal Miscellaneous No. 1 of 2000, decided on 30th July, 2002.

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

‑‑‑Ss. 245 & 249‑A‑‑‑Acquittal‑‑‑No distinction between the acquittal of accused recorded under S.245, Cr.P.C. or recorded under S.249‑A, Cr.P.C. for the purpose of filing appeal or revision.

(b) Penal Code (XLV of 1860)‑‑‑

‑.‑‑‑Ss. 406/417/418/420/467/468/471/474/477‑A‑‑‑Criminal Procedure Code (V of 1898), Ss.439(5), 417(2) & 561‑A‑‑‑Quashing of Sessions Court's judgment‑‑‑Against the order of acquittal of accused passed by the Magistrate under S.249‑A, Cr.P.C. in the private complaint, complainant had the remedy of filing an application for special leave to appeal before the High Court under S.417(2), Cr.P.C which he did not avail‑‑‑Revision petition filed by the complainant before the Sessions Court against the said order of acquittal was not competent in view of the provisions of S.439(5), Cr.P.C.‑‑‑Impugned judgment of Sessions Court accepting the revision petition being without jurisdiction was not sustainable and the same was quashed accordingly.

1994 PCr.LJ 2297; 1984 MLD 1488 and 1986 PCr.LJ 2179 distinguished.

Civil Revision No.55 of 1998; Taza Khan v. Taaliman Khan (Criminal Revision No. 49 of 1998); PLD 1982 Kar. 128; 1991 PCr.LJ 19; PLD 1996 Lah. 457; 1998 MLD 1605 and 1999 MLD 585 ref.

Abdul Sattar Khan for Petitioner.

Abdul Samad Khan and Muhammad Jamil for Respondents

Imtiaz Ali, A.A.‑G. for the State.

Date of hearing: 29th July, 2002.

2002 P Cr. L J 255

[Quetta]

Before Aman-ul-Allah Khan and Fazal-ur-Rehman, JJ

ABDUL WAHEED---Appellant

versus

THE STATE---Respondent

Criminal Appeal No. S-11 of 2001, decided on 11th August, 2001.

Penal Code (XLV of 1860)---

----S. 302(c)---Appreciation of evidence---Application of rule of consistency---Eye-witnesses of the occurrence had already been disbelieved by the Trial Court qua the two acquitted co-accused---Seizing Officer and recovery witness had not properly identified the accused in Court---Mandatory provisions of S.103, Cr.P.C: had not been complied with and no private inhabitant of the area had been associated with recovery proceedings---Recovery of Kalashnikov and shotgun was doubtful in the absence of report of Fire-arm Expert to indicate that the crime empties recovered from the spot were fired from the recovered fire-arm---Finding of Trial Court was based on surmises and not on any valid evidence---Moral conviction of the Judge about the guilt of accused could not form the basis of his conviction---No sufficient evidence had come on record showing implication of accused on capital charge beyond any reasonable doubt---Case of accused being not distinguishable from that of acquitted co-accused, rule of consistency required that the accused should have similar treatment by allowing him same benefit--­Accused was extended the benefit of doubt and acquitted in circumstances.

2001 SCMR 56; 1999 MLD 1995; 1993 SCMR 417; PLD 2001 Pesh. 27; 1985 SCMR 95; 2001 SCMR 624; 1999 SCMR 1220; 2001 SCMR 424; 1995 SCMR 1627; 1998 SCMR 278; 2001 PCr.LJ 435; 1987 SCMR 46; PLD 1990 Pesh. 6; 1976 PCr.LJ 17; 1995 SCMR 895; 1995 SCMR 1345 and 2000 SCMR 1038 ref.

Miss Iram Mehmood for Appellant.

Haji Ghulam Mustafa Mengal, Asstt. A.-G. for-the State.

Date of hearing: 19th May, 2001.

2002 P Cr. L J 270

[Quetta]

Before Tariq Mahmood and Ahmed Khan Lashari, JJ

MIR HAZAR---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.S-36 and Murder Reference No.S-6 of 2001, decided on 27th October, 2001.

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

----Ss. 302(a) & 302(c)---Appreciation of evidence---Proof against accused in either of the forms specified in S.304, P.P.C. being not available, his conviction under S.302(a), P.P.C. by Trial Court was illegal---Accused had not made confession of Qatl-i-Amd as such--­Admission made by accused was of implied killing but not express which was to be treated not in isolation of but in conjunction with his specific plea that he had fired at the vehicle which the deceased had failed to stop when signalled---Delay in recording confessional statement in the events of the background was fatal to prosecution and more importantly when no satisfactory explanation for delaying the same for two weeks was furnished which was suspicious---Accused undisputedly was on duty to check the vehicle for enquiry or the persons found suspicious which was being done on the orders of superiors irrespective of the fact whether such orders could be issued---Plea of accused in his statement under S.340(2), Cr.P.C. to such extent was not challenged---Accused in good faith reasonably thought that the said orders were lawful and so he tried to stop the deceased who was armed with Kalashnikov and when he was not in a position to stop him, he fired at the car, but in that process two bullets also hit the deceased whose conduct was a contributory factor--­Accused, thus, had undoubtedly exceeded the powers statedly given to him by law and caused the death of the deceased by doing an act which he in good faith believed to be lawful and necessary for the due discharge of his duty---Although there was no mens rea and the accused had acted in good faith, even then the said authority was not exercised by him with due care and attention and he had acted negligently- --However, the accused neither intended to cause death, nor he knew that his act must cause death in all probabilities, though being a police constable he ought to have had the knowledge that it could cause death---Conviction of accused under S.302(a), P.P.C. was altered to one under S.302(c), P.P.C. and he was sentenced to seven years' R.I. in circumstances.

Muhammad Riaz's case PLD 1980 FSC 1; Abdul Haq v. State PLD 1996 SC 1; Gul Hassan's case PLD 1989 SC 633; Abdul Zahir v. State 2000 SCMR 406; Ali Muhammad's case PLD 1996 SC 274; Muhammad Hanif's case 1992 SCMR 2047; AIR 1951 Orrisa 284; Shehla Zia's case PLD 1994 SC 693 and PLD 1998 SC 388 ref.

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

----S. 302---Appreciation of evidence---Case of two versions--­Principle---Where the prosecution has put its own version and the accused has a different story to tell regarding the same incident, the version which is more plausible and nearer to realities and common sense is to be accepted and if the version of accused is possible, then the same may be accepted.

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

----Ss. 77 & 79---Mistake of fact---Combined reading of Ss.77 & 79, P.P.C. demonstrates that mistake of fact can be a defence if it is in good faith and one is bound by the law to do it.

Haji Ghulam Mustafa Mengal, A.A.-G. for the State.

H. Shakeel Ahmed and Syed Iqbal Shah for Respondent.

Date of hearing.: 29th September, 2001.

2002 P Cr. L J 297

[Quetta]

Before Raja Fayyaz Ahmed, C.J. and Tariq Mahmood, J

Haji FAQIRULLAH---Appellant

versus

SAUD HASSAIN, DRUG INSPECTOR and another---Respondents

Criminal Appeal No.238 of 2000, decided on 15th August, 2001.

Drugs Act (XXXI of 1976)---

----S. 27(1)(a)---Appreciation of evidence---Seventy tablets of a drug contained in seven strips had been seized and taken into possession by the Drug Inspector from a Medical Store being unregistered drug---No documentary evidence was produced by the complainant Drug Inspector in the Court to prove that the said drug was not a registered one---Oral assertion of the drug being an unregistered one would not ipso facto amount to proof of the charge and could not expose the accused to any criminal liability---Recovery of the stated drug from the medical store of the accused was inconsequential---Accused was acquitted in circumstances.

Ghulam Mustafa Butt for Appellant.

Ghulam Mustafa Mengal, Asstt. A.-G, for the State.

Respondent No. 1 (present).

Date of hearing: 15th August, 2001.

2002 P Cr. L J 320

[Quetta]

Before Raja Fayyaz Ahmed, C.J. and Tariq Mahmood, J

SHADI KHAN---Appellant

versus

THE STATE---Respondent

Criminal Appeal No.26 of 2001, decided on 16th July, 2001.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S.103---Appreciation of evidence---Applicability of S.103, Cr.P.C. had been excluded in cases under the Control of Narcotic Substances Act, 1997---Provisions of S.103, Cr.P.C., even otherwise, had' no application in the case as no place was to be searched by the raiding party---Contraband material recovered from the accused on chemical analysis was found to be raw opium---Prosecution evidence was consistent, reliable and convincing on all material particulars---Accused had not disputed their presence in the vehicle, their apprehension by the Customs party at the given site and time and recovery of opium from the said vehicle---Customs Sepoy could not be conceived of having planted a huge quantity of opium weighing 368 kilograms on the accused---Defence evidence was not only conflicting on material points but was also misconceived, baseless and an afterthought---Driver of the vehicle as well as other two occupants of the vehicle had active and conscious possession of the illicit opium present therein which fact was also supported by the specified arms and ammunition recovered from the front cabin of the said vehicle---Conviction and sentence of accused were upheld in circumstances.

1999 PCr.LJ 1546; Shah Wali and another v. The State PLD 1993 SC 32; 1993 SCMR 789; Fida Jan v. The State 2001 SCMR 36 and Qurban and others v. The State 1996 SCMR 1894 ref.

M. Salahuddin Mengal, (Mrs. Shabnam Allahdin and Abdul Rahim Mengal on State expenses) for Appellant.

Ghulam Mustafa Mengal, Asstt. A.-G. for the State.

Date of hearing: 31st May, 2001.

2002 P Cr. L J 605

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

MUHAMMAD MATLOOB and 7 others‑‑‑Petitioners

Versus

THE STATE and another‑‑‑Respondents

Criminal Revision Petitions Nos.58 and 60 of 2001, decided on 15th October, 2001.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/147/148/149/337‑‑­Bail‑‑‑Accused had fired on the deceased by his pistol which caused his death‑‑‑Other accused had caused dangerous and grievous injuries on the person of the prosecution witness by firing at him‑‑‑Said allegations had been supported by medical evidence and evidence of recovery of fire­arms at the instance of accused‑‑‑Accused, thus, were prima facie connected with the commission of the offence‑‑‑Bail was refused to accused in circumstances.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/147/148/149/337‑‑­Bail, grant of‑‑‑Accused had not cased any injury to the deceased nor they were alleged to have caused any grievous injury on the vital part of the body of the injured prosecution witnesses‑‑‑Was yet to be determined whether the accused had attacked the complainant party, by forming an unlawful assembly in furtherance of their common intention‑‑‑One accused being 75 years old was entitled to bail under first proviso to S.497(1), Cr.P.C.‑‑‑Accused were admitted to bail in circumstances.

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

‑‑‑‑S. 497‑‑‑Bail‑‑‑Mere heinousness or gravity of offence itself is no ground for refusal of bail.

1995 SCR 237 ref.

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

‑‑‑‑Ss. 497/498‑‑‑Bail‑‑‑Assessment of evidence‑‑‑Nature‑‑‑Only provisional and objective assessment of ambient circumstances of case which do not trench upon the case is permissible for arriving at a decision that charge against accused is groundless or not‑‑‑Deeper appreciation of evidence and its close scrutiny is neither permissible nor desirable at bail stage.

1995 SCR 104 ref.

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

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.302/324/147/148/149/ 337‑‑‑Cancellation of bail‑‑‑Accused had joined investigation and taken the plea of alibi which was supported by numerous affidavits‑‑‑Injuries attributed to accused on the forehead of the deceased by the butt of the Kalashnikov were in the form of abrasions and lacerations according to the post‑mortem report‑‑‑No Kalashnikov had been recovered from the accused‑‑‑Incumbent upon the Court while granting bail to accused to record that the complainant party implicated the accused with mala fide intention‑‑‑Discretion exercised by the Trial Court in granting bail to accused was neither arbitrary nor perverse or fanciful‑‑‑Petition for cancellation of bail was dismissed accordingly.

1996 PCr.LJ 569 ref.

(f) Criminal trial‑‑‑

‑‑‑‑Act of Court‑‑‑Mistake of Court should not prejudice an accused.

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

‑‑‑‑S. 497‑‑‑Penal Code(XLV of 1860), Ss.302/324/147/148/149/337‑‑­Bail, grant of‑‑‑Old age‑‑‑Age per se could not entitle an accused to bail and an old person could not claim bail as a matter of right in a non­bailable case.

Raja Bashir Khan for Petitioners.

Abdul Majeed Mallick for the Complainant.

Sardar Muhammad Raziq Khan, Addl. A.‑G. for the State.

2002 P Cr. L J 668

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

FATIMA BIBI and 5 others‑‑‑Appellants

Versus

SARDAR ALI and 3 others‑‑‑Respondents

Criminal Appeals Nos. 12 and 23 of 2001, decided on 15th November, 2001.

(a) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)‑‑‑-

‑‑‑‑S. 15‑‑‑Criminal Procedure Code (V of 1898), S.417‑‑‑Appeal against acquittal‑‑‑Prosecution witnesses although were closely related to the complainant, yet they had no animus against the accused.‑‑Presence of injured prosecution witnesses at the scene of occurrence could not be doubted, rather injuries on their persons had supported the prosecution version‑‑‑Evidence of prosecution witnesses particularly that of injured witnesses having not been challenged and rebutted in cross‑examination, would be legally presumed to have been proved‑‑‑Place of occurrence being a far‑flung hilly area, delay in lodging the F.I.R. could not be taken as having assisted in the fabrication of the prosecution case which stood proved by sufficient and cogent evidence‑‑‑First Appellate Court had failed to appreciate the prosecution evidence in its the perspective and recorded the impugned judgment in a hasty manner contrary to the canons of justice‑‑‑Impugned judgment acquitting the accused was consequently set aside and that of Trial Court was restored in circumstances.

1997 MLD 2013 and PLD 1956 SC (Ind.) 303 ref.

(b) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)‑‑‑-

‑‑‑‑S. 15‑‑‑Appreciation of evidence ‑‑‑Principle‑‑‑Evidence of related witnesses cannot be ignored simply on the ground of their relationship with the complainant party unless it is established that they Were inimical and interested witnesses.

(c) Criminal trial‑‑‑-

‑‑‑‑Cross‑examination‑‑‑Suggestion in cross‑examination‑‑‑Simple suggestion in cross-examination which is denied by the witness is no evidence at all.

(d) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)‑‑‑

‑‑‑‑S. 15‑‑‑Appreciation of evidence‑‑‑Delayed F.I.R.‑‑‑Delay in lodging the F.I.R. cannot by itself be held to be a reason for rejecting the evidence which is otherwise fully entitled to credit‑‑‑Delay only is just a circumstance, which puts the Court on the guards.

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

‑‑‑‑S. 342‑‑‑Examination of accused‑‑‑Inadequate examination of accused under S.342, Cr.P.C. cannot be made a ground for setting aside the roved to have resulted in miscarriage of justice.

PLD 1956 SC (Ind.) 303 ref.

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

‑‑‑‑S. 154‑‑‑First information report ‑‑‑F.I.R. is not a sacrosanct or substantive piece of evidence‑‑‑Primary purpose of the F.I.R. is to inform the police about the commission of a cognizable offence.

Muhammad Ayub Sabir for Appellant.

Ch. Munsif Dad for the Complainant.

Sardar Muhammad Raziq Khan, Addl. A.‑G. for the State.

2002 P Cr. L J 799

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

IMTIAZ AHMED ‑‑‑Appellant

versus

THE STATE‑‑‑Respondent

Criminal Appeal No.41 of 2000, decided on 20th November, 2001.

Azad Jammu and Kashmir Prohibition (Enforcement of Hadd) Act, 1995‑‑‑

‑‑‑‑Ss. 3 & 4‑‑‑Appreciation of evidence‑‑‑Prosecution story was shrouded in mystery‑‑‑Prosecution had failed to prove as to how much heroin was recovered from the accused and how much was sent to the Chemical Examiner for analysis‑‑‑Prosecution story was that eight grams of heroin was recovered, but nothing was on record to show as to why all the recovered contraband was not sent for chemical examination‑‑­Contradiction appeared in statements of prosecution witnesses with regard to weight of recovered heroin and place of recovery‑‑‑Parcel of heroin was sent to the Chemical Examiner for analysis nine days after recovery of heroin from the accused and the prosecution had failed to explain as to in whose possession and under whose supervision the recovered heroin remained during the said period‑‑‑Possibility could not be ruled out that within said period of nine days the recovered intoxicant was substituted‑‑­Delay in dispatching the recovered heroin had made the case of prosecution suspicious and doubtful‑‑‑Alleged recovery was not witnessed by any independent witness or inhabitant of the locality and only police officials were cited as witnesses for the same‑‑‑Police officials though were also as good witnesses as any other member of public, but in the light of the peculiar facts and circumstances of the case, when the entire recovery proceedings were suspicious and unreliable, the self­‑contradictory evidence of the police could not be relied upon‑‑­Investigating Officer who was an important witness was not produced before the Court‑‑‑Prosecution was duty bound to produce all the important evidence and non‑production of the same had adversely affected the case of the prosecution‑‑‑Report of the Chemical Examiner was not put to the accused during his examination and no explanation was sought from him, failing which it could not be made basis for the conviction‑‑‑No legal and effective evidence was available on the record to prove the charge against the accused who had suffered the ordeal of hearing for the last nine years‑‑‑Prosecution evidence was not worthy of any credence, the recovery proceedings were shrouded in mystery and the conduct of the police party was not confidence‑inspiring‑‑‑Possibility of the accused having been falsely implicated in the case could not be excluded‑‑‑Trial Court as well as the First Appellate Court had failed to appreciate the evidence of prosecution in its true perspective and arrived at a wrong conclusion‑‑‑Concurrent order of the Courts below could not be sustained‑‑‑Conviction and sentence awarded to the accused were set aside giving him benefit of doubt and he was set at liberty.

1977 PCr.LJ 671; PLD 1980 Pesh. 119; 1981 SCMR 1105(2); Mst. Iqbal Bibi v. State 2000 PCr.LJ 1812 and 1987 PLJ (sic) 831 ref.

Khawaja Imtiaz Ahmed, Advocate for Appellant.

Syed Ajaz Ali Gilani, Asstt. A.‑G. for the State.

2002 P Cr. L J 1262

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

Raja RAFAQAT USMANI‑‑‑Petitioner

Versus

UMAR FAROOQ ABASI and another‑‑‑Respondents

Criminal Revision Petition No. 110 of 2001, decided on 1st March, 2002.

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

‑‑‑‑Ss.497/498‑‑‑Bail‑‑‑Principle‑‑‑Law for the purpose of bail cannot be stretched in favour of prosecution and if any benefit of doubt arises it must go to the accused because bail is not to be withheld as punishment.

2002 SCMR 282 ref.

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

‑‑‑‑Ss. 497/498‑‑‑Bail‑‑‑Principle‑‑‑Grant or refusal of bail in non-bailable cases lies within the discretion of Court, but such discretion has to be exercised by the Court with due care and caution keeping in view the peculiar facts and circumstances of each case.

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

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.324/337‑F‑‑‑Cancellation of bail‑‑‑Occurrence had taken place in the room of the accused when the complainant alongwith his three companions had entered there to enquire about the altercation which took place at day time was, therefore, yet to be determined as to who had launched the attack first‑‑‑Injury attributed to accused was not on any vital part of the body of the victim and it was yet to be seen whether the case against him would fall under S.324, P.P.C. or under S.337‑A, P.P.C.‑‑‑Mere firing a pistol shot by the accused would not lead to inference that he had the intention to kill ‑‑­Challan had been presented in the Court and the trial was in progress‑‑­Accused was not alleged to have misused the concession of bail‑‑­Impugned order granting bail to accused was well‑reasoned and well‑balanced which fulfilled the requirements of law and the discretion exercised by the Trial Court was neither arbitrary nor improper‑‑‑Petition for cancellation of bail was dismissed in circumstances.

1994 SCR 212; 1998 PCr.LJ 149; Muhammad Ashraf v. Muhammad Saghir Khan and another Criminal Revision Petition No.39 of 2001; PLD 1987 SC (AJ&K) 36; PLD 1988 SC (AJ&K) 48; 1988 PCr.LJ 1088; 1990 PCr.LJ 142; 1991 PCr.LJ 1856 (Sh.C. AJ&K); 1992 SCR 379; 1993 PCr.LJ (Sh.C.) 933; 1996 PCr.LJ 745; 1994 PCr.LJ 2335; Muhammad Rashid v. Zahid Hussain and another Criminal Revision Petition No.86 of 2001; 2002 SCMR 282 and 1989 SCMR 1987 ref.

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

‑‑‑‑S. 497(5)‑‑‑Cancellation of bail‑‑‑Principle‑‑‑Strong and exceptional grounds are required for cancellation of bail granted by a Court of competent jurisdiction.

Ghulam Mustafa Mughal for Petitioner.

Atta Ilahi Abbasi for Respondent No 1.

Syed Ejaz Ali Gilani, Asstt. A.‑G. for the State.

2002 P Cr. L J 1271

[Shariat Court (AJ&K)]

Before Sardar Muhammad Nawaz Khan, and Ifiikhar Hussain Butt, JJ

MUHAMMAD SIDDIQUE‑‑‑Petitioner

Versus

ABDULLAH and 4 others‑‑‑Respondents

Criminal Revision No. 137 of 2000, decided on 11th January, 2002.

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

‑‑‑‑S. 497(1), third proviso‑‑‑Bail‑on ground of statutory delay‑‑‑Period consumed during pendency of a bail application by an accused before any Court having appellate or revisional jurisdiction, cannot be counted in his favour.

Sarfraz Khan v. The State 1999 YLR 2115; Gala Jan v. The State 1984 PCr.LJ 2456 and Rehmat Khan v. The State PLD 1991 Pest. 47 ref:

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

‑‑‑‑S. 497(5), third proviso‑‑‑Penal Code (XLV of 1860), Ss.302/34 & 341/109‑‑‑Cancellation of bail‑‑‑Accused had been released on bail by the Court below on the ground of statutory delay ‑in conclusion of the trial‑‑­Period consumed during bail application by the accused could not be counted in their favour and the same was to be counted against them‑‑­Computation made by Court showed that the bail application moved by the accused was pre ‑ mature and liable to be rejected by the Trial Court‑‑‑Bail allowed to accused was cancelled accordingly.

Sarfraz Khan v. The State 1999 YLR 2115; Gala Jan v. The State 1984 PCr.LJ 2456 and Rehmat Khan v. The State PLD 1991 Pesh. 47 ref.

Sardar Pervaiz Akhtar for Petitioner.

K.D. Khan for Respondents.

Syed Ejaz Ali Gilani, Asstt. A.‑G. for the State.

2002 P Cr. L J 1541

[Shariat Court (AJ&K)]

Before Iftikhar Hussain Butt, J

MUHAMMAD IRSHAD‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeals Nos.21 and 41 of 1998, decided on 9th March, 2002.

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

‑‑‑‑S. 154‑‑‑First Information Report‑‑‑Scope‑‑‑Role of F.I.R. in criminal cases ‑‑‑F.I.R. is not a sacrosanct document or a piece of substantive evidence and it can only be used for contradicting or corroborating the maker thereof yet F.I.R. lays down the foundation of the prosecution case and any infirmity appearing in it has very important role. in determining the final outcome of the case ‑‑‑F.I.R., thus is a most important document in a criminal case which furnishes the clue of the possible truth of the allegation against the accused and also causes a firm impression of the prosecution case‑‑‑F.I.R. is a statement which is made soon after the occurrence when the memory of the informant is fresh and it is also unlikely that he had an opportunity of fabrication and specifically when it comes from a person who shows himself to be present on the scene ‑‑‑F.I.R. has greatest value and must be held to militate against any contrary or varied subsequent version.

Muhammad Ishfaq alias Chief and 18 others v. The State 1998 PCr.LJ 1486 ref.

(b) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Corroboratory evidence‑‑­Principle‑‑‑Conviction cannot be recorded on the basis of corroboratory evidence which is always used to support the statements of witnesses when the Court reaches the conclusion that the version of prosecution witnesses is, prima facie, correct but by way of prosecution it needs corroboration to attain clarity.

(c) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Appreciation of evidence‑‑‑Site plan‑‑Site plan is not a substantive piece of evidence and it is prepared only to appreciate or explain the evidence.

(d) Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 302‑‑‑Burden of proof‑‑‑Onus always lies on the prosecution to prove its case‑‑‑ Prosecution has to succeed on the strength of its own case and not on the weakness of the defence.

Mehboob‑ur‑Rehman v The State 1996 PCr.LJ 238; 1996 PCr.LJ 1360 and Hakim Ali and others v. The State 1971 SCMR 432 ref.

(e) Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974)‑‑‑

‑‑‑‑S. 5‑‑‑Appreciation of evidence‑‑‑Delay of more than five hours in lodging the F.I.R. was not explained by the prosecution and the possibility of having used the same to consultation and deliberation for falsely implicating the accused was not altogether ruled out in the presence, of enmity between the parties‑‑‑Name of accused was not mentioned in the F.I.R.‑‑‑Evidence of highly interested anal partisan witnesses was not corroborated by any direct or indirect independent evidence‑‑‑Ocular account furnished by partial and related witnesses who had made substantial improvements at the trial did not inspire confidence‑‑‑Trial Court had failed to assess the evidence in a legal and proper manner and the conclusion drawn by it was contrary to the evidence on record and against the settled norms laid down by the Superior Courts‑‑‑Accused was acquitted on benefit of doubt in circumstances.

Muhammad Sarwar's case PLD 2001 SC (AJ&K) 1; 1995 PCr.LJ 25; 1996 PCr.LJ 238; 1996 PCr.LJ 1360; Muhammad Ishfaq alias Chief and 18 others v. The State 1998 PCr.LJ 1486; Ghulam Abbas and others v. The State 2001 PCr.LJ 1672; PLD 1978 SC (AJ&K) 146; PLD 1979 SC (AJ&K) 23; PLD 1983 SC (AJ&K) 211; 1992 SCR 120; Wali Dad and others v. Emperor AIR (33) 1946 Lah. 229; Mujahid Hussain v. The State 1985 SCMR 1573; Tafsir and others v. The State PLD 1960 Dacca 1019; Tariq Pervez v. The State 1995 SCMR 1345 and Hakim Ali and others v. The State 1971 SCMR 432 ref.

Mir Khalid Mehmood for Appellant.

Ch. Lal Hussain for the Complainant.

Sardar Muhammad Raziq Khan, Addl. A.‑G. for the State.

2002 P Cr. L J 1959

[Shariat Court (AJ&K)]

Before Syed Hussain Mazhar Kaleem, J

RIAZ‑UR‑REHMAN‑‑‑Petitioner

Versus

NAZIR AHMED KHAN and another‑‑‑Respondents

Criminal Revision No.75 of 1998, decided on 17th August, 2001.

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

‑‑‑‑S. 497(2)‑‑‑Bail, grant of‑‑‑Consideration of counter‑version‑‑‑Further inquiry‑‑‑Counter version could only be considered if it would provide some substantial ground for further inquiry into the guilt of accused.

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

‑‑‑‑S. 497(5)‑‑‑Penal Code (XLV of 1860), Ss.302/324/147/148/149/34‑‑­Bail, cancellation of‑‑‑Deceased was not present at place of occurrence when fight between the parties started, but he came there to rescue his father prom clutches of accused party‑‑‑Even if complainant party was the aggressor, it could not be said that deceased was a member of complainant party present at time of occurrence because he arrived at the place of occurrence after fight had started‑‑‑Could not be said at bail stage that either deceased was an aggressor or was a member of aggressor party or for that matter any right of self‑defence or defence of property was available to accused against deceased at the time of occurrence‑‑­Trial Court had pointed out some contradictions in statements of prosecution witnesses, but those were not sufficient to bring case of accused within scope of further inquiry‑‑‑Accused being responsible for inflicting fatal blow that caused death of deceased, was not entitled to concession of bail, but Trial Court while granting bail to accused had ignored said fact‑‑‑Order granting bail to accused passed by Trial Court being incorrect was set‑aside and bail allowed to accused, was cancelled.

Nazir Ahmed Khan and 3 others v. The State Criminal Appeal No. 12 of 1997 ref.

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

‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Principles‑‑‑While deciding a bail application. Court had to make a tentative assessment of material available on record and any deeper appreciation or detailed scrutiny of prosecution evidence was not admissible at bail stage because any expression of opinion could prejudice, case of either party.

Abdul Hameed Keremi for Petitioner.

Ghulam Mustafa Mughal for Non‑Petitioner.

Ejaz Gilani for the State.

2002 P Cr. L J 435

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

ZAFAR IQBAL and another‑‑‑Appellants

versus

THE STATE‑‑‑Respondent

Criminal Appeal No:9 of 2001, decried on 31st July, 2001.

(On appeal from the judgment of the Shariat Court, dated 29‑3‑2001 in Criminal Revision No. 147 of 2000).

Penal Code (XLV of 1860)‑‑‑

‑‑‑‑S. 307/34‑‑‑Azad Jammu and Kashmir Islamic Penal Laws Enforcement Act (IX of 1974), Ss.5/15‑‑‑Appeal to Supreme Court‑‑­Cross‑case was also pending in Trial Court which normally was to be decided simultaneously after completing the trial in both the cases‑‑­Supreme Court observed that proceedings in cross‑case be finalized as early as possible and after completing the trial in both the cases, same were to be disposed of simultaneously.

Sardar Muhammad Siddique Khan, Advocate for Appellants.

Syed Ajaz Ali Gillani, Assistant Advocate‑General for the State.

Date, of hearing; 31st July, 2001.

2002 P Cr. L J 736

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, CJ.

and Muhammad Yunus Surakhvi, J

ABDUR REHMAN‑‑‑Appellant

Versus

PROSECUTING INSPECTOR and 15 others‑‑‑Respondents

Civil Appeal No.6 of 2000, decided on 30th May, 2000.

(On appeal from the order of High Court, dated 20‑10‑1999 in Writ Petition No. 117 of 1999).

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

‑‑‑‑‑Ss. 154 & 156‑‑‑Investigation of case‑‑‑Case was registered against the accused on direction of High Court passed on a Constitutional petition filed by the complainant and after investigation challan was presented in the Trial Court‑‑‑Supreme Court on appeal against judgment of High Court, set aside order of High Court holding that Constitutional petition filed before High Court suffered from laches‑‑‑Supreme Court, however, observed while accepting appeal against judgment of High Court that as the challan had already been presented to Trial Court, complainant was not likely to be adversely affected by its decision‑‑­Supreme Court, in circumstances, had not held that factum of registration of case would become infructuous as investigation in the case never ends and in view of the fact that after investigation, Agency had come to the conclusion that accused were guilty of committing offences with which they were charged‑‑‑After judgment of Supreme Court, police withdrew the case‑‑‑Complainant aggrieved by proceedings of police, filed Constitutional petition against said proceedings, which petition was dismissed by the High Court observing that in view of the judgment of Supreme Court, proceedings for withdrawal taken by police official did not suffer from any legal infirmity‑‑‑Question as to whether mere fact that a case was registered on direction of High Court given in an earlier Constitutional petition which was dismissed by Supreme Court on only ground of laches, would render proceedings of investigation illegal and justify withdrawal of case, was not adverted to by the High Court while dismissing subsequent Constitutional petition against proceedings of Police Authority‑‑‑Supreme Court set aside order of High Court, and remanded case to decide the same afresh after hearing arguments of parties in accordance with law on the said question.

Ch. Muhammad Azam Khan, Advocate for Appellant.

Khalid Masood, Advocate for Respondents Nos. l to 8 and 10 to 14.

Ch. Muhammad Mushtaq, Additional Advocate‑General for Respondent No.4.

Date of hearing: 29th May, 2000.

2002 P Cr. L J 785

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

MUHAMMAD RAHIM KHAN and 2 others‑‑‑Appellants

versus

MUHAMMAD KHURSHID KHAN‑‑‑Respondent

Criminal Appeal No. 10 of 2001, decided on 12th October, 2001.

(On appeal from the judgment of the High Court, dated 13‑3‑2001 in Criminal Reference No.27 of 2000).

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

‑‑‑‑S. 145‑‑‑Dispute concerning immovable property‑‑‑Order passed by the Magistrate did not fulfil the necessary requirements enjoined by law‑‑‑Magistrate had proceeded to‑ make interim attachment of the property in dispute under S.145(1), Cr.P.C. without following the correct procedure which was to be strictly complied with‑‑‑Condition precedent for the restoration of possession was that the Magistrate had to ascertain from the evidence as to which of the rival parties was in possession of the disputed property two months prior to passing of the preliminary order‑‑­Magistrate, however, did not give any such finding and passed the order of restoration of possession to the respondent observing that the property had been transferred to him by way of gift, although question of title to the property was immaterial in proceedings under S.145, Cr.P.C.‑‑­Preliminary order being defective, all the subsequent proceedings taken by the Magistrate stood vitiated‑‑‑Impugned orders were consequently set aside with the direction to the Magistrate to pass preliminary order under S.145(1), Cr.P.C. in the light of the observations made by Supreme Court and proceed afresh according to law.

Muhammad Ishaque Chowdhury and another v. Nur Mahal Begum and others PLD 1961 SC 426; The State v. Abdul Aziz and another 1977 PCr.LJ 192; Khitab Gul v. Niaz Muhammad PLD 1969 Pesh. 77 and Muhammad Bakhsh and others v. Haji Muhammad and 2 others v. The State PLD 1969 Kar. 22 ref.

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

‑‑‑‑S. 145(1)‑‑‑Provisions of S.145(1), Cr.P.C., nature of‑‑‑Provisions of subsection (1) of S.145, Cr.P.C. are mandatory and violation of the same is fatal to the proceedings subsequently taken.

Muhammad Ishaque Chowdhury and another v. Nur Mahal Begum and others PLD 1961 SC 426; The State v. Abdul Aziz and another 1977 PCr.LJ 192; Khitab Gul v. Niaz Muhammad PLD 1969 Pesh. 77 and Muhammad Bakhsh and others v. Haji Muhammad and 2 others v. The State PLD 1969 Kar. 22 ref.

Syed Nazir Hussain Shah Kazmi, Advocate for Appellants.

Ghulam Mustafa Mughal, Advocate for Respondent.

Date of hearing: 10th October, 2001.

2002 P Cr. L J 793

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, CJ and Khawaja Muhammad Saeed, J

Col. (Rtd.) MUHAMMAD FAROOQ and 2 others‑‑‑Appellants

STATE through Ehtesab Bureau Azad Jammu And Kashmir, Muzaffarabad‑‑‑Respondent

Criminal Appeal No.22 and Criminal Miscellaneous No.14 of ^001 decided on 12th October, 2001.

(On appeal from the judgment of the High Court, dated 1‑10‑2001 in Criminal Revision No.121 of 2001 and Criminal Miscellaneous No. 111 of 2001).

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

‑‑‑‑S. 526‑‑‑Constitution of Pakistan (1973), Art.185‑‑‑Transfer of case‑‑‑Accused was facing trial in a reference under the Ehtesab Act in Ehtesab Court since 1998 and he had been getting adjournments in the case on one pretext or the other‑‑‑Trial Court on one date of hearing had no option but to issue warrant of arrest against the accused due to his absence to ensure his presence and the prosecuting agency was bound to arrest him in the light of the said warrant‑‑‑Presiding Officer had to take all proper and necessary steps in accordance with law to ensure justice‑‑­Refusal by the Trial Court to provide free of cost copies of the documents tendered in evidence by the prosecution against the accused was also no ground sufficient to render the Presiding Officer disqualified from hearing the case‑‑‑Even the wrong order passed by the Court in good faith did not furnish a ground for holding such Court biased against the affected party‑‑‑Criminal case could not be transferred unless the superior Court was convinced that reasonable apprehension existed in the party's mind that the Trial Court would not act fairly and impartially in the case‑‑‑No case for transfer was made out by the accused‑‑‑Appeal was dismissed accordingly.

Ghulam Nabi v. The State and 5 others PLD 1979 Kar. 182; Abdul Rashid and others v. Chiragh Din and others 1985 PCr.LJ 2824; Liaquat Ali Butt v. Ahmed Nasim, Senior Superintendent of Police, Lahore and others 1986 PCr.LJ 2846; Imdadullah and 12 others v. The State and others 1981 PCr.LJ 1161 and Gulzar Ahmed and others v. The State 1994 PCr.LJ 634 ref.

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

‑‑‑‑S. 526‑‑‑Transfer of case‑‑‑Wrong order passed by Court‑‑‑Wrong order passed by a Court in good faith would not furnish a ground for holding such Court biased against the affected party.

Raja Muhammad Hanif Khan, Advocate for Appellants.

Ch. Muhammad Ibrahim Zia, Chief Prosecutor for the State.

Date of hearing: 12th October, 2001

2002 P Cr. L J 1102

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

MUHAMMAD ASIF‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No. 10 of 2001, decided on 25th October, 2001.

(On appeal from the judgment of the Shariat Court, dated 26‑2‑2001 in Criminal Revision Petition No.90 of 2000).

Criminal Procedure Code (V of 1898)‑‑

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/364‑A/34‑‑‑Bail, grant of‑‑‑Bail was claimed by accused previously on merits, but on the basis of material on record accused was not found entitled to concession of bail‑‑‑Bail on statutory ground again was not found available to the accused‑‑‑Trial of case was awaiting completion for last four and half years and such inordinate delay in prosecution of a case was an abuse of the process of Court‑‑‑Trial Court was directed by Supreme Court to complete trial within specified period.

Ch. Muhammad Sharif Tariq, Advocate for Appellant.

Sardar Muhammad Razziq Khan, Additional Advocate‑General for the State.

Abdul Khaliq Ansari, Advocate for Respondent No.2.

Date of hearing: 25th October, 2001.

2002 P Cr. L J 1104

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Khawaja Muhammad Saeed, J

KABIR HUSSAIN ‑‑‑Appellant

Versus

THE STATE‑‑‑Respondent

Criminal Appeal No.23 of 2001, decided on 31st December, 2001.

(On appeal from the judgment of the High Court, dated 20‑4‑2001).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑‑Ss. 516‑A & 550‑‑‑Powers of police to seize property‑‑‑Application for custody of seized vehicle‑‑‑Scope of S.550, Cr.P.C. was wide enough to empower Police Officer to seize any property which was alleged or suspected to have been stolen or which was found under circumstances which created suspicion of commission of any offence‑‑‑Vehicle in question, in the light of material available on record, was being used under forged registration papers and its customs duty had also not been paid‑‑‑Application for restoration of custody of vehicle, was rightly dismissed by the Magistrate.

Muhammad Yunus Arvi, Advocate for Appellant.

Sardar Muhammad Razziq Khan, Advocate for the State.

Date of hearing: 31st December, 2001.

2002 P Cr. L J 1106

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J.­ and Muhammad Yunus Surakhvi, J

MUHAMMAD AKHTAR‑‑‑Appellant

Versus

SOHAIL SIDDIQUE and 2 others‑‑‑Respondents

Criminal Appeal No.27 of 1999, decided on 28th March, 2000.

(On appeal from the judgment of the Shariat Court, dated 10‑11‑1999 in Revision Petition No. 38 of 1999).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 497(5) & 498‑‑‑Penal Code (XLV of 1860), Ss.337/341/506/34‑‑­Pre‑arrest bail, cancellation of‑‑‑Complainant could not bring anything on record to show that pre‑arrest bail could not have been allowed to accused‑‑‑Discretion exercised in bail matters could be disturbed only in cases where same would offend against well‑settled principles of law or was patently illegal‑‑‑No material had been placed on record to show that injuries alleged to have `been caused by accused resulted in loss of eyesight of the complainant‑‑‑Maximum punishment for offence committed by accused was five years‑‑‑Discretion exercised by Court in granting pre‑arrest bail to the accused, could not be said to be perverse or patently illegal.

Khalid Masood, Advocate for Appellant.

Ch. Lal Hussain, Advocate for Respondents Nos. 1 and 2.

Ch. Muhammad Mushtaq, Additional Advocate‑General for the State.

Date of hearing: 27th March, 2000.

2002 P Cr. L J 1109

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

MUHAMMAD SHABBIR‑‑‑Appellant

Versus

MUHAMMAD HUSSAIN and 5 others‑‑‑Respondents

Criminal Appeal.No.3 of 2001, decided on 4th March, 2002.

On appeal from the order of the Shariat Court, dated 19‑12‑2000 in Criminal Appeal No.26 of 1991).

Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss.417, 423 & 367‑‑‑Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), Ss. 10, 16 & 19‑‑‑Shariat Court had admitted for regular hearing the appeal filed bye complainant against acquittal of accused by the Trial Court‑‑‑App against acquittal dismissed by Shariat Court for want of prosecution‑‑‑Validity‑‑‑Section 423, Cr.P.C. enjoined upon the Court to dispose of the appeal on merits after it was admitted for hearing and the same could not be dismissed for non ­prosecution‑‑‑If the appellant or his Advocate was not present before the Shariat Court on the date when the case was called for hearing, this could not relieve the Shariat Court of its duty of perusing the record of the case and disposing of the appeal on merits by recording the reasons in support of the judgment proposed to be delivered, which was not done‑‑­Dismissal of appeal in default was not the judgment within the meaning of S.367, Cr.P.C.‑‑‑Impugned order passed by the Shariat Court was, therefore, set aside and the case was remanded for fresh decision on merits.

State v. Nazir Khan and others PLD 1983 SC (AJ&K) 1 ref.

Muhammad Farid Khan, Advocate for Appellant.

Syed Nazir Hussain Shah Kazmi, Advocate for Respondents.

Date of hearing: 28th February, 2002.

2002 P Cr. L J 1283

[Supreme Court (AJ&K)]

Before Sardar Said Muhammad Khan, C. J. and Khawqja Muhammad Saeed, J

NAZIR AHMED KHAN‑‑‑Appellant

Versus

THE STATE and another‑‑‑Respondents

Criminal Appeal No.21 and Criminal Miscellaneous No.10 of 2001, decided on 17th January, 2002.

(On appeal from the judgment of the Shariat Court, dated 17‑8‑2001 in Criminal Revision No.75 of 1998).

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

‑‑‑‑Ss. 497/498‑‑‑Bail‑‑‑Assessment of evidence‑‑‑Principle‑‑‑Court at bail stage are not expected to enter into deeper appreciation of evidence available on record, but they make a tentative assessment of the relevant material, i.e. F.I.R., recoveries, statements of prosecution witnesses and other evidence so far collected in the case‑‑‑Appellate Courts are also not expected to evaluate the evidence in a manner which may prejudice the case of either party before the Trial Court.

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

‑‑‑‑Ss. 497/498‑‑‑Court's observations‑‑‑Any observation recorded in bate matter by the Court must be considered to the extent of bail only and not in the main case.

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

‑‑‑‑S. 497‑‑‑Penal Code (XLV of 1860), Ss.302/324/147/148/149‑‑­Accused had been attributed the fatal injury opt the head of the deceased which according to medico‑legal report was sufficient to cause his death‑‑‑Said allegation contained in the F.I.R. was supported by the prosecution witnesses before the Trial Court‑‑‑Complainant and the deceased had come to the place of occurrence to rescue their father from the accused party and initially they (complainant and deceased) were not party to the occurrence‑‑‑Bail was refused to accused in circumstances.

Shabir Hussain v. The State PLD 1982 SC (AJ&K) 100; Muhammad Bashir and another v. The State PLD 1983 SC (AJ&K) 8; Ghulam Muhammad v. Khan Muhammad and others 1975 PCr.LJ 604 and Sardar Khan and others v. The State 1983 PCr.LJ 292 ref.

Ghulam Mustafa Mughal, Advocate for Appellant.

Syed Ejaz Ali Gilani, Assistant Advocate‑General for the State.

Nemo for Respondent No.2.

Date of hearing; 14th January, 2002.